ML20238D115

FEMA Petition for Leave to File Memorandum in Support of Lilco Motion for Immediate Certification to Commission of Issues Presented by LBP-87-32 or for Expedited Briefing, Argument & Decision by Appeal ....* Certificate of Svc Encl

ML20238D115
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/22/1987
From:	Cumming W Federal Emergency Management Agency
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#188-5238 LBP-87-32, OL-5, NUDOCS 8801040107
Download: ML20238D115 (8)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION C3 QQl[ /

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i Before the Atomic Safety and Licensing Appeal Board

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In the Matter of )

) l LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-5

) (EP Exercise) .

(Shoreham Nuclear Power Station, Unit 1) ) I

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FEMA PETITION FOR LEAVE TO FILE MEMORANDUM IN SUPPORT OF LILCO'S MOTION FOR IMMEDIATE CERTIFICATION TO THE COMMISSION OF ISSUES PRESENTED BY LBP-87-32 OR FOR EXPEDITED BRIEFING, ARGUMENT AND DECISION BY THE APPEAL BOARD l

l William R. Cumming i Counsel for FEMA l December 22, 1c87 I

8801040107 871228 2 PDR ADOCK 0500 0

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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. 50-322-5 l

) (EP Exercise)

(Shoreham Nuclear Power Station, Unit 1) )

)

FEMA PETITION IOR LEAVE TO FILE MEMORANDUM IN SUPPORT OF LILCO'S MOTION FOR IMMEDIATE CERTIFICATION TO THE COMMISSION OF ISSUES PRESENTED BY LBP-87-32 OR FOR EXPEDITED BRIEFING, ARGUMENT AND DECISION BY THE APPEAL BOARD William R. Cumming Counsel for FEMA December 22, 1987

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board i

)

In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5 -

) (EP Exercise)

(Shoreham Nuclear Power Station, Unit 1) )

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FEMA PETITON FOR LEAVE TO FILE MEMORANDUM IN SUPPORT OF LILCO'S MOTION FOR l IMMEDIATE CERTIFICATION TO THE COMMISSION OF ISSUES PRESENTED BY LBP-87-32 OR l

FOR EXPEDITED BRIEFING, ARGUMENT AND DECISION BY THE APPEAL BOARD l

I. INTRODUCTION FEMA hereby seeks leave of the the Appeal Board to support the LILCO Motion for immediate certification to the Commission of issues presented by LPB-87-32 or for expedited briefing, argument and decision by the Appeal Board.

FEMA's concerns are based on its own administrative process, and FEMA's need to conduct its plan review and exercise program to comply with the three disparat, clements of the Nuclear Regulatory Commission's administrative system, riaely the Commission itself, the Commission staff, and the formal adjudicatory process. Since FEMA supports the briefing schedule suggested by LILCO it is not necessary to restate it in this introduction. FEMA, however, believes that the issues that are listed for analysis by LILCO on page 9 of its December 19, 1987, filing do not adequately incorporate FEMA concerns, although they are necessarily related. Accordingly, as in past, FEMA believes that NRC should be the arbiter of its own regulatory scheme and FEMA may only be in position to point out implications of NRC possible interpretations on FEMA's own administrative process.

II. QUESTIONS FOR CERTIFICATION

1. Was the admission of Contentions 15 and 16 consistent with CLI-86-11?

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2. If the admission of Contentions 15 and 16 was consistent with CLI-86-11, was that admissibility limited to determining whether FEMA had deviated from its normal exercise procedures?

3. Given the current dual regulatory scheme, namely 10 C.F.R. Part 50 and 44 CFR Part 350, were there discontinuities between NRC ability to make a predictive finding and FEMA's responsibility to give final Part 350 approval when response resources are in place that impacted the design and development of the February 13, 1986, exercise?

4. Did the previous staff and Commission approval of the disaggregation of plan elements (major observable portions) into discrete elements for testing in exercises preclude FEMA from analogizing or making inferences on plan implementability given its expertise?

! 5. Did the Commission delegate to its staff and FEMA the determination of I what was " reasonably achieveable without mandatory public participation" in l such a way as to preclude ASLB review of the staff and FEMA interpretation of l that standard?

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6. Alternatively, if the Commision intended ASLB's to review staff and FEMA determinations of what was " reasonably achieveable with mandatory public participation" what was the legal standard the ALSB's were to adopt to overturn the staff and FEMA determinations? For example was the standard adequate evidence, substantial evidence, preponderance of the evidence or some other standard?

7. Since the standard of NUREG 0654 requires planning for a range of accidents, and exercises have traditionally tested a single scenario, was FEMA precluded by Commission regulations from adopting any particular scenario on the day of the February 13, 1986, exercise, and does the Licensing Board's decision now require that FEMA must adopt scenarios that require full

" implementation" of protective actions in the ingestion pathway?

8. Did the adoption of legally enforceable resolutions of non-participation preclude FEMA from requesting greater participation by school districts the day of the exercise?

9. Are school districts response organizations under New York State law and NUREG 0654 requiring their participation in exercises, or are they representatives of the group covered by the exclusionary language "without mandatory public participation"?

10. Was FEMA required to test elements of the plan the day of the exercise that did not exist, including special facilities?

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III. Conclusion FEMA respectfully requests that the Appeal Board certify . he t above listed

, ' issues to the Commission, or if declining to do so set an expedited briefing schedule. Additionally, the Appeal Board should be on notice that FEMA believes that the issues listed above impact other administrative activity-y .concerning other sites. The General Counsel's Office of NRC was briefed prior to this filing as to FEMA's concerns. Accordingly, FEMA respectfully requests it be given an opportunity to brief its concerns should the' Appeal Board-retain jurisdiction.

Respectfully submitted, n-=

f, William R. Cumming Counsel for FEMA l f

Federal' Emergency Management Agency 500 C street, S.W.

Washington, D.C.

Dated: December 22, 1987

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UNITED STATES OF AMERICA i 0 gCOI3N P NUCLEAR REGULATORY COMMISSION g NGg /

j x Ch.51b cp BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD ,

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In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5

) (EP Exercise)

(Shoreham Nuclear Power Station, )

Unit 1) ) l CERTIFICATE OF SERVICE l

I hereby certify that copies of " FEMA PETITION FOR LEAVE TO FILE MEMORANDUM IN SUPPORT OF LILCO'S MOTION FOR IMMEDIATE CERTIFICATION TO THE COMMISSION OF ISSUES PRESENTED BY LPB-87-32 OR FOR EXPEDITED BRIEFING, ARGUMENT AND DECISION BY THE APPEAL BOARD"in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class this 22nd day of December, 1987:

Alan S. Rosenthal, Chairman Mr. Frederick J. Shon l Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Fifth Floor (North Tower) U.S. Nuclear Regulatory Commission  :

East-West Towers East-West Towers, Rm. 430 l 4350 East-West Highway 4350 East-West Highway  !

Bethesda, MD 20814 Bethesda, MD 20814 Howard A. Wilber Lando W. Zech, Jr., Chairman Atomic Safety and Licensing U.S. Nuclear Regulatory Commission i Appeal Board- 1717 H Street, N.W.

Fifth 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 East-West Towers 1717 H Street, N.W. 4 4350 East-West Highway Washington, DC 20555 Bethesda, MD 20814

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Commissioner Kenneth M.' Carr Dr. Oscar H. Paris U.S. Nuclear Regulatory Commission Atomi.c 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 Highway U.S. Nuclear Regulatory Commission Bethesda, MD 20814 1717 H Street, N.W.

Washington, DC 20555 James P. Gleason, Chairman Atomic Safety and Licensing Board Mary Gundrum, Esq.

513 Gilmoure Drive Assistant Attorney General Silver Spring, Maryland 20901 120 Broadway 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 East-West Towers, Rm. 427 Agency 4350 East-West Highway 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 Atomic Safety and Licensing RAC Chairperson 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 mailroom) Public Service, Staff Counsel Bethesda, MD 20814 Three Rockefeller Plaza Albany, New York 12223 m

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m l-l Herbert H. Brown,.Esq. Ms. Nora Bredes Lawrence Coe Lanpher, Esq. Executive Coordinator Karla J. Letsche, Esq. Shoreham Opponents' Coalition

l. Kirkpatrick & Lockhart 195 East Main Street South Lobby - 9th Floor Smithtown, New York 11787 l

• 1800 M Street, N.W.

Washington, D.C.- 20036-5891 Gerald C. Crotty, Esq.

Counsel to the Governor 4' Fabian G._ Palomino, Esq. Executive Chamber Richard J. Zahnieuter, Esq. State Capitol Special Counsel to the Governor Albany, New York 12224 Executive Chamber .

Room 229 State Capitol Dr. Monroe ~Schneider l Albany, New York 12224 North Shore Committee l P.O. Box 231 l Martin Bradley Ashare, Esq. Wading River, NY 11792 l Eugene R. Kelly, Esq.

l. Suffolk County Attorney.

l H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11787 William R. Cumming l-Federal Emergency Management Agency i

DATED: December 22, 1987 4

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