ML20082H760
| ML20082H760 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/28/1983 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL-3, NUDOCS 8312010277 | |
| Download: ML20082H760 (34) | |
Text
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f1 LI'LCO', November 28,'-1983 fE0 Y
l$' gg UNITED STATES OF AMER'ICA . 3 NUCLEAR REGULATORY COMMISSION -
Before the Atomic Safety and Licensing Board In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning (Shoreham Nuclear Power ) Proceeding)
Station, Unit 1) )
LILCO'S MOTION TO STRIKE THE TESTIMONY OF FRED C. FINLAYSON, GREGORY C. MINOR AND EDWARD P. RADFORD ON BEHALF OF SUFFOLK COUNTY REGARDING CONTENTIONS 65, 23.D AND 23.H The Long Island Lighting Company (LILCO) hereby moves the Board to strike in its entirety Suffolk County's written testimony on the consequences of an accident at the Shoreham Station. This testimony is entitled " Testimony of Fred C.
Finlayson, Gregory C. Minor and Edward P. Radford on Behalf of Suffolk County Regarding Contentions 65, 23.D and 23.H." (We will refer to it as "the Finlayson testimony" for short.)
The bases for striking it are (1) it is irrelevant to the issues in this proceeding and (2) it is a challenge to the NRC regulations. In addition, a part of it appears to take issue with LILCO's method for making protective action e
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recommendations and thus falls squarely within the " Phase I" issues that the intervenors are precluded from litigating by order of the previous Board.
Under the NRC's rules of practice, testimony must be relevant to the issues in contention. 10 C.F.R. $ 2.743(c)
(1983).1/ And irrelevant testimony is the proper subject of a motion to strike. See 10 C.F.R. Part 2, Appendix A, V(d)(7)
(1983). The Board has the power to implement these provisions, both through its general power to regulate the conduct of a hearing, 10 C.F.R. $ 2.718, and through the specific authority under 10 C.F.R. $ 2.757(b) to strike argumentative, repeti-tious, cumulative, or relevant evidence.
The Finlayson testimony makes essentially four points, two of them in connection with Contention 65 and two in connec-tion with Contention 23. The four points (two of which, inci-dentally, appear to be functionally identical) are capsulized by the following propositions (which are LILCO's words, not Dr.
l Finlayson's):
4.
1/ Title 10 C.F.R. $ 2.743(c) provides:
Only relevant, material, and reliable evi-dence which is not unduly repetitious will l
J be admitted. Immaterial or irrelevant l parts of an admissible document will be I
' segregated and excluded so far as is prac-l ticable.
I t
i i
Contention 65
- 1. Assuming that evacuees get stuck in traffic as PRC Voorhees predicts, it is possible for them to get overtaken by the radioactive plume and receive serious doses of radiation.
- 2. If actual evacuation times are longer than the calculated ones used for making protective action recommenda-tions, then the wrong protective ac-tion may be chosen and people will receive larger doses of radiation than anticipated.
Contentions 23.D and H
- 3. If people from inside the EPZ get stuck in traffic because of evacuees from outside the EPZ, they may get overtaken by the plume and receive
" health-threatening radiation doses."
- 4. If people outside the EPZ to the east evacuate without being advised to and enter the EPZ, they may be exposed to the radioactive plume.
All three of these statements are utterly irrelevant -- not necessarily irrelevant to emergency planning, but irrelevant to the issue in this proceeding, which is whether NRC regulations are met. At the same time, because they are relevant only to a legal theory of NRC licensing that is at odds with NRC regula-tions and policy, they are a challenge to the NRC regulations.
As this Board noted in its Special Prehearing Conference Order:
NRC rules and regulations are not subject to challenge or attack in adjudicatory proceedings absent a Commission determi-nation to waive this requirement. 10 CFR
$ 2.758.
-Special-Prehearing Conference Order 9 (August 19, 1983).
The definition of " relevant evidence" from. Rule 401 of the Federal Rules of Evidence is as follows:
Rule 401. Definition of " Relevant Evidence"
" Relevant evidence" means evidence having any tendency to make the existence of any fact that is of. consequence to the deter-mination of the action more probable or less nrobable than it would be without the evidence.
It is the "of consequence to the determination of the' action" part that is missing here. The issue of this proceeding is whether the offsite emergency plan complies with NRC regula-tions. And it is fair to say that the Finlayson testimony cheds no light whatsoever on the question of compliance with NRC regulations.
The Finlayson testimony presents calculations of the probabilities of receiving various doses of radiation. These numbers, even if correct, do not tend to prove compliance or noncompliance with NRC regulations, and it is not just that they fail to show noncompliance in this particular case. It is rather that this type of analysis is incapable by its very nature of showing either compliance or noncompliance. This is a fundamental point, and one we shall undoubtedly have to argue again in connection with some of the " Group II" contentions:
the NRC emergency planning regulations 2/ simply cannot be met 2/ The Commission's licensing regulations are " essentially deterministic," 48 Fed. Reg. at 10,775 col. 2 (Mar. 14, 1983),
not probabilistic.
or not met by calculating the probabilities of receiving specified doses.
Part I below addresses the two points made by the Finlayson testimony with respect to Contention 65, and part II the two points with respect to Contention 23.
I. Contention 65: The Finlayson Testimony Adds Nothing Relevant to the Evidence on Evacuation Time Estimates We will first address the Finlayson testimony as it re-lates to Contention 65 on evacuation time estimates. The tes-timony attempts to establish propositions "1" and "2" above, both of which are irrelevant to the issues in this case. The first proposition is that it is possible to receive a serious dose of radiation despite the emergency plan.
A. It is possible to receive doses of radiation in an evacuation l
l This first proposition is the most fundamentally at I odds with NRC regulations. It is that (assuming that a serious i
accident occurs and that the the PRC Voorhees evacuation time I estimates are correct) there are certain probabilities (x) that a certain number of people will receive certain doses of radia-l i tion (y) during an evacuation. The precise words of the con-tention are those underlined below:
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Contention 65:
[U]nder the LILCO Plan an evacuation may be ordered which realistically cannot
.be completed prior to release and disper-sion of fission products from the Shore-ham plant. Evacuees will be caught in queues or delayed in heavily congested traffic within the EPZ. Under many acci-
! dent conditions, there will be a dispersal of radioactive materials while such traffic conditions still exist, resulting in unacceptable health-threatening exposure to the evacuees.
The automobiles of the evacuees will offer essentially no protection from the plume. (Emphasis supplied.)
Finlayson testimony 3.3/ Another way of stating the proposi-tion is that even with an emergency plan in place it is possi-ble for people to receive health-threatening doses of radiation if a worst-case accident occurs at Shoreham. The testimony puts it like this:
Thus, this testimony discusses the radia-tion doses and adverse health consequenc-es to which evacuees will be subject if they are stranded in traffic in the EPZ, and the resulting inadequacy of evacua-tion as a protective action under many accident scenarios if voluntary evacua-tion, and the resulting evacuation times, ,
were properly taken into account.
Finlayson testimony 5.
3/ The County's underlying assumption is that a given protec-tive action is legally inadequate if under any circumstances it may fail to prevent " unacceptable health-threatening" radiation exposure. This assumption is at odds with NRC regulations.
'However you state it, the proposition, even if true, is irrelevant. Probably everyone would agree that it is possible to have an accident at a nuclear power plant that will produce a radioactive plume such that if a person stays in that plume long enough he will receive a serious dose of radiation. This is true of just about any nuclear plant. Indeed it is the
" underlying assumption" of the NRC emergency planning regula-tions that people may be exposed to dangerous levels of radia-tion:
The underlying assumption of the NRC's emergency planning regulations in 10 CFR.550.47 is that, despite applica-tion of stringent safety measures, a se-rious nuclear accident may occur. This presumes that offsite individuals may be-come contaminated with radioactive mate-rial or may be exposed to dangerous lev-els of radiation or perhaps both.
Planning for emergencies is required as a prudent risk reduction measure for these individuals. Since a range of accidents with widely differing offsite consequenc-es can be postulated, the regulation does not depend on the assumption that a par-ticular type of accident may or will occur. In fact, no specific accident se-quences should be specified because each accident could have different consequenc-es both in nature and degree. Although the emergency planning basis is indepen-dent of specific accident sequences, a number of accident descriptions were con-sidered in development of the Commis-sion's regulations, including the core melt accident release categories of the Reactor Safety Study (WASH 1400).
Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), CLI-83-10, 17 NRC 528, 533 (1983) (foot-note omitted).
The Commission presumes as does FEMA that offsite individuals in the EPZ may, as a result of a nuclear plant accident, either become externally contaminated with radioactive mat
- rials or become ex-posed to dangerous 2evels of radiation, or both.
Id. 534-35. That is the reason emergency plans are required to identify medical facilities capable of treating people for ra-diation exposure. Id. 537. There would be no need for such a requirement if the regulation required zero risk of exposure.
The County's theory is that if even with an emergency plan it is still possible (with probability x) for people to receive serious doses of radiation (y), then the emergency plan is inadequate and does not meet NRC regulations.4/ It is clear that this is the County's position. It is equally clear that the position has nothing to do with meeting NRC regulations.
Here are four reasons why:
4/ Clearly the County believes that the risks for Shoreham are too high, but the County does not say how much lower they would have to be to be acceptable. The County does not specify either what an " unacceptable" dose is (though it mentions both 30 rem and 200 rem) or what probability of receiving such a dose is "too high." Nor does the County propose any reasoned basis for establishing such numbers.
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- 1. There are no probabilistic dose criteria in the emergency planning regulation To put it bluntly, x and y do not exist. Not in 10 C.F.R. $ 50.47, not in NUREG-0654, not anywhere in NRC regula-tions or guidelines. There is no dose (y) that is " acceptable" l or " unacceptable" for licensing purposes.5/ There is no "ac-ceptable" probability (x) of receiving such a dose. The 5/ The Protective Action Guides, for example, are not:
A Protective Action Guide under no circumstances implies an acceptable dose.
Since the PAG is based on a projected dose, it is used only in an ex post facto effort to minimize the risk from an event which is occurring or has already occurred.
4 Exposures to populations from an inci-dent may well be above acceptable levels, in an absolute sense. However, since the event has occurred, PAGs should be imple-mented to ameliorate the impact on already exposed or yet-to-be exposed populations.
On this basis there is no direct rela-tionship between acceptable levels of societal risk and Protective Action Guides.
PAGs balance risks and costs against the benefits obtained from protective action, assuming that the projected threat will transpire. The responses made in a given situation should be based on PAGs and the spectrum of possible protective actions available at that time.
EPA, Manual of Protective Action Guides and Protective Actions for Nuclear Incidents 1.1-1.2 (revised 1980).
purpose of emergency planning is not to achieve absolute levels of risk but rather to achieve " dose savings."s/
An emergency plan is simply not required to ensure svoidance of radiation in excess of some specified level, any more than it is required to ensure evacuation within some specified time.7/ How is a licensing board to decide when the risk is so high as to violate NRC regulations? Suppose it is true, for example (as the Finlayson testimony says) that given a serious accident there would be a 2% chance of 6500 people receiving a 200-rem exposure (Finlayson testimony 14-15).
There is absolutely no guidance in NRC regulations or caselaw for concluding that this risk is either acceptable or unacceptable for licensing purposes.
In fact, the NRC has expressly declined to establish such a licensing criterion. The County's theory of this case would do what the Commission has decided not to do. See Policy Statement on Safety Goals for the Operation of Nuclear Power g/ The basic goal of emergency planning is to achieve dose savings, Cincinnati Gas & Elec. Co. (Wm. H. Zimmer Nuclear Power Station, Unit No. 1), ALAB-727, 17 NRC 760, 770 (1983),
not to achieve some absolute level of safety. See also id. 765 (the overall objective is "the avoidance of as much radiation exposure as possible") and the quotation above from San Onofre about emergency planning being a " risk reduction" measure.
7/ See n.11 below.
Plants, 48 Fed. Reg. 10,772 (Mar. 14, 1983). The Commission has published risk-based safety goals and design objectives, but during a two-year evaluation period these are not to be used to license power plants:
The' qualitative safety goals and quantitative design objectives contained in the Commis-sion's Policy Statement will not be used in the licensing process or be interpreted as requiring the performance of probabilistic risk assessments by applicants or licensees during the evaluation period. The goals and objectives are also not to be litigated in the Commission's hearings. The staff should continue to use conformance of regulatory re-quirements as the exclusive licensing basis for plants.
48 Fed. Reg. at 10,775 col. 2 (Mar. 14, 1983.) Once again, Suffolk County's theory is a challenge to the regulations.
Eve. c if there were an absolute risk criterion, the Finlayson testimony would be insufficient to establish whether it was met or not, because the testimony addresses conditional and not absolute probabilities. All of the Finlayson probabilities assume that a serious accident has occurred. If it were true, for example, that there were a 2% chance of 6500 people receiving 200 rem at Shoreham, given a serious accident, l
and if another nuclear plant posed only a 1% chance, a licens-
[
t ing board could not draw any conclusions about relative risk (let alone about compliance with some risk criterion) unless it knew the probabilities of having a serious accident at both a
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I plants. If the chance of such an accident at Shoreham were one-hundredth that of the other plant, then Shoreham would be safer in absolute terms. The Finlayson testimony, because it provides no absolute probabilities, is insufficient te support any conclusions that are even conceptually capable of resolving the licensing issue.
If it were possible to show noncompliance with 10 C.F.R. $ 50.47 by calculating the probaLilities of radiation exposure, it would then be the case that all the nuclear plants that do not have a probabilistic risk assessment would be in a state of noncompliance with the regulations, since they would not be able to show that they met the probabilistic risk crite-rion, whatever it is, that suffolk County seeks to establish as a licensing requirement in this case. It would also mean that all plants would have to have a probabilistic risk assessment, and this is clearly not the law. There is no NRC requirement that a probabilistic risk analysis, such as the Finlayson tes-
! timony presents, be prepared and examined as a prerequisite for l
! licensing.8/ NRC Safety Goal Development Program, 48 Fed. Reg.
g/ To the extent a consequence analysis is relevant, it has already been incorporated into NUREG-0396 and NUREG-0654. See l Louisiana Power & Light Company (Waterford Steam Electric Sta-tion, Unit 3) ALAB-732, 17 NRC 1076, 1099 (1983), noting that NUREG-0654 "is consequence-oriented, in that it is designed to provide a frcmework for response to a wide range of accidents."
(footnote continued) l L
1
- 13-10,772, 10,775 (1983); see also Prehearing Conference Order (Phase I - Emergency Planning), slip op. 18-20 (July 27, 1982)
(unpubl.ished).
In Phase I the intervenors tried several times to get admitted an emergency planning contention based on the Shoreham probabilistic risk assessment. The Board consistently rejected these efforts, most decisively in its July 27, 1982, Prehearing Conference Order, slip op. at 20:
It also appears clear that LILCO does not plan to rely on-its .PIU\ as evidence that its accident assessment and dose assess-ment models meet NRC requirements. We therefore do not see the need to litigate
' LILCO's PRA in these circumstances, unless LILCO attempts to rely upon its (footnote continued)
A theory similar to the County's, that emergency plans should be subjected to a cost-benefit analysis, was rejected by the Appeal Board in the San Onofre case:
[W]e are of the view, at least prelimin-i arily, that the emergency planning rule itself already accounts for whatever cost / benefit analysis might be necessary.
As the applicants rightly remark, "[t]he i emergency planning zone concept [in the Commission's rules already) takes into ac-count the broad range of radiological acci-dents and dose consequences to the public j from such accidents." It need not be j
reanalyzed in each individual proceeding.
Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-680, 16 NRC 127, 132 (1982) (foot-note omitted),
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PRA in either its direct or rebuttal tes-timony on this contention.
We do not believe that this conclu-sion prejudices intervenors' rights in any way. As was noted above, Suffolk County has conceded that a PRA per se is not required by NRC regulations. Fur-thermore, the intervenors' July 12, 1982 revision of EP27 asserts not only that the "results of the PRA/ consequence anal-ysis are not reflected in the LILCO plan," but also that "there is no evi-dence of other means, if any, used by LILCO to ensure the accuracy of the as-sessment models." Therefore, if LILCO j can make its case using only evidence of "other means" used to ensure the accuracy of its assessment models, we see no rea-son to litigate LILCO's PRA in this con-text, unless LILCO atempts to rely on it.
This is part of the law of the case in this proceeding.9/
LILCO has not attempted by rely on its PRA in its di-rect case. As revealed by Mr. Potter's deposition, the Shoreham PRA was not used for making the emergency plan or for determining whether it meets NRC requirements:
Q. Mr. Potter, Ms. Letsche ran you through a series of questions this morning on one of the goals stated in your study of ana-lytical testing of various emergency response
' measures. This is on page 1-2 of your re-port. Do you remember those questions?
l l 9/ LILCO has consistently maintained that the PRA is not litigable for emergency planning purposes. When the County ~
submitted written testimony on the consequence analysis in Phase I, LILCO moved to strike it. (The County's default on tr.e Phase I issues prevented the motion to strike from being ru, Led on by the Board. )
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A. Yes.
Q. Is this sort of analytical testing of various emergency response measures necessary to do an emergency plan?
A. No.
Q. Is this sort of analytical testing of various an [ sic] emergency response measures necessary for determining if emergency plan that already exists complies with NRC regula-tions and guidelines?
A. No , not in my judgment.
Q. Has LILCO used your consequence anal-ysis for either of those purposes?
J A. No.
Q. Why did you include this goal of ana-l lytical testing of various emergency response measures among the goals of your study?
A. The overall goal of the PRA was to assess the risk to the public from the plant.
And one of the factors that helps determine that risk is the effectiveness of emergency response and how if affects the risk.
So we had identified really a kind of two-way information pathway that was poten-tially useful; one of which was necessary.
We had to have information about emergency response assumptions in order to get a rea-sonable representation of risk from the plant.
And in the process of determining the robustness of our results, if you want to use the term, we identified a need to test vari-ous emergency response measures that you could expect to be implemented. And at the same time in doing that we felt that there would be information that could be poten-tially useful to those who might be called a
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upon to take part in the emergency response process. That's basically why we did it.
Q. Did any LILCO representative suggest that you add or delete things to your report, focus or structure it or time the completion of it to gain some advantage or to serve some purpose in the NRC licensing proceeding for Shoreham?
A. No, not in the licensing proceeding.
The initial scope of work identified a gener-al structure for the study, but that was not related to the NRC licensing procedure.
Deposition of Thomas E. Potter, August 31, 1983, Tr. 117-19.10/
10/ In an " Affidavit of John R. Sears" dated August 31, 1983, filed in response to Suffolk County disenvery requests, the NRC Staff not66 that the PRA is not a prerequisite for li-censing Shoreham and that the Staff's plan for reviewing the PRA is not relevant to any emergency planning contention admit-ted in this proceeding:
Attached is a copy of a document enti-tied " Review of Probabilistic Review As-sessment for the Shoreham Nuclear Power Station". [As the County is no doubt aware, the Staff does not view the PRA as a prerequisite for licensing Shoreham. (See generally the record compiled with regard to SC-SOC Contention 7B). Nor is the at-tached document relevant to any EP conten-tion admitted in this proceeding.]
Affidavit of John R. Sears, August 31, 1983, at 2.
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- 2. There are no evacuation time criteria,in NRC regulations The Finlayson testimony is essentially just another way of saying that evacuation should be as speedy as possible.
Time spent in the plume multiplied by dose rate equals dose;-
the longer the time (other things being equal), the larger the dose.
So a quantitative dose criterion for emergency planning such as the County envisions is in a sense a quantitative cri-terion for maximum allowable evacuation time, and no such time criteria exist.11/ The emergency plan need not show that the 11/ The NRC requirements do not prescribe specific time limits governing the evacuation of plume EPZ's, The PStroic idison Co.
(Enrico Fermi Atomic Power Pirnt, Unic 2), ALAB-730, 17 NRC 1057, ICL9 n.13 (1983), thougr an emergency plan does need to be concerned with the efficiency of accomplishing evacuation given the conditions under which it must take place.
Cincinnati Gas & Elec. Co. (Wm. H. Zimmer Nuclear Power Sta-tion, Unit No. 1), ALAB-727, 17 NRC 760, 770 (1983). Maximum time allowances for evacuation are not required. Pennsylvania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-82-30, 15 NRC 771, 817 154 (1982). The require-ment is that evacuation time estimates be realistic; conserva-tive assumptions designed to show hou an evacuation plan could fail if the worst events were to take place do not serve the goals of emergency planning. Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-82-70, 16 NRC 756, 785-86, 835 (1982). There are no criteria for the adequacy of evacuation routes, nor has a minimum evacuation time been set. Under some accident scenarios, evacuation could
~
reduce the dose to the population; under other situations, such as sudden release of radioactivity, evacuation may not be ef-fective. Louisiana Power and Light Co. (Waterford Steam Elec-tric Station, Unit 3), LBP-82-100, 16 NRC 1550, 1561 (Nov. 3, (footnote continued)
evacuation will " outrun" all accidents under all conditions.
See Memorandum and Order,12/ Cleveland Electric Illuminating.
(footnote continued) 1982).
The Seabrook board, in rejecting a contention on evacua-tion time estimates, said this:
The Board agrees with Applicants that pur-suant to the regulations it is not the pur-pose of evacuation time estimates to pro-vide "a reasonable assurance that the public can be safely evacuated during a ra-
- diological emergency." Cinncinati [ sic]
Gas & Electric Co., (Zimmer Station, Unit No. 1), ALAB-727, 17 NRC (1983). Rath-er, the evacuation time estimates serve to
- permit responsible governmental officials to make an informed decision respecting what is appropriate protective action in a given radiological emergency. Cf. Ed. at
- 16.
. Memorandum and Order (Ruling on Contentions on the New Hampshire Radiological Emergency Response Plan), Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ASLBP No. 82-471-02-OL, slip op. 14 (Aug. 30, 1983).
l The NRC Staff's written testimony on Contention 65 recog-nices this principle:
It should be noted that the importance of l the time estimate is related to its accura-cy, not its magnitude. That is to say, the estimate is the basis for decision making i in the event of an accident. It would be just as inappropriate to have an unreasonably long estimate as it would be to have an unreasonably short estimate.
Testimony of Dr. Thomas Urbanik II on Behalf of the NRC Staff on Evacuation Time Estimates and Evacuation Shadow Phenomenon (Contention 65 and Contention 23) 9 (Nov. 18, 1983).
12/ A party to NRC proceedings may not, generally speaking, rely on an unpublished order as precedent. The Cincinnati Gas (footnote continued)
Co. (Perry Nuclear Power Plant, Units 1 & 2), Doc. Nos.
50-440-OL & 50-441-OL, slip op. 4 (Oct. 19, 1982)
(unpublished).13/
Indeed, the very notion of some arbitrary maximum al-lowable dose or maximum allowable evacuation time is at odds with the fundamental goal of emergency planning, namely achiev-ing dose savings. The Finlayson testimony fails completely to show that protective actions cannot achieve dose savings.
(footnote continued)
& Elec. Co. (Wm. H. Zimmer Nuclear Power Station, Unit 1),
LBP-82-47, 15 NRC 1538, 1547 (1982); Pacific Gas & Elec. Co.
(Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-592, 11 NRC 744, 745, reviewed as to other matters, CLI-80-24, 11 NRC 775 (1980). But neither do we believe we are precluded from calling to the Board's attention illustrations of how other boards have handled similar issues.
13/ The Perry licensing board denied, on relevance grounds, a motion to compel answers about the consequences associated with various evacuation time estimates and the consequences of nu-clear accidents. The Board said that it knew of no NRC criteria related to the consequences of evacuation time esti-mates. The board agreed with the applicant that:
If the consequences of a particular acci-dent are so serious that evacuation is not feasible, the off-site emergency evacuation plan does not thereby become unworkable.
j It simply means that evacuation is not the desirable protective measure.
I Memorandum and Order, Cleveland Elec. Illuminating Co. (Perry
!' Nuclear Power Plant, Units 1 & 2), Doc. No. 50-440-OL & 50-441-OL, slip op. 3,4 (Oct. 19, 1983) (unpublished).
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- 3. The County's theory challenges the basis of emergency planning regulation It is clear that no particular accident sequence is to form the basis for an emergency plan. Rather, the basis for emergency planning is to be a " spectrum" of accidents.14/ As the quotation from San Onofre above points out, "no specific accident sequences should be specified." Moreover, the plan-ning basis in NUREG-0396 makes use of risk calculations some-thing like those reported in the Finlayson testimony. Suffolk County has chosen its own spectrum of accidents and attempted to redesign the planning basis from scratch. This is a chal-lenge to the NRC emergency planning regulations.
- 4. The County's theory challenges the 10 C.F.R. Part 100 Siting Criteria The County's theory is a direct challenge to the Com-mission's finding that the Shoreham site meets the siting criteria of 10 C.F.R. Part 100. Long Island Lighting Co.
(Shoreham Nuclear Power Station), LBP-73-13, 6 AEC 271, 278, j aff'd, ALAB-156, 6 AEC 831, 847-48, 851 (1973). This has been i
14/ NUREG-0654 is consequence-oriented, in that it is designed to provide a framework for response to a wide range of acci-dents. Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1099 (1983).
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clear from the beginning, as the County has argued frequently about the " unique local conditions" on Long Island that make it unsuitable for emergency planning and thus for a nuclear plant.
An applicant shows compliance with Part 100 by assuming certain accidents and calculating their consequences. See 10 C.F.R. $ 100.11 (1983). The Finlayson testimony chooses an entirely different set of accidents and calculates their conse-quences. If those consequences are too great, says the County, the plant may not be licensed. Thus the County's imagined x-y risk criterion is simply a challenge to the siting regula-tions.15/
B. Evacuation time estimates should be accurate Besides the proposition that it is possible to receive serious doses of radiation, the Finlayson testimony in 15/ Cf. Cleveland Electric Illuminating Co; (Perry Nuclear Power Plant, Units 1 &2), LBP-81-24, 14 NRC 175, 190 (1981):
There is one aspect of the emergency plan-ning contentions which is not admissible.
One of the arguments made by Sunflower at the hearing appeared to challenge the suitability of the Perry site because of the highway patterns in Mentor. We do not believe that this contention properly raises the issue of site suitability, which was litigated at the construction permit stage.
connection with Contention 65 attempts to establish an addi-tional, wholly different idea (proposition "2" above). This idea is that if actual evacuation times are longer than the calculated times used to decide the best protective action, then decisionmakers may decide on the wrong protective action recommendation:
[E]vacuees potentially will be in the EPZ and exposed to the radiation which the evacuation is designed to enable them to escape, for substantially longer periods of time than LILCO assumes. Therefore, it is likely that the assumed "protec-tion" or reduction in dose upon which the LILCO evacuation recommendation will be based under the LILCO Plan will not be achieved, and, in fact, doses may be in-creased.
. . . . Our analysis shows that if the assumptions concerning evacuation times used by LILCO adequately took into account traffic congestion, queuing de-lays, and the exposure times for evacuees the resulting radiation doses would be
! substantially larger. Thus, under the Plan and as a result of its inaccurate assumptions, LILCO is likely to recommend evacuation in circumstances that are likely, in fact, to threaten a large num-ber of evacuees with serious radiation doses and health consequences.
Finlayson testimony 8, 13. There are two reasons why this part of the Finlayson testimony should be stricken. The first rea-l son is the same one discussed above: the point being made is i
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irrelevant to the issues. All it stands for is that evacuation time estimates should be accurate, a principle already well-established in NRC law.1p/ The second reason is that this part of the Finlayson testimony challenges the bases for making pro-tective action recommendations, and those bases were put squarely in issue in Phase I. Both LILCO and Suffolk County filed written testimony on the Phase I " protective actions" contention. The basis for making protective action recommenda-tions has not changed. So the intervenors are precluded by their Phase I default from filing testimony on the issue.
Phase I issue EP 4 addressed the bases for deciding be-tween evacuation and sheltering:
EP4: Protective Actions (SC, joined by NSC and SOC)
Suffolk County contends that LILCO has not met the requirements of 10 CFR 550.47(b)(10), 10 CFR Part 50, Appendix E, Item B, or NUREG 0654, Item II.J with respect to development and implementation 16/ See n.11 above. One can only determine whether an esti-mate is sufficiently accurate by considering whether it serves the purposes for which it was computed. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), 17 NRC 1170, 1175 (1983).
In the Indian Point special proceeding, the board found that the licensees' evacuation time estimates sufficiently in- >
formed decisionmakers of the uncertainty by providing a range of estimates,~and the range was " considerable." Consolidated Edison Co. of New York (Indian Point, Unit Nos. 2 and 3), ASLBP 81-466-03-SP, 18 NRC __, slip op. 240 (Oct. 24, 1983).
of a range of protective actions for emergency workers and the public within the plume exposure pathway EPZ and with respect to development of guidelines for the choices of such actions in that the LILCO plan and procedures do not ade-quately discuss the bases for the choice of recommended protective actions (i.e.,
the choice between various ranges of evacuation vs. sheltering vs. other op-tions) for the plume exposure pathway EPZ during emergency conditions. Thus, LILCO does not have sufficient knowledge or in-formation to provide reliable, accurate protective action recommendations. -
Likewise, Phase I contention EP 10 addressed monitoring for the purpose of dose assessment, and EP 14 questioned the " methods, systems and equipment" for assessing and monitoring offsite consequences. Dr. Finlayson and Mr. Minor sponsored testimony on EP 10 and EP 14.
To oversimplify somewhat, protective action recommenda-tions are made as follows. Decisionmakers order whichever action -- sheltering or evacuation -- will result in lower ra-diation doses to the public. They do this by calculating a
" sheltering dose" (the dose people will receive if they shel-ter) and an " evacuation dose" (the dose people will receive if they evacuate). If the evacuation dose is less, then evacua-tion is preferred te sheltering.12/
12/ The logic of this choice was addressed in LILCO's written Phase I testimony on EP4:
(footnote continued) l
Evacuation time estimates influence the calculated (footnote continued)
Q8. How does LILCO arrive at a Protective Ac-tion Recommendation?
A8. [Blauer, Aidikoff] In order to reflect changes in plant or meteorological condi-tions, LILCO continually determines the projected dose to downwind zones using ei-ther calculations or field monitoring pro-cedures. Using the projected dose as an input into the Protective Action Recommen-dation procedure SP 69.026.01, the thyroid and whole body doses to the population at risk are determined for each of the protec-tive actions under consideration. The re-sults of these calculations are shelter doses and evacuation doses for whole body and thyroid exposure. These doses are com-pared to the EPA Protective Action Guides as follows:
-- No action is recommended in Emergency Response Planning Areas (ERPA's) where the projected whole body dose is less than 1 rem or the projected thyroid dose is less than 5 rem.
-- Sheltering is recommended in ERPA's where the projected dose is 1 to 5 rem whole body or 5 to 25 rem thyroid; evacuation will be recommended if as the accident develops it becomes clear that the evacuation dose would be less than the sheltering dose.
-- Evacuation is recommended in ERPA's where the evacuation dose is less than the sheltering dose and the sheltering dose is greater than 5 rem whole body .
and greater than 25 rem thyroid.
Testimony of Brant Aidikoff, H. Mark Blauer, Matthew Cordaro, Edward Lieberman, and James Rivello on Behalf of Long Island Lighting Company on Phase I Emergency Planning Contention EP 4:
Protective Actions 10-11 (Oct. 12, 1982).
1 evacuation dose, because the calculation presumes that people are exposed to the plume for the length of time required to evacuate after the plume arrives.lg/ Hence a large evacuation
, tima estimate results in a large calculated evacuation dose.
Evacuation time estimates that are unrealistically high result in larger-tha.3-realistic evacuation doses and make evacuation look less attractive as an alternative, compared to sheltering; conversely, evacuation time estimates that are too short tend to make evacuation look more desirable than it should.
It is thus true that inaccurate evacuation time esti-mates can bias this decision process in one way or another. It is just as true that the intervenors had the opportunity to litigate this issue in Phase I. They should not be permitted a second chance now.
In short, proposition "2" of the Finlayson testimony is either nothing more than the issue whether evacuation time es-timates are accurate, or it is a Phase I issue about how pro-tective action recommendations are made. Either way, it is in-admissible.
l Ig/ This was made clear in procedure SP 69.026.01, " Protective
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Action Recommendations," which was Attachment 4-14 to LILCO's Phase I testimony on EP 4.
-. . - , .- _ _ . . - _ - - . _ . . . . , _ - . . . . , _ , - - - - . _ , - , _ -- , . _ _ , _ _ . - ~ , - - - _ . - - - - - .
II. Contentions 23.D and 23.H: The Finlayson Testimony Adds Nothing to the Relevant Information about the " Shadow Phemonenon" The two propositions made in Contentions 23.D and H are simply that people from inside the EPZ as well as people out-side the EPZ entering the EPZ might encounter the radioactive i
plume. Thus:
Contention 23.D:
The additional congestion by volun-tary evacuation will cause adverse health consequences to the public because (a) evacuees from beyond the 10-mile EPZ will impede the evacuation of those with-in the 10-mile EPZ who are ordered to evacuate, resulting in evacuees' receiving health-threatening radiation doses; and (b) those who choose to evacu-ate will be unable to do so safely and efficiently. . . . If voluntary evacua-tion were properly taken into account, the LILCO time estimates would increase substantially, rendering evacuation an inadequate protective action for many ac-cident scenarios. (Emphasis supplied.)
Finlayson testimony 4-5.
Contention 23.H:
! [V]oluntary evacuees from the East End whose chosen evacuation routes may cross the EPZ perimeter, may travel into contaminated areas and receive health threatening radiation doses. . . .
Finlayson testimony S.
The point with respect to people from inside the EPZ l
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(proposition "3" above) appears to be the same as proposition "1" under Contention 65, discussed above: if people get stuck in traffic, they can be exposed to the plume longer and may re-ceive " health-threatenin;" doses. As the Finlayson testimony puts it:
Assuming that persons from within the EPZ who have been advised to evacuate will be caught in congested traffic in their au-tomobiles inside the EPZ for periods of time longer than those estimated by LILCO, under many accident scenarios, the probability.of receiving life threatening doses will be increased, as explained
' above, as a result of longer delays which will increase exposure. times.
Finlayson testimony 16. This testimony adds nothing relevant to the' testimony of Mr. Polk.
The testimony then addresses people from outside the EPZ and says that evacuees from the east end of Long Island (outside the EPZ) who are not advised to evacuate may do so anyway, may be stuck in traffic, and may receive certain doses of radiation (proposition "4"):
Moreover, LILCO's failure to take the evacuation shadow phenomenon into account properly will increase the probability of receiving health threatening doses for all those shadow evacuees from the east end of the island who take the principal east-west routes of Route 25, the Long Island Expressway and the Sunrise Highway as has been discussed above.
Finlayson testimony 16-17.
J 1 4
4
At the east boundary of the EPZ is an example where entering traffic from the east end causes delays and increases the probability of serious exposures. See, for example, the eastern termini of route segments 7 and 8 on Figure 2. East end evacuees are likely to be on these route segments, to enter the EPZ, and to cause delays. At the northern terminus of the Northville Turnpike (Route 51 at Route 27), a 3 hour3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> queue, involving approxi-mately 376 cars is projected to occur.
The people in that queue, some of whom will be from the North Fork, have a 10 to 20 percent chance of receiving a 30 ram dose. Those people passing through the above junction will likely proceed down Route 51 to its intersection with the Sunrise Highway. At that intersection, they are likely to be joined by others from the South Fork and a 5 hour5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> queue is projected, involving 794 cars. These people also have a 10 to 20 percent chance of experiencing a health threaten-ing dose of 30 rems. Thus the influence of east end evacuees will*both add to the traffic congestion and increase their chances of receiving serious radiation doses.
Finlayson testimony 17-18. Once again, all this is irrelevant to meeting or not meeting NRC regulations. If a person walks into a flood, he will drown with some probability. If a person drives into a radioactive plume, he will be exposed to radia-tion. The question for emergency planners is not how much ra-diation people might receive if they do the wrong thing but rather how to get them to do the right thing. As the Diablo Canyon board quite sensibly said:
ys- ww -- ,-y 3y - i,..--.=-.-i --. ..,e-- y , --m y - i
Assuming overreaction [by the public) was likely, we have no remedy beyond that which is already planned, which is to broadcast accurate, consistent informa-tion.
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-82-70, 16 NRC 756, 779 (1982).
To put it another way, the Finlayson testimony is de-signed to prove that if an actual evacuation goes slower than the planners have planned, or if the public reacts contrary to plan, then the probability of receiving serious doses of radia-tion increases. But showing that the probability of injury in-creases or decreases does not help to decide whether NRC plan-ning requirements are met. All it does is emphasize the desirability of good planning.
III. Portions of the Finlayson Testimony Are Merely Cross-References to the Testimony Of Testimony of Others Parts of the Finlayson testimony merely recite what other County witnesss are testifying and, in fact, are outside the expertise of the witnesses (Finlayson, Minor, and Radford) reciting them. For example, page 13 of the Finlayson testimony says this:
As other County witnesses discuss, the queue lengths and evacuation times which are likely in an actual evacuation can be substantially longer than those used by LILCO in deciding to recommend evacuation as a protective action.
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4 Finlayson testimony 13. This 'ounds s as though Messrs.
Finlayson, Minor, and Radford independently have drawn the same conclusions about evacuation times as "other County witnesss" (Mr. Polk,-to be specific). In fact, Messrs. Finlayson, Minor and Radford are not qualified to perform traffic analyses and have done no independent traffic analyses, and yet the testimo-ny sounds as though four expert witnesses support Mr. Polk's time estimates instead of one. The same thing occurs at page 8, where we find Messrs. Finlayson, Minor, and Radford saying, not that they are relying on the traffic analyses of others, but rather:
However, as the other suffolk County wit-nesses state, the LILCO evacuation time
. estimates are inaccurate and an evacua-tion will in reality take much longer.
Finlayson testimony 8.
There is no harm in this sort of thing so long as no one, in proposed findings, cites both the Folk testimony and the Finlayson testimony for the proposition (for example) that
" evacuation times can be substantially longer than those used by LILCO." The surest way to avoid this sort of thing is to strike the offending sentences.19/ Since those sentences 19/ LILCO is less concerned about those cross-references that make it clear that the witnesses are relying on the work of others, such as the first two sentences on page 9 of the Finlayson testimony and the sentence beginning "According to (footnote continued) m
merely recite what other County testimony says, no harm will be done to the County's case by striking them.
IV. Conclusion The Board should strike the Finlayson testimony. It can add nothing to the resolution of the issues and has the po-tential for bogging the proceeding down in weeks of litigation on probabilistic risk analysis.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY n.Ow a ames N. Christman Hunton & Williams 707 East Main Street P. O. Box 1535 Richmnd, VA 23212 November 28, 1983 i
i (footnote continued)
Mr. Polk's estimates" in the middle of page 10. These are use-ful in understanding the testimony and could not be misinter-preted as the independent opinions of Dr. Finlayson, Dr.
Radford, er Mr. Minor.
LILCO, November 28, 1983 t
CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322 (OL)
I hereby certify that copies of LILCO's MOTION TO STRIKE TESTIMONY OF FRED C. FINLAYSON, GREGORY C. MINOR AND EDWARD P. RADFORD ON BEHALF OF SUFFOLK COUNTY REGARDING CONTEN-TIONS 65, 23.D AND 23.E were served this date upon the follow-ing by first-class mail, postage prepaid, or (as indicated by one asterisk) by hand, or (as indicated by two a'sterisks) by Federal Express.
James A. Laurenson,* Secretary of the Commission Chairman U.S. Nuclear Regulatory-Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing East-West Tower, Rm. 402A Appeal Board Panel 4350 East-West Hwy. U.S. Nuclear Regulatory Bethesda, MD 20814 Commission Washington, D.C. 20555 Dr. Jerry R. Kline*
Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East-Wect Tower, Rm. 427 Washington, D.C. 20555 4350 East-West Hwy.
Bethesda, MD 20814 Bernard M. Bordenick, Esq.*
l David A. Repka, Esq.
Mr. Frederick J. Shon* Edwin J. Reis, Esq.
i Atomic Safety and Licensing U. S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory 7735 Old Ge;;;getown Road Commission (to mailroom)
East-West Tower, Rm. 430 Bethesda, MD 20814 4350 East-West Hwy. '
f Bethesda, MD 20814 1.
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(
Eleanor L. Frucci, Esq.* Stewart M. Glar s, Esq.**
Attorney Regional Counsel Atomic Safety and Licensing Federal Emergency Management Board Panel Agency U. S. Nuclear Regulatory 26 Federal Plsza, Room 1349 Commission New York, New York 10278 East-West Tower, North Tower 4350 East-West Highway Stephen B. Latham, Esq.**
Bethesda, MD 20814 Twomey, Latham & Shea 33 West Second Street David J. Gilmartin, Esq. P.O. Box 398 Attn: Patricia A. Dempsey, Esq. Riverhead, New York 11901 County Attorney Suffolk County Department Ralph Shapiro, Esq.**
of Law Cammer & Shapiro, P.C.
Veterans Memorial Highway 9 East 40th Street Hauppauge, New York 11787 New York, New York 10016 Herbert H. Brown, Esq.* James Dougherty, Esq.*
Lawrence Coe Lanpher, Esq. 3045 Porter Street Christopher McMurray, Esq. Washington, D.C. 20008 Kirkpatrick, Lockhart, Hill Christopher & Phillips Howard L. Blau 8th Floor 217 Newbridge Road 1900 M Street, N.W. Hicksville, New York 11801 Washington, D.C. 20036 Jonathan D. Feinberg, Esq.
Mr. Marc W. Goldsmith New York State Energy Research Group Department of Public Service 4001 Totten Pond Road Three Empire State Plaza Waltham, Massachusetts 02154 Albany, New York 12223 MHB Technical Associates Spence W. Perry, Esq.**
1723 Hamilton Avenue Associate General Counsel Suite K Federal Emergency Management San Jose, California 95125 Agency 500 C Street, S.W.
Mr. Jay Dunkleberger Room 840 New York State Energy Office Washington, D.C. 20472 Agency Building 2 Empire State Plaza Ms. Nora Bredes Albany, New York 12223 Executive Coordinator Shoreham Opponents' Coalition 195 East Main Street Smithtown, New York 11787 1 $6^N '
Hunton & Williams a 707 East Main Street
{/'mesN. Christman P.O. Box 1535 Richmond, Virginia 23212 DATED: November 28, 1983
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