ML20237E556
| ML20237E556 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/19/1987 |
| From: | Irwin D, Reveley W HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#487-5131 LBP-87-32, OL-5, NUDOCS 8712290056 | |
| Download: ML20237E556 (97) | |
Text
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'87 DEC 21 P3 :18 l UNITED STATES OF AMERICA; UrFicE 0? 5LLFr M '
l NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of ) l
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S MOTION FOR IMMEDIATE CERTIFICATION TO THE COMMISSION OF ISSUES PRESENTED BY LBP-87-32 OR FOR EXPEDITED BREFING, ARGUMENT AND DECISION BY THE APPEAL BOARD W. Taylor Reveley, III Donald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 December 19,1987 8712290056 07121-7 PDR ADOCK 05000322 G PDR
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensinst Appeal Board In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
l LILCO'S MOTION FOR IMMEDIATE CERTIFICATION TO TIIE COMMISSION OF ISSUES PRESENTED BY LBP-87-32 OR FOR EXPEDITED BRIEFING, ARGUMENT AND DECISION BY THE APPEAL BOARD W. Taylor Reveley, III Donald P. Irwin l
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 December 19,1987
. TABLE OF CONTENTS Page Table of C o n ten ts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Table of A u thori ties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 I. IN TR OD U CTIO N A N D SU MM A RY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. BACKGROUND ............................................. 3 A. The Exercise ........................................... 3 B. The Partial Initial Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 III. ISS U ES FOR C ER TIFIC A TIO N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 IV. THE PID IS FUNDAMENTALLY IN ERROR IN CONCLUDING THAT THE SHOREHAM EXERCISE DESIGN WAS NOT SUF-FICIENT FOR A " FULL PARTICIPATION" EXERCISE . . . . . . . . . . . . . . . . . 10 A. The Licensing Board's Interpretation of the Require-ments of the Term " Full Participation Exercise" as Applied to Initial Exercises Is Incorrect . . . . . . . . . . . . . . . . . . . . . . . 10 B. Even Assuming That the Test of a Full Participation Exercise Is More Stringent for an Initial Exercise Than for Subsequent Exercises, the Board's Faulting of the Four Omitted Areas Was Clearly Erroneous .................... 14
- a. EBS (PID at 27-28) ................................. 17
- b. Schools (PID a t 3 4-42) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
- c. Ingestion Pathway (PID at 42-44) . . . . . . . . . . . . . . . . . . . . . . . 19
- d. Special Facilities (PID at 46-50) . . . . . . . . . . . . . . . . . . . . . . . . 20 V. THE ISSUES ARE OF SUFFICIENT GRAVITY AND NOVELTY TO COMPEL CERTIFICATION TO THE COMMISSION . . . . . . . . . . . . . . . . . 21 A. 10 C F R S 2. 7 8 5(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 B. Grounds for Certification Under 5 2.785(d) . . . . . . . . . . . . . . . . . . . . . 22 VI. EXPEDITED TREATMENT OF THIS APPEAL IS NECESSARY AND REQUESTED .......................................... 26 VU. PRAYER FOR RELIEF ....................................... 28 A ttachments 1-3 Affidavit of Charles A. Daverio 4
4-
11 TABLE OF AUTIIORITIES Cases Page Long Island Lighting Co. v. County of Suffolk,628 F.Supp. 654
( E . D . N .Y . 19 8 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 McCuin v. Secretary of Health and Human Services,817 F.2d 161
( 1s t C ir. 19 8 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Union of Concerned Scientists v. NRC,735 F.2d 1437 (D.C. Cir.
1984), cert, denied, 469 U.S.1132 (1985) . . . . . . . . . . . . . . . . . . . . . . 3,15,17,20 Nuclear Regulatory Commission Decisions Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
CLI-86-11,23 NRC 577 (1986) ............................... 1,15,25 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
ALAB-861,25 NRC (1987) .............................. 16,25 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
A LA B-7 69, 19 N R C 995 (19 8 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-24 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LB P-8 6-3 8 A , 2 4 N R C 819 (19 8 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-87-32, ___ N RC (1987) .............................. passim Offshore Power Systems (Floating Nuclear Power Plants),
A L A B-5 0 0, 8 N R C 3 2 3 (19 7 8 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, U nits 1 and 2 ), A LA B-681, 16 N R C 146 ( 1982) . . . . . . . . . . . . . . . . . . . . . . . 22 Statement of Policy on Conduct of Licensing Proceedings, C LI-81-8, 13 N R C 4 5 2 (19 81) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23 United States Energy Research and Development Administration Project Management Corporation Tennessee Valley Authority (Clinch River Breeder Reactor), CLI-76-13,4 NRC 67 (1976) ................................................. 23
ill Regulations P,_ ate Nuclear Regulatory Commission,10 CFR S 2.762 . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Nuclear Regulatory Commission,10 CFR S 2.785(d) ....................... 23 Nuclear Regulatory Commission,10 CFR S 50.47 . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Nuclear Regulatory Commission,10 CFR Part 50 S 50.47(b)(14), (d) . . . . . . . . . . . . . 3 Nuclear Regulatory Commission,10 CFR Part 50 App. E,1 IV.F.1. . . . . . . . . . passim l Emergency Planning and Preparedness (Final Rule) 50 Fed. Reg.
19,3 2 3 (M ay 8, 19 8 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 l
1 Emergency Planning and Preparedness (Final Rule) 49 Fed. Reg.
2 7,7 3 3 (July 6, 19 8 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12,,20 Other Authorities Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants, NUREG-0654/ FEMA-REP-1 Rev.1 (1980) ............. 14,20 Emergency Planning and Preparedness for Production and Utilization Facilities; Frequency and Participation of Exer-cises (Proposed Rule) 48 Fed. Reg. 33,307 (July 7,1983) . . . . . . . . . . . . . . . . 11 Federal Emergency Management Agency, Draf t Guidance Memo-randum IN-1 (Ingestion Exposure Pathway) . . . . . . . . . . . . . . . . . . . . . . . . . 20 National Emergency Management Association, Filing of Petition for Rulemaking, 47 Fed. Reg. 29,252 (July 6,1982) . . . . . . . . . . . . . . . . . . . . . . 11 State of New York, Department of Health, Comments on Proposed Emergency Planning Rule (48 Fed. Reg. 33,307)
(Sept embe r 6, 19 8 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 New York Public Service Commission, Opinion 87-26, Case 29484 -
Proceeding on Motion of the Commission as to the rates, charges, rules and regulations of Long Island Lighting Com-pany for electric service, Opinion and Order Determining Revenue Requirement (December 3,1987) . . . . . . . . . . . . . . . . . . . . . . . . . 27
LILCO, December 19,1987 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board in the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S MOTION FOR IMMEDIATE CERTIFICATION TO THE l COMMISSION OF ISSUES PRESENTED BY LBP-87-32 OR FOR EXPEDITED BRIEFING, ARGUMENT AND DECISION BY THE APPEAL BOARD I. INTRODUCTION AND
SUMMARY
I l Nearly two years ago, on February 13,1986, the Federal Emergency Management Agency conducted a one-day exercise of Long Island lighting Company's Offsite Ra-diological Emergency Response Plan for the Shoreham Nuclear Power Station. That ex-ercise, intended to meet the Commission's relicensing requirements for a " full partici-pation" exercise,10 CFR Part 50 Appendix E,1 IV.F.1, involved over 1000 members of the Shoreham Local Emergency Response Organization (LERO) and numerous LERO contractor personnel. It was duly graded by FEMA two months later in a Post-Exercise Assessment issued April 17, 1986. On June 6,1986 the Commission ordered litigation on the exercise to be " expedited to the maximum extent consistent with fairness to the parties." CLI-86-11, 23 NRC 576, 582.
That litigation on this one-day exercise has been in process ever since, with 51 days of hearings and conferences, and an evidentiary transcript of 8694 pages amassed between August 6,1986 and the final evidentiary session on June 18, 1987. To date, l
there has been approximately a day of live proceedings for each 12 minutes of the exer-cise.
On December 7,1987, eighteen months af ter the Commission's initiating Order and nearly 22 months af ter the 1986 exercise, the Licensing Board issued a Partial Ini-tial Decision (PID), LBP-87-32. The PID, without any discussion of LERO's actual per-1 formance in the February 1986 exercise, held that the exercise itself was inherently de-ficient in scope on account of its exclusion of graded activities in four areas whose testing it believed would have been " reasonably achievable." As a result, in the Licens-ing Board's view, the February 1986 exercise did not qualify as a required " full partici-pation" exercise under Appendix E,1 IV.F.1, and cannot serve as a basis for issuance of a license to operate Shoreham at above 5% of rated power.
The Licensing Board's construction of 1 IV.F.1 raises novel issues never before litigated, has unquestionably severe consequences for Shoreham that can be averted only by timely review and redress, and has potentially significant consequences for all other NTOL plants and for the entire FEMA-NRC emergency preparedness exercise re-view structure.
Under the PID, unless it is reversed, LILCO may have to conduct another entire full participation exercise before it can obtain a full power license for Shoreham. Be-cause of the length of time elapsed since the 1986 exercise - almost 22 months to the date of the PID - that exercise may lose its effectiveness for licensing purposes even before LILCO can obtain effective relief under normal paths, since the exercise will be effective, unless extended, only until February 13,1988.N 1/ An exercise is presumptively effective for initial licensing purposes for 24 months.10 CFR Part 50 App. E,1 IV.F.1,52 Fed. Reg.16,823 (May 6,1987).
By separate Notice of Appeal, filed December 17, LILCO has initiated the pro-cess of review of the Licensing Board's decision, which it believes to be fundamentally wrong as a matter of law and on the record. A summary statement of LILCO's basis for this belief is set forth in Part IV of this motion. A summary statement of the issues for certification is set forth in Part III. By this motion and attachments, LILCO seeks the expedition which is essential for any relief to be effective.
Specifically, LILCO seeks the following relief:
- 1. Immediate certification to the Commission of the issues raised by the PID (Parts III, V of this motion);
- 2. In the alternative,
- a. expedited decision on this motion, and
- b. expedited briefing, argument and decision on LILCO's appeal of LBP-87-32 pursuant to the schedule outlined below (Parts VI, VII of this motion).
In essence, LILCO seeks definitive resolution of the issues raised by the PID sufficiently f ar in advance of February 13,1988 to avoid Joss of the effect of the 1986 exercise.
II. BACKGROUND A. The Exercise Some 22 months ago, on February 13,1986, the Federal Emergency Management Agency held what was contemplated as the final step in the NRC-required process2 /
2/ NRC regulations require that an exercise, supervised and evaluated by the Fed-eral Emergency Management Agency, be conducted of the offsite radiological emergen-cy response plan for any nuclear power plant before the plant is allowed to operate at power levels exceeding 5% of rated power.10 CFR Part 50 5 50.47(b)(14), (d); App. E, 1 IV.F.1. Remedial exercises will be held if necessary.10 CFR S 50.47(b)(14). That re-quirement has been held, to the extent material to the Commission's licensing decision, to be subject to litigation. Union of Concerned Scientists v. NRC. 735 F.2d 1437 (D.C.
Cir. 1984), cert. denied, 469 U.S. 1132 (1985). However, the Court of Appeals, (footnote continued)
for review and approval of the offsite radiological emergency response plan for Long Island Lighting Company's Shoreham Nuclear Power Station: a " full participation" ex-ercise of the Shoreham offsite plan, supervised and graded by the Federal Emergency Management Agency. The 1986 exercise, by all accounts, was designed consistently with previous FEMA /NRC " full participation" exercises; indeed, the PID acknowledges that it was "as comprehensive as any conducted in FEMA Region II up to that time."
PID at 51.
l The Shoreham exercise, like its basic offsite emergency plan, differed structur-ally from others in one respect: state and local governments (New York State, Suffolk County) did not participate in it.E Indeed, as with the fundamental concept of emer-gency planning for Shoreham, they opposed it.W As with the Shoreham emergency plan itself, the f act of utility rather than state / local sponsorship and participation in the ex-ercise imposed some circumstantial constraintsEI for the exercise but did not affect its (footnote continued) recognizing the potential for abusive delay in such litigation, contemplated that it would be expedited. I_d. at 1448 & n.21; cf. id.1451-56 (MacKinnon, dissenting). Such exercises are valid for initial licensing purposes for a period of 24 months following their conduct. 10 CFR Part 50 App. E,1 IV.F.1 (52 Fed. Reg.16,823, May 6,1987).
3/ In their place, over 1000 members of the Local Emergency Response Organiza-tion (LERO), created by LILCO to compensate for the absence of state and local gov-ernment personnel, were exercised along with personnel from LERO contractors such as bus and ambulance companies.
4/ Suffolk County went so f ar as to enact a criminal ordinance about 75 days before the exercise which would have made it a crime punishable by up to a year in Suffolk County jail and a fine of up to $1000 to participate in the exercise (or potentially even in drills leading up to the exercise). This chilling ordinance, which was in effect during the final exercise preparation period, was enjoined as unconstitutional by a federal court on the evening of February 10 just 60 hours6.944444e-4 days <br />0.0167 hours <br />9.920635e-5 weeks <br />2.283e-5 months <br /> before the start of the exercise.
Long Island Lighting Co. v. County of Suf folk,628 F.Supp. 654 (E.D.N.Y.1986).
}/ For instance, because of questions about legal authority, sirens and EBS messages were not sounded in the February 13 exercise and limits were placed on the deployment of traffic guides.
l I
l validity. And within these constraints the FEMA-approved exercise scenario and objec-tives were consistent in scope and thoroughness with those of previous " full participa-I tion" exercises. See PID at 51.
B. The Partial Initial Decision The Partial Initial Decision contains the first substantive interpretation of the complex provisions of 10 CFR Part 50 Appendix E,1 IV.F.1 defining the scope of " full participation" exercises.S' Under the theory in the PID (slip op. at 10-21), initial offsite emergency preparedness exercises, in order to qualify as " full participation" ex-ercises sufficient for licensing, are required to be more comprehensive than either (1) swasequent biennial " full participation" exercises or (2) any exercises conducted prior to a 1984 amendment to 1 IV.F.1. This theory, however, fails to account for lim-iting principles existing in that regulation, such as whether a potential exercise ele-ment involves " major observable portions" of the plan (1 IV.F.1 footnote 4), or for uni-form historic practice by FEMA and NRC under the regulation.2! Indeed, the only principle of limitation on the scope of at least an initial exercise acknowledged in the PID is the direct requirement of 1 IV.F.1 that the aspects of an emergency plan to be exercised "must be reasonably achievable without mandatory public participation."
Applying this novel and unsubstantiated theory to the 1986 Shoreham exercise, the Licensing Board, while rejecting many of Interveners' claims, found the scope of that exercise to be deficient in four respects since, in its view, the activities omitted would have been " reasonably achievable":
j/ The full text of 10 CFR Part 50 Appendix E,1 IV.F.1, both as it exirts now and as it existed prior to amendment in 1984,is appended as Attachment 1 to this motien.
J/ Between the regulation's initial promulgation in 1980 and its amendment in 1984, its provisions for both initial and subsequent " full participation" exercises were basi-cally identical to those now applying specifically to initial exercises. i i
l
-G-
- 1. Direct contact should have been made with the then primary EBS station, WALK, rather than a call having been made to a simulated station (PID at 27-28);
- 2. Participation should have either been secured from more school districts or more definitive documentation obtained of their refusal to participate (PID at 37-41);
- 3. A test of ingestion pathway response should have been under-taken (PID at 42-44);
- 4. Testing of the capability to assist special facilities should have included (a) direct evaluation of LILCO's ability to com-municate directly with actual special f acilities instead of sim-ulated ones and (b) direct testing of the preparedness of am-bulance and ambulette companies (PID at 49).
In reaching its conclusion the Licensing Board accepted and applied, for initial full power licensings only, an Intervenor proffered interpretation of a " full participa-i tion exercise" which the Board concedes to be more stringent than that which would apply to subsequent full participation exercises for plants already in commercial op-eration. PID at 10-21, esp.11. This interpretation is claimed by the Licensing Board to be supported by " clear language" (PID at 19) and the structure of 1 IV.F.1 (PID at 11-13).8 This interpretation is simply wrong. It requires anyone relying on it to ignore I
! material provisions of 1 IV.F.1, particularly footnote 4.E It is totally unsupported by 8/ But, the PID concedes, at another point, that the definition of a " full participa-tion" in 1 IV.F.1 is " ambiguous." PID at 15.
9/ The PID argues that its conclusion about the requirements f.or an initial full par-ticipation exercise "makes it unnecessary to consider" the contribution of footnote 4 to 1 IV.F.1 to the definition of a full participation exercise. PID at 20-21. This construc-tive elimination of footnote 4 eliminates consideration of whether any given element included in or excluded from an exercise corresponds to a " major observable portion" of an emergency plan. However, " harmonizing" potentially conflicting provisions of a regulation by reading out inconvenient ones cannot be squared with either logic or the basic canon of construction that effect is to be given to as many aspects of a statute or regulation as possible in giving it a harmonious, comprehensive meaning. E.g., McCuin
- v. Secretary of Health and Human Services,817 F.2d 161,168 (1st Cir.1987).
) i l
the record of the 1984 rulemaking on which it is supposedly premised. It ignores the !
consistent agency practice ever since 1980, testified to by NRC and FEMA, of not dis -
1 tinguishing between initial and subsequent exercises for purposes of determining wheth-er they qualify as " full participation" exercises. And, as the Licensing Board recog-nized, it requires ignoring (if it does not overtly contradict) consistent NRC and FEMA written guidance. PID at 20 n.11 (cont'd.). )
The effect of the Licensing Board's ex post facto redefinition of a " full partici-pation" exercise is to cast a presumptive pall over the effectiveness of the 1986 exer-cise for purposes of full power licensing for Shoreham. Under the PID, even a perfect ,
performance by LILCO in the 1986 exercise would be insufficient to permit issuance of a license authorizing operation above 5% of rated power. The irony of that fact is ines-capable, especially since LILCO agreed +o perform every exercise function requested of it by FEMA. The prejudice to LILCO is exacerbated by the fact that the supposedly expedited litigation of the 1986 exercise has already consumed thus far over 22 months of the nominal 24-month period of effectiveness of the exercise for licensing purposes
- i.e., so much time as to virtually pre-empt any possibility of corrective action, ab-sent speedy and specia'lly expedited redress by this Appeal Board or the Commission.N Absent such redress, it appears that LILCO will be condemned purely by the pas-sage of time to have to hold another full participation exercise for Shoreham, with as- i yet undefined possibilities for further litigation, as a precondition to full power 1_0/ . Indeed, LILCO even volunteered in the exercise planning process to test one area
-ingestion pathway - whose omission was criticized by the Board in the PID. FEMA did not accept LILCO's offer. See PID at 43-44.
11/ . Under the normal schedule for review, final briefs are not even due until at least 80 days following the decision being appealed,10 CFR S 2.762, or until about March 3, 1988. By that time, of course, the 1986 exercise will be moot.
licensing of Shoreham. If that litigation is allowed to proceed at the same pace as the current proceeding, LILCO could find itself condemned to repeat the same cycle forev-er, since the Commission would apparently be unable to complete the litigation on the exercise within the period of effectiveness of the exercise. See Affidavit of Charles A.
Daverio, attached,114, 7.
For these reasons, stated more fully below, LILCO believes that the Licensing Board's Partial Initial Decision was incorrect both as to the interpretation of the perti-nent regulation,10 CFR Part 50 Appendix E, T IV.F.1, and as to the application of the record in the four specific areas in which the PID holds the 1986 exercise to have been deficient in scope. LILCO believes that the PID presents issues of sufficient gravity, novelty and pervasiveness, relating directly to the construction of one of the Commis-sion's rules, that it should be certified to the Commission. In addition, LILCO suffers a serious likelihood of grave and irreparable harm potentially, an infinite cycle of a two year delays in ultimate licensing of Shoreham - simply from delay in reversal of the decision; thus truly expedited review, whether by the Commission ce the Appeal I
Board, is necessary. In the event the Appeal Board determines to retain jurisdiction itself, LILCO requests that it set the matter for truly expedited briefing, argument and decision in accordance with the schedule proposed at the end of this motion.
III. ISSUES FOR CERTIFICATION LILCO requests that certain issues be certified immediately to the Commission.
LILCO's basis for believing that the Licensing Board's construction of Appendix E is in-correct as a legal matter is stated in Part IV.A. immediately below; its basis for believ-ing that the record does not support the PID's conclusions is stated in Part IV.B; the legal basis for certification is set out in Part V; and the need for expedition in resolving the major issues arising out of LBP-87-32 is set forth in Part VI.
i The questions which LILCO requests be immediately certified are the following:
- 1. Were the 1984 amendments to 10 CFR Part 50 Appendix E,1 IV.F.1 intended to alter the substantive definition of a " full participation" $
emergency preparedness exercise (previously referred to in Appen-dix E as a " full scale" exercise), as distinguished from the frequency of such exercises and the timing of participation by states having more than one nuclear plant located within 50 miles of their bor-ders?
]
- 2. If so, were the changes intended to raise the requirements per- 1 taining to the initial exercise for any given site relative to those for j subsequent biennial. exercises, such that an initial exercise which j would have qualified as a " full participation" biennial exercise (or as a " full scale" exercise under the previous regulations) might no longer qualify as a " full participation" initial exercise?
f
- 3. Does the provision of footnote 4 of Appendix E, that '" full participa-tion' includes testing the major observable portions of onsite and offsite emergency plans" operate as a principle of limitation on the required scope of initial and subsequent full participation exercises, j' such that their required scope extends only to such " major observa-ble" portions of emergency plans?
- 4. Is there any provision in 1 IV.F.1 of Appendix E, other than that the scope of testing be " reasonably achievable without mandatory public participation," which limits the required scope of initial exercises required for issuance of an initial license to exceed 5% of rated power at a reactor site?
- 5. Under the requirements of Appendix E, T IV.F.1, was the Licensing Board correct in its conclusion that the four following items individ-ually or collectively strip the February 1986 Shoreham exercise of the otherwise applicable title " full participation exercise," when the uncontradicted testimony was that FEMA had approved each of the exclusions from or methods of testing listed in items 1-4, and that l the scope of the Shoreham exercise was as comprehensive as any I
which had been performed in the pertinent FEMA region up to that point: j (a) The placement of an actual telephone call to a simulated (rather than actual) EBS station when (by agreement) to EBS message was to be broadcast, (b) Reliance on resolutions and other, less formal information as )
evidence of the unwillingness of school districts which were I not cooperating in advance emergency planning to participate in the Shoreham exercise, rather than obtaining in addition formal letters of refusal from such school districts, '
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(c) Exclusion of ingestion pathway objectives when (1) such ob-jectives had systematically been excluded from exercises for other plants in New York State and (2) FEMA declined LILCO's offer to include such objectives at Shoreham, and (d) Placing of actual telephone calls to simulated rather than ac-tual special facilities, and graded observation of ambulance and ambulette drivers but not other personnel in those com-panies?
IV. THE PID IS FUNDAMENTALLY IN ERROR IN CONCLUDING THAT THE SHOREHAM EXERCISE DESIGN WAS NOT SUFFICIENT FOR A " FULL PARTICIPATION" EXERCISE A. The Licensing Board's Interpretation of the Requirements of the Term " Full Participation Exercise" as Applied to Initial Exercises Is Incorrect It is not the purpose of this motion to present a full-blown argument on the mer-its of this or of any other issue raised by the substance of the PID. Those are properly to be presented in an expedited brief on the merits. Rather, the intent of this sec-tion is to demonstrate that there are significant issues involving the Board's interpreta-
- tion of a confusing regulation,10 CFR Part 50 Appendix E,1 IV.F.1, and a sufficiently high probability that the PID is in error on these questions to justify the procedural re-lief requested in this motion.
The Licensing Board's theory of the requirements for an initial " full participa-tion" exercise, set forth on pages 10-21 and especially pages 10-13 of the PID, differen-tiates between initial and subsequent " full participation exercises" on two principal bases. First, only the initial exercise unconditionally requires the participation of each state and local government within the inhalation pathway EPZ and of each state within the ingestion pathway EPZ. Second, only the initial exercise explicitly requires testing 12/ For a proposed briefing schedule, in the event the Appeal Board retains jurisdic-tion, see Prayer for Relief, p. 26 inf ra.
of "as much of the licensee, State and local emergency plans as is reasonably achievable without mandatory public participation...." The PID states that this distinction became manifest in a 1984 revision to 1 IV.F.1 of Appendix E. PID at 19.
The PID's interpretation of 1 IV.F.1 suffers from the following major defects:
- 1. Footnote 4 to 1 IV.F.1 states that "' full participation' includes testing the major observable portions of onsite and offsite emergency plans...." Footnote 4, including that definition, applies throughout 1 IV.F.1, to both initial and subsequent ex-ercises. The effect of that sentence - if it is to be given any meaning - is to confine the scope of exercises to " major observable portions" of emergency plans. The effect of the Board's interpretation of 1 IV.F.1 is to read any limitation as to materiality out of the regulation as applied to initial exercises, leaving the question of whether an ele-ment is " reasonably achievable without mandatory public participation" as the only guiding principle of limitation. Plain examination of the text of the regulation indi-cates that the PID's omission of the lin.itation of the regulation to " major observable portions" of emergency plans is incorrect.
- 2. The 1984 rulemaking amending 1 IV.F.1, which the PID construes as having erected special, additional requirements for initial exercises, does not support the PID's conclusion. The stated purpose of the rulemaking was to provide more flexibility in the timing and frequency of exercises other than initial exercises, in response to com-plaints from states and an emergency management professional association that the then-annual exercise requirements were wastefully onerous and diverted attention from more productive work. There is no reference, in either the notices presaging the rule change, 47 Fed. Reg. 29,252 (July 6,1982), 48 Fed. Reg. 33,307 (July 21,1983), or in the one promulgating the rule, 49 Fed. Reg. 27,733 (July 6,1984), to any intent that the amendment affect anything other than timing requirements of exercises for operating
plants. There is no reference whatever to any intent to amend to the definition of a
" full participation exercise" for initial (or other) exercises. Further, there is no refer- I ence whatever in any of the 21 sets of comments filed in the rulemaking record, nor in the NRC Staff's regulatory analysis of the proposed rulemaking, to any intent to change the requirements for initial (or other) " full participation" exercises.N
- 3. Prior to the 1984 rulemaking, the requirements for initial and subsequent
" full participation" exercises in 1 IV.F.1 were basically identical. The treatment of initial exercises was not amended by the 1984 rule. Thus, even if the 1984 rulemaking is considered to have relaxed the substantive requirements (as well as the required fre-quency) for post-1984 exercises at operating plants, it does not follow that the defini-tion of a " full participation" exercise itself changed, much less that the requirements applicable to initial exercises were somehow increased. As the PID acknowledges, the scope of the Shoreham exercise was "as comprehensive as any conducted in FEMA Region II [which includes New York]'up to that time." PID at 51. The PID thus ig-nores the obvious conclusion: that the requirements for the scope of initial exercises have not changed by the 1984 rulemaking and thus that an exercise which, like that for Shoreham, was consistent with pre-1984 exercises in Region II, is adequate as an initial exercise conducted since 1984.
13/ These comments and regulatory analysis are not in the record of the proceeding before the Licensing Board. However, they are public documents within the Commis-sion's files, and pertinent to the issues ;he Commission and its staff thought they were ,
addressing in the course of the rulemaking. One typical comment of particular interest !
filed by the State of New York, Department of Health (Attachment 2 hereto) shows a l characteristic lack of concern with any distinction between initial and subsequent full participation exercises. The New York comment is especially interesting, in the con-text of Interveners' testimony about the need for exceptionally broad initial exercises (s_ee PID at 17-18), since it includes specific consideration of Shoreham (Attachment 2 at 3), and since it shows a total absence of planned ingestion pathway exercises for f a-cilities located in New York State Qd., Table). l
I l
l
- 4. As a related matter, the PID's conclusion is inconsistent with the opinions of the expert Staffs of NRC and FEMA, testified to in the proceeding that the Shoreham exercise constituted a full participation exercise. The NRC Staff witnesses expressly testified that in their view the Shoreham Exercise was "a ' full participation' exercise." NRC EX Exh.1 (Test. Cont. EX 15/16), at 7. The FEMA witnesses, as is their practice, declined to offer a formal legal opinion on whether the Shoreham Exer-cise met the requirements of the Commission's regulations. Instead, they offered testi- l many which tracked the language of 10 CFR Part 50 App. E,1 IV.F.1 n.4 stating that (1) the " exercise objectives required mobilization of LILCO's Local Emergency Re-sponse Organization (LERO), its personnel and resources in sufficient number to verify the capability to respond to an accident scenario;" (2) the " exercise enabled FEMA to evaluate the integrated capability and a major portion of the basic elements existing within the LILCO Transition Plan and LERO organization;" and (3)"[t]he Shoreham ex-ercise was equal or greater in scope compared to an other full-scale exercise evalu-ated by FEMA Region II to date." FEMA EX Exh. 5 at 105.
- 5. The PID's conclusion is irreconcilable with regulatory guidance issued by FEMA and NRC on the scope and conduct of exercises. The PID's dealing with this fact by cursory dismissal of that guidance (PID at footnote 11 (cont'd. at 20), on the ground that the guidance f alls to distinguish between initial and subsequent exercises, ignores the obvious possibility that the expert regulators who wrote the guidance documents did -
I not perceive any difference, for purposes of the definition of a full participation exer-cise, between initial and subsequent exercises. It also ignores the fact that important parts of that body of guidance, particularly NUREG-0654/ FEMA-REP-1 and the substan-tively equivalent predecessors of FEMA Guidance Memorandum PR-1, were issued prior to the Commission's 1984 rulemaking - i.e., during the period when the phrase "as
. q much as reasonably achievable ..." was found in the regulation applying to exercises for both NTOLs and operating plants. The Board's alternative distinction -- that guidance is'only-that - ignores the fact that official agency guidance still represents published thinking of agency experts and is intended to be relied upon.
In short, the Board's reasoning, when applied an exercise which, like Shoreham's, was undisputedly as comprehensive as other full participation exercises held in the per-tinent FEMA region, cannot be sustained as a matter of law.
B. Even Assuming That the Test of a Full Participation Exercise Is More Stringent for an Initial Exercise Than for Subsequent Exercises, the Board's Faulting of the Four Omitted Areas Was Clearly Erroneous As with the issue of the proper test of a " full participation" for initial exercises, it is not the purpose of this discussion to demonstrate definitively that the PID erred in concluding that the exclusion of four elements from the Shoreham exercise, or any of them, constituted a " fundamental flaw" in the exercise. Rather, its sole goal is to dem-onstrate that, at the threshold, the likelihood of error is sufficiently high as to require the procedural relief requested by this motion.
Even if the PID were correct in assuming that a higher standard exists for initial than for subsequent exercises, it does not follow, and the Board's opinion does not dem-onstrate, that the four cited omissions amount, individually or collectively, to a "funda-mental flaw" in the offsite emergency plan for Shoreham. The specific reasons follow.
- 1. Exercise design itself (as distinguished from exercise results or perfor-mance), without at least a showing that the exercise departed in some material f ashion from other exercises, does not demonstrate the existence of " fundamental flaws" in an emergency plan.N Here, the testimony of FEMA -and the .NRC, accepted by the 14/ The Court of Appeals, in the UCS case, supra - the only basis for litigating exer-cise results at all - accepted the Commission's argument that an " exercise is only rele-(footnote continued)
Board, was that the Shoreham exercise was as comprehensive as any that had been held in FEMA Region II. PID at 51. As a matter of logic it is impossible to conclude that an exercise of such undisputedly high quality is so deficient in design that, without even considering the nature of the participants' performance, it reveals a " fundamental flaw" in a licensee's offsite emergency plan. In admitting Interveners' Contentions EX 15 and EX 16, which gave rise to this litigation, over the objections of LILCO and FEMA, the Licensing Board assured all parties that it "had not opened the hearing to is-sues of FEMA's conduct and design of the exercise" but rather would limit itself to de-termining whether the exercise, as designed, complied with the NRC's regulations.
LBP-86-38A, 24 NRC 819, 827 (1986). Unfortunately, the Board has done no such thing, nor could it have: as LILCO argued unsuccessfully at that point, the Board's distinction was a chimerical one, and the PID has borne out LILCO's fears. Contentions EX 15 and EX 16 were improperly admitted and the results of that error are better recognized late (footnote continued) vant to its licensing decision to the extent that it indicates that emergency plans are fundamentally flawed," and endorsed the Commission's exercise of its discretion to j adopt that standard as a substantive licensing standard. 735 F.2d at 1448. The Com-mission,in revising its regulations to comport with the UCS case, indicated that it was the "results of relicensing emergency preparedness exercises" that it intended to admit for litigation. 50 Fed. Rec.19,323 (May 8,1985)(emphasis supplied). Further, in shaping the preliminary contours of this litigation in CLI-86-11, the Commission again restricted the intended focus of exercise litigation to exercise results as indicators of fundamental flaws in emergency plans:
Under our regulations and practice, Staff review of exercise results is consistent with the predictive nature of emergen-cy planning, and is restricted to determining if the exercise revealed any deficiencies which preclude a finding of rea-sonable assurance that protective measures can and will be taken, i.e., fundamental flaws in the plan.
23 NRC 577,581 (emphasis supplied).
i than never.E
- 2. Even assuming that exercise design can reveal defects in an emergency plan sufficiently important to constitute a " fundamental flaw," the Licensing Board's finding concerning the four omissions from the Shoreham exercise falls to analyze the materiality of these omissions. It is impossible to determine from the PID whether the i I
J_5/ The Appeal Board refused an appeal by FEMA from the Licensing Board's admis-sion of Contentions EX 15 and EX 16 on procedural grounds. ALAB-861,25 NRC (March 2,1987). LILCO supported FEMA's appeal. Judge Edles, the only Board member to desire to reach beyond the Appeal Board's narrow ground of decision, stated in his separate opinion:
FEMA appears concerned that the Licensing Board may, in due course, "second guess" its design of the Shoreham exer-cise, i.e., the Board may conclude that the exercise was in-sufficient to demonstrate that the LILCO plan will work.
The contention stage of a proceeding is far too early to ad-dress that problem. If, as FEMA and the Staff seemingly be-lieve, the record, once developed, will reveal that the exer-cise fully satisfies all NRC requirements, that will be the end of the matter. If the Board determines that the LILCO plan is inadequate in a way that implicates the design of the exercise itself, however, some potential admittedly may arise for a conflict between LILCO's need to comply with the Commission's regulations, on the one hang, and FEMA's unquestioned authority to administer its exercise review program, on the other. he Commission can address that issue if and when it arises
- 7. The Interveners are only entitled to litigate matters that are material to the Commission's licensing decision. Plainly not every emergency planning element need be evaluated, f and nothing in our opinion should be construed as deciding i
that discrete emergency planning elements are or are not material.
(ALAB-861, slip op, at 27.) The concerns which Judge Edles dismissed at that time as premature have now materialized fully. Judge Edles also aptly noted that " applicant's dilemma" in finding that criticisms of an exercise design, over which it lacked ultimate control, were being used in an attempt to invalidate the exercise, without any attention '
to its actual performance. (Ld.).
4
Licensing Board thought that omission of each of the four omitted elements was suffi- ;
ciently material to constitute a " fundamental flaw," or whether that conclusion applies only in the aggregate. This failure to articulate and analyze fails to meet the require-ments of materiality set out in the UCS case and implementing Commission regulations and decisions, see footnote 11, supra. This failure to assess materiality is inherent in the PID's erroneous exclusion, in effect, of footnote 4 from 1 IV.F.1 in the context of initial exercises. As a result the Board fails to assess whether elements included in or excluded from exercises constitute " major observable portions" of emergency plans.N This failure to assess materiality leaves any determination that exercise design reveals a " fundamental flaw"in an emergency fundamentally without rational basis.
- 3. The Board's determinations that exclusion of the four designated individual elements constituted a " fundamental flaw" is improper either because accomplishment of the individual elements was not " reasonably achievable" or because the element was not material to the exercise, or both,
- a. EBS (PID at 27-28): The Board's conclusion that LILCO should have communicated directly with WALK rather than placing, as it did, a real telephone call to a location simulating WALK, suffers from several defects. First, it recites no basis to conclude that arranging for WALK's participation in an EBS telephone call in the final hours between the granting of an injunction by the District Court on the evening l of February 10 and the conduct of the exercise on February 13, would even have been
" reasonably achievable" to arrange. Second, the " omission" is immaterial to the out-come of the exercise: compared to the inability to broadcast an EBS signal (which the 1_6/ Indeed, the Board admits that its understanding of 1 IV.F.1 "makes it unneces-sary" for it to consider the application of footnote 4, with its " major observable por-tions" language, in considering the adequacy of an exercise's design. PID at 20-21.
Board properly found to have been impracticable because of Intervenor-caused legal au-thority and threat-of prosecution problems), the placing of a telephone call by LERO to i
one location rather than another is a clearly inconsequential difference. Third, the Board's assertion that " accurate communication of the text of EBS messages to the radio station which is to broadcast them ... is not a mechanleal activity which appro-priately can be covered in a FEMA-REP-10 test," PID at 27-28, is not supported by the record. It conflicts with both LILCO's and FEMA's testimony, and is not supported by any analysis.N To the extent that the Board seeks to bolster its conclusion by general concerns about communications capability on the basis of actual exercise performance garnered from other areas (see PID at 28 & note 14), the Board is engaging in classic, improper reasoning by hindsight. Its conclusion should be reversed.
l
- b. Schools (PID at 34-42): The Board faults LILCO for in effect not having secured more definitive refusals from school districts concerning their will-ingness'to participate in the 1986 exercise. As the PID recites in passing, PID at 38, numerous school districts had sent in resolutions (which were attached to Suffolk Coun-ty's prefiled testimony) indicating their refusal to cooperate in emergency planning generally for Shoreham (though they, admittedly, did not specifically mention the exer-cise); and the consensus testimony, even from Interveners, was that further efforts by LILCO to obtain broader participation from schools in the exercise likely would have failed. PID at 38-39. In essence, the Board has apparently found a " fundamental flaw" sufficient to prevent issuance of a license for Shoreham in the informality of l_7/ Indeed, the effect of the Board's conclusion here would override consistent FEMA practice. FEMA witnesses testified that in seven years of conducting exercises, they had sent an evaluator to a radio station to observe its performance only once (in 1982 or 1983). Tr. 8526 (Kowieski).
9
documentation of the concededly accurate evidence of the unwillingness of school dis-tricts (other than Shoreham-Wading River) to cooperate in the exercise. Apparently, this " fundamental flaw" could be cured merely by obtaining more explicit letters of re-fusal since such letters would illustrate specifically why broader school participation was not " reasonably achievable." LILCO submits that this example illustrates graphi-cally both the fallacy of exercise design as an indicator of " fundamental flaws" in an emergency plan and the unreasonableness of using a " reasonably achievable" test to the exclusion of the other criteria in 1 IV.F.1.
- c. Ingestion Pathway (PID at 42-44): The Board's own test of " reason-able achievability" is not satisfied by the PID's insistence on inclusion of ingestion path-way issues, at least if that test presumes productive results. The uncontradicted testi-many in the proceeding, acknowledged by the Board, was that ingestion pathway exercises are not uniformly performed, and that New York State has habitually not per-formed them because of inadequate guidance from FEMA. PID at 43-44.E To make matters worse, the evidence showed, and the Board acknowledged, that LILCO had requested to perform an ingestion pathway exercise but that FEMA, in an exercise of its expert discretion (and consistently with its design of other exercises) had declined to include an ingestion pathway portion of the exercise. Id. at 44.E Here the Board's conclusion ignores appropriate deference to expert agency practice and discretion and
[ effectively punishes LILCO for an omission the Company itself sought to avoid.
l M/ Such guidance as exists on this issue from FEMA - Guidance Memorandum IN-1
-- was in draf t form at the time of the 1986 exercise and remains in draf t form today.
19/ FEMA's conclusion on this, as in other exercise design matters, was concurred by the NRC through a pre-exercise RAC review of proposed exercise objectives and sce-natio.
l 1
- d. Special Facilities (PID at 46-50): Here, the PID faults the exercise j i
for not having evaluated communications with special facilities (PID at 48-49), though l l
the Board gives no reason, other than the " reasonable achievability" test, for apparently disagreeing with FEMA expert witnesses who testified, as the PID acknowledges at 49, that such coordination did not have to be tested during the first exercise of a plan.EI Once again, without the measure of materiality inherent in the " major observable por-tion" test disregarded by the Board, the " reasonably achievable" test provides a rud-derless, hindsight-oriented standard for determining the adequacy of exercises. This is not only bad law, it is bad policy. The same is true for the Board's criticism of FEMA for not having tested employees of ambulance and ambulette companies other than drivers about their knowledge of the LILCO plan. The mere fact that such testing could arguably have been done does not make its omission a " fundamental flaw" disqual-ifying an emergency plan from eligibility for licensing.E 20/ Here again, the PID's view of " reasonable achievability" as the only determinant of whether an element of an emergency plan should be included in any specific exercise ignores a fundamental of FEMA exercise planning: that there is a list of standard ob-jectives, but that not all of them need (or can) be tested in any single exercise. FEM A's guidance is to ensure that all standard objectives are tested over a six year cycle, with various of the more important objectives being tested more frequently. The PID's sum-mary rejection of the relevance of FEMA guidance (PID at 20, footnote 11 (cont'd.))
condemns it to engage in an analysis divorced from eight years of practice and i
interagency coordination. The Commission's regulations, which the PID attempts to in-terpret, are not framed in such a vacuum (see, e.g., reference to NUREG-0654 in the 1984 rulemaking notice,49 Fed. Reg. 27,734 col 2); nor should analyses of them be.
2_1/ Further, the PID virtually takes over the exercise planning functions in this area from FEMA and the NRC Staff: it not only recites areas that it believes need to be ex-ercised, but also the nature of the observations to be made, and of whom. This type of prescriptive hindsight scrutiny, while perhaps intended to be helpful, clearly risks invading the province of expert staffs. It also bears out far more the fears about the possibilities for delay inherent in post-exercise litigation expressed in the dissent in the UCS case, supra, 735 F.2d 1437,1455 n.6, than it does the majority's assurances about the effectiveness of expedited review, l_d. at 1448 n.21.
_________________~
l In short, even if the Commission did intend to create a different standard for r judging initial exercises later on in the 1984 rulemaking, the Board's translation of that standard so as to omit any criterion other than " reasonably achievable"- and in partic-ular, its ignoring of any standard of materiality - is both incorrect and unworkable, as the examples presented here illustrate.' !
l V. THE ISSUES ARE OF SUFFICIENT GRAVITY AND NOVELTY TO COMPEL CERTIFICATION TO THE COMMISSION The PID holds (a) that a different standard exists under the pertinent Commis-sion regulation,10 CFR Part 50 App. E,1 IV.F.1, for initial full participation exercises than for subsequent ones, and (b) that the only basis for excluding any aspect of an offsite emergency plan from an initial exercise is a determination that testing that ele-ment is not " reasonably achievable" (thus apparently eliminating any consideration of materiality in determining the sufficiency of the scope of initial exercises). These holdings, and their translation into the judgment that exclusion of various' elements from the 1986 Shoreham exercise prevented that exercise from being the " full partici-pation" exercise required for licensure at above 5% of rated power, raise fundamental and novel questions of law and policy about the implementation of the Commission's emergency planning regulations. The provision on which the PID turns has never been construed before; and the expansive construction given in the PID will drastically af-feet not only Shoreham but every remaining NTOL f acing its initial offsite exercise. As shown below, the decision merits immediate certification to the Commission.
A. 10 CFR S 2.785(d)
Section 2.785 of the Commission's regulations describes the functions and au-thority of the Atomic Safety and Licensing Appeal Board. Subsection (a) authorizes the
Appeal Board to act on behalf of the Commission in reviewing licensing proceedings.
Subsection (d), however, provides that in the proceedings described in subsection (a),
an Atomic Safety and Licensing Appeal Board may, either in its discretion or on direction of the Commission, certify to the Commission for its determination major or novel ques-tions of policy, law or procedure.
10 CFR S 2.785(d)(1987).
B. Grounds for Certification Under S 2.785(d)
Commission case law reveals two primary types of situations in which certifica-l tion is appropriate under S 2.785(d): when the result of failure to certify an issue to the Commission is avoidable delay and prejudice to the licensee's interest; and when the consequences of decision on a novel question reach beyond the case in which the ques-tion arose. Each of these f actors applies here.
A primary justification for the authority encompassed in S 2.785(d)is the need to maintain efficient licensing proceedings.E In its Statement of Policy on Conduct of Licensing Proceedings (hereinaf ter, " Statement of Policy"), the Commission provides the following guidance:
2_2/ The efficient management of licensing proceedings involves not only the expedi-tious consideration of licensing applications but also the effective use of Commission resources. In Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant Units 1 and 2), ALAB-681,16 NRC 146 (1982), the Appeal Board certified the question of whether a previous Commission order was intended to deprive adjudicatory boards of the jurisdiction to consider quality assurance and quality control issues. The Appeal i Board explained that the issue was likely arise again in the same proceeding and that {
" deciding the jurisdictional questions now may ultimately save considerable Commission {
resources and avoid delay in the licensing process for the Diablo Canyon facility." Id. l at 149. )
If a significant legal or policy question is presented on .
which Commission guidance is needed, a board should promptly refer or certify the matter to the Atomic Safety and Licensing Appeal Board or the Commission. A board should exercise its best judgment to try to anticipate crucial issues which may require such guidance so that the reference ,
or certification can be made and the response received with-out holding up the proceeding.
CLI-81-8,13 NRC 452, 456-57 (1981).
In United States Energy Research and Development Administration Project Man-agement Corporation Tennessee Valley Authority (Clinch River Breeder Reactor),
CLI-76-13, 4 NRC 67 (1976), the Commission directed the Appeal Board to certify to it a question whether contentions should be admitted on alternatives to the breeder reac-tor program. The Commission wrote:
No party has a vested right to the continuing effec-tiveness of an erroneous Licensing Board ruling which hap-i pens to favor it. In the interest of orderly resolution of dis-putes, there is every reason why the Commission should be empowered to step into a proceeding and provide guidance on important issues of law and policy.... (H]ere the decision of -
the Licensing Board itself threatened substantial delay for the proceeding, delay which could not be captured by later cor-rection of error.
Ld. at 76.
The desirability of avoiding delay in licensing proceedings from ambiguous or inconsistent regulations and regulatory guidance has motivated the Appeal Board to certify issues previously in this very case. In ALAB-769,19 NRC 995 (1984), the Appeal Board certified to the Commission two questions, concerning (1) the correct interpreta-tion of the terms "important to safety" and " safety-related" as used in the Commission's quality assurance regulations and (2) the need for a NEPA statement before issuance of a low power license. In certifying the "important-to-safety / safety related" issue, the Appeal Board wrote:
[w]e find the existing regulations too varied and the historic industry and agency practice too diverse simply to set forth what we perceive to be the proper interpretation of the regu-lations. Furthermore, we are convinced that any disposition of this issue will have ramifications far beyond the current adjudication. As a consequence, we believe that it should be addressed in a more generic content. This can be accom-plished by certifying the matter to the Commission....
Ld. at 1000.
The Appeal Board also certified the low-power operation question, finding it to be " intimately tied" to an earlier Commission on a related issue. Id. at 1009.N The Licensing Board's decision in this case satisfies all of the tests for certifica-tion.
First, it involves a novel question of law and policy. The PID rests on a whole-cloth interpretation of a regulation never before construed, and thus presents a novel question of law with important policy ramifications. The issue is particularly appropri-ate for Commission determination since it directly involves a licensing board's percep-tion of the Commission's intentions in a relatively recent rulemaking proceeding which is pivotal to the Licensing Board's holding. The clearest, most efficient way of ascer-taining the Commission's intent is to ask the Commission itself.
Second, the PID involves potentially grave possibilities for further delay at Shoreham, which can be avoided only if the decision is timely reversed. Without any examination of the actual performance of the Shoreham offsite emergency response or-ganization in the February 1986 exercise, it potentially invalidates the exercise for 23/ See also Offshore Power Systems (Floating Nuclear Power Plants), ALAB-500, 8 NRC 323 (1978), where the Appeal Board certified to the Commission the question of !
whether it was permissible for the NRC Staff to consider Class 9 accidents in its envi- i ronmental assessment of applicant's proposal for a floating nuclear plant, because of (1) the " divergent readings" of Commission policy on the issue, (2) the issue's novelty and (3)its "likely ramifications" for other cases.
l
- - _A
i licensing purposes, without suggesting whether the omission of the particular elements can be corrected in a patchwork f ashion or whether it " tainted" the entire exercise and thus requires starting again from scratch in either event, as described in the attached ;
1 Affidavit of Charles A. Daverio at 114 and 7, the potential effect is to add a poten- '
tially infinite series of two year cycles to the length of the licensing ordeal for Shoreham. This result would frustrate the Shoreham licensing proceeding defini- I tionally. It also would be telling for the totality of Commission regulatory policy, which explicitly favors expedition in licensing proceedings generally and in this case in par-ticular, see CLI-86-11.
l Third, the decision directly has a pervasive effect. It affects not only Shoreham but every remaining NTOL plant facing its initial full participation exercise, and the
)
entire structure of joint NRC-FEMA exercise design and evaluation. If the only princi-ple of limitation on initial exercise scope is that of " reasonable achievability" -- if there is no clear principle of materiality involved for initial exercises - the already ex-pansive scope of these exercise risks being further broadened significantly, uncontrollably, and without any principle of review other than subjective hindsight. If the expertise of FEMA, recognized in the NRC-FEMA Memorandum of Understanding and NRC regulations, is to be retroactively impinged upon to the extent that Licensing Boards can feel free to tell FEMA what to sample and where to place observers, as it has done in the PID, then the PID has radically restructured interagency relationships.
Finally, a judge of this Appeal Board has explicitly recognized, in ALAB-861 (Edles, separate opinion), that if the result FEMA and LILCO feared then were to occur
- as it has - the Commission would need to resolve the matter. See footnote 15, supra.
- _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ =
. 1 For these reasons, the PID satisfies the tests of importance, novelty and gravity
' of avoidable adverse consequences justifying - in this case, virtually compelling -- cer-tification to the Commission.
VI. EXPEDITED TREATMENT OF THIS APPEAL IS NECESSARY AND REQUESTED 1 l
There is an urgent need for expeditious action on this request. The effectiveness !
of the February 13, 1986 exercise for licensing purposes expires presumptively on February 13, 1988. If a license has not issued by that time, and if an extension of the exercise's effectiveness for licensing purposes is not obtained, LILCO will have to plan, conduct and secure post-exercise review and, as permitted, litigation of that successor exercise before being able to receive a license to exceed 5% of rated power at Shoreham.b l
The Commission's procedures for review and agency litigation of relicensing l
emergency preparedness exercises, specifically reiterated in this case, f avor maximum use of expedited procedures. CLI-86-11. LILCO has repeatedly sought to expedite the review of its February 1986 exercise. Yet 22 months have passed since the day of the exercise, the maj6rity of that time in active litigation insisted upon by Interveners.
And the only pronouncement on the exercise to date has been the PID, which does not treat actual performance in the exercise. Presumably the Licensing Board, mindful of the regulation's presumptive deadline, will issue an additional PID on exercise-performance issues prior to February 13,1988.
2_4/ That contingent planning process is proceeding. Within the next few days,
. LILCO will request the NRC to request FEMA to schedule a full participation exercise for Shoreham as promptly as possible. The request will note that the scope and timing of that exercise may be affected by the outcome of this litigation.
If the PID's interpretation of 1 IV.F.1 is correct, it is possible (though not cer-tain) that the omissions faulted in it can be remedied only by holding another full par-ticipation exercise. In that event, if past is prologue, it will take considerable time --
conceivably, as much as the two plus years already invested in the February 1986 exer-cise - to plan, hold, review and litigate that successor exercise's results (see Daverio Affidavit,114, 7), and seeking an extension of the February 13, 1988 deadline on the 1986 exercise's effectiveness would make little sense. If the PID is not correct, howev-er, then the scope of the 1986 exercise was adequate. In that event (or if any omissions can be remedied in a partial remedial exercise), and if LERO's performance in the 1986 exercise is found to have been either adequate or susceptible of straightforward l remediation, then future exercise requirements would be significantly diminished as an impediment to full power licensing, and any necessary extension of the presumptive 24-month effectiveness period could be considerably shorter. See Daverio Affidavit, 15, l
- 6. In that event, an extension of the effectiveness the February 1986 exercise, if and 1
to the extent needed, might well be justified.
j But until LILCO knows definitively whether the February 1986 exercise's struc-ture was viable, it now has to presume that the Licensing Board's interpretation of re-quired initial exercise scope is valid. That presumption may require LILCO to conclude i
that it must conduct another full participation exercise and receive approval of its per-formance in it before being granted a license. That assumption, with its implications for delay, is of the profoundest importance to the Company. In addition to the carrying charges of upward of $30 million per month on its nearly $5 billion invested in the plant, the New York Public Service Commission has recently suggested in a December 3,1987 decision (Attachment 3 hereto) that unless it receives indications by April of 1988 sufficient to give it high confidence that Shoreham will be in commercial 9
service prior to the 1989 summer peak,it may attempt to force LILCO through the rate process to abandon Shoreham. See Daverio Affidavit,117(b),(c).
A failure to review the Licensing Board's decision in a timely fashion will force LILCO to make pessimistic, and potentially unwarrantedly pessimistic, assumptions. In particular, the decision about whether the duration of the Commission's internal litiga-tion process will deprive the February 1986 exercise of any value looms large in the im-mediate balance.' If the PID.is not reversed sufficiently prior to February 13,1988 to enable LILCO to seek an appropriate extension of effectiveness of the February 13, 1986 exercise, that effort cannot be undertaken and the value of over two years of gru-eling work by dozens upon dozens of dedicated persons may have been squandered. See Daverio Affidavit,18.
VII. PRAYER FOR RELIEF For the reasons outlined above, LILC respectfully requests the Appea.' Board to immediately certify the issues from the PID raised in this paper to the Commission.
In the event the Appeal Board declines to certify these issues to the Commission, LILCO requests that it immediately set an expedited briefing, argument and decision schedule as follows:
LILCO brief due December 30,1987 (service in hand)
Other Parties' briefs due January 8,1988 (service in hand)
Oral Argument during the week of January 11, 1988 Decision (in summary form, if necessary) by January 29,1988 For the reasons outlined above, a schedule of this degree of alacrity is needed to achieve a timely result, whatever that result may be. One of the reasons for the detail
of this motion has been to provide notice to the parties of major arguments, thus providing them time to prepare to respond.
Respectfully submitted, W.' Taylor Reveley, III I Donald P. Irwin Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATE: December 19,1987
Attachment 1A 10 CFR PART 50, APPENDIX E (1984)
I
- h. .-... ..-a.. . . ____________.___m__.m._____ m._ ____ ____________
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ChePt er I-Nuclear itegulatory Commission Part 50, App. E x!!!. H AwouMo. STon ACE AND Set!PPINo XVII. QU4 TTY As5URANCg RECORD:
3fessures shall be established to control Suffielent records shall be mamtamed to storage. shippmg. cleanmg furnish evidente of actmties affeetmg qual.
[ne handling,nd preservation of matertalsty. and Theequipment records shall melude at least the m accordance with work and inspection follom mg: Operstmg logs and the results of instruettons to prevertt damage or deteriora. reviewa mspections. tests. audits, monitor.
non. When necessary for partteular prod. :ng of work performance, and matertals uets. special protective environments. such analyses. The records shall also anchde a inert gas atmosphere. specifte moisture closely-related data such as Quaitfleations of
'ontent levels, and temperature levels, shall personnel procedures, and equipment. In-be specified and provided. 4pection and test records shall. as a mann-mum. Identify the mspector or data record-XIV. INsPreT1oN. TEST. AND OrrmATINc *r. the type of observation. the results, the STtTt s seceptabihty. and the action taken m con-nection with any deficiencies noted. Records Measures shall be etabitshed to indicate. shall be i dentifiable and retrtetable. Con.
by the use of marKmgs such as stamps, tags. Hstent with applicable regulatory require.
g33els. routmg cards. or other suitable ments the applicant shall establish require.
means the status uf mapections and tests ments concernma record retention, such as performed upon individual items of the nu. duration. Location and assigned responsibili.
clear power plant or fuel reprocessing plant. t y.
These measures shall protide for the identi.
fication of items which have satisfactorily - ,
I passed required inspections and tests, where A comprehensive system of planned and necessary to preclude inadvertent b) passing periodic audi's shall be carrted out to verify of such inspections and tests. Measures compliance with all aspects of the quality shall alJo be estaDllshed for indicating the assurance program and to determme the ef-operstmg status of structures. systems. and feettieness of the program. The audits shall ~
components of the nue". car power plant or be performed in accordance with the writ.
fuel reprocessma plant. such as tay taggmg ten procedures or check lists by appropft-sahes and switches. to present madvertent ately tramed personnel not having direct re.
operation. $ponsibill'ies the areas bemg audited.
Audit results 3rall be documented and re.
XV. NoNCoMFoRMtNe MATERIALS. Potts. on viemed by man.wement having responsibill.
CowcontN' s ty in the area udited. Followup action, m.
ciudmg reaudit if deftesent areas. shall be Measures shall be estabitshed to control taken w here marated, mater:als, parts. or components %hich do not conform to requiremerits in order to (35 FR 10499. J.me 27.1970. as amended at prevent their :nadvertent use or installa- 36 FR 18301. Sept.17.1971; 40 FR 3210D.
non. These measures shall include. as ap- #""'
- O propriate, procedures for identification. doc-umentation. serreration. disposition. and AyPENDICEs C-D-[ Reserved) notification to af fected organizations. Non-conformmg items hall be reviewed and ae.
cepted. rNeeted. repaired or reworked m ae- .) ?ENDIX E-EMERGENCY Pt.ANNINo AND rordance alth documented procedures-
' PREPAREDNESS FOR PROptJCTION AND XVI CesarcTzvr AcTtoM ' m m m haunn' Measures shall be esta011shed to assure TcNe of Contents
'h t conditions adverse to quahty, such as I. Introduction failures. malfunctions. deficieneses. dert.
ations defeetne material and equipment.
and nonconformances are promptly identi- NRC etaff has developed two r*rulatory fled and corrected. In the case of significant gumes. 6 Emergency Plannmg for Re.
conditions adterse to quality. the measures nearch Reae' ors - and 3.42. Er..ergency shall assure that the cause of the condition Plannma :n Puel Cycle Faelitties and Plants is determmed and correettre action taken to 1ieensed and a somt (.'nder 10 FEMA NRC, CFR Parts 50 and report. 70c NUREO-preclude repetition. The identification of 0654. FEM A-REP-1. Criteria the significant condition adterse to quality. tion and Evaluation of Radiological Emer- for Prepara- I
- he cause of the condition, and the corree- gency flesponse P!ans and Preparedness m
'ite action taken shall De documented and Support of Nuclear Power P! ants for Inter.
reported to appropr: ate ;evels of manage- im Use and Comment.' January 1980. to ment Conn n ad 475
Poet 50, App. E Tide 10-Energy
!!. The Pre!!mmary Safety Analysts Report poser reactors and the degree to which I!!. The Final Safety Analysts Report compliance with the re:lutrementa of this IV. Content of Emergency Plans section and sections !L III. IV. and V as nee.
V. ! implementing Procedures essary will be determined on a case.by. case basts. '
!. INTitoDUCTiore Notwithstanding the above paragraphs, in Each applicant for a construction permit the case of an operating 11 cense authorizing ts required by 150.34(a) to include m the only fuel loadmg and/or low power oper.
preliminary safety analysts report a discus- attons up to 5% of rated power no NRC or
.sion of preliminary plans for coping with FEMA review, findings. or determinations emergencies. Each apphcant for an operat. concerning the state of offatte emergency ing license is required by 150.34(b) to in* preparedness or the adequacy of and the ca.
clude in the final saf ety analysts report pability to tmplement State and local offsite plans for copmg with emergencies. emergency plans. as defined in this Appen.
This sppendix establishes mantmum re- such dix. are required prior to the issuance of autrements for emergency plans for use m a license.
attainmg an acceptable state of (mergency preparedness. These plans shall be de' II. Tug Paguumuy SArrry Antvsts scribed generally m the preliminary safety Rgeont analvs s report and submitted as part 'the The Preliminary Safety Analysis Report final safety analysts report.
shall contain sufficient information to The potential radiological hazards to the ensure the compatibility of proposed emer.
public associated with the operatton of re. gency plans for both onsite areas and the search and test reactors and fuel facilities 11 EPZ8. with facility design features. site cerned under 10 CFR Parts 50 and 70 in. layout, and site location with respect to volve considerations different than those as. suen considerations as access routes, sur.
sociated with nuclear power reactors. Conse. rounding population distributions. Land use, quently, the size of Emergency Plannmg and local jurisdictional boundartes for the Zones ' (EPZs> for factittles other than EPZs in the case of nuclear power reactors as well as the means by which the standards provide guidance ;n developing plans for of i 50 47(b) will be met.
coping with emergencies. Copies of these As a mantmum. *he following items shall documents are avattable at the Commis* be described:
sion's Pubite Document Room. 1717 H A. Onsite and itsste organizations for Street. W .. Washington. D.C. 00551 copmg with emergencies and the means for Copies of these documents may be pur. notification, m the ment of an emergency.
chased from the Government Printing of persons assigned to the emergency orga.
O!! tee. Information on current prices may mzations.
be obtained by writing the U.S. Nuclear B. Contacts and arrangements made and Regulatory Commission. Washmgton. D.C. documented with local. State, and Federal 20555c Attention. P'achcations Sales Man
- governmental agencies with responstbtlity aget for copmg with em-rgencies meluding iden.
'EPZs for power reactors are discussed in (Ification of the o npal agencies.
Nt' REG.0306. EPA 500< l 78-016. "Plannmg C. Protective m <tres to be taken withm Basis for the Development of State and the site boundar- nd within each EPZ to Local Government Radiological Emergency protect health ari sfety m the event of an Response Plans in Support of Light Water accident: procedu s by which these meas.
Nuclear Power Plants." December 1978. The ures are to be carr 1 out ie g., m the case of nze of the EPZa for a nuclear power plant an erneuation. %f.; authortzes the evacua.
shall be determined m relation to local tion. how the pucue is to be nottlied and m.
emergency re*ponse needs and capabilities structed. how the evacuation is to be carried as they are affected by such conditions as outt and the expected response of offsate demography, topography. land characterts. agencies m the event of an emergency.
tics, access routes. and Jurisdictional bound. D Features of the facility to be provided tries. The size of the EPZa also may be de* for onsite emergency first and and decon-termmed on a case.by case basis for gas. tamination and for emergency transporta.
cooled nuclear reactors and for reactors tion of onsite mdtuduals to offsate treat.
with an authortzed power level less than 250 ment f acilities.
MW thermal. Generally, the plume expo- E. Provisions to be made for emergency sure pathway EPZ for nuclear power plants treatment at offsite factittles of mdaviduals math an authortzed poner letel greater than injured as a result of heensed activities.
>., 250 MW thermal shall consist of an area aoout 10 miles s 16 km) in radius and the in- ' Regulatory Guide 2.6 will be used as gestion pathway EPZ shall consist of an guidance for the acceptability of research area about 50 miles s 80 km> in radius. and test reactor emergency response plans.
476
Chopf*' l-Nudeor Regulatory Commission Port 50, App. E F. Provisions for a training program for gencies. assessment action. activation of employees of the licensee, includmg those emergency organization. notification proce-ano are a.ssigned specific authority and re- dures. amergency facihties and cQuipment.
gponsibihty in the esent of an emergency. trammg. maintainmg emergency prepared-
.ind for other persons wno are not employ. ness, and recos ery. In addition, the emer-ces of the l.censee but w hose assistance may gency response plans submitted by an appli-be needed in the event of a radiological can6 for a nuclear power reactor operatmg emergency.
heense shall contam mformation neaded to G. A prelimmary analysis that projects demonstrate compliance with the standards the t:me and means to be employed m the described in 150 47t bu and they will oc notification of State and local governments evaluated adamst those standards. The nu-and the public m the esent of an emergen- c! ear power reactor operating license appli.
t" clear power piant apphcant shall tv
- 1 a prehmmary 'inalysis of the time cant 3 hcl also provide an analysts of the a.. red to e.acuate s arious ,ec' ors and dis- time required to evacuate and for taKmg etner preteethe actions for various sectors tances with;n the pturne exposure pathway and distances Althin the plume expn%ura EPZ tor ransient and oermanent popula- pathway EPZ for transient and permanent n gns. notng i ma ior impetments to the populat;ons.
)
es acuation or 'aking of ::rotectn e actmns K A prehmmar) aralis;s reflectmg the need to .nciude f ac;ht;es. o st ems, and A. Or7a.ti ction methods lcr ident.fymg he deirae af sert. The organization for copmg with radiolog-ousness and potential , cope )! radiolog. al ical emergencies shall be described. melud-unsequencas of emergency otr . y1 Ing definition Di authcrttles, responsibilities.
w;;hin and outside the me Soundar. '
and duties of individuals assigned to the l' dudmg capabihties for .tose pro jection rensee s emergency organization and the uomg real-ttme metectruncal information means for nottitcation of such mdividuals in and for dispatch of rad:olog. cal .iomtcrtng the event of an emergency. Specifically, the vams withm the EPZA and a prelimmary followmg shall be m:ltided:
Anaiysts reflecitng the nle af the onsite 1. A description of the normal plant oper.
techrucal support center and of Pte near- attrw orgamzation.
ate emergency Operations f.vihty .n wess.
.ng mf ormation. remmmen6ng protect n e 1 A description of the onsite emergency P.sponse crgantzaticn Alth a detailed discus-action, and d;sarmina %ng . formation to , inn og:
tne poche. '
- a. Authorttles. rmnsibilities, and du':es .,
III. TL/ FIN At. M urTY AN st35:s REP ^RT of the :ndividual's Aho wid take charge
.turma an emergenc.
The Fmal Fa:m Anmsis Rrport shall b Plant staf f emeNency assignments:
mntam the p!ans for copmg wdn emergen. e vs The plans #all na an expresstun nf the Authorities rN msanthties, and duties werall concept ut Socrat on; t hev < hall de. on an onute emerency coordmator % ho
,cnoe the essent.at +ments af .Lds ance shati be m
- irge of the exchange of infor-
, at:an A ;' :fstte authorities responsible plannmg that hate Dean considered and the provisions that hate D*en made N cepe with far coord. . g art ; implementing of fsite em-trency sittiat:nns. The plano shall mcor. -mer enc. mr%
g 3,, ,
porate .nformation Mo'at the emergency re- n. ny peniton and f unct:en
,ponse rues at mpportm.t vraamzations and ' yjg ,,,,,
cifute %: enc:e( Tha' nformatten shall be ors p-rsor A no wal be sent to the plant i dSc+nt 'o pros ide auurance of cenr:nna. 'd" N l'* ~ I h' 'nre emergency 3rga.
.9n 3" tong '.he supporting (Toups and with 9 lgegn3p, 4. Ident;!;" t'.on. by 30Sition and func!!on The D'ans Gibmitted 'nust melude a .te. N o D-rformed. os rersons witnm tne ti.
'r:ption of the eements set out m Sect:on "nsee organ::'ation A ho 2111 be responsible
'. !or 'he Emergency Plannmg Zones Mr maAmg Jfute !nse project)ons. and a EPZs> to an extent ,ut ficient to demon. wcr.ption or r.ow rese projections 2:11 ee trate that the p;ans provice rebonab6e as. made ed in hts transtnitted to State e.rance that adequate protectne measures na wat uc tra:e3 NP.C. and Ot her ap-an and will be 'axen m the etent of an propriate go.cmentaa rnt.t:es
-me rge ncy.
!\,. CONTENT cr f'ttactNev Ptaxs These nDien c.es tre addressed by 4pec:f-y g,g , q R EG W54. FEM A- R EP- 1 The appheant's rmergenev plans sha!! entitled "Crite:a for Preparation and Eval-ontam. but not necmar:ly be hmited to. *iation of Radiological Emergency Response n!armation needed to demonstrate comph. P!ans ana Prapar-tnns m Support of Nu-ince %Ith he -lements (et fort h below. i e , dear Power P' ants tor Inter:m Use and Waruzation for copmg alth radiation emer- Comment" Januar; ; 40.
477
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i Port 50, App. E TMe 10--Energy l
- 5. Identification, by position and function shall include: (1) notification of unusua!
to be performed, of other employees of the events. (2) alert. (3) site ares emergency, k heensee with special qualifications for and 4 4) general emergency. These classes 1 coptng math emergency conditions that may are further discussed tri NUREG-065t; j artse. Other persons with special qualifica. FEMA-REP-1.
tions, such as consultants, who are not em. !
ployees of the licensee and who may be I D. Nottricataan Procedures called upon for assistance for emergenetes shall also be identified. The special quahfl. 1. Administrative and physical means for cations of these persons shall be described. notifying local. State, and Federal officials 8 A description of the local offsste serv' and agencies and agreements reached with tees to be provided m support of the licent these ottletals and agencies for the prompt ce's ernergency organization. notification of the public and for public
- 7. Identification of, and assistance expect. evacuation or other protective measures.
ed from, appropriate State, local, and Feder- should they become necessary, shall be de.
al agencies with responsibilities for coping scribed. Dtis description shall include iden.
with emergencies, tification of the appropr' ate officials. by
- 8. Identification of the State and/or local title and agency, of the State and local gov.
officials responsible for planning for, order. ernment agencies within the EPZa.:
mg. and controlling appropriate protective 1 Provisions shall be desertbed for yearly actions. including evacuations when neces. dissemmation to the public wit hin the
'"4 plume exposure pathway EPZ of basic emer.
sency planning information, such as the B. Assessmenf Actions methods and times required for public noti.
The means to be used for determining the fication and the protective actions planned tf an accident occurs, general information as magnitude the impact of ofthe andrelease for contmually assessing of radioactive mm. to the nature and effects of radiation, and a terials shall be described meluding emer- Itsting of local brcadcast stations that will gency action levels that are to be used as be used for dissemination of info mation criterta for determinmg the need for notifi* during an emergency. Signs or other mens- -
cation and participation of local and State ures shall also be used to disseminate to any agencies, the Commission. and other Feder- transtent population within the plume expo.
al agencies. and the emergency action levels aure pathway EPZ appropriate information that are to be used for determming when that would be help:al ;f an accident occurs.
- 3. A licensee shail have the ca.pability to and what type of protectn e measures should be considered within and outside the notify responsible State and local govern.
mental agencies withm 15 mmutes after de.
site bcundary to protect health and safety. claring an emerg-ncy. The licensee shall The emergency action levels shall be based on in-plant conditions and instrumentation demonstrate that the State / local officials m addition to onsite and of fsite monitoring. have the capability to make a pubile nottft-These emergency action lesels shall be dis
- cation decision promptly on being informed by the licensee of an emergency condition.
cussed and agreed on by the applicant and By February 1.1982. each nuclear. poser re.
State and localby.rosernmental and appreved NRC. They shall authorities also be actor licensee shall demonstrate 'at admm.
istrative and physical means been es.
reviewed with the State and local govern- tablished for alertmg and pros Sg prot 9pt mental aut horittes on an annual basis- 2 instructions to the public with.- he plume C Actit ation of Emergency Oreantention exposure pathway EPZ. The tr month period in 10 CFR 50 SUsc f.- ..e corree.
The enttre spectrum of emergency condi. tion of emergency plan cef a ces shall tions that :nvolve the alertmg or actisating not apply to the initial mstallc. on of this l
' uf progresanely larger segments of the total public notification system that .s required emergency organization shall be described. by Dbruary 1.1982. The four month penod The communication steps to be taken to will apply to correction of defic &ne:es . den.
alert or activate emergency personnel under fified during the mitial mstallation and 'f st-each class of emergency shall be described, mg of the prompt public nottfacation ws-Emergency action levels ibased not only on tems as well as those deficiencies disectered onsite and of fstte rad:ation monitormg m- t hereaf ter. The desurn objective of the formation but also on readmgs from a prompt public notification system shall be number of sensors that mdicate a potential to hate the capabtisty to essentially com-emergency. such as the pressure m contam- plete the mittal notification of the puDisc ment and the response of the Emergency within the plume exposure pathaat EPZ Core Cooling Systems for notification of off. withm about 15 mmutes The use of this no-site agencies snall be described. The exist. tification capability will range from :mmed:-
ence. but not the details. of a message au. ate not:1tcation of the public (sithm 15 thentication scheme shall be noted for such minutes of the time that State and local of-agencies. The emergency classes defined fletals are notified that a situation exists re.
478
p l-Necieet Regwietory Commission : Port 50, App. E to the more likely near site emergency operations factitty; and
'kutring ents where urgent there action) is substantial time avail. among the nuclear factitty. the prmeipal oie for the State and local governmental State and local emergency operations een-fficsals to rnate a judgment whether or not ters and the field assessrrent teams. Such to activate the pubtle notification system. communications systems shall be tested an-Where there is a decision to activate the no- nually.
,5fiestion system the State and local offi- d. Provtstons for communications by the hg3 wt11 determme whether to activate the licensee with NRC Headquarters and the entire nottitestion system simultaneously or .' appropriate NRC Regional Office Oper.
in a graduated or staged manner. The re- ations Center from the nuclear power reae.
sponsibility for activatmg such a public no- tor control room. the onstte technical sup.
tification Jystem shall remain with the ap* port center and the near stte emergency op-prepriate governmental authorttles. erations facility. Such communications shall E. Emergence e.acnattes and Eniomesit be tested monthly.
Adequate provisions shall be made and de- E D838189 4cribed for emergency facilities and equip. The program to provide for (D the tram.
ment,. meluding:
- g. Equipment at the s;te for persennel mg of employees and excretsing. by periodic montturms; drills, of radiation emergency phns to
- L Eaulpment for 'tetermmmg the magrt. ansure that employees of the licensee are
.tude of and for continuously assmmg the familiar with their specific emergency re.
impact of the release of radicactne matert. aponse duties and #2) the participation in the tratnmg and drills by other persons als to the environment: whose assistance may be needed m the 3 Facilities and supplies at the site for de-contammation of onsite individuals; es ent of a radiation emergency shall be de.
- 4. Facili':es and medical supphes at the scribed. This shall include a desertption of 5.te for appropriate emergency first .ud *pecialized Initial trammg and periodic re.
trainmg programs to be provided to each of Ar a gements for the services of physt- wmg catemies of wrgW pn.
clans and other ;uedical personnel Qualtited to handle radiation emergenetes on+te. 4. Directors and/or coordinators of the -
- 6. Arrangements for transportation of plant emergency orgamzation:
contaminated injured indntduals from the A Personnel responsible for acendent as-ste to specifically identified treatment f actl. sessment, including control room shift per.
.ttes outside the site boundary; sonnet L Arrangements for treatment of individ. c. Radiological momtorms teams:
uals injured 'tn support of licensed activities d. Fire control teams t fire brigadest on the site at treatment faelhties outside e. Repair and damage control teams; the site boundary; f. First aid and rmeue teams:
af A !!censee ensite technical support g. Medleal suppor* Dersonnel:
center and a iteensee near. site emergency h. Licensee's N muarters support per, operations factl!!y from which effeative dt. nonnel; reetton can be given and effective con'rol 6. Security per- nnel.
an De exeretsed durmg an emergency: In addition. radiological orientation
- 9. At least one onsite and one offsite com. traming progran. . hall be made available to munications system: each system shall have local services pv "nnel. e g.. local Civil De-t onekup power source. fense, local las -nforcement personnel.
All commumcation plans shall have ar. tocal news media vrsons.
nngements for emergencies, meludmg titles The plan shall #5cribe provtstons for the and alternates for those m charge at both conduct of emergency preparedness exer.
ends of the communication links and the eiset Exera:ses shall test 'he adequacy of i
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- mary and backup means of communlea. tim'ng isn . 'ontent of implementmg proce-l Mon. Where consistent with the function of dures and methods.
- cst *mergency equip-
'ne dosernmental agency. these arrange. ment and communtention networks. rest the ments will metude: pubhe notification system. and ensure that
- a. Provision for communications with con. emergency organization personnel are famtl.
Nguous State / local governments within the- iar with their duties. Each lleensee shall ex.
plume exposure pathway EPZ. Such com. cretse at least annually the emergency plan munications shall be tested monthly. for *ach site at w hich it has one or more
- b. Provision for communications with Fed- power reactors licensed for operation. Both cral emergency response organizations, fullacale and smallacale excretses shall be Such communications systems shall be conducted and shall include participation by tested annually.
- c. Provision for commumcations among agencies as follown.
appropriate State and local government
'he nuclear power reactor control room. the 1. A full.seale exercise which tests as nrtite technical support center. and the much of the licensee. State, and local emer-479 R' ------ ~_ SL
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Part 50, App. F Title 10-Energy I gency plans as is reasonably achievable nuclear power reactor or a license to possess without mandatory public participation nuclear material one copy of the applicant's shall be conducted; detailed implementing procedures for its
- a. For each site at which one or more emergency plan shall be submitted to the power re* actors are located and beensed for Admimstrator of the appropriate NRC Re- i operation. at least once every five years and gional Office, specified in Appendix D of ('
at a frequency which will enable each State Part 20 of this chapter and two copies are to and local government withm the plume ex- be sent to the Document Control Desk. U.S.
posure pathway EPZ to participate in at Nuclear Regulatory Commission. Washing-least one full. scale exeretse per year and ton, DC 20555. Licensees who are authortzed which will enable each State withm the m- to operate a ttuelear power facility shall gestion pathway to participate in at least submit one copy of any changes to the une full-scale exercise es ery three years. emergency plan or procedures to the Ad- '
- b. For each site at which a power reactor ministrator of the appropriate NRC Region-is located for Ahnen the first operating !I- 41 Office. specified m Appendix D.10 CFR j eense for that site ts .ssued af ter July 13. Part 20. and two copies to the Docurnent l 1982, withm one year before issuance of t he Control Desk within 30 days of such first operatmg bcense for full power, and changes.
prior to operation abose 5% of rated power of the first reactor. which will enable eacn Sees. 1616., i.. and o., Pub. L 83-703; 68 State and local gos ernment wit hm the Stat. 948 842 U.S.C. 20014 sec. 201. as plume exposure pathway EPZ and each amended. Pub. L 93-438. 88 Stat.1242. Pub.
State within the ingestion pathway EPZ to L 04-79 8 42 U.S.C. 5841 n participate. US FR 55410. Aug.19.1980; 46 FR 28839,
- 2. The plan shall also desertbe provisions May 29,1981, as amended at 46 FR 63032, for involving Federal emergency response Dec. 30.1981: 47 FR 30236. July 13.1982: 47 agencies in a full-scale emergency prepared. FR 57671. Dec. 28,19821 ness exercise for each site at which one or more power reactors are located and 11 -
censed for operation at least once every 5 APPENDIX F-Pot. Icv REI.ATINo TO THE 3 small. scale exercise A htch tests the SITINo or Pt Et. REPROCESSING PLANTS ;
adequacy of communication 'mks. estab. AFD RELATrp WASTE MANAGEMENT ltshes that response agencies understand FACILITIES
'he emergency action levels. and tests at seast one other component ie.g., medical or g gg offstte monitoringi of the offsite emergency response plan for licensee. State. and local do not require trat such facilities be located emergency plans for lurisdications within on land owned and controlled by the Feder.
the plume exposure pathway EPZ shall be al Government. auch plants meluding the conducted at each site at a htch one or more factilties for the temporary storage of high.
power reactors are located and licensed for level radioactive wastes. may be located on operation each year a full scale eteretse is prhately owned property.
not conducted which mvolves the State < s) 2. A fuel reprocessing plant's in tory of within the plun:e exposure pathway EPZ an-level itquid radioactt e was' ull be All traming. meluding exeretses, shall pro- limited to that produced m t '. ;)rior 5 vide for formal critiques m order to identify years. For the purpose of this st . ment of weak areas that need corrections. Any weak. Miq. ' WWW MW Moact. A m es" nesses that are identifled shall be corrected. means those aqueous Aastes resu. M from the operation of the first cycle .ent ex.
G. Maintaining Ernergency Preparedriess traction system. or equivalent and the con-Provisions to be employed to ensure that centrated wastes from .iubsequent extrac.
,the emergency plan, its implementing proce. tion cycles, or equivalent, in a f acthty for re-dures, and emergency eautpment and sup- processing trradiated reactor fuels.: High-phes are mamtamed up to date shall be de- kvel hauld radioactive wastes shall be con-sert bed
- serted to a dry sohd u required to comply with this mventory hmitation. and placed in H Recot ery a sealed contamer prior to transfer to a Fed-eral repository in a snipping cask meetmg Criteria to be used to determme a hen. fol* the requirements of 10 CFR Part 71. The lowmg an accident, reentry of the facility dry solid shall be chemically. thermally, and Aould be appropriate or w hen operation radiolytically stable to the 6 tent 'nat the could be resumed shall be described. equihbrium presure :n the _ sealed contamer V IxetEMENTING PROCEDI*REs for that contamer durmg the period from No less than 180 days prior to the sched- canning t hrough a mmimum of 90 days uled issuance of an operating brense for a af ter receipt s transfer of ph>sical custody #
480 1
Attachm*nt IB 10 CFR PART 50, APPENDIX E (1987)
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Port 50, App. I 10 CPR Ch. I O-1-47 Ed%
8 Secsan taso of to crm Pet i ans it s of to cFM parent companies or other corporate afftjg.
P ew
,,l wg e"o"m" stes, information to support the financial capability of each such company or affuiste If the fuel is to be acquired by lease or to meet its commitments to the applicant ,
other arrangement than purchase. the ap- should be set forth in the application. Thig l pilcation should so state. The items to be in. information should be of the same kind and cluded in these categories should be the scope as would be required if the parent companies or affilistas were in fact the 10, rt pa and c at fuel invento plicant. Ordinarily, it will be necessary that ,
counts prescribed by the Federal Energy copies of agreements or contracts among Regulatory Cnmmmaton or an explanation the companies be submitted.
given as to any departure therefrom. As noted earlier in this appendix, an appig.
Since the composition of construction estimates for production and utulzation fa-cost cant which is a newly formed entity wtti cilities other than nuclear power reactors normally not be in a position to submit the will vary according to the type of facility, no usual types of balance sheets and income particular format is suggested for submit- statements reflecting the results of prior op-ting such estimates. The estimate should, erstions. The applicant should, however,in, however, be itemized by categories of cost in clude in its application a statement of its sufficient detail to permit an evaluation of assets, liabuities, and capital structure as of i its reasonableness. the date of the application. I
- 2. Source et/ construction funds. The appli.
cation should include a brief statement of III. M AI. Pt s C u m I the applicant's general financial plan for fi- Each holder of a corJtruction permit for a nancing the cost of the facility. Identifying production or utillantion facility of a type the source or sources upon which the appit*
cant rellas for the necessary construction described in i 50.21(b) or 150.22. or a testing funds, e.g., internal sources such as undis* facility is required by I 50.7(b) to file its tributed earnings and depreciation accruals. annual financial report with the Commis.
sion at the time of issuance thereof. This re. -
or3.external sources Applicant's such as financial borrowings' The quirement does not apply to 11cerJoes or statements.
application should also include the appil- holders of construction permits for medical cant's latest published annual financial and research reactors.
report, together with any current interim f!-
nancial statements that are pertinent. If an IV. ADorT!oNA1. IKronssATIoM annual financial report is not published, the balance sheet and operating statement cov. The Commission may, from time to time, ering the latest complete accounting year g gg, together w1th all pertinent notes thereto llahed organization or newly formed entity, and certification by a public accountant to submit additional or more detailed infor.
should be furnished. mation respecting its financial arrange-ments more detaued information nspecting II. ArrLICANTs WHic31 Aas Nrwtv FonarxD lts financial arrangements and status of ENTITIES funds if such Information is deemed necas.
A. Applicationsfor construction permits stry to enable the Comm1&slon to <1etermine an appilcant's financial qualifications for
- 1. Estimate of construction cost.a. The in- the license.
formation that wdl normally be required of applicants which are newly formed entitles (49 FR 35753. Sept.12.19844, as amended at will not differ in scope from that required of 50 FR 18853. Ma 1.19851 established organizations. Accordingly, ap.
plicants should submit estimates as de. AFFENDtx D-(Reserved) i scribed above for established organizations.
- 2. Source of construction funds. The appli. {
j cation should specifically identify the I source or sources upon which the applicant AFFENDIx E-EMERcENer PLAffMING AND l relles for the funds necessary to pay the PREPAREDNESS FOR PRODUCTION AND l cost of contracting the facility, and the UTII.!ZATION FACII.ITIES l amount to be obtained from each. With re- i spect to each source, the application should Table of Contents '
describe in detail the applicant's legal and financial relationships wtth its stockholders. I. Introduction corporate affiliates. or others (such as fi- II. The Preliminary Safety Analysis Report nancial institutions) upon which the appil. III. The Final Safety Analysis Report cant is relying for financial aaststance. If IV. Content of Fmergency Plans the sources of funds re11ed upon include V. Implementing Procedures 534
)
l 1
Port 50, App. E g., Regvietery Commission I. INTacoccTson dix. are req.11 red prior to the issuance of such a Umse.
D#h applicant for a construction permit utred by I 50.34(a) to include in the la f y safety analysis report a discus- II. Tur PartzMINAa7 SArrTY ARA 1.Ysts Pf' of prelinuntry plans for coping with R noat The Preliminary Safety Analysis Report e is eq ed b 50.34 ) m-shah m tsin sWictent iniwmadon m ini IAC he final safety analysis report iude in ensure the compatibility of proposed emer-plSU' gency plans for both onstte areas and the f e tab hes rbmum re- EPZs. with facility design features, site M nts for emergency plans for use in layout, and site location with respect to attainin8 an acceptable state of emergency such considerations as access routes, sur-dness. These plans shall be de- rounding population distributions. land use, 8
sc generally in the preliminary safety and local jurisdictional boundartes for the andy is report and submitted as part of the EPZa in the case of nuclear power reactors fin 81 safety andysis repon. as well as the means by which the standards
- potential radiological har.ards to the of l 50.47(b) will be met, pu 1c associated with the operation of re- As a minimum, the following items shall
arch and test reactors and fuel facilities 11 be described:
- nsed under 10 CFR Parts 50 and 70 in- A. Onsite and offsite organizations for
- 1ye considerations different than those as. coping with emergencies and the means for isted with nuclear power reactors. Conse, (ently the size of Emergency Planning notification. In the event of an emergency.
,ses i (EPZs) for fac111tles other than of persons assigned to the emergency orga-power reactors and the degree to which nizations. B. Contacts and arrangements made and cognpliance with the requirements of this getton and sections II. III. IV. and V as nec. doewnented with local. State, and Federal epary will be determined on a case.by case governmental agencies with responsibility 3, gig s for coping with emergencies, including iden.
Notwithstanding the above paragraphs in tification of the principal agencies.
gne case of an operating license authorizing C. Protective measures to be taken within only fusi loading and/or law power oper- the site boundary and within each EPZ to suons up to 5% of rated power. no NRC or protect health and safety in the event of an _
yg&A review, findings. or determinations accident; procedures by which these meas-concerning the state of offsite emergency ures are to be carried out (e.g.. In the case of preparedness or the adequacy of and the en- an evacuation, who authorizes the evacu.
pability to implernent State and local offsite ation, how the public is to be nottfled and emergency plans. as defined in this Appen- Instructed. how the evacuation is to be car-ried out); and the expected response of off-EPZs for power reactors are discussed in '"' "I ' '""***#*
hatures of the fadity M be prodded NUREG-0396 EPA 520/1-78-016. " Planning for onsite emergency first md and decon-Basis for the Development of State and taminadon and Mr mmmy transpons-local Government Radiological Emergency Response Plans in Support of I.!ght Water tion of onsite individuals to offsite trest-Nuclear Power Pls.nts." December 1978. The ment facilities.
size of the EPZs for a nuclear power plant E. Provisions to be made fer mmency shall be determined in relation to local treatment at offsite facilities of individuals emergency response needs and capabilities injured as a result of licensed activities.
sa they are affected by such conditions as P. Provtstons for a training program for demography. topography. land characterts- employees of the licensee. Including those tics, access routes, and jurisdictional bound. Who are masigned specific authority and re-artes. The size of the EPZs also may be de. sponsibility in the event of an emergency, termined on a case-by csse basis for gas, and for other persons who are not employ-cooled nuclear reactors and for reactors ces of the licensee but whose aaststance may with an authortzed power levelless than 250 be needed in the event of a radiological MW thermal Generally, the plume expo- emergency.
[
sure pathway EPZ for nuclear power plants G. A preliminary analysis that projects rith an authorized power level greater than the time and means to be employed in the I
i 250 MW thermal shall consist of an tres notification of State and local governments I about 10 miles (16 km) 1n radius and the in- and the public in the event of an emergen-gestion pathway EPZ shall consist of an cy. A nuclear power plant app!! cant shall area about 50 miles (80 km)in radius. perform a preliminary analysis of the time
' Regulatory Guide 2.6 will be used as required to evacuate various sectors and dis-(uidance for the acceptability of research tar.ces within the plume exposure pathway I and test reactor emergency response plans. EPZ for transient and permanent popula- l 1
535 ss-o:5 o-s1-is i
l l
1
~
[ .__
e Pwe30, App.E 10 CFR Ch.1 (1-1-47 EdWeq tions, noting major impediments to the EPZ for transient and pennanent popula.
evacuation or taking of protective actions. tions.
H. A preliminary analysis reflecting the need to include facilities, systems, and A. Organization methods for identifying the degree of sert.
ousness and potential scope of radiological The organization for coping with radiolog, consequences of emergency situations ical emergencies shall be described. includ-within and outside the site boundary. in- ing definition of authorttles. responsibilities, cluding capabilities for dose projection and duties of individuals assigned to the 11 using real time meteorological information censee's emergency organization and th8 and for dispatch of radiological monitoring means for nottf1 cation of such individuals in teams within the EPZs: and a preliminary the event of an emergency. Specifically, the analysis reflecting the role of the onsite following shall be included:
technical support center and of the near. 1. A desertption of the normal plant oper.
site emergency operations fact 11ty in assess. sting organization.
ing information, recommending protective 2. A description of the onsite emergency action. and disseminating information to response organization with a detailed discus-the public, sion of:
- a. Authorttles, responsibilities, and duties III. Txs PINA! SArTrY ANat Ysts RzeonT of the individual (s) who will take charge The Ptnal Safety Analysis Report shall during an emergency:
contain the plans for coping with emergen, b. Plant staff emergency assignments; eles. The plans shall be an expression of the c. Authorities, responsibilities, and duties overall concept of operation; they shall de- on an onsite emergency coordinator who scribe the essential elements of advance shall be in charge of the exchange of infor.
planning that have been considered and the matMn with offsite authorttles responsible provtstons that have been made to cope with for coordinating and implementing offsite emergency sitt.ations. The plans shall incor- emergency measures.
porate information about the emergency re- 3. A description, by position and function sponse roles of supporting organizations and to be performed, of the licensee's headquar.
offsite agencies. That information shall be ters personnel who will be sent to the plant sufficient to provide assurance of coordina-site to augment the onsite emergency orsa.
tion among the supporting groups and with nization.
the licensee. _
The plans submitted must include a de-
- 4. Identification, by position and function scription of the elements set out in Section to be performed. of persons within the 11 IV for the Emergency Planning Zones censee organization who will be responalble for making offsite dose projections, and a that e p1 r d res nabl description of how these projections will be aurance that adequate protective measures made and the results transmitted to State can and will be taken in the event of an and local authorities. NRC. and other ap-emergency. propriate governmental entitles.
- 5. Identification, by position and function IV. CoxTurr or EassacsNc7 Pt.ans to be performed. of other employees of the The applicant's emergency plans shall Ucensee with special quamattom for contain, but not necessarily be limited to, coping with emergency conditions that may information needed to demonstrate compli- arise. Other persons with special qualifica.
ance with the elements set forth below, t.e.. tions, such as consultants, who are not em-organization for copmg with radiation emer. ployees of the licensee and who may be rencies. assessment action, activation of called upon for assistance for emergencies emergency organization, notification proce. shall also be identified. The special qualift-
.fures, emergency factlities and equipment. cations of these persons shall be described.
training, mamtsining emergency prepared. 6. A description of the local offsite serv-ness, and recovery. In addition, the emer. ices to be provided in support of the licens-gency response plans submitted by an appu. ee's emergency organization, cant for a nuclear power reactor operating 7. Identification of, and assistance expect.
Iteense shall contain information needed to ed from, appropriate State local, and Feder-1emonstrate compliance with the standards al agencies with responsibilities for coping described in i 50.47(b), and they will be eval
- with emergencies, usted against those standards. The nuclear power reactor operating license app!! cant
- 8. Identification of the State and/or local shall also provide an analysis of the time re officials responsible for planning for, order.
Qutred to evacuate and for taking other pm ing, and controlling appropriate protective actions, including evacuations when neces-tective actions for various sectors and dis-Lances within the plume exposure pathway 8"#I*
536
\
. r
Nucieer Reguietery Commission Port 50, App. E B. Assessment Actions 2. Provisions shall be desertbed for yearly disseminsuon to the pubk w m me The means to be used for determining the plume exposure pathway EPZ of basic emer-magnitude of and for continually assessing gency planning information, such as the the impact of the release of radioactive ma- methods and times required for public noti-terials shall be described, including emer. fication and the protective actions planned gency action levels that are to be used as if an accident occurs, general information as criteria for determining the need for notift- to the nature and effects of radiation, and a cation and participation of local and State listing of local broadcast stations that will agencies the Commission, and other Feder- be used foe dissemination of information al agencies, and the emergency action levels durtng an emergency. Signs or other meas-that are to be used for determining when ures shall also be used to disseminate to any and what type of protective measures transient population within the plume expo-should be considered within and outside the sure pathway EPZ appropriate information site boundary to protect health and safety, that would be helpful if an accident occurs.
The emergency action levels shall be based 3. A licensee shall have the capability to on in-plant conditions and instrumentation notify responsible State and local govern-in addition to onsite and offsite monitoring. mental agencies within 15 minutes after de-These emergency action levels shall be dis- clarins an emergency. The licensee shall cussed and agreed on by the applicant and demonstrate that the State / local officials State and local governmental authorities have the capability to rnake a public notif1-sad approved by NRC. They shall also be eation decision promptly on being informed revtewed with the State and local govern- by the licensee of an emergency condition.
mental authorttles on an annual basis. By February 1.1982, each nuclear power re-actor licensee shall demonstrate that utmtn.
C Activation of Emerpeney Omantsetion istrative and physical means have been es.
tablished for alerting and providing prompt The entire spectrum of emergency condi- instructions to the public within the plume tions that involve the alerting or activating exposure pathway EPZ. The fcur month of progressively larger segments of the total period in 10 CFR 50.54(s)(2) for the corree-emergency organizauon shall be described. tion of emergency plan deficiencies shall The communication steps to be taken to not apply to the initial installation of this _
alert or activate emergency personnel under public notification system that la required each class of emergency shall be described. by February 1.1982. The four month period Emergency action levels (based not only on will apply to correction of deficiencies iden-onsite and offatte radiation monitoring in- tified during the uuttalinstallation and test-formadon but also on readings from a ing of the prompt public notification sys-number of sensors that indicate a potential tems as util as those deficiencies discovered emergency, such as the pressure in contaln- thereafter. The design objective of the ment and the response of the Emergency prompt public notification system shall be Core Cooling System) for notification of off- to have the capability to essentially com-site agencies shall be described. The exist- plete the initial notification of the public ence, but not the details, of a message au- within the plume exposure pathway EPZ thentication scheme shall be noted for such within about 15 minutes. The use of tnis no-agencies. The emergency classes defined tification capability will range from immedi-shall include: (1) notification of unusual ste notification of the public (within 15 events. (2) alert. (3) site area emergency. minutes of the time that State and local of-and (4) general emergency. These classes f!cials are notified thct a stustion exists re-are further discussed in NUREO-0654; quiring urgent action) to the more likely FEMA-REP-1. events where there is substantial time avail-able for the State and local governmental D. Nottf1 cation Procedures officials to make a judgment whether or not to activate the public notification system.
- 1. Administrative and physical means for Where there is a decision to activate the no-notifying local. State. and Federal officials Mficauon systern, tM Rate and Wal om-and agencies and agreements reached with als d demnine WWer m Wate me these officials and agencies for the prompt enme nommen spm msnmW w notification of the pubile and for public in a graduated or staged manner. The re-evacuation or other protective measures, sponsibility for activating such a pubile no-should they become necessary, shall be de- tification system shall remain with the ap-scribed. This description shall include iden- propriate governmental authorities, tification of the appropriate officiais, by title and agency. of the State and local gov
- E. Emergency factlittes and Eeutament
' " "*" Adequate provisions shall be made and de-scribed for emergency facilities and equip-
' See footnote 1 to section I. ment, including:
537
~
7 . 9
I Port 50, App. I 10 CPR Ch. I (1 1-87 Ealitten)
- 1. Equipment at the site for personnel drills, of radiation ernergency plans to monitoring: ensure that employees of the licensee are
- 2. Equipment for determining the magni- familiar with their specific emergency re.
tude of and for continuously assessing the sponse duties, and (2) the participation in impact of the release of radioactive materi- the training and drills by other persons als to the environment: whose assistance may be needed in the
- 3. Facilities and supplies at the site for de- event of a radiation emergency shall be de-contamination of onsite individuals; scribed. This shall include a description of
- 4. Facilities and medical supplies at the speciansed initial training and periodic re-site for appropriate emergency first tid training programs to be provided to each of treatment; the following categories of emergency per.
$. Arrangements for the services of physi- sonnel:
clans and other medical personnel qualified to handle radiation emergencies on-site; a. Directors and/or coordinators of the plant emergency organization:
- 6. Arrangements for transportation of contaminated injured individuals from the b. Personnel responsible for accident as.
site to specifically identified treatment fa* sessment, including control room shift per-sonnel; cilities outside the site boundary;
- 7. Arrangements for treatment of individ- c. Radiological monitoring teams:
uals injured in support of licensed activttles d. Fire control teams (fire brigades);
on the site at treatment fac111tles outside e. Repair and damage control teams; the site boundary, f. First aid and rescue teams;
- 8. A licensee onsite technical support E. Medical support personnel; center and a !!censee near site emergency h. Licensee's headquarters support per.
operations facility from which effective di. sonnel rection can be given and effective control 1. Security personnel.
can be exercised during an emergency; in addition, a radiological orientation
- 9. At least one onsite and one offsite com- training program shall be made available to munications system; each system shall have local services personnel; e.g local emergen-a backup power source. cy services / Civil Defense, local law enforce-All communication plans shall have ar- ment personnel, local news media persons.
rangements for emergencies including titles The plan shall describe provtsions for the _
l and alternates for those in charge at both conduct of emergency preparedness exer-ends of the communtention links and the etses as fonows: Exercises shall test the ade.
primary and backup means of communica- quacy of timing and content of implement-tion, Where consistent with the function of ing procedures and methods. test emergency the governmental agency. these arrange- equipment and communications networgs, ments win include: test the public notification system, and i
I
- a. Provtsion for communications with con- ensure that emergency organization person- '
tiguous State / local governments within the nel are familiar with their duttes,s plume exposure pathway EPL Such com- 1. A full participation
- exercise which munications shall be tested monthly,
- b. Provtston for communications with Fed-tests as much of the licensee. State and eral emergency response organizations. acMevable local emergency plans as la reasonably without mandatory .aublic par.
Such communications systems shall be ticipation shall be conducted for each site at tested annusHy. which a power reactor is located for which
- c. Provision for communleations among the first operating license for : hat site is the nuclear power reactor control room the issued after July 13. 1982. Ths exercise onsite technical support center, and the
' near site emergency operations facility; and -
among the nuclear facility, the principal 8 Use of site spectfle simulators or comput-State and local emergency operations cen- ers is acceptable for any exercise.
i ters, and the fleid assessment teams. Such *" Full participation" when used in con.
communications systems shall be tested an- junction with emergency preparedness exer-nually.
c!ses for a particular site means appropriate
- d. Provtstons for communications by the offsite local and State authorttles and 11-licensee with NRC Headquarters and the censee personnel physically and actively appropriate NRC Regional Office Oper- take part in testing their integrated capabil-attons Center from the nuclear power reac- ity to adequately access and respond to an tor control room, the onsite technical sup- accident at a commercial nuclear power port center, and the near stte emergency op- plant. " Fun participation" includes testing erstions facility. Such communications shall the major observable portions of the onsite be tested monthly, and offsite emergency plans and mobiliza-tion of State, local and licensee personnel I U88"0- and other resources in sufficient mumbers The prograns to provide for (1) the train- to verify the capability to respond to the ac.
ing of employees and exercising, by periodic cident scenario.
538 f
_ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ - i
If the full participation exercise is conducted more than one year prior Fed,jeg. to issuance of an operating licensee [ sic) for full power, an exercise 123, 16829 which tests the licensee's onsite m arcy plans shall be conducted ty 6,1987) within one year before issuance of an operating license for full power.
'Ihis e3sarcise need not have State or local government participation.
i p M e.-ah 1 Part 50, App. E 88'*# ,, senducted ethin . m efore the the event to a radiolossoal emersency. The two years ' J8aapse of the first operaung usense for extent of state and local parucspauen in re. . i thpower ed power andofprior to operanon the fires reacter, and absee shall 8% medial exercissa must be sufficient to show that appropriate correcuve measures have '
hu.se d
partnetpauon by each State and bien taken regarding the elements of the
- .*I pdhway government within the plume espo. plan not properly tested in the previous es.
EFE and each State within eretsas,
'%"2. Each licensee at each siteprovide S. All training.
shall Including exercises, annually,stion esposure shau pathway EPE.M for formal crtugues in order to iden-3,.rcise ttfy weak or deficsont areas that need cor-Eachits emergency ucensee a e-h plan.
ute shan enorme recuen. Any weaknames or dancionets that gga offatte authortues such that the state are identitled shan be corrected.
and local government emwgency plans for j
'och operaung reactor site are exercised bi- G. .lfstaistassa amergency preparedness
'susuy. with full or partial participauon
- U states and local governments, within the Pnytalons to be semployed to enom that E
the emusency plan, its tanplemonung pneo.
Ihusse governments exposure pathway that have EPZ. State and dures, and emergency equipment and sup.
fully partici.
- ted m a joint exeretse since October 1 pues an maantained up to date shan be de.
[981 are eligible to fully participate in sertbed, i
,mergency preparedness exerc;ses on a bien-g f
hal frequency. be as follows: The level of participauon Critetta to be used to deternains when, fol.
j l
<s) A State shau at least partially partici- lowing an wwame reentry of the facility pass in each offaite exercise at each site. would be appropetste or when opersuon (g) A 8 tate shall fu!!y participate in d could be resumed shan be deserthod.
gest one offsite esercise every 2 years.
(c) At least once every 7 years. all States V. IasPl.EsopSNe PhocEBUBEs eithin the pluane esposun pathway EFE for a given site must fully participate in an No less than 188 days prior to the sched.
offsete esercise for that site. This esercise uled issuance of an operaung 11eenes for a must also involve full participauon by local nuclear power reactor or a liesnee to passem governments within the plume exposun p3,,,,gga, nuclear matert
,,al the
,,,gappileant's
,,,, g,,gg,desaned
,,,,,,,,,lap
) Part participation by a local govern. plan shall be submitted to the r'a==i=8a=
ment during an offatte exercise for a site is as specified in i 88.4. Licensees who an nu.
smsptable only when the local government thortand to operate a nuclear power factuty is fully participsung in a biennial exsreise Shan subesit any changes to the emergency I plan or procedures to the Conunission, as te within any ingestion expo. spec 1M in i E4. mthin 30 daye M mh sure pathway EPZ shall exercise its plans
and preparedness related to ingestion espo. (Sees.181b i. and o Pub.' .83-708 88 sure pathway measures at least once every 5 Stat. 948 (42 U S.C. 2201); sec. 201, as years.
(f) Licensees shall enable any State or L. amended. Pub. ! J3-438. 88 Stat.1243. Pub. j 94-78 (42 U.S.C. 58411) '
local government located within the pluane exposure pathway EPZ to participate in (48 FR $8410. Aug.19.1980: 48 FR 28838, annual exercises when requested by such May 29.1981, as amended at 48 FR 83032.
State or local government. Dec. 30,1981147 FR 30238. July 13.1982: 47
- 4. Remedial exercises will be required if FR $7871. Dec. 28.1982: 49 FR 27738 July the emergency plan is not satisfactorily 8.1984: 51 FR 40310. Nov. 6.19881 !
tested during the blennial exercise, such Erruerrre Das Nors: At 51 FR 40310 that NRC. In consultauon with FEMA. Nov. 6 1988. Part 50. Appendis E was cannot find reasonable assurance that ade. amended by revisms secuan V effective quate protective measures can be taken in January $.1987. For the convenience of the user the superseded text !s set forth below.
- " Partial participation" when used in con- Appendia E=i Emergemey Ptanning and Presered.
Junction with emergency preparedness exer.
cases for a particular site means appropriate nees for Predertase and L'ullandee Facilities offsite autherttles shall actively talte part in , , , , ,
the esercise sufficient to test direction and control functions: La (a) protective action decialon making rotated to emergency action V. I o PnocuDngs levels, and (b) communicoden capsbultles No less than 180 days prior to the sched-among affected State and !wc authorttles uled issuance of an operaung ucense for a and the iteensee. nucisar power reactor or a license to pa -- {
539 i
I
)
poet 50, App. F 10 CPR Ch.1 (1-1-87 Ealig nuclear material one copy of the applicant's and perpetual surveillance, the Department detailed implementing procedures for its of Energy will take title to the radloactive emergency plan shall be submitted to the waste material upon transfer to a Federg Administrator of the appropriate NRC Re- repository. Before retirement of the repree; gional Office. specified in Appendix D of essing plant from operational status W ]
Part 20 of this chapter and two copies are to before termination of licensing pursuant to be sent to the Document Control Desk. U.S. I 50.82. transfer of all such wastes to a Fed Nuclear Regulatory Commission. Washing
- eral repository shall be completed. Federal ton. DC 20555. Licensee., who are authorized repositories, which will be limited in )
to operate a nuclear power facility shall number, will be designated later by the submit one copy of any changes to the Commission.
emergency plan or procedures to the Ad. 3. Disposal of high level radioactive fissio ministrator of the appropriate NRC Region- product waste material will not be permit al Office, specified in Appendix D.10 CFR ted on any land other than that owned and Part 20. and two copies to the Document controlled by the Federal Government.
o rol Desk within 30 days of such g gg plants shall be to facilitate decontamination ArrENotz F-Poucy REATING TO THE and removal of all significant radioactive SITING Or FUE1. REPROCESSING PLANTS wastes at the time the facility la permanent.
ly decommissioned. Criteria for the extent AND REATED WASTE MANAGEMENT Fa. of decontamination to be required upon de.
cII.ITIES commissioning and license termination will be developed in consultation with compe.
- 1. Public health and safety considerations tent groups. Opportunity will be afforded relating to licensed fuel reprocessing plants for public comment before such criteria are do not require that such facilities be located made effective, on land owned and controlled by the Feder. 5. Applicants proposing to operate fuel re, al Oovernment. Such planta. including the processing planta, in submitting information facilities for the temporary storage of high. concerning financial qualifications as re-level radioactive wastes may be located on quired by I 50.33(f). shall include informa-privately owned property. tion enabling the Commission to determine
- 2. A fuel reprocessing plant's inventory of whether the applicant is financially quall-high. level liquid radioactive wastes will be fled, among other. things, to provide for the limited to that produced in the prior 5 removal and disposal of radioactive wastes.
years. <For the purpose of this statement of during operation and upon decomminstoning policy. "high level liquid radioactive wastes ** of the facility, in accordance with the Com-means those acumus wastes resulting from mission's regulations including the require-the operation of he first cycle solvent ex- ments set out in this appendix.
traction system 01 equivalent, and the con- 6. With respect to fuel reprocessing plants ,
centrated wastes fiom subsequent extrac- already licensed, the licenses will be appro. '
tion cycles, or equivalent. in a facility for re* priately conditioned to carry out the pur-processing irradiated reactor fuels.) High* poses of the policy stated above with respe level liquid radioactive wastes shall be con- to high-level radioactive fission produ:*
verted to a dry solid as required to comply wastes generated after installation of new with this inventory limitation. and placed in equipment for interim storage of 11gu?
a sealed container prior to transfer to a Fed- wastes, or after installation of equipmem eral repository in a shipping cask meeting required for solidification without interm the requirements of 10 CFR Part 71. The liquid storage. In either case, such equ.. e dry solid shall be chemically, thermally, and ment shall be installed at the ear 11est practi.
radiolytically stable to the extent that the cable date, taking into account the time re-equilibrium pressure in the sealed container quired for design. procurement and installa-will not exceed the safe operating pressure tion thereof. With respect to such plants.
for that container during the period from canning through a mmimum of 90 days the application of the policy stated in this after receipt (transfer of physical custody) appendix to existing wastes and to wastes at the Federal repository. All of these high.
generated prior to the installation of such level radioactive wastes shall be transferred equipment, wth be the subject of a further to a Federal repository no later than 10 rule making proceeding.
years following separation of fission prod. (42 U.S.C. 2201. 2237; sec.181. Pub. L 83-ucts from the irradiated fuel. Upon recetpt* 703; 68 Stat. 948 (42 U.S.C. 2201); sec. 201.
the Federal repository will assume perma- Pub. L.93-438. 88 Stat.1242. (42 U.S.C.
nent custody of these radioactive waste ma" 5841))
terials although industry will pay the Fed-eral Government a charge which together [35 FR 17533. Nov.14.1970. as amended at ;
with interest on unexpended balances will 36 FR 5411. Mar. 23,1971; 42 FR 20139. Apr.
be designed to defray all costa of disposal 18.1977; 45 FR 14201. Mar. 5.19801 540 l
1
- _ _ _ _ _ - _ _ _ - _ - _ _ _ - _ _ _ _ _. _ _ _ - _ _ _ _ _ _ - - _ _ _ _ _ ________ __- __ _ _ . . _ _ _ _ _ A
Attachment 2 l
l
- Attachment 2
, 5$hTE OF NEW Y.ORK MI DEPARTMENT OF HEALTH
'70 gm gy LDING e THC ccvC AN04 NELSON A. 20cxtrELL EA EustRE sf ATE AL AZ A o ALsagv, QOQ([f$$
"JSWO 02v10 A X CL A00. M.D. ,
September 6, 1983 ?3 %P -9 P3'36 s
CifCi075Eci:C ;*'
- CCCAEima s si.av.t.*.
3 RANCH Sscretary of the Commission U.S. Nuclear Regulatory Commission Attn: Docketing and Service Branch VOCKU NUMa[R P8090$(0 @
)
{ g g (g{, g Washington, D.C. 20555
- GGntlement The Nuclear Regulatory Commission has proposed rovisions to 10 CTR Part 50 dealing with frequency and
. participation in exercises. The proposed rules were published
-in Vol. 48, No. 141 of the pederal Register, Thursday,
-July 21, 1983. e The stated intent of the rulemaking is to provide greater flexibility in implementing regu.lations determining tho frequency of emergency preparedness exercises. The NRC recognizes that a disproportionate amount of resources are bainq expended in order to conduct and evaluate exercises to the '
datriment of day-to-day upgraded state of emergency preparedness and correcting any deficiencies uncovered in previoQs exercises.
It appears that the proposed revisions do not accomplish the stated intent and if anything potentially exacerbate the problem thay seek to solve.
The rule provides for full participation and partial participation in exercises. Local governments in the 10 mile Ep2 as well as licensees retain requirements for annual full scale exercises. The rule allows the State to participate partially in the annual exercise with full participation by the State at least once every 7 years. There is a fallacy in assuming that the " partial participation" requirement would provide relief for many states, rull participation by local governments in an exercise generally requires fairly extensive participation by the state to exercise the response system, since exercises will of necessity include dose and accident assessment, protective action decision -
making, radiological exposure control, ingestion pathway determina- f i tions and recovery / reentry, most states will have a major role in l all exercises. It appears that the regulations were not drafted by j pcrsons familiar with integrated radiological response by licensec j staff and local and State agencies. l The National Eme:gency Management Association petitioned the NRC to require exercises on a biennial frequency unless TEMA and NRC determined that a greater frequency is required. Unfortunately, tho NRC proposed rule requires a deliberate action for a schedule less frequent than annually. As written, unless pEMA makes a recommendation l and NRC makes a finding that all major elements were performed I
}) 'S 10 ***;Wbyn:t..$$.h..,h L ( 7 . 0 Wp o. ' r' , \ W S 3 (A LJ \%.n a _ _ - - - _ - - _ - - _
s torily during'the previous exercise ard that another lsia?cise'is~not needed for up to 2 years, the annual full partici-
" ~ n' of..at .least local government agencies is required.
t .k.
- r. .
$r ' ( Regardless of intent or presentp'ractice, the proposed;r,uleyspecifically calls.for an annual exercise for each
,b1 Icniisse. at' each site _. Thus, Oswego and the four Indian Point
,' counties will.be required to participate fully twice.a year. The g#ffisi'te' plans, emergency communications sytem, etc. are the same
".4f62$2P.p2 and. Ip 3 as well as for Nine Mile Point and Fit 2 Patrick.
jF62i-[of fsite' planning and response, it does not matter which 41' ice,nsee'at.a site is assumed to have the potential problem.
[ r
. The proposed rule requires full participation by the te at least once in 7 years in eadh ingestion pathway EP3.
3
.'rther, clarification is needed on the extent of state participation, l(sincesfull
. 'ppear. warranted activationfor of the State exercises and District involving sites' EOCs, etc. does which impact onlynot
.the ingestion pathway EPZ.
w. .
y The proposed rule for anipxercise r each' licensee at qeac , site requires the State to participate fully at each site at !
rvienst twice each 7. years instead of the stated intent of at least ,
tj Once'in 7 years. Apparently, NRC staff failed to consider the l
9 ' dique situation of dual licensees at the Nine Mile Point and-l ndian Point sites.
v.
.! .f ' for participation The proposed rulemaking appears,to require that licensees
- revide by Federal emergency response agencies in .
I i tileast one exercise every 7 years. Although Federal participation A s desirable, this provision is an apparent mandate on the licensee
~
)
? ' var events in which they have no control. If this provision were in ffect, we should have had Federal participation in at least two of P bur exercises to date. With the exception of limited NRC participa- .
" lon, active participation by Federal agencies has been lacking. There {
, should be a different vehicle to require Federal participation than j hrough 10 CFR regulations.
2
- 4. / . .
The proposed rule calls for formal critiques for all training nd. exercises. This should be clarified so that :he training One of acquirement is for licensees and not for offsite agencies.
'tha quickest ways to minimize participation by volunteer response organizations.is to require formal critiques after receiving training.
ditionally, the requirement for formal critiques for all exercises is unnecessary and too restrictive. Formal critiques should be equired as part of the annual exercise. Many drills and exercises
. ro.for training rather than evaluative purposes and provide for natant' feedback and evaluation without necessity for formal critiques, q ..
t i ,.i Attached are charts of exercise frequencies for three different situations. In all three, for planning purposes, Shor'eham i was considered as requiring an exercise for an operating license followed by Indian Point as the next most pressing sita; In each
. case, an attempt was made to even out the workload. In all three cases,wpartial participation by the State is indicated according to proposed rules, even though it is doubtful that a meaningful exercise an be completed without substantial state participation. The third N;
i
' T. 1 .'
i.e., biennial exercises I'Ecas$irepresents a preferred situation, .Even under this .
}r'ot.e'ach'sitealternatedbetweenlicensees.<, situati6n, the state would p S' three '(3) exercises per year.
."i/ ~
- : n- '
3..' Your attention and review of our comments will 8'b5ckppreciated.
Sincerely yours, O
. r4
~
'onald . avidoff irector /
- Radiological Emergency
... Preparedness Group i
.,' Atts.
4 I
el .
O e
4 9 4
'6 e
CASE 1. 7::pesed' rules 'dere adopted. .N: re :=endation or. finding en exercise frequency.
2 :. .- R i
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9 [ ,
. l s e
'l .= l.
6 l 7 l I I l
Pl=e - In State ;
i i J
p 8 5hereham . T X X '
X ' X X X l . i i
~? 2 X T ; X ! X l X l- X X j i .i i
IP 3 l X i X l X_ X l T X X Ginna X X F X X X X i
l g SMP X X' I M I T X ! X X I
' i AT X ! X l X X X X T I I Plume Cut of Stata l l
. . 'e
-Millstene 1 X X X X I X , F X-i
~nges: ion Caly .
l' l l s/ . .l a ,.X. .,.. -
s -- I - - - -
. . l !
l <
6, i } . I l Haddam .Nack - -
i
= f 4
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- v. a k e ._ .2~.-.,.e
- - - i -
l -
{ s -
- , 1 I,
l i I
- o. s
_. e. _- r-_- m_ o <
i i _i i -
o Kay F - Full participation by State and local gover= ental agencias and licenses within the p1=e IPZ.
X - Full participa:icn by licenssa and 1::a1 govern., ental agencies -- partial participa:ica by state.
5'- Full parti:1pation by State within the :.nge s tien
....a ww
-...4
-.v. s . a e . .--e..3e8.
CASE 2.
~
FD% rec 0= ends and SEC makes a finding that next exercise is,not needed up to 2 years.
- V T
+ - A. R 1
I , t 3 g ,4 -
.s 3 o I
Plume - In State :
I l
5horeham F - - i X ,'
i X -
X
- p 2 ! -
l F l -
! X -
X -
4 a
- # i !
- P 3 i X l -
} X l -
F -
X l \
Ginna X 1 -
1 F -
X -
X l- ..
'* l i NMP -
I X -
l' F l -
X -
i j JAF X -
X i -
I X -
F Plume - Out o f State l I l -
M ilstone -
X I -
- X -
F -
Inces: ion Cn1Y
- l s
Vt. Yankee i -
5 i - -
r l
l Haddam Neck e I -
l 5 - - -
i van:<ee acwe - -
i - - ,l -
s l -
! l 1
- l. l i Ovs er Creek 1 - -
._- 1 l -
l 5 l l j Key F - Full participation by State and 1: cal g:ver= ental agencias and licensee within the plume Epz.
X - Full participa ion by licensee and le=al governmental agencies -- partial participation by State.
S - Ful' ra..d ,
d-a..da.. , - - w
- f a~ ~. .a. . e w d * '... .d .e. *..b. e .4 . . q a,,, S . J .., .=.
pataway EPZ fOr =M: Cf 5: Ate licensee.
4 1
I i
. CASE 3-Exercises,on biennial basis at each site, i
1 y - a f- L Q __.S
'}
!1 -l 2 ! 3 l 4 .I 5 I 6 l 7 Plc.e -~In State.- .
Shoreham .F -
X -
X -
l X
)
rr 2 !' -
F l-i I x -
IP 3 - - -
X - - '-
Ginna X -
, -F -
X -
X
.NMP {' - -
c.
__- F - - -
JA7 -
X - -
! X -
Plume - Out of State I
,i '
Millstone I -
X l -
i X i
F -
I i {
g Ingestion-Only l
-8 Vt. Yankee -
- l- -
1 l 3 -
Haddam Neck t
5 - -
I i
Yankee Rcwe I -
S Cyster craek - - -
l - - -
! S Kev i
F - Full participation by 5 tate and local ecye.- .--,,
agenc.tes and li:ensee - *-
wa...4,. . . . . . , -., , , e :. .. ,_ , " "
X - Fu'.1 participation agencies - by licensee and local governmental partial participation by State.
S - Full participation by State within the ingestien pathsay EPz for cut Of State licensee.
I
Attachment 3
)
1 1
i i
1 1
- Attachment 3 STATE OF NEW YORK PUBLIC SERVICE COMMISSION ,
i '
OPINION NO. 87-26 CASE 29484 - Proceeding on Motion of the Commission as to the rates, charges, rules and regulations of .
I Long Island Lighting Company for electric I service.
OPINION AND ORDER DETERMINING REVENUE REQUIREMENT' l
Issued: December 3, 1987 i
__.m._._.._ _____ m.-.__,_.,.__. _ _ _ , _ - - - _ _ , _ _ . , _ _ . _ _ _ - . _ _ _ _ _ . . . . , , _ - _ _ - _ _
CASE 29484 TABLE OF CONTENTS Page APPEARANCES INTRODUCTION 1 THEORY OF THE CASE AND CASH FLOW ISSUES 3 COST OF SERVICE ISSUES 10 CONCLUSION 14 ORDER 15 APPENDICES CONCURRENCES l
e I
CASE 29484 Page 1 of 2 STATE OF NEW YORK PUBLIC SERVICE COMMISSION APPEARANCES I Richard C. King, Esq. and Glenn D. Haake, Esq., of Counsel, Three Empire State Plaza, Albany, New York 12223, for the Department of Public Service.
Anthony F. Earley, General Counsel, Victor A. Staffieri, Assistant General Counsel, Joy Johnson, Esq., Richard A.
Rapp, Jr., Esq., Jeffrey L. Futter, Esq., Robert Fernandez, Esq. and Roberta B. Kotkin, Esq., 175 East Old Country Road, Hicksville, New York 11801, for Long Island Lighting Company.
LeBoeuf, Lamb, Leiby & MacRae (:By: Samuel Sugden, Esq.),
520 Madison Avenue, New York, New York 10022, for Niagara i Mohawk Power Corporation.
l Robert Abrams, Attorney General (By: Adrian Johnson, Assistant Attorney General, Charlie Donaldson, Esq. and Alfred L. Nardelli, Esq.),.120 Broadway, New York, New York 10271,.for the New York State Department of Law.
Richard Kessel, Executive Director (By: Joel Blau, Director of Utility Intervention,. Alfred Levince, Esq., Utility Intervenor and Rafael Epstein, Esq.), 99 Washington Avenue, Albany, New York 12210, for the State Consumer Protection Board.
Steven E. Katz, M.D., Commissioner (By: John B. Carroll, House Counsel), 44 Holland Avenue, Albany, New York 12229, for the NYS Office of Mental Health.
Edward T. O'Brien, County Attorney (By: Jack 01 chin, Deputy County Attorney), County Executive Building, One West Street, Mineola, New York 11501, for the County of Nassau.
Paul, Weiss, Rifkind, Wharton & Garrison (By: Brad S. Karp, Esq. and Douglas McKeige, Esq.), 1285 Avenue of the Americas, New York, New York 10019, and Kirkpatrick &
Lockart (By: Alan R. Dynner, Esq. and Jonathan Eisenberg, of Counsel), 1800 M Street N.W., South Lobby, Washington, ,
D.C. 20036, for Suffolk County. !
CASE 29484 Page 2 of 2 Brown, Olson & Wilson (By: Peter W. Brown, of Counsel), 21 Green Street, Concord, New Hampshire 03301, for the Independent Power Producers of New York.
Howard Rapaport, Proprietor, 210-09 67th Avenue, Bayside, New York 11364, for the In-Novo Engineering & Development Company.
STATE OF NEW YORK PUBLIC SERVICE COMMISSION COMMISSIONERS:
Peter Bradford, Chairman Harold A. Jerry, Jr., concurring Gail Garfield Schwartz Eli M. Noam James T. McFarland, concurring I Edward M. Kresky Henry G. Wiliams CASE 29484 - Proceeding on Motion of the Commission as to the rates, charges, rules and regulations of Long Island Lighting Company for electric service.
OPINION NO. 87-26 OPINION AND ORDER DETERMINING REVENUE REQUIREMENT (Issued December 3, 1987)
BY THE COMMISSION:
INTRODUCTION On November 26, 1986, the Long Island Lighting Company (LILCO or the company) filed revised tariff leaves designed to produce an increase in base electric rates (i.e.,
rates exclusive of fuel adjustment clause charges) of $102.3 million for a rate year ending September 30, 1988. The filing would result in ratepayers paying rates that are about 5.2% higher than in the year before the rate year. (The gross increase--6.5%--was expected to be offset by S19 million of fuel savings associated with the Nine Mile 2 nuclear
CASE 29484 plant.) The filing envisioned that Nine Mile 2 would commence commercial operation on June 1, 1987 and that Shoreham would commence commercial operation on September 1, 1987, although it proposed to remove the effects of s
Shoreham's operation from the rate year revenue requirement.
We suspended operation of the proposed leaves through October 24, 1987.
During the course of the proceeding, as it became apparent that Nine Mile 2 would not achieve commercial operation on the date assumed by LILCO, the company revised its presenta: ion, and now seeks a base rate increase of $23 ,
million. In consideration for the opportunity to update its filing, the company agreed to extend the suspension period by about six weeks, to December 5, 1987.
Public statement hearings were held on February 4, 1987 in Mineola, February 5, 1987 in Hauppauge, and February 17, 1987 in Riverhead, before Commissioner Gail Garfield Schwartz, Secretary John J. Kelliher, and Administrative Law Judge William C. Levy.1 Prehearing conferences were held before Judge Levy on January 13 and April 2, 1987, and nine days of evidentiary hearings were held during the period March 3, 1987 to June 25, 1987. The record comprises 2,451 pages of testimony and 76 exhibits.
1 The interoffice memorandum from Judge Levy summarizing the public statement hearings is Appendix C to the recommended decision.
CASE 29484 The active parties to the case include the company; the Department of Public Service staff (staff); the Ratepayer Coalition, comprising the State Consumer Protection Board, Suffolk County, Nassau County and the Town of Hempstead (the Coalition); the Department of Law (DOL); the Independent Power Producers of.New York State, Inc. (Power Producers or IPPNY); and In-Novo Engineering and Development Company (In-Novo). Briefs to the Judge were filed by all of the active parties as well as the New York State Office of Mental Health (OMH).
In his recommended decision, which was issued on September 2, 1987, Judge Levy recommends staff's position, that LILCO be permitted increased annual electric revenues of
$50 million (3.1%) . The Judge also recommends the Coalition's proposal that LILCO not be allowed to make dividend payments during the rate year without our consent.
Briefs on exceptions and briefs opposing exceptions have been filed by each of the active parties; a brief on exceptions was also filed by OMH. CPB, Suffolk, and DOL have requested oral argument, but we find the issues to be adequately developed in the record and deny the request.
THEORY OF THE CASE AND CASH FLOW ISSUES This rate case, like all LILCO rate cases in recent years, is dominated by the company's continuing struggle to license its Shoreham power plant. One need not take sides in the Shoreham debate to see that the long deadlock threatens
CASE 29484-Long Island's future power supply, as well as the company's survival.
1 l
The record in this proceeding will not support a rate increase using conventional ratemaking principles. In fact, traditional rate setting practices would not include l the substantial revenues provided through.the financial
. stability adjustment (FSA), the vehicle designed by the Commission to enhance LILCO's cash earnings.1 The Commission used its discretion in recent past cases to supplement rates derived through conventional rate-making with extraordinary rate increases for the' purposes of avoiding bankruptcy, improving the company's financial health, and smoothing rate increases over time. But the grant of such cash flow is intended to be a temporary mechanism with the prospect of discontinuance when the plant under construc-tion'is completed and enters service. It is justified when the costs to customers are less than those resulting from not allowing the increased cash flow. That fundamental test cannot be met convincingly as the uncertainty of Shoreham's operation mounts. Furthermore, it is now clear that the continued provision of extraordinary cash flow has had unintended and unfortunate consequences.
1 '
We first applied the FSA in LILCO's penultimate rate case and continued it in the most recent proceeding. Case 28553, Long Island Lighting Company - Electric Rates, Opinion No. 84-22 (issued Augus 27, 1984); Case 29029, ,
Long Island Lighting Company - Electric Rates, Opinion No.
86 ' (issued January 24, 1986). The FSA differs in its operation from the inclusion of construction work in progress in rate base, but it achieves a similar result.
a ___ __ _
. CASE 29484 Specifica11yr the continued provision of cash flow enhancement has prolonged a financially debilitating deadicek over Shoreham. That deadlock and uncertainty have jeopardized the fundamental goal of electric utility I
regulation--the, assurance of a reliable and reasonably priced power supply.. .The uncertainty raises costs, saps.LILCO's
. financial resources, inhibits power supply planning, consumes the attention of top management, and poisons the company's relationship with its customers and the government that they elect. It is in no one's' interest for this situation to continue.
The ratemaking policies over which we have discretion must be designed to bring stability to the price and_ supply of electricity on Long Island. We have, as noted, used the FSA as the principal mechanism for providing LILCO with cash flow assistance. This adjustment makes rates higher.now and lower in the future than they would be under normal ratemaking practices. The adjustment is entirely discretionary and can be increased, reduced or eliminated if any such change is rational and in the public interest. In I this' case, LILCO and staff' urge that we increase cash revenues; 1
other parties urge a decrease.1 But neither course is now in the public interest.
1 More specifically, LILCO seeks a revenue increase of $83 l
l million, while staff proposes allowing $50 million. The l Coalition would reduce revenues by $60 million, and DOL would' reduce them by 8385 million.
U _ _ _ _ _ _ _ _ _ _ - _ _ - _ _ . _ _ _ _ - -
CASE 29484 The record shows no compelling need for any increase i
in cash revenue at this time. Unlike the~1ast two LILCO rate k
cases, the company faces neither an imminent threat of bank- 1 ruptcy nor a strong need to support financing with a' cash flow enhancement. Since the need is not compelling,'an increase in the cash revenue at this time would imply our acceptance of the continuing uncertainty flowing from the deadlock over Shoreham.
Shoreham cannot be counted on to be in operation-before the 1989 summer, peak, and it is conceivable that the plant may never operate. Acceptance of the proposed increase in the FSA at this time would do nothing to encourage LILCO's serious attention to the development of alternative means to satisfy Long Island's need for power in the short- and long-term future.
The power supply planning problem is particularly acute, for LILCO's reserve margins are already below desirable levels, and its dependence on oil is excessive.
While the company deserves credit for the high reliability of i
its units during the record 1987 summer peaks, the situation I remains precarious. Furthermo,re, the company cannot proceed equally vigorously in preparing for Shoreham and non-Shoreham !
futures.
In a future without Shoreham, the amounts to be paid to buy generating capacity or to encourage energy con-servation and load management will be higher than in a future in which Shoreham is assumed to come on line soon and operate
1 CASE 29484 reliably. To find the equivalent of 820 megawatts by the early 1990s will not be easy, and the task cannot be sensibly pursued in an atmosphere of prolonged uncertainty over Shoreham.
The extraordinary level of public opposition to this plant is a real and consequential force under our system of government. It will continue whatever actions we or the company may take. The company may feel deeply justified in its past pursuit of the plant, but its foremost duty is to supply power on reasonable terms that are acceptable to the public that it serves as well as to its stockholders.
For these reasons, we find no basis for increasing cash revenues while the deadlock over Shoreham continues.
But neither should rates now be reduced, for LILCO should be given a reasonable period of time to re-evaluate and readjust its goals. We therefore will review this matter again in April 1988 to see if any rate revision upward or downward is then in order.
During the period between now and April, we trust the parties to the Shoreham matter will break the long deadlock so that the Long Island community can look to the future with assurance that their power supply will be safe, adequate, and reasonably priced.
We emphasize that we are not now taking sides as to the merits of the company's effort to license Shoreham, nor c;? 90 making any decision as to the future rate treatment of unresolved Shoreham issues. Indeed, LILCO may seek in April
CASE 29484 to demonstrate a clear basis for high confidence that Shoreham will operate to meet the 1989 peak season and beyond.
Such confidence does not now exist, and unsuccessful pursuit ,
of this option could retard alternative power supply planning in unacceptable ways.
Just as .LILCO needs to re-evaluate its goals, it is .
also important to realize that denying recovery of prudent Shoreham investment or some equivalent if the plant does not operate has the effect of forcing LILCO to continue its efforts to license the plant. LILCO will not abandon Shoreham if doing so precipitates its own demise. While it is too soon to commit ourselves to specific ratemaking treatment, the underlying need for principles that harmonize the company's acanomic self-interest with the desires of its customers must :be recognized if the deadlock is to be broken in the context of our Tegulation of f TrCO short of )
bankruptcy.
With these understandings, and with the Shoreham struggle over, it should be possible to address Long Island's power supply needs and LILCO's financial n.. th on a con- ..
structive basia . involving all relevant governmental entities.
We remain ready to assist--through mediation or other means--in the resolution of these problems.
We have referred to our plan to review the case in April. Some words are in order about the nature and scope of that proceeding.
CASE 29484 First, the reopened proceeding will be primarily a revisitation of the justification for increased or decreased cash flow. It will include as well several other matters concerning which judgment now is reserved: ~ the proposed partial pass-through fuel adjustment clause; dividend restrictions; executive compensation agreements; payments for certain lobbying expenses;l and the recovery of extraordinary costs related to Hurricane Gloria. We also leave unresolved the rate design issues before us in this case, but we expect to take those up well before April.
Second, the April proceeding will incorporate and take as its starting point the record compiled thus far.
Further hearings will be limited to facts arising since this record was closed.
Finally, we direct LILCO to address itself, as part of its pre-filed testimony, to the following concerns:
- 1. The company must show that it has developed and will put into effect reasonable plans to provide reliable electric service without generation from Shoreham. A significant part of that plan should be an ambitious conservation / loa;d. management effort and a pursuit of cost-justified independent power production or other sources.
1 This item is the subject of a pending petition by the Consumer Protection B6ard, designated Case 29664.
~9-
CASE 29484
- 2. The company should provide evidence of progress in carrying out the recommendations for improved productivity set forth in the recent management audit by Arthur Young, Inc. Following many of these 215 recommendations--in consultation with our staff--should permit the company to improve the efficiency of its operations.
- 3. The company should demonstrate progress toward establishing its Board of Directors as a significant oversight body in a manner consistent with LILCO's broad public service obligations.
For the reasons discussed earlier, we have decided to allow no additional cash flow relief now. We turn next to our basis for concluding that no increased revenues are warranted by our analysis of the cost-of-service issues.
COST OF SERVICE ISSUES This proceeding is driven primarily by the cash-flow and Shoreham-related issues discussed above.
Nevertheless, the parties litigated numerous cost of service .
issues, and the Judge has resolved them in his recommended decision. We have reviewed his recommendations and the exceptions to them, and we find them, by and large, to be sound and to yield an overall result that is just and reasonable.
CASE 29484 We adopt the Judge's recomm:nded resolutions, subject to the following necessary modifications and updates.
To begin, we find unpersuasive LILCO's arguments concerning the proper federal income tax rate to be used to determine operating income. The slip in the suspension period has extended a greater portion of the rate year into 1988, the tax rate in which is lower than in 1907 pursuant to the Tax Reduction Act of 1986. LILCO would ignore this slip in determining the proper " blended" rate.1 Staff's position, endorsed by the Judge, would reflect the lower rate and reduce the blended figure from 35.5% to 34.5%.
We agree with staff. The tax rate is different from more controversial projections of rate year costs, which are not being changed, and is more ministerial: the known rate is simply applied to other numbers to get to the end result. In these circumstances, a more accurate tax rate that reflects the slipped suspension date is acceptable.
We also shall not adopt the Coalition's proposal to decide now the criteria for determining the commercial operation date of Nine Mile 2. We have not taken such action with respect to other generating units. The Judge's analysis, favoring an informed, after-the-fact review, is adopted.
1 A rate reflecting, pro rata, the different (calendar year) tax rates for the rate year, which spans two calendar years. Additionally, we note that there will be a further reduction in 1988. If the company does not file a rate case in which those savings can be reflected, we shall defer them for later disposition.
1
CASE 29484 The Coalition also has failed to provide the kind of evidence needed to reach an informed decision on manage-ment salaries, and we reject its proposal that rates reflect no increase. Staff's proposal to limit the increases to the GNP price deflator for 1987 and 1988 provides a reasonable middle ground, which we adopt. A similar rationale applies to our resolution of whether the company should be allowed
" normal" research and development expense or whether some lesser, austerity-based allowance should be continued. Staff and the company have agreed to an allowance less than the company initially proposed, the Coalition regarded even this as excessive. The record does not require adoption of any party's position, and staff's middle ground represents, for now, a reasonable conclusion.1 Next, DOL has raised several issues that were not discussed by the Judge. These include challenges to the company's practices concerning various executive and legal costs and political activities. We have reviewed DOL's arguments--both to the Judge and on exceptions--but shall not now make the adjustments it proposes. However, we share the concerns raised by DOL. The company should, for example, develop guidelines for the various executive costs along the lines suggested by DOL. We shall, moreover, direct our staff 1 Our decision implies no acceptance of the reasonableness of the overall compensation for LILCO's senior executives, a subject over which we are reserving judgment pending further review in April 1988.
f L_______._.________ _ _ _ _ _ ___ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
CASE 29484 to monitor closely these aspects of the company's operations, placing special emphasis on insuring that the company does not take ratepayer-funded legal actions for improper ends.
We shall, for present purposes, adopt the Judge's--and staf f's--recommended 14.2% cost of equity.
Staff's method is a valid approach in these circumstances (where the company does not pay a dividend) and we shall adopt it for now.
Additionally, there are other instances where the record warrants further examination in April. The most obvious such issue, of course, is the right level of cash-flow and we shall revisit that issue then. In the same 's vein, we shall consider the propriety of a dividend payment restriction and of the company's executive arrangements at that time. We shall retain the full record of this pro-ceeding for such review in April.
On the other hand, there are several instances .
where the record may be updated and a decision reached now.
First, we shall make various adjustments to reflect information not available until now. These adjustments are l
listed in Schedule 5 of Appendix A and largely represent the traditional updating of the re' cord that is our practice.
Second, we shall determine property tax expense using the company's method and the updated information it supplied. That method is appropriate inasmuch as it reflects actual addir. ions and is likely to reflect the company's actual cost.
CASE 29484 Third, we shall not include dividend taxes in rate year expenses. Although we have allowed such costs as an expense in the past, such action now is inconsistent with the uncertainties that face LILCO. We shall, however, allow the company to defer any such costs it incurs and petition us for their recovery.
Fourth, we adopt staff's proposal to use the Tax Reduction Act benefits as a rate base offset until their final disposition is determined.
Fifth, as staff proposes, we shall require the company to defer, for future disposition, any property tax refunds not reflected in the revenue requirement determined today.
Finally, we shall require that the company reset the earnings ccp as of May 1, 1987, as proposed by staff.
Staff's proposal will isolate the effects of possible earlier overearnings. By resetting the cap as of May 1, overearnings for the period before that date would not be offset by sub-sequent underearnings.
CONCLUSION Our resolution of the issues presented in this cass 1eads us to conclude that Long Island Lighting Company l
requires no additional annual revenues from electric service.
Our detailed computations are set forth in Appendix A.
CASE 29484 The Commission orders:
- 1. Long Island Lighting Company (the company) is directed to cancel the tariff leaves and supplements listed in Appendix B on or before December 5, 1987.
- 2. The company is directed to file amendments to its tariff schedules consistent with this opinion and Order.
The company shall serve copies of this compliance filing on all parties filing exceptions or replies to exceptions in 5
this proceeding. Any comments on the compliance filing must be received at the Commission's offices within ten days of service of the company's proposed amendments. Amendments specified in the compliance filing shall not become effective on a permanent basis until approved by the Commission. The company is directed to file the amendments within 30 days of this Opinion and Order, on not less than one day's notice, subject to further revisions if any showing is made that the tariff amendments are not in full compliance with this The requirement of 566(12) of the Public opinion and Order.
Service Law and 16 NYCRR 136.70, that newspaper publication must be completed before the effective date of the amendments authorized in this paragraph, is waived; but the company shall file with the Commission, no later than March 5, 1988, ,
proof that a notice to the public of the changes proposed by the amendments and their effective date has been published once a week for four successive weeks in a newspaper having general circulation in the counties affected by the amend-ments.
L _ - - - - - - - ---_____--- _ _ _ _
CASE 29484
- 3. The Financial Stability Adjustment (FSA) revenues, equal to $322.2 million of the rate year electric revenues here authorized, will be terminated in the event the company files a petition for relief in a voluntary case under the Bankruptcy Act or if a final order of relief is entered in an involuntary case under such Act and any right of appeal of such order has been exhausted. In that event, alternative rates which exclude the FSA revenues will become effective on one day's notice. Those alternative rates, embodying a reduction in the customer and minimum charges on an equal percentage basis and in the demand and energy charge on a uniform per unit basis, shall be designed to yield only the conventional revenuo requirement determined in this opinion and Order, except that the convention 1 revenue requirement shall be deemed to include those Nine Mile 2-related revenues granted herein once the plant enters commercial operatien.
The company's compliance filing shall include, on each appropriate tariff leaf, a provision specifying the rate reduction that would take effect in the event of such above-described bankruptcy proceedings.
- 4. The Nine Mile 2-related revenues, equal to about $113.2 million of the rate year electric revenues here authorized, will be terminated in the event the company files l
a petition for relief in a voluntary case under the Bankruptcy Act or if a final order of relief is entered in an involuntary case under such Act and an/ right of appeal of such order has been exhausted prior to the commercial in-service date of
CASE 29484 Nine Mile 2. In that event, alternative rates which exclude the Nine Mile 2-related revenues will become effective on one day's notice. Those alternative rates, embodying a reduction in the customer and minimum charges on an equal percentage basis and in the demand and energy charge on a uniform per unit basis, shall be designed to yield only the conventional revenue requirement determined in this Opinion and Order.
The company's compliance filing shall include, on each appropriate tariff leaf, a provision specifying the rate reduction that would take effect in the event of such above-described bankruptcy proceedings.
- 5. The conventional revenue requirement, equal to
$1,189.4 million of the rate year electric revenues here authorized, shall be subject to an equity earnings cap. The earned equity return will be computed monthly starting May 1, 1987 and any excess will be deferred. The deferrals will be accumulated and subject to future disposition for the benefit of ratepayers. In the event the company earns less than' its allowed return in any month, the accumulated deferral will be reduced by the shortfall, but the amount in the deferral l
l account shall at no time be less than zero.
1 l
- 6. The company shall defer, for disposition in accordance with the determination to be reached by the Commission, the property tax refunds referred to in the foregoing opinion to the extent that they have not yet been reflected in the revenue requirement.
CASE 29484
- 7. The company shall submit to the Commission, by February 1, 1988 evidence demonstrating the reasonableness of costs it incurred in restoring service and repairing damage to its system after Hurricane Gloria.
- 8. By April 1, 1988, the company shall submit to the Commission material as described in the foregoing Opinion, and supporting any assertion that it should be allowed to continue collecting FSA revenues.
- 9. Except as here granted, all exceptions to the Administrative Law Judge's recommended decision are denied.
- 10. To the extent it is consistent with this Opinion and Order, the recommended decision of the Administrative Law Judge is adopted as part of this Opinion
- and Order. .
- 11. This proceeding is continued.
By the Commission, (SIGNED) JOHN J. KELLIBER Secretary l
l I
C.29404 LONG ISLM D LIGHTING COMPANY Appendix A COST OF SERVICE
SUMMARY
- ELECTRIC- PER COMMISSION Schedule 1 FOR TR TVELVE MONTHS ENDING SEPT 30, 1988
$(000)
AS AS COMMIS$10N AS ADJUSTED AdJ. COMMISSION ADJUSTED REVENUE FINALLY BY EJ No. ADJUSTMDTS BY COMM REQUIREMENT ADJUSTED OPERATING REVENUES 9 ALES OF ELECTRICITY $1,624,756 $1,624,756 $0 $1,624,756 OTHR OPERATING REVDUES 8,465 (1) (573) 7,892 7,892 TOTE $1,633,221 ($573) 81,632,648 $0 $1,632,648 53533333333 . 5533 3535 33333..S..E .3333 33... 33 33 33 33 OPERATING IIP DSES OPERATION M D MAINT. EIP. $639,308 (2-6) ($1,038) $638,270 $0 $638,270 CHARITABLE CONTRIBUTIONS 0 0 0 DEPRECIATION 65,791 65,791 65,791 9AIES OTHER THM INCOME TAIES 255,227 (7) (1,852) 253,375 0 253,375 AMORTIZATION OF PROPERTY LOSSES 32,899 (8) (29,107) 3,792 3,792 0 0 0 MORTI!ATION OF NEGATIVE AFUDC TOTE $993,225 ($31,997) $961,228 $0 $961,228 OPERATING INCOME BEFORE FIT $639,996 $31,424 $671,420 $0 $671,420 FEDERE INCOME TAIES $195,586 (9) $5,023 $200,608 $0 200,608 NINE t!!LE 2 RELATED REVENUE ADJUSTMu f 65,478 (10) 5,278 70,756 70,756 FINMCI AL STABILITY ADJUSTMDT 201,475 201,475 201,475 NET OPERATING INCOME $177,457 $21,123 $198,580 80 $198,580
........... ........... ........... ........... ......... 3 NET UTILITY PLANT $1,264,792 $0 $1,264,792 $0 $1,264,792 CONSTRUCTION VORK IN PROGRESS 405,700 (11) (188) 405,512 0 405,512 l 164,207 VOREING CAPITE 164,178 (12-14)* 29 164,207 0 l (72,927) 47,364 i DEFERRED COSTS 120,291(15-18) 47,364 0 ACCUMULATED DEFERRED F.I.T. (98,875) (19) (17,32 ) (11 99) 0 (116,199)
TOTE $1,856,086 ($90,410) 81,765,676 $0 $1,765,676 3533333 33. 33333333335 533SSS5355F S3333333333 33333333333 RETURN ON RATE BASE 9.56% 11.25% 11.25%
38833333333 33333338583 0 33333333338 1
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C.29484 LONG ISLAND LIGHTING COMPMY Appendix A ELECTRIC OPERATION AND MAINTENU CE EXPENSES- PER COMMISSION Schedule 2 FOR THE TVELVE MONTHS HDING SEPT. 30, 1988
$(000)
PROFORMA AS COMMISSION AS PER Adj. COMMISSION COMMISSION ADJUSTED REVENUE FINALLY DESCRIPTION ALJ No. ADJUSTMENTS INFLATION BY COMM REQUIREMENT ADJUSTED FUEL $396,921 $396,921 $396,92)
LABOR 115,711 (2) (81) 115,630 115,63(
FRINGE BD EFITS 16,961 (63) 16,898 16,891 INSURANCE 6,210 (3) (56) 6,154 6,15 MATERIALS AND SUPPLIES 17,412 (65) 17,347 17,34".
CONTRACTORS 24,702 (92) 24,610 24,61(
LEGAL, ACCTG. 8 SPEC. SVCS. 7,232 (22) 7,210 7,21(
POSTAGE 2,050 (8) 2,042 2,04; INVOICES 3,053 (10) 3,043 3,04:
INJURIES AND DAMAGES 2,363 (9) 2,354 2,35 OFF.0UPPL. STAT. AND PRINTING 1,340 (5) 1,335 1,33!
STORM DAMAGE 2,500 2,500 2,50i UNCOLLECTIBLES 7,103 7,103 $0 7,10:
TELEPHONES 5,865 (22) 5,843 5,84 RENTS 5,720 (21) 5,699 5,69' DEP. FROM CLEARING 2,516 2,516 2,Sli 00E3 1 MEMBERSHIPS 2,302 (8) 2,294 2,29-PSC ASSESSMENT 3,951 (4) 316 4,267 4,26' CORP. AND FISCAL EXPENSES 2,203 (8) 2,195 2,19' INFO. 81NST. ADVERTISING 1,228 1,228 0 1,22 AMot?!!ATIONS 15,847 (5) (884) 14,963 14,96:
TRANSF. 8 METER INSTALL.CRS. (2,404) (2,404) (2,40$
OTHER EMPLOIEE COMPENSATION 33 33 33 PRODUCTIVITY! ADJUSTMENT (1,511) (1,511) (1,511 TOTAL $639,308 16) ($705) ($333) $638,270 $0 $638,270
C.29484 LONG ISLAND LIGHTING COMPANY Appendix A COMPUTATION OF ELECTRIC FEDERAL INCOME TAIES- PER COMMISSION Schedule 3 FOR T R TWELVE MONTHS INDING SEPT. 30,1988 8(000)
AS AS COMMIS$10N AS ADJUSTED Adj. COMMISSION ADJUSTED REVENUE FINELY BY EJ No. ADJUSTMENTS BY COMM REQUIREMBT ADJUSTED TOTE OPERATING INCOME BEFORE FIT $639,996 $31,424 $671,420 $0 $671,420 TOTE INTEREST CHARGES 409,912 (5,263) 404,649 404,649 INCOME BEFORE TAIES $230,084 $36,687 $266,771 $0 $266,771 PERMANU T DIFF./FLOV THROUGH ADJ.
INTERES9 ADJUSTMENT $303,012 $303,012 $303,012 LIEN DATE PROPERTY TAI - NON NUC. (7,300) (7,300) (7,300)
JAMESPORT ABMDONMENT 22,128 (22,128) 0 0 POR7 JEFFERSON COAL CONVERSION 1,056 1,056 1,056 BOOK OVER TAI DEPH. - NON NUC. 23,979 23,979 23,979 UNCOLLECTIBLES ACCRUE 1,646 1,646 1,646 REMOUAL COSTS (2,100) (2,100) (2,100)
OTHER ITEMS MD ADJUSTMENTS 207 207 207 TOTAL PERMANDT DIFF./FLOV THROUGH ADJUSTMENTS $342,628 ($22,128) $320,500 $0 $320,500 BOOK INCOME SUBJECT TO TAI $572,712 $14,559 $587,271 $0 $587,271 FEDERE INCOME TAI f 34.5% $197,586 $5,023 $202,608 $0 $202,608
!TC UTILI!ED LIABILITY 0 0 0 DEFERRED ITC 0 0 0 EXCESS DEFERRED TAI CREDITS (2,000) (2,000) (2,000)
TOTE F.I.T. PROVISION $195,586 (9) 85,023 $200,608 $0 $200,608
C.29484 LONG ISLAND LIGHTING COMPM Y Appendix A RATE BASE
SUMMARY
- ELECTRIC- PER COMMISSION Schedule 4 FOR THE TVELVE MONTHS ENDING SEPT. 30, 1988 Page 1 of 2
$(000)
AS AS COMMISSION AS ADJUSTED Adj. COMMISSION ADJUSTED REVENUE FINALLY BY ALJ No. ADJUSTMENTS BY COMM REQUIREMENT ADJUSTED NET UTILITY PLMT $1,264,792 $0 $1,264,792 $0 $1,264,792 NINE MILE 2 TAI BENEFITS 0 $0 $0 ACCUMULATED DEFERRED FIT (18,875) (19) (17,324) (116,199) (116,199) 0 0 0 NEGA7IVE AFUDC UNAMORTIZED BALMCE NON-INTEREST BEARING CVIP NON-880RENAM 50,700 (11) (188) 50,512 50,512 SHOREHAM 355,000 355,000 355,000 VORKING CAPITAL ALLOVANCE 72,303 (12) (111) 72,192 0 72,192 MATERIALS & SUPPLIES FOSSIL FUEL INVENTORT 26,422 26,422 26,422 OTHER 29,490 29,490 29,490 PREPAYMBTS PROPERTY TAI 27,792 (13) 225 28,017 28,017 MTA 5,072 5,072 5,072 OTHER 3,099 (14) (85) 3,014 3,014 UNAMORTIZED DEFERRED COSTS 0 0 0 HURRICANE GLORIA DEFERRED FUEL (16,351) (16,351) (16,351)
HIECA 1,875 (15) (130) 1,745 1,745 DEBT IIPDSE 57,222 57,222 57,222 CONSERVATION (650) (16) 293 (357) (357)
R&D OVERRICOVERY (412) (17) (322) (734) (734)
MANAGEMENT A POWER PLANT AUDIT COSTS 1,652 1,652 1,652 l JAMESPORT 12,768 (18) (72,768) 0 0 POR7 JEFFERSON COAL CONVERSION 1,896 1,896 1,896 ACE INVEST./ UTILITIES MUTUAL DEPOSIT 1,120 1,120 1,120 AMORTIZATION OF AFC ADJUSTMENT 1,171 1,171 1,171 TOTAL RATE BASE $1,856,086 ($90,410) 81,765,676 $0 $1,765,676 83333553538 33333333333 33333333333 33333333338 33333333333
C.29484 LONU ISLAND LIGHTING COMPMI Appendix A WORKING CAPITAL- ELECTRIC- PER COMMISSION Schedule 4 FOR THE TWELTE MONTHS INDING SEPT. 30,1988 Page 2 of 2
$(000)
AI AS COMMISSION AS ADJD5TED AdJ. COMMISSION ADJUSTED REVENUE FINALL'l BT ALJ No. ADJUSTMENTS BY COMM REQUIREMUT ADJUSTED OPERATION & MAINT. EIP. $639404 ($1,038) $638,270 $0 638,270 0 0 0 0 0 ADD: CHARITABLE CONTRIBUTIONS LESS: 3/4 PURCHASED POWER (ED,640) (60,640) (60,640)
GAS BURNED UNDER BOILERS (52,999) (52,909) (52,909) 0 0 0 NUCLEAR FUEL INJURIES & DAMAGES (2,363) '
9 (2,354) 0 (2,354)
UNCOLLECTIBLES O,103) 0 (7,103) 0 (7,103)
DEPRECIATION FROM CLEARING ACCOUNTS (2,516) 0 (2,516) 0 (2,516)
AMORT. OF STORM COSTS (2,500) 0 (2,500) 0 (2,500)
AMORT. OF HIECA COSTS (1,802) 252 (1,550) (1,550)
AMORT. OF CONSERVATION COSTS (4,045) (4,045) (4,045)
AMORT. OF MANAGEM D T & POWER PLANT AUDIT COSTS 067) (367) (367)
ELECT. PROD.-STANDARD YEAR VS. ACTUAL, NET 1,060 1,060 1,060 NET EIPENSES $5DS,123 ($777) $505,346 $0 $505,346 WORKING CAPITAL $1/7 $72,303 (12) ($111) $72,192 $0 $72,192
C. 29484 Appendix A Schedule 5 Page 1 0F 3 LONG ISLAND LIGHTING COMPANY Summary of Commission Adjustments Twelve Months Ending September 30,' 1988
$(000)
Adj. Description Amount
- 1. Other Revenues Decrease to reflect latest known Conservation balances. $( 573)
=
- 2. Labor To reflect latest known inflation rates. $( 81)
=
3 Insurance To reflect revised inflation and latest known premiums. $( 56)
==
4 PSC Assessment To reflect latest known assessment rates. $ 316
==
- 5. Amortization a) Revise HIECA to reflect latest known balance. ( 252) b) Revised R&D to reflect latest known balance. ( 632)
$( 884)
==
- 6. Inflation To reflect decrease in inflation rate from 7.6% to 7.2%. $( 333)
==
- 7. Taxes Other Than Income Taxes a) To eliminate dividend taxes. $( 3,224). .
b) Update property taxes to reflect revised inflation and latest known assessments. 1,372
$( 1,852)
=
- 8. Amortization of Property Losses To remove Jamesport amortization. $(29,107)
=
C. 29484 Appendix A Schedule 5 Page 2 0F 3 LONG ISLAND LIGHTING COMPANY Summary of Commission Adjustments Twelve Months Ending September 30, 1988
$(000)
Adj. Description Amount 9 Federal Income Taxes To adjust FIT provision per Sch. 3 $ 5,023
=
- 10. Nine Mile 2 Related Revenue Adjustment To reflect the Commission's allowance for Nine Mile 2 costs and expenses consistent with the ALJ's methodology. $ 5,278
=
Rate Base
- 11. Non-Interest Bearning CWIP To reflect decrease in inflation rate from 7.6% to 7.2%. $( 188)
=
- 12. Cash Working Capital Adjust Cash Working Capital per Sch. 4 $( 111)
=
- 13. Prepaid Property Taxes Update property tax prepayments to reflect revised property taxes. $ 225
=
l l
i 14 Prepaid Insurance To reflect updates of the Commission's expense allowance and latest known balances. $( 85)
=
Rate Base Deferred Costs ,
- 15. Revise HIECA to reflect latest known balance. $( 130)
=
- 16. Revise Conservation to reflect latest known balance. $ 293
=
- 17. Revise R&D to reflect latest known balance. $( 322)
=
- 18. To remove Jamesport unamortized balance. $(72,768)
=
C. 29484 Appendix A Schedule 5 Page 3 OF 3 LONG ISLAND LIGHTING COMPANY Summary of Commission Adjustments Twelve Months Ending September 30, 1988 (
(
$(000)
Description Amount Adi.
- 19. Accumulated Deferred FIT .
a) To remove Jamesport ADFIT Balance. $ 7.889 b) To reflect 1987 TRA-86 benefits as a rate base offset. $(25.213)
$(17,324)
======= _ ([
0 l
l l
l
C. 29484 APPENDIX B LONG ISLAND L'IGHTING COMPANY {
Amendments to Schedule P.S.C. No. 7 - Electricity Seventh Revised Leaves Nos. 2BE and 30B Nineteenth Revised Leaf No. 47 Twenty-fourth Revised Leaves Nos. 26A and 28C Twenty-sixth Revised Leaf No. 33I [
Thirty-third Revised Leaf No. 3 8 (
Thirty-eighth Revised Leaves Nos. 31A, 42 and 43 Forty-first Revised Leaf Ro. 45 Forth-eighth Revised Leaf No. 33F Fif ty-fif th Revised Leaves Nos. 30 and 34 Fifty-sixth Revised Leaf No. 28 Supplement Nos. 115, 129 and 125 to Schedule P.S.C. No. 7 -
Electricity t
e 4
e
STATE OF NEW YORK PUBLIC SERVICE COMMISSION CASE 29484 - Proceeding on Motion of the Commission as to the rates, charges, rules and regulations of Long Island Lighting Company for electric se rvice.
James T. McFarland, Commissioner, concurring:
I want to underscore the clear signal the Commission is sending to the parties in the dispute over the licensing of Shoreham that Long Island consumers will face drastic energy shortages in the near future because of a lack of LILCO generaring capbcity, a lack of transmission facilities to import sufficient energy to Long Island, and daily increases in demand by new consumers to the system.
The parties to the deadlock as well as all consumers on Long Island should consider the fact that the energy needs of Long Island would be satisfied for scme time to come if the 820 MW of capacity from Shoreham came on line.
Indeed, it is conceivable that if the license were granted now, Shoreham would be in full production to meet the peak energy demands of the summer of 1988. (I am fully aware that any licensing decision rests not with this agency but with the Nuclear Regulatory Commission.) Shoreham would join the five other nuclear plants in this state that nave been generating safe, reliable, and economic energy for many l
1 years.
STATE OF NEW YORK PUBLIC SERVICE COMMISSION CASE 29484 - Proceeding on Motion of the Commission as to the rates, charges, rules and regulations of Long Island Lighting Company for electric serv ic e.
Harold A. Jerry, Jr., Commissioner, concurring:
I join in Cm.missioner McFarland's concurrence.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
AFFIDAVIT OF CHARLES A. DAVERIO Charles A. Daverio, being duly sworn, deposes and says:
- 1. My name is Charles A. Daverlo. My business address is Shoreham Nuclear Power Station, P. O. Box 628, North Country Road, Wading River, New York 11792. My current assignment is Manager, Nuclear Operations Support Department.
- 2. I have been employed by LILCO since February 1976. During that entire period I have been involved in work associated with LILCO's nuclear power program.
Since 1981 I have been actively and continuously involved with issues involving emer-gency planning and preparedness for the station. Among my tasks, in various positions, have been (1) responsibility for supervision of the organization which developed the Local Offsite Emergency Response Plan for the Shoreham Nuclear Power Station; (2) participation in the development and execution of the February 1986 Exercise; (3) responsibility for development of procedures, training and drills for the Local Emer-gency Response Organization (LERO), which executes the Shoreham offsite emergency plan; and (4) testimony as an expert witness on emergency planning matters in both the planning ("OL-3") and exercise ("OL-5") litigation dockets in this case.
- 3. The exercise conducted on February 13,1986 (if found to be satisf actory on the merits) is effective for licensing purposes for 24 months, or until February 13, 1988. 10 CFR Part 50 App. E,1 IV.F.1, 52 Fed. Reg.16,823 (May 6,1987). Thereaf ter, an extension of the effectiveness of the February 1986 Exercise would have to be ob-tained for the exercise to be usable in any direct fashion to support issuance of a 11-cense to operate in excess of 5% of rated power.
- 4. It takes approximately four months under standard FEMA procedures to plan for a full participation exercise. Af ter the exercise, FEMA typically requires 30 to 60 days to issue a Post-Exercise Assessment. Litigation of exercise results, if per-mitted, can be lengthy. Initial pleadings concerning what has become the "OL-5" dock-et were filed in March 1986; the Commission ordered on June 6,1986 that any litigation be expedited, CLI-86-11,23 NRC 577; the Licensing Board decision now being appealed from, LBP-87-32, was issued December 7,1987. Thus if the Shoreham case is any guide, the entire exercise cycle (apart from litigation) takes about 6 months, and post-exercise litigation can consume upwards of 18 additional months.
- 5. Remedial exercises, depending on their nature and scope, can of ten be planned, executed and reviewed (indapandent of any litigation) in as little as a matter of several weeks.
- 6. If the ultimate result of the Commission's deliberations on the 1986 Shoreham Exercise is that no remedial exercise, or a relatively small remedial exercise, is needed, then any extension of the effectiveness of the February 1986 Exercise could be relatively brief. The exact length would depend on the timing of the Licensing Board's decisions, the nature of any remediation required, the availability of FEMA
resources to plan, observe and review the exercise, and the nature of post-exercise liti-gation,if any. The duration needed would also depend on the duration of remaining liti-gation in the related OL-3 (" Plan") docket.
7, It cannot be told definitively whether the result of the Licensing Board decision here under review will be that LILCO will be required to plan to conduct a complete " full participation" exercise as a predicate to obtaining a license. If that turns out to be the result, the Company's planning would have to be consistent with the timing considerations in 14 above. Apart from post-exercise litigation, at least six months would be required. If further litigation is required and it follows the course of the current litigation, it could potentially take another two years. The effects of this prospect include:
- a. There might be little or no use in seeking an extension of the valid-ity of the February 1986 Exercise, and its value for the licensing process could be sub-stantially reduced or even destroyed.
- b. The Company would have to continue to carry the costs, averaging about $30 million per month, on its nearly $5 billion investment at Shoreham.
- c. The Company will have to contend with the December 3,1987 de-cision of the New York Public Service Commission. That decision states that unless LILCO can provide it by about April 1988 with "a clear basis for high confidence that Shoreham will operate to meet the 1989 peak season and beyond"(Order at[he Com-mission may begin to alter adversely its previous rate treatment for LILCO. New York Public Service Commission Case 29484, Opinion 87-26, at 8.
.g.
- 8. For the reasons stated above, the licensing path for Shoreham looks con-siderably different if a second full participation pre-licensing exercise is required to be held than if one is not. For the same reasons, it is imperative to determine whether another full participation exercise will be necessary far enough before February 13, 1988 to permit the Company to make a timely request for an extension, if one is needed and justified.
Charles A. Daverio Subscribed and sworn to before me this day of December,1987.
Notary Public My commission expires:
LILCO, December 19,1987 DOCKETED USNRC CERTIFICATE OF SERVICE OFFICE w n w w ,
DOCKElon; r $gyj In the Matter of LONG ISLAND LIGHTIV' COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-5 I hereby certify that copies of LILCO'S MOTION FOR IMMEDIATE CERTIFICA-TION TO THE COMMISSION OF ISSUES PRESENTED BY LBP-87-32 OR FOR EXPEDITED BRIEFING, ARGUMENT AND DECISION BY THE APPEAL BOARD, and NOTICE OF APPEAL BY LONG ISLAND LIGHTING COMPANY FROM LBP-87-32, ini-tially served on December 17,1987, were served this date upon the following by Federal Express, as indicated by an asterisk, or by first-class mail, postage prepaid.
Alan S. Rosenthal, Chairman
- Mr. Frederick J. Shon
- Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Fif th Floor (North Tower) U.S. Nuclear Regulatory Commission East-West Towers East-West Towers, Rm. 430 4350 East-West Highway 4350 East-West Hwy.
Bethesda, MD 20814 Bethesda, MD 20814 Howard A. Wilber
- Lando W. Zech, Jr., Chairman
- Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board 1717 H Street, N.W.
Fif th Floor (North Tower) Washington, DC 20555 East-West Towers 4350 East-West Highway Commissioner Thomas M. Roberts
- Bethesda, MD 20814 U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
John H. Frye, III, Chairman
- Washington, DC 20555 Atomic Safety and Licensing Board Commissioner Frederick M. Bernthal U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission l East-West Towers 1717 H Street, N.W.
4350 East-West Hwy. Washington, DC 20555 Bethesda, MD 20814 -
Commissioner Kenneth M. Carr
- l Dr. Oscar H. Paris
- U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 1717 H Street, N.W.
Board Washington, DC 20555 U.S. Nuclear Regulatory Commission East-West Towers Commissioner Kenneth C. Rogers
- 4350 East-West Hwy. U.S. Nuclear Regulatory Commission Bethesda, MD 20814 1717 H Street, N.W.
Washington, DC 20555
James P. Gleason, Chairman
- Mary Gundrum, Esq.
Atomic Safety and Licensing Board Assistant Attorney General 513 G11moure Drive 120 Broadway Silver Spring, Maryland 20901 Third Floor, Room 3-116 New York, New York 10271 Dr. Jerry R. Kline
- Atomic Safety and Licensing Spence W. Perry, Esq.
- Board William R. Cumming, Esq.
U.S. Nuclear Regulatory Commission Federal Emergency Management j East-West Towers, Rm. 427 Agency !
4350 East-West Hwy. 500 C Street, S.W., Room 840 Bethesda, MD 20814 Washington, D.C. 20472 Secretary of the Commission Mr. Jay Dunkleberger Attention Docketing and Service New York State Energy Office Section Agency Building 2 U.S. Nuclear Regulatory Commission Empire State Plaza 1717 H Street, N.W. Albany, New York 12223 Washington, D.C. 20555 Stephen B. Latham, Esq.
- Atomic Safety and Licensing Twomey, Latham & Shea Appeal Board Panel 33 West Second Street U.S. Nuclear Regulatory Commission P.O. Box 298 Washington, D.C. 20555 Riverhead, New York 11901 Atomle Safety and Licensing Mr. Philip McIntire Board Panel Federal Emergency Management U.S. Nuclear Regulatory Commission Agency Washington, D.C. 20555 26 Federal Plaza New York, New York 10278 Edwin J. Reis, Esq.
- U.S. Nuclear Regulatory Commission Jonathan D. Feinberg, Esq.
7735 Old Georgetown Road New York State Department of (to mallroom) Public Service, Staff Counsel Bethesda, MD 20814 Three Rockefeller Plaza i Albany, New York 12223 Herbert H. Brown, Esq.
- Lawrence Coe Lanpher, Esq. Ms. Nora Bredes Karla J. Letsche, Esq. Executive Coordinator Kirkpatrick & Lockhart Shoreham Opponents' Coalition South Lobby - 9th Floor 195 East Main Street 1800 M Street, N.W. Smithtown, New York 11787 Washington, D.C. 20036-5891 .
Gerald C. Crotty, Esq.
Fabian G. Palomino, Esq.
- Counsel to the Governor Richard J. Zahnleuter, Esq. Executive Chamber Special Counsel to the Governor State Capitol Executive Chamber Albany, New York 12224 Room 229 State Capitol Albany, New York 12224
7 -- -
Martin Bradley Ashare, Esq. Dr. Monroe Schneider i Eugene R. Kelly, Esq. North Shore Committee l Suffolk County Attorney P.O. Box 231
.H. Lee Dennison Building Wading River, NY 11792 Veterans Memorial Highway Hauppauge, New York 11787 8
Dolald P. Irwin Hunion & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: December 19,1987 l
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'87 DEC -8L560-32 ;
UNITED STTES OF AMERICA JLW . w-NUCLEAR REGULATORY COMMIS$i6f g [1,;',,, ' ' ' ,
ATOMIC SAFETY AND LICENSING BOARD SEp.yD DEC - 81937 Before Administrative Judges:
John H Frye, III, Chairman Dr. Oscar H. Paris Frederick J. Shon
)
In the Matter of ) Docket No. 50-322-OL-5
) (Emergency Planning)
LONG ISLAND LIGHTING COMPANY )
) ASLBP No. 86-534--1 OL (Shoreham Nuclear Power )
Station, Unit 1) )
)
December 7, 1987 PARTIAL INITIAL DECISION Appearances Donald P. Irwin, Lee B. Zeugin, Kathy E. B. McCleskey, and Jessine A. Monaghan, Hunton & Williams, Richmond, Virginia, for the Long Island Lighting Company.
Lawrence Coe Lanpher, Karla J. Letsche, and Michael S.
Miller, Kirkpatrick & Lockhart, Washington, D. C. for Suffolk County, New York.
Richard J. Zahnleuter, Albany, New York, for Mario M. Cuomo, Governor of the State of New York.
Oreste R. Pirfo, Charles A. Barth, and George E. Johnson,
,Bethesda, Maryland, for the Nuclear Regulatory Commission Staff.
William R. Cumming, Washington, D. C., for the Federal Emergency Management Agency.
-fil3i906% 0fl -- - _ - - - - - - - ._-
CE N INTRODUCTION In this Partial Initial Decision, we address the question whether the February 13, 1986 Exercise cf the offsite emergency plan for the Shoreham Nuclear Power Station satisfied the terms of 10 CFR Part 50, Appendix E, paragraph IV.F.1. That provision states the requirements for initial exercises of offsite emergency plans for power reactors which must occur prior to commercial operation.
This question was presented by Contentions EX-15 and EX-16, which assert that the exercise was too limited in ccope, and by Contention EX-21, which asserts that the sample sizes used by FEMA were too small to support its conclusions. We have concluded that, because of the failure to test certain functions, the exercise did not meet the requirements of paragraph IV.F.1.
The issues raised by these contentions present ques-tions not previously resolved in an adjudication. Our conclusions on those questions may have a substantial impact on the posture of this proceeding. Thus, Ohile we are still considering the parties' positions with respect to LERO's performance during the exercise, we have decided to issue this Partial Initial Decision detailing the reasons for our O
conclusion in advance of our decision on the remainder of the contentions. We believe this to be consistent with the
. Commission's direction to expedite this proceeding to the maximum extent consistent with fundamental fairness.
This case represents the first time that, because of State and local government opposition to its application, a power reactor operating license applicant has taken on the entire responsibility for offsite emergency preparedness.
Long Island Lighting Company ("LILCO") has done this by preparing an offsite emergency response pl:n, known as the "SNPS Local Offsite Radiological Emergency Response Plan"
("LILCO Plan"), and by settin,g up an organization that would implement the Plan in an emergency, known a.s "LERO" (Local Emergency Response Organization). LERO is composed primar-ily of LILCO employees and contractors, working with support 1
organizations such as the American Red Cross, the U. S.
Coast Guard, the U. S. Department of Energy, and various bus, ambulance, and service companies. See LILCO Plan, Chap. 2. ,
The adequacy of offsite preparedness was extensively considered by the Licensing Board in prececdings spanning 1983 through 1985. Interveners Suffolk County, the Shoreham j i
Opponents Coalition, the Town of Southampton, the North '
1
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Shore Coalition, and New York State raised issues regarding the planning aspects of'the LILCO Plan. After hea*ing, the Licensing Board issued a Partial Initial Decision ("PID") on offsite emergency planning. See Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC
- 644 (1985). The PID included findings of fact and conclu-sions of law on issues of human behavior, credibility, conflict of interest, EPZ boundary, LERO workers, training, notification, information to the public, sheltering, protec-tive action recommendations, evacuation, special facilities, schools,' ingestion pathway, loss of offsite power, strike by LILCO employees, and legal authority issues.
After further hearings on the issue of relocation centers, the Licensing Board issued a concluding Partial Initial Decision on emergency planning, ruling on the relocation center issues and on whether the LILCO Plan ,
provides reasonable assurance that adequate protective measures can and will be taken in the event of a radio-logical emergency at Shoreham, Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-85-31, 22 NRC 410 (1985). The Board found that it did not. The Board found that there is not "anything unique about the demog-raphy, topography, access routes or jurisdictional bound-aries in the area in which Shoreham is located. To the 1
1
/~ r contrary, the record fails to reveal any basis to conclude
.that it would be impossible to fashion and implement an effective offsite emergency plan for the Shoreham Plant."
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However, the Board noted that its inability to find reason-able assurance stemmed in large part from Suffolk County's 4
and New York State's opposition to the plant. Id. at 427.
Portions of these-decisions on offsite emergency planning were appealed; certain aspects were remanded for further consideration before another Licensing Board, and some are still pending appeal.1 I
LILCO took appeals on three issues from the PID (legal authority, conflict of interest, and lack of state plan) and one issue from the concluding PID persons who might seek monitoring) .(concerning the,Appealed Intervanors number ofa host of issues from both PIDs. The Appeal Board severed LILCO's legal authority appeals from the factual appeals, and affirmed the Licensing Board's findings on LILCO's preemption, realism, and immateriality arguments. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-818 22 NRC 651 (1985). On review the Commission reverse,d, deferring consideration of-the preemption question while remanding on the realism and immateriality arguments. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22 (1986).
The Licensing Board has not yet initiated proceedings on the realism remand.
The Appeal Bocrd initially took up only Interveners' factual appeals; it affirmed the Licensing Board on most findings but remanded four issues: (1) EPZ size; (2) role conflict / school bus drivers; 3) hospital evacuation plans; and (4) denial of discovery an(d evidentiary rulings relating to reception center issues. Long Island Llghting Co.
(Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135 (1986). On petitions for review the Commission accepted (Footnote Continued) I I
l 4
1 On June 20, 1985, the NRC, at LILCO's request, asked FEMA to conduct an Exercise to test offsite emergency preparedness at Shoreham based upon the LILCO Plan. In a one day Exercise held between 05:30 and 16:00 on February 13, 1986, a team of 38 Federal evaluators observed and graded LERO's performance pursuant to that Plan. The results of the Exercise are set forth in a Post Exercise Assessment issued by the Federal Emergency Management Agency on April 17, 1986 (" FEMA Report"), which was admitted into evidence as FEMA Exhibit 1.
In a motion dated March 7, 1986, Suffolk County, New York State, and the Town of Southampton (" Interveners")
requested that the Commission advise the parties to this proceeding of their procedural responsibilities concerning (Footnote Continued) review of just three issues, two concerning EPZ size and the -
third concerning hospital evacuation plans. Order of September 19, 1986. In CLI-87-12, 26 NRC , (1987). the Commission affirmed the remand of the hospital evacuation l issue and reversed the remand of the two EPZ size issues.
I Upon the Commission's suggestion in CLI-86-13, the Appeal l
l Board c'onsidered LILCO's appeals, ruling in LILCO's favor on conflict of interest and remanding on the absence of a state -
plan. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-847, 24 NRC 42 (1986). The issue of the suitability of the reception centers was litigated recently before the OL-03 Board; that Board has recently I
resolved the state plan issue by summary disposition.
LBP-87-30, 26 NRC .
i 0
any hearings on the February 13, 1986 Exercise. LILCO and the NRC Staff responded later that month; LILCO requested the appointment of a Board to hear exercise-related matters and the conduct of expedited hearings. On June 6, 1986, the Commission ordered "immediate initiation of the exercise hearing to consider evidence which Interveners might wish to offer to show that there is a fundamental flaw in the LILCO Emergency Plan." It directed the Chairman of the Atomic Safety and Licensing Board Panel to appoint a Board consist-ing of the members of the Board which issued the PID, if they were available. It directed that Board "to expedite the hearing to the maximum extent consistent with fairness
, to the parties, and to issue its decision upon the comple-tion of the proceeding." Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), CLI-86-11, 23 NRC 577, 582 (1986).
The litigation of the Exercise issues proceeded: The Interveners in this phase of the emergency planning litiga-tion arc Suffolk County, New York State, and the Town of Southampton, although the Town of Southampton did not participate in the prehearing conferences or the hearing.
On August 1, 1986, Interveners submitted 162 pages of contentions which were ruled on by the Board in an unpub-lished Prehearing Conference Order of October 3, 1986. That 0
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I Order prompted a motion for reconsideration from FEMA and objections from Interveners. In an unpublished Memorandum and Order of December 11, 1986, we clarified and largely reaffirmed the o'ctober 3 Order. FEMA sought interlocutory review of that portion of the latter Order which reaffirmed the admission of Contentions EX-15 and EX-16 which are decided herein. Its petition was denied in ALAB-861, 25 NRC 129 (1987).
The hearings on Contentions EX-15 and EX-16 began on May 13, 1987 with LILCO's witnesses and continued through May 15.2 Tr. 5961-6247. LILCO's panel resumed the stand and completed their testimony on May 20. Tr. 6801-6978.
LILCO's witness on Contention EX-21 testified on May 26.3 Tr. 7255-7354. New York State and Suffolk County' presented testimony on Contentions EX-15 and EX-16 beginning on May 20 and concluding on May 21.4 Tr. 6918-7250. Suffolk's 2
LILCO's EX-15 and EX-16 testimony was presented by Charles A. Daverio and Dennis M. Behr. It was admitted as LILCO Exhibit 12. Tr. 5968.
3 LILCO's testimony on EX-21 was presented by Charles A.
Daverio. It was admitted as LILCO Exhibit 21. Tr. 7267, 7359.
4 This testimony was presented by James C. Baranski, William Lee Colwell, Lawrence B. Czech, Gregory C. Minor, (Footnote Continued) 0
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witness on Contention EX-21 testified on May 26 and June 18.5 Tr. 7354-7411, 8876-8915, respectively. FEMA pre-sented its entire testimony June 9 through 12, 16 and 17.6 Tr. 7446-9750. Staff presented testimony on June 18. Tr.
8764-8876.
- All or the proposed findings of fact and conclusions of law submitted by the parties on Contentions EX-15, EX-16, and EX-21 have been considered in formulating this Decision.
Those not incorporated directly or inferentially in this Decisien are rejected as unsupported in fact or law or as -
unnecessary to the rendering of this Decision.
4 (Footnote Continued)
James D. Papile, Charles B. Perrow, Frank R. Petrone, and Harold Richard Zook. It was admitted as New York State Exhibits 1, 2, and 3. Tr. 7080. Mr. Zook withdrew for personal reasons. Tr. 7054.
S Suffolk's prefiled testimony was sponsored by Gary A.
Simon and Stephen Cole. The latter was unavailable to testify and the testimony was corrected appropriately. It was admitted as Suffolk County Exhibit 99. Tr. 7354-59.
6 FEMA's testimony was presented by Roger B. Kowieski, Joseph H. Keller, and Thomas E. Baldwin.
FEMA Exhibit 5. Tr. 7453. In general, we It was admitted as found FEMA's testimony to be forthright, candid, and unbiased. It has been most valuable to us in the preparation of our decision on these and the remaining issues.
7 Staff's testimony was presented by'Sheldon Schwartz and Bernard H. Weiss. It was admitted as Staff Exhibit 1.
Tr. 8765.
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DISCUSSION I. CONTENTIONS EX-15 AND EX-16 A. The Allegations Contentions EX-15 and -16 allege that the February 13, 1986 Exercise of the LILCO Plan was not a " full partici-pation" exercise as defined in NRC regulations. Interveners allege that the Exercise did not yield meaningful results on implementation capability as required by 10 CFR 50.47 in that it did not include demonstrations or evaluations of (1) major portions of the LILCO Plan or (2) the emergency response capability of many persons and entities relied upon for Plan implementation. .
B. The Regulatory Scheme The Commission's regulations bearing on these conten-tions state: -
A full participation 4 exercise which tests as much of the licensee, State and local emergency plans as is reasonably achievable without mandatory public participation shall be conducted for each site at .hich a power reactor is located for which the first operating license for that site is issued after July 13, 1982. This exercise shall be conducted within two years before the issuance of the first operating license for full power (one authorizing operation above 5% of rated power) of the first reactor and shall include participation by each State and local government within the e
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plume exposure pathway _EPZ and each State within the ingestion exposure pathway EPZ. ***
4
" Full participation" when used in conjunction with emergency preparedness exercises for a particular site means appropriate offsite local and State authorities and licensee personnel physically and actively take part in testing their integrated capability to adequately assess and respond-to an accident at a commercial nuclear power plant. " Full participation" includes testing the major observable portions of the onsite and offsite emergency plans and mobilization of State, local and licensee personnel and other resources in sufficient numbers to verify the capabilit scenario.y to respond to the accident 10 CFR Part 50, Appendix. E IV.F.1.; 52 Fed. Reg. 16,823, 16,829 (May 6, 1987).
While the parties have focused. principally on the terms of the quoted paragraph of the regulation, it is necessary to understand how that paragraph fits into the scheme of the i provision dealing with exercises in order to understand the Commission's intent with regard to the scope of the exercise required prior to reactor operations in excess of 5% of rated power at a particular site (hereafter referred to as the " initial exercise"). The structure of paragraph IV.F, which contains the quoted paragraph as well as four others dealing with exercises, makes it clear that the initial i
exercise is to meet certain requirements that do not apply l l to subsequent exercises. After providing that exercises are
to be conducted, that provision lays down requirements applicable to initial exercises in paragraph 1, requires annual licensee exercises in paragraph 2, requires that State and local government plans for each operating reactor site be exercised biennially with either full or partial' participation (hereafter referred to as " biennial exer-cises") and sets standards governing the frequency of both full and partial State and local government participation in paragraph-3, provides for remedial exercises in paragraph 4,
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and requires critiques of exercises in paragraph 5.
The quoted paragraph is unique in this scheme in that it requires full participation in the initial exercise for a site by each State and local government within the plume exposure pathway EPZ and each State within the ingestion exposure pathway EPZ. In contrast, paragraph 3, while requiring full participation in at least one exercise at least' biennially by each State and local government, permits '
partial participation with re'spect to any given site if the State or local government has fully participated at another site. Further, paragraph 3 allows a State which is included I
in any ingestion exposure pathway EPZ to exercise its related emergency plans only every five years.
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Moreover, paragraph 1 states that the initial exercise is to "...(test] as much of the licensee, State and local emergency plans as is reasonably achievable without manda-tory public participation...." No similar requirement is placed on subsequent exercises. Clearly, paragraph 1 states requirements for State and local participation in initial exercises which are unique to those exercises.
Thus it appears that the definition of " full partici-pation" found in footnote 4 applies to both initial and biennial exercises, and that paragraph IV.F.1 places certain requirements on initial full participation exercises that do not apply to biennial full participation exercises.
C. LILCO's and Staff's Positions LILCO nonetheless takes the position that there are no additional requirements placed on initial full participation exercises. Staff agrees. LILCO notes that the Commission's regulations, as orig'inally adopted in 1980, contained a requirement that offsite exercises for all plants -- whether achieving their full power licenses for the first time or already licensed -- must test "as much of the licensee, State and local emergency plans as is reasonably achievable without mandatory public participation." This condition applied to all offsite exercises until the paragraph was
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amended in: July 1984. LILCO states that during this period, exercises deemed " full scale" omitted various-elements such as ingestion pathway and recovery / reentry, citing Tr. 7208-12 (Papile, Baranski).
LILCO notes that the July 1984 amendment relaxed the frequency of full participation exercises for sites with operating licenses.8 See 49 Fed. Reg. 27733-35 (July 6, 1984). In so doing the Commission revised the language of paragraph IV.F.1 to read essentially as it appears today, aside from a few unrelated differences. LILCO maintains that this amendment addressed only the frequency of exer-cises and was not intended by the Commission to make sub-stantive changes in the scope of initial and biennial full participation exercises. Tr. 6219-20 (Behr) ; Tr. 6191,. 6853 (Daverio).
8 It is interesting to note that the July 1984 amendment transformed a statement that the initial exercise for a site should permit each State and local government within the plume exposure pathway EpZ and each State within the ingestion exposure pathway to participate into a requirement that they participate, while dropping the requirement that biennial exercises test "...as much of the ... plans as is reasonably achievable...."
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LILCO correctly notes that the sentence structure:
A full participation exercise which tests as much of the licensee, State and local emergency plans as is reasonably achievable without mandatory public participation shall be conducted ...
is ambiguous because it confuses the grammatical rules concerning restrictive and nonrestrictive clauses. However, LILCO believes that the grammatical confusion is largely cleared up by the derivation of the sentence which shows that (1) the phrase " full participation" exercise (and its apparently synonymous predecessor " full scale" exercise) applied to both initial exercises and plants which already held full power licenses, (2) exercises run during that period omitted various plan elements, yet were still found
,to comply with the Commission's regulations, and (3) there was no intent on the part of the Commission, evident from the Statement of Consideration in the 1984 amendment to the rule, to alter the general applicability or meaning of the phrase.
LILCO finds support for its position in the preface to the Commission's latest revision to these rules. See 52 Fed. Reg. 16823-29 (May 6, 1987). It notes that when the Commission revised its rules in 1984, it did not make a similar change regarding the required frequency of initial full participation exercises. However, concerned about
scheduling burdens as a result of a judicially-imposed requirement to subject exercise results to the hearing process as well as the resource burden placed on State and local governments by the requirements for annual full participation exercises, on May 6, 1987, the Commission revised its rules to require a full participation exercise within two years prior to the full-power licensing of a power plant -- the same scheduling requirement mandated for full participation exercises after licensing. 52 Fed. Reg.
at 16824.
In response to comments filed by citi' zen groups that opposed this latest rule change on the basis, inter alia, that it ignored a previously drawn distinction between pre-and post-operational exercises, the Commission said there was no reason to treat NTOLs and operating plants differ-ently: .
The Commissi'on has...been left with a regulatory scheme for frequency of full participation emer-gency preparedness exercises that treats sites with an operating license differently than sites without an operating license. The Commission does not believe this disparity in treatment is warrantea....
52 Fed. Reg. at 16826.
As in the 1984 rulemaking, there is no discussion in the Statement of Consideration of imposing any special .
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additional substantive requirements regarding the scope of initial exercises. LILCO believes that such additional requirements are a concept the commission almost surely would have mentioned in the context of its remarks had it intended a substantive scope change for NTOLs, especially in light of the fact that in practice, no distinction had
. historically been made between operating sites and NTOLs.9 D. Interveners' Position Interveners do not share IILCO's view. They begin with the proposition that, in paragraph IV.F.1 of Appendix E, the Commission addresses the scope.of~the initial full partici-pation exercise prior to reactor operations in excess of 5%
of power. Their testimony, Interveners maintain, demon-strated that, prior to the initial full participation exercise, there is no " track record" regarding the capa-bilities or preparedness related to that particular site.
Accordingly, it makes sense that the initial full 9
Staff also makes this argument. Additionally, Staff states that the notion that the initial exercise may lead to major changes is probably an illusion, citing the fact that neither FEMA'nor Staff has found this to be the case. Staff urges us not to " read into" paragraph IV.F.1 any additional requirements for initial exercises. See Staff's proposed findings, at 30-31. However, those additional requirements are clearly stated in that paragraph.
ep 4
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participation exercise be comprehensive. NYS Ex. 1, at 25.
Interveners believe that this is an especially important consideration _for Shoreham because implementation of the Plan is largely dependent upon LILCO personnel whose every- ,
day work does not include emergency response.
Interveners find support for this interpretation in the regulatory history. They believe that the original require-ment of Appendix E that all sites, regardless of their previous operating history, "
... test [] as much of the licensee, State, and local emergency plans as is reasonably achievable without mandatory public participation..."
(45 Fed. Reg. 55413, col. 1 (1980); see Tr. 7102 [Petrone])
made. sense because, at that time, there was no track record j of performance at any site.
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. Interveners believe that, in dropping the requirement that operatin,g plants "... test [] as much of the ... plans as is reasonably achievable without mandatory public partici-pation..." in 1984, the Commission indicated its intent that initial full participation exercises should be more complete than full participation exercises at operating sites.
Indeed, in relaxing the exercise frequency requirement from one to two years, the Commission noted that by 1984, it had gained experience at about 150 exercises. See 49 Fed. Reg.
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l 27735, col. 1 (1984). While the Commission did not ex-pressly link this experience to its removal of the "as much as reasonably achievable" language, the rationale for the change in exercise frequency applies to that change as well.
E. Legal Conclusion Interveners read the regulation correctly. It is clear that the July 1984 amendment did make substantive changes in the required scope of initial and biennial exercises.10 Despite the ambiguity in footnote 4, LILCO's arguments simply do not overcome the clear language of paragraph I'/.F.1. Consequently, we do not find it necessary to address Interveners' arguments in support of their reading.
Suffice it to say that although the Commission has found it necessary to amend the regulation twice, it did not see fit to change these clear requirements or, for that matter, to specifically address them in a statement of consideration accompanying either a proposed or final rule.11 10 See footnote 8, supra.
11 The language' quoted by LILCO from the Statement of Consideration supporting the rule permitting initial exercises to be conducted within two years, rather than one year, of commercial operation does not dictate a contrary conclusion. That language, when placed in context, was directed to the problem posed by the necessity to complete (Footnote Continued)
)
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Our conclusion concerning paragraph IV.F.1 makes it unnecessary for us to consider the parties' positions regarding the interpretation of the definition of full (Footnote Continued) both an exercise and any related litigation within a one year time period, and simply points to the fact that there is no reason why the initial exercise should occur within a shorter time period than subsequent exercises. It does not contradict the clear language of paragraph IV.F.1. Indeed, logic would suggest that, having mandated the more complete initial exercise prior to licensing, the Commission could well rely on its results for at least as long a period as that which would apply to the less complete biennial exercises.
LILCO also relies on Planning Standard N of NUREG-0654/ FEMA-REP-1 '(LILCO Ex. 12, Att. C), FEMA Guidance Memorandum (GM) PR-1 (Id., Att. E), and draft GM EX-3 (Id. ,
Att. G). LILCO's witnesses argued that this guidance 15 directly applicable. They attempted to point (1) to explicit references in FEMA Guidance Memoranda to the NRC's Appendix E regulations (Tr. 6199-200, 6222 6235-38 6242, 6804-05 (Daverio, Behr) ) ; (2) to language a,ppearing,in Appendix E that i,s echoed by language in FEMA Guidance Memoranda (Tr. 6822-23 (Behr) ) , and in NUREG-0654 Planning Standard N Tr. 6184-85 (Daverio) ) ; and (3) to their understanding (g of the real world interrelationship between FEMA and NRC as a result of their practical experience in the emergency planning area (Tr. 6184-85, 6190-92, 6231-33, 6242-44, 6815-23 (Daveri.o, Behr) ) . LILCO believes that FEMA and NRC Staff witnesses agreed that the FEMA guidance documents and NUREG-0654 are applic.able. See FEMA Ex. 5, at 89-90; NRC Ex. 1, at 5; Tr. 7492 (Keller), 7620-21 (Keller, Kowieski).
While this guidance may accurately reflect the practice which Staff and FEMA have followed in conducting exercises, a cursory perusal of it reveals that it either ignores the distinction between initial and biennial exercises, or was intended to be limited to biennial exercises. Thus, it is of no value in understanding the additional requirements for l initial full participation exercises. Moreover, because it i
is guidance only and does not rise to the status of a regulation, paragraph IV.F.1.
it does not override the clear language of 0
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i participation found in footnote 4 of that paragraph.
Because the initial exercise must be more comprehensive than the biennial exercises, a fortiori an exercise which meets that requirement will qualify as a full participation exercise.
F. The Alleged Omissions From The Exercise We now consider whether the facts alleged in these contentions demonstrate a fundamental flaw. Interveners point to certain specific omissions and inadequacies in the exercise in support'of their views. For purposes of this discussion, these have been grouped under the standard .
exercise objective to which they relate.
- 1. Alert and Notification l
Standard exercise objective 13 governs this topic. It provides: Demonstrate the ability to alert the public within the 10-mile EPZ, and disseminate an initial instruc-tional message, within 15 minutes. This objective was evaluated under the following Emergency Operations Center (EOC) objectives:
- 13. Demonstrate the ability to provide advance coordination of public alerting and instructional
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messages with the State and county (State and county participation simulated) ;
- 14. Demonstrate the ability to activate the prompt notification siren system in coordination with the State and county (State and county participation simulated); -
- 15. Demonstrate the capability for providing both an alert signal and an informational or instructional message to the population on an area-wide basis throughout the 10-mile EPZ within 15 minutes (to be simulated); and
- 21. Demonstrate the ability to prepare and implement EBS in a timely manner (to be simulated .
within 15 minutes after command and control decision for implementation of protective action recommendations).
FEMA Ex. 5, at 97; FEMA Ex. 1, at 10.
FEMA concluded that objectives EOC 13, 15, and 21 were met, while EOC 14 was partly met. See FEMA Ex. 1, at 33-34,
- 38. Interveners assert that the scope of the exercise and the participation of response organizations was too limited with respect to these objectives. Specifically, Interveners assert that "[p]rocedures for the actual notification of the public and actual issuance of emergency information and
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protective action' recommendations to the public ... were excluded _from the exercise, in that sirens, the LILCO EBS system, and WALK Radio were not tested, used, demonstrated, or involved in the exercise.12 Thus neither the notifi-cation capabilities of LILCO or WALK Radio personnel, nor the notification capabilities of LILCO's EBS system, were evaluated during the exercise." Contention EX-15A. deu also Contentions EX-16C, -16D, and -24.
Additionally, although Interveners asserted in conten-tions EX-15B and EX-18C(iv) that procedures for notifying and issuing protective action recommendations to the public in the water portion of the EPZ were excluded in that the U.
S. Coast Guard did not participate, in their prefiled testimony (NYS Ex. 1, at 119), they state that they have no .
basis on which to dispute LILCO's and FEMA's accounts of the Coast Guard's participation. See LILCO Ex. 12, at 33-34; FEMA Ex. 5, at 108-09. Consequently, we have not furthar considered these contentions. However, in our discussion of
, 12 Contention EX-16E asserts that Marketing Evaluations, Inc., which has responsibility to verify siren operation and to assess the progress of any evacuation, did not participate in the exercise. Because the sirens were not sounded and no actual evacuation demonstrated, we find that there was no need for Marketing Evaluations to participate.
See Interveners proposed findings, at 43 n.51.
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EOC 16, we address Interveners' position stated in Conten-tion EX-16B that the testing of the implementation of protective action recommendations in the water portion of the EPZ was inadequate.
There is no dispute concerning the sirens, EBS system, and WALK Radio. All parties acknowledge that the sirens were not sounded, no EBS messages were broadcast, and WALK Radio did not participate. FEMA concluded that the sirens should be scunded in the future (FEMA Ex. 1, at 34; FEMA Ex. 5, at 106, 123), and the FEMA witnesses voiced their opinion that this test should occur prior to operation at more than 5% of power, although they were uncertain whether such a regulatory requirement exists. Tr. 8383-87. Such a test would necessarily involve the broadcast of a test EBS message to inform the public of the reason the sirens were sounded. Tr. 7553-54. More importantly, FEMA agreed with Interveners that the test of the alert and notification system was not as complete as FEMA normally expects (Tr. 7563-65), and that there was no evaluation of WALK Radio's capability to carry out its responsibilities under the plan (Tr. 7579).
LILCO notes that certain legal developments prevented the testing of the alert and notification system.
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t, , e Specifically, a February 1985 decision of'the'New York Supreme Court in Cuomo v. LILCO (Consol. Index'84-4615)
O raised the. possibility that-any sounding of sirens or broadcast'of EBS messages.might.be deemed to be an unlawful exercise of police power. In January 1986, the Suffolk
. County legislature adopted Local Law 2-86 which imposed c
civil.and criminal sanctions on anyone participating in an exercise activity which could affect.the general public.
Althou. ': hat' law was enjoined as unconstitutional in LILCO
- v. County of Suffolk, 628'F.:Supp. 654, 666 (E.D.N.Y. 1986),
that decision, coming only three days prior to the exercice, t was too late to permit a test of the alert and notification system to be inserted into the exercise. LILCO maintainc that the system was tested to the fullest extent possih)a.
See LILCO Ex. J2, at 16-17. -
Interveners do not agree. They believe,that the failure to activate the sirens and EBS system and.to inter-act with WALK Radio is significant in determining whether the exercise met the standards for full participation exercises. They testified that it was standard practice in FEMA Region 2 to sound the sirens and air a test EBS mes-sage.
Tr. 7149. They believe that the sounding of the i sirens and accompanying-radio broadcasts are a " major observable portion" of the plan as that term is used in
-A
. l 10'CFR Part 50, Appendix. E, paragraph IV.F. They also believe that the failure to activate also necessarily precluded observation and evaluation of critical mechanical andehuman interactions. Tr. 7183. Specifically, they believe that the following elements were omitted:
- 1. sounding of the sirens;
- 2. broadcast of an EBS message;
- 3. activation of tone alert radios;
- 4. contact with WALK Radio; and
- 5. authentication of the EBS message by WALK.
Tr. 7182-84. ,
s LILCO maintains that-what was done at the exercise was sufficient to constitute full participation and that the untested mechanical aspects of the system will be demon-strated during a so-called FEMA-REP-10 test (LILCO Ex. 12, at 32). Given the County's efforts to preclude any testing of the alert and notification system at the exercise, it ill behooves the Interveners to complain that steps one through three above were not carried out at the exercise. Moreover, those efforts clearly dictate the conclusion that testing of l
these portions of the plan was not reasonably achievable.
Consequently, we do not consider their omission in j
.m.____.__--
determining whether the requirements of paragraph IV.F.1 were met.13 The last two items, which concern the lack of communi-cation with WALK Radio, present a different question. The record does not reflect whether the County prevented their inclusion in the exercise, and LILCO concedes that their inclusion would not have involved mandatory public partici-pation. See Tr. 6828-33 (Daverio). However, LILCO main-tains that the interaction with the EBS station is much more mechanical than Interveners portray,and that FEMA was satisfied with LERO's performance in this regard. See LILCO's reply findings, vol. II, at 3 (comment on Inter-venor's proposed finding 59). This may well be so. None-theless, FEMA found that LERO exhibited weaknesses in communications skills.14 Clearly, accurate communication of 13 This conclusion also applies to Interveners' Contention EX-15C, which asserts that there was no evaluation of the adequacy of LERO's public information materials. The local law enacted by the Suffolk County legislature similar1.y prevented any distribution of those materials and thus prevented any evaluation of their adequacy as a part of the exercise. We also note that there.
is no standard objective which covers the public information materials. Tr. 8424-25.
14 FEMA assigned a deficiency to the communications within the EOC and an ARCA because of the confusing state of (Footnote Continued) l
j I
the text of lBS messages to the radio station which is to broadcast them is of paramount importance. It is not a mechanical activity which appropriately can be covered in a FEMA-REP-10 test. Consequently, we conclude that the testing of communications with WALK Radio was reasonably achievable and should have been included in the exercise.
We conclude that the alert and notification system was partially tested at the exercise.
- 2. Evacuation of the EPZ Interveners assert that the exercise failed to test
. various functions related to this topic, which is governed by standard objective 15: Demonstrate the organizational ability and resources necessary to manage an orderly evacua-tion of all or part of the plume EPZ. This. objective was evaluated under the specific objectives EOC 16 and Field 9.
Interveners assert in Contentions EX-15H and -16B that implementation of protective action recommendations in the water portion of the EPZ and by transients on beaches and in parks was not adequately tested. In Contentions EX-16K and (Footnote Continued)
EBS messages furnished the press at the ENC. In our forthcoming decision on the contentions related to LERO's performance, we will address these matters in detail.
4 i
f
-18C(i), Interveners assert that the participation of certain commercial bus companies, which are relied upon to furnish buses in the event of an evacuation, was too limited. In Contentions EX-18C(iii) and EX-18C(vi), Inter-venors also assert that the participation of the Nassau
~
County Red Cross, which is relied upon in connection with congregate care centers, and Nassau County itself, which is relied upon to perform police functions in connection with the coliseum, were both too limited. Finally, in Conten-tions EX-15D and EX-16H, Interveners note that procedures related to evacuation of EPZ hospitals were not demonstrated and hospital. officials did not participate in the exercise.
Under EOC 16, FEMA evaluated LERO's organizational ability to manage an orderly evacuation. FEMA observed LERO's ability to coordinate notification of the public and access control on the waters of the EPZ with the Coast .
J FEMA Ex.
Guard. 5, at 110; FEMA Ex. 1, at 34. FEMA also verified that the Coast Guard simulated establishing a Maritime Safety Zone and simulated emergency radio broad- l I
casts to all shipping on the distress frequencies, as well '
as actually dispatching a boat for access control, although there was no objective to evaluate Coast Guard performance.
See FEMA Ex. 5, at 109; Tr. 7661. FEMA did not observe any l other elements relevant to Contentions EX-15H and EX-16B l
l t - _ _ _ - _ - _____________--_a
s .. . .,
-under either this objective or Field 9. FEMA believes'that, in light of the fact that the exercise occurred in February, further evaluation of the challenged portions of these objectives should await a summer exercise. See FEMA Ex. 5, at 111.
LILCO believes that there was an adequate demonstration of the implementation of protective action recommendations.
See LILCO Ex. 12, at 34. ' Interveners take the position that FEMA should have evaluated the Coast Guard's ability to formulate a message and get that message to boaters within 45 minutes. They point out that the water portion of the EPZ constitutes approximately 50% of the EPZ which, during certain months of the year, might contain large" numbers of boaters. NYS Ex. 1, at 121.-
The record indicates that'the organizational ability and resources necessary_to manage an orderly evacuation in the water portion of the EPZ were adequately tested. FEMA ,
either observed or verified the actions that were taken in this regard.
Contentions EX-16K and EX-18C(i) basically concern the participation of bus companies which have agreed to provide buses in the event of an evacuation. In its direct I
L testimony, FEMA notes that it is standard practice in
' Region.II to evaluate a sample of bus companies at each exercise, taking care not to evaluate the same sample at each exercise. In order to evaluate LERO's integrated capability to provide buses, FEMA independently selected eight out of a total of 43 transit dependent general population bus. routes'to be run and " randomly" picked the drivers to run them. FEMA Ex. 5, at 130-31. Each FEMA evaluator who picked a driver accompanied that driver to the bus yard and along the route. FEMA's records do not indicate whether'these evaluators may'have spoken to bus company officials concerning the availability of buses.
However, FEMA did not, as it had indicated it would on page 73 of its testimony filed in this proceeding on April 17, 1984, verify with the bus companies the actual number of buses that.were available. Tr. 7680-86.
Interveners take the position that, first, FEMA's actions provide an inadequate basis on which to conclude that an adequate number of buses would be available and, second, those actions did not comport with its actions in other exercises where it' generally requires that all bus companies effected by the scenario be contacted and verifies with those companies the number of buses which are avail-able. NYS Ex. 1, at 138-39. LILCO believes that there is
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no reason to doubt that the bus companies would provide the number of buses to which they have agreed, noting that the provision of buses is their only function, and thus'there is no reason why the bus companies should have had a greater role in the exercise. LILCO Ex. 12, at 41-42.
We agree with LILCO. Clearly, what is involved is counting buses. Interveners advance no concrete reason why this should be accomplished in connection with an exercise other than the fact that FEMA testified in 1984 that it would do so. There does not appear to be any reason to .
doubt the bus companies' ability to provide buses and thus no reason to insist on a greater role in the exercise for -
them.15 .
Contentions EX-18C(iii) and EX-18C(vi) assert that the 4 participation by the Nassau County Red Cross and Nassau County was too limited. Interveners offered no direct 15 0ur conclusion is based on the fact that the bus companies' role is limited to iding buses. Were they also res equipping, and dispatching drivers,ponsible for briefing,prov our conclusion would be different.
4 e
l testimony or proposed findings on these contentions, and we see no need to further consider them.16 Contentions EX-15D and EX-16H assert that procedures related to the evacuation of EPZ hospitals should have been demonstrated and hospital officials should have participated.
in the exercise. Interveners filed extensive direct testi-many on these contentions. NYS Ex. 1, at 92, et seq. FEMA points out that sheltering is the primary protective action to be undertaken by EPZ hospitals. Therefore, no objective was-included concerning the hospitals and there was no need for them to participate. FEMA Ex. 5, at 114-15. This is in accord with the Licensing Board's holding that it was not necessary to plan for the evacuation of hospitals. See LBP-85-12, 21 NRC 644, 844. This holding was, subsequent to the exercise, remanded to the Licensing Board with direc-tions to require "...the applicant to fulfill the same planning obligations with regard to possible hospital evacuation as the Board imposed in connection with the 16 FEMA notes that one Red Cross representative participated in the EOC throughout the exercise and that several participated at the Nassau County Coliseum and congregate care centers. FEMA Ex. 5, at 139. LILCO notes that both the Red Cross and Nassau County participated.
LILCO Ex. 12, at 42-43.
I s
nursing / adult homes." The Board was directed by the Appeal Board to hold the remand in abeyance pending instructions from the Commission. ALAB-832, 23 NRC 135, 154-57, 163. In CLI-87-12, 26 NRC (1987), the Commission affirmed the remand, but indicated that the Licensing Board might again conclude that hospital evacuation need not be considered.
In light of this, we conclude that FEMA correctly excluded any objectives concerning hospitals from the exercise scenario. Moreover, the fact that the Appeal Board directed that the remand be held in abeyance, coupled with the Commission's decision to take review of the Appeal Board's decision, dictates that FEMA's conclusion should remain undisturbed.
We conclude that the exercise of the elements of LERO's organizational ability and resources necessary to manage an orderly evacuation called into question by these contentions complied with paragraph IV.F.1.
- 3. Protective' Actions for Schools l
l Interveners raise a number of issues under this heading i
l which cut across several exercise objectives. First, standard exercise objective 19 provides: Demonstrate the organizational ability and resources necessary to effect an L orderly evacuation of the schools within the plume EPZ.
f l
___.._-.___--_w
t This. objective was evaluated under specific objectives EOC 20'and Field 16. Second, FEMA added specific objective EOC 18 which provides:- ' Demonstrate the organizational
' ability necessary to effect an early dismissal of schools within the 10-mile EPZ, and a corresponding specific objec-tive, Field 15, which provides: Demonstrate a sample of resources necessary to effect an early dismissal of schools within the-10-mile EPZ. The specific objectives added by FEMA are not covered by a standard objective.
In'their contentions, Interveners assert that a demon-stration of shelterina of school children should have been included as an objective (EX-15E), that there was no obser-vation of'the organizat'ional ability necessary.to effect an early dismissal of-schools (EX-15F), that evacuation proce-dures for schools were omitted from the exercise (EX-15G),
o pod that the participation of school officials and per-
"sonnel , as well as school bus drivers, was tco limited (EX-16F, EX-16G, EX-26 and EX-18C(v]).
FEMA testified that, pursuant to the Board's conclusion
~
in LBP-85-12, 21 NRC 644, 858, that "...the written emer-gency plans required by-New York State are adequatefto provide reasonable assurance that adequate protective measures-(at schools] can and will be implemented in the
~
event of an emergency...," it did not adopt an objective 3 that would have required a demonstration of the ability to shelter school children. At the time he was preparing for the exercise, FEMA's Region II RAC Chairman, Roger Kcwieski, was not aware of an evolving FEMA policy which would have dictated that such an objective be included. Further, the FEMA witnesses were of the opinion that school emergency plans are required by the State Board of Education as a part of the school certification process. See FEMA Ex. 5, at 116; Tr. 8394-8421, 8596-99.
In its direct testimony, FEMA noted, in response to the allegation that it did not observe any demonstration of the organizational ability to effect an early dismissal of schools, that such an observation could not be made because simulated telephonic advice not to open schools was given to school officials by LERO officials from the latter's homes prior to reporting to the EOC. FEMA Ex. 5, at 117. On cross-examination, the FEMA witnesses equated early dis-missal and not opening for the day. Tr. 7595, 7601. They testified that the organizational ability necessary to effect either was demonstrated by the act of telephoning the schools (Tr. 7599-7601), and that while the telephone calls were not observed by a FEMA evaluator, they were verified by interviewing the individual who made the calls (Tr. 7595).
e
Thus:it appears that, although the telephone calls were not observed, FEMA nonetheless regards objective EOC 18 as
~
-having been met.
Only.the Shoreham-Wading River School District partici-pated in the exercise. Tr. 6848, 6932. Therefore, FEMA based its conclusions with regard to objectives Field 15 and
~16 on interviews of those school officials and school' bus personnel and on actual observation of the completion of.one school bus route using LERO resources. FEMA Ex. 5, at 119.
FEMA concluded that the. simulated dispatch of 17 sabool buses to the'Shoreham-Wading River High School 17 and the release of students for transportation to their homes demonstrated these objectives (FEMA Ex. 1, at 43), and that objective Field 16 was only partly met by the Patchogue Staging Area with respect to the bus route run by a LERO bus because of a 40-minute delay in dispatching the bus (FEMA Ex. 1, at 66). The FEMA witnesses believe that a greater degree of participation on the part of the schools is necessary "...in order to reach any kind of a conclusion 17 Under the plan, the schools utilize their own resources to implement protective actions with LERO providing backup resources if necessary. LILCO Ex. 12, at 37; Tr. 6940-41.
O
(concerning] the capability of school districts more gener-ally to respond to a Shoreham emergency" (Tr. 7603), and assigned an ARCA recommending that, in the future, all schools must be included in Federally evaluated exercises and drills (FEMA Ex. 1, at 41). FEMA had requested such participation prior to the exercise, but LILCO determined not to invite other school districts to participate.
Tr. 7605-09.
In its direct testimony, LILCO offered no explanation of its determination not to invite more school districts to participate. On examination by Staff counsel, LILCo's witness Daverio testified that he was aware of various resolutions and other expressions of opinion concerning emergency preparedness attributed to school districts and related organizations. See NYS Ex. 2, Att. 7. The fol-lowing colloquy then took place:
L Q- Given the apparent position of these resolu-tions and petitions, would participation by the
' schools have been a reasonably achievable objec-tive, in exercise?your view, for the February 13th A Given the resolutions as I think I said before, I didn't have direct knowledge that they wouldn't f- participate but I would have a hard time believing they would have.
Q ... was the same view expressed to you by LILCO management?
l
A They expressed the view that they did not want to write the letter. And, I assume that was the reason but I don't know. -
Tr. 6973-75; see also Tr. 6348. This is the only explan-ation in the record of LILCO's decision not to seek partici-pation by the school districts, although even Interveners acknowledge that it is unlikely that the schools would have participated if invited. Interveners' proposed findings, at 135. LILCO has committed to seek broader participation by school districts in the future. Tr. 6953.
LILCO maintains that sheltering, early dismissal, and evacuation are activities that are frequently carried out by schools under their existing emergency plans and conse-quently they need not be exercised. Further, LILCO asserts that the means to effect early dismissal were demonstrated, as well as LERO's ability to assist in evacuation. See LILCO Ex. 12, at 36-38. On cross-examination, LILCO's witnesse5 conceded that more schools should have been involved in the exercise. They adhered to their position, however, that'one could infer from the participation that in fact occurred and from the existence of emergency plans in the schools that the affected schools could implement protective actions in the event of a shoreham emergency.
Tr.6951-53.
l
l i
Interveners have no substantial disagreement with the t
facts set forth above. They argue that these facts show that FEMA did not conform to its normal practices in the Shoreham exercise insofar as its evaluation of school preparedness is concerned and that the exercise did not conform to regulatory requirements. NYS Ex. 1, at 68-84.
All parties recognize that there must be more extensive school participation. We agree that school participation is of great importance. The issue which we must decide is whether the participation'that did in fact take place was all that was reasonably achievable. There is nothing in the record that indicates whether the schools would have par-ticipated if asked. Indeed, we have only Mr. Daverio's speculation, elicited by Staff counsel, on the reason LILCO management decided not to issue the invitation when asked to do so by FEMA, and the probable response of the schools had an invitation been issued. LILCO bears the burden of proof.
See 10 CFR 2.732. It has not established that the school participation which did take place was all that was 0
0 0
e 6
- . - 0 - - _ _- - _ _ _ _ - _ . . _ - _ - _ _ _ - - - - - - . -
reasonably achievable. Consequently, we must conclude that j greater participation was reasonably achievable.18 Certain subsidiary issues concerning the scope of I school participation are raised by this record. We decline to decide them. It appears that at the time of the exer-cise, guidance on these issues was developing. GM EV-2, the l 1
purpose of which is to provide guidance to Federal, State, and local government. officials with respect to emergency preparedness for schools, came into existence in draft form shortly before the February 13 exercise and was issued on November 13, 1986. As a result, the present policy with respect to participation by schools in exercises differs from that which existed when the exercise was planned and ~
executed. See NYS Ex. 2, Att. 6; Tr. 8394-96, 8406-08.
Given our conclusion that greater school participation was reasonably achievable, it makes little sense to consider whether the policy with respect tt schools in effect at the .
18 Were the burden of proof on Interveners, we would be forced to conclude that they had not demonstrated that greater school participation was reasonably achievable, and consequently decide this issue in LILCO's favor. This is a rare instance when, evidence establishing one condition or the other lacking, the issue must be decided against the party bearing the burden of proof.
e
time of the exercise was both appropriate under the regu-lation and satisfied by what transpired.
- 4. Ingestion Pathway -
This topic is covered by the following standard exer-cise objectives:
- 9. Demonstrate appropriate equipment and proce-dures for collection, transport, and analysis of samples of soil, vegetation, snow, water, and milk;
- 11. Demonstrate the ability to project dosage to the public via ingestion pathway exposure, based on field data, and to determine appropriate protective l
measures, based on PAGs and other relevant factors; and
- 12. Demonstrate the ability to implement protec-tive actions for ingestion pathway hazards. Conten-tions EX-15I, EX-16A, EX -3 7A , EX-37B, EX-37C, and EX-37D raise matters concerning the ingestion exposure pathway.
None of these objectives were evaluated during the 1
exercise. FEMA takes the position that not "...all major planning.and preparedness elements incorporated in the 35 exercise objectives..." need to be included in every full scale exercise. It notes that the NRC requested an exercise
' ~
_ 43 -
which emphasized a demonstration of response capabilities within the plume exposure EPZ and did not object when ingestion pathway objectives were not included.
Tr. 7529-30. FEMA also notes that there has not'been a full scale exercise of the ingestion exposure pathway at any of-the three operating nuclear sites in New York. Tr. 7526-28.
Consequently, FEMA agreed with LILCO that ingestion pathway objectives would not'be included in the exercise.19 FEMA Ex. 5. at 125-26.
.LILco's position is that ingestion exposure pathway objectives need not be tested in order to qualify as a full participation exercise. LILCO Ex. 12, at 39. Inte rvenors ',
position is contrary, although they concede that ingestion pathway objectives are not currently included in exercises at other New York nuclear sites. NYS Ex. 1, at 148-49.
State officials testified that they have refused to include such objectives until guidance concerning them is forth-coming from FEMA. Tr. 7208-10, 7232-33. While FEMA appar-ently has accepted this position on the part of New York State, it acknowledges that ingestion pathway objectives 19 LILCO takes the position that it wanted ingestion pathway objectives tested at the exercise. Tr. 6837.
I
= .
could have been tested and that the major factor dictating that they be excluded was the guidance emanating from Staff that "... FEMA emphasize evaluation of the functional areas of emergency preparedness related to the demonstration of response capabilities within the plume exposure (10-mile)
Emergency Planning Zone." Tr. 7239; June 20, 1985 Memorandum for Richard W. Krimm of FEMA from Edward L.
Jordan of NRC.
Paragraph IV.F.1 clearly requires, in addition to testing as much of a plan as_is reasonably achievable, that each State within the ingestion exposure pathway EPZ par-ticipate in the initial full participation exercise. Thus both connecticut and LERO, subst'ituting for New York, should have been included and the exercise scenario should have included ingestion pathway objectives.20 It is unfortunate that these objectives were excluded on the suggestion of the Staff. Nonetheless, that circumstance cannot alter the fact that this exercise did not meet the requirements of para-graph IV.F.1 in this respect.
20 We cannot agree with LILCO that the requirement for participation by ingestion exposure pathway States merely requires participation to the extent dictated by the scenario. Tr. 6850-52. Such an interpretation would effectively read this requirement out of the regulations.
?
4
. -o
- 5. Recovery and Reentry Like.the ingestion exposure pathway, this topic was not included in the exercise. It is covered by the following standard objectives:
- 34. Demonstrate the ability.to estimate total population exposure; and
- 35. Demonstrate the ability to determine and implement appropriate measures for controlled. recovery and reentry.
Contention EX-15M asserts that recovery-and reentry -
objectives should have been included in the exercise. FEMA excluded-these objectives for largely the same reasons that it excluded ingestion pathway objectives, plus the fact that the U. S. Environmental Protection Agency had not promul-gated final guidance governing these activities. FEMA regards its decision in this regard as consistent with its practice in other full-scale Region II exercises. FEMA Ex.
5, at 128. On-cross-examination, the FEMA witnesses indi-
-cated that, while recovery and reentry is a major observable portion of the plan, the lack of final guidance from EPA concerning doses which would be considered acceptable on reentry meant that there was no standard against which to i
G
measure exercise performance. .This situation lead Region II to agree with New York State officials that it was appro-priate to exclude recovery and reentry objectives from New
' York exercises. These objectives had been included until August 1983. Tr. 7673-79. -
LILCO concedes that recovery and reentry activities were excluded from the exercise despite LILCO's willingness to. include them, but does not believe that that fact demon-strates a fundamental flaw. LILCO Ex. 12, at 40-41; Tr. 6921. We conclude that the lack of final EPA guidance on acceptable reentry doses dictates the conclusion that testing these functions was not reasonably achievable.
Therefore, we do not consider the absence of this demon-stration in determining whether this exercise met the requirements of paragraph IV.F.1.
- 6. Specia'l Facilities .
Standard objective 18 provides: Demonstrate the organizational ability and resources necessary to effect an orderly evacuation of mobility-impaired individuals within the plume EPZ. This objective was evaluated under specific objectives Field 13 and Field 14. Interveners assert ~in Contention EX-16I that officials of nine nursing and adult homes located in the EPZ did not participate, in Contention L
^
l -
EX-16J that officials from facilities outside the EPZ which are relied on to receive the special facility evacuees did not participate, in Contention EX-15K that procedures related to the radiological monitoring and decontamination of these evacuees were' excluded, and in Contentions EX-16L and EX-18C(ii) that certain ambulance companies did not participate.
During the Exercise, LILCO assessed the seriousness of the accident and decided to evacuate residents of special facilities. With perhaps two or three exceptions (see Tr. 6833-34, 2904 [Daverio)) LILCO's communications with special facilities were simulated. Tr. 7592, 7628 (Baldwin). FEMA e9aluated the performance of one ambulance and one ambulette which were sent to two special facilities within the EPZ and then to locations outside the EPZ. There was no test of the availability of facilities outside the EPZ to handle special facility evacuees. NYS Ex. 1, at 87, 105, 106-107; Tr. 6931 (Daverio). Most special facility reception centers have yet to be arranged. Tr. 2913 (Daverio); FEMA Ex. 3, Att. 1, at 12; Harris and Mayer, ff.
Tr. 2992, at 13. There was no specific test of LILCO's capability to register, monitor or decontaminate special facility evacuees. NYS Ex. 1, at 104-105. LILCO takes the position that the techniques are the same as those l
l l
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e demonstrated at the Nassau Coliseum for the general population.21 LILCO Ex. 12, at 40; FEMA Ex. 5, at 127.
FEMA did not evaluate whether LILCO had enough ambulances and ambulettes or drivers available to handle an evacuation, although it acknowledged that this was something which it had committed to evaluate in a Shoreham exercise. NYS Ex. 1, at 109-10; Tr. 7689-92 (Kowieski, Keller). FEMA interviewed no ambulance company officials and thus did not evaluate whether ambulance company officials were knowledgeable about what was expected under the Plan. NYS Ex. 1, at 108-10, 112; Tr. 7192-94 (Petrone).
FEMA did not evaluate, even on a spot-check basis, the capabilities of the personnel at special facilities inside or outside the EPZ to carry out the actions contemplated under the LILCO Plan. NYS Ex. 1, at 87, 100, 102,. 103, 105.
The FEMA witnesses indicated that it is not standard practice to evaluate the capabilities of special facility personnel. FEMA Ex. 5, at 115. The evidence indicates generally that, with respect to special facility residents, .
the Shoreham test was approximately the same as at most .
21 WeEX-47.
Contention will consider this issue in detail under l
1
_ _ _ _ _ l
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~
other exercises, with the exception that actual phone calls are often made to special facilities at other exercises.
NYS Ex. 1, at 100 n.46; Tr. U663 (Kowieski).
In 1984, FEMA testified that it_would evaluate, through a sampling approach during an exercise, the level of coordi-nation between LILCO and adult and nursing homes.
Tr. 7662-63 (Keller). In this hearing, the FEMA witnesses stated that this was necessary because such coordination constitutes a major observable portion of the plan.- They took the position, however, that this evaluation did not have to occur during the first Shoreham exercise.
Tr. 7663-64 (Keller) .
We agree that the level of coordination between LERO and the special facilities should be evaluated and add only that'such evaluation must include an evaluation of LERO's
- ability to communicate with.special facilities. Further, we agree that an evaluation of the preparedness of the ambu-lance and ambulette companies should have been included. .No showing has been made that a test of these aspects of the plan was not reasonably achievable. Consequently we con-clude that such an evaluation should have been a part of this exercise in order to satisfy the requirements of paragraph IV.F.1.
4 N_ . . _ _ _
{
E We do not agree with Interveners that we should disap-prove-FEMA's practice of declining to review the emergency plans of special facilities themselves. See Interveners proposed: findings at 137. No reason is apparent on this record why FEMA's' practice should be disapproved. Simi-larly, we see no reason to reject LILCO's position that the monitoring and' decontamination of special facility popula-tions requires no showing in addition to that made for the general population.
. Conclusion on Contentions EX-15 and EX-16
~
G.
In sum, we find that testing of the following portions of the plan was reasonably achievable and should have been accomplished:
- a. transmission of an EBS message to WALK Radio and authentication of that message by WALK Radio;
- b. participation by more school districts in the exercise scenario;
- c. implementation of protective actions in the ingestion exposure pathway in both Connecticut and New York; and
- d. coordination and communication between LERO and special facilities, including a review of the preparedness of ambulance companies relied on by LERO.
e 0
In reaching these conclusions, we do not question the oft repeated testimony of the FEMA witnesses that the February 13, 1986 Exercise was as comprehensive as any conducted in FEMA Region II up to that time. See, e.g.,
FEMA Ex. 5, at 92, 105; Tr. 7633, 7645-46, 8476, 8491.
However, the fact remains that the exercise scenario failed to properly take the commission's regulatory requirements for initial full participation exercises into account. As a result, the exercise failed to test some parts of the plan which reasonably could have been tested, and therefore failed to comply with 10 CFR Part 50, Appendix E, paragraph IV.F.1.
II. CONTENTION EX-21 A. The Allegations Contention EX-21 alleges that FEMA had insufficient data to support the conclusion that certain exercise objec-tives were met. The sample sizes used by FEMA in making its review, it alleges, were much too small to support FEMA's conclusions concerring these objectives.
While Contention EX-21 was admitted as an independent contention, it is closely related to and was heard with Contentions EX-15 and -16. In their proposed findings (at 4
j
..._.____._.-______.__.--___m--
d
- t .
52 -
146-47) Interveners point out that the conceptual difference between the contentions is that contention EX-21 focuses on whether FEMA had a valid basis to find that particular Shoreham objectives had been satisfied, while Contentions EX-i5 and EX-16 focus on Appendix E. For decisional pur-
-poses, they believe Contention EX-21 is best addressed as a' further basis for the Interveners' position that the Shoreham Exercise was too limited.
In-Interveners' view,.most of the factual matters raised in Contention EX-21 and which are the subject of.
dispute, namely the sufficiency of school (EX-21C), bus (EX-21B), and special facility (EX-21D) testing, are covered in Contentions EX-15 and EX-16. In our discussion of those '
contentions, we conclud'ed that the testing of schools and special' facilities had been insufficient to comply-with paragraph IV.F.1 of Appendix E, and we do not address these
. matters again. We did not reach the same conclusion with respect to busses, because Interveners' position boiled down to the proposition that available busses should have been counted during the exercise. The question of the adequacy of the sample of bus drivers-tested by FEMA was raised only by~ Contention EX-21; that question is discussed below.
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l Two_ subparts of Contention EX-21 -- dealing with i
Traffic Guides and Congregate Care Centers -- were not l addressed in great detail or at all by Interveners in the context of that contention. Interveners state that there' was no substantial evidence to support the view that the Exercise was too limited with respect to the traffi'c guides (EX-21E). Interveners proposed findings, at 146 n. 145; suffolk Ex. 99, at 62-63; Tr. 7393-94 (Simon) (County's witness does not strenuously criticize looking at 32 of 165 traffic guides). On the question of Congregate care Cen-ters, Interveners offered no testimony in support of the allegations in Contentions EX-15L, -32, -22K, and -16N, which were not separately admitted, but considered as additional bases for Contention EX-21. We do not address either of these matters.
The alleged failure of FEMA to include a realistic number of road impediments (EX-21F) will be dealt with in connection with Contention EX-41. The only other Contention EX-21 factual area concerns the testing of LILCO's Route Alert Drivers ,(EX-21A), who are to provide notification to the public in the event of siren failures. The route alerting situation is discussed below.
i B. Suffolk County's Testimony' '
Suffolk's witness on Contention EX-21.was Dr. Gary A.
Simon, an Associate Professor of Statistics at New York University's Graduate School of Business Administration.
Suffolk Ex. 99 Dr. Simon testified that the evaluation of the exercise was done without reasonable thought as_to ,
sample sizes or random selection mechanisms. Id. at 5.
The FEMA evaluation was a decision-making investi-gation, designed to determine whether exercise objectives were met, based on the performance of particular emergency functions. Dr. Simon believes that, in order for FEMA to determine the appropriate size of the samples it reviewed, it should have specified in advance its target value (what proportion of adequate player performances constitutes j meeting the Exercise objective), _its bad value (what propor-tion of inadequate performa,nce would constitute unambigu-ously or definitely not meeting the exercise objective), and the probability with which it wished to be able to make that distinction. A la ge sample selected without regard to these criteria will nonetheless succeed in revealing blatant aspects of the population. Small samples, on the other hand, will produce results with such large error bounds that they are virtually meaningless. Id. at 16-17; Tr. 7404-5.
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LILCO and FEMA agreed that the use of small samples produces results that are subject to wide statistical variation.
Tr. 7300 (Daverio), 8480 (Kowieski).
Dr. Simon testified that from what he had been able to review, FEMA essentially made no reasoned sample-size decisions based on what it was trying to determine or how accurately it was trying to determine it. A casual, hap-hazard selection process, as opposed to randomization, was used by FEMA in its evaluation.22 He believes that FFMA's failure to use the principles of random sampling, at 2eact in some modified form, greatly diminishes the validity of FEMA's conclusions. Suffolk Ex. 99, at 18; Tr. 7367-G6.
FEMA acknowledged that its dethod of selection was hap-hazard. Tr. 8582-83 (Baldwin, Keller, Kowieski).
Subcontention EX-21A alleges that only three Route Alert Drivers, one'from each Staging Area, were dispatched 22 Tr. 7292 (Deverio). As witness Daverio pointed out, a non-statistical synonym for " random" is " haphazard". In statistics, however, " random selection" refers to a process in which even item or individual in the population has the same probability of being selected; a selection process which depends on chance but in which procedures are not t'aken to assure equal probability of selection is referred to as " haphazard". Our use of these terms will be consistent with the statistical definitions.
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by LERO during the exercise in response to simulated siren failures, and that this small sample of Route Alert Drivers observed invalidates FEMA's conclusion with respect to objectives Field 5, SA 9, and EOC 15. Suffolk Ex. 99, at 27-28.
Dr. Simon testified that a sample size of three out of a total of 60 was not enough to reach a valid conclusion about the entire population of route alert drivers. Id.
at 28. Nor was a sample of one driver out of a total of 20 in each staging area sufficient to justify conclusions about.
t,he-entire population of drivers in each-staging area.
Because of the small sample sizes, Dr. Simon believes that there was no basis for FEMA to conclude that exercise
, objective Field 5 was " partly met" at each Staging Area.23, 23 Suffolk Ex. 99, at 29. Dr. Simon presented some hypothetical statistics based on a sample size of three taken from a popalation of 60, to show what the 95%
confidence three samples.
limits would be in zero to three successes in the For only one success out of three, the result would be: it is 95% certain that anywhere from one to 51 of 60 Route Alert Drivers would perform properly. For three out of three, the result would be: it is 95% certain that anywhere from 23 to 60 out of 60 route alert drivers would perform properly. Dr. Simon characterized these confidence intervals as " terribly wide." Id. at 33-34. If a sample size of ten were used with a targeE value of 75%
proper performance and a range of " bad" values from 0% to 35%, one could make distinctions with a confidence of 70%.
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Subcontention EX-21B alleges that FEMA observed only two bus drivers from each of the Riverhead and Port Jefferson Staging Areas, whereas 100 bus' drivers are re-quired to make 139 trips out of the Riverhead Staging Area,.
and 108 bus drivers are required to make 169 trips out of the Port Jeffer' son Staging Area. Suffolk alleges that FEMA's conclusions that objective Field 9 was met at the Riverhead and Port Jefferson Staging Areas are without. basis and invalid. At the Patchogue Staging Area, FEMA observed four bus drivers, and on the basis of their inadequate performance concluded that. objective Field 9 was not met. ,
Based on its observations of these eight drivers making a total of eight runs, of which three were judged unsatis-factory, FEMA concluded that objective EOC 16 was met.
Suffolk alleges that the small sample size invalidates this conclusion. Suffolk Ex. 99, at 36-37.
Dr. Simon testified that observing eight out of a total of 333 bus drivers is inadequate to determine whether there are significant departures from the desired performance targets or to determine the actual probability of good (Footnote Continued Finer distinctions w)ould require still larger sample sizes.
Id. at 35.
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performance from the population as a whole. Moreover, since at least three of the eight drivers in the sample performed inadequately, a positive conclusion concerning the perfor-mance capabilities of the entire population would be par-ticularly improper.24 C. Discussion and Conclusion !
Dr. Simon's testimony was essentially unchallenged, and appears to accurately reflect, from a statistical 24 Suffolk Ex. 99, at 40; Tr. 7377. Again Dr. Simon presented a. table of hypothetical statistics, to show what results could be expected from a sample of eight out of a population of.333. Id. at 41. With five out of eight bus drivers performing adsquately, as FEMA found during the exercise, the confidence interval ranges from 29% to 89%;
that is, it is 95% certain that between 29% and 89% of the LERO bus drivers could adequately perform their jobs in a Shoreham accident. In Dr. Simon's opinion this result does not support the conclusion that there is reasonable
, assurance that the bussing plan can and will be implemented effectively. In addition, Dr. Simon criticizes FEMA's haphazard selection of the bus drivers to be observed, as opposed to random selection. He believes a haphazard j selection process could be a good substitute for a l scientifically random process; but states that we have no l way of knowing what kind of biases were introduced into the process. For example, he suggests the selections might have been based upon the ease of FEMA evaluators to observe particular bus routes, which may have resulted in selection of routes that were particularly easy, or particularly difficult, etc. But even if the selection had been properly randomized, the small sample sizes would still have precluded reasonable findings. Id. at 42-43; Tr. 7377-78, 7396-97.
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standpoint, the nature of FEMA's observation on these points. LILCO took the position in its proposed findings (at 56-58).that it was not necessary to employ the statistical techniques advocated by Dr. Simon for purposes of evaluating emergency planning exercises. Staff views Dr. Simon's testimony as failing to allege or prove: first, that a fundamental flaw exists in the plan, and, second, that FEMA's method of observation is unreliable. Staff also views the testimony as a challenge to the regulations.25 Staff proposed findings, at 32-39.
In their proposed findings (at 149-51), Interveners i note that the definition of " Full Participation" contained 25 Staff, citing Tr. 7609, claims that Dr. Simon stated, in concluding his testimony, that the NRC regulations should require random statistical sampling. We-find no statement i by Dr. Simon on the cited transcript page. At Tr. 7408-09, however, Staff counsel Barth asked Dr. Simon, view that the NRC should require statistical samples in"Is it your these exercises?" Dr. Simon replied, "Well, you know, it is like asking a Minister if he believes in God, I suppose. It is a statistical Article of Faith that samples randomly selected have many features that make them desirable and appropriate. So, tne answer is, yes."
Barth concluded his questions. If StaffWith that counsel intended to cite this exchange to support the position that Dr. Simon's testimony was a challenge to the regulations, we strongly disagree -- it looks more like the witness was being set up.
Dr. Simon's response-was an honest, if whimsical, answer to a devious g estion the subtlety of which we believe he did not appreciate.
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in footnote 4 to paragraph IV.F.1 requires ". . . mobilization of ... personnel and other resources in sufficient numbers to verify the capability to respond to the accident scenario." They raise the question whether FEMA's sampling technique permits any valid conclusions with regard to response capability, given its statistical infirmities.
However, theysalso note that LILCO and FEMA correctly point j out that the regulations do not call for any statistically valid technique, and that FEMA's expertness and experience enable it to reach a judgement with regard to performance.
'They urge that neither position,be accepted in f'ull. They also urge us not to-decide the issue. Based on this, in its reply findings (at 25-26), LILCO urges that this contention be dismissed.
We are happy to accept Interveners' invitation to refrain from deciding what appears to us to be a complicated issue. While Dr. Simon's conclusions regarding the statis-tical validity of FEMA's observations of route alert and bus drivers appear to be beyond question, the issue of whether statistically valid sampling techniques are required in-volves considerations far beyond those dealt with at this hearing. Consequently we reach.no conclusion as to the requirements of footnote 4 to paragraph IV.F.1, and have included a discussion of Dr. Simon's testimony so as to bring this issue to the attention of the Commission.
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III. CONCLUSION We have concludec, for the reasons indicated in the foregoing, that the February 13, 1986, exercise of the offsite' emergency plan for the Shoreham Nuclear P0 iter Station did not comply with the requirements of 10 CFR Appendix E, paragraph IV.F.1.
In accord with_10 CFR 2.760(a), this Partial Initial Decision will constitute the final action of the rinclear Regulatory Commission thirty (30) days after its date unless, an appeal is taken. In accordance with 10 CFR 2.762(a), any party may take an appeal by filing a notice of appeal within d '
ten (1b) days after service of this Partial Initial ,-
Decision.
THE ATOMIC SAFETY AND LICENSING BOARD tm, ~~
N R(A}( .
Af:
Oscar H., Paris ADMINIS TIVE JUDGE
. (, (/ (a ht Frederick J. Sbon '
ADMINISTRATE Q JUDGE
,K John \H Fry @,'III /
Bethesda, Maryland December 7, 1987 e2 e
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