ML20209H196
| ML20209H196 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/05/1985 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20209H194 | List: |
| References | |
| ALAB-818, OL-3, NUDOCS 8511110026 | |
| Download: ML20209H196 (24) | |
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LILCO, ~ Novembsr 4,1985 Reprinted, November 5,- ' 1985 :
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- UNITED STATES OF AMERICA _ M NUCLEAR' REGULATORY COMMISSION c
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LONG ISLAND LIGHTING COMPANY . ) Docket No. 50-322-OL-3 .
. . ) (Emergency Planning
-(Shoreham Nuclear Power ' Station ) Proceeding)
- Unit 1) )
i 1.
LILCO'S PETITION FOR REVIEW OF ALAB-818 Long Island Lighting Comoany (LILCO), holder of a low power
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operating licens'e and applicant for a full power license for the Shoreham Nu-clear. Power Station,, petitions the Commission to review 'and reverse the Ap-peal- Board's October 18, 1985 decision, ALAB-818, on the ground that it is incorrect on important grounds of law and policy.
ALAB-818. would deny LILCO the legal-authority. to take offsite ra-
'diological emergency- response measures that the Commission requires be
'taken, that LILCO can -in fact take, and that state and local governments
.have refused to take. If ALAB-818 becomes law, Shoreham -- a plant that is complete, safe,1/ and finished with low power testing -- cannot receive a full l
1/ The ~ plant's basic safety has been approved by a process involving e - operating' license hearings in virtually continuous session since the spring of 1982, in what-is probably the lengthiest and most arduous licensing proceed-ing in this Commission's histor9 The plant's basic design and construction were approved in late 1983, after 116 days of live proceedings, in a massive Partial Initial Decision, LBP-83-57, whose slip opinion and findings of fact (footnote continued)
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-g power license without governmental participation in emergency planning; and the Commission will have ceded its historic preemptive jurisdiction over ra-diological health and safety to veto by state and local governmants. A LA B-818 conflicts with statutory and decisional precedent, ignores the record in this case, and could have dire consequences for Shoreham, for this Commis-sion, and for the nuclear industry generally. The Commission should exer-cise its discretion under 10 CFR S 2.786 to review ALAB-818.
- 1. Summary of Decision to be Reviewed ALAB-818 decides LILCO's appeal of one aspect of the Licensing Board's two-part decision on Shoreham emergency planning issues, LBP-85-12 and LBP-85-31.2/ On the strength of 81 days of live proceedings and a record involving over 7500 pages of prefiled testimony,16,000 pages of tran-
- script and 200 exhibits compiled over the period from December 1983. to June 1985, LBP-85-12 and LBP-85-31 resolve essentially all factual issues in LILCO's favor.3/ Only on issues relating to legal authority to perform offsite (footnote continued) total 1401 pages. The published version of the decision, containing only the opinion portion, is at 18 NRC 445 (1983), aff'd, ALAB-788, 20 NRC 1102 (1984), approved, letter from Samuel J. Chilk to Herbert H. Brown, April 18, 1985. The plant's emergency diesels were approved following 46 days of live proceedings, LBP-85-18, 21 NRC~ 1637 (1985). Low power operation was ap-proved pending certification of the diesels after 21 days of live proceedings before the Licensing Board, LBP-84-35A, 20 NRC 920 (1984), LBP-84-45, 20 NRC 1343 (1984), aff'd in pertinent part, ALAB-800, 21 NRC 386 (1985),
CLI-85-1, 21 NRC 275 (1985), CLl-85-12, 21 NRC 1587 (1985).
2/ The first portion of the Licensing Board's decision treats all factual is-sues except LILCO's proposal to use the Nassau County Coliseum as a recep-tion center for evacuees. LBP-85-12, 21 NRC 644 (April 17,1985). The sec-ond portion treats only the Coliseum issue. LBP-85-31, 22 NRC 410 (August 26, 1985). Both portions treat legal authority issues later reviewed in ALAB-818.
3/ The issues litigated ran the full gamut of emergency planning, including: the size' and configuration of the EPZ; the composition, training, (footnote continued)
emergency' planning functions 4/ did the Licensing Board find against LILCO.
The legal authority issues at Shoreham arise out of the vagaries of local politics, including local electoral results, rejection in late 1981 of a compre-hensive settlement agreement supported by the county executive, and in-creasingly strident pressures from local antinuclear groups. The result was a reversal of several years of official previous support for Shoreham on emer-gency planning grounds.5/ This reversal culminated in February 1983 reso-lutions by the county legislature purporting to find emergency planning to be impossible on grounds of radiological health and safety,g/ and therefore (footnote continued) equipping, credibility and role consistency of the Local Emergency Response Organization (LERO) created by LILCO to substitute for Suffolk County and New York State personnel who would normally participate in emergency plan-ning; LERO's mobilization and communication capabilities; notification of the general public; content and credibility 'of publi- information brochures, EBS messages, and other public information from LERO generally; making pro-tective action recommendations; evacuation time estimates for general and special populations under normal and adverse conditions; effect of spontane-ous evacuation (" shadow phenomenon"); use of sheltering; provisions for evacuees in reception / relocation centers; and ingestion pathway (50 mile EPZ) measu res. At the Board's initiative, issues related to the effect on LERO's functioning of a 1984 LILCO strike were also tried.
4/ In addition to the legal authority issue per s_e, the Licensing Board de-cided against LILCO on two closely related issues: the absence of a state plan, and conflict of interest.
5/ The current Shoreham-emergency plan, for example, evolved from a plan originally developed by Suffolk County in 1981 under contract with LI LCO.
g/ The county legislature's conclusions, reached after tumultuous legisla-tive hearings in early 1983, were based on a late 1982 report prepared by county consultants and employees evaluating the feasibility of various pro-tective actions in the event of a serious radiological emergency at Shoreham.
The report made use of probabilistic-risk-assessment methodology, altered certain assumptions and inputs - principally, different source terms and dis-persion coefficients -- and attributed different significance to EPA Protective Action Guideline numbers than is typical of reports used for NRC licensing purposes. The resulting analysis concluded that for a large release at Shoreham it would be necessary to protect an area 20 miles in radius, rather (footnote continued)
l' .
. ~ 4-declaring as county policy that the county (1) would withhold .all its re-sources from participation in Shoreham offsite emergency planning and (2) would oppose 'any -such efforts by other parties. New York followed suit.7/
(footnote continued) than .the approximately 10 miles called for by NRC regulations; that timely evacuation of such an area could not always be assured in the event of.a fast-breaking accident; and that sheltering was not an acceptable alternative protective action. On this basis it concluded that adequate emergency plan-
. ning could not be assured as a matter of fact at Shoreham. The county legis-lature implemented this conclusion in Resolution 111-1983, attached. The county thereafter spent the lengthy NRC hearing process unsuccessfully trying to convince the Licensing Board of the rectitude of its position on the merits. It is undeniable that the county reached a policy position on. the basis of substantive judgments about radiological health-and-safety matters --
i.e., matters within the Commission's historical area of expertise and suprem-acy; that these substantive judgments have been rejected on the merits in Li-censing Board proceedings; and that any remaining basis for the county's po-
-sition therefore definitionally requires the exaltation of its views on radiological health and safety over the Commission's.
7/- So far as New York State is concerned, until Governor Cuomo took of-fice in 1983 the State also had been openly supportive of Shoreham' on ~ emer-gency planning issues. Indeed, outgoing Governor Carey was prepared in the fall of _1982' for the New York State Disaster Preparedness Commission to approve the. Shoreham offsite emergency plan' developed in .1981 by Suffolk County. When the newly hostile Suffolk County government sued in-December 1982 to block the DPC from even meeting to consider the plan, the State supported LILCO in seeking, ultimately unsuccesfully, to have the DPC meet. After Governor Cuomo took office, in early 1983, New York State's posture changed rapidly. The emergency planning proposal never resurfaced. . The New York State Attorney-General supported Suffolk Coun-ty's motion to terminate the. NRC emergency planning proceeding in the i spring of 1983 and New York acted in irreconcilable ways toward Shoreham and partially state-owned Indian Point 3: when the Rockland County govern-ment refused to participate in offsite emergency planning at Indian Point in
-the summer of 1983, Governor Cuomo supplied state resources and personnel for a compensating plan. Almost simultaneously, he indicated that he would not impose a state-sponsored emergency plan for Shoreham over the opposi-tion of Suffolk . County. Since entering the litigation actively at the beginning of 1984, the state's tactics have included the following: unplugging its emer-gency phone to Shoreham so that the state could claim there were inadequate communications; refusing to allow public buildings to be used as relocation centers for evacuees despite the use of state buildings for this purpose at other nuclear sites in New York; and attempting to obstruct LILCO's planning i efforts by correspondence from state officials to people whose cooperation is typically a part of emergency planning.
F .
r s Faced with this governmental boycott, LILCO formed its own Local Emergency Response Organization (LERO) in order to meet NRC emergency response requirements. Composed of approximately 2140 persons to fill ap-
- proximately 1700 billets (including shift changes), LERO has been an organi-
. zational and physical. reality since mid-1983.8/
Besides ; arguing, unsuccessfully, that LERO's efforts were inadequate in fact to satisfy NRC requirements, particularly 10 CFR S 50.47, Suffolk l
County and New York State ~ contended that LERO, as a nongovernmental or-ganization, lacks legal authority under New York State law to perform various functions necessary to implement an emergency plan that satisfies NRC regu-e lations. . This latter argument takes two forms: first, that various specific LERO functions involving public communication, protective action recommen-
- dations, traffic facilitation and the like violate various ' garden-variety state
- laws and local ordinances not enacted with nuclear regulation in mind;9/ and second, that performance of quasi-governmental functions by a
, nongovernmental organization violates inherent " police powers" reserved ex-clusively to the state, irrespective of whether such exercise conflicts with
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specific statutes or ordinances. 'The county and state were ultimately I
f 8/ LERO consists mostly, but not entirely, of LILCO employees. In sup-1 - port of LERO, LILCO has reached agreements with the Department of Energy, the Red Cross, the U.S. Coast Guard, the Federal Aviation Administration,
- one aircraft company, -11 ambulance companies,13 radio stations, and 12 bus companies (a total of 1255 buses and 1982 ambulances /ambulettes). It has ne-
, gotiated with 3 hospitals, 9 nursing and adult homes, 32 schools,13 nursery schools, and 14 facilities for the handicapped. It has set up 89 sirens for full coverage of the EPZ, distributed tone alert radios to 190 facilities, and estab-lished a communications network, complete with pagers and 24-hour coverage,
'for its emergency workers . It has established a continuing training program that has logged over 50,000 hours0 days <br />0 hours <br />0 weeks <br />0 months <br /> of field drills. It regularly mobilizes 1000 people or more for drills.
9/ The laws in question prohibit such acts as joyriding, impersonating a g - public officer, and dispensing fuel without a license.
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. successful- in ' persuading a New York State trial court to accept their general
" usurpation" argument.1_0/ .
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LILCO therefore asked the Licensing Board and then the Appeal Board to authorize an operating license for Shoreham despite the state judge's ruling and advanced two principal reasons in support. First, the. Atomic En-ergy Actiand successor legislation specifically authorize a utility emergency plan arid preempt state laws that would prohibit one (the " legal authority" ar-gument) . Second, since both state and county governments would respond in
' fact in a real emergency, any lack of " legal authority" on LILCO's part in a real emergency would be cured (the " realism" argument).H/
ALAB-818 flatly rejects each of these arguments. It holds that the state-law restriction's on LILCO's exercise of its emergency plan are not pre-
- empted by federal law. Further, it rejects LILCO's " realism" argument, hold-
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ing that even if LILCO were assumed to' have the legal authority to implement its offsite-plan itself, and even if governments would agree to participate in -
the. event of an actual emergency (though not in advance preparation for one),H/ emergency planning on this basis would lack sufficient prior 10/ -
Cuomo v. LlLCO, Consol. Index No.84-461 (N.Y. Sup. Ct., Feb. 20, 1985). The court made no effort to determine whether the specific statutes adduced oy Suffolk County and New York State avtually conflicted with the activities in the LERO plan, but rather rested on a broad " usurpation" theo-ry.
11/ LILCO also advanced a third reason: -that some of the functions that Uguably cc.nflicted with state law (principally, traffic control functions) are
< simply not required by NRC regulations (the " immateriality" argument).
LILCO raised each of these arguments before the Licensing Board and _ also before the Appeal Board in LILCO's appeal from the Partial Initial Decision on Emergency Planning of April 17,1985, LBP-85-12. They were argued in two briefs to the Appeal Board. LILCO's Brief Supporting its Position on Appeal from the Partial Initial Decision on Emergency Planning of April 17, 1985 (June 3,1985) and LILCO's Reply Brief on the Legal Authority, Conflict of Interest, and State Plan issues (July 24, 1985). They were argued orally.on August 12, 1985.
-E/ This is in fact the situation, at least with Suffolk County, where the county executive-has agreed by letter to use all county resources to respond to an actual emergency.
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4 e coordination 'and cooperation at all levels of goverment. The Appeal Board also denied LILCO's request for a hearing on the " realism" argument, holding that it. raised no substantial factual issues.13/
- 2. Errors in ALAB-818
. 1 ALAB-818 is -incorrect in five principal respects.. First, it misreads i federal preemption ' law generally by permitting the substantive views of local and state governments to take precedence over the conclusions of the Com-mission on a matter within the Commission's expert jurisdiction, the protection
. of the radiological health and safety of the public through offsite emergency planning. Specifically,i ALAB-818 misre' ads the Supreme Court's decisions in Pacific Gas & Electric Company v. State Energy Resources Conservation and
. Development Commission, 461 U.S.190 (1983), and Silkwood v. Kerr-McGee Corporation, 464 U.S. 238 (1984). In those cases the Supreme Court affirmed the NRC's prima'cy in matters of radiological health and safety but declined to construe that primacy so as to interdict a state siting statute based on eco-nomic and other nonradiological gounds (PGSE) or to prevent enforcement of traditional state tort remedies (Silkwood). ALAB-818 overlooks dispositive-differences in context,14/ motive 15/ and effect16/ between the matters v
p/ The Appeal Board rejected as well LILCO's " immateriality" argument, partly on the basis that it believed all the measures proposed by LILCO were l actually necessary under Shoreham's facts, and partly on the basis that the argume.M did not, in any event, resolve certain legal-authority issues such L as command and control.
_1_4/ The siting statute at issue in PGLE applies only prospectively and then L only once, prior to plant construction. By contrast, the ability gf states and localities to interdict emergency planning does not even mature until-a plant has been fully constructed, vast amounts of capital committed, and alterna-
.tives forgone, and is thus inherently retroactive; and it recurs throughout
- the operating life of the plant. The tort law remedies at issue in Silkwood af-fact only the state-law consequences of &ctions attributable to an NRC licens-ee, and do not involve direct interdiction of Commission judgment at all.
15/' The Supreme Court found in PGSE that the statute under consideration had a sufficient nonradiological rationale and declined to speculate further (footnote continued) ,
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+ decided there and those at issue here. The unavoidable fact is that New c-4 York State and Suffolk County are attempting here to veto the Commission's substantive safety judgment about a licensable plant,-irrespective of the
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facts, by arbitrarily refusing to fulfill the role presumptively entrusted to them by the Commission's regulatory scheme.E/
1
-(footnote continued)
' into motivation. it is beyond credible cavil in this case, however, that the actions of the Suffolk County legislature were based on the substitution of its members' own judgment about radiological health and safety issues for that of the Commission (see footnote 6, supra and attachment, Suffolk County Reso-lution 111-1983), and that the statements of Governor Cuomo evince the same motive -(see, e.g., letter, Mario M. Cuomo to B. Paul Cotter, July 11, 1983, attached; Complaint for. Declaratory Judgment in Cuomo v. LlLCO, N.Y. Sup.
Ct. Consol. Index No.84-461).
16/ The effect-of the California statute in PG&E may have included inter-diction of construction of nuclear power plants on valid state-law grounds.
The effect of the state and-local actions sanctioned by ALAB-818, by con-trast, is to interdict operation of fully constructed' plants found safe by the NRC, simply because of states' and localities' unwillingness to perform actions perfectly lawful if performed by them, sufficient in the NRC's eyes regardless 4 of who performs them, and capable of being performed by other entities. _ The LSupreme Court hinted broadly that it would not tolerate the indefinite exten-
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sion of the exception permitted in PGLE when it stated:
L
, -The Atomic Energy Act does not give the NRC com-prehensive planning responsibility. Moreover, [the
, California statute) does not interfere with the type State regulations of plant that could be constructed.
- which affected the construction and operation of fed- .
erally approved nuclear power plants would pose a.
different case.
PG SE, 461 U. S. at 223 n . 34.
. H/ . At issue is the ultimate shell game. Almost a year ago, a federal dis-
~ trict court judge accepted the representations of Suffolk County that it was not intending to substitute its judgment for that of the NRC on offsite ra-diological planning issues, and thus not intending to regulate a nuclear power
- plant. on safety grounds, through its resolutions refusing participation in
- emergency planning for Shoreham. Accordingly, he found the county's reso-lutions not preempted by the Atomic Energy Act, and dismissed the com-plaint. COEP v. Suffolk County, S04 F. Supp.1084 (E.D.N.Y.1985). What
, ~ ALAB-818 does, of course, is give the resolutions ' exactly the effect Suffolk l County had disclaimed for them, by allowing the fact of the county govern-ment's refusal to participate in emergency planning at Shoreham to operate as a fatal defect in _ emergency planning for the plant.
- -_- ~_ __ _. _ _ _ _ _ _ - . _ . _ _ _ . _ _ ______ __ _ _ _ ..
Second,. ALAB-818 simply misreads out of existence the " utility plan" provisions contained in every piece of legislation -- three successive NRC Authorization Acts 18/ since 1980 -- requiring the NRC to condition operating licen'ses on a demonstration of offsite emergency preparedness. Each of these statutes ' presumes the existence of a state or local emergency preparedness plan approved by FEMA. ' Absent such a plan, however, each statute ex-
- 2. pressly ' authorizes the Commission to license plants on the basis of a " State,
+
local or. utility plan which provides adequate assurance that public health and safety is not endangered by operation of the facility concerned . . . ." Com-mittee report language makes clear that Congress regarded the " utility plan" provisions as a solution to the "potentially significant problem" of noncooperating states and localities, and that it was intended to prevent utilities from being " penalized" by such noncooperation.19/ The Appeal .
Board's interpretation, which would restrict utility plans to an adjunct func-
. tion ~ in aid of_ otherwise inadequate state and local plans, fails to account ei-ther for the unrestricted language of the Authorization Acts or for the sub-y version of federal regulatory purposes by states and localities under the
- guise of their police powers.20/
t
~ 18/ Pub. L.96-295, Sec.109, 94 Stat. 780 (1980) [1980 Authorization Act);
Pub L.97-415, Sec. 5, 96 Stat. 2067, 2069 (1983) [1982-83 Authorization i Act]; Pub. L.98-553, Sec.108, 98- Stat. -2825, 2827 (1984) [1984-85 Authori-zation Act].
19/ H. R. Rep. . No. 96-1070, 96th Cong. 2d Sess. 27 (1980), reprinted in 1980 U.S. Code Cong. r, Ad. News 2260, 2270.
2_0/ The Appeal Board would presumably permit a utility plan to operate
- even without a state or local plan where state or local police power restric-tions did not inhibit it. Slip op. at 24-25. However, this suggestion is illu-sory since the same types of restrictions as have been invoked in New York exist in every other state in the nation. A multitude of state court decisions hold that a state's general police powers cannot be abridged, weakened or contracted away. See, eA, Gay Investment Co. v. Texas Turnpike 7
(footnote continued) 1 , , . . - , . -
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Third, the Appea.! Board's decision ignores the history'of this proceed-ing. Two and a' half years ago, under circumstances materially the same as
! .those prevailing today, Suffolk County requested the Commission to interdict the holding of emergency planning hearings at the outset, claiming exactly what it claims today -- that without its legal imprimatur (which it had 'no in-tention of bestowing), any offsite emergency plan sponsored by LILCO was definitionally doomed. The Commission denied the motion to terminate the proceeding and, noting its obligation under NRC Authorization Acts to review utility-only plans, ordered the conduct of evidentiary hearings. CLl-83-13, 17 NRC '741 (1983). Though the Commission did not rule directly on the legal-cuGority issue raised in the County's motion, logic would have com-
' pelled the-Commission to have granted that motion if it agreed with the argu-4 ment, :since the argument is categorically dispositive of the ultimate. issue if the county is correct. Later that summer, in another opinion, 'the Commission characterized the emergency planning issues at Shoreham as " difficult."
However, the Commission continued, "they do not appear to us to be categorically unresolvable." CLI-83-17,17 NRC 1032,1034 (1983) (emphasis added). Again, 'if the Commission had agreed with the county's legal-authority argument, it would have had no logical choice but' to consider the
. legal-authority issues to be categorically insoluble.21/ Finally, the Licensing (footnote continued)
Authority, 510 S.W.2d 147 (Tex. Civ. App.1974); Carty v. City of Ojai, 77 Cal. App.3d 343,143 Cal. Rptr. 506 (Cal. Ct. App.1978); Littell v. City of Peoria, 374 Ill. 344, 29 N.E.2d 533 (1940). Moreover, virtually all state
. codes contain provisions cut from the same generic cloth as those cited as ob-i- stacles to'LILCO in Cuomo v. LILCO, for example, those prohibiting the unauthorized use of a motor vehicle [ Cal. Penal Code S 499b (West 1970 &
Supp.1985); Tex. Penal Code Ann. S 31.07 (Vernon 1974)] and those autho-i rizing police officers to remove disabled vehicles from the roadway [Va. Code
$$ 46.1-2, .1-3 (1980 & Supp. 1985); lli. Ann. Stat. Ch. 951/2, S 11-1302
-(Smith-Hurd 1971 & Supp.1985)].
-21/- Disagreement with County's legal-authority argument, on the other hand, does not compel issuance of a license. LILCO could still have failed to
- 3. - ,
Board's lengthy and detailed opinion, though still on appeal, provides fine-graine'd evidence of the sufficiency in fact of the emergency planning struc-
. ture erected by LILCO'. ALAB-818 cannot be reconciled with any of this.
Fourth,: acceptance of the Appeal Board's arguments in ALAB-818 would give~ rise to serious due process problems in one or more of the following fashions. The Authorization Acts specifically permit utility plans, and the Commission stated in promulgating 10 CFR S 50.'47 that it intended for its regulation to be consistent with the statute.22/ If, five years into the' imple-mentation of this important regulation, utilities are to learn that it denies the contingent relief from arbitrary state' and local noncooperation promised by the statute,23/ any attempt to estop challenges to the regulation -riow would deny due process. Moreover,' against the background of the Commission's previous decisions in this case rejecting the county's " categorical" legal-a'u thority argument, the NRC's n post- facto acceptance of that argument now, over two . years and untold costs into this proceeding, would deny due
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process. ' Additionally, denial of legal authority to LILCO in the circumstanc--
-es of this case, if it -ultimately led to a denial of a license and to LILCO's in-I abi!ity to use Shoreham for the purposes to which it has been shown suited, 4-
.would amount to a taking without just compensation.
(footnote continued) meet its factual burden on any one or more of the. issues involving the feasi-bility of emergency planning on Long Island or the sufficiency of its plan.
And that task, as the Commission recognized in CLI-83-13,17 NRC at 743, was the function of evidentiary hearings.
22_/ 45 Fed. Reg. 55,403 col.1 (Aug.19,1980); NRC July 23, 1980, Tr.
12, 85-89.
~23/ Indeed, 'the Commission went to pains to provide its own assurances on this score, both opining that states and localities would in fact cooperate, and 3- stating that in any event, the escape clause of 10 CFR $ 50.47(c)(1) offered all necessary relief. 45 Fed. Reg. 55,404 col.1, 55,417 col.1, 2-3 (Aug.19,
-1980).
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Fifth and finally, the Appeal Board's rejection of LILCO's " realism" ar- ;
r.
. gument, on. ground that it does not adequately imbed advance cooperation and j collaboration at all levels of government, compounds the legal-authority prob-lem. Taken to'its full reach, it could invalidate even the type of stepping by one government into the shoes of an uncooperative government that the Com-f mission permitted at Indian Point in 1983.
- 3. Reasons Why the Commission Should Exercise Review First, the decision could result in license denial, absent governmental l - participation in emergency planning at Shoreham, for a plant that has been proven safe in the most detailed litigation in this Commission's history, on the
- basis of a novel legal theory that is demonstrably incorrect. This profoundly unjust result should obviously. be avoided.
More immediately, ALAB-818 has an adverse practical effect on the. com-pletion of Shoreham's one remaining licensing hurdle: a FEMA-sponsored
- offsite emergency planning exercise. FEMA has recently indicated its will-
. ingness, with the NRC's concurrence, to hold such an exercise by January
. 15, 1986 to demonstrate LERO's actual response-capability; but ALAB-818 stands in the way of FEMA's being able to reach in that exercise the ultimate affirmative safety finding on which the Commission customarily relies.24/
Equally important, there will be no way to contain abuse by states and
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localities of the veto power conferred by ALAB-818 to block plant licensings,
' shut down operating plants, or extort exorbitant concessions from operating utilities simply by withdrawing from emergency planning arrangements.
. Every state has laws like those invoked at Shoreham; every state has an in-herent " police power" doctrine. The decision by a state or locality to 24/ Letter, Samuel W. Speck (FEMA) to William A. Dircks (NRC), October 29, 1985.
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withdraw from emergency planning can arise out of an unlimitable variety of circumstances -- the vagaries of elections; the denouement of policy dis-agreements between sitting governments and utilities; the attempt of govern-ments to appease extreme pressure groups. Under ALAB-818, when these events ever occur, the effect will be automatic: an NRC license is in peril, and.an immediate shutdown likely. Nor will a licensee be able to force and wait -for the result of state-court adjudication. Under ALAB-818 utility plans are illegal right now; no further court decisions are necessary to declare them illegal in, for instance, California, Texas, Illinois, or Virginia. Under the precedent of ALAB-818, the NRC and FEMA will have no choice but to find illegal any utility plan they review. Moreover, any applicant wanting to prepare an offsite emergency plan would, under 10 CFR Part 21 or other NRC reporting requirements, have to disclose its illegality even as it submitted the plan .2_5/
Where some though not all affected governments are willing to help, the emphasis in ALAB-818 on advance collaboration with all affected governments will limit future possibilities for compensating arrangements like those adopted for Indian Point in 1983. Just how far ahead, and how formally, must a gov-ernment be willing to commit itself to override the opposition of a coordinate government? Similarly, many plants have 50-mile EPZs lying in more than one state; some even have 10-mile EPZs lying in more than one state. Where planning zones occupy more than one state, and cooperative governments are to be found in some but not all affected states, which state's rights are to be given primacy -- those of the cooperating or the non-cooperating stata?
2_5/ For example, it might well be a " material false statement" to submit a ;
utility plan without disclosing that is is illegal. See Virginia Elec. & Power i Co. (North Anna Power Station, Units it,2), CLI-76-22, 4 NRC 480 (1976),
aff'd, Virginia Elec. & Power Co. v. NRC, 571 F.2d 1289 (4th Cir.1978).
Finally, the Commission will be hard pressed, if it cedes this aspect of its historic primacy.over matters of radiological health and safety to states, to restrict its erosion in other safety-related areas as well, so long as a state can conjure a colorable nonradiological rationale, no matter how spurious, .for its actions. The resulting proliferation of standards will eviscerate this Com-mission's ability to carry out its obligation under the Atomic Energy Act to regulate the nuclear industry. It will also lead to nonetandardization, insta-bility, and potential' roduction in the safety of operation of reactors,~ and will be a total deterrent to any utility's ever again committing capital toward any new reactor.
Conclusion ALAB-818 is profound in its implications for one demonstrably safe plant, for the Commission, and for the nuclear industry generally. It is also at odds with statutory and decisional law, and with the law of this case. The Commission should promptly review and reverse it.26/
Re pectfully ub tted, 7 .
W. Taylor Reveley, Ill Donald P. Irwin James N. Christman Kathy E.B. McCleskey
, Counsel for Long
, Island Lighting Company Hunton F, Williams
, 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATED: November 4,1985 26/ Though the issues in this appeal have been briefed by the parties nu-i
' merous. times, the shape of the issues changes sufficiently with each iteration that the Commission should not make its decision on the pleadings to date,
~ but should set an expeditious briefing and argument schedule.
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intro. Re3. No.l1196-83 Introduend by 7 cgiolatoro Wehrcnbsrg, Cartcappn, D' Andra, Geise, Allgrova, Bachat Prospect, Foley, Nolan, Blass, Rizzo, LaBua, Devine, Hariton, Beck.
RESOLUTION NO. 111 - 1983, CONSTITUTING THE FINDINGS AND DETERMINATIONS OF SUFFOLK COUNTY ON WHETHER A LEVEL OF EMERGENCY PREPAREDNESS TO RESPOND TO A RADIOLOGICAL ACCIDENT AT THE SHOREHAM NUCLEAR POWER STATION CAN PROTECT THE HEALTH, WELFARE AND SAFETY OF THE RESIDENTS OF SUFFOLK COUNTY
.WHEREAS, Suffolk County has a duty under the Constitution of the State of N3w York, the New York State Municipal- Home Rule Law, and the Suffolk County protect the health, safety, and welfare of the residents of Suffolk Charter to County; and WHER'EAS, the Long Island Lighting Company ("LILCO") is constructing and dociras to operate the Shoreham Nuclear Power Station ("Shoreham"), located on tha north ' shore of Long Island near the town of Wading River, a location which is within the boundaries of Suffolk County; and WHEREAS, a serious nuclear accident at Shoreham could result in the release of significant quantities of radioactive fission products; and WHEREAS, the release of such radiation would pose a severe hazard to the haalth, safety, and welfare of Suffolk County residents; and WHEREAS, in recognition of the effects of such potential hazard posed by Shoreham on the daty of Suffolk County to protect the health, safety, and wel re of.its citizens, this Legislature on March 23. 1982, adopted Resolution No. 262-1982, which directed that Suffolk County prepare a " County Radiological Emargency Response Plan to serve the . interest of the safety, health, and welfare of the citizens of Suffolk County . ."; and WHEREAS, ,in Resolution 262-1982, the Legislature determined that the plan ,
dsveloped by the County "shall not be operable and shall not be deemed adequate ,
and capable of being . implemented until such time as it is approved by the !
- Suffolk County Legislature"; and i WHEREAS, in ~ adopting Resolution 262-1982, the Legislature found that earlier planning efforts by LILCO and County planners (the " original planning data") were inadequate because they failed to address the particular problems poced by conditions on Long Island and further failed to account for human bshavior during a radiological emergency and the lessons of the accident at Three Mile Island; and WHEREAS, on March 29, 1982, Peter F. Cohalan, Suffolk County Executive, acting to implement Resolution 262-1982, by Executive Order established the Suffolk County Radiological Emergency Response Plan Steering Committee
(" Steering Committee") and directed it to prepare a County plan for submittal to th9 County Executive and County Legislature; and WHEREAS, the 9teering Committee assembled a group of highly qualified and nationally recognized experts from diverse disciplines to prepare such County pla and l
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WHEREAS, such highly qualificd experto worktd in a . diligent and i c;nceicnticus offert ct a cact bi oxcasa of $500,000 to prepare tha bast '
podoible plan for Suffolk County, and particularly to ensure that such plan took 1 into account all particular physical and behavioral conditions on Long Island ,
that affect the adequacy of the emergency response plan; and :
LWHEREAS,-the analyses, studies, and surveys of such experts included:
(a) Detailed analyses of the possible releases of radiation from Shoreham; (b) Detailed analyses of the radiological health consequences of such radiation release on the population of Suffolk County, giventhe meterological, demographic, topographical, and other specific <
local conditions on Long ~sland; 4-(c) A detailed social survey of Long Island residents to determine '
and assess their intended behavior in the event of a serious accident at Shoreham; (d) A' detailed survey of school bus drivers, volunteer firemen, and i certain other emergency response personnel to determine whether emergency personnel intend to report promptly for emergency duties, or instead to unite with their own families, in the event of a serious accident at Shoreham;
.(e) Detailed estimates of the number of persons who would be ordered to evacuate in the event of a serious accident at Shoreham, as well as the number of persons who intend to evacuate voluntarily even if not ordered to do so;
- ( f)' Detailed analyses of the road net'ork w in Long Island and the time required to evacuate persons from areas affected by radiation releases; (g) Detailed analyses of the protective actions available to Suffolk County residents to evacuate or take shelter from such radiation releases; and (h) Analysis of the lessons learned from the accident at Three Mile Island on local government responsibilities to prepare for a 1
radiological emergency; and WHEREAS, on May 10, 1982, LILCO, without the approval or authorization of tha Suffolk County Government, submitted uo the New York State Disaster Preparedness Commisssion ("DPC") two volumes entitled "Suffolk County R diological Emergency Response Plan" and containing the original planning data, as further revised and supplemented by LILCO, and requested the DPC to review end approve such LILCO submittal as the local radiological emergency response plcn for suffolk County; and WHEREAS, in Resolutions 456-1982 and 457-1982, the County further 3ddressed the matter of preparing for a radiological emergency at Shoreham and h emphasized that (a) The LILCO-submitted document was not and will not be the County's Radiological Emergency Response Plan; and
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L (b). , Th3 C unty'O Radiolcgical Emerg2ncy R2cponco Plcnning Policy, no t cpunciatcd in Racolution 456-1982, is ao followas
$uffolk County -shall not assign funds or personnel to test or implement any radiolcgical emergency response plan for ths Shoreham Nuclear Plant-nnless that plan has been fully developed to, the' best of the County's ability.
- Suffolk County shall not assign funds or personnel to test or ir.plement any radiological emergency response plan._for the Skoreham Nuclear Plant unless that plan has been subject.of at least two public hearings, one to be held in Riverhead, and one to be held in asuppange..
Suffolk . county shall not assign funds or personnel to test or implement radiological emergency response plan for the any Shoreham Nuclear Plant unless that plan has been approved, after pablic hearings, by 'the Suffolk County Legislature and the County Executive; and WHEREAS, on June 9, 1982, the DPC rejected the LILCO-submitted document for 'the reason > that it was deficient; and October 6, again without the approval or WHEREAS, cut 1982, LILCO, authorization of the Suffolk County Government, submitted to the DPC an amended 4
- varcion of -the previously submitted LILCO document which had been rejected by
'.tho DPC; and WHEREAS, on December 2, 1982, the Draft County Radiological Emergency-Rocronse Plan authorized by Resolution 262-1982 was submitted to the County Lsg. lature fer review and public hearings an specified in Resolutions 262-1982, 456-1982, and 457-1982; and WHEREAS, in January 1983, the Legislature held hearings on'the Draft '
. county: plan, which hearings' included:
(a). More than 1,590 pages of transcripts; (b) Detailed written statements and oral testimony of County expert consultants who prepared the Draft County plan; (c) Detailed written statements and oral testimony of LILCO officials and expert consultants retained by LILCO; (d) Detailed written statements and oral testimony of the Suffolk County Police Department, the County Health Department, the County Social Services department, and the Coui ?.y Public Works Department, all of which would have indispensable roles in responding to a radiological emergency at Shoreham; V
(e) Detailed written statements and oral testimonv of organizations in. Suffolk County concerned with radiological emergency preparedness; and (f) Extensive presentations by hundreds of members of the general public; and f
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. WHEREAS, membero of th3 LegiDlatura also travallGd to cnd h21d public
- haaringa in the vicinity of tha Three Mile Island Nuclear Power Plant to gain information on the lessons to be learn'e d by local governments from the accident ,
et Three Mile Island; and WHEREAS, the Dr&ft County plan identifies evacuation and protective chaAmering as the two primary protective actions which would need to be implemented in the event of a serious accident at Shoreham; and WHEREAS, evacuation of Suffolk County residents in the event of a rcdiological emergency could take as much time as 14-30 hours because of various fcctors, including: the limited number of appropriate evacuation routes in Suffolk County; difficulties in mobilizing police and other emergency personnel; difficulties ensuing from spontaneous evacuation of large numbers of County residents,- thus creating severe traffic congestion; and unavilability of alternate evacuation routes for persons residing east of Shoreham and thus the 4 nzcassity for such persons during an evacuation to pass by the plant and i possibly through the radioactive plume; and WHEREAS, evacuation times in excess of 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> -- and certainly evacuation times in the range of 14-30 hours -- will result in virtual immobilization of evacuation and high exposure of evacuees to radiation such that evacuees' health, safety, and welfare would not be protected; and WHEREAS, protective sheltering is designed to protect persons from excassive radiation exposure by such persons staying indoors until radiation with the greatest danger to health has passed; and WHEREAS, if protective sheltering were ordered for suffolk County ras.idents, unacceptable radiation exposure would still be experienced by cub antial portions of the Suffolk County population, thus making.it impossible to provide for the health, welfare, and safety of-tnese residents; and WHEREAS, the document submitted by LILCO to the DPC without County -
approval or authorization is deficient because it does not deal with the actual local conditions, physical and behavioral, on Long Island that would be encountered during a' serious nuclear accident at Shoreham; and WHEREAS, the document submitted by LILCO to the DPC without County approval or authorization does not ensure that effective protective action by pargons subject to radiation exposure, in the form of evacuation or sheltering, would be taken in event of a serious nuclear accident at Shoreham, and thus such document, even if implemented, would not protect the health, safety, and welfare of Suffolk County residents; and WHEREAS, the extensive data which the Legislature has considered make clocr that the site-specific circumstances and actual local conditions existing on Long Island, particularly its elongated east / west configuration which requires all evacuation routes from locations east of the plant to pass within a zone of predicted high re.diation, the ineffectiveness of protective sheltering, thn severe traffic congestion likely to be experienced if a partial or complete evacuation were ordered, and the difficulties in ensuring that emergency parsonnel will promptly report for emergency duties, preclude any emergency rosponse plan, if rmplemented, from providing adequate preparedness to protect tha health, welfare, and safety of Suffolk County residents; now, therefore, be it
" RESOLVED, that th3 araft County plan cubmittco to tho County L;gisictura
. On De: caber 2, 1982, if impicmented, would not protact th2 hoalth, welfare, and scfety.'of *Suffolk County residents and thus is not approved and will not be implemented; and be it further RESOLVED, that the document submitted by LILCO to the DPC without the Cou. y approval or authorization, if implemented, would not protect the health, welfare, and safety of Suffolk residents and thus will not be approved and will not be implemented; and be it further RESOLVED, that since no local radiological emergency response plan for a ccrious nuclear accident at Shoreham will protect the health, welfare, and cafety et Suffolk County residents, and since the preparation and implementation
- of any such plan would be misleading to the public by indicating to County residents that their health, welfare, and safety are being protected when, in fact, such is not the case, the County's radiological emergency planning process 10 hereby terminated, and no local radiological emergency plan for response to en cccident at the Shoreham plant shall be adopted or implemented; and be it further RESOLVED, that since no radiological emergency plan can protect the h0alth, welfare, safety of Suffolk County residents and, since no radiological cmargency plan shall be adopted or implemented by Suffolk County, the County ExOcutive is hereby directed to take all actions necessary to assure that cetions taken by any other governmental agency, be it State or Federal, are conoistent with the decisions mandatcd by this Resolution.
DATED: February 17, 1983 ,
APP BY:
- ? ?Y!F
County Executive of Suffolk County Date of Approval: J JJ 73 1
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STAf t or f tw You JUL 141983 >
q Extcuvivc CHAMBER es d omcasteesse-
& Ser.
MAmio M. Cuomo AtaANY82224 g cov c =-ca . D g CD July 11, lo83
Dear Mr. Cotter:
The safety of our residents has been and continues to be operations inconcern my principal New York. in the evaluation of nuclear power plant (I was, therefore, shocked last week by the Nuclear Regulatory Commission's (NRC) opinion which states that the Long Island low-power Lighting Company (LILCO) is " entitled" to a license off-site emergency planning"."despite existing uncertainties about The determination that the Shoreham reactor could be allowed to fuel was made in the absence cf an acceptable evacuation plan and in the face of
' the real possibility that the plant may never be permitted to operate commercially at full power.
I believe the NRC action makes apparent for all to see the absurdity and inconsistency of current federal regulations governing nuclear power operations.
The NRC's action demon-strates again the crying need for clarification of the federal government's responsibility and accountability to those who must bear the burden of its regulatory scheme.
The NRC's action is especially distr'essing in light the initiative I have undertaken with the appointment of aof economi,c issues associated with the future of the Shoreham facility.
Both the NRC and FEMA (the Federal Emergency
, Management Agency) have been participating in the Panel's deliberations. The NRC has seen fit judgement'concerning the ultimate abilito make a premature governments to implement an emergency lan pty for of State Shoreham. and loca1 may be less than thatWhile the magnitude of risk associated with low-power test for full-power operation, there is
, neveitheless have been but was a substantial not addressed newbymeasure the NRC.of risk which should p- w ,y- -
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'Iramjelieved, bewever, that the Com-issicn did net
.:a ..a 'cw-power license for Shoreham.
s Atcmic Safety and Licensing M.ard :: :. saue I believe ;- - - -.
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i,;;.gl gCarc. . utility ...nas acted that prudently in seeking reasonable assurance from 4.m, . mg.,1.,- .-..e
..ebe:, ore: fuel load,.ng was permitted to begin.an emergency off-site plan would 3r.
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.~.Accordingly, I ask that the Atomic Safety and Licensine
.y;. .:p ard...now
. - 1 cense,.at refrain leastfrom recommending the issuance of a low-p5we~-
gj.ccmplet'editswork.until the In any Shoreham event the Fact-FindineBoard's action Panelwhas e
[.7 pr.even. tithe Panel from. conducting a comolete and thorouch no '~
g examination o.f the , safety, econo'mic and'energv issues sur-g.i. rouncins; Shoreham. ,
N;hi.t' t, 62:rH: - - +- n I; .- - *
-5Q. Vf,In fmplementing any authorization to operate a.t low gpower,*.'I..
y so. ent} rely echoat theitsNRC's own risk. dicta that LILCO's mcnagement would do There may be sienificant costs
- g e assoc
- .ated with low-power test'ing and operations. The allo- ~
fp_by 5.g tae Publication,.c,f .; these costs is entirely a matter for determination c Service Commission. The PSC would have jur~is-g . cletion to examine the propriety of a ' management decision to gg load. ue'l and conduct low g,.7 to use NRC's own words, "
power testing in the face of
. i. .u 1 power operation of the substantial plant". uncertainties about
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. ,.q u e s ;. l..o n ..I.urce your most careful consideration of this important m
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.;. Nonorable Paul Cotter C. Chairman %
' ' ~ Atomic: Safety and Licensing Board .
- East-West: Towers Bu!.lding -
4350 East-West Hichwav ~
. ,. _ B e t h e s d a i.f Maryland 20555
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.*:w y .cc: DrnNunzio J. Palladino, Chairman, Nuclear Regulatorv Commission g dr. Char 141s R. Pierce, Long Island Lighting CompanyChairman and Chief Executive Office""'
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LILCO, Novembe 985
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CERTIFICATE OF ' SERVICE V c? Q A \
In the Matter of fU c0 t
LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) D g3
$g*Sg[
. pNeu C -12 Docket No. 50-322-OL-3 A QW
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'I hereby certify that copies of LILCO's Petition for Review 818 and of LILCO's Motion for Page Limit Extension on Petition for Review of ALAB-818 were served this date upon the following by Federal Express as in-dicated by -an asterisk, or by first-class mail, postage prepaid.
Nunzio J. Palladino, Chairman
- Gary J. Edles, Esq.
United States Nuclear Atomic' Safety and Licens.
Regulatory . Commission Appeal Board 1717 H Street, N.W. _ U.S. - Nuclear Regulatory Washinoton, DC 20555 Commission Fifth Floor (North Tower)
Commissioner Thomas M. Roberts
- East-West Towers U.S. Nuclear Regulatory 4350 East-West Highway Commission Bethesda, MD 20814
' 1717 H Street,. N.W.
Washington, DC 20555 Dr. Howard A. Wilber Atomic Safety and Licensing Commissioner James K. Asselstine* Appeal Board, U.S. Nuclear U.S. Nuclear Regulatory Regulatory Commission Commission Fifth Floor (North Tower) 1717 H Street, N.W. East-West Towers Washington, DC 20355 4350 East-West Highway Bethesda, MD 20814 Commissioner Frederick M. Bernthal*
U.S. Nuclear Regulatory Morton B. Margulies, Commission Cnairman, Atomic Safety 1717 H Street, N.W. and Licensing Board, Washington, DC 20555 U.S Nuclear Regulatory Commission, Rm. 402A Commissioner Lando W. Zech, Jr.* East-West Towers U.S. ' Nuclear Regulatory 4350 East-West Hwy.
Commission Bethesda, MD 20814 1717 H Street, N.W.
Washington, DC 20555 Dr. Jerry R. Kline Atomic Safety and Licensing Alan S. Rosenthal, Esq., Board, Chairman, Atomic U.S. Nuclear Regulatory Safety and Licensing Commission l_ Appeal Board - East-West Towers, Rm. 427 U.S. Nuclear Regulatory 4350 East-West Hwy.
Commission Bethesda, MD 20814 Fifth Floor (North Tower)
East-West Towers 4350 East-West Highway Bethesda, MD 20814
. Mr. Frederick.J. Shon Mary Gundrum, Esq.
Atomic Safety and Licensing . Assistant Attorney General
~
. Board 2 World Trade Center U.S. Nuclear Regulatory Room 4614 Commission New York, New York 10047 East-West Towers, Rm. 430 4350 East-West Hwy. Spence W. Perry, Esq.
Bethesda, MD 20814 Acting General Counsel Federal Emergency Secretary of the Commission Management Agency U.S. . Nuclear Regulatory 501 C Street, S.W.
Commission Washington, D.C. 20472 Washington, D.C. 20555 MHB Technical Associates Atomic Safety and Licensing 1723 Hamilton Avenue Appeal Board Panel Suite K U.S. Nuclear Regulatory San Jose, CA 95125 Commission Washington, D.C. 20555 Mr. Jay Dunkleberger New York State Energy Office Atomic Safety and Licensing Agency Building 2 Board Panel Empire State Plaza U.S. Nuclear Regulatory Albany, New York 12223 Commission Washington, D.C. 20555 Stewart M. Glass, Esq.
Regional Counsel Bernard M. Bordenick, Esq.* Federal Emergency Oreste Russ Pirfo, Esq. Management Agency Edwin J. Reis, Esq.
26 Federal Plaza, Rm 1349
' U.S. Nuclear Regulatory New York, New York 10278 Commission 7735' Old Georgetown Road Stephen B. Latham, Esq.
'(to mailroom) Twomey, Latham & Shea Bethesda, MD 20814 33 West Second Street P.O. Box 298 Donna Duer, Esq. Riverhead, New York 11901
' Attorney '
~ Atomic Safety and Licensing Jonathan D. Feinberg, Esq.
Board Panel New York State Depart. of U.S. Nuclear Regulatory Public Service, Commission Staff Counsel East-West (North Tower) Three Rockefeller Plaza 4350 East-West Hwy. Albany, New York 12223 Bethesda, MD 20814 William E. Cumming, Esq.
Fabian G. Palomino, Esq.* Associate General Counsel Special Counsel to the Federal Emergency Governor Management Agency Executive Chamber 500 C Street, S.W.
Room 229 Room 840 State Capitol Washington, D.C. 20472 Albany, New York 12224
_, ~3-Ms. Nora Bredes Martin Bradley Ashare, Esq.*
Executive Coordinator Eugene R. Kelley, . Esq.
Shoreham Opponents' Coalition Suffolk County Attorney 195 East Main Street H. Lee Dennison Building .
Smithtown, New York 11787 Veterans Memorial Highway
. Hauppauge, New York 11787 Gerald C. Crotty, Esq.
Counsel to the Governor. Dr. Monroe Schneider Executive Chamber North Shore Committee State Capaitol P.O. Box 231
- Albany, . New York 12224' Wading River, NY _11792 t/
% ,' . ' y. u Donald P. Irwin Hunton & Williams 707 East Main Street Richmond, Virginia 23219 DATED: November 4,1985 t
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