ML20087M743
| ML20087M743 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/27/1984 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| OL-3, NUDOCS 8403300256 | |
| Download: ML20087M743 (38) | |
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LILCO, March 27, 1984 inf iM.CENQS 80CNETED (1E1/u E.D c.
USHRC UNITED STATES OF AMERICA 14 MR 30 mi:05 NUCLEAR REGULATORY COMMISSION f,'l, 5 0= M i:t v wu. ' '., 5 5.
u, Before the Atomic Safety and Licensing Board In the Matter of
)
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency Planning (Shoreham Nuclear Power Station, )
Proceeding)
Unit 1)
)
LILCO'S MOTION TO STRIKE PORTIONS OF THE
" GROUP II-B" TESTIMONY OF SUFFOLK COUNTY On March 21, 1984, Suffolk County filed the following six pieces of written testimony on the " Group II-B" issues:
1.
Direct Testimony of David Harris and Mar-tin Mayer on Behalf of Suffolk County Re-garding Contentions 24.J, 24.N, 60, 63, and 72; 2.
Testimony of Fred C.
Finlayson, Gregory C. Minor and Edward P.
Radford on behalf of Suffolk County Regarding Contention 61; 3.
Direct Testimony of Robert W.
Petrilak on Behalf of Suffolk County Regarding Con-tentions 24.E, 24.N, 61.C, 69, 70 and 71; 4.
Direct Testimony of Dr. George J.
Jeffers.
and Anthony R. Rossi on Behalf of Suffolk-County Regarding Contentions 24.E, 24.F, 61.C, 69, 70 and 71; 5.
Direct Testimony of Nick J. Muto and J.
Thomas Smith on Behalf of Suffolk County 8403300256 840327 PINT ADOCK 05000322
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G PDR p
. Regarding Contentions 24.E, 24.F, 24.N, 61.C, 69, 70, and 71; and 6.
Testimony of Gregory C. Minor on Behalf of.Suffolk County Regarding Contentions 85 and 88.
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/
Irrelevant testimony is the proper subject of a mo-tion 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.
S 2.718, and through the specific authority under 10 C.F.R. 5 2.757(b) to strike argumentative, repeti-tious, cumulative, or irrelevant evidence.
As the Board said in its Amended Order Ruling on Motions to Strike of January 23, 1984:
In ruling on these motions, we have applied the standard of 10 C.F.R.
S 2.743(c):
For evidence.to be admissi-ble in NRC proceedings, it must "rele-vant, material, and reliable evidence which is not unduly repetitious."
Any l
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Title 10 C.F.R.
$ 2.743(c) provides:
Only relevant, material, and reliable evi-dence which is not unduly repetitious will be admitted.
Immaterial'or irrelevant j
parts of an admissible document will be segregated and excluded so'far.as is prac-ticable.
6 other type of proffered evidence is sub-ject to motions to strike.
10 C.F.R. 5 2.757(b).
Such a motion, however, must state with particularity how the evidence deviates from that standard (10 C.F.R. 5 2.730(b)).
The applicant, Long Island Lighting Company (LILCO),
hereby moves to strike certain portions of the above-cited tes-timony, as follows.
I.
Direct Testimony of David Harris and and Martin Mayer on Behalf of Suffolk County Regarding Contentions 24.J, 24.N, 60, 63, and 72 LILCO moves to strike the following portions of the "Di-rect Testimony of David Harris and Martin Mayer on behalf of Suffolk County regarding Contentions 24.J, 24.N, 60, 63, and 72":
page 12, line 13 through the end of.page 21; page 25, line 7 through page 26, line 15; all of page 29 through page 36, line 3; and page 40, line 13 through page 41,'line 7.
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Contentions 60 and 63 First, LILCO moves to strike page 12, line 13'through page 21 of the Harris and Mayer testimony on Contentions 60 and 63, because this testimony is outside the scope of the conten-tions.
Contentions 60 and 63' state that the LILCO plan " fails
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to set forth guidelines to be used by command and control per-sonnel: (a) in choosing to recommend the protective action of-i
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selective [ sheltering or evacuation]; or (b) in determining, identifying, and locating the individuals who should be subject
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to such a recommendation."
The two contentions allege, in ad-dition, that the LILCO Plan does not contain procedures "which indicate the means by which such a reco,mmendation (of selective sheltering or selective evacuation] would or could be imple-mented."
Clearly, Contentions 60 and.63 address the guidelines used by LERO to make the decision to recommend selective shel-tering or selective evacuation, and the procedures by which the LERO organization would implement its recommendation under the LILCO Transition Plan.
The Harris and Mayer testimony that LILCO seeks to strike, on the other hand, launches a discussion of the following issues, all outside the scope of Contentions 60 and 63:
(1) whether sheltering is a viable alternative for per-sons in special facilities (p. 12, lines 13-15);
(2) how special facilities would implement such a rec-ommendation (in. contrast to the contentions,.which address how the LERO organization would implement its protective action recommendation) (p. 13, lines 1-19);
(3) the County's witnesses' understanding of what plan-ning has been done by LILCO with special facilities,'and the.
County's witnesses' representations regarding the doubts and m.
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opinions of administrators of these special facilities about taking protective actions in an emergency (p. 13, line 20 through p.
15, line 12);
(4) the areas where LILCO employees allegedly have ad-
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vised administrators of nursing and adult homes to shelter pa-tients, and whether these places are appropriate (p. 15, lines 13-18);
(5) the difficulties in moving beds and other equipment out of rooms (p. 15, line 19 through p.
16, line 20);
(6) the ability to keep outside air out of buildings (p. 16, line 21 through p.
17, line 11);
(7) the results of turning off air conditioners in the summer during an emergency (p.-17, line 12 through p.
18, line 8);
(8) the need for adequate staff, and their. inability to report to duty because of role conflict-(p. 18, lines 9-22);
i (9) the difficulty of reinforcing staff with workers who may become contaminated on their way to the.special facili-ty (p. 19, lines 1-11);
(10) the inability of administrators to' decide between sheltering an'd evacuation (p. 19, line 12 through p. 20, line 3);
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(11) selective sheltering of handicapped individuals at home (which is contemplated nowhere in the LILCO Plan or in Contentions 60.and 63) (p. 20, line 4 through p. 21).
None of the topics listed above is within the scope of Contentions 60 and 63, and therefore.that testimony should be struck.
i B.
Contention 72.C Page 25, line 7 through page 26, line 15 should be struck as outside the scope of Contention 72.C.
Contention 72.C states that "the plan fails to identify any relocation or reception centers for persons evacuated from any hospitals, nursing homes, or other special health care facilities other than the United Cerebral Palsy of Greater Suffolk." 1k) other part of Contention 72 discusses relocation or reception centers for special facilities.
The Harris and Mayer testimony on pages 25-26 suggests the difficulty of finding an adequate num-ber of facilities "regardless of whether or not LILCO has tried to make adequate arrangements and obtain agreements with recep-tion facilities" (page 25, lines 7-9).
This discussion of the impossibility of finding reception or relocation centers is clearly outside the scope of the contention, which merely identifies an alleged deficiency in the Plan, that is, that 9
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l such reception or relocation centers are not_ identified in the Plan.
The remaining testimony on pages 25-26 regarding 1
(1) estimates of the number of people who might require reloca-tion or reception centers, (2) discussions between Messrs.
Harris and Mayer and the staffs of facilities identified as possible reception centers in outdated versions of the LILCO l
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Plar, and (3) approximations of how many persons a hospital might accommodate in an emergency also is outside the scope of~
Contention 72.C and therefore should be struck as irrelevant.
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Contention 72.A i
i In addition, certain testimony in response to Contention-72.A is outside the scope of that contention and therefore j
should be struck.
Contention 72.A alleges that, assuming the i
necessary vehicles were available to LILCO and were mob 111 zed,
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the time necessary following mobilization to accomplish the proposed evacuation of special facilities will be too long.to i
provide adequate protection from health threatening radiation doses" because of (1) the large number of trips necessary.to.
transport persons individually.to relocation centers" (2) "the other mobilization and evacuation traffic congestion which the evacuation vehicles will encounter" and (3)."the-time'necessary_
4 to load and unload passengers from ambulances." LBeginning on page 2.9.of'the Harris and Mayer testimony, Harris and Mayer-I-
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. discuss (1) the process by which LILCO employees at the EOC would attempt to coordinate evacuation (p. 29, lines 1-9); (2) the ability of the LERO Health Facilities Coordinator to con-tact facilities for the handicapped, the ten nursing or adult homes, and the three hospitals listed.in the LILCO Plan (p. 29, line 10 through p. 30, line 14); and (3) the garbled informa-tion that might cause delays (p. 30, lines 15-22).
These items are not related to (1) the large number of trips necessary to transport persons to relocation centers, (2) mobilization or evacuation traffic congestion that will be encountered or (3) the time necessary to load and unload passengers from ambu-lances, which are the only three reasons discussed under Con-tention 72.A for a lengthy evacuation of special facilities.
This testimony, therefore, is outside the scope of Contention 72.A and should be struck.
For the same reasons, the general discussion on page 31 of the ability of hospitals and nursing homes.to implement ex-isting." disaster" plans in an emergency is irrelevant:and out-side the scope of any part of Contention 72 and-should be struck; the discussion on pages 32 and 33 regarding (1).the amount of time that would be necessary to prepare patients for.
an evacuation by moving patients' records and' medications, (2) the time it would take to identify which patients should be moved.and in what order, (3) and.the time it would take tc
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identify the appropriate equipment to move with such patients, are all outside the scope of Contention 72.A and should be struck; the discussion on pages 34-35 regarding staffing, and whether personnel are available and during what time of day, how long it might take for off-duty personnel to report, wheth-er those personnel would be involved in surgical operations that could not be interrupted once they had begun and therefore would be unavailable, and whether staff would stay behind to take care of patients, are all outside the scope of Contention 72.A and should be struck.
The last four lines on page 35 and the first 3 lines on page 36, which summarize the previous sev-eral pages of testimony that is outside the scope of Contention 72.A, should also be struck.
The portion of Contention 72.A which specifies that evacuation will take longer due in part to "the time necessary to load and unload ambulan:es" cannot be expanded to include the myriad issues discussed on pages 29-36 of the Harris and Mayer testimony.
D.
Contention 72.E LILCO moves to strike the paragraph of the Harris and Mayer testimony beginning on page 40 and ending after seven lines on page 41, which reads as follows:
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.i Second, because of the long delay at the start of evacuation, the degree of confusion involved.in attempting to im-
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plement an evacuation would be even greater at hospitals than at the other i
facilities.
Immediately after the evacu-ation recommendation, staff.and patients would anxiously attempt to prepare.
The urgency of the situation would be appar-ent to everyone.
But people in the hos-pitals would know they were to be the last evacuated, and several hours.would pass before the first vehicles arrived to
- begin to transport patients out of the danger zone.
Under those circumstances.
people almost certainly would become even more anxious and frightened.
In addi-tion, the situation at Central Suffolk Hospital could be particularly bad, since
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it.is expected to care for. contaminated i
injured persons in the event of a j
Shoreham emergency.
The arrival of a contaminated patient at the hospital, while the staff is attempting to evacuate its other patients to avoid being exposed i
to contamination, is likely to heighten anxiety levels even more.
This paragraph is outside the scope of Contention 72.E,.which it apparently is intended to address.
There is no indication in 72.E that the issue of confusion, anxiety,'and fright is en--
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compassed by the contention.
II.
Testimony of Fred C.'Finlayson, Gregory C. Minor and Edward P. Radford on Behalf of Suffolk County Regarding' Contention 61 The Finlayson-Minor-Radford testimony on Contention 61 (referred to hereinafter as "the Finlayson testimony") marks
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' the fifth time suffolk County has attempted to make an issue of the probabilistic risk assessment of the Shoreham Station.2/
LILCO hereby moves to strike the entire Finlayson written tes-timony as irrelevant and a challenge to the NRC regulations and the law of the case.3/
Contention 61 alleges that the protective action of sheltering cannot be implemented for'Shoreham.
The-essence of 1
the contention is that at any given time some people will have better access to shelter, or access to better shelter, than others.
Moreover, the contention says that sheltering is not 2/
The first time was when the County attempted to get admit-ted a probabilistic risk assessment (PRA) contention in " Phase I" of the emergency planning litigation.
The previous board did not admit the contention.
The second time was when the County submitted testimony by Dr. Finlayson on the issue of ac-cident assessment and dose assessment models in Phase I.
LILCO moved to strike the testimony, but the County's default on the Phase I issues prevented the motion from being ruled on.
The third time was when the County submitted a Phase II contention (Contention 22) on the size of the emergency planning zone.
The parts of the contention relying on probabilistic risk as-sessment were not admitted.
The fourth time was when the Coun-ty submitted testimony from Drs. Finlayson and Radford and Mr.
Minor'on the Phase II Group I issues (Contentions 65, 23.D, and 23.H).
This testimony was struck by Order Granting Motions to Strike Testimony of Fred C.
Finlayson, Gregory C.
Minor and Edward P.
Radford (Jan. 11, 1984).
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The reasons are essentially the same as stated.in LILCO's Motion to Strike the Testimony of. Fred C.
Finlayson, Gregory C.
Minor and Edward P.
Radford on Behalf of Suffolk County Re-garding Contention 65, 23.D, and 23.H, dated November 28, 1983.
That motion has a fuller treatment of the NRC case law than the instant motion.
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. perfect protection:
assuming an average shielding factor of 0.7 (which the LILCO Transition Plan uses), people who shel-
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tered would still receive 70 percent of the dose they would re-ceive if they did not shelter.
Finally, the contention says that there are some circumstances in which people could receive
" health-threatening" radiation doses if they sheltered.
The Finlayson testimony explicitly addresses subparts B, G, H, and I of Contention 61, which are, in summary, the following:
61.B -
People in cars get essentially no protection 61.G -
Many homes will reduce doses about 50 percent, and a 50 per-cent reduction is still a
" health-threatening" dose under some circumstances 61.H -
The LILCO Transition Plan uses an average shielding factor of 0.7, which means that people taking shelter will receive, on average, 70 percent of the dose they would receive if they stayed outside 61.I -
Even with a 30 percent reduction, doses that would cause adverse health effects could be received Also, on page 6 the testimony apparently addresses 61.A, which says that people in wood frame houses with no basements have little shelter available.
The Finlayson testimony on Contention 61 consists essen-tially of the data given in Table 1 (copy attached), plus
. certain numbers in the text that we have summarized as " Table 2,"
attached to this motion.
These data consist of the per-centages of " severe" accidents that would produce radiation doses of certain specified levels at certain distances from the plant.
In short, the County testifies'that, if Shoreham oper-ates, if a " severe" accident occurs, and if people shelter, there are certain specified probabili' ties of receiving certain specified doses at certain specified distances from the plant.
A.
The Finlayson testimony is irrelevant to the resolution of Contention 61 The first reason for striking the Finlayson testimony is that it is irrelevant to anything at issue in this litigation because it is irrelevant to NRC regulations.
It cantat be de-nied that what is at issue in an NRC proceeding is whether a nuclear plant complies with NRC regulations.
All contentions must be read in that context.
Testimony that does not tend to prove compliance or noncompliance with NRC regulations is ir-relevant.
Such is the case with-the Finlayson testimony.
Judging from the "Further Preamble to Contentions.
60-62," Contention 61 alleges that, for the reasons. stated therein, the LILCO Transition Plan does not comply with.10 C.F.R. 5.50.47(a)(1).
This is the general emergency planning.
provision that says a finding must be made that "there is o
. reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency."
The County's legal theory as to why the Finlayson testimony is rel-evant rests on the word " adequate" in 10 C.F,R. 5 50.47(a)(1).
Indeed, the County articulated this theory in its earlier re-sponse to LILCO's motion to strike earlier testimony by Dr.
Finlayson et al.:
Prior to permitting Shoreham to oper-ate, this Board must find that there is reasonable assurance that " adequate pro-tective measures can and will be taken in the event of a radiological emergency."
10 C.F.R. 5 50.47(a)(1) (emphasis supplied).
The Finlayson testimony is directly pertinent to this issue.
Suffolk County contends and proves (through the Finlayson testimony as well as other testimony which has been sub-mitted) that as presently envisioned under the LILCO Plan, evacuation is not an adecuate protective measure because persons attempting to evacuate will be stuck in queues and exposed to health threatening doses of radiation.
- Thus, the Finlayson testimony is relevant to whether the LILCO Plan in fact satisfies the NRC regulations.
Suffolk County Response to LILCO and NRC Staff Motions to Strike the 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.H at 11-12-(December 20, 1983).
Contention 61 also cites the more specific standard in 5 so.47(b)(10), which requires that:
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(10)
A range of protective actions have been developed for the plume expo-sure pathway EPZ for emergency workers and the publir.
Guidelines for the choice of protective actions during an emergency, consistent with Federal guid-ance, are developed and in place, and protective actions for the_ ingestion ex-posure pathway EPZ appropriate to the lo-cale have been developed.
10 C.F.R. i 50.47(b)(10) (1983).
The County's theory here, ap-parently, is that if sheltering is not an " adequate" protective action, then it must be struck from the Plan, in which event the Plan will not have a " range" of protective actions.
The County's testimony attempts to show that, given the assumptions of the probabilistic risk analysis, there are cir-cumstances, of unstated but admittedly very low probability,_in which people could receive doses in excess of certain levels.
But this is relevant only if the County's implicit legal theory is correct -- that an emergency plan is inadequate unless it can guarantee that no one will receive a health-threatening dose of radiation (however " health-threatening dose" is de-fined).
The County's theory is at odds with NRC regulations:
The underlying assumption of the NRC's' emergency planning regulations in 10 CFR $50.47 is that, despite applica-tion of stringent safety measures, a se-rious nuclear accident may occur. -This presumer, that offsite individuals may be-come contaminated with-radioactive mate--
i rial or may be exposed to dangerous lev-l els of radiation or perhaps both.
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. Planning for emergencies is required as a prudent risk reduction measure fcr these individuals.
Since a range of accidents with widely differing offsite conse-quences can be postulated, the regulation does not depend on the assumption that a particular type of accident may or will occur.
In fact, no specific accident se-quences should be specifi,ed 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); see also id. 534-35.
Thus the County is seeking to show that the possibility of radiation exposure, which is assumed by the regulations, shows that the regulations are not met.
A good way to test the relevance of the Finlayson testi-mony is to ask what the legal conclusion would be if every word of the testimony were found to be correct.
The answer is that there would be no light shed on the legal issues at all.
The County is asking the Board to find that the offsite emergency plan is inadequate if the conditional probabilities are as stated in the Finlayson testimony,4/ but the Board simply is 4/ ~ T'o put it another way, the County asks thu Board to find that although (1) the p.lant was sited in compliance with NRC (footnote continued)
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not in a position to make such a finding.
It would be possible for the Commission, by rulemaking, to translate the word "ade-quate" in 10 C.F.R.
$ 50.47(a)(1) into probabilistic dose guidelines such as those in Finlayson Table 1, but there is ab-solutely no guidance by which the Board can do so by adjudica-tion.
The emergency planning rules are "ecsentially de-terministic."
48 Fed. Reg, at 10,775 col. 2 (Mar. 14, 1983).
In response to this motion to strike, we believe Suffolk County will argue, as it did in the Suffolk County Response to LILCO and NRC Staff Motions to Strike the Testimony of Fred C.
Finlayson, Gregory C. Minor and Edward P. Radford on Behalf of i
Suffolk County Regarding Contentions 65, 23.D and 23.H (December 20, 1983), that once Contention 61 was admitted, the Board had obligated itself to hear the Finlayson testimony.
A motion to strike the testimony on the ground that it is not probative of anything that needs to be proved to satisfy NRC regulations, the County's argument goes, is tantamount to a (footnote continued) siting regulations and although (2) all its safety systems meet NRC regulations, nevertheless (3) " adequate" protective actions cannot be taken because, assuming a_" severe" accident at the plant, the probabilities of receiving certain doses at certain-distances are certain specified numbers.
The Board will thus be asked to rule as a matter of law that conditional probabilities the size of those in the County's Table 1 show that sheltering, and thus the emergency plan, is " inadequate."
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motion not to admit the contention, a form of relief LILCO has already been denied.
LILCO believes this argument is wrong.
While it is ad-mittedly hard to imagine testimony that would be relevant to Contentions 61.A, B,
G, H, and I and,also relevant to NRC regu-lations, it is not impossible.
The Board was entitled to give the intervenors the benefit of the doubt at the contention-admitting stage, since it may not then have been possible to categorically determine that nothing the County could say about 61.A, B,
G, H,
and I would be relevant to meeting NRC regula-tions.
But now that the testimony is submitted, the Board is in a position to see that it has no relevance to the regula-tions whatsoever.
The County's testimony, and the County's legal theory, also ignore the fact that, if sheltering produced unacceptable doses, LERO would order evacuation instead, unless the proj-ected dose for evacuation would be greater than the dose for sheltering.
It is irrelevant to testify about what doses would be received with sheltering, if the appropriate protective ac-tion would be evacuation.
Neither the contention nor the tes-timony alleges that LILCO would recommend sheltering when evac-uation would be preferable (that would be a Phase I issue in:
any event), and so the testimony simply addresses sheltering in a purely hypothetical, and irrelevant,.way.
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. In its December 20, 1983, response to LILCO's motion to strike other Finlayson testimony, Suffolk County cited the Fermi case.
Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-82-96, 16 NRC 1408, 1422-29 aff'd,
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ALAB-730, 17 NRC 1057, 1071-72 (1983).
The Fermi board did in-deed consider the probability of a severe release of radiation.
Faced with a contention that a stretch of road was. inadequate as an evacuation route because it ran toward the reactor for a short distance, the Board made an assessment of the likelihood that people using the road would experience a significant in-crease in dose.
The Board concluded:
[W]e find that the use of Pointe Aux Peaux Road as an evacuation route creates only a negligible increase in the total risk to residents of Stony Point.
The increase does not justify building a road leading away from Stony Point toward the west.
16 NRC at 1428.
But Fermi does not detract from the argument in this motion.
In the first place, there is no indication that any party to the Fermi proceeding objected to the use of consequence evidence or raised the issue addressed in'this mo-tion to strike.
Moreover, even assuming the Fermi decision stands for the proposition that PRA evidence may be relevant to some emergency planning issues, it is distinguishable.
The Fermi board assessed possible radiation doses in order to eval-uate_ alter. native protective actions, one of which was
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. apparently alleged to increase, not decrease, radiation expo-sure.
(The alternatives were apparently to use Pointe Aux Peaux Road or to build another road.)
It may have been that no party suggested any way to choose between the alternatives ex-cept to calculate some doses for the,one alternative and see if the results could be bettered by the other alternative and whether the probabilities made the other alternative worth the while.
In Suffolk County's Contention 61, on the other hand, the County alleges simply that the protective action of chel-tering is categorically inadequate because, assuming it is the only alternative available, it will not guarantee protection against doses above certain levels.
B.
The testimony is a challenge to NRC regulations and to the
" law of the case" The County's effort once again to introduce the probabilistic risk assessment into this proce'eding is a chal-lenge both to the NRC regulations and to the lawEof the case.
First, it is a challenge to NRC regulations because the Commis-sion has expressly declined to use probabilistic risk criteria to license nuclear power plants:
The qualitative safety goals and quanti-tative design objectives contained in the Commission's Policy Statement.will not be used in the licencing process or be in-terpreted as requiring the performance of probabilistic risk assessments by
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. applicants or licensees during,the evalu-ation period.
The goals and objectives are also not to be litigated in the Com-mission's hearings.
The Staff should continuo-to use conformance of regulatory requirements as the exclusive licensing basis for plants.
48 Fed. Reg. at 10,775 col. 2 (March 14, 1983).
If the Commis-
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sion does not want its own probabilistic risk goals and objec-tives to be litigated in ASLB hearihgs, all the more does it not want the County's probabilistic criteria (whatever they are) to-be litigated in the context of_ emergency planning..
l Moreover, the law of the case in this' proceeding is that.
LILCO's probabilistic risk assessment is not to be litigated unless LILCO tries to rely on it,.which LILCO has not.done.
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 clearlthat LILCO does not plan to rely on its.PRA as evidence.that-i l
its accident' assessment and. dose assess -
ment models meet NRC requirements.
We therefore do!not'see the need to litigate r
L LILCO's PRA in these circumstances,.
I unless LILCO attempts to rely upon its PRA'in either its direct or rebuttal tes-
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.timony on'this contention..
-We do not believe'that?thih:conclu-sion prejudices intervenors'1 rights in l
any way.
'As was noted above, Suffolk County has' conceded that.a PRA per'se is i
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. 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 " thera is no evi-dence of other means, if any, used by LILCO to ensure the accuracy of the as-sessment models."
Therefore, if LILCO 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.
The probabilistic risk assessment for the Shoreham plant on which the County has been relying, and on which it presuma-bly relies in the Finlayson testimony,5/ was a draft.
The draft was revised and submitted to the NRC by LILCO and is now under NRC Staff review.
It is altogether separate from this licensing proceeding, and not properly litigable in it.
C.
Health Effects In addition to the above reasons for striking all the Finlayson-Minor-Radford testimony, the Board should strike the following part of the testimony, on page 4, sponsored by Dr.
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Radford:
5/ _ The Finlayson testimony is: silent about the basis.for the numbers it recites.
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(Radford)
A 30 rem dose is con-sidered the threshold of early injuries.
People who receive 30 rem doses will probably not experience any acute effects (i.e.,
deaths or injuries occurring with-in 60 days after exposure), but their lifetime chances of developing cancer will increase by about 2L percent over the normal rate.
Doses above 30 rem are more likely to cause early acute effects and result in even greater increases in the chances of developing cancer.
Finlayson testimony at 4.
The purpose of emergency planning is to achieve dose savings.
The means for doing so can and should be litigated without becoming enmeshed in the generic issue of the health effects of particular doses.
For the above reasons, the entire written testimony of Drs. Finlayson and Radford and Mr. Minor should be struck as irrelevant.
III.
Direct Testimony of Robert W.
Petrilak on Behalf of Suffolk County Regarding Contentions 24.E, 24.N, 61.C, 69, 70 and 71 LILCO moves to strike the following portions of the "Di-rect Testimony of Robert W.
Petrilak on Behalf of Suffolk Coun-ty Regarding Contetions 24.E, 24.N, 61.C, 69, 70, and 71":
page 14, the third sentence from the top of the page; and page 14, the last four lines at the bottom of the page, through page 15, the end of the first paragraph.
I
. First, LILCO moves to strike the following sentence from the Petrilak testimony:
Indeed, as I noted in my testimony con-cerning Contention 25, we would have fewer personnel than normal available due to role conflict.
(Page 14, third sentence.)
This testimony is cumulative to testimony previously filed in this proceeding on Contention 25 and therefore should be struck.
Second, LILCO moves to strike the following paragraph from the Petrilak testimony:
Finally, as Contention 71.A asserts, it is unlikely that LILCO's proposal to
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use its own personnel to evacuate nursery schools could be implemented.
For exam-plc, the Mt. Sinai School District is'not authorized to, nor would it, permit anyone to drive a bus containing our stu-dents unless that person was licensed and certified to drive a school bus.
My un-derstanding is that LILCO's employees are not properly certified.
Consequently, it
'is unlikely that any nursery schools or parents of nursery school children would permit their children to be evacuated by LILCO bus drivers.
(Petrilak testimony at 14-15.)
Mr. Petrilak, as Vice President of the Mt. Sinai Board of Education and as a witness put for-ward as a factual rather than expert witness, is not qualified
~
to testify regarding nursery schools.
He has not shown any fa-miliarity with or connection to any of the nursery schools within the EPZ, and he does not claim to represent the nurseryL o
i
. schools in his or ar.y other school district.
His speculation on whether nursery schools would allow their children to be driven by LILCO personnel to a safe place during in evacuation is unreliable and therefore not admissible evidence in this I
proceeding.
Consequently, his testimony regarding nursery schools on pages 14-15 should be struck.
IV.
Direct Testimony of Dr. George J.
Jeffers and Anthony R.
Rossi on Behalf of Suffolk County Regarding Contentions 24.E, 24.F, 61.C, 69, 70 and 71 i
LILCO moves to strike page 5, footnote 2, and the first paragraph of page 9 of the " Direct Testimony of Dr. George J.
Jeffers and Anthony R.
Rossi on Behalf of Suffolk County Re-garding Contentions 24.E, 24.F, 61.C, 69, 70 and 71."
First, LILCO moves to strike the following paragraph:
In addi tion, although none of the schools in our district are within the EPZ, some are very close to the EPZ boundary.
When one looks at the irregu-lar path followed by the EPZ boundary through the Middle Country Central School District, it looks as if.the boundary were drawn intentionally to keep some of our school buildings outside the.EPZ.
Accordingly, it is not clear to us that a sheltering order for persons "in the EPZ" should not also apply to the children in our schools that'are very close.to'the EPZ boundary.
Jeffers and Rossi testimony p._5, n.2.
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4 This testimony is offered in support of Contention 61.C.1, which, by the County's own witnesses' description, "as-serts that LILCO's proposals to protect school children by
)
keeping them in their schools would not work."
The speculation in the above-quoted footnote 2 regarding the way the EPZ bound-ary was chosen, the proper EPZ boundary from the witnesses' viewpoint, and the appropriateness of protective actions for persons outside the EPZ boundary is not within the scope of Contention 61.C.1 or any of the other contentions upon which Dr. Jeffers and Mr. Rossi are testifying.
Therefore, it is ir-relevant and should be struck.
Second, LILCO moves to strike the first paragraph of page 9 of the Jeffers and Rossi testimony, which states as fol-lows:
The take home process would likely be slowed still more by both the. heavy evac-uation traffic expected by other witness-es for the County and New York State, and the staffing shortages which would proba-bly result from role conflict among school personnel.
[ Citation omitted.]
These references to evacuation time estimates and role conflict are outside the scope of Contention 69.C and are cumulative to the testimony on traffic and role conflict already filed in this proceeding.
Therefore, this paragraph should be struck.
r I
. V.
Direct Testimony of Nick J. Muto and J. Thomas Smith on Behalf of Suffolk County Regarding Contentions 24.E, 24.F, 24.N, 61.C, 69, 70, and 71 LILCO moves to strike the second full paragraph on page 12 of the " Direct Testimony of Nick J. Muto and J. Thomas Smith on Behalf of Suffolk County Regarding Contentions 24.E, 24.F, 24.N, 61.C, 60, 70 and 71," which provides:
Fourth, Contention 71.A is correct when it asserts that LILCO's proposed evacua-tion of nursery schools using its own personnel could not work.
There are es-tablished criteria that individual bus drivers must meet before they can be cer-
-tified as school bus drivers.
And then the employment of the drivers must be ap-proved by individual school. districts.,
It is our understanding that LILCO's em-ployees are licensed to drive buses but not certified to drive school buses.
Therefore, school administrators including, to our knowledge, the adminis-trators of nursery schools, would not be authorized to permit their school chil-dren to be transported in buses driven by such persons.
Dr. Muto and Mr. Smith are not qualified to testify regarding the private nursery schools and whether they would or would not permit their school children to be transported in buses driven by LILCO personnel.
These gentlemen are not being put forward as expert witnesses but rather as fact witnesses.
There has been no showing that they are connected in any way with the l
. private nursery schools in the 10-mile EPZ.
Therefore their testimony regarding what nursery schools would or would not do is not reliable and is not admissible evidence in this proceed-ing.
VI.
Direct Testimony of Gregory C. Minor on Behalf of Suffolk County Regarding Contentions 85 and 88 LILCO moves the Board to strike portions of the "Testi-mony of Gregory C. Minor on Behalf of Suffolk County Regarding Contentions 85 and 88" (the Minor testimony), because they are beyond the scope of Contentions 85 and 88 and, therefore, not relevant to issues being litigated under these contentions.
A.
Contention 85 LILCO moves to strike the following portions of the Minor testimony on Contention 85 at pages 3-6:
Q.
Why is the provision of the LILCO Plan referenced in Contention 85 contrary to the requirements of NUREG-0654 Section II.M as stated in that Contention?
A.
First, Criterion 1 of-Soction II.M states that the responsible organization (in this case, LILCO), "shall develop general. plans and procedures.for reentry..
and recovery and describe the means by which decisions to relax protective mea-sures are reached" considering.
both existing and potential conditions.
The LILCO Plan does not include even a.
general plan for recovery or reentry.
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First, the Plan at 3.10-1 states that "a Recovery Action Committee will be appointed.
" and that the Committee j
"will.
. plan and implement actions for the restoration of the affected areas to their pre-emergency conditions."' This does not constitute a plan for recovery; it is merely a plan for the creation of a 4
committee whose charter will presumably include planning for and implementing re-covery actions.
Second, Criterion 1 states that the 2
plan shall describe the means for making i
a decision to reenter.
On this subject, however, LILCO's OPIP 3.10.1 (at p. 3)
J only states that the Radiation Health Coordinator wi?1 " compare the results of the surveys with the guidance contained j
in Attachraant 1 (for reentry)."
Attach-l ment 1 1:.sts four. categories-of nuclides, a
each containing numerous isotopes, and 3 criteria levels for each category.
The Plan contgins no description of the means by which pne would or could use these data, individually or collectively, to make a decision concerning reentry. _OPIP.
]
3.10.1 goes cn1 to state that the Radia-tion Health Coordinator will " advise the Manager of Local Response as to the re-suits of the-surveys andfthe indicated-actions" (OPIP 3.10.1 at section i
5.3.1.d), and that "the Director of Local Response will authorize the initiation of i;
the re-entry operation."- This does not-constitute a' description of "the means by which decisions are reached"; it is.
merely'an assertion that a decision will be'made by a particular person.
4
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Simi1arly,: OPIP 3.10-1 at pages-4-4a' states that the Manager-of~ Local Re-sponse,:who isi to be:the' chairman"of the
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4 Recovery Action Committee, " ensures"1that
.. surveys of contaminated areas are con-ducted "to determine the-means'of
' decontamination oriother dispositioni" It again_. fails to describe.any'of the-l.
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. means of decontamination or disposition which will be considered, or any criteri-on to be used in deciding between or among them.
Third, Criterion 4 of NUREG 0654 Section II.M states that "Each plan shall establish a method for periodically estimating total population exposure."
However, the recovery and reentry sec-tions of the LILCO Plan do not establish such a method.
The Plan at page 3.10-2 states that the Recovery Action Committee
" ensures establishment of an organization to estimate total population exposure on a continuing basis."
The procedure states that "Either the Radiation Health Coordinator of the U.S. Environmental Protection Agency Office of Radiation Programs in accordance with their FRMAP assessment function estimates total popu-lation exposure."
(OPIP 3.10.1, section 5.3.8 at page 3a).
However, neither the Plan nor the procedure describes how the 4
estimates will be accomplished, what areas will be covered, or what data will be used to make the estimate.
In other words, although the procedure says who LILCO expects will do it, it fails to es-tablish the method for estimating the total population exposure as required by NUREC 0654 Sect. ion II.M.4.
Q.
Please summarize your conclusion with regard to Contention 85.
A.
I conclude that Contention 85 is valid.
The.LILCO Plan and implementing procedures fail to include the components of a general plan for recovery and reen-try as identified in NUREG 0654.
Testimony of Gregory C. Minor at 3-6.
The testimony cited above is beyond the scope of Conten-tion 85.
Contention 85 raises the issue of the existence of
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1 1 any recovery and reentry plans in LILCO's Emergency Plan.
Spe-cifically, Contention 85 maintains that the LILCO Plan " pro-vides merely that planning for recovery and reentry will com-mence after the appointment of the Recovery Action Committee; i
at this time, no such plan exists."
Mr. Minor's testimony, however, does not question the existence of recovery and reen-4 try plans in LILCO's Emergency Plan, but rather "the adequacy of the LILCO Plan with respect to recovery and reentry.
Testimony of Gregory C. Minor at 1.
Contrary to the allegations of Contention 85, Mr. Minor expressly acknowledges that LILCO has developed recovery and reentry plans.
Specifically, he states:
Recovery and reentry are discussed in '
Section 3.10 of the LILCO Plan, pages 3.10-1 and 3.10-2.
The implementing pro-cedures for recovery and reentry are contained in OPIP 3.10.1 "Recov-ery/ Reentry," which refers to Attachment 1 of OPIP 3.6.6 " Ingestion Pathway Pro-tective Actions."
Testimony of Gregory C. Minor at 3.
Mr.. Minor's testimony, however, seeks to broaden the scope of Contention 85 in as-serting that LILCO's recovery and reentry plans and procedures require additional elaboration.
As such, his testimony is not responsive to Contention 85 and therefore should be struck.
J 9
e
o l B.
Contention 88 LILCO also moves to strike the underlined portion of the following testimony on Contention 88, because it is outside the scope of the contention and therefore irrelevant.
In addition, LILCO's Plan and imple-menting procedures provide no guidance as to how to conduct a cost-benefit analysis for temporary reentry of an area, and thus do not include a description of the means by which a decision regarding temporary reentry could or would be made as required by NUREG 0654 Section II.M.1.
Testimony of Gregory C. Minor at 7-8.
The only reference in Contention 88 to temporary reentry is the statement that "[t]he Plan calls for cost benefit analy-sis based on a $1,000/ person-rem during tempore.ry reentry (OPIP 3.10.1 at 5), but provides no guidance on how to analyze a sit-uation in order to be able to apply this criterion."
The es-sence of the contention is that the Plan does not provide guid-ance about how to apply the $1,000/ person-rem criterion.
The testimony cited above, however, goes beyond the issue whether the Plan provides guidance as to the application of the
$1,000/ person-rem criterion.
It shifts the focus improperly from cost-benefit analyr.is, the subject of Contention 88, to the broader issue whether the Plan describes, generally, the basis for a decision regarding temporary reentry.
_The testimo-ny, _therefore, is beyond the scope of Contention 88 and should' be struck.
. i CONCLUSION i
1 k
For the above stated reasons, each of the-cited portions of the County's testimony, including the entire written testi-mony of Dr. Finlayson et al.,
should be struck.
4 Respectfully submitted, LONG ISLAND LIGHTING COMPANY BY tFM mes N. Christman athy E.
B. McCleskey 4
Renee R.
Falzone l
Hunton & Williams l
P.O. Box 1535 707 East Main Street Richmond, VA 23219 DATED:
March 27, 1984 3
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1
LILCO, March 27, 1984 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S MOTION TO STRIKE j.
PORTIONS OF THE " GROUP II-B" TESTIMONY OF SUFFOLK COUNTY were served this date upon the following by first-class mail, post-age prepaid or, as indicated by an asterisk, by Federal Ex-press:
James A.
Laurenson,*
' Secretary of the Commission i
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 Commi.ssion 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-West Tower, Rm. 427 Washington, D.C.
-20555 4350 Ea'st-West Hwy.
Bethesda, MD 20814 Bernard.M. Bordenick,.~Esq.*
David.A.:Repka, Esq.
~
Mr.-Frederick J. Shon*
Edwin J. Reis,- Esq.
Atomic Safety and Licensing-
.U. S.1 Nuclear Regulatory ~
Board'
' Commission-
!~
U.S. Nuclear Regulatory'
-7735 Old Georgetown Road.
l Commission (to mailroom)'
East-West Tower, Rm. 430 Bethesda, MD.
20814 4350_ East-West Hwy.
.Bethesda, MD 20814 i
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___.m
.._..m._
9
. Eleanor L.
Frucci, Esq.*
Stewart M. Glass, Esq.*
Attorney Regional Counsel Atomic Safety and Licensing Federal Emergency Management Board Panel Agency U.
S.
Nuclear Regulatory 26 Federal Plazl, Room 1349 Commission New York, New York 10278 East-West Tower, North Tower 4350 East-West Highway Stephen B. L'atham, Esq.*
Bethesda, MD 20814 Twomey, Latham & Shea 33 West Second Street Fabian G.
Palomino, Esq
- P.O.
Box 398 Special Counsel to the Riverhead, New York 11901 Governor Executive Chamber Ralph Shapiro, Esq.*
Room 229 Cammer & Shapiro, P.C.
State Capitol 9 East 40th Street Albany, New York 12224 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 I
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,JD.C.
20472 l
Agency Building 2
}
Empire State Plaza Ms. Nora.Bredes I
Albany, New York 12223 Executive Coordinator l
Shoreham opponents' Coalition l
.195 East Main Street-l
.Smithtown, New York 11787 i
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e e
I Gerald C. Crotty, Esq.
Martin Bradley Ashare, Esq.
Counsel to the Governor Suffolk County Attorney Executive Chamber H.
Lee Dennison Building State Capitol Veterans Memorial Highway Albany, New York 12224 Hauppauge, New York 11788 f;f,
W James N. Christman i
Hunton & Williams 707 East Main Street l
P.O. Box 1535 j
Richmond, Virginia 23212 DATED:
March 27, 1984 e
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TABLE 1 o
m N
.4 TYPE OF SilELTER CIIANCES OF RECEIVING IIEALTl! TilREATENING DOSES *
(Shielding Factors)
AT GIVEN DISTANCES FROM Tile PLANT W 30 Rem
>,10 0 Rem
>, 2 00 Rem l-2 mi.
10 mi.
1-2 mi.
10 mi.
1-2 mi.
LILCO Average for 30%
12%
9%
~ 1%
2%
- Long Island flousing (0.7 cloud, 0.2 ground)
Wood Frame 30%
15%
20%
1%
2%
without Basement
~(0.9l cloud, 0.4 ground) 30%
8%
5%
<1%**
1%
Masonry or Brick 1/2 with Basement (0.5 cloud, 0.1 ground)
Vnhicles.
35%-
15%
( 1%
(1.0 cloud,10.7 ground)
.9
- Calculated for a 12 hour1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> exposure except for vehicles where 2 hrs. exposure was used oo 1%' chance of doses exceeding 100 rems at 5 miles 9
0 0
h
?'
C
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1 TABLE 2 Contention 30 rems 100 rems G.
!!asonry houses with and without basements (0.5 shielding factor) 8 mi 8%
5 mi 1%
2 mi 5%
I.
0.7 avg. cloud shielding factor, 0.2 ground dose shielding factor
~3 10 mi 12%
9 mi 1%
2 mi 9%
A.
Wood frame house without basement (0.9 shielding factor), 0.4 ground dose shielding factor 10 mi 15%
1%
2 mi 5%
Range 10 mi 8-15%
2 mi 5-20%
Vehicle, 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> 10 mi 15-35%
- -