View source for CLI-86-13, NRC Staff Supplementary Brief on Impact of 871029 Rule on CLI-86-13 Remand Proceeding.* ASLB Should Apply Recent Amend to 10CFR50.47(c)(1)(iii) in Accordance W/Stated Views & NRC 871030 Response.Certificate of Svc Encl

{{Adams
| number = ML20236R778
| issue date = 11/17/1987
| title = NRC Staff Supplementary Brief on Impact of 871029 Rule on CLI-86-13 Remand Proceeding.* ASLB Should Apply Recent Amend to 10CFR50.47(c)(1)(iii) in Accordance W/Stated Views & NRC 871030 Response.Certificate of Svc Encl
| author name = Johnson G
| author affiliation = NRC OFFICE OF THE GENERAL COUNSEL (OGC)
| addressee name = 
| addressee affiliation = NRC ATOMIC SAFETY &amp; LICENSING BOARD PANEL (ASLBP)
| docket = 05000322
| license number = 
| contact person = 
| case reference number = CON-#487-4877
| document report number = CLI-86-13, OL-3, NUDOCS 8711240024
| document type = LEGAL TRANSCRIPTS &amp; ORDERS &amp; PLEADINGS, PLEADINGS
| page count = 9
}}

=Text=
{{#Wiki_filter:--
g                                                                                  NOV 171987 6
00CKETED USNRC UNITED STATES OF AMERICA                       -                          -
NUCLEAR REGULATORY COMMISSION                     '87 NOV 19 P3 :46 I
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD [0 i'bi BRANCH fik in the Matter of                          )
                                                )
LONG ISLAND LIGHTING COMPANY              )      Docket No. 50-322-OL-3                                    1
                                                )       (Emergency Planning)                                      '
(Shoreham Nuclear Power Station,          )
Unit 1)                                 )
l NRC STAFF SUPPLEMENTARY BRIEF ON IMPACT OF                                                     l' OCTOBER 29, 1987 RULE ON CLI-86-13 REMAND PROCEEDING I
l
: i. INTRODUCTION The NRC Staff hereby files its supplementary brief on the effect of the recent amendment to 10 C . F. R . Section 50.47(c)(1) on the realism -
proceeding mandated by CLI-86-13, as permitted by the Licensing Board's 1
Order of November 9,1987.
As indicated by the Commission's rulemaking notice, 52 Fed. Reg.
42078 (November 3,1987), "[t]he approach reflected in this rule amplifies                                  ]
and clarifles the guidance provided in the Commission's decision in . . .
CLl-86-13 . . . (t]he rule incorporates the ' realism doctrine', set forth in that decision. . . " id. The Staff summarizes below the manner in which the recent rulemal;ing " amplifies and clarifles the guidance" in CLI-86-13.
However, since the previously filed NRC Staff Response to the Board's Memorandum Requesting the Views of Parties on the Matters to be Decided on the Realism Remand is basically consistent with the approach taken in the rulemaking, extended further discussion of the scope of and issues in the proceeding is not attempted here.
8711240024 871117                                                                                .
PDR   ADOCK 05000322 o                   Pon                                                                       0
                                                                                                     }S

l 1
I j
: 11.       DISCUSSION A. The New Rule An important aspect of the revisions to Section 50.47(c)(1) is the specific incorporation into the regulations of the concepts contained in CLI-83-13,17 NRC 741, 743 (1983) and CLI-86-13, providing for making reasonable assurance                                              findings on emergency planning                    based on   a  i utility-only emergency response plan.                                                      Section 50.47(c)(1)(lii) requires a demonstration that:
the applicant's emergency plan provides reasonable assurance that public health and safety is not endangered by operation of the facility concerned.
To make that finding, the applicant must demonstrate                                                                 )
that, as outlined below, adequate protective measures                                                                !
can and will be taken in the event of an emergency.
A utility plan will be evaluated against the same                                                                     ,
planning standards applicable to a state or local plan,                                                               l as listed in paragraoh (b) of this section, with due                                                                 j allowance made both for --
(A) those elements for which state and/or local                           -
non-participation makes compliance infeasible and                         l 1
(B)    the    utility's           measures       designed     to compensate for any deficiencies resulting from state and/or local non-participation.
in making its determination on the adequacy of a utility plan, the NRC will recognize the reality that in an actual emergency, state and local government officials will exercise their best efforts to protect the health and safety of the public.
The NRC will determine the adequacy of that expected response,                                          in   combination             with       the   utility's compensating measures , on a case-by-case basis, subject to the following guidance. In addressing the circumstance where applicant's inability to comply with the requirements of paragraph (b)                                                          is wholly or substantially the result of non-participation of state and/or local governments, it may be presumed that in the event of an actual radiological emergency state and local officials would generally follow the utility plan.                                         However, this presumption may be rebutted by, for example, a good faith and timely proffer of

i an    adequate     and   feasible    state    and/or local radiological emergency plan that would in fact be relied upon in a radiological emergency.
52 Fed. Reg'. at 42086.
Thus, in a manner consistent with prior Commission decisions in this case, a utility plan may be found adequate, even though compliance with some " elements" of Section 50.47(b) may be " infeasible" due to state and/or local non-participation in planning, provided that "the utility's measures to compensate for any deficiencies" are adequate.
Second, the " realism" doctrine is expressly incorporated into the          l regulations, recognizing "the reality that in an actual emergency, state         I and local officials will exercise their best efforts to protect the health and safety of the public."     Section 50.47(c)(1)(ill),     g. CLI-86-13, 24 NRC at 31.
Third, the rule expressly incorporates the concept that realism requires the assumption that in the absence of an approved state or local plan , a best effort government response "would generally follow the utility plan."    Section 50.47(c)(1)(lii). The rule makes this assumption an evidentiary presumption rebuttable by "a good faith and timely proffer of an adequate and feasible state and/or local" plan that would actually be relied upon in the event of a radiological emergency.                 M. The Commission used the words "may be presumed" and describes this provision in the Statement of Consideration using the terms "may presume. "    52 Fed. Reg. 42082. However, the same Statement states that the rulemaking record supports the proposition that state and local governments will prefer a planned response over an ad hoc response, and instructs licensing boards that they "should not hesitate to reject any

s,-
                                                 *               .           *,s,'
: g. .
1,'            / -
ut.
                                                                                       ; a s. '
                                                                                                '\
J, ts. In an'-                                                           ,
                                                                                                                        ~
findings                                                                                        - -
$rnments                                                   ,
' ss 'best
$                                                                       j , , ..
: 2. -
Ecy ~ plan'                                                                                                    l'' i
                                                                                             - . g<a     .
y 3,   <
              . l{                                                                  .<
              ' s kr[
c.- ( ,
                                                                              . t, . -
sp:cific -                                                                                e
                                                                                              .a i
        ,,     ._      'itg i"                                                       <. I f Staff's :              ,
                                                                         ,4                                  ,
6,4 , , , s;               -                  :
                                                                            ,j
                                                                        .g 4
                                .,   \y-                                                     .t                         g ie rein -                  :
n                          . ,1 .
e.., !
          ' !OO                                                                             'I I.''
                                                                                       = f z.
4 f
a i
                                                     'o.*
                                                               ; :.                                       ,I lt ,,
e.,
                                                                           )j4
                                                                 .,     lh,;
t*
: - x .. -
s' < r 'lp9l*
                                                               ).
                                                     ? ).--)%,.*
g , ;.i..,    ,
                                                      'y' E '                         ,e 9
                                                                                                                            /
k
     /

q 1
I claim" that governments would not .act to safeguard their citizens in an emergency." M.                  The effect of these provisions and rulemaking findings is to presume that the best effort response of state and local governments will be based on the utility pfan unless it can be shown that those best efforts would be based on another acceptable radiological emergency plan which would in fact be implemented in an emergency.
B.              Impact of New Rule on the Realism Remand The views of the Staff on the proper scope for inquiry and specific areas of inquiry on remand                 have been set forth in detail in the Staff's October 30, 1987 filing.               With one exception,     the views stated therein remain valid under the new rule and accompanying Commission explanation of the rule's impact on proceedings 'such as this.                  This is particularly true with respect to the Staff position that " realism" and "best effort" government response imply the good faith use of the plan which already exists, and not improvisation by either the State or County based on
,                                           general rejection of the LILCO Plan.               See, eg, Staff Response at 4, 9, 10.
The new rule and the further interpretation of CLI-86-13 by the Commission remove any possible doubt that the remand is to focus on best effort government implementation of the LILCO Plan, and not on an open-ended inquiry into what the Intervenor governments intend to do in l
l
                                           -1/             As noted below , the Commission has clarified the standard of adequacy to be applied to utility plans, to indicate it contemplates evaluating the utility plan on its own merits, without comparison with other plans, including hypothetical state or local plans. Thus, the discussion in the Staff Response, at 3 (sentence preceding note 2),
is no longer applicable.

T I               an actual emergency.      The presumption in Section 50.47(c)(1)(lii), that
                " state and local officials would generally follow the utility plan" focuses the remand proceeding on the relatively narrow range of questions posited in the prior Staff response relating to State and County implementation of the the LILCO Plan and the interface between LERO and responsible government officials. See Staff Response at 4.
Fu rther ,  the Commission in this rulemaking set out the legal standard to be applied to determine whether a utility-only plan is adequate.
First, the Commission reiterated its discussion from CLI-86-13 that the " root question" to be decided in reviewing a utility-only plan, as with any other plan, is whether the utility plan "can provide for ' adequate protective measures . . . in the event of a radiological emergency.'" But while emphasizing this standard, the Commission also noted its observation in C LI-86-13 that emergency planning requirements do not have fixed criteria, but rather aim at "' reasonable and feasible dose reduction under the circumstances.'"    52 Fed. Reg. 42080. Moreover, the Commission also recognized that "no utility plan is likely to be able to provide the same degree of public protection that would obtain under ideal conditions, i.e.
a state or local plan with full state and local participation . . . but that
[it] may be nevertheless be adequate."          Id. at 42082; see also id, at 42084. As a result, the standard employed in the new rule looks to a determination of adequacy of a utility plan under the same general standard applicable to State or local plans , but with "due allowance" l
l               for those elements of the planning standards for which government non-participation    makes   compliance   " infeasible"  and    for  the  utility's

t treasures designed to compensate for deficiencies resulting from such-non-participation.                          Section 50.47(c)(1)(lii); 52 Fed. Reg. 42082, 42084.
Similariy, the adequacy of a utility plan is not to be evaluated by comparing dose reductions, or exploration of "possible lesser dose savings . . ."                            As the Commission Statement of Consideration states:
We do not read that decision as requiring a finding of the precise dose reductions that would be accom-plished either by the utility's                              plan or by a hypothetical plan that had full state and local participation: such findings are never a requirement in the evaluation of emergency plans. The final rule makes clear that every emergency plan is to be evaluated for adequacy on its own merits, without reference to the specific dose reductions which might be accomplished under the plan or to the capabilities of any other plan.                          It further makes clear that a finding of adequacy for any plan is to be considered generally comparable to a finding of adequacy for any other plan.
52 Fed. Reg. at 42084.                            See also 52 Fed. Reg. at 42085; cf. CLi-86-13,                                                ,
i 24 NRC 30-31.
Thus, the Commission has provided that the evaluation of the                                                                            .
utility-only plan for adequacy is to be on the plan's own merits ,
assuming a best effort government response using the utility plan, or some other adequate and feasible radiological emergency plan that would                                                                         l actually be relled upon in an emergency.                                Section 50.47(c)(1)(lii). -
The finding of adequacy, however, on such a plan "is to be considered generally comparable to a finding of adequacy for any other plan."                                                       52 Fed. Reg. at 42084.
2/
                              ~
It is noted that the submission of this other plan is to be "a good faith and timely proffer of an adequate and feasible state and/or local radiological emergency plan that would in fact be relied upon in a radiological emergency." 10 C.F.R. 50.47(c)(1)(lii).
i h__._________...__._.__-_____              __ . _ _ _ _ _ _ _ . . _ _ .                                      _ _ _ _ _ . _ _
                                                                                                                             ..__._.______._________._.m___.m.____.__.____j

                                                                                                                                     = _ = _ - _ _ _ - _ - _
l
[_ ^
1 l
As a result, on remand of CLI-86-13, the adequacy of the LILCO-Plan does not rest on either a fixed level of dose saving, or a finding of.
comparability with other integrated plans, or a hypothetical New York State-Suffolk County plan .                                         Rather the Plan's adequacy should - be determined on its own merits,. but must be found to . provide a level of                                                         j adequacy generally comparable to the level of adequacy required for any other plan.
111. CONCLUSION The                               Licensing        Board    should  apply    the recent  amendment  to 10 C.F.R. Section 50.li7(c)(1)(lii) in accordance w!th the views set out above and in the October 30, 1987 Staff Response.
Respectfully submitted, pQ' George   . Jo son Counsel for NRC Staff Dated at Bethesda, Maryland this 17th day of November,1987 1

c                                                                                     DOLKEIQ U5NRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION              '87 NOV 19 P3 :46 BEFORE THE ATOMIC SAFETY AND LICENSING BO[kk1ftbbb i BRANCH in the Matter of                         )
                                                                 )
LONG ISLAND LIGHTING COMPANY             )       Docket No. 50-32 2-O L-3
                                                                 )        (Emergency Planning)
(Shoreham Nuclear Power Station,         )
Unit 1)                              )
CERTIFICATE OF SERVICE l                       l hereby certify that copies of "NRC STAFF SUPPLEMENTARY BRIEF ON i                       IMPACT OF OCTOBER 29, 1987 RULE ON CLI-86-13 REWARD PROCEEDING" i                       in the above-captioned proceeding      have been served on the following l                       by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system , or as indicated by double asterisks, by express mail, this 17th day of November,1987.
James P. Gleason, Chairman
* Joel Blau, Esq.
Administrative Judge                       Director, Utility intervention Atomic Safety and Licensing Board          Suite 1020 U.S. Nuclear Regulatory Commission         99 Washington Avenue Washington, DC 20555                       Albany, NY 12210 Jerry R. Kline*                            Fabian G. Palomino, Esq.**
Administrative Judge                       Special Counsel to the Governor Atomic Safety and Licensing Board          Executive Chamber U.S. Nuclear Regulatory Commission         State Capitol Washington, DC 20555                       Albany, NY 12224 Frederick J. Shon*                         Jonathan D. Feinberg, Esq.
Administrative Judge                       New York State Department of Atomic Safety and Licensing Board            Public Service U.S. Nuclear Regulatory Commission         Three Empire State Plaza Washington, DC 20555                       Albany, NY 12223 Philip McIntire                            W. Taylor Reveley lli, Esq.
Federal Emergency Management               Donald P. Irwin, Esq.**
Agency                                 Hunton s Williams 26 Federal Plaza                           707 East Main Street Room 1349                                  P.O. Box 1535 New York, NY 10278                         Richmond, VA 23212 Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771

\                                                                                                                                                       ,
c Stephen B. Latham, Esq.                            Herbert H. Brown, Esq.
Twomey, Latham & Shea                               Lawrence Coe Lanpher, Esq.**
Attorneys at Law                                  Karla J. Letsche, Esq.
f                                         33 West Second Street                             Kirkpatrick ' & Lockhart Riverhead, NY 11901                              South Lobby - 9th Floor 1800 M Street, NW Atomic Safety and Licensing                      Washington, DC 20036-5891 Board Panel
* U.S. Nuclear Regulatory Commission               Jay Dunkleberger Washington, DC. 20555                             New York State Energy Office Atomic Safety and Licensing                      Agency Building 2 Appeal Board Panel
* Empire State Plaza U.S. Nuclear Regulatory Commission              Albany, NY 12223 Washington, DC 20555 Spence W. Perry, Esq.
Martin Bradley Ashare, Esq.                      General Counsel l                                           Suffolk County Attorney                          Federal Emergency Management H. Lee Dennison Building                          Agency Veteran's Memorial Highway                        500 C Street, SW Hauppauge, NY 11788                           Washington, DC 20472 Dr. Monroe Schneider .                          Robert Abrams, Esq.
North Shore Committee                           Attorney General of the State P.O. Box 231                                      of New York                                               '
Wading River, NY 11792                          Attn: Peter Blenstock, Esq.                                   ;
Department of Law                                           )
Ms. Nora Bredes                                 State of New York                                             j Shoreham Opponents Coalition                    Two World Trade Center 195 East Main Street                          Room 46-14                                                   '
Smithtown, NY 11787                             New York, NY 10047 Anthony F. Earley, Jr.                          William R. Cumming, Esq.
General Counsel                                Office of General Counsel Long Island Lighting Company                  Federal Emergency Management 175. East Old Country Road                      Agency Hicksville, NY 11801                           500 C Street, SW                                              )
Washington, DC 20472                                          ;
Dr. Robert Hoffman                                                                                          i Long Island Coalition for Safe                Docketing and Service Section*
l                                                              Living                        Office of the Secretary P.O. Box 1355                                  U.S. Nuclear Regulatory Commission Massapequa, NY 11758                           Washington, DC 20555 l                                             Mary M. Gundrum, Esq.                          Barbara Newman New York State Department of Law              Director,- Environmental Health 120 Broadway                                  Coalltion for Safe Living 3rd Floor, Room 3-116                          Box 944' New York, NY 10271                            Huntington, New York 11743 i
(                         f 5
orge 52 Jo                          on l                                                                                             Counsel for                         C Staff 1
_ _ - - - _ _ _ _ _ - _ _ _ _ _ - - _ - _ _ _ _ _ _ _ - _                      _.                                                    _   ._. _ - _}}