ML20138H270
| ML20138H270 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/23/1985 |
| From: | Kelley E, Latham S, Palomino F NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#485-925 OL-3, NUDOCS 8510280519 | |
| Download: ML20138H270 (109) | |
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! _. ' UNITED STATES OF AMERICA NUCLEAR REGULATORY. COMMISSION
- Before the Atomic' Safety and-Licensing Appeal Board.
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__ . __ )-
' In the" Matter of~ -)
)
e ~LONG ISLAND LIGHTING COMPANY ) Docket:No. 50-322-OL-3
) -(Emergency Planning
- (Shoreham Nuclear Power Station, ) Proceeding)
Unit 1). )
)
)
- SUFFOLK COUNTY, STATE'0F _NEW YORK,- AND 'IWN OF SOUTHAMPT0k
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BRIEF ON APPEAL 0F LICENSING BOARD APRIL 17, :1985 PARTIAL INITIAL DECISION ON EMERGENCY PLANNING i * ,
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October 23, 1985 O
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7L l 4 TABLE OF CONTENTS ff.
IN ID gg~ _
I. INTRODUCTION 5: MT 23 # # [
p r c r.
II. PROCEDURAL ERRORS \ 7,7 43
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A. Denial of Contentions h,27
! ng , y w:x, s' '
! 1. The ASLB Erred in Denying Admission i of Contention 22 7 l
j 2. The ASLB Erred in Denying Admission i of Contention 26.B 13
- 3. The ASLB Erred in Denying Admission of the
- Proposed Contention on the LILCO Labor Strike 15 l B. The ASLB Erred in Denying Discovery Against FEMA 20 III. ERRORS IN THE ASLB'S PARTIAL INITIAL DECISION 23 4
! A. Schools (Contentions 24.E, 24.F, 24.M, 61.C, and 68-71) 23
- 1. The ASLB Ignored the Overall Lack of l School Preparedness 24 1
- 2. Other Errors in ASLB School Rulings 30
-B. Special Facilities (Contentions 24.G, 24.J, 24.K, 24.N, 60, 63, and-72) 34
{
i 1. Lack of Agreements with Special Facilities (Contention 24.J) 34 3
- 2. No Criteria for Recommending Protective i
Actions for the Radiosensitive (Contentions 60 and 63) 35
- 3. No Planning for Evacuation of Hospital Patients (Contentions 24.G, 24.K, 60, 63, 72.D and 72.E) 36 l
l 4. No Relocation Centers for Hospitals j (Contentions 24.N and 72.C) 39 i
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! 5. No Planning for Sheltering Hospital j Patients (Contention 72.D) 40 C. Credibility and the Evacuation Shadow ;
1 Shadow Phenomenon (Contentions 15 and 23) 41
- 1. LILCO's Lack of Credibility (Contention 15) 41
- 2. The Evacuation Shadow Phenomenon (Contention 23) 47 1
- 3. The ASLB Erred in Ignoring the Regulatory j Standards on Contentions 15 and 23 53 i D. Role Conflict (Contention 25) 54 4
! 1. The ASLB Erred in Refusing to Admit Teachers' Testimony 57 i
, 2. The ASLB Erred in Refusing to Admit Survey l Evidence on Trained Emergency Workers 58
- 3. The ASLB Ignored Evidence in the Record 60 E. Sheltering (Contention 61) 62 j F. Evacuation (Contentions 65, 23.D, 23.H. 66, 67.C, 72.A, and 73.B.4) 64
- 1. The ASLB Erred in Excluding Key Evidence 64
- 2. The ASLB Erred in Rejecting Evidence on the Ground That It Was " Qualitative" Rather l Than " Quantitative" 66
- 3. The ASLB Erred in Ignoring Relevant and Probative Evidence on Route Deviation 70 1
l 4. The ASLB Erred in Rejecting Appellants'
- Evacuation Time Estimates 72 i 5. The ASLB Erred in Its Consideration l
of Certain Experts' Testimony 75
- 6. Other ASLB Errors on Evacuation Issues 77 i
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-G. Insufficient Number of Buses for Evacuation of the Non-Automobile Owning Public (Contention 24.F.2) 79 H. Mobilization of Emergency Workers (Contention 27) 82 l I. Notification of Emergency Personnel and the Public (Contentions 26, 24.T and 55-59) 84
- 1. The ASLB Erred in Ignoring Regulatory Requirements Governing Notification
- of Emergency Workers and the Public 85
- 2. The ASLB Erred in Finding Provisions Adequate for Notification of Boaters 87
. J. Communications (Contentions 24.L and 28-34) 87 K. . Training (Contentions 24.S, 39-41, 44, and 98-100) 91 L. Ingestion Pathway Protective Actions ,
(Contentions 81 and 24.R) 93
- 1. The ASLB Erred in Ignoring LILCO's Inability j to Impose Ingestion Pathway Protective Actions 93
- 2. The ASLB Erred in Approving a Connecticut Plan Never Even Submitted for Review 95 M. Recovery and Reentry (Contention 85) 97 [
IV. CONCLUSION 99 i
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TABLE OF AUTHORITIES CASES Aberdeen & Rockfish Co. v. U.S.,
565 F.2d 327 (5th Cir. 1977). . . . . . . . . . . 33 Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981) . . . . . . . . . . . . 33, 71 Great Lakes Screw Corp. v. NLRB, 409 F.2d 375 (7th Cir. 1969). . . . . . . . . . . 33 U.S. v. Lambert, 589 F. Supp. 366 (M.D. Fla. 1984) . . . . . . . . . 3 ADMINISTRATIVE DECISIONS Cincinnati Gas & Electric Co.
(Zimmer Nuclear Power Station, Unit 1), ALAB-727, 17 NRC 760 (1983) . . . . . . . 28, 31, 35, 38-39, 41, 59, 60, 63, 81 Cincinnati Gas & Elec. Co.
(Zimmer Nuclear Power Station, Unit 1), LBP-82-48, 15 NRC 1549 (1982) . . . . . . 28 Consolidated Edison Co.
(Indian Point, Units 2 and 3),
LBP-83-68, 18 NRC 811 (1983) . . . . . . . . . . . 28, 31, 93 Consumers Power Co.
(Big Rock Point Plant),
LBP-82-77,16 NRC 1096 (1982). . . . . . . . . . . 31, 35, 98 Consumers Power Co.
(Big Rock Point Plant),
LBP-83-44, 18 NRC 201 (1983) . . . . . . . . 31
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4 Duke Power Co. (Catawba Nuclear Station, Unit 1), LBP-84-37, 20 NRC 933 (1984). . . . . . . 10, 11-12, 51, 72 Houston Lighting and Power Co.
(Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542 (1980) . . . . . . . 20 Ksnsas Gas & Electric Co.
(Wolf Creek Generating Station, Unit 1),
LBP-84-26, 20 NRC 53 (1984). . . . . . . . . . . 39-40 Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333 (1984). . . . . . . 20, 22 Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1),
! ALAB-780, 20 NRC 378 (1984). . . . . . . . . . . . 20 Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1),
ALAB-788, 20 NRC 1102 (1984) . . . . . . . . . . . 10 Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1),
ALAB-818, slip op. (October 18, 1985). . . . . . 29, 32, 83, 97 Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1)
LEP-82-19, 15 NRC 601 (1982) . . . . . . . . . . . 4, 8, 11 Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1)
LBP-82-75, 16 NRC 986 (1982) . . . . . . . . . . . 13 Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit 1), LBP-81-59, 14 NRC 1211 (1981) . . . . . . 28-29, 32, 35, 41, 93 Mississippi Power and Light Co.
(Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423 (1973) . . . . 20 Pacific Gas & Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-580, 11 NRC 227 (1980). . . . 26
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Pacific Gas & Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819 (1984) . . . . . . . . . . . . .. . . . . . . . . 12 Pennsylvania Power & Light Co.
! (Susquehanna Steam Electric Station, Units 1 and 2), LBP-82-30,15 NRC 771 (1982) . . . 24-25, 28, 29, 35, 93 Philadelphia Electric Co.
(Limerick Generating Station, Units 1 and 2), LBP-84-31, 20 NRC 446 (1984) . . . . . . . 63 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),
- ALAB-442, 6 NRC 33, 40-42 (1977) . . . . . . . . . 26 i Southern California Edison Co.
(San Onofre Nuclear Generating Station, Units 2 & 3), CLI-83-10, 17 NRC 528 (1983) . . . . 63 Southern California Edison Co.
(San Onofre Nuclear Generating Station,
} (1982) . . . . . . . . . . . . . .. . . . . . . . 7, 12, 63
, UNPUBLISHED SHOREHAM ORDERS Prehearing Conference Order, July 27, 1982. . . . . . . 14 i
Special Prehearing Conference Order, August- 19, 1983. . . . . . . ... . . . . . . . 7, 8, 11, 13 i
! Order Ruling on Objections to Special Prehearing Conference Order,
- Sept. 30, 1983 . . . . . . . . .. . . . . . . . . 7 I
l Order Confirming Changes in Schedule with Regard to " Group II" Contentions i and Rulings on Motions to Strike, Dec. 2, 1983 . . . . . . . . . ... . . . . . . . 57, 58-59 Order Granting Motions to Strike the Testimony of Fred C. Finlayson,
- Gregory C. Minor and Edward P. Radford,
! Jan. 11, 1984. ... . . . . . .. . . . . . . . . 65 l
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j ASLB Memorandum and Order Ruling on Suffolk County Motion to Compel Production of Documents by FEMA, May 18, 1984. . . . . . . . . . 20, 22 l Memorandum and Order Determining that a l l Serious Safety Matter Exists,
, July 24, 1984. . . . . . . . . . . . . . . . . . . 17, 18 ,
Memorandum and Order Denying Motion of Suffolk County to Admit New Contention, Sept. 7, 1984. . . . . . . . . . . . . . . . . . . 16, 18, 19, 20 l
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, REGULATIONS 10 CFR $ 2.714(a)(1). . .. . . . . . . . . . . . . . . 18 10 CFR $ 50.47(a)(1). . . . . . . . . . . . . . . , . . 4, 6, passim 10 CFR S 50.47(b)(1). .. . . . . . . . . . . . . . . . 54, 62 10 CFR S 50.47(b)(3). . . . . . . . . . . . . . . . . . - 31, 54, 62, 84
, 10 CFR 5 50.47(b)(10) . . . . . . . . . . . . . . . . . 36, 37, 39, 95 1
10 CFR 5 50.47(b)(13) . . . . . . . . . . . . . . .. . 97, 98 i
10 CFR S 50.47(b)(15) . . . . . . . . . . . . . . . . . 92-93 I 10 CFR S 50.47(c)(2). . .. . . . . . . . . . . . . . . 4, 7, passim 10 CFR Part 50, Appendix E, Section IV.D.3. . . . . . . 84 NUREG-0654 $ II.A.3 . . . . . . . . . . . . . . . . . . 31, 34, 39-40 i
NUREG-0654 $ II.E.2 . . . . . . . . . . . . . . . . . . 84 NUREG-0654 $ II.E.6 . . . . . . . . . . . . . . . . . . 84 I
1 NUREG-0654 5 II.F.1.e . . ... . . . . . . . . . . . . 84 i NUREG-0654 5 II.G.3.c . .. . . . . . . . . . . . . . . 46 l
l NUREG-0654 5 II.H.4 . . . . . . . . . . . . . . . . . . 84 l
NUREG-0654 $ II.J.9 . . . . . . . . . . . . . . . . . . 36, 37 i
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NUREG-0654 5 II.J.10. . . . . . . . . . . . . . . . . . 39 NUREG-0654 6 II.J.10.d. . . ... . . . . . . . . . . . 39-40 NUREG-0654 5 II.J.10.h. . . . . . . . . . . . . . . . . 39-40 I NUREG-0654 6 II.J.10.k . . . . . . . . . . . . . . . . 78 NUREG-0654 5 II.J.10.m. . . . . . . . . . . . . . . . . 36 NUREG-0654 6 II.J.11. . . . . . . . . . . . . . . . . 93, 94 NUREG-0654 $ II.M . . . . . . . . . . . . . . . . . . 97, 98 NUREG-0654 9 II.O.4 . . . . . . . . . . . . . . . . . . 92-93 NUREG-0654, Appendix 3. . . . . . . . . . . . . . . . . 84, 87
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8 x UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic' Safety and Licensing Appeal Board j k
)
In the Matter of )
, ) l LONG I.SLMG) LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning j (Shoreham Nuclear Power Station, ) Proceeding)
Unit 1) )
)
)
I s
]
j SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON
- BRIEF ON APPEAL OF LICENSING BOARD APRIL 17, 1985 i PARTIAL INITIAL DECISION ON EMERGENCY PLANNING i I. INTRODUCTION Suffolk County, the State of New Yor! , and the Town of Southampton i
l- (" Appellants") submit this brief on appeal from the ASLB's April 17, 1985 1
! Partial Initial Decision on Emergency Planning ("PID"), 21 NRC 644. The ASLB's errors were numerous; many are discussed in the body of this brief. >
4 4
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$ This brief does not address all the errors committed by the ASLB i because the Appeal Board's 100-page limit has prevented that. Never-j theless, Appellants submit that the Board's review of the instant brief
- will show that as concise a workproduct as possible has been prepared.
? Given this situation and the importance of assuring that no significant error in the ASLB's decision escapes the appellate review process, 4
Appellants hereby respectfully move the Board to permit Appellants
- reasonable time to submit a supplemental brief of no more than 20 pages i
to deal with errors we were unable to include herein, for example on issues relating to evacuation of the transit-dependent population I
(Contention 67) and identification and notification of the handicapped and the deaf (Contention 73).
I
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This appeal is taken from an ASLB decision which found LILCO's emergency plan to be in compliance with various elements of Section 50.47 of the NRC's regulations. The decision is laden with errors; some were caused by the ASLB's failure to interpret or apply regulations correctly, others by the ASLB's failure to give deserved weight to the testimony of Appellants' expert witnesses, and still others by the ASLB's exclusion of relevant probative evidence. Appellants' bases for requesting this Board (1) to reverse the ASLB's decision on specific issues in controversy, and (2) either to enter judgment on such issues for Appellants or to remand the matters to the ASLB for further proceedings consistent with the Appeal Board's determinations, are set forth below.
At the outset, we believe it would be useful to highlight several examples of errors made by the ASLB in order to provide a general framework for the specific issues briefed below. First, as a whole, the evidence of record can be divided basically into testimony of two qualities, the more probative clearly being that presented by Appellants.
Suffolk County and New York State sponsored witnesses whose testimony resulted from expertise based on extensive, hands-on personal experiences. These witnesses were police officers and other governmental officials whose professional responsibilities and on-the-job ictions 1
include dealing with the very kinds of factual and emergency matters on which they testified. To give even greater strength to that evidence, the testimony of these governmental witnesses was complemented by distinguished experts whose analyses and scientific surveys fortified Appellants' case.
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! LILCO and the Staff, on the other hand, did not produce testimony of
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experts based on expertise derived from actual experiences comparable to j those of Appellants' witnesses. Instead, the Staff's and, for the most i l
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part, LILCO's experts proffered opinions based on largely second-hand
] observations or hypothetical theories. Despite this clear distinction that elevated the quality of Appellants' evidence above that of LILCO and !
the Staff, the ASLB repeatedly took the testimony of the LILCO and Staff witnesses at face value, failing to assess it critically and adopting it, while rejecting the more probative evidence presented by Appellants.
I
- This was not only arbitrary action by the ASLB, it was legally impermissible. As the courts have stated:
[I}n assessing the weight to be given the testimony of various witnesses, the court must give substantial deference to the well reasoned conclusions of those Government witnesses who are officials charged by law with administering the provisions of [their enabling legislation].
l
, U.S. v. Lambert, 589 F. Supp. 366, 370 (M.D. Fla. 1984). Had the ASLB l
1 followed this stricture, it would have fairly evaluated the testimony of l Appellants' witnesses and consistently found for Appellants on the issues l
j in controversy.
i Second, on a fundamental question -- the determination of the size
! and configuration of the EPZ -- the ASLB broadly precluded Appellants i
from presenting compelling probative evidence. Indeed, the ASLB would i
i not even admit for litigation Appellants' Contention 22, which alleged ,
that LILCO failed to establish its EPZ based on the actual local I
conditions prevailing on Long Island -- that is, the very conditions of f
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" demography, topography, land characteristics, access routes, and jurisdictional boundaries" required to be addressed by Section 50.47(c)(2) of the regulations.
NRC regulations mandate that these local conditions be considered in fixing the " exact size and configuration" of the EPZ. Appellants were prepared to put forth probative evidence on this precise matter and, by law, LILCO was required to prove that it had taken such local conditions into consideration in establishing its EPZ. The ASLB, however, rejected Appellants' efforts, and in so doing also abruptly retreated from its 1982 statement that even if no contentions were filed concerning the size and configuration of the EPZ, the ASLB itself would pursue this important issue. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-19, 15 NRC 601, 618-19 (1982).
The ASLB claimed that Contention 22 constituted a " challenge" to NRC regulations. That is not so. Contention 22 neither challenged nor sought to modify any NRC regulation. Instead, the contention faithfully tracked the plain requirements of Section 50.47(c)(2) of the regulations and put into controversy LILCO's failure to comply with that regulation.
In effect, the ASLB's rejection of Contention 22 struck Section 50.47(c)(2) from the books.
Third, in significant instances, the ASLB failed to make findings in accordance with the legal standard required by NRC regulations. Section 50.47(a)(1) permits the ASLB to approve LILCO's Plan only upon a finding that there is reasonable assurance that LILCO's proposed protective actions are " adequate" and "can and will" be implemented. Repeatedly,
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i however, the ASLB approved protective measures based upon findings which
- invoked a significantly less stringent standard. For example, with l
l respect to protective actions for schools, the ASLB approved LILCO's Plan i
by finding that it "would be possible for schools to satisfactorily l
l implement sheltering without preplanning." PID, 21 NRC at 862 (emphasis added). A finding that it would be "possible" to implement protective actions is not only speculative in fact, it also falls far short of the ,
3 legally required finding that such actions are " adequate" and "can and I will" be implemented. j i !
! Similarly, Appellants contended that LILCO does not have sufficient ,
credibility with the public to be able to implement its Plan to protect f the public if there were a nuclear accident at Shoreham. A key to the success of LILCO's Plan, assuming arguendo that the Plan itself were 4 .&
adequate, is of necessity LILCO's ability to direct the public to take i
necessary protective actions, including evacuation of the EPZ. f a
1 Appellants submit that any fair review of the evidence leads to the I
conclusion that LILCO lacks the necessary credibility to perform these
! functions effectively. In short, the record demonstrates that LILCO's i
4 low standing among th'e public precludes any assurance that adequate
- protective actions would be taken. (And, this conclusion predates the ;
I 1 recent devastating blows to LILCO's credibility resulting from the company's apparently grossly inadequate preparedness for and response to I
l Hurricane Gloria.2) a 2
Appellants submit that the Appeal Board may take official notice of l
{ the recent widespread news accounts and criticisms of LILCO by large +
1 (footnote continued) i l
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Despite the weight of evidence against LILCO, the ASLB discounted the evidence and simply proclaimed that in a real emergency LILCO would have the necessary credibility, and that the public would follow LILCO's instructions. In so doing, the ASLB emasculated the legal standard of Section 50.47(a)(1) -- i.e., that there is evidence of record that adequate protective measures "can and will" be taken. Its finding was pure speculation.
The foregoing examples highlight a pervasive error in the ASLB's approach to its review of LILCO's Plan. Repeatedly, the ASLB took liberties with the requirements established by NRC regulations and imposed diluted legal standards in judging the elements of LILCO's Plan.
It adopted speculative theories and ignored practical realities and established. facts. LILCO is entitled to no such favors. Indeed, the public, represento here by Appellants, is entitled to an evaluation of LILCO's Plan that in no way compromises its collective safety. For these and the reascns set forth below, Appellants respectfully urge this Board to reverse the ASLB's decisions.
I (footnote continued from previous page) sectors of the public and numerous public officials. At present, both the State of New York and Suffolk County are, by independent committees, investigating LILCO's preparedness for and response to Hurricane Gloria.
Depending upon the outcome of those investigations, Appellants may file with this Board a motion to reopen the record to submit.new evidence of LILCO's further loss of stature and credibility with the public.
i
II. PROCEDURAL ERRORS A. Denial of Contentions
- 1. The ASLB Erred in Denying Admission of Contention 22 In a Special Prehearing Conference Order dated August 19, 1983
(" August 19 Order"), the ASLB rejected Subparts A, B and C of Contention 22, ruling that Appellants improperly sought "to challenge the 10-mile radius rule for a plume EPZ." August 19 Order at 11. This ruling mischaracterized Contention 22, violated NRC regulations, and misapplied NRC precedent.
Contention 22 alleged that LILCO failed to comply with the mandate of 10 CFR S 50.47(c)(2) that " local conditions" be considered in establishing the " exact size and configuration" of the EPZ. Appellants contended that in defining the proposed Shoreham EPZ, LILCO ignored the mandate of Section 50.47(c)(2) and did not consider the local conditions specified in that regulation -- i.e., " demography, topography, land characteristics, access routes, and jurisdictional boundaries."
Furthermore, Appellants contended that propar consideration of those local conditions required adjustments to the proposed EPZ.
Contention 22 is in Intervenors' Proposed Emergency Planning Contentions Modified to Reflect Revision 3 of the LILCO Plan, Jan. 12, 1984 (" Proposed Contentions"), at 40-51. The ASLB reaffirmed its error in its Order Ruling on Objections to Special Prehearing Conference Order, Sept. 30, 1983, at 1-4.
The ASLB relied on the decision in Southern Calif. Edison Co. (San
, Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-39, 15 NRC 1163 (1982). We demonstrate below that San Onofre forcefully supports Appellants' position, not the ASLB's.
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In refusing to admit Subparts A, B, and C of Contention 22, the ASLB (1) removed from LILCO the burden of proving that its proposed EPZ took into account local conditions as required; (2) denied Appellants the opportunity to present evidence of LILCO's failure to consider local conditions and evidence concerning the local conditions themselves; and (3) prevented the ASLB from having any evidence of record on which to approve the size and configuration of the proposed Shoreham EPZ, other than on the one very narrow matter presented in Subpart D. Thus, the ASLB accepted LILCO's EPZ without considering how actual local conditions might affect the EPZ, and did so in the face of Appellants' repeated efforts to put relevant, probative evidence before the ASLB. The ASLB's ruling clearly violated the NRC's regulation, and except for the very f narrow matter addressed under Contention 22.D (see PID, 21 NRC at 707),
its approval of LILCO's EPZ constituted a finding supported by no evidenca. Finally, the ASLB's action contradicted its own prior assurance that the ASLB itself would pursue the need for adjustments to the Shoreham EPZ even if no contentions were submitted on this subject.5 The ASLB ruled that Subparts A, B and C of Contention 22 addressed local conditions either not listed in Section 50.47(c)(2) or only "found in local PRA's." August 19 Order at 11. This was a gross mischaracterization of what Cortention 22 actually stated.6 First, See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-82-19, 15 NRC 601, 618-19 (1982) (in offsite emergency planning proceeding, ASLB would pursue issue of need to expand EPZ due to Long Island's local conditions whether contentions were filed or not).
6 This was demonstrated in detail in the Suffolk County Objection to (footnote continued)
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Contention 22 sought to prove that LILCO defined its proposed EPZ without l.
considering the local conditions explicitly listed in Section i
j 50.47(c)(2). Second, there was no basis for the ASLB arbitrarily to i i
, limit the acceptable content of a contention alleging LILCO's i
noncompliance with Section 50.47(c)(2) to just those factors explicitly listed. Clearly, the Commission intended other local conditions of similar potential impact on public safety to be included. Third, I
l Contention 22 specifically stated why LILCO's Shoreham EPZ fails to i comply with Section 50.47(c)(2), and -- contrary to the ASLB's assertion
{
i i
i j (footnote continued from previous page)
Special Prehearing Conference Order, Sept. 1, 1983 at 2-3, which stated
] inter alla l
i Suffolk County contends, and again hereby offers to demonstrate, that the very local conditions mandated I
by Section 50.47(c)(2) have not been used by LILCO to i define the EPZ. In short, Contention 22 merely tracks the explicit requirerants of an NRC l regulation. The County is , a loss to understand
- the basis for this Board's refusal to hear the j evidence of LILCO's failure to comply with the
- explicit requirements of that regulation.
7
- Section 50.47(c)(2) sets forth the method by which the exact size and i
configuration of the EPZ "shall be determined." The determination must be made "in relation to local emergency response needs and capabilities j as they are affected by such conditions as demography, topography, land i characteristics, access routes, and jurisdictional boundaries."
(Emphasis added). The term "such conditions as" indicates that the listed conditions are demonstrative only and not all-inclusive. Further, j i' " local emergency response needs and capabilities" clearly encompasses matters such as the LERO organization's capability to expand the ,
i emergency response on an ad hoc basis during an accident, and the need tu l deal with the emergency response needs of East End residents and persons i within 10 miles of the plant, who might be unable to evacuate because of
- congestion caused by voluntary evacuees, as discussed in Contentions 22.B and C.
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-- the reasons were not solely PRA-related.8 Thus, Contention 22.A l
alleged specific local conditions that, in a Shoreham accident, would result in adverse health consequences being experienced over an area 1arger than LILCO's rigid 10-mile EPZ; the alleged conditions included a factor explicitly listed in Section 50.47(c)(2) (i.e., local topographic conditions) and others (local meteorological and wind conditions) which clearly are of the same genus.
Similarly, Contention 22.B focused on the need for the EPZ to reflect actual local conditions in order to permit ad hoc expansion of response efforts if necessary during a Shoreham emergency. This was based upon several of the conditions explicitly listed in Section 50.47(c)(2) -- i.e., demography, topography, land characteristics, and access routes. Moreover, it was also based on the unique local condition that the response to a Shoreham emergency -- unlike a response anywhere else -- would be provided by the utility alone (a private corporation whose response capabilities are severely limited), rather than by a governmental entity with far greater capabilities to expand resources on an ad hoc basis beyond 10 miles. See NUREG-0654 at 11.
Finally, Contention 22.C focused upon voluntary evacuation by persons living outside LILCO's rigid 10-mile EPZ. It alleged that an EPZ 1arger than 10 miles was necessary because the local conditions explicitly stated in Section 50.47(c)(2) (i.e., demography, land 8
Nevertheless, it is perfectly proper to consider PRA-related evidence.
See, e.g., Duke Power Co. (Catawba Nuclear Station, Unit 1), LBP-84-37, 20 NRC 933, 979-89 (1984); Long Island Lighting Co., (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1129-32 (1984).
10 -
)
characteristics and access routes) would result in voluntary evacuation adversely affecting the ability of persons within 10 miles to take protective actions. The contention also addressed " local emergency response needs and capabilities," which are explicitly listed in Section 50.47(c)(2).
Notwithstanding the foregoing, the ASLB ruled thet subparts A, B and C of Contention 22 sought "to challenge the 10-mile radius rule" and were therefore inadmissible:
i Local conditions which can affect the size and configuration of an EPZ are listed in 10 CFR
$ 50.47(c). We cannot broaden the regulation to permit introduction of evidence of site-specific conditions . . . .
August 19 Order at 11. The ASLB grossly mischaracterized Contention 22 ,
in so ruling. The contention contains no request that the ASLB " broaden" the regulation; rather, Appellants asked only that the ASLB apply the regulation, which specifically requires that the " exact size and l configuration" of the EPZ be defined only after consideration of actual local conditions. The ASLB also erred in ruling that Section 50.47(c)(2) precludes case-by-case consideration of the extent of a plume EPZ. Id.
Indeed, Section 50.47(c)(2) requires precisely the opposite. The ASLB's reasoning, which precluded consideration of local conditions and local emergency response needs and capabilities, rendered the regulation devoid of meaning and contradicted NRC case law which confirms Appellants' right
, to litigate all of Contention 22.
1 9
See Long Island Lighting Co., 15 NRC at 618-19; Duke Power Co.
(Catawba Nuclear Station, Units 1 and 2), LBP-84-37, 20 NRC 933, 979-89 (footnote continued) 11 -
The San Onofre case does not support the ASLB's action; rather, it supports Appellants' position. Unlike Contention 22, the contention in San Onofre alleged that a 20-mile EPZ was necessary. Contention 22, however, alleged only that local conditions had not been considered by LILCO in fixing the size and configuration of its proposed EPZ, and that consideration of such conditions would require adjustments to the EPZ.
Appellants never argued for a 20-mile EPZ. Appellants argued only for adjustments to the EP7 within the permissible limits of Section 50.47(c)(2) and the guidance set forth by the ASLB in San Onofre. Had the ASLB wished to rule as a legal matter that a 20-mile EPZ could not be considered, it had the right to render that decision; it had no basis, however, for precluding Appellants' opportunity to show that permissible adjustments were necessary. In effect, the ASLB struck Section 50.47(c)(2.' from the regulations.10 (footnote continued from previous page)
(1984) (ASLB conducted evidentiary hearing, considering PRA evidence and other dcta on radiological hazard, and evidence on demography, meteorology, and requirements for evacuation, on issue of whether to adjust EPZ for local conditions). See also Pacific Gas &_Elec. Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 831 (1984) (Board refused to upset ASLB EPZ decision where appellants failed to present evidence that plume EPZ needed to be altered to accommodate particular local conditions).
10 In San Onofre, the Board recognized that Section 50.47(c)(2) allows
" leeway for a mile or two in either direction, based on local factors."
Southern Calif. Edisoa Co., 15 NRC at 1181. Appellants do not agree that
" leeway" should be defined as "a mile or two"; for example, there would be no basis for arbitrarily limiting the EPZ to 11 or 12 miles if local conditions could cause adverse effects on public health and safety farther away. However, even under the arbitrary confinements of San Onofre, Contentions 22.A, B and C should not have been denied admission in their entirety; rather, the ASLB could have limited the concerns raised in Contention 22 to an area of 1-2 miles beyond the LILCO 10-mile EPZ. In refusing to do so, the ASLB clearly erred.
4
?
- 2. The ASLB Erred in Denying Admission of Contention 26.B l In its August 19 Order, the ASLB refused to admit Contention 26.B,"
l ruling that the alleged inadequacy of commercial telephone lines for notification of emergency response personnel had been within the scope of Pnase I Contention EP 11. August 19 Order at 15-16. Appellants were i
thus precluded from submitting evidence concerning a critical aspect of j LILCO's scheme for notifying and mobilizing offsite emergency response personnel.
The ASLB erred in denying Contention 26.B. Phase I Contention EP 11 l was limited to of fsite communication issues concerning the effect of commercial telephone overload or unavailability on the notification of l those few organizations expected to report onsite in a Shoreham 13 emergency. Contention 26.B. on the other hand, addressed the notification of personnel required or expected to provide the of fsite response to a Shoreham emergency. Clearly, the very limited offsite i
1 11 Contention 26.B is set forth in the Proposed Contentions at 89-91.
12
- The ASLB also erred in striking testimony because it addressed the inadequacy of LILCO's proposal to use commercial telephone lines to I
notify and mobilize offsite response personnel, based upon its belief that its August 19 Order precluded litigation of issues concerning LILCO's reliance on commercial telephone lines. See, Eg., Tr. 4003-10.
- Thus, the ASLB's error in refusing to admit Contention 26.B also resulted i in precluding Appellants from presenting si;;nificant portions of their
! testimony that was relevant to other admitted contentions. y ,
S e.g.,
Suffolk County's testimony on Contentions 26.A C, D and E (Regensburg at al., ff. Tr. 4442), from which passages at pages 6, 22-23, 34, 41, 47, I i
51, 53, 55 and 61 were stricken over Appellants' objections (sy, Eg. , !
l Tr. 4064-66, 4250-53). !
13 Contention EP 11 (originally, EP 15) is act forth in igJng inland i Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-75, 16 NRC
!, 986, 1026-27 (1982).
13 -
4 3
l
notification issue raised in EP 11 was not, and could not have been, a 1
legitimate bar to litigation of the concerns raised in Contention 26.B.
! which related to a LILCO offsite plan that was not even in oxistence during Phase I.I' In fact, the express limitations on the scope of Phase I made it impossible to have litigated at that time the issues raised in Contention 26.B."
Moreover, even assuming that the general subject of concern in Contention 26.B wa within the scope of EP 11, the impact of such concern l on offsite emergency preparedness could not have been litigated during l
Phase I. The notification at issue during Phase I was limited to the first line of authorities (i.e., Federal, State and County officials) and
] the few organizations expected to respond onsite. The notification at issue in Phase II was far broader. 6 Moreover, the proposed use of commercial telephones for so many purposes under the LILCO Plan increases I'
J Phase I was in 1982; the LILCO offsite plan was first submitted to the NRC in late May 1983. To construe the Phase I/ Phase II distinction in a way the.t would preclude litigation of issues about a plan that did not even exist during Phase I is irrational.
See, e A , Tr. 747-48 (April 14, 1982 Brenner) ("What we believe ,
could be litigated now would . . . include the arrangement of assistance resources needed onsite by the licensee . . . . That is for the onsite operations that would need to take place in an emergency"). See also Prehearing Conference Order of July 27, 1982, at 11 (EP 11 should focus upon LILCO's ability to notify just "the first line of authorities" of an accident).
16 The notification in the LILCO Plan considered in Phase 11 included:
j (1) notification and mobilization of the entire IIRO organization
, (approximately 1800 persons); (2) notification of numerous organizations
- and entities expected to provide offsite services (e.g , reception hospitals for nursing homes and hospitals in the EPZ, ambulance dispatch i
stations, bus companies, relocation centers, and the Red Cross); and (3) notification of schools, hospitals, nursing homes and other specini facilities, and handicapped persons in the EPZ, f
14
the probability of overload dramatically; thus, the Contention 26.B concern is substantially different and much more significant than the issue involved during Phase I. Finally, the impact of overload under the LILCO Plan is significantly greater than that which could have been considered during Phase I. 8 Appellants were entitled to present evidence on the implementability of the offsite plan proposed by LILCO, including LILCO's proposals for notifying and mobilizing its offsite response force by means of commercial telephone. It was clear error for the ASLB to have denied admission of Contention 26.B.
- 3. The ASLB Erred in Denying Admission of the Proposed Contention on the LIILO Labor Strike On August 20, 1984, following a strike by LILCO's union employees, Appellants filed a new contention challenging LILCO's capability to implement its Plan. On September 7, 1984, the ASLB refused to admit the contention, ruling that Appellants had not met the late-filed contention
" For example, even assuming that the amount of public telephone usage during an emergency and the resulting likelihood of overload could have been litigated during Phase 1, the facts concerning the likelihood of overload were substantially different in Phase II because of the proposed extensive use of telephones by LILCO personnel under the LILC0 Plan.
18 Even if Appellants had prevailed under EP 11, the result would have been a finding that LILCO's onsite plan was inadequate - a problem that !
arguably could have been remedied by installation of more reliable means of communications between Shoreham and the few organizations addressed by EP 11. Contention 26.B. however, raised the much broader issue of whether any offsite protective actions could or would be implemented, given LILCO's heavy reliance upon commercial telephones as a means for notifying all response personnel and implementing its offsite plan. The ,
problems identified in Contention 26.B were not, and could not have been, '
addressed under EP 11.
l
standards and that the contentien's basis was not stated with reasonable specificity.19 This ruling was erroneous.
LILCO's Plan relies on "LERO," consisting of approximately 1800
" volunteer" workers, the vast majority of whom are LILCO employees. See OPIP 2.1.1. Approximately 1200 of them are members of labor unions.
LILCO Ex. 71, at 1. Following the LILCO strike on July 10, 1984, it was reported that 1200 LERO members, en masse, had resigned from LERO. gee, e.g., Tr. 13,289-90 (Cosgrove). In addition, there was considerable evidence that the strike and other events had created deep resentment toward LILCO's management.'O '
This fact, combined with the resignations from LERO, made it appear unlikely that LILCO's employees would undertake the wotk and responsibilities involved in " volunteering" for LERO, and i
l called into question the very existence of that organization. In the I
proposed contention, Appellants alleged that there was no Lasis for a reasonable assurance finding that LERO would exist ir the futurn or, even
- if it did exist, that it would be capable of adequately implementing the LILCO Plan.
1 i
i 1
I gen Motion of Suffolk County to Admit New Contention, Aug. 20, 1984 i
(" August 20 Motion"); Memorandum and Order Denying Motion of Suf folk l County to Admit New Contention, Sept. 7,1984 (" September 7 Order"), at j 11-12.
O See August 20 Motion (c2 g , LILCO's decision to provide economic i benefits to its top management, despite the termination of approximately
! 20% of its work force; LILCO's termination of all health benefits for its striking workers; and LILCO's insistence that the union employees take a 5% wage cut along with reductions in benefits).
i 1 1 I
P
______.____._-_____________.._____...__.._______..___.____m_____-_____m_ -
m___.______ -
l l
i On July 24, 1984, the ASLB had acknowledged the serious issues posed by LILCO's reliance on LERO to implement its Plan, raising sua sponte the following strike-related issues:
- 1. Whether LILCO's ability to implement its offsite emergency preparedness plan would be impaired by a strike involving the majority of its LERO workers.
- 2. Whether LILCO should be required to place the reactor in cold shutdown in the event of a strike by LERO workers.
- 3. Whether placing the reactor in cold shutdown during a strike by LERO workers, after the reactor had operated at full power, would give " reasonable assurance" that adequate protective measures can and will be taken in the event of a radiological emergency.21 After July 24, Appellants began preparing their case to establish that the LERO resignations and the ill feelings engendered prior to and,during the strike foreclosed a finding of reasonable assurance that LERO, or its continued existence, could be relied upon. Since none of the ASLB issues limited the occurrence of a radiological emergency to the time during an actual strike, Appellants reasonably believed the matters it intended to address were within the scope of the ASLB's issues (particularly issue 3). At a conference of counsel on August 8, 1984, however, the ASLB ruled that its issues were intended only to address the occurrence of a radiological emergency during a strike. Thus, the broader ramifications of a strike, including the effects of a strike on LILCO's ability to implement its Plan at any time, were determined to be outside the scope of the ASLB's July 24 issues. Tr. 14,003-11. Twelve days later, on August 20, Appellants sought admission of the new contention.
21 Memorandum and Order Determining that a Serious Safety Matter Exists.
July 24, 1984 (" July 24 Order").
- 1 The ASLB purportedly based its denial of the contention on a balancing of the five factors set forth in 10 CFR S 2.714(a)(1). It ruled that four of the five factors weighed against admission,22 as did the contention's alleged failure to state its basis with reasonable i
specificity. September 7 Order at 11-12. Contrary to the ASLB's ruling, however, all the Section 2.714 factors weighed in favor of admitting the contention, the contention was specific, and its basis was set forth with particularity. For example, the ASLB's timeliness determination was based upon its holding that Appellants had waited 40 days from the time the strike began -- and less than two weeks before the hearings were scheduled to end -- before it filed its contention. September 7 Order at
- 7. Appellants, however, could not reasonably have filed any earlier.23 The other Section 2.714 factors also favored admission of the contention. Appellants' interest in obt.aining a determination as to the impact of the strike and future strikes upon the implementability of I
LILCO's Plan could not be protected by any other means, since no l
The one factor resolved in Appellants' favor was the extent to which Appellants' interests would be represented by existing parties. See September 7 Order at 10.
23 Before Appellants had an opportunity to proffer any strike-related contention, the ASLB issued its July 24 Order, and Appellants, in good faith, inter l
Appellants' concerns.
preted theItASLB's was notlanguage until August to cover 8 thatthe full scope Appellants of learned that the ASLB intended its issues to be much more narrow. In the ASLB's view, however, even if Appellants were correct in construing the am sponte issues, they did not act promptly after being advised of the ASLB's interpretation on August 8. September 7 Order at 7-8. Clearly, Appellants did act promptly: only 12 days elapsed, during which Appellants' counsel was required to conduct depositions (August 9 and 13) t and to participate in hearings (August 14-16), in addition to preparing the necessary papers for seeking admission of the proposed contention.
i contention or issue otherwise before the ASLB addressed those issues.24 Similarly, admission of the contention would have assisted in developing a sound and complete record, and despite the ASLB's contrary conclusion (September 7 Order at 10-11), the proposed contention would not have unduly broadened the scope of the ASLB's consideration of the impact of the LILCO strike or unduly delayed the proceeding. 6 Finally, the ASLB's rulings that Appellants failed to establish a basis for the contention and that the contention was too speculative were also wrong. September 7 Order at 12-13. The ASLB relied on a LILCO The ASLB's contrary conclusion, based upon its finding that Appellants' interest would be protected by FEMA's evaluation during on exercise, was without basis. September 7 Order at 8-9. FEMA's position on many Shoreham issues (particularly on the less technical /more judgmental issues) has been adverse to Appellants' position, thus making it untenable to consider FEMA capable of representing Appellants' interests. Further, it made no sense to suggest that FEMA would adequately protect Appellants' interests when the ASLB had found that no other party, including FEMA, would adequately represent Appellants' interests. See September 7 Order at 10.
Appellants contacted experts knowledgeable about the matters raised in the contention and informed the ASLB that these witnesses, and perhaps others, would testify about the effect of the LILCO strike on LILCO's ability to implement its Plan. Moreover, Appellants provided the ASLB with specific information regarding their intended evidence; the evidence would have demonstrated that the LILCO strike and the potential for future strikes had serious ramifications upon LILCO's ability to implement its Plan. Thus, the ASLB's finding that Appellants had failed to set forth with specificity the evidence they would have presented was without basis. See September 7 Order at 9-10.
26 Tne contention was narrowly focused, and it:, litigation would have required at most only a few days of hearing time. The ASLB's belief that the contention would have broadened and delayed the proceeding, and would have required adjustments to the schedule for submission of proposed findings, even if true, hardly justifies denying admission of the contention. Even after refusing to adjust the schedule to accommodate admission of the contention, the ASLB did not issue its initial decision until some eight months after Appellants proffered the contention, and four m nths after the parties had completed briefing the case.
j i
___ .. - . _ _ _ ~ .- -- -_ - - - . . = .-_ ..
I I
I i
affidavit and a letter from LILCO's counsel which disputed, as a factual matter, Appellants' assertion that LILCO union members had resigned from LERO. Id. Noting that Appellants did not attempt to refute the
{ affidavit or the letter (which asserted that there had been only 106 strike-related LERO resignations), the ASLB concluded that Appellants' i
1 l allegation of en masse resignations was factually unsupported. It is j well-established that parties do not have to present evidence in their ;
contentions. The ASLB's wholesale acceptance of matters not in the 1 evidentiary record and its finding of fact in the guise of an l l 1 admissibility ruling was reversible error.
B. The ASLB Erred in Denying Discovery Against FEMA Prior to July 10, 1984, the ASLB and the Appeal Board recognized 1 i 2 that Appellants were entitled to probe the bases for the conclusions j 4
stated by the FEMA witnesses in their profiled testimony.28 On July 10, however, the ASLB sanctioned FEMA's refusal to produce documents relevant j y to FEMA's RAC review of the LILCO Plan. ' The ASLB also denied Appellants an opportunity to inquire, during discovery depositions of the 1
a 27 See, e.g., Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542 (1980); Mississippi l Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423 (1973).
Sy ASLB Memorandum and Order Ruling on Suffolk County Motion to Compel Production of Documentr by FEMA, May 18, 1984 ("Hemorandum and Order"), at 7-8; Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333, 1343 (1954).
Tr. 12,127-30. Appellants sought immediate appeal of the ASLB's July 10 Order but this Board decided that such appeal was interlocutory. Sm Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-780, 20 NRC 378 (1934).
4 i
i
FEMA witnesses, into the bases for the RAC review or the opinions expressed by those witnesses in their pre-filed testimony. Tr. 12,127-130.30 As a result, Appellants were unable to inquire into the reasons for and the substance of specific findings in the final FEMA RAC report upon which the FEMA testimony was based, and were unable to obtain meaningful explanations of the bases for the conclusions of individual RAC members, or even to ascertain what materials other than the LILCO Plan the RAC members had reviewed.31 The executive privilege asserted by FEMA was a qualified privilege which could be overcome by a showing of compelling need. In this case, the need to explore the underpinnings of the RAC review was especially 30 The July 10 ASLB rulings came in response to Appellants' Motion to Compel Production of Documents by FEMA, and to Postpone the Cross-Examination of FEMA's k'itnesses, and for Issuance of Subpoenas to the Members of the RAC, July 6, 1984 (the " July 6 Motion"). The July 6 Motion requested the ASLB (1) to compel FEMA to produce the 30 documents which FEMA had refused to produce on the asserted ground of executive privilege; (2) to issue subpoenas to RAC members so they could be deposed regarding their participation in the RAC review of the LILCO Plan; and (3) to postpone cross-examination of FEMA's witnesses, scheduled to commence on July 10, until an opportunity to conduct discovery pursuant to the requested subpoenas was afforded.
31 It was important for Appellants to determine information such as the RAC members' opinions on particular RAC findings so that it could be ascertained whether members with expertise in a particular area disagreed with the findings in the RAC report, if so, why, and why those opinions were changed, overruled, discarded or otherwise not reflected in the final RAC conclusions. Similarly, it was important to understand the bases for che conclusions of individual RAC members, and the information reviewed by each member in forming their conclusions regarding the LILCO Plan. ALAB-773 permitted Appellants to probe for these data. Appellants were precluded from discovering such information, however, by the FEMA witnesses' lack of recollection, FEMA counsel's refusal to permit the witnesses to answer questions during their depositions, and the ASLB's denial of the July 6 Motion. See, e.g., July 6 Motion at 10-17, 18-21 and attachments.
compelling, and outweighed FEMA's asserted interest in the confiden-tiality of the documents because the RAC conclusions in essence were the sole basis for the testimony of FEMA's witnesses. In ALAB-773, the Appeal Board did not dispute Appellants' right to discover infot. nation regarding the bases for the RAC conclusions; it merely found that Appellants had not demonstrated that the information was unavailable through means other than disclosure of the documents. 19 NRC at 1343.
The Appeal Board indicated that if Appellants were not provided with the information through the depositions, then disclosure of the FEMA documents would be warranted. See id. at 1344-48. Following the depositions of FEMA's witnesses, Appellants were in the very circumstances contemplated by the Appeal Board. Accordingly, the ASLB Indeed, this fact initially prompted the ASLB to determine that the findings of the RAC were "directly relevant to the issue in controversy,"
and that the information sought by Appellants was " centrally important to the County's case in asserting that the LILCO Plan does not comply with NUREG 0654." Memorandum and Order at 7, 9.
33 By way of example, the Appeal Board held that Appellants could establish a compelling need for the FEMA documents under circumstances where:
(1) There were "significant differences of opinion among members of the RAC on important issues affecting the adequacy of LILCO's plan;" or (2) The " witnesses [were] unable to defend or explain adequately the underlying bases for FEMA's determinations;" or (3) The witnesses " reveal [ed] that they ha[d] relied to an inordinate degree on the views of others."
19 NRC at 1348.
34 For example, Appellants determined during the depositions that, in (footnote continued)
erred in not ordering FEMA to release the 30 documents which were the subject of its May 18 Memorandum and Order.
III. ERRORS IN THE ASLB'S PARTIAL INITIAL DECISION A. Schools (Contentions 24.E, 24.F, 24.M.
61.C, and 68-71)
The ASLB erred significantly in its rulings relating to planning for schoolchildren, both in failing to address the overall lack of school preparedness and also in treating specific deficiencies.
(footnote continued from previous page) many instances, the opinions of RAC members differed as to the adequacy of particular portions of LILCO's Plan. However, Appellants were precluded from discovering the nature of the dissenting RAC members' opinions, the bases for these opinions, or even whether the dissenters were from agencies with expertise in the area at issue, due to the witnesses' lack of knowledge or recollection, and FEMA counsel's refusal to perait the witnesses to testify even when they were able to do so.
See, e;3., July 6 Motion at 10-13, 20-21. Appellants thus were also prevented from determining whether the FEMA witnesses " relied to an inordinate degree on the views of others." Clearly, the first and third circumstances articulated by this Board, under which disclosure of the underlying FEMA documents would have been justified, were satisfied. The deposition testimony also demonstrated that the FEMA witnesses were unable to defend or explain the procedures, methods, or activities undertaken by RAC members in performing their review and reaching their conclusions. In fact, Appellants could not even ascertain what, if any, materials were reviewed by individual RAC members. July 6 Motion at 14-17, 21. Thus, this Board's second circumstance was also satisfied.
35 The ASLB also erred in not issuing subpoenas to the RAC members and in not postponing the cross-examination of FEMA's witnesses. In depo-sitions, FEMA's witnesses were unable to explain what individual RAC members did in reviewing LILCO's Plan and what their opinions were as a result of that review. Indeed, FEMA's counsel prohibited inquiry into these issues. See, e.g., July 6 Motion at 10-13, 14-17.
Therefore, the only way to discover this relevant information was through deposition of RAC members. Furthermore, Appellants were entitled to cross-examine FEMA's witnesses after having had the opportunity to discover relevant evidence. Appellants were prejudiced 10r the ASLB's July 10 ruling requiring them to go forward with cross-examination prior to meaningful discovery. See July 6 Motion at 23-24.
- 1. The ASLB Ignored the Overall Lack of School Preparedness The schools contentions allege generally that there can be no l
finding of adequate preparedness with respect to schools. The ASLB never i
came to grips with that issue; rather, it appeared determined to address only subissues while ignoring the overriding and dispositive lack of 4
l <
preparedness. The facts were not materially in dispute: school districts in and adjacent to the EPZ are not engaged in planning for a i Shoreham emergency; the school districts do not believe their existing
" plans" are appropriate for or implementable during a radiological
- emergency; and, there is no evidence that the lack of school planning will change any time soon. Given these facts, the ASLB had no possible l basis to find that any adequate protective measures "can and will" be taken by schools in the event of a Shoreham emergency.
i The ASLB's treatment of the Contention 24.E issue -- whether letters of agreement committing schools to carry out the protective actions specified in the LILCO Plan are required -- typifies the ASLB's errors on
- all the school contentions. See PID, 21 NRC at 856-58. The ASLB totally l failed to address the key preparedness issue
- _whether the schools are, I
y or reliably can be predicted to be, ready and able to implement adequate i
protective measures. Instead, it simply avoided the issue by holding that no letters of agreement are required because schools are not
" support organizations."
i The ASLB erred in failing to follow the clear NRC precedent that written school plans are required. See Pennsylvania Power & Light Co.
i a
f
- - . - , - . . . - , , , , n,e-,_,,,.-,.~.,-..-.-. ,,,,,-,.,,,,,,,,,,,,,,,,.,n_.,,-,., ,:.,nn,-,n.-,-_.,--,--,
(Susquehanna Steam Electric Station, Units 1 and 2), LBP-82-30, 15 NRC 771, 781-82, 798 (1982), sua sponte review, ALAB-702, 16 NRC 1530 (1982).
The ASLB's attempt to distinguish Susquehanna on the basis that
" Pennsylvania did not require their schools [to] submit to the State winter disaster plans and so there was a need for NRC to require written school evacuation plans" whila, in supposed contrast, "New York State requires schools to file written disaster plans . . . ." (PID, 21 NRC at 857-58) should be rejected. The Susquehanna ruling arose out of a situation where the State of Pennsylvania urged that the existing level of preparedness was inadequate. Despite LILCO's argument that early dismissal plans for schools exist in this case, in fact, the situation is identical to that in Susquehanna. See 15 NRC at 781-82. Here, the State of New York also alleged that the existing planning is insufficient, and clearly the State is in the best position to know whether existing early dismissal plans can be adapted for use in a radiological emergency.
The ASLB held that "LILCO need not obtain written agreements with schools, and that the written emergency plans [i.e., the early dismissal plans) required by New York State are adequate to provide reasonable assurance that adequate protective measures can and will be implemented in the event of an emergency at the Shoreham plant." PID, 21 NRC at 858 (emphasis added). This ruling has no basis and must be reversed.
First, the " written emergency plans" relied upon by the ASLB deal solely with the early dismissal of school children, that is, the return of children to their homes, in most cases to locations within the EPZ.
These " plans" do not deal at all with evacuation of school children to 25 -
4 relocation centers outside the EPZ or with sheltering of children within schools. Accordingly, there is no basis to hold that these " plans" are adequate for two out of three of LILCO's proposed protective actions.
Second, although there are 17 school districts in the EPZ, the record contains the early dismissal plans of only two -- Middle Island l
and Middle Country Central School Districts.36 The ASLB could not have j found other " plans" to be adequate without ever reviewing them. See Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-580, 11 NRC 227 (1980).
- Third, several school administrators testified that their early l
l dismissal plans were not designed to be utilized in a radiological
! emergency, that they do not address evacuation or sheltering at all, and l that the early dismissal protective action proposed by LILCO could not be
- implemented during a Shoreham emergency.38 And, resolutions passed by at ,
least eight schools and school districts are to the same effect. The j ASLB was in no position to reject the views of the administrators or 4
36 j Cordaro et al., ff. Tr. 9154, at 12 and Atts. 27 and 31; Plan at App.
A, II-10 and Fig. 4.
i 37 There is no indication in the PID that the ASLB even glanced at the 7
two early dismissal plans which were in the record. Hence, Appellants are at a loss to discern how the ASLB could have found even those plans, much less the others it never received, adequate for a radiological 2
emergency. 'Ihis is a clear example of a Board issuing a decision without providing any reasoned basis, in violation of Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33, 40-42 (1977).
3 See, e a , Petrilak (Schools), ff. Tr. 11,001, at 2-3, 7-8; Tr.
] 1102-03 (Muto); Jeffers & Rossi (Schools), ff. Tr. 11,001, at 3, 7-8; Tr.
1 11,013 (Jeffers). See also Tr. 9532 (Doremus).
3' See Purcell et al., ff. Tr. 10,727, Att. 6.
- i i
- . - _ _ . _ . , . . . . . . _ . - . - , - - . - . , _ ~ . _ . - . . . , - , . . - , . , . . , - , . - _ . _ _ , . , , , _ _ . _ _ - , . _ _ , - , . . , -
school boards -- the very people who would have to take actions in an emergency -- and thus to find those plans to be adequate.
What then could form the basis for the ASLB's finding that the existing " written emergency plans" for schools, which admittedly address only early dismissal, are adequate for all protective actions, including sheltering and evacuation? On the existing record, there was no basis at all to approve LILCO's Plan with respect to schools. No district has stated a willingness to follow LILCO's Plan, much less agreed to do so.
Indeed, LILCO's witnesses conceded that most of the school districts in and near the Shoreham EPZ have refused to participate in planning with LILCO, and the ASLB also acknowleged that fact. Cordaro et al., ff. Tr.
9154, at 29-30; see PID, 21 NRC at 856. O The only possible basis for the ASLB's finding is what LILCO has attempted to do and what allegedly might be possible if schools decide at some later date to plan.
Clearly, such speculation cannot support the reasonable assurance finding mandated by Section 50.47(a)(1).
40 LILCO did suggest that because its representatives have met with school districts, the ASLB could find preparedness. The few meetings LILCO has had, however, resulted in no agreements even to begin planning for an emergency at Shoreham; indeed, that was not the intent of the meetings. Rather, the meetings were held to allow LILCO to present information to the school districts. They were not planning meetings and school officials have made clear that their districts are not involved in emergency planning with LILCO. See Cordaro et al., ff. Tr. 9154, at 22-23; Tr. 11,088-90 (Jeffers, Muto); 11,090-92 (Smith, Jeffers, Petrilak).
1 E.g., PID, 21 NRC at 862 (it "would be possible" for schools to shelter satisfactorily without preplanning); at 866 (planning for early dismissal can overcome identified problems); at 870 (school early dismissal plans can be used for evacuation if used in conjunction with information LILCO is prepared to make available).
In the Zimmer proceeding, deficiencies in the plans for two school districts prompted the Licensing Board to declare the planning efforts inadequate. See Cincinnati Gas & Elec. Co. (Zimmer Nuclear Power Station, Unit 1), LBP-82-48, 15 NRC 1549, 1569-70 (1982). On appeal, the applicant attempted to persuade the Appeal Board that the deficiencies were being overcome. The Appeal Board rejected the argument: "[M] ore is needed than this representation of ongoing efforts to enlist the assistance of its West Clermont School District. . . ." Cincinnati Gas &
Elec. Co. (Zimmer Nuclear Power Station, Unit 1), ALAB-727, 17 NRC 760, 773 (1983). See also Consolidated Edison Co. (Indian Point, Units 2 and 3), LBP-83-68, 18 NRC 811, 982-85 (1983) (early dismissal plans not accepted as adequate where not adopted as part of State plan and where not adopted by any of the counties within the EPZ; only possible conclusion by Board is that plans are being studied and may be adopted).
The NRC case law makes clear that a Board must be able to find that protective actions for schoolchildren can and will be taken in an emergency. To be sure, this involves a predictive finding, but NRC Boards have required real evidence of planning, coordination, and implementability as a precondition of approval. Mere evidence of efforts to obtain cooperation is not sufficient. See, e.g., Cincinnati Gas &
Electric Co., 17 NRC at 773; Consolidated Edison Co., 18 NRC at 982-85; Pennsylvania Power & Light Co., 15 NRC at 782. Further, reliance on ad 42 The TMI emergency planning decision presented no different principle.
At TMI, the offsite planning was conducted by the county. The Board found that written school plans were important to the overall county plan. See Metropolitan Edison Co. (Three Mile Island Nuclear Station, (footnote continued)
- - , r vm g - ,, s , , -,
hoc planning -- such as the hope that sheltering or evacuation could be effectuated with no written plans and no preplanning -- has been firmly rejected, most recently by this Board itself. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-818, slip op, at 36-39 (Oct. 18, 1985); accord, Metropolitan Edison Co., 14 NRC at 1640-41.
In this case, at most it can be argued that there exist generalized school plans, but only for one of LILCO's three proposed protective actions -- early dismissal. There are no written plans for sheltering in schools or for evacuation. There is no evidence that any school district is preparing plans or has even represented that it will prepare plans for a Shoreham emergency. And the representatives of three of the four districts that testified at the ASLB hearing, as well as resolutions by other districts, unequivocally stated that the existing early dismissal plans were themselves not appropriate for use in a radiological emergency. ^n the record before it, the ASLB was therefore compelled to rule that there is no reasonable assurance that adequate school (footnote continued from previous page)
Unit 1), LBP-81-59, 14 NRC 1211, 1638 (1981). The Board found that the lack of written generalized plans for each school district was a deficiency and rejected the proposition that.ed hoc arrangements could suffice. Id. at 1640-41. Further, in the TMI case, the FEMA testimony that school agreements we: e not needed was premised on the view that something superior to agreements was being sought -- actual plans. Id.
at 1639. And in Susquehanna, it was held that the NUREG-0654 requirement for written agreements from local agencies and support organizations applies to schools. Pennsylvania Power & Light Co., 15 NRC at 782. In this case, however, the ASLB settled for something decidedly inferior to agreements: early dismissal plans that do not address evacuation or sheltering and which have been disavowed as inadequate by the very school administrators who are supposed to implement them.
i i
protective measures can and will be taken for schoolchildren. Its ,
rulings on the school contentions must be reversed.
t
- 2. Other Errors in ASLB School Rulings l
In addition to the foregoing dispositive error in the ASLB's ruling I
with respect to schools, we highlight below other related errors of a more specific nature. First, the ASLB ruled (on Contention 24.M) that it has confidence that there will be sufficient numbers of bus drivers 1
available to drive buses in the event of either an early dismissal or an evacuation. The ASLB apparently based this ruling on its belief that bus companies are bound by contract to drive buses in an early dismissal.
See PID, 21 NRC at 858-59. However, there are no agreements whatsoever with bus companies to implement an evacuation during a radiological emergency. Moreover, an evacuation of schoolchildren would require bus drivers to follow different routes than in early dismissals (going to yet-to-be-identified relocation centers outside the EPZ rather than following the familiar route of taking children home), and would require more buses and drivers than an early dismissal (since all children would need transportation in contrast to early dismissals where some children I
walk), not to mention having to deal with the unique risks and complications of driving during a radiological emergency. None of these matters are covered by contracts governing early school dismissals, and 3
The ASLB found that bus drivers "are expected to drive" in an evacuation because of LILCO's testimony "that evacuation involves summoning the buses in the same manner as for early dismissal, but that students will be taken to relocation centers instead of home," and a school administrator's testimony that contracts obligate bus companies to respond to a school's call for an early dismissal pick-up. PID, 21 NRC 4
at 859.
1
- . . . . _ _ _ - - - -__ - _ ~ .
i 4 LILCO proffered the agreement of no bus drivers or companies to undertake ,
i l such a new engagement. Its " expectation," apparently adopted by the ASLB, that bus drivers and " properly licensed teacher (s] or custodian [s]" f would drive, is pure fantasy. The emergency planning regulations cannot be deemed " satisfied" on the basis of mere speculation, assumptions, or
( predictions about " arrangements" that could be made, especially where support organizations are concerned. See, e.g., Cincinnati Gas &
Electric Co., 17 NRC at 772-73. The lack of agreements with bus companies to implement a school evacuation is a clear violation of NUREG-0654 5 II.A.3, and Section 50.47(a)(1) and (b)(3). See Consolidated Edison Co., 18 NRC at 930, 934-35 (lack of agreements with bus drivers to drive during radiological emergency is plan deficiency).
- Second, one of LILCO's protective actions for schools is sheltering.
It was undisputed that no school has any written plan to implement a sheltering recommendation, that existing school " plans" do not address '
sheltering, and that while LILCO is willing to assist schools to develop sheltering plans and LILC0 has done some preplanning, the schools have essentially rejected LILCO's offers and are doing nothing to plan themselves. See PID, 21 NRC at 860-61. On this record, the ASLB astonishingly found that LILCO's proposals for sheltering satisfy the i The ASLB also appears to rely on LILCO's offer of training to bus
! drivers and teachers. PID, 21 NRC at 859. This offer is irrelevant absent any evidence that the offer has been or will be accepted. See Consumers Power Co. (Big Rock Point Plant), LBP-82-77, 16 NRC 1096, 1098-1100 (1982) and Consumers Power Co. (Big Rock Point Plant), LBP 44, 18 NRC 201, 203-04 (1983) (training does not need to be complete at time of hearing but there must be a basis for believing that the training program is established and will be carried out). See also Section III.K below.
- J t
"we e-wr , + - e- o--wer e =-ewm.- - r--~~-- .,v--- ,mm,,-r eem m erw eg -m e ~s w ~ ~ m -> e ve g ger ~ w y wm v -y g- m m,'-vmwv4Y wm -Yn'v67w'n*'*w-*-vs>v w w ww -w w
i n
l s
NRC's requirements: "[A]1though preplanning by the schools might enhance j the dose savings to be gained from sheltering, it would be possible for schools to satisfactorily implement sheltering without preplanning."
! PID, 21 NRC at 862 (emphasis added).
) Appellants submit that this ASLB holding is wholly unacceptable, and requires reversal. A "would be possible" ruling is not a finding which satisfies the "can and will" standard of Section 50.47(a)(1). As the Appeal Board itself stated in its October 18, 1985 decision in this case, j
"in the context of this case, at least, something more is needed than an I
aspiration that the public will be able to fend for itself . . . ." Long Island Lighting Co., ALAB-818, slip op. at 42-43. The ASLB's ruling is totally at odds with the premise underlying Section 50.47 -- that planning is essential and mere ad hoc responses are unacceptable. That was the chief lesson of TMI. Id. at 37-38; Metropolitan Edison Co., 14 f NRC at 1641 (ad hoc arrangements for s:hoolchildren not adequate). On j the record before it, the ASLB was required to rule that there is no assurance that the protective action of sheltering for schoolchildren could or would be taktsn because there is no evidence that the persons expected to implement LILCO's sheltering proposal -- school personnel --
in fact would or could do so. :
Third, as noted above, the ASLB found in LILCO's favor on the proposed protective action of early dismissal. See PID, 21 NRC at 864-
- 66. One issue was whether early dismissal would be severely disrupted by parents going to schools to pick up their children, a phenomenon the ASLB acknowledged would occur. Id. at 866. The Board found "the requisite A
reasonable assurance that planning for this aspect of early dismissal can and will protect the health and safety of school children." Id.
(emphasis added). But, the uncontroverted evidence was that there has been no planning by schools for this problem, or for any other problem, in a Shoreham emergency. Thus, the ASLB's holding has no basis and cannot be sustained.
Finally, the ASLB's approval of LILCO's proposal for school evacuation also fails to address the regulatory standards:
The Board finds that LILCO has made available the information necessary for schools to implement an evacuation. In addition, schools have plans for early dismissal which can be used for evacuation.
The Board finds that schools' existing plans combined with information provided by LILCO make the plan for school evacuation workable.
PID, 21 NRC at 870 (emphasis added). This ASLB " finding" is pure speculation which ignores the critical facts in the evidentiary record:
no school has an evacuation plan; no school is preparing an evacuation plan; no school has agreed to use an early dismissal plan for evacuation; ;
and, no school has agreed to use "information provided by LILC0" or to implement an evacuation. It is astonishing that given these. facts, the ASLB could find that there is a " plan" for school evacuation, much less find it " workable." The ASLB's " findings" on the schools contentions have no basis and must be reversed. See Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981); Aberdeen & Rockfish Co. v. U.S., 565 F.2d 327, 334-35 (5th Cir. 1977), rev'd on other grounds sub nom Long Island Ry.
Co. v. Aberdeen & Rockfish Co., 439 U.S. 1 (1978); Great Lakes Screw Corp. v. NLRB, 409 F.2d 375, 379 (7th Cir. 1969).
i
B. Special Facilities (Contentions 24.G, 24.J, 24.K, 24.N, 60, 63, and 72)
In ruling on contentions relating to proposed protective actions for residents of nursing and adult houes, health care facilities, hospitals, and the radiosensitive, the ASLB again ignored a conceded lack of preparedness. As it did with respect to schoolchildren, it made clearly erroneous findings of " adequacy" in disregard of the evidence, based solely on speculation, and contrary to the regulatory standards.
- 1. Lack of Agreements with Epecial Facilities (Contention 24.J)
LILCO has not obtained any agreements from nursery schools, adult homes, nursing homes, hospitals or other special facilities in the EPZ concerning their ability or willingness to implement LILCO's proposed protective actions for their residents. The ASLB found, however, that these facilities "are not support organizations" because "the only
- actions expected of thes organizations is [ sic] to act in their own interest to protect themselves . . . ." PID, 21 NRC at 834. The ASLB therefore concluded that despite the provisions of NUREG-0654 6 II.A.3, no letters of agreement with those facilities are required. Id. at 835.
The ASLB cited no Icgal authority for this ruling. In fact, it conflicts
! with NRC precedent, and should be reversed.
( As noted in Section III.A above, the NRC has required agreements or written plans from schools and school districts even though in an emergency they also are expected only "to act in their own interest and
protect themselves." There is no basis for treating nursery schools, nursing homes and other special facilities any differently, particularly in this case where there is no evidence that those facilities have agreed either to perform the tasks assigned to them by LILC0 or otherwise to implement the protective actions proposed in the Plan. 6 The ASLB's glib assertion that "the protective actions of sheltering or evacuation are conceptually simple and capable of being understood by anyone," is no substitute for actual planning, written agreements, and a basis in the record for finding that protective actions can and will be implemented, i
The ASLB's refusal to apply the regulatory standards requires reversal of its ruling on Contention 24.J.
- 2. No Criteria for Recommending Protective Actions for the Radiosensitive (Contentions 60 and 63)
Contentions 60 and 63 allege that the LILCO Plan has no guidelines for recommending the protective actions of selective sheltering or selective evacuation, which the Plan indicates would be used to protect the radiosensitive. The ASLB ruled: " guidelines for these protective actions are not specifically set forth in the Plan. However, it was 45 See Pennsylvania Power & Light Co., 15 NRC at 782; Cincinnati Gas &
Electric Co., 17 NRC at 772-73; Metropolitan Edison Co., 14 NRC at 1639-
- 41. See also Consumers Power Co., 16 NRC at 1099 (not enough to assign
" responsibilities," must have evidence that responsibilities will be fulfilled).
0 Furthermore, contrary to LILCO's and the ASLB's characterization, the expected role of special facilities under the LILCO Plan is not simply to obtain assistance from LILCO. See, ,e.g., PID, 21 NRC at 833, 834. The Plan assumes that many facilities will provide evacuation transportation, and assumes that all facilities will agree to and implement LILCO's proposed evacuation methods and procedures. See Plan, App. A at IV-166 to 178.
1 l
l l
l never really intended that they should be." PID, 21 NRC at 776. The ASLB thus directly contradicts the very regulations it is charged with enforcing. Section 50.47(b)(10) provides that:
Guidelines for the choice of protective actions during an emergency, consistent with federal guidance, [must be] developed and in place . . . .
The lack of guidelines for protective actions for the radiosensitive constitutes a failure to comply with 10 CFR $ 50.47(b)(10) and NUREG-0654
$$ II.J.9 and J.10.m; on the record before it the ASLB had no basis for making a reasonable assurance finding as required by Section 50.47(a)(1).
- 3. No Planning for Evacuation of Hospital Patients (Contentions 24.G, 24.K, 60, 63, 72.D and 72.E) ,
LILCO proposes to recommend sheltering for patients of the three hospitals and the Suffolk Couity Infirmary even if evacuation is recommended for the general population. It will recommend evacuation "only if the lil ely dose to hospital populations is excessive.." PID, 21 NRC at 843. But, dose levels that LILCO would consider " excessive" are not defined or discussed in the Plan, and at trial the individual responsible for actually making the recommendation in an emergency could not define or describe what " excessive" would be. Tr. 8883-85 (Watts).
The ASLB's assertion that the selective action provision in the Plan is merely to provide for cooperation with the State of New York should it decide to help in an emergency (PID, 21 NRC at 776-77) misses the point.
LILCO asserted that while it would not recommend sheltering or evacuation just for the radiosensitive in the absence of State participation, it does intend to recommend sheltering or evacuation for the entire population if those actions are advisable for the radiosensitive.
Cordaro et al., ff. Tr. 8760, at 11; Tr. 8825 (Daverio). Thus, the lack of guidelines alleged in Contentions 60 and 63 remains critically I
important for the protection of the radiosensitive.
W I l
$ As the ASLB stated, "the decision whether to evacuate hospitals would be based on judgments made at the time of an accident rather than on l predetermined criteria." PID, 21 NRC at 842. Thus, LILCO's " plan" with a
i respect to evacuation of hospital patients is that LILCO "is prepared to i discuss the situation at the time of an accident." Id.
This ad hoc approach to protective action decisions is directly contrary to the requirements of Section 50.47(b)(10) and NUREG-0654
$ II.J.9. Further, the ASLB's acceptance of LILCO's excuse for this violation of the regulations -- that "LILCO considers this adequate because the likelihood of doses to hospital patients exceeding the EPA I
i PAG upper limit of 5 rem whole body is remote" (id.) -- is clear error.
i The NRC's emergency planning regulations require preparedness regardless l
i of the low probability of an accident.48 I
f Not only are there no guidelines to govern the recommendation of i
j evacuation for hospital patients, but LILCO's Plan acknowledges that if l it is necessary to evacuate hospitals, it could be done only through an i
j ad hoc expansion of transportation resources already fully committed to l evacuating other special facilities, and only if such resources become i
j available. Plan, App. A, at II-28, IV-172-73.49 Clearly, on the record .
I i
l 48
- Moreover, this ASLB conclusion also ignores the uncontroverted
! evidence that such doses can occur in a Shoreham accident. Finlayson et al., ff. Tr. 12,320, at 8-9. See also PID, 21 NRC at 774.
In discussing Contentions 24.G and 24.K, the ASLB recognized LILCO's
! inability to obtain access to a sufficient number of ambulances and i ambulettes to make evacuation of all special facilities including 1
! hospitals implementable. PID, 21 NRC at 829-31, 845-46. It acknowledged !
j that this " practical constraint . . . might have influenced LILCO to plan j for hospitals as it did." PID, 21 NRC at 846. Its ruling in LILCO's j
(footnote continued) i i l
I i
i 1
l.,-,.- ~.-,..,,,+.-.,-_--.-n.. _ - - , . . , , - . . , , , - , ,,- _ - w .w-,-- - m--,n n ,v
1 i
4 4
. before it, the ASLB had no basis for making the reasonable assurance i
i finding required by the regulations.
i The only defense asserted for this conceded absence of preparedness ,
is LILCO's belief that "an effort to preplan for hospital evecuation would be of marginal benefit" (PID, 21 NRC at 845), and the ASLB's
- similar conclusion
l [I]n the worst accident scenarios LILCO could not 4
extend the same level of radiation protection to all hospital patients that would be afforded to the general public by an evacuation that takes place in i about five hours. We find that for some hospital patients delay in evacuation could create an additional increment of risk from radiation dose that j is somewhat greater than that of the general public.
- The Board concludes, however, that the unquantified incremental risk to health and safety of some hospital patients under the LILCO Plan is small.
, Considering the severity of the accident that would l have to occur and the location of the hospitals, we conclude that the additional increment of risk to
} hospital patients over that of the general public
} does not stand as a barrier to licensing. We l conclude that LILCO has sustained its burden of proof i on this contention.
l PID, 21 NRC at 846. Neither the location of the hospitals, the fact that their transportation requirements may fluctuate, nor the allegedly low i probability of a severe accident are valid excuses for LILCO's failure to l
plan, or for the ASLB's decision that an increased risk of radiation !
l
! doses is acceptable.50 The ASLB's disregard for the regulations by >
i l (footnote continued from previous page)
I favor on Contentions 24.G and 24.K, in the face of LILCO's acknowledged l inability to implement hospital evacuations, was clear error.
50 1
See, e.g., Cincinnati Gas & Electric Co., 17 NRC at 774 n.19, in which the Appeal Board stated:
i j (footnote continued) o i
~
f
- , , .._..,._,_.__..,,__,,,_,,,-_._..._,_.,,.,__________.m,, - _ _ , - - - - . . _ . , , , , , , . . . .
refusing to acknowledge LILCO's clear failure to comply with 10 CFR
$$ 50.47(a)(1), (b)(10) and NUREG-0654 6 II.J.10 should be reversed.
- 4. No Relocation Centers for Hospitals (Contentions 24.N and 72.C)
On a related issue, the ASLB's rulings on LILCO's failure to identify or to obtain agreements from relocation facilities for hospital and special facilities patients make no sense. It found the Plan deficient in failing to identify and obtain agreements from reception centers for nursing homes and health care facilities (PID, 21 NRC at 840-41), but found that "no additional benefit to public health and safety could be obtained by requiring letters of agreement between EPZ hospitals and potential receiving hospitals." Id. at 840. Neither the Wolf Creek case, acknowledged by the ASLB as requiring letters of agreement with reception centers for special facilities, nor NUREG-0654 (footnote continued from previous page)
! This emphasis on the need for sufficiently developed
! school evacuation plans should not be taken as implying a belief that, in the event of a serious accident, this particular protective measure necessarily would have to be invoked. To the contrary, depending upon their appraisal af the situation confronting them, the responsible officials might well decide that the better course would be to shelter the students in the school buildings. Our point is instead simply that Commission regulations plainly require the formulation of satisfactory evacuation plans as a part of the overall emergency preparedness effort. Moreover, at least if adequately developed, those plans should aid materially the making of an informed judgment respecting which available protective measures are most suitable in the totality of the circumstances attending the specific emergency at hand.
(Emphasis added).
"E" - ---.---A - , - - - - -
l l
SS II.A.3, J.10.d, and J.10.h, distinguish between nursing or health care facilities and hospitals.51 LILCO has not identified or obtained agreements that demonstrate a capability to relocate hospital patients in the event of evacuation. Neither its " intent" to list some hospitals in the Plan in the future, nor the ASLB's belief that "LILCO has done all that could be reasonably expected in its attempt to find relocation centers for hospitals" (PID, 21 NRC at 840), satisfies the regulatory standards. The ASLB should be reversed on Contentions 24.N and 72.C as applied to hospitals.
- 5. No Planning for Sheltering Hospital Patients (Contention 72.D) i Finally, despite LILCO's reliance upon sheltering as the " primary" protective action for hospitals, the ASLB acknowledged that there are in i l existence no facility-specific plans under which a sheltering i
l recommendation coald be implemented, even though the Plan states that such facilities "will be directed to implement their sheltering plans."
gee PID, 21 NRC at 777; Plan, App. A at IV-173 to 174. Clearly, this lack of facility-soecific preplanning -- a requirement not only under NRC regulations but also an assumption in the Plan itself -- compels a finding that there is no reasonable assurance that sheltering can or will be implemented for hospital and Infirmary patients.
51 ee PID, 21 NRC at 838; Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53, at 70-71 (1984).
Indeed, in Wolf Creek, agreements were expressly required for reception centers for hospitals, even though there was testimony about " verbal arrangements" similar to those relied upon by LILCO.
The ASLB's observation, based on testimony that LILCO has visited (footnote continued)
C. Credibility and the Evacuation Shadow Shadow Phenomenon (Contentions 15 and 23)
The ASLB's rulings on Contentions 15 and 23 are also contrary to the evidence and fail to apply the regulatory standard of Section 50.47(a)(1). Those contentions focus on whether protective action recommendations made by LILC0 during a Shoreham emergency would be implemented. Contention 15 alleges they would not, because LILCO's lack of credibility would cause the public to ignore or disobey LILCO's recommendations; Contention 23 alleges they would not, because a mix of factors, including LILCO's lack of credibility and the public's perception of the danger of a radiological emergency, would result in an evacuation shadow (or voluntary evacuation) even if sheltering or no protective actions were recommended by LILCO. The evidence presented and the ASLB's own conclusions on these contentions preclude the " reasonable assurance that adequate protective actions can and will be taken" finding required by Section 50.47(a)(1). Accordingly, this Board should reverse the ASLB's findings in favor of LILCO on these contentions.
- 1. LILCO's Lack of Credibility (Contention 15)
~
All parties and the ASLB agreed that LILCO has very low credibility.
PID, 21 NRC at 691. In addition, all parties agreed and the ASLB acknowledged that if the public does not believe that the source of an (footnote continued from previous page) facilities, discussed suggestions, and agreed to assist facilities to develop procedures that "[als'to the practical implementation of sheltering, plans . . . at special facilities are well along in their development .. . . (PID, 21 NRC at 778) does not satisfy the regulatory standard of Section 50.47(a)(1). See also Cincinnati Gas &
Electric Co., 17 NRC at 773 and 774 n.19; Metropolitan Edison Co., 14 NRC at 1640.
t
i i
emergency message is credible and reliable, emergency recommendations will not be followed. Tr. 1586-87, 1590, 1595-96, 2016-17 (Sorensen);
1509 (Dynes, Mileti); Cole, ff. Tr. 10,727, at 13; PID, 21 NRC at 22-24.
4 Since under LILCO's Plan, LILCO is the sole source of protective action recommendations, these two uncontroverted facts lead to the conclusion that there can be no assurance that protective actions recommended by LILCO would be taken during an emergency. The ASLB refused to make that finding even though the uncontroverted evidence required it. Instead, it adopted speculative theorizing by a LILCO social scientist witness and, without any factual basis, found that LILCO's lack of credibility was not "a substantial bar" to the working of the LILCO Plan. PID, 21 NRC at l 691. ,
1
! LILCO's theory is that if certain " principles" are applied, protec- t tive action recommendations made by a source with very low credibility would nonetheless be followed by the public. Even the ASLB scknowledged, however, that neither LILCO nor the theory's proponent was able to cite i 1
any evidence whatsoever to support their speculative hypothesis. PID, 21 NRC at 690; Tr. 10,557-64, 10,578-88 (Mileti). Furthermore, although several self-fulfilling " principles" were identified by LILCO's Dr.
- Mileti (see PID, 21 NRC at 689-90), the so-called "important determinants of belief" -- i.e., the substance of what LILCO (and the ASLB) believe i
would overcome LILCO's present lack of credibility -- boil down simply to a reference to scientists and nuclear engineers in the EBS messages to be transmitted during an emergency, and the allegedly resulting availability !
of " multiple sources" of warning. PID, 21 NRC at 689.
42 I
l 1
There is no basis to find that these LILCO efforts provide reasonable assurance that LILCO would be believed during an emergency.
In fact, Appellants' evidence demonstrated that LILCO's proposed reference to scientists would not overcome LILCO's lack of credibility and that multiple information sources would result in conflicting information being disseminated to the public.53 The ASLB ignored the evidence of record, however; its ruling was based solely on speculative theorizing and applied the wrong legal standard. The ASLB's conclusion l was:
[I]n an emergency, people will seek information from i many sources, and will likely credit most the information and recommendations received from many sources, especially if they view the sources as relying on trained specialists. Applying the principles Dr. Mileti outlined above should provide l the greatest probability that sensible recommen- l dations sensibly made will be followed . . . . We ;
find that the public's general reluctance to believe the utility will not be a substantial bar to the working of the LILCO Plar.
It is probably true that LIICO lacks credibility with a substantial fraction of the public, and in some rare cases that lack may lead to an increase in dose l
3 Se_e, e g , Cole, ff. Tr. 10,727, at 17-18; Purcell et al., ff. Tr.
10,727, at 70-72; Tr. 1622-23 (Sorensen) (value of " mix of sources" diminished if LILCO is perceived as information source); Tr. 10,501 (Weismantle); Tr. 10,823-24 (Cole) (scientists referenced in LILCO's EBS messages are affiliated with LILCO and affiliation will determino >
public's perception of their credibi.11ty); Tr. 9766-69, 9771 (Barnett)
(utility-affiliated scientists and engineers have a level of credibility l
no different than that of utility management); Tr. 10,523 (Sorensen) (no af filiation with utility makes scientific experts ef fective); Cole, ff.
Tr. 10,727, at 17-18; Tr. 10,615-20, 10,703 (Clawson); Tr. 10,521 ;
(Sorensen) (contradictory scientific information is likely to be avail-able and believed by the public); Tr. 10,519-20 (Weismantle) (neither NRC or DOE representatives would be on the scene during the crucial early stages of an emergency).
for some portion of the public, but it seems to us that given the proper application of the principles
[ proposed by Mileti) . . . and given an actual emergency, public response will not be substantially impaired by lack of credibility.
PID, 21 NRC at 691, 701 (emphasis added).
As the ASLB acknowledged, there is no evidentiary basis for the conclusion that applying the so-called Mileti principles would result in l public belief or willingness to obey LILCO protective action recommendations. Thus, there is no basis for the underlying premise of the ASLB's holding. In addition, nowhere in its opinion did the ASLB make a factual finding that the Mileti principles have been, would be or could be applied in implementing the LILCO Plan, nor is " proper" application anywhere defined by the ASLB. Instead, the ASLB merely made a contingent and wholly speculative assertion that if the principles were applied, it "seems to" the ASLB that there "should" be a " probability" that recommendations would be followed. Final'y, the finding that application of the Mileti principles "should provide the greatest probability" that protective actions would be taken as recommended by LILCO, clearly does not satisfy the Section 50.47 standard. The ASLB i simply ignored its obligation under that section. It never found, and on
( the evidence before it could not have found, reasonable assurance that l
l protettive actions recommended by LILCO during an emergency would be implemented. The ASLB's refusal to fulfill its responsibility under the l regulations requires reversal.
1 :
In ruling on the individual Subparts of Contention 15, each of which i dealt with a particular aspect of LILCO's Plan which could not be '
l
l implemented as a result of LILCO's lack of credibility, the ASLB similarly ignored the evidence of record and the Section 50.47 standard and instead made speculative findings without any basis in the record.
For example, with respect to Contention 15.C, which asserts that there is no r isurance that appropriate protective actions for schools would be implemented because school authorities do not find LILCO credible, the ASLB ignored overwhelming evidence presented by representatives of the very school districts in question that they would not rely on information from LILCO in making decisions during a Shoreham omergency. Purcell et al., ff. Tr. 10,727, at 36-38, and Att. 6; Muto and Smith (Credibility),
ff. Tr. 11,001; Jeffers and Rossi (Credibility), f f. Tr. 11,001; Petrilak (Credibility), ff. Tr. 11,001. Without any evidentiary basis, the ASLB simply asserted its personal speculation: "it seems unlikely to us that any strong disbelief of EBS messages or telephonic communications would occur," and "it seems to us most unlikely that disbelief of LILCO would interfere with the protection of students in the surrounding schools."
pID, 21 NRC at 606-97 (emphasis added). Such findings without evidentiary basis constitute clear error and must be reversed. In addition, the ASLB's personal belief that something is "unlikely" does not constitute the necessary affirmative finding of reasonable assurance required by Section 50.47.
The ASLB's findings on Contention 15.F suf fer from the same defect.
That contention alleges that LILCO's proposed rumor control procedure, according to which the public is expected to contact LILCO offices for information concerning the emergency response, could not and would not 1
operate as an effective rumor control mechanism as required by NUREG-0654, 6 II.G.3.c. Appellants presented uncontroverted evidence that the '
premise underlying LILCO's rumor control proposal -- that people would call LILCO for information -- is simply incorrect. Purcell et al., ff.
Tr. 10,727, at 74-78. LILCO's own witness testified that she did not know whether people would call LILCO's rumor control point, and that it was just as likely they would call other information sources for emergency information. Tr. 10,672-75 (Clawson).54 Despite the lack of evidence contradicting that of Appellants, however, the ASLB flatly asserted "we think it unlikely that people would, as Intervenors' witnesses suggest, be reluctant to call LILCO phone numbers in an emergency." PID, 21 NRC at 700. Moreover, the ASLB's conclusion is more speculation: "The Board believes, after careful consideration of the witnesses' statements, that LILCO's rumor control plan cy be effective."
Id. (emphasis added). A belief that it is possible that the LILCO Plan would work does not satisfy the legal standard. The ASLB failed to make the necessary finding that LILCO's proposed rumor control plan would be_
implemented in the event of an emergency.
The ASLB's Contention 15 conclusions must be reversed as clearly erroneous. In addition, those conclusions are the underlying premise for the ASLB's findings on other contentions, most notably Contentions 23 and
- 65. Since, as we discusr below, the ASLB assumes with respect to 54 The only evidence cited ay the ASLB concerning whether the public would call LILCO for information is that LILCO customers called LILCO district offices, whose phone number is on customers' bills, more than a million times in 1983. PID, 21 NRC at 699. Clearly, that evidence has no relevance to what the public would do during a radiological emergency.
Contentions 23 and 65 that the public would believe LILCO instructions 4
that tell them they should shelter or should not evacuate, the errors on
, Contention 15 require reversal of the ASLB's rulings on those other contentions as well.
- 2. The Evacuation Shadow Phenomenon (Contention 23)
The ASLB's rulings on Contention 23 suffer from the same defect as
- those on Contention 15. They are not based on evidence of record, they l rely on speculative theory with no demonstrated nexus or relationship to the LILCO Plan or the facts before the Board, and they Agnore the i
governing regulatory standards.
There were basically only two issues in controversy on Contention 23: the likely magnitude of the evacuation shadow in a Shoreham emergency, and the consequences of that shadow. PID, 21 NRC at 656. In fact, those two matters boil down to one dispositive question: is there reasonable assurance that the public would obey LILCO recommendations to shelter or to take no protective actions, or would large numbers evacuate regardless of the LILCO recommendation. Appellants presented evidence that substantial numbers of people are likely to evacuate regardless of LILCO's recommendations, based upon actual events during the TMI accident, five surveys of Long Island residents, and the body of l
knowledge concerning human behavior. See Zeigler and Johnson, ff. Tr.
2789; Cole, ff. Tr. 2792. LILCO's position boiled down to an argument that if the public is presented with " good" information during an j emergency, its response would be to obey LILCO's recommendations. See i
Cordaro et al., ff. Tr. 1470, at 41-42. LILCO's theory, which the ASLB adopted, avoids the very issue presented by Contention 23 by assuming it out of existence. Thus, rather than addressing what people are likely to I
do given a radiological emergency on Long Island, the proposals in the LILCO Plan, available data and analogous situations, both LILCO and the j ASLB addressed a totally different issue. They defined " good emergency
- information" as, in essence, information the public would find credible and that it would obey (see, e.g., id.), and then concluded, not l
surprisingly, that if LILCO were to disseminate " good emergency infermation" during a Shoreham emergency, the public would obey LILCO's
} recommendations. As we demonstrate below, this circular reasoning
, advanced by LILCO and adopted by the ASLB flies in the face of factual evidence presented by Appellants, deals with a hypothetical " theory" rather th in the LILCO Plan and the factual realities on Long Island, and t
disregards the reasonable assurance criteria of the NRC's regulations.
First, the evacuation shadow which occurred at TMI is not in dispute. PID, 21 NRC at 657-58. The ASLB essentially disregarded the j
j events of TMI, however, in its analysis of the likely magnitude of the i
- evacuation shadow in a Shoreham emergency. The ASLB attributed the TMI public's reaction to two factors
- " reasonable people would [have
! thought] at the time that the situation was dangerous," and " reasonable -
, people would'[have thought] that confusing information was being disseminated to the public." PID, 21 NRC at 658. Thus, the ASLB concluded:
- the sense of immediate danger endured by residents in the TMI vicinity as the accident situation unfolded, i
3
. , _ . - - _ . . _ , - - . _ _ _ ~ . _ , - - . _ . , . _ , , , _ _ . , _ _ _ . _ . , _ , _ , _ . , _ _ . . _ , , _ - . - - , . _ . . _ , , _ _ . _ . _ _ _ . . . _ - -
-- . . ~ -. . .. .- -- . . . . . _ - - -- -..-, - _.~._ .. . - -
i 1
and the inadequate and confusing information that was ,
l released during a time of perceived danger, are sufficient to account for the evacuation of 144,000 residents [even though only 2,500 were advised to evacuate).
PID, 21 NRC at 658. Nowhere did the ASLB cite any evidence, nor was any proffered, that during a Shoreham emergency reasonable people would not think that the situation was dangerous, just as the ASLB found occurred at TMI. Nor was there any evidence that during a Shoreham emergency there would not be information perceived by the public to be confusing, conflicting, or inadequate. To the contrary, as noted above, the evidence demonstrated that there is very likely to be conflicting information disseminated during a Shoreham emergency, and even the ASLB found that large numbers of people on Long Island fear radiation and l
believe nuclear plants are dangerous. See PID, 21 NRC at 665-67; Cordaro 4
- et al., ff. Tr. 1470, at 111. Clearly, given the ASLB's own explanation for the evacuation shadow at TMI, there was no basis in the factual record for ignoring the TMI evidence in assessing the likely public response to a Shoreham emergency.55 Further, the ASLB itself acknowledged the purely speculative nature of its finding
i The Board's ultimate finding on . .
. contention [23]
. strongly depends on there being clear nonconflicting notice and instructions to the public at the time of an accident. If for any reason confused or conflicting information was disseminated at the time
! of an accident, the Board accepts that a large excess evacuation on Long Island could materialize.
i i 55 See also Tr. 1739-40 (Sorensen) (can use TMI to predict events in other nuclear accidents).
f
_. - . - . - . = . , . -_-. - - .- - .
i l
PID, 21 NRC at 670 (emphasis added). Indeed, given LILCO's acknowledged I lack of credibility, and the lack of governmental involvement in implementing LILCO's Plan in contrast to the situation at TMI, it is likely that the Shoreham evacuation shadow would be even larger than that which occurred at TMI. 6 Second, five separate public opinion surveys conducted on Long Island during 1982, 1983, and 1984, all reached the same general l conclusion: in response to a question containing the type of information likely to be conveyed by LILCO if there were a Shoreham accident, and the query whether in response the individual would go about his normal 4
business, stay inside his home, or leave home and go somewhere else, a a
large number indicated an intention to evacuate, even if advised to do j nothing or to stay home and shelter. PID, 21 NRC at 663-65; Zeigler and Johnson, ff. Tr. 2789, at 15-16; Cordaro et al., ff. Tr. 1470, at 99-102, 1
110; Tr. 1890-97 (W. Johnson). Upon LILCO's urging, however, the ASLB l
found that these consistent survey results could be totally disregarded.
The ASLB determined to "give little weight to the predictive findings of
- the public opinion polls" based on two findings
- that the polls "did not 56 See e.g., Tr. 1509-11, 10,589-90 (Sorensen) (low credibility of information sources at TMI was an important reason people evacuated contrary to instructions); Tr. 1781-85, 1507-08, 1513-15 (Dynes, Mileti)
(absence of local government participation could adversely affect public response because it is more difficult to disseminate " good" emergency l information). Furthermore, citations of other NRC cases which allegedly have considered the evacuation shadow phenomenon are inapposite. In this case, the ASLB was faced with factual evidence about the LILCO Plan and attitudes of people on Long Island; its findings on the implementability of LILCO's Plan must rest on such evidence, not theoretical discussions 7 or conclusions arrived at in the context of other plans and other evidence.
l :
i
4 and could not supply respondents with the urgent tone and situation 1
specific information that would be publicly available in a real
, emergency"; and, that "the missing information is precisely that which
.LILCO says it will disseminate in an emergency." PID, 21 NRC at 666-67.
3 These findings are without basis, and directly contradict both the evidence presented by Appellants and LILCO, and NRC precedent.
i Furthermore, a review of the evidence, survey questions and the proposed i
EBS messages in the LILCO Plan reveal that the surveys intentionally i
duplicated the information proposed to be disseminated by LILCO, as well as that disseminated at TMI. 8 The ASLB ignored this fact, and simply assumed, without any stated basis, that so-called " situation specific information" during an emergency would be substantially differet.t from, i and/or would cause an altogether different public perception than, the
- Shoreham-specific scenarios presented in the surveys, or the " situation-specific" information disseminated during TMI. '
In rejecting both the evidence from TMI and that provided by the ,
i a surveys, the ASLB ignored the only evidence of record upon which it could 4
57 l See, e E., Duke Power Co., 20 NRC 935 at 951; Cole, ff. Tr. 2792, at 2
18-19, 25-31; Tr. 2825-26, 2828 (Cole); 1815 (Dynes); 1822-24 (Sorensen);
1824-30 (Richardson); 1106-07 (W. Johnson).
t 58 See Tr. 2813-22 (Cole); Cordaro et al., ff. Tr. 1470, at 99-102; Tr.
1890-97 (W. Johnson); OPIP 3.8.2.
Similarly, there is no evidentiary basis for the ASLB's implied
! conclusion that an " urgent tone" during an actual Shoreham emergency
- would result in an evacuation shadow smaller rather than larger than that i predicted by the five surveys.
i i
i have based the required factual finding for ruling on Contention 23.60 In so doing it committed clear error. The result of this error was a
" finding" that is pure speculation. Without any basis in the factual record, the ASLB assumed not just that LILCO would disseminate " good emergency information," (self-servingly defined as different from that disseminated during TMI and that replicated in the surveys); more importantly, it assumed that the information disseminated during a Shoreham emergency would be perceived differently by the public on Long Island than that disseminated during TMI and replicated in the surveys.61 Based solely on those two speculative assumptions, the ASLB concluded that there would be no significant voluntary evacuation during a Shoreham emergency. The Appeal Board must reject this circular analysis.
60 LILCO's argument that public behavior during an accident at the Ginna plant in 1982 demonstrates that there will be little evacuation shadow behavior is inapposite. No protective action recommendations werc ever issued during the Ginna incident (Tr. 1738 (Sorensen)), and at Ginna, the utility was not in command and control of the off-site response nor was it responsible for communications to the public. Therefore, the events j at Ginna do not support a conclusion that information provided by LILCO in a Shoreham emergency would result in a small evacuation shadow, particularly if protective actions were recommended.
i 61 There was no dispute that a crucial determinant of behavior during an emergency is the individual's perception of the risk. See, e.g., Tr.
- 1535-37 (Sorensen); PID, 21 NRC at 660, 662. There was also agreement that pre-emergency fear of radiation affects behavior during an emergency ,
by shaping an individual's perception of the risks as well as his understanding of the information disseminated. PID, 21 NRC at 661-62; Cordaro et al., ff. Tr. 1470, at 61. Further, the surveys demonstrated, and the ASLB found, that large numbers of people in Suffolk County fear radiation and believe nuclear power plants are dangerous (see PID, 21 NRC i at 665-67; Cordaro et al., ff. Tr. 1470, at 111; Cole ff. Tr. 10,727, at i
5), and attitudes about nuclear power remain very stable over time. Cole ff. Tr. 2792, at 18-19; Tr. 1421-23 (J. Johnson). There is no evidence of record beyond the speculative theorizing of LILCO's witnesses, to support a finding that the perceptions of Suffolk County residents about radiation and nuclear plants would change during a Shoreham emergency.
i
- d I
- - . . . . _ - , . , - , , . ,,,~,,,,,,..,.,--,.,-.,.-,-..,.-n.-., -
.- ~_-,-,,.n-~,--------.--
l l
1
- 3. The ASLB Erred in Ignoring the Regulatory !
Standards on Contentions 15 and 23 The ASLB's errors on Contentions 15 and 23 went beyond a refusal to acknowledge the evidence and the adoption of a theoretical construct rather than addressing factual realities. The ASLB acknowledged that LILCO's credibility and the likely evacuation shadow -- even in the diminished proportions assumed by the ASLB -- would cause LILCO sheltering recommendations not to be implemented and would result in an increased radiation dose to some portion of the public. PID, 21 NRC at 667, 635-96, 701. But, the ASLB refused to find that there is no reasonable assurance that sheltering would be implemented, or that there is no reasonable assurance that the public would be adequately protected under the LILCO Plan. Instead, it simply opined, contrary to the evidence, that the non-implementation of a sheltering recommendation would not happen in large numbers. PID, 21 NRC at 667. The only stated bases for that opinion are the ASLB's own pronouncements, echoing the unsupported LILCO " theory": 1.e., " people will act predominantly in accordance with the emergency information given to them"; "our finding of rationality . . . compels the conclusion that the public will consider the information it receives and will react predominantly in a manner that 62 Under the LILCO Plan, sheltering would be the recommended protective action when it is projected to result in a smaller dose than evacuation.
Accordingly, sheltering is the likely recommendation in the event of a fast breaking accident. See PID, 21 NRC at 695-96. As the ASLB and LILCO acknowledged, however, persons who, in the face of a LILCO sheltering recommendation, attempt to evacuate because they do not believe LILCO or due to other factors which contribute to the evacuation shadow, would be caught in a passing plume and would receive no protection from their automobiles. PID, 21 NRC at 667, 696, 770.
is consistent with the advice given"; and, " people are not stupid." Id.
at 667, 670, 668.
The ASLB's bald assertions, notwithstanding their authoritative tone, are not facts. They cannot be used as a bootstrap to avoid the finding mandated by Section 50.47. On the record before it, the ASLB had no basis to predict that the number of people who would disregard LILCO sheltering recommendations and receive substantial doses would be small.
Indeed, the evidence supports precisely the opposite conclusion -- that the number would be very large. Only LILCO's theory and the ASLB's circular assumptions support the conclusion that the number would be small or insubstantial. Clearly, on the record before it the ASLB could not make the affirmative reasonable assurance finding required by the regulations.0 Therefore, its finding for LILCO on Contentions 15 and 23 should be reversed.
D. Role Conflict (Contention 25)
The dispute concerning Contention 25 again was one of theory versus fact. The contention alleges that LILCO's Plan cannot be implemented and 10 CFR SS 50.47(a)(1), (b)(1), and (b)(3) are not satisfied, because a substantial number of the persons relied upon to perform functions 63 Furthermore, the ASLB's reasoning - "[a]1though the Board agrees with the County (as does LILCO) that [the decision to evacuate when sheltering is recommended) might be [made] by some individuals, we do not find that it will happen in such numbers as to make a sheltering recommendation impossible to implement" -- (PID, 21 NRC at 667) does not address the regulatory standards. The fact that it would be possible for some people to shelter even if the vast majority of the public refused to obey a sheltering recommendation has no relevance; under the NRC's regulctions, the issue is whether there is reasonable assurance that sheltering would be implemented, not whether implementation would be impossib!e.
i i necessary to implement the Plan would attend to the safety of their families prior to, or in lieu of, performing their assigned duties under the Plan. Scientific literature, evidence from TMI, survey data, and testimony presented to the ASLB by the very individuals expected to perform during an emergency all demonstrated that substantial numbers of
}
the persons relied upon by LILCO would resolve role conflict in favor of a
their family obligations. In ruling, however, the ASLB refused even to j consider proffered, relevant and probative evidence, ignored testimony it i
admitted into evidence, and instead adopted another speculative LILCO theory.
l
, The evidence established that the majority of# experts in the field i
! support Appellants' position that a large number of people facing a role conflict during an emergency would resolve it in favor of loyalty to j their families even if they have emergency response duties or training.
PID, 21 NRC at 672-73.0 LILCO's response was to characterize the i
- literature and analyses of role conflict resolution in actual disasters i
j as " uninformed" and merely to assert that " emergency workers who have a j clear notion of what their emergency role is perform their jobs in i
I 64 l See Cordaro et al., ff. Tr. 831, at 44-45, 54-59; Tr. 979-95 (Mileti,
- Dynes); Tr. 1331-34, 1399-1400, 1412 (Erikson); Erikson and Johnson, ff.
Tr. 1455, at 13-18. The evidence also established that this resolution
~l would be even more likely in an emergency involving radiation. Erikson and Johnson, ff. Tr. 1455, at 19-20. The ASLB's findings that "the preponderance of the evidence indicates that emergency workers would respond to a radiological emergency in essentially the same manner as i they respond to nonradiological emergencies," and "the evidence does not
} indicate that a fear of radiation would exacerbate role conflict among j emergency workers" (PID, 21 NRC at 676), are thus without basis and i erroneous. As discussed in the text, the only available evidence 1 concerning radiological emergencies -- that from TMI and Ginna -- does
- not support those findings.
i l t e
i l
- . , , _ . - ~ . _ , , _ . , _ . - - ~ . , , _ , - , . . , , . - - - , - - - - . - . . . . _ , . - , - , , , . - _ - . _ . - . , _ , . -. .m,.m_, ._
l l
l emergencies." Id.65 LILCO's theory is a definition game similar to that !
I employed on Contentions 15 and 23. The circular reasoning adopted by the l ASLB on role conflict goes as follows: If an individual is a " trained" emergency worker with "a clear notion" of his emergency role, he will perform that role despite conflicting obligations to his family. All examples of nonperformance, even by trained individuals in emergency response organizations, are dismissed as instances of individuals without the appropriate " clear notion," or not properly " trained."66 Since by LILCO's definition, all individuals to be relied upon by LILCO will be
" trained" and have a " clear notion" of their roles in the Plan,67 gt follows that such workers, or a "suf ficient" number of them, will perform those roles in an adequate and time?y manner in an emergency. The PID reveals that there is no factual support in the record or in the research literature for this theory's premise, or for its applicability to any of the individuals relied upon in the LILCO Plan, much less to a " sufficient number" of them. Thus, the ASLB erred in finding that role conflict "will not be a significant problem at Shoreham and that a sufficient number of emergency workers will respond in a timely fashion to perform their assigned duties." PID, 21 NRC at 679.
65 A review of the ASLB's discussion of "llistory and Literature Concerning Role Conflict" (PID, 21 NRC at 672-73), reveals that LILCO's witnesses conceded the relative lack of support for their position, and were relegated to an " argument" of their theory.
66 See, e.g., Cordaro et al., ff. Tr. 831, at 44-51, 83-83; Tr. 979-95 (Mileti).
- ' 67 But see discussion in Section K below, 1
The ASLB also ignored or refused to consider at all the factual evidence submitted by Appellants which demonstrated the baselessness of LILCO's theory.
- 1. The ASLB Erred in Refusing to Admit Teachers' Testimony Suffolk County submitted direct testimony by a panel of 11 teachers and one librarian from school districts in the Shoreham EPZ.68 The proffered testimony, based upon the witnesses' personal knowledge and experiences, discussed (1) personnel requirements for implementing LILCO's proposed protective actions for schoolchildren, and (2) how teachers would resolve role conflict in a Shoreham emergency. In response to a LILCO " Motion to Strike or for Discovery and Rebuttal,"69 the ASLB struck the testimony in its entirety, ruling that it was not relevant; to the extent it was relevant, the ASLB excluded it because of
" considerations of undue delay, waste of time, or needless presentation 0
of cumulative evidence.
68 Direct Testimony of Juanita Zuckerman, Joseph A. Stalzer, Ronald Posnack, Georgiana S. Fisher, Bruce R. Kagan, William F. Bautz, Lynn Capobianco, Anthony Fiorelli, Patricia Ann Liano, Marguerite DeSantis, Lester Kiehn, Howard Katzoff on Behalf of Suffolk County Regarding
, Emergency Planning Contention 25.D.
69 LILCO's Motion to Strike or for Discovery and Rebuttal on the Testimony of Juanita Zuckerman, Joseph A. Stalzer, Ronald Posnack, Georgiana S. Fisher, Bruce R. Kagan, William F. Bautz, Lynn Capobianco, Anthony Fiore111, Patricia Ann Liano, Marguerite DeSantis, Lester Kiehn, Howard Katzoff, Nov. 28, 1983 (hereafter, "LILCO Motion").
O Tr. 790-91 (citing Fed. R. Evid. 401 and 403). The ASLB ruled the testimony not relevant "because it does not have probative value to establish that the facts asserted therein are more probable than they would be without the evidence." Id. See also Order Confirming Changes in Schedule with Regard to " Group II" Contentions and Rulings on Motions to Strike, Dec. 2, 1983 (the " December 2 Order").
1
_ _ _ _ ~ . _ _ ._ _ _ _ _ _ _ _ _ . . - -
. - - - - . - - - . _ = - -- __
i The ASLB's ruling was clear error. The Board provided no reasons for its finding that the testimony was without probative value or j irrelevant, and even LILCO acknowledged that if true the testimony was "of consequence to the determination of the action." The teachers'
- testimony was of significant value. It was presented by fact witnesses i
) who deal every day with the practical realities which the ASLB had to j confront in deciding the role conflict issue in Contention 25.D. The ASLB's refusal even to consider the testimony of persons whose behavior it was attempting to predict in ruling on Contention 25 must be reversed.
i
) 2. The ASLB Erred in Refusing to Admit Survey Evidence on Trained Emergency Workers
- Similarly, the ASLB refused to admit into evidence testimony j submitted by Suffolk County discussing (1) the results of a survey of 1
volunteer firemen in the EPZ to determine how they would resolve' role I The ASLB's error is discussed in full in Suffolk County Objections to j Prehearing Conference of Counsel Orders and Motion for Reconsideration, Dec. 8, 1983, at 10-18. Space constraints permit only a summary discussion here.
i 72 LILCO Motion at 6. Further, if the unexplained ASLB ruling relied upon LILCO's arguments, such reliance cannot be justified. LILCO's attack on the witnesses' credibility (LILCO Motion at 6-9) went to the j
weight, not the admissibility, of the testimony; the proper remedy was i cross-examination, not striking the testimony. LILCO's argument that the l testimony was not reliable because the witnesses were not presented "as
, technical expert vitnesses," or because there was no indicat. ion that they statistically represented a larger group (LILCO Motion at 9), was irrelevant. The witnesses were fact witnesses, and there is no j requirement in NRC rules that witnesses must represent a statistical sample of other people engaged in the same profession. For example, the
- parties were never required to show that particular social scientist l witnesses statistically represented all social scientists in their fields I in order to have their testimony admitted. Further, whether the personal i knowledge and experience which formed the bases for the teachers' i testimony could reliably be generalized to other teachers in the EPZ was a matter properly pursued upon cross-examination.
i 1
58 -
J l
I l.
-..--, - .- ,_ - _ - . .. -. - ,._-. - - .. ,. ... .__%m_..,,.,-..--.,,~_.-_-.,_c,w--,.--~..,,._,-,-.
conflict in a Shoreham emergency, and (2) the results' applicability to the implementability of the LILCO Plan. Tr. 792; December 2 Order at !
- 4. The ASLB's ruling was only that the testimony was " irrelevant"; no i reasons were provided. Id. It is clear, however, that although the Plan does not rely upon volunteer firemen, in light of LILCO's role conflict theory and the ASLB's findings which adopted that theory, the results of the firemen survey were very relevant and highly probative. The individuals surveyed were, to use LILCO's terminology, " trained emergency workers." The ASLB found that in a Shoreham emergency, such workers would resolve role conflict in favor of their emergency dutier. The survey results indicated, however, that in fact large numbers of trained emergency workers on Long Island would resolve role conflict in favor of first attending o their families. Not only did the testimony thus bolster Appellants' position that the facts do not support the LILCO theory, but the stricken testimony also contained the expert opinion of Drs. Johnson, Erikson and Cole explaining why the firemen survey results are highly probative of how other workers relied upon by LILCO would respond to role conflicts. Clearly, in light of the ASLB's findings, its refusal even to consider this evidence was clear error which substantially prejudiced Appellants.75 3
Cole, ff. Tr. 1216, at 12-16, 18; Erikson and Johnson, ff. Tr. 1455, at 24-26, 28, 30.
See, e.g., Cincinnati Gas & Electric Co., 17 NRC 760 at 772 .
(testimony on role conflict survey of volunteer firefighters " raises a serious question as to whether bus drivers could be depended upon").
75 This ASLB error was also discussed in the Suffolk County Objections (footnote continued)
- 3. The ASLB Ignored Evidence in the Record The ASLB also ignored factual evidence of record from the very people whose behavior it was attempting to predict, in favor of pure speculation by LILCO witnesses. Thus, with respect to Contentions 25.C and D, it dismissed detailed testimony by school administrators, who deal regularly with transportation and personnel requirements for early dismissals. These witnesses emphatically stated that based upon experience in other types of emergencies, role conflict would make it impossible to implement LILCO's early dismissal proposal in a Shoreham 6
emergency. Amazingly, and without explanation, the ASLB found this testimony by persons intimately involved with the realities of the matter at issue " outweighed" by Dr. Mileti's " belief" and FEMA's testimony about the " history of disaster response" (not including any radiological
]
disasters). PID, 21 NRC at 677-78; Tr. 2093-95 (McIntyre); Mileti, ff.
Tr. 831, at 366. The ASLB also arbitrarily rejected Appellants' evidence concerning a survey of school bus drivers, again relying upon Dr.
Mileti's opinion. See PID, 21 NRC at 675-76. With respect to health (footnote continued from previous page) to Prehearing Conference of Counsel Orders and Motion for Reconsideration, Dec. 8, 1983, at 18-22.
See PID, 21 NRC at 677; Tr. 3104, 3174-75, 3178 (Smith); Tr. 3089-91 (Petrilak); Tr. 3128-29 (Rossi); 3150-54 (Jeffers, Rossi); Petrilak, ff.
Tr. 5087, at 2-3; Jeffers and Rossi, ff. Tr. 3087, at 3; Tr. 9541-43; SC Ex. 54.
The error involved in the ASLB's finding that the survey has no predictive value is discussed in Section III.C.2 above. It must be reversed as clearly contrary to the holding in Cincinnati Gas & Electric c
Ce., 17 NRC 760 at 772-73. Furthermore, the ASLB's assertion that if it assumes the survey has predictive value "it does not suggest a massive (footnote continued) i 1 I
~_ _ , _ _ ,
I l
care personnel, Appellants' witness, the Commissioner of Health Services l for Suffolk County, provided the only direct factual evidence concerning 1
the likely response of hospital and nursing home staffs to a Shoreham I
emergency. See Harris, ff. Tr. 1218, at 15; Tr. 1250-53, 1268-69 '
(Harris) (results of survey of hospital and nursing home administrators).
, The ASLB, however, chose to ignore the testimony by this expert with J
j hands-on experience, as well as evidence from TMI concerning the behavior of health professionals. 8 Instead, in Contention 25.E the ASLB t addressed only the issue of ambulance drivers, and found in favor of LILCO. See PID, 21 NRC at 678.
i j In light of the ASLB's refusal to admit c1carly relevant and probative testimony, its refusal to credit the factual and opinion i
testimony submitted by Appellants, and its wholly speculative conclusion, the ASLB's ruling on Contention 25 cannct be sustained. The ASLB never 1
(footnote continued from previous page) .
I
'j defection of drivers because only 3 percent said they would immediately leave the evacuation zone" (PID, 21 NRC at 676), is a gross
! mischaracterization of the evidence. In fact, what the survey
. demonstrated was that only 24 percent of the surveyed bus drivers i
responded that they would report to work. Sixty-nine percent would first s look after the health and safety of their families and thus would not be i
! available promptly to perform their driving responsibilities. Cole, ff. i Tr. 1216, at 7-8.
i 78 i Both the ASLB and LILCO acknowledged that role conflict was reported to have occurred during TMI with respect to physicians, nurses, and other hospital workers, clearly in the category of " trained" emergency workers.
i Even though the TMI evidence thus contradicts the LILCO " theory," and i
health care personnel were addressed in Contention 25.E, the ASLB apparently gave no weight to the events of THI. See P1D, 21 NRC at 673; j Erikson and Johnson, ff. Tr. 1455, at 20-23. The ASLB's apparent reliance upon a graduate student's telephone conversations several years '
after TMI rather than statements in the Kemeny Report is clearly without l basis. See PID, 21 NRC at 673; Tr. 1057-66, 1183-84 (Mileti); Cordaro et al., ff. Tr. 831, at 73-76.
i 1
- - - - - m_. . , , _ - . . . - _ _ . - - - . , - _ _ _ _ _ _ - . _ . _ ._ , _ _ _ _ _ _ . . , . . _ . _ . , . , _ _ _ . - _ , . . . . . _ _ _ _ _ - , , , , , . _ _ . ~ _ ~ _ , . _ _ _ _
. - . - - . _ _ = _ _ . . - - - - . - - , - . - -. - _ _ - - - - - . - - - , - . - . . - _ _ ..
i I
found compliance with Sections 50.47(b)(1) or (b)(3), and never made the necessary reasonable assurance finding required by Section 50.47(a)(1).
On the evidence before it, the ASLB had no basis to make such findings;79 accordingly, its ruling for LILCO must be reversed.
E. Sheltering (Contention 61)
The ASLB committed error by never addressing the merits of Contention 61. The ASLB basically agreed with Appellants' evidence, finding that in many circumstances the alleged dose savings from sheltering would be "quite small" and that sheltering could result in doses greater than the EPA PAGs. PID, 21 NRC at 774. In addition, Appellants' evidence that many Shoreham accidents could result in doses causing adverse health effects - even if a sheltering recommendation ,
were followed -- was uncontroverted. Finlayson et al. , f f. Tr. 12,320.
The Board nonetheless found Contentions 61. A, G,11, and I to be without merit because "in most cases a sheltering recommendatior is a last resort to be taken when no other action will result in a smaller dose." PID, 21 NRC at 774.
The ASLB thus never confronted the key issue in Contention 61:
whether sheltering, as proposed by LILCO, would be an adequate protective measure. Section 50.47(a)(1) requires reasonable assurance that protective measures which are adequate can and will be implemented. The ASLB was required to go beyond the obvious -- that sheltering will reduce The ASLB's citation of the Ginna accident is inapposite. PID, 21 NRC at 673-74. The utility workers who " remained at their jobs" at Ginna were not assigned of fsite emergency response roles as they are under ths LILCO Plan. Tr. 1123-24 (Weismantle).
b doses beyond those that would be received if shelter were not taken (although in many cases even the reduction is concededly "quite small" or non-existent). PID, 21 NRC at 773-74. The ASLB had to determine whether the protective action of sheltering, as implemented under the Plan, would provide a level of protection of the public health that was judged to be adequate. It is clear that in order to judge the adequacy of protection, it is necessary to examine what is accomplished by the protective action in question in terms of the health of those affected. The ASLB simply refused to address the issue. The uncontroverted evidence demonstrated that in the event of a severe accident at Shoreham, the proposed protective action of sheltering, even assuming it were implemented, would not provide adequate protection because substantial numbers of people could still receive doses that would cause seriously adverse health effects. Finlayson et al., ff. Tr. 12,320.80 The ASLB was required to rule for Appellants and its failure to do so requires reversal.
80 This uncontroverted fact takes on added significance in light of the evidence on Contentions 15 and 23, since the substantial numbers of people who would not obey a LILCO recommendation to shelter would receive no shielding and therefore even larger doses.
81 A decision for Appellants would not be contrary to NRC case law. See Southern Calif. Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), CLI-83-10, 17 NRC 528 (1983); Cincinnati Gas & Elec. Co. (Zimmer Nuclear Power Station, Unit 1), ALAB-727,17 NRC 760, 770, (1983);
Philadelphia Elec. Co. (Limerick Generating Station, Units 1 and 2),
LBP-84-31, 20 NRC 446 (1984); Southern Calif. Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), LBP-82-39, 15 NRC 1163, 1188, 1200 (1982). Those cases stand for the proposition that an accident can result in adverse radiation exposures, that the goal.cf emergency planning is maximum dose savings, and that an emergincy plan is not viewed as a guarantee that doses above PAG levels will never be experienced. However, a Licensing Board cannot merely accept as adequate .
a proposed protective action such as sheltering without reaching a l (footnoto continued)
I l
l F. Evacuation (Contentions 65, 23.D, 23.H. 66, 67.C, 72.A, and 73.B.4)
The ASLB committed repeated error in its consideration of the evacuation contentions. Instead of assessing whether the proposed action of evacuation "can and will" be implemented so as to provide adequate protection, the ASLB excluded key evidence, disregarded other evidence, and so fragmented its analysis that it lost sight of the need to assess whether a LILCO-controlled evacuation could work in the timely manner necessary to provide adequate protection to the public. The evidence shows that LILCO could not succeed in implementing a timely evacuation.
- 1. The ASLB Erred in Excluding Key Evidence l The premise of the evacuation contentions is that use of unreliable j time estimates may lead to inappropriate protective action recommen-I i dations, and accordingly, that evacuation as proposed in the LILCO Plan I could not and would not be implemented in a manner that would provide adequate protection to the public. The contentions admitted by the ASLB I
for litigation allege that use of LILCO's evacuation time estimates and its proposed evacuation plan would result in health-threatening radiation doses to the public.82 Appellants submitted testimony which demonstrated i
(footnote continued from previous page) judgment whether it will be adequate for most or many of those persons who might be asked to shelter. In this case, sheltering would be of essentially zero benefit to all persons sheltering in wood frame houses with no basements and to those who evacuate in the face of a sheltering advisory, and of acknowledged "quite small" benefit in many other circumstances. The ASLB had no choice, therefore, but to rule that for persons in wood frame houses, and in "many circumstances," sheltering as proposed by LILCO is g an adequate protective action.
82 See, e g , Contention 65 ("LILCO's evacuation time estimates are so underestimated that under the LILCO Plan an evacuation may be ordered (footnote continued)
l i
t i
the likely radiation exposure and health consequences to Shoreham evacuees who attempted to evacuate following a LILCO time estimate-based j recommendation.83 The ASLB refused to consider Appellants' evidence, t
ruling it " irrelevant to Contentions 65, 23.D and 23.H," and even if I true, "of no probative value in deciding the contentions." ' The ASLB's I i order was clearly in error. The proffered testimony was directly relevant to the contentions admitted for litigation.
]
Moreover, as a result of its error, the ASLB considered the l ,
J evacuation issues in an unreal vacuum -- as if an evacuation of the :
)
- Shoreham EPZ were simply a mechanical exercise, the length of which has 1
no practical significance. That is decidedly not the case. An .
l evacuation in a radiological emergency is an event involving real people and real consequences; in deciding whether LILCO's proposed evacuation l
i -
(footnote contitued from previous page) i which realistically cannot b3 completed prior to release and dispersion
. of fission products . . . resulting in unacceptable health-threatening j exposure to evacuees."); Contention 23.D (" congestion caused by voluntary l evacuation will cause adverse health consequences because evacuees from
] beyond the 10-mile EPZ will impede the evacuation of those within the ;
{ . . . EPZ . . . resulting in evacuees' receiving health-threatening radiation doses"); Contention 23.H (" voluntary evacuees from the East End
{ . . . may . . . receive health-threatening radiation doses due to lack of EPZ perimeter controls").
]
2 83
- 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.
J Order Granting Motions to Strike the Testimony of Fred C. Finlayson, j Gregory C. Minor and Edward P. Radford, Jan. 11, 1984.
i 85
! The ASLB's error is discussed in full in the Suffolk County Response l to LILCO and NRC Staff Motions to Strike the Testimony of Fred C.
t Finlayson, Gregory C. Minor and Edward P. Radford on Behalf of Suffolk '
County Regarding Contentions 65, 23.D and 23.H, Dec. 20, 1983.
f l
l L i .
l T
u :
I was an " adequate" protective action, and in ruling on the time estimate contentions, the ASLB was required to consider the health consequences of l an attempted implementation of LILCO's Plan.
The ASLB prevented Appellants from presenting evidence on the one f
issue central to any reasoned consideration of the adequacy of an evacuation plan. Its ruling excluding the County's testimony must be reversed.
- 2. The ASLB Erred in Rejecting Evidence on the Ground That It Was " Qualitative" Rather Than " Quantitative" Appellants presented more than a dozen witnesses, who were experts in fields pertinent to the development of accurate evacuation time estimates. 6 In addition, Appellants submitted quantitative evidence supporting the evacuation contentions, including evacuation time estimates v'ilch considered the evacuation shadow phenomenon, analyses of the number of accidents and other obstructions likely to occur during the course of an evacuation, and analyses of the number and location of people likely to evacuate in the event of a Shoreham emergency. See Polk, ff. Tr. 2909, at 5; Zeigler and Johnson, ff. Tr. 2789, at 17-23.
Nevertheless, on evacuation issues a recurrent theme was the ASLB's rejection of Appellants' evidence on grounds that it was " qualitative" 86 These witnesses included five officers of the Suffolk County Police Department ("SCPD") with extensive knowledge of traffic management and the road network existing in and around the EPZ (Tr. 2253 et seg. ; 2900 et seq.); a traffic engineer (Tr. 2899 et seg.); an expert in mathe-matical modeling (Tr. 2899 et seg.); an environmental psychologist (Tr.
2253 et seg.); two geographers specializing in human re.=ponse to technological hazards (Tr. 2786 et seg.); and four representatives of the New York State Department of Transportation (Tr. 3691 et seq.).
i 4
l l
rather than quantitative, and the adoption of LILCO's evidence because it was quantitative. The ASLB's distinction between qualitative and quantitative evidence as a basis for rejecting or accepting evidence constitutes error.
The ASLB's improper reliance on the " qualitative quantitative" distinction is evident in many parts of the ASLB's opinion. For instance, Appellants' witness Dr. Pigozzi, a social scientist and expert in mathematical modeling, explained that to be accurate and reliable, evacuation time estimates must be based on realistic assumptions and l complete input data. Pigozzi (Direct), ff. Tr. 2909, at 8 et seg. He explained how and why many of the assumptions about human behavior and decision-making underlying KLD's model were seriously flawed. He also identified the factors which must be considered to make input data complete, and he identified specific instances where KLD's input data were incomplete or based on speculation. Id. Dr. Pigozzi concluded that flaws in KLD's model not only resulted in time estimates which were far
]
too low, but also cast doubt on the validity of KLD's " sensitivity I
analyses" heavily relied upon to counter Appellants' evidence. Pigozzi (Direct), ff. Tr. 2909, at 36-37, 46-47; Pigozzi (Supp.), ff. Tr. 2909.
The ASLB concluded that Dr. Pigozzi's testimony was "of little assistance to the Bosrd" because his criticisms of KLD's model did not quantify the magnitude of the unreliability of LILCO's time estimates, a PID, 21 NRC at 806. The ASLB complained that it "was not aided in the 87
, By " qualitative" evidence the ASLB appeared to mean testimony based on expert opinion rather than on specific studies or analyses producing quantified results.
- 1 i
l assessment of LILCO's quantitative estimates by repeated qualitative '
assertions that each factor will lengthen evacuation times by some unspecified amount." Id.
i The ASLB's preoccupation with quantified evidence also was apparent j in its comparison of the SCPD witnesses' testimony with LILCO'a evidence: ;
[T]he Board concludes that LILCO has used the more
, powerful analytical tools. . . . The Board agrees I with the police that late mobilization, blocked
{ roads, and congested intersections will indeed delay individual progress relative to the normal traffic
, flow that constitutes the bulk of their experience, j or in fact relative to other evacuees who do not have i such troubles. The mathematical analysis with which I
{ they are not expert, however, is difforent; it does
] not focus on the individual. Its simple imperative .
- is that system capacity not go unused. t PID, 21 NRC at 807.88 The ASLB's fixation on sterile mathematical
. i j analysis resulted in its arbitrary and improper refusal to consider the J
impact of practical, real-world conditions on the roadways as explained by those with first hand know edge of those conditions.09 The ASLB consistently appeared to accept LILCO's evidence simply i
because it was " quantitative." In effect, it applied an evidentiary I i,
88 The SCPD witnesses also testified that the assumptions in LILCO's model were wrong, particularly those concerning driver behavior, routo
, deviation, and LILCO's proposed traffic control schema. Roberts et al.,
I ff. Tr. 2260, at 39-47. The SCPD witnesses relied upon their extensivo,
, tirsthand experience in traffic management and their intimata knowledge
! of the roads in Suffolk County. Ilowever, the ASLB dismissed the j significance of this testimony -- albolt after paying lip service to the .
SCPD witnesses' experience -- by characterizing the SCPD witnesses' testimony as " subjective conclusions." PID, 21 NRC at 806.
~
i 89 >
The ASLB also rejected Appellants' ovidenen on the of fect of driver ;
stress on evacuation times, because "[t]he County has not estimated the ;
i frequency of stressed drivers with diminished skills." PID, 21 NRC at i
?
800. Sen also, n.g., id. at 794 ("We rn3uirn quantitativa assistance, which neither the County nor the State has supplied") (emphasis added).
2 ,
4 y o
i 1 e s ,
4
)
standarti under which the degree of quantification determined the i reliability of evidence.90 But, the contral issue with respect to time t L
]
{ estimates is their accuracy and reliability; otherwise, they are usoless 1
)j to decisionmakers. SS PID, 21 NRC at 782. Appollants' testimony showed i
- that the assumptions underlying LIILO's model, the model itnolf, and i
KLD's sensitivity analysen were flawod in important respects, making tho l
{
l
- quantitative resulta of the Ll!IO analyses -- the timo estimaten --
1 inaccurate and unreliable. The fact that some of Appellants' evidenco l J -< !
rested on expert opinions and may not have been as "quantitativn" as the ,
il l l ASLB might have liked, does not make it non probativo, unreliable, !
1 l irrelevant, or wrong. Nor does the fact that Lli40's evidence included i
) more numorical values automatically makn it correct, relevant, rollable I j
4 I 4 or entitled to more weight. !
I i i The burden of proof rested with LI!LO; Appollantr' evicence !
! demonstrated that Ll!IO's timo estimaton were not ar.curatn. The ASLB'n i j! nhif t of the burden to Appollants, by requiring them not only to l l r demonstrate that LI!E0's time estimatan worn unrollabic, but also to 1
f I
i 1
l l
90 l The most glaring exampin was its reliance on "ncnnitivity analymon" l by KLD which, in the ASLB's opinion " quantified" thn scopo of any I uncertainty in LIII0's timo natimaton. Pit), 21 NRC at 792 93, 796, 803-
} 04, 806-08. For instance, on thn insuc of the of fect of route deviation ,
i on evacuation timo estimates, tho ASLB accepted a "quantitativn" i
)
annsitivity analysin by KLD purporting to demonstratn that thn offcct of such deviation was minimal. PID, 21 NRC at 792-93. At the namn timn, it i I ignored Appellants' evidence that tho LilIO analynin was unrnliabin !
becauan it was baned on faulty annumptions. San Pigozzi (Supp.), ff. Tr. I 2909, at 10 14.
4
= 69 = l i
i I
i i
i i .
> 1 1
( :
l !'
I quantify the magnitudo of such unrollability ( m PID, 21 NRC at 793-94),
was without legal justification and constitutes error.9I f I
- 3. The ASLB Erred in Ignoring Relevant and r probative Evidence on Routo Deviation I l
The LILCO Plan assigns each EPZ household specific evacuation routes I and destinations which are invariant under all evacuation scenarios and i
j conditions. Herr, ff. Tr. 2909, at 19-21; Tr. 2356 (Lieberman). ;
J i Contention 65.C.4 alleges that if evacuees deviated from LIII0's i prescribed routes, evacuation times would increase substantially.
Appellants' evidence demonstrated that large numbers of people could be expected to deviate from LILCO's prescribed routes.'
The ASLB rejected Contention 65.C.4 based largely on a LI!CO l i
"mensitivity analysis" ("KLD TM-140") which purported to demonstrate that ;
j deviation from prescribed routes would result in only minimal changos in avacuation times. PID, 21 NRC at 792; son Cordaro et al., ff. Tr. 2337,
{
9I The ASLB also erred when it rofused to admit evidence prepared by New
- York State's experts demonstrating that Lit.CO's model used a simulated roadway network that was not sufficiently detailed to represent properly ,
the roadway network within the EPZ. Tr. 3757 3769, 3770 73, 3775-76. ;
The exclusion of this important evidence, including a map of the roadway !
l network as it should have been modeled, and a list of the roads excluded i from the network, was without basis, and clearly improper.
j 92 Such deviation must be expected for several reasons. First, evacunes I' l would likely have their own perceptions of the most expeditious
, evacuation routes, which may dif fer from LILCO's routes. If they par- !
- ceived LILCO's routes to pose greater risk, substantial numbers would i j take alternative routes. Pigozzi (Direct), f f. Tr. 2909, at 20 22; llarr, !
i ff. 2909, at 20, 23-24; Saegnrt, ff. Tr. 2259, at 3, 11; Tr. 3365 67 (Roberts). Second, evacuees may wish to travel to a destination that J could not be easily reachnd by the prescribed route. Ilcrr, ff. Tr. 2909,
~
5
) at 23. Finally, people experiencing high levels of stress, as would occur in a radiological amorgency, would likoly ignorn prescribed routing information. Sangert, ff. Tr. 2259, at 5 6, 10.
1 70 - !
+
l-l j !
I I
at 66-73, Att. 12. In so ruling, the ASLB ignored Appellants' expert testimony which demonstrated that: (1) KLD TM-140 is misleading because it failed to include a realistic range of options for evacuees taking routes other than those prescribed by L1LC0;93 (2) KLD TM-140 is flawed because it erroneously assumed that drivers would elect to deviate from prescribed routes only when confronted with actual traffic congestion; and (3) these flaws render KLD TM-140 inaccurate as a measure of the true effects of route deviation.'
The ASLB's failure to consider Appellants' evidence on KLD TM-140 was clearly erroneous. Fundamental due process requires that an administrative agency make a reasoned analysis based on adequate findings which are supported by substantial evidence in the record. An adjudicatory panel cannot reject evidence for no reason; an explanation of why probative evidence has been rejected is required. See Cotter v.
Ilarris, 642 F.2d 700, 706, 707 (3d Cir. 19P1). In this case, however, the ASLB dismissed without explanation Appellants' evidence, choosing instead to treat KLD TM-140 as if its reliability were uncontested. 6 93 The KLD study limited evacueos to only one or two alternative destinations 1 in reality, there were many more viable destinations available which KLD did not model. Pigozzi (Supp.), ff. Tr. 2909, at 10-14, 9'
KLD thus failed to account for evacuees' electing alternative routes in anticipation of traf fic blockage, based on their perceptions and knowledge of the traffic network. Pigozzi (Supp.), ff. Tr. 2909, at 12-14.
9 Pigozzi (Supp.), ff. Tr. 2909, at 14.
96 The ASLB's failure to consider Appellants' critique of KLD TM 140 was plainly prejudicial, since the ASLD based its rejection of Contention (footnote continued)
- 71 =
4 i
I i i i 4. The ASLB Erred in Rejecting Appellants' l Evacuation Time Estimates 4
l Contention 23.D concerned the of fact of the shadow phenomenon on I LILCO's evacuation time estimate . The County's consultant, PRC Voorhees, Inc.,98 developed evacuation time estimates which considered ,
i the effect of the evacuation shadow. Contrary to the weight of the ,
I i
l evidence, however, the ASLB rejected the County's timo estimates as I i
t
! invalid, and instead adopted the results of a KLD study. The ASLB's l
{ o
! unjustified rejection of County's estimates constitutes error. h j l l
i l
I (footnote continued from previous page) <
l 65.C.4 in large part on KLD TM-140. Dr. Pigozzi's testimony, however, [
j discredited that study. If the ASLB had considered the testimony, it 3 would have been compelled to conclude that KLD Ttt-140 was not a reliable l i basis for its decision on Contention 65.C.4. Further, the prejudicial I 1 impact of the ASLB's error is compounded by the fact that KLD Tit-140 was !
j one of the " sensitivity analyses" which the ASLB relied upon to concludo j that LILCO had adequately quantified the uncertainty inherent in its timo i estimates -- the basis for the ASLB's rejection of much of Appellants' j allegedly qualitative evidence. If the ASLB had considered Dr. Pigozzi's ,'
l testimony, however, it could not have relied on KLD Ttt-140 to concluda that LILCO had reliably quantified the uncertainty in its time estimates.
l See Pigozzi (Direct), ff. Tr. 2909, at 21-22; Pigozzi (Supp.), ff. Tr.
- 2909, at 10-11; Herr, ff. Tr. 2909, at 27-28. i 97 Research on Long Island has demonstrated that in a Shoreham emer-
) gency, as many as 432,000 families, or half the Lon,; Island population, j i would attempt to evacuato, and a significant number of such f amilies <
j would come from cast of the EPZ. Cole, ff. Tr. 2792, at 14. The I
) ovacuation shadow phenomenon is significant because the large number of
- additional vehicles seeking to evacuate would place added demand on the limited roadway system on Long Island, thus increasing evacuation times.
Polk, ff. Tr. 2909, at 3-4. The longer peopin remain in queues within the EPZ, the greater their risk of exposure to radiation. M.
i
" PRC is noted in the field of evacuation time estimates. The Catawba l Board recently approved time estimates for that facility based on PRC l Voorhees' EVACPLAN model. See Duka Power Co. , 20 NRC 933 at 992-93,
! 1000. PRC's analyses for Duke Power included tima estimates for tha l evacuation shadow phenomenon. M.
i i
l r
- i l
PRC developed evacuation time estimates using empirical data from studies of the Long Island population. The PRC analysis found that the effect of the evacuation shadow would be substantial, particularly on !
evacuation from cast of the plant. For instance, long queues should bo ;
expected on the Long Island Expressway, the Sunrise liighway and Routes 5A, 347 and 25, among others. Thus, the evacuation shadow would result in thousands of cars being virtually immobilized along these routes for
, l
! many hours. Polk, ff. Tr. 2909, at 4-6. The PRC analysis concluded that ,
during the summer months, under normal weather conditions and with no !
l
- breakdowns or other impediments, evacuation of the EPZ would take i
l approximately 17 hours1.967593e-4 days <br />0.00472 hours <br />2.810847e-5 weeks <br />6.4685e-6 months <br />. During the rest of the year, evacuation would i
j take approximately 11 hours1.273148e-4 days <br />0.00306 hours <br />1.818783e-5 weeks <br />4.1855e-6 months <br />. These estimates would increase in case of l
l adverse weather. Id. at 5; SC Exa. 6, 7.
1
! The ASLB rejected the PRC time estimates because the PRC model ass tmed the evacuation of large numbers from carat of the EPZ; the ASLB 7
dismissed the estimates as derived from "nxtreme assumptions about human behavior." PID, 21 NRC at 804." The ASLB also faulted the PRC modeling l.
for inclusion of the Sunrise !!!ghway in the evacuation network, stating:
f "This would cause a gross distortion of evacuation time estimates which l
! could not adequately ensure protection of the health and safety of
" There was nothing " extreme" about the assumptions in the PRC study. !
- The data gathered at TMI and on Long Island demonstrate that in a l radiological emergency at Shoreham, hundreds of thousands of families j would likely attempt to evacuate even if not advised to do so. Many of t these families would come from the East End of Long Island. These data l (which, in fact, were supported by LILCO's own evidence, Cole, ff. Tr.
i 2792, at 20-23) were used as input in running the PRC model. Including i l those data was not only appropriate, but absolutely essential to t j obtaining accurate results, i '
! 73 -
4 !
i l
i j
I _ - _ _ _ - _ - - _ - _ _ _ _ - - - - - - - - - - _ _ - _ - _
persons within the EPZ." Id. at 803. The ASLB offered absolutely no
! reason why consideration of traffic along the Sunrise liighway would constitute a " gross distortion."
q In fact, the Sunrise liighway forms the southern boundary of the EPZ I
for eight miles and would be a major route for thousends of persons who
- evacuate from both forks of the East End, as well as for many people evacuating from inside the EPZ. Polk, ff. Tr. 2909, at 9. PRC's j analysis indicated that these evacuees would be caught in severe i
i j congestion along the Sunrise liighway. Since such evacueos could be 1
affected by any Shoreham accident severo enough to warrant an evacuation J of the entire EPZ, their presence on the edge of the EPZ must be taken f
into account.100 In the absence of time estimates which take into i
account the severo congestion which would occur along the Sunrise liighway, decisionmakers would be denied realistic information about the population at r*sk and the time required to move persons from that area. ,
The ASLB offered no reasonable explanation for its refusal to consider the Sunrise liighway in the evacuation network. Failure to
)
include the travel of East Enders along the Sunrise liighway creates a ,
! gross underestimation of evacuation times and a gross distortion in the 4
purported " adequacy" of evacuation as a protective action. There is no ,
i justification for differentiating between evacuees originating from within the EPZ and those originating from outside the EPZ who thereaf ter i
j come into contact with the EPZ. Both groups must be protected and, to do !
100 As explained in Section F.1, the ASLB erroneously excluded from consideration the evidence which demonstrated that ovacuees caught in j Sunrise liighway congestion would face health-threatening radiation dosos. 1 i
i i
i
so, decisionmakers must have time estimates which take the travel of both groups into account. In its PID, however, the ASLB simply ignored the health and safety of people along the EPZ boundary -- especially those from the East End.
Time estimates and the models from which they are derived must be premised upon assumptions based in fact and supported by data. Those presented by Appellants were. In rejecting Appellants' estimates, the ASLB turned a blind eye to the conditions which would actually prevail during a Shoreham emergency and violated the standard of " accuracy" it professed to uphold. Its ruling should be reversed.
- 5. The ASLB Erred in Its Consideration of Certain Experts' Testimony A reasoned consideration of the traf fic/ evacuation issues required not merely evaluating computer models and sensitivity analyses, but also practical knowledge about conditions on Long Island and the mechanics of actual traffic management. The ASLB committed repeated error, however, in failing to give appropriate weight to testimony of SCPD and New York State witnesses. It was undisputed that these witnesses have extensive expertise in traffic management and the practical realities of vehicular traffic on Long Island; indeed, on the evacuation issues, no other witness had even remotely comparable experience or expertise.
The SCPD witnesses testified to numerous defects in LILCO's proposed traffic control plan.101 But the ASLB essentially ignored their views 01 E g , Tr. 2284-85 (Michel) (experience shows that civilians attempting to direct traffic results in confusion and arguments); Roberts et al., ff. Tr. 2260, at 17, 19-20, Att. 3 (LILCO channelization (footnoto continued) and innumerable SCPD examples of defects in LILCO's traffic control plan, without justification. In sharp contrast, the ASLB accepted the unsupported testimony of the Staff witness, Mr. Urbanik.103 For example, in Contention 65.C.3, Appellants alleged that since LILCO's traffic guides would not operate or alter the traffic signals located throughout the EPZ, the guides' directions to evacuating traffic would often conflict with the signals. This, in turn, would cause driver confusion and increased evacuation times. Appellants presented testimony by the SCPD witnesses that directing traffic under such circumstances almost (footnote continued from previous page) strategies would be difficult, if not impossible, to implement); M. at 21-23 and Att. 4 (many traffic strategies cannot be implemented); g . at 23-24 and Att. 5 (plan to make road one way would create serious prob-lems); M. at 25 (LILCO plan would cause congestion on limited access highway); M . at 46 (motorists stopping to speak with traffic guides would cause delays); M . at 49-51 and Tr. 2297-98 (McGuire, Michel) (in stop-and-go traffic conditions, drivers become more aggressive and disobey traffic laws); Roberts et al., ff. Tr. 2260, at 52-53 and Tr.
3411-12 (Michel) (problems result when one attempts to direct traffic contrary te. signals).
102 For example, the ASLB found that LILCO traffic guides would not actually " screen" motorists. PID, 21 NRC at 793. But the SCPD witnesses explained that what the guides propose to do constitutes the equivalent of screening. Roberts et al., ff. Tr. 2260, at 37, 46, 103 Mr. Urbanik testified that LILCO's evacuation time estimates were reasonable. Urbanik, f f. Tr. 3430, at 16. Although Mr. Urbanik is a civil engineer with no expertise in the field of human behavior (id.,
attached resume), the ASLB relied on his testimony to support its findings pertaining to human behavior in an evacuation. For instance, the ASLB found that Contentions 65.A and B had no merit, relying in part on an assertion by Mr. Urbanik that drivers in queued traffic which is moving slowly are likely to permit other traffic to make turns across their path. PID, 21 NRC at 788; Urbanik, ff. Tr. 3430, at 11. Mr.
Urbanik has no expertise to draw such a sweeping conclusion nor was he able to provide any specific basis for his opinion. See Tr. 3441-43 (Urbanik). Further, in view of the small amount of time he devoted to Shoreham's complex issues, Mr. Urbanik's testimony was entitled to little if any weight. EA , Tr. 3432-34, 3508-31 (Urbanik).
always results in problems even for experienced, uniformed officers, and that such problems would be compounded with LILCO':s inexperienced traffic guides directing traffic. Roberts et al., Tr. 2260, at 52-54.
The ASLB ignored the SCPD witnesses' testimony, however, and dismissed the contention, based in large part on the unsupported assertion by Mr. Urbanik that directions given by traffic guides in conflict with traffic signals would not result in confusion. Urbanik, ff. Tr. 3430, at 12. Unlike the SCPD witnesses, Mr. Urbanik has no expertise directing traffic. See id.; Tr. 3544-45 (Urbanik). Therefore, in contrast to the testimony of the SCPD witnesses, Mr. Urbanik's testimony should have been given little or no weight. The ASLB's reliance upon the Urbanik testimony and its rejection of that of the SCPD witnesses' were clear error.
- 6. Other ASLB Errors on Evacuation Issues We list below some of the ASLB's other significant errors on traffic and evacuation issues:
- a. Contentions 65.D and 66 allege that LILCO's time estimates do not adequately account for road obstacles such as accidents and that LILCO does not have adequate means to remove disabled vehicles from evacuation routes. Appellants' evidence demonstrated that 141 accidents would likely occur in a 10-mile EPZ evacuation, based on data from a well-recognized traffic engineering handbook. Polk, ff. Tr. 2909, at 11.
Without any analysis, the ASLB accepted LILCO's conclusion, purportedly based on the same data, that only three accidents would likely occur, and approved LILCO's time estimates and concluded that LILCO had sufficient
equipment to remove disabled vehicles from the roads. PID, 21 NRC at 796, 798, 811.
- b. On Contention 66.F, Appellants' evidence demonstrated that approximately 277 cars would run out of gas during an evacuation (Polk, ff. Tr. 2909, at 13-16), and that LILCO's plan for distributing fuel to vehicles would worsen, rather than improve, traffic conditions. See, 1
e.g., Tr. 6908-09 (Michel); 6843 (Lieberman). The ASLB dismissed the contention without discussion, noting only that it " discount [ed] as fruitless speculation all of the County's testimony on how fuel allocation plans might fail or snarl traffic." PID, 21 NRC at 816.
- c. In rejecting Contention 65.C.1, the ASLB ignored completely the SCPD testimony that LILCO's traffic guides would add to, rather than reduce, evacuation congestion due to their inexperience and lack of training (Roberts et al. , f f. Tr. 2260, at 40-51) . See PID, 21 NRC at 793. S?milarly, notwithstanding the fact that Appellants provided multiple factual bases to support Contention 65.C.2 (see, e.g., Roberts et al., ff. Tr. 2260, at 49-51; Saegert, ff. Tr. 2259, at 13-16; Tr.
3751-52 (Knighton)), the ASLB rejected that contention on the basis of its finding that there is "no factual basis for hypothesizing [a] high frequency of aggressive behavior" against traffic guides. PID, 21 NRC at 794.
- d. Contention 66.D alleges that the LILCO Plan has no means for dealing with snow impediments, in violation of NUREG-0654, 9 II.J.10.k (requiring identification of means for dealing with impediments to use of evacuation routes, including " seasonal impassability of roads."). The 78 -
i
ASLB acknowledged that LILCO has no agreements which provide for snow removal in a Shoreham emergency (PID, 21 NRC at 813) but nonetheless approved LILCO's " plan" to rely upon governments' purported continuing responsibility to perform normal functions including snow removal, and if snow were not removed, to rely on sheltering as the only protective action. Id. at 813-15. The ASLB failed to apply the applicable law.
LILCO must have a means for providing snow removal. New York State's witnesses made clear that snow removal by the State will end as soon as an evacuation recommendation is made. PID, 21 NRC at 814. The ASLB erred on Contention 66.D.
- e. For the reasons discussed in this Section with respect to Contentions 65, 23, and 66, the ASLB also erred in approving LILCO's evacuation time estimates for evacuation of the transit-dependent population (Contention 67.C) (PID, 21 NRC at 822), special facilities (Contention 72.A) (PID, 21 NRC at 837), and the handicapped living at home (Contention 73.B.4) (PID, 21 NRC at 853).
G. Insufficient Number of Buses for Evacuation of the Non-Automobile Owning Public (Contention 24.F.2)
Contention 24.F.2 alleges that if an emergency occurred when school was in session, LILCO would not have access to enough buses to evacuate persons without automobiles because LILCO's agreements with school bus l
companies are subject to preexisting commitments to school districts.
LILCO conceded, and the ASLB found, that of the 1,236 buses covered by LILCO's agreements, approximately 938 are subject to prior commitments to schools both within and outside the EPZ. Cordaro et al., Tr. 5/30/84 Vol. II, at 57-59; Tr. 9307-08 (Weismantle); PID, 21 NRC at 825. Thus, assuming these 938 buses would not be promptly availabic to LILCO, under its agreements it would have access to only 298 buses. 04 The ASLB found, however, that to evacuate the transit-dependent population the LILCO Plan requires 333 buses. PID, 21 NRC at 827. In addition, contrary to the ASLB's suggestion (see PID, 21 NRC at 826), the FEHA witnesses testified unequivocally that if LILCO's bus agreements contained a prior commitment to schools (as they do), such agreements would be inadequate under NUREG-0654. Tr. 12,796-99 (Keller). The ASLB's conclusion that "LILCO has planned adequately for evacuation of the non-automobile-owning public and has an adequate number of buses committed to it by contract to accomplish such an evacuation" (PID, 21 NRC at 827), is clearly wrong.
The ASLB's finding was premised on the following assumptions which allowed the ASLB not to be " disturbed by the fact that many of the buses under contract have prior commitments to schools": (1) " buses would become available after making their school rounds;" (2) "large numbers of buses under contract exist outside the EPZ that could be released to LILCO's use by school administrators;" and, (3) "the bus companies themselves have additional buses that could be requested on an ad hoc basis." Id. (emphasis added). None of these assumptions, however, is anything more than pure speculation or " wishful thinking" by the ASLB.
104 Moreover, 298 buses actually is an overstatement, since !.n ruling on Contention 22.D, the ASLB ordered LILCO to include several additional schools in the EPZ. See PID, 21 NRC at 703-07, 874. These additional schools would need buses, which would likely reduce the number of buses not subject to prior school claims.
They cannot form the basis for the reasonable assurance finding required by the regulations.105 To base a finding of adequacy on the speculative possibility that b,aes under contract to schools outside the EPZ could be released to LILCO, or that the bus companies may have additional uncommitted buses that could be requested by LILC0, is plainly erroneous, especially when the LILCO Plan itself contains no provisions for such contingencies. See, e.g., Tr. 9297, 9309-10 (Weismantle). 06 In addition to improperly basing its ruling on unfounded assumptions, the ASLB also rejected the testimony of State witness Failla that, based upon official State records on the number of buses in service, if a Shoreham emergency occurred while school was in session the bus companies with which LILCO had contracted could in fact provide only about 10 percent of the 1236 buses contracted for. Failla, ff. Tr. 9948, at 2-3; See PID, 21 NRC at 826-27. The ASLB erred in rejecting the Failla testimony which demonstrated that even LILCO's 298 bus estimate was overstated.107 Under the Zimmer case, this Board must reverse the 105 See Cincinnati Gas & Electric Co., 17 NRC 760 at 773 (representations about ongoing efforts to make " arrangements" for additional buses provides insufficient basis for reasonable assurance finding).
106 Moreover, even assuming additional buses would become available to LILCO after making their school rounds, LILCO's own computer analysis demonstrated that, assuming a rapidly progressing emergency and an evscuation of the entire EPZ, LILCO would be unable to implement its transit-dependent evacuation as set forth in the Plan. See, e.g., Tr.
8092-93, 8117, 8133 (Lieberman); SC Ex. 41.
107 LILCO asserted (see, e.g. , Tr. 9988-94, 10,006-07 (Robinson); LILCO Ex. 49), and the ASLB agreed (PID, 21 NRC at 826-27), that Mr. Failla's analysis was faulty because he purportedly failed to count additional buses owned by companies other than those which have executed agreements (footnote continued)
ASLB's finding on Contention 24.F.2: there is no basis to find reasonable assurance that sufficient buses would be available to implement the LILCO Plan if an emergency were to occur while schools are in session.
H. Mobilization of Emergency Workers (Contention 27)
Contention 27 alleges that LILCO and non-LILCO response personnel would not be promptly available to perform emergency functions because of extended mobilization times. As a result, the implementation of protective actions would be delayed, precluding a Section 50.47(a)(1) reasonable assurance finding. LILCO conceded, and the ASLB found, that in a rapidly progressing accident, emergency workers could not be effectively mobilized to implement the Plan as designed. See, e.g.,
Cordaro et al., ff. Tr. 7043, at 24-26; PID, 21 NRC at 720, 724. While the ASLB found that LILCO had taken " practical and reasonable steps" to minimize the mobilization times for emergency workers, it acknowledged that "there are accidents . . . that would allow inadequate time to go through LILCO's planned mobilization process before evacuation began."
PID, 21 NRC at 724. The ASLB's ultimate conclusion was as follows:
The Board can find no defect in planning . . . .
(footnote continued from previous page) with LILCO, but which have some corporate officers in common. Neither the fact that " buses are commonly owned by a single individual or entity under various corporate names in New York" (PID, 21 NRC at 826), nor LILCO's speculation that buses owned by associated or subsidiary companies "would be available" in the absence of contracts with LILCO (id.), provides any basis for implying additional terms or parties into the specific contracts relied upon by LILCO, or for rejecting the Failla testimony.
/
A specific subset of accident scenarios exists that could progress so rapidly that it would be difficult or impossible to fully execute a prior mobilization.
The consequence of an inability to mobilize for some fast-breaking accidents is to lengthen the time to evacuate the EPZ somewhat. This is accep-table. . . . The Board cannot require what is impossible . . . and we do not do so here.
Id. at 724-25. This ruling is premised on the ASLB's acceptance of LILCO's argument that "an evacuation unaided by LILCO traffic guides could still be accomplished although it would take more time." Id. at l
724. It violates the Appeal Board's recent holding in this case, also on the subject of LILCO's inability to implement the provisions of its I
proposed evacuation plan: "In the context of this case, at least, something more is needed than an aspiration that the public will be able to fend for itself in the event an evacuation is required." Long Island Lighting Co., ALAB-818, slip op. at 42-43 (Oct. 18, 1985). The ASLB ruling must be reversed.
Further, the ASLB had no basis for finding " acceptable" the
" consequence of an inability to mobilize" -- that is, lengthened evacuation times. By ruling that Appellants' evidence concerning the increased doses and adverse health effects resulting from evacuation times longer than those predicted by LILCO was " irrelevant," the ASLB refused to consider any evidence on precisely that " consequence." See Section III.F.1. Further, the ASLB's ruling on Contention 27 is clearly dependent upon its erroneous rulings on Contentions 65, 23.D and 23.H, making those errors even more prejudicial to Appellants, f
l 1
Finally, holding LILCO responsible only for making a " reasonable effort" is not enough. NUREG-0654 recognizes that accidents may proceed at a rapid pace and will require a rapid response. If LILCO is not able to provide such a response, which the ASLB acknowledged was the case for at least one group of possible accident scenarios (PID, 21 NRC at 7"4-25), then there can be no reasonable assurance that adequate protective actions can or will be taken. The record below supports only one conclusion: LILCO has not met the requirements of NUREG-0654, $$ II.E.2, II.F.1.e and II.H.4 (which require means for the effective and timely mobilization of emergency personnel) and LILCO cannot provide reasonable assurance that adequate protective actions can or will be taken in a Shoreham emergency, as required by 10 CFF SS 50.47(a)(1) and 50.47(b)(3). 08 Accordingly, this Board must reverse the ASLB finding in LILCO's favor on Contention 27.
I. Notification of Emergency Personnel and the Public (Contentions 26, 24.T, and 55-59) 10 CFR Part 50, Appendix E establishes two 15-minute notification periods: the first requires LILC0 to have the capability to notify offsite authorities (in this case, LERO) within 15 minutes from the time an emergency is declared; the second requires LILCO to have the capability to complete notification of an emergency to the public within 15 minutes. See 10 CFR Part 50, Appendix E, Section IV.D.3; see also NUREG-0654, 5 II.E.6 and Appendix 3. Contention 26 alleges that LILCO's proposed communications system and procedures for notifying response 108 See Cordaro et al., ff. Tr. 7043, at 24-26; Monteith et al., ff. Tr.
7381, at 8-9; PID, 21 NRC at 724-25.
personnel make LILCO unable to satisfy the first 15-minute requirement and, as a result, there is no assurance that the protective actions set forth in the Plan could or would be implemented. Contentions 24.T and 55-59 contest the adequacy of LILCO's proposals for notifying the public of a Shoreham emergency within the second 15-minute period. The evidence presented on these contentions precludes the " reasonable assurance" finding required by Section 50.47(a). Accordingly, this Board should reverse the ASLB's findings in favor of LILCO on Contentions 26, 24.T, 55, 56, and 59.
- 1. The ASLB Erred in Ignoring Regulatory Requirements Governing Notification of Emergency Workers and the Public The chief dispute on Contention 26 was whether the initial Appendix E 15-minute notification requirement could be met merely by notification of LILCO's Customer Service Office ("CS0") or whether key LERO officials must also be notified. The ASLB concluded that no more than the CSO must be notified, based upon an erroneous interpretation of both the applicable regulatory requirements and Appellants' testimony. PID, 21 NRC at 709.
Contrary to the ASLB's assertion (see, e.g., PID, 21 NRC at 708-09, 711), Appellants did not contend that the regulations require notification of all or a large part of LILCO's emergency personnel within 15 minutes from the time a Shoreham emergency is declared; rather, Appellants contended that at a minimum, the seven key LERO personnel required by the Plan to be notified of a Shoreham emergency -- and not just the CSO -- must be notified within the 15-minute period. Tr. 4662-85 -
63 (Snow). This contention was premised upon the Appendix E requirement t
that a licensee have "the capability to notify responsible state and local government agencies within 15 minutes after declaring an emergency." In this case, state and local officials are not the offsite authorities expected to respond; LERO authorities are. See PID, 21 NRC at 708-09. However, the CSO is merely the vehicle for subsequent notification of the key response personnel actually necessary and responsible for implementing the LILCO Plan. Thus, if the object of the f
15-minute requirement is to assure prompt notification of key emergency responders (as it is), then merely contacting LILCO's CSO would plainly be insufficient. The ASLB's conclusion to the contrary has no rational basis and should be reversed. In addition, since that erroneous ruling was the primary basis for its rulings on all the subparts of Contentica 26 and Contention 55 (see, e.g., PID, 21 NRC at 711, 757-58), this Board should reverse all the ASLB's findings on Contentions 26 and 55.
The ASLB's ruling on Contention 56 also requires reversal because it ignored the governing regulatory standards. Thus, for example, the ASLB was unable to find LILCO's proposed use of route alert drivers to provide backup to the siren system either practical or workable. PID, 21 NRC at 758-59. Nevertheless, it concluded that, since there is no requirement that LILCO's route alert drivers provide notification to the public within 15 minutes, Contention 56 was without merit, even though implementing LILCO's proposal "may indeed take several times that period." Id. This ASLB conclusion ignored NUREG-0654's requirement that public notification must be completed within 45 minutes if there is a
. - - . - . . . . . _ _ - . ~ . , _ _ - . - _ , _ _ - . . - ~ . -
l siren failure. See Tr. 12,695-96 (Kowieski). The ASLB ruling should be i reversed.
- 2. The ASLB Erred in Finding Provisions Adequate for Notification of Boaters l
l The ASLB found Contentions 24.T and 59, which contest LILCO's l
proposals for notification of the public on Long Island Sound by the Coast Guard, to be without merit. There was no dispute that LILCO's i
proposed notification scheme would take far more time than the 15 minutes l permitted by NUREG-0654 or the 45-minute exception for extended water areas allowed under NUREG-0654, Appendix 3. Indeed, the Coast Guard itself estimated that notification of the designated area of Long Island Sound would take at least 90 minutes. Roberts et al., ff. Tr. 5522, at 2-4;'Tr. 5544 (Roberts). Although Appellants' evidence demonstrated that this estimate is overly optimistic (see, e.g., Tr. 5545-46, 5557 (Read)),
} it nonetheless is twice the time permitted under NUREG-0654. Thus, the ,
ASLB clearly erred in finding for LILCO on these contentions. See PID,
! 21 NRC at 761-63.109 J. Communications (Contentions 24.L and 28-34)
Contentions 24.L and 28-34 focus on the adequacy of LILCO's 1
! proposals for communications among response personnel during an f
l 4
109 e i This error cannot be disguised by applauding LILCO's efforts to design a notification system which " layers backup upon backup." PID, 21 '
NRC at 762. The simple fact is that LILCO's Plan provides no assurance that persons likely to be on the waters within the EPZ would receive
. timely notification of a Shoreham emergency as required by the j regulations. [
1 I
emergency. In ruling on each of these contentions, the ASLB ignored the evidence of record and the Section 50.47(a)(1) standard, and instead made findings in favor of LILCO without evidentiary support. For example, the major difference between the parties on Contentions 30 and 31 involved the propriety of LILCO's decision to construct its radio system as an administrative, rather than an operational, system. PID, 21 NRC at 729-30. LILCO asserted that virtually all decisions regarding the implementation of its Plan would be made before any evacuation takes place; for example, according to LILCO, traffic guides would only have to implement LILCO's preset evacuation plan, and therefore no extensive communications between traffic guides would be necessary. Accordingly, LILCO designed its radio system to allow direct communications between field personnel and management, but not among field personnel. See, e.g., Cordaro et al., ff. Tr. 5823, at 15, 22-23.
Appellants' evidence conclusively demonstrated, however, that LILCO's failure to permit workers in the field to communicate with one another (i.e., its failure to adopt an operational communications system)
- renders LILCO's entire emergency response scheme unworkable. Appellants' evidence consisted of testimony by Suf folk County police of ficers who, as 3 5
the ASLB noted, were "well qualified by virtue of training and experience 110 The contentions address communications between LILCO and federal agencies (Contention 28); the Plan's failure to provide for trained
! repair technicians (Contention 29); the inadequacy of the proposed radio communications system (Contentions 30 and 31); the lack of direct comn.unications between emergency personnel in the field and the E0C (likely to result in delaying the implementation of protective actions)
(Contentions 32 and 33); and the inadequacy of communications with hospitals, ambulance personnel and dispatch locations (Contentions 34 and 24.L).
l to criticize the design and operation of an emergency communications system." PID, 21 NRC at 731. These witnesses were unanimous in their opinion that to implement even a " preset" evacuation plan, there must be the capability for communications among personnel in the field. See, e a , Regensburg et al., ff. Tr. 6184, at 31-32. They thus presented overwhelming evidence that LILCO's proposed radio system would be unworkable, and implementation of its proposed evacuation plan impossible, due to the system's design and the number of users per channel, the lack of backup channels, limited broadcast range, and reliance on mobile radios and dedicated telephone lines. See, e.g. , M.
at 13-14, 25-28, 29-30, 32-33, 36-41.
The ASLB found that LILCO's " administrative communications system is a useful provision for emergency response" (PID, 21 NRC at 737), based on its erroneous conclusion that "LILCO's traffic models already yield a near optimum strategy that minimizes overall evacuation times within the EPZ." M. at 736. Since, in the ASLB's view, " traffic guides could not improve overall roadway network evacuation times by making isolated ad hoc decisions about traffic flow," there would be "very little need for frequent communications among guides during an actual evacuation." Id.
at 736-37. Indeed, the ASLB concluded "that a timely evacuation of the EPZ could be accomplished even if there were no communications whatever among traffic guides." M. at 737 (emphasis added)."1 111 Similarly, based on its finding that successful traffic management was not dependent upon direct means of communications among field personnel, the ASLB also rejected Appellants' testimony that the number of users per channel, the lack of backup channels, limited broadcast (footnote continued)
The ASLB's conclusions on Contentions 30 and 31 must be reversed.
First, the conclusions are premised entirely upon the ASLB's findings on Contention 65, which were plainly wrong. See Section III.F above.
Second, they clearly contradict the evidence presented by the only witnesses qualified to testify about the practical realities of implementing traffic controls and emergency response communications.
Third, this Board should not be deceived by the ASLB's assertion that the question below was whether an operational communications system is
" marginally better" than an administrative system for purposes of accomplishing an evacuation of all or part of the EPZ. PID, 21 NRC at 735. Rather, Appellants' evidence demonstrated that LILCO's proposed radio system would not work. See Regensburg et. al., ff. Tr. 6184 at 16, 31; Tr. 6281, 6284-89, 6309 (Snow). The ASLB acknowledged that there was no basis in the record to dispute Appellants' criticisms of LILCO's proposed system and that, in certain aspects, the " broadly versatile" operational system advocated by Appellants is " technically superior" to LILCO's proposed administrative system. PID, 21 NRC at 735-37.
Accordingly, the ASLB's belief that LILCO's proposed system would be "a useful provision" is irrelevant. See id. at 737 (emphasis added). On the evidence before it, the ASLB could not, and did not, find that LILCO's proposed communication system provides reasonable assurance that (footnote continued from previous page) range, and reliance on mobile radios and dedicated telephone lines required a finding of inadequacy. PID, 21 NRC at 737-41. For example, the ASLB concluded that even though inclusion of a backup system would be
" prudent and potentially useful," no backup channels are required because there would not be " serious consequences . . . from the loss of communications with field workers." Id. at 739.
90 -
adequate protective actions could and would be taken in the event of a Shoreham emergency, as required by Section 50.47(a)(1). The ASLB's finding for LILCO on Contentions 30 and 31 must be reversed.
The ASLB's rulings on other communications contentions (i.e.,
Contentions 28, 32-34, and 24.L) suffer from the same defects as those on Contentions 30 and 31. In short, the ASLB ignored the evidence of record and the Section 50.47 standard, and its rulings should be reversed.
K. Training (Contentions 24.S, 39-41, 44, and 98-100)
Contentions 24.S, 39-41, 44, and 98-100 contest the adequacy of LILCO's training program. The evidence presented on these contentions precludes the finding required by Section 50.47(a)(1). Indeed, the ASLB made only tentative contingent " conclusions," which were expressly made
" subject to confirmation" in the future by FEMA, that the Plan can be satisfactorily implemented with the training program submitted and relied 112 For example, with respect to Contention 29, the ASLB ignored clear evidence regarding the consequences of the Plan's failure to provide for trained repair technicians capable of keeping communications equipment operational. See, e A , Regensburg et al., ff. Tr. 6184, at 8-9; Tr.
6300-01 (Snow); Baldwin et al., ff. Tr. 12,174, at 32. Indeed, contrary to the evidence of record (see Tr. 6300-01 (Snow); Cordaro et al., ff.
Tr. 5283, at 11-13; Regensburg et al., ff. Tr. 6184, at 9), the ASLB concluded that LILC0 had " demonstrated that it has the capability for maintenance and repair of radio equipment," and that assurance that LILCO's communications system will function in an emergency is provided by periodic testing and spare radios. PID, 21 NRC at 729.
113 The contentions challenge LILCO's provisions for training non-LILC0 personnel (Contentions 24.S and 98), allege that LILCO's training program cannot compensate for the lack of experience among LILCO's personnel (Contentions 40, 44.E, 44.F, 99 and 100) or provide proper instruction in the use of emergency equipment (Contentions 41 and 44.D), and challenge the adequacy of LILCO's proposal for dealing with attrition (Contention 39).
upon by LILCO. PID, 21 NRC at 756. Clearly, in light of the ASLB's failure to make the finding required by the regulations, its PID cannot be said to find in favor of LILCO on the training contentions.
Furthermore, in purporting to rule on the individual training contentions, each of which dealt with a particular aspect of LILCO's Plan which could not be implemented as a result of deficiencies in the LILCO training program, the ASLB ignored the evidence of record and engaged in more speculation. For example, Contention 98 challenges the adequacy of LILCO's arrangements for training non-LILCO personnel responsible for implementing the LILCO Plan. In a Shoreham emergency, LILCO expects the personnel of schools, hospitals, nursing homes, and other special facilities to implement protective actions for those in their care. See Plan, App. A, at II-19 to 21, IV-169 to 178. Despite this expectation, LILCO has no agreements, and has made no arrangements, to train such personnel. Cosgrove and Fakler, ff. Tr. 8407, at 3. It was uncontroverted that training has not been provided to any school personnel, or the personnel of hospitals, nursing / adult homes, or other special facilities (see Babb et al., ff. Tr. 11,140, at 80), nor is there any basis in the record to find assurance that such personnel would accept training, assuming it were offered by LILCO in the future.
Thus, the ASLB was compelled to find noncompliance with Section 50.47(b)(15) and NUREG-0654, 6 II.O.4, which require radiological s
114 See, e.g.,Section III.A (evidence demonstrated that schools have not engaged in any training of personnel for a Shoreham emergency). The ASLB's " finding" that "LILCO will train key school personnel to know what to do when a protective action is ordered" (PID, 21 NRC at 754) is nothing but speculation.
response training for "those who may be called on to assist in an emergency." See Consolidated Edison Co., 18 NRC 811, 952-53 (1983);
Consumers Power Co., 16 NRC 1096, 1098-1100 (1982). The ASLB's conclusion that "it is sufficient for LILCO to offer the training because there is no requirement for [ schools, hospitals, nursing homes and special facilities] to accept such an offer," PID, 21 NRC at 754, violates the regulations and is contrary to NRC precedent.115 It must be reversed.
L. Ingestion Pathway Protective Actions (Contentions 81 and 24.R)
- 1. The ASLB Erred in Ignoring LILCO's Inability to Impose Ingestion Pathway Protective Actions Contention 81 alleges that the LILCO Plan contains insufficient procedures or other means of implementing necessary protective actions for the ingestion EPZ, as required by 10 CFR SS 50.47(a)(1) and 50.47(c)(2) and NUREG-0654, 9 II.J.11. There was no dispute that the The ASLB adopted LILCO's argument that because schools, hospitals, nursing / adult homes, and other special facilities are not " support organizations," there is no requirement that their personnel be trained with respect to their roles under the LILCO Plan. PID, 21 NRC at 755.
This ruling ignores the facts, and the NRC precedent cited in the text.
See also Pennsylvania Power & Light Co. , 15 NRC 771 at 782. The fact is that under the LILCO Plan, school and special facilities personnel are expected to perform critical tasks that are not within the scope of their normal activities; moreover, they are expected to perform such tasks in a manner consistent with the complex administrative and procedural structure set forth in the Plan. Clearly, without training, there can be no reasonable assurance that they would or could fulfill the roles assigned them by LILCO adequately or in a manner consistent with implementation of the Plan as a whole. See Cosgrove and Fakler, ff. Tr.
8407, at 3; Cosgrove et al. (Direct), ff. Tr. 13,083, at 12; Tr. 8420 (Cosgrove). There is no factual support in the record for the ASLB's speculation to the contrary. Further, as the TMI case makes clear, a Licensing Board is not to rely on ad hoc responses to a radiological emergency; that is no substitute for preparedness. See Metrooolitan Edison Co., 14 NRC at 1640-41.
l Plan describes several proposed protective actions; the issue was whether LILCO demonstrated a capability of assuring implementation of its proposed protective actions.
The ASLB acknowledged that LILCO lacks the ability and authority to impose its proposed protective actions on the public, farmers, producers, processors, distributors or vendors of potentially contaminated foodstuifs or ducks. PID, 21 NRC at 878. Nonetheless, the ASLB ruled in LILCO's favor. by assuming that (1) everyone would voluntarily comply with LILCO's recommendations, and (2) LILCO's offer to purchase potentially contaminated foodstuffs would be as effective a method for protecting the consuming public as state-imposed embargos or interdiction. See PID, 21 NRC at 877-78. The ASLB thus found that LILCO's inability to impose ingestion pathway protective actions was not a " fatal flaw" and that there exists reasonable assurance that the LILCO Plan is workable. Id.
at 878.
This finding was clear error. First, as the ASLB recognized (PID, 21 NRC at 877-78), LILCO does not have the authority to impound, embargo or interdict potentially contaminated foodstuffs, or otherwise to enforce the implementation of actions necessary to protect the public in the ingestion pathway and those who could receive contaminated food from that pathway. See, e.g., Tr. 13,685-87 (Watts, Cordaro). Thus, LILCO's proposal violates NUREG-0654, 5 II.J.11, which requires that the methods for protecting the public from consumption of contaminated foodstuffs shall include procedures "for imposing protection procedures such as impoundment, decontamination, processing, decay, product diversion, and 1
l preservation" (emphasis added). This inability to assure implementation of ingestion pathway protective actions is a critical deficiency in the LILCO Plan. Second, LILCO's proposal to rely upon voluntary compliance with its ingestion pathway advice does not cure its noncompliance with Section II.J.11, which clearly requires authority to impose controls.
Third, LILCO's offer to purchase contaminated foodstuffs also falls short of providing assurance that actions necessary to protect public health would be taken. It is possible that LILCO's offer could prevent some contaminated products from reaching the public; however, the existence of this potential economic incentive, which individual farmers, processors or vendors may or may not find attractive (assuming arguendo they even become aware of it in a timely fashion), does not compensate for the failure to satisfy the NUREG-0654 requirement that there exist procedures for imposing protective actions to protect the consuming public. The ASLB's decision on Contention 81 clearly fails to apply the regulatory standards.
- 2. The ASLB Erred in Approving a Connecticut Plan Never Even Submitted for Review _
Contention 24.R deals with a related ingestion pathway issue --
whether there is reasonable assurance that adequate protective measures can and will be taken in that portion of the ingestion EPZ which lies in Connecticut. At issue is more than just LILCO's failure to obtain an agreement that Connecticut wculd implement the ingestion pathway proposals set forth in the LILCO Plan. Clearly, in light of admitted Contention 81 and Sections 50.47(a)(1), (b)(10) and (c)(2), the ASLB was T -
also required to make findings on the adequacy of any measures which Connecticut might implement.
The ASLB simply ignored the requirements of the NRC's regulations.
There was some evidence (a confusing exchange of letters) that Connecticut would try to do something if an emergency arose. See PID, 21 h1C at 885-87. But, precisely (or even generally) what Connecticut would do, and whether its actions would be consistent with LILCO's Plan or meet the Section 50.47 criteria, were ignored by the ASLB, which stated that it did "not read Contention 24.R as raising issues concerning the adequacy of the State of Connecticut's . . . plan." PID, 21 NRC at 886.
The ASLB concluded that it was sufficient merely that Connecticut
" commits" to take unspecified actions.
An " agreement" to do something which is never even identified cannot possibly be the basis for a responsible finding that Connecticut could and would implement adequate pretective measures in a Shoreham emergency.
The ASLB never even saw a Connecticut plan, much less reviewed one for adequacy or consistency with the measures proposed by LILCO. L'nder these circumstances, the ASLB could not possibly find that the Section 50.47(b) 116 The Board apparently had less concern about the adequacy of Connecticut's hoped-for actions because " Connecticut lies on the outer reaches of the Shoreham 50-mile ingestion pathway zone . . . ." PID, 21 NRC at 887. Clearly, this is no justification for ignoring the regulations; moreover, a look at a map reveals that Connecticut lies only approximately 20 miles from Shoreham. Similarly, the ASLB's personal belief that it would be " incredible" to suppose that Connecticut would do nothing in an emergency and that given the " controversy" over Shoreham, the ASLB would not expect Connecticut to do more than it had done through the letters in terms of " commitment" to respond in an emergency (sm PID, 21 NRC at 887), is completely beside the point. No one said Connecticut would do nothing; the issue is whether it will do anything that can be found to be " adequate." On the existing record, no one knows.
ingestion pathway standards were satisfied for the portion of the EPZ in Connecticut. See Pacific Gas & Electric Co., 11 NRC 227 (1980).
Moreover, the issue is not whether the ASLB thinks Connecticut would "act responsibly." PID, 21 NRC at 887. Rather, the issue is whether there is probative evidence to make the findings required by NRC regulations.
In requesting an operating license, the applicant has the burden of demonstrating compliance with each applicable regulatory requirement.
With respect to the ingestion pathway, L1LCO was obligated to establish reasonable assurance that the protective actions set forth in its Plan would and could be implemented. With respect to the portion of the ingestion EPZ in Connecticut, there was a void in the record that precluded a finding of adequacy. The ASLB must be reversed on Contentions 24.R and 81.
M. Recovery and Reentry (Contention 85)
Contention 85 alleges that LILCO has no plan or procedures for recovery and reentry, as required by 10 CFR $ 50.47(b)(13) and NUREG-0654, 6 II.M. The ASLB concluded that LILCO's " plan to form an expert committee at the time of an accident" satisfies the regulatory require-ments, and found Contention 85 without merit. PID, 21 NRC at 880. The ASLB relied heavily on the fact that recovery and reentry activities would be undertaken after an evacuation had occurred, and concluded that, since the public would be safe from radiation exposure at the time 117 Indeed, in basing its ruling on the assumption that some unknown ad hoc response would be adequate, the ASLB contradicted its own findings on the " realism" defense to the legal authority contentions, which was emphr*ically affirmed by the Appeal Board. See PID, 21 NRC at 909-12; Long Island Lighting Co. , ALAB-818, slip op. at 36-39 (Oct. 18, 1985).
recovery and reentry were considered, no urgent question of public health and safety would arise. Accordingly, in the ASLB's view, there is no basis to require LILCO to preplan for contingencies that could be resolved at the time of an accident. Thus, the ASLB ruled that how to deal with decontamination, radioactive waste disposal, security, adequacy of iood and water supplies, and traffic control, and whether those matters essential to public health and safety could be dealt with adequately or at all, could properly be lef t unresolved until an actual 1
emergency. Id.
The ASLB misconstrued the regulatory requirements in finding that LILCO's proposal to form a committee at the time of an emergency constitutes an acceptable " plan" for recovery and reentry. NUREG-0654, 6 II.M requires LILCO to " develop general plans and procedures for reentry and recovery and describe the means by which decisions to relax protective measures . . . are reached," considering both existing and potential conditions. LILCO's Plan does not include even a general plan for recovery and reentry. It provides only for the creation of a committee which, at the time of an accident, purportedly would plan and implement unspecified actions in unspecified ways. OPIP 3.10.1; see Minor, ff. Tr. 15.384, at 3-4; Cordaro et al. (Direct), ff. Tr. 15,282, at 7. Detailed plans regarding recovery and reentry are not required; however, general plans must at least be developed. 10 CFR S 50.47(b)(13). LILCO's plan to create a plan during the accident does h
not constitute even a " general pla:i" that can be assessed for its adequacy or for compliance with regulatory requirements.II8 The ASLB should have found that LILCO's plan to create a recovery and reentry committee does not constitute a plan at all, and provides no assurance that necessary recovery or reentry actions would or could be implemented after a Shoreham emergency. The ASLB's ruling in LILCO's favor on Contention 85 must therefore be reversed.
IV. CONCLUSION For the foregoing reasons, the ASLB's rulings for LILCO in the April 17, 1985 PID should be reversed.
Respectfully submitted, Martin Bradley Ashare Suffolk ounty Attorne By: N Ed' gene 4R. Kelley
- ]V Chief Deputy County Attorney H. Lee Dennison Building Veterans Memorial Highway Hauppauge, New York 11788 Kirkpatrick & Lockhart 1900 M Street, N.W.
Washingotn, D.C. 20036 Of Counsel Attorneys for Suffolk County 118 For example, the Plan does not address necessary recovery activities to reduce dose rates in contaminated areas, decontamination methods, or the criteria to determine which methods are necessary or appropriate.
See Minor, ff. Tr. 15,384, at 4; Tr. 15,311-14 (Daverio).
i PESian G. Palomino'
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Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capital Building Albany, New York 12224 Robert Abrams Attorney General of the State of New York TVo World Trade Center New York, New York 10047 Attorneys for Governor Mario M. Cuomo and the State of New York
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/ StqpNen B. Latham TVomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton October 23, 1985
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9 UNITED STATES OF AMERICA v o bciapW NUCLEAR REGULATORY COMMISSION 1 S Qbgp ip Before the Atomic Safety and Licensing' App hl Boarg ,
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In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
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(Shoreham Nuclear Power Station, )
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Certificate of Service I hereby certify that copies of SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON BRIEF ON APPEAL OF LICENSING BOARD APRIL 17, 1985 PARTIAL INITIAL DECISION ON EMERGENCY PLANNING have been served on the following this 23rd day of October, 1985, by U.S. mail, first class.
Alan S. Rosenthal, Chairman Stuart Diamond Atomic Safety and Licensing Business / Financial Appeal Board NEW YORK TIMES U.S. Nuclear Regulatory Commission 229 W. 43rd Street Washington, D.C. 20555 New York, New York- 10036 Mr. Howard A. Wilber Joel Blau, Esq.
Atomic Safety and Licensing New York Public Service Comm.
Appeal Board The Governor Nelson A.
U.S. Nuclear Regulatory Commission Rockefeller Building Washington, D.C. 20555 Empire State Plaza Albany,'New York 12223 Mr. Gary J. Edles Stewart M. Glass, Esq.
Atomic Safety and Licensing Regional Counsel Appeal Board Federal Emergency Management U.S. Nuclear Regulatory Commission Agency Washington, D.C. 20555 26 Federal Plaza New York, New York 10278 l
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's Morton B. Margulies, Chairman Anthony F. Earley, Esq.
Atomic Safety and Licensing Board General Counsel U.S. Nuclear Regulatory Commission Long Island Lighting Company Washington, D.C. 20555 250 Old Country Road Mineola, New York 11501 Dr. Jerry R. Kline W. Taylor Reveley III, Esq.
Atomic Safety and Licensing Board Hunton & Williams U.S. Nuclear Regulatory Commission P.O. Box 1535 Washington, D.C. 20555 707 East Main Street Richmond, Virginia 23212 Mr. Frederick J. Shon Mr. Jay Dunkleberger Atomic Safety and Licensing Board New York State Energy Office U.S. Nuclear Regulatory Commission Agency Building 2 Washington, D.C. 20555 Empire State Plaza Albany, New York 12223 Mr. L. F. Britt Stephen B. Latham, Esq.
Long Island Eighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station P.O. Box 398 P.O. Box 628 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C. 20555 Ms. Donna D. Duer Hon. Peter Cohalan Atomic Safety and Licensing Suffolk County Executive Board Panel H. Lee Dennison Building U.S. Nuclear Regulatory Comm. Veterans Memorial Highway Washington, D.C. 20555 Hauppauge, New York 11788 MHB Technical Associates James B. Dougherty 1723 Hamilton Avenue 3045 Porter Street, N.W.
Suite K Washington, D.C. 20008 San Jose, California 95125 Martin Bradley Ashare, Esq. Jonathan D. Feinberg, Esq.
Suffolk Ccunty Attorney Staff Counsel, New York State H. Lee Dennison Building Public Service Commission Veterans Memorial Highway 3 Rockefeller Plaza Hauppauge, New York 11788 Albany, New York 12223 1
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Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Appeal Board U.S. Nuclear Regulatory Comm. U.S. Nuclear Regulatory Comm.
Washington, D.C. 20555 Washington, D.C. 20555 Edwin J. Reis, Esq. Fabian G. Palomino, Esq.
Bernard M. Bordenick, Esq. Special Counsel to the Governor U.S. Nuclear Regulatory Comm. Executive Chamber, Room 229 Washington, D.C. 20555 State Capitol Albany, New York 12224 Spence Perry, Esq. Mary Gundrum, Esq.
Associate General Counsel New York State Department Federal Emergency Management Agency of Law Washington, D.C. 20471 2 World Trade Center, Rm. 4614 New York, New York 10047 Mr. William Rogers Clerk Suffolk County Legislature Suffolk County Legislature Office Building Veterans Memorial Highway Hauppauge, New York 11788 9 . /_
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darla J. Le__t/che KIRKPATRICW & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Date: October 23, 1985 e
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