ML20236J264
| ML20236J264 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 08/03/1987 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20236J160 | List: |
| References | |
| OL-5, NUDOCS 8708060114 | |
| Download: ML20236J264 (38) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION before the Atomic Safety and Licensiru Board In the Matter of
)
)
' LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-5
) (EP Exercise)
. (Shoreham Nuclear Power Station,.
)
Unit 1).
)
_ LIT.COfS BRIEF ON CONTENTION EX 19 i
Donald P. Irwin Lee B. Zeugin Kathy E. B. McCleskey Counsel for Long Island Lighting Company
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Huaton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 6
Atgust 3,1987 l
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8708060114 870803 l
PDR ADOCK 05000322 i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
Before the Atomic Safety and Licensing Board 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)
)
LILCO'S BRIEF ON CONTENTION EX 19 Donald P. Irwin Lee B. Zeugin Kathy E. B. McCleskey Counsel for Long Island Lighting Company
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l Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virgirda 23212 h
August 3,1987
____w.-_._
v LILCO, August 3,1987 i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1
Before the Atomic Safety and Licensing Board
'j In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S BRIEF ON CONTENTION EX 19 Introduction Interveners' Contention EX 19 asserts that " FEMA's inability to reach a reason-able assurance finding in LILCO's favor regarding [the Shoreham Offsite Radiological Emergency Response] Plan"in the February 13,1986 exercise " demonstrated" a funda-mental flaw in that Plan.1 The contention notes that two FEMA officials had indi-cated that the agency would not be able to reach an ultimate, or bottom-line finding on the Exercise -(one of them, apparently, on the basis that the Plan's actual imple-mentation would require state and local government participation, which had been lacking in the Exercise). From this the contention infers that the Exercise findings were "so limited" as to preclude FEMA from making a reasonable assurance finding on the Exercise, and that the NRC is therefore prevented from reaching a finding of rea-sonable assurance on the general issue of emergency planning for Shoreham under its own repr.ations.
1/
The text of Contention 19 is Attachment 6 hereto.
q.
Contention EX 19 deper_ds, in essence, on one basic fact: that state and local governments did not participate in the February I?,1986 offsite emergency prepared-ness Exercise for Long Island Lighting Company's Shoreham Nuclear Power Station.
Because of this fact, the Federal Emergency Management Agency (FEMAi abstained from reaching any overall, or " bottom-line." finding regarding the that Exercise. From l
FEMA's abstention on this point (which had been agreed upon by NRC and FEMA prior l
to the Exercise), Interveners argue that the NRC cannot, itself, reach those conclusions reJative to emergency preparedness at the Shoreham plant which are necessary to au-thorize LILCO to operate Shoreham at above 5% of rated power. The contention is in-correct, as is demonstrated below.
The logic of Contention EX 19 is not uniquely clear. Three principal possibilities present themselves. First, the contention may be construed to assert that the absence of state and local participation in an exercise, by itself and without more, is legally dis-positive of the adequacy of the exercise. Second, the contention can be interpreted to mean that FEMA's abstention from drawing an affirmative ultimate finding about the Shoreham Exercise is the equivalent of a negative finding, and that the NRC is legally precluded from reaching a contrary (i.e., positive) conclusion about either the Exercise or emergency preparedness generally. Third, the contention may be interpreted to as-sert that the overalllimitations on the scope of the Exercise resulting from the absence of state and local participation pennit, on the facts, only a record too thin to furnish a basis for reaching the kind of ultimate judgmeret on the exercise necessary to sustain a licensing conclusion.
No matter how construed, Contention EX 19 is wrong. Given either the first in-terpretation or the second, it is wrong as a matter of law since advance commitments of state and local participation are not a legal prerequisite to emergency planning for nuclear plants, and s.ince FEMNs findings (whatever their degree of finality) on offsite
_ _ - _ _ _ _ f emergency planning inform but do not govern the NRC's decision-making process. Put another way,if either the first or second interpretation of the contention is correct the NRC could never conclude that an exercise conducted without state or local participa-tion contributes adequately to a finding of overall reasonable assurance on offsite emergency preparedness,E and the Exercise would have been definitionally an exercise in futility. This clearly cannot have been intended by the Commission. If, under the third interpretation, the contentiot. merely recapitulates the f actual assertions of in-sufficient demonstrations of readiness inherent in all other contentions, it is merely cu-mulative of them. For these reasons, as shown more fully below, the contention should be rejected.
Statement of Facts The prccess of planning the February 13,1986 Exercise for the Shoreham Nucle-l ar Power Statior, began on June 4,1985 with a memorandum from Samuel J. Chilk, Sec-retary to the Nuclear Regulatory Commission, to William J. Dircks, Executive Director for Operations (Attachment I hereto). In that memorandum, Mr.. Chilk conveyed the 1
instructions of the Commission that Mr. Dircks undertake discussions with FEMA to schedule "as full an exercise of the LlLCO plan as is feasible and lawful at the present l
1 time." While recognizing that New York State court decisions might constrain the Ex-crcise so that it "may not satisfy all of the requirements of NRC's regulations," the Commission expressed no opinion on the likelihood that the Exercise would prove either 2/
The contention seems to suggest that a finding of " reasonable assurance" based on the Exercise, separate and distinct from the overall finding of " reasonable assur-ance" based on a review of emergency plans, is required. This is not correct: the Com-mission makes only one " reasonable assurance" finding on the adequacy of emergency response preparedness, and in that process the exercise serves merely as a cross-check, or additional dimension of inquiry, to ensure that fundamental flaws do not lurk beneath the surface of otherwise apparently acceptable emergency plans.
, adequate or inadequate in that regard, and felt that it would yield " meaningful results" even if all normal requirements were not satisfied. The memorandum reads in perti-j nent part as follows:
The Commission does not disagree with the view that an ex-ercise of the LILCO plan could yield meaningful results, even I
1 though such an exercise may not satisfy all of the require-ments of NRC's regulations. It could, as a minimum, identify the impact of the limitations of LILCO's plan when executed under the state and county restrictions. Although the Com-mission is aware that because of the recent court decision a full exercise of the LILCO emergency plan may not be possi-ble, the staff should request that FEMA schedule as full an exercise of the LILCO plan as is feasible and lawful at the present time.
The NRC Staff transmitted the Commission's request to FEMA by letter from Edward L. Jordan to Richard W. Krimm dated June 20, 1985 and the same day notified the Commission of that fact by memo from Mr. Dircks (collectively, Attachment 2 hereto). The Staff's request repeated the terms of the Commission's June 4 memoran-dum, stating that it sees no reason why the licensee (i.e., LILCO) should not be j
allowed to exercise those parts of the plan which may be le-gally exercised. Further, the Commission indicated that it does not disagree with the view that an exercise of the LILCO plan could yield meaningful results, even though such an exer-cise may not satisfy all of the requirements.of NRC's regula-tions. The exercise could, as a minimum, identify the impact of the limitations of LILCO's plan when executed under the state and county restrictions.
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The Staff also suggested that in the exercise FEMA emphasize evaluation of emergency preparedness within the plume exposure (10 mile) EPZ.
FEMA responded to the NRC on October 29, 1985 by letter from Samuel W.
Speck to William J. Dircks (Attachment 3 hereto). Noting that the unwillingness of l
state and local governments to participate in the Exercise would place "special parameters" on it and make it " dramatically different than is typical at other sites in New York," FEMA felt that it would not be able to draw an ultimate finding of
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. reasonable assurance on its basis. Nevertheless, FEMA clearly acknowledged that the ultimate determination of the value of the exercise for licensing purposes was a matter within the province of the NRC, not FEMA, and that the NRC might find the exercise sufficient to furnish a basis for making predictive licensing findings:
Any exercise without participation by State and local govern-ments would not allow us sufficient demonstration to reach a finding of reasonable assurance. This conclusion is based on the current legal decision with respect to utility authority to perform civil emergency functions. However, that does not preclude the conduct of an exercise that would provide an in-dication to the Nuclear Regulatory Commission (NRC) as to utility onsite and offsite emergency capabilities. We believe such a report would have value in decisions to continue the li-censing process or possibly provide a basis on which the NRC could make predictive findings. Obviously, the value of sdch an exercise in the licensing process is a determination which can only be made by the NRC.
FEMA also suggested two potential scopes of exercise. Under " Option 1," the ex-ercise would have a narrow scope that would " set aside all functions and exercise objec-tives related to state and local participation, limiting it solely to LILCO functions."
FEMA believed that the usefulness of such an exercise would "seem very limited."
FEMA also noted that such an option would not permit addressing questions such as those raised by the NRC Appeal Board about ten days earlier in the portion of ALAB-818 dealing with the realism argument.W 3/
On October 18, 1985 the Appeal Board had issued ALAB-818,22 NRC 651, which mviewed and affirmed the Atomic Safety and Licensing Board's determinations on legal authority issues. On pages 35-39 of the slipsheet version of that decision, 22 NRC at 673-76, the Appeal Board rejected the realism argument, largely on the basis that the Appeal Board believed that advance demonstration was required of the capacity to co-ordinate a utility plan with the moment-of-truth good faith efforts of government offi-cials. The ability of an exercise to demonstrate this type of response was the subject of FEMA's observation about Option 2. The Commission subsequently reversed the Appeal Board's rejection of the realism argument in CLI-86-13,24 NRC 22 (1986).
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. _ - _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _. Under Option 2, by contrast, the exercise "would include all functions and nor-mal exercise objectives." Federal exercise controllers would simulate the roles of state i
and local personnel in the event they were not willing to participate. Thus this option, in addition to testing the overall technical proficiency of LERO, would " test the utill-ty's ability to respond to ad hoc participation on the part of state and local govern-ments."
The letter continued:
The ultimate purpose of an exercise is to support a finding by FEMA for use by the NRC in their licensing process. As we mentioned above, neither of these options would allow a find-ing by FEMA on offsite preparedness. However, we recognize that Shoreham is in no way typical and that in the past in ex-ercising its adjudicatory powers the Commission and the vari-ous Atomic Safety and Licensing Boards have reached predie-tive findings.
Mr. Speck forwarded a copy of his October 29 letter the same day to Congress-man Markey, then the chairman of a subcommittee with jurisdiction of nuclear matters (Attachment 4). In that letter, af ter describing the gist of his letter to Mr. Dircks, Mr. Speck states unequivocally:
We [ FEMA] feel strongly that the ultimate value of such F.n exercise [as that being planned for Shoreham] must be deter-mined by the [ Nuclear Regulatory] Commission.
Arrangements for the basic parameters of the exercise were completed by Mr. Dircks' November 12 reply to Mr. Speck (Attachment 5), requesting that FEMA conduct an " Option 2" - i.e., broad - exercise "incluo[ing) all functions and normal exercise objectives, recognizing that some offsite response roles may be simulated. We believe that such an exercise would be useful in the licensing process for Shoreham."
In short, the pre-exercise agreement between the NRC and FEMA involved the following elements:
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1.
New York State and Suffolk County were expected not to participate.
2.
That fact would sufficiently influence the actual conduct of the Exercise as to prevent FEMA from being able to reach any ultimate conclusion about the state of readiness' indicated by the Exercise. It would not prevent FEMA from being able to I
svaluate the specific aspects of the Exercise actually performed.
1 3.
The Exercise was to be as broad as possible within applicable legal con-straints, includin all normal exercise objectives and functions. It would also include the use of federal personnel simulating the performance of state and local government officials, to test LERO's ability to react to the ad hoc participation of these govern-ments in the event of a real emergency.
4.
The absence of an ultimate finding by FEMA was not intended to determine i
the usefulness of the Exercise for licensing purposes. FEMA went out of its way to note that the NRC, as the final authority on licensing decisions, has the final word on whether the Exercise might serve as an adequate basis for the predictive findings re-quired in licensing on emergency planning issues, and ventured no opinion of its own on that issue. For its part, the NRC did not take a position in advance on whether the Ex-ercise would prove fully adequate for licensing purposes. Neither agency ruled out the possibility of its being fully adequate under NRC regulations; neither agency could com-mit in advance of the exercise that it would prove to be adequate.
ARGUMENT i
L The Absence of Participation by State and Local Governments In Offsite Emergency Preparedness Exercises Is Not Legally Determinative Of Their Acceptability For NRC Licensing Purposes One possible basis for Contention EX 19 is the premise that state and local gov-ernmental participation is a prerequisite legally for the suitability of an exercise for 11-
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t censing purposes. This proposition finds no support in statute, regulation, decisional law or the history of this case.
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_ _ _ _ _ _ _ _ _ The advance participation of state and local governments in offsite radiological emergency planning and preparedness for nuclear power plants may be highly desirable, and in some cases may be a practical necessity, but is not legally compelled as a condi-tion for obtaining or maintaining a license either by statute or Commission regulation.
The bedrock statute in the field, the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 e_t seg., nowhere treats the concepts of emergency planning and pre-paredness; rather, it imposes on the Commission the general obligation to assure the protection of the general public against undue radiological hazards associated with op-eration of commercial nuclear power plants. The Commission, pursuant to that statu-tory responsibility, has imposed offsite preparedness requirements in its regulations, most particularly 10 CFR S 50.47 and Appendix E to Part 50, as the last in a series of strategies and requirements designed to provide defense in depth.
A series of limited-term NRC Authorization Acts beginning in 1980 (for fiscal years 1980,1982-83, and 1984-85) required the Commission to condition reactor licens-ing and operation on protection of the general public against raowlogical accidents with offsite consequences. However, each of these limited-duration statutes permits the Commission to find adequate offsite preparedness not only on the basis of state and local emergency plans, but also on the basis of state, local or utility-sponsored emer-gency plans where no FEMA-approved state or local plan exists.
The Commission's regulations governing offsite emergency preparedness,10 CFR S 50.47 and Part 50 Appendix E, similarly do not condition the acceptability of offsite emergency planning and preparedness on the participation of state and local govern-ments. Those regulations speak in terms of offsite emergency plans prepared and spon-sored by state and local government plans. However, ever since 1983, when in this case 4/
Pub. L.96-295, S 109, 94 Stat. 780, 784 (1980); Pub. L.97-415, S 5, 96 Stat. 2067, 2069 (1982); Pub. L.98-553, S 108,98 Stat. 2825,2827 (1984).
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7 Suffolk County tried to use th'e fact of its withdrawal from participation in offsite emergency planning for the Shoreham plant'as a basis for rummary termination of the offsite emergency planning proceedings which were then beginning, the Commission 1
l has recognized that state or local sponsorship is not required under its regulations; that
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in the absence of governmental willingness to engage in offsite planning, a utility plan is entitled to consideration on the merits; and that if a utility plan provides adequate protection of the public health and safety, it is entitled to be the basis for operation at full power.. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
CLI-83-13,17 NRC 741 (1983).5/ Accord, Citizens for an Orderly Energy Policy v.
County of Suffolk, 604 F. Supp.1084,1094-95,1096 (E.D.N.Y.1985),SI aff'd 813 F.2d 570 (2d Cir.1987).
5/
The Commission noted the existence of potential issues of federal preemption surrounding the use of a utility-only plan, and the fact that the burden of proof of satis-fying regulatory standard would be on the utility applicant, but expressed no opinion on
' the likelihood of success given the absence of an evidentiary record.17 NRC at 743 j/
The COEP Court stated:
A local government may not establish itself as a second nu-clear regulatory authority with safety requirements over and above those of the NRC.
Certainly the County may not require LILCO to comply with the County's requirements for a satisfactory RERP [Ra-diological Emergency Response Plan]; whether LILCO's RERP is sufficient is a question for the NRC, and the Coun-ty may not override the NRC's judgment.... The County L
has not and cannot supersede the judgment of the NRC on I
whether or not a license should issue for Shoreham. Once q
the NRC makes that decision the County's opinion on f
LILCO's RERP will become academic.
1
... Congress considered the possibility that a state or local
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government or both would fall to participate in emergency
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planning. Rather than require participation, Congress pro-vided that the utility could provide a plan.
Since that time the Commission has instituted, with recurrent oversight, what are by now four years of proceedings in this docket, including one related to an exer-cise, to examine an offsite emergency plan premised on the absence of state and local willingness to participate. It seems highly unlikely that the Commission would have permitted this massive and prolonged effort to be undertaken, much less to continue, if it had felt that the participation of state and local governments in offsite exercises, any more than in any other aspect of offsite planning, was a legal prerequisite to its own reasonable assurance finding on emergency preparedness.
The Commission's authority to determine what is required for licensing purposes in the area of offsite emergency preparedness was affirmed explicitly in the context of the February 13 exercise, again by the U.S. District Court for the Eastern District of New York. There the Court, in ruling that Suffolk County's. Local Law 86-2 had uncon-stitutionally intruded into the federally preempted area of radiological health and safe-ty regulation when it attempted to make criminal significant aspects of the then-impending exercise, stated:
It is manifestly clear from an examination of the legislative history... that Congress by no means intended to allow local governments to frustrate or impede the NRC's ability to eval-uate a utility's RERP, either passively, through non-acquies-cence, or actively, through a prohibition such as Local Law 2-86.
Emergency planning for radiological hazards in the event of a l
nuclear power plant accident, as the legislative history dem-onstrates, is well within the sphere of authority reserved for i
l the federal government by Congress. Federal law encourages but does not require the states and localities to participate in emergency planning. Congress requires that the NRC, in con-junction with FEMA, will scrutinize any emergency evacua-tion plan rigorously, regardless of whether it is submitted by state or by the utility.... The test is not an abstract exer-else meant to evaluate LILCO's efficiency or reliability as a public utility. It is geared to determine whether LILCO can respond adequately in the event of a major radiological disas-ter at the Shoreham facility. Therefore, the Court concludes that off-site testing of a utility's RERP is within the sphere of activities preempted by federal law.
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Lo'ng Island Lighting Co. v. County of Suffolk,654 F. Supp. 628, 664-65 (E.D.N.Y.1986).
Thus state and local participation in emergency planning is not required by stat-ute, Commission regulation or decisional law. Indeed, the courts have consistently upheld the Commission's interpretation of its obligation, which is that in the absence of i
state and local offsite plans utility plans are permissible and must be substantively eval-uated. Since an exercise is nothing more than an aspect of the overall evaluation of emergency preparedness, it follows that state and local government participation can-not be required as a matter of law for an exercise to be sufficient for licensing purpos-es.Il II. The Nature or Absence of FEMA Exercise Findings is not Legally Determinative of the Acceptability of Emergency Preparedness Issues for NRC Licensing Purposes A secoad possible interpretation of Contention EX 19 is that an affirmative bottom-line finding by FEMA concerning the state of emergency response preparedness demonstrated by an exercise is necessary in order to permit the NRC to reach its own findings regarding the overall state of emergency preparedness sufficient for licensing purposes. Evidence for this proposition is found in the Contention's notation, twice, that FEMA did not render a bottom-line finding on the exercise.
In the first instance, Interveners characterize the absence of a bottom-line 1/
if Interveners' argument goes to the slightly different point that since a good faith response by state and local governments in the event of an actual emergency is assumed by the realism doctrine enunciated by the Commission in CLI-86-13, 22 NRC 24 (1986), an exercise must evaluate that good faith response, the result is no different.
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The exercise provided, through the use of federal personnel simulating the actions of state and local officials, a means of testing LERO's ability to adapt to the unplanned re-sponse of those officials. This aspect of the exercise was reported on in the FEMA Post-Exercise Assessment (favorably, see id. at 7-E, 31-32, 33-34). Thus to the degree l
i that a demonstration of LERO's ability to accommodate the ad hoc, best-efforts partic-ipation of state and local officials in the event of an actual emergency is needed under the realism doctrine, it has been provided already.
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lo_________--___
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- FEMA finding on the Exercise as "an inability to make a reasonable assurance finding in LILCO's f avor regarding the implementability of the LILCO Plan"; in the second, they assert that "[t]he exercise results were so limited that FEMA was unable to make the required reasonable assurance finding." (Emphasis supplied). In each instance the sense of the sentence is that a finding by FEMA, of a type not made by it, is required in orde' for the NRC to be able to reach a decision to authorize a full power license.
While Interveners do not specify what it is they are referring to in their refer-ences to allegedly required FEMA " findings,"W they presumably are referring to an ulti-mate, or " bottom-line" finding as to the acceptability or implementability Jf the Shoreham offsite plan under FEM A's regulations, 44 CFR Part 350, as the Exercise bears on that question.N Interveners could not plausibly be using the term " finding" to refer to narrower, f act-specific findings on technical issues; fc." FEM A has repeatedly made " findings" on hundreds of such issues, in the context both of the Exercise and of 8/
Both FEMA and NRC regulations and related documents refer to " findings and determinations, and to " assessments," " findings," and " determinations" without defining or clearly distinguishing among them. Se_e _e2.,10 CFR S 50.47(a)(2): "...NRC will base its finding on a review of the Federal Emergency Management Agency (FEM A) findings and determinations.... A FEMA finding will primarily be based... " (NRC regulations).
See also e.g., 44 CFR S 350.3(e): FEM A has entered into a Memorandum of Understand-Q with the NRC [ pursuant ] to which it will furnish assessments, fin (ngs and determinations.... These findings and determinctns will be used by the NRC under its own rules... and FEM A will support its findings in the NRC licensing process... "
(FEMA regulations). S_ee also, eg., 50 Fed. Reg. 15485,15486 col.1 (April 19,1980):
" FEMA..
makes findings and determinations as to the adequacy and capability of im-plementing offsite plans.. The NRC reviews those FEMA findings and determinations in conjunction with the NRC onsite findings.
These overall findings and determina-tions are used by the NRC to make radiological health and safety decisions in the issu-ance of licenses... (NRC-FEMA Memorandum of Understanding).
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Interveners are presumably referring to the evaluation process for which FEMA sets the 1ollowing criteria at 44 CFR S 350.3(b) of its regulations:
In order for State o[r] local plans and preparedness to be ap-proved, such plans and preparedness must be determined to ade-quately protect the public health and safety by providing reason-able assurance that appropriate protective measures can be taken of fsite in the event of a radiological emergency.
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. - - - - - - - -. -.. - -.... -.. - - - - the Shoreham Plan generally, via the Post-Exercise Assessment and the RAC reviews of Revisions 0 through 8 of the Shoreham Plan.E!
The absence of an ultimate or " bottom-line" fhiding from FEMA does not pre-clude NRC from being able to reach licensing judgments sufficient to authorize full power operation if the facts otherwise justify it, and the contention is incorrect, for the following reasons, to the extent it asserts otherwise.
First, FEMA's regulations themselves removo FEMA from any " pivot" position in the NRC's decision-making process. The entire regulatory package pursuant to which FEMA normally evaluates offsite emergency planning, 44 CFR Part 350, is focused on and limited to evaluation of state and local emergency plans.
FEMA's regulations state, at 44 CFR S 350.4:
The regulation in this part does not apply to, nor will FEMA apply any criteria with respect to, any evaluation, assessment, or deter-mination regarding the NRC licensee's emergency plans, nor shall FEMA make any similar determination with respect to the integra-tion of offsite and NRC licensee emergency preparedness except as these assessments and determinations affect the emergency pre-paredness of State and local governments. The regulation in this part applies only to state and local planning and preparedness with respect to emergencies at commercial nuclear power f acilities....
Thus, FEMA's own regulations appear to preclude it from issuing " findings and g/
FEMA states in its regulations,44 CFR S 350.3(e), as follows:
FEMA has entered into a Memorandum of Understanding (MOU) with the NRC [ pursuant) to which it will furnish assessments, findings and determinations, as to whether State and local emer-gency plans and preparedness are adequate and continue to be ca-pable of implementation (e.g., adequacy and maintenance of proce-dures, training, resources, staffing levels and qualification and equipment adequacy). These findings and determinations will be used by NRC under its own rules in connection with its licensing and regulatory requirements and FEMA will support its findings in the NRC licensing process and related court proceedings.
If " findings and determinations" are understood in the sense described in S 350.3(e),
FEMA has indeed made the findings and determinations contemplated by FEMA regula-tions, and the contention is simply wrong on the merits.
. determinations" in any conventional sense in the case of any nuclear plant except where state and local governments sponsor offsite emergency preparedness.N However, FEMA's regulations also recognize that the absence of state and local emergency plans - and hence the absence of conventional findings from FEMA -is not intended to preclude the NRC from issuing full power operating licenses. Discussing the effect of the NRC Authorization Acts, the regulation states as follows:
Section 5 [of the 1982-83 Act] provides for the issu-ance of an operating license for a commercial nuclear y
power plant by the NRC if it is determined that there exists a state, local or utility plan which provides as-surance that public health and safety is not endangered by the operation of the facility. This section would t
allow the NRC to issua an operatinsr license for such plants without FEM A-approved State and local srovernmental plans.
44 CFR S 350.3(c)(1)(Emphasis supplied).
The concept that the NRC can issue operating licenses. notwithstanding the ab-sence of state and local offsite emergency plans, assuming the facts justify it, has been straightforward Commission law at least since its 1983 decision in CLI-83-13, see page 9 above. Bowever, FEMA's direct recognition of this proposition in its own regulations, coupled with the applicability of those regulations only to evaluat!cn of state and local plans, sheds significant light on FEMA's understanding of the effect of the absence of state and local participation. Put simply, it is this: FEMA's formal process is geared to evaluation and approva! of state and local plans. While evaluations may be made of the facts of dfsite emergency preparedness for specific sites (see 44 CFR S 350.3(f)), such evaluations do not result in the full bottom-line findings given to state and local plans.
1_1/
That does not, of course, prevent FEMA from doing technical evaluations of offsite plans, or from conducting and evaluating exercises, at the NRC's request under the Memorandum of Understanding, for plants not having state and local cooperation; indeed, this is the device which has been used for Shoreham. What is clear, however, is that the entire orientation of FEMA's radiological emergency preparedness program is geared toward state and local governments.
_ -..,..__ -..., - Nevertheless, the limitations on the extent of FEMA's process _where state and local participation does not exist cannot, and are not intended by FEMA to, preclude the NRC from issuing operating licenses where the f acts warrant it.
The Commission's regulations compel the same conclusion, and Interveners' argu-ment to the contrary is incorrect. Interveners cite in the contention to 10 CFR S 50.47(a)(2), asserting that it stands for the proposition that the Commission "have and review FEMA ' findings and determinations ns to whether State and local emergency plans are adequate and whether there is reasonable assurance that they can be implemented....'" as a prerequisite to licensing (emphasis in quoted material). Interve-nors argue that the absence of FEMA findings thus reveals a " fundamental flaw"in the Shoreham plan which precludes licensing l Interveners' review and use of 5 50.47(a)(2) is incomplete. The regulation, in full, reads as follows:
(2) The Commission will base its finding [as to the existence of reasonable assurance on emergency preparedness 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 the applicant's onsite emergency plans are adequate and whether there is reasonable assurance taht they can be implemented._ A FEMA finding will be based primarily on a review of the plans. Any other information available to FEMA may be considered in assessing whether there is reasonable assurance that the plans can be implemented. In any NRC licensing proceed-ing, a FEMA finding will constitute a rebuttable presumption on questions of adequacy and implementation capability.
This full passage indicates three important matters on its face. First, the NRC is not bound by findings (positive or negative, present or absent) issued by FEMA. They are i
rebuttable presumptions, not dispositive statements.EI Thus the nature or existence l
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FEMA findings are given the deference of rebuttable presumptions unless dis-puted, if a party disputes a finding the rebuttable presumption dissolves and the finding is given the weight accord to the expertise of the witness and the bases for his opinion.
Catulina Power and Light Co. and North QJLrolina Eastern Municipal Power Agency (Shearon Ilarris Nuclear Power Plant), LBP-86-11, 23 NRC 294, 365 (1986); see also, Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 475 (1986).
- of FEMA findings, contrary to Interveners' apparent assertion, is not determinative.E Second, the NRC is not limited to the material in those FEMA findings: any other material available to FEMA may also be considered. As a result, the full record contained in and underlying FEMA's RAC Reports and Post-Exercise Assessment, even if arbitrarily excluded from the ambit of " findings" (as could happen if such findings are held to relate only to the evaluation of state and local plans), is part of the record on the Commission's own determination.
Third, FEMA findings (at least for NRC licensing purposes) are based primarily on plan reviews; thus any suggestion in the contention that the Exercise gives rise to an entirely de novo round of FEMA findings is not correct.O Thus neither NRC nor FEMA regulations contemplate that the presence, absence or nature of FEMA findings will be determinative of the outcome of NRC proceedings.
NRC gives FEMA findings the force of rebuttable presumptions; and to the extent that the myriad of technical findings made by FEMA in the course of its plan and exercise review are considered to be " findings," the Commission should give them that presump-tion. To the extent that the term " findings"is considered to relate only to the " bottom-line" finding, which FEMA's regulatory construct enables it to render in the context of state and local plans only, the NRC is not bound by the absence of such a finding.
1_3/
Note that the regulation refers first to FEMA " findings and determinations," and then to FEMA " findings" alone, without differentiating between them or ascribing any distinct function for FEMA "determinatiort M/
A fourth matter is brought out concerning the highlighted language in the pas-i sage, which was added by amendment in 1982. The Statement of Consideration accom-I panying its issuance indicates that that language was added in order to emphasize that emergency planning findings made prior to licensing are predictive in nature and need l
not reflect the actual state of preparedness at the time the finding is made. 47 Fed.
Reg. 30232 cols.1-2 (July 13,1982). See also 50 Fed. Reg.19323 col. 2 (May 8,1985).
This is consistent with the Commission's approval of emergency plans despite the ab-sence of any final FEMA review. See Pacific Gas and Flectric Co. (Diablo Canyon Nu-clear Power Plant, Units 1 and 2), ALAB-776,19 NRC 1373,1379 (1984); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 1 and 2),
ALAB-717,17 NRC 356,380 (1983).
m Certainly neither the NRC nor FEMA felt that the significance of the Exercise was determined from the outset by the anticipated absence of an ultimate FEMA find-ing. As the correspondence setting up the Exercise, outlined in detail in the Statement of Facts, reveals, FEMA indicated to the NRC from the outset that the absence of state and local governmental participation would preclude it from being able to render any bottom-line findings. The NRC accepted that fact, as is also clear. It is equally clear m
that neither NRC nor FEMA thought that that fact determined the value of the Exer-cise for licensing purposes. FEMA's letter of October 29,1985 (Attachment 3) indicated its belief that the Exercise might provide a basis for the NRC to reach predictive li-censing findings on emergency preparedness, and recognized explicitly that the NRC was ultimately responsible for the pertinent licensing judgments. For its part the NRC, in its letters of June 20 and November 12 (Attachments 2 and 5), refused to circum-scribe the potential utility of the Exercise for licensing purposes. The subsequent course of conduct, which is simply consistent with the regulatory construct outlined above, suggests the obvious: that neither NRC nor FEMA thought that the absence of state and local governmental participation was anything more than a factual circum-stance to be taken into account; certainly it was not legally determinative of the use-fulness of the Exercise for licensing purposes. Thus in suggesting that it was de-terminative, the contention is incorrect.
III. The Atsence of State and Local Governmental Participation in the Exercise Does Not Determine the Adequacy of the Exercise's Factual Record for Licensinst Purposes The third and final possibility as to the intent of Contention EX 19 is that the absence of state and local participation in the Exercise makes its record (and, presuma-bly that of any exercise in which state and local governments did not participate) defi-nitionally inadequate for licensing purposes.
The first basis for this possible
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- W interpretation is the contention's quotation of a February 15, 1986 remark of Frank Petrone, then FEMA regional administrator, that "Since [the Shoreham] plan cannot be implemented without state and local governmental participation, we [ FEMA] can-not give reasonable assurance under NUREG-0654...." The second is the contention's later assertion that "the exercise results were so limited that FEMA was unable to make the required [ sic] reasonable assurance finding."
Just what it is about governmental participation which makes it essential to the record of'the Exercise is not indicated by the contention. However, the contention's argument is apparently to the effect that since in a real emergency New York State and Suffolk County would be expected to supplement LERO's response with their own and would thereby cure any legal authority or other questions otherwise attaching to LERO's implementation of the Shoreham Plan, then such " participation" is essential to the Plan's " implementation," and any exercise which did not include New York State and Suffolk County in f act is definitionally inadequate.
This argument can take three slightly differing directions, differing only in nu-ance. None of them invalidates the Exercise for licensing purposes.
The first possibility is that the argument means that New York State and Suffolk County, by refusing to participate, can definitionally invalidate an exercise. If that is what is intended, then the argument is virtually identical to the argument shown to be incorrect in the first Argument above, since it would make these entities' participation in an exercise essential when their participation in the basic plan itself is not, and l
would thus make it possible for states and localities, merely by not cooperating and 1
I doing nothing more, automatically to frustrate satisfaction of offsite emergency plan-ning requirements. This is contrary to the principles of federal supremacy in areas of radiological health and safety outlined above.
e 19 Alternatively, the argument could be that an exercise of a plan which relies on the realism doctrine presumes some degree of state and local involvement in actual re-sponse and therefore requires some degree of dry run of that doctrine. This form of the argument is either akin to the argument immediately above or raises the question
(
whether as much was done as possible to simulate the expected effect of state and county participation in an actual emergency response. If the former, then the argu-ment is invalid for the reasons already outlined.
w If the latter, the argument raises the issue of whether the exercise's simula-on of state and county response was adequate. There was a record made on the nature and effects of simulation in the Exercise; that was reported on in the FEMA Post-Exercise
~*
a Assessment and summarized in the Statement of Facts above in this brief. Further fac-tual consideration of that argument, which formed a substantial part of the core of In-
/
tervenors' proposed contentions 8-14 (all of which dealt with alleged inadequacies in the Exercise attributable to the nature of simulation and other indicia of governmental involvement) is foreclosed at this point. This Board rejected those contentions on the basis of the Commission's acceptance of the realism argument, Prehearing Conference
?
Order (Ruling on Contentions and Establishing Discovery Schedule), October 3,1986, at 10-11. Contention 19 cannot be construed in a way which would readmit those conten-
/
tions by the back door.
The final possible permutation on the notion that an exercise without state and local participation is inadequate is a pure f actual argument: that not enough aspects of the Shoreham offsite plan were tested, or tested in sufficient depth, to make the Exer-cise a valid basis for licensing (presumably, with state and county participation the Ex-ercise's scope could have included all of these items). Such a contention, unlike the others, would not be definitionally improper. However, it has already been submitted in s
Contentions EX 15 and 16, which contend that various elements of the Shoreham Plan
....... 1 were not tested in the Exercise and that their absence reveals a " fundamental flaw" in that Plan.
The allegations in these contentions have already been litigated at length in this proceeding and are the subject of separate findings of fact before this Board. The ele-ment of governmental participation - the sole focus of Contention 19 - adds nothing distinct to these contentions. The Exercise either constituted a sufficient examination of the Shoreham plan in operation, and of LERO's capabilities, or it did not, and the ab-sence of a FEMA finding predicated on the state and local nonparticipation does not change the issues. Viewed in this light, which is the only one in which the contention would raise valid issues, those issues collapse into ones already admitted and litigated.
Thus the contention, even so understood, must be rejected for redundancy.
CONCLUSION For the reasons stated above, Contention EX 19 should be denied.
Respectfully submitted,
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Donild P. Irwin Lee B. Zeugin Kathy E. B. McCleskey Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: August 3,1987 1_5/
Closely allied is Contention EX 21, which alleges that the extent and depth to which various elements of the Shoreham plan were examined in the Exercise was insuf-ficient to support a licensing finding.
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June 4, 1985 oppies or twa Nrley secastaav Jordan COMTR-BS-SA MEMORANDUM FOR:
William J. Dircks, Executive Director for Operations g,
Samuel J. Chilk, Secret,3 rROM:
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SUBJECT:
SCHEDULING OF EMERGENCY 'PL%N EXERCISE FOR SHOREHAM In view of LILCO's standing request to schedule an exercise of its emergency plan, the Commission, with Chairman Palladino and Commissioner Asselstine disagreeing, sees no reason why the licensee should not be allowed to exercise those parts of the plan which it may legally exercise.
The Commission does not disagree with the view that an exer-cise of the LILCO plan could yield meaningful results, even though such an exercise may not oatisfy all of the require-ments of NRC's regulations.
It could, as a minimum, identify the impact of the limitations of LILCO's plan when executed under the state and county restrictions.
Although the Com-mission is aware that because of the recent court decision a full exercise of the LILCO emergency plan may not be possible, The staff should request that FEMA schedule as full an exer-cise of the LILCO plan as is feasible and lawful at the pre-sent time.
If FEMA indicates an exercise is not currently possible, the staff should ask FEMA to provide a detailed report of its reasons for declining, addressing the following:
1.
Status of the outstanding technical and operational deficiencies with the LILCO plan.
2 Estimates of when each remaining deficiency will be corrected.
NOTE:
Since this SRM was approved, the County Executive of Suffolk County has issued an Executive Order indicating that i
the County will cooperate in emergency planning activities for l
Shoreham.
The Staff, in requesting that FEMA schedule an
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emergency plan exercise, should also suggest that FEMA give appropriate consideration to the County's apparent change of position regarding participation in emergency planning activities.
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ENCLOSURE 1
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Specific plan implementation activities LILCo could not exercise given the state court's decision.
4.
Benefits and disadvantages to holding an exercise, given the response to Item 3, until legal concerns have been fully resolved or adeguste compensating measures taken.
5.
Views on whether (and if so ?.c>) the deficiencies can be adequately remedied without the involvement and coop-eration of state and local entities.
Commissioner Asselstine's views for inclusion in any letter to FEMA will be provided to you within several days.
cc:
Chairman Palladino Commissioner Roberts comissicner Asselstine Commissioner Bernthal Commissioner Zech OGC OPE ASLBP ASLAP OI OIA OPA OCA Shoreham Service List l
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Constissioner Asselstine does not believe that the Comission should request that FDu schedule an emegency planning exercise of the LILCO plan at this Absent state or local government participation, there are serious time.
questions abcat LILC0's authority to implement significant portions of its asergency plan for Shoreham. Further, there is an ongoing dispute within Suffolk County concerning the county's position on emergency planning at Shoreham and its willingness to participate in testing and implementing an emergency plan. Under these circumstances, Commissioner Asselstine believes that scheduling an exercise of the LILC0 plan at this time would only confuse matters further, He therefore recomends that FD% wait to plan and schedule an exercise for Shoreham at least until there is some resolution of Suffolk County's position on this issue.
ENCLOSURE 2
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MEMORANDUM FOR:
Samuel J. Chilk Secretary of the Comission g
FROM:
William J. Dircks Executive Director for Operations
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SUBJECT:
SCHEDULING OF EMERGENCY PLAN EXERCISE 3DN FOR SHOREHAM b ~~
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w This responds to your June 4, 1985 memorandum (COMTR-85-5A) recommending that the staff request that FEMA schedule as full an exercise of the Shoreham emergency plan as is feasible and lawful at the present time. A copy of the staff's memorandum to FEMA is enclosed.
4A LL William J NDircks Executive Director for Operations
Enclosure:
Memo to FEMA cc: Chairman Palladino Commissioner Roberts Commissioner Asselstine Commissioner Bernthal Commissioner Zech OGC OPE
Contact:
F. Kantor, IE 492-9749
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. MEMORANDUM FOR:
Richard W. Krima Assistant Associate Director Office of Natural and Technological Hazards Programs Federal Emergency Management Agency Edward L. Jordan Director FROM:
Division of Emergency Preparedness and Engineering Response Office of Inspection ard Enforcement SCHEDULING OF EMERGENCY PLAN EXERCISE
SUBJECT:
FOR SHOREHAM In response to LILCO's standing request to schedule an exercise of its emergency plan for Shoreham, the Commission, in a memorandum to the Executive Director for Operations dated June 4,1985 (Enclosure 1), stated that it sees no reason why the licensee (i.e., LILCO) should not be allowed to exercise those parts of the plan Further, the Commission indicated that it does which may be legally exercised.
not disagree with the view that an exercise of the LILCO plan could yield meaning-ful results, even though such an exercise may not satisfy all of the requirements The exercise could, as a minimum, identify the impact of of NRC's regulations.
the limitations of LILCO's plan when executed under the state and county restric-tions.
Accordingly, we request that FEMA schedule as full an exercise of the LILC0 Local Emergency Response Organization (LER0) plan as is feasible at the present time giving appropriate consideration to the Suffolk County Executive's May 30, 1985 Executive Order and subsequent developments relating to emergency planning In determining those portions of the LERO plan that activities by the County, might be appropriate for inclusion in an exercise at this time, we suggest that FEMA emphasize evaluation of the functional areas of emergency preparedness related tc the demonstration of response capabilities within the plume exposure (10 mile) Emergency Planning Zone.
Contact:
F. Kantor, IE 492-9749
2-Richard W. Krim In 8he event FEMA determines that an exercise is not currently possible, we request that FEMA provide a response which addresses the five issues identifie Commissioner in the memorandum from the Secretary of the Comission.
Asselstine's views on this matter are provided as Enclosure 2.
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, Director Division of Emergency Preparedness and Engineering Response Office of Inspection and Enforcement
Enclosure:
- 1. Memorandum from the Secretary of the Comission dtd. 06/04/85
- 2. Commissioner Asselstine's Views
Q Federal Emergency Management Agency Washinpon, D.C. 20H2 October 29, 1985 Mr, William J. Dirds Executive Director for Operations U.S. Nuclear Regulatory Ccredssion Washington, D.C.
20555
Dear Mr. Dirds:
his is in response to a memoranism dated June 20, 1985, frca Edward L. Jordan to R16ard W. Krimn in which FEMA was rquested to pro-coed with the cenket of 'as full an exercise......as is feasible to test offaite preparodrtsss capabilities at the Shorehm Nuclear power Plant."
In my October 8,1985 letter,*is transmitted the review of twision 5 of the LIico Local Energency Response Organization (MRO) plan, I indicated we were analyzing the results of the plan revier in the context of the September 17, 1985 letter from Chairnan Palladino to Congressman Markey, and the varicus legal proceedin2s related to Shoreham in order to respond to the June 20 manerandum within several weeks. Our analysis includes consideration of the Atomic Safety and Licensing Appeal Board decision d October 18, 1985.
ne deficiencies identified in my letter cf October 8 do not preclude the conduct of an exercise of the MRO plan. However, the reluctance of county and State officials to participate in such an exercise and the related legal authority issues would plaos special paranatere on the corzhet of a tao exercise.
We have no indication at this time that of faite jurisdictions are willing to directly participate in an exercise in the short term. mus, any exercise will be dramatically different than is typical at other sites in the State of New York. Any enorcise without participation by State and local garrments would not allow us sufficient demonstration to reach a finding of reasonable assurance.
mis conclusion is based on the current legal decision with respect to utility authority to perform civil energency functions. However, that does not preclude the conduct of an exercise that would provide an indication to the h: lear Regulatory Cmmission (NRC) as to utility onsite and offsite energency capabilities. We believe such a report would have value in decisions to contirue the licensing process or possibly provide a basis on whid the NRC could nahe predictive findings. Obvicusly, the value of such an exercise in the licensing process is a determination whi e can only be made by the NRC.
Given the nature of ) cur June 20 request and consideration of a practical structure for an exercise, we feel that,
- ile thers are a ntreer cf variations possible, the basic cptions for exercising in the near term I
are limited to two:
Option 1 - This eption would require that we set aside all functions and emarcise objectives related to issues of authority and State and local participation. Thus, only the functions outlined for LIIc0 would be esercised. Such
1 2-an exercise is passible but its usefulness euld seen very limited. An exercise of this type would not address questions such as those raised on pages 35 through 39 of the october 18 decision cf the Atomic Safety and Licenairg Appeal Board and would be redundant to actions already taken by NRC.
optien 2_ - This cption would include all fmetions and nomal exercise oojectives. This cption would exercise Revision 5 of the LEBO Plan. Exercise controllers w:uld simulate the roles of key State or local officials unable or unwilling to participate. It would be desirable that State and local government personnel actually play. However, such a sint-lation nechanism would at least test the utility's ability to respond to ad hoc participation on the part of State and local governments.
The ultimste purpose et an exercise is to support a finding by FINA for use by the NRC in their licensing process. As we mentioned above, neither of these eptions would allcw a finding by FD% on offsite preparedness.
However, we recognize that Shoreham is in no way typical and that in the past in exercising its adjudicatory powers the Caenission and the various Atcmic Safety and Licensing Boards have reased predictive findings.
Pursuant to your June 20 request, we are initiating the process necessary to conduct an exercise of either eption. We are prepared to conduct such an euereise in approximately 75 days. Mcwever, f1MA requires further clari"ication frcm NRC as to the secpe of the exercise to be conducted.
FD4A will ph with the initiating steps until November 15, at which time we will need a definitive exercise scope frtan NRC in order to avoid prohibitive ccats.
If at that tirne we have received no direction from the Nuclear Regulatory Casaission we will suspend activities until a decision is made. Given other demands, we do feel that any delay beyond the current window would require an enorcise postponement of at least 90 days beyond the mid-Jaruary time frane.
Sincerely, L>l.
{apuel W. Specn Associata Dire: tor i
state and tocal Prograns and Support
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Washington, D.C. 20472 October 29. 1985 Honorable Edward J. Markey Chairman, Subcormnittee on Energy, Conservation and Power Carrmittee on Energy and Ccreerce House of Representatives Washington, D.C.
20515
Dear Mr. Markey:
I have enciesed a ecoy of corret.pondence sent to the Nuclear Regulatory Ca cission today. You will note frem this letter that w are advising the Commission further as to the cptions that seen possible for an exercise at the Shoreham Nuclear Power Station. Mr feel strongly that the ultimate value ci such an exercise nust be determined ty the Ccmission.
I believe that this letter further clarifies our position on the exercise and responds to same of the questions e have received fran your staff.
We also wish to acknowledge the additional questions pertaining to our correspondence of October 8, 1985, $ 1ch were referred to us by phone from your staff. Please be advised that a response will be forthcorting this w ak.
If after your perusal of this letter you have further questions, we will be happy to respond.
Sincerely, M u. V J,anuel W. S m k Associate Director State and Local Programs and Support Encicoure l
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i m o wee m,o.s.sessi HV 111985 nr. samus1 W. speck Associate Director State and Local Programs and Support Federal Emergency Management Agency Washington, D.C.
20472
Dear Mr. Speck:
This responds to your letter of October 29, 1945, proposing two options for an exercise to test onsite and offsite emergency preparedness capabilities at Shorehem. We conclude that an exercise should be conducted consistent with the approach outlined in your Option 2.
You asked in the letter for further clarification from the NRC as to the scope of the exercise to be conducted.
As stated in our memorandum to you of June 20, 1985, we requested that you schedule as full en exercise of the LILCO Local Emergency Response Organization plan es is feasible.
Option 2 would include all functions and normal exarcise objectives, recognizing that some offsite response roles may be simulated.
We believe that such an exercise would be useful in the licensing process for Shoreham.
Please let me know if 'we can be of further assistance.
Sincerely,
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111am J. Dircks ecutive Director for Operations
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Contention EX 19. [ Admitted for legal arsrument]. The exercise demonstrated a fundamental flaw in the LILCO Plan resulting from FEMA's inability to make a rea-sonable assurance finding in LILCO's favor regarding the implementability of the LILCO Plan. FEMA stated in advance of the exercise that it would not be able to make a fa-vorable reasonable assurance finding based on the exercise results. See, e&, Letter from Samuel W. Speck, FEMA, to William J. Dircks, NRC, October 29,1985. Af ter the exercise, FEMA reiterated this point. See, el, FEMA Report at ix. In f act, however, FEMA's former Region II Director, Frank Petrone, stated on February 15,1986, that a "no reasonable assurance" finding was necessary: "Since this Plan cannot be imple-mented without state and local government participation, we [ FEM A ) cannot give rea-l sonable assurance under NUREG 0654 that the public health and safety can be pro-tected."
The NRC's regulations require as a prerequisite to licensing, that the NRC have and review FEMA " findings and determinations as to whether State and local emergen-cy plans are adequate and whether there is reasonable assurance that they can be implemented...." 10 CFR S 50.47(a)(2) (emphasis added). The exercise results were so limited that FEMA was unable to make the required reasonable assurance finding.
Accordingly, the exercise confirmed a fundamental flaw in LILCO's Plan, i.e., that the Plan, as exercised, cannot provide a basis for a FEMA reasonable assurance finding.
Thus, the exercise precludes the NRC from finding reasonable assurance that adequate protective measures can and will be taken in the event of a Shoreham accident, as re-quired by 10 CFR S 50.47(a)(1).
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LILCO, August 3,1987 3
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.tq, CERTIFICATE OF SERVICE In the Matter of m
LONG ISLAND LIGHTING COMPANY bau, c 7
(Shoreham Nuclear Power Station, Unit 1) 7' Docket No. 50-322-OL-5 I hereby certify that copies of LILCO'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE FEBRUARY 13, 1986 EMERGENCY PLANNING EXERCISE FOR SHOREHAM, APPENDICES TO FINDINGS OF FACT AND CONCLU-SIONS OF LAW and LILCO'S BRIEF ON CONTENTION EX 19 were served this date upon the following by hand as indicated by an asterisk (*), by Federal Express as indicated by two asterisks (**), or by first-class mail, postage prepaid.
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 I
4350 East-West Hwy.
Oreste Russ Pirfo Esq.
- Bethesda, MD 20814 Edwin J. Reis, Esq.
U.S. Nuclear Regulatory Commission q
Dr. Oscar H. Paris
- Maryland National Bank Building 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 j
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T 4 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 Energy 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.
Twomey, Latham & Shea Sn.ffolk County Attorney 33 West Second Street
. 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 Three Rockefeller Plaza Albany, New York 12223 ll--
W Lee B. Zft{ tit ()
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: August 3,1987