ML20236V023
| ML20236V023 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/27/1987 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#487-4926 CLI-86-13, OL-3, NUDOCS 8712040041 | |
| Download: ML20236V023 (39) | |
Text
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LILCO, November 27,1987 DOCHETED
'l U5NRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 17 IOV 30 All:53 gFFICEofggggg,,
DCKE7 r pyg Before the Atomic Safety and Licensing Board In the Matter of
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LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
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i LILCO'S ANSWER TO FIVE RECENT PLEADINGS ON REALISM AND
SUMMARY
DISPOSITION I. Introduction This pleading responds to five recent Intervenor and NRC Staff pleadings.
One of them is the Interveners' November 12 motion that attacks LILCO's motions for summary disposition:
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Suffolk County, State of New York, and Town of Southampton Motion for Summary Rejection of Summary Disposition Mo-tion and for Expedited Consideration (Nov. 12, 1987)
I The four other pleadings, two by the Interveners and two by the NRC Staff, address the issues to be heard in the " realism" remand:
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I Suffolk County, State of New York, and Town of Southampton Response to Board's Memorandum to Parties of October 8, 1987 (Oct. 30,1987)
NRC Staff Response to the Board's Memorandum Requesting the Views of Parties on the Matters to be Decided on the Re-alism Remand (Oct. 30, 1987)
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 (Nov.17, 1987)
NRC Staff Supplementary Brief on Impact of October 29, 1987 Rule on CLI-86-13 Remand Proceeding (Nov. 17, 1987) gla2188uHas@p
)p3
. j LILCO's response to the above four " realism" briefs is due November 30, 1987.I!
LILCO's response to the Interveners' November 12 motion is due November 27.W l
LILCO files both responses today so as to consolidate them.
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LILCO has consolidated these two responses because Interveners' pleadings on realism raise several of the same procedural issues raised in their November 12 Motion.
In particular, Interveners argue with respect to all issues that this case should start over with a series of brand new proceedings. They argue, in essence, that the Board and parties should ignore the existing record; that they should, at least in effect, abandon the exist-ing contentions and start over with new ones; that the use of pretrial procedures to define and elimi-nate issues is improper; and that summary disposition, in particular, is improper.
The effect of the Interveners' proposals would be to start virtually ab initio on a series of issues that have all been the subject of exhaustive litigation on the merits.
LILCO responds to these arguments, and to the NRC Staff's realism bricts, below. Part II below summarizes the remaining issues before this Board. Part III ad-dresses the Interveners' procedural arguments. While Interveners have advanced these proposals as to all issues, their application to the EBS and school bus driver issues in particular would ignore the limited scope of the remands in favor of plenary opportuni-ty for redefinition of issues and ample procedures compatible only, if ever, with the commencement of a proceeding rather than its completion. Part IV addresses the four realism briefs (see above) of the Interveners and NRC Staff. Part V supports the 1/
The original filing date was November 24, 1987.
This was extended until November 30 by order of the Board telephoned to LILCO November 23.
2/
The certificate of service for the November 12 Motion states that it was served on LILCO counsel by telecopier on November 12, 1987. However, LILCO counsel did not receive Interveners' motion in fact until it arrived by regular first-class mail on November 16,1987.
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l Interveners' request for a prehearing conference and asks as well that a schedule be es-l i
tablished, including the immediate commencement of discovery.
The pleadings now before this Board raise matters that are fundamental to the nature and duration of the remainder of this proceeding, and perhaps even to its ulti-mate outcome. Each of the substantive issues still remaining in this case has been re-fined and narrowed over its five year course by trial, appeal, and remand. LILCO be-lieves that each is susceptible of summary resolution and, if permitted by the Board, i
will soon - on or about December 15 - complete the filing of papers intended to I
achieve that result. Under this construct, all issues will be posed within the next sev-eral weeks for substantive resolution by the Board. Even if this Board finds that there remain some issues for trial, the summary disposition process should narrow them suffi-ciently to permit expedited scheduling and procedures thereaf ter.
Interveners, at the other extreme, have set fortu proposals that would interdict the use of summary process, invite ample redefinition of issues, and entall fulsome pretrial procedures. Experience in this case suggests that if these proposals were sub-stantially accepted, over another year would be inevitably swallowed before the matter even got to the Board's hands for decision on the merits.W The implication for this proceeding of the diff.:rence between LILCO's proposals and the Interveners' is thus on the order of a year. As is discussed in further detail below, this difference, in a proceeding which has already been underway for five years, is fundamentally important. LILCO respectfully urges the Board to be mindful of it and of possibilities of bringing the remaining issues to a fairly considered but expeditious 3/
The process of draf ting and admission of contentions in this case has typically consumed two to four months. Discovery periods have run as long as six months. Testi-many preparation periods of several weeks have been granted and requested limits on length of filings denied. As a result, quantities of testimony have been prepared that readily permit trials of many weeks' duration. Even under the schedule for post-trial proceedings set forth in the Rules of Practice (which has never yet been achieved in this case), two more months elapse from closure of a record until the matter is even submitted to the Board for decision.
I l conclusion. LILCO intends to suggest further scheduling refinements following the j
i Board's ruling on the presently pending papers.
II. The Issues Lef t Before this
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Board Are Few and Well-Defined j
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Leaving aside reception centers and the 25 percent power application, the issues I
still before the Board af ter more than five years of emergency planning litigations are these, as defined by pertinent remand orders:
Remand Order from j
Appeal Board or l
Contention Nos.
Issue Commission 1-2, 4-10 Legal authority C LI-86-13, 24
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NRC 22 (1986) 25.C School bus driver A LAB-832, 23
" role conflict" NRC 135 (1986) 20 Emergency Broadcast C LI-87-05, System (EBS) 25 NRC (June 11,1987) 72.E Hospital evacuation A LAB-832; plans CLI-87-12, 26 NRC (Nov. 5,1987)
Each of these issues is before the Board on remand. A remand is not an invita-tion to begin litigating issues from scratch. A remand is a narrow proceeding designed to fill specified gaps in a record that has already been made. The scope of the evidence to be taken is therefore prescribed by the remand order, not by the parties. Thus (as is argued below) when the Interveners suggest, first, that new contentions should be draf ted and, second, that the remanded issues should include other issues that were not presented on appeal, they are incorrect.
4/
Phase I (onsite) issues were addressed from spring 1982 until November 1982, when Suffolk County was held in default as to those issues. Suffolk County first made official its opposition to any offsite emergency plan for Shoreham in February 1983.
LILCO initially submitted its offsite plan on May 26,1983, and the hearings on it began December 1983 and lasted until August 1984. A two-day hearing on the Nassau Veter-ans Memorial Coliseum was held in June 1985. And several months of hearings were held this past spring and summer, first on the FEMA graded exercise and then on re-ception centers.
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With respect to these remanded issues, LILCO's position is l
l that all the remaining issues are narrow ones; that all the remaining issues must be decided taking into account the huge amount of evidence that has al-ready been amassed in over five years of litigation of emergency planning issues; that it is not in the public's interest (though Interve-nors may consider it to be in theirs) to make each issue a major one and to draw out the litigation as long as possible; that when the remaining issues are analyzed using the existing record and the Commission's new emergency l
planning rule, no issues requiring any procedures be-yond summary ones are lef t; that on a remand, particularly, it is everyone's duty to attempt to narrow the issues, define the ones worth addressing, avoid digressions into new or secondary matters, and focus on true safety issues rather than de-tails; neededE):andthat act ve management of the case by the Board is that with active management all the remaining issues can be resolved quickly without violating anyone's due j
process rights.
These principles cause LILCO to oppose the Interveners' proposals for labyrinthine new procedures, to support their call for a prehearing conference, to ask for an immediate 1
commencement of discovery, and to recommend that summary disposition be taken se-riously as a means for narrowing and eliminating the issues.
III. The Interveners' Procedural Proposals Are Unsound LILCO has already asked for summary disposition of the school bus driver role conflict and EBS issues. See LILCO's Motion for Summary Disposition of Contention l
h/
Note that the Commission has encouraged Licensing Boards "to expedite the l
hearing process by using those management methods already contained in Part 2 of the l
Commission's Rules and Regulations." Statement of Policy on Conduct of Licensing i
Proceedings, CLI-81-8.13 NRC 452,453 (1981).
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I 25.C (" Role Conflict" of School Bus Drivers) (Oct. 22, 1987); LILCO's Motion for Sum-mary Disposition of the WALK Radio Issue (Nov. 6,1987). LILCO also plans to file a summary disposition motion on " realism," taking into account the Commission's new rule, on December 15, 1987, when the Board's suspension on new filings ends, and will also address the hospital evacuation plans issue in short order. In their "Suffolk County, l
State of New York, and Town of Southampton Motion for Summary Rejection of Sum-mary Disposition Motion and for Expedited Consideration" on November 12,1987 (here-inaf ter " November 12 Motion"), Interveners ask the Board summarily to reject LILCO's EBS summary disposition motion and to embark on a long series of suggested procedures l
to deal with the EBS issue. Interveners ask for similar treatment of school bus driver role conflict.EI LILCO opposes the November 12 Motion in its entirety,II and also op-poses the similar Intervenor procedural proposals in their November 13 answer on school bus drivers.
Interveners make three arguments to justify denying LILCO access to the sum-mary disposition procedure provided by 10 CFR S 2.749. First, they say that LILCO is abusing NRC procedures and attempting to impose its own rules on the Board. Second, they say LILCO violated the Commission's order reopening the WALK issue (CLI-87-05) j and the Appeal Board's decision (ALAB-832) remanding the school bus driver " role con-flict" issue. Third, they say that each remand issue involves a "new plan" justifying f/
The Interveners' November 12 Motion addresses both the EBS issue and the school bus driver role conflict issue, although not with as much detail as to the latter.
But in their November 13 answer to LILCO's summary disposition motion on the school bus driver issue Interveners seek the same relief with respect to the school bus driver motion (la., summary rejection and lengthy procedures) that they seek in connection with the EBS issue in their November 12 Motion. November 12 Motion at 4.
1/
By Order of November 16, 1987, the Board denied those portions of Interveners' November 12 Motion that sought expedited consideration of their motion and a tolling of the time within which Interveners are required to file any response to LILCO's EBS summary disposition motion. Order, November 16, 1987. The Board added, however, that " parties wishing to respond to other matters raised in Interveners' motion may do so within the time specified in the regulations." LILCO responds here to those matters.
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plenary inquiry. All three arguments are incorrect; LILCO addresses each in turn below.
A.
The Board Has Already Ruled that Resort to the Summary Disposition Regulation (10 CFR S 2.749)Is Proper Interveners assert that the relief sought in their November 12 Motion is neces-sary "to put a stop to LILCO's improper use of summary disposition motions in an at-tempt to short-circuit normal NRC procedures." November 12 Motion at 1. Although Interveners concede that LILCO is " entitled to file motions as provided by the regula-tions," they argue that in this case " direction by the Board is essential to put a stop to LILCO's abuse of those regulations." Id. at 10. Interveners repeatedly assert that LILCO's use of summary disposition is improper, IA at 3 ("LILCO seeks to circumvent proper, established procedures"), 4 ("an emerging pattern on LILCO's part to disregard proper procedure"), 9 (LILCO has " disregarded" the NRC's regulations and " proper pro-cedure"), and that LILCO is attempting "to have its own unilaterally-imposed rules gov-ern this proceeding,"iA at 2.
The Interveners' argument that summary disposition is improper is incorrect on its face. First, LILCO is simply proceeding in accordance with an NRC regulation, and that can hardly be improper. Second, the Commission's policy is to encourage the use of summary disposition to weed out insubstantial issues. Statement of Policy on Con-duct of Licensing Proceedings, CLI-81-8,13 NRC 452,457 (1981).
But the main reason the Board should reject the Interveners' argument is that the Board rejected the same argument only a few months ago. Interveners made the same argument that summary disposition is improper in their April 7,1987 motion to halt the Board's consideration of LILCO's Second Renewed Motion for Summary Disposi-tion of the " Legal Authority" Issues (Contentions EP 1-10). See Suffolk County, State of New York, and Town of Southampton Motion for Conference of Counsel and for Licens-ing Board Clarification of Procedures or, in the Alternative, for Additional Time to
i Respond to LILCO's Summary Disposition Motion, at 1-7 (April 7, IS87). There, as here, the Interveners asserted that LILCO's use of summary disposition was " inconsistent with standard NRC practice" and was " essentially a preemptive attack on standard NRC practice and on the rights of the Governments to deal substantively with the re-mand issues." Id at 1,2. There, as here, the Interveners argued that LILCO's summary a
l disposition motion was premature and that " proper procedure" required the Board to set guidelines on how and when litigation of the remanded issues should proceed before it could consider any " major substantive motion." & at 2,4-7; c1 November 12 Motion at 2,4,11.
The Board ruled, however, that LILCO's summary disposition motion was "consis-tent with NRC regulation and practice and does not pre-empt Board prerogatives."
Memorandum and Order (Ruling on Interveners' Motion to Convene Conference of Counsel, and Other Relief), at 5 (April 10,1987). More specifically, the Board found nothing in the filing of Applicant's motion that conflicts with the procedural requirements of 10 C.F.R. S 2.749 or with Commission practice. The filing of the motion promotes the focusing of the issues of the CLI-86-13 remand proceeding early on. This should ultimately result in the saving of re-sources for all participants. The filing of the motion for sum-3 mary disposition is not viewed by the Board as an interference in the carrying out of its functions, but as beneficial for resolving the dispute. That part of Interveners' motion to defer the filing of responses until af ter the holding of a con-ference of counsel is without merit and shall be denied.
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% at 7. Clearly, the Board found that LILCO was entitled to move for summary dispo-sition and that such motions are in fact " beneficial."
Thus, as is clear from the Board's prior rulings, LILCO's current summary dispo-sition motions are not " procedurally improper" or " premature," as Interveners allege in their Motion. See November 12 Motion at 2. And Interveners have ample opportunity, in the response allowed by 10 C.F.R. S 2.749(a), to attempt to show that LILCO's mo-tions are " substantively frivolous" (November 12 Motion at 2), if that is what they be-lieve. The Board should require Interveners to address the substance.
L B.
LILCO's Summary Disposition Motions Do Not Contravene CLI-87-05 or ALAB-832 l
Interveners'second argument is that LILCO's summary disposition motions vio-late the Commission and Appeal Board remand instructions to the Licensing Board.
November 12 Motion at 2. This argument is also without merit. As the Board has al-ready ruled the mere fact that the Commission remanded, rather than resolved, the re-alism issue does not, by itself, mean that the parties are guaranteed a full evidentiary hearing. Memorandum and Order, at 23 (Sept.17,1987). Indeed, no appellate body re-mands for a compulsory evidentiary hearing on issues as to which there is "no genuine issue as to any material fact," in the words of 10 CFR S 2.749(d). Hence it is appropri-ate and useful to use 5 2.749 to test whether there are any genuine issues as to material facts.
1.
LILCO's EBS Summary Disposition Motion Is Consistent with CLI-87-05 Interveners assert that when the Commission reopened the EBS issue in CLI 05 it " plainly... contemplated that af ter LILCO made its new EBS plan available, the Governments would be permitted to file contentions on the matter." November 12 Mo-tion at 5. Interveners allege that LILCO directly contradicted the Commission's ruling by filing for summary disposition at the same time it provided updated information on the Shoreham EBS. & at 6.
The Commission's language in CLI-87-05 does not support Interveners' argument.
When it granted Interveners' motion to reopen the EBS issue, the Commission also de-clined to entertain the new contentions that had been tendered by the Interveners, finding it " premature to admit contentions on the EBS situation until LILCO provides updated information on public notification procedures which may elicit additional con-tentions." CLI-87-05, 25 NRC
, slip op. at 4 (June 11,1987) (emphasis added). And in its conclusion, the Commission instructed the Licensing Board on remand to admit "new" contentions "only to the extent they assist in focusing further the litigation on
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earlier-admitted issues." Id. at 10 (emphasis added). Clearly, the Commission did not l
grant Interveners carte blanche to submit totally new contentions on LILCO's EBS ar-rangements as if they were writing on a clean slate, or even to expand the earlier-admitted issues. To the contrary, the Commission plainly contemplated the admission of new contentions only if Interveners could show, with the requisite basis and specif-I icity, that they would further focus the issues that had previously been admitted and litigated.EI Nothing the Commission said precluded LILCO from attempting to show that the reopened EBS issue should be disposed of on the pleadings.E 1
2.
LILCO's Summary Disposition Motion on School i
Bus Drivers Is Consistent With ALAB-832 l
Interveners argue that LILCO's summary disposition motion on the remanded i
l School bus driver issue (Contention EP 25.C) is improper for the same reasons as the
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motion on the EBS issue. See November 12 Motion at 9.
With respect to school bus drivers the Interveners argue that LILCO's motion is improper because it conflicts with ALAB-832. Motion at 7-8; see Long Island Lighting Co. (Shoreham Nuclear Power Sta-tion, Unit 1), ALAB-832, 23 NRC 135,153-54 (1986). Interveners incorrectly interpret ALAB-832 as requiring further evidentiary hearings, even if there is no genuine issue as to any material fact. They interpret ALAB-832 as giving them an absolute right to file new contentions, conduct discovery, and cross-examine LILCO about evacuating school children. November 12 Motion at 8-9.
3/
As LILCO noted in its summary disposition motion on the EBS issue, the only issue that was previously admitted and litigated was contained in Contention 20, which questioned whether WALK-AM could operate at night. See LILCO's Motion for Summa-ry Disposition of the WALK Radio Issue (November 6,1987), at 3,7 n.11.
9/
To the extent Interveners wish to raise issues beyond the scope of those defined by the remand orders, their remedy is to follow the procedures for reopening the record and submitting late-filed contentions. The threshold showings for such reopenings are, properly, very high because of their potential for disrupting the orderly completion of a case. See, e.g., Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-84-30, 20 NRC 426 (1984) (denying a petition to admit an untimely contention on financial qualifications).
l l.
But ALAB-832 says nothing of the kind. The single error for which the Appeal Board remanded the school bus driver role conflict issue was the exclusion of a poll of volunteer firemen. The lioard is to reconsider its " role conflict" finding in light of that evidence.
It is true that the Appeal Board also said that "[a]Il parties will be free to ad-duce additional evidence on the issue" and that "at a minimum" the Licensing Board is to accept the testimony related to the survey of volunteer firemen. ALAB-832,23 NRC at 154. In context, all this means is that, since previously excluded evidence is now to be considered, LILCO and the NRC Staff must have the opportunity to address it if they think necessary. But even if the Appeal Board meant to throw open the issue to new evidence from the Interveners as well, the opportunity for the Interveners to plead that new evidence is their response to LILCO's motion for summary disposition. If they have no such evidence, then summary disposition is called for.
In short, nothing in ALAB-832 or the NRC's regulations suggests that LILCO has done anything improper. LILCO is entitled to attempt to persuade the Board to dispose of the remand issues without further hearings. At the very least, summary disposition motions can (and should) be used to narrow the issues that need to go to hearing. A Li-l l
censing Board can, by granting summary disposition of minor issues, ensure that any l
subsequent hearing will be focused on s.ubstantial safety issues and not trivia.
C.
There Is No "New Plan" j
One of the Interveners' repeated arguments is that extensive litigation is neces-
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sary because there is a "new plan." In every case this argument is unfounded.
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In large part the Interveners' position depends on their desire to litigate minute
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details of emergency planning. This approach is contrary to NRC precedent, and it re-flects a confusion over " plans" versus " procedures":
The plans should be kept as concise as possible. The average l
plan should consist of perhaps hundreds of pages, not thou-i sands. The plan should make clear what is to be done in an emergency, how it is to be done and by whom.
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NUREG-0654, at 29. (Rev.11980). The Waterford case adjures licensing boards to con-centrate on planning issues and not the details of implementation. Louisiana Power and Light Co. (Waterford Steam Elec. Station, Unit 3), ALAB-732,17 NRC 1076,1103-04, 1106-07 (1983). Indeed, since NRC regulations do not require implementing procedures to be submitted to the NRC Regional Administrator until 180 days before issuance of an operating license, the Appeal Board concluded that The timing of this submission... convinces us that the Com-mission never intended the implementing procedures to be re-quired for the " reasonable assurance" finding and thus to be prepared and subject to scrutiny during the hearing.
I_d. at 1107 (footnote omitted).
1.
Changing the Roster of EBS Stations Is Not a "New Plan" Interveners mischaracterize the updated EBS information that LILCO submitted as a completely new "EBS plan" (see November 12 Motion at 2,3,4,5,6,7) and argue that when a "new plan"is submitted, there must be an opportunity for review, new con-l tentions, and discovery -in short, a whole new proceeding. Id at 3. They attempt to a
l bolster the "new EBS plan" characterization by allegations about the scope and content j
of the documents LILCO filed in support of its summary disposition motion.
To the contrary, as LILCO noted in its motion, the substance of LILCO's "EBS plan" has not changed; only a few of the players have changed, just as (for example) one or more ambulance companies may be replaced by others from time to time. There have been no substantive changes to LILCO's "EBS plan"; there are simply three new stations, and LILCO's motion demonstrates that they are able and willing to perform their EBS jobs. As to the supporting documents provided with LILCO's motion, their l
scope and content reflect only LILCO's attempt under 10 C.F.R. S 2.749 to demonstrate the absence of any material facts, not the breadth or complexity of LILCO's new EBS arrangements. In short, LILCO has not filed a "new EBS plan" such as to expose the re-opened EBS issue to new contentions and subject it to all the other procedural trappings that Interveners would have this Board install.
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2.
LILCO's School Bus Driver Commitment Is Not a "New Plan" Similarly, LILCO's new commitment to recruit additional school bus drivers does not represent a "new plan" for implementing protective actions for school children, as the Interveners claim. November 12 Motion at 2. Rather, the school plan is and always has been that LERO would make protective action recommendations to the school dis-tricts and the school districts would then decide which protective action (sheltering, early dismissal, or evacuation) to implement. LILCO's summary disposition motion does I
not change this plan at all. It simply makes the third alternative under the plan (evacu-j
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ation) surer and swif ter.
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1 In addition to arguing absolutely (but incorrectly) that an evidenthry hearing on school bus driver role conflict is required, the Interveners attempt to redefine the re-manded issue cover more than it does. For example, they argue that the " role conflict" l
Issue now includes the availability of equipment as well as people, which it clearly does
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not.MI Also, the Interveners incorrectly assert that role conflict of bus drivers during I
early dismissal is part of the remanded issue. Motion at 7,8; Answer at 2, 3, 6, 7, 14,
- 35. In fact, the "early dismissal" option under the LILCO plan is no different from early dismissal in, for example, a snowstorm. And early dismissal is called for at the Alert
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stage when no protective actions have been recommended. Hence, the school bus driv-
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ers would be doing nothing clifferent from what they do in their ordinary jobs. More-over, the volunteer fireman survey that the remand is to consider asked what firemen M/
Interveners' answer to LILCO's summary disposition motion on school bus drivers attempts to inject the issue whether there are enough buses to evacuate all schools in l
the EPZ.
Answer of Suffolk County, the State of New York and the Town of l
Southampton to LILCO's Motion for Summary Disposition of Contention 25.C (" Role i
Conflict" of School Bus Drivers) (November 13,1987) (hereinaf ter " Answer"), at 2, 5, 6, 11,14. As the Interveners admit in a footnote, however, the availability of buses (Con-
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tention 71.B.2) and role conflict of bus drivers (Contention 25.C) were litigated sepa-rately and are discussed in the PID separately. Answer at 9 n. 5. The Licensing Board's finding on buses was not appealed, and, a fortiori, the issue was not remanded in this proceeding.
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would do in an evacuation but did not ask about early dismissal of schools. (Even the In-tervenors' survey of school bus drivers did not ask about early dismissal. See Cole, ff.
Tr.1216, at 6-8.) Thus the remanded issue does not include early dismissal.
This conclusion is bolstered by the f act that the Appeal Board declined to rule on the Interveners' claim that the Licensing Board did not give sufficient weight to the In-tervenors' testimony on the effect of role conflict on the transportation and personnel requirements for early dismissal. See Suffolk County, State of New York, and Town of Southampton Brief on Appeal of Licensing Board April 17, 1985 Partial Initial Decision on Emergency Planning, at 60 (Oct. 23,1985). The Appeal Board obviously found no fault with the Licensing Board's treatment of that testimony, since it did not order the Licensing Board to reconsider it, the Interveners' only testimony on early dismissal.
The only conclusion that can be reached is that the Appeal Board was satisfied with the Licensing Board's treatment of that testimony and with its finding on role conflict and early dismissal.
B.
Elaborate Procedures Are Neither Necessary Nor Desirable 1.
Interveners' Procedural Proposals Are Not Justified by the Scope of the Remanded Issues The Interveners propose a number of elaborate procedures for every issue. They recommend, as a general pattern, a conference of counsel, followed by a Board order defining issues and procedures (as if issues were not already defined by the contentions, and procedures by the regulations), followed by the draf ting of new contentions with as-sociated briefs and counterbriefs, followed by lengthy discovery, and eventually getting to a hearing sometime in the distant future. Where a new regulation affects the litiga-tion, as with realism, the Interveners argue it cannot be applied until the agencies have I
issued guidelines.
This devotion to procedure for procedure's sake is especially evident in the Inter-I venors' appruach to the realism issue. The realism issue was presaged in 1983, when
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l LILCO noted that Suffolk County personnel would likely respond in a real emergency and asked the Board to consider a County plan;U! was laid out in LILCO's motion for j
l summary disposition in August 1984; was briefed in November 1984; and was restated in another summary disposition motion in March 1987. Yet Interveners still refuse to con-l front the facts, saying they are "in the dark" as to what LILCO means. Interveners' Re-sponse, at 6 n.3 (Oct. 30,1987). Indeed, when the Board asked the parties to address
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what issues are to be heard in the realism remand, the Interveners instead gave a few
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" examples" and then addressed instead the procedures that should be adopted for an-swering the Board's question. Ld. at 4-5,5-13.
l But the remaining issues do not require extensive discovery by Interveners or j
l other elaborate procedures.
The realism facts are mostly in the Interveners' own hands. The only thing new about school bus drivers is that LILCO has now committed to recruit additional LERO bus drivers as backups. The EBS is the same as before, ex-I cept that some of the stations are different. As noted above, it is plainly wrong to l
argue that every change is a "new plan" that calls for new contentions, massive discov-ery, and extended litigation. Replacing one or more radio stations in a system is not a l
l "new plan"; supplementing the pool of bus drivers is not a "new plan."
2.
Expedition is Needed i
This operating license proceeding has been active for nearly a decade. Emergen-
{
cy planning proceedings have been conducted virtually continuously since April 1982.
Offsite emergency planning issues nave been the subject of active proceedings in a sep-arate docket since the spring of 1983 (two dockets since mid-1986). During this period an evidentiary record of around 90,000 pages -- over 37,000 pages of it on offsite emer-gency planning alone -- has been accumulated.NI Issues have been looked at in minute l
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1_1/
LILCO's Memorandum of Service of Supplemental Euergency Planning Informa-tion, at 2,10 (May 26,1983).
1_2/
As of November 1,1987, the evidentiary record of the Shoreham operating 11-cense proceeding was 85,734 pages long (25,338 pages of prefiled written testimony and (footnote continued)
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detail, appealed, remanded, re-examined to the point where a virtual genealogy is re-quired. Some issues - for instance, the EBS sytem - remain issues simply because the case has been in the jaws of active litigation so long that the factual constructs underlying them have evolved and that evolution has been questioned.
Interveners' position is that notwithstanding this backdrop and the increasingly rarefied and repetitive character of issue examination in this case, this Board should approach each of the slivers of issues remaining before it with the kind of de novo de-liberateness that it might at the outset of a case, with recasting of issues by new con-I tentionF, discovery, and hearings following preliminary motions - a framework which, j
experience suggests, takes at least the better part of a year even for narrow issues, and 1
of ten considerably longer for larger ones. LILCO believes that such an approach at this point in this proceeding is legally unnecessary, would be wasteful of the Board's and the parties' resources, and could, by virtue of the sheer time required to complete it, deter-mine the outcome. The gist of most of the Interveners' arguments over the last month has been that this case should proceed very slowly and with many procedures. LILCO, on the other hand, urges that af ter five years of continuous and of ten multi-layered ex-amination, the time has come to bend all legitimate efforts to bring this proceeding to a conclusion.
1 i
(footnote continued) 1 60,396 transcript pages), not counting the 1,014 exhibits. This evidence is reflected in 9,538 pages of proposed findings and 5,307 pages of written rulings and decisions by NRC judges.
1 Of this record, much involves litigation of the offsite emergency plan: 7,519 pages of prefiled written testimony, 201 exhibits, and 18,192 pages of transcript (including hearings, oral arguments, and conferences). These totals do not include Phase I emergency planning, for which written testimony was filed but no hearings i
held. Nor do they include the litigation of the February 13, 1986 exercise, which has I
spawned a separate record almost 12,000 pages long (3218 pages of prefiled testimony l
and 8694 transcript pages), plus 149 exhibits. Nor does it include the r.umerous federal and state court cases growing out of this dispute.
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4 Moving slowly is no longer a neutral or evenhanded position in this case. It is a position that favors one side over the other. New York State legislation, passed at the
,i urging of the Governor in 1986, would have forbidden LILCO to include Shoreham in its rate base if it was not licensed by January 1989. A federal district court declared this provision unconstitutional,N but the State has now replaced that deadline with anoth-er of sorts. The New York Public Service Commission, decrying the " debilitating dead-l lock over Shoreham," has recently denied LILCO rate relief for Shoreham. Order of Nov. 5,1987, at 2 (Attachment 1 to this Answer). In that Order the PSC has given LILCO until April 1988 to return to it with a plan for meeting Long Island's energy
]
needs without reliance on Shoreham and to provide it with "high confidence that no further major obstacles exist to having Shoreham operate to meet the 1989 peak season l
i and beyond." Id. at 5.
Moreover, as the Board knows, there is a New York State agency, the Long Island Power Authority, created in 1986 expressly for the purpose of acquiring LILCO and 1
abandoning Shoreham. A decision on the merits in this NRC proceeding willinfluence l
the takeover one way or another, depending on whether LILCO or the Interveners pre-vail. But delay in reaching that decision favors only the Interveners. LILCO is not asking the Board to alter any NRC procedural or substantive requirement. But LILCO is asking for expedition, for five sound reasons-i NRC policy favors prompt completion of proceedings, consis-i tent with a fair hearing; Licensing Boards are supposed to manage their cases to achieve this end. See generally State-ment of Policy on Conduct of Licensing Proceedings, CLI 8,13 NRC 452 (1981).
The evidentiary record in this proceeding is already immense; the issues on remand call at most for the minor filling of gaps.
Delay in this proceeding clearly favors one side's (the Interveners') interests over the other's.
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Long Island Lighting Co. v. Cuomo, 87-CV-39 (N.D.N.Y. Aug.
4, 1987).
Long Island is critically short of electric generating capacity.
None of the issues now before the Board is new; the realism issue, in particular, was raised years ago, and LILCO has as-siduously tried to get it resolved.
In particular, the need for expedition, as well as other fully sufficient reasons recited below, counsels against the Interveners' proposals to draf t new contentions for remand.
C.
New Contentions Are Uncalled For 1.
A Remand Is Not the Occasion for New Contentions A remand, by definition, is of an issue that has already been defined, and for that matter already litigated. There is no basis in the regulations, and no sense, in writing new contentions at the remand stage. Even as to the EBS issue, the Commission has di-rected the Board to admit new contentions "only to the extent they assist in focusing further the litigation on earlier-admitted issues."
If the Interveners want to submit untimely contentions, they are required to sat-isfy the Commission's requirements for doing so. They are unlikely to be able to meet these requirements, particularly with respect to the realism issue. Totally apart from other considerations, the facts that LILCO laid out its position on realism in 1984 and that the details of what Interveners would do in an emergency are in their own control make new contentions now totally untimely.
l 2.
New Contentions Would Delay the Proceeding The history of this case demonstrates that the draf ting of contentions produces considerable delay. The first set of emergency planning contentions (though by no means the first set of safety contentions) addressed " Phase I," principally involving LILCO's onsite emergency plan. It took over four months, from April 14 to September 7, 1982,UI just to get the contentions finalized. At one point the Board found it 14/
At a prehearing conference on April 14, 1982, the Board asked for contentions to be filed, following this up with an April 20,1982 order. On June 18 Suffolk County sent j
(footnote continued)
necessary to provide " greater guidance" and permit the Interveners to revise some of their contentions. When " Phase II" began the same story was repeated. Again, the Board had to direct the Interveners to redraf t their contentions.N This time it took 3
almost three months just to get the contentions written.
And the writing of contentions is only the beginning of a litigation process that, in this proceeding, seems to take a minimum of eight months for even the simplest of issues. The litigation of the suitability of the Nassau Coliseum as a reception center in 1985, a proceeding that did not require new contentions, took about eight months from j
the time LILCO moved to reopen the record in January 1985 until the initial decision on August 26, 1985. If, as Interveners have suggested, each remand issue is litigated
)
seriatim, this case could last for many more years.
i (footnote continued) a draf t of its contentions to LILCO and the NRC Staff for review. The Interveners filed their contentions June 22, 1982. Parties met on June 30, at the Board's request, and the Interveners filed amended contentions on July 6. On July 20 the Board held a prehearing conference on the contentions and on July 27 it issued its "Prehearing Con-ference Order" finding "a need for greater guidance on the scope of those matters which we contemplate litigating during the initial phase of these emergency planning proceedings." Prehearing Conference Order (Phase I - Emergency Planning), at 1 (July 27, 1982). The Board required that certain of the contentions be further specified in a revised consolidated filing. Id. at 3. On August 2 the Interveners filed objections to the Board's Order and a motion for reconsideration of it. The Interveners provided revised drafts of contentions to LILCO on August 10, and filed their Phase One consolidated emergency planning contentions on August 20,1982. Finally, on September 7,1982, the Board issued its Supplemental Prehearing Conference Order (Phase I - Emergency Plan-ning) LBP-82-75,16 NRC 986 (1982), finally settling the Phase I contentions once and for all.
15/
The Interveners submitted over 100 pages of contentions on July 7,1983. At a prehearing conference of July 13, 1983 the Board invited Interveners to redraf t the contentions "to eliminate repetition and redundancy and to correct other organizational inadequacies." See Memorandum and Order Ruling on Interveners' Proposed Emergency Planning Contentions Modified to Reflect Revision 3 of the LILCO Plan (Feb. 3,1984).
The Interveners submitted revised contentions on July 26, 1983.
After another prehearing conference on August 9,1983, the Board ruled on the contentions on August 19, 1983. See Special Prehearing Conference Order (Ruling on Contentions and Estab-lishing Schedule for Discovery, Motions, and Hearing) (Aug. 19,1983) (unpublished).
Suffolk County and the Town of Southampton then filed objections to the August 19 order, which the Board ruled on on September 30. Order Ruling on Objections to Spe-cial Prehearing Conference Order (Sept. 30, 1983). Only then were the issues for litiga-tion established.
i,
IV. LILCO's Response to the f
Other Parties' Realism Arguments i
LILCO's own views on the issues in the realism issue were expressed in LILCO's Views on the Issues and Schedule in the Realism Remand (Oct. 30, 1987) and LILCO's Supplemental Brief on the New Emergency Planning Rule (Nov. 17, 1987). Here is LILCC's response to the views of the other parties.
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A.
The NRC Staff's Reading of the New R_U'e Is Sounder than the Interveners' The NRC Staff, in its November 17 brief, summarizes the effect of the new emergency plan rule as follows:
]
The effect of these provisions and rulemaking findings is to presume that the best effort response of state and local gov-ernments will be based on the utility plan unless it can be I
shown that these best efforts would be based on another ac-l ceptable radiological emergency plan which would in fact be implemented in an emergency.
NRC Staff Supplementary Brief, at 4 (Nov.17,1987). The Staff went on to clarify the l
l new rule:
The new rule and the further interpretation of CLI )
13 by the the Commission remove any possible doubt that the remand is to focus on best effort government implementation
]
of the LILCO Plan, and not on an open-ended inquiry into i
what the Intervenor governments intend to do in an actual emergency.
Id. at 4-5. LILCO agrees with these views of the NRC Staff. In LILCO's view, the only issue is whether New York State and Suffolk County, using their best effort, would somehow detract from the safety provided by the LILCO plan through their own inad-vertence.N In LILCO's view this is an issue not for litigation, but for summary dispo-sition.
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An alternate, "better" plan submitted by state and local governments may also be l
considered if it is " timely" and "in good faith."
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B.
The Issues Identified by the NRC Staff Are Resolved by the Existinst Record j
The NRC Staff did a thoughtful analysis of the remaining realism issues in its Re-sponse of October 30, 1987. However, LILCO believes that the issues raised in that pleading have simple, indisputable answers either on the existing record or on the f ace i
of other publicly available documents. Accordingly, while LILCO views the Staff's analysis of the record as useful,it believes that the summary disposition motion LILCO 1
intends to file December 15 will resolve all the issues raised by the Staff.
For example, the Staff raises the question how long it would take to inform the l
State and County:
- a. If Shoreham were licensed, how long would it take for LILCO/LERO to inform the State and County of an emergen-cy at Shoreham?
NRC Staff Response, at 5 (Oct. 30,1987). The short answer to this is "about the same time as under any other plan." LILCO has already established that both the RECS (Ra-dialogical Emergency Cominunication System) line and cutnmercial telephone lines con-1 nect LILCO/LERO with the State and County. (Communications to the "first line of au-thorities" was a " Phase I" issue that is no longer litigable in any event.) It must be presumed that the State will plug the RECS line back in once the plant operates above five percent of rated power; even if it does not, ordinary telephones can still be used.
If the Staff's concern goes to the second line of authorities, then again there ap-pears to be no real issue. State second-line personnel have to be contacted under the emergency plans for the three other nuclear sites in the State, and Shoreham would be no different. As for Suffolk County, second-line authorities (principally the County Ex-ecutive and the Commissioner of DFRES) could be reached quickly in a Shoreham emer-gency just as they could be reached during an emergency at the Brookhaven reactor, an 1
explosion, or a chemical spill. In the minutes before they were reached, the Suffolk
)
l County Police would have the authority to do what might be necessary to protect the l
public health and safety.
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I Likewise, the answer to the third question on the same page of the Staff's brief is already quite clear on the existing record. The third question asks how long it would i
take to communicate to the State and County:
I
- c. Would LILCO/LERO communicate to the governments within 15 minutes of declaring an emergency?
The LILCO onsite plan, in EPIP 1-5, provides that 3.2 The call to New York State /Suffolk County /LERO must be made within 15 minutes of each change of emergency classifi-l cation.
Shoreham Nuclear Power Station, Emergency Preparedness implementing Procedures, EPIP 1-5, p. 2 of 29,53.2 (Rev. 8, 05/05/87). Upon receiving responsibility for notifica-tions from the Emergency Director under the onsite plan, the Control Room Cornmuni-1 cator is to get the New York State /Suffolk County /LERO Notification Call Checklist and perform the necessary notifications. Id., p. 4 of 29 SS 5.1.3.b, 5.1.4. LILCO can perceive no substantial issue to litigate here.
The point is that it would be wrong to define the remand issue without analyz.ing the record that already exists to see if any further information is necessary. Indeed, to do so would violate the Commission's instructions to use the existing record "to the maximum extent possible." CLI-86-13,24 NRC at 32.
It is not true, as Interveners assert, that the existing record is of no use on the j
realism issue. For example, Suffolk County's witness affirmed LILCO's belief that the County Department of Fire, Rescue and Emergency Services would be the "best effort" County agency to take the lead for the County:
The De of Emergency Preparedness [now the DFRES)partment is the lead agency in Suffolk County for the handling of disasters like ice storms and hurricanes....
Tr. 9784 (Mayer). The only responsible way to undertake the realism remand, and the only way to comply with the remand order (CLI-86-13), is to analyze the existing l
record. LILCO's upcoming summary disposition motion will help that process.
1
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C.
The Interveners' Realism Briefs Are Incorrect on a Variety of Grounds The Interveners' two realism briefs, unlike the NRC Staff's, have two serious shortcomings. First, they avoid addressing the substantive issues. Second, they call for virtually endless litigation on each of those remaining issues. These and other short-comings are addressed below.
1.
The Interveners' Briefs Are Not Responsive to the Board's Order The Interveners' two briefs are simply not responsive to the Board's request for the parties' views. The Board requested the parties to express their views "on what are the matters to be heard...." Memorandum to the Parties, at 1 (Oct. 8,1987). The Board asked for the parties' views on, among other things, the " questions that are to be answered":
The remand by the Commission does not fully delineate the scope of the further inquiry that must be made, including the questions that are to be answered, the extent to which the existing record can be relied upon and where additional evidence need be taken. The Licensing Board seeks the views I
of the parties on these matters so that it can more precisely frame and focus the issues to be considered and facilitate the handling of the remand.
l_d. at 4 (Oct. 8,1987). Instead of addressing the Board's questions, in their first brief the Interveners said that the Board should decide the reception center issues, then con-vene a conference of counsel, and then make " informed rulings," presumably on what the issues for hearing will be. Then, instead of addressing their nine legal authority contentions, the Interveners addressed only one (Contention 5), and that by way of ex-ample, and provided a list of eight issues that is said to be "by no means exhaustive, but is provided by way of exF.mple on the issue of alerting the public." Interveners' October 30 Brief, at 4-5. The Interveners then recommended that they file new contentions "to supplement Contentions 1-10" three weeks af ter their proposed conference of counsel, with responsive pleadings to be filed over the following three weeks. In short, the
i Interveners proposed a minimum of six weeks af ter the conference of counsel before the Board would even be ready to rule on the admissibility of issues for litigation.E The Interveners' approach to the substantive issues reflects a pattern. Despite several opportunities to address the facts, the Interveners have simply postponed con-fronting them. For example, as LILCO recently pointed out, the Board in 1984 asked the parties to address the question "[i]n connection with LILCO's ' realism' argument, what effect would an unplanned response by the State or County have and would such a response result in chaos, confusion and disorganization so as to compel a finding that there is no ' reasonable assurance that adequate protective measures can and will be taken in the event of radiological emergency." Memorandum and Order Deferring Ruling on LILCO Motion for Summary Disposition and Scheduling Submission of Briefs on the Merits, at 3-4 (Oct. 22,1984). Instead of answering the Board's question, the In-tervenors told the Board that its invitation for further briefing "should be withdrawn."
Suffolk County and State of New York Response to ASLB Memorandum and Order Dated October 22,1984, at 88 (Nov.19,1984). The Interveners added that "no possible oenefit i
could result from such speculation...." I_d. at 89.
Similarly, when confronted with LILCO's Second Renewed Motion for Summary 1
Disposition, the Interveners said that in order to respond they would "need to comb lit-l erally thousarids of pages of the earlier emergency planning record." Suffolk County, State of New York, and Town of Southampton Motion for Conference of Counsel and for Licensing Board Clarification of Procedures or, in the Alternative, for Additional Time to Respond to LILCO's Summary Disposition Motion, at 8 (Apr. 7,1987). But when i
they filed their response they offered little in the way of specific facts and virtually nothing about how they would act in an emergency.
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Given the history of contention-filings in this proceeding, recited above, LILCO believes that six weeks is an optimistic estimate.
This pattern suggests two things. First,it reinforces the need to look first to the existing record, since it is difficult at best to get the Interveners to say what they would do in an emergency. Second, it reinforces LILCO's argument (above) that the In-l tervenors should not be permitted to write new contentions, since they have had ample opportunities to clarify the issues and have repeatedly resisted doing so.
2.
The Interveners' Proposals Call For Endless Litigation The Interveners' briefs on the realism issues also continue the Interveners'strat-egy of calling for a seemingly endless chain of procedures to treat every conceivable issue.E! As with all issues in recent months, the Interveners call for (1) a conference of counsel, (2) new contentions, presumably to replace the ones the parties have been litigating for four years, (3) further briefs on the contentions, including replies by the Interveners, (4) a ruling by the Board on the issues to be litigated, and (5) extensive dis-covery. These proposals are conducive of nothing but delay.
3.
The Interveners' View that the New Rule Has No Effect Is Wrong i
The Interveners argue that the new NRC rule on emergency planning has no f
legal effect (raising the question, "why did the NRC take the trouble to promulgate it ?").
If their argument is simply that the new rule does not radically alter the law from what it was in CLI-86-13, then LILCO tends to agree,E at least for the issues di-rectly posed here.
18/
Interveners assert that the CLI-86-13 realism remand is a separate matter from the " legal authority" contentions. Apparently this is a position taken to strengthen f
their argument that a whole new proceeding is needed. It is unfounded. Realism is and always has been part and parcel of the " legal authority" issues. Similarly, the Interve-nors appear to argue that a new, governmental plan is now at issue. But in fact the only plan is the LILCO plan.
M/
One thing that has not changed, for example, is the requirement that emergency planning for the plant must be adequate,52 Fed. Reg. at 42,087 col.1. The place of 4
emergency planning in the overall safety finding that the Commission must make is not affected, M., and public protection is not diminished, id, col. 2.
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4 The new rule is not a radical departure from CLI-86-13. The principal accom-plishment of the new rule is to affirm the presumption that state and local govern-ments, lacking any alternative plan, would follow the utility plan as the best alternative under the circumstances. The new rule also clarifles that this presumption may not be rebutted by arguments that the governments would respond ad hoc such as the Interve-l nors have made in this case. If the presumption is to be rebutted, it can only be by a timely, good-faith proffer of a better governmental plan. (The proffer of a worse gov-
)
i ernmental plan would not be " good ialth.")
]
But if the new rule did not significantly change the law as stated in CLI-86-13, it di_d overrule the analysis in this Board's September 17, 1987, denial of summary disposi-tion. The Board's September 17 order was based on accepting as litigable issues Inter-venor statements that they would not use the utility plan in time of accident. The new rule says quite plainly that the Interveners will use the utility plan, absent the proffer of a good-faith alternate governmental plan that would actually be used in an emergen-cy. Interveners have not proffered such a plan and are not likely to do so until the plant is licensed.E/
The Interveners argue, on pages 6-8 of their November 17 Brief, that, first, the Board is not required to presume that the State and County would follow the LILCO plan and, second, that the Board already decided the contrary in its September 17,1987 order. But the Interveners are incorrect. The textual basis of their argument is the
)
word "may" in the phrase "it may be presumed that... state and local officials would M/
Thus, the Interveners' open-ended characterization of the realism issue is incor-i rect. That characterization is as follows.
l The general scope of the proceeding has been cor-I rectly identified by the Board - that is, what would be the nature of an ad hoc, "best efforts" governmental response to
)
a radiological emergency at Shoreham....
Suffolk County, State of New York, and Town of Southampton Response to Board's Memorandum to Parties of October 8,1987, at 4 (Oct. 30,1987).
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. a generally follow the utility plan." 52 Fed. Reg. 42,086; see Brief of Interveners, at 7 (Nov.17,1987). It is clear, however, that the Interveners are misreading the regula-tion. The rule itself makes it quite clear that the presumption may be rebutted by an alternative plan - not, as the Interveners have tried to do, by simply saying they would respond ad hoc. The Federal Register discussion makes clear the rationale for the pre-sumption: that everyone agrees that responding according to a plan is better than re-sponding a_d hoc. Hence assertions that state or local officials would not follow am i
i plan, such as the Interveners have proffered, are contrary to the "best efforts" pre-1 sumption, contrary to common sense, and contrary to the new regulation.
l 4.
The New Rule Does Not j
Reauire Further Guidance The Interveners argue that the new rule cannot be applied in this case until l
FEMA and the NRC write implementing guidelines. This position is without foundation.
There is no general proposition of law that says that a regulation is not effective until guidelines are written to implement it. Nor does this particular regulation contain lan-guage staying its effectiveness pending issuance of guidelines. Guidelines are, by their i
nature, not binding; NRC Regulatory Guides, for example, need not be complied with if j
the applicant can show an alternate means of complying with the regulations. It fol-lows that the absence of guidelines cannot be used to postpone the application of a reg-
[
ulation.
j Moreover, judges are supposed to apply the law in effect at the time of decision.
Even an appellate court, deciding an issue on a record compiled under earlier law, applies the law at the time it decides:
)
The general rule... is that an appellate court must apply the law in effect at the time it renders its decision.
Thorpe v. Housing Authority, 393 U.S. 268, 281 (1969). A fortiori this Board should apply the new rule, not the law that existed before the new rule.
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5.
The Interveners Fundamentally Misapprehend Their Burden The Interveners argue that they are "in the dark" about what LILCO seeks to prove. This is incorrect. As LILCO pointed out on November 19 of this year, many of the same arguments LILCO ncW makes were briefed in detail three years earlier. See LILCO's Brief on Contentions 1-10 (November 19, 1984). The truth is, first, that LILCO's basic position has been clear for years and, second, that the remaining facts are in the Interveners' own hands.
6.
The Interveners' Approach to the Record Is Eccentric at Best The Interveners have argued, as noted above, that "the record compiled to date is likely to be of little use," Interveners' Response at 7 (Oct. 30,1987), because it was compiled based on a utility-only plan. But Interveners made this argument without tak-ing into account the Commission's new rule, which makes it clear that the utility plan is the one that will be followed (absent a timely and good-faith proffer of an alterna-tive). Hence the record on the LILCO utility plan is pertinent and useful.
Indeed, on September 14 the Interveners pointed out the extensive background that attends each of the remanded issues:
First, all the docketed matters are directly related to emergency planning issues with which this Board has been dealing for several years. The members of this Board are fa-miliar with the LILCO Plan, the complex factual, legal and procedural history and background of this proceeding, the factual and legal issues involved in the docketed matters, their interrelationships and their ramifications. Thus, this Board has the experience, and knowledge necessary to address the docketed matters in the most efficient and productive manner.
Response of Suffolk County, the State of New York, and the Town of Southampton to August 31, 1987 Licensing Board Notice, at 8 (Sept.14,1987). It is therefore inconsis-tent for the Interveners also to insist that the Board ignore the existing record.
The Interveners also argue that, at most, LILCO should be permitted to rely only on portions of the record it designates in advance. This unexplained proposal is both
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unreasonable and unsupported by the regulations. It is unreasonable for Interveners to require a specification by LILCO when (1) large parts of the record are pertinent, (2) the realism issue deals with matters known best to Interveners, and (3) any incom-
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pleteness in the record about what the Interveners would do in an emergency is the di-q rect result of Interveners' own deliberate acts of concealment.
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7.
The Interveners' Proposal for LILCO to Make Various f
Admissions is Unnecessary 1
The Interveners argue that the new rule cannot be applied unless LILCO first (1) acknowledges that "it has failed to comply with the Section 50.47(b) standards which i
underlie Contentio7s 1-10," (2) asserts "that its lack of compliance with each of the q
Section 50.47(b) requirements results wholly or substantially from the decision by New York State and Suffolk County not to adopt or implement an emergency plan for Shoreham," and (3) satisifies "the separate criteria set forth in subparts (1), (ii), and (iii) of the new rule." Brief of Interveners, at 3-4 (Nov.17,1987). The Interveners also sug-gest that LILCO should have to identify which version of the plan it intends to rely on and "specify its bases for believing it can satisfy subparts (1), (ii) and (iii) of the new I
rule."
These proposals appear to have been created by Interveners from whole cloth, and they have nothing to recommend them. LILCO does not see any substantialissues in. subparts (1) or (ii) of the new rule; to the extent those provisions need to be addressed 5 pro forma, LILCO will do so in its December 15 motion for summary disposition.
The version of the plan LILCO relles on will be the most current version; an emergency plan cannot prudently be frozen in time, and LILCO keeps improving its plan. The next revision, which LILCO is working on now, will tie up a number of loose 1
ends and address the matters on which the various Boards and the Commission have or-1
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dered changes to be made.
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V. A Prehearing Conference and a Schedule Are Needed LILCO agrees with the Interveners that a conference of counsel is needed.
There is a new regulation and a new Board chairman. The licensee argues that there are no litigable issues, while the Interveners argue that endless litigation lies ahead. A conference of counsel would be helpful.
In particular, a conference would be a useful means for setting a firm schedule for concluding this proceeding. LILCO and the Staff have already proposed schedules for the realism issue in their October 30 pleadings. But since LILCO now plans to move for summary disposition of the realism issue on December 15, the schedules proposed on October 30 without consideration of the new rule will need to be revised. Indeed, since LILCO believes that by December 15 it will have moved for summary disposition of all remaining issues,b it should be possible to resolve the remanded issues quite promptly on a schedule dictated by the Board's analysis of the summary disposition motions. This schedule might usefully be developed in a conference of counsel.
In the meantime, LILCO proposes that the Board order the beginning of discov-I ery on all the remand issues (realism, EBS, role conflict, and hospital evacuation plans) immediately. Particularly inasmuch as there is now a suspension on new filings with the Board until December 15, the parties can use the time to begin developing the f acts in case the Board decides that there are still litigable issues remaining af ter the sum-mary disposition motions are ruled on.
VI. Conclusion In short, LILCO requests that the Board take the following steps:
1 Deny the Interveners' November 12 Motion, particular-ly insofar as it seeks to eliminate summary disposition from the NRC process; 21/
The hospital evacuation plans issue is still unresolved. As noted above, LILCO plans to address that issue in the near future.
O i
" C7-Schedule a conference of counsel, preferably between December 15, 1987, when LILCO hopes to have com-l pleted its summary disposition filings, and Christmas; l
Order an immediate start of discovery on all issues that the parties believe to be within the scope of the re-manded issues; and Confront LILCO's motions for summary disposition as useful tools for narrowing and resolving the remaining issues.
Respectfully submitted, j
Donald P. Irwin 1 James N. Christman Mary Jo Leugers Scott D. Matchett Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: November 27,1987 l
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....._7..Nov 06 '87 08:08
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11/05/97 17103 NVS PSC ALBANU 518 474 7146 002 o
l STATE OP NEW YORK PUBLIC SERVICE CONMISSION November 5, 1987 This document summarizes today.
It is not a final orderthe unanimous Commission consensus reached reflects a Commission consensus,, and the final order may diffws.
It
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the views of any one not Commissioner.
- =***************
This rate case, like all LILCO rate cases in recent years, is dominated by the company's continuing struggle to license its shoreham power plant.
One need not take sides in the Shoreham debate to see that the long deadlock threatens Long Island's future power supply, as well as the Company's survival.
The record in this proceeding will not support a rate increase using conventional ratemaking principles.
In fact, traditional rate setting practices would not include the substantial revenues provided through the financial stability adjustment, the vehicle dealgned by the Commission to enhance LILCO's real earnings.
The Commission has used'its discretion in recent past cases to supplement rates derived through conventional racemaking with extraordinary race increases for the purposes of avoiding bankruptcy, improving the company's financial health and smoothing rate increases over time.
But "the grant of such cash flow, a practice we have followed to a lesser degree for other utilities with large const'uction budgets, is intended to be a tempuracy e
mechanism with the prospect of discontinuance when the plant under construction is completed and enters service.
It has been justified
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Nov c6 '87 08:09 11/05/67 17:04 WS PSC ALBAW 518 474 7146 003 1
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by a general conclusion that the costs to customers are less than those resulting from not allowing the increased cash flow.
That fundamental cent is net clearly met for a further increase at this
- time, furthermore, it is now clear that the continued provinien nf extracedinary cash flow has had unintended and unfortunate consequences.
Specifically, the continued provision of cash ficw enhancement has pecionged a financially debi1Leating deadicek cver Shoreham.
That deadicek and uncertainty have jeopardized the fundamental goal of electric utility regulation the assurance of a reliable and reasonably priced power supply.
The uncertainty raises costo, cape LILCO's financial resources, inhibits power supply t
planning, consumco top management attention and poisons the company's relationship with its customers and the government that they elect.
It is n no one's interest for this situation to continue.
The Commission's power to effect change lies in the policies that it fosters in the setting of rates ovee which it has discretion.
Our rotemaking policies must be designed to bring stability to c.lectric price and supply on Long Island.
We have in the past used the PGA as the principle mechanism Cut pacvidirig LILCO with enwh flow ensistenew.
This sdjustment makeo raneo higher now and lower in the future than under normal racemakiny practices.
Thia adjustment is entirely discretionary and can be increased, reduced or eliminated if any such change is in the
L TOV 06 '87 08:09
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I 1145/e7 17:04 NVS PSC ALBANV 516 474 7146 004 l
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t public interest.
In this case, LILco and staff urge that we
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increase the FSA; other parties u:ge a decrease.
Neither cource is L
now in the publin interest.
I The record does not show a compelling need for any increase I
j in the FSA at this time.
Unlike the company's last two rate caces, f
l there is neither an imminent enreat of bankruptcy nor a strong need to support financing with a cash flow enhancement.
Gince the need is not compelling, an increase in the FSA at this time would i
indicate commission acceptance of the continuing uncertainty flowing from the deadlock over shoreham.
It appears that Shoreham cannot be counted on to me in operation bvCure Lne 1989 summer peak and it to i
conceivable that 1
the plant m y ne'ver operate.
Acceptance cf the a
proposed increase in the TSA at this Lime would not encourage LILCO's serious attention to the development of alternative means to i
catisfy Long Island's need for power in the short and long term future.
The power supply planning problem is particularly acuto, I
for LiLCO's reserve margins are already below desirable levels, and l
its oil dependence is excessive.
While the Company deservco credit i
toe the hign reliability of its units during the i
record 1987 summer peaks, the situativn remains precarious, furthermore, it to impouulble to' proceed wqually vigorously in preparing for Shornham and non-Shoreham futures.
In a future without Shoreham, the amounts to be paid to buy generating capacity or to encourage energy j
conservation and lead nanagement are higher than in a future in
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11/05/97 17105 HUS PSC ALB4 N 518 474 7146 005
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which Shorenom is assumed to come on line soon.and operate reliably.
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To find the equivalent of 82c megawatts by the early 1990's will not i
be easy and the task cannot be uwnsibly pursued in an atmosphoro of
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prolonged uncertainty over Shoreham.
The extraordinary level of l
public and governmental oppoultion to this plant is a real and f
consequential forew under our system of government.
It will
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I continue Whatever actions we or the company may take.
The company may teel deeply justified in its past pursuit of the plant, but its fortmost duty la tu wupply power en reasonable terms that are acceptable to the public that it serves as well as to its stockholders.
For these reasons, we find no basis for increasing rates at this time nor for inctwaning the financial stability adjustment uhile the deadlock over Shureham continues.
Neither should entes now be reduced, for LILCO should be given a reasonable period of t!me to reevaluate end readjust its goals.
We will review this matter again in April tu swe if any race revision upward or downward is then in ordus.
The record of this proceeding will be incorporated into the new docket which will ccmmence on April 4,
1968.
Hearings will be limited to facts arising since the ciocinq of thlm record.
During the period bwtween nou and April, we trust than the parties to the shorenam matter will break the long deadioek so that the Long Isiend cumstiustity can look to the future with assurance as to their power supply and that wuch supply be safe and adequato and m_____._
s NOV 06 '87 08:11 1
sa<ms co sv.as n.c sce nLarm sse od esac 4
soc I be offered at reasonable rates.
We empnasize that we are not now taking sides as to the merits of the company's effort to license Shoreham, nor are we masing any decision as to the future rate treatment of unrcoolved Shoreham issues.
Indeed, LILCO may seek in April tu dwmunstrate that there is a clear baulu for this commission to have high confidence that no further major obutacles exist to having Shoreham operate to meet the 1989 peak season and beyond.
Such confidence does not presently exist.
Moreover, unsuccessful pursuit of this option could retard alternative power supply planning in unacceptsblo ways, j
j Just sw LILCO needs to reevaluate ir.e goals, 1
it is cico tmportant to real14w that denial of recovery of prudent Choreham investment or some equivalwnt thereto if the plant does not operate i
nas the effect of forcing LILCQ to continue its efforts to licence the plant.
LILCo will not abandon Shoreham if enis action precipitates the company's demise.
While Lt is too soon to commit i
to specific astumaking treatment, j
the underlying need.for principles i
t.n a t harmonize the Company's economic self-interest with the desires f
of itu cuwtumwam must be reccgnized if ene deadlock in to be broken I
in Cne context of PSC tegulation of LILCO short of bankruptcy.
With these understandings, and with the Shoreham struggle Over, it uhuuld Lv possible to address Long Island's power supply needs and LILco's financimi health on a constructive basis involvinq
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all relev4nt governmental entitles.
We remain ready to assist i
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ROV 06 '87 08:11 P.7 3
11/05/97 17:06 M PSC ?.BANU 518 474 7146 007 througn mediation or other means - in the resolucion of these problems.
A few final notes regarding the April proceeding arc in orders 1)
As part of its pteflied testimony in the reopened dCcket L LCO must show that it h4w developed and will impicmont reasonable plans to provide reliable electric service without generation from the shoreham powwr plant.
A significant part of that plan should be an ambitious conservation /lond management effort and an pursuit or cost-justified independent power production or other sources.
2)
The Company should provide evidence of pr'egrecs in implementing the productivity improvemwnL recommendations of Arthur Young, Inc.
Following many of these 215 recommendaciens -- in consultation with our staff -- should permit the company to substantially improve its financial viability.
3)
Progress should bw iumde toward establishing LILCO's Boarc of Directors as a significant factor in overseeing the Company in 4 manner consistent with LILCO's broad public onevice obligations.
4
4 LILCO, November 27,1987 DDCKC(Cn USNRC 8 % All.53 CERTIFICATE OF SERVICE Frict t OCKCit$c;h'j$h' E3 RANCH In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S ANSWER TO FIVE RECENT PLEADINGS ON REALISM AND
SUMMARY
DISPOSITION were served this date upon the following
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by hand or telecopier as indicated by one asterisk, by Federal Express as indicated by
)
two asterisks, or by first-class mail, postage prepaid.
i James P. Gleason, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers, Rm. 407 4350 East-West Hwy.
Atomic Safety and Licensing 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 mallroom)
Bethesda, MD 20814 Mr. Frederick J. Shon
- Atomic Safety and Licensing Herbert H. Brown, Esq. **
Boat' d Lawrence Coe Lanpher, Esq.
U.S. Nuclear Regulatory Commission Karla J. Letsche, Esq.
East-West Towers, Rm. 430 Kirkpatrick & Lockhart 4350 East-West Hwy.
South Lobby - 9th Floor Bethesda, MD 20814 1800 M Street, N.W.
Washington, D.C. 20036-5891 Secretary of the Commission Attention Docketing and Service Fabian G. Palomino, Esq. **
Section Richard J. Zahnleuter, Esq.
U.S. Nuclear Regulatory Commission Special Counsel to the Governor 1717 H Street, N.W.
Executive Chamber Washington, D.C. 20555 Room 229 State Capitol Albany, New York 12224
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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
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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 Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224
-l Albany, New York 12223 Martin Bradley Ashare, Esq. **
i Stephen B. Latham, Esq. **
Eugene R. Kelly, Esq.
Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street H. Lee Dennison Building i
P.O. Box 298 Veterans Memorial Highway
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Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee 3
Agency P.O. Box 231
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26 Federal Plaza Wading River, NY 11792 i
- 7. M James N. Chr ;tman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: November 27,1987
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