ML20215E693
| ML20215E693 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/18/1986 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1952 OL-5, NUDOCS 8612230075 | |
| Download: ML20215E693 (7) | |
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[h2-LILCO, December 18, 1986 UNITED STATES OF AMERICA UPEI,ED NUCLEAR REGULATORY COMMISSION
'86 DEC 19 Pl2:39 Before the Atomic Safety and Licensing Board OCv L ' _
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S SUPPLEMENT TO ITS NOVEMBER 24,1986 MOTION TO COMPEL DISCOVERY OF NEW YORK STATE LILCO supplements its November 24 motion to compel discovery against New York State with respect to FEMA graded exercises in light of (1) the Board's December 11 Memorandum and Order and (2) the December 15 deposition of Frank Petrone, former Director of FEMA Region 2. Good cause exists for !!11ng this supplement since it deals solely with matters which have occurred since the filing of the papers now pending before the Board and since these recent events are highly significant if not dis-positive for the outcome.
In its December 11 Memorandum and Order the Board, by admitting and dis-cussing Contentions EX 15 and 16, made the sufficiency of the scope of the February 13,1986 offsite emergency planning exercise for the Shoreham plant a substantive issue in this proceeding. Specifically, the Board has admitted for consideration the question whether the February 13 exercise - whatever those who developed it intended it to constitute - satisfies the Commission's requirements, which LILCO understands to mean the " full participation" language of paragraph IV.F.1. (and its footnote 4) of Ap-pendix E to 10 CFR Part 50. While acknowledging LILCO's argument that the intended scope of litigation of emergency planning exercises focuses on their results, the Board stated that in its view the distinction between results and scope "does not hold up when 8612230075 861210 0
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- viewed in light of the regulatory scheme governing emergency planning." Memorandum and Order Ruling on FEMA's Motion for Reconsideration..." (December 11,1986) at
- 11. That ruling is the presently operative guidance for this proceeding.
The provision regarded by the Board's December 11 Memorandum and Order as relevant - paragraph IV.F.1 (and footnote 4) of 10 CFR Part 50 Appendix E - is not self-implementing. Nor has research disclosed any significant administrative or judicial construction of that language. Thus one principal means of demonstrating its meaning is to evaluate other exercises which have been found by the Commission to have met its requirements.II LILCO attempted to do this in its recent deposition of Frank Petrone, who was Director of FEMA Region 2 (which consists of New York, New Jersey, Puerto Rico and the Virgin Islands) at the time of the Shoreham exercise and is now being proffered as a witness on Contentions EX 15 and 16 by the State of New York. That effort was frus-trated, however, by a combination of Mr. Petrone's ignorance and counsel's contuma-clous refusal to permit him to answer questions, without even any assertion of privilege, but rather simply on an asserted basis of lack of relevance.
1/
While the Board's view as to the relevance of paragraph IV.F.1 of Appendix E is clear, the historic implementation of that provision and its meshing with FEMA requirements and practice are far less so. Specifically, how an exercise structured by FEMA pursuant to joint NRC-FEMA guidance (NUREG-0654/ FEMA-REP-1) the FEMA-specific guidance (FEMA Guidance Memorandum 17) is translated into a " full participa-tion exercise" under the NRC's regulations in 10 CFR Part 50 Appendix E is not clear on the face of any regulation. The difficulty is institutional 1 zed by the facts that (1) the NRC rules on license applications for plants as to which (2) FEMA is the acknowl-edged expert in offsite emergency planning and as to which (3) the NRC and FEMA divide responsibility under a Memorandum of Understanding, under which (4) FEMA develops, conducts and evaluates exercises pursuant to its own guidance and (5) the NRC then rules on them in licensing proceedings pursuant to its own guidance, without (6) any definitive statement of the relationship between FEMA's and NRC's guidance structures. It is LILCO's contention that FEMA's and the NRC's requirements devolve from the same origin (NUREG-0654/ FEMA-REP-1) and are the same. Demonstrating that, however, in the absence of a definitive interagency statement requires an under-standing of execcises conducted to date. There thus is no substitute for the production of documentation and expert information on exercises conducted in FEMA Region 2, which includes New York State.
4 In that deposition, a. copy of the transcript of which is enclosed as a courtesy to the Board, Mr. Petrone acknowledged that there had been numerous full-scale exercises in his region during his tenure (see Petrone Deposition Tr. 42-43 and Exhibit C thereto, which states that there have been 17 full-scale exercises since 1981 in Region 2). He also acknowledged correspondence between the NRC and FEMA (Petrone Deposition Tr.
76-78 and Exhibits K and L) setting up as complete an exercise as feasible for Shoreham,E and indicating that the exercise as actually structured was considered a
" full scale" exercise by the FEMA RAC chairman responsible for it (Petrone Deposition Tr. 96-98 and Exhibit O). However, Mr. Petrone was unable to shed any light, except for the obvious fact of the absence of state and local governments, on how the Shoreham exercise compared with any of the other exercises held in Region 2 during his tenure which FEMA had classed as " full scale."
Specifically, Mr. Petrone could not say, as to any of these other Region 2 exer-cises conducted during his tenure, how their scope would have utilized either of the seminal guidance documents - NUREG-0654/ FEMA-REP-1 or FEMA Guidance Memo-randum 17 (Petrone Exhibit A? - with respect to either their objectives or their sce-narios. Tr. 94-95. Nor, in fact, could he shed any light even on the design of the Shoreham exercise, other than to acknowledge that FEMA's goal was to design a full-scale exercise within any existing constraints caused by the refusal of state and local governments to participate. Tr. 96-99. Counsel for New York State, actively joined by counsel for Suffolk County, instructed Mr. Petrone not to answer any further questions 2/
Exhibit L, an October 29, 1986 letter from Samuel L. Speck of FEMA to William R. Dircks of NRC, outlines as " Option 2" an exercise "which would include all functions and normal exercise objectives.... Exercise controllers would simulate the roles of i
key State or local officials unable or unwilling to participate." M. at 2. Such an exer-l cise, in Mr. Speck's view, "would have value in decisions to continue the licensing pro-i cess or possibly provide a basis on which the NRC could make predictive findings. Ob-viously, the value of such an exercise in the licensing process is a determination which j
can only be made by the NRC." M. at 1 (emphasis supplied).
5 on the subject of other exercises, not asserting any privilege but merely the irrelevance in their view of other exercises.W As is outlined in LILCO's original motion to compel discovery, an ability to com-pare the Shoreham exercise with other exercises accepted by the NRC as full partici-l pation exercises is highly useful if not actually essential to understanding the interpre-tation in practice of the delphic, unconstrued language of 10 CFR Appendix E.
One centrally logical source of information on this subject is actual NRC practice in the pertinent FEMA region. One most likely source of such information - the former Di-rector of the FEMA region, now produced as a witness by New York State on these very i
contentions - appears unable to contribute materially to this issue.
The New York State officials whose identity and information LILCO has sought, j
thus far without any success, are vital to answering these questions. They are the per-i sons who designed the exercises for other nuclear plants in New York State, partici-j pated in them, and worked with FEMA to evaluate and correct them. They and their documents can tell the objectives for those exercises; they can tell their scenarios; they can tell how many of the criteria of NUREG-0654 were intended to te demon-strated in the exercises, and know how many of the objectives of FEM A GWdance Mem-orandum 17 were intended to be demonstrated; they can tell how these goals were translated into exercise-specific objectives and scenarios. Their knowledge is intimate, l
detailed and perhaps unique. Without an ability to obtain that information LILCO will be severly prejudiced in its efforts to demonstrate that which the Board's December 11 Memorandum and Order have compe!!ed it to demonstrate - that its exercise is 3/
All further inquiry with respect to other exercises was repeatedly barred by in-l structions from Mr. Petrone's counsel not to answer on grounds of relevance, not privi-lege. (Tr. 43-45, 85-93). Such obstructionist tactics are improper. LILCO eventually i
agreed to recede from further questioning of Mr. Petrone, rather than seek the Board's i
l assistance, simply because the apparent state of Mr. Petrone's knowledge, in sworn tes-timony, made it apparent that he had litt!e additional light to shed on the subject.
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consistent with other exercises which the NRC has held to satisfy its " full participa-l tion" requirements of Appendix E to Part 50.
For the above reasons, in addition to those outlined in LILCO's November 24 Motion to Compel, the Board should order New York State to provide LILCO the discov-e,ry requested in its first set of interrogatories to New York State and to produce for f
deposition to knowledgeable persons identified in anwers to those interrogatories and subsequently requested by LILCO.
t Respectfully submitted, l
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D6nald P. Irwin Lee B. Zeugin Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: December 18,1986 l
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J LILCO, December 180 1936 DDEH L M5 W CERTIFICATE OF SERVICE
'86 DEC 19 Pl2:39 In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
[,0C$bb + j)b Docket No. 50-322-OL-5 aAta I hereby certify that copies of LILCO'S SUPPLEMENT TO ITS NOVEMBER 24, 1986 MOTION TO COMPEL DISCOVERY OF NEW YORK STATE were served this date upon the following by Federal Express as indicated by an asterisk, or by first-class mail, postage prepaid, and that copies of the stenographic transcript of the December 15, 1986 Deposition of Frank Petrone were served on those persons marked with a double asterisk.
John H. Frye, III, Chairman *,**
Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers 4350 East-West Hwy.
Bernard M. Bordenick, Esq.
- Bethesda, MD 20814 Oreste Russ Pirfo, Esq.
Edwin J. Reis, Esq.
Dr. Oscar H. Paris *,**
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 7735 Old Georgetown Road Board (to mailroom)
U.S. Nuclear Regulatory Commission Bethesda, MD 20814 East-West Towers 4350 East-West Hwy.
Herbert H. Brown, Esq.
- Bethesda, MD 20814 Lawrence Coe Lanpher, Esq.
Karla J. Letsche, Esq.
Mr. Frederick J. Shon *,**
Kirkpatrick & Lockhart Atomic Safety and Licensing South Lobby - 9th Floor Board 1800 M Street, N.W.
U.S. Nuclear Regulatory Commission Washington, D.C. 20036-5891 East-West Towers, Rm. 430 4350 East-West Hwy.
Fabian G. Palomino, Esq.
- Bethesda, MD 20814 Richard J. Zahnleuter, Esq.
Special Counsel to the Governor Secretary of the Commission **
Executive Chamber Attention Docketing and Service Room 229 Section State Capitol U.S. Nuclear Regulatory Commission Albany, New York 12224 1717 H Street, N.W.
Washington, D.C. 20555 Mary Gundrum, Esq.
Assistant Attorney General Atomic Safety and Licensing 120 Broadway Appeal Board Panel Third Floor, Room 3-116 U.S. Nuclear Regulatory Commission New York, New York 10271 Washington, D.C. 20555
.s-1 J Spence W. Perry, Esq.
- Ms. Nora Bredes William R. Cumming, Esq.
Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York State Erergy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 Martin Bradley Ashare, Esq.
Stephen B. Latham, Esq.
- Eugene R. Kelly, Esq.
r Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 New York, New York 10278 Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Counsel 4
Three Rockefeller Plaza Albany, New York 12223
+
Donald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212
)
DATED: December 18, 1986 i
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