ML20213G120

Answer of Suffolk County,State of Ny & Town of Southampton to Lilco Second Renewed Motion for Summary Disposition of Legal Authority Issues (Contentions EP 1-10).* Statement of Matl Facts Encl

ML20213G120
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/14/1987
From:	Latham S, Letsche K, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20213G123	List: ML20213G120 ML20213G172 ML20213G200 ML20213G219
References
CON-#287-3447 OL-3, NUDOCS 8705180131
Download: ML20213G120 (96)

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) DCLKETEO UitPC UNITED STATES OF AMERICA .ag ng 14 P2 $04 NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensina B5ard F  : tW' OuGn u itE ^ O # V K E BH/.NCH

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power )

Station, Unit 1) )

)

ANSWER OF SUFFOLK COUNTY, THE STATE OF NEW YORK AND_

THE TOWN OF SOUTHAMPTON TO "LILCO'S SECOND RENEWED MOTION FOR

SUMMARY

DISPOSITION OF THE ' LEGAL AUTHORITY' ISSUES (CONTENTIONS EP l-10)"

LILCO's Second Renewed Motion for Summary Disposition of Contentions 1-10 (the " legal authority contentions") advances --

and frequently confuses -- three separate arguments. Each of

those arguments is utterly lacking in merit.

First, the Second Renewed Motion seeks summary disposition of the legal authority contentions. In fact, the Motion is irrelevant to the legal authority issue; that issue has been definitively resolved against LILCO in the courts of New York State. Moreover, the Motion, by its own terms, concedes that LILCO cannot legally carry out the emergency response functions embraced by the legal authority contentions; accordingly, LILCO

-is not entitled to summary disposition on Contentions 1-10.

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i Second, the Second Renewed Motion attempts to re-argue LILCO's " realism" position. In doing so, the Motion ignores the fact that1this Board, the Appeal Board and the Commission -- as well as the courts of New York State -- have rejected LILCO's

" realism" argument. Undeterred, LILCO mischaracterizes its prior i

statements of its " realism" argument and offers a new -- and supposedly definitive -- version of " realism." That version of

" realism" would not entitle LILCO to any relief in this proceeding, let alone summary disposition of the legal authority contentions.

1 Third, the Second Renewed Motion, in substance, attempts to secure summary disposition of a new issue: whether a "best j efforts" but Ad h2g governmental response to a Shoreham emergency would support a " reasonable assurance" -finding. LILCO's request that this Board make a summary determination of the adequacy of an Ad h2g governmental response is the essence of the Second Renewed Motion. That request ignores the Commission's determination in CLI-86-13 that additional facts are needed to i

assess the nature, effect and adequacy of any governmental response to a shoreham emergency, even if that response were made on a "best' effort" basis and in light of LILCO's Plan. It ignores the plain fact that this entire litigation has been conducted -- and the entire record has been built -- with respect I

to a LILCO Plan under which LILCO and its agents -- not state or local governments -- would carry out all emergency planning

] activities in the event of a Shoreham accident. It ignores the

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equally plain fact that there are no undisputed facts upon which this Board could grant summary disposition with respect to any issue relating to a "best effort" governmental response.

Finally, it ignores applicable law: it ignores the burden of proof.placed upon LILCO; it ignores the regulatory standards of 10 CFR $$ 50.33(g) and 50.47; it ignores the legislative history of emergency planning and the regulatory history of 550.47; and it ignores the Court of Appeals' decision in Guard v. Nuclear Reculatory Commission, 753 F.2d 1144 (D.C. Cir. 1985) and the legal requirement that there be some concrete, identifiable basis for satisfaction of NRC licensing standards.

Etch of the arguments that LILCO advances in the Second Renewed Motion is subject to numerous legal defects. Each of these defects, standing alone, requires this Board to deny the Second Renewed Motion. Taken together, these defects establish that the Second Renewed Motion is wholly frivolous.

. I. LILCO'S SECOND RENEWED MOTION DOES NOT' ADDRESS THE ISSUES RAISED IN CONTENTIONS 1-10 AND DOES NOT SUPPORT

SUMMARY

DISPOSITION OF THOSE CONTENTIONS l

Contentions 1-10 allege that LILCO has no legal authority to carry out an array of functions that are fundamental elements of any viable emergency response. Those functions are integral ele-I ments of LILCO's Plan.1 Unless LILCO can perform those func-l 1 LILCO has never argued that the functions embraced by Contentions 5-8 are not material to its Plan. This Board has found that the functions embraced by Contentions 1-4, 9 and 10 are " material elements comprising the Plan LILCO submitted for the purpose of satisfying the regulations and guidelines." Lang Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), 21

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..d 1 tions, it cannot legally implement that Plan.

In response to the' legal authority contentions, LILCO fashioned its " realism" argument. The " realism" argument, even if accepted, would not establish LILCO's legal authority'to carry out the 10 basic functions or to implement its Plan. Instead, LILCO offers " realism" by way of confession and avoidance; it is LILCO's way of saying "We may not have legal authority to carry out our Plan, but that absence of legal authority is not important -- it will have no practical effect."

No responsible body has ever accepted LILCO's " realism" argument as a basis for finding that LILCO has legal authority to carry out the functions embraced by Contentions 1-10. Accord-ingly, no one other than LILCO has found " realism" a basis for rejecting Contentions 1-10. Thus, the Staff has consistently rejected " realism" as a basis for ruling in LILCO's favor on the legal authority contentions: "In our view, the (realism and immateriality] arguments do not provide an appropriate basis for the granting of summary disposition of Contentions 1-10." NRC Staff's Answer in Opposition to "LILCO's. Motion for Summary Disposition on Contentions 1-10 (the ' Legal Authority Issues')."

This Board rejected the " realism" argument: "The realism argu-ment has been shown to be without merit and is rejected." LQaE Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1),

ASLB-LBP-85-12, 21 NRC 644, 912 (1985) (hereafter, "PID"). The Appeal Board rejected the " realism" argument: "[T]here is simply l

I NRC 644, 917 (1985).

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no reasonable basis for assuming that the state or county could step.in at the last moment and execute the LILCO Plan." Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1),

ALAB-818, 22 NRC 651, 676 (1985) (hereafter, "ALAB-818"). Its remand notwithstanding, the Commission rejected the realism argument in CLI-86-13. That decision (i) cites the emergency i

planning functions identified in the legal authority contentions,,

(ii) acknowledges that functions "such as making decisions and recommendations to the public of protective actions, are fundamental to emergency planning," and (iii) in the face of LILCO's " realism" argument explicitly acknowledges that "LILCO is prohibited from performing the State or County roles" in the areas embraced by the legal authority contentions. Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22, 30 (1986) (hereafter, "CLI-86-13"). Thus, the i

! Commission did not hold that the " realism" argument gave LILCO the authority to perform any of these functions. Indeed, it reached exactly the opposite result, concluding that LILCO could not perform those functions and focusing its attention on the adequacy of a hypothesized State or local response.2 2 The Commission determined that it could " reasonably assume l some 'best effort' State and County response in the event of an

! accident;" it assumed that a "best effort" response would use "the LILCO Plan as the source for basic emergency planning I information and options" and it remanded the proceeding to this l Board with the direction to assess the adequacy of a "best effort" government response in the light of specific factual questions and under NRC regulations. CLI-86-13, 24 NRC at 30.

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This history notwithstanding, LILCO's Second Renewed Motion seeks summary disposition of Contentions 1-10. That Motion does not warrant the relief sought for two fundamental reasons.

First, the Second Renewed Motion contains no new fact and sets forth no new argument that would justify a finding that LILCO has legal authority to carry out the functions embraced by the Contentions. The parties and this Board have long since acknowledged that the legal authority issue is governed by New York State law. The legal authority question was presented to the New York State courts, and those courts have ruled against LILCO. Egg Cuomo v. Lona Island Lichtina Comoany, Consol. Index No. 84-4615 (N.Y. Sup. Ct., slip op., Feb. 20, 1985) ("Cuomo"),

aff'd, 511 N.Y.S.2d 867 (1987). Absent a showing of legal authority, LILCO is not entitled to summary disposition in its favor on the Contentions. Indeed, the Intervenors are entitled to summary disposition in their favor on Contentions 1-10 because there has been, and can be, no showing of legal authority.3 Second, by its own terms, LILCO's Second Renewed Motion does not support the relief it requests. LILC9's Motion acknowledges that the legal authority contentions assert that LILCO lacks 3 LILCO has also claimed that the Atomic Energy Act, 42 U.S.C.

S 2011, at agg., preempts any State law which would preclude LILCO from implementing its Plan. This Board and the Appeal Board flatly rejected such argument and acknowledged that the preemption doctrine provides no independent basis of legal authority to LILCO. Egg PID, 21 NRC at 909 ("There is no

. precedent for using the Supremacy Clause to transfer authority i

from government to a private entity."); ALAB-818, 22 NRC at 673 l ("[F]ederal law does not override enforcement of the statutes of l

the State of New York that impede or foreclose LILCO from

presenting a viable emergency plan to the Commission for

! review.").

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legal authority to carry out the elements of its Plan. Second Renewed Motion, pp. 2-3. That Motion concedes that the Cuomo decision holds that "certain enumerated acts contemplated by LILCO in implementing the Plan are prohibited by state law."4 i LILCO acknowledges, as it must, that "for the purpose of this

motion LILCO-continues to accept it [the Cuomo decision] as the law of New York." Second Renewed Motion, p. 3, n.3.5 In view of those concessions, LILCO is not entitled to summary disposition of the legal authority contentions. LILCO cannot even credibly ask this Board to grant summary disposition on the contentions.

In short, LILCO's Second Renewed Motion is not. relevant to, and does not warrant summary disposition of, the specific i

! contentions with respect to which summary disposition is sought.

Instead of addressing Contentions 1-10, the Second Renewed Motion goes off in two different directions. First, it essentially re-argues LILCO's " realism" position, asserting that LILCO's 4 LILCO's reference to "certain enumerated acts" is coy at best. In fact, the Cuomo decision recites the functions embraced by the legal authority contentions. Egg Cuomo, slip op. at pp. 4-6. The Partial Summary Judgment entered against LILCO specifically prohibits LILCO's performance of "the contested acts, enumerated more fully in the Complaints, contemplated by LILCO in implementing its Transition Plan," and declares that >

LILCO has no authority to implement that Plan. Partial Declaratory Judgment, 11 2, 4, 5. The Appellate Division's affirmance of Cuomo states that "LILCO's implementation of the emergency response plan it prepared would result in a usurpation of the State's police power. . . . This (police] power resides exclusively with the State and its duly authorized political

• subdivisions, and simply cannot be exercised by a private corporation such as LILCO. . . . " 511 N.Y.S.2d at 868-69.

5 These concessions notwithstanding, LILCO's Second Renewed Motion repeatedly assumes that LILCO could perform functions embraced by Contentions 1-10. Egg, g2gt, Second Renewed Motion, pp. 8-25.

conceded lack of legal authority is "an academic issue of no l practical importance." Second Renewed Motion, p. 4. Second, moving from that point of departure, LILCO attempts to argue that the present record establishes that a hypothesized ad h2g "best effort" governmental response wauld be adequate under NRC regulations and that, on that basis, LILCO is entitled to summary disposition of Contentions 1-10. The Second Renewed Motion is legally inadequate on both of those fronts.

II. LILCO'S " REALISM" ARGUMENT DOES NOT ENTITLE LILCO TO

SUMMARY

DISPOSITION OF CONTENTIONS 1-10 A. LILCO's " Realism" Argument Has No Fixed Meaning and Has Been Consistently Rejected in All of Its Permutations LILCO's " realism" argument is like a ticket to an amusement park that is good only for a single day. LILCO's pleadings in this action offer multiple versions of the " realism" argument that change according to LILCO's tactical needs at a given time.

Thus, depending on the day, LILCO has argued that " realism" means (i) that LILCO will implement its Plan under a delegation of powers by or pursuant to deputization from the State or the County; (ii) that in the event of a Shoreham accident, the Governor will surely suspend any state law that would otherwise preclude LILCO from carrying out its Plan; (iii) that LILCO on the one hand and state and local governments on the other will

. engage in a spontaneous cooperative effort in which the governments will provide LILCO an umbrella of legal authority

4 under which LILCO will be free to implement its Plan as it sees fit; (iv) that state and local governments would in fact implement LILCO's plan using LILCO's advice and LERO resources or even permitting LILCO to make all necessary decisions; or (v) that state and local governments will respond to an emergency at Shoreham on their own and that LILCO's lack of legal authority t

to carry out its own Plan would thereby be rendered academic.

A brief history of " realism" is instructive. That history provides a backdrop against which to assess " realism" in its present incarnation.

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1. LILCO's Oriainal " Realism" Araument LILCO's " realism" argument first surfaced in LILCO's August 6, 1984 Motion for Summary Cisposition. That Motion 4

assumed that " state law prevents LILCO from taking the actions specified in Contentions 1-10." Motion, p. 2. The validity of that assumption was subsequently confirmed by the Cuomo decision.

Nonetheless, LILCO invented a " realism" argument that was said to rest on the " single' fact, already established on the record of i this proceeding, that the State and County would respond in a real emergency." Id.

That " single fact" was never " established on the record" as the Commission tacitly acknowledged in CLI-86-13 when it was forced to " assume" a "best effort" governmental response and l

remand to this Board for additional hearings on the nature and effect of any such response. But if LILCO had no apparent

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factual support for its categorical assertion that governments would respond, the logical linch-pin of LILCO's " realism" argument was absolutely invisible.

LILCO's initial Summary Disposition Motion blandly asserted that "Suffolk County and New York State would respond to an emer-4 gency at Shoreham, thus removing any legal bar to a LERO re-

. sponse." Motion, p. 42. LILCO's assertion is a complete agn-secultur. LILCO's Motion for Summary Disposition did not explain, and LILCO never has explained, how a lawful governmental emergency response could legitimize an unlawful private usurpation of governmental powers.6 Notwithstanding LILCO's admission that it was prohibited from "taking the actions specified in Contentions 1-10," LILCO's Motion for Summary Disposition asked this Board to make a leap of logic and find

. prospectively that "at the time of an emergency LILCO would be taking-emergency response actions in conjunction with, or authorized by, government officials, and that as a factual matter any theoretical bar would be removed." Motion, p. 50. Thus, LILCO argued that governmental action would -- somehow --

legitimize private actions, apparently by some form of delegation 4

of state powers, so that "the ' illegality' of the LILCO Plan under New York State law disappears as an obstacle to operation."

i 6 The Court in cuomo emphasized that the functions set forth in LILCO's Plan were inherently governmental: "LILCO intends to l execute the PLAN solely with its own employees and intends to carry out activities which are inherently governmental in nature.

These powers have been duly conferred upon the STATE and its political subdivisions." Slip. op. at p. 17.

Motion, p. 50. In the final analysis, LILCO's " realism" argument asked all parties to accept this disappearing act as the basis for avoiding LILCO's legal to carry out its Plan.

Not surprisingly, this Board rejected that argument. In holding that "the realism argument is wholly predicated on the State and County authorizing LILCO to act as planned," this Board specifically acknowledged that the Cuomo decision held that "there are no means under New York State law by which LILCO can be vested with the authority it would need to implement the emergency response plan it proposes." PID, 21 NRC at 911. In view of the cuomo holding, this Board determined that the only lawful response to a Shoreham emergency would be a governmental response and that any governmental response would be on an uncoordinated, ad hgg basis. Id. at 912. In view of the legal requirement that a reasonable assurance finding rest on an applicant's submitted plan rather than the applicant's con-jecture, this Board concluded that LILCO's realism argument had no merit.7 7 The Commission's decision in CLI-86-13 may be read as re-quiring this Board to reexamine its conclusion that an unplanned, ad hgg response would necessarily fail to satisfy NRC regula-tions. It does not, however, contradict -- indeed it supports --

this Board's conclusion that there must be some factual record on the basis of which one can assess the nature of any governmental action, the effect of that action upon the overall state of emergency preparedness and the congruence between that emergency preparedness level and NRC regulations. Egg, e.o., GUARD v.

Nuclear Reculatory Commission, 753 F.2d 1144 (D.C. Cir. 1985).

2. LILCO's PID Anoeal Version of " Realism" In appealing from the Partial Initial Decision, LILCO criticized this Board for having misconstrued the " realism" argument, asserting that the Board had believed that argument to be "that the state would simply deputize LILCO employees to carry out an emergency plan but do nothing itself." LILCO's June 3, 1985 Brief Supporting Its Position on Appeal from the " Partial Initial Decision on Emergency Planning" of April 17, 1985, p. 46

("PID Appeal Brief"). Abandoning the concept of delegated authority, LILCO stated: "LILCO's ' realism' argument is simply that the State and County would in fact respond if a real emergency were to occur." PID Appeal Brief, p. 45. Then, arguing in the alternative, LILCO acknowledged that the New York Supreme Court had found that the police power cannot be delegated but asserted that " utility employees can be employed in emergency plans under the authority of the state government" and that, in any event, the Governor has the power to suspend state laws in an j emergency. PID Appeal Brief, pp. 46-7, n. 21.8 On the basis of such surmise, LILCO asserted that "in an I

emergency the State and local government officials would themselves participate, along with LILCO," but again, LILCO was l unt.ble to draw any logical connection between lawful state action L

l 8 LILCO did not, however, take the further step and argue that the State would in fact use utility employees to carry out gov-ernmental functions such as traffic control. Similarly, LILCO did not attempt to argue that the Governor would suspend state laws or turn over emergency powers to LILCO. No facts of record would have supported either argument. Moreover, the Commission has not embraced either of those concepts.

and illegal private conduct, particularly in light of the Cuomo decision. The Appeal Board rejected this version (or perhaps these versions) of LILCO's " realism" argument. Specifically, the Appeal Board agreed with this Board that, given the lack of a State or County plan, any governmental response would necessarily be of the ad h2g, uncoordinated type "that was found unsatisfactory during the accident at Three Mile Island and that led to the adoption of the Commission's current emergency planning regulations." ALAB-818, 22 NRC at 675. Moreover, the Appeal Board concluded that "LILCO ha(d) failed to make any demonstration that its plan is amenable to ad hoc adoption by the appropriate governmental units at the time of an emergency." Id.

3. The Commission's Rejection of LILCO's

" Realism" Araument LILCO's Petition for Review of ALAB-818 ("ALAB-818 Petition") made only passing reference to " realism." That Petition merely asserts that "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." ALAB-818 Petition, p. 6. That Petition contains no substantive discussion of " realism," and it does not supply the missing link between lawful State action and the prohibited usurpation of state authority by a public utility such as LILCO.

Egg ALAB-818 Petition, p. 12.

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Notwithstanding LILCO's pro forma preservation of its

" realism" position, the Commission recognized that LILCO could not legally carry out its Plan.9 The NRC specifically stated that "We assume that LILCO is prohibited.from performing the State or County roles in the following areas (the areas embraced by Contentions 1-10]". . . . CLI-86-13, 24 NRC at 30. Thus, the Commission did not conclude that " realism" would permit a finding that LILCO could lawfully carry out its Plan. -

The Commission did, of course, " assume" a "best effort" response by state and local governments and stated its belief that such a "best effort" response would use the LILCO Plan as a reference point for " emergency planning information and options."

14. at 31. Nonetheless, the Commission rejected LILCO's basic

" realism" position, stating that "we are unwilling to assume, as LILCO would.have us, that this kind of best effort government response would necessarily be adequate," and the Commission held that additional facts were necessary to assess the nature and adequacy of any such "best effort" response. Id.

The Commission did not hold that state or local governments would implement LILCO's Plan as written. No facts of record would have supported such a finding; any assumption that state or 9 The Commission's statement of LILCO's " realism" position was that "even if LILCO lacked legal authority, the State and the County would respond in a real emergency either by implementing the plan themselves or by deputizing LILCO personnel to implement the plan." CLI-86-13, 24 NRC at 25. The NRC noted that the first version of " realism" rested on a December, 1983 press release of Governor Cuomo while the second version of " realism" rested on the " asserted ' undeniable truth' that the State and County would respond to an emergency and "would permit LILCO to implement its plan." Id. at n.2.

local governments will implement LILCO's Plan would have had no basis whatever. Similarly, the Commission did not hold that state or local governments would authorize LILCO itself to implement its Plan. Again, no facts of record would support such a conclusion; any such holding would have run contrary to the Cuomo decision. Finally, the Commission did not hold that state or local governments would accept LILCO's recommendations with respect to protective actions or that state or local governments would follow LILCO's lead in any way, shape or form. Any such finding would have had no support in the record and would, moreover, have rested on a fundamental misconstruction of the relationship between governments and private corporations.

4. LILCO's Latest Version of " Realism" Thus, since 1984 LILCO has fashioned numerous variants of

" realism." None of those variants has been accepted by the Commission, the Appeal Board or this Board. Nonetheless, LILCO now offers its 1987 model of " realism." Noting that there has been much misunderstanding about " realism" (any "misunder-standing" having resulted from LILCO's inability or unwillingness to articulate a single version of " realism"), LILCO advances the concept of " realism" as supine delegation:

l l LILCO wishes to make it understood that I realism does D21 mean that the State or County would step in at the time of an accident, "take over" the plan using State and County employees, and send LERO home. Rather, what realism contemplates is a partnership in which LERO would continue, with official approval, to manage the emergency response; the County

and State would provide legal authority plus whatever resources they could provide on short notice. Obviously the State and County would have the power to override a LERO decision, and ultimate authority would reside with them; but in an extremely fast-breaking (and extremely unlikely) accident, it might be that the government officials could do little more than authorize LERO to carry out the emergency plan, at least in the early stages. Second Renewed Motion, pp. 8-9.

As is demonstrated below, this latest version of " realism" is inconsistent with the Cuomo holding; it is at odds with the Commission's decision in CLI-86-13; and it provides no basis for summary disposition of Contentions 1-10.

B. LILCO's " Realism" Argument is Inconsistent With the Holdina in Cuomo  ;

The Governments presented the legal authority issue that is at the heart of Contentions 1-10 to the state courts of New York in response to the specific request of this Board.10 The New York Supreme Court held that the functions embraced by LILCO's Plan are inherently governmental, that LILCO has no legal authority to carry out those functions or to implement its Plan as a whole, that LILCO has not been delegated the authority to perform those functions and that the State cannot legally authorize LILCO to implement its Plan or perform the functions 10 On January 27, 1984, J. Laurenson advised the partes that

, "[t]he Board believes that these legal contentions are properly i matters to be disposed of by the New York State courts."

! Shoreham NRC/ASLB Hearing Transcript, NRC Docket No. 50-322-OL l (Emergency Planning), (Jan. 27, 1984), p. 3675.

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embraced by Contentions 1-10.11 Accordingly, the Court entered Partial Summary Judgment in favor of Intervenors. That Judgment prohibits LILCO from implementing its Plan. That Judgment was affirmed on appeal. Cuomo v. LILCO, 511 N.Y.S.2d 867 (1987).12 LILCO is unwilling to recognize the implications of the Cuomo decision. LILCO assumes that it is not permitted to perform the functions embraced by Contentions 1-10. Second Renewed Motion, p. 3. It continues to assert that it accepts the

Cuomo decision as the law of New York. Second Renewed Motion,

p. 3, n.3. Nonetheless, it continues to assert that it would 2

perform many of the functions embraced by Contentions 1-10 in the

1. event of an emergency. Thus, for example, as noted above, LILCO asserts as a general matter that under its latest concept of realism, "LERO would continue, with official approval, to manaae the emeraency resnonse . . . . " (Second Renewed Motion, p. 8).

It also asserts that the LERO Director would broadcast EBS

! messages which had been prepared by LILCO; that LILCO Traffic 11 In reaching this conclusion, the' Court rejected a version of l

LILCO's " realism" argument. Thus, at the threshold, LILCO argued i

that no justiciable controversy existed between the parties because, in fact, the legal authority issue (that is, the

question as to whether LILCO could legally implement its Plan in j the event of an emergency) was, in LILCO's view, of no practical consequence. LILCO based that position on its assertion that, in the event of a real emergency, state and county governments would in fact respond, thus rendering irrelevant any question of.

LILCO's legal authority. The Court rejected this version of the i " realism" argument, holding that there was a justiciable dispute with respect to LILCO's legal authority to carry out the Plan which it had submitted to the Commission as the basis for its effort to satisfy 10 CFR 55 50.33(g) and 50.47.

12 On April 28, 1987, LILCO filed a motion for leave to appeal j the Appellate Division's affirmance to the Court of Appeals.

That motion is currently pending.

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4 Guides would direct traffic; that the LILCO traffic plan, 1

including its traffic control strategies and evacuation routes, would be implemented; that LILCO Traffic Guides would provide '

access control at the EPZ perimeter; that LILCO would make ingestion pathway protective action recommendations; and that l I LILCO would set up a " recovery and reentry" committee (and

" invite" the State and County to participate). Motion, pp. 13, 23-24, 26, 27, 29. LILCO can perform these functions legally 1

only if the State confers such authority upon it. The Cuomo decision specifically holds, however, that the State cannot l

lawfully do so. As stated by the Court "(t]he State and County would be breaching their ' fiduciary' duty to protect the welfare of its citizens if they permitted a private corporation to usurp the police powers which were entrusted solely to them by the community." Slip. op. at 18.

i Only LILCO has been unwilling to face up to the Cuomo decision. All other parties to this proceeding have acknowledged that it is controlling in rejecting LILCO's concept of delegated authority. Thus, for example, the NRC staff has specifically f rejected the proposition that LILCO's concept of delegated ,

authority survives the Cuomo decision. Egg NRC Staff's Brief in Response to Long Island Lighting Company's Appeal from the Partial Initial Decision on Emergency Planning of April 17, 1985 (July 19, 1985) at pp. 32-33. ("(T]he Board properly deferred to

! the New York Supreme Court's ruling . . . that LILCO could not be i

deputized to implement its offsite plan.") This Board has

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rejected LILCO's concept of delegated authority. Egg PID, 21 NRC at 911 ("The realism argument predicated upon LILCO being authorized to participate in its proposed emergency response plan fails because Applicant cannot be delegated the authority to i perform the functions enumerated in contentions 1-10."). The Appeal Board has rejected LILCO's concept of delegated authority.

Egg ALAB-818, 22 NRC at 673. And, finally, the Commission did not embrace LILCO's concept of delegated authority in CLI-86-13.

In sum, LILCO advances a concept of " realism" that is flatly inconsistent with the Cuomo decision. This Board cannot accept that concept, no matter how many times LILCO files renewed motions for summary disposition.

C. LILCO's " Realism" Argument is Inconsistent With the Commission's Decision in CLI-86-13 As previously indicated, LILCO's Petition for Review of ALAB-818, filed with the Commission, gave short shrift to its

" realism" argument. The Petition's only reference to " realism" presupposes that " realism" entails actual responses by state and county governments rather than delegation of governmental power to a private utility.

The Commission did not accept LILCO's " realism" argument.

In CLI-86-13 it did att hold that " realism" supplied LILCO with legal authority, nor did it (or could it) hold that LILCO could implement its Plan under color of delegated state authority.

LILCO's Second Renewed Motion, which seeks a ruling from this Board that its latest " realism" argument provides it with legal authority, is thus inconsistent with the Commission's decision in CLI-86-13.

Indeed, LILCO's Motion is premised on the baseless hypothe-sis that the Governments would imolement the LILCO Plan by dele-gating authority to LILCO and by their own actions. This giant '

speculative leap of logic, purportedly derived from the CLI-86-13 assumption of a "best' efforts" response using the LILCO Plan as a source of " options and information," is nowhere contained in CLI-86-13, or anywhere else. As noted above, it is contrary to the Cuomo decision and as noted below, contrary to the statements and positions of the Governments. Presumably, even the Commission felt that it cannot predict, much less declare as a

" presumption," what sovereign governments would do in exercising ,

their police powers on an ad hgg basis.

In sum, LILCO's concept of " realism" is whatever LILCO chooses to make it on a specific day and in its latest pleading.

Nonetheless, no " realism" variant provides LILCO with legal authority to implement its Plan or to carry out the inherently governmental functions delineated in Contentions 1-10. Thus,

" realism" provides no basis for relief with respect to Contentions 1-10. Insofar as LILCO invokes " realism" as the basis for summary disposition of the legal authority contentions, its Second Renewed Motion has no merit and must be denied.

f l  :

l.'-

1 Indeed, LILCO's acknowledged lack of legal authority _ requires that this Board grant ~ summary disposition on Contentions 1-10 in favor of the Governments.

III. EVEN VIEWED IN LIGHT OF THE CLI-86-13 " REALISM" REMAND,-

LILCO'S SECOND RENEWED MOTION DOES NOT ENTITLE LILCO TO j

SUMMARY

DISPOSITION OF CONTENTIONS 1-10 LILCO's Second Renewed Motion attempts to short-circuit the remand proceeding ordered by the Commission by mixing and confusing several separate issues. As previously noted, the i

Commission in CLI-86-13 did not embrace LILCO's " realism" I position nor did it find that LILCO had authority to perform the i

functions embraced by Contentions 1-10. Instead, the Commission

)

wrote its own concept of " realism" and remanded to this Board for l,

further proceedings on the Commission-defined concept of ,

" realism," and a determination as to whether the Board could find an ad hng "best effort" Government response adequate and j sufficient to permit the required reasonable assurance finding.

i The Second Renewed Motion ignores the Commission's CLI-86-13

! remand holding.

! Second, LILCO ignores the Commission's clear acknowledgment l that "more information is needed" and questions need to be answered about what an Ad h2g "best effort" Government response j would be and whether it would be adequate. Third, as already i

mentioned, LILCO ignores the fact that the Commission was .

{ unwilling to accept LILCO's argument that the State and County i

i would authorize LILCO to implement its Plan.

Based on these.three mischaracterizations of the CLI-86-13 remand order that LILCO argues that it is entitled to summary disposition of the legal authority contentions.

Thus, the bulk of the Second Renewed Motion does really not address the issues actually presented by Contentions 1-10, nor does it address the fact that the record in this proceeding provides no basis to determine the nature or adequacy of a hypothesized ad han "best effort" State and County response to a Shoreham emergency. For these reasons, the Second Renewed Motion is meritless, and it must be denied. In addition, the Motion ignores LILCO's burden of proof, the NRC's regulatory standards, the legislative history of emergency planning, and the regulatory history of S 50.47 and applicable law, and it must be denied for those reasons as well.

A. LILCO Ionores the Burden of Proof Placed Unon It Section 2.749 of the Commission's regulations governs motions for summary disposition. It is well-established that in order to prevail on such a request for summary relief, the movant, in this case LILCO, bears a heavy burden of establishing the absence of any genuine issue of material fact. The failure

! by the moving part to establish that there are no genuine issues l of material fact requires the denial of a summary disposition I

motion even in the absence of a response. Cleveland Electric

Illuminatina Co. (Perry Nuclear Power Plant, Units 1 and 2),

i j ALAB-443 , 6 NRC 741 (1977); Dairvland Power Coonerative (La I

I i

! l

Crosse Boiling Water Reactor), LBP-82-58, 16 NRC 512 (1982).

Furthermore, in ruling on a summary disposition motion, the Board l

must; view the record and submitted affidavits in the light most 4

. favorable to'the party opposing the motion. Id. at 519; Public I

Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2),

LBP-74-877, 879 (1974). Thus, in this case, LILCO has the burden

of establishing that this Board can make the findings required to rule in its favor on Contentions 1-10, even as modified with the

Commission's remand issue, without resolving any genuine issues

of material fact. As we demonstrate below, LILCO has not -- and cannot -- carry that burden.

j I

B. LILCO Ignores the Issues Raised by Contentions 1-10 and by the Commission's CLI-86-13 Romand In the Second Renewed Motion, LILCO purports to address the ,

j issues raised in contentions 1-10 and urges the Board to find "no litigable issue" with respect to each of those contentions.

I LILCO's arguments mischaracterize the issues raised by the con-j tentions, misstate the issues raised by the Commission's realism f

i remand, ignore the factual void in the record concerning what a "best effort" Government response would be, and constitute

nothing but bald, conclusory hypotheses premised on speculation.

i

The Preamble to Contentions 1-10 is an integral part of each individual contention and places them in proper context

1 1

) The LILCO Transition Plan specifies that in an emergency, the actions described in Conten-l -tions 1 through 10 below may be ordered to be i taken by LILCO personnel. Contentions 1 l through 10 allege that LILCO personnel do not i

i

! i

_...-,_._.-_m,_, .. _ _ , - - . - , , .,_._ , ,._ _ ,_ ,, _ . . - _ . _ _ _ . . _ . _ _ . _ . _ _ . _ . . . _ _ . _ _ . - . , _ . ,

~

have the authority to order or to perform those actions. Accordingly, as alleged in these contentions LILCO cannot, as a matter of '

law, exercise the responsibilities identified

'; in Contentions 1-10, and therefore, contrary to 10 CFR Section 50.47(a)(1) its Plan could not and would not be implemented. LILCO's j lack of legal authority to perform actions

, assigned to LILCO under the Transition Plan also results in noncompliance with 10 CFR Section Si0.47(b)(3) and NUREG 0654, Section A.2.b, in addition to other regulatory requirements as set forth in the contentions which follow.

'PID, 21 NRC at Appendix C, 958. (footnote omitted). Thus, 1 Contentions 1-10 present not just the issue of whether LILCO has legal authority to perform the police power functions involved in j implementing an emergency response plan, (agg section I above)

! but also the issues of whether the reasonable assurance finding ,

required by section 50.47(a)(1) can be made based on the LILCO ,

Plan-which was the subject of litigation, whether compliance with Section 50.47(b)(3), or NUREG 0654, Section A.2.b can be found i

i based on the submitted LILCO Plan, as well as whether the i additional regulatory requirements identified in the particular

contentions are satisfied by the LILCO Plan. Thus, in order to i

! grant LILCO's Second Renewed Motion for summary disposition of l Contentions 1-10, even viewing those contentions in light of the l Commission's CLI-86-13 ruling -- that is, assuming some ad hag

, "best effort" Government response to a Shoreham emergency -- this Board must find that there are no genuine issues of material fact

which must be resolved before the regulatory compliance findings presented by those Contentions can be made. LILCO ignores the i

4

i

~ _ = _ _ _ . - _ _ _ _ _ _

fact that its Motion raises these issues. And, as we demonstrate below, this Board cannot find, on the record before it, that there exist no genuine issues of material fact as to those issues.

C. There Are No Facts In the Record Which Sucoort LILCO's Motion There are no facts in this record upon which the Board could base a ruling for LILCO on Contentions 1-10 or on the realism issue postulated by the Commission in CLI-86-13. First, all parties acknowledge that the current record deals only with the LILCO Plan and its implementation by only LILCO personnel; therefore, to rule on any of those issues based on the record in this proceeding would constitute clear error, and a violation of the due process rights of the Governments. Second, even the Commission acknowledged that additional facts and proceedings are necessary to resolve its CLI-86-13 realism issue. Third, the Affidavits submitted by the Governments herewith, and the existing evidentiary record, not only establish the existence of factual disputes on material issues, but demonstrate that summary relief should be granted to the Governments on the LILCO Second Renewed Motion. Fourth, LILCO's so-called " material facts" not in dispute, are either irrelevant or wrong, and fail to support the summary disposition it seeks. Fifth, the underlying premise which pervades LILCO's Second Renewed Motion -- that its Plan has

been " approved" and found " adequate" by the NRC -- is incorrect.

We discuss each of these in turn below, and then we address LILCO's arguments on the particulars of Contentions 1-10.

1. All Parties and Boards Have Acknowledged That There Are No Facts in This Record on an Ad Hoc Government Response to a shoreham Accident Every participant in these proceedings has acknowledged that the current record is devoid of any evidence regarding what actions the State or County would take in the event of a nuclear accident at Shoreham. The NRC Staff has acknowledged this fact:

"[T]he present evidentiary record does not indicate how the State and County would respond in an emergency, or what effect that response might have upon the overall implementation of LILCO's offsite plan." NRC Staff's Brief in Response to Long Island Lighting Company's Appeal f' rom the Partial Initial Decision on Emergency Planning of April 17, 1985 (July 19, 1985) at p. 33.

This Board has also acknowledged that fact. Thus, the Board itself expressly limited the scope of the OL-3 proceeding to consider only the LILCO Plan, in which the proposed offsite response would be implemented by LILCO personnel or contractors, with no participation by State or County officials. Egg ASLB Order Limiting Scope of Submissions (June 10, 1983), 21 NRC at 912.13 The Appeal Board, too, has acknowledged this fact: "(N]o state or county response plan has been submitted for review on 13 This Board also has observed that "New York has had ample opportunity to state affirmatively on this record what its intended actions would be in the event of an emergency; it has not done so." Id. at 883.

this record." ALAB-818, 22 NRC at 674.

Finally, even LILCO has admitted this fact: "The issue of hnw the State and County would respond, now raised by the Board ggg soonte (in its Order of October 22, 1984), is an entirely new issue that has not been addressed in testimony." LILCO's Brief on Contentions 1-10 (dated November 19, 1984) at 42. LILCO has not attempted to change its position on this matter in its Second Renewed Motion. Egg, 12g2, Second Renewed Motion at 6, 7, and 8, acknowledging that litigation to date has involved the "LILCO-only Plan" with "LILCO-only implementation." Thus, there is no dispute that the current record lacks any evidence upon which this Board could determine what the nature and effectiveness of a State or County response would be.

Because the only Plan which has been submitted and considered by the Board in this proceeding is the LILCO Plan, to be implemented by LILCO only, to make factual or legal rulings concerning the nature, adequacy, or regulatory compliance of any other response to a Shoreham emergency would constitute clear error. First, this Board can only rule based upon facts and evidence in the record. A failure to do so constitutes a violation of due process. Egg Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981); Aberdeen & Rockfish Co. v. U.S., 565 F.2d 327, 334-35 (5th Cir. 1977, rev'd gn other arounds ARh HQmt Long Island Rv Co. v. Aberdeen & Rockfish Co., 439 U.S. 1 (1978);

Great Lakes Screw Coro. v. NRB, 409 F.2d 375, 379 (7th Cir.

1969). Second, to make findings in this case on the nature or adequacy of a Governmental response to a Shoreham emergency without being provided an opportunity for the parties to submit evidence on that subject -- and in the face of the clear and acknowledged lack of any factual information regarding such a response -- would deprive the Governments of their right to a hearing guaranteed by Section 189a of the Atomic Energy Act. Egg also Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C.

Cir. 1984), cert, denied, 105 S. Ct. 815 (1985).

2. In CLI-86-13 the Commission Itself Identified the Need for More Information on Fact Issues In Order to Rule on the Remand " Realism" Issue As noted, in CLI-86-13 the Commission recognized the need for fact-finding in order to mane 'he reasonable assurance findings required by the regulations. Thus, after announcing its assumption of "some 'best effort' State and County response" which would " utilize" the LILCO Plan as a " source for emergency planning information and options," the Commission expressly stated that it was " unwilling to assume, as LILCO urges, that this kind of best-effort government response would necessarily be adequate." CLI-86-13, 24 NRC at 31 (emphasis in original). Then

! the Commission identified some specific questions of fact, about j which "more information is needed," including:

, questions about the familiarity of State and County officials with the LILCO plan, about t how much delay can be expected in alerting the public and in making decisions and recommenda-

, tions on protective actions, or in making de-cisions and recommendations on recovery and reentry, and in achieving effective access l Controls.

l L

-\1 I .

f .

Id. The Commission noted that in the remand proceeding, the i

Board "should take additional evidence where necessarv." Id.,

j 32.14 -

The open questions which the Commission identified are j merely a few of the myriad unknowns concerning what a "best-l effort" response by the Governments would be, and whether it would be adequate, in compliance with regulatory requirements, j and sufficient to permit a reasonable assurance finding.- As we demonstrate below, LILCO's request that this Board make findings

in LILCO's favor on Contentions 1-10 and on LILCO's realism

, argument, would require the Board to answer -- without factual or record basis -- not only the questions the Commission identified

as requiring more information, but also innumerable additional <

l questions as to which there are no facts in the record or otherwise available to the Board.

i

3. Affidavits Submitted by the Governments

! and the Existing Evidentiary Record Require

{ Denial of LILCO's Motion j Not only is the record of this proceeding void of facts or j relevant evidence concerning whether an ad hgg "best efforts" '

Government response would be adequate, but, with respect to the

! conclusion sought by LILCO in its Second Renewed Motion -- that I

j such a response would include the implementation of the LILCO l ,

l 14 ggg ging Lona Island Lichtina Co. (Shoreham Nuclear Power 4

Station, Unit 1), ALAB-847, 24 NRC 412, 418 (1986) (character-i ising CLI-86-13 as requiring the Licensing Board, "(o]n remand

. . . [to] examine whether (a best effort] response would ade-j quately protect the public.").

i l i

. . - . - - - - - - _ , . _ _ . . _ - - - - - - - _ _ _ , - - _ _ . ~ - . - . - _ - _ _ _ - , . . - . ...:

1 Plan -- the only conclusion permitted by the record before this Board is precisely the opposite. The Affidavits submitted herewith by the Governments, and the existing evidentiary record, demonstrate that the State and County: would net implement the LILCO Plan; would 'ngt respond to a Shoreham emergency "in concert" or in " partnership" with LILCO; would agt rely upon LILCO recommendations or advice; would agt (and as noted above as matter of law, could not) authorize LILCO personnel to perform the functions identified in Contentions 1-10; and would likely J

respond.to a Shoreham emergency in ways very different from those set forth in the LILCO Plan. Thus, the record before the Board requires not only denial of LILCO's Motion, but a finding in i

favor of the Governments on Contentions 1-10.

3

a. Sworn Statements by the Governor and the Suffolk County Executive Require Denial of LILCO's Motion I

Governor Cuomo, speaking as the Chief Executive Officer of the State of New York, has stated as follows:

There is no basis for LILCO to suggest that the State would respond to a Shoreham emer-gency in accordance with LILCO's emergency plan or in concert with LILCO. The State would do neither. . . .

New York State could not responsibly act in concert with LILCO during a radiological emergency. Indeed, the established position of the State is that LILCO's emergency plan is unworkable. The State, therefore, could not in an emergency choose to rely upon the very plan that it has found to lack merit. . . .

[T]here is no basis for the State, or indeed the public, to have confidence in LILCO's judgment or capabilities in an emergency.

f

Given this, the State could not and would not rely upon LILCO, its emergency plan, or its advice in the event of a radiological emergency at Shoreham.

LILCO has repeatedly suggested that during an emergency I would suspend New York laws to permit LILCO to implement its emergency plan.

I could not lawfully delegate to LILCO police power to implement its emergency plan. But, even it I could, I cannot conceive of taking the extraordinary measure of suspending the laws of this State in order to permit LILCO, a company in which the State does not have con-fidence, to implement a plan which the State believes to have no merit. Whatever I would do at the moment of an emergency would be for the public good. LILCO's plan does not serve the public good, and I would not facilitate the implementation of it.

Affidavit of Governor Mario M. Cuomo, Attachment 1 hereto, Exhibit A. This statement was first made by the Governor on June 30, 1986 in order to correct misstatements and mischaracteriza-tions by LILCO. Its bases are set forth and explained in that Statement, which is Exhibit A to the Governor's Affidavit. In his Affidavit, dated May 6, 1987, the Governor stated, under oath, that this statement remains true and accurate, and that it continues to reflect the-position of the State of New York and his own position as Chief Executive of that State. This Board cannot grant LILCO's Motion in the face of the sworn statement by the Governor of New York which directly contradict the baseless assumptions upon which LILCO's Motion is premised, and which LILCO seeks to have the Board adopt as " findings of fact."

Similarly, the current Suffolk County Executive, Michael A.

LoGrande, has stated asjfollows:

j

1 Suffolk County has determined after extensive analyses that under no circumstances would it follow LILCO's emergency plan or work in concert with LILCO to effect an emergency response to an accident at Shoreham. . . .

I emphasize that as County Executive, I would not use the authority or resources of this government to implement LILCO's emergency plan or to work in concert with LILCO to effect an emergency response to an accident at Shoreham.

Suffolk County has found LILCO's Plan to be unworthy and unworkable. The County would not, and could not, rely on such a discredited plan. . . . The County would not, and could not, rely on the guidance or advice o' [LILCO) in an emergency. If the County did, its citizens could not trust their own government.

Affidavit of Michael A. LoGrande, Attachment 2 hereto, Exhibit A.

These statements were made by Executive LoGrande in a letter dated January 16, 1987, to Victor Stello of the NRC, to correct publicly reported misstatements and mischaracterizations by Mr.

Stello. The bases for Mr. LoGrande's statement of his and the County's position are set forth in that letter and the attachments thereto, which are Exhibit A to Executive LoGrande's Affidavit. In his Affidavit, County Executive LoGrande affirmed l

the truth and accuracy of th.ose statements.

County Executive LoGrande and Presiding Officer of the Suffolk County Legislature, Gregory J. Blass,'have further stated as follows:

The fact is that the government of Suffolk County would never use LILCO's emergency plan, or work in concert with LILCO, or rely upon LILCO's advice or judgment in a nuclear emer-gency. Whatever our actions, they would not include LILCO or LILCO's plan. . . . The June

23, 1986 statement of the Suffolk County

, Executive [ Peter Cohalan] . . . explains the reasons in detail.

)

Id., Exhibit B. These statements, too, were affirmed by Mr.

LoGrande in his Affidavit. The referenced statement of the prior County Executive, Peter F. Cohalan, which is an attachment to Exhibit A to the LoGrande Affidavit, stated inter alia, the following:

The Governments (Suffolk County and the State of New York] have no pre-planning, or know-ledge of inventory of available resources, no personnel readiness, and no training.

County law prohibits County personnel from implementing LILCO's emergency plan. Even if it did not, the County could not responsibly act in concert with LILCO and its emergency plan. The County's studies, analyses, and surveys, together with our day-to-day experi-ences on Long Island with the limited road network and the confined geography, have con-vinced us that safe evacuation of the public is not possible in a Shoreham accident.

LILCO's emergency plan is a guideline for traffic-jam gridlock and an immobilized evacu-ation . . . . This County would not act in concert with such a guideline for disas-ter. . . .

[T]he surmise that the County would have confidence in LILCO, or that it would rely on LILCO because there would be no one else on which to rely . . . is false. There is no corporation on Long Island with so low a standing with the public and local governments as LILCO. . . . In an emergency or otherwise, the public and the County government would have no confidence in LILCO. We could not, and would not look to such a discredited source for guidance or assistance in a nuclear accident. . . . In such circumstances, it would better serve the public's interest to act alone than to entrust the public weal to more of LILCO's poor judgments.

I reiterate . . .: Neither Suffolk County nor I as County Executive has any " partnership" with LILCO; there is no " basis for a private /

governmental partnership" of any kind with LILCO; the County has no confidence or trust in LILCO; and in an emergency, the County would give no credence to LILCO or its Plan and would not work in concert with LILCO.

Indeed, in an emergency, the public of Suffolk County . . . could not trust their own gov-ernment's officials if we, in turn, looked to the discredited LILCO for guidance or advice.

LoGrande Affidavit, Exhibit A. In his Affidavit, County

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Executive LoGrande affirmed the truth and accuracy of the above-quoted statements made by his predecessor, Mr. Cohalan, and affirmed that they continue to reflect the positich of Suffolk County and himself as the Suffolk County Executive.

This Board cannot grant LILCO's Motion in the face of these sworn statements by the Suffolk County Executive. Like the statsments of Governor Cuomo, they directly contradict the baseless assumptions upon which LILCO's Motion is premised, and which LILCO seeks to have the Board adopt as " findings of fact.al5 15 LILCO's assertion that statements such as those affirmed in the Affidavits of Governor Cuomo and County Executive LoGrande are " untested by cross-examination, contrary to New York State law, and contrary to at least two NRC decisions (CLI-85-12 and CLI-86-13)" (LILCO Motion at 31, n.41) must be rejected. First, under the Commission's regulations, the appropriate method for responding to a summary disposition motion is by way of affidavit; therefore, the suggestion that statements such as those set forth in affidavits should not be relied upon by this Board because they are " untested by cross-examination" is without basis. Such a suggestion by LILCO is also disingenuous, since its entire motion is premised on unsworn speculation that the Governments would engage in acts held by the Courts to he illegal; certainly, the LILCO Motion is not based on " sworn testimony, tested by cross-examination."

In addition, there are many other statements by State and County officials, made in testimony before bodies other than the NRC, which confirm these positions and explain them and their bases. They are identified in Exhibit E to the Affidavit of Karla J. Letsche, which is Attachment 3 hereto (hereafter, "Letsche Affidavit"). This Board must take official notice of them. For example, in testimony before various Congressional subcommittees, the County Executive has affirmed on several instances Suffolk County's position that it will not adopt or implement LILCO's Plan. Egg Letsche Affidavit, Attachment 3, Exhibit E.

Second, LILCO's assertion that statements such as those affirmed in the affidavits of Governor Cuomo and County Executive LoGrande are " contrary to New York State law," is unexplained, undocumented, and, in any event, clearly wrong. The Courts have held that the implementation of an emergency response is exclusively in the province of the state and local governments' police powers, and that the decisions made by those sovereign

authorities concerning how they would or could best protect their citizens, or their intended response to an emergency, constitute l

! an appropriate and rational exercise of that power.

Third, the assertion that the sworn statements by the Governor and the County Executive are " contrary to . . ., NRC decisions" is a non-seouitur which makes no sense. The statements by the Governor and County Executive speak for themselves. They set forth what those officials, speaking on behalf of themselves and the Governments they head, know, believe, and intend to do. What the NRC may believe or wish to assume about those Governments, their intentions, or their actions, has absolutely no relevance. The fact is that sworn statements by the chief executives of sovereign governments exist and are before this Board. Regardless of what the Commission may have asserted or speculated about in the past, this Board must acknowledge and respect the existence, validity and authority of those statements and the facts they embrace.

i

l l .

b. Testimony in This Proceeding Prohibits the Findinas Souaht by LILCO The record in this proceeding, and in the related OL-5 Exercise proceeding, is also replete with sworn testimony, by officials and personnel of New York State and Suffolk County, to the effect that the LILCO Plan is seriously and fundamentally flawed, that it is inadequate and unworkable, that it is based on unrealistic, inaccurate, baseless, and erroneous assumptions, that it could not be implemented as postulated by LILCO, and that it would not provide adequate protection to the citizens of Suffolk County even if it somehow could be implemented. The members of this Board are well aware of such testimony, so it will not be discussed at length here. It is identified, however,

_ with citations to the record, in the Letsche Affidavit at Exhibits A, B and D. One or two examples are provided here to refresh the Board's recollection; some additional ones are discussed with respect to particular Contentions.

For instance, State and County officials and witnesses have testified on numerous occasions that the evacuation time estimates, upon which protective action decisionmaking in the LILCO Plan is premised, are invalid because they are based on unfounded and erroneous assumptions, data and analyses. They have also testified thct LILCO's proposed traffic control scheme, upon which the evacuation time estimates are premised, is unworkable. Similarly, County and State witnesses have testified at length about the invalidity of the LILCO Plan assumptions

- _ - _ _ _ - _ _ _ - _ _ _ _ _ _ _ __ _ 1

about how many persons would attempt to evacuate when, and why such invalid assumptions render invalid and unworkable major portions of LILCO's Plan. Likewise, Suffolk County and State witnesses and officials have testified that the LILCO Plan's provisions for protecting persons in hospitals and other health care and special facilities, for the homebound, and for the deaf, and for school children, are inadequate or non-existent, based on inaccurate or inappropriate assumptions, and could not be implemented without endangering members of the public. Egg Letsche Affidavit, Attachment 3, Exhibits A, B and D.

LILCO's suggestion that this Board should find that County and State officials would implement the LILCO Plan -- in the face of sworn testimony by representatives of those Governments that I,

the Plan is fatally defective, unworkable, and inadequate to protect the public -- is simply absurd. Even the Commission in CLI-86-13 did not go that far; it merely said that it was willing to assume that the Governments would use the LILCO Plan as a source of information and options, not that they would implement it. In the face of the consistent testimony of Government officials, over a period of three and one half years, that the LILCO Plan is no good, no reasonable person could conclude that in a radiological emergency those officials would turn around and exercise their responsibility to their citizens by relying on, or attempting to implement, the very proposals which they and their staffs have determined would not protect the public.

4

4. LILCO's So-called " Material Facts" Fall to Succort Its Motion

a. The Vast Majority of LILCO's " Material Facts" Are Irrelevant Accompanying the LILCO Motion is a " Statement of the <

Material Facts as to Which LILCO Contends There is No Genuine Issue to be Heard on Contentions EP l-10." While some of these so-called " facts" are wrong (for the reasons discussed in section III.4.b. below and in the Affidavits attached hereto), the majority of those facts, even if true, are irrelevant to the issues raised by contentions 1-10 as to which LILCO seeks summary disposition.

LILCO's " material facts" have nothing to do with whether LILCO has legal authority to implement the LILCO Plan provisions identified in Contentions 1-10. Likewise, they have nothing to do with whether the State or County would, or could, implement the provisions of the LILCO Plan which are referenced in Contentions 1-10, as LILCO assumes in its Motion. They also have nothing to do with whether whatever "best efforts" response may be presumed by the County or State in an emergency, would be adequate or sufficient to meet the regulatory requirements set forth in Contentions 1-10, which is the issue raised by the CLI-86-13 remand.

Thus, for example, the fact that Suffolk County has a police force of 2,599 people (LILCO Fact No. 1) provides no basis for this Board to rule in LILCO's favor on Contentions 1-10, because .

it falls to address any issue material to those contentions. It does not demonstrate that LILCO has legal authority to implement the LILCO Plan provisions identified in those contentions; it i l

does not demonstrate that the State or County would or could implement the LILCO Plan provisions identified in those contentions much less implement them in the ways assumed or proposed by LILCO; and, even assuming the Commission's realism presumption were engrafted onto Contentions 1-10, it does not demonstrate what a County or State "best efforts" response to a Shoreham emergency would be, nor does it demonstrate that such response would be adequate or sufficient to satisfy the regulatory requirements. The same can be said for almost every other LILCO " material. fact." They simply do not advance LILCO's argument, because they are not the facts which are material to the decision being sought by LILCO, or by the Commission in CLI-86-13.16

b. Several of LILCO's Material Facts Are Wrona In addition, as noted in the attached Statement of Disputed Facts, and supported by the attached Affidavits, several of the so-called " facts" in LILCO's Statement are inaccurate. We discuss a few examples below.

16 Egg also, e.a., LILCO " Fact" No. 24. LILCO states that the EBS generator at radio station WALK triggers the tone alert radios provided to institutions in the Shoreham EPZ. This asserted " fact" is no doubt false since WALK has withdrawn from q the LILCO Plan and will not participate in its implementation.

Even LILCO acknowledges that. Motion at 12. In any event, the LILCO " fact," even if true, is immaterial since LILCO no longer relies on WALK. Id.

i

LILCO " Fact" No. 40: LILCO asserts that some New York State employees and/or officials are " familiar" with the LILCO Plan. To the extent that the term " familiar" is intended to imply that State employees have detailed knowledge of the LILCO Plan that would allow them to implement all or part of that Plan, with or without LILCO assistance, the Affidavit of James D.

Papile demonstrates that this LILCO assertion is false. While some State employees have reviewed limited portions of the I2LCO Plan in connection with the preparation of testimony in this proceeding -- as noted above, testimony that, in their e2. pert opinions, such portions of the LILCO Plan are inadequate and/or unworkable -- no State employee or official is sufficiently knowledgeable of LILCO's Plan to enable the State to implement alloranyporb^ihnofit, with or without LILCO assistance.

Likewise, no State personnel have been drilled or trained regarding the LILCO Plan. Papile Affidavit, Attachment 4, at 3-4.

LILCO " Fact" No. 41: LILCO also asserts that Suffolk County employees are " familiar" with the LILCO Plan. To the extent that the term " familiar is intended to imply that County officials with decisionmaking authority, or those who would direct an emergency response, have detailed knowledge of the LILCO Plan that would allow them to implement all or part of it, with or without LILCO assistance, the Affidavit of Michael A.

LoGrande demonstrates that this assertion is false. While some County employees and/or officials have reviewed and/or analyzed

limited portions of the LILCO Plan in connection with their preparation of testimony in this proceeding, no County official or employee is sufficiently familiar with the Plan to enable the County to implement all or any portion of it, with or without LILCO assistance. Likewise, County personnel have not been drilled or trained at all regarding the LILCO Plan. LoGrande Affidavit, Attachment 2, at 3-4.

LILCO " Fact" No. 42: LILCO claims that the State has seven controlled copies of the LILCO' Plan and procedures.

However, as stated in the Affidavit of James D. Papile, regardless of how many copies of the Plan LILCO may have at one time or another transmitted to State-affiliated personnel, at present no State officials who would direct or participate in a

..g-

- ~ ~

response to a Shoreham emergency are in possession of a complete and'up-to-date copy of the LILCO Plan. Papile Affidavit, Attachment 4, at 3-4.

LILCO " Fact" No. 43: LILCO asserts that Suffolk County has 18 controlled copies of the LILCO Plan and procedures.

However, as stated in the Affidavit of Michael A. LoGrande, Attachment 2, at 3, there are only 8 copies of the LILCO Plan in the County's possession, only 5 of those are up-to-date, and none of them are in the possession of the County Executive or his staff.

LILCO " Fact" No. 58: LILCO also asserts that several Suffolk County police officers are " familiar" with the LILCO traffic control plan. To the extent that the term " familiar" is meant to imply that the SCPD can or will implement the LILCO Plan, that assertion is false. The fact that certain Suffol.1 County police officers have reviewed LILCO's traffic control  ;

scheme in order to testify regarding its inadequacies and unworkability, does not mean that they are sufficiently knowledgeable of that scheme, or any other portion of the LILCO Plan to be able to implement it. Egg LoGrande Affidavit, Attachment 2, at 3-4. Egg also Letsche Affidavit, Attachment 3, Exhibits A-D.

5. An Underlying Premise of LILCO's Motion --

That Its Plan Has Been Approved or Found Adecuate -- is Without Basis One of the underlying premises of the LILCO Motion is the

~ ~ ' - -

assertion that the LILCO Plan has been " approved" or found to be

" adequate," by the NRC. Egg, e.o., LILCO Second Renewed Motion at 4, 6, 7, 8. This is incorrect, and constitutes yet another reason why the LILCO Motion must be denied.

First, aside from a passing reference to "certain minor exceptions" in the alleged " approval," LILCO completely ignores the following facts:

1. Certain of the ASLB's findings ._ " adequacy" referenced

- by LILCO have been reversed. Egg Lona Island Lichtina CQx (Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135, 148, 154, 157, 162 (1986) (reversal of adequacy findings on: size and location of EPZ; whether school bus drivers would be available to

i implement early dismissal or evacuation of school children; failure to identify relocation centers for hospital evacuees; and matters pertaining to reception centers for the general public and monitoring and

, decontamination of the public).17

2. Certain of the ASLB's findings have been remanded for additional litigation, most of which has not yet even begun. Egg ALAB-832, 23 NRC 135 at 148, 154, 162 (issues regarding EPZ size, school bus driver availability, public reception centers and monitoring / decontamination); Lona Island Lichtina Co.

(Shoreham Nuclear Power Station, Unit 1), ALAB-847, 24 NRC 412, 419-24, 431-32.(issues regarding reception 4

centers, monitoring / decontamination, and LILCO's ability to perform functions normally performed by State officials).

3. The ASLB itself found several inadequacies in the Plan which prevented it from making the necessary reasonable assurance findings, and most of which have not been corrected or even addressed by LILCO. Egg Lono Island

Lichtina Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-85-31, 22 NRC 410, 429-31 (1985), citina the PID, (failure to include certain schools in EPZ; information missing from public information brochure; failure to 17 Although the Commission has taken review of the EPZ and hospital evacuation issues, the Appeal Board's reversal of the i PID on those subjects remains the law of the case.

incorporate evacuation time estimate sensitivity analyses results in Plan; failure to incorporate evacuation time estimate uncertainty bounds in Plan; failure to identify or have agreements with reception l

l centers for special facility evacuees; agreements for buses inadequate because they are subordinated to preexisting contracts for use by schools; failure to identify reception centers for school children; no evacuation time estimates for school children).

4. New inadequacies in the Plan, which have not been addressed by LILCO or the Board, have surfaced subsequent to issuance of the PID. (For example, the withdrawal by the American Red Cross of its agreement to participate in implementing the LILCO Plan (agg Commission Order, Nov. 18, 1986); the withdrawal of radio station WALK as the central feature and actor in the LILCO EBS (id.); the Red Cross announcement of the lack of agreements with congregate' care centers; the unavailability of LILCO's proposed transfer point at the Brookhaven Multiplex Cinema (att Letter, dated February 17, 1987, from Jerome Magner to Francis J.

Dailey); the unavailability of LILCO's proposed three new reception centers because they violate zoning requirements (agg Suffolk County, State of New York and Town of Southampton Motion for Reconsideration of Schedule (Jan. 22, 1987)); LILCO's failure to comply

O with requirements of 10 CFR S 50.47(b)(12) as amended (agg Motion of Suffolk County, the State of New York and the Town of Southampton to Admit New Contention (Feb. 25, 1987)).

5. As recently as December 15, 1986, FEMA has identified 15 inadequacies'in the Plan, each constituting a failure to comply with NUREG 0654. RAC Review of LILCO Plan -- Rev. 8, attached to Letter of December 30, 1986 from Dave McLoughlin, FEMA Deputy Associate Director, to Victor Stello, NRC Executive Director for Operations.

Second, LILCO also ignores the fact that there is ongoing litigation about the adequacy, regulatory compliance, and implementability of major portions of its proposed Plan -- those relating to reception and relocation facilities and services for the general public, and procedures for providing radiological monitoring and decontamination for evacuees or others seeking or in need of those services during an emergency.

Third, and perhaps most importantly, LILCO ignores the fact that there is ongoing litigation concerning the results of its February 13, 1986 exercise of its Plan. A full participation exercise, and a finding that an exercise demonstrated reasonable assurance that a proposed plan can and will be implemented, are prerequisites to licensing. 10 CFR S 50.47; Part 50, Appendix E.

Not only is the February 13, 1986 exercise litigation still in process, but the OL-5 ASLB which is presiding over it has

. s acknowledged that the purpose of that litigation is to determine whether the predictive findings of plan adequacy contained in the PID were correct. Tr. OL-5, at 510-12 (Mar. 11, 1987).

The Governments contend, and have submitted approximately 1000 pages of direct testimony which demonstrates: (1) that the exercise was so limited in scope that it does not constitute the full participation exercise required for licensing; (2) that the scope of the exercise, the demonstrations included in it, and the l FEMA evaluation, were so limited and' flawed that they do not permit findings of reasonable assurance that the Plan can be implemented; and (3) that the exercise revealed, and LILCO's performance demonstrated, the existence of many fundamental flaws in the Plan, requiring findings that particular regulatory requirements are not met, and that there is no reasonable assurance that the LILCO Plan can or will he implemented to provide adequate protection to the public. FEMA has also stated that based on the February 13, 1986 exercise it could not make a

, reasonable assurance finding that the LILCO Plan could be l

implemented, or that the public health and safety could be i

i protected. 331 FEMA Post Exercise Assessment (April 17, 1986),

l I at ix; Statement by FEMA Region II Director Frank Petrone (February 15, 1986).

Moreover, the pending exercise litigation does not even deal

! with the fact that the Exercise involved a Plan which has been l

l ruled by the courts, and acknowledged by the NRC and LILCO, to be illegal and not capable of implementation, or with the fact that l

l k

t the exercise did not " test" LILCO's or the Commission's " realism" hypotheses. Egg Emergency Planning Contentions Relating to the February 13, 1986 Exercise (August 1, 1986), Contentions Ex l-14; Response of Suffolk County, State of New York, and Town of Southampton to the LILCO and NRC Staff Objections to the Emergency Planning Contentions Relating to the February 13 Exercise (August 25, 1986) at 14-16, 56-64; Suffolk County, State of New York, and Town of Southampton Objections to Prehearing Conference Order (October 27, 1986) at 4-8.

Thus, it is the Governments' position that another exercise would be required before a license could be issued, even assuming arauendo, that all the remaining outstanding issues were re-solved, and all in LILCO's favor. FEMA has stated that an addi-tionalexercisewouldbenebessarybeforeFEMAcanapprovethe LILCO Plan. Husar Deposition, OL-5, at 48-53, 103-104. Clearly, at the very least, since the proceeding designed to ascertain ,

whether LILCO's Plan is in fact capable of implementation is still in process, it cannot be said, as LILCO does in its Motion, that the Plan has been " approved," or found to be adequate.

D. LILCO's Discussion of the Individual Legal Authority Contentions Misstates the Issues and Ignores the Record, And Requires Denial of the Second Renewed Motion In this section, we address the portion of LILCO's Motion which purports to address Contentions 1-10 individually, and in which LILCO purports to demonstrate that there are no litigable

! issues concerning the matters presented by those Contentions.

47 -

i

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The issues as to which there are factual dispute, or as to which there are no facts before this Board, are set forth in the attached Statement of Material Facts as to Which There Exists a Genuine Issue to Be Heard on Matters Raised by LILCO's Second Renewed Motion for Summary Disposition of Contentions 1-10

(" Statement of Material Facts"). We do not address Contention 3 because it is no longer relevant.

1. Contention 5 LILCO begins with a di:3cussion of Contention 5, which it characterizes as involving the issues of activating sirens and directing the broadcasting of EBS messages. Egg Second Renewed Motion at 3, 9-16. First, LILCO's discussion mischaracterizes the Contention, rhich states:

LILCO is prohibited by law from activating sirens and directing the broadcast and con-tents of emergency broadcast system ("EBS")

messages to the public N.Y. Penal Law SS 1190.25(3), 195.05 (McKinney); N.Y. Exec.

Law S 20 gi agg. (McKinney). Under the LILCO Plan, LILCO employees are expected to order that sirens be activated. They are also expected to determine the contents of EBS messages, to determine that an EBS broadcast should be made, and to direct that such broadcast occurs. (Egg OPIPs 3.3.4 and 3.8.2)

Because LILCO employees are prohibited by law from performing such actions, the LILCO Plan cannot and will not be implemented, and the Plan fails to comply with 10 CFR Section 50.47(b)(5) and NUREG 0654 Sections II.E.5 and E.6. Moreover, in assigning such functions to LILCO employees, the Plan fails to comply with 10 CFR Part 50, Appendix E, Section IV.D.3.

j _

Thus, Contention 5 presents the issue of whether LILCO has legal authority to perform all the actions set forth in its OPIPs 3.3.4 and 3.8.2. They include deciding when, how frequently, and how to activate sirens, activating them, deciding when, how, and how frequently to make EBS broadcasts, determining the content and format of EBS messages to be broadcast, actually drafting EBS messages, and directing that messages actually be broadcast. The Contention also presents the issues of whether there is compliance with Section 50.47(b)(5), Part 50, Appendix E,Section IV.D.3, and NUREG 0654 Sections II.E.5 and E.6. Most of these issues raised by Contention 5 are completely ignored in LILCO's Second Renewed Motion with its conclusory and misleading discussion about one phone call being necessary to authorize the activation of sirens, and two phone calls to activate an EBS.

Clearly, however, as we show below, there is no basis to find in LILCO's favor on all (or any of) the issues which in fact are presented by contention 5.

Second, LILCO's argument that there are no litigable issues concerning Contention 5 is premised on its assertion that LILCO would be authorized by the Governments to perform the functions of activating the sirens (Motion p. 9), determining if an EBS message should be broadcast, drafting that message, and actually broadcasting.it to the public (id., p. 13). That assertion is contrary to law in violation of 10 CFR Part 50, Appendix E ("the responsibility for activating . . . a public notification system shall remain with the appropriate governmental authorities"), and flatly contradicted by the sworn statements of Governor Cuomo and County Executive LoGrande. For these reasons alone, the Second Renewed Motion must fail.

Third, even assuming some "best efforts" Government response using the LILCO Plan as a source of information and options as postulated in CLI-86-13, there are no facts in the record to support LILCO's assumption that such a Government response would be the same as, or even consistent with, that set forth in the LILCO Plan, OPIPs 3.3.4 or 3.8.2 (i.e., the subject of Contention 5), or as hypothesized by LILCO in its Motion. Indeed, such a hypothesis is flatly contradicted by the sworn statements of Governor Cuomo and County Executive LoGrande. Egg Attachments 1 and 2. It is also contradicted by the extensive testimony submitted on behalf of the Governments in this proceeding and the 4

in exercise proceeding. That testimony sets forth in great detail why the LILCO-proposed methods of alerting the public and providing emergency information to the public are defective, I

inadequate, based on erroneous assumptions, and would result in confusion, fear, refusal to follow instructions, and immediate evacuation on the part of the public, even if, ac suggested in footnote 16 (page 14) of LILCO's Second Renewed Motion, the EBS message were to contain no protective action recommendation. Egg Letsche Affidavit; agg also Testimony of Evans et al. on Behalf of Suffolk County Concerning Contentions Ex 38, 39, 22.F, 44, 40.C and 49.C, ff. OL-5 Tr. 3786 (April 27, 1987) and OL-5'Tr.

3777-4154.

l

Clearly, this Board can not find that a "best efforts" Government response would adopt or implement LILCO's proposals for alerting and disseminating emergency information and protective action recommendations to the public, when those Governments are on record, in this and the related exercise proceedings, stating that if implemented, those proposals could be dangerous to the public as well as ineffective and inadequate.

The truth is that the record before this Board contains no -

facts as to what a best efforts 'overnment G response would be --

it merely indicates what it would H21 be. This Board has no facts upon which it could find that such an unknown, Ad h2E, 1

l "best efforts" response would be adequate, would comply with the regulatory requirements cited in contention 5, or would permit a reasonable assurance finding as required by Section 50.47(a)(1).

Fourth, LILCO's siren discussion (Second Renewed Motion,

p. 9-11) deals only with LILCO's hypothesized ability to notify the Governments of an emergency. It totally ignores the more important elements of the siren activation issue which are the ones raised by Contention 5; that is, the decision to sound them, when and how that decision is made, and the implementation of that decision.

LILCO's failure to address this issue is understandable, because there are no facts in the record which relate to how the Governments, even assuming a "best effort" response, would or could perform those tasks. Thus, for example, there is no evidence on: how the State would learn of a Shoreham accident, t

- - - _ =-_ . . - - - . _- . -

I because LILCO's RECS lines are not connected with any State officials cognizant of emergency response matters (agg Papile Affidavit at 2-3); how long it would take for the Governments to react to a call from LILCO reporting that there had been an accident at Shoreham; who the person or persons who received such a call would in turn have to contact, how those contacts would be made, and how long they would take; who, and from which Governments, would need to be consulted in connection with a decision concerning when or how to activate sirens, how such consultations would take place, and how long they would take; who would make the decisions; what data, information, and criteria would be needed, desired, consulted, or relied upon by the unknown decisionmakers and/or their advisors in determining when to activate sirens and how to do so; if a decision were made to activate sirens, how that decision would be implemented, by whom, and how long that would take. In short, the record is devoid of

~

information on what a "best effort" response would be. It is, a

consequently, also devoid of bases to find that any such response would be adequate or comply with regulatory requirements.

.Fifth, LILCO's discussion of EBS activation (Second Renewed Motion, pp. 11-16) similarly is largely irrelevant to the real implementation issues raised in Contention 5. While it purports to describe how LILCO believes the mechanics of a particular system should or could work, it fails to address how, as a l

practical matter, such a system could or would be used by the l Governments in an ad hgg response to a Shoreham emergency, even l

assuming arcuendo that a system exists as described by LILCO, and whether use of such a system in an ad hqq manner would be adequate to meet regulatory requests.

Moreover, LILCO's discussion again ignores the more

! important elements of the emergency information issues raised in 4

Contention 5, which involve the decisions to broadcast emergency messages to the public, when and how those decisions are made, I j

1 the implementation of those decisions, and the contents of messages.

Thus, as with the siren issue, there are no facts in the record which relate to how the Governments, even assuming a "best effort" response, would or could perform those tasks. Thus, for t

example, there is no evidence as to: what procedures would be 1 followed by the Governments in attempting to decide whether to activate an EBS; who would have~to be contacted in connection with the making of such a decision, how those contacts would be

made, and how long they would take; who would need to be I

j consulted in connection with a decision concerning when or how to

! activate an EBS, how such consultations would take place, and how long they would take; who would make the decisions; what data, information,-and criteria would be needed, desired, consulted, or relied upon by the unknown decisionmakers and/or their advisors i

j in determining whether or when to activate an EBS and how to do so; if a decision were made to activate an EBS, how that decision

! would be implemented, by whom, and how long that would take; i

whether whatever EBS system chosen for use by the Governments in l

! i

i. -- - - _ . - _ . . - . _ . . _ , _ - _ _ _ _ _ - . - - . - _ _ - . _ - - - _ - - _ _ _ . - , - . , _ , . , _ _ _ _ - _ . , - - - _ _ - -

. . - . . . - . - - _ - _ _ - _ _- - .= - . - _._ .

4 an ad hqq response to a Shoreham emergency (assuming it were decided to utilize an EBS at all) would or could work as described in the LILCO motion; who would determine the contents of EBS messages, and what criteria would be used in making such

determinations; who would draft EBS messages, who would need to j

approve them, and how long that would take; who would broadcast them, how would such broadcasts be made, how often would they be made; what radio stations would be chosen by the Governments, i whether these unknown stations have the capabilities to perform f expected EBS functions, and how would they do so. In short, again the record is devoid of information on what a "best efforts" Government response would be. It is, consequently, also i devoid of bases to find that any such response would be adequate

! or comply with regulatory requirements. Sag the attached 4

Statement of Material Facts for identification of issues as to which there are facts in dispute, or no facts in the record, therefore precluding a ruling in LILCO's favor on Contention 5.

For all these reasons, as well as those set forth in Sections I, II, and III.A-C, the Board must deny LILCO's Motion l with respect to Contention 5.

I

2. Contention 6 i

Next, LILCO discusses Contention 6, which it characterizes i

as dealing with " making decisions and recommendations to the public concerning protective actions." Second Renewed Motion,

p. 3. In the section of its Motion which addresses this Contention, LILCO baldly asserts that under Contention 6, i

4

_ . _ _ _ - - . _ _ _ . . . _ _ . _ _ _ _ _ _ _ _ . _ _ _ _ _ _ . . _ _ . . , _ . _ . _ . . . .,_, ._ __-._ _ -_. m. _ _ . . - . . . _ _ _ _ . . , _ - _ _ _ _ _ - . . . . _

, the. decisions required are (1) to alert the public to stand by for further information (that is, to sound the sirens), (2) to decide whether the public should shelter or evacuate, and (3) to inform the public of this decision.

Id., p. 16. It then further reduces the issue it chooses to discuss as follows:

(T]he issue of Contention 6 boils down to whether the State or County would, using their best efforts, be able to make a timely deci-sion about whether the public should shelter or evacuate. -

t i Id. Finally, after having thus defined its own version of

Contention 6, LILCO concludes, in response to its own question, that Clearly the answer is yes -- so clearly that there is no litigable issue.

i-Id. This revisionist and self-serving definition of the issue,

and baseless, speculative conclusion, must be rejected.

First, LILCO has misstated and mischaracterized the issues raised by Contention 6. That contention in fact states as follows:

LILCO is prohibited by law from making deci-sions and official recommendations to the public as to the appropriate actions necessary to protect the public health and safety. N.Y.

Penal Law SS 19G.25(3), 195.G5 (McKinney);

N.Y. Exec. Law $ 20 gi gag. (McKinney). Under the LILCO Plan, all command and control functions, as well as all management and coordination of the entire emergency response, are to be per. formed by various LILCO employees or, in the case of the " Radiation Health Coordinator," by an unidentified LILCO

r d

" Contractor." (Egg Plan at 3.1-1; OPIPs 2.1.1, 3.1.1, 3.6.1). Thus, contrary to 10 CFR Part 50, Appendix E, Section IV.A, LILCO employees and contractors rather than " state and/or local officials" are identified as responsible for planning, ordering, controlling and implementing the offsite response including appropriate protective actions. Because LILCO is prohibited by law

, from performing such functions, its Plan can-not and will not be implemented, and it fails to comply with 10 CFR Sections 50.47(h)(5),

50.47(h)(6), 50.47 (h)(10), and NUREG 0654 Sections II.E.5, E.6, E.7, G, J.9 and J.10.

Thus, the contention presents a much broader issue than the

[ one conveniently created by LILCO. Indeed, Contention 6 presents

the central issue involved in the legal authority question

can LILCO exercise any of the command and control authority necessary to plan, order, control, direct, and implement an offsite i

response to a radiological emergency? To assert that this question can be " boiled down" into whether one can decide between sheltering and evacuation as a protective action recommendation i~

is absurd.

Contention 6 presents the issue of whether any portions of LILCO's Plan could or would be implemented, and whether several identified regulatory requirements could or would be satisfied, in addition to Section 50.47(a)(1) and the others identified in the preamble of the contention. All of this is ignored in LILCO's Motion, with its conclusory discussion of a contention and an issue it concocted out of whole cloth. Clearly, there is no basis to find in LILCO's favor on the issues raised by Contention 6. 4

Second, LILCO's argument and characterizations relating to Contention 6 also ignore completely the complex processes which, by LILCO's own admission, are involved in the decisionmaking and command and control functions necessary to implement LILCO's Plan. LILCO's own Plan and procedures comprise five volumes; the vast majority of these materials relate to the decisionmaking and implementation of protective action recommendations, and they include references to computer programs and analyses which are voluminous, and not even contained in the procedures. And, as noted above, by purporting to limit the " issue" in Contention 6 to solely a choice between sheltering and evacuation recommendations, LILCO ignores all the other command and control decisionmaking which the implementation of its Plan, the provisions cited in Contention 6, and a response to a Shoreham emergency, would in fact entail. Thus, LILCO's argument bears no resemblance to the issues actually presented by Contention 6 and which a ruling by this Board on that contention must address.

Third, LILCO's argument about what an ad han "best effort" Government response would be is once again based on nothing but hypothetical speculation by LILCO, unsupported by any record facts. Clearly, there are no facts in the record to support LILCO's assumption -- necessary to permit summary disposition on Contention 6 -- that the decisionmaking, command and control, and protective action recommendations involved in such a response would be the same as, or even consistent with, that set forth in the LILCO Plan, or as hypothesized by LILCO in its Second Renewed

. g Motion. Indeed, such a hypothesis is flatly contradicted by the sworn statements of Governor Cuomo and County Executive LoGrande, (agg Attachments 1 and 2) as well as by the record in this proceeding (ggg Attachment 3, Exhibits A, B, and D) and common sense.

The record here absolutely prohibits the finding desired by LILCO. Government officials have testified that the presumptions and facts which underlie LILCO's proposals for making protective action recommendation decisions are incorrect, and would result in endangering the public further, rather than protecting them

, from the effects of a radiological emergency at Shoreham. Just a few, out of many examples illustrate this point.

For example, as this Board knows, the Governments have con-tended, and it has long been their stated belief, that limiting preparedness, evacuation or sheltering plans, as well as any other aspects of emergency planning and response, to the artifi-cial 10-mile zone created by LILCO, is inappropriate and dan-f gerous. Egg ALAB-832. This Board is well aware -- and cannot ignore -- that a Government "best efforts" response, whatever it i would be, clearly would not include an acceptance of the planning zone concept fashioned by LILCO, or decisionmaking which incorporated that concept. However, all protective action j recommendations, the processes used to arrive at them, and every other aspect of the command and control functions in the LILCO j Plan, are premised on the existence, validity, and meaningfulness of LILCO's 10-mile EPZ. That entire concept, as well as plans I

r 1_ - - . - - _ - - - - - - _ - - . . . . - - - - - _ _ - - - - . - . - - - - . . - - - - - - - - - - .

, __ , 7 0

and procedures premised on it, have been, and in a "best efforts"

. response woul'd be, reiected by the Governments. This Board cannot find otherwise.

B Similarly, Government officials have testified that LILCO's evacuation time estimates -- which are the most central and

,g g dispositive data in LILCO's process for deciding whether to recommend sheltering or evacuation (agg OPIP 3.6.1) -- are wrong, db improperly derived, and premised on inaccurate assumptions and 1 beliefs about the roads, other conditions on Long Island, the behavior of Long Island citizens, and the ability to conduct an evacuation as proposed by LILCO. Egg Letsche Affidavit, Exhibits I A-D. -Clearly, any "best efforts" Government response would be -

basedLon the assumptions and facts known by the Governments to be accurate, not those which underlie LILCO's evacuation time estimates.

,, In the face of the record before it,-this Board cannot con-(l clude'that decisions on whether to evacuate or shelter the public on Long Island would be made by the Governments in reliance upon, or in accordance with, the evacuation time estimates or related assumptions, analyses, and data set forth in the LILCO Plan, suggested or recommended by LILCO, or hypothesizad by LILCO in its Motion. In addition, as demonstrated in the Letsche Affidavit and the exhibits thereto, the Governments have also stated in this proceeding their position that many other aspects of LILCO's Plan relating to protective action recommendations are inappropriate, incorrect, unworkable, or potentially harmful to 59 -

N the public. The point is not whether the Board or LILCO agree with the. positions taken or testimony given by the Governments; it is that those arg the positions held by the Governments and 4

they -- not the beliefs or desires of LILCO or this Board --

would govern any "best efforts" Government response.

Fourth, as already noted, the truth is that no one knows 4

what an Ad hog "best efforts" Government response to a Shoreham accident would be, although the record is clear as to what it would H2t be. There is certainly no'way for this Board to find, in the vacuum of this record on that subject, that such a response would be adequate, in compliance with all the regulations cited in contention 6, and sufficient to permit the reasonable assurance finding required by 50.47(a)(1).

Furthermore, LILCO's facile arguments aboNh Eat it believes the Governments "could" do, what they "might" do, or even what they "would have no choice but" to do, are on their face so speculative, conclusory and baseless that they barely merit i response. LILCO's argument completely fails to address the void in the record about how the Governments vould go about making i

decisions, or ordering, directing, coordinating, or implementing

a response to a Shoreham accident, particularly in the absence of any pre-planning, preparedness, or training relating to such a response. Egg LoGrande Affidavit; Papile Affidavit. Plainly, this Board cannot make a finding in LILCO's favor on Contention 6 without any information on those subjects.

l l

d Fifth, the arguments and assertions which LILCO does make in its discussion of what it defines as Contention 6 also fail to support the result it seeks. Its argument that "the State and to some extent the County are already prepared" (Second Renewed i

Motion, p. 17), because there exists a generic radiological response plan for the State of New York and because certain State and County witnesses have testified as to flaws in the LILCO Plan, is simply incorrect, as explained in the attached Affidavits of Messrs. LoGrande and Papile. Attachment 1 at 3-4; Attachment 4 at 1-4. The mere existence of a generic Plan is meaningless in the absence of a Shoreham-specific plan which identifies and includes the data, procedures, and other information necessary to permit an adequate and coordinated response by State personnel, and in the absence of preparedness, and training of such personnel with respect to those site-specific plans and procedures. Papile Affidavit at 1-2.18 18 LILCO's assertion, in footnote 20 on page 18 of its Second Renewed Motion, that "The assumption that a reasonable County l

Executive or State official would deliberately remain untrained l and uninformed about emergency planning once Shoreham began l operating above 5% power would be contrary to the "best efforts" l presumption and to CLI-SS-12," must be rejected. Not only does this ask for yet another layer of baseless speculation by this Board, but it also begs the question presented by the LILCO Motion. LILCO asserts that it is entitled to a judgment that there are no facts in dispute concerning the issues raised in Contention 6; to make such a judgment, this Board must look at i the facts which exist now and which are in the record before it.

Those facts are that neither County nor State personnel are trained to respond to a Shoreham emergency; there exists no State or County Plan for such a response; such implementation would violate the law of Suffolk County; the State and County are not prepared to implement such a response; and the Chief Executives of both Governments have stated, under oath, that they would not implement LILCO's Plan, or work in part nership or in concert with LILCO to respond to a Shoreham emergency. Based on those facts

D Similarly, the facts that the State and County possess some copies of the LILCO Plan, and that some Government personnel have l

reviewed portions of it in connection with preparation of testimony concerning its defects.and unworkability, constitute a preposterous basis for suggesting, as LILCO does, that the Governments are ready, willing, and capable of implementing that Plan. Moreover, as noted above, the LILCO assertions on this o

matter are factually incorrect. Egg LoGrande Affidavit; Papile 1 Affidavit.

Finally, while it is true that both the State and County have personnel " qualified" to make decisions, and, unlike LILCO, (

with the authority to do so, contrary to LILCO's suggestion (Second Renewed Motion, p. 17) that fact does nothing to advance LILCO's argument. It fails to address any issue material to the findings which this Board would have to make in order to grant summary disposition for LILCO: that is, what a "best effort" Government response to a Shoreham accident would be, and whether it would be adequate.

LILCO asserts that in a fast-breaking emergency, the Governments "would have to rely on" LILCO recommendations, and they would "have no choice but to pass on LERO recommendations to the public." (Second Renewed Motion, pp. 18, 19). This not only represents the height of LILCO's arrogance and presumptuousness,

-- and not speculation -- this Board must decide whether it can summarily dispose of the issues raised in Contention 6, including making findings of regulatory compliance and reasonable assurance that adequate protective actions could and would be taken, based on some assumed "best effort" ad hag response by the Governments.

Clearly, it cannot make such a ruling in favor of LILCO.

it is also patently incorrect. The Governments are sovereign entities, with the right, the power and the obligation to act as they see fit.to protect and further the interests of their citizens.- They have in the past, and would in the future, i exercise that power and fulfill that obligation to the best of their abilities -- but, according to their judgments, their beliefs, and their knowledge and understanding of the needs and demands of their citizenry, agi as dictated, presumed, recommended or hypothesized by LILCO or even by t'he NRC.

Clearly, the Governments would not "have to" do anything postulated by LILCO; they would always have a " choice"; and they would make that " choice" as they saw fit at the time. This Board cannot embrace LILCO's arrogance and presume or hypothesize away the Governments' sovereign powers.

Finally, LILCO's citation (Motion at 19) of Section 50.47(b)(4), which requires that " State and local response plans call for reliance on information provided by facility licensees for determination of minimum initial offsite response measures" demonstrates precisely why LILCO's Motion must be denied. There is no State or local response plan for Shoreham; there is no i

basis for finding that the Governments would rely on LILCO-provided information; even CLI-86-13 presumed only that the Governments would use the LILCO Plan as one source of information and options, not as the sole source, and not necessarily for the l options which would be adopted; and the Governments have stated

f

• they would nqt rely upon LILCO recommendations.19 Clearly, there can be no finding of compliance w'ith that regulatory requirement given the present record. Therefore, LILCO's Second Renewed Motion as to Contention 6 must be denied.

3. Contentions 1 and 2 Contentions 1 and 2 concern the implementation of an evacuation, and traffic control. Specifically, Contention 1 states that LILCO personnel do not have the legal authority to direct traffic or to ensure that evacuees follow the evacuation routes identified and prescribed in the LILCO Plan. It then alleges that the evacuation plans and procedures in the LILCO Plan cannot be implemented. It alleges, further, that because LILCO's evacuation time estimates, and the computer model and analyses from which those estimates, were derived, are premised upon evacuees using only the LILCO Plan-prescribed routes, the inability to implement traffic control and direction as set forth in the LILCO Plan renders the evacuation time estimates 19 LILCO's suggestion that because LILCO's protective action recommendations would be based on standard Emergency Action Levels (Second Renewed Motion, p. 19), the Governments "would have to act on the recommendations," is inapposite, as well as presumptuous and incorrect. Emergency Action Levels may be one factor taken into account by LILCO in making protective action recommendations; they may or may not be considered, and they may or may not be taken into account by the Governments in an Ad h2E "best effort" response. There is certainly no basis to assert that because EALs may he announced or reported by the onsite l LILCO staff during a Shoreham emergen,cy, they would result in the '

Governments' deciding to recommend the same protective actions which LILCO may believe particular EALs require or commend.

inaccurate. It also raises the issues of whether there can be findings of compliance with several enumerated regulatory requirements.

Contention 2 alleges that LILCO personnel do not have the legal authority to implement various traffic control measures such as blocking roads, imposing " channelization" treatments, prescribing turn movements and changing two-way roads to one-way operation. These functions are integral parts of LILCO's traffic s control scheme. Egg cenerally Plan, Appendix A. It alleges that the evacuation portions of LILCO's Plan cannot be implemented, and that the LILCO Plan evacuation time estimates are unrealistically low and inaccurate because the use of prescribed (

evacuation routes, and other assumptions, are invalid. It too raises the issues of whether there can be findings of compliance with enumerated regulatory requirements.

First, while LILCO's Second Renewed Motion purports to address both Contentions 1 and 2, in fact it addresses only contention 1 (traffic direction by traffic guides) and not Contention 2 which concerns imposing physical impediments to traffic traveling in " undesirable" directions. Thus, on its face, LILCO's Second Renewed Motion presents no bases whatsoever for granting summary disposition on Contention 2.

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Second, in its Motion, LILCO essentially ignores all the evacuation implementability, reliability of evacuation time estimates, and regulatory compliance issues which are actually raised by Contentions 1 and 2. A ruling by this Board on those contentions must address all those issues.

Third, LILCO argues that there is no litigable issue over whether. traffic control (ligt, direction) could be exercised promptly in the event of-a Shoreham accident, or whether a "best efforts" response could result in traffic delays. Second Renewed Motion, pp. 23, 25. LILCO bases its argument on the following assertions:

1. There is a LILCO traffic control plan (Second Renewed Motion, p. 23);

j 2. Suffolk County Police Department officers j would be dispatched in an emergency to the traffic control posts designated in LILCO's l traffic control plan (Second Renewed Motion P. 23);

3. Suffolk County Police Department officers i

would direct traffic according to the direc-l tions conveyed to them by radio (from whom is l unclear) or by LILCO traffic guides (Second i

Renewed Motion, p. 23-24);

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4. If Suffolk County Police Department officers i were delayed in arriving at LILCO's traffic

) control posts, the State and County would l , - . - . - . _ - . . - ,

authorize LILCO traffic guides to direct traffic in accordance with the LILCO traffic control plan until Suffolk County Police Department officers arrived (Second Renewed

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Motion, p. 24-25). '

Clearly, this LILCO argument totally misses the issues presented by Contentions 1 and 2, even assuming the Commission's CLI-86-13 " realism" presumption were engrafted into those contentions. Thus, the question is not whether there would be

" traffic delays" beyond those postulated by LILCO in its Plan.

Rather, the questions,-inter alia, are what wotid a "best effort" Government response be; would it result in implementation of the LILCO evacuation procedures identified in the contentions; would such a response meet regulatory requirements; and would such a response permit the use of LILCO's evacuation time estimates?

LILCO fails to address these.

Fourth, LILCO's argument that there is no litigable issue regarding traffic control must be rejected because it is based on I LILCO assertions which are flatly contradicted by sworn testimony in this record, and the law of Suffolk County. Thus, while it is true that LILCO has developed a traffic control scheme as part of its overall Plan, LILCO ignores one overriding factor: Suffolk l County, and specifically the Suffolk County Police Department, cannot and will not implement LILCO's traffic control schene.

Sag Attachment's 1, 2, and 4.

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Thus, even assuming, arcuendq, an ad h2g "best effort" governments response, there are no facts in the record to support LILCO's assertion that an ad hqq response by the SCPD would be the same,~or consistent with the LILCO Plan and procedures referenced in Contentions 1 and 2, or that such response as a LILCO response would result in evacuation times similar to those j presumed in the LILCO Plan. To the contrary, officials in the Suffolk County Police Department have analyzed LILCO's traffic control scheme and found it to be unworkable. Egg Affidavit of Karla J. Letsche, Exhibits A, B, and D. Substantial testimony has been presented to this Board several times on matters related 1

t to the inadequacies of LILCO's traffic scheme, and the invalidity of its time estimates and their underlying assumptions of data.

4 Sag id. Therefore, LILCO's assertion that the Suffolk County Police Department would implement the very traffic control scheme which it has rejected, which it has not been trained to implement,20 and which it cannot lawfully implement under County law, must be rejected. Egg Roberts Affidavit, which is Exhibit C 1

to Attachment 3 (Letsche Affidavit).21 i ____________________

20 The SCPD officers also have no training in dosimetry or protection from radiation. Thus, one cannot expect that the SCPD could be mobilized promptly or effectively.

21 There is also no basis in the record for LILCO's assumption

that a trained Suffolk County Police Department officer would take traffic control directions from a LILCO meter reader or i other nonprofessional which LILCO has designated as a " traffic guide." Egg-id.

<_ _ . .. _ . _ _ _ _ . _ . _ _ _ _ . _ _ _ _ _ _ _ _ _ _ . . _ ~ -

Further, there are no facts in the record on the nature of the traffic control scheme, if any, that Suffolk County Police Department officers might eventually implement, how long it would take to develop that scheme, and what the resulting estimated evacuation times would be.22 Furthermore, the record is devoid of evidence on how long it would take for Suffolk County Police Department officers to arrive at LILCO's traffic control posts, or even how many officers could be mobilized during a Shoreham

accident.

In short, there is no basis on which this Board could find 4 for LILCO on Contentions 1 and 2.-

4. Contentions 4 and 9 Contention 4 concerns LILCO's lack of authority to remove obstructions from the roadways using tow trucks or other means.

Contention 9 addresses LILCO's lack of authority to dispense fuel from fuel trucks. LILCO's arguments regarding-Contentions 4 and 9 are unpersuasive and do not deserve much attention. As alleged in Contentions 4 and 9, LILCO's inability to remove obstructions or deal with cars which have run out of gas, renders its evacuation time estimates invalid, and makes it impossible to t

l implement the evacuation procedures contained in the LILCO Plan.

4 l It also makes it impossible to find compliance with the

l. regulatory requests cited in Contentions 4 and 9. Thus, LILCO's 22 Indeed, in developing its own emergency response plan in 1982, the County's planners assumed a much larger EPZ, different evacuation routing, and a different list of control posts.

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arguments regarding Contentions 4 and 9 (Egg Second Renewed Motion, pp. 28, 30) must be rejected for the reasons just explained with respect to Contentions 1 and 2.

5. Contentions 7 and 8 Contentions 7 and 8 deal with decisionmaking, recommenda-tions, and implementation of protective actions for the ingestion pathway, and activities relating to recovery and reentry. LILCO discusses these contentions, and why in its view there are no litigable issues relating to those contentions, at pages 25-28 of its Second Renewed Motion. Its argument on these decisionmaking functions must be rejected for the reasons already discussed above in the context of Contention 6 (also relating to protective action decisionmaking), and those reasons will not repeated here.

LILCO's arguments concerning Contentions 7 and 8 must be rejected for several additional reasons, however.

First, LILCO's primary basis for arguing that it is entitled to summary disposition on these two contentions boils down to the 1

following assertion: because, in LILCO's view, activities relating to ingestion pathway protective actions and recovery and l

reentry are unlikely to take place during the early part of an accident, it does not matter that there is no evidence that the necessary decisions, recommendations, and protective actions l

could or would be (a) implemented, (b) adequate, or (c) in compliance with regulatory requirements, assuming an ad hqq "best l - _ . . ._

3 efforts" Government response. Egg Second Renewed Motion, pp.-25-28. This argument makes a mockery of the Commission's ,

I regulations, and cannot be accepted by this Board.

i For purposes of the decisions to be made by this Board, the i

time at which LILCO believes decisions, or recommendations or actions relating to ingestion pathway protective actions or to recovery and reentry need to or are likely to take place during an emergency, is irrelevant. The regulations require that there i exist planning and preparedness concerning these subjects, as well as a demonstrated capability of implementing necessary and adequate actions to protect the ingestion pathway and to accomplish recovery and reentry. The pertinent regulatory requirements are spelled out in Contentions 7 and 8, and in the

, preamble to those contentions, including 10 CFR SS 50.47(b)(1),

) (b)(10), (b)(13), 50.47(c)(2), Part 50, Appendix E,Section IV.A.8, NUREG 0654 $$ II.J.11 and II.M. There simply is no I evidence in this record upon which to base any finding that an ad

hgg "best effort" Governments response to a Shoreham accident

would or could result in

(a) implementation of the portions of LILCO's Plan, referenced in Contentions 7 and 8, relating to

ingestion pathway and recovery and reentry; (b) implementation of i

adequate protective measures for the ingestion pathway or

relating to recovery and reentry; or, (c) adequate implementation of protective measures for the ingestion pathway or relating to i recovery and reentry, sufficient to provide' reasonable assurance

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-w,,wn,---- , , , -,, ,.m n , . wm .,_-,,---e. , - , ,w.,.wm,.n_ m ,m.m. ,ww-,,.- m.n-

that the public would be protected. In the absence of such evidence, the Board must deny LILCO's request for summary disposition of Contentions 7 and 8.

Second, LILCO's assertion that "the LILCO arrangements for ,

the 50-mile EPZ would work with governmental 'best efforts' participation," because LILCO resources "could be used by New York State" (Second Renewed Motion, pp. 26, 27) is also irrelevant. The issue for decision is not whether a LILCO- ~

proposed " arrangement" or LILCO resources "could" be used.

Clearly, anything "could" be used, and anything "could" happen, particularly in the hypothetical world of speculation in which (

LILCO's Motion is grounded. However, the issue presented to this Board is whether there is reasonable assurance that adequate protective measures can and will be taken assuming an ad hqq "best effort" Government response. This Board has no evidence in the record before it upon which to make such a finding.

Third, LILCO's assertion that because there exists a generic plan for the State of New York, "[a] 'best efforts' response by the State would unquestionably meet the NRC requirement of reasonable assurance" (Second Renewed Motion, p. 27) is without basis. Egg Papile Affidavit at 1-2.

Fourth, with respect to Contention 7 and the ingestion pathway, LILCO completely ignores the fact that the ingestion pathway also includes the State of Connecticut, which has submitted no Plan for this Board's review. Indeed, even the LILCO Plan provisions referenced in the LILCO Motion do not

address the significant portion of the 50-mile ingestion pathway EPZ which is in Connecticut. Moreover, there is no basis for this Board to find that whatever ad han "best efforts" response may be presumed by the State of New York and Suffolk County would or could be coordinated or integrated with whatever unknown response may or may not be forthcoming from the State of Connecticut. For this additional reason, then, the LILCO Second i Renewed Motion on Contention 7 must fail.

Fifth, with respect to Contention 8, LILCO's reliance on its Plan's provision that " recovery and reentry decisions are made by l

a committee," that LILCO would set up such a committee and i

" invite the State and County to participate," and its conclusory 4

assertion that "there is no litigable issue over whether the (LILCO) Plan would work" (Second Renewed Motion, p. 27) must also be rejected. This record requires the Board to find that an ad j hgg "best effort" response by the State of New York and Suffolk County would not involve implementation of the LILCO Plan. Egg l Cuomo and LoGrande Affidavits, Attachments 1 and 2 hereto. There is simply no basis for LILCO's assertion to the contrary or its i

! purely speculative conclusions premised on that assertion. It l

would be clear error for this Board to adopt it.

6. Contention 10 LILCO's arguments concerning Contention 10 must also be rejected. They are based on distorted logic and they ignore l existing regulatory requirements. In addition, since they rely I

i l _ 73 _

, . - , - ~ . . , - _ , _ _ _ _ . _ _ . , _ _ _ , _ . _ , ~ , . . _ _ - _ _ . _ _- _ _. - . - m.__ _ _._ _ _ - ,_ ,..-_.__ _ _ .

on LILCO's arguments concerning Contentions 1 and 2 relating to traffic, they must fail for all the reasons discussed in section III.D.3. above on those contentions, which, for the sake of brevity, will not be repeated here.

.The distorted logic which permeates LILCO's discussion on this subject concerns the portion of Contention 10 relating to access control at the EPZ perimeter -- that is, preventing people from entering evacuated and potentially contaminated areas.

LILCO's argument on this subject is that because the LILCO Plan now proposes only to " discourage" entry into evacuated areas rather than to " control access" to such areas, it does not matter that there is no evidence as to whether, or how, an Ad h2g "best effort" response by the Governments would accomplish access control. LILCO neglects to mention that the reason its Plan was revised to state that its " Traffic Guides" would only

" discourage" entry to evacuated areas, was because the LILCO

^

employees have no legal authority to perform the access control

• function - precisely as Contention 10 alleges. The fact that

LILCO had to change its Plan in recognition of its lack of police i

power authority, however, does not eliminate the regulatory requirement that there be a demonstrated capability to " control i

access" to evacuated areas, as set forth in Contention 10. Esst NUREG 0654, Section J.10.j23 Thus, LILCO's Plan change has nothing to do with the issue presented by Contention 10 and by l

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23 The existence of the regulatory requirement for access l

j control also requires rejection of LILCO's argument that the

issues presented by Contention 10 are " moot." '

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LILCO's motion for summary disposition of that contention: can j this Board find that the regulatory requirements concerning access control to evacuated areas are met assuming an Ad h2E "best efforts" Government response, as to which this record is

. silent.- The answer is no.

E. The Second Renewed Motion Ignores the Commission's Emergency Planning Standards and Their Application to This Proceedina i

In advancing its arguments in favor of summary disposition, I LILCO conveniently ignores a number of NRC regulations which

preclude summary disposition. For instance, Section 50.47 requires a Commission finding of reasonable assurance based upon FEMA findings as to whether state and local plans are adequate i

and can be implemented. FEMA's findings must in turn be primarily based on a review of specific plans. FEMA's reviews of all of the various versions of the LILCO Plan, however, have presupposed no State or County response. Thus, there are no FEMA findings on any plan which includes a "best effort" State or County response. Moreover, FEMA has expressly stated that because the February 13, 1986 Shoreham exercise included no State I

i or local government participation, " FEMA cannot measure the capabilities and preparedness of state and local governments if

called upon to respond." FEMA Post Exercise Assessment (April 17, 1986) at ix, 3. In the absence of any such finding, t there can be no NRC finding that a "best effort" response will meet the " reasonable assurance standard of Section 50.47(a)(1).

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-* The distance between LILCO's Second Renewed Motion and any finding of compliance with NRC emergency standards is put into

• j even sharper profile when one considers specific elements of the 550.47(b) standards. Thus, for example, 550.47(b)(1) requires a specific assignment of primary responsibilities for emergency response, the specific establishment of the emergency respon-i sibilities of various supporting organizations and the identi-fication of responding staff for each of the principal response organizations. In short, this provision precludes speculation i about what a participating organization miaht do, or how its j

assumed tasks would be performed. LILCO's Second Renewed Motion, however, seeks summary disposition based only on speculation about an assumed ad h2g State and County "best effort" response.

I Recently, in its comments on the Commission's proposal to change f the rules on emergency preparedness (att 52 F.R. 6980 (March 6, 1987), FEMA clearly explained why reliance on Ad h2g governmental I

responses to radiological emergencies. FEMA stated:

The existing regulatory scheme anticipates i that there will be detailed, documented, i provisions in advance of an emergency for the

plume exposure emergency planning zone (10 t miles out from the plant) and that Ad h2g responses will be undertaken as necessary to supplement preplanned actions. This proposed rule would, in effect, sanction extensive

(

across-the-board ad hgg responses. The pro-t posed rule incorporates as a basic premise the

! assumption that State and local governments i are likely to respond in an actual emergency I

because state law requires them to do so and '

I also because that would presumably be the natural reaction of government officials in time of emergency. Even if the premise is valid, the Ad h2g nature of their response could have unfortunate consequences. It does .

( l

not assure that the full range of necessary actions will be taken. It does make it highly likely that any response will be uncoor-dinated. To the extent that utility company officials step into the roles of government officials, such as by recommending specific protective actions, there.is a high probabi-lity that the public and emergency responders will receive conflicting instructions.

Letter, dated April 28, 1987, from Dave McLaughlin, to Samuel J.

Chilk regarding " Comments on Proposed Rule on Licensing Power Plants where State and Local Governments Decline to Participate in Offsite Emergency Planning, p. 3.

Similarly, an applicant is required to have periodic I

exercises to evaluate major portions of emergency response capabilities. 10 CFR $ 50.47(b)(14). In the present case, the February 13, 1986 exercise of LILCO's Plan was carried out entirely by the LERO organization. As noted, FEMA acknowledged in its Post Exercise Assessment that that Exercise could not result in any findings about State or local governmental capabilities or response. It discussed the matter more comprehensively in its recent comments on the NRC's proposed rule change:

(T]he effect of the proposed change is to require a showing that the applicant has taken all reasonable and feasible steps to develop an offsite emergency plan and response capa-bility rather than a showing that the emer-gency response plans offer reasonable assurance that adequate measures to protect the public can be taken in the event of an emergency.

On its face, the proposed rule incorporates a fundamental change in the way that offsite emergency planning would be evaluated by FEMA

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if the NRC requests findings and determina-tions as to whether offsite emergency plans

are adequate and can be implemented. . . .

Even if exercises are conducted, their value is seriously diminished without the partici-i pation of State and local governments. . . .

FEMA ~is of the view that State and local participation, as in the present approach, offers all concerned with offsite emergency planning and preparedness a wealth of experi-ence and sensitivity to local circumstances, the loss of which could have serious adverse

, consequences for such activities at existing j and future plants.

L In February, 1986, FEMA participated in an f

exercise that did not include State and local governments. The roles of key government officials were played by FEMA employees. From this experience, FEMA concludes that the prac-tice of simulating governmental participation

has several important consequences. First, i the real-time interaction between officials and other ehergency responders is not realis-tically tested. That compromises the quality of the findings which FEMA is able to make about the preparedness of those other i responders. Secondly, the preparedness of the State and local governments is not demon-strated in any meaningful sense. As a result, the conclusions that FEMA would be called on to make about the probable response of State and local governments would be based largely .

i on conjecture. FEMA is very reluctant to

! certify that adequate protective measures can 3

be taken where any finding would be based on

such a degree of conjecture.

i l The refinement of emergency plans which is the

. natural outcome of an exercise could also be l compromised. The observations on which such l

refinements would be made are less valid without the participation of State and local

governments. . . . They are certainly not

likely to change their routines during an f l actual emergency, even if they are convinced i of the wisdom of the changes. The lack of training which would, in all probability, follow from holding exercises without State i

and local government participation would also i increase the risk to the population of the j affected emergency zones.

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Letter, dated April 28, 1987 from McLaughlin to Chilk, p. 2-3.

The NRC's prior decisions have also stressed the necessity of a oredetermined, coordinated offsite emergency plan as a condition of plant operation. For example, in Pennsylvania Power and Liaht Comnany and Alleahenv Electric Coonerative, Inc.

(Susquehanna Steam Station, Units 1 and 2), LBP-82-30, 15 NRC 771 (1982), the Licensing Board stated that "[o]ne of the fundamental principles of NUREG-0654 . . . is the integrated development of emergency response plans."24 111 Al&2 Philadelnhia Electric Co.

(Limerick Station), 22 NRC 681, ALAB-819 (1985).25 1

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24 Applying this principle, the Board determined that the County plan at issue required " additional specification in the allocation of State police manpower for access and traffic control points and also the manner in which local police resources (were] to be utilized." Id. at 796. The Board also stated that since the municipality's role regarding public notification "was an integral part of the warning system for disseminating appropriate information to the public . . . (such role] must be contained within the plan before operation . . . .

Id. at 797.

25 The Appeal Board in Limerick required the licensee to engage in additional preplanning with respect to the treatment of indi- -

viduals who are contaminated and injured onsite. Specifically, the licensee's offsite emergency plan relied inter alla on the existence of 19 hospitals in the general area for such treatment.

Citing Guard v. Nuclear Reaulatory Co--ission, 753 F.2d 1144 (D.C. Cir. 1985), the Board held that such reliance was improper since the licensee had not specifically identified such hospi-tals, had not obtained agreements from the hospitals to provide assistance in an emergency and had not established that the hospitals were sufficiently " equipped or prepared to handle contaminated persons." For other NRC decisions reviewing offsite emergency plans concerning adequacy of the licensee's preplanning and coordination efforts, agg, gigi, Metronolitan Edison Comnany (Three Mile Island Plant), ALAB-698, 16 NRC 1290, 1309 (1982).

("The development of the most effective emergency plan is an evolving and -- importantly -- cooperative process.")

J LILCO's Motion flies in the face of the existing regula-

- tions. LILCO would have this Board grant summary disposition and make findings of regulatory compliance without any evidence as to what the postulated Ad hag "best effort" government response i would be, and in the fact of no planning, preparedness, or training on the part of State and local officials. This Board cannot do so.

F. The Second Renewed Motion Ignores the Legislative History of Emergency Planning and the Regulatory

History Behind S 50.47 LILCO's Second Renewed Motion also ignores the legislative and regulatory history of the offsite emergency planning require-1 ments, which requires denial of the relief LILCO seeks.

Prior to the accident at Three Mile Island in March 1979,

{ there was no statutory or NRC requisite for an offsite emergency i

l plan as a condition of plant operation. The TMI accident starkly demonstrated the unacceptability of that situation. The response of the various governmental entities involved was Ad h2g and

! uncoordinated. No predetermined plan existed for protection of the public around the TMI plant; therefore, there was no clear

allocation of responsibility, no clear means of coordinating the I

efforts of those managing the emergency response and no clear de-lineation of the protective actions to be taken. Consequently, "the [ emergency offsite) response was dominated by an atmosphere i

! of almost total confusion." Report of the President's Cn==1ssion

on the Accident at Three Mile Island--The Need for Chance

The i

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...-. ,- ---,,,n,.n.,,,n - - ,...-.---. ..---n-,--.,,--..-...-....,-..-...-,--,,,,n_-,_-_-a-.n... --.

a Leoacy of TMI 17 (1979), quoted by Union of Concerned Scientists,

, 735 F.2d 1437, 1439 (D.C. Cir. 1984), ggIt. denied, 105 S. Ct.

l 815 (1985). Ett also Emeroency Plannina Around Nuclear Power 4 Plants: Nuclear Reaulatory Commission Oversicht, Fourth Report by the Committee on Government Operations, H. Rep. No.96-413.

I In response to the confused and uncoordinated response to i the TMI accident, and after extensive hearings concerning the

! general lack of offsite preparedness and preplanning,26 Congress i

enacted 5 109 of the 1980 NRC Authorization Act, P.L.96-295, S 109 (1980). Section 109 conditions an operating license on the existence of a state, local or utility plan which provides

! reasonable assurance that the public can and will be protected in the event of a nuclear accident.27 i Subsequently, the Commission adopted its current offsite i

emergency planning regulations, requiring a pre-existing offsite

emergency plan which allocates response responsibilities and 1

functions and provides for coordination among all responsible

parties. 10 CFR S 50.47 and Part 50, Appendix E. Those 1

! regulations are not founded upon speculation about ad han  ;

government responses. Rather, they focus on pre-planning with 1 --------------------

l 26 ER1, RA22, Emeroency Plannina Around Nuclear Power Plantar Nuclear Reaulatory Commission's Oversicht Hearinas Before a i Subcoomittee of the Committee on Government Onerations, 96th

! Cong., 1st Sess. (May 7, 10, 14, 1979).

l 27 Congress has repeated this requirement in the two NRC

Authorization Acts since 1980. Egg P.L.92-415,'S 5 (1983) and l P.L.98-533, S 108 (1984).

j . _ _ . _ _ _ _ _ _ _ . _ __ _ _ . _ _ - . _ . - . _

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specific allocation and acceptance of duties, identification of resources and capabilities, and training on implementation

! capabilities prior to an accident.28 LILCO's " realism" argument and its Motion seek a return to i

I pre-TMI days, and a rejection of the NRC's regulations. LILCO f argues that this Board should grant summary disposition as to the l adequacy of its Plan, despite the fact that the record is devoid 1

l of: any facts regarding what actions the State or County would

or could in fact take in an emergency; any facts concerning the

resources which would actually be available to the State or County to implement such actions; any facts concerning the means 1.

i by which the State or County would or could coordinate any I

response with each other, LILCO, or the federal government; or each other; any facts by which to judge the adequacy of an ad hag state or local response; any facts concerning what a "best

! efforts" government response would be, other than the sworn i

} statements by the Governments that it would nei be, l implementation of the LILCO Plan or acting in concert or in  ;

t partnership with LILCO.

j 28 Thus, as recognized by the Commission in CLI-86-13:

f The Commission's emergency planning regula-1 tions were generally intended to prevent a

! recurrence of the situation that arose shortly after the TMI-2 accident when, based on the fact as they appeared, some emergency response j - was called for but the prior planning and

) coordination between the utility and local j.

governments proved inadequate. <

j 24 NRC at 29.

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G. The Second Renewed Motion Ignores the Guard Decision and'the Need for an Identifiable Basis for NRC Comoliance LILCO's " realism" argument and its Second Renewed Motion further flies in the face of GUARD v. United States Nuciggt Reculatory Ca=aission, 753 F.2d 1144 (D.C. Cir. 1985). In that case, the court reviewed a determination by the Commission that 5 50.47(b)(12), which requires the licensee's offsite emergency plan to state " arrangements . . . for medical services for contaminated injured individuals," could be satisfied by a mere list of medical facilities in the area. The Commission based this conclusion on the assumption that adequate facilities would be available to serve exposure victims. 753 F.2d at 1149-50.

Thus, the Commission would have required no pre-accident inquiry into the sufficiency or capabilities of the listed facilities or whether any agreements had been made with such facilities concerning their activities during a radiological emergency. Id.

at 1147.

In rejecting the Commission's position, the court focussed on the fact that the 5 50.47(12) requirement was, by its terms, a condition for plant licensing. The court stated, id. at 1149, As an emergency planning standard to be met before an operating license issues, section 50.47(b)(12) requires that "(a]rrangements be made for medical services for contaminated in-jured individuals." The Commission inter-pretation of section 50.47(b)(12), however, allows medical services for radiation exposure to be arranged entirely ad hoc after the onset of an emergency. A nrovision callina for ore-event arranaements is not sensibly met by nost-event orescrintions.

. - . . - - - . . - - . .. .. . - - - . - - - . - . . - =_. -

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(Emphasis supplied.)

The decision in GUARD is dispositive of LILCO's Second Renewed Motion. GUARD absolutely rejects the notion that basic licensing standards established by the Commission can be i

satisfied by " assumptions" that currently unidentified resources will be available, or that unspecified actions will be taken, to

, protect the public in the event of a nuclear accident. LILCO's Second Renewed Motion consists of nothing but-such baseless and J

speculative LILCO assumptions. LILCO would have this Board i

determine that an adequate offsite emergency plan exists, based  !

l on the assumption that the State or County would decide on an Ad

+

! has basis during a nuclear accident to use unidentified resources to perform some unidentified " response" or to implement some or all of LILCO's Plan, and that such Ad h2g decisions, and actions,

would be adequate to protect the public and the NRC's regulatory l

standards. GUARD absolutely precludes the acceptance of such speculation as a basis for a licensing decision.

i V. CONCLUSION For the foregoing reasons, LILCO's Second Renewed Motion must be denied.

j Respectfully submitted, i

Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway l

Hauppauge, New York 11788 i

i

Ka 9 Luk Lawrence Coe/Lanpher /

Karla J. Le't' sche Christopher M. McMurray KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891 David A. Brownlee Michael J. Lynch KIRKPATRICK & LOCKHART 1500 Oliver Building Pittsburgh, Pa. 15222-5379 Attorneys for Suffolk County Fabian G. Palpmingf

.d .b ( 5 Richard J. Zahnleuter Special Counsel to the Governor 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 4. Lathain Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton

'A

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,' /.

4 STATEMENT OF MATERIAL FACTS AS TO WHICH THERE EXISTS A GENUINE ISSUE TO BE HEARD ON MATTERS RAISED BY LILCO'S SFCOND RENEWED MOTION FOR

SUMMARY

DISPOSITION OF CONTENTIONS 1-10

1. Whether, assuming an d D.g.E "best efforts" State and local government response to a Shoreham emergency, there is t

[ reasonable assurance that adequate protective measures can and

,t

,M ' ' will be taken as required by 10 CFR S 50.47(a)(1).

y

2. Whether, assuming an d hog "best efforts" State and local government response to a Shoreham emergency, there can be a

! finding of compliance with 10 CFR S 50.47(b)(3).

i

3. Whether, assuming an d hog "best efforts" State and

, local government response to a Shoreham emergency, there can be a

finding of compliance with NUREG 0654 S A.2.6.

i

4. Whether, assuming an d hog "best afforts" State and

{ local government response to a Shoreham emergency, the evacuation i routing, traffic control strategies, and procedures described in the LILCO Plan, OPIP 3.6.3, and the Appendix A, can and will be implemented.

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~T n.__________.__.________.-_.

5. Whether, assuming an ad hgg "best efforts" State and local government response to a Shoreham emergency, the assumptions concerning compliance with prescribed evacuation routes which underlie the evacuation time estimates contained in the LILCO Plan would be valid.

6. Whether, assuming an Ad h2g "best efforts" State and local government response to a Shoreham emergency, the evacuation time estimates in the LILCO Plan and the computer models from

which they were derived would be applicable, accurate, or appropriate, for use in making protective action recommendations.

7. Whether, assuming an ad hgg "best efforts" State and local government response to a Shoreham emergency, there can be a finding of compliance with 10 CFR S 50.47(b)(10).

8. Whether, assuming an Ad h2g "best efforts" State and local government response to a Shoreham emergency, there can be a finding of compliance with 10 CFR Part 50, Appendix E, S IV.

9. Whether, assuming an ad han "best efforts" State and local government response to a Shoreham emergency, there can be a finding of compliance with NUREG 0654 SS II.J.8, J.9.5, J.10, or Appendix 4.

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10. Whether, assuming an ad hag "best efforts" State and local government response to a Shoreham emergency, the traffic control measures and devices, such as roadblocks, prescribed turn movements, channelization treatments, one-way traffic direction, and blockage of lanes on the Long Island Expressway, as set forth in Appendix A, S 4 of the LILCO Plan, would be implemented.

11. Whether, assuming an ad hag "best efforts" State and local government response to a Shoreham emergency, the provisions for removing obstacles from public roadways as described in the LILCO Plan and in OPIP 3.6.3, will be implemented.

12. Whether, assuming an ad hag "best efforts" State and local government response to a Shoreham emergency, there can be a finding of compliance with NUREG 0654, S II.J.10.k.

13. Whether, assuming an ad hag "best efforts" State and local government response to a Shoreham emergency, obstructions and blockages on roadways caused by vehicles running out of gas can be effectively prevented or removed.

14. Whether, assuming an ad hag "best efforts" State and local government response to a Shoreham emergency, the provisions concerning the activation of sirens described in the LILCO Plan, and OPIPs 3.3.4 and 3.8.2 can and will be implemented.

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15. Whether, assuming an ad hqq "best efforts" State and local government response to a Shoreham emergency, an emergency broadcast system would be available or effective for use in providing emergency information to the public.

16. Whether and how, assuming an ad hqq "best efforts" State and local government response to a Shoreham emergency, the contents of messages to the public would be determined and how such messages would be disseminated to the public.

17. Whether, assuming an ad hqq "best efforts" State and local government response to a Shoreham emergency, there can be a finding of compliance with l'0 CFR S 50.47(b)(5).

18. Whether, assuming an ad hoc "best efforts" State and local government response to a Shoreham emergency, there can be a finding of compliance with NUREG 0654, S II.E.5 and E.6.

19. Whether, assuming an ad hqq "best efforts" State and local government response to a Shoreham emergency, there can be a finding of compliance with 10 CFR, Part 50, Appendix E, S IV.D.3.

20. Whether, assuming an ad h2g "best efforts" State and local government response to a Shoreham emergency, all command and control functions, and management and coordination of an entire emergency response can and will be implemented as described in the LILCO Plan and OPIPs 2.1.1, 3.1.1, and 3.6.1 l

21. Whether, assuming an ad hgg "best efforts" State and local government response to a Shoreham emergency, necessary planning, ordering, controlling, and' implementation of an offsite response, including appropriate protective actions, can and will be implemented.

22. Whether, assuming an ad hqq "best efforts" State and local government response to a Shoreham emergency, there can be finding of compliance with 10 CFR S 50.47(b)(6).

23. Whether, assuming an ad h2g "best efforts" State and l

local government response to a Shoreham emergency, there can be a finding of compliance with NUREG 0654, 5 II.E.7.

24. Whether, assuming an ad h2g "best efforts" State and local government response to a Shoreham emergency, there can be a finding of compliance with NUREG 0654, S II.G.

25. Whether, assuming an ad hag "best efforts" State and local government response to a Shoreham emergency, the determination of protective action recommendations for the 50-mile ingestion exposure pathway EPZ, as described in the LILCO Plan and OPIP 3.6.6, can and will be implemented.

26. Whether, assumittg an ad hgg "best efforts" State and local government response to a Shoreham emergency, protective action recommendations for the 50-mile ingestion exposure pathway EPZ can and will be disseminated to the public as set forth in the LILCO Plan and OPIP 3.6.6.

I

27. Whether, assuming an ad hag "best efforts" State and local government response to a Shoreham emergency, protective action recommendations for the 50-mile ingestion exposure pathway EPZ can and will be implemented as described in the LILCO Plan and OPIP 3.6.6.

28. Whether, assuming an ad hgg "best efforts" State and local government response to a Shoreham emergency, protective action recommendations for the portion of the 50-mile ingestion exposure pathway EPZ contained in the State of New York would be consistent, coordinated, and integrated with whatever protective action recommendations would be made by the State of Connecticut for the portion of the 50-mile EPZ within that State.

29. Whether, assuming an ad hag "best efforts" State and local government response to a Shoreham emergency, there can be a finding of compliance with 10 CFR S 50.47(c)(2).

30. Whether, assuming an ad hgg "best efforts" State and local government response to a Shoreham emergency, there can be a finding of compliance with 10 CFR Part 50, Appendix E, S IV.A.8.

31. Whether, assuming an ad hgg "best efforts" State and local government response to a Shoreham emergency, there can be a finding of compliance with NUREG 0654, S II.J.ll.

32. Whether, assuming an ad hag "best efforts" State and local government response to a Shoreham emergency, short-term and long-term recovery and reentry operations as set forth in the LILCO Plan and OPIPs can and will be implemented.

33. Whether, assuming an ad hgg "best efforts" State and local government response to a Shoreham emergency, recovery and reentry decisionmaking, processes, and functions can and will be initiated and implemented as set forth in the LILCO Plan.

34. Whether, assuming an ad hag "best efforts" State and local government response to a Shoreham emergency, there can be a I

finding of compliance with 10 CFR S 50.47(b)(1).

i

35. Whether, assuming an ad hqq "best efforts" State and local government response to a Shoreham emergency, there can be a finding of compliance with 10 CFR S 50.47(b)(13).

36. Whether, assuming an ad hqq "best efforts" State and local government response to a Shoreham emergency, there can be a finding of compliance with NUREG 0654, S II.M.

37. Whether, assuming an ad hqq "best efforts" State and local government response to a Shoreham emergency, access control at the EPZ perimeter, to prevent access to potentially contaminated areas, can and will be implemented.

38. Whether, assuming an ad h2g "best efforts" State and local government response to a Shoreham emergency, there can be a finding of compliance with NUREG 0654 S II.A.2.a.

39. Whether, assuming an ad h2g "best efforts" State and local government response to a Shoreham emergency, there can be a finding of compliance with NUREG 0654 S II.J.10.j.

40. Whether State and County officials and employees who would be responsible for directing and implement an ad h2E "best efforts" government response to a Shoreham emergency, are sufficiently familiar with the LILCO Plan to be able to implement all or a portion of it, with or without LILCO assistance.

41. Whether the State of New York has seven controlled copies of the current version of the LILCO Plan.

42. Whether Suffolk County has 18 controlled copies of the current version of the LILCO Plan.

43. Whether Suffolk County Police officers are sufficiently familiar with the LILCO traffic control scheme to enable Suffolk County to implement all or a portion of it with or without LILCO assistance.

44. Whether WALK radio is available, capable or willing to trigger tone alert radios located in institutions in the EPZ.

45. Whether, an ad h2g "best efforts" response by the State and local governments, the States and County ad hqq response would be adequate, coordinated, or integrated, or sufficient to protect the public health and safety in the event of a radio-logical emergency at Shoreham.

46. Whether, LILCO can contact the State of New York via RECS line.

47. Assuming an ad hoc "best efforts" State and local government response to a Shoreham emergency, how long would it take for the public to be alerted about the existence of a Shoreham accident?

48. Assuming an ad hqq "best efforts" State and local government response to a Shoreham emergency, how long would it take for decisions and recommendations concerning protective actions for the public to be made?

49. Assuming an ad h2g "best efforts" State and local government response-to a Shoreham emergency, how long would it take for decisions and recommendations as to protective action recommendations for the ingestion pathway to be made?

50. Assuming an ad hag "best efforts" State and local government response to a Shoreham emergency, how long would it take for decisions and recommendations concerning recovery and l

l reentry actions to be made?

51. Assuming an Ad h2g "best efforts" State and local government response to a Shoreham emergency, how long would it l

take for protective action recommendations to be communicated to the public?

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52. Assuming an ad hqq "best efforts" State and local government response to a Shoreham emergency, how long would it take to achieve effective access controls?

53. Assuming an ad hqq "best efforts" State and local government response to a Shoreham etargency, would evacuation be a viable protective action or one which would provide adequate protection for the public health and safety?

54. Assuming an ad hqq "best efforts" State and local government response to a Shoreham emergency, would sheltering be a viable protective action which would provide adequate protection for the public and safety?

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