ML20206T036

Motion for Summary Dismissal Or,In Alternative,Summary Disposition of State Environ Law Issue & Groundwater Issue.* Board Should Dismiss Two of Admitted Issues Re Authorization Under Environ State Law & Reception Ctrs on Water

ML20206T036
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/17/1987
From:	Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20206T041	List: ML20206T036 ML20206T271
References
CON-#287-3171 OL-3, NUDOCS 8704230103
Download: ML20206T036 (5)

Text

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o S/7/ LILCO, April 17, 1987 s

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'JSNR C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 APR 20 P2 :51 0FFICE cf L . .;w y Before the Atomic Safety and Licensinst Board [fdc[

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

MOTION FOR

SUMMARY

DISMISSAL OR, IN TIIE ALTERNATIVE,

SUMMARY

DISPOSITION OF TIIE STATE ENVIRONMENTAL LAW ISSUE AND GROUNDWATER ISSUE LILCO hereby moves the Board to dismiss two of the admitted issues regarding reception centers on the ground that there is no longer any basis for hearing these is-sues. In the alternative, LILCO asks the Board to grant summary disposition in its favor of those two issues on the ground that there is no genuine issue as to any material fact.

The two issues that should be dismissed or summarily disposed of are (1) the need for authorization under " state environmental law" and (2) the effect of the reception centers on the water supply:

State Environmental Law: whether the proposed use of the Coliseum for reception center purposes requires authorization under state environmental law Groundwater: whether health and safety problems might be caused through the use of the Coliseum as a reception center through its offeet on the water supply Memorandum and Order (Rulings on LILCO Motion to Reopen Record and Remand of Coliseum Issue), December 11,1986, slip op, at 7,16.

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g I. The State Environmental Law Issue and Groundwater Issue Should be Summarily Dismissed The basis for LILCO's motion to dismiss these two issues is that the only basis for hearing them was the Appeal Board's remand in ALAB-832, 23 NRC 135,162 (1986).

And the Appeal Board's remand of these issues was sclely to allow the testimony of Langdon Marsh and Sarah Meyland to be heard:

Mr. Marsh's testimony addresses whether the proposed use of the Coliseum is precluded by state law. This question goes to the availability of the Coliseum for reception center purposes and is, therefore, relevant. Ms. Meyland's testimony deals with possible health and safety problems that use of the Coll-seum for reception centers purposes might cause to the area water supply. This testimony focuses upon the availability of the Coliseum as a reception center and is clearly relevant.

ALAB-832, 23 NRC at 162 n.104. But the State has now withdrawn the testimony of Mr. Marsh and Ms. Meyland. See Attachment 1 to this motion (letter of New York State counsel withdrawing Mr. Marsh and Ms. Meyland as witnesses). Acccrdingly, there is no longer any basis for hearing the two issues.

Moreover, New York State has used its withdrawal of Mr. Marsh as a reason not to answer LILCO's April 3 motion to compel II production of a memorandum on which Mr. Marsh's testimony would have drawn; New York says that the withdrawal of the witness makes the motion to compel moot. See Attachment 1. In fact, it is moot only if the issue, not just the witness, is withdrawn. Accordingly, if this motion is denied and the Board proceeds to hearing on the issue of State law nothwithstanding the ab-sence of any direct evidence from the Intervenors, LILCO requests an order granting its April 3 motion to compel.

t 1/ LILCO's Motion to Compel State of New York to Produce Document (April 3, 1987).

e s II. In The Alternative, Summary Disposition Should Be Granted Section 2.749 of 10 C.F.R. provides that the Board "shall" grant summary disposi-tion of an issue if the papers filed show that "there is no genuine issue as to any materi-al fact and that the moving party is entitled to a decision as a matter of law." 10 C.F.R. S 2.749(d) (1986). Such is the case for both the State environmental law issue and the groundwater issue.

A. State Environmental Law As to the State environmental law issue, the only State laws addressed in the 1985 written testimony of Mr. Marsh, which the Appeal Board remanded for hearing, were the State Environmental Quality Review Act (SEQRA), N.Y. Environmental Con-servation Law (ECL) SS 8-0101 to 8-0117 (McKinney 1984), and the State water pollu-tion control law, ECL SS 17-0101 et sea. Neither law raises any litigable issue. The facts are these:

1. SEQRA requires an environmental impact statement for any action that state or local agencies " propose or approve" which may have a significant effect on the environment. ECL SS 8-0109.2, 8-0105.1 .3.

2. The reception centers are on private property owned by LILCO.

3. SPDES permits are required only for " discharges" of pollutants "into the waters of (the] state." ECL SS 17-0701, 17-0505.

4. LILCO will collect the washwater in portable storage tanks. See Attach-ment 4 to this motion (excerpt from deposition of Charles A. Daverlo).

5. No other reception center for any nuclear plant in New York State has been required to have SPDES permits or an environmental impact state-ment. See Attachment 2 to this motion.

6. In a real emergqncy, New York State and the county governments would make a "best effort" response. CLI-86-13,24 NRC 22,31,33 (1986).

Two of these facts, nos. 5 and 6, are particularly important. First, the State ad-

, mits that other reception centers in New York State do not have EIS's or SPDES per-mits. While the State continues to qualify its admission (see Attachment 2)in a fashion t

r s that suggests it is trying to have it both ways, the fact is that LILCO raised the issue of equal treatment over two years ago. See Attachment 5 to this motion, which was at-tached to LILCO's Response to Intervenors' Proffered Testimony on the Designation of Nassau Coliseum as a Reception Center on February 26,1985. If the State still has not required EIS's or SPDES permits for reception centers for operating plants, the State must not think the absence of these EIS's and permits is an obstacle to an emergency response.

Second, the only issue that this Board can hear, under the terms of the Appeal Board's remand, is whether the absence of state permits would make the reception cen-ters unavailable in time of emergency. Given the "best efforts" assumption of CLI 13, the absence of permits would not interfere with the availability of the centers.

For these reasons, the Board should grant summary disposition in LILCO's favor of the issue whether the proposed use of the reception centers requires authorization under state environmental laws.

B. Groundwater Likewise, the issue of effect on the water supply raises no litigable issue. As noted above, LILCO will collect the washwater rather than release it to find its way into the groundwater. Thus, the washwater can be held in the storage tanks until the radioactive materials decay to a safe level or until the water can be transported for processing. Any disposal of the water can be done during the recovery phase, without time pressure and with the approval of government officials.E o

2/ Even if the washwater were to be dumped on the ground or in the sewers, there would be no litigable issue. From Attachments 6-10 to this motion it is clear that con-tainment of washwater in an emergency is not viewed as necessary by either New York State or the federal government.

e g CONCLUSION For the reasons stated above the State environmental law issue and groundwater issue should not be litigated. First, there is no longer any basis for hearing them, the basis having been withdrawn by the State. Second, there is no triable issue of fact.

Respectfully submitted, h 0k2! $ ^^ &

James N. Christman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: April 17,1987 t