ML20206P892
| ML20206P892 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/30/1986 |
| From: | Irwin D HARMON & WEISS |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#386-803 OL-3, NUDOCS 8607020270 | |
| Download: ML20206P892 (20) | |
Text
4 LILCO, Jun3 30,1986
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION.
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(
Before the Commission k -1 All:3g In the Matter of
)
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)
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LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning Proceeding)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S REPLY TO UNAUTHORIZED PLEADING FILED ON JUNE 23 BY SUFFOLK COUNTY LILCO hereby replies to the unauthorized pleading labeled " Statement of Suffolk County Executive Peter F. Cohalan, June 23, 1986," filed by Suffolk County counsel under cover of a letter from Deputy County Executive Frank Jones.1 I. General Summary and Background Mr. Cohalan's " Statement," presumably reflecting his most current mood, in-volves two types of issues: first, a miscellany of general Shoreham-related arguments and accusations of varying degrees of relevance; and second, an emergency planning apologia which includes but is not limited to a discussion of his understanding of the
" realism" argument. This response deals principally with Mr. Cohalan's emergency planning testament; collateral issues worthy of reply are discussed in passing.2/
1/
LILCO has filed with this Reply a motion to strike the June 23 filing by Suffolk County since it plainly ignores the Commission's injunction not to submit further briefs on either the " realism" or " immateriality" aspects of legal authority for emergency planning at Shoreham. CLI-86-11 (June 6,1986) at 7. The Commission need consider this Reply only if it does not grant LILCO's motion to strike.
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Various of the allegations attributed to Mr. Cohalan in his " Statement" are almost pure political rhetoric to which little or no reply is useful. Two which need re-(footnote continued) 860702027o 860630 PDR ADOCK 0500 2
G 3 SO 3
s Mr. Cohalan's " Statement" struggles to garb Suffolk County's indefensible posi-l tion and destructive conduct with respect to emergency planning at Shoreham in the mantle of protection of the County's citizens. It proceeds from three premises, all of them fundamentally incorrect: that' adequate emergency planning is inherently impos-sible or infeasible for Shoreham.even with total cooperation of all concerned; that LILCO's plan i.s a fundamentally deficient approach to emergency planning, regardless of background factors; and that Suffolk County's method of advancing its interests is consistent with normal usage and federal law.
Suffolk County's first premise - that adequate emergency planning is impossible in fact for the Shoreham plant - has underlain Suffolk County's subsequent with-holding of normally available resources from emergency planning at Shoreham and its attempts to frustrate LILCO's compensatory efforts. It has been definitively proven (footnote continued) sponse involve his characterizations of the February 13 exercise and of the resignation of FEMA Region 2 director Frank Petrone, since they bear on the merits of Shoreham.
Mr. Cohalan's " Statement" refers to the February 13, 1986 offsite emergency planning exercise as the " theatre of the absurd" (Statement at 1-2).
That phrase more aptly applies to Suffolk County's own macabre and unsuccessful attempt to criminalize par-ticipation in it through enactment of an unconstitutional local law. See LILCO v.
Suffolk County,628 F.Supp. 654 (E.D.N.Y.1986). The exercise itself involved as large-scale a mobilization of emergency response personnel as had ever been effectad for a j
FEMA offsite exercise, and its preliminary results were reported by FEMA on April 17, 1986. The resignation of Mr. Petrone at the time of that report's release (Statement at
- 2) involved a philosophical dispute between him and FEMA management. Under Mr.
Petrone's view, an offsite emergency plan which does not have the cooperation and participation of state and local governments is inherently inadequate, regardless of its other attributes, in his view there is no way in which any plan for Shoreham could be adequate without New York's and Suffolk County's active cooperation and participation, thus his statement that LILCO's Shoreham plan does not provide reasonable assurance of protection is a normative one, not an expert opinion on the merits. FEMA manage-ment, operating under the NRC-FEMA Memorandum of Understanding, did not agree with Mr. Petrone. It recognized that the ultimate decision lay with the NRC, did not feel it proper to preclude the possibility of a finding of reasonable assurance by the NRC, and apparently felt that the merits should be permitted to be examined.
false. After 84 days of emergency planning proceedings before this Commission's Atomic Safety and Licensing Board, Suffolk County, joined by New York State, has failed in its attempt to demonstrate the infeasibility of emergency planning for Shoreham. The Licensing Board found explicitly and in detail on the facts (its published decisions total about 300 pages exclusive of appendices) that from the standpoints of geography, demography, meteorology, population, roadway capacity and other relevant background factors, there is nothing that makes emergency planning for a nuclear power plant located at Shoreham inherently impossible or inadequate. LBP-85-12, 21 NRC 644 (1985); LBP-85-31, 22 NRC 410, 427 (1985). In short, there are no underlying factors that significantly differentiate the potential for emergency planning for Shoreham from that for other nuclear power plants licensed by this Commission.E The Appeal Board has accepted this conclusion. Mr. Cohalan may, and apparently does, dis-pute the requirements of the Commission's regulations; he cannot dispute that an incredibly long, grueling and costly proceeding has found against his position on the merits of this very significant issue.
Mr. Cohalan's second false premise is that whatever the basic feasibility of emergency planning for Shoreham, LILCO's emergency plan is unacceptable on the 3/
A perfect example is Mr. Cohalan's recitation of the Suffolk County party line that indefinite, prolonged " gridlock" would characterize any evacuation from Shoreham (Statement at 6). This argument, which was advanced to the Licensing Board in over three weeks of litigation of traffic issues, is simply wrong. LILCO's analyses showed, and the Licensing Board accepted, that evacuation times from the 10 mile EPZ around Shoreham under controlled circumstances would be on the order of 4.5 to 5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br />; and that even without any traffic control strategy in place, evacuation could be effected in about 6.5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br />. Even the modeling results obtained by Suffolk County's traffic model-ing expert were consistent with these findings when analytical assumptions were held consistent. It is worth noting that these evacuation times are roughly comparable to those for numerous other plants around that country and significantly - two hours or more - shorter than those for the Indian Point plant, less than 50 miles away in Westchester County.
o facts under this Commission's regulations. The same 84 days of proceedings before this Commission's Licensing Board, however, have established that LILCO's plan is based on sound planning concepts; that it makes adequate provision for the training, equipping and organization of the Local Emergency Response Organization (LERO) developed by LILCO, over 2100 persons strong..t6 implement the plan; and that in all other major re-spects the plan is adequate.N The only substantial difficulty found by the Licensing Board involves LILCO's legal authority to implement its plan given the refusal of state and local governments to cooperate in advance - not the sufficiency in fact of the plan or of LERO, or the unavoidable reality of governmental participation in actual emer-gency response. The Appeal Board has sustained the Licensing Board's factual findings in virtually all respects.E The third false premise is that Suffolk County's and New York State's use of their y
The Licensing Board found LILCO's plan defic!snt on two factual issues which LILCO has appealed to the Appeal Board -- the absence of a Shoreham-specific New York State plan, and the possibility of conflicts faced by LERO workers between their loyalties to LILCO and their obligations to the general public in connection with their emergency duties. The Appeal Board failed to review these issues in either of its deci-sions on emergency planning at Shoreham, ALAB-818 or ALAB-832, and thus they are now before this Commission on LILCO's still pending petition, supported by the Staff, for review of ALAB-832. LILCO believes that both of these findings are deficiencies in name only given the resources available to LERO and the reality that state and local governments have not only the legal obligation to respond to emergencies but adequate knowledge in fact to mesh their resources with those of LILCO.
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On an appeal where intervenors challenged virtually every finding reached by the Licensing Board, the Appeal Board in ALAB-832 disturbed the Licensing Board's de-I cision on only four matters, remanding for more evidence: the admissibility of polls of volunteer firemen as indicators of the possibility of role conflict among school I
teachers; arrangements with hospitals; possible minor modifications (on the order of a mile or less)in EPZ boundaries; and a variety of subsidiary questions on the Nassau Col-l iseum. As noted above, LILCO's petition for Commission review of these issues is pend-ing. While each of these issues involves sufficiently significant error to warrant Com-mission review, none of them vitiates either the basic feasibility of emergency planning at Shoreham or the ultimate soundness of LILCO's plan.
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governmental powers to attempt to suppress LILCO's efforts to compensate for govern-mental default at Shoreham is either normal or acceptable behavior, or reflective of their actual response to an emergency. Indeed, the only unique factor about emergency planning at Shoreham, as compared with any other reactor licensed by this Commission, is the behavior of the state and local governments presumptively entrusted by this Commission's regulations with responsibility for emergency planning. Those govern-ments, af ter over a decade of cooperation with LILCO, radically shif ted ground and have withdrawn from Shoreham the same types of support that have customarily been given to other nuclear power plants in New York and elsewhere. Those governments have waged obdurate, though unsuccessful, efforts to show that emergency planning at Shoreham is impossible or that LILCO's plan is fundamentally deficient. They have en-gaged in continuing attempts to discourage, harass, and even (in the case of Suffolk County) criminally prosecute anyone acting to fill in for their default. Their sole pub-licly mentionable rationale is that emergency planning cannot be accomplished with ad-equate safety at Shoreham. However, this is a matter which, on the merits, involves radiological health-and-safety judgments that are ultimately within this Commision's purview, not theirs;E! and their arguments, af ter exhaustive examination in this g/
This conclusion has been upheld by both of the federal courts which have heard the issue in connection with Shoreham. In Committee for an Orderly Energy Policy v.
Suffolk County, 604 F.Supp.1084 (E.D.N.Y.1985), the District Court held that federal law did not require Suffolk County to participate in advance emergency planning, and sustained its right to attempt to show before the NRC both that emergency planning for Shoreham was inherently impossible, and that LILCO's plan was deficient. Howev-er, the Court also reaffirmed squarely the primacy of the NRC on health and safety is-sues, agreed that emergency planning involved such issues, and held that at the end of the NRC's proceedings Suffolk County's views on emergency planning would be "aca-demic" - i&, that Suffolk County should be prepared to abide by the NRC's findings on the merits. 604 F.Supp. at 1095. Similarly, just last winter, when Suffolk County en-acted a local law making participation in a federally required exercise of LILCO's (footnote continued)
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Commission's lengthy hearing process, have been found to be meritless.
II. Realism and Mr. Cohalan's " Statement" Mr. Cohalan makes various related arguments about the realism argument: that it would revert emergency plannin'g to an entirely ad hoc process; that affected state and local governments could not participate effectively at the moment of truth because of their ignorance; that the realism argument requires functionally an intimate part-nership between the utility and affected governments; and that LILCO is not a suffi-ciently credible organization to function as an emergency response partner. Each of these arguments is demonstrably false.
Mr. Cohalan's first claim - that the realism argument calls for a return to pre-TMI days (Statement at 5) - is nonsense.
The difference between today and pre-TMI is that today there are new, sweeping NRC regulations and a comprehensive utility emergency plan designed to comply with those regulations. Millions of dollars of equipment and buildings are designated for use in that plan, dozens of organizations are committed to respond in certain ways, and over two thousand LERO volunteers have each undergone many days of training and drills. The fact that most of this investment (footnote continued) emergency plan a criminal offense in Suffolk County, the federal district court ruled that the local law wrongly arrogated a responsibility to enforce nuclear safety stan-dards assigned exclusively to the federal government under the Atomic Energy Act of 1954. LILCO v. Suffolk County,628 F.Supp. 654 (E.D.N.Y.1986). The Court found that despite any cloudiness in the history of post-TMI congressional emergency planning leg-islation, "it is manifestly clear... that Congress by no means intended to allow local governments to frustrate or impede the NRC's ability to evaluate a utility's (emergency plan), either passively through non-acquiesence or actively...." 628 F.Supp. at 664.
The Court accordingly struck down the local law under the Supremacy Clause of the federal Constitution.
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in time and money was made by LILCO, rather than a government, does not return us to pre-TMI days.II Under the NRC regulations created since TMI, the key to good emergency plans is flexibility; that is why planning is required for a " spectrum" of accidents rather than a single, worst-case event. In LILCO's case the need for flexibility is greater because the plan needs to be supple enough to accommodate any level of government participa-tion from tacit approval to full cooperation. The lack of pre-emergency government cooperation obviously does not preclude post-emergency cooperation; it merely means that the utility emergency plan must be designed to accommodate the additional uncer-tainty. The LILCO plan has been designed for this purpose from the very beginning.
What Mr. Cohalan apparently wishes to imply is that he would personally return Long Island to pre-TMI days by refusing to use any LILCO-supplied resources.
He implies this rather than states it because he knows it is not true. He implies it by saying that he will not " implement the LILCO plan."
In the context of this case Mr. Cohalan's insistence that he will not " implement the LILCO plan" is utterly meaningless. Whatever he means by this phrase, it is n_ot that he, or anyone else, would refuse to use available resources in an emergency. As this Commission has noted previously in this case, it is inconceivable that in the event of an actual emergency at a licensed plant, responsible governments directed by offi-cials responsible to the citizenry which elected them would withhold aid from that 2/
Indeed, the fact that Shoreham's emergency plan is directed, staffed and equipped by one organization, which is also mtimately familiar with the Shoreham re-actor, gives it a coherence ad degree of expertise not usually attainable by more typi-cal, fragmented governmen~
omergency response organizations. Partly for this rea-son LERO is generally considered to be one of the best trained, best equipped, most highly motivated emergency response organizations in the country.
. j citizenry merely because of disagreement with the plant or the company that owns it.II So what exactly does Mr. Cohalan's claim that he would not " implement the j
LILCO plan" really mean? It means nothing. Imagine that a worst-case accident were i
j to happen and Mr. Cohalan were !d receive word of it along with recommendations and I
a request for cooperation from LILCO. No rational person believes that Mr. Cohalan would refuse cooperation outright. He would decline LILCO's recommendations and re-quest only if he knew he had in hand a better way to aid the public. And if that were t
l the case, it would be fine if he declined LILCO's help, since LILCO's plan, on the facts, I
i has been shown to be sufficient.
Mr. Cohalan attempts to get around this by a second argument - that he and other government officials would be too ignorant to respond effectively. He claims that the County is not familiar with the LILCO plan. This is demonstrably untrue.
l Suffolk County p-w 22, and New York State 7, controlled copies of the Shoreham emergency plan. The record in this case shows that Suffolk County personnel have be-come intimately familiar with the LILCO plan. During the course of the nine months of public hearings County police officers testified at great length and in great detail about the plan. Police in helicopters and on the ground complemented the more than 20 rep-l resentatives from Suffolk County and New York State who observed the FEMA graded i
i exercise in February of this year. County legislators know enough about LILCO's plan 1
3/
The Commission noted in its January 30, 1986 Memorandum and Order in this docket: "The County appears to assert (citation omitted] that in the event of a ra-diological accident at Shoreham, county personnel could not make lawful use of the LILCO plan, even if this under the circumstances was the best way to protect the safe-ty of the citizens of Suffolk County. We find this assertion to be too preposterous an j
abrogation of the County's obligations to its citizens to be taken seriously." (Id. at 6, note 1).
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to have gone to Nassau County to lobby against the use of the Nassau Coliseum.E If County personnel were as totally untutored in the details of the local plan as Mr.
Cohalan suggests, it is hard to see why the County has argued so vigorously that the tes-timony of its witnesses should be given more weight than that of anyone else. More-over, there is no reason why County officials could not be briefed by LERO about the plan and about LERO resources at the time of an accident; this is exactly what went on between LERO and the " simulated" County officials during the February exercise.
Mr. Cohalan argues also that there is no LILCO-County partnership (Statement at 6), confusing what is claimed before an emergency with what happens during an emergency. Under the realism argument, the partnership" - to the extent one is needed - emerges in the real emergency, as long as there exists (as is the case here) an adequate planning and logistic base beforehand. There is ample evidence of this on the record of this case, a record that Mr. Cohalan chooses to ignore. In a real emergency a spirit of cooperativeness, called the " emergency consensus " tends to emerge and peo-pie uniformly, if temporarily, forget their pre-emergency differences and cooperate in the interest of protecting the public. That is what would happen in an emergency at Shoreham.
Fourth, Mr. Cohalan claims that Suffolk County would never cooperate with LILCO since LILCO's credibility as an organization is somehow fatally sullied (State-ment at 6-7). This is perhaps the desired goal of the daily barrage of criticism and ha-rassment being waged by various organs and officers of the Suffolk County government 9/~
An additional example of action requiring and displaying knowledge of LILCO's plan is that outside counsel for the County appeared at a meeting of Suffolk County school bus drivers this past Monday, June 23,1986, to attempt to persuade them against continued participation in emergency planning for Shoreham.
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against LILCO. However, this argument was rejected by both the Licensing and Appeal Boards when Suffolk County raised it. Nor has it proven true in reality, as is illustrated by the fact that there are numerous areas, not involving Shoreham, where LILCO and Suffolk County cooperate daily. Hurricane Gloria, mentioned in Mr. Cohalan's state-ment, provides a perfect example' of the Kafkaesque juxtaposition of cooperation in fact and hyperbolic criticism against LILCO which gives the lie to his assertion.
Hurricane Gloria was unquestionably the worst storm to hit Long Island in half a century; its chief impact was felt in the mid-island region and eastward, and directly across Long Island Sound in eastern Connecticut, Damage in both areas was extensive, though even worse in Long Island, which received the brunt of the storm, than in Con-necticut. During the cleanup from the storm's devastation LILCO crews and Suffolk County personnel worked side by side; and with that cooperation service was restored to more people on Long Island than across the Sound in Connecticut, and in the same time frame. In press and political commentary, the workers in Connecticut received nothing but praise (well deserved); on Long Island, LILCO received precious little but excoriation. Yet six months later, LILCO is engaged with Suffolk County and New York State personnel in coordinated, detailed planning for future hurricanes.
III. Mr. Cohalan and Article 2-B Mr. Cohalan, at page 7, disputes LILCO's claim that state law places obligations on him to act in an emergency to protect the public. His claim is either a confession of inconceivable ignorance about the requirements of state law or yet another sally at the interesting but irrelevant proposition that he will not commit now to implementing any plan sponsored by LILCO in any predetermined fashion. In any event, it is well to re-call various of the obligations placed on both the County Executive and the Governor by Article 2-B of New York State's Executive Law.
Mr. Cohalan's claim is that he is forbidden by law to implement the LILCO plan.
This is nonsense. It is clear that the County Executive, not the Legislature, has the au-thority to manage an emergency response in an actual emergency. This was established last summer in Prospect v. Cohalan, 490 N.Y.S.2d 795, aff'd, 482 N.E.2d 1209 (N.Y.
1985).
What, then, is the Executive's duty in time of emergency? The answer is found in New York Executive Law Article 2-B.
His actions, whatever they are, must be guided by the " policy of the state," as set forth in N.Y. Exec. Law S 20. Among other things, the " policy of the state" is that:
local chief executives take an active and personal role in the... !mplementation of disaster preparedness programs and be vested with authority and responsibility in order to in-sure the success of such programs state and local... emergency response functions be coordi-nated in order to bring the fullest protection and benefit to the people state and local plans, organizational arrangements, and re-sponse capability required to execute the provisions of this article shall at all times be the most effective that current circumstances and existing resources allow.
N.Y. Exec. Law S 20.1.b c.e. Moreover, the County Executive can suspend local laws if they interfere with public protection: "Notwithstanding any inconsistent provision of law," once a state of emergency has been declared the County Executive may "promul-gate local emergency orders to protect life and property or to bring the emergency sit-uation under control."
N.Y. Exec. Law 5 24.1. Such orders may provide for, among other things, "the suspension... of any of its local laws, ordinances or regulations...
which may prevent, hinder, or delay necessary action in coping with a disaster or re-covery therefrom." (He may do this whenever he has requested the Governor to pro-vide assistance or when the Governor has declared a state disaster emergency.) Also,
l Mr. Cohalan is required by law to "use any and all facilities, equipment, supplies, per-sonnel and other resources of his political subdivision in such manner as may be neces' sary or appropriate to cope with the disaster or any emergency resulting therefrom."
N.Y. Exec. Law S 25.1. In short, Mr. Cohalan's claim that his hands are tied by local law is totally untrue with respect.t6 what would happen in a real emergency.
As does the County government, the State has ample authority to make the real-Ism argument work. For example, the Governor may " temporarily suspend specific pro-visions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such pro-visions would prevent, hinder, or delay action necessary to cope with the disaster."
N.Y. Exec. Law S 29-a.1.
Finally, the State Disaster Preparedness Commission is required, upon the occurrence of a radiological accident, to "promptly provide appro-priate and available radioactivity monitoring data to any chief executive who requests it." N.Y. Exec. Law S 29-c.1.
These provisions of New York State law give the lie to Mr. Cohalan's claim that purely legal restraints would prevent him from using LILCO-supplied resources at the time of emergency.
IV. Mr. Cohalan and Pre-Emption Mr. Cohalan's " Statement"is the clearest exposition yet of what LILCO has been saying all along Suffolk County was attempting to do, and which it has stoutly dodged and enled: asserting the pre-emptive right of Suffolk County to veto the operation of a completed nuclear power plant on the health-and-safety ground of emergency plan-ning. The 1982 studies cited by Mr. Cohalan for the County's change of position on emergency planning grounds provided the basis for their testimony in this Commission's
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emergency planning proceedings; but that testimony has been rejected. His criticisms of LILCO's credibility similarly reclamor an issue raised by Suffolk County in the licens-ing proceedings and rejected by the Hearing Board.
His corollary argument - that he will not commit to implementing the specific plan developed by LILCO to fill Stiffolk County's default - is the most extreme argu-ment of all, given that the Licensing and Appeal Boards have found emergency planning to be conceptually feasible and LILCO's plan to embody, on the whole, a sufficient ap-proach to it. This is the issue now before the Commission on the " realism" argument.
Suffolk County has the right to disagree with LILCO on the merits of emergency planning to protect the public's health and safety, and to press its views forcefully be-
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fore the NRC and the federal courts. However, Mr. Cohalan's assertion of the County's right to prevent ultimate licensure of a plant, even if its views are rejected and this Commission deems emergency planning to be adequately accounted for on the merits by LILCO's plan, amounts to the argument that Suffolk County has the right to override the Nuclear Regulatory Commission on an issue of radiological health and safety. That, as two federal courts have already held in this very case,N s what Suffolk County i
cannot do.
V. The Realism Argument and 10 CFR Section 50.47(c)(1)
The effort in Mr. Cohalan's " Statement" to discredit the realism argument at Shoreham requires examination in perspective. At bottom, the realism argument is merely an application to the facts of Shoreham of 10 CFR S 50.47(c)(1), which permits 10/
Committee for an Orderly Energy Policy v. Suffolk County, 604 F.Supp.1084, 1984-95 (E.D.N.Y.1985); LILCO v. Suf folk County,628 F.Supp. 654,664 (E.D.N.Y.1986).
licensure under specified conditions notwithstanding departures from the nominal pro-visions of S 50.47(b) (e.g., lack of cooperation from state and local governments).
This can easily be illustrated by a summary review of the posture of the record of issues litigated before this Commission. That review reveals the following:
1.
Shoreham is complete.
2.
Shoreham meets all conventional NRC safety requirements.
3.
Shoreham has operated successfully at up to 5% power.
4.
There are no intrinsic factors making adequate emergency planning at Shoreham impossible.
5.
Shoreham has an excellent emergency plan.
6.
Shoreham has an emergency planning organization, LERO, which is capable on the facts of implementing that plan.
7.
Suffolk County has, and recognizes, a legal obligation to response in the event of an emergency at Shoreham.
8.
So does New York State.
9.
Shoreham's plan is intended to accommodate governmental participation in disaster response on any level and with any degree of preplanning.
LILCO's realism argument merely combines the proven sufficiency of LILCO's adequate plan and resources with the acknowledged intent of Suffolk County and New York State to respond in the event of an actual emergency.
To the extent that this construct involves departures from the norm of govern-mental sponsorship of emergency planning and response presumed in S 50.47(b) of the Commission's regulations, the Shoreham circumstances de, scribed above fit within its companion provision, S 50.47(c)(1). This section allows the Commisssion to issue a full power license to a plant even where one or more of the provisions of 5 50.47(b) are not met, if the applicant demonstrates that one or more of the following conditions obtain:
1.
the departures from 5 50.47(b) are not significant for the plant in question; or
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adequate iterim compensating measures have been taken or will be taken promptly; or 3.
there are other compelling reasons to permit plant op-eration.
LILCO's institution of its own~ emergency plan, development of LERO, and dem-onstration of LERO's potency toge"ther demonstrate an ideal application of the provi-sion of S 50.47(c)(1), as is illustrated sumtnarily below.
Significance for the plant in question: Because of LILCO's compensatory ac-tions, embodied in the entirety of its plan and the LERO organization, the departures from 5 50.47(b) necessitated by governmental default are not, on the facts, significant for Shoreham.
Adequacy of interim compensating measures: While necessary duration of those compensating measures taken by LILCO is uncertain, there is little doubt of their ade-l quacy in fact for customary licensing purposes.UI Other compelling reasons to permit plant operation: There exist at Shoreham two of the most compelling of policy reasons, one specific to Shoreham, the other of national scope, to permit plant operation under present circumstances. Loca!!y, the need for Shoreham's capacity to meet load growth on Long Island is by now pressing (see LILCO's Response to Governor Cuomo's Letter of May 15,1986 (June 17,1986) at 6).
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This is a higher standard of attainment than that which was required by the Commission for Indian Point in the special emergency planning proceeding, where the Commission contemplated, as it m uitted continuation cf plant operation, that the level of emergency preparednen under the interim compensating plan proposed there might be somewhat lower tha : would be minimally accertable for a permanent ar-rangement. In adopting 10 C.!~.R. S 50.47 "the Commissian intended that the lack of a particular plan was to be balt.nced against other factors, and that interim operation should be allowed where protection of the public, while not optimum, was adequate for 1
a limited period of time." Consolidated EdLson Co. of New York (Indian Point Unit Nos.
l 2 & 3), CLI-83-16,17 NRC 1006,1011 (1983).
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As a matter of national policy the current Shoreham situation poses the question of whether the Commission will permit state and local governments to use NRC regula-tions as an artifice to prevent the operation of otherwise licensable power plants. If the Commission permits state and local governments to doom the operability of nuclear power plants purely and simply by refusing to commit to participating in olisite emer-gency planning, it will have accomplished two results. First, it will have ceded to states and localities the ultimate power over radiological s'afety - a matter committed exclusively to it by Congress.EI Second, it will have allowed itself to have become the unwitting accessory to what is in effect a condemnation or taking by state and local governments, effected without proper process. If state and local governments do not want a power plant to enter or continue operation, they can certainly act within their own power, using their own processes and paying just compnesation as required by 1
those processes, to achieve that goal if their state substantive law permits it. This Commission need not become embroiled in that state-law process, which it inevitably will if it withholds or revokes licenses purely because of the refusal of state and local governments to cooperate with an otherwise licensable plant.N Section 50.47(c)(1) requires only that any one of its three criteria be met. The' facts of emergency preparedness at Shoreham, coupled with the reality of governmen-tal response in an actual emergency, satisfy all three. The realism argument, which is simply an application of S 50.47(c)(1), indicates that the Commission should issue a full power lienese to Shoreham.
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The Commission has always considered offsite emergency planning as the last line of defense against the risks associated with major accidents; thus it is squarely within the Commission's health-and-safety jurisdiction.
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This would occur as state and local governments sought in their courts to use the fact of Commission dental of a license to resist a utility's condemnation demands, just as they are now using their own refusal to commit to cooperating as a basis for arguing that the Commission should not issue a license.
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Conclusion For the reasons stated above, the Commission should not allow Mr. Cohalan's current refusal to commit to implementing the specific details of LILCO's ofIsite emer-gency plan for Shoreham to be dispositive of the realism argument, and should autho-rize the issuance of a full power license based on it.
Respectfully submitted,
)
e W. Taylor Reveley,III /
Donald P. Irwin James N. Christman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: June 30,1986
l LILCO, June 30,1986
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CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S REPLY TO UNAUTHORIZED PLEADING FILED ON JUNE 23 BY SUFFOLK COUNTY and LILCO'S MOTION TO STRIKE UNAUTHORIZED PLEADING FILED ON JUNE 23 BY SUFFOLK COUNTY were served this date upon the following by Federal Express as indicated by an asterisk, or by first-class mail, postage prepaid.
Nunzio J. Palladino, Chairman
- Gary J. Edles, Esq.
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 1717 H Street, N.W.
Appeal Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Commissioner Thomas M. Roberts
- Fif th Floor (North Tower)
U.S. Nuclear Regulatory Commission East-West Towers 1717 H Street, N.W.
4350 East-West Highway Washington, DC 20555 Bethesda, MD 20814 Commissioner James K. Asselstine
- Dr. Howard A. Wilber U.S. Nuclear Regulatory Commisison Atomic Safety and Licensing 1717 H Street, N.W.
Appeal Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Commissioner Frederick M. Bernthal
- Fif th Floor (North Tower)
U.S. Nuclear Regulatory Commission East-West Towers 1717 H Street, N.W.
4350 East-West Highway Washington, DC 20555 Bethesda, MD 20814 Commissioner Lando W. Zech, Jr.
- Morton B. Margulies, U.S. Nuclear Regulatory Commission Chairman 1717 H Street, N.W.
Atomic Safety and Licensing Washington, DC 20555 Board U.S. Nuclear Regulatory Alan S. Rosenthal, Esq.,
Commission Chairman East-West Towers, Rm. 407 Atomic Safety and Licensing 4350 East-West Hwy.
Appeal Board Bethesda, MD 20814 U.S. Nuclear Regulatory Commission Fif th Floor (North Tower)
East-West Towers 4350 East-West Highway Bethesda, MD 20814
y Dr. Jerry R. Kline Fabian G. Palomino, Esq.
- Atomic Safety and Licensing Special Counsel to the Board Governor U.S. Nuclear Regulatory Executive Chamber Commission Room 229 East-West Towers, Rm. 427 State Capitol 4350 East-West Hwy.
Albany, New York 12224 Bethesda, MD 20814 Mary Gundrum, Esq.
Mr. Frederick J. Shon Assistant Attorney General Atomic Safety and Licensing 2 World Trade Center Board Room 4614 U.S. Nuclear Regulatory New York, New York 10047 Commission East-West Towers, Rm. 430 Spence W. Perry, Esq.
- 4350 East-West Hwy.
General Counsel Bethesda, MD 20814 Federal Emergency Management Agency Secretary of the Commission 501 C Street, S.W., Room 840 U.S. Nuclear Regulatory Washington, D.C. 20472 Commission Washington, D.C. 20555 Mr. Jay Dunkleberger New York State Energy Office Atomic Safety and Licensing Agency Building 2 Appeal Board Panet Empire State Plaza U.S. Nuclear Regulatory Albany, New York 12223 Commission Washington, D.C. 20555 Stewart M. Glass, Esq.
- Regional Counsel Atomic Safety and Licensing Federal Emergency Management Board Panel Agency U.S. Nuclear Regulatory 26 Federal Plaza, Room 1349 Commission New York, New York 10278 Washington, D.C. 20555 Stephen B. Latham, Esq.
- Bernard M. Bordenick, Esq.
- Twomey, Latham & Shea Oreste Russ Pirfo, Esq.
33 West Second Street Edwin J. Reis. Esq.
P.O. Box 298 U.S. Nuclear Regulatory Riverhead, New York 11901 Commission 7735 Old Georgetown Road Jonathan D. Feinberg, Esq.
(to mallroom)
New York State Department of Bethesda, MD 20814 Public Service, Staff Counsel Three Rockefeller Plaza Lawrence Coe Lanpher, Esq.
- Albany, New York 12223 Karla J. I etsche, Esq.
Kirkpatrick & Lockhart Eighth Floor 1900 M Street, N.W.
Washington, D.C. 20036
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William E. Cumming, Esq.
Gerald C. Crotty, Esq.
Associate General Counsel Counsel to the Governor Federal Emergency Management Executive Chamber Agency State Capitol 500 C Street, S.W.
Albany, New York 12224 Room 840 Washington, D.C. 20472 Martin Bradley Ashare, Esq.
- Eugene R. Kelly, Esq.
Ms. Nora Bredes Suffolk County Attorney Executive Coordinator H. Lee Dennison Building Shoreham Opponents' Coalition Veterans Memorial Highway 195 East Main Street Hauppauge, New York 11787 Smithtown, New York 11787 Dr. Monroe Schneider North Shore Committee P.O. Box 231 Wading River, NY 11792
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'N Donald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: June 30,1986 e
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