ML20141F848

Reply Brief on Appeal of ASLB 850417 Partial Initial Decision Re Emergency Planning

ML20141F848
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	01/06/1986
From:	Latham S, Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20141F810	List: ML20141F803 ML20141F848 ML20141F863
References
OL-3, NUDOCS 8601090563
Download: ML20141F848 (26)

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f(g UNITED STATES OF AMERICA vg' p NUCLEAR REGULATORY COMMISSION lh- y

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In the Matter of )

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

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.(Shoreham Nuclear Power Station, )

Unit 1) )

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SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON REPLY BRIEF ON APPEAL OF LICENSING BOARD APRIL 17, 1985 PARTIAL INITIAL DECISION ON EMERGENCY PIANNING January 6, 1986 PDR s

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TABLE OF CONTENTS I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . .1 II. DISCUSSION . . . . . . . . . . . . . . . . . . . . . .1 A. Preliminary. Matters . . . . . . . . . . . . . . . .1 B. The ASLB's Error in Denying Admission of Contention 22. . . . . . . . . . . . .5 C. The ASLB's Error in Denying Discovery Against FEMA. . . . . . . . . . . . . . .6 D. Protective Actions for Schools. . . . . . . . . . .8

-E. Special Facilities. . . . . . . . . . . . . . . . .10 F. LILCO's Lack of Credibility . . . . . . . . . . . .11 G. The Evacuation Shadow Phenomenon. . . . . . . . . .12 H. Role Conflict . . . . . . . . . . . . . . . . . . .14 I. Evacuation Time Estimates . . . . . . . . . . . . .17 J. Protective Actions in Connecticut . . . . . . . . .18

7-11 TABLE OF AUTHORITIES CASES Citizens for an Orderly Energy Policy, Inc.

v. Suffolk County, 604 F. Supp. 1084, (E.D.N.Y. 1985) . . . . . . . . . . . . . . . . . . . . . .4 Cuomo v. LILCO, Consol. Index No. 84-4615-(N.Y. Sup. Ct., February 20, 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . .5 In re Prospect v. Cohalan, 65 N.Y. 2d 867, 493 N.Y.S. 2d 293 (1985). . . . . . . . . .4 Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984), cert. denied, 105 S.Ct. 815.(1985) . . . . . . . . . . . . . . . . . . .7 ADMINISTRATIVE DECISIONS Cincinnati f.s & Elec. Co.

(Zimmer Nuclear Power Station, Unit 1), ALAB 727, 17 NRC 760.(1983) . . . . . . . . . . . . . . . . . . . . .3, 15 Consolidated Edison Co.

(Indian Point, Units 2 and 3), LBP-83-68, 18 NRC 811 (1983) . . . . . . . . . . . . . . . . . . . . .3, 10 Duke Power Co.

(Catawba Nuclear Station, Unit 1), LBP-84-37, 20 NRC 933 (1984) . . . . . . . . . . . . .. . . . . . . .15 Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), ALAB-773, 19 NRC 1333 (1984). . . . . . . . . . . . . . . . . . . .7

.Long_ Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), ALAB-818, slip op. (October. 18, 1985) . . . . . . . . . . . . . . . .9

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Lousiana Power & Light Co.

(Waterford Steam Elec. Station, Unit 3),

LBP-82-100, 16 NRC 1550 (1982). . . . . . . . . . . . . . 13 Pacific Gas & Elec. Co.

(Diablo Canyon Nuclear Plant, Units 1 and 2), c.

ALAB-580, 11 NRC 227 (1980) . . . . . . . . . . . .. . . .19, 20 Pacific Gas &-ELec. Co.

(Diablo Canyon Nuclear Plant, Units 1 and 2)

ALAB-781, 20 NRC 819 (1984) . . . . . . . . .. . .. . .4 Pacific Gas & Elec. Co.

(Diablo Canyon Nuclear Plant, Units 1 and 2)

ALAB-811, 21 NRC 1622 (1985). . . . .. . . . . ... . . .3 Pennsylvania Power & Light Co.

Susquehanna Steam Electric Station, Units 1 and 2),

'LBP-82-30, 15 NRC 771, sua sponte review, ALAB-702 16 NRC 1530 (1982). . . . . . . . . . . . . . . . . . . . .9

~ Philadelphia Electric Co.

(Limerick Generating Station, Units 1 and 2),

LBP-85-14, 21 NRC 1219 (1985) . . . . . . . . . . ... . .10 UNPUBLISHED SHOR". HAM ORDERS Special Prehearing Conference Order, August 19, 1983 . . . . . . . . . . . . . . . . . . . . . .19 STATUTES Atomic Energy Act, S 189, 42 USC 5 239. . . . . . . . . . . . .. . . . .. .. . . . .7 REGULATIONS 10 CFR $ 50.47. . . . . . . . . . . . .. . . . . . . . . . .19 10 CFR S 50.47(a)(1). . . . . . . . . . . . . . . . . . . . .19 10 CFR S 50.47(b)(1). . . . . . . . . . . . . . . . . . . . .19 10 CFR S 50.47(b)(3). . . . . . . . . . . . . . . . . . . .19 I

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10 CFR 5 50.47(b)(10) . . . . . . . . . . . . . . . . . . . 19

. 10 CFR I 50.47(c)(2). . . . . . . . . . . . . . . . . . . . .5' l

j MISCELLANEOUS NUREG-0654. . . . . . . . . . .. . . . . . . . . . . . . . 13 i .

NUREG-0654 5 II.J.11. . . . . . . . . . . . . . . . . . . . 19 e

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p 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, )

Unit 1) )

)

SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON REPLY BRIEF ON APPEAL OF LICENSING BOARD APRIL 17, 1985 PARTIAL INITIAL DECISION ON EMERGENCY PLANNING I. INTRODUCTION Suffolk County, the State of New York, and the Town of Southampton

(" Appellants") respond herein to certain matters raised in LILCO's Brief in Opposition to the Intervenors' Appeal of the ASLB's Partial Initial Decision on Emergency Planning, December 13, 1985 ("LILCO Brief") and the NRC Staff Brief in Opposition to "Suffolk County, State of New York, and Town of Southampton Brief on Appeal of Licensing Board April 17, 1985 Partial Initial Decision on Emergency Planning," December 23, 1985

("St*ff Brief").

II. DISCUSSION A. Preliminary Matters In the introduction to its brief, LILCO makes four arguments uhich require response. First, LILCO asserts that "the purely factual issues

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. now before this Appeal Board are garden-variety issues which recur again and again in emergency planning litigation," and "there is nothing unique about emergency planning on Long Island." Therefore, LILCO asserts, the ASLB's rulings, made "for relatively conventional reasons," cannot be impeached merely because its reasoning is applied to Shoreham. LILCO Brief at 5.1 This argument must be rejected. Appellants do not assert that the ASLB's rulings were erroneous "merely because" they were made in the Shoreham case. In every instance, Appellants related the ASLB's errors to the particular evidence and factual questions which were presented to the Board. The mere fact that general subject areas, such as communications and schools, have been considered in emergency planning litigation for other plants cannot be used to avoid addressing the Shoreham-specific evidence concerning those topics in this litigation.

Thus, while topics may be common to other proceedings, the evidence upon which the decision of the ASLB and this Board must be based, is unique.

It is only that evidence, not whatever may have formed the basis for fact findings at other plants, which must govern this litigation.

Second, LILCO asserts that Appellants urge that an " issue-by-issue recitation" of "' reasonable assurance' of implementation of each of LILCO's proposed emergency planning measures," is required. LILCO characterizes this position as a " red herring" and asserts that reasonable assurance findings on particular issues are not required.

LILCO Brief at 6-7. LILCO mischaracterizes Appellants' position and NRC 1

A variation on this argument is made several other times when LILCO asserts that factual findings by other licensing boards in other cases should be dispositive of allegedly similar issues in this case. See, e.g., LILCO Brief at 35, 42, 46, 83.

4 procedure. Appellants do reference-the required Section 50.47 reasonable assurance finding with respect to many issues. However, LILCO fails to

comprehend Appellants' point

particular defects in LILCO's Plan make it impossible for the ASLB to make the required Section 50.47(a)(1) finding that there is reasonable assurance that adequate protective actions can and will be taken. Moreover, NRC precedent makes clear that specific issues or components of an emergency plan addressed in the Section 50.47 and NUREG-0654 planning standards must be examined for their impact upon the reasonable assurance of implementability finding required by the 4 regulations. See, e.g., Cincinnati Gas & Elec. Co. (Zimmer Nuclear Power Station, Unit 1), ALAB-727, 17 NRC 760 (1983); Consolidated Edison Co.

(Indian Point, Units 2 and 3), LBP-83-68, 18 NRC 811 (1983).

Third, LILCO asserts that because this litigation has been long and detailed, and the ASLB's actions were, in LILCO's view, " deliberate" and 2

.For example, because no schools have prepared or adopted plans to respori to a S,horeham emergency, the ASLB could not find reasonable assur4 nce that adequate protective measures for schoolchildren can and will ae taken. Similarly, because LILCO is not a credible source of

- info mation to the public, the ASLB could not find reasonable assurance that the protective measures recommended by LILCO can and will be taken by the public.

3 On a related matter, this Board should reject the Staff's ritualistic recitation regarding " predictive findings." Staff Brief at 6-7.

Notwithstanding the NRC's use of " predictive findings," there is no basis to find that LILCO's "present plans for future regulatory compliance" can support a reasonable assurance finding. See Pacific Gas & Elec. Co.

(Diablo Canyon Nuclear Plant, Units 1 and 2), ALAB-811, 21 NRC 1622, 1627 >

4 (1985). Rather, as noted in Zimmer, more is required than a representation of ongoing efforts to enlist assistance. See 17 NRC at 773. It"is beside the point that LILCO may have tried to satisfy the NRC's regulations. Even aside from LILCO's lack of legal authority, there are huge gaps in the adequacy of planning for Shoreham. These gaps preclude any reasonable assurance finding, whether it be called

" predictive" or by some other name.

d

- - " careful," special deference should be accorded to the ASLB's

-determinations. See, e.g., LILCO Brief at.2-4. Appellants do not share LILCO's view of the care taken by the ASLB in rendering its decision on many issues. But leaving that aside, it is clear that this Board's obligation to review the evidence and apply the applicable regulations to that evidence remains tha same. '

See Pacific Gas & Elec. Co. (Diablo i

Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 834 (1984). LILCO cites no authority for the proposition that the Shoreham ASLB should receive special treatment or that this Board's review function should be different in this case.

Finally, LILCO's continued assertion that Suffolk County and the -

State of New York have acted arbitrarily in declining to sponsor or F participate in an emergency plan for Shoreham (LILCO Brief at 7) requires

- a response. LILCO's assertion is irresponsible. The courts have rejected that argument, and LILCO must acknowledge that fact. Looking at federal law, Judge Altimari found that the County's decision-making was rational. Citizens for an Orderly Energy Policy, Inc. v. Suffolk County, 604 F. Supp. 1084, 1098-99 (E.D.N.Y. 1985). And, the New York Court of Appeals ruled that under State law the County does not have to adopt a i

i plan. In re Prospect v. Cohalan, 63 N.Y.2d 867, 493 N.Y.S.2d 293 (1985).

-Thus, the "significant context of this highly detailed factual case" (LILCO Brief at 5) is that the local government has acted properly.

Indeed, it is LILCO which has clung to a " bastion of arbitrary legal j

power" (id.) by continuing to assert that it has authority to implement its Plan despite the New York Supreme Court decision to the contrary.

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4 5-See Cuomo v. LILCO, Consol. Index No. 84-4615 (N.Y. Sup. Ct., Feb 20, 1985).

B. The ASLB's Error in Denying Admission of Contention 22 LILCO and the' Staff assert that the ASLB's rejection of Subparts A, B and C of Contention 22 was correct because the contention argued for creation of a 20-mile EPZ. LILCO Brief at 8-9; Staff Brief at 13. As a review of the contention makes clear, Appellants did not assert that the Shoreham EPZ should have been 20 miles. Appellants merely sought to contest the basis for the EPZ proposed by LILCO, because they believed that local conditions were not properly considered in the creation of LILCO's EPZ as required by Section 50.47(c)(2). It ir. no secret that Appellants believed, and so alleged in the contention, that LILCO's EPZ was too small, that an EPZ larger than 10 miles was necessary, and that a proper consideration of local conditions could result in a determination that an EPZ perhaps as large as 20 miles was necessary. It is not true, however, that in Contention 22 5ppellants "were requesting the NRC to establish a 20-mile EPZ." Rather, Appellants sought to present evidence to the ASLB and to argue from that evidence so the Board could determine the appropriate EPZ size according to the method set forth in 50.47(c)(2). In light of the evidence Appellants would have presented, the ASLB may have concluded that an EPZ of 11 miles, 12.5 miles, 15 miles

-- or 10 miles -- was appropriate. The ASLB's denial of Contentions 22.A, B and C precluded Appellants from ever even addressing the impact of local conditions upon the size of the EPZ. That clearly constituted error.

6-LILCO also mistakenly asserts that Appellants demonstrated no prejudice resulting from the Board's refusal to admit Contention 22 because Appellants' " evidence on Contention 22 was substantially heard during litigation of other contentions." LILC0 Brief at 12-13. This argument must be rejected. Certainly, evidence concerning some local conditions such as evacuation shadow, winds, and snowstorms was admitted in the context of other contentions. However, it is wrong to suggest that the discussion of such facts in the context of contentions about LILCO's dose projection procedures, its evacuation time estimates, or mobilization of its workers, could substitute for litigation of the issue raised in Contention 22 -- the size of the Shoreham EPZ. Appellants were never permitted to put in any evidence or to make any arguments to the ASLB (aside from that on the limited issue in Contention 22.D) concerning the relationship between local conditions and tFs location of the EPZ boundary. The ASLB's arbitrary and erroneous denial of admission to Subparts A, B and C of Contention 22 precluded any such discussion.

C. The ASLB's Error in Denying Discovery Against FEMA LILCO asserts that Appellants "have not even attempted to establish compelling need" for the discovery concerning the bases for FEMA's RAC conclusions, because, according to LILCO, Appellants did not cite "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) revealed that they had relied to an inordinate degree on others' views." LILCO Brief at 21.

This ignores the facts. The FEMA witnesses testified that there were

I. .

l many differences of opinion among RAC members, but Appellants were precluded from discovering the nature of the dissenters' opinions, their bases, the dissenters' agency affiliations, or what materials were

! reviewed by RAC members. Having been denied information, Appellants can be no more specific in their demonstration. Clearly, however, the Appeal Board already recognized Appellants' entitlement to the information

- sought;5 the RAC cenclusions were the sole basis of the FEMA testimony which constituted a rebuttable presumption in this case. See PID, 21 NRC i

I at 655. The ASLB's denial of Appellants' discovery rights constituted a denial of Appellants' due process right to a hearing under Section 189 of the Atomic Energy Act.0 l

l See e g , Attachments.to Suffolk County's Motion to Compel Production of Documents by FEMA, and to Postpone the Cross Examination of FEMA's Witnesses and For Issuance of Subpoenas to the Members of the RAC (July 6, 1984) as follows for examples of FEMA's counsel's instructions to witnesses not to answer, and witnesses' inability to answer, questions on these matters: Kowieski Depo. Tr. at 45-47, 51, 54-56, 103, 104-108, 117-22; Baldwin Depo. Tr. at 35-45, 145-52, 155-56; Keller Depo. Tr. at 42, 69-70.

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

ALAB-773, 19 NRC 1333 (1984).

6 Appellants do not agree with this Board's ruling in ALAB-773 that the FEMA /RAC review process is entitled to any protection from full discovery. The Atomic Energy Act guarantees Appellants a right to a fair hearing on all material issues. Sy , e.g., Union of Concerned Scientists

v. NRC, 735 F.2d 1437 (D.C. Cir. 1984), cert. denied, 105 S.Ct. 815 (1985). When one participant in a hearing is permitted to present evidence which is accorded special weight (here a " rebuttable presumption") but other participants are not permitted to probe the bases for that participant's views, the right to a fair hearing is clearly being violated.

a D. Protective Actions for Schools Neither LILC0 nor the Staff address the central school issue: the ASLB's findings amount to speculative assertions that certain actions "would be possible," not that there is reasonable assurance that actions, adequate to protect schoolchildren, in fact could and would be taken in a Shoreham emergency.

LILCO attempts to make much out of the fact that LILCO submitted to the ASLB some school early dismissal plans, and argues that existing plans are better than agreements. Sy LILCO Brief at 22-26. By this means, LILCO attempts to avoid the NRC precedent cited by Appellants to show the error of the ASLB's decision approving on going efforts to enlist assistance, unadopted plans, and proposed ad hoc responses, as satisfying the regulations. See Appellants' Brief at 27-33. Certainly, the circumstance where a school has adopted a plan designed to deal with a radiological emergency and is prepared to implement that plan, would be at least as good as one where a school has agreed to implement a plan.

However, nylther circumstance exists here. The only " plans" that exist are for early dismissals in situations ne t involving radiological emergencies, and the school officials *.esponsible for implementing such plans testified that such plans coulr'. not and would not be implemented effectively by them during a Shoreh am emergency.8 Further, there exist Appellants' October 23, 1985 brief (" Appellants' Brief") explains why such findings based on "hopad for" responsen, and approval of, at best, ad_ hoc responses do not measure up to the regulatory standards.

8 See, e A , Petrilak (Schools), ff. Tr. 11,001, at 2-3, 7-8; Tr. 1102-03 (Muto); Jeffers & Rossi (Schools), ff. Tr. 11,001, at 3, 7-8; Tr.

11,013 (Jeffers). See also Purcell et al., ff. Tr. 10,727, Att. 6 (resolutions by eight schools and districts to same effect).

no plans whatsoever to deal with evacuation, and no plans which address what would be involved in implementing a sheltering recommendation during a Shoreham emergency. And, no schools have adopted or agreed to implement any proposal or plan that LILCO may come up with or offer to them. Clearly, there is no basis for predicting anything other than an ad hoc response by school officials to a Shoreham accident. A prediction of ad hoc responses cannot be the basis for the reasonable assurance finding required by the NRC's regulations.

For example, LILCO's reference to so-called " school plans" which allegedly " provide assurance" that sheltering during a Shoreham emergency would not be an ad hoc measure (see LILCO Brief at 24-25) include: one

~

" plan" which conHsts solely of tie ~ statement that "the Chief School Administrator may institute a " Stay Where You Are" plan when in his/her opinion the safety of the children is better served" and nothing else; one " plan" which states only that "all elementary and secondary pupils will remain in their respective buildings" and "Riverhead High School and Junior High School have been designated as fallout shelters"; one " plan" which consists solely of the statement "line up in the main corridor of the school" and nothing else; and recommendations to stay away from windows to minimize the effects of a nuclear blast. Cordaro et al., Tr.

5/30/84 Vol. II, Att. 25, 26A, 29, 33.

This Board must reject LILCO's assertion that a New York State requirement for emergency plans renders the Susquehanna case inapplicable (Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-82-30, 15 NRC 771, s_ua u sponte review, ALAB-702, 16 NRC 1530 (1982)) and justifies the lack of actual school plans for a Shoreham emergency. See LILCO Brief at 23-24. First, while New York schools must have plans to deal with contingencies such as snowdays, New York school officials testified that State directives do ny require them to have plans for a nuclear emergency at Shoreham. See, n ,Tr.

11,053-56 (Jeffers). Second, this Board cannot ignore the facts: no schools in the Shoreham EPZ have planned to deal with a shoreham emergency. The Susquehanna decision and other cases cited by Appellants stand for the principle that there must be evidence of actual preparedness, not just assertions that there is a paper requirement for preparedness.

In ALAB-818, this Board rejected LILCO's " realism" argument, noting that ad hoc response was the problem at TMI and that even if it were assumed that the State and County would respond, "we cannot assume that (footnote continued)

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LILCO's assertion that the ASLB was correct in approving LILCO's lack of agreements with school bus drivers (LILCO Brief at 27-28) must also be rejected. First, Limerick does not support LILCO's position.

In Limerick, there existed agreements between bus providers and school districts which expressly referenced driving during an evacuation caused by an emergency at the Limerick plant. See 21 NRC at 1270-73. There are no such agreements here. Second, contrary to LILCO's assertion (LILCO 3

Brief at 28), the Indian Point case cited by Appellants is directly on point. Here, as in Indian Point, there are no agreements with bus companies, or with drivers, to implement an evacuation, or an early dismissal, during's radiological emergency. '

E. Special Facilities LILCO and the Staff merely reiterate the ASLB's assertion that such facilities "are not support organizations"; however, neither LILCO, the (footnote continued from previous page) such response will be coordinated in advance and rehearsed." Slip. op.

at 37-38. That holding similarly requires a finding that ad hoc school responses cannot be found to be adequate.

S3 LILCO Brief at 28, citing Philadelphia Elec. Co. (Limerick Generating Station, Units 1 and 2), LBP-85-14, 21 NRC 1219, 1276 (1985).

I Consolidated Edison Co. (Indian Point, Unit 2), LBP-83-68, 18 NRC 811 (1983).

14 The numbers of schools and districts which would be impacted by a Shoreham emergency must be clarified. Seventeen districts are covered by LILCO's Plan; 11 have schools in the EPZ and 6 have no schools in the EPZ but have pupils who live in the EPZ (and the Plan assumes that protective actions would be taken for those children). In addition, there are 2 parochial schools inside the EPZ, 3 parochial schools outside with students who live in the EPZ, and 13 nursery schools covered by the Plan.

Cordaro et al., ff. Tr. 9154, at 12; Plan at App. A, 11-10 and Fig. 4.

These figures do not take into account the ASLB's requirement that additional schools be included in the EPZ.

4 Staff, nor the ASIA provides any legal authority for that assertion.

And, neither the Staff nor LILCO addresses the precedent cited in Appellants' Brief (see Appellants' Brief at 35, n.45) for the proposition that agreements with such facilities are required.

The Staff's argument that the ASLB should be affirmed because Appellants cite no evidence that "these people would behave in a manner inconsistent with [the] goal (of protecting themselves]" (Staff Brief at

35) is a mischaracterization of the regulatory standards. First, LILCO has the burden of proving that it has satisfied the regulations, including those related to agreements to perform tasks assigned in the Plan. The burden of proof is not on Appellants. Second, what LILCO must show is that adequate protective actions can and will be taken; it is not sufficient to assert the hope, or to suggest the possibility, that people would not behave '.n a manner inconsistent with what LILCO defines as the appropriate way of protecting themselves. In this record, there is no evidence which shows that adequate protective actions could or would be taken by special facilities. In the absence of plans adopted by such facilities and agreements from them to implement the LILCO Plan, there is no basis to find for LILCO on Contention 24.J.

F. LILCO's Lack of Credibility LILCO asserts that if " low pre-emergency credibility" were dispositive, "no emergency plan would work because no one is ' credible to everyone at all times . . . .'" LILCO Brief at 35. This attempt to turn the factual question presented by Contention 15 into a theoretical issue of global applicability must be rejected. Only the Shoreham case is

. 12 -

l before this Board; the facts here are that the utility, with conceded very low credibility, is proposed to be the only source of information and protective action recommendations to the public. The ASLB's ruling and this Board's review must be based upon the specific evidence presented in this case, not on the irrelevant generalities flaunted by LILCO. As demonstrated in Appellants' brief, the evidence in this case can support no finding other than one that in light of LILCO's lack of credibility, there is no reasonable assurance that LILCO's Plan could or would be implemented.

LILCO's statement that its Dr. Mileti asserted that some "research" supported his theory about the hypothetical application of so-called emergency message principles (LILCO Brief at 36, n.53) must also be rejected. First, LILCO ignores what even the ASLB recognized. Evidence (as opposed to more theoretical hypothesizing) necessary to support the Mileti theory was not presented. PID, 21 NRC at 690. More importantly, LILCO ignores the dispositive point: the ASLB made no finding that the

\

Mileti principles have been, would be, or could be applied in implementing the LILCO Plan, or that they would or could be applied

" properly" so as to result in the hypothesized public willingness to obey LILCO protective action recommendations.

G. The Evacuation Shadow Phenomenon LILCO's only response to Appellants' argument that there was no evidence presented to demonstrate that the factors which led to the evacuation shadow at TMI would not be present at Shoreham (see Appellants' Brief at 48-49) was the Ginna accident. LILCO ignores,

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however, the significant differences between the Ginna emergency response situation and a likely Shoreham emergency, and the evidence that given LILCO's acknowledged lack of credibility and the lack of governmental involvement in implementing LILCO's Plan in contrast to the situation at TMI, it is likely that a Shoreham evacuation shadow would be even larger than that which occurred at TMI. See Appellants' Brief at 50.

In addition, LILCO's argument that to conclude that the evacuation shadow would be a problem during a radiological emergency would be

" contrary to the planning criteria NUREG-0654" (LILCO Brief at 39) is without basis. LILCO fails to reference anything in NUREG-0654 to support its bald assertion that it "is premised" on any proposition concerning the shadow phenomenon; Appellants could find no such reference in that document. Moreover, the Waterford ASLB also found no such

" premise" in NUREG-0654.1 And, any such " premise," even if one existed, could not take precedence over factual evidence presented to the Shoreham ASLB. That evidence demonstrated the likelihood of a substantial evacuation shadow in a Shoreham emergency, and the ASLB had no basis for its contrary conclusion.

15 The observation of the Waterford ASLB referenced by LILCO is as follows:

[B]oth FEMA's and the Staff's testimony demonstrate that the planning criteria of NUREG-0654/ FEMA REP-1 (Rev. 1) . . . are designed to provide orderly, safe evacuation and thereby minimize hysterical reactions and potential chaos.

Louisiana Power & Light Co. (Waterford Steam Elec. Station, Unit 3),

LBP-82-100, 16 NRC 1550, 1562 (1982).

- Finally, neither LILCO nor the Staff comes to grips with Appellants' argument that the ASLB's rulings on Contention 23 are circular and speculative. The various assertions that the ASLB found behavior in a nuclear emergency to be the same as behavior in other emergencies, that polls are not reliable, and that there was not an evacuation shadow during the Ginna incident ignore that the ASLB's finding on Contention 23 was expressly contingent upon "there being clear non-conflicting notice and instructions to the public at the time of an accident." PID, 21 NRC at 670.16 Both LILCO and the Staff ignore Appellants' argument that the ASLB's contingent finding premised upon unsupported assumptions does not meet the regulatory requirements.

H. Role Conflict LILCO asserts that NRC precedent "has rejected Appellants' theory of role conflict," and that such p ecedent should be dispositive because there is nothing "even alleged to be . . . different about role conflict on Long Island from role conflict elsewhere." LILCO Brief at 46. First, the premise of this LILCO argument is incorrect. What was litigated in this case was not some " theory" of role conflict; rather, what was litigated was factual evidence concerning how individuals, expressly relied upon in the LILCO Plan, would likely react in an actual emergency.

Therefore, even if other NRC decisions have " considered" other " theories" of role conflict, they are not relevant to the factual questions presented in Contention 25 and litigated by the parties in this case.

16 "If for any reason confused or conflicting information was disseminated at the time of an accident the Board accepts that a large excess evacuation on Long Island could materialize." PID, 21 NRC at 670.

Similarly, because the issue presented in Contention 25 is a factual one involving particular individuals on Long Island (e g , school bus drivers, teachers, and meter readers), LILCO's defense of the ASLB's refusal to consider Appellants' " lay opinion evidence" (LILCO Brief at 50-52) must be rejected. The ASLB ultimately might have assigned more weight to the testimony of LILCO's sociologist Dr. Mileti than to that of Appellants' proffered witnesses who (a) are proposed to be directly involved in implementing LILCO's Plan (i.e., teachers), and (b) testified about actual statements of trained emergency workers like those allegedly relied upcn by LILCO (i.e., volunteer firemen); LILCO's argument, however, does not justify the ASLB's refusal to permit Appellants even to submit that evidence for its consideration. Moreover, there is no reasoned basis for LILCO's assertion that individuals who actually would be called upon to respond in an emergency situation are not competent to provide factual information concerning their likely actual response. +

Finally, LILCO's and the Staff's reliance upon Ohio State Disaster Research Center ("DRC") data to support the conclusion that role conflict would not cause the persons relied upon by LILCO to attend to the needs of their families prior to or in lieu of implementing LILCO's Plan (LILC0 Brief at 47-48; Staff Brief at 52-53) is seriously misplaced. The DRC research paper showed that of 413 workers who were part of established Furthermore, in arguing that survey data constitute useless and irrelevant " lay opinion" evidence, LILCO never deals with the holdings to the contrary in Cincinnati Gas & Electric Co. (Zimmer Nuclear Power Station, Unit 1), ALAB-727, 17 NRC 760, 772-73 (1983) and Duke Power Co.

(Catawba Nuclear Station, Unit 1), LBP-84-37, 20 NRC 933, 951 (1984) which are cited in Appellants' Brief.

emergency organizations for six events, 92 of them responded to an emergency by not performing their assigned emergency work -- they either abandoned their jobs, temporarily left them, delayed reporting to them, went to their families before reporting, or waited to see if they would be called to work. SC Ex. 1. Thus, 22 percent of the trained members of emergency response organizations either took actions during the emergency that kept them from performing their emergency roles, or did not perform them because they had not been expressly told to report. Furthermore, of those people who were not already on the job at the time of the s emergency, 33 percent responded by not performing their emergency jobs; of those alreedy on the job, from 3 to 23 percent actually left their jobs depending on the emergency (3 percent left following the tornado; 23 percent left following the earthquake). Id., Tr. 1033-48 (Dynes).

Finally, with respect to those categorized in the DRC paper as having performed their emergency jobs, there was no inquiry, and therefore there are no data, as to how soon after they learned of the need for an emergency response they reported to work. Tr. 1037-38 (Dynes). Thus, the DRC study in fact supports Appellants' position that role conflict e

may constitute a serious problem during a Shoreham emergency. Tr. 1398 (Erikson).I' 1

I They were an earthquake,_a flood, a hurricane, and three tornados.

Tr. 1019 (Dynes).

19 Furthermore, the following facts also lessen the support provided by the DRC research for LILCO's position. First, th9 paper was prepared in 1976, never progressed beyond a preliminary .drsft stage, and was never pu'alished. Second, although the draft was pu,rportedly based on 6000 interviews conducted over a 10-year period with emergency workers involved in 150 disasters, only six evm ts were' examined in detail. None (footnote continued)

-; % .\

4 I 6 i

I. Evacuation Time Estimates LILCO asserts that Appellants' argument that traffic along the Sunrise Highway must be considered in calculating evacuation time estimates is merely an " attempt to expand the 10-mile planning zone" and therefore improper. LILCO Brief at 68-69, n.99. This mischaracterizes Appellants' position.20 In fact, the Sunrise Highway forms the southern boundary of the LILCO EPZ for eight miles; it would be a major route for thousands of persons who would evacuate -- not just from the east end of Lo'g n Island outside the EPZ, but also from inside the EPZ. Polk, ff. Tr.

2909, at 9. Thus, the Sunrise Highway is already part of the EPZ.

(footnote continued from previous page) involved a radiological emergency. Third, the interviews were primarily with persons described as authorities and administrators, Tr. 1423-26 (Erikson), and the interviews consisted of only one question -- where were you and whet were you doing during the emergency? Tr. 1026-27 (Dynes). Fourth, since virtually all the interviews were conducted with authorities or administrators of emergency organizations, there were few, if any, interviews with school bus drivers, teachers, and other similar types of persons expected to take on major responsibilities in a Shoreham emergency. Therefore, the workers relied upon by LILCO and the people interviewed by DRC have little in common. Tr. 1423-26 (Erikson). Fifth, post-emergency assertions by administrators as to the performance and ability of their agencies to perform are likely to be somewhat biased and self-serving, and may not accurately reflect the true situation in the fie ld .' Sixth, it is important to distinguish between emergencies in which people are expected to report for work during the impact phase (such as an assumed Shoreham accident) and disasters whose impact has ended by the time persons are expected to provide assistance (those in the DRC study). Data on response to an emergency after the immediate danger has passed provide no basis to assume that the same response would cccur during an ongoing emergency r, nile the danger persists. Tr. 1400-02 (Erikson). SS also Tr. 1424-26 (Erikson). Seventh, there was no evidence that accepted methodt of research or analysis were used in

gathering or analyzing the CRC data.

n! ,,

'0 The NRC Staff asserts that Appellants' evacuation time estimate model assumed a 20-mile EPZ. Staff Brief at 68, n.57. This is false. The model was based upon LILCO's proposed 10-mile EPZ. Polk, ff. Tr. 2909.

t

.q

0 s

s i Neither the ASLB nor LILCO offers any reasoned justification for excluding from time estimates the traffic which would be on that eight-mile stretch of highway. Moreover, contrary to LILCO's and the Staff's assertions, traffic congestion on Sunrise Highway would impact not just the ability of people from outside the EPZ to evacuate, but it would also substantially impact traffic inside the EPZ. Polk, ff. Tr. 2909 at 9.

Thus, the argument that Appellants' time estimates which took into account Sunrise Highway traffic do not involve evacuees within the EPZ but rather just those outside the EPZ is plainly incorrect. Failure to include traffic along the Sunrise Highway creates an underestimation of evacuation times and a material distortion in a decisionmaker's evaluation of whether evacuation should be the recommended protective I

action.

J. Protective Actions in Connecticut LILCO asserts that Contention 24.R "does not raise any issue regarding the adequacy of Connecticut's emergency response plan," but instead statqs merely that "there is no indication from Connecticut that it would respond to protect its citizens in an emergency." LILCO Brief at 94. Thus, LILCO. argues, Appellants cannot properly assert that the ASLB erred in failing to review the Connecticut Plan and in failing to find that Connecticut could and would implement adequate protective

'l The ASLB's treatment of the Sunrise Highway is all the more inexplicable because it is inconsistent with its action on Contention 22.D. On Contention 22.D, it ordered LILCO to include in the EPZ several schools located over 10 miles from the plant, ruling that otherwise the EPZ boundary would not be justifiable. But on traffic issues, the ASLB held blindly to a rule that excluded 8 miles of a major evacuation route that is already in the iPZ.

actions. Id. LILCO's argument must be rejected. When Contention 24.R was admitted by the ASLB, it was " consolidated" with Contention 79, which was also admitted by the Board. Contention 79 stated:

The Plan fails to provide for protective actions for the portion of the ingestion exposure pathway in the State of Connecticut. The Plan thus fails to comply with 10 CFR $$ 50.47(a)(1),

50.47(b)(1), 50.47(b)(3), 50.47(b)(10),

50.47(c)(2), and NUREG-0654 $ II.J.11.

Special Prehearing Conference Order, August 19, 1983, at 24. Clearly, the question of whether planning for protective actions in the State of Connecticut satisfies the criteria in Section 50.47 is part of the issue raised in Contention 24.R as consolidated with Contention 79.

In addition, contrary to the NRC Staff's assertion (Staff Brief at

!- 91), a statement by the State of Connecticut that it would take

" appropriate" actions is no substitute for a factual finding by the ASLB,

- required by NRC regulations, that plans'it has reviewed would result in implementation of adequate protective actions. This is particularly true since Connecticut, despite the letters touted by LILCO, refused to agree to implement the LILCO Plan (see Tr. 13,877-78 (Cordaro)), which is the only plan presented to the NRC for review. Clearly, without ever having reviewed any Connecticut plan, the ASLB could not make any findings concerning its adequacy or implementability. See Pacific Gas & Elec. Co.

22 In addition, in ru, ling on the adequacy of an offsite plan, including whether plans for the ingestion exposure pathway satisfy regulatory requirements, the ASLB had an independent obligation to make sure plans are adequate for the entire EPZ, not just that portion in the State of New York. The ASLB had no basis to find that adequate protective-measures could or would be taken in any portion of the ingestion pathway which lies in the State of Connecticut since the ASLB has no knowledge of what the State of Connecticut would do in a Shoreham emergency. See Appellants' Brief at 95-97.

) (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-580, 11 NRC 227 (1980).23 Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788

/

,,d 0Y Hefbekt H. Brown Lawrence Coe Lanpher g

Karla J. Letsche Michael S. Miller KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk County gl ~ /hLdAL & ,

Fabian G. Palomino /

.Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 The NRC Staff's assertion that Appellants' argument concerning the unavailability of the Connecticut Plan for ASLB-review must be rejected because that argument was not made below is incorrect. See Suffolk County and State of New York Proposed Findings of Fact and Conclusions of Law on Offsite Emergency Planning (Oct. 26, 1984) at 521-23.

t.

. 21 -

Robert Abrams

Attorney General of the State of New York TWo World Trade Center New York, New York 10047 Attorneys for Governor Mario M.

Cuomo, and the State of New York f./b Q /

"' Q 'I (tsphen / . Latham Twomey, atham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton January 6, 1986