ML20238F327
| ML20238F327 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/11/1987 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#387-4372 ALAB-847, CLI-86-13, LBP-85-12, OL-3, NUDOCS 8709160080 | |
| Download: ML20238F327 (14) | |
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UNITED STAT S OF AMERICA '87 SEP 14; P4 :00
- v. NUCLEAR REGULATORY COMMISSION
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'Before the Atomic Safety and Licensing Board ar l ;
l In the Matter of - ) -l'
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. LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
.) . (Emergency Planning)
(Shoreham Nuclear Po e Sta tion, /)
Unit 1) )
t LILCO'S MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION 92
. (NO NEW YORK STATE EMERGENCY PLAN) l 3
LILCO hereby moves, pursuant to 10 C.F.R. S 2.749, for summary disposition of 1
' emergency planning Contention EP 92, which alleges that there is no New York State y .
l emergency plan for Shoreham and that LILCO's Emergency Plan fails to provide for-coordination of LILCO's emergency response with that of the State. The basis for this ;
motion is the existing record, the Board's own findings in LBD+85-12 (the Partial Initial
? 1 Decision or "PID"), the Commission's ruling on the " Realism" pr.)cciple in CLI-86-13, and i the remand of Contention 92 in ALAB-847. Section 2.749(a) pro 41 des th t any party may move for summary disposition "with or without supporting' affidavits;"s 10 CFR S ~2.749(a) (1987). No anidavit is necessary to support this motion, because the issues here eith'er are pure questions of law or are resolved by the existing evidentiary record, Numbers in parentheses throughout this motion refer to the numbered statements of fact in the attached " Statement of the Material Facts as;to Which LILCO Contends There Is No Genuine Issue to Be Heard on Contentiod 92 (No New York State Emergency Plan)." ,
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I. Background Contention 92 reads as follows:.
. There is no New York State emergency plan to deal
.with an emergency at the Shoreham plant before this Board.
(See Plan, Attach.- l.4.2). In addition, the LILCO Plan fails to provi&for coordination of LILCO's emergency. response
.with that of the State of New York (assuming, arguendo, such a response would be forthcoming). (See FEMA Report at 1). , In the absence of a State emergency plan for Shore-ham, there can be no finding of compliance with 10 C.F.R.
g SS 50.47(a)(2),50.47(b), or NUREG-0654 SS I.E, I.F I.H or I.L x -
d See Long\Ioland Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12,21 NRC 644,1024 (1985)(fobtnote omitted).
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- Testimony prese ted by LILCO at the evidentiary hearing established that the
- State, in its emergency plans for other nuclear power plants in New York, would per-form four specific functions in the event of a radiological emergency:
l'
- 1) - dose projection based on release data communicated to State officials,
- 2) - ingestion pathway sampling in the 50-mile EPZ, M
& interdiction of contaminated foods, and
- 3) -
- 4) ' issuance of protective action recommendations via the radio and local emergency broadcast network.
- Cordaro and Weismantle, ff. Tr.13,899, at 6-7 (2). Under the LILCO Plan, LERO would y w
I perform all four of these functions in the absence of State participation. Ld. (4).
The Board ruled in favor of the Interveners on Contention 92. 21 NRC at 882-85.
I In doing so the Board looked to the guidance of NUREG-0654 and determined that such
- h.n guidance "cannot be met in this case where the State refuses to participate in planning
'k or to. commit to respond in an emergency." Ld. at 884. The Board further reasoned that:
[T]hc provisions hf 10 C.F.R. S 50.47(c)(1) for adequate in-terim compensating measures were not intended to stretch I as far as'LILCO urges in'this case where no participation whatever from State and local authorities can be counted
n I on. NUREG-0654 counsels that reviewers can find that an adequate state of emergency preparedness exists if weak-nesses in one organization are identified but compensated for in another organization. NUREG-0654, at 24. However, the term " weakness" in that context applies to specific
. we'tknesses regarding elements of. the implementing guld-ance. We cannot read that language to apply to total with-drawal of State and County support from emergency plan-ning P.nd preparedness.
Ld. Based on this reasoning the Board concluded, in part:
The Board has no trouble finding that IJLCO has the capability to perform the four specific tasks that have been identified as State functions; however, we have a great deal of trouble accepting that this is all that a State might do in a genuine emergency. Clearly the State has broader powers and resources than those called for in performing the four .
specific elements of State emergency function. Uncertainty about the course of future events requires that commitment, resources, and decis'onmaking capability regarding elements of the Plan be in place now.
l Ld. at 884-85.
LILCO appealed the Board's ruling on Contention 92. See LILCO's Brief Sup-porting Its Position on Appeal from the " Partial Initial Decision on Emergency Plan-ning" of April 17,1985, at 66-70 (June 3,1985). The appeal was stayed while the Ap-peal Board considered a separate appeal of the Board's decision on Contentions EP 1-10, i
the " legal authority" issues. The Appeal Board affirmed, in ALAB-818, the finding in the PID that LILCO lacked the legal authority to implement material features of its plan in conformity with NRC regulations. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-818,22 NRC 651 (1985).
LILCO next sought, and was granted, an appeal of ALAB-818 (the legal authority decision) to the full Commission. LILCO's appeal of the Licensing Board's ruling on 1 Contention 92 remained in abeyance while the Commission undertook its review of j A LAB-818. -.
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In CLI-86-13 the Commissi reversed ALAB-818 and remanded to the Licensing ,
i Board certain f&ctual questions concerning the adequacy of the LILCO Plan, these )
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questions to be considered in light of the Commission's determination that it was " legal- ]
- y obligated to/ consider whether a utility plan, prepared without government coopera-
- lon, can pass muster" Long Island Lighting Co. (Shoreham Nuclear Power Station, I
Unit 1), CLI-86-13,24 NRC 22,29 (1986). The Commission reasoned, in part:
A utility plan might pass muster under 10 C.F.R. S 50.47(c).
Section 50.47(c) provides for licensing . notwithstanding 1 noncompliance with the NRC's detailed planning standards: l (1) if the defects are "not significant"; (2) if there are "ade- J quate interim compensating actions"; or (3) if there are "other compelling reasons." The decisions below focus on (1) and (2) and we do likewise. j j
The measure of significance under (1) and adequacy )
under (2) is the fundamental emergency planning licensing J standard of S 50.47(a) that "no operating license . . . will be issued unless a finding is made by NRC that there is reason-able assurance that adequate protective measures can and will be taken in the event of a radiological emergency." The root question becomes whether the LILCO plan can provide for " adequate protective measures . . . in the event of a ra-diological emergency."
This root question cannot be answered without some discussion of what is mean by " adequate protective meas-utes." . . .
In addressing this question the Boards below presumed that the LILCO plan must essentially achieve all that a fully coordinated plan can achieve. In essence, the Boards de-fined what is reasonable and feasible for Shoreham solely in terms of the nature o' Ele site and environs without regard for the degree of possible government cooperation. This inexorably led the Boards to rejection of the LILCO plan on the ground that LILCO could not lawfully accomplish all that cooperating governments might in the event of an acci-dent.
We believe that flexibility is called for by the legal requirement that we consider a utility emergency plan. It is very unlikely that any utility plan could ever pass such a strict test. We could conceivably define what is reasonable and feasible dose reduction for Shoreham solely in terms of what LILCO itself can reasonably and feasibly achieve, but
- y. ' - ,
l we are not prepared to do so.: Ra'her,' we might look ia- ,
,, i vorably on the LILCO plan if there was reasonable assurance that it was capable of achieving dose reductions in the event -
< i of an accident that are generally comparable to what might be accomplished with government cooperation.'
+ .
I_d. at 29-30 (footnote omitted).
The Commission further held that:
- ' [I]f
- Shorenam were to go into operation and there were to 4
be a serious accident requiring consideration of. protective actions for the public, the State and County officials would-be obligated to assist, both as a matter of law and as a mat-ter of discharging their public trust. See N.Y Exec. Law art.
2-B $ 25.1. See also H.R. Rep. No. 212, 99th Cong.,1st Sess.
- (1985) . . . . Thus, in evaluating the LILCO plan we believe that we can reasonably assume some "best effort" State and County response in the event of an accident..
Ld. at 31 (1). The Commission then directed the Appeal Board to reconsider its deferral.
~
.of LILCO's appesi on Conten' tion 92 in light of. CLI-86-13. Ld. at 31-33. The Appeal Board has done so, and Contention 92 is once again before this Board pursuant to the in-structions on remand in ALAB-847: -
The Board should now revisit its earlier decision in light of the Commission's determination that the lack of state cooperation does not per se. render LILCO's plan inade-
. quate. It this rega't!, the Board must take into account that
.the' Commission's regulations establish the regulatory: re-quirements. Contrary to the Board's apparent earlier belief, a utility plan cannot be deemed to have shortcomings simply because a governmental body may perform various unde-scribed functions not required by the regulations.
- Lonsr Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-847,24 NRC 412, 432 (1986).
In light of CLI-86-13 and ALAB-847, LILCO submits that Contention 92 must now be resolved in LILCO's f avor, as explained below.
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II. Arstument The Appeal Board notes in ALAB-847 that this Board based its ruling on Conten-tion'92 on two grounds. The first was the Board's conclusion that the LILCO Plan could not comply with 10 C.F.R. S 50.47(c) and NUREG-0654. This has been "specifically re- q
' jected by the Commission." ALAB-847,24 NRC at 432.
The Board's second ground for deciding Contention 92 was its belief that the pub-lic health and safety could not be as well protected by LILCO acting alone as it could if LILCO acted ',n concert with governmental authorities. & at 430-31. As to this second ground, the Appeal Board has made it clear that the issue on remand is simply whether the LILCO Plan is satisfactory to perform the four state functions:
On remand, the Licensing Board shall reexamine whether-there are identifiable deficiencies in LILCO's ability to ful-fill the four state functions so as to render the LILCO plan inadequate. If, however, the Board continues to believe that
' the insufficiencies in LILCO's plan result solely from either (1) LILCO's inability to do things not required by the regula-tions, or (ii) the State's capacity to provide a level of safety beyond that considered adequate, it must find that LILCO has prevailed on Contentica 92.
E at 432 (8).
Given the directions provided in ALAB-847 and this Board's own PID findings on this matter, no genuine triable issue of material fact exists with regard to the adequacy of the LILCO Plan to fulfill the four state functions. Consequently LILCO is entitled to judgment on Contention 92 as a matter of law.
A. The Board has already determined that the LILCO Plan can adeauately fulfill the four state functions It cannot now be disputed that the LILCO Plan is adequate to fulfill the four State functions: "The Board has no trouble finding that LILCO has the capability to perform the four specific tasks that have been identified as State functions . . . ." 21 NRC at 884 (5). i l
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The Board's accompanying observation that it has a " great deal of trouble ac- i cepting that that is all that a State might do in a genuine emergency," id. at 884-885, !
can no longer be a basis for denying an operating " Sense, for two reasons.
l The first reason is that the Appeal Board has directed that any finding of inade- 1 l
quacy must relate to specific identifiable deficiencies. Moreover, such deficiencies must t>e fallures to do something required by NRC regulations. But for a Board to find a specific deficiency there must first be (1) a contentions alleging the deficiency with the requisite specificity and basis and (2) evidence of the deficiency.
Neither of these prerequisites exists. There is no admitted contention specifying any deficiency other than the ones already resolved in LILCO's favor. The Board has found in LILCO's favor, not only as to the four State functions litigated under Conten-tion 92, but also as to those other contentions that address the 50-mile EPZ, where nor-mally the State plays a principal role. See PID, 21 NRC at 875-82. For example, the Board concluded that LILCO's plan for, aniong other things, buying up contaminated foodstuffs to keep them off the market is workable. Id. aI 878. Nor is there any evidence of any deficiencies, other than evidence that has already failed to prove the Plan inadequate. On Contention 92 the Interveners presented no direct case at all.
Moreover, they cross-examined LILCO's witnesses hardly at all; the cross-examination !
takes up only three pages of transcript (Tr. 13,900-02; see also Tr.13,905) and is entire-ly inconsequential.
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g Ordinarily an operating license Licensing Board decides only issues that are in controversy. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),
ALAB-830, 23 NRC 59, 60 (1986). A Board may raise an issue sua sponte only if it is a significant safety, environmental, or security issue, and this power is to be exercised l'
" sparingly." 10 CFR S 2.760a; Consolidated Edison Co. of New York (Indian Point, Units 1, 2, and 3), ALAB-319, 3 NRC 188,190 (1976).
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The second reason why Contention 92 must be decided in LILCO's favor as a matter of law is that the Commission's decision in CLI-86-13 recognizes that in a real emergency the State would supplement (if not supplant) LILCO's efforts by responding to the emergency on a best-effort basis (1). (In New York's case, a best-effort response would be aided by experience at six other operating units at three sites in the State.) In light of CLI-86-13, then,it can be seen that the only " deficiency"in LILCO's Plan is re-ally a strength. LILCO has had to plan for an emergency without taking credit for the State's resources. But in an emergency the State's resources would be available, as CLI-86-13 makes clear. Hence at Shoreham, alone of all nuclear plants in this country, there are two entities - the State and LILCO - each capable of performing the four State functions identified on the record. The " absence" of a State plan has in fact forced the provision of two duplicate sets of resources to handle a single set of prob-lems. Even if it were true that the State could physically do some things that LILCO cannot (and the record does not suggest that it is), a best-effort response by the State would include doing those things if necessary.
Thus, since the Board's original finding on Contention 92 was premised on the ab-sence of State participation in an emergency response, and since CLI-86-13 has re-versed that premise, Contention 92 must now be resolved in LILCO's favor.
B. Coordination with the State
'- is not a Liticable Issue Contention 92 also mentions the alleged failure to " provide for coordination of LILCO's emergency response with that of the State of New York." But the issue of coordination plays no role in the resolution of Contention 9 for two reasons. First, it is clear that the Board's original ruling on Contention 92 was based on the absence of a State response altogether, not on a lack of coordination.
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Second, the issue of coordination between LERO and the State is part and parcel of the " Realism" issue and should not be duplicated under Contention 92. Indeed, the coordination issue should be resolved in LILCO's favor summarily in connection with LILCO's Second Renewed Motion for Summary Disposition of the " Legal Authority" Is-sues (Contentions EP 1-10), dated March 20,1987.
" Coordination" is for the most part simply being able to talk with the State, and, as LILCO's March 20 motion shows, the communications systems and related facilities have been provided. Indeed, the Board has found that LILCO has done everything possi-ble to accommodate the State. For instance, in describing how the LILCO Plan accom-modates State and local governmental participation, the Board notes:
Communication systems are installed within the State and space for State officiak exists in the LILCO emergency op-erations facility, emergency operations center, and the emergency news center. LILCO's Director of Local Re-sponse will take into account advice that may be received from local and State government officals. The Board con-cludes that LILCO has done all that it can in this matter.
21 NRC at 883 (citations omitted; emphasis added). Later, in concluding that LILCO had not prevailed on Contention 92, the Board said that it was "well aware that LILCO k
cannot remedy this situation; a finding of deficiency penalizes it for circumstances beyond its control." Id. at 885 (emphasis added). If LILCO has done all that it can and still cannot satisfy NRC regulations, h can only be because a utility plan is inherently incapable of satisfying the regulations, and that conclusion would be contrary to CLI- l
.q 86-13. I Finally, it is inherently implausible that a lack of coordination would prove a health and safety problem for the functions addressed by Contention 92. All four of the specific tasks that the State would perform in a radiological emergency have to do pri-marily with the ingestion pathway EPZ. They involve activities generally conducted in l l
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the af termath of an accident, when there is time for deliberation. See 21 NRC at 875-880 (3). One can simply not imagine how a State's preemergency lack of cooperation i
would hinder, for example, the monitoring of water supplies af ter an accident. J l
In short, no issue of litigable fact exists under Contention 92. LILCO should pre-vail as a matter of law. l l
IIL Conclusion and Request for Relief )
In conclusion, for the reasons cited above, LILCO hereby asks for summary dis-position of the issue remanded in ALAB-847 concerning the adequacy of the LILCO Plan .
in fulfilling the four State functions.
)
Respectfully submitted, 1
James N. Christman =
David S. Harlow i
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Hunton & Williams j P.O. Box 1535 Richmond, VA 23212 DATED: September 11, 1987 l
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. . i I LILCO, September 11,1987 i
STATEMENT OF THE MATERIAL FACTS i AS TO WHICH LILCO CONTENDS l i
THERE IS NO GENUINE ISSUE TO BE HEARD ON CONTENTION 92 (NO NEW YORK STATE EMERGENCY PLAN)
I The following are the material facts as to which LILCO contends there is no l genuine issue to be heard under Contention 92: j 1
- 1. The State of New York and the County of Suffolk would m:uce a "best ef-f fort" response utilizing the LILCO plan as the best source for emergncy planning information and options in the event of a radiological ac:Ident at the Shoreham Nuclear Power Station. Long Is' .nd Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13,24 NRC 22,31 (1986).
- 2. The four specific functions which the State of New York would be expect-ed to perform in the event of a radiological emergency are:
a) dose projection based on release data communicated to State offi-cials, b) ingestion pathway sampling in the 50-mile EPZ, c) interdiction of contaminated foods, and d) issuance of protective action recommendations via the radio and local emergency broadcast network.
See Cordaro and Weismantle, ff. Tr.13,899, at 6-7.
- 3. The four state functions have to do primarily with the ingestion pathway EPZ and involve activities generally conducted in the af termath of an ac-cident when there is more time for deliberation. See Long Island Lighting ,
pg (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644, 875-80 (1985).
4.- Under the LILCO plan, LILCO will perform the four state functions in the absence of State participation but will defer to the decisions and recom--
' mendations of the local and State governments if so ^ requested. See Cordaro and Weismantle, ff.~ Tr.13,899, at 6-9.-
5.- LILCO.has the capability to perform the four specific tasks that have been. identified- as state functions. See Long Island Lighting Co.
. (Shoreham Nuclear. Power Station, Unit 1), LBP-85-12, 21 NRC 644, 884
-(1985).
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. LILCO, Sept 2mber 11,1987 -
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CERTIFICATE OF SERVICE '87 SEP 14 P4 :00 V ,
3rc; 00 Chi i.. ,. 3~
-In the Matter of . .
la c LONG ISLAND LIGHTING COMPANY,.
c.
(Shoreham Nuclear Power Station, Unit 1) -
F Docket No. 50-322-OL-3' I hereby certify that copies of LILCO'S MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION 92 (NO NEW YORK STATE EMERGENCY PLAN) were served this
- date upon the following by. telecopier as indicated by one asterisk, by Federal Express as indicated by two asterisks, or by first-class mail, postage prepaid.
Morton B. Margulies, Chairman ** Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board .
U.S. Nuclear Regulatory Commission l U.S. Nuclear Regulatory Commissire 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. JArry R. Kline ** Washington, D.C. 20555 Atomic Safety and Licensing Board: Richard G. Bachmann, Esq. ** ,
U.S. Nuclear Regulatory Commission George E. Johnson, Esq.
East-West Towers, Rm. 427 : U.S. Nuclear Regulatory Commission 4350 East-West Hwy. 7735 Old Georgetown Road J Bethesda, MD 20814 (to mailroom) .
Bethesda, MD 20814 :
Mr. Frederick J. Shon ** l Atomic Safety and Licensing Herbert H. Brown, Esq. ** j Board Lawrence Coe Lanpher, Esq. 1 U.S. Nuclear Regulatory Commission Karla J. Letsche, Esq. j East-West Towers, Rm. 430 Kirkpatrick & Lockhart l 4350 East-West Hwy, South Lobby.- 9th Floor 1
' Bethesda, MD 20814 - 1800 M Street, N.W. I
' 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 L
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4 n-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
- Spence W. Perry, Esq. ** Ms. Nora Bredes William R. Cumming, Esq. Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency. 19S 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 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 P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider ,
i Federal Emergency Management North Shore Committee Agency P.O. Box 231 i 26 Federal Plaza Wading River, NY 11792-New York, New York 10278
)
James N. Christman l
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 1 DATED: September 11,1987 i
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