ML20207Q331
| ML20207Q331 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/15/1987 |
| From: | Lanpher L, Latham S, Palomino F, Panpher L KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2247 86-01-OL, 86-1-OL, OL-5, NUDOCS 8701270173 | |
| Download: ML20207Q331 (28) | |
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NUCLEAR. REGULATORY COMMISSION
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Before-the Atomic Safety and Licensing Appea M cTecJ " d-
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-5
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(EP Exercise)
(Shoreham Nuclear Power Station,
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Unit 1 )
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s' SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON RESPONSE IN OPPOSITION TO " FEMA PETITION FOR LEAVE TO APPEAL,
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APPEAL MEMORANDUM, REQUEST FOR EXPEDITED CONSIDERATION OF APPEAL OF DECEMBER 11, 1986, ORDER (ASLB NO. 86-01-OL), AND REQUEST FOR STAY OF THAT ORDER WITH RESPECT TO DISCOVERY CONCERNING CONTENTIONS EX 15 AND 16 OR DIRECTED CERTIFICATION TO THE COMMISSION" s
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s TABLE OF CONTENTS Pace I.
The Appeal Board Lacks Jurisdiction over FEMA's Petition 3
A.
The Appeal Board's Decision in ALAB-773 Provides No Basis For Appeal Board Jurisdiction 3
B.
FEMA Has Not Demonstrated Any Basis for Permitting This Interlocutory Appeal 5
II. On the Merits, FEMA's Petition Must be Rejected 13 l
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r-O TABLE OF AUTHORITIES Page Cases Union of-Concerned Scientists v. United States Nuclear Reaulatory Commission, 735 F.2d 1437 (D.C. Cir. 1984),
cert denied, 105 S.Ct. 815 (1985) 16-19 Cleveland Electric Illuminatina Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 NRC 1105 (1982) 5-6 Cleveland Electric Illuminatina Co. (Perry Nuclear Power Plant', Units 1 and 2, ALAB-706, 16 NRC 175 (1982) 8 Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), ALAB-817, 22 NRC 470 (1985) 7-8, 10 Commonwealth Edison Co. (Zion Station, Units 1 and 2),
ALAB-ll6, 6 AEC 258 (1973) 3 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
ALAB-687, 16 NRC 460 (1982) 6-7, 10, 12 i.
Duke Power Co. (Perkins Nuclear Station, Units 1, 2,
and 3), ALAB-433, 6 NRC 469 (1977) 4 Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-780, 20 NRC 378 (1984) 3, 8-9 Lona Island Liahtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333 (1984) 3 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190 (1972) 9 Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533 (1980) 6 Public Service Electric and Gas Co. (Hope Creek Generating Station, Units 1 and 2), ALAB-251, 8 AEC 993 (1974) 4 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190 (1977) 9 I
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Tennessee Vallev Authority (Bellefonte Nuclear Plant, Units 1 and 2), ALAB-237, 8 AEC 654 (1974) 4 Reculations 10 CFR S 50.47(a)(2) 17 10 CFR Part 50, Appendix E, S IV.F.1 1, 11, 19 ii
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January 15, 1987 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Acceal Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
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 REQUEST FOR STAY OF THAT ORDER WITH RESPECT TO DISCOVERY CONCERNING CONTENTIONS EX 15 AND 16 OR DIRECTED CERTIFICATION TO THE COMMISSION" On December 31, 1986, FEMA filed a " Petition for Leave to Appeal, Appeal Memorandum, Request for Expedited Consideration of l
Appeal of December 11, 1986, Order (ASLB No. 86-01-OL), and l
l Request for Stay of that Order with Respect to Discovery Concerning Contentions EX 15 and 16 or Directed Certification to the Commission" (hereafter " FEMA Petition").
FEMA asks in the Petition that the Appeal Board rule that the Licensing Board erred in admitting two contentions in the Shoreham Exercise proceeding -- Contentions EX 15 and 16, which challenge whether the February 1986 Shoreham Exercice complied with Commission requirements (10 CFR Part 50, Appendix E, S IV.F.1) for a " full I
I
participation" exercise.
Pursuant to the Appeal Board's Memor-andum and Order dated January 5, 1987, Suffolk County, the State of New York, and the Town of Southampton (" Governments") hereby respond to the FEMA Petition.1 For reasons discussed below, the FEMA Petition should be rejected as an improper interlocutory appeal.
NRC case law is clear that the Appeal Board should rarely accept an interlocutory appeal of a Licensing Board's admission of particular conten-tions.
In this case, FEMA does not even address,the articulated standards for justifying interlocutory review, much less attempt actually to apply those standards to the circumstances of this case.
In short, FEMA presents no basis upon which t:lis Board could take review.
In addition, in the event this Appeal Board decides nonetheless to reach the merits of this interlocutory appeal, the Governments respectfully submit that a review of the Licensing Board's two orders related to Contentions EX 15 and 16
-- the October 3, 1986, Prehearing Conference Order 2 and the December 11, 1986, Memorandum and Order 3 -- and the pleadings related to those orders will demonstrate that FEMA's objection to the Licensing Board's admission of Contentions EX 15 and 16 is without basis.
1 In the January 5 Memorandum and Order, the Appeal Board denied FEMA's stay request.
The Governments thus do not respond to the Petition insofar as it requests a stay of the Licensing Board's December 11, 1986, Memorandum and Order.
2 Prehearing Conference Order (Ruling on Contentions and Establishing Discovery Schedule), October 3, 1986.
3 Memorandum and Order (Ruling on FEMA's Motion for Reconsideration of and Intervenors' Objections to October 3, 1986, Prehearing Conference Order), December 11, 1986..
O' I.
The Anneal Board Lacks Jurisdiction over FEMA's Petition A.
The Appeal Board's Decision in ALAB-773 Provides No Basis For Acceal Board Jurisdiction FEMA has asserted that "[t]he Appeal Board's jurisdiction over any appeal filed by FEMA in this proceeding is the same as the Appeal Board's jurisdiction to decide Lona Island Lichtina Comoany (Shoreham Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333 (1984)."
Egg FEMA Petition at 1.
FEMA's statement is incorrect.
The Appeal Board's jurisdiction in ALAB-773 rested upon a special exception related to the appealability of discovery orders directed to non-parties.
That exception involves the right af a third person, non-party to prosecute an appeal of any Licensing Board order directing that discovery be carried out against that third party.
This matter, and an explanation of the basis for the Appeal Board's jurisdiction to hear ALAB-773, were discussed in the Appeal Board's decision in ALAB-780.
Egg Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1),
ALAB-780, 20 NRC 378 (1984).
In ALAB-780, the Appeal Board noted, relying on its earlier Zion decision,4 that an order which grants discovery against a non party is immediately appealable while an order which denies discovery against a non party is not immediately appealable.
4 See Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-ll6, 6 AEC 258 (1973)..-.
The instant appeal does not involve a discovery order directed against a non party.
Rather, this dispute involves FEMA's assertion that the Licensing Board erred in admitting Contentions EX 15 and 16 in the Shoreham Exercise proceeding.5 Accordingly, the prior appeal by FEMA in 1984 involving a discovery dispute does not constitute a precedent justifying Appeal Board jurisdiction to consider the instant appeal.
5 FEMA did ask the Appeal Board to stay discovery on Contentions EX 15 and 16 pending resolution of the dispute over the admissibility of those contentions.
As noted above, that stay request already has been denied.
Further, it is clear from FEMA's Petition that the gravamen of FEMA's complaint is not directed to any discovery issue but rather involves the Licensing Board's admission of Contentions EX 15 and 16.
Egg FEMA Petition at 2 where FEMA frames the " Issue on Appeal" as solely concerning the admissibility of Contentions EX 15 and 16.
Further, in responding to FEMA's Petition, the Governments assume that FEMA is a party since it is only parties which have the right to file appeals.
Ege Duke Power Comoany (Perkins Nuclear Station, Units 1, 2, and 3), ALAB-433, 6 NRC 469, 470 (1977); Public Service Electric and Gas Comoany (Hope Creek Generating Station, Units 1 and 2), ALAB-251, 8 AEC 993, 994 (1974); Tennessee Vallev Authority (Bellefonte Nuclear Plant, Units 1 and 2), ALAB-237, 8 AEC 654, 655 (1974).
FEMA states in footnote 1 of its Petition that its status before the NRC Licensing and Appeal Boards is unclear.
The Licensing Board has recently held that for discovery purposes, FEMA has been acting as, and effectively is and will be treated i
as, a party.
See ASLB Memorandum and Order (Ruling on Suffolk County's Motion for Order Compelling FEMA to Answer Interroga-tories), November 19, 1986.
FEMA sought no appeal of that order, although pursuant to a Staff Motion, the matter is presently being reconsidered by the Licensing Board.
At a conference of counsel on January 6, 1987, the Licensing Board indicated that it intended to rule on the Staff's clarification motion. _
B.
FEMA Hss Not Demonstrated Any Basis for Permitting This Interlocutory Anneal FEMA's Petition involves the question whether the Appeal Board has jurisdiction to review on an interlocutory basis the Licensing Board's decision admitting certain contentions in the Shorehan Exercise proceeding.
It is worth noting, in this context, that the Licensing Board in its October 3 Prehearing Conference Order (and as confirmed in its December 11 Memorandum and Order) ruled on the admissibility of 50 contentions proffered by the Governments in the Shoreham Exercise proceeding.
The Licensing Board admitted some of the contentions but denied others.
Thus, FEMA's Petition, which addresses only two contentions, arises out of a situation where there is no underlying Licensing Board Order which has' finality, such as the Licensing Board Order which denies all of the contentions of a particular party.
Accordingly, it is a classically interlocutory situation which now confronts the Appeal Board.
NRC case law is clear that an interlocutory appeal will rarely be granted to consider the Licensing Board's admission of some but not all contentions proffered by a party.
For instance, in the Perry proceeding, the Appeal Board, when confronted with the applicant's appeal of the admission of a contention dealing with hydrogen control, set forth the following guideline:
Review of an interlocutory licensing board ruling via directed certification is discretionary and granted infrequently.
A party invoking review by this means must demonstrate that the board's action "either (a) threatens the party adversely affected with immediate and serious irreparable harm,
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which could not be remedied by a later appeal, or (b) affects the basic structure of the proceeding in a pervasive or unusual manner."
Cleveland Electric Illuminatino Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 NRC 1105, 1110 (1982), quoting Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-S88, 11 NRC 533, 536 (1980).
The Perry Board went on to state that its decision denying interlocutory review was consistent with other cases.
In each instance, a party sought directed certification of a ruling that was assertedly in conflict with Commission case law, policy, or regulations and that effectively expanded the scope or length of a licensing proceeding.
We denied directed certification, however, finding no pervasive or unusual effect on the basic structure of each proceeding.
In sum, a licensing board may well be in error but, unless it is shown that the error fundamen-tally alters the very shape of the ongoing adjudication, appellate review must await the issuance of a ' final' licensing board decision.
15 NRC at 1113 (footnote omitted).
In the Catawba proceeding, the Appeal Board again stressed that it rarely will review the admission of contentions on an interlocutory basis.
After articulating the standard that must be satisfied for interlocutory review (essentially the same as quoted from Perry above), the Board stated:
A ruling that does no more than admit a contention to a proceeding -- whether absol-utely or conditionally -- has a low potential for meeting that standard.
To be sure, inter-locutory review of such a ruling might obviate litigation of the contention and, conse-quently, accelerate the progress of the hearing.
This same consideration is present, however, whenever contentions are admitted. - -
i over objection, thus, it cannot be said that-the avoidance of unusual delay is involved.
Nor is there much latitude for a serious claim that the acceptance of a particular contention will have a pervasive effect on the basic structure of the proceeding.
To the contrary, it is difficult to see how such a step -- ru) matter how improvident it might be
-- could affect that structure in any material way.
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 464-65 (1982) (footnote omitted).
In Catawba, the Appeal Board did accept the appeal but stredsed that it did so only to provide generic guidance, not "to examine each of the contentions in issue and to make individual determinations on their admissibility."
Id. at 465.
In contrast, FEMA's Petition in this case requests the Appeal Board to become involved in precisely that type of examination of individual contentions.
In the Braidwood proceeding, the Appeal Board cautioned that its acceptance of interlocutory review in Catawba was clearly an exception to the general rule of refusing such appeals.
The Board stated:
Nor does our decision to accept the referral of the Licensing Board's ruling in Catawba justify our intercession here.
There we reviewed the Licensing Board's ruling because it raised an issue potentially affecting the case here.
Indeed, in Catawba, we specifically eschewed applying the resolu-tion of the generic issue before us to the individual contentions before the Licensing Board -- a situation analogous to that present here.
Moreover, we were asked by the Catawba Licensing Board to resolve a novel and recurring legal issue.
Although the general l
l standard for interlocutory review is the same l
whether or not undertaken on certification or by referral, we are obviously more likely to intercede where a licensina board believes that its rulina has the tvoe of overall inoact on the croceedina that warrants our :.mmed:. ate attention.
Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), ALAB-817, 22 NRC 470, 475 (1985) (footnote omitted).6 In this case the Licensing Board specifically rejected FEMA's directed certification request.
Egg December 11 Memorandum and Order at 15, n.-8.
FEMA has plainly failed to satisfy (much less even to address) the standards for interlocutory review.
FEMA's failure to address these standards is itself sufficient reason for the Appeal Board to reject the Petition.
Nevertheless, the Govern-ments have attempted to discern from the Petition whether-FEMA has articulated any bases upon which the Board could find that interlocutory review might be justified.
There are no such bases.
The first standard for interlocutory review is whether the Licensing Board ruling " threaten (s) 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 6
Egg also Cleveland Electric Illuminatino Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-706, 16 NRC 1754 (1982)
(" Applicants may well be correct in their claim that the Board erred in its ultimate judgment to admit one or more of these contentions.
That alone, however, does not provide a basis for our interlocutory review.").
There are many other NRC decisions which, similar to those cited above, hold that interlocutory appeals are not favored.
The Appeal Board is obviously familiar with those decisions and thus the Governments will not burden the Board with a long string citation thereof.. _. -
Egg Lona Island Lichtina comoany (Shoreham Nuclear Power Station, Unit 1), ALAB-780, 20 NRC 378, 381 (1984), quoting Public Service Comoany of Indiana (Marble Hill Nuclear Generating Station, Units l'and 2), ALAB-405, 5 NRC 1190, 1192 (1977).
Clearly, FEMA has made no showing whatsoever of an immediate and serious impact which, as a practical matter, cannot be alleviated by a later appeal.
Indeed, the Appeal Board's January 5 denial of FEMA's stay request makes clear that FEMA has not established any irreparable harm.
Further, as discussed below, FEMA's concerns are of the type which clearly can be addressed in a later appeal.
Thus, the first basis upon which discretionary interlocutory review might be premised clearly is not present in this instance.
With respect to the second standard for interlocutory review
-- whether the Licensing Board ruling affects the basic structure of the Shoreham proceeding in a pervasive or unusual manner --
FEMA again has made no showing which would demonstrate a basis for interlocutory review.
Indeed, FEMA makes no allegation that the Licensing Board's admission of Cont'entions EX 15 and 16 will affect the Shoreham proceeding in any pervasive or unusual way whatsoever.
Rather, FEMA's Petition is focussed on allegations that admission of Contentions EX 15 and 16 will adversely affect FEMA, not on how such admission will allegedly affect the Shoreham proceeding.
.").
Such allegations that the Licensing Board's ruling will affect _ _ _
FEMA's alleged " program" in some unspecified way do not fit within the limited circumstances in which discretionary interlocutory review might be available.
The other parties appear to recognize that the admission of Contentions EX 15 and 16 do not affect the Shoreham Exercise proceeding in a manner which merits interlocutory review.
Both LILCO and the Staff initially (in August 15, 1986, filings) opposed admission of Contentions EX 15 and 16.
However, neither LILCO nor the Staff filed objections to the Lice,nsing Board's October 3 Prehearing Conference Order wherein Contentions EX 15 and 16 were initially admitted (LILCO and the Staff did subse-quently support FEMA's objections) and neither LILCO nor the Staff sought to appeal the Board's December 11 Order.
- Indeed, according to the FEMA Petition, the NRC's Office of General Counsel expressly refused a FEMA request that an appeal be taken from the December 11 Order.
Egg FEMA Petition at 2.
This is further indication that this is a matter which does not merit interlocutory review.
Finally, unlike the situation in Catawba, the Licensing Board here has expressly refused to grant certification.
Sag December 11 Order at 15, n. 8.
As the Appeal.
Board noted in Braidwood, such a refusal by the Licensing Board to support certification is added reason for this Board to decline review.
See 22 NRC at 475.
With respect to FEMA's allegation that the admission of Contentions EX 15 and 16 will immediately affect FEMA in some pervasive way, the Governments submit that the allegation is q
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clearly incorrect.
The mere admission of those Contentions has no potential effect on FEMA other than the potential need for FEMA to provide tes'timony on them at the hearing.
Even if after
- a. hearing the Governments are sustained in their allegation that the Shoreham Exercise did not satisfy 10 CFR Part 50, Appendix E, IV.F.1, it is not clear how that result would adversely affect FEMA; however, in any event, FEMA and the other parties will have a full opportunity to argue their positions on appeal if the Governments do prevail on Contentions EX 15 and 16.
This is not i
a situation where the issue will be incapable of review at the end of the case.
Indeed, the appellate review available at the conclusion of the hearing will clearly be more focussed than any review that could be achieved now since a full record will have been compiled.
For much the same reason, there is no basis to suggest that the Board's admission of Contentions EX 15 and 16 will have an immediate or pervasive impact on any other proceedings.
Contentions EX 15 and 16 are Shoreham-specific and pertain directly to the Shoreham Exercise involving LILCO's unique plan.
I There has been no showing at all that these issues or types of l
issues could or would be proffered in other proceedings.
- And, i
l even assuming arauendo the potential that the result of I
l litigation on Contentions EX 15 and 16 might some day have l
applicability to other proceedings, FEMA has stated no basis for finding that such potential would have an adverse impact on other l
proceedings, or otherwise justifies an interlocutory appeal.
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Thus, FEMA has failed to raise a generic issue of the type sometimes considered appropriate for interlocutory review.
Egg Catawba, 16 NRC at 465 (Appeal Board took review, at least in part, because the issues clearly were generic procedural issues which might escape appellate review if not considered immediately).
Finally, it is clear that the Licensing Board has taken steps to ensure that the actual conduct of the Exercise proceeding will be monitored and controlled by the Licensing Board to ensure that FEMA is not unduly burdened.
Thus, the Board stated:
We do not view our ruling as unduly infringing on FEMA'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 regulatory requirements for full participation exercises.
FEMA properly takes no position on that issue.
(See FEMA's November 19 response to intervenors' request for admission 5.)
Indeed resolution of this issue properly belongs to the NRC.
While FEMA may be questioned on its evaluation of the exercise, it may not be questioned concerning whether the exercise meets NRC requirements.
December 11 Order at 14.
The Governments submit that such Licensing Board action is further reason that there is no basis for this Board to accept interlocutory review..
In the Governments' view, the foregoing discussion makes clear that the FEMA Petition is wholly lacking in bases to justify the exercise of interlocutory review.
The Governnents recognize, however, that in deciding whether to exercise interlocutory review, the Appeal Board sometimes looks briefly at the merits of the underlying Licensing Board rulings.
The Governments discuss the merits in the next section, which further supports the Governments' position that the Petition must be rejected.
II.
On the Merits, FEMA's Petition Must be Reiected FEMA's legal argument (sgg pages 6-11 of FEMA's Petition) is l
basically a summary of some of the matters which were argued by l
FEMA in its October 27 and November 10 Motions.7 These matters have been responded to already by all parties and the Licensing Board.
Indeed, the Licensing Board's discussion of Contentions EX 15 and 16, and its reasoning in concluding that they are admissible, are clearly articulated in the October 3 Prehearing Conference Order (pages 3-9, 11-12) and the December 11 Mem)ran-dum and Order (pages 8-15).
In these circumstances, the Govern-ments do not believe it would be useful to respond anew in detail 7
Egg Federal Emergency Management Agency's Motion to Reconsider Atomic Safety and Licensing Board Prehearing Conference Order Dated October 3, 1986 and Memorandum and Supporting Affidavit in Support of That Motion, October 27, 1986; FEMA's Petition to Board for Leave to Supplement its October 27th Memorandum and Supplemental Memorandum in Support of FEMA's October 27th Motion for Reconsideration and FEMA's Response to Suffolk County, State of New York and Town of Southampton l
Objections to Prehearing Conference Order, November 10, 1986.
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to these arguments.
Rather, the Licensing Board's Orders speak for themselves.
They articulate reasoned bases for the admission of Contentions EX 15 and 16 and should not be disturbed by this Board.8 The Governments do wish, however, to offer several comments regarding the Licensing Board's admission of Contentions EX 15 I
-and 16 and FEMA's related appeal.
FEMA asserts that its " appeal is based on the legal premise that questions of ' exercise design and scope or conduct are committed to its (FEMA',s] discretion and are not challengeable in NRC licensing proceedings.'"
FEMA Petition at 7, quoting ASLB December 11 Order at 12.
FEMA further asserts that "(b]y addressing the question of whether the exercise could be better designed.
., FEMA is placed in the I
8 To assist the Appeal Board if it decides to review the underlying record, the Governments list below those briefs which in the Governments' view are most pertinent to any Appeal Board consideration of the matter.
In this regard, there are two substantive Licensing Board Orders:
the Prehearing Conference Order of October 3; and the Licensing Board's December 11 Memorandum and Order.
With respect to the Prehearing Conference 4
Order, the documents (in addition to the Order itself) that may need to be reviewed by the Appeal Board ~(again assuming that the Board is going to consider the merits of this appeal) are the following:
the Governments' exercise-related contentions which were filed on August 1, 1986; the objections to the Governments' contentions filed by the NRC Staff and LILCO on August 15, 1986; and the August 25, 1986, response by the Governments to those LILCO and NRC Staff objections.
The Appeal Board may also want to review the transcript of oral argument concerning the admission of those contentions which occurred on September 24, 1986.
i With respect to the December 11 Memorandum and Order, the Appeal Board may wish to review (in addition to the December 11 Order itself) FEMA's October 27 Motion for Reconsideration of the October 3 Order and FEMA's November 10 Supplement to that Motion, and the November 10 NRC Staff, Governments' and LILCO responses to the FEMA Motion.
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position of competing with the Licensing Board with respect to designing and evaluation of exercises.
FEMA Petition at 9.
FEMA also suggests that, in essence, the Governments have asserted in their contentions that every element of an emergency plan must be tested every time FEMA conducts an exercise.
FEMA Petition at 5, 9.
This carries with it the implication that the Governments are urging the Licensing Board to require a test of LILCO's Plan that goes beyond regulatory standards.
All of the foregoing FEMA assertions -- as;well as many other similar ones contained in the FEMA Petition -- are grossly inaccurate.
First, they sadly distort what the Licensing Board has stated.
The Board stressed that Contentions EX 15 and 16 do not concern FEMA's " conduct and design of the exercise, nor have we determined that the exercise must be the best possible."
December 11 Memorandum and Order at 14.
FEMA ignores this statement as it alleges that the Governments have been permitted to attack the exercise design, scope, and conduct.
Egg Petition at 7, 9.
Second, FEMA has similarly distorted the Governments' contentions.
Significantly, FEMA does not point to one word in the Governments' contentions in which the Governments have l
challenged FEMA's process for developing an exercise or FEMA's processes in conducting exercises.
Similarly, FEMA cannot and does not point to one word in the Governments' contentions in which the Governments allege that every element of an emergency _
plan must be tested.9 And similarly, FEMA does not and cannot point to any place in the Governments' contentions where the Governments urge the Board to require that plans'be tested beyond regulatory requirements.
Given FEMA's arguments, however, it is unfortunately necessary to address briefly the standards which must guide this proceeding and why the Licensing Board was correct in admitting Contentions EX 15 and 16.
As recognized by the Licensing Board (Prehearing Conference Order at 3), these standards are, most fundamentally, set forth in the D.C. Circuit decision in Union of Con.cerned Scientists v. United States Nuclear Reculatory Commission, 735 F.2d 1437 (D.C. Cir. 1984), gert. denied, 105 S.Ct. 815 (1985) (hereafter referred to as "UCE").
While FEMA mentions the UCE decision in its Petition, it, in essence, ignores the requirements of that decision.
In UCE, the United States Court of Appeals for the District of Columbia Circuit held that intervenors in an NRC licensing proceeding have a right to a hearing on any material factor relied upon by the NRC in making its licensing decisions.
This right to a hearing specifically extends to post-exercise evalua-tions of the results of an et rgency planning exercise -- such as FEMA's April 17 Report on the Shoreham exercise -- since the 9
It is irresponsible for FEMA even to imply that the Governments assert the need for an exercise to test every part of a plan.
The NRC Staff previously made such an assertion on August 15 (Staff Response at 16, 18) but the Governments expressly disclaimed any such assertion in a subsequent filing which was served on FEMA.
Egg Governments' August 25 Response at 27, n.22. w.p_-_
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evaluation of exercise results constitutes a material factor in the NRC's decision whether to license a plant.
Egg 735 F.2d at 1437.
The UGE court also made clear that under the NRC's regula-tions, the NRC evaluation of the results of offsite emergency planning exercises is a licensing prerequisite.
Id. at 1441.
There was an exercise of LILCO's Plan on February 13, 1986, and two months later FEMA issued its evaluation of that exercise.
It is clear under UCS, under the NRC's rules (especially 10 CFR S 50.47(a)(2)), and under the Memorandum of Understanding between the NRC and FEMA, that the NRC will rely upon and evaluate the FEMA Report "in assessing whether the exercise demonstrates that an adequate emergency preparedness plan can and will be imple-mented."
Egg 735 F.2d at 1450.
Thus, the FEMA Report consti-tutes material data which the NRC will evaluate and rely upon in the Shoreham proceeding.
Under UCS, the Governments have the right to a hearing on, and a right to contest each portion of, the FEMA Report which will be relied upon or considered by the NRC, since that Report constitutes a material factor in the licensing proceeding.
Egg id. at 1438.
The Governments likewise have a right to urge that, based upon exercise results, certain conclusions which were omitted from the FEMA Report should have been included therein.
In short, the Governments have the right to a hearing to explain what the "results" of the exercise in fact were and, in the process, to challenge and rebut the views of other participants who apparently have different views as to those results.
It is completely without basis for FEMA to allege that the Governments' contentions challenge the exercise design.
As noted above, the Governments have a right to challenge the results and evaluations of the exercise, given the scenario which was used and the LILCO players' responses thereto.
That is what the Governments have done in the contentions.
Under MCE, it is clearly proper for an intervenor to challenge the exercise evalu-ation, the sufficiency of the exercise itself, and the suffi-ciency of the exercise results as a basis for a licensing decision or for the reasonable assurance finding required for licensing.
Thus, the MCS court stated:
Where, as with preparedness exercises, the decision involves a central decisionmaker's consideration and weighing of many other persons' observations and first-hand experiences, questions of credibility, conflicts, and sufficiency surface and the ordinary reasons for requiring a hearing come into the picture.
735 F.2d at 1450 (emphasis added).
The Governments have alleged in Contentions Ex 15 and 16 that there is no basis upon which reliable conclusions can be drawn from the February 13 exercise about the adequacy and imple-mentability of the LILCO Plan, because major portions of the Plan and LILCO's ability to implement it were not demonstrated or evaluated and because the response capabilities of persons and entities essential to plan implementation were not demonstrated or evaluated.
Such contentions do not challenge the scenario or FEMA's alleged role in the design of the scenario.
Rather, they take the exercise as it occurred and the FEMA processes as they, - _ _ - _ _
were applied and challenge the exercise results.
Under HCE, contentions which challenge the sufficiency of the exercise
-results or the bases for any conclusions which the NRC or FEMA may attempt to' draw from the exercise results clearly are proper.
Finally, the Governments point out that at pages 5 through 9 of the October 3 Order and pages 11-15 of the December 11 Memorandum and Order, the Licensing Board set forth in detail why the full participation exercise requirement of Part 50, Appendix E constitutes a regulatory standard which properly is subject to litigation in this proceeding.
Further, the Governments note that at the September 24 oral argument regarding the admissibility of contentions, LILCO took the position that the February 13 exercise did constitute the full participation exercise required by Part 50, Appendix E.
Egg Tr. 16,550-54, 16,557-59, 16,561-62 (Irwin).
The Licensing Board clearly was required, therefore, to admit contentions which contested that issue.
There is no basis for any recensideration by this Board of that holding.10 10 The D.C. Circuit in MCS was dealing specifically with the Part 50, Appendix E exercise requirement.
Egg 735 F.2d at 1451.
In view of the fact that the ECE court reversed the NRC for its failure to adhere to that Part 50 requirement, such requirement is a material factor in this licensing proceeding.
Since it is a material factor in this proceeding, under Egg the Governments nust have a right to contest whether that material factor has been satisfied.
Contentions EX 15 and 16 allege that this material requirement for licensing -- that there be a full participation exercise -- has not been satisfied.
The Licensing Board clearly was correct in finding that the Governments have a right to contest whether a full participation exercise occurred on February 13.
d In sum, the Governments submit that with respect to Contentions EX 15 and 16, the rulings by the Licensing Board in its October 3 and December 11 Orders were correct.
The question whether the February 13 Exercise complied with NRC regulatory requirements and constituted a full participation exercise is clearly a proper subject for litigation under. the UCE case.
There is no basis, therefore, for the Appeal Board to take inter-locutory review of this matter.
Respectfully submi'tted, j
Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 W
- n Herbert H.
Brown Lawrence Coe Lanpher Karla J. Letsche KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 Attorneys for Suffolk County
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i i
F E C Po A,;, O ( F )
Fabian G. Palomino Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Mario M. Cuomo, Governor of the State of New York h.
Stephen B. Latham Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton o
COLKETEP U3 W January 15, 1987
'87 JAN 20 P3 :53 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION GFF u.
a Atomic Safety and Licensina Anneal BoSE5 L h. " ' I
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In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-5
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(EP Exercise)
(Shoreham Nuclear Power Station,
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Unit 1)
)
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CERTIFICATE OF SERVICE I hereby certify that copies of 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 REQUEST FOR STAY OF THAT ORDER WITH RESPECT TO DISCOVERY CONCERNING CONTENTIONS EX 15 AND 16 OR DIRECTED CERTIFICATION TO THE COMMISSION" have been served on the following this 15th day of January, 1987 by U.S. mail, first class, except as otherwise noted.
John H. Frye, III, Chairman Admin. Judge B. Paul Cotter, Jr.
Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Panel 4350 East West Highway U.S. Nuclear Regulatory Commission Bethesda, Maryland 20814 4350 East West Highway Bethesda, Maryland 20814 Dr. Oscar H. Paris Mr. Frederick J. Shon Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555
-Q Lando W. Zech, Jr., Chairman Comm. James K. Asselstine U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Room 1113 Room 1136 1717 H Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 Comm. Frederick M. Bernthal.
Comm. Kenneth M. Carr U.S.-Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Room 1156 1717 H Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 Comm. Thomas M. Roberts William C. Parler, Esq.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Room 1103 10th Floor 1717 H Street, N.W.
1717 H Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20555 William R. Cumming, Esq.**
Anthony F. Earley, Jr., Esq.
Spence W. Perry, Esq.
General Counsel Office of General Counsel Long Island Lighting Company Federal Emergency Management Agency 175 East Old Country Road 500 C Street, S.W., Room 840 Hicksville, New York 11801 Washington, D.C.
20472 Clerk-W. Taylor Reveley, III, Esq.*
Suffolk County Legislature Hunton & Williams Suffolk County Legislature P.O. Box 1535 Office Building 707 East Main Street Veterans Memorial Highway Richmond, Virginia 23212 Hauppauge, New York 11788 Mr.
L. F. Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C.
20555 Mary M. Gundrum, Esq.
Hon. Michael LoGrande New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 k
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i L
MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 Martin Bradley Ashare, Esq.
Fabian G. Palomino, Esq.
Suffolk County Attorney Special Counsel to the Governor Bldg. 158 North County Complex Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 Mr. Jay Dunkleburger Mr. Stuart Diamond New York State Energy Office Business / Financial Agency Building 2 NEW YORK TIMES Empire State Plaza 229 W. 43rd Street Albany, New York 12223 New York, New York 10036 David A. Brownlee, Esq.
Bernard M.,Bordenick, Esq.**
Kirkpatrick & Lockhart U.S. Nuclear Regulatory Commission 1500 Oliver Building Washington, D.C.
20555 Pittsburgh, Pennsylvania 15222 Mr. Philip McIntire Alan S. Rosenthal, Chairman Federal Emergency Management Agency Atomic Safety and Licensing 26 Federal Plaza Appeal Board New York, New York 10278 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Gary J. Edles Atomic Safety and Licensing Mr. Howard A. Wilber Appeal Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Washington, D.C.
20555 U.S.
Nuclear Regulatory Commission l
Washington, D.C.
20555 By Federal Express d
y
- By Hand Delivery (1/16/87) g,p j
Lawrence Coe Lanpher "
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