ML20215K572

Answers Opposing Suffolk County,State of Ny & Town of Southampton 861009 Petition for Review of ALAB-847 Re Conflict of Interest Issue (Contention 11) & Reconsideration of CLI-86-13.Certificate of Svc Encl

ML20215K572
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/24/1986
From:	Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	NRC COMMISSION (OCM)
References
CON-#486-1269 ALAB-847, CLI-86-13, OL-3, NUDOCS 8610280216
Download: ML20215K572 (11)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

)

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

) (Emergency Planning Proceeding)

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S ANSWER TO SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON PETITION FOR REVIEW OF ALAB-847 On October 9,1986, the Intervenors in this case petitioned the Commission to review ALAB-847, in which the Appeal Board reversed the Licensing Board's findings on-Contention 11 (Conflict of Interest) and Contention 92 (State Plan). See Suffolk Coun-ty, State of New York, and Town of Southampton Petition for Review of ALAB-847 (Oct. 9,1986)(hereinaf ter " Petition"). For the reasons stated below, LILCO opposes the Petition. The Petition does not meet either of the relevant standards, namely 10 CFR S 2.786(b)(1), which says that such a petition must be grounded on "an important ques-tion of fact, law, or policy," or 10 C.F.R. S 2.786(b)(4)(1), which provides that a petition

. for review of matters of law or policy will not ordinarily be granted unless it appears, for example, that the case involves "an important procedural issue, or otherwise raises important questions of public policy . . . ."

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I. No Basis Is Shown For Commission Review of the Conflict-Of-Interest Issue (Contention 11) i A. The Appeal Board Did Not Misconstrue the ASLB Finding Intervenors claim that the Appeal Board made two "fundamenta1 errors" in deciding the " conflict of interest" issue. The first is that the Appeal Board "fundamen-tally misconstrue [d)" the Licensing Board decision and tried to convert the Licensing Board's f actual decision into an issue of law. Intervenors argue that when "the Appeal Board fundamentally misconstrues a Licensing Board decision, an important issue of f air procedure, law, and policy is presented" under 10 CFR 52.786(b)(4)(1). Petition at 4.

This is incorrect. It is about the same as saying that any claim of error at all is reviewable, and that is clearly not the standard; only significant and important mat-I ters are ordinarily reviewed. Moreover, the Appeal Board did not err at all. The Inter-venors can claim all they want that the Licensing Board decided Contention 11 on fac-tual grounds, but the fact is that the Licensing Board's decision was grounded on a legal / policy judgment, namely that NRC regulations require " independence." See LBP-85-12,21 NRC 644, 680-82 (1985). Once that fundamental decision was made, the Licensing Board simply discounted all" factual" material (such as the testimony of the 1

NRC Staff) that conflicted with its legal / policy decision. I

Even to the limited extent the Licensing Board's decision was other than a legal / policy decision, it was still not a decision about "f acts" but rather an unjustified inference from one basic fact that no one disputes. The only real" fact" that the Inter-venors have established is that LILCO employees, like everyone else, are affected by their background, race, sex, creed, and a host of other factors, including where they work.O Based on this f act, the Intervenors were able to find a number of witnesses 1

1/ The Intervenors misstate the Licensing Board's finding on page 2 of the Petition when they say that the Board "found that placing high-level LILCO management em-(footnote continued)

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! with doctorates, but no experience in emergency planning, willing to leap to the con-i

! elusion that all utility employees should be permanently disqualified from making deci-I sions about the public health and safety. This opinion was no doubt sincerely held; but it was still opinion, and a long way removed from the unremarkable fact on which it j was based.

t The fundamental" fact" relative to Contention 111s that, as the NRC Staff i

j testified, decisions about protective actions in an emergency are no different in princi-I

! pal from the type of decision that licensees are expected to make every dav in running their nuclear plants. See Schwartz, ff. Tr.15,143, at 2. And the NRC has always relied

) on licensees to make the latter kinds of decisions. Given this " fact," the Licensing Board's decision was inconsistent with the whole NRC regulatory scheme.

1 B. The second error claimed by the Intervenors is simply

a request for reconsideration of CLI-86-13 The Intervenors claim that the Appeal Board's "second fundamental j error" on conflict of interest was in relying on CLI-86-13, and that CLI-86-13 is errone-l ous in ways "too numerous to detail." Petition at 4,5. This is nothing less than a peti-i tion for reconsideration of CLI-86-13. As such, it is contrary to the Commission's regu--

! lation,10 CFR 52.786(b)(7), which reads as follows:

I (continued from previous page) i ployees in LERO command and control positions would affeet those employees' ability

! to make protective action recommendations and related decisions designed to protect i the public." Petition at 2. This sounds as though giving LILCO people jobs in LERO .

1 somehow alters their thinking. In fact, the Intervenors tried to prove something else -  ;

i entirely: that utility employees are inherently unable to make sound health-and-safety  ;

j decisions because they have a built-in, unconscious bias developed from years of work- '

j ing for a private company. See Tr. 10,921,10,929 (Saegert), 10,927,10,964 (Lipsky),

10,928,10,967 (Cole).

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, ~. (7) Petitions for reconsideration of Commission de-cisions upon review, or granting or denying review in whole or in part, will not be entertained.

10 CFR 52.786(b)(7) (1986). The Intervenors should not be allowed to do, in the guise of a petition for review of an Appeal Board decision, what they are expressly forbidden to do by regulation.

On pages 5-9 of their Petition Intervenors argue the merits of CLI-86-13. They do not take issue with the fundamental finding of CLI-86 that is, the finding that the State and County would do their best to protect the public in an emergency. No one has evet denied that this is true, and the Intervenors do not deny it now.

Instead, they take issue with the corollary of that finding, which is that the State and County would use the LILCO plan as a source of "information and op-tions." CLI-86-13, slip op. at 14,16. They claim first that they were not allowed an opportunity to present evidence on what they would do in a real emergency. But they have had countless opportunities, during three years of litigation, to say what they would do, and they have adamantly refused to; indeed, they have attempted to win their case by the tactic of preventing any evidence about what they would do from getting into the record.2/ Having taken this gamble, they cannot be heard to complain now that it has failed.

2/ Besides declining to present testimony of their own, the Intervenors have ob-jected whenever LILCO attempted to testify about what the County or State could be expected to do in an emergency. See, e.g., Amended Suffolk County Motion to Strike 4

Portions of LILCO Testimony on Contentions 25,23 and 65, at 7-8 (Nov. 29,1983); Tr.

i 1973,2064. They chose witnesses who are not the ones principally responsible for emergency planning in the County and State. See, e&, Tr. 9784-86 (Harris, Mayer). ,

And they in effect declined to answer when asked by the Licensing Board to address the question whether an unplanned County or State response would result in confusion. See Suffolk County and State of New York Response to ASLB Memorandum and Order Dated October 22,1984, at 88-90 (Nov.19,1984).

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. They also argue that there is "no evidence"in the record to support the finding that the State and County would use the LILCO Plan. They argue that indeed the statements "which were before the Commission on July 24,1986" show the con-trary. Petition at 7. These statements, on which they wish the Commission to rely, are unsworn, extra-record statements by the Governor on June 30,1986, and by the County Executive on June 23,1986, a few days before the Commission's decision. The Interve-nors here make a striking reversal of position. When LILCO argued that the State and l

County would respond in an emergency, based on a statement of Governor Cuomo that was in fact entered into the record as evidence, the Intervenors argued that it was not

" evidence" at all. Now, taking the opposite position, they argue that the Commission should rely on statements that clearly are not in the evidentiary record and were not subject to cross-examination.

This is the fundamental weakness in the Intervenors' argument about the statements of the Governor and the County Executive: they were not subject to cross-examination, and, as the Commission has said, they cannot be taken at face value. CLI-86-13, slip op. at 11 n.9. On their face they seem to say that the Interve-nors would not use or rely upon "the LILCO plan" no matter how much that might hurt the public. This is of course impossible to believe. If a citizen's house were on fire and LILCO were standing by with a fire hose, would the Governor or County Executive re-fuse to use it simply because it belonged to LILCO? We can ask the same sorts 01 ques-tions about the LILCO Plan. Would the Governor or County Executive refuse to consid-er either sheltering or evacuation because those are the " options" offered by the LILCO plan? Would the Governor or County Executive refuse to use the EPA Protective Ac-tion Guidelines simply because they are incorporated into the LILCO plan? Would the State or County forbid LILCO to send out its buses simply because LILCO had con-tracted for the buses? Would the State or County ignore radiation measurements from

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the Department of Energy and instead make wild guesses about dose projections? These I

questions show why the Commission should not rely on extra-record statements by ad-vocates in a case before it.

1 Another reason that the Commission cannot rely on these extra-record statements is that they are contradicted by other statements made earlier in this case by Suffolk County. During the discovery phase of this proceeding LILCO asked, among other things, whether Suffolk County or its officials would "take action to prohibit I

county employees from responding in an emergency" and whether the County would '

" provide LILCO with a permit to conduct any of the activities necessary to execute the a

emergency plan which the County, in its contentions, has classified as illegal?" In re-sponse to both of these questions the County said that it could not decide in advance what it might do in an emergency:

i The County cannot describe what action (s) might be taken by a government when and if speculative future events take place. If events take place in the future, the County government will evaluate the events and take the ac-tion (s) which are agreed to be appropriate in light of the

, events which in fact occur. We, of course, do not know what actions might be taken until those events occur.

. . . The County, as a party in this proceeding, cannot possibly predict what action (s)its Legislature or executive agencies might take if LILCO asked for per-mits, etc.

Suffolk County's Responses to LILCO's Informal Discovery Requests of June 29,1983

and July 6,1983 (August 3,1983), at 18-19. This is all that " realism" requires

that the State and County " evaluate the events and take the action (s) which are agreed to be ap-l propriate in light of the events." And that is very different from mindlessly refusing to use the LILCO Plan no matter what it contains.

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4 II. The Appeal Board's Decision on the " State Plan" Issue (Contention 92) Presents No Error With Respect to an Important Question of Fact Law, or Policy Contention 92 alleges that the absence of a State Plan for Shoreham prevents LILCO from complying with NRC regulations. The Intervenors claim that the Appeal Board made two " fundamental errors" in its treatment of this issue.

A. Reliance on CLI-86-13 Is Not a Proper Ground For Commission Review First, the Intervenors again argue that the Appeal Board erred when it relied on CLI-86-13. For the same reasons recited above, this is not a proper basis for seeking review under S 2.786, and indeed it is contrary to 10 CFR S 2.786(b)(7), which prohibits petitions for reconsideration of Commission decisions.

B. The Intervenors Allege Only a Run-of-the-Mill Error Second, the Intervenors claim that "the Appeal Board ignored the cru-cial finding of the Licensing Board that LILCO lacks the capability of adjusting in an 1

emergency in order to perform actions beyond the four so-called ' State plan functions' described in LILCO's Plan." Petition at 10. Again, the Intervenors are arguing simply that the Appeal Board was wrong, without attempting to show that the alleged error is with respect to "an important question of fact, law, or policy." The question of wheth-er the absence of state and local government participation prevents compliance with NRC regulations might well be an important issue of public policy, but that issue was not decided by ALAB-847. It was decided by the decision on the Motion to Terminate, CLI-83-13,17 NRC 741 (1983), and by CLI-86-13, and the Intervenors cannot now ask for review of those decisions.

The Intervenors claim (Petition at 10-11) that the crux of the State plan issue is that to meet NRC regulations LILCO must show the ability to perform certain

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• unspecified functions that are beyond what even the State is ordinarily expected to do.

The short answer to this is that the Intervenors had ample opportunity to make a record on this issue but did not. They of all people ought to know the role of the State in an emergency. Yet they presented no evidence on Contention 92 and, even more re-markable, hardly cross-examined LILCO's witnesses at all. See Tr. 13,900-05.

III. Conclusion For the above reasons, the Commission should reject the October 9 Petition of the Intervenors and decline to review ALAB-847.

Respectfully submitted, onald P. Irwin James N. Christ n Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 24,1986

a LILCO, October 24,1986 s

CERTIFICATE OF SERVICE 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 Answer to Suffolk County, State of New York, and Town of Southampton Petition for Review of ALAB-847 were served this date upon the following by first-class mail, postage prepaid.

1 Lando W. Zech, Jr., Chairman U.S. Nuclear Regulatory Commission 1717 H Street, N.W. Alan S. Rosenthal, Esq., Chairman Washington, DC 20555 Atomic Safety and Licensing Appeal Board Commissioner Thomas M. Roberts c U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Fif th Floor (North Tower) 1717 H Street, N.W. East-West Towers Washington, DC 20555 4350 East-West Highway Bethesda, MD 20814 Commissioner James K. Asselstine U.S. Nuclear Regulatory Commission Gary J. Edles, Esq.

1717 H Street, N.W. Atomic Safety and Licensing Washington, DC 20555 Appeal Board U.S. Nuclear Regulatory Commission Commissioner Frederick M. Bernthal Fif th Floor (North Tower)

U.S. Nuclear Regulatory Commission East-West Towers  ;

1717 H Street, N.W. 4350 East-West Highway .

I Washington, DC 20555 Bethesda, MD 20814 Commissioner Kenneth M. Carr Dr. Howard A. Wilber )

U.S. Nuclear Regulatory Commission Atomic Safety and Licensing )

1717 H Street, N.W. Appeal Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Fitth Floor (North Tower) j William C. Parler, Esq. East-West Towers i General Counsel 4350 East-West Highway l U.S. Nuclear Regulatory Commission Bethesda, MD 20814 1717 H Street, N.W.

Washington, DC 20555

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John H. Frye, III, Chairman Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel East-West Towers, Rm. 407 U.S. Nuclear Regulatory Commission 4350 East-West Hwy. Washington, DC 20555 Bethesda, MD 20814 Bernard M. Bordenick, Esq.

Dr. Oscar H. Paris Oreste Russ Pirfo, Esq.

Atomic Safety and Licensing Edwin J. Reis, Esq.

Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 7735 Old Georgetown Road East-West Towers, Rm. 427 (to mallroom) 4350 East-West Hwy. Bethesda, MD 20814 Bethesda, MD 20814 Lawrence Coe Lanpher, Esq.

Mr. Frederick J. Shon Karla J. Letsche, Esq.

Atomic Safety and Licensing Kirkpatrick & Lockhart Board Eighth Floor U.S. Nuclear Regulatory Commission 1900 M Street, N.W.

East-West Towers, Rm. 430 Washington, DC 20036 4350 East-West Hwy.

Bethesda, MD 20814 Fabian G. Palomino, Esq.

Special Counsel to the Governor Morton B. Margulies, Chairman Executive Chamber Atomic Safety and Licensing Room 229 Board State Capitol U.S. Nuclear Regulatory Commission Albany, New York 12224 East-West Towers, Rm. 427 4350 East-West Hwy. Mary Gundrum, Esq.

Bethesda, MD 20814 Assistant Attorney General 2 World Trade Center o Dr. Jerry R. Kline Room 4614 Atomic Safety and Licensing New York, New York 10047 Board U.S. Nuclear Regulatory Commission Spence W. Perry, Esq.

East-West Towers, Rm. 430 William E. Cumming, Esq.

4350 East-West Hwy. Federal Emergency Management Bethesda, MD 20814 Agency 5d3 C Street, S.W., Room 840 Secretary of the Commission Washington, DC 20472 Attention Docketing and Service Section Mr. Philip McIntire U.S. Nuclear Regulatory Commission Federal Emergency Management 1717 H Street, N.W. Agency Washington, DC 20555 26 Federal Plaza New York, New York 10278 Atomic Safety and Licensing Appeal Board Panel Mr. Jay Dunkleberger U.S. Nuclear Regulatory Commission New York State Energy Office Washington, DC 20555 Agency Building 2 Empire State Plaza Albany, New York 12223

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Gerald C. Crotty, Esq.

Counsel to the Governor Stephen B. Latham, Esq. Executive Chamber Twomey, Latham & Shea State Capitol 33 West Second Street Albany, New York 12224 P.O. Box 298 Riverhead, New York 11901 Martin Bradley Ashare, Esq.

Eugeno R. Kelly, Esq.

Jonathan D. Feinberg, Esq. Suffolk County Attorney New York State Department of H. Lee Dennison Building Public Service, Staff Counsel -Veterans Memorial Highway Three Rockefeller Plaza Hauppauge, New York 11787 Albany, New York 12223 Dr. Monroe Schneider Ms. Nora Bredes North Shore Committee Executive Coordinator P.O. Box 231 Shoreham Opponents' Coalition Wading River, NY 11792 195 East Main Street Smithtown, New York 11787 James N. Chri stman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 i

DATED: October 24,1986 i

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