ML20151Y486

NRC Staff Response to Intervenors Objections to Portions of 880229 & 0408 Realism Orders & Offer of Proof.* Board Requested to Reject Intervenor Objections to 880229 Order & Explanatory Memo & Offer of Proof.Certificate of Svc Encl

ML20151Y486
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/28/1988
From:	Matt Young NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#288-6203 OL-3, NUDOCS 8805050019
Download: ML20151Y486 (11)

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d. 2 d 3 04/28/88 e- 00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '88 HAY -3 PiS 50 cmcc c; e.~ ~ . , ,

BEFORE THE ATOMIC SAFETY AND LICENSING BOAPDDOC4igq',, t ,1 , ,

. . n .. - ,

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nucicar Power Station, )

Unit 1) )

NRC STAFF RESPONSE TO INTERVENORS' OBJECTIONS TO PORTIONS OF FEBRUARY 29 AND APRIL 8 REALISM ORDERS AND OFFER OF PROOF

l. INTRODUCTION By Order dated February 29, 1988, O the Board confirmed its denial of LlLCO's summary disposition motions concerning the realism contentions and provided guidance concerning the the litigation of the issues in this proceeding. Therein the Board stateci that 10 C.F.R. 6 50.47(c)(1) requires the Board to determine "whether the LILCO Plan with a best efforts or other response meets regulatory requirements." February 29 Order at 2.

Specifically, the Board stated that "[t]here is a presumption that the State and County response will follow the LILCO plan, a presumption rebuttable only by timely evidence that the Governments will follow a different but adequate and feasible plan that can be relied on or by other evidence of like kind." M. The Board: (1) reformulated the remaining 1/ Confirmatory Memorandum and Order (Ruling on LlLCO's Motions for Summary Disposition of Contentions 1, 2, 4, 5, 6, 7, 8, and 10, and Board Gu! dance on issues for Litigation)("February 29 Order").

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' contentions to incorporate the salient issue, the best efforts response of the State and County governments; (2) held that LILCO could meet its burden of proof under the contentions by putting forth a prima facie case which ad' dresses' tfie questions raised by the Commission in CLl-86-13 (i.e., that the Plan supplemented by a best efforts response will meet the standard that adequate protective measures can and will be taken in an emergency and thus, provides the reasonable assurance finding for operation); (3) held that the burden of going forward would shift to Intervenors to rebut the Plan with an affirmative showing of their projected response efforts, but any proffer of and ad hoc response must specify avallable resources and projected response actions including the time factors involved; and (4) held that intervenors would have to demonstrate that such best efforts response would not meet the adequacy standard with respect to the matters contested. M.at2-4 The Board further indicated it would amplify the judgments stated in the Order in a written opinion. M.at5.

Subsequently, by Memorandum dated April 8, 1988, the Board further explained its ruling on summary disposition and guidance for litigation under the new emergency planning rule. 2,/ On April 13, 1986, Intervenors filed (1) their objections to portions of the Order and Menorandum based on their position that the Board rulings "appear to preemptively bar Intervenors from filing full and truthful testimony" on

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Memorandum (Extension of Board's Ruling and opinion on LILCO Summary Disposition Motions of Legal Authority (Reallms) Contentions and Guidance to Parties on New Rule 10 C.F.R. 50.47(c)(1))

("Memorandum") .

their contentions and (2) made an offer of proof, pursuant to 10 C.F.R. 5 2.743(e), of the testimony they would file. Governments' Objection to Portions of February 29 and April 8 Orders in the Realism Remand and Offer of Proof,- April 13, 1988 ("Objection") . For the reasons stated below, the Board should (1) reject Intervenors' objections to the Board's rulings as both untimely and inconsistent with the new rule and (2) reject intervenors' offer of proof as falling to comport with the showing required under 10 C. F. R . 9 50.47(c)(1) to rebut the presumption that state and local governments will use or follow the Plan, ll. DISCUSSION Under the Realism Rule there are two presumptions. The first is irrebuttable -- stete and local governments will act in an radiological emergency to protect the health and safety of the public. 52 Fed. Reg. 42078, 42082 (November 3,1907) . The second is that it may be presumed that state and local authorities will look to the utility for guidance and generally follow its plan in an actual emergency. This presumption is to be rebutted only by a timely offer of an adequate and feasible state or local plan which would in fact be relied upon in an radiological emergency. M.

This latter presumption is premised upon the Commissions reasonable expectation that state and local governments will, in the absence of a state or local radiological plan, look to the utility plan for guidance and generally follow it or some other plan that exists. Id. The Commission based its judgment on the record in rulemaking that "strongly supports that proposition that state and local governments believe that a planned

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-n-response is preferable to an ad hoc one." M. at 42085. Throughout their filing , intervenors make it clear that they will respond to an emergency on an ad hoc basis, but refuse to specify either the resources available 'for their response, the actions that would be taken, or the time such actions would entall. E 3., Objections at 9, 14-18, 41-45. Thus it is evident that inter venors , contrary to the procedural orders of this Board, are refusing to set forth their projected response effort and will not aid any inquiry into their best efforts response, in addition, Intervenors state they would not authorize or permit LILCO/LERO to perform any of their assigned functions under the Plan (id,. at 42) and would seek to develop their case through cross-examination of LILCO and Staff witnesses to "demonstrate, among other things, that LILCO failed to present a prima facie case on the Legal Authority Contentions [1, 2, 4, 5, 6, 7, 8, and 10]," Objection at 13.

The purpose for Intervenors' refusal to make an affirmative showing of their best efforts response is that they seek to "put the matter before the courts." Objection, Direct Testimony of Patrick G. Halpin on Behalf of Suffolk County Concerning Contentions 1-2, 4-8, and 10, April 13, 1988, at 10. This position, although allegedly taken in good faith (see l ObJrc. tion at 1-4), obstructs the Board's inquiry into the adecuacy of the i

LILCO plan under the realism rule. The NRC is "obligated to consider a utility plan submitted in the absence of State and local government-approved plans" and has the "ultimate authority" to deterrnine whether the plan satisfies the requirements for licensing. CLl-83-13, 21 NRC 741, 743.

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, Contrary to Intervenors' assertion (Objections at 16), the Board's Order and Memorandum which provide that under the rule the Board must presume that the State and County will follow the Plan unless rebutted by a showing of a 'government plan that will be followed in an emergency is consistent with the plain terms of the realism rule. To read the word "may" in new rule as giving boards discretion regarding the presumption of best efforts response should be applied would be inconsistent with the Commission's intent to estab!!sh a "process by which a utility plan can be evaluated against the same standards that are used to evaluate a state or

local plan (with allowances made both for those areas in which compliance is infeasible because of governmental non-participation and for the compensatory measures proposed by the utility).' fd. at 42084. See NRC Staff Positions on Matters Raised in December 23, 1987 Confirmatory Order, January 15, 1988, at 2-7.

The fact that the Board's structuring of the proceeding consistent with the rule acts to "preemptively bar" evidence that the State and County would like to present concerning their refusal to use the LILCO Plan , rely on LILCO recormendations or advice, or seek to coordinate with LILCO their actions Ir response to a Shoreham emergency (Objection at 1-3, 5-6), is not grounds for the Board to disturb rulings which are proper under the rule. Rather, the harm or unfairness Intervenors' complain of is the direct result of their ittempt to ignore board orders and obstruct the NRC's licensing p ror.e ss . Efforts to withhold the showing required to rebut the presumption under the rule cannot obstruct the Commission's inquiry into the facts necessary to determine the adequacy of the LILCO pla n , CLI-86-14, 24 NRC 36, til (1986), or i

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1 "supercede the judgment of the NRC" on licensing matters, Citizens for an Orderly Energv Policy v. County of Suffolk, 604 F. Supp.1084, 1095 f (E.D.N.Y.1985), aff'd, 813 F.2d 570 (2d Cir.1987) (per curiam); Long Island Llahting Co.~ v. County of Suffolk, 628 F. Supp 654, 664-66 (1986).

The Commission makes it clear that the realism rule "amplifies and clarifies" the realism doctrine set out in its decision in CLI-86-13, 24 NRC 22 (1986). 52 Fed. Reg. at 420P4. In that decision, the Commission directed the Board to assume that best efforts of the State and County would use the LILCO plan as the best source of information and options."

24 NRC at 31, 33. Given that the Commission's direction was mandatory .

and that the sole purpose of the rule was to establish a process to meet l situations where state and local governments fall to participate in emergency planning, the Board properly concluded that the presumption that the utility plan would be followed absent some other plan was mandatory; and Intervenors may not avoid making an affirmative showino

, of their own best efforts.

The Board issued its order structuring of this proceeding under the Realism Rule on February 29. Intervenors' request of April 13, 1988, that the Board reconsider its rulings is thus out of time and should be rejected as untimely. See 10 C.F.R. 2.771. U 3/ Intervenors state that they have filed their objections based on the belief that a motion for reconsideration of the portions of the Orders "would likely be futile." Objection at 12. Whatever the caption of their pleading, it is clear that the purpose of the filing is to persuade the Board to "correct their erroncous rulings before the l

(FOOTNOTE CONTINUED ON NEXT PAGE) 1

The Board should also reject Intervenors offer of proof pursua.nt to 10 C.F.R. 2.743(f). As intervenors themselves state, the purpose of the testimony would be (1) to establish LILCO's lack of authority to implement is Plan and (2) the Intervenors' lack of authority to permit or authorize LILCO employees to perform their functions under the pla n . E J.,

Objections at 42-45. Such showing would be inconsistent with the inquiry under the Commission's rule, that is , the nature of a state or local government's best efforts response, in addition, Intervenors should not be permitted to establish their position concerning LILCO's legal authority through cross-examination since such inquiry is not relevant under the rule. Without evidence that another plan would, in fact be relied upon, the Board would be entitled to find in LILCO's favor if it determines LILCO's prima facie showing is adequate. LILCO's Plan has been found to generally meet the regulatory planning standards. 1.BP-85-12, 21 NRC 644 (1985); LBP-85-31, 22 NRC i

410 (1985), if Intervenors have no evidence to present which would enables the Board to evaluate the nature of best efforts, LILCO has met its burden in this proceeding and their is nothing for the Board to i consider in any hearing under CLI-86-13 and the Realism rule. There is no evidence that can be presented to properly rebut the presumption in 10 C.F.R. I 50.47(c)(1) that the Government would not act on an g hoc l

(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) errors permenantly taint this entire proceeding." Id. at 14. This statement clearly shows that intervenors request reconsideration of

allegedly erroneous rulings in the February 29 Order as expaneded q by the later Memorandum, l

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. t basis but would follow :he LlLCO Plan. With the recent closing of the discovery period and under the terms of the Board's ruling, Intervenors ,

are now in default in this proceeding. As such, they are subject to

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appropria'te sanctions for failure to comply with Board Orders. Statement ,

of Policy on Conduct of Licensing Proceedings, C LI-81 -8, 13 NRC 452 (1981). S Ill. CONCLUSION For the reasons discussed above, the Board should reject Intervenors' objections to the February 29 Order and the explanato y Memorandum and reject Intervenors' offer of proof.

Respectfully submitted, Mitz A. Young Y .

Counsel for NRC Staff Dated at Rockville. Maryland this 28th day of April,1988 i

i 4/ The Applicant, in their response to Intervenors' Objections, asks that the Board (1) dismiss Intervenors' contentions or (2), in the l

alternative, rule that the subject of the "realism" hearing is only  ;

whether LILCO's procedure for dealing with the State and County is adequate, and dismiss that issue because of intervenors' failure to i reveal such facts. LILCO's Response To Governments' Objection to Portions of February 29 and April 8 Order in the Realism Remand and Offer of Proof, April 22, 1988, at 2, 26. The Staff believes dismissal of this proceeding for default would be appropriate.

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• DOCKEiEP USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '88 MY -3 P6 :30 BEFORE THE ATOMIC SAFETY AND LICENSING BOARkOC BIN

, . BRANU in 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 "NRC STAFF RESPONSE TO INTERVENORS' OBJECTIONS TO PORTIONS OF FEBRUARY 29 AND APRIL 8 REALISM ORDERS AND OFFER OF PROOF" in the above-captioned proceeding have been served on the following by deposit in the United States mall, first class or, as Indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mall system, this 28th day of April 1988 James P. Gleason, Chairman

• Jerry R. Kline*

Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Frederick J. Shon* Jonathan D. Feinberg, Esq.

Administrative Judge New York State Department of Atomic Safety and Licensing Public Service Board Three Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY 12223 Washington, DC 20555 Joel Blau, Esq. Fabian G. Palomino, Esq.

i Director, Utility intervention Special Counsel to the Governor Suite 1020 Executive Chamber 99 Washington Avenue State Capitol Albcny, NY 12210 Albany, NY 122221

. 2 Philip McIntire W. Taylor Reveley 111, Esq.

Federal Emergency Management Donald P. Irwin, Esq.

Agency Hunton & Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212 Stephen B. Latham, Esq. Herbert H. Brown, Esq.

Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.

Attorneys at Law Karla J. Letsche, Esq.

33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1000 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel

• U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Agency Building 2 Atomic Safety and Licensing Empire State Plaza Appeal Board Panel

• Albany, NY 12223 U.S. Nuclear Regulatory Commission Washington, DC 20555 Spence W. Perry, Esq.

Martin Bradley Ashare, Esq. General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Anthony F. Earley, Jr. Alfred L. Nardelli, Esq.

New York State Department of Law General Counsel 120 Rroadway Long Island Light Company Room 3-118 175 East Old Country Road New York, NY 10271 Hicksville, NY 11801 Dr. Monroe Schneider Ms. Nora Bredes North Shore Committee Shoreham Opponents Coalition

, P.O. Box 231 195 East Main Street Wading River, NY 11792 Smithtown, NY 11787 William R. Cumming, Esq. Barbara Newman Office of General Counsel Director, Environmental Health Federal Emergency Management Agency Coalition for Safe Living 500 C Street, SW Box 944 hashington, DC 20472 Huntington, New York 11743 l

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- Dr. Robert Hoffman Docketing and Service Section*

Long Island Coalition for Safe Office of the Secretary Living U.S. Nuclear Regulatcry Commission P.O. Box 1355 Washington, DC 20555 Massapequa, NY 11758 Dr. W. Reed Johnson 115 Falcon . Drive, . Col.thurst Charlottesville, VA 22901 Mitzt 4. Ydung ' V CounseMor NRC Staff i

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