ML20138J389

Brief in Opposition to Suffolk County & State of Ny 851023 Appeal of ASLB 850417 Partial Initial Decision LBP-85-12 on Emergency Planning.Certificate of Svc Encl

ML20138J389
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/13/1985
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#485-504 LBP-85-12, OL-3, NUDOCS 8512170509
Download: ML20138J389 (114)

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$ LILCO, Dsczmbsr 13, 1985 1*= ,

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USt;!r' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,

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Before the Atomic Safety and Licensing Appeal Board LFr'llyj$g#[gy,fj; G00 uRAncn in the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency - Plan ning (Shoreham Nuclear Power Station, ) Proceeding)

Unit 1) )

LILCO's Brief in Opposition to the Intervenors' Appeal of the ASLB's Partial Initial Decision on Emergency Planning Hunton r, Williams 707 East Main Street P. O. Box 1535 Richmond, Virginia 23212 i

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TABLE- OF CONTENTS

~TABLEOFCONTENTS...................................................... i TA B L E ; O F AU T H O R I T I ES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi A R G U M E N T . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .- . . . . . I

1. INTRODUCTION..................................................... 1

11. PROCEDURAL DECISIONS ' CHALLENGED BY THE INTERVENORS...... 8 A. The ASLB Correctly Excluded Contentions 22,

26. B, and the Strike Contention . . . . . . 4. . . . . . . . . . . . . . . . . . . . . . . . 8

~

1. The ASLB Correctly Excluded Contentions 22. A, .

B, and C on EPZ Size (Special Prehearing Con-ference Order at 8-12 (Aug. -19,1983); Order-Ruling on Objections to Special Prehearing

. Conference Order at 1-4 (Sept. 30,1983);

i ntervenors' ' B rief at 7-12) . .~. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

a. Insofar as the Intervenors Argued for a 20-Mile EPZ, Their Argument is Contrary

7 . to the Regulations and Case Law . . . . . . . . . . . . . . . . . . . . . . . 8

b. The Intervenors Are improperly Urging the NRC to Set the EPZ Size on a Site-Specific 1 g _

Basis..................................................10 c .' Contentions 22.B and C'Were Properly Ex clu ded - a s Repetitiou s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 1

2. The ASLB Correctly Excluded Contention 26.B

'on Dependability of Commercial Telephones *

(Special Prehearing Conference Order at 15-16 (Aug.19,1983); intervenors' Brief at 13 - 1 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

-3. .The ASLB Correctly Excluded the Proposed Contention _on LILCO's L' abor Strike (PID at 888-95; Intervenors' Brief at 15-20) .................... 15 L

a. The Intervenors Have Not Shown Good Cause for Their Untimeliness . . . . . . . . . . . . . . . . . . . . . . . . . . 15

b. The ASLB . Properly Considered the Facts

-in Ruling the Contention Was Specula- ,

tive...................................................18 4

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B. The ASLB Correctly Denied Requests for Discovery Against FEMA (Tr. 12,127-33; intervenors' Brief at 20-23)...................................................... 19 Ill. ISSUES IN THE ASLB'S PARTIAL INITIAL DECISION CHALLENGED B Y T H E I N T E RV E N O R S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 A. Schools (Contentions 24.E, 24. F, 24.M, 61.C, and 68-71) (PID_ at 855-75; intervenors' Brief at 23 - 3 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 21

1. Letters of Agreement with Schools Are Not Req ui red (Con tention 24. E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

2. The ASLB Correctly Found for LILCO on the Remaining School Contentions (24.F, 24.M, 61 . C , : 68 - 71 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 5

a. Existing School Plans Adequately Provide for Sheltering, . Dismissing, and Evacuating Students (Contention 61. C, 69, and 70) . . . . . . . . . . . . . . . . 25

b. Agreements with School Bus Drivers Are Not Required (Contention 24.M) . . . . . . . . . . . . . . . . . . . . 27 B. Special Facilities (Contentions 24.G, 24.J, 24.K, 24.N, 60, 63, and 72) (PID at 775-78, 827-46; Intervenors' Brief at 34-41) .................................... 29

1. Agreements with Special Facilities Are Not Req uired (Contention 24.J ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

2. LlLCO Has Adequately Planned for Protection of the Radiosensitive (Contentions 60 and 63) . . . . . . . . . . . . . . . 30

3. LILCO's Planning for Hospital Patients is Adequate (Contentions 24.G, 24.K, 60, 63, 72 . D , a n d 72 . E ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

4. Letters of Agreement with Relocation Centers for Hospitals Are Not Required (Contentions 4 24.N and 72.C) ............................................ 33

5. LILCO Has Planned Extensively for Sheltering Hospital Patients (Contention 72. D) . . . . . . . . . . . . . . . . . . . . . . . . . 34

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.C. L Credibility and the Evacuation Shadow Phenomenon

. (Contentions 15 and 23) (PID at 655-71, 687-701; intervenors' Brief at 41-54) .................................... 35

11. ' LILCO's Credibility 1with the Public Will Not

, Inhibit. Protective Actions (Contention 15) . . . . . . . . . . . . . . . . . . . ~ 35

- 2. " Shadow Phenomenon" Will Not Impede an Evacuation (Contention 23) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

a. Response to' Various _ Emergencies . indicates that " Shadow Phenomenon" Will Not Pre-vent an Effective Emergency Response at .

S h o re h a m . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 (1) The ASLB Fully Considered the Response to Radiological Accidents a t T M I . a n d - G i n n a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 (2) Evidence from Non-Radiological Emer-gencies Supports the- ASLB's Decision . . . . . . . . . . . . . 42

b. Opinion. Polls Taken in Suffolk County Cannot Be Used to Predict Actual Emergency R e's po n s e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 -

D. Role Conflict.(Contention 25) (PID at 671-79; intervenors' Brief at 54-62) .................................... 45

> 1. . NRC - Precedent Rejects " Role Conflict" A s a P ro b l em . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~ 46

2. The ' Evidence in this Case Shows Role Con flict Not to B e a P roblem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 '

i 3.~ The Intervenors' Lay Opinions Do Not O u tweig h Othe r Eviden ce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 LE. Sheltering (Conten' tion 61) (PID at 770-75; intervenors' Brief at 62-63) .................................... 53 F. Evacuation (Contentions 65, 23.D, 23.H, 66, 67.C, 72. A, and 73.B.4) (PID at 781-827, 835-38, 849-53; Intervenors' Brief at 64-79) .................... 55

. 1. The ASLB Correctly Excluded the Finlayson Testimony on Contentions 23. D, 23. H, a nd 65 . . . . . . . . . . . . . . 56

_ . 2. The ASLB.Did Not Reject the Intervenors' Testi-l- mony Simply Because It Was Qualitative . . . . . . . . . . . . . . . . . . . . . 59 i

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3. The ASLB'Did Not Ignore Relevant and Probative Evidence on Route Deviation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

4. .The ASLB Did Not Err in Rejecting .the in-tervenors' Evacuation Time Estimates . . . . . . . . . . . . . . . . . . . . . . . 66

5. The ASLB Did Not Err in its Consideration of th e S C PD Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

6. The ASLB Did Not Commit Any 'of the Miscel-laneous - Errors Alleged by the Intervenors . . . . . . . . . . . . . . . . . . 70 G. Insufficient Number of Buses for Evacuation of the Non-Automobile Owning Public (Conten-tion 24.F.2) (PlD at 817-27; intervenors' Brief at 79-82)................................................. 73 H. Mobilizatio.n of Emergency Workers 1(Contention

27) (PID at 716-25; intervenors' Brief at 82-84)........................................................... 76

1. Notification of Emergency-Personnel and the Public (Contentions 26, 24.T, and 55-59) (PID at 707-16, 757-63; Intervenors' Brief at 84-87) ............................ 79

1. Initial Notification of Offsite Authorities-is Accomplished by Notifying the CSO . . . . . . . . . . . . . . . . . . . . . . 79

2. Route Alert Drivers Need Not Meet Public Notification Time Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

3. The LILCO Plan Adequately Provides for Notification of Boate rs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 J. Communications (Contentions 24.L and 28-34) (PID at 725-44; intervenors' Brief at 87-91) ......................... 83 K. -Training (Contention 24.S, 39-41, 44, and 98-100)

(PID at 744-56; Intervenors' Brief at 91-93).................... 86 L. Ingestion Pathway Protective Actions (Contentions 81 and 24.R) (PID at 875-78, 885-87; Intervenors' Brief at 93-97)................................................. 89

1. Adequate Protective Measures for the Ingestion Pathway Will Be Taken in an Emergency Despite LI LCO's I nability to " impose" Such Measu res . . . . . . . . . . . . . . . . 89

2. The State of Connecticut Will Protect its Citizens During an Emergency at Shoreham . . . . . . . . . . . . . . . . . 92

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' M. Recovery.and Reentry (Contention 85) (PID at 878-82;. ' !'

' intervenors' Brief at 97-99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 ,

IV. - C O N C L U S I O N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

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-vi-TABLE OF AUTHORITIES Cases Pacific Gas r, Electric Co. v. Statt Energy Resources Conservation and Development Comm'n , 461 U . S . 190 (1983) . . . . . . . . . . . . . . . . . . 23

Power Reactor Development Co. v. Inter-national Union of Electrical Wo r k e rs , 3 67 U . S . 396 ( 1961 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 .

U.S. v. Lambert, 589 F. Supp. 366

( M . D .- F l a . 1984 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Administrative Decisions Commission Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10,17 NRC 528 (1983)' .................... 32,58 Atomic Safety and Licensing

. Appeal Board Cincinnati Gas r, Electric Co'. (Wm. H .

Zimmer -Nuclear Power Station, Unit 1), ALAB-727,17 NRC 760 (1983)...................................................... 58,75 Cleveland Electric illuminating Co.

(Perry Nuclear Power Plant, Units 1 and 2) , ALA B-802, 21 N RC 490 (1985) . . . . . . . . . . . . . . . . . . . . . . 3,81

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-vii-Detroit Edison Co (Enrico Fermi Atomic Power Plant,1 Unit 2), - ALAB-730, 17 N R C 1057 ( 1983 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58,87 Duke Power Co. (Catawba Nuclear Station, Units .1 and -2), ALAB-355, 4 NRC 397.

(1976)...................................................... 3,81

' Houston Lighting r, Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 N RC 542 (1980) . . . . . . . . . . . . . . . . . . . . . 18

'Long-Island Lighting Co. (shoreham Nuclear Power Station, . Unit 1), ALAB-818, 22 NRC ( Oct . 18, 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,76,77 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773, 19 N R C 1333 ( 1984 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Mississippi Power r, Light Co. (G rand Gulf- Nuclear Station, Units 1 a n d 2) , A LA B - 130, 6 A EC 423 (1973 ) . . . . . . . . . . . . . . . . . . . . . . . 18 Pacific Gas ~ r, Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

A LA B -781, 20 N RC 819 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Public S~ervice Co. of ~ lndiana (Marble H.ill Nuclear Generating Station, Units 1 and 2), ALAB-461, 7 NRC 313 (1978).................................................. 3,81 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),

A LA B -422, 6 N RC 33 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Southern- California Edison Co. (San Onofre

- Nuclear Generating Station, Units 2 a nd 3) , A LA B-717, 17 N RC 346 (1983) . . . . . . . . . . . . . . . . . . . . . . 83 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 a nd 3), ' A LA B-673, 15 N RC 688 (1982) . . . . . . . . . . . . . . . . . . . . . . 12 Washington Public Power Supply System (WPPSS Nuclear Project No.3),

A LA B -747, 18 N RC 1167 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,16

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Atomic Safety'and Licensing' Board Carolina ' Power- L Light Co. . (S hea ron Harris Nuclear Plant), LBP-85-27A,-

c 22 N R C ' 207 ( 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46,92

Carolina Power & ' Light Co. (Shearon Harris- Nuclear. Plant, Units 1 and 2),

LB P-84-29 B, 20 N RC 389 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95,97

~

Consolidated Edison Co. of New York (Indian Point, Unit 2),

LBP-83-68, 18 NRC 811 (1983), generally approved as to emergency planning issues, C L l 6, - 21 N R C 1043 ( 1985 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

~

Consumers ' Power Co. (Big Rock Point- .

Plant), LBP-83-44,18 NRC 201

. (1983), ~ aff'd on sua sponte review, A LA B-795, 21 N RC .1 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 46,78

.. Consumers Power Co'. (Big Rock Pointi Plant), - LB P-82-77, 16 ' N RC ' 1096 (1982)...................................................... 88

- Kansas . G~as ' & Electric Co. (Wolf Creek Gener-ating Station,- Unit No. -1), . LBP-84-26, 20 N R C 53 ( 1984 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82, 89 Long Island Lighting Co. (Shoreham Nuclear.

Power Station, Unit 1), LBP-85-31, 22 N RC1410 ( Au g . 26, 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Long Island Lighting' Co. (Shoreham Nuclear

Power Station, Unit 1), LBP-85-12, 21 N R C 644 ( 1985 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim-Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-19,

,15 - N R C 601. ( 1982 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

~

- Long Islan'd Ligh' ting Co. (Shoreham Nuclear Power Station, . Unit 1), LBP-82-75, 16 N R C 986 ( 1982 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 79 -

Long Island Lighting Co. (Siioreham Nuclear Power Station, Unit 1), LBP-82-115, 16 N R C ' 1923 ( 1982 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,79

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. Louisiana -Power & Light 'Co. (Waterford

.. Steam Electric Station, Unit 3), .

LB P-82-100, 16 N RC 1550 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

. Metropolitan Edison' Co. (Three Mile Island Nuclear Station, Unit No.1), .

- LBP-81-59,14 NRC .1211 (1981),

aff'd in most respects, ~ ALAB-697,

16 NRC 1265 (1982), and ALAB-698, 16 NRC .1290 (1982), - modified, CLI-83 7,17 NRC 336, and rev'd in L pa rt, C LI-83-22, 18 N RC 299 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . passim Pacific' Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and -2),

LBP-82-70, ~16 NRC 756 (1982), aff'd, A LA B -781, 20 N R C 819 (1984 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Pennsylvania Power & Light Co. (Susque-hanna Steam Electric Station, Units 1 and 2), LBP-82-30,15 NRC 771,- sua sponte ' review,- ALAB-702,16 NRC- 1530

(1982)...................................................... 22 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), .

LB P-85-14,- 21 N RC 1219 (1985) . . . . . . . .'. . . . . . . . . . . . . . . . . . . . . 28,30

. Philadelphia Electric 'Co. (Limerick Generating Station, Units 1 and 2),

L B P-84-18, 19 N RC 1020 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Public ' Service Co. of New ' Hampshire

. (Seabrook Station, Units 1 and 2),

LB P-83-32 A, - 17 N RC 1170 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

- Public Service Co. of. New Hampshire (Seabrook Station, Units 1 and 2),

L B P-82-106, 16 N RC 1649 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Southern California Edison Co. (San Onofre Nuclear. Generating Station, Units 2 and 3), LBP-82-39,15 NRC 1163. (1982),

'af f'd , A LA B -717, 17 N RC 346 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . passim Union Electric Co. (Callaway Plant, Unit 1),

. LBP-83-71,18 NRC 1105 (1983) ........................... 78

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-x-Director's Decisions Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), DD-84-11, 19 NRC 1108 (1984) ...................................... 46 Unpublished Licensing Board Orders Memorandum and Order Determining that a Serious Safety Matter Exists, Docket No. 50-322-OL-3 (July 24, 1984 ) ( u n p u b l i s h e d ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Memorandum and Order Denying Motion of Suffolk County to Admit New Contention, Docket No. 50-322-OL-3 (Sept. 7,1984)

( u n p u b li s h ed ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pa s s im Prehearing Conference Order (Phase l-Emergency Planning), Docket No. 50-322-0L-3 (J uly 27, 1982) ( u npu blis hed) . . . . . . . . . . . . . . . . . . . . 13 Special Prehearing Conference Order (Ruling on Contentions and Estab-lishing Schedule for Discovery, Motions, Briefs, Conference of Counsel and Hearing) Docket No.

' 50-322-OL-3 ( Aug. 19, 1983)

- ( u n p u bli s h ed ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p a s s im Regulations 10 CFR S 2.714(a) ............................................. 16,18 10 C F R S 2. 714 ( a ) ( 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,18 10 C F R S 2. 714 ( b ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7,15 10 C F R S 2 . 743 ( c ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 10 C F R S 2. 762 (d ) ( 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pa s s im

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1.

-xi-10 C F R S 2. 762 ( d ) (3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 10 C F R - S 50 . 4 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 7, 9 2 10 C F R S - 50. 47 ( a ) ( 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p a s s i m

^ 10 C F R S 50. 47 ( b ) (4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 10 CFR S 50.47(b)(5) ......................................... 80,81 10 C F R S 50. 47 ( b ) ( 13 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95,96 10 C F R . S 50 . 4 7 ( b ) ( 15 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 10 . C F R S 50. 47 ( c ) ( 1 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 10 C F R S 50. 47 ( c ) (2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p a s s im 10 C F R S 50. 47 (d ) . . . . . . . . . . . . . . . . . .............................. 7 10 C F R Pa rt 50, A p p . E , lV. D . 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pa s s im Miscellaneous 45 Fed. Reg. 55,402, 55,406'

( A u g . 19 , 1980 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Long Island Regional Planning Board, Population Survey (1985)................................... 15 Manual of Protective Action Guides and Protective Actions for Nuclear i n cidents ( Rev . 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pa s s im Newsday,-Sept. 25, 1985, at 21. ................................ 19 New York Daily News, Sept. 25, 1985, atNS-3....................................................19 N U R E G - 03 9 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p a s s i m N U R E G - 0 6 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . p a is s i m -

N U R EG -0654, 5 l l . A . 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2, 29 N U R E G - 0654, 6 l l . E . 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 6, 79 N U R EG -0654, S l l . F .1. e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 79

r-

-xii-N U R EG - 0654, S l l . G . 4. C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 N U R E G - 0654, S ' l l . H . 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 6, 79 N U R EG - 0654, S I I . J .10. k . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 N U R E G - 0654, . S I I . J .1 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90, 9 2 N U R EG - 0654, S t l . M . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 5, 96 N U R$Gi O654, S I I . O . 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

- N U R EG -0654, A p p . 3, S B . 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 N U R EG - 0654, A p p . 3, S B . 2. c . . . .~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 N U R E G - 06 54 , A p p . 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Webster's New Collegiate Dictionary

( 9 t h ed . 1985 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 me..

C' ,

3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board in the Matter of )

)

LONG-ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning (Shoreham Nuclear Power Station, ) Proceeding)

Unit 1) )

LILCO's Brief in Opposition to the Intervenors' Appeal of the ASLB's Partial Initial Decision on Emergency Planning

1. INTRODUCTION Long Island Lighting Company files this brief in opposition to the October 23, 1985 brief of the New York governmental intervenors in this case

-- Suffolk County, New York . State and the Town of Southampton -- appealing from the factual determinations of the Atomic Safety and Licensing Board's April 17,1985 Partial Initial Decision on Emergency Planning, LBP-85-12, 21 NRC 644.1/ LILCO believes, for the reasons outlined in this brief, that this 1/ LlLCO~ earlier took an appeal from the novel legal-authority aspects of the April 17 Partial initial Decision and from the two factual issues on which the Licensing Board had not found in its favor. The Licensing Board's dispo-sition of the legal authority issues was affirmed by this Appeal Board on October 18,1985, ALAB-818, 22 NRC  ; a petition by LILCO for Commis-sion review of these issues is now pending. The Appeal Board retained juris-diction over the two factual issues from LILCO's appeal -- conflict of interest and the absence of a state plan -- in order to review them along with the re-maining factual issues from the April 17 PID. Also pending separately before the Appeal Board now are cross-appeals by LILCO and the Intervenors from various aspects of the Licensing Board's August 26, 1985 Concluding Partial Initial Decision on Emergency Planning, LBP-85-31, 22 NRC 410, involving is-sues relating to LILCO's use of the Nassau Coliseum as a reception center for evacuees.

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g Appeal Board should affirm the ASLB on each of the matters raised in this ap-peal.

The decision from which Intervenors appeal is lengthy -- 276 pages in NRC Reports exclusive of appendices -- comprehensive, and detailed. Those portions of it from which they appeal occupy over 240 of these pages. It was I

written by a Board whose technical members were veterans of other emergency planning proceedings and therefore had first-hand knowledge about the kinds of factual issues raised here. The record underlying the decision consists of some 7,000 pages of prefiled testimony, 201 exhibits and additional thousands of pages of written pleadings, tried between December 1983 and August 1984 in 81 days of live proceedings comprising over 15,000 pages of transcript and summarized later in some 1600 pages of proposed findings. The substantial

-discovery in addition to the formal record included the depositions of some 65 witnesses.

Most of the parties' principal witnesses were cross-examined at consider-able length, and'thus the ASLB had an opportunity to form its own judgments about the nature and extent of the witnesses' expertise and candor. This op-portunity for an experienced ASLB to view the witnesses at length lends addi-tional weight to its findings on the factual issues now on review.

The thoroughness of the ASLB's process was not merely a function of the length of the proceeding, but also of its intensity. All parties were sub-stantially represented by expert witnesses and consultants and counsel. None was logistically limited in its participation. The Board was frequently required to exercise hands-on control of the case even when hearings were not in ses-L l

sion, to mediate. discovery disputes, rule on motions, and monitor schedules.

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.- Virtually every significant ruling it rendered, and numerous lesser ones, were subject, directly or indirectly, to challenge, eith~er by interlocutory appeal or l by request for reconsideration.

In short,. the proceeding now before this Appeal Board for review of purely factual issues was one contended vigorously and at length by well equipped litigants, presided over in close detail by an experienced ASLB, and subjected to numerous opportunities for contemporaneous review and reconsid-eration . This background has numerous potential implications for the Appeal Board's review.

The first is in connection with the Intervenors'. invitation to this Appeal Board to conduct an essentially d_e novo review of the Licensing Board pro-ceedings. This they have effected by two principal means. First, they have raised, in relatively cursory fashion, a broad range of issues -- 29 ' involving dispositions on the factual merits and four dealing with exclusion of conten-tions -- rather than focusing their attention on issues of highest priority to them. As a result, various of the issues are so summarily treated as to have been constructively ~ waived or abandoned.2/ Second, they have merely re-hashed their peculiarly one-sided view of the record below and asserted that the ASLB was wrong, without any reference to a standard of review.

2/ The Commission's Rules of Practice provide that "[an] appellant's brief must clearly identify the errors of fact or law that are the subject of the ap-peal. For each issue appealed, the precise portion of the record relied upon in support of the assertion of error must also be provided." 10 C.F.R. 5 2.762(d)(1). Commission case law, consistent with general federal case law, holds that issues not briefed with sufficient particularity on appeal are deemed to have been waived or abandoned. Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-802, 21 NRC 490, 496 n.30 (1985);

Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-461, 7 NRC 313, 315 (1978); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397 (1976).

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, If the Intervenors were not' skilled advocates representing clients with extensive resources, or if the proceedings below showed fewer hallmarks of deliberateness and care, the Intervenors' invitation might appear attractive.

In the present. circumstances, however, there is no reason for the Appeal Board to stretch its inquiry beyond the matters plainly and sufficiently raised by the appeal papers and the decision below. Further, the nature of the pro-cess below suggests, particularly as to factual issues determined on the mer-its, that this Appeal Board should accord considerable deference to the deci-sionmakers below, much in the manner of the " substantial evidence" test followed by Courts of Appeals on review of factual issues. from adjudicatory proceedings.

The Intervenors assert, too, that the testimony of their witnesses is somehow entitled to greater weight, all else being equal, than that of LILCO or the NRC Staff or FEMA witnesses, because their witnesses, as employees or contractors of local governments, somehow possess inherently superior ex-pertise. This is reflected both in the introduction to their brief at 2-3 and in their repeated complaints, particularly on the traffic issues (Intervenors' Brief at 64-84), that the Licensing Board fixated on the allegedly spurious precision of quantitative mathematical modeling in preference to the practical first-hand experience of police officers. Brief reply to these arguments here will save case-by-case discussion later.

First, the organizational identity of witnesses does not add to or take

'from their expertise per se except to the extent that they are testifying within the scope of their expert official duties.3/ Thus, the mere fact that various of 3/ In this regard, the Intervenors' citation to a recent federal District Court case, U.S. v. Lambert, 589 F. Supp. 366, 370 (M.D.Fla.1984), Inter-(footnote continued)

m

. the Intervenors' witnesses were local or state officials or consultants lends their testimony no presumptive preference on matters relating either to ordi-nary fact (ea, dimensions or capacity of roadway systems) or its application to the requirements of federal law (e.g., that evacuation times be reliably esti-mated) . Second, by distinct contrast to the legal authority issues separately decided, the purely factual issues now before this Appeal Board are garden-variety issues which recur again and again in emergency planning litigation.

The Licensing Board found explicitly that there is nothing unique about emer-

.gency planning on Long Island, 21 NRC at 786 n.7, 22 NRC at 427; there are no special disciplines or analytical tools applicable to emergency planning at Shoreham but not elsewhere, or vice versa. Therefore, a Licensing Board's preference for one analysis over another for relatively conventional reasons cannot be impeached merely because its reasoning is applied to Shoreham.4f (continued from previous page) venors' Brief at 3, cuts more against them than for them, in that case, involving a federal wetlands determination, the district judge accorded "sub-stantial deference" to the "well reasoned conclusions of those Government wit-nesses who are officially charged by law with administering the provisions of -

the Clean Water Act." Applied to this case, the passage quoted would suggest that deference, if it is due to any witnesses, is to those federal officials whose business is emergenc) planning pursuant to federal law -- officials from FEMA and the NRC experienced in planning for large-scale evacuations from techno-logical hazards -- rather than to officials of the Suffolk County Police Depart-ment experienced in local police work but not in large-scale emergency plan-ning or in the administration of federal laws requiring it.

4/ For instance, the Licensing Board preferred LILCO's analysis of traffic evacuation times to that prepared by Intervenors. On appeal, Intervenors ac-cuse the Licensing Board of giving undue weight to LILCO's quantified analy-ses, in disregard of the practical experience of police officers and the admit-

, tedly " qualitative" criticisms of their own expert modeling witness. Fair reading of the Licensing Board's lengthy analysis (PlD at 781-826) reveals that the Board did no such thing, but instead recognized that large-scale evacua-(footnote continued) i

. Finally, the intervenors repeatedly urge that the ASLB failed to make the kind of finding they conceive to be required, namely, a talismanic recita-tion issue by issue that there is " reasonable assurance" of implementation of

.each of LILCO's proposed emergency planning measures. Intervenors claim that such issue-by-issue recitations are required by the Commission's regula-tions,10 C.F.R. 6 50.47(a)(1),5/ but cite no support for their interpretation (continued from previous page) tion time estimation is a problem which admits of systematic quantitative analy-sis; and that it is Intervenors, if anyone, who engaged in spurious quan-tification . LlLCO's testimony, with which the NRC and FEMA agreed, characterized the problem of evacuation as one of moving a given quantity of vehicles with maximum efficiency along a network of roadways sufficient over time, though not at any instant,' to accommodate them. (Even Intervenors' traffic modeling testimony agreed with this construct, and with the results yielded by it, when assumptions were held consistent.) LILCO also performed a variety of sensitivity studies to measure the effect of various departures (absence of tiaffic controls, deviation of drivers from assigned evacuation routes, inclement weather) from its base case conditions. Intervenors' direct testimony included descriptions by police officers of specific types of problems (e.g. motorist behavior, descriptions of specific roadways) which, while use-ful, did not penetrate LILCO's modeling analysis. Intervenors' base case mod-eling testimony could be harmonized -- and their witness, Mr. Polk, agreed as much -- with LILCO's. Intervenors' rebuttal testimony on modeling purported to find methodological flaws with LILCO's results, but did not attempt to quan-tify their effects, in various areas where intervenors did prepare quantitative estimates (cars running out of gas, accident frequency) the Board found their estimates flawed in discernible ways, and so stated. In short, the Licensing Board examined the complex problem of evacuation time estimation from a vari-ety of perspectives and simply concluded that, on balance, LILCO's analysis was more powerful. There is nothing improper with this. For a colloquy which illustrates the depth into which the Board penetrated the technical eval-uations of traffic modeling, see Tr. 2512-17 (Shon, Kline, Lieberma n) .

5/ ' Section 50.47(a)(1) reads as follows:

Except as provided in paragraph (d) of this section, no operating license for a nuclear power reactor will be issued unless a finding is made by the NRC that there is reasonable assurance that adequate protective measures can and will be taken in the event of a ra-diological emergency.

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c of this provision. The Intervenors' proposed interpretation certainly is not compelled by language of S 50.47(a)(1), and defies both Commission usage and common sense. The nonstatutory " reasonable assurance" finding has been used, ever since its initial judicial approval in the PRDC case nearly 30 years ago, see Power Reactor Development Co. v. International Union of' Electrical Workers, 367 U.S. 396, 407-08 (1959), to apply to the bottom-line acceptabilit, of a proposed action, it has never been an issue-by-issue test within the con-text of the proposed action. Rather, the issue-by-issue test has historically been an essentially civil-litigation standard with the proponent of the action bearing the burden of proof. The " reasonable assurance" test is then applied to the sum total of the findings on individual issues. There is no reason to treat emergency planning issues differently. Indeed, the inherent flexibility of emerger.cy planning measures may afford opportunities for compensating and offsetting measures, see 10 C.F.R. S 50.47(c)(1) not necessarily available in review of conventional safety issues. Intervenors' " reasonable assurance" ar-gument, as applied to individual issues, is a red herring.

The Intervenors continue to cling to their bastion of arbitrary legal power with respect to sponsorship of and participation in emngency planning.

The arbitrariness of this exercise was amply exposed by the ASLB's careful and detailed treatment of the factual issues in this case, which showed that emergency planning can be undertaken just as effectively for Shoreham as for any other site, and thus publicly destroyed the mythic factual predicate for the Intervenors' invocation of their asserted legal monopoly. LILCO urges the Appeal Board to bear in mind the significant context of this highly detailed factual case when reviewing the parties' submissions, and to affirm the Licensing Board's determinations on the issues presented here.

,. II. PROCEDURAL DECISIONS CHALLENGED BY THE INTERVENORS A. The ASLB Correctly Excluded Contentions 22, 26.B, and the Strike Contention

1. The ASLB Correctly Excluded Contentions 22. A, B, and C on EPZ Size (Special Prehearing Conference Order at 8-12 ( Aug.19,1983); Order Ruling on Objections to Special Prehearing Conference Order at 1-4 (Sept. 30, 1983); intervenors' Brief at 7-12)

Contentions 22. A, B, C, and D allege that LILCO's 10-mile plume expo-sure pathway EPZ should be expanded.@/ Contention 22.D was admitted and the ASLB ultimately ordered the EPZ expanded to take in certain schools. But Contentions 22. A, B, and C were not admitted because they (a) challenge NRC regulations and (b) raise issues repeated in other contentions,

a. Insofar as the Intervenors Argued for a 20-Mile EPZ, Their Argument is Contrary to the Regula-tions and Case Law Contention 22 asserts that "an EPZ larger than 10 miles and perhaps as

@/ Contention 22. A asserts that the EPZ should be expanded because, ac-cording to the Intervenors' Shoreham-specific consequence analysis, persons beyond the 10-mile boundary would receive radiation doses exceeding the Pro-tective Action Guidelines (PAGs) during a very severe accident. This subpart is inadmissible becaese it challenges 10 C.F.R. S 50.47(c)(2) and NUREGs-0396 and -0654. Content. n 22.8 lists 8 " distinguishing characteristics" of the Shoreham site which allegedly require expansion of the EPZ and show that LILCO's Plan fails to provide a base for the a_d hoc expansion of response ef-forts beyond 10 miles. This subpart is inadmissible because it challenges the regulations and because the issues listed were litigated under other conten-tions. Contention 22.C asserts that the EPZ must be expanded because volun-tary evacuation by people outside the EPZ would impede evacuation of people inside the EPZ. This subpart is inadmissible because it is duplicative of Con-tention 23 (shadow phenomenon). Contention 22.D, concerning adjustment of the EPZ boundary according to specific jurisdictional boundaries, was admit-ted.

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large as 20 miles is necessary." Proposed Emergency Planning Contentions, Modified to Reflect Revision 3 of the LILCO Plan at 42 (Jan.12,1984).7/ But NRC regulations!/ and case law 9/ uniformly prescribe an EPZ of "about 10 miles in radius," and 20 miles 'is clearly not "about 10 miles."

The regulation does allow the EPZ boundary to b'e fine-tuned: the exact size and configuration of EPZs "shcIl be determined in relation to local emer-gency response needs and capabilities as they are affected by such conditions as demography, topography, land characteristics, access routes, and jurisdic-tional boundaries." 10 C. F. R. S 50.47(c)(2) . Accordingly, Intervenors have 7/ The Intervenors now assert that they "never argued for a 20-mile EPZ."

Intervenors' Brief at 12. This assertion is contrary to the record. See Suffolk County's Preliminary Response to LILCO's Objections to Intervenors' Consolidated Emergency Planning Contentions at 32-33 (July 11,1983) ("The County believes its detailed evidence . . . will support a finding that under the site specific circumstances on Long Island, a zone of 20 miles is needed";

"the County believes a 20 mile zone is consistent with the NRC rules, but the Board may finally determine that a zone of 10 miles or some other distance is app rop riate") .

@/ 10 C.F.R. S 50.47(c)(2); see also NUREGs-0396 and -0654. For exam-pie, NUREG-0396, at 16, provides as follows:

[l]t was the consensus of the Task Force that emer-gency plans could be based upon a generic distance out to which predetermined actions would provide dose savings for' any such accidents. Beyond this generic distance it was concluded that actions could be taken on an ad hoc basis using the same considerations that went into the initial action determinations.

The Task Force concluded that "the size of the EPZ's need not be site specif-ic," is at 111-7. The Task Force further provided that " emergency planning needs seem to be best served by adopting uniform Emergency Planning Zones for initial planning studies for all light water reactors," 1 at 111-8.

9/ See, n, Pacific Gas r, Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819 (1984); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),

LBP-82-39,15 NRC 1163 (1982), aff'd, ALAB-717,17 NRC 346 (1983).

, couched their contention in terms of " local conditions". To support their ar-gument that all of Contention 22 is admissible, the Intervenors cite an ASLB order which they say holds that the "ASLB would pursue the issue of need to expand EPZ due to Long Island's local conditions." Intervenors' Brief at 8 n.5. But in fact the ASLB held only that it would consider whether planning arrangements within the 10-mile EPZ were adequate in light of the possibility that evacuees from outside the EPZ might enter and disrupt evacuation within the EPZ.10/ Indeed, the ASLB did precisely that when it explored the " shad-ow phenomenon" issue.

b. The Intervenors are improperly Urging the NRC to Set the EPZ Size on a Site-Specific Basis Contention 22. A in particular is a challenge to 10 C.F.R. S 50.47(c)(2) because it proposes that the NRC set a site-specific EPZ for Shoreham, ignoring the 10-mile figure in the regulation and using the same sort of analy-sis that underlies that 10-mile figure. The contention says that the NRC should use the Shoreham probabilistic risk analysis and set the EPZ boundary based on some (unstated) criterion of acceptable risk. This is just the sort of 10/ The passage referred to reads as follows:

[O]ur ruling does not preclude a content;on that be- ,

cause of the geography of Long Island, evacuation planning within an approximate 10-mile EPZ may not be adequate because of the impact of persons outside and to the east of the EPZ choosing to evacuate and having to do so by coming through the EPZ. The Board indicated that whether or not contentions were filed on this issue, it would be pursued by the Board.

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-82-19,15 NRC 601, 618-19 (1982) (emphasis supplied).

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. analysis that underlies the regulation.11/ NUREG-0396 considered the consequences of a broad spectrum of reactor accidents, including design basis accidents, and considered also the effects of a range of meteorological vari-ables. The NRC concluded from these studies that an approximately 10-mile EPZ was all that should be required for any plant; this 10-mile EPZ was incor-porated into Section 50.47(c)(2).

'In' San Onofre the Licensing Board rejected a similar contention t' hat the plume EPZ must be based on site-specific studies. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-39,15 NRC 1163,1178 (1982). The Licensing Board held that the 10-mile boundary could be adjusted inward or outward a mile or two " based upon the judgment of local emergency planning officials." Id. at 1181. But the Licensing Board noted that, "[g]iven the kind and extent of study (in NUREG-0396] that went into the Commission's rule, it would make little sense to attempt to replicate such studies at reactor sites around the country." Id. at 1182.1_2/

,1,1/ See Suffolk County's Response to LILCO's Objections to Intervenors' Re-vised Emergency Planning Contentions at 44-45 (Aug. 8,1983). The Interve-nors simply took LILCO's draft PRA, added their own source term data, and concluded that the PAG's would be exceeded beyond 10 miles in "an especially severe Shoreham accident." LILCO's PRA, which added the most current Shoreham-specific source term input to the same type of analysis used in NUREG-0396, concluded that the PAGs would be met within 2-3 miles.

M/ See also Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106,16 NRC 1649,1661 (1982):

There is no regulatory requirement in support of, and hence no basis for, NECNP's bald assertion that be-yond design basis accidents must be considered by Applicants in establishing the EPZs. In fact, such consideration is inherent in and obviated by the Com-mission's delineation of the bounds of the plume expo-sure pathway EPZ.

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c. Contentions 22.B and C Were Properly Excluded as Repetitious

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Contentio.ns 22.B and C were properly _ denied as repetitious of other contentions.3/ Contention 22.C, and parts of 22.B, are indistinguishable from the " shadow phenomenon" issue (Contention 23). Contention 22.B also cites " local conditions" such as seasonal increase in population, transients, road networks, traffic congestion and spontaneous evacuation. However, the same type of evidence was received on other contentions.H/ The Licensing Board is permitted.to admit only evidence that is not unduly repetitious. 10 C.F. R. S 2.743(c) . Also, reversible error cannot be predicated upon a ruling that excludes evidence unless actual prejudice is shown.M/ The Intervenors M/ Contentions 22. A, B, and C are also vague. The Intervenors should have tailored Contention 22 to point out each local condition that LILCO alleg- .

edly failed to consider in establishing the 10.-mile EPZ, listing the particular local condition that had not been taken into account and describing with ade-quate. specificity how that condition affects .em'ergency ' planning. They would have then proffered an admissible contention under S 2.714(b). Contentions

22. A, B, and C, however, merely consisted of broad complaints about failure to consider site-specific conditions and therefore were properly excluded.

Where Intervenors did specify a particular local condition -- as in 22.D., 23 (shadow phenomenon), 97 (weather), and 64 (shifting winds) -- the ASLB considered it.

1_4/ _ For example, the effects of snowstorms on transportation were consid-ered under Contention 97.B. Cordaro et al., ff. Tr. 6950; Gibbons, ff. Tr.

7005. Traffic congestion was considered under Contention 65.B. Cordaro et al.,

l ff. Tr. 2337; Herr, ff. Tr. 2909. Voluntary evacuation and its effects on the existing rc,ad networks was considered under Contention 23. Tr. 1983 (Weismantle); Cordaro et al., ff. Tr. 2337; Zeigler et al., ff. Tr. 2789. Prob-lems associated with seasonal and transient populations were considered under Contention 61, Cordaro et al., ff. Tr. 8760, and Contention 65, Cordaro et al.

(Contention 65), (f. Tr. 2337, at 92-93 and Att.13.

M/ Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673,15 NRC 688 at 697 n.14 (1982).

, can show no prejudice because their evidence on Contention 22 was substan-tially heard during litigation of other contentions. Finally, 22.B challenged the generic judgment of the NRC, which underlies the 10-mile EPZ regulation, that a 10-mile zone is sufficiently large to protect the public health and safety with only limited g hoc expansion of efforts beyond 10 miles in the unlikely event that accident conditions so justify. 45 Fed. Reg. 55,402, 55,406 ( Aug.

19, 1980). Therefore, the ASLB correctly excluded the Intervenors' proffered evidence on Contention 22.

2. The ASLB Correctly Excluded Contention 26.B on Dependability of Commercial Telephones (Special Prehearing Conference Order at 15-16 (Aug. 19, 1983); Intervenors' Brief at 13-15)

The ASLB properly denied admission of Contention 26.B because the same issue was specifically addressed by Contention EP 11 in Phase 116/ and, as the law of the case, should not be relitigated in Phase ll.H/ The issue raised by both contentions is whether commercial telephones are not depend-able for notifying emergency workers for reasons such as overload, sabotage, power outages, or weather conditions.

,1_6/ The ASLB bifurcated the emergency planning proceeding into Phase I, dealing primarily with matters capable of final resolution before submittal of an offsite plan, and Phase ll, resolving remaining emergency planning issues.

Prehearing Conference Order (Phase I -- Emergency Planning), Docket No.

50-322-OL at 2 (July 27,1982) (unpublished). The Intervenors defied the Li-censing Board's orders and defaulted on Phase 1. As a sanction for the Inter-venors' default, the Phase i proceeding was dismissed. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-115,16 NRC 1923 (1982).

H/ The Intervonors' arguments for reversal of the ASLB's ruling striking testimony on other portions of Contention 26 are premised on their arguments for reversal of the ruling excluding Contention 26.B. The ASLB's rulings on the excluded testimony are correct for the same reasons that Contention 26.B was properly excluded.

J

1. The Intervenors focus on superficial details in 'an attempt to distinguish Contention '26.B from EP 11. First, they claim that the two are different mere-ly because EP'11 was addressed to offsite communications with workers re-quired to report onsite rather than offsite. But EP .11 is premised broadly on the statement that "[t]he ' Plan relies completely for communication with off-site l

national, state, and local response organizations upon telephone

. communications . . .,"H/ and lists as organizations to be called many of the same organizations referenced in Contention 26.B. Compare Contention 26.B(1)(2)(4) & (5) with EP 11(C) L (E). The type of plan -- onsite or offsite -- under .which each call is made is not significant and does not create a

- separate issue.

Second, the intervenors claim that Contention 26.B presents a different issue because the offsite plan requires that a larger number of commercial tele-phone calls, and therefore the " impact" of commercial telephone overload arising solely from calls made by LERO workers could not have been litigated in Phase 13/ But the Intervenors have not shown, in either their brief or motion to admit Contention 26.BM/, that the larger number of telephone calls under the offsite plan would alter the basic issue of the overall dependability of Long Island's commercial telephone system.21/

M/ The text of EP 11 may be found at Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-75,16 NRC 086,1026 (1982).

M/ The Intervenors admit that. overload due to public usage of commercial telephones was a Phase I issue. Intervenors' Brief at 15 n.17.

20/ Suffolk County's Response to LlLCO's Objections to intervenors' Revised Emergency Planning Contentions and tn NRC Staff Response to Revised Emer-gency Planning Contentions at 78-79 ( Aug. 8,1983).

21 / Even -assuming that approximately 200 calls would be placed under the onsite plan and approximately 2500 calls would be placed under the offsite (footnote continued)

3. The ASLB Correctly Excluded the Proposed Contention on LlLCO's Labor Strike (PID at 888-95; Intervenors' Brief at 15-20)

The Intervenors ask this Board to reverse the ASLB's denial of a late-filed contention on the asserted long-term effects of a labor strike by LILCO's union employees on the ground that the decision was " erroneous." Interve-nors' Brief at 15. Before the Intervenors even filed their contention, the ASLB itself had sua sponte raised, as a potentially important safety question, the effect of~ a strike on LILCO's offsite emergency preparedness. Memora n-dum and Order Determining that a Serious F .'ety Matter Exists, Docket No.

50-322-OL.-3 (July 24,1984) (unpublished) . The Intervenors' arguments should be rejected because (1) they did not show good cause for their untimely contention and -(2) the ASLB' properly considered the facts in ruling the con-tention was speculative.

a. The Interven' ors Have Not Shown Good -

Cause for Their Untimeliness '

The standard of review for denial of a late-filed contention was set out in Washington Public Power Supply System 'WPPSS ( Nuclear Project No. 3),

. ALAB-747,18 NRC 1167 (1983).22/ There, the Appeal Board observed that

)

(continued from previous page) plan, it is improbable that the increased number of calls would impact the

' dependability of a telephone system designed to handle a combined population in Nassau and Suffolk Counties of 2,620,203. " Population Survey,1985" pub-lished by.the Long Island Regional Planning Board (1985).

22/ - WPPSS involved the denial of an untimely petition to intervene and the accompanying contention. The decision applies with equal force here where a party submitted a late-filed contention.

f

, "neither this Board nor the Commission has been' readily disposed to substitute its judgment for that of the Licensing Board insofar as the outcome of the bal-ancing of the Section 2.714(a) (lateness] factors is concerned."M/ The Board added that:

[ appellant] has a substantial burden on this appeal.

It is not enough for it to establish simply that the Li-censing Board might justifiably have concluded that the totality of the' circumstances bearing upon the five latenessafactors tipped the scales in favor of denial of the petition. In order to decree that outcome, we must be persuaded that a reasonable mind could reach no other result.

Id. (emphasis supplied).

.The Intervenors have not met this burden. The ASLB found that four of the five lateness factors weighed against admission.24/, that Suffolk County had failed to establish a basis for the contention, and that the contention was speculative. Sept. 7 Order at 11-13.

As to the lateness factors, the Intervenors focus their attack primarily on the ASLB's conclusion that no good cause existed for the untimely filing.

The Intervenors state they "could not reasonably have filed any earlier," _ In-tervenors' Brief at 18, contending that they honestly misinterpreted the scope of the strike contentions raised sua sponte by the Board on July 24 and promptly filed a new contention 12 days after learning of their error. Id. at 23/ Id. at 1171, citing Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-743,18 NRC 387, 395-96 (1983).

24/ 10 C. F. R. S 2.714(a)(1) . The only factor weighing in Suffolk County's favor was that no other party would represent Suffolk County's interests--a factor that the ASLB correctly concluded was of less weight than the other fou r. Memorandum and Order Denying Motion of Suffolk County to Admit New Contention, Docket No. 50-322-OL-3 at 10-11 (Sept. 7,1984) (unpublished)

(" Sept. 7 Order") .  ;

c

. 18 n.23. Many of the alleged factual predicates for the strike contention, how-ever, occurred months before the July 10 strike of LILCO workers.25/ Nor did Suffolk County offer a contention during the 14 days between the begin-ning of the strike and th'e ASLB's sua sponte sponsoring of strike-related is-sues. Moreover, even if Suffolk County did misinterpret somehow the unam-biguous language of the three strike issues admitted by the ASLB, Suffolk County has not explained why it did not mention orally during the 12 days fol-lowing discovery of its misinterpretation' that it intended to file a new conten-tion and needed time to do so. These 12 days occurred when all parties to the emergency planning hearings were well aware that the hearings would end in less than two weeks.26/ There was simply no excuse for Suffolk County's un-timeliness. Certainly the Intervenors have not shown that a " reasonable mind could reach no other result" than the one they seek.2_7/ The Intervenors have 25/ For example, LILCO's austerity program resulted in labor cutbacks on March 6,1984, and any potentially inflammatory bargaining positions were taken during earlier stages of contract negotiations and were publicly reported as much as one month before the strike. In addition, the potential occurrence of a strike could have been foreseen by Suffolk County from the outset of the proceeding. Suffolk County was long aware that most of LERO was comprised of union employees; it is no secret that electric utilitics have been, and will continue to be, the occasional object of union strikes. LI LCO's Answer to Motion of Suffolk County to Admit New Contention at 3-4 (Aug. 27,

~

1984) ("LlLCO Answer"); Sept. 7 Order at 6-7.

26/ See Sept. 7 Order at 6-8; see also LILCO Answer at 2-6.

27/ The Intervenors claim that no other means existed to protect their inter-ests. See Intervenors' Brief at 19 n.24. But whether FEMA agreed with the

Intervenors is irrelevant. Instead, the qu'estion is whether a FEMA-graded exercise and subsequent litigation would provide an opportunity for judging whether LERO is a functioning organization. The ASLB decided that they would.

The intervenors suggest that they would have assisted in developing a sound and complete record. But Suffolk County merely listed four potential (footnote continued)

4

. 18-done little more than assert that they are right and the ASLB was wrong.,

aae Intervenors', Brief at 18-19.

b. ' The ASLB Properly Considered the Facts in Ruling the Contention Was Speculative Second, the Intervenors argue that the ASLB erred in its finding that Suffolk County's proposed contention was without basis and speculative. In-tervenors' Brief at 19-20.28/ The Intervenors contend that the ASLB erred in considering the facts, citing in support this Board's rulings in Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1),

~

ALAB-590,11 NRC 542 (1980), and Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423 (1973). While these cases stand generally for the proposition that the proponent of.a contention need not show that it is well-founded in fact, they do not go so far as to. allow contentions to be drawn out of thin air. The Intervenors asserted that LERO had to be recreated as a result of resignations by all or virtually all LERO (continued from previous page) witnesses and stated that their testimony would address "the implications of the LILCO strike on LILCO's ability to implement its Plan as set forth in this Motion and in the proposed contention." Motion of Suffolk County to Admit New Contention at 11 ( Aug. 20,1984). This hardly constitutes " specific infor-matio n . "

Finally, the Intervenors protest about the likelihood of delay had the contentions been admitted. The time needed for the ASLB to issue its final de-

. cision is an irrelevant consideration. What was important at the time of the ASLB's decision was that the hearings were about to end and that admission of Suffolk County's broad contention would have significantly delayed that ending. Sept. 7 Order at 10-11.

28/ Even if the Intervenors are correct in their challenge to the ASLB's finding that the contention was without basis, the contention was properly de-nied under S 2.714(a)(1) and on the ground that it was speculative.

1

)

workers. The ASLB recognized that no such mass _ resignations had occurred and denied the contention.29/

B. The ASLB Correctly Denied Requests for Discovery Against FEMA (Tr. 12,127-33; intervenors' Brief at 20-23)

Prior to cross-examination of the FEMA witnesses during the emergency planning hearings, the Intervenors sought production of 30 FEMA documents, y

arguing that without these documents the Intervenors could not " meaningfully" probe the basis for the FEMA's RAC (Regional Assistance Committee) review of the ,LlLCO Plan. FEMA asserted an executive privilege and declined to pro-duce the documents. This Board upheld the privilege. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773,19 NRC 1333 (1984).

Following two days of depositions of the four RAC members scheduled to

. testify on FEMA's behalf,30/ the Intervenors on July 6, 1985 (1) renewed their request for production of the 30 documents, (2) requested subpoenas to de-pose the rest 'of the RAC members, and (3) requested postponement of cross-examination of the FEMA witnesses, scheduled for July 10, 1985. The Interve-nors argued that they had been unable to _ meaningfully probe the conclusions

-of the RAC in depositions, and that they required identification of each RAC 29/ The Appeal Board may take official notice of the publicly reported sub-

~

sequen't history of the union contracts signed in August 1984 which. ended the LILCO strikes. These contracts were due to expire in February 1986; howev-er, in September, 1985 the unions and LILCO reached agreement on a further contract that' extends until February 14, 1989. See Newsday, Sept. 25,1985, at 21; New York Daily News, Sept. 25, 1985, at NS-3.

30/

These were Messrs. Baldwin, Keller, Kowieski, and McIntire.

member's ~ views, including initial dissenting views and the reasons why those

views might later have been changed, in order to cross-examine FEMA witness-

es.31/ The ASLB ruled on July 10, 1985 that no compelling need had been shown for the documents, subpoenas, and postponement of cross-examination, and denied the motion and a subsequent oral motion for reconsideration. Tr.

i 12,127-33. The Intervenors here appeal that decision.

The Intervenors confuse inquiry'into the substance and process un-derlying the'RAC's institutional conclusions and FEMA's institutional findings with open-ended inquiry' into individual views of RAC members. The former was permitted by this Board's decision in ALAB-773; .the latter was.not, absent a showing by Suffolk County that FEMA witnesses could not adequately sup-port institutional views and conclusions without identifying individual views.

Review of the deposition transcripts of the FEMA witnesses, as well as the transcript of cross-examination at hearing, discloses that the~ witnesses presented were fully able to explain both the substance and the basis of the specific individual RAC ~ conclusions and the RAC process. The intervenors spent, relatively ' speaking, little time on this area. The only area in which the f witnesses did not provide answers was the views of individual RAC mem-bers.32/ There were no disagreements, however, among RA'C members at the 31/. See Suffolk County's Motion to Compel Production of Documents by FEMA, and to Postpone the Cross-Examination of~ FEMA's Witnesses, and for Is-suance of Subpoenas to the Members of the RAC (July 6,.1984). LILCO's reply -

to this motion included full transcripts of the FEMA depositions. LILCO's Reply to Suffolk County _ Motion. Concerning FEMA Discovery. (July 9,1984) ("LILCO's i

Reply") .

l 132/ The FEMA witnesses provided a tabulation of RAC members' view --

without identifying the members -- on each issue in the review. See LILCO's Reply- at Att.1.

i i

i I

end of their January 20, 1984 meeting as to which rating the LILCO Plan should receive on each NUREG-0654 item; at no time during discussions was the opinion of a RAC member expert in a particular field overridden by others not' expert in that field; and while FEMA witnesses were prepared to discuss the. basis for the RAC's conclusions, the Intervenors spent little time, if any, probing that basis. None of the preconditions to further discovery set by this Board,19 NRC at 1338, has been met.

The Intervenors assert baldly, without reference to testimony, tran-script, or deposition, that "[i]n this case, the need to explore the un-derpinnings of the RAC review was especially compelling." Intervenors' Brief at 21-22. But they have not cited one specific instance where FEMA witnesses (1) indicated a significant difference of opinion on important issues, or (2) were unable to explain underlying bases for their determinations, or (3) re-vealed that they had relied to an inordinate degree on others' views. Conse-quently, the Intervenors have 'not even attempted to establish compelling need in compliance with this Board's decision in ALAB-773. See 19 NRC at 1348.

Ill. ISSUES IN THE ASLB'S PARTI AL -

INITIAL DECISION CHALLENGED BY THE INTERVENORS A. Schools (Contentions 24.E, 24.F, 24.M, 61.C, and 68-71) (PID at 855-75; intervenors' Brief at 33)

The Intervenors challenge the ASLB's decision that school planning is adequate, contending that letters of agreement with schools are required (Con-tention 24.E), and 'that the facts do not support a finding that sheltering, early dismissal, and evacuation of school children could be implemented. The crux of their argument is that some school officials oppose Shoreham and therefore have declined to do Shoreham-specific planning.

, It is true that some schools are refusing to plan. One reason, appar-ently, is school board policy in some districts, where resol ~utions have been passed opposing Shoreham. See Purcell et al. , ff. Tr.10,727, at Att. 6. But the ASLB's finding of adequacy is not based upon a " hope" (Intervenors' Brief

.at 29) that an adequate response will materialize in an emergency. The ASLB's finding is based upon the record of existing sheltering and dismissal plans for schools, aistate requirement for those plans, and LILCO's preplanning.

1. Letters of Agreement with Schools Are Not Required (Contention 24.E)

The ASLB correctly found, based on NRC case law and on the reco'rd, that letters of agreement between LILCO and schools in the EPZ are not re-quired.

First, FEMA does not require agreements with schools. Tr. 12,214 (McIntire) . The guideline for Contention 24.E is NUREG-0654 li. A.3 address-ing agreements with " support organizations." Schools are not " support orga-nizations" within the meaning of NUREG-0654 or in the LILCO Plan.33/ They, like nursing homes, would be seeking assistance from LERO, not giving it.

L 33/ Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, .

Units -1 & 2), LBP-82-30,15 NRC 771, 782 (1982) (ll. A.3 "would appear to apply to the school plans in question"), sua sponte review completed, ALAB-702,16 NRC 1530 (1982), cited by the Intervenors to establish that written school plans are required, is distinguishable. There the Licensing Board concluded that, for the plan in question, written school plans were a

" necessity." 15 NRC at 798. There being no state requirement for such plans and no specific NRC guideline either, id. at 782, the Board suggested that ll. A.3 might serve. In New York, on the other hand, there is a state re-quirement for school plans and thus~ no need to stretch II. A.3 to fit.

, Second, even if schools are deemed to be " support organizations," the existing emergency plans for schools provide assurance, far better than letters could, that school children would be protected during an emergency.

Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1),

LBP-81-59,14 NRC 1211 (1981).}4/ School districts in New York State are re--

quired to file emergency plans and update them annually. .Cor.daro et al. , Tr.

5/30/84 ol. II, at 28 and Att.15-17; Tr. 9228 (Robinson), 9231-33, 9420 (Cordaro), 12,196,12,754 (McIntire, Kowieski),11,044 (Muto). It is undis-

-puted that all schools in the EPZ have early dismissal plans to respond to emergencies. PID at 864.

The Intervenors assert that these school plans are not the sort that pro-vide assurance under NRC law because they were not designed to be used in a radiological emergency.35/ They are correct that some of the plans make no 34/ There the Licensing Board held as follows:

In regard to the absence of letters of agreement with school superintendents of [ sic) school boards, it was the testimony of the FEMA witness that such letters are unnecessary since FEMA is " essentially seeking a school district plan" which would be superior to letters of agreement.

. . . Fu rther, FEMA does not believe that specific letters of agreement are needed if the service or organization providing the service is a normal portion of government and that the services are the normal' resources of that given organization.

i 14 NRC at 1639 (emphasis supplied; citation omitted).

35/ The Intervenors assert that " clearly the State is in the best position to

! know whether existing early dismissal plans can be adapted for use in a ra-diological emergency. " Intervenors' Brief at 25. But it is the NRC that has exclusive authority to determine the adequacy of radiological emergency plans.

Pacific Gas r, Electric ~ Co. v. State Energy Resources Conservation an_d Development Comm'n, 461 U.S.190 (1983) .

r

a -

mention of radiological emergencies. But of the ten plans in the record,3_6/ six expressly include provisions for sheltering or " stay-where-you-are" options.

See Cordaro et al. , Tr. 5/30/84 Vol. ll at Att. 23, 25, 26A, 29, 32, and 33.

. Four of the plans include provisions recognizing the possibility of a ra-diological emergency. Cordaro et Ia_I. , Tr. 5/30/84 Vol. II, at Att. 23, 25, 29, and 32.3_7/ Moreover, directives from the New York State Education Department instruct. school districth to survey their buildings to identify areas where stu-dents could be sheltered. Id. at Att. 15. School superintendents must follow these directives pursuant to the State requirement that all plans "take into ac-

~

count the variable effects of each type of disaster in providing for protection and/or orderly dispersal of students." Id. at Att. ~17, p. 19. These are clearly the sort of plans that provide assurance that schools could respond in an emergency. And as explained further below, existing plans can be used to respond to a radiological emergency.

3_6/ The Invervenors assert that the record contains written plans for two out of 17 school districts in the EPZ. Intervenors' Brief at 26. There are only 11 school districts in the EPZ, not 17, Cordaro et al., Tr. 5/30/84 Vol. l1, at 12, and the record contains 10 written school plans, for eight school districts plus BOCES I and 11.

37/ Those without such provisions violate state directives requiring plans for each type of natural and man-made~ disaster, including radiological acci-dents.

. 2. The ASLB Correctly Found for LILCO on the Remain-ing School Contentions (24. F, 24.M, 61.C, 68-71)

a. Existing School Plans Adequately Provide for Sheltering, Dismissing, and Evacuating Students (Contentions 61.C, 69, and 70)

Under the LILCO Plan, there are three possible protective actions taken by ' schools: sheltering, dismissing students early, and evacuating students

~

directly from school. These actions would be' accomplished using existing school plans coupled with LILCO's preplanning.

As for sheltering, six of the school plans contained in the record include specific provisions for sheltering, Cordaro et al.,' Tr. 5/30/84 Vol. II, at Att.

23, 25, 26A, 29, 32, and 33; four mention radiological accidents. Id. at Att.

- 23, 25, 29, and 32. Thus,- contrary to the intervenors' assertions, school plans are not ad hoc. In addition, all schools have the space to shelter stu -

dents, Tr. 9280 (Weismantie), and suitable sheltering areas, Cordaro et al.,

. Tr.15/30/84 Vol. II, at 47-49; Tr. 9281 (Miele). The State has directed that each school building be surveyed to identify suitable sheltering areas, Cordaro e_t al.,. Tr. 5/30/84 Vol. II, at Att.15, and one plan in the record includes an exhaustive list of shelter areas in the schools within that particular district.

~ld. at Att. 23. Moreover, LILCO offered to survey every school, and in fact did survey five schools to determine the best areas within each to shelter stu-dents. Cordaro et al. , Tr. 5/30/84 Vol. II, at 50, 66-67, 75; Tr. 9280 (Weismantle), 9281 (Miele). LILCO also prepared a set of generic sheltering guidelines that can be used by school officials even without other planning.

~

Tr. 9220-23, 9436 (Miele) .

- LILCO has shown that adequate sheltering capabilities presently exist, if school officials will carry them out. This LILCO cannot guarantee. School

~ district superintendents testified, however, tilat they would seek information and do what is best for the students in the event of a Shoreham accident. Tr.

11,004-5 (Petrilak, Jeffers),11,009 (Muto). This is exactly what LILCO's be-havioral consultants said people do in an emergency, and it would necessarily involve assembling students in the best sheltering areas within each school, following the school's own internal procedures for retaining students at school, and following the simple suggestions provided them by LILCO. That much is sufficient to support the ASLB's findings.

As for early dismissal, all schools have early dismissal plans.38/ These plans are most frequently used in emergencies such as heavy snowstorms. Tr.

9258 (Weismantle, Robinson), 12,740-41 (Keller, McIntire). Suffolk County's witnesses emphasized that there are practical problems attendant on any unscheduled dismissal, see Tr. 11,094-95 (Rossi),11,096-98 (Petrilak), and no doubt this is so. But Suffolk County witnesses also testified that their early dismissal plans are the quickest way to get children home. Tr. 3113-14 (Muto), 3107 (Smith), 3161 (Jeffers) . That is why the LILCO Plan provides a recommendation _ to schools to use their early dismissal plans.

The LILCO Plan also provides a recommendation that children be evacu-ated, that is, loaded on buses in accordance with early dismissal plans, and 38/ The Intervenors assert that early dismissal "would be severely disrupted by parents going to schools to pick up their children," Intervenors' Brief at 32, but presented no evidence to support this claim. The~ ASLB found that some parents might engage in this activity, but not enough to significantly disrupt an early dismissal. PID at 866. This finding is supported by the record and should be affirmed.

pm - - -e- -a 4 --

. transported directly out of the EPZ, rather than to their homes as they wo'uld be during a regular early dismissal. LILCO will provide maps fer each school indicating the recommended best route to that school's reception center outside the EPZ. Cordaro e_t a_1. , Tr. 5/30/84 Vol. II, at 52-54.

b. Agreements with School Bus Drivers Are Not Required (Contention 24.M)

Contention 24.f1 alleges that LILCO's Plan is deficient because it does not contain any agreements with school bus drivers obligating them to imple-ment early dismissals or evacuations.39/ To the extent the contention alleges that bus drivers will not perform their usual duties during a radiological emer-gency, the evidence presented in connection with Contention 25 (role conflict) disposed of that allegation. The ASLB properly found that, although some school bus drivers would experience conflict between their official duties and family concerns, this conflict would not be a significant problem at Shoreham.

PID at 675, 679.

Insofar as Contention 24.M alleges a physical lack of agreements with bus companies, or the insufficiency of existing agreements, the ASLB correctly found that existing contracts are adequate. It is undisputed that current con-tracts obligate bus companies to respond to a school's decision to implement early dismissal, Tr. 3115 (Muto), and that the bus companies have historically 39/ In an earlier ruling, the Board interpreted this contention as concerning bus companies and not individual drivers. Special Prehearing Conference Order (Ruling on Contentions and Establishing Schedule for Discovery, Mo-tions, Briefs, Conference of Counsel and Hearing), Docket No. 50-322-OL-3

( Aug.19,1983) (unpublished). Clearly, agreements with individuals are not required. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-84-18,19 NRC 1020,1054 (1984) .

l i

met this obligation. Tr. 3116 (Muto) . Citing Consolidated Edison Co. of New York (Indian Point, Unit '2), LBP-83-68,18 NRC 811 (1983), the Intervenors neverth~eless argue that LlLCO must obtain separate agreements in which bus drivers agree to drive during a radiological emergency. In Indian Point, how-ever, the Licensing Board was confronted with a total absence 'of agreements with a town's bus drivers. Id. at 935. See also Philadelphia Electric Co.

(Limerick Generating Station, Units 1 and 2), LBP-85-14, 21 NRC 1219,1276 (1985) ("It is unnecessary for a school district to enter into an ancillary agreement with. a bus provider, or for the county to obtain a letter of under-standing with a bus provider, to ensure that' buses guaranteed under an exist-ing contract would be provided in a radiological emergency." (citation omit-ted)). Here, contracts between schools and bus companies are already in place.

Given the record showing the extensive emergency planning that exists for ' schools in the EPZ, all of the Intervenors' complaints regarding school is-sues can be narrowed to this small point: when the school buses are loaded as for early dismissal and bus drivers are handed a map in an emergency to take children outside the EPZ, the drivers will not function because no school plans or letters of agreement so provide. This is nonsense.40/ _

4_0/ Other asserted problems are insignificant. For example, the routes to reception centers would be different than the normal early dismissal routes.

.LILCO would remedy this by distributing maps to drivers indicating the recom-mended best routes outside the EPZ. Also, according to the plans, if an in-sufficient number of school bus drivers respond, other school personnel will substitute as drivers. LILCO has offered as well to provide dosimeters and emergency training to all potential bus drivers. Cordaro et al. , ff. Tr. 7043, at 11; Babb et al. , ff. Tr.11,140, at 78-82.

.- B. Special Facilities (Contentions 24.G, 24.J, 24.K, 24.N, 60, 63 and 72) (PID at 775-78, 827-46; inter-venors' Brief at 34-41)

1. Agreements With Special Facilities Are Not Required (Contention 24.J)

The ASLB found that agreements with nursing and adult homes, nursery schools,- hospitals, ~ and other special facilities in the EPZ are unnecessary be-cause the, listed facilities are not " support organizations" within the meaning of i

NU REG-0654. _ PID ~ at 833. The Intervenors assert that these special facilities are support organizations and that letters of agreement are necessary to show 1

their ' willingness 'to implement protective actions in an emergency.

NUREG-0654 does not define a " support organization" other than to de-scribe it as "having an emergency respon'se role within.the Emergency Planning i- - Zones." - NUREG-0654 11. A.3. FEMA ' define's " support organization" as any or-ganization that LERO would rely on .in an emergency. Tr.12,192 (Kowieski) .

t

' LlLCO would not " rely on'_' the _special facilities listed; rather, the listed facili-ties would be the ones seeking help from 'LILCO. Cordaro et al., ff. Tr.

.5/10/84. Vol. II, at 7-8. Since the listed facilities would only take actions to protect their own charges and would not .be-providing a support function to LERO, 'the facilities do-not constitute the type of " support organization" for ,

which letters of agreement are required. Tr. 12,251 (Kowieski); 12,254 (Keller) .

The Intervenors' underlying complaint'in Contention 24.J, as well as in r - other contentions concerning letters of agreement, is that LILCO has 'not guar-anteed that the named facilities would.actually implement protective actions if an . emergency arose. But, the purpose of agreements is to confirm available .

s 4

. . . - - . - - - ~ - - - . - .- - ,-. ,- .- ,-. , - - . , , , - . - - - - - . , . , . - , . - - - - . -

. resources and to assure that providers are capable of providing those resourc-es,4] / not to make facilities promise to protect themselves. Therefore, the ASLB properly refused to require agreements with special facilities.42/

2. LILCO Has Adequately Planned for Protection of the Radiosensitive (Contentions 60 and 63)

The ASLB found that guidelines for selective sheltering and selective evacuation need not be set out in the Plan. LERO would recommend selective sheltering or selective evacuation only if the State recommended that action.

Cordaro et al. , ff.Tr. 8760, at 9-11; Plan at 3.6-5. The State would make that decision, not LERO. Absent instructions from the State, if sheltering or evac-uation were deemed advisable for any part of'the population (including the ra-diosensitive) based on the PAGs, LERO would recommend sheltering or evacua-tien for the entire population in the affected area.43/ Cordaro et al. , ff. Tr.

8760, at' ll; Tr.- 8778, 8780, 8822, 8825 (Daverio), 8784 (Miele), 8787, 8805 41/ Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),

r LBP-85-14, 21 NRC 1219,1273 (1985) .

t 42/ People have significant incentive to protect themselves without signed agreements obligating them to do so. Further, history shows that, in times of disaster, providers will respond to the best of their ability with available re-sources without any particular incentives or inducements. 21 NRC at 1273, 1274.

43/ Selective sheltering or evacuation might be recommended for projected doses below the accepted PAGs (i.e., below 1 rem whole body or 5 rem thy-roid) for children and pregnant . women, thereby triggering a sheltering or evacuation recommendation for the entire population in that' area. The precise dose at which these actions would be recommended .cannot be pinpointed in ad-vance, despite the Intervenors' persistent attempts to do so. Tr. 8793-95 (Miele), 8814-17 (Watts, Cordaro). A recommendation to take protective action at any level below one rem whole body could only be made after considering all the factors set out in the Plan, e.g. , weather conditions, projected duration of the release, plant conditions, etc.

i

. (Corda ro), ' 8813 .(Watts) . With or without the State's instructions, then, LILCO's Plan adequately protects t'he radiosensitive.

4

3. LILCO's Planning for Hospital ~ Patients is Adequate (Contentions 24.G, 24.K, 60, 63, 72.D, and 72.E) 44/

.The LILCO Plan calls for a sheltering recommendation for the three hos-4 pitals at th'e edge of the Shoreham EPZ, even if the general population has been-instructed to eva'cuate, unless LERO projects that the shelter dose would be excessive.45/ The Intervenors object to the' ASLB's approval of the Plan because (1) LILCO witnesses would not identify one specific dose level at

- which' exposure becomes " excessive"; (2) LILCO's evacuation planning is alleg-edly based on ad d hoc acquisition of transportation resources; and (3) patients F might be exposed to an increased risk if they are not evacuated.

. The Intervenors complain that LILCO's witness could not define the spe-cific dose level that would be considered excessive, and that without that. fig- '

ure, the plan is inadequate. To' the contrary, two LILCO witnesses stated that the " excessive" determination would be based on the EPA PAGs for evacuation

. 4_4/ Contention 24.G alleges that LILCO has not obtained agreements with ambulance companies to provide a sufficient number of ambulances'and ambulettes. Contention 24.K alleges that the Plan is inadequate because LILCO has no agreements with personnel to provide medical support services in the evacuation vehicles. Contentions 60 and 63, discussed previously, allege a lack of guidelines for. selective sheltering and selective evacuation. Contention

.72.D asserts that LILCO's Plan fails to specify adequately the circumstances under which hospitals would be instructed to evacuate. Contention 72.E com-plains that LILCO. plans only for an ad hoc evacuation of hospitals.

45/ Sheltering is the' primary response due to several factors, including the hospitals'- locations at the edge of the 10-mile EPZ, the sheltering values inher-ent in hospital-buildings, and the increased risk of adverse health effects in evacuating hospital ~ patients.

. 1

, - (i.e. five rem whole body or twenty-five rem thyroid), Tr. 8884 (Watts, Miele), taking other factors into account such as the possible duration of expo- .

sure and the dose actually being measured at the facility. Tr. 8883 (Watts) .46/ Therefore, although LILCO witnesses did not identify one single dose level at which evacuation would be recommended, they identified the

. criteria that would be considered by LERO and the hospital administrators in e

making the appropriate protective action recommendation.

The Intervenors' other arguments center on the ASLB's conclusion that the low probability of an excessive shelter dose justifies LILCO's planning ap-proach.47/ LILCO's testimony- showed that, for a variety of reasons, detailed preplanning for evacuation of hospitals is of marginal benefit, including the facts that the hospitals are nearly 10 miles from the Shoreham site and that they offer significant sheltering benefits due to their construction.4_8/ More-over, a' host of other factors indicate that any evacuation plans for hospitals would necessarily be very general in nature. Cordaro et al. , ff. Tr. 9101, at

.11. 4_9/

4_6/ The EPA Manual of Protective Action Guides expressly acknowledges the need in certain circumstances to apply different criteria in establishing the ap-propriate protective action -for special groups, including bedridden and criti-cally ill patients. Cordaro et al. , Tr. 5/10/84 Vol. II, at 24-25.

47/ Tr. 8878 (Cordaro) (that situation is not even " remotely likely"); 8885 (Miele) ("an extremely low probability of happening").

4_8/ LILCO would implement hospital evacuation by expanding existing trans-portation resources. That is, ambulances and ambulettes -currently under con-tract would transport patients. Those vehicles would already have evacuated other special facilities closer to the plant and the handicapped at home. Avail-able vehicles would be matched to the needs of the hospitals at the time of an accident. Cordaro et al. , ff. Tr. 9101, at 11-13.

49/ See, e.g., Southern California Edison Co. (San Onofre Nuclear Generating S.tation, Units 2 and 3), CLI-83-10,17 NRC 528, 533 (1983).

(footnote continued)

. 4. Letters of Agreement with Relocation Centers for Hospitals Are Not Required (Contentions 24.N and 72.C)

The Intervenors challenge the ASLB's determination that no significant benefit to public health and safety would be obtained by requiring letters of agreement between EPZ hospitals and potential receiving- hospitals. PID at 840.

In response to LILCO inquiries, hospitals outside the EPZ have indicated that in the event of an emergency, they would accept as many patients as pos-sible. Cordaro et a_1. , Tr. 5/10/84 Vol. II, at 15. These hospitals refuse to commit in advance to exact numbers because of the inherent day-to-day fluctu-ation in types and numbers of patients.50/ However, past disaster history shows that hospitals do everything they can to respond to patient and commu-nity needs. Id. at 15-17. Because of the verbal agreement already reached (continued from previous page)

The regulations do not require dedication of resources to handle every possible accident that can be imag-ined. The concept of the regulations is that there.

should be core planning with sufficient planning flexi-bility to develop a reasonable ad hoc response to those very serious low probability accidents, which could affect the general public.-

5_0/ This fluctuation is a key difference between hospitals and other special facilities. _ The populations in nursing and adult homes, as well as in other special facilities, are more stable, therefore allowing for more accurate esti-mates of available space. The Wolf Creek case cited by intervenors is distin-guishable in that the hospitals there were apparently able to predict the num-ber of available beds. In the present case, the hospitals could not accurately estimate the amount of available space, so letters of agreement would be a meaningless gesture.

l l

, and the history of hospitals' disaster response, the ASLB found that the Plan provides reasonable assurance that adequate protective measures can and will be taken for hospital patients. PID at 844-45.51/

5. LlLCO Has Planned Extensively for Sheltering Hospital Patients (Contention 72.D)

The Intervenors assert that no facility-specific sheltering plans exist, and that the ASLB acknowledged that such plans do not exist.52/ This is sim-ply false. Sheltering plans have been developed for all three hospitals within the EPZ, as a result of innumerable meetings with hospital administrators, sur-veys of their buildings, discussions (on topics including communications, staff needs, patient preparation, and enhancement of physical facilities), blueprint reviews, and consideration of special needs (such as portable oxygen and suc-tion equipment). Tr.10,053-72 (Robinson et al. ) .

5_1f 'The Plan contains a listing of potential receiving hospitals and their tele-phone numbers, along with procedures for LERO personnel to contact them.

52/ Intervenors totally mischaracterize the ASLB's findings on this issue.

In two full paragraphs the ASLB summarized all the steps LILCO and the hos-pitals (and other special facilities) have taken to assure that a sheltering rec-ommendation can and will be carried out. The Intervenors' statement connotes a finding by the ASLB that no planning has taken place. in fact, the ASLB characterized LILCO's work in developing sheltering plans as " commendable."  :

PID at 777-78. 1 i

, C. Credibility and the Evacuation Shadow Phenomenon (Contentions 15 and 23) (PID at 655-71, 687-701; Intervenors' Brief at 41-54)

1. LILCO's Credibility with the Public Will Not inhibit Protective Actions (Contention 15)

The Intervenors argue that because LlLCO suffers from low credibility, and LILCO is the sole source of protective action recommendations, th'e ASLB had no basis to find t' hat the Plan could be implemented. But low pre-emergency credibility is not dispositive. If it were, no emergency plan would work because no one is " credible to everyone at all times, particularly where nuclear power is concerned." Barnett, ff. Tr. 9689, at 21-22; Tr.10,816-19 (Cole),10,845-46 (Saegert) . What is important are the steps LILCO has taken to provide sound emergency information at the time of the emergency -- steps that any source of emergency information should take to make messages believ-able to the public. The ASLB correctly recognized that by taking these steps LlLCO could issue credible emergency information despite its own low credibili-ty, in surveys, the public "does not give the utility very high marks" on credibility. However, a source can issue useful information even though its pre-emergency credibility is low. Cordaro et al. , ff. Tr.10,396, at 28-29.

It is the credibility of the information, not the credibility of the source, that is the key determinant of public response. Tr. 1511-12 (Mileti) . LILCO has de-veloped its Plan to help ensure that its emergency information is credible, and thus useful, to the public.53/

-53/ LILCO's witness Mileti enumerated seven characteristics that foster belief iri emergency information despite the source's low pre-emergency credibility.

(footnote continued)

The ASLB also found. significant the fact that people will likely credit most information seen as emanating- from trained specialists. PID at 691.

LILCO has satisfied this condition by referring to scientists and nuclear engi-neers, as well as DOE and NRC, in EBS messages. Cordaro et al., ff. Tr.

10,396, at 38-39; Tr.10,454-60 (Sorenson, Weismantle), 496-97 (Weismantle).

LILCO also has secured the agreement of two scientists from the Brookhaven National Laboratory to be present in the Emergency News Center during drills and during an actual emergency. Cordaro et a_1. , ff. Tr. 10,396 (Errata), at 1-2. These Brookhaven scientists will serve as independent reviewers of the information disseminated by LILCO personnel. Id.54/

The Intervenors argue that LILCO's Plan is defective because neither NRC nor DOE representatives would be on the scene during the very early stages of an emergency, so utility personnel would be the sole source of early information and protective action recommendations. This fact is hardly

. (continued from previous page)

Cordaro et al. , ff. Tr.10,396, at 54-55. The Intervenors argue that Mileti cited no evidence whatsoever to support his theory. To the contrary,. Dr.

Mileti's detailed analysis showing the importance of emergency information is based on a vast amount of research. See Cordaro et al. , ff. Tr.1470, _ at 26-41. Mileti testified that "a ream of studies" support his theory. Tr. 10,559

.(Mileti) . When the Intervenors' counsel pressed Mileti for a list of specific emergencies in which good response was elicited despite low credibility, Tr.

10,557-59, Mileti cited the Denver floods of 1965 as one example. Id. When asked to list the studies upon which Mileti based his opinion, he cited two (both of which were also cited by the Intervenors). Tr. 10,559-60. His theo-ry thus stems from empirical sociological research, not from a mere " specula-tive hypothesis" as the intervenors would have it.

54/ It doesn't matter that individual scientists' names are not household words on Long Island. What ,is important is that the public know "that consul-tation is going on with qualified individuals who have a high degree of ex-pertise in the fields in question." Tr.10,501-02 (Cordaro) .

t

.' dispositive, however, since the same situation necessarily exists at every other n'uclear' plant. in the country. Since utility employees are the ones who contin-uously monitor plant operation, they would obviously be the first to discover a malfunction or accident and report it. Tr. 10,521' (Weismantle) . It follows that the earliest response recommendations must rely on these early utility re-ports.55/

In regard to subpart 15.C, the ASLB correctly found it "most ~unlikely" that LlLCO's low credibility would significantly interfere with the protection of school children. The gist of 'the intervenors' argum'e nt is that, since LILCO is not a credible information source, school officials will. not immediately- respond to the EBS messages that will be received at schools over their tone-alert ra-

- dios . Instead, school officials will seek confirmation from other sources, name-

.ly, state and county officials. Tr. 11,061-63. (Jeffers) . After seeking addi-tional ir.larmation, and considering all sources of information, school officials will-implement protective actions based on their best information. Even assum-ing this ; initial reluctance to believe LILCO, how'ever, LILCO's testimony

_showed that at most only a short delay would result. Cordaro et al. , ff. Tr.

10,396, at 95-97.56/

55/ Indeed,10 C.F.R. S 50.47(b)(4) requires that state and local plans " call

_for reliance on information provided by facility licensees."

, 56/ It is important to note what school representatives did not say. They i

did not say they would refuse to believe or accept LILCO information. Tr.

11,061 (Petrilak) ("We would not disregard any information if there was an emergency at the plant. . .; we would consider all sources of information.")

School officials merely testified that they would seek to confirm LILCO informa-tion from other sources. No significant problems result from their desire to do so.

. t i

t a

k.

.. Finally, the ASLB correctly concluded on Contention 15.F that LILCO's Plan satisfies the NUREG-0654 ll.G.4.c requirement that "each organization shall establish coordinated arrangements for dealing with rumors." LILCO has clearly incorporated a coordinated rumor control network into its Plan. People desiring confirmation or clarification of accident information can obtain it from LlLCO's customer relations personnel at the district offices. If customer rela-tions personnel cannot answer the questions, callers will be referred to .the Emergency News Center. District offices will have the latest updated informa-tion, as will local government offices, and LILCO will ensure that all offices issue consistent information. .Therefore, the evidence supports the ASLB's finding that this centrally coordinated rumor control procedure satisfies the regulations and is not rendered inadequate by the unsubstantiated credibility objections contained in Contention 15.F.57/

2. " Shadow Phenomenon" Will Not Impede an Evacuation (Contention 23)

" Shadow phenomenon," as used by the Intervenors, means that people will evacuate in an emergency when they have not been advised to do so, caus-ing traffic congestion and therefore hindering timely evacuation of the EPZ.

57/ The Intervenors argue that people simply will not call LILCO for infor-mation even though the phone numbers are readily accessible, Cordaro et al.,

ff. Tr.10,396, at 106-07, and people actually did call LILCO district offices over one million times in 1983. Id. Moreover, LILCO never argued that its own offices would be the only source:; people would call. People will undoubt-edly call police departments and other local government offices. All of these offices will be kept abreast of the latest emergency information by LILCO per-sonnel, & at 108; Tr.10,675 (Clawson), or by tone-alert radio. Tr. 10,676 (Robinson) . Therefore, consistent information will be available from any source that people call, and the -rumor control network will have performed its fu nction .

,- ^

The Intervenors argue, on the basis of public opinion polls concerning the re-sponse during the accident at TMI and samplings of attitudes from time to time on Long Island, that in a real emergency at Shoreham, " shadow phenomenon" will prevent people from taking appropriate protective actions.

In fact, the response at TMI supports the conclusion that perceptions of risk during an emergency are shaped by the information people are given about the emergency. Giving clear, consistent emergency information encour-ages people to take appropriate protective action. Studies of human behavior in a variety of radiological and non-radiological emergencies show that " shadow phenomenon" is not a problem in emergency response. To conclude otherwise

~

.would be contrary to the planning criteria of NUREG-0654, which is premised on the proposition that public overreaction to a nuclear accident is likely to be

, minimized if its guidance is followed. Louisiana Power r, Light Co. (Waterford Steam Electric Station, Unit 3), LBP-82-100,16 NRC 1550,1562 (1982).

a. Response to Various Emergencies Indicates that

" Shadow Phenomenon" Will Not Prevent an Effective Emergency Response at Shoreham Human-behavior in emergencies has been studied in a wide variety of contexts, Cordaro et al., ff. Tr.1470, at 20-21, including radiological emergencies. Id. at 17-18; see Tr. 2011-12 (Mileti). The LILCO and Suffolk County witnesses agreed that response in an emergency, including " shadow phenomenon," depends upon perceptions of risk during the emergency, Cordaro et al., ff. Tr.1470, at 17-18; Ziegler and Johnson, ff. Tr. 2789, at 5; Tr. 2017-19 (Mileti), 3915 (Cole), but LILCO and the Intervenors differ as to what influences perceptions of risk. The Intervenors assert that

o

_40 perceptions of risk are governed primarily by pre-emergency fears, Cole and Tyree, ff. Tr. 3907, at 3; Mileti and Sorenson, ff. Tr. 3940, at 6-7; Tr. 2893 (J. Johnson), while LILCO contends that emergency information is the primary influence on perceptiens of risk during an emergency. Mileti and Sorenson, ff. Tr. 3940, at 4; Tr. 2012 (Mileti).

The Intervenors contend that due to pre-emergency fear of radiation, many people would overreact in an emergency at Shoreham, creating a " shad-ow" that would impede evacuation of the EPZ. They point to the response to the accident at Three Mile Island in support of this theory, asserting that 141,500 more people evacuated than were advised to, .due to pre-emergency fear of radiation, amd thus concluding that many more people than those ad-vised to evacuate in an emergency at Shoreham will do so. Ziegler a'nd Johnson, ff. Tr. 2789, at 8; Tr. 2893 (J. Johnson); see Tr. 3915-16 (Cole) .

The ASLB found that evidence from radiological accidents and from natural and

' technological disasters bear on the question of likely public response to a ra-diological emergency at Shoreham. PID at 657.

(1) The ASLB Fully Considered the Response to Radiological Accidents at TMI and Ginna The ASLB found, based upon research at TMI, that a large number of people who evacuated during the TMI accident said they did so for a number of reasons, PID at 657, and that " clearly people were influenced by more than one factor in their decision to evacuate." PID at 658. Principal among the reasons were that people were " concerned about safety" and there were " conflicting re-ports from government and utility company officials." Id. at 657. The ASLB concluded that an analysis of the information given to the public during the

. accident at TMI " supports a conclusion that reasonable people would think at the time that the situation was dangerous," PID at 658,5_8/ and that "given the

[ emergency information] at TMI, it appears that the greater unexplained mys-tery is why many residents of the area chose not to evacuate." PID at 659.

The Intervenors argue that the ASLB does not cite any evidence that during a Shoreham emergency the same situation as TMI would not occur. To the contrary, the ASLB considered subsequent response to a radiological emer-gency at Ginna where a steam generator tube ruptured on January 25, 1982.

The incident resulted in the declaration of a site area emergency, a release of radiation, and evacuation of about 150 onsite workers. Information about the accident was communicated to the public in warning messages, but no offsite evacuation of the public was ordered. No " shadow phenomenon" occurred.

Cordaro et a_1. , ff. Tr.1470, at 62; PID at 659. The ASLB concluded from this incident that the public chose not to act reflexively on the basis of pre-emergency fear of radiation, as the Intervenors contend they will in response to every radiological emergency, but that they chose instead to act on the situation-specific information they received during the emergency. PID at 659.

This is consistent with the proposition that information broadcast during an emergency can influence public response. Id.59/

5_8/ The messages at TMI at various times included information that there was radiation in the environment, that a hydrogen bubble might explode, that chil-dren under five years of age and pregnant women within five miles of the plant should evacuate, that general evacuation was being considered, and that there was a question about the severity of the accident. Cordaro et al. , ff. Tr.

1470, at Att. 9-10.

5_9/ The Intervenors' notion that the overresponse of the magnitude at TMI is a foregone conclusion for any nuclear accident is belied not only by the re-(footnote continued) i

I#' ,

4

e t .

(2) . Evidence from Non-Radiological Emer-gencies Supports the ASLB's Decision The intervenors also claim that the ASLB committed " clear error" by

" assuming" that public information ' disseminated during an emergency would

).

encourage ' realistic perceptions of the risk of the emergency and .therefore ap-propriate emergency response. Intervenors' Brief at 52. In . fact, the ASLB sifted'almost 300 pages of testimony from various witnesses from LILCO, the Intervenors, and the. NRC, on behavorial responses in all kinds of

. emergencies, and. heard at least five full days of- hearings on that subject. See Cordaro et al., ff. Tr.1470; Ziegler and ' Johnson, ff. Tr. 2789. There is only scant evidence of beh~avior during nuclear accidents. because there have not

' been' enough such accidents to develop an extensive data base. PID at 659; Cole, ff. Tr. 2792, at 25-26. Sociologists -therefore have also studied experi-ences of response to natural-and technological disasters to develop predictive models of behavior in an emergency. PID at 659.

The ASLB found that (1) human behavior in Suffolk -County during a ra-

~

'diological. emergency is likely. to be fundamentally similar to' human behavior elsewhere under similar: circumstances is'ee Ziegler and Johnson, ff. Tr. 2789, 1

at 7-8); (2) people do not panic in emergencies that involve an entire co'mmuni-

,i ty or neighborhood. (see Cordaro et al., ff. Tr.1470, at 14); (3) people assess

'(continued from previous page) sponse during the Ginna incident, thut by the fact that a revised emergency

-plan for the area around TMI, where' the alleged overreaction . originally oc-curred, has been approved by the NRC, based upon improved public informa-tion efforts in- the plan. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit -No.1), LBP-81-59,14 NRC 1211,1569 (1981) .  ;

4

n. . _ _ _ _ _ _ _ . _ _ . _ . _ - _ _ - - - ~ _ _ .

~

.. e emergency situations at the time of an emergency based upon available-informa-tion, .and decide for themselves what their responses will be (Tr. 1479-80 (Sorenson), 1994-98 (Dynes); Cordaro et al., ff. Tr.1470, at 17-19); and (4)

.peopl e do not simply react to an emergency in a stimulus-response mode, but

' instead consider various aspects of the decision confronting them before they

~

act. PID at 659-60.

The ASLB went on to adopt an analysis of the public's decision-making process in an . emergency from LILCO's experts consisting of the following.

steps: (1) hearing that an emergency is going on; (2) understancling what is happening; (3)' believing that the warning is real; (4) personalizing the. warn-ing as applying to them; (5) deciding what to do; and (6) responding by act-ing on the decision. Cordaro et al., ff. Tr.1470, at 21-26.60/ The ASLB ex-plicitly found that there is "little scholarly disagreement" as to' the .

decision-making process during an emergency, see Ziegler and Johnson, ff.

Tr. ~2789, at - Att.~ 3, Fig.1, and that the extended analysis from LILCO's ex-perts "is the.most complete, detailed, and documented analysis of its kind in our record. The analysis is uncontroverted by Suffolk County witnesses. Al-

' though 'the County did not make a formal-factor analysis of the determinants of behavior,' the witnesses give credence to factors' of like kind." PID at 661.

L 60/ This decision-making process is affected by factors of sender determi-nants and receiver determinants. The sender determinants are credibility of source, consisten'cy, accuracy, clarity, certainty, sufficiency, guida'nce, fre-quency of repetition, location of affected areas', and multiple channels of infor-

- mation, Cordaro et al. , ff. Tr.1470, at 26-35; the receiver determinants are physical characteristics of ~the emergency, social setting, social ties such as family cohesion, social structural- factors such 'as age or gender, physiological factors such as hearing' ability, psychological factors such as cognitive ability, t

personality,- attitude, and pre-warning ' perceptions. Id. at 36-41.

t V

Y

- + -. n-m'- w - .-- -

.= ,

Hence, the Intervenors' assertion that the Board without any basis whatsoever has simply " assumed" that reaction at Shoreham would be " good" is utterly without merit.

b. Opinion Polls Taken in Suffolk County:Cannot Be Used to Predict Actual Emergency Response The intervenors also contend that the ASLB ignored evidence from five public opinion surveys conducted on Long Island during 1982,1983 and 1984 that showed that a large number of people would evacuate during an emergency even if advised not to do so. See Ziegler and Johnson, ff. Tr. 2789, at 15-16; Cordaro et al. , ff. Tr.1470, at 99-102,110; Tr. 1890-97 (W. Johnson) . The ASLB correctly concluded that a poll cannot provide respondents with situation-specific emergency information that would be available in a real emer-gency. PID at 667. This conclusion is supported in the record by Interve-nors' witness Steven Cole, a professor at Stony Brook University and head of the firm that- conducted three of the polls relied upon by the Intervenors, who stated that "there are frequently discrepencies between what opinion surveys-show and the outcome" of_ the action predicted. Tr. 2798 (Cole) .61/

1 61/

1 In the case of the poll he was being questioned about, a poll in which he had incorrectly predicted the percentage of votes a candidate would receive, Dr. Cole indicated that s';ch discrepencies between opinion surveys and final outcomes do not necessarily indicate that the survey is " wrong", explaining There are other reasons why there can be differences between results indicated by an election poll con-ducted a week before the election and the actual re-suits of the election. For example, some voters can change their minds about who to vote for in the last week, particularly . . . and could have switched to one of the other two candidates.

(footnote continued)

The overwhelming weight of the evidence _ of response at TMI, at Ginna, and at other non-radiological emergencies, as well as an analysis of the use-lessness of polls in predicting emergency behavior, supports the ASLB's con-clusion in LILCO's favor on Contention 23.

D. Role Conflict (Contention 25) (PID at 671-79; Intervenors' Brief at 54-62)

" Role conflict" as used by the Intervenors means that, in a real emer-gency, emergency workers would protect their own familie's instead of promptly performing their emergency duties. This theory has plausibility at first blush, because it is a logical conclusion drawn from the fact that people care about their families. It is also the way emergency behavior is portrayed in movies and novels.

-The facts; however, are different. The facts are that everyone worries about his family in an emergency and that people generally try to unite with their families. But people generally are different from trained emergency workers; emergency workers who have a clearly defined role in the emergency do perform that role, despite anxiety about their families. Tr. 921, 922A, 924, 1110,1146,1150 (Mileti) . These principles are firmly established in the scien-tific literature and in essence recognized by NRC case law.

f (continued from previous page)

Tr. 2798-99 (Cole) . Put another way by LILCO witnesses, behavioral inten-tions obtained, for example, through public opinion polls, cannot be used to -

accurately predict responses, because a host of factors present at the time ac-tion is taken can influence behavior to make it inconsistent with the attitude reported in a poll. Cordaro et al. , ff. Tr. 1470, at 71; Tr. 1940 (Richardson); see Cole, ff. Tr. 2792, at 30.

I

, 1. NRC Precedent Rejects " Role Conflict" As a Problem '

Every NRC decision that has considered the Intervenors' theory of " role conflict" has rejected it.62/ Since there is not even alleged to be anything different about " role conflict" on Long Island from " role conflict" elsewhere,g/

these precedents ought to be' dispositive.

2. The Evidence in this Case Shows Role Conflict Not to Be a Problem Moreover, the evidence in this case proves that " role conflict" does not prevent an effective emergency response when emergency workers have a clear The Intervenors' expert witnesses relied on a hand-

~

definition of their roles'.

ful of research papers suggesting the contrary, but these were flawed in two respects: first, they were old papers that have been superseded by more g/ Consolidated Edison Co. of New York (Indian Point, Unit Nos. 2 and 3),'

LBP-83-68, 18 N RC 811,. 958-60 (1983), generally approved as to emergency.

planning issues, CLI-85-6, 21 NRC 1043,1079-85 (1985); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-81-59, 14 N RC 1211, 1489 (1981), aff*d in most respects, ALAB-697,16 NRC 1265 (1982);- L ALAB-698,16 NRC 1290 (1982), modified, CLI-83-7,17 NRC 336, and rev'd in part, CLI-83-22,18 NRC 299 (1983); Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-82-70,16. NRC 756, 767-68, 770, 808 U 69 (1982), ("most responsible workers would resolve their conflicts in a common-sense fashion by seeing to their families' safety and then reporting for duty" 16 NRC at 767-68), aff'd, ALAB-781, 20 NRC 819 (1984); Carolina Power

~

LLight Co._ (Shearon Harris Nuclear Plant), LBP-85-27A, 22 NRC 207, 237-29 (1985) (summary disposition of contention that youthful school bus drivers should 'not be counted on in emergencies); Consumers Power Co. (Big Rock Point Plant), LBP-83-44,18 NRC 201, 207 (1983) (Board satisfied that bus drivers generally will be available), aff'd on sua sponte review, ALAB-795, 21 NRC 1 (1985); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),

DD-84-11,19 NRC 1108,1116-18 (1984) .

M/ Cordaro et al., ff. Tr. 831, at 7-8; Tr. 882 (Dynes),1369 (Erikson) 12,747 (McIntire) .

- ,

• m.,,-- , , -

. recent work; and, second, they addressed almost exclusively members of the general public without clear emergency roles.64/ See Tr. 922-24 (Mileti). By contrast, ~the LILCO witnesses had done a thorough review of the literature and pres ~ented the more enlightened, modern view. Cordaro et al., ff. Tr.

831, at 51-71; Tr. 1133-34 (Sorensen).

Probably the most impressive evidence that role conflict is not a problem

'is that it has not been a problem in any real emergency in the pa's t. See Cordaro et al., ff. Tr. 831, at 42; Tr. 856, 880, 918-19,1015 (Dynes) (role _

conflict has never seemed to be a real problem te researchers who study real emergencies), 1133-36 (Sorensen). The Ohio State Disaster Research Center some years ago instituted a program to create a "research tradition" in the study of disasters. Tr. 852,1151 (Dynes) . The researchers from the Center went to the sites of actual emergencies, as soon after the occurrence of the emergency as possible, and observed emergency organizations in action; they also took over 6000 interviews ~with emergency workers from some 150 disasters 64/ A few early researchers observed people in emergencies reuniting with their families and failed to distinguish between ordinary . members of the public and people with clearly defined emergency roles. The papers relied on by the Intervenors were of this sort. Only two passages.from the research literature quoted in the County's written testimony even suggested that emergency workers had abandoned their duties, and these were early papers written be-fore the importance of role definition was understood.

Indeed, at least two of the studies cited by the intervenors are directly contrary to their theory. Fritz (1961) talked about the " separation anxiety" caused by personnel "who have important official disaster responsibilities."

Obviously such people could not have " separation anxiety" if they had gone-home to rejoin their families. Bates (1963) is even more supportive of LILCO's case. Dr. Mileti explained that he had spoken with Bates and learned that there were only three emergency workers in the community studied and "those three emergency workers stayed on the job, did their work." Tr. 993 (Mileti) .

For an analysis of these research papers, see LILCO Reply Findings on Offsite Emergency Planning at 40-42 (November 14,1984) ("LILCO Reply Findings").

. over a period of perhaps 10 years. Tr.1016-18 (Dynes) . From these data and others, amounting to at least 400 disasters, Tr. 919 (Dyn.es), it became obvious that emergency organizations continued to function, even though pre-sumably every emergency worker with a family suffered anxiety over family members. Cordaro it al. , ff. Tr. 831, at 16-17, 69-71; Tr. 856, 880, 918-19, 1040-41,1012-53,1150-52,1162-64 (Mileti, Dynes) . (In many cases there were too many people, not too few,- because people not on shift reported even though they were not expected to. Tr.1040-41 (Dynes)) . The FEMA witness agreed, based in part on his 15 years of experience. McIntire, ff. Tr. 2086, at 3; Tr. 2101 (McIntire). Supporting this view, even if inadvertently, was

.the testimony of all the other witnesses in this case; none of them has ever seen a case of " role conflict" interfering with emergency response.@/

The Intervenors would prefer to reject the lessons of disaster research by claiming that radiological emergencies are different.

But that argument fails. At the only two radiological emergencies about which evidence was pres-ented, TMI and Ginna, there was little or no evidence of " role conflict."66/

65/ The experience of the Disaster Research Center is consistent with the personal experiences of just about every witness who testified in this proceed-ing. Tr.1171-72 (Weismantle, Cordaro) (no cases of role abandonment in storm restoration), 1237, 1239, 1243, 1261, 1265, 1268, 1283 ( Dilwo rth ) ( no failure of police to respond, though it is difficult to reach off-duty officers),

3185-86 (Jeffers) (teachers ask supervisor' to cover for them), 3111 (Smith)

(checked on his family by phone), 3130 (Rossi) (staff worked to get every-thing done in past emergencies), 3167-68 (Rossi) (drivers report in sick on snowy days and sometimes miss work or have to leave because of family prob-lems), 3169 (Jeffers) (absenteeism in bad weather).

@/ The only evidence of " role conflict" at TMI was three anecdotal reports that some hospitals had shortages of personnel during the accident. For a va-riety of reasons, these reports do not establish a problem with " role conflict."

For one thing, the accident occurred when normal staffing was down to one-(footnote continued)

49_

The report of the President's Commission on TMI devoted only a single sen-tence to the few anecdotal reports that hospital workers had not appeared for duty. Cordaro e_t al. , ff. Tr. 831, at 72.

The reason that role conflict'has never proved a problem in fact is that

" role certainty," that is, an understanding of one's role in -an emergency, keeps emergency workers at their posts.67/ Cordaro et al. , ff. Tr. 831, at 62-64; Tr.1150 (Mileti) . This is the conclusion of the academic experts who have studied the phenomenon. And it is essentially the conclusion of the NRC witness, who testified that taking " responsibility" for an emergency would pre-vent people from behaving inappropriately. Tr.15,215,15,250-51 (Sears)

(" conflict of interest" issue).

LILCO has taken a. number of steps to reduce " role conflict."- it has arranged for an emergency worker tracking system to enable emergency workers' families to contact them. Cordaro e_t al. , ff. Tr. 831, at 22-24; Tr.

894, 901, 904 (Weismantle) .

It has provided a special relocation center for (continued from previous page) third for reasons not related to the accident, for example, an out-of-town med-ical convention. Cordaro et al. , ff. Tr. 831, at 83-85. For another, the .

medical workers did not have clearly defined roles in any radiological emergen-cy plan; TMI was, after example, a bad example of how to manage an emergen-cy. Id. at 72, 81-82, 83. Moreover, there is a great deal of evidence that role conflict was not a problem at TMI. Phone queries by one of the appli-cant's witnesses to about a dozen . organizations in the TMI area found no one who reported role abandonment. Id. at 74-76. Likewise, teachers were re-ported to have stayed at their posts during the' early stages of the emergency.

Tr.1348-49,1414 (Erikson) .

6_7/ Role certainty, in turn, can be produced by a variety of means. One is training. Tr.1110 (Mileti). Another is having emergency workers do their regular jobs. Ambulance drivers, for example, will be doing the same sort of thing they do ordinarily and have " established or well defined roles in emer-gency situations." Erikson and Johnson, ff. Tr.1455, at 30.

. emergency workers' families. Cordaro et al. , ff. Tr. 831, at 21; Tr. 902-04 (Weismantie) . And it has distributed an emergency workers' brochure and ad-vised workers to make advance personal family plans. Cordaro et al., ff. Tr.

1831, at 18, 20-21, 32-33; Tr. 885,1157-58 (Weismantle) . But none of these measures is. necessary. What is important is that emergency workers have a clear idea of their roles.

3. The Intervenors' Lay Opinions Do Not Outweigh Other Evidence The issue, as presented by the Intervenors, is whether the clear weight of expert opinion, and the fact that role conflict has never actually proved a problem, are outweighed by the opinions of. laymen. This lay opinion evidence is of two kinds: the opinions of Suffolk County's witnesses and opinion polls taken of certain emergency workers.

There is no question that Suffolk County's witnesses are of the- opinion that emergency workers will abandon their duties. But those opinions have no basis.68/ No witness had ever seen role conflict make an emergency response ineffective. Tr. 3114 (Muto), 3094 (Petrilak), 3128, 3133 (Rossi),1237,1239, 1243,1268 (Dilworth),1171 (Weismantle, Cordaro). No one knew of any case where it had. Tr.1399-1400 (Erikson), 3147, 3186 (Jeffers). No witness had himself ever abandoned his duties in an emergency, Tr.1249 (Dilworth), 3111 68/ Two witnesses with extensive disaster experience, Dr. Mileti and Mr.

McIntire, testified that teachers can be expected to meet their responsibilities in an emergency. McIntire, ff, Tr. 2086, at 5; Tr. 2136-37 (McIntire);

Cordaro et al., ff. Tr. 831, at 36; Tr. 1168 (Mileti); see also Tr. 1164 (Mileti) . The superintendent of the schools closest to the plant agreed that his personnel will respond. Doremus, ff. Tr. 9491, at 7, 9, Att. 4.

- (Smith), 3136 (Rossi), 3147, 3187 (Jeffers), or thought he would in~ the fu-ture. Tr. 3113 (Muto), 3147 (Jeffers); Doremus, ff. Tr. 9491, at 9.69/ Nev-ertheless, each County witness thought that other people would abandon their roles in an emergency.70/ This simply reflects the common misconception of how people behave in emergencies, a misconception fostered by Hollywood.

The teachers who would have testified for Suffolk County, had their tes-timony been admitted, are no exception. There is no question that 12 teachers can be found who are willing to say that other teachers would abandon school-children in an emergency. Dr. Mileti testified he would expect no less.

Cordaro e_t al. , ff. Tr. 831, at 36. But no teacher testified that he would him-self abandon them.7_1,/ Thus, the testimony was properly excluded, because it was not relevant, Tr. 790-91, and because it would cause undue delay, waste of time, or needless presentation of cumulative evidence, Tr. 791. There is no question that laymes think . role conflict would be a problem in an emergency.

69/ Apparently the school administrators who testified for the County had never encountered teachers or bus drivers abandoning their schoolchildren.

See Tr. 3167 (Smith), 3130, 3133, 3167-68 (Rossi), 3138, 3169, 3185-86 (Jeffers) . The closest they came to recalling an example was a single case of a bus driver who tended her own child first after an accident. Tr. 3166 (Smith) .

70/ Mr. Petrilak did not testify that teachers would abandon their roles, but that they would first attend to their families. Tr. 3098 (Petrilak). He also said that teachers generally have not abandoned their duties in the past. See, e.g. , Tr. 3004 (Petrilak) .

71/ The record shows that at TMi school teachers generally stayed at their posts during the early stages of the accident, Tr. 1348-49 (Erikson), 968 (Mileti); Cordaro et al., ff. Tr. 831, at 75-76. The Intervenors' witness tried to explain this on the ground that there were many " rumors" about the acci-dent at the time but no official advisory. Tr.1347-48 (Erikson) . But of course a situation in which there are rumors but no official information is pre-cisely the type of situation that would tend to make people fearful.

i t

. Having additional laymen say that they think so does not improve the record.72/

The evidence of opinion polis is no better. LILCO proved in this . case that opinion polls cannot be used to predict behavior in an actual emergency.

NRC case law agrees.73_/ And the particular polls ruled inadmissible by the Board were not even taken of people with a role in the Shoreham plan.74/

Finally, " role conflict" is just one (postulated) cause of absenteeism, .like illness and vacations. LERO is deliberately overstaffed to take care of absen-teeism. Cordar o et al. , ff. Tr. 831, at 28; Tr. 927-28, 934, 958,1143,'

1179-81 (Weismantle), 933-34 (Mileti) .7_5/

72/ Alternatively, the testimony could have been excluded because it was filed without any notice to LILCO. See LILCO's Motion to Strike or for Discov-ery and Rebuttal on the Testimony of Juanita Zuckerman, Joseph A. Staltzer, Ronald Posnack, Georgiana S. Fisher, Bruce R. Kagan, William F. Bantz, Lynn Capabianco, Anthony Fiorelli, Patricia Ann Liano, Marguerite De Santis, Lester-Kiehn, Howard Katzoff on Behalf of Suffolk County Regarding Emergency Plan-ning Contention 25.D, at 9-12 (Nov. 28,1983).

73/

Pacific Gas r, Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 f, 2), LBP-82-70,16 NRC 756, 768 (1982) ("We are not convinced that a scientific sociological survey of emergency workers to assess role conflicts would be of 4 value for emerge ~ncy planning"). The unreliability of interviews with school superintendents and others was discussed in Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-81-59,14 NRC 1211,1632-35 (1981).

7_4/ The superintendent of schools for the school district closest ' . the Shoreham plant, like other school administrators, had surveys showing that some school employees and bus drivers were not willing to drive a bus or'su-pervise students. Tr. 9542, 9543, 9546 (Doremus). But he had little faith in them, having learned that some teachers- had responded carelessly. Tr. 9551, 9553 (Doremus).

75/ Similarly, b'us companies have extra drivers. Tr. 9315 (Robinson) . In some school districts, teachers and other school employees are qualified to drive buses. Tr. 9315 (Cordaro) . And schools can cover for missing per-

. sonnel by consolidding classes and the like. Tr. 966 (Weismantle), 3158-59 (Jeffers); Consolidated Edison Co. (Indian Point, Unit Nos. 2 and 3),

(footnote continued)

. - , -- . - - . -- - - - - -, ,. - - - , + -

. E. Sheltering (Contention 61) (PID at 770-75; intervenors' Brief at 62-63)

Contention 61 asserts that sheltering in the Shoreham EPZ is an unworkable protective action recommendation because people sheltering "could still receive doses that would cause adverse health effects" in the event of a

" severe accident." The reason that the ASLB was correct in rejecting this contention is simply that even if one accepts Suffolk County's evidence com-pletely, it does not prove noncompliance with NRC regulations.

It is undisputed that the construction and types of residences on Long Island, =and.therefore their effectiveness as shelters from radiation, are typical of housing elsewhere.76/ PID at 773; Tr. 12,350-51 (Radford). Suffolk Coun-ty's witnesses used in their analyses the same shielding factors that LILCO uses. Tr.12,372,12,411-13 (Finlayson, Minor), 12,351 (Radford) (LILCO .

shielding factors seemed reasonable; Suffolk County has fairly typical eastern United States mix of housing). Moreover, Suffolk County's witnesses agreed that sheltering can reduce doses to the public, Tr. 12,333, 12,346 (Radford),

12,383,12,387 (Finlayson), and the County witnesses would not recommend eliminating sheltering as an option in the LILCO Plan, PID at 771; Tr.12,384 (Finlayson, Minor); see also Tr. 12,386 (Finlayson).

(continued from previous page)

LBP-83-68,18 NRC 811, 959 (1983); Metropolitan Edison Co. (Three Mile Is-land Nuclear Station, Unit No. 1), LBP-81-59,14 NRC 1211,1629 (1981) (many sources of back-up school bus drivers are available on short notice, e.g.,

teachers).

7y Contention 61 also complains that people in cars, boats, and outdoor rec-reation areas would not be protected by sheltering. This problem, which is the same for any emergency plan in the country, was adequately addressed by LILCO's evidence. See, e.g. , Cordaro et al. , ff. Tr. 8760, at 24-26.

Why, then, do the Intervenors continue to argue that sheltering is an

" inadequate" protective action? In essence, the Intervenors' thesis is this:

because sheltering will not necessarily protect people " adequately" (using the Intervenors' unstated definition of adequacy) in all conceivable serious acci-dents, it is inadequate. The analysis on which Suffolk County bases its case simply assumes a serious accident, Tr. 12,378,12,410-11 (Finlayson), assumes that people shelter for 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />, Tr.12,373 (Finlayson), and then calculates the probability of receiving various doses. See Tr. 12,389-93, 12,415-16 (Minor, Finlayson). Since in some serious accidents people would be advised to evacuate, not shelter, this analysis sheds little or no light on the issue.

There is no evidence that sheltering would be recommended but prove inade-quate in any particular accidenti. Suffolk County's evidence shows only that, if sheltering were the only protective action, it would be " inadequate" in some accidents. A moment's thought will reveal that the Intervenors' thesis is in-consistent with NRC regulations, which require a " range" of protective ac-tion s . If it were really a requirement that sheltering provide " adequate" pro-tection in every serious accident, there would be no need for evacuation--no need, that is, for a " range" of protective actions.

In a radiological accident, protective action recommendations would be made based on a complex variety of factors. Tr. 8803 (Cordaro), 8804 (Watts) . But the basic logic of the decisionmakers is this: projected radiation doses are calculated assuming no action, sheltering or evacuation, and the protective action is recommended that results in the lowest projected dose.

Thus, if the dose projection with sheltering is less than the dose projection ~ for evacuation (as it might be in the case of a fast-moving plume), then sheltering

s .

would be recommended (perhaps with relocation after the plume had passed).

Thus, sheltering is an option to be used whenever it would produce lower ra- s diation doses than the other options. Sheltering cannot be " inadequate" unless it can _never, under any circumstances, produce lower doses than the other available options. And no one claims that.

The ASLB erred, to be sure. But the error was in admitting Suffolk

~ County's testimony in the first place, since it is immaterial to the issue of whether NRC regulations are met.77/ And this is harmless error.

F. Evacuation (Contentions 65, 23.D, 22.H, 66, 67.C,

72. A, and 73.B.4) (PID at 781-827, C35-38; 849-53; Intervenors' Brief at 64-79)

The evacuation time estimates-for the automobile . owning public contained in Appendix A to the LILCO Plan were the subject of extensive testimony dur-ing the emergency planning. hearings. All parties to the hearings presented testimony, involving 18 witnesses, 9 days of hearings, and 12 pieces of written testimony. including several pieces of rebuttal testimony.78/ The ASLB spent 28 pages of its published PID -- more than on any other contention -- dis-cussing the facts and controversies on this issue before ultimately concluding that the evacuation time estimates contained in the LILCO Plan are reasonable.

Despite this thorough airing of all aspects of this issue, the Intervenors now argue that the ASLB excluded " key" evidence, disregarded other evidence, and lost sight of whether evacuation could be performed in a timely manner.

Intervenors' Brief at 64. ' These claims are meritless and should be rejected.

77/ See LILCO's Motion to Strike Portions of the " Group ll-B" Testimony of Suffolk County at 10-23 and Att.1, 2 (Mar. 27,1984).

78/ See PID at 782; LILCO's Proposed Findings at 191-92.

4

.. -56 .

1. .The ASLB Correctly Excluded the Finlayson Testimony on Contentions 23.D, 23.H, ~ and 65 The Intervenors assert that the testimony of Dr. Fred Finlayson was critical for determining whether the evacuation times reported in the LILCO Plan were " adequate,'I and that it therefore should not have been excluded.

The testimony presented calculations of the probabilities of receiving various doses of radiation from a range of severe accidents. As applied to the evacua-tion contentions, the testimony purported to show that evacuees trapped in the EPZ due to traffic congestion would likely receive " unacceptable health-threatening radiation doses." Intervenors' Brief at 64-65. The ASLB properly excluded this testimony as irrelevant to the issues posed by Contentions 23.D,

23. H, and 65.7_9/ It could have been excluded equally well on the basis that it was cumulative with cther testimony presented by him on protective actions, and that it really went only to the policy issue of how much protection ought to be required.by the Commission's regulations rather than to the actual circum-stances of Shoreham.

Contention 65 alleges that due to " deficiencies" alleged in subparts A-H, time estimates ~ for evacuation of the Shoreham 10-mile EPZ were grossly under-estimated by LILCO. By its Order of August 19, 1983, which the Intervenors do not challenge here, the ASLB admitted only the specific subparts of the 79/ The ASLB based its ruling solely on the testimony's irrelevance to the contention s. LILCO asserted that the testimony also should be stricken be-cause it challenged the Commission's emergency planning regulations and at-tempted to resurrect Phase I issues.that the intervenors had previously lost when they failed to participate in hearings. See LILCO's Motion to Strike the Testimony of Fred C. Finlayson, Gregory C. Minor and Edward P. Radford on Behalf of Suffolk County Regarding Contentions 65,. 23.D, and 23.H (Nov. 28, 1983).

.s contention for litigation and not .the broad' prefatory language that accompanied them. Special Prehearing Conference Order at 21-22 (Aug.19,1983). The

~ subparts 'do not mention health consequences; only the excluded preface does.

The subparts identify specific problems that allegedly increase evacuation times. The Finlayson testimony did not relate to any of these issues. It was of no probative value and thus patently irrelevant to Contention 65'. Accord-ingly, the ASLB was' justified in excluding it.

Similarly, Contentions 23.D and 23.H deal with the effects of voluntary evacuation on the' time estimates 'for evacuation of the EPZ. Contention 23.D alleges that voluntary evacuation in areas outside the EPZ would impede evacuees from the EPZ and lengthen evacuation times for. that group. Subpa rt

' H alleges that LILCO's EPZ perimeter controls are inadequate and that volun -

tary. evacuees from outside the EPZ would therefore be able to enter the EPZ.

In both of these subparts, the issue is the traffic effects of voluntary evacua-tion; they contain .only passing references to assumed health consequences to

. EPZ residents from certain accident scenarios. No fair reading-of these con-tentions supports the Intervenors' current argument that they. were designed to place substantive questions of health consequences in issue. The ASLB correctly ruled that the " health consequences" language was merely incidental to the main thrust of Contentions 23.D and H_, and that the Finlayson testimony was irrelevant to the real . questions at issue.80/

-80/ Admission of Dr. Finlayson's testimony in' connection with traffic issues

_would have also been, as a practical matter, cumulative. Dr. Finlayson's testi-mony on -Contention 61 (sheltering) was admitted. Finlayson et al., ff. Tr.

12,320. Throughout that testimony, Dr. Finlayson and Mr. Minor presented calculations of the probabilities of receiving certain doses as a result of a shel-(footnote continued)

. In a broader sense, admission of the Finlayson testimony in connection with litigation of issues relating to the validity of evacuation time estimates would serve no useful purpose. The testimony attempts to quantify the condi-

.tional probabilities of receiving certain radiation doses in certain severe acci-dent ~ sequences (i.e. , PRA conclusions) . The Intervenors tried to use these results to argue, in effect, that protective actions provided in the LILCO Plan are inadequate 81/ because under some accident conditions some people would be exposed to " unacceptable, health-threatening" radiation doses. But NRC emergecy planning regulations recognize that injuries will inevitably occur under certain accident scenarios, and that the goal o.f emergency planning is therefore to minimize dose.82/ As a result, there are no categorically " accept-able" or " unacceptable" doses or for that matter, evacuation times.Q/ Since (continued from previous page) tering recommendation. Part of that testimony specifically concerned the radi-ation doses that might be received by evacuees traveling in cars. Id. at 8-9.

During questioning, Dr. Finlayson discussed his own consequence analysis, al-ternative source terms, and various accident sequences. Tr.12,367-423 (Fi-nalyson). That testimony was strikingly similar to the testimony excluded from Contentions 65, 23.D, and H. Given this correspondence, the ASLB's earlier exclusion of that testimony can at worst only constitute harmless error.

81/ The purpose of this proceeding is to determine if the LILCO Plan is "ad-

_ equate" under the NRC's regulations, not in some broad amorphous sense that would require it to protect aj persons from al possible health consequences in aj conceivable accident scenarios.

M/ See, e.g. , Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLl-83-10,17 NRC 528, 533-35 (1983).

Moreover, Dr. Finlayson himself has stated that as accident severity increases, emergency planning goals become aimed more at avoiding deaths. Tr. 12,381 (Finlayson).

M/ Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),

ALAB-730,17 NRC 1057,1069 n.13 (1983); Cincinnati Gas r, Electric Co. (Wm.

H. Zimmer Nuclear Power Station, Unit 1), ALAB-727,17 NRC 760, 770 (1983);

see Manual of Protective' Action Guides and Protective Actions for Nuclear Inci-dents 1.1-1.2 (Rev.1980) .

. the Finlayson testimony merely. seeks to revisit these settled conceptual issues, it is ' irrelevant to a determination of whether the LILCO Plan satisfies NRC regulations.M/

2. The ASLB Did Not Reject Intervenors' Testimony Simply Because it Was " Qualitative" Intervenors next advance the novel argument that the ASLB improperly preferred " quantitative" testimony to " qualitative" testimony (Intervenors' Brief at 66-70), citing the testimony of Suffolk County witness Pigozzi (Inter-venors' Brief at 67-68 and 69 n.90) and of the Suffolk County Police Depart-ment (SCPD) witnesses (Intervenors' Brief at 68), and summarily asserting that it was rejected because it was not " quantitative." The Intervenors'

~

" quantitative / qualitative" distinction can be dismissed after evea a cursory re-view of the PID,'which reveals that the ASLB carefully considered all the tes-timony on evacuation time estimates, concluded that the testimony offered by LILCO and the NRC Staff was more probative than that offered by the Interve-nors, and explained in detail why it rejected the Intervenors' testimony. The Intervenors' " qualitative / quantitative" argument is based on mischaracterizations of the PID.

At the outset, it is helpful to review briefly why the ASLB concluded that thI Shoreham EPZ could be successfully evacuated within the times pres-ented in the LILCO Plan. See PID at 808. The ASLB began by properly recognizing that the accuracy of evacuation time estimates depends on the 84/ See LILCO's November 28, 1983 Motion to Strike for a full discussion of '

why the Finlayson testimony is inadmissible.

. assumptions that underlie them. The Intervenors focused their testimony on identifying allegedly faulty assumptions in LILCO's estimates and then qualita-tively describing how (but not how much) those assumptions might affect evac-uation time estimates.85/ See PID at 805. LILCO responded to those criticisms .

by challenging their factual validity, testing the sensitivity of the evacuation time estimates to changes in those assumptions, or both.86/ PID at 807-808.

After considering all this testimony, the ASLB concluded that LILCO's evacua-tion time estimates were neither " systematically ~ over- or underestimated." Id.

at 807. In addition, it found that the Shoreham roadway network possessed

" system stability" and that " time estimates are not disturbed greatly by rea-sonably foreseeable contingency or deviation from analytical assumptions." Id.

at 808.

The reason for this stability is simple. During much of the duration of an evacuation of the Shoreham_ EPZ, the physical roadway network is "saturat-ed" or capacity constrained -- i.e., there is an excess of automobiles over available highway space. This fact controls evacuation times since a h.ighway network can move only a theoretically limited number of vehicles within any given time interval. As a result, while an individual on a saturated network could be delayed at an intersection for any of a number of reasons, his delay 85/ While the intervenors presented their own time estimates for an evacua-tion which assumed substantial voluntary evacuation from outside the EPZ, or

" shadow effect," see Polk, ff. Tr. 2909, they made no effort to translate their concerns about LILCO's modeling assumptions into anything more than specula-tion .

86/ In all, LILCO performed 36 evacuation time estimates designed to test the sensitivity of those estimates to a variety of assumptions. LILCO Proposed Findings at 195-98.

l

. would not affect overall evacuation time estimates, 'since his place would rapid-ly be filled by other cars contending for space he would have occupied, and since once clear of his delay he could easily catch up with the slow-moving congested traffic downstream. Urbanik, ff. Tr. 3430, at 11. Thus, the ASLB did not discount Intervenors' testimony because it was " qualitative," but rath-er because the remainder of the testimony demonstrated that regardless of .the merits of Intervenors' claims they simply did not have a measurable effect on evacuation times.

The Intervenors' specific examples do not commend a different result.

For example, the Intervenors offer a variety of conclusory observations about Dr. Pigozzi's testimony and then criticize the ASLB for rejecting this testimony because it was not " quantitative." See Intervenors' Brief at 67-68.87/ The Intervenors have not identified any specific criticisms by Dr. Pigozzi that were not either rebutted directly by LILCO88/ or rebutted indirectly by sensitivity

'87/ The Intervenors also argue that the ASLB ignored Dr. Pigozzi's supple-mental testimony. Intervenors' Brief at 69 n.90. Since this argument is the same as that presented in Section Ill.F.3 of their brief, it will be discussed in that section below.

88/ For example, in the direct testimony of Dr. Pigozzi cited by Intervenors, Dr. Pigozzi argued that the equilibrium solution used in LILCO's modeling was inappropriate since it relied on drivers having gained knowledge from " normal" operating conditions that would not be applicable during an evacuation.

Pigozzi (Direct), ff. Tr. 2909, at 32-33. In rebuttal, LILCO witness Lieberman explained that the modeling was not based'on the assumption that people knew the fastest route out of the EPZ during an emergency because of prior driving experience, but rather on the assumption that when drivers are confronted with an unfamiliar emergency situation, they will follow directions -- directions that would be provided under the LILCO Plan. See Tr. 2479-80 (Lieberman). After reciting this testimony, the ASLB concluded:

The Board does not rely on Dr. Pigozzi's criticism of LILCO's equilibrium flow modeling because the forego-(footnote continued) l

-. runs showing that they would not have a measurable effect on evacuation times.89/ Thus, their criticism of the ASLB's decision is baseless.

The Intervenors also argue that the ASLB fixated on " sterile mathemati-cal analyses" and refused to consider the " practical, real-world conditions" de-scribed by the SCPD witnesses. See Intervenors' Brief at 68. The simple re-sponse to the Intervenors' argument is that they have selectively quoted from (continued from previous page) ing.shows that LlLCO has not made the assumptions of normal conditions he attributes to them concerning equilibrium models.

PID at 791.

89/ For example, Dr. Pigozzi spent considerable time arguing that LILCO's evacuation time estimates were based on the acs'imption that evacuees would strictly adhere to their routing assignments. See Pigozzi (Direct), ff. Tr.

2909, at 19. In response, and contrary to the suggestion of Intervenors, LILCO studied the effects of drivers' noncompliance with routing assignments.

See Cordaro et al. (Contention 65), ff. Tr. 2337, at 41-44 and Att.12. After a reviewing this testimony, the ASLB concluded the following:

The County and State witnesses did not fully confront the quantitative problem, but instead attempted to circumvent it by repeatedly postulating that success-ful. execution of the evacuation plan depends on rigid and undeviating compliance by all persons. See 1. F.

520. LILCO's evidence, however, shows that the evacuation plan is not as brittle as fine crystal but is in fact resilient and tolerant of reasonably foreseeable deviations from compliance.

PID at 794. Also, the ASLB specifically stated the following about Dr.

Pigozzi's testimony:

It ~is not credible to assert that LILCO assumed a rig-orous undeviating conformance of actual traffic to the conditions utilized in the model in the face of numer-ous sensitivity analyses demonstrating the opposite.

PID at 807.

w

[ .

the PID. The~ full text of the quotation reveals that the ASLB properly real-

-ized .that the SCPD testimony ' focused on evacuation from an individual's per-spective. . PID at 807. What the SCPD witnesses did not consider, and what is critical' on a capacity-constrained roadway network such as that during an evacuation of the Shoreham EPZ, is that the aggregate op3 ration of the road-way: network -- the relevant factor -- is basically unaffected by the varying circumstances of individuals. Id. Clearly, the ASLB did not reject the SCPD

. testimony simply because it was qualitative.90/

3. The ASLB Did Not Ignore Relevant and Probative

~ Evidence on Route Deviation Intervenors argue that- the ASLB's acceptance of LILCO's sensitivity.

studies 91/ on the effects of . drivers' deviation from assigned routes was im-proper bacause the ASLB allegedly ignored-the supplemental testimony of Dr.

Pigozzi on the same subject without explanation.92/ Intervenors' Brief at.

90/ The Intervenors also argue that the ASLB improperly shifted the burden of proof onto them to quantify the inaccuracy of LILCO's evacuation time esti-mates. Intervenors' Brief at 69-70. . No such shift occurred. Instead, in comparing the evidence ~ offered by intervenors (speculative claims that the

- time estimates were inaccurate) against that offered by LILCO (sensitivity .

studies that demonstmted those changes do not affect evacuation times), the ASLB' simply concluded that LILCO's evidence was entitled to greater weight, and accordingly, found in LILCO's favor. PID at 805-09.

9_1,/ .The results of these sensitivity studies were reported by KLD Associates for LILCO in KLD TM-140. See Cordaro et al. (Contention 65), ff. Tr. 2337, at Att. ~12.

-92/ Intervenors contend, as the ASLB noted explicitly (PID at 790), that r ute deviation "must be expected for several reasons." !ntervenors' Brief at '

~

-70 n.92 (emphasis supplied). What Intervenors unaccountably do not acknowl-edge is that LILCO presented. testimony that questioned the validity and effect of each such " reason." Cordaro et a_l. l (Contention 65), ff. Tr, 2337, at 65-66; (footnote continued)

r j 64-70-71. A review of the ' record and the ASLB's decision reveals that Interve-nors are mistaken, and that the ASLB adequately articulated why it accepted LlLCO's sensitivity studies and rejected Dr. Pigozzi's criticisms of them.

The supplemental testimony of Dr. Pigozzi. raised two general concerns about LILCO's sensitivity studies of driver noncompli.ance:93/ first, that the modeling runs did not provide enough alternative routes for evacuees, and second, that the runs were flawed because they did not model drivers antici-patinn blockages and thus taking alternate routes. Pigozzi (Supp.), ff. Tr.

2909, at 11-14. In response, LILCO's witnesses explained that the number of alternate routes was limited by considerations of the proximity of the.EPZ boundary and of avoiding circuitous routes. Cordaro et al. (Contention 65),

ff. Tr. 2337, Att.12, at 2. In addition, they pointed out that adding further alternate routings would not significantly affect evacuation times since there is a finite number of paths out of the EPZ and deviations from assigned paths (continued from previous page)

LILCO Proposed Findings at HH466-68. Nor do they report that the Board con-ciuded that:

The Board accepts Suffolk County's and the State's views that some instances of behavior cited in the contention are _ possible. However, that is not enough to conclude that the Plan will be unacceptably de-graded or will fail, because we do not deal with an all-or-nothing problem in these contentions.

PID at 794 (emphasis supplied).

93/ As with Dr. .Pigozzi's direct testimony, these concerns were nothing

_more than general assertions. No effort was made to give the specific details of how a sensitivity study should, in Dr. Pigozzi's opinion, have been run, nor did Dr. Pigozzi attempt in any respect to quantify how his concerns would affect evacuation time estimates.

.. merely tend eventually to result in trade-offs among those evacuation paths.

LILCO Proposed Findings at 1454.94/ Finally, LILCO's witnesses showed that anticipato.ry deviations had been compensated for in two ways by modeling:

first, by assigning alternative destinations, and second, by including a queue adjustment feature that' allowed evacuees to deviate from their routes if con-

.gestion blocked their path. See LILCO Reply Findings at 1527.

In the PID, the ASLB expressly noted that tradeoffs would occur among alternative routes, PID at 792; that the northwest section of the EPZ, which controls evacuation time estimates, has few viable alternative routes, & at 792-93; and that as a result, evacuation time estimates are relatively insensi-tive to route deviation, & at 794-95. In addition, the ASLB expressed dis-satisfaction with the failure of Dr. Pigozzi's testimony, especially given his qualifications as a mathematical modeler, to identify with any degree of objec-tivity or utility any errors that may have actually resided in LILCO's time esti-mates. PID at 806-07.

Clearly, the ASLB provided an adequate explanation for its rejection of Dr. Pigozzi's supplemental testimony. This Appeal Board has long recognized that while licensing boards have a " duty not only to resolve contested issues but 'to articulate in reasonable detail the basis' for the course of action cho-sen,"95/ there are limits on this duty.

Indeed, this Appeal Board has 94/ This is particularly true in the densely populated, evacuation time-limiting northwest portion of the EPZ, where there are relatively few viable routes to choose from. Cordaro et al. (Contention 65), ff. Tr. 2337, at 70-71.

95/ Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),

AL'AB-422, 6 NRC 33, 41 (1977), citing Northern States Power Co. (Prai'r ie is-land Nuclear Generating Plant, Units 1 and 2), ALAB-104, 6 AEC 179 (1973).

. previously found that "a decision need not refer individually to every proposed finding; it meets the requirements of the Administrative Procedure Act and the

~

Commission's Rules of Practice if it sufficiently informs a party of the disposi-

-tion of its contentions." Id. The ASLB has done just that in this case.

4. The ASLB Did Not Err in Rejecting the Intervenors' Evacuation Time Estimates Th'a Intervenors contend that the ASLB was unjustified in rejecting the evacuation time estimates _ prepared for Suffolk County by PRC Voorhees. In-tervenors' Brief at 72-75. The Intervenors portrayed the PRC analyses as yielding EPZ evacuation time estimates of about 17 hours1.967593e-4 days <br />0.00472 hours <br />2.810847e-5 weeks <br />6.4685e-6 months <br /> in the summer and -11 hours in the. winter for an evacuation directed entirely to the west of the EPZ.

Polk, ff. Tr.l 2909, at 5 and Att. 3. This contrasted with a range of estimates developed by LlLCO of between approximately 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> 55 minutes and 7 hours8.101852e-5 days <br />0.00194 hours <br />1.157407e-5 weeks <br />2.6635e-6 months <br /> 35 minutes, depending on circumstances (amount of voluntary evacuation as-sumed, availability of traffic control measures, . degree of deviation from pre--

scribed . routes ) . Cordaro et al.

l (Contention 65), ff. Tr. 2337, at Att. 6 (re-produced in ~ LILCO Proposed Findings at H429, Table 1). This portrayal turned out to be significantly misleading in two respects. First, the evacuating population evaluated by PRC Voorhees included not just the EPZ population, but also 63o of the' people living in the increasingly populous area out to 10 miles beyond the western edge of the EPZ, plus more than half the residents living east of the EPZ -- some of whom live as much as 50 miles from the Shoreham plant.96/ LILCO Proposed Findings at H478; Cordaro et al.

96/

The Intervenors argue that the ASLB dismiued their estimate because it was derived from " extreme assumptions about human behavior." Intervenors' i (footnote continued)

. (Contention 65, Supp.), ff. Tr. 2337, at 13. In addition, all evacuees-were assigned to one of only four major evacuation paths,.1, thus failing to make full use of the available highway network.

The second misleading aspect of the PRC Voorhees study involved the significance of PRC's actual time estimates. The PRC analyses, including un-derlying computer runs, were studied in detail by LILCO witness Lieberman.

He determined,= and testified without contradiction,- that the lengthy evacuation times calculated by PRC Voorhees consisted solely of queues along the rim of the EPZ -- along Sunrise Highway and at the intersection of the Long Island Expressway (LIE) and Horse Block Road at the extreme southwest boundary of the EPZ. They did not involve evacuees within the EPZ. Cordaro et al. (Con ,

tention 65, Supp.), ff. Tr. 2337, at 14-15. Further, as Mr. Lieberman's anal-ysis showed, the traffic involved in these apparently long queues along the rim consisted entirely of voluntary evacuees from the East End, outside the epi.,

who never entered the EPZ. Id. at 15.97/ Mr. Lieberman's analysis of PRC's computer printouts also enabled him to discern the evacuation time PRC would have developed had it focused on the time needed for EPZ residents to actually (continued from previous page)

Brief at' 73. Any fair reading of the ASLB's decision reveals it is not as one-dimensional as Intervenors characterize it. While the ASLB justifiably viewed PRC's voluntary evacuation assumptions as extreme, PID at 656, 669-71, it based its decision on a multitude of factors which included the way Suffolk County attempted to use the PRC model and the assumptions in developing its estimates. See PID at 802-04. .

97/ Mr. Lieberman also demonstrated that the PRC Voorhees-modeled con-giestion at the intersection of the LIE and Horse Block Road (which is just out-side the western boundary of the EPZ) was caused by the arbitrary and unexplained importation of traffic from more than 2.5 miles south of the EPZ boundary to its very edge. Id. at 15.

s

- evacuate the EPZ, notwithstanding the perimeter congestion induced by spon-taneous evacuation from outside the EPZ. His resulting 7 hour8.101852e-5 days <br />0.00194 hours <br />1.157407e-5 weeks <br />2.6635e-6 months <br /> 30 minute esti-mate -- again, not disputed by the Intervenors -- was virtually identical to in-dependent evacuation time estimates derived by LILCO using the same assumptions. PID at 802; Cordaro et al. (Contention 65, Supp.), ff. Tr.

2337, at 19-23.98/

Thus, the question that was before the ASLB, and is again before this Board in deciding whether Suffolk County's evacuation time estimates rather than LILCO's should have been accepted, is whether .EPZ evacuation time esti- ,

mates, and hence protective action decisions, should be pegged on the time it takes voluntary evacuees who start outside the EPZ and never enter it to fin-ish skirting its edge, or on the time it takes those directly affected -- EPZ residents -- to leave it under varying conditions. The ASLB, like LILCO, chose the latter and concluded that basing time estimates on the assumed be-havior of volunteer evacuees from beyond the EPZ, rather than on that of EPZ evacuees, "would cause a gross distortion of evacuation time estimates which could not adequately ensure protection of the health and safety of persons within the EPZ." PID at 803. The ASLB reached the only appropriate conclu-sion, and one amply supported by the record.99/

98/ When questioned about Mr. Lieberman's analysis of the PRC cata during

_the hearings, Suffolk ' County's expert witness, Mr. Polk, adrntted that it was correct. See Tr. 3375-78 (Polk) .

9_9/ Intervenors argue that the ASLB should have included the Sunrise High-way in the Shoreham EPZ. Intervenors' Brief at 74. In support, they claim the highway runs along the southern edge of the EPZ and that it serves as an evacuation route for individuals living outside the EPZ to the east. Id. Fu r-ther, they contend that voluntary evacuees could possibly be affected if an (footnote continued)

s 5. The ASLB Did Not Err in its Consideration of the -

SCPD Testimony The Intervenors next argue that the ASLB did not "give appropriate weight" to the testimony of SCPD witnesses.100/ Intervenors' Brief at 75. In large measure, the Intervenors' argument merely restates their earlier '_'quali-tative/quantative" argument under a different rubric. As discussed in subsection 2 above, the ASLB was sensitive to the tension between the SCPD's

" practical" arguments and the broader " traffic engineering" arguments pres-ented by LILCO. .The PID demonstrates that the ASLB clearly understood each of these arguments, and resolved them in the only correct way possible. See PID at 805-07. The ASLB did not commit reversible error.

The Intervenors also attack the testimony of NRC Staff witness, Dr. Ur-banik, and the ASLB's acceptance of any part of his testimony. Contrary to the Intervenors' assertion, Dr. Urbanik's qualifications as a traffic engineer for reviewing evacuation plans are unparalleled. Dr. Urbanik has either (continued from previous page) extremely severe accident occurred at Shoreham. Id. Intervenors' arguments represent yet another attempt to expand the 10-mile planning zone. The Sun-rise Highway is already more than 10 miles from the Shoreham plant, and the persons Intervenors now seek to protect are hypothetical voluntary evacuees from outside the' EPZ, who never enter it. Cordaro et al. (Contention 65, Supp. ), ff. Tr. 2337, at 15,17-19, Att. 2. The ASLB properly rejected the Intervenors' arguments.

100/ While the Intervenors make a similar claim about the testimony of New York State witnesses, they do no more than simply recite the claim in passing (Intervenors' Brief at 75); they never cite specific aspects of these witnesses' testimony which they believe were given inappropriate weight. Thus, their claim with regard to these witnesses fails to meet the requirements of 10 C.F.R. S 2.762(d)(1).

+

5

.. 1 .

authored or assisted in the development of the NRC documents that serve as the guide for preparing the traffic portion of emergency plans. See Urbanik, ff. Tr. 3430, at 2. In addition, Dr. Urbanik has reviewed, as a contractor for the NRC, the evacuation time estimates for 52 nuclear plants in this country.

Id.101/

e

6. The ASLB Did Not Commit Any of 'the Miscellaneous Errors Alleged by the Intervenors Finally, Intervenors list five additional areas where they argue the ASLB committed "significant errors." Intervenors' Brief at 77-79. These allegations are either assertions that this Board should reverse the ASLB and accept the Intervenors' testimony without regard to that of any other party, or are mischaracterizations of the ASLB's conclusions.

- First, the intervenors argue that the ASLB accepted, "without any anal-ysis," LILCO's estimate of the number of accidents likely to occur during an evacuation . On this issue, the evidence could not be clearer: the ASLB re-jected the In~tervenors' estimate of the number of. accidents that could be ex-pected to occur during an evacuation because that estimate was based on a clear misinterpretation of engineering data. PID at 795-96.

Second, Intervenors argue that the ASLB dismissed its contention on

, cars running out of gas "without discussion." Intervenors' Brief at 78. This argument ignores the bulk of the ASLB's reasoning on this issue. In the PID, 1

101/ Further, contrary to intervenors' claim, see Intervenors' Brief at 77, Dr. Urbanik does have experience in directing traffic. Dr. Urbanik testified that he had directed traffic outside Michigan Stadium in Ann Arbor after foot-ball games where more than 100,000 fans had been in attendance. Tr. 3545 (Urbanik).

the ASLB notes that the LILCO Plan calls for the use of seven fuel trucks each having a capacity sufficient to service 400 cars.102/ PID at 816. The ASLB also concluded that LILCO had considered the appropriate factors in locating fuel trucks. Finally, the ASLB agreed with FEMA witnesses that a fuel distri-bution plan was not required in any event by any NRC regulation or guideline.

PID at 816. Thus, the ASLB did not cursorily dismiss the Intervenors' con-tention.

Third, the Intervenors argue that the ASLB ignored testimony on the lack of training of LERO's traffic guides and on aggressive behavior that mo-torists.could be expected to exhibit toward traffic guides. Intervenors' Brief at 78. The training of LERO's traffic guides, as well as the behavior of motor-ists, was the subject of extensive testimony during the litigation of the training contentions. The training of LERO traffic guides included classroom training as well as eight days of field training. PID at 749. This training was conducted by Dr. Harry Babb, a former Suffolk~ County police officer who had previously taught traffic direction to SCPD recruits at the Suffolk County Po-lice Academy. Babb e_t a_1. , ff. Tr. 11,140, at 2-3; Tr. 11,142-43 ( Babb) .

Dr. Babb testified that the training given LERO workers made them as pre-pared to direct traffic as Suffolk County police officers. PID at 749.

The ASLB also eJdressed the Suffolk County testimony on aggressive behavior. Contrary to the implication of Intervenors' brief, extensive 102/ Even if one accepts the Intervenors' estimate of 277 cars running out of gas -- indeed, testimony presented by LILCO argued that this value was overstated and should instead have been 96, Cordaro et al. (Contention 65, Supp.), ff. Tr. 2237, at' 29-31 -- each truck would still be able to service more than the total number of cars expected to run out of gas during an evac-uation.

m ,

, evidence was presented by .LILCO and the NRC Staff to show that people do not exhibit aggressive behavior during emergencies. See LILCO Proposed Findings at V450. The ASLB chose to accept this latter, documented testimony because it concluded on balance that "[i)n community emergencies people be-come more helpful to one another, not more aggressive." PID at 794.

Fourth, the Intervenors argue that the LILCO Plan violates NUREG-0654 ll.J.10.k. because LILCO does not have agreements for snow removal. The intervenors' argument ignores the record including the testimony of the New York State witness. The testimony on snow removal was straightforward: if an emergency occurs when roads are impassable, the protective action recommen-dation will be to shelter. PID at 815. The presence or absence of snow re-moval agreements will not change this recommendation. If roads are passable but snow-covered, adverse weather evacuation time estimates will be consid-ered in making protective action recommendations. Id. If evacuation is or-dered, all witnesses agreed that continued plowing of snow would impede, rather than aid, traffic flow. Id. at 814. However, governmental entities would continue snow removal activities, with or without agreements, until evacuation is ordered, ii Thus the Board correctly found formal snow remov-al agreements unnecessary.

Finally, the Intervenors, in passing, argue that because the ASLB alleg-edly erred with regard to Contentions 23, 65, 66, it also erred with regard to Contentions 67.C, 72. A, and 73. B.4. This argument is simply another attempt by Intervenors to suggest that emergency planning is like a house of cards: if one card slips the.whole house falls. In any event, the Intervenors have of-fered no rationale for their claim, hence it must fail under the requirements of 10 C. F. R. S 2.762(d)(1) .

.. . G. Insufficient Number of Buses for Evacuation of the Non-Automobile Owning Public (Contention 24.F.2) (PID at 817-27; intervenors' Brief at 79-82)

The Intervenors contend that the ASLB erred in concluding that the Plan provided a sufficient number of buses to evacuate the transpor-tation-dependent population. Intervenors' Brief at 79-82. The Intervenors' argument rests on a single, extreme h'ypothetical accident -- an accident which causes an immediate. General Emergency 103/ requiring the evacuation of the entire EPZ, and unfortuitously occuring during the middle of a school day --

and a set of faulty factual inferences selectively culled from the record.

Accordingly, the ASLB's rejection of the Intervenors' arguments should be sustained.

The Intervenors begin by correctly noting that of the 1,236 buses com-mitted to LILCO by letters of agreement, 298 are free of any prior commitments to Long Island school districts.104/ The Intervenors also correctly note. that 333 buses are required to evacuate the transit-dependent population. But be-yond these simple values, the Intervenors' interpretation of the ASLB's deci-sion and the facts which support that decision is incorrect.

103/ There are four classes of Emergency Action Levels: Unusual Event, Alert, Site Area Emergency, and General Emergency. NUREG-0654, Appendix

1. An accident which immediately requires the highest emergency classification

-- a General Emergency -- is an extremely remote event. See id. at 7.

104/ The intervenors' attempt to suggest in footnote 104 of their brief that this value of 298 buses is a likely- overstatement, given the recent addition of several schools to the EPZ, is nothing more than incorrect post hoc specula-tion . The fact that 298 buses are free of prior contractual agreements to school districts means exactly that. These buses have not been previously committed to any school district, either within the EPZ or outside it. Thus, the addition of more schools to the EPZ does not affect this number.

The Intervenors first suggest,that since the supply of buses without p'rior contractual commitments (298). is less than the transit-dependent demand (333), the Plan must fail. See Intervenors' Brief at 80. In support, they cite the " unequivocal" testimony of FEMA witnesses. Id. On this point, the testi-mony of FEMA witnesses is hardly unequivocal; those witnesses refused to con-cur with the Intervenors' simple mathematical comparison. Rather, they testified that any prior commitments would need to be examined to determine whether they actually impeded the timely evacuation of the EPZ. Tr. 12,222-28 (Kowieski, Baldwin, McIntire); see also Tr. 12,796-99 (Keller).

Three sensitivity studies were performed by LILCO to determine whether

~

preexisting contractual obligations would delay the evacuation of the transit-dependent population. For each study, it was conservatively assumed that the hypothetical accident would cause an immediate General Emergency.105/ In the first case, it was further assumed that the entire 10-mile EPZ would be evacu-ated and that school administrators in school districts outside the EPZ would release their buses from their prior commitments; in the second case, a full 5-mile evacuation was hypothesized with no help from school administrators out-side the EPZ; and in the third case, a 10-mile evacuation and no help from school administrators was assumed. Tr. 8135-36 (Lieberman). Only in the last, most extreme case was it shown that the bu's schedules could not be com-pleted as detailed in the Plan. Tr. 8136 (Lieberman). Even in that case, 105/ if an accident progressed in a more typical manner through the four emergency classification levels, school children would be returned home at the Alert stage. Thus, at a later time, if a General Emergency occurred and an order to evacuate was given, large numbers of buses would no longer be sub-ject to prior contractual agreements with school districts and bus schedules could be completed as planned.

where uncontrolled evacuation time estimates would apply (see Tr. 8118-19 (Lieberman)), delays in bus schedules would not result in incorrect protective action recommendations. Tr. 8116-19 (Weismantle, Lieberman) .

Thus, the ASLB correctly found Contention 24.F.2 to be without merit.

PID at 827. Contrary to the Intervenors' suggestion, the ASLB did not base this decision on " pure speculation or wishful thinking."106/ Instead, the deci-sion rests on a detailed factual record.107/ See PID at 827.

10G/ The Intervenors seek to seize on predictive langua'ge used by the ASLB to argue that the decision was based solely on speculation. See Intervenors' Brief at 80. This claim is meritiess. First, buses will become available follow-ing their school rounds, since these school responsibilities can be completed far more quickly than the five hours needed to evacuate the EPZ. Second, basic human nature suggests that people will help in an emergency. Tr. 870-71 (Dynes); LILCO Proposed Findings at W47. It follows that school adminis-trators in school districts outside the EPZ would release their buses in the event of an actual emergency. Finally, as unrebutted testimony in the record shows, bus companies have additional buses which have not been committed to LILCO or school districts. Tr. 9991 (Robinson).

The decision in Cincinnati Gas' r, Electric Co. (W.H. Zimmer Nuclear Power Station, Unit No.1), ALAB-727,17 NRC 760 (1983) does not, contrary to the intervenors' bold assertion, Intervenors' Brief at 81, dictate a contrary result. There, the licensee merely asserted that it was making efforts to ob-tain buses from other school districts. See id. at 773. Here, the record re-veals a large excess of buses under contract--- almost 300 of which have no prior contractual obligations -- and detailed studies which show that only under one absolutely extreme set of assumptions would evacuation of the transit-dependent population be delayed. Clearly, the ASLB's finding on this issue has a rational basis.

107/ The Intervenors also claim that the ASLB erred in discounting the testi-

. mony of New York State witness Failla. Intervenors' Brief at 81. They offer no real support for this argument. Instead, they ask this Board to sanction their excessively narrow reading of all letters of agreement, though even wit-ness Failla agreed that numerous bus companies are often owned by a single individual, Tr. 9975 (Failla); see PID at 826-27.

H. Mobilization of Emergency Workers (Contention 27) (PID at 716-25; Intervenors' Brief at 82-84)

The Intervenors' argument on Contention 27 can be distilled into a single thesis: unless an emergency response force can be shown to be able to re-spond in an identical manner to aj accident scenarios, an emergency plan fails to meet the reasonable assurance requirements of 10 C.F.R. S 50.47(a)(1).

See Intervenors' Brief at 82-84. As with its earlier argument on the availabili-ty of buses to transport the transit-dependent population (see Section Ill.G.

supra), the Intervenors' argument rests on one extreme, remote accident sce-nario -- a very fast-breaking accident that requires evacuation notices to be given less than.one hour after the initiating event for the accident has oc-curred. The Intervenors cite three presumably legal bases for their position:

(1) this Appeal Board's recent ruling in ALAB-818, (2) the ASLB's refusal to consider health consequences in deciding whether the mobilization of LERO was timely, and (3) the provisions of NUREG-0654 li.E.2, ll.F.1.e. and II.H.4.

intervenors' Brief at 83-84. None of these bases supports reversal of the ASLB's decision on Contention 27.

As originally drafted, Contention 27 contained a variety of allegations which were reputed to impede the prompt mobilization of LERO workers. These allegations included the distance that emergency workers would need to travel

~

to their initial reporting locations, the congestion they would allegedly encoun-ter on those trips, the briefings and other activities that must be conducted at reporting locations, the additional trips that must be taken to actual duty posts, and finally, the fact that many LERO workers are not called to report until the' site or general emergency levels. See PID at 716. In response to

these contentions, LILCO presented extensive testimony on the steps it had taken to minimize the completion times of each step. These actions included minimizing travel distances by basing staging area assignments on the location of LERO workers' homes, ordering callout lists to permit workers living closest to a staging area to be called first, streamlining staging area operations by having key personnel report at the Alert stage, prepackaging information packets for.each job function, modifying staging center operations as a result of lessons learned in drills and exercises, and developing detailed checklists to ensure that the closest available emergency vehicles were always used. See PID at 717-19; LILCO Proposed Findings at 88-94. Based on this testimony, the ASLB concluded that "LILCO has taken practical and reasonable steps to minimize the mobilization times for LERO workers." PID at 724. The interve-nors do not challenge that finding on appeal, nor do they suggest that further minimization is possible.

Instead, the Intervenors argue that the three hours needed to complete the total mobilization of LERO precludes total response in a small set of fast-breaking accidents. The Intervenors first contend that since traffic guides cannot reach their posts to direct traffic in a fast-breaking accident, the Plan is deficient under this Board's rationale in ALAB-818.108/ They are incorrect.

In ALAB-818, this Board held that the total absence of traffic guidance under all evacuation scenarios was not in keeping with emergency planning require-ments of S 50.47.109/ ~The decision does not stand for the proposition that the 108/ Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

ALAB-818 (Oct. 18, 1985).

109/ See & at 41-43.

-,m

• ' inability to mobilize traffic guides effectively during extremely fast-breaking accidents automatically indicates that the requirements of S 50.47 have not been met. Indeed, licensing boards have long recognized that no emergency plan is completely effective in responding to certain types of fast-breaking events.110/ Here, the ASLB found that LILCO had taken all- possible steps to minimize mobilization times. The ASLB refused to require the impossible and essentially require a response organization to be on continuous alert to re .

spond instantly in case .of any emergency. PID at 725. There is no such re-quirement in the NRC regulations, nor for that matter has any similar require-ment ever been imposed at another nuclear plant.

Next, the Intervenors contend that the ASLB erred in not considering the health effects associated with LERO's less than complete mobilization in a hypothetical fast-breaking accident. This argument is nothing more than an-other attempt by Intervenors to raise essentially PRA-related issues and to challenge fundamental emergency planning principles. In this case, LILCO has demonstrated, and the ASLB has accepted, that the result of a failure to mobi-liza a ' substantial part of LERO before an evacuation begins is to increase total evacuation times by up to 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> 30 minutes. PID at 724. The ASLB found this increase acceptable. PID at 725. Since the Plan has been modified to uti-lize these lengthened evacuation times in making protective action recommenda-tions for fast-breaking accidents, population doses will still be minimized.

Cordaro et al. , ff. Tr. 7043, at 26-27.

110/ See Consumers Power Co. (Big Rock Point Plant), LBP-83-44,18 NRC _

201, 207 (1983); see also Union Electric Co. (Callaway Plant, Unit 1), LBP ~

71,18 N RC 1105,1111-12 (1983) .

79 Finally, the Intervenors cite NUREG-0654 as support for their argument, but the sections cited simply require procedures for alerting, notifying, and mobilizing emergency response personnel (ll.E.2), a communication plan for alerting response personnel (ll.F.1.e), and the " timely activation and staffing of [ emergency] facilities"' (ll .H.4) . They do not require the same ideal re-sponse in all evacuation scenarios.

1. Notification of Emergency Personnel and the Public (Contentions 26, 24.T, and 55-59) (PID at 707-16, 757-63: Intervenors' Brief at 84-87)

1. Initial Notification of Offsite Authorities is Accomplished by Notifying the CSO 111/-

The ASLB concluded that LILCO satisfied the requirements of 10 C.F.R. Part 50, App. E, IV.D.3, by providing for initial notification from the plant to LILCO's Customer Service Operator (CSO) within 15 minutes of the declaration of an emergency. The Intervenors argue that the ASLB misinterpreted those requirements, maintaining that "the 15 minute requirement is to assure prompt notification of key emergency responders", Intervenors' Brief at 86, whom they identify as seven key emergency workers under the LILCO Plan.112/

111/ Any argument that initial notification from the Shoreham plant to offsite authorities is faulty should be dismissed as law of the case. The identical issue of initial notification was raised between the same parties in Contention

.EP 1.1 and was resolved in LILCO's favor.as a sanction for the Suffolk County's refusal to comply with the ASLB's orders in Phase I of the emergency planning p roceeding . Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-115,16 NRC 1923 (1982); Shoreham, LBP-82-75,16 NRC 986,1026 (1982) (text of' EP -11) .

112/ The Intervenors also argue that the ASLB misinterpreted their testimo-ny. Suffolk County's testimony was confused at best. At various times Suffolk County's witnesses opined that initial communications with LERO would (footnote continued)

As the ASLB correctly concluded, the regulations governing initial noti-fication do not place specific time limits on the notification of emergency workers. PID at 708. Section 50.47(b)(5) provides that prompt notification of state and local response organizations and of emergency personnel is neces-sary, but contains no requirement for notification within 15 minutes, in com-parison, Appendix E, IV.D.3 states that a " licensee shall have the capability to notify responsible State and local governmental agencies within 15 minutes

-after declaring an emergency." 10 C. F. R. Part 50, App. E, IV. D.3. The more stringent 15 minute notification requirement added by Appendix E applies only to the notification of offsite authorities; notification of emergency person-nel must be prompt, but need not meet the 15 minute initial notification re-quirement.

Under the LILCO Plan, the point for receipt of notification for the offsite authority is the CSO. As the ASLB held, initial notification to the offsite au-thority is accomplished when the CSO is notified. There is no basis in law or fact for differentiating the LILCO Plan from other emergency response plans where initial notification to offsite authorities is accomplished when the emer-gency preparedness center or police communications center is contacted.

(continued from previous page) not be complete until all 800 workers and all non-LILCO emergency organiza-tions were notified,. Tr. 4456-58 (Snow); until at least 142 persons having pagers were notified, Tr. 4471-72 (Snow, Stiles, Regensberg); and until ev-erybody who would be involved in the emergency response had been notified,

' however many that might be, Tr. 4456-58 (Snow) . In any event, the number of persons who must be notified is not relevant since the regulations and guidelines do not require that the 15 minute initial notification include notifica-

. tion of any emergency workers.

e

. Finally, the Intervenors urge reversal of all subparts of Contention 26 and Contention 55, claiming that the ASLB's decision on the 15 minute initial notification requirement is the linchpin for its other findings. This argument is utterly without merit. First, the resolution of all issues raised by the subparts of Contention 26 and Contention 55 does not depend on the ASLB's interpretation of the notification requirement.113/ Second, the Intervenors have not specified alleged errors in the ASLB's decision on the other issues raised by these contentions and thus have waived their arguments on these is-sues.114/

113/ A review of the other contentions makes clear that they raise separate issues from that of the 15 minute initial notification. In addition to the initial notification ~ requirement, Contention 26~. A also addresses whether personnel at other CSO locations provide adequate backup. . Contention 26.C addresses whether the pagers and the automated verification system are adequate to alert, notify, and mobilize personnel. Contention 26.D addresses whether the telephone cascade system can effectively notify non-key emergency personnel.

Contention 26.E deals with the notification of non-LILCO organizations. Con-tention 55 states that a delay in contacting key personnel will delay ~ activation of the sirens. The ASLB dealt with this contention in the alternative, finding first that, based on its determination that the 15 minute notification require-ment was met, any delay in notifying key personnel would not appreciably delay activation of the sirens and second, that even if key personnel could not be reached, the sirens would be activated within 15 minutes by the CSO. PID at 757.

114/ The Commission's -Rules of Practice provide that "[an] appellant's brief must clearly identify the errors .of fact or law that are the , subject of the ap-peal. For each issue appealed, the precise portion of the record relied upon in support of the assertion of error must also be provided." 10 C.F.R. 2.762(d)(1); see also Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-802, 21 NRC 490, 496 n.30 (1985); Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),

ALAB-461, 7 NRC 313, 315 (1978) (and cases cited therein); Duke Power Co.

(Catawba Nuclear Sation, Units 1 and 2), ALAB-355, 4 NRC 397 (1976).

. '82-

2. Route Alert Drivers Need Not Meet Public Notification Time Limitations The ASLB correctly concluded that NUREG-0654 does not require a backup notification system to the prompt notification system.115/ Therefore, the ASLB held that if backup procedures are provided, no time limit need be met. PID at 759; see also Kansas Gas r, Electric Co. (Wolf Creek Generating Station, Unit No.1), LBP-84-26, 20 NRC 53, 67 (1984). The intervenors' ar-guments for reversal ignore the legal foundation of the ASLB's decision and focus on factual arguments.

The Intervenors attempt to cloud the issue in Contention 56 by claiming that route alert drivers must meet time limitations and that the ASLB must find the system to be practical and workable. Under the LILCO Plan, route alert drivers provide a backup to the primary prompt notification system. OPIP 3.3.4; Tr. 4979, 4994 (Renz). Since the prompt notification system has the capability to complete initial notification within about 15 minutes, the LILCO Plan complies with the regulations.and guidelines for prompt notification of the public. See Cordaro et al. , ff. Tr. 4842, at 12; Tr. 5005,- 5015 (Hobbs) . A backup notification system is not required at all; therefore, the route alert drivers need not meet any time limitation nor must the ASLB find that route alerting is practical or workable. The ASLB did find, however, that the route alerting proposal was a worthwhile and desirable addition to the requirements and commended LILCO's planners for using route alert drivers. PID at 759.

115/ Section B.2 of Appendix 3 of NUREG-0654,10 C.F.R. S 50.47(b)(5),

and 10 C.F.R. Appendix E, IV.D, the sections of the re'gulations and guidelines governing public notification, do not allude'to any requirement for a backup notification system.

. 3. The LILCO Plan. Adequately Provides for Notification of Boaters The ASLB found that th~e p-imary method for notification of the public on Long Island' Sound by marine ~ band radio satisfies the requirement of NUREG-0654, App. 3, Section B.2.c. , at 3.3.116/ The Intervenors again at-tempt to blur the distinction between a primary notification system and a back-up notification system by focusing on the length of time it would take to com-plete notification of boaters by direct contact with Coast Guard boats--the proposed backup notification method. As noted above, backup to the primary i

notification system' is not required by the regulations or guidelines and, there-fore, the proposed backup system of direct contact by Coast Guard boats or by helicopter need not meet a time limitation. See PID at 759, 762-63.

J. Communications (Contentions 24.L and 28-34)

(PID at 725-44; intervenors' Brief at 87-91)

The Intervenors raise two general objections to the ASLB's decision on the communications contentions 117/: (1) the ASLB " ignored the evidence of record" and "made findings in favor of LILCO without evidentiary support,"

intervenors' Brief at 88, and (2) the ASLB ignored the S 50.47(a)(1) standard 116/ -The ASLB also noted that the LILCO Plan for notifying boaters on Long Island Sound is near a duplicate of the plan that the Appbal Board approved for the San Onofre Plant in Southern California Edison Co. (San Onofre Nucle-ar Generating Stations, Units 2 and 3), ALAB-717,17 NRC 346, 376 (1983).

117/ The Intervenors do not sper 'fy their objections to the Board's disposi-tions of Contentions 28, 32-34, and 24.L, but state only that they " suffer from the same -defects as those on Contentions 30 and 31." Intervenors' Brief at 91.

These non-specific objections should be r3jected and the Intervenors' objec-tions to the rulings on Contentions 28, 32-40, and 24.L treated as waived or abandoned. See, s u p ra . , n . 2, 114.~

• ' ~ ' ' *

., g g g y g y -* M*' "*~7,"**'~ ~ _ ^ - " -

that requires a finding of " reasonable assurance." 10 C. F. R S 50.47(a)(1) .

Both objections are ill-founded.

As to Contentions 30 and 31, the ASLB held that the operational system of communications urged by Suffolk County's witnesses was not superior to LILCO's administrative system in .the context of a pre-set emergency plan.118/

The decision reflects the ASLB's in' depth review of the difference between ad-ministrative and operational communications systems, PID at 729-31, 734-37, and its review of Suffolk County's concerns about implementation of the admin-istrative communication system proposed by LILCO, PID at 731-34, 737-39.

The ASLB's conclusion is supported by evidence that the LILCO Plan, con-ceived in advance by traffic professionals rather. than devised on the spot by field personnel, rarely requires communications among field personnel.

Cordaro et al., ff. Tr. 5823, at 15; Tr. 5930, 5961-62 (Cordaro), 5934-37, 5939-41, (Hobbs), 5970 (Renz); see also Tr. 6214-16 (Snow). Contrary to the Intervenors' assertions, the evidence presented by all parties was carefully considered and the findings in favor of LILCO had substantial evidentiary sup-4 port. See 1 : PID at 729-40.

The Intervenors also argue that the ASLB's findings on Contentions 30 and 31 must be reversed because they are based on Contention 65, and the .in-tervenors assert that the ASLB erred in its findings on Contention 65. The ASLB's findings on Contentions 30 and 31 are premised in .large part on its 118/ As the ASLB explained in its opinion, an " administrative" communications system uses " vertical pathways of communication within a management hierar-chy"; in contrast, an " operational" system depends on direct lateral communi-cations among field workers to solve problems among themselves. PID at 729-31.

m b

conclusion that successful traffic managemen,t under the LILCO Plan does not

,. depend on communications among field personnel. See PID at 736-37. Howev-er, even an adverse finding on Contention 65 would not disturb the holding on Contentions 30 and 31. The issue raised by Contention 65 is the efficacy of the evacuation time estimates derived from LILCO's traffic model. Not one of Suffolk County's witnesses on Contention 65 urged that a pre-planned evacua-tion was inappropriate or that ad_ hoc traffic rilanagement was a more appropri-ate solution to the problem of evacuating Shoreham's 10 mile EPZ. See PID at 781-808; intervenors' Brief at 64-79. Intervenors' domino thr.ory for reversal of Contentions 30 and 31 should be rejected.

Intervenors again challenge the ASLB's findings based on LILCO's evi-dence by claiming that their own witnesses were the "only witnesses qualified

' to testify about the practical realities of implementing traffic controls and emergency respon.se communications." Intervenon Brief at 90. Suffolk Coun-ty's witnesses, while qualified to give testimony on their experience with police communications, admitted to having no experience with emergency planning or pre-planned communications for a large-scale evacuation.

~

Tr. 5419, 6194 (Regensburg, Snow, Stiles); see Tr. 6244-45, 6247-48 (Stiles, Snow) . As - the ASLB recognized, the experience of the police witnesses was not directly transferable; the work assignments of LERO traffic guides and police officers are markedly different and the problems posed by a pre-planned evacuation are different from those encountered by the police in their normal duties. PID at 736-38.119/

119/ The intervenors' argument on Contention 29, which is relegated to their footnote 112, is without merit. First, they ignore the facts clearly stated in (footnote continued)

s

' The Intervenors' second general objection, that -on these issues the ASLB failed to make a specific finding of compliance with the 50.47(a)(1) "rea-sonable assurance" standard, is not elaborated. The ASLB need not engage in a ritual issue-by-issue recitation of the words " reasonable assurance" to make the requisite S 50.47(a)(1) finding. Here, the ASLB was clearly mindful of the regulatory standard (see PID at 735), and the language employed by the ASLB is equally clear in its finding that the communications contentions were without merit. PID at' 726-44.

K. Training (Contentions 24.S, 39-41, 44, and 98-100)

(PID at 744-56; intervenors' Brief at 91-93)

The Intervenors expended at least five of the seven hearing days allot-ted to these issues attacking training techniques employed by LILCO and challenging LILCO's ability to train its own employees to perform emergency response functions. On appeal, the Intervenors abandoned these global is-sues 120/ raising but two smaller ones: (1) that the ASLB made' only (continued from previous page) both the record and the ASLB opinion, which states that "in an emergency the lead communicator will call two communications technicians if the EOC is acti-vated." PID at 728; see also Cordaro et al., ff. Tr. 5823, at 11-13; Tr.

5899-908 (Renz). Second, the Intervenors ignore the overriding legal conclu-sion that no regulation or guideline requires a plan to include a specification of equipment repair capabilities or a reference to repair technicians. Cordaro et al., ff. Tr. 5823, at 11-12; Tr.12,539-40 (Keller),12,541 (Kowieski). Final-ly, contrary to the Intervenors' assertion, the evidence demonstrates that LILCO has instituted a communications testing program which has "the capabil-ity or' maintenance and repair of radio equipment." PID at 729; see Cordaro et a_1. , ff. Tr. 5823, . at 11; OPI P 3.4.1.

120/ With the exception of Contention 98, Intervenors raise no specific excep-tion to the ASLB's findings, but only allege generally that "the ASLB ignored (footnote continued)

contingent findings, which assertedly fail to meet regulatory standards and (2) that regulations and NRC precedent require that schools, hospitals, nursing homes, and special facilities agree to receive training.

The Intervenors' claim that the ASLB's ruling on the training conten-tions is contingent on final findings by FEMA after a graded exercise is incor-rect. The facts are to the contrary; the ASLB found, in each instance, that the training contentions were without merit and that the LILCO training pro-gram met the regulatory standards. .PID at 756. The ASLB's conclusions pre-9 dict that the training program contains " adequate information to enable person-nel to carry out their emergency response functions." ~ PID at 747. As the decision implicitly recognizes, an initial decision on emergency preparedness need not be made on final FEMA findings. See Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-730,17 NRC 1057,1066 (1983),

citing Southern California Edision Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717,17 NRC 346, 380 (1983). Thus, FEMA's role for Shoreham's off-site emergency plan, as for all off-site emergency plans, ~ is to confirm in the graded exercise the ASLB's prediction that the plan can be sat-isfactorily implemented. The ASLB's decision merely recognizes FEMA's con-firmatory role.

(continued from previous page) the evidence' of record and engaged in mere speculation." Intervenors' Brief at 92. Intervenors' other challenges to LILCO's training program, which were raised in other contentions, should be treated as waived or abandoned. See, supra, n.114.

o Second, the Intervenors characterize as error their fundamental dis-agreement with the ASLB's interpretation of NUREG-065411.0.4 and 10 C.F.R.

S 50.47(b)(15)121/ that training- need only be provided to organizations providing essential support services. The regulations do not require that ra-diological response training be given schools, hospitals, nursing homes, and other special facilities that, like the general public, are called upon to take protective actions in an emergency. Babb et al. , ff. Tr. 11,140, at 4-5, 78-82; Tr. 6558, 6563-64 (Robinson); see also Pacific Gas E, Electric Co.

(Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-82-70,16 NRC 756, 791-92, 846'(1982).122/

The intervenors assert in footnote 115 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 121/ Section 50.47(b)(15) provides that " radiological emergency response

. training is provided to those who may be called upon to assist in an emergen-cy." NUREG-065411.O.4 provides that "each organization shall establish a training program for instructing and qualifying personnel who will implement the radiological emergency response plan."

122/ The case law cited by the Intervenors does not support reversal of the ASLB's decision. Consumers Power Co. (Big Rock Point Plant), LBP-82-77,16 NRC 1096,1098-100 (1982), does not support Intervenors' argument that schools and other 'special facilities require training but rests on the fact that no attempt was made to identify the groups who required training nor to con-sider what that training .should include. The LILCO Plan systematically con-siders who must be trained, what they must learn, and how they will be trained, and provides that training will be offered to schools, hospitals, nursing homes, 'and other special facilities annually. See PID at 753-55; LILCO

' Plan at 5.1-6. Likewise, Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), LBP-81-59,14 NRC 1211,1640-41 (1981), was based on the abser.ce of plans for school evacuation and not on any decision that school personnel required special training. Finally, Consolidated Edison Co. of New York (Indian Point, Unit No. 2), LBP-83-68,18 NRC 811, 952-53 (1983), does not purport in any way to interpret the regulations or guidelines.

expected to perform such tasks in a manner consistent with the complex admin-istrative and procedural structure set forth in the Plan," and that the ASLB's .

finding to the contrary is without factual support. Intervenors' Brief at 93.

The evidence of record soundly refutes the Intervenors' claim.123/ Babb e_t ajl. , ff. Tr.11,140', at 78-79; Tr.1157-58,1175 (Weismantle), 11,846-52 (Daverio, Cordaro, Mileti), 12,192-95 (Kowieski, McIntire), 14,523-24 (Keller); see also Kansas Gas' f, Electric Co. (Wolf Creek Generating Station,

. Unit No.1), LBP-84-26, 20 NRC 53, 69-70, 97-98 (1984) . Clearly, the ASLB weighed the evidence before it and was persuaded that personnel at schools, hospitals, nursing homes, and other special facilities .would, under the LILCO plan, perform tasks that are related to their normal activities and that it is not ne essary to train people to do in an emergency what they already know how to do.

L. Ingestion Pathway Protective Actions (Contentions 81 and 24.R) (PID at 875-78, 885-87 Intervenors' Brief at ~93-97)

1. Adequate Protective Measures for the Ingestion Pathway Will Be Taken in an Emergency Despite LILCO's inability to " impose" Such Measures The Intervenors have conceded that OPIP 3.6.6 provides for ingestion pathway protective actions that, if implemented, would effectively protect the public from consumption of contaminated foodstuffs. See PID at 875; interve-nors' Proposed Findings at 764. They argue, however, that the Plan is 123/ For example, Dr. Mileti stated on cross-examination that teachers "might need to help get kids on a bus or accompany them on a bus [but that] is some-thing that you don't have to train teachers to know how to' do." Tr. 11,851 (Mileti) .

- ~ -

's v .

90 inadequate because NUREG-0654 ll.J.11 provides that a " plan shall identify procedures . . . for imposing protection procedures," and LILCO does not

~

have legal authority to impose protective measures for the ingestion pathway.

~

The ASLB determined that the LILCO Plan provides reasonable ' assurance

~

that adequate protective measures for the ingestion pathway will. be taken de-spite LILCO's inability to " impose"124/ such mea'sures. See' PID at 877-78.

The ASLB found 'that LILCO's plan to contact farmers and other food chain.es-

} tablishmehts, and to fully compensate them for food rendered unsalvageable by -

a radiological emergency, would effectively prevent the public from eating con-taminated foodstuffs.

7 The 'ASLB's findings are well supported by the record. Both ' FEMA and LILCO testified, without contradiction, that the compensation plan set forth in i

OPIP 3.6.6 will effectively eliminate any incentive for farmers or merchants to

~

sell or distribute contaminated food to anyone oth~er. than LILCO. Tr.

. 13,687-88 (Cordaro), _14,252,14,257-58 (Keller mci ntire) . FEMA testified that LILCO's compensation ~ plan would be particularly effective since the public will not buy food that it thinks could be contaminated. See Tr; 14,257 (Keller) . The ASLB reasonably concluded from this testimony that food pro-ducers and processors would welcome the opportunity to sell their produce to

.LILCO in a radiological emergency since, as a practical matter, there would be no other outlet for the food. See PID at 877-78.

124/ At the outset, the Intervenor's textual basis for their argument (the word " impose") is weak. " impose" does not mean just "to establish or apply

~ the authority," though that'is one of its meanings. Webster's Ninth New Colle-

~giate Dictionary at 605-(1985). It also means " place" or " set," & In NUREG-0654 it can just as well mean " establish," " set-up," or "put in place."

s y

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. . . . .. -. . . ~ - . - _ _ . -. . .. _ _ - - .

1 There simply is no evidence in the record even suggesting t' hat LILCO's

^

~

compensation program would not be at least as effective as impoundment, impo-sition of embargoes, confiscation, or condemnation of contaminated food-4 stuffs.125/ This is reflected in the Intervenors' brief, which is noticeably de- '

void of'any facts 'to support their. argument that LILCO's inability to " impose" ingestion ' pathway protective actions will necessarily result' in LILCO's inability to implement those protective actions.

, Intervenor's disregard the fact that ' e evidence clearly demonstrates that :LILCO's plan for the ingestion pathway w:ll be effectively implemented,

arguing instead that it "does not compensate fo' the failure to satisfy the

~ NUREG-0654 requirement that- there exist procedures for impo~s ing protective action s . . .. ' i ntervenors' Brief at 95. This argument is faulty for two rea-sons.

First, NUREG-0654 is merely a guidance document and, as such', is not binding authority. See, e.g. , Southern California Edison ' Co. (San Onofre

. Nuclear Generating Station, Units 2 and 3), LBP-82-39,15 NRC 1163,1191 (1982). Although NUREG-0654 is accorded " considerable weight" by NRC li-

. censing boards when evaluating emergency plans, see, e.g., Public Service Co. of New Hampshire (Seabrook Statio'n, Units l' and 2), LBP-83-32A,17 NRC 1170,1177 n.-5 (1983), reviewers of. emergency plans may determine:that mea-l

!' sures .other than those ~ the NUREG-0654 criteria recommend are adequate to 4

E 125/ Moreover, LILCO's compensation program will be supplemented by the authority of the United States Food and Drug Administration to condemn con-taminated food intended for, or with the potential of traveling in, interstate commerce. NRC Proposed Findings at 718; Baldwin et al. , ff. Tr.12,173, at 87; see also Tr.14,258 (Keller).

I

2 satisfy the regulatory standards set forth in 10 C.F.R. S .50.47. See Carolina Power. E, Light Co. (Shearon Harris Nuclear Power Plant), LBP-85-27A, 22 NRC 207, 210 (1985). Thus, the ASLB acted properly in finding that LILCO's plan for the ingestion pathway is adequate despite LILCO's inability to require pro-tective measures.

Second, as the ASLB properly noted, although NUREG-0654 II.J.11 does provide for a plan to identify procedures for " imposing" protective actions, "it does so in the context of guidance to States for which such language would be app rop riate. "126/ PID at 878. Since the State has refused to participate in planning for ingestion pathway protection, this language simply is not appro-priate. The Intervenors' argument that a plan that can be effectively imple-mented by LILCO is inadequate, nevertheless, simply because. it does not square precisely with the nonbinding language of NUREG-0654 ll.J.11, ele-vates form over substance and should be rejected.

2. The State of Connecticut Will -Protect its--

Citizens During an Emergency at Shoreham Contention 24.R involves two issues regarding the emergency response of the State of Connecticut in the portion of Connecticut that lies in the inges-tion pathway EPZ for Shoreham: (1) whether Connecticut has agreed to take 126/ As the NRC Staff argue with regard to 10 C.F.R. Part 50, App. E, IV.D.3, which says that the "responsibilty for activating such a public notifi-cation system shall' remain with }s apornpriate governmental authorities," in-herent in the Commission's decisio.1 to let this proceeding go forward was the decision that specific portions of the regulations that refer to state and local government participation are superseded by 10 C.F.R. S 50.47(c)(1) in a case, such as .this one, where the utility is doing the planning. See Tr. 15,755-57, 15,774-76 (NRC Staff counsel).

protective actions in the event of an emergency at Shoreham and (2) ~whether the letters of agreement between LILCO and Connecticut satisfy the guidelines of NUREG-0654.

Five letters in evidence show that Connecticut has in fact agreed to pro-tect its citizens should there be an emergency at Shoreham. Three are from the State of Connecticut and say, among.other things, that Connecticut in-tends to protect its citizens.127/ There is no evidence in the record disputing the authenticity of the letters from Connecticut, and the Intervenors did not introduce any evidence that would cast doubt on the intentions or the ability of 127/ The first letter, dated December- 15,1983 (Cordaro et al. , Tr. 4/6/84 Vol. II, at Att. 28; PID at 885), from Mr. Frank Mancuso, State Director of the Office of Civil Preparedness, provides that Connecticut, pursuant to re-quests for assistance from " licensees, federal, state, and local (county) agen .

cies," would " support and provide radiological assistance in Connecticut" should an accident occur at Shoreham. Id. This letter was addressed to the State of New York, id_.; its application to LILCO was challenged on cross-examination by Suffolk County. See Tr. 6366-68 (Robinson) . Curing cross-examination of LILCO witnesses, New York State produced a letter' dated March 30, 1984 from David Axelrod, Chairman of New York State Disaster Prepared-ness Commission to Mr. Mancuso, disavowing any agreement to exchange infor-mation about Shoreham with Connecticut. New York Ex. 3.; PID at 886. Mr.

Mancuso respoaded in a letter dated April 18,1984 that (1) "the state of Con-necticut will not become involved in the explosive environment that exists in the state of New York concerning radiological emergency planning," (2) the December 15 letter "does not purport to serve as a letter of agreement" be- l tween New York and Connecticut, and (3) the December 15 letter "does l sugguest that (Connecticut is) meeting the requirements of NUREG-0654 FEMA Rep 1." LILCO Ex. 48 at 2; Tr.13,868-69 (Renz); PID at 886.

In light of the controversy raised by New York State's letter of March 30, LILCO asked Connecticut to reaffirm its position in writing. Cordaro and Renz, ff. Tr. 13,858, at 2-3, Att. 1; Tr. 13,860-68, 13,888 ( Renz) . Con-necticut responded to LILCO in a letter dated June 14, 1984, in which Mr.

Mancuso stated that Connecticut will respond to an emergency at Shoreham "by instituting existing emergency plans and resources to protect the health and safety of the residents of Connecticut." Cordaro and Renz, ff. Tr. 13,858, at Att. 2. This response will be forthcoming "regardless of what New York or LlLCO does" and whether Connecticut is notified "by LILCO or any other com-petent source." Id.

• ~

the State.of. Connecticut to respond to' protect its citizens should an accident occur at' Shoreham. P.lD at 886. Based upon the uncontroverted evidence, the ASLB found that~there is :.n independent commitment by the State of Con-necticut to take actions to protect its citizens in the event of an accident'at Shoreham regardless of what other entities might do, and that that commitment

, was sufficient to satisfy NUREG-0654.

The intervenors now challenge the ASLB's decision on the ground that the ASLB should have reviewed Connecticut's plans regarding protective ac-tions in a Shoreham emergency. The . argument should be rejected. First, Contention 24.R does not rais~e any issue regarding the adequacy of Con-necticut's emergency response plan, but states instead that there is no indica-tion from Connecticut that it would respond to protect its citizens in an emer-gency. The Connecticut letters clearly indicate that it will.128/ 'In addition, the Intervenors had adequate opportunity to bring to the ASLB's attention evi-dence, if any. exists, that Connecticut is unwilling or unable to implement in-gestion pathway protective actions within its boundaries during an emergency

~

at Shoreham. This the Intervenors did not do.

M. Recovery' and Reentry (Contention 85) (PID at 878-82;

'Intervenors' Brief at 97-99)

The' intervenors argue that the LlLCO Plan for recovery and reentry is inadequate-because it allegedly provides only for the creation of a committee at

. 128/ In addition, the Board noted that "[a]s a practical matter the Board would find it incredible to suppose that the State of Connecticut would stand idle in the event of an emergency and not take actions to interdict a contami-

, nated food supply." PID at 887.

--. - .+,s -er -,e-- r w r- < r n-e

the time of an accident and does not address such issues as " recovery activi-ties to' reduce dose rates in' contaminated areas, decontamination methods, or the criteria to d'etermine.which methods are necessary or appropriate." Inter-venors' Brief at 97-99. This argument reflects a lack of understanding of what is required' by the regulations. Section 50.47(b)(13) of 10 C.F.R. and NUREG-0654, -II.M require only that "[g]eneral plans for recovery and reentry

[be] developed." Licensing boards have consistently held that the emphasis in criterion ll.M of NUREG-0654 is on ," planning for the decision to reenter" and not' on the detailed " measures to be executed during reentry and recovery."

See Carolina Power & Light Co. (Shearon Harris Nuclear Plant, Units 1 & 2),

LBP-84-298, 20 NRC- 389, _399 (1984) . This is due, in part, to the fact that "since reentry and recovery would not take place under the same time pres-sures protective actions would, planning for measures to be executed during reentry and recovery needn't be more than general." Id.129/ It is clear, therefore, that the ASLB's determination _that "[i]t is not necessary to preplan at this stage for contingencies that a committee can resolve at the time of an ac'cident where it has the necessary information for decisionmaking," PID at 880, is well supported by legal precedent. Intervenors have not cited any au-thority to the contrary.

129/ See also Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-82-70,16 NRC 756, 788, 839-41 (1982) (General plans are adequate because recovery and reentry operations do not deal with immediate life-threatening situations and assistance from Federal agencies such as EPA and DOE would be available); Southern California Edison Co. (San Onofre Nu-clear Generating Station, Units 2 and 3), LBP-82-39,15 NRC 1163,1280-83 (1982) (only general plans for recovery and reentry are necessary since only a small amount of advance planning can be done in this area and time is not of the essence), aff'd, ALAB-717,17 NRC 346 (1983).

1 Provisions in the LILCO Plan for recovery and reentry satisfy the re-

.quirement -in both 10 C.F.R. S 50.47(b)(13) and NUREG-0654 ll.M that

"[g]eneral plans for recovery and reentry (be] developed." Intervenors' as-section .that _the LILCO Plan for recovery and reentry provides only for the creation of a committee at the time of an accident simply is not accurate. Sec-tion 5.1 of OPIP 3.10.1 does provide for establishment of a Recovery Action Committee at the time of a radiological emergency.130/ But OPIP 3.10.1 also sets-forth specific responsibilities of the committee members and delineates specific procedures' for implementing recovery and reentry operations. See

Cordaro e_t al. , ff. Tr.15,282, at 6-12 and Att.1.131/

~

t-130/ The Chairman of the Recovery Action Committee will be the Manager of

. Local Response. Other committee members include a nuclear engineer, the Health Services Coordinator, Evacuation Coordinator, Support Services

. Coordinator, Coordinator of Public Information, and Radiation Health .

i:

Coordinator. Representatives of federal, state, and local governments will also be invited to participate. Cordaro et al . , ff. Tr. 15,282, at 7.

131/~ The Radiation. Health Coordinator, for example, is charged in Section 5.3 of OPIP 3.10.1 with responsibility for air monitoring, as well as the sampling and analysis of water, milk, foodstuffs, animal fodder. and forage grass, soil,

! ' and other depositions ~, to determine the nature and extent of any radioactive contamination. Id. at '7-9;. .Tr. 15,305-09 (Daverio, Watts) . The Committee

. will base' its recovery. and rcentry actions on this environmental monitoring L ' data . Id. Section .5.4 of OPIP 3.10.1 sets forth specific recovery and reentry procedures for each of three different. emergency situations, which are based l upon the existence and amount of radioactive surface contamination in the en-vironment. These classes are (1) an emergency that does not involve offsite

... radiological release, (2) one in which release occurs and results in little or no

. surface contamination, and (3) one in which a release occurs and results in

. surface contamination at unacceptably high levels. In cases where no hazard exists from environmental radiation, the Committee would determine whether utilities are properly functioning in the evacuated area and would provide for

--~

public transportation for those who require it during evacuation. Id. at 8-9.

F in cases where radiological release results in unacceptably high levels of sur-face contamination, the Committee-would define the contaminated area and would warn the public through EBS messages that they should not reenter the area. Environmental monitoring would continue until it was determined that the level of-surface contamination no longer exceeded acceptable levels. At 5

that point the public would be permitted to reenter the contaminated area. Id.

at 9-10.

i

.____ __.- =- -

. . _ . _ , -, . , . . -,,.,,,_.,,.,,.,._m.m__,., ,,. ., ., , ~.,.-_.,m.,. . - . , ._ . , . . , , - . . - . _ , -

s. l e With regard to decontamination, solid radioactive waste collected from decontamination activities will be transported to Shoreham pending ultimate disposition. Liquid wastes will be discharged to sewers only after it has been determined that radioactivity in such waste materials is at or below acceptable levels. Cordaro et al., ff. Tr. 15,282, at Att.1; Tr.15,319-21 (Cordaro, Daverio, Watts). It is true, as the !ntervenors assert, that the LILCO Plan does not include a discussion of the various decontamination methods that could be considered following a radiological emergency. Such detail in an emergency plan is not required by the regulations. See, e.g. , Shearon Harris, supra, 20 NRC at 399. LILCO will not be without guidance, however. LILCO will rely upon readily available technical literature as guidance for decontamination.

Cordaro g al. , ff. Tr.15,282, at Att. 1 ; Tr. 15,293, 15,298-99, 15,312- 15 (Daverio, Watts) . In addition, LILCO will be discussing the range of

-decontamination options with federal agencies called upon as part of the federal response. Tr. 15,312-13 (Watts) . The LILCO Plan properly focuses on " plan-ning for the decision to . reenter," rather than on "the measures to be executed during recovery and reentry." Shearon Harris, supra, at 399.

l

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, 0% -

IV. CONCLUSION i I

For the reasons stated above, the Appeal Board should' affirm theLfactual

~ determinations in the ASLB's' Partial Initial Decision on Emergency Planning,

~

Long Island Lighting Co. (Short . am Nuclear Power Station, Unit 1),

LBP-85-12, 21 NRC 644 (1985), except as to the decisions on Contentions 11 (conflict of interest; PID at 679-87) and 92 (state plan; PID at 882-85), which were appealed by LILCO and briefed separately by the parties.

Respectfully submitted, LONG ISLAND LIGHTING COMSANY tv J^

Donald P. Irwin James N. Christman Lee B. Zeugin Kathy E. B. McCleskey Jessine A. Monaghan Counsel to LILCO Hunton E, Williams 707 East Main St.

P.O. Box 1535 Richmond, VA 23212 DATED: December 13, 1985 s

s p.- . . _ - . . - - . . - - . - - - - - - - - - - - . - - - - - - - - - - - . - - -

- - - - ----a 5 , . . . . . . _ . . . - - , . . - , , . - , _ - , , . . , . , - _ , , . - _ -

LTLCO, December 13, 1985 CERTIFICATE OF SERVICE ~

I l

l In the Matter of -

LONG ISLAND LIGHTING COMPANY 4 (Shoreham Nuclear Power Station, Unit 1) )

Docket No. 50-322-OL-3 cat gr 7g' U9m,q I hereby certify that copies of LILCO's Brief in o sition to the Intervenors' Appeal of the ASLB's Partial I i I6 All:36 Decision on Emergency Planning were served this date upon the following by by first-class mail, postage prepaid. LFFu c.

DOCEimg g yg;'p' BRANCH Alan S. Rosenthal, Esq., Dr. Jerry R. Kline Chairman, Atomic Atomic Safety and Licensing Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission '

Commission East-West Towers, Rm. 427 Fifth Floor (North Tower) 4350 East-West Hwy.

East-West Towers Bethesda, MD 20814 4350 East-West Highway Bethesda, MD 20814 Mr. Frederick J. Shon Atomic Safety and Licensing Gary J. Edles, Esq. Board Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory East-West Towers, Rm. 430 Commission 4350 East-West Hwy.

Fifth Floor (North Tower) Bethesda, MD 20814 East-West Towers 4350 East-West Highway Secretary of the Commission Bethesda, MD 20814 Attention: Docketing and Service Section Dr. Howard A. Wilber U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Fifth Floor (North Tower) Appeal Board Panel East-West Towers U.S. Nuclear Regulatory 4350 East-West Highway Commission Bethesda, MD 20814 Washington, D.C. 20555 Morton B. Margulies, Atomic Safety and Licensing Chairman, Atomic Safety Board Panel and Licensing board ,

U.S. Nuclear Regulatory U.S Nuclear Regulatory Commission Commission, Rm. 402A Washington, D.C. 20555 East-West Towers 4350 East-West Hwy.

Bethesda, MD 20814

Bernard M. Bordenick, Esq. Stewart M. Glass, Esq.

Oreste Russ Pirfo, Esq. Regional Counsel Edwin J. Reis, Esq. Federal Emergency U.S. Nuclear Regulatory Management Agency Commission 26' Federal Plaza, Rm 1349 Washington, DC 20555 New York, New York 10278 Donna Duer, Esq. Stephen B. Latham, Esq.

Attorney Twomey, Latham & Shea Atomic Safety and Licensing 33 West Second Street Board Panel P.O. Box 298 U.S. Nuclear Regulatory Riverhead, New York 11901 Commission East-West (North Tower) Jonathan D. Feinberg, Esq.

4350 East-West Hwy. Staff Counsel Bethesda, MD 20814 New York State Department of Public Service Fabian G. Palomino, Esq. Three Rockefeller Plaza Special Counsel to the Albany, New York 12223 Governor Executive Chamber William E. Cumming, Esq.

Room 229 Associate General Counsel State Capitol Federal Emergency Albany, New York 12224 Management Agency 500 C Street, S.W.

Mary Gundrum, Esq. Room 840 Assistant Attorney General Washington, D.C. 20472 2 World Trade Center Room 4614 Ms. Nora Bredes New York, New York 10047 Executive Coordinator Shoreham Opponents' Coalition Spence W. Perry, Esq. 195 East Main Street Acting General Counsel Smithtown, New York 11787 Federal Emergency Management Agency Gerald C. Crotty, Esq.

501 C Street, S.W. Counsel to the Governor Washington, D.C. 20472 Executive Chamber State Capitol MHB Technical Associates Albany, New York 12224 1723 Hamilton Avenue Suite K Martin Bradley Ashare, Esq.

San Jose, CA 95125 Eugene R. Kelley, Esq.

Suffolc County Attorney Mr. Jay Dunkleberger H. Lee Dennison Building New York State Energy Office Veterans Memorial Highway Agency Building 2 Hauppauge, New York 11787 Empire State Plaza Albany, New York 12223

, 'r '

Dr. Monroe Schneider Herbert H. Brown, Esq.

North Shore Committee Lawrence Coe Lanpher, Esq. I P.O.. Box 231 Karla J. Letsche, Esq.' I Wading River, NY 11792 Kirkpatrick & Lockhart I 1900 M Street, NW 8th Floor Washington, DC 20036 1

^ ,

4.-

Donald P. Irvin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: December 13, 1985