ML20237E599
| ML20237E599 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/18/1987 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20237E542 | List: |
| References | |
| OL-3, NUDOCS 8712290078 | |
| Download: ML20237E599 (22) | |
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UNITED STATES OF AMERICA E NCH NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensinir Board In the Matter of )
)
LONG ISLAND LIGIITING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) ')
LILCO'S MOTIONS FOR
SUMMARY
DISPOSITION OF CONTENTIONS 1-2 AND 4-10 1
(
)
Ilunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 December 18,1987 8712290078 871218 2 PDR ADOCK 050 s
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board l
Watter of )
)
}SLAND LIGIITING COMPANY ) Docket No. 50-322-0 L-3
) (Emergency Planning) lam Nuclear Power Station, )
D )
LILCO'S MOTIONS FOR
SUMMARY
DISPOSITION OF CONTENTIONS 1-2 AND 4-10 Hunton & Williams '
707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 December 18,1987
l
- UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S MOTIONS FOR
SUMMARY
DISPOSITION OF CONTENTIONS 1-2 AND 4-10 Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 December 18,1987 f
E____________._....._.___._..___ . . _ _ . . _ _ _ _
TABLE OF CONTENTS i
Tab Documents Introduction
Introduction:
Memorandum of Law on LILCO's Motions for Summary Disposition of Contentions 1-2 and 4-10 Affidavits Affidavit of Douglas M. Crocker in Support of LILCO's Motions for Summary Disposition of Contentions 1-10 Affidavit of Charles A. Daverio on LILCO Responses to Requests by Local Law Enforcement Officials for Public Safety Assistance Affidavit of James W. Devlin in Support of LILCO's Motion for Summary Disposition of Contentions 1-10 Affidavit of Jay Richard Kessler on Direct-ing Traffic, Training Public Workers for Emergency Response, and Ordering Evacuations Affidavit of John D. Leonard, Jr. In Support of LILCO's Motions for Summary Disposition of Contentions 1-10 PAR's/ Sirens /EBS (5 & 6) LILCO's Motion for Summary Disposition of Contentions 5 and 6 (Making Decisions and Telling the Public)
Traffic (1 & 2) LILCO's Motion for Summary Disposition of Contentions 1 and 2 (Directing Traffic)
Access (10) LILCO's Motion for Summary Disposition of Contention 10 (Access Control at the EPZ Perimeter)
Road Crews (4 & 9) LILCO's Motion for Summary Disposition of Contentions 4 and 9 (Tow Trucks and Fuel J 1
Trucks)
Ingestion (7 & 8) LILCO's Motion for Summary Disposition of '
Contentions 7 and 8 (Ingestion Pathway and Recovery and Reentry)
Immateriality (1,2, & 9) LILCO's Motion for Summary Disposition of Contentions 1, 2, and 9 - Immateriality l
l l
g Good Faith Effort LILCO's Motion for Summary Disposition of Contentions 1-10 With Respect to 10 CFR S 50.47(c)(1)(1) and (11) 4 l
LILCO, December 18, 1987 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
INTRODUCTION: MEMORANDUM OF LAW ON LILCO'S MOTIONS FOR
SUMMARY
DISPOSITION OF CONTENTIONS 1-2 AND 4-10 II Accompanying this memorandum are six motions for summary disposition of the remaining " legal authority" contentions, Contentions EP 1-2 and 4-10. These con-tentions are ripe for disposition now because of the Commission's new emergency plan-ning rule,52 Fed. Reg. 42,078-87 (Nov. 3,1987). The motions are organized as follows:
Basis for Contention Functions Summary Disposition 5&6 Making protective action Best Efforts decisions, sounding warning sirens, broadcasting infor-mation to the public 1&2 Directing traffic Best Efforts 10 Controlling access to Best Efforts evacuated areas 4&9 Removing road obstructions Best Efforts and providing gasoline 7&8 Ingestion pathway and Best Efforts recovery / reentry 1, 2 & 9 Directing traffic, Immateriality providing gasoline l
1/ Also attached is a motion addressing the related matters of whether the " legal authority" problem alleged in Contentions 1-10 is the result of State and County nonparticipation and whether LILCO has made a " sustained, good faith effort" to get them to participate.
In support of these motions are five affidavits, immediately following this memoran-dum. These show both that utility company employees can be, and of ten are, expected to perform tasks such as directing traffic; they also show that LILCO can contact State and local authorities quickly in a real emergency. Also, the " Immateriality" motion on Contentions 1, 2, and 9 has its own supporting affidavit by LILCO's traffic consultant Mr. Lieberman.
Contentions 1-2 and 4-10 allege that LILCO lacks " legal authority" to perform nine jobs called for in LILCO's offsite emergency plan. All of them, LILCO submits, are resolvable summarily by applying the "best efforts" principle in the Commission's new emergency planning rule,10 CFR S 50.47(c)(1), 52 Fed. Reg. at 42,086 col. 2 (Nov. 3, 1987). Once that principle is applied, LILCO submits, it is clear that State and County legal authority would not degrade the emergency response. Moreover, Contentions 1,2, and 9 (directing traffic and providing gas) can be resolved in the alternative on grounds of immateriality because, given the circumstances of the Shoreham site, they address functions that are not required to protect the public.
This memorandum makes four points, set out in parts I through IV below. Part I recounts briefly what the summary disposition regulation,10 C.F.R. 5 2.749, requires for the " legal authority" issues. Part II explains why legal authority would not be lacking in a real emergency. Part III explains what the "best efforts" principle tells us abour what New York. State and Suffolk County would do in a real Shoreham emergency.
And Part IV tells why Interveners' generalized statements that they would not "use the LILCO plan" and the like are insufficient as a matter of law.
I. What the Law of Summary Disposition Requires The law of summary disposition has been set out in Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-82-114,16 NRC 1909, 1913 (1982), and more recently by this Board in its Memorandum and Order (Ruling on Applicant's Motions of March 20, 1987 for Summary Disposition of the Legal Authority
Issues . . .), at 19-20 (Sept.17,1987). Of particular importance here, the opponents of a motion for summary disposition must set forth " specific" facts, not generalized denials.
10 C.F.R. S 2.749(b); Virginia Electric and Power Co. (North Anna Nuclear Power Sta-tion, Units 1 and 2), ALAB-584,11 NRC 451, 453 (1980). In this case, the Interveners must state specific facts explaining why the LILCO Plan will not work with the "best efforts" of New York State and Suffolk County.
Moreover, in the circumstances of this remand proceeding the Board should pay particularly close attention to these summary disposition motions and the answes to them, because the motions are based on the existing evidentiary record. And the Com-mission has directed the Board to "use the existing record to the maximum extent pos-sible." CLI-86-13, 24 NRC 22, 32 (1986). Hence a close look at the record, and careful consideration of these motions, are not only desirable but necessary.
II. Who Would Have " Legal Authority" in an Emergency Consistent with Cuomo v. LILCO,127 A.D.2d 626, 511 N.Y.S.2d 867 (2d Dept.
1967), appeal pending, legal authority for the nine functions addressed by Contentions 1-2 and 4-10 reside with the State and County. What this means is that LERO must get permission from the State ,ar C?unty to activate the warning sirens (for example) or to recommend to the public that they shelter or evacuate. LERO is a volunteer organiza-l tion and would operate, in an emergency, under the direction of the authorities. This is nothing new; the LILCO plan has always been designed to defer to decisions and direc-tions of the State and local governments. The Interveners have admitted they would try to stay in contact with LILCO (Admitted Fact 46),W and so an emergency response by LERO would be under their supervision.
I 2/ " Admitted Facts" are those attached to LILCO's Second Renewed Motion for Summary Disposition of March 20,1987, and not contested by the Interveners.
The only difference now is that LILCO must contact the County or State before the nine functions can be performed, as is tne case with emergency plans for other nu-clear plants. As explained in the accompanying Motion for Summary Disposition of Contentions 5 and 6 LILCO would initially contact the authorities by telephone, either the Radiological Emergency Communications System (RECS) phone or commercial phone backup. Later on in the emergency contact would be face-to-face, because Suffolk County, using its "best efforts," would send a representative to the LERO Emer-gency Operations Center (EOC).E Precisely who would exercise the State's and County's authority in an emergency is clear. Suffolk County would ordinarily be in charge, with the State providing support as necessary, because this is the normal pattern under New York law (see, e.g., n.4 below). For Suffolk County the officials in charge would be the County Executive and the Commissioner of the Department of Fire, Rescue and Emergency Services (DFRES).
For the State, the Governor, the State Emergency Management Office (SEMO), and the Commissioner of Health would have authority, as detailed in LILCO's Motion for Sum-mary Disposition of Contentions 5 and 6. In a real emergency, LERO workers would be permitted to perform specific functions under the direction of these governmental au-thorities.
The Interveners have suggested that they could not allow LERO to do anything in an emergency because Cuomo v. LILCO holds that they may not "delegato the police power." But this is a semantic argument of no substance; using private volunteers like LERO, under government supervision, is not " delegating the police power," as the affi-davits accompanying this memorandum amply demonstrate. And Cuomo v. LILCO is not dispositive of this remand proceeding because it addresses only the hypothetical 3/ Consistent with the guidance of NUREG-0654 Supp.1, C.2.c, LILCO would also send a liaison to police headquarters at Yaphank.
situation of a utility's responding to an accident without any participation by the au-thorities. See Cuomo v. LILCO, Consol. Index No. 84-4615 (Sup. Ct. Feb. 20, 1985)
(Geiler, J.S.C.), aff'd,127 A.D.2d 626,511 N.Y.S.2d 867 (2d Dept.1987), appeal pending.
This remand presents the opposite situation in which the authorities use their "best ef-forts."
A. Utility Employees Of ten Direct Traffic No one can take seriously the argument that the County Executive could not lawfully ask a LERO worker to activate warning sirens, read an EBS message over the radio, direct traffic, or tow a stalled car. No extended discussion is needed because the facts speak for themselves: as the accompanying Affidavits of Charles A. Daverio and Jay Richard Kessler show, utility employees routinely direct traffic and sometimes ask people to evacuate their homes.
If the past is any guide, the Interveners will try to distinguish the incidents recounted in these affidavits, arguing that a radiological emergency is different. But such distinctions are of no avail. Once LILCO shows that utility employees lawfully di-rect traffic in some circumstances, there is no longer any basis for claiming that they could not lawfully do the same thing in a radiological emergency.
B. State and Local Law Calls for Coordination with Private Organizations Moreover, State and local law, as described below, calls for the use of private re-sources in an emergency, and the Board may presume, pursuant to the new NRC rule, that the Interveners would obey the law. For example, the Suffolk County Charter makes the Department of Fire, Rescue and Emergency Services responsible "for main-l talning operational liaison, in accordance with federal, state and local directives, with all cooperating private agencies; that is, . . . red cross, private industry, brookhaven national laboratory, utility companies . . . etc." (Admitted Fact 48). The County Char- j l
ter also provides that the DFRES "[s] hall identify, locate and plan for the integration l
(sic] with emergency service teams all privately owned construction and health ser-vice equipment, all trained construction, radiological, health service and sanitation personnel, and all public utility installation and maintenance personnel . . . ." (Admitted Fact 49).
Likewise, State law calls for coordination with private companies. N.Y. Exec.
Law Article 2-B is replete with referenaes to " volunteers,"" emergency services organi-zations," and " private agencies." For example, " emergency services organization" is defined as "a public or private agency, organization or group." Article 2-B S 20.2.e (emphasis added).M And the " Legislative Findings" accompanying Section 20 of Article 2-B include the following:
The legislature finds that a joint effort, public and pri-vate, is needed to mobilize the resources of individuals, busi-ness, labor, agriculture, and government at every level --fed-eral, state and local - for effective organization to prepare for and meet natural and man-made disasters of all kinds.
The legislature finds that a mutual benefit can be de-rived by the state and its political subdivisions by the integra-tion of their natural disaster and peacetime emergency re-sponse functions with the civil defense program, thus utilizing local government and emergency services organizations for response to both natural and manmade disaster and to attack.
" Historical Note," following N. Y. Exec. Law Section 20 (emphasis added).N 4/ State policy is that " local government and emergency service organizations con-tinue their essential role as the first line of defense in times of disaster, and that the state provide appropriate supportive services to the extent necessary . . . ." N.Y. Exec.
Law, Article 2-B, S 20.1.a (McKinney 1982).
5/ The State Disaster Preparedness Commission is authorized to " create, following the declaration of a state disaster emergency, a temporary organization in the disaster area to provide for integration and coordination of efforts among the various federal, state, municipal and private agencies involved." Article 2-B 5 21.3.f. Upon finding that the municipality is unable to manage local disaster operations, the DPC may, with the approval of the governor, direct the temporary organization to assume firection of the !acal disaster operations of such municipality, subject to the supervision of the Ocamission. Id. In such an event the temporary organization "may utilize such munic-ipality's local resources." Id.
State law also approves the use of " volunteer" forces and " private" f acilities.
For example, the State emergency plan must include, among other things:
Arrangements for activating state, municipal and volunteer forces, through normal chains of command so far as possible and for continued communication and reporting; Article 2-B 5 22.3.b(4)(emphasis added). The State Plan is also to include:
(5) a specific plan for rapid and efficient communication, and for the integration of state communication f acilities during a state disaster emergency, including the assignment of responsibilities and the establishment of communication prio-rities, and liaison w!th muncipal, private and federal commu-nications f acilities; (9) provisions for training state and local government person-nel and volunteers in disaster response operations; Article 2-B 5 22.3.b(5), (9) (emphasis added).S C. State Plans Call for Coordination with Private Organizations Not only the laws, but the State emergency plans prepared under them also pro-vide for the use of private resources. For example, both the New York State Ra-diological Emergency Preparedness Plan (hereinaf ter " State Plan") and the State Disas-ter Preparedness Plan provide for coordinating response efforts with private organizations ( Admitted Facts 50 and 51). The State Plan also provides that:
s/ Furthermore, the provisions of Article 2-B must be interpreted in light of the
" policy" of New York State that
- c. state and local natural disaster and emergency re-sponse functions be coordinated in order to bring the i
fullest protection and benefit to the people;
- e. state and local plans, organizational arrangements, and response capability required to execute the provi-sions of this article shall at all times be the most ef-fective that current circumstances and existing re-sources allow.
N.Y. Exec. Law, Article 2-B,5 20.1.c, e (McKinney 1982).
_g.
The first line of responsibility lies with the facility operator.
The local and State response efforts will not begin unless the emergency results in a potential hazard to the public.
Responsibility for notification and initial assessment and evaluation lies with the nuclear f acility operators.
State Plan, at I-6 (emphasis added).
D. The "Emersrency Consensus" Would Promote Cooperation Finally, cooperation among all the responding organizations would occur be-cause, as history shows, that is what happens in communitywide disasters. The parties have already litigated many issues about human behavior in emergencies, and one of the things that was shown is that an " emergency consensus" emerges. In an emergency people's values shif t to place importance on protecting threatened people. See PID,21 NRC 644,674 (1985); Cordaro e_t al., ff. Tr. 831, at 18-20; Cordaro et al., ff. Tr. 6685, at
- 12. This means that in an emergency people put aside their differences and cooperate.
This fact is perfectly consistent with the "best efforts" principle, as explained below, and inconsistent with the Interveners' arguments that they would not cooperate with LILCO; it is wildly implausible to suppose that in an emergency the authorities would ignore an organization like LERO that was trained to respond to precisely the type of emergency being f aced.
III. What "Best Efforts" Implies As noted above, State and local governments would use their "best etforts" to 1
! protect the public in an emergency. LILCO submits that the "best efforts" principle of the new NRC rule demonstrates, in a manner satisfactory to meet the standards of 10 1
CFR S 2.749, precisely how the nine functions addressed by the contentions would get done under the authority of the State and County.
The "best efforts" principle also explains why the existing record is so important in this remand proceeding: there is no better guide to what are "best efforts" for Shoreham than the eight months of hearings already held on the Shoreham emergency plan. The LILCO Plan was the best offsite plan one NRC Staff witness had ever seen.
Tr.15,226 (Sears). The Interveners raised every conceivable criticism of the plan, and these criticisms were addressed by expert witnesses, debated by lawyers, and decided by the Board, Appeal Board, and Commission. In those few instances where the Interve-nors were correct, LILCO changed the plan. See, e.g., Attachment 2 to LILCO's Motion for Summary Disposition of Contentions 1 and 2.
Perhaps no emergency plan can be the "best." But if there are better ways to perform the nine functions in the " legal authority" contentions than LILCO has pro-posed, this agency's exhaustive processes have f ailed to reveal them. Thus the attached motions for summary disposition are based on what the record shows about how deci-sions should and would be made, traffic controlled, and so on.E The Interveners will argue that these motions for summary disposition are no different from the one that was denied in the Board's September 17 Memorandum and Order. But they will be incorrect. The Board has said that The proposed rule is different from the law of the case laid down in CLI-86-13 and cannot be relied upon in support of Applicant's motion.
Memorandum and Order (Ruling on Applicant's Motion of October 5,1987 for Reconsid-eration and Other Relief), at 10 (Oct. 29,1987). In particular, the Board's denial of summary. disposition, pre-rule, was based on generalized denials by the Interveners that they would not " rely on LILCO" and the like.E The new NRC rule, contrary to these 7/ In some cases the motions cite other documents, such as the New York State Plan, because they tend to confirm the "best efforts" solutions as revealed in the Shoreham record. But the best guide to what constitutes "best efforts" for Shoreham is still the record in this proceeding.
3/ According to the affidavits attached to the Interveners' answer to LILCO's March 20 motion, the State would not respond "in accordance with LILCO's emergency plan or in concert with LILCO," " rely on" LILCO, " rely upon" LILCO's advice, " permit LILCO . . . to implement" its plan, or "f acilitate the implementation of" the LILCO plan. Affidavit of Mario M. Cuomo, Governor of the State of New York, Att. I to Inter-venors' May 11, 1987 Answer to LILCO's March 20, 1987 Second Renewed Motion for Summary Disposition. Likewise, former County Executives said that the County would (footnote continued)
denials, creates a presumption that " state and local officials would generally follow the utility plan."EI More important, the new rule makes clear that the presumption may not be re-butted by mere statements that officials would not follow the utility plan. The new rule, like all regulations, must be interpreted in light of its purpose and rationale. The rationale of the " follow the utility plan" presumption is stated in the Federal Register:
the authorities would follow the utility plan because it would be the only plan and be-cause "the rulemaking record strongly supports the proposition that state and local gov-ernments believe that a planned response is preferable to an ad hoc one." 52 Fed. Reg.
42,082 col. 2 (Nov. 3,1987). Hence the " follow the utility plan" presumption simply cannot be rebutted by allegations that the authorities would respond ad hoc and ignore the only approved plan. Such allegations constitute an impermissible challenge to the regulation (see 10 CFR S 2.758), not a permissible attempt to rebut the presumption.
The only appropriate way to rebut the " follow the utility plan" presumption is the one expressly mentioned in the rule: "a good faith and timely proffer of an ade-quate and feasible state and/or local radiological emergency plan that would in fact be relied upon in a radiological emergency." 52 Fed. Reg. at 42,086 col. 2 (Nov. 3,1987).
The Commission, consistent with past practice,10/ made the rule flexible and. lef t (footnote continued) not "act in concert with LILCO," would not "look to [LILCO] for guidance," and "would give no credence to LILCO or its plan." Statement of Suffolk County Executive Peter l F. Cohalan, attached to Interveners' May 11, 1987 Answer to LILCO's March 20, 1987 Second Renewed Motion for Summary Disposition.
9/ Note that the "best effort" principle is a " reality" to be " recognized," not a pre-sumption. See 52 Fed. Reg. 42,086 col.1 (Nov. 3,1987). It is not rebuttable.
10/ In Consolidated Edison Co. (Indian Point, Unit Nos. 2 and 3), CLI-83-16,17 NRC 1006, 1010-11 (1983), the Commission said that "the regulatory structure established by the emergency planning rule is intended to be flexible: the Commission is to look at the totality of the circumstances; to allow grace periods, where appropriate, for the correction of deficiencies; to balance a variety of factors even where grace periods have expired . . . : and to recognize that emergency planning is a fluid process, requiring regular updating, testing, and adjustment." I_d. at 1011.
L_..__..........._
room, at least in theory, for other rebuttals: rebuttal by producing a state or local plan is only an " example." But the rationale of the rule makes clear that other rebuttals, if any there be, must be consistent with the principle that using a plan is "best efforts".
and responding ad hoc is not. See 52 Fed. Reg. 42,082 col. 2 (Nov. 3,1987) (planned re-sponse is preferable to an ad hoc one); 52 Fed. Reg. 42,086 col.1 (state and local offi-cials will exercise their best efforts); 42,086 col. 2 (it may be presumed that state and local officials would " generally follow the utility plan").
Moreover, not only is there a new rule since the Board last ruled on the " legal authority" issues, there is new guidance as well. The NRC and FEM A have added a sup-plement to NUREG-0654, Criteria for Preparation and Evaluation of Radiological Emer-gency Response Plans and Preparedness in Support of Nuclear Power Plants, NUREG-0654 Supp.1 (November 1987). Its purpose is to provide interim " guidance for the development, review and evaluation of utility offsite radiological emergency re-sponse planning and preparedness for those situations in which State and/or local gov-ernments, decline to participate in emergency planning." NUREG-0654 Supp.1, at 1.
Where appropriate, LILCO has referred to NUREG-0654 Supp.1 in the attached mo-tions.
IV. Why Generalized Denials Are Not Sufficient A. The Interveners' Argument that They Would Not Follow the LILCO Plan Is Meaningless In light of the "best efforts" principle, the Interveners' generalized denials can be seen clearly for what they are: a mere semantic argument that becomes meaning-less when it gets to specifics.
Under the new rule it is established that the Interveners would do the best they could. If the best they could do is what is called for by the LILCO Plan, then they would do it, and it makes no difference whether they call it "following the LILCO Plan" or not. Suppose, for example, there were an emergency and the public needed to be
alerted. The' sirens are ready to be activated, and the State or County can activate them with a phone call. The existing siren system is clearly the best way to alert the public, especially once the public has been prepared for the sirens by the public educa-tion brochure. It necessarily follows that the State and County would order (or ask -it makes no difference) LILCO to sound the sirens; the authorities would not refuse to do the best thing simply because it was part of the LILCO Plan. Similarly, if plant condi-tions dictated that people should evacuate, the County would not refuse to evacuate them just because the LILCO Plan called for evacuation.
Thus, absent specifics, the Interveners' claim that they "would not use the LILCO Plan" is meaningless. The plain truth is that the authorities would do either what the LILCO plan calls for or something better. If they would do what the plan calls for, then the response has already been litigated. If they would do something better, then a fortioriit would meet NRC standards.
B. The Interveners' Rationale for Refusing to Follow the LILCO Plan is a Challenge to NRC Regulations The Interveners' rationale for saying that they would not use the plan is that they think it is inadequate. This rationale is insufficient as a matter of law to defeat summary deposition, because it is an impermissible challenge to NRC regulations under 10 CFR S 2.758.
- 1. Interveners' Disagreement with Ten-Mile EPZ The Interveners' principal reason for claiming the plan is inadequate appears to be that it is based on an NRC regulation, the one calling for a ten-mile EPZ:
The record here absolutely prohibits the finding desired by LILCO. Government officials have testified that the pre-sumptions and facts which underlie LILCO's proposals for making protective action recommendation decisions are in-correct, and would result in endangering the public further, rather than protecting them from the effects of a radiological emergency at Shoreham. Just a few, out of many examples illustrate this point.
For example, as this Board knows, the Governments have contended, and it has long been their stated belief, that 3
limiting preparedness, evacuation or sheltering plans, as well as any other aspects of emergency planning and response, to the artificial 10-mile zone created by LILCO, is inappropriate and dangerous. See ALAB-832. This Board is well aware -
and cannot ignore - that a Government "best efforts" re-sponse, whatever it would be, clearly would not include an ac-ceptance of the planhing zone concept fashioned by LILCO, or decisionmaking which incorporated that concept. Howev-er, all protective action recommendations, the processes used to arrive at them, and every other aspect of the command and control functions in the LILCO Plan, are premised on the existence, validity, and meaningfulness of LILCO's 10-mile EPZ. That entire concept, as well as plans and procedures premised on it, have been, and in a "best efforts" response would be, rejected by the Governments. This Board cannot 3
find otherwise.
Answer of Suffolk County, the State of New York and the Town of Southampton to "LILCO's Second Renewed Motion for Summary Disposition of the ' Legal Authority' Is-sues (Contentions 1-10)," at 58-59 (May 11,1987).
There are three reasons why this argument cannot be credited. In the first place, the State clearly accepts the concept of a 10-mile EPZ, since it uses it at every other nuclear power plant in New York State.$ Some 10-mile EPZ's in New York State are more populated or harder to evacuate than the one at Shoreham. The Marburger Commission, which the Governor has cited to support his decision to oppose emergency planning for Shoreham, reported as follows:
11/ The "best possible" draf t Voorhees Plan, prepared in 1982 by Suffolk County con-sultants but rejected by the County, says that "[u]nder the state plan, the New York Office of Disaster Preparedness has the primary responsibility for the accident assess-ment" and that "[t]he county's decision on protective actions to be ordered depends heavily on this state assessment." Voorhees Plan, Vol. I, at 15 (Nov.1982). In one of its few attempts to challenge the logic of decisionmaking under the LILCO plan, Suffolk County contended, in Contention EP 64, that in a_ny evacuation "LILCO must evacuate at least a radius of five to seven miles around the plant." When asked in depositions if they agreed with this County proposal, two designated State witnesses said no. Deposi-tion of Richard Taylor, Feb. 9,1984, at 25; Deposition of Edward P. Bennett, Feb. 9, 1984, at 46. Shortly af ter the depositions these two people, among others, were with-drawn as witnesses by the State. As a result, the deposition excerpts were stricken by the Board when LILCO submitted them as attachments to its written testimony on Con-tention 64. See Cordaro e_t al., ff. Tr. 8760. Nevertheless, the Board decided Conten-tion 64 in LILCO's favor.
{
While this [the 4.5 to 6.5 hour5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> evacuation plan for Shoreham) is more time than needed for many nuclear plants in remote rural areas, it is less time than that needed to evacuated the 10-mile EPZ near the Oswego nuclear site and less than that needed to evacuation the portion of Rockland County which within the Indian Point 10-mile EPZ.
Report of the New York State Fact Finding Panel on the Shoreham Nuclear Power Fa-cility, at 9 (December 1983).
In the second place, there is no logical connection between disagreement with the 10-mile EPZ and refusal to use the plan in an emergency. The 10-mile EPZ is a planning tool, not a limit on what is done in a real emergency. The 10-mile EPZ is the area for which one makes detailed advanced plans. If in a real emergency the radioac-tive plume goes beyond 10 miles, then of course protective actions may be recom-mended beyond 10 miles.
Therefore, when the Interveners say they would not use the LILCO plan because they disagree with the 10-mile EPZ concept, they do not make much sense. Do they mean that they would automatically evacuate beyond 10 miles no matter what kind of accident occurred? This would be so irrational that it could not possibly be "best ef-forts." Even if the authorities did want to evacuate beyond 10 miles when the accident did not require it, "best efforts" would be to use the plan to evacuate out to 10 miles. It
.would certainly p_ot be best efforts to evacuate people beyond 10 miles who were not in danger if that would hinder the evacuation of the people closer to the accident. Thus, it is clear that the Interveners' fundamental basis for their position, that they disagree with the 10-mile EPZ, does not support the conclusion that they would not follow the ;
LILCO Plan.
In the third place, the Interveners cannot rebut a presumption in an NRC regula-tion by defying another NRC regulation. The Commission's recent decision CLI-87-12 (Nov. 5,1987) strengthens LILCO's argument that the Board cannot recognize argu-ments based on a disagreement with federal rules.N For CLI-87-12, at a minimum, 12/ , CLI-87-12 addressed, among other things, Contentions 22.B and 22.C, both of
reaffirms the Commission's adherence to the ten-mile generic EPZ.N
- 2. Intervenor' Disagreements with NRC Decisions Apart from the ten-mile EPZ, the Interveners argue they would not use plan be-cause they disagree with it on other grounds as well:
Suffolk County has found LILCO's Plan to be unworthy and unworkable. The County would not, and could not, rely on such a discredited plan.
Affidavit of Michael A. LOGrande, quoted in the Interveners' Answer to LILCO's Second Renewed Motion, at 32. Similarly:
[T]he established position of the State is that LILCO's emer-gency plan is unworkable. The State, therefore, could not in an emergency choose to rely upon the very plan that it has found to lack merit.
Statement by Governo Mario M. Cuomo, Exhibit A to Att. I to the Interveners' Answer to LILCO's Second Renewed Motion. This argument is a challenge to the NRC regula-tions and to the NRC's decisionmaking authority.
As a matter of law, the Interveners cannot base their case on their own dis-agreement with NRC decisions. The Board recognized this in its September 17 Memo-randum and Order:
In answers to the motion for summary disposition, the Gov-ernments have urged us to accept positions on f actual matters which they have taken before us in the past for which we had found that there was no merit and as to which the Board has not been reversed on appeal or have the issues remanded. For example, the affidavit of Karla J. Letsche includes two exhib-its that cite in tabular form past testimony on numerous (footnote continued) gued that " local conditions" mandated a larger plume EPZ because, in a severe acci-dent, LILCO would not be able to adequately extend emergency response efforts outside the 10-mile area on an ad hoc basis. CLI-87-12, slip op. at 3. Subpart C argued that local conditions demanded a larger EPZ, most importantly because massive spontaneous evacuation by people outside the EPZ would have disastrous effects. I_d. The Commis-nion concluded that these contentions " constitute challenges to [NRC] regulations."
I_d. at 2.
M/ See CLI-87-12, slip op. at 13-17 (Nov. 5,1987).
contentions which have been heard and ruled upon. Likewise the affidavit of Richard C. .toberts references such matters as evacuation shadow Pr,Q qaccurate evacuation time esti-mates which we have L.T iered and decided previously. (An-swer, Attachment 3, Exh t
- B and C.) We consider these ef-forts to be improper.
It may well be that the Governments continue to be-lleve that an emergency response in conformance with NRC regulations is impossible on Long Island. However to the ex-tent that the Board has held to the contrary and has been upheld on appeal, those matters are now settled in this pro-ceeding. The Governments are no longer free to press their.
views on matters that have been decided against them absent a successful motion to reopen the record. The matters in controversy now lie elsewhere and it will not advance the po-sition of any party to attempt to relitigate previously decided issues. The Board will only hear evidence and decide issues on which the record remains open.
Memorandum and Order, at 46-47 (Sept.17,1987)(emphasis added). This holding is con-sistent with the Brenner Board's earlier ruling.14 Interveners' reliance on their own views of the emergency plan is also contrary to several Commission decisions. For example, in CLI-83-13 the Commission noted its
" ultimate authority" to determine whether utility plans are sufficent to meet NRC 14/ The Brenner Board said, in part III.B of its 1983 opinion:
we will entertain no contentions inconsistent with this order. For example, we will not entertain contentions premised solely on the absence of a Suffolk County approved plan.
LBP-83-22,17 NRC 608, 644 (1983). The Commission, affirming, directed the Board to proceed "as it outilned in section III of its opinion." CLI-83-13,17 NRC 741, 743 (1983)
(footnote omitted). See also the Board's ruling that the Interveners would be permitted to litigate only factors that make it not feasible to do emergency planning on Long Is-l land:
1
[I]f the County seeks to have its findings adopted, it must litigate before us the f acts which it believes support its view that it is not feasible to implement emergency preparedness actions which would meet NRC regulatory requirements in the event of a radiological emergency at the Shoreham nu-clear power plant.
LBP-83-22,17 NRC 608, 643 (1983), aff'd on other grounds, CLI-83-13,17 NRC 741 (1983).
requirements. CLI-83-13,17 NRC 741, 743 (1983). Likewise, in CLI-85-12 the Commis-sion rejected the suggestion that a state or county would defy NRC findings on health and safety:
We note that our Licensing Board in its decision of April 17,1985 (LBP-85-12,21 NRC 644), has found that an ad-equate emergency plan is in fact achievable if the State and County participate in emergency planning, as all other local and State jurisdictions have done when so called upon. Like any litigants before us, these Interveners may challenge the adequacy of this Board's determination, but they may not sim-ply substitute their own judgment for the Commission's re-garding what the public health and safety requires for licens-ing the operation of a nuclear power plant. Congress has entrusted the protection of public health and safety in mat-ters concerning nuclear power to the Commission, not to Suffolk County or New York State. See Pacific Gas &
Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S.190, 205 (1983). Accord-ingly, we believe that the County and the State must recog-nize that when a health and safety issue has been fully litigated before the Commission, the Commission's final judg-ment, subject to judicial review, must be the controlling de-termination, even if some continue to disagree with it.
Thus, while we express no opinion concerning the Board's decision while it remains under administrative review, we are confident that if the Commission upholds the Licens-ing Board's finding that an adequate emergency plan is feasi-ble with State and local participation, the State and County will accede to that judgment and will provide the participa-tion needed to make the plan successful. In short, we shall not take as an element of uncertainty in the eventual full-power operation of Shoreham the possibility that either the State or the County will refuse to cooperate with LILCO on the basis of their own conception of what radiological public health and safety requires, rather than on the findings of the Commission.
CLI-85-12,21 NRC 1587,1589-90 (1985) (emphasis added).
The Interveners' argument also runs counter to several federal court decisions.
For example, in Citizens for an Orderly Energy Pollev v. County of Suffolk, 604 F.
Supp.1084 (E.D.N.Y.1985), Judge Altimari reaffirmed the exclusive authority of the NRC to rule on the adequacy of an emergency plan:
The County has not and cannot supersede the judgment of the NRC on whether or not a license should issue for Shoreham.
Once the NRC makes that decision the County's opinion on LILCO's RERP will become academic.
604 F. Supp. at 1095 (emphasis added), aff'd,813 F.2d 570 (2d Cir.1987) (per curiam).
In short, large parts of the Interveners' case are based on the proposition that In-tervenors will never " implement" the LILCO Plan because they, not the NRC, have de-cided the plan is inadequate. This argument must be rejected as a matter of law.
V. Conclusion With these preliminary remarks LILCO submits its motions for summary disposi-tion of the " legal authority" issues. These motions demonstrate, LILCO believes, that
" legal authority" is a sham issue, that lack of legal authority would not endanger the public health and safety, that the exercise of the State's and County's legal authority would not degrade the emergency response, and that there are no genuine issues to be heard in Contentions EP 1-10. .
Respectfully submitted,
- b. M
/ James N. Christman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: December 18, 1987
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