ML20214N384
| ML20214N384 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/22/1987 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20214N366 | List: |
| References | |
| OL-3, NUDOCS 8706020158 | |
| Download: ML20214N384 (22) | |
Text
_
n lb LILCO, M!y 22,1987 D0t r.E T EC:
'94RC W g 27 P12.00 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFM.,e - MMN 00CFly~ ides Before the Atomic Safety and Licensing Board In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S REPLY TO INTERVENORS' ANSWER TO MOTION FOR
SUMMARY
DISPOSITION OF THE " LEGAL AUTHORITY" ISSUES AND MOTION FOR REFERRAL TO THE COMMISSION On July 24,1986, the Commission decided CLI-86-13 and accepted the " realism" principle. On March 20, 1987, LILCO filed its Second Renewed Motion for Summary Disposition of the " Legal Authority" Issues (Contentions EP 1-10) asking that the real-Ism principle be applied to the facts of this case. The Intervenors, af ter receiving a substantial extension of time to respond, filed their answer on May 11,1987 (Answer of Suffolk County, the State of New York and the Town of Southampton to "LILCO's Sec-ond Renewed Motion for Summary Disposition of the ' Legal Authority' Issues (Conten-tions EP1-10)"). This is LILCO's Reply to the May 11 Answer. Accompanying this Reply is a motion for leave to file it.
?
I. The Intervenors' Answer Fails to Confront the Facts Intervenors' Answer is insufficient as a legal matter, because it fails to show the existence of any material, litigable issue of fact. The Intervenors' Answer is a legal brief; it makes no effort to engage the facts of how an emergency response would occur under a " realism" scenario. Likewise, it fails to show how an evidentiary hearing would shed anylight on theissussa 870602015'd 870522 PDR ADOGX 05000322 G
t Nevertheless, the Answer h_as helped to narrow the issues,O ecause it has the b
effect of admitting almost all the 63 facts relied on in LILCO's Motion. Section 2.749(a) of 10 CFR provides that a party who moves for summary disposition must annex a statement of the " material facts" as to which he contends there is no genuine issue to be heard. Likewise, there must be annexed to any answer opposing a motion for sum-mary disposition a " separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be heard." The opponent of the motion is required to address the movant's statement of facts:
All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
10 CFR S 2.749(a)(1986)(emphasis added).
Instead of either admitting of denying the 63 facts annexed to LILCO's Motion, the Intervenors draf ted a " Statement of Material Facts" that is in reality a statement of 54 issues questions the Intervenors claim are unresolved. These 54 questions si nply do not engage the 63 facts stated by LILCO.E Hence, under the regulation the Board's analysis must start with the reality that the facts underlying the Motion are almost en-tirely undisputed. For example, the Intervenors have admitted Fact No. 46: "If a ra-diological emergency were in progress at Shoreham, New York State and Suffolk County would attempt to stay in contact with LILCO or LERO or both." Likewise they admit that the RECS line and a dedicated phene line connect LILCO with the Suffolk County police (Facts No. 8,13). They admit that the existing State EBS covers the Shoreham y
See Memorandum and Order (Ruling on Intervenors' Motion to Convene Confer-ence of Counsel, and Other Relief), Apr. 10,1987, at 7. ("The filing of the motion pro-motes the focusing of the issues of the CLI-86-13 remand proceeding early on.")
a,....e a m,+
..,. m 2)
Moreover, the-issues as stated by"t,hrifftervenors are' mere legal bouerplatop mostlyWhghhethiW LILCO compiled wturtubh-4HlFsudi a(WidinineD N' ' nN s n,,,u
,e.
EPZ (Facts No.14-17) and can be activated by a number of State and county officials (Facts No.18-27). They admit that the State emergency plan provides for the State to take over management of a response where a county cannot or will not put a plan into effect (Fact No. 38) and when the Governor declares a state of emergency (Fact No.
39). They admit that the Suffolk County Charter makes the Department of Fire, Res-cue, and Emergency Services responsible for maintaining operational liaison with "all cooperating private agencies," including utility companies (Fact No. 48). And so on.
Indeed, the only facts the Intervenors do not fully admit are Nos. 40, 41, 42, 43, and 58, which go to the issue of how " familiar" State and County officials and police are with the LILCO plan and how many copies of it they have, and Nos. 8,9, and 10, which go to the location and " operability" of the RECS line drops.W Moreover, the Intervenors have failed to " set forth specific facts showing that there is a genuine issue of fact." 10 CFR S 2.749(b) (1986) (emphasis added); Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2) ALAB-584,11 NRC 451, 453 (1980). A good example is on page 30 of the Answer, where the lawyers argue i
that in an emergency the State and County "would likely respond to a Shoreham emer-l gency in ways very different from those set forth in the LILCO Plan." The lawyers make no attempt to specify what their clients would do differently from the LILCO plan. Would they refuse to sound warning sirens when the plant declared a General Emergency, for example? They do not say.
In only two respects do the Intervenors provide specific facts:
3/
In footnote 16 on page 39 the Intervenors' lawyers argue that Fact No. 24 is "no doubt false." The Intervenors' lawyers present no affidavit or other evidence to support their claim, and they are incorrect in any event.. WALK. is part of the official State-EBS. Every week, when WALK tests its emergency tone, the tone alert radios come on.'
In fact, at least two LERO personne1 heard tone alerts come on as recently as May 12.t-Thus Fact No. 24, like most of the othersnmustsheedeemed admitted.
_.m..,_
- -. x --- -
1.
They have specified the number of complete copies of the LILCO Plan that they think they pnanaes; and 2.
They have given certain details about the location and
" operability" of RECS lines to State offices.
The Answer also raises a third factual issue, though without giving the " specific" facts called for by the regulation:
3.
Intervenors claim they are not " familiar" with the LILCO Plan. (The " facts" here are General Papile's and Mr. LoGrande's opinions that some State and County personnel are familiar enough with parts of the plan to give sworn testimony but not familiar enough to "im-plement" the plan.)
In all three cases llisted above the " facts" recited in the Answer are insufficient to show a dispute of material fact.
First, the number of copies of the plan in the Intervenors' hands is not critical.
Apparently the Intervenors have lost some of the copies sent to them and have failed to update others. There is certainly no point in having a hearing on this issue, especially since the Intervenors can change the facts if they want by discarding their remaining copies. But they admit that they have access to one or more copies of the plan. Even if they did not, the existence of an entire organization (LERO) that is familiar with the plan, plus the ability of LERO to communicate with State and County officials in an emergency, is sufficient.
Likewise, the suggestion in the Answer that LILCO could not reach the State by RECS line is immaterial. The Intervenors are deemed to have admitted that the RECS line to Suffolk County (as opposed to the State) still works (see Fact No. 8). Also, there are back-ups to the State: LILCO could call the State by ordinary phone, or LILCO could call one of the operating plants in the Sta.te and have them call the State on their RECS line.M Moreover, while the State may have moved its offices, the State Police mwn. w;
. m.;,, r i r cous tu a;
numI, s er o us. m nivo.:me anat tais m " ey q
g Another boek-up, not mentioned in theisseen@ Renewed Motiopris to call the NRC in King of Prussia, Pennsylvania. The NRC'dadalways' reach the State.
t
--y,re,,
+-r, r,-
- ~ -
.e n.,--w
=-m=,
,---n.-g-
~, -
-,--e,-wem-
,,,-m,-,
~.g
,~,,,,w,
m --
l '
Warning Point is still in the same building as the LILCO RECS line (Second Renewed Motion at 9 n.10; Fact No. 9.b); the fact that State officials might have to run up-or downstairs to reach the phone is not critical. General Papile's statement that the lines are "not operational" appears to mean that the phones have been unplugged; they can of course be plugged back in, and there is no point in having a hearing to say so. The "best effort" principle requires that conclusion in any event. See LILCO's Second Re-newed Motion at 10-11 n.12.
Finally, the claim that Intervenors are not familiar enough with the plan to "im-plement"it does not raise a litigable issue. LILCO has a full complement of people who are familiar with the Plan and trained to implement it. If any State or County deci-sionmaker has a question about how the plan works, he need only ask.
In short, LILCO has proved that the resources are available; except in minor re-spects,W the Intervenors do not dispute this. Moreover, the will to make a "best effort" in an emergency would clearly be present; no one disputes this either. Given the pres-ence of an adequate plan, and the fact that the State and County would use the plan as "the source of information and options," no more is required to satisfy NRC regulations.
- 11. The Intervenors' Legal Arguments Are Incorrect As a Matter of Law As noted above, the Intervenors' Answer raises few issues of fact and concen-trates on legal and political arguments. These legal political arguments are incorrect as a matter of law. They are five in number:
1 I
i 5/
The Intervenors argue (see, e&, Answer at 42-47) that the LILCO plan has still not been completely approved by the NRC because a few issues are still in litigation.
This argument should be treated as a diversion. The argument that some hitherto unproved flaw in the plan would make even a "best effort" by the Intervenors inade-quate is an issue to be resolvad in the other hearings and not duplicatively under the
" legal authority" contentione Moreover, none of the remaining open issues goes to the:
fundamental issuesrusetrar whether emergency 1planningelsofessible for lang Island, _
whether the EPZ should be gr :stly expanded, or whether LILCO's evacuation time estt-mates are accurate.
- y n
A.
Intervenors will never " implement" the LILCO plan be-cause their leaders swear they will not.
B.
Intervenors will never implement the LILCO plan be-cause they have decided it is inadequate.
C.
"No one knows" what Intervenors would do in a real emergency.
D.
Intervenors are untrained, unprepared, and unfamiliar with the LILCO plan.
E.
Intervenors cannot legally make use of the LILCO plan.
LILCO responds to each of these arguments in turn below.
A. The claim that Intervenors will never implement the LILCO plan because their leaders swear they will not Intervenors offer affidavits from the Governor, the County Executive, and a po-lice officer sweering that the Intervenom will not " implement" the LILCO plan, " rely" on LILCO recommendations, work in partnership with LILCO, and the like. These affi-davits do not raise a litigable issue for two reasons.
First, these are the same statements that the Commission has said are not to be taken at face value. CLI-86-13,24 NRC at 29 n.9.
Second, these statements contradict the "best effort" finding of CLI-86-13. They are true only if we assume that the things the affiants say they would not do are not re-quired to make a "best effort" to protect people. The truth is that Intervenors would (for example) rely on a LILCO recommendation if that were the best way to protect people.
B. The claim that Intervenors will never implement the LILCO plan because they have decided it is inadequate The Intervenors argue that they will not implement the LILCO plan because they have decided it is inadequate. This argument raises no litigable issue because it chal-lenges the NRC's authority, as articulated in a host of regulations, Commission deci-
>l sions, and federal court decisionsu,.
- ne inwrvenw 1
1
. l f
- 1. The Answer challenges the 10-mile EPZ regulation In particular, the Answer challenges the 10-mile EPZ rule,10 CFR S 50.47(c)(2).
Indeed, the Answer makes clear that the Intervenors' opposition to Shoreham rests at bottom on disagreement with this feature of federal law. The Intervenors claim that they would never " implement" LILCO's plan because they do not agree with the 10-mile EPZ established by federal regulations:
For example, as this Board knows, the Governments have contended, 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 artificial 10-mile zone created by LILCO is inappropriate and dangerous. See ALAB-832. This Board is well aware -
and cannot ignore - that a Government "best efforts" re-sponse, whatever it would be, clearly would not include an ac-ceptance of the planning zone concept fashioned by LILCO, or decisionmaking which incorporated that concept.
Answer at 58 (emphasis in original).EI
- 2. The Answer challenges the "best effort" finding of CLI-86-13 i
Also, the Answer challenges CLI-86-13. While the Intervenors do not deny that they would engage in a "best-effort" response to a real emergency, they appear to chal-lenge the Commission's finding that a "best effort" would include using the LILCO plan as "the source for basic emergency planning information and options." To the extent their Answer is based on a challenge to this finding (and to a large extent it is), this Board must reject it. The Intervenors must make this argument to the Court of Ap-peals.
!/
As the record shows, the 10-mile EPZ was " created" not by LILCO but by Suffolk County and New YoricState planness.. Cardarset ab, ff. Tr. 4636, at 9-10.t It was than modified atttho' order of athis BoardwEBP-et>68rNEC 644rt?tS44f'700+(1988), LBRteAr 31,' 22 NRC'410, 429 (1985hs.'
6
- 3. The Answer challenges the Commission's decisionmaking authority In addition to challenging part of the "best effort" finding of CLI-86-13 specifi-cally, the Intervenors' Answer challenges generally the Commission's authority to judge the adequacy of nuclear power plant safety. Again and again the Answer makes the point that, since the State and County have judged the emergency plan to be inade-quate, they will never " implement"it. For example:
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.
Affidavit of Michael A. LoGrande, quoted in Answer at 32. The Answer challenges this Board's findings, which have been affirmed by the Commission, on evacuation time esti-mates and a host of other issues. Indeed, Intervenors offer an affidavit by one of the County's lawyers reciting testimony that the Board has already heard, and for the most part rejected, as a basis for decision.
This argument by the Intervenors is contrary to several Commission decisions.
For example, in CLI-83-13 the Commission noted its " ultimate authority" to determine whether NRC requirements are met:
[T]he agency is obligated to consider a utility plan submitted in the absence of State and local government-approved plans and has the ultimate authority to determine whether such a i
submission is sufficient to meet the prerequisites for the issu-l ance of an operating license.
CLI-83-13,17 NRC 741, 743 (1983). Likewise, in CLI-85-12 the Commission rejected the suggestion that a state or county would defy NRC findings on health and safety:
We note that our Licensing Board in its decision of April 17,1985 (LBP-85-12,21 NRC 644), has found that an ad-equate emergency plan is in fact achievable if the State and County participate in emergency planning, as all other local and State jurisdictions have done when so called upon. Like any litigants before us, these Intervenors may challenge the adequacy of this Board's determination, but they may not sim.uwe evioenea; j
ply substitute their own judgment for the Commission's re-tl garding what the pubtle health and safety requires for licens-ti ing the operation of a nuclear power plant. Congress has
'l entrusted the protection of public health and safety in
n matters concerning nuclear power to the Commission, not to Suffolk County or New York State.
See Pacific Gas &
Electric Co. v. State Energy Resources Conservation and DeveloDment Commission, 461 U.S.190, 205 (1983). Accord-ingly, we believe that the County and the State must recog-nize that when a health and safety issue has been fully litigated before the Commission, the Commission's final judg-ment, subject to judicial review, must be the controlling de-termination, even if some continue to disagree with it.
Thus, while we express no opinion concerning the Board's decision while it remains under administrative review, we are confident that if the Commission upholds the Licens-ing Board's finding that an adequate emergency plan is feasi-ble with State and local participation, the State and County will accede to that judgment and will provide the participa-tion needed to make the plan successful. In short, we shall not take as an element of uncertainty in the eventual full-power operation of Shoreham the possibility that either the State or the County will refuse to cooperate with LILCO on I
the basis of their own conception of what radiological public health and safety requires, rather than on the findings of the Commission.
CLI-85-12,21 NRC 1587,1589-90 (1985) (emphasis added). To the same effect, see the preamble to the Commission's recently proposed rule:
I First, if a plant began operation under the circumstances per-mitted by the proposed regulation change, and all administra-tive and judicial remedies available to plant opponents have l
been exhausted, it seems reasonable to expect that the gov-crnments involved more likely than not would change their l
position and cooperate in planning. The governments or oth-l ers may dispute whether planning is adequate, but it would seem fairly indisputable that the adequacy of a plan with co-operation will be enhanced relative to a utility-sponsored plan I
without it. In these circumstances, the governments and the citizens they represent would have much to gain and nothing to lose from cooperation.
52 Fed. Reg. 6983 cols.1-2 (Mar. 6,1987).
To the same effect, the Commission in a Memorandum and Order of January 30, 1986, said that the Intervenors could not obstruct its inquiry:
For the past several years the State, County, and Town have been claiming that no adequate plan can be developed for Shoreham, and that the LILCO. plan,la inadequate They am l
entitled, as litigants beforousuta advooste4 hat peeltion; they w,-
are not, however, entitled teioteeract our inquiry into the
~u facts necessary to enable us to resolve that assertion.
CLI-86-14,24 NRC 36,41(1986)(footnote omitted).
The Intervenors' Answer is also contrary to Judge Brenner's decision in 1983:
Accordingly, we hold that we are not bound by the County's findings on the adequacy of the LILCO offsite plan or the feasibility of developing adequate emergency planning for Shoreham. Our determination that the County has made such findings in contradiction to federal law does not have the effect of requiring the County to adopt or implement an emergency plan for Shoreham. We do not possess the jurisdic-tion necessary to bring about such a result. However, if the County seeks to have its findings adopted, it must litigate be-fore us the facts which it believes support its view that it is not feasible to implement emergency preparedness actions which would meet NRC regulatory requirements in the event of a radiological emergency at the Shoreham nuclear power plant. The right of the County to litigate whether necessary emergency actions can be taken may be distinguishable from the circumstance of a governmental litigant before us which simply refuses to take otherwise feasible actions.
LBP-83-22,17 NRC 608, 643 (1983), aff'd on other grounds, CLI-83-13,17 NRC 741 (1983).
The Intervenors' argument also run counter to several federal court decisions.
First, in Citizens for an Orderly Energy Policy v. County of Suffolk,604 F. Supp.1084 (E.D.N.Y.1985), Judge Altimari reaffirmed the exclusive authority of the NRC to rule on the adequacy of an emergency plan:
The County has not and cannot supersede the judgment of the NRC on whether or not a license should issue for Shoreham.
Once the NRC makes that decision the County's opinion on j
l LILCO's RERP will become academic.
604 F. Supp. at 1095 (emphasis added), aff'd, 813 F.2d 570 (2d Cir.1987)'(per curiam).
l Similarly, in an earlier decision (not involving emergency planning) the Second Circuit said as follows:
If, as the district court found, Suffolk's claims were motivated by safety concerns, they are preempted. Moreover, even as-suming the relief sought was not motivated by safety con-corns, the claims still are preempted if they would impermis-sibly infringe on the.NRC's,emalusiverregulatory authorityeneix eum-mmt n ut reganEng the construetteeeed opesettenP atefaellity.nym kwreed, twt:
,y..-, e n.;o c t-m._ _.
n County of Suffolk v. Long Island Lighting Co.,728 F.2d 52,58-59 (2d Cir.1984). And, in Long Island Lighting Co. v. County of Suffolk, 628 F. Supp. 654 (E.D.N.Y.1986), Judge Wexler said as follows:
It is manifestly clear from an examination of the legislative history, however, that Congress by no means intended to allow local governments to frustrate or impede the NRC's ability to evaluate a utility RERP, either passively, through non-acquiesence [ sic], or actively, through a prohibition such as Local Law 2-86....
The County's attempt to stop the February 13 exercise on the grounds that LILCO will be usurping the County's police pow-ers is of a piece with the County's 1983 determination that Shoreham should be abandonded as unsafe. Because the Coun-ty passed Local Law 2-86 in an attempt to continue its oppo-sition to the Shoreham facility on the basis of a perceived ra-dialogical hazard, this Court concludes that Suffolk County has impermissibly intruded into a sphere of authority reserved exclusively to the federal government by Congress.
628 F. Supp. at 664-66.
In short, large parts of the Intervenors' Answer are based on the proposition that Intervenors will never " implement" the LILCO plan because they have decided it is in-adequ'te. This argument must be rejected as a matter of law. It follows that the argu-ment raises no litigable issue.
C. The claim that "no one knows" what Intervenors would do in a real emergency Intervenors argue that there is a lack of evidence on how they would behave in a real emergency. The reasons this does not raise a litigable issue are several, j
First, the Intervenors once again state no specific facts; instead, they simply
)
pose a series of questions. Since the facts about how they themselves would behave are squarely in their control, this must be taken as a default.
Second, the Intervenors fall utterly to show how an evidentiary hearing would shed any further light on this lasue. The Interveness have had many opportunities to
.r...s,... a. a... ", e rc
?<
n
~_
O,
present evidence on how they would act in a real emergency, and they have adamantly refused to do so. There is no reason to think they act any differently in yet another hearing. Certainly they do not in their Answer suggest any evidence they might pres-ent that would be material to this issue.II Third, this is simply another challenge to the Commission's authority. The Inter-venors are saying that the Commission cannot decide the issues because the Intervenors refuse to talk.
Fourth, we do know a good deal about what the Intervenors would do in a real emergency. They would use their "best effort" to protect the public. CLI-86-13. They would use the LILCO plan as "the source for basic emergency planning information and options." CLI-86-13. They would " attempt to stay in contact with LILCO or LERO or both"(Fact No. 46). They would fulfill their responsibilities under State law; for exam-ple, the County would fulfill its responsibility to " maintain operational liaison" with cooperating private agencies like LERO (Fact No. 48). Given these undisputed facts and given the existence of a full complement of LERO personnel and equipment suffi-cient by itself (except for legal authority) to carry out the plan, no more evidence is needed.
Intervenors argue, in effect, that LILCO cannot meet its burden of proof without providing a script of who in the State or County governments would do what, and how fast they would do it, in an emergency. But such a script is not required. No one, for any emergency plan in the country, can say in advance what decisions public officials 1/
The Intervenors argue (Answer at 11 n.7 and 83-84) that GUARD v. NRC, 753 F.2d 1144 (D.C. Cir.1985), requires a hearing. This argument is largely a challenge to the CLI-86-13 "best effort" finding. Moreover, GUARD v. NRC clearly does not abolish the NRC's summary disposition regulation or require a hearing when there is no littrable issue. Finally, no one is calling for a key finding to be made without evidence.
Ahuge evidentiary 4 record underlies LILCO's motion for summary disposities.sneeless and the best effort " assumption" itself la supported by record evidence. See Cordero and Weismantle,.ffs Trs 13,899,,at. 7.e wmo, w
n
~
will make or how quickly they will make them in a future emergency. There will al-ways be a possibility that some official will delay or make a mistake. There will always i
be ad hoe actions in real emergencies; emergency plans must be flexible enough to re-spond to unforeseen developments. That is why a plan must be designed to respond to a
" spectrum" of accidents rather than to one specific accident. Shoreham is no different in this respect than any other nuclear plant. What is required is not a detailed script but rather a showing that the decisionmaking apparatus, the communications, and the other resources (for example, monitoring equipment and evacuation buses) are in place.
LILCO has provided these through LERO; given a "best effort" to use them, as estab-lished by CLI-86-13, there can be no negative finding.
Mere uncertainties about precisely how a future accident scenario might unfold (which are inevitable in predic-tive findings) are insufficient to raise a litigable issue.
The Intervenors also argue that CLI-86-13 orders the Board not just to address the realism issue but more specifically to hold a hearing on the issue. This is not the case. The Commission did not address whether there were litigable issues and certainly did not nullify its summary disposition regulation. The Commission did say it was i
unwilling to assume that a best-effort government response would be adequate, but LILCO is not asking anyone to " assume" that now. LILCO is asking the Board to find that the response will be adequate based on the record already compiled, the findings of
[
CLI-86-13, and the facts set out (and now admitted) in the Second Renewed Motion.
I When CLI-86-13 was decided the Board had undertaken no analysis to apply the "best effort" principle to the existing facts; that is what LILCO asks now.
Moreover, CLI-86-13 directs the Board to "use the existing evidentiary record to the maximum extent possible" and to take additional evidence "where necessary." 24 6
NRC at 32. The whole point of the Second Renewed Motion is that no further evidense t
am iS "Mry "
\\;
,.m r
w
n D. The claim that Intervenors are untrained, unorepared and unfamiliar with the LILCO plan Intervenors argue that they are unprepared and unfamiliar with the LILCO plan.
The argument is that, even admitting the presence of an adequate plan and the will to use it by the State and County, the State and County would be unable to use it. They are familiar enough with it to testify, they say, but not to " implement" it.I This claim, like the others, f alls to raise any litigable issue.E! One reason is that despite their argument about how " familiar" they are with the LILCO plan, the State and County people already know how to do the basic things that need to be done. The police know how to direct traffic and will have access to a diagram of what traffic should do (Facts No. 55,60). The State people know how to monitor food and drinking water.EI Any County official knows that if evacuation is projected to result in a dose of 6 rem and sheltering of 8 rem, the preferred action is evacuation (see Fact No. 45).
Another reason is that LILCO has provited not only a plan and equipment (buses, for example) but a full complement of people to implement the plan and (as necessary) explain it to the State and County. It may be true that if the Intervenors had suddenly to implement the LILCO plan all by themselves, they would not be able to. But that is beside the point. LILCO has provided a complete implementing organization; all the In-tervenors have to do is talk to that organization, as they admit they would (Fact No.
46).
Thus, each and every State and County official who is said to be unable to 1/
Sometimes the Intervenors liken this situation to the TMI experience, where of-ficials had the best intentions in the world but still did a poor job. But at TMI there was no adequate offsite emergency plan; at Shoreham there is both the will to protect the public and an adequate plan.
2/
It does, however, raise additional doubt about the Intervenors' claims over the years that the testimony of their witnesses should be given extra weight.
19/
Indeed, part of the Indian Point 50-mile EPZ overlaps the western part of the Shoreham 50-mile EPZ. If the State can monitor food and water for Indian Point, it can do the same thing in the same places for Shoreham.
O,
implement the plan has someone in LERO or the DOE RAP Team to whom he can turn for information; LILCO has in effect provided a tutor for each of the government peo-pie who are said to be unable to implement the plan. In light of this undisputed fact, the only way that the State's and County's !gnorance of the plan could hurt the public health and safety would be if the State and County officials refused to rely on the re-sources that LILCO has made available. And this would be contrary to the " realism" findings of CLI-86-13 and contrary to a series of other Commission and ASLB findings, recited above, that hold that the Intervenors may not by their own intransigence pre-vent the NRC from making a decision.
E. The claim that Intervenors cannot legally make use of the LILCO plan In perhaps the weakest of their arguments, the Intervenors argue that they would lack legal authority to use the LILCO plan in a best effort to protect the public.
They appear to rely on the Cuomo v. LILCO holding that the State may not delegate away its police powers.
Cuomo v. LILCO certainly says the State may not " delegate" its police power.
But it cannot seriously be argued that this means a government may not use private re-sources in an emergency. For example, if the Governor or a county official directs LILCO to sound LILCO's sirens, no one can claim that the law is being violated. If the County Executive tells the LERO Director to read a message over the radio, he has not delegated away his authority. If the police commissioner agrees that LERO traffic guides should direct traffic untti policemen can reach their posts, nothing inconsistent with Cuomo v. LILCO has occurred. Cuomo v. LILCO is premised on there being no l
government participation at all. Realism contemplates no such thing.N 11/
LILCO argued that this purely hypothetteal foundation of the IntervenerW een-plaint made Cuomo v. LILCO nonjusticiable. The New York courts have esegreed, but:
(footnote continued)
Finally, even if there were some New York law that this government-private re-sponse would violate, the State and County have the power to override it and would do so if necessary to make a "best effort" to protect the public. N.Y. Exec. Law, Art. 2-B, SS 24.1.f,29-a (McKinney 1982).
III. The Board Should Avoid Getting Herred Down in Extraneous Arguments in what is said above LILCO has tried to sort out and address the Intervenors' ar-guments that are relevant to the " legal authority" issue. In addition, the Intervenors spend a good deal of time in their Answer raislag issues that are not important and should be passed over lightly by the Board.
For example, the Intervenors spend a good deal of time on the " history" of the legal authority issues. They claim that LILCO's realism theory was first stated in its i
first motion for summary disposition in August 1984. In fact, the " realism" principle was set out in "LILCO's Memorandum of Service of Supplemental Emergency Planning Information," dated May 26,1983:
But we emphasize the word " interim." It is LILCO's belief that Suffolk County will eventually resume its role in offsite planning, and that whether or not the County does I
resume a planning role, it is likely that County personnel would act to protect the public during a real emergency. Ac-cordingly, there are several places in the interim plans, de-j scribed below, where provisions are made to assimilate Suffolk County persuanel into the emergency response.
(footnote continued) i in a way that does no damage to LILCO's claim that the hypothesis of a utility-only re-sponse is unrealistic. The Appellate Division's reasoning went as follows:
The declaration sought will have an immediate and practical l
effect on the parties in view of the pendency of the pro-ceedings before the NRC and the necessity for the NRC's passing upon the proposed plan....
Cuomo v. LILCO, _ A.D.2d _ (2d Dept. Feb. 9,1987), slip op. at 2. Thus the court ed not deny that the situation postulated is unrealistic but rather held that the resolution of the hypothetical question has a real effect on the NRC proceeding.
v i '
i County personnel are not relled on, however, to demonstrate that the interim plans can be implemented.
LILCO's Memorandum of Service, May 26,1983, at 10 (footnote omitted). Indeed, LILCO urged the Board to consider a plan designed to be implemented by Suffolk Coun-ty personnel as the " principal" offsite plan. I_d. at 2-6. Also, LILCO submitted at the same time a plan specifically designed to allow the State to take a command-and-control role. The realism argument was also stated clearly on January 26,1984, in the "LILCO Proposal for Resolving the ' Legal Authority' Issues (Contentions 1-10)," at 3.
LILCO has always maintained what any realistic person must recognize - that State and County officials would do their best in a real emergency, and that a utility emer-gency plan must take this into account. But it has taken a long time to have this fact memorialized in CLI-86-13.
Also, the Intervenors claim that LILCO has changed its " realism" argument. The Intervenors are incorrect. LILCO perceives no difference between the present "real-Ism" argument and the one recited in LILCO's first motion for summary disposition, or for that matter in the earlier documents cited above. See LILCO's Motion for Summary Disposition of Contentions 1-10 (the " Legal Authority" Issues), August 6,1984, at 42-47.
For example, in the discussion of traffic control, LILCO said as follows:
... (P]ublic officials have stated that the State and County would respond to an emergency at Shoreham. That response is bound to include either (1) providing police to facilitate the movement of traffic during an evacuation or (2) conferring authority on LERO to do so. The LILCO Transition Plan pro-vides for the incorporation by its traffic guides of any police assistance offered.... Traffic guides are trained to explain to the police the situation existing at the time of an emergen-cy, to turn over posts for facilitating traffic flow to the po-lice, and to remain if necessary as assistants in coordinating the evacuation effort.
LILCO's Motion for Summary Disposition of Contentions 1-10 (the " Legal Authority"Is-sues), August 41984 at 54 (footnote and citations omitted). The footnote explakethat irwny mine vnetner ur m.mnn.h m
"if the County and State participate in a response, as they have said they would, att
c -,
o n.
a actions mandated by government officials would be, by definition, taken pursuant to governmental authority, including the actions of traffic guides." Ld. at 56 n.22.
Also, on pages 72-73 of their Answer the Intervenors claim that Contention 7 raises the issue of legal authority to handle protective actions in Connecticut. Con-necticut is clearly not encompassed by Contentions 1-10. For one thing, in Connecticut the state government has committed to take actions to protect its citizens. LBP-85-12, 21 NRC at 887 (1985). Moreover, LILCO believes that the Intervenors did not raise the Connecticut issue in their earlier responses to LILCO's summary disposition motions, beginning with their Opposition of September 24,1984 to LILCO's first motion for sum-mary disposition. Thus, this argument is simply another attempt to argue that Con-necticut "has submitted no Plan for this Board's review," an issue that the Intervenors first raised in their proposed findings af ter the hearings. Contention 24.R, the conten-tion about Connecticut, raised the issue whether there was a letter of agreement with Connecticut; this was litigated and decided by the Board. LBP-85-12,21 NRC 644,885-86 (1985). The Board's decision on this point was appealed to the Appeal Board and af-firmed in ALAB-832, and it has now passed the time for Commission review.
IV. Request for Referral In light of the Intervenors' failure to come to grips with the facts, LILCO re-quests that the Board grant the motion for summary disposition. The Intervenors' An-swer shows that there is no litigable issue; it shows that there is no purpose in hearing i
evidence, since the dispute boils down to the Intervenors' disagreement with CLI-86-13, l
their disagreement with the Commission's emergency planning regulations, and their refusal to say what they would do in an emergency.
Whatever the Board rules, LILCO asks that it refer the ruling directly to the Commlaston pursuant to 10 CFR S 2.730(f)..This authority is delegated to the Appeal j
..v.,...no,.oru mm+ o m mantn
,i Board pursuant to 10 CFR S 2.785(t$(1), busithe<puuulh811tyiof 8teterral direct to the Commission, bypassing the Appeal Board, was raised in the San Onofre case:
1 l
m,-
n
_m In conclusion, both the Applicants and the Staff seek referral from us direct to the Commission, by-passing the Ap-peal Board. At least prior to the Commission's recent State-ment of Policy on Conduct of Licensing Proceedings,it has al-ways been the practice to refer and certify issues from Licensing Boards to the Appeal Board, not to the Commission.
In the Policy Statement, however, the Commission did speak of referring or certifying to the Appeal Board "or the Com-mission."
We are uncertain whether this statement represents a deliberate departure from prior practice and,if so, what stan-dards we should follow in deciding where to refer a ruling.
Moreover, we are reluctant to by pass our immediate re-viewing body in the absence of a strong reason for doing so.
Accordingly, we are denying this aspect of the Applicants' re-quest and referring our ruling to the Appeal Board. However, since this is an issue raised on the Board's own motion, we are, as instructed, serving a copy of this Order on the General Counsel and the Commissioners.
The Commission can, of course, take up this matter at any time on its own motion.
Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3),
LDP-81-36,14 NRC 691,701-02 (1981)(footnotes omitted).
In the instant case LILCO believes there are " strong reasons" for referring the realism issue to the Commission. The issue here is far more of law and policy than of fact, since the Intervenors have contested almost none of the facts stated by LILCO.
Moreover, deciding the issue requires interpreting what the Commission meat.t in CLI-86-13. The Commission itself will ultimately have to decide this issue and is in the best position to do so. This proceeding, and the legal authority issues, have now been in liti-gation for years, and a prompt resolution is desirable; referral direct to the Commission
]
will help accomplish that.
i l
j
- /
mu u m v..
. o61 m me i. <.., mosm eu
.,9 u00 + o.
w J.*
?'t p
%n, e rs
a.
w w
m
..-...-.w.
Respectfully submitted, o C"%l W. Taylor Reveley, III Donald P. Irwin James N. Christman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: May 22,1987 i
)
. ~
8\\I
- i
g y 4+g I
58 hkO g
9
' 'flO r!!O!!C', lif etiltl!n(J
- ,041R s
.W i or iv rMitleti' i 6 6 t itt
=
LILCO, M:y 22,1987 DOCKE H f Nmr 87 27 Pl2:00 CERTIFICATE OF SERVICE 0FF U 00CKdit.,, a l} ~
NC" In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S REPLY TO INTERVENORS' ANSWER TO MOTION FOR
SUMMARY
DISPOSITION OF THE " LEGAL AUTIIORITY" ISSUES AND MOTION FOR REFERRAL TO THE COMMISSION and MOTION FOR LEAVE TO FILE REPLY ON " REALISM" were served this date upon the following by hand or telecopier as indicated by one asterisk, by Federal Express as indicated by two asterisks, or by first-class mail, postage prepaid.
Morton B. Margulies, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers, Rm. 407 4350 East-West Hwy.
Atomic Safety and Licensing Bethesda, MD 20814 Board Panel U.S. Nuclear Regulatory Commission Dr. Jerry R. Kline
- Washington, D.C. 20555 Atomic Safety and Licensing Board Richard G. Bachmann, Esq.
- U.S. Nuclear Regulatory Commission George E. Johnson, Esq.
East-West Towers, Rm. 427 U.S. Nuclear Regulatory Commission 4350 East-West Hwy.
7735 Old Georgetown Road Bethesda, MD 20814 (to mailroom)
Bethesda, MD 20814 Mr. Frederick J. Shon
- Atomic Safety and Licensing Herbert H. Brown, Esq.
- Board Lawrence Coe Lanpher, Esq.
U.S. Nuclear Regulatory Commission Karla J. Letsche, Esq.
East-West Towers, Rm. 430 Kirkpatrick & Lockhart 4350 East-West Hwy.
South Lobby - 9th Floor Bethesda, MD 20814 1800 M Street, N.W.
Washington, D.C. 20036-5891 Secretary of the Commission Attention Decketing and Service Fabian G. Palomino, Esq.
- Section Richard J. Zahnleuter, Esq.
U.S. Nuclear Regulatory Commission Special Counsel to the Governor 1717 H Street, N.W.
Executive Chamber Washington, D.C. 20555 Room 229 State Capitol Albany, New York 12224
3 g.,
Mary Gundrum, Esq.
Jonathan D. Feinberg, Esq.
Assistant Attorney General New York State Department of 120 Broadway Public Service, Staff Counsel Third Floor, Room 3-116 Three Rockefeller Plaza New York, New York 10271 Albany, New York 12223 Spence W. Perry, Esq.
- Ms. Nora Bredes William R. Cumming, Esq.
Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 Martin Bradley Ashare, Esq. **
Stephen B. Latham, Esq. **
Eugene R. Kelly, Esq.
Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 New York, New York 10278 b.
James N. Chrisfman Hunton & Williams 707 East Main Street i
P.O. Box 1535 Richmond, Virginia 23212 DATED: May 22,1987 l
l