ML20212E898
| ML20212E898 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/31/1986 |
| From: | Cumming W Federal Emergency Management Agency |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#187-2075 86-01-OL, 86-1-OL, OL-5, NUDOCS 8701050518 | |
| Download: ML20212E898 (62) | |
Text
-- y 2025' 00LKETED U W i' UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION
-. g #N -2 P5 34 Before the Atomic Safety and Licensing Appeal Board ,
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. )
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, Unit 1) )
)
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 i , William R. Cumming Counsel for FEMA
- e, i December 31, 1986 l
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D,jlO50518861231 C ADOCK 05000322 PDR 0 503
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UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION Before the Atomic Safety and Licensing Appeal Board
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, Unit 1) )
)
- FEMA PETITION FOR LEAVE TO APPEAL, APPEAL MEMORANDUM, REQUEST FOR EXPEDITED CCNSIDERATION OF APPEAL OF DECEMBER 11, 1986 ORDER (ASLB No. 86-01-OL),
AND REQUEST FOR STAY OF T.iAT ORDER WITH RESPECT TO DISCOVERY CONCERNING CONTENTIONS EX 15 AND 16 OR DIRECTED CERTIFICA.TICN TO THE COMMISSION William R. Cunming
' ~ '~---
- Counsei for FEMA December 31, 1986
INDEX f
TITLE PAGE INDEX TO CASES 11 JURISDICTIONAL STATEMENT................................................. ,
1 TIMELINESS OF APPEAL..................................................... 1 ISSUE ON APPEAL.......................................................... 2 BACKGROUN0............................................................... 3 LEGAL ARGUMENT........................................................... 6 CONCLUSION............................................................... 11 APPENDIX A: TEXT OF CONTENTIONS EX 15 ANO 16 APPENDIX B: MEMORANDUM AND ORDER OF DECEMBER 11, 1986 j 1 i,
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INDEX TO CASES e
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. 1. Union of Concernei Scientists v. U.S. Nuclear Regulatory Commission.
735 F.2d 1437 (D.C. Cir. 1984); cert. denied 105 S.Ct. 815 (1985)..............
...'........y...... ....................................................Page 4,
- 2. Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1),
CLI 11, __NRC__(I956) . . . . . . . . . . . . . . . . . . . . . . .Page 2, 3, 4, 5, 6, 7, 8, 9, 10.
' 3. Long Island Lighting Company (Shoreham Nuclear Power Station Unit 1),
_ . CLI-86-13, ,_NAC (1986)...............................................Page 9.
n
, 4. Long Island 5.ighting Company (Shoreham Nuclear Power Station, Unit 1),
~
A LAB-77 3, 19 MRC 133 3 C i98 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . P a g e 1.
e
- 5. Long Island Lichtjng'Comoany (Shoreham Nuclear Power Station Unit 1),
December 11, 1986 Memoranoum and Order of ASLB in Docket No. 50-322-OL-5.......
.............i.... .... ..........................................Page 4, 6, 7.
- 6. Long Island Lighting Company (Shoreham Nuclear Power Station Unit 1),
Octcber 3,-1986 Prehearing Conference Order of ALSB in Docket No. 50-322-OL-5..
.....................................................................Page 3, 6.
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d UNITED. STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board
. ) '
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5 ' s
) (EP Exercise) ,
(Shoraham Nuclear Power Station, Urit 1) )
) -
4 JURISDICTIONAL STATEMENT The Appeaf Board's jurisdiction over any appeal filed by FEMA in this proceeding is the same as the Appeal Board's jurisdiction to decide Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), ALAB-773,19 NRC 1333 (1984). FEMA also understands the Appeal Board has jurisdiction pursuant to section 2.785(d) of 10 CFR to direct certification to the Commission for its determination of major or novel questions of policy, law or procedure. Should the Appeal Board decline jurisdiction over this matter FEMA believes Appeal Board still can and should direct certification to the Commission. Should the Appeal Board decline jurisdiction in this matter then FEMA understands its sole recourse is to initiate contact or correspond with the full Commission.1/ .
TIMELINESS OF APPEAL Assuming that Section 2.788 of 10 CFR is the controlling regulation in
. this instance since the Licensing Board (her5.inafter " Board")has treated FEMA, 1/ FEMA's status before NRC Licensing and Appeal Boards is unclear. See December 1,1986 NRC Staff Motion For Clarification of the Licensing Board's order of November 19, 1986 Compelling FEMA to Answer Certain Interrogatories before the Atomic Safety and Licensing Board on this subject.
4 \
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? t i as if.it were a party, this appeal is not timely. (See footnote 1). That regulation, which by its terms applies to parties, requires requests for stays to be filed within 10 days of service of the decision for which stay is sought. FEMA hereby petitions the Appeal Board to accept jurisdiction and consider this appeal for the following reasons. First, although the Licensing W
Board attempted to serve FEMA by facsimile service, that transmission was not received due to an outage of phone service due to C&P Telephone repairs on December lith and 12th. FEMA did not receive the opinion by mall service until the afternoon of December 17th. Additionally, FEMA Counsel had minor s'urgery on the 19th and was incapacitated due to the surgery and medication untti December 24th. Also, despite a request by FEMA to the Office of General Counsel of NRC, FEMA was not informed by NRC's Office of General Counsel until December 29, 1986, that NRC would not file an appeal on FEMA's behalf.
Ac'cordingly, FEMA believes it has shown good cause for a waiver.of the 10 day
~
limitation! Such a waiver would not be prejudicial to any party because of the short filing delay. If FEMA is not a party, then the applicability of NRC regulations concerning parties are not applicable to FEMA and FEMA is not
- bound by NRC time requirements, and this appeal is otherwise timely given the crrent status of the proceeding. FEMA has, however, diligently attempted to comply with all applicable requirements applicable to parties.
[
l ISSUE ON APPEAL The issue for which appeal is taken may be stated rather briefly. Does the Atomic Safety and Licensing Board's (hereinafter " Board") admission of Contenticqs Ex 15 and 16 comport with the Commission guidance to the Board as stated in Long Island Lighting Comoany (Shoreham Nuclear power Station, Unit 1), CLI-86-ll, 23 NRC 577 (1986)?
. ITED BACKGROUNDAMERICA
. IAR REGULATORY COMMISSION
- In its October 3,1986, Prehearing_Conferencei_Ordery(Ruling 3on Contentions and Establishing Discovery _ Schedule) as modified by its December
)
11, 1986 Memorandum and Order (Ruling on FEMA's Motion for Reconsideration of
)
and Intervenors' Objections to October 3, 1986 Prehearing. Conference-Order)
) (EP Exercise) the Board, when it admitted and. discussed Contentions EX 15 and 16 made the
)
sufficiency of the scope of the February 13, 1986 offsite emergency planning
^
exercise for the Shoreham plantIa0substantiveA_issueTin the proceeding directed by the Commission in CLI-86-ilotsuora.er(See Append 1xiAeforytheMtext ofithe
- contentions as proposed by intervenors.)rd's jurisdiction to decide Long As stated by LILCO in a Decemberil8, 1986, Supplementnto Its November,24, 1986 Motion to Compel DiscoveryeoftNewsYork State, Board has jurisdiction The Board has admitted forCconsiderationctheiquestion to the whether the February 13 exercise - whatever those who developed it.intendedottotomconstitutev-Isatisfiessthe policy, law or
- Commission's requirements, which LILCO understands to mean the ' full participation'clanguageloftparagraphr this matter FEMA i IV.F.1. ( and its footnote 4) of Appendix E to 10 CFR Part 50. While acknowledgingoLILCO'seargumentfthatitheto the i
intended scope of litigation of emergency planning exercises focuses on theirdresults, thelBoardistatedthis matter then that in its view the distinction between results and scope 'does not hold upswhen viewedtintlighttoftthe correspond with regulatory scheme governing emergency planning.'
' Memorandum and Order Ruling on FEMA's Motion for Reconsideration . . . (December 11, 1986) at 11.
,. That ruling is presently operativelguidance_ fore,this proceeding.
Before the OL-5 proceeding, FEMA 0hadRneverhcontestedlorgopposedtthe in admission of contentions beforenLicensinghBoardsfbasedBonrFEMA's beliefdthatA NRC was in fact the arbiter of its own regulatory process. Just as the Board icensing and Appeal Boards is unclear. See properly found in its Decemberilltho0rderrthataFEMA cannot speakstogtheaissue pell*ng FEMA to Answer Certain Interrogatories of what is a " full participation"nexerciserundertNRC regulations, FEMA also cannot address the admissibility of contentions, or the standards for such
s a t..ston, that being the province of NRC. See December lith Order at page
- 14. FEMA, for example, is not in a position to state whether LILCO and the Board are correct in stating that paragraph IV.F.1. (and footnote 4) of 10 CFR Part 50 Appendix E is controlling in this proceeding. FEMA has taken the unusual step of filing a Motion For Reconsideration and this Appeal principally for programmatic reasons, although. FEMA believes that fundamental legal error has been committed by the Board which requires the Atomic Safety and Licensing Appeal Board to intervene.
Contentions EX 15 and 16 are directed to the guestion of whether the exercise was sufficient to qualify as a full participation exercise under NRC regulations. Thishasbeenanalogizedtothesituationwhereatissuesample is taken in a slice for medical reasons and the issue then becomes whether that slice was adequate to give reasonable assurance of a diagnosis. FEMA asserts that not unlike a medical evaluation admission of these contentions is based on an erroneous premise of how a diagnosis is, indeed must be made.
FEMA's evaluation process is based on FEMA's expertise in evaluating exercises, and, although FEMA did not make an ultimate finding, FEMA did determine deficiencies and actions subject to correction. These findings were entitled to be rebutted under the FEMA-NRC Memorandum of Understanding (hereinafter MOU), dated April 1985, but nevertheless were presumptively l valid. Examination of what FEMA did do and not what FEMA didn't do in evaluation of the exercise is the appropriate standard for the admission of
- contentions under Union of Concerned Scientists v. U.S. Nuclear Regulatorv Commission, 735 F.2d 1437 (D.C. Cir. 1984), cert. denied 105 S. Ct. 815 (1985) and Long Island Lighting Comoany (Shoreham Nuclear Power Station, Unit 1),
CLI-86-11, 23 NRC 577 (1986). FEMA does not argue that its evaluation process l
cannot be reviewed or challenged by the full Commission or in the Federal
Court.s. Rather,. FEMA argues that the Licensing Board may not review what FEMA did not do, and that allowing such a review requires FEMA to needlessly litigate what is in fact a generic approach to evaluation of exercises, namely testing of a series of observable elements ~over a six year cycle. Generic issues are properly considered only by the full Commission. Should the Commission desire some other approach, then it is up to the Commission to seek a modification of the MOU with FEMA, and unilateral modification authority is not vested in the Licensing Board.
Stated briefly, the Board by admitting Contentions EX 15 and 16, has in effect raised a broader issue with respect to whether FEMA's current system of testing NUREG-0654/ FEMA-REP-1 (REV. 1) over a six-year exercise cycle, rather than testing all observable elements in every exercise, is deficient from an
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NRC regulatory point of view. If the Board's determination is correct, then, FEMA must determine how to reallocate its own resources and those of other exercise participants (assuming that such reallocation is possible) in such a way as to meet this new standard. This is not the same 1.ssue as whether the full assets of the responding organizations can be generated in an actual emergency, but only goes to the programmatic resource issue that the present regulatory exercise schedule demands because simultaneous activity is often occurring at several sites. This programmatic concern however is premised on FEMA's belief that CLI-86-11, supra, did not require the admission of Contentions EX 15 and 16 and in fact precludes the Board frcm admitting those
. contentions. Therefore, because of the issue's significance both programmatically and legally , FEMA respectfully requests that the Board consider this appeal based on the legal arguments set forth below.
t
- LEGAL ARGUMENT The Board's October 3, 1986 and December 11, 1986 Orders (hereinafter
" Orders") fall to conform to the legal guidance given to the Board by the Commission in CLI-86-ll, suora. The Commission ordered "immediate initiation
- of the exercise hearing to consider evidence which Intervenors might wish to offer to show that there is a fundamental flaw in the LILCO emergency plan."
(Emphasis supplied.) Page 1 of the Order, CLI-86-11. The Commission further states:
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 itself 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. Page 5 of CLI-86-il. (Emphasis supplied.)
Finally, the Commission highlighted its approach in stating, However, we agree with Intervenor's second point, that the wording of LILCO's proposal to exclude contentions which do not demonstrate fundamental flaws in the emergency plan, has the potential to require premature evidentiary decisions. We remedy that possible defect by directing the Board to admit only those Intervenor contentions which satisfy the specificity and other requirements of 10 CFR 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, would demonstrate a fundamental flaw in the plan. (emphasis in original).
The NRC staff has consistently argued in its filings in this procee' ding to date that, even if proved true, Contentions Ex 15 and 16 do not indicate a fundamental flaw in the plan. FEMA agrees with this argument, but believes that other arguments are more persuasive of FEMA's view that these contentions should not be admitted under CLI-86-11, supra.
FEMA's position differs from that of NRC staff in several fundamental respects, although FEMA would agree with NRC staff to the extent tht FEMA has knowledge of the use of the term " fundamental flaw." However, FEMA does not use the term " fundamental flaw" and thus defers to NRC and its administrative process as to whether, ur. der CLI-86-ll, the results of the exercise did or could demonstrate a " fundamental flaw" in the plan. This 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 hearings." Order at page 9.
The Board appears to understand that "It is true that the Commission directed that this proceeding be limited to the exploration of alleged fundamental flaws in the plan demonstrated by the exercise." Order at page
- 11. Yet, in spite of this understanding, the Board then goes on to analyze that guidance as relying on the definition of " full participation" exercise to give guidance as to the " scope of the such an exercise." Order at page 12.
The Board then concludes that, From the foregoing [it] is clear that:
- 1. The exercise was conducted pursuant to a provision of LILCO's emergency plan;
- 2. LILCO asserts that it was a " full participation exercise" which is required by the Commission's regulations prior to operation at more than 5% of rated power; and
- 3. If it is found not to comply with the Commission's regulations concerning the scope of a full participation exercise, it may constitute ". . . [a deficiency] which preclude [s] a finding of reasonable assurance that protective measures can and will be taken, i.e., [a fundamental flaw] in the plan."
CLI-86-ll, 23 NRC 577, 581 (1986).
See Order at pages 12 and 13.
In footnote 8 on page 15 of the Order, the Board sta'tes:
FEMA requests (motion, p.1) that, in the event we -
decide not to reconsider our rulings, we certify the question of the standards for admissibility of contentions bearing on FEMA's evaluation. This request is denied. While we have adhered to our rulings, we believe we have also largely allayed FEMA's fears concerning this litigation. We do not believe certification is appropriate.
. In the context of fully litigating Contentions Ex 15 and 16, the Board states (inconsistently with footnote 8 discussed above) that, Moreover, any deficiencies which exist in the scope of the exercise should be identified early so that any feasible corrective action may be taken. Clearly, it is in the Commission's, FEMA's, the parties', and the public's interest to take up these issues and resolve them now. Order page 13.
FEMA agrees with the latter conclusion of the Board, and believes the correctness of the rulings admitting contentions on the scope of the exercise require the earliest possible resolution by the Appeals Board, and, if necessary, directed certification to the Commission.
In a Memorandum and Order issued on December 1?., 1986 (Ruling on Suffolk County's Motion to Compel LILCO to Respond to the County's First Set of Interrogatories and Requests for Production and LILCO's Motion for a Protective Order), the Board gives further insight into its thinking on why Contentions Ex 15 and 16 should be admitted. The Board states:
The controversy surrounding these interrogatories is important because it concerns the scope of the hearing.
. . . LILCO objected to these interrogatories on the t
ground that they did not seek relevant information or information likely to lead to the discovery of relevant information. . . . It [LILC0] then proceeds to
- demonstrate that the information sought is indeed irrelevant to any of the cited contentions, noting the
- County's representations in its November 10 response to FEMA's motion for reconsideration of the October 3 Prehearing Conference Order that its contentions do not challenge the exercise scenario, but take that as a given and challenge only the results and evaluations of the exercise. . . . Contentions Ex 15 and Ex 16 assert that the exercise scope was too limited to comply with l
__ __ _ . _ _ _ _ _ _ _ _ = -_ __ _ __._ _- .__ _
NRC requirements relating to a full participation exercise, and all intervenors have indeed asserted that they do not challenge the design of the exercise.
Nonetheless, Suffolk County is entitled to explore the factual bases for LILCO's position that this exercise meets the requirements for a full participation
. exercise.
FEMA argues that indeed LILCO is correct that the standard of relevancy is not met on either the admission of contentions or the allowing of discovery. The fundamental principle with respect to emergency planning i
recognized by the Commission in Long Island Lighting (Shoreham Nuclear Power Station (Uni t 1), CLI-86-13, _,NRC_(1986) is that dose rate savings are the objective of off-site planning. The only issue relevant to the Licensing Board is given the scenario the day of the exercise, did the steps take by the emergency response organizations have an impact on dose rates. Where that response.could~have achieved savings by improvements, FEMA evaluated those consequences. By addressing the question of whether the exercise could be better designed to accomplish this purpose, FEMA is placed in the position of competing with the Licensing Board with respect to designing and evaluation of exercises, when only the results the day of the exercise are relevant and relied upon by NRC in determining reasonable assurance. If FEMA had found no deficiencies perhaps the Board's now clear concern as to the adequacy of the evaluation process might be more relevant. However, the guidance given to the Licensing Board in CLI-86-11 does not assign this role concerning the scope of l
the exercise to the Board. The reason for this is relatively simple. FEMA has never tested all observable elements in any exercise of an emergency plan that it has evaluated. The choice and selection of which elements to test and evaluate is committed to the discretion of program officials and employees.
FEMA does represent to NRC that over an extended period (six years) all observable elements must be tested. The fact that only 70 of over 200
_g-
elements 'in NUREG 0654/ FEMA-Rep.1 (Rev. 1) can be observed accounts for the emphasis FEMA places on having plans with as few inadequacies as possible.
More importantly, FEMA asserts that the results, not the scope, of the
'- exercise are in fact the material factors typically relied upon by the Commission in determining that:
no operating license for a nuclear power reactor will be issued unless a finding is made by NRC that the state of onsite and off-site emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. 10 CFR 50.47(a)(2) (1983).
(Emphasis supplied.) ,
Section 109(a) of the 1980 NRC Authorization Act, which deals with emergency plans, requires that "there exists a State or local emergency preparedness plan which . . . provides for responding to accidents at the facility concerned" but nevertheless permits issuance of an operating license ,
in the absence of an approved State or local plan, if "there exists . . . a utility plan which provides reasonable assurance the public health and safety is not endangered by operation of the facility concerned." (Emphasis supplied.)
Because the scope contentions, if litigable under NRC guidance as provided In CLI-86-11, can also be litigated in other exercises, then FEMA's officials and employees must have immediate guidance as to whether its exercise evaluation program continues to meet NRC standards. Since only NRC and its administrative process can clarify whether the scope of an exercise can ever
, . reveal a " fundamental flaw" precluding " reasonable assurance," then FEMA requires immediate guidance not only for this proceeding but for its exercise program in general. FEMA has never asserted that it gives statistical or absolute assurance in its findings, but only reasonable assurance. While the NRC regulations and FEMA process may not fully coincide, if FEMA's
understanding of the " reasonable assurance" requirement of the original legislative requirement is incorrect, then FEMA requires guidance as to how to restructure its exercise evaluation program to meet NRC requirements.
CONCLUSION For the reasons stated above, FEMA respectfully requests that the Appeal Board accept jurisdiction over this interlocutory matter, stay discovery with respect to Contentions EX 15 and 16 pending a ruling from this Appeal Board, expedite such ruling or consideration, and determine that the stay is justified because FEMA has made a strong showing that the Licensing Board's December 11, 1986 is erroneous. If jurisdiction is not accepted, FEMA's ongoing exercise program will be irreparably harmed. Furthermore, the granting of a stay will not adversely affect other parties and the public interest requires.immediate clarification of this question by the Appeal Board. Finally, FEMA requests that the Appeal Board direct the presiding officer to certify the issue of the admission of Contentions Ex 15 and 16 to the full Commission or under its own authority pursuant to section 2.785(d) of 10 CFR. 4 Respectfully submitted, suu -
William R. Cumming Counsel for FEMA Dated at Washington, D.C.
this 31st day of December, 1986
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APPENDIX A e
s O
_ _ _ _ _ _ _ , - .__ __ . .---.- . - - - - - - - - - - . - ---- - - - - - - - - ~ - - '
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t
' Djf,.B. .. ..I Pl..l :(//.4 fitw in the Plan, because that Plan does not assign " primary responsibilities for emergency response" to the governmen:s assigned those responsibill-les under ene " realism" argument Accordingly, .
regulations, the Plan fails to comply with NRC emergency plannin including 10 CTR $$ 50.47(b)(1),
(3), (4), (5), (6),
(8), (10), (11), (12), (13), (14), (15) and (16).
( III. CONTENTIONS EI 15-19: LIMITED SCOPE OF THE EXERCIEE PRECLUDES REASONABLE ASSURANCE F' CONTENTION ET 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 s re- a quired by 10 CTR S 50.47(a)(2),
in that it did not include dem-onstrations or evaluations of major portions of the LILCO Plan .
The data sat forth in subparts A-M of this contention indi v ual- id ly and collectively establish that the exercise demonstrated 'a fundamental flaw in the LILCO Plan.
The exercise results do nor demonstrate that the LILCO Plan could or would beented, implem and the exercise results preclude a finding that there is reason-able assurance that adequate protective measures can eand wi taken in the event of a radiological emergency at Sh oreham, as required by 10 CTR S'50.47(a)(1).
Thus, the exercise demon-strated a fundamental flaw in the LILCO Plan.
Specifically, several critical aspects of offsite emer gency preparedness, and major substantive portions of the LILCO' Plan ,
were excluded from the exercise.
(which LILCO prepared), Neither the exercise scenario
! nor responses by players during the l
APPENDIX A Page 1 of 16 l
_ , _ _ - - - ' ~ ' - " _, _ - - - - -
exercise, nor any TEMA evaluation or observation, addressed the following elements of emergency preparedness required by the referenced sec:icns of the NRC's regulations and NURIG 0654:
A. Procedures for actual notification of the public and actual issuance og emergency informatica and protective action recommendations to the public, as set forth in OPIPs 3.3.4, 3.8.1 and 3.8.2, and at pages 2.2-2 thru 2.2-2a, 3.3-4 thru 3.3-6, 3.4-6, 3.8-4, 3.8-6 and Appendix A, pages IV-2 and IV-3 of the LILCO Plan, were excluded from the exercise, in that sirens, the LILCO EBS system, and WALK Radio were not tasted, used, demonstrated, or involved in the exercise. Thus, neither the notification capabilities of LILCO or WALK Radio personnel, nor the notification capabilities of LILCO's EBS system, were evaluated during the exercise. Such capabilities are required by 10 CTR S 50.47(b)(5), 10 CTR Part 50, App. E S IV.Dr NURIG 0654 SS II.E and F, and Appendix 3, and were required to be demon-strated in the exercise. Objectives EOC 14 and 15. Their exclusion from the exercise precludes a finding of reasonable assurance that adequate protective measures can and will be taken 1
in the event of a Shoreham emergency, as required by 10 CTR S 50.47(a)(1). Accordingly, the LILCO Plan is fundamentally flawed.
LILCO's suggestion that the conduct of a " prompt notification test" would correct this deficiency (agg letter dated June 20, l'986, from John Leonard to Earold Oenton (SNRC-1269), Enclosure 1 at 4) is incorrect. Such a test, assuming one
" were conducted in the future, would deal with siren operability; APPENDIX A Page 2 of 16
p s .
it would not test or demonstrate the ability of LILCO's offsite response organization to integrate that single' portion of an
(
< emergency response with the remaining actions necessary in an emergency, nur would it test or demonstrate that the LILCO Plan could be implemented.
- 3.
Procedures for notification of, and issuance of protective action recommendations to, the members of the public in the water portion of the plume exposure EPZ, as set forth in CPIP 3.3.4, and at pages 2.2-2a and 3.3-5 and Appendix A at IV-4 4
and IV-6 of the LILCO Plan, were excluded from the exercise, in that the U.S. Coast Guard did not participate in the exercise (other than perhaps the receipt of one or more telephone calls)
{
and FEMA never evaluated Coast Guard performance (assuming arguendo there was any).
Such capabilities are required by 10 CFR 5 50.47(b)(5), 10 CFR Part 50, App. E, S'I .D, and NUREG 0654
' 55 II.E and F, Appendix 3, and the exercise was supposed to (but did not) test the alleged Coast Guard commitment under the LILCO Plan to notify water-borne traffic in the EPZ. Egg, 3a1 , FEMA Report at 9; objective EOC 16.
j .
The water portion of the EPZ constitutes nearly 50 percent of the physical area of the plume EPZ.
The exclusion of such procedures from the exercisa pre-cludes a finding of reasonable assurance that adequate protective I ~
measures can and will be taken in the event of a shoreham emer-gency, as required by 10 CFR 5 50.47(a)(1). Accordingly, the
. LILCO Pla'n is fundamentally flawed.
i i
appgnorx A
.: Page 3 of 16 4
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Ye n C.
Procedures for public education and the disse =i-nation of information to the public on a periodic basis, as set forth in OPIP 3.8.1, and at pages 3.8-1 thru 3.8-4 and Appendix A at IV-3 thru -4, IV-70 of the LILCO Plan, and a demonstration of i the adequacy of public education materials, were excluded from 1 the exercise.
- Such programa and materials are required by 10 CTR S 50.47(b)(7), 10 CTR Part 50, Appendix E, 5 IV.D, and NUREG 0654
$ II.G.
Their exclusion.from the exercise precludes a finding of reasonable assurance t, hat adequate protective measures can and will be taken in the event of a Shoreham accident, as required by 10 CTR S 50.47(a)(1). Accordingly, the LILCO Plan is fundamentally flawed.
D.
Procedures relating to evacuation of EPZ hospital patients and patients in the Suffolk Infirmary, and a demon-stra' tion of the capability of implementing such an evacuation, -
were excluded frem the exercise. There are approximately 850 patients in the Central Suffolk, St. Charles, and John T. Mather i
Hospitals and the Suffolk Infirmary (OPIP 3.6.5, Att. 2), of which approximately 155 are designated maternity, newborn, or pediatric.
Procedures to evacuate these persons and the capability and resources to implement them are required by 10 CTR
$$ 50.47(b)s) and (b)(10), and NUREG 0654 S II.J.9 and 10. Their exclusion from the exercise precludes a finding of reasonable as-surance that adequate protective measures can and will be taken ./ ,,,,,-
, in the event of a Shoreham accident, as required by 10 CTR 5 50.47(a)(1). Accordingly, the LILCO Plan is fundamentally flawed.
APPENDIX A Page 4 of 16
E. Proccduros 01ating to tho shaltaring of school children (11.1 OPIP 3.6.5; OPIP 3.6.1; App. A at I!-19 thru -21) were excluded fro = the exercise. Such procedures, and the
~ resources and capabilities necessary to implement them, are required by 10 CFR SS 50.47(b)(8) and (b)(10), and NURIG 0654 55 II.J.9 and 10.
Officials of most of the school districts relied upon in the LILCO Plan for the implementation of the protective action of sheltering have stated that they do not have the resources'and are not capable of implementing such an action during a Shoreham emergency.
The exclusion of LILCO's proposed school sheltering procedures from the exercise precludes a finding of reasorable assurance that adequate protective measures can and will be taken in the event of a Shoreham emergency as required by 10 CTR S 50.47(a)(1). Accordingly, the LILCO Plan is l fundamentally f1 Awed.
F.
FEMA did not observe any demonstration of the organizational ability necessary to effect an early dismissal of schools, even though such a demonstration was one of the exercise objectives.
Egg, objective EOC 18; FIELD 15; FEMA Report at 38.
Under the LILCO Plan, early dismissal is one of the primary pro-tactive actions for school chil1:en. LILCO Plan at 3.6-7; App. A at II-19 thru -21; OPIP 3.6.5.
Thus, procedures relating to the early dismissal of schools and the ability to implement t em m required by 10 CFR $ 50.47(b)(10) and NUREG 0654 $ II.J.'
Officials of most of the school districts relied upon in the LILCO Plan for the implementation of early dismissals have stated that they do not have the resources and are not capable of safely I
~ ~
APPENDIX A Page 5 of 16
C oQ or effectively i=plementing an early dismissal during a shorena=
,N #
accident. TEMA's fail'ure cc observe any demonstration of the ability to implement LILCO's proposed protective action of early dismissal during the exercise precludes a finding of reasonable assurance that adequate protective measures can and will be implemented in the event of a shoreham accident, as required by 10 CTR 5 50.47(a)(1). Accordingly, the LILCO Plan is funda-mentally flawed.
G. Procedures relating to the evacuation of school children, as set forth in OPIP 3.6.5 and in Appendix A at II-19 thru -21 of the LILCO Plan, which refer to non-existent schoci i plans and rely upon school officials to locate and mobilize no-cessary personnel and equipment to implement an evacuation, were excluded from the exercise. Such procedures and the capability 6 of implemencing them are required by 10 CTR 55 50.47(b)(s),and (b)(10), and'NUREG 0654 55 II.J.9 and 10. Officials of most of the schoci districts relied upon in the LILCO Plan for the implementation of school evacuations have stated that they do not l
- have the resources and are not capable of safely or effectively implementing an evacuation of school children during a shoreham accident. And, the one free play message in the exercise purportedly involving simulated evacuation assistance for the Ridge Elementary School did not even pu p pow emonstrate the resources or capabilities of officials of that school or of the Longwood School District to implement an evacuation, and thus failed to demonstrate the resources or capabilities necessary to implement the proposed procedure for evacuation of school
~ ~
APPENDIX A Page 6 of 16 e t
I t
n children set'forth in the LILCO Plan. The exclusion of such procedures f' rem the exercise precludes a finding of reasonable assur'ance that adequate protective measures can and will be taken i
in the event of a Shoreham accident, as required by 10 CFR S 50.47(a)(A), and precludes any finding that objectives EOC 20 and FIELD 16 were met. Accordingly, the LILCO Plan is funda-mentally flawed.
H E.
Demonstration of the capability of implementing protective action recommendations for the public on the waters of i the plume exposure EP2, or for transients on beaches or in parks or similar areas in the EP2, as set forth in OPIP 3.3.4, and at pages 2.2-2a, 3.3-4 thru 3.3-6, 3.8-1 thru 3.8-3, and Appendix A at IV-4 and IV-6 of the LILCO Plan, was excluded from the exer-cise.
Such capabilities are required by 10 CFR S 10.47(b)(10),
and NURIG 0654 SS II.J, and objectives FIELD 9 and EOC 16 re-quired a demonstration of the ability to evacuate all or part of the 10-mile EPZ including the water portion. There in fact was no demonstration of any ability to effect an evacuation of the water portion of the EP2.
This exclusion from the exercise pre-l l cludes a finding of reasonable assurance that adequate protective measures can and will be taken in the event of a Shoreham acci-dent as required by 10 CFR S 50.47(a)(1). Accordingly, the LILCO Plan is fundamentally flawed. f I.
Procedures for determining, issuing, and imple-menting protective action recommendations for the ingestion pathway EPZ (aside from the single recommendation that dairy animals be placed on stored feed),
as set forth in OPIP 3.6.6 and APPENDIX A Page 7 of 16
1 t
at pages 3.6-1 thru 3.5-4 and 3.6-7a thru 3.6-8a of th'e LILCO P
Plan, were excluded frem the exercise in that the. State of i OO Connecticut did not participate in ene exercise and L:LCQ did net implement such procedures even for the portion of the. ingestion pathway EPZ located in the State of New York. Such capabilities are required by 10 CFR 5 50.47(b)(10), 10 CFR Part 50, Appendix E, 5 IV.r, and NUREG 0654 5 II.J, and by objectives roc 9, 12.
Their exclusion from the exercise precludes a finding of reasonable assurance that adequate protective measures can and will be taken in the event of a Shoreham accident, as required by 10 CFR 5 50.47(a)(1). Accordingly, the LILCO Plan is fundamentally flawed.
J. Procedures and arrangements relatingD to the pro-vision of medical services for offsite contaminated injured individuals were exc'luded from the exercise. Such arrangements are required by 10 CTR 5 50.47(b)(s), (b)(12); NURIG 0654 5 II.L and objective TIELD 23. The LILCO Plan contains nothing but a list of facilities described by LILCO as potentially available to a
provide such services (OPIP 4.2.2, Act. 1), but no procedures i
setting forth how contaminated injured individuals could or would be transported to such facilities, whether such facilities are in fact available and properly equipped to provide necessary ser-l vices, or whether such facilities have trained personnel and l
l other necessary resources to provide the required services in a i timely manner. During the medical dri11' referenced in the FEMA.
Report, only the treatment of an individual contaminated and in-jured enmite was demonstrated, and the purported treatment was l
4
- 23 -
APPENDIX A Page 8 of 16
, -,---,------------------wn,-en-. , ----------,--wr,,., , - - - - - , - - - - , -- - - - - - - - , .
ll 1[
I provided at Central Suffolk Respital, located in the EPZ. The exclusion from the exercise of the demonstration of procedures for the treatment of individuals contaminated and injured offsite
' precludes a finding of reasonable assurance'that ad'quate e pro-tective measures can and will be implemented in the event of a Shoreham accident, as required by 10 CFR 5 50.47(a)(1). Accord-ingly, the LILCO Plan is fundamentally flawed.
K.
Procedures relating to the radiological monitoring and decontamination of evacuees from special facilities who, ac-cording to the LILCO Plan, are to be evacuated to special recep-tion centers, were excluded from the exercise. Such procedures,
! and the resources and capabilities necessary to implement them, are required by 10 CFR 55 50.47(b)(8), (b)(10); NUREG 0654 5 II.J.9 and 10 and objective FIELD 21.
Their exclusion from the
' exercise precludes a finding of reasonable assurance that adequate protective measures can and will be taken in the event of a Shoreham accident, as required by 10 CFR 5 50.47(a)(1).
i Accordingly, the LILCO Plan is fundamentally flawed.
L.
A demonstration of the availability, accessibility, and adequacy of facilities designated to be used as congregate care centers for evacuees under the LILCO Plan (333, gaga, OPIP i
4.2.3, pages 2.2-2 thru 2.2-2a, 2.6-7 thru 3.6-7a, 3.7-2, 3 9-4 . ,
and 4.8-1 and Appendiz 3 of the LILCO Plan) was excluded from the exercise, in that the two facilities involved in the exercise are not among those identified in the Plan. Egg FEMA Report at 82=
j 83.
1 Such facilities are also not referenced in any letter of agreement from the Red Cross.
Such facilities and agreements APPENDIX A Page 9 of 16 V
, e e-me,r------wv w- e _.--u--w,--,w-rc..=-,.,-ww- _
, e - wwe_ .- . ww w w v m
O guaranteeing and demonstrating their availability, accessibility and adequacy are required by 10 CFR SS 50.47(b)(8) and (b)(10);
I CO NURIG 0654 $$ II.A.3, C.4, J.10.a. and g., and J.12; and objectives FIELD 18 and 22. Their exclusion from the exercise precludes a finding of reasonable assurance that adequate protective measures can and will be taken in the event of a Shoreham accident, as required by 10 CFR $ 50.47(a)(1). .
Accordingly, the LILCO Plan is fundamentally flawed.
, M. Procedures relating to recovery and re-entry and
. activities to implement recovery and re-entry, as set forth in 7 OPIP 3.10.1 and at pages 3.10-1 thru 3.10-2 of the LILCO Plan, '
were excluded frem the exercise. Such capabilities are required by 10 CFR S 50.47(b)(13), 10 CFR Part 50, Appendix E S IV.H, and NUREG 0654 5 II.M. Their exclusion from the exercise precludes a finding of reasonable. assurance that adequate protective measures can and will be taken in the event of a Shoreham accident, as required by 10 CFR $ 50.47(a)(1) . _
Accordingly, the LILCO Plan is fundamentally flawed.
- l con?rNTION EY 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 l
implement its Plan, as required by 10 CFR 5 50.47(a)(2), in that it did not include demonstrations or evaluations of emergency i
response capabilities of many persons and entities relied upon to implement the LILCO Plan. 'In addition, the exc'lusion of these j entities from the exercise precludes a finding that the exercise I
l APPENDIX A
. Page 10 of 16 e
e-,-- - -- , , , , - - - - - , . ~ , -,,,.__,,,,,,..en n,.,,_ . , , _ . . , . , . _ _ , -
t , . .
U evaluated =ajor portions of emergency response capabilities, as required by 10 CTR S 50.47(b)(14).
r, The failure of each of t.he .
1 persons and entities identified in subparts A-N below to participate in the exercise toch individually and collectively means that the exercise did not comply with 10 CTR $ 50.47(b)(14) and did not demonstrate that the LILCO Plan can or will be implemented, as required by1'0 CFR 55 50.47(a)(1) and (a)(2).
Rather, the exercise results were so limited that they demon-i strated 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 meassres can and will be taken in the event of a Shoreham accident, as required by 10 CTR $ 50.47(a)(1).
Other than LILCO and its personnel, the majority of the or-ganizations,'. entities, and individuals relied upon in the LILCO Plan for implementation of that Plan did not participa'te in the exercise.
Thus, the exercise did not address the willingness, availability, training, equipment, capability, or adequacy of performance of the entities an'd individuals identified in subparts A-N below, each of whic$ is necessary to imp 1' ement the portions of the LILCO Plan referenced in each subpart. The fact that each of these entities and individuals did not participate in the exercise precludes a finding that the LILCO Plan is capable of implementation or a finding of reasonable assurance that adequate protective measures can and will be taken in the i
i
~ ~
APPENDIX A Page 11 of 16 I
r
- CO
-y event of a Shoreham emergency, as required by 10 CTR l 5 50.47(a)(1). Accordingly, the LILCO Plan is fundamentally l flawed. l A. The State of Connecticut did not participate in the exercise beyond perhaps receiving a phone call from a LILCO
" player" at approximately 10:30. Connecticut is relied upon for
. issuance and implementation of protective actions for the portion of the ingestion pathway EPZ located within its borders. Egg LILCO Plan at 3.6-8; OPIP 3.6.6.
B. The U.S. Coast Guard did not participate in the exercise beyond perhaps receiving phone calls. It is relied upon for initial notification of, and ccmmunication and implementation of protective action recommendations to, members of the public in the water portion of the plume exposure EP2, and for private and commercial vessel traffic control and access restriction on the water portion of the EP1. Egg LILCO Plan at 2.2-2a, 3.3-5; OPIP 3.3.4. The water portion of the EPZ constitutes approximately 50 percent of the entire EPZ. FEMA did not observe or evaluate the Coast Guard's performance of any of these activities, including, l if it occurred in fact, the dispatching of any Coast Guard l
l vessels into the EP3.
C. WALK Radio did not participate in the exercise. It l 1s relied upon for initial notification of the public of an emergency as well as for issuance to the public of protective action recommendations and other emergency information. Egg l LILCO Plan at 2.2-2 thru 2.2-2a, 3.3-4 thru 3.3-6, 3.4-6, and 1
3.8-6 OPIP 3.3.4; OPIP 3.8.1 OPIP 3.8.2.
l APPE23 DIX A Page 12 of 16
6 l ,
- O.
No other radio stations participated in the exer-cise.
Under the LILCO Plan, stacions WELI, WCTO, WGLI, WGSM, y
. '"I WLIM, WLIX, WLNG, WRCN, WRED, and WRIV are relied upon to con-
- l stitute LILCO's ESS system; therefore they are relied upon for initial notification of, and communication of pretective action recommendations and other emergency information to, the public.
111 LILCO P,lan at 2.2-2 thru 2.2-2a; App. B.
E.
According to FEMA, Marketing Evaluations, Inc. did not participate in the exercise. FEMA Report at 111.
It is relied upon for verification of siren operation and evacuation.
111 LILCO Plan at 2.2-4g, App. A at V-9, and App. B; OPIP 3.3.4.
F.
Other than one or two persons from the Shoreham-Wading River School District, school officials and personnel, including teachers, from the two parochial schools, 13 nursery schools, and 33 public schools located in the EPZ, as well as those from the seven school districts outside the EPZ but w children who reside within the EPZ, did not participate in the exercise.
Personnel from such schools are relied upon for implementation of protective action reccamendations for school children under the LILCO Plan. Egg App. A at II-19 thru -21, IV-169 thru -171; OPIP 3.6.5.
G.
Other than two drivers from the Shoreham-Wading River School District, school bus drivers did not participate in the exercise.
School bus drivers from 10 school districts, as well as from numerous private and nursery schools, are relied l
Appn1 DIX A Page 13 of 16 0 .
- - - - - - - , _ _ _ - - - - - - - - - ' - ~ ~ ~ ' ' ' '
'# ' upon for implementation of the protective actions for school children of early dismissal and evacuation. Egg LILCO Plan, App, A at II-19 thru -20; OPIP 3.6.5.
H. Officials from hospitals located in the EP: --
Central Suffolk Hospital, St. Charles Hospital, John T. Mather Hospital -- and the Suffolk Infirmary did not participate in the exercise. Such officials are relied upon for determination and implementation of protective action recommendations for hospital patients. Egg App. A at IV-172; OPIP 3.6.5 5 2.0 (Note); OPIP 3.6.1 $ 5.3.2.
I. Officials and personnel from the nine nursing and i
adult homes located in the EPZ did not participate in the exer-cise. Such personnel are relied upon for implementation of protective action recommendations for the residents and patients in such homes. Egg App. A at II-28 thru -29, IV-173 thru -176; OPIP 3.6.5.
1 J. Officials from hospitals, nursing homes, and similar facilities outside the EPZ relied upon for relocation services and necessary health care for special facility evacuees i did not participate in the exercise. The LILCO Plan fails to include agreements for such facilities which indicate an ability to provide necessary reception services, in violation of NURIG 0654 $ II.J.10; instead, the Plan merely includes a list of such facilities and indicates LILCO's reliance upon them for reloca-tion services and necessary health care for evacuees from hospi-l tals, nursing and adult homes in the EPZ. Egg App. A at IV-166a thru -168, IV-172 thru -178; OPIP 3.6.5.
29 -
APPE2tDIX A Page 14 of 16
- -- ,, .,-------- - s
l K.
t cipate in the exercises Tho following bus companies or yards arti- did no s
(1) Saumann &
Yard (50) Sons Buses, Inc. - East Northport (2}
Baumann (74) & Sons Buses, Inc.
- Amityvill e Yarc (3)
Huntington. Coach Corp.
(100)
(4)
, Herman E. Svezey Co., Inc. (29)
(5)
(6) United Bus Corp. -- Ronkonkoma Nard (46)
Lakeland Yard (40)Suffolk Transportation Inc. -- Se (7)
Bayshore Yard (147)Suffolk Transportation . --
(8)
(9) Coram Bus Service -- Coram Yard (39 (10) Coram Bus Service -- Rocky Point Yard (27 Louis A. Tuoco Buslines, Inc.
(11) (39)
Starlite Bus Co., Inc. (60)
(12)
Seaman Bus Co, Inc. (35)
They are relied upon for implementation of evacuation in that.the LILCO Plan assumes thof the p at each listed entity would provide for LILCO's use the numb cated in parentheses above. er of buses indi-L. Egg LILCO Plan, App. B.; OPIP 3.6.4.
The following ambulance companies did n 1
cipate in the exercises ot parti-(1)
(2)
Bi-County Ambulance and Ambulette (8)
(3) Gosline Ambulance Service (5) t I
Mercy Medical Transportation Service (7) 1 APPENDIX A Page 15 of 16 6 .
. I i
, . - - ~ - - . - . - - . . --. - - . - - . , . . - . . . - , , . - - - . - - - - . . - , . - - . . . - - - - _ - - - - .
?d , (4) Nassau Ambulance Service (11)
(5) New York Patien: Aids, Inc. (18)
(6) Orlando Ambulance and Ambulette Service, Inc.
(6)
[ (7) Peconic Ambulance Service, Inc. (10)
(t)- Transpcreation With Care (9)
I' (9) Weir Metro AmbuService, Inc. (62)
They are relied v.psn for implementation of the protective action c.f evacuation in that ,the LILCO Plan assumes that each company will provide the numcst of ambulance and ambulette vehicles, manned with the necessary personnel, indicated in parentheses in the above list. Egg LILCO Plan, App. B.; OPIP 3.6.5.
M. Local governments did not participate in the exer-cise, other than perhaps the receipt of one gr two telephone calls by personnel in Nassau County. They are relied upon for, intar. LUA, 1: cal law enforcemen't, emergency fire and rescue services, snow removal, traffic control on the roads surrounding the Nassau Coliseum, and traffic control, parking supervision, and security at the Nassau Coliseum. Egg LILCO Plan at 1.4-2a thru 1.4-2h, 2.2-4g taru 2.2-4h, 4.7-1; OPIP 4.2.3.
N. The owners of facilities, purportedly available and relied upon to serve as congregate care centers, did not parti-cipate in the exercise, nor were the facilities themselves used or their adequacy demonstrated, during the exercise. Egg LILCO Plan, App. Et 331 313g FEMA Report at 82.
APPENDIX A Page 16 of 16
. t l
e e
9 0
e APPENDIX B 1
i y
9
J OL-ge -
w UNITED ' STATES OF AMERICA 7'f,[- -
NUCLEAR REGULATORY CCPMISSION ATOMIC SAFETY AND LICENSING BOARD 86 DEC 12 A10:36 Before Administrative Judges GFFr . ..
John H Frye, III, Chaiman 80Cr.: . ;. i: " ."O Dr. Oscar H. Paris Mr. Frederick J. Shon
. SERVED DEC 121985 In the Matter of Docket No. 50-322-OL-5
(.EP Exercise)
LONG ISLAND LIGHTING COMPANY (ASLSP No. 86-533-01-OL) .
(Shoreham Nuclear Power Station, Unit 1) December 11, 1986 ..
MEMORANDUM AND ORDER :S e
-i (Ruling on FEMA's Motion for Reconsideration 4 of and Intervenors' Objections to '
r2 October 3,1986 Prehearing Conference Order) '
y INTRODUCTION This Board's 1October 3, 1986, Prehearing Conference Order (unpublished) ruled on the contentions advanced by Suffolk County, the State of New York, and the Town of Southampton (Intervenors). These contentions were Edvanced following a Comission, Memorandum and l
1 This Board was reconstituted on October 7, 1986. A clarification of the October 7 notice was issued.on October 17, 1986. On November 7, the Chief Administrative Judge denied a motion for recision of the notice of reconstitution and clarification filed by Intervenors. Intervenors filed a motion for reconsideration on December.3 which was denied on December 8.
Order2 which initiated this proceeding in order to decide any matters in controversy concerning the February 13, 1986, exercise of the Long Island Lighting Company's (LILCO) emergency plan.3 ,
The Prehearing Conference Order has prompted a motion to reconsider
- from the Federal Emergency Management Agency (FEMA) and objections from Intervenors.4 FEMA's motion raises questions concerning the proper scope of the hearing, while Intervenors' objections challenge the denial of some of their contentions. Additionally, all parties have expressed confusion with respect to the Board's rulings on contentions. In this Memorandum and Order, we resolve these matters.5 However, we must first address a preliminary matter. .
2 CLI-86-11, 23 NRC 577 (1986).
3 Union of Concerned Scientists v. U.S. Nuclear Regulatorv Comission, 735 F.2d 1437 (D.C. Cir.1984) required the Comission
- to permit such litigation.
4 FEMA conducted the exercise and will furnish testimony concerning its evaluation. The motion and objections were filed on October l
27, 1986, pursuant to an extension of time granted by the Board on l October 16.
5 FEMA's motion was filed on October 27. Intervenors, LILCO, and Staff responded, and FEMA filed a supplement to its motion on l
November 10. Pursuant to a Board request, LILCO filed its so-called " Revised Standard Version" of the contentions on November
- 17. Intervenors responded to these and filed their version of the contentions on November 24. Staff also responded on November 24, but did not submit its version of the contentions.
Intervenors' objections were filed on October 27. LILCO, Staff, and FEMA all responded on November 10.
(Footnote Continued) l l
l
, . . _ . - - - . . -. . -.- _ - ~ _ , _ _ _ _ . - - . _ , , . ---.-- .-_ - ..- .,_ - .__,,_ - , - - - . .-
3-j In their response (pp. 4-8) to FFJ'.A's motion, the Intervenors challenge the competence of the reconstituted Board to rule on ". . .
the FEMA motion or other exercise-related iss.ues now pending before it."
We overruled this objection in footnote 1 of our November 13 Memorandum and Order. In a letter of November 17 Intervenors object that this ruling did not deal with the substance of their objection. Therefore, we address this matter below.
Intervenors' objections raise two points. First, they cite their pending motion to rescind the notice reconstituting the Board. That motion and a motion for reconsideration have since been denied (see footnote 1, supra); thus this argument is moot.
Second, Intervenors argue that the Frye Board cannot know what the Margulies Board intended and that the schedule confifets' which dictated the reconstitution would not prevent the latter Board from passing on the matters dealt with herein. Intervenors allege that rulings by the Frye Board on these matters will deny them due process. However, they cite no authority for this proposition.
Intervenors' argument is premised on the existence of two boards in this portion of the Shoreham proceeding. In point'of fact there nas been only one. It was appointed pursuant to the Chief Administrative Judge's authority following issuance of the Cosarission's Order (Footnote Continued)
A conference of counsel was held on December 4 during which many of the matters raised by these pleadings and a schedule were discussed.
~
4-s (CLI-86-11) that a board be appointed to review and decide matters in controversy concerning the February 13 exercise. It'was reconstituted pursuant to the Chief Administrative Judge's authority. While intervenors are correct that the two new members of the Board cannot know what was in the minds of the two former members, that fact does not render the Board legally incompetent to pass on the matters now before it. The Board was and is legally competent to decide all matters within its jurisdiction.
Moreover, we note that the question of which contentions were admitted by the Prehearing Conference Order, decided in this Memorandum and Order, is the question to which Intervenors' argument is most relevant in a practical sense. That question has been decided in Intervenors' favor, thus largely mooting the objection. We do not believe this argument has any practical relevance to our competence to decide whether errors were made in the denial of contentions.
Apparently Intervenors agree, for their objections allege numerous errors in this regard.
FEMA MOTION FOR RECONSIDERA,T ION Ambiguity in Prehearing Conference Order In its Motion for R~ econsideration, FEMA noted that the October 3 Prehearing Conference Order was not clear with regard to the contentions which had been admitted. (Motion,p.16.) In their objections to the Prehearing Conference Order, the intervenors noted that in many l
m
- 5-instances we denied separate admission to a contention but indicated that the facts alleged in the denied contention could be litigated in i 1
connection with another, admitted contention. (Objections,pp.2-3.)
In a motion of October 30 requesting leave to respond to FEMA's motion and Intervenors' objections, LILCO took issue with the Intervenors' interpretation of the Prehearing Conference Order set forth in the latter's objections (see pp. 2-3) and indicated that it would file a so-called " Revised Standard Version" of the contentions if permitted to respond.
In our November 13 Order, we noted the confusion among the parties with respect to which contentions had been admitted and called for LILC0's " Revised Standard Version", which had not accompanied its responses. On November 18, we indicated that Interver. ors,' Staff, and FEMA might file their versions of the admitted contentions in response to LILCO should they desire to do so. Only Intervenors did so.
The differences of opinion among the parties are shown.in the
! following table. A separate column indicates Intervenors', Staff's, and f LILCO's views. An "S" indicates that a contention was " subsumed" in r
! another and an "E" indicates that it stated matters which might be offered in evidence under another contention. An "A" indicates admitted and a "D" indicates denied.
~
Contention Ex Intervenors Staff LILCO 15 L A A D 16 A-0, F-J A S D 18 C A S D 1
l
-____ _ . . . ______.__._____f____,____.__.___. _ _ _ _ . , _ . _ _ _ _ , _ . , _ . _ _
. 22 F A S 0 22 I A S D 22 X A S 0 23 A E D~
24 A E D 25 'A E D 26 A E D 27 A E D 28 A E D 29 A D D 30 A E D 31 A S 0 32 A 5 D 37 A E D 42 A-G A D D A
44(firstsentence) A S 45 A-H A E D l 46 A- 0 0 l
t l The Table makes it clear that the confusion stems principally from
.f the use of the terms " subsumed" and " evidence" with respect to sont of the contentions. Only Contentions Ex 15 L, Ex 29, Ex 42 A-G, and Ex 46 do not involve the use of these terms.
l The tenn " subsumed" was used repeatedly in the prehearing Conference Order. Webster's Third New International Dictionary I - - -
l 7
Unabridged (1976) defines subsume "1: to view, list, or rate as compared in an overall or more comprehensive classificaticn, summation, or synthesis: encompass as a part, example, or phase: classify as a part of a larger scheme or judge as a specific instance governed by a general principle . . .". Thus when a contention was said to be
' " subsumed" within another contention, it was consolidated within that other contention. Any other view simply ignores the meaning of the term
" subsumed."
Staff has indicated those contentions which in its view, state matters which may be offered as evidence relevant to other contentions.
A review of the rulings on those contentions indicates that Staff's interpretation is correct.
At the conference of counsel held December 4, the Board handed the parties a version of the contentions which reflects this treatment.
.Those contentions subsumed within others were stated with the oth ers.
Similarly, for convenience of reference, the bases of those contentions which state evidentiary matters relevant to other contentions were l
stated with those other contentions. The remaining contentions are discussed below. .
LILCO takes the position (response to Intervenors' objections, pp.
2-5) that contention Ex 15 L should not be admitted but that contention Ex 21 should be interpreted as including the substance of Ex 15 L. In
~
essence, that is what has been done in the Board's version of the contentions and LILCO's position is rejected.
-_ =_ __ _ _ - . - . - _ _
-5 a s
LILCO urges (response to Intervenors' objections, pp.14-15) that Contention Ex 29 be stricken as duplicative of Ex 413 (iii)(a). The contentions are very similar. However, no harm is done by setting out Ex 29 with Ex 41 B, particularly in view of the fact that the Prehearing
- Conference Order (p.17) not'ed that Ex 29 stated a matter cognizable under Ex 41 B. (See Staff's response to the LILCO " Revised Standard Version," p. 6.)
LILC0 urges that Ex 42 was rejected and should not be set out in connection with any other contentions (response to Intervenors' objections, p. 20). LILCO is correct that this contention was rejected.
However, in rejecting it we pointed out that it is redundant to other contentions. To the extent that it sets out additional factual bases for other contentions, it has been incorporated in the Board's version of the contentions.6 LILCO's position with respect to Ex 46 (response to Intervenors' objections, p. 23) is rejected for the same reasons.
i l
Contentions Ex 15 and Ex 16 In our Prehearing Conference Order, we held, that contentions which allege that the February 13 exercise failed to meet the requirements of
. 7 6 In its version of the contentions, the Board erroneously included the preamble to this contention. The preamble should be stricken.
1
_g.
10 CFR Part 50, Appendix E, IV.F.1. are acceptable. Under this holding, we admitted contentions Ex 15 and 16. These contentions allege that the exercise did not include demonstrations or evaluations of major portions of the plan or of the capabilities of many persons and entitles relied upon for implementation.
FEMA, supported by LILC0 and Staff, seeks a reversal of this holding. FEMA suggests (motion, p. 8) that we have ignored the limitations contained in CLI-86-11 and have opened the hearing to challenges to the conduct, design, and scope of the exercise. FEMA believes (motion, p.10) that the exercise design and conduct are not relevant or material to the evaluation of the exercise and that FEMA should be subjected to scrutiny only on its evaluation. It maintains that it should not be required to ". . . engage in a contest as to.how to design a better exercise or exercise scenario particularly in a situation where FEMA has made no finding of reasonable assurance," and notes that its ". . . regulations do not require every element of every plan to be tested every time. This does not make the exercise meaningless. . . . The primary reason is that FEMA's regulations contemplate an exercise continuum where in the plan's various elements are tested periodically." (Motion, pp. 10-11.) In short, FEMA believes l
l l
that questions of exercise design and scope or conduct are committed to its discretion and are not challengable in NRC licensing hearings. (See motion, p.14.)
LILCO supports FEMA's position, LILCO's position is sumarized on pages 3 and 4 of its response.
- 1. The Board's construction of the UCS Case erroneously neglects both the latitude conceded by the Court of Appeals to the Comission to design the manner in which it would pennit litigation ;
over exercise results, and the fact that the Comission has
- exercised that latitude in structuring such litigation in C1.I-86-11, by limiting the admissibility of contentions to those that allege a demonstration of fundamental flaws in an emergency
- plan based on exercise perfomance. .
- 2. The Board's open-ended admission of contentions challenging the scope of the exercise, without requiring any showing that FEMA has departed from its normal practice, incorrectly fails to accord the deference due FEMA in the exercise of functions within the area of its expertise, disregards the presumption of regularity properly granted FEMA in the performance of its duties, and disregards FEMA's function under the FEMA-NRC Memorandum of Understanding.
- 3. Admission of contentions challenging the scope of the exercise is irreconcilable with the expert description of FEMA's implementation of its duties with respect to the licensing of nuclear power plants set forth in the motion for reconsideration filed by FEMA and in the attached affidavit of Robert S. Wilkerson.
- 4. Admission of contentions challenging FEMA's performance of its duties in structuring the scope of the exercise raises generic policy questions concerning the implementation of the NRC-FEMA Memorandum of Understanding which are appropriate for a i
rulemaking proceeding or interagency agreement, but are not appropriate for resolution in an individual licensing proceeding.
In its response, Staff takes the position that even if proved true, Contentions Ex 15 and 16 do not demonstrate a fundamental flaw in the l
plan revealed by the exercise. ,
In opposition, the Inteynoct-assert that their contentions do not challenge FEMA's design of the exercise scenario or its exercise
- processes. Rather, they maintain that the contentions challenge the exercise results and evaluations. This, they maintain, is clearly proper under Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C.
Cir. 1984). (See Government's response, pp.12-21.)
l l
l
s 4 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 implementability 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. (Government's response, p. 17, emphasis in original.)
We are not persuaded that we erred in admitting contentions Ex 15 and Ex 16. While the Intervenors' statement quoted above may stretch a semantic point in asserting that only exercise results are challenged, it is clear that the issues raised by these contentions are litigable.
It is true that the Connission directed that' this proceeding be limited to the exploration of alleg.id fundamental flaws in the plan demonstrated by the exercise. And it is also true that the results of the exercise are facia 11y distinguishable from the scope of the exercise. But that distinction does not hold up when viewed in light of the regulatory scheme governing emergency planning.
In our October 3 Prehearing Conference Order, we quoted 10 CFR Part 50, Appendix E, IV.r.l., which sets out the requirement for full l
l participation exercises. The paragraph immediately preceding the quoted provision states that "[t]he plan shall describe provisions for the Indeed, 9 IV in
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conduct of emergency preparedness exercises. . .".
which this requirement is stated is labeled " Content of Emergency f
I
- Pl ans '. " Thus the exercise is a provision of the plan.
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Further, the regulation calls for a " full participation exercise" to be conducted within a specified period prior to operation in excess
. of 5%.of rated power, and provides guidance with regard to the scope of such an exercise. LILC0 maintains that the February 13 exercise was
~
such an exercise. (See Tr. 16550-51, September 24, 1986; Tr. 47, December 4,1986.) It has indicated that it will seek a waiver of the requirement that the exercise occur within one year of operation if necessary. (Tr. 16551, September 24,1986.)
Moreover, the Commission has clearly stated its desire that the exercise be as full as possible and its belief that the exercise would at a minimum measure the effectiveness of LILCO's plan given the .
restrictions imposed on LILCO by the Intervenors.
The Commission does not disagree with the view that an exercise of the LILC0 plan could yield meaningful results, even though such an exercise may not satisfy all of the requirements of NRC's regulations. It could, as a minimum, identify the impact of the limitations of LILCO's plan when executed under the state and county restrictions. Although
! the Commission is aware that because of the recent court decision a full exercise of the LILCO emergency plan may not be possible, the staff should request that FEMA schedule as full an exercise of the LILCO plan as a feasible and lawful at the present time. (June 4,1985, Memorandum from S. J. Chilk to W. J. Dirks.)
From the J regoing is clear that:
/
' 15 The exercise was conducted pursuant to a provision of LILCO's
- 2. LILCO asserts that it was a " full participation exercise" which is required by the Commission's regulations prior to operation at more than 5% of rated power; and
s
- 3. If it is found not to ecmply with the Comission's regulations concerning the scope of a full participation exercise, it may constitute
" ...[adeficiency]whichpreclude[s]afindingofreasonable assurance that protective measures can and will be taken, i.e., [a fundamental flaw] in the plan." CLI-86-11, 23 NRC 577, 581 (1986).
It is beyond question that licensing hearings exist to permit the public to question whether the Connission'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.
Moreover, it would be wasteful of the Connission's.and the parties' resources to refuse to cons.ider these issues now. While in the circumstances O LCO may bear a heavy burden in seeking to demonstrate that the February 13 exercise met regulatory requirements, it cannot be pronounced an impossible burden now. Further, it is conceivable that a Consission ruling on the preemption issue could lighten that burden considerably. It would be most unfortunate if, at some point in the
^
future, all other issues regarding the exercise were decided in LILCO's favor and those raised by contentions Ex 15 and ,Ex'16 remained to be litigated. Moreover, any deficiencies which exist in the scope of the exercise should be identified early so that any feasible corrective
- action may be taken. Clearly, it is in the Connission's, FEMA's, the j parties', and the public's interest to take up these issues and resolve them now.
l
14 -
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 tne questioned on its evaluation of the exercise, it may not be questioned concerning whether the exercise meets NRC requirements. Because LILCO maintains that the exercise does meet those requirements, it must respond to questions bearing on' that issue.7 FEMA also objects to the admission of Ex 19, which asserts tfiat FEMA's inability to make a reasonable assurance finding based on the exercise precludes NRC from making such a finding. We admitted this contention for argument only, and we adhere to that ruling. Once the hearing is completed, the parties will be in a position to argue the proposition put forward by Ex 19. Like Ex 15 an,d 16, this contention
- should be taken up now. LILCO must meet the legal objection to its 7
Staff apparently takes no position on this issue. Tr. 16557, September 24, 1986. We trust that Staff will, at a minimum, advise us of its views on this issue in its proposed findings of fact and conclusions of law following the hearing, t
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position that this exercise satisfies regulatory requirements just as it must meet the factual arguments against its position.8 INTERVENORS OBJECTIONS Contentions Ex 1-7 and Ex 8-14 Intervenors object to our denial of Ex 1-7 and Ex 8-14. Because we did not believe that Intervenors have. raised any substantial reason to depart from our rulings on these contentions, we did not require that the other parties respond to these objections. (See Order of November 4,1986.) -
Contentions Ex 1-7 raise the question of LILCO's legal authority to imptant its emergency plan. They were rejected because they ". . .
allege matters that have already been litigated and were not raised by the exercise . . .". (Prehearing Conference Order, pp. 9-10.)
Intervenors attempt to place these contentions in the context of the exercise by arguing that they assert that the exercise demonstrated i
fundamental flaws in the LILCO plan because of LILCO's lack of legal authority, and point to CLI-86-14, 24 NRC , as authority for the i
i, 8 FEMA requests (motion, p.1) that, in the event we decide not to reconsider our rulings, we certify the question of the standards for admissibility of contentions bearing on FEMA's evaluation.
This request is denied. While we have adhered to our rulings, we believe we have also largely allayed FEMA's fears concerning this litigation. We do not believe certification is appropriate.
proposition 'that the Commission desired that the exercise be designed to reveal any defects in the plan as a result of the limitations on LILCO's authority.9 Contentions Ex 1-7 do nothing more than allege that LILCO lacks of legal authority to take certain specific actions. They are not in any
- way directed to the Commission's concern that the exercise be used to reveal defects in the plan resul. ting from this lack of legal authority.
These contentions do no more than raise issues which Fm e, already been heard. Consequently we adhere to our ruling and overrule Intervenors' objections. -
Intervenors' objections (pp. 6-8) to the dcDial of Ex 8-14 must also be overruled. These contentions all assert that LILCO's realism argument was not tested by the exercise because the ind'ividuals playing the roles of state and local officials assumed a passive role.
i Intervenors have failed to advance any reason to question our conclusion i
that these contentions do not raise material facts arising from the exercise which bear on the realism issue. These objections are overruled.
9 Objections, pp. 4-6. CLI-86-14 was originally served on January 30, 1986, and reserved on February 5 and September 15, 1986.
Apparently it will be published in the September 1986 NRC Issuances.
i J
- , , - - . , , . . . , , - --n- ,e - , , . - . , . . . , , . , - . . . , . . - - - . . - , _. , . , , - ~ . , . _ . , - - . - - , n-.-
Contention Ex 15 M Intervenors object to the denial of Ex 16 M (pp.11-13). We denied this contention for the same reasons as we denied Ex 8-14. Intervenors attempt to distinguish Ex 16 M from Ex 8-14 on the basis that the former raises the issue of the participation of Nassau County, while the latter do not. We agree with Staff (response, p. 4) and LILCO (response, pp.
26-27) that no meaningful distinction has been raised. This objection is overruled.
Contentions 15 J and 48 Intervenors object (pp. 8-11,25-26) to .our rejection .Ex 15 J and -
Ex 48. Ex 15 J concerns the alleged lack of any demonstration of procedures and arrangements for the treatment of offsite individuals who are both contaminated and injured, while Ex 48 raises the same concerns with respect to offsite individuals who are contaminated but not otherwise injured.
. Intervenors assert that our rulings on these contentions amount to ,
a failure to follow Commission regulations and the holding in Guard v.
NRC, 753 F.2d 1144 (D.C. Cir. 1985). They also assert that these contentions are completely different from the allegations of a similar
\
l I
I contention which was rejected in our Memorandum and Order of August 21, i 1985.10
- Whatever the merits of Intervenors' last assertion, it is clear that these contentions were properly rejected. At the outset, it must be noted that Guard v. NRC had nothing to do with arrangements for the treatment of offsite individuals who are both injured and contaminated.
The only issue presented to the court in that case concerned arrangements for the treatment of individuals who had been exposed to high levels of radiation but who were otherwise uninjured. Thus the Guard decision is not relevant to Ex 15 J.
The arrangements which must be made for the treatment of individuals who are both contaminated and otherwise injured were set forth by the Commission in Southern California Edison Company et'a1.
- (San Onofre Nuclear Generating Station, Units 2 and 3) CLI-83-10,17 NRC 528 (1983). The Connission summarized these requirements as follows
With respect to individuals who become injured and are also contaminated, the arrangements that are currently required for onsite personnel and emergency workers provide emergency capabilities which should be adequate for treatment of members of the general public. Therefore, no additional medical facilities or capabilities are required for the general public. However, facilities with which prior arrangements are i made and those local or regional facilities which have the capability to treat contaminated injured individuals should be identified. Additionally, emergency service organizations i within the plume exposure pathway emergency planning zone (EPZ) should be provided with information concerning the 10 Staff and LILCO oppose these objections. See Staff's response, pp.
3-4, 6-7; LILCO's response, pp. 24-26,32-777
- capability of medical facilities to handle individuals who are ,
contaminated and injured. 17 NRC at 530.
The Commission addressed these requirements on a generic ~ rather than case-specific basis in San Onofre. Thus these requirements are fully applicable to Shoreham.
The Consission's determination that arrangements for the treatment of onsite individuals will suffice for offsite individuals as well dictates that Ex 15 J be excluded. That contention recognizes that the exercise demonstrated the ability to treat an individual contaminated and injured onsite. The remaining requirements stated by the Commission essentially concern the compilation and dissemination of information, matters which are not amenable to exercises. Thus the exercise adequately addressed the question of treatment of contaminated and ,
injured individuals.
The Commission's Policy Statement of September 12, 1986,11 similarly dictates that Contention 48 was properly excluded. That Statement concludes that until detailed guidance on the, treatment of offsite individuals exposed to high levels of radiation is developed by Staff (scheduled for November 17,1986), Boards may continue to limit litigation on this topic to those matters which were litigable prior to the Guard decision. In its San Onofre decision (which was reviewed in Guard), the Commission limited this to an identification of facilities 11 51 Fed. Rec. 32904, September 17, 1986.
i
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with the capability to treat radiation induced injuries. This is not a subject which is amenable to exercise.
Contention Ex 18 8 Intervenors state (p.13) that they perceive no need to object to our rulings on Ex 18A and C provided that it is understood that the requirement for full participation exercise stated in 10 CFR Part 50, Appendix E, IV.F.1., are deemed to be a part of Ex 15 and 16. Our ruling on the latter contentions clearly sets out our conclusion that this regulatory requirement is involved in and, indeed, the i justification for accepting Ex 15 and 16.
,Intaryenors do object (p.14) to the de'nial o'f Ex 18 B. However, .
~
Ex 18 B does no more than reiterate that certain governments did not participate in the exercise and was properly rejected for the reasons Ex 8-14 were rejected. The objection is overruled.
Contention Ex 22 B-E, G, and H Intervenors object (pp.14-16) to the denial of Ex 22 B-E, G, and H. They assert that these contentions challenge the basis for FEMA's conclusions and must be admitted. Staff (response, p. 5) and LILCO (response, pp. 28-29) peint out that we were correct in concluding that none of these contentions raise matters that arose during the exercise i
_ - . _ . . - _ _ _ . . . . . _ _ _ , _ . . _ - _ - . . . . _. .,.-,.,.m_ . , . , _ . _ . , _ _ _ _ . _ . _ - _ _ _ _ _ _ , . _ _ - - _ _ _ , . _ . - _ _ . . _ _ _ - _ . . _ , _ . _ . _ _ _ . _ ,
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and that all the matters raised have been or will be litigated elsewhere.' We agree; the objections are overruled.
Contention Ex 33 Intervenors object (pp.17-18) to the denial of Ex 33. This contention alleges that notification of local and state government officials consumed more than the 15 minutes called for by Appendix E, IV. 0.3. LILCO correctly states (response, p. 29) that it was pointed out in LSP-85-12, 21 NRC 644 at 707-09, that state and local officials are not the offsite authorities to receive initial notification in this .
unique instance. Rather, it is LERO. This conclusion was not disturbed on appeal. "[LER03 acts, in part, as a . substitute for Suffolk County and the State of New York in performing emergency response functions."
ALAB-832, 23 NRC 135 at 149. Consequently, regardless whether our original conclusion that the delays involved do not amount to fundamental flaws was correct, this contention was properly denied because the requirement as to notification within 15 minutes applies to LERO, not the governments. The objection is overruled.
Contention Ex 34 Intervenors object (pp.18-20) to the denial of Ex 34 which raises the question of the timeliness of backup notification to the public in i .
the event of siren failure. Intervenors argue that failure of these backup procedures could amount to a fundamental flaw in the plan, citing NUREG-0654, Appendix 3, p. 3-3. LILCO (response, p. 30) opposes, but Staff (response, p. 5-6) does not. We agree with intervenors that this contention should have been admitted. The objection is sustained.
Contention Ex 35 Intervenors object (pp. 2,0-22) to the denial of Ex 35 which allege that LERO personnel failed to independently assess protective action recommendations made by LILCO. Intervenors essentially present the same arguments which were originally advanced in support of Ex 35. Staff (response, p. 6) and LIL'C0 (response, pp. 30-31) oppose on the groun'd that Ex 35 does not allege a violation of any regulatory requirement.
We agree. Intervenors have again failed to point to any stated requirement in the regulations or regulatory guidance which requires offsite authorities to independently assess information furnished by the operator of a nuclear plant. It is true that LBp-85-12, 21 NRC 644 at 679-82, concluded that independence between LILCO and LERO was desirable. However, this conclusion falls short of a requirement that LERO independently a:sess LILCO's protective action recommendations.
' The objection is overruled.
- < - , , , - .,-_...__.__---p .- ,,-._,,,,y- . __-_,.-.-__,,-.,_,.- --.-- , -y. . - _ _ , - - -- - - - ,-s , _ -- _-, - -_.
Contention Ex 38 K ^
Intervenors object (pp. 22-23) of the denial of Ex 38 K and state their belief that ~we misread the contention. In the prehearing conference order, we stated that the issue had previously been litigated. We should have stated that Ex 38 K, which alleges that the ENC was not promptly notified of the designation of congregate care centers, was denied because this designation is not to be made public.
See LILCO's response, p. 31. The objection is overruled.
Contention Ex 43 A Intervenors object (pp. 24-25) to the denial of Ex 43 A which ,
alleges that, because buses to transport transit dependent individuals were not available when the appropriate public announcement was made, a fundamental flaw exists in the plan. Intervenors assert .that the statement in the Prehearing Conference Order that this merely raises an administrative matter easily corrected amounts to an improper determination on the merits. Intervenors may be correct in their view of that statement. Nonetheless, assuming the factual allegations of the contention are true, no fundamental flaw is shown. While it would be better if the buses and the announcement were synchronized, the fact that the buses were later than announced simply is not a fundamental flaw. The objection is overruled.
3 4
0
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SCHEDULE
- At the December 4 conference of counsel (Tr. 82-85), it was agreed to designate December 24 as the cut-off date for the designation of ~
witnesses. Depositions were deferred pending issuance of this Memorandum and Order', but interrogatories were not (Tr. 80). As a result, eight depositions scheduled for this week will not be taken.
Counsel for Intervenors estimates that, in addition to' the depositions scheduled for the week of December 15 (which should proceed), another 30 remain to be taken. Assuming none can be taken over the holidays, and that two per day can be taken beginning in January as has been the practice (Tr. 86),' depositions.should be. completed by January 21, 1987.
LILC'0's testimony could theri be filed by February 4 and the hearing commenced on February 16. Intervenors', FEMA's, and any Staff testimony
- would be due 15 days prior to presentation.
Consequently, we adopt the following schedule:
December 19, 1986 - Termination of discovery except for depositions and discovery ordered pursuant to motions to compel.
~
Decembe~r 24, 1986 - Deadline for designation of witnesses.
January 21, 1987 - Deadline for completion of depositions.
February 4,1987 - Deadline for LILCO's testimony.
i February 16, 1987 - Commence hearing.
. - - - - - . . . -, _ . . , , . ,., - ..-,---,_ ---- -.,--, ,,- .,.n.,.,,, ,- _..-,.,,,....-n,_,,,, ..m,- , - , , - - - - - , - , . , .
Fifteen days prior - Deadline for Intervenors, FEMA, and Staff to week of pre- (if applicable) testimony, sentation ORDER In consideration of the foregoing, it is this 9th day of December, .
1986, ORDERED
- 1. Intervenors' objection to this Board's competence to rule on matters concerning the October 3, 1986, Prehearing Conference Order is DENIED;
- 2. The Board's rulings concerning which contentions were adnitted are embodied in the version of the contentions handed the parties by the Board on December 4 as modified on pages 8 and 21 above;
- 3. FEMA's motion to exclude Contentions Ex 15 Ex 16, and Ex 19 is DENIED;
- 4. FEMA's request for certification is DENIED;
- 5. Intervenors' objections to the denial of Contentions Ex 1-7, Ex 8-14, EX 15 D, Ex 18 C, EX 22 B-E, G, and H, Ex 33, Ex 35, Ex 38 X, Ex 43 A, and Ex 48 are OVERRULED;
- 6. Intervenors' objection to the denial of Contention Ex 34 is SUSTAINED; and 4
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- - - - - -, -m.--e------ e-m-.mm, e- -
- 7. The schedule set out above is adopted for this proceeding.
ATOMIC SAFETY AND LICENSING BOARD
' ) / j 'f f
,. M d k h v,o I4 w s.
Frederick J. Shon ADMINISTRATIVE JDD3E Dr. Oscar H. Paris ADMINISTRATIVE JUDGE John)M(Frye, III, Chainnan '
'ADMINIST{%TIVEJUDGE Bethesda, Maryland 4
e 9
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- ' UNITED STATES OF AMERICA
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%. e'< [' ' WCLEAR REGULATORY CCMMISSION
> - o '; BEFORE THE ATCMIC SAFETY AND LICENSING APPEAL BOARD -
- e ddChi;G.; .
w f i In the Matter of )
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_LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5 1, t ,
) (EP Exercise)'
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(Shorehu Nuclear Power Station, )
i Unit 3) )
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/(( CERTIFICATE OF SERVICE -
I hereby certify that copies of " FEMA PETIT 0N FOR LEAVE TO APPEAL, APPEAL
, i' MEMORANDUM, REQUEST FOR ESPEDITED CONSIDERATION OF APPEAL OF DECEMBER 11, 1986 c' ORDER (ALSB NO. 86-01-OL). AND REQUEST FOR STAY OF THAT ORDER WITH RESPECT TO DISCOVERY CONCERNING CONTENTIONS EX 15 AND 16" in the above-captioned 3
,f proceeding have been served on the following by deposit in the United States f . mall, first class this 31st day of December, 1986:
i John H. Frye, III, Chairman Fabian G. Palomino, Esq.
s Administr uive Judge Richard J. Zahnleuter, Esq.
i Atomic Safety & Licensing Board Special Counsel to the Governor N U.S. Nuclear Regulatory Commission Executive Chamber
, Washington, D.C. 20555 State Capitol
> Albany, NY 12224
- Oscar H. Jaris W. Taylor Reveley'III, Esq.
Administrative Judge Hunton & Williams Atomic Safety and Licensing Board 707 East Main Street U.S. Nuclear Regulatory Commission P.O. Box 1535 Washington, D.C. -
20555 Richmond, VA 23212 4
1 >
Jonathan D. Feinberg, Esq.
, Frederick. il., Shon Aodinistrdtive Judge New York State Department of
~
. Atomic Safety and Licensing Board Public Service
.U.S. Nu: lear Regulatory Commission Three Empire State Plaza Washington, D.C. 20555 Albany, NY 12223
Stephen B.'Latham, Esq.
John F. Shea, III, Esq. Herbert H.. Brown, Esq.**
Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.
Attorneys at Law Karla J. Letsche, Esq.
P.O. Box 398 Kirkpatrick & Lockhart 33 West Second Street 1800 M Street, N.W.
. Riverhead, NY 11901 9th Floor Washington, D.C. 20036-5891 Atomic Safety and Licensing Board Panel Joel Blun, Esq.
U.S. Nuclear Regulatory Commission Director, Utility Intervention Washington, D.C. 20555 NY State Consumer Protection Board Suite 1020 Atomic Safety and Licensing 99 Washington Avenue Appeal Board Panel Albany, NY 12210 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Monroe Schneider North Shore Committee P.O. Box 231 Docketing and Service Section Wading River, NY 11792 Office of the Secretary U.S. Nuclear Regulatory Commission Philip H. McIntire
. Washington, D.C. 20555 Federal Emergency Management Agency 26 Federal Plaza -
Spence Perry, Esq.** New York, New York 10278 General Counsel, Rm. 840
. Federal Emergency Management Agency 500 C Street, S.W.
Washington, D.C. 20472 Robert Abrams, Esq.
Attorney General of the State Gerald C. Crotty, Esq. of New York Ben Wiles, Esq. Attn: Peter Bienstock, Esq.
Counsel to the Governor Department of Law Executive Chamber State of New York State Capitol Two World Trade Center Albany, NY 12224 Room 46-14 New ' ."k, NY 10047 Anthony F. Earley, Jr., Esq. MHP %ChniC&i Associates General Counsel (?23 'amilton Avenue Long Island Lighting Company ' ai r- K
. 250 Old County Road $y ,>se, CA 95125 Mineola, NY 11501 Hon. Peter Cohalan Martin Bradley Ashare, Esq.
Suffolk County Executive Suffolk County Attorney County ExecutiveF.egislative Bldg. H. Lee Dennison Building Veteran's Memorial Highway Veteran's Memorial Highway Hauppauge, NY 11788 Hauppauge, NY 11788
J Mr. Jay Dunkleberger Ms. Nora Bredes New fork State Energy Office Shoreham Opponents Coalition Agency Building 2 195 East Main Street Empire State Plaza Smithtown, NY 11787 Albany, New York 12223
. Ellen Blackler Mr. Robert Hoffmnan New York State Assembly Ms. Susan Rosenfeld Energy Committee Ms. Sharlene Sherwin 626 Legislative Office Building '
P.O. Box 1355 Albany, NY 12248 Massapequa, NY 11758 Brookhaven Town ~Atterney Bernard M. Bordenick, Esq.
475 E. Main Street U.S. Nuclear Regulatory Agencyg Patchogue, NY 11772 773S Old Georgetown Road Bethesda, MD 20814 Samuel J. Chilk Office of General Counsel Secretary U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 k
William R. Cumming M&&_q j/
Federal Emergency Management Agency O
}
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