ML20207B680

Response Opposing Util Motion to Strike Suffolk County Executive Pf Cohalan 860623 Public Statement Re Emergency Planning as Unauthorized Pleading.Certificate of Svc Encl

ML20207B680
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/14/1986
From:	Brownlee D KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:	NRC COMMISSION (OCM)
References
CON-#386-009, CON-#386-9 OL-3, NUDOCS 8607180155
Download: ML20207B680 (21)

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UNITED STATES OF AMERICA 15 "ll:35 e

NUCLEAR REGULATORY COMMISSION IchfU'--

c, e-BEFORE THE COMMISSION In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

SUFFOLK COUNTY'S ANSWER TO LILCO'S

" MOTION TO STRIKE UNAUTHORIZED PLEADING FILED ON JUNE 23 BY SUFFOLK COUNTY" On June 23, 1986, the Suffolk County Executive, Peter F. Cohalan, issued a public statement (" Statement") concerning his position on emergency planning at Shoreham. The Chief Deputy County Executive of Suffolk County, Frank R. Jones, forwarded copies of Mr. Cohalan's Statement to the Commission and to all parties to this proceeding by letter dated June 23, 1986. The Statement was submitted without comment or argument by counsel for the County.

Characterizing this public statement by an elected official as an " unauthorized pleading," LILCO has moved to strike I the Statement, and it has submitted a " Reply," 1.e., a 17-page i I

brief that sets forth LILCO's latest variations of its so-called i " realism" argument while simultaneously insisting that this l

Commission has enjoined the parties not to submit further briefs on the " realism" issue. LILCO's Reply, p. 1, n. 1.

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LILCO's statements to the contrary notwithstanding, Mr. Cohalan's Statement is not a pleading, authorized or unauthorized. It is a relevant fact, existing in the public domain. Mr. Jones' action in forwarding copies of that Statement l to this Commission was both proper and consistent with the prior practice of all parties, including LILCO, in providing this Commission with information concerning matters of public interest.1 Suffolk County files this Answer to the pending l

Motion to Strike pursuant to 10 C.F.R. 52.730(c)(1986). l LILCO's Motion to Strike and its " Reply" are thinly l

veiled efforts to re-argue its position on " realism" while screening the NRC from relevant information concerning the position of responsible government authorities.2 LILCO's Reply 1 Throughout these proceedings, LILCO has frequently advised this Commission, the ASLB and the Appeal Board of public events, with and without commentary on the significance of such events for these proceedings. Egg, for example, Letter of Donald P.

Irwin, Esq. dated May 31, 1985 to this Commission and other parties (concerning Suffolk County Executive Order 1985-1);

Letter of James N. Christman, Esq. dated June 13, 1985 to the ASLB (concerning litigation relating to Executive Order 1985-1);

Letter of Donald P. Irwin, Esq. dated January 17, 1986 to this Commission and other parties (concerning Suffolk County Local Law No. 2-1986); Letter of Donald P. Irwin, Esq. dated June 17, 1986 to this Commission and other parties (concerning Nassau County Resolution No. 782-1986). The participants in this proceeding, including specifically LILCO and its counsel, have acted in this manner, because it is appropriate to apprise this Commission of public matters that relate to the Shoreham operating license application. j 2 LILCO has repeatedly cited Mr. Cohalan's June 26, 1985 letter to W. Taylor Reveley, III, Esq., counsel for LILCO, in which he stated that he would respond to the best of his abilities and in accordance with his legal duties if Shoreham were licensed and if a nuclear accident ensued. On January 30, 1986, Mr. Cohalan wrote to Mr. Reveley, objecting to his firm's l

ignores four basic points. First, LILCO has submitted an offsite emergency plan for Shoreham (" Plan") that it cannot implement.

Second, no State or local governmental entity supports LILCO's Plan, and no such entity is willing to implement that Plan.

Third, NRC regulations require an applicant to submit an emergency plan that assigns basic emergency response functions to parties who have agreed to carry out those functions. Fourth, LILCO cannot demonstrate that its Plan satisfies NRC regulations and that all emergency response arrangements are in place before an operating license can issue. Guard v. Nuclear Reculatory Commission, 753 F.2d 1144 (D.C. Cir. 1985).

LILCO's " realism" argument is utterly unrealistic. It ignores the record in this proceeding. It ignores the positions of the relevant governmental authorities, positions that have been upheld in litigation in State and federal courts. It ignores the NRC's emergency planning regulations. It ignores the applicable law. In essence, LILCO asks this Commission to join its flight from reality and to license the Shoreham plant on the basis of (1) an illegal emergency plan and (11) LILCO's misleading references to his June 26, 1985 letter and stating that he had never committed "the County to act in concert with LERO in the event of a radiological accident at Shoreham nor have I ever committed the County to implement the LILCO Plan in such an event." Notwithstanding its frequent citations of Mr. Cohalan's June, 1985 letter, LILCO has never provided this Commission with a copy of Mr. Cohalan's January 30, 1986 letter of clarification. Accordingly, Mr. Cohalan's Statement rescinds the June 26, 1985 letter and seeks to insure that all parties, including.this Commission, are aware of his position on emergency planning at Shoreham and his previously stated unwillingness to implement the LILCO Plan.

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i i assumption that Suffolk County and New York State would make some ,

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, . unspecified response using some unspecified resources in the 1

i event of a nuclear accident at Shoreham.3 1 i

i In addressing LILCO's Motion to Strike and its

" realism" argument, this Commission must face squarely the serial l defects in LILCO's position. First, this Commission's regulations stipulate that no operating license can issue'unless the NRC finds that there is " reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." 10 C.F.R. 550.47(a)(1)(1986). That finding must be based on a review of FEMA's findings and determinations "as to whether State and local emergency plans are adequate and whether there is reasonable assurance that they can l

l be implemented." 10 C.F.R. 550.47(a)(2)(1986).4 In this 3

The Appeal Board held that "no state or county response plan i

has been submitted for review on this record." Lona Island Liahtina comoany (Shoreham Nuclear Power Station, Unit 1), r ALAB-818, 22 NRC 651, 674 (1985) (hereafter "ALAB-818"). No

, evidence of record supports any hypothetical State or County 1 response. Moreover, at the threshold, LILCO has failed to l satisfy the requirement of 10 C.F.R. 550.33(g) that an applicant r submit the "radiologica1' emergency response plans of State and j local governmental entities that are wholly or partially within t j the plume exposure pathway Emergency Planning Zone (EPZ), as well j as the plans of State governments wholly or partially within the

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ingestion pathway EPZ." 10 C.F.R. 550.33(g)(1986). t a

4 FEMA findings are important, because offsite emergency I planning ~ issues are not "within the core of the Commission's expertise." Guard v. N.R.C., 753 F.2d at 1150. Following TMI, FEMA was directed to " assume lead responsibility for all offsite nuclear emergency planning and response" and the MOU between the NRC and FEMA spcifically requires FEMA, not the NRC, to "take the lead in offsite emergency planning." 50 Eadt Ragt 15,485, 15,486 (April 18, 1985). The NRC's emergency planning i

) regulations give FEMA primary responsibility for reviewing j offsite plans while the NRC retains primary responsibility for i

I

f proceeding, FEMA has not determined that State and local plans >

are adequate. FEMA has, in fact, repeatedly refused to find that LILCO's Plan is adequate or could be implemented, specifically citing LILCO's lack of authority to implement its Plan.5 I

Finally, FEMA has advised the NRC that no reasonable assurance finding can be made with respect to LILCO's Plan unless there is governmental participation in an exercise of that Plan.6 Obviously, the February 13, 1986 exercise of LILCO's Plan was carried out without New York State or Suffolk County participation. In light of that exercise, FEMA has reiterated its inability to " measure the capabilities and preparedness of State and local governments if called upon to respond," and it has refused to make a reasonable assurance finding. FEMA, Post Exercise Assessment dated April 17, 1986, p. ix. Accordingly, this Commission lacks the basic predicate (a favorable FEMA finding) for a reasonable assurance finding.

j reviewing a utility's onsite emergency plans. 10 C.F.R. 550.47(a)(2)(1986).

5 Egg, e.a., March 15, 1984 Letter from Samuel W. Speck, Associate Director, Stato and Local Programs and Support, FEMA, to William J. Dircks, Executive Director for Operations, NRC, Attachment 2 (" Concerns Pertaining to LERO's Legal Authority Identified During RAC Review of LILCO Transition Plan for Shoreham - Revision 3); June 23, 1983 Letter from Richard W.

Kreimer, Assistant Associate Director, FEMA, to Edward L. Jordan, l

Director, Division of Emergency Preparedness and Engineering Response, NRC; August 29, 1983 Letter from Jeffrey S. Bragg, Executive Deputy Director, FEMA, to William J. Dircks, NRC.

6 Letter from Samuel W. Speck, FEMA, to William J. Dircks, NRC, dated October 29, 1985.

Second, this Commission's regulations mandate that the Commission find that adequate protective measures "can and will be taken" and that the emergency plan under review "can be implemented." 10 C.F.3. $50.47(a)(1) and (2)(1986). The only plan under review is the LILCO Plan that relies " wholly on the services of LILCO personnel and contractors for the performance of emergency functions" and "does not rely on Suffolk County or New York State government personnel or resources." Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644, 650, 895 (1985) (hereafter "ASLB Decision").7 The New York State Supreme Court has determined that that Plan is illegal and that LILCO has no legal authority to implement that Plan. Cuomo y Lona Island Lichtina Co., Consol. Ind. No. 84-4615 (NY Sup. Ct., slip op., February 20, 1985 and Partial Declaratory Judgment entered March 28, 1985).8 In short, LILCO has not 7 In light of LILCO's inability to show that New York State or Suffolk County had consented to perform the responsibilities assigned to them under LILCO's alternative plans, the ASLB properly limited the scope of this litigation to the LILCO Plan.

Sag ASLB Decision, 21 NRC at 650; ASLB Order Limiting Scope of Submissions dated June 10, 1983. Egg also ALAB-818, 22 NRC at 659: The LILCO Plan "does not rely on county or-state personnel." LILCO has never challenged the ASLB and Appeal Board characterization of its Plan nor has it appealed from the ASLB's decision limiting this litigation to that Plan.

8 LILCO's appeal from the Cuomo v. LILCO decision is pending before the New York Supreme Court Appellate Division - Second Department. That appeal notwithstanding, the decision of the New York State Supreme Court and the Partial Declaratory Judgment entered thereon are binding upon LILCO. Under principles of Lag iudicata, that decision and Judgment must be ar epted by this Commission.

• Egg aenerally, Allen v. McCurry, .,9 U.S. 90, 94 (1980); Mandarino v. Pollard, 718 F.2d 845 (7th Cir. 1983), cert.

denied, 1055 S. Ct. 116 (1984).

submitted an emergency plan that it can implement. Accordingly, LILCO cannot satisfy the basic requirement of $50.47(a),

Third, this Commission's regulations specify that any offsite emergency response plan must meet specific regulatory standards. 10 C.F.R. 550.47(b). Where the Commission has

) established specific standards for emergency plans, the applicant must establish that its plan, as submitted, meets those standards. An applicant cannot satisfy emergency planning l'

regulations through conjecture or by surmise that some future 1 actions will protect the public. Sgg, e.g., Guard v. N.R.C., 753 F.2d at 1149: An emergency planning standard " calling for pre-i event arrangements is net ransibly met by post-event prescriptions." In Guard,'the Court specifically held that where the Commission's regulations establish basic standards, those i

standards cannot be satisfied by an " assumption" that " adequate l facilities will be available . . . in the event of an accident" 1

where, in fact, no arrangements have been made to assure the i

j availability and adequacy of the required facilities. Guard v.

N.R.C., 753 F.2d at 1150. Egg also Philadelohia Elec. Co.

! (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC

! 681, 713-4 (1985). LILCO's entire " realism" argument rests on such assumptions. LILCOs " realism" argument ignores the Court 1

of Appeals' clear holding in Guard, and under applicable law, i

LILCO has not made the required showing under $50.47(b).

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4 Fourth, this Commission's regulations mandate that any offsite plan must specifically establish emergency .

responsibilities, assign primary responsibilities for emergency responses to identified entities and establish that each principal response organization has the capacity to respond and to carry out those responsibilities on a continuing basis. 10 C.F.R. 550.47(b)(1)(1986). LILCO can attempt to satisfy this basic requirement in one of three ways. First, LILCO can assert that it and its alter ego, LERO, can and will implement its Plan.

LILCO has repeatedly taken that position.9 LILCO 1'

notwithstanding, Cuomo v. LILCO, supra, establishes that LILCO cannot implement its Plan. Second, LILCO can argue that, in the event of an emergency, the State or County governments would authorize LILCO to carry out its Plan and to perform inherently governmental functions embraced by it. LILCO has frequently espoused this theory as well.10 Again, however, Cuomo v. LILCO

) forecloses this avenue. The New York Supreme Court has determined that State and local governments cannot delegate the authority to implement the Plan to a private corporation such as LILCO.ll Egg Cuomo v. LILCO, slip. op. at 18; ASLB Decision, 21 9 Egg LILCO's Plan, $1.4: "LERO is prepared to respond during a radiological emergency to" effectively protect the safety and health of the public . . . .

10 Egg ASLB Decision, 21 NRC at 911.

11 Both Governor Cuomo and County Executive Cohalan have stated that they'would not authorize LILCO to carry out governmental functions and implement the Plan even if they had the authority to do so. I i

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NRC at 911. Finally, LILCO can argue that the State of New York and/or County of Suffolk would implement LILCO's own Plan, using their own resources or the LERO organization.12 That position is foreclosed by a simple fact: not one shred of evidence supports it. Neither the State nor the County has agreed to carry out the LILCO Plan. Both the State and the County have flatly stated their unwillingness to implement LILCO's Plan, whether or not Shoreham is licensed. And, both the State and County have stated that, in the event of a Shoreham emergency, they would not rely upon LILCO.13 Given the nature of the LILCO Plan, the legal constraints applicable to LILCO, the positions of New York State and Suffolk County and the record in this proceeding, LILCO cannot satisfy the basic requirement of $50.47(b)(1).

12 Egg ALAE-818, 22 NRC at 674.

13 No fact of record contradicts the stated positions of the State or the County. Egg, e.g., ALAB-818, 22 NRC at 675: "[T]he State and County have thus far refused.to participate at all in any preparation or testing of emergency procedures." Moreover, the New York State Supreme Court enjoined the Suffolk County Executive from " directing any County personnel to . . . implement the LILCO plan or any Radiological Emergency Response Plan (RERP), for the Shoreham nuclear plant without securing a resolution adopted by the "County Legislature and approved by the County Executive; . . . . Prosoect v. Cohalan, Ind. No.

85-10520 (N.Y. Sup. Ct., Order, June 10, 1985) (Doyle, J.),

aff'd, 109 A.D. 2d 210, 490 N.Y.S. 2d 795, aff'd, 65 N.Y. 2d 867, 493 N.Y.S, 2d 293 (1985). The N.Y. Court of Appeals denied LILCO's Motion for reconsideration of Justice Doyle's June 10, 1985 Order on September 12, 1985.

, Fifth, LILCO's " realism" argument ignores the entire thrust of Congressional and regulatory activity relating to offsite emergency planning since TMI. All parties -- the President, Congress, the Kemeny Ccmmission, this Commission and the public -- understood that TMI had identified a basic problem:

the need for pre-existing offsite emergency plans that allocate response functions and provide for preplanning and coordination -

4 on a cooperative basis by all parties who have emergency functions.14 This Commission's emergency planning rules reflect that consensus and require, in letter and in spirit, a plan that embraces these basic requirements for preplanning and cooperative effort by those parties that will carry out emergency response functions. For example, in adopting its emergency planning rules, this Commission distinguished between the protection of human health and safety for which prior planning is necessary and the protection of property for which ad h2g responses are sufficient.15 Similarly, the Commission required that the applicant provide a plan for protective measures within the 10-mile plume exposure EPZ while recognizing that ad h2g measures 14 In addressing that need, Congress recognized that offsite planning was the domain of state and local governments and flatly refused to require state and local governments to adopt offsite emergency plans. Egg 125 Cono. Rec., S. 9463-9477 (July 19, 1979).

15 Egg 45 Fed. Reg. 55,404, 55,407 (Aug. 19, 1980) (NRC Statement accompanying final rule). Egg, also, NRC, Summary of Public Comments and NRC Staff Analysis Relating to Rulemaking on l Emergency Planning for Nuclear Power Plants, NUREG-0684, at 2-4, l 2-5 (September, 1980).  !

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might be required in the area beyond the plume exposure pathway.16 In Guard, the Court of Appeals recognized the nature of this Commission's emergency planning rules in holding that the arrangements needed to satisfy the Commission's emergency planning rules must be in place before any license can issue.

Both the ASLB and the Appeal Board properly recognized that LILCO's entire " realism" position ignores these basic facts. In relying on the possibility of future actions by nonparticipating 1 governmental entities, LILCO attempts to meet post-TMI standards with pre-TMI procedures. That " realism" position is unsupportable given the legislative and regulatory events of the 1

past seven years.

Sixth, although LILCO dislikes Suffolk County's emergency planning policy, it cannot seriously challenge the legality of the County's opposition to Shoreham or its considered decision not to support LILCO's licensing efforts. LILCO sued the County in federal court seeking a determination that the County's decision not to adopt or implement LILCO's emergency response plan or any other emergency plan for Shoreham violated federal law.17 That suit was unsuccessful. The District Court 16 Sgg NRC, Transcript of Public Meeting with Industry, State and Local and Special Interest Group Panels on Emergency Planning and Preparedness and Staff Response, 91-93 (June 25, 1980); NRC, Transcript of Public Meeting, Staff Response to Panel Presentations on Emergency Planning, 10-12 (July 3, 1980)

(statement of K. Goller, NRC staff).

17 Similarly, LILCO has argued in state court that the County has a sta'te-mandated duty to adopt an offsite emergency plan for Shoreham under the New York Executive Law, Article 2-B. The New l York Court of Appeals squarely rejected LILCO's position, holding

i rejected LILCO's position and specifically held that the County's opposition to Shoreham was not preempted or in conflict with federal law. Citizens for an Orderly Enerav Policy, Inc. et al.

v. County of Suffolk, 604 F. Supp. 1084, 1093-9 (E.D. N.Y.

1985).18 The Court specifically rejected LILCO's argument that the County's conduct regarding " radiation emergency response planning amounts to local regulation of the health and safety aspects of nuclear power production." After a review of legislative history, the Court specifically held that " Congress was well aware of the possibility that local governments might refuse to cooperate in furnishing a RERP." Citizens, 604 F.

Supp. at 1093, 1095. Finally, the Court determined that the County's refusal to aid LILCO was a valid governmental decision rationally related to legitimate governmental objectives:

The County . . . through its elected legislators, has taken the position that a satisfactory evacuation plan cannot be fashioned and that it can best provide for the health and safety of its residents by refusin3 to cooperate with LILCO in l

that the language of $23(1) of Article 2-B " unequivocally signals a legislative intent that the preparation of county plans is optional, not mandatory." In re Prospect v. Cohalan, 65 N.Y. 2d 867, 493 N.Y.S. 2d 293, 294 (1985). Thus, LILCO's repeated assertions that the County has " defaulted" on its obligations have no basis.

18 LILCO appealed the Citizens decision to the Court of Appeals but withdrew that appeal without prejudice to its potential reinstatement. Nonetheless, the Citizens decision is binding upon LILCO. Under the doctrine of Igg iudicata, this Commission must accept the District Court's decision confirming the legality of the County's emergency planning policy. Egg, e.g., Allen v.

McCurry, 449 U.S. 90, 94 (1980); Hunt v. Liberty Lobby, Inc., 707 F.2d 1493, 1497 (D.C. Cir. 1983).

an attempt to convince the NRC otherwise. This  !

court may not second guess the wisdom of that decision. .

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Citizens, 604 F. Supp. at 1098. Similarly, this Commission may not second-guess the County's decision, however much it may wish ,

I the County had decided to support Shoreham.

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l Suffolk County does not challenge the NRC's authority to decide whether LILCO has satisfied the NRC's licensing l l

requirements. The County has asserted, however, that no license

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can issue unless LILCO shows that its Plan, as submitted, I

satisfies NRC regulations. See Guard v. N.R.C., suora. In f

making that showing, LILCO cannot rely upon its unfounded assumption that the State or County will implement LILCO's own Plan, whether or not this Commission finds that Plan " adequate."

Seventh, tacitly acknowledging that LILCO's Plan does not comply with S50.47(b), LILCO's Reply now advances the alternative argument that the " realism" argument is "merely an application to the facts of Shoreham of $50.47(c)(1)." LILCO Reply, p. 13. Conceding that its " construct," i.e., the

" realism" argument, " involves departures from the norm of governmental sponsorship of emergency planning and response presumed in S50.47(b; cf the Commission's regulations," LILCO attempts to make the showing required by $50.47(c)(1) by conclusory statements. First, LILCO asserts that its " departures from 50.47(b) necessitated by governmental default are not, on the facts, significant." L7LCO Reply, pp. 14-15. LILCO's

" departures" from $50.47 are manifold. Most basically, LILCO has

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failed to submit an offsite emergency plan that it can implement.19 This Commission cannot accept LILCO's argument that its " departures from 550.47" are "not significant," unless it is willing to gut its emergency planning standards and conclude that the absence of an implementable offsite plan is "not significant."

Second, LILCO suggests, albeit weakly, that issuance of a license may be justified because " adequate interim compensating actions have been or will be taken promptly." 10 C.F.R. 550.47(c)(1)(1986). Acknowledging that the necessary duration of its " interim" meast es is " uncertain," LILCO blandly asserts that "there is little doubc of their adequacy in fact for customary licensing purposes." LILCO Reply, p. 15. " Customary licensing" requires adherence to regulatory standards. Section 50.47(c)(1)'s provision for adequate interim compensating actions grants the NRC some leeway to issue a license where matters of detail have not been fully addressed. It cannot be relied upon to erase the Commission's emergency planning regulations in totg nor can it be used to negate the basic requirement that an applicant submit an offsite plan that assigns primary responsibilities to responsible entities that have agreed to carry out their assigned roles.

19 Compare Philadelphia Elec. Co., 22 NRC at 715-6: Incomplete back-uo medical arrangements not sufficiently significant to ,

require license suspension.

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Lastly, LILCO argues that there are " compelling i

reasons" to permit plant operation. Specifically, LILCO suggests that "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 regulations as an I

artifice to prevent the operation of otherwise licensable power I plants." LILCO's suggestion ignores the real question: has LILCO itself met the emergency planning standards that an )

i applicant must satisfy? Clearly, it has not. That point aside, j this Commission addressed the implications of state and local inaction when it promulgated its emergency planning regulations in 1980. At that time, the Commission specifically took note of industry objections that the proposed regulations would "in fact giv[e] state and local governments veto over the operations of nuclear plants." 45 Fed. Rec. 55,405 (Aug. 19, 1980).

Notwithstanding those concerns, the Commission adopted its emergency planning rule, explicitly acknowledging the

" possibility that the operation of some reactors may be affected by this rule through inaction of state and local governments or l l

an inability to comply with these rules. The Commission believes that the potential restriction of plant operation by state and l local officials is not significantly different in kind or effect from the means already available under existing law to prohibit reactor operation. . . . 45 Fed. Rec. 55,404 (Aug. 19, 1980).20 This Commission has already acknowledged that it will 20 The Staff's presentation to the Commission on final rule-making on emergency preparedness graphically demonstrates that

not be possible to license a plant (i) where state and local governments do not participate in emergency planning and (ii) where the applicant, on its own, is unable to provide an offsite plan that meets NRC standards. This is such a case.

the issue of state and local " veto" power was before the Commission when it adopted $550.33 and 50.47. Thus, the Staff cited the possibility that the " failure of state or local govt to develop &/or implement an acceptable emergency plan for any reason could effectively block licensing &/or operation of a plant." The Staff's response was as follows:

" Staff Resoonse Possibility specifically recognized in supplemental info accompanying rule Other potential state & local "vetos" already exist, i.e. b1dg. permits.

Expectation that state & local govts will act responsibly & provide for public safety Nevertheless, could become a major problem in some future cases."

Finally, in summarizing the ACRS review of the emergency planning rule, the Staff specifically identified ACRS concerns that had not been satisfied. One such issue was the state and local " veto" concern. The text of the Staff's slide presenting that issue to the Commission was as follows:

"ACRS REMAINING COMMENT / RECOMMENDATIONS

1. 3. State & local govt " veto power" - ACRS requested clarification regard of Commission's intentions in this Possibility is inherent in the basic concept of the rule Actual situation is unlikely If it develops, adequate provisions to assure health & safety of public must take precedence Finally, given these fatal defects in its " realism" argument, LILCO's most recent filing proffers a stripped.-down variant of " realism." LILCO now asserts that " realism" only means that LILCO has a Plan, that the State (and County) have

" legal duties," and that LILCO's Plan "could and in reality would be utilized, if needed." Response of Long Island Lighting Company to Governor Cuomo's June 30, 1986 " Statement" dated July 2, 1986, p. 5. Thus, LILCO's " realism" argument relies upon (i) the existence of an illegal, paper plan that LILCO cannot implement and that responsible governmental officials have disavowed, (ii) LILCO's assumption that state and local governments will exercise their sovereign powers in the event of a nuclear emergency and (iii) LILCO's unfounded assumption that the State and the County, in the exercise of their sovereign powers, will go down whatever path LILCO has prescribed for them.

LILCO's assumptions do not satisfy the NRC's regulations, and they fly in the face of the Guard decision. LILCO's " realism" l --------------------

i Staff recommendation - Commission position is clear No further actior. is necessary" NRC Transcript, Staff Presentation on Final Rulemaking on Emergency Preparedness, Public Meeting, June 18, 1980, Appendix of Slides for a Commission Briefing.

In 1980, the Commission acknowledged that health and safety concerns must "take precedence." It adopted its emergency planning rules to achieve that end. The Commission cannot now ignore its rules, merely because LILCO cannot satisfy applicable regulations.

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l argument is nothing more than an invitation to this Commission to ignore its own regulations. The Licensing and Appeal Boards declined that invitation. This Commission should do likewise.

CONCLUSION LILCO's Motion to Strike attempts to screen this Commission from relevant information. That Motion has no merit and should be denied. In addition, this Commission should reject LILCO's " realism" argument.

Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney 158 North County Complex Hauppauge, NY 11788 Herbert H. Brown Lawrence Coe Lanpher Kirkpatrick & Lockhart 1900 M Street, N.W.

Suite 800 Washington, DC 20036 1

David A. Brownlee Michael J. Lynch '

Kenneth M, Argentieri Kirkpatrick & Lockhart 1500 Oliver Building Pittsburgh, PA 15222

, Attorneys for Suffolk County Dated: July 14,1986 I

__ ___-----__---_-_a

' d

• l s . l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, ) l Unit 1) )

Certificate of Service I hereby certify that copies of "SUFFOLK COUNTY'S ANSWER TO LILCO'S ' MOTION TO STRIKE UNAUTHORIZED PLEADING FILED ON JUNE 23 BY SUFFOLK COUNTY'" have been served on the following this 14th day of July, 1986 by U.S. mail, first class, except as otherwise noted:

• Lando W. Zech, Jr., Chairman

• William C. Parler, Esq.

U.S. Nuclear Regulatory Comm. General Counsel

! Room 1113 U.S. Nuclear Regulatory Comm.

! 1717 H Street, N.W. 10th Floor i Washington, DC 20555 1717 H Street, N.W.

Washington, DC 20555

• Comm. James K. Asselstine *Comm. Frederick M. Bernthal U.S. Nuclear Regulatory Comm. U.S. Nuclear Regulatory Comm.

Room 1136 Room 1156 1717 H Street, N.W. 1717 H Street, N.W.

Washington, DC 20555 Washington, DC 20555

• Bernard M. Bordenick, Esq. *Comm. Thomas M. Roberts U.S. Nuclear Regulatory Comm. U.S. Nuclear Regulatory Comm.

7735 Old Georgetown Road Room 1103 8th Floor, Room 8704 1717 H Street, N W.

Washington, DC 20555 Washington, DC 20555

[ . ,

Alan S. Rosenthal, Chairman Stuart Diamond Atomic Safety and Licensing Business / Financial Appeal Board NEW YORK TIMES U.S. Nuclear Regulatory Comm. 229 W. 43rd Street Washington, DC 20555 New York, NY 10036 Mr. Howard A. Wilber Joel Blau, Esq.

Atomic Safety and Licensing New York Public Service Comm.

Appeal Board The Governor Nelson A. Rockefeller U.S. Nuclear Regulatory Comm. Building Washington, DC 20555 Empire State Plaza Albany, NY 12223 l

Mr. Gary J. Edles Stewart M. Glass, Esq.

Atomic Safety and Licensing Regional Counsel Appeal Board Federal Emergency Management Agency U.S. Nuclear Regulatory Comm. 26 Federal Plaza Washington, DC 20555 New York, NY 10278 Mr. William Rogers Anthony F. Earley, Esq.

Clerk General Counsel Suffolk County Legislature Long Island Lighting Company Suffolk County Legislature 250 Old Country Road Office Building Mineola, NY 11501 Veterans Memorial Highway Hauppauge, NY 11788 Spence Perry, Esq. *W. Taylor Reveley, III, Esq.

Associate General Counsel Hunton & Williams Federal Emergency Management P. O. Box 1535 Agency 707 East Main Street Washington, DC 20471 Richmond, VA 23212 Mr. L. F. Britt Mr. Jay Dunkleberger Long Island Lighting Company New York State Energy Office )

Shoreham Nuclear Power Station Agency Building 2 North Country Road Empire State Plaza Wading River, NY 11792 Albany, NY 12223 Ms. Nora Bredes

• Stephen B. Latham, Esq.

Executive Director Twoney, Latham & Shea Shoreham Opponents Coalition 33 West Second Street 195 East Main Street Riverhead, NY 11901 Smithtown, NY 11787

• Docketing and Service Section Mary Gundrun, Esq.

Office of the Secretary New York State Department U.S. Nuclear Regulatory Comm. of Law 1717 H Street, N.W. 2 World Trade Center, Rm. 4614 Washington, DC 20555 New York, NY 10047

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Hon. Peter Cohalan MHB Technical Associates Suffolk County Executive 1723 Hamilton Avenue H. Lee Dennison Building Suite K Veterans Memorial Highway San Jose, CA 95125 Hauppauge, NY 11788 Dr. Monroe Schneider

• Martin Bradley Ashare, Esq.

North Shore Committee Suffolk County Attorney P. O. Box 231 Bldg. 158 North County Complex Wading River, NY 11792 Veterans Memorial Highway Hauppauge, NY 11788

• Fabian G. Palomino, Esq. Lawrence Coe Lanpher, Esq.

Special Counsel to the Governor Kirkpatrick & Lockhart Executive Chamber, Room 229 1900 M Street, N.W.

State Capitol Suite 800 Albany, NY 12224 Washington, DC 20036 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comm.

Washington, DC 20555 David A. Brownlee KIRKPATRICK & LOCKHART 1500 Oliver Building Pittsburgh, PA 15222 Date: July 14, 1986

• By Federal Express I

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