ML20203N779
| ML20203N779 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/09/1986 |
| From: | Lanpher L, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#486-1099 ALAB-847, LBP-85-12, OL-3, NUDOCS 8610200023 | |
| Download: ML20203N779 (15) | |
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- /OW 00CMETED USNRC Octbrk,k9gy :15 cypr c c: -
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission
)
In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear. Power Station, )
Unit 1) )
)
SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON PETITION FOR REVIEW OF ALAB-847 Pursuant to 10 CFR S 2.786'b), Suffolk County, the State of New York, and the Town of Southampton (the " Governments")
petition the Commission to review Parts II and III of ALAB-847, issued by the Appeal Board on September 19, 1986, in which the Appeal Board reversed the Licensing Board's findings on Contentions 11 (Conflict of Interest) and 92 (State Plan). See Lona Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-847, NRC (Sept. 19, 1986) (slip op. at 18-35),
8610200023 061009 PDR ADOCK 05000322 G PDR hSO)
lt-O reversina, LBP-85-12, 21 NRC 644, 679-86, 882-85 (1985).1 I. The Licensing Board's Decision on Contention 11 Was Correct Contention 11 presents a factual question: whether the LILCO Plan and its command and control strategies could and would be effectively implemented in a Shoreham emergency given the alleged failure of LILCO "to institute appropriate measures to ensure the independence of LERO personnel." 21 NRC at 964. The Licensing Board concluded in the negative: LILCO failed to sustain its burden of demonstrating reasonable assurance that appropriate command and control decisions would be made because LERO personnel in command and control positions would likely experience a conflict of interest which would seriously undermine their ability to implement the Plan. See id. at 679-86.
The Appeal Board committed two fundamental errors in reversing the Licensing Board. First, the Appeal Board refused to deal with what the Licensing Board actually found. The Licensing Board made factual findinos: it found that placing high-level LILCO management employees in LERO command and control positions would affect those employees' ability to make 1 The Governments do not at this time seek review of Part I of ALAB-847 (slip op. at 7-18), which concerns the Licensing Board's finding in LBP-85-31, 22 NRC 410, 417 (1985), that LILCO had failed to establish that its Plan is adequate in providing relocation center services for persons of the general population who seek only monitoring and decontamination but not shelter.
That issue has been remanded to the Licensing Board for certain specified determinations. Egg ALAB-847, at 8-18. If a need to appeal should later arise, the Governments will file an appeal in the context of the further actions of the Licensing Board.
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protective action recommendations and related decisions designed to protect the public. The Board considered expert opinion and factual evidence on that issue. Its findings cannot be read to mean or imply that persons other than those proposed in the LILCO Plan to occupy command and control positions, or the same people with other devices to ensure independence, would be unable to perform as required. Indeed, the Board expressly recognized that a different proposal might meet regulatory requirements despite the fact that the one before it did not:
It may well be that this flaw (the fact that LERO decisionmakers are unduly influenced by LILCO] is curable, and there is, of course, no bar to LILCO's proposing a plan that would meet the requirements. The present LILCO Plan is not such a plan.
21 NRC at 886.
The Appeal Board refused to deal with the Licensing Board's factual determination. Rather, the Appeal Board attempted to convert the Licensing Board's factual decision to an issue of law. Thus, the Appeal Board stated:
Reduced to essentials, the (Licensingl Board i
determined that the Commission's regulations require the type of independence that can result only when decisionmakers have no association with a utility; hence, LILCO's plan is inherently incapable of providing public protection comparable to that which would be offered if governmental officials l were to participate. The Licensing Board, however, has misconstrued the regulatory requirements imposed by the Commission.
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O ALAB-847, at 22.
As noted above, however, and in the Governments' earlier brief to the Appeal Board,2 the Licensing Board did not rule that LILCO's Plan was " inherently incapable" of anything. It did not rule that the LILCO Plan had to use government officials, or, indeed, even "decisionmakers (having) no association with (the]
utility." It did not misconstrue any regulatory requirements.
Rather, as a factual mutter and dealing solely with the factual evidence that had been presented at trial, the Licensing Board found that LILCO had not met its burden of proof; it even left open the possibility that LILCO could choose to try again. No amount of semantics or manuevering by the Appeal Board can convert the Licensing Board's factual determination into something else.
When the Appeal Board fundamentally misconstrues a Licensing Board decision, an important issue of fair procedure, law, and policy is presented. Egg 10 CFR S 2.786(b)(4)(i). The Commission should take review.
The Appeal Board's second fundamental error in ruling on Contention 11 must be laid squarely at the Commission's door.
The Appeal Board's " alternate" reason for reversing on Contention 11 was "that command and control authority of the type found objectionable by the (Licensing] Board is not likely to rest exclusively in the hands of the utility." ALAB-847, at 26.
2 Egg Brief of Suffolk County and the State of New York in Opposition to LILCO's Appeal from the Atomic Safety and Licensing l
Board's Partial Initial Decision on Emergency Planning, July 11, 1985, at 52-53, 58-59.
l Thus, relying upon the Commission's July 24, 1986, decision in CLI-86-13, the Appeal Board found that concerns over possible conflict.of interest had been rendered largely academic (ALAB-847, at 28), because "the Commission was prepared to assume that State and County officials would participate in emergency response on a 'best efforts' basis by relying on the LILCO Plan as a source of emergency planning information and options." Id.
at 27-28 (Emphasis added).
The Governments were precluded from seeking reconsideration of CLI-86-13, a decision rendered on petition for review. See 10 CFR S 2.786(b)(7). In the context of the instant petition, however, the Governments must stress their disagreement with CLI-86-13 and advise the Commission that its July 24 decision was not only in error itself, but also is now spawning further error due to the Appeal Board's reliance upon it.
The errors in CLI-86-13 -- and the illegality of LILCO's
" realism" argument -- are too numerous to detail in this review petition. Most have already been brought to the Commission's attention and ignored.3 The Governments stress only the following:
I 3 See, e.a., the Licensing Board's and Appeal Board's decisions rejecting " realism," LBP-85-12, 21 NRC at 909-12 and ALAB-818, 22 NRC at 673-76; Saffolk County's Answer to LILCO's
" Motion to Strike Unauthorized Pleading Filed on June 23 by l
Suffolk County," July 14, 1986; State of New York Response to
" Response of Long Island Lighting Company to Governor Cuomo's June 30, 1986, ' Statement,'" July 15, 1986.
-- It is unlawful for the Commission to have " ruled," as it did in CLI-86-13, that the degree of compliance with the Commission's emergency planning regulations may vary depending upon the degree of cooperation which governments provide for the utility's emergency plan.
Section 50.47 contains no such double-standard, and unsupported -- and unsupportable -- recitations about
" flexibility" (CLI-86-13, at 10, 12) cannot change the fact that the LILCO. Plan does not comply with the Commission's regulations. The NRC is required to comply with its regulations. Guard v. NRC, 753 F.2d ll44-(D.C. Cir. 1985). It plainly has failed to do so in CLI-86-13.
The question whether the State of New York and Suffolk County would use the LILCO Plan on a "best efforts" basis in an emergency is clearly a " material fact" in this licensing proceeding. The NRC assumed conclusively in CLI-86-13 that the State and County would in fact use LILCO's Plan on a best efforts basis ,
in a Shoreham emergency.4 Thero is no evidence in the evidentiary record to support this finding of fact; indeed, the entire proceeding had been premised from the outset upon a LILCO Plan which LILCO allegedly 4 In ALAB-847, the Appeal Board stated that in light of CLI-86-13, "any plan ultimately approved must involve some form of governmental participation." ALAB-847, at 28.
.a.
] would implement on its own.5 Further, the probative 4
1 data which were before the Commission on July' 24, 1986
-- particularly Governor Cuomo's statement of June 30, 1986, and County Executive Cohalan's statement of June
! 23, 1986 -- are unequivocal that the State and Suffolk County would never use or relv upon LILCO or LILCO's Plan.6 Further, contrary to Section 189(a)(1) of the
- Atomic Energy Act, 42 USC S 2239(a)(1) and Union of i
5 Egg ASLB Order Limiting Scope of Submissions, June 10, 1983 (ruling that versions of the LILCO Plan involving assumed participation of New York State'and Suffolk County were not the l subject of litigation in the licensing proceeding); LBP-85-12, 21 NRC at 895 (LILCO Plan relies " wholly upon the services of LILCO-personnel for performance of emergency functions"); ALAB-818, 22 NRC at 659 ("The-(LILCO) Plan does not rely on County or State personnel.").
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l 6 For example, Governor Cuomo stated:
New York State could not responsibly act in concert with LILCO during a radiological emergency. Indeed, the established position of the State is that LILCO's emergency plan is i unworkable. The State, therefore, could not j in an emergency choose to rely upon the very i plan that it has found to lack merit.
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- And Suffolk County Executive Cohalan stated similarly
l' I reiterate what is in essence stated above:
neither Suffolk County nor I as County i Executive has any " partnership" with LILCO; there is no ' basis for a private / governmental i partnership' of any kind with LILCO; the County would give no credence to LILCO or its plan and would not work in concert with LILCO.
Indeed, in an emergency, the public of Suffolk County -- shown by respected polls to oppose
- Shoreham by more than 75 percent -- could not
- trust their own governments officials if we, in turn, looked to the discredited LILCO for j guidance or advice.
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Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.
1984), girt. denied, 105 S.Ct. 815 (1995), the NRC has afforded the Governments no hearing on this material issue of fact.
Thus, in CLI-86-13, the NRC, contrary to law, failed to follow its regulations, ignored the basis upon which the entire litigation had proceeded, and made assumptions without any basis in the evidentiary record and without affording to the affected parties a hearing. Indeed, while cartain factual issues were remanded to the Licensing Board, the NRC barred incuiry into whether the State and County would use LILCO's Plan.7 In ALAB-847, the NRC's erronecus rulings in CLI-8G-13 are taken a step further. Contention 11 concerns the conflict of interest faced by LILCO management employees serving in LERO command and control positions. Based upon CLI-86-13, however, the Appeal Board concluded that LILCO employees in an emetgency will not experience any conflict because State and Coanty personnel, aqt LILCO personnel, would actually perform all the command and control functions set forth in the LILCO Plan. Thus, the Appeal Board has assumed that the key factual premise of the l
l LILCO Plan which Es the subject of Contention 11 -- that LERO l
t I
l 7 "(T]he Board should assume that the State and County would i in fact respond to an accident at Shoreham on a best efforts basis that would use the LILCO Plan as the only available comprehensive compendium of emergency planning information and option." CLI-86-13, at 16.
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personnel are assigned, and will perform command and control functions -- has been eliminated by the Commission's unsupported (and unsupportable) assumptions in CLI-86-13.
The NRC should take review of ALAB-847 so that it may Lindo its July 24 decision. One NRC reached far beyond any lawful decisional base in CLI-86-13 and nov its cervrs there are being magnified. The NRC should find that CLI-86-1.3 was not j u s t).f ied ,
reject the Appeal Board's use of CLI-86-13 in ALAB-847, and terminate this proceeding because LILCO's Plan cannot be implemented.
II. The Licensina Board's Decision on Contentian 92 was Correcq On Contention 92, the Licensing Board found that "while the State might respond in an emergency at Shoreham, we cannot find a clear commitment in the record that it would. respond in a meaningful way." 21 NRC at 883. The Board also stated "that LILCO's willii.gness to cooperate and coordinate and its preparations for that contingency do not provide reasonable assurance that cooperation with New York State would actually occur given the State's recalcitrant position in thic case." Id.
Finally, the Licensing Board also ruled:
The Board has no trouble finding that LILCO has the capability to perform the four specific tasks that have been identified as State functions; however, wg_have a creat deal of trouble acceotina that that is al] that_a State micht do in a_ genuine emeraency.
Clearly the State haa broader powers and resources than those called for in performing the four specific elements of State emergency function. Uncertainty about the course of 9-
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i future events reouires that commitment, resources, and decisionmakina caoability reaardina elements of the Plan be in olace H2g. . . . Further, our review of LILCO's Plan indicates that protection of public health and safety in the Shoreham EPZ would require the best efforts of response agencies to be successful. The Board need not specify a long list of contingent possibilities as to how future accidents might play out to find that absence of commitment, resources, and decisionmaking capability and authority of the State together with similar absences on the part of the County constitute a serious deficiency in the Plan.
Id. at 884-85 (Emphasis added)".
The Appeal' Board did not find that the foregoing factual findings were incorrect. The Appeal Board also agreed with the Licensing Board that Section 50.47(b) and NUREG 0654 guidance had not been and could not be satisfied by LILCO. Egg ALAB-847, at 32; 21 NRC at 884. Nevertheless, the Appeal Board reversed. In the process, the Board again committed two fundamental errors.
First, the Appeal Board again relied on CLI-86-13 as its major basis for reversing. Egg ALAB-847, at 32. Therefore, once again the NRC's decision in CLI-86-13 has become the touchstone for further errors. The NRC must take review, for reasons already discussed in Part I of this review petition.
Second, the Appeal Board ignored the crucial finding of the Licensing Board that LILCO lacks the capability of adjusting in an emergency in order to perform actions beyond the four so-called " State plan functions"8 described in LILCO's Plan.
8 The Licensing Board described these functions as "(1) dose projection based on-release data communicated to State officials, (2) ingestion pathway sampling in the 50-mile EPZ,
4 Instead, again apparently in reliance on CLI-86-13, the Appeal Board held that it is irrelevant that an entity other than LILCO
-- the State -- would have far greater capability to protect the people in an emergency. But, this is RQt irrelevant. As the Licensing Board noted, uncertainty about the course of an emergency demands that for the reasonable assurance standard to be met, there must be a present finding that the " commitment, resources, and decisionmaking~ capability regarding elements of the Plan be in place now." 21 NRC at 885. The Licensing Board found that LILCO had failed to satisfy its burden of demonstrating that such resource capabilities were in place.
That is what Contention 92 was all about and what the regulations require. Egg Guard v. NRC, 753 F.2d at 1149 ("A provision calling for pre-event arrangements is not sensibly met by post-event prescriptions."). The Appeal Board erred when it ignored the plain meaning of Contention 92, the evidence, the Licensing Board's findings thereon, and the regulations.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 (3) interdiction of contaminated foods, and (4) protective action -
recommendations." 21 NRC at 883.
l Herbert H. Brown Lawrence Coe Lanpher Karla J. Letsche Michael S. Miller KIRKPATRICK & LOCKEART 1900 M Street, N.W., Suita 800 Washington, D.C. 20036 Attorneys for Suffolk County R4+ C PA,;,[L AT)
Fabian G. Palomino
. Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Robert Abrams Attorney General of the State of New York Two World Trade Center New York, New York 10047 Attorneys for Governor Mario M.
Cuomo, and the State of New York Stephen B. Latham
% by Y ~
l Twomey, Latham & Shea l P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton October 9, 1986 i
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00t.KETED l USNRC
-October 9, 1986 l 86 0CT 15 All :15 -
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF IEi. t :AM 00CKEilHG A 5fMICf Before the Commission BRANCH
)
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station; )
Unit 1) )
)
f CERTIFICATE OF SERVICE I.hereby certify that copies of SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON PETITION FOR REVIEW OF ALAB-847 have been served on the following this 9th day of October 1986 by U.S. mail, first class.
, _ Lando W. Zech, Jr., Chairman Comm. James K. Asselstine l U.S. Nuclear Regulatory Commission U.S.' Nuclear Regulatory Commission Room 1113 Room 1136 1717 H Street, N.W. 1717 H Street, N.W.
Washington, D.C. 20555 Washington, D.C. 20555 William C..Parler, Esq. Comm. Frederick M. Bernthal
' U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 10th Floor Room 1156
- 1717 H Street, N.W. 1717 H Street, N.W.
. Washington, D.C. 20555 Washington, D.C. 20555 l
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Comm. Thomas M. Roberts Alan S. Rosenthal, Chairman U'. S. Nuclear Regulatory Commission Atomic Safety'and Licensing Room 1103 Appeal Board 1717 H Street, N.W. U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Mr. Howard A. Wilber Mr. Gary J. Edles Atomic Safety and Licensing
~
Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Morton B. Margulies, Chairman Joel Blau, Esq.
Atomic Safety and Licensing Board Director, Utility Intervention U.S. Nuclear Regulatory Commission N.Y. Consumer Protection Board Washington, D.C. 20555 Suite 1020 Albany, New York 12210 Dr. Jerry R. Kline Spence W. Perry, Esq.
Atomic Safety and Licensing Board William R. Cumming, Esq.
U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C. 20555 Federal Emergency Management Agency 500 C Street, S.W., Room 840 Washington, D.C. 20472 Mr. Frederick J. Shon Anthony F. Earley, Jr., Esq.
Atomic Safety and Licensing Board General Counsel U.S. Nuclear Regulatory Commission Long Island Lighting. Company Washington, D.C. 20555 175 East Old Country Road Hicksville, New York 11801 Mr. William Rogers W. Taylor Reveley, III, Esq.
Clerk Hunton & Williams Suffolk County Legislature P.O. Box 1535 Suffolk County Legislature 707 East Main Street Office Building Richmond, Virginia 23212 Veterans Memorial Highway Hauppauge, New! York 11788 Mr. L. F. Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 4 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C. 20555
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Mary Gundrum, Esq. Hon. Peter Cohalan New York State Department of Law Suffolk County Executive.
2 World Trade Center, Rm. 4614 H. Lee Dennison Building New-York, New York 10047 Veterans Memorial Highway Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 Martin Bradley Ashare, Esq. Fabian G. Palomino, Esq.
Suffolk County Attorney Special Counsel to the Governor Bldg. 158 North County. Complex Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 Mr. Jay Dunkleburger Bernard M. Bordenick, Esq.
New York State Energy Office U.S. Nuclear Regulatory Comm.
Agency Building 2 Washington, D.C. 20555 Empire State Plaza Albany, New York. 12223 David A. Brownlee, Esq. Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W. 43rd Street New York, New York 10036 Y
Lawrence Coe Lanphef KIRKPATRICK & LOCKHART 1900 M Street, N.W.
Suite 800 Washington, D.C. 20036 Date: October 9, 1986
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