ML20024E391

Motion for Rejection of Applicant Transition Plan for Offsite Preparedness Or,In Alternative,For Certification. Transition Plan Cannot Meet NRC Emergency Planning Requirements.Certificate of Svc Encl

ML20024E391
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	08/04/1983
From:	Mcmurray C KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL-3, NUDOCS 8308100330
Download: ML20024E391 (10)

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x f Before the Atomic and Safety Licensing Boa ckk

)

In the Matter of )

)

LONG ISIAND LIGHTING COMPANY ) Docket No. 50-322

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

')

MOTION FOR REJECTION OF LILCO TRANSITION PLAN AND FOR CERTIFICATION TO THE COMMISSION On May 26, 1983, LILCO filed its " utility plan" for offsite preparedness around the Shoreham Nuclear Power Station.

That plan; in fact, consisted of five separate plans calling for implementation of an emergency response by Suffolk County, the NRC, FEMA, the State of New York and LILCO, respectively.

On June 7, the County filed a response1_/ with the Licensing Board that sought summary rejection of all of LILCO's plans other than the so-called " Transition Plan" (under which LILCO itself, acting as an entity called "LERO", assumes the entire

! responsibility for implementation of the offsite emergency re-sponse) . While the County's June 7 Response further asserted that the " Transition Plan" was inadequate on grounds that adequate emergency preparedness cannot exist where no

l_/ Suffolk County Response to "LILCO's Memorandum Of Service Of Supplemental Emergency Planning Information" And Re-l quest For Summary Licensing Board Rejection Of LILCO Emer-

! gency Plans (June 7, 1983 ) f.hereinaf ter June 7 Responsel .

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a governmental entities participate in the process, the County nevertheless stated its belief that the issue of rejection of the Transition Plan was more appropriately for decision by the Commission. June 7 Response at 2 n.3. Accordingly, also on June 7; 1983, the County filed a motion with the Commission seeking rejection of the LILCO Transition Plan.2/

,In a ruling issued on June 10; 1983; the Licensing Board limited the scope of the emergency planning proceeding to the

" Transition Plan." Order Limiting Scope of Submissions (June 10, 1983). Thereafter; the County promptly moved the Commission, on June 13; 1983; ' to reject the Transition Plan im-mediately.3/

On July 15, 1983, the Commission ruled that the County's June 7 " Motion For Commission Ruling on LILCO's ' Utility Plan' For Emergency Preparedness" was " precluded by the agency's rules." The Commission explained that the issue of summary rejection of LILCO's Plan should first be brought before the Board with a motion for certification to the Commission. Order at 1 (July 15, 1983') (unpublished). In light of the 2/ Motion For Commission Ruling On LILCO's " Utility Plan" For Emergency Preparedness (June 7, 1983).

3/ Motion For Immediate Commission Decision Rejecting LILCO Transition Plan (June 13, 1983).

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Commission's ruling, the County hereby moves the Board to reject the LILCO Transition Plan or; in the alternative, to certify the issue to the Commission pursuant to 10 CFR Sections i 2.718(i) and 2. 730 (f) . The issue to be decided or to be cer-tified is:

Whether the LILCO Transition Plan; as a mat- l ter of law, can satisfy the requirements of 10 CFR $$ 50.47(a) and (b) where neither the State nor local government has agreed to par- -

ticipate in its implementation.

Discussion A. The LILCO Transition Plan Cannot; As A Matter of Law, Meet NRC Emergency Planning Requirements On May 12; 1983, the Commission denied Suf folk County's motion to terminate the Shoreham operating license proceeding.

See CLI-83-13, 17 NRC (1983). The Commission ruled that LILCO must have an opportunity to show that adequate preparedness under a " utility plan" exists, despite Suf folk County's decision not to adopt or implement iny local emergency response plan. The Commission's May 12 decision was issued prior to LILCO's May 26 submission of an offsite " utility plan." The re fo re , the Commission did not reach the issue of whether an offsite emergency plan, as a matter of law; can meet NRC regulations without the~ participation of any governmental entities. Indeed; the Commission stated that it expressed no

L ,

6 opinion whether LILCO could submit a plan which meets "all applicable regulatory standards" because "there is no evidenti-ary record before us upon Which to provide any such opinion."

CLI-83-13, 17 NRC , Slip op. at 4 (1983). Only Commissioner Gilinsky directly addressed the issue presented by this motion in his Separate Views to the May 12 decision.

Can there be adequate emergency preparedness (as distinct from planning) if neither the State nor the County Governments will partic-ipate?

The answer is clearly, No. There cannot be adequate emergency preparedness for the sur-rounding population without the participation of a responsible government entity. And,

, however, they may qualify their views now, I

! do not believe that a single Commissioner would actually approve the operation of the plant without such participation.

l CLI-83-13, 17 NRC , Commissioner Gilinsky's Separate Views t

at 1 (1983).

On May 12, one could only speculate What kind of " plan" LILCO might file. At that time, the County, and perhaps the Commission as well, believed that -- as LILCO had publicly

! stated -- otner governmental entities were being substituted for the County. Now, however, LILCO 's so-called " Transition Plan" has been submitted to the NRC and the parties. Its essential ingredient is for LILCO itself to do everything with l

no participation of a responsible governmental entity. Thus, l

i .

a the. issue raised by Commissioner Gilinsky can no longer be avoided.

The County submits that one of the undisputed lessons of the TMI accident is that there can be no adequate preparedness without the full support and participation of the responsible governments. Without reasonable assurance of adequate emergen-cy preparedness, the NRC cannot issue an operating license to LI LC O. 10 CFR Section 50. 47 (a) (1) . Since LILCO's " Transition Plan" has neither the support nor participation of any government, that " plan" should be rejected.

B. The Issue Presented Is Appropriate For Certification To The Board Interlocutory review by way of certification to the Comndssion is appropriate when:

a failure to address the issue would seri-4 ously harm the public interest, result in un-usual delay or expense, or affect the basic j structure of the proceeding in some pervasive or unusual manner.

Consumers Power Company (Midland Plant, Units 1 and 2 ),

ALAB-634, 13 NRC 96, 99 (1981). Indeed, the Commission encourages certification where, as in this case, vital legal issues of first impression are raised:

If a significant legal or policy question is presented on which Commission guidance is needed, a board should promptly refer or cer-tify the matter to the Atomic Safety and Licensing Appeal Board or the Commission.

c Statement Of Policy On Conduct Of Licensing Proceedings, CLI-81-8; 46 Fed. Reg. 28;533; 28;535 (1981).

It is clear that the issue presented by the County --

Whether there can; as a matter of law, be a finding of adequate preparedness When no governmental entity participates -- is a vital one of first impression Which the Commission did not address When it denied the County's motion on May 12, 1983.

Now, however, following the filing of LILCO's plan on May 26 and the Board's subsequent ruling limiting litigation to the Transition Plan (in Which neither State nor local governments will participate), the issue can be placed squarely before the Commission.

Furthermore; it is evident that a ruling in the County's favor on this issue would effectively terminate the Shoreham operating license proceeding. It would thus certainly affect f the proceeding in a pervasive manner. The re fore , the issue is I

appropriate for certification to the Commission under 10 CFR $$

l 2.718(i) and 2. 730(f) .

[, Conclusion j For the foregoing reasons, the Board should grant the County's motion or, in the alternative, certify the issue raised in this motion to the Commission.

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Respectfully submitted; David J. Gilmartin Patricia A. Dempsey Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 Hdrrbert H. dirown Lawrence Coe Lanpher -

Christopher M. McMurray KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS

- 1900 M Street; N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suf folk County August 4, 1983 A

O

. 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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the MOTION FOR REJECTION OF LILCO TRANSITION PLAN AND FOR CERTIFICATION TO THE COMMISSION, dated August 3, 1983, were served to the following this 3rd day of August, 1983, except as otherwise noted.

l Ralph Shapiro, Esq.

(*) James A. Laurenson, Chairman Atomic Safety and Licensing Board Cammer and Shapiro U.S. Nuclear Regulatory Commission 9 East 40th Street Washington, D.C. 20555 -

New York, New York 10016

(*)Dr. Jerry R. Kline Howard L. Blau, Esq.

Atomic Safety and Licensing Board 217 Newbridge Road U.S. Nuclear Regulatory Commission Hicksville, New York 11801 l Washington, D.C. 20555 W. Taylor Reveley, III, Esq. (#)

(#)Dr. M. Stanley Livingston Hunton & Williams 1005 Calle Largo P.O. Box 1535 Santa Fe, New Mexico 87501 707 East Main Street l* Richmond, Virginia 23212 Edward M. Barrett, Esq.

General Counsel Mr. Jay Dunkleberger Long Island Lighting Company New York State Energy Office 250 Old Country Road Agency Building 2 l Mineola, New York 11501 Empire State Plaza Albany, New York 12223 .

Mr. Brian McCaffrey-Long Island Lighting Company Stephen B. Latham, Esq.

175 East Old Country Road Twomey, Latham & Shea Hicksville, New York 11801 33 West Second Street Riverhead, New York 11901

W Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents coalition U.S. Nuclear Regulatory Comm.

195 East Main Street Washington, D.C. 20555 Smithtown, New York 11787 Hon. Peter Cohalan Marc W. Goldsmith Suffolk County Executive Energy Research Group, Inc. H. Lee Dennison Building 400-1 Totten Pond Road Veterans Memorial Highway Waltham, Massachusetts 02154 Hauppauge, New York 11788 MHB Technical Associates Eleanor L. Frucci, Esq.

1723 Hamilton Avenue Atomic Safety and Licensing Suite K Board Panel San Jose, California 95125 U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555 Joel Blau, Esq.

New York Public Service Comm. Ezra I. Bialik, Esq.

The Governor Nelson A. Rockefeller Assistant Attorney General Building Environmental Protection Bur.

Empire State Plaza New York State Dept. of Law l Albany, New York 12223 2 World Trade Center New York, New York 10047 David J. Gilmartin, Esq.

Suffolk County Attorney Atomic Safety and Licensing H. Lee Dennison Building Appeal Board Veterans Memorial Highway U.S. Nuclear Regulatory Comm.

Hauppauge, New York 11788 Washington, D.C. 20555 Atomic Safety and Licensing Jonathan D. Feinberg, Esq.

Board Panel Staff Counsel, New York State U.S. Nuclear Regulatory Commission Public Service Commission Washington, D.C. 20555 3 Rockefeller Plaza Albany, New York 12223 l

l (*) Bernard M. Bordenick, Esq.

David A. Repka, Esq. Stewart M. Glass, Esq.

i U.S. Nuclear Regulatory Commission Regional Counsel Washington, D.C. 20555 Federal Emergency Management Agency Stuart Diamond 26 Federal Plaza, Room 1349 Environment / Energy Writer New York, New York 10278 NEWSDAY Long Island, New York 11747 James B. Dougherty, Esq.

3045 Porter Street, N.W.

Washington, D.C. 20008 l

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a 1

Spence Perry, Esq.

Associate General Counsel Federal Emergency Management Agency Washington, D.C. 20472 Mr. Jeff Smith Shoreham Nuclear Power Station P.O. Box 618 North Country Road Wading River, New York 11792 Christop er M. McMurray KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 DATED: August 3, 1983

(*) By hand delivery 8/4/83

(#) By Federal Express 8/3/83

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