ML20086M816
| ML20086M816 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/14/1984 |
| From: | Falzone R HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL-3, NUDOCS 8402170100 | |
| Download: ML20086M816 (13) | |
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0 00LKETED U%RC LILg, gaf3f):23,1984 UNITED STATES OF AMERICAT.Q NUCLEARREGULATORYCOMMISSION[jdi'9.$f/
Before the Atomic Safety and Licensing Board In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning (Shoreham Nuclear Power Station, ) Proceeding)
Unit 1) )
MEMORANDUM OF LAW IN SUPPORT OF LILCO'S McTIONS FOR
SUMMARY
DISPOSITION ON PHASE II EMERGENCY PLANNING CONTENTIONS 45, 46, AND 49 LILCO submits this Memorandum of Law to supplement its motions for summary disposition of Phase II emergency plan-ning Contentions 45, 46, and 49. In addition to the argu-ments in those summary disposition motions,'LILCO requests (1) that the Board resolve Contentions 45, 46, and 49 summa-rily in LILCO's favor because, as a matter of law, an NRC licensing proceeding may not be used to litigate the adequa-cy of the Department of Energy (DOE) Radiological Assistance Program (RAP) and (2) that, if this Board should deny summa-ry disposition of Contentions 45, 46, and 49, it require the intervenors to file testimony in support of their allega-tions of inadequacies in'the DOE-RAP program before LILCO is required to file its testi.nony on these issues.
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I. An NRC Licensing Proceeding May Not Be Used to Litigate the Adequacy of the DOE-RAP Program Contentions 45, 46, and 49 should be resolstj summarily in LILCO's favor to the extent they allege inadequacies in the DOE-RAP program.1/ The regulations and NUREG-0654 guidelines governing the licensing of commercial nuclear fa-cilities, 10 C.F.R. Part 50 (1983); the " National Ra-diological Emergency Preparedness / Response Plan for Commer-cial Nuclear Power Plant Accidents (Master Plan)," 45 Fed.
Reg. 84,910 (1980); and the regulations governing the feder-41 radiological emergency planning and preparedness role, 44 C.F.R. Part 351 (1982), reveal that an individual NRC li-censing proceeding for a commercial nuclear facility simply is not the appropriate forum in which to review the adequacy of the DOE-RAP program.
A. The Applicable Regulations and NUREG-0654 Guidelines Do Not Contemplate NRC Review of the DOE-RAP Program The regulations and guidelines governing the licensing of commercial nuclear facilities, 10 C.F.R. Part 50 and 1/ This Memorandum of. Law does not address those parts of Contentions 45, 46, and 49 alleging deficiencies in the functions of the " unidentified outside consultant." The ;
factual issues involving the role of both the outside con-sultant and DOE in dose assessment are addressed in LILCO's motions for summary disposition of Contentions 45, 46, and i
- 49. The legal arguments set forth in this memorandum apply only to the alleged deficiencies in dose asseasment activi-ties of the DOE-RAP Teams.
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NUBEG-0654, in no way contemplate review of DOE's ra-diological emergency procedures in an NRC licensing proceed-t ing. NUREG-0654, which addresses the objectives of 10 C.F.R. 5 50.47 by specific criteria, see 10 C.F.R. Part 50,
. App. E, part IV, n.4, provides in section I.I (pages 27-28) as follows:
I. Federal Response The Department of Energy's current Ra-diological Assistance Program (RAP), the Federal Interagency Radiological Assistance Plan (IRAP), other radiological emergency assistance plans, and DOE's National La-boratories capabilities as well as those of the U. S. Environmental Protection Agency and the Department of Health and Human Ser-vices and other Federal capability, are being incorporated in a Federal Radiological Monitoring and Assessment Plan. Response plans should contain provisions for integra-tion of this important Federal assistance.
The interrelationships of the Federal agen-cies and their roles during a radiological emergency will be defined in a National Ra-diological Emergency Preparednese Plan now being developed by FEMA, and in an NRC agen-cy plan. These plans will be compatible with State, local and licensee plans devel-oped using the " Planning Standards" of this guidance and criteria document.
The fact that NUREG-0654 states (1) that an applicant's emer-gency plan should include provisions only for " integration of this important Federal assistance," (2) that the DOE-RAP pro-gram is being incorporated into a separate Federal Radiological Monitoring and Assessment Plan, (3) that the roles of federal l
l agencies'during a radiological emergency will be defined in a l
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separate National Radiological Emergency Preparedness Plan being developed by the Federal Emergency Management Agency I
(FEMA),2/ and (4) that "these plans will be compatible with State, local and licensee plans developed using [the NUREG-0654 guidelines)," shows that review of the adequacy of the DOE-RAP program in an NRC licensing proceeding is not contemplated under federal law.
Moreover, NUREG-0654, II.I.8, which sets forth criteria for the 10 C.E.R. 9 50.47 t b)(9) requirement that " adequate methods, systens and equipment for assessing and monitoring ac-tual or potential offsite consequences of a radiological emer-gency are in use," provides that those criteria are applicable to and must be met only by the emergency plans of the
" licensee," " State" and " local" emergency plans. The criteria of MUREG-0654 are directed to how utility, local, and State plans interface with the federal program; NUREG-0654 does not address the substance of the federal program itself.
DOE is the federal agency with technical expertise in the area of radiological monitoring and assessment. See 45 Fed.
Reg. 84,910, 84,911-84,912 (1980). The Radiological Assistance Program, now a pa~t of DOE, has existed since 1958, when it was created by the Atomic Energy Commission.3/ FEMA, in fact, has 2/ FEMA recently completed a draft Federal Radiological Emergency Response Plan (FRERP), which was published for re-view in the Federal Register .in January 27, 1984. See 49 Fed. Reg. 3578 (1904). Tha iRERP includes the Federal Ra-diological Monitoring and ..asessment Plan (FRMAP), which was developed by DOE. See id. at 3586.
3/ The RAP program was established originally in 1958 by the Atomic Energy Commission (AEC) to provide federal emer-(footnote continued)
s drawn on DOE's technical expertise in this area to such an extent that DOE has been given the following responsibilities:
4 (footnote continued) gency assistance and advice regarding radiological hazards of incidents involving radioactive materials and to protect the public health and safety from these hazards. See United i States Department of Energy, "The U.S. DOE Radiological As-sistance Program: Personnel, Equipment and Resources,"
. Brookhaven National Laboratory-Safety an i Environmental Pro-l tection Division, Upton, New York 11973, BNL 32,857. RAP operated on an ad hoc basis until 1961, when the AEC pub-lished a formal Interagency Radiological Assistance Plan for Federal radiological emergency assistance. See 49 Fed. Reg. 3578, 3586 (1984). The Energy Reorganization Act of 1974, ;
a 42 U.S.C. SS5814, 5841 (1983), abolished the Atomic Energy Commission (AEC) and transferred all of its nonregulatory functions to one of DOE's predecessors, the Energy Research and Development Administration (ERDA). See S. Rep. No.
- 93-980, 93rd Cong., 2d Sess. 3, reprinted in fl974] U.S.
l Code Cong. & Ad. News 5470, 5470. ERDA was given broad power to exercise whatever authority was necessary to per-form the transferred functions. Title 42 U.S.C. S5814(h) provides as follows:
To the extent necessary or appropriate to per-form functions and carry out programs trans--
ferred by this chapter, the Administrator [ERDA]
and Commission may exercise, in relation to the i
functions so transferred, any authority or part thereof available by law, including appropria-tion Acts, to the official or agency from which such functions were transferred.
42 U.S.C. 55814(h)(1983).
The powers of ERDA, along with myriad federal programs, were transferred to DOE by the Department of Energy Organiza-tion Act of 1977,-42 U.S.C. S7101 et seg. (1983). Section 7151 of the Act provides-for transfer to the Secretary of Energy of L all " functions vested by law in the Administrator of the Feder-al Energy Administration or the Feder al Energy Administration, the Administrator of the Energy Research and Development Admin-istration or the Energy Research and Development Administra-tion; and the functions vested by law in the officers and com-ponents of either such administration." 42 U.S.C. 57151
.(1983). Executive Order No. 12,038, 43~ Fed. Reg. 4957 (1978),
as amended by Sxecutive Order No.- 12,156, 44 Fed. Reg. 53,073 (1979), provides that the Secretary of Energy shall exercise all functions'of the Atomic Energy Commission that were trans-ferred to ' the Administrator of Energy Research and Development
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pursuant to the Energy Reorganization Act of 1974.
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(h) Assist FEMA-in~ developing and promulgating guidance to State and local governments for the preparation of radiological emergency plans.
4 (i) Assist FEMA with the development, imple-mentation and presentation to the extent that resources permit of training programs for Feder-
- , al, State and_ local radiological emergency re-sponse personnel.
(j) Participate with FEMA in assisting State and local governments.in developing their ra-diological emergency plans, evaluating exercises to test plans and evaluatin'g the plans and pre-l paredness.
(k) Develop, with FEMA, representative scenarios from which DOE facility operators and State and local governments may select for use in testing and exercising radiological emergency plans.
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(1) Provide representation to and support for the FRPCC and the RACs.
(m) Assist FEMA in the development of guidanco for State and local governments on emergency in-strumentation systems for radiation detection and measurement.
(f) Serve as the lead agency for coordinating
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the development and issuance of interagency in-structions and guidance.to implement'the Federal Radiological Monitoring and Assessment Plan (FRMAP), which will replace the Interagency Ra-diological Assistance Plan. The FRMAP provides j
the framework through which participating Feder-al agencies will' coordinate the1r emergency ra-diological monitoring and assessment activities with those of State and local governments.
(g) Develop, maintain and improve capability to detect and as'sess hazardous levels of radiation. ;
J 44 C.F.R. $351.24 (f) and (g)-(1982)'.
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Because (1) the regulations in 10 C.F.R. Part 50 and the guidelines in NUREG-0654 do not contemplate review of DOE's ra-diological emergency procedures in an NRC licensing proceeding, (2) DOE is the federal agency with technical expertise in the
- area of radiological monitoring and assessment, and (3) DOE has been assigned responsibility for the FRMAP by FEMA, it is not necessary for the Board to review the specifics of DOE's ra-diological assistance programs.4/
. B. Under the Master Plan, FEMA, Not the NRC, is Charged with Reviewing the DOE-RAP Program 1
The DOE-RAP program is part of a coordinated radiological emergency planning and preparedness fu,nction of FEMAS/ a'nd, as
} such, is reviewable by FEMA through a proccas separate and dis-t tinct from an NRC licensing proceeding. See 44 C.F.R. $351.3 (1982); 45 Fed. Reg. 84,910 (1980). The FEMA Master Plan i
4/ Our research has not disclosed any NRC proceedings in which a licensing board allowed intervenors to litigate the ad- ,
equacy of the DOE-RAP program.
5/ On December 7, 1979, President Carter, in response to the recommendationn of The President's Commission on the Accident at Three Mile Island, directed that FEMA assume prima-ry responsibility for all federal off-site radiological plan-ning and response. See 45 Fed. Reg. 84,910 (1980). In 1980, the Nuclear Regulatory Commission Appropriations Authorization, Pub. L.96-295, 5304, 94 Stat. 780, reprinted in (1980] U.S.
Code Cong. & Ad. News 2216, was enacted, requiring-the Presi-dent to prepare and publish a National Contingency Plan to pro-vide for an expeditious, efficient, and coordinated Federal re--
t sponse to an accident at.a commercial power plant. In response l to this appropriations authorizaticn, President Carter dele-
, gated the responsibility for preparing the plan to FEMA. See
, Exec. Order No. 12,241, 45 Fed. Reg. 64,879 (1980). FEMA's J Master Plan resulted from that delegation of responsibility. i
O assigns to DOE the federal emergency response functions '
relating to offsite radiological monitoring and assessment. 45 Fed. Reg. 84,910 (1980). Each of the federal agencies assigned responsibilities under the Master Plan, including DOE, is re-sponsible for developing its own detailed implementation plan.
Id. The Master Flan provides that " FEMA will review the agency implementation plans and, working with each agency, will inte-grate them and this Master Plan into a comprehensive National Radiological Emergency Preparedness / Response Plan for Commer-cial Nuclear Power Plant Accidents." Id.
The emergency response functions for which DOE has the re-sponsibility of developing detailed implementing plans that will be reviewed by FEMA are the following:
- 1. Coordinate the off-site radiological moni-toring, assessment, evaluation, and reporting activities of all Federal agencies during the initial phases of an accident, and maintain a technical liaison with State and local agencies with similar responsibilities. Ensure the or-derly transfer of responsibility for coordinating the intermediate and long-term ra-diological monitoring function to EPA after the initial phases of the emergency at a mutually agreeable time.
- 2. Provide the personnel, including the Off-site Technical Director, and equipment re-quired to coordinate and perform the off-site radiological monitoring and evaluation activi-ties.
- 3. Assist the NRC in assessing the accident po-tential and in developing technical recommenda-tions on protective measures.
- 4. Maintain a common set of.all off-site ra-diological monitoring data and provide this data and interpretation to the NRC and to appropriate I
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't State and local agencies requiring direct knowl-edge of radiological conditions.
- 5. Provide consultation and support services to all other entities (e.g. private contractors) having radiological monitoring functions and ca-pabilities.
- 6. Assist HHS [ Health and Human Services) and other Federal, State and local agencies by providing technical and medical advice concern-ing treatment of radiological contamination.
- 7. Provide telecommunications support and interface ',ith Nuclear Emergency Search Team (NEST) capabilities as provided for by existing NRC/ DOE agreements.
- 8. Assist other Federal agencies in developing and establishing guidelines cn effective systems of emergency radiation detection and measure-ment, including instrumentation.
- 9. Review and integrate agency radiological monitoring plans into the Federal Radiological Monitoring and Assessment Plan.
Master Plan, 45 Fed Reg. 84,910, 84,915-(1980).
The functions assigned to DOE in the Master Plan and re-viewed by FEMA are precisely the functions that LILCO relies upon DOE to perform in an eme gency at Shoreham. See SNPS J
Local Offsite Radiological Emergency Response Plan at 1.4-2, Figure 2.1.1 (page 2 of 4), Attachment 2.2.1, 3.5-1, 3.5-2, 3.5-3, 3.5-4, 3.6-4,-.and OPIPs 2.1.1, 3.5.1, 3.5.2, 3.5.3, 3.6.1, and 3.6.6. It is FEMA, and not an NRC licensing board, that is assigned the responsibility of reviewing the DOE-RAP program.
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l II. Presumptions of Validity and Regularity Apply to DOE's Program If this Board should reject both the preceding argument and those in LILCO's motion for summary disposition on Conten-tions 45, 46, and 49, then the presumptions of validity and regularity should be applied to the litigation of DOE-related issues in thia proceeding.
First, it is well-established law that procedures promul-aated by federal officials pursuant to a grant of authority are entitled to a presumption of validity. See Lewis v.
Richardson, 428 F.Supp. 1164, 1169 (D.C. Mass. 1977). This legal principle is based on the assumption that the agency des-ignated by Congress to act has the requisite expertise. See id.
It also is well established that, in the absence of clear evidence to the contrary, a presumption of regularity extends to the actions of the administrator charged with implementing the procedures. See United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926). It is presumed that public officials perform their duties properly, in good faith, and it. accordance with the law and governing regulations. See id.; Parsons v.
United States, 670 F.2d 164, 166 (Ct.C1. 1982).
The intervenors, therefore, in pursuing Contentions 45, 46, and 49 before this Board, must overcome a presumption that DOE (1) will provide and ensure continuity of technical, admin-istrative, and material resources, (2) is capable of providing i
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prompt and continuous service for,a protracted period, (3) will augment the initial staffing on a continuous basis, and (4) is able to use its dose assessment techniques to calculate doses.
The intervenors cannot simply file contentions alleging deficiencies in the DOE-related provisions of the LILCO plan, but must rcbut the presumption that DOE adequately performs those tasks for which it is responsible.
Therefore, pursuant to the Board's power to " regulate the course of the hearings and the conduct of the participants," 10 C.F.R. 5 2.719(e), LILCO requests that the Board require the intervenors to file testimony prior to LILCO on Contentions 45, 45, and 49, to rebut the presumption that DOE's radiological assistance program meets the governing regulations and NUREG-0654 guidelines.
III. Conclusion LILCO asks that the Board grant summary disposition in LILCO's favor on Phase II Emergency Planning Contentions 45, 46, and 49, on the grounds stated in LILCO's motions for summa-ry disposition on those contentions and because, as a matter of NRC law and policy, the adequacy of the DOE-RAF program should not be litigated in a licensing proceeding.
In the alternative, LILCO requests that the Board require the intervenors to file testimony to rebut the presumptions of validity and regularity that attach to the DOE-RAP program be-fore LILCO files its testimony on Contentions 45, S6c and 49.
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If the Board orders the intervenor.s to file their testimony first, LILCO requests that the Board rule on whether the inter-venors' testimony has overcome the presumptions mentioned above and then, if that precumption has been overcome, allow a period of two weeks for LILCO to file its testimony.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY t
F James N. Christman Renee R. Falzone Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23219 DATED: February 14, 1984 e
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LILCO, February 14, 1984
. CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power. Station, Unit 1)
(Emergency Planning Proceeding)
Docket No. 50-322-OL-3 I certify that copies of LILCO's MEMORANDUM OF LAW IN SUPPORT OF LILCO'S MOTIONS FOR
SUMMARY
DISPOSITION ON PHASE II EMERGENCY PLANNING CONTENTIONS 45, 46, AND 49 were served this date upon che following by first-class mail, postage prepaid, or (as indicated by one asterisk) by hand, or (as indicated by two asterisks) by Federal Express.
James A. Laurenson, Secretary of the Commission Chairman
- U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing East-West Tower, Rm. 402A Appeal Board Panel 4350 East-West Hwy. U.S. Nuclear Regulatory Bethesda, MD 20814 Commission Washington, D.C. 20555 Dr. Jerry R. Kline*
Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel
- U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East-West Tower, Rm. 427 Washington, D.C. 20555 4350 East-West Hwy.
Bethesda, MD 20814 Bernard M. Bordenick, Esq.*
David A. Repka, Esq.
Mr. Frederick J. Shon* Edwin J. Reis, Esq.
Atomic Safety and Licensing U. S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory 7735 Old Georgetown Road Commission (to mailroom)
East-West Tower, Rm. 430 Bethesda, MD 20814 4350 East-West Hwy.
Bethesda, MD 20814 Stewart M. Glass, Esq.**
Regional Counsel Eleanor L. Frucci, Esq.* Federal Emergency Management Attorney Agency Atomic Safety and Licensing 26 Federal Plaza, Room 1349 Board Panel New York, Cew York 10278 U. S. Nuclear Regulatory
. Commission Stephen B. Latham, Esq.**
l East-West Tower, North Tower Twomey, Latham & Shea 43.0 East-West Highway 33 West Second Street Bethesda, MD 20814 Post Office Box 398 l Riverhead, NY -11901 I
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Fabian G. Palomino, Esq.** Ralph Shapiro, Esq.**
Special. Counsel to the Cammer & Shapiro, P.C.
Governor S East 40th Street Executive Chamber New York, New York 10016 Room 229 State Capitol James B. Dougherty, Esq.*
1.lbany, New York 12224 3045 Porter Street Washington, D.C. 20008 Herbert H. Brown, Esq.*
Lawrence Coe Lanpher, Esq. Howard L. Blau Christopher M. McMurray, Esq. 217 Newbridge Road Kirkpatrick, Lockhart, Hill Hicksville, NY 11801 Christopher & Phillips 8th Floor Jonathan D. Feinberg, Esq.
1900 M Street, N.W. New York State Public Service Washington, D.C. 20036 Commission, Staff Counsel 3 Rockefeller Plaza Mr. Marc W. Goldsmith Albany, New York 12223 I Energy Kesearch Group '
4001 Totten Pond Road Spence W. Perry, Esq.**
Waltham, Massachusetts 02154 Associate General Counsel Federal Emergency Management MHB Technical Associates Agency 1723 Hamilton Avenue 500 C Street, S.W.
Suite K .
Washington, D.C. 20472 San Jose, California 95125 Ms. Nora Bredes Mr. Jay Dunkleberger Executive Coordinator New York State Energy Office Shoreham Opponents' Coalition Agency Building 2 195 East Main Street Empire State Plaza Smithtown, New York 11787 Albany, New York 12223 Martin Bradley Ashare, Esq.
Gerald C. Crotty, Esq.** Suffolk County Attorney Counsel to the Governor H. Lee Dennison Building Executive Chamber Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224
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'Renee R. Falzone Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATED: February 14, 1984
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