ML20195G015
| ML20195G015 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/19/1986 |
| From: | Malsch M NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| TASK-AIA, TASK-SE ALAB-818, SECY-86-180, NUDOCS 8703060109 | |
| Download: ML20195G015 (64) | |
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! ADJUDICATORY ISSUE g June 19, 1986 (Affirmation) Seer-es-lu a .
Tor: The Commissioners l F r o.9 : Martin G. Malsch Acting General Counsel
Subject:
COMMISS:CN REVIEW OF SHCREUAM APDEAL '
BOARD DECIS:Ott ON THE REAL:SM AND IMMATER:ALTY ISSUES (ALAS-818, ,
OCTOBER 18, 1985)
Prior History: SECY-85-391 ('Petitica f or Review of Appeal Board Decision on Shoreham Emergency Planning /Logal Authority Issues ( ALAB-818)')
(Dec. 6, 1985) Cc mission order ( De c . 19, 1965) (tating review of ALAS-616 but deferring briefing): SECY-86-131 ('Ptocedares for Latigation of Shorehan Emergency Planning Issues...') (April 26, 19 rerpose: To evaluate the Appeal Board's re jection in ALAB-818 of LILCO's 'realisn' and
'im.9.ateriality* theories to propose a draft Commission decision reversing the merits l decisions on those theorges, and directing the Appeal Board to reconsider its decision to def er its review of L:LCO's other pending emergency planning appeals. Two najor issues are presented f or Commission decision:
, 1. Where a radiological emerpney plan must of necessity be implemented en part by ,
State and County of ficials who refuse tc < 1 participate in pre-emergency planning.
-- 3A is it ever possible to find that a utility plan provides reasonable 870306010,9 g gg9 assurance that adequate protective p"
- W measures can and will be taken in an e: ergency? l l
Contacts: .
Martin C. '4alsch, OGC, 41465 Michael B. Blume, OGC, 41493 i
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- 2. Do the Commission's regulations require emergency plans to provide for traf fic
. control, e.g., for directing traffic, k-towing disabled vehicles, and providing E
fuel to stranded vehicles?
l Summary: In ALAB-818, the Appeal Board ruled that ,
LILCo's emergency plan was f atally defective
'k as a matter of law, based upon LILCO's presumed Jack of legal authority to control
,[ traffic, to control access to certain areas
- and to alert and inform the public in an emergency. The Board rejected LILCO's argu-ments that 1) its plan was adequate because State and local authorities will respond in an emergency, and 2) most of the functions which LILCO sight not be permitted to perform ,
were not NRC requirements. We attach a draft Commission order reverning ALA3-818, and I remanding to permit LI;co the opportunity to i show that the defects in its plan are not significant.
l Discussion: Background Af ter t iving initially sur. crted the licensing of shorehan in the licensing proceeding, Suf f olk County withdrew it:
support and soved the Shoreham LicensP.g Board to terminate the proceeding on the ground that the NRC could not grant a license for Shoreham in the absence of a government-sponsored emergency plan. The Board denied
' the rotion, reasoning that the agency was requi.-ad to af ford the applicant an opportun-ity to show that its plan was an adequate j
one. The Commission af firmed, adding that the agency was obligated to consider i
a utility-only plan (!!!-83-13,17 NRC 741, 743), and that 'the (emergency planning]
issues do not appear to us to be categor-ically unresolvable." (CLI 83-17, 17 NRC 1032, 1034).
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3 Subsequently, ' tLCO submitted its plan for NRC consideration, and Suffolk County responded with its contentions, among them Contentions 1-10, asserting that LILCO lacks the legal authority to implement certain features of its radiological emergency plan, including the authority t and to inform the public.g Fromcontrol traffic December 1983 until August 1984, the parcies and the Licensing Board operated under an agreement that no evidentiary hearings were required on these ' legal contentions.' Then, in August 1984, LILCO submitted a Motion Disposition on the contentions,{or Summary arguing that It should prevail on these contentions based l
I on three arguments: first, that state and local laws were preempted by federal law to i
the extent that the state and local laws I
deprived LILCo of authority to plan for and implement a radiological emergency plan i ("Preemption'); second, that even if LILCO l lacked legal authority, the stats and the County would respond in a real emergency either by implementing the plan themselves er ,
l by deputiring LI* C0 p3rnonnel to implement ,
the plan ("Realism *); and third, that most of the traffic control and public information 1
- Contentions 1-10 are set forth in full at 17 NRC 958 ff.
2 Summary disposition is used to resolve issues involving no disputed, material facts. i See 10 C.F.R. 5 2.749. ,
3 LILCO's basis f or its realism argument before the Licensing Board was a December 1983 press release by Governor Cuomo stating thet "if the plant were to operate and a misadventure were to occur, the state and county would help to the extent possible
- before the Appeal Board, LILCO's asserted basis was 'the undeniable truth' that in an emergency the State and County would
- respond and would permit LILCO to implement its plan. Appeal 3rief at 45 (June 3, 1985).
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,t functions which LILCO purportedly lacked authority to implement were not NRC require-l
} ments in any event ( *:r, materiality") . '
l The KRC staff and Intervenors o;;esed the motion, and the Licensing Board denied it, j concluding: that LILc0 did not gain via '
preemption the legal authority it otherwise lacked; that even assuming a response to an actual accident by the State and the County, there was no assurance that the response would De other than a6 !.oe and uncoordinated with LILco's actions 7 contrary to the very reason for the emergency planning ter:la- I tions; while few of the actions listed in contentions 1-10 were explicitly required by the regulations, these actions noretheless were necessary to comply with the explicit ;
requirement in section 50.47(b)(10) for plan features which will permit "a range of pro-tective ae emergency;gions' that,the in defectsthe event in of an LILCO's plan were significant that LILCO's plan couldn't be considered an ' adequate interim compensating measure' under section 50.47(c)(1) because there was nothing in the record to indicate that the State or local governments would ever participate in Shoreham emergency planning, and the Board couldn't speculate on what the governments might do if and when Shorenam began full powe. operation. LEP-85-12, 21 NRC 644 (1985). In every importanc respect, the I
4 the Licensing Board found that an uncontrolled evacuation l' would take longer than a controlled evacuation (about 1\ hours more in good weather, about chree hours in inclement weather).
From this it concluded that the range of protective actions was impermissibly restricted because sheltering would be required ir4 some f ast-breaking events, when otherwise evacuation might have been possible, ,
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Appeal Soard in A1AS-818 agreed with the Licensing Board. 22 NRC 651 ('985).$ ;
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LILCO petitioned f or Commission review of j ALAB-818, and the Commission granted the petition but deferred any necessary briefing i
I until the Appeal Board rendered its decision on then-pending Intervenor appeals. Order dated Dec. 19, 1985. Recently, in ALAB-832 I
fMarch 26, 1986), the Appeal Board resolved all remaiate- .ervenor appeals, reversing and remans.ng a few issues to the Licensing Board, but staying the remand until the !
Commission completed its review of ALAB-818 or directed otherwise. Che Appeal Board also i lef t undecided LIuco's appea".s on three emergene" planning issues.
I 5.he Appeal Board added:
[T]he Board properly rejected LILCO's *1mmateriality' {
ar gument .
We recognize that the commirsion's regulations do ;
not spell out the precise manner in which an evacuation is to be conducted if necessary. Nonetheless, the commission 1
has construed its emerg qcy planning regulations to require
' provisions for evacuatit.g the public in times of radiciogical emergencies.' We have likewise observed that the commission's emergency planning scheme contemplates that ,
' emergency evacuation procedures be developed (for the a 10-mile Ep2 ) . LILCO included traffic control as part of its proposed evacuation procedures in light such requirements. ]
We believe that such inclusion was proper. In the contert of this case, at least, something more is needed than an [
aspiration that the public will be able to fend for itself in the event an evacuatien is required. 1 g
ALAB-118, Appeal Board) 22.NRC at 677 (footnotes omitted, emphasis added by the
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Positions of the Parties In .ittachment A we summarize LILCO's appeals g on the realism and immateriality decisions, having agreed with Commissioner staffs to
! leave for a later time review of the preemp-tion issues. Also, Attachment 8 is a draft Memorandum and order which reverses on real-p ism and immateriality, which orders futther hearings, and which directs the Appeal board to recorsider its decision not to complee,e action on pending LILCO appeals.
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OGC ANALYSIS Realism - the Issue As both boards correctly observed, the Commission's energency planning requirements were established to prevent a recurrence of ;
the type of situation that occurred during the TM: accident in 1979, where there was inadequate planning and coordination between the utility and the relevant governments. To the extent that there is no coordination and joint planning between the governments and the ucility, we agree with the Boards that the LILCO plan does not comply, and indeed cagnot conply with some of the Part 50 emergency planning standards. -
But the statutes (e.g., section 5 of Pub. Law 97-415, requiring l NRC consideration of a utility emergency plan) and NRC regula-tions (50.47(c)) provide that f ailure to meet all the standards does not necessarily require license denials applicants may show that the deficienqies are not significant, thst there are ade-quate interim compensating measures, or that there are other compelling reason: to allow plant operation.
The cer. tral issue presented by this paper is whether, as a matter '
of safety, the LILCO emergency plan can ever be accepted under k section 50.47(c), where the Secte and County response to an 1 actual accident would be unplanned, and LILCO is prohibited fron j performing the State or County roles in: ,
(1) guiding traffic; k (2) blocking roadways, erecting barriers in roadways, and channeling traffi: <
(3) posting traffic signs on roadways k.
x (4) temoving obstructions from public roadways, including M ,
towing private vehicles; f <
(5) activating sirens and directing the broadcasting of y' emergency broadcast system messages v d
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, 6 For example, Part 50 requires licensees to demonstrate that G
1 State and local officials 'have the capability to make a public l notification decision pro,mptly upon being informed ... of an '
- emergency ....' App. E, 5 D.J. .
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8 (6) making decisions and recommendations to the public concerning protective actions (7) making decisions and recommendations to the public
'j. concerning protective actions for the ingestion exposu;:e pathways 3 f
(C mak.ing decisions and recommendations to the public 4
oncetning recovery and reentry .
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.ensing fuel from tank trucks to automobiles along
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.sideas and Jrforming accetas control at the Emergen y Operations lenter, the relocation centers, and the EP3 perimeters.
We regar fa.r Shoreham.
this as the critical emergency planning safety issue
'no', If the Commission helieves that the answer must be l then there is little sense in prolonging LILCO's struggle to license Shoreham; the Commission should affirm ALAB-818, '
leavingcurrent under LILCO's preemption argument es the only remaining basis law Cor a full power license (LILCO concedes that its immateriality argument, without realism or preeeption, will not support a full power license). '!
If the answer is *yes' or
'maybe*, then LILCO's realism argument is or may be viable, j I
Realism - Factual Fram>vork I
We agree with LILCO that'the Commission should presure that State and emergency.local officials will act to protect the public in an actual a presumption. Com2.1on sense and State law dictate such The Conferenc 1 Agencies Appropriations bill,9 Report also supperts on the HUD-:ndependent this presu ption.
' While we agree with LILCO on this point, the State and local
' response which standards wouldrequire still beFTanniac.
ad hoe, contravening the section 50.47(b)
Furthet, LILCO doesn't point to evidence of what an ad might actually be, or evidence that would hoc response by the State and County that support a conclusion response. the utility plan could adequately accommodate an ad hoe t The Appeal Board adopted a particularly pes view of the adequacy of an ad hoc response as fellows:jImistic j 7
8.R. Rep. No.99-212, 99th Cong., 1st Sess. (1985).
8 22 NRC 675-676 (fcotnote omitted). .
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. 9 In this regard, LILCO has failed to make any
. demonstration that its plan is amenable to ad hoc adoption by the appropriate governmental unite at the time of an emergency. The inch-thick volume of the transition plan itself, plus two volumes of 1:Fler ent-1:g procedures, each at least two inches thick, and a:othe r , three and one-half inch volu=e, labeled
' Appendix A -- Evacuacion Plan,' do act lend themselves to quick review and implementation if the State or Cr,nty*is called upon to act. The plan establiches a:re than 50 different position titles and as any separate f unctions. It 'is designed to evacuate up to 160,300 residents from a 160-square mile area that is encompassed within an approximately 10-nile radius from the plant. Among the f acilities to be evacuated are three hospitals, eight ma]or nursing and adelt homes, 4:d two correctional f acilities. At other p; ants, extensive coordirnion and rehearsal have been required fcr such a substa:tial undertaking. In short, there is simply no reasonabla basis for assuming that the St.ite or County could realistically step in at the last morent and execute the LI* CO plan. - -
Re a li s." -- t h e Safety Standard Whether !.ILCC can possibly succeed in showing that an ad hoe response by state and local authorities will be ade:pate in the ';
10 areas where LILCO lacks aunbority deoends, of c:grse, en the .
criteria for adequacy. '
Section 50.47(c) provides for licenting, notwithsta: ding '
noncompliance with the standards of sa tion SC.47(b!, unde: three ci r ec=s tanc es : (1) if the def ects are 'not significant's (2) if there are ' adequate interim co=pensating actions", and (3 ) if there are 'other compelling reasons'. The co=missien has never l defined (1), but the term 'significant' can be read broadly to '
g mean 'importan t
- or ' weighty * . It wrold not be unreasonable for l the Coc:tssion to conclude simply that a def ect wht:h did net k prevent a plan f rom proriding adequate prot,ection is 'not U, significant' .
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" Adequate interim compensating actions' have alsg act been defined, but the Cornission held in Indian Point that an interie compensating action to be adequate need not of f er protection d equivale:t to that which would be afforded by a per:anent plan I See, e . 4 #
, consolidated Edison Co. (Indian Peint),
C LI- 8 3G, hRC 1006,~1010 (1963).
10 3 which is in full compliance. Thus LILCO's plan should satisfy C
(2) '.C it 19 both
- adequate", in the sense of adequately protect-ing the public, and ' interim', in the sense of being applicable only for some interval until the State and local governments agree to cooperate. This latter point causes some difficulty, It for the State and County assert that there is no cvidence here that the governments will ever cooperate, other than speculation about their possible actions should Shoreham go into operation, a However, should Shoreham be licensed for full power operat.icn, we
- t. think it reasonable to assume that the governments would at least initiate discussions with '7LCO with a view to some level of b cooperation. Moreover, the governments may change their fs positions sometime during the lacense term. Thus, we do not see any substantial difficulty in calling the LILCO plan interim'.
This would leave "adequacy
- as the principal standard for LILCO's plan under (2).
The ' compelling reasons
- that uould permit plant operation notwithstanding noncompliance vath the section 50.47(b) standards h are not defined, but the NRC may have had in mind national Q security, urgent power needs, or similar ' compelling reasons.
1 Whatever the compelling reascas might be, the Commission presun-ably intended that there still be some minimum.but adequate level of protection in the event of an accident.
r This brief analysis brings us to the issue of what is neant by an
' adequate' plan -- in the section 50.47(c) context. The regula-tions themselves suggest a partial answer. Section 50.47(c) only d
4 r excuses from the 50.47(b) planning standards. There is still the 4
. unexcused and more general requirement in section 50.47(,a) that
'no operating license . .. will be issued unless a finding is made th.t there is reasonable. assurance that adequate protective measures can and will be taken in the event of a radiological i
. emergency.' Thus a plan vitt non-significant detects, or an l interim compensating action, must still provide reasonable assurance that there will be adequate protective measures.10 However, the answer is only Fattial, for the term
- adequate
- appears again in this general emergency planning requirenent.
Thus the root issue becomes can the LILCO plan, with an unplanned
- pd, hoe governmentti response in the ten areas where LILC0 lacks
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authority, provide for ' adequate protective measures .. . in the <
event of a radiological emergency?' l l
! this root question is not answerable as a strict legal matter.
Rather, it presents first of all a question of safety approach or philosophy. There are three conceivable options. l'irst, if as i 10 The Commisdion has stated generally that emergency preparedness is an ' essential aspect
- of protecting the public.
45 Fed. Reg, 5 55403, col. 3, 55404, col.1. .
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i j the come;. sion has stated,11 the fundamente1 philosophy or approach of emergen y planning is prudent risk reductien, and if
- prudent is und=5 stood in the sense of what is reasonable and I, feasible for the u
- ility to acconplish under the circumstances, then LILCO has very likely done pretty much all that it prudently can. To be sure, more could likely be done with governmental cooperation, but this is not LILCO's f ault. If this sort of prudent risk redu; tion is all that underlies the emergency plannir.g rule, then the LILCO plan probably provides for "adequate protective measures".
On the other hand, we might regard as adequate only that degree of prudent and reascnable risk reduction that can ordinarily be achieved with substantial governmental cooperation in planning.
If this is what unterlies the emergency planning rule, then the LILCO plan may f ail, because it will be dif ficult for any utility plan to match what can reasonably and prudently be acconplished with governmental cooperation.
Finally, some of the LILCO plan defects go to the heart of emergency planning -- for example, the ability to notify the public of an accident and advise as to protective actions. In issuing the emergency planning regulations the Ccemission could i have had in mind certain minimum requirements such aa these that would have to be met no matter the feasibility or level of governmental cooperation. The requirement f or ' adequate" protec-tive measures might suggest this approach whereby the public is guaranteed some minimum level of teergency response. However, if some minimum level of protection is required, how can it be that NRC has never specified any mini:c: acceptable evacuation times?
And even under this strict approach, clear criteria are hard to develop. For exanple, if hypothe:teally the lack of governmental cooperation in the LILCO plan is likely to result in several hours delay in the governnental authorities' not:fying the oublic of an accident and recommending preper protective action, is this .- i fatal to the LILCO plan? Is the lack of traffic control f atal, even though the estimated evacuation time is increased by only 1h to 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />? The unplanned nature of ad ho: governmental response -
seems, in general, to cause some (how much is unclear) delay in i ;
responding to an accident. How euch delay is acceptable' ,
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l 1 l 11 Southern Calf fernia Edison Co. (San Onof re). CLI-6 3-10, 17 NRC 528, 533 (1963).
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l conclusion 4 The Commistion first needs to decide what is the fundamental
, safety approach or philosophy. of its emergency planning rule. We see at least three options:
Option A: If the utility does all that is reasonable and feasible under the circumstances to reduce public r:sk, then the plan is adequate. The LILCO plan would very likely pass this test. The public would not be assured any particular minimum level of safety in the sense of reasonably assured minimum dose reduction, but t,te emergency planning rule would no longer provide a, y State or local veto over a nuclear plant. Th e a do .; -
tional protection afforded by governmental cooperat ion would be regarded as highly desirable, but optional if the governments refuse to cooperate in providing it.
Option B: An adequate plan is one which provales all those reasonable and feasible public rink reduction measures that can ordinarily be achieved with governmental cooperation. The LILCO plan, and indeed any utility plan, will face great difficulty meeting this test. As in Option A, the public would not be assured any ,
particular minimum level of safety, but the protection would be greater than that likely to be af fctded by Option A. However, State and local governments have a strong say, and perhaps a virtual veto role over plant operation. Opt!La B reflects the current TEMA and staff approach ar,d the approach of the Boards belew on Shoreham.
Option C- An adequate plan is one which provides reasenable
,- essurance that, in the event of a serious accident,
{ a certain degree of dose savings will be accomplished.
This is the most strict apprcach, but is at odds with i NRC and TEFA practice which does not use preset levels of minimally necessary dose savings. With any reason-
, able standard, the State and local governments will
- have as strong a role as in Option B.
I We are prepared to drif t an order which reflects any of these
{ options, but for purposes of further discussion have assumed that .
- option B is adopted, as it most closely follows current practice.
,5 Assucing Option B, .he issue becones can the LILCO plan accerplish all those ceasonable and feasible risk reduction measures that are usually achieved with government cocpe r a tion ?
We noted that it would be very dif ficult for the LILCO plan to
, meet this test, but is it impossible? The Boards below thought l so. It seems to us that the answer depends on how much leeway one is willing to 5 ve to the LILCO plan.
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Pi f- The ten areas where LILCO's lack of authority causes nonconplience are listed on pages 7-8. They can be broxen F into three categories: (1) traffic control in an evacuations (2) public notification and recommendation on protective measures, such as evacuation; and (3) access control for the Ep:
perimeter, emergency operations center, and relocation center.
In all three areas LILCO has pretty much done all that it can f under the circumstances. But LILCO would have the Commission j simply assume an adequate state and local response. We are willing to assume a response, and we are even willing to assume that the governments would likely try to follow the LILCO plan, i because any plan is better thaa none. But the record does not tell us what the effects of LILCO's lack of authority actually are, except that the effect of the lack of traffic control is on the order of ih to 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> delay in EP2 evacuation. There is no evidence in the record of what an ad hoc response by the State or County might be, or how the LILCO pTan might possibly accermodate an ad hoc respense. For exanple, we don't know how much delay in public nottfacation would result f rom the lack of governmental narticipation in the LILCL ,lan, or hos accars control ..ight be diminished.
We see two suboptions here. The Commission could decide (option B-1) that there should be little leeway in applying Option S, and that the LIL;Q plan must provide protection essen-
- tally equal to that which could be provided with severnment cooperation. This Option 3-1 is the one adepted implicitly by the Boards below. It poses a high standard on the LILCO plan and requires affirming ALAB-813.
If the Commission is willing to allow more leeway, and approve a LILCO plan if it provided similar, but not necessarily equal protection as compared to a plan with governnent ecoperatten (Optien B-2), then the LILCO plan =tght pass muster. Bu: we recommend further hearings to develcp the f acts on exactly how..
the LILCO plan will accommodate an ad hee gcVernment response.**'
We are prepared to draf t an order along the lines of Option B-2, but based on discussions with Commissioner s:af f s, have included with this paper a draf t order along the lines of Optien 3-1, 12 We should nct minimize the difficulties in such hearings.
LILCO may be forced to seek subpoenas to compel the testimony of State and local government of ficials as to what they would do if LILCO went into operation and there was an accident. The officials would very likely resist having to answer such hypothetical questions.
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4 Immateriality LII.CO's immateriality arguaent relater only tr. LILCO's lack of authority over traffic control in the event of an accident. This argument does not address any of the other areas where LILCO cannot implement its plan. In rejecting LILCO's immateriality
, argument, the Boards ruled, as a matter of law, that while traffic control is not mentiontd explicitly in the regulations, it always is required because it preserves a range of protective
- actions in accordance with section 50.47(b)(10), i.e., (vacuation is available to achieve dcse reductions in fast-breaking g accidents. For similar reasons, i.e., because evacuation would not be a practical alternative in some scenarios, the Boards also 1' - decided as a matter of law enat the lack of traffic control was a significant defect. This is not unreasonable but, as a safety pcliev matter, the Commission could decide that while traffic
, control is desirabic, its absence is not a fatal defect since evacuation times are on13 delayed from 1 to 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />.
In our view, the Board's re]ection of LILCO's materiality argument is consistent with their implicit adoptien of Option B-1. If the Commission agrees with Option B-1, then ALAB-818. should be af firmed. If the commission agrees with s Cption B-2, chen the question is whether a delay in LP: evacu-ation o.' from 1 to 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> is too much iceway to give to a utility plan.
l The Commission could decide this more or less intuitively on tha
- basis of the current record. Or the commission could ask the parcies to give mere information on how such delays might actu-ally affect the public. It would be interesting to know for what i range of accidents would a 1%-3 hour delay affect dose reduction, j and by how nuen. In the remand hearings required by Optien 3-2,
, we have asked for this information. ,
l Recommendation: Issue the attached draft Order, which would reverse the Appeal Board's rejection of LILCO's realism and immateriality arguments as a matter of law. This reversal would have the effect of permitting LILCO the opportunity to show that the Commission should grant a full power license under section 50.47(c) notwithstanding the .def ects in its plan.
We also recommend asking the Appeal Board to reconsider its decision not to take action on LILCO's other emergency planning i
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15 appeals. As much of this case should be completed prior to l
- completion of the remand hearing as is feasible. l i
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Martin G. Malsch ;
Acting General Counsel Attachments:
A. Summary of Parties' Arguments B. Draf t Memorandum and Order C. Listing of Relevant Decisions *
'In vitv of their bulk, a complete package of the pleadingt I t
has been provided to SECY. )
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Commisst.oners' comments or consent should be provided directly i
] to the Of fice of the Secretary by c.o.b Monday, July 7, 199f.
Commission Staf f Of fice ecerents, if any, should be submitteed l to the Commissioners NLT Triday, June 27, 1986, with an infor-nation copy to the Cffice of the Serretary. If the paper is '
of such a nature that it requires additiona?. time f or analytical )
review and ecr..ent, the C =missioner s and tre Secretariat should
{
1 be apprised of when comments may be expected. )
i This paper is tentatively scheduled for affirmation at an Open l Meeting durine the Week of July 7, 1986. Please refer to the I appropriate Weekly Commissicn Schedule, when published, for a I specific date and time. '
l DISTRIBUTION:
Commissioners
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Attachment A I
LILCO'S APPEALS We here recite LILCO's arguments in its papers appealing the Licensing Board's decision, the replies to these arguments by the staff and Intervenors, and the Appeal Board's resolution of these l i
issues, Realism LILCO's Arcuments According to LILCO, the decisions below decide the issues, against j it on purely legal grounds, disregarding the quality of the plan ;
and thus reading utility plans out of the Cocaission's rules. As j an example, LILCO cites the Licensing Board's conclusion that
'the provisions of 10 C.T.R. 50.47(c)(1) for adequate interim corrensating measures were not intended to stretch as f ar as ,
L:LCO urges in this. case where no participation whatever f rom state and local authorities can be counted on.' 21 NRC at 694.
l L: LOC argues that the Board's holding would permit only utility plans which fill minor gaps in state and local government partic-ipation, and that this conflicts with the commission's denial of the County's 1963 motion to terminate the proceeding, a motion ;
' based on the absence of any local governrent participation in Shorehas planning. The Cornission there stated that it was .
'cb11 gated to consider a utility plan submitted in the acsence of 4 state ind local government-approved plans . . . .' C L:- 6 3 - 13 , 17 i NRC at 743.
If only minor gap fillers are permitted, asks licensee, then what was the purpose of the provisions in the URC Appropriations Authcrization Acts beginning in 1980 permitting NRC consideration
- of utility plans? The anever, says L1LCo, le that tht Authorizations evidence Congress' intent to permit utility-only i plans, and that no legislation would have been necessary to permit minor gap fillers. The practical effect of the Boards' l
decisions, LILCO continues, is that there never will be an i
' acceptable utili*.y-only plan, because virtually svery state has i
laws simiJ te to those now being interpreted to prohibit
! licenset's implenentation of its plan. Petition for Review at
! 9-10 (11/4/85). '
l i LtLCO also argues that the Board erred by f ailing to presur.e that state and local officiels would fulfill their duties by respond. ,
l ing in an emergency, citing New York Executive Law Article 2.b.
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1 ._ . _ . _ _ _ . .
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i which, LILc0 asserts, requires such response,1 and language in i
the FY 1985 HUL-Independent Agencies Approprigtions Act conference Report f avoring such presumptions Moreover, says LILCO, the Board erred in deciding the summary disposition motion by raising sua sponty the question whether a state and local response, if there wer,e one, would be
} coordinated with LILCO's. 'the only issue raised by Contentions
- 1-10 and by the motien was legal authority. The f actual issue of j coordination was not raised by tne motion or by conter. tion 51-20' but by Contention 92, which was not then before the Board.
However, even if coordination were a proper question, L: Leo asserts that the record shows that the plan is designed to accom-modate previously uncooperative g(ivernment personnel. Appeal Stief at 47.
- gaf f's and Intervenor s ' Arguments Staff and Intervenors oppose LILeo's realism at guments, citing in support of their position New York Supreme Court Justice Geller's decision in cuomo v. ,L,ILco, holding that LILCO cannot under New ;
York law perf orn ,certain key f uncticns of its plan, but rather !
that only the State and County may do so. see No. 84-4615, slip l op, at 18 (reb. 20, 1985). '
Further, argue the staff and Intervenors, the Governor's press release relied upon by applicant is 'ex t ra-record. ' Even assun- l ing that the State and local authorities might themselves respond in an emergency or delegate some f unctions to LILco, the regula- ,
tiens require comprehensive, cooperative, And detailed preplar.-
ning which includes various governmental groups. The current i
l'Lpon the threat or occurrenes of a disaster, the chief l executive 6f any political subdivtsien is hereby authorized and empowered and shall use any and all f acilities, equipment, supplies landl~ personnel *
... it. such manner as may be necessary ot appropriate. ... Section 25, Article 2.b. (emphasis added). .
2
'!!)n its reviev [of emergency plans), TEMA ahould i presume that rederal, Stata and local governments will abide by the legal duties to protect public health and l safety in an actual emergency ...."
H.R. Rep. No.99-212, 99th Cong. ,1st Se ss. , Reprint ed in cong. :
Ree at 15358 (11/13/85). !
3 The Licensing Board decided contention 92 against LILeo; LILco's appeal on it is pending Lefore the Appeal Board. ,
a h
6 51 4
, 3 evidentiary record does not reveal what the nature of a local goveramental response might be, and thus the Board correctly
- denied the moti0n.
As to LILCO's arqueent tha*. the Board shouldn't have considered the coordhation' issue in ruling on the summary disposition motion, staf f argues that LILCo's motion itself raised f actual issues, and that it was necessary for the Board te resolve the coordination question in the course of ruling on the motion, staff and Intervenors also argue that realism and immateriality could have been rejected or, procedural grounds, since LILCO and -
the other parties had litigated since 1983 on .the assumption that LILCO alone would implement its plan. Thus L!LCO's casertion of the realism theory late in the game vae an Atteept to prosecute f ts case on a different theory than that which the parties had 1
' lit; gated, and it was necessary to offer those parties an opper-tunity to submit evidence on the new theory.
,L_! L CO 's R e p l y t o S t a f f a n d Intervenors, first, L:LCO argues, the Governor's press release statement that the St ate and County would respond in an emergency supports a finding in LILCO's f avor on this issue because the Fress release is in the evidentiary record, no one has atte pted to ,f refute it, there's a presumption that governmental officials will j perform their legal duties, and an inference should be drawn h against a party who f ails to produce evidence in his control '
which could ref ute evidernce in the record. '
Second, contrary to the Board 's conclusion, the County's response in an emergency would not be ad hoc and uncoordinated cecause the I County !;xecutive has directed County t?ployees to study the plan l so as to give advice to the County Legsslature. j} ,l cconty employees will be f amiliar with the plan 4;hus relevant I ,g; k
i
'At oral argunent before the Arpeal Board on August 12, /
^
1985, when the County Execucive was at odds with the Legislature over Shoreham, counsel representing the Executive supported this 3 LILCO argurent, adding that County personnel were already f amiliar with plans to deal with natural disasters. Furthernere, I despite Justice celler's opinion that police powers could not be 4 delegated to private companies, Counsel noted as well that the l County charter provides for the appointment of special patrolmen '
in emergencies, and that state law provides for the appointment ;
', in emergencies of special deputy sheriffs. Transcript at 83-68. . (
+
E h,
e Chird, LILCO asserts that it is not prosecuting its case on a theory different from that litigated initially, having sought at the outset cf the evidentiary hearing to litigate several variations of its plan, including a ' principle offsite plan
- i based upon countv, implementation; at the same time, applicant noted that the pian was flexible enough to incorporate county personnel after the onset on an emergency. Appeal Board Reply Brief at 5, note 3 (July 24,1985). Despite LILCO's request, the Board permittsd LILCO to litigate only the LILCO-implenented variation. Id. .
Immateriality i
? LItco's Apoeals As noted above, Intervenors asserted in contentions 1-10 that LI1.00 lacks legal authority to it.tplement certain features of its plan, including controlling traf fic, imposing security measures se the EOC and relocation centera, and alerting and broadcasting instructions to the public. LILCO argu*s that wit.h the excep-tion of the alerting and broadcasting functions, the features mentioned in the legal suthority Contentions are not required by the regulations -- it 's inmaterial that LILCO might lack author-ity to implenent them. Cnus LILCO isn't required to guarantee the best; possible evacuation, especially when the obstacles are beyond 1.trs control.
Staf f and Intervenors ' Arouments staff and Intervenors opposed this argunent on the ground that the inability to impose traf fic control vould impermissibly restrict 'the range of protective actions
- available in an emergency. Moreover, LILCO's plan is based on assertions that these f unctions will be implemented, and if it seeks to delete these functions f rom its plan, LILCO must seeL to litigate a new plan without these features.
Intervenors also asserted that the immateriality theory was essentially factual in nature, and thus required further evidentiary hearings. See PID, 21 NRC at 914.
Curiously, stiff argued that the theory raised only issues of law, but that it had been of fered so late in the proceeding that staf f and Intervenors should be af f orded an opportunity to off er additional evidence to rebut it. Id., 21 NRC at $14-15.
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Shoreham decision
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. , UNITED STATES OF AMERICA NUCLEAR REGl'LATORY Com!SSION COMMISSIONERS:
Nunzio J. f'alladino, Chairr.an
- Thomas M: Roberts
- James K. Asselstine if Frederick M. Bernthal Lando W. Zech, Jr.
.u e
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In the Matter of LON3 ISLAND LIGHTING COMPANY h h Docket No. 50-322 OL-3 (Shoreham Nuclear Power Station, ll L' nit 1)
J,1 ,
I l OECl510N CLI-86 Before us is Long Island Lighting Compai t (LILCO) petition for review of the October 18, 1985 Appeal 8oard decision holding inadequate as a Ntter of lav LILCO's emergency plan for the Shoreham Nuclear Power Plant.
ALA8 818, 22 NRC 651. The Appeal Board based its decision largely on the refusal of New York State and Suffolk County to participate in :3e planning, and c.1 Lli.CO's lack of lee:1 authority to ir.plerent certain features of its plan. For the reasons explained below, we reverse and remand for further evidentiary hearings on LILCO's so called ' realism' and 'rateriality' a rguments. We do not 4 idress tidGittel !"narity^ issues st this tire.' t 4l,...[
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BACKGROUND Af ter having initially supported the licensing of Shoreham, Suffolk County later withdrew its support and moved the Shoreham Licensing Board to terininate the proceeding o.1 the ground that the NRC could not grant a license for Shorehar in the absence of a government sponsored energency plan. The Board denied the motion, reasontng that the agency was required to afford LILCO an opportunity to show that its plan was an adequate one. The Commission affirred, stating that the agency was obitcated to consider a utility only plan,kLI 83-13,17 NRC 741, 743f!n a later order we also /
observed that "the [emer;ency planning) issues do not appear to us to be categorically unresolv&ble.pCLI 8317,17NRC1032,103p. #
Subsequently, LILCO submitted its plan for NRC consideration, and Suffolk rounty responded with its 1'4 pages of 97 contentions. Contentions
- 1-10 asserted that LILC0 lacked the icgal authority to try,lement certain features of its radiological emergency plan, including the authority to control traffic and to inform the public.I From December 1983 until August 1984, the parties and the Licensing Board operated under an agreennt that no evidentiary hearings were required on these "legal cententions." Then, in August 1964 LILCO submitted a Mottoa for Sumary Disposition on the legal
, authority contentions, arguing that it 55ould prevail on these contentions
- for three reasons
- first, that State and local 14w were preecpted by federal )
law to the extent that the State and local laws deprived LILCO of authority
- to plan fer and implecent its radiological emergency plan (' Preemption");
I 1
I Contentions 1-10 are set forth in full at 17 NRf 958 ff, .
$ 3 i
'econd, that even if LILC0 lacked legal authority, the State and the County would respond in a real emugency either by implementing the plan themselves
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or oy deputi:ing LILCO personnel to impleeent the plan ("Rettism") 2 and
. third, that some of the functions which LILC0 purportedly lacked authority to feptenent were not NRC requirements in any event ('!rrateriality").
The NRC staff and Intervenors opposed the enotion, and the Licensing Board denied it, concluding: that LILC0 did not gain via pree-; tion the legal
,e authority it otherwise lacked; that even ar1uming an emergency response by I
the State and the County, there was no assurance that the respense would be other than ad hoe and uncoordinated with LILCO's ses!cns, contrary to tne very reasen for the emer gency planning regulations which require advance plaining; that while few of the actions listed in Contentions 1-10 were explicitly recuired by the regulations, these actions were nonetheless l
- necessary to co.? ply with the explicit reautrement in section 50.4T(b)(10) for
- plan features which will perrit "a range of protective actions' in the event i of an eeergency;3 and that LILCO's plan couldn't be considered an "adequate interim cor;ensating ncasure' under section 50.47(c)(1) because there was i
2 F LILC0's basis for its realism argument before the Licensing Board was a j Dece .ber 1983 press release by Governor Cuono stating that "if the plant were
, to operate and a misadventure were to occur, the State and County would help 1; to the extent possible;" before the Appeal 8 card, the tasis was "the
'> undeniable truth" that in an eNrgency the State and County would respond and would permit LILCO to frplement its plan. A;;eal Brief at 45, (June 3, ./,
l, 1985), 7 The Licensing Board found that an uncentrolled evacuation would take i
. longer than a controlled evacuation (about li hours r>cre in gced weather, about three hours in inclement weather), From this it concluded that the ranja of protective actions was irpermissibly restricted because sheltering would have to be used in some fast breaking events, when otherwise evacuation might have been possible. .
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nothing in the recoed to indica',e that the State or local goverreents would kj ever participate in Shoreham er.ergency planr.ing, and the Board couldn't spec.
- g. .
ulate on what the governments might do if and when anercham began full power y operation. L8P 85 12, 21 NRC 644 (1985)(hereinafter cited as p!D). In every i:
j- fr.portant re,spect, the Appesi Board in ALAB 818 agreed with the Licensing
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leard. 12NRC651(1985).4 ,
- LILCO petitioned for Comission review of ALAB 818, and we grantee the petition but deferred any further action untti the Appeal Beard rendered its decision en then-pending Intervenor appeals. Order dated vec. 19. 1985.
Picently, in ALAS 832 (March 26,1986), the Appeal Board resolved all remain.
ing intervenor appeals, reversing and remanding a few issues to the Licensing Scard but staying the remand until the Comission cocpleted its -eview of ALAB-818 or directed otherwise. The Appeal Soard also lef t undecidta LILCO's appeals on three other emergency planning issues.
The Appeal Guard added that (T]he Board properly rejected LILCO's "irrateriality" argu et.
We recognize that the Comission's regulations do not spell out the l precise manner in which an evacuation is to be conducted if necessary, honetheless, the Comission has construed its energency planning regulations to require "previsiens for evacuating the public in times of radiological emergencies." We have likewise cbserved that the Comission's emergency planning sche"e conteeplates that e"wrgency evacuation procedures be ceveloped (for the 10 mile EFZ). LILCO <
included traffic control as part of its proposed evacuation procedures ;
in light of such requirerents. We believe that such inclusion was p rope r. In the context of this case, at least, something ecre is '
needed than an aspiration that the public will be able to fend for itself in the event an evacuation is required.
ALA3 618, 22 NRC at 6?? (footnotes cetitted, emphasis added by the Appeal Scard) .
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5 Below we ar.6yze LILC0's petition for Comission review on the realism and imateriality cecisions, leaving for a later time review of the legal authority preemption issues. In doir,g our review we have carefully reviewed both Boards' decisions, and all of tht extensive briefs that have been filed with both Boards on the realism and tr.ateriality issues. We are convinced
, that further legal briefing would reveal no new arguments or authorities, and so have not requested additional briefing.
I REALISM LILCO's Arovments
,?
LILCO argues essentially that the 8 ear #
holdingwould as; rove only those utility plans which fill minor gaps in State and local government par-
- ;7 i
ticipation, and this cannot be correct in lig't of the Comission's dental of l the Ccunty's 1983 nction to terminate the proceeding, a motion based on the 7 absence of any local goverdment participation in Shorehan planning. The -
Co rission stated in its dental that it was "eblicated to consider a utility i t plan submitted in the absence of state and local gewernment approved plans m
b '
i .... CL!-83-13,17 hRC at 743 (emphasis added). '
f If only minor gap fillers are pemitted, asks licensee, then what was r
the purpose of the provisions in the hRC Authorization Appropriations Acts 1,j beginning in 1980 pemitting NRC cor. sideration of utility plans? The answer, t
i says LILCO, is that these statutes evidence Congress' intent to remit i E
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utility only plans, and that no legislation would have been necessary to pemit minor gap filters. '
i) li I
6 LILCO also argues that the Board erred by failing to presume that State and local officials would fulfill their duties by responding in an emergency, citing Net York Executive Law Article 2.b. which requires such respo'nse,$ and language in the Conference Report accorpanying the FY 1985 HUD Independent Agencies Appropriations Act favoring such a presumption.
Moreover, says LILCO, the Board erred in deciding the sumary disposition Ntion by raising sua sponte the question whether a State and l Iccal response, if there were one, wr L! Se ceerdinated with LILC0's. The only issue raised by Contentions 1-P c sy the rnction was legal authority.
The factual issue of coordir tion was not raised by the rotion or by Contentions 1 10, but by Contention g2, which was not then before the Board.
However, even if coordination were a preptr question, tha reco:- a ns that the plan is designed to accen cdate previcully uncooperative gove. ;4nt personnel.
0 5ee, e.o., Section 25 of the Executive Law, which provices that "[u)ren
) the threat or occurrence of a disaster, the chief esecutive of any political subdivision is hereby authorized and e pcered to and shall use any and all ;
facilities, equipment, supplies, personnel and other resources of his
- political subdivision in such runner as may te necessary or a
- prepriate to o cope with the disaster or any emergency reseltuig therefron.'
'[!)n its review [of ernergency plans), FEM shoule presu*e that Federal, State and local governments mill abide by their legal cuties to protect public health and safety in an actual eurgency...."-
, r i H.R. Rep. No. 99 212, gSth Cong.,1st Sess., Re:rinted-~ in Ceas. Ree, at 15358 ;
j (11/13/85).
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7 Staff's and Intervences ' Arcs ents Staff and Interveners argue that even assu-ing that tne S'; ate anc 1::a1
! tuthorities might the-selves responc in an se,ergency cr celegate s:re "v c-h
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< l tiens to LILCO, the regulations re:stre comp-thensive, coopftrative', enc t
! cetailed preplanning which includes various goverreental g-oups. De co re-t I i evidentiary record c:es r.et reves? what the rJture of a local cover-re-ti' f response might be, and thus the Board correctly denied the rction.'
l As to LILCO's argy ent that the Board sh:uldn't h6ve consicere: the L
coercinatior issue ir. rulie.; on the su r.ary cisposition rction, sta'f a rg.e that LILCO's action itsO' -aised factual iss es necessaty far the Dar to l
l resolve, one of them beir. :ne coercination westion, Staff and Interven:rs also arg.e that realisn are irr.ateriality W:
) have treen rejected en 9Poct::.,ral gr0Wnes since LllCO 4 d trie otAct';arties t
8 hac 11tisated from Cece..:e '983 to August ISM cn the assur p"ten t'at 1.:C alone *culd tr.ple ent its plan. Tess LILf,0's asserti:r. of thk relip 1
y thtcry late in the ga e was an atte*pt to prosecute its case on a tN:r,r :t'-
I
} ferent from tnat which the parties hat,' litigated, and it was necessa*y *C offer those parties an opportunity te sub*1t e,idence c the new the: y.
' t ILC0's Reply to Staff erd Intenerers first, the utility argwes , the G:verver's press releste statere't t.'.at
'he Stata ar.1 Lounty would rcspond in sti e"4rge9Cy sup; rty a findin; in LILCO's favor on this issue t>e:ause the press release is in the ::viet tiarf record, no one has attected to ref 6te it, the-t's a presumption tlc; go ve n-rental officials will perfor their le f l 7
+ , & tia .s 'M. - o /s, t i. G - -$ '. wgal duties, and as inference N d :e e.'
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s drawn against a party who fails te produce evidence in his control which f could refute evidence in the recced.
Second, LILCO asserts that the County's respense in an emergency would j not be ad hoc and uncoordinated be:ause the County Executive has directed county e.' loyees to study the plan with an eye to giving advice ar.d assis-tance to the County Legislatt.re. Bus relevant county errployees will be familiar with the plan.7 Third. LILCO asserts tha: it is not prosecuting its case on a theory different from that litigated initially, At the outset of the evidentiary hearing, applicant sought to litigate several variations of its plan, includ- 1 ing a "principle offsite plan
- involving County implementation; at the same time, applicant noted that the plan was flexible enough to incorporate county I
personnel af ter the onset on an em gency. Despite LILCO's request, the !
1 Board permitted LILCO to litigate caly ti,e LILCO-teplemented variation.
l At oral argument before the Apx41 Board on August 12, 1985, when the County Executive was at odds with the Legislature over Shoreham, counsel representing the Executive supported this LlLCO argumnt, adding thet County personnel were already familiar with plans to deal with natural disasters.
Furthennore, despite Justice Geiler's opinion that police powers could not be delegated to private coepanies, Counsel noted as well that the County charter
[ Footnote Continued]
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ls Com t s I a on Dec's':n ,
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There f s no dxt: that t*He Comission's emergency planning regulations were generaily 1.3teace: to prevent a recurrence of the situation that arose i shortly af ter the TP2-2 accice'it when, based on the facts as they then appeared, scume eme.pe cy response ws called for but the prior planning and ;
j coo'tinatior betwee' ce utility and local governments proved inadequate.
The energene.r plarrie; standarts in 10 CFR 50.47(b) and Part 50 Appendix E are reemised upon a ti;n leve! of cocrdination between the utility and State l
and lxal gc wernme ts. It sN:wld come as no surprise that without govern-mental coope-ation L:.C has e-countered great difficulty complying with all of tNse deta fled t'a ning staMards.
- k. sever, we ir.te-ced our mies to be flexible. As we have stated be fcet , we a -t legt"y ebliga-M to censider whether a utility plan, prepared witto.t gove--inent c:cceratier , can pass muster. A utility plan might pass muste under 10 CFR E.U(c). Section 50,47(c) provides for licensing not. -
withstanding nonc:rdit ce wie the M 's detailed planning standards under three circuestance': (*} if the defe:ts are "not significant"; (2) if there I are 'acequate interir empensating actions"; and (3) if there are "other compe'Ifng reasons'. Tre decisions below focus on (1) and (2) and we de likes se.
l The measure of si;'Ificance under (1) and adequacy under (2) is the l l
fundanental assergen:y s'anning licensing standard of section 50.47(a) that l
LFoctrete Cortrinuec) i provices for the apxtroent o' special patrolmen in emergencies, and that state law prt:rrides fc' pe appcintment in eeergencies of special deputy ,
sheriffs. Trartscript a: 83-88.
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"no operating Ifeense ... will be issued unless a finding is made that thew
'! is reasonable assurance that adequate protective measures can and will be
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l taken in the event of a radiological emergency." 8st this cnly begins the l
t analysis of a utility plan .for the term "adequate" appears again in this /
general emergency planning requirement. The root question beccees can the !
LILC0 plan provide for "adequate protective measures ... in the event of a radiological emergency?.8 i
This root question cannot be answered without sore discussion of what is I meant by "adequate protective measures". Our emergea.cy plare ing reg.lations .
are an important part of the regulatory framework fer protecting the public health and safety. But they c'iffer in character free nost cf our siting anc engineering design requir nts which are directed at achieving or raintain-ing a minimum level of public safety prctectica. Sy, e . g . , 1 0 C M 10C.11.
Our erergency planning requirements do not require that an ac: equate gian achieve a preset minirum radiation dose saving or a sinimum evacuatie time for the plume exposurt pathway emergency planning zone in the event cf a serious accioent. Rather, they attempt to achieve reasonat,le and feasible dose reduction under the circumstances; what may be reasonable or feasible I for one plant site r.ay not be for another. And, in the past, what is reason-able and feasible in a given case was defined by the cooperative planning l
efforts of the utility and State and local governments. But eat sho.1d we 1 l
O Under section 50.47(c) a compensating action should be "interfr'. We have no difficulty calling the LILCO plan "interim". Certainly LILC0 intends l it as such because it stands ready to cooperate with the governments in preparing a fully coordinated plan. Moreover,Vthere has get t be sore -
likelihood that should $horeham go into operagion, the governments wo.1d seek to teprove the protection of their cittaens by working with Ln.C0 to incrove
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w,.s , its plan or to prepare a better og ,
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@ regard as reasonable and feasible for'Shoreham, where the governments refuse to coopcrate?
In addressing this question the Boards below presumed that the LILCO plan must essentially achieve all that a fully coodinated plan can achieve.
In essence, the Boards defined what is reasonable and feasible for Shoreham solely in terms of the nature of the site and environs without regard for the degree of possible government cooperation. This inexorably led the Boards to rejection of the LILCO plan on the ground that LILCO could not lawfully f
i, accomplish all that cooperating governments might in the event of an accident.
We believe that a little more flexibility is called for by the legal
{
t requirement that we consider a utility emergency plan. It is very unlikely S
that any utility plan could ever pass such a stTict test. We could conceiv- :
ably define what is reasonable and feasible dose reduction for Shoreham solely in tems of what LILCO itself can reasonabiy and feasibly achieve, but
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we are not prepared to do so. Rather, we would approve the LILCO plan if l there was reasonable assurance that it was capable of achieving dose reduc-tions in the event of an accident that are generally comparable to what might be accomplished with government cooperation. And we would approve of the LILCO plan even if scoe protective action options, such as evacuation, were practically foreclosed so long as such foreclosure was confined to a few, very unlikely accident scenarios. With this in mind, we turn to LILCO's
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realism argument.
We assume that LILCO is prohibited frc<n perfoming the State or County roles in the following areas:
(1) guiding traffic; (2) blocking roadways, erecting barriers in roadways, and channeling
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traffic; (3) posting traffic signs on roadways; (4) removing obstructions from public roadways, including towing private veht.cles; (5) activating sirens and directing the broadcasting of emergency broadcast system messages; (6) making decisions and recorsnendations to the public concerning protective actions; (7) making decisions and recormnendations to the public concerning protective actions for the ingestion exposure pathways; (8) making decisions and recommendations to the public concerning i
recovery and reentry; (9) dispensing fuel from tank trucks to automobiles along roadsides; and (10) perfoming access control at the Emergency Operations Center, the relocation centers, and the EPZ perirneters.
Some of these areas, such as making decisions and recom,endations to the public on protective actions, are fundamental to emergency planning.
i However, if Shoreham were to go ireto operation and there were to be a serious accident requiring consideration of protective actions for the public, the State and County officials would be obligated to assist, both as a matter of
,p- / \
law and as a matter of discharging
' 'their Aublic trust. See als'o H.R. Rep, l
- s. s: $Q . :n .. ., 0 '
sn n' * - .
No.99-212, 99th Cong., ist SespSQ Thus, in evaluating the LILCO plan v ' d'
, <..a n / . A g. y '
9:
we believe that we can reasonably assume s;ome "best effort" State and County I N,,f,,
response in the event of an accident. 'I' We also believe that their "best ,. ( ,* ,$- -
, ,,to, effort" would utilize the LILCO plan as the best sour.'e for emergency *
,' ' s , . ~.....
planning infomation and options. Af ter all, when faced with a serious (~.I -
- . 1
, tf.; . l
_' - . ~ - . . n . a* g ,s
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g .
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V. 13 accident, the Sts:e and County est recognize that the LILCO plan is clearly !
- superior to no plan at all.
Nevertheless, we are unwilling to assume, as LILCO would have us, that I l
this Kind of best effort government response would necessarily be adequate as !
we have defined adequacy. In point of fact, how familiar are State and County officials with the LILCO plan? How much delay can be expected in alerting the public and in making decisions and recorrrnendations on protective actions, or in making decisions and recorrrnendations on recovery and reentry, or in achieving effective access controls? The record tells us that an evac-uation W1thout traffic controls would be delayed from If to 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />, but how r
k important is this time delay? Is it important only for a few highly unlikely r accidents, or for a wide range of possible accidents? .
To answer these questions we need more information about the t
?
shortcomings of the LILCO plan in terms of possible lesser dose savings and 4
protective actions foreclosed, assuming a best effort State and County E,
, response using the LILCO plan as the sour:e for basic emergency planning
? infomation and options. Accordingly, we rerand LILCO's realism argument back to the Licensing Board for further proceedings in accord with this '
Decision. The Board should use the existing evidentiary record to the raxi- !
mum extent possible, but should take additional evidence where necessary.9 i !
.' i
'Since LILCO raised factual issues in its surrmary disposition papers, it was entirely appropriate for the Board itself to have discussed them by addressing coordination issues in its ruling. However, given the pleaoings j that have been filed on realism, and the further proceedings directed by this 1 Decision, there ca' be no prejudice to the parties even assuming arguendo i that LILCO's argument rested on some new "theory " not previously disclosed to the parties.
n .
'l 14 l r
j IM4ATERIALITY l As noted above, Intervenors asserted in Cententions 1-10 that LILCO l
lacks legal authority to implement certain features of its plan, including l controJ11ng traffic. LILCO argues that with the exception of the alerting
( and broadcasting functions, the features mentioned in the legal authority
( Content'ons are not required by tha regulations -- it is imaterial that f LILCO might lack authority to implement them.
Staff and Intervenors opposed the innateriality argument principally on i
the ground that the inability to impose traffic control would impemissibly restrict "the range of protective actions" available in an emergency.
Intervenors also asserted that the innateriality theory was essentially factual in nature, and thus required further evidentiary hearings.
Coenission Decision While NRC regulations may make no explicit mention of sone of these emergency planning measures, they may nevertheless be required in order that there be reasonable assurance of adequate prote:tive Wasures, as we have defined them above. LILCO's materiality argument presents issues that are primarily f&ctual rather than legal. The factual issues are subsumed within the scope of factual issues presented by LILCO's realism argument and can be considered by the Board in the remanded proceeding on realism.
e
i l l
- 1 15 t
CONCLUSION l
l In sum, we conclude that LILCO's plan should be measured against a standard that would require protectiva measures that are generally compara-ble, but not necessarily identical, to what might be accomplished with goverreental cooperation. The LILCO plan would be acceptable even if some protective action that might be feasible and reasenable with governmental cooperation are practically foreclosed, so long as this applies cely to a few l very unlikely accidents.
l We also conclude that we need r. ore information from the Licensing Board i
x to decide how the LILCO plan measures up to this standard. In applying addi-tional information to the analysis of the LILCO plan, the Board should assume that the State and County would in fact respond to an accident at Shoreham on !
a best effort basis that would use the LILCO plan as the only available
) comprehensive compendium of emergency planning information and options.
Finally, we direct the Appeal Board to reconsider its deferral of LILCO's other emergency planning appeals in light of this Decision. 1
.it is so ORDERED, For the Comission l Samuel J. Chilk Secretary of the Comission ,
l
)
l Dated at Washington, D.C.
this day of June,1986.
1
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1 Attachment C I I
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f i
< - _ - - - - - , .-w - - , - - - -,..--- . . ,_, - . . - - _ _ . . - - - - - * - . - ~ - _
Pleadings Related To Review of ALAB 818 LILCO's Response To Intervenors' Request Fcr An Extension Of Time And Page limits Including A Motion For Referral To The Cce. mission Or, Alternatively, Severance And Expedited Review Of Legal r Authority Issues. May 13, 1985 l Suffolk County And State Of New York Response To LILCO Motien For Referral To The Commission Or Alternatively Severance And Expedited Review Of Legal Authority Issues. May 15, 1985 l l
LILCO's Brief Supporting Its Position On Appeal From The "Partial l Initial Deci.sion On Emergency Planning" On April I?,1985.
June 3, 1985 I
Brief of Suf folk County And The State Of New York In opposition To LILCO's Appeal from The Atomic Safety And Licensing Board's Partial Initial Decision On E=ergency Planning.
July 11, 1985 l NRC Staff's Brief In Response To Long Island Lighting Ceepany's Appeal From The Partial Initial Decision On Emergency Planning Cn April 17, 1985. July 19, 1985 LILCO's !!otion For Leave To File Reply Brief. July 24,1985 LILCO's Petition For Review of ALAB-318. November 4, 1985 Intervenors' Answer Oppcsing LILCO's Petition For Review Cf ALAB-818. Neverber 14, 1985 f Petition For Review Of Appeal Board Decision Cn Shoreham Emergency N Planning / Legal Authority Issues (ALAD-818). Neverber 18, 1965 I
I.
I .
~ ' ' ' -
- - ~ . , . - , , , _ _ _ _ , _ , ,
l l
OR. ROSS' COMfTvT5 l l \
r Proposal:
. 1 5
- Allow issuance of full-power license eve
- when there is lack of h cooperation by State and/or local goverfrents in development or irplementation of of' site EP.
Provided that:
- 1) non-corpliance could be remedial or adec.ately cortpensated by reasonable State or local government cooperation, 21 good faith and sustained effort by applicant to get coeperation,
- 3) offsite EP includes all effective ineasures to corepensate whid are reasonable, feasible, and take into account of possible State or local response, and a) State or local governrent have been provided with copies ef the p'an and been assured applicant is ready to cooperate.
Special eephasis
- 1) Policy- not new science
- 7) Policy issue--is it essential that we find that serie protective ineasures will be taken, as part of a FPL?
31 Minirur. change
- 4) Inferral rulemaking
- 5) Get FEw.A views during corrent period.
Existing 10 CFR F.47 Para. (c)(1) has some 'scepholes--
"deficiencies...not significant" "adequate unknown compensating actions' "other cepellf ag reasons *
,e ,
Nuggets from 50.47 and Appendix E
.' , (A)h) "adequate protective measures can and will be taken"
,' FEFA: whether State and local erergency plans as adequate (a)(?{
(b)(1 responsibility of State and local organizations assigned.
Principle response organization has staff to respond.
(b)(5) procedures for notification of S&L officials established.
Ib)f6) exercises conducted Appendix E
'i A.8 Identification of State,' local officials
- P Assessment actions--agreed on by State and Local D Notification
- 1. Administrative and Physical means
- 2. Notify StL in 15 min. 58L will determiae whether to activate entire systen
- 3. Exercise with SAL 4 SFL in reredial exercise.
Dese Perspective (see 'igures)
, h' for SST-1, w/o evacuation, can get 200 rem at 5 miles in 2-3 hours For SST-1, in shelter, at 5 miles, probability of exceeding 200 ren is 10
@' percent. Probability is 50 percent of exceeding ?00 rem at 3 miles.
At Zion, at 3 miles, probability is a 50 percent, of exceeding 700 rem, with
" Q' norral activity. Could reduce toa10 percent w/ shelter, essentially zero
, with prompt evacuation.
I* At Surry, at 5 miles, get 70 r1 whole dose in plume. EP can reduce
), I this- 0.
Observation, conclusion See p.14 of papert the new proposed Para F to Section F of Appendix E to Part 50 does not clean up the other portions of Appendix E (Sections A,B,D,forexample).
j
5 l
- p. 5 of paper: states that adequate offstte emergency plannino is feasible, and all other aspects of foregoing criteria are satisfied; what
- dees the mean about Appendix E7 .
- p. 7 of paper: states that regulatory fleribility is warranted for EP--less impertant than ECCS (e.g.) -
No minimum dose savings is established as standard for EP. This is consistent with the bottnm of p. 2 of 0396. However, the last sentence of
- p. 5 should be considered. The recomended planning basis (p.11-13) should t.. re-re a d. Emphasis on pre detemined action.
The principle purpose of the plume exposure EPZ is to provide for substantial reduction in early severe health effects (063 p.10).
Implies mutually supportive 58L planning (p.16).
[
Local governrent plans are particularly important (p.17j). Plans should g not be developed is isolation (p. 70.) Weaknesses can be ccopensated (p.
g 20).
Advance arrangements with S&L by uti'ity is necessary (p. 72).
- Response organizations which receive notifications should have authority and capability to take imediate predetermined actions.
l '
L'tility cannot compensate for lack of predeterminal actions by S&L.
M Little on prudent and feasib?e dose reduction can be acHeved by utility along; nearby residents could shelter (not too effective fr3 mi., gets h
e better w/ distance) but evacuation is unthinkable by utility alone, b '
p.10, bottom para. of paper, speaks of best efforts utility plan for
$j possible S&L cooperation; surely this is speculatative.
l y Su rary:
W l 4
Doses near-in (f3 miles or so) can be life threatening i
'k
- No predetermined actions can be assumed by utility alone, thus no I pro.iected dose savings of significance can be assured Fabi c of 0654 is unwoven !
- Appendix E H d d with inconsistencies I
- This action should not be approved, unless the utility aprees to an analysis that prorept notification directly to affected people (a.,
will result in determined by new prompt evacuate, risk info.,
as directed by keyhole people under withincontrola fewofciles), u lTTTty Iprobably not feasible),
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j . - - . . . . . . i E+ECTIVENESS OF EMERGENCY RESPONSE ACTIONS: ZION )
]
- too PROBABUTY OF EXCEFnNG 200 REM WH BODY
{ j 90 - i EAR _Y CONTAttO,'T FAR_tFIE eo - 1 - ! 70 1. CONTNJE NORMAL ACTMTY ! 2. BASO.04T SHELTER ! eo 3. STMTT EVACUA1XN 1 m AFTm f4ELEASE i i 3 4. sTurr EvAamTxn .s ms serone ns. so w m. cas masmean e ms m ==mme mcu con-= mcu 4o - 30 - 2e - 2 4
- so -
3 - 4 j 1 MLE 5 .4 - 2 3 4 . . . .
, 3 MLES 5 MILES i 10 MLES-1 DISTANCE FFIOM REACTOR i
'80**""t%
i j ,,PROBABUTY CF EXCEt '% 50 re3A WH BODY . 1 { 90 - i 1 2 eo -sens
- m -
3 I ' EN 1 m - M g2 so - m - l 30 - 2 .. i I m - 4 1 10 - 3 o . , , , , , , 4 2 3 4 1 MLE 3 h4_ES 5 h4_ES -10 MLES j DISTANCE FROM FEACTOR 1
! EFFECTIVEhESS OF EMERGENCY RESPONSE _ l ACTIONS: SURRY - 3 190 - E
' WH BODY DOSE TO NDNUJAL N MOPLtJME
} du
, _1 EAR _Y CONTANAENT FAM 2
i m - 1 l 1. CONTNUE NORMAL ,'Orf71TY
- 2. EiASSENT SHELW
- 3. START EVAGRVON 1 FR AFTWt FETEASE so - 4. START EVAQMVON .5 HRS B8 FORE R3.
N Atl. CASES PEFOONS ARE MEDCAT-D 099W couram*Tm nwas e ms nos mww
- 2 y 3o _ ?
- 20 -
4 2
'8 1 4 53 4 i
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- M 2 3
4 - { 3 MLES 5 Mt_ES 10 MLES 20 MLES i asruce scu scTm . an l
possummu's 1 / 1 s [ l . The Froposal For Public Ccmment l t "he grencned rule f af rly set forth tea. general policy l .w ' alternatives and seei s public comment on these basic questions and on the proposed rule. I wculd suppot-t thist spgrosch. H oeder, p.? should l e tt.sgered. The at t empt to draw '
- c. s t a rre t t ens b s t wee . ces a sp ect cf w'1st t".e r egul ati ons recv: r e ei.c other espects treate1 as "really important" is artificatl. I I r. c. 6. ef n o "tse l g h t I t n e s " a nye.c r e 6.h t ch d e d i ner the bounc.tay bete.een asfe and unsaf e - er bwtween reall y important and less infertant. Fsr 4 ample. the Cet..mteften te clearly curre-tly et tne stage where at me, well permit e tentf ed grace pericds ce e.a i i tajer cht.n;es t o ECOS re c.is e enant s the esther e tended perica involves in ccerecting th.. open purge !!na pecblem and the e: t&nrad tira t r. .'r..) . a r.g i n etirre c ti ng the h ydrod y nami c l ea:'s p e c: I s e, t r.de r e t the assertions that FMC w uldn't allow g-ace !
perleds if the neeblem involved containment or the ECCS. The genors! point can be made but shnult less strident. 1 The Undrel,an.; Fecrosed F.ple , 11 A3 *hr, paper p oi n t s c>u t there are two pote9t t al 6.ays to vi ew
. l t,he s "Ject ed erorgency glanning se an e,per.ttal anJeedlent in I
1 "a ca 1.s a t e s .i f t t y " or as "#n tepr.etsnt secored level" the g0per then est T (C- c e me.e n t en whtch way 1t should be vaened and treets t r.15 ap 1 4 at were stsp!> # matttr of ph i l o ser ni c al
- f. e 4 d e ", n e e 6.1 t h .: .i t a relets 5 t e .: M r. : c a l underptnni69 I den't
( Q e :. u . F A r . n .) ur t? ?*e te:hnic.) t a.t ere p} p ta r o g ht p *atweva eve *., e e :s, c. . g e e n d ' i s t e r.1 tefatv ts savent A! f=r t .M t c. Chc:.ve e .ang tree prof f eres r hilcacpPl es. The paper s chc t ce of T.N11 C t c;ht e a a i of der ed wt thcut are as se s p-a nt Of the e1st or safst. Inp7ct of tne chotce.
." ? ..lthe Nn thwart may be a number of di f f ere nt est t enst es
& cort a r,g the t# s (ACCU) recuirer. nts for e * *e r g a n e < r., l a n t i n .; in Es tli e en t rent ent areund # r e a c t e>r (e.an +nd will b$ t a l e n ( c. e to elle* sa.c der F istles under 70.47 a r. d scorcarlate pr:tecttse r***"*e$
3
#:culd te tal4n fer a de't s Je f a ned LF ? a F t 1003 --
t tie D 'r* ccant't at t e mpt to deal wi th t hose r at t enal e s -- e spec t il l . l f tha t * :5n: cal r e t I cinal sis -- cer! > fstel1ty r 1 11. I a n.11 a t I c n a terolA' ten dnae 1 i mi t at t un e' cont rol t the 7,0 *.st l e IFT): *(ic r to 13rIt r* tr.u". Incividual done f r c.i. E b
- e s and s .1.t l e r cencept with l
eiffe*ent ni ust e r e an F L l .'0. . Th* r.r:r.osed r o f t ece!< 6.cccv*e t".ti t "Is e : 3 0... can" unds. i t.h, ci r cua s t ence s pr. s 1.fc s "ros s enst l e I
.:r.ron.:'.
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*r=4:n t.his one r et snn fer i ncrepl ete c3or;9ne, pl annt e; e n! , typo ef "b.pt , tu e en" un ter the c4rcumstar:es te l - e'1(* 4cr t
1 "r es t t v :: 2 e as oren:s" witheit the fvrther enstga a i: ' J u 'b t s d i c a '. l on r e cc.i t r e s f or en e etr.tJen. e ntal a t e eur q.ency p l .s n n s ; t p n o t. need-M 4cr "reasonable o s s tr .i.n c e " i n t *. a e s s a: of t hw ncnp a r t i c i p a t i ce. 1. y the ftatc. wP-c:n't etter f ccm r c> 1 r.ce.r-l e t e p! s nni ng (p e c ti ot:1, less
- 4. 4; ! .a t e 5 a!t- :: #.1 ty f e "r cesenable ee sur *rc t " 14 t h i: r t- .co e ntti r l a nde e. 3eed cause s.4.h as excre t t .
- c c. s t .
- _ - - _ - _ - . . - - - - - - - - - - - - - - - - -- - - - ' ~ -
, ., , ...c .....:
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1
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. types of ressures, in addition te those normelly provided by the licensee, to errpensate for the lack of cooperation in planning by state ard local pvern-nc.ts t.culd include:
(1) aNed plans and procedures detalline cerpensating rnessures; i f :') added personnel to reecrpany arx: advise state and local officials in en ,l I [ retual enerFency;
.i
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\
Y l (3) freilities and equipmnt including vehicles radios, telephone and radiation I rnonitore as recuired by the plan; 1 N) specia! f raining for perrernel frmlunenting ecrpenssting rnensures; I (5) arrangerents includf rv forrelized agrecrents and centracts for supportint- l services; (C) close ccrrunicaticri with rmrbers of public in the EPZ to keep than inforrned ' of the status and provisions for response; (7) providirr periodic notifica'lon of state and loest pverTrent personnel of the details of the ccrrpense.Jry rncetu.*es included in the plan, the arruge-trents included for their invo.'vernt in the event of a rett certency, l and the availability of training; and I (8) offsite exercises that dronstrate implementation of the plan to the extent feasible. l ,
- - _ - ~ _ _ . - - _ . - _ _ . _ - _ _ . - . _ - . - _ _ - - - . - - _ .
l t ll 4 f
!!ov. 19, 1986 f la r ty.
As you finon. I've been assigned to work o.. a rule imp!cnentiner "Option A" in f:ECY-88-120. The fundenental problem, as i see it. is overeociing some of the statanents made by the Connission in 1980 in support of th.t emergency planning rules. You'll find them on pp. 50-SC-43.44.45 in the koseleaf regs. Driefly, the Conmisglon held that offsite (and onsite.) planning are needed for it'e Commission to calvy out its afntutory mandate. If you read this lenruare in light ef the nett tsekfit rule, it would be clear that the Cocniaslen tras invoking the 80. tof(a)(4)fil) exceptfor, for actions necessary to make a "no undue rink" finding. Option A. as f read it, would co!Jide directly with the 1980 rationale. In that offsite preparedness is made "hif bly desirable but optional." This would optional. put offsite planning souarely under tlie brektit rule, and by inst:ing it , Impiles that it would not satisfy the backfft rule's criteria for imposition of the backfit. There is no immediately apparent efsy of so.uarint , j these ti<o vieler of offsite planninr. l
! see tivo options but trould welcone eurgestfon of some others. One is an l attenpt to time the ner' Cuperfund oment *1 ente, which apparently require States I to c'eveloo an emergency response capability for hcrardous fseilf tfes. I ha not yet had a chance to research this option in detail. It t/ould be palatable only if (1) the anerdments extend to reactors and (2) the plannint required could be censtrued as adequate under the Commission's requirements.
A second option would be for the Comnission to repudia te the Ifl0 findings and state that offsite planning is indeed in the "optional backfit" category tie mould amend the rules to State that utilltfes are required to subnit offsite plana (and exerefte them) only where offette entitles ecopera te. 1.'e eculd offer as rationale that (1) offsite plannjng does not r eet the new criteria for backfits and f 2) substantial reins it. cafety have i been made since 1980 in other arers such as fire protection, equipnent o ualiftention . ATtfS. prersurite t thermal shock, human factors, and realntenance. (5 4.. 7e te.% M Hoth of these options would come under hear ft e, ebout any variation of "Option A." I woald be Interested .btit so would just know !f you can think of other approaches or variations on those I hate - tv sd. Bill Shields ec: Dill Olmstea d
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Rulemaking on Emergency Planning Rule ye Por Symbol ' Nov 96 Nov Nov Dec Dec Dec Doc Dec J an Jan Jan Jan
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EER&Ld M E E "IE N *.UD/ M N3E b i i l Cornissioner Asselstine's Response i On two occasions in 1986, I was contacted by Mr. Leonard Bickwit. Mr. Rickwit sened as NRC's General Counsel from 1979 to 1982 and is now an attorney in private practice in Washington, D. C. On these occasions, Fr. mickwit advised me that be wished to discuss an emergency planning proposal on behalf of his nuclear utility clients. Mr. Bickwit also told me that discussion of his proposal necessitated the discussion of the NRC staff's position in engoing reactor licensing proceedings in which enercency planning was a contested issue. In addition, Mr. 9tekwit stated that he was making similar requests to each of the other Comissioners. On both of these occasions, I declined Mr. Bickwit's request because ! l believed it would be inappropriate to discuss with him the rerits o' the l NPC sta'f's pcsition in crgoing NRC adjudicrtions. Last week, I was advised by Mr. William Olmtead, an NRC attorney in our Office of General Counsel who has discussed Mr. Bickwit's proposal with him, that Mr. Bickwit's proposal addresses precisely the same subject as the NRC staff's proposed rule in SECY-87-35: allowing full power nuclear plant operation to begin when there is a lack of State or local government cooperation in offsite emergen:y planning. I understand that the approach being advocated by Mr. Bickwit differs slightly from the NRC staff's approach in that Pr. Bickwit's proposal would simply eliminate the requirement in NRC's regulations (10 C.F.R. 50.47) that there be reasonable assurance that adequate protective measures will be taken in the event of an accident. The NRC staff's preposal would provide for an alternative to this 1
-requirement in the form of a four-part test which focuses on the utility
applicant's efforts to carpeetsatt for the lack of goverent cooperation. In view of the similarity of the Rickwit and NC.C staff proposals and the identity of their subject natter, I believe that wy two brief conversations with Mr. Bickwit fall within the scope of your request. I i 4 I' . i r
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