ML20236T140
| ML20236T140 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/17/1987 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#487-4918 OL-3, NUDOCS 8712010040 | |
| Download: ML20236T140 (43) | |
Text
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yf/f LILCO, November 17,1987 t
DOCKETEC*
USNRC 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g
g
.g 0FFICE CF EECE[lt.r v l
Before the Atomic Safety and Licensing Board 00CKEilNG 4 SEWICf BRANCH J
In the Matter of
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j LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3 I
) (Emergency Planning)
(Shoreham Nuclear Power Station,
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l Unit 1)
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q LILCO'S SUPPLEMENTAL BRIEF ON THE NEW EMERGENCY PLANNING RULE l
Here, in response to the Board's Orders of October 30 and November 9,1987, is LILCO's supplemental brief addressing the effect of the amendment to the emergency planning regulations promulgated October 29,1987. That amendment (hereinaf ter "new f
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rule") provides " criteria for the evaluation... of utility prepared emergency plans in j
situations in which state and/or local governments decline to partiefpate further in I
emergency planning." 52 Fed. Reg. 42,078 col. 3 (Nov. 3,1987). This brief supplements l
l LILCO's Views on the Issues and Schedule in the Realism Remand (Oct. 30,1987).
1 LILCO argues below that the new rule, once it is applied to the facts of this j
case, provides that there are no legal-authority-related issues lef t that require eviden-tiary hearings and compels the conclusion that the LILCO plan satisfies NRC require-ments. Accordingly, within a few days LILCO will file a motion for summary disposi-l l
l tion of the legal authority contentions in light of the new rule. This brief anticipates I
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that motion.
L The New Rule On October 29, 1987, by unanimous vote, the Commission approved an amend-ment to 10 CFR S 50.47(c)(1). The regulation, as amended, now reads as follows:
8712010040 871117 PDR ADOCK 05000322
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(c)(1).. Failure' to meet th'e; applicable. standards set i
forth in paragrr.ph (b) of this section may result in the Com -
mission declining to issue'an' operating license; however, the i
applicant w!il have an opportunity to demonstrate to'the sat-i
-isfaction of the Commission that deficiencies in the plans are' not significant for the plant in question, that adequate inter-im compensating actions have been or will be taken promptly, -
s or that there are other compelling reasons to permit plant op- -
i erations. Where an applicant for an operating license asserts.
that its inability to demonstrate compliance with the require- -
I ments of paragraph (b) of. this section results wholly or sub -
stantially from the decision of state and/or local governments l
not to participate furtheriin emergency planning,'an op-
~i erating license may be issued if the applicant demonstrates to -
i the Commission's satisfaction that:
'j (1). The applicant's inability to comply with the re- -
quirements of paragraph (b)is wholly or substantially the re ~
sult of the.non participation of state and/or local govern-ments.
(11): The applicant has made a sustained,' good faith ef-fort to secure and retain the participation of the pertinent 1
state and/or local governmental authorities, including the fur.
nishing of copies of its eer-rgency plan.
(iii) The applicant's emergency plan provides reason-able assurance that public health and safety is not endangered by operation of the facility concerned..To make that finding, the applicant must demonstrate that, as outlined below,- ade -
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quate protective measures can'and will be taken in the event-of an emergency. A utility plan will be evaluated against the-
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same planning standards applicable to a state or local plan, as listed in paragraph (b) of this section, with due' allowance made both for -
(A) Those elem&nts for which state and/or local non-participation makes compliance infeasible and I
(B) The utility's measures designed to compensate for any deficiencies resulting from state and/or local non-participation.
1 In making its determination on the adequacy of a utility plan,:
aj the NRC will recognize the reality that in an actual emergen-H cy, state and local government officials will exercise their.
best efforts to protect the health and safety of the puolic.
The NRC will determine the adequacy of that expected re-sponse, in combination.with~ the utility's' compensating mea-j suras, on a case-by-case basis, subject to the following guld-anco.
In addressing the circumstance where applicant's
'l inability to comply.with the requirements of paragraph.(b) of.
this section is wholly or substantially the result of l
&_m___
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non participation of state and/or local governments, it may be presumed that in the event of an actual radiological emer-gency state and local officials would generally follow the util-ity plan. However, this presumption may be rebutted by, for i
example, a good faith and timely proffer of an adequate and
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feasible state and/or local radiological emergency plan that i
would in f act be relied upon in a radiological emergency.
10 CFR S 50.47(c)(1),52 Fed. Reg. 42,078, 42,085-86 (Nov. 3,1987).
Thus, the new rule states that "it may be presumed that in the event of an actual radiological emergency state and local officials would generally follow the utility i
plan."M 10 CFR S 50.47(c)(1)(111). This presumption must guide the Board in deciding the remaining issues in this case.
The new rule "provides for no diminution of pubile protection from what was provided under existing regulations." 52 Fed. Reg. at 42,081 col.1 (Nov. 3,1987). But l
it _do_es affect the issues identified in the Board's September 17 Memorandum and Order.
The Board, when it denied summary disposition of the legal authority issues, did not take the new rule into account:
Applicanc's current position on CLI-86-13 bears a re-semblance to the new emergency planning rule that the Com-mission proposed on March 6, 1987 (52 Fed. Reg. 6980) that has not been acted upon as yet. The rule would permit the is-suance of a full power operating license, notwithstanding l
noncompliance by the Applicant with specified regulatory re-quirements, where it arises from a lack of participation in the development or implementation of offsite emergency plan-ning by a State or local government, and if the Applicant 1
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The rule also restates the "best effort" principle recognized in CL1-86-13. In l
" making its determination on the adequacy of the utility plan, the NRC will recognize the reality that in an actual emergency, state and local government of ficials will exer-cise their best efforts to protect the health and safety of the public."
10 CFR S 50.47(c)(1)(iii). This provision of the new rule, of course, is undeniable and, by itself, uncontroversial. The "best efforts" presumption has never been disputed by anyone.
For example, in their May 11,1987, arswer to LILCO's motion for summary disposition, the Interveners said that they are " sovereign entities, with... the obligation to act as they see fit to protect and further the interests of their citizens" and that they "would in the future... fulfill that obligation to the best of their abilities...." Answer of Suffolk County, the State of New York and the Town of Southampton to "LILCO's Sec-ond Renewed Motion for Summary Disposition of the ' Legal Authority' Issues (Conten-tions EP 1-10)," at 63 (May 11,1987).
demonstrates to the Commission's satisfaction, among other things, that the noncompliance can be remedied, or adequate-ly compensated for, by reasonable State or local government cooperation. The proposed rule is different from the law of the case laid down in CLI-86-13 and cannot be relied upon in support of Applicant's motion.
Memorandum and Order (Ruling on Applicant's Motion of October 5,1987 for Reconsid-eration and Other Relief), at 10-11 (Oct. 29,1987). The new rule has by now been pro-mulgated and will likely be in effect by the time the Board rules on this and related pleadings. The new rule must now be taken into account. In particular, it makes clear that the Board's earlier reliance on Intervenor statements that they would not use the LILCO plan must be changed.
J IL The Burden of Proof j
In its Memorandum and Order (Ruling on Applicant's Motion of October 5,1987 for Reconsideration and Other Relief), dated October 29, 1987, the Board invited the j
parties to address the burden of proof on the realism issue:
At this juncture, the Board has not ruled on the burden of proof on this matter. If LILCO wants to raise the point it can do so as Staff suggests as part of discussing the issues for the upcoming proceeding as called for in the Board's Memorandam To the Parties of October 8,1987.
Ld., at 11. The burden of proof is important in this case because, as will be seen below, there are no issues to be tried, in light of the new rule, because the Interveners have not carried the burden of going forward.
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A.
_ Traditional Burden in NRC Law Even without the new rule, the Interveners have the burden of going forward.
True, the ultimate burden of persuasion in NRC proceedings is on the applicant. 10 C.F.R. 5 2.732. But an Intervenor also has a responsibility to provide some measure of evidence to support his contentions. The Intervenor's burden of going forward is long established:
l The ultimate burden of proof on the question of whether the permit or license should be issued is, of course, upon the ap-plicant. But where... one of the other parties contends that, for a specific reason... the permit or license should be i
denied, the party has the burden of going forward with evi-dence to buttress that contention. Once he has introduced sufficient evidence to establish a prima facie case, the burden then shif ts to the Applicant, who, as part of his overall bur-den of proof, must provide a sufficient rebuttal to satisfy the Board that it should reject the contention as a basis for denial of the permit or license.
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123,6 AEC 331,345 (1973) 4 (emphasis in original), reversed sub nom. Aeschliman v. NRC,547 F.2d 622, 628 (D.C.
Cir.1976), reversed and remanded sub nom. Vermont Yankee Power Corp. v. NRC, 435 i
U.S. 519, 553-54 (1978).
This " threshold test" was repudiated by the D.C. Court of Appeals in the j
l Aeschliman case, cited above, but explicitly rehabilitated two years later in Vermont Yankee. The Appeal Board, in the wake of Vermont Yankee, has returned to the
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" threshold" test as the proper way of defining an Intervenor's burden of going forward, j
I See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
ALAB-471, T NRC 477, 488, 489 n.8 (1978), reviewed as to other matters, CLI-78-14, 7 i
NRC 952 (1978); Louisiana Power and Light Company (Waterford Steam Electric Sta-j l
tion, Unit 3), ALAB-732,17 NRC 1076,1093 (1983). As the Appeal Board has pointed out, another way to pose the " threshold" test is that it requires an Intervenor to "come forward with evidence, sufficient to require reasonable minds to inquire further, to in-sure that its contentions are explored at the hearing " Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613,12 NRC 317, l
l 340 (1980).
In this case the litigable issues identiflad by the Board in its September 17, 1987 Memorandum and Order go to information that the Interveners, and not LILCO, possess:
"what the Interveners' response will be."
Memorandum and Order, at 27 (Sept.17,
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l 1987). As the Board said, "[n]o one has more knowledge than the State and County on how they would respond to an emergency at Shoreham." Ld., at 26. And the Board has already said that it expects the Interveners to be " fully forthcoming so that the facts will be developed." [d., at 29. Hence here, even more than in the usual NRC case, In-tervenors should have the burden of going forward.
B.
Presumption Under the New Rule i
In addition to the traditional black-letter law about the burden of going forward, which would apply regardless of the new rule, the new NRC rule, as noted above, cre-ates an explicit presumption relevant to Interveners' statements of intentions:
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[1]t may be presumed that in the event of an actual ra-diological emergency state and local officials would generally l
follow the utility plan.
4 10 C.F.R. 50.47(c)(1)(iii),52 Fed. Reg, at 42,086 col. 2 (Nov 3,1987).
This provision is based on the Commission's finding in CLI-86-13, strorigly sup-1 ported by the rulemaking record, that "a planned response is preferable to an ad hoc one." 52 Fed. Reg. 42,082 col. 2 (Nov. 3,1987). As will be shown below, this principle (that a plan is better than an ad hoc response) is accepted by everyone in this case.
i C.
The Interveners Have Confirmed the Basis for the Presumption The presumption that the presently uncooperative governments would follow generally the utility plan in a real emergency is based on the fact that response ac-cording to a plan is better for the public than an aj;l hoc response. See 52 Fed. Reg.
I 42,082 col. 2 (Nov. 3,1987); CLI-86-13, 24 NRC 22, 31 (1986). The Interveners have supported this statement many times, in particular, the>J have argued countless times that an ajj hoc response is inadequate, and they have praised the concept of emergency planning (as opposed to real plans, which for Shoreham' trey always find inadequate) many times.
For example, pages 75-82 of their Mhy. O,1887 answer to 1.ILCO's (l'
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summary disposition motion argue at some length that federal regulations are based on the experience that an ad hoc response by governments is undesirable.
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Likewise, New York State policy favors emergency planning rather than an aLd i
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hoc response. In 1978 New York adopted N.Y. Executive Law Chapter 640 (Article 2-B, i
State and Local Natural and Man-Made Disaster Preparedness, SS20-29d of the New q
1 York Executive Law). The Legislature made the following finding:
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l The legislature further finds that it must provide for prepara-tions to prevent, meet, defend a!ainst and recover from, dan-gers and problems arising from ;a wide variety of) emergen-l cies with the least possible interference with the existing l
division of the powers of the government.
The Legislature finds that a joint effort, public and pri-vate, is needed to mobilize the resources of individuals, busi-
-ness, labor, agriculture,'and government at every level-fed-eral, state and local - for effective organization to prepare for and meet natural and man-made disasters of all kinds.
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I The legislature finds that local disaster preparedness l
plans are essential in order to minimize potential disasters and their effects, provide for effective local responses when disasters occur and facilitate local recovery. The legislature further finds that local plans constitute an essential part of the statewide disaster preparedness program and that without local disaster planning, no state disaster program can be fully
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effective.
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" Historical Note," following N.Y. Exec. Law S 20 (McKinney 1982) (emphasis added).
Likewise. N. Y. Exec. Law Art. 2-B S 20.1.e makes it state policy that " state and local plans, organizational arrangements, and response capability required to execute the provisions of th!s article shall at all times be the most effective that current circum-i stances and existing recour&s allow."
N.Y. Exec. Law., Art. 2-B, S 20.1.e (McKinney 1982). Other provisions of Article 2-B could be cited to the same end. Article 2-B strongly supports the proposition that emergency planning is desirable, and that re-l sponse according to plan is better for the public than an ad hoc response.
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Suffolk County, too, has endorsed emergency punning, as opposed to ad hoc re-l sponse. For example:
The County's gc11 inlthis matter is to create a plan 1
that will asr,t.rrthe health and safety of its residents.. This-goal b best achieved through integrated planning.
l Suffolk County's Response to the Board's Inquiry with Eespect to Integrated Planning, at 2 (Aug. 20,1982). Similarly, Suficig County rsolutions demonsti atej that the County agrees that a planned response to an emergency is better than an ad hoc response. For i
l4 example,in Resolution No. 456-1982 EstabilshJng the Radiological Emergency Response f
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, ', Planning Policy of the County of Suffolk, the Suffolk County legislature expressed its intention to assure the "best possible emergency plan and preparedness" for the citizens of Suffolk County:
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. WHEREAS, County of Suffolk has the primary responsi-bility for the protection of its residents in the event of a ra-diological emergency at the Long Island Lighting Company's Shoreham Nuclear Power Station; and WHEREAS, Suffolk Csanty takes this responsibility se-riously and intends, through good f aith and sound planning ef-forts, to assure that the best possible emergency plan and preparedness are developed to protect the citizens of Suffolk County....
Suffo't County Resolution No. 450-1982 (dated May 18, 1982, approved by the Suffolk i
County Executive May 19, 1982). The County spent in excess of $500,000 to prepare
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the "best possible plan" for Suffolk County. Suffolk County Redution No. 111-1983.
Snfhbik County Executive Cohalan, who was in office when the County decided to op-l pwe emergency planning, wrote a report to the legislature datsd February.16,1983. In it, Mr. Cohalan reaffirmed the " duty of the County to prepare for emergendes":
By law, Suffolk County has an obligation to protect the l
health, welfare and safety of its citizens.... Thus, it is the duty of.the County to prepare for emergencies in an effort to avoid injury trtlife and property, s
1 Report of Suffolk County Executive Peter F.
Cohalan Concerning Radiological a
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Emelgency Preparedness in Suffolk County, at 1-2 (Feb.16,1983). Mr. Cohalan charac-terized the draf t plan prepared by the County's consultants as the "best possible plan for Suffolk County." I_d., at 3. Although the County ultimately re,jected this "best possi-l ble" plan, it old so on the grounds that, by the County's standards, the plan was inade-quate. At no time has Suffolk County denied the value of emergency planning or denied that a plan is better than no plan, Similarly, the Affidavit of Richard C. Roberts, Exhibit C to the " Answer of Suffolk County, the State of New York and the Town of Southampton to 'LILCO's Sec-ond Renewed Motion for Sammary Disposition of the " Legal Authority" Issues (Conten-
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l tions EP 1-10),"' served May 11, 1987, is a virtual paean to planning and preparedness.
For example, inspector Roberts says that in his opinion Suffolk County personnel could i,
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not adequately respond to an emergency without trah11ng. Affidavit of Richard C.
Roberts, at 214 (Sept. 25,1984). Mr. Roberts also says that even an " uncontrolled" I
1 evacuation should be " closely supported by trained and capable response personnel" and that the emergency response organization should have " traffic guides, tow trucks, ele."
Id., at 6113.
l In short, the State and County have admitted that a totally ad hoc response is in-i adequate. They have admitted that they would use their "best efforts" to respond to an 1
emergency. It follows that in a real emergency they would necessarily use the only al-l ternative to an ad hoc response that exists: the LILCO plan. The stateinents that the Interveners would rpqt use the LILCO plan are not only contrary to the new NRC regula-tion, they are contrary to the Interveners' own words and contrary to New York State policy.
D.
The Word " Generally" It is true that the new rule says that the presumption is that the authorities will
" generally" follow the utility plan. The word " generally" does not present a problem for I
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. LILCO, or raise a litigable issue,'in this case.' Only nine specific functions are at issue '
in this case.E Absent a timely, good-falth showing from the' Interveners precisely how.
they would depart from the plan in handling these fur.ctions, there is no issue for any-thing o'ther tham summary resolution.
- M. Application of thg_New Rule The presumption that the State and County would generally follow the LIL.CO plan, then, must be applied in this case. Given that presumption, no " legal authority" issues are lett to litigate.
A.
The Only Potential temuu: Are About Waether tne Intervanors Would Spoil ~
the Plan Despite their "Best Efforts"1 In light of the new rule, there are no litigable issues, for a very good reason: the LILCO plan is a complete plan, save for legal authority. It is a plan capable, physically, of accomplishing an emergency response totally without support from State or local governments. Contrary to former claitts by the Interveners, it is not a " mere paper plan." LILCO has provided not only a paper plan, but also the physical resoure_ s to ac-e complish an emergency response: LILCO has recruited and trained hundreds of emer-gency workers, arranged for buses and ambulances, bought radios and dosimeters, in-stalled sirens, recruited radio stations, provided decontamination facilities, and made -
all of the other physical arrangements necessary to conduct an emergency response.
This plan, developed and refined over the course of years, is prepared to respond to an emergency at Shoreham today, even if (as is assumed in Cuomo v. LILCO) the State and local governments should effectively vanish at the time of an accideret.E 2/
The ten original functions, corresponding to EP Contentions 1-10, are listed in CLI-86-13,24 NRC at 30-31. Function 3 (posting traffic signs)is no longer in issue.
F With or without the state and local governments, the federal government also provides a variety of services and functions in emergency preparedness. Under the (footnote continued)-
For Shoreham, then, there are two separate sets for resources of responding to a radiological emergency: the people and equipment in LERO and the enormous re-sources (in terms of expertise, manpower, and communications) that New York State and Suffolk County can bring to beat, even if applied in an Ed hoc fashion to Shoreham.
Thus, the suggestion that the public would be less well protected under a utility plan than under a governmental plan is unfounded; it is certainly not based on any evidenti-ary record.
The set of resources that has never been taken credit for in this proceeding (and still need not be counted except for legal authority) is the State and County. Undoubt-
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edly they could respond adequately to an emergency even without prior training specif-
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t ically on the LILCO plan; as is well known, unplanned evacuations take place fre-quently, and usually successfully.
And when the local jurisdiction is a County as prosperous and sophisticated as Suffolk County, with its large police force of 2,700 uni-formed men and women, and as prepared as New York State, with its three other nucle-ar sites already planned for, it is all the mcre likely that the governmental component of emergency response could be accomplished without specific prior training.
The plan on which LILCO relles, however, is the utility plan. And the LILCO utility plan, the record shows, is in most ways actually superior, not inferior, to govern-mental plans. The NRC Staff's own witness testified in this proceeding that the LILCO utility plan was the best offsite plan he had ever seen. Tr.15,226 (Sears).M Because of (footnote continued)
Federal Radiological Emergency Response Plan (FRERP) federal agencies coordinate in response to any radiological emergency. At Shoreham, in particular, the Department of Energy, through its Brookhaven National Laboratory (only six miles from the Shoreham plant), provides radiological monitoring and other expert help.
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And FEMA testified that the magnitude of its observation of the Shoreham exer-cise on February 13, 1986, was equal to or greater than that of other FEMA Region II exercises. Tr. 8476 (Exercise Proceeding) (Kowieski); see also Tr. 7633-35, 7645-46, 8491-92, 8515-16, 8533-34 (Kowieski).
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. the heat of the litigation in this proceeding, LILCO has been held to higher standards and required to prove more than any other sponsor of an emergency plan. No one else, for example, has been required to analyze traffic all the way to the reception centers.
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See Tr.18,847 (Hartgen),19,136 (Urbanik), 18,378-79 (Keller, Baldwin). No state or local government's training programs, communications networks, or callout rosters have been challenged in such flyspeck detail. LILCO's has, and has been found, despite every obstacle the State and County have been able to erect, to come through this liti-gation without irremediable fault. It is simply not true, and it is certainly not sup-ported by the record, that the LILCO plan is a second-best measure.
The only obstacle to meeting NRC regulations (leaving aside, as we may for pres-ent purposes, the handful of remaining undecided issues such as the emergency broad-cast system), is the lack of legal authority, an intangible resource that can be supplied at will by the State and County governments.N Therefore, since there is a complete l
plan that is fully capable of responding, except for legal authority, the decisionmaker is logically compelled to conclude that the only potential issues are whether the confer-ring of legal authority would somehow detract from the plan - that is, whether 'he adding of the State and County resources would damage the response and increase the hazard to the public, compared to the LILCO-only plan that has been litigated.
To be precise, the Interveners' burden of going forward includes two things:
1.
Specifically what would the response by Interveners in an emergency do to decrease. the effectiveness of the LILCO plan?
2.
Precisely how much harm would this cause to the pub-lic health and safety?
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LILCO recognizes that the Board has found the LILCO plan flawed on the grounds of lack of legal authority and lack of government participation. Our point is that these flaws are removed by application of the new rule to the existing record.
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4 The Interveners have not carried this burden; indeed they have tried to avoid it.E LILCO suggests, moreover, that it is too late for Interveners to meet this burden. The Board has already found that:
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New York has had ample opportunity to state affirmatively on this record what its intended actions would be in the event of an emergency; it has not done so i
PID,21 NRC at 883. Also, the new rule provides that the presumption of generally fol-lowing the utility plan may be rebutted by a " good faith and timely" proffer of an alter-i native. Any such proffer now would be untimely and, given both governments' adamant I
refusals in the past to describe their anticipated response in any except the most global I
terms, of dubious falth.II l
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B.
Why the Existing Record Is Sufficient LILCO's position that there are no litigable issues will be met with the argument I
that the new rule was not intended, by itself, to re. solve the Shoreham or Seabrook i
cases. The preamble to the rule says as much. 52 Fed. Reg. at 42,081 col.1-2. Simi-l l
larly, CLI-86-13, decided before the new rule, declined to grant summary disposition j
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and remanded the case for additional development of the record. But this does not mean that further litigation (" intensive and extensive," in the prediction of the outgo-ing Board chairman) is foreordained.
The reason is that the Commission did not undertake, either in deciding CLI l 13 or in promulgating the new rule, to analyze the existing record to see how far it went toward answering the outstanding questions. It simply set the new groundrules
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Nor have they specified in what respect their lack of preparation would so delay a response that the dose reductions would not be " generally comparable" to what might-be accomplished with government cooperation. See CLI-86-13,24 NRC 22,30 (1986).
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Indeed, the new rule calls for rebuttal, if at all, by a governmental plan "that would in fact be relied upon in a radiological emergency." Obviously, then, there can be no rebuttal of the presumption in this case.
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1 I and lef t it to the Board to apply them to the existing record, and to supplement it if necessary. The Board itself recognized this in its September 17 Memorandum and 1
Order-
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l Because the Commission ~ recognized that there are open questions pertaining to the realism argument and di-rected the taking of additional evidence where. necessary, j
does not, ipso facto, mean that the parties are guaranteM a j
full evidentiary hearing on the matters. Successful employ-i ment of 10 C.F.R. 2.749, the regulation governing summary disposition, can result in dispensing with the holding.of the hearing called for, but in order for this to.be accomplished '
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the regulatory requirements must be met.
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LILCO does not ask the Board to find that the new rule by itself resolves all the.
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remaining issues in this case. LILCO does not ask the Board to," assume" that a govern-mental best-effort response would be adequate under NRC regulations. LILCO asks i
I rather that the Board apply the new rule to the existing record, including the material facts attached to LILCO's summary disposition motion of March 20,1987, and admitted
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by Interveners, and draw the necessary conclusions.
4 C.
The New Rule miminates the Remaining lasues j
Virtually all the issues identified by the Board in its September 17,1987, Memo-randum and Order were based on the Interveners' claims that they would not follow the l
LILCO plan:
1 As we discussed previously, the "best effort" assumptions do I
not formulate a single response. They leave open to question j
how the Governments will respond and whether their re-i sponse will be adequate la fulfilling regulatory requirements.
I The scenario that Applicant presents as to what form Inter-venors' response would be during an emergency at Shoreham is unsupported by CLI-86-13, or otherwise in this record.
4 Further, Interveners have established by sufficiently convine-ing direct evidence, i.e., the affidavits of State and County officials, that the material facts Applicant claimed to be l
without dispute are in f act disputed and there exists a genuine -
Issue to be heard.
___m. _ _ _.. - _ _ _ _ _.. _. _ _ _. - -
At this stage of the proceeding, Interveners did not go beyond stating that that which Applicant described as their response was not what they would do. This tack was sufficient to meet the requirements of 10 C.F.R. 2.749 in regard to overcoming Applicant's motion.
Memorandum and Order, at 26, 27, 28-29 (Sept.17,1987).
In light of the new rule, it is no longer sufficient for Interveners to simply say that they would not follow the only existing plan. Such claims contradict the new rule and, under traditional NRC law, are a challenge to the regulations that may not be en-tertained by the Board.
V. Overarching Issues By examining the Board's September 17 Memorandum and Order LILCO perceives that there are several generic questions, each affecting several of the legal authority l
l 1ssues, in the Board's mind. The new rule makes it clear that the existing record an-l swers these questions.
A.
Who Will Be in Charre?
LILCO will call both the State and County promptly. In the ordinary case it will be the Suffolk County Commissioner of the Department of Fire, Rescue and Emergency Services (DFRES) who is in charge, since by law he is given that responsibility (Material O 48, 49). He was also assigned this duty in the "best possible" plan prepared by Facts PRC Voorhees, a County consultant:
1 The role of the :,uffolk County Department of Emergency Preparedness as lead agency in the coordination of a disaster response is detailed in this plan.
l 8/
" Material Facts" refer to the numbered Statements of Material Fact attached to LILCO's March 20 motion for summary disposition.
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I 1
PRC Voorhees, Suffolk County Radiological Emergency Response Plan (Working Draf t Report), at 1 (Nov.1982) (hereinaf ter "Voorhees plan"). (The Department of Emergency.
j l
Preparedness is now the DFRES.) In particular, the Voorhees plan provided as follows:
When a' radiological emergency occurs at Shoreham Nuclear Power Station, the command ar.d control functions rest with: -
The County Executive The Director of the Department of Emergency Preparedness Voorhees plan, at 12. Under the Voorhees plan, the County Executive would have had 1
strategic control, and the Director operational control. Id.
l As provided in State law and in the State plan, if the County is unable to act, the State will assume command-and-control functions. See N.Y. Exec. Law SS 21.f, 24.1, 28 (McKinney 1982).
The Director of the State Emergency OfficeE will assume command-and-control for the State (Material Fact 50). The State Commissioner of Health will advise him on protective actions (Material Fact 47).
.j B.
Will the State and County Be
)
Able to Use the Plan?
Given a physically adequate plan and a County and State with legal authority, the only possible questions are "will the governments use the plan?" and "can the gov-ernments use the plan?" The new rule presumptively answers the first question "yes."
But the Interveners have raised the issue whether they would be able to use the plan, even if they wanted to. They assert that they are unfamiliar with it, untrained in tsing it, and unable to find most of the copies they have been provided. The Board also addressed this issue:
9/
The State Emergency Management Office (SEMO) is the current name for the Office of Disaster Preparedness. Affidavit of James D. Papile, at 214.d, Att. 4 to An-swer of Suffolk County, the State of New York and the Town of Southampton to I
"LILCO's Second Renewed Motion for Summary Disposition of the ' Legal Authority' Is -
sues (Contentions EP 1-10)"(May 11,1987).
~~
- ! -.1 1
4 The issue of the familiarity of the State and County Govern-ments with the plan and how they will respond to a future ra-diological emergency is one which will be heard in any future.
hearing on remanded issues in this case.
Memorandum and Order, at 44 (Sept.17,1987).~-
Upon close examination ~ however, this issue is seen to be insubstantial. ' The affi-davits and arguments by the Interveners about their ignorance of the LILCO plan are all~-
based on the unstated premise that the State or County would have to implement the-plan without help. (The few isolated statements in the affidavits that the Interveners could not implement the ' plan "with ' or without ' LILCO's help" ~ are completely -
unsubstantiated.) But LERO stands ready to advise the governments at each step of the way. The participation of the NRC, DOE, and FEMA in the, response should also help overcome the State and local governments'self professed inability to function.
Moreover, as we have pointed out before, this question of inability to use the plan is one that demands specificity frotn the Interveners.' To take an example, there is.
no apparent reason why, with respect to Contention 5, they need familiarity with any-thing to tell LILCO to activate the sirens so that the public will know to tune in their.
radios for information. Nor is there any reason to believe a policeman could not look at the printed traffic control strategy for an intersection and direct the traffic in accor-dance with the diagram. It is not even clear why the County or State think their offi-cials would be unable to decide in light of information on dose projections whether the public should shelter or evacuate..(This is true both for State officials, who play 1
. command-and-control roles for six other licensed plants at three other sites, and for j
i County officials, who daily live with the o'perating reality of the 60 MWt reactor at l
Brookhaven.) Without specificity from the Interveners, there is simply no issue.
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l.
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. C.
Is It Illegal for the State and County to Use LERO Resources?
One argument that the Interveners may make is that Cuomo v. LILCO prohibits them from using LERO resources in an emergency. It is true that Cuomo v. LILCO i
holds that the state may not " delegate its police power." But the realism principle does not contemplate " delegating the police power."
It is true that the State could not legally give away the ultimate legal responsi-i bility for responding to an emergency. But nothing prevents the authorities from giving private parties permission to perform specific acts in an emergency. For example, it is l
simply not plausible that the Governor (for example) would be prohibited by law from l
calling LERO and asking it to sound the sirens. Likewise, LILCO believes the authori-l ties are fully empowered to permit private persons to direct traffic until the police ar-rive.
l As with the other potential " realism" issues, LILCO believes it is up to the Inter-venors to specify precisely what it is they claim they are forbidden by law to do. Since they have not done so, there are no litigable issues.
1 D.
Will the County and State Be Able to Use the LILCO Plan to Make Timely Decisions?
The making of key decisions by County and State officials is the only area in which there might be legitimate questions about the ability of the Interveners to re-I spond to an emergency. But when one analyzes these questions,in light of the existing record and the new rule, they are found to be no different from questions that can al-ways be raised under any plan: will the decisionmaker make the right decision in a par-ticular situation? No one can ever answer this question definitively in any NRC pro-l ceeding; no one is required to answer it under NRC regulations.
What LILCO can show, on the existing record, is " reasonable assurance" that ad-equate protective actions will be taken.
The Suffolk County Executive and the
1 1
i Commissioner of DEFRS would ordinarily have to decide whether the public should shelter or evacuate. They would have to use the same sort of data for this purpose that decisionmakers under aJ radiological plans use: recommendations from experts, plant conditions (EAL's), weather reports, computer projections of the plume, and field moni-toring reports.
As for recommendations from experts, the County officials could, if time were short, approve the recommendation from the onsite organization, as any government might have to do in an immediate General Emergency with no better information to go on. If anything, the recommendation of the utility has especially great weight, in a sit-uation like Shoreham's, where the local authorities are not planning and therefore have 1
no information of their own to rely on.
What makes the utility's recommendation even more likely to be accepted is that the NRC, the Department of Energy, and FEMA will all be involved in making it. Since the State and County are not planning, the advice and data from the federal govern-ment become part of the utility plan. Thus, if the Interveners were to say they would l
not rely on the utility's advice, they would be saying also that they would reject that of DOE, the NRC, and FEMA.
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But the Interveners are precluded from litigating the use of federal resources, I
because that was a " Phase I" issue. " Phase I" of this proceeding covered those emergen-1 cy planning issues that were capable of being addressed before Suffolk County complet-ed its own plan. It included all issues about the adequacy of LILCO's onsite plan, but j
i also such issues as the adequacy of the prompt notification system (that is, the sirens l
l and tone alerts) and LILCO's communications with the first line of authorities.
j i
Prehearing Conference Order (Phase ! -- Emergency Planning), slip op. at 2,11 (July 27, 1982) (unpublished). A number of Phase I contentions were dismissed with prejudice early in the proceeding, others were admitted.
See Supplemental Prehearing i
. l l
l l
Conference Order (Phase I - Emergency Planning), LBP-82-75,16 NRC 986 (1982).
Written testimony was filed October 12,1982. However, the Interveners, led by Suffolk l
County (New York State, though a party, was not then actively participating), refused to comply with the procedures ordered by the Board and were held to be in def ault.
Memorandum and Order, LBP-82-115,16 NRC 1923 (1982). As a result, the Phase I con-tentions were dismissed with prejudice. Ld.,16 NRC at 1936.
I Phase I Contention EP 3. " Federal Resources," alleged that "The LILCO [onsite) i i
plan falls to provide for incorporation of Federal response capabilities into the plan."
1 This was settled by agreement of LILCO, the NRC, Suffolk County, the Shoreham Oppo-nents Coalition, and the North Shore Committee. Based upon LILCO's agreement to amend the onsite plan to read as set forth in the agreement, Suffolk County found that -
this contention was resolved. Resolution of Suffolk County Contention EP 3 - Federal Resources (Oct. 12,1982), ff. Tr. I4,719.
In any event, the later " Phase II" hearing record shows that there would be sub-I stantial federalinvolvement in the making of protective action recommendations. The Department of Energy RAP Team participates in protective action recommendations, and since the RAP Team operates out of Brookhaven National Laboratory, a few miles from the plant, it would be involved promptly. Cordaro et al., ff. Tr.10,196, at 15.
The Interveners' contentions about the ability of the DOE Team to do its job have al-ready been resolved, for the most part by summary disposition.
As for the NRC, NRC witness Schwartz testified that the NRC regulatory over-sight would help ensure that emergency. decisions were prompt and appropriate.
Schwartz, ff. Tr.15,143 at 4: Tr.15,161 (Schwartz). The utility, af ter calling State and local officials, calls the NRC Operations Center from the control room. Tr. 15,230 l
(Schwartz); Cordero et al., ff. Tr.10,196, at 30-31. There is at least one I&E person on call twenty-four hours a day, Tr.15,230 (Schwartz), and he has other people he can
. consult. Tr.15,231 (Schwartz). And, there is an NRC resident inspector at Shoreham eight hours a day. Tr.15,235 (Schwartz). The NRC has the authority to order the 11-censee to take action. Tr.15,231,15,233-36,15,245-47,15,257-58 (Schwartz),15,257 (Sears).
Moreover, a recommendation based on EAL's cannot be challenged by the Inter-venors in this litigation. As the Interveners have said, "we are confident that all plants utilize EAL classifications, since EALs are spelled out in NUREG-0654." Suffolk County and the State of New York Proposed Findings of Fact and Conclusions of Law on I
Off-Site Emergency Planning, Vol. I (Oct. 26,1984), at 112. More recently, the NRC l
l l
Staff has said that the " licensee's delcared emergency classification cannot be changed 1
by offsite officials." Letter to John D. Leonard, Jr., from Ronald R. Bellamy, May 28, 1
1987.
l The EAL's, too, were a " Phase I" issue, as were other elements that go into pro-tective action decisions. In Phase I Contention EP 4 (" Protective Actions"), Suffolk County contended that LILCO had not met NRC requirements "with respect to develop-I ment and implementation of a range of protective actions for emergency workers and l
l the public within the plume exposure pathway EPZ and with respect to development of j
guidelines for the choices of such actions in that the LILCO plan and procedures do not adequately discuss the bases for the choice of recommended protective actions (b, the choice between various ranges of evacuation vs. sheltering vs. other options) for the plume exposure pathway EPZ during emergency conditions." In Phase I Contention EP 10 (" Accident Assessment and Monitoring"), Suffolk County contended the following:
LILCO's plan... is inadequate with respect to its ability to assess and mitigate accidents and monitor radiological re-leases from the Shoreham facility in the event of a ra-diological emergency.
Likewise, LILCO's dose assessment model was a Phase I issue. In particular, the County filed direct testimony on Contention EP 14 criticizing LILCO's dose assessment
1 model. Direct Testimony of Fred C. Finlayson on Behalf of Suffolk County Regarding Contention EP 14 (Accident Assessment and Dose Assessment Models) (October 12, 1982); Direct Testimony of Gregory C. Minor on Behalf of Suffolk County Regarding i
Contentions EP 10(B),10(C) (Radiation Monitoring) and EP 14 (Dose Assessment)
)
(October 12, 1982). This issue, like other Phase 1 issues, was dismissed when the Inter-venors refused to go forward with it.
Phase I Contention 10(A) contended that LILCO's commitment to three ra-l diological monitoring teams was inadequate for timely monitoring of potential ra-l l
diological releases. LILCO agreed to commit to a fourth replacement field monitoring team, thereby increasing its ability to assure continued to " assure continued radiological monitoring by downwind survey teams during any radiological emergency." LlLCO i
agreed to provide the amended plan and implementing procedures to the County for its review at the same time as submitting those amendments to the NRC. Accordingly, the County found that EP 10(A) was resolved. Resolution of Suffolk County Contention l
I 10(A)- Field Monitoring Teams (October 12,1982), ff. Tr.14,719.
j
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Hence, virtually every element that goes into a protective action decision has already been litigated. The Interveners would always have the option of relying on the 1
recommendation of LERO, the DOE, the NRC, and FEMA. A "best effort" response would require that they so act if an immediate decision were necessary to protect the public and they were unable to make an independent decision because of their lack of preparation. Thus, there is no longer any litigable issue with respect to the Interveners' ability to make these decisions.
VI. The Issues with Respect to Each Contention The basic question raised by the Board in its September 17 decision on summary disposition was "how the Governments will respond and whether that response will ful-fill regulatory requirements." Memorandum and Order, at 23 (Sept.17,1987). But with l
l respect to each of the nine contentions still in issue, the existing record, applied to the l
)
new rule, answers the question. Below LILCO addresses how the issues LILCO identi-j
'1 fled in "LILCO's Views on the Issues and Schedule in the Realism Remand," Oct. 30, 1987 (hereinaf ter "LILCO's Views") are affected by the new rule.
A.
Traffic The Board's question on traffic control was "how traffic will be guided and by whom." Memorandum and Order, at 35 (Sept.17,1987); LILCO's Views, at 7 (Oct. 30, 1987). In light of the new rule, the answer to "how" is "in accordance with the LILCO plan." The answer to "who" is "the Suffolk County Police, aided as necessary by LERO i
traffic guides."
]
l LILCO in its October 30 Views translated the Board's question into four issues,.
I the first of which restated the " immateriality" issue:
1 1.
If an evacuation of the EPZ were uncontrolled (that is, 4
without traffic guides and channeling of traffic) would the impact on the public health and safety be signifi-cant, compared to the impact if the LILCO traffic plan were implemented?
1 l
LILCO's Views, at 7. In light of the new rule, this issue need not be litigated at all, be-I l
cause the evacuation would not be uncontrolled. The State and County may be pre-sumed to " generally follow" the LILCO plan. If they do not plan to follow the LILCO
]
plan, they should have specified by now how they will depart from it and how much this 1
will slow down the evacuation..Since they have not stated such specifics, there is no litigable issue.
The second issue suggested by LILCO was whether Stae or County officials would increase the risk to the public:
2.
Would State or County officials, using best efforts, slow down an evacuation to make it longer than the evacua-tion times, either controlled or uncontrolled, under the LILCO plan?
i
- LILCO's Views, at 7.
In light of the new rule, the answer to this is "no."' Since the -
State and County would generally follow the LILCO plan, the evacuation times under-the LILCO plan would be the correct ones.
A third " traffic" issue identified by LILCO was about the mechanics of getting
]
permission to have LILCO traffic guides direct traffic in an extremely fast-moving ac-cident:
3.
How would LERO secure permission from the State or County to have LERO traffic guides direct traffic until police officers could take over?
- LILCO Views, at 7. In light of the new rule, this becomes a nonissue. The County is presumed to follow generally the LILCO plan. The facts needed to answer the "how" question are contained in the statement of material facts attached to LILCO's rejected motion for summary disposition of the realism issue. It is now established on the record -
that the RECS line connects the Shoreham control room with the Suffolk County Police i
Department Headquarters and the Suffolk County Department of Fire, Rescue, and -
l Emergency Services (DFRES)(Material Fact 8, not contested as to the County), th'at the i
l Police Headquarters and the DFRES have commercial phones (Material Fact 11) (the police are reached by dialing 911), and that there is a dedicated telephone line from the Shoreham control room to the Suffolk County Police Department (Material Fact 13).
In an extremely fast-breaking accident, LlLCO would inform the police and ask I
l permission to direct traffic, according to the plan, until police officers arrived at the l
various traffic posts. See Material Facts 29,55. In either a slow-or a fast-breaking
)
accident LILCO could describe the various. traffic posts to the police over the phone, and the police could dispatch officers to those posts. See Material Fact 56. The LERO traffic guides would be mobilized but wait to direct traffic until LERO had received permission by phone. The LERO traffic guides are directed by procedure, and trained, to cooperate with the police when they show up. A specific. procedure for dealing with
~
! i the police has long been incorporated into the LILCO plan. See OPIP 3.6.3, pp. 62-63 of 77, Att.15.
If the Interveners believed they would not permit LERO to direct traffic until the police arrived and that they would thereby slow down the evacuation of the public, then it was up to them to say so and to specify how much they would delay evacuation.
I LILCO could then have adjusted its plan to take into account the increased evacuation times. But the Interveners have not carried that burden of going forward, and so there is no litigable issue as to Contention 1 about traffic.
i l
B.
Blocking Roadways As for blocking roadways, LILCO suggested three issues, the first ot which was.
immateriality:
1.
If the provisions in the LILCO plan for blocking road-ways, erecting barriers in roadways, and channeling traffic were not implemented, would the impact on the public health and safety be significant, compared to the impact if the LILCO plan were implemented?
LILCO's Views, at 8. The answer to this, as to the question about directing traffic, is that the provisions in the plan would be implemented, since the authorities would gen-erally follow the LILCO plan. If the Interveners have specific ways in which'they would improve the plan, they should have said so. Since they have not, there is no issue.
The second issue stated by LILCO was this:
2.
How would LILCO explain to the State and County, at the time of an emergency, the provisions in the LILCO plan for blocking roadways, erecting barriers in road-ways, and channeling traffic?
LILCO's Views, at 8. The locations of the traffic posts should already be known to the Suffolk County police through possession of copies of the Shoreham offsite emergency plan, but could, and if necessary would, be read to the police over the phone. Once an
I' individual policeman arrived at a post, he could refer to the printed directions that each LERO traffic guide carries with him (Material Fact 55).
Finally, LILCO stated this issue:
3.
Would the State and County decline to block roadways e_tc., or authorize LERO to do so, if declining to do so would make the evacuation slower?
j LILCO's Views, at 8. Again, the presumption that the Interveners would follow the plan I
resolves this issue. Since the Interveners have not carried the burden of showing that i
they would slow down the evacuation and how much, there is no litigable issue.
C.
Towing The Board raised the follpwing questions about how road obstructions would be removed: how would the obstructions be removed, who would remove them, and how would their removal be coordinated with such other functions as guiding traffic and se-lecting alternate evacuation routes? The Board also asked "who would be in overall charge of a clear and well planned response." Memorandum and Order, at 36 (Sept.17, 1987); LILCO's Views, at 3. LILCO translated these questions into three issues, the first of which went to how LERO would get permission to tow stalled cars or disabled vehl-cles:
1.
How would LERO get permission from State or County authorities to remove obstructions?
LILCO's Views, at 9. The short answer is that LERO would get permission in the same I
way it would get permission to direct traffic, namely by calling the Suffolk County Po-lice and asking for permission to remove a stalled car that was blocking an evacuation route. As soon as the County Commissioner of DFRES or the Director of the State Emergency Management Office assumed command-and-control, permission would be got from him.
I i In an accident, LILCO would mobilize its tow trucks in exactly the same manner I
as if it had legal authority, since there is nothing illegal about driving tow trucks on the public roadways. LILCO would not tow any cars or remove any obstructions, however, until the Suifolk County Police had given permission.
]
If the Interveners believe they would not give LERO permission to tow a car off the road, then they should have said so and specified how long they thought this refusal i
would delay evacuation. Since they have not met that burden, there is no litigable issue.
l l
The second issue proposed by LILCO was whether the State or County would use
'l l
LERO equipment, under their control, to remove obstructions:
l 2.
If LERO were not given permission to remove obstruc-tions, would the State or County nevertheless use LERO equipment, under State or County control, to re-
-l move obstructions?
LILCO's Views, at 9. If they follow generally the LILCO plan, then of course the State and County will use LERO equipment, applying their best efforts,if that is necessary to remove an obstruction that would otherwise delay evacuation.
The third issue about removing obstructions was whether the State or County have alternate means of removing obstructions that would be just as good or better than LERO's:
3.
Do the State or County have resources (b, vehicles i
and drivers) that would be used to remove obstruc-tions?
LILCO's Views, at 9. This issue does not have to be resolved under the new rule, be-cause we may now presume that the State or County would generally follow the LILCO plan, which provides for LERO tow trucks. If the State or County have a better idea, then they should have stated it.
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D.
Sirens and EBS i
l The Board asked a number of questions about the sirens and EBS system, namely:
l Would the New York State EBS, the LILCO EBS, some other system, or no system be used?
Would the messages prepared by-LILCO or some other. as yet unapproved set of messages be used?
Who would decide when to broadcast the EBS messages and by '
what system?
What EBS system would be used?
How and at whose direction willit be activated?
What messages willit broadcast?
Memorandum and Order, at 31 (Sept.17,1987); LILCO's Views, at 10. LILCO derived from the Board's words three basic issues, the first of which was.whether the State or County would permit or direct LILCO to activate the sirens if the public needed to be l
alerted.
I 1.
Would the State or County permit or direct LILCO to 4
activate the sirens if the public needed to be alerted to an emergency?
LILCO's Views, at 10. The short answer is that the State or County would direct LILCO.
to activate its sirens if the public needed to be alerted. LILCO will have advised the public in advance, by means of the public education brochure, that the sound of the si-l l
rens means that they should tune to the EBS for further information. There is no better l
way to alert the public than to sound the existing sirens. If the State and County hate a better means, then they have failed to timely state what it is. '(In any event, if tr.ere were better means, it could only improve 'the response compared to the alrer.dy liti-gated plan.) The presumption under the new rule that the S!?ta anri C unty would gen-i erally follow the LILCO plan compels the conclusion that they would use the sirens to alert the public. In the ordinary case, the Commissioner of the DFRES or the Director of the State Emergency Management Office would tell the EOC by phone to activate the strens.
1 l
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L 1
The next two questions' identified by LILCO address the content of messages to l
l be broadcast to the public:
Would the State.or County refuse to permit informa-2.
tion about the accident to be broadcast to the public?
3.
Would the State or County. broadcast. confusing, mis-leading, inaccurate, or inconsistent information to the-public?.
i LILCO's Views, at 10-11. The answer to the questions is a simple 'one. LILCO would, as
-l stated in its motion for summary disposition, call the State and County an'd ask them to
- )
activate the State EBS and have the State EBS radio station phone LERO to get the ap-propriate message from the LILCO plan..In the same phone calls to the State or Coun-j ty, LILCO would ask permission to activate the LILCO-specific' EBS using' the Con '
1 necticut control station. The same message would be broadcast on both systems.
There is simply no issue over whether the State and County would spoil an emer-gency response by broadcasting inconsistent information. The. record is clear that Suffolk County understands the need to coordinate EBS messages. There is a contract between LILCO and.Suffolk County, executed in December 1979, that agrees, among.
Other things, that G.
The County and LILCO agree to coordinate their ef-forts in the release of information to the public to pro-vide the public with accurate and timely information.
This contract is in the pleadings record of this proceeding. LILCO's Brief in Opposition to Suffolk County's Motica to Terminate this Proceeding and for Certification, Vol. 2, Att. 2, at 3, (Mar.18,1983). The County has attempted to repudiate this contract, but
.i the Board cannot rely on an Intervenor's bre'ach of contract as a basis for a finding.
i Moreover, since the. State EBS includes most of the stations in the LILCO-specific EBS, the question of which system would be used is not material. And since the same message, from the LILCO plan, would be given' to both systems,'which 'EBS a
makes no difference. The presumption under the new rule that the State and' County-u l
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would. generally follow the LILCO plan compels the. conclusion that they would, since.
they have nothing better, use the pre-approved messages in the LILCO planM E.
- Protective Action Decisions and Recommendations Contention 6 ' addresses legal authority to make " decisions and officiN1 recom-mendations" about protective actions._ The Board raised the questions:
.1 Who will assume charge? -
Who will decida when protective actions are required?
What criteria will the decisionmaker use to determine the ap-propriate protective action?
Memorandum and Order, at 33 (Sept.17,198?); LILCO's Views, at'11. LILCO distilled these into the issue whether the State or County Nould make appropriate decisions:
1.
Would State or. County make the. decision that certain people should shelter or evacuate, if.they had the nec-essary information from LERO, LILCO, NRC, FEMA and DOE?
LILCO's Views, at 11. The answer is quite clearly that they would' make the necessary -
decision. No one has suggested any reason why a State or County decisionmaker would be disabled from making a decision that the'public should shelter or evacuate, given a fully adequate emergency plan, which they would generally follow using their "best ef-forts."
The questions the Board asked are subsumed in this general issue. ' As to'who will be in charge, the answer,is the County Executive and the Commissioner of the DFRES,.
unless the County is unwilling or unable to command the response, in.which case the State would take over, as provided by State law and the State plan. In that event, State!
10/
If the State and County have a better alternative.to the messages' already'liti-gated and approved by the NRC, they should have said so long ago. An alternative pro-.
duced now. for purposes of this litigation would be neither timely nor, most likely, in.
" good f aith."
1 l-__--.---.A__.--
I !
i agencies under the direction of the State Emergency Management Office would direct i
the response. This is the ordinary pattern in New York State. See Material Fact 38.
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Finally, as to what criteria the decisionmaker would use, the answer is clear.
Given the assumption of the new rule that the County would generally follow the I
LILCO plan, it would use the EPA Protective Action Guidelines, the same as are used i
t elsewhere. The "best possible" Voorhees plan (at 92)likewise provided that EPA's PAG's would be used.
Moreover, in an extremely fast-breaking emergency the protective action ree-l commendations would be made on the basis of plant conditions. The initial classification of the emergency, always done by the onsite organization, is based on nondiscret Emergency Action Levels (EAL's), which detall actual gauge and meter readings tha when exceeded mandate the declaration of particular levels of emergency. Cordaro et al, ff. Tr.10,196 at 14; Tr.10,292,10,317 (Weismantle). In the case of a fast-break General Emergency, the EAL's dictate that certain protective actions be taken.
Tr.
10,293-94 (Cordaro); see also Tr.15,223 (kars). EAL's have greatly reduced the tial for ambiguity.
Tr. 15,224, 15,254-55 (Schwartz), 15,228 (Sears), 10,263-64 (Weismantle).W Moreover, as noted above, the NRC Staff has said that the offsite authorities do
{
not have the authority to reclassify the accident. Letter to John D. Leonard, Jr., from l
Ronald R. Bellamy, May 28, 1987. While it is theoretically possible that they might do I
something more conservative than called for by the federally approved EAL's, no one has suggested what "something more conservative" might be, nor has anyone s i
how that would harm the public, i
i 4
3 11/
Area or General Emergency, the activation of the EBS syst l
mandatory.
tions for the pubile could be recommended (except for early d which occurs at the Alert Stage). Cordaro et al., ff. Tr.10,196 at 18; OPIP 3.1.1 SS 5.4.
I
l The State has attempted to strengthen its case by unplugging its RECS phone.
However, this is immaterial. A "best effort" and a following of the LILCO plan would require plugging the phone back in, no later than when the plant began to operate.N
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Also, the operability of communications from LILCO to the offsite authorities was a " Phase I" issue that may not be contested now. The Phase I issues included not j
just issues about the onsite plan, but all issues that were capaole of being resolved be-1 fore the County finished its own plan, specifically including such things as the adequacy.
of the warning siren system and the means for communicating from the Shoreham plant to offsite authorities. For example, Phase I Contention 11(A) alleged the inadequacy of "the Hotline," described as the " primary means for notification of the State and Coun-ly." 16 NRC at 1026 (1982).
F.
Inrestion Pathway and Recovery and Reentry The Board's questions about the ingestion pathway and recovery and reentry is-sues went to what would happen if LERO and the State and County governments worked at " cross purposes." Memorandum and Order, at 38-39 (Sept.17,1987); LILCO's Views, at 13. The Board also asked "who will decide" and "by what standards" decisions about recovery and reentry would be made. Ld.
As to the ingestion pathway, LILCO summarized the question thus:
1.
Who would make decisions and official recommenda-tions concerning protective actions for the ingestion exposure pathway?
LILCO's Views, at 13. Given the presumption under the new rule that the State would follow the LILCO plan, there is no litigable issue here. Both the State plan and,the M/
The fact that the State has not plugged in its phone for 5% operation -
Shoreham is, af ter all, an operating plant - suggests that the State agrees with the NRC's judgment that there need not be an approved offsite plan for 5% operation. See 10 CFR S 50.47(d)(1987).
4 l.
l LILCO plan call for a committee to be appointed, and LILCO believes there are no I
inconsistencies between the two.
Likewise, the standards used to make ingestion pathway decisions are the FDA l
I Protective Action Guides, which are used not only under the LILCO plan but under other radiological plans.EI There is simply no difference in making these sorts of de-cisions for the Shoreham 50-mile EPZ and in making them for the 50-mile EPZ at other plants. Indeed, the 50-mile EPZ for several other sites overlap with that for Shoreham.
As for recovery and reentry, LILCO restated the Board's questions as three is-sues. The first was who would make decisions:
l-l 1.
Who would make decisio.ns and official recommenda-tions to the public concerning the recovery and reen-try?
LILCO's Views, at 13. The short answer is that the State of Disaster Preparedness Commission would appoint a committee, as noted above.M/ This process is like that 1_3/
For the ingestion pathway, the State Radiological Emergency Preparedness Plan.
(REPP) provides two levels of Protective Action Guides (PAG's), a preventative level and an emergency level. State REPP, at III-36 (Rev.11/83). For milk _ and dairy prod-ucts the preventative level is 1.5 rem to a child's thyroid or 0.5,whole body dose, and an emergency level of 15 rem to a child's thyroid or 5 rem whole body dose. Ld., at III-36.
I OPIP 3.6.6 in the LILCO plan delineates specific preventative and emergency preventative action guidelines, established by the FDA. See Cordaro et al.,-if. Tr.
13,563, at 18-19, Att.1; Baldwin et al., ff. Tr.12,174, at 86-87. The LERO Director of Local Response is to communicate protective action recommendations directly to the New York State Commissioner of Health. LERO is to undertake to implement pro-tective actions under OPIP 3.6.6 only if New York State officials iall to assume respon-sibility, which they of course would not do. See Cordaro et al., ff. Tr.13,563, at 37, A t t.1.
Also the "best possible" Voorhees pla'n (at 92) provided for the use of FDA Pro-tective Action Guides for the ingestion of food, water, and milk.
1_4/
The New York State Radiological Emergency Preparedness Plan (Rev. 7/84) pro-vides for a Recovery Committee:
The Recovery Committee, appointed by the Disaster Pre-paredness Commission, will provide the direction of State (footnote continued) l
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under the LILCO plan, which likewise calls for a committee to be appointed. jLIIMC[
j
,y would, pursuant to its plan, defer to the State decisions and refrain from making rec-s; i
),,.
O jp commendations or giving information tc,the public th$t]coniffe.t6Mth the State deci-J
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,y sions.
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,.,e r The second issue under recovery and reentry identifiedDy k.ILCO was whether y
LERO 'would make decisions and recommendations independently of the State and 1
County:
2.
Would LERO make decisions and recommendations in-l dependently of the State and County?
y :,d d
{
LILCO's Views, at 3D. As noted above, the], answer is "no."
Under the LILCO plan,'
1
>5, t Nt. r LILpO,would deferN:he Stavt, as it woul havh,ko do under a governmental plan
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Finally, LILCOldddressed the issue of what standards would be used:
,f
'i<-
- 3. '
Would LERO use standards different irom those used by the State and County?
LILCO's Views, at 13. The answer is quite clearly "no." The State and County would be in charge of decisions for recovsiy md reentry, as hot, other plants in New York State Given the presumption of ths rew rule that the r
7 LILCO plan, there is no litigable is50e.
The IMh is that, as withlecisionmtking for the plume EPZ, decisionmaking for the 50-mile EPZ and for recovery and reentry has already been litigated. As noted in this Board's Partial Initial Decision, the 'ntervenors raised issues about a " host" of '
5,.
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' (footnote continued}y/
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,, resources and recovery activities. The Office of Disaster Preparedness will act as the Liaison for the Commissio' be-k' n
tween local, State and Federal' agencies and will coordinate
/L State and Federal assistance programs.
State REPP (Rev. 7/84), at I-9.
o s'
f.
j-
,1 I
. V specific actions that might need to be taken in the ingestion pathway EPZ. PID, 21 j
i
/
NRC at 875. LILCO carried its burden of proof on these issues. Ld., at 875-78. The j
s LILCO plan provides that the LERO Director of Local Response will communicate pro-tective action recommendations directly to the State Commissioner of Health. PID,21 NRC 644,876 (1985).
1 A3 for recovery and reentry, the Board already ruled on LERO's Recovery Action i
Committee:
('
The Board notes at the outset that recovery and reen-try activities will be undertaken af ter an accident and an esiscuation have occurred. It is fair to conclude that the pub-i lie would be safe from radiation exposure at the time that cmsideration of recovery and reentry was undertaken. There q
l 1s!.io basis in the testimony for concluding;that the Recovery i-Action Committee would face an urgent question of public I
health and safety. When the Committee begins its delibera-l tions, the immediate health-or life-threatening emergency j
would be over. The Committee would have time to deliberate j
and decide what it should recommend.
i 1
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f b plan to form an expert committee at the time of an acci-
'ipt to make decisions according to predetermined guidelines
-'g
' poasitutes a reasonable plan for recovery and reentry. It is not necessary to preplan at this stage for contingencies that a 6mmittee can resolve at the time of an accident when it has l
the necessary information for decisionmaking. None of the l
i problems cited by the County such as decontamination, radio-active waste disposal, security, adequacy of food and water i
supplies, or traffic control are novel or technically obscure.
Their management depends on situation-specific information,
('
and there is no advantage to public health and safety to solve f
tt?m now in the abstract rather than at the time of the emergency when the specific facts of the situation are l
known.
The Recovery Action Committee is a reasonable means for making the necessary decisions about recovery and reentry in the af termath of an evacuation. Contention 85 is without medt.
Also, the Board already decided what standards would be applied:
LILCO has set forth criteria for recovery and reentry
/,
of contaminated areas in its Plan. The criteria provide that I
environmental monitoring, plant data, and laboratory analysis of isotopes will be used to estimate dose from direct constant exposure and from inhalation of resuspended particulate. If 0
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Cbl0 those ef forth s!$w an integrsted Mmual dose greater than 500 j
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millirem whole body or the equiva!ent to any organ, the area j
will be considered contaminated.
Cordaro. et al., ff. Tr.
15,284, at 6, A ttach. 2; Tr.15,329-30,' 15,361 (Daverlo,' Watts).
The criteriongof 500 millirem per year (mris/pr) whole-body or eqdvaXent organ dose is taken from 10 C'.ER.
)
S 20.105(a). This criterion was adopted since there is no other j
NRC regulation or NUREG-0654 guideline that addresseriac-J ceptable of.tsite/ radiological levels for reentry." Cordaro ef
-l ah, Tr.15,284,'at 7.qNew York State radiological emergencyi preparedness planstiso use 500 millirem as a threshold con-tamination level for.tventry. Id. at 8. Attach. 4; Tr.15,369-j 72,15,375-79 (Daverio, Watts). The NRC Staff finds this level %
t 4
appropriate. S.F. 755,756.
g LILCO also has a method for calculation of total popa-l lation exposureJ whfah is needed in assessing the potential I
long-term consequences of a radiological accident.: Tr.
15,341-42 (Watts); Tr.14.333, R,579 (Keller). The calcultphn of total population (tst is. a tool for assessing the long-term,
health consequences, i9. any, of a radiological release. There is no immediate need to know the total population dose during emergency operations; the dose will te calculated only af ter.
deliberations with LERO and consultations with other outside agencies. Cordaro et til(Sepp. 85), ff. Tr.15,284, at 4, At-tach.1; Tr.15,341-42,15,?4741{(Daverio, Watts).
i The Board finds that LILCO's criteria for recovery and '
reentry are adequate and that its plans for estimating popula-tion dose are adequate. The Board agrees with Suifolk County that there might be merit in reducing population doses fur-f ther than 500 millirems annually. However, we see no resson j
why the Committee could not act in the interest of public j
health and safety at the time of an accident by considering i
the a3-low-as-reasonably-achievable principles of L10 C.F.R.
Part 20 on the one hand against the prescribed reentry dose -
[
on the other. That, however, is not a requirement for ap-3 c
proval of the Plan. It is sufficient for the Board to know at.
this time that whatever deliberation might be done by the Re-covery Action Committee, reentry would not be permitted if the projecte,1 dose to 0% population is greater than 500 mrem /yr. Suffolk County's concerns about possible inaccura-cies in population dose estimates have no merit because the population of the EPZ anc its subparts are well known and be-c=;e this presents no issue of protection of ppblic health and l
safety in an emenJency.,The Board finds that LILCO's plans 1
with regard to recovery and reentry dose criteria and popula-
/
tion exposure estimates are adequate and that Contention 88 is without merit.
c 1
4 h
L i
e
, 1 PID, 21 NRC at 881-82. In short, there are no litigable issues with respect to ingestion j
i pathway or recovery and reentry.
j l
?
G.
Dispensing Fuel-The Board raised one question about dispensing fuel to evacuating motorists who run out of fuel:
It is presently unclear how this safety feature would function, or indeed, whether it would function at all.
Memorandum and Order, at 39 (Sept.17,1987). The answer to this question, however, i
has already been answered on the record. LILCO would mobilize its gasoline pump l
trucks at the time of an emergency. There is nothing illegal about LILCO's tank trucks l
driving on or parking adjacent to the public roadways. However, they would not give
)
1 s
gas to anyone until the State or County had given permission, i
LILCO restated this issue into three questions. The first was this:
1 l
I 1.
Would the State or County permit LERO to give fuel to motorists who needed it to evacuate?
LILCO's Views, at 14. The answer is, given the presumption of the new rule that the State and County would generally follow the LILCO plan, of course they would permit LERO to give fuel to motorists. There is no reason why they would not give permission.
Second, LILCO asked whether the State or County might provide fuel:
j 2.
Would the State or County provide fuel?
l LILCO's Views, at 14. Given the presumption that the State and County would follow I
the LILCO plan, they would not provide fuel independently, relying instead on LILCO's resources. If they intended to provide fuel themselves, it was up to them, long ago, to so state. Alternatives to the LILCO plan now would be neither timely nor in good faith.
l l
Finally, LILCO raised the immateriality issue:
3.
If fuel could not be provided by LERO or the State or County, would significant harm to the public health and safety result?
LILCO's Views, at 14. Under the new rule this need not be litigated, since the authori-ties would generally follow the LILCO plan. In any event, as the Licensing Board ree-ognized in approving LILCO's plan, dispensing of fuel is not required by any regulation or guideline and is simply an enhancement proposed by LILCO. PID,21 NRC at 814.
l H.
Access Control The Board stated the issue as "whether it matters that LILCO cannot enforce the abandonment of a contaminated area, but can only urge people to stay out." It further defined the ss'u'e as "whether or not the public can effectively be kept out of contami-i nated areas or areas threatened with imminent contamination," "what would occur if the local authorities were attempting to enforce one situation while LILCO was 'advis-ing' another, what standards the local authorities would use for exclusion and over how I
Wide an area, how these organization would interract and to what end."
l From this LILCO derived two issues, the first of which was the following:
l 1.
Would the State and County, using "best efforts," allow l
the public to enter contaminated areas that LERO ree-l ommended should be avoided?
'LILCO's Views, at 16. Since LILCO uses the EPA Protective Action Guidelines, the same as are used elsewhere to recommend the area that ought to be avoided, it cannot be seriously argued that the State would be less conservative. (If the State or County kept the people out of a larger area, no harm would be done.) There is simply no litigable issue here.
LILCO's second proposed issue is the following:
2.
If so, would there be significant harm to the public health and safety?
l LILCO's Views, at 16. Given the presumption of the new rule that the State would fol-low the LILCO plan, it cannot be contended that State would harm the public.
It is, af ter all, implausible that the public could not be kept out of contaminated areas. The Interveners have argued strenuously that people would avoid radioactive materials. The Board found, in the issue about interdicting food supplies, that the pub-lic would have every incentive to avoid contaminated foodstuffs. Given adequate infor-mation about the area at risk, it is hard to see how the public could suffer because of
" legal authority."N VII. Conclusion Over the course of more than four years of litigation over emergency planning i
for the Shoreham plant, the issues have evolved substantially, from whether the very refusal of state and local governments to submit plans should be dispositive of the Shoreham operating license proceeding, through the suitability of LILCO'S compensating offsite emergency plan, to - as is now the case - how the best-efforts response of noncooperating state and local governments in an actual emergency would mesh with a utility plan whose only substantial shortcoming is the utility's lack of inde-l pendent legal authority under state law. In the course of those four years, the plan de-veloped by LILCO has been examined exhaustively and found, but for issues relating to J,5/
It is a fact that governmental authorities rarely if ever " order" (as opposed to
" advise") an evacuation. The common belief that martial law is declared in an emer-j gency is a myth:
Virtually all evacuation in emergencies is voluntary; people never are forceably (sic] removed.
E. L. Quarantelli (Evacuation Behavior and Problems: Findings and Implications from the Research Literature, Ohio State Uni-versity, Disaster Research Center, Miscellaneous Report
- 27, 1980), notes that in all of the DRC field studies of di-saster no cases of forceable [ sic] removal were found.
Cordaro et al., if. Tr.1470, at 119.
LILCO's state-law implementing authority, to have no problems that LILCO cannot
)
remedy itself.E/ ee LBP-85-31,22 NRC 410,' 427 (1985).
S Since the Commission's decision in CLI-86-13, the only substantial open question.
4 on bgal authority issues has been that of accounting for and engraf ting-the actual emergency response of state and local governments - the concept known as the '"real-l ism doctrine"- onto the scheme set forth in the utility plan.' That issue,' as indicated 1
throughout this paper, has been substantially affected by the Commission's modification
_ j of its emergency planning rules published in the November 3 Federal Register.
None of the myriad of factual issues raised in the emergency planning proceed-l ings to date needs to be re-resolved by this Board in the course of dealing with the nine discrete legal authority issues affected by the realism doctrine. Indeed, as that doc-trine has been codified in the Commission's emergency planning rule in the November 3 j
Federal Register, there remain no further factual issues requiring development in evi-l dentiary proceedings.
The duration of any given proceeding does not, per se, entitle a party to any par-ticular result, process, or rate of progress. However, the record assembled in this pro-ceeding over the past four years significantly narrows.the range of serious argument over the legal authority issues before the Board. LILCO agrees with the characterize-tion by the previous presiding officer of this Board, in his November 9 resignation let-l ter, that the remaining phase of this litigation may be " intensive"; LILCO does not agree that it need be " extensive," in the sense of requiring substantial evidentiary pro-ceedings.EI Indeed, LILCO believes that'these issues are now susceptible, given.the l
16/
In addition, that plan has been exercised and subjected to detailed litigation, still ongoing, in the parallel OL-5 docket.
11 /
The departing Chairman may not have meant to imply that litigation of the legal authority issues or even the emergency planning issues would be extensive, since he had before him the 25 percent license issue as well.
_----__--__n_
- l j
I revisions and clarifications in the new emergency planning rule, of summary disposition in its f avor.
j 1
In short, LILCO believes that the Commission's recent amendment to its emer-gency planning rules has a material effect on the proper disposition of legal authority issues in this case, and will pursue that belief in a summary disposition motion to be i
filed imminently.
J l
i Respectfully submitted, Y.
AJ l
Donald P. Irwin '
James N. Christman David S. Harlow Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: November 17,1987 l
l I
i
-l LILCO, November 17,19871 J
a:
4 DOCKETED 1
}
TF WV 23 Ali18,
. CERTIFICATE OF SERVICE _
- 0FFICE N SECHLIAt*Y 00CMETING A SE4vlCf.
.BRANCW In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)2 Docket No. 50-322-OL-3
.)
I hereby certify that copies of LILCO'S SUPPLEMENTAL BRIEF ON THE NEW I
EMERGENCY PLANNING RULE were served this date upon the following by hand or-'
l telecopier as indicated by one asterisk, by Federal Express as indicated by two aster-isks, or by first-class mail, postage prepaid.
j James P. Gleason, Chairman
- Atomic Safety and Licensing Atomic Safety and Licettng Appeal Board Panel -.
Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.J 20555 East-West Towers, Rm. 407 -
q 4350 East-West Hwy.
Atomic Safety and Licensing, j
Bethesda, MD 20814 Board Panel-U.S. Nuclear Regulatory Commission Dr. Jerry R. Kline
- Washington, D.C. 20555 Atomic Safety and Licensing Board George E. Johnson, Esq.
- U.S. Nuclear Regulatory Commission Richard G. Bachmann, Esq.
East-West Towers, Rm. 427
. U.S. Nuclear Regulatory Commission 4350 East-West Hwy.
7735 Old Georgetown Road Bethesda, MD 20814 (to mailroom)
Mr. Frederick J. Shon
- Atomic Safety and Licensing Herbert H. Brown, Esq.
- Board Lawrence Coe Lanpher, Esq.
.j U.S. Nuclear Regulatory Commission Karla J. Letsche, Esq.
East-West Towers, Rm. 430 Kirkpatrick & Lockhart 4350 East-West Hwy.
South Lobby - 9th Floct.
Bethesda, MD 20814 1800 M Street, N.W.
4 Secretary of the Commission Attention Docketing and Service Fabian G.- Palomino, Esq.
- 1 Section Richard J. Zahnleuter, Esq.
_s U.S. Nuclear Regulatory Commission Special Counsel to the Governor 1717 H Street, N.W.
Executive Chamber-l Washington, D.C. 20555 Room 229 1
State _ Capito!
Albany, New York 12224 u
____-______________--___L
j Mary Gundrum, Esq.
Jonathan D. Feinberg, Esq.
)
Assistant Attorney General New York State Department of 120 Broadway Public Service, Staff Counsel Third Floor, Room 3-116 Three Rockefeller Plaza New York, New York 10271 Albany, New York 12223 j
Spence W. Perry, Esq.
- Ms. Nora Bredes.
William R. Cumming, Esq.
Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787
)
Washington, D.C. 20472 Gerald C. Crotty, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber l
Agency Building 2 State Capitol l
Empire State Plaza Albany, New York 12224 -
Albany, New York 12223 j
Martin Bradley Ashare, Esq. **
Stephen B. Latham, Esq. **
Eugene R. Kelly, Esq.
Twomey..Latham & Shea Suffolk County Attorney 33 West Second Street H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 i
l 2Ja.%.GA1ht i James N. Christ' man I
Hunton & Williams 707 East Main Street l
P.O. Box 1535 Richmond, Virginia 23212 l
DATED: November 17,1987 l
_ _ _ _ _ _ _ _ _ _. _ _ _ _ _ _ _. _ _ _ _ _ - _ _