ML20236V708
| ML20236V708 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/30/1987 |
| From: | Latham S, Mark Miller, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#487-4972 CLI-86-13, OL-3, NUDOCS 8712070019 | |
| Download: ML20236V708 (83) | |
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. 00LKETED-USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 EC -3 Pl2 :36 Before the Atomic Safety and Licensina Board 0FRCE OF M'WY
' 00CKEllNG !. SEHvicf.
BRANCH
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In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
GOVERNMENTS' REPLY TO VIEWS AND SUPPLEMENTAL BRIEFS OF LILCO AND THE NRC STAFF CONCERNING THE CLI-86-13 REMAND PROCEEDING AND THE IMPACT OF THE OCTOBER 29 RULE ON THAT PROCEEDING Filed: November 30, 1987 Filed By:
Suffolk County, the State -)
of New York, and the Town of Southampton I
genkt o ena PDB G
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TABLE OF CONTENTS Pace No.
I. INTRODUCTION..................................... 1 II. REPLY TO COMMENTS CONCERNING THE IMPACT OF THE NEW RULE ON THE CLI-86-13 REMAND PROCEEDING....................................... 3 A. Introduction................................ 3 B. LILCO and the Staff Ignore Threshold Issues Raised by the New Rule Which Must be Addressed Before any Proceeding Under that Rule May Begin........ 6 C. It Would Be Premature to address in this Procedural Filing LILCO's Argument that One Effect of the New Rule Is to Make it Appropriate for LILCO to File Yet Another Summary Disposition Motion on Contentions 1-10............................ 8 D. The Presumption in the New Rule Is !
Not Mandatory and it Cannot Be Adopted in this Case........................ 9
- 1. LILCO and the Staff Ignore the Language in the New Rule Itself................................. 9
- 2. Based on the Facts and Evidence Presented in This Case, the Non-Mandatory Presumption Cannot Be Adopted with Respect to the State of New York and Suffolk County................................. 13 (i) The Board Has Already Ruled that the Presumption Is Contrary to the Evidence in This Case...................... 14 (ii) There Is No Basis to Argue that the Board's Prior Rulings Should be Changed......... 16 i
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Pace No.
- 3. Even Assuming, Arcuendo, that the Presumption Could Be Adopted in This Proceeding, It Has Already Been Rebutted.......................... 19 E. The Presumption in the New Rule Can Be Rebutted By Showings Different From the One Provided as an Example in That Rule..... 21 F. Even Assuming, Arcuendo, that'the Governments Needed to Rebut the Presumption a Second Time, They Are Entitled To Do So........................... 23 III. LILCO BEARS THE BURDEN OF GOING FORWARD AND THE BURDEN OF PROOF IN THE CLI-86-13 REMAND PROCEEDING................................ 24 A. Overview of the Relevant Legal Principles.................................. 25 B. The Governments Have More than Satisfied Their Burden of Going Forward on Contentions 1-10 by Prevailing on the Legal Authority Issues Raised by Them....................... 27 C. The CLI-86-13 Remand Proceeding Is Focused on LILCO's " Realism" Affirmative Defense to Contentions 1-10......................... .............. 29 D. The Burden of Going Forw.6 6e und the Burden of Proof, on. its healism Affirmative Defense Rests on LILCO.......... 30 E. The New Rule Does Not Support or Justify Any Change in Burden Allocation in This Case................................ 32 IV. REPLY TO VIEWS ON THE SCOPE OF THE CLI-86-13 REMAND PROCEEDING................................ 34 A. Introduction................................ 35 B. LILCO's Views Ignore This Board's Prior Rulings and CLI-86-13................. 39 1
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Pace No.
I C. The Staff's Views Also Ignore the Board's Rulings and CLI-86-13............... 45 l
D. Issues To Be Considered in CLI-86-13 l Remand Proceeding........................... 48 ]
- 1. New Issues Created by the I i
New Rule............................... 48
- 2. Issues Related to Contentions 1-10................................... 50 (i) Contentions 1 and 2 --
Guiding Traffic and Blocking Roadways, Erecting Barriers in Roadways, and Channeling Traffic.......................... 51 (ii) Contention 4 -- Removing Obstructions from Roadways, Including Towing Vehicles........ 54 (iii) Contention 5 -- Alerting the Public....................... 56 (iv) Contention 6 -- Protective Action Decisions and Recommendations.................. 58 (v) Contentions 7 and 8 --
Ingestion Pathway and Recovery and Reentry............. 60 (vi) Contention 9 -- Dispensing Fuel............................. 63 (vii) Contention 10 -- EPZ Access Control.......................... 65 E. Use of Existing Record...................... 66 V. SCHEDULE FOR THE PROCEEDING...................... 67 A. General Comments.......... ................. 67 B. The Board Should Schedule a Preliminary Conference of Counsel....................... 72 I
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November 30, 1987 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Board
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, ) ;
Unit 1) )
)
GOVERNMENTS' REPLY TO VIEWS AND SUPPLEMENTAL BRIEFS OF LILCO AND THE NRC STAFF CONCERNING THE CLI-86-13 REMAND PROCEEDING AND THE IMPACT OF THE OCTOBER 29 RULE ON THAT PROCEEDING 2
I. INTRODUCTION In accordance with the Board's Order of November 9, 1987, confirming the " Proposed Joint Briefing Schedule on Realism Issues Pursuant to the Board's October 30, 1987 Order" (Nov. 6, 1987), as 1
modified by the Board's Memorandum and Order of November 23, 1987, Suffolk County, the State of New York, and the Town of Southampton (the " Governments") respond in this Reply to the views of LILCO and the NRC Staff expressed in their October 30 filings concerning
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. the scope of the CLI-86-13 remand proceeding, and their November 17 supplemental briefs concerning the impact upon the remand proceeding of the new rule, adopted October 29, 1987.1/
This Reply is organized as follows. First, we address in Section II the LILCO and Staff comments about the impact of the new rule upon the CLI-86-13 remand proceeding. Next, in Section III, we address LILCO's arguments about the allocation of burdens (of going forward and of proof) in this proceeding. Then, in Section IV, we address the LILCO and Staff comments about the 1/ For ease of reference, the following shorthand references to the parties' previous filings and pertinent Board Orders are used in this Reply.
"LILCO's Views on the Issues and Schedule in the Realism Remand" (Oct. 30, 1987) is referred to as "LILCO Oct. 30 Views."
The "NRC Staff Response to the Board's Memorandum Requesting the Views of Parties on the Matters to be Decided on the Realism Remand" (Oct. 30, 1987) is referred to as " Staff Oct. 30 Views."
The "Suffolk County, State of New York, and Town of Southampton Response to Board's Memorandum to Parties of October 8, 1987
(Oct. 30, 1987) is referred to as the " Governments Oct. 30 Views."
"LILCO's Supplemental Brief on the New Emergency Planning Rule" (Nov. 17, 1987) is referred to as "LILCO Supp. Brief." The "NRC Staff Supplementary Brief on Impact of October 29, 1987 Rule on CLI-86-13 Remand Proceeding" (Nov. 17, 1987) is referred to as '
" Staff Supp. Brief." The "Brief of Suffolk County, the State of New York and the Town of Southampton on the Effect of the Com-mission's October 29, 1987 Rule on the CLI-86-13 Remand Pro-ceeding" (Nov. 17, 1987) is referred to as the " Governments Supp.
Brief."
This Board's Memorandum and Order (Ruling on Applicant's l Motions of March 20, 1987 for Summary Disposition of the Legal Authority Issues and of May 22, 1987 for Leave to File a Reply and Interpreting Rulings Made by the Commission in CLI-86-13 Involving the Remand of the Realism Issue and Its Effect on the Legal Authority Question) (Sept. 17, 1987) is referred to as the
" September 17 Order." This Board's Memorandum and Order (Ruling on Applicant's Motion of October 5, 1987 for Reconsideration and Other Relief) (Oct. 29, 1987) is referred to as the " October 29 Order."
. scope of the CLI-86-13 remand proceeding; in addition, and in light of those LILCO and Staff comments, we set forth the Govern-ments' position concerning the issues which are presented by this !
I remand proceeding. Finally, in Section V, we discuss the sched-ules proposed by LILCO and the Staff for the conduct of this proceeding and the need for the Board to convene a conference of counsel as the first step in going forward'with this proceeding.
1 In light of the Board's directions in its November 23, 1987 Memorandum and Order, the Governments have not attempted in this Reply to address the substantive issues potentially raised in the other parties' filings, particularly those in LILCO's Supplemental Brief.3/
II. REPLY TO COMMENTS CONCERNING THE IMPACT OF THE NEW RULE ON THE CLI-86-13 REMAND PROCEEDING A. Introduction In their November 17 SupplementalBrief, the Governments stated, concisely and clearly, their views concerning the impact i
of the new rule on the CLI-86-13 proceeding. For the reasons stated in that Brief, the new rule has essentially no impact on the issues presented in this remand proceeding.3/ i 2/ The Board stated that the current round of briefs did not constitute "an opportunity to litigate substantive issues" and that there was no need for the Governments to respond " point for point" to LILCO's Supplemental Brief. Memorandum and Order (Nov. 23, 1987) at 3. "[T]here is no need to respond to substantive issues now." Id.
3/ Nothing said in this Reply should be viewed as indicating (footnote continued) l l
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. In contrast, LILCO and the Staff argue that the new rule has far-reaching consequences. They claim that the rule sweeps aside the Governments' due process rights to a hearing and sets the stage for the Commission to deliver LILCO a license. This claim is unfounded. Indeed, it is repudiated by the Commission's own words during the rulemaking and those contained in, and accompanying, the final rule. There the Commission guaranteed case-by-case adjudication based on case-specific facts and evidence of record; it suggested that Licensing Boards may adopt a presumption, but one which is rebuttable, and to be addressed in light of facts and evidence, not by summary decisions based on superficial and self-serving conclusions; and it specifically denied that the rule guarantees any license, specifically including Shoreham in that denial. Egg, e,o., 52 Fed. Reg. 42081 (1987) (The rule "will not assure a license to any particular plant . . . . Whether a utility qualifies for a license will
" depend on the record developed in a specific adjudication
. . . . ").
In their recent filings, LILCO and the Staff ignore the plain words of the rule and the Commission's comments on it. In essence, they engage in revisionism in " interpreting" the new (footnote continued from previous page) that the Governments believe the Commission's new rule to be !
I legal. To the contrary, the Governments believe that the new rule is fundamentally illegal, and they intend to challenge the rule in .
I the courts in the near future. Thus, the views presented here are intended only to comply with this Board's Orders requesting the parties to comment upon the impact of the new rule on the remand proceeding.
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, rule, apparently because, as promulgated by the Commission, it does not suit the interest of their partnership. LILCO and the Staff also ignore the facts and evidence in the record of this adjudication, as well as the Commission's and this Board's own prior binding rulings in this case. In sum, LILCO and the Staff 1
advise this Board to commit gross legal error by misreading and misapplying the new rule, ignoring the evidentiary record, factual realistics, and law of the case in this adjudication, and denying the Governments their due pIccess rights.
The Governments will demonstrate in this proceeding that Shoreham cannot be lawfully licensed. They will do it under the new rule and by exercising the procedural rights guaranteed by the U.S. Constitution, the Atomic Energy Act, and the Administrative Procedure Act. It is those legal standards, the plain words of the new rule, and the record in this case that must guide this Board in framing the parameters of this proceeding. The advice of LILCO and the Staff is meritless distortion, which, if followed, can only lead this Board to repudiate its obligation to follow the rules.
The errors in the LILCO and Staff filings can best be ad-dressed by focusing on the five basic specific effects which LILCO and the Staff allege arise from the rule. They assert that:
(1) the rule entitles LILCO to file yet another motion for summary disposition of Contentions 1-10; (2) the optional presumption in the new rule "must" be applied in this case; (3) the Board's rulings, in its September 17 and October 29 Orders, concerning
. factual issues to be decided and the sworn statements of the Governor of New York and the Suffolk County Executive, must be changed; (4) the new rule's rebuttable presumption can only be rebutted by a timely government proffer of an adequate and feasible state or local radiological emergency plan that would actually be relied upon by the Governments; and (5) in this case the Governments cannot rebut the rebuttable presumption at all.1/
We address each of these arguments below.
l B. LILCO and the Staff Ignore Threshold Issues Raised by the New Rule Which Must be Addressed Before any Proceedina Under that Rule May Becin 1
LILCO and the Staff ignore two significant threshold issues concerning the applicability of the new rule to this proceeding.
These issues were identified by the Governments in their Supple-mental Brief, and they must be resolved before any proceeding, of whatever nature, could begin under the auspices of the new rule.
First, appropriate criteria must be established for the review of the adequacy of a utility plan under the new rule. The Commission expressly identified this requirement as a likely prerequisite to application of the rule in particular adjudications. Eeg 52 Fed. Reg. 42087; Governments Supp. Brief at 2-3. There are no such criteria presently available.5/
1/ As noted in the text below, only LILCO makes the first and >
last listed arguments; both LILCO and the Staff assert the second, third, and fourth arguments.
5/ On Saturday, November 28, the Governments received from Staff counsel a copy of a letter to the Board enclosing a draft copy of l (footnote continued) l I
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. Second, now that LILCO has indicated its desire to have its license application decided under the new rule, and assuming arouendo that application of the rule, even in the absence of the necessary review criteria, were possible, LILCO must, as a threshold matter, submit certain information necessary to permit a proceeding under the new rule to take place. Thus, as noted in the Governments' Supplemental Brief, LILCO must specify for the Board and parties which version of its Plan it now wishes to rely upon,5/ and its bases for believing it can satisfy the require-(footnote continued from previous page) supposed criteria related to the new rule. Egg Letter from Edwin J. Reis to Judges Gleason, Kline and Shon, November 27, 1987, enclosing " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants (Criteria for Utility Offsite Planning and Preparedness, Draft Report for Interim Use and Comment)"
(hereafter, " Draft NUREG-0654, Supp. 1"). The Governments have had no opportunity to review this communication in detail. We note, however, that the Staff's assertion that this document is to be used on an interim basis in advance of public comment is clearly wrong. The Staff is a party in this proceeding; the Staff l has taken positions adverse to the Governments regarding the rule; and the Staff was involved in the preparation of these criteria.
Thus, it is absurd to suggest that the Staff can unilaterally declare that the criteria developed by the Staff will apply in this case. Due process is thrown out the window by the Staff's suggestion. Accordingly, in the Governments' view, there continues to be no criteria for applying the rule in this i proceeding. The Governments therefore believe that one item for the agenda of the conference of counsel discussed in Section V below should be the handling of Draft NUREG-0654, Supp. 1 and the need for rational criteria before this proceeding can continue.
5/ The Governments submit that no one -- including LILCO -- can presently know what version of the Plan is being relied upon by LILCO. At various times, LILCO relies upon Revision 8 of the Plan; at other times it relies upon Revision 8 plus purported draft versions of Revision 9; and most recently, LILCO has come up with new conceptual plans for school preparedness and emergency broadcast system matters, but without even bothering to amend its Plan. As a result, there is presently serious confusion among the parties regarding what they need to address in this proceeding.
,- ments in subparts (1), (ii), and (iii) of the new rule, so that contentions can be formulated as necessary and appropriate. See Governments Supp. Brief at 3-4.
The Governments emphasize that despite the failure of the Staff and LILCO even to acknowledge the existence of these threshold prerequisites for the instigation of a proceeding under the new rule, they must nonetheless be addressed and satisfied before any such proceeding could begin. Indeed, until there is an answer to the question of whether any such proceeding can be conducted (in the absence of approved review criteria), and the bases upon which LILCO believes it could satisfy the rule's requirements are revealed, it is premature to speculate about the details or likely substantive nature of any such proceeding.
C. It Would Be Premature to Address in this Procedural Filing LILCO's Argument that One Effect of the New Rule Is to Make It Appropriate for LILCO to File Yet Another Summart Disposition Motion on Contentions 1-10 Throughout its Supplemental Brief, LILCO asserts its belief that one effect of the new rule is to make it appropriate for LILCO to file yet another motion for summary disposition of Contentions 1-10 (its fourth). Indeed, LILCO asserts that its Supplemental Brief anticipates" that motion, which it intended to file "within a few days." LILCO Supp. Brief at 1.1/ The Govern-ments disagree about this "effect" of the new rule; however, it 1/ The Board's November 16 Order, however, precludes LILCO from filing a new summary disposition motion until at least December 15.
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. makes no sense to discuss that matter in the abstract, or in j filings designed to provide the parties' views on the procedural l questions posed by the Board in its October 8, 1987 Memorandum to the Parties. Should LILCO actually file a new summary disposition motion, the Governments.will respond, as appropriate, to the argu-ments advanced therein.8/
D. The Presumption in the New Rule Is Not Mandatory and It Cannot Be Adonted in this Case
- 1. LILCO and the Staff Ignore the Language in the New Rule Itself Both LILCO and the Staff assert that the new rule's provi-sion, that "it may be cresumed that in the event of an actual radiological emergency state and local officials would generally 8/ Much of LILCO's Supplemental Brief consists of assertions and arguments that "there are no litigable issues" with respect to the !'
particulars of Contentions 1-10, clearly, as LILCO acknowledged,
" anticipating" LILCO's " imminent" summary disposition motion.
Egg, e.o., LILCO Supp. Brief at 10-41. The Governments will respond to LILCO's assertions.and arguments if and when LILCO presents them in-a summary disposition motion, filed in compliance with the requirements of 10 CFR S 2.749. It would be inappropri-ate to engage in a merits discussion of LILCO's anticipatory
" sneak preview" of some yet-to-be formulated motion, particularly .
in the context of a filing in which the Board has sought the )
parties' views on largely procedural matters -- i.e., "the generic ]
effects of the new rule in this proceeding." Memorandum and Order 1 (Nov. 23, 1987) at 2. Indeed, it would be inappropriate to l respond to the myriad of factual assertions in LILCO's November 17 .
brief because those assertions are plainly irrelevant to the ,
issues which the Board asked to be briefed. The. Board sought briefs to address the new rule's impact, if any, on the CLI-86-13 remand proceeding. The Board "did not intend that this briefing (would) become an opportunity to litigate the substantive issues
.in the case." 14. at 3. Thus, as the Board stated, "there is no need" for the Governments to respond now to LILCO's lengthy (but seriously inaccurate) briefing " anticipating" some future summary disposition motion. Id.
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. follow the utility plan," requires this Board to adopt such a presumption in this case. 52 Fed. Reg. 42086, 10 CFR S 50.47(c)(lii) (emphasis added); ggg Staff Supp. Brief at 3; LILCO Supp. Brief at 3-4. These assertions are wrong; indeed, the Commission's language clearly precludes the interpretation urged by LILCO and the Staff.
With respect to the presumption, the Commission did not say that in particular case-by-case adjudications "it will" be pre-sumed, or "it shall" be presumed; rather, the Commission stated that "it may be presumed." Moreover, the Commission's use of permissive rather than mandatory language was clearly deliberate.
When the Commission wished to set forth mandatory requirements in the new rule, it did so; when it intended to set forth optional
" guidance," to be considered in case-by-case adjudications, it did just that.
Thus, in the three sentences immediately preceding the presumption provision, the Commission used mandatory language.
Specifically, the rule provides that:
A utility plan will be evaluated against the same standards applicable to a state or local plan . . . .
1 52 Fed. Reg. 42086, 10 CFR S 50.47(c)(iii) (emphasis added). The i I
I next sentence similarly sets forth a mandatory requirement:
In making its determination . . . the NRC will recognize the reality . . . that in an actual emergency, state and local government offi-cials will exercise their best efforts to protect the health and safety of the public.
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, Id. (emphasis added). And, in the next sentence, the Commission stated yet another mandatory provision:
The NRC will determine the adequacy of that expected response, . . . on a case-by-case basis . . . .
Id. (emphasis added). Then, in stark contrast, when providing the
" guidance" to be used "on a case-by-case" basis, the Commission stated that "it may be presumed" that governments would generally follow the utility plan. Id. (emphasis added).
The LILCO and Staff argument that the rule requires this Board to adopt the presumption in this proceeding, ignores the plain meaning of the words chosen by the Commission in the new rule. It is clear from the rule itself that the presumption is one which may be adopted, or not adopted, by a Licensing Board depending upon the facts and evidence presented in each case-by-case adjudication contemplated by the rule.1/ The Staff and LILCO arguments also ignore the well-established rule that a tribunal is I
to give effect to the plain meaning of words such as "will,"
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2/ This interpretation is consistent with, and confirmed by, the !
Commission's statements that the rule " leaves it to the Licensing l Board to judge what form the 'best efforts' of state and local officials would take . . ., " that the evaluation is to take place "on a case-by-case basic," and that "the rule does not presuppose, nor does it dictate, what the outcome of that case-by-case evaluation will be." 52 Fed. Reg. 42085. Egg also the statement of Chairman Zech, cuoted in Newsday, October 30, 1987, page 35 (with respect to the actions of state and local governments the new rule "doesn't assume they'll follow the plan if they say they won't") attached hereto.
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, "shall," and "may." Accordingly, this Board must reject the proposition that it is required by the new rule to adopt the presumption mentioned only as an option by the Commission.12/
l 1S/ The totality of the " reasoning" offered by the Staff on why the Commission's language requires this Board to adopt a presump-tion is as follows:
The Commission used the words "may be pre-sumed" and describes this provision in the Statement of Consideration using the terms "may presume." 52 Fed. Reg. 42082. However, the same Statement states that the rulemaking record supports the proposition that state and local governments will prefer a planned re-sponse over an ad hoc response, and instructs licensing boards that they "should not hesi-tate to reject any claim" that the governments would not act to safeguard their citizens in an emergency. Id. The effect of these pro-visions and rulemaking findings is to presume that the best effort response of state and local governments will be based on the utility plan unless it can be shown that those best efforts would be based on another acceptable radiological emergency plan which would in fact be implemented in an emergency. j l
Staff Supp. Brief at 3-4. In truth, this is not " reasoning" or l I
analysis at all. The Staff utterly fails to deal with the plain words of the rule, and provides no rational explanation for its conclusion that the rule means the opposite of what it says.
LILCO, however, does not even purport to provide any reasoning or analysis. Its entire discussion of the matter consists of a quotation of the rule's permissive presumption provision, followed by the bald assertion that "this presumption must guide the Board in deciding the remaining issues in this case." LILCO Supp. Brief at 3 (emphasis added).
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. 2. Based on the Facts and Evidence Presented in This Case,'the Non-Mandatory Presumption Cannot Be Adopted with Respect to the State of New York and Suffolk County The discussion above demonstrates that the new rule precludes this Board from adopting the interpretation urged by LILCO and the Staff (that the rule requires the Board to adopt the presumption in this case). Further, however, this Board's own findings, and the law of the case as set forth in the Board's September 17 and October 29 Orders, dictate that the presumption cannot be applied here. Egg Governments Supp. Brief at 7-8.
LILCO argues that the new rule requires a " change" in the Board's prior rulings. Egg LILCO Supp. Brief at 4. Yet, LILCO again offers no reasoning or analysis to support its argument.ll/
This LILCO argument is without basis and must be rejected. The Staff does not come out and say that this Board should reverse its prior rulings or rule contrary to the facts and evidence before it; but, the Staff's position concerning the impact of the presumption in this case is to the same effect. Egg Staff Supp.
Brief at 4-5. The Staff's conclusory remarks, devoid of analysis or reasoning, simply fail to addrass the dispositive fact already acknowledged by the Board: the evidentiary record in this adjudi-cation precludes this Board from adopting the presumption with respect to the State of New York and Suffolk County.
11/ The totality of LILCO's argument that two binding orders of this Board must be preemptorily reversed consists of a single sentence: "[the new rule) makes clear that the Board's earlier reliance on Intervenor statements that they would not use the LILCO plan must be changed." LILCO Supp. Brief at 4.
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1 (i) The Board Has Already Ruled that the Presumption Is Contrary to the Evidence in This Case As the Governments explained in their Supplemental Brief (at pages 6-8), this Board has already addressed the question of 1
whether, based on the facts and evidence before it, New York State 1
and Suffolk County would implement the LILCO Plan. It addressed that question in the context of the Ccmmission's direction, in CLI-86-13, that the Board should assume some sort of "best effort" governmental response to a Shoreham emergency, using the LILCO Plan "as the best source for emergency planning information and options." Based on uncontroverted sworn statements of the actual responsible State and County officials, however, the Board found that it could nqt assume, as LILCO had argued, that in a Shoreham I l emergency, the Governments of New York State and Suffolk County i would act in partnership with LILCO or would follow or implement the LILCO Plan.12/ This Board ruled correctly that the Govern-ments' statements could not be ignored:
No one has more' knowledge than the State and County on how they would respond to an emer-gency at Shoreham. By affidavit they dispute each claim LILCO makes as to how they would react. l
/ Egg September 17 Order at 25-27 ("the scenario (LILCO) presents as to what form Interveners' response would be . . . is unsupported by CLI-86-13, or otherwise in this record"; LILCO's argument "is based on the supposition of what the Applicant expects the State and County would do . . . . "; "the response theorized is without factual basis").
,- September 17 Order at 26. The Board confirmed its ruling in rejecting LILCO's reconsideration motion:
[W]e took into account the evidentiary record l in which the Governments stated that they would not implement the LILCO plan, would not ,
respond to a Shoreham emergency in concert or in partnership with LILCO, would not rely upon LILCO recommendations or advice, and would not authorize LILCO to perform the functions in Contentions 1-10. Considering the best effort assumptions and the foregoing led the Board to the conclusion that it remained an ooen cues-tion as to how the Governments would respond in an emercency . . . .
October 29 Order at 14 (emphasis added).
In light of its previous rulings based on the evidentiary record before it in this case, this Board cannot now adopt the kind of presumption advocated by LILCO and the Staff: it would directly contradict the evidence in the record of this case and the Board's prior rulings made on the basis of that evidentiary record.13/ Further, as demonstrated below, there is nothing in j 13/ Moreover, the task and governing directions before this l Board, both in addressing LILCO's last summary disposition motion pursuant to CLI-86-13, and in determining the scope of this CLI-86-13 remand proceeding in light of the new rule, are substanti-ally the same. Accordingly, the Board's earlier rulings remain fully applicable and appropriate. Thus, as noted in the Govern-ments' Supplemental Brief, the Commission's assumption of a "best efforts" government response in CLI-86-13 is unchanged by the new rule, which requires the NRC to " recognize" that in an emergency
" government officials will exercise their best efforts to protect the health and safety of the public." And, the optional presump-tion in the new rule -- that state and local government officials "would cenerally follow the utility plan" -- is substantially the !
same as the CLI-86-13 suggestion tnat officials would use the {
utility plan as "the best source of emergency planning options and information." This Board already rejected the argument that from that general assumption, it could conclude that the State and (footnote continued)
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. the rule itself that could possibly justify a Board ruling now that would ignore the evidence that the Board found compelling on September 17 and October 29.
(ii) There Is No Basis to Argue that the Board's Prior Rulinas Should be Chanced There is no basis for LILCO's suggestion that the new rule somehow nullifies this Board's prior rulings in the September 17 and October 29 Orders, or that it requires them to be changed.
Egg LILCO Supp. Brief at 4. First, the new rule did not vacate CLI-86-l? indeed, in effect, it purports to codify that decision.
Egg, e.g., 52 Fed. Reg. 42082 (rule " adheres to" CLI-86-13); 42084 (rule " incorporates," and in some respects " amplifies" and
" clarifies" CLI-86-13). Thus, the new rule itself provides no basis for asserting that CLI-86-13, or decisions made pursuant to its case-specific directions, are no longer valid or binding.
Second, LILCO offers no basis for its algument that this Board's September 17 and October 29 Orders, made pursuant to CLI-86-13 and based upon the evidentiary record in this case, "must be (footnote continued from previous page)
County would follow or implement the LILCO Plan. The Governments' uncontradicted evidence to the contrary required such rejection.
Finally, the Board's assigned task, under CLI-86-13 and under the new rule, is the same: to determine what form the "best efforts" response would take, and whether such response would be adequate under the reasonable assurance standard. Egg, e.c., 52 Fed. Reg. 42084 (the rule " incorporates" CLI-86-13, including that the NRC is "to take into account the probable response of state and local l authorities, to be determined on a case-by-case basis"); 42085 I
(" rule leaves it to the Licensing Board to judge whet form the
'best efforts' of state and local officials would take"); 42086
.($ 50.47(c)(1)(iii)); September 17 Order at 26; October 29 Order at 14.
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. changed." They are the binding law of the case in this pro-ceeding. There is no hint in the new rule that the Commission intended the rule to alter evidentiary rulings that already had been made in case-by-case adjudications; obviously, no rule could have such an effect. Indeed, the Commission expressly stated that the rule did not assure a license for Shoreham and that a record based upon a Shoreham-specific adjudication would need to be developed. Egg 52 Fed. Reg. 42081. Thus, the Commission did nothing to alter this Board's conclusion that it remains "an open question as to how the Governments would respond in an emergency."
October 29 Order at 14.
Third, the Commission's discussion reiterates again and again that decisions under the new rule are to be made in case-by-case adjudications, based on the facts and evidentiary records developed in each individual adjudication.14/ The rulings made by this Board in its September 17 and October 29 Orders, and the bases of those rulings, are fully consistent with the new rule.
They were based upon the facts and the evidentiary record in this adjudication, and were made pursuant to the Commission's decision purportedly incorporated into the new rule. LILCO's suggestion 14/ Sag, e.o., 52 Fed. Reg. 42081 ("whether a utility could succeed in making (the] showing (required by the new rule) would deoend on the record developed in a specific adjudication . . . ");
42082 (under the new rule judgments and evaluations, and uncer-tainties therein, are to be " addressed in the case-by-case adiudi-cations on individual fact-soecific situations"); 42083 ("under the carticular facts of an individual case it may be impossible for the NRC to conclude that a utility plan is adequate, as defined in this rule"); 42084 (under new rule, NRC will "take into account the probable response of state and local authorities, 12 be determined on a case-by-case basis") (all emphasis added).
7 l
j that the Commission intended an abrupt reversal of this Board's rulings is without basis,.and ic direct conflict with the Commission's own language in t'ae rule.
Fourth, the Commission's comment that Licensing Boards i
"should not hesitate to reject any claim that state ond local officials will refuse to act to safeguard the health and safety of the public in the event of an actual emergency," although cited by the Staff (Staff Supp. Brief at 3-4, citina 52 Fed. Reg. 42082),
has no relevance to this case. Neither Governor Cuomo, the Suffolk County Executive, nor any other government official from the State of New York or Suffolk County has stated, in this pro- ,
ceeding or elsewhere, that they would " refuse to act to safeguard the health and safety of the public" in the event that Shoreham were licensed and there were an accident at the plant. Indeed, this Board has stated "the State and County Governments do not deny that they would respond to an emergency with their best ef-forts . . . .
September 17 Order at 45. Thus, the Commission's guidance on what a Licensing Board should or should not do if presented with a claim that officials would " refuse to act to J t
safeguard the public," is inapposite here.
Finally, this Board must ignore LILCO's allegation that the Governments will utilize the LILCO Plan because they have I
allegedly stated in the past that a planned response is better than an ad hqq one. Egg LILCO Supp. Brief at 6-9. LILCO has l i
severely distorted the record in a series of selective quotations
-- quotations which ignore the uncontradicted, sworn statements of
. the Governments' officials that they would n21 follow or-implement the LILCO Plan. LILCO's extravagant rhetoric notwithstanding, there is still no basis for this Board to alter its September 17 and October 29' Orders, which found that facts are in dispute as to the nature of a governmental response to a Shoreham emergency.
The Board clearly was correct in ruling that it could not assume away such material disputed issues.ll/
- 3. Even Assuming, Arauendo, that the Presumption Could Be Adopted in This Proceeding, It Has Alreadv Been Rebutted The discussion above demonstrates that in light of the evi-dence in this case and the Board's rulings concerning its impact, there is no basis for adoption of any sort of presumption that the Governments would follow LILCO's Plan. However, even assuming for the sake of argument that the new rule's rebuttable presumption could in theory be applied in this proceeding, the presumption would have no practical consequence: any such presumption has already been rebutted in this adjudication by the sworn statements of Governor Cuomo and the Suffolk County Executive, and the other evidence in the record. Thus, under CLI-86-13 and the new rule, i
l l
1 i
11/ The Governments will not respond in this Reply to the j substance of LILCO's misleading allegations that the Governments j believe in planned responses versus ad h22 ones and that such j
" belief" allegedly means that the LILCO Plan would be used by the j Governments. Rather, consistent with the Board's November 23 1 Memorandum and Order, the Governments will respond to such arguments if they ever are proffered in a proper substantive !
filing. j l
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i" this Board st 11 must determine, based on the evidence to be presented, the nature and adequacy under the regulations of a best l efforts State and County response to a Shoreham emergency.
A rebuttable " presumption" that such a best efforts govern-ment response would be to implement the LILCO Plan has long since been overcome in this case. As we discuss further in Section III below, the burden of going forward with proof concerning the na-ture and adequacy of an ad hoc governmental response in this case now rests squarely upon LILCO, with no " presumptions" available to i
use as shortcuts in satisfying that burden, or to argue that the i burden has shifted to the Governments, i
Specifically, as noted, this Board has already held as i follows:
Interveners have established by sufficiently convincing direct evidence, i.e., the affi-davits of State and County officials, that the material facts Applicant claimed to be without dispute (i.e., that the Governments would act in partnership with LILCO, would follow LILCO's advice and recommendations, and would implement the LILCO Plan or authorize LILCO to implement it) are in fact disputed and there exists a genuine issue to be heard. i September 17 Order at 27. Egg also the October 29 Order, in which the Board reiterated its holding:
i The Board considered (Cuomo v. LILCO) along with how LILCO said it expected Interveners will operate in an emergency. Further, we took into account the evidentiary record in l which the Governments stated that they would j not implement the LILCO plan, would not re-spond to a Shoreham emergency in concert or in partnership with LILCO, would not rely upon l
l
l l - .*
(- .. LILCO recommendations or advice, and would not L* authorize LILCO to perform the functions in Contentions 1-10. Considering the best ef-forts assumption and the foregoing led the l Board to the conclusion that it remained an j l open question as to how the Governments would respond in an emergency and whether their re-sponse will be adequate in fulfilling regula- i tory requirements. l 1'
October 29 Order at 13-14. In light of these prior binding rulings on the evidence'in this case, even if it were assumed that the new rule presumption could, theoretically, be applied in this case, it has already been rebutted. Nothing in the rule alters these factual findings that are the law of this case.
E. The Presumption in the New Rule Can Be Rebutted by Showings Different From the One Provided as an Example in that Rule LILCO and the Staff argue that under the new rule the presumption, if adopted, can gnkg be rebutted by a showing that the Governments' best efforts response "would be based on another acceptable radiological emergency plan which would in fact be implemented in an emergency." Staff Supp. Brief at 4.15/ This is l
another instance of LILCO and the Staff urging this Board to ]
ignore the plain meaning of the rule. Their argument has no basis and must be rejected.
I 11/ Sgg also LILCO Supp. Brief at 13, n.7 ("the new rule calls for rebuttal, if at all, by a governhtental plan 'that would in fact be relied upon in a radiological emergency.'") (emphasis added).
l~ ;
J
. First, this argument again ignores the plain words of the l
Commission in the rule itself. The Commission makes very clear j that a proffer of an adequate state or local radiological emergency plan is merely one way that the presumption can be rebutted (assuming it were appropriate for a Board to have applied the presumption in the first place). The rule provides:
[T]his presumption may be rebutted by, fgI_
examola, a good faith and timely proffer of an adequate and feasible state and/or local radiological emergency plan that would in fact be relied upon in a radiological emergency.
52 Fed. Reg. 42086 (emphasis added). There is no indication in !
the rule or elsewhere that the one mentioned " example," explicitly '
identified as such, was intended to be the oniv available method of rebutting the presumption. Neither LILCO nor the Staff cites any authority for the assertion that the example provided in the Commission's guidance was intended to be the exclusive method of rebutting the presumption.l.1/ Indeed, their argument would render the words chosen by the Commission meaningless, a construction of the rule which could not be adopted by this Board.
Second, any such limitation on how the presumption could be !
rebutted would also be contrary to the clear intent of the new rule as a whole -- that is, that decisions under the rule are to be based on the fact-specific evidence presented in individual case-by-case adjudications. There is no basis to infer that the 17_/ In fact, once again, neither the Staff nor LILCO provides any l reasoning or analysis to support their conclusory assertions on l this matter. f 1
1
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _A
. Commission believed it could (or did) identify in its general
" guidance" one very specific type of evidence which would be I universally applicable in all adjudications. It is equally base-less to infer that the Commission intended to limit the opportuni-ties for rebutting a " rebuttable presumption" to only those situations where that very specific type of evidence was perfectly duplicated.ll/
F. Even Assuming, Arauendo, that the Governments Needed to Rebut the Presumption a Second Time, They Are Entitled To Do So LILCO argues throughout its Supplemental Brief that it is "too late" for the Governments to attempt to rebut the optional presumption in the new rule. Egg, e.a., LILCC Supp. Brief at 13, 23-37. Insofar as this argument relates to LILCO's argument about the burden of proof in this proceeding, we address it in Section III below. We will address the argument in its substantive particulars in response to LILCO's summary disposition motion, if and when one is filed. Two general comments are in order here, however.
First, it is utterly preposterous to suggest that as of November 17, 1987, the Governments could already have been barred from attempting to rebut a rebuttable presumption which will not ll/ Indeed, the notion that a rebuttable presumption can be re-butted only by the presentation of one very specific and limited type of evidence would in effect render the presumption irrebuttable in almost every case. Thus, the interpretation urged by LILCO and the Staff is inconsistent with the rule for the 1 additional reason that it in essence makes the Commission's
" rebuttable" presumption an irrebuttable one.
\
l
. even exist as part of the NRC's regulations until December 3, 1987
-- the effective date of the new rule. Yet, that is the thrust of LILCO's argument. It must be rejected out of hand. It is nothing but ar.other attempt by LILCO to have this Board commit serious error.
Second, it is clear that any future evidentiary proffer by the Governments -- assuming for the sake of argument that one could be required given the already existing evidentiary record concerning the nature of the Governments' "best effort" response to a Shoreham accident -- must be considered by this Board'in the case-by-case adjudication required under the new rule. Such an evidentiary proffer cannot be preemptorily rejected, before it is e7en made, in response to self-serving and conclusory opinions, Deliefs, and allegations by LILCO.
III. LILCO BEARS THE BURDEN OF GOING FORWARD AND THE BURDEN
.OP PROOP IN THE CLI-86-13 REM 7ED PROCEEDING LILCO asserts that the Governments bear the burden of going forward in the CLI-86-13 remand proceeding on Contentions 1-10.
Egg LILCO Supp. Brief at 4-6. LILCO's argument has no basis in fact or law, and must be rejected. The Staff does not suggest that any change in the normal procedures or allocation of burdens would be appropriate or desirable.
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l f
. 'A. Over. view of the Relevant Lecal Princioles 1
)
At the outset, it is important to clear up a serious mis-apprehension which may have been created by L1LCO's discussion of ;
i NRC precedent concerning an intervenor's burden of going forward.
In general,'the cases LILCO cites.and the principles they stand for have no relevance in this proceeding-, given its present pos-ture.(issues not yet defined), and its subject (LILCO's affirma-tive defense and LILCO's attempt to satisfy Section 50.47(c)(1) to obtain a license).
First,.the cases cited by LILCO all involve failures by an intervenor to provide any basis for already accepted contentions' ;
durino the discovery or hearina chases of a proceeding on those contentions. None of them suggests that an intervenor bears any burden of going forward at the preliminary stage in which this proceeding is currently poised. All parties, including LILCO, acknowledged in their October 30 filings that in this proceeding, which has not yet even begun, there is a need for: (1) a definition of the issues raised by LILCO's realism defense, in addition to those raised by the already admitted Contentions 1-10; and, (2) discovery concerning the parties' respective positions i and evidence on those issues. Thus, this new proceeding has far to go before it reaches a stage analogous to that in which NRC precedent applies any burden of going forward upon an intervenor.
j i
. Second, the cases cited by LILCO, in which interveners'have been'found to have failed to carry the burden of going forward with some basis for their contentions, have all involved repeated refusals to respond either to discovery requests, or to Board orders or requests for the submission of evidence or proposed findings of fact, or similar refusals to follow NRC procedure.
Egg, e,q,, Vermont Yankee Nuclear Power Coro, v. Natural Resources Defense Council, 435 U.S. 519, 532, 534, 554 (1978) (intervenor did not appear at, or participate in hearings on its contentions, and submitted no evidence and no findings of fact); Public Service Co. of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-471, 7 NRC 477 (1983) (intervenor refused to provide discovery responses after being given seven months to do so); Pennsylvania Power & Licht Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317 (1980) (intervenor refused to answer interrogatories after over six months of time extensions to do so). Clearly, no such allegations could be made, much less supported, with respect to the CLI-86-13 remand, given the current stage of this proceeding.
Third, it must be emphasized that even LILCO acknowledges that, at the appropriate stage of a proceeding on their conten-tions, the burden of going forward placed upon interveners is the l
very minimal threshold of presenting evidence " sufficient to I require reasonable minds to inquire further . . . " as to the interveners' contentions. Egg LILCO Supp. Brief at 5, citina Suscuehanna, 12 NRC 317, 340. Significantly, however, LILCO l
h -
. cannot and does not dispute that the ultimate burden of proof on the question of whether a license can or should be issued remains on it, as the license applicant. See LILCO Supp. Brief at 4-5.11/
Finally, LILCO never addresses in its brief the allocation of burdens in the type of situation presented here: a proceeding on an affirmative defense raised by the license applicant, pursuant to an order directing that there be a hearing on the issues raised by that defense. As de demonstrate below, given the basis, na-ture, and posture of this proceeding, the burden of going forward and the burden of proof both rest squarely upon LILCO.
B. The Governments Have More than Satisfied Their Burden of Going Forward on Contentions 1-10 by Prevailing on the Leoal Authority Issues Raised by Them In light of the facts and history of this case, LILCO's sug- ,
gestion that the Governments have not met their burden of going !
l forward with respect to Contentions 1-10 is ridiculous. A brief I i
review of some pertinent history makes that clear. )
i In February 1985, the Governments obtained a decision from )
l the New York State Supreme Court on the legal authority issues l presented in Contentions 1-10. See cuomo v. LILCO, consol. Index l
No. 84-4615 (N.Y. Sup. Ct. Feb. 20, 1985), aff'd, 511 N.Y.S.2d 867 l 11/ As noted in the discussion of LILCO's interpretation of the new rule, however, and as evidenced by LILCO's announcement that it intends to file yet another summary disposition motion on Contentions 1-10, LILCO has in essence argued that it needs to prove nothing in order to satisfy the Commission's regulations and obtain a full power operating license. For the reasons already stated, these LILCO arguments are wrong. We will address them if and when they are presented in a summary disposition motion.
., i
. L(App. Div. 1987), aooeal'oendina. That decision held that LILCO j has no authority to implement the various portions of its Plan enumerated in Contentions 1-10, precisely as ' alleged in those contentions. The Governments then submitted that evidence'to the-Licensing Board in support of Contentions 1-10 and in opposition to LILCO's Renewed Summary Disposition Motion, dated February 27,
-1985. l Before the Licensing Board, LILCO's only response to the dispositive legal authority evidence presented by the Governments
~
on Contentions 1-10 was to assert its' preemption, " realism," and
" immateriality"' defenses. Both the Licensing Board and the Appeal Board rejected those defenses and ruled that the Governments had prevailed on Contentions 1-10,--requiring that LILCO's request for an operating license be denied. Lona Island Lichtina Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644,
'895-919 (1985) ("PID"), aff'd, ALAB-818, 22 NRC 651 (1985). The Commission's decision in CLI-86-13, and this remand proceeding, followed.
LILCO conveniently ignores all the prior history concerning Contentions 1-10 in making its burden of going forward argument.
Clearly, however, the Governments' submission of dispositive evidence on the legal authority' issues raised in Contentions 1-10 more than satisfied the Governments' burden of going forward on those contentions.
i
=.,,-
The CLI-86-13 Re' mand Proceeding Is Focused on LILCO's C.
" Realism" Affirmative Defense to Contentions 1-10 In CLI-86-13, the Commission could not, and did not, disturb the prior rulings as to LILCO's lack of legal authority _to imple-ment its Plan as alleged in Contentions 1-10. Thus, the Commis-sion stated that it " assume [d] that LILCO is prohibited from
. performing the State or County roles" in the response categories identified in Contentions 1-10. Lono Island Lichtino Co.
(Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22, 30-31 (1986). The Commission proceeded, however, to discuss-LILCO's asserted " realism" and " immateriality" defenses to Contentions 1-10, and it " remand (ed] LILCO's realism arcument to the Licensino Board for further oroceedinas consistent with [its)
. 1 Decision." Id. at 32 (emphasis added). Sag also id. at 24 (Commission " remand (ed] for further evidentiary hearings on issues raised by LILCO's so-called ' realism' and ' materiality' arou-ments") (emphasis added).22/
It is-thus beyond dispute that the intended subject of the CLI-86-13 remand is LILCO's asserted affirmative defense to q Contentions 1-10 -- its " realism" argument. Indeed, this Board has so stated:
No one assumes at this stage of the proceeding that LILCO is not prohibited from performing the '
State and County roles as enumerated in the
, 20/ In CLI-86-13, the Commission did not address LILCO's preemp-tion argument, which had been rejected by both the Licensing and j Appeal Boards. Egg CLI-86-13, 24 HRC at 24. Egg also PID, 21 NRC )
at 900-909; ALAB-818, 22 NRC at 661-73.
4
l
. contentions. Egg, CLI-86-13, suora, 24 NRC at
- 30. - The matter for decision is whether the realism arcument overcomes the LILCO disability.
- j. September 17 Order at 27-28, n.15 (emphasis added).21/
D. The Burden of Going Forward, and the Burden of Proof, on its Realism Affirmative Defense Rests on LILCO There is no basis in law or logic to suggest that anyone other than LILCO has the burden of going forward, as well as the burden of proof, in this remand proceeding. LILCO is the propon-ent of the realism affirmative defense; and, LILCO seeks a license based upon its belief that it can make the demonstrations required of an applicant under 10 CFR S 50.47(c)(1). Under well- .
established principles and the regulations, the burdens in this j I
proceeding on an affirmative defense asserted by LILCO rest upon LILCO.
First, it cannot be disputed that LILCO's realism argument is an affirmative defense to Contentions 1-10. In fact, the Commis-sion has ruled that the contentions are correct in their allega-tions. LILCO asserts, however, that its realism argument l
l i
21/ Egg also September 17 Order at 10 (LILCO has " defended (
acainst the legal authority issues on the basis of its realism i argument") and 11 (in CLI-86-13, the Commission " remanded for further evidentiary hearings issues raised by LILCO's realism arcument") (emphasis added).
1
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. overcomes its conceded lack of legal authority. This.LILCO position clearly fits the traditional definition of an affirmative ,
-defense.22/
Second, it.is well-established that the burden of going i
i forward, as well as the burden of proof, rests upon the party who asserts an affirmative defense. See, e,c., Jones v. Taber, 648 F.2d 1201, 1203 (9th Cir. 1981) ("of course, the burden is always ;
1 on the party advancinj an affirmative defense to establish its {
validity"); Martin v. Weaver, 666 F.2d 1013, 1019 (6th Cir.),
cert. denied, 456 U.S. 962 (1981) (burden of proving an affirma-tiva defense is on the party asserting it). Accord, In re Kerr-McGee Chemical Coro. (Kress Creek Decontamination), 23 NRC 799, 804, n.17 (1986) (proponent of affirmative defense bears burden of going forward and presenting evidence).
Finally, in this remand proceeding LILCO bears the burden of proof under 10 CFR S 2.732 ("Unless otherwise ordered by the I
presiding officer, the applicant or the proponent of an order has the burden of proof"). Not only is LILCO the proponent of the 1
defense which forms the hssis for this remand proceeding, it is the license applicant. LILCO has stated no basis on which this i 12/~ [ affirmative defense is one which admits the truth of the complaint's allegations, but states new matters that, it is argued, exculpate the defendant, or allow him to avoid liability.
Egg, e,c., Fed.R.Civ.P., Rule 8(c); U.S. Home Coro. v. Georce W.
l Kennedy Const, Co., 610 F. Supp. 759, 761 (D.C. Ill. 1983).
l l
,-. Board could order that the burden of going forward, or the burden of proof, on LILCO's realism defense to Contentions 1-10 should or could be shifted to the Governments.23/
E. The New Rule Does Not Support or Justify Any Change in Burden Allocation in This Case The new rule reiterates that when proceeding under Section 50.47(c)(1), the burden of going forward, as well as the burden of proof, rests solely on the applicant. The new rule thus provides:
ITlhe acclicant will have an occortunity to demonstrate to the satisfaction of the Commission that deficiencies in the plans are not significant . . . .
Where an applicant . . . asserts that its in-ability to demonstrate compliance with the requirements of paragraph (b) . . . results wholly or substantially from the decision of state and/or local governments not to partici-pate further in emergency planning, an oper-ating license may be issued if the acolicant demonstratgg to the Commission's satisfaction To make (the reasonable' assurance] finding, the acolicant must demonstrate that, as out-lined below, adequate protective n".easures can and will be taken . . . . ,
)
23/ Contrary to LILCO's suggestion, there is no basis for shifting any burdens simply because the matter at issue -- here, its realism defense -- involves the nature or adequacy of the Governments' best efforts response. Indeed, precisely the oppo-site is the case. Thus, in Consumers Power Company (Big Rock Point Plant), 16 NRC 1096 (1982), it was held that the applicant had the burden of proving the adequacy of the radiological training program for local government and school officials, even thouch such trainino was to be conducted by state acencies, and was not the responsibility of the aoolicant.
l .--- __________o
. 52 Fed. Reg. 42086 (emphasis added). Accordingly, the actual words of the rule further underscore the requirement that it is LILCO's burden -- and LILCO's alpne -- to demonstrate in this proceeding that it complies with the regulations.
Furthermore, even if it were assumed, arcuendo, that some burden of going forward could properly be imposed upon the Govern-ments in this proceeding -- despite the facts that (1) the CLI-86-13 remand is directed solely to an affirmative defense propounded by LILCO, and (2) the new rule reiterates that the burden of going forward under Section 50.47(c)(1) is on the applicant -- the Governments have already met whatever threshold burden of going forward could be imagined on the question of the nature of the Government's "best efforts" response. The Govern-ments' submission of sworn statements by the Governor of New York and the Suffolk County Executive clearly is " sufficient to require reasonable minds to inquire further" concerning the nature and adequacy of a "best efforts" response by New York State and Suffolk County. Indeed, this Board has already held precisely that in denying LILr)'s Second Renewed Summary Disposition Motion on Contentions 1 .0. Thus, it cannot seriously be argued that the Governments ha' e f ailed to "go forward" concerning the nature of the assumed oest efforts" response. The burden now rests square-ly upon L'1CO to go forward, and to prove that it has satisfied the regatrements for licensing set forth in the regulations.
I i
l 1 I
. For all the reasons already discussed at length above, the presumption provision in the new rule does not change the allocation of burdens just described. Specifically, in light of the facts and evidence in this case, the presumption cannot be adopted. Thus, the burden of going forward to establish its real-ism defense in this CLI-86-13 remand, and the burden of proof con-cerning satisfaction of the requirements in Section 50.47(c)(1),
remain squarely upon LILCO, the license applicant.
Finally, even if it were assumed, arcuendo, that the presumption could be adopted in this proceeding, the Governments j have rebutted it, as provided for in the new rule itself. Thus, even under the rule interpretation urged by LILCO and the Staff, the presumption has been overcome, and the burden of going forward on its realism defense, and the burden of proof under Section 50.47(c)(1), still rests upon LILCO as the license applicant.
IV. REPLY TO VIEWS ON THE SCOPE OF THE CLI-86-13 REMAND PROCEEDING l
In this Section, we address the views of LILCO and the Staff regarding the scope of the CLI-86-13 remand proceeding, particu-larly as set forth in those parties' October 30 filings. Consis-tent with the Board's November 23 Order, we do not deal here with ;
1 the substantive issues and arguments raised primarily by LILCO in 4 its Supplemental Brief and elsewhere. In addition, in light of ;
1 L
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. -the views of LILCO and the Staff, and the preceding discussion
! about the effect of the new ruls, we identify in Section IV.D many I of the issues which will need to be addressed in this proceeding.
A. Introduction a l
At the outset, it must be stressed that the LILCO and Staff filings of October 30 stand orderly procedure on its head.
Notwithstanding the Board's 48 pages of discussion in the September 17 Order, the Staff and LILCO proceeded on October 30 to ignore the Board's substantive holdings. LILCO paid lip service to the Board's Order, but then ignored its substance. The Staff, for all practical _ purposes, ignored the September 17 Order altogether. As a result, neither the LILCO nor Staff briefs of October 30 serve to focus this proceeding in any meaningful manner.
In its September 17 Order, the Board ruled that there are numerous issues concerning the nature and adequacy of a govern-mental "best efforts" response to a Shoreham emergency that must be resolved in deciding the issues raised by LILCO's realism defense to Contentions 1-10 and by the Commission's decision in CLI-86-13. The Board recognized that these issues cannot be j resolved merely by applying a "best efforts" assumption or by cataloguing abstract governmental " capabilities." Rather, the Board held that the remanded hearings would of necessity include determinations of "how the Governments will respond and whether that response will fulfill regulatory requirements," particularly l
l
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. since the Commission itself, in CLI-86-13, "had questions directed at how effective the response of the State and County would be and what those results would be insofar as meeting emergency planning j l
requirements." September 17 Order at 23, 22. In other words, the j I
Board has held that the remand of LILCO's affirmative defense i l
would, at least in part, focus on identifying the nature of an j 1
ad h2g, "best efforts" government response to a radiological )
emergency at Shoreham, and whether such a response would be 1
adequate to protect the public.
As explained above and in our Supplemental Brief, the scope i
and focus of the remand proceeding and the inquiry to be made by )
this Board were essentially unchanged by the adoption of the new i rule, except to the following extent. The issues and questions l
I raised by the already-admitted Contentions 1-10, as augmented by i l
CLI-86-13 and LILCO's realism defense and the Board's Orders of September 17 and October 29, will need to be supplemented to reflect issues specifically raised by the new rule, such as LILCO's proposals for satisfying the new requirements specified in i
subparts (1) and (ii) of the rule. We discuss this further in I Section IV.D below. But, as to the issues presented by the existing contentions, LILCO's realism defense thereto, and CLI-86-13, the new rule has essentially no impact.
Two additional introductory comments are in order. First, as already noted, CLI-86-13 remains the binding law of the case in this proceeding. Thus, the specific Shoreham- and LILCO Plan-I
( related questions and issues identified by the Commission as l
t L :.
. requiring evidence, hearing, and decision, and the Commission's direction to the Board concerning the remand thereon, remain valid I and binding on this Board.
Specifically, the Commission ordered this Board to examine l
and make factual findings on the following issues, at a minimum, in determining what a "best efforts" State and County response to a Shoreham emergency would be and whether it would be adequate:
The familiarity of pertinent State and County officials with the LILCO Plan How much delay would be involved in alerting the public, given a "best efforts" government respense How much delay would be involved in making decisions on protective actions How.much delay would be involved in making recommenda-tions to the public on protective actions How much delay would be involved in making decisions on recovery and reentry How much delay would be involved in making recommenda-tions to the public on recovery and reentry How much delay would be involved in achieving effective access controls What is the significance of the delay in evacuation which would result from a lack of traffic control Would evacuation be a viable protective action i
Would any other protective actions be foreclosed j Are there other shortcomings in the LILCO Plan, assuming a "best efforts" State and County response using the LILCO plan as a source of basic emergency planning information and options 3
l
- . CLI-86-13, 24 NRC.at"31-32. These questions and issues -- as well
.as'the related issues' raised.by this Board in its September 17
-Order -- are not eliminated'by the.new rule; nor does that rule-vacate the Commission's directive that' evidence be obtained and reviewed to_make factual findings to resolve them. Nonetheless, LILCO and-the Staff essentially ignore the existence of these Commission-mandated issues in their views on the scope of the remand proceeding. LILCO and the Staff are clearly wrong in suggesting that these issues need not be decided.
Second, contrary to the implication in the.LILCO and Staff comments, it is clear that the questions and issues raised by this Board in its September 17 Order were not an all-inclusive listing of every specific issue'to be discussed in the remand proceeding.
Rather, they were provided as examples of how the general questions, involving the nature of a governmental best efforts response and its adequacy under the regulations, must be applied to-the more specific matters raised in Contentions 1-10, in order to. reach the decisions _ required by CLI-86-13 and the regulations in ruling on LILCO's realism defense. The fact that the Board's-questions were not intended to be all-inclusive is evidenced not only by the September 17 Order itself, but also by the Board's requests, both before and after the adoption of the new rule, for the parties' views on the matters to be heard and the questions to be answered at the remanded hearings. Egg Board's Orders of October 8, 30 and November 9, 1987.
1
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(:
L I; Before we. discuss and, to the extent possible, identify the issues and questions which must be heard and decided by this
! Board, we first comment upon certain of the specific views offered by LILCO and the Staff on that subject. Those views depart dramatically from the rulings of the Commission and this Board and, as will be demonstrated below, are without merit.
B. LILCO's Views Ignore This Board's Prior Rulings and CLI-86-13 In its October 30 Views (at page 3), LILCO asserts that the issues.to be heard by this Board "must be shaped" by two "estab-lished facts":, first, that'LILCO has provided the physical re-sources to perform all functions at issue under Contentions 1-10, without the help of the State or County, and with only the absence of legal authority and the lack of participation by the State and County preventing the LILCO Plan from being fully adequate, and, second, that the State and County would use their "best efforts" in a real emergency. LILCO then asserts that, from thesa LILCO
" facts," it must be concluded that there is only one " fundamental issue" before the Board in the remand proceedin7:
With respect to the . . . functions at issue (in Contentions 1-10), would New York State and Suffolk County, using their best efforts, act in an emergency so as to lessen significantly the health and safety of the public as compared to the LILCO Plan?
I
l
. LILC( ct. 30 Views at 3. These same assertions are essentially repeated by LILCO in its Supplemental Brief. Eeg, e.o., LILCO l Supp. Brief at 10-13 (Interveners have burden of proving "specif-ically what would the response by Interveners in an emergency do to decrease the effectiveness of the LILCO Plan," and " precisely how much harm would this cause to the public health and safety?").
To a large extent, LILCO's assertions go to substantive argu-ments to which this Board has indicated that no response need presently be made. However, even a cursory review reveals that LILCO's assertions cannot withstand scrutiny. Its first so-called
" established fact" has already been flatly rejected by this Board, and LILCO's so-called " fundamental issue" conflicts with CLI 13, the Board's September 17 and October 29 Orders, and the new rule. Thus, for example, in its September 17 Order (at page 24),
the Board held as follows:
LILCO argues that considering that the LILCO plan, if allowed to operate without the (Governments, complies with NRC requirements and that the presumptions in CLI-86-13 provide that the State and County would use their best efforts, the (Governments cannot oppose (LILCO's motion for summary disposition on the legal authority contentions) without showing how they themselves, doing their best, would spoil an adequate plan and harm the public.
Applicant contends that the (Governments cannot do this considering the extent of their resources. ,
1 This position of Apolicant's is flawed in a number of resoects.
)
_ _ _ _ - _ _ _ _ _ _ _ _ _a
11
. (Emphasis added). Thus, the first so-called " established" LILCO fact is wrong.23/
Similarly, this Board has already identified the fundamental issues to be heard, consistent with the direction in CLI-86-13:
that is, what would be the nature of a "best efforts" governmental response to a Shoreham emergency, and would such a response be
. adequate to protect the public. As discussed above, the need to resolve these issues is wholly consistent with the new rule.
2ndeed, LILCO itself concedes that the " basic question" raised by the Board in its September 17 Order was "how the Governments will respond and whether that response will fulfill regulatory require-ments." LILCO Supp. Brief at 22 (cuotina September 17 Order at 23). Thus, LILCO's so-called " fundamental issue" is also simply wrong.
LILCO's repeated assertion of already-rejected arguments about " established facts" and " fundamental issues" constitutes an affront to this Board and an abuse of process. Neither the Board nor the parties should have to expend time or resources dealing over and over again with the same issues that have been resolved against LILCO. Accordingly, LILCO's arguments, once again, must be firmly and finally rejected if this proceeding is ever to advance into any productive stage.
21/ It should also be emphasized that, contrary to LILCO's suggestion, the LILCO Plan does not " provide any health and safety to the public." That Plan cannot be implemented by LILCO; it is nothing but volumes of paper, providing no protection at all.
LILCO's " established fact" is an illusion.
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.. .A brief comment is also required regarding the four "proposi-tions" concocted by LILCO and listed in its October 30 Views as being "left in issue."22/ Those " propositions" are premised upon LILCO's invented (and already rejected) " established facts" and ,
" fundamental issues"; they are notuing but the product of a vivid 2}/ LILCO asserts as follows: i It'is already established that the State and i Countywouldusebestypfortsandwouldmain-in an emergency. ]
tain contact with LERO_ ;
What are left in issue are, for each of the !
nine functions, the following propositions:
County in a timely fashion.
- 2. State and County personnel, taking into account information from LERO, LILCO, the NRC, FEMA, t.nd DOE, could make timely decisions about the public health and safety.
- 3. The State and County would not refuse to do something specified in the LILCO plan if refusing to do it would harm the pub-lic health and safety.
- 4. If any of the nine functions were ne- )
cessary to protect the public health and safety, the State or County would either perform the function with their own qualified personnel or authorize LERO to perform it.
If the evidence shows that one or more of these propositions is false, then LILCO may not be able to meet the Commission's require-ments, as interpreted prior to the new rule promulgated yesterday.
LILCO Oct. 30 Views at 2-3. LILCO's footnote 1 reads:
" Number 46 of the Statement of Facts attached to LILCO's motion for summary disposition says (footnote continued)
l
. LILCO imagination. They bear no resemblance to any rulings by the Commission or this Board concerning the issues and questions raised by LILCO's realism defense to Contentions 1-10. They are speculative with no basis in the evidentiary record of this proceeding. They are inconsistent with the sworn statements of Governor Cuomo and the County Executive. They must be rejected l out of hand. There is absolutely no basis for LILCO's attempt to turn this remand proceeding into a true-false test with a result predetermined by LILCO's having written the questions.
Finally, LILCO's assertions that it need not prove the intent of the State or County at the time of a Shoreham accident, and that it need not prove "what the State and County would do" (LILCO Oct. 30 Views at 4-5) represent yet another instance of LILCO's rearguing propositions which have been rejected by both the Commission and this Board. Thus, in denyin? LILCO's Motion for Reconsideration of its September 17 Order, the Board firmly rejected these arguments when LILCO made them for the second time
-- i.e., that "the Board [is) not to attempt to determine the precise intenti7ns" of State and County officials "for an unde-termined point in the future," and that the " core issue" cannot be "the present determination of the actual future response of the State and County." Egg October 29 Order at 3, 4. The Board held as follows:
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(footnote continued from previous page) that the State and County 'would attempt to stay in contact with LILCO or LERO or both.'" !
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l In denying the motion for summary disposition on September 17, 1987, we explained in detail and at length why inquiry is required into what the Governments will do in an emergency and why the questions posed by the Commission cannot be answered baced only on the capabilities of the State and County and the assumptions contained in CLI-86-13. We explained as to how the needed facts necessary to answer the Commission's inquiry are not currently of record and that they must be obtained in order to satisfy the requirements of the remand.
Applicant in its current motion has presented nothing to the Board that provides a basis that would cause us to alter our prior interpre-tation of the remand in CLI-86-13. As we previously found the best effort assumption in CLI-86-13 does not establish, even knowing the capabilities of the State and County, how they will respond so that a determination can be made as to the adequacy of the LILCO plan. Be-cause of this, Applicant's motion for summary disposition could not be granted. A hearing is required to obtain the facts upon which a decision can be based.
LILCO's argument that productive evidentiary I hearings cannot have as their core issue the j present determination of the actual future 1 response of the State and County is not a l meritorious legal argument for reconsideration )
and granting summary disposition. It is more a j statement of dissatisfaction with what LILCO is {
faced with in litigating this issue in the l proceeding. 1 I
The argument provides no grounds for the Board j to reconsider its decision and to grant summary disposition. The fact that the inquiry involves a matter that can only occur in the future of necessity makes the finding predic-tive in nature. It is nothing anyone can I alter. One can appreciate LILCO's unhappiness j to have the undecided remanded issue of what i the Governments' response will be so dependent l on what its hostile adversary does, but that does not permit changing the requirements laid down by the Commission.
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- Cate.ber 29 Order at 9-11. Again, LILCO's continued reargument of l matters it'has clearly lost can no longer be countenanced. This l
Board should so rule.
In general, the individual questions identified by LILCO with respect to contentions 1-10 are variations of its invented
" propositions" or so-called " established facts," or they arise out of its inaccurate and baseless reading of the new rule. Rather than going through them one by one, and in light of the Board's November 23 Order ruling that it would be inappropriate to respond to the substantive issues raised by LILCO, we set forth in Section IV.D below the issues which the Governments believe are raised by LILCO's defense to Contentions 1-10, CLI-86-13, and the new rule.
It must be stressed, however, that these issues are only prelim-inary. Once appropriate review criteria are adopted, once LILCO has identified the version of the Plan it intends to rely upon, and once LILCO specifies how it intends to attempt to satisfy the new criteria and requirements set forth in subparts (i) and (ii) of the new rule, additional issues will doubtless be identified.
C. The Staff's Views Also Ignore the Board's Rulings and CLI-86-13 In general, the Staff's views suffer from the same infirmi-ties as those of LILCO. They ignore the issues and questions, specific to this adjudication, which the Commission itself iden- I tified in CLI-86-13, and they ignore this Board's prior rulings of September 17 and October 29.
l
. One of the most blatant defects in the Staff's position is j its unfounded premise that the Governments would implement the q
LILCO Plan. Egg, e.o., Staff Oct. 30 Views at 4 (the hearings i l
should proceed "from the premise that the focus will be on the manner in which the [G]overnments will use their best efforts to implement (LILCO's] plan . . ."); Staff Supp. Brief at 5 (the new rule " focuses the remand proceeding on . . . questions relating to State and County implementation of the LILCO Plan and the inter-face between LERO and responsible government officials"). The Board clearly rejected that premise, as contrary to both CLI-86-13 and the evidentiary record in this case, when LILCO made the same argument in its Second Renewed Summary Disposition Motion.
Clearly, contrary to the Staff's suggestions, the remand proceeding on LILCO's realism defense, under CLI-86-13 and the new rule, must include a determination of what the Governments' best efforts response would be given the facts and evidence in this adjudication. That fundamental issue cannot be " premised" away; the uncontroverted statements of the Governor of the State of New York and the Suffolk County Executive cannot be ignored. This Board has held that the evidentiary record in this case requires that there be a hearing on the nature of the best efforts response. The Staff must be instructed to cease attempting to reargue positions which have already been rejected by this Board.
This aspect of the Staff's position permeates its discussion j of specific issues raised by Contentions 1-10. As a result, its definition of issues is wrong.
l 7 In addition, as a general matter, the Staff ignores the second fundamental inquiry in this proceeding: whether a govern-mental "best efforts" response would be adequate under the regula-tions. Thus, the contention-specific issues identified by the Staff, as well as its discussion of the scope of the proceeding in general, simply fail to address the need for this Board to find that a "best efforts" government response would satisfy the regu-lations, and that such a response (after the Board determines its nature) provides reasonable assurance that adequate protective actions could and would be taken.
The Staff, like LILCO, also ignores the issues raised by the new requirements in subparts (i) and (ii) of the new rule.
Finally, at pages 12-14 of its October 30 Views, the Staff argues at length about substantive issues related to ingestion pathway and recovery and reentry planning. These arguments are out-of place in the context of this procedural briefing. The Governments will respond if the Staff ever asserts those arguments in a proper substantive pleading. The Governments note, however, that in granting summary disposition on the State plan issue (Contention 92), the Board indicated that issues related to coordination and the adequacy of a government response were to be consolidated with the CLI-86-13 remand. Sag Memorandum and Order (Ruling on Applicant's Motion for Summary Disposition of Contention 92), Nov. 6, 1987 at 14-15. Thus, the Staff's argument is clearly misdirected. <
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. D. Issues To Be Considered in CLI-86-13 Remand Proceedina In this Section, the Governments state the issues they believe are raised by CLI-86-13, as interpreted by the Board's September 17 and October 29 Orders and taking into account the Commission's new rule. It remains the Governments' view, however, 1
l that a mere listing of questions or issues is insufficient to l
l provide the necessary structure to this proceeding. Egg Govern-ments Oct. 30 Views at 5-6. This proceeding is already focused on l LILCO's realism affirmative defense to Contentions 1-10, so those contentions provide the initial definition of issues; but, the existing contentions should be supplemented to reflect the issues raised by LILCO's defense, the Commission's remand thereon, the l Board's September 17 Order, and the Commission's new rule. Egg Governments Oct. 30 Views at 5-6. As discussed in Section V below, this is a matter which needs to be placed on the agenda of a conference of counsel.
To assist the Board in its review of the issues, we address j them in two contexts: the new issues raised by the rule (Section IV.D.1 below); and the issues raised by Contentions 1-10, the CLI-86-13 remand, and the Board's September 17 and October 29 l
Orders (Section IV.D.2 below).
- 1. New Issues Created by the New Rule The new rule creates three issues, identified in new subparts (i), (ii), and (iii) of amended 10 CFR S 50.47(c)(1). Subpart l
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. (iii) concerns the nature and adequacy of a "best efforts" govern-ment response._ As already discussed in this Reply, the new rule-essentially codified CLI-86-13. Moreover, the Board's September 17 and October 29 Orders are entirely consistent with that codification and the ecse-by-case adjudication called for by the rule. Accordingly, subpart (iii) is discussed in Section 1
IV.D.2 below.
Subparts (1) and (ii) of amended Section 50.47(c)(1) do create new issues, however. Specifically, LILCO, as the appli-l cant, is required to demonstrate in the case-specific adjudi-l cation:
(i) The applicant's inability to comply with the requirements of paragraph (b) of this section is wholly or substantially the result of the non-participation of state and/or local governments.
10 CFR S 50.47(c)(1)(i).
(ii) The applicant has made a sustained, good faith effort to secure and retain the participation of the pertinent state and/or local governmental authorities, including the furnishing of copies of its emergency plan.
Id. S 50.47(c)(1)(ii).
It is premature for the Governments to specify issues concerning LILCO's attempt to satisfy these requirements, because l
LILCO hhs not yet made a specific or detailed proffer setting i forth why and how it believes it will satisfy these two standards.
l
. Thus, as a first step, LILCO must proffer its bases for believing it can satisfy these criteria. Then, after the Govern-ments have reviewed LILCO's submission, the Governments will submit contentions, as appropriate, to contest LILCO's proffer.
Therefore, an evidentiary record can be compiled, so that the question of LILCO's satisfaction of the new regulatory requirements can be adjudicated. The Board should include on the confsrence of counsel agenda a discussion of the timing of these filings.
- 2. Issues Related to Contentions 1-10 In their October 30 Views and Supplemental Briefs, the Staff and LILCO purport to identify issues related to Contentions 1-10 which must be resolved in the remand proceeding. For reasons already discussed, the LILCO and Staff issues do not fairly or comprehensively frame the issues which must be decided. The Governments set forth below the principal issues, without repeating the specific issues already identified by the Commission in CLI-86-13 and by this Board in its September 17 Order. It should be understood that those Commission and Board identified issues must also be resolved, however.
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l (i) Contentions 1 and 2 -- Guiding Traffic and Blocking Roadways, Erecting Barriers in Roadways, and Channelino Traffic l
l Contention 1, the text of which is set forth in LILCO's l
October 30 Views (at page 6), concerns the implementation of an
! evacuation, and traffic control related thereto. Specifically, 1
Contention 1 alleges that LILCO personnel do not have the legal l
authority to direct traffic or to ensure that evacuees follow the i evacuation routes identified and prescribed in the LILCO Plan. It 1
then contends that the evacuation plans and procedures in the LILCO Plan cannot be implemented. It contends, further, that because LILCO's evacuation time estimates, and the computer model and analyses from which those estimates were derived, are premised upon evacuees using only the LILCO Plan prescribed routes, the inability to implement traffic control and direction as set forth in the LILCO Plan renders the evacuation time estimates inaccurate. It also raises the issues of whether there can be findings of compliance with several enumerated regulatory require-ments. The Cuomo v. LILCO decision, as accepted by the Commission in CLI-86-13, establishes the truth of the allegations in this contention (as well as all the other contentions discussed herein).
Contention 2, the text of which is also set forth in LILCO's I October 30 Views (at pages 7-8), is related to Contention 1 and !
l alleges that LILCO personnel do not have the legal authority to implement various traffic control measures such as blocking roads,
l'
. imposing " channelization" treatments, prescribing turn movements, and changing two-way roads to one-way operation. These functions -J are integral parts of LILCO's traffic control scheme. Egg cenerally LILCO Plan, Appendix A. The contention further alleges that the evacuation portions of LILCO's Plan cannot be imple-mented, and that the LILCO Plan evacuation time estimates are
[
unrealistically low and inaccurate because the use of prescribed
! evacuation routes, and other assumptions, are invalid. It also raises the issues of whether there can be findings of compliance with enumerated regulatory requirements. \
In rejecting LILCO's latest motion for summary disposition on Contentions 1 and 2, the Board found that "[t]he question of how traffic will be guided and by whom is indeed material, and we cannot rule on the ultimate issues in this case while so much uncertainty surrounds that question." September 17 Order at 35.
The Board also pointed out that "the time differential between controlled and uncontrolled evacuation might serve to limit the optional protective measures in such a way as to increase dose."
Thus, in the Board's view, a guided evacuation under LILCO's Plan "is a safety feature." Id.
Combining the questions raised by the Commission in CLI .
^
13, by the Board in its September 17 Order, and by Contentions 1 and 2 themselves in light of LILCO's realism defense, the following general issues are presented regarding what would ,
constitute an ad hqq, "best effort" governmental response: would it result in implementation of the LILCO evacuation procedures
l
- identified in the contention; would such a response meet regulatory requirements; and would evacuation remain a viable protective action?
The questions which will have to be heard and decided, based upon the facts and evidence presented, include, but are not neces-sarily limited to, the following:
- 1. Would a "best effort" government response be the same as, or consistent with, the LILCO Plan and procedures referenced in Contentions 1 and 27
- 2. Under a "best effort" government response, would the assumptions concerning compliance with prescribed evacuation routes-which underlie the evacuation time i estimates contained in LILCO's Plan be valid?
- 3. Under a "best effort" government response, would the evacuation routing, traffic control strategies (including roadblocks, prescribed turn movements, channelization treatments, one-way traffic directions, and lane blockages), and procedures described in LILCO's Plan (particularly, in OPIP 3.6.3 and Appendix A) be implemented?
- 4. Assuming the evacuation routing, traffic control strategies, and procedures in LILCO's Plan would be implemented, how and when would they be implemented?
How long would it take?
- 5. Are pertinent governmental officials, including police officials and officers, sufficiently familiar with LILCO's Plan, including its traffic control scheme, to be able to implement all or a portion of it, with or without LILCO assistance?
- 6. Under a "best effort" government response, would the evacuation time estimates in LILCO's Plan and the computer models from which they were derived be applicable, accurate, or appropriate for use in making
- protective action recommendations?
- 7. What traffic control scheme, if any, would be imple-mented, if the "best effort" government response did not adopt the LILCO traffic control proposals in whole or in part? How long would it take to develop and implement any such traffic control scheme? How would it work?
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, Would such timing, and its effect on the time necessary to implement an evacuation, satisfy the regulatory requirements and provide reasonable assurance that the public would be protected?
- 8. Under a "best effort" government response, how would a decision to develop and implement a traffic control scheme or strategy be implemented and how long would it take?
- 9. Under a "best effort" government response, how long would it take to mobilize and dispatch personnel into the field to direct traffic? l
- 10. If the "best effort" government response did not use )
LILCO traffic control schemes, how could evacuation be evaluated, or selected as a viable protective action, in the absence of valid evacuation time estimates?
- 11. Would a "best effort" government response be adequate, coordinated, integrated, and otherwise sufficient to protect the public health and safety? Would it comply with regulatory requirements?
- 12. Under a "best effort" government response, would a sufficient number of qualified personnel be available, willing, and able to implement necessary evacuati.on routing and/or traffic control strategies to protect the public?
)
(ii) Contention 4 -- Removing Obstructions l from Roadways, Includina Towino Vehicles Contention 4, the text of which is set forth in LILCO's October 30 Views (at pages 8-9), concerns LILCO's lack of authority to remove obstructions from the roadways using tow trucks or other means. In rejecting LILCO's motion for summary 1
disposition on this contention, the Board reasoned as follows: 1 (T]he ability to remove road obstructions is clearly a safety feature. Equally clearly, one cannot say from the present record how these obstructions would be removed, who would remove them, or how their removal would be coordinated
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. . . with such other functions as guiding traffic and~ selecting alternative evacuation routes..
It is not clear who would be in overall charge of a clear and well planned response. We ,
cannot grant summary disposition. 1 September 17 Order at 36.
Many of the questions identified in connection with Contentions 1 and 2 are also directly relevant to Contention 4, including the impact, of a best effort government response with respect to obstruction removal, on the viability of evacuation as a protective action and the validity or usefulness of LILCO's evacuation time estimates. In addition, other issues which will have to be heard and decided by the Board include, but are not necessarily limited to, the following:
l
- 1. Under a "best effort" government response, would the provisions for removing obstacles from public roadways described in LILCO's Plan (particularly, in OPIP 3.6.3) be implemented?
- 2. Under a "best effort" government response, assuming the provisions for removing obstacles from public roadways described in LILCO's Plan would be implemented, how, when, and by whom would they be implemented? How long i would it take?
- 3. Would government officials and personnel responsible for directing and implementing a "best effort" response be sufficiently familiar with LILCO's Plan to be able to implement LILCO's proposed measures for removing obstacles from public roadways, with or without LILCO's assistance?
- 4. How would roadway obstructions be removed from public roadways if LILCO's Plan were not followed? How long would it take to decide upon and implement any such measures? How would they work? Would they be adequate?
I
- 5. Under a "best effort" government response, would a sufficient number of qualified personnel be available, willing, and able to implement measures for the removal 1
1 E a i
. of roadway obstructions necessary to protect the public health and safety? How long would it take them to mobilize and get to their locations?
- 6. Under a "best effort" government response, would I whatever provisions for removing obstacles from public i roadways that might be implemented satisfy regulatory l requirements and provide reasonable assurance that the public be protected?
(iii) Contention 5 -- Alertino the Public Contention 5, the text of which is set forth in LILCO's October 30 Views (at page 9), presents the issue of whether LILCO 1
has legal authority to perform all the functions set forth in its l
Plan, particularly in OPIPs 3.3.4 and 3.8.2. Such functions l include deciding when, how frequently, and how to activate sirens, activating them, deciding when, how, and how frequently to make !
i EBS broadcasts, determining the content and format of EBS messages {
l to be broadcast, actually drafting EBS messages, and directing I that messages actually be broadcast. The contention also presents the issues of whether there is compliance with 10 CFR S 50.47(b)(5); Part 50, Appendix E, 5 IV.D.3; and NUREG-0654 SS II.E.5 and E.6.25/
In rejecting LILCO's third motion for summary disposition on Contention 5, the Board provided a sampling of the kinds of questions which will have to be resolved in the remand proceeding.
The questions asked by the Board included the following:
26/ We note that LILCO's characterization of Contention 5 (LILCO Oct. 30 Views at 9-10) is particularly misleading. Contention 5, as made clear above, involves more than activating the sirens and directing the broadcast of EBS messages.
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7 Whether, when, and by whom sirens would be activated; 1 l
Whether the New York State EBS, the LILCO EBS, some I other system, or.no system at all would be used in the event of a Shoreham emergency; Whether the messages prepared by LILCO or some other as yet unapproved set of messages would be used; Who would decide when to broadcast EBS messages, and by-what system; i How and at whose direction would the EBS system be I activated; What messages would be broadcast.
September 17 Order at 30, 31. In addition, the following ques-tions are presented:31/
1
- 1. How would the responsible government officials learn of l a Shoreham accident and how long would it take? l l
- 2. Who, and from which governments, would need to be con- i sulted in connection with a-decision concerning when or how to activate sirens? How would such consultations take place? How long would they take? How successful would they be?
- 3. Under a "best effort" government response, how, when, and how frequently would sirens be activated?
- 4. How would a decision to activate sirens be implemented and how long would it take?
- 5. How would a decision to activate an EBS system be made and how long would it take?
- 6. What kind of EBS system would be used? How would it work? Would it be adequate?
- 7. How, when, and how frequently would EBS messages be broadcast?
21/ It is highly likely that other issues will also be identified when more details are learned about LILCO's latest EBS scheme. As detailed in a summary disposition response being filed today by the' Governments, LILCO has provided little data regarding its latest proposed EBS scheme.
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. '8. How would a decision-to broadcast EBS messages be imple-mented and how long would that take?
4
- 9. What would the content of EBS messages be, and how-would I that content be decided? -lj
- 10. How long would it take to implement the alerting func-tion, and would such timing satisfy the regulatory requirements and provide reasonable assurance that the ,
public would be protected? {
l (iv) Contention 6 -- Protective Action Decisions and Recommendations Contention 6, the text of which is set forth in LILCO's October 30 views (at page 11), alleges that LILCO is prohibited from exercising the command and control authority necessary to order, control, direct, and implement an offsite response to a radiological emergency. Thus, the contention presents the issue of whether any portions of LILCO's Plan could or would be imple-mented. It is not limited, as LILCO would have this Board believe, to whether the State-and County would be able to decide )
between sheltering and evacuation as a protective action recommendation.28/
In rejecting LILCO's third motion for summary disposition on )
l Contention 6, the Board said the following:
2E/ In characterizing Contention 6, LILCO attempts to reduce the issues raised by the contention to the single issue of whether the State or County would, using their "best efforts," be able to make a decision about whether the public should shelter or evacuate.
LILCO Oct. 30 Views at 11; LILCO Supp. Brief at 30-32. This view ]
has already been rejected by the Board. Egg September 17 Order at 1 31-33. The issues raised by Contention 6 are much broader.
LILCO's misleading attempt to reduce the contention's issues should be summarily rejected.
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. LILCO would have us take the Commission's as-sumption of "best efforts" and the Commission's belief that local officials would rely on the LILCO plan as a " compendium" to compel the conclusion that any local official who assumed the burden of decision-making would make decisions identical to those mandated by LILCO for LERO. That leap of logic we cannot make.
In order to decide the fundamental issues in this case, we require additional evidence on the questions: Who will assume charge in the event of a radiological emergency at Shoreham?
Who will decide when protective actions are required? What criteria will the decision-maker (or decision-makers) use to determine the appropriate protective actions?
September 17 Order at 33.
The kinds of questions that will have to be heard and decided by the Board include, but are not necessarily limited to, those listed in the above quoted portion of the Board's September 17 Order, as well as the following:
l
- 1. Under a "best effort" government response, would command and control functions, including management and i coordination of an emergency response, be implemented as !
described in the LILCO Plan (particularly, in OPIPs l 2.1.1, 3.1.1, and 3.6.1)? !
- 2. Would necessary ordering, controlling, and implementa-tion of an offsite response, including appropriate protective actions, be implemented?
- 3. Assuming command and control functions, including management and coordination of an emergency response, would be implemented in accordance with LILCO's Plan, how, when, and by whom would they be implemented?
- 4. How would any decision to implement command and control functions, including management and coordination of any ;
emergency response, be implemented, and how long would it take?
- 5. Would government officials and personnel responsible for directing and implementing a "best effort" response be sufficiently familiar with LILCO's Plan to be able to
l
. implement command and control functions, including management and coordination of an emergency response, in accordance with LILCO's Plan, with or without LILCO's assistance?
- 6. Upon whom and what would government personnel rely in attempting to implement protective actions and decision-making in a "best effort" government response?
- 7. How long would it take for decisions and recommendations concerning protective actions for the public to be made?
How long would it take to communicate such decisions and recommendations to the public?
- 8. How would command and control functions, including management and coordination of an emergency response, be implemented if LILCO's Plan were not followed? How long would it take to decide upon and implement any such command and control functions? How would they work?
Would they be adequate?
- 9. Would a "best effort" government response be adequate, - - - -
coordinated, integrated, and otherwise sufficient to protect the public health and safety?
- 10. Under a "best effort" government response, would evacuation be a viable protective action or one which would provide adequate protection for the public health and safety? Would sheltering be a viable protective action which would provide adequate protection for the public health and safety?
- 11. Under a "best effort" government response, would whatever command and control functions, including management and coordination of an emergency response, that would be implemented satisfy the regulatory requirements and provide reasonable assurance that the public would be protected?
(v) Contentions 7 and 8 -- Ingestion Pathway ~
and Recovery and Reentry Contentions 7 and 8, the text of which are set forth in LILCO's October 30 Views (at page 12), deal with decisionmaking, recommendations, and implementation of protective actions for the ingestion pathway, and activities related to recovery and reentry.
In rejecting LILCO's.last motion for summary disposition on the legal authority contentions, the Board dealt with Contentions 7 and 8 tog 2ther. First, the Board noted that, in connection with Contention 7, it was "by no means clear" that LILCO and the Governments would not work at " cross purposes." Nor was it clear to the Board that if LILCO simply withdrew from participating in ingestion pathway matters, the resulting actions by the Govern-ments would comply with regulatory requirements. In part, this conclusion was attributed by the Board to the fact that the Governments had not specified the kinds of actions that could be taken in the event of a Shoreham emergency. Egg September 17 Order-at 38.
l With respect to Contention 8, the Board noted that "[t]he possible participation by local authorities and the 'best efforts' assumption do not combine to assure that proper reentry and )
1 recovery procedures will either be evolved or enforced without I some knowledge concerning who will decide and by what standards." )
14 Thus, as with Contention 7, the Board based its refusal to grant LILCO summary disposition on the fact that the record was silent regarding the actions that could be taken by the Govern-ments in making recovery and reentry decisions. Id. at 38-39.
Accordingly, based upon the Board's September 17 Order, it is clear that a number of issues must be developed so that a factual record is compiled. In addition to the questions already raised by the Board, these include, but are not necessarily limited to, the following:
L. - ._ _ . _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _
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. 1. Under a "best effort" government response, would the j determination of protective action recommendations for a the 50-mile ingestion exposure pathway EPZ be made in accordance with LILCO's Plan (and, in particular, OPIP 3.6.6)?
- 2. Would protective action recommendations for the 50-mile ingestion exposure pathway EPZ be disseminated to the public, in accordance with LILCO's Plan (and, in par-ticular, OPIP 3.6.6)?
- 3. Would protective action recommendations for the 50-mile ingestion exposure pathway EPZ be implemented, in accordance with LILCO's Plan (and, in particular, OPIP 3.6.6)?
- 4. Would protective action recommendations for the portion of the 50-mile ingestion exposure pathway EPZ contained in the State of New York be consistent, coordinated, and integrated with whatever protective action recommenda-tions would be made by the State of Connecticut (for the portion of the 50-mile EPZ within that State)?
- 5. Assuming that the protective action recommendations for the 50-mile ingestion exposure pathway EPZ in LILCO's Plan would be implemented, how, when and by whom would they be implemented?
- 6. How would any decision to implement the protective action recommendations for the 50-mile ingestion exposure pathway EPZ set forth in LILCO's Plan be made, and how long would it take?
- 7. Would government officials and personnel responsible for directing and implementing a "best effort" government response be sufficiently familiar with LILCO's Plan and sufficiently trained to be able to decide upon, or to implement, LILCO's proposed protective action recommendations for the 50-mile ingestion exposure pathway EPZ, with or without LILCO's assistance?
- 8. What kind of protective action recommendations for the 50-mile ingestion exposure pathway EPZ would be imple-mented if LILCO's Plan were not followed? How long would it take to decide upon and implement such pro-tective action recommendations? How would they work?
Would they be adequate? Who would decide upon and implement such protective action recommendations?
l l
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. 9. Would whatever protective action recommendations for the 50-mile ingestion exposure pathway EPZ that would be implemented satisfy the regulatory requirements and provide reasonable assurance that the public would be protected?
- 10. Under a "best effort" government response, would the short-term and long-term recovery and reentry operations set forth in LILCO's Plan be implemented?
- 11. Would recovery and reentry processes and functions be instituted and implemented in accordance with LILCO's Plan?
- 12. Assuming that the recovery and reentry procedures in LILCO's Plan would be implemented, how, when, and by whom would they be implemented?
- 13. How would any decision to implement LILCO's recovery and reentry procedures be made, and how long would it take?
- 14. Would government officials and personnel responsible for directing and implementing a "best effort" response be sufficiently familiar with LILCO's Plan to be able to decide upon or to implement LILCO's proposed recovery and reentry procedures, with or without LILCO's assistance?
- 15. What kind of recovery and reentry measures and pro-cedures would be used if LILCO's Plan were not followed?
How long would it take to decide upon and implement any such measures and procedures? How would they work?
Would they be adequate?
- 16. Would a "best effort" government response be adequate, coordinated, integrated and otherwise sufficient to protect the public health and safety?
- 17. Would whatever recovery and reentry procedures that ]
would be implemented satisfy the regulatory requirements I and provide reasonable assurance that the public would be protected?
(vi) Contention 9 -- Dispensino Puel l
l Contention 9, the text of which is set forth in LILCO's October 30 Views (at pages 13-14), addresses LILCO's lack of
1
. 1 i
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. -authority to dispense fuel from fuel trucks to automobiles along L roadsides. In rejecting LILCO's last motion for summary 1
disposition on this contention, the Board expressed concerns as to )
how the fuel would be dispensed, and the impact upon the public if it could not be dispensed. Egg September 17 Order at 39. J Given the Board's concerns and those expressed by the Commission in CLI-86-13, the kinds of questions that will have to be addressed by the Board include, but are not necessarily limited to, the following:
- 1. Under a "best effort" government response, could and would obstructions and blockages on roadways caused by vehicles running out of gas be prevented or removed?
- 2. Under a "best effort" government response, how and when would fuel be dispensed to evacuees? Would fuel be dispensed in accordance with LILCO's Plan or otherwise?
How would this decision be made? By whom, and how long would it take?
- 3. How would a decision to provide fuel to evacuees be implemented, and how long would it take?
- 4. Under a "best effort" response, would there be a sufficient number of qualified personnel available, willing, and able to implement the dispensing of fuel to the evacuating puolic?
- 5. Assuming that fuel were not provided to evacuees, what would be the impact on the evacuation time estimates relied upon by LILCO's Plan? What. impact would that have on the viability of evacuation as a protective action?
- 6. Assuming that fuel were not provided to evacuees, could regulatory requirements be satisfied? Would there be reasonable assurance that the public would be protected?
i l
l (vii) Contention 10 -- EPZ Access Control Contention 10, the text of which is set forth in LILCO's October 30 Views (at pages 14-15), relates to access control at the EPZ perimeter -- that is, preventing people from entering evacuated and potentially contaminated areas. In rejecting LILCO's last motion for summary disposition on this contention, the Board raised a number of questions that must be answered before it can be decided that there is reasonable assurance that the public health and safety would be protected. Egg September 17 Order at 40. These questions included the following:
Whether the public can effectively be kept out of contaminated areas or areas threatened with imminent contamination; What would occur if the local authorities were attempting to enforce one situation while LILCO was
" advising" another; What standards would the local authorities use for exclusion and over how wide an area; How would LILCO and governmental authorities interact and to what end.
In addition to the questions already raised by the Board, the following kinds of questions will also have to be heard and decided by the Board:
- 1. Under a "best effort" government response, could and would access control at the EPZ perimeters, to prevent access to potentially contaminated areas, be implemented?
- 2. How long would it take to achieve effective access con-trols?
, 3. Under a "best effort" government response, would a sufficient number of qualified personnel be available, willing, and able to implement effective access control measures at the EPZ perimeters?
- 4. Would government officials and personnel responsible for directing and implementing a "best effort" response be sufficiently familiar with LILCO's Plan, including the boundaries of LILCO's 10-mile EPZ, to be able to implement effective access control measures at the EPZ perimeters, with or without LILCO's assistance?
- 5. Would a "best effort" government response related to access control follow or attempt to follow LILCO's Plan?
- 6. How long would it take to implement access control measures at the EPZ perimeters, and would such timing satisfy regulatory requirements and provide reasonable assurance that the public would be protected?
E. Use of Existino Record The Governments' position regarding use of the existing record was discussed in their October 30 views (at pages 7-9).
The views expressed then have not changed. We continue to believe that with respect to use of the existing record, the record compiled to date is likely to be of little use.29/
I I
39/ As explained in the Governments' October 30 Views (at pages 7-8), the bulk of the record before this Board was developed long before the Commission adopted its new rule, long before CLI-86-13 was issued, and long before LILCO had even unveiled its " realism argument." Thus, up until this time, all hearings in this case have proceeded under the assumption that LILCO only would be implementing the LILCO Plan. As a result, the evidence previously adduced before this Board has not addressed State or County involvement to any significant or meaningful degree. In addition, most of the prior proceedings before this Board occurred almost four years ago and, accordingly, many allegedly relevant facts are likely to be outdated, inaccurate or inapplicable, i 1
L_________ _ _ _ - !
. The Staff has never responded to this Board's request that I
the parties express their views concerning the use of the existing ?
record. LILCO, however, has asserted that the existing record is '
sufficient and has indicated that it will attempt to use extensive portions of the record to support its case at the remanded hearings. Sag LILCO Oct. 30 Views at 17; LILCO Supp. Brief at 13-14. If LILCO believes parts of the record are useful and relevant to its position on the remanded issues, it should be
- required to designate specifically the portions of the record upon which it intends to rely. It is not sufficient for LILCO aerely to request this Board to apply the new rule to the existing record and " draw the necessary conclusions." LILCO Supp. Brief at 14.
Once the scope of LILCO's record designations is known, the other parties will be in a position to determine whether they must also designate portions of the record.
V. SCHEDULE FOR THE PROCEEDING A. General Comments In its October 8 Order, the Board requested the parties' views regarding a proposed schedule for the prehearing and hearing process. Pursuant to the Board's request, LILCO, the Staff, and l the Governments submitted proposed schedules for the Board's 1
consideration. LILCO Oct. 30 Views at 16-17; Staff Oct. 30 Views at 16-17; Governments Oct, 30 Views at 9-13.
In the Governments' view, the schedules proposed by LILCO and I ,:
the Staff are neither meaningful nor realistic. They are not meaningful because it is not possible.at this early stage -- and in the absence of rulings on some of the threshold issues -- to set a meaningful schedule for anything but the most near-term
" milestones."
Further, the Governments need to know how LILCO intends to meet its burden of proof in this proceeding, and the kind or extent of discovery and testimony that will be necessary. For these reasons, in our October 30 Views, we proposed a schedule through the filing of supplemental contentions and suggested that the scheduling of further " milestones" be deferred until there is more information regarding the Board's views-on the actual issues
'to be taken up in the remand proceeding. We continue to believe that the suggestion made by us then is the most appropriate way for this Board to proceed.
Given the preceding comments, little need be said regarding the obviously unrealistic nature of the schedules proposed by LILCO and the Staff. The Staff's proposed schedule is unrealistic not only because it calls for the remand hearing to commence within 105 days after the Board implements a schedule, but because it would allow only 45 days for discovery and 25 days for the conduct of the hearing. Egg Staff Oct. 30 Views at 16-17. Even LILCO's proposed schedule would permit eight weeks for discovery; and not even LILCO presumes to tell this Board the amount of time that the Board should devote to the actual conduct of the hearing.
I 4
1 I
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. LILLO's proposed schedule is unrealistic for different rea-sons. The primary defects in LILCO's proposed schedule is that it i
would allow only two weeks for the Governments to prepare and file j their testimony following the close of discovery (while granting l' itself and the Staff four weeks). Egg LILCO Oct. 30 Views at 16.
Throughout the Shoreham proceedings, the practice has been for all parties to file testimony simultaneously. The only exception to this was during the recent reception center hearings, when the !
Board required LILCO to file its testimony first. Having the Governments file first in the remand proceeding . Jakes no sense.
As noted, the realism argument which is the focus of this remand proceeding is the affirmative defense asserted by LILCO to Contentions 1-10. LILCO, therefore, has the burden of going forward, and the burden of proof in the remand proceeding, for the reasons discussed above. Therefore, if anything, it makes sense for LILCO to file its testimony first.
Neither the Staff's nor LILCO's proposed schedule includes time for the filing of supplemental contentions or for the filing of motions for summary disposition. It will be necessary, however, for contentions in addition to the existing Contentions 1-10 to be filed in this case. At a minimum, contentions will be necessary on the 10 CFR S 50.47(c)(i) and (ii) issues, once LILCO makes an initial proffer. In addition, it would make sense to have the various issues identified by the Governments in Section IV.D of this Reply, plus those identified in CLI-86-13 and the Board's September 17 Grder, consolidated into a single set of
_m.___ _ -
l l ,
. defined contentions which would supplement Contentions 1-10. The Governments would submit such supplemental contentions promptly upon a Board request that they do so.
It similarly is necessary to build into the schedule a time for the orderly filing of summary disposition motions. LILCO's Supplemental Brief states that a fourth motion by LILCO for summary disposition of the legal authority contentions will likely be filed. The parties should not be required to prepare or respond to summary disposition mocions during other phases of the proceeding; rather, sufficient time should be built into the schedule for preparing such motions and responding to them.
In deciding upon a schedule, it is essential that the Board be guided by what is fair and necessary in the context of this first-ever proceeding on a " realism" defense, and the first proceeding under the new rule. Speed and expediency at the cost of due process rights cannot be the guiding principle. LILCO, however, has already indicated that it will urge the Board to rely upon improper considerations in setting scheduling milestones.
Such LILCO efforts must be rejected by the Board.
Specifically, in response to the Governments' motion of November 18 for additional time to file this Reply, LILCO argued, among other things, that the time extension should be rejected because LILCO's "very existence is threatened by a combination of )
actions presently taken under the aegis of New York State . . . .
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,- LILCO's Opposition to Interveners' Motion for Extension of Time l (Nov. 19, 1987) at 3. LILCO then explained in a footnote what it meant by these "other New York State actions":
A Long Island Power Authority was created by the New York Legislature in 1986 and empowered to attempt to take control of LILCO and assure that Shoreham never operates, if in its judg-ment it could provide cheaper electric service to customers than does LILCO. Similarly, the New York Public Service Commission, in a November 5, 1987 Order, has pronounced the
" deadlock and uncertainty" over Shoreham to be
" debilitating," has ordered LILCO to begin to plan for an energy future without Shoreham, and has indicated its intent to revisit this matter in April 1988. The longer licensing issues remain unresolved, the more vulnerable LILCO becomes to collateral threats of this sort.
Id. n.5.
It takes no imagination to understand what LILCO was trying to accomplish by these veiled comments in its November 19 filing.
LILCO is encouraging the NRC, specifically this Board, to ignore due process and fair procedures for a wholly collateral and improper reason: to preclude the Long Island Power Authority and the New York State Public Service Commission from proceeding with their lawful activities. The bottom line of LILCO's argument is clear: LILCO is asking the Board to issue rulings in, and shape the course of, this proceeding not based upon the issues presented herein, but, rather, based upon what helps LILCO economically.
This Board must ignore LILCO's improper pleas. This Board is charged with resolving safety issues; it may not consider economics. Egg Union of Concerned Scientists v. Nuclear E_
l
. Reculatory Commission, Nos. 85-1757, 86-1219 (D.C. Cir. Aug. 4, 1987). LILCO's pleas that this Board premise rulings upon LILCO's economic interests must be rejected, and this Board must establish a schedule based upon what is fair and required given the complexity and unprecedented nature of the remand proceeding.
B. The Board Should Schedule a Preliminary Conference of Counsel ,
l The Governments reiterate that before any rulings are made concerning the scope and nature of the CLI-86-13 remand, this Board should hold a conference of counsel. Such a conference is essential for several reasons.
First, the parties have submitted extensive comments con-cerning the CLI-86-13 remand and the new rule, containing strongly differing views, interpretations, arguments and proposals. A preliminary conference would provide an opportunity for the Board to obtain additional information and comments directed to those issues upon which the Board wishes to focus in making its threshold decisions as to the structure of the CLI-86-13 remand ;
J proceeding.
Second, such a conference would provide an opportunity for the Board to establish some order in this proceeding -- a proceeding which, prior to the Board's "new filing" hiatus order of November 16, 1987, was careening out of control -- because of l
improper litigation tactics by LILCO, among other reasons. Third, )
i such a conference would provide the parties with an opportunity to l
?
discuss the various procedural and substantive matters which need to be addressed at the threshold as a result of the appointment of a new Board Chairman in this long-ongoing proceeding.
The Staff has also supported the need for an initial pre-hearing conference "providing [an] opportunity for oral argument l
concerning [the) scope of [the] proceeding and [the] questions to be addressed." Staff Oct. 30 Views at 16. As suggested in the Governments' October 30 Views, in order to make the conference as effective as possible, the Board should issue an agenda of matters to be discussed, allow the parties to suggest additional items to be added, and then distribute a final agenda a day or two before the conference.
As a final matter, the Governments respectfully suggest that, until an initial conference of counsel can be held, this Board should bar the filing of any further motions relating in any way to the issues yet to be heard and decided by the Board.
Otherwise, the Board -- and.the Governments -- face thr' prospect of having to devote attention and resources to even more LILCO summary disposition motions and other litigation tactics that accomplish little of substance, but cost much in time and energy, and result in keeping the CLI-86-13 remand proceeding from progressing in an orderly and efficient fashion.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York' 11788 J Herbert H. Brown Lawrence Coe Lanpher Karla J. Letsche Michael S. Miller {
KIRKPATRICK & LOCKEART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County 0 OM Lb RM, Fabian G. Palomino Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York
/' AD Stephen B. Latham W
Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton L ______ _ _ _
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--Continued from Page 3 and safe or we ought not turn them on."
Zech said NRC's action was " responsible" and will not change the commisaton's baste responal-bthty to protect the pubhe health and safety.
140g laland Lighting Cofs cluef attorney, An-thony Earley, said it was unclear what impact the actbn would have on LILCO's case for a full-power license for Shoreham, wtuch is now pend-mg before an NRC Atenue Safety and Licensing Board. liowever, the company is hoping it will expedite an agency decision to hft the 5 percent power restnetton on Shoreham's hcense, he said.
But Shoreham opponents said the rule would not do that In fact. Herbert H. Brown, an atter-ney for Suffolk County, said the new rules would make it more dimcult for L11CO to obtain a full. '-
power beense because they will invite comphcat-ed htigation over the legality of the new rule and its apphcation to Shoreham. Supporters of a pub-he takeover of LILCO said it won't matter any, way because the long !aland Power Authonty is expected to decide in the next month whether to go forward with a LILCO acquisition.
The new rules are based on the NRC's *real-ism" theory - the assumption that state and lo-cal governments would put forth their "best ef-forW' to protect the pubhc to an emergency, even though the governments any they would not.
"This rule leaves it to the licensing board to judge what form the best efforts of state and local omenals would take," the final document said-However, the commiamon,in what appeared to be a reversal ofits staffs recommendation, sug-gested that the local governments would use the plan developed by the utility because tt would be the only plan avauable. The version recommend-ed by the NRC staff one week ago said the com-mission should make no assumptions about whether the governments would follow uttlity plans. That version drew cr2tictsm from the in-dustry and from pro-nuclear lawmakers Accordmg to the final version: *lt to only rea.
.onaole to suppose that in the event of a radio-lucical emergency, state and local officials, in the absence of a state and local radiological emergen-cy plan approved by state and local governments, will either look to the utthty and sta plan for guid-rice or will follow scme other rdan that exista."
But the regulation also says NRC licenstng boards "may" presume - nJt that they "must" presume - the governmen a will follow the pro-cedures outhned in the utility plan. Ant Zech said after the vote that with state and local gov- I ernment cooperation, plans would be approved more quickly and "you d probably end up with a i better plan "
He also said that the new rule "duesn't assume ,
they'll follow the plan af they say they won't, but we do assume that state and local governments will do their best to protect their citizens."
Sen. Alfor.ae D'Amato t R.N.YJ called it "outra-geous as ever* and said that"they're pressing for-ward with this preposterous idea that the pubhc
.:an be assured ornafety when tne only one devel-f opmg the evacuation plan is the utility."
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o 00LKETE0 Ust4RC N vember 30, 1987 87 DEC -3 P12:37 UNITgp 4TATES 10Q, AMERICA NUCLEAR)0tEGULATORWICOMMISSION BRANLH BefoI_e the Atomic Safety and Licensino Board
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of GOVERNMENTS' REPLY TO VIEWS AND SUPPLEMENTAL BRIEFS OF LILCO AND TUE NRC STAFF CONCERNING THE CLI-86-13 REMAND PROCEEDING AND THE IMPACT OF THE OCTOBER 29 RULE ON THAT PROCEEDING have been served on the following this 30th day of November, 1987 by U.S. mail, first class, except as otherwise noted.
James P. Gleason, Chairman
- Mr. Frederick J. Shon*
Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry R. Kline* William R. Cumming, Esq.
Atomic Safety and Licensing Board Spence W. Perry, Esq.
U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C. 20555 Federal Emergency Management Agency 500 C Street, S.W., Room 840 Washington, D.C. 20472 l
Fabian G. Palomino, Esq. W. Taylor Reveley, III, Esq. *
- Richard J. Zahleuter, Esq. Hunton & Williams Special Counsel to the Governor P.O. Box 1535 Executive Chamber, Rm. 229 707 East Main Street State Capitol Richmond, Virginia 23212 Albany, New York 12224 Joel Blau, Esq. Anthony F. Earley, Jr., Esq.
Director, Utility Intervention General Counsel N.Y. Consumer Protection Board Long Island Lighting Company Suite 1020 175 East Old Country Road Albany, New York 12210 Hicksville, New York 11801 Martin Bradley Ashare, Esq. Ms. Elisabeth Taibbi, Clerk Suffolk County Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Building Hauppauge, New York 11788 Veterans Memorial Highway Eauppauge, New York 11788 Mr. L. F. Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C. 20555 Mary M. Gundrum, Esq. Hon. Michael A. LoGrande New York State Departrent of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 Mr. Jay Dunkleburger Edwin J. Reis, Esq.
New York State Energy Office George E. Johnson, Esq. >
Agency Building 2 U.S. Nuclear Regulatory Comm.
Empire State Plaza Office of General Counsel Albany, New York 12223 Washington, D.C. 20555 l
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David A. Brownlee, Esq. Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W. 43rd Street New York, New York 10036 Douglas J. Hynes, Councilman Mr. Philip McIntire Town Board of Oyster Bay Federal Emergency Management Town Hall Agency Oyster Bay, New York 11771 26 Federal Plaza New York, New York 10278
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- By Federal Express 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C. 20036-5891
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