ML20237E537
| ML20237E537 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/22/1987 |
| From: | Lanpher L, Latham S, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#487-5112 LBP-87-32, OL-5, NUDOCS 8712290049 | |
| Download: ML20237E537 (30) | |
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1p UC 23 E2' December 22, 1987
- pt itd f UNITED . McM [r M ICA NUCLEAR RE 'DpnECCOMMISSION Before the Atomic Safety and Licensino ADoeal Board
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In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
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SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON
SUMMARY
RESPONSE TO LILCO'S MOTION FOR CERTIFICATION TO THE COMMISSION OR EXPEDITED APPEAL BOARD REVIEW OF LBP-87-32 On December 7, 1987, the Exercise Licensing Board issued a Partial Initial Decision ("PID"), ruling that the Shoreham Exercise of February 13, 1986 (" Exercise"), did not comply with the requirements of 10 CFR Part 50, Appendix E, S IV.F.1. LILCO filed a notice of appeal on December 17 and on December 19 moved this Board to expedite appellate review or, in the alternative, i
to certify the matter to the Commission for decision.1/ The Motion was received by the Appeal Board and parties on l
I 1/ LILCO's Motion for Immediate Certification to the Commission of Issues Presented by LBP-87-32 or for Expedited Briefing, Argument, and Decision by the Appeal Board, December 19, 1987 (the " Motion").
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December 21. The Appeal Board, by telephone, directed the Governments to hand-deliver their response by 3 p.m. December 22.
The Governments cannot respond comprehensively to all aspects of the Motion on one day's notice.2/ Further, given this brief response time allotted them by the Board, the Governments do not discuss the " law" regarding certification or expedition of !
appeals, since it is well-established and known to this Board.
For the instant purposes, it is sufficient to note that the i
certification power is one which the Appeal Board and Commission i utilize sparingly. It is only to be used when compelling reasons :
are set forth. Similarly, it is clear that expedition of appeals '
particularly on a tight schedule such as LILCO has proposed --
should only be ordered when the facts truly compel extraordinary relief.
The Governments' response set forth below makes clear that the Motion must be rejected. Notwithstanding rather extravagant claims of potential future harm, LILCO, in fact, has failed completely to demonstrate the existence of the kinds of compelling circumstances required for certification or expedi-tion. Indeed, the Motion makes clear that rather than certifica-tion or expedition, this is a case which merits the most thorough 2/ The Governments object to the one-day deadline for responses imposed by the Board. LILCO received the PID on December 7 but took 12 days to prepare and file its 29-page Motion. Even LILCO's strident claims of a need for expedited treatment do not justify limiting the Governments' response time to one day.
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and careful appellate review, not the hurried, skeletal review urged by LILCO.
In addition, the Governments demonstrate below that LILCO's Motion is premised upon a view of the facts and law which has no basis. For instance, in the Motion LILCO creates the impression that its receipt of the December 7 PID provided the first inkling to LILCO that it might need a new exercise in order to obtain a license. In fact, however, the record is clear that LILCO has been on notice for at least 10 months that another full exercise would be required before it could ever qualify for a license.
LILCO's failure to request such an exercise until now, immedi-ately prior to the expiration of the 2-year exercise period, cannot justify the granting of LILCO's demands for expedited treatment and relief. If any urgency exists at all -- and we demonstrate below it does not -- it is solely a result of LILCO's own decision to gamble on the timing, and results, of the Exercise litigation and to ignore what has been obvious to everyone for almost a year: under the regulations, and in light of FEMA's review of the February 1986 Exercise, an additional exercise will be necessary prior to licensing of Shoreham.
In sum, LILCO is before this Board claiming imminent harm but, in reality, asking for a favor. LILCO played a waiting game, deliberately not starting the process of requesting and scheduling a new exercise, in the apparent hope that the Exercise i
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Board would issue a favorable decision, issue it prior to February 1988, and that all other aspects of this licensing proceeding would be resolved in LILCO's favor by February 13, 1988. LILCO played poker and it lost. Its loss provides no justification for last-minute action by an NRC adjudicatory tribunal to rescue LILCO from the consequences of its own mistaken judgment. LILCO must accept the consequences of its gamble. It should not be allowed to burden the other parties or this Board by its extravagant and unsubstantiated allegations of harm.
- 1. The Existence of Substantial and Novel Legal and Factual Issues Does Not Support Exoedited Review or Certification The Governments do not dispute that the PID addresses significant issues. Appendix E, S IV.F.1, establishes mandatory criteria which must be satisfied before a license above 5 percent power can be authorized. The Exercise Board, in a case of first impression, interpreted Appendix E and thus established important law regarding the requirements of that regulation.
i But just because this is a case of first impression -- and 1
juct because LILCO lost -- does not make this case appropriate for either certification or expedition. To the contrary, the facts concerning the PID compel the conclusion that this matter merits the most careful appellate review, rather than the '-ind of abbreviated process advocated by LILCO.
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Contentions Ex 15/16 do not involve purely legal issues.
Rather, they involve mixed questions of law and fact, developed '
over the course of an extensive evidentiary hearing and post-trial briefs. Indeed, the post-trial briefs on Contentions l
Ex 15/16 alone covered 258 pages.3/ Thus, this is not an instance where a narrow or purely legal issue is presented for '
decision, such that it might be appropriate for direct Commission review. Rather, this is a case in which an extensive factual and legal record was developed concerning the proper interpretation of a critical regulatory requirement in the specific context of the facts of the Shoreham Exercise.
Furthermore, the complexity of the " issues" as posed by LILCO (agg Motion at 9-10) underscores the need for careful Appeal Board review, even if Commission review were to follow.
In the Governments' view, the Exercise Board did a reason-ably good job of addressing the relevant issues; however, the Board rejected some of the Governments' arguments and failed to address others, having already ruled in the Governments' favor.
Egg, e,o., PID at 19. In opposing LILCO's appeal, the Govern-ments will address not only the Board's bases for its rulings as sat forth in the PID, but also the many other bases which exist 3/ LILCO's it:itial post-trial brief of August 3, 1987, devoted 54 pages to Contentions Ex 15/16; the Governments' August 17 brief devoted 122 pages; the Staff's brief of September 11 devoted 30 pages; and LILCO's reply findings of September 25 devoted 52 pages.
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to support the result which was reached. It is appropriate to make those arguments before the Appeal Board in support of the result achieved below and for the Appeal Board to review and, as necessary, address those arguments in coming to a decision, which then can be presented, if necessary, to the Commission for its discretionary review. This is precisely the function which the Appeal Board is intended to serve, as the appellate adjudicator which can screen, focus, or narrow issues before the Commission decides whether to undertake review.
For many of the same reasons, this is not an instance where expedition is warranted. The quality of the appellate briefs which the Appeal Board can expect will suffer significantly if these important issues of first impression must be addressed on a hurried-up basis. The record is extensive and the need to address novel issues in a thoughtful and careful manner counsels that the NRC's normal briefing periods are the minimum which are appropriate. The briefs which have previously been filed have addressed regulatory history going back to 1980, the opinions of many expert witnesses, and the proper interpretation of Appendix E. That record must be reviewed yet again, in light of the Licensing Board's December 7 decision, in order to present these issues in the most sharply focused and persuasive way to this Board. This Board and the parties would be ill served by briefs which must be put together in haste.
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- 2. Need for Another Exercise The LILCO Motion proceeds from the apparent premise that it was not until December 7, 1987, that LILCO learned that it might need another exercise. Thus, LILCO asserts that extraordinary emergency relief is necessary to prevent the 1986 Exercise from becoming obsolete. In making this argument, however, LILCO has ignored the regulations and has failed to inform this Board of material facts.
First, LILCO has always known that recardless of the Exercise Board's decision, under Appendix E, it would need another Shoreham exercise by February 13, 1988. Such an additional exercise might have been an initial licensing exercise or the first biennial exercise, depending upon the status of licensing, but it clearly had to occur by February 13, 1988. Egg 10 CFR Part 50, Appendix E, S IV.F.1 and 3. LILCO has ignored this requirement by not even recuestino a new exercise. LILCO acknowledges that it takes about 4 months on average for FEMA to schedule an exercise. Daverio Aff. 1 4. Thus, LILCO should have sought an exercise no later than early October. Yet, now that it has slept on its obligations, LILCO asks this Board to grant extraordinary relief. The Board should reject this plea.
l Second, LILCO has known at least since January 27, 1987 --
almost 11 months ago -- that the results of the February 1986 l 1
Shoreham Exercise were sufficiently negative that FEMA required j i
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another full exercise before licensing. This was the testimony of the FEMA Region II, Regional Assistance Committee ("RAC")
Chairman, Ihor Husar, during a deposition on January 27, 1987.
Egg Tr. 104-105. (A copy of the pertinent portions of this transcript are attached hereto as Attachment 1.)A/ Further, in June 1986, during the Exercise hearing, a FEMA witness confirmed that an additional fully-integrated exercise would be required for Shoreham in order to eliminate the deficiencies and other problems identified by FEMA during the February 1986 Exercise.
Egg Tr. 7921, 7950-51 (Keller).
Accordingly, it is grossly misleading for LILCO to suggest to this Board that issuance of the December 7 PID was some sort of critical turning point, or eye-opener, which justifies or entitles LILCO to emergency relief. Far from that being the case, LILCO has known for a long time that it would need to seek !
an additional exercise. For some reason known only to LILCO, however, LILCO apparently decided that it was in its interest not i even to begin the process by requesting that an additional exercise be arranged. LILCO must live with its decision, and cannot now, at the last minute, attempt to create an emergency, and demand extraordinary procedures and actions by this Board and 4/ Indeed, the December 15, 1986, RAC Review of LILCO's proposed " fixes" to the deficiencies and problems identified during the Exercise, made clear that FEMA could not evaluate the adequacy or implementability of such fixet except in another exercise.
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1 the other parties simply because of its own mistaken tactical i
decisions.
The foregoing discussion also compels rejection of a related l l
l LILCO argument. LILCO urges, particularly in the affidavit of l Mr. Daverio, that if the Appeal Board or Commission were to rule quickly and favorably on its appeal, then any remedial exercise which may be required due to the negative results of the February 1
1 1986 Shoreham Exercise can be held before February 13, 1988.
That is unfounded speculation. First, as noted, FEMA has already clearly stated its position: there must be an additional fully-integrated exercise before Shoreham can be licensed. LILCO's suggestion that a limited, remedial-type drill would be suffi-cient is fantasy. Second, Mr. Daverio's suggestion that a remedial exercise, even assuming that would be sufficient, could be planned, conducted, and reviewed in a matter of several weeks, is also unsupported speculation. Egg Daverio Aff. V 5. We are not aware of FEMA's having been able to shorten its planning and review processes to much less than 75 days, if that; and, Mr. James Baranski, an employee of the New York State Radio-logical Emergency Preparedness Group and a Government witness on Contentions Ex 15/16, informs us that 8-10 weeks is the norm for remedial exercises.5/ f 5/ Due to the short response time, an affidavit could not be obtained from Mr. Baranski.
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- i Finally, LILCO appears to treat the February 13, 1988, date by which the 1986 Exercise will become " obsolete" as little more than a nuisance. Thus, it repeatedly speaks of it as a
" presumptive" 2 year exercise requirement (Motion at 2, 26, 27)
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and talks about getting an " extension of the effectiveness of the February 1986 exercise . . . " as if that were some administrative or routine matter. Motion at 27. The Board must ignore these I LILCO assertions. They have no basis. The regulations are clear: even without the December 7 PID, as of February 13, 1988, LILCO will need an additional exercise in order to obtain a license. Neither LILCO nor this Board can presume that LILCO can obtain an exemption from that requirement, particularly since it was only recently (May 6, 1987) that the 2 year (vs. 1-year) rule was enacted. In enacting the 2-year rule, the NRC stated:
l The new rule strikes that balance by reauirino a full participation emergency planning exercise within two vears prior to the licensing of a power plant . . . .
52 Fed. Reg. 16824 (1987) (emphasis added). Thus, there is no basis to suggest that LILCO's February 1986 Exercise can serve as i the licensing exercise after February 13, 1988. LILCO has known that since May 6, 1987; it could have sought a new exercise -- or even made a contingent request for one -- much earlier. It did not. LILCO must live with that decision. It is not this Board's job to bail LILCO out after its own mistaken judgment.
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- 3. Under No Circumstances Could LILCO Be Eligible for a License Above 5 Percent Power by February 13, 1988 Another premise of LILCO's Motion is that a rapid Appeal Board or Commission decision in LILCO's favor on Contentions Ex 15/16 will permit licensing of Shoreham above 5 percent power before February 13, 1988, when the Exercise becomes obsolete.
LILCO thus suggests that all remaining emergency planning issues which are outstanding as of this time could be resolved in LILCO's favor orior to February 13, 1988. This Board must reject this LILCO argument; it is pure fantasy. Extraordinary relief cannot be based on fantasy.
Briefly, we summarize below the issues which would have to be resolved in LILCO's favor by February 13, 1988:
- a. Exercise Proceedino. LILCO omits to inform the Board that FEMA found four " deficiencies" in LILCO's February 13, 1986, 6xercise performance. Tr. 7610, 8651-52 (Keller); 8644, 8448-49, 8646 (Kowieski). Those deficiencies, according to FEMA, preclude a finding of reasonable assurance (FEMA Ex. 1 at 8) and thus constitute " fundamental flaws."
In the ensuing Exercise litigation, the Governments urged the Exercise Board that there were many additional " fundamental flaws" which also preclude a reasonable assurance finding. Egg Suffolk County, State of New York, and Town of Southampton i x ----------______________j
1 Proposed Findings of Fact and Conclusions of Law on the February 13, 1986 Shoreham Exercise, August 17, 1987. Even the NRC Staff concluded that the Exercise results revealed three
" fundamental flaws" which preclude a reasonable assurance finding. Egg NRC Staff Proposed Findings of Fact and Conclusions of Law on the February 13, 1986 Emergency Planning Exercise, Sept. 11, 1987, at 186-87. Accordingly, in the Exercise litiga-tion, all parties except LILCO have determined that quite aside from the Board's decision on the scope of the Exercise in the December 7 PID, the Exercise results do not support licensing l
absent a further successful test of LILCO's capabilities.
1 No one knows at this time how the Exercise Board will I
resolve these remaining Exercise-related issues. It certainly.
cannot be assumed, however, that they will be resolved fully in LILCO's favor, particularly since the Staff, FEMA, and the Governments are all on record urging that the Exercise results do not support licensing. Further, since it is FEMA that is in charge of designing the scope of any subsequent exercise, it is clear that any subsequent exercise will have to include more than just little " drills," such as LILCO might want for a remedial exercise. FEMA has made clear that any subsequent exercise would have to be a " fully integrated" one, involving activation of all major response locations and response activities. Egg Tr. 7921-24 (Keller, Kowieski, Baldwin). Clearly, this cannot occur prior to February 13, 1988.
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- b. OL-3 Board. The OL-3 Licensing Board presently has before it many issues which must be resolved before any license above 5 percent power can be authorized. It.is inconceivable that all of these issues could be resolved in LILCO's favor by February 13, 1988, absent a gross deprivation of the Governments' rights to fair adjudication. For instance, just this past weekend, LILCO filed a 495 page compendium of 7 motions for summary disposition of legal authority issues. Egg LILCO's l
Motions for Summary Disposition of Contentions 1-2 and 4-10, December 18, 1987. It is clear that responses to such motions and, thereafter, the Board's consideration of and rulings on such motions, will take substantial time -- probably well beyond February 13, 1988. It is also significant that the Governments and the Staff (and, we believe, the OL-3 Board as well), have taken the position that the newly-amended version of Section 50.47(c)(1) requires a hearing on some issues. Thus, l even a decision in LILCO's favor on its seven realism summary 1
disposition motions would not end the matter.
At the same time that those " legal authority" issues are i
pending, multiple other issues are also pending for decision:
the adequacy of LILCO's new emergency broadcast system ("EBS") )
l plan; the adequacy of LILCO's new school evacuation plan; and the adequacy of LILCO's new hosp!tal evacuation plan. Further, several Plan deficiencies identified in the original April 17, 1985, Partial Initial Decision on emergency planning still exist j
and LILCO has taken no steps to attempt to reopen the record to have those issues addressed. And, there has yet to be issued any decision on the reception center issues which were litigated earlier this year.
Finally, in recent' filings with the OL-3 Board, LILCO has announced that it will soon issue Revision 9 of its offsite emergency plan. This revision apparently will address many of the issues which are in active litigation, including the EBS, school evacuation, and hospital evacuation matters. It has not yet been released, submitted to the NRC, or sent to FEMA for review. Clearly, this new version of LILCO's I'lan will require careful review, particularly insofar as it relates to the many issues in litigation.
In short, there is no basis upon which one could find that all of the outstanding emergency planning issues could be I
resolved -- and all in LILCO's favor -- by February 13, 1988. 1 l
Thus, even if this Board were to expedite its review or certify .{
the' Exercise scope issues to the Commission, and even if those i
Exercise scope issues were resolved favorably to LILCO, the {
February 1986 Exercise still would become obsolete. Accordingly, the Motion is based upon factual assertions and assumptions which j t
are incorrect. LILCO's extravagant claims of harm resulting from ,
i the PID are thus clearly without any factual basis. The Motion l
must be denied.
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- 4. LILCO Has Misstated Evidence from the Exercise Record It is not the Governments' purpose in this summary response to attempt to respond to LILCO's many arguments concerning the correctness of the Exercise Board's PID. The PID's conclusions are amply supported by the record.1/ Nevertheless, certain matters must not be allowed to go unanswered even at this prelim-inar stage.
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- a. LILCO asserts that the 1986 Exercise had been
" intended to meet the Commission's relicensing requirements for a ' full participation' exercise . . . . Motion at 1. Egg also id. at 3. LILCO thus attempts to create the impression that the Exercise Board has refused to follow the Commission's guidance.
LILCO has no basis for this assertion. Indeed, the facts are to the contrary since the Commission, when it requested FEMA to conduct the Exercise, said: "The Commission does not disagree with the view that an exercise of the LILCO Plan could yield meaningful results, even thouch such an exercise may not satisfy all of the requirements of the NRC's regulations." Egg Memorandum of June 4, 1985, from S. Chilk to William Dircks, directing that an exercise be requested, set forth as 5/ The Governments briefed Contentions Ex 15/16 before the l
Exercise Board. If the Appeal Board wishes to review substantive reasons which support the PID, it should review pages30-153 of Volume I of the Governments' August 17, 1987 Proposed Findings of Fact and Conclusions of Law on the February 13, 1986, Shoreham Exercise. In that portion of the Governments' Findings, it is demonstrated that there were ample and persuasive bases for the Board to find that the Shoreham Exercise did not comply with Appendix E.
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Attachment 1 to LILCO August 3, 1987 Cont. Ex. 19 Brief (emphasis added).-
- b. LILCO urges that if.the Exercise Board had reviewed footnote 4 of Appendix E, particularly that portion referring to " major observable portions" of offsite emergency plans, then the Board would have reached a different result on Contentions Ex 15/16. Egg Motion at 5, 6, n.9, 9, 11, 17. LILCO is wrong. If the Board had reviewed that portion of footnote 4, it would have had an additional basis to rule for the Govern-ments. This is because the evidence, even that provided by FEMA's witnesses, supported the conclusion that major observable portions of the LILCO plan were omitted from the Exercise. Egg, e.o., Tr. 7537, 7673 (Kowieski) (ingestion pathway and recovery and reentry are major observable portions of the emergency plan);
7663-64 (Keller) (availability of transportation resources for special facility residents constitutes a major observable portion i
of the emergency plan),
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, c. LILCO asserts that the record does not support the Exercise Board's conclusion that there needs to be a test c l coordination between LERO and the EBS radio station. Motion at
- 18. LILCO is flat wrong; the record contains extensive data to support precisely such a finding. For example, the Governments' witnesses pointed out instances in their experiences in which EBS radio station personnel performed unsatisfactorily, failing to
coordinate the sounding of sirens and the airing of test messages within a close timeframe. They further emphasized that in order to get an EBS message broadcast, there are multiple human inter-actions that must occur. Ega NY Ex. 1, at 44, 46, n.18, 19; Tr. 7171 (Baranski); 7173 (Minor); 7174-75 (Papile). And, FEMA's witnesses acknowledged that in other Region II exercises, test EBS messages are actually aired, thus demonstrating the ability to perform necessary administrative and coordinating functions.
E.o., Tr. 7560, 7564 (Kowieski, Keller); 8655-56 (Kowieski). It is clear, therefore, that there were persuasive bases in the record to support the Board's conclusion.
- d. LILCO asserts that FEMA, "in an exercise of its expert discretion," decided not to include ingestion pathway testing. Motion at 19. That is untrue. FEMA personnel made.
clear that FEMA omitted ingestion pathway testing primarily in reliance on an NRC suggestion that FEMA concentrate on the 10-mile plume exposure EPZ. FEMA Ex. 5, at 125; Tr. 7525, 7539 (Kowieski); N.Y. Ex. 1, at 147-48.
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S. Imoact of Decision on Other Exercises LILCO argues that unless the PID is reversed, the ruling will have severe potential impacts on other exercises. This is more speculation by LILCO, and cannot form the basis of a decision by this Board to grant the extraordinary relief l requested by LILCO. )
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First, while the Exercise Board's decision clearly does interpret the requirements of Appendix E insofar as first-time exercises are concerned, it turns significantly upon the facts and evidence developed in the Shoreham proceeding. Thus, it is simply speculation for LILCO to assert that that fact and case-specific decision will have a severe impact on any other proceeding.
l Second, assuming arcuendo that the PID does have the I I
potential to impact other proceedings,~it is clear that by following normal adjudicatory procedures on appeal, there will be the opportunity for the Appeal Board, and subsequently the Commission if it so decides, to give the decision close and careful review. The potential impact on other plants Coes not require expedition.or certification.- If anything, the potential impact supports _following the rules and thus ensuring the best and most thorough possible briefing. .
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- 6. Lencth of Litication LILCO urges that unless this Board or the NRC immediately reverses the PID, LILCO will face "an infinite cycle of a [ sic]
2-year delays in ultimate licensing of Shoreham . . . .
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l at 8. LILCO also states several times (14. at 7, 8) that this failure to issue a prompt reversal would be to " condemn" LILCO purely by the passage of time.
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This Board must ignore such hyperbolic rhetoric. The extensive litigation related to the Shoreham Exercise is the result of many factors, none of which support the relief requested by LILCO. First, this was the first detailed exercise litigation held subsequent to the UCE decision. It is not surprising that the initial exercise litigation experience would be lengthy.1/ Second, this was the first exercise of a utility emergency plan. As such, the Exercise involved some unique factors, which again contributed to more lengthy proceedings.
Finally, the Exercise results themselves compelled lengthy litigation: there were many LILCO deficiencies identified by FEMA, and the Governments' own expert analyses and evidence demonstrated even more serious problems with LILCO's Plan. It took extensive litigation to set forth all the relevant facts '
pertinent to the exercise performance on February 13, 1986. The fact simply is that the Shoreham situation is especially complex, and it remains so because LILCO has chosen repeatedly to pursue extreme ideas and actions.
There is no basis other than LILCO's unsubstantiated rhetoric to suggest that every post-exercise litigation will necessarily involve 2 years of trial and briefing. Such a period ,
1/ The Governments, in fact, took the lead in trying to get '
i this proceeding started in the first place. Thus, on February 24, 1986, only 11 days after the Exercise, the Governments sought initial guidance on how to proceed after the Exercise. Egg Motion of Suffolk County, the State of New York and the Town of Southampton for Ruling Concerning Proceedings Related to the Shoreham Exercise, Feb. 24, 1986. The NRC took until June 11, 1986, to provide such guidance.
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may be required, where the exercise results are similar to those negative results experienced at Shoreham. The period may be much shorter, if an applicant demonstrates greater qualifications.
But, the question of how long future exercise litigation may take is not before this Board. The facts of each case and the rules of due process will decide that matter.
- 7. The Acceal Board Should Conduct the Initial Review l
In the preceding discussion, the Governments have documented reasons why certification should not be granted. One additional reason should be mentioned. This Board is somewhat familiar with Contentions Ex 15/16, having presided over FEMA's attempted interlocutory appeal of the admission of Contentions Ex 15/16.
This resulted in ALAB-861. This familiarity with some of the ,
basic issues which are presented should assist in focusing this appeal.8/ It makes no sense, therefore, to turn the matter over l to the Commission before the Appeal Board does its job.
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8/ In this regard, the Governments note that during the ALAB- I 861 oral argument on February 5, 1987, Judge Edles stated as follows:
The Commission has drawn a distinction as far as I can read our regulations between what you do at a full participation before the license is issued and what you have to do on a continuing basis.
Tr. 26. This statement belies the repeated LILCO rhetoric that j there is no possible basis for the Licensing Board's decision l that an initial licensing exercise requires an exercise of different scope than subsequent biennial exercises.
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- 8. sThe' Appeal Board Should Reject LILCO's Attempt to Insert Economics Into This Proceedino LILCO has discussed and attached to its Motion a recent New York State Public Service Commission ("PSC") decision rejecting a LILCO. rate increase request. . Egg Motion at 27-28 and Attachment 3. LILCO attempts to.use the PSC decision as a means-of getting the NRC to alter its orderly procedures and to provide extraordinary relief to LILCO. This is improper.
The PSC has its area of exclusive ' jurisdiction. It is of no concern to the NRC. . LILCO's attempt to get the NRC to take action based on what the PSC has done or may do, is nothing but a thinly-veiled LILCO attempt to have the NRC rely on economic' factors in its review of safety issues. This Board.is charged with resol';ing safety issues, not with relying on the slanted view of economics proferred by LILCO. Egg Union of' Concerned Scientists-v. Nuclear Reculatory Commission, 827 F.2d 108 (D.C.
Cir. 1987).
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- 9. LILCO's Schedule Must Be Reiected l
This Board should reject LILCO's-plea for an expedited briefing schedule. First, the abundance of Shoreham-related work which already needs to be performed makes it unfair to add the additional burden of expedited briefing. For example, as noted above, the Governments have just received from LILCO a 495 page compendium of. summary disposition motions on the so-called " legal authority" issues. The Governments also have just received a LILCO summary disposition motion on hospital evacuation issues.
There is a limit to the experienced resources available to work on these matters.
Second, LILCO's proposed schedule is prejudicial to the Governments. Instead of the normal 30 days to respond, LILCO would allow the Governments only a total of 9 days to' respond, part of which involves the New Year's national holiday. Such a schedule does not foster careful briefing, particularly given the other work that has to be performed and the pre-scheduled holiday absences of certain attorneys. Rather, it reveals the air of frivolity with which LILCO addresses the instant safety issues and it fosters haste in disregard of the seriousness of these issues. And then, LILCO would allow the Board as little as only 3 days to digest the Governments' brief prior to oral argument.
This is a parody of what a serious administrative proceeding requires.
The Governments reiterate that LILCO waited 12 days to file its Motion'after receipt of the PID. LILCO offers no justifica-tion for this delay and should not now be rewarded by artificially constraining the time available to other parties to comply with the rules. Further, through its own behavior, LILCO could have shortened the briefing schedule by filing its Notice of Appeal immediately after the PID was issued. Egg 10 CFR
p 5 2.762(a)-(c). Again, however, LILCO offers no justification
'f'or its procrastination but, instead, now comes before this Board on the virtual eve of Christmas asking for a schedule which will prejudice the' Governments. If LILCO wishes =to file its brief on December 30, that is fine with the Governments. The Governments' insist, however, that since LILCO has articulated no' proper bases.
for its Motion, and since any shortening of the schedule will prejudice the Governments and make it difficult to give Contentions Ex 15/16 the rigorous briefing they deserve, that the time set forth in the rules, 60 days from LILCO's December 17 filing of its Notice of Appeal, be adhered to.
The. Exercise Board proceeded diligently to render its PID on the exercise scope issues. It had to sift through large amounts of evidence and legal br[efs in order to. reach its dec'ision. On appeal, the Appeal Board should allow the parties.the time necessary to put together comprehensive briefs, and the Appeal
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Board should proceed expeditiously once those briefs'are filed to hold oral argument and to render a decision in an orderly manner ~.
Thereafter, once the issues have been framed, the Commission can decide whether to exercise its discretionary review. That is the procedure set forth in the regulations. LILCO has failed to
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. demonstrate any compelling reason to discard that orderly procedure, other than to plead, as it.so often does, for a favor from the NRC.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney
, . Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 Nhrbert H. Brown '
Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK & LOCKHART 1800 M Street, N.W.
1 South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County h
Fabian G. Palomino
- s.A Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York
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Stephen B. Latham Lp- Twomey, Latham & Shea P.O. Box 398'
- 33. West Second Street
..,. Riverhead,'New York 11901' Attorney for the Town of Southampton s-r
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s 25 -
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Attachment 1 l
l 104 i MR. MILLER: I would just like Mr. Husar to explain 2 to me what he means by the term " exercise."
3 MR. CUl"JfING: Well, the Board in the December lith 4 Order said that FEMA witnesses could not speak to what is 3
5 a full participation exercise under NRC regulations. I s However, with respect to N.MA regulations to the 7 extent that the witness has knowledge he may answer.
8 THE WITNESS: Are you saying that you would like 9 a definition of what an exercise is?
l to BY MR. MILLER: (Continuing) l 12 Q Right. Wha't type of drill could be required in i j
i 12 order to establish 'the sufficiency of' the ' remedial action -- '
is I'm sorry, the sufficiency of the modification?
14 A I would say that in the case 'of Shoreham and is in the case of the LERO plan, we want to see 'a fully inte-16 grated exercise in order to properly evaluate this capability.
17 Q Are you'saying then that it would not be sufficient is if there was a drill simply of that pitrticular aspect of the 19 plan?
20 MR. MdMURRAYi Objection. Asked and answered.
21 MR. MILLER: I'm just trying to clarify what his 22 statement was.
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r y - - - - - - - - - - - - - - - - - - - -
105 1
THE WITNESS: My answer again is, a ful'ly 2
integrated exercise'is.what we would be 'looking for with a 3
scenario that would prompt these kinds of response measures 4
so that we can properly evaluate the adequacy of the plan 5 that treats tho'se planning criteria.
e BY MR. MILLER: (Continuing) 7 Q Is this your own particular view? Is this the a Region's view or FEMA Headquarters' view?
e A- I'm speaking to you as the' Cha'irman of the to Regional Assistance Committee, and that's the official view.
11 MR. MILLER: Okay. I have no further questions.
12 MR. ZAHNLEUTER: No questions. -- --
13 MR. CUMMING:
I have'one' question for the axx 14 record.
15 CROSS EXAMINATION 16 BY MR. CUMMING:
17 Q What various remedial' actions are -- first of all, is let me state, because'I don't believe that the' counsel for 18 either Suffolk or State of' New York asked this question on 20 the record.
21 Did you, in fact, participate'in any fashion in
'22 the exercise 'in February of' 1986 with respect to the Shoreham i
I
4 DOCKETED USNRC December o'
- 22. 1987 Utb 4J FZ :))
UNITED STATES OF AMERICA 0FFICE yp gg ggggg y NUCLEAR REGULATORY COMMISSION 00CKEDNG A g.pyfc7' BRANCH Atomic Safety and Licensino Acceal Board
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON
SUMMARY
RESPONSE TO LILCO'S MOTION FOR CERTIFICATION TO THE COMMISSION OR EXPEDITED APPEAL BOARD REVIEW OF LBP-87-32 have been served on the following this 22nd day of December, 1987 by U.S. mail, first class, except as otherwise noted.
Alan S. Rosenthal, Chairman
- Howard A. Wilber*
Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 John H. Frye, III, Chairman Dr. Oscar H. Paris Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 1
Mr. Frederick J. Shon Lando W. Zech, Jr., Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C. 20555 Washington, D.C. 20555
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I r
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4 Commissioner Kenneth C. Rogers Commissioner Kenneth M. Carr i U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission l 1717 H Street, N.W. 1717 H Street, N.W. {
{
l Washington, D.C. 20555 Washington, D.C. 20555 l 1
Commissioner Frederick M. Bernthal Commissioner Thomas M. Roberts U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Street, N.W. 1717 H Street, N.W.
Washington, D.C. 20555 Washington, D.C. 20555 James P. Gleason, Chairman Dr. Jerry Kline Atomic Safety and Licensing Board Atomic Safety and Licensing Board 513 Gilmoure Drive U.S. Nuclear Regulatory Commission Silver Spring, Maryland 20901 Washington, D.C. 20555 William C. Parler, Esq. George E. Johnson, Esq.*
U.S. Nuclear Regulatory Commission Edwin J. Reis, Esq.
10th Floor U.S. Nuclear Regulatory Commission 1717 H Street, N.W. Office of General Counsel Washington, D.C. 20555 Washington, D.C. 20555 William R. Cumming, Esq. Anthony F. Earley, Jr., Esq.
Spence W. Perry, Esq. General Counsel Office of General Counsel Long Island Lighting Company Federal Emergency Management Agency 175 East Old Country Road 500 C Street, S.W., Room 840 Hicksville, New York 11801 Washington, D.C. 20472 Elisabeth Talbbi, Clerk W. Taylor Reveley, III, Esq.**
Suffolk County Legislature Hunton & Williams Suffolk County Legislature P.O. Box 1535 Office Building 707 East Main Street Veterans Memorial Highway Richmond, Virginia 23212 Hauppauge, New York 11788 Mr. L. F. Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Commission 195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C. 20555 Mary M. Gundrum, Esq. Hon. Michael A. LoGrande New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271' Hauppauge, New York 11788
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i MHB Technical Associates Dr. Monroe 3chneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 Martin Bradley'Ashare, Esq. Fabian G. Palomino, Esq.
i Suffolk County Attorney Richard J. Zahnleuter, Esq.
l Bldg. 158 North County Complex Special Counsel to the Governor
. Veterans Memorial Highway Executive Chamber, Rm. 229 Hauppauge, New York 11788 State Capitol Albany, New York 12224 Mr. Jay.Dunkleburger Mr. Stuart Diamond New' York State Energy Office Business / Financial Agency Building 2 NEW YORK TIMES Empire State Plaza 229 W. 43rd Street Albany, New York 12223 New York, New York 10036 Mr.. Philip McIntire David A. Brownlee, Esq.
' Federal Emergency Management Agency Kirkpatrick & Lockhart 26 Federal Plaza 1500 Oliver Building New York, New York 10278 Pittsburgh, Pennsylvania 15222
' Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Gh*2 twt / &
By Hand L'awrence Coe Lanpher/
By Federal Express KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South' Lobby - 9th Floor Washington, D.C. 20036-5891
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