ML20151A624
| ML20151A624 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/11/1988 |
| From: | Matt Young NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#388-6736 OL-3, NUDOCS 8807200064 | |
| Download: ML20151A624 (9) | |
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NUCLEAR REGULATORY COMMISSION
+88 J l.18 P3 :28-BEFORE THE' ATOMIC SAFETY AND LICENSING APPEAL BOARD j~0bfk' j j't
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In the Matter of
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-Docket No. 50-322-OL-3 3(Shoreham Nuclear Power Station,
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ST AFF REPLY TO JUNE 27, 1988 APPEAL BOARD ORDER I
Mitzi A. Young Counsel for NRC Staff July 11,1988 88072006488 Mob 22 PDR A OCK PDR
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UNITED STATES OF AMERICA 0
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-BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL B0dRD In the Matter of:
LONG ISLAND-LIGHTING COMPANY Docket No. 50-322-01.-3 A
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(Emergency Planning)
(Shoreham Nuclear Power Station,
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.a Unit 1)
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ST A FF REPLY TO JUh'E 27, 1988 APPEAL BOARD ORDER Mitzi A. Young C ou nsel for NRC Staff July 11,1988
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD r.
In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3 (Shoreham Nuclear Power Statior,,
Unit 1)
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STAFF REPLY-TO JUNE 27, 1988 APPEAL BOARD ORDER in an Order dated Jur,e 27, 1988, the Appeal Board requested -the parties' views on whether, in light of the June 1988 exercise of the Shoreham emergency plan, the partial initial decisions concerning the February 1986 exercise I/ should be vacated and the related appeals disniisstd as moot.
Order at 3.
The Staff hereby provides its response.
The Staff does not take a position on whether the licensing of Shoreham should proceed based on the results of the June 1988 exercise or on the basis cf the February 1986 as confirmed, and/or rectified, by the 1988 exercise.
In either case, resolution nf the fundamental legal issues cn appeal is essential.
In a Memorandum of May 25,1988 (at 1), this Board stated that it would review matters involving the scope of the 1/
LBP-87-32, 26 NRC 479 (1987); LBP-88-2, 27 NPC 85 (1988).
These proceedings were conducted in response to the Commission's direction in CLI-86-11, 23 NRC 577, 579 (1986), that an exercise hearing be conducted to consider evidence offered to show a fundamental flaw in the LILCO emergency plan.
The Conmission defined fundamental flaws as "any deficiencies [ revealed by an exercise] which would preclude a finding of reasonable assurance that protective measures can and will be taken."
Id. at 581.
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Shoreham emergency planning exercise, although the appeal was technically moot, because the disposition of the appeal "may well be relevant" to future conduct.
Similarly, here we believe the Appeal Board should continue its review of the appeals stemming from the 1986 exercise as the matters are relevant to future conduct and the standards to be applied in j>tdging the 1988 exercise.
The two decisions on appeal raise fundamental questions regarding the appropriate legal standard to be applied in evaluating the scope of an exercise and the appropriate definition of a fundamental flaw.
These legal issues are at the heart of any evaluation of emergency plans and an authoritative decision by the Appeal Board which illuminates these questions will have a pervasive effect on this and other emergency planning litigation.
In LBP-87-32, the Licensing Board found that the scope of exercise of the Shoreham offsite plan was too limited and therefore failed to meet the requirements of 10 C.F.R. Part 50, Appendix E, QIV.F.1.
26 NRC at 501-502.
Even though NRC and FEMA guidance documents suggested the contrary, the Board found that initial exercises under section IV.F.1. are required to be more comprehensive in scope than subsequent exercises.
Ld.at488-89.
Based upon the language in section IV.F.1 providing for an initial exercise "which tests as much of the licensee, State and local emergency plans as is reasonably achievable without mandatory public participation," the Board reasoned that scope of an exercise of an emergency plan is adequate only if it tests all portions of the plan which were "reasonably achievable."
Ld. at 485, 492, 497-99, 501.
Therefore the scope of the exercise was inadequate because it excluded testing of
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four planning areas which could have been "reasoriably achieved."
Id. at 501-02.
The Board never addressed, however, the crucial question of whether the scope of the exercise was so fundamentally flawed so as to prevent a reasonable assurance finding under 10 C.F.R. 6 50.47.
Although the Appeal Board's May 25, 1988 Memorandum provides guidance on the proper scope of an exercise, such guidance was in the form of "tentative conclusions" to be followed by the Appeal Board's opinion on the merit 3.
It is not clear what the status of such guidance would be if the Appeal Roard's opinion on the merits were not issued.
In LBP-88-2, the Board reasoned that minor or ad hoc problerns did not constitute fundamental flaws, but a FEMA deficiency is equivalent to a fundamental flaw.
27 NRC at 92-93.
Thus, the Board found that each deficiency iaentified by FEMA was a fundamental flaw.
There is little doubt that lit'gation of the 1988 exercise will again center on issues of adequate scope and on what constitutes "a fundamental flaw."
Thus rssolution of the basic legal issues of the proper scope of the exercise to satisfy the requirements of the Comission's regulations and of the legal characteristics of "a fundarrental flaw" is required to evaluate the results of either the 1986 or 1928 exercise.
If no contentions are filed concerning the 1988 exercise and there is no controversy concerning the adequacy of the 1988 exercise, questions raised in connection with the 1986 exercise would indeed be moot.
The litigious history of this case, however, makes that possibility highly unlikely.
The proper interpretation of the fundarrental flaw standard and the required scope of an initial exercise are issues which warrant appellate interpretation since they will impact this and other emergency planning
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litigation.
The Appeal' Board should decide these issues now so that any controversy surrounding the Shoreham exercise, wheth'er in-February 1986 or June 1988, will be. evaluated according to a proper interpretation of t
the relevant legal standards.
Respectfully submitted, W
Mitz A. Young
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Counsel for NRC Staff Dated at Rockvillo, Maryland this lith day of July, 1988 o
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00LKEiE0 USNFC UNITED ST ATES OF AMERIC A NU CLE AR REGUL ATORY C OMMISSION
,g g jg p3 gg B EFO R E T H E A T OMIC S A FE T Y ~ A N D LIC E NSIN G B O A R&FICC CF lt.ri.iAd f 00CKHN k 'D'VICL BRANO-in the Matter of LO N G ISL A i1D LIG H TIN G C OMP A N Y Docket No. 50-322- 0 L -3 (Shoreham Nuclear Power Station,
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Unit 1)
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CERTIFIC ATE OF SERVICE I
hereby certify that copies of "STAFF REPLY TO JUNE 27, 1988 APPE AL B O A R D O R DER" in the above-captioned proceeding have been served on the following by deposit in the U nite d States m ail, first class or, as indicated by an a steris k, throu g h deposit in the Nuclear. Regulatory Commission's internal mail system, this lith day of July 1988.
James P. Gleason, Chairman
- Jerry R. Kline*
Administrative dudge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D C 20555 Washington, D C 20555 Frederick J. Shon**
Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Public Service Board Three Empire State Plaza U.S. Nuclear Regulatory Commicsion Albany, N Y 12223 Washington, D C 20555 Joel Blau, Esq.
Fabian G. Palomino, Esq.*
' Director, Utility Intervention Special Counsel to the Governor Suite 1020 Executive Chamber 99 Washington Avenue State Capitol Albany, N Y 12210 Albany, N Y 12224
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2 Philip McIntire W. Taylor Reveley III, Esq.
- Federal Emergency Management Donald P. Irwin, Esq.*
Agency Hunton & Williams 26 Federal Plaza 707 East Main Street
= Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, V A 23212 Stephen B. Latham, Esq.
Herbert H. Brown, Esq.
Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.*
Attorneys at Law Karla J. Letsche, Esq.
33 West Second Street Kirkpatrick & Lockhart Riverhead, N Y 11901 South Lobby - 9th Floor 1800 M Street, N W Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, D C 20555 New York State Energy Office Agency Building 2
- Atomic Safety and Licensing Empire State Plaza A ppeal Board Panel
- Albany, N Y 12223 U.S. Nuclear Regulatory Commission Washington, D C 20555 Spence W. Perry, Esq.
Martin Bradley A share, Esq.
General Counsel Suffolk County Attorney Federal Emergen.y Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge NY 11788 Washington, D C 20472 A nthony F. Earley, Jr.
Alfred L. Nardelli, Esq.
New York' State Department of Law General Counsel 120 Broadway Long Island Light Company Room 3-118 175 East Old Country Road New York, N Y 10271 Hicksville, N Y 11801 Dr. Monroe Schneider Ms. Nora Bredes North Shore Committee Shoreham Opponents Coalition P.O. Box 231 195 East Main Street Wading River, N Y 11792 Smithtown, N Y 11787 Willia m R. C u m min g, E s q.
Barbara Newman Office of General Counsel Director, Environmental Health Federal Emergency Management Agency Coalition for Safe Living 500 C Street, SW Box 944 Washington, D C 20472 Huntington, New York 11743 e
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Dr. Robert Hoffman Docketing and Service Section*
Long Island Coalition for Safe Office of the Secretary Living Lt.S. Nuclear Regulatory Commission P.O. Box 1355 Washington, D C 20555 Massapequa, NY 11758 5 Falc n c >a--
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