ML20213F526
| ML20213F526 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/10/1986 |
| From: | Cumming W Federal Emergency Management Agency |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1477 OL-5, NUDOCS 8611140253 | |
| Download: ML20213F526 (10) | |
Text
1919 00LKETED UNITED STATES OF AMERICA UPPC NUCLEAR REGULATORY COMMISSION
'85 N0712 P 4 56 Before the Atomic Safety and Licensing Board i,$,~
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-S
)
(EP Exercise)
(Shoreham Nuclear Power Station, Unit 1)
)
)
FEMA'S PETITION TO BOARD FOR LEAVE TO SUPPLEMENT ITS OCTOBER 27TH MEMORANDUM AND SUPPLEMENTAL MEMORANDUM IN SUPPORT OF FEMA'S OCTOBER 27TH MOTION FOR RECONSIDERATION AND FEMA'S RESPONSE TO SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON OBJECTIONS TO PREHEARING CONFERENCE ORDER I.
PETITION FOR LEAVE TO SUPPLEMENT OCTOBER 27TH MEMORANDUM AND SUPPLEMENTAL MEMORANDUM IN SUPPORT OF FEMA'S OCTOBER 27TH MOTION FOR RECONSIDERATION A.
Petition to Board for Leave to Supplement October 27th Memorandum Based on FEMA's review of the intervenor objections flied on October 27, 1986, in this proceeding, FEMA now believes that its earlier motion requires supplementation. Assuming that leave of the Board is required, FEMA hereby requests that such leave be. granted, particularly since the FEMA supplemental remarks are brief.
I 8611140253 861110 PDR ADOCK 05000322 Q363
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8.
The Board Analogy of FEMA's Evaluation Process to Staff Review of Environmental Issues is Incorrect As cited on page 2 of FEMA's October 27th Motion which in turn cites page 8 of the Board's October 3, 1986 order, the Board analogizes FEMA's responsibilities for participation in the exercise to be akin to Staff's responsibilities as called for by the National Environmental Policy Act of 1969, as amended (NEPA), (Pub. L.91-190, 83 Stat. 852, 856, as amended by Pub. L. 94-83, 89 Stat. 424, 42 U.S.C. 4321, et. seq.).
Since the analogy is not expanded upon further, but did and could lead to an erroneous interpretation of FEMA's role by the Board, a brief comment is in order.
For a recent comprehensive discussion of a federal agency's responsibilities under NEPA, see Coalition on Sensible Transportation Inc., v. Dole, 642 F. Supp. 573 (D. D.C. 1986).
FEMA believes that the Board may not be fully conversant with the appilcable regulations published at 40 C.F.R. Sections 1500-1508 (1985) which are mandatory and binding on all federal agencies, but have not been incorporated into NRC regulations. See 50 CFR Part 51.
FEMA having reviewed these regulations, and the NRC implementation of those regulations, finds no analogy that can be made to the FEMA evaluation process for either emergency planning or for exercises. Accordingly, FEMA objects to any express or implied analogy to the NRC Staff review process, and believes the Board should i
accordingly amend its order.
C.
The Board's October 3rd Order is Based on a Fundamental Misunderstanding f the FEMA-NRC Memorandum of Understanding (MOU) o In agreeing to the April, 1985, MOU, FEMA contemplated that in consideration of the decision in Union of Concerned Scientists v. Nuclear Regulatory Commission, 735 F.2d 1747 (D.C. Cir.1984), cert. Denied 105 S. Ct.
4
815 (1985) its findings on preparedness based on its evaluation of exercises would mesh with the-NRC licensing process when those findings were requested in the following mantier:
1.
Where FEMA found no deficiencies, FEMA would give a finding to NRC that the exercise (s) demonstrated that there is reasonable assurance that the plans could be implemented. Such a finding would be litigable under the UCS
- v. NRC case, supra, by having the basis for the FEMA finding, namely its evaluation, subject to the hearing process.
The FEMA finding, not the
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exercise itself, was what was material to the licensing process.
The Nuclear Regulatory Commmision Staff reviewed the design, scenario, and conduct of the exercise as part of the licensing process together with FEMA.
What was never s
explained to the Court in UCS v. NRC, supra, was that NRC did not conduct an independent review of the exercise because only the FEMA finding was material s
to the licensing proc 3ss. The importance of this process is highlighted in t!1e situation where there is a non-finding by FEMA, or a FEMA negative finding as to reasonable assurance, because in that event there is presumably even less likely to be an independent review by the full Commision or !ts Licensing Boards. FEMA contemplated that the litigation would then primarily involve intervenors and their admitted contentions.
2.
Where FEMA made no finding, er made a negative finding as to reasonable assurance, such a no finding determination, or negative finding as to reasonable assurance would be subject to litigation under the standards of UCS v. NRC, supra, to the extent that FEMA had determined that deficiencies existed. In that event, FEMA contemplated that the Applicant would more than A
likely be the party that would litigate the dete'rmination of the deficiencies. Additionally, Intervenors through the litigation process would support the determination of the deficiencies. Historically, however, the deficiencies have always been subject to scheduled remedial actions prior to making a finding.
Intervenors would argue that taken to its logical conclusion, in the no finding situation, or negative finding as to reasonable assurance, they are precluded from litigating under the test of UCS v. NRC, supra.
FEMA disagrees because this logic is based on a false premise.
The question is one of timing rather than preclusion.
Before the Commission can grant a full-power license, either FEMA, or the NRC through the use of its own finding must determine that there is reasonable assuraisce that the plan can be implemented. When such a finding is given then the evaluation is subject to litigation.
Here no. finding by FEMA has been made by FEMA.
The Board's October 3, 1986 Order, if unmodified, makes the process now illogical, besides not matching the Commission's own " fundamental flaw" standard as adopted in Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), CLI-86-ll, 23 NRC 577 (1986).
The Board's Order has it hearing argument and obtaining evidence so that it may determine that there is or is not reasonable assurance that the emergency plan can be implemented.
Nothing in the jurisdictional grant to the Board indicates or requires that it supplant the existing regulatory scheme.
Therefore, only intervenor contentions that support the FEMA determination of deficiencies should be admitted.
This is easily done by comparison of the proposed contentions to the POST EXERCISE ASSESSMENT, dated April 17, 1986, as transmitted to NRC by FEMA.
'w.
II.
FEMA RESPONSE TO SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON OBJECTIONS TO PREHEARING CONFERENCE ORDER A.
Intervencr's Objections Demonstrate Fundamental Inconsistency with CLI-11 Intervenors at page 5 of their October 27th brief state that "the purpose of this proceeding is to determine what the exercise results were and whether those results preclude a reasonable assurance finding." The Intervenors then argue that since the legal authority issue was not resolved' prior to the exercise the exercise purpose was to document the impact of that issue on the adequacy of the LILCO Plan.
FEMA did not need an exercise to document the impact of the so-called legal authority issue on the LILCO Plan.
FEMA'was required by the House Report accompanying the FY 1986 HUD-Independent Agencies Appropriations Act to presume that Federal, State and local governments will abide by their legal duties to protect pubile health and safety in an actual emergency.
See H.R. Rep. No.99-212, 99th Cong., 1st Sess., Reprinted in Cong. Rec. at 1538 (11/13/85). Accordingly, FEMA was free to determine or not determine deficiencies except to the extent they related to this previously stated Congressional presumption.
FEMA believes that its objection to Contentions EX 15, 16, and 19 are adequately covered in its October 27th Motion.
The itemization of contentions that Intervenors include in their objections at pages 2 and 3 demonstrate more than adequately that the Board by the use of terms " subsumed", " redundant".
" combined" and " consolidated" have created confusion as to what is to be litigated.
FEMA also objects to the " denied" contentions being admitted
. i o because that are not material or relevant to the conclusions in FEMA's POST EXERCISE ASSESSMENT, dated April 17, 1986, and therefore should be excluded.
With respect to Contention EX 18, this should be excluded because under the standards of CLI-11 no contentions are required to be admitted that serve to establish the legal limitations on the exercise. These matters are being or can be litigated in other forums and are not before this Board.
With respect to all other contentions discussed in Intervenors Objections, the Intervenors argue that they demonstrate a fundamental flaw in mechanical operations of the response mechanism, namely LERO, tha day of the
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exercise, or elements of the plan that were not tested.
To the extent that such contentions buttress, support, or further document FEMA determination of deficiencies, or were specifically excluded from the exercise for evaluation purposes, litigation on these issues are confirmatory but not material or relevant to determining whether the evlauation process revealed a fundamental flaw under CLI-11. Accordingly, to the extent excluded, the contentions should remain excluded, and to the extent admitted the contentions should be excluded.
B.
Intervenors Contentions Overlap with Litigation Before the OL-3 Board.
FEMA continues to' believe that this Board's jurisdiction is limited to review of FEMA's evaluation of the events of the exercise day.
To the extent that any contention of the Intervenors concerns the LILCO Plan or alternative modes of implementation of that plan, other than those represented the day of
_ 7 the exercise, those contentions are going to result in mere speculation by the Board as to what might or should have been done during the exercise.
The applicable test under CLI-Il is the relevancy or materiality of the contentions, including their basis and specificity, based on exercise results.
Respectfully submitted, s
$$ w- - - - -.
lilliam R. Cumming
/
Counsel for FEMA Dated at Washington, D.C.
this 10th day of November, 1986 4
,_w y,
e DCL E*l:
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'85 NOV 12 P4 56 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD GFF..
In the Matter of
)
fa ;
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of " FEMA"S PETITION TO BOARD FOR LEAVE TO SUPPLEMENT ITS OCTOBER 27TH MEMCRANDUM AND SUPPLEMENTAL MEMORANDUM IN SUPPORT OF FEMA'S OCTOBER 27TH MOTION FOR RECONSIDERATION AND FEMA'S RESPONSE TO SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON OBJECTIONS TO PREHEARING CONFERENCE ORDER" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class,or as indicated by a double asterisk by messenger, this 10th day of November, 1986:
John H. Frye, III, Chairman **
Fabian G. Palomino, Esq.
Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, D.C.
20555 Albany, NY 12224 Oscar H. Paris **
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 Frederick J. Shon**
Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, 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 1900 M Street, N.H.
Riverhead, NY 11901 8th Floor Washington, D.C.
20036 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 York, NY 10047 Anthony F. Earley, Jr., Esq.
MHB Technical Associates General Counsel 1723 Hamilton Avenue Long Island Lighting Company Suite K 250 Old County Road San Jose, CA 95125 Mineola, NY 11501 Hon. Peter Cohalan Martin Bradley Ashare, Esq.
Suffolk County Executive Suffolk County Attorney County Executive / Legislative Bldg.
H. Lee Dennison Building Veteran's Memorial Highway Veteran's Memorial Hignway Hauppauge, NY 11788 Hauppauge, NY 11788
4 8 Mr. Jay Dunkleberger Ms. Nora Bredes New York State Energy Office Shoreham Opponents Coalition Agency Building 2 195 East Main Street Empire State Plaza Smithtown, NY 11787 Albany, New York 12223 Chris Nolin 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 Attorney Bernard M. Bordenick, Esq.
475 E. Main Street Maryland National Bank Bull.ing d
Patchogue, NY 11772 Rm. 9604 Washington, DC 20555 f
F William R. Cumming s/
Federal Emergency Management Agency
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