ML20195J094
| ML20195J094 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/15/1988 |
| From: | Latham S, Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | |
| References | |
| CON-#188-5372 CLI-86-13, OL-3, NUDOCS 8801210161 | |
| Download: ML20195J094 (9) | |
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f 50 00CXETED USHRC January 15.13881AN 20 P3 :02 UNITED STATES OF AMERICA 0FFICE 0; EEcrn.my 00CKEi
' Eiiv!q NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
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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)
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RESPONSE OF THE GOVERNMENTS TO THE BOARD'S DECEMBER 23.1987 CONFIRMATORY MEMORANDUM AND ORDER _
Suffolk County, the State of New York, and the Town of Southampton (collec-tively, the "Governments') respond below to the Board's requests contained in the Con-firmatory Mamorandum and Order (Ruling on Government's Motion for Postponement of 1
Consideration of LILCO's Summary Disposition Motion Pending Issuance of Board Guld-ance and Board Report for Briefing Papers)(sic), dated December 23,1987.
1 BOARD REQUEST 1: "If necessary to amplify prior references to the subject, a brief paper on the Commission's meaning of the word "may" in the phrase in the new rule "it may be presumed that in the event of an actual radiological emer-gency state and local officials would generally follow the utility plan."
See 10 C.F.R. 50.47(cM1)."
The Governments believe that their previous filings concerning the impact of the new rule on the CLI-86-13 remand proceeding adequately and completely address the matter raised by the Board. For the sake of brevity, we do not repeat the prior discus-8801210161 880115 PDR ADOCK 0S000322 O3 G
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e sions here, but refer the Board to the Governments' Brief of November 17,1987,l/ spe-cifically pages 6-8, and the Governments' November 30,1987 Reply Brief,$/ particularly pages 9-12.
The referenced portions of the Governments' previous filings make clear that the Commission's use of the word "may" in providing "guidance" to Licensing Boards about the possible use of a presumption appears to have been quite deliberate. It stands in stark contrast to its use of mandatory language ("will") in other portions of the new rule.
The previous filings explain further why it is necessary to construe the Commission's use of the permissive "may" - rather than the mandatory "shall" or "will" - according to the plain and unequivocal meaning of the term. Accordingly, in context, the meaning of the -
quoted phrase from the new rule is that in particular adjudications, Licensing Boards are permitted to - that is, they may, or they may not presume that state or local afficials would generally follow a utility plan in the event of a radiological emergency, depending upon whether the facts and evidence in each particular adjudication make such a pre-sumption appropriate. In this proceeding, the Licensing Board has already answered the question whether such a presumption is appropriate. In the September 17,1987 Memo-randum and C'rder, this Board ruled that be,ed upon the evidence of record, no such 4
presumption can be made in this adjudication. See LBP-87-26, at 25-27 l
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Brief of Suffolk County, the State of New York and the Town of Southampton on the Effect of the Commission's October 29, 1987 Rule on the CLI-86-13 Remand Proceeding (Nov. 17, 1987).
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Governments' Reply to Views and Supplemental Briefs of LILCO and the NRC Staff Concerning the CLI-86-13 Romand Proceeding and the Impact of the October 29 Rule on that Proces: ling (Nov. 30,1987)..
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BOARD REQUEST 2: "The applicability of the new rule to Appendix E of 10 C.F.R. 50.47(c)(1) and more specifically whether compliance with the new rule is tantamount to compliance with Anoendix E."
A review of the text of the new rule itself provides the answer to this Board inquiry. Except with respect to the full participation exercise requirement in Section IV.F of Appendix E which the new rule expressly amended, the new rule does not change, and provides no way to avoid, the requirement of compliance with the provisions of Appendix E.
First, the rule makes unequivocally clear that the amended subpart (c)(1) of Sec-tion 50.47 is intended to address an applicant's non-compliance with subpart (b) of that section - and nothing else. Second, the Commission was well aware of the requirements, separate from those in subpart (b), which are contained in Appendix E3 indeed, the Commission expressly amended the one provision of Appendix E which it chose to have affected by its new rule. Third, a comparison of the version of the new rule as originally proposed for public comment with the one finally adopted, indicates that the Commission made an explicit decision not to include non-compliance with the requirements of Appendix E in its amendment of subpart (c)(1).
For these reasons which we discuss separately below, the answer to the Board's second inquiry is "No,":
"compliance" with the new subpart (c)(1), or the obtaining of favorable findings under that subpart, are not "tantamount" to compliance with the requirements of Part 50 Appendix E. The separate requirements of Appendix E must be satisfied apart from, and regardless of whatever resolution is reached with respect to, compliance with subpart (c)(1) of Section 50.47..
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Amended subpart (c)(1) addresses only non-compliance with suboart (b) of Section 50 47 The new rule states four tinies that it deals with an applicant's inability to comply with the requirements in subpart (b):
- "Failure to meet the aoolicable standards set forth in para _-
graoh (b) of this section may result in the Commission declining to issue an operating license...."
"Where an applMant... asserts that its inability to demon _-
strate comollance with the recuirements of paragraph (b) of this section results wholly or substantially from the decision of state and/or local governments tot to participate...."
- (i) The applicant's inability to comply with the recuirements of paranraph (b) of this section is wholly or substantially the result of non participatica...."
- "In addressing the circumstance where applicant's inability to comniv with the recuirements of oaranraoh (b) of this section is wholly or substantially the result of non participation...."
52 Fed. Reg. 42085-86 (emphasis added). Nowhere is it suggested, in the rule text or elsewhere, that the amended subpart (c)(1) is intended to deal with non-compliance with any requirements other than those in subpart (b) of Section 50.47, 2.
'Ibe Commission addressed, and amended, the portions of Appendix E which it intended to have affected by the provisions of the new suboart (cXI)
Obviously, in adopting its new rule the Commission was well aware of the re-quirements which are set forth in Appendix E to Part 50. This is evidenced particularly by its decision to amend one of those Appendix E requirements. The Commission added a new paragraph 6 to Section IV.F of Appendix E, providing that contrary to the require-ment of existing paragraph 3 of Section IV.F, participation of state and local govern-ments in an exercise "is not required to the extent that the appli: ant has identified those. _.
N governments as refusing to participate further in emergency planning activities, pursuant to 10 CFR 50.47(c)(1)." It is significant, however, that the Commission chose to address only that one Appendix E requirement. That fact precludes any inference that the Commission intended its new rule to impact any other provisions of Appendix E.
3.
A comparison of the rule as proposed for public comment with the rule as adopted manifests the Commission's Cecision to limit the applicability of the amended subpart (c)(1) to r.on-compliance with suboart (b) and to uclude the requirements of Annaadix E The version of the new rule which was published for public comment differed in many respects from the version which was adopted. One difference is dispositive of the Board's inquiry concerning Appendix E.
As originally proposed, the amendment of Section 50.47 was to consist of the addition of a new subpart (e), to read, in pertinent part, as follows:
(e) The Commission may issue a full power operating license for a facility notwl hstanding non-compliance with other re_qu!rements of this section and 10 CFR Part 50 Appendix E is (sic] non-com-pliance arises substantially from a lack of participation in emer-gency planning by a State or local government, and if the appil-cant demonstrates to the Commission's satisfaction that. -..
52 Fmi. Reg. 6981 (March 6,1987) (emphasis added). Obviously, prior to adoption of the final version of the amendment, the Commission decided to abandon the broader provi-sion (covering Appendix E and all of Section 50.47) that it had originally proposed.
Instead, it decided to have the new provision concerning non participating governments apply only to non-compliance with the provisions of subpart (b) of Section 50.47. Thus, it removed from the adopted version of the amendment references to "other requirements" of Section 50.47, and to Appendix E, except for the addition of the one new paragraph 6 to Appendix E,Section IV.F. The Governments submit that this drafting decision by the Commission is dispositive of the Board's second inquiry. The Commission did not intend..
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the new rule as adopted to provide a mechanism to avoid the requirement of compliance with Appendix E requirements other than the exercise participation requirement which it i
expressly amended.
Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 Lawren Karla J.(e Coe Lanpherf Letsche KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County CHLu w Fabian G. Palomino Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York pht )
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vb St'ephef B. Latham Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton _
6 DCCKETED USNRC January 15.1988 UNITED STATES OF AMERICA
'88 JAN 20 P3:02 NUCLEAR REGULATORY. COMMISSION Before the Atomic Safety and Licensinst Board
[0CKEi Nb
[df BRANCH
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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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(Emerge icy Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of RESPONSE OF THE GOVERNMENTS TO THE BOARD'S DECEMBER 23,1987 CONFIRMATORY MEMORANDUM AND ORDER have been served on the following this 15th day of January,1988 by U.S. mail, first class.
James P. Gleason, Chairman Mr. Frederick J. Shon Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 James P. Gleason, Chairman William R. Cumming, Esq.
513 Gamoure Drive Spence W. Perry, Esq.
Silver Spring, Maryland 20901 Office of General Counsel Federal Emergency Management Agency Dr. Jerry R. Kline 500 C Street, S.W., Room 840 Atomic Safety and Licensing Board Washington, D.C. 20472 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 W. Taylor Reveley, III, Esq.
Hunton 8e Williams Fabian G. Palomino, Esq.
P.O. Box 1535 Richr.rd J. Zahnleuter, Esq.
707 East Main Street Special Counsel to the Governor Richmond, Virginia 23212 Executive Chamber, Rm. 229 State Capitol Albany, New York 12224 l
a.
I 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. Thomas Boyle, Esq.
Ms. Elisabeth '.aibbi, Clerk Suffolk County Attorney Suffolk Coun'y Legislature Bldg.158 North County Complex Suffolk Cou.4ty Legislature Veterans Memorial Highway Office ".,uilding 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 117"2 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 Washington, D.C. 20555 Alfred L. Nardelli, Esq.
Hon. Patrick G. Halpin Asshitant Attorney General Suffolk County Executive New York State Department of Law H. Lee Dennison Building 120 Broadway, Room 3-118 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB rechr.ical 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 George E. Johnson, Esq.
New York State Energy Office Edwin J. Reis, Esq.
Agency Building 2 U.S Nuclear Regulatory Comm.
Empire State Plaza Office of General Counsel Albany, New York 12223 Washington, D.C. 20555 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
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Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771 kG.
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Karla J. Letschef KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor i
Washington, D.C. 20036-5891 a
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