ML20235V649
| ML20235V649 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/01/1989 |
| From: | Bachmann R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20235V611 | List: |
| References | |
| OL-5, NUDOCS 8903100267 | |
| Download: ML20235V649 (7) | |
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03/01/89
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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 89 HM -2 P1 :58
- OFn, BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
% Ci ], p ni In the Matter of
)
LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL-5R
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
i Unit 1)
)
NRC STAFF VIEWS ON THE EFFECT TO BE GIVEN TO THE REBUTTABLE PRESUMPTION OF FEMA FINDINGS I. INTRODUCTION InitsMemorandumandOrder(EstablishingaHearingSchedule) dated February 6, 1989, the Licensing Board directed LILCO and the Staff "to submit their written views of the effect to be given to the presumption which attaches to the FEMA findings...".
February 6 Order at 3.
The Staff hereby submits its views on the presumption.
II. BACKGROUND The source of the Licensing Board's' concern is the interpretation of part of 10 C.F.R. 9 50.47, 10C.F.R.550.47(a)(1) states:
Except as provided in paragraph (d) of this section [ operation at 5% or less of full powerl, no operating license for a nuclear power reactor will be issued unless a finding is made by NRC that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.
10 C.F.R. 9 50.47(a)(2) further provides:
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 in'RBBM838$ga 0
l 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 I
proceeding, a FEMA finding will constitute a rebuttable presumption on questions of adequacy and implementation c6pability.
The Licensing Board expressed concern that there was an " unsettled state of the law concerning the effect of the presumption which attaches to the FEMA finding." February 6 Order at 2.
The Licensing Board referred to the Commission's language in CLI-88-9 1/ that the Interveners have the burden of going forward with evidence to rebut the presumption created by the FEMA findings, and the statement by the Appeal Board in ALAB-903 (28 NRC 499 (1988)) that a party trying to overturn a FEMA finding has a greater task than if there were no presumption. Id. at 1-2.
The Licensing Board contrasted these statements with the " holding" by the Appeal Board in Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-698, 16 NRC 1290, 1298-99 (1982), "that a FEMA finding is the equivalent of a Regulatory Guide and is to be treated simply as evidence of compliance with regulatory requirements." M.at2.
Because of this apparent inconsistency, the Licensing Board found that "the precise effect to be accorded the FEMA findings is not clear." M.
1/
The Commission stated:
While the proponent of a contention has the burden of going forward with evidence in support of that contention sufficient to rebut the presumption created by the FEMA findings on the June 1988 emergency exercise, once that burden is met LILC0 bears the ultimate burden of persuasion.
CLI-88-9, 28 NRC (Dec. 1, 1988), slip op. at 6.
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III. DISCUSSION The Commission's statements in CLI-88-9, and the Appeal Board's statement in ALAB-903, are controlling as they are later than ALAB-698 and moreover, the Commission's interpretation of regulations are binding.
Therefore, to the extent there is any conflict between the authorities, ALAB-698 should not be followed.
Further, with regard to the Appeal Board's " holding" in ALAB-698 that "a FEMA finding is the equivalent of a Regulatory Guide" (February 6 Order at 2), there is no inconsistency with later NRC case law or the J
Commission's directions in CLI-88-9. The Appeal Board was ruling on whether three interpretive documents required the Licensing Board to direct the redistribution of TLDs.
16 NRC at 1296.
In that narrow context the Appeal Board stated, "We agree that documents such as the FEMA l
findings and determinations, NUREG-0654, and FEMA-REP-2, somewhat like Regulatory Guides, do not rise to the level of regulatory requirements."
l Id_. at 1298. Any other conclusion by the Appeal Board would be contrary to the NRC's responsibility to make the ultimate finding of reasonable 4
assurance pursuant to 10 C.F.R. 6 50.47(a)(1). See ALAB-900, 28 NRC 275, 292. The Appeal Board's statement does not deal with, and is inapposite to, the question of the effect of the rebuttable presumption on FEMA
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findings presented in testimony at a hearing.
The Appeal Board in ALAB 648 also addressed the effect of the rebuttable presumption in the paragraph preceding the abovequoted sentence. The Appeal Board summarized the various rulings made by the Licensing Board, including the ruling "that whatever presumptive weight the FEMA findings and determinations are required to be given under l
Commission regulations dissolved during the course of the hearings in
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light of the evidence actually introduced." 16 NRC at 1298. The Appeal Board then concluded that the Licensing Board "did not accord the FEMA findings and determinations any weight beyond that to which the testimony would be entitled by virtue of the expertise of the witnesses and the bases presented for their views" and affirmed the Licensing Board. Id. No indication was given by the Appeal Board of the quanta or reliability of evidence necessary to overcome the regulatory presumption.
I Subsequent to ALAB-698, other licensing boards have commented further on the effect of the rebuttable presumption.
"Such presumptions can have the effect of deciding a question only in the absence of persuasive contrary evidence." Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-39, 15 NRC 1163, 1213 (1982)
(emphasis added). Moreover, "a FEMA finding favorable to the Applicants... could have resolved... contentions in the Applicants' favor, in the absence of substantial evidence to the contrary."
I_d,.
In citing the Three Mile Island Licensing Board decision, the Zimmer
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Licensing Board noted that "a rebuttable presumption dissolves in the' face of reliable and probative evidence to the contrary."
Cincinnati Gas and Electric Co.
(Wm. H. Zimmer Nuclear Power Station, Unit 1), LBP-82-68, 16 NRC 741, 746 n.2 (1982).
IV. CONCLUSION A FEMA finding is controlling in the absence of persuasive and substantial evidence. However, if such evidence exists, the issue will be decidedbasedonweighingtheevidenceoftheparties.El Respectfully submitted, m
7 Richard G. Bachmann Counsel for NRC Staff Dated at Rockville, Maryland this 1st day of Mar::h 1989
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To the extent that Interveners have not filed testimony which substantively addresses a contention or a part of a contention, the Staff believes Interveners have not met their burden of going forward.
Pursuant to CLI-88-9, such contention or part of a contention should now be dismissed. See e.g., Contentions 1.D.
14.F. 1.G, 1.P 1.Q, 18.G.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of gg LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-0L-5R *
(ShorehamNuclearPowerStation,
)
Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF VIEWS ON THE EFFECT TO BE GIVEN TO THE REBUTTABLE PRESUMPTION OF FEMA FINDINGS AND TESTIMONY OF FALK KANTOR, EDWARD M. P000LAK, JR. AND ROSEMARY T. H0GAN OF THE NRC STAFF ON THE SCOPE OF THE EXERCISE" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, or express mail as indicated by double asterisk, this 1st day of March 1989.
John H. Frye III, Chairman
- Joel Blau, Esq.
Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12224 Oscar H. Paris
- F6bian G. Palomino, Esq.**
Administrative Judge Richard Zahleuter Atomic Safety and Licensing Board Special Counsel to the Governor U.S. Nuclear Regulatory Commission Executive Chamber Washington, DC 20555 State Capitol Albany, NY 12224 Frederick J. Shon*
Administrative Judge Jonathan D. Feinberg, Esq.
Atomic Safety and Licensing Board New York State Department of U.S. Nuclear Regulatory Commission Public Service Washington, DC 20555 Three Empire State Plaza Albany, NY 12223 Philip McIntire Federal Emergency Management W. Taylor Reveley, III, Esq.**
l Agency Donald P. Irwin, Esq.
26 Federal Plaza Hunton & Williams Room 1349 707 East Main Street New York, NY 10278 P.O. Box 1535 Richmond, VA 23212 Barbara Newman, Director Environmental Health Coalition C. K. Mallory, III, Esq.
for Safe Living Hunton & Williams Box 944 2000 Pennsylvania Ave., N.W.
Huntington, NY 11743 Suite 9000 Washington, DC 20006
L...,
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Stephen B, Latham, Esq.**
Dr. Monroe Schneider Twomey, Latham & Shea North Shore Committee Attorneys at Law P.O. Box 231 33 West Second Street Wading River, NY 11792 Riverhead, NY 11901 Ms. Nora Bredes Martin Bradley Ashare, Esq.
Shoreham Opponents Coalition Suffolk County Attorney 195 East Main Street H. Lee Dennison Building Smithtown, NY 11787 Veteran's Memorial Highway Hauppauge, NY 11788 William R. Cumming, Esq.**
l Office of General Counsel Anthony F. Earley, Jr.
Federal Emergency Management i
General Counsel Agency Long Island Lighting Company 500 C Street, SW 175 East Old County Road Washington, DC 20472 Hicksville, NY 11801 Atomic Safety and Licensing Appeal Dr. Robert Hoffman Panel (5)*
Long Island Coalition for Safe U.S. Nuclear Regulatory Commission Living Washington, DC 20555 P.O. Box 944 Huntington, NY 11743 Atomic Safety and Licensing Board 1
Panel (1)*
Alfred L. Nardelli, Esq.
U.S. Nuclear Regulatory Commission New York State Dept. of Law Washington, DC 20555 120 Broadway, Room 3-118 New York, NY 10271 Docketing and Service Section*
Office of the Secretary Herbert H. Brown, Esq.**
U.S. Nuclear Regulatory Commission Lawrence Coe Lanpher, Esq.
Washington, DC 20555 Karla J. Letsche, Esq.
Kirkpatrick & Lockhart South Lobby - 9th Floor 1800 M Street, NW Washington, DC 20036-5891 Jay Dunkleberger New York State Energy Office Agency Building 2 Empire State Plaza Albany, NY 12223
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Richard G. Bachmann Counsel for NRC Staff
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