ML20207Q095
| ML20207Q095 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/20/1987 |
| From: | Wagner M NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| OL-5, NUDOCS 8701230012 | |
| Download: ML20207Q095 (26) | |
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l l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
l DEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOAPD
- o r In the Matter of )
$ )
LONG ISLAND LIGHTING COMPANY) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
l MP.C STAFF RESPONSE TO FEMA PETITION FOR LEAVE TO APPEAL, APPEAL MEMORANDUM, REOUEST FOR EXPEDITED CONSIDERATION AND REQUEST FOR A STAY OR DIRECTED CERTIFICATION OF DECEPIBER 11, 1986 LICENSING BOARD ORDER d Mary E. Wagner Counsel for NRC Staff i
January 20, 1987 870123o012 870120 PDR ADOCK 05000322 O PDR
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL BOAFD In the Matter of )
)
LONG ISLAND LIGHTING COMPANY) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power StaHon, )
Unit 1) )
NP.C STAFF RESPONSE TO FEMA PETITION FOR LEAVE TO APPEAL, APPEAL MEMORANDUM, REOUEST FOR EXPEDITED CONSIDERATION AND REQUEST FOR A STAY OR DIRECTED CERTIFICATION OF DECEP!BER 11, 1986 LICENSING BOARD ORDER Mary E. Wagner Counsel for NRC Staff 9
January 20, 1987
TABLE OF (INITNIS J
PNE I. IN1HEUCT IN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. STATBENT OF 'ITE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. I SSUES CN REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 IV. ANU.ENT............................................. 8 A. W e Appeal Board Should Accept h is Case Under Its Discretionary Powers o f Revi ew. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. 'Ihe Licensing Nard's Adnission of Contentions FY 15 and 16 Should Be Affizined As Consistent With CLI-83-11. . . . . . . . . 11 C. %e Adnission of Contentions EX 15 and 16 Does Not Affect PER's Generic Approach To Re Design and Conduct of Bnergency Planning Exercises. . . . . . . . . . . . . . . 14 V. C W CWSI N ........................................... 19 1
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TABLE & AUIfGITIES
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JUDICIAL DECISIONS Union of Concerned Scientists v. NRC, 735 F. 2d 1437 (D. C. Cir.1984), cert. denied, TDTS. Ct 815 (1985) ............ 6,11,17 NRC DECISIONS Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), AT,AB-742,18 NRC 380 (1983) . . . . . . . . . . . 10 Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-634, 13 NRC 96 (1981) ............................................... 10 Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-382, 5 NRC 603 (1977) ............................................... 9 Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1) , CL1 11, 23 NRC 577 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . passim ALAB Memorandum and Order, January 5,1987
( u n p u bli s he d ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ASLD Memorandum and Order, December 11, 1986
( u n p u b lis he d ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim ASLB Prehearing Conference Order, October 3,1980
( u np ublis he d ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2,5,13 Public Service Co. of Indiana (Marble Hill Nuclear Generating, i
Station, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977) . . . . ... . . . 10 l Public Service Company of Indiana (Marble Hill Nuclear Generating l Station, Units 1 and 2), ALAB-374, 5 NRC 417 (1977) . . . . . . . . . . . 11 Public Service Co. of New Itamnshire (Seabrook Station, Units 1 and 2) , ALAB-762, 19 NRC 5 65 (1984) . . . . . . . . . . . . . . . . . . . 10 I Public Service Co. of New Hampshire (Seabrook Station, Unita 1 and 2) , ALAB-271, 1 NRC 478 (1975) . . . . . . . . . . . . . . . . . . . . 9 r Texas Utilities Electric Company (Comanche Peak Steam Electric l Station, Unit 1), 23 NRC (July 2, 1986) .................... 10 l
l
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2-REGULATIONS 10 C . F . R . I 2 . 718 (i ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10 C . F . R . I 2 . 7 3 0 ( f ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,9,10 10 C . F . R . I 2 . 7 8 5 ( a ) ( 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10 C . F . R . 5 2 . 7 8 5 ( d ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 10 C . F . R . I 5 0 . 4 7 (a ) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,12,19 10 C . F . R . I 5 0 . 4 7 ( a ) ( 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,13 10 C . F . R . I 5 0 . 4 7 ( b ) ( 14 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,13,16 10 C.F.R. Part 50, Appendix E Paragraph IV. F. 1 ............... 6,12,13 OTHER AUTHORITIES
" Criteria for Preperation and Evaluation of Radiological Emergency Response Plans Lnd Preparedness In Support of Nuclear Power Plants," NUREG-0654/ FEMA-Rep.-1 (Rev.1)
(1980) ........................................................... 16-17 Statement of Consideration, 50 Fed. Reg.19,323
( M ay 8 , 19 8 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 i
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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEAL BOARD s
l,-
In the Matter of ' )
. )
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5 i
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
NRC STAFF RESPONSE TO FEMA PETITION FOR LEAVE TO APPEAL, APPEAL MEMORANDUf f, EEOITEST FOR EXPEDITED CONSIDERATION AND REQUEST FOR A STAY OR DIRECTED CERTIFICATION OF DECEMBER 11, 1986 LICENSING BOARD ORDER I. INTRODUCTION The Federal Emergency Management Agency (FEMA) here seeks review by the Atomic Safety and Licensing Appeal Board (Appeal Board) of that part of a Prehearing Conference Order (unpublished) of October 3, 1986, 1 in which the Licensing Board admitted Contentions EX 15 and EX 16. The contentions were advanced by Suffolk County, i
the State of New York, and the Town of Southampton (Intervenors)
EI following the issuance of a Commission Memorandum and Order - which initiated this proceeding in order to decide matters in controversy concerning the February 13, 1986 exercise of the Long Island Lighting Company's (LILCO) emergency plan. The NRC Staff (Staff) believes the i s
-1/ Prehearing Conference Order (Ruling on Contentions and
{
Establishing Discovery Schedule), October 3, 1986, at 4-9, 11-12.
i l 2/ CLI-86-11, 23 NRC 577 (1986).
-g-Appeal Board should review this matter, although it believes the Board did not err in admitting these contentions.
Contentions EX 15 and 16 allege that the exercise did not yield valid or meaningful results on LILCO's ability to implement its emergency response plan as the exercise did not include demonstrations on evaluations of major portions of the plan or of the capabilities of many persons and entities relied on for the plan's implementation. U FEMA filed a motion for reconsideration of the October 3, 1986 Order, raising questions concerning the proper scope of the hearing and seeking reversal of the Licensing Board's admission of Contentions EX 15 and
- 16. O The. Staff, which had argued against the admission of the contentions, supported reversal of their admission. - In a Memorandum and Order of December 11, 1986 (Memorandum and Order), the Licensing 3/ See pp. 4-5, infra, for text of the initial paragraphs of Contentions EX 15 and 16.
-4/ FEPIA flotion to Reconsider Atomic Safety and Licensing Board Prehearing Conference Order dated October 3, 1986, and f femorandum and Supporting Affidavit in Support of that Motion ,
October 27, 1986.
-5/ See NRC Staff Response to Proposed Emergency Planning Contentions RcTated to the February 13, 1986 Exercise, August 15, 1986; NRC Staff Desponse to FEMA Motion for Reconsideration of Licensing Board's Prehearing Conference Order, November 10, 1986. In responding to Intervenors' proposed contentions, the Staff had in
, general opposed their admission on the ground that Intervenors had failed to provide a basis for a showing that the alleged deficiencies result in a plan that is fundamentally flawed. At this juncture, with the benefit of the Licensing Board's analysis, in its Pfemorandum and Order, of the Commission's regulatory requirements, the Staff acknowledges that the Licensing Board has supplied a reasonable foundation for its determination that Contentions EX 15 and 16 are admissible. The Staff no longer argues that the Licensing Board's decision should be reversed.
Board, inter alla, denied FEMA's motion. 6_/ FEMA now attempts to appeal, or seek certification, of the December 11 ruling of the Licensing Board. U For the reasons set forth below, the Appeal Board should exercise
. Its discretionary powers of review and consider FEMA's petition.
Ilowever, the Staff now believes the Contentions were properly admitted by the Licensing Board. The issue is one of a proper understanding of the effect of the Licensing Boards December 11, 1986 f.femorandum and Order.
FEMA, the Federal agency charged with the design process for the exercise, has interpreted the Licensing Board's action in admitting these Conten-tions differently from the Staff. It views the Board Memorandum and Order as permitting a programmatic attack on FEMA's design process and asserts that its ongoing exercise program will be irreparably harmed. Petition at 11. In light of FEMA's concerns the Staff agrees that clarification by the Appeal Board is important and "necessary to prevent detriment to the public interest." 10 CFR $ 2.730(f). The NRC and FEf.!A work closely and cooperatively in carrying out these two agencies' missions in the area of emergency preparedness. Thus, if FEMA views the Licensing Board's action as causing irreparable harm to
-6/ f.lemorandum and Order (Ruling on FEMA's Motion for Reconsideration of and Intervenors' Objections to October 3,1986 Prehearing Confer-ence Order), December 11, 1986. In a Memorandum and Order dated January 5, 1987, the Appeal Board denied FEMA's request for a s stay. The Staff thus does not respond to the FEMA Appeal insofar as it requests a stay of the Memorandum and Order.
7/ FEMA Petition For Leave To Appeal, Appeal Memorandum, Request For Expedited Consideration of Appeal of December 11, 1986 Order (ASLB No. 86-01-OL), and request for a Stay of that 0 der With
- Respect To Discovery Concerning Contentions EX 15 and 16 or Directed Certification To The Commission, December 31,1986 (FEMA Petition) .
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its program, the NRC Staff believes the Appeal Board should accept this petition for review, and movide the desired authoritative clarification of the scope of matters raised ay the. admitted contentions.
s
. II. STATEMENT OF TIIE CASE The Commission, in providing for a hearing on the Shoreham exer-cise, set forth the scope of such a hearing:
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 reasoneb!c esaurance that protective measures can and will be taken, f.e., fundamental flaws in the plan. Since only fundameisii,T Daws are material licensing issues, the hearing may be restricted to those issues.
CLI-SG-11, supra, 23 NRC 577, 581.
Contentions ' EX 15 and 16, which FEMA argues were improperly admitted under the above legal guidance, allege that the February 13, 1986 exercise of the LILCO Offsite Plan did not yield valid or meaningful results regarding LILCO's ability to implement its plan as the exercise failed to include demonstrations or evaluations of major portions of the LILCO plan or the capabilities of many persons and entities relied on for information; thus there is no basis for a finding of " reasonable assurance" that adequate protective measures can and will be taken.
Contention EX 15 states in part as follows:
CONTENTION EX 15. The scope of the February 13 exercise of the LILCO Plan was so limited that it could not and did not e yield valid or meaningful results on implementation capability as required by 10 CTR I 50.47(a)(2), in that it did not in-clude demonstrations or evaluations of major portions of the LILCO Plan. The data set forth in subparts A-M of this con-tention individually and collectively establish that the exercise demonstrated a fundamental flaw in the LILCO Plan. The exercise results do not demonstrate that the LILCO Plan could or would be implemented, and the exercise results preclude a finding that there is reasonable assurance that adequate
protective measures can and will be taken in the event of a -
radiological emergency - at Shoreham, as required by 10 CFR I 50.47(a)(1). Thus, the exercise demonstrated a fundamen-
! tal flaw in the LILCO Plan.
,. Contention EX 15 goes on to enumerate several elements of emergency
. preparedness that allegedly were not addressed in the exercise scenario, the responses during the exercises, or any FEMA evaluation or observation.
Contention EX 16 states in part as follows:
CONTENTION EX 16. The scope of the February 13 exercise of the LILCO Plan was so limited that it could not and did not yield valid or meaningful results regarding LILCO's capability to implement its Plan, as required by 10 CFR I 50.47(a)(2),
in that it did not include demonstrations or evaluations of emergency response capabilitics of many persons and entities relied upon. to implement the LILCO Plan. In addition, the exclusion of these entities from the exercise precludes a find-ing that the exercise evaluated major portions of emergency response capabilities, as required by 10 CFR I 50.47(b)(14).
The failure of each of the persons and entities identified in subparts A-N below to participate in the exercise both indi-vidunlly and collectively means that the exercise did not com-ply with 10 CFR I 50.47(b)(14) and did not demonstrate that the LILCO plan can or will be implemented, as required by 10 CFR II 50.47(a)(1) and (a)(2). Rather, the exercise re-cults 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, as required by 10 CFF I 50.47(a)(1).
Contention EX 16 goes on to enumerate several persons and entities who were allegedly excluded from the exercise. 8I -
The Licensing Board in its Prehearing Conference Order of
,- October 3,1986, at 4-0,11-12, set out its basis for admitting Contentions EX 15 and 16. Essentially, it reasoned that if it was to make a determi-
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8/ Contentions EX 15 and 16 are set forth in their entirety in Appendix A to the FEMA Petition.
nation under the Commission's standards in CLI-86-11 of seeing whether the exercise revealed a " fundamental flaw" in the LILCO emergency plan, it must also under the standards in Union of Concerned Scientists v.
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Nuclear Regulatory Commission, 735 F.2d 1437 (D.C. Cir. 1984), cert.
denied 105 S.Ct. 815 (1985) (UCS), see if the exercise was so fundamen-tally inadequate as to preclude the reasonable assurance finding that the plan can end will be implemented, which is required by 10 CFR 5 50.47(a P ). Prehearing Conference Order, at 4-5. It further pointed to the fact that proper exercises were part of emergency response plans prescribed in 10 CFR S 50.47 and 10 CFR Part 50, Appendix IV.F.1. d.
at 7-E. The NRC Staff had opposed admission of Contentions EX 15 and 16 as metters relating solely to exercise scope and not matters raising a fundamentcl flaw in the plan.
The Licencing Board in ruling on reconsideration, at 8-15, again elucidated its basis for the admission of Contentions EX 15 and 16 and the reasons why admission of those contentions is compatible with the Commission's directions in CLI-86-11. The Licensing Board emphasized that under NRC regulations the exercise itself is a provision of the plan, and that the regulation calls for a " full participation exercise" and provides guidance with regard to the scope of such an exercise. Id.
at 11-12. 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 assurance that protective measures can and will be taken, i.e., [a fundamental flaw] in the plan." Id. at 13, quoting from CLI-86-11, 23 NRC 577, 581 (1986). Having thus fit the contentions into the context of the Commission's regulatory framework, the Licensing Doard concluded:
_7-It is beyond question that licensing hearings exist to permit the public to question whether the Commission's regulatory requirements are satisfied by a given application. That is precisely what Intervenors are questioning here. So viewed, contentions Ex 15 and Ex 16 are admissible.
f.femorandum and Order, at 13.
. The Licensing Board particularly addressed some of the arguments FEMA brings here that the Contentions go the programmatic issue of FEPTA's design of the exercise or that FEMA has discretion in designing an exercise. It stated:
We do not view our ruling as unduly infringinsr on FEP1A's prerogatives. Contrary to FEMA's fears, we have not opened the hearing to issues concerning its conduct and design of the exercise, nor have we determined that the exercise must be the best possible. The issues litigable under Contentions En 15 and Ex 16 are limited to whether the scope of the exercise meets the Commission's reFulatory requirements for full participation exercises. (Fmphasis supplied).
Menorandum and Order, at 14. El Since the Licensing Board has now provided a fuller statement of its reasons for admitting the Contentions and has articulated the limits of those Contentions, the NRC Staff no longer believes that the Licensing Board's action in admitting the Contentions was improper. E
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9/ The Licensing Doard also denied FEILIA's request that the question of the admission of Contentions EX 15 and 16 be certified to the Appeal Board. M.at15,n.8,25.
10/ See in 5, supra. LILCO has filed a memorandum in support of FIGIA's petition, and the Intervenors have filed a response in opposition. LILCO's Memorandum In Support of FEP1A's Appeal and Request For Certification of Issues Relating to Emergency Planning y Exercise Design In Contentions EX 15 and 16 January 15, 1987
- (LILCO Brief)
- Suffolk County, State of New York, and Town of
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Southampton Response in Opposition to " FEMA Petition For Leave to Appeal, Appeal Memorandum, Request for Expedited Consideration of Appeal of December 11, 1986, Order (ASLB No. 86-01-OL), and (FOOTNOTE CONTINUED ON NEXT PAGE) i I
III. ISSliES ON REVIEW
- 1. Should the Appeal Board exercise its discretion to review the cdmission of Contentions EX 15 and 167 e
.- 2. Is- the admission of _ Contentions EX 15 and 16 consistent with CLI-86-11, 23 NRC 577 -(1986), where the Commission ruled that Staff review of emergency planning 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 flav's in the plan?"
- 3. Are Contentions EX 15 and 16 concerned with FEMA's generic eFerciSe program or with the results of the February 13 exercise of the LILCO plan?
IV. ARGUMENT A. The Appeal Board Should Accept This Case Under Its Discretionary Powers of Review.
In its Petition, FEflA acknowledges that it seeks an interlocutory ap-peal from the Licensing Board's admission of Contentions EX 15 and 16.
FEffA Petition at 11. In support of its petition, FEMA asserts that it
" requires immediate guidance not only for this proceeding but for its exercise program in general," and further asserts t' hat if jurisdiction is not accepted, FEMA's ongoing exercise program will be " irreparably (FOOTNOTE CONTINUED FROM PREVIOUS PAGE Request for Stay of That Order With Respect to Discovery Concerning Contentions EX 15 and 16 or Directed Certification to the Commission", January 15,1987 (Intervenors' Brief).
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harmed," and that "the public interest requires immediate clarification of this question by the Appeal Board." FEMA Petition at 11. Among the harms FEMA sees coming from the subject ruling is a need to test all
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observable elements of a plan each year instead of on a multi-year cycle, the Licensing Board competing with it in the design of emergency planning exercises, and a requirement that FEMA find absolute assurance that the results of testing a plan are valid rather than " reasonable assurance." d. at 9-10. Although the Staff disagrees with FEMA as to the impact on FEMA's program of admitting Contentions EX 15 and 16 for litigation, the Staff believes that because of FEMA's concern and its request to the !!RC for guidance, it is in the public interest that the Appeal Board undertake review at this time.
Section 2.730(f) of the Commission's regulations,10 CPR I 2.730(f),
provides:
No interlocutory appeal may be taken to the Commission from a ruling of the presiding officer. t' hen in the judgment of the presiding officer prompt decision is necessary to prevent detriment to the public interest or unusual delay or expense, the presiding officer may refer the ruling promptly to the Commission, and notify the parties either by announcement on the record or by written notice if the hearing is not in session.
In 10 CFR I 2.730(f), the Commission has set forth a general rule against interlocutory appeals. Thus, a reouest for interlocutory review is "to be resorted to only in ' exceptional circumstances.'" Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-382, 5 NRC 603, 606
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(1977), citing Public Service Co. of New Ilampshire (Scabrook Station, J
. Units 1 and 2), ALAB-271, 1 NRC 478, 486 (1975). "Almost without exception in recent times , [the Appeal Doard has) undertaken discretionary interlocutory review only where the ruling below either
(1) threatened the party adversely affected by it with immediate and serious irreparable impact which , as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner." Public Service Co. of
. Indicna (Blarble 11111 Nuclear Generating Station , Units 1 and 2),
ALAD-405, 5 NRC 1190,1192 (1977). NI See also Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-762,19 NRC 565 (1984); Arizona Public Service Co. (Palo Verde Nuclear Genersting Station, Units 2 and 3), ALAB-742,18 NRC 380 (1983). E The circumstances present in this case meet the standards set forth above. A prompt decision is necessary to prevent detriment to the public interest. A companion Federal agency reads the Licensing Board's decision to cause immediate and serious irreparable impact in the form of a programmatic challenge to its evaluation process. To protect the public interest the concerns of that agency about the impact of an NRC Licensing Doard action on the continuing vitality of its program presents an issue that should be promptly considered, and the scope and affect of the Licensing Board's decision should be clarified by the Appeal Board.
There is another matter relevant to this petition. The Staff does not address the issue of whether FEBIA , who is not a party to this proceeding, has standing to petition for review of the Licensing Board's 1
J_1/
1 The same standard is applied whether the review is pursuant to 7 5 2.730(f) cr i 2.718(i). Consumers Power Co. (H!dland Plant.
Units 1 and 2), ALAD-634,13 NRC 96, 99 (1981).
H/ Cf., Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Unit 1), 23 NRC (July 2,1986), a recent case in which the Appeal Board referred a question to the Commission for its guidance.
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decision. The Appeal Board itself need not decide that issue. FEMA has
,. been an active participant in this proceeding, both filing motions and responding to discovery reonests, and will present extensive evidentiary
, testimony. FEMA's Petition points out the affect of the Licensing Board's ruling on FEMA's programs despite its non-party status if the Licensing Board's ruling is' to be read as FEMA reads it. The Staff would urge the Appeal Board to accept this matter as appropriate for discretionary review or certification under the authority of 10 C.F.R. Sections 2.718 and 2.785 (a)(1) and (d). See also, Public Service Company of Indiana (Marble Ilill Nuclear Generating Station, Units 1 and 2), ALAB-374, 5 NRC 417, 418 n.1 (1977). 13I -
In conclusion, while the Staff supports FEMA's request for interlocutory review, it does not construe the Memorandum and Order as a challenge to FEMA's evaluation process or to have the generic effect FEMA is concerned about. For the reasons set forth below, it is the Staff's ~
position that on Appeal Doard ruling will alleviate FEMA's concerns. $
l D. The Licensing Board's Admission of Contentions EX 15 and 16 Should De Affirmed As Consistent With CLI-86-11.
The Commission , in CLI-8 6-11, noted that the D. C. Circuit's decision in Union of Concerned Scientists v. NRC, supra, does not 13/ In the same vein, the Staff does not oppose FEMA's petition on the g basis of untimeliness, particularly in light of the explanations provided in FEMA's Petition, at 2.
-14/ Alternatively, if the Staff's interpretation of the Licensing Board's action is in error and the admission of the subject contentions has the generic effect FEMA is concerned about, it is particularly important that the Appeal Board take review at this time.
prevent the Commission from excluding from exercise litigation any issue which was not material to licensing decisions. 23 NRC at 581. The Commission thus limited the emergency planning litigation in Shoreham, as follows:
- Under our regulations and practice, staff review of exercise results is consistent with the predictive nature of emergency planningr, and is restricted to determining if the exercise revealed any feficiencies which preclude a finding of reasonable essurance that protective measures can and will be taken i.e., fundamental flaws in the plan. Since only fundamental flaws are material licensing issues, the hearingr may be restricted to those issues.
A determination of what may be a " fundamental flaw" in an energency plan material to licensing issues, and how it might be evidenced in litigation involving an emergency planning exercise, requires an examination of the Commission's emergency planning regulations. Section 50.47(a)(1) of 10 CFR sets out the fundamental emergency planning licensing standard that "no operating license will be issued unless a finding is made that there is reasonable assurance that adequate protec-tive measures can and will be taken in the event of a radiological emer-gency." The NRC bases its finding on the adequacy of offsite emergency plans on a review of FEMA's findings and determinations as to "whether . . . [those] plans are adequate and whether there is reasonable assurance that they can be implemented." 10 CFR I 50.47(a)(2). These
- plans must meet standards which , inter alla, provide that: " Periodic exercises are conducted to evaluate major portions of emergency response q capabilities. .." 10 CFR I 50.47(b)(14).
]
The requirement for an exercise of an emergency response plan is
- ah;o set forth in 10 CFR Part 50, Appendix E, Paragraph IV.F.1, which provides that an emergency plan should describe provisions for emergency l
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planning exercises, and requires that there be a satisfactory " full
. participation" emergency planning exercise before a full power operating license can be issued.
, Thus, under 10 CFR 5 50.47(b)(14) and 10 CFR Part 50, Appen-dix E,1 IV.F.1 the emergency response plan is to include provisions for exercises, including an exercise before initial licensing. If the exercise showed the plan was not broad enough to " evaluate major portions of emergency response capabilitics" (10 CFR 5 50.47(b)(14)), or was not the
" full participation" exercise called for under i IV.F.1 of Appendix E to Part 50, a " fundamental flaw" might be shown in the plan which would preclude a findinF that there is reasonable assurance that the plan can and will be implemented. See Inlemorandum and Order of December 11, 1986, at 11-13. See also Prehearing Conference Order, at 4-9. $
Contention EX 15 essentially alleges that "The scope of the February 13 exercise of the LILCO plan was so limited that it did not yield velid or-meaningful results on implementation capability as required by 10 CFR I 50.47(n)(2), in that it did not include demonstrations or evaluations of major portions of the LILCO plan." Dases are then set out with specificity to support this contention. Contention EX 16 is similar but deals with the averment that since many persons and entities relied upon to implement the LILCO plan were not part of the exercise it could i
1
]
v -'-15/
In its Statement of Convd3 ration, 50 Fed. Reg.10,323 (May 8,1985) promulgating a revivon to the regulations after UCS the
- Commission provided thnt the results of emergency preparedness
!- exercises night he tcsted before lleensing. Where there is no
- exercise or no proper exercise there are no results which may be j tested and the " predictive" findings based on those results are not ,
l possible. See CLI-86-11, 23 NRC at 581. -
s.
not be said to have valid or meaningful results on the implementability of
- the plan as required by 10 CFR I 50.47(a)(2).
The Licensing Board's admission of Contentions EX 15 and 16 did not conflict with the Commission's limitation in CLI-86-11 to only admit 4
contentions in this proceeding " 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." The basic issues raised are whether the exercise revealed a
" fundamental flaw", and whether the exercise was insufficient to form the j basis of an evaluation of the plan, and thus constitutes a fundamental flaw in the plan. No error was made in admitting Contentions EX 15 and
- 16. 16/
C. The Admission of Contentions EX 15 and 16 Does Not Affect FEMA's
! Generic Approach To The Design And Conduct Of Emergency Planninfr Exercises.
] FEf tA asserts that the admission of these Contentions requires FEMA l to litigate its " generic approach to evaluation of exercises, namely a i testing of a series of observable elements over a six year cycle" and this 4
will cause FEMA "to relocate its resources." FEMA Fetition at 5, see also M. at 9-10. FEMA alleges litigation of these Contentions will " test whether an exercise could he better designed, and will place FEf.!A in the j position of competing with the Licensing Board with respect to designing 1
V 16/ It is noted that a striking of Contentions EX 15 and 16 would lead to
~~
. a reexamination of many other contentions which were said to be
" subsumed" or incorporated in Contentions EX 15 and 16. The con-3 tentions would have to be reeremined to see if they have the same defects as Contentions EX 15 and 16. floo Memorandum and Order, December 11, 1986, at 4-8.
l
- - - . - - - ,..-,.---,,,,,.,,,w m- .-T-,-%..----.,,_.m,----.-.c.,-%,-,--,,.,--w~-.-,.m-..,---- ~ - - - , - - - -,, __w. , - . -, , ,, , . , .,.-y-.-.,
and evaluation of exercises, when only the results the day of the exercise are relevant. . . " d. at 9. FEMA further asserts that the subject Contentions were wrongly admitted as it is "the results, not the scope, of
, the exercise that are in feet the material factors relied upon by the
~*
Commission" in determining under 10 CFR I 50.47(a)(2) that there is
" reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." FEP.fA Petition at 10. b The !!EC believes such a construction of Contentions EX 15 and 16 is neither mandated by a literal reading of the Contentions nor was it intended by the Licensing Board. The ultimate issue to be litigated is whether "the exerefre itself revealed any deficiencies which preclude a findinr: of reasonable assurance that protective measures can and will be t taken, i.e., fundemental flcws in the plan." CLI-86-11, supra, 23 NFC L
at 581. It is the results of the c:cercise that must form the basis for a finding of " reasonable assurance". In assessing whether the results of that exercise will support a finding of reasonablo assurance, to some extent the overall adequacy of the scope of the exercise also must be considered in order to determine whether the results provide a sufficient test of the plan to form the basis of a finding of " reasonable assurence".
i J
17/ FEf tA further asserts at p.9 of its Petition that: "The only issue relevant to the Licensing Board is riven the scenario of the day of the exercise, did the steps taken by the emergency response organizations have an impact on dose rates." The issue here, as in all !!RC licensing proceedings, is whether statutory and regulatory requirements have been met.
i
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It is in this limited context that the scope of the exercise in to be litigated in this proceeding. b Nothing in Contentions EX 15 and EX 16 constitute a challenge to the current FEMA policy of testing NUREG-0654/ FEMA-EEP-1 (Rev.1) over a o
< multi-year cycle. Nor does the Staff ' believe the Licensing Board intended such a reading to be given to those contentions. All the Contentions go to is whether the exercises " yield [ed] valid and meaningful results" on LILCO's ab!!ity to implement its plan. See Con-tontions EX 15 and 16. Nowhere is it allegred that FEMA's generic programs are infirm or that better exercises could be designed. Under 10 CFR I 50.47(b)(14), emergency response plans must meet standards providing for preparedness exercises to " evaluate major portions of emergency response capabilities." (Emphasis supplied). As a matter of practice, FEt1A has never tested every one of its observable elements in any one exercise. The NRC has never taken the position that FEMA needs to do so, but instead recognizes that a planning exercise does not test every element of a plan. 'Indeed, planning Standard N of the foint NRC/ FEMA " Criteria for Preparation and Evaluation of Radiological Emergency llesponse Plans and Preparedness in Support of Nuclear Power Plants," NUREG-0054/ FEMA-Rep.-1 (Rev.1) (1980), illustrates that not all
~
18/ As LILCO notes in its brief, at 11-12 Contentions EX 15 and 16 do
. not allege that the exercise design process followed at Shoreham
, deviated, either substantively or procedurally, from agency norms.
LILCO Brief at 5. The question here is only whether the exercise provided the needed results to find reasonable assurance that the LILCO plan can and will be implemented, not whether it was as good as other exercises. See Prehearing Conference Order, at 7.
clements are expected to be tested in a ple.nning exercise: "An exercise is an event that tests the integrated capability and a major portion of the basic elements existing within emergency preparedness plans and organizations. " Planning Standard N.1.a. (emphasis supplied) .
e
. Similarly, Planning Standard N.1.b. provides, inter alla , that the scenario should be varied year to year "such that all major elements of i
the plans end preparedness organizations are tested within a five year period. " 17 0 see nothing in the Licensing Board's December 11, 1986 flcmorandum und Order which would challenge this approach.
It is clear that the choice of the partienlar elements to be tested is committed to the FEt,fA officials designing the exercise, and that all ele-ments are required to be tested over a several year cycle. There is also no question, the Staff submits, but that the sampling must be broad enough to give reasonable assurance that the emergency plans can be implemented. EI As the Licensing Board has articulated its interpreta-tion of contentions EX 15 and 16, this is precisely the issue admitted for litigation: whether the exercise was broad enough to be a proper test of the plan. To the extent that the Licensing Board will be looking at the scope of the exercise, it is not to determine whether better exercises could be developed but solely to test whether this exercise was sufficient so that the results of the exercise could form a basis for a finding that there is reasonable assurance that adequate protective measures can and
, will be taken. The Staff is confident that, after a hearing, the answer d
to that question will be in the affirmative.
M/ See, Union of Concerned Scientists v. MRC, supra.
The Licensing Board in ruling on FEMA's motion for reconsideration of the admission of Contentions EX 15 and 16 particularly disavowed any intention to open the hearing to rule on any matter within " FEMA's e prerogatives, particularly the conduct and design of the exercise. "
Memorandum and Order of December 11,1986, at 14. 0/
The Licensing Board rimilarly rejected 7EMA's conclusion that by admitting Contentions E% 15 and 16, it had determined that an exercise "must be the best possible." Id. It stated that it was only reviewing whether the exercise met Commission regulatory requirements. Id. Plainly the Board is only looking at the exercise to see whether it provides the reasonable assurance that the plan can and will be implemented as set out in 10 CFR C 50.47(a)(2).
Intervenors have also interpreted their contentions as not "challengling) FEMA's process for developing an exercise or FEMA's process in conducting exercises", "the exercise design", the exercise sconcrio, or the design of the exercise scenario. Intervenors' Drief at 15, 18. Elmilarly, the Intervenors have stated that the contentions do
, not maintain that every element in an energency plan must be tested.
M.at15-16. Intervenors state the subject contentions "take the exercise as it occurred and the FEMA processes as they were applied and challenge the exercise results." M. at 18-10. Intervenors are bound by 2
20/ The Licensing Board thus responded to the fears in the affidavit of Robert S. tillkinson (attached to FEMA's October 27, 1986 Motion for !!cconsideration), that the Board was looking at FEMA's generic
' procedures and going to instruct FEMA on the design of exercise scenarios.
' these interpretations, and no cause exists +n interpret the subject contentions broader than the Intervenors.
Plainly Contentions EX 15 and 16 do not go to FEf.1A's generic process in the conduct and design of emergency planning exercises, but a
o to the results of the LILCO cmergency planning exercise.
CONCLUSION For the reasons set forth above, the Appeal Board should undertake discretionary review of FEB1A's appeal, and rule that the Licensing Board did not err in admitting Contentions EX 15 and 16. This would authoritatively clarify the scope of the matters in issue with respect to the February 13, 1986 exercise. b Respectfully submitted I
- ffar E.Wagder Cou iel for NRC Staff Deted at Dethesda, f.farylend this Mday of January,1987 21/ FEf.l A's petition, at 11, contains a request that this motion be certified to the Commission should the Appeal Board fall to rule in
, its favor. As we have shown, no cause for certification exists. The
, quontions here are not generic, but caoo specific. They involvo
- only the question of whether the results of the LILCO exercise may
. be relied on to show there was no " fundamental flaw" in LILCO's emergency plan, and as such it provides a basis for the reasonable assuranco finding required by 10 CFR I 50.47(a)(1). Further, with the Appeal Board's clarification of the scope of the contentions there would be no purpose in certifying this matter to the Commission.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD e
8 In the Matter of )
w )
LONG ISLAND LIGIITING COMPANY ) 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 FEMA PETITION FOR LEAVE TO APPEAL, APPEAL MEMORANDUP1, REOUEST FOR EXPEDITED CONSIDERATION AND REQUEST FOR A STAY OR DIRECTED CEPTIFICATION OF DECEMBER 11, 1986 LICENSING BOARD ORDER" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit ,
in the Nuclear RcFulatory Commission's internal mail system, this 20th day of January,1987:
John II. Frye III, Chairman
- Joel Blau, Esq.
Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Oscar II. Paris
- Fabian G. Palomino, Esq.
Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 Frederick J. Shon* Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, DC 20555 Albany, NY 12223 l'hilip McIntire W. Taylor Reveley III, Esq.
Federal Emergency f.lanagement Donald P. Irwin, Esq.
- Agency Hunton a Williams 26 Federal Plaza 707 East Plain Street Room 1349 P.O. Box 1535 New York, NY 10278 Pichmond, VA 23212
_p.
Stephen B. Latham, Esq. Herbert H. Brown, Esq.
Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.
Attorneys at Law Karla J. Letsche, Esq.
33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor o 1800 M Street, NW
, Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safoty and Licensing Agency Building 2 l Appeal Board Panel
- Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY 12223 Washington, DC 20555 Spence W. Perry, Esq.
Martin Bradley Ashare: Esq. Generel 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 Dr. Monroe Schneider Robert Abrams, Esq.
North Shorc Committee Attorney General of the State P.O. Box 231 of New York Wading River, NY 11792 Attn: Peter Dienstock, Eng.
Department of Law i Ms. Nora Bredes State of New York Shoreham Opponents Coalition Two World Trade Center ,
195 East Main Street Room 46-14 Smithtown, NY 11787 New York, NY 10047 Anthony F. Earley, Jr. William R. Cumming, Esq.
General Counsel Ofnce of General Counsel Long Island Lighting Company Federal Emergency Management 175 East Old Country Road Agency Hicksville, NY 11801 500 C Street, SW Washington, DC 20472 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
? Mary M. Gundrum, Esq.
e New York State Department of Law 120 Broadway l
3rd Floor. Room 3-116 New York, NY 10271 l'
Mary l(buWagnerf. ?l/ Mw l
Cou for NRO.l Staff i
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