ML20209G614
| ML20209G614 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/27/1987 |
| From: | Brown H, Latham S, Palomino F NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20209G621 | List: |
| References | |
| CON-#287-3288 OL, OL-3, NUDOCS 8705010024 | |
| Download: ML20209G614 (34) | |
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00LKLIEC USNRC April 27 p9,85 29 P12 :19 UNITED STATES OF AMERICA 0FFIC:. Lr hrM NUCLEAR REGULATORY COMMISSION 00CKEir((j{rRVICI.
Before the Commission
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket Nos. 50-322-OL
) 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON RESPONSE IN OPPOSITION TO LILCO'S MOTION FOR EXPEDITED COMMISSION CONSIDERATION I. Introduction On April 14, 1987, LILCO served an unprecedented pleading on i the Commission: a Request for Authorization to Increase Power to 25% (the "LILCO Request"). LILCO coupled the Request with a motion that Commission review of the Request be expedited. Egg Motion for Expedited Commission Consideration (the "LILCO Motion"). LILCO also coupled the filing of the pleadings with a i
major media campaign, in which it made clear that " expedited" 8705010024 870427 PDR ADOCK 05000322 G PDR
review meant Commission approval of the Request in a matter'of weeks in order to allow 25% power operation of Shoreham this summer. Egg coverage in Newsday, April 14, 1987, at 3.1 In essence, LILCO, without even filing for an exemption from
! applicable NRC regulations, has asked the Commission to by pass the Margulies (OL-3) and Frye (OL-5) Licensing Boards which have jurisdiction over Shoreham emergency planning issues and, with cursory " review," do something that has never been done before:
grant a license to operate a nuclear plant at 25% power on the basis of the first-ever utility plan, despite the pendency of multiple unresolved emergency plancing issues before two Licensing Boards, and despite the fact that no FEMA findings on Plan implementability have been made. In the process, LILCO i
would have the NRC rely on voluminous and complex probabilistic
- risk assessment ("PRA") analyses, accept LILCO's biased predic-tions of Long Island power shortages, and. ignore the statutory hearing rights guaranteed to the Governments by the Atomic Energy Act. LILCO calls for no hearings on its unprecedented Request,
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1 The LILCO Request and Motion both are dated April 14, 1987, and were served on the Governments via Federal Express for delivery on April 15. The Commissioners and FEMA received hand service on April 14. On April 13, two days before the Governments received LILCO's Request and Motion, and one day before the Commission did, LILCO gave the Request and Motion to the press and held private briefings with reporters. On April 14, LILCO's Request and Motion were the subject of extensive news articles.
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despite the fact that almost every issue raised by LILCO is contested; rather, it urges "immediate Commission authorization to increase power to 25% . . . . LILCO Request at 1.
The LILCO Motion and Request put the NRC on the spot. LILCO took 18 months to prepare the Request.2 Yet, despite the complexity and unprecedented nature of the Request, LILCO would have the NRC summarily grant approval. Egg LILCO Motion at 1; LILCO Request at 1. It is obvious what LILCO is really after:
LILCO is asking the NRC for a favor -- disregard the regulations and disregard the time required for other parties to review the Request (assuming arauendo that the LILCO Request merits any
, review at all) and, instead, grant LILCO unprecedented operating
. rights. LILCO is not just asking the NRC to exercise discretion; LILCO is asking the NRC to break the law.
The NRC must decide whether it is going to follow the rules j or join LILCO in disregard of the law. This is the second time in this proceeding that this kind of test has been presented. On I
March 20, 1984, LILCO filed a surprise low power operating license proposal relying on four non-safety grade diesels. At LILCO's urging, the NRC disregarded GDC 17, and forced the Governments to trial on a grossly unfair schedule. And what 2 Newsday, April 14, 1987, p. 25.
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resulted? The United States District Court enjoined the NRC; and the NRC, belatedly, was forced to admit that LILCO needed to file for an exemption.3 LILCO's Motion and Request merit summary reiection. The Request itself constitutes a clear challenge to the regulations, and no exemption request has been filed. The Motion for expedi-tion is nothing more than a LILCO attempt to deny the Governments their statutory right to a hearing. The Governments urge the NRC to follow the rules -- by summarily rejecting the LILCO Motion and Request.
II. Summary of Re3Donse In the instant Response, Suffolk County, the State of New York, and the Town of Southampton (the " Governments") respond only to the LILCO Motion for Expedited Commission Consideration.
It should be obvious that no one could possibly respond to the merits of LILCO's voluminous Request in so brief a time.
However, since the LILCO Motion basically incorporates LILCO's Request, we necessarily refer to the Request as well in some respects.
3 Egg Cuomo v. NRC, Docket No. 84-1264, D.D.C., TRO issued April 25, 1984, CCH Nuc. Reg. Rptr. 1 20,304, Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-8, 19 NRC 1154 (1984).
- 1. LILCO's Motion and Request challenge NRC regulations and therefore should be summarily dismissed. Although LILCO has asserted boldly (and often) that 10 CFR S 50.47(c)(1) provides a regulatory basis for the Request (LILCO Motion at 2; LILCO Request at 1, 4, 10, 81, 144), the opposite is in fact the case.
Under no stretch of the imagination can Section 50.47(c)(1) be construed as a regulatory basis for LILCO, the sponsor of the i
first-ever " utility" plan, to ascend from 5% to 25% power when material emergency planning issues are outstanding, including whether the mandatory Appendix E " full participation exercise" has occurred. Indeed, Section 50.47(d) makes clear that for power levels above 5%, the full range of emergency planning findings must be made. Under no circumstances can the present voids in the findings be deemed minor or insignificant: the
- February 1986 exercise has been challenged on multiple grounds, and' FEMA itself found five deficiencies and identified many additional areas where corrective action by LILCO is required; LILCO's proposed reception centers are challenged on multiple grounds, and FEMA's RAC review of the reception centers has identified inadequacics; the CLI-86-13 remand has barely begun;
- LILCO has no EBS station and no American Red Cross agreement (another deficiency noted by FEMA); and there are a multitude of l other material issues also outstanding. Section 50.47(c)(1) l clearly was not intended for this sort of situation but, rather, was intanded to address relatively minor situations where the planning standards were not satisfied. Accordingly, LILCO's
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l filings constitute a clear challenge to the regulations. LILCO has sought no exemption. Therefore, LILCO's Motion and Request must be dismissed at the outset. Any other action by the Commission would involve the NRC as aiding LILCO in the pursuit of an unlawful course of action.
- 2. Assuming arauendo that it is proper for the NRC even to consider LILCO's Request, there are multiple reasons why LILCO's Motion must be denied.
i a) LILCO's galg basis for trying to get expedited review of the Request is LILCO's allegation that there,is a critical need for Shoreham's power this summer. Sag LILCO Motion at 2. The NRC must disregard LILCO's claims that there is a critical need for 170 MW of Shoreham's power this summer. The NRC has no expertise whatever in that subject. In fact, it is clear that such need for power decisions are reserved solely to the States to decide.4 In the instant situation, it is clear that Shoreham's power is not "needed" this summer -- or ever.
The New York State Energy Office ("NYSEO") is the entity in New York State which has the most direct expertise and authority regarding the need for power matters. As set forth in the attached affidavit of William E. Davis, Executive Deputy 4 In the context of a review under the National Environmental Policy Act ("NEPA"), the NRC considers the "need for power" issue, but solely in the context of weighing potential NEPA costs and benefits. This is not the issue which is presented by LILCO's Motion and Request.
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Commissioner of the NYSEO, there in sufficient power for Long Island this summer, the situation this summer is not signifi-cantly different from the three previous summers, and there are means -- if LILCO really is concerned -- of augmenting Long Island's power supply in the short term without operating Shoreham. Egg Davis Affidavit, Attachment 1 hereto. Simply put, Shoreham's power is not needed.
Further, even without reference to the NYSEO affidavit, it is clear that the NRC cannot accept LILCO's "need for power" statements. In the April 14 Request, LILCO makes it seem as if there will be calamity if 170 MW of Shoreham's power is unavailable this summer. Egg LILCO Request at 104-16. However, less than one week before LILCO's Request was filed with the Commission, LILCO was telling the public that while in its view power supplies were going to be tight this summer, there are available power supplies to compensate. Thus, on April 8, 1987, William Museler, a LILCO Vice President, reportedly said that LILCO would compensate for any shortfall by purchasing power, beefing up its plants before the summer,'and encouraging conservation. Mr. Museler is quoted:
- We don't expect large problems, but the probability of problems keeps increasing every year as the load continues to grow.
Newsday, April 9, 1987, p. 21.
Thus, LILCO's own words - "[w]e don't expect large problems" -- are sufficient basis alone to reject LILCO's cries of an energy emergency. The NYSEO affidavit further demonstrates '
that LILCO's claims are baseless.. LILCO's Motion, therefore, i must be denied.
b) The LILCO Request relies heavily on new and i
complex PRA analyses which have been at least 18 months in j preparation and which have involved at least seven major outside contractors, plus an alleged " independent" peer review group.
LILCO Request at 6.5 It is absurd in such circumstances for LILCO to suggest that these studies be reviewed by the Govern-ments on a hurry-up basis. As set forth in the attached affidavit of Gregory C. Minor and Steven C. Sholly, a meaninoful l review of the LILCO Request would take perhaps a year to perform, assumino LILCO promptly produces underlying data which are not included in the Request or the appendices thereto and, assumina further, that LILCO cooperates fully with the Governments as they review the analyses. Sag Minor /Sholly Affidavit, Attachment 2 5 The Governments do R21 accept the alleged independence of LILCO's " peer review." At least one scientist from Brookhaven National Laboratory ("BNL") is on that review group. BNL participates in LILCO's emergency plan (LILCO Request at 14) and BNL scientists are members of the Citizens for an Orderly Energy Policy, Inc., a group that has unsuccessfully sued Suffolk County because of disagreement with the County's emergency planning conclusions. Egg Citizens for an Orderly Enerov Policy, Inc. v.
Suffolk County, 604 F. Supp. 1084 (E.D.N.Y. 1985), aff'd, F.2d (2d Cir. March 9, 1987).
hereto. Egg also Public Service Co. of New Hamoshire (Seabrook 4
Station, Units 1 and 2), Docket Nos. 50-443 and 444-OL, ASLBP No.
82-471-02-OL, Memorandum and Order, April 22, 1987, at 27 (ASLB notes the extensive task presented in a review of Seabrook 4
analyses regarding 1-mile EPZ; the Shoreham PRA data are no less formidable than those at Seabrook).
To grant LILCO's request for " expedition" would be tanta-
. mount to granting LILCO authority to operate at 25% power without granting the Governments any meaningful opportunity to contest the issues set forth therein. This would deprive the Governments of their right to a hearing on material issues, in violation of 42 U.S.C. 5 2239(a)(1) and the due process guarantees of the Constitution. This would be like the situation which confronted the Governments in March / April 1984 -- the Miller Board's grossly 4
unfair schedule after the filing of LILCO's surprise low power j diesel pleading on March 20, 1984. As noted earlier, that resulted in a temporary restraining order against the NRC by the
( United States District Court. Egg Cuomo v. NRC, supra. Sag alSO Union of Concerned Scientists v. Nuclear Reculatory Commission, 735 F.2d 1437 (D.C. Cir. 1984), cert denied, 105 S.Ct. 815 (1985).
l Now, without warning, LILCO has come up with another l surorise -- the 25% power license. Again, LILCO has taken unprecedented liberties with tne regulations and, again, has
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filed for no exemption. The Governments trust that the NRC this time will acknowledge from the outset that LILCO must seek an exemption before any party is required to expend resources reviewing the Request. The Governments also trust that the NRC similarly acknowledges from the outset its obligation to afford the Governments a reasonable time for review of any LILCO filing, assuming a proper exemption request is proferred.6 1
, c) LILCO's Request is distinguished by its shrillness
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of its attacks against Suffolk County and the State of New York.
LILCO basically accuses the Governments of improper conduct in failing to help LILCO implement an emergency response plan for Shoreham. As has frequently been the case, however, LILCO grossly misstates the facts, and, even more importantly, grossly misstates the legal situation. LILCO clearly is not happy with the decision of Suffolk County and New York State not to adopt or implement an emergency plan for Shoreham. Indeed, LILCO has sought judicial relief to attempt to overcome the County's posi-l tion. First LILCO sued in the United States District Court for
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l 6 The Governments already have seen signs of NRC Staff I capitulation to LILCO's pressure. Thus, the Staff has already i
scheduled an extraordinary meeting with LILCO for April 30 to review the Request, even though the Commission has not even decided whether the Request will be considered. This is similar to the Staff's actions in 1984, when shortly after LILCO proposed l to use four non-safety grade diesels, the Staff held a special l
" review" meeting with LILCO and immediately announced its support l for LILCO. The parallels between the 1984 due process violations l and the instant situation are obvious. This particularly is the l case since a LILCO/ Staff meeting on April 22 which was not i
scheduled originally even to mention the LILCO Request ended up l covering almost nothing else. Thus, the signs again point to the i Staff acting in haste to become LILCO's advocate.
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the Eastern District of New York to attempt to have Suffolk County's emergency planning resolutions overturned on federal grounds. LILCO lost. Significantly, in response to LILCO's arguments, Judge Altimari stated that Suffolk County had acted rationally in its decision not to adopt or implement an emergency plan for Shoreham. Egg Citizens for an Orderly Enerav Policy, Inc. v. Suffolk County, 604 F. Supp. 1084, 1098 (E.D.N.Y. 1985),
aff'd, F.2d (2d Cir. March 9, 1987).
- Similarly, LILCO sought to overturn Suffolk County's resolu-tions in filings before the New York State courts. In a 1965 decision, however, the New York State Court of Appeals -- the highest State court -- ruled that Suffolk County has no obliga-tion to adopt any emergency plan for Shoreham. Egg Prosoect v.
Cohalan, 65 N.Y.2d 867, 493 N.Y.S.2d 293 (1985).
Finally, LILCO has tried to prepare its own " utility" plan.
But the New York State Supreme Court (February 20, 1985) and the Appellate Division (on February 9, 1987) ruled that LILCO cannot implement its plan. Egg Cuomo v. LILCO, Consol. Index No. 84-4615 (Sup. Ct. Feb. 20, 1985), aff'd, App. Div., Feb. 9, 1987.
What does this mean? It means that Suffolk County and the State of New York have lawfully exercised their police powers and that LILCO is barred from usurping those powers. LILCO~may not like the way the Governments have exercised their police powers,
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but that is not a matter of concern for the NRC. The NRC has no right to second guess the way a coor31nate branch of government-exercises its police powers. Thus, LILCO's repeated cries and whines about the Governments are not only nonsense on the merits, but matters which the NRC must flatly disregard. .The plain fact is LILCO does not satisfy NRC requirements for an operating license.
d) The Governments submit, therefore, that both LILCO's Motion and Request must be denied. The Motion must be Svnied because the sole basis is the alleged need for Shoreham's peger -- a need which does R21 exist. Further, " expedition" is merely LILCO's euphemistic request that the NRC deprive the Governments of a fair opportunity to review LILCO's voluminous filing. The Request must be denied because it clearly challenges.
the regulations.
i If the NRC does not reject both LILCO's Motion and Request at the outset, then the first step is for the NRC to establish i
fair procedures for adjudication of the issues related to both the Motion and the Request. There are both factual and legal
- lesues to be addressed, beginnning first with the need for LILCO to file for an exemption from NRC regulations. The Commission is not equipped to adjudicate these matters in the first instance --
that is the job of the Licensing Board. The NRC should thus direct LILCO to file its documents with the OL-3 Licensing Board
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and direct that Board to proceed in a fair manner and in accordance with the rules -- including the provision of adequate time for review, assuming LILCO first files a legally sufficient exemption request.
III. Discussion A. The Motion for Expedition Must Be Summarily Rejected Because the Recuest Challences the Reaulations LILCO's Motion for expeditious Commission review of the Request must be rejected summarily. The Request which the Motion seeks to expedite is itself grossly out of order. The reasons are multiple.
First, there is no such thing in NRC practice or in the regulations as a " Request" to operate a nuclear plant at any power level. LILCO is thus inventing a new procedural device in order to seek a favor from the NRC. Since this procedure is not sanctioned by the regulations, and since there are no standards to govern the procedural and substantive sufficiency of a
" Request" to operate a plant, the " Request" itself is out of -
order and must be rejected. Rejection of LILCO's Request would obviously moot LILCO's Motion.
i Second, one must question why LILCO filed the Motion and Request directly with the Commission. LILCO knows that the Margulies Licensing Board (i.e., OL-3) has jurisdiction over all
emergency planning matters except for the exercise proceeding.
i Indeed, this was set forth expressly in an October 17, 1986,
" Notice of Reconstitution of Board: Clarification" issued by B.. Paul Cotter, Jr., Chief Administrative Judge of the Atomic Safety and Licensing Board Panel.7 The Governments assume that the reason LILCO disregarded the Licensing Board's jurisdiction is because LILCO strategized that it could get a more favorable hearing before the Commission. Whatever LILCO's motive, filing with the Commission violates established procedure in this proceeding. The proper procedure for LILCO was to file its pleading with the Licensing Board having proper jurisdiction.
Third, LILCO's Motion and the Request should be rejected summarily because they seek relief which the Commission cannot grant. LILCO alleges thtt its Request and Motion are consistent with 10 CFR S 50.47(c)(1). Ett LILCO Motion at 2; LILCO Request at 1, 4, 10, 81, 144. This is absurd. LILCO cites no authority for its proclamation that Section 50.47(c)(1) was designed to cover a " Request" to go from 5% to 25% power with n2 offsite emergency preparedness findings. The reason is clear: there is 7 In this instance, LILCO seems to have tried to be cute. The docket number which LILCO utilizes for the Motion and the Request is Docket No. 50-322-OL, i.e., the general Shoreham operating license docket. However, it is clear that LILCO's Motion and Request relate solelv to emergency planning matters and LILCO's plea for relief seeks relief solely from the alleged rigors of the NRC's emergency planning regulations. Thus, there was no basis whatsoever for LILCO to have not filed with the proper entity, ligt, the Margulies Board.
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no such tuthority.8 It takes a convoluted and irrational reading of the regulatory language to suggest that Section 50.47(c)(1) was designed to permit the licensing of a nuclear power plant at 25% power despite the fact that no findings on offsite emergency preparedness have been made. Clearly, Section 50.47(c)(1) was not designed for such a situation. Rather, Section 50.47(c)(1) was designed for the situation where the planning standards of Section 50.47(b)(1) were generally met but there were certain deficiencies which, given the particular circumstances of the case, could be ignored. Thus, Section 50.47(c)(1), at most, represents an exceedingly limited exemption authority, which cannot be relied upon for the extraordinary relief it seeks. Egg-Philadelohia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-809, 21 NRC 1605, 1610-14 (1985) (exemption request could not be considered only under the 10 CFR S 50.47(c)(1) factors; the Board also had to consider the 10 CFR S 50.12(a) factors).
Indeed, the NRC's regulations undercut LILCO's claim that Section 50.47(c)(1) constitutes authority upon which LILCO's Request could be premised. In Section 50.47(d), the NRC has specified that findings on offsite emergency planning and preparedness are not required for operation at levels under 5%
! 8 Section 50.47(c)(1) has been relied upon where the deficiencies in meeting the Section 50.47(b) planning standards are relatively minor. E.G., Philadelchia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 715-16 (1985).
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power. This means that for all levels of operation above 5%
power, the full range of offsite findings of emergency preparedness are in fact reauired.
r Similarly, LILCO's entire Request is premised on its PRA analyses which purport to demonstrate that the risk and severity of a Shoreham accident at 25% power is sufficiently reduced to permit the licensing of Shoreham despite the outstanding emergency planning issues. Therefore, what LILCO is suggesting in its Request is that the NRC contemplated that Section 50.47(c)(1) can be invoked anytime a license applicant wants to develop new licensing analyses which alter the generic 10-mile EPZ or otherwise alter the application of the Section 50.47(b) plann'ing standards. This certainly is not the case. Indeed, the entire reason for adopting Section 50.47 was to standardize what would be required in a licensing case. Where something out of the ordinary is suggested, the obvious requirement for the appli-I cant is to seek an exemption.
Fourth, one of the issues which continues to be outstanding in the Shoreham proceeding is whether the February 13, 1986, Shoreham exercise constitutes a full participation exercise, as required by 10 CFR Part 50, Appendix E, S IV.F.1. This Appendix E requirement must be satisfied prior to operation above 5%
power.9 Section 50.47(c)(1) applies, if at all, to failures to 9 LILCO asserts that the opportunity to contest the exercise (footnote continued) l t _. - . ~ - - - - - -
satisfy Section 50.47(b) planning standards.10 It provides no authority at all to overcome noncompliance with Appendix E.
In sum, therefore, LILCO's Motion should be rejected because it addresses a " Request" to operate a nuclear plant -- that is,
-it invents a new form of NRC practice not recognized by the regu-lations and not covered by NRC standards. LILCO has but one option under the regulations: file for an exemption under 10 CFR S 2.758 or S 50.12(a). Such a filing would have to be made to the OL-3 Licensing Board.
B. There Is No Need for Exoedition Assuming arouendo that the Commission decides to review the l
merits of the LILCO Request, the question becomes whether there is any basis for the alleged need for expeditious review of the Request. The sole basis alleged by LILCO for such expedition is LILCO's claim that there is "an immediate need for Shoreham's power." LILCO Motion at 2. Egg also LILCO Request at 9 (the only " exigent circumstance" is Long Island's alleged "immediate (footnote continued from previous page) is not relevant to 25% power. Egg LILCO Request at 84, n. 56.
LILCO's assertion is baseless. By its. express terms, the Appendix- E exercise requirements apply to operation above il power. If LILCO seeks to overcome this regulatory requirement, its only recourse is to file for an exemption from the regulations.
10 Egg Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), Docket Nos. 50-443 and 444-OL, ASLBP No. 82-471-02-OL, Memorandum and Order, April 22, 1987, at 8 (Section 4
50.47(c)(1) concerns the Section 50.47(b) planning standards, not other regulations).
need for power"). In fact, LILCO's claim is false. As set forth in the attached affidavit cf William E. Davis, Attachment 1 i
hereto, Shoreham's power in not needed this summer or, indeed, in the future.
i At the outset, it must be stressed that the Commission lacks expertise and competence to adjudicate LILCO's need for power claim. The power supply situation on Long Island is a matter peculiarly within the expertise of New York State, not the NRC.
New York State has studied this matter for many years. Egg Davis Affidavit, paragraphs 4, 7-11. As set forth in the attached affidavit of Mr. Davis of the New York State Energy 4
office, the situation on Long Island is not materially different this summer than in the past two summers. Davis Affidavit, paragraph 6. That is, while there may be tight situations on certain peak power days, the expectation is that there will be no black-outs and, in all likelihood, no brown-outs. Moreover, the quantity of electric power represented.by Shoreham's capacity will not be needed until the 1990s, and this quantity can be i
provided by sources other than Shoreham.
Specifically, the Davis Affidavit demonstrates the following:
- 1. Without operation of Shoreham, it is predicted that the reliability of electricity service on Long Island during the summers of 1987 and 1988 will not be significantly different from the last two years. Over the past two years, LILCO has had adequate electricity reserve and has had only one voltage reduction -- and that was not during peak load periods. Thus, the NYSEO concludes that there is no need for the emergency relief which LILCO seeks in the form of operation of Shoreham.
Davis Affidavit, paragraphs 6, 28.
- 2. LILCO, in its Request asserts the need for a 30%
reserve margin. However, the standard reserve margin in New York State is 18% and LILCO is projected to have a reserve margin of 24% and 25% over the next two summers. Such a reserve margin is consistent with the margin which it has had the last two summers.
Again, therefore, there is no basis to accept LILCO's assertion of a need for Shoreham to operate this summer. Davis Affidavit, paragraphs 9-16, 22-25.
- 3. LILCO asserts that the only reason it did not experience greater problems in 1986 was because it did not exper-ience its " normal 700 megawatt unavailability." Egg LILCO Request at 110. However, the average level of unavailable capacity
, experienced by LILCO during peak periods of 1983-1986 was 468 1
megawatts, not the 700 megawatts claimed by LILCO. Davis Affidavit, paragraphs ~17-21.
- 4. In the event that an actual energy shortage were to develop this summer, there are in fact alternatives which could be implemented to rapidly increase LILCO's electrical capacity.
Chief among those alternatives is use of gas turbines on barges which are available to Consolidated Edison Company and which the State could direct to be used as part of LILCO's generating capacity. The State would only so direct in the event that there were a need. As of now, the State perceives no such need, but it certainly has the power to make that decision when and if the need should arina. Davis Affidavit, paragraph 29.
- 5. LILCO assumes (with no discussion) that NRC approval of its " Request" would reliably result in 170 MW of additional power for Long Island. In-fact, it is unlikely that Shoreham (or any other new BWR) would operate reliably during startup. Thus, Shoreham's power does not constitute a reliable means for LILCO to address LILCO's own claims about Long Island's alleged energy needs. Davis Affidavit, paragraph 27.
For the foregoing reasons, it is clear that LILCO does not show a power supply "need" for Shoreham to generate electricity at any level of power this summer.ll 11 LILCO also devotes discussion to the alleged need to reduce Long Island's dependence on foreign oil. Egg LILCO Request at 117-21. This is totally irrelevant -- the NRC's jurisdiction relates to safety. Further, assuming arcuando that this factor is relevant under Section 50.47(c)(1), it is absurd for LILCO to suggest that allowing Shoreham to operate at 25% power during summer peak load months would materially address the alleged dependence of Long Island on foreign oil.
C. Extensive Review by the Governments Will Be Required in 4 Order to Respond to LILCO's Reauest Again, assuming arauendo that the Commission decides that LILCO's Request merits review, the question arises how long such review would take. LILCO, unilaterally and without foundation, suggests via its Motion that such review can be rapid.
LILCO has admitted that it spent 18 months working on its Request, and that the services of at least 7 major consultants were required. There is no basis in these circumstances, I
therefore, to suggest that any party who wishes to contest LILCO's Request should be expected to review that Request on an artificially constrained time schedule. Anything short of giving the Governments sufficient time to address the substance of i LILCO's Request and to reply meaningfully would be a deprivation i
of due process of law and a violation of the Governments' statutory right to a hearing.
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- The Governments have requested Gregory C. Minor and Steven C. Sholly of.MHB Technical Associates to read the LILCO Request and to set forth in summary form the work which would need to be performed in order for the Governments to review LILCO's Request in a meaningful manner and to prepare to adjudi-4 cate the merits of the Request. Their views are set forth in Attachment 2 hereto. In summary, MHB states the following
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- 1. Although LILCO's Request is voluminous, in fact most pertinent data which are required in order to perform a meaningful review thereof have not been produced by LILCO. Thus, the first step is for LILCO to produce the many underlying studies, assumptions, analyses, etc., from which its Request stems. Minor /Sholly Affidavit, paragraphs 4(a), 5-6, 9.
- 2. Once the necessary data have been obtained, extensive review will be necessary. The Commission is referred to the Minor /Sholly Affidavit, particularly paragraphs 4(b), 7-8, 10-11, in which the steps are set forth in detail. This review --
assuming that LILCO cooperates fully in providing requested data and affords the Governments access to the Shoreham plant and Shoreham personnel and consultants who performed PRA analyses (Minor /Sholly Affidavit, paragraph 7) -- will require approxi-mately 12 to 18 months. Minor /Sholly Affidavit, paragraph 13.
- 3. Based upon a preliminary look, Messrs. Minor and Sholly have identified reasons for concern whether the LILCO analyses are accurate and conservative, and whether they support the extraordinary relief LILCO seeks. Minor /Sholly Affidavit, paragraph 4(c). Messrs. Minor and Sholly thus conclude:
Based upon our preliminary initial review of the Request, together with our knowledge of nuclear power plants more generally, we believe that there are accidents which can occur at 25% power which have the potential to result in significant offsite radiological consequences well beyond the one-cile circum-ference which LILCO talks about in the
I Request. (Request at p. 57) Given the inherent uncertainties in PRA analyses as well as the level of fission products available for release at 25% power operation, we believe there is no basis to conclude that the outstanding licensing issues which are unresolved are insignificant for Shoreham at 25% power. Rather, we believe it would be contrary to the conservative licensing princi-ples relied upon in NRC practice to permit 25%
operation in the absence of the full array of safety findings traditionally required for operation above 5% power.
Minor /Sholly Affidavit, paragraph 4(d).
l The length of time that would be required for the Govern-ments to perform the foregoing review is in keeping with the difficulties involved in performing a meaningful PRA review.12
- Moreover, the vast majority of LILCO's PRA analysis has never
)
been made public before, and, indeed, LILCO's unprecedented i-Request to operate Shoreham at levels above 5% without compliance
! with emergency preparedness regulations itself comes as a total surprise to the Governments.13 There is no legitimate basis for the Commission to prevent the Governments from having the opportunity to review LILCO's Request as detailed by Messrs. Minor and Sholly, assuming arouendo that the Request is not summarily dismissed.
12 ggg' Minor /Sholly Affidavit, paragraph 8 (discussing Brookhaven National Laboratory guidelines for time necessary for
- a PRA review).
13 LILCO informed the Staff of the Request in advance of its filing. Egg Newsday, April 14, 1987, p. 25. It is questionable
- whether it is appropriate for an applicant to provide information
. to the Staff on a matter central to pending litigation without at i
the same time similarly informing the other parties.
D. Response to Other LILCO Arauments LILCO's Request is filled with additional arguments purportedly in support of its Motion and Request. As noted above, there is not time or opportunity to respond in detail to each of these matters.14 However, a summary response to some of the more noticeable of LILCO's assertions is set forth below.
- 1. LILCO writes a number of times about its allegedly
'"potent and tested" local emergency response organization and how well " trained" that organization is. Ett LILCO Motion at 2. Egg also LILCO Request at 11 (LILCO's personnel are " fully trained to implement [the LILCO] Plan"); 14 (LILCO's personnel are " highly trained and drilled" and their training has been " rigorous").
LILCO also alleges that "the plant is complete, fully litigated
. . . . LILCO Motion at 2. These statements are self-serving mischaracterizations; they are false statements. The Plan is nqt fully litigated, as attested to by the ongoing OL-3 and OL-5 procedings. In these proceedings, LILCO's assertions of an adequately " tested" and " trained" local emergency response organ-14 The Governments do not concede the relevance of all or even most of LILCO's arguments, allegations, and pronouncements. For instance, LILCO tallies up the number of administrative judges and hearing days that have been devoted to Shoreham. LILCO Request at 2-3, 8-9, 122-27. This has no relevance to the instant matter and merely punctuates LILCO's filing with grade-school minutia. The only relevant issues are whether LILCO's Motion should be granted, whether the entire LILCO submittal must be summarily dismissed due to LILCO's failure to seek an exemption, and assuming that some consideration of LILCO's Request is appropriate, what fair procedures will be established.
ization are directly at issue. The Governments contend, and are demonstrating, that LILCO's local emergency response organization is impotent, untested, unreliable, and unworthy of being taken seriously.
For example, in the ongoing exercise litigation, the Govern-ments contend that the exercise of LILCO's organization on February 13, 1986, was grossly deficient in scope and that, even despite the deficient scope, the "results" of the exercise demon-strate that LILCO/LERO is incapable of responding effectively to a Shoreham emergency. No decision has been reached by the OL-5 Licensing Board regarding these matters; indeed, some issues --
Contentions Ex 15 and 16 regarding the scope of the exercise and Ex 50 regarding LILCO's training program -- have not even yet been litigated.
Moreover, LILCO chose not to mention that the 1986 exercise resulted in five FEMA deficiencies, which "are demonstrated and observed inadequacies that would cause a finding that offsite emergency preparedness was not adequate to provide reasonable assurance that appropriate protective measures can be taken to protect the health and safety of the public . "
. . . Egg FEMA's Shoreham Post Exercise Assessment, April 17, 1986, at 8. FEMA personnel have also indicated that a remedial exercise of LILCO's plan is required, given these deficiencies plus the many changes i
LILCO has made to its plan since the exercise (for example, three
i 1
l new relocation centers). Accordingly, it is false and misleading for LILCO to claim that it has a " potent and tested" organization for responding to an emergency when the only reasonable inference that can now be drawn is precisely the opposite.
- 2. LILCO complains about the length of time that the exercise proceeding has taken, implying that this is a basis for the Commission to authorize 25% power operation. Egg LILCO I
Motion at 1 (the " emergency planning proceedings . . . are an administrative morass"); LILCO Request at 8-9. LILCO's conclusion is baseless, an empty nonsequitor. Indeed, the exercise litigation is lengthy because there was so much wrong with LILCO's performance on February 13, 1986. It is absurd for LILCO to argue that these failings in the exercise are reason to put Shoreham into operation now. LILCO's argument is reckless.
Moreover, the fact is that the exercise litigation is moving without delay, and its only extraordinary feature is LILCO's persistent whining about the proceeding as a strategem to l foreclose the Governments from making a full record of the failings of LERO in the exercise. LILCO's crying to the Commission about the OL-5 proceeding behind the back of the Frye l Board is entirely improper.
It is misleading for LILCO to fail to reveal accurately 3.
the serious gaps in its emergency Plan.
t
4 a) LILCO lacks an EBS radio station. Instead of an EBS station, LILCO fictionalizes that the existence of the State EBS system is sufficient to permit licensing Shoreham, even
=
though LILCO has no agreement, training, or other arrangement with the State system -- and even though the State is opposed to the operation of Shoreham.
b) Similarly, LILCO lacks relocation centers; and those centers which it proposes to use -- the Roslyn, Bellmore, and Hicksville operations centers -- cannot be so used because the existing zoning for those sites prohibits their use as relocation centers. Egg Attachments 3, 4, and 5 hereto.15 c) LILCO does not have relocation centers for school children or special facility evacuees, despite an ASLB holding that this is a Plan deficiency.
d) LILCO does not have hospital emergency plans, despite an Appeal Board ruling that this is a deficiency. Egg 23 4 NRC at 157.
e) LILCO does not have an agreement with the American Red Cross, an agreement which FEMA says is essential.
15 LILCO states (LILCO Request at 96) that its reception centers are adequate for the expected number of evacuees, citing a FEMA guidance memorandum. LILCO fails to disclose that this is a hotly contested OL-3 issue and, thus, that all such purported
" facts" are in dispute.
1
L f) Only one school district in the EPZ is participating with LILCO, and that is the Shoreham-Wading River Central School District which allied itself with LILCO in the a
citizens lawsuit.16 LILCO mentions a few of these deficiencies in passing. In large part, however, it tries to gloss over these as seemingly 2
insignificant details. This cannot be done. The gaps in LILCO's Plan are fatal flaws that cannot be swept aside by the sanctimon-
{ ious jargon of LILCO's Request.
LILCO claims in its Request that it would maintain a 10-mile EPZ during 25% operation. However, with the foregoing gaps in its Plan and the issues still in litigation, there is no basis
- for any finding that this is true. Indeed, at best from LILCO's self-serving standpoint, the NRC must conclude that LILCO's capability to implement its Plan cannot now be determined. The NRC would commit error if it were to permit operation above 5%
power while not able to make favorable findings on the matters.
i 16 It is grossly misleading for LILCO to insinuate that school j planning is adequate because 3 or 4 years ago LILCO met with school officials. Sag LILCO Request at 15. During the February l 1986, exercise, only the Shoreham-Wading River Central School District participated. LILCO did not even try to get the other districts to participate, because it knew they would not. Egg Davario OL-5 Deposition at 80; Weismantle OL-5 Deposition at 18-39.
! I j
t 4
- - - . +, .y,_, , , - - ,, ,-m- ,,wm
- 4. LILCO relies repeatedly on the Commission's unfounded and unwarranted decision of July 24, 1986, (CLI-86-13) where the Commission, without any basis in the record, ruled that Suffolk County and New York State in an emergency would use LILCO's Plan.
E.a., LILCO Request at 4, 17, 86, 89-94.
_ LILCO has recently filed a Motion for Summary Disposition on the remanded " realism" issues before the Margulies Licensing Board. A response to that LILCO motion is not even due to be filed until May 11.
Accordingly, everything stated by LILCO concerning this matter should be disregarded as irrelevant and self-serving specula-tion.17 One example will suffice. LILCO fabricates the proposition that County police officers would " team with trained LERO traffic 1
guides, or authorize the LERO workers themselves to control traffic." LILCO Request at 91. This statement is baseless and reckless. First, the police could H2A allow LERO personnel to direct traffic. Egg Cuomo v. LILCO, supra (slip op. at 12-13)
("any attempted delegation of police power to LILCO would amount to an unlawful delegation of governmental powers . . . . ")
(emphasis added). Second, it is deliberately distortive for
! LILCO to claim that County police would " team" with LERO. The Suffolk County Police have testified repeatedly over the last 1
three years that LERO's Plan is meritless and its personnel 17 The Governments emphasize herein that they continue to disagree strenuously with CLI-86-13. It is clearly an unlawful order that creates a fiction of preparedness where and when none exists.
unskilled and untrained. Even assuming arcuendo the " realism" fiction, there is not even make-believe evidence to hypothesize a
" team" of County police and LERO.
- 5. LILCO claims that the Governments' failure to cooperate with LILCO is " wholly unjustified" because the Licensing Board has found emergency planning to be " feasible" on Long Island.
Egg LILCO Request at 12, 134. This is nonsense. First, the Governments' position is fully justified in fact and in law.
Indeed, the courts have upheld the Governments' actions. Egg Citizens, supra, 604 F. Supp. at 1098; Prosoect v. Cohalan, supra. Second, LILCO premises its claim that emergency planning is feasible for Shoreham on unfounded dictum from the Licensing Board's August 26, 1985, Concluding Partial Initial Decision.
Egg LBP-85-31, 22 NRC 410, 427 (1985). The Board's statement was gratuitous at best: it was not a findina on any contention; it had net been the subject of litigation before the Board because the litigation focused on the contents of LILCO's Plan; and, it was not a topic that the Board raised before the parties or requested the parties to address.
Indeed, the closest contention to alleging the impossibility l of effective emergency planning for Shoreham was Suffolk County's Contention 22, which alleged that the emergency planning zone for Shoreham had to be greater than 10 miles and perhaps as large as 20 miles. The Licensing Board rejected this contention as a
challenge to the NRC's regulations. Interestingly, the Board rejected as a challenge to the regulations the use by Suffolk County of the very kinds of PRA analyses which LILCO now relies
- upon in its Request. If the County cannot rely upon such analyses for its case absent seeking an exemption, then certainly LILCO cannot use such analyses either.
- 6. LILCO continues to refer to the emergency planning disputes on Long Island as " artificial issues created solely by the refusal of County and State officials to participate in off-site emergency planning . . . .
LILCO Motion at 2. This is a gross misstatement. The disputes related to emergency planning on Long Island are substantive issues caused by LILCO's intransi-gence in seeking to operate Shoreham over the lawful police power objections of the Governments and the opposition of 80 percent of Long Island's residents. LILCO made a conscious decision to i
fight the Governments by pleading for favors from the NRC.
LILCO's strategy has not worked, and cannot work, because the
- obstacle to the operation of Shoreham is LILCO itself. The LILCO emergency Plan is illegal and cannot be implemented. The State Supreme Court and Appellate Division have so ruled.
i
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{ 7. LILCO writes of the Governments' alleged refusal to participate in emergency planning for Shoreham. This is another deliberate LILCO mischaracterization. The County's extensive studies, analyses, surveys, hearings, and deliberations in 1982-i l
b 83 and the State's Marburger Commission studies and deliberations in 1983 demonstrate the seriousness and thoroughness of the State's and County's participation in emergency planning. The County even had a draft emergency plan prepared by a team of experts over an 8-month period in 1982 and at a cost of $600,000.
LILCO simply disagrees with the conclusions drawn by the County and State after such vigorous participation. LILCO's disagree-ment with the outcome of the County's and State's participation in emergency planning, however, does not give LILCO the right to deny and distort the facts.
LILCO also accuses the County and State of changing their positions from alleged support for Shoreham to opposition. LILCO Request at 127-37. LILCO's accusation is nonsense. When TMI occurred, Congress and the NRC required State and local emergency preparedness as a condition of licensing. Before TMI, Congress and the NRC did not. The change of position was thus that of Congress and the NRC. All that the State and County did was to respond forthrightly to the directive of Congress and the NRC that State and local emergency preparedness be upgraded and genuine. Teams of NRC personnel travelled the country imploring State and local governments to take emergency planning seriously.
Now that New York State and Suffolk County have done so, LILCO is dissatislied. LILCO has no recourse but to acknowledge that it has wrongly sought to operate Shoreham over the lawful objections of the State and County.
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IV. Conclusion For the foregoing reasons, LILCO's Motion for Expedited Consideration and LILCO's Request for Authorization to Operate Shoreham at 25% Power must be summarily rejected. LILCO's only option to pursue its Request is by filing a motion for an exemption fron NRC regulations. Assuming grauendo that LILCO's Request is not summarily rejected, there are legal and material factual issues in dispute and a licensing board will have to be established to hear from the parties and to fix. procedures for the adjudication of these legal and factual disputes.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788
e N
Herbert H. Brown Lawrence Coe Lanpher Michael S. Miller KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County Fabian G. Palomino /
Special Counsel to the Governor l
of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York b_ _
Stephen B.'Latham /
Twomey, Latham & Shea P.O. Box 398
' 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton 34 -
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