ML20236C126

Response of Suffolk County,State of Ny & Town of Southampton to NRC Staff Response in Support of Lilco Motion for Summary Disposition of Contention 92.* Motion Should Be Denied Since Matl Facts Remain in Dispute.Certificate of Svc Encl

ML20236C126
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/20/1987
From:	Mark Miller, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:	Atomic Safety and Licensing Board Panel
References
CON-#487-4623 ALAB-847, CLI-86-13, LBP-87-26, OL-3, NUDOCS 8710270025
Download: ML20236C126 (13)

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SSCHETED 4 Octobepbyg, 1987 UNITED STATES OF AMERICA '87 OCT 22 P4 :08 i NUCLEAR. REGULATORY COMMISSION jF Before the' Atomic Safety and Licensina e,FICE DE SECRtlarly j tBig{gjERvlCL

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'In the Matter of )

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

)~ (Emergency Planning)

-(Shoreham Nuclear Power-. ) j

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RESPONSE OF SUFFOLK COUNTY, THE: STATE OF NEW YORK AND THE TOWN OF SOUTHAMPTON TO NRC STAFF RESPONSE IN SUPPORT

'OF LILCO MOTION-FOR

SUMMARY

DISPOSITION OF CONTENTION 92 Suffolk= county,.the State of New York, and the' Town of Southampton (hereafter, the " Governments") hereby respond, pursuant to 10 CFR S2.749(a), to the NRC Staff's Response in Support of LILCO's Motion for Summary Disposition of Contention 92, dated October 5, 1987 (hereafter, " Staff Response"). While the Governments. continue to believe that, based upon the law of the case, the existing evidentiary record, and in particular this Board's issuance of LBP-87-26,l/ LILCO's motion for summary disposition of Contention 92 must be denied, the Staff, like

'LILCO, would have the Board reach a contrary result. LILCO's reasoning and arguments in favor of summary disposition have 1/ Egg Lona Island Lichtino Co. (Shoreham Nuclear Power 4 Station, Unit-1), LBP-87-26 (Sept. 17, 1987) (hereafter, i sometimes " September 17 Order").

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already been addressed, and will not be repeated here.2/ The  !

Staff, however, in its pleading supporting LILCO's Motion, makes some arguments not raised by LILCO or anticipated by the Governments in their prior filing. Moreover, in many respects, the Staff misconstrues and misstates the issues raised by LILCO's Motion. To the extent it is necessary,3/ these Staff arguments 1 k

and misstatements are addressed below.

2/ Egg LILCO's Motion for Summary Disposition of Contention 92 (No New York State Emergency Plan), dated September 11, 1987 (hereafter, "LILCO's Motion"), which was opposed by the Governments in their October 5, 1987 pleading entitled " 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)" (hereafter, " Governments' Answer").

3/ In the Governments view, many of the positions advocated by the Staff are so wholly lacking in merit that little, if anything, need be said in this Response; rather, the Governments rely upon the Answer filed in opposition to LILCO's Motion on October 5. For example, it is far too late to question (as the Staff does) whether Contention 92 should have been admitted. Sag Staff Response at 6, n.l. As pointed out in the Governments' Answer (at page 19), Contention 92 has been at issue since July 26, 1983, when the Governments' Revised Emergency Planning Contentions were proffered to the Board. Its language and {

allegations have never changed, nor have the issues raised, l including that of the LILCO Plan's failure to provide for coordination of LILCO's response with that of the State (assuming such a response were to occur). Moreover, it is especially wrong j for the Staff to question Contention 92's admission based upon j the Appeal Board's decision in ALAB-847, since the Staff not only 1 misconstrues but miscuotes the Appeal Board. See Staff Response at 6. The Appeal Board did not say, as the Staff claims, that "the lack of coordination with the State does not preclude LILCO from demonstrating that it can meet the requirements of" 10 CFR 550.47(c)(1). Rather, the Appeal Board simply noted that the l lack of coordination with the State "does not preclude LILCO from l attemotina to demonstrate" that it can meet Section 50.47(c)(1)'s l requirements. Lono Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-847, 24 NRC 412, 431 (1986) (emphasis added).

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- 1. Thel Staff Response'so completely mischaracterizes CLI-86-13 4 /'thatLit'is virtually useless to the Board in its consideration of LILCO's Motion. According to the Staff, for example, CLI-86-13 announced that "a utility plan could be found

.to meet commission emergency planning regulations even in the-total absence of State.coope. ration." 1 Staff Response at 2. CLI-l 86-13, however, contains no such Commission pronouncement.

.Indeed, it is the Commission's discussion of LILCO's realism argument, which assumes some "best effort" State and County response to a Shoreham emergency, that makes CLI-86-13 noteworthy. Nowhere in that decision is it even implied that LILCO's Plan could be.found to satisfy the Commission's emergency planning regulations in the. total absence of a State or County response.1/

2. The Staff baldly asserts that "the. factual matters cited by the Board in its September 17, 1987 Memorandum and Order are not material to a decision on Contention EP 92 . . . .

I Staff Response at 4. This is absurd, for the reasons set forth in the Governments' Answer. For example, all four of the tasks <

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A/ Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit'l), CLI-86-13, 24 NRC 22 (1986).

1/ The Staff's mischaracterization of CLI-86-13 is but one of many reasons why the Board should view the Staff Response as-virtually useless. Others include the Staff's flawed reasoning and the absence of any real analysis by the Staff of the issues raised by LILCO's Motion. Moreover, in some respects the Staff Response is not even intelligible; in other respects it is simply wrong (e.g., in claiming in the second footnote (at pages 6-7)  ;

that, in LBP-85-12, the Board did not find LILCO to lack the 7 legal authority to carry out its Plan, notwithstanding the Board's conclusion in that same decision that "the activities (LILCO) seeks to perform as specified in Contentions 1-10 are unlawful," 21 NRC 644, 919 (1985)).

which'LILCO believes the State would perform in the event of a radiological emergency at Shoreham -- dose projection, ingestion pathway sampling, the interdiction of contaminated foods, and the issuance of protective action recommendations -- were identified as involving factual disputes requiring denial of LILCO's motion for summary disposition of the legal authority issues in this Board's September 17 Order. Ege, e.a., September 17 Order at 30-31 (EBS messages), 31-33 (emergency protective action decisions and recommendations), and 36-39 (post-emergency functions). Thus, material factual issues regarding the adequacy of'LILCO's Plan, including whether and how the Plan provides for coordination b'etween~LILCO and the State with respect to the performance of the functions LILCO expects the State to perform, remain to be determined, and LILCO's motion for summary disposition of Contention 92, notwithstanding the Staff's assertion to the contrary, must be denied.

3. The Staff, like LILCO, unjustifiably assumes that Contention 92 is nothing more than an ingestion pathway contention. Sag, e.Q,, Staff Response at 4 ("[t}he central question" is whether "the LILCO Plan provisions for the ingestion exposure pathway constitute adequate ' interim compensating actions'" under 10 CFR 550.47(c) and do not " stand in the way of l a reasonable assurance finding" under 10 CFR 550.47(a)). As previously demonstrated, however (sgg Governments' Answer at 4,

.for example), Contention 92 focuses not upon the ingestion {

l pathway provisions of LILCO's Plan, but rather upon the Plan's I failure to provide for an integrated and coordinated response I

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... I between-LILCO's emergency response and that of the State (assuming such a response'would occur). As a result, many of.the Staff's assertions-are simply irrelevant to the real issues raised by LILCO's Motion and should be ignored by the Board.  ;

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4. The' Staff glibly asserts that this Board has found .

"that' absence of mandatory legal authority does not stand in the way of implementation of the LILCO Plan." Staff Response at 7.

Presumably,-despite the plain meaning of these words, the Staff i

does not mean to assert that the absence of legal authority does not bar implementation of LILCO's Plan. This would be contrary to this Board's prior decision in the partial initial decision (hereafter, "PID") which held that, on the basis of Cuomo v.

LILCO, Consol. Index No. 84-4615 (N.Y..Sup. Ct., slip op.,

Feb. 20, 1985), LILCO was barred by State law from implementing the' actions enumerated in Contentions 1-10. Thus, it must be assumed that the Staff actually intended only to argue that the absence of legal authority does.not bar the implementation of i those aspects of the Plan related to ingestion pathway matters.

Even then, however, the Staff goes too far. This Board's September 17 Order makes clear that, based upon Cuomo v. LILCO, it must be recognized that LILCO cannot lawfully perform the

-ingestion pathway functions which the Board in the PID apparently found LILCO capable of' performing. Egg, e.g., September 17 Order at 25. Accordingly, those portions of the PID upon which the l

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d Staff relies relating to LILCO's asserted capability to perform specified ingestion pathway functions are irrelevant to the issues raised by LILCO's Motion.6/

5. The Staff also errs in asserting that ALAB-847 found that State planning and cooperation are neither a prerequisite to a finding of regulatory compliance with 10 CFR 550.47(b)(10) and NUREG-0654 nor would provide a superior response to a radiological emergency. Staff Response at 7. To the contrary, in ALAB-847 the Appeal Board expressly agreed with this Board that LILCO's Plan could not be found to satisfy Section 50.47(b) or NUREG-0654. Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-847, 24 NRC 412, 431 (1986). It also acknowledged that the State's participation would likely make LILCO's Plan better. Nonetheless, the Appeal Board was required to conclude, based upon the Commission's decision in CLI-86-13, that

. . . a utility plan cannot be deemed to have shortcomings simply because a governmental body may perform various undescribed functions not required by the regulations. Moreover, the ;uf ficiency of

" interim compensatory actions" designed to k Fu thermore the Staff is mistaken in suggesting that this Board, in its September 17 Order, reaffirmed its PID finding that LILCO "could give reasonable assurance that contaminated food would not enter the general market." See Staff Response at 7.

In reality, the Board merely stated what it had decided in'the PID so that it could contrast why the issues raised by LILCO's j summary disposition motion on the legal authority issues required I

a different result, See September 17 Order at 38.

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4 accommodate for deficiencies such as the lack of a state plan need not necessarily provide precisely the same level of protection that total correction of the deficiencies would offer.

24 NRC at 432 (footnote omitted).

6. The Staff concedes that, as it views Contention 92, this Board's denial of summary disposition in LILCO's favor on Contention 7 (ingestion pathsay protective actions) also bars summary disposition on Contention 92. Staff Response at 8. It therefore apparently argues for reconsideration and reversal of the Board's September 17 Order, at least with respect to Contention 7. The Staff, however, is untimely. Further, its arguments for reconsideration and reversal lack merit and should be rejected by the Board.1/

1/ The Staff's first argument, for example, is premised on the fact that the State allegedly would never direct non-interdiction of contaminated foods. Staff Response at 8. This argument is irrelevant to the issues raised by Contention 7, including the Board's concerns as to whether NRC regulations would be satisfied under circumstances where the State responds to a Shoreham emergency on a "best efforts" basis. See, e.o., September 17 Order at 38 ("by no means clear . . . that (LILCO and the State]

would not work at cross purposes . . . .").

The Staff's second argument for reconsideration and reversal is no more persuasive. The Staff claims that the Board's finding in the PID -- that the State's superior resources would lead to a more comprehensive response in a genuine emergency -- is inconsistent with its September 17 Order. Staff Response at 9.

There is no inconsistency, however. The Board's concern, as

expressed most recently, was simply that until it is determined what actions the Governments would likely take in a Shoreham emergency, there can be no assurance that NRC regulations will be i met. September 17 Order at 38. Doubt was not expressed as to the adequacy of the response, as the Staff claims; rather, the l

[ Board merely noted that the lack of information regarding what I actions would be taken or implemented leads to uncertainty.

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7. With respect to the Staff's argument that there is no basis for-disputing that LILCO'could buy and keep from the market contaminated food (Staff Response at 8, n.3), it need only be

pdinted out;that the Staff again errs in treating Contention 92 as j -an ingestion pathway _ contention. It is not, and the Staff's  !

argunient 'is wholly ir relevant . - Further, this Board has previously  !

rejected the argument made.by the Staff. Egg September 17 Order, I at 36-38.

8._ Contrary to the Staff's claim (Staff Response at 9), it is necessary in the_ aftermath of the Commission's decision in CLI-86-13 to look at what the State might-do when faced with an l

emergency at Shoreham in order to decide whether the LILCO Plan provides sufficient " interim compensating actions" under 10 CFR 550.47(c). Indeed, the Appeal Board specifically instructed this Board on remand to do so. See ALAB-847, 24 NRC at 432 i

(instructing Licensing Board to determine whether and how the y State's participation would make LILCO's Plan better and to decide  !

whether such participation'is necessary to provide adequate protection to he public).

In sum, there remain material facts in dispute with respect f to Contention 92. Accordingly, LILCO's motion for summary i

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V disposition of content' ion 92 and the Staff's resp'nse o in support thereof should be rejected by the Board.

Respectfully submitted, Martin Bradley Ashare

, Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 b , W 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

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Fabian G. Palomino Special Counsel to the Governor of the State of New York i Executive Chamber, Room 229 Capitol Building 1 Albany, New York 12224 Richard J. Zahnleuter Deputy Special Counsel to the Governor of the State of New York Executive Chamber Room Number 229 Capitol Building Albany, New York 12224 l Attorneys for Mario M. Cuomo, Governor of the State of New York l

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'/ 1E Steph6n B. Latham L Twomey, Latham &'Shea-P.O. Box'398 f 33 West Second Street Riverhead, New York.~11901 .

Attorney for'the Town of Southampton.

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1. 8CHETED:" a USNRC October 20, 1987' }

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'87 OCT 22 P4 :08 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION (FFICE OF SECHOAdy Before the Atomic Safety and~Licensino Board54CMETING ORANCH& SEnvicr' i i

) '

In the Matter'of )

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

~(Shoreham Nuclear Power Station,

) (Emergency Planning)

)-

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of RESPONSE OF SUFFOLK COUNTY, OF NEW YORK, STATE AND TOWN OF SOUTHAMPTON TO NRC STAFF RESPONSE IN SUPPORT OF.LILCO MOTION FOR

SUMMARY

DISPOSITION OF CONTENTION 92 have been served on the following this 20th day of October, by U.S. mail, 1987 first class.

Morton B. Margulies, Esq., Chairman Mr. Frederick J. Shon Atomic Safety and Licensing Board '

Atomic Safety and Licensing Board U.S.-Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission i

Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry R. Kline William R. Cumming, Esq.

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' Atomic. Safety and Licensing Board Spence W. Perry, Esq.

U.S. Nuclear Regulatory Commission Office of General Counsel ]

Washington, D.C. 20555 {

Federal Emergency Management Agency l 500 C Street, S.W., Room 840 Washington, D . C '. 20472

)

Fabian G. Palomino, Esq. W. Taylor Reveley, III, Esq.

Richard J. Zahnleuter, Esq. Hunton & Williams

.Special Counsel,to the Governor P.O. Box-1535 Executive Chamber, Rm. 229 State Capitol 707 East Main Street Richmond, Virginia 23212 Albany, New York 12224 l

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Joel Blau, Esq. Anthony F. Earley, Jr., Esq.

Director, Utility Intervention General Counsel N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 175 East Old Country Road Albany, New York 12210 Hicksville, New York 11801 Martin Bradley Ashare, Esq. Ms. Elisabeth Taibbi, Clerk Suffolk County Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Building l Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Mr. L. F. Britt Stephen B. Latham, Esq.

Long Island Lighting Company Twomey, Latham & Shea l

Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.

195 East Main Street 1717 H Street, N.W.

Smithtown, New York 11787 Washington, D.C. 20555 Mary M. Gundrum, Esq.. Hon. Michael A. LoGrande New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 Mr. Jay Dunkleburger Richard G. Bachmann, Esq.

New York State Energy Office U.S. Nuclear Regulatory Comm.

Agency Building 2 Office of General Counsel Empire State Plaza Washington, D.C. 20555 Albany, New York 12223 David A. Brownlee, Esq. Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W. 43rd Street New York, New York 10036

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' Michael S. ; Miller.

-KIRKPATRICK & LOCKHART- ,

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