ML20235R392

Response Supporting Lilco Motion for Summary Disposition of Contention 92.Applicant Entitled to Decision as Matter of Law & 870911 Motion Should Be Granted.Certificate of Svc Encl

ML20235R392
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/05/1987
From:	Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
OL-3, NUDOCS 8710080032
Download: ML20235R392 (13)

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UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COMMISSION >

)

( ,

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD in the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

NRC STAFF RESPONSE IN SUPPORT OF LILCO MOTION FOR

SUMMARY

DISPOSITION OF CONTENTION 92

1. INTRODUCTION By motion dated September 11, 1987, Applicant Long Island Lighting Company (LILCO) has moved for summary disp >sition of Contention EP 92.

That contention provides:

There is no New York State emergency plan to cleal with an emergency at the Shoreham plant before this Board. ... In i addition, the LILCO Plan falls to provide for coordination of i LILCO's emergency response with that of the State of New York {

(assuming, arguendo, such a response would be forthcoming). l

... In the absence of a State emergency plan for Shoreham, {

there can be no finding of compliance with 10 C.F.R. 66 50.47(a)(2), 50.47(b), or N U REG-0654 96 1.E., l.F., l.H.

or 11. [ Footnote omitted.]

LBP-85-12, 21 NRC 644,1024 (1985).

\

In the Partla! Initial Decision (PID) of April 17, 1985, the Licensing Board, in ruling on Contention EP 92, foun:f that the lack of a New York l State emergency response plan for Shoreham " constitutes a serious j

substantive deficiency in emergency preparedness at ghoreham." 21 NRC at 884-85; see also LBP-85-31, 22 NRC 410, 428 -29 (1985). The Board ]

based its finding on (1) its reading of the regulations (50 C.F.R.

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UNITED STATES OF AMERICA

- NUCLEAR REGULATORY COMMISSION b ..

i 1 ye , lBEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4

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-In' the Matter of  : .)

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' LONG. lSLAND LIGHTING COMPANY . ) Docket No. 50-322-OL-3 ,

i ) (Emergency Planning)

(Shoreham. Nuclear Power Station, )

i. Unit 1) / " ) e I r il

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NRC STAFF RiiSPONSE)N SUPPORT OF LlLCO

' MOTION 'FOR

SUMMARY

DISPOSITION OF CONTENTION 92 e

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L l. INTRODUCTION -

By agotion dated September 11, 1987, Applicant Long Island Lighting /

,CompM f v (LILCO) has moved for summary disposition of Contention EP 92.

4 That Oontentkn provides: V ,/

There is no New York Staje ' emergency plan to deal with an l0 emergency at the Shoreham plant before this Board. ... In addition , the - LILCO P',an Valls to provide for coordination of y LILCO's emergency; response with that of the State of New York h<.

(assuming,6 arguendo, such a response would be forthcoming).

... In the absence of a State emergency plan for Shoreham, l

there can be no flodin of compilance with 10 C.F.R.

ll 50.47(a)(2), 50.47(b), gor NUREG-0654 05 1.E., I.F., l.H. '3

? or ll. (Footnote omitted } .

LBP-85-12, 21 NRC 644,1024 (1985). 4 in the Partial Initia! Decision (PID) of April 17, 1985, the Licensiry Board, in ruling on Contention EP 92, found that the lack of a New York I emorgency response plan for Shoreham " constitutes a serious a/ State , .,!

i L substaritNe' deficiency in emergency preparedness at Shoreham." 21 NRC '

t at.884-85; see hiso LBP-85-31, 22 NRC 410, 428-29 (1985). The Board L ibased its finding on (1) Its reading of the regulations (50 C.F.R.

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c" g ' fr 50.47(c)) as not permitting a quMity plan to substitute for- the total g

absence .of State planning ar2 coop,eration, and (2) Its conclusion that, despite LILCO's " capability to perform the four specific tasks that have i

cbeen identified as State functions. . .. ,

the pub!!c health and safety f .s can[not) .be protected as wall by LILCO acting alone as it couN if LILCO were acting in conc.vtytth the State" and the county. Id.

l- Subsequently in Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit No. 1), CLl-86-13, 24 NRC 22, 29-31 (1986), the Commission stated that a utility plan could be found to meet Commission emergency planning regulations even in the total absence othState l

l cooperation. The Commission stated that the test, under Commission's emergency planning regulations, is not whether the public would be as well protected under a utility plan as under a State plan, but whether the< utility plan provides reasonable assurance that the utility could take reasonable protective actions to achieve dose reductions. On this basis the Appeal Board, in ALAB-847, 24 NRC 412, 429-32 (1986), remanded to l

the Licensing Board for reconsideration Contention EP 92, dealing with the lack of a State plan,' stating:

The Board should now revisit its earlier decision in light of the Commission's determination that the lack of state cooperation does not per se render LILCO's plan inadequate. In this regard, the Board must take into account that the Commission's regulations establish the regulatory requirements. Contrary to the Board's apparent earlier belief, a utility plan cannot be deemed to have shortcomings simply because a governmental body may pe-form various undescribed functions not required by the regulations. Moreover, the sufficiency of " interim compensatory actions" designed to accommodate for deficiencies such as the lack of a. state plan need not necessarily provide precisely the same level of protection that total correction of the deficiencies would offer. On remand, the Licensing Board shall reexamine whether there are identifiable deficiencies in LILCO's ability to fulfill the four state functions so as to render the LILCO plan inadequate. If, however, the Board

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continues to believe that' the insufficiencies In LiLCO's plan result; solely from either (1) LILCO's inability to do things not required- by the regulations, or (ii) the State's capacity. to provide a level of safety beyond that considered adequate, it must find that LILCO , has prevailed . on Contention 92.

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(Footnote omitted) 24 NRC at 432.

Most recently, the Licensing Board had occasion to- further address

, the relationship of. LlLCO's lack of legal authority to impose interdiction )

measures for the ingestion pathway to the Board's findings with regard to

'the adequacy of the LILCO Plan for the ingestion pathway. Memorandum bka- and Order (Ruling on Applicant's 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 interpretative Rulings Made by the Commission in C Ll-86-13 involving the Remand of the Realism issue and its Effect on ,

the Legal Authority Question, slip op. at 36-38, September 17, 1987

-(" Memorandum and Order"). While noting its earlier factual findings that

. LI LCO could implement the LILCO only Plan (Contention EP 81), the Board, in denying summary disposition of the legal authority contention

.on the Ingestion pathway, distinguished the question presented on remand of the " realism" issue from the issue previously addressed. Id. at 37-38.

The Bcard stated:

There we decided that LILCO, acting alone and armed only with the power to offer to purchase foodstuffs, could give reasonable assurance that contaminated food would not enter the general i market. Here the question is one concerning exactly what would occur if LILCO proceeded independently while the State and local Governments did something unspecified to further the j o same ends.

It is by no means clear to the Board at this time that the two groups would not work at cross purposes, nor is it clear that if LILCO simply withdrew the resulting actions by the Governments, presently unspecified, would comply with NRC regulations. Thus we cannot grant summary disposition on Contention 7.

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The Board did not address Contention EP 92, which does raise the lack New York State pre-planning and cooperation, but the import of its recent

! decision is that factual issues still remain to be determined on the l

adequacy of ingestion pathway planning pursuant to 10 C.F.R.

6 50.47(c).

As argued below, the factual matters cited by the Board in its September 17, 1987 Memorandum and Order are not material to a decision on Contention EP 92, and no other material factual issues remain which must be determined for the Board's to rule on this remand. Based on the facts already determined in LBP-85-12 and the controlling precedents of CLI-86-13, and ALAB-847, Applicant is entitled to a decision as a matter of law. The Applicant's motion for summary disposition should be granted.

fl. DISCUSSION The central question presented by the Appeal Board's remand is whether the Licensing Board made the factual findings in the PID necessary to support a conclusion that, notwithstanding lack of a State plan or prior commitments by the State to cooperate in response to an accident at Shoreham, the LILCO Plan provisions for the ingestion exposure pathway constitute adequate " interim compensating actions" under 10 C.F.R. Section 50.47(c) and do not stand in the way of a reasonable assurance finding under 10 C.F.R. Section 50.47(a).

In ruling on Contention EP 92, the Licensing Board stated it that "found in other contentions that the four specific functions normally performed by the State at other plants during a radiological emergency l

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are within LILCO's physical capability in a radiological emergency at Shoreham." 21 NRC at 884. The four functions are (1) dose projection based on release data communicated to the State, (2) ingestion pathway sampling in the 50-mile EPZ, (3) Interdiction of contaminated foods, and (4) protectiv'e action recommendations. Id. at 883. The Board had found ]

that LILCO, without State cooperation could perform those functions in l

ruling on Contention EP 81. Id. at 877-78. Further, the Board stated it had "no trouble finding that LILCO has the capability to perform the four specific tasks that have been Identified as State functions. . .

Id.

However, because of a lack of State planning and cooperation the i Licensing Board concluded under Contention EP 92 that the LILCO plan could not be found to meet regulatory requirements. 21 NRC at 885.

The Commission, in CLl-86-13, 24 NRC at 29, particularly held that under 10 C.F.R. 6 50.47(c)(1) a utility plan, without any assurance of state' cooperation, may be found to comply with the regulations if defects  ;

are "not significant" or there are " adequate compensating actions." It stated that the test to be applied to the LILCO plan is whether the Plan can " provide for ' adequate protective measures ... In the event of a radiological emergency.'" Id. The Commission particularly rejected a test of seeing if the utility alone could achieve the dose reductions which might be reasonable and feasible with governmental cooperation, but stated that a utility plan might be found adequate "If there was reasonable assurance that it was capable of reaching dose reductions in the event of an accident that are generally comparable to that which might be accomplished with government cooperation. " 24 NRC at 30.

J I l in ALA B-847, 24 NRC at 431, the Appeal Board reiterated the Commission's holding and stated that "the lack of any coordination with the State does not preclude LILCO from demonstrating that it can meet the requirements of 10 C.F.R. 6 50.47(c)(1)." M With regard to the adequacy of the LlLCO Plan for the ingestion pathway, this Board found in LBP-85-12 that there are "no barriers to

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LILCO's ability to warn the public through EBS messages or indeed to telephone individual farmers and food processors with appropriate messages concerning the withholding of food products from the market."

21 NRC 877. It also found that food producers and processors would comply voluntarily with warning notices and would voluntarily participate in LILCO's planned purchase of contaminated or unsalvageable food. Id.

It also found "LILCO's lack of authority to impose the terms of its plan on food producers or processors is not a fatal flaw in its plan for the ingestion pathway zone." U Id. at 878. It further found even in the

-1/ In this context it may be questioned whether Contention EP 92 should have been admitted. The contention alleges that there is no New York State Plan for Shoreham, that the LILCO plan does not provide for coordination with the State, and thus there can be no compilance with the Commission's emergency planning regulations. 21 NRC at 1024. As we have stated, the Commission in CLI-86-13 determined that a utility plan might suffice in the absence of a State plan and coordination with the State. Further, the Licensing Board had before it Contention EP B1 on the adequacy of the LILCO Plan, and found that the LILCO plan would interdict food in the ingestion pathway, even in the absence of State cooperation. 21 NRC at 877-78.

-2/ Nor did the Licensing Board find that LILCO lacked authority to carry out its own plan without State cooperation when it previously I addressed the legal authority contentions in LBP-85-12. The Board '

only noted that " Interveners may well respond in a planned manner (FOOTNOTE CONTINUED ON NEXT PACE) 1 I

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absence of State participation, "we have reasonable assurance that the LILCO Plan is workable. Id. In its September 17, 1987 Memorandum and Order, the Board restated that its finding "that LlLCO, acting alone and armed only with the power to offer to purchase foodstuffs, could give reasonable assurance that contaminated food would not enter the general market." Memorandum and Order at 38. Thus, the Licensing Board has found that absence of mandatory legal authority does not stand in the way of implementation of the LILCO Plan.

However, in addition to finding that State planning and cooperation was not only a prerequisite to a finding of regulatory compliance with 10 C.F.R. 6 50.47(b)(10) and NUREG-0654, 6 II .J.11, but would provide a superior response -- bases found to be erroneous in ALAB-847 -- the Licensing Board found in response to LlLCO's " realism" argument that, even assuming there were a planned Intervenor response, "there is no (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) insofar as they respond, [but) there is no reasonable assurance of record that the response will be in cooperation and coordination with Applicant, which is contemplated for an adequate plan [ citing findings on Contention EP 92]" Id. at 912. In addition, the Board noted that LI LCO's failure to argue that making decisions and recommendations to the public concerning protective actions for the ingestion exposure pathway was immaterial to meeting regulatory requirements constituted an acknowledgement by LILCO that " absent approval of these activities on the preemption or realism bases, its exclusive utility plan for these important functions could not meet the regulatory requirements." id. at 919. (Emphasis addedT ET5tFi of these arguments appear to address satisfaction of 10 C.F.R. 6 50.47(b)(10) as previously interpreted by the Board. As noted, however, under CLI-86-13 and ALAB-847, an inability to satisfy that provision does not bar a showing of sufficient " interim compensatory actions" under 10 C.F.R. 6 50.47(c).

4 reasonable assurance of record that the response will be in cooperation and coordination with Applicant, which is what is contemplated for. an adequate plan (citing the Board's finding on Contention EP 92]." In its September 17, 1987 decision, the Licensing Board rejected summary disposition of Contention EP 7 on similar grounds -- that it "is by no means clear to the Board at this time that the two groups [LILCO and the governments] would. not work at cross purposes, nor is it clear that if LILCO simply withdrew the resulting actions by Governments, presently unspecified , would comply with NRC regulations." Memorandum and Order at 38.

To the extent the Board's determination on summary disposition of Contention EP 7 may have the effect of finding that factual issues on the adequacy of ingestion pathway response remain, several factors argue for reconsideration, reversal, and granting of summary disposition of Contention EP 92.

First, even assuming lack of a coordinated ad hoc response, it is incredible to suppose that if LILCO carries out its Plan to interdict foodstuffs, the State would direct non-interdiction. U in any event, even were the State to so direct, few people would purchase products LILCO announces are possibly contaminated. Thus, lack of coordination would not have a material effect on actions of the public, and proof concerning precisely what the State would do appears unnecessary.

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Unless the interveners by affidavit in response to the pending motion state they would direct "non-interdiction," there is no basis for dispute of the prior finding that LILCO could buy and l keep from the market contaminated food.

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. Second, although 'the Board recently expressed doubt as to the adequacy of a State' response should LILCO withdraw, in LBP-85-12, the

^ Board . found - that the State's superior resources would lead to a more comprehensive, response in a genuine emergency, not one that is . less effective. 21 NRC at 885. Thus, the Board's previous finding is inconsistent with its recent decision.

As a result, the peculiar factual circumstances and prior findings of j this ~ Board distinguish the legal authority issues raised under Contention EP. 7 and ;EP 92 from, other legal authority issues. Precisely what the State would do when faced with an emergency is not material to deciding whether the. LlLCO Plan provides sufficient "interlm. compensating action"

.under 10 C.F.R. 9 50.47(c).

In sum, there are no material facts in dispute. Former determinations under Contention EP 81 and the facts in the record provide an ample basis for the Board to find under Section 50.47(c) that the LlLCO Plan constitutes adequate " interim compensating actions" permitting a reasonable assurance finding, notwithstanding lack of literal compilance with Section 50.47(b)(10) and NUREG-0654. Finally, there are no factual issues which need be resolved under the rubric of " realism,"

and no legal barrier to a finding of regulatory compliance, i

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lil. CONCLUSION Based ^ on the foregoing , Applicant is entitled to a decision as a matter of law , and Applicant's motion for summary disposition of

. Contention EP 92 should be granted.

Respectfully submitted,

&;f(fI f ' L<fu

' George El Joh n Counsel for N Staff Dated at Bethesda, Maryland this 5th day of October,1987 l

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e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD in the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 -O L-03

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

CERTIFICATE OF SERVICE 1 hereby certify that copies of "NRC STAFF RESPONSE IN SUPPORT OF LILCO MOTION FOR

SUMMARY

DISPOSITION OF CONTENTION EP 92" in the above-captioned proceeding have been served on the following by deposit in the United States mall, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mall system, this 5th day of October 1987.

Morton B. Margulies, Chairman

• Joel Blau, Esq.

Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Jerry R. Kline* Fabian G. Palomino, Esq.

Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 Frederick J. Shon* Jonathan D. Feinberg, Esq.

Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, DC 20555 Albany, NY 12223 Philip McIntire W. Taylor Reveley 111, Esq.

Federal Emergency Management Donald P. Irwin, Esq.

Agency Hunton & Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 l New York, NY 10278 Richmond, VA 23212 1

! Douglas J. Hynes, Councilman Town Board of Oyster Bay 1

Town Hall Oyster Bay, New York 11771 l

Stephen B. Latham, Esq. Herbert H. Brown, Esq.

.Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.

Attorneys at ' Law . Karia J. Letsche, Esq.

. 33 West Second . Street Kirkpatrick & Lockhart Riverhead, NY 11901- South Lobby - 9th Floor 1800 M Street, NW Atomic Sefety and Licensing Washington, DC 20036-5891 Board Panel

• U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington,, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Building 2 Appeal Board Panel

• Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY: 12223 Washington, DC 20555 Spence W. Perry, Esq.

Martin' Bradley Ashare, Esq. General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY.- 11788 Washington, DC 20472 Dr. Monroe Schneider Robert Abrams, Esq.

North Shore Committee Attorney General of the State P.O. Box ' 231 of New York Wading River, NY 11792 Attn: Peter Blenstock, Esq.

Department of Law Ms. Nora Bredes State of New York Shoreham Opponents Coalition Two World Trade Center 195 East Main Street Room 46-14

. Smithtown, NY 11787 New York, NY 10047 Anthony F. Earley, Jr. William R. Cumming, Esq.

General Counsel Office of General Counsel Long Island Lighting Company Federal Emergency Management

'175 East Old Country Road Agency Hicksville, NY 11801 500 C Street, SW Washington, DC 20472 Dr. Robert Hoffman Long Island Coalition for Safe Docketing and Service Section*

Living Office of the Secretary P.O. Box 1355 U.S. Nuclear Regulatory Commission Massapequa, NY 11758 Washington, DC 20555 Mary M. Gundrum, Esq. Barbara Newman New York State Department of Law Director, Environmental Health 120 Broadway Coalition for Safe Living 3rd Floor, Room 3-116 Box 944 New York, NY 10271 Huntington, New York 11743  !

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