ML20236P898

Brief of Suffolk County,State of Ny & Town of Southampton on Effect of Commission 871029 Rule on CLI-86-13 Remand Proceeding.* Brief Suppls Govts 871030 Response to Board 871008 Memorandum to Parties.W/Certificate of Svc

ML20236P898
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/17/1987
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
References
CON-#487-4839 CLI-86-13, OL-3, NUDOCS 8711190060
Download: ML20236P898 (12)

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00CKETED l USNRC November 1-7, 1987

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'87 MOV 17 P4 :56 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION [0CFi 3 ERAND:

fN' Before the Atomic Safety and Licensino Board

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

BRIEF OF SUFFOLK COUNTY, THE STATE OF NEW YORK AND THE TOWN OF SOUTHAMPTON ON THE EFFECT OF THE COMMISSION'S OCTOBER 29, 1987 RULE ON THE CLI-86-13 REMAND PROCEEDING l l

In accordance with the " Proposed Joint Briefing Schedule on Realism Issues Pursuant to the Board's October 30, 1987 Order,"

which was filed on behalf of all parties on November 6, 1987 and l

confirmed in the Board's Order of November 9, 1987, Suffolk County, the State of New York, and the Town of Southampton (the

" Governments") submit this brief to address the effect on the CLI-86-13 remand of the rule amendment adopted by the Commission on October 29, 1987. See 52 Fed. Reg. 42078 (Nov. 3, 1987). Our views on this subject supplement the Governments' October 30, 1987 " Response to Board's Memorandum to Parties of October 8, 1987."l/

1/ We do not address herein the effect, if any, of the Commission's new rule upon matters at issue in this proceeding (footnote continued) 8711190060 871117 S O) i PDR ADOCK05000g2

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- 1 First, as a threshold matter, the Governments submit that I the Commission's newly adopted amendments to 10 CFR S 50.47(c)(1) i l

and Appendix E, 5 IV.F, could not be applied in this proceeding, if it is contemplated that the CLI-86-13 remand is to begin in i the near future. As the Commission's Regulatory Analysis of the 1

. amendments stated, although the rule should become effective 30 days after publication in the Federal Register (i.e., December 3, l 1987):

1 (implementation will involve cooperation  !

with FEMA and the development of FEMA /NRC criteria for review of utility plans may be required before the rule is applied to specific-cases.

52 Fed. Reg. 42087. Egg also 52 Fed. Reg. 42086 (" FEMA will need i

to devote resources to develop criteria for review of utility l

plans and/or to review the plans-on a case-by-case basis").

Thus, although it is intended that the rule will become  !

technically " effective" on December 3, 1987, it could not actually-be applied in this or any other ongoing proceeding prior to the development by FEMA of review criteria necessary to govern i

implementation of the new rule in specific cases. In the I Governments' view, public notice of FEMA's intention to

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l (footnote continued from previous page) ]

other than Contentions 1-10, which were the subject of CLI-86-13. '

Pursuant to the parties' Joint Briefing Schedule, the Governments also do not address in this submission the views of LILCO and the NRC Staff concerning the CLI-86-13 remand which were expressed in their October 30 filings. We will address those views in a reply to be filed on November 24, 1987.

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.4 promulgate such review criteria, and public comment upon whatever criteria are proposed, would be required before the Commission's new rule could lawfully be implemented. To the Governments' knowledge, however, there has been no public notice to date of FEMA's intention to promulgate such criteria, nor have any such proposed criteria been made available for public comment. This threshold issue of the applicability of the new rule in the absence of standards or criteria would have to be addressed and resolved prior to proceeding on the CLI-86-13 remand under the auspices of the new rule.

A second threshold issue concerning the applicability of the Commission's new rule to this proceeding is whether LILCO in fact wishes to proceed under the newly-amended Section 50.47(c)(1).

According to the Commission's new version of that section, it is up to an applicant to decide if it wishes to attempt to make the demonstrations required under the new rule in pursuing the issuance of a license. Here, should LILCO decide that it wishes to proceed in the CLI-86-13 remand under the new rule, LILCO would need to: (1) acknowledge that it has failed to comply with the Section 50.47(b) standards which underlie Contentions 1-10; (2) assert that its lack of compliance with each of the Section 1

50.47(b) requirements results wholly or substantially from the l decision by New York State and Suffolk County not to adopt or l implement an emergency plan for Shoreham; and (3) satisfy the l l

separate criteria set forth in subparts (i), (ii), and (iii) of i l

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the new rule. LILCO would also have'to: (1) identify which

) version of its often-revised Plan it intends to rely upon in proceeding under the new rule and provide copies of such to the Board and parties; and (2) specify its bases for believing it can satisfy subparts (i), (ii) and (iii) of the new rule, so that the Governments could submit contentions to supplement Contentions 1-10 as necessary and appropriate. LILCO's decision and its submission of the necessary information would have to precede the beginning of the CLI-86-13 remand under the new rule.

Assuming for purposes of this brief that LILCO does wish to pursue the CLI-86-13 remand under the Commission's new rule, and assuming, further, that it is ultimately determined that it would be proper or possible for LILCO to do so in the absence of any pre-established criteria for reviewing a utility plan, the scope of inquiry in such a proceeding on Contentions 1-10 would not be substantially different from that already discussed in the Governments' Response of October 30. Of course, there would need to be additional contentions (followed by discovery and testimony) concerning LILCO's satisfaction of the requirements specified in subparts (1), (ii), and (iii) of the new rule, based upon how LILCO proposes to satisfy those requirements.2/ But, as to the issues presented by the already admitted Contentions 1-10, the new rule has essentially no impact.

2/ The Commission's discussion of the new rule, and the rule itself, make clear that there must be case-by-case adjudication of the issues identified in subparts (i), (ii), and (iii). Egg, e.a., 52 Fed. Reg. 42084, 42086.  !

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.s. l, Thus,.asfwe stated in our October 30 Response, the general

) scope of the CLI-86-13 remand proceeding remains as previously ' '

i identified by the Board: "what would be:the: nature of an ad hoc, )

1 "best efforts" governmental response'to a radiological emergency, t

l at Shoreham, and whether there is reasonable assurance that such a response could and would be adequate to protect the public." .l Egg Governments' October 30 Response, at 4. ,i l

1 Specifically, the issues raised by Contentions'l-10,

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l including whether various essential elements of an emergency I response could and would be adequately implemented during a Shoreham emergency, as set forth in the cited subsections of Section 50.47(b), are unchanged by the new rule.3/ The Commission's assumption of a "best efforts" governmental response in CLI-86-13 is unchanged by the new rule.d/ The questions 1

involved in determining what would be the nature of an ad hog, "best efforts" governmental response to a Shoreham emergency, as discussed in the Governments' October 30 Response and the Board's 3/ Indeed, the new rule expressly states that a " utility plan will be evaluated against the same planning standards applicable i to a state or local plan, as listed in paragraph (b) of this I section [50.47]." 52 Fed. Reg. 42086.

A/ The new rule states:

In making its determination on the adequacy of ,

a utility plan, the NRC will recognize . . . l that in an actual emergency, state and local I government afficials will exercise their best efforts to protect the health and safety of-the public.

52 Fed. Reg. 42086.

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.i September 17,.1987 Memorandum and Order, are unchanged by the new rule.1/ And, the ultimate standard for licensing -- whether the Board can find reasonable assurance that adequate protective measures can and will be taken -- is also unchanged by the new rule.5/'

LILCO can be expected to argue, however, that the new rule should somehow change the Board's decision concerning the nature l

of an ad hoc, "best efforts" governmental response to a Shoreham emergency set forth in its September 17, 1987 Memorandum and Order. Indeed, in its November 6 "Brief on 25% Power Questions" )

(at pages 10-11), after noting that this Board had concluded that 1

it could nat assume that New York State or Suffolk County would 1 implement the LILCO Plan or act in partnership with LILCO in the ,

l event of a Shoreham emergency, LILCO asserted that the rule had mooted this Board's determination. LILCO relied upon the rule's provision that 1/ The Commission's discussion of the new rule expressly provides that the rule " leaves it to the Licensing Board to judge what form the 'best efforts' of state and local officials would take . . . , " emphasizing that such judgments are to be made on a case-by-case basis. 52 Fed. Reg. 42085.

5/ Thus, the new rule states that "the applicant must demonstrate I that . . . adequate protective measures can and will be taken in l the event of an emergency," in order for the NRC to make the l finding required under subpart (iii).of the new rule, that "[t]he l applicant's emergency plan provides reasonable assurance that public health and safety is not endangered by operation of the facility concerned." 52 Fed. Reg. 42086.

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it mav-bel oresumed tNaM in the~eventLof.and actual-radiological:.emergencyMtate: and localLof ficials' j

.would generally' follow the{utillty plan,

-w 52: Fed. Reg. 42086.($mphasis.added).:

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.oEJA This?LILCO" assertion is.without basis and must'be rejected.

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4; as already.noted, Ltids clear ' f rom the new rule and the

3, K First,

.r oL gN(.c ..,; '&plCommission.'s discussion'of it that'it is left to individual Ih hLicending Boards to'judgeh on i case-by-case b' asis,Ewhat' form the i' . , . . s

[9ffp Jgii,h.qn, "bestieff' orts",respdnse of the particularl governments J

V Qfr '4%i;nv;olved wouldltake , based upon.the. facts'and evidence presented -

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Tj .l;dnjeachl.caseg,_'This'iscompletelyconsistentwiththeBoard's

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+. September 17 Memorandundand Order. Furthermore, contrary to 1: ' 3, ED~ '

$1LCO's-suggestion in its.recent.25% Power Brief, the.

.o hf- 9 presdmption" mentioned in the new rule about the nature of an ad A'

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, 6.h_qq g' governmental response is expressly ootional, not mandatory;'it

-9 r(:is one that a Board "may" -- or "may not" -- adopt.

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.I 3 In this case, the Board has already addressed the question of whether, based on the facts and evidence before it, New York State m'Q m or Suffolk County would implement the LILCO Plan. Based on the uncontroverted sworn statements of the actual responsible State and Nunty' officials,l/ the Board found that it could p_qt, adopt a  !

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presumption much as the one suggested as an option in the new 7,/ Sag Affidav ts of Mario M. Cuomo, Governor of the State of Nen: York, and Michtel A. LoGrande, County Executive of Suffolk l

County, New York, attached to the Governments' May 11, 1987 Ansser to "LILCO's Second Renewed Motion for Summary Disposition of the ' Legal Authority' Issues (Contentions EP l-10)."

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' rule. Egg,.e.o., September 17 Memorandum and Order, at 26-27.

..Thus,.thef" guidance" contained in the:new: rule-with respect'to the.

willingness of State and local government. officials-to follow'a.

utility / plan is simply.not' applicable-in this case, in: light of~

the. facts.and' evidence before the Board.8/ Stated somewhat-

' differently,.the Commission's " guidance"'may provide a relevant option for.other case-by-case adjudication; 'n i this case, however,-  !

.i the Board has ruled, consistent with the new rule, in the only.way possible given the facts ~and' evidence before it.

l Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge,.New York 11788 Lawrence-Coe.Lanpher Karla J. Letsche Michael S. Miller Kirkpatrick & Lockhart 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County 8/ According to the Commission, the new rule is only intended to provide generic guidance; it is, therefore, only of general applicability and effect. In short, the rule was not adopted specifically for the Shoreham (or Seabrook) proceeding. 52 Fed.

Reg. 42081.

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!s 3, . Fabian.G. Palomino N

i

. Special Counsel to the Governo'r.

of :the15 tate of New. York . '

Executive Chamber,. Room 229 -

i Capitol Building -

Albany, New York 12224 1

Richard:J. Zahnleuter '

Deputy-:Special-Counsel to the Governor of'the State of New. York'

, Execut'ive Chamber-Room Number 229 I Capitol Building 1 Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State-of New York Stephen B. .Latham N

Twomey, Latham & Shea P.O. Box 398

33. West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton

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Q 00CHETED USNRC November 17, 1987 w/ Nm/17 P4 36

{

UNITED STATES OF AMERICA '

NUCLEAR REGULATORY COMMISSION f0CXfik__

BRANCH N_ kfh !

Before the Atomic Safety and Licensino Board '

l

) (

In the Matter of )  !

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) ) 4 CERTIFICATE OF SERVICE 1 I hereby certify that copies of BRIEF OF SUFFOLK COUNTY, THE STATE OF NEW YORK, AND THE TOWN OF SOUTHAMPTON ON THE EFFECT OF  !

THE COMMISSION'S OCTOBER 29, 1987 RULE ON THE CLI-86-13 REMAND PROCEEDING have been served on the following this 17th day of November, 1987 by U.S. mail, first class, except as otherwise noted.

James P. Gleason, 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 Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry R. Kline* William R. Cumming, Esq.

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 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. 229 707 East Main Street j

State Capitol Richmond, Virginia 23212 Albany, New York 12224

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

L 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 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 .

i

'Shoreham Nuclear Power Station 33 West Second Street.

North Country Road Riverhead, New York '11901 Wading' River, New York 11792 Ms.nNora 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-

"MHS 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 .' George E. Johnson, Esq.*

New York State Energy Office Edwin J. Reis, Esq.

Agency Building 2 U.S Nuclear Regulatory Comm.

Empire. State Plaza Office of General Counsel Albany, New York 12223 Washington, D.C. 20555 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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Douglas J. Hynes, Councilman-Town Board of Oyster Bay

. Town Hall Oyster Bay, New York 11771.

Michael S. Miller KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington,.D.C. 20036-5891

• : Via Hand Delivery

• Via Telecopy

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