ML20151P509

Corrected Staff Reply to 880627 Appeal Board Order.* Aslab Should Decide Issues Now So Any Controversy Surrounding Excercise Will Be Evaluated According to Proper Interpretation of Relevant Legal Stds.W/Certificate of Svc

ML20151P509
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/11/1988
From:	Matt Young NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20151P484	List: ML20151P481 ML20151P509
References
OL-5, NUDOCS 8808100055
Download: ML20151P509 (8)

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- 00CKETED USNPc UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 88 AUG -8 P2 :53 s

REF0PE THE ATOMIC SAFETY AND LICENSIN_GG APPEAL BOARD In the Matter of )

LONG ISLAND LIGitTING COPPANY Docket No. S0-322-OL-5 (Shoreham Nuclear Power Station, )

Unit 1) )

ST A FF REPLY T O JU F'F 27, 1988 APPE AL BO ARD ORDER

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Mitri A . Y ou n g C ou nsel for t' R C Staff July 11,1988 G

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEF0PE THE ATOMIC S_AFETY AND LICENSING APPEAL BOARD In the Matter of )

LONG ISLAND LIGitTING COMPANY Docket ho, 50-322-OL-5 (Shoreham Nuclear Power Station, )

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Unit 1) )

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i ST A FF REPL Y T O JU F'F 27, 1988 APPEAL BO ARD ORDER 3

1 Mitzi A. Young Counsel for NRC Staff h

. July 11,1988  ;

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y UNITED STATES OF AMERICA NUCLEAR REGULATORY C0FFISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

LONG I AND LIGHTING COMPANY ) Docket No. 50-322-0..-5 (EPExercise)

(Shori .m Nuclear Power Station, Unit 1)

STA,FF REPLY TO JUNE 27, 1988 APPEAL ECARD ORDER In an Order dated Jure 27, 1988, the Appeal Board requested the parties' views on whether, in light of the June 1988 exercise of the Shereham errergency plan, the partial initial decisions concerning the February 1986 exercise 1/ should be vacated and the related appeals aisniissed as moot. Order at 3. The Staff hereby provides its response.

The Staff does not take a position on whether the licensing of Shoreherr should proceed based on the results of the June 1988 exercise or on the basis of the February 1986 as confirmed, and/or rectified, by the 1908 exercise. In either cese, resolution of the fundarental legal issues l cn appeal is essential. In a Memorandum of Pay 25, 1988 (at 1), this Board stated that it would review matte"s involving the scope of the I/ LBP-87-32, 26 NRC 479 (1987); LBP-88-2, 27 NPC 85 (1988). These proceedings were conducted in response to the Cornmission's direction in CLI-86-11, 23 NP.C 577, 579 (1986), that an exercise hearing be '

conducted to consider evider.ce offered to show a fundamental flaw in the LILCO emergency plar,. The Cortrnission defined fundamental flaws l as "any deficiencies [ revealed by an exercise) which would preclude a finding of reasonable assurance that protective treasures can and will be taken." Id. at 581.

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Shoreham emergency planning exercise, although the appeal was _ technically moot, because the disposition of the appeal "may well be relevant" to

- future conduct. Similarly, here we believe the Appeal Board should continue its review of the appeals stemming from the 1986 exercise as the matters are relevant to future conduct and the standards to be applied in judging the 1988 exercise.

The two decisions on appeal raise fundamental questions regarding the appropriate legal standard to be applied in evaluating the scope of an exercise and the appropriate definition of a fundamental flaw. These legal issues are at the heart of any evaluation of emergency plans and an authoritative decision by the Appeal Board which illuminates these question will have a pervasive effect on this and other emergency planning litigation.

In LBP-87-32, the Licensing Board found that the scope of exercise of ,

the Shoreham offsite plan was too limited and therefore failed to meet the requirements of 10 C.F.R. Part 50, Appendix E, QIV.F.1, 26 NRC at 501-502. Even though NRC and FEMA guidance documents suggested the centrary, the Foard found that initial exercises under section IV.F.1. are required to be tore comprehensive in scope than subsequent exercises.

M.at488-89. Based upon the language in section IV.F.1 providing for an initial exercise "which tests as much of the licensee, State and local erre rgency plar, as is reasonably achievable without mandatory public participation," the Board reasoned that scope of an exercise of an errergency plan is adequate only if it tests all portions of the plan which were "reasonably achievable." M. at 485, 492, 497-99, 501. Therefore the scope of the exercise was inadequate because it excluded testing of L _

' A four planning areas which could have been "reasonably achieved." Id. at 501-02. The Board never addressed, however, the crucial question of whether the scope of the exercise was so fundamentally flawed so as to

. prevent a reasonable assurance finding under 10 C.F.R. I 50.47. Although the Appeal Board's May 25, 1988 Memorandum provides guidance on 'the proper scope of an exercise, such guidance was in the form of "tentative conclusions" to be followed by the Appeal Board's opinion on. the merits.

It is not clear what the status of such guidance would be if the Appeal Roard's opinion on the merits were not issued.

In LBP-88-2, the Board reasoned that minor or ad hoc problems did not constitute fundamental flaws, but a FEMA deficiency is equivalent to a fundamental fi m. 27 NRC at 92-93. Thus, the Board found that each deficieray identified by FEMA was c fundamental flaw.

There is little doubt that litigation of the 1988 exercise will again center on issues of adequate scope and on what constitutes "a fundamental flaw." Thus resolution 'of the basic legal issues of the proper sccpe of the exercise to satisf.v the requirements of the Coranission's regulations '

and of the legal characteristics of "a fundarrental flaw" is required to evaluate the results of either the 1986 or 1988 exercise. If no contentions are filed co%erning the 1988 exercise and there is no controversy concerning the adequacy of the 1988 exercise, questions raised in connection with the 1986 exercise would indeed be moot. The litigious history of this case, however, makes that possibility highly unlikely.

. The proper interpretation of the fundarrental flaw standard and the required scope of an initial exercise are issues which warrant appellate interpretation since they will impact this and other emergency planning

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l litigation. The Appeal Board 'should decide these issues now so th'at any controversy surrounding the Shoreham exercise, whether in February 1986 or June 1988, will be evaluated according to a proper interpretation of

- the relevant legal standards.

Respectfully submitted, Mitz' A. Young Wr

' Counsel for NP.C Staff Dated at Rockville, Maryland this lith day of July, 1988 k

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I' UNITED ST ATES OF AMERIC A NilCLE AR REGUL AT ORY COMMISSIO N

-B EFO RE T H E AT,0)if C S A FET Y A N D LICE NSIN G APPE AL B_0 A R D In the Matter of LONG ISL AND LIGHTING COMPANY Docket No. 50-322- 0 L -5 (EP Exercise)

(Shoreham Nuclear Power Station, Unit 1) )

CERTIFIC ATE OF SERVICE I hereby certify that copies of "STAFF REPLY TO JUNE 27, 1980 APPEAL BOARD ORDER" in the a bove-captioned proceeding were served ,

on the followin g by deposit in the U nited Stater, mail, first class or, ,

as indicated by ~ an a steris k , throu gh deposit in the N uclear Ptg ulatory Commissicr.'s internel trail system , on July 11, 1988 and that corrt.cted copies of that document have been served this 28th day of July 1988.

Christine N. Kohl, Chairman

• Joel Blau Esq.

A dministrative Judge Director, Utiity Interver, tion Atomic Sefety and Licensing Appeal Suite 1020 ,

Beard 99 Washington Aunne '

U.S. NUcit-ar Regulatory Commission Albany, N Y 12210 Washington, D C 205E5 Alan A. Rosenthal* Fabian G. Palomino, Esn.

Administrative Judge Special Counsel to the Governor Atcir.ic Safety and Licensing Appeal Executive Charr.ber Board State Capitol U.S. Nucleer Pegulatory Commission Albany, NY 12224 Washington, DC 20555 Dr. W. Reed Johnson

• Jonathan D. Feinberg, Esq.

Administrative Judge New York State Department of Aterr.ic Safety and Licensing Board Public Service Board Three Empire State Plaza U.S. Nuclear Regulatory Commission Albany, N Y 12223 Vashington, DC 20555 Philip McIntire W. Tayler Reveley III. Esq.

Federal Emergency Management Donald P. Irwin, Esq.

Agency Hunton & Williams 26 Federal Plaze 707 East Meli Street Room 13a9 P.O. Box 1535 hew York, N Y 10278 6..e h n.c n d , V A 23212

i

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

Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.

Attorneys at Law Karla J. Letsche, Esq. ,

33 West Second Street Kirkpetrick & Lockhart

• Riverhead, N Y 11901 South Lobby - 9th Floor

'SCO i M Street, N W Atomic Safety and Licensing

• Washington, D C 20036-5891 Board Panel U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office A gency Buildfrg 2 Atomic Safety and Licensing Empire State Plaza Appeal Board Panel Albany, NY 12223 U.S. Nuclear Regulatory Commission Washington, D C 20555 Spence W. Perry, Esq.

Martin Bradley Ashare, Esq. G eneral .Cou nsel Suffolk County Attorney Federal Emergency Management

.n H. Lee Dennisen Building Agency Veteran's Memorial highway 500 C Street, SW Hauppauge, N Y 11788 Washington, D C 20472 Anthony F. Earley, Jr. Dr. W. Reed Johnson General Counsel 115 Falcon Drive, Colthurst Long Island Lighting Company Charlottesville, V A 22901 175 East Old Country Road Hicksville, N Y 11801 Ms. Nora Bredes Shoreham Opponents Coalition Dr. Monrce Schneider 105 East Main Street Ncrth Shore Committee Smithtown, N Y 11787 P.O. Rox 231 Wading River, NY 11792 Barbara Newman Director Environmental Health William R . C umming , Esq . Coalition for Safe Living Office of General Counsel Box 944 Federal Emergency Mar,agement Agency Huntingten, New York 11743 500 C Street, SW Washington, D C 20472 Alfred L. Fardelli, Esc.

New York State Department of Law

Dr. Robert Hoffman 120 Broadway Long Island Coalition for Safe living Room 3-118 P.O. Box 1355 New York, N Y 1C271 Massapequa, N Y 1175E Docketing and Service Section*

Office of the Secretary U.S. Nuclear Regulatory Commissicn Washington, D C 20555 e

l Mitzi C Tung f r Counse for NRC Staff i