ML20206C318
| ML20206C318 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/10/1988 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#488-7470 ALAB-903, LBP-88-2, OL-5, NUDOCS 8811160215 | |
| Download: ML20206C318 (13) | |
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1 DOLMETED thhet UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'88 hT 10 N0'42 ATOMIC SAFETY AND LICENSING APPEAL BOARD.g.
Administrative Judges:
Christine N. Kohl, Chairman November 10, 1988 Alan 5. Rosenthal (ALA5-903)
Dr. W. Reed Johnson SERVE 0 NOV 101988
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
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Dockut No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power St2.cn, )
Unit 1)
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Kathy E.B. McCleskey, Richmond, Virginia (with whom Donald P.
Irwin and Lee B.
Zeugin, Richmond, Virginia, were on the brief), for applicant Long Island Lighting Company.
Michael S. Miller, Washington, D.C.
(with whom E. Thomas Boyle, Hauppauge, New York, Lawrence Coe Lan;pher,, Susan M. Casey, and P. Matthew Sutko, Was11ngton, D.C.,
Richard J.
tahnleuter, Albany, New York, and Stephen B. Latham, Riverhead, New York, were on the brief), for intervenors Suffolk County, thq State of New York, and the Town of Southamptoa.
.as on the Mitzi A._ Young (with whom Lisa B. Clarx brief) for the Nuclear Regulatory Commission staff.
DECISION 1.
In OLI-86-11, 23 NRC 577, 581 (1986), the Commission restricted hearings on the results of emergency planning exercises to those issues concerned with whether an exercise revealed "deficiencies which preclude a finding of reasonable assurance that protective measures can and will
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2 be taken, i.e., fundamental flaws in the plan."1 According to tl.e Licensing Board in LBP-88-2, 27 NRC 85 (1988), the February 1986 emergency exercise conducte? at the Shorcham facility revealed several "fundamental flaws" in the offsite emergency plan for t'na+
7111ty.
Specifically, t?.ose flaps were in the creas o.
.nications, traffic control, and training.
Id. at 212-13.
The appeal of applicant Long Island Lighting Company (LILCO) from that Licensing Board decision is penoing before us.
This past June, however, another such "pre-license" emergency exercise was conducted at Shoreham,2 and litigation of issues raised in that regard is already under way before the Licensing Board.
By letter dated October 26, 1988, LILCO contends that "an authoritative definition" of fundamental flaw from us could materially aid the new exercise litigation.
Last May, in connection with another LILCO appeal from an earlier Licensing Board decision on the scope of the February 1986 exercise, we issued a memorandum disclosing I
"[R]easonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency" is the basic regulatory standard against which emergency plans are measured.
10 C.F.R.
S 50. 4 7 (a) (1,.
2 The Commission's regulationL require a "full participation" exercise of an offsite emergency plan in the two-year period preceding issuance of a license author' zing operation above 5% of rated pcver.
10 C.F.R. Part 50, Appendix E, S IV.F.1.
3 1
our tentative conclusions on the merits of that appeal.
See Memorandum of May 25, 1988 (unpublished).3 We took that I
action so that our preliminary views on the required scope of a pro-license exercise could be relied upon to the extent feasible in the design and conduct of the then-upcoming June exercise.
LILCO suggests that a similar course is again appropriate with regard to its pending appeal from the Licensing Board's fundamental flaw decision.
We had hoped to be able to issue our decision on the entirety of LILCO's appeal by this time, but other unexpected developments of greater urgency in this proceeding have required our attention since the argument on this appeal.
The incipient litigation of any issues arising from the June 1988 exercise, however, should proceed as officiently and expeditioitsly as possible.4 We do not want the absence of our full decision on LILCO's appeal to be the 3
Our subsequent decision on LILCO's appeal was consistent with those tentative views.
See ALAB-900, 28 NRC 275 (1988), petition for review pending.
4 In CLI-86-11, 23 NRC at 582, the Commission directed litigation of the 1986 exercise to be expedited "to the maximum extent consistent with fairness to the parties."
We have already repeated that direction to the Licensing Board with regard to the 1988 exercise litigation.
See ALAB-901, 28 NRC 302, 307 (1988) (clip opinion at 6-7), petition for review pending.
See also ALAB-900, 28 NRC at 284-85 & n.5 (slip opir ion at 6, 8 & n.5) (noting that the two-year "window" far the pen-license exercise was already closed i
just after the isst.once of the Licensing Board's initial decision on the 1986 exercise).
4 source of any delay in that litigation.
Thus, deciding now the seminal issue of what is meant by a "fundamental flaw"
-- and leaving for later resolution the remainder of LILCO's appeal from LBP-88-2 -- is amply warranted.
This approach is also especially appropriate, given that LILCO's appeal is technically moot and any decision we render would be advisory in nature.
See ALAB-900, supra note 3, 28 NRC at 284-85 (slip opinion at 7-9).
2.
In _ Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984), cert. denied, 469 U.S.
1132 (1985)
(hereinafter, "UCS"), the court struck down a Commission rule that effectively barred the litigation of the results of emergency preparedness exercises in licensing proceedings.
It concluded that intervenors have a right under section 189 (a) (1) of the Atomic Energy Act of 1954, as amended, 42 U.S.C.
5 2239 (a) (3 ), to a heari.9 on such issues because the Commission considers them to be motorial to a licensing decision.
The court, however, expressly declined to restrict the Commission's authority to limit the issues in such a hearing.
Specifically, the court suggested that us Commission could consider only whether the results of an 4 e indicate that emergency preparedness plans are fundementally flawed, and could determine that "minor or ad hoc prcblems occurring on the exercise day" are not relevant.
735 F.2d at 1448.
The Commission subsequently adopted that very standard in CLI-86-11, explaining further
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that a fundamental flaw in the plan is a deficiency that would "preclude a finding of reasonable assurance that protective measures can and will be taken."
23 NRC at 581.
LILCO would define fundamental flaw more explicitly and suggested a three-part te"t to tha Licensing Boards would the alleged flaw substantially affect the public health and safety; is it pervasive or systemic; and is it readily correctable through additf.onal training or equipmenti The intervening Governments (Suffolk County, the State of New York, and the Town of Southampton), which oppose LILCO's appeal, believe that the standard in CLI-86-ll is explicit enough and that any new test was beyond the Board's power ta impose.5 For its part, the Licensing Board appeared to 5 The NRC staff, which supports most of LILCO's arguments on appeal, relied on the CLI-86-11 standard before the Licensing Board.
On appeal, however, the staff argues for the first time that "fundamental flaw" should be interpreted with reference to the Commission's so-called "rcalism" rule, set forth in CLI-86-13, 24 NRC 22, 29 (1985), and codified a year ago at 10 C.F.R. S 50.4 7 (c) (1),
Under that rule (issued well in advance of the Licensing Board's decision), the Commission assumes that, in an actaal emergency, state and local governments that have refused to participate in offsite emergency planning for a nuclear power facility (such as those here) would make a "best effort" response, re2ying on the utility's emergency plan.
.The staff has failed to provide any persuasive reason why it did not raise its new "realism" argument before the Licensing Board, and thus why it is proper for us to consider it now.
See Tennessee valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 18, and 2B), ALAB-463, 7 NRC 341, 348 (1970).
In any event, we fail to see how the (Footnote Continued)
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accept the first two parts of the. test urged by LILCO and to 33 reject the third.
See LBP-88-2, 27 NRC at 92 -93.
But see i
Licensing Board Prehearing Conference Order (October 3,
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1986) (unpublished) at 4 (referring to the rejection of contentions alleging "readily correctable problems").
We agree with the Governments' claim that no new test
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beyond that set forth in CLI-86-11 ir permitted.
That does not foreclose, however, further elaboration or interpretation of the Commission's fundamental flaw standard to guide the boards in their application of it to particular contentions raised by the parties.
We thus concur with LILCO that something more is needed to flesh out the I
fundamental flaw standard in the hope of making it easier to apply in litigation that necessarily leaves little room for delay and nemantic. debate.
3.
In'our view, a fondamental flaw in an emergency plan, as revealed in an exercise, has two principal components.
First, it reflects a failure of an essantial element of the plan, and, second, it can be remedied only l
through a significant revision of the plan.
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(Footnote Continued) l realism rule is germane to the discrete matter now before us i.e.,
the definition or meaning of fundamental flaw.
No one has argued, or indeed could argue, that LILCO's plan is l
per 80 fundamentally flawed because it is a utility, rather j
than a governmental, plan.
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7 s.
With respect to the first factor, whether an essential element of the plan is involved should be determined by reference to the 16 basic emergency planning standards set forth in 10 C.F.R.
S 50.47(b) and the requirements of 10 Part 50, Appendix E.6 Minor or isolated problems on C.P.R.
the day of the exercise do not constitute fundamental flaws in the emergency plan.
UCS, 735 F.2d at 1440.
Deficiencies that alone would not constitute a fundamental flaw, however, can be considered collectively, provided they are pervasive and show a pattern of related or repeated failures associated with a particular essential element of the plan.
If the problem revealed by the exercise is delay --
i.e.,
a failure to meet the time estimates on which the plan is premised -- the delay must be substantial and thus likely to have affected the protective action recommendations in an actual emergency.
Where the deficiency is the result of a particular person's failure to follow the requirements of the emergency plan itself, such deficiency is not a fundamental flaw unless that person performs a critical role under the plan and there is no backup structure or provision 6 Under the Commission's regulations, the emergency response training program is considered part of the emergency plan.
Sco 10 C.F.R.
S 50.47 (b) (15) ;
id., Part 50, Appendix E, S IV.F.
8 that would mitigate the efructs of the individual's-failure.7 f
The second factor requirer consideration of how the l
failure in the plan, as revealed by the exercise, can be corrected.
If the involved portion of the plan itself must be reassessed and reconceived to a significant extent in order to prevent such a failure in the future, then there is a fundamental flaw.
On the other hand, where the problem can be readily corrected, the flaw cannot reasonably be
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t characterized as fundamental.8 Any contention alleging that an exercise revealed a fundamental flaw in the emergency plan must address both of these factors in order to satisfy the Commission's i
I In this connection, due to the inevf.tably large number of turnovers in emergency personnel expected during i
the life of an operating license, undue attenti a should not be devoted to the performance during the exers e of any one individual.
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In a decision subsequent to CLI-86-11, the commission I
commented with seeming approval on another Licensing Board's j
rejection of exercise contentions that alleged only "'minoe, L
ad hoc, correctable problems.'"
Carolina Powe* & Light Co.
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(Shearon liarris Nuclear Power Plant), CLi-86-24, 24 NRC 769, 777 & n.10 (1986) (emphasis added), aff'd sub nom. Eddleman
- v. ERC, 815 F.2d 46 (4th Cir. 1987).
Thus, we do not believe that the Commission intended in CLI-86-11 to exclude
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consideration of possible corrective action from the t
4 fundamental flaw determination.
Cf. 10 C.F.R.
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S 50.54 (s) (2) (ii) (in determining if shutdown of operating i
t reactor is approprinte, Commission will consider action taken to correct deficiencies disclosed in biennial i
emergency exercises).
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9 requirement that "the bases for each contention (be] set forth with reasonable specificity."
10 C.F.R. S 2.714 (b).
See CLI-86-11, 23 NRC at 581.
As the Licensing Board explained, (aln adequate basis assures that the contention raises a matter appropriate for litigation in the proceeding, establishes a suffic'.ent foundation for the contention to warrant further inquiry into the subject matter addressed by the allegations, and puts the other parties su?ficiently on notice so that they vill know at least generally what they will have to defend against or oppose.
Prehearing Conference Order at 3.
See Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3),
ALAB-216, 8 AEC 13, 20-21, modified on other grounds, CLI-74-32, 8 AEC 217 (1974).
Requiring an "exercisa" contention to identify a failure of an essential element of the plan that can be corrected only through a significant revision of the plan itself is also reasonable in the circumstances.
Such contentions arise very late in the proceeding, and, as the UCS court recognized, they warrant treatment that is efficient yet fair to all parties.
See 735 F.2d at 1448-49.
Well-focused, concrete contentions are essential if that goal is to be realized.
There is also substantially more information availabic on which to base exercise contentions than is ordinarily the cat. -- most notably, the post-exercise assessment of the Federal Emergency Management Agency (FEMA).
Thus, it is reasonable
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-a 10 to expect greater detail in such conventions.9 It is also important to keep in mind that the purpose of an emergency exercise is "to provide inportant and material information to the Commission" so that it can determine whether any deficiencies in the plan as shown by the exercise are "significant under our regulations."
CLI-86-14, 24 NRC 36, 39 (1986).
The test for a fundamental flaw as we interpret it here is akin to that required for contentions alleging quality assurance (QA) deficiencies, In Union Electric Co.
(Callaway Plant, Unit 1), ALAB 740, 18 NRC 343, 346 (1983),
we noted that the magnitude and complexity of a nuclear power plant made the expectation of error-free construction both unrealistic and unreasonable.
Thus, where QA deficiencies are alleged, two factors are to be considered:
whether all identified construction errors have been corrected, and, even if they have been, whether the breakdown in proper QA procedures was so pervasive as to raise legitimate doubt about the integrity of the facility and its safety-related structures.
Ibid.
l 9 Ue also note that, under FEMA's regulations, the l
public is given an opportunity to observe a meeting at which the exercise is eva.1,uated, prior to FEMA's issuance of its post-exercise assessment.
44 C.F.R. S 350.9 (e).
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4:
G-11 The analogy between the areas of ouality assurance and emergency planning is close.
QA audits are intended to b
discover if there are any QA program deficiencies; emergency exercises are intended to reveal any deficiencies in the emergency preparedness plan.
A QA program and an emergency plan are bcth comprehensive in scope and involve myriad elements.
A QA program must provide,"adequate confidence that a structure, system, or coinponent will perform satisfactorily in service."
10 C.F.R. Part 50, Appendix B, Introduction.
An emergency plan must provide "reasonable assurance that adequate protective m9asures can and will be taken in the event of a radiological emergency."
10 C.F.R.
S 50.47(a) (1).
It is therefore reasonable for roughly the same factors to be taken into account with regard to issues arising from either a QA audit report or an emergency exercise evaluations the significance and extent of the breakdown or failure, and the nature of the corrective action necessary.
And, if this analysis is appropriate for the consideration of alleged QA deficiencies -- in which the public health and safety are implicated more directly -- it is reasonabic to apply it as well to emergency exercise f
contentions.10 0 In San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1320-21 (D.C. Cir. 1984), aff'd en banc, 789 F.2d (Footnote Continued) l
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12 Lastly, there is the question of what weight should be given to FEMA's post-exercise assessment in making the fundamental flaw determination.
Specifically, is a FEMA "Deficiency" rating -- the worst of three possible categories of problem areas -- on an element of the exercise tantamount to a fundamental flaw as contemplated by CLI-86-ll?
The answer, in our view, is "not necessarily."
Under the Comm'.ssion's regulations, a FEMA finding constitutes "a rebuttable presumption on questions of
[ emergency plan] adequacy and implementation capabx:ity."
10 C.F.R. S 50.47(a) (2).
F2MA findings are therefore entitled to presumptive but not conclusive weight.
Thus, an applicant has a greater, but not impossible, task in convincing a beard that a FEMA Deficiency doec not amount to a fundamental flaw in the plan.
So too, if FEMA has found no Deficiencies or assigned a less severe rating to a problem revealed by the exercise, an intervonor seeking the admission of contentions that allege a fundamental flaw has a more difficult task, but it cannot be precluded from even offering such contentions.
Otherwise, the commission would be abdicating its ultimato decisionmaking responsibility in the area of emergency planning to FEMA.
See generally (Footnoto Continued) 26, cert. denied, 107 S. Ct. 330 (1986), the court wrote approvingly of the callaway analysis in connection with l
alleged QA deficiencies at the Diablo Canyon facility.
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13 ALAB-900, 28 NRC at 29 296-97 (slip opinion at 24-25, i
34-35),
i To the extent it is inconsistent with this opinion, LBP-88-2, 27 NRC at 90-93, is reversed; a decision on the remainder of LILCO's appeal from LBP-88-2 will be issued in due course.
It is so ORDERED.
FOR THE APPEAL BOARD C,,
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C. J((n Shoemaker SecreDary to the Appeal Board t
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