ML20236E085

NRC Staff Response to Lilco Motion for Reconsideration & Referral of Board Ruling on Summary Disposition of Realism Issue.* Referral Premature & Unwarranted.Mod Should Be Denied.Certificate of Svc Encl

ML20236E085
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/20/1987
From:	Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#487-4668 CLI-86-13, OL-3, NUDOCS 8710290058
Download: ML20236E085 (9)

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4 SSCHETED USNRC UNITED STATES OF AMERICA - . . . -

NUCLEAR REGULATORY COMMISSION

'87 TT 23 P3 :54-BEFORE THE ATOMIC SAFETY AND LICENSING BOAdcg{ Ic g, Qg BRANCli in the Matter of ~ )

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

-). -(Emergency Planning)

(Shorcham Nuclear Power Station, )-

Unit 1) )

NRC STAFF RESPONSE TO LlLCO MOTION FOR

' RECONSIDERATION AND REFERRAL OF THE BOARD'S RULING ON

SUMMARY

DISPOSITION OF THE REALISM ISSUE I. INTRODUCTION LI LCO's Motion 1 for Reconsideration and Alternative Request for

, I Referral to the Commission (Realism 1ssue) (" Motion"), dated - October 5, 3

1987, . rests- principally on LILCO's- view that the Licensing Board's September.' 17, 1987 ruling on LILCO's request for summary disposition of the realism Issue misinterprets the task of this Licensing Board 'on remand of CLI-86-13. LILCO argues that CLI-86-13 instructs the- Beard to attempt to determine the potential range of effects of . best-effort, but essentially ad hoc, contributions by [ State and local]

governments to implementation of LI LCO's existing plan with existing resources. Thus the decision focuses on governmental ca aabilities and presumes definitively that those capab lities will be harnessed with good faith, rather than on present prediction of future intentions, to be gleaned from the testimony of the litigation-wise leaders of the political opposition to Shoreham.

Motion at 4 (Emphasis in original). LILCO characterizes any attempt to

' determine in hearings what Intervenor governments' intentions in a ,

Shoreham emergency might be to be " Inherently speculative" and likely to 8710290058 871020 zon nom osega 3}9

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1 be unproductive due to the refusal of New York State and Suffolk County 1

to provide information of this sort during previous stages of this litigation. Id. at 4-7. l l

LILCO also argues that the Board misinterpreted the applicability of l the' New York State court c'ecision barring delegation of police authority to LILCO to LILCO's realism argument, and addresses briefly several other asserted errors. Id. at 2, 7-8, 9, n.10.

LILCO seeks reconsideration and reversal ~ of the Board's September 17, 1987 decision based on the Issues raised in the Motion, and argues that, upon reconsideration, summary disposition should be granted. Id. at 3, 9. However, LILCO's Motion also appears to seek a restatement of Applicant's burden of proof in forthcoming hearings on the realism issue. Specifically, LILCO seeks a ruling that it need not prove what New York State and Suffolk County would in fact do in the ev.ent of  ;

l an emergency, but only what those entitles' capabilities would be. I LILCO correctly argues that CLI-86-13 instructs the Board to determine "the potential range of effects" of an ad hoc, best-efforts local government implementation of the existing LILCO plan, and that government capabilities are important to such determination. However, CLl-86-13 also requires an inquiry into what in fact the local governments would do in an emergency, given the Commission's assumptions. The partles' views on the issues to be considered in this phase of the proceeding are to be addressed in the parties' responses to the Board's October 8, 1987 Memorandum to the Parties. With one exception noted

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ic below, ll no cause exists for the Board to reconsider its September 17, ]

1987, ruling or refer it to the Commission.

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11. DISCUSSION j 4

.A.- Reconsideration of the Board's September.17, 1987 Decision is Not j Warranted 1 in C LI-86-13, the Commission was unwilling to assume that an ad j

hoc, best-effort government response using the LlLCO Plan would j I

necessarily be adequate. 24 NRC at 31. It therefore remanded the -

realism issue to the Licensing Board to address (1) the familiarity of State and County officials with the LILCO Plan, and (2) the impact -- In I

terms of - delay in response and lesser dose savings -- of ad hoc, i best-effort government participation in dierting the public and in, making and implementing various protective action decisions and controls. LILCO argues that resolution of these factual questions should be Ilmited to evaluation. of State and County response capabilities, and that the Board erroneously determined that CLI-86-13 required it to address "what the 'l State and County response to a radiological emergency would be." Motion at 4, 6. However, of the issues enumerated in CLI-86-13, only the que.stion of the familiarity of State and County officials with the LILCO Plan is essentially an issue of capabilities. The other issues enumerated, 1/ In footnote 10 of its Motion, LILCO seeks reconsideration, inter alla, of the Board's decision relating to Contention EP 7. As statea Tn the Staff's response to LILCO's motion for summary disposition of Contention EP 92, the Board has already found that LILCO has the ability to take necessary interdiction measures without mandatory ,

authority. As a result, summary disposition of Centention EP 7 is warranted.

{. i namely "how much delay can be expected" based on an ad_ hoc, best-effort, local government response in areas such as alerting the public and l protective action decisionmaking deal not only with resources, but with the interaction of offsite officials with the emergency response system created by the LILCO Plan. The implication of these interactions on response times and dose savings cannot be meaningfully addressed without exploring what the governments would do. See CLl-86-13, 24 NRC 22, 31 (1986). 1 LILCO argues not only that it is unnecessary to; determine what the governments would do in an emergency, but also, that it is not

" realistic." Motion at 4. LILCO states that the Intervenor governments will not be forthcoming with information, concerning what they might do, and the proceeding "will prove an dxercise in frustration." id. at 6.

This prediction about what Interveners will do, even if accurate, does not show that the Board improperly interpreted the Commission's instructions in CLI-86-13. The possibility that the interveners will not be " fully forthcoming" (Motion at 6) goes to the conduct of the proceeding, rather  ;

than the correctness of the Board's reading of the Commission's instructions. J LILCO states that its anticipation of being unable to obtain from Interveners information needed to determine their likely "best-effort" )

response in a Shoreham emergency led LILCO to structure its motion for i

summary disposition around the concept of capabilities. Motion at 6-7.

However, it was not an error for the Board to conclude that a l

l demonstration of capabliities alone might not permit a predictive finding of .

reasonable assurance. See, September 17, 1987 Memorandum and Order, l

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at 44-45. The Board vlewed government capabilities to be material facts, j and to the extent the facts asserted by LILCO were uncontroverted,- they have been deemed established. Id. at 28. However, even if the Board '.

l was in error in accepting certain of the facts as stated in the Intervenor affidavits --- particularly those which . state, contrary to .the required assumption made in CLI-86-13, that Interveners will not use the LILCO Plan (see id. , at 28-29, 30-31) -- the Board was nevertheless correct in determining that it could not answer the questions posed by CLl-86-13 based on the record before it alone. Id. , at 44-45'.

Further, with one exception, 2_/ reconsideration of the September 17, 1987 decision on summary disposition is not necessary in order for the Board to further address the matters raised in LILCO's Motion. 3_/ The l

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. proper interpretation of CLl-86-13 as it relates to the scope" of the inquiry and to Applicant's burden of proof are still open matters., The Board's October 8,1987 Memorandum to the Parties affords LILCO and the 'i other parties an opportunity to address the extent to which Interveners As the Staff argued in its response to LILCO's motion for summary

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disposition of Contention EP 92, the Board has already found that  ;

the LlLCO Plan for interdiction of foodstuffs can be implemented without mandatory authority. As a result, summary disposition of Contention EP 7 is warranted.

'"3/ LILCO's arguments concerning the Board's interpretation of Cuomo ,

v. LI LCO , Consol. index No. 84-4615 (N.Y. Sup. Ct., Feb. 25, i 1985), alteration of plant-generated emergency classifications, and I availability of fuel for stranded motorists , do not provide the answers to the Commission's questions concerning the impact of an ad hoc response and do not warrant granting the motion. However, I tfiese matters can be further addressed by LlLCO in response to the Board's October 8 Memorandum. LILCO's request that the parties address, by October 16, 1987, the issues to be heard and propose a '

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schedule leading to hearing has been superseded by the directions in d '

the Board's October 8,1987 Memorandum to the Parties.

.. can, consistent with CLI-86-13, ~ successfully oppose a finding favorable to LILCO based simply on_ their assertion that under no circumstances would the local governments use the LILCO Plan.

CLi-86-13 requires the Board and the parties to proceed from the premise 'that New York State and Suffolk County would use the' LILCO Plan, albeit on an a_d hoc, "bes t-e f fort ," basis. While the Board's September 17, 1987 decision is not entirely clear on whether the Board reads CLl-86-13 in this manner, the issues appropriate for hearing are to be set out in responses to the Board's' October 8, 1987 Memorandum to the Parties. Rather than again considering the motion for summary disposition, expedition could be better achieved by designating issues to be heard and proceeding to a hearing on, those issues.

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Referral of the Board's September 17, 1987 Memorandum and Order is B.

not Warranted Section 2.730(f) of the Rules of Practice provides that When in the judgement of the presiding officer prompt decision is necessary to prevent detriment to the pub!!c interest or unusual delay or expense, the j presiding officer may refer the ruling promptly to the j Commission. . .

i The Appeal Board has stated that referral of an interlocutory ruling is i accepted only where there (.xists a potential of truly exceptional delay or expense or a compelling public interest dictating immediate appellate attention. Duke Power Company (Catawba Nuclear Power Station, Units 1 -

and 2), ALAB-768,19 NRC 988, 992-993 (1984). Referral by this Board should not be made unless It is clear that the Appeal Board's standard is met. l f ,

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.. As argued in-lthe previous section, the Licensing Board did not, in denying summary disposition of Contentions EP 1-10, fully consider the  !

Issues raised in Applicant's Motion regarding the scope. of issues and .

1 burden of proof in the realism phase of this proceeding. The Licensing I Board has asked for fu!!cr-treatment of these matters in responses to the l

Board's October 8, 1987 Memorandum. As a result, the public Interest does not require referral, nor will unusual delay and expense follow Board denial of the pending Motion. Referral . at this time would be premature, and therefore is unwarranted.'

111. CONCLUSION LILCO's Motion for reconsideration, and alternatively for referral, should be denied.

Respectfully submitted, George E. Johnson Counsel for NRC Staff Dated at Bethesda, Maryland this 20th day of October,1987 1

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UNITED STATES OF AMERICA. g7 g 3 g g NUCLEAR PEGULATORY COMMISSION .,

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. LFFICE OF SECRC1;ay j BEFORE THE ATOMIC SAFETY AND LICENSING BU%hNC In< the Viatter of )

) .J LONG. ISLAND LIGHTING COMPANY ) Docket No. 50-322-O L-03

) (Emergency Planning)-

(Shoreham Nuclear Power Station, )

Unit 1) )

CERTIFICATE OF SERVICE-I hereby certify that copies of "NRC STAFF . RESPONSE TO LILCO MOTION- FO R RECONSIDERATION AND REFERRAL OF THE BOARD'S RULING ON

SUMMARY

DISPOSITION OF THE REALISM ISSUE" in the above-captioned proceeding have been served on. the following by deposit in: the United States . mail, first class or, as . Indicated by an asterisk , through deposit in the Nuclear .

Regulatory Commission's internal mall system, this 20th day 'of October 1987.

Morton B. Margulies, Chairman

• Joel Blau, Esq.

Administrative Judge - Director, Utility intervention Atomic Safety.and Licensing Board Suite 1020

'U.S. Nuclear Regulatory Commission 99 Washington Avenue

. Washington, DC 20555 Albany, NY 12210 Jerry R. Kilne* Fabian G. Palomino, Esq.

Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 Frederick J. Shon* Jonathan D. Feinberg, Esq.

Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service l U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, DC 20555 Albany, NY 12223 Philip' McIntire W. Taylor Reveley 111, Esq.

l. Federal Emergency Management Donald P. Irwin, Esq.

l Agency Hunton & Williams L 26 Federal Plaza 707 East Main Street ,

I Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212

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l Douglas J. Hynes, Councilman Town Board of Oyster Bay l Town Hall  !

Oyster- Bay, New York 11771 l I

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3" l Stephen.' B. L Latham, Esq. - Herbert H. Brown, Esq.'

Twomey, Latham & Shea. - Lawrence Coe Lanpher,- Esq.

Attorneys at Law .

Karla J. Letsche,' Esq.-. l 133 West Second Street . Kirkpatrick's Lockhart l

( Riverhead , NY = 11901. _ South: Lobby - 9th Floor

- 1800 M Street,: NW l Atomic Safety and Licensing Washington, DC - 20036-5891  ;

Board Panel

• U.S. Nuclear Regulatory Commission Jay l Dunkleberger Washington, DC 20555 New York State Energy Office

- Atomic Safety and Licensing Agency Building 2'  !

Appeal Board. Panel * - Empire State Plaza l U.S. Nuclear Regulatory Commission. Albany, NY 12223 i

~ Washington, DC 20555 i Spence W. . Perry, Esq. 1 Martin Bradley Ashare, Esq. . General Counsel

- Suffolk County Attorney Federal-Eniergency Management

' H. Lee Dennison Building - Agency ,

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Veteran's Memorial Highway 500 C Street,.' SW Hauppauge, NY 11788 Washington, DC 20472 j l

Dr. Monroe Schneider Robert Abrams, Esq.  !

North Shore Committee Attorney General of the State P.O. Box 231: of New' York Wading River, .NY. 11792 . Attn : Peter. Blenstock, Esq. ~

6 Department of Law ~

Ms. Nora Bredes . State of New York .!

Shoreham Opponents Coalition Two World Trade Center 195 East Main Street . Room 46-14 Smithtown, NY .11787 New York, NY 10047 Anthony F. Earley, Jr. ' Wi!Ilam R. Cumming, Esq.

~ General Counsel Office of' General Counsel Long Island Lighting Company Federal' Emergency Management 175. East Old Country Road. Agency Hicksville, NY 11801 500 C Street, SW Washington, DC 20472 Dr. Robert Hoffman ,

Long Island Coalition for Safe Docketing and Service Section* '

Living Office of the Secretary P.O. Box -1355 U.S. Nuclear Regulatory Commission Massapequa, NY 11758 Washington, DC 20555 j

' Mary M. Gundrum, Esq. Barbara Newman New York State Department of Law Director, Environmental Health 1 120 Broadway - Coalition for Safe Living ~'

i 3rd Floor, Room 3-116 Box 944 New York, NY 10271 Huntington, New York 11743 ,

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/ George JE. Jot 4 son Counsel for NRC Staff

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