ML20206C336
| ML20206C336 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/08/1988 |
| From: | Latham S, Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#488-7471 OL-3, NUDOCS 8811160225 | |
| Download: ML20206C336 (27) | |
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00tKETED User '
November 8. 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .,
Before the Atomic Safety and Licensina Anneal B'oNrd
)
In the Matte'. of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
GOVERNMENTS' OPPOSITION TO LILCO'S REPORT TO THE APPEAL BOARD ON THE PROGRESS AND EFEECT OF THE TOWN OF HEMPSTEAD CASE On October 21, 1988, LILCO filed a brief with this Board entitled, "LILCO's Report to the Appeal Board on the Progress and Effect of the Town of Hempstead case" (the "Report"). The title of the Roport is misleading because it "reports" very little.
Rather, the Report is a supplemental brief which attempts to reargue points that the parties addressed many weeks earlier at oral argument. Indeed, the stated purpose of the Report is not to convey information on the progress of the Town of Hemostead case,1/ Lut to obtain an Appeal Board ruling either that the case is "immaterial" to the Shoreham licencing proceeding, or that the 1/ Town of Hemostead v. Lona Island Lichtina Co., '(ndex No.
23779/87 (N.Y. Sup. Ct.).
8811160225 001100 . gO )
PDR ADOOK0500ggj2 j) 0
O Governments improperly brought it to tne Appeal Board's attention. Report at 2.
This Board should reject LILCO's so-called Report. Not only is it an unauthorized and untimely supplemental brief, but it is also incorrect on the merits. The Supreme court of the State of New York, Nahsau County, has issued a final judgment which invalidates LILCo's proposed use of its Bellmore property as a reception center without prior Town approval. Unless that judgment is modified or overturned, it is the law of the case; this Board cannot ignore it. Accordingly, this Board should rule that there is a void in the record regarding the adequacy of LILCo's rcception centers, due to the unavailability of one of the three facilities on which LILCo relies, and remand the matter for a determination of whether the loss of the Bellmore facility negatively affects the public health and safety.2/
2/ As the members of this Board appeared to agree, *.he best way to proceed is to romand the matter to assess LILCO's proposed solutions to the loss of the Bellmore facility. Egg Tr. 27, 69 (Judge Moore); Tr. 67-69 (Judge Rosenthe.1). The Governments submit that, given the current posture of 'the OL-3 proceeding, any romand should be stayed until this Boa'.*d rules on the issue of whether the OL-3 Licensing Board, to which a romand on the reception center issues would be directed, properly dismissed the Governments from the OL-3 proceeding. That issue is currently before this Board. The Governments' brief on appeal was filed on October 27. Esa Governments' Brief In Support of Appeal of September 23, 1988 Concluding Initial Decision.
I. Backaround i
LILCO h&a long been on notice of the pendency of the Town of j Hampstead case, the issues involved in the case, and the potential impact of an adverse ruling on LILCo's attempt to convince the NRC tt:at it has adequate facilities to monitor and decontaminate evacuees. Indeed, the Town of Hempstead advised LILCo first by letter, dated January 6, 1987, and then by a resolution adopted by the Hempstead Town Board on June 9, 1987, that LILCo's proposed use of the Bellmore property as a reception center violated the Town's zoning laws.1/ LILCo, however, ignored both the Town's letter and the resolution, and failed to take any steps to attempt to obtain the Town's arproval for such a non-conforming use. 7.n fact, LILCo's refusal to follow established Town procedurer,to request the necessary approvals continues to this Cay.
At the same time that the Town was attempting to obtain LILCo's compliance with its zoning laws, the parties in the Shoreham licensing proceeding were engaged in litigation before the OL-3 Licensing Board concerning the adequacy of LILCo's three reception centers. The Governments brought the Town's position to the Licensing Board's attention in the early stages of the 2/ Suffolk County, State of New York, and Town of Southampton Proposed Findings of Fact and Conclusions of Law on the Suitability of Reception Centers (Sept. 14, 1987) (the "Governments' Findings") at 175. LIIco had proposed the use of the Bellmore facility as part of its Plan only three months before the Town's January 6, 1987 letter. Egg LILCo's Motion to Reopen Record (Sept. 30, 1986).
i reception center proceeding and requested that che proceeding be held in abesyance until LILCO's zoning violations were resolved.1/
The Licensing Board denied the Governments' Motion, ruling that it would await a determination on the zoning issues by a New York State court before considering the issue itself. Memorandum and Order (Feb. 9, 1987), at 13.
In light of LILCO's refusal to comply with the Town of Hampstead's laws and procedures, the Town instituted a suit against LILCO on August 14, 1987. One year 3.ater (August 22, i
1988), after discovery and the submission of cross-motions for summary judgment, the Supreme Court of the State of New York, Nassau County, ruled in the Town's favor. As the Licensing Board had already issued a partial initisi decision ("PID*) on the reception center issues,E/ counsel for Suffolk County informed this Board of the Court's ruling in a letter dated August 25.
l This Board heard oral argument on the Governments' appeal of the reception center PID on September 14, 1988. One of the main
, topics discussed by the parties and this Board was the effect of
- the Town of Hemostead case on the reception center proceeding.
j i See e.a., Tr. 5, 25-31, 67-72. In particular, LILCO had, and took, the opportunity to address all of the points it subsequently raised in its Report. 133 Tr. 25-31 (Christman).
1/ Sg3 Suffolk County, State of New York and Town of Southampton Motion for Reconsideration of Schedule (Jan. 22, 1987).
5/ Partial Irdtial Decision on Suitability of Reception Centers, LBP-88-13, 27 NRC 509 (1988).
0 s
1 Because the state court had not yet issued a final judgment, t this Board made clear its expectation that the parties would !
provide the judgment when it became available. Tr. 89 (Judge l l
Rosenthal). The final judgment was subsequently issued on l September 20 and was provided to the Board in a September 22 ;
4 letter tron LILCo's counsel. Consistent with the Town of :
Hampstead decision, the Court's final judgment onjoins LILCO from using or representing that it will use the Bellmore property as a l reception center. or from nolding reception center drills or j
l exercises on the prop <srty, until LILCo seeks and obtains prior j i
l Town approval. The judeJaent also requires the removal or 1 E j dismantling of equipment and facilities related to the proposed I use of the facility as a reception center.
Whild LILCo counsel's September 22 letter informed the Board tht.t it was "evaluating the judgment and expect (ed) to be able to report within the next several days" on the effect of the i case, LILCo did not file its Report until one month later, on f October 21. Only three paragraphs of the 10-page Report concern information about the Town of Hannstead case. In those [
paragraphs, LILCo informs this Board that it has both filed an appeal and moved the Court to modify its judgment for the purpose i oft recognizing that Article 2-5 of the New York Executive Law ;
might possibly be invoked in the future to preempt local soning i laws ptruitting the use of the Bellmore facility for drills and i
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W
e exercises; and clarifying the judgment regarding the required removal of equipment and facilities. Report &t 2.5/
The remainder of LILCO's Report is dedicated to two arguments: (1) that the Ipwn of Hemestead decision should have no effect on the Shoreham licensing proceeding because the Bellmore facility *would be nade available" in a real emergency pursuant to Article 2-B and I;he "realism
- principle; and (2) that the issue of the decisf on's efftet cannot be considered by this Board absent the fillon and granting of a notion to reopen the record.
! Report at 2, 2-10. Counsel for LILCo had raised both points at the September 14 oral argument. Tr. 25-31 (Christman). LILCo's Report was not accompanied by a notion to supplement either its initial written brief or the points it made at oral argument.
In light of the fact that LILCO's Report was, in fact, an unauthorized supplemental brief, the Governments moved this Board to reject it summarily or to inform the Governments how to proceed in responding to the Report.2/ On the samt day, the i Board ordered that any responses to the Report sho nd be received no later than November 8 at 4:00 p.m. The Governments I
hereby submit their response in accordance with that order.
i I
J s/ Counsel for the County has been informed that oral argument on LILCO's motion for reconsideration was held on November 2.
I 2/ Governments' Motion for Summary Reiection of Unauthorized Pleading or, in the Alternative, for Procedural Guidance (Oct.
4 25, 1988) ("Motion for Summary Rejection").
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II. Discussion A. LILCO's Report should Be Reiected As An Unauthorized Brief The Governments recognize that this Board's october 25 l Order requested the parties to respond to LILCO's Report after the Governments rubmitted their Motion for Summary Rejection. It is unclear to the Governments, however, whether the Board was
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denying the Governments' Motion, retroactively granting LILCO leave to file an otherwise unauthorized pleading, or simply deferring decision on the Governments' Motion pending full briefing of all of the issues. If this Board was, in fact, granting LILCO leave to file its Report, which the Governments
' acknowledge is within the Board's discretion, it should disregard i
this section of the Governments' opposition.
l It appears unlikely that that was the Board's intention, however. For the reasons stated in the Governments' Motion for Summary R6jection, which the Governments incorporate herein, the case law on this issue is squarely against the acceptance of such i^
unauthorir.ed, post-oral argument supplemental briefs. 13a consumera Power Co., (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312, 321-22 (1981); Consumers Powet_C22 (Midland Plant, Units 1 and 2) , ALAB-115, 6 AEC 257 (1973). It would be especially unfair to the Governments t o permit LILCO to file a supplemental i
brief in light of the f act that LILCo knew of the Town of Hemostead decision well in advance of oral argument, and took the opportunity at oral argument to address the very points it now f
seeks to reargue in its Report. For instance, LILCO raised the l
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alleged need for a motion to reopen the record (Report at 6-9) at the very beginning of its presentation to the Board. Tr. 25-26, 28-30 (Christman). Likewise, LILCO's argument regarding the immateriality of the Town of Hemostnad decision (Report at 3-6) was also presentea early in LILCo's presentation. Ett Tr. 27-28, ,
30 (Christman); see also Tr. 66-72 (Bachmann, NRC Staf f) .
i LILCO has of fered no reason why it should be granted a second bite at the appla. Accordingly, its Report should be rejected summarily, except for those few paragraphs which ,
legitimately apprise tha Board of the status of the Town of Hempstead case. -
)
\
B. LILCO's Renort Sheuld Be Reis eted As Untimelv 4 Even if LILCO's Report we'ce otherwisa acceptable, LILCC has offered no explanation for its delay in filing the Report, which +
it submitted over six weeks after oral argument. LILCO knew of I the issue; r31 sed in its Report as soon as the Town of HemDstead 1 ,
decision was issued in August of this year (and, indeed, far sooner, since it h6s long known of the pendency of the case).
f J
Furthe rmore, LILCo advised the Board on September 22 that it }
would report *within the next several days" on its views of the I
effect of the Town of Hannstead decision, but did not do so for one month. Again, LILCO provides no reason why it could not f r
file its Report within the time frame it had stated to the Board.
t In the absence of any legitimate eaxcuse for failing to file ?
l f
O e
its supplemental brief earlier, LILCO's Rcport is extremely untimely and should be rejected.
C. There Can Be No Finding That LILCO's Reception Centers Are Adequate In The Face Of A State Court Ruling That cannot Use The Bel)more ProDerty Absent Town Acoroval LILCO attempts to avoid the effect of the Town of HemDstead decision by invoking "realism" as a basis for ignoring a state court decision applying local zoning laws. In esser.ce, LILCO argues that 10 CFR $ 50.47 (c) (1) , the so-called "realism" rule, requires that this Board assume that a governmental "best efforts" response in a real emergency would necessarily include the invocation of Article 2-B of the New York Executive Law to suspend local zoning laws so that the Bellmore property could be bcilized as LILCO proposes.E/ LILCO's argument, however, is nothing more than an improper attempt to use the "realism" rule as a means to preempt zoning laws. This effort must be rejected.
Both the NRC's regulations and Supreme Court case law recognize zoning as a matter plainly within the exclusive jurisdiction of local authorities. In addition, LILCO's argument also distorts R/ LILCO summarizes its argument as follows:
In a real emergency, then, LILCO would ask the government authorities to suspend laws, including local zoning ordinances, to the extent that they prevented people from being monitored or jeopardized their health and scfety. Under the Commiscion's regulations, it la indisputable that the authoritios would use their "best efforts" to respond to the emergency and to protect the health and safety of the public. 10 CFR $ 50.47 (c) (1)
(19BC).
LILCO Report at 4.
, i l
I the stated purpose of the "realism" rule, and ignores the factual predicates of 10 CFR 5 50.47 (c) (1) .2/ Finally, LILCO's assertion that officials would or even could invoke Article 2-B to permit l use of the Bellmore property is unsupported by the language of the statute and, in any event, is based on nothing more than speculation.
- 1. Zoning Laws Are Not Preempted By Federal Regulation Of l Nuclear Power _
Under the scheme of dual regulation governing the nuclear power industry, it is well established that exclusive jurisdiction over zoning matters lies with local governments.
Neither the Atomic Energy Act ("AEA") r.or NRC regulations preenpt local zoning. laws. Any argument to the contrary was laid to rest t in Pacific Gas & flectric Co. v. State Enerav Resources and ,
Develooggnt commission, 461 U.S. 190 (1983). In EacLfic cas, the Supreme Court found that the stat as were not preempted from ,
exercising their authority merely bet.ause the exercise of such authority might affect a nuclear ut'.lity. Rather, the Court found that under AEA
. . . Congress has preserved the dual regulation of nuclear-powered electricity generation: The Federal Government maintains complete control of the safety and 2/ LILCO also argues that the loss of the Bellmore recoption center is irrelevant tm decontamination issues because decontamination is not a required element of emergency planning.
LILCO Report at 4-5. This argument is patently frivolous. In ALAB-855, this Board held that monitoring requirements necessa ,*ily entail a capacity to decontaminate those found to be contaminated. Lena Island Liahtina Co.- (Snoreham Nuclear Power Station, Unit 1), ALAB-855, 24 NRC 792, 800 (1986).
- nuclear" aspects of energy generation; the States exercise their traditional authority over the need for additional generating capacity, the type of generating facilities to be licensed, Jand use, rate-making, and the like.
Id. at 211-12 (footnote omitted) (emphasis supplied).12/ Thus, <
it is plain that while nuclear power is heavily regulated by the ;
federal government, states continue to exercise their traditional authority in areas such as zoning.
Indeed, the NRC itself has recognized that local zoning lawn are not preampted by federal regulation of the nuclear industry
-- even in the area of offsite planning for nuclear emergencies.
The NRC said so explicitly in 1980 when it adopted its emargency I planning regulations. In responding to comments that operation of a plant could be negatively affected by the rule, the NRC .
stated l the Commission recognized thit there is a pensibility l that the operation of some reactors may be affected by this rule through inaction of State and local i governments or an inability to comply with these rules. '
The Commission believes that the potential restriction of plant operation by State and local officials is not significantly different in kind or effect from the means already available under existing law to prohibit ,
, reactor op3 rations, such as zonina and land-use laws, l
certification of public convenience and necessity, ,
- State financial and rate consideration (10 CFR
, i 50.33(f)), and Federal environmental laws.
i i 19/ The holding in Engific qaa clearly recognizes that in the 3
regulation of nuclear power, a state retains exclusive authority i in areas traditionally reserved to the states. In particular, j the Court held that a California statute imposing a moratorium on
, the certification of new nuclear plants was not preempted by the AFA because the California law was based upon assertion of l authority traditionally reserved to the Stated. Egg alar, Silkwood v. Kerr-Meggg Coro., 464 U.S. 238 (1983) (state court l award of punitive damages against tortfeasor responsible for radiation injury not preempted).
l t l
Final Rule on Emeraency Plan 0ing, 45 114. Rig. 55,404 (1980)
(emphasis supplied). In short, the NRC recognized zoning laws as instruments of legitimate local government authority which, ,
although having the potential to impact the licensing or operation of a nuclear power plant negatively, are not preempted under federal laws.
- 2. The Realism Rule Did Not Change The Law Regarding Preemotion On November 3, 1987, the NRC published a Final Rule which is often known as the "realism" rule. NRC Final Rule, 52 Z14. hag.
42,078 (Nov. 3, 1987) (codified at 10 CFR b 50.57 (c) (1)) . The "realism" rule, however, was not intended by the NRC to be unlimited in scope. LILCO's effort to use it to override local zoning laws extends the rule far beyond its intended purpose.11/
The realism rule addresses the situation in which state or local governments "decline to participate in emergency planning."
Under such circumstances the rule establishes a rebuttable p.esumption that such non-participating state or local authorities will use their "best efforts" and follow the utility plan in the event of a nuclear accident. 52 Eid. Eng. at 42,084. l 11/ Indeed, in recg nition of the jurisdiction of local >
authorities over zoning, LILCO has, until recently, urged that the New York State courts decide issues of zoning. In particular, LILCO has argued that with regard to zoning !
questions, "the Liernsing Board should defer to the New York i courts to resolve this issue of detailed and uniquely local law."
LILCO's Reply to Intervenors' Proposed Findings on Reception Centers (Sept. 21, 1387), at 72. LILCO has now done a complete F about face, apparently because it does not like the result ;
obtained in the State courts.
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In promulgating this rule, it is clear that the NRC did not :
intend to change the nature of the current system of dual regulation of the nuclear power industry, or to preempt those laws which it had previously recognized were not preempted.
Indeed, the commission stated that the rule was intended "to give effect to the Congress' 1980 compromise approach to emergency planning, not go beyond it." 52 Esd. Rag. at 42,o78.
Given this purpose, LILCO's reliance on the "realism" rule to override local zoning laws clearly lies beyond the scope of the rule. In particular, the Town of Hampstead's efforts to enforce its zoning laws and the judgment of the New York Supreme Court do not constitute a situatiori in which a local government has declined to "participate further in emergency planning." The Town has no role in LILCO's Plar, and has never been asked to ,
participate. Rather, the Town is simply attempting to enforce zoning la % whf.ch long predate the Shoreham plant and the designation of the Bellmore facility as a reception center.12/
LILCO, or the other hand, advocates the NRC's use of the realf ' f rule to assr,re the licensing of Shoreham by riding roughshod over I this legitimate area of state authority. Such a distortion of the rule cannot be counte anced.
12/ LILCO received its current special use permit for the Bellmore property in 1961. Egg Town.of Hemostead v. Lena Island Lichtina Co., Index No. 23779/87 (N.Y. Sup. Ct., June 20, 1988) slip op. At 3. The zoning laws and classifications at issue far predated LILCO's proposed use of the facilities as emergency plan reception centers. It is plain that the ordinances and classifications at issue addreas legitimate land use concerns and :
were not adopted to regulate nuclear power.
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- 3. LILCO cannot Meet the Prereaufsites of the Realism Rule l 1
LILCO not only distorts the "realism" rulet it also ignores the fact that there are certain prerequisites which must be met before the rule can be invoked. By its very terms, the realism rule can only be applied when the applicant can establish the l followings (1) The applicant's inability to comply with the requirements of paragraph (b) of this section is wholly or substantially the result of the non-participation of the state and/or local governments.
(ii) The applicant has made a anstaiaed aood faith effort to secure and retain the participation of the pertinent state and/or local governmental authorities, including the furnishing of copies of ,
its emergency plan.
10 CFR I 50.47(c) (1) (emphasis supplied).
LILCO has made no effort to show how it estisfies either one of these prerequisites -- most likely because it cannot. First, the circumstances leading to the Town of Hemostead decision do not involve a question of government "non-participation." The Town has not been asked to participate in emergency planning for choreham and has no role in LILCO's Plan. Moreover, the efforts of the Town of Hampstead to enforce its legitimate zoning laws and the court decision do not reflect "non-participation,"
especially where, as here, the Town's laws long predate LILCO's designation of the Bellmore property as a reception center, and where LILCO has made no effort to comply with those laws.
Second, LILCO cannot show that it has made a "sustained good faith effort" to secure and retain die participation of the Town of Hempstead. Again, the Town has no rols in LILCO's Plan and LILCO has never asked it to play such a role. Rather, LILCO has ignored the Town's laws, and certainly has not acted in good faith. The zoning violations inherent in using the Bellmore facility as a reception center have long been known by LILCo. On Noveuber 7, 1987, only one week after LILCO's designation of the Bellmore cility as a reception center, the Town informed the NRC that LILCO had not obtained the necessary zening approvals.
On January 6, 1987, the Town specifically informed LILCO that its proposed use of the Bellmore facility violated zoning laws, and on June 9, 1987, the Town passed a resolution to the same 1 effect. Yet, in the face of these notices, LILCO has not taken
< one sten to attempt to secure a zona.ig variance pursuant to i
established Town procedures. Instead, LILCO arrogantly assumed that by simply stating that it has identified a potential reception center, it can preempt local laws. LILeo's arrogance, however, has served only to place it in a position where it cannot satisfy the "good faith" prerequisite to the "realism" rule. By its very terms, the "realism" rule is unavailable to
. LI LCo.
- 4. There Is No Basis For Assuming That Article 2-B Would Be Invoked to Permit the Use of the Bellmore Property a
LILCO's arg"nont that in some future emergency Article 2-B would undoubtedly be invoked to permit the use of the Bellmore
- facility as a LILCO reception center is nothing more than speculation. Ett Report at 3-5. While some State or local 1
1
official might do so (assuming, arauendo, that LILCo's interpretation of Article 2-B is correct), it is just as likely that he or she would not do so, based on possible determinations that the site, located in a predominantly residential area, is unsuitable for the activities LILCO proposes. An official might also decide that there is a more suitable site for such activities elsewhere, or that there is no suitable location in the Town. In short, no matter how much LILCO speculates, there can be no assurance that the Bellmore property would be made available for LILCO's use in a radiological emergency at Shoreham.
Furthe rmore, it is not even clear that Article 2-B would apply to the use of the Bellmore property during a Shoreham emergency. For instance, under the law, a local official can declare a local state of emergency only where the disaster occurs within the limits of the county, city, town or village of which the official is the chief executive. Ett H . Y . Exec . Law 5 2 4.1.
Shoreham, however, is in Suffolk County, and a radiological emergency there might not extend to the Town of Hempstead, which is in Nassau County.
Likewise, while LILCO suggests that it will rely on the Nassau County Executive to suspend the Town's zoning laws (133 Report at 4), it does rot appear that Article 2-B gives him that i authority. The law provides that a local government may suspend any of "113 local laws, ordinance'; or regulations" which may '
hinder an emergency response within the territorial limits of
that government. N.Y. Exec. Law 5 24.1.f. The Town's zoning laws are not the laws of Nassau County, howevert nor do they flow from authority delegated by the County. Rather, that authority comes directly from the State. N.Y. Town Law $ $ 261-62. Thus, LILCO's reliance on the Nassau County Executive is misplaced.12/
In short, it does not appear that Article 2-B could even be invoked
- he Nassau County Executive to permit LILCO's proposal to use its L... **e facility as a reception conter. But. even if it could be, it is totally speculative as to whether it would be.
D. This Board May Recognize The Town of Hemostead Decision Without Reooanina the Record LILCO next attempts to reargue that the Governments acted improperly when they brought the Town of Hemoste3d decision to the Board's attention via ccansel's August 25 letter to the Board. In LILCO's opinion, the Governments were required to move to reopen the record before this Board could consider recent case law bearing on the issues before it. LILCO cites no aathority ,
'or this proposition, nor can it, for LILCo's argument makes no i sence.
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l ll/ In addition, LILCO's suggestion that a local official can unilaterally suspend local laws misrepresents the law. Such larc may be suspended only after ene of two conditions have been mett either (1) the local chief oxecutive has determined that the :
disaster is beyond the capacity of the local government to handle ,
and asks the State for assistance; or (2) the Governor has declared a "state disaster emergency." N.Y. Exec. Law li 24.1. f and 24.7. Thus, it is not as easy to suspend the laws as LILCO l suggests. :
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As an adjudicatory body, this Board has a right to know, and an obligation to consider, the law applicable to the issues before it. As Judge Rosenthal recognized at oral argument Now, for the life of me I can't understand why va are not obligated -- not merely entitled, but obligated to recognize that judicial decision without any kind of motion to reopen . . . .
Tr. 26. What LILCO it asking this Board to do, however, is to put on blinders, ignore the law -- indeed, ignere the existence of an injunction against LILCO -- and assume that LILCo can do that which it is enjoined from doing. The Board must reject this invitation to rest its decision on a fiction.
LILCO is entitled to argut (albeit incorrectly) that the Town of HemosLJad decision is not material to the Shoreham licensing proceeding, but that is a different matter. As the Governments' counsel stated at oral argument, this Board must recognize and consider the effect of the decision, without a motion to reopen, in the r-- way that it considers applicable Supreme Court or other va' .- case law without ths need for such a motion. Tr. 6 (Case). The situation here is much the same as the situation which existed when the legal authority issues were first litigated before the Licensing Board. The record on emergency plemning closed initially on August 28, 1984. After tnJt t!ae, but before the Licensing Board issued its partial initJal decision on emergency planning (LBP-85-12, 21 NRC 644 (1985)), a New York Sta'ce court issued a decision in the case of t
Cuomo v LILCO,1d/ which held that LILCO lacked the authority to conduct the governmental functions it sought to conduct pursuant to its Plan. No party moved to reopen the record, but all parties addressed the effect of the case in briefs submitted to the Licensing Board. Moreover, when the Licensing Board issued its emergency planning partial initial decision, it relied, among other things, on cuomo v. LILc0 without requiring a motion to reopen. 133 LBP-85-12, 21 NRC at 898-99. LILCO of fers no reason why the circumstances here require different treatment of applicabic case law.
LILCO also argues, in any event, that even if the Governments had moved to reopen the record, they would not be successful because, in LILCO's view, this Board's decision in ALAB-879,1E/ regarding the Seabrook proceecing, precludes such relief. In Seabrook, an intervenor moved co reopen the record based on a New Hampshire state court's order requiring the removal of polns on which the applicant's siren system was located. The Licensing Board denied the motion on the ground that the poles and sirens had not yet been removed and would no:
be unless the state court's ruling was affirmed on appeal, which was still pending. The Appeal Board affirmed. The Seabrook case is easily diatinguishable from the facts of this case, however.
13/ cupmo v. Lena Island Liahtina Co., Consolidated Index No.
84-4614 (N.Y. Sup. Ct., Feb. 20, 1985), aff'd 127 A.D.2d 626, 511 N.Y.S.2d 867 (1987), rev'd on other arounds, 71 N.Y.2d 349 (1988).
15/ Public Service Co. of New Hamoshire (Seabrook Station.
Units 1 and 2), ALAB-879, 26 NRC 410, 413-14 (1987).
First, LILCO has removed its decontamination trailer from the Bellmore property, and is now enjoined from bringing it back absent prior Town approval. Thus, unlike the situation in Seabrook where the sirens and poles remained in place, a key piece of equipment essential to the implementation of LILCO's Plan is missing from the Bellmore property.
Second, in the Seabrook case, the order requiring the removal of the sirens and poles, was stayed pending appeal.ll/ ,
Therefore, at least until the appeal was resolved, there were usable sirens available to alert the public. In the Town of Hemostead case, however, LILCO is enioined from gging its property or equipment for reception center purposes without prior Town approval. Furthermore, under New York law, the court's judgment is not stayed pending appeal, absent a specific court order granting such a stay. New York Civil Practice Law and Rules, 5 5519; Deacon's Bench. Inc u_v. Hoffman, 88 A.D.2d 734, 451 N.Y.S.2d 861 (3rd Dept. 2992). LILCO has not Loved for or obtained such a stay. Accordingly, unlike the situation in Seabrook, the Town of Hemostead judgment is immediately effective. It is thus plain that the Seabrook case of fers LILCO I
no support.
15/ The existence of the stay is revealed in the Seabrook applicant's response to the intervenor's motion to reopen.
Applicants' Response to Seacost Anti-Pollution League's Contention and Motion to Admit Late-Filed Contention, Reopen the Record on On-Site Emergency Pltnning, and Condition the Issuance of a License Up to 5% of Rated Power on Applicants' Compliance with 10 CFR 50.47 (b) (5) , Docket Nos. 50-443-OL-1, 50-444-OL-1 (Feb. 23, laa?), at 5.
LILCO also argues, in addition, that the Gove.rnments cannot satisfy the standards for reopening the record because LILCO can meet the applicable NRC licensing requirements without the Bellmore facility. Report at 7-8. To do so, however, LILCO is forced to make factual assertions that have not yet been subject to scrutiny by the other parties or by a Licensing Board. As this Board noted at the oral argument, the reception center plan (
which was litigated before the Licensing Board was predicated upon the use of thrce reception centers, with evacuees from each of the 19 EPZ subzones assumed to follow designated rout 1s to a designated reception center. Due to the limited roadway capacity on Long Island, the routing schame had to be validated by extensive analysis of the roadways. LILCO has not disclosed how it intends to make up for the loss of the B011more facility, but its Report suggests that it will rely on the remaining two reception centers. That necessarily means, however, that traffic intended for the Bellmore facility will reed ta be rerouted to the other two reception centers, w!,th a corresponding change in designated routes. Whether the limited roadway capacity leading to these two facilities can accommodata the added demand is a question that LILCO can only speculate on, as the necessary analyses have not been conducted or subjected to scrutiny, i The matter is further complicated by the fact that the Bellmore facility was intended to accommodate only one decontamination trailer. There is no indication that the other facilities can even accommodate that trailer, but even if they ,
could, the trailer can only be located at one of the remaining facilities. If it is LILCO's intention to direct all of the EPZ population originally assigned to Bellmore to the facility at which the trailer is relocated, then there will be no additional burden on decontamination capacity. If, however, LILCO intends to split the population between the two remaining facilities, as traffic considerations might dictate, there will be an excess demand on the decontamination facilities at one of the other reception centers.
LILCO offers son 6 reasons why the loss of the Bellmore facility would not hamper its ability to monitor and decontaminate the public (Report at 5, 8-10),12/ but those reasons rest on factual assertions which may or may not be valid when viewed in the context of only two reception centers rather than three. LILCO can only guess. Furthermora, the facts and solutions LILCO advances do not address the problems raised above.1E/
11/ It is ironic that one of LILCO's suggestions for addressing the loss of the Belltore facility is that it could seek an amendment to its special use permit uo that it could use the facility. To date, LILCO has refused to do so. In any event, whether the Town would grant the amendment is purely speculative.
11/ LILCO also argues that the loss of the Bellmore facility is immaterial because the appropriate planning basis is 20 percent of the EPZ population and the two remaining facilities can handle, in LILCO's estimation, 36 percent of the EPZ population.
LILCO ignores, however, that under the current Plan, the two remaining facilities do not service the entire EPZ. The populations of twc large subzones of the EPZ were aasigned to the Bellmore facility. The unanswered question is whether those populations can now get to, and than be serviced at, the two remaining reception centers.
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. F In short, whether or not LILCo's reception center scheme can work with only two reception centers rather than one (if indeed, that is what LILCO intends to do), is purely speculative. It is LILCo's burden, not the Governments', to demonstrate that the loss of the Bellmore facility will have no effect on the adequacy of its reception center scheme. LILCO has not met that burden.
E. The Court's Judamant In Final An underlying theme running throughout LILCo's Report is that since LILCO intends to contest the Court's decision through every means available to it, the nature of the decision is *still an open issue," and therefore is not worthy of consideration by this Board. See e.a., Report at 2. That argument is nonsense.
The Court has issued a final judgment which is fully enforceable at this time, as LILCo has neither sought nor obtained a stay.
Until such time as the judgment is modified or overturned, it is the law of the case.
Accordingly, this Board should not only take the Town of Hampstead decision into account in deciding the issues before it, but should also not delay its decision pending further State court proceedings. If there are further developments in the case, the parties are sure to keep the Board apprised of them.
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o III. Conclusion For the foregoing reasons, LILCO's Report should be rejected, or in the alte: native, the relief it seeks should be denied.
Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 bfwrence C. Lanpher /
Christopher M. McMurray David T. Case
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KIRKPATRICK & LOCKHART ltl00 M Street, N.W.
South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County
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L
Fabian' G. Palgpino/ /
Richard J. Zannleder Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the Stats of New York Stephen K. Lathan
~ %'
Twomey, Latham & Shea /
P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton November 8. (9ES Ta NU/10 M151 UNITED STATES OF AMERICA 5" K f/ .d' NUCLEAR REGULATORY COMMISSION $ly"'##
Atomic Safotv and Licensina Anneal Board ;
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of GOVERNMENTS' OPPOSITION TO LILCO'S REPOP.T TO THE APPEAL BOARD ON THE PROGRESS AND EFFECT OF THE TOWN OF HEMPSTEAD CASE have been served on the following this 8th day of November 1988 by U.S. mail, first-class, except as otherwise noted. ,
l Thomas S. Moore, Chairman
- Alan S. Rosenthal*
Atomic Safety and Licensing Atomic Safety and Licensing l Appeal Board Appeal Board i U.S. Nuclear Regulatory Comm. U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 ,
Howard A. Wilber* Edwin J. Reis, Esq.** i l Atomic Safety and Licensing U.S. Nuclear Regulatory Commission l Appeal Board Office of General Counsel ,
U.S. Nuclear Regulatory Comm. Washington, D.C. 20555 i Washington, D.C. 20555 I;
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l l
l
t e
James P. Gleason, Chairman Mr. Fraderi" J. Shon '
Atomic Safety and Licensing Bd. Atomic Safety and Licensing Board 513 Gilmoure Drive U.S. Nuclear Regulatory Commission ,
Silver Spring, Maryland 20901 Washington, D.C. 20555 Dr. Jerry R. Kline Anthony F. Earley, Jr. , Esq. l Atomic Safety and Licensing Bd. General Counsel i U.S. Nuclear Regulatory Comm. Long Island Lighting Company Washington, D.C. 20555 175 East Old Coun'.ry Road William R. Cumming, Esq.*1 !
Spence W. Perry, Esq. James P. Gleason, Chairman '
Office of General Counsel Atomic Safety and Licensing Board Federal Emergency Managensat U.S. Nuclear Regulatory Commission :
Agency Washington, D.C. 20555 .
500 0 Street, S.W., Room 84 0 :
Washington, D.C. 20472 Elisabeth Taibbi, clerk W. Taylor Reveley, III, Esq.**
Suffolk County Legislature Hunton & Williams Suffolk County Legislature P.O. Box 1535 i Office Building 707 East Main Street ,
Veterans Memorial Highway Richmond, Virginia 33212 Hauppauge, New York 11788 l l
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 Ms. Nora Bredes Docketing and Service Section !
Executive Director Office of the Secretary l Shoreham Opponents coalition U.S. Nuclear Regulatory Commission i 195 East Main Street Washington, D.C. 20555 ;
Smithtown, New York 11787 Alfred L. Hardelli, Esq. Hon. Patrick G. Halpin New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building j Room 3-116 Veterans Memorial Highway i New York, New York 10271 Hauppauge, New York 11788 l l
MMB Technical Associates Dr. Monroe Schneider i 1723 Hamilton Avenue North Shore Committee !
Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 j
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a t
E. Thomas Boyle, Esq. Fabirn G. Palomino, Esq.**
Suffolk County Attorney Richard J. Zahnleuter, Esq.
Blog. 158 North County Complex Special Counsel to the Governor Veterans Memorial Highway Executive Chamber, Rm. 229 Hauppauge, New York 11788 State Capitol Albany, N.',w York 12224 Mr. Jay Dunkleburger Mr. Stuart Diamond New York State Energy Office Business / Financial Agency Building 2 NEW YORK TIMES Empire State Plaza 229 W. 43rd Street Albany, New York 12223 New York, New York 10036 Mr. Philip McIntire David A. Brownlee, Esq.
Federal Emergency Management Kirkpatrick & Lockhart Agency 1500 Oliver Building 26 Federal Plaza Pittsburgh, Pennsylvania 15222 New York, New York 10278 Adjudisatory File Atomic Safety and Licensing Board Panel Docket U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Chfistoph4r M.'McMurrav KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby > 9th Floor .
Washingten, D.C. 20036
- Hand Delivered.
- Via Telecopy.
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