ML20215L205

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Responds to to NRC Requesting That FEMA Conduct Public Meeting Re FEMA Assessment of 861213 Emergency Planning Exercise.Commission Addressed Similar Response in 860606 Memorandum & Order
ML20215L205
Person / Time
Site: 05000000, Shoreham
Issue date: 06/16/1986
From: Malsch M
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To: Damato A
SENATE
Shared Package
ML20213F109 List:
References
NUDOCS 8706250594
Download: ML20215L205 (1)
v • d • e


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, 'I h, UNITED STATES

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  • 3 8 WA$HING TON, D. C. 20555 o i

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JUN 16 Ei

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i lj The Honorable Alfonse D'Amato 3 United States Senate j

Washington, DC 20510 i ,

Dear Senator.D',

Amato. y The Commission has asked me to reply to your letter of June 4, 1986 requesting the Commission to ask the Federal Emergency Management Agency (FEMA) to conduct a'public meeting on FEMA's ,

assessment of.the February 13, 1986 emergency planning exercise .

for the Shoreham Nuclear Power Plant.

,1' FEMA has said that its regulations do not require such a public meeting, and the Commission does not believe that it should .

second-guess FEMA on what FEMA's own regulations mean.- However, the Commission has ordered a publi'c hearing on the exercise '

results in which the principal interested parties, including the i

State of New York and Suffolk County, can participate. The State I of New York, Suffolk County, and the Town of'Southampton 'j submitted a request similar to yours to the Commission on June 3.,

and the Commiecion addressed this request in a Memorandum and Order of June 6, 1986. A copy is enclosed for your information.

I hope that this letter responds adequately to your concerns. -l

! Respectfully, m .

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Adc /rd (,  ;

i Martin G. Malsch .i ;

Acting General Counsel

Enclosure:

Memorandum and i Order dtd. 6/6/86 -

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ~

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l COMMISSIONERS: U '

.i i Nunzio J. Palladino, Chairman W Thomas M. Roberts James K. Asselstine hQ 8E@'c%pj, oc

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'w ]1 1 Frederick M. Bernthal -!

Lando W. Zech, Jr. .

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LONG ISLAND LIGHTING COMPANY ) ~{

) Occket No. 50-322 OL-3 m (Shoreham Nuclear Power Station, .dl

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l MEMORANDUM AND ORDER 4 )

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. j Now penditg before us in the She'reham emergency planning-adjudication l

', are three related matters: (1[petitionsforreviewofALAB-832,aMarch26, 1986 Appeal Board decision reversing'and remhnding ori a number of issues, but. l 1

l- directing the Licensing Board to delay r'emand prdceedings; (2)' motions from ai 1

LILCO and Intervenors concerning litigation of emergency planning exercise. a results; and (3) petitions for review of" ALAB-818' - ,.

In sum, we direct continued deferral of the ALAB-832 remand, and imediate initiation of the exercise hearing to consider evidence which -'l Intervenors might wish to offer to show that there is a fundamental flaw in '

1 the LILCO emergency plan. Further, the Comission is now reviewing ALAG-818, and expects to issue shortly a decision on the realism and immateriality- ) ,

i issues.

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I. ALAB-832 The Appeal Board in ALAB-832 reversed and remanded to the Licensing ,

Board on a number of issues, but directed the Licensing Board to hold the

  • f remand in abeyance until the Commission provided instructions. No party has 1

requested initiation of the remand pending Comission review of ALAB-832, and thus we direct the Licensing Board to continue to defer the remand proceedings until further order of the Commission. Pending petitions for '

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review of ALAB-832 will be addressed by the Commission in the near future.  ;

If the Comission decides that further hearings are required on any of the i

issues considered in ALAB-832, the Comission will so direct the Licensing l Board. . .

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l II. Motions Concerning Litigation

  • l of Emergency Planning Exercise Results j In a motion dated March 7,1986, Suffolk County, New York State, and the ,

Town of Southampton (the Governments or Intervenors) asked the Comission to  ;

advise the parties to this proceeding of their procedural responsibilities concerning further hearings on emergency planning issues. Intervenors ask .

I' the Comission to make clear: (1)thatthereshouldbenoproceedingsonthe results of the February 13, 1986 Shoreha,m emergency exercise until after FEMA issues its evaluation of the exercise; (2) that the filing of contentions on the exercise should await the issuance of FEMA's report; and (3) that because H the Shoreham Licensing and Appeal Boards have upheld the Governments' 1

position by denying LILCO's application for an operating license on the ' , I ground that LILC0's emergency plan is fatally defective, the burden is upon I d

LILCO, and not the Governments, to initiate further proceedings.

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In a pleading. of March 13, 1986, LILCO, opposed the first two arguments by Intervenors, and further submitted its own motion requesting the Comission to imediately apooint a Licensing Board to conduct proceedings'en  !

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the exercise, preferably the Board which previously heard Shoreham emergency planhirrg issues. Further, LILCO asks the Comission to instruct the Board: l

  • -- to admit only contentions which could not have been litigated at l some earlier time, and which, as pleaded, do not demonstrate that the Shoreham plan is fundamentally flawed.1 I

l -- to conduct an expedited proceeding. ,

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-- to schedule an immediate Prehearing Conference whose pur;iose will

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be to determine schedules for the filing of all contentions other-than those which'must await'the issuance of the FEMA rep rt, and to determine schedules f,or discovery requests.

. -- to pennit the filing of a secon'd round of' contentions which could not have been filed prior to issuance of the FEMA report, along with a corresponding second round of discovery. .

l I In support of this standard, LILCO cites both'the O.C. Circuit's decision in Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. '

1984), cert, denied, 105 5. Ct. 815 (1985), and a Licensing Board decision in Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant), LBP-B5-49,-

22 NRC 899 (1985).

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. -- to bar discovery against FEMA personnel prior to the issuance of FEMA's exercise report so as to expedite the preparation of FEMA's' 1 report on the exercise. l t ,

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l- On March 24, 1986, the NRC~ Staff responded both to' thi. Governments  :

l- motion'and to LILCO's motion, in substance opposing the fomer and supporting i the latter. The Governments also submitted their response to LILCO's motion

. on March 24. While not objecting to the appointment of a Licensing Board,

the Governments largely object to the other proposals on the, ground that they are departures from the Comission's rules. We now address the proposals and i

the objections to them.

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Since the motions and responses were filed, FEMA has issued'its report, i

thusmootingsomeoftherequests..Wethusaddressonlytheremaihing 4

questions. "

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(1) The proposal to use " threshold pleading" and sumary disposition '

prior to discovery to exclude contentions which do not demonstrate,
as pleaded, a fundame'ntal defect in the emergency plan. -

The Governments assert that this suggestion is' defective on three counts: first, that the Comission's contention pleading regelations require ,

adequate specificity and basis, and the use of the fundamental flaw criterion ,

is a departure from the regulations that can be implemented only by I

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rulemaking; second, that by this proposal LILCO is allegedly attempting to require merits decisions at the contention pleading stage, contrary to '

settled Comission precedent; and third, that the use of sumary disposition prior to discovery is legally unsupported, based on an erroneous Licensing }

Board reading of UCS v. NRC, supra,' note 1.

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3 We disagree with the proposition that restriction of any amergency j planning exercise hearings requested by Intervenors to " fundamental flaws"

,' requires rulemaking or is otherwise inappropriate. In the preamble to the 3

.;q rule reviewed by the UCS court, and in our rule change responding to the court's decision, we emphasized the predictive nature of emergency planning s

/) 1 findings. See 47 Fed. Reg. 30232 (July 13,1962); 50 Fed. Reg.19323(May8, j

, 1985). The Court never questioned this concept. The Cor-t s1so ^ observed ,

- thit there was nothing to prevent the Commission from excluding from exercise i litigation any issue which was not material to licensing, de31sions. See

[i I 735 F.2d at 1447-48. Under our regulatiers and practice, staff review of j

I exercise results is consistent with the predictive nature of emergency 7 planning, and is restricted to detennining if the exercise revealed any deficiencies which preclude a finding of reasonable assurance that protective i

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measures can and will be taken, i.e., fundamental fliws in the' plap. Since j only fundamental flaws are material licensing issues, the hearing may be j

restricted to those issues. ,

However, we agree with IntervenYrs' second point', that t'ne wording of ]

LILCO's proposal to exclude contentions which do not ' demonstrate fundamental l

, flaws in the emergency plan, has the potential to require premature evidentiary decisions. We remedy that possible defect by directing the Board I

to admit only those Intervenor contentions which satisfy the specificity and l other requirements of 10 CFR 2.714 by 1) pleading that the exercise i demonstrated fundamental flaws in LILCO's plan, and 2) by providing bases'for the contentions which, if shown to be true, would demonstrate a fundamental flaw in the plan. ]

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Intervenors'_ third point is that sumary disposition prior to discovery j is legally defective. Our rules provide that summary disposition motions may

[ be filed "within such time as may be fixed by the presiding officer." 10 CFR hl 2.70(a). The rules further provide that if essential facts are not *

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l available for response to the motion, the Board may deny it or make such i  !

J other order as is appropriate. 10 C.F.R. 2.749(c). Thus, Intervenors are not necessarily entitled to discovery to oppose sumary disposition of their .j contentions. First, they must convince the Board that discovery _is necessary q 5

and likely to produce evidence supporting the existence of a genuine issue of '

.I material fact. These rules should be adequate for this proceeding. ' I I

(2) Other LILCO Proposals .

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LILCO also proposes that the exercise proceeding be conducted by the Board which previously heard Shoreham emergency planning issues. ,We direct I the Chairman of the Atomic Safety and Licensing Board Panel to reappoint the
members'of the earlier Board if. they are available. Further, the' Board is to 4 l

expedite the hearing to the maximum'vxtent consistent with fairness to the l parties, and to issue its decision upon ~the completion J the proceeding.2-i 2

, The Board and the parties should keep in mind that the Comission's forthcoming decision on ALAB-81B may obviate the need for a hearing on the a exercise results, or it might mandate more extensive evidentiary hearings.  :

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III. Review mf ALA8-818 ,

( As noted above, we previously deferred review of ALAB-818. We now plan .. l t

to proceed initially with review of the so-called " realism" and d. :  !

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" immateriality" issues in ALAB-818. We will take up the legal authority and .

U preemption issues at some future date. The parties have already submitted -I

. extensive papers on the " realism" and " immateriality" issues addressed in ALAB-818, and we see no need for further written briefs. -

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. . . d IV. Intervenors' Motion of June 3, 1986 l i*

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The June 3,1986 Suffolk County, State of New York, and Town of Southampton Supplement to Motien for NRC to Establish Post-Exerc~ise j l Procedures is denied. The motion asks NRC to find that FEMA's review of the l

_ l February 13 exercise violated FEMA's procedoral rules requiring a public t meeting. The Commission defers to FEMA's interpretation of its own  !

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. procedural rules. We perceive'no harm -

to Intervenors from this denial of- -]

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their motion, as The issues raised by the ' exercise will be aired in the adjudication we initiate today. ,

1-Commissioner Asselstine approved in part and disapproved in part. His ,

l separate views are attached.

! It is so ORDERED.

For the Commission -

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SAMUEL >MLK ll , x 3

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Dated at Washington, D.C. .

this day of June, 1986 1

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SEPARATE VIEWS OF COMMISSIONER ASSELSTINE

. I agree with that portion of this order which directs the initiation.of a hearing on the results of the exercise of the emergency plan for. ,

1 Shoreham. I also agree with the decision to continue to defer review of.

the issues in ALAB-832. .However, I do not agree w!? the procedural guidance provided to the Licensing Board in this order. I see no reason l 3 to set any pleading requirements beyond those already existing in the '

Commission's regulations.

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