ML20235T445
| ML20235T445 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/05/1987 |
| From: | Latham S, Mark Miller, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20235T449 | List: |
| References | |
| CON-#487-4563 OL-3, NUDOCS 8710130090 | |
| Download: ML20235T445 (29) | |
Text
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DOLKETED i U5NRC October 5, 1987 87 DCT -7 P12:07 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION . . .
gTW Us -5E.L Before the Atomic Safety and Licensina B6 h hhkH,
\
)
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 MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION 92 (NO NEW YORK STATE EMERGENCY PLAN)
Suffolk County, the State of New York and the Town of I Southampton (hereafter, the " Governments") hereby respond to and answer, pursuant to 10 CFR S2.749, LILCO's Motion for Summary Disposition of Contention 92, dated September 11, 1987 (hereafter, "LILCO's Motion"). Like LILCO, the Governments do not believe that affidavits are necessary to deciding LILCO's Motion; the issues can be decided based upon the law of the case and the existing evidentiary record.1/ LILCO's Motion, however, 1/ Nonetheless, the Governments have attached a copy of a May 11, 1987 affidavit of James D. Papile to demonstrate further that LILCO's Motion must be rejected. This affidavit, although originally provided to the Board in connection with the Governments' Answer to LILCO's Second Renewed Motion for Summary Disposition of the Legal Authority Issues (Contentions 1-10),
dated May 11, 1987, establishes that the State of New York has no emergency plan for Shoreham and that, in the absence of such a plan, State personnel could not respond in an integrated, (footnote continued) kDjo1 0o90 871005 0 DOCK osooogga POR
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4 was filed prior to this Board's issuance of LBP-87-26, its Memorandum-and Order (Ruling on Appl.icant's Motions of March 20, 1987 for Summary Disposition of the Legal Authority Issues and of May 22, 1987 for Leave to File a Reply and Interpreting Rulings Made by the Commission in CLI-86-13 Involving the Remand of the Realism Issue and Its Effect on the Legal Authority Question),
dated September 17, 1987 (hereafter, sometimes " September 17 Order"). That Order makes clear that LILCO's Motion is utterly lacking in merit and, as a matter of law, must be denied by this Board.2/
(footnote continued from previous page) coordinated or effective manner to a Shoreham emergency, assuming some sort of "best effort" response by the State to such an emergency. It is therefore of direct relevance to the issues raised by Contention 92 which LILCO seeks to have summarily resolved in its favor. Nevertheless, if Albany, New York, had not been hit over the weekend with heavy snows, which resulted in downed power lines and power supplies not restored by the time this Answer had to be filed, a more recent affidavit from Mr. Papile would have been attached. That affidavit most likely would have made at least two points arguably not addressed by the May 11 Papile Affidavit: that consistent with New York State policy, State personnel would not utilize LILCO's Plan or rely upon LILCO personnel in the event of a radiological emergency at Shoreham; and that, in the absence of a State plan for Shoreham, it is not possible to state (as does LILCO) that the only functions that would need to be performed by State personnel at Shoreham (assuming a "best effort" response to a radiological emergency) would be those four functions identified by LILCO at page 2 of its summary disposition motion on Contention 92.
Notwithstanding the fact that these two matters are not addressed in the attached Papile Affidavit, ,they are fully discussed in this Answer and in the attached Statement of Disputed Facts.
2/ In the Governments' view, this Board's September 17 Order so obviously requires denial of LILCO's Motion that the Motion should have been withdrawn by LILCO. In this way, the time and resources of this Board and the other parties to this proceeding would not have been needlessly wasted. LILCO, however, refused to withdraw its Motion when requested to do so by counsel for Suffolk County, making this Answer necessary. It is the opinion of the Governments that, although many reasons exist for denying LILCO's Motion, primary among such reasons is this Board's September 17 Order, which interprets the Commission's decision in (footnote continued)
a e
I. Backaround Contention 92, the text of which is set forth in LILCO's Motion (at page 2), alleges that there is no New York State emergency plan for Shoreham and that LILCO's Plan fails to provide for coordination of LILCO's emergency response with that of the State of New York (assuming that such a response would occur). The first point was conceded by LILCO. Egg Cordaro and Weismantle, ff. Tr. 13,899, at 4. It is also stated in the attached affidavit of James D. Papile. Thus, it was the second issue raised by the contention -- that is, the contention's claim that, in the absence of a State plan, there can be no compliance with 10 CFR SS50.47(a)(2), 50.47(b), or NUREG 0654 SSI.E, I.F, I.H or I.I, each of which deals with the need for an integrated and coordinated response, that was contested at the evidentiary hearing and in the post-trial briefs filed by the parties.3/
Despite the unambiguous words of Contention 92 which exorensly raise the coordination issue, LILCO's Motion does not focur,upon this issue. Indeed, LILCO would have this Board believe that the failure of the LILCO Plan to provide for coordination with the State " plays,no role in the resolution of (footnote continued from previous page)
CLI-86-13 in a way directly contrary to LILCO's arguments and the relief sought on Contention 92 in LILCO's Motion. In these circumstances, the Governments submit it would be sufficient for the Board simply to deny summarily LILCO's Motion on the basis of LBP-87-26.
3/ Egg, e.q,, Suffolk County and State of New York Proposed Findings of Fact and Conclusions of Law on Offsite Emergency Planning, Oct. 26, 1984, at 517-19.
Contention 92 . . . ." LILCO's Motion at 8. Rather, in LILCO's view, the only issue for this Board's determination concerns the adequacy of LILCO's Plan to fulfill four functions that otherwise would be performed by the State in the event of a radiological emergency: dose projection based on release data communicated to State officials; ingestion pathway sampling in the 50-mile EPZ; interdiction of contaminated foods; and issuance of protective action recommendations via the radio and local emergency broadcast network. Id. at 2.
LILCO's view is misplaced, and its attempt to focus the attention of this Board away from the Plan's failure to provide for an integrated and coordinated response between LILCO's emergency response and that of the State (assuming such a response would occur) should be summarily rejected. Contention 92 rests upon specific regulatory requirements which define an adequate offsite emergency response plan for a nuclear power plant as a plan which includes emergency preparedness on a State level, and which integrates and coordinates the State's emergency response with all other portions of the offsite response to a radiological emergency. The evidentiary record in this proceeding is completely void of any demonstrated preparedness on the part of the State of New York, as evidenced by the absence of a State plan for Shoreham. Thus, there can be no finding that there will be an integrated or coordinated response, or that the response to an emergency would or could be adequate, or even,
_4_
v assuming for the sake of argument (as does Contention 92) a State response were forthcoming, that the response would be consistent with LILCO's Plan.
Furthermore, the stated willingness of one party (here, LILCO) to " coordinate" with another entity sometime in the future, when countered by the obvious unwillingness of the other entity (New York State) to coordinate, provides no reliable indication, and certainly no reasonable assurance, that such coordination would or could actually occur in the future. It also provides no assurance that the result of actions taken following such hypothetical coordination would be consistent with the activities set forth in LILCO's Plan or would provide adequate protection to the public. The evidentiary record, as it now stands, contains no evidence on which a finding could be based concerning what a " coordinated" response would consist of; indeed, there is no basis in the evidentiary record upon which to find that a coordinated response would even be possible, much less actually forthcoming. Egg, e.a., Papile Affidavit, 51 2, 3.
Moreover, another essential background fact -- and one which is not subject to any di3pute but which LILCO ignores -- is that LILCO cannot lawfully perform the four functions which the Board in the PID apparently found LILCO theoretically capable of performing. In Cuomo v. LILCQ, the New York State Supreme Court and the Appellate Division thereof ruled that the functions to be performed by LILCO under LILCO's Plan constitute illegal usurpation of the police power. Egg Decision of Feb. 20, 1985,
,g. .-
- 1
/
4 Consol. Indhx No. 84-4615, aff'd, 511 N.Y.S.2d 867 (App. Div.
1987), acoeal oendina. Thus, consistent with this Board's September l'7 Order (at page 25), LILCO cannot seek to prevail on Conte'ntion 92 based upon its asserted capability to do that which ,
s it*:ahnot lawfully be permitted to do. Accordingly, that portion of the PID upon which LILCO relies relating to LILCO's asselted s
capability co perform specified functions is irrelevant to Contention 92. And those portions of LILCO's Motion which rely upon that purport /td LILCO capability are likewise irrelevant to e tihis matter.41' '
r ?'t r
For these reasons, and others, first the Commission in CLI-86-13 and, more recently, this Board in its Septemblcr 17 Order have refused to assume, as LILCO would have them do, that an assumed "best efforts" Government response to an emergency at I,
/
j Shoreham would necessarily be adequate to protect the public ,
health and safety. The decisions rendered by the Commission and this Board have recognized that there can be no reliance on an illegal LILCO response, they have also recognized that there are ,
open questions as to the effectiveness of a Government response, A/ Accompanying LILCO s Motion is a " Statement of the Material Facts as to Which LILCO Contends There Is No Genuine Issue to be Heard on Contention 92." Among the so-called material " facts" allegedly not in dispute is " Fact" No. 4, wWich claims, in par:t, that LILCO will perform the four State functions (identified at page 2 of LILCO's Motion) in the absence of State participation.
The Cuomo v. LILCO decision, as well as this Board's September 17 Order, make clear, however, that LILCO's statement is wrong:
LILCO cannot perform those functions; as a matter of law, LILCO is barred from performing those functions. Similarly, the C,9?m2
- v. LILCO decision makes clear that L7LCO'n " Fact" No. 5, regarding LILCO's alleged capability to perform State functions, is not material at all, since the NRC could not possibly approve a LILCO plan to perform illegal acts. Egg September 17 Order at 25.
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and that to answer such factual questions, more information and tl[
additional evidence are needed concerning the shortcomings of the LILCO Plin in terms of possible lesser /.ose savings and (,
protective actions foreclosed, assuming a "best efforts" .
Government response using the LILCO Plan as the source for basic '/
9h
- emergency planning information and options. ?
i o'
J' l LILCO, of course, was not aware of this Board's September 17. N Order at the time it moved for summary disposition of Contention 92.1/ LILCO, however, was fully aware of the Commission's 4 decision in CLI-86-13. Nonetheless, LILCO's Motion ignores the a
Commission's clear pronouncements in that decision regarding the- / ,
,(
need for more information and further evidence concerning what an j
ad hoc "best efforts" Government response would be and whether it L would be adequate. The question presented by Contention 92 is l
whether a New York State plan exists to deal with a Shoreham accident. LILCO failed to meet its burden of proof on this contention: it conceded that a New York State plan for Shoreham .
does not exist; and there is nothing in the evidentiary record to a q
evidence the willingness or capability of New York State to respond to an emergency at Shoreham at all, much less in a manner '
that would provide adequate protection or would be consistent, y coordinated, or integrated with the proposals made by LILCO's Plan. To the contrary, the Director of the New York State [
1/ LILCO, however, became aware of the September 17 Order o shortly after filing its Motion and could have withdrawn the Motion and then refiled it (if it felt there was merit) in a revised format which could have taken into account LBP-87-26.
LILCO refused to do so. Egg note 2 above. LILCO has thus forfeited any opportunity to address LBP-87-26 in the context of the pending summary disposition motion.
_ _ _ _ _ _ _ _ _ i
/.
}
4
. 't; Radiological Emergency Preparedness Group ("REPG") states that New York 3 tate cannot provide an effective or coordinated response. Egg Papile Affidavit, 1 3. Accordingly, Contention 92 .
I' cannot/be resolved in LILCO's favor based on the present evidentiary record and, for the reasons already discussed and further explained below, LILCO's Motion must be denied.
'l II. Argument There is no need and we will not set forth here Contention 92's procedural, background. LILCO's Motion does so (at pages 2-
- 6) and, although the " facts" regarding the contention's history i
are, as presented by LILCO, somewhat one-sided and misleading, !
most of the ea'lient popnts come through: this Board ruled in favor of the Governments on Contention 92 {21 NRC 644, at 882-85); the Appeal Board, in ALAD-818, affirmed this Board's finding in the PID that LILCO lacked the legal authority to implement its
, Plan (22 KRC 651); the Commission, in undertaking review of ALAB-818, reversed the Appeal Board and remanded to this Board certain issues requiring fur'ener evidentiary hearings (CLI-86-13, 24 NRC 22, at 24, 31-31); and the Appeal Board, upon direction by.
the Commission to reconsider its defetral of LILCO's appeal on Contention 92 in light of CLI-86-23, has once again brought Contention 92 before this Board (ALAB-847, 24 NRC 412, at 432).
( /
, .g-
Based upon the language of CLI-86-13 and ALAB-847 that is quoted by LILCO under the guise of pertinent " background" information, LILCO concludes that Contention 92 must be resolved in its favor. LILCO's Motion at 5. LILCO is plainly wrong.
As noted by LILCO (at page 2), this Board ruled in favor of the Governments on Contention 92. 21 NRC at 882-85. LILCO's Motion fails to point out, however, that in doing so, the Board determined that there was insufficient evidence in the record to conclude that New York State would participate in an actual emergency at Shoreham as contemplated by the NRC's regulations and guidance. In reach'79 this finding, the Board reasoned that even if the State were to respond to an emergency at Shoreham, there was no " clear commitment in the record that it would respond in a meaningful way." Id. at 883. The Board further reasoned as follows:
NRC's regulations and guidance are founded on a fundamental assumption that there will be an integrated approach to emergency planning among State and local governments and utilities.
Further, our review of LILCO's Plan indicates that protection of public health and safety in the Shoreham EPZ would require the best efforts of response agencies to be successful. The Board need not specify a long list of contingent possibilities as to how future accidents might play out to find that absence of commitment, resources, and decisionmaking capability and authority of the State together with similar absences on the part of the County constitute a serious deficiency in the Plan.
Id. at 885.
. l i
Although the Appeal Board in ALAB-847 reversed these findings,5/ the issues were not resolved in LILCO's favor; rather, they were remanded for further proceedings. Thus, it does not follow, as LILCO would have the Board conclude, that Contention 92 must be summarily resolved in LILCO's favor. To the contrary, as .
I even a cursory reading of ALAB-847 reveals, disputed factual questions regarding the adequacy of LILCO's Plan remain open and have yet to be decided.
For example, in remanding to this Board the issues raised by Contention 92 so that the Board could " determine anew" the adequacy of LILCO's Plan as it relates to the fulfillment of functions ordinarily performed by the State of New York, the 5/ The Appeal Board reasoned as follows:
We agree with the Licensing Board that, in terms, LILCO cannot satisfy section 50.47(b) or conform to the guidance in NUREG-0654. But in CLI-86-13, issued after the Board reached its decision under review here, the Commission expressly determined, in the context of reviewing LILCO's overall proposal, that a utility plan prepared without any governmental cooperation might pass muster under 10 CFR 50.47(c). In other words, contrary to the Board's determination, the lack of any coordination with the State does not preclude LILCO from attempting to demonstrate that it can meet the requirements of 10 CFR 50.47(c)(1). Nor does it prevent the Commission from making the requisite finding pursuant to 10 CFR 50.47(a) that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. As a consequence, the Licensing Board's determination cannot stand.
24 NRC at 431.
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l l l l
Appeal Board specifically noted that this Board initially had not identified any specific defect in LILCO's Plan to substitute for State participation. Rather, the Board had rejected LILCO's Plan because it believed both that the State might do things "above and q beyond" the four functions addressed in the LILCO Planl/ and that the Governments acting together with LILCO could somehow do the job better than LILCO acting alone. But, as recognized by the Appeal Board, this Board did not find it necessary to specify precisely how LILCO's Plan was deficient, or how the State's j i participation would make it better, in view of its primary 1
conclusion -- later rejected by the Commission -- that LILCO could not comply with 10 CFR 50.47(c) and NUREG 0654. Thus, on remand, this Board was instructed to " reexamine" whether there are identifiable deficiencies in LILCO's ability to fulfill those functions ordinarily performed by the State so as to render the ;
LILCO Plan inadequate. 24 NRC at 432. Such a reexamination will necessarily require this Board to consider and resolve certain material factual questions regarding the adequacy of LILCO's Plan as to which the Governments contend there are genuine issues in l
)
dispute.E/ '
/ These functions are those set forth in LILCO's Motion (at page 2).
E/ The allegedly undisputed " facts" upon which LILCO's Motion is based are for the most part irrelevant to the issues raised by Contention 92, in that they have nothing to do with whether whatever "best effort" response may be presumed by the State in an emergency would be adequate or sufficient to meet the regulatory requirements set forth in Contention 92. LILCO's
" facts" also ignore the coordination issue specifically raised by the contention. The Papile Affidavit, the other matters set forth in this Answer, and the Governments' Statement of Disputed )
Facts make clear that there are triable factual issues on these j matters. l (footnote continued)
1 .
For example,. contrary to LILCO's assertion (at pages 6-8 of LILCO's Motion), following the Appeal Board's remand in ALAB-847 there remain genuine triable issues of material fact with regard to the adequacy of the LILCO Plan to fulfill the four State functions set forth in LILCO's Motion (at page 2). LILCO relies upon its personnel and the purported capability of its personnel to perform these functions. This must be rejected for reasons already discussed. Further, it must be recognized that the dose l projection, ingestion pathway sampling, interdiction of 1
l- contaminated foods, and issuance of protective action recommendations functions cited by LILCO are merely representative of the kinds of functions that New York State might perform in a genuine Shoreham emergency.2/ Indeed, this Board has previously (footnote continued from previous page)
In addition, as noted in the attached Statement of Disputed Facts, LILCO's " facts" are wrong. For example, LILCO " Fact" No. 3 asserts that the four State functions have to do primarily with the ingestion pathway EPZ and involve activities generally conducted in the aftermath of an accident when there is more time for deliberation. As discussed belos, this LILCO assertion is false. At least two of the State functions cited by LILCO --
dose projection and the issuance of protective action recommendations -- have to do primarily with the plume exposure EPZ. Further, this Board has itself recently ruled that the timing of the emergency response and the pressure under which such a response must be made are irrelevant to the requirements imposed by the NRC's regulations. September 17 Order at 36-37.
Thus, LILCO's assertion that the State functions that would be performed would be conducted when -there is " time for deliberation" is at best wholly irrelevant. Seg also note 4 above, where LILCO " Facts" Nos. 4 and 5 are specifically disputed.
1/ Indeed, LILCO has previously conceded this point. See, e.o., Cordaro and Weismantle, ff. Tr. 13,899, at 6 ("New York State personnel cenerally perform four functions in an emergency at a nuclear power plant")(emphasis added); id. at 7 (LILCO would "welcome" assistance from the State with respect to the above-mentioned four functions "or other emergency response activities" prior to or at the time of a Shoreham emergency); LILCO's (footnote continued)
_______x_____--___ __
l l
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l noted as much ("we have a great deal of trouble accepting that j that is all that a State might do in a genuine emergency," 21 NRC l at 884-85).
LILCO argues that this Board's prior " observation" regarding the possibility that the State would exercise broader powers and resources than those called for in performing the four functions cited by LILCO is no longer applicable and thus cannot be considered by the Board in addressing the issues raised by the Appeal Board's remand of Contention 92. LILCO's Motion at 7. In support of this position, LILCO makes two basic arguments. Each is without merit.
First, LILCO asserts that neither of the two prerequisites necessary for the Board to find one or more specific deficiencies in LILCO's Plan -- a contention alleging the deficiency with the requisite specificity and basis and evidence of the deficiency --
exists. Therefore, according to LILCO, this Board is precluded from finding the LILCO Plan inadequate. Id. LILCO is incorrect.
There is an admitted contention -- Contention 92 -- specifying a deficiency not already resolved in LILCO favor.lE/ Contrary to LILCO's suggestion, Contention 92 , raises issues broader than the four State functions discussed in LILCO's Motion; indeed, as (footnote continued from previous page)
Proposed Findings of Fact and Conclusions of Law on Offsite Emergency Planning, Oct. 5, 1984, at 313 ("New York State personnel cenerally perform four functions in an emergency at a nuclear power plant in the State")(emphasis added).
lE/ The admission of Contention 92, it should be noted, was never opposed by LILCO. See LILCO's Objections to Interveners'
" Revised Emergency Planning Contentions," Aug. 2, 1983.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ )
already discussed, the primary issue raised concerns whether i
LILCO's Plan provides for the coordination of LILCO's emergency j l
' response with that of the State (assuming such a response would occur).ll/ On this score,-neither this Board nor the Appeal Board in remanding the issues raised by Contention 92 has ruled in LILC0's favor.
Furthermore, as already discussed, New York State would not necessarily limit any response it might make to a Shoreham emergency to the four functions identified in LILCO's Motion.
This point was explicitly recognized by the Appeal Board in remanding Contention 92's issues to this Board with the instruction that the Board should determine whether and how the State's participation would make LILCO's Plan better. 24 NRC at 432. Clearly, if the Board finds that the State's capabilities and resources are necessary to provide adequate protection to the public, and clearly they are since it is illegal for LILCO to perform these functions, then it must find once again that the Governments have prevailed on Contention 92.12/
11/ Egg LILCO's Proposed Findings of Fact and Conclusions of Law on Offsite Emergency Planning, Oct. 5, 1984, at 312 (" Contention 92 raises four issues regarding a#New York State Emergency Plan for Shoreham: (1) whether such a plan exists; (2) whether the LILCO Plan is adequate absent a State Plan; (3) whether the State would respond during an actual emergency; and (4) whether the LILCO Plan provides for coordination of LERO and State responses should the State respond in an emergency . . . ").
12/ Put another way, it is only if the Board finds that the insufficiencies in LILCO's Plan result solely from either
"(i) LILCO's inability to do things not required by the regulations, or (ii) the State's capacity to provide a level of safety bevond that considered adecuate" that the Board could find in LILCO's favor. 24 NRC at 432 (emphasis added).
Moreover, contrary to LILCO's assertion (LILCO's Motion at 7), there is evidence concerning the factual-issues raised by Contention 92 which demonstrates deficiencies in LILCO's Plan.
This evidence, however,.actually results from the absence of any evidence of re, rd that New York State would participate in an actual emergency at Shoreham or that any ad h g 2State _ response would comply with NRC's regulations, be meaningful, coordinated or integrated with LILCO's proposed response or otherwise protect the public health and safety. Even if it is assumed that the Commission's decision in CLI-86-13 resolved-this first point (the State's undefined "best effort" participation) in LILCO's favor, it is beyond dispute that the second point (the lack of meaningful coordination between LILCO and the State and the lack of any l
evidence about the nature or adequacy of an assumed "best efforts" governmental response), based upon the present evidentiary record, must be resolved in favor of the Governments. geg Papile Affidavit, H1 2, 3. It is of no significance that the Governments-presented no direct case on Contention 92 or that their cross-examination of LILCO's witnesses was brief. Such matters are entirely inconsequential. What is not inconsequential is that, pending further factual inquiry by this Board, there can be no conclusion reached, based upon the existing evidentiary record, other than to find that there is no " reasonable assurance that an integrated or coordinated emergency response that include (s) the State would occur." 21 NRC at 884. Put another way, there is no evidence of record upon which the Board could base a finding as to f
1
what a " coordinated" response would consist of in this case.
Indeed, this Board itself so found in dealing with the legal authority issues in its September 17 Order. Egg discussion below.
LILCO urges a second reason why Contention 92 must be decided in its favor as a matter of law: that this Board's original finding on Contention 92, which was premised on the absence of State participation in an emergency response, was reversed by the Commission's decision in CLI-86-13. LILCO's Motion at 8.
However, even if this Board did originally premise its finding on Contention 92 on the absence of State participation, that'provides no basis for now resolving the contention in LILCO's favor.
Indeed, if anything, the Commission's decision in CLI-86-13 requires further evidentiary proceedings on Contention 92, given the clear acknowledgement in that decision that more information is needed and questions must be answered about what an ad hoc "best efforts" Government response would be and whether it would be adequate.13/ In addition, for reasons already discussed, the 13/ In the Government's view, there can no longer be any question as to whether the Commission's decision in CLI-86-13 forecloses the possibility of now resolving Contention 92 in LILCO's favor, based upon some "best effort" response by the State during a Shoreham emergency. This Board's recent interpretation of CLI-86-13 makes abundantly clear that the Commission's "best efforts" assump'tions do not necessarily mean that whatever response would be forthcoming from the State would necessarily be adequate. For example, the Board reasoned that:
. . . [T]he Commission's "best effort" assumptions, including the use of the LILCO (P]lan for planning information and options, are not restrictive so as to make indisputable what the participation by the Government will be and what will be accomplished. Employing the assumptions as the Commission did, the assumptions leave open to question how the (footnote continued)
position advocated by LILCO suffers from the unfounded assumption that only the four functions identified by LILCO would be performed by the State in the event of a Shoreham emergency l (assuming a response were forthcoming).
LILCO's final basis for contending that Contention 92 should be resolved in its favor -- that coordination with the State is somehow not a litigable issue and " plays no role" in the (footnote continued from previous page)
Governments will respond and whether that response will fulfill regulatory requirements.
To answer the questions, we are directed to supplement the existing record by further proceedings to the extent necessary. Thus, we are fully satisfied that the "best effort" assumptions made by the Commission are not conclusive as to establishing a single method of response by Interveners.
September 17 Order, at 23.
Similarly, the Board noted that:
As we discussed previously, the "best effort" assumptions do not formulate a single response. They leave open to question how the Governments will respond and whether their response will be adequate in fulfilling regulatory requirements. The scenario that Applicant presents as to what form Interveners' response would be during an emergency at Shoreham is unsupported by CLI-86-13, or otherwise in this record.
Applicant does not premise its assertion on what the Governments response will be on undisputed fact.
Rather, it is based on the supposition of what the Applicant expects the State and County would do considering that they would have access to what the LILCO Plan offers, something which in Applicant's view is an important resource. Thus, the response theorized is without factual basis.
Id. at 26. Thus, it was concluded that only by " hearing and l weighing the positions of the parties" could it be determined what the Governments' response would be during a Shoreham emergency.
Id. at 27. Accordingly, LILCO's motion for summary disposition on the so-called legal authority issues was denied.
resolution-of Contention 92 (LILCO's Motion at 8-10) -- has, for the most part, been dealt with, and little more need be said. It is beyond dispute, and indeed LILCO has previously conceded, that the Plan's failure to provide for coordination between'LILCO's emergency response and any response that might be made by the State is specifically raised by Contention 92. LILCO's transparent attempt to assert that the contention means something other than what it explicitly alleges should be summarily rejected, especially since Contention 92 has been'at issue in this proceeding for more than four years, and LILCO never opposed its admission.li/
LILCO does make two arguments in asserting that the issue of coordination should be ignored by the Board that require at least brief response. First, LILCO repeats its assertion that the Board's original ruling on Contention 92 was based on the absence of a State response altogether, not on any alleged lack of coordination, and that this somehow bars further proceedings on the contention. LILCO's Motion at 8. This ignores the fact that since the Board's original ruling, the Commission has issued its decision in CLI-86-13, which assumes some "best efforts" response but mandates further evidentiary hearings to determine what that response would be. It also ignores the Appeal Board's remand in
.lA/ jip_q note 10 above.
)
- ALAB-847, which makes clear that this Board, among other things, is to determine whether and how the State's participation would make LILCO's Plan better.11/
Second, LILCO asserts that the issue of coordination between it and the State is part and parcel of LILCO's " realism" issue and should not be duplicated under Contention 92. Id. at 9. LILCO, of course, has now lost its attempt to have the " realism" issue i resolved summarily in its favor, and pursuant to the Board's September 17 Order, further evidentiary hearings are to be held.
To be sure, the issues raised by Contention 92, particularly the coordination issue, are in some ways similar to the " realism" and legal authority issues for which evidentiary hearings are to be held. This is not to say, however, that Contention 92 should now be wiped out of existence. That contention has been at issue since July 26, 1983, when the Governments' Revised Emergency Planning Contentions were proffered to the Board. Its admission was never opposed by LILCO, its language and allegations have never changed, nor have the issues raised, including that of the Plan's failure to provide for coordination of LILCO's response with that of the State. LILCO, in essence, by now asserting that Contention 92 merely duplicates the " realism" issue, seeks to cppose Contention 92's admission. It is far too late for this, and LILCO's backdoor maneuvering should be rejected.
15/ The fact is that the Board in the PID had no need to address the coordination issue because it ruled for the Governments on the basis of other factors. Now that Contention 92 has been ;
remanded to the Board, the coordination issue cannot be ignored.
W
The Board should also reject the absurd notion put forth-by LILCO (at page 9) that " coordination" is for the most part simply being able to talk with the State. Coordination is much more, as this Board's September 17 Order makes clear.(2222, in rejecting LILCO's summary disposition motion on Contention 6 and LILCO's view that the Commission's "best effort" assumption merely requires the State and County to stay in "more or less continuous contact" with LILCO; September 17 Order at 32-33).16/
This Board's September 17 Order also compels rejection of LILCO's assertion that it is " inherently implausible" for the lack of coordination between LILCO and the State to pose a health and safety problem for the functions LILCO claims to be addressed by Contention 92. LILCO's Motion at 9-10. First, contrary to 16/ The Board should also reject LILCO's suggestion that if its request for summary disposition of Contention 92 is denied, that result would be contrary to CLI-86-13. LILCO's Motion at 9.
This mischaracterizes the Commission's decision; it also ignores the Commission's earlier decision in CLI-83-13, where it was decided that LILCO should be given an opportunity to demonstrate that its utility-implemented plan could be an adequate substitute for a local government-approved emergency response plan. In rendering that decision, the Commission chose not to anticipate events:
(the utility's plan will] be examined by the Federal Emergency Management Agency, the NRC Staff, and ultimately the Licensing Board in the pending Shoreham adjudication in which the licensee will bear the burden of showing that its plan can meet all applicable regulatory standards. We express no opinion at this juncture whether it will be possible for the utility to meet its burden . . . .
17 NRC 741, at 743. A finding that LILCO is not entitled to summary disposition on Contention 92 would not be in conflict with this decision or with the Commission's more recent pronouncements in CLI-86-13. Indeed, such a result is compelled by those decisions and by the evidentiary record as it now stands.
LILCO's claim, the four tasks LILCO believes the State would perform do not have to do primarily with the ingestion pathway EPZ. Indeed, at least two of those tasks -- dose projection based on release data communicated to State officials and the issuance of protective action recommendations via the radio and local s emergency broadcast network -- are primarily related to plume exposure EPZ activities. Thus, they do not involve activities generally conducted in the aftermath of an accident, as LILCO claims. Moreover, even if they did, this Board's September 17 Order has rendered academic LILCO's assertion, in that the Board found in connection with Contentions 7 and 8 (concerning the implementation of protective actions for the ingestion pathway and activities relating to recovery and reentry) that the timing and the pressure under which such a response must be made are irrelevant to the requirements imposed by the NRC's regulations.
September 17 Order, at 36-37.
Finally, it must be recognized that, in some respects, it is the coordination issue that most clearly mandates denial of LILCO's Motion. Indeed, all four of the State functions identified in LILCO's Motion have been found by this Board to involve factual disputes requiring denial of LILCO's motion for summary disposition of the legal authority issues. See September 17 Order at 30-31 (Contention 5 regarding EBS messages), 31-33 (Contention 6 regarding emergency protective action decisions and recommendations), and 36-39 (Contentions 7 and 8 regarding post-emergency functions). Even with respect to issues previously resolved in LILCO's favor (e.o., Contention 81), the situation
\
1 l
l confronting the Board has changed because of the Commission's decision in CLI-86-13. Thus, the adequacy of LILCO's Plan --
l including whether and how the Plan provides for coordination l
between LILCO and the State with respect to the performance of l
l those functions LILCO expects the State to perform -- must be subject to renewed scrutiny by this Board. (E.a., with respect to the interdiction of contaminated foods, would LILCO and the State l work at cross purposes, or if LILCO withdrew, would the Governments' action comply with NRC regulations; September 17 Order at 37-38).
III. Conclusion For the foregoing reasons, LILCO's Motion should be denied.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 Herbert H. Brown Lawrence C. Lanpher Michael S. Miller Kirkpatrick & Lockhart 1800 M Street, N.W.
South Lobby - 9th Floor ,
Washington, D.C. 20036-5891 Attorneys for Suffolk County l I
l
___ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - _ J
YW4) -6 Fabian G. Palomino 7M u d /7lf Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Richard J. Zahnleuter Deputy Special Counsel to the ,
Governor of the State of New York l Executive Chamber Room Number 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York
&D W 6 Stephen B. Latham W
Twomey, Latham & Shea P.O. Box 398 33 West Second Street ,
Riverhead, New York 11901 !
Attorney for the Town of Southampton October 5, '1'987 STATEMENT OF MATERIAL FACTS AS TO WHICH THERE EXISTS A GENUINE ISSUE TO BE HEARD ON-MATTERS RAISED BY LILCO'S MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION 92
'l. Whether, assuming an ad D_qq "best efforts" response to a Shoreham emergency by New York State and Suffolk County, there is reasonable assurance that adequate protective measures'can and will be taken. Egg Lono Island Lichtina Co. (Shoreham Nuclear Power. Station, Unit 1), CLI-86-13, 24 NRC 31 (1986) (Commission
" unwilling to assume," as LILCO would have it do, that a "best effort government response would necessarily be adequate"); see also Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-87-26 (Sept. 17, 1987), at 24 (does not necessarily-follow that a "best efforts" response by the Governments will assure the adequacy of LILCO's Plan); Papile Affidavit, SV 2, 3. I i
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- 2. Whether, assuming an ad h2g "best effort" response to a i
Shoreham emergency by New York State, LILCO's emergency response, if any, would be consistent, coordinated, and integrated with whatever response would be made by New York State. See Papile Affidavit, 1 3; Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-87-26 (Sept. 17, 1987), at 24, 26.
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- 3. Whether New York State and Suffolk County personnel who would be responsible for directing and implementing an ad hoc "best efforts" response to a Shoreham emergency would be sufficiently familiar with the LILCO Plan to be able to implement l
all or a portion of it, with or without LILCO assistance. Egg Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit-1), CLI-86-13, 24 NRC 31 (1986) ("In point of fact, there are questions about the familiarity of State and County officials with the LILCO [P]lan . . ."); Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-87-26 (Sept. 17, 1987), at 25-26; Papile Affidavit, V 6.
- 4. Whether, assuming an ad hoc "best efforts" response by New York State and Suffolk County to a Shoreham emergency, the LILCO Plan would be utilized as the best source for emergency planning information and options. Egg Lono Island Lichtino Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-87-26 (Sept. 17, 1987), at 25-26 (LILCO's reliance on the "best efforts" assumptions in CLI-86-13 "does nothing to support LILCO's claim that the only way [the Governments] will respond will be to cooperate with (LILCO) using the LILCO [P]lan"); Papile Affidavit, US 2-3, 6; Affidavit of Mario M. Cuomo, Governor of the State of New York, dated May 6, 1987, including Exhibit A thereto (attached to the Governments' Answer to LILCO's Second Renewed Motion for Summary Disposition of the Legal Authority Issues, dated May 11, 1987).
- 5. Assuming an ad hog "best effort" response by New York State to a Shoreham emergency, whether State personnel would 1
I perform any or all of the following four functions, or whether functions in addition to or different from these might be carried out:
a) dose projection based on release data communicated to State officials; b) ingestion pathway sampling in the 50-mile EPZ; c) interdiction of contaminated foods; and d) issuance of protective action recommendations via the radio and local emergency broadcast network.
Egg, e.a., Cordaro and Weismantle, ff. Tr. 13,899, at 6 ("New York State personnel cenerally perform four functions in an emergency at a nuclear power plant") (emphasis added); Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1),
ALAB-847, 24 NRC 412, 430 (1986) (" Ordinarily, the State of New York would perform four functions . . ."); Lono Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-847, 24 NRC 412, 431-32 (1986).
- 6. Whether, assuming an ad hoc "best efforts" State and local government response to a Shoreham emergency, necessary and adequate dose projection functions can and will be implemented in a way that would comply with NRC regulations and guidance. See Lona Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-87-26 (Sept. 17, 1987), at 31-33 (additional evidence required regarding such questions as what criteria would be used to determine appropriate protective actions); Papile Affidavit, TV 2, 3.
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- 7. Whether, assuming an ad hag "best efforts'l State and local government response to a Shoreham emergency, necessary and
-adequate ingestion pathway sampling in the 50-mile EPZ can and will be implemented in a way that would cbmply.with NRC regulations and guidance. S0g Lono Island Lichtino Co. (Shoreham Nuclear Power-Station, Unit 1), LBP-87-26 (Sept. 17, 1987), at 36-38; Papile Affidavit, 11 2, 3.
- 8. Whether, assuming an ad hag "best efforts" State and local government response to a Shoreham emergency, necessary and adequate. actions to ensure the interdiction of contaminated foods can and will be implemented in a way that would comply.with NRC regulations and guidance. Egg Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-87-26 (Sept. 17, 1987), at 36-38 (qu9stions exist as to what would occur if LILCO proceeded independently with respect to the interdiction of contaminated foods, while the State and local governments did something unspecified to further the same ends; accordingly, not clear if .
compliance with NRC regulations would be obtained); Papile Affidavit, WH 2, 3.
- 9. Whether, assuming an ad hsc "best efforts" State and local government response.to a Shoreham emergency, the issuance L of protective action recommendations via the radio and local emergency broadcast network can and will be implemented in a way l
that would comply with NRC regulations and guidance. Egg Lona Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-87-26 (Sept. 17, 1987), at 29-33 (additional evidence 1
l
d required with respect to the issuance of protective action recommendations, the broadcast of EBS messages, and the activation of sirens); Papile Affidavit, 15 2, 3.
- 10. Whether the dose projection, ingestion pathway sampling, interdiction of contaminated foods, and issuance of protective action recommendations functions have to do primarily with the ingestion pathway EPZ and involve activities generally conducted in the aftermath of an accident when there is more time for deliberation. Egg Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-87-26 (Sept. 17, 1987), at 36-37 (timing of an emergency response and the pressure under which such must be made irrelevant to whether requirements imposed by the NRC's regulations are met); see cenerally Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644 (1985) (establishing that the dose projection and the issuance of protective action recommendations functions do not relate primarily to the ingestion pathway EPZ, but rather the plume exposure EPZ).
- 11. Whether, assuming an ad hoc "best efforts" State and local government response to a Shoreham emergency, either LILCO's attempt to perform the functions of dose projection, ingestion pathway sampling, interdiction of contaminated foods, and issuance of protective action recommendations (assuming LILCO somehow had the legal authority to do so), or LILCO's deferment of any action other than as might be requested by the State and local governments, so that their decisions and recommendations 1
4 would be implemented, provides reasonable assurance that adequate protective measures can and will be taken in a way that would comply with NRC regulations and guidance. Sgg, e.g., Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-87-26 (Sept. 17, 1987), at 36-38 (existing evidentiary record insufficient to support conclusion that the proper decisions, recommendations or actions concerning the implementation of protective actions for the ingestion pathway would materialize in a vay that would comply with NRC regulations).