ML20235N119
| ML20235N119 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/24/1989 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#189-8091 ALAB-698, ALAB-717, ALAB-903, CLI-88-09, CLI-88-9, LBP-86-11, LBP-88-32, LBP-89-01, LBP-89-1, OL-5, NUDOCS 8903010043 | |
| Download: ML20235N119 (29) | |
Text
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, PRO D. & UTIL FAC.'q, y.2 E- -E-Y Jegirt.T MtiMSER (f6
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l j-LILCO, February 2,4yy1S8_9 UMC L
UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION
'89 FEB 27 P2 :00 q
4 w;
E_q1 ore the Atomic Safety and Licensina Board)CJ Y >
+
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In-the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50 ',22-OL-5R
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(EP Exercise)
(Shoreham Nuclear Power
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.i Station, Unit 1)
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)
1 LONG ISLAND LIGHTING COMPANY'S RESPONSE TO FEBRUARY 6 ORDER CONCERNING EFFECT OF FEMA FINDINGS, AND MOTION TO DISMISS CONTENTIONS ON BASIS OF ALAB-903 This in LILCO's response to the Licensing Board's February 6 Memorandum and Order, which:
(1) requested the parties to address the presumption that attaches to a FEMA finding of adequacy of offsite emergency preparedness in light of two recent decisions in this matter, CLI-88-9 and ALAB-903, in determining the admissibility of testimony contesting the adequacy of an offsite emergency planning exercise; and (2) instructed the parties to file any appropriate motions, in light of such a filing, regarding the admissibliity of Interveners' testimony.M M The testimony admissibility criteria discussed in this paper are those applicable to testimony filed for the purpose of overcoming a FEMA finding of adequacy in an exercise proceeding, and do not include such standard criteria as relevance, h ADO
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. I. Introducti2D J
On June'7-9, 1988 LILCO conducted a FEMA-graded offsite exercise for the Shoreham Nuclear Power Station.
On September 2, q
l 7EMA issued a Post-Exercise Assessment which found that no j
deficiencies in the Shoreham Offsite Emergency Plan were revealed by the exercise.
On September 9, FEP.A issued a finding, based on the exercise and on review of Revision 10 of the Shoreham offsite emergency plan, that that Plan provides reasonable assurance of protection of the health and safety of the public in the event of a radiological emergency.
Letter, Grant C. Peterson (FEMA) to Victo't Stello, Jr. (NRC), September 9, 1989.
Under the Commiasion's regulations, that FEMA finding constitutes a
" rebuttable presumption on questions of adequacy and implementation capability."
10 C.F.R. 5 50.47 (a) (2).
Commission regulations permit examination of FEMA exercise findings in expedited post-exercise litigation, in order to determine whether the exercise revealed any " fundamental flaws" in the offsite emergency plan being exercised. Union qf Concerned Scientists v.
NRC, 735 F.2d 1437 (D.C. Cir. 1984),
cert. denied 469 U.S.
1132 (1985); CLI-88-9, 28 NRC (December 1, 1988), slip op.
4.
The term " fundamental flaw" has been recently defined by the NRC Appeal Board, in the context of materiality, nonduplicativeness, and competence.
Those
" standard" criteria are appropriately the subject of motions to strike at a designated time.
Under CLI-88-9, those motions are to be argued at the prehearing conference scheduled for March 13.
, 4 litigation over the 1986 Shoreham exercise, as having two principal dimensions:
(1) failure of an essential element of the emergency plan, as measured by the 16 basic emergency pla ning standards in 10 C.F.R.
S 50.47(b) and Appendix E thereto, a 2 (2) i remedy only through significant revision of the emergency plan.
ALAB-903, 28 NRC 499, 505 (1988).
Three weeks after issuance of ALAB-903 -- and subsequent to the Interveners' filing of contentions in this proceeding -- the Commission issued CLI-88-9, which set scheduling and other parameters for proceedings on the 1988 Shoreham exercise and required that any testimony contesting the presumptive effect of FEMA findings be " sufficient to rebut the presumption (of adequacy] created" by those findings.
Isk slip op. 6 1 10.
The immediate predicate for the Board's Memorandum and Order was the Board's concern about potential conflict between those two rulings in this proceeding, and a ruling in a 1981 Appeal Board decision, ALAB-698, concerning litigation of an offsite emergency plan (not exercise) in the Three Mile Island proceeding:
In CLI-88-9, the Cctumission noted that the Interveners have "... the burden of going forward with evidence in support of (their] contention (s) sufficient to rebut the presumption created by the FEMA findings...." Moreover, in AIAB-903, 28 NRC 499, 507-08 (1988), the /opeal Board noted that a party tryirg to overturn a FENA finding has a greater task than would be the case if no presumption attached to those findings.
In i
IEP-89-1, 29 NRC (slip op. p.25 fn.45) (1989) We noted that the Appeal Board's statement in ALAB-903 might not be consistent with the holding in Metmx)litan Edison Co. ('Ihree Mile Island Nuclear Station, Unit 1), AIAB-698,16 NRC 1290, j
. s-1298-99 (1981) that a FEMA finiing is the equivalent of a Regulatory Guide and is to be treated sinply as evidence of ocupWnce with regulatory requirements. 'Ihus the precise effect to be accorded the FEMA findings is not clear.
(February 6 Memorandum and Order at 2-3).
II. Summary of LILCO's Views LILCO's views on the matters raised by the Board's February 6 Memorandum and Order may be summarized as follows:
- 1. Failure to Address Contentions / FEMA Findinas:
A FEMA finding of adequacy of offsite emergency preparedness is, like observance of a Regulatory Guide, equivalent to a crima facie demonstration of satisfaction of the NRC's standards.
E,q,
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-698, 16 NRC 1290, 1298-99 (1982). Unless properly rebutted, it is sufficient to afford the relief sought, i.e.,
a finding of reasonable assurance and issuance of a license by the NRC. Isl. ; Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant), LBP-86-11, 23 NRC 294 (1986).
If properly rebutted, the effect of the presumption is offset, a trial may proceed, and the outcome is determined by the weight of the evidence admitted from all parties.
But unless contentions and the FEMA findings they relate to are addressed substantially in direct testimony, CLI-88-9 slip op. 5 fn.
3, the presumption attached to FEMA findings remains undisturbed.
Interveners' admitted contentions are directed toward l
. l various of FEMA's findings on the 1988 Shoreham exercise.2/
1 However, to the extent that the contentions or portions thereof are not addressed substantially, or are not addressed at all, in testimony, the FEMA findings are definitionally not rebutted and l
LILCO is entitled to a favorable determination.
This basis for exclusion of aspects of Interveners' contentions not adequately addressed in their testimony is discussed further in Part III, below.
- 2. Failure of Proof Sufficient to Rebut FEMA Findinas:
A showing sufficient to rebut a FEMA finding of adequacy in post-exercise litigation governed by CLI-88-9 and ALAB-903, and therefore sufficient to trigger hearings, must make out a crima facie case for a " fundamental flaw" in the area addressed.
The showing must be made in the direct testimony itself.
This is a higher standard than applies in " standard" licensing litigation, and reflects differences in structure and purposa between the two types of litigation. " Standard" licensing proceedings involve a first-time, potentially plenary look at issues; by contrast, cost-exercise proceedings, as made clear by the Commission in CLI-88-9, are highly focused, expedited, "second-look" proceedings involving plants that are typically 2/ The scope of the term " FEMA findings" is logically that of the entire range of FEMA expert appraisals, and not just of its bottom-line " findings and determinations."
See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP 59, 14 NRC 1211, 1466 fn.168.
. 5 ready to operate and emergency plans that have already been approved.2/
The structure of proceedings under CLI-88-9 is also much closer to that of conventional civil litigation, with Interveners filing their testimony first.
Interveners' direct testimony fails in certain respects to meet their burden of going forward: establishing a crima facie case supporting a " fundamental flaw" in the areas addressed.
To that extent, it is subject to a motion to dismiss, equivalent to a defendant's motion for judgment under Federal Rule of Civil Procedure '41(b) at the end of the plaintiff's direct case in conventional civil litigation, on the ground that'upon the facts and the law the plaintiff has shown no right to relief.
Interveners' burden is described in more detail in Part IV, below.
2/ This standard is not inconsistent with the decision of concern to the Board, Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), 16 NRC 1290, ALAB-698 (1982). ALAB-698 merely addresses the effect of the presumption attached to a FEMA finding, and does not address the nature or amount of proof required to offset it.
To the extent of any inconsistency, however, the portion of ALAB-698 of concern to the Board is distinguishable from and subordinate to more recent and relevant precedent. ALAB-698 was issued in 1982, before the 1984 UCS decision; thus the prospect of separate emergency exercise litigation had not yet even been contemplated.
All the more, it was decided before the need to refine and sharpen further the focus of the expedited, second-look norms of the UCS case had been recognized specifically as the result of experience in this docket by the Appeal Board in ALAB-903 and by the Commission itself in CLI-88-9. In short, ALAB-698 does not af fect the argument in this memorandum.
L______-__-___-
' e III.' Interveners' Testimony on Many Contentions Fails t
to Adduce Any Proof to Rebut FEMA Findinas A.
FEMA's Findinas Are Presumed Correct Under the Commission's. regulations, a FEMA finding constitutes a rebuttable presumption. 10 C.F.R. 5 50.47(a)(2);
l ggg also Lona Island Liahtina Co. (Shoreham Nuclear Power
]
Station, Unit 1), CLI-88-9, 28 NRC (1988), slip op. at 4, citina 10 C.F.R. 5 50.47 (a) (2). A/ " FEMA findings are therefore entitled to presumptive but not conclusive weight."
Lona Island Lichtina Co. (shoreham Nuclear Power Station, Unit 1), ALAB-903, 28 NRC 499, 507 (1988).
This has been construed to mean that "in the absence of contrary evidence, the FEMA finding carries the day. " Public Service Company of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-88-32, 1988 NRC LEXIS 101, 112 (December 30, 1988).
A licensing board may accept a FEMA position on 'aut issue if that issue is uncontested.
Carolina Power & Licht Co.
4/ The complete text of 10 C.F.R. 5 50.47(a) (2) is as follows:
The NRC will' base its finding on a review of the Federal Emergency Management Agency (FEMA) findings and determinations as to whether State and local emergency plans are adequate and whether there is reasonable assurance that they can be implemented, and on the NRC assessment as to whether the applicant's onsite emergency plans are adequate and whether there is reasonable assurance that they can be implemented. A FEMA finding will primarily be based on a review of the plans. Any other information already available to FEMA may be considered in assessing whether there is reasonable assurance that the plans can be implemented. In any NRC licensing proceeding, a FEMA finding will constitute i
a rebuttable presumption on questions of adequacy and implementation capability.
l l
l l
. (
(Shearon Harris Nuclear Power Plant), LBP-86-11, 23 NRC 294, 365 (1986); Southern California Edison Co.
(San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346 (1983).
Thus, a FEMA finding of adequacy of offsite emergency preparedness is tantamount to a crima facie satisfaction of NRC requirements. Metropolitan Edison Co. (Three Mile Island Nuclear l
Station, Unit No. 1), ALAB-698, 16 NRC 1290, 1298-99 (1982). If that crima facie satisfaction of NRC standards is not properly rebutted, then the NRC may make a determination of reasonable assurance and authorize the issuance of an operating license for the plant. Id2 However, "[t]he fact that a final FEMA finding is entitled to a rebuttable presumption does not convert that agency into a decisionmaker in Commission proceedings. The adjudicatory boards and the Commission are the decisionmakers, not the FEMA."
Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 378-79 (1983).
When the rebuttable presumption of a FEMA finding is present, "the proponent of a contention has the burden of going forward with evidence in support of that contention sufficient to rebut the presumption." Lona I9 land Lichtina Co. (Shoreham Nuclear E____ M
Power Station, Unit 1), CLI-88-9, 28 NRC (1988), slip op. at 6.E/
CLI-88-9 provides that "any contentions'for which testimony is not filed will be considered in default by virtue of the Presumption of 10 CFR S 50.47 (a) (2). "
Id. p.5 1 3. Given the complexity of Interveners' contentions, it is clear that, if merely referring to or supForting one small portion of a contention is sufficient to comply with CLI-88-9, its requirement that contentions be supported by sufficient direct testimony to rebut the FEMA finding of adequacy will have been gutted. Thus the only reasonable interpretation of CLI-88-9 is that any contention or portion thereof not supported by testimony is in default and ruling should be made in LILCo's favor.5/
E/
Cne licensing board has stated, "a rebuttable presumption dissolves in the face of reliable and probative evidence to the contrary." The Cincinnati Gas & Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit 1), LBP-82-68, 16 NRC 741, 749 (1982). Interveners' evidence must "be sufficient to require reasonable minds to inquire further."
Consumers Power Co.
(Midland Plant, Units 1 and 2), CLI-74-5, 7 AEC 19, 32 (1974).
Neither of these cases deals with cost-exercise litigation.
5/
LILCO and Interveners differ on the degree to which Interveners' direct testimony must address any contention or portion thereof to avoid default on it. LILCO's position, which it believes is the only fair reading of the intent of CLI-88-9, slip op. at 5 1 3, is that any contention or portion thereof not addressed by substantive direct testimony is defaulted by Interveners. Interveners' position, as conveyed to LILCO in correspondence, is that addressing any portion of a contention in direct testimony saves the entire contention from default.
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)
I l
. i Interveners are in default on any contention or subpart thereof for which they submitted no testimony. Id. p. 5 1 3.
Under the standard of proof for emergency plan litigation described above, it is also clear that Interveners' testimony is insufficient to rebut the presumption of plan adequacy established by FEMA's findings where the testimony contains no reliable, probative evidence contradicting the findings. This is true where Interveners' testimony has little or no evidentiary content, including instances where Interveners' testimony consists of mere cross-references to testimony on other admitted contentions or subparts, er assertions relating to contentions or subparts that were not admitted for litigation; contains argument or conclusory or speculative statements with little or no factual support; or fails to adduce facts about the exercise other than those set forth in FEMA's report and upon which FEMA found the plan adequate.
B.
Interveners' Testimony Fails to Rebut the PresumptiqD The chart attached to this brief (Attachment 1) sets forth the contentions and subparts thereof that should be dismissed because Interveners' testimony fails to adduce evidence to rebut 1
the presumption accorded FEMA's findings of no deficiencies under 10 C.F.R. 5 50.47 (a) (2). The first column lists the subpart of 1
each contention that should be dismissed. The second column contains numbered designations of the reasons why each contention subpart should be dismissed. These reasons, numbered below to i
1 t r
correspond with the numbers in the second column of the chart (Attachment 1), are as follows:
- 1..
Interveners have not cited the.subpart at all or have cited the subpart but have filed no testimony.on the subpart of the contention.
2.
The sole'suppor't for the s'ubpart of the contention is a-cross-reference to testimony on another admitted i
contention or subpart, or Interveners' testimony in j
fact relates to contentions or subparts that were not admitted for litigation.
3.
Interveners' testimony consists of argument, or conclusory or speculative statements with few or no supporting facts and thus, in effect, contains no reliable or probative evidence (i.e.,
few or no relevant facts or a lack of expert opinion based on relevant facts).
4.
Interveners' testimony cites no facts, or no facts of significance, as to events at the exercise beyond those set forth in FEMA's report; thus the testimony fails to rebut the presumption established by FEMA's findings of adequacy based on the facts in FEMA's report.
In some cases, more than one of these reasons apply. In a few cases (contention subparts 1.I, 1.0 and 13.D), Interveners have expressly withdrawn or abandoned their arguments.
]
l e-_-___-____-_-
1 i
i.,.
Most of the' designations of. reasons:for dismissing a contention subpart as set forth above and on Attachment.1 are straightforward and self-explanatory. Accordingly, LILCO addresses below only those contention subparts that warrant further elaboration.
l Contention 6 The Interveners testimony on Contention 6.B.8 is limited to a one-paragraph footnote which merely repeats the language of the Contention. Interveners fail to produce facts or argument in support of.this subpart. Egg Int.' Test. (Cont. 6) at 60 n.34.
The interveners' testimony on Contention 6.B'.9 mentions-this subpart in the same footnote as Contention 6.B.8, but does not even repeat the language of the Contention, much less provide facts in support.
Contention 18 Interveners have failed to carry their burden of going forward on Contention 18 in its entirety.
They admit as much with respect to Contention 18.G.
Interveners' testimony says that Interveners' witnesses "are not in a position to agree or disagree" with Contention 18.G. Int. Test. (Cont. 18.B, E, and G) at 46 line 10.
The County witnesses say they "cannot conclude, overall, that the RECS telephone system is unworkable or unreliable.
" Idz at 47 lines 2-4.
With respect to the other two parts of the contention, 18.B and 18.E, Interveners have also failed to carry their burden of
l l
! j going forward.
Interveners have for the most part ignored the 1988 Exercise and simply repeated, in many passages verbatim, i
their 1984 testimony on communications, Regensburg gt al., ff.
Tr. 6184.
In the few places where they have addressed the Exercise they have produced no " evidence" at all; they have merely recited what is already in the FEMA Post-Exercise Assessment and in the contention.
See Int. Test. (Cont. 18.B, E,
and G) at 25 lines 14-17, 30 lines 16-23, 35 lines 8-19, 42 lines 10-13, 45 lines 9-24.
They have not, in short, rebutted FEMA s findings, which are favorable to LILCO; they have singly cited selected facts from the FEMA Report.
Contention 20 Contention 20.A concerns how LERO interfaced with the governments during the Exercise. Contention 4.C.2, which was consolidated with Contention 20.A, allegedly gives an example of how LERO gave the governments incorrect information. That Contention says that on Day 2 LERO told New York State that it 4
did not expect any ingestion pathway problems. Interveners' testimony fails to provide facts to prove that LERO did indeed make that statement. " heir testimony consists of conclusory statements that the facts known at that time show that the statement was false. Additionally, Interveners simply cross-reference to testimony on Contentions 6 and 7.
See Int. Test.
(Cont. 20) at 68. In their testimony on Contentions 6 and 7, they
g N.
i do not support their allegation that LERO made the alleged statement to New York State. Interveners do provide factual arguments to support their claim that the statement, if made, was wrong. The fact that they fail to support this example with facts shows that contention 4.C.2 does not rebut the presumption with facts.
Interveners' testimony on Contention 20.D concerns communications among LERO groups having nothing to do with the EBS issuance and posting issues in the admitted bases, which are the admitted portions of Contentions 6 and 7 V and 7.F. The Board admitted Contention 20.D only to the exteat that it could be supported by the admitted parts of Contentions 6 and 7, which deal with the drafting, issuanco, and posting of EBS messages.
LBP-89-1, 29 NRC slip op. at 68 and n.114 (January 3, 1989). But Interveners' testimony on Contention 20.D talks about communications among staging area personnel, EOC and road crew personnel, Rumor Control personnel, and ENC personnel (alleged failure to update status boards). See Int. Test. (Cont. 20) at 124-26. In addition, it addresses communications with the control
- Cell, i.e., interface. Id at 126-27.
Then the testimony speculates that "the foregoing examples" are indicative of training deficiencies. Id. at 127-32.
Communications among field workers and staging area l
personnel, and updating ENC status boards, has nothing to do with I
the EBS problems alleged in Contentions 6 and 7.E and F.
The l
1 I
Rumor Control Contention (Contention 8) was specifically rejected I
as a litigable topic. LBP-89-1, slip op, at 42-43. Further, the interface training allegations in contention 20.A were specifically excluded from consideration under contention 20.D in the Board's January 25, 1989 Order accepting the parties' restated version of the admitted contentions.
In contention 20.G, Interveners allege that LERO Workers are 1
i i
not adequately trained in the areas of dosimetry, exposure
\\
control, KI, and understanding of radiation terminology. The Licensing Board has held that "the lack of adequate knowledge about personal radiation protection should not directly affect l
the public health and safety." LBP-88-2, 27 NRC 85, 208-09 (1988). Therefore, Contention 20.G does not allege a fundamental flaw in the LILCO Plan.
Alternatively, two ARCAs cited as bases for Contention 20.G should be dismissed. The Interveners cite nine ARCAs from the 1988 FEMA Report. Interveners have filed testimony on all of these ARCAs except two: ARCAs Reception-1 and Medical-1.
Therefore, Interveners have failed to meet their burden with regard to these two ARCAs.
IV.
Interveners' Testimony Fails to Establish Prima Facie, as Required by CLI-88-9 and ALAB-903, that the Exercise Revealed any Fundamental Flaws in the Shoreham offsite Emeroency Plan A finding of adequate preparedness under NRC regulations is based both on review of offsite emergency i
L___
. 'l
]
plans and on their demonstration in an exercise.
Typically the exercise is not held until after the plan has already been reviewed and oeen found adequate.2/
Emergency olans are subject to full-blown litigation before Atomic Safety and Licensing Boards.
Exercie.;g are also subject to litigation, but of a different nature. Since exercises typically are not held until a plan has received at least presumptive approval, they occur later in the licensing process, when a plant is ready to operate; and the plan examination implicit in an exercise is of a "second-look" variety designed to determine whether, notwithstanding a favorable review of a plan, there nevertheless lurk " fundamental flaws" undetected by the plan review.
As a result, although the Commission may not exclude litigation of exercise results from the licensing process to the extent exercises are deemed to yield information material to licensing, Union of Concerned Scientists v.
NRC, 735 F.2d 1437 (D.C. Cir.
2/ Sometimes that pre-exercise review has been conducted only by technical staffs under the aegis of FEMA, with NRC Staff participation on the Regional Assistance Committee performing the actual review. Sometimes, as is the case at Shoreham, the review by the RAC has been subjected to further testing by litigation of the plan's acceptability before an exercise is even held.
r!-
L i )
l 1984), cert, denied, 469 U.S.
1132 (1985), it may adapt post-exercise litigation to the special circumstances then obtaining.
Such proceedings are a "second look;"
l they properly do not involve plenary review of problems major and minor but are restricted to potential l
" fundamental flaws" remaining in a plan despite plan review. The plant is generally in operable status.
Interveners generally have higher knowledge of the plant and the plan than exists earlier in the process. As a result, exercise litigation is expected to be focused and may be expedited. UCS, suora; Carolina Power & Licht I
Cgt (Shearon Harris Nuclear Power Plant), CLI-86-24, 24 NRC 769, 777 & n.10 (1986).
Each of these attributes applies to Shoreham. The
(
plant is complete. The plan has been litigated at length and its feasibility approved. Interveners have great knowledge of the plant, plan and specific exercise. Time is of the essence, especially since the 1998 exercise is the second one for Shoreham.
And the Commission has, in fact, tailored its procedures applicable to litigation of the 1988 Shoreham exercise. CLI-88-9, 28 NRC (1988).
That adaptation accounts not only for the generic attributes noted above, but also for docket-specific circumstances, including the history of the
)
I.
Shoreham proceeding, the knowledge of Interveners,E/ and the need for expedition to avoid a "potentially endless i
loop of litigation." CLI-88-9, p.4.
These adaptations include specific scheduling i
I measuresE/, as well as various modifications to the J
structure of " typical" Commission process. The most important of these modifications are the following:
1.
Interveners have the burden of going forward, not only in the framing of contentions but in the filing of direct testimony prior to the utility and the NRC/ FEMA. CLI-88-9. slip op, at 5, 11 3-5.
[By contrast, I
in " standard" NRC proceedings including emergency plan litigation, the practice is for parties file simultaneously; occasionally, the applicant is required to file first.]
2.
Interveners must set out their entire prima facie case in their direct testimony, since any issues not addressed in direct testimony are defaulted.1S/ Id.
at 5 1 3.
[In " standard" proceedings, Interveners are E/
See letter, Irwin to Atomic Safety and Licensing Board, with attachments, December 30, 1988 for itemization of document discovery by LILCO.
E/ The Commission has set, in advance, specific timetables for the filing of testimony, the length of hearings, and the submission of post-hearing #ay.
documents, as well as the outer limits of acceptable de1 1
permitted to proceed, entirely if they wish, by vross-examination.]
These structural modifications make the format of exercise litigation much more like that of conventional civil litigation than like that of conventional licensing proceedings. Interveners must satisfy their entire burden, at least on a plima facie basis, in their direct testimony. A motion for judgment by the defendant is appropriate in trials without a jury in conventional federal civil litigation under Federal Rule of Civil Procedure 41(b) upon the completion of plaintiff's case if, as a matter of law, plaintiff's case has failed to satisfy its burden as a legal matter. Rule 41(b)11/ reads in pertinent part:
After the plaintiff, in an action tried by the court without a jury, has completed the presentation of evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a diekvl on the ground that upon the facts and the law the plaintiff has shown no right to relief. 'Ihe court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.... Unless the court in its order for dismissal otherwise specifies, a dismissal urder this subdivision... operates as an adjudication upon the merits.
S e e e cr., Anslerson v.
Liberty Lobby. Inc., 477 U.S.
242 (1986);
Hersch v. United States, 719 F.2d 873 (6th Cir. 1983); Weissincer W Rule 41(b) is to be distinguished from the federal rule on summary judgment, Rule 56.
Similarly, the motion here is not ene for summary disposition, which is not permitted by CLI-88-9.
1
- v. United States, 423 F.2d 795 (5th Cir. 1970); Scfeway Stores v.
Fannan, 308 F.2d 94 (9th Cir. 1962).
Similarly, under CLI-88-9 a motion to dismiss Interveners' case is appropriate following the filing of their testimony and before hearing, if and to the extent that testimony fails, taken at face value, to meet Interveners' burden. It makes no sense to proceed to hearing on an issue where Interveners' direct case --
which under CLI-88-9 must be their vehicle to establish their prima facie case -- is simply insufficient, even if uncontradicted, to carry their burden.
l What is that burden?
Interveners can prevail in exercise litigation only by establishing that one or more " fundamental flaws" exist in an emergency plan.12/
Thus where FEMA has made a finding of reasonable assurance with respect to emergency W
preparedness based upon an exercise, only a case sufficient, if not rebutted, to establish by itself the existence of a
" fundamental flaw" can offset the presumption of adequacy attached to the FEMA finding. Thus, at least where FEMA has 12/ As noted above, under ALAB-903, which defined the term in the context of litigation over the 1986 Shoreham exercise, a
" fundamental flaw" has two principal dimensions: (1) failure of an essential element of the emergency plan, as measured by the 16 basic emergency planning standards in 10 CFR S 50.47(b) and Appendix E thereto, and (2) remedy only through significant revision of the emergency plan. ALAB-903, 28 NRC 499, 505 (1988).
Exercise-based findings of lesser defects in an emergency plan --
"ARCAs" (Areas Required for Corrective Action) or "ARFIs" (Areas Recommended for Improvement) will not prevent issuance or retention of a license, though they may result in required remedial activity before the next biennial exercise, u__
concluded that an exercise reveals no deficiencies in an emergency plan, it follows that the only way for_ Interveners to overcome the'resulting presumption of adequacy is to make out a orima facie case in their direct testimony on any given issue sufficient, unless rebutted, to establish the existence of a1 fundamental flaw with respect to that issue.
Interveners' prefiled testimony completely fails.to meet
-that burden.
There has been no showing whatsoever of any fundamental flaw in any of the evidence adduced by Interveners.
At best, they have shown only isolated, correctable problems in a
.few discrete areas.
Interveners have.thus failed'to carry their burdon of going forward to rebut FEMA's findings that the plan'is adequate.
The Board, like a court under FRCP 41(b), acting as.
the~ trier of fact, should render an immediate merits' ruling.in LILCO's favor rather than waste the agency's and the parties' resources litigating further a facially insufficient case.
LILCO readily acknowledges that the argument outlined above rests on reasoning based on the special structure of this proceeding and its similarities to conventional civil litigation; on general propositions outlined in the UCs case and its progeny;~
I and on specific orders in the proceedings on the 1986 and 1988 Shoreham exercises. There is little case law outside the Shoreham proceeding going to the issue of what must be established by Interveners in their direct case on an exercise; there have been
no heavily litigated emergency planning exercises, to the present, other than the 1986 Shoreham exercise.
l l
ALAB-698, looked at literally, states nothing other than the j
truism that a rebuttable presumption such as that attaching to a
]
FEMA finding is not dispositive in litigation: it can be rebutted. The case does not deal with the issue of what must be shown on the merits to rebut the finding. In any event, the case involves "first-look" general emergency plan litigation. To the extent, thus, that it may be thought to require of Interver;rs' direct testimony a less demanding quantum of proof than crima facie establishment of a " fundamental flaw," the differences in purpose and resulting procedural structures between " plan" and
" exercise" litigation produce differences in threshold acceptability of Interveners' testimony as a trigger for hearings. In short, ALAB-698 does not cut into the otherwise plain implications of CLI-88-9 and ALAB-903.
CONCLUSION The contentions or portions thereof referred to in Part III should be dismissed since the testimony (if any) adduced in their support does not, in fact, support them.
Interveners' entire case should be dismissed for the reason asserted in Part IV, namely, that it fails to meet Interveners' burden of going
l forward with evidence sufficient to create a crima facie showing lk of a fundamental flaw in the Shoreham offsite emergency plan.
I l
Respectfully s
- mitted, Donald P.
Irwin K.
Dennis Sisk Hunton & Williams 707 East Main Street P.O.
Box 1535 Richmond, Virginia 23212 DATED:
February 24, 1989
o I
l l
l Contentions and Subparts That Should be Dismissed for Interveners' Failure to Adduce Evidence to Rebut l
the Presumption Accorded FEMA's Findings Under 10 C.F.R. S 50.47(a)(2) i Contention Grounds for Dismissal 1.D/14.F 1
1.G 1
1.I/13.D Withdrawn by Interveners */
1.0 Withdrawn by Interveners */
1.P 1
1.Q 1
6.B.8 1
6.B.9 1
18.B/18.E 2,
3, 4 18.G 1
20.A/4.C.2 2,
3 20.C 4
20 D 2
20.G 4
ARCA Reception-1 1
ARCA Medical-1 1
- /
Letter, Michael S. Miller to David S. Harlow (February 7, 1989) (Attachment 2).
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.Attachmsnt 2 I
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MICHAEL S. MILLER
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,l February 7, 1989 I
BY TELECOPY David S. Harlow, Esq.
i Hunton & Williams
]
707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 Re:_-Testimony on Contention 1
Dear David:
This responds to your letter of February 6, which seeks the agreement of Suffolk County and New York State that particular subparts of Contention 1 will not be subject to. litigation in the upcoming exercise hearing.
This response reflects the views of.
Suffolk County and New York State.
It is the Governments' view that LILCO is wrong in its assumption that, because the Contention'1 testimony submitted by-the Governments on February 2 does not address certain of the 13
~ specific subparts of Contention 1. admitted for litigation by the Licensing Board in LBP-89-1, the Governments have defaulted on 3
those subparts under CLI-88-9.
Specifically, LILCO believes that subparts 1.D, 14.F, 1.G, 1.I, 13.D, 1.0, 1.P and 1.Q should not be subject to litigation.
The Governments disagree with LILCO's position for several reasons.
First, putting to one side LILCO's characterization of 1
the subparts'at issue and the testimony submitted by the l
Governments concerning those subparts, it is the Governments' L
view that CLI-88-9's requirement that the Governments support any i
matters they wish'to contest with direct testimony does not apply to the Governments' scope of the exercise contention, nor the testimony supporting that contention.
Further, even if CLI-88-9
]
is considered applicable to Contention l's issues, the 1'
Commission's Order can only be read to require the Governments to file testimony on any contention admitted for litigation by the Licensing Board, if the default sanction is to be avoided.
See CLI-88-9, slip op, at 5.
The Governments, of course, have filed testimony on Contention 1; nothing in CLI-88-9 precludes the l:
3 1
-t t
KIRKPATRICK & LOCKHART David S.-Harlow, Esq.
February 7, 1989
'Page 2 Governments-from proceeding on certain subparts of that contention by cross examination.
Second, as LILCO well knows, thel Governments have, sought reconsideration of CLI-88-9 by the Commission.
See Governments' E
Motion for Reconsideration of CLI-88-9 (Dec.
9, 1988).
Given the fundamentally prejudicial nature of.CLI-88-9 to the Governments' right.to a fair opportunity to contest the results.of the exercise, the Governments anticipate that the Commission's Order
.will be modified, at least in certain respects.
In any event, until-such time as the Commission rules on their pending motion, the Governments cannot agree to LILCO's request that the eight subparts of Contention 1 listed above be abandoned.
Third, in seeking an extension of the deadline for filing their testimony (see1 Governments' Motion for Extension.of Time to File-Testimony-(Jan. 23, 1989)), the Governments made clear-that they would not be able to meet the February 2 filing deadline without some extension of.the time permitted to them by CLI-88-9.-
Notwithstanding the many reasons for an extension. set forth by the Governments, the Licensing Board denied this request.
If the Governments were unable to present full and complete testimony on all issues, LILCO was on notice that this would be the case.
In sum, the Governments do not agree that the eight subparts to Contention 1 listed above and in your February 6 letter have been abandoned; that they will not be subject to litigation in the upcoming _ exercise hearing; and that, as a consequence, LILCO need not file testimony on those eight subparts.
The Governments do agree, however, to abandon three of the subparts.at issue.
These subparts -- specifically, subparts 1.I, 13.0 and 1.0 -- are abandoned, or withdrawn, by the Governments not for the reasons set forth in your letter, but rather becauss the Governments' witnesses are not in a position to agree or disagree on the subparts' merits, based upon the limited data available to them to reach their opinions.
The Governments' lack of support for these three subparts should not be construed to mean that the Governments concede that the particular aspects of the exercise raised by the subparts were adequate in scope or performance Rather, the Governments are simply unable, on the basis of the data available to them, to provide additional bases in support of these Contention 1 subparts.
They are thereby withdrawn.
I hope that this response has been helpful to you.
In closing, I add only the following.
LILCO has indicated that it may seek a ruling in limine from the Board "along the lines
- L,.
KmKPATRICK &, LOCKHART David S. Harlow, Esq.
7 February 7, 1989-
.Page 3 described in (your February 6) letter."
Perhaps, rather than filing such a motion, LILCO should prepare and put in its testimony.
Upon receipt of such testimony, the Governments will
.promptly review it and, should LILCO desire, the Governments will agree to renew. discussions at that time regarding whether the number of issues which need to be litigated can be reduced.
Please do not hesitate to contact me if you should have any questions.
Sincerely, Michael S. Miller cc:
Edwin J.
Reis, Esq.
William R. Cumming, Esq.
Richard J.
Zahnleuter, Esq.
Stephen B.
Latham, Esq.
s
_g6-5 I ffch LILCO, February 24,1989 r
CERTIFIC ATE OF SERVICE 89 FEB 27 P2 :00 l
In the Matter of LONG IST.AND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) On t Docket No. 50-322-OL-5R 00ChLi I hereby certify that copies of LONG ISLAND LIGHTING COMP A NY'S RESPONSE TO FEBRUARY 6 ORDER CONCERNING EFFECT OF FEMA FINDINGS, AND MOTION TO DISMISS CONTENTIONS ON BASIS OF ALAB-903 were served this date upon the following by Federal Express as indicated by an asterisk, or by first-class mail, postage prepaid.
John H. Frye, III, Chairman
- Edwin J. Reis, Esq.
- Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flint North East-West Towers, Fourth Floor 11555 Rockville Pike 4350 East-West Hwy.
Rockville, MD 20852 Bethesda, MD 20814 Lawrence Coe Lanpher, Esq.
- Dr. Oscar H. Paris
- Karla J. Letsche, Esq.
Atomic Safety and Licensing Board Kirkpatrick & Lockhart U.S. Nuclear Regulatory Commission South Lobby - 9th Floor East-West Towers, Fourth Floor 1800 M Street, N.W.
4350 East-West Hwy.
Washington, DC 20036-5891 Bethesda, MD 20814 Fabian G. Palomino, Esq.
- Mr. Frederick J. Shon
- Richard J. Zahnleuter, Esq.
Atomic Safety and Licensing Board Special Counsel to the Governor U.S. Nuclear Regulatory Commission Executive Chamber, Room 229 East-West Towers, Fourth Floor State Capitol 4350 East-West Hwy.
Albany, NY 12224 Bethesda, MD 20814 Alfred L. Nardelli, Esq.
Secretary of the Commission Assistant Attorney General Attention Docketing and Service 120 Broadway Section Room 3-118 U.S. Nuclear Regulatory Commission New York, NY 10271 Washington, DC 20555 George W. Watson, Esq.
- Atomic Safety and Licensing William R. Cumming, Esq.
Appeal Board Panel Federal Emergency Management U.S. Nuclear Regulatory Commission Agency Washington, DC 20555 500 C Street S.W., Room 840 Washington, DC 20472 Adjudicatory File Atomic Safety and Licensing Mr. Philip McIntire Board Panel Docket Federal Emergency Management U.S. Nuclear Regulatory Commission Agency Washington, DC 20555 26 Federal Plaza New York, NY 10278
.,. :p.
Mr. Jay Dunideberger Evan A. Davis, Esq.
New York State Energy Office Counsel to the Governor Agency Building 2- '
Executive Chamber
' Empire State Plaza -
State Capitol-Albany, NY 12223 Albany, NY 12224 Stephen B. Latham,' Esq. * '
E. Thomas Boyle, Esq.
Twomey, Latham & Shea Suffolk County Attorney 1.
33 West Second Street Building 158 North County Complex P.O. Box 298 Veterans Memorial Highway Riverhead, NY 11901 Hauppauge, NY 11788 Jonathan D. Feinberg, Esq.
Dr. Monroe Schneider New York State Department of North Shore Committee Public Service, Staff Counsel P.O. Box 231 Three Rockefeller Plaza Wading River, NY 1* 792 Albany, NY 12223 Ms.' Nora Bredes Executive Coordinator Shoreham Opponents' Coalition 195 East Main Street f
Smith *own, NY 11787 i
Q}0 i _.J Y.
A D6nald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, V'rginia 23212 DATED: February 24,1989 l
l i
1 i