ML20212C998
| ML20212C998 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/02/1987 |
| From: | Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Federal Emergency Management Agency |
| References | |
| CON-#187-2639 ALAB-861, OL-5, NUDOCS 8703040039 | |
| Download: ML20212C998 (27) | |
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. e 26M DCCKETED uwRC UNITED STATES OF AMERICA NUCLEAR REGULATORY' COMMISSIg wa -2 P3 :40 ATOMIC SAFETY AND LICENSING APPEAL _ BOARD: ._
C0cw m Administrative Judges: MU'C Alan S. Rosenthal, Chairman March 2, 1987 Gary J. Edles (ALAB-861)
Howard A. Wilber SERVED MAR 031987 In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
)
(Shoreham Nuclear Power Station, ) (EP Exercise)
Unit 1) )
)
William R. Cumming, Washington, D.C., for the Federal Emergency Management Agency.
Donald P. Irwin, Richmond, Virginia, for the applicant Long Island Lighting Company.
Karla J. Letsche, Washington, D.C.- (with whom Martin Bradley Ashare, Hauppauge, New York, Herbert H. Brown and Lawrence Coe Lanpher, Washington, D.C., Fabian G.
Palomino, Albany, New York, and Stephen B. Latham, Riverhead, New York, were on the brief) for the intervenors Suffolk County, New York, et al.
Edwin J. Reis (Mary E. Wagner on the brief) for the Nuclear Regulatory Commission staff.
MEMORANDUM AND ORDER Before us is the petition of the Federal Emergency Management Agency (FEMA) for leave to appeal from portions of the Licensing Board's December 11, 1986 memorandum and order in the emergency planning exercise phase of this operating license proceeding involving the Shoreham nuclear E W M ai o';888saa av PDR
2 facility.1 Specifically, FEMA seeks interlocutory review of the reaffirmation in that order of the Board's prior acceptance for litigation of Contentions Ex 15 and 16, which had been advanced by intervenors, Suffolk County, New York, et al.2 In essence, these contentions assert that the February 13, 1986 exercise concerned with the emergency response plan of the applicant Long Island Lighting Company (LILCO) "could not and did not yield valid or meaningful results" respecting LILCO's ability to implement that plan.3 According to the contentions, the exercise "did not include demonstrations or evaluations" of either " major portions" of the plan or the " emergency response capabilities of many persons and entities relied upon to implement" the plan.4 As a consequence, the contentions aver, the exercise results 1
See LBP-86-38A, 24 NRC .
2 The FEMA petition also requested a stay of the December 11 order insofar as it permitted discovery concerning Contentions Ex 15 and 16. We denied that request in a January 5, 1987 order (unpublished).
3 Suffolk County, State of New York, and Town of Southampton Memorandum Transmitting Exercise Contentions (August 1, 1986) at 16-31.
4 Id. at 16, 25. In contrast to all other emergency response plans examined to date, both the offsite and onsite portions of this plan were developed and tested without the participation of state and local officials. See ALAB-818, 22 NRC 651, 659 (1985).
3 did not provide a basis for a finding of " reasonable assurance" that adequate protective measures can and will be taken in the event of a radiological emergency at Shoreham.5 FEMA maintains that the admission of the contentions to the proceeding was foreclosed by an earlier Commission decision in this proceeding 6 and, further, that it will be irreparably harmed unless the contentions are excluded at this' juncture. LILCO endorses FEMA's claim of Licensing Board error and urges us to rectify it. The intervenors insist that we lack jurisdiction to entertain the petition because FEMA is not a party to the proceeding; that, in any event, the well-established standards for interlocutory appellate review are not met here; and, finally, that Contentions Ex 15 and 16 were correctly accepted for litigation. For its part, the NRC staff urges us to undertake an examination of the merits of the controversy and to affirm the Licensing Board's admission of the contentions.
For the reasons stated below, we deny the petition.
5 See 10 CFR 50.47 (a) (1) .
6 See CLI-86-ll, 23 NRC 577 (1986).
4 A. As the intervenors stress, FEMA was not admitted to this proceeding as a party. But it does not perforce follow that FEMA lacks the standing to mount an appellate challenge to the admission of Contentions Ex 15 and 16. To the contrary, the natter is in considerable doubt.
In its brief to us, FEMA rested its claim of entitlement to seek appellate review upon the fact that, three years ago, we entertained on the merits its appeal from a Licensing Board order requiring it to release to Suffolk County certain agency documents concerning FEMA's emergency preparedness determinations for the Shoreham facility.8 But that action is not controlling here. For, as we explained in a subsequent opinion in this proceeding, its foundation was the settled principle that a non-party has the right to take an immediate appeal from an order FEMA participates in NRC proceedings pursuant to a Memorandum of Understanding (MOU) between itself and this Commission. The latest version of the MOU was signed in April 1985 and published at 50 Fed. Reg. 15,485 (1985). It provides, inter alia, that FEMA will appear in NRC licensing proceedings as part of the presentation of the NRC staff.
Although its counsel "will normally present FEMA witnesses and be permitted, at the discretion of the NRC licensing board, to cross-examine the witnesses of parties, other than the NRC witnesses, on matters involving FEMA findings and determinations, policies and operations," the MOU explicitly states that " FEMA is not a party to NRC proceedings." Id.
at 15,487.
8 See ALAB-773, 19 NRC 1333 (1984).
5 granting discovery against it.9 In this instance, FEMA does not challenge a discovery order but, rather, is endeavoring to narrow the scope of the proceeding by the elimination of certain contentions admitted by the Licensing Board.
Nothing in any prior decision of the Commission or an appeal board directly supports the proposition that a non-party may pursue such a course.
By the same token, however, it is clear that at least some non-parties to NRC licensing proceedings do possess broad appellate rights -- i.e., states and other governmental bodies participating in the proceeding by virtue of 10 CFR 2. 715 (c) .11 FEMA, of course, is not such a participant. Rather, its role in our proceedings appears to be sui generis: insofar as we are aware, FEMA's responsibilities and privileges under its Memorandum of 9 ~
ALAB-780, 20 NRC 378, 380-81 (1984) (citing Commonwealth Edison Co. (Zion Station, Units 1 and 2),
ALAB-ll6, 6 AEC 258 (1973), and noting that the same right exists in federal judicial practice).
10 To be sure, FEMA did ask us to stay discovery on Contentions Ex 15 and 16 pending the outcome of its petition. But as earlier noted (supra note 2), the stay request was denied. In this connection, it is our understanding, based on information provided at oral argument, that discovery on the contentions has now been completed. See App. Tr. 15-16.
See Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-317, 3 NRC 175, 176-80 (1976).
6 Understanding I are markedly different from those possessed o
by any other agency or organization. Whether it is entitled to the same appellate rights as enjoyed by state and local governments invoking Section 2.715(c) is thus an open and difficult question.
Fortunately, in the circumstances of this case, it is unnecessary for us to resolve the question. For this much is plain: whatever may be its scope, FEMA's right to obtain interlocutory appellate review of an order concerned with the issues to be litigated in the proceeding cannot exceed that enjoyed by the entities having acknowledged full-party status -- i.e., the applicant, the intervenors, and the NRC staff.13 As will be seen, on a showing akin to that made by FEMA in its appellate papers and at oral argument, none of those parties would satisfy the standard for obtaining at this juncture appellate review of the interlocutory order that FEMA would have us overturn. This being so, irrespective of how one may view FEMA's status in the proceeding, its petition must fail.
12 See supra note 7.
13 It is true that, as previously noted, a non-party (but not a party) may take an immediate appeal from a discovery order. This is attributable, however, to the fact that, as to the non-party, such an order has the requisite
- degree of finality (i.e., is not deemed interlocutory). See Zion, 6 AEC at 258.
7 B.1. As we long ago observed, "(t]he general policy of the Commission does not favor the singling out of an issue for appellate examination during the continued pendency of the trial proceeding in which that issue came to the fore."14 In the fulfillment of this policy, the Rules of Practice (with a limited exception not available to FEMA here) explicitly proscribe interlocutory appeals from Licensing Board orders.
To be sure, this proscription does not preclude a party from requesting that we exercise our discretion, conferred by the directed certification provisions in the Rules of Practice, to undertake an interlocutory review of a particular ruling below.I7 Because of our obligation to
~
j give effect to Commission policy respecting such reviews, however, we have granted directed certification only in the most extraordinary circumstances. More specifically, as stated in the Marble Hill proceeding:
Almost without exception in recent times, we have undertaken discretionary interlocutory review only 1
14 Public Service Co. of New Hampshire (Seabrook
! Station, Units 1 and 2), ALAB-271, 1 NRC 478, 483 (1975).
- We additionally took note of the fact that a similar policy governs federal judicial proceedings. Id. at page 483 n.11.
15 10 CFR 2.730 (f) . The exception is found in 10 CFR
- 2.714a, discussed infra pp. 10-11.
16 See 10 CFR 2.718 (i) .
17 See Seabrook, 1 NRC at 482-83.
i l
L_.
8 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 later appeal or (2) affected the basic structure in a pervasive or unusual manner.pg the proceeding Given that the injection of one or more additional issues into an ongoing case seldom has a pervasive or unusual effect on the basic structure of a proceeding, we have traditionally declined to review on an interlocutory basis rulings that simply admit another contention.19 The basic structure of an ongoing adjudication is not changed simply because the admission of a contention results from a 18 Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), _ALAB-405, 5 NRC 1190, 1192 (1977). See also Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 and 3), ALAB-742, 18 NRC 380, 383-84 (1983) (" interlocutory appellate review of licensing board orders is disfavored and will be undertaken as a discretionary matter only in the most compelling circumstances."). Accord South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1),
ALAB-663, 14 NRC 1140, 1162 (1981); Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), ALAB-637, 13 NRC 367, 370 (1981); Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-635, 13 NRC 309, 310 (1981); Pennsylvania Power and Light Co.
(Susquehanna Steam Electric Station, Units 1 and 2),
ALAB-593, 11 NRC 761 (1980); Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-588, 11 NRC 533, 536 (1980); Puget Sound Power and Light Co. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-572, 10 NRC 693, 694 (1979); Offshore Power Systems (Floating Nuclear Power Plants) , ALAB-517, 9 NRC 8, 11 (1979).
19 See, e.g., Cleveland Electric Illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2), ALAB-706, 16 NRC 1754 (1982). Cf. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 464-65 (1982), rev'd in part on other grounds, CLI-83-19, 17 NRC 1041 (1983).
9 licensing board ruling that is important or novel,20 or may conflict with case law, policy, or Commission regulations.21 Similarly, the mere fact that additional issues must be litigated does not alter the basic structure of the proceeding in a pervasive or unusual way so as to justify interlocutory review of a licensing board decision.22 Just last June, we reemphasized these considerations in the context of the endeavor of the Attorney General of Massachusetts to obtain interlocutory appellate review of the rejection of a contention that he had submitted in the Seabrook proceeding. Although noting our doubt that the Licensing Board had correctly rejected the contention, we determined that it nonetheless did "not appear that the strict standards for the grant of discretionary interlocutory review are met here." This was because:
20 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-791, 20 NRC 1579, 1583 (1984).
21 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 NRC 1105, 1112-13 (1982). See also Pennsylvania Power & Light Co.
(Susquehanna Steam Electric Station, Units 1 and 2),
ALAB-641, 13 NRC 550, 552 (1981) (directed certification denied despite allegations that the Licensing Board's ruling was "in the teeth of the Commission's regulations and the Administrative Procedure Act" and "may have erroneously expanded the issues to be tried").
Palo Verde, 18 NRC at 384; Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2),
ALAB-741, 18 NRC 371, 378 (1983).
10 We employ our directed certification authority only where a licensing board ruling either threatens the party adversely affected by it with immediate and serious irreparable impact that, as a practical matter, could'not be alleviated by a later appeal, or affects the basic structure of the proceeding in a pervasive or unusual manner.
Neither test ordinarily is satisfied where a licensing board simply admits or rejects particular issues for consideration in a case.23 It need be added on this score only that any relaxation of the Marble Hill directed certification standard at this late date to accommodate the FEMA challenge now before us would appear to clash with the purpose behind 10 CFR 2.714a.
That section provides the single exception to the general proscription against interlocutory appeals. Under the express provisions of the section, a party may appeal from the acceptance or rejection of contention (s) at the threshold if, but only if, such acceptance or rejection controlled the Licensing Board's disposition of the petition for intervention advancing the contention (s) . Thus, for example, a would-be intervenor may appeal immediately the rejection of all of its contentions and the resultant denial of its petition.24 (Should, however, at least one of its 23 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-838, 23 NRC 585, 592 (1986),
(citing (in addition to Marble Hill) Project Management Corp. (Clinch River Breeder Reactor Plant), ALAB-330, 3 NRC 613, 615, rev'd on other grounds, CLI-76-13, 4 NRC 67 (1976)).
24 See 10 CFR 2.714a(b).
11 contentions be accepted and its petition is granted, an interlocutory appeal will not lie.25) Conversely, in circumstances where an intervention petition is granted on the strength of the acceptance of one or more of the contentions set forth therein, another party to the proceeding may appeal at once if its claim is that all of the contentions should have been rejected and the petition 6
therefore denied.
Had it so desired, the Commission could have conferred a broader entitlement to obtain interlocutory review of threshold Licensing Board action on contentions. More particularly, it could have authorized an interlocutory appeal from the acceptance or rejection of any contention, whether or not the Licensing Board's ruling affected the grant or denial of the intervention petition. That that alternative was not adopted provides room for a reasonable inference that the Commission was persuaded that, where the
} grant or denial of intervention is not in issue, absent exceptional circumstances the appellate review of Licensing Board action on the admission of particular contentions should await the rendition of an initial decision.
25 See, e.g., Puget Sound Power and Light Co.
(Skagit/Hanford Nuclear Power Project, Units 1 and 2),
ALAB-712, 17 NRC 81 (1983).
See 10 CFR 2.714a(c).
12
- 2. In light-of the foregoing, the FEMA petition might well have been a fit candidate for summary denial. We were deterred from pursuing that course, however, by the representation in the petition that, unless the admission of Contentions Ex 15 and 16 were overturned at this time,
" FEMA's ongoing exercise program [would] be irreparably harmed."27 Although nothing in th'at filing adequately supported such a sweeping claim, we nonetheless could not dismiss it lightly. If, in fact, a sister federal agency was being threatened with immediate and serious irreparable programmatic injury because of Licensing Board action, our intercession might indeed be compelled.
Accordingly, we decided to take the unusual step of calendaring the FEMA petition for oral argument. And its counsel was orally requested in advance of the argument to be prepared to particularize the irreparable programmatic harm that FEMA assertedly would suffer unless Contentions Ex 15 and 16 were excluded from the proceeding at this time.28 FEMA Petition for Leave to Appeal, etc. (December 31, 1986) at 11.
28 As a general rule, petitions for interlocutory review are acted upon without oral argument. If the petitioner's papers do not themselves establish that the Marble Hill standard is met, that is usually the end of the matter.
13
- a. In response to that request, we were told by counsel at the oral argument that, as a consequence of the admission of Contentions Ex 15 and 16, FEMA would have to reallocate its limited resources from currently operating facilities to non-operating plants.29 When pressed to develop this proposition, however, counsel conceded that discovery (in the form of document production and the taking of the depositions of FEMA witnesses) would be completed on O
the following day (i.e., February 6). He further acknowledged that FEMA did not intend to present at the evidentiary hearing witnesses other than those individuals earlier designated by FEMA and already deposed. According to counsel, FEMA's concern about the expenditure of resources was rooted in the amount of time that its witnesses might be required to spend at the hearing:
MR. CUMMING [ FEMA Ccunsel): . . . If the Board were able to represent that FEMA [would be] on and off the stand in three days with respect to the other parties' interest in our witness, that might (present a different situation]. But we believe that in fact because of Contentions (Ex] 15 and 16 we will have a substantially more lengthy proceeding, our witnesses will be on the stand far longer than three days, and in fact perhaps even months.
29 App. Tr. 12-13.
30 App. Tr. 15-16.
31 App. Tr. 17.
14 JUDGE EDLES: And if we get these two contentions out of there they will not be on for months; is that what you're telling me?
MR. CUMMING: I would say it substantially confines the scope of the proceeding to what we did on the day of the exercise agg not what we did not do and why we did not do it This falls far short of the showing required to support a claim of threatened irreparable injury. To begin with, as the Court of Appeals for the District of Columbia Circuit has pointed out, "[allthough the concept of irreparable harm does not readily lend itself to definition, the courts have developed several well known and indisputable principles to guide them in the determination of whether this requirement has been met." One of those principles is that "the injury must be both certain and great; it must be actual and not theoretical."- And implicit in that principle is the further requirement that the movant substantiate the claim that irreparable injury is "likely" to occur. See Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d [841, 843} n.3 [D.C. Cir. 1977]. Bare allegations of what is likely to occur are of no value since the court must decide whether the harm will in tact occur. The movant must provide proof that the 1. arm has occurred in the past and is likely to occur again, or proof indicating that the harm is certain to occur in the near future.
Further, the movant must shcw that the alleged harm will directly result fggm the action which the movant seeks to enjoin 32 App. Tr. 17-18.
33 Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.
(Footnote Continued)
15 Manifestly, no such proof has been provided by FEMA here.
To the contrary, nothing more than rank speculation undergirds its counsel's assertion that the addition of the two contentions will cause its witnesses to "be on the stand far longer than three days, and in fact perhaps even months."
Further, it is equally well-settled -- both in the courts and in our practice -- that "'[m]ere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury.'"34 Even had FEMA (Footnote Continued)
Cir. 1985). That decision involved an endeavor to stay the operation and effect of certain orders issued by the Federal Energy Regulatory Commission. One of the criteria for the grant of such relief is, of course, a showing by the movant that, in the absence of a stay, it likely will be irreparably harmed. Virginia Petroleum Jobbers Ass'n v.
FPC, 259 F.2d 921, 925 (D.C. Cir. 1958). The Commission's Rules of Practice governing stay applications also adopt this criterion (as well as the others set forth in Virginia Petroleum Jobbers). See 10 CFR 2.788(e). Thus, most of the judicial and Commission jurisprudence in the area of irreparable injury has been developed in connection with stay applications. That consideration does not, however, affect the application of the jurisprudence here: 1.e.,
there is no reason to import a different and unfamiliar concept of irreparable injury where the question is the entitlement to interlocutory appellate review rather than to a stay pendente lite.
34 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1964) (quoting our decision in Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-395, 5 NRC 772, 779 (1977), which in turn quoted Renegotiation Board v. Bannercraft, 415 U.S. 1, 24 (1974)). See also Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-385, 5 NRC 621, 628 (Footnote Continued)
16 established the requisite degree of probability that its witnesses would be required to devote a protracted period of time to the hearing on Contentions Ex 15 and 16, its irreparable injury claim would have been torpedoed by this principle. For nothing put before us lends credence to its counsel's insistence that, unless relieved of the obligation to provide testimony at the hearing on Contentions Ex 15 and 16, FEMA will be required to divert resources from currently operating facilities to non-operating plants. In this connection, we were told at oral argument by intervenors' counsel, without contradiction, that only one of the three identified FEMA witnesses is employed by that agency (the other two being contractor employees) .35 We were additionally informed that the FEMA employee has been transferred out of the radiological emergency preparedness program and will serve as a witness in this proceeding on a detail.36 In light of these apparent facts, it is difficult to see any possible basis for a conclusion that FEMA would be threatened with irreparable programmatic injury if its (Footnote Continued)
(1977) (quoting Virginia Petroleum Jobbers, 259 F.2d at 925, to the effect that "[m]ere injuries, however substantial, in terms of money, time and energy" do not constitute irreparable harm for the purposes of obtaining stay relief) .
35 App. Tr. 57. ,
36 Ibid.
,M-- -
17 counsel's prognostication respecting the length of the hearing on Contentions Ex 15 and 16 were to turn out to be correct. Be that as it may, it was FEMA's obligation to demonstrate, rather than simply to allege, that more is here involved than the necessity to incur costs that would be avoided if its witnesses were not called upon to testify on the contentions in issue.
- b. FEMA's counsel also maintained at oral argument that the litigation of Contentions Ex 15 and 16 would irreparably damage his agency's credibility "with respect to the public's understanding of its role in emergency planning," as well as "significantly" affect "the credibility of the reasonable assurance we give to the Commission when we in fact sign off on the dotted line, so to speak, with respect to either a plan or an exercise."37 We are unpersuaded that this is so.
It appears to us, as it does to the intervenors and the staff, that Contentions Ex 15 and 16 present this question:
whether the exercise conducted with respect to the LILCO emergency response plan (1) substantially met the regulatory requirements for a full-participation exercise, and (2) was sufficient to enable its results to serve as a basis for a finding of reasonable assurance that adequate protective 3
App. Tr. 15.
1
, x ;
, s',s 18 measures.can'and will be taken in the event of a radiological emergency. If the contentions remain in the proceeding, tite.FEMAwitnessesundoubtedly[willbecalled n
upon to address the question. It most likely also will be
. 1 addressed by, witnesses for the intervenors (and very n ,'3,
- , possibly'in the testimony sponsored by other parties). 0
, , In its initial decision, the Licensing Board will render its findings on the question, which will then be -
subject to several levels of appellate review. The final result of that review may or may not correspond with FEMA's
- s'- articulat,ed position. Even if its thinking is not' '
5 \
4
, x 38'See NRC Staff Response to FEMA Petition for Leave to.
Appeal, etc. (January 20, 1987) at 17; App. Tr. 6 3 - 6 4 ','
- y. 81-82. In this connection, we reject FEMA's interpretation N of CLI-86-11, the. Commission memorandum and order calling s for- the initiation of"a Licensing Board hearing in connection with the LILCO emergency plan exercise. More particularly, we do not agree with FEMA that the Commission's directive that the~ Board examine the "results" of the exercise forecloses any' review of the scope or design of the exercise itself.
Such a reading of CLI-86-11 would effectively confer u'pon FEMA and the NRC staff,'which jointly decide the
' elements to be tested, the unreviewable authority to determine that their sampling of observable elements of the LILCO plan was sufficient to satisfy Commission regulations.
3 While FEMA's professional judgment as to what elements should be tested at the pre-license ' stage is entitled to substantial deference, the commiss:'.on's regulations plainly
, accord interested parties an opportunity to rebut FEMA's views on questions concerning the " adequacy and
, implementation capability" of the plan.\ See 10 CFR 50.47 (a) (2) . And the determination of whether the LILCO plan, including the exercise, satisfies the Commission's regulatory requirements rests squarely and exclusively in the hands of the Commission.
x s
I
19
~ ultimately accepted, however, it scarcely follows that-FEMA's credibility would be irreparably harmed. Whenever there is a conflict-in expert testimony, the views of at '
least one. expert necessarily will.be rejected. If such rejection were enough of itself to destroy credibility, the j
' world would be heavily populated with discredited experts.
More'important, as previously noted, the Commission's regulations plainly allow FEMA's views on the. sufficiency of an emergency response plan to be challenged by interested
! parties.39 Inasmuch as that type of challenge seemingly is not deemed a serious threat to FEMA's credibility, why t
should a similar challenge to FEMA's conclusions regarding l the sufficiency of an emergency response-plan exercise be considered such a threat? We can think of no reason and FEMA supplied none.4
, 3. One further matter need be addressed. In its l'
appellate papers, FEMA asked that, should we decline to conduct an interlocutory review of the acceptance of
~
Contentions Ex 15 and 16, the question of the propriety of 39 See supra note 38.
40 j There was some hint in counsel's argument that FEMA might regard the requirement that it respond to Contentions Ex 15 and 16 (i.e., explain its position on the sufficiency of the exercise) as per se bringing its credibility into question. Suffice it to say that we are at a loss to understand how that could be so.
t 4
.. . . - . , . _ . . , . - , . . - . . . . , ....-____m..m. - . _ _ . . . _ . , . . . . _ . . . . . _ _ _ . , _ _ _ , , , , . . . _ . , _ . . . _ . . .
20 that acceptance be certified by us to the Commission. We decline to do so. The Commission has at least implicitly approved the Marble Hill standard for directed certification and our rigorous application of that standard over the years in the furtherance of the Commission's own policy against interlocutory appeals. In addition, none of the doctrines we have invoked in concluding that the standard is not met in the circumstances of the present case can be considered either novel or controversial. This being so, we could not accede to FEMA's alternative request without implying a belief that the Commission is likely to depart from long-established principles that have enjoyed its explicit or tacit endorsement. Needless to say, we entertain no such belief.
Treated as a request for directed certification under 10 CFR 2.718 (i) , the FEMA petition for leave to appeal from the Licensing Board's acceptance of Contentions Ex 15 and 16 is denied. FEMA's alternative request that the ruling below be certified to the Commission is likewise denied.41 41 Because they believe that interlocutory review is inappropriate here, Messrs. Rosenthal and Wilber do not reach the merits of the controversy. Nothing beyond that consideration should be inferred from the fact that they have not joined in the views expressed in Mr. Edles' concurring opinion.
. - . . - .. . . .. .=- .
. 21 It is so ORDERED.
FOR THE APPEAL BOARD
. i . . . A. Lt J Barbara A. Tompkins'
' Secretary to the Appeal Board The concurring opinion of Mr. Edles follows, pp. 22-27, infra.
3 i
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22 sMr. Edles, concurring:
I join in the Board's conclusion _that there is no reason to take up FEMA's appeal _from the Licensing Board's admission of Contentions Ex 15 and 16 or toLcertify_the
~ issue to the Commission. FEMA is a critical partner in determining the adequacy of emergency plans and a special participant in Commission proceedings. Like my colleagues,.
I do not dismiss lightly its assertion of immediate and serious irreparable. programmatic injury.as a consequence of the Licensing Board's action. But I join fully in our determination that, despite every opportunity'to do so, FEMA has simply failed to demonstrate that it is likely to be harmed if the contentions are litigated.' I would add, however, that the Licensing Board properly admitted the contentions.
Section IV of Apperdix E to 10 CFR Part 50, requires that "[a] full participation exercise which tests as much of the licensee, State and local emergency plans as is reasonably achievable without mandatory public participation" be conducted "within 1 year before the issuance of the first operating license for full power and prior to operation above 5% of rated power . . . and shall include participation by each State and local government within the plume exposure pathway EPZ and each State within
23 the ingestion exposure pathway EPZ." As the Commission explained in CLI-86-11, a review of the exercise results is designed to reveal if there are any deficiencies in the LILCO plan that would preclude a finding of reasonable assurance that adequate protective measures can and will be taken in the event of an emergency.2 The Commission authorized the admission of contentions which satisfy the specificity and other requirements of 10 C.F.R. 5 2.714 by (1) pleading that the exercise demonstrated fundamental flaws in LILCO's plan, and (2) by providing bases for the contentions which, if shown to be true' w uld demonstrate a fundamental flaw in the plan.3 The two contentions admitted by the Licensing Board allege essentially that the Shoreham exercise did not satisfy Commission regulatory requirements. I have no' doubt that a failure to satisfy those requirements -- such as a demonstrated failure to conduct a full participation exercise in accord with Appendix E to Part 50 -- would constitute a fundamental flaw in the LILCO plan that could bear on a Commission determination that there is reasonable 1
The Commission has recently proposed to relax the timing requirement for a full participation exercise prior to issuance of a full-power operating license to allow such exercise to be held within two years before issuance of the license. See 51 Fed. Reg. 43,369 (1986).
2 23 NRC at 581.
3 Ibid.
24 assurance that adequate protective measures can and will be taken in the event of an emergency. While the Commission has some degree of flexibility in establishing the scope of the exercise adjudication, the intervenors would appear to be entitled at least to raise allegations that the exercise failed in a substantial manner to demonstrate compliance with critical aspects of the Commission's emergency planning regulations.4 It seems clear to me, moreover, that the two contentions are not intended to focus on generic aspects of FEMA's exercise review program. To the contrary, as FEMA readily concedes, the Commission is "the arbiter of its own regulatory process" and " FEMA cannot speak to the issue of what is a ' full participation' exercise under NRC regulations." As the staff aptly observes, the choice of the particular elements to be tested is committed to the FEMA officials designing the exercise . . . . [B]ut the sampling must be broad enough to give reasonable assurance that the emergency plans can be implemented . . . To the extent that the Licensing Board will be looking at the scope of the exercise, it is not to determine 4
See Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1444-48 (D.C. Cir. 1984). In this connection, the court was seemingly prepared to endorse the Commission's distinction "that the exercise is only relevant to its licensing decision to the extent it indicates that emergency preparedness plans are fundamentally flawed, and is not relevant as to minor or ad hoc problems occurring on the exercise day." Id. at 1448.
FEMA Petition at 3.
l 25 whether better exercises could be developed but solely to test whether this exercise was sufficient so that the results . . . could form a basis for a finding that there is reasonable assurance that adeguate protective measures can and will be taken FEMA appears concerned that the Licensing Board may, in due course, "second-guess" its design of the Shoreham exercise, i.e., the Board may conclude that the exercise was insufficient to demonstrate that the LILCO plan will work.
The contention stage of the proceeding is far too early to address that problem. If, as FEMA and the staff seemingly believe, the record, once developed, will reveal that the exercise fully satisfies all NRC requirements, that will be the end of the matter. If the Board determines that the l LILCO plan is inadequate in a way that implicates the design of the exercise itself, however, some potential admittedly may arise for a conflict between LILCO's need to comply with the Commission's regulatory requirements, on the one hand, and FEMA's unquestioned authority to administer its exercise l
l NRC Staff Response to FEMA Petition for Leave to Appeal, etc. (January 20, 1987) at 17. In this connection, I join fully in our conclusion that the Commission's directive in CLI-86-11 that the Licensing Board examine the "results" of the exercise must be read to authorize the Board to look at the scope or design of the exercise to some degree.
n 26 review program, on the other. The Commission can address that issue if and when it arises.
In any event, I fail to see how the Licensing Board's actions simply admitting the contentions will adversely affect FEMA's design of emergency planning exercises or its exercise review program. FEMA asserts that the Licensing Board may not unilaterally require it to modify its current approach. I agree. Any alteration in the current exercise review approach would seemingly require inter-agency consultation and, perhaps, modification of the current Memorandum of Understanding. That Memorandum provides in pertinent part:
C. Preparation for and Evaluation of Joint Exercises. FEMA and NRC will cooperate in determining exercise requirements for licensees, State and local governments. They will also jointly observe and evaluate exercises. NRC and FEMA will institute procedures to enhance the review of the objectives and scenarios for joint exercises. This review is to assure that both the onsite considerations of NRC and the offsite considerations of FEMA are adequately addressed and integrated in a manner that will provide for a technically sound exercise upon which an assessgent of preparedness capabilities can be based 7
The intervenors are only entitled to litigate matters that are material to the Commission's licensing decision.
Plainly not every emergency planning element need be evaluated, and nothing in our opinion should be construed as deciding that discrete emergency planning elements are or are not material.
8 50 Fed. Reg. 15,485, 15,487 (1985).
27 While the Licensing Board, in assessing LILCO's compliance with applicable NRC regulations, may find at the end of the case that the features selected by FEMA for festing are insufficient to allow LILCO to demonstrate compliance with the Commission's regulations (whether it will do so, of course, is pure speculation at this stage), it cannot direct any changes in FEMA's program. Only FEMA and the Commission, acting together, can bring about such changes.
Thus, nothing that the Licensing Board has done -- or, indeed, could do -- can unilaterally injure FEMA's administration of its emergency exercise program.9 9
I appreciate the applicant's dilemma in being required to follow an exercise design established by FEMA (with NRC staff approval) that may turn out to be insufficient to permit compliance with NRC regulations. But surely the solution to that dilemma cannot lie in simply foreclosing intervenors at the threshold from attempting to demonstrate that the LILCO plan does not meet applicable Commission regulations.