ML20244C476

Advises That FEMA Testimony in Upcoming Hearing on 1988 Emergency Planning Exercise Should Discuss Listed Matters in Detail

ML20244C476
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/01/1989
From:	Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Cumming W Federal Emergency Management Agency
Shared Package
ML20244C468	List: ML20244C465 ML20244C476 ML20244C483 ML20244C503
References
FOIA-89-100 OL-5, NUDOCS 8904200232
Download: ML20244C476 (3)

Text

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.,, - _ , _ . gM February 1, 1989-h William R. Cumming..Esq.

y ~+r Office of General Counsel Federal Emergency. Management Agency

'500 C Street, SW '

n Washington, DC 20472 z

In the Matter of LONG' ISLAND LIGHTING COMPANY (ShorehamNuclearPowerStation, Unit 1)

Docket No. 50-322-OL-5 (EP Exercise)

Dear Mr. Cuming:

As you- discussed with me, FEMA is preparing testimony to be submitted in the upcoming hearing on the 1988 Shoreham emergency planning exercise.

"This testimony is scheduled to be filed on February 28, 1989.

Under' CLI-86-11 23 NRC 577, 581 (1986) hearings on emergency planning l exercises were to be restricted to issues concerning whather the exercise revealed " fundamental flaws" in the emergency 9 .. The Nuclear 3

Regulatory Commission's Atomic' Safety and Licensing . Appeal . Board in a t decision (ALAB-903) of November 10, 1988, in this proceeding stated that a fundamental flaw has two elements: "First, it reflects a failure of an ~

essential element of the plan, and second, it can be remedied only through a i

significant revision of the plan," Slip opinion at 6. The Appeal Board.

continued:

I With respect to the first factor, whether an essential element element of the plan is involved should be detennined by

. reference to the.16 basic emergency planning standards set forth in 10 C.F.R. I 50.47(b) and the requirements of 10 C.F.R. Part 50, Appendix E.6/ Minor or isolated problems on the day of the exercise do not constitute fundamental flaws in the emergency plan. UCS, 735 F.2d at 1448. Deficiencies that alone .

l would not constitute a fundamental flaw, however, can be considered collectively, provided they are pervasive and show a pattern of related or repeated failures associated with a particular essential element of the plan. If the problem revealed by the exercise is delay -- i.e., a failure to meet the

$/ nder U the Commission's regulations, the emergency response training program is coitsidered part of the emergency plan. See 10 C.F.R. 6 50.47(b) (15); ,id., Part 50, Appendix E, i IV.F.

8904200232 890417 I AI -100 PDR

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time estimates on which the plan is premised -- the delay must-be substantial and thus likely to have affected the protective action . recommendations ' in an actual emergency. Where 'the deficiency is the result of a particular person's failure to follow the requirements of the ~ emergency plan itself, such deficiency is not a fundamental flaw unless that' person performs a critical. role under the-plan and there is no backup-structure or provision'that would mitigate the effects of the. individual's failure.7/

The secolid factor requires consideration of how the failure in the plan, as revealed by the exercise, can be corrected. If the involved portion of the plan itself must be reassessed and preconceived to a significant extent in the order to prevent such a failure in the - future, then. there is a fundamental flaw.

- On the other hand, where the problem can be readily corrected, the flaw cannot reasonably be characterized as fundamental.8/

1/ . In this connection, 'due to the inevitably large number of turnovers in emergency personnel expected during the life of an operating license, undue attention should not be devoted to the performance during the exercise of any one individual.

8,/

In a decision subsequent to .CLI-86-11, the

..Comission commented with seeming approval on another Licensing Board's rejection of exercise contentions that alleged only "' minor, ad hoc, correctable problems.'"

Carolina Power & Liaht Co. (Shearon Harris Nuclear Power Plant), CLI-Bo-24, 24 NRC 769, 777 & n.10 (1986) (emphasis-e added), aff'd sub nom. Eddleman v. NRC, 825 F.2d 46 (4th Cir 1987). Thus, we do not believe that the Comission intended in CLI-8611 to exclude consideration of possible corrective action from the fundamental f1w determination.

Cf. 10 C.F.R. i 50.54(s) (2)(11) (in determining if shutdown of operating reactor is expropriate, Commission will consider action taken to correct deficiencies disclosed in biennial emergency exercises).

The Licensing Board will be judging the emergency response plan and the exercise under these standards set out by the Appeal Board. It would be helpful if the FEMA testimony was developed considering these standards and set out FEMA's factual predicates as well as FEMA's conclusions on (1) whether the exercise revealed a failure of an essential element of the l' emergency response plan and (2) whether such a failure, if it existed.

l could only be remedied through a significant revision of the plan.

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i This testimony should discuss these matters in detail. ,

i Thank you for your assistance in this matter. p Sincerely, u W y

N F b9 @A Edwin J. Reis  !

Deputy Assistant General Counsel for Hearings  ;

1 DISTRIBUTION: j RBachmann .

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