CLI-86-11, NRC Staff Brief on Contention Ex 19.* Lack of FEMA Reasonable Assurance Finding Cannot Be Fundamental Flaw in Plan,As Defined in CLI-86-11.Contention Ex 19 W/O Merit.W/ Certificate of Svc
| ML20238F204 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/11/1987 |
| From: | Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20238F192 | List: |
| References | |
| CLI-86-11, OL-5, NUDOCS 8709160024 | |
| Download: ML20238F204 (13) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 3
9 g'p o c e nu G &p1 y E$$$$d BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ) w in the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise) '
(Shoreham Nuclear Power Station, )
Unit 1) )
NRC STAFF BRIEF ON CONTENTION EX 19
- 1. INTRODUCTION Pursuant to the October 3, 1986 Prehearing Conference Order, at l 13, Contention EX 19 was admitted in order to address the legal question presented therein -- "the extent to which FEMA's inability to make a favorsble finding reveals a fundamental flaw in the plan." M. The merits of this ' contention and the views of Applicant and Interveners are considered below.
Interveners make two arguments. First it is argued that the lack of a favorable reasonable assurance finding is based on a finding by FEMA that the Exercise was too limited. Intervenor Proposed Finding 31. Such a determination, according to interveners, is itself a finding, which is to be presurned, if not rebutted. M. Interveners argue that such finding was not rebutted , and thus must be accepted. intervenor Proposed FindinOs 31 and 32.
Second, interveners argue that under FEMA procedures, the several findings of deficiencies in the Exercise evaluation required FEMA to make a negative finding of reasonabic assurance; and FEMA would have, but 8709160024 870911 PDR ADOCK 05000322 O PDR
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for a prior policy determination that no overall finding . would emanate from -the FEMA review of the Exercise. Intervenor Proposed Findings 37-41. Vioreover, Interveners argue that such a ' finding was apparent .
from the FEMA evaluation report, and could have been, but was not, rebutted. Intervenor Proposed Finding 42.
Appilcant argues in a separate pleading, LILCO's Brief on Contention ,
EX 19 ("Brief"), that Contention EX 19 is without merit. Appilcant argues
'In the alternative: First, if Contention EX 19 asserts that, because there was no State and local participation in the Exercise, FEMA could not make a reasonable assurance finding, that contention must be rejected because it is inconsistent with applicable legislation, Commission regulations and a:: Jdicatory decisions in -this case permitting licensing of power reactors based on utility-only plans. Brief at 7 - 11. This argument is not addressed separately below since Interveners have not argued that Contention EX 19 is based on lack of State and local participation in the Exercise. Interveners' Proposed Findings,' note 28..
Second, Applicant argues that if the contention would require a finding by FEMA of reasonable assurance based on the Exercise in order for the NRC to make an overall finding of reasonable assurance under 10 'C.F. R. 50.47 (a)(1), there is no such requirement. Brief at 11-17.
Applicant's second characterization of the issue before us closely 4
coincides with interveners' statement that "[t]he first issue is whether FEMA's inability to make any kind of express, bottom line, imple-rentability finding bars the NRC from making a reasonable assurance finding favorable to LILCO." Interveners' Proposed Finding 29.
- , The Board's original interpretation of the contention as addressing whether a favorable reasonable assurance finding by FEMA is required for ilcensing, however, is clecr, and is the is. sue addressed below. See Prehearing Conference Order, supra, interveners'- argument that the inability - to' make a favorable finding constitutes a negative finding is unpersuasive.- As proffered, the contention does not rely on a particular f reason why FEMA failed to make a finding. As noted in the Prehearing Conference - Order, Contention EX 19 was set for legal argument. l Intervenorsi argument' that the scope of the Exercise was too ilmited is a factual matter dealt with in Contentions EX 15 and 16, and is outside the scope of Contention EX 19.1 Similarly, since the contention does not raise the individual Deficiencies found by FEMA as bases, we find it unnecessary to address ' interveners' argument that, based on its factual findings , FEMA did reach, or would have reached, a negative finding.
See interveners' Proposed Findings 30-36. 2_/
Returning to the issue which was raised by Contention EX 19, we find below that, under applicable regulations and decisional law , an !
overall favorable finding by FEMA of reasonable assurance based on the
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1/ if interveners' argument is based on the premise that due to lack of government participation, FEMA was precluded from making a reason-able assurance finding, something Interveners' have denied, this issue is dealt with below, in any event, as shown below, neither argument supports treatment of FEMA's action as a negative finding under NRC regulations.
-2/ Interveners argue that the findings of Deficiencies by FEMA were, under FEMA policy, tantamount to a negative finding which was unrebutted. There can be little doubt, however, that LILCO strenuously attempted, through its testimony and findings, to rebut the FEMA Deficiencies.
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Exercise is not a requirement, and FEMA's failure to make ruch a' finding i does not bar a finding of reasonable assurance by the NRC. As a result, ;
the absence of such a finding is not a fundamental flaw, !
- 11. STATEMENT OF FACTS
, inasmuch as this issue turns in part on the administrative y construction of NRC regulations, we address briefly the statements of FEMA and the NRC in connection with the question whether either FEMA or NRC . contemplated - that the absence of a FEMA reasonable assurance finding would preclude licensing of Shoreham by the NRC.
On ' June 4,1985 the Commission directed the Staff to request FEMA to conduct an exercise of the LILCO Plan, noting that such an exercise "could yleid meaningful results, even though such an exercise may not satisfy all of the requirements of NRC's regulations." $I The Comniission noted that the exercise "could, as a minimum, identify the impact of the ilmitations of > LILCO's plan when executed under the. state and county restrictions." d.
,l_d On June 20, 1985, the Staff requested that FEMA schedule as full an exercise as feasible, reiterating the Commission's reasoning cited in the June 4,1985 directive. E Subsequently, FEMA responded by providing two options under which an exercise would be feasible, one limited to LILCO functions only (Option 1), or one including all functions and normal exercise objectives with exercise controllers simulating roles of key state and local officials 3/ Memorandum from Chilk to Dircks , COMT R-85-5 A , June 4, 1985.
3/ Memorandum from Jordon, NRC, to Krimm, FEMA, June 20, 1985.
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- (O'ption 2. )l 5_/ FEMA stated that neither of the options it outlined would allow a finding by FEMA on offsite preparedness:
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. Any exercise without participation by State and local /
governments would not allow us sufficient demonstra- I tion to reach a finding of reasonable assurance. This conclusion is based on the current legal decision with respect to utility authority to perform civil emergency ,
functions.
,l d . Thus, FEMA's reasoning for not being able to make a reasonable
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assurance finding based on the E>:ercise was the fact that certain " civil emergency functions" reserved by law to State and local authorities would not be demonstrated.
Nevertheless, FEMA noted that NRC might be able to use the Exercise, though so limited, to make a predictive finding for licensing purposes.
However, that does not preclude the conduct of an exercise that would provide an indication to the Nuclear Regulatory Commission (NRC) as to utility or. site and offsite emergency capabilities. We believe such a report would have value in decisions to continue the licensing process or possibly provide a basis on which the NRC could make predictive ,
findings. Obviously, the value of such an exercise in the licensing process is a determination which can only be made by the NRC. i N'
The NRC then requested FEMA to conduct an exercise consistent with the approach outlined in Option 2. b The Commission determined that conduct of the Exercise would provide "important and material information" by assisting a determination by the Commission as to whether 5/ Letter from Speck, FEMA, to Dircks, NRC, October 29, 1985.
6/ Letter from Dircks , NRC, to Speck , FEMA, November 12, 1985.
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1 L., any defects that exist due to lack of cooperation by State and local officials are significant under NRC regulation citing , 10 C.F.R.
-6 50.47(c)(1). Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), CLi-86-14, 24 NRC 36, 39, 41 (1986). The Commission also determined that the conduct of an Exercise was necessary to evaluate LERO's capability to accommodate ad hoc governmental participation in the f event of an actual emergency. Id. at 40.
lli. ARGUMENT As noted in LILCO's Brief, at 9, the Commission has held that in the situation presented in Shoreham -- that is, the refusal of State and local authorities to participate in offsite emergency planning -- NRC statutory authority permits and NRC regulations require an applicant be given an opportunity to demonstrate that the applicable emergency planning requirements can be met with a utility-only plan. CLi-83-13, 17 NRC 741, 742-43, citing 10 C.F.R. 50.47 (c)(1). Since that 1983 decision, the Commission has conducted hearings on the LILCO Plan, and more recently, on the Exercise of that Pla n. In CLI-86-13, 24 NRC 22, 29 (1986), after FEMA stated it would not make a reasonabic assurance finding the Commission reiterated (in connection with its review of ALAB-818 legal authority issues):
... we intended our rules to be flexible. As we have stated before , we are legally obligated to consider whether a utility plan, prepared without government cooperation, can pass muster. A utility plan might pass muster under 10 C.F.R. 9 50.47(c). Section 50.47(c) provides for licensing notwithstanding noncompilance with the N RC's detailed planning standards: (1) If the defects are "not significant";
(2) if there are " adequate interim compensating actions"; or (3) if there are "other compelling
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l reasons." The decisions below focus on (1) and. (2) and we do likewise.
Thus the Commission has determined that Applicant cannot be denied a license merely because of the' absence of a FEMA finding where there are. no State and local emergency' response plans for FEMA to review.
' Moreover , the Commission's emergency planning regulations, t
10 C.F.R. 50.47(a)(2), states in ' part: i The NRC will base its finding on a review of the -
c deral Emergency Management. Agency (FEMA) find-e ings and determinations as to whether State and local emergency plans are adequate and whether there is recsonable assurance that they can be implemented...
That same provision also states that:
A FEMA finding will primarily be based on a review of the plans. Any .other information already available to FEViA may be considered in. assessing whether there is reasonable assurance that the plans can be implemented.
This provision, as well as the Memorandum of Understanding between the NRC and FEMA on this subject, make it clear that the regulations contemplate that the submittal by FEMA of " findings and determinations",
whether interim or final, will be based on review of State and local plans.
See Memorandum of Understanding Between Federal Emergency Management Agency and Nuclear Regulatory Commission (MOU), 50 Fed. Reg. 15485 (April 18, 1985). Neither the regulations nor the MOU are drafted so narrowly as to preclude the NRC from reaching its reasonable assurance i finding based on information presented to it, including FEViA's review of a utility-only plan, in view of the requirement, under 10 C.F.R. 50.47(c)(1) to consider a utility-only plan, a FEMA " review of the plans" and "any other information", pursuant to 10 C.F.R. 50.47(a)(2) perforce includes FEMA's review of a utility-only plan and the exercise thereof.
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.,. Any other interpretation would render the interpretation of 10 C.F.R. 50.47(c)(1) given in CLi-83-13 a nullity, and be inconsistent with CLI-86-14, which afforded LILCO an opportunity, through the conduct of -
a FEMA monitored exercise, to show that limitations of the LILCO Picn are not significant. 24 NRC ct 39.
Eoth the Commission and FEMA expressed the view that the review f of a utility-only plan and an exercise of that plan might form the basis for licensing Shoreham. See CLi-86-14, supra and discussion, supra.
See also 44 C.F.R. 350.3(c)(1), cited in LILCO Grief at 14. When FEMA informed the NRC that the planned exercise ccuid not lead to a FEMA finoing, FEMA observed that it believed "such a report would have value in decisions to continue the licensing process or possibly provide a basis on which the NRC ccuid make predictive finding s. " Ltr., Speck to Dircks, October 29, 1985. (As pointed out by Applicant, FEMA's own regulatory scheme limits FEMA findings to the review of State and local planning and ' preparedness. Brief at 13.) The NRC Staff replied that such an exercise would be useful in the licensing process for Shoreham.
Ltr, Dircks to Speck, November 12, 1985. Shortly thereafter, in denying a motion to cancel the exercise, the Commission reiterated this view.
CLl-86-14, supra at 39. Thus, both the NRC and FEMA interpreted the regulations dealing with FEMA's role in the licensing process as providing for FEMA review of a utility-only plan even though such a review would not lead to an overall reasonable assurance finding. The administrative construction by the Commission and FEMA of their own regulations where, as here, such construction is consistent with their plain meaning, is entitled to great weight. See, CUARD v. NRC, 753 F.2d 1144, 1148-49
(D.C. Cir. 1985), citing Deukmejian v. NRC, 751 F.2d 370, 381 (D.C.
Cir. 1984) .
Further support for the position that FEMA review short of a dispositve determination may suffice as a predicate for licensing is found in Commisslors case law. In Southern California Edison Co. (San Onofre ;
Nuclear Generating Station, Units 2 and 3), ALAB-717,17 NRC 346,380 f (1983), and again in Pacific Cas and Electric Company (Diablo Canyon Nuclear Power Plant, Units i and 2), A LAB-776, 19 NRC 1373,1378-79 (1984), the Commission stated that it " expects licensing decisions on emergency preparedness to be made on the basis of the best available information, and not deferred to await FEMA's final word on the matter."
Thus the Commission may rely on FEMA's preliminary views on the state of offsite emergency preparedness based on plans currently available to FEMA. ,l e' . While the foregoing Commission statements were not made with the instant situation in mind, they do provide additional support for the concluslop, applicable here, that it is not the form of the FEMA
. Information and review that counts, but whether "such information permits the Licensing Board to conclude that offsite emergency preparedness provides 'reasonab!c assurance that adequate protective measures can and will be taken in the even of a radiological emergency.'" [ Footnote omitted) . Diablo Canyon, supra, at 1379.
The LILCO Plan has, in fact, been subjected to intensive review by FEMA, resulting in a series of assessments against applicable standards and criteria , as enumerated in the FEMA Post-Exercise Assessment.
FEMA Ex.1, at 2. Thus, the Post-Exercise Assessment is only the latest "information" presented by FEMA as input to the licensing process under
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.t l I 10 C.F.R. 50.47(a)(2) and the MOU. See Union of Concerned . Scientists i I
- v. NRC, 753 F.2d 1437,1450 (1984).
f in sum, under CLI-83-13 and CLi-86-14, as they apply 10 C.F.R. 1 50.47(c)(1), the NRC is obligated to afford an applicant an opportunity to 1 show reasonable assurance that offsite emergency plans are adequate and 1
can be implemented notwithstanding the absence of State and local f government plans or FEMA reviews thereof. To require a FEMA reasonable assurance finding which FEMA's own regulatory scheme l l
provides may only be made on the basis of review of State and local plans would be inconsistent with affording such opportunity. Here, FEMA was requested to, and did, conduct a review and assessment of the implementability of the LILCO Plan. Such a review, under Commission regulations, can form the foundation for an NRC finding of reasonable assurance. As a result, a favorable reasonable assurance finding by FEMA on review of a utility-only plan is not required for licensing, and the lack of stach a finding cannot be a fundamental flaw in the LILCO Plan. This being the case, Contention EX 19 must be rejected.
IV. CONCLUSION The inability of FEMA to make favorable reasonable assurance findings on the implementability of the LILCO Plan does not preclude an NRC finding of reasonable assurance under 10 C.F.R. 50.47(a)(1) that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency at Shoreham. As a result, the lack of a FEMA reasonable assurance finding cannot be a 1
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. fundamental flaw in the Plan, as defined in CLi-86-11. Contention EX 19 {
-is'- without merit.
P. respectfully submitted, c.
A l
eorge E Joh Counsel or N Staff Dated at Bethesda, Maryland this 11th day. of September,1987
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UNITED STATES OF AMERICA . 2 8 P.Z d b
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NUCLEAR REGULATORY-COMMISSION [. g% b%/
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 9 in the Matter of )
)
LONG lSLAND LICHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise) *
(Shoreham Nuclear Power Station, )
Unit 1) )
\ CERTIFICATE OF SERVICE i hereby certify that copies of "NRC STAFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE FEBRUARY 13, 1986 EMERGENCY PLANNING EXERCISE" and "NRC STAFF'S BRIEF ON 1 CONTENTION EX 19" In the above-captioned proceeding have been served on the following by_ deposit in the United States mail, or as indicated by an asterisk, by hand delivery, or as indicated by double asterisks, express mail, this 11th day of September,1987.
John H. Frye 111, Chairman
- Joel Blau, Esq.
Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Flegulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Oscar H. Paris
- Fabian G. Palomino, Esq.
Administrative Judge Special Counsel to the Governor ** l Atomic Safety and Licensing Board Executive Chamber l U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 l l
Frederick J. Shon* Jonathan D. Feinberg, Esq. l Administrative Judge New York State Department of l Atomic Safety and Licensing Board Public Service j U.S. Nuclear Regulatory Commission Three Empire State Plaza i Washington, DC 20555 Albany, NY 12223 )
Philip McIntire W. Taylor Reveley lli, Esq.
Federal Emergency Management Donald P. Irwin, Esq.
Agency Hunton & Williams
- 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 )
New York, NY 10278 Richmond, VA 23212 j l
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" .4' Stephen B. Latham, Esq. ** Herbert H. Brown, Esq.
- T womey, Latham 6 Shea Lawrence Coe Lanpher, Esq.
' Attorney.s at, Law Karla J. Letsche, Esq. !
33 West Second Street Kirkpatrick 6 Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 ,
Board Panel
- U.S. Nuclear Regulatory Commisslor Jay Dunkleberger Washington, DC 20555 New York State Energy Office Agency Building 2 Atomic Safety and Licensing Empire State Plaza q Appeal Board Panel
- Albany, NY 12223
- U.S. Nuclear Regulatory Commission i 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* l Living Office of the Secretary P.O. Box 1355 U.S. Nuclear Regulatory Commission Massapequa, NY 11758 Washington, DC 20555 l
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 Huntin, ton, New York 11743
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George E.gohnson Counsel for NRC Staff l .
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