ML20196D742

Overview Memorandum in Support of Govts Opposition to Lilco Motions for Summary Disposition of Contentions 1-2 & 4-10.* Lilco Motion Must Be Denied

ML20196D742
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/10/1988
From:	Latham S, Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20196D722	List: ML20196D718 ML20196D742 ML20196D777 ML20196D796 ML20196D803 ML20196D812 ML20196D817 ML20196D823
References
OL-3, NUDOCS 8802180053
Download: ML20196D742 (83)

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'88 FEB 17 N0:15 February 10, 1938 UNITED STA @]' " Nk NGCLEAR REGULWrO ISSION Before the Atcmic Safety and Licensino Board

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

OVERVIEW MEMORANDUM IN SUPPORT OF GOVERNMENTS' OPPOSITION TO LILCO'S MOTIONS FOR

SUMMARY

DISPOSITION OF CONTENTIONS 1-2 AND 4-10 8802180053 880210 PDR ADOCK 05000322 O PDR

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e iv TABLE OF CONTENTS Pace I. Organization of Response.................................... 2 II. Summary of Reasons that LILCO's Motions Must be Denied...... 4 III. The New Rule Does Not Provide a Basis for Granting LILCO's Motions............................................. 10 A. Introduction............................................ 10 B. The Presumption in the New Rule Is Not Mandatory and It Cannot Be Adopted in this Case................... 18

1. LILCO Ignores the Language in the New Rule Itself..................................... 18

2. Based on the Facts and Evidence Presented in This Case, the Non-Mandatory Presumption Cannot Be Adopted with Respect to the State of New York and Suffolk County.................................. 20 (i) The Board Has Already Ruled that the Presumption Is Contrary to the Evidence in This Case................................... 21 (ii) There Is No Basis to Argue that the Board's Prior Rulings Should be Changed........ 22

3. Even Assuming, Arguendo, that the Presumption Could be Adopted in This Proceeding, It Has Already Been Rebutted............................... 26 C. The Presumption in the New Rule Can Be Rebutted by Showings Different From the One Provided as an Example in that Rule................................. 28 D. Even Assuming, Arguendo, that the Governments Needed to Rebut the Presumption a Second Time, They Have Done So................................................. 29 IV. LILCO Bears the Burden of Going Forward and the Burden of Proof in this CLI-86-13 Remand Proceeding,-and Bears a Heavy Burden in Moving for Summary Disposition............ 33 i -

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4 Page A. The Governments Have More than Satisfied Their Burden of Going Forward on Contentions 1-10 by. Prevailing on the Legal Authority Issues Raised by Them............ 34 B. The CLI-86-13 Remand Proceeding Is Focused on LILCO's "Realism" Affirmative Defense to Contentions 1-10....... 35 C. The Burden of Going Forward, and the Burden of Proof, on its Realism Affirmative Defense Rest on LILCO........ 36 D. The New Rule Does Not Support or Justify Any Change in Burden Allocation in This Case....................... 38 E. LILCO Has Not Carried its Burden Under Section 2.749.... 40 V. LILCO's Summary Disposition Motions Are Barred by the Doctrine of Res Judicata.................................... 41 VI. The Exercise Board's February 1, 1988 Decision Requires Summary Rejection of LILCO's Motions........................ 49 A. LERO's Communications Capabilities and the Communications Structure in the LILCO Plan.............. 54 B. LILCO's Training Program and the Capabilities of "Trained" LERO Workers............................... 57 C. LILCO's Capabilities to Provide Emergency Information to the Public............................... 61 D. LILCO's Capabilities to Mobilize LERO Workers in the Field............................................ 62 VII. Discussion of Other LILCO Arguments......................... 63 A. The Police Power Determinations of the State and County Do Not "Challenge" Any NRC Regulations........... 63 B. New York Law Does Not Require or Permit Government Reliance Upon LILCO or LERO............................. 66 C. Other Emergency Response Plans Are Irrelevant to the Question of the Adequacy of LILCO's Plan or of a "Best Efforts" Government Response to a Shoreham Emergency... 67

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,1. Irrelevance As A' Matter of Law...................... 68'

2. Asea Factual Matter, Other' Plans of Other Counties for Other Plants Are Irrelevant-to the Qocstion of Whether LILCO's Plan is. Adequate... 70

3. Plans of Other Counties for Other Plants are Irrelevant to the-Question of the Adequacy of a."Best Efforts" Response of Suffolk County to a Shoreham Emergency............................o... .71 -

D. The Draft NUREG-0654 Supplement Must be Ignored........ 72 E. LILCO's Summary Disposition Motions are Premature....... 76 VIII. Conclusion................................................. 77

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4 February 10, 1988 >

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Board

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

OVERVIEW MEMORANDUM IN SUPPORT OF GOVERNMENTS' OPPOSITION TO LILCO'S MOTIONS LOR SQMMARY DISPOSITION OF CONTENTIONS 1-2 AND 4-10 On December 18, 1987, L:LCO filed seven motions for summary disposition of Contentions 1-2 and 4-10, the so-called "legal authority contentions." Two of those motions have already been answered.1/ Suffolk County, the State of New York, and the Town of Southampton ("Governments") hereby respond to LILCO's five remaining motions for summary disposition on Contentions 1-10 --

the Motions on Contentions 5 and 6, 1 and 2, 10, 4 and 9, and 7 1/ The Governments responded to LILCO's summary disposition motion on 10 CFR S 50.47(c)(1)(1)-(ii) and to the Staff's support thereof in filings dated Janua'yr 19, 1988, and February 1, 1988, respectively. The Governments responded to LILCO's "immateri-ality" motion relating to Contentions 1, 2, and 9 on February 1, 1988. They will respond to the NRC Staff's answer in support of LILCO's motion as provided by IO CFR S 2.749(a).

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and 8 (the "LILCO Motions").2/ The Governments also respond to matters contained in LILCO's "Introduction:- Memorandum of Law on LILCO's Motions for Summary Disposition of Contentions 1-2 and 4-10," (hereafter, "LILCO Memorandum"), which constitutes an overview document providing purported bases for all of LILCO's cummary disposition motions.

I. Oraanization of Resocnse The Governments' response to the LILCO Motions and to the LILCO Memorandum is organized as follows. In this Overview Memorandum, the Governments address matters of general applica-bility, i.e., matters which do not pertain solely to a particular summary disposition motion. Thus, the subjects addressed below include the meaning and applicability in this proceeding of the NRC's amended rule, the impact of the Exercise Licensing Board's recent Initial Decision (LBP-88-2), and similar matters which are pertinent to all LILCO's Motions or which were discussed in the LILCO Memorandum. In five separate Answers, the Governments respond specifically to matters raised in each of LILCO's separate Motions, making apprcpriate references to arguments contained in this Overview Memorandum. Each Answer includes a 2/ 11R LILCO's Motion for Summary Disposition of Contentions 5 and 6 (Making Decisions and Telling the Public); LILCO's Motion for Summary Disposition of Contentions 1 and 2 (D;recting Traffic); LILCO's Motion for Summary Disposition of Contention 10

' (Access Control at the EPZ Perimeter); LILCO's Motion for Summary Disposition of Contentions 4 and 9 (Tow Trucks and Fuel Trucks);

and LILCO's Motion for Summary Disposition of Contentions 7 and 8 (Ingestion Pat hway and Recovery and Reentry) . The individual

, motions are hereafter referred to as "LILCO S/6 Motion," "LILCO f 1/2 Motion," etc.

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Statement of Material Facts as to which there Exist Genuine Issues to be Heard with respect to the particular Motion addressed in that Answer.

The Governments' Answers and this Overview Memorandum are supported by a number of affidavits. These affidavits are contained in a separate volume entitled "Affidavits in Support of

. Governments' Opposition to LILCO's Summary Disposition Motions on Contentions 1-2 and 4-10." The following affidavits are included therein:

Affidavit of Mario M. Cuomo, Governor of the State of New York, Feb. 8, 1988 ("Cuomo Affidavit")

Affidavit of Patrick G. Halpin, Suffolk County Executive, Feb. 9, 1988 ("Halpin Affidavit")

Affidavit of Richard C. Roberts, Suffolk County Police Department, Feb. 9, 1988 ("Roberts 1988 Affidavit")

Affidavit of Richard C. Roberts, Suffolk County Police Department, Sept. 25, 1s84 ("Roberts 1984 Affidavit")

Affidavit of James E. Papile, James C. Baranski, and Lawrence B. Czech, New York State Radiological Emergency Preparedness Group, Feb. 10, 1988 ("REPG Affidavit")

Affidavit of James E. Papile, New York State Radio-logical Emergency Preparedness Group, May 11, 1987

("Papile Affidavit")

Affidavit of Karla J. Letsche, Kirkpatrick & Lockhart, reb. 10, 1988 ("Letsche Affidavit")

Affidavit of Richard J. Zahnleuter, State of New York, Feb. 10, 1988 ("Zahnleuter Affidavit")

II. Summary of Reasons that LILCO's Motions Must be Denied

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LILCO's Motions must all be denied. In large part, the Motions are premised on no new facts or arguments. On September 17, 1987, this Board rejected virtually identical arguments made by LILCO in its March 20, 1987, Second Renewed Motion for Summary Disposition of the Legal Authority Issues (the "March 1987 Motion"). In essence, LILCO urges that the NRC's recent amendment of 10 CFR 5 50.47(c)(1)3/ has overturned the law of this case (i.e., both CLI-86-13 4 / and this Board's September 17 Order)l/ and compels sweeping rulings in LILCO's favor on the facts and the law, without benefit of hearing or evidence.

The NRC's new rule has no such sweeping effects. Indeed, to adopt LILCO's interpretation of the new rule or its proposed application in this adjudication would require this Board to reverse its own prior rulings, to act in violation of CLI-86-13,

! and to close its eyes to, and refuse to engage in, the case-specific fact finding which the new rule expressly requires.

3/ Egg 52 Fed. Reg. 42,078-87 (Nov. 3, 1987).

1/ Lona Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22 (1986).

l l 5/ Egg Memorandum and Order (Ruling on Applicant's Motions of March 20, 1987, for Summary Disposition of the Legal Authority Issues and of May 22, 1987, for Leave to File a Reply and Interpreting Rulings Made by the Commission in CLI-86-13 Involving the Remard of the Realism Issue and Its Effect on the i Legal Authority Question), LBP-87-26, NRC (Sept. 17, 1

1987) (hereafter "September 17 Order").

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The Governments' Answers to LILCO's individual Motions set forth many. specific reasons why each individual' Motion is deficient and must be denied. In this Overview Memorandum, the Governments do not repeat those reasons. We summarize below, however, several reasons which are applicable to all LILCO's Motions. Each of these reasons requires that all LILCO's Motions be denied.

First, LILCO's Motions are premised on a gross misinterpre-tation and misapplication of the Commission's amended rule. They also seek a result which is contrary to the settled "law of the case" in this proceeding, as established by the Commission in CLI-86-13 and this Board's September 17 Order.

LILCO interprets the new rule as doing away with any re-quirement for fact finding concerning the nature, adequacy, or regulatory compliance of a "best efforts" governmental response to a radiological emergency. Instead, LILCO asserts that under the new rule, the mere invocation of the phrase "best efforts,"

followed by LILCO asserted theories and speculations as to what the Governments' best efforts "would" be, is sufficient, with nothing more, to permit this Board to "find": (1) that the Governments will do in an emergency whatever LILCO hypothesizes; (2) that those actions by the Governments would be adequate and in compliance with the regulatory requirements cited in

Contentions 1-2 and 4-10; and (3) that such hypothesized Govern-

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mental actions would permit the Board to make the reasonable assurance finding required by Section 50.47(a)(1) and by the amended Section 50.47(c)(1)(iii).

The mere statement of LILCO's request is enough to demon-strate that it must be rejected. The new rule calls for no such whole scale reversal of either CLI-86-13 or this Board's September 17 Order. Indeed, the new rule stresses over and over that it is to be applied in case-by-case adjudications, based upon the facts and evidence presented in individual proceedings.

Indeed, the NRC stressed in the rulemaking that the rule did not mean that Shoreham would be licensed but, rather, the licensing of any plant "would depend on the record developed in a specific adjudication . . . . 52 Fed. Reg. 42,081. There has been no such adjudication in this proceeding. Indeed, in its September 17 Order, this Licensing Board made absolutely clear that the factual and evidentiary record compiled thus far in this proceeding does not support any findings regarding the nature of a "best efforts" governmental response to a Shoreham emergency, much tess that it would be adequate and in compliance with regulatory requirements.

The new rule is consistent with the September 17 Order.

Thus, while the new rule reaffirmed the CLI-86-13 assumption that Governments would use their "best efforts" in responding to an emergency, it left it to individual licensing boards to decide,

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braed on case-specific evidentiary records, whether a "best efforts" response would be adequate, and whether such a response would permit a finding of reasonable assu'ancer that adequate protective measures can and will be taken. Egg 10 CFR Section 50.47(c)(1)(iii). LILCO's interpretation and' proposed appli-cation of the new rule is thus unfounded and challenges the established law of this case.

LILCO's Motions also challenge the law of this case by ignoring this Board's prior rulings that summary disposition of LILCO's realism defense to contentions 1-10 cannot be granted, given the existing evidentiary record concerning the nature of a "best efforts" response by Suffolk County and the State of New York to a Shoreham emergency. Thus, LILCO's Motions ignore the undisputed facts: neither New York State nor Suffolk County would rely upon LILCO's Plan or its personnel, or work in partnership with LILCO, or authorize LILCO to perform functions identified in Contentions 1-2 and 4-10, in responding to a Shoreham emergency. As the Board recognized in its September 17 Order, the Governments have set forth these facts, and their bases, in detailed sworn affidavits. Additional Affidavits l submitted herewith provide even more detail. The Governments' i

Affidavits establish as uncontroverted fact in this proceeding, that Suffolk County and the State of New York, in the exercise of l

their police powers, have concluded that it would not be in the interest of their citizens for them to rely upon LILCO or LILCO's

L Plan, in the event of a Shoreham emergency, and that, accordingly, they will not do so. These uncontroverted sworn

. statements in the evidentiary record, from the very officials who would implement the "best efforts" response at issue, cannot be ignored by'this Board.

Second, LILCO's Motions are also premised fundamentally on another argunent which this Board has definitively rejected three times. Settled principles of rga iudicata require that LILCO's latest attempt to relitigate an issue it has lost must be rejected.

LILCO's concept of "realism" and "best efforts" assumes that in the event of a radiological emergency at Shoreham, the Govern-ments will give LERO personnel "permission" or "authorization" to perform emergency response functions, including, among others, those specified in Contentions 1-2 and 4-10. LILCO asserts that neither the Governments' authorization of LILCO personnel to perform such police power functions, nor such performances by LERO personnel, would run afoul of Cuomo v. LILCO. The law of this case is exactly the ocoosite. This Licensing Board, on three crior occasions, has squarely rejected this very argument by LILCO. Thus, in both the Partial Initial Decision ("PID") of April 17, 1985,5/ and in the Board's September 17 Order, this Board definitively ruled, with precision and clarity, that f/ Egg Lono Island Lichtina Comoany (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644, 911 (1985).

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.c LILCO's proposed "realism" scenario is, in fact, unlawful under Cuomo v. LILCO and thus must be rejected. The new rule does not purport to change this rule of law, nor could it since the NRC has no authority to override state law or a decision of the New York State Supreme Court. LILCO's attempt to reargue-this matter for a fourth time cannot be tolerated.

Third, the Frye Licensing Board's February 1, 1988 Initial Decisionl/ compels summary rejection of the LILCO Motions.

LILCO's Motions are premised fundamentally on LILCO's assertion that the LILCO Plan has been "approved," judged to be adequate and found to comply with the NRC's regulations. Thus, LILCO's Motions assert that the combination of the allegedly adequate and approved LILCO Plan, and actions by allegedly well-trained LERO workers who would communicate essential information and advice to the Governments and would assist the Governments (with their permission) by implementing emergency response actions, together with the "best efforts" of the Governments, would result in a response to a Shoreham emergency which satisfies the reasonable assurance standard of 10 CFR S 50.47(c)(1)(iii).

The Exercise Decision renders baseless every element of LILCO's "realism" and "best efforts" scenario. First, there is no adequate Shoreham plan. The Exercise Board determined that 1/ Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-88-2, NRC (Feb. 1, 1988) (hereafter "Exercise Decision").

the LILCO Plan is fundamentally flawed. Second, there is no well trained-LERO orgsnization capable of communicating with the Governments, or of implementing emergency functions or~the LILCO Plan, with or without official approval. The Exercise Board determined that LILCO's training program is fundamentally flawed, and that LILCO's ability to communicate during a emergency, to .

communicate protective action recommendations to the public, and to mobilize personnel in the field, is fundamentally flawed.

In the face of the Exercise Decision, this Board cannot possibly grant LILCO's Motions. Indeed, even the suggestion is preposterous. To do so would require "finding" that a "best efforts" Government response, in which the Governments relied upon the fundamentally flawed LILCO Plan and worked with an untrained LERO organization with fundamentally flawed capabil- t ities, nevertheless will lead to an adequate response, in compliance with the regulations, which permits a finding of reasonable assurance that adequate protective measures can and I will be taken. This Board obviously cannot so find.

III. The New Rule Does Not Provide a Basis for Granting LILCO's Motions A. Introduction It is clear that the LILCO Motions are wholly dependent upo'n LILCO's interpretation of the new rule and of its applicability in this proceeding. Thus, LILCO argues that what it refers to as

J "the best efforts principle," which it asserts is contained in the new rule, "demonstrates, in a manner satisfactory to meet the standards of 10 CFR S 2.749, precisely how the nine functions addressed by (Contentions 1-2 and 4-10] would get done under the authority of the State and County." LILCO Memorandum at 8.

Indeed, essentially the only difference between LILCO's unsuccessful March 1987 Motion and its latest Motions, is LILCO's asserted belief that the new rule, standing alone, entitles LILCO to a summary ruling, without evidence or hearing. Thus, LILCO asserts that the new rule establishes that:

(1) LILCO has satisfied all the requirements of 10 CFR S 50.47(c)(1);

(2) There are no material issues of fact in dispute concerning the nature, adequacy, or regulatory compliance of a "best efforts" Government response to a Shoreham emergency (despite the rulings to the contrary in CLI 13 and the September 17 Order);

(3) The combination of the LILCO Plan and LILCO's version of a "best efforts" Government response permits a finding that despite LILCO's acknowledged lack of legal authority to perform the functions identified in Contentions 1-10, they would nonetheless be performed adequately and in compliance with regulatory requirements; and (4) The combination of the LILCO Plan and LILCO's version of a "best efforts" Government response permits a finding of reasonable assurance that adequate protective actions can and will be taken, as required by Section 50.47(c)(1)(iii).

We demonstrate in this Overview Memorandum and in the individual Answers to LILCO's Motions that there are many, many reasons that none of these rulings can be made. We demonstrate in thisSection III that LILCO's interpretation of the new rule is wrong, and its reliance upon 1t misplaced, and that these deficiencies in.LILCO's Motions alone require that the Motions be denied.

At the outset, however, it is important that the Board understand the true premises of LILCO's summary disposition Motions and the nature of the Board determinations which LILCO seeks. LILCO's-Motions are premised upon a LILCO-created concept of what form a "best efforts" response by Suffolk County and the State of New York to a Shoreham emergency would take. While LILCO gives its concept the lofty title of the "best efforts principle," and implies that it is contained in the Commission's new rule, in fact it must be seen for what it is: a circular and conclusory shell game designed to avoid both the fact finding and the regulatory compliance findings which actually are required by the new rule, as well as by Commission and Licensing Board decisions which are the law of this case.

The LILCO defined "best efforts principle" includes many elements. First, it assumes that the optional presumption in the

, new rule that "state and local officials would generally follow p the utility plan," is applicable in this proceeding -- indeed, that it is att gg mandatory regardless of what the evidentiary i- record shows -- and that it means that the ad hqq response of

i Suffolk County and the State of New York to a Shoreham emergency would consist of those Governments deciding to implement the LILCO Plan, or authorizing LILCO personnel to do so. Egg LILCO Memorandum at 10. We discuss this in Section III.B below.

Second, it assumes that this Board could and would ignore the sworn statements of the Governor of New York and the Suffolk County Executive, describing what their "best efforts" response would be and noting that those Governments would not follow the LILCO Plan and would not authorize LILCO to implement that Plan.

LILCO Memorandum at 10 (the "follow the utility plan" presumption may not be rebutted by statements that officials would not do so). We discuss this in Section III.B and III.D below. Related to this is LILCO's third assumption, that even though Suffolk County and the State of New York have made rational and Court-approved police power decisions not to adopt or implement a State or County plan to respond to a Shoreham emergency, nonetheless "the only appropriate way to rebut the ' follow the utility plan' assumpticn is the one expressly mentioned in the rule" -- i .e. ,

the proffer of a State or County plan to respond to Shoreham emergency. LILCO Memorandum at 10. We discuss this in Section III.C below.

Fourth, LILCO assumes that the Governments' ad h2c response would be "guided" or "defined" by the litigation of the LILCO Plan in this proceeding, which appears to be a variation on the

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oft-repeated LILCO argument that the LILCO Plan has been "approved," has been found adequate, and har been found to comply with regulatory requirements (despite repeated Licensing Board rulings and reminders to the contrary). Thus, LILCO asserts:

There is no better guide to what are "best efforts" for Shoreham than the eight months of hearings already held on (LILCO's] Shoreham emergency plan.

LILCO Memorandum at 8, and -

the best guide to what constitutes the "best efforts" for Shoreham is still the record in this proceeding.

Id. at 9. LILCO then derives from this collection of assumptions the following conclusion, which sums up the "best efforts principle" it created:

The plain truth is that the authorities would do either what the LILCO plan calls for or something better. If they would do what the plan calls for, then the response has already been litigated. If they would do something better, then a fortiori it would meet NRC standards.

Id. at 11-12. We discuss this set of assumptions in this Section l III and in Section VI as well.

It is clear that LILCO's so-called "best efforts principle"

( seeks to avoid, by glib and transparently circular rhetoric, any inquiry or fact finding concerning the nature and adecuacy of a "best efforts" Government response, and whether such a response

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. measures can and will be taken.$/ It is also derived from a fundamental distortion of the new rule. Thus, the essence of LILCO's Motions is that, notwithstanding the repeated assertions in the NRC's rulemaking that the amended rule does not guarantee the licensing of Shoreham and that it merely creates the frame-work for case-by-case adjudication, the new rule has, in fact, a most far-reaching effect. According to LILCO, it overrules CLI-86-13; it overrules the September 17 Order; it overrules the October 29 Order 9/; it obviates any right to a hearing on LILCO's realism defense to Contentions 1-2 and 4-10; and it presumes conclusively not only what the Governments would do in a Shoreham emergency, but also how well they would or could do it. LILCO's assertions, unsupported by any legal analysis, are unsupported by

$/ LILCO also confuses two separate concepts or assumptions in its facile "definition" of the so-called "best efforts principle." One concept is reflected in the assumption that in an actual emergency, governments who had adopted no emergency response plan would nonetheless respond on an ad hqq basis using their "best efforts." In this proceeding, the Governments have not disputed that if the Shoreham plant were licensed to operate (which, in the Governments' view would be unlawful, given the NRC's regulations) and an accident were to occur, they would, on an ad han basis, attempt to respond to the best of their abilities according to their judgments and decisions at the time.

A second, but different, concept is set forth in the new rule's optional presumption that a "best efforts" governmental response would be one that would "follow the utility plan." In this case, that "follow the utility plan" presumption has been rebutted by the sworn statements of the actual Government officials whose response is at issue. Egg discussion below.

9/ Memorandum and Order (Ruling on Applicant's Motion of October 5, 1987 for Reconsideration and Other Relief), Lona Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-87-29, NRC (Oct. 29, 1987) (hereafter, "October 29 Order").

. 1 the new rule, contrary to the law of the case in this proceeding, and seek to violate the Governments' due process rights to a hearing.

Indeed, LILCO's assertions are repudiated by the Commis-sion's own words during the rulemaking and those contained.in, and accompanying, the final rule. The Commission guaranteed case-by-case adiudication based on case-specific facts and evidence of record; it suggested that Licensing Boards may adopt a presumption about the nature of a "best efforts" response, but one which is rebuttable and to be addressed in light of facts and evidence, not by summary decisions based on superficial and self-serving conclusions; and it specifically denied that the rule guarantees any license, including one for Shoreham. Eeg, e.o., 52 Fed. Reg. 42,081 (1987) (The rule "will not assure a license to any particular plant . . . . Whether a utility qualifies for a license will "depend on the record developed in a specific adjudication . . . .").

In its Motions, LILCO ignores the plain words of the rule and the Commission's comments on it. In essence, LILCO engages in revisionism in "interpreting" the new rule, apparently be-cause, as promulgated by the Commission, the new rule does not suit LILCO's interest. LILCO also ignores the facts and evidence in the record of this adjudication, as well as the Commission's and this Board's own prior binding rulings in this case. In sum,

LILCO urges this Board to commit gross legal error by misreading and misapplying the new rule, ignoring the evidentiary record and the law of the case in this adjudication, and denying the Govern-ments_their due process rights.

The Governments will demonstrate in this proceeding that Shoreham cannot be lawfully licensed. They will do it under the new rule and by exercising the procedural rights guaranteed to them by the U.S. Constitution, the Atomic Energy Act, and the Administrative Procedure Act. It is those legal standards, the plain words of the new rule, and the record in this case that must guide this Board in framing the parameters of this pro-ceeding. Those legal standards require, as a threshold matter, that LILCO's summary disposition Motions be denied.

The errors in the LILCO Motions and Memorandum can best be addressed by focusing on specific effects which LILCO attempts to attribute to the new rule in arguing that it entitles LILCO to summary disposition on its defense to Contentions 1-2 and 4-10.

LILCO asserts that: (1) the optional presumption in the new rule "must" be applied in this case; (2) this Board's rulings, in its September 17 and October 29 Orders, concerning factual issues to be decided and the sworn statements of the Governor of New York and the Suffolk County Executive, must be changed; (3) the new rule's rebuttable presumption can only be rebutted by a timely government proffer of an adequate and feasible state or local L

4 radiological emergency plan that would actually be relied upon by the Governments; and (4) in this case the Governments cannot rebut the rebuttable presumption at all. We address these argu-ments below.

B. The Presumption in the New Rule Is Not Mandatory and It cannot Be Adopted in this Case

1. LILCO Ignores the Language in the New Rule Itself LILCO asserts that the new-rule's provision that "it may be cresumed that in the event of an actual radiological emergency state and local officials would generally follow the utility plan," requires this Board to adopt such a presumption in this case. 52 Fed. Reg. 42,086, 10 CFR S 50.47(c)(1)(iii) (emphasis added); agg LILCO Memorandum at 10-11. This assertion is wrong; indeed, the Commission's language clearly crecludes the interpre-tation urged by LILCO.

With respect to the presumption, the Commission did not say that in particular case-by-case adjudications "it will" be pre-sumed, or "it shall" be presumed; rather, the Commission stated that "it may be presumed." Moreover, the Commission's use of permissive rather than mandatory language was clearly deliberate.

When the Commission wished to set forth mandatory requirements in the new rule, it did so; when it intended to set forth optional "guidance," to be considered in case-by-case adjudications, it did just that.

Thus, in the three sentences immediately preceding the presumption. provision, the Commission used mandatory language.

Specifically, the rule provides that:

A utility plan will be evaluated against the-same standards applicable to a state or local plan . . ..

52 Fed. Reg. 42,086, 10 CFR S 50.47(c)(iii) (emphasis added).

The next sentence similarly sets forth a mandatory requirement:

In making its determination . . . the NRC will recognize the reality . . . that in an actual emergency, state and local government offi-cials will exercise their best efforts to pro-tect the health and safety of the public.

Id. (emphasis added). And, in the next sentence, the Commission stated yet another mandatory provision:

The NRC will determine the adequacy of that expected response, . . . on a case-by-case basis . . . .

Id. (emphasis added). Then, in stark contrast, when providing the "guidance" to be used "on a case-by-case" basis, the Commis-sion stated that "it may be presumed" that governments would generally follow the utility plan. Id. (emphasis added).

LILCO's argument that the new rule requires this Board to adopt the presumption in this proceeding, ignores the plain meaning of the words chosen by the Commission. It is clear from the rule itself that the presumption is one which may be adopted, i

or not adopted, by a Licensing Board deoendina uoon the facts and evidence cresented in each case-by-case adiudication contemolated by the rule.10/ The LILCO arguments also ignore the well-estab-lished rule that a tribunal is to give effect to the plain meaning of words such as "will," "shall," and "may." Accord-ingly, this' Board must reject the proposition, which is one fundamental premise of LILCO's Motions, that the Board is required by the new rule to adopt the presumption mentioned only as an option by the Commission.

2. Based on the Facts and Evidence Presented in This Case, the Non-Mandatory Presumption Cannot Be Adopted with Respect to the State of New York and Suffolk County The discussion above demonstrates that the new rule pre-cludes this Board from adopting the interpretation urged by LILCO (that the rule recuires the Board to adopt the presumption in this case). Further, however, this Board's own findings, and the law of the case, as set forth in the Board's September 17 and October 29 Orders, dictate that the presumption cannot be applied here.

10/ This interpretation is consistent with, and confirmed by, the Commission's statements that the rule "leaves it to the Licensing Board to judge what form the 'best efforts' of state and local officials would take . . ., " and that "the rule does not presuppose, nor does it dictate, what the outcome of that case-by-case evaluation will be." 52 Fed. Reg. 42085. Egg also the statement of NRC Chairman Zech, cuoted in Newsday, October 30, 1987, page 35 (with respect to the actions of state and local governments, the new rule "doesn't assume they'll follow the plan if they say they won't").

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y -

(1) The Board-Has'Already. Ruled that.the Presumption Is Contrary to the Evidence in This Case This Board has already addressed-the. question'whether, based on the-facts'and. evidence before it, the State of.New York and Suffolk County would implement the LILCO Plan. It addressed that question in the context of the Commission's direction, in CLI-86-13, that the Board should assume a "best effort" governmental ,

' response to a Shoreham emergency, using the LILCO P' n "as the 1

best source for emergency planning information and tions." .R Based on uncontroverted sworn statements of the actual respon-sible State and County officials, however, this Board found that it could ant assume, as LILCO had argued, that in a Shoreham emergency, the Governments of New York and Suffolk County would act in partnership with LILCO or would follow or implement'the LILCO Plan.11/ This Board ruled correctly that the Governments' 4

sworn statements could not be ignored:

No one has more knowledge than the State and County on how they would respond to an emer-gency at Shoreham. By affidavit they dispute each claim LILCO makes as to how they would react.

t 11/ Egg September 17 Order at 25-27 ("the scenario (LILCO) presents as to what form Intervenors' response would be . . . is  ;

unsupported by CLI-86-13, or otherwise in this record"; LILCO's argument "is based on the supposition of what the Applicant expects the State and County would do . . . ."; "the response  :

theorized is without factual basis"). Copies of the sworn  !

, statements of Governor Cuomo and former County Executive LoGrande I which were referred to in the September 17 Order are attachments to the Cuomo and Halpin Affidavits, respectively.  !

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September 17 Order at 26. The Board confirmed its ruling in rejecting LILCO's reconsideration motion:

tus .[W]e took into account the evidentiary record

, /in which the Governments stated that they would not* implement the LILCO plan, would not respond to I Shoreham emergency in concert or in partnership with LILCO, vould not rely upon LILCO recommendations or advice,'and would not authot'ize LILCO to perform the functions in Contentions 1-10. Considering the best effort 1""' assumptions and the foregoing led the Board to

'the conclusion that it remained an open ougg-tion as to how the Governnents wgyld respond in an emercency . -, . .

October 29 Order at 14 (emphasis added),

s< ~

I'n #11ght of itslpr'evious rulings based on the evidentiary record before it in this case, this Board cannot now adopt the kind of presumption advochted by LILCO: it would directly con-

.l tradict the evidence in tRb record of this case and the Board's prior rulings made'on th& basis of that evidentiary record.

Further, as demonstrated.beloW, there is nothing in the rule itself that could possibly -P stify a Board ruling now that would ignore the evidence that the Board found compelling on September 17 and October 29.

(ii) There Is'No Basis to Argue that the Board!__s Prior Rulinas Should be Chanced There is no basis for LILCO's suggestion (LILCO Memorandum at 8-11) that the new rule somehow nullifies this Board's prior rulings in the September 17 and October 29 Orders, or that it l

+

_----e

q .-

'.; 'j9.-

requires them to be changed'.-- First, the new rule did not vacate CLI-86-13; indeed, in effect, it purports to codify that deci-

^

sion. Egg, e.g., 52 Fed. Reg. 42082 (rule "adheres to" CLI 13); 42084 (rule "incorporates," and in some respects "amplifies" and "clar'ifiss" CLI-86-13j.- In CLI-86-13 the Commission recognized the need for fact-finding in ruling on LILCO's realism affirmative defense to Contentions 1-10, in order to make the reasonable assurance find 3ngs required by the regulations. Thus, after announcing its assumption of "some 'best effort' State and County response" which would "utilize" the,LILCO Plan as a .

"sourceforeNrgencyplanninginformationandoptions,"the Commission expressly stated that it was "unwilling to tattime, as

/ > ,

y LILC0 urges, that this kind of best-effort'covernment response would necessarily be adequate." CLI-86-13, 24 NRC at 31

'i ,

(emphasis in ori,ginal). Then the Commission identified some 4 specific questions of fact, about which "more information.is

^

needed," including: _

d questions about the familiarity of State and County officials with the LILCO plan, about how e ^

much delay can be expected in alerting the pub- .

+

lic and in making decisions and recommendations '

on protective actions, or in making decisions '.

and recommendations on recovery and reentry, ' '

and in achieving"effective access controls.

- Ide- Jhe Commission directed that in the remand proceeding. the Board "should take additional evidence where r.ecessary." Id. at

32. The-new rule itself provides no basis for asserting that CLI-86-13, or the September 17 and October 29 decicions made s ,

w

pursuant to its case-specific directions, are no longer valid or binding.

Second, LILCO offers no basis for.its argument that this Board's September 17 and October ~29 Orders, made pursuant to CLI-86-13 and based upon the evidentiary record in'this' case, must be changed. They are the binding law of the case in this proceeding. There is no hint in the new rule that the Commission intended.the rule to alter evidentiary rulings that already had been made in case-by-case adjudications; obviously, no rule could have such an effect. Indeed, as noted above, the Commission expressly stated that the rule did not assure a license for Shoreham and that a record based upon a Shoreham-specific adjudi- ,

cation would need to be developed. Ett 52 Fed. Reg. 42081.

Thus, the Commission did nothing to alter this Board's conclusion that it remains "an open question as to how the Governments would respond in an emergency." October 29 Order at 14.

Third, the Commission's discussion reiterates again and again that decisions under the new rule are to be made in case-l by-case adjudications, based on the facts and evidentiary records I developed in each individual adjudication.12/ The rulings made 12/ Ett, e.o., 52 Fed. Reg. 42081 ("whether a utility could suc-

ceed in making'(the) showing (required by the new rule) would de-l l

oend on the record develooed in a soecific adiudication . . . ");

42082 (under the new rule judgments and evaluations, and uncer-L tainties therein, are to be "addressed in the case-by-case adiudications on individual. fact-soecific situations"); 42082 i

("under the carticular facts of an individual case it may be (footnote continued)

by this Board in its September 17.and October 29 Orders, and the bases of those rulings, are fully consistent with the new rule.

.They were-based upon the facts and the evidentiary record in this adiudication, and were made pursuant to the Commission's decision (CLI-86-13) purportedly incorporated into the new rule. LILCO's suggestion that the Commission intended an abrupt reversal of this Board's rulings is without basis, and in direct conflict with the Commission's own language in the rule.

Fourth, the Commission's comment that Licensing Boards "should not hesitate to reject any claim that state and local officials will refuse to act to safeguard the health and safety of the public in the event of an actual emergency," has no rele-vance to this case. Neither Governor Cuomo, Suffolk County Executive Halpin, nor any other government official from the State of New York or Suffolk County has stated that they would "refuse to act to safeguard the health and safety of the public" in the event that Shoreham were licensed and there were an acci-dent at the plant. Indeed, this Board has stated "the State and County Governments do not deny that they would respond to an emergency with their best efforts . . . . September 17 Order at

45. Thus, the Commission's guidance on what a Licensing Board should or should not do if presented with a claim that officials (footnote continued from previous page) impossible for the NRC to conclude that a utility plan is ade-quate, as defined in this rule"); 42084 (under new rule, NRC will "take into account the probable response of state and local authorities, to be determined on a case-by-case basis") (all emphasis added).

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would "refuse to act'to' safeguard the public," is inapposite here.

3. Even Assuming, &fguende, that the Presumption' Could be Adopted in This Proceeding,-It Has Alreadv Been Rebutted The discussion above demonstrates that in light of the evidence in this case and the Board's rulings concerning its~

impact, there is no basis for adopting any sort of presumption that the Governments would follow LILCO's Plan. However, even assuming for the sake of argument that the new rule's rebuttable presumption could in theory be applied in this proceeding, the<

presumption would have no practical consequence: any such pre-sumption has already-been rebutted in this adjudication by the sworn statements of Governor Cuomo and the Suffolk County Execu-tive, and the other evidence in the record. Indeed, the new affidavits of Governor Cuomo and County Executive Halpin sub-mitted herewith provide even further reason why LILCO's asser-tions must be rejected. Thus, under CLI-86-13 and the new rule, this Board still must determine, based on the evidence to be pre-sented, the nature and adequacy under the regulations of a "best efforts" State and County response to a Shoreham emergency.

A rebuttable "presumption" that such a best efforts govern-ment response would be to implement the LILCO Plan has long since been overcome in this case. Specifically, as noted, this Board has already held as follows:

_ - _ .. h

e .

i

• Intervenors have established by sufficiently convincing direct evidence, i.e., the affida-vits of State and County officials, that the material facts Applicant claimed to be without dispute (i.e.,'that the Governments would act in partnership with LILCO, would follow LILCO's advice and recommendations, and would implement the LILCO Plan or authorize LILCO to implement it) are in fact disputed and there exists a genuine issue to be heard.

September 17 Order at 27. Egg also the October 29 Order, in which the Board reiterated its holding:

The Board considered [Cuomo v. LILCO) along with how LILCO said it expected Intervenors will operate in an emergency. Further, we took into account the evidentiary record in which.the Governments stated that they would not implement the LILCO plan, would not re-spond to a shoreham emergency in concert or in partnership with LILCO, would not rely upon LILCO recommendations or advice, and would not authorize LILCO to perform the functions la Contentions 1-10. Considering the best ef -

forts assumption and the foregoing led the Board to the conclusion that it remained an open question as to how the Governments would respond in an emergency and whether their response will be adequate in fulfilling regu-latory requirements.

October 29 Order at 13-14. In light of these prior binding l rulings based on the evidence in this case, buttressed further by the affidavits submitted herewith, even if it were assumed that the new rule presumption could, theoretically, be applied in this case, it_ bas already been rebutted. Nothing in the rule alters these factual findings that are the law of this case.

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l C. The Presumption in the New Rule Can Be Rebutted by Showings Different From the One Provided as an Examole in that-Rule '

LILCO argues that under the new rule the presumption, if adopted, can only be rebutted by a showing that the Governments' "best efforts" response would be based on another acceptable emergency plan which would in fact be implemented in an emer-gency. Egg LILCO Memorandum at 10. This is another instance of LILCO urging this Board to ignore the plain meaning of-the rule.

The argument has no basis and must be rejected.

First, this argument again ignores the Commission's own words in the rule itself. The Commission made very clear that a proffer of an adequate state or local radiological emergency plan is merely one way that the presumption can be rebutted (assuming it were appropriate for a Board to have applied the presumption in the first place). The rule provides:

(T]his presumption may be rebutted by, int examole, a good faith and timely proffer of an adequate and feasible state and/or local radiological emergency plan that would in fact be relied upon in a radiological emergency.

52 Fed. Reg. 42086 (emphasis added). There is no indication in the rule that the one mentioned "example," explicitly identified as such, was intended to be the oniv available. method of rebut-l l ting the presumption. LILCO cites no authority for the assertion that the example provided in the Commission's guidance was in-tended to be the exclusive method of rebutting the presumption.

i

I 1 .

f Indeed, LILCO's argument would render the words chosen by the Commission meaningless, a construction of the rule which could not be adopted.by this Board.

Second, any such limitation on how the presumption could be rebutted would also be contrary to the clear intent of the new rule as a whole -- that is, that decisions under the rule are to be based on the fact-specific evidence presented in individual case-by-case adjudications. There is no basis to infer that the Commission believed it could (or did) identify in its general "guidance" one very specific type of evidence which would be universally applicable in all adjudications. It is equally baseless to infer that the Commission intended to limit the opportunities for rebutting a "rebuttable presumption" to only those situations where that very specific type of evidence was perfectly duplicated.ll/

D. Even Assuming, Arauendo, that the Governments Needed to Rebut the Presumption a Second Time, They Have Done So For the reasons just discussed, as well as those discussed by the Board in its September 17 and October 29 Orders, it is clear that any presumption that the Governments of Suffolk County 11/ Indeed, the notion that a rebuttable presumption can be rebutted only by the presentation of one very specific and limited type of evidence would in effect render the presumption irrebuttable in almost every case. Thus, the interpretation urged by LILCO is inconsistent with the rule for the additional reason that it in essence makes the Commission's "rebuttable" presumption an irrebuttable one.

I

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or the State of New York would engage in the kind of "best efforts" response postulated by LILCO has long since been rebutted. Even if that were not the case, the Governments have

-demonstrated in new evidence submitted herewith that the Govern-ments would not and could not implement LILCO's Plan, "follow" that Plan, or rely upon LILCO's guidance, advice, or resources in responding to a Shoreham emergency. A few salient facts contained in the affidavits submitted herewith, make this rebuttal clear:

1. The Halpin Affidavit establishes that the Suffolk County Government would never direct or permit its personnel to rely upon the LILCO Plan or LERO personnel, or to work in "partnership" with LILCO personnel, in the event of a Shoreham radiological emergency. That Affidavit also establishes that there has been no training of Suffolk County personnel relating to the LILCO Plan, that Suffolk County personnel have no famili-arity with LILCO's Plan, and that no copies of the LILCO Plan are in the possession of the Suffolk County government except for three copies retained for litigation purposes. There is, accord-ingly, no prospect that Suffolk County personnel ever would become familiar with LILCO's Plan. Egg Halpin Affidavit.

2. The Roberts 1988 Affidavit makes clear that personnel from the Suffolk County Police Department could not respond adequately or promptly in the event of a radiological emergency

l' at Shoreham. They have no familiarity with LILCO's Plan, and to the-extent that a few members of the Police Department have

-reviewed

• portions of the Plan in the litigation context, they have concluded, consistent with the' findings in-the Exercise Decision, that the Plan is seriously deficient and should not be relied upon. Suffolk County Police Officials would not rely upon that Plan or work in cooperation with LILCO personnel. Egg Roberts 1988 Affidavit.

3. The Affidavit of Governor Cuomo makes clear that New York State personnel would never rely upon LILCO's Plan, LILCO .

advice or guidance, or utilize LILCO resources in responding to a radiological emergency at Shoreham. Governor Cuomo also makes clear that New York State personnel have no familiarity with LILCO's Plan. Egg Cuomo Affidavit.11/

4. The REPG Affidavit documents that in the event of a radiological emergency at Shoreham, New York State personnel have no preparedness or training, and no capability, to respond effec-tively to such an emergency, either pursuant to the New York State Plan or pursuant to the LILCO Plan. Further, absent site-specific training and drills, there is no basis to believe that any kind of ad hng response would be successful or adequate.

REPG Affidavit, 11 5, 8, 10; Papile Affidavit 1 3.

11/ It further is clear that the only copies of LILCO's Plans held by the State are being retained solely for purposes of litigation. Zahnleuter Affidavit, 1 8.

O No amount of LILCO assertions, which are wholly lacking in factual basis, can alter the fact that the officials of these two sovereign governmental entities have made it clear, under oath, that LILCO's assertions supposedly "defining" a "best efforts" response, are false.ll/ At a minimum, there clearly are facts in dispute regarding the nature of sn assumed "best efforts" Govern-ment response.

Nevertheless, after having repeatedly made baseless assertions about what it believes the Governments "would" do in an emergency, LILCO then charges the Governments with a "burden" of asserting something more than "generalized denials" that the Governments would not use LILCO's Plan or resources. Egg, e.o.,

LILCO Memorandum at 11. We discuss this further in Section IV below. Even a cursory review of the affidavits submitted by the Governments in response to LILCO's March 1987 Motion, however, reveals that they are much more than "generalized denials." They ll/ LILCO's motions are replete with statement after statement that the Governments "would" do particular things in an emergency. LILCO's statements are almost always in conjunction with the assertion that its definition of the so-called "best efforts principle" so provides. A compilation of such LILCO assertions are Attachments 1 and 2 to the Halpin Affidavit. But LILCO's fabricated "best efforts principle" cannot substitute for fact. And the fact -- as documented in the Cuomo and Halpin Affidavits -- is that LILCO's Plan will never be used for any purpose by the Governments.

For example, LILCO suggests that because County personnel have responded to security incidents at Shoreham, it can be expected that County personnel would respond with LILCO to a radiological emergency. County Executive Halpin explains that the circumstances are different and thus why the County would not respond with LILCO to a radiological emergency. Halpin Affidavit 16, n.1.

4 were detailed and clearly were relied upon by the Board. Egg September 17 Order at 25-26. The affidavits submitted with this Answer are even more detailed.15/

IV. LILCO Bears the Burden of Going Forward and the Burden of Proof in this CLI-86-13 Remand Proceeding, and Bears a Heavy Burden in Movina for Summary Disposition As discussed above, in its Motions LILCO presents no facts to support its theories as to how its believes the Governments allegedly would respond to a Shoreham emergency. Rather, LILCO simply asserts that the Governments "would" use LILCO's Plan and "would" do many other things pursuant to that Plan or pursuant to LILCO's wishes, and then, in essence, argues that the burden is on the Governments to refute LILCO's unfounded assertions.

Moreover, LILCO asserts that LILCO's summary disposition Motions should be granted unless the Governments carry a burden to show more than "generalized denials" of LILCO's specific, but unsupported by fact or evidence, allegations. Egg LILCO 15/ The Governments have provided great detail on precisely what they would do and why in a "best efforts" response to a Shoreham emergency. They woul.d aqt use LILCO's Plan or resources. Cuomo Affidavit; Halpin Arfidavit; Roberts 1988 Affidavit V 6, 8, 10, 17-21. In short, the Governments, in the rational exercise of their police powers, and as upheld in the Courts, have decided that they cannot and would not trust LILCO; they have found LILCO's plan to be unworkable; and they have decided they would rather proceed on their own with no plan. Cuomo Affidavit; l Halpin Affidavit. LILCO went to Court in an attempt to change i the situation, but LILCO lost. Sgg, Etq1, Citizens for an l Orderly Enerov Policy _Inc. v. Suffolk County, 604 F. Supp. 1084 l (E.D.N.Y. 1985), aff'd, 813 F.2d 570 (2d Cir. 1987). LILCO i

cannot change that result by asserting that the Governments would

do things that they say they will not do.

I Memorandum at 9.12/ This LILCO position turns the law relating to burdens of proof _and summary disposition on its head. LILCO's argument has no basis and must be rejected.

A. The Governments Have More than Satisfied Their Burden of Going Forward on Contentions 1-10 by Prevailing on the Leoal Authority Issues Raired by Them In light of the facts and history of this case, any sugges-tion that the Governments have not met their burden of going forward with respect to Contentions 1-10 is ridiculous.

In February 1985, the Governments obtained a decision from the New York State Supreme Court on the legal authority issues presented in Contentions 1-10. Egg Cuomo v. LILCo, Consol. Index No. 84-4615 (N.Y. Sup. Ct. Feb. 20, 1985), aff'd, 511 N.Y.S.2d 867 (App. Div. 1987), acoeal cendino. That decision held that LILCO has no authority to implement the various portions of its Plan enumerated in Contentions 1-10, precisely as alleged in those contentions. The Governments then submitted that evidence to the Licensing Board in support of Contentions 1-10 and in opposition to LILCO's Renewed Summary Disposition Motion, dated February 27, 1985.

i I

11/ As discussed in Section III above, the Governments have agt relied on "generalized denials." However, if they had, that would still provide no basis for LILCO's Motions, since as dis-cussed in the text above, the burden is on LILCO to demonstrate compl'iance with the regulations.

l

Before the Licensing Board, LILCO's only response to the dispositive legal authority evidence presented by the Governments on Contentions 1-10 was to assert its preeuption, "realism," and "immateriality" defenses. Both the Licensing Board and the Appeal Board rejected those defenses and ruled that the Govern-ments had prevailed on Contentions 1-10, requiring that LILCO's request for an operating license be denied. PID, 21 NRC 644, 896-919, aff'd, ALAB-818, 22 NRC 651 (1985). The Commission's decision in CLI-86-13, and this remand proceeding, followed.

Clearly, the Governments' submission of dispositive evidence on the legal authority issues raised in Contentions 1-10 more than satisfied the Governments' burden of going forward on those contentions.

B. The CLI-86-13 Remand Proceeding Is Focused on LILCO's "Realism" Affirmative Defense to Contentions 1-10 In CLI-86-13, the Commission could not, and did not, disturb the prior rulings as to LILCO's lack of legal authority to imple-ment its Plan as alleged in Contentions 1-10. Thus, the Commis-sion stated that it "assume (d) that LILCO is prohibited from performing the State or County roles" in the response categories identified in Contentione 1-10. CLI-86-13, 24 NRC 22, 30-31 (1986). The Commission proceeded, however, to discuss LILCO's asserted "realism" and "immateriality" defenses to contentions 1-10, and it "remand (ed) LILCO's realism arcument to the Licensina Board for further oroceedinos consistent with (its) l l

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Decision." Id. at 32 (emphasis added). Egg also id. at 24 (Commission "remand (ed) for further evidentiary hearings 2n issues raised by LILCO's so-called ' realism' and ' materiality' arcuments") (emphasis added).

It is thus beyond dispute that the intended subject of the CLI-86-13 remand is LILCO's asserted affirmative defense to Contentions 1-10 -- its "realism" argument. Indeed, this Board has so stated:

No or.e assumes at this stage of the proceeding that LILCO is not prohibited from performing the State and county roles as enumerated in the contentions. Egg, CLI-86-13, supra, 24 NRC at

30. The matter for decision is whether the realism araument overcomes the LILCO disabili-

.t.Y_t.

September 17 Order at 27-28, n.15 (emphasis added).18/

C. The Burden of Going Forward, and the Burden of Proof, on its Realism Affirmative Defense Rest on LILCO There is no basis in law or logic to suggest that anyone other than LILCO has the burden of going forward, as well as the burden of proof, in this remand proceeding. LILCO is the propen-ent of the realism affirmative defense; and, LILCO seeks a li-cense based upon its belief that it can make the demonstrations required of an applicant under 10 CFR S 50.47(c)(1). Under 18,/ Egg also September 17 Order at 10 (LILCO has "defended acainst the legal authority issues on the basis of its realism argument") and 11 (in CLI-86-13, the Commission "remanded for further evidentiary hearings issues raised by LILCO's realism araument") (emphasis added).

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.well-established principles and the regulations, the burdens in this proceeding on an affirmative defense asserted by LILCO rest

.upon LILCO.

First, it'cannot be disputed that'LILCO's realism argument is an affirmative defense in contentions 1-10. . In fact, the

' Commission has ruled that the contentions are correct in their allegations. LILCO asserts, however, that its realism argument overcomes its conceded lack of legal authority. This LILCO

. position clearly fits the traditional definition of an affirma-tive defense.19/

Second, it is well-established that the burden of going forward, as well as the burden of proof, rests upon the party who asserts an affirmative defense. Egg, tigt, Jones v. Taber, 648 F.2d 1201, 1203 (9th Cir. 1981) ("of course, the burden is always on the party advancing an affirmative defense to establish its validity"); Martin v. Weaver, 666 F.2d 1013, 1019 (6th Cir.),

ggIt. denied, 456 U.S. 962 (1981) (burden of providing an affir-mative defense is on the party asserting it). Accord, In re Kerr-McGee Chemical Coro. (Kress Creek Decontamination), 23 NRC 799, 804, n.17 (1986) (proponent of affirmative defense bears burden of going forward and presenting evidence).

19/ An affirmative defense is one which admits the truth of the complaint's allegations, but states new matters that, it is argued, exculpate the defendant, or allow him to avoid liability.

111, 1132, Fed.R.Civ.P., Rule 8(c); U.S. Home Corn. v. Georae W.

Kennedy Const. Co., 610 F. Supp. 759, 761 (D.C. Ill. 1983).

O Finally, in this remand proceeding LILCO bears the burden of proof under 10 CFR S 2.732 ("Unless otherwise ordered.by the presiding officer, the applicant or the proponent of an order has the burden'of proof"). Not only is LILCO the proponent of the defense which forms the basis for this remand proceeding, it is the license applicant. LILCO has stated no basis on which this Board could order that the burden of going forward, or the burden of proof, on LILCO's realism defense to Contentions 1-10 should or could be shifted to the Governments.20/

D. The New Rule Does Not Support or Justify Any Change in Burden Allocation in This Case The new rule reiterates that when proceeding under Section 50.47(c)(1), the burden of going forward, as well as the burden of proof, rests solely on the applicant. The new rule thus pro-vides (T1he acolicant will have an occortunity to demonstrate to the satisfaction of the Commis-sion that deficiencies in the plans are not significant . . . .

Where an applicant . . . asserts that its inability to demonstrate compliance with the requirements of paragraph (b) . . . results wholly or substantially from the decision of state and/or local governments not to partici-pate further in emergency planning, an op-20/ There is no basis for shifting any burdens simply because the matter at issue -- here, LILCO's realism defense -- involves the nature or adequacy of the Governments' best efforts response.

Indeed, precisely the opposite is the case. Thus, in Consumers Power Company (Big Rock Point Plant), 16 NRC 1096 (1982), it was held that the applicant had the burden of proving the adequacy of the radiological training program for local government and school officials, even thouch such trainina was to be conducted by state acencies. and was not the resconsibility of the acolicant.

4 7

erating license may be-issued if'the anolicant-demonstrates to the Commiss!on's satisfaction i To make the.[ reasonable assurance) finding, tha anolicant must demonstrate that, as outlined-below, adequate protective measures can and will be taken . .. .

10 CFR S 50.47(c)(1);:52 Fed. Reg. 42086 (emphasis added).

Accordingly, the actual words of the rule further underscore the requirement that it is LILco's burden -- and LILCO's alone -- to demonstrate in this proceeding that it complies with the regula-tions.

Furthermore, even11f it were assumed,'arouendo, that some burden of going forward could properly be imposed upon the Governments in this proceeding -- despite the facts that (1) the CLI-86-13 remand is directed solely to an affirmative defense propounded by LILCO, and (2) the new rule reiterates that the burden of going forward under Section 50.47(c)(1) is on the applicant -- the Governments have already met whatever threshold burden of going forward could be imagined on the question of the nature of the Governments' "best efforts" response. The Govern-ments' submission of sworn statements by the Governor of New York and the Suffolk County Executive, as well as the other affidavits submitted in May 1987 and herewith, clearly is "sufficient to require reasonable minds to inquire further" concerning the nature and adequacy of a "best efforts" response by New York

7 p; - _

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State and suffolk County. - Indeed, this Board has already held precisely that in the-September 17' Order in denying-LILCO's March 1987 Motion. -Thus,-it cannot seriously be argued that the Governments have failed to "go forward" concerning the nathre of the assumed "best. efforts" response. - The burden now rests squarely upon LILCO to go forward,1and to prove that it has satisfied the requirements for licensing set forth in the regula-tions.

E. LILCO Has Not Carried its Burden Under Section 2.749 Finally, LILCO is now seeking extraordinary relief, in asking that the findings of fact and of regulatory compliance required by Contentions 1-10 and the new rule be made without a hearing. LILCO has failed to carry the heavy burden associated with a request for such summary relief.

The law applicable to summary disposition motions was sum-marized by this Board in its September 17 Order (at 19-20). A licensing board is empowered to grant summary disposition on the pleadings only if it finds that "there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law." 10 CFR S 2.749(d). A party seeking summary disposition has the burden of proving the absence of any genuine issue of material fact, Cleveland Electric Illuminatina Co. (Perry Nuclear Power Plant, Units 1 and 2),

ALAB-443, 6 NRC 741, 753 (1977), with the record viewed in the t

light most favorable to the rotion's opponent, Dairyland Power Cooperative (Lacrosse Boiling Water Reactor), LBP-82-58, 16 NRC '

512, 519 (1982). Indeed, the proponent of a summary disposition motion must meet the burden of proof in establishing that there is no genuine issue of material fact, even in the absence of a response. Perry, 6 NRC at 754.

In this case, as noted, LILCO bears the burden of going for-ward and the burden of proof on its realism affirmative defense to contentions 1-10. It also bears the burden of proof as the applicant under Section 50.47(c)(1). When its burden as a ,

sumrary disposition movant is added, it is clear beyond dispute that its Motions, which are wholly lacking in factual or evi-dentiary basis, cannot be granted. Clearly, in view of the Affidavits submitted by the Governments herewith and the eviden-tiary record containing the Affidavits submitted by the Govern-ments in response to LILCO's March 1987 Motion, at the very least, this Board must find that there are facts in dispute and must deny LILCO's Motions.

V. LILCO's Summary Disposition Motions Are Barred by the Doctrine of Res Judicata LILCO's Motions and the LILCO-created "best efforts principle" are all premised on LILCO's assumption that in a Shoreham emergency, State and County officials would take charge l of the emergency response by, among other things, authorizing or giving "permission" to LILCO personnel to manage and implement

e the emergency response. LILCO proceeds to argue, from that premise, that such a "best efforts" governmental response, when combined with LILCO's allegedly "demonstrated" or "litigated" ability to manage and implement'a response according to the "approved" LILCO Plan, leaves no material facts in dispute on LILCO's defense to Contentions 1-10 and thus entitles LILCO to judgment as a matter of law.

There is a fundamental problem with LILCO's arguments it violates New York State law (Cuomo v. LILCO). For that reason, it has been rejected by this Licensing Board on three occasions, 4

and under settled principles of Iga iudicata, LILCO is barred from relitigating claims that LILCO has previously presented and lost.21/ Therefore, this Board must deny LILCO's Motions.22/' i In 1984, when LILCO first moved for nummary disposition of  :

the legal authority contentions, it urged that its "realism" theory would "legalize" a LERO response in an emergency situa- l tion. LILCO argued that Suffolk County and/or the State of New 21/ Egg Alabama Power Ccu (Joseph M. Farly Nuclear Plant Units 1 and 2), ALAB-812, 7 AEC 210 (1974), remanded on other arounda, CLI-74-12, 7 AEC 203 (1974) (principles of Igg 4udicata may be given effect in NRC liceasing proceeding); Houston Lichtina (ad Power Co. (South Texas Project, Units 1 and 3), LBP-79-27, 10 NRC 563 (1979), aff'd, ALAB-575, 11 NRC 14 (1980) (the principle of Igg iudicata will bar relitigation of an already decided claim).

11/ Not only would it be unlawful for the Governments to give LILCO or its personnel permission to act as LILCO proposes, but it is clear that the Governments of Suffolk County and the State of New York in fact would never give LILCO such permission (even if it were legal to do so). Halpin Affidavit 1 17; Cuomo Affidavit 1 16.

J ,

P

[: , .' -

1.

g York, in an actual emergency, would permit or authorize LERO personnel to perform the emergency functions identified in Con-

.tentions 1-10, and that such official permission or approval.

would obviate the legal authority problems. In the April 1985 N PID,;the Licensing Board directly addressed anu flatly rejected this "permission" or'"approval" version of LILCO's "realism"- l argument, holding that the Governmental actions performed by t

LILCO would be unlawful. The Board stated: :l Proceeding directly to the heart of the  !

matter, LILCO assumed that if the State and .i County were to participate in an emergency i response at Shoreham, they would authorizg the utility to nerform the functions it cronoses to carry out in an emeroency as .

enumerated in the subiect contentions. The [

realism argument is wholly predicated on the State and County authorizina LILCO to act as  !

planned. Without such authorization the  :

realism argument vanishes. LILCO relied on i New York State law, more particularly the' i Executive Law, discussed previously, for the  :

deputization. Judge Geller, in his decision  ;

of February 20, 1985, found that there are no  !

means under New York State law by which LILCO [

can be vested with the authority it would j need to implement the emergency response plan  ;

it proposes. He stated, "[t]he Court, no l matter how many times it has read and re-read  !

Article 2B (The Executive Law) could not find .

any authorization for LILCO, expressed or  !

implied, to exercise the State's police powers in emergency situations." The Court ultimately concluded, "(t]he State and County  ;

4 would be breaking their ' fiduciary duty' to j prote;', the welfare of its citizens if they ,

a pen .ed a private corporation to usurp the {

pei'w powers which were entrusted solely to i

'; ths oy the community." cuomo v. LILCO,

• supra, at 18. The Supreme Court interpre-  !

tation of the New York State law, which we  !

have accepted, disposes of the realism argu-  !

ment. The realism argument, predicated upon f i

LILCO being authorized to participate in its  !

l proposed emergency response plan, fails l

' 1

q because Applicant cannot be delegated the authority to perform the functions enumerated in Contentions 1-10.

PID, 21 NRC at 911 (emphasis added). On appeal, this finding was not disturbed by the Appeal Board or the Commission.

Following the Commission's issuance of CLI-86-13, LILCO filed its "Second Renewed Motion" for summary disposition of Contentions 1-10 -- the March 1987 Motion. In its 1987 Motion, LILCO purported to explain what LERO would do in an emergency:

Because there has been much misunderstanding about the realism principle, LILCO wishes to make it understood that realism does aqi mean that the State or County would step in at the time of an accident, 'take over' the plan using State and County employees, and send LERO home. Rather, what realism contemplates is a partnership in which LERO would con-tinue, with official aooroval, to manace the emeroency resoonse; the County and State would provide legal authority plus whatever resources they could provide on short notice.

Obviously the State and County would have the

power to override a LERO decision, and ulti-mate authority would reside with them; but in an extremely fast-breaking (and extremely unlikely) accident, it might be that the government officials could do little more than authorize LERO to carry out the emer-gency plan, at least in the early stages.

March 1987 Motion, at 8-9 (emphasis added).

In this Board's September 17 Order, the Board held unequi-vocally (for the second ,tJra) that LILCO's concept of realism --

wherein LILCO is to manage and carry out the emergency response,

.c purportedly with officialLapproval.or permission -- is illeaal.;

Thus, the Licensing Board stated:

-The' crux of Applicant's motion is that LILCO-Lhas undisputed facts that establish-what

. Intervenors' response would be if there were a radiological emergency ~at Shoreham and that i response.-would overcome the deficiencies in the LILCO plan as established by the Legal-

-Authority Contentions.- These undisputed-facts are said to establish:- that. Inter-venors would act in partnership with the-Applicant;Ethat LERO would continue to act

!, with Government authorization to manace the j emeroency response; that tne Governments 4 would bestow leaal authority and whatever-resources were needed on short notice; and

. that the State and County would retain veto power over LERO decision-naking. (Motion at 9).

This claim that the State and County's re-sponse would take the form of authorizina-LILGO to act for them was creviousiv reiected by this Board in our partial initial decision on the basis of Cuomo v. LILCO, aggra, which holds that applicant cannot be delegated the authority to perform the functions enumerated in Contentions 1-10. Nothing in CLI-86-13 alters the cuomo decision which so far has

, been upheld on appeal. See footnote 7 above.

l' Applicant's claim that the Governments' response will be on a basis of-what has been

]- found contrary to law is meritless.

September 17 Order at 25 (footnote omitted; emphasis added).23/

t t

This Board's rulings are clears the State and County could

[ not lawfully authorize or permit LILCO to act for the Sta'te and 1

County or to perform the functions enumerated in Contentiens 1-

.13/ In its October 29 Order, the Board rejected LILCO's asser-tions that the September 17 Order had improperly applied Cuomo v.

LILGQ. Egg October 29 Order at 13-14. This constituted a third

rejection of LILCO's argument.

l

10; and, any LILCO motion premised upon such illegal actions must >

be denied.

In its December 18, 1987 Motions, LILCO once again attempts to have this Licensing Board disregard the holding of Cuomo v.

LILCO and to disregard this Board's past three unequivocal deci-sions. Enough is enough: the Board must summarily reject LILCO's latest attempt.

LILCO's Motions do not even purport to deal with the Board's PID or September 17 rulings, even though its present Motions assume precisely the same actions by the Governments which were the subject of those rulings. LILCO makes passing reference to Cuomo v. LILCO (111 LILCO Memorandum at 3, 4-5), but does not even bother to mention, much less explain, how its "realism" argument (i.e., not one where all actions are performed by the Governments but, rather, one where LERO, with permission, performs many functions) could possibly be squared with this Board's prior decisions.21/ Rather, in brazen disregard of prior rulings LILCO continues to assert that the Governments could and 21/ It is particularly arrogant of LILCO to assert -- without even a reference to the PID or the September 17 rulings on this issue -- that Cuomo v. LILCO is not relevant to its Motions because it purportedly "addresses only the hypothetical situation of a utility's responding to an accident without any participa-tion of the authorities." LILCO Memorandum at 5. This precise argument has already been reiected by this Board in its September 17 Order (at 25) which, like LILCO's current Motions, dealt with a "best efforts" Government response. LILCO may not like this Board's prior rulings, but it cannot simply pretend that they do not exist.

would give LILCO the authority to perform the functions identi- e fled in Contentions 1-10.

For example, in its Memorandum, LILCO asserts that "(ijn a real emergency, LERO workers would be permitted'to perform speci-fic functions under the direction of . . . governmental authori-ties." LILCO Memorandum at 4. In like fashion, LILCO states that its "Traffic Guides could be given permission to direct traffic by themselves." LILCO 1/2 Motion at 10. Similarly, LILCO contends that "they (the LILCO road crews) would not do  :

their emergency jobs until told to by the EOC which would first have received permission from Suffolk County." LILCO 4/9 Motion at 5. But, according to LILCO, "permission to do their jobs would be obtained and transmitted to the (LERO) road crews very quickly." 14. at 2. And, LILCO repeatedly references its plan to "obtain permission to begin implementing certain elements OR f f

the emergency response." LILCO 5/6 Motion at 13. Ett tito, id. !

at 14 and 18 (LERO would obtain permission to broadcast EBS j messages); 14 (LERO would obtain permission to activate sirens in conjunction with EDS broadcasts); 15 (LERO would obtain j permission to advise the public whether to shelter or evacuate).

i This Board has already rejected LILCO's attempt to premise its "realism" argument on the proposition that the Governments t

l 1

.i e-could permit or allow LILCO to take such actions. It must do so once again by denying LILCO's Motions.ll/

Moreover it is clear that the NRC's amended rule does not alter the law of ',his case, 1232, the Cuomo v. LILCO ruling, or the PID and September 17 rulings applying Cuomo v. LILCO to LILCO's realism defense. The new rule does not purport to dele-gate the legal authority vested in a State or local government to a utility, or for that matter, to any non-governmental entity.

In fact, a review of the new rule reveals that there is not one scintilla of evidence that the Commission intended in any way to imply that LILCO (or any other utility) could be, or by the rule i was being, authorized to take actions which are illegal under State law. Indeed, it is preposterous even to suggest that the l NRC would have the authority to adopt such a rule. Similarly, there is no indication in the rule that the Commission intended .

l that an assumed "best efforts" governmental response would be one ,

that involves unlawful acts by the Governments. l Accordingly, it is clear that LILCO's Motions are premised i on a proposal that Government officials, and LILCO personnel ,

s would take actions which have been declared to be unlawful. i 11/ LILCO's "law of the case" discussion (LILCO Memorandum at  !

15-17) is completely result-oriented and without basis. It should be disregarded. According to LILCO, the Governments are bound by NRC decisions but LILCO is not. It is time for LILCO to ,

face reality: its version of "realism" -- relying upon the  ;

Governments, and LILCO personnel performing illegal acts -- i cannot be accepted. i i

l

a LILCO offers no new fact or argument to suggest that the previous rulings in this proceeding to that effect are not dispositive.21/

LILCO cannot do so because under settled tea judicata principles, LILCO is barred from attempting to relitigate these matters. For this reason, then, LILCO's Motions must be denied.

VI. The Exercise Board's February 1, 1988 Decision Requires Summary Reiection of LILCO's Motions LILCO's Motions seek relief under 10 CFR S 50.47(c)(1)(lii).

They ask this Board to rule that the "reasonable assurance" finding as required by that regulation can be made on the "existing record * 'm this proceeding. Thus, the Motions are fundamentally pcc*ises upon the following assertions: LILCO's Plan is adeqiat., 'ar. roved" and in compliance with the NRC's regulations excep for the lack of legal authority to carry out the activities specified in Contentions 1-2 and 4-10; in an emergency, the Governments' personnel will respond and will utilize the LILCO Plan, and will rely upon trained LILCO and LERO 2i/ LILCO's reliance upon the Affidavits of Messrs. Daverio and Kessler to argue that the Governments would authorise or permit LILCO personnel to perform police power functions including directing traffic and making and implementing protective action recommendations (LILCO Memorandum at 5), barely merits response.

To use LILCO's words, "no one can take seriously" the suggestion that because (1) some LILCO employees have been commended for participating in neighborhood watch programs or for humanitarian or rescue activities, (2) some LILCO employees have told people to leave their houses because gas was found to be leaking, or (3) LIICO employees follow procedures which require them to obey the conditions imposed by permits authorizing LILCO to perform electrical repairs on public roadways, the Governments would turn over to LILCO the police power authority involved in implementing a response to a radiological emergency, even if to do so were not unlawful. Egg Halpin Affidavit t 7, n.3.

,  ;~

L .

personne1'for guidance and assistance; and LILCO's trained-LERO personnel, with the permission and official approval of State and/or Suffolk County personnel, will implement many of the actions necessary in order to respond to the emergency. LILCO asserts that.this combination of (1) an allegedly adequate plan,  :

(2) the Governments'_ alleged reliance upon that Plan and the guidance and assistance from trained LERO personnel, and (3) LERO -

i personnel actually implementing response actions (witT Government permission) would result in a response to a Shoreham emergency which satisfies 10 CFR 50.47(c)(1)(iii), permits this Board to t make a reasonable assurance finding as required by that regula-l tion, and requires a ruling in LILCO's favor on Contentions 1-10, 1

LILCO's theory that it could obtain summary disposition of [

v its "realism /best efforts" defense to Contentions 1-10 was base-  ;

less from the beginning. This Board recognized in its ,

September 17 Order that there were factual issues in dispute  !

regarding the adequacy of the LILCO Plan and the nature and adequacy of a "best efforts" governmental response. Egg September 17 Order at 26. Indeed, in CLI-86-13 the Commission recognized that there were factual matters of response adequacy I which required evidence. This in itself precludes this Board I i

from making the Section 50.47(c)(1)(lii) reasonable assurance f finding now, in a summary ruling, without'any additional evidence r

i or facts in the record to support LILCO's position. i

{

I

. I l

i  !

i i

. - _ _ - _ . . - _ _ _ _ - _ _ _ _w

a '

y ~

7 o

E The Exercise Decision, however, has now removed any ambiguity -- assuming any existed in the first place -- as to whether LILCO's "realism"/"best efforts" theory is amenable to a summary. ruling favorable to LILCO. Clearly it is not. The Decision by the Exercise Board established among other things the following: LILCO does not have an adequate or "approved" plan --

it is fundamentally flawed; LILCO's communications capabilities are fundamentally flawed -- there is no basis to find that LERO personnel could convey timely or accurate data to the Govern-ments; LERO's response implementation capabilities are funda-mentally flawed -- the Board found that LERO personnel had not been trained to carry out the Plan or its procedures; and there is no reasonable assurance that public health and safety could be adequately protected by LILCO's Plan or LERO personnel. Egg, e.o., Exercise Decision at 3-4, 52-53, 63-64, 250-52.

The' meaning of the Exercise Decision is clear: the LILCO Motions must be rejected. This Board cannot oossibiv find on the

- g_xist'ina record that a oest efforts" aovernmental resoonse, ggImpant to a fundamentally flawed clan and in coniunction with a badly trained LERO orcanization could be adecuate or oermit the recuired reasonable assurance findino. The fundamental flaws

~

found by the Exercise Licensing Board -- involving such essential areas as communications, training, communicating emergency infor' -

mation to the public, and mobilization of emergency workers --

' - require that this Board summarily reject LILCO's Motions.

Y A

N ,

,A.

i LILCO itself acknowledge 3 the relevance of the Exercise Decision-to LILCO's Motions by its.own words. LILCO asserts:

The "best efforts" principle also explains why the existina record is so important in this remand proceeding: there is no better guide to what are "best efforts" for Shoreham than the eight months of hearings already held on the Shoreham emergency plan. The LILCO Plan was the best offsite olan one NRC Staff witness had ever seen. Tr. 15,226 (Sears). The Intervenors raised every conceivable criticism of the plan, and these criticisms were addressed by expert wit-nesses, debated by lawyers, and decided by the Board, Appeal Board, and Commission. In those instances where the Intervenors were correct, LILCO changed the plan. See, e.g.,

Attachment 2 to LILCO's Motion for Summary Disposition of Contentions 1 and 2.

Perhaps no emergency plan can be the "best."

But if there are better ways to perform the nine functions in the "lecal authority" contentions than LILCO has orocosed, this acency's exhaustive orocesses have failed to reveal them. Thus the attached motions for summary disposition are based on what the record shows about how decisions should and would be made, traffic controlled, and so on.

LILCO Memorandum at 8-9 (footnote omitted; emphasis added).21/

Taking LILCO's own words, the "record" which forms the basis for the Exercise Decision establishes conclusively that the LILCO Plan is fundamentally flawed. That record -- a record of an I

21/ The Governments note that the prior "record" to which LILCO

-apparently refers tells nothing about the adequacy or nature of a "best efforts" governmental response. That record, at most, 3 addresses what LILCO allegedly can do. The portion of the record l~ ionored by LILCO, however, demonstratea that what LILCO wishes to assume would happen as part of a "best efforts" government response to an emergency in fact would not. Egg Cuomo Affidavit and Attachment thereto; Halpin Affidavit and Attachments 3-5 thereto; Roberts 1988 Affidavit; Roberts 1984 Affidavit; Papile Affidavit; REPG Affidavit; and the Exercise Decision.

4 I

inadecuate olan -- completely refutes LILCO's Motions: there cannot possibly be a finding that a "best efforts" response satisfies the regulations if such response l's based -- as LILCO urges in its Motions -- upon a fundamentally flawed plan. The Board and parties should waste no further time on LILCO's

. Motions.

Section 50.47(c)(1)(iii) provides that the following finding must be made:

The applicant's emergency plan orovides reasonable assurance that oublic health and safety is not endancered by ooeration of the facility concerned. To make that finding, the applicant must. demonstrate that, as outlined below, adeauate orotective measures can'and will be taken in the event of an emeroencv.

(emphasis added). The Exercise Decision establishes beyond any doubt that the necessary reasonable assurance finding cannot be made with respect to LILCO's Plan. For example, the Exercise Board stated:

These deficiencies in LILCO's training program oreclude a findino of reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency at SNPS and therefore constitute a fundamental flaw in the Plan.

Exercise Decision at 251 (emphasis added). Indeed, by the i

Board's definition, each fundamental flaw identified in the Exercise Dr. cision precludes a reasonable assurance finding. Id.

I

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l l

l L

at 6-II. And, multiple fundamental flaws in the LILCO Plan were identified. 14. at 251-52. Thus, the Exercise Decision itself provides multiple reasons why the 10 CFR 50.47(c)(1)(iii).

standard cannot be met. Accordingly, this Board'must promptly deny LILCO's Motions.

The Governments believe that the foregoing summary discus-sion of the Exercise Decision is sufficient to demonstrate the necessity of denying LILCO's Motions. Nevertheless, the Govern-ments set forth below some additional specific reasons that the Decision compels a ruling in the Governments' favor on LILCO's Motions.

A. LERO's Communications Capabilities and the Communications Structure in the LILCO Plan LILCO's Motions repeatedly assert that during an emergency LERO personnel will communicate with the Governments in order to provide essential emergency information, data, recommendations and advice. Egg, e.o., LILCO 1/2 Motion, Statement of Material Facts, at 2 ("The Traffic Control Point Coordination is in-structed by procedures to brief the Suffolk County police on how the LERO traffic control plan works.") Indeed, LILCO stresses the need that "best efforts" Government responders would have for "precise, accurate and timely reports on plant. conditions and information about radiological conditions in the field." L1LCO 5/6 Motion at 20. However, it is beyond dispute that this Board cannot rely upon, or assume the existence of LERO's capability to 54 -

4 accomplish these most basic communications tasks. For instance, the Exercise Board found:

Breakdowns in~ communications occurred within LERO as well as between LERO/LILCO on the one hand and the public and media on the other.

Errors occurred not only with respect.to procedures, but also with respect to the sub-stance of the information transmitted. Con-fusing and conflicting information was fur-nished to the public, and erroneous informa-tion to the media.

Exercise Decision at 3-4.

The pervasive nature of LILCO and LERO communications defi-ciencies even led the Board to rule that the very structure of the communications system established in the LILCO Plan, which does not permit lateral communications among workers, required reversal of a 1985 PID ruling favorable to LILCO:

Thus that Board gave the Plan its qualified approval, an approval based on inherent assumptions that traffic guides need only carry out preplanned actions, that "problem-solving" would not be required, and that ad ,

hoc responses were not called for. Clearly, the Exercise, with its accompanying free play messages, indicated that a response to an emergency-within-an-emergency was in fact a natural requirement for an adequate plan. In chort, the OL-3 Board's 1985 approval was based on an assumption which the exercise proved untenable. And, as that Board clearly implied, if one accepts the "free-play" conditions of the exercise (and in deference to FEMA's standard practice we do) the communication system in LILCO's plan is fundamentally flawed in that it inherently hampers response to unexpected events.

4

' Exercise Decision at 52-53.

The Exercise Decision indicates that LILCO may not be capable of fixing the pervasive and fundamental communications problems. For example, after discussing some of LILCO's problems in dealing with the traffic impediments, the Board wrote: "These inadequacies demonstrate a fundamental flaw. Further, the funda-mental -flaw involved is . . . a flaw in the Plan itself, revealed in the implementation but not simply engendered.by it. We note that communications problems persisted in subsequent drills."

Exercise Decision &; 50. Similarly, the Board stated:

"(C]learly whatever steps LILCO took during the six months following the exercise to fix the problems noted by FEMA, including the addition of a Traffic Engineer to the EOC, the fixes did not succeed in curing the fun-damental flaw in the Plan, vis., the defici-ent communication structure and procedures.

It may be difficult for LILCO to cure this fundamental flaw because of the training and experience of the personnel used to implement the Plan. As emergency workers, LILCO per-sonnel are amateurs; this fact may be the root cause of the communications problems.

While both FEMA and Impell call for more and better training in the area of communication, it is questionable whether utility personnel can ever achieve the level of performance that professional emergency workers, such as the police, display . . . Consequently, the LERO approach is generally and fundamentally unsatisfactory, and it may be inherently so.

Exercise Decision at 63-64. Overall, the Board found LILCO's Plan to be fundamentally flawed in the area of emergency communi-cations. Id. at 250-54.

Accordingly, it is clear that every assertion in LILCO's Motions to the effect that LERO personnel could or would commun-icate effectively with.the Governments is without basis.28/

Since the effectiveness of LILCO's alleged "best efforts" Govern-ment re'sponse is dependent upon the Governments' receiving key data and information from LILCO, only one conclusion is possible:

there is no basis to find that a "best efforts" Government response utilizing the LILCO Plan or in conjunction with LERO workers, would be adequate or would permit a reasonable assurance finding.

B. LILCO's Training Program and the Capabilities of "Trained" LERO Workers The fundamental flaws in training found by the Exercise Licensing Board also compel summary rejection of LILCO's Motions.

A basic premise of LILCO's Motions is that LERO personnel are well trained and capable of performing all the functions called for in the LILCO Plan and Contentions 1-10, whether those duties involve communications with Government officials, or, with 28/ LILCO's attempt to rely on the 1986 Exercise and FEMA's evaluation of LILCO's interactions with "simulators" who pre-tended to be government officials to support LILCO's assertion that LERO personnel could "coordinate with the State and County,"

is unfounded. In its Report, FEMA itself emphasized that the so-called "simulators" played passive roles: they "were in-structed not to assume a response posture," and "at all times they were to allow the LERO Staff to direct all response ef-forts." FEMA Post-Exercise Assessment (April 17, 1986) at 7.

Thus, as FEMA itself has reported, there is no basis arising out of the Exercise to assess, much less reach conclusions on LILCO's ability to "coordinate" or "communicate" with actual government officials engaged in an active "best efforts" response.

p alleged official approval, the implementation of particular response actions.29/

The Exercise Decision makes clear that LERO personnel arg not trained to carry out such functions. For instance, the Board' stated that during the Exercise, (t]he proportion of LERO workers observed failina to follow the Plan or orocedures was disturbingly great. These failures occurred frequently enough to suggest that there is, indeed, a cervasive oroblem in trainino LERO workers to follow the Plan. We conclude, therefore that . . . LILCO's trainina orocram has not adecuately trained LERO cersonnel to follow the LILCO Plan and orocedures.

Exercise Decision at 194 (footnote omitted; emphasis added).

Similarly, the Governments alleged that LILCO's Exercise performance demonstrated that LILCO's training program failed to teach LERO personnel to communicate necessary information, to acquire and obtain such information, or to recognize the need to do so. The Board agreed:

LERO EOC and/or ENC personnel failed to communicate accurate and complete information about roadway impediments not only during the February 13, 1986 Exercise, but also during the June 6, 1986 drill and again during the December 10, 1986 drill. This recurrence of a problem which produced a Deficiency in FEMA's assessment of the Exercise strongly suggests that LILCO's training in the area of communications, at least, is woefully inade-29/ Egg, e,o.., LILCO Memorandum at 8 (LERO personnel "were trained to respond to precisely the type of emergency being faced") (emphasis added); LILCO 1/2 Motion at 8 (Governments will not "ignore the advice of trained (LERO) traffic guides . . . . ")

(emphasis added).

quate'in that it has failed to teach LERO personnel how to improve their performance.

Exercise Decision at 215. The Board went on to state:

The-fact that shift 1 demonstrated the same kind of communication problems in December 1986 that they demonstrated in February 1986 indicates that either the training program taught then little about effective communi-cations between February and December, or that the EOC personnel on shift 1 are incap-able of learning. The fact that the same kind of communication problems occurred in other drills, on the other hand, suggests that the level of training in other shifts is comparable to that in shift 1. The conclu-sion that must be drawn is that the trainino orocram as conducted before and since thn-Exercise has failed to teach LERO cersorntl how to communicate emeroency information effectively.

Exercise Decision at 216 (emphasis added). The Board stated that:

(W]e agree with Suffolk's witnesses that timely and accurate communications provide the backbone of a successful emergency response, (and) we conclude that LILCO's training program is fundamentally flawed in the area of communications.

Exercise Decision at 217.

l l

The Board reached the following overall conclusion related to LERO's training:

l Deficiencies in the following areas, which are significant to the ability of LERO to implement the LILCO Plan, were found during the Exercise and were not demonstrated to l have been compensated for or corrected:

l l

i 1

I

1) training for,.and execution of internal communications within the LERO command structure and between that structure and field personnel in response to unexpected events;

2) basic knowledge of Traffic Guides and Bus Drivers of their assigned functions; and

3) training for timely and prompt response of Traffic Guides, Bus Drivers, Route Spotters, and Road Crews in the performance of their emergency tasks.

These deficiencies in LILCO's training program preclude a finding of reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency at SNPS and therefore constitute a fundamental flaw in the Plan.

Exercise Decision at 250-51.

Given these Exercise Board holdings -- and other similar holdings in the Exercise Decision (agg, gzgi, Exercise Decision at 180, 180-83, 224, 232, 233, and 249-50), this Board is precluded from finding, or assuming as urged by LILCO, that there exist "trained" LERO personnel who could or would implement LILCO's Plan, or otherwise respond to a Shoreham emergency adequately or in compliance with the regulations. For this reason, therefore, this Board must deny LILCO's Motions. There can be no finding that a "best efforts" Government response would be adequate or would permit a reasonable ~ assurance finding in light of LILCO's reliance upon "trained" LERO personnel to provide essential information, "guidance" and "assistance" to the Governments pursuant to a fundamentally flawed LILCO Plan.

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C. LILCO's Capabilities to Provide Emergency Information to the Public Another critical finding by the Exercise Board which is particularly relevant to LILCO's 5/6 Motion,-concerns LILCO's demonstrated inability to provide timely and clear emergency information and protective action recommendations to the public.

LILCO's 5/6 Motion asserts that the Board should find that emer-gency information and protective action recommendations can be communicated adequately and effectively to the public through a combination of the Governments' receipt and adoption of LILCO information, advice and recommendations, followed by the commun-ication and implementation of such recommendations by LILCO in a capable and adequate manner.lE/ LILCO thus urges that the Board can find regulatory compliance and the required reasonable assurance with respect to the communication of protective action recommendations to the public, based upon its assumed "best efforts" Government response relying upon purported LERO capabil-ities.

The Exercise Decision eliminates any basis to accept LILCO's assertions:

We have concluded that the weaknesses demon-strated in the public information program l 2E/ Egg, e.a., LILCO 5/6 Motion at 15 ("(T]he LERO Director l would be able to contact WPLR-FM directly and could initiate an

! EBS message immediately after approval was given by the Suffolk County Executive."); id. at 4 ("LILCO's EBS messages . . . are designed to provide information about the accident so that the public can accurately assess the risk and take appropriate action.").

demonstrate a fundamental flaw in LERO's caoq-bility to commun!cate emeroency information and orotective action recommendations to the oublic. Moreover, these weaknesses appear to be a part of a pervasive problem in LERO's communications generally.

Exercise Decision at 171, n.48 (emphasis added). Similarly, the Board stated with respect to LILCO's EBS messages:

While there is much information which is well presented in the EBS messages, we agree with Intervenors that the . . . inconsistencies detract from the effectiveness of the EBS messages and are likely to confuse the public. We view this matter as an integral part of the fundamental flaw found under (the 4 Contentions concerning Public Information).

Exercise Decision at 167-68.

This Board cannot ignore the fundamental flaws in LILCO's ability to communicate emergency information and protective action recommendations to the public which were identified by the Exercise Board.

D. LILCO's Capabilities to Mobilize LERO Workers in the Field l Another critical aspect of LILCO's Motions is LILCO's assertion that with official approval, LERO personnel can be

! 'promptly mobilized and dispatched to the field to implement an l

emergency response pursuant to the LILCO Plan. Again, this hypothesized combination of a Governments' "best effort" approval of LERO actions, and LERO's assumed capability to accomplish l

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those actions, is asserted to result in a response which satis-fies regulatory requirements and permits a reasonable assurance finding.ll/

The Exercise Decision clearly refutes such assertions. For example, the Board stated:

Clearly, large number of TCPs were not staffed until well after traffic congestion would have occurred. Consequently, a controlled evacua-tion would probably not have been achieved. We agree with FEMA that a deficiency should be assessed, and conclude that LERO's performance demonstrates a fundamental flaw.

Exercise Decision at 86.

In sum, therefore, the Exercise Decision requires the summary denial of LILCO's Motions.

VII. Discussion of Other LILCO Arauments A number of additional LILCO arguments and assertions do not withstand scrutiny and are appropriately addressed in this Over-view Memorandum.

A. The Police Power Determinations of the State and County Do Not "Challence" Any NRC Reculations

, LILCO urges that the Governments' determination that they 21/ Egg, g232, LILCO 1/2 Motion at 8 (Dispatch of police . . .

and the LERO Traffic Guides . . . would proceed in parallel. The patrolmen and Traffic Guides would link up at the ' cps, with the Traffic Guides bringing any equipment . . . that mftht be called for under the Plan."),

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l would not implement the LILCO_ Plan because they believe that  :

LILCO's Plan is inadequate and unworkable, must be disregarded by this Board, because such a belief allegedly constitutes a chal-lenge to the NRC regulations. Egg LILCO Memorandum at 12.

LILCO's argument is wrong. Regardless of the NRC's view of the adequacy of LILCO's Plan as written, there can be no question but that the Governments, as sovereign entities, are entitled and obligated to make their own judgments and determinations con-cerning how to exercise their own police powers. LILCO may not like the Governments' opinions, judgments or determinations, but that is irrelevant. And, if the Governments' judgments or deter-minations differ from those of the NRC, that, too, is irrelevant.

The NRC is free to exercise the authority it possesses under the Atomic Energy Act; presumably it will do so in good faith and pursuant to its obligations under that Act, regardless of any disagreements registered by the Governments. So, too, the sovereign Governments are free to exercise their police powers.

The fact that the NRC might believe that particular portions or even all of LILCO's Plan is adequate, is simply not relevant 'to the question of how the Governments intend to exercise their police powers, or why they choose to do so. The Governments' determination that they will not implement LILCO's Plan, because they believe it is inadequate and unworkable, certainly consti-tutes no challenge to any NRC regulation.

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In this' connection, it must be reiterated that even under the new rule,-the-focus of this proceeding on LILCO's "realism" defense to Contentions 1-10 is on whether a "best efforts" Gov-ernment response, despite the lack of training of governmental responders, will nevertheless be adequate to meet regulatory standards. The Commission itself has~thus recognized, at least implicitly, that it cannot predict via regulations precisely what the contours of a governmental response would be, or whether it would be adequate or permit a reasonable assurance finding.

In this proceeding, the Governments have provided extensive detail in explaining why their "best efforts" response would not be based upon the LILCO Plan. Such details include factors such as the Governments' lack of trust in LILCO and its Plan, specific deficiencies in LILCO's Plan, and LILCO's clear lar' of under-standing of how State response is structured. Egg, . .c., Halpin, Cuomo, Roberts 1988, and REPG Affidavits. There is no basis to suggest that the regulations have some sort of preemptive effect which could require the Governments to set aside their police power responsibilities and beliefs and instead to adopt whatever kind of response the NRC or LILCO deems to be appropriate, or even "best."ll/

ll/ In this regard, we must correct LILCO's misleading statement that the Governments, in the exercise of their police powers, could not premise a "best efforts" response on a plume EPZ greater than 10 miles in circumference. San LILCO Memorandum at

12. LILCO urges that this would constitute a challenge to the regulations. LILCO is wrong. For instance, in the Diablo Canyon case, the Licensing Board made clear that the State of California (footnote continued)

A.

In sum, therefore, LILCO's argument that the Governments are somehow challenging the regulations is completely off base.

The regulations do not purport.to prescribe how the Governments will respond in the event of an emergency. . Rather, the NRC regula-tions, particularly the new rule, call for. case-by-case adjudica-tion to find out precisely how the Governments would respond, and then to determine whether such a response would'be adequate under the regulations. The September 17 Order is to the same effect (ggg September 17 Order at 25-27), as is CLI-86-13. 'LILCO's "challenge to the regulations" argument is without merit.

B. New York Law Does Not Require or Permit Government Reliance Uoon LILCO or LERO LILCO asserts that New York State law and particularly Article 2B thereof, compels the Governments to rely upon or work i

cooperatively with LILCO in the event of a Shoreham radiological -

emergency. Ett LILCO Memorandum at 5-8. That is a misstatement of the law. As set forth in the Affidavits of Governor Cuomo and County Executive Halpin, New York State law, to the extent that '

it permits reliance upon volunteer organizations, :learly does I not compel any government to utilize the services of any particu-l lar volunteer organization. Rather, while such services may be i utilized in appropriate circumstances, it is clear that the (footnote continued from previous page) and its political divisions could adopt plume exposure pathway planning zones different from those set forth in the NRC regulations. Egg Pacific Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-82-70, 16 NRC 756, 764, '

801-02 (1982). LILCO ignores this clear precedent, i

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services could be utilized appropriately only in circumstances

.where the Governments have confidence in the capabilities and professionalism of the volunteer organizations which are involved. Cuomo Affidavit 1 7; Halpin Affidavit V 12.

It is clear in this instance that the Governments have a2 confidence whatsoever in LILCO's capabilities or professionalism.

Rather, as set forth most recently in the Exercise Decision, LILCO's allegedly "highly-trained" LERO personnel are in fact "amateurs." Egg Exercise Decision at 63. There is no basis for LILCO to assert that New York State law requires, or would in fact permit, a sovereign government to rely on such incompetent resources in order to respond to an emergency. As made clear in the Cuomo and Halpin Affidavits, if the NRC were to make the mistake of licensing Shoreham, the State of New York and Suffolk County have determined that any response to a Shoreham accident would be on their own -- without relianca upon or support from the Long Island Lighting Company. Cuomo Affidavit 1 4; Halpin Affidavit V 18.

C. Other Emergency Response Plans Are Irrelevant to the Question of the Adequacy of LILCO's Plan or of a "Best l Efforts" Government Response to a Shoreham Emeroency l

LILCO relies extensively in its Motions on references to provisions in county emergency response plans for plants other than Shoreham. Egg, e , q ,. , LILCO's 7/8 Motion, Attachments 2-4, l

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9-12; LILCO 5/6 Motion at 3, 11-12, 16. The reliance is misplaced and the references must be ignored by this Board.

First, in amending 10 CFR S 50.47(c)(1), the Commission 4

stated that other plans are irrelevant to the question whether a particular emergency plan is adequate under the NRC's amended emergency planning regulations. Egg 52 Fed. Reg. 42085. Second, as a factual matter, the provisions of other plans are obviously irrelevant to a determination of whether LILCO's Plan is adequate, or whether a "best efforts" Government response by Suffolk County and the State of New York to a Shoreham emergency would be adequate. Therefore, LILCO's reliance on the provisions of other county plans for other nuclear plant sites, must be disregarded.

1. Irrelevance As A Matter of Law In amending 10 CFR Section 50.47(c)(1), the Commission determined that other emergency plans are irrelevant to the ques-tion of whether a given plan is adequate under the emergency planning regulations:

(T]here is a case-by-case evaluation of

, whether the plan meets the standard of l "adequate protective measures . . . in the event of an emergency." Likewise, the acceotability of a olan for one olant is not l

measured acainst olans for other nuclear olants.

52 Fed. Reg. 42078, 42084 (Nov. 3, 1987) (emphasis added). More-l over, the Commission elaborated:

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.4 The final rule makes clear that every emer-cency olan is to be evaluated for adecuacy on its merits, without reference to the specific dose reductions which might be accomplished under the plan or the capabilities of any other olan.

52 Fed. Reg. 42078, 42085 (emphasis added).

The Commission's determination that other plans are irrele-vant to the adequacy of LILCO's Plan under Section 50.47(c)(1) is a conclusive determination, binding on this Licensing Board. Egg Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-883, NRC (Feb. 3, 1988) (slip. op. at 23)

(Board is duty bound to respect NRC's declarations). Therefore, as a matter of law, LILCO's references to the provisions of other county plans for other plants, are irrelevant.

Further, LILCO may not now argue that the provisions of other plans are relevant to the adequacy of its Plan, because LILCO has itself acknowledoed the binding effect of the Com-mission's recent interpretation. Egg LILCO's Motion for Summary Disposition of the Hospital Evacuation Issue at 7 n.3 (Dec. 18, 1987) ("Hospital Evacuation Motion"). In attempting to explain the Commission's remand order in CLI-87-12, LILCO acknowledged the Commission's "determination" in connection with the amend-ments to 10 CFR Section 50.47(c)(1):

that (the Commission's) emergency planning rules were "necessarily flexible," that "there is no uniform ' passing grade' for emergency plans," and that "the acceotability of a clan 69 -

i

e for one olant is not measured aaainst olans for other nuclear olants."

Hospital Evacuation Motion at 7 n.3 (ouotino 52 Fed. Reg. 42084)

(emphasis added). LILCO neither challenged that Commission interpretation then, nor may it do so now before the Licensing Board, particularly when it relied upon that statement previ-ously.

2. As a Factual Matter, Other Plans of Other Counties for Other Plants Are Irrelevant to the Ouestion of Whether_LILCO's Plan is Adecuate Even without the Commission's interpretation or LILCO's acknowledgment thereof, it is clear that emergency plans of other counties for other plants are not relevant to the question before this Board: whether LILCO's Plan is adequate under the NRC's emergency planning regulations. First, the Shoreham licensing proceedings represent an unprecedented instance in which, pursuant to their police powers, both State and local governments have determined they will not participate in emergency planning.

The situation at Shoreham is gui ceneris; plans adopted by other counties relying on the active and integrated participation of local and State governments and utilities are necessarily inapplicable to this case.

Second, apart from the absence of local and State govern-ments in LILCO's emergency planning at Shoreham, it is documented that the adequacy of emergency plans can only be determined on t

the basis of case-by-case analysis, focusing on the unique condi-tions of each-plan, including the level and quality of integra-tion between the utility'and State.and local government agencies; the unique demographics of the respective plume exposure pathway and ingestion pathway EPZs; and the demonstrated expertise of the various response authorities at the given plan. Egg REPG Affidavit V 19. LILCO has proffered no evidence to demonstrate that the factors involving any of the other county plans for other plants which it cites are the same or even similar to those relating to Shoreham.22/

3. Plans of Other Counties for Other Plants are Irrelevant to the Question of the Adequacy of a "Best Efforts" Response of Suffolk County to

& Shoreham Emeraency LILCO also appears to suggest that merely because certain plans of various counties relating to nuclear power plants other than Shoreham have particular provisions in them, this Board should or could find, as a matter of fact, that Suffolk County officials would respond in the same way in an ad hog "best efforts" response to a Shoreham emergency. Egg, e,o., LILCO 5/6 Motion at 3, 11-12, 16. The suggestion is, on its face, absurd.

Clearly, there is absolutely no basis, nor does LILCO sug-gest any, for concluding that Suffolk County would choose to act 21/ Indeed, LILCO does not even proffer a witness competent to testify about those plans. In the Exercise proceeding, the Board struck LILCO testimony regarding exercises at other plants because LILCO's witnesses did not have sufficient bases to sponsor the testimony. Tr. 6090.

4 in accordance with some plan, devised by some.other Governmental entity, to address an emergency, in a completely different loca-tion, in light of local conditions, response needs and capabili-ties which are likely to be entirely different from those pre-sented by a Shoreham emergency. LILCO does not even bother to address the obvious fact that there is no evidence that Suffolk County officials are familiar with any such other plans. This LILCO argument must be rejected out of hand.

D. The Draft NUREG-0654 Sucolement Must be Ionored LILCO asserts that in considering its Motions, this Board may utilize draft NUREG-0654, Rev. 1, Supp. 1. In particular, LILCO would have this Board adopt as "undisputed facts" upon ,

which a summary disposition ruling could be based, the following three "assumptions" which are set forth at page 2 of that draft document:

In an actual radiological emergency, State and local officials that have declined to partici-pate in emergency planning will:

a) exercise their best efforts to protect the health and safety of the public; b) cooperate with the utility and follow the utility offsite plan; and ,

c) have the resources sufficient to imple-ment those portions of the utility offsite plan where State and local response is neces-sary.

Sag, e.o., LILCO Memorandum at 11; LILCO 10 Motion, Attachment 1, Fact 2. This Board may not rely upon this draft supplement for several reasons.

• First, the referenced document is merely a draft, which cur-J rently is the subject of public comment. It makes no sense to g suggest that a mere draft of a documen' issued for public comment is entitled to any weight as evidence, or "guidance," or anything else in the context of determining whether LILCO is entitled to summary dJsposition in this proceeding. The draft document is not a regelation which could govern a ruling on the law; nor does it contain any facts or evidence which could impact a finding of fact. The, draft supplement contains, at most, draft assumptions.

They have no evidentiary or legal significance.

Second, there is no basis for relying upon, adopting or applying the draft document or any of its contents in making legal rulings before the public comment process is completed, or before the document has even been finalized. This particularly is the case given the substantial public interest in the new rule, which gave rise to the decision to prepare the draft supplement in the first place.

Third, the second assumption in the draft supplement -- that government officials would "cooperate . . . and follow the utili-ty . . . plan" -- has clearly been rebutted in this particular

adjudication. Halpin Affidavit; Cuomo Affidavit. Egg Section III above. Clearly, it is irrelevant.

Fourth, there is no basis upon which'the Board could assume, ,

in this case, that the Governments "have the resources sufficient to implement those portions of the utility offsite plan where State and local response is necessary," as set forth in the third assumption in the draft supplement. This draft assumption has no basis. It is not mentioned in either the proposed or final version of the NRC's new rule (52 Fed. Reg. 6980 (Mar. 6, 1987);

52 Fed. Reg. 42078 (Nov. 3, 1987)), so it has no rulemaking or other regulatory basis. This draft "assumption" is also rebutted by the facts in this case, and thus cannot be applied here in any event. Egg Roberts Affidavit 1 7; REPG Affidavit 11 6, 10.

Moreover, FEMA itself has stated that the assumptions in the draft supplement are not based on facts, but rather, originated with the NRC Staff. Thus, after having reviewed the draft assumptions which the NRC Staff suggested that FEMA should use in evaluating utility plans, FEMA stated:

(S)ince the assumptions originate with the Nuclear Regulatory Commission and are based on general presumptions rather than specific

! verified facts, FEMA will not be in a position I

to defend the assumptions in NRC regulatory proceedings.

Letter from David McLoughlin, FEMA Deputy Associate Director State and Local Programs and Support, to Victor Stello, NRC

O Executive Director for Operations, (October 28, 1987).2d/

'Indeed, the NRC itself acknowledged "FEMA's declared reluctance to make judgments on emergency planning in cases of state and local non participation . . . because of the degree of conjecture that would in FEMA's view be called for . . . .

52 Fed. Reg. at 42,082. In light of these acknowledgements by FEMA (the expert agency on emergency preparedness) that the assumptions in the draft supplement are not based on fact and cannot be defended by FEMA, this Board cannot rely on such baseless draft assumptions in finding there are no facts in dispute as urged by LILCO in its Motions.dl/

dd/ It is also noteworthy that despite its substantial experience in dealing with state and local government responses to emergencies, FEMA had also stated earlier with respect to the second assumption, that:

The belief expressed by the NRC that State and local governments which have not been involved in emergency planning would nonetheless re-spond to an actual emergency and follow a com-prehensive utility plan is open to question.

FEMA has no data that would indicate what State and local government reactions might be in such circumstances.

Letter from Dave McLoughlin to Samuel J. Chilk (April 28, 1987),

at 4.

15/ It would be improper for this Board to consider the draft supplement as some sort of authoritative document for an additional reason. As noted, the three draft assumptions were created, without factual basis, by the NRC Staff. The NRC Staff is a party in this proceeding and has taken positions adverse to the Governments with respect to the new rule and with respect to LILCO's latest round of summary disposition motions on its realism defense. It is absurd to suggest that the Board could adopt draft "assumptions" made up by the Staff as any kind of authoritative basis for a legal or factual ruling, particularly in the absence of any opportunity by the Governments to pursue discovery concerning their origin. Due process is thrown out the (footnote continued)

C This Board must ignore all references to draft NUREG-0654 Supp. 1 in LILCO's Motions and Memorandum.

E. LILCO's Summary Disposition Motions are Premature Just like virtually every other summary disposition motion recently filed by LILCO, its Motions on Contentions 1-10 are premature. The Motions are filed pursuant to 10 CFR S 50.47tc)(1)(iii), and are premised on LILCO's new Revision 9 of its Plan. The Governments have had no opportunity, however, to review LILCO's Revision 9, or to review any version of LILCO's Plan with respect to compliance with the new Section 50.47(c)(1)(iii). Accordingly, the Motions must be d(nied under 10 CFR S 2.749(c).

The LILCO Motions all rely upon Plan changes allegedly in-corporated in Revision 9. The Motions were filed on December 18, 1988. R4 vision 9 was not provided to the parties until January 75, 1988. It is over 1,000 pages long. According to LILCO's cover letter accompanying the Revision, Revision 9 purportedly incorporates multiple changes in the prior revisions (footnote continued from previous page) window by any such suggestion. This particularly is the case given the documented evidence that the Staff is working to sup-port LILCO's bid for an operating license, by, among other things, holding a secret meeting with LILCO officials and attor-neys which excluded the Governments' representatives. Egg Reply of Suffolk County, the State of New York and the Town of Southampton to the NRC Staff Response in Support of LILCO's Motion for Summary Disposition of the Hospital Evacuation Issue (Feb. 1, 1988) at 20-21, and Affidavit of Lawrence Coe Lanpher attached thereto.

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of LILCO's Plan in order to conform the Plan to the amended rule.

The Governments have had no opportunity to review Revision 9, much less to pursue discovery or any other research, investi-gation, or analyses related to the provisions of that revision upon which LILCO's Motions are based. Egg Letsche Affidavit; Zahnleuter Affidavit. In these circumstances, since LILCO's summary disposition motions rely upon its Plan and the changes in Revision 9 (although the motions do not cite to the actual changes but only the "promised" changes), it is premature to go forward LILCO's Motions in advance of an opportunity to review Revision 9.

We need not belabor this argument further. This Board has recognized that it makes no sense to go forward with summary disposition motions on particular issues when the items addressed in those motions are impacted by changes made in the recently released and voluminous Revision 9. Egg, e o., Memorandum and Order (Feb. 1, 1988) (on the hospital evacuation issue). Since LILCO has admitted that Revision 9 is directly implicated in its Motions, the Board should rule, at a minimum, that any action on the Motions is deferred until there has been an a' equate oppor-tunity to review Revision 9, and to pursue discovery on Revision 9 provisions which are impacted by the new rule.

VIII. Conclusion For the foregoing reasons, as well as those contained in r

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the Governments' separate contention-specific Answers, LILCO's e Motions must.be denied.

Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 A 1 1 I(awr'ence Coe La%Mr Karla J. Letsca Michael S. Miller KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County j -

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'bian G. Palomino Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitcl Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York

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