ML20155H387
| ML20155H387 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/17/1988 |
| From: | Lanpher L, Latham S, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#488-7285 ALAB-900, OL-5, NUDOCS 8810200082 | |
| Download: ML20155H387 (13) | |
Text
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7 a est 00f. METED U5NRC October.17. 19&B eo uu u PS :42 UNITED STATES OF AMERICA t r r, '- -
J NUCLEAR REGULATORY COMMISSION b:G.
Before the Commission
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exer:ise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
GOVERNMENTS' OPPOSITION TO LILCO'S PETITION FOR REVIEW OF ALAB-900 LILCO has petitioned the NRC to review ALAB-900,l/ in which the Appeal Board unanimously affirmed a Licensing Board decision that the 1986 Shoreham exercise failed to satisfy the full participation exercise requirements of 10 CFR Part 50, Appendix E, S IV.F.1.
Egg LILCO's Petition for Review of ALAB-900, Oct.
5, 1988 (the "Petition").
The Petition must be denied.
j The Governments (Suffolk County, New York State, and the Town of Southampton) agree that the interpretation of Section IV.F.1 presents an important issue under the NRC's regu-l l
i 1/
Lona Island Lichtina Co. (Shoreham Nuclear Power Station, i
Unit 1), ALAB-900, 28 NRC (Sopt. 20, 1988), aff'c LBP-87-32, 26 NRC 479 (1987).
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lations.2/
LILCo, however, has failed to present any basis for concluding, as it does, that the Appeal Board erred in inter-preting Section IV.F.1 or in its application of Cection IV.F.1 to the record developed in the Shorehan case.
Egg 10 CFR S 2.786(b)(2)(iii).
Indeed, LILCO never even disputes the Appeal Board's specific factual holdings -- that the exclusion o' ingestion pathway preparedness, school preparedness, and special facility preparedness from the 1986 Shoreham exercise was incon-sistent with the express requirements of Section IV.F.1.
Egg ALAB-900, at 33-43.
Instead, LILCO bases its Petition on what it views as the two principal errors committed by the Appeal Board in ALAB-900:
finding that the NRC regulations distinguish between the require-ments for pre-licensing exercises which must be conducted before licensing above 51 power and post-licensing exercises (Petition at 5-7); and ccncluding that a pre-licensing exercise must test all major observable portions of an applicant's offsite emergency plan.
Id. at 7-8.
We demonstrate below that these alleged Appeal Board errors are baseless.
I.
The Appeal Board Was Correct in Holding that a Pre-Licensino Exercise Must Be of Greater Scope than Subsecuent ExgIcises i
The Appeal Board held that it is clear on the face of Section IV.F.1 that a pre-licensing exercise must be more 2/
The importance of this issue is lessened, however, in this
.ase, since the 1986 Shoreham exercise is technically moot, given tue passage of more than two years since the exercise.
Egg ALAB-900, at 6-9.
complete and broader in its scope than subsequent exercises.
ALAB-900, at 22-23, 25-26; accord, LBP-87-32, 26 NRC at 487-89.
LILCO never explains why it believes this holding is wrong.
Rather, LILC0 merely asserts that the Board should have examined the regulatory history of Section IV.F.1, which, according to LILCO, would have revealed that the NRC intended the scope of pre-licensing and post-licensing exercises to be the same.
Petition at 6.
This LILCO assertion is entirely without merit, however.
First, as a matter of hornbook statutory construction, an adjudicator may only rely upon regulatory history if the regu-lation itself is unclear, making examination into the regu-lation's history necessary.
Even then, the adjudicator cannot utilize regulatory history in a manner which conflicts with the plain meaning of the regulation.
ALAB-900, at 16; ggg Guard v.
HEC, 753 F.2d 1144, 1146 (D.C. Cir. 1985).
The Appeal Board correctly concluded that Appendix E, on its face, draws a clear distinction between the required scope of pre-and post-licensing exercises.
Comoare 10 CFR Part 50, Appendix E, $ IV.F.1 with $ IV.F.3.
The distinctions are numercast "Section IV.F.1 refers only to the requirement for a full participation exercise in the two years before licensing, whereas (Section) IV.F.3 permits both full and partial participation exercises, explicitly staggered over several years."
ALAB-900, at 23.
A pre-licensing exercise is required to test "as much of the licensee, State and 1^ Ji emergency plans as is reasonably achievable s-chout manda-tory public participation.
No such requirement applies to post-lices.ng exercises.
Comoare Section IV.F.1 with Section IV.F.3 gig ALAB-900, at 30-33.
A pre-licensing exercise is rec uired to "include participation of each State anc local government within the plume exposure pathway EPZ and each State within the ingestion pathway EPZ."
No such requirement applies to post-licensing exercises.
Indeed, post-licensing exercises may limit local and State government participation in some instances.
Compare Section IV.F.1 with Section IV.F.3; agg ALAB-900, at 38.
It thus was entirely proper for the Appeal Board -- as did the Licensing Board (agg 26 NRC at 484-85) -- to hold that Appendix E, on its face, imposes different, somewhat more comprehensive, requirements on pre-licensing exercises than on post-licensing exercises.3/
Second, although not necessary, both the Appeal Board (ALAB-900, at 18-19, 21-23) and the Licensing Board (26 NRC at 185-88) reviewed the regulatory history of Section IV.F and found no basis for deviating from the express words of the regulation.
LILCO presents no basis for its belief that the Appeal Board
- e. red in this regard.
Indeed, LILCO never even explains wnat precise portions of the regulatory history allegedly require a different result.
Egg Petition at 6-7.
It may be that the regulatory history of Section IV.F.1 is not as illuminating as 3/
The undisputed evidence in the record of the Shoreham proceeding established the rational bases for the Licensing Board's conclusion, affirmed by the Appeal Board, that pre-(
licensing exercises must be more complete, and broader in their scope, than subsequent exercises.
Thus, for example, prior to a pre-licensing exercise, there is no track record of performance by which to predict whether particular portions of an offsite emergency plan can, in fact, be implemented in an adequate Accordingly, a pre-licensing exercise must be broadly manner.
structured to provide a meaningful and complete test of performance capabilities.
Thereafter, once experience is gained, subsequent biennial exercises can focus on particular areas identified in earlier exercises as having potential weaknesses.
Egg NY Ex.
1, at 24-26.
-4
i some other Commission regulations.1/
Clearly, however, it provides no bases for disagreeing with the Appeal Board's inter-pretation of that regulatory provision.
II.
The Appeal Board Was Correct in Holding that a Pre-Licensing Exercise Must Test All Major Observable Portions of an Offsite Emergency Plan l
The Appeal Board held that the unambiguous language of j
Section IV.F.1 requires that a pre-licensing exercise test all j
major observable portions of an offsite emergency plan.
ALAB-900, at 18-19, 22-23.
LILCO does not dispute the Appeal Board's conclusion regarding the plain meaning of the words of l
Section IV F.1.5/
Rather, LILCO argues that notwithstanding such 1/
Egg ALAB-900, at 18-19, 21-23.
For a more detailed review i
of the regulatory history, agg Governments' Brief in Opposition to Appeal of LILCO from LBP-87-32 (Feb. 26, 1988) at 36-37, 39, i
1 n.37; Suffolk County, State of New York, and Town of Southampton Proposed Findings of Fact and Conclusions of Law on the j
February 13, 1986 Shoreham Exercise (Aug. 12, 1987) at 105-06, j
110-18.
1 3
5/
Section IV.F.1 and footnote 4 thereof require that "the major observable portions" of an offsite plan be tested in an J
exercise before a license can be issued for operation above 5%
power.
The regulation does not say that some or part of the major observable portions muut be tested or that all major observable portions must be tested over a series of exercises.
j Rather, the regulation states that "tha major observable i
portions" are to be tested in a full participation exercise.
The unambiguous meaning of such language, as recognized by the Appeal t
l Board (ALAB-900, at 18-26), is that all major observable portions
)
of a plan must be tested for a pre-licensing exercise to satisfy l
Appendix E.
4 The 1984 amendment to Appendix E supports this interpretation.
The 1984 amendment was prompted initially by a 1982 rulemaking petition which urged a two-year exercise cycle 1
ar.d full participation exercises which "test gli major elements i
of the integrated plans."
47 Fed. Reg. 29,252, col. 3 (1982)
(emphasis added).
The 1984 rulemaking granted this petition.
j 49 Fed. Reg. 27,735, col. 1 (1984); agg ALAB-900, at 18-19.
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i plain meaning, the Appeal Board should have relied upon allegedly contrary FEMA /NRC "p actice" and should have concluded, therefore, that the words in the regulation mean something other than what they say.
Egg Petition at 7-8.
LILCO's arguments are without basis.5/
First, as discussed above, an agency is barred from ignoring the plain meaning of a regulation.
When the NRC attempted to do so in interpreting 10 CFR S 50.47(b)(12), for example, the court struck down the interpretation.
Egg Guard v. NRC, 753 F.2d at 1146.
Second, in considering LILCO's attack on ALAB-900, it must be borne in mind that LILCO does not dispute that critically important major observable portions of LILCO's Plan were omitted from the Shoreham exe cise.1/
Thus, the Appeal Board found --
i 5/
By way of footnote, LILCO also questions whether the Governments should even have been permitted to challenge the compliance of the exercise with Section IV.F.1.
Egg Petition at 7, n.9.
The Appeal Board, however, has properly rejected this LILCO argument on two occasions.
Egg Lono Island Liahtina Co.
(Shoreham Nuclear Power Station, Unit 1), ALAB-861, 25 NRC 129, 139 n.38 (1987); id. at 141, 142 n.6 (Edles, J.,
concurring);
ALAB-900, at 9-13.
1/
The evidence in the Shoreham proceeding is without dispute
[
that the matters omitted from the exercise constituted major i
observable portions of LILCO's Plan.
NY Ex.
1, at 70, 88, 114, 150; agg Tr. 7537, 7673 (Kowleski); 7663-64 (Keller).
Egg also FEMA Ex.
1, at 38, 41.
The evidence of record also documents the importance of testing these portions of a plan.
NY Ex.
1, at 60-61, 66-68, 71-73, 78, 80, 81-82, 83-84, and NY Ex.
2, Att. 6 (describing numbers of schools that exist in the Shoreham 10-mile i
EPZ, the actions that would need to be taken for school children, l
the LILCO Plan provisions regarding schools, the normal emphasis on school testing generally insisted upon by FEMA, and the complexity of protecting school children); id. at 85-86, 92-99 l
(describing numbers of special facilities in the 10-mile EPZ, the need for monitoring and reception centers for special facility evacuees, and the actions that would need to be taken for special facility residents during an emergency, particularly actions by i
LILCO and special facility personnel); id. at 140-44 (describing I
(footnote continued) l i
i. _ - _ - -,
and LILCO does not contest in its Petition -- that school prepar-edness, ingestion pathway activities, and special facility preparedness are major observable portions of LILCO's Plan that l
were not tested at all or sufficiently during the exercise.
1 ALAB-900, at 33-43.
Nevertheless, LILCO argues that the Appeal Board should have elied upon FEMA and NRC guidance documents -- NUREG 0654 and i
FEMA Guidance Memorandum PR-1 -- that call for testing all major i
observable portions of a plan over a six-year, three-exercise cycle.
Thus, in LILCO's view, a pre-licensing exercise may omit major observable portions of an offsite plan.
Petition at 7.
i LILCO is wrong.
The documents relied upon by LILCO are entitled to no deference with respect to requirements for a pre-licensing exercise.
They conflict with the express words of the regu-i lation.
ALAB-900, at 22-23.
Further, there was no evidence that the particular guidance documents in question were adopted in an effort to define under the NRC's regulations what is required to be tested in a pre-licensing exercise.
Indeed, the evidence indicated that the documents were adopted with no direct consid-l eration of Section IV.F.l's require.ments.
E.a.,
Tr. 7513-14, i
i l
7523-24 (Keller); 7523 (Kowieski).
I l
Third, LILCO argues that the Appeal Board's holding i
j conflicts with the NRC and PEMA "practice" of not drawing a l
distinction between the scope of pre-licensing and post-licensing exercises.
Petition at 1, 2.
3, 5,
7.
The Appeal Board f
I considered and correctly rejected this argument, however.
ALAB-(footnote continued from previous page)
Shoreham ingestion pathway EPZ and the LILCO ingestion pathway plan and the range of actions required thereunder).
r j
j i
i l
900, at 24-25.
Such "practice" was entitled to no weight.
FEMA's witnesses -- who included the chief architects of the 1986 exercise -- had limited experience with pre-licensing exercises and had never attempted to interpret Section IV.F.1, even when preparing for the Shoreham exercise.
ALAB-900, at 24; Tr. 7501-02, 7513-14, 7530-31, 7544 (Kowieski, Baldwin, Keller).
- Indeed, they expressly stated that they had an opinion whether the l
exercise satisfied the NRC's regulatory requirements.
Tr. 7524, i
7624 (Keller, Baldwin, Kowieski).
Similarly, the NRC Staff
(
witnese-had virtually no f amiliarity with Shoreham (Tr. 8767-68, 87 ' 1 8782-85, 8787, 8793-97, 8815, 8831, 8847, 8855-56, 8864-67
-tz, Weiss)) and had never before attempted to determine whet..er a given exercise satisfied Section IV.F.l's i
requirements.
Tr. 8790 (Schwartz, Weiss).8/
In these circum-stances, LILCO's plea for "gritat deference" to Staff and FEMA "views" (Petition at 7) must be rejected.
Fourth, LILCO asserts that other exercises, with omissions similar to those at Shoreham, have been found sufficient for licensing and that LILCO should not be held to a more rigorous licensing standard than has been the case at other plants.
Petition at 1-2, 8.
LILCO's arguments were properly rejected by the Appeal Board.
Egg ALAB-900, at 37-38.
LILCO failed to present specific evidence or this matter.9/
And even in its 8/
At a'ay rate, contrary to LILCO's position, the Staf f witnesser testified that a pre-licensing exercise needs to test more objuctives than a subsequent olennial exercise.
Tr. 8832-34 (Schwartz).
9/
LILCO attempted to submit evidence regarding the scope of exercises at other plants and thus to compare the Shoreham exercise to other allegedly "full participation" exercises.
(footnote continued)
P i
Petition, LILCO presents only general allegations, failing to a
provide any specifics regarding particular plants.
Egg Petition at 8.
Further, as the Appeal Board found, a failure to enforce a regulation at one plant cannot excuse non compliance at another l
d plant.
ALAB-900, at 24-25, 38-39.
l i
III.
Conclusion i
LILCO has presented no basis why the Commission should grant 1
l the Petition.
ALAB-900 has brought about no "undesirable change" in the relationship that exists be'. ween the NRC and FEMA, with
{
respect to the design, conduct, and evaluation of emergency l
preparedness exercises.
Egg Petition at 9.
Indeed, a subsequent j
Shoreham exercise has now been held.
Presumably, if ALAB-900 had l
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s t
I (footnote continued from previous page)
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l Because LILCO's evidence was inaccurate, and because LILCO had no l
proper sponsor for its proffered testimony, the Licensing Board l
struck the testimony.
Tr. 6085-93.
LILCO did not appeal this aspect of the Licensing Board's action.
I i
Purther, LILCO is wrong in suggesting that the Shoreham i
l exercise was consistent with FEMA practice at other exercises.
l l
For instance, other exercises have regularly had greater school
(
and special facility participation.
Tr. 7607-09, 7614, 8663 f
j (Kowieski); NY Ex.
1, at 66-70, 100 n.46.
i I f i
t r
e t
such di effects, the NRC Staff -- or FEMA itself M/ -- would have s.ught revies.
They did not.
The Petition should be denied.
Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Haup auge, New York 11788 W
H Herbert H. Brown Lawrence Coe Lanphor Michael S. Miller KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County
&M J 7aA./MX1)
Fabian G. Palomino Richard J.
Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York
/
- l.
hf W
Stephen B.
Latham Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton M/
When FEMA previously objected to the admission of the contentions at issue in ALAB-900, it sought Appeal Board review.
Sig Lono Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-861, 25 NRC 129 (1987).
k Nt r.l ii D tw October 17 1988
'20 DCT 17 P5 '42 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 4p eg <,
0)CKlios, i,cJ Before the Commission M Ahtm
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of GOVERNMENTS' OPPOSITION TO LILCO'S PETITION FOR REVIEW OF ALAB-900 and GOVERNMENTS' OPPOSITION TO LONG ISLAND LIGHTING COMPANY'S PETITION FOR REVIEW OF ALAB-901 AND FOLLOW-ON ORDERS have been served on the following this 17th day of October 1988 by U.S. mail, first class, except as otherwise noted.
Lando W.
Zech, Jr., Chairman
- Comm. Kenneth C. Rogers
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Comm. Kenneth M. Carr*
Comm. Frederick M. Bernthal*
U.S. Nuclear Ragulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Comm. Thomas M. Roberts
- Christine N. Kohl, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board U.S. Nuclear Regulatory Commission John H. Frye, III, Chairman Washington, D.C.
20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 m
Dr. W. Reed Johnson **
Alan S. Rosenthal Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 James P. Gleason, Chairman William C. Parler, Esq.
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Dr. Jerry R. Kline William 2. Cumming, Esq.
Atomic Safety and Licensing Board Spence W. Perry, Esq.
U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
26555 Federal Emergency Management Agency 500 C Street, S.W.,
Room 840 Dr. Oscar H. Paris Washington, D.C.
20472 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Anthony F. Earley, Jr., Esq.
Washington, D.C.
20555 General Counsel Long Island Lighting Company 175 East Old Country Road Hicksville, New York 11801 Ms. Elisabeth Taibbi, Clerk W. Taylor Reveley, III, Esq.**
Suffolk County Legislature Hunton & Williams Suffolk County Legislature P.O. Box 1535 Office Building 707 East Main Street Veterans Memorial Highway Richmond, Virginia 23212 Hauppauge, New York 11788 Mr. L. F. Britt Stephen B.
Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section*
Executive Director Office of the Secretary Shoreham Oppnents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street Washington, D.C.
20555 Smithtown, New York 11787 Alfred L. Nardelli, Esq.
Hon. Patrick G. Halpin New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H.
Lee Dennison Building Room 3-113 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788
d i
MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 l
San Jose, California 95125 Wading River, New York 11792 E. Thomas Boyle, Esq.
Fabian G. Palomino, Esq.
Suffolk County Attorney Special Counsel to the Governor Bldg. 158 North County Complex Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 David A. Brownlee, Esq.
Kirkpatrick & Lockhart 1500 Oliver Building i
Edwin J. Reis. Esq.*
Pittsburgh, Pennsylvania 15222 U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 Mr. Jay Dunkleburger Mr. Stuart Diamond New York State Energy Office Business / Financial Agency Building 2 NEW YORK TIMES 3
Empire State Plaza 229 W.
43rd Street Albany, New York 12223 New York, New York 10036 2
2 Joel Blau, Esq.
Mr. Philip McIntire Director, Utility Intervention Federal Emergency Management N.Y. Consumer Protection Board Agency Suite 1020 26 Federal Plaza Albany, New York a2210 New York, New York 10278 Mr. Frederick J. Shon Adjudicatory File J
Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel Docket 1
Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
. dC5t<4w t cs-R C/d !u.
I vtawrence Coe Lanpher' KIRKPATRICK & LOCKRART 1800 M Street, N.W.
South Lobby - 9th Floor
]
Washington, D.C.
20036-5891 I
i By Hand
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j By Federal Express i
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