ML20207Q279
| ML20207Q279 | |
| 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 | |
| CON-#187-2280 OL-5, NUDOCS 8701270118 | |
| Download: ML20207Q279 (25) | |
Text
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. i UNITED STATES OF AMERICA
'87 JAN 23 P1 :28 NUCLEAR REGULATORY COMMISSION Yl0be t
>[u t
DEFORE TIIE ATOMIC SAFETY AND LICENSINO APPEAL BOAPD BTP s "
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1)
)
HP.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 DECEP1BER 11,1986 LICENSING BOARD ORDER 4
Odkh[Ojjjpp PDR Mary E, tVagner Counsel for NRC Staff January 20, 1987 Tj5ol
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TABLE & GNIPNIB PNE I.
INDmJCTim.........................................
1 STA'11!!ENT & 'IfR CASE................................
2 III.
ISSUES m REVIBt.....................................
8 IV.
AR1 MINT.............................................
8 A.
H e Appeal Board Should Accept 2 1s Case Gular Its Discretionary Powe rs o f Revi ew..............................
8 B.
'ne Licensing noard's Adnission of Contentions FY 15 and 16 Should Be Af finned As Consistent Wi th CLI-86-11.........
11 C.
De Adnission of Contentions EX 15 and 16 Does Not Affect IBM's Generic Approach To 2e Design and Conduct o f Bnergency Planning Exerci ses...............
14 V.
GNCIUS IN...........................................
19 a
i P
s, TABLE OF AUDDtITIES M*
JUDICIAL DECISIONS Union of Concerned Scientists v. NRC, 735 F. 2d 1437 (D. C. Cir.1984), cert denied, TFS. Ct 815 (1985)............
6,11,17 NRC DECISIONS Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Unita 2 and 3), M.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 N R C 6 0 3 ( 19 7 7 )...............................................
9 Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), _ CL1 11, 23 NRC 577 (1986).........................
passim ALAB !Liemorandum and Order, January 5,1987
( u n p u b li s h e d )..........................................
3 ASLD Memorandum and Order, December 11, 1986
( u n p u b li s he d )..........................................
passim ASLB Prehearing Conference Order, October 3,1986
( u n p ublis he d )...........................................
1,2,5,13 Public Service Co. of Indiana (Marble Hill Nuclear Generating, Station, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977)..........
10 Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-374, 5 NRC 417 (1977)...........
11 PubIle Service Co. of New Itamnshire (Seabrook Station, Units 1 and 2), ALAB-762, 19 NRC 565 (1984)...................
10 Public Service Co. of New Itampshire (Seabrook Station, Units 1 and 2), ALA B-271, 1 NRC 4 78 (1975).................... 9 Texas Utilities Electric Company (Comanche Peak Steam Electric Station, Unit 1), 23 NR C _ (July 2, 198 6)....................
10
s, REGULATIONS 10 C. F. R. I 2. 718 (i ).............................................
10 f
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. I 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 OTIIEP AUTHORITIES
" Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness In Support of Nuclear Power Plants," NUREG-0654/PEMA-Rep.-1 (Rev.1)
(1980)...........................................................
16-17 Statement of Consideration, 50 Fed. Reg.19,323
( M ay 8, 19 8 5 ).................................................
13 a
i
e, UNITED STATES OF AMERICA NUCLEAR REGULATORY COBft!!SSION BEFORE T!!E ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
)
)
LONO ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exerciae)
(Shoreham Nuclear Power Station.
)
Ur.it 1)
)
NRC STAFF RESPONSE TO FEMA PETITION FOR LEAVE TO APPEAL, APPEAL ?!EMORANDUf f, REOUEST FOR EXPEDITED CONSIDERATION AND REQUEST FOR A STAY OR DIRECTED CERTIFICATION OF DECFMBER 11, 1986 LICENSING BOARD ORDER INTP.ODUCTION The Federal Emergency Management Agency (FEMA) here seeks revieve by the Atomic Safety and Licensing Appeal Board (Appeal Board) of that part of a Prehearing Conference Order (unpublished) of October 3, 1986, II in which the Licensing Board admitted Contentions EX 15 and EX 16.
The contentions were advanced by Suffolk County, the State of New York, and the Town of Southampton (Intervenors) following the issuance of a Commission Memorandum and Order EI 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 1/
Prehearing Conference Order (Huling on Contentions and
~
Establishing Discovery Schedule), October 3, 1986, at 4-9, 11-12.
E/
J.
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 entitles relied on for the plan's implementation. U FEB1A
~
filed a motion for reconsideration of the October 3,1988 Order, raising questions concerning the proper scope of the ' hearing and seeking reversal of the Licensing Board's ac' mission of Contentions EX 15 and O
The Staff, which had argued against the admission of the 16.
contentions, supported reversal of their admission. 5_/
In a Memorandum and Order of December 11,1986 (Blemorandum and Order), the Licensing 3/
See pp. 4-5, infra,. for text of the initial paragraphs of Contentions EX 15 and 16.
4/
FEffA flotion to Reconsider Atomic Safety and Licensing Board Prehearing Conference Order dated
,0ctober 3,
- 1986, and l'emorandum and Supporting Affidavit in Support of that Biotion, October 27, 1986.
5/
See fiRC Staff Response to Proposed Emergency Planning Contentions NeTated to the February 13, 1986 Exerclae, August 15, 1986: NRC Staff Response to FEf1A Pfotion 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 in 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 s 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.
s, Doard, inter alia, denied FEMA's motion. 6,/
FEMA now attempts to appeal, or seek certification, of the December 11 ruling of the Licensing Poard. O For the reasons set forth below, the Appeal Board should exercise its discretionary powers of review and consider FEBfA's petition.
However, 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.
FEPTA, 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 FERIA's concerns the Staff agrees that clarification by the Appeal Board is important and "necessary to prevent detrir.1ent to the public interert."
10 CFR I 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 FEffA's Motion for Reconsideration
~
of and Intervenors' Objections to October 3,1986 Prchearing Confer-ence Order) December 11, 1986.
In a Memorandum and Order dated January 5, 11587, the Appeal Board denied FEMA's request for a stay.
The Staff thus does not respond to the FEf.!A 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 Order With Respect To Discovery Concerning Contentions EX 15 and 16 or Directed Certification To The Commission, December 31,1986 (FEMA Petition).
u, 4
e Its program, the NRC Staff believes the Appeal Board should accept this petition for review, and provide the desired authoritative clarification of the scope of matters raised by the admitted contentions.
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 reasoneble 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.
CLI-80-11, 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 yield valid or meaningful results on implementation capability as required by 10 CFR 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
n, protective measures c:a 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 capabilities 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-vidually 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 $$ 50.47(a)(1) and (a)(2).
Rather, the exercise re-sults 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 CFR I 50.47(a)(1).
Contention EX 16 goes on to enumerate several persons and entities who were ' llegedly excluded from the exercise. 8,/
a l
The Licensing Board in its Prehearing Conference Order of October 3,1986, at 4-9,11-12, set out its basis for admitting Contentions EX 15 and 16.
Essentially, it reasoned that if it was to make a determi-
-8/
Contentions EX 15 and 16 are set forth in their entirety in Appendix A to the FEMA Petition.
i
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.
Nuclear Rerrulatory 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 and will be implemented, which is required by 10 CFR E 50.47(a)(1).
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.
Id.
at 7-8.
The NRC Staff had opposed admission of Contentions EX 15 and 16 as metters relating solely to exercise scope and not matters raising a fundamenth! flaw in the plan.
The Licensing 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 1 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 Board concluded:
e,
_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.iemorandum and Order, at 13.
The Licensing Board particularly addressed some of the arguments FEMA brings here that the Contentions go the programmatic issue of FEflA's design of the exercise or that FEMA has discretion in designing an exercise.
It stated:
We do not view our ruling as unduly infringingr on FEffA'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 Ex 15 and Ex 16 are limited to whether the scope of the exercise meets the Commission's refrulatory requiremento for full participation exercises.
(Emphasis supplied).
Menorandum and Order, at 14. E 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
-9/
The Licensing Board also denied FEMA'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 PEKIA's petition, and the Intervenors have filed a response in opposition.
LILCO's Memorandum In Support of FEMA's Appeal and Request For Certification of Issues Relating to Emergency Planning Exercise Design In Contentions EX 15 and 16, January 15, 1987 (LILCO Brief); Suffolk County, State of New York, and Town of 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)
III. ISSUES ON R$ VIEW 1.
Should the Appeal Board exercise its discretion to review the cdmission of Contentions EX 15 and 16?
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 flavrs in the plan?"
3.
Are Contentions EX 15 and 16 concerned with FEMA's generic exercise 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, FEf!A 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 that 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).
a -
i harmed," and that "the public interest requires immediate clarification of this question by the ' Appeal Board."
FEMA Petition at 11.
Among the harms FEPiA sees coming from the subject ruling is a need to test all 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 "ressonable assurance."
Id. 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 NRC 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 CFR R 2.730(f),
provides:
No interlocutory appeal may be taken to the Commission from a rul!ng 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 reauest 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 (1977), citing Public Service Co. of New IIampshire (Scabrock Station,
Units 1 and 2), ALAB-271, 1 NRC 478, 486 (1975).
"Almost without exception in recent times,
Ithe Appeal Board has]
undertaken discretionary interlocutory review only where the ruling below either i
i
- + -.
1 (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviate #1 by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner."
Public Service Co. of Indiana (Blarble Hill Nuclear Generating Station,
Units 1 and 2),
ALAB-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 Generating Station, Units 2 and 3), ALAB-742,18 NRC 380 (1983). N 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 FEB1A, who is not a party to this proceeding, has standing to petition for review of the Licensing Board's
-11/ The same ' standard is applied whether the review is pursuant to t 2.730(f) or I 2.718(1).
Consumers Power Co. (P11dland Plant,
Units 1 and 2), ALAB-634,13 NRC 96, 99 (1981).
-12/
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.
f 9
_ 11 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 requests, and will present extensive evidentiary d
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 Doard'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 certificatfor$ 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 IIlli Nuclear Generating Station, Units 1 and 2), ALAB-374, 5 NRC 417, 418 n.1 (1977). I3,/
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 evalustion process or to have the generic effect FEMA is concerned about.
For the reasons set forth below, it is the Staff's s
position that an Appeal Board ruling will alleviate FEMA's concerns. b 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-86-11,, 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 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.
1 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 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 f.e.,
fundamental flaws in the plan.
Since only fundamental flaws are material licensing issues, the hearing 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 j
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 CFP. 5 50.47(a)(2).
These i
plans must meet standards which, inter alia, provide that:
" Periodic exercises are conducted to evaluate major portions of emergency response capabilities..." 10 CFR I 50.47(b)(14).
The requirement for an exercise of an emergency response plan is also set forth in 10 CFR Part 50, Appendix E, Paragraph IV.F.1, which provides that an emergency plan should describe provisions for emergency
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, T 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 capabilities" (10 CFR 5 50.47(b)(14)), or was not the
" full participation" exercise called for under T IV.F.1 of Appendix E to Part 50, a " fundamental flaw" might be shown in the plan which would preclude a finding that there is reasonable assurance that the plan can and will be implemented.
See lifemorandum and Order of December 11, 1986, at 11-13.
See also Prehearing Conference Order, at 4-9. El 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 valid or meaningful results on implementation capability as required by 10 CFR f 50.47(a)(2), in that it did not include demonstrations or evaluations of major portions of the LILCO plan." Bases 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
l M/ In its Statement of Consideration, 50 Fed. Reg.10,323 (May 8,1985) promulgating a
revision to the regulations after UCS the Commission provided that the results of emergency preparedness exercises might be tested before licensing.
Where there is no exercise or no proper exercise there are no results which may be tested and the " predictive" findings based on those results are not possible. See CLI-86-11, 23 NRC at 581.
14 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 '
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 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. I61 C.
The Admission of Contentions EX 15 and 16 Does Not Affect FEP.lA's Generic Approach To The Design And Conduct Of Emergency Planninir Exercises.
FE?tA asserts that the admission of these Contentions requires FEMA to litigate its " generic approach to evaluation of exercises, namely a testing of a series of observable elements over a six year cycle" and this will cause FEf,lA "to relocate its resources."
FEP.lA Petition at 5, see also M. at 9-10.
FEMA alleges litigation of these Contentions will " test whether an exercise could be better designed, and will place FEf.lA in the position of competing with the Licensing Board with respect to designing 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-tentions would have to be reeramined to see if they have the same defects as Contentions EX 15 and 16.
See Memorandum and Order.
December 11, 1986, at 4-8.
and evaluation of exercises, when only the results the day of the exercise are relevant... "
Id. 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 fact 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." FEMA Petition at 10. b The NRC believes such a construction of Contentions EX 15 and 16 is neither mandated by a literal read' ig of the Contentions nor was it intended by the Licensing Board.
The ultimate issue to be litigated is whether "the exercice itself revealed any deficiencies which preclude a finding of reasonable assurance that protectivo measures can and will be taken.
i.e., fundamental flaws in the plan."
CLI-86-11, supra, 23 NFC at 581.
It is the results of the c::ercise that must form the basis for a finding of " reasonable assurance".
In assessing whether the results of that exercise will support a finding of reasonable assurance, to some I
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".
-17/ FEffA further asserts at p.9 of its Petition that:
"The only issue relevant to the Licensing Board is given the scenario of the day of 1
the exercise, did the steps taken by the emergency response organizations have an impact on dose rates."
The issue here, as in 4
all fiRC licensing proceedings, is whether statutory and regulatory requirements have been met.
l
1 It is in this limited context that the scope of the exercise is to be litigated in this proceeding. $
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 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 ability to implement its plan.
See Con-tentions EX 1G and 16.
Nowhere is it alleged 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, FEtTA 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 icint NRC/ FEMA " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants," HUREG-0654/ 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.
I
_ 17 _
clements are expected to be tested in a planning 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).
Similarly, Planning Standard N.1.b.
provides, inter alia, that the scenario should be varied year to year "such that all major elements of the plans end preparedness organizations are tested within a five year period. "
We see nothing in the Licensing Board's December 11, 1986 ficmorandum and Order which would challenge this approach.
It is clear that the choice of the particular elements to be tested is committed to the FEf.!A 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 emerFency plans can be implemented. E 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 to that question will be in the affirmative.
M/ See, Union of Concerned Scientists v. NRC, 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 prerogatives, particularly the conduct and design of the exercise. "
Piemorandum and Order of December 11,1986, at 14. b The Licensing Board simusrly rejected FEMA's conclusion that by admitting Contentions EX 15 and 16, it had determined that an exercise "must be the best possible. " M.
It stated that it was only reviewing whether the exercise met Commission regulatory requirements.
M.
Plainly the Board is only looking at the exercise to se e whether it provides the reasonable assurance that the plan can and wilt be implemented as set out in 10 CFR E 50.47(a)(2).
Intervenors have also interpreted their contentions as not "challeng[ing] FEMA's process for developing an exercise or FEMA's process in conducting exercises", "the exercise design", the exercise scent.rfo, or the design of the exercise scenario.
Intervenors' Brief at 15, 18.
Elmilarly, the Intervenors have stated that the contentions do not maintain that every element in an energency plan must be tested.
,Id. at 15-16.
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 20/ The Licensing Board thus responded to the fears in the affidavit of Robert S.
Ullkinson (attached to FEMA's October 27, 1986 Motion for Reconsideration), that the Board uns looking at FEMA's generic procedures and going to instruct FEMA on the design of exercise scenarios.
- ' these interpretations, and no cause exists to interpret the subject contentions broader than the Intervenors.
Plainly Contentions EX 15 and 16 do not go to FEMA's generic process in the conduct and design of emergency planning exercises, but to the results of the LILCO emergency planning exercise.
CONCLUSION For the reasons set forth above, the Appeal Board should undertake discretionary review of FEMA'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 1 ft 1 flar E. Wag er Cou lel for NRC Staff Dated at Bethesda, f.laryland this Mday of January,1987 21/ FEMA'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 questions here are not generic, but case specific.
They involve only the question of whether the results of the LILCO exercise may be relled on to show there was no " fundamental flaw" in LILCO's emergency plan, and as such it provides a basis for the reasonable assurance 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.
p, cx-; a y..
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 87 JAN 23 P1 :29 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 00Cn' f
3: 1-In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONEE TO FEMA PETITION FOR LEAVE TO APPEAL, APPEAL MEMORANDUM, REQUEST FOR EXPEDITED CONSIDERATION AND REQUEST FOR A' STAY OR DIRECTED CERTIFICATION OF DECEMBER 11, 1986 LICENSING BOARD ORDER" in the above-captionad proceeding have been served on the following by deposit in the United States mail, first class or, an indicated by an asterisk, through deposit in the Nuclear ReFulatory Commission's internal mail system, this 20th day of January,1987:
John H. 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 H. Paris
- Fablan O. 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 Philip McIntire W. Taylor Reveley I!!, Esq.
Federal Emergency Management Donald P. Irwin, Esq.
Agency Hunton a Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Pichmond, VA 23212 m.
o V
)'
_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, tiY 11901 South Lobby - 9th Floor 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 Safety and Licensing Agency Building 2 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.
General Counsel Suffolk County Attorney Federal Emergency !!anagement H. Lee Dennison Building Agency Veteren's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Dr. Monroe Schneider Robert Abrams, Esq.
North Shore Committee Attorney General of the State P.O. Box 231 of New York Wading River, NY 11792 Attn: Peter Dienstock, Eng.
Department of Law Ms. Nora Bredes State of New York Shoreham Opponents Coalition Two World Trade Center 195 East Main Street Room 46-14 Emithtown, 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 flicksville, 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 P.fassapequa, NY 11758 Washington, DC 20555
!!ary M. Gundrum, Esq.
New York State Department of Law 120 Broadway 3rd Floor, Room 3-116 New York, NY 10271 i
lf Mar Wagner /
Cou l for NRO= Staff