ML20141M947

Memorandum & Order Denying State of Ny,County of Suffolk & Town of Southampton 851226 Motion to Cancel 860213 Emergency Preparedness Plan Exercise.Unwarranted Obstruction of Commission Licensing Decision cited.Re-served on 860205

ML20141M947
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/30/1986
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY
Shared Package
ML20141M879	List: ML20141M878 ML20141M947
References
OL, OL-3, NUDOCS 8603030098
Download: ML20141M947 (11)

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4 UNITEC STATES OF AMERICA ) '

i NUCLEAR REGULATORY C0f tMISSION 9 4 'ifg '

k C0t'.MISS10tJERS:

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! Nunzio J. Palladino, Chaiman i Thomas M. Peberts j James K. Asselstine i Frederick M. Bernthal 1 Lando W. Zech, Jr.

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LOf!G ISLAND LIGHTING CCFFAhY ) Occket No. 50-222 OL (Shoremm huclear Power Station) ) , g pag

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884ERVED FEB 5 Igg MEMORANCUP AND ORDER i

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! 04ckcrourd Long Island Lichting Company's (LILCO) application for a full power ,

cperatino license for its Shoreham Muclear Fewer Plant, located in Suffolk County, New York, is u nding before the NRC. In crder for there to be an 3dequate record for safety review of LILC0's full power application, NRC l

l regulations generally require, arong other things, that an offsite emergency plan be developed, and that there be an exercise of the plan. See 10 CFR l f

t r; 50.47 and Part 50, App. E. The exercises are generally supervised and

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conducted by the Federal Errergercy Manactment Agency (FEMA), with i participation by relevant state and local governments. In this case, however, i the erergency plan before us for review was developed and proposed by LILCO l i t '

i because the State and County refused to develop one. The LILC0 Plan for i

j Shorehan provides for the lead role for offsite erergency response to be administered by the Local Energency Pespense Organization (LERO), an

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PDR COMMS NRCC I CORRESPONDENCE PDR i

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2 organization comprised of primarily utility employees. In a December 26, 1985 motion, New York State, Suffolk County, ard the Town of Southarpton jointly moved the Comission to cancel a February 13, 1986 exercise of LILCO's emergency preparedness plan for Shoreham. LILCO ind the NRC staff oppose the notion, and we deny it for the reascos explained below.

The movants have not identified any basis in NRC regulations 'cr the filing of such a motion, which in effect attempts to interfere directly with the Commission's process for obtaining infornation necessary for its licensing decisicrs. Under NPC practice it is not clear that this type of motion is authorized or that we are cbligated to respond in any formal way. On this basis alone the motion may be denied. llevertheless, because we consider the upcoming exercise to be important in carrying cut our safety responsibilities, we are respording to the rotion in this Meroranc'un and Order.

The Nature of the Exercise In the upcoming Shorehan exercise plarred for February 13,1986, FEMA intends to cbserve a number of LERO primary response capabilities. This observation will entail an examination of facilities, plans, and communications, but will not entail interactier with the public that would be affected in the event of an actual energency. Specifically, FEMA plars to observe the following f acilitics and/or activities:

- LER0 Energency Operations Center

- Emergency Operations Facility

- Emergency News Center

- Reception Center

- Congregate Care Centers

.- 3 j - Emergency Worker Decontamination

- General Population Bus Routes j i i

!- - School Evacuation

- Special Facilities Evacuation I - Febility Impaired at Home

- Route Alerting l

, 1 Traffic Control Points i

- Impediments to Evacuation l Radiological Monitoring Accident Assessment i

i The Motion The State, County and Tcwn oppose the holding of this exercise of the j LILCO plan for essentially two reasons: (1) they contend that various court ,

l decisions make clear that LILC0 cannot implement its plan, so an exercise of j

the plan would be useless; and (2) they contend that, if the exercise is i designed to test the implementability of the LILCO plan using a sirulated State and Cconty response which was rever litigated before any NRC Board, it

! would be irrelevant to the licensing process for Shorehsm, and thus the i

j results of the exercise would be worthless for that ressen as well. He reject 1

i both reasons.

As to the first argument, it is true that a New York State Court has held l

that, in the event of an actual energency, certain elements of LILC0's emergency plan can only be implemented by flew York State or Suffolk Ccunty l

authorities. Cuomo v. LILCO,flo. 84-4605 (fl.Y. Sup. Ct. , Feb. 20,1985). The l i exercise dces not fleurt that decision; to the centrary, it presumes the l validity of the limits on LILCO's authority to implemert its plan as set forth 1

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4 in that case; the only elements of LILC0's emergency plan which will be tested are those that LILCO may lawfully do or its own. The exercise of these elements of the LILC0 plan will not, however, be useless. To the contrary, the exercise is expected to provide important and raterial information to the Conmission. For example, as we noted when we directed the NRC staff to request FEMA to schedule an exercise, the exercise will assist us in determining whether any defects that exist as a result of "the limitations of LILC0's plan when executed under the state and county restrictions" (memorandun from S. Chilk to W. Dircks, dated June 4,1985 at 1), are significant under our regulations. See 10 CFR 50.47(c)(1). Therefore, it is sinply incorrect for the movants to argue that the exercise is useless because not all of the plan's elements will be tested.

As to the second argurent, the LILCO Plan in part states that:

The role of Suffolk County, should it decide to becore involved in the respense to a radiological erergency, either because the Governor orders it to do 50 cr because the County Executive so chooses, will be for the various merbers to participate to the extent to which they are cualified by reason of prior training or experience.

Thus a fundamental factual premise for covants' secord argument, i.e., that >

the plan litigated in the Shoreham licensing prcceeding provides solely for a LILCO-only response, is incorrect. The plan provides for planned LILC0 action ,

in the event of an ad hoc State and County response to an actual energency.

Not only does the LILC0 plan anticipite the possibility of such a response, j such a response has been, in effect, promised by the State and County. The '

County Executive has stated that in the event of an actual radiological i accident at Shoreham he wculd " respond to the best of fhis: ability ard in accordance with the duties and obligations placed upon (him] by Article 2-b of the Executive Law" (letter from P. Cchalan to T. Reveley dated June 26,1985),

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5 and Governor Cuomo has stated that in a radiological eraergency, "both the State and the County would help to the extent possible; no one suggests otherwise." Governor's Press Release dated December 20, 1983.

In order to test LILCO's planned response to ad hoc governmental participation in an actual emergency acd to add more realism to the exercise, federsi employees will play the role of such officials during the exercise.

Through this role-playing, the NRC is attempting to evaluate LER0's capability (1) to accomodate the presence of state and local officials, (2) to support those officials using the resources available thrcugh LERO, and (3) to provide those officials with sufficient information to carry out their state and county responsibilities. These " actors," however, will be instructed not to play decisionmaking roles, not to assume any comsod and control authority, not to interact with trer:bers of the public so as to lead anyone to believe that they are actually county officials, and not to actually perform any state or local functions exclusively reserved to state or county officials ty state or county laws. The basis for the number of actors to be used in this aspect of the exercise and the detailed instructions they will be provided are based, primsrily, on f:ew York State plans for cther nuclear pcwer plants and the I tranrer in which New York State personnel and other counties have participated in other New York facility exercises.

Thus, contrary to movants' assertion, the simulation to be perforced during the exercise will test an actual ard important aspect of LILCO's plan.

Irdeed, the exercise currently scheduled, including the role playing, corresponds exactly with the currert status of energency plarning for Shoreham.

6 Conclusion le sum, we find that the motion presents no reason why the exercise should be cancelled.1 We further find that the conduct of this exercise, which is pemitted by our regulations, is under current circumstances both lawful and recessary to fulfill our responsibility under the Atomic Energy Act to protect the health and safety of the public.2 The exercise will allow us to evaluate whether the LILC0 plan, as described above, is as good as LILC0 claims it is er, conversely, is as bad as the State, County, and Town assert.

I The County appears to assert (Motion, p. 21) that, in the event of a radiological accident at Shoreham, Courty personnel could not lawfully make use of the LILC0 plan, even if tt.is was under the circumstances the best way to protect the safety of the citizens of Suffolk County. We find this assertion to be too preposterous an abregatirr of the County's obligations to its citizers to be taken sericutly.

The motion also states that hRC may not request an exercise at a plant "which has been denied an operating license." (See, e.g. ftotion at 3).

However, the Comission itself has not reviewed the evidentiary record on the adequacy of LILCO's plan, and consequently there is no final agency action denying LILC0 an operating license, fiovants also seen to argue that the Comission erred by failing to conduct a forral Comissiw meeting when it decioed to request the exercise.

See tiotion at 2. fio law requires such a reeting.

2 Section 103d., 42 U.S.C. % 2132d., provides that:

... no license may be issued to any person within the United States if, in the opinion cf the Commission, the issuance of a license to such person would be inimical to the cervron deferse and security or to the health and safety of the public.

Section 161c. , A2 U.S.C. 5 2201c. , authorizes the Corrission to:

... nake such studies and investigations, obtair such infomation, and hold such raetings or hearings is the Comistico may deen recessary or preper to assist it in exercising ary authority provided in this Act, or

- in the administration er enforcenert of this Act, or any regulatiers or orders issued thereunder.

7 Accordingly, we decline movants' invitation to carcel the exercise based on movants' assertion that the exercise is useless because it cannot prove that LILCO's emergency plan is sufficient to meet NRC requirements. While, for the reascrs set forth herein, we believe that the exercise is very useful, we obviously take no position on whether the exercise will satisfy our emergency planning reouirements. fur the past several years the State, County, and Town have been claining that no adeouste plan can be developed for Shoreham, and that the LILC0 plan is inadequate. They are entitled, as litigants before us, to advocate that position; they are not, however, entitled to obstruct our inouiry into the facts necessary to enable us to resolve that assertion.

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3 The motier did not inform us of a pending development directly related to the motion: a County law, now in effect and under County consideraticn ,

when its motion was filed, thet is apparently intended to make NRC ,

participation in the exercise a crime shculd the County legislature disapprove i~ of it. Because it has not been raised by the movents as a basis for their motion, we do not deal with the new local law in this Order.

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8 Chairman Palladino and Cercissioner Asselstire disapprove this order.

Chairman Palladino provided dissenting views with which Comissioner Asselstine agreed. The additional views of the Comission majority are also attached.

It is so ORDERED.

F Ir the Connission

.O JO nu G 0

N Lt SAliUEL J. CHRK

{ecretary of the Comission Dated at t!ashington, D.C.

f this b ~(day cf January,1966.

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DISSENTING VIEWS OF CHAIRMAN PALLADINO I BELIE'!E MY POSITION ON THE SCHEDULING OF AN EXERCISE AT THIS TIME IS WELL KNOWN. THAT POSITION IS AS FOLLOWS:

AFTER THINKING ABOUT THIS ISSUE A GREAT DEAL, I CONCLUDED THAT ONLY A POTENTIALLY WORKABLE PLAN SHOULD BE EXERCISED. GIVEN THE LICENSING AND APPEAL BOARD DECISIONS THAT LILCO DID NOT HAVE THE LEGAL AUTHORITY TO PERFORM MANY OF THE REQUIRED EMERGENCY RESPONSE FUNCTIONS SET OUT IN THE PROPOSED PLAN, I QUESTIONED THE USEFULNESS OF THE DRILL BEING PROPOSED.

FURTHER, THE RESULTS OF A DRILL OF AN INADEQUATE PLAN MIGHT CREATE NEW HEARING ISSUES WHICH WOULD NEED TO BE ADDRESSED AND THAT MIGHT NOT ARISE IF ONE WERE TO EXERCISE ONLY AN ADEQUATE PLAN.

I BELIEVE THAT AN EXERCISE AT SHOREHAM WHICH INVOLVES PARTICIPATION OF THE STATE, SUFFOLK COUNTY, AND THE UTILITY COULD PROVIDE, ON THE OTHER HAND, USEFUL INFORMATION ON THE ADEQUACIES OF EMERGENCY PREPAREDNESS AT SHOREHAM THAT WOULD BE OF USE AND INTEREST TO ALL PARTICIPANTS.

UNTIL THE COMMISSION COMPLETES ITS REVIEW OF THE EMERGENCY PLANNING LEGAL AUTHORITY ISSUES AND DEPENDING UPON THE OUTCOME OF THAT REVIEW, I WILL CONTINUE TO HOLD THE ABOVE-STATED VIEW.

I WOULD ADD THAT I HAVE NOT PREJUDGED, AND DO NOT INTEND TO

x PREJUDGE, ANY OPEN ISSUE IN THE SHOREHAM "PERATING LICENSE PROCEEDING.

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a_.__o- _ __._o-e Additional Views of Ma,iority ,

While we share our colleagues' "iews that the February 13, 1986, exercise would be more useful to us in discharging our regulatory responsibilities were Suffolk County and New York State to participate (and indeed we would be inclined to postpone the exercise were state and local participation certain in the near future), we are aware of nothing which suggests that there is any realistic chance of that occurring. Given the intransigence of these goverrmental bodies we believe our responsibilities require that we proceed with an exercise without them.

For the reasons stated herein, we simply disagree with the view that this exercise will not provide useful information. Whether the L'.LC0 plan -

adequately accounts for a promised, but ad hoc, governmental response (the

" realism" argument) is a matter on which we express no coinion at this time. As noted in our opinion, however, we expect the upcoming exercise to provide us with important factual information to help us resolve this issue.

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I (L,,, Y DANIIL P. MOYNIH AN 4 me vera  %.

3Cnifeb Sinfes Senale WASHINGTON, D.C. 20510 February 4, 1986

Dear Mr. Chairman:

For some time I along with many others have been urging on you my view that the exercise of the emergency plan for the Shoreham nuclear plant, scheduled for February 13, 1986, in collaboration with the Long Island Lighting Company, would be profoundly unwise, probably illegal, and a waste of public funds. I have argued particularly, though not exclusively, against the " simulation" by federal officials of hypothetical behaviors of state and local officials responsible for the health and safety of Suffolk residents. This purported substitute for local participation is extravagantly ill-conceived.

Perhaps you are being advised that the local opposition to the Shoreham plant threatens the future of nuclear power in this country. May I respectfully offer my judgement that the reverse is more nearly true. If anything like the future of nuclear power in the United States is at stake, the cause is the actions of befuddled administrators who are forcing this ill-conceived exercise on the people of Long Island while they hope no one else is watching. They are wrong. As a member of the Nuclear Regulation Subcommittee of the Committee on Environment and Public Works, I can assure you that this fiasco will be taken as prima facie evidence of elemental incompetence on the part of those responsible for nuclear regulation in the Federal Government.

Put plain, if you believe that the extraordinary simulation planned for February 13 is a real test of a real question, then the you will believe anything. If this is true then the nation is in danger as well as the people of Long Island, then we had best close the Commission down.

I beg of you to consider how much is at issue. Considering the potentially enormous stakes, one would have hoped that the exercise planned for February 13 would have yielded by now to some more sensible course.

Since that hope has been disappointed thus far, I write to advise you that I am in the process of having embodied in a formal Declaration and Remonstrance setting out the legal and prudential considerations that should inform the ultimate exercise of judgment. The document should be ready for s submission to you and others no later than February 10, 1986. 9L)

While it might prove to reveal no surprises, it will at least marshal in one package the relevant considerations, submitted in -4 the understanding that those who govern judiciously accept the '

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obligation to weigh and reconsider critical issues. You may wish in the meantime at least to postpone the February 13 exercise.

Or you may be persuaded even now that the exercise is a serious mistake. In any event, I believe this Declaration and Remonstrance should be lodged with you for your convenience and as a record of the matters you have been called upon to consider.

Sincerely, ,

wlka Daniel Patric

.v oynihan Honorable Nunzio J. Palladino Nuclear Regulatory Commission 1717 H Street, NW -

Washington, DC 20555 l

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