ML20151Z235

Memorandum & Order Rejecting County of Suffolk,State of Ny & Town of Southampton 860122 Request for Order to Produce Requested Documents & Info & Permit Govts to Attend Meetings Re Proposed Emergency Planning Exercises.Served on 860213

ML20151Z235
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/13/1986
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY
References
CON-#186-063, CON-#186-63 OL-3, NUDOCS 8602140105
Download: ML20151Z235 (4)

Text

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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COLMETEc USNHC COMMISSIONERS: g .g g Nunzio J. Palladino, Chairman Thomas M. Roberts QFFittb.

James K. Asselstine DOCMET:!as l,M $ ,

BRANCH Frederick M. Bernthal Lando W. Zech, Jr.

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY Docket ho. 50-322 OL-3 (Shoreham Nuclear Power Station) )

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MEMORANDUM AND ORDER In a " Motion Concerning Proposed Emerge,cy Planning Exercises," dated January 22, 1986 but not received by the Commission until January 27, 1986, the County of Suffolk, the State of New York, and the Town of Southampton (the Governments or Movants) seek a Commission Order, pursuant to 10 CFR @ 2.740(f),

compelling the NRC Staff, Long Island Lighting Company (LILCO), and the Federal Emergency Management Agency (FEMA) "to produce requested documents, to provide ... reauested information, and to permit the Governments to attend meetings, concerning ... proposed [ emergency planning] exercises" for the Shoreham Nuclear Power Station. Motion at 3. The request conflicts with the provisions of 10 CFR 9 2.740(b)(1) and is hereby rejected.

Movants assert that the NRC Staff, FEMA, and LILC0 have withheld information from them about preparations for a February 13, 1986 emergency plan-e ning exercise for Shoreham. Although not specified in the motior, we glean from the requests attached to the motic, that the County has sought copies of all documents which pertain to the exercise, advance notice of all meetings concerning the exercise, lists of attendees at and summaries of past meetings, 8602140105 860213 P = "8 i" DSo Z_

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and identification of all NRC personnel involved in the preparation or conduct of the exercise.

It is the Commission's policy to be as forthcoming.to State and local ,

governments as reasonably possible about information regarding upcoming exercises, and the NRC Staff and licensees are expected to abide by this policy-in their informal interchanges with State and local officials. However, this case is unusual. The County's efforts to impose criminal sanctions on exercise participants may have had a natural tendency to chill the informal dialogue that normally occurs between utility, Federal, State and local empi.oyees. Were the County to have clearly stated- that it did not intend to interfere with the conduct of the scheduled emergency planning exercise by criminal actions under its newly-enacted Local Law 2-86 or otherwise, a possible understandable reluctance to speak informally to County representatives about the exercise would have disappeared. Unfortunately, the County took the opposite course and applied the new Local Law to disapprove of the exercise, and thereby subjected some of the exercise participants to possible criminal sanctions. On February 10, 1986, the U.S. District Court for the Eastern District of New York issued a preliminary injunction prohibiting enforcement of the Local Law to obstruct the exercise.

However, the motion before us seeks formal discovery against various persons, and therefore must be judged according to the Comission's Rules of Practice in 10 CFR Part 2. Under 10 CFR 2.740(b)(1), formal discovery is allowed only on admitted contentions, and "no discovery shall be had after the beginning of the prehearing conference held pursuant to @ 2.752 excupt upon leave of the presiding officer for good cause shown." The motion before us does not explain why there is good cause for untimely discovery on the admitted emergency planning contentions. Moreover, we question whether good cause could

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exist in light of the statements by LILC0 and the Staff that the State and County already have copies of the emergency plan, a description of the exercise, and many other documents related to the exercise, and in light of the failure of the State and County to agree to confidentiality as to documents and meetings concerning development of the exercise scenario.1 Limited confidentiality was absolutely necessary to preserve the integrity of the exercise process and ensure that applicant's employees did not learn of the exercise scenario. The correspondence attached to the motion suggests that FEMA offered to include the County in the exercise planning process if it agreed to such confidentiality, but,the County declined this invitation. Much controversy and delay in provid-ing information could have been avoided had it reconsidered its position on confidentiality.

In sum, Movants do not show good cause for allowing untimely discovery, and i offer no reason to believe that later discovery, after completion of the exercise, would be inadequate.

Movants also express concerns regarding ex parte communications. The Commission's ex parte rule in 10 CFR % 2.780 applies to "any substantive natter at issue in a proceeding on the record then pending before the flRC ...." While some issues are pending in the Shoreham adjudication regarding the adequacy of the LILC0 emergency plan, the scheduling and planning for the conduct of the exercise itself are not pending adjudicatory issues and hence do not give rise to ex parte concerns.

1 Also, while section 2.740 parmits discovery on " contested issues," the scheduling of and planning for the exercise -- which appear to be the subject of the bulk of the document requests -- are not adjudicatory issues, in contrast to the adequacy of the plan and its implementability.

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Last, we note that while the Governments in their January 22 motion sought relief from the Comission as to activities which were to occur on January 29 Movants filed their motion to the Comission using ordinary mail, thereby virtually assuring that the motion would not be received for several days. In fact, the motion was not formally received by the Secretary until January 27, 1986. For the future, Movants should consider whether.all parties would be better served in tight time situations by hand delivery or express mail delivery to the Secretary of the Comission.

Chairman Palladino did not participate in this action. Comissioner Asselstine abstained from this action.

It is so ORDERED.

For the Comission "gD =c .;,~

,bt i L ySecretary SAMUEL J y.LK of the Comission

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Dated at Washington, DC O

this l 3 day of February, 1986 Chairman Palladino was not present to participate in this action.

Comissioner Bernthal was not present when this action was voted on. If he had been present, he would have approv?d it.

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