ML20198B977
| ML20198B977 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/04/1985 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20198B945 | List: |
| References | |
| ALAB-818, OL-3, NUDOCS 8511070392 | |
| Download: ML20198B977 (24) | |
Text
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- . G-UNITED STATES OF AMERICAi _
NUCLEAR REGULATORY COMMISSION u m , ,, 3
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.J Before the Commission x ,'
In the Matter of )
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LONG ISLAND LICHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station ) (Proceeding)
Unit 1) )
LILCO'S PETITION FOR REVIEW OF ALAB-818 Long Island Lighting Company (LILCO), holder of a low power op-erating license and applicant for a full power license for the Shoreham Nucle-ar Power Station, petitions the Commission to review and reverse the Appeal Board's October 18, 1985 decision, ALAB-818, on the ground that it is incor-rect on important grounds of law and policy.
ALAB-818 would deny LILCO the legal authority to take offsite ra-diological emergency response measures that the ' Commission requires be taken, that LILCO can in fact take, and that state and local governments have refused to take. If ALAB-818 becomes law, Shoreham -- a plant that is complete, safe,1/ and finished with low power testing -- cannot receive a full 1/ The plant's basic safety has been approved by a process involving op-erating license hearings in virtually continuous session since the spring of 1982, in what is probably the lengthiest and most arduous licensing proceed-ing in this Commission's history. The plant's basic design and construction were approved in late 1983, after 116 days of live proceedings, in a massive Partial Initial Decision, LBP-83-57, whose slip opinion and findings of fact total 1401 pages. The published version of the decision, containing only the (footnote continued) 8511070392 851104 PDR ADOCK 05000322 9 PDR
power license without governmental participation in emergency planning; and the Commission will have ceded its historic preemptive jurisdiction over ra-diological health and safety to veto by state and local governments. ALAB-818 conflicts with statutory and decisional precedent, ignores the record in this case, and could have dire consequences for Shoreham, for this Commis-sion, and for the nuclear industry generally. The Commission should exer-cise its discretion under 10 CFR S 2.786 to review ALAB-818.
- 1. Summary of Decision To be Reviewed ALAB-818 decides LlLCO's appeal of one aspect of the Licensing Board's two-part decision on Shoreham emergency planning issues, LBP-85-12 and LBP-85-31.2/ On the strength of 81 days of live proceedings and a record involving over 7500 pages of prefiled testimony,16,000 pages of tran-script and 200 exhibits compiled over the period from December 1983 to June 1985, LBP-85-12 and LBP-85-31 resolve essentially all factual issues in LILCO's favor.3] Only on issues relating to legal authority to perform offsite (footr.ote continued) opinion portion, is at 18 NRC 445 (1983), aff'd, ALAB-788, 20 NRC 1102 (1984), approved, see letter from Samuel J. Chilk to Herbert H. Brown, Apr.
18, 1985. The plant's emergency diesels were approved, following 46 days of live proceedings, in a.66-page supplemental decision, LBP-85-18, 21 NRC 1637 (1985). Low power operation was approved pending certification of the diesels after 21 days of live proceedings before the-Licensing Board, LBP 35A, 20 NRC 920 (1984), LBP-84-45, 20 NRC 1343 (1984), aff'd in pertinent part, ALAB-800, 21 NRC 386 (1985), CLl-85-1, 21 NRC 275 (1985), CLl 12, 21 NRC 1587 (1985).
2/ The first portion of the Licensing Board's decision treats all factual is-sues except LILCO's proposal to use the Nassau County Coliseum as a recep-tion center for evacuees. LBP-85-12, 21 NRC 644 (April 17,1985) . The second portion treats only the Coliseum issue. LBP-85-31, 22 NRC 410 (August 26, 1985). Both portions treat legal authority issues later reviewed in ALAB-818.
3/ The issues litigated ran the full gamut of emergency planning, including: the size and configuration of the EPZ; the composition, training, (footnote continued)
i .
emergency planning functions 4/ did the Licensing Board find against LILCO.
The legal authority issues at Shoreham arise out of the vagaries of local 4
politics, including local electoral results, rejection in late 1981 of a compre-hensive settlement agreement supported by the County Executive, and in-creasingly strident pressures from local antinuclear groups. The result was
- - .a reversal of several years of official previous support for Shoreham on emer-gency planning grounds.5/ This reversal culminated in February 1983 reso-lutions by the county legislature purporting to find , emergency planning to be
' impossible on grounds of radiological health and safety,g/ and therefore
~
. (footnote continued) equipping,. credibility' and role consistency of the Local Emergency Response Organization (LERO) created by LILCO to substitute for Suffolk County and New York State personnel who would normally participate in emergency plan-ning; LERO's mobilization and communication capabilities; notification of the general public; content and credibility of public information brochures, EBS messages, and other public information from LERO generally; making pro-tective action recommendations; avacuation time estimates for general and special populations under normal and adverse conditions; effect of spontane-ous evacuation (" shadow phenomenon"); use of sheltering; provisions for evacuees in reception / relocation centers; .and ingestion pathway (50 mile EPZ) meas u res. At-the Board's initiative, issues related to the effect on LERO's functioning of a 1984 LILCO strike were also tried.
! 4/ 'In addition to the legal authority issue per se, the Licensing' Board de-cided against LILCO on two closely related issues: the absence of a state
, plan, and conflict of interest. On other issues it found in all significant re-spects for LILCO.
5/ 'The current Shoreham emergency plan, for example, evolved from a plan originally developed by Suffolk County in 1981 under contract with LlLCO.
$/ The county legislature's conclusions, reached after tumultuous legisla-
.tive hearings in early 1983, were based on a late 1982 reports prepared by county consultants and employees evaluating the feasibility of various pro-tective actions in the event of a serious radiological emergency at Shoreham.
The report made use of probabilistic-risk-assessment methodology, altered
.certain assumptions and inputs -- principally, different source terms and dis-
, persion coefficients -- and attributed different significance to EPA Protective Action Guideline numbers than is typical of reports used for NRC licensing
- purposes. The resulting analysis concluded that for a large release at l
(footnote continued) 1
, , , . _ , _ _ , . . . . , _ _ , - , _ . _ _ _ _ . . . , - , . _ - ., _ _ . - - , . _ _ _ - - - - . _ . - _ ~
- 4
.4 declaring as county policy that the county (1) would withhold all its re-sources from participation in Shoreham offsite emergency planning and (2) would oppose any such efforts by other parties. New York followed suit.7f (footnote continued)
Shoreham it would be necessary to protect an area 20 miles in radius, rather than the approximately 10 miles called for by NRC regulations; that timely evacuation of such an area could not always be assured in the event of a fast-breaking -accident; and -that sheltering was not an acceptable alternative protective action. On this basis it concluded that adequate emergency plan-ning could not be assured as a matter of fact at Shoreham. The County Leg-islature implemented this conclusion in Resolution 111-1983, attached. The county thereafter spent the lengthy NRC hearing process unsuccessfully trying to convince the Licensing Board of the rectitude of its position on the merits. It is undeniable that the county reached a policy position on the basis of substantive judgments about radiological. health-and-safety matters --
L i.e., matters _within the Commission's historical area of expertise and suprem-acy; that these substantive-judgments have been rejected on the merits in Li-censing Board proceedings; and that any remaining basis for the county's po-sition therefore definitionally requires the exaltation of-its views on radiological health and safety over the Commission's.
. 7/ .So far as New York State is concerned, until Governor Cuomo took of-fice in 1983 the State also had been openly supportive of Shoreham on emer-gency planning issues. Indeed, outgoing Governor Carey was prepared in the fall of 1982 for the New York State Disaster Preparedness Commission to approve the Shoreham offsite emergency plan developed in 1981- by Suffolk 7 County. When the newly hostile Suffolk County government sued in December 1982-to block the DPC from even meeting to consider the plan, the ,
State supported LILCO in seeking, ultimately unsuccesfully, to have the DPC meet. A_fter Governor Cuomo took office, in early 1983, New York State's i
posture changed rapidly. The emergency planning proposal never resurfaced. The Attorney General supported Suffolk County's motion to ter-minate the NRC emergency ' planning proceeding in the spring of 1983 and New York acted in irreconcilable ways toward Shoreham and partially state-owned Indian Point 3: when the Rockland County government refused to participate ,
in offsite emergency planning at Indian Point in the summer of 1983, Governor Cuomo supplied state resources-and personnel for a compensating plan. Al-most simultaneously, he indicated that he would not impose a state-sponsored emergency plan for Shoreham over the opposition of Suffolk County. Since entering the litigation actively at the beginning of 1984, the state's tactics
,- have included the following: unplugging its emergency phone to Shoreham"so that 1the state could claim there were inadequate communications; refusing to r- allow public buildings to be used as relocation centers -for evacuees despite the use of state. buildings for this purpose at other nuclear sites in New York; and attempting to obstruct LILCO's planning efforts by correspondence
~from state officials to people whose cooperation is typically a part of emergen-
- cy planning, i
- , ~ ~. -. . _ _ _ _ _ . . . - _ _ . _ - - ~ _ _ _ _ . _ - - . - -
Faced with this governmental boycott, LILCO formed its own Local Emergency Response Organization (LERO) in order to meet NRC emergency response requirements. Composed of approximately 2140 persons to fill ap-proximately 1700 billets (including shift changes), LERO has been an organi-zational and physical reality since mid-1983.g/
~ Besides.-arguing, unsuccessfully, that LERO's efforts were inadequate in. fact to satisfy NRC requirements, particularly 10 CFR S 50.47, Suffolk County and New York State contended that LERO, as a nongovernmental or-ganization, lacks _ legal authority under New York State law to perform various functions necessary to implement an emergency plan that satisfies NRC regu-lations. This latter argument takes two forms: first, that various . specific LERO functions involving public communication, protective action recommen-dations, traffic facilitation and the like violate various garden-variety state laws and local ordinances not enacted with nuclear regulation in mind;9/ and second, that performance of quasi-governmental functions by a nongovernmental organization violates inherent " police powers" reserved ex-clusively to the state, irrespective of .whether such exercise conflicts with l specific statutes or ordinances. The county and state were ultimately
@/ LERO consists mostly, but not entirely, of LILCO employees. In sup-port.of LERO, LILCO has reached agreements with the Department of Energy, the Red Cross, the U.S. Coast Guard,- the Federal Aviation Administration, one aircraft company,- 11 ambulance companies,13 radio stations, and 12 bus companies (a total of 1,255 buses and 1982 ambulances /ambulettes), it has negotiated with :3' hospitals, 9 nursing and adult homes, 32 schools,13 nur-sery schools, and 14 facilities for the handicapped. It has set up 89 sirens for full coverage of the EPZ, distributed tone alert radios to 190 facilities, and' established a communications network, complete with pagers ~ and 24-hour
- coverage, for its emergency workers. It has established a continuing training program that has logged over 50,000 hours0 days <br />0 hours <br />0 weeks <br />0 months <br /> of field drills. it regu-larly mobilizes 1000 people or more for drills.
9/ _ The laws in_ question prohibit such acts as joyriding, impersonating a public officer, 'and dispensing fuel without a license.
successful in persuading a New York State trial court to accept their general
" usurpation" argument.10/
LILCO therefore asked the Licensing Board and then the Appeal Board to authorize an operating license for Shoreham despite the state judge's ruling and advanced two principal reasons in support. First, the Atomic En-ergy Act and successor legislation specifically authorize a utility emergency plan and preempt state laws that would prohibit one (the " legal authority" ar-gument) . Second, since both state and county governments would respond in fact in a real emergency, any lack of " legal authority" on LILCO's part in a real emergency would be cured (the " realism" argument).11/
ALAB-818 flatly rejects each of these arguments. it holds that the state-law restrictions on LILCO's exercise of its emergency plan are not pre-empted by federal law. Further, it rejects LILCO's " realism" argument, hold-ing that even if LILCO were assumed to have the legal authority to implement its offsite plan itself, and even if governments would agree to participate in the event of an actual emergency (though not in advance preparation for one),12/ emergency planning on this basis would lack sufficient prior 1_0/ Cuomo v. LILCO, Consol. Index No.84-461 (N.Y. Sup. Ct., Feb. 20, 1985). The court made no effort to determine whether the specific statutes adduced by Suffolk County and New York State actually conflicted with the activities in the LERO plan, but rather rested on a broad " usurpation" theo-ry.
11/ LILCO also advanced a third reason: that some of the functions that arguably conflicted with state law (principally, traffic control functions) are simply not required by NRC regulations (the " immateriality" argument).
LILCO raised each of these arguments before the Licensing Board and also before the Appeal Board in LILCO's appeal from the " Partial Initial Decision on Emergency Planning" of April 17, 1985, LB P-85-12. They were argued in two briefs to the Appeal Board. LILCO's Brief Supporting its Position on Appeal from the " Partial Initial Decision on Emergency Planning" of April 17, 1985 (June 3,1985) and LILCO's Reply Brief on the Legal Authority, Conflict of Interest, and State Plan Issues (July 24, 1985). They were argued orally on August 12, 1985.
12/ This is in fact the situation, at least with Suffolk County, where the County Executive has agreed by letter to use all county resources to respond to an actual emergency.
coordination and cooperation at all levels of goverment. The Appeal Board also denied LILCO's request for a hearing on the " realism" argument, holding that it raised no substantial factual issues.2/
- 2. Errors in ALAB-818 ALAB-818 is incorrect in five principal respects. First, it misreads federal preemption law generally by permitting the substantive views of local and state governments to take precedence over the conclusions of the Com-mission on a matter within the Commission's expert jurisdiction, the protection of the radiological health and safety of the public through offsite emergency planning. Specifically, ALAB-818 misreads the Supreme Court's decisions in Pacific Gas & Electric Company v. State Energy Resources Conservation and Development Commission, 461 U.S.190 (1983), and Silkwood v. Kerr-McGee Corporation, 464 U.S. 238 (1984) . In those cases the Supreme Court affirmed the NRC's primacy in matters of radiological health and safety but declined to construe that primacy so as to interdict a state siting statute based on eco-nomic and other nonradiological gounds (PGLE) or to prevent enforcement of traditional state tort remedies (Silkwood). ALAB-818 overlooks dispositive differences in context,14/ motive 15/ and effect16/ between the matters 2/ The Appeal Board rejected as well LILCO's " immateriality" argument, partly on the basis that it believed all the measures proposed by LILCO were actually necessary under Shoreham's facts, and partly on the basir that'the argument did not, in any event, resolve certain legal-authority issues such as command and control.
14/ The siting statute at issue in PGLE applies only prospectively and then only once, prior to plant construction. By contrast, the ability of states and localities to interdict emergency planning does not even mature until a plant has been fully constructed, vast amounts of capital committed, and alterna-tives forgone, and is thus inherently retroactive; and it recurs throughout the operating life of the plant. The tort law remedies at issue in Silkwood af-fect only the state-law consequences of actions attributable to an NRC licens-ee, and do not involve direct interdiction of Commission judgment at all.
15/ The Supreme Court found in PGLE that the statute under consideration had a sufficient nonradiological rationale and declined to speculate further (footnote continued)
decided there and those at issue here. The unavoidable fact is that New York State and Suffolk County are attempting here to veto the Commission's substantive safety judgment about a licensable plant, irrespective of the facts, by arbitrarily refusing to fulfill the role presumptively entrusted to them by the Commission's regulatory scheme._17/
(footnote continued) into motivation. It is beyond credible cavil in this case, however, that the actions of the Suffolk County legislature were based on the substitution of its members' own judgment about radiological health and safety issues for that of the Commission (see footnot'e 7, supra and attachment, Suffolk County Reso-lution 111-1983), and that the statements of Governor Cuomo evince the same motive (see, e.g., letter, Mario M. Cuomo to B. Paul Cotter, July 11, 1983, attached; Complaint for Declaratory Judgment in Cuomo v. LILCO, N.Y. Sup.
Ct. Consol. Index No.84-461).
16/ The effect of the California statute in PGLE may have included inter-diction of construction of nuclear power plants on valid state-law grounds.
The effect of the state and local actions sanctioned by ALAB-818, by con-trast, is to interdict operation of fuliy constructed plants found safe by the NRC, simply because of states' and localities' unwillingness to perform actions perfectly lawful if performed by them, sufficient in the NRC's eyes regardless of who performs them, and capable of being performed by other entities. The Supreme Court hinted broadly that it would not tolerate the indefinite exten-sion of the exception permitted in PGLE when it stated:
The Atomic Energy Act does not give the NRC com-prehensive planning responsibility. Moreover, [the California statute] does not interfere with the type of plant that could be constructed. State regulations which affected the construction and operation of fed-erally approved nuclear power plants would pose a different case.
PGLE, 461 U.S. at 223 n. 34.
17/ At issue is the ultimate shell game. Almost a year ago, a federal dis-trict court judge accepted the representations of Suffolk County that it was not' intending to substitute its judgment for that of the NRC on offsite ra-diological planning issues, and thus not intending to regulate a nuclear power plant on safety grounds, through its resolutions refusing participation in emergency planning for Shoreham. Accordingly, he found the county's reso-lutions not pre-empted by the Atomic Energy Act, and dismissed the com-plaint. COEP v. Suffolk County, 604 F. Supp. 1084 (E. D.N.Y. 1985) . What ALAB-818 does, of course, is give the resolutions exactly the effect Suffolk County had disclaimed for them, by allowing the fact of the county govern-ment's refusal to participate in emergency planning at Shoreham to operate as a fatal defect in emergency planning for the plant.
Second, ALAB-818 simply misreads out of existence the " utility plan" provisions contained in every piece of legislation -- three successive NRC Authorization Acts 18/ since 1980 -- requiring the NRC to condition operating licenses on a demonstration of offsite emergency preparedness. Each of these statutes presumes the existence of a state or local emergency preparedness plan approved by FEMA. Absent such a plan, however, each statute ex-pressly authorizes the Commission to license plants on the basis of a " State, local or utility plan which provides adequate assurance that public health and safety is not endangered by operation of the facility concerned . . . ." Com-mittee report language makes clear that Congress regarded the " utility plan" provisions as a solution to the "potentially significant problem" of noncooperating states and localities, and that it was intended to prevent utilities from being " penalized" by such noncooperation.19/ '1 he Appeal Board's interpretation, which would restrict utility plans to an adjunct func-tion in aid of otherwise inadequate state and local plans, fails to account ei-ther for the unrestricted language of the Authorization Acts or for the sub-version of federal regulatory purposes by states and localities under the
~
guise of their police powers.2_0/
18/ Pub. L.96-295, Sec.109, 94 Stat. 780 (1980) [1980 Authorization Act];
Pub L.97-415, Sec. 5, 96 Stat. 2067, 2069 (1983) [1982-83 Authorization Act]; Pub. L.98-553, Sec.108, 98 Stat. 2825, 2827 (1984) [1984-85 Authori-zation Act] .
1_9/ H. R. Rep. No. 96-1070, 96th Cong. 2d Sess. 27 (1980), reprinted in 1980 U.S. Code Cong. & Ad. News 2260, 2270.
20/ The Appeal Board would presumably permit a utility plan to operate even without a state or local plan where state or local police power restric-tions did not inhibit it. Slip op. at 24-25. However, this suggestion is illu-sory since the same types of restrictions as have been invoked in New York exist in every other state in the nation. A multitude of state court decisions hold that a state's general police powers cannot be abridged, weakened or contracted away. See, e.g. , Gay investment Co. v. Texas Turnpike (footnote continued)
Third, the Appeal Board's decision ignores the history of this proceed-ing. Two and a half years ago, under circumstances materially the same as those prevailing today, Suffolk County requested the Commission to interdict the holding of emergency planning hearings at the outset, claiming exactly what it claims today -- that without its legal imprimatur (which it had no in-tention of bestowing), any offsite emergency plan sponsored by LILCO was definitionally doomed. The Commission denied the motion to terminate the proceeding and, noting its obligation under NRC Authorization Acts to review utility-only plans, ordered the conduct of evidentiary hearings. C LI-83-13, 17 NRC 741 (1983). Though the Commission did not rule directly on the legal-authority issue raised in the County's motion, logic would have com-pelled the Commission to have granted that motion if it agreed with the argu-ment, since the argument is categorically di'spositive of the ultimate issue if the county is correct. Later that summer, in another opinion, the Commission characterized the emergency planning issues at Shoreham as " difficult."
However, the Commission continued, "they do not appear to us to be categorically unresolvable." CLI-83-17,17 NRC 1032,1021 (1983) (emphasis added). Again, if the Commission had agreed with the county's legal-authority argument, it would have had no logical choice but to consider the legal-authority issues to be categorically insoluble.21/
1 Finally, the Licensing (footnote continued)
Authority, 510 S.W.2d 147 (Tex. Civ. App. 1974); Carty v. City of Ojai, 77 Cal. App.3d 343,143 Cal. Rptr. 506 (Cal. Ct. App.1978); Littell v. City of Peoria, 374 111. 344, 29 N.E.2d 533 (1940). Moreover, virtually all state codes contain provisions cut from the same generic cloth as those cited as ob-stacles to LILCO in Cuomo v. LILCO, for example,' those prohibiting the unauthorized use of a motor vehicle [ Cal. Penal Code S 499b (West 1970 &
Supp.1985); Tex. Penal Code Ann. S 31.07 (Vernon 1974)] and those autho-rizing police officers to remove disabled vehicles from the roadway [Va. Code SS 46.1-2,1-3 (1980 & Supp. 1985); lil. Ann. Stat. Ch. 951/2, S 11-1302 (Smith-Hurd 1971 L Supp.1985)] .
21/ Disagreement with County's legal-authority argument, on th'e other hand, does not compel issuance of a license. LILCO could still have failed to
Board's lengthy and detailed opinion, thougli still on appeal, provides fine-grained evidence of the sufficiency in fact of the emergency planning struc-ture erected by LILCO. ALAB-818 cannot be reconciMd with any of this.
Fourth, acceptance of the Appeal Board's argumee in AL AB-818 would give rise to serious due process problems in one or more of the following fashions. The Authorization Acts specifically permit utility plans, and the Commission stated in promulgating 10 CFR S 50.47 that it intended fo- its regulation to be consistent with the statute.22/ if, five years into the imple-mentation of this important regulation, utilities are to learn that it denies the contingent relief from arbitrary state and local noncooperation promised by the statute,23/ any attempt to estop challenges to the regulation now would deny due process. Moreover, against the background of the Commission's previous decisions in this case rejecting the county's " categorical" legal-authority argument, the NRC's ex post facto acceptance of that argument now, over two years and untold costs into this proceeding, euld deny u'ue process . Finally, denial of legal authority to LILCO in the circunistances of this case, if it ultimately led to a denial of a license and to LILCO's inability to use Shoreham for the purposes to which it has been shown cuited. would amount to a taking without just compensation'.
(footnote continued) meet its factual burden on any one or more of the issues involving toa feasi-bility of emergency planning on Long Island or the sufficiency of its p':n.
And that task, as the Commission recognized in CLI-83-13,17 NRC at /a f, was _the function of evidentiary hearings.
22/ 45 Fed. Reg. 55,403 col.1 (Aug.19,1980); NRC July 23, 1980, Tr.
12,.85-89.
23/ Indeed, the Commission went to pains to provide its own assurances on this score, both opining that states and localities would in fact cooperate, and stating that in any event, the escape clause of 10 CFR S 50.47(c)(1) offered all necessary relief. 45 Fed. Reg. 55,404 col. 1, 55,417 col. 1, 2-3 ( Aug. 19, 1980).
Fifth and finally, the Appeal Board's rejection of LILCO's " realism" ar-gument, on ground that it does not adequately imbed advance cooperation and collaboration at all levels of government, compounds the legal-authority prob-lem. Taken to its full reach, it could invalidate even the type of stepping by one government into the shoes of an uncooperative government that the Com-mission permitted at Indian Point in 1983.
- 3. Reasons Why the Commission Should Exercise Review First, the decision could result in license denial, absent governmental participation in emergency planning at Shoreham, for a plant that has been proven safe in the most detailed litigation in this Commission's history, on the basis of a novel legal theory that is demonstrably inr:orrect. This profoundly unjust result should obviously be avoided.
More immediately, ALAB-818 has an adverse practical effect on the com-pietion of Shoreham's one remaining licensing hurdle: a FEMA-sponsored offsite emergency planning exercise. FEMA has recently indicated its will-ingness, with the NRC's concurrence, to hold such an exercise by January 15, 1986 to demonstrate LERO's actual response capability; but ALAB-818 stands in the way of FEMA's being able to reach in that exercise the ultimato affirmative safety finding on which the Commission customarily relies.24/
Equally important, there will be no way to contain abuse by states and localities of the veto power conferred by ALAB-818 to block plant licensings, shut down operating plants, or extort exorbitant concessions from operating utilities simply by withdrawing from emergency planning arrangements.
Every state has laws like those invoked at Shoreham; every state has an in-
- herent " police power" doctrine. The decision by a state or locality to i
24/ Letter, Samuel W. Speck (FEMA) to William R. Dircks (NRC), October 23, 1985.
4 a ,
withdraw from emergency planning can arise out of an unlimitable variety of circumstances ---the vagaries of elections; the denouement of policy dis-agreements between sitting governments and utilities; the attempt of govern-ments to appease extreme pressure groups. Under ALAB-818, when these events ever occur, the effect will be automatic: an NRC license is in peril, and an immediate shutdown likely. Nor will a licensee be able to force and wait for the result of state-court adjudication. Utility plans are illegal right now; no further court decisions are necessary to declare them illegal in, for instance, California, Texas, Illinois, or Virginia. Under the precedent of ALAB1818, .the NRC and FEMA will have no choice but to find illegal any utili-ty plan they review. Moreover, any applicant wanting to prepare an offsite emergency pla'n would, under 10 CFR Part 21 or other NRC reporting re-quirements, have to disclose its illegality even as it submitted the plan.M/
. ~ Where some though not all affected governments are willing to help, the emphasis in ALAB-818 on advance collaboration with all affected goverhments will limit future possibilities for compensating arrangements like those adopted for Indian Point in 1983. Just how far ahead, and how formally, must a gov-ernment be willing to commit itself to override the opposition of a coordinate government? Similarly, many plants have 50-mile EPZs lying in more than one state; some even have 10-mile EPZs lying in more than one st:(e. Where planning zones occupy more than one state, and cooperative governments are ,
' to be found in some but not all affected states, which state's rights are to be given primacy -- those of the cooperating or the non-cooperating state?
2_5/ For example, it might well be a " material false statement" to submit a utility plan ~without disclosing that is is illegal. See Virginia Elec. r, Power Co. (North Anna Power Station, Units it,2), CLl-76-22, 4 NRC 480 (1976),
aff'd, Virginia Elec. E, Power Co. v. U.S. Nuclear Regulatory Commission, 571 F.2d 1289 (4th Cir.1978).
. .= ,
4 Finally, the Commission will be hard pressed, if it cedes this as'pect of its historic primacy over matters of radiological health and safety to states, to
..- . restrict its erosion in other safety-related areas as well, so long as a st' ate
.can conj ure a col orable nonradiological rationale, no matter how spurious, for
' its actions. The resulting proliferation of standards will eviscerate this Com-mission's ability to carry out its obligation under the Atomic Energy Act to
.y regulate the nuclear industry. It will also lead to nonstandardization, insta-bility, and potential reduction in the safety of operation of reactors, and will be a total deterrent to any utility's ever again committing capital toward any
, new reactor.
Conclusion A, LAB-818 is profound in its implications for one demonstrably safe
- plant, for the Commission, and for the nuclear industry generally, it is also
, at odds with -statutory and decisional law, and with the law of this case. The 4
Commission should promptly review and reverse it.26/
Re pec fully ub itted, l
A W. Taylor Reveley, til Donald P. Irwin James N. Christman Kathy E.B. McCleskey Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 2
- DATED: November 4,1985 1
26/ Though the issues in this appeal have been briefed by the parties nu-merous times, the shape of the issues changes sufficiently with each iteration that the Commission should not make its decision on the pleadings to date, i but should set an expeditious briefing and argument schedule.
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Intro.. R33. No. 1196-83 Introduced by Legislators Wehrenberg, Caracappa, D' Andre, Geise, Allgrove, Bachi Prospect, Foley, Nolan, Blass, Rizzo, LaBua, Devine, Hariton, Beck RESOLUTION NO. 111 - 1983, CONSTITUTING THE FINDINGS AND DETERMINATIONS OF SUFFOLK COUNTY ON WHETHER A LEVEL OF EMERGENCY PREPAREDNESS TO RESPOND TO A RADIOLOGICAL ACCIDENT AT THE SHOREHAM NUCLEAR POWER STATION CAN PROTECT THE HEALTH, WELFARE AND SAFETY OF THE RESIDENTS OF SUFFOLK COUNTY WHEREAS, Suffolk County has a duty under the Constitution of the State of -
New York, the New York State Municipal Home Rule Law, and the Suffolk Counti-Charter to protect the health, safety, and welfare of the residents of Suffol)
County; and i
WHEREAS, the Long Island Lighting Company ("LILCO") is constructing anc desires to operate the Shoreham Nuclear Power Station ("Shoreham"), located or-tha north shore of Long Island near the town of Wading River, a location whict 1
is within the boundaries of Suffolk County; and WHEREAS, a serious nuclear accident at Shoreham could result in the release of significant quantities of radioactive fission products; and WHEREAS, the release of such radiation would pose a severe hazard to thE asalt's, safety, and welfare of Suffolk County residents; and
- l UHEREAS, in recognition of the effects of such potential hazard posed by
. Sho- am on the duty of Suffolk County to protect the health, safety, and
! we: a of its citizens, this Legislature on March 23, 1982, adopted Resolution No. _o2-1982, which directed that Suffolk County prepare a " County Radiological' Emargency Response Plan to serve the interest of the safety, health, and welfare :
sf tha citizens of Suffolk County .."; and WHEREAS, in Resolution 262-1982, the Legislature determined that the plan' 1Gvolcped by the County "shall not be operable and shall not be deemed adequate-and capable of being implemented until such time as it is approved by the r
suffolk County Legislature"; and WHEREAS, in adopting Resolution 262-1982, the Legislature found that 3
anrlier planning efforts by LILCO and County planners (the " original planning icta') were inadequate because they failed to address the particular problems.
poced by conditions on Long Island and further failed to account for human i sehzvior during a radiological emergency and the lessons of - the accident at ,
- three Mile Island; and WHEREAS, on March 29, 1982, Peter F. Cohalan, Suffolk County Executive, acting to implement Resolution 262-1982, by Executive Order established the Buffolk County Radiological Emergency Response Plan Steering Committee
! ("Stooring Committee") and directed it to prepare a County plan for submittal to th3 County Executive and County Legislature; and WHEREAS, the Steering Committee assembled a group of highly qualified'and toti sily recognized experts from diverse disciplines to prepare such County
- pla .nd e
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$WHEREAS, such highi. qualified exports wo r.. .d in a diligent ar.d
- onscientious effort at a cost in excess of $500,000 to prepare the best possible plan for suffolk County, and particularly to ensure that such plan took into account all particular physical and behavioral conditions on Long Island tha' ,ffect the adequacy of the emergency response plan; and WHEREAS, the analyses, studies, and surveys of such experts included:
(a) Detailed analyses of the possible releases of radiation from Shoreham; (b) Detailed analyses of the radiological health consequences of such radiation release on the population of Suffolk County, giventhe meterological, demographic, topographical, and other specific local conditions on Long Island; (c) A detailed social survey of Long Island residents to determine and assess their intended behavior in the event of a -serious accident at Shoreham; (d) A detailed survey of schoo! s drivers, volunteer firemen, and certain other emergency reay .e personnel to determine whether emergency personnel intend to report promptly for emergency duties, or instead to unite with their own families, in the event of a serious accident at Shoreham; (e) Detailed estimates of the number of persons who would be ordered to evacuate in the event of a serious accident at Shoreham, as well as the number of persons who intend to evacuate voluntarily even if not ordered to do so; (f) Detailed analyses of the road network in Long Island and the time required to evacuate persor.s from areas affected by radiation releases;
, (g) Detailed analyses of the protective actions available to Suffolk County residents to evacuate or take shelter from such radiation
- releases; and j (h) Analysis of the lessons learned from the accident at Three Mile Island on local government responsibilities to prepare for a radiological emergency; and WHEREAS, on May 10, 1982, LILCO, without the approval or authorization of
- ha Suffolk County Government, submitted to the New York State Disaster
'rcparedness Commisssion ( "D PC ". ) two volumes entitled "Suffolk County 2
tadiological Emergency Response Plan" and containing the original planning data, L to further revised and supplemented by LILCO, and requested the DPC to review ind . approve such LILCO submittal as the local radiological er.ergency response
[>1sn for Suffolk County; and l WHEREAS, in Resolutions 456-1982 and 457-1982, the County further iddrossed the matter of preparing for a radiological emergency at Shoreham and
' tmphooized that:
(a) The LILCO-submitted document was not and will not be the County's Radiological Emergency Response Plan; and l
l
, _ _ - _ . - _ _ , . . - . , , - . _ . . _ , _ , , , - , . - _ _ , , . . . ~ _ . _ . . _ _ . , _ _ _ _ _ _ , _ - , _ _ , .
.I (b)- The County's 2diological Emergency Res nse Planning Policy, as '
enunciated in Resolution 456-1982, is as follows:
Suffolk County shall not assign funds or personnel to test or
-implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been fully developed to the best_of the County's ability.
Suffolk County shall not assign funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been subject of at least two public hearings, one to be held in Riverhead, and one to be held in Hauppauge.
Suffolk County shall not assign funds or personnel to test or implement any radiological emergency response plan for the-Shoreham Nuclear Plant unless that plan has been approved, after.
public hearings, by the Suffolk County Legislature and the County '
Executive; and WHEREAS, on June 9, 1982, the DPC rejected the LILCO-submitted document or the reason that it was deficient; and WHEREAS, on October 6, 1982, LILCO, again without the approval or uthorization of the Suffolk County Government, submitted to the DPC an amended orcion of the previously submitted LILCO document which had been rejected by he DPC; and WHEREAS, on December 2, 1982, the Draft County Radiological Emergency .
co- se Plan authorized by Resolution 262-1982 was submitted to the County 69 2ture for review and public hearings as specified in Resolutions 262-1982, 56-A982, and 457-1982; and WHEREAS, in January 1983, the Legislature held hearings on the Draft sunty plan, which hearings included:
(a) More than 1,590 pages of transcripts; (b) Detailed written statements and oral testimony of County expert consultants who prepared the Draft County plan; (c) Detailed written statements and oral testimony of LILCO officials and expert consultants retained by LILCO; (d) Detailed written statements and oral testimony o'f the Suffolk l County Police Department, the County Health Department, the County Social Services department, and the County Public Works Department, all of which would have indispensable roles in i responding to a radiological emergency at Shoreham; (e) Detailed written statements and oral testimony of organizations
. in Suffolk County concerned with radiological emergency
! preparedness; and
- (f) Extensive presentations by hundreds of members of the general public; and l
l 1
.' . lntro. Res. No. 1196-83 ~
Page 4
. y .
.WHEREAS, members of the Legislature also tra.alled to and held public scarings in the vicinity of the Three Mile Island Nuclear Power Plant to gair information on the lessons to be learned by local governments from the accident
, st *'ree Mile Island; and ,
WHEREAS, the Draft County plan identifies evacuation and protective sheltering as the two primary protective actions which would need to be implemented in the event of a serious accident at Shoreham; and WHEREAS, evacuation of Suffolk County residents in the event of a radiological emergency could take as much time as 14-30 hours because of various factors, including: the limited number of appropriate evacuation routes in 3uffolk County; difficulties in mobilizing police and other emergency personnel; llifficulties residents, ensuing from spontaneous evacuation of large numbers of County thus creating severe traffic congestion; and unavilability of
- ilternate evacuation routes for persons residing east of Shoreham and thus the!
.acessity for such persons during an evacuation to pass by the plant and possibly through the radioactive plume; and
- WHE RE AS , evacuation times in excess of 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> --
and certainly
' avecuation times in the range of 14-30 hours --
will result in virtual
" immobilization of evacuation and high exposure of evacuees to radiation such
- hnt svacuees' health, safety, and welfare would not be protected; and WHEREAS, protective sheltering is designe,d to protect persons from 4
axcessive radiation exposure by such persons staying indoors until radiation j aith the greatest danger to health has passed; and 4
WHEREAS, if protective sheltering were ordered for Suffolk County
, to nts, unacceptable radiation exposure would still be experienced by sub.mantial portions of the Suffolk County population, thus making it impossible to provide for the health, welfare, and safety of these residents; and i
l WHEREAS, the document submitted by LILCO to the DPC without County tpproval or authorization is deficient because it does not deal with the actual loccl conditions, physical and behavioral, on Long Island that would be ancountered during a serious nuclear accident at Shoreham; and WHEREAS, the document submitted by LILCO to the DPC without County I approval or authorization does not ensure that effective protective action by lpercens subject to radiation exposure, in the form of evacuation or sheltering, would be taken in event of a serious nuclear accident at Shoreham, and thus such ilucument, even if implemented, would not protect the health, safety, and welfare
' af Suffolk County residents; and WHEREAS, the extensive data which the Legislature has considered make
- locr that the site-specific circumstances and actual local conditions existing an Long Island, particularly its elongated east / we st configuration which c quires all evacuation routes from locations east of the plant to pass within a isono of predicted high radiation, the ineffectiveness of protective sheltering,
- th3 covere traffic congestion likely to be experienced if a partial or complete
- avacuation were ordered, and the difficulties in ensuring that emergency i parconnel will promptly report for emergency duties, preclude any emergency
, ror se plan, if implemented, from providing adequate preparedness to protect
- the alth, welfare, and safety of Suffolk County residents; now, therefore, be Lt l
l
, RE a 0LVED , that the D -ft County plan a;omitted ', the County Legislature
~
.n.Dacember 2, 1982, if implu.onted, would not protect .4e health, we l f a re , and
- afety of Suffolk County residents cnd thus is not approved and will not be mplemented; and be it further RESOLVED, that the document submitted by LILCO to the DPC without the o approval or authorization, if implemented, would not protect the health, ei,_re, and safety of Suffolk residents and thus will not be approved and will ot be implemented; and be it further RESOLVED, that since no local radiological emergency response plan for a crious nuclear accident at Shoreham will protect the health, welfare, and afety of Suffolk County residents, and since the preparation and implementation f any such plan would be misleading to the public by indicating to County ecidents that their health, welf are, and safety are being protected when, in act, such is not the case, the County's radiological emergency planning process s hereby terminated, and no local radiolcgical emergency plan for response to n accident at the Shoreham plant shall be adopted or implemented; and be it urther RESOLVED, that since no radiological emergency plan can protect the enith, welf are, safety of Suffolk County residents and, since no radiological nargency plan shall be adopted or implemented by Suffolk County, the County
<ccutive is hereby directed to take all actions necessary to assure that
- tiono taken by any other governmental agency, be it State or Federal, are
)nciatent with the decisions mandated by this Resolution.
\TED: February 17, 1983 APP vc BY:
iY f A W:
Count 7 Executive of Suffolk County Date of Approval: o p ,2 3 73
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T Extcunvc CHAMBER ,
Mameo M cuomo AtaAW 82224 '
co.co.. . g
_a CD July 11, 1983
Dear Mr. Cotter:
The safety of our residents has been and continues to be op3 rations in concern my principal New York.in the evaluation of nuclear power plant I was, therefore, Regulatory Commission'sshocked last week by the Nuclear (NRC) opinion which states that the Long low Island power Lighting Company (LILCO) is " entitled" to a license off-site emergency planning"."despite existing uncertainties about The determinution that the Shoreham reactor could be allowed to fuel was made in the absence cf an acceptable evacuation plan and in the face of
' the real possibility that the plant may never be permitted to operate cc=mercially at full power.
the absurdity and inconsistency of currentI believe the NRC action m federal regulations governing nuclear power operations.
The NRC's action demon-strates again the crying need for clarification of the federal government's responsibility and accountability to those who must bear the burden of its regulatory scheme.
The NRC's action is especially distr'essing in light the initiative I have undertaken with the appointment of aof economi,c issues associated with the future of the Shoreham facility.
Both the NRC and FEMA (the Federal Emergency
, Management Agency) have been participating in the panel's deliberations. ~
The NRC has seen fit to make a premature judgement concerning the ultimate ability of State and loca1 governments to implement an emergency p'lan for Shoreham. .
may be less than thatWhile the magnitude of risk associated with low-power tes for full-power operation, there is
, nevertheless have been but awassubstantial new measure not addressed by the NRC. of risk which should O
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12.am' relieved, however, that the Commissicn dif nct Np!'a' low-power license for Shoreham...T.actually, direct its Atomic issue Safety and L
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I believe further that the
! ci.rd.has t acted prudently in seeking reasonable assurance from
,E.,.,,e.4eforeifuel r
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loading was permitted to begin.N . the ,n'ility :.
that a
.'Nfkfordingly I ask that the Atomic Safety and Licensing
'@%'c. ,
' M :license,.at Board [iios~ least refrain from recommending the issuance of a low-power b : completed its work.until the Shoreham Fact-Fincing Panel has
~
Etc' prevent In any event the Soard's action will 5.%.
M- examina.~ithe t. ion o.f Panel
~
the from conducting a complete and thorough,not g.m. rounding; Shoreham. . safety, econo'mic and energy issues sur-if-24 .. : :- ~~ ,
M a.. ' M. .In... 42:tH:
. :< : r + - 1.- any implementing - authorization to operate at Lx . .-ILoo low N 'so,weri~qI;$1y ent1r at its own r:.sk. echo the NRC's dicta that LILCO's management would There may be significent costs
.Nw .'... assoc'i~a.ted with low-power test'ing anc operations.
The allo-w., cation:.cf these costs a. .
,C:bv thelPublic Service Conmission.s entirely a matter for c.
Rf e termination "T5 m
$ 1oadrfuer and conduct o l'w-power testing in the face of,d gi-J.4:to.use
'J7 NRC's own words , " substantial uncertainties about ,*
,5$..ful)." 4 u..;power. :&::. . operation of the plant". *,
fy f f.
s ,r.-
- c " quest. .,I,.
ion.urge your most careful consideration of this important
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REX .Wic%f '
%~ S neerely, 3.994 m.:. ;
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Honorable ~ Paul Cotter l .'[ Chairmani
'r Atomic : Safety and Licensing Board .
East-West: Towers Building ,
4350 East-West Highway
- x.,s.Bethesda,[ .
- =-..Maryland 20555
..s . ;
Drr'Junzio J. ..
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{C i. .cc: Mr. Charles R. Palladino, Chairman, Nuclear Regulatory Commissien l:
E Long' Island Lighting CompanyPierce, Chairman and 5 v..K 4.- -
~'" Chief Executive O 55=
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y, s LlLCO, November 4,1985 CERTIFICATE OF SERVICE in the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO's Petition for Review of ALAB-818 and of LILCO's Motion for Page Limit Extension on Petition for Review of ALAB-818 were served this date upon the following by Federal Express as in-dicated by an asterisk, or by first-class mail, postage prepaid.
Nunzio J. Palladino, Chairman
- Gary J. Edles, Esq.
United States Nuclear Atomic Safety and Licens.
Regulatory Commission Appeal Board 1717 H Street, N.W. U.S. Nuclear Regulatory Washington, DC 20555 Commission Fifth Floor (North Tower)
Commissioner Thomas M. Roberts
- East-West Towers U.S. Nuclear Regulatory 4350 East-West Highway Commission Bethesda, MD 20814 1717 H Street, N.W.
Washington, DC 20555 Dr. Howard A. Wilber Atomic Safety and Licensing Commissioner -James K. Asselstine* Appeal Board, U.S. Nuclear
- ' U.S. Nuclear Regulatory Regulatory Commission
. Commission Fifth Floor (North Tower) 1717 H Street, N.W. East-West Towers Washington, DC 20555 4350 East-West Highway Bethesda, MD 20814 e Commissioner Frederick M. Bernthal*
- j. U.S. Nuclear Regulatory Morton . B . . Ma rgulies,
' Commissic n Chairman, Atomic Safety i
1717 H Street, N.W. and Licensing Board, Washington, DC 20555 U.S Nuclear Regulatory Commission, Rm. 402A
( Commissioner Lando W. Zech, Jr.* East-West Towers U.S. Nuclear Regulatory 4350 East-West Hwy.
Commission .
Bethesda, MD 20814
_1717 H Street, N.W.
Washington, DC 20555 Dr. Jerry R. Kline l
Atomic Safety and Licensing Alan S. Rosenthal, Esq., Board, Chairman, Atomic U.S. Nuclear Regulatory
' Safety and Licensing Commission Appeal Board East-West Towers, Rm. 427 U.S. Nuclear Regulatory 4350 East-West Hwy.
Commission Bethesda, MD 20814 Fifth Floor (North Tower)
East-West Towers 4350 East-West Highway Bethesda, MD 20814
7:
l Mr. Frederick J. 'Shon Mary Gundrum, Esq.
! Atomic Safety and Licensing . Assistant Attorney General Board 2 World Trade Center
- U.S. Nuclear. Regulatory Room 4614 Commission New York, New York '10047 East-West Towers', Rm. 430 -
'4350 East-West Hwy. Spence W. Perry, Esq.
Bethesda, MD- 20814 Acting General Counsel Federal Emergency
- Secretary of the Commission Management Agency U.S. Nuclear Regulatory 501 C Street, S.W.
Commission _ Washington, D.C. 20472
. Washington, D.C. 20555 MHB Technical Associates Atomic Safety and Licensing 1723 Hamilton ' Avenue Appeal Board Panel Suite K U.S. Nuclear Regulatory. San Jose, CA 95125 Commission Washington, D.C. 20555 Mr. Jay Dunkleberger New York State Energy _ Office
- - Atomic Safety and Licensing Agency Building 2 Board-Panel Empire State Plaza U.S. Nuclear Regulatory Albany, New York 12223 Commission Washington, D.C. 20555 Stewart M. Glass, Esq.
Regional Counsel
- Bernard M. Bordenick, Esq.* Federal Emergency Oreste Russ Pirfo, Esq. Management Agency
, ' Edwin J._ Reis, Esq. 26 Federal Plaza, Rm 1349 U.S. Nuclear Regulatory New York, New York 10278 ,
Commission -
7735 OId Georgetown Road -
Stephen B. Latham, Esq.
(to mailroom) Twomey, Latham r, Shea Bethesda, MD _ 20814 33 West Second Street P.O. Box 298
' Donna Duer, Esq. Riverhead, New York 11901 Attorney Atomic Safety and Licensing Jonathan D. Feinberg, Esq.
Board Panel New York State Depart of U.S. Nuclear Regulatory Public Service, Commission Staff Counsel East-West . (North Tower) Three Rockefeller Plaza 4350 East-West Hwy. Albany, New York 12223 Bethesda, MD ' 20814 William E. Cumming, Esq.
Fabian G. Palomino, Esq.* Associate General Counsel Special Counsel to the Federal Emergency Governor . Management Agency Executive Chamber 500 C Street, S.W.
Room 229 Room 840 State Capitol Washington, D.C. 20472
- Albany, New York 12224 i
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Ms. Nora Bredes Martin Bradley Ashare, Esq.*
Executive Coordinator Eugene R. Kelley, Esq.
Shoreham Opponents' Coalition Suffolk County Attorney 195 East Main Street H. Lee Dennison Building Smithtown, New York 11787 Veterans Memorial Highway Hauppauge, New York 11787 Gerald C. Crotty, Esq.
Counsel to the Governor Dr. Monroe Schneider Executive Chamber North Shore Committee State Capaitol P.O. Box 231 Albany, New York 12224 Wading River, NY 11792 A
f r.
JJ .', Idu Do_nald P. Irwin Hunton & Williams 707 East Main Street Richmond, Virginia 23219 DATED: November 4,1985