ML20107K447

Comments on Proposed Findings of Fact & Conclusions of Law on Offsite Emergency Planning.Certificate of Svc Encl

ML20107K447
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/09/1984
From:	Glass S Federal Emergency Management Agency
To:
References
CON-#484-068, CON-#484-68 OL-3, NUDOCS 8411130138
Download: ML20107K447 (9)

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INITED SIATES OF AMERICA NUCLEAR REGUIA'IORY COMHISSION

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-' - Before the Atomic Safety and Licensing Board '

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) R1 :20 In the Matter of ) Docket No. 50-322-OIc3

)' (Buergency Planning Proceeding)

LONG ISIAND LIGfrING COMPANY ) -

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(Shoreham Nuclear Power Station,)

• Unit 1) )

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FEDERAL EMERGENCY MANAGDENT AGENCY'S CCtHNTS ON 'IEE PROPOSED FINDINGS CF FAOP AND CONCWSIONS OF IAN ON OFESITE ENERGENCY PIANNItU It is not the intent of the Federal Energency Management Agency to weigh the evidence presented or judge which party should prevail, that is not the role of FDR in these st- - -" Logs. Nor, is FDR a3vocating any position relative to the granting of a license in this st -MLng. Rather, FD R feels it should be provided an opportunity to clarify its role in these s --Mings c and respond to certain assertions relative to FDR contained within the Proposed Findings of Fact and Cbnclusions of Iaw on Offsite FKv ysncy Planning as propounded by the parties. Of particular concern are

. the statements made in regard to the rebuttable prestmptions to be afforded FDR's interim findings, the impact of revisions to the LIIf0 Transition Plan, Revisi

. 3 on FDR's interim findings, and the weight to be afforded a A plan review.1/

". In the aftermath of the accident at 'Ihree Mile Island, the Nuclear Regulatory h=sicn undertook a " formal reconsideration of the role of mm O

emergency planning in the continued protection of the public health and

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^ safety in areas around nuclear power facilities." 45 Fed. Peg. 55402

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ig"uO 1/- It is not the intent of~ this filing to address all issues and FDR's silence on specific interpretations of its testinony should not be accepted as acquiescence. FDR understands that the NBC staff has subnitted Proposed Findings that accurately reflect FDR's testimony. .

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1. t (August 19,1980). We Ocmnission subsequently promulgated its emergency planning regulation.2/ 'Ihe Ommission regulations require a finding that -

" reasonable assurance that adequate protective measures can ani will be .

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taken in the event of a radiological emergency." be made before an operating '

' license can be issued. 10 C.F.R. $ 50.47 (a)(1).

In reaching its decision regarding the existence of " reasonable -

assurance" the Comnission relies on " findings and determinations made by the Federal Fuwgaucy Management Agency (FDR).3/ FDR makes s. ' Mings and detaminations in accortlance with its emergency planning rs . ions, 44 C.F.R. Part 350, which ~contains the same sixteen planning standards as the onmission's regulations. FDR reviews offsite emergency plans against these sixteen planning standards and NUREG-0654/FDR REP 1, Fevision 1 (1980), a joint NRC/FDR regulatory guide.4/

Pursuant to FDS/NBC's Memorandun of Ubderstanding (MOU), (45 F.R.

82713) (December 16, 1980) FDR has agreed to make findings as to whether offsite emergency plans are adequate. Such firriings are referrai to as 2/ 10 C.F.R. $ 50.47 (1980) f 3/ 10 C.F.R. $ 50.47 (a)(2).

4/ "We agree that Am= ants such as the FD% findings and determinations, l NUREM)654, and FDR-REP 2, scmewhat like the Regulatory Guides, do not rise to the level of regulatory requirements. Neither do they constitute the only method of meeting the applicable regulatory requirements. Of. Fire l, Protection for Operating Nuclear Power Plants (10 CFR 50.48), CLT 81-11,13 p NRC 778, 782 n.2 (1981); Gulf States Utilities C mpany, (River Bend Station, J Units 1 and 2) AI48-444, 6 NRC 760, 772-773 (1977) . In the absence of other evidence, the adherence to regulatory guides may be sufficient to demonstrato conpliance with regulatory requirements. Petition for Emergency and P M ial Action, CLI-78-6, 7 NRC 400, 406-407 (1978). " Metropolitan -

Edison Canpany et al., (mree Mile Island Nuclear Station, Unit 1) 16 N.R.C.

1290 at 1298-99 (1982).

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.a. " interim" because they supplernent the formal procedures set forth in 44 CFR 350 and they reflect the status of the plans and the capability of the response at the time of evaluation. Requests for interim findings are usually made by the NBC to FDR to provide informaticn at a licensing  ;

ye_- ="ing . By the terms of the POU, FDR is also responsible for providing witnesses to testify at the ASIB hearings on these FDR findings.

Pursuant to the "Memorandtzn of Understanding Between the NRC and FDR Relating to Fu.r.@cy Planning and Preparedness",'the Staff requested that i FDR provide expert testimony in response to the contentions and to provide

- witnesses at the hearing. In response to that request the FDR staff prepared extensive written testimony Which was admitted to these l y- Q s.5/ 'Ihe Ommission's rule provides that FDR's findings and E

de*aminations constitute a rebuttable presumption on the issue of the

%9ey of offsite plans. -10 C.F.R. { 50.47 (a)(2); South Carolina Electric and Gas Conpany, et al. (Virgil C. Stamer Nuclear Staticri, thit 1),

j 16 N.R.C. 477 485 (1982) Med wp.,litan Edison Conpany, et al. (Three Mile Island Nuclear Station, Unit 1) 16 N.R.C.1290,12% (1982). Metropolitan n

I FAf anr1 Ocmpany, et al. (Three Mile Island Naclear Station, Unit 1),14 N.R.C. 1211 at 1460-66 (1981). FDR's testimony, however, is not frozen at the point of its interim findings or prefiled testimony at the expense of  :

i ignoring any subsequent corrective actions.6 Southern California Edison Ccmpany, et al.17 N.R.C. 346, 379 (1983) .

5/ Direct Testimony of Philip M::Intire concerning (bntentions 23, 25, 65 i' and Direct testimony of Thomas E. Baldwin, Joseph H. Keller, Ibger B.

Nowieski and Philip H. M:Intire (bncerning Phase II Bnergency Planning.

• 6/ FDR expects to submit its Review of the LIIf0 Transition Plan, Revision 4 to the NRC on or before Novenber 15, 1984.

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O A review of the Licensing Board's partial initial decision in Metropoli-tan Edison Co. ('Ihree Mile Island Nuclear Station, Unit 1) IEP-81-59,14 NIC 1211, 1462-66 (1981) clearly deTonstrates that the Licensing Board did not state, contrary to the Intervenors assertion, that "there is no presum;?dve effect to be accorded to the FDR testimcny". Rather the 'IMI Licensing Boe.rd recognizal that 10 C.F.R. 6 50.47 (a)(2) provides that "a FDR finding I w2.ll constitute a rebuttable presunpticn on question of adequacy and '

inplementaticn capability" of an offsite emergenc,.y plan, but denied the l section was applicable to the 'IMI restart proceeding before it. .

l In addi .:.on, the intervenors state that FDR has " basically performed I i

only a ' paper review' of the plan, which was not particularly helpful to the Ibard", but a careful review of the NRC's cui regulations 10 C.F.R. 50.47 (a)(2) clearly indicates that the NRC envisioned that review would be based on the plans. "A 1HR finding will primarily be based on a review of the plans. Any other information already available to FDR may be cransidered in assessing whether there is reasonable assurance that the plans can be inplemented. In any NRC licensing proceeding, a FH % finding will cansti-tute a rebuttable presumpticn cn questions of adequacy and implementation capability."

'Ihe criteria that FD% is to apply in its review is principally contained in NURB3 0654-FDG/NRC Rev. 1. 'Ihis document contains a series of planning objectives and a listing of specific criteria for preparation and evaluaticn of the plannire and preparedness activities of offsite emponents.

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FDR's own rule 44 C.F.R. 350 established policy and procedures for the review of offsite emergency plans and preparedness for coping with offsite effects of radiological emergencies which may occur at nuclear powcr plants.

It describes the process by which FD*.A makes findings and determinations as to the adequacy of offsite plans and prescribe standards for these plans.

'1he standards used for review ard approval of plans under this FDR rule are contained in NUREG-0654 FDR REP.1, Rev.l.

FDR's 350 process requires a plan review, an' exercise ard a public meeting as a prerequisite for its approval of offsite plans. FDR's approval of offsite plans and preparedness is considered independently of any rule of the NRC with respect to its licensing ytiMings (44 CFR 350).

As the Appeal Board in Southernr 'alifornia Edison Capany et al.

recognized:

'Ihe Memorandun (of Understanding) raemnizes the distinct possibility that a final FDR finding may not always be

available in a timeframe conpatible with the schedule of n,=niasicn licensing yi&Winga. It therefore provides that FDR will offer preliminary views on the state of offsite energency preparedness " based upon plans currently available to FDR." 45 Fed. Reg. at 82714 (emphasis added).

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%e Memorandun states further that to support its findings l- --

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and determinations, "FDn will make expert witnesses avail-able before . . . NRC boards ard administrative law judges."

Ibid. She clear inport of the Memorandun is that FDR will provide 'Ccumission licensirg prwings, through FDR witnesses, the benefit of its nost current evaluation of State ard local emergency planning. 'Ihere is to hint of ~

" freezing" either FDR or the licensing ywcMing to earlier

'and likely outuoded information. Southern California Edison Ccupany, et al.,17 N.R.C. 346 at 379-80 (1983) .

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'Ihe Board.was aware of the parameters under which FENA's testimcny was prepared. FEMA's witnesses clearly stated that their prefiled testimony was based on a review of Revision 3 of the LIICO Transition Plan. At the time of their appearance before the Board FEMA had not ccrapletal its review of .

Revision 4. FENA's witnesses repeatedly testified that certain . aspects of the plan are normally verified at an exercise. 'Ihe survey of the IERO training programs was undertaken by Pr. Keller before the panels last appearance in order to assist the Board.

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'Ib attengt to dismiss FEMA's testimony as it relates to major ccmponents of the plan because additional testimony was received on sections' of a later revisicn of the plan, or because a testire effort as envisioned by the Intervenors was rot tindertaken circumvents the process and FENA's role in it.

Respectfully subnitted, 1

l Stewart M. Glass Regional Counsel Federal Emergency Management Agency 26 Federal P1 m 1 - New York, New York 10278 i

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UNITED STATES OF AMERICA E NUCIEAR REGUIA'IORY CCPHISSION .. ,.., ,

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BEEDRE 'IHE A'ICMIC SAFETY AND LICENSING APPEAL BOARD

• 84 .

1 X'-o AU 2r In the Matter of )

) Docket No. 50-322-OL-3 IONG ISIAND LIGfrING COMPANY ) (Energency Planning)

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' (Shoreham t&aclear Power Station, Unit 1 )

CERTIFICATE OF SERVICE I hereby certify that copies of the Federal Bnergency Phnar=mant Agency's Ozanents On 'Ihe Pv--:==4 Findings Of Fact And Cbnclusions Of law On Offsite anergency Planning has been served at the following by deposit in the thited States mail, first class, on this $th day of Novenber 1984.

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James A. Laurenson, Esq.* Howard L. Blau, Esq.

- Administrative Judge, Omirman 217 Newbridge Road Atanic Safety.and Licensing Board Hicksville, NY 11001 U.S. Inaclear Regulatory Chunission East-West Tower, Bm.~402A W. Taylor Reveley III, Esq.*

4350 East-West IWy. Huntcn & Williams Betheada, MD 20814 707 East Main Street Rictinond, VA 23212 Dr. Jerry R. Kline*

Administrative Jtrige Cherif Sedkey, Esq.

Atanic Safety and Licensing Board Kirkpatrick, Inckhart, Johnson U.S. Nuclear Regulatory Omnission & listchisal East-West Tower, nn. 427 1500 Oliver Bi41aing

-4350 East-West IWy. Pittsburgh, PA 15222 ,

Bethesda, to 20814 Stephen B. Latham, Esq.

Mr. Frederick J. ! hon

• John F. Shea, III, Esq.

7A=4nistrative Jtrige Twomey, Iatham & Shea Atomic Safety and Licensing Board Attorneys at Law U.S.142 clear Regulatory 02anission P.O. Box 398 L East-West Tower, Em. 430 33 West Second Street

- 4360 East-West Iky. Riverhead, NY 11901 Bethesda, MD 20814 ,

Atomic Safety and Licensing Board Panel U.S. tkaclear Regulatory h4==ien Washington, D.C. 20555 c4 9' 1

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u Atomic Safety and Licensing Stewart M. Glass, Esq.

Appeal Board Panel Regional Counsel U.S. Nuclear Regulatory Omnission Federal Buergency Management Agency Washington, D.C. 20555 26 Federal Plaza, Rn.1349 New York, New York 10278' Docketing and Service Section Office of the Secretary Secretary of the Omnission U.S. Nuclear Regulatory Ocnnission U.S. Nuclear Regulatory Washington, D.C. 20555 0:mnission Washirgton, D.C. 20555 Spence Perry, Esq.

Associate General Counsel Federal Energency Managenent Agency Bernard M. Bordenick, Esq.*

lbom 840 Richard J. Goddard 500 C. Street, S.W. Donald F. Hassell Washington, D.C. 20472 Oreste Russ Pirfo F4 win J. Beis, Esq.

Herbert H. Brown, Esq.* Sherwin E. Turk Iawrence Coe Lanpher, Esq. U.S. Naclear Regulatory Karla J. Letsche, Esq. O:mnission Kirkpatrick, Lockhart, Hill 7735 Old Georgetown Ibad Oristopher & Phillips (to mailroom) 1900 M Street, N.W. Bethesda, MD 20814 8th Floor Washington, D.C. 20036 Fabian G. Pa1emino, Esq.

Richard J. Zahnleute, Esq.

Eleanor L. Frucci, Esq.* Wial Counsel to the Governor Attorney Executive Chamber Atomic Safety and Licensing Board State Capitol Panel .

Albany, New York' 12224 U.S. Nuclear Regulatory Cbmnission BetM wla, MD 20814 Ben Wiles, Esq.

Gerald C. Crotty, Esq. Astistant (bunsel to the Governor Counsel to the Governor Executive m amber Executive Gamber State Capitol Stata-Capitol Albany,.New York 12224 Albany, New York 12224 Jonathan D. Feinberg, Esq.

James B. Dougherty, Esq. Staff Cbunsel 3045 Porter Street, N.W. New York State Department of

-Washington, D.C. 20008 Public Service 3 Buoire State Plaza Albany, New York 12223 h.

Stewart M. Glass Regional Cbunsel for Federal Bnergency Managenent Agency

3-COURIESY COPY LIST Edward M. Barrett, Esq. Mr. Brain R. McCaffrey General Counsel long Island Lighting Company long Island Lighting Ccxnpany Shorehm Nuclear Power Station 250 Old County Road P.O. Box 618 Mineola, NY 11501 North Country Road Wading River, W 11792 Marc W. Goldsmith Energy Research Group, Inc. N B Technical Associates

' ~ 400-1 Totten Pbnd Road 1723 Hamilton Avenue Walthan, MA 02154 Suite K San Jose, CA 95125 Martin Bradley Ashare, Esq.

f.: . Suffolk County Attorney Hon. Peter Cohalan H. Ice Dennision Bldg. Suffolk County Executive Veteran's Manorial Highway County Executive / Legislative Bldg.

, Hauppauge, NY 11788 Veteran's Memorial Highway Hauppauge, W 11788 Ken Robinson, Esq.

N.Y. State Dept. of Law Mr. Jay Dunkleberger 2 World Trade Center New York State Energy Office Room 4615 Agency Building 2 New York, NY 10047 Bnpire State Plaza Albany, NY 12223 Ms. Nora Bredes Shoreham Opponents Coalition 195 East Main Street Snithtown, NY 11787

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Iman Friednan, Esq.

Costigan, Hyman & Hyman 1301 Franklin Avenue Garden City, New York 11530 e

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