ML20210B322

Memorandum & Order CLI-86-14 Denying State of Ny,County of Suffolk & Town of Southhampton 851226 Motion to Cancel 860213 Emergency Preparedness excercise.Re-served on 860915

ML20210B322
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/30/1986
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	NEW YORK, STATE OF, SOUTHOLD, NY, SUFFOLK COUNTY, NY
References
CON-#386-699 CLI-86-14, OL-3, NUDOCS 8609180041
Download: ML20210B322 (11)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0!1 MISSION g g COMMISSIONERS:

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James K. Asselstine Frederick M. Bernthal Lando W. Zech, Jr.

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 OL (Shoreham Nuclear Power Station) $ -@

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8E4ERVED FEB 5 1996 MEMORANDUM AND ORDER .

(CLI-86-14) A SERVED SEP 15 886

Background

Long Island Lighting Company's (LILCO) application for a full power -

operating license for its Shoreham Nuclear Power Plant, located in Suffolk ICounty, New York, is pending before the NRC. In order for there to be an

~Tdequate record for safety review of LILCO's full power application, NRC F regulations generally require, among other things, that an offsite emergency I

plan be developed, and that there be an exercise of the plan. See 10 CFR

% 50.47 and Part 50, App. E. The exercises are generally supervised and

! conducted by the Federal Emergency Management Agercy (FEMA), with l

l participation by relevent state and local governments. In this case, however, the emergency plan before us for review was developed and proposed by LILC0 because the State and County refused to develop one. The LILC0 Plan for Shorehan provides for the lead role for offsite emergency response to be i administered by the Local Energency Response Organization (LER0), er l 8609180041 860130 PCR ADOCK 05000200 G PIM DSo 1.

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- 2 organization comprised of primarily utility employees. In a December 26, 1985 motion, New York State, Suffolk County, and the Town of Southampton jointly moved the Comission to cancel a February 13, 1986 exercise of LILCO's emergency preparedness plan for Shoreham. LILC0 and the NRC staff oppose the motion, and we deny it for the reasons explained below.

The movants have not identified any basis in NRC regulations for the filing of such a motion, which in effect attempts to interfere directly with the Comission's process for obtaining infomation necessary for its licensing decisions. Under NRC practice it is not clear that this type of motion is ,

authorized or that we are obligated to respond in any formal way. On this basis alone the motion may be denied. Nevertheless, because we consider the upcoming exercise to be important in carrying out our safety responsibilities, we are responding to the motion in this Memorandum and Order.

The Nature of the Exercise I In the upcoming Shoreham excrcise planned for February 13,1986, FEMA lntends to observe a number of LERO primary response capabilities. This observation will entail an examination of facilities, plans, and communications, but will not entail' interaction with the public that would be affected in the event of an actual emergency. Specifically, FEMA plans to observe the following facilities and/or activities:

- LER0 Emergency Operations Center

- Emergency Operations Facility Emergency News Center Reception Center

- Congregate Care Centers t

.. 3 Emergency Worker Decontamination General Population Bus Routes  ;

School Evacuation Special Facilities Evacuation Mobility Impaired at Home Route Alerting Traffic Control Points '

- Impediments to Evacuation Radiological Monitoring Accident Assessment The Motion The State, County and Town oppose the holding of this exercise of the LILC0 plan for essentially two reasons: (1) they contend that various court decisions make clear that LILC0 cannot implement its plan, so an exercise of Ithe plan would be useless; and (2) they contend that, if the exercise is

" designed to test the implementability of the LILC0 plan using a simulated

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State and County response which was never litigated before any NRC Board, it would be irrelevant to the licensing process for Shoreham, and thus the results of the exercise would be worthless for that reason as well. We reject both reasons.

As to the first argument, it is true that a New York State Court has held that, in the event of an actual emergency, certain elements of LILC0's emergency plan can only be implemented by New York State or Suffolk County authorities. Cuomo v. LILCO, No. 84-4605(N.Y.Sup.Ct.,Feb. 20,1985). The exercise does not flaunt that decision; to the contrary, it presumes the validity of the limits on LILC0's authority to implement its plan as set forth

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in that case; the only elements of LILCO's emergency plan which will be tested are those that LILC0 may lawfully do on its own. The exercise of these elements of the LILCO plan will not, however, be useless. To the contrary, the exercise is expected to provide impcrtant and material infonnation to the Commission. For example, as we noted when we directed the NRC staff to request FEMA to schedule en exercise, the exercise will assist us in determining whether any defects that exist as a result of "the limitations of LILC0's plan when executed under the state and county restrictions" (memorandum from S. Chilk to W. Dircks, dated June 4, 1985 at 1), are -

significant under our regMations. See 10 CFR 50.47(c)(1). Therefore, it is simply incorrect for the movants to argue that the exercise is useless because not all of the plan's elements will be tested.

As to the second argument, the LILCO Plan in part states that:

The role of Suffolk County, should it decide to become involved in the response to a radiological emergency, either because the Governor orders it to do so or because the County Executive so I chooses, will be for the various nembers to participate to the extent to which they are qualified by reason of prior training or experience.

Thus a fundamental f actual premise for movants' secor,d argument, i.e., that the plan litigated in the Shoreham licensing proceeding provides solely for a LILCO-only response, is incorrect. The plan provides for planned LILC0 action in the event of an ad hoc State and County response to an actual emergency.

Not only does the LILC0 plan anticipate the possibility of such a response, such a response has been, in effect, promised by the State an.d County. The County Executive has stated that in the event of an actual radiological accident at Shoreham he would " respond to the best of [his] ability and in accordance with the duties and obligations placed upon [him] by Article 2-b of the Executive Law" (letter from P. Cohalan to T. Reveley dated June 26,1985),

.. 5 and Governor Cuomo has stated that in a radiological emergency, "both the State and the County would help to the exter.t possible; no one suggests otherwise." Governor's Press Release dated December 20, 1983.

In order to test LILC0's planned response to ad_ Foc governmental participation in an actual emergency and to add nore realism to the exercise, federal employees will play the role of such officials durir<g the exercise.

Through this role-playing, the NRC is attempting to evaluate LER0's capability (1) to accommodate the presence of state and local officials, (2) to support those officials using the resources available through LERO, and (3) to provide .

those officials with sufficient information to carry out their state and county responsibilities. These " actors," however, will be instructed not to play decisionmaking roles, not to assume any command and control authority, not to interact with menbers of the public so as to lead anyone to believe that they are actually county officials, and not to actually perform any state or local functions exclusively reserved to state or county officials by state

or county laws. The basis for the number of actors to be used in this aspect "of the exercise and the detailed instructions they will be provided are based, F primarily, on New York State plans for other nuclear power plants and the manner in which New York State personnel and other counties have participated in other New York facility exercises.

Thus, contrary to movants' assertion, the simulation to be performed during the exercise will test an actual and important aspect of LILC0's plan.

Indeed, the exercise currently scheduled, including the role playing, corresponds exactly with the current status of emergency planning for Shorehm.

6 Conclusion In sum, we find that the motion presents no reason why the exercise should be cancelled.1 We further find that the conduct of this exercise, which is pemitted by our. regulations, is under current circumstances both.

lawful and necessary to fulfill our responsibility under the Atomic Energy Act to protect the health and safety of the public.2 The exercise will allow us to evaluate whether the LILCO plan, as described above, is as good as LILC0 claims it is or, conversely, is as bad as the State, County, and Town assert.

I The County appears to assert (Motion, p. 21) that, in the event of a radiological accident at Shoreham, County personnel could not lawfully make use of the LILC0 plan, even if this was under the circumstances the best way to protect the safety of the citizens of Suffolk County. We find this assertion to be too preposterous an abrogation of the County's obligations to its citizens to be taken seriously.

The motion also states that NRC may not request an exercise at a plant "which has been' denied an operating license." (See, e.c . Motion at 3).

,However, the Comission itself has not reviewed the evic.entiary record on the

-adequacy of LILC0's plan, and consequently there is no final agency action denying LILC0 an operating license.

Movants also seem to argue that the Comission erred by failing to conduct a formal Comission meeting when it decided to request the exercise.

See Motion at 2. No law requires such a meeting.,

2 Section 103d., 42 U.S.C. Q 2132d., provides that:

... no license may be issued to any person within the United States if, in the opinion of the Comission, the issuance of a license to such person would be inimical to the comon defense and security or to the health and safety of the public.

Section 161c. , 42 U.S.C. % 2201c. , authorizes the Comission to:

... make such studies and investigations, obtain such information, and hold such meetings or hearings as the Comission may deem necessary or proper to assist it in exercising any authority provided in this Act, or in the administration or enforcement of this Act, or any regulations or orders issued thereunder.

7 Accordingly, we decline movants' invitation to cancel the exercise based on movants' assertion that the exercise is useless because it cannot prove that LILC0's emergency plan is sufficient to meet NRC requirements. While, for the reasons set forth herein, we believe that the exercise is very useful, we obviously take no position on whether the exercise will satisfy our emergency planning requirements. For the past several years the State, County, and Town have been claiming that no adequate plan can be developed for Shoreham, and that the LILC0 plan is inadequate. They are entitled, as litigants before us, to advocate that position; they are not, however, -

entitled to obstruct our inquiry into the facts necessary to enable us to resolve that assertion.

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The motion did not inform us of a pending development directly related to the motion: a County law, now in effect and under County consideration when its motion was filed, that is apparently intended to make NRC participation in the exercise a crime should the County legislature disapprove of it. Because it has not been raised by the movants as a basis for their motion, we do not deal with the new local law in this Order.

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Chairman Palladino and Comissioner Asselstine disapprove this order. l Chairman Palladino provided dissenting views with which Comissioner j Asselstine agreed. The additional views of the Comission majority are also l l

I attached.

It is so ORDERED. I 1

F the Comission C

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1: ,- { SAMUEL J. CHRK

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DISSENTING VIEWS OF CHAIRMAN PALLADIN0 I BELIEVE MY POSITION ON THE SCHEDULING OF AN EXERCISE AT THIS TIME IS WELL KNOWN. THAT POSITION IS AS FOLLOWS:

AFTER THINKING ABOUT THIS ISSUE A GREAT DEAL, I CONCLUDED THAT ONLY A POTENTIALLY WORKABLE PLAN SHOULD BE EXERCISED. GIVEN THE LICENSING AND APPEAL BOARD DECISIONS THAT LILC0 DID NOT HAVE THE LEGAL AUTHORITY TO PERFORM MANY OF THE REQUIRED EMERGENCY RESPONSE FUNCTIONS SET OUT IN THE PROPOSED PLAN, I QUESTIONED THE USEFU'LNESS OF THE DRILL BEING PROPOSED.

FURTHER, THE RESULTS OF A DRILL OF AN INADEQUATE PLAN MIGHT CREATE NEW HEARING ISSUES WHICH WOULD NEED TO BE ADDRESSED AND THAT MIGHT NOT ARISE IF ONE WERE TO EXERCISE ONLY AN ADEQUATE PLAN.

I BELIEVE THAT AN EXERCISE AT SHOREHAM WHICH INVOLVES s r PARTICIPATION OF THE STATE, SUFFOLK COUNTY, AND THE UTILITY COULD PROVIDE, ON THE OTHER HAND, USEFUL INFORMATION ON THE ADEQUACIES OF EMERGENCY PREPAREDNESS AT SHOREHAM THAT WOULD BE OF USE AND INTEREST TO ALL PARTICIPANTS.

UNTIL THE COMMISSION COMPLETES ITS REVIEW OF THE EMERGENCY PLANNING LEGAL AUTHORITY ISSUES AND DEPENDING UPON THE OUTCOME.

OF THAT REVIEW, I WILL CONTINUE TO HOLD THE ABOVE-STATED VIEW, I WOULD ADD THAT I HAVE NOT PREJUDGED, AND DO NOT INTEND TO

PREJUDGE, ANY OPEN ISSUE IN THE SHOREHAM OPERATING LICENSE PROCEEDING.

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Additional Views of Majority While we share our colleagues' views that the February 13, 1986, exercise would be more useful to us in discharging our regulatory responsibilities were Suffolk County and New York State to participate (and indeed we would be inclined to postpone the exercise were state and local participation

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certain in the near future), we are aware of nothing which suggests that there is any realistic chance of that occurring. Given the intransigence of these governmental bodies we believe our responsibilities require that we proceed with an exercise without them.

For the reasons stated herein, we. simply disagree with the view that this exercise will not provide useful information. Whether the LILCO plan adequately accounts for a promised, but ad hoc, governmental response (the

" realism" argument) is a matter on which we express no opinion at this time. As noted in our opinion, however, we expect the upcoming exercise to

provide us with important factual information to help us resolve this issue.

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