ML20213E775

Discusses H Brown Re 861006 Instructions to FEMA Reviewers of Revs 7 & 8 to Offsite Emergency Plan.Purpose of Review to Assess Effectiveness of Measures Undertaken by Util to Remedy Technical Problems.Related Correspondence

ML20213E775
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/06/1986
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Perry S Federal Emergency Management Agency
References
CON-#486-1448 OL-5, NUDOCS 8611130285
Download: ML20213E775 (3)

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Spence W. Perry, Esq.

General Counsel ~BY TELECOPIER Federal Emergency Management Agency 500 C Street, S.W., Room 840 Washington, D.C. 20472

Dear Mr. Perry:

We have received a copy of Herbert Brown's October 29, 1986 letter to you concerning your October 6 instructions to the FEMA reviewers of Revisions 7 and 8 of the LILCO Offsite Emergency Plan for the Shoreham Nuclear Power Station, as well as of Spence Perry's November 4 response and Mr. Brown's November 5 reply.

Mr. Brown's letters complain about Mr. McLoughlin's instruction that In performing this review, the RAC may have to assume, pending final resolution of the issue in the courts, that the authority necessary to manage and implement the offsite plan exists.

Mr. Brown requests that FEMA rescind that instruction and replace '

it with the assumption that LILCO lacks legal authority to imple-ment the plan. .The basis for his position is a decision, now on appeal, rendered by the baseline court in New York State in February 1985 and resting on state-law grounds.

i The instruction contained in Mr. McLoughlin's October 6 mem-orandum was the correct one, for three reasons.

First, the RAC's review is a technical one. Its purpose is to assess the effectiveness of the measures undertaken by LILCO to remedy the technical problems, categorized as Deficiencies and Areas Requiring Corrective Action, observed by FEMA in its April 17, 1986 Post-Exercise Assessment of the February 13 exercise.

Technical analysis cannot but be, at best, clouded by speculation on legal authority. The October 6 instruction to the RAC does 8611130285 861106 PDR ADOCK 05000322 O PDR 356.3

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t HUNTON & WILLIAu s Spence W. Perry, Esq.

November 6, 1986 Page 2 not necessarily differ at all from the instructions under which it has operated from the beginning.1/

Second, Mr. Brown's view of legal authority issues is not dispositive. With respect to state-law issues, LILCO has filed and is prosecuting a timely appeal from the trial court ruling in question, and a definitive view of New York state law issues will not be rendered until the New York Court of Appeals has ruled (with even that decision potentially subject to review by the United States Supreme Court). In addition, the NRC has concluded that entities with acknowledged legal authority -- New York State and Suffolk County -- can be conclusively presumed to make a best.

efforts response in the event of a real emergency, and to use the LILCO plan, in the absence of anything better, as the basis for that response. CLI-86-13, 24 NRC (July 24, 1986). Further, the two federal district courts that have considered the issue of legal authority in this case have both concluded that in the final analysis state law must yield to federal law in the area of ,

radiological health and safety. Thus whatever federal require-ments will ultimately be found to apply to the Shoreham context, it is clear that they, not state law determinations, will be the governing ones, and that speculation on the likelihood of rever-sal of the New York State trial court's decision is profitless.

Finally, Mr. Brown's argument is nearly r.wo years late. If intended to be taken seriously, it should have been posed as a dispositive bar to further licensing efforts for Shoreham begin-ning in February 1985. To the extent it has been, it has obvi-ously been rejected, as the events since then -- including FEMA reviews of intervening revisions of the Shoreham offsite plan and the conduct of an exercise despite Suffolk County's efforts P.o 1/ The RAC reviews to date have been technical in nature, though their assessment of the adequacy of various LILCO measures has included the somewhat confusing device of using asterisks to

! denote measures whose adequacy could be affected by legal author-i ity concerns. If this device were replaced in the current review by a simple statement that it is a technical review which pre-sumes the existence of legal authority but recognizes it as an issue for other forums and therefore does not purport to reach the merits of the issue, any confusion would be eliminated with-out prejudice to anyone's view.

N H UNTON & WILLIAM S Spence W. Perry, Esq.

November 6, 1986 Page 3 criminalize it under New York law 2/ -- attest.

Sincerely yours, adedrh @nre)

Donald P. Irwin Counsel for Long Island Lighting Company cc: Service List 2/ As you will recall, Suffolk County's attempt was declared to be unconstitutionally in conflict with the supremacy clause of the federal Constitution. LILCO v. Suffolk County, 628 F.Supp.

654 (E.D.N.Y. 1986).

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