ML20077S617
| ML20077S617 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/19/1983 |
| From: | Lanpher L KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20077S612 | List: |
| References | |
| ISSUANCES-OL-3, NUDOCS 8309220156 | |
| Download: ML20077S617 (27) | |
Text
..
8 00CMETED 9/ 299tF83 t
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'83 SEP 21 A11:23
.....r,.e..
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)
)
)
SUFFOLK COUNTY MOTION TO COMPEL DISCOVERY FROM FEMA I.
INTRODUCTION Suffolk County has previously moved this Board to compel FEMA to make certain individuals (Messrs. Bragg, Krimm and Johnson) available for depositions.
See suffolk County Motion to Compel Discovery, dated September 7, 1983; supplement to Suffolk County Motion to Compel Discovery, dated September 12, 1983.
By Order dated September 13, 1983, the Board ha:
deferred ruling on that motion until FEMA files a response.
See Order Concerning Suffolk County Motion to Compel Discovery from FEMA, dated September 13, 1983.
The dispute set forth in the County's September 7 Motion, as supplemented on September 12, has been resolved by the County and FEMA insofar as it involved FEMA's refusal to produce certain documents.
The dispute continues to exist concerning the depositions of Messrs. Bragg, Krimm, and Johnson.
The Board will need to resolve that deposition dispute after receipt of the FE!!A 8309220156 830919 PDR ADOCK 05000322 G
- ~ _ ~.
i response, which is due to be filed by close.of business on September'21.
I' Suffolk County regrets to-inform the Board, however, that another discovery dispute has arisen with FEMA.
This new
~
~ dispute involves FEMA's refusal to produce additional documents which were identified for the first time last week during the I
. depositions of Messrs. Kowieski and Sharrocks, each of whom is scheduled to testify for FEMA'in this ASLB proceeding.
To obtain copies of these documents, Suffolk County is filing the 1/
instant motion.- Counsel for FEMA is being provided a copy of this motion today.
The County hopes that this Board can resolve this new dispute at the same time as it rules on the previous dispute with FEMA.
II.
FACTUAL BACKGROUND Under 10 C.F.R.
S 50.47 (a) (2), FEMA's " findings" on the adequacy cn: inadequacy of the LILCO Transition Plan (or i
portions of it) normally constitute a rebuttable presumption 4
4
-1/
The County could.not have filed this motion at an earlier date because it only discovered the existence of the
^
documents described in Part II during last week's deposi-tions.
These documents had not been identified by FEMA in response to the County's previous document request, although' requests 3 and 5 would certainly have covered the documents which are the subject of this motion.
See Suffolk County-Request for Production of Documents by the
,NRC Staff and FEMA, dated ~ August 12, 1983; September 8, 1983 letter from FEMA Counsel, Stewart Glass, to County Counsel, i
K. J. Letsche, enclosing FEMA's responses to County's l
August 12 request.
The County's request and FEMA's response i
are Exhibits 1 and 2 hereto, respectively.
If FEMA had previously identified these documents, the County could have included them in its September 12 Supplement to suffolk County Motion to Compel Discovery.
FEMA's counsel has indicated that he intends to file a corrected Response, but the: County has not yet received that document.
s
regarding the adequacy / inadequacy issue.
Accordingly, the FEMA findings constitute a central aspect of any emergency
^
planning proceeding.
In order to be in a position to rebut (or support) those findings, it is essential for parties to understand the processes by which these findings are reached.-2/
This is particularly important in the instant proceeding since FEMA has not followed its normal "350" review process but instead has (at least to date) utilized an abbreviated review process which relies primarily on Argonne National Laboratory.
Certain documents are important to an assessment of the FEMA " findings" process in the Shoreham proceeding.
- First, there is Mr. Krimm's June 23 memorandum to the NRC (Exhibit 3 hereto), which attempts to summarize (as of June 1983) FEMA's view of the adequacy / inadequacy of the LILCO Plan.
- Second, there is Mr. Bragg's August 29 letter to the NRC (Exhibit 4 hereto), which provides additional data to attempt to clarify the earlier Krimm memorandum.
These documents are extremely important because they set forth FEMA's position regarding steps to be taken to obtain a favorable FEMA finding on the
_LILCO Plan.
Suffolk County has pursued discovery in an effort to li i
understand fully the FEMA findings process in the context of 2/
For example, if the FEMA finding were based on extremely limited review by FEMA, its finding would likely be easier to rebut than if a more detailed review were undertaken.
To gain information pertinent to such factors, detailed discovery into the FEMA process is essential.
_. _ = _
l' this case.
This discovery effort has enabled the County to identify the following materials which relate directly to the documents which are Exhibits 3 and 4 hereto:
(1)
Mr. Sharrocks, who has been identified as a potential FEMA witness before the ASLB, prepared (along with a Ms. Lawless) a draft of the memorandum attached as Exhibit 3.
This draft was given to Mr. Johnson and went through a revision process (including a second draft) prior to being 3/
3 signed by Mr. Krimm.
See Sharrocks deposition, pp. 41-47.~
As noted earlier (see note 1), FEMA had not previously identified these documents and, at the deposition, FEMA counsel refused to provide the County with copies.
Id. at 47-48.
FEMA counsel stated that he would permit Mr. Sharrocks to answer questions regarding differences between the draft and the final version but without reference to the documents which he did not have with him, the witness could not recall "what the differences were.
Id. at 49-50.
(2)
After receipt of Mr. Dircks' July 22 letter seeking clarification of Mr. Krimm's June 23 memorandum, a group of FEMA personnel in Region 2, including Mr. Kowieski who has also been identified as a probable FEMA witness in this ASLB 3/
The transcript of Mr. Sharrock's deposition is attached as Exhibit 5 and that of Mr. Kowieski's deposition is attached as Exhibit 6.
[To avoid unnecessary duplication, i
Exhibits 5 and 6 are attached only to one copy going to the Board and to the copy going to docketing and service.)
The County includes these exhibits in the event the Board desires to get a more detailed " feel" for these discovery disputes.
These depositions also provide more data on the roles played by Messrs. Bragg, Krimm and Johnson in the review of the LILCO Plan.
proceeding, had discussions concerning a proper response to Mr. Dircks.
The group apparently " felt" that "it is necessary to have local or at least state cooperation to have an effective emergency response plan."
Kowieski deposition, p.
23.
Mr. Kowieski testified at his deposition:
'e raised' questions as to how this would W
be feasible or possible for the utility to respond to radiologiccl emergency, under what authority they would control evacuated areas, and obviously, other matters where state or local participation would be required.
Id. at 23.
So we felt we were not certain how LILCO would coordinate the emergency response effort with the state in terms of decision-making, in terms of accident assessment, in terms of overall response.
Id,. at 24.
Jur. Petrone, the FEMA Region 2-director who had.partici-pated in these discussions, then prepared a memorandum (dated about August 18) for Mr. Bragg and Mr. Guiffrida, the FEMA director.
The Petrone memroandum (of which Mr. Kowieski had a copy at the deposition) was on the subject of FEMA's response to Mr. Dircks.
Id. at 24-25.
FEMA counsel refused to permit the witness to answer questions regarding the Region 2 views and also refused to provide the County with a copy of the memorandum.
Id,. at 25-32.
(3)
Mr. Johnson asked Mr. Sharrocks to prepare a draft FEMA response to the Dircks letter of July 22.
Mr. Johnson gave Mr. Sharrocks written instructions regarding this response.
FEMA counsel refused to produce a copy of the Johnson instructions.
Sharrocks deposition, pp. 54-56.
Further, as requested by Mr. Johnson, Mr. Sharrocks did prepare a draft response to Mr. Dircks' letter, which draft was given to Mr. Johnson.
Id.
at 56-57.
The draft differs from the final Bragg letter which
.is Exhibit 4 hereto.
Id. at 69.
M ?. Sharrocks is not certain whether the draft still exists and FEMA counsel declined to state whether the draft would be provided if found.
Id. at 57-58, 69.
III.
DISCUSSION Suffolk County moves this Board for an order compelling FEMA to produce the documents it has withheld and to permit the deponents to answer ques tions regarding them.
As noted previously, FEMA's finding process is a crucial element in this.
emergency planning proceeding.
The County is entitled to get the details of that proc ess -- including contrary views if any exist.
For example, in Exhibit 4 hereto, Mr. Bragg makes state-ments'regarding what needs to be done for a fully positive FEMA finding on the LILCO Plan.
Exhibit 4 appears possibly to be in conflict with statements of the Region 2 personnel (se'e Kowieski deposition, pp'. 23-24, quoted earlier) regarding how LILCO could have overall effective emergency response without governmental participation.
These Region 2 views presumably are contained in Mr. Petrone's memorandum.
Although FEMA counsel has stated previously to the County that Mr.-Bragg has
had limited participation in this matter, Mr. Bragg's letter (Exhibit 4) has obvious direct bearing on the FEMA findings.
Yet, FEMA counsel refuses to permit Mr. Bragg'to be deposed or to produce the materials (such as Mr. Petrone's memorandum or Mr. Sharrocks' draft letter) which presumably form the basis for Mr. Bragg's letter to Mr. Dircks.
FEMA counsel bases his refusal to produce the documents on the premise that these are "predecisional" materials and the assertion that revealing these materials would have a chilling effect on FEMA decision-making.
- See, e.g., Kowieski deposition,.p. 26; Sharrocks deposition, pp. 47-48, 56.
With due respect to the FEMA decision-making process, the County submits that the FEMA position is simply incorrect.
In a normal agency decision-making process, there is a qualified (but not absolute) privilege to protect "against disclosure of intra-governmental documents containing advisory opinion recommendations and deliberations See United States
- v. Capitol Serv., Inc. 89 F.R.D.
578, 582 (E.D. Wis. 1981).
When the privilege is asserted, the government has the burden of proving that it is entitled to the privilege and the privilege can be overcome by a showing of need.
Id. at 582-83.
i First, in this case, FEMA counsel has not properly asserted the privilege, having made only bald assertions of a " chilling"
-g-effect.-4/ More important, in the circumstances of this case, the privilege simply has no basis.
A central issue in this proceeding -- indeed a potential rebuttable presumption -- is the FEMA finding of adequacy / inadequacy of the LILCO Plan.
To ba in a position to test the evidentiary status given to FEMA's findings, a party must have the opportunity to test the bases
.for those FEMA findings and views.
That is precisely what the County is attempting to do.
To accept FEMA's position on the materials at issue here, one must also then accept the view that a party-has no right to inquire into the judgments and considerations which form the basis for the FEMA findings.
However, FEMA's findings, in essence, constitute expert testimony and it is hornbook law in NRC proceedings that a party may seek the bases for the positions taken and judgments made by expert witnesses. -Accord-
'ingly, since FEMA's findings are being made for and form the 4/
To properly assert the privilege, three prerequisites must be met:
First, the privilege' claim must be made by the head of the department which has control over the, material after' actual
. personal reviewand consideration of the materials.
Second, the. claim must specifically describe and. designate the documents sought to be withheld.
- Third, Y?
the' claim must state the precise and certain reasons'for preserving the con-fidentiality of the communication.
- /
/
~
/
~
~89 F.R.D. at 583.
~
s
.S
,. ~
_9 bases of expert testimony, the County is proceeding properly in pursuing discovery to find the bases for FEMA's views.
In view of the foregoing, Suffolk County moves this Board to order FEMA:
(1)
To produce for County review the documents which have been withheld by FEMA and which are described in Section II of this Memorandum; (2)
To permit FEMA witnesses to answer questions regarding these documents; and (3)
To produce for County inspection and copying any other documents which FEMA has withheld on the basis of this asserted privilege.
Respectfully submitted, David J. Gilmartin Patricia A. Dempsey Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788
~ 4%/newn v 2 ^-
Herbert H.
Brown Lawrence Coe Lanpher Karla J.
Letsche KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 Attorneys for Suffolk County September 19, 1983
EXHIBIT 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
^
Before the Atomic Safety and Licensing Board I
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)-
Docket No. 50-322
)
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
SUFFOLK COUNTY REQUEST FOR PRODUCTION OF DOCUMENTS BY THE NRC STAFF AND FEMA Pursuant to 10 CFR 552.741 and 2.744, the NRC Staff and FEMA are reqdested by Suffolk County to produc e for inspection and copying, at the offices of Kirkpat.ick, Lockhart, Hill, Christopher & Phillips, the documents specified below that are within the_ possession, custody, or control of the NRC Staff or FEMA.
Part I of this Request is directed to the NRC Staff, Part II is directed to FEMA.
Definitions and Instructions For Document Production The definitions and instructions applicable to these Re-quests are.the same as those set forth_in Suffolk County Interrogatories to the NRC Staff and FEMA, filed simultaneously herewith, and hereby incor~porated by reference, except that subparts L through P, and W, of such Definitions and Instructions are not applicable to these Requests.
l -
r
.-,--,-.....--.r--
,--..---..----.-r..
,-,-.,-,._,,,,.---..,~.,,,---e--.,,
t Requests Part I -- NRC Staff 1.
Provide a resume or statement of professional qualifica-tions for John Sears.
2.
Provide copies of all correspondence or documents reflecting communications between representatives of the Argonne National Laboratory ("Argonne") and the NRC regarding the LILCO Transition Plan.
3.
Provide copies of all documents concerning the NRC Staff's definition of the scope of work for review of the June, 1983 PRA for the Shoreham plant.
4, Provide copies of all documents concerning the prepara-tion, analysis or review of the LILCO T2 ansition Plan by the NRC, or contractors or subcontracto::s including, but not limited to, final versions and all (! rafts of documents prepared by Thomas Urbanik or anyone associated with Thomas Urbanik.
5.
Provide copies of all correspondence or other documents exchanged by and between Thomas Urbanik and any member of the NRC Staff, including but not limited to, John Sears.
(
6.
Provide copies of all documents describing defining, or in any way concerning th'e NRC Staff evaluation, or review of :
the LILCO Transition. Plan (See August 5, 1983 response to question 3.)
Provide copies of all evaluations, reviews and analyses of 7.
the adequacy, implementability, or effectiveness of any aspect of the LILCO Transition Plan or other offsite emer-gency planning for Shoreham, performed by any consultants or contractors retained by the NRC including, but not lim-ited to, Battelle.
8.
Provide copies of all documents of any sort concerning. any aspect of the LILCO Transition Plan in the possession of the NRC, consultants or contractors to the NRC, or consul-tants or" subcontractors to the NRC's consultants or con-tractors.
9.
Provide a copy of Mr. Urbanik's contract with Batelle.
10.
Provide copies of the final report, supporting documents and analyses, supporting data, and any other documentation relating to Wilbur Smith and Associates, An Evacuation Time Assessment of Nine Nuclear Power Plants Emergency Planning Zones, Program Report, Contract No. EMW-C-0258, June, 1980,'vol. IX Shoreham Nuclear Power Plant Evacua-tion Time Assessment.; If not described in the requested.
e
___.___m_.
materials, please describe the methodology by which the evaluation was conducted.
(Mr. Bordenick's letter of August 5,1983 did not respond to this request. )
Part II -- FEMA 1.
Provide copies of all correspondence or documents reflecting communications between representatives of the Argonne National Laboratory ("Argonne") and FEMA regarding
~,;
the LILCO Transi, tion Plan.
2.
Provide copies of all reports, notes, analyses, memoranda, and all other such documents, whether in draft or final form, produced or relied upon by any Argonne personnel or subcontractors of Argonne and concerning the LILCO Transi-tion Plan or the review thereof by Argonne or its subcon-tractors.
3.
Provide copies of all reports, notes, analyses, memoranda, and all other such documents, whether in draft or final form, produced or relied upon by FEMA personn.el or con-tractors of FEMA and concerning the LILCO Transition Plan, l
FEMA's review of the Plan, or Argonne's review of the Plan.
4.
Provide copies of all documents concernin the LILCO Tran-
[
sition Plan produced by any consultants or contractors of l
FEMA other than Argonne.
4-l y---
e,,
-.-3,y,,
. - +.,---w,-,,.-,-ywcwe.r-,
.,-,-e.
..-,----e.--we-e-.i.-,.
m.,,,,
,.-%w-, - -e.
ww,,,
w-w e, w.y-.,
e 5.
Provide copies of all documents concerning the prepara-tion, analysis or review of th,e'LILCO Transition Plan by FEMA or Argonne or contractors or subcontractors to either of the above, including, but not limited to, final ver-sions and all drafts of documents prepared by Thomas
~
Urbanik or anyone associated with Thomas Urbanik.
6.
Provide resumes or statements of professional qualifica-tions for the following individuals:
FEMA (a)
Roger B. Kowieski (b)
Fred Sharrocks Argonne National Laboratory (c)
Edward Tanzman (d)
Chris Saricks (e)
Kenneth L'erner (f)
Phyllis Beckerman (g)
James Opelka 7.
Provide copies of all prior testimony, concerning emergen-
~
cy planning, provided in any administrative, legislative or judicial forum (including deposition testimony) by any of the persons listed in question 6 above.
8.
Provide copies of all correspondence or documents reflecting communications between LILCO and FEMA concern-ing the LILCO Transition Plan.
5-e
,.m.
.y.
n-
,m
,n-._,
,9.
Provide copies of all documents concerning drills or exer-cises of an offsite emer.gency; plan for Shoreham.
10.
Provide copies of all documents concerning any review, by or on behalf of FEMA, of Revision 1 of the LILCO Transi-tion Plan.
11.
Provide copies of all documents analyzing, reviewing or concerning the authority of LILCO, or any private utility or corporation to implement all or part of the LILCO Tran-sition Plan or any offsite emergen,cy plan.
Respectfully submitted, Dated:
August 12, 1983 David J. Gilmartin Washington, D.C.
Patricia A.
Dempsey Suffolk County Department of Law Veterans Memorial Highway Bauppauge,-New York 11788 M r AJA.
Bersbert B.' Brown
~
Lawrence Coe Lanpher Karla J.
Letsche John E.
Birkenheier KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W.,
Suite 800 Washington,.D.C.
20036 Attorneys for Suffolk County i
EXHIBIT 2
.t Federal Emergency Management Agency w
5 Region II 26 Federal Plaza New York, New York 10278 8 SEP 1983 Karla Letsche, Esq.
Kirkpatrick, Lockhart, Hill Christopher & Phillips 8th Floor 1900 M.
- Street, N.W.
Washington, D.C.
20036
Dear Mr. Letsche:
Enclosed please find FEMA's response to your document request.
If you have any questions, please feel free to contact me on (212) 264-8980.
Very truly yours, fMW L<4 & M
[ [ Regional Counsel Stewart M.
Glass
&p l
l Ens.
I t
i i
I,7 v s
Page PART II - FDR 1.
Provide copies of all correspondence or h= ants reflecting em-mications between representatives of the Argonne National laboratory ("Argonne") and FDR regarding the LIIDO Transition Plan.
Response 1.
A review of the FDR and Argonne files produced the following docments reflect-ing ce==wiications between Argonne and FDR.
(1) June 13, 1983 Tanzman to Johnson - Draft Iagal Moorands Iagal Issues presented by Shoreh m REP Plans (2) June 13, 1983 Wolsko to Johnson - Draft review of Five alternative offsite energency response plans for Shoreham (3) June 14,1983 heham=n to Johnson - List of deficiencies / Questions
'(4) June 16,1983 Tanzman to Johnson - Description of Review Process (5) June 16,1983 Tanzman to Johnson - revised review of T. Tim Transition module of Shoreh m Offsite Radiological Emergency Response Plan.
(June 17,1983).
(6) June 22, 1983 hh-- => to Johnson - revised review of I. Tim Transition module of Shoreham Offsite Radiological Bnergency Response Plan (June 22,1983).
(7) July 1,1983 - Surles to Sharrocks - element by element review of 4 REP mminle plans (cover letter only)
A M= chad please find item #4.
FDR asserts that the other above captioned items are priviledged. FE% is presently reviewing these items to determine if additional items will be made available under the informal discovey process.
2.
Provide copies of all reports, notes, analyses, memoranda, and all other such h = ants, d ether in draft or final form, produced or relied upon by any Argonne personnel or subcontractors of Argonne and concerning.the T. Tim Transition Plan or the review thereof Argonne or its subcontractors.
I I
Response 2.
Argonne relied on the following haants in conducting its review of the T. Tim / Transition Plan.
(1) NUREG 0654/FD R REP 1-Rev. 1 (2) LIIID Transition Plan and T. Tim's Memorands of Service of Supplemental Bnergency Planning Information (3) 44 CFR 350 L
(4) 10 CFR 50 (5) NRC/FH R Hemorands of Understanding l
(6) AAA Map of New York City and vicinity including Iong Island (7) June 1,1983 Memorands for Edward Jordan to Richard W. Krim (8) Mano of 6/13/83 - to Wingo/Hepler fra Gary Johnson l
z s
Page,
i Itans iP 1 through 5 are already in the possession of all parties and are public dm _= ants readily available.
Response 3.
Not presently available.
4.
Provide copies of all docunents concerning the LIILO Transition Plan pro-duced by any consultants or contractors of FDR other than Argonne.
Resnonse 4._
5.
Provide copies of all d~w= ants concerning the preparation, analysis on review of the LIIOD Transition Plan by MR or Argonne's or contractors or subcontractors to either of the above, including, bur not limited to, final versions and all drafts of d~,= ants prepared by Thanas Urbanik or anyone associate with Thomas Urbanik.
~
Response 5.
Neither, Thomas Urbanik or anyone associated with Mr. Urbanik was involved in m R's review of the LIIDO Transition Plan. The primary document used as NUREG-0654 M%-REP-1, Revision 1.
6.
Provide resunes or statenents of professional qualifications for the following individuals:
mR (a) Roger B. Kowieski s
(b) Frederick Sharrocks A@u.e National Laboratory l
(a) Ederd Tananan l
(b) Chris Saricks (c) Kenneth Lerner (d) Physis Beckerman s
(e) James Opelka I'
Response 6.
The professional Qualifications of the above named individuals is attached.
Provide copies of all prior testimony, concerning emergency planning, l
7.
provided in any administrative, legislative or judicial forun (including l
deposition testimony) by any of the persons listed in question 6 above.
l I
l I
.. ~. _ _ _ _ -, - -. _ _ _ _ _ -.
Page.
Response 7.
Fred Sharrocks and Edward Tanzman have not testified on any matter concernirg the above subject areas. Roger Kowieski was a witness before the ASLB in Indian Point. The transcripts of his testimony as well as the pre-filed testimony in that nearing is attached.
8.
Provide copies of all correspondence or h=mts reflecting ceumunications between LIIDO and FDR concerning the LIIID Transition Plan, Response 8.
The armchad correspondence or h_=mts reflect emmications between LIIID and Fl}R concerning the LIIID. Transition Plan.
-1.
LIlCD furnished copies of the Transition Plan
((and the four other plans) to FDR in early June 1983.
2.
FDR representatives met with LILOO representatives on June 16, 1983, subsequent to FDR's meeting with Suffolk County. An attendance list is annahad. No minutes of this meeting were developed.
3.
FDR received a copy of " Revision I" to the Transition Plan that was furnished Mr. Denton of the NRC. A copy of the July 28,1983, letter is attached.
9.
Provide copies of all dm=mts coneambw drills or exercises of an offsite emergency plan for Shoreham.
Response 9.
(1) August 29, 1983 Bragg to Dircks - Response to letter of July 22, 1983 from Dircks.
I
- 10. Provide of all doctnents concerning any review, by or on behalf of FEt%,
Revision I of the LIIID Transition Plan.
Response 10.
(1) August 9,1983 - Johnson to Wingo - LIIDO Revisions to Plan as submitted through ASLB.
- 11. Provide copies of all doctments analyzing, reviewing or concerning the authority of LIIDO, or any private utility or corporation to implement all or part of the LIIDO Transition Plan or any offsite emergency plan.
Response 11.
(1) June 13, 1983 - Tanzman to Johnson (Legal Issues presented by Shoreham REP Plans) - subject to determination of privilege.
i
UNIMD STA GS GCVERNMENT 2.w L
SPECIAL J
Use tmet, anformal tanguage.
Conserve soeca.
RECOVER ( eoder Copy. retum one cooy.
CAM. WE33M34 mouT'paq svueCL
, CRIGINATCA SIGMA A' 2D
- -. ~ r
.k A
4 Y
Vf.4Y A
t m MA~
4., a s w
~
i.1 & tc.,.
p 1,.-
-d 6-N A 21s
.w ~u.ed + u.L (w. LuA q L, & )
u>.e a w
f%a Wc.4 SQw-v &
" y ) S u.2pd m w u.<.n(pu L c-u l< < v n ut
/1 ] n d u w -s u d YY "a pu A - -san Y
jd.Lt s Y//14._11o r f r' ause >
/
~~
mr V
'.t l.a c w. 4 4 e.u u-u a c
,/ s i 4 G S % k Z s-u. f a.s-n D
.mw Aw,Auruyq
+nd h d
. (mW
, e m m' 3 tr4 4 u~__J c.s.i,.,6.a.a.c/ h a + 3 a W, e
+-
eff wun.
0 w lLLv.2du / /.:
n,ek a >
andJ.A s,. m., d,~
do.
OVb lef,t7.7 % l~.7,/u k.. f -
,~:
u M us h a./ u. w. d
,x. b Y
jso w. < usa sy M n m
~
/p. d /w pux,44 j ~ " ~"
-y,.4.RGON N E jg NATION AL LAEEiORATORY INTR A. LABORATORY MEMO June 16, 1983 TO:
G. Johnson, W.A
-p FFOM:
E. Tanz=an, ANL (.
/,
SUBJEC'":
Description of Process of Develocine Shoreham Plan Review
(
Per your request to Phyllis Becher=an yesterday, please find attached a d af discussion of the ordinary TEMA plan review and approval process as contras ted with the procedure followed f or the Shorehan REP plans.
I did not I
put this in any particular f ormat (e.g., memorandu=, letter, etc.) because I de not know how you intend to use this.
Of course, I shall be available to answer any questions or make any necessary revisions.
d / sir Escl 1
l i
l l
l l
l.
~
I 1
I r
I e
4 l
e k
k i
C f
.s..:......,
L_
e d
ab 6
PROCEDURE FOLLOWID DURINC REVIEW OF SECREEA.". NUCLEAR PO'.,*ER
{
STATION LOCAL OFFSITE ?.AD10 LOGICAL EMERCENCY RESPONSE Pl.AN 1.
IhFRODUCTION The FEMA review of the Shoreham Nuclear Power Station (SNPS) Local Offsite Radiological Emergency Response Plan was not typical of TEMA reviews cf such radiological emergency preparedness plans, and consequently is not as t hor ough.
The extraordinary nat.zre of the request to evaluate this plan, as l
vell as the very shor: time available for review, depar: from the usual review and evaluation process defined in FEMA's opera:ive regulations.
This i
discussion explains the ordinary plan review and approval process and co= pares the method by which the Shoreham plan was evaluated.
2.
FEMA REVIEW AND APPROVAL PROCESS TEMA ordinarily reviews radiological emergency preparednes s plans pursuan: to its opera:ive regula:icas, which are se for:h a: A7 Fed. Reg. 36, 356 (19E2)( o be codifiad a: " C.F.R.
7:. 330)(; reposed August 19, 1982).
Tnese ~ proposed regulations es:ablish a st ep-by-s t ep review procedure unose basic intent is to arrive at-a final deter =ina: ion on the adequacy of State and local plans and preparedness "to protec: the public heal:h and safety by providing reas onable as surance that appropriate protective measures can and vill be taken off site in the event of a radiological emergency.'
(Id. at 36, 390; to be codified at 44 C.F.R. pt. 350.5(b)).
Inis procedure involves =any internal checks and balances, as well as censiderable public input.
Two basic input s unde rly the. FEMA review process embodied in the se proposed regula: ions - the plan review and the exercise evaluation. The plan review is initiated by a for=al request to do so by the Governor of the Sta:e designee ).
The plan is in which the nuclear facili:y is located (or a sub=1::ed to all me bers of the relevant Regional Assistance Co ittee (RAC) for their co==ents.
A public hea ring is he.ld to acquaint members of the l
public vi:h the centen:s cf the pla n, to answer ques:icus, and to r eceive I
suggestions and co= men:s.
During the course of the review, the m A Regional Director may sugges: changes to the Gove rno r, and the Governor may amend the
[
plan.
Co=pletion of an exercise is a pre-recuisite to approval. The exercise l
=us: include all appropriate govern =ents.
1: is observed by FIMA cfficials, B
as well as RAC me:bers.
I: cul=inates in a cri tiq ue, at which deficiencies discovered by the exe r cise observers are presented to the participants.
A g
regula r schedule of subsequent exer ci se s, as well as any necessary remedial I
exercises, is intended to assure a continuing ability to i=plemen: :he plan.
F The FEMA As so ciat e Director for Sta:e and Local Progracs does not
)
consider-the adequacy of a plan un:il the Regional Director has reviewed the g
plan, held an exe r ci se, convened a public he aring, and reco= mended its approval or disapproval. Upon receipt cf such a recon =endation, the Associate
(
Director solici:s the co=ments of membe rs of t he Federal Radiological y
Prepsredness Coordina:ing Co==::ee (FRFCC), conducts a review, and takes his y
a E
5 k
P 4
q.
W g
P n
tf o r he r deter =ina:1on of adequacy, only af te r this extensive review process coes
- .hA inf or= the NRC and the Governor of its decision.
3.
PROCEDURE 70LLOVE3 DURING REVIEW OF SEOREEAM NUClIAR POWT.R STATION LOCAL g
OT? SITE FJ.DIOLOGICAL EMERCENCY RESPONSE PLAN p
k i
The procedure m.A followed during 1:s review of the SNPS Local Off site h
Radiological Eme rgency Response Plan was qui:e -dif feren: than the ordinary 65 pr oce s s. On June 1,1983, the Ass:.stant Associate Director cf the FEMA Office g
of Eatural and Tectriological Ezzards was requested by me=orandu= f:es the g
Director of the NRC Division of Emergency Preparedness and Engineering
'y Rcsponse to conduct a review of this plan pursuant to se ction II(L) of the g
M:morandum of Understanding Be:veen NRC and FEMA Reh ting to Radiological j
E=ergency Planning and Prepar e c=ess, 45 Fed. Reg. 82,713 (1980).
This
{
distinct review procedure pe: ::i:s NRC to request T.A, - notvithstanding its g
ordina y review methods ex; hined
- above, to provide
" findings and l
f dete r=inations on the current status of emergency preparedness around 8
F pa rticular sit e s... ".
{ !
By 1:s nature, :nis reviev is rensiderably more brf ef thin TEMA's usual g
z;;;ca ch.
In this ins:ance, only fren June 1 until June "3 vas per=itted for Q
~
- ne review.
The ph
- a: vas sub=i::ed was written by the license applican:
p and f orwarded by the NEC,.ra:he: :han being the product of local and State d~
planning with a review recuested by the Gove rnor.
Neither a public hearing nor an exer cise has been held.
Ne.ither the relevan: RAC nor the TR?CC was censul:ed.
The five reviewers were no: pe =itted to sr.ke suggestions to the phn autho rs to i=pr ove :he plan, nor otherwise discuss the plan with them.
L:
O ne plan was reviewed as if it was
- a. final product, vi:h no allevances made l
f or incompleteness. Thus, the review of this plan has been less thorough, was 4
cceducted vich fever checks and balances on its accuracy than the ordinary TEMA plan review process, and did not include an exercise as a t est for its k
cacability actually to be i=plemented.
{
E G6 4
CONCLUSICN r
0 The TEMA reviev cf t he Shcreham Nucle ar Power 5:ation Radiological
't Energency Local Off site Radiological Energency Response Plan was conducted in f
an extraordinary fashion, pursuant :o a recuest from the NRC, ratber than the p
Governor of the af f e ct ed Sta:e.
Whereas the process mandated in FEMA's g
operative regulations involves se Nral levels of checks and balances, a public
}'
hearing, and an exer cise, this review si= ply is the opinion of 1:s five r eviewers, without benef it of public ce==ent or the acid test of a ec ple te exer ci se.
A's such, it =ust be used in a canner consistent with how it was
$g.
a cco=;11 s he d.
5 eb eh n
3u
)YUF
ja O
O Exa181T 3 f 4 i Federal Emergency Management Agency
- "* "l Wishington, D.C. 20472 g
JUN 2 3 tgg MEMORANDIM FOR:
Edward L. JordSt Director, Division of Emergency Preparedness and Engineering Response Office of Inspection and Enforcement U.S. Nucle - R tlatory Commission FROM:
Richard W. Erima Assistant Associate Director Office of Natural and Technological Hazards
SUBJECT:
Pindings on the LIIr0 Transition Plan As Requested by the NRC as Part of NRC Licensing of the Shoreham Nuclear Power Station l
l_.
l This is in response to your June 1,1983, memorandum in which you invoked Section II.4 of the November 1,1980, NRC/FIMA Menorandum of Understanding i
by requesting the Federal Emergency Management Agency (FEMA) to provide the Nuclear Regulatory Commission (NRC) with findinge and determinations as to whether the LILCO-County plan and/or the interim plans for the Shoreham Nuclear Station are adequate and capable of implementation.
As l'
a result of an Atomic Safety and Licensing Board (ASLB) order, your subsequent memorandum of June 17, 1983, requested that FEMA provide findings and determinations on the LIICO Trancition Plan as a first priority.
This Plan, developed wholly by LILCO, proposes to use LILCO l
Personnel to carry out the offsite preparedness aspects of the plan (to include the total directio= and control function) in the case of an emergency involving an accident at the Shoreham Nuclear Power Station.
l
(
First, we would like to indicate how the review process for the LILCO Transition Plan differed from the usual "350" approval process.
As you know, under normal processing, the plan review is initiated by a formal request by the Governor of the State in which the nuclear f =e414 ty is
% located, after he/she has received and analyzed plans submitted by the local gover==ents in the emergency pl=
- g zone surrounding the f aci~.ity.
The request includes the State plan which is site-specific to the applicable power f acility, approprince local plans and a scacement by the Governor that the State plan, together with the local plans, are adequate to protect public health and safety of the citizens living l
within the emergency planning zones for the nuclear power f acilities included in the submission by providing reasonable assurance that appropriate protective measures can and will be taken in the event of a radiological emergency for the site.
The FEMA processing of a Governor's submittal includes extensive review by the relevant Regional Assistance Committee (RAC), a public meeting and most importantly, a drill or exercise, including -
all appropriate gover=ments, to test whether the plan can be impleme= red.
l
,_-,...w,.
__.._,,,_,__,,,.____-_.,_,,_,,,,.___,_.,.___,_y
-...,,._,,,,,,,,___.,,.,_,,._m.,
In contrast to the process de cribed above, the LILCO Transition Plan was submitted, without Suffolk County or New York State endorsement, directly to FDfA Headquarters through the NRC for review under the terns of the NRC/FDfA Memorandum of Understanding. Because the Plan was not submitted -
under 44 CFR 350, a RAC review was not undertakan. For this reason, coupled with,the fact that the NRC needed a FEMA finding within three weeks, it was necessary to obtain the support of Argonne National Laboratories to assist and perform a technical review of the plan against the 16 planning standards and criteria (A-P) listed in NUREG-0654/FDfA-REP-1, Rev. 1.
PDfA Headquarters, assisted by FEMA's Region II Regional Director and staff, directed this technical review.
FEMA finds that the LILCO Transition Plan has 34 inadequacies in terms of NUREG-0654/FDfA-REP-1, Rev.1.
Our analysis relating these inadequacies to the various criteria is attached.
There are two preconditions, identified below, that need to be met for a PEMA finding as to whether the plan is capable of being implemented and whether LILCO has the ability to implement the plan.
(1) A determination of whether LIICO has the appropriate legal authority to assume management and implementatio= of an offsite emergsney response plan.
~
(2) A demonstration through a full-scale exercise that LIIf0 has the ability to implement an offsite plan that' has been found to be adequate.
FEMA will continue to review the other plans associated with your June 1 request in anticipation that the ASLB will requir.e FEMA findings on these plans at a later date.
Attachment g
As Stated 1
I l
Im e
-,-,---.,..,,.,n-..-,.-
,,--,,n,--,----.w--,-.--,,
,-,,,,,,--,-.--...,,.-,--m,---
--,--e,--,-
[
-, /.
O3 o
EXHIBIT 4
,,f,',"lh Federal Emergency Management Agency
'f.
g 3
Washington, D.C. 20472 s
s' August 29, 1983 Mr. William J. Dircks.
Executive Director for Operations U.S. Nuclear Regulatory Com:cission Washington, D.C.
20555
Dear Mr. Direks:
This is in response to your. July 22, 1983, letter requesting the Federal Emergency Management Agency (FEMA) to provide additional information concerning our report to the Nuclear Regulatory Commission (NRC) of June 23, 1983, entitled " Findings on the LILCO Transition Plan as requested by the NRC as Part of NRC Licensing of the Shoreham Nuclear Power Station."
1 our position Generally, for any non-governmental plan submitted to us for review, will be:
The plan could be considered adequate, if there are no deficiencies 1.
when the plan is reviewed against the NUREG-0654/ FEMA-REP-1 standards.
The plan could be implemented, if the organitation or persons 2.
required to implement planned actions have the authority to do so.
FEMA, in its advisory role to NRC, could make a finding that 3.
there is reasonable assurance that offsite preparedness is adequate, if a full scale exercise demonstrates that, with the authority and resources, the plan can be carried out effectively.
Specifically with respect to our June 23 report:
If the NRC requests, we will review the revised LILCO Transition the standards and criteria in NUREG-0654/ FEMA-REP-1, o
Plan against and if we find that the 34 previously identified deficiencies are corrected, we could certify to the adequacy of the plan.
If LILCO is given the authority to perform response roles of Suff olk County personnel, and there is an exercise in which o
this is demonstrated, FEMA, in its advisory role to the NRC, finding that offsite preparedness is adequate to protect could,eshe a the public living in the vicinity of the Shoreham plant.
because of the short time that NRC allowed
- point, With regard to the first for the FEMA review of the LILCO Transition Plan we ha,d to modify our If NRC
,p
~
use the Regional Assistance Con =ittee (RAC).
procedure and not
~
requests a further review of the LILCO Plan, and there is adequate time, we would want to use the services of the RAC.
~..
r.
O o
y.
I also want to emphasize again that there is a real need to resolve the',
issue of LILCO's legal authority to act in accordance with the planThis problem is ]
either in an exercise or during an actual emergency.
one that can be resolved by the State of New York.
FEMA's preference, in any case, is to gain the active participation of State and local governments in the emergency planning and preparedness f
Perhaps the diesel generator problem at process related to Shoreham.
Shoreham will provide more time for the' State and Suffolk County to work out the offsite emergency pr'eparedness problem.
This should clarify TEMA's views.
Please do not hesitate to contact me if I can be of further assistance.
Sincer
/
W f //
frey S. Bragg Executive Deputy Director i
s W
e b
.N t
. ~
4 g.
t e.
e*
_ _ _ _ _ _ _ _ _ _ _ __