ML20196H996
| ML20196H996 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/07/1988 |
| From: | Lisa Clark, Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#188-5785 OL-5, NUDOCS 8803140125 | |
| Download: ML20196H996 (53) | |
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57f5 1 00LKETED USNRC l- UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 88 MAR 10 P4 :16
" BEFORE THE ATOMIC SAFETY AND LICENSING APPEAtitBOARD'.Eiany 66r.c g . Euva,
~
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
NRC STAFF RESPONSE TO LILCO APPEAL OF PARTIAL INITIAL DECISION ON THE SCOPE OF THE SHOREHAM EMERGENCY EXERCISE George E. Johnson
- Counsel for NRC Staff Lisa B. Clark Counsel for NRC Staff March 7,1988 22 e f!hM$$o!k$$$ PDR o 3)gg
-. __ - -_ - _____________________ ______________ __________ O
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
NRC STAFF RESPONSE TO LILCO APPEAL OF PARTIAL INITIAL DECISION ON THE SCOPE OF THE SHOREHAM EMERGENCY EXERCISE George E. Johnson
, Counsel for NRC Staff Lisa B. Clark Counsel for NRC Staff March 7,1988
o
-I-TABLE OF CONTENTS Page
_ INTRODUCTION................................................... 1 S TAT EM E N T O F T H E C A S E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ISSUESPRESENTED............................................... 9 ARGUMENT....................................................... 9 A. The Licensing Board Erred in Falling To Determine Whether Scope Of The Exercise Was So Fundamentally Flawed As To Prevut A Reasonable Assurance Finding . . . . . . . . . . . . . . . . . . . . . . . . 9 B. The Licensing Board Misread the Language and Legislative History of Paragraph IV.F.1 of Appendix E to Require the initial NTOL Exercise to include All Portions of the Plan Which Could Reasonably Have Been Tested. . . . . . . . . . . . . . . . . . . 15
- 1. The "As Much . . . as is Reasonably Achievable" Languago Refers To Those Aspects of The Plans Which are Within ,
the implementing the "Major Observable Portions" and the "Mobilization" Requirements Contained in The Footnote Defining A "Full Participation" Exercise. . . . . . . . . . 17
- 2. Contrary to the Licensing Board Decision, there is No Evidence that the Commission Intended To Make initial Exercises More Comprehensive Than Su bseq u e n t Exe rcises . . . . . . . . . . . . . . . . . . . . . . . . . . 20
- 3. Since the Scope of Initial Exercises Has Remained Unchanged, Evidence Of The Commission's Intent in Adopting The Original Requirements Provides Guidance As To The Intent Of Current Requirements For I nitial Exercises . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
- 4. The Board Failed To Give Proper Weight to the Regulatory Guidance And The Practical Construction of Exercise Scope Requirements by FEMA And The NRC Staff. . . . . . . . . . . . . . . . . . . . . . 26
Py
- 5. In Sum, The Board improperly Interpreted
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CLI-86-11 And The Pertinent Regulatory
- Requirements For Judging The Adequacy Of An i ni tia l E x e rc i se . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 C. The Board's Determinations that Omission of Four Aspects of the LILCO Plan from the Exercise Violated the Requirements of Appendix E, Paragraph IV.F.1 Were Clearly Erroneous and S h ou ld be R eve r sed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
- 1. Participation of EBS Station WALK Radio. . . . . . 35
- 2. Participation of Additional Schools. . . . . . . . . . 37
- 3. Testing of Plans for the Ingestion Pa t h wa y Z one . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
- 4. Testing of Communications with Special ,
Facilities and Additional Ambulance and Ambulette Company Personnel. . . . . . . . . . . . . . . . . . '42 f
S. Conclusion................................... 43 y CONCLUSION..................................................... 44 9
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TABLE OF AUTHORITIES COURT CASES Page o
Conne'cticut Light and Power Co. v. NRC, 673 F.2d 525 (1982)....................................... 73 Cuomo v. LILCO, Consol. index 84-4615 (N.Y. Sup.
Ct. , Suffolk County, February 20,1985 (unpublished) affirmed, 511 N.Y.S.2d, 867 (App. Div. 2d Dept.1987),
reversed on jurisdictional grounds, N.Y.2d (February 17, 1988)....................................... 35 Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1 (D.C.Cir. } (en banc), cert denied,
' 426 U.S. 941 (1976)....................................... 23 GUARD v. Nuclear Regulatory Commission, 753 F.2d 1144(D.C.Cir.1985)...................................... 29 LILCO v. County of Suffolk, 628 F. Supp.
6 5 4 ( E . D . N . Y . 19 8 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,36 Norwegian Nitrogen Products v. United States, 288U.S.294(1933)....................................... 29 in re Timber of inwood Forest, 793 F.2d 1380 T5t IC i r . 1 9 8 6T. C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Udall v . Tallma n , 3 80 U .S . 1 ( 196u) . . . . . . . . . . . . . . . . . . . . . . . 29 Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.1984), cert. denied,105 S. Ct.
815 (1985)................................................ 9,10 ADMINISTRATIVE DECISIONS Long Island Lighting Co. (Shorcham Nuclear Power Station, Unit 1), LBP-87-32, 26
. NRC (1987)........................................... passim Long Island Lighting Co. (Shoreham Nuclear
. Power Station, Unit 1), CLI-86-11, 23 NRC 577(1986)................................................ passim
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P,, age, Long Island Lighting Co. (Shoreham Nuclear Power Stat ion, Uni t 1), ALAB-861, 25 FFC 129 (1987) ............................................... 5,6,10,11 Long Island Lighting Co. (Shoreham bbclear Power Station, Uhi t 1), CLI-87-5, 25 BRC 884 (1987) ................................................... 37 Paci fic Cas and Electric Ccripany (Diablo Canyon Nuclear Pcwer Plant, Units 1 and 2) LBP-82-70, 16 POC 756 (1982), a f f i rTned , ALM-776, 19 BRC 1373 (1983) ..........'.................................... ".4,25,26 Southern Call fornia Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),
CLl -8 3 -10 , 17 tRC 5 2 8 ( 19 8 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
[bke Power Ccripany (Catawba NucIear Station, Uni ts 1 and 2), LBP-84-37, 20 BRC 933 (1984),
a f f ' d ALM-813 , 2 2 PRC 5 9 ( 19 8 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . 28 .
Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), AIR -204, >
7 AEC 835 (1974) ......................................... 37, 39 Metropolitan Edison Ccripany (Three Mile Tiil and Nuc l ea r S t a t i on , Un i t No. 1 ) ,
LBP-81-59,14 BRC 1211 (1981) ............................ 26 REGJLATICNS 5 U.S.C. 6 553(b)(3) ..................................... 23 10 C.F.R. Section 2.714 .................................. 3 10 C.F.R. Part 50, Appendix E ............................ passim 10 C.F.R. Section 50.47(a) ............................... 9,16,26 10 C. F.R. Sec t i on 5 0. 47 ( a ) ( 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,12,26,27
. 10 C.F.R. Section 50.47(b)(14) ........................... 19,23,30 44 C.F.R. 350 ............................................ 30
Y
- v-P,_ age MIS LL# ECUS 2A Singer, Sutherland Statutory Construction Sectidn 46.05, 4th ed. ................................... 15 Executive Order 12148, 44 Fed. Reg 43239 (July 24, 1979)........................ 26 45 Fed. Reg. 55402 (August 15, 1980) . . ................... 21,26,28 45 Fed. Reg. 82713 (Decstber 16, 1980) ................... 27 47 Fed. Reg. 29252 (July 6, 1982) ........................ 21 48 Fed. Reg. 33307 (July 21, 1983) ....................... 21 4 9 Fed . Reg . 2 7 7 3 3 (J u l y 6, 19 8 4 ) . . . . . . . . . . . . . . . . . . . . . . . . 21,26,28 5 0 Fed . Reg . 15 4 85 ( Apr i l 18, 19 85 ) . . . . . . . . . . . . . . . . . . . . . . 12,27 ,
- 52 Fed. Reg. 16829 (May 6, 1987) ......................... 17 52 Fed. Reg. 42086 (Noverber 3, 1967) .................... 7 5 2 Fed . Reg . 45 8 66 (Decarbe r 2 , 19 8 7 ) . . . . . . . . . . . . . . . . . . . . 30 PLREG-0 6 5 4 / FEAR-REP- 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,23,25, 27,30,31 FEA% Guidance Memorandtm PR-1 . . . . . . . . . ................... 30 PLREG-0654/FBW REP-1, Rev 1, Supp.1 . ................... 30 i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAF85TY AND LICENSING APPEAL BOARD In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
NRC STAFF RESPONSE TO LILCO APPEAL OF PARTIAL INITIAL DECISION ON THE SCOPE OF THE SHOREHAM EMERGENCY EXERCISE I. INTRODUCTION On December 7, 1987, the O L-5 Licensing Board, appointed to consider and hear contentions on whether the Shoreham emergency exercise revealed fundamental flaws in the LILCO Plan, ruled that the February 13, 1986 exercise of the LILCO offsite plan for Shoreham was too limited in scope, and therefore failed to meet the requirements of 10 C. F. R . Part 50, Appendix E, Paragraph IV.F.1. Partial Initial Decision
("PID"), LBP-87-32, slip op at 2, 51, 61. See CLl-86-11, 23 NRC 577, 581 (1986).
The Licensing Board interpeted the language of Paragraph IV.F.1 of Appendix E - calling for an initial exercise "which tests as much of the licensee, State and local emergency plans as is reasonably achievable
- without mandatory participation" - to require testing of all portions of the LILCO Plan, the testing of which was "reasonably achievable." PlD at 18-19. Examining Intervenors' challenges to the scope of the exercise against this standard, the Board found that Applicant LILCO had failed to
satisfy the cited Appendix E requirements because the exercise omitted four portior.s of the plan , the testing of which was "reasonably achievable." Id. at 50-51.
On January 19, 1988, Applicant filed "Appeal Brief of Long Island Lighting Company on Contentions EX 15 and 16" ("LlLCO B rie f") ,
challenging the Board's admission of contentions EX15 and 16, the Board's interpretation of Paragraph IV.F.1 of Appendix E, the weight given by the Board to agency interpretation of that paragraph, and the Board's holding that the four planning areas, found to have been improperly omitted from the exercise, could reasonably have been tested. On February 26, 1986, Intervenors filed "Governments' Brief in Opposition to Appeal of LlLCO From LBP-87-32" ("Intervenors' Brief").
As set forth below, the NRC Staff supports the LILCO appeal, and argues that the PID should be reversed in all pertinent respects.
II. STATEMENT OF THE CASE The PID which is the subject of LILCO's appeal sought to resolve contentions raised by intervenors, the State of New York, Suffolk County and the Town of Southampton, on the scope of the February 13, 1986 emergency planning exercise conducted by the Federal Emergency Management Agency (FEMA) for the Shoreham facility. The planning for, and conduct o f, the exercise was undertaken under somewhat unusual
. conditions. First, the State of New York and Suffolk County declined to participate in the exercise, leading the NRC Staff to request FEMA to conduct the exercise of the LERO plan with exercise controllers simulating the roles of key State and local officials unable or unwilling to 1
participate. FEMA Ex. 5 at 91. FEMA noted that the refusal of the State and County to participate would prevent FEMA from reaching a reasonable assurance finding. Id. Second, during the planning stages for the exercise, Suffolk County enacted a criminal ordinance making it a crime to participate in the Shoreham exercise. This ordinance was enjoined as unconstitutional by a Federal District Court several days before the start of the exercise. LILCO v. County of Suffolk, 628 F. Supp. 654, 666-67
( E . D . N . Y . 19 86 )
Following the February 13, 1986 exercise, Intervenors requested guidance with respect to procedures to be followed in litigation of the exercise, and the Commission, in CLl-86-11, set groundrules for the admission of contentions based on the exercise. The Commission directed the Licansing Board to admit only those contentions which satisfied the -
normal requirements of 10 C. F. R. Section 2.714 (1) by pleading that the exercise demonstrated fundamental flaws in the LlLCO Plan, and (2) by providing bases which, if true, would demonstrate such fundamenta!
flaws . C Li-86-11, 23 NRC at 581. Fundamental flaws were explained as follows:
Under our regulations and practice, Staff review of exercise results is consistent with the predictive nature of emergency planning, and is restricted to determining if the exercise revealed any deficiencies which preclude a finding of reasonable assurance that protective measures can and will be taken, i.e.,
fundamental flaws in the plan. Since only fundamental flaws are material licensing issues, the hearing may be restricted to those issues.
Id.
- Among the numerous contentions submitted for litigation by Intervenors were contentions EX15 and 16, having many subparts, and
_q_
spanning 23 pages, which alleged, generally, that the February 13, 1986 exercise was so limited that it could not and did not yield valid or meaningful results on implementation capability. . . and did not include demonstrations or evaluations of major portions of the LILCO Plan and the emergency response capabilities of many ,
' persons and entities relied upon to implement the LILCO Plan. .
.. Rather the exercise results were so limited that they demonstrated a fundamental flaw in the scope of the exercise and in the implementability of the Plan and preclude a finding that there is reasonable assurance that adequate protective measures can and will be taken in the event of a Shoreham accident . ..
See LILCO Proposed Findings, August 3,1987, Appendix A at 1-3.
By Memorandum and Order of October 3,1986, the Licensing Board admitted most of contentions EX15 and 16, alleging fundamental flaws based on the scope of the exercise, together with other contentions alleging fundamental flaws in the LILCO Plan as shown by the performance of LILCO's Local Emergency Response Organization
(" LE RO ") .
The Licensing Poard interpreted CLI-86-11 as permitting exercise scope contentions based on assertions that the emergency preparedness exercise itself is so fundamentally inadequate that it cannot be used to make a reasonable assurance finding. This can occur where the exercise is so limited in scope that it does not evaluate what it is supposed to under the regulations. It can also occur where the exercise was conducted in a manner that was so essentially defective that the results cannot be relied upon.
October 3, 1986 Memorandum and Order at 5. Applying this rationale, the Board stated:
. . .if the Commission is to properly exercise its statutory responsibilities, it must act in making its reasonable assurance
- finding on an exercise that is not so fundamentally flawed that it cannot be relied upon. Because the scope of the emergency preparedness exercise and the manner in which it was conducted are raaterial considerations in the ilcensing process, they are matters intervenors may contest..
Id. at 6.
On October 7,1986, the OL-5 Licensing Board was reconstituted. It was this reconstituted Board which considered objections to the October i 3, 1986 order. In ruling on such objections and requests for recdnsideration in a December 11, 1986 Memorandum and Order, the Board adopted a different criterion for contentions based on the scope of the exercise. The Board ruled:
If [the exercise] is found not to comply with the Commission's regulations concerning the scope of a full participation exercise, it may constitute " . . .[a deficiency] which preclude (s) a finding of reasonable assurancr. that protective measures can and will be taken, i.e., (a fundamental flaw) in the plan." CLI-86-11, 23 NRC 577, 581 (1986).
December 11, 1986 Mernorandum and Order at 13. Thus, a contention which merely asserted that the exercise falled to comply with NRC regulations was found to meet the Commission's fundamental flaw standard for admission. The requirement that the exercise itself be claimed to be fundamentally flawed was apparently dropped.
Interlecutory appeal of admission of contentions EX15 and 16 was sought by FEMA, but the Appeal Board rejected FEMA's petition.
A LA B-861, 25 NRC 129, 137-40 (1987). In its decision, however, the Appeal Board did address the litigability of the exercise's scope, stating:
. . . [W]e do not agree with FEMA that the Commission's directive that the board examine the "results" of the exercise foreclosed any review of the scope or design of the exercise itself.
- Such a reading of CLI-86-11 would effectively confer upon FEMA and the NRC staff, which jointly decide the elements to be tes ted , the unreviewable authority to determine that their sampling of observable elements of the LILCO plan was sufficient to satisfy Commission regulations.
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Id. at 139 n. 38. FEMA's petition, however, focused on the admissability of contentions on exercise scope, and did not directly raise as an issue the appropriateness of the standard used in the December 11, 1987 order for admission of a contention on exercise scope. See FEMA Petition for ' Leave to Appeal . . ., December 31, 1986, at 7. 1 The Appeal Board did note, however, that "FEMA's professional judgment as to what elements should be tested at the pre-licensing stage is entitled to substantial deference" but that the "determination of whether the LILCO plan, including the exercise, satisfies the Commission's regulatory requirements rests squarely and exclusively in the hands of the Commission." 25 NRC at 139 n. 38.
At the hearing on contentions EX15 and 16, the Licensing Board accepted not only testimony as to what actually occurred during the exercise - what elements of the plan were exercised and evaluated (and .
their significance) -
but also testimony concerning the administrative practice ct NRC and FEMA in the conduct of emergency planning exercises and the proper construction of the applicable regulations.
The principal area of contention among the parties was whether the Shoreham exercise was a "full narticipation" exercise under 10 C.F.R. 50 Appendix E, Paragraph IV.F.1. Testimony concerning implementation of the regulatory provisions particularly focused on the phrase "major observable portions" In the regulatory footnote defining "full
. participation," and on the requirement that exercises for NTOLs test 1/ FEMA argued that the scope of the exercise was a matter committed solely to the discretion of FEMA, and was not challengable in NRC proceedings. Id.
"as much of the... plans as is reasonably achievable without mandatory public pa rticipaticn . " - Whether the latter requirement imposed an
. obligation to make the initial exercise as comprehensive as possible, notwithstanding other provisions and other guidance, was a major area of dispute. In this connection, the hearing focused upon the applicability and weight to be accorded to FEMA and NRC guidance documents in interpreting what the regulatory terms mean, as well as on the more fact-dependent reasons for , and significance of, omissions in the exercise conducted. This testimony is summarized in the party findings.
LILCO Proposed Findings33-155; Intervenors' Proposed Findings44-202; and NRC Staff Proposed Findings 18-84 In its PID, the Licen.=ing Beard found that Paragraph I V. F .1, as ;
amended in July 1984, made substantive changes in the required scope of the initial and biennial exercises, requiring the initial exercise prior to exceeding 5% of rated power to be more comprehensive than biennial exercises. PID at 19-21. The Board observed that the requirement that the initial exercise consist of full participation by each State and local government within the plume exposure pathway EPZ and each State within the Ingestion exposure pathway EPZ was unique to the initial exercise requirement of Paragraph I V . F .1. Id. at 12. The Board read the amendments to the paragraph in 1984 to have transformed the exercise 2/
Pursuant to the October 3, 1986 Memorandum and Order, at 10-11, challenges to the exercise based on lack of State and local government participation were excluded. See also Appendix E, Paragraph IV.F.6, as amended, 52 Fed. Reg. 476T5 (November 3, 1987), (State and local participation in exercises not mandatory where such governments refuse to participate in planning).
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participation of each State and local government within the two EPZs from being permissive to being required, ld. at 14 n. 8. The Board concluded that the language of Paragraph IV.F.1, providing for "an exercise which testt as much of the licensee, State and local emergency plans as is reasonably achievable without mandatory public participation," so clearly imposed a requirement that the initial exercise be more comprehensive than subsequent exercises, that it was unnecessary to interpret the term "full participation". As a result, the Board determined that the NRC and FEMA regulatory guidance and the prior agency practice was inconsistent with the "clear language of paragraph IV.F.1." and had "no value" as a guide to interpretation. Id. at 19-21 and n.11.
Based on its legal determination, the Board judged the comprehensiveness of the exercise solely against the "as much . . . as is reasonably achievable" criterion, by determining which of the plan <
elements omitted from the exercise could reasonably have been included in the exercise. The Board found that testing of the following portions of the plan was reasonably achievable and should have been accomplished:
- a. transmission of an EBS message to WALK Radio and authentication of that message by WALK Radio;
- b. participation by more school districts in the exercise scenario:
- c. Implementation of protective actions in the
. ingestion exposure pathway in both Connecticut and New York; and
- d. coordination and communication between LERO and special facilities, including a review of the preparedness of ambulance companies relied on by LERO.
Id. at 50. Because the exercise failed to test these parts of the LILCO plan, it was found that LlLCO had failed to comply with paragraph I V . F .1. Id. at 51, 61. The Board did not address in this decision whether the scope of the exercise was so deficient as to itself be fundamentally flawed. 3,/
111. ISSUES PRESENTED The LILCO appeal presents the following issues:
- 1. Did the Board err in falling to determine whether the exercise was so fundamentally flawed as to prevent the making of reasonable assurance findings in accordance with CLl-86-11 and 10 C.F.R. Section 50.47(a;?
- 2. Did the Licensing Board misread the language of Paragraph IV.F.1 of Appendix E, and its legislative history, as requiring that initial exercises for NTOL plants test all portions of the plans which could reasonably be tested?
- 3. Did the Licensing Board fall to give appropriate weight to regulatory guidance and practical construction of ,
exercise scope requirements by FEMA and the NRC Staff allowing testing of all the observable major portions of the plans over a rnultiyear per!cd?
- 4. Did the Licensi.1g Board clearly err in its factual findings that four areas not tested could reasonably have been tested?
IV. ARGUMENT A. The Licensing Board Erred in Falling To Determine Whether Scope Of The Exercise Was So Fundamentally Flawed As To Prevent A Reasonable Assurance Finding in permitting litigation of the Shoreham emergency exercise, the
. Commission noted that under Union of Concerned Scientists v. NRC, 735 F. 2d 1437 (D.C. CI' . 1984), cert, denied, 105 S. Ct. 815 (1985), the t
3/
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See initial Decision, LBP-88-2, NRC (February 1, 1988) for '
BTard's decision on the exercise itself.
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Commission could properly limit exercise litigation to issues which are material to licensing. CLI-86-11, 23 NRC at 581. The Commission then stated that review of exercise results was "restricted to determining if the exercise revealed any deficiencies which preclude a finding of reas'onable assurance that protective measures can and will be taken, i.e., fundamental flaws in the plan . " Id. The Commission therefore reasoned: "Since only fundamental flaws are material licensing issues, the hearing may be restricted to those issues." Id.
In its October 3, 1986 Memorandum and Order ruling on exercise-related contentions, the Licensing Board reasoned that since the exercise of an emergency plan must show that there is reasonable assurance that the plan can and wl!! be implemented (10 C. F. R. Section .
50.47(a)(2)), i.e., there is no fundamental flaw in the plan, an exercise that is so fundamentally flawed that it cannot be relled upon to make such a finding , is itself litigable under CLI-86-11. Id. at 5-6; Long Island Lighting Co. (Shoreham Nuclear Power Station, linit 1),
A LA B-861, 25 NRC 129, 139 n.38 (1987); id. 25 NRC 141-42 (Mr. Edles, concurring): 3e also UCS v. NRC, 735 F.2d at 1447-48. U 4/ While the Applicant correctly argues, at 24, that the language of CLi-86-11 clearly states that what is material about an exercise is whether the review of the exercise results reveals fundamente! flaws '
in the pla n , one must have an exercise of some scope to see if
. fundamental flaws existed. Without an inquiry into the scope of the exercise one cannot meet the Commission's direction in CLI-86-11 of seeing whether "the exercise revealed sny deficiencies which
. preclude a finding of reasonable assurance that protective measures can and will be taken, i.e., fundamental flaws in the plan." Nor would you have an exercise which the Court stated in UCS v. NRC, is to be subject to test in hearing.
However, in ruling on objections to the October 3, 1986 order admitting the exercise contentions, the reconstituted Licensing Board
- strayed from the Board's earlier sound reading of CLI-86-11 and the regulations, and substituted a new and erroneous standard for litigation.
Instead of determining whether the scope of the exercise was sufficient to test whether the plan could be implemented, the Board substituted a standard of judging whether the exercise complied with regulations which ignored reference to plan implementation:
If it [the exercise) is found not to comply with the Commission's regulations concerning the scope of a full participation exercise, it may constitute . . .[a deficiency]
which preclude [s] a finding of reasonable assurance that protective measures can and will be taken, i.e., [a fundamental flaw] in the plan." CLl-86-11, 23 NRC 577, T8T-(1986).
December 11, 1986 Memorandum and Order at 13. The Board ignored the Commission's holding In CLi-86-11, that exercise review is only material to licensing insofar as it may reveal fundamental flaws in the plan, and that hearings were to be restricted to that question b 24 NRC at 581. 6,/
Finding that the exercise failed to satisfy a regulatory requirement, without also finding either that the plan also failed to satisfy the 5/ As noted above, FEMA petitioned the Appeal Board for interlocutory
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review of the admisslor' of contentions EX15 and 16, but grounded its petition on an argument that the scope of the FEMA exercise was a matter committed solely to FEMA's discretion, rather than on the standard for litigation of exercise scope. See FEMA Petition, December 11, 1986, at 7.
6/
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The exercise itself is part of the plan. See 10 C.F.R.
l 50.47(b)(14); Appendix f IV.F. Thus the Commission's fundamental flaw standard app!!es to the exercise as all other parts of the pla n . See A LA B-861, 25 NRC at 139 n.38 (1987);
Memorandum and Order, December 11,1986, at 11.
requirement or that failure to test the plan's provisions made it impossible to determine that the plan could be adequately implemented was error.
Similarly, the Licensing Board's ruling in the PID, that "the February 13, 1986, exercise . . . did not comply with the requirements of 1'O C.F.R. Appendix E, paragraph IV.F.1", without a further finding that such non-compliance was so fundamental as to preclude the exercise from being used to make a reasonable assurance finding, is not material under the CLi-86-11 standard, in CLl-86-11, the Commission clearly stated that the purpose of reviewing exercise results is to enable the Commission to make a finding as to whether the exercise "revealed any deficiencies which preclude a finding of reasonable assurance that protective measures can and will be taken, i.e. fundamental flaws in the plan." 23 NRC at 581. Under the regulations, the Commission's determination as to reasonable assurance is based on FEMA findings on the adequacy and implementability of the plan. 10 C. F. R. Section 50.47(a)(2). This is also made clear by the Memorandum of ,
Understanding Between Federal Emergency Management Agency and l Nuclear Regulatory Commission, 50 Fed. Reg. 15485 ( April 18, 1985):
An interim finding on preparedness will be based on review of currently available plans and joint exercise results and will include an assessment as to (1) whether offsite emergency plans are adequate as measured against the standard and criteria of NUREG-0654/ FEMA R E P-1, and (2) whether the exercise (s) demonstrated that there is reasonable assurance that the plans can be implemented.
. In limiting litigation of issues arising from emergency planning exercises, the Commission clearly indicated that the purpose of such exercises is to !
determine whether the overall finding of reasonable assurance can be made.
l Thus the Board, onder the "fundamental flaw" standard, was to determine whether the Shoreham exercise was so deficient as to preclude Its being used to make the necessary reasonable assurance finding, in addition to seeing whether the exercise satisfied the regulatory req 0lrements. See Memorandum and Order, October 3, 1986, at 5-6.
The Board in applying the fundamental flaw standard should have examined in the context of the entire exercise whether the failure to test the four areas it found not to have been tested precluded making this predictive finding. The Board did not do so.
The exercise was as comprehensive as any conducted by FEMA in that region of the country. See PID at 61. The wide scope of the ,
exercise is shown in the evidence. Twenty-one objectives were tested in the Emergency Operation Ct.nter, three were tested at the Brookhaven Area Office, seven at the Emergency News Center, 10 were tested at staging areas, three were tested at the Emergency Worker Decontamination Facliity and 24 in the field. FEMA EX Exh 1, at 15-19; see also FEMA EX Exh. 5, at 94-105. These provided for the axercise of 26 of the standard 35 FEMA exercise objectives. Id. at 90, 93, 94-104: FEMA EX Exh.1, at 24.
l Despite the comprehensive scope of the exercise detailed in the evidence, the Board faulted the exercise for not including limited subareas involving the transmission and receipt of messages by the l
. emergency broadcast system radio station, participation of additional school districts, actual communications with nursing homes and the knowledge of ambufance and ambulette companies. PID at 50-51, 27-28, 37-40, 49. In addition, the Roard concluded that the exercise should
have included an evaluation of ingestion pathway protective actions. PID 50, 42-44 On this basis it was concluded that the exercise did not meet Commission requirements.
The language defining a "full participation exercise" in footnote 4 to Paragraph IV.F.1 of Appendix E indicates that purported flaws in the scope of the exercise cannot be considered in isolation, but must be.
looked at in the context of the exercise as a whole. As there stated, the w.
exercise is "to verify the capability to respond to the accident scenario."
Thus, again a judgment is to be made as to whether the exercise was broad enough to "verify the capability to respond," not whether each element or subelement which might be in a response was tested. The question is not, for example, whether each and every communication link was tested, but rather whether the communication links identified in the plan were tested, in view of the scope of activities actually tested in the exercise, the failure to test the four areas cited by the Board did not vitiate the exercise. Rather the exercise was of sufficient scope to provide a basis on which to verify the capability to respond in the event of an accident.
The exercise as a wnote provided a basis for predictive findings on whether there was reasonable assurance that protective actions will be taken to protect the pub!!c in the event of a radiological emergency. By falling to determine whether the exercise scope was so narrow that a predictive
. reasonable assurance finding could not be made, the Board committed reversable error.
B. The Licensing Board Misread the Language and Legislative History of Paragraph IV.F.1 of Appendix E to Require the initial NTOL Exercise to include All Portions of the Plan Which Could Reasonably Have Been Tested The Licensing Board determined that Paragraph IV.F.1 requires the initial NTOL emergency exercise to test "as much of the licensee, State and' local emergency plans as is reasonably achievable without mandatory public participation," U notwithstanding language which defined a "full participation" exercise to be one of "testing the major observable portions of the onsite and offsite plans and mobilization of State, local and licensee personnel and other resources in sufficient numbers verify the capability to respond to the accident scenario." [ Emphasis added] On this basis the Board concluded that an initial "full participation" exercise was required to include all elements of the emergency plan and participation of all personnel necessary to test such plan elements if such testing was "reasonably achievable." PID at 19-20 n. 11, 28, 40. In so doing, the Licensing Board misapplied a fundamental tenet of statutory and regulatory construction to read the legislative language in context. 2A Singer, Sutherinnd Statutory Construction Section 46.05, 4th ed. , at 90
("each part or section [of a statutej should be construed in connection with every other part or section"), cited in in re Timber of Inwood Forest, 793 F. 2d 1380,1384 (5th Cir.1986).
In the PID, the Board stated that, rather than attempting to focus on individual terms in paragraph IV.F.1, "It is necessary to understand
. how that paragraph fits into the scheme of the provision dealing with exercises in order to understand the Commission's intent with regard to 7/ PID at 13.
the scope of the exercise required prior to reactor operations in excess of 5% of rated power at a particular site. . . " PID at 11. Thus, the Board attempted to follow the principle of statutory construction cited above to interpret the requirements of Appendix E with regard to emergency exercise scope to achieve a harmonious whole.
The Board reviewed the differences among the five paragraphs in Section IV.F, and concluded that since paragraph IV.F.1 alone uses the terms "as much . . .as is reasonably achievable" and requires full participation of each State and local government within the plume exposure and ingestion pathway zones, "paragraph 1 states requirements for State and local participation in initial exercises which are unique to those exercises. . .and . . . places certain requirements on initial full participation exercises that do not apply to biennial full participation exercises." Id. at 13. Rather than attempting to further interpret the terms "full participation" and "as much. . . as is reasonably achievable" in context, the Board concluded that the language of Paragraph IV.F.1 is "clear" and that such interpretation is unnecessary. Id. at 19. The Board erred in not consideririg 10 C.F.R. 5 50.47 in connection with its interpretation of Appendix E which would have assisted it in understanding both the regulation as a whole and the Commission's intent.
This error also led the Board to ignore consistent contemporaneous administrative construction in the form of Commission, Staff and FEMA guidance documents and practical construction, in particular, the Board ignored the Commission's directions in CLi-86-11 which set out the Commission's purpose in having an exercise requirement.
To the extent the Board did examine the legislative history of Paragraph IV.F.1, it erroneously concluded that the Commission intended, In amending the regulation in 1984, to make the requirements for initial exercises more rigorous than they had been from 1980 to 1984 S ee , Id .
at f7-19. In focusing on the differences between initial and biennial exercises created by the 1984 amendments to Appendix E, the Board overlooked the fact that the requirements for the initial NTOL exercise remained essentially unchanged.
- 1. The "As Much . . . as is Rea:onably Achievable" Language Refers To Those Aspects of The Piens Which are Within the Scope of the Exercise Scenario Chosen To Be Tested in implementing the "Major Observable Portions" and the "Mobilization" Requirements Contained in The Footnote Defining A "Full Participation" Exercise.
Paragraph IV.F.1 of Appendix E to 10 C.F.R. provides:
- 1. A full participation" exercise which tests as much of the licensee, State and local emergency plans as is reasonably achievable without mandatory public participation shall be conducted for each site at which a power reactor is located for which the first operating license for that site is issued after July 13, 1982. This exercise shall be conducted within 2 years before the issuance of the first operatinq license for full power and prior to operation above 5% of rated power of the first reactor, and shall include participation by each State and local government within the plume exposure pathway EPZ and each State within the ingestion exposure pathway EPZ.
" "Full participation" when used in conjunction with emergency preparedness exercises for a particular site means appropriate offsite local and State authorities and licensee personnel physically and actively take part in testing their integrated capability to adequately access and respond to an accident at a commercial nuclear power
. plant. "Full participation" includes testing the major observable portions of the onsite and offsite emergency plans and mobilization of State, local and licensee
. personnel and other resources in sufficient numbers to verify the capability to respond to the accident scenario.
52 Fed. Reg.16829 (May 6,1987).
In determining that the subject exercise did not meet the requirements of Appendix E to 10 C.F.R. Part 50, the Board failed to consider the
- definition of a "full participation exercise" set out in the footnote to this provision. PID at 20, 21. The phrase "as much... as is reasonably achibvable" in paragraph I V. F.1 is a limitation on the term "full participation exercise" which is defined in the footnote.
A reading of all of the relevant language in Paragraph I V. F .1 together reveals that the provision for testing "as much of the ... plans as is reasonably achievable" refers to a "full participation exercise" in which off-site and on-site personnel are involved to test --
- The integrated capabilities of personnel in both areas to respond to an accident
- The major observable portions of the plans, and
- The mobilization of personnel and resources, in sufficient numbers to verify the capability to respond to the accident scenario used in the test.
Thus, the direction to test as much of the plans as is reasonably achievable only requires inclusion of the major observable portions of the onsite and offsite plans, of personnel and resources necessary to verify the capability to respond in an integrated manner to the accident scenario. 8,/ It provides that in testing the major observable portions of
-S/ Intervenors acknowledged the relevance of those elements, concluding, however, that "the major observable portions" meant all
. major observable portions of the plans, l . F. 130. From this conclusion Intervenors reasoned that the "as much" language required initial exercises to be especially comprehensive tests of all major observable parts of the plans. 1.F. 141. While the phrase "the major observable portions" is susceptible to varing interpretations, it clearly does not mean "all observable portions" of the plans.
the plans and in responding to the accident scenarlo, as much of those l aspects of the plans and of those personnel and resources as can reasonably be tested be included in the initial exercise.
Moreover, 10 C.F.R. Sect!on 50.47(b)(14) requires "Periodic exer'cises to evaluate major portions of emergency response
- capa bilities . . . " . There is not a hint of a requirement that all portions of the plan be tested in an actual exercise, b The language of Paragraph I V . F .1, when read with all relevant portions, and in light of Section 50.47(b)(14), cannot be read as requiring the testing of aJ portions of the plans, the testing of which is reasonably achievable, but only testing enough portions to verify the integrated capability of on-site and off-site personnel to respond to the l accident scenario. As a result, the Board's reading of the phrase "as much of the. . . . plans as is reasonably achievable" out of context was f clearly error, b 9/
~
In addition, the paragraph immediately before paragraph IV. F.1 containing the phrase "full participation exercise" describes matters to be included in the plan for exercises. Nothing therein indicates that exercises are to test each aspect of a plan; rather it describes general areas to be tested to show a capability to implement the ;
plan. ,
4
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10/ The Board's test based solely on requiring the test of "as much of the. . . . plans as is reasonably achievable. . . " leads to anomalous results. First, the Board might very well look at an element of the plan which itself is very minor, as it did here with respect to the knowledge of ambu!ance and ambulette companies about
. the plans, and conclude that testing of that element was reasonably achievable and find the exercise in violation of Appendix E, which it did. A test without reference to significance is unworkable since it j draws no distinctions or limits on what must be tested. Second, the Board might find that a major portion of the plan need not be (FOOTNOTE CONTINUED ON NEXT PAGE) ;
e l
l I
l
- 2. Contrary to the Licensing Board Decision, there is No Evidence that the Commission Intended To Make Initial Exercises -
More Comprehensive Than Subsequent Exerciscs.
The Licensing Board relles heavily on its belief thit the Commission In the July 1984 amendments to Appendix E , Pai sph IV, had an unstated intention of making initial NTOL exercises more comprehensive in scope than later exercises. PlO at 14 n. 8,18-19. The Board focuses on the fact that the requirement that operating plants test "as much of the. . . plans as is reasonably achievable without mandatory participation. . ." was eliminated, and on that basis concludes that the ;
scope of initial exercises was to be more inclusive than the scope of subsequent exercises. Id. at 18. However, as the Board appears to ,
concede, the original rule made no distinction between initial NTOL exercises and exercises for operating plants. Id. at 19. The question is j not whether the subsequent exercises are more or less comprehensive ,
than initial exercises, but, rather, whether the Commission altered the scope of initial exercises in its 1984 rulemaking.
The answer is no. Under the pre-1984 rule, "full-scale" exercises were required to "test as much of the licensee, State, and local emergency plans as is reasonably achievable without mandatory public participation" whether conducted prior to, or subsequent to, initial (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) >
l
. tested, so long as it is not reasonably achievable, when its testing ;
is necessary in order to make a reasonat'le assurance finding -- for ,
example, testing of the ability to make protective action recommendations concerning evacuation.
i
licensing. 45 Fed. Reg. 55413, col.1 (1980). The I.lcensing Board has pointed to nothing in the original rulemaking or subsequent amendments which defines "as much . . .as is reasonably achievable" as requiring .
. that all elements of licensee, State and local plans be tested. See PID at 13-1'9. That the 1984 amendments eliminated that requirement for operating plants is not instructive on the scope of initial exercises. UI The history of the amendment shows that the Commission adopted the amendment not to cause initial exercises to be more inclusive than they had previously been, but rather to relax the burden placed upon States with multiple plants, by lifting the requirement that States participate in each annual full participation exercise for each plant in a particular State, and to establish a participation frequency schedule besed on the number of plants in the particular State. See 47 Fed. R eg . 29252 (July 6, 1982), 48 Fed. Reg. 33307 (July 21, 1983), and 49 Fed. Reg. 27733 (July 6,1984). It would have made no sense in that circumstance to retain language requiring that "as much of the . . . State . . . plans as is reasonably achievable" be tested in each full scale exercise at an ,
operating plant where it was no longer required that governments participate in those yearly exercises. Thus, the deletion of "as much of the. . . . plans as is reasonably achievable," had no bearing on the 11/ If anything, the 1984 amendment, by defining "full participation" '
(replacing the phrase "full-scale") , simply makes clearer the fact that exercises are focused on testing the integrated capability to respond and the major portions of the plan, rather than all portions of the plans.
I
scope of " full participation exercises" prior to licensing above St ,
power. NI There is no indication in the text of Paragraph I V. F .1 or the legislative history relied upon by the Board to indicate that the 1984 amehdments substantively increased the scope requirements for initial exercises. EI The existing legislative history concerning the scope of such initial exercises indicates that whatever requirements as to scope of g/ The use of the language stating that "each State . . .within the plume exposure pathway EPZ and each State within the ingestion exposure pathway EPZ," did not increase the scope of initial full participation exercises. See PID at 14 n. 8. That language only defines who is to take part in the exercise, no matter what its scope. The original Paragraph IV.F.1 stated that State participation in both small-scale and full-scale exercises "shall include participation by appropriate State and local government agencies as follows:. . .a full-scale exercise which tests as much of the licensee, State and local emergency plans as is reasonably achievable . . .[for each NTOL site } . . .which will enable each State and local government with the plume exposure pathway EPZ and each State within the ingestion pathway EPZ to participate." 45 Fed. Reg. 55413. Since participation of States in the plume and ingestion EPZs was mandatory under the original rule, the 1984 revision cannot have made participation of States in initial full participation exercises any fuller.
H/ The Federal Register notice proposing the relaxation of requirements for State and local government participation stated that "If all major elements on the emergency plan are performed in a satisfactory manner during the annuti exercise, a finding may be made that another full participation exercise with State and local participation
. would not be required for a period of up to two years." The implied negative of this statement is that if not all major elements were tested in the annual exercise, or some elements tested did not
. yield satisfactory results, the annual participation requirement would not be waived. While not conclusive. this language is completely consistent with the interpretation of exercise requirements followed by the Staff and FEMA.
initial exercises as existed under the original rules continued in effect. b
- 3. Since the Scope of initial Exercises Has Remained Unchanged, Evidence Of The Commission's Intent in Adopting The Original Requirements Provides Guidance As To The Intent Of Current Requirements For Initlai Exercises The Commission noted upon adoption of the 1984 amendment to the subject regulation that, while the footnote reference to NUREG-0654 was taken out of the regulations, such deletion "will not effect the use of that document as a guidance document for emergency planning." 49 Fed. Reg. 27733. In the original 1980 rulemaking by which the emergency planning regulations were adopted, the Commission included a footnote in Appendix E noting that ti.a objectives in Section 50.47(b) were "addressed by specific criteria in NUREG-0654. . . " indicating Commission approval of the guidance contained therein for complying with Section 50.47(b). As noted above, one of the criteria addressing the Section 50.47(b)(14) requirement for peric,dic exercises was criterion N.1.b., which contains the following provision:
An exercise shall include mobilization of State and local personnel and resources adequate to verify the capability to 14/ Had the Commission intended to increase the scope of the inittai exercise it would have had to give notice of that change in the notice of proposed rulemaking. 5. U.S.C. 5 553(b)(3) . A failure to
. do so would render an amendment to expand the scope of the exercise void. Connecticut Light and Power Co. v. NRC, 673 F.2d 525, 533 (1982); Ethyl Corp. v. Environmental Protection Agency,
. 541 F.2d 1, 48 (D.C. Cir.) (en banc), cert. denied, 426 U.S. 941 (1976). Therefore the amendment should not be interpreted, as the Licensing Board did, to expand the scope of the initial exercise required in the pre-198ti regulation.
respond to an accident scenario NI requiring response. . .
The scenario should be varied from year to year such that all major elements of the plans and preparedness organizations are tested within a five-year period. . .
Thus, while the language of Paragraph IV.F.1 does not explicitly set out ,the scope of an initial emergency planning exercise, a reading of the paragraph in light of the Ccmmission guidance referred to upon adoption of the regulation shows that the Licensing Board was incorrect in concluding that the paragraph requires testing of all portions of the plans.
Moreover, additional evidence may be found in a previous NRC decision which bears directly on the Commission's original intent with I
respect to the scope of full-scale (later changed to full participation) exercises. E in Pacific Cas and Electric Company (Diablo Canyon '
Nuclear Power Plant, Units 1 and 2) LBP-82-70,16 NRC 756, 789, 843-845 !
(1982), affirmed, ALAD-776,19 NRC 1373 (1983), affirmed, CLl-84-13, 20 NRC 267 (1984), the Licensing Board noted:
Joint Intervenors' perceptions of deficiency in the 1981 exercise rested principally on items they think should have been included, but were not.
Id. at 789. Among the challenges to the scope of the exercise in the ;
Diablo Canyon case, was the tallure to sound sirens, which had not been installed by the time of the exercise, and the failure to test the backup 15/ This particular language now appears in footnote 4 to Para. IV.F.1,
. again indicating that the purpose of the exercise is to verify response capability rather than test each item required to be in an emergency plan.
~
16/ The Licensing Board was incorrect in stating that "[t]he issues ,
raised by these contentions present questions not previously resolved in an adjudication." PID at 2. '
t
notification system. Id. at 789-790. The Intervenors also challenged the lack of participation of all cities within the State Basic Emergency Planning Zone. Id. at 790, 843-844, in answer to these contentions, the Board gave decisive weight to the guidance of NUREG-0654:
' Section N of NUREG-0654 suggests that the scenario for emergency exercises should be changed from year to year such that all major elements of the plans and preparedness organizations are tested within a five-yea r period . We ,
therefore, do not take the lack of participation of several cities within the State BEPZ in the first exercise to be a serious defect in the planning for that exercise.
16 NRC at 790. Similarly, the Board concluded The variations in exercise scenarios prescribed in Par. N of NUREG-0654 will permit additional testing of capabilities in future years.
Id. at 844-845. As a result, the Board found that a failure to test all elements in an emergency plan in an exercise including the siren system and other items did not preclude finding that the "exercise reasonably tested Applicant's and the locel and State organizations' capabilities for responding to an emergency at Diablo Canyon." Id. at 790.
Although the Diablo Canyon decision applied the requirements for near-term operating license exercises in effect prior to the 1984 amendments, the case shows that the original requirements as to scope of emergency exercises did not require the testing of all portions of the licensee, State and local plans at the initial exercise, but only those necessary to provide a basis to verify the capability to respond. The l
. guldence in NUREG-0654, Section N.1.b, which that Board relied on to conclude that the exercise was to verify the capability to respond, but not necessarily test each element of the emergency plan, was, as stated
above, explicitly continued in the Statement of Consideration accompanying the 1984 amendments. 49 Fed. Reg. 27733.
The Diablo Canyon decision clearly supports the view that the original requirements as to scope of emergency exercises did not require the ' testing of all portions of the licensee, State and local plans at the initial exercise in order to make the necessary predictive finding of implementability. Since the 1984 amendments did not increase the requirements for initial exercise scope, the Diablo Canyon case provides important precedent that not all portions of the plans are recuired to be included within the scope of the initial NTOL exercise. 3
- 4. The Board Failed To Give Proper Weight to the Regulatory Culdance And The Practical Construction of Exercise Scope Requirements by FEMA And The NRC Staff.
In upgrading its emergency planning regulations in 1980, the Commission created a scheme for review fact-finding based on Applicant-submitted State and local emergency plans, giving the Federal Emergency Management Agency primary responsibility for such review. 45 Fed. Reg. 55402 (August 15, 1980). Under 10 C.F.R. Section 50.47(a)(1), and (2) as amended, the NRC bases its overall findings of reasonable assurance 4 on FEMA's review and findings as to whether offsite plans aco adequate ,
and whether there is reasonable assurance that the plans can be i
! Implemented. This scheme, which was directed by Executive Order 12148, 44 Fed. Reg. 43239 (July 24, 1979) was further implemented by a Memorandum of Understanding (MOU) which specifically provides for FEMA f
I
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17/ Cf. Metropoht.:n Edison Company (Three Mile Island Nuclear Station, Unit No.1), LBP-ei-59,14 NRC 1211,1695 (1981).
i
- - . ~ ._
, to make findings on plans and to provide planning guidance in conjunction with the NRC. 45 Fed. Reg 82713 (December 16, 1980).
- The 1980 MOU states - that "FEMA and NRC will cooperate in determining exercise requirements for joint licensee, State, local and Federal agencies and will jointly observe and evaluate such exercises.
NRC and FEMA will jointly agree upon a set of exercise scenarios from which the scenario for a particular exercise may be selected." Id. at 82714 As updated, 50 Fed. Reg.15485 (April 18,1985), the Memorandum provides that FEMA and the NRC are to "cooperate in determining exercise requirements for licensees, State and local governments." Id. at 15487. Recognizing the need for an integrated approach to emergency planning, FEMA and the NRC have provided technical guidance on developing and implementina emergency plans in the joint regulatory guide, N U REG-0654 / FEMA-RE P-1. FEMA provides additional technical information in periodic Guidance Memoranda which are reviewed by the NRC Staff before promulgation. 50 Fed. Reg.15488.
Because of FEMA's responsibilities in emergency planning, the Commission gives great weight to FEMA's views on the need for and adequacy of specific planning measures. See Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),
CLi-83-10, 17 NRC 528 (1983). In fact , findings by FEMA on the adequacy and implementability of emergercy plans constitute a rebuttable presumption in NRC proceedings under 10 C.F.R.
5 50.47(a)(2). Since NUREG-0654 embodies the views of FEMA and the NRC Staff on how to satisfy the regulatory standards for emergency preparedness, it is also afforded "considerable weight" by licensing
boards evaluating emergency plans . Duke Power Company (Catawba Nuclear Station, Units 1 and 2), LBP-84-37, 20 NRC 933 (1984), a ff'd ALAB-813, 22 NRC 59 (1985). El This principle was recognized in this
- case by the Appeal Board when it denied FEMA's request for interlocutory revi'ew . While the Appeal Board found that the determination of whether LILCO's plan satisfied the regulatory requirements was exclusively within the auspices of the Commission, it also noted that the professional judgment of FEMA as to testing at the prelicense stage was entitled to substantial deference. ALAB-861, 25 NRC at 139, n.38.
The deference accorded to FEMA's judgment in this realm is predicated on the agency's unique expertise and familiarity with the practical aspects of formulating, testing and evaluating offsite emergency plans, in recognition of the value of practical experience in construing administrative statutes and regulations, Federal Courts have given considerable deference to agency interpretation and p ractice ., The Supreme Court has directed that when a statute is indefinite on a subject, consistent and generally unchallenged administrative practice may not be overturned except for very cogent reasons. Administrative practice is given "peculiar weight when it involves a contemporaneous construction of a stelute by the men charged with the responsibility of setting its m:chinery in motion, of making the parts work efficiently and 3/ in promulgating the emergency planning regulations in 1980, the Commission stated that the specific regulatory requirements in Section 50.47(b) were "addressed by specific criteria in the NUREG document. See, 45 Fed. Reg. 55402 (Appendix E to Part 50, footnote 4). Although the Footnote was later dropped, the Commission at the same time reasserted its approval of use of NUREG-0654. 49 Fed. Reg. 27733 (July 6,1984).
. , -r -n. - - - - -
smoothly . . . " Norwegian Nitrogen Products v. United States, 288 U.S.
294, 315 (1933); Udall v. Tallman, 380 U..S.1 (1964).
- Contrary to this well-established principle, the Board in this case, task of interpreting general regulatory language, faced with the als egarded uncontrover'ad evidence of the practices and interpretation of the Commission, its boards, FEMA and the NRC Staff when determining PID at 20, the regulatory requirements for emergency plan exercises.
footnote 11 (con't) . As discussed above, the Board interpreted the general terminology "as much of the ... plans as is reasonably achievable" in isolation from other terms incorporated by footnote into the same section to find that an initial full participation exercise must test all reasonably achievable portions of the plan. Finding the language and legislative history to "clearly" support such reading of the regulation, the Board dismissed the Commission's statement in CLI-86-11 and evidence of the practices followed by FEMA and the NRC Staff as of "no value" since it could not reconcile practice with that reading of the regulation.
For reasons enumerated earlier, the regulatory language involved is not clear on its face. UI Therefore, the Board's failure to consider the 3/ In fact, the regulatory provision contains ambiguous language which was given very different interpretations by the parties involved.
Because the provision coes not have a clear meaning, this case is distinguishable from CUARD v. Nuclear Regulatory Commission, 753 F.2d 1144 (D.C. Cir. 1985), in that case, the Court of Appeals recognizad that a high degree of respect should be afforded to agency interpretation as long as it did "no violence to the plain meaning of the provision." 753 F.2d at 1149.
interpretation of FEMA and the NRC Staff, much less accord it "considerable weight," was erroneous. El The practice of FEMA and the NRC Staft in conducting and evaluating emergency exercises was never a subject of serious dispute in this' proceeding. The specific guidelines formulated by FEMA and the NRC Staff are contained in Section N of NUREG-0654 and FEMA Guidance Memorandum PR-1. U# Section N of NUREG-0654, provides criteria for evaluating compliance with the Section 50.47(b)(14) requirement that "periodic exercises are (will be) conducted to evaluate major portions of emergency response capabilities..." Celterion N.1.b specifies that the exercise scenarlo "be varied from exercise to exercise such that all major elements of plans and preparedeness organizations are tested within a six-year period." NUREG-0654/ FEMA REP-1, Rev 1, Supp. 1, See 52 Fed. Reg. 45866 (December 2, 1987). Similarly, Guidance Memorandum PR-1, provides that the scenario should be varied from exercise to exercise so that the major elements of the plans and preparedness organizations are tested within a six-year period. This period begins with the first joint exercise involving the utilities as well as the State and local governments; i.e., the initial licensing exercise (GM PR-1, at 2).
Incorporated by reference are 35 standard exercise objectives which encompass the major observable elements of the plan. (Memo from Dave 20/ lt also could be argued that FEMA's views on the adequacy of the exerc!se should be accorded a "rebuttable presumption" pursuant to
. 10 C.F.R. Section 50.47(a)(2). See n.5, supra.
21/
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LILCO EX Exh. 12 Attach. E, at 2, entitled "Policy on NUREG-0654/ FEMA-REP-1 and 44 C.F.R. 350 Periodic Requirements."
p McLoughlin to the FEMA Regional Directors and Acting Regional Directors dated August 5,1983. LILCO EX Exh.12, at Attach. F.)
Consistent with those regulatory guides, FEMA testified that, in practice, no distinction had ever been made between operating plants and NTOLs with regard to the scope of exercises of emergency plans, Tr.
7622 (Baldwin, Keller). For all plants, FEMA stated that the 35 standard objectives were evaluated in the course of exercises performed over a six-year cycle, not during any one exercise. Tr. 7513 (Keller) .
Regarding the Shoreham exercise in particular, FEMA testified that every attempt was made to ensure that it was consistent with other, ;
full-scale exercises evaluated in Region 11. FEMA EX Exh. 5, at 92.
According to FEMA, the Shoreham exercise was equal or greater in scope than any other full-scale exercise which had been evaluated in that region i up to that time and provided a basis for evaluating "the integrated capability and a major portion of the basic elements existing within LILCO Transition Plan and LERO organizations." b Id. at 105: Tr. 7633 and 7645-6 (Kowleski) .
-22/ Intervenors' argument (Intervenors' Brief at 44-48) that deference should not be given to FEMA's interpretation of Appendix E requirements, and FEMA's views on whether the Shoreham exercise satisfied those requirements is misdirected. FEMA is not, under NRC regulations and the MOU, charged with Interpreting NRC regulations, but with implementing the NRC regulatory scheme for offsite emergency planding review. The conduct and evaluation of emergency exercises is central to that function under NRC
. regulations. FEMA and the NRC have jointly created guidance on NUREG-0654 for meeting those requirements, among which Criterion N.1.b. provides guidance for testing the major portions of the plans over a multiyear period. FEMA's "professional judgment as to what ;
elements should be tested at the pre-license stage is entitled to (FOOTNOTE CONTINUED ON NEXT PAGE) i r
, - . - - - . ~ - ,
LILCO and FEMA agreed that the exercise mobilized a large number of personnel, including over 1,000 emergency response workers, and
- evaluated 26 of the 35 standard objectives (FEMA EX Exb.1, at 9-15, 24; FEMA EX Exh. 5, at 94-104; LILCO EX Exh. 12, at 18). NRC Staff witnesses testified that the exercise was designed to test the major observable portions of the LERO plans and the capacity to respond to an
< emergency. As such, it was thought to be a "full participation" exercise. E (NRC Staff EX Exh.1, at 7) importantly, the Board conceded that "this guidance may accurately reflect the practice which Staff and FEMA have followed in conducting exercises," before dismissing it as being inconsistent with the "clear" (FOOTNOTE CONTINUED FROM PREVIOUS PACE) substantial deference . . .". ALAB-861, 25 NRC at 139 n. 38. Thus, it is FEMA's expert Judgment as to how to structure and design a pre-licensing exercise which is to be given deference, both as a general matter, and in the case of the Shoreham exercise. Giving such deference does not involve ceding over authority to interpret NRC regulations.
23/
Intervenors argue that the Staff witnesses' testimony concerning whether the Shoreham exercise was a "full participation" exercise should be given no weight based on the witnesses' lack of familiarity with the details of the Shoreham plan and exercise as conducted.
Intervenors' Brief at 48-51. However, detailed fami!!arity with the LILCO Plan or the exercise was not required for the Staff experts to offer their view of the criteria for finding an exercise to be a "full participation" exercise. The important point to be gleaned from the '
Staff testimony, for purposes of this case, is that a "full participation" exercise does not require testing of all of FEMA's exercise "objectives" or "elements". Rather, it must cover those elements which will enable the testing of the integrated capability to assess and adequately respond to an accident at a nuclear power plant. NRC Staff EX Exh. 1, at 5-6. Had the Board given
, appropriate weight to the Staff testimony concerning what is generally required for initial "full participation" exercises, it could not have adopted its erroneous "all portions of the plan which can reasonably be tested" standard. ,
i I
t regulatory language. PID at 20, n.11, Moreover, in reaching its specific [
findings as to four areas in which the scope of the exercise was found to r
be deficient, the Board found no basis for discrediting FEMA's views and practice that the omission of testing of the matters relled upon by the Boafd did not prevent making necessary findings as to exercise adequacy. b The Board simply gave these views no weight.
Under both the Federal common law and the law of this case, the i
Board was required to give "considerable weight" to the FEMA practice ,
and testimony that the Shoreham exercise was a full participation or !
full-scale test which allowed FEMA to evaluate the major portions of the f emergency plans and the ability to mobillze personnel and resources to j respond to an emergency. (FEMA EX Exh. 5 at 92,94-104 on 105: Tr.
7633 and 7645-6 (Kowleski).) Nevertheless, the Board found that it was ,
inadequate because it failed to test all "reasonably achievable" portions.
In doing so, the Board adopted an interpretation of the applicable regulation which is contrary to consistent and accepted practices followed by FEMA and the NRC Staff. The Board also rejected without sound basis the views of the people charged with the primary responsibility of !
Implementing that regulation . When, as in this case, the practical e interpretation and judgment of those individuals is not at variance with t
the regulatory language, it should be accorded considerable deference. ;
~
24/ Throughout its decision, the Board referred to FEMA testimony about the portions os the emergency Plan which were not tested yet found ;
to be "reasonably achievable. This included testimony that portions t were deliberately omitted despite the fact that a "full scale" test was .
intended, and that doing so was entirely consistent with past FEMA practice and NRC guidance FEMA EX Exh. 5 at 115,125-6 and 128; Tr. 7239, 7560-30 and 7663-4, mentioned PID at pp 43-4 and 48-9. ;
i l
- . ~ - _ - _.
i i
l The Board's failure to show that deference clearly affected the outcome of j this case and constitutes reversible error.
- 5. In Sum, The Board improperly Interpreted CLI-86-11 And The Pertinent Regulatory Requirements For Judging The Adequacy Of An Initlai Exercise.
As indicated above, the Licensing Board made a series of legal errors. First, the Board failed to consider whether omission of various aspects of the LlLCO Plan from the exercise was so serious as to prevent the exercise from being used to make a reasonable assurance finding.
This error, by itself, would require reversal of the factual findings as to the four items deemed impronerly omitted. Second, by reading one phrase in Paragraph I V. F.1 in a vacuum, the Board failed to consider !
whether what was omitted constituted "major observable portions" of the i plans. Even intervenors conceded that only "major observable portions" of the plans were required to be exercised. I. F. 107-108 n. 86, 130-134. Fallure to determine whether the omissions were "major observable portions" of the plans was likewise error warranting reversal.
Third, the failure to credit FEMA and NRC testimony and defer to agency l administrative construction of the regulations as allowing the testing of I
"major portions of the plans" over several exercises, resulted in error as to compliance with Appendix E, i
l C. The Board's Determinations that Omission of Four Aspects of the [
LILCO Plan from the Exercise Violated the Requirements of Appendix E, .
Paragraph IV.F.1 Were Clearly Erroneous and Should be Reversed !
In addition to the Board's errors in determining the regulatory requiremants for exercises prior to licensing, the Board made clearly erroneous factual findings with respect to whether the four elements it l
I concluded were omitted from the exercise could reasonably have been tested. The pecific plan elements improperly found to support the l Board's finding of a non-compliance are set out below.
- 1. Participation of EBS Station WALK Radio l In applying the Board's standard for judging compliance with Appendix E to contention subpart EX-15A, the Board found that testing of three aspects of the alert and notification system - sounding of the :
sirens, broadcast of an EBS message, and activation of tone alert radios -
were not reasonably achievable, whereas testing of two other aspects - ;
i contact with WALK Radio and authentication of the EBS message by WALK f
- were reasonably achievable. PID at 26-28. The basis given by the Board for distinguishing between the former and the latter plan procedures was the New York Supreme Court decision in Cuomo v. ,
LILCO b indicating that sounding of the sirens or broadcast of EBS messages might be unlawful, and enactment by the Suffolk County l legislature of Local Law 2-86. The Board interpreted the latter !aw as {
providing for civil and criminal sanctions "an anyone participating in an :
t exercise activity which could affect the general pu blic. " PID at 25.
Apparently, the Board found that while sounding the sirens, broadcast of EBS messages and activation of tone alert radios affected the general !
i public, contacting WALK Radio and authenticating an EBS message did ,
not. PID at 27. !
. I i
- 25/ Consol. index 84-4615 (N.Y. Sup. Ct., Suffolk County, Feb. 20,
~
1985 (unpublished), a ffirmed , 511 N.Y.S.2d, 867 (App. Div. 2d t Dept. 1987), reversed on Jurisdictional grounds, N.Y.2d i (February 17, 1988).
I l
I
~ _. .. . . .
i The Board's distinction, however, is based on a misreading of the l local law. Section 2 of that law makes it a crime, punishable by both fine and impriscnment, l (a) . . .[F]cr any person to conduct or participate in any test or exercise of any response to a natural or man-made
- emergency situation if that test or exercise includes as part thereof that the roles or governmental functions of any Suffolk County official will be performed er simulated, and if the :
Suffolk County Legislature, pursuant to the procedures set l forth in Section 3 and 4 of this law, has issued via resolution a .
notice of disapproval of such performance or simulation of County roles or governmental function. . . .
See LILCO v. County of Suffolk, 628 F. Supp. 654, 659, (E.D.N.Y. ;
1986). The ordinance makes no distinction between participation in i i
activities affecting the general public and those which do not. Rather, ,
participation in an exercise involving performance of governmental roles j or functions, or involving simulation of such functions is the criterion.
Thus, participation of WALK Radio personnel in any aspect of the l 4
exercise could reasonably have placed them in vlotation of the law. It follows that if testing of any aspect of participation by WALK Radio personnel was nct reasonably achievable because of the local law, testing .
i of a i such aspects was not reasonably achievable. l The Board also rests its finding on the importance of testing the communication capability of LERO personnel by attempting actual contact ,
with WALK Radio. PID at 27. However, the capability of LERO f personnel to communicate information was tested by simulation. Id. The i
s L
i L
3 Board does not explain why it was necessary to have a WALK Radio ,
I employee listening to that communication, b l The factual findings upon which the Board found that testing of !
i these portions of the EBS communication system was "reasonably achi%vable" were erroneous. These errors affected the outcome of the j l .
j case, and warrant reversal. See Northern Indiana Public Service Co.
- (Bailly Generating Station, Nuclear-1), A LA B-204, 7 AEC 835, 836 !
(1974), b I 2. Participation of Additional Schools The Board found that LILCO had failed to show that further
{
participation of schools in the exercise was not reasonably achievable. -
PlD at 40, it found that LILCO had made a conscious decision not to l i
1 Include school districts other than tne Shoreham-Wading River School {
District, without specifically requesting such other school districts to participate . Id. at 38-40. It ruled that LILCO had not borne its burden j of proof to show that such schools would not in fact have participated if j asked. Id. at 40, it also based its decision in part on FEMA"s finding
- i i of an "ARCA" (Area Recommended for Corrective Action) in its Post i Exercise Assessment. Id. at 38.1he Board also purported to cite to i l i l t
26/ The Board also notes the finding by FEMA of deficiencies in LERO's I
'~
communication of EBS messages as simulated in the exercise. PID at [
4 - 27 n. 14 However, the extent to which LERO performance was i
- ceficient is irrelevant to whether the test in the first Instance was !
sufficient for purposes of evaluation. l 27/ Radio station WALK has ceased to participate under the LILCO plan.
See CLl-87-5, 25 NRC 884, 886 (1987). Thus the testing of WALK's l
response would have served little purpose. ;
V (
i i 4 1 t
1 i
k f
5 t
FEMA testimony that school participation was insufficient "'to reach any kind of conclusion (concerning] the capability of school districts more generally to respond to a Shoreham emergency' (Tr. 7603)..." Id. at 37-38, i * !
' The Board apparently believed that since LILCO had the burden of sho.ving that participation of certain school districts was not reasonably achievable, that all such evidence should in fact be presented by LlLCO. !
j lt focused on equivocal statements of LILCO's witness Daverlo, PID at 38-39, but seemed to treat as irrelevant an admission by Intervenors in their proposed findings that "the schools failed to participate because .
they have no confidence in LILCO or its Plan. NY EX Exh.1, at 71; NY ;
EX Exh, 2, Att. 7." 8.F.190, cited in, PlD at 39. Similarly, the Board 4
l merely alludes in passing to Mr. Daverlo's being "aware of various resolutions and other expressions of opinion concerning emergency i preparedness attributed to school district and related organizations" (PlD l
- at 38), falling to note that the referenced resolutions provide unrebutted
- evidence that in fact the school districts in the Shoreham EPZ had gone to the trouble to adopt formal resolutions stating that they would not s follow the LILCO Plan. See N. Y. S. EX Exh. 2, Attachment 7 For
), example, the South Cour.try Central School District, in Brookhaven, wrote L the Commissicn's Secretary, stating, inter alla,
( This school district has never adopted or agreed to implement any emergency plan to respond to [an accident at Shoreham). :
. To our knowledge, there is no s which has adopted such a plan. gol district in Suffolk County i
28/ Intervenors argue (Intervenors' B rie f, at 59 n. 62), that the majority of the school resolutions were adopted after the exercise.
However, as these post-exe rcise resolutions came within several ,
montlis of the exercise they serve as confirmation that LILCO's ;
efforts to enlist their participation would have been unavalling.
i
, _,_ . - . - _ _ _ _ _ , _ _ - . . - - - - - - _ - - - _ ~ _ _ _ _ _ - _ - - - _ _ - ,
Elther the admission of Intervenors that the schools would not participate in the LILCO Plan, or their own statements to that effect should have provided conclusive evidence that a request from LILCO to participate in ;
r the exercise would have been fruitless, and that their participation was not "reasonably achievable." E The Board's factual findings on the ability of LlLCO to secure the i
participation of school districts in the Shoreham EPZ are clearly contrary L
to the evidence. Their participation was not reasonably achievable. The Board was in error and reversal is warranted. See Bailly, supra. j
- 3. Testing of Plans for the ingestion Pathway Zone The Licensing Board incorrectly read the provision for participation in initial exercises by States as a requirement that the initial exercise test ingestion pathway objectives. Relying on this erroneous reading, the ;
Board found: I l
?
29/ The Board citation to FEMA testimony that the exercise could not serve as a basis for reaching conclusions about the capability of ;
school districts in Suffolk County was misleading. First, the '
quotation itself was a question, not the FEMA answer. See Tr. 7603, i Second, the question asked by Counsel addressed not the scope of [
the exercise but the scope of the conclusion that FEMA could draw .
from this exercise. Id. Third, when pressed to address the i adequacy of the exercise, the FEMA witness directly denied l Counsel's characterization of FEMA's position as being that the !
"exercise is too limited . . . " Tr. 7608 ( Kowleski) . Finally, the l FEMA witness stated that FEMA did, in fact, reach a conclusion on '
. the basis of the exercise concerning whether there was reasonable ;
assurance that adequate protective measures for school children
- could be taken. Tr. 7610-11 (Keller, Kowleski) . ,
. In addition, the notation of an ARCA in the exercise assessment !
is not a finding that precludes making a reasonable assurance I finding as to implementability but rather an area where correction is !
nevertheless required. Se FEMA Ex.1, at 8.
t k
i
~ 40 -
Pa ragraph IV. F .1 clearly requires, in addition to testing as '
much of a plan as is reasonably achievable, that each State within the ingestion exposure pathway EPZ participate in the initial full participation exercise. Thus both Connecticut and LERO, substituting for New York, should have been included and the exercise scenario should have included ingestion ;
pathway objectives.
PID'at 44 The Board confused the requirement for participation of States in prelicensing exercises with a requirement to test ingestion pathway '
objectives and failed to make specific findings as to each matter. It is clear that a State can participate in the exercise without necessarily testing its ingestion pathway plans.
New York State refused to participate in the exercise and ingestion pathway activities. PID at 43-44 New York State officials testified that i
they refused to include ingestion pathway objectives because of a lack of f FEMA guidance. Tr. 7208-10, 7232-33 (Paplie, Baransk!). E Thus New York State's participation in the exercise and the ingestion pathway was not reasonably achievable, and as the Board Indicates, is not, of itself, !
a deficiency in the scope of the exercise. UI See PID at 43-44. In fact, 30/ Intervenors' Brief improperly cites, as substantive evidence, Information about State ingestion pathway actions at other New York State plants to show that the State ingestion pathway plan could have been tested for Shoreham. Intervenors' Brief at 63 n. 65.
The Licensing Board admitted this evidence as background on! , and it was not to be used for making finding s. Tr. fS, 0-41, 5248-49, 5358-59.
31/ The only support for the Board's finding that ingestion pathway ;
objectives should have been included in the scope of the exercise is o a reference to FEMA's acknowledgement "that ingestion pathway objectives could have been te sted . . . " However, the Board's citations do not support this statement. See PID at 44 Rather,
- they are to (a) an intervenor witness statement and (b) a Staff letter, Id. FEMA did not address whether testing of ingestion pathway measures was posslble under the Board's "reasonably achievable" standard. See Tr. 7538-39 (Kowleski).
certain ingestion pathway protective actions were tested in New York
~
State within the 10-mile EPZ. FEMA EX Exh.1, at 26; FEMA EX Exh. 5, at 126.
The Board did not address whether the State of Connecticut participated in the exercise. FEMA did address this issue and concluded: t Considering that there were no ingestion pathway objectives and
,~ that the scenario was developed and approved on that basis, the participation by the State of Connecticut which was limited to communications was reasonable and appropriate.
- . FEMA EX Exh. 5 at 126; see also Tr. 6851 ( Daverio) . Thus, the participation requ!-aments of Par. I V . F .1, alone, do not su pport the
- , Board's conclusion. The B oa rd's conclusion that the scope of the a exercise was flawed because New York 'or LERO substituting for New York) and Connecticut were not included in the exercise is in error.
Further, the Board was wrong in concluding that ingestion pathway objectives had to be included in the exercise as a predicate to licensing.
As discussed in previous sections, the exercise of all objectives is not necessarily required in the initial pre-licensing exercise. See supra, at 23-26, 30-31.
Flaally, the Board failed to explain why it found testing of ingestion ,
pathway measures to be reasonably achievable without FEMA guidance when it found that "the lack of final EPA guidance on acceptable reentry doses dictates the conclusion that testing these functions was not reasonably achievable." Id. at 46. The absence of fina) FEMA guidance on ingestion pathway planning required a similar conclusion with respect
. to the testing of ingestion pathway plans.
In sum, the States, to the extent they would participate, took part in the exercise; there is no specific regulatory requirement to include
Ingestion pathway ' objectives in the exercise; and the guidance upon which FEMA would judge the adequacy of such planning was missing.
There is no basis for the Board's finding that failure to test those plans constituted non-compilance with Paragraph I V . F .1, or showed a "furidamental flaw" in the plan which prevent the making of a reasonable assurance finding. The Board's finding should be reversed.
- 4. Testing of Communications with Special Facilities and Additional Ambulance and Ambulette Company Personnel The Licensing Board found that the testing of communications between LERO and special facilities and of the "preparedness of ambulance and ambulette companies" was reasonably achievable, but not tested. PID at 49. Here, however, the Board's finding is not that such aspects of the plans were not tested at all, but that more of the LERO communications should have been with the actual facilities rather than to simulated facilities, and that .nore than one ambulance and one ambulette should have been tested. Id. at.47, 49. No finding is made that this did not verify the capability to respond to the accident scenarlo.
With respect to requiring actual communications with non-LILCO responders not under contract with LiLCO, the Board erred in falling to consider whether the actual par ticipation of such persons was feasible given the adoption of a local criminal law making it a crime to participate in the Shoreham exercise to the extent it would involve performance of
. County roles or simulation thereof. See, supra at 35-36. Given the legal inhibition on participation created by that criminal law, the Board should have found that participation of special facility personnel was not reasonably achievable.
With respect to participation of additional ambulance and ambulette resources and personnel, the Board does not explain why it found that the plan for use of ambulances and ambulettes was not adequately tested.
The Board does note that "FEMA interviewed no ambulance company offidlais and thus did not evaluate whether ambulance company officials were knowledgeable about what was expected under the Plan." Id. at 48.
It is here that the lock of Board discussion of the materiality of various aspects of the LILCO Plan to a reasonable assurance finding, what might be deemed to be necessary to test a "major observable portion" of the plans, whether the scenario enabled evaluation of the capability to respond to a scenario involving those portions of the plans, as well as what "as much as is reasonably achievable" means, robs the Boa rd's decision of rational basis. The Board simply provides no basis for concluding that testing the knowledge of ambulance and ambulette company officials was necessary, based on its being "reasonably achievable" or any other standard for judging the adequacy of an exercise.
The Board's determinations regarding the testing of special facility response are without basis, do not support a finding of non-compliance with Appendix E, Paragraph IV.F.1 or of a "fundamental flaw" and should be reversed.
L l
. 5. Conclusion in addition to basing its findings on an erroneous standard for regulatory compliance, the Licensing Board reached erroneous conclusions l
with respect to whether certain aspects of the LILCO Plan could reasonably have been tested. The Board's conclusions -- that testing of 1
l l
communications with WALK Radio and special facilities, school evacuation planning for districts other than Shoreham-Wading River, and the ingestion pathway plan was reasonably achievable -- are contrary to the evidence and must be reversed. The Licensing Board's findings with res;5ect to evaluation of ambulance and ambulette companies is without basis and must also be reversed.
V. CONCLUSION The Licensing Board's failure to adopt the appropriate standard for judging the adequacy of a prelicensing exercise, its errors in reading applicable rannlations, its failure to give appropriate weight to agency intent, interpretations, construction and practice, and its erroneous weighing of the facts it did weigh , require reversal of the PID, and dismissal of contentions EX 15 and 16.
Respectfully submitted, d ~
rge .J 1 son Counse for C Staff i '@o Lisa B. Clark Counsel for NRC Staff Dated at Rockville, Maryland this 7th day of March 1988 i ,
00LKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
,88 MAR 10 P4 :16 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAbcBQARDa.it.n <
00ui t iNo . :Ei<vicI.
SRMiCM In the Matter of
)
)
LONG ISLAND LIGHTING COVPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO LILCO APPEAL OF PARTIAL INITIAL DECISION ON THE SCOPE OF THE SHOREHAM EMERGENCY EXERCISE" in the above-captioned proceeding have been served on the following by deoosit in the United States mall, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 7th day of March 1988.
John H. Frye 111, Chairman
- Joel Blau, Esq.
Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Appeal Suite 1020 Board 99 Washington Avenue U.S. Nuclear Regulatory Commission Albany, NY 12210 Washington, DC 20555 Oscar H. Paris
- Fabian G. Palomino, Esq.
Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Appeal Executive Chamber Board State Capitol U.S. Nuclear Regulatory Commission Albany, NY 12224 Washington, DC 20555 Frederick J. Shon* Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Appeal Public Service Board Three Empire State Plaza
. U.S. Nuclear Regulatory Commission Albany, NY 12223 Washington, DC 20555 c Philip McIntire W. Taylor Reveley 111, Esq.
Federal Emergency Management Donald P. Irwin, Esq.
Agency Hunton & Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212
Stephen B. Latham, Esq. Herbert H. Brown, Esq.
Twcmey, Latham & Shea Lawrence Coe Lanpher, Esq.
Attorneys at Law Karla J. Letsche, Esq.
33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1800 M Street, NW
^
Atomic Safety and Licensing Washington, DC 20036-5891 s Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Agency Building 2 Atomic Safety and Licensing Empire State Plaza Appeal Board Panel
- Albany, NY 12223 U.S. Nuclear Regulatory Commission Washington, DC 20555 Spence W. Perry, Esq.
Martin Bradley Ashare, Esq. General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Anthony F. Earley, J r. Dr. W. Reed Johnson General Counsel 115 Falcon Drive, Colthurst Long Island Lighting Company Charlottesville, VA 22901 175 East Old Country Road Hicksville, NY 11801 Dr. Monroe Schneider Ms. Nora Bredes North Shore Committee Shoreham Opponents Coalition P.O. Box 231 195 East Main Street Wading River, NY 11792 Smithtown, NY 11787 William R. Cumming, Esq. Barbara Newman Office of General Counsel Director, Environmental Health Federal Emergency Management Agency Coalition for Safe Living 500 C Street, SW Box 944 Washington, DC 20472 Huntington, New York 11743 Dr. Robert Hoffman Long Island Coalition for Safe Docketing and Service Section*
Living Office of the Secretary P.O. Box 1355 U.S. Nuclear Regulatory Commission Massapequa, NY 11758 Washington, DC 20555 Alfred L. Nardelli, Esq.
e New York State Department of Law 120 Broadway Room 3-118 a New York, NY 10271
'Georgegi. Jo on Counser for C Staff