ML20215M438
| ML20215M438 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/27/1986 |
| From: | Cumming W Federal Emergency Management Agency |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20215M440 | List: |
| References | |
| CON-#486-1294 OL-5, NUDOCS 8610300249 | |
| Download: ML20215M438 (17) | |
Text
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/M October 27, 1986 UNITED STATES OF AMERICA Uk1RC NUCLEAR REGULATORY COMMISSION
'85 0CI 29 P4 :36 Before the Atomic Safety and Licensing Board 7
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In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, Unit 1) )
)
FEDERAL EMERGENCY MANAGEMENT AGENCY'S MOTION TO RECONSIDER ATOMIC SAFETY AND LICENSING BOARD PREHEARING CONFERENCE ORDER DATED OCTOBER 3, 1986, AND MEMORANDUM AND SUPPORTING AFFIDAVIT IN SUPPORT OF THAT MOTION MOTION The Federal Emergency Management Agency respectfully requests that the Atomic Safety and Licensing Board reconsider its PREHEARING CONFERENCE ORDER (Ruling on Contentions and Establishing Discovery Schedule) with respect to the standards adopted for the admission of contentions in hearings on Federal Emergency Management Agency evaluations of utility emergency preparedness plan exercises for the reasons set forth in the memorandum and affidavit that follow. Should the Board decide not to reconsider its order, the Federal Emergency Management Agency requests that the Board certify to the ATOMIC SAFETY AND LICENSING APPEAL BOARD or the NUCLEAR REGULATORY COMMISSION and request expedited consideration of the issue of the standards for the adraission of cortentions for hearings on Federal Emergency Management Agency evaluations of utility emergency preparedness plan exercises.
8610300249 861027 2 DR ADOCK 0500 0
2-MEMORANDUM IN SUPPORT OF MOTION I.
THE OCTOBER 3. 1986. ORDER IS PREMISED ON ERRONECUS FACTUAL ASSUMPTIONS The Board's erroneous factual assumption is stated on pages 8 and 9 of its October 3, 1986 Order wherein it states:
The Board considers FEMA's responsibilities for participa-tion in the exercise to be akin to Staff's responst-bilities as called for by NEPA. FEMA cannot be called upon by the NRC to conduct a mandatory exercise to test offsite emergency preparedness at the Shoreham Nuclear Power Station, proceed to conduct the test and evaluate its results and then not be available to justify its actions. The FEMA review is directly at issue in the proceeding and that agency can be called upon to defend it. The regulations provide for making the FEMA finding a rebuttable presumption, not an irrebutable ene. (emphasis supplied)
The Board evidently premises its Order on the existence of a finding by the Federal Emergency Management Agency which does not exist in this case. The present FEMA-NRC Memorandum of Understanding (hereinafter MOU) dated April 18, 1985, (50 FR 15485) does utilize the term finding. So also does 10 CFR Part 50 l
and Appendix E to that Part. The evaluation of the exercise in this instance was pursuant to the MOU. 44 CFR 350.3 (e) and (f) indicate that FEMA will provide findings and determinations on such other plans as requested by NRC pursuant to the MOU.
Pursuant to the MOU, as of the date of this Motion no interim finding has been transmitted to the NRC and the no finding determination is predicated on the so-called " legal authority" issue being resolved in advance of FEMA issuing such a finding. FEMA does not interpret CLI-86-13, NRC (1986) as j comprehensively resolving the legal authority issue, and until resolved no 1
finding can be issued. FEMA Interprets the Board's legal conclusions as premised on FEMA having issued a finding, and therefore the Board analogizes this proceeding to previous emergency preparedness plan and exercise litigation involving the 44 CFR 350 process where state and local cooperation and planning were integral to FEMA making an evaluation of offs 1te emergency preparedness. By falling to make clear its analogy, however, the Board by its adopted rational and conclusions implicitly affects all future off-site emergency preparedness plan and exercise litigation, including presently licensed and operating plants, with its rationale and conclusions, and thereby creates a standard with impact beyond the scope of this proceeding. Because the unresolved legal authority issue impacts factually, as well as legally, the Board's erroneous adoption of standards for the admission of contentions it may otherwise wish to hear causes it to unnecessarily broaden the scope of the hearing well beyond the Board's jurisdiction.
II.
THE STANDARDS FOR ADMISSION OF CONTENTIONS ADOPTED BY THE BOARD ARE LEGALLY ERRONEOUS The Board's October 3, 1986 Order falls to conform to the legal rationale and result in the case of Union of Concerned Scientists v. Nuclear Regulatory Commission: 735 F.2d 1437 (D.C. Cir. 1984), Cert. Denied 105 S. Ct. 815 (1985). The Board's Order also falls to conform to the legal guidance given by the Commission in Long Island Lighting Company (Shoreham Nuclear Power l Station, Unit 1), CLI-86-11, 23 NRC 577 (1986) and CLI-13, NRC (1986)..
A brief history of FEMA's involvement in emergency planning provides the backdrop to the UCS v. NRC decision, supra. Following the accident at the
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l Three-Mile Island nuclear power plant in 1979, there was a groundswell of public and governmental concern about the adequacy of off-site emergency preparedness at nuclear power stations. For a general discussion see the Report of the President's Commission on the Accident at Three Mile Island (October 1979) and Areas Around Nuclear Facilities Should be Better Prepared for Radiological Emergencies, Report to the Congress by the Comptroller General of the United States (March 30, 1979). House Reports98-105 and 99-33 provide additional information.
It was only after the Three-Mile Island accident that the NRC required off-site emergency plans as a condition precedent to the issuance of a nuclear reactor full power license. Up to that time State and local governments prepared their plans on a purely voluntary basis, if at all. The Presidential Commission recommended that off-site emergency plans be prepared by State and local governments and that they be reviewed and evaluated by the federal government for existing and projected nuclear power plants. The Commission also recommended that this task be carried on by an agency other than the NRC, namely FEMA. The NRC, in the course of conforming to this recommendation announced that it "now viewed emergency plannning as equivalent to siting and design in public protection." (44 F.R. 75169 (1979) proposed rule on emergency response plans).
After rulemaking proceedings, in which the Commission made findings as to the necessity for planning and preparedness, the Commission in 1980 adopted and published a final rule concerning off-site emergency preparedness. The rule now provides 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).
FEMA, pursuant to Presidential direction, proceeded to enter into an MOU with the NRC to carry out its new responsibility. FEMA also issued regulations which met the NRC's substantive criteria and adopted procedural regulations to govern its evaluation process. See 44 CFR Part 350.
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). Language similar to that contained the 1980 Act was included in the 1982-83 NRC Authorization Act, Pub. L.97-415, Section 5, 96 Stat. 2067-69 (1983); and the 1984-1985 NRC Authorization Act, Pub. L.98-553, Section 108, 98 Stat. 2825-2827 (1984). 44 CFR Section 350.3(c) paralicis these authorities. A further relevant authority is the language in the Conference Report accompanying the FY 1986 HUD-Independent Agencies Appropriations Act that provides:
(I)n its review (of emergency plans), FEMA should presume that Federal, State and local governments will abide by their legal duties to protect public health and safety in an actual emergency . . .
See H.R. Rep. No.99-212, 99th Cong., 1st Sess., Reprinted in Cong. Rec. at 15358 (11/13/85).
The above statutes neither prescribe procedures nor dictate the means by which the statutory standard of " reasonable assurance" is to be attained. The Presidential assignment to FEMA was premised in part on FEMA's already existing role and that of its predecessor agencies in supporting State and local government in both training and emergency preparedness activities.
Congress approved the Presidential assignment at least in part because the delegated authorities under which FEMA operates support the assignment. See House Report 99-212, p. 37.
As discussed extensively during the oral argument before this Board on September 24, 1986, the UCS v. NRC decision, supra, provides the parameters of the Commission's discretion concerning the right to a hearing on a material factor relied upon by the NRC in making its licensing decisions. As a result, the NRC is restricted from precluding public access to the formal licensing process by excluding participation in a licensing hearing on exercise results.
The opinion of the Court is instructive wherein it states:
l He have already acknowledged that the NRC has great t
! discretion to decide what matters are relevant to its licensing decision, see Siegel, 400 F.2d at 783. He
[ conclude, however, that its discretion to limit public l participation in resolving the matters it deems relevant i is more circumscribed as a result of section 189(a)'s j hearing requirements. Administrators may not lightly I
l sidestep procedures that involve the public in deciding importantquestions of public policy. Environmental Defense Fund. Inc. v. Ruckleshaus, 439 F. 2d 584, 594 (D.C. Cir.
l 1971). "(T)he Commission is entitled to great freedom in its efforts to structure its proceedings so as to maintain their integrity while assuring meaningful public participation, but one of its goals must be to assure that there is meaningful public participation." Bellotti, 725 F.2d at 1389 (Hright, J.. dissenting) (emphasis in
, original). UCS v. NRC, supra, at 1446.
l The Federal Emergency Management Agency believes the Commission implementation of the guidance given to it by UCS v. NRC, supra, is further refined by CLI-ll, 23 NRC 577 (1986) and CLI-13, NRC (1986) and that this Board's discretion is also limited by those Orders. The Commission in CLI-11 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). Further on in the Order the Commission states "Under our regulations and pracuce, 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. Since only fundamental flaws are material licensing issues, the hearing may be restricted to those issues." (emphasis supplied).
Finally, the Commission highlighted its approach as folicws:
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. He 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 Commission then cryptically offered in Footnote 2 on page 6 the following comment: "The Board and the parties should keep in mind that the Commission's forthcoming decision on ALAB-818 may obviate the need for a hearing on the exercise results, or it might mandate more extensive
evidentiary hearings." FEMA can only assume that the forthcoming decision referred to in the footnote is CLI-86-13 NRC (1986).
FEMA believes that the Commission in CLI-13, even while remanding for additional fact finding on the LILCO plan, further focused the intent of the Commission in CLI-il to confine t'1e exercise hearing to appropriate review of the identified results of the exercise. The Board in its order of October 3, 1986, ignores the limitations on its charter and jurisdiction in this case and in effect opens the hearing to all contentions concerning the conduct, design, and scope of the exercise, particularly Contention EX 15 and Contention EX
- 16. Even assuming FEMA could discern from the language of the contentions their basis and specificity, which FEMA cannot, FEMA contends that its conduct of the evaluation of the exercise, assistance to the applicant in development of the exercise scenario, or other design issues can never show a " fundamental flaw" in an emergency plan. The reasons for this are several, but include the fact that FEMA is testing a process, not a mechanical result. For example, FEMA is not testing training but uses the results of the exercise and training impacts to evaluate the process of emergency preparedness. The Commission's own analysis of the " legal realism" and " materiality" argument in CLI-13 demonstrate the Commission's knowledge that FEMA is testing the process.
Litigation of the plan and litigation of the exercise are separate under NRC l regulations. In this instance, litigation of the plan is ongoing. FEMA does not use the term " fundamental flaw" in either its regulations or guidance.
FEMA does use the term " Inadequacies" in reviewing plans. FEMA uses the terms
" Deficiencies" and " Areas Requiring Corrective Action' in evaluating exercises. Plans by the very nature of the planning process are constantly I sub, ject to review and correction. Either the planning standards can be met or
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they cannot. Expertise in meeting the planning standards is not called for and the public or other parties can give meaningful input in the hearing process to show that the plan does or does not meet the standards. FEMA believes that the hearings on the planning process accomplished or will accomplish that comparison. The FEMA-NRC MOU contemplates that NRC and FEMA through the Regional Assistance Committees (RAC) will review plans and determine whether or not the emergency plan meets appropriate standards. FEMA gives expert advice on this issue, but under the M00 it does not approve plans.
FEMA's regulations contemplate that under the 44 CFR Part 350 process a virtually continuous exercise cycle is in place. FEMA encourages and to the extent it can requires that State and local governments and other Federal agencies and Departments, as well as private entities develop and exercise emergency preparedness plans for all emergencies, including radiological. The exercise system described by 44 CFR Part 350 reflects this philosophy. The regulations do not and indeed could not contemplate that statistical assurance or absolute certainty is ever achieveable in emergency plans or exercises.
Absolute assurance as opoosed to a reasonable assurance has not been required, just as the Commission in Ct.I-13 talks of dose-rata savings not complete protection. FEMA is evaluating and testing a behavioral process, not a
( mechanical or engineering result that might tend to give persons more comfort t
but in fact as previously discussed just masks behavioral uncertainty. The l
i Bcard's admission of contentions on exercise design and development of the exercise scenario places the Board in the position of trying to design a better exercise or determine a better scenario. This places FEMA in competition with the Board or even its own expert witnesses or intervenors witnesses with the prospect of mere speculative testimony on how the exercise
could be better designed or a more perfect scenario developed. The flaw in this approach is that the test of UCS v. NRC, supra, is not met. Meaningful participation by the public is denied because the Board is now involved in issues of exercise design and conduct instead of determining whether the specific results of the exercise on the day of the exercise indicate a
" fundamentally flawed" (to use the Commission's words) plan or exercise. The issues before this Board concern the following key points: What was the event created for the plan and personnel to respond to? Does that event create a situation similar to those on which previous findings of assurance by Boards and the Commission have been based? Was the performance as documented in the exercise report adequate to allow you to recommend that the preparedness as demonstrated is adequate? The parentage of the event and the evaluators does not seem relevant. Rather the question is the character and product of the exercise process on the date of the exercise and contained in the report. In brief, since exercise design and conduct are not relevant or material to the evaluation of the process of emergency preparedness reflected in the plan and exercise, FEMA should be subject to hearing only on its process of evaluation.
Since FEMA did determine deficiencies based on the exercise, the Board can legitimately inquire into why FEMA did or did not find deficiencies. The specific conduct of the exercise is not relevant or material since the process of determining specific deficiencies, if any (which may also be rebutted by i the applicant), and FEMA's conclusions as to what are or are not deficiencies 1
are only FEMA's best professional judgement and may be rebutted. The Board i should admit only those contentions that satisfy the Commission's standards.
FEMA never gives a finding of absolute assurance and does not wish to engage in a contest as to how to design a better exercise or exercise scenario I
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particularly in a situation where FEMA has made no finding of reasonable assurance. The Board's standards for the admission of contentions puts FEMA in a bidding war against itself because unless FEMA has unlimited resources there are few FEMA personnel who could not design and then test beyond the standards currently called for by FEMA and NRC regulations. Such a process may someday be required. FEMA asserts, however, that no ultimate assurance or complete certainty can be achieved irrespective of the amount of resources committed. This is inherent in the concept of emergency planning, which tries to impcove the process of response with specific mechanical imprciemen'es and ,
training improvements as a further result. The Board's standards for admission might make sense if some kind of statistical assurance and absolute standard of protection were possible and the regulatory goal. This is not presently required. FEMA's regulations do not require every element of every plan to be tested every time. This does not make the exercise meaningless.
The reason for this is not just resource related, although that clearly is a factor. The primary reason is that FEMA's regulations contemplate an exercise continuum wherein the plan's various elements are tested periodically. The Board, under NRC proceaures, has to use the exercise results as of the day of the exercise to hear rebuttal testimony on the evaluation process. All parties would presumably agree that circumstances the day of the exercise are never exactly the same. The analogy is between the FEMA use of a balance sheet approach with the Board being asked to base its decision solely on what happened the day of the exercise, a point-in-time or profit-or-loss statement approach.
The whole point of using the exercise as a test procedure is that over time plans can be refined, developed and improved. Exercises help prevent the
problem of excellent paper plans that are otherwise unrealistic. FEMA as a matter of policy tries to avoid being placed into the position of dcveloping a checklist approach to exercise evaluation where the exercise participants then start to rely on only certain items being checked and the discretion of the reviewers being limited to only those items on the checklist. Free-play and simulations during exercises can result in major planned and unplanned deviations from the exercise design or exercise scenario. The results of those deviations are what is important not the fact that they were deviations. This goes to the basic standards of relevancy and materiality which is what UCS v. NRC, supra, CLI-ll and CLI-13 are all about, and from which this Board deviated in its October 3, 1986 Order.
Unlike the NRC, FEMA is not free to choose the particular hazard or site i
for which it must try to improve the emergency planning process. There could be a terrorist or other uncontrolled toxic release for which it must be prepared, as least with respect to planning for, assisting other federal agencies, responding with financial or technical assistance to State or local governments should a Presidential disaster or emergency be declared. Even in the radiological context, plans such as the Federal Radiological Emergency Response Plan require planning and periodic testing. See 50 F.R. 46542, I November 8, 1985.
In this instance to admit exercise conduct, design and scenario development contentions is to launch the Board in the direction of having made a threshold decision that conduct, design and scenario were so grossly deficient as to make meaningless the exercise evaluation process. FEMA would argue that no contention Indicates the basis and specificity for the Board to
adopt such an analysis as was conceded in oral argument on September 24th, when intervenor's counsel at page 16,564 stated:
To suggest that in deciding whether a contention which talks solely about what happened on February 13 with respect to this plan, that in deciding whether that's admissable you are supposed to and figure out what FEMA did at other plants and other exercises, is just ridiculous. . . What we put into issue here is the only thing that is relevant in in this case. And that is whether what happened on February 13 could result in a finding by you that there is reasonable assurance of certain capabilities and abilities on the part of LILCO.
As a principle of exercise evaluation it is important to note that FEMA is not concerned with who designed the exercise, since arguendo almost anyone with the completed plan and reasonable diligence could decide appropriate elements to be tested. FEMA believes it likely that certain highly qualifed individuals could adequately test the process of emergency response even without a formal exercise scenario. Since the exercise results are not based on statistical probability or statistical certainty, but primarily are judgement decisions by professionals in emergency management who have some past background or experience in institutional or governmental response to emergencies, experience has shown that exercise results are one of the material factors in evaluating the process of emergency preparedness.
FEMA's primary expertise concerns State and local response to emergencies.
However, because of the extensive variety of governmental units in the United States, over 39,000 for the purposes of federal revenue sharing alone, the capability to respond to emergencies ranges from the most skilled, technically proficient, and resource rich units of State and local government to those with no professional emergency response capability, with the possible exception of police or local volunteer fire units. FEMA does not care who i
e
responds, only that there be some response, hopefully the best possible.
Accordingly, in some instances large utilities or other private corporations or the federal government may in fact be the only organizations with assets that can respond. Thus, FEMA has no preconceived notion as to what is the ideal responsa organization to the range of potential emergencies. Preference for response organizations that are fully integrated with State and local governments is still, however, FEMA's first preference, and that preference is based on the hard experience of 348 Presidentially declared disasters alone from April 1, 1974 to June 30, 1986. This preference organizationally was the premise behind the President's Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p.329 (43 F.R. 41943), 5 U.SC. App. 1, p. 127., that created FEMA.
The Board may wish to design or redesign the exercise or rewrite the scenario or change the conduct of the exercise conducted on February 13, 1986, but its discretion has been limited by UCS v. NRC, supra, and CLI-il and CLI-13, to the results on that exercise day. The exercise evaluation techniques are committed to agency discretion and the Board can only look to exercise results. Parties dissatisfied with the way FEMA conducts exercises, or determines exercise design or scenario can seek the appropriate mandatory or prohibitory injunctive relief in federal court, or even petition FEMA for rulemaking. The use of an ASLB to litigate these issues is inappropriate when the Board's jurisdiction is limited to examining only exercise results. For the reasons stated above, the admission of contentions that are remote in time or place for their basis from the specific events of the day of the exercise reduce the hearing process to speculation and should be excluded as not being relevant or material to evaluation of the process reflected in 44 CFR 350.
III THE BOARD'S ADMISSION OF CONTENTION EX 19 IS ERRONEOUS The Board on page 13 of its October 3,1986 Order states:
Contention Ex 19. Admitted for Argument Only Contentions EX 19 is, in the Board's view, a matter for legal argument, not for factual dispute. He will not accept evidence on it, but we will entertain legal argument as to the extent to which FEMA's inability to make a favorable finding reveals a fundamental flaw in the plan.
FEMA falls to understand the rationale or conclusion for admission of this contention, even for the purpose of legal argument alone. Once again, the Board confuses the plan, the exercise, and the evaluation of the exercise. The history of FEMA's concerns over the so-called " legal authority" issue.are well documented and were integral to its prior review and on-going review of Revisions 7 & 8 of the plan. FEMA's understanding is that the plan litigation is currently before a different ASLB, and fails to see the relevance of Contention EX 19 in the context of the events of Febreary 13, 1986. It suffices to state that legal argument on this issue may be cognizable in other
! forums including the Federal courts and the full Commission. How legal I
argument before this Board will illuminate further the exercise evaluation process and FEMA's presentation of its witnesses requires clarification. FEMA did find deficiencies in the exercise. Assuming arguendo that FEMA equated deficiencies to a fundamental flaw in the plan or the exercise (which it does not) and therefore fails to give a finding of reasonable assurance, nothing precludes the correction of those deficiencies prior to remedial exercises.
In brief. FEMA finds no indication that this Board has been given jurisdiction to determine whether FEMA's inability to make a finding is a fundamental flaw in the plan or the exercise, or the exercise evaluation process. Finally, the
Board's admission of Contention EX 19 is inconsistent with its ruling on Contentions EX l-7.
IV.
THE BOARD'S OCTOBER 3, 1986 ORDER LEAVES OPEN TO ARGUMENT WHICH CONTENTIONS HAVE BEEN ADMITTED The Board's Order of October 3, 1986, is confusing in its partial admittance or denial of contentions. Throughout the Board's description of contentions being " subsumed", " redundant", " combined", and " consolidated",
FEMA finds the Board"s Order leaves open to argument what contentions are in fact admitted. Should the Board fall to give reconsideration on any other basis, FEMA requests that the Board require Counsel for the respective parties to file their proposed versions of admitted contentions, so that the Board may resolve disputes on admitted contentions prior to the hearing.
V.
CONCLUSION For the reasons stated above, FEMA requests that the Board reconsider their Order of October 3, 1986, in all respects except with respect to scheduling and discovery.
Respectfully submitted, Hilliam R. Cummin,g Office of General Counsel [
Federal Emergency Management Agency 500 C St., S.W.
Washington, D.C. 20472 DATEQ: October 27, 1986