ML20147D718
| ML20147D718 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/15/1988 |
| From: | Latham S, Mark Miller, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20147D722 | List: |
| References | |
| CON-#188-5366 OL-3, NUDOCS 8801200273 | |
| Download: ML20147D718 (44) | |
Text
es Sb)b G
s e
COLKETED JanuarFf61988
'M JAN 19 All:27 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIQyggt gp WRGAM, 00CKEilNU ^ mi<vicl.
BRANCH Before the Atomic Safety and Licensing Boar _d.
~
)
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 RESPONSE TO LILCO'S MOTION FOR
SUMMARY
DISPOSITION OF THE HOSPITAL EVACUATION ISSUE I. INTRODUCTION Suffolk County, the State of New York, and the Town of Southampton (hereafter, the "Governments") hereby respond to LILCO's Motion for Summary Disposition of the Hospital Evacuatica Issue, dated December 18,1987 (hereaf ter, j
"LILCO's Motion"). For the reasons set forth below, LILCO's Motion should be denied.
There are four basic reasons why LILCO's Motion should be denied. First, it is premature.
In keeping with LILCO's recent practice, LILCO seeks to use summary disposition as a vehicle to introduce new provisions of LILCO's Plan, and then to foreclese any meaningful scrutiny of the details of the revised Plan. As with LILCO's recent motions for summary disposition of the new schools evacuation 8801200273 080115 PDR ADOCK 05000322 O
l
w
/
and emergency broadcast system ("EBS") proposals put forth by LU cod / LILCO's Motion unveils for the first time, in skeletal, summary form, entirely new information about its Plan, unilaterally declares that the new information presents no disputed facts, and, accordingly, simultaneously requests summary dispositien on the adequacy of LILCO's new proposal. The Board has already twice rejected th's uss of summary disposition. See Memorandum and Order (Ruling on Applicant's Motion of November 6,1987 for Summary Dispos!. tion of the WALK Radio Issue),
Dec. 21,1987 (hereafter, "December 21 Order"), at 3-4; Memorandum and Order (Ruling on Applicant's Motion of October 22, 1987 for Summary Disposition of Contention 25.C ("Role Conflict" of School Bus Drivers)), Dec. 30,1987 (hereaf ter, "December 30 Order"), at 5. The Board should do so once again.
Second, in significant respects, LILCO's Motion is premised upon LILCO's claim that, since sheltering is the primary protective action for hospitals, LILCO is somehow released from any obligation it would otherwise have to plan for the poss.bility that hospitals may need to be evacuated in the event of a Shoreham emergency. This argument, however, has already been rejected by the Appeal Board and the Commission. The Appeal Board rejected LILCO's prior planning efforts for the evacuation of hospitals as ad, hoc. and remanded the issue to the Licensing Board with the instruction that LILCO was to provide an evacuation plan consistent in detail with the planning requirements imposed for other special facilities within the EPZ. h Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), AIAB-832, 23 NRC 135,156-57 (1986). The Commission agreed,
.I./
Seg. LILCO's Motion for Summary Disposition of Contention 25.C ("Role Conflict" of School Bus Drivers), Oct. 22, 1987; LILCO's Motion for Summary Disposition of the WALK Radio Issue, Nov. 6,1987..
+
concluding that evacuation should not be prejudiced by LILCO's failure to plan in advance. Lona Island Limhtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-87-12,26 NRC
, slip op, at 22 (Nov. 5,1987).
LILCO's Motion reveals that its planning efforts for hospitals have advanced little beyond what was found to be insufficient by the Appeal Board and the Commission.
In fact, LILCO repeatedly asserts that it still proposes to rely substantially on the procedures ani overall planning objectives which have already been rejected. LILCO's stubborn efforts to repackage and resubmit an approach which has previously been four.d deficknt by the Appeal Board and the Commission must be rejecte.
Third, LILCO's Motion is defective on its face, in that it fails to set forth material facts as required prior to che issuance of a ruling in its favor. LILCO's "Statement of Material FacN as to Which LILCO Contends There Is No Genuine Issue to be Heard" (hereafter, "L:LCO's Statement of Material Facts") does not comply with 10 CFR $ 2.749(a), and relegates the Governments to challenging not Lash but mere assertions by LILCO of what is contained in its "previewed" but as yet unrevealed and unseen Plan revisions. The Paard cannot admit as "undisputed
(
fact" LILCO's new hospital evacuation proposal, which has never been seen or reviewed by any othar party, the Board, or FEMA. To do so would be contrary to the Atomic Energy Act, NRC regulations, and the Appeal board's and Commission's remand instructions. o
o Finally, LILCO asserts that under 10 CFR $ 50.47(c)(1), any failure to comply with the emergency planning regulations set forth in 10 CFR $ 50.47(b) is not significant and may be overlooked by the Board. This argument hat.aultiple defects. To the extent that in making the Legument LILCO attempts to rely utnn its old, fundamentally ad, h_qs. hospital plan that was the subject of litigation in 1984, that clearly is improper: LILCO has told the Board and parties that it is now going to revise that plan in many ways. Thus, the old hospital plan has apparently been abandoned by LILCO.
The Board certainly cannot purport to make Section 50.47(c)(1) findings on a plan upon which LILCO no longer relies.
Moreover, LILCO's reliance on Section 50.47(c)(1) ignores the Appeal Board's finding that the emergency planning regulations require prior planning for a range of protective actions, including the possibility of an accident requiring the planned evacuation of the hospitals within the Shoreham plume exposure EPZ. 'Ihe Appeal Board found that LILCO had relied solely on an a_j.ho_c.reeponse in the event that a l
hospital evacuation was necessary, and concluded that this treatment of the hospital evacuation issue did no+. comport with the applicable regulations. ALAB-832,23 NRC at 157.
l The Commission ild not disagree with the Appeal Board. Yet, LILCO, with disregard for the purposes of the regulations, strains the Commission's reference to 10 CFR $ 50.47(c)(1)(age CLI-87-12, slip op, at 23) and requests this Board to make sweeping findings that LILCO's deficiencies are insignificant, despite no showing by I
LILCO that its Section 50.47(c)(1) claims are true. In fact, it is clear that LILCO hss ignored critical emergency planning guidance l l
m
f LILCO argues that the EPZ hospitals will not get a heavy radiation does because they are far from Shoreham. But it is hornbook law -
as the Appeal Board noted in ALAB-832 - that one mmt assume the occurrence of a very serious accident.
Depending on the wind conditions, it is. tear that one or more of the hospitals could get -
and indeed must be assumed to get - a heavy dose.
LILCO enunciates and relies upon a clearly erroneous standards that it will consider hospital evacuation only if an "excessive" dose is projected, ids one over 5 rems. Sag,LILCO's Motion at 10,11. But the upper Protective Action Guideline ("PAG") limit is not 5 rems, but rather 1-to-5 rems. It is clearly improper for LILCO to have a plan for hospital evacuation only at the 5 rem level.
ne NRC's regulations are not premised on any specific le,el of acceptable dose. Rather, they are premised on dose savinns or d_o_ng, avoidance. The regulations therefore require the development of a range of protective actions, so that planners will be ready to implement the action that can best achieve dose savings. See 10 CFR
$ 50.47(b)(10). LILCO's hospital approach, however, decides un front, that only sheltering will be used, unless a 5-rem limit is reached.
his approach ignores the fact that at least some hospital patients (for example, maternity patients, infants, or other mobile patients) could avoid all dose, if there were a workable hospital evacuation plan (as opposed to 31h_2s, after-the-fact measures).
, l l -
~ _ -.
4 r
In the absence of an acceptable, approved and implementable hospital plan, LILCO is in no position to judge whether dhes evacuation ever hoould be used. Since LILCO's old, dhes.P an has no time estimates, l
for example, it is impos:ible to know (or predict) how long evacuation would take and whether it would lead to dose savings.
In short, LILCO's Section 50.47(c)(1) argument is a new LILCO invitation for the Board to commit error.
It is.not premised on analyses showing that the regulstions' dose savings purposes would be served. Rather, it is premised on LILCO's view that doing nothing and allowing persons to get a 5 rem dose is insignificant. Bu2 there is no "acceptable dose." Eng. EPA Manual of Protective Action Guides, at page 1.1.
LILCO has failed to demonstrate that its lack of planning and reliance upon d hes. measures would result in insignificant risk.
Section 50.47(c)(1) therefore provides no basis to disregard the rules.
I i
Accordingly, LILCO's hospit:.1 proposal must be found to be wholly i
inadequate.
It does not comply with Section 50.47(b), and Section 50.47(c)(1) l I
provides no loophole. The emergency planning regulations are premised on pre-l accident planning and are not satisfied by reliance on d hoc response measures.
Guard v. NL*. 753 F.2d 1144 (D.C. Cir.1985); age ALAB-832, 23 NRC at 155-57 and n.78. In essence, LILCO merely argues in its Moiton that detailed planning for evacuation of the EPZ hospitals is unnecesary, because the need for such I
evacuation is unlikely. However, not only has that precise argument already been rejected by the Appeal Board and the Commission in this case, but it is well settled that the likelihood or probability of actually having to implement an evacuation
J during an emergency -is irrelevant to the determination of the adequacy of an emergency plan and its compliance with NRC regulations.
Sam. Philadelohta Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819,22 NRC 681, 713(1985), review declined. CLI-86-05, 23 NRC 125 (1986). LILCO's failure to present detailed planning for a hospital evacuation precludes any finding that the deficiencies in LILCO's planning are not significant for the operation of Shoreham.
II. B A C K G R O U N D LILCO's Motion has its roots in the Board's April 17, 1985 Partial Initial Decision. Sag.Long Island Llahtina Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-85-12, 21 NRC 644 (1985) (hereafter, "PID"). The LILCO Plan litigated in the 1984 emergency planning hearings did not contemplate the evacuation of the hospitals in the vicinity of the Shoreham plant at the same time as the other facilities and the public in the EPZ, even assuming that an evacuation was ordered for the entire EPZ. PID, 21 NRC at 8298 Instead, LILCO "planned" that the hospitals would shelter their patients as the primary protective action.
R.
Evacuation, even if believed to result in lower dose savings, would not be attempted until the rest of the EPZ had been evacuated.
2/
LILCO incorrectly suggests that only three facilities are at issue in this hospital evacuation remand proceeding: John T. Mather Memorial Hospital, St.
Charles Hmpital and Central Suffolk Hospital. Sam LILCO's Motion at 3. In fact, LILCO ignores a fourth facility, located inside the EPZ - the Suffolk County Infirmary. Throughout the emergency planning proceeding, the Suffolk County Infirmary has been treated as an EPZ hospitall LILCO's Plan lists the Suffolk County Infirmary as an EPZ hospital, 333. OPIP 3.6.5, Att. 2 at 5, and states prominently that the Suffolk County Infirmary will be accorded the same treatment j
as the other three EPZ hospitals. Sam, OPIP 3.6.5 at 2.
'Ihus, the evacuation i
planning and preparedness at issue here must address the evacuation of patients in the four facilities treated as "hospitals" in the LILCO Plan.
j L
In the PID, the Licensing Board determined that if, during a Shoreham emergency, the need for evacuation of the EPZ hospitals arose, arrangements for transportation and relocation of patients could be made d hes, while the emergency was in progress.
PID, 21 NRC at 840, 844-45 (evacuation of the hospitals is "a backup protective action" under LILCO's Plan). If the decision were made to evacuate the hospitals - a decision which would be made by the hospital administrators, not LILCO - the LILCO Plan called for the use of the same ambulances and ambulettes which would be used to evacuate the homebound and special facilities, such as nursing and adult homes, within the EPZ. The homebound and special facilities were to be evacuated first, however, since, according to LILCO, they are generally located closer to Shoreham. PID, 21 NRC at 829, 844-
- 45. LILCO had no means planned or d hes.- for early evacuation of hospital patients. In short, contrary to the requirements of 10 CFR $ 50.47(b)(10), LILCO had failed to develop a "range of protective actions" for hospital patients.
Despite the limited and a_d. hes. nature of LILCO's hospital planning, the Licensing Board found LILCO's proposal for the evacuation of the EPZ hospitals to be adequate.
Indeed, notwithstanding LILCO's failure (1) to obtain letters of agreement with hospitals outside the EPZ concerning the transfer of patients to such potential reception hospitals, (2) to provide for transportation of the EPZ hospital patients until the homebound and special facility residents had been evacuated, (3) to calculate evacuation time estimates for the hospitals, or (4) to predetermine the circumstances under which the EPZ hospitals - or even some patients of those hospitals - would be evacuated, the Licensing Board concluded 0 D
0 I
that LILCO's Plan was adequate. Sam, bgu PID, 21 NRC at 829, 837-38, 840 and l
846.
i The Appeal Board reversed, finding LILCO's hospital evacuation planning to e fundamentally ad hes.and contrary to regulatory requirements. ALAB-832, 23 NRC at 156-57.
The Appeal Board noted the Licensing Board's contrasting treatment of hospitals and nursing / adult homes,3_/ and found no sufficient reason for providing hospital patients with less protection than nursing / adult home residents. The Appeal Board reasoned as follows:
Assuming, without deciding, that the probability of a hospital evacuation is as low as the Licensing Board believed, it does not follow that the emergency response plan need not concern itself with how such an evacuation would be carried out if it should be directed....
(T]he Commission's regulations and the guidance contained in NUREG-0654 provide sufficient reason for treating hospital patients la the same manner as the residents of nursing / adult homes insofar as planning for evacuation and relocation is concerned.
First of all, although 10 CFR $ 50.47 does not itself address the matter, NUREG-0654 defines (at 4-2) the term "special j
facility" to include "institutions such as hospitals and nursing homes." And there is not the slightest suggestion anywhere in that document that, as a class, hospital patients are not entitled to the benefits of precisely the same emergency planning as are those individuals conf:ned to nursing / adult homes.
With respect to the necessity that the emergency response plan concern itself with the transportation of hospital patients to reception hospitals outside of the EP2, the regulations do 3/
With respect to evacuation of nursing and adult homes within the EP2, the Licensing Board found the Plan deficient for failure to designate reception centers for special facility residents. PID, 21 NRC at 840. The Licensing Board concluded tLat "(i}t will be necessary for LILCO to identify reception centers for special l
facilities that could be evacuated in an emergency at Shoreham and to support this identification with letters of agreement prior to operation of Shoreham at full I
power." M, (emphasis added).
9-
=
come into play and counter any thesis that such transportation requires no pre-planning but can be left to ad, beg, resolution once the emergency has occurred. Specifically, in connection with its emergency plan, an operating license applicant must provide "an analysis of the time required to evacuate and for taking other protective actions for various sectors and distances within the plume exposure pathway EPZ for transient and permanent populations." Such an analysis cannot be made l
for the hospitals without an awareness of the extent of the transportation that might be required to remove the patients from the EPZ, as well as an understanding of how and when the evacuation would be accomplished. Yet the proposal to deal with transportation requirements only after the need arises supplies no insight on either score....
e**
In sum, the Licensing Board should have required the applicant to fulfill the same planning obligations with regard to possible hospital evacuation as the Board imposed in connection with the nursing / adult homes. We therefore remand and direct the Board to rectify this error.
ALAB-832,23 NRC at 155-57 (footnotes omitted)d/
Thus, the Appeal Board remanded the issue of the adequacy of LILCO's plan for the evacuation of the EPZ hospitals to the Licensing Board, holding that LILCO must fulfill the same detailed planning obligations with respect to hospital l
evacuation which the Licensing Board had demanded for nursing and adult homes.
j Sag. ALAB-832,23 NRC at 156-57.
r The Commission agreed with the Appeal Board that "the regulations require
[
[LILCO] to fulfill the same planning obligations with regard to hospital evacuation as the Licensing Board imposed in connection with other segments of the EPZ, such 1
h Quite apart from the matter of regulatory requirements and guidance, the l
Appeal Board also noted tht there was no factual basis for the Licensing Board's distinction between hospitals and nursing / adult homes.
nus, for example, in common with the hospitals, six of the 10 nursing /ad'ut homes within the EPZ lie on i
the outer reaches of the EPZ. ALAB-832,23 NRC _t 156, n.79.
i ;
i
& a
as nursing / adult homes." CLI-87-12, slip op at 22. The Commission also observed that 10 CFR S 50.47(c)(1) could permit the Licensing Board to approve LILCO's 2
Plan, despite deficiencies related to hospital evacuation planning, if LILCO could establish that existing deficiencies were "not significant" for the operation of 4
Shoreham. kl. at 23. The applicability of Section 50.47(c)(1) was left to resolution on ren;and.
As set forth more fully below, LILCO's existing hospital plans cannot be found adequate under 10 CFR $ 50.47(c)(1) or, alternatively, on the ground that they provide reasonable assurance that adequato protective measures for hospital patients could and would be taken in the event of a Shoreham emergency. In most respects, the Appeal Board's concerns regarding LILCO's failure to adequately plan
'l for how a hospital evacuation would be carried out during a Shoreham emergency have not even been addressed by LILCO. Thus, it is absurd for LILCO to suggest that the hospital evacuation issues noted by the Appeal Board and the Commission 1
can be summarily resolved.
1 i
III. DISCUSSION A.
LILCO's Motion for Summary Disnosition Is Premature LILCO's Motion contains new facts and information regarding LILCO's latest intended approach to the evacuatica of hospitals. This information, including an initial description of purported evacuation time estimates, assumed reception hospital capacity, and procedures for directing evacuation vehicles to the hospitals, o-,---
I was provided by LILCO for the first time in its Motion. The Governments have had no prior opportunity to review LILCO's new Plan provisions or to evaluate their adequacy. Indeed, the new Plan provisions have still not been produced by LILCO.
Nevertheless, LILCO seeks summary disposition on its new hospital evacuation proposal.
Thus, the Motion continues LILCO's recent practice of unveiling substantial revisions regarding outstanding issues in its emergency planning efforts through motions for summary disposition.
LILCO's continued use of summary disposition as a means to spring new proposals on the Governments and the Board, without providing adequate opportunity for review or evaluation, must once again be rejected by this Board.
Under similar circumstances, the Board recently denied LILCO's attempt to resolve summarily LILCO's new EBS proposal. 333. December 21 Order. As the Board stated: "It can hardly be considered as acceptable procedure that LILCO's plan revisions, unreviewed by other parties and FEMA, with new radio stations forming significant links in its emergency broadcast responsibilities, could be the subject of a summary disposition resolution." @ at 3-4. Thus, the Board ruled that summary disposition motions are appropriate only af ter the other parties in a pro-ceeding have had an "opportunity to determine and respond to matters potentially in controversy." & at 45/ The Board must issue the same ruling in this instance:
LILCO's premature motion must be denied.
5,,/
Similarly, in denying LILCO's motion for summary disposition of the new schools evacuation proposal first revealed by(ed] material issues only resolvable LILCO on October 22,1987, the Board concluded that LILCO's proposal "present in a future contested forum." December 30 Order, at 5.
As with its ruling on LILCO's EBS motion, the Board observed that LILCO's new schools evacuation proposal requires analysis and review. E o
Denial of LILCO's Motion is particularly appropriate in this case. LILCO has informed the Board and parties that it will "soon" be lasuing Revision 9 of the Plan which, among other things, will provide additional information and data regarding LILCO's new hospital proposal. In light of the imminence of Revision 9's release and the information it will purportedly contain, it makes no sense to move forward with summary disposition at this time.
3 While LILCO suggests that it has included all relevant information la its Motion, any such suggestion is clearly self-serving and, judging from the information provided, simply inaccurate. The only "information" offered at this point is an outline and characterizations of LILCO's proposed future changes to its Plan. Those changes, however, have not yet been translated into a Plan revision, including implementing procedures, which the Board and parties can scrutinize.
J LILCO's attempt to shield Revision 9 and its proposed hospital evacuation plan from scrutiny, by attempting to resolve sumraarily the hospital evacuation issues remanded for further hearings by the Appeal Board and Commission prior to t
Revision 9's release, should be summarily rejected by this Board.
4 Further, this Board cannot accept LILCO's unilateral declaration that i
j Revision 9 will not contain any major changes to LILCO's hospital evacuation plan.
Sag, g,ga, LILCO's Motion at 14,17. Indeed, LILCO's Motion does not support l
LILCO's claim. Rather, the Motion makes clear that Revision 9, at the very least, I
will: "expand on [LILCO's] existing plans by detailing further the actions that certain LERO officials must take to implement hospital evacuation;" "detail ( ) how ambulance and ambulette drivers would be directed to the evacuating hospital (s);"
l 13 o
n
"define { ] the transportation requirements for a hospital evacuation by quantifying the number of beds that would ordinarily hold ambulatory patients, wheelchair patients, and patients that would require stretchers;" "translate [ ] these numbers tato vehicle requirements;" revise the list of potential reception hospitals available to LILCO; and "provide specific evacuation time estimates for hospitals in the EPZ." Sag.LILCO's Motion at 13,15,18 and 19-20. Under these circumstances, the Governments cannot be required to reply to the merits of LILCO's Motion regarding LILCO's new hospital evacuation proposal in the absence of a fair opportunity to analyze and review Revision 9, and to conduct discovery thereon.
333.
December 21 Order, at 3-4) a32.8189.10 CFR $ 2.749(c). LILCO's Motion must be denied.
i B.
LILCO's Hospital Evacuation Proposal Is Deficient and Fails To Address the Concerns Identified by 1
the Anneal Board and Affirmed by the Commission Putting aside the fact that LILCO's Motion is procedurally improper, there is no basis on the merits for granting summary disposition of the hospital evacuation issue.
i LILCO's previous hospital evacuation proposal was rejected as d hes LILCO now seeks i
summary disposition on the basis of a new proposal. However, that new proposal retains LILCO's fundamentally dhes. approach to hospital evacuation. This Board must therefore find that LILCO's new proposal remains deficient and contrary to regulatory requirements.
l The Appeal Board found that no basis existed for the Licensing Board's disparata treatment of emergency planning for hospitals versus that for nursing and adult homes.
LILCO's emergency planning for hospitals was deemed inadequate, in that it relied upon an
- l m
4 g has, response in the evont of an accident requiring evacuation of the EPZ hospitals.
4 Dus, for example, the Appeal Board reasoned that l
With respect to the necessity that the emergency response plan concern itself with the transportation of hospital patients to reception hospitals outside of the EPZ, the regulations do come into play and counter any thesis that such transportation requires no pre-planning but can be left to dhes. resolution once the emergency has occurred.
i ALAB-832, 23 NRC at 156. De Com:nission agreed that LILCO must meet the same planning obligations with regard to hospital evacuation as the Licensing Board required in cennaction with other segments of the EPZ, such as the nursing and adult homes. CLI-87-12, slip op, at 22 ("there is no suggestion in (NUREG 0654) l that hospitals are to be treated specially as exempt from the evacuation phantag requirement that applies to other segments of the EPZ"J.
LILCO ignores the explicit conclusion of both the Commission and the Appeal Boani that an db2G. approach to hospital evacuation is inadequate. Rather than addressing the deficiencies previously identified by the Ageal Daard and the Commission, LILCO congratulates itself repeatedly for its previous hospital proposal. 533, g.e, LILCO's Motion at 13 ("existing record shows that LILCO has planned extensively for hospital evacuation").6)
LILCO even asserts that 6./
LILCO's repeated citation to the PID findings to support its claim that its l
hospital evacuation ph eing is adequate is both misleading and highly improper.
Eas, se, LILCO's Motion at 14 ("De Board has already found that 'the physical capability for evacuating patients exists if needed.'"). Both the Appeal Board and the Commission have found to the contrary, and the Licensing Board's findings, l
repeated by LILCO throughout its Motion, hava been reversed. Further, both the Appeal Board and the Commission instructed LILCO to provide a detailed glag for t
i hospital evacuation, regardless of LILCO's oft-expressed belief that circumstances requiring the implementation of such a plan remain a remote possibility.
4 4 I
Revision 9 "will not materially alter information concerning hospital evacuation that is already on the record in this case." E at 14. Thus, it appears that LILCO would have this Board believe that it is contemplating in Revision 9 nothing more than cosmetic modifications to its hospital evacuation plans - not the substance required by the Appeal Board and the Commission.
Taking LILCO at its word, it must be concluded that LILCO's Motion must be summarily denied because if LILCO is to be believed, it continues to rely on an a_ihes. approach to the possibility of having to evacuate the EPZ hospitalsl/ Yet, it is even more clear that no entity - not the Board, the parties or FEMA - is presently in a position to understand fully what LILCO is proposing. This is the case because LILCO's Motion fails to disclose the details of many critical elements of its purported evacuation plan for the EPZ hospitals, such as evacuation time estimates, ambulance route assignments, and details regarding prioritizing the selection of available reception hospitals. The latter consideration is particularly important, since LILCO has simply listed available hospitals without sufficient explanation as to the order or manner in which hospitals would be contacted at the time of an emergency. Moreover, the selection of reception hospitals would affect the availability of ambulances and the accuracy of evacuation time estimates, because the hospitals listed in the Plan are as it ' rom the EPZ as western Nassau
- County, and LILCO relies on the ability and willingness of the ambulance /ambulette drivers to conduct multiple runs. Clearly, therefore, the 2./
For example, it appears that LILCO will still have no capability to evacuate any hospital patients early in an emergency, even if the patients would not suffer i
from the travel and even if dose savings were projected. Rather, LILCO appears l
steadfastly resolved to have no range of protective actions and to offer evacuation l
only when and if otherwise committed vehicles become available. This is a limited, adhes. plan that cannot be approved.
l l !
u
Board is in no position to assess the merits of LILCO's new plan proposal, absent learning the many details which LILCO has chosen to keep to itself.
LILCO's claims regarding the purportedly limited scope and extent of its Revision 9 changes concerning hospital evacuation issues are, moreover, quite suspect. LILCO concedes, for example, that Revision 9 will:
contain hospital evacuation ti:ne estimates; expand upon and detail further the actions that certain LERO officials must take to implement hospital evacuation; detail how ambulance and ambulette drivers would be directM to evacuated hospitals; define the transportation requirements for a hospital evacuation, by quantifying the number of beds that would ordinarily hold ambulatory patients, wheelchair patients, and patients that would require stretchers; "translate" data concerning the total bed capacity, broken down into patient requirements, into vehicle requirements; and i
provide a list of reception hospitals that are at least 5 miles beyond i
the edge of the 10-mile EP2 and can treat contaminated individuals.
l 1 1 I
LILCO's Motion at 13,15, and 18. These are not insignificant details; indeed, such information is critically important to understanding LILCO's hospital plan and determining whether such a plan can possibly work.
Even with Revision 9, however, LILCO will still not have obtained letters of agreement with reception hospitals. Sgt. LILCO's Motion at 14, n.10. Moreover, LILCO's approach in not providing transportation for the evacuation of hospital patients until af ter the homebound and special facility residents are evacuated, in not predetermining the circumstances under which the EPZ hospitals would be evacuated, and in not identifying in advance the number of patients reception hospitals could accommodate, will not have changed. Thus, it must be concluded that LILCO's approach to hospital evacuation will remain fundamentally ad. Mand contrary to regulatory requirements. Egg. ALAB-832,23 NRC at 156-57.
Accordingly, it would be clear error for the Board to attempt to dispose summarily of the hospital ev*.cuation issues before it in this remand. The Board has a duty to make findings on critical issues of health and safety. It cannot satisfy that duty based upon LILCO's plea that the Board ignore important health and safety considerations.
Nor can the Board delegate its obligations to the Staff, as LILCO wou1.d have it do. Sam. LILCO's Motion at 13-14. In LILCO's view, rather than permitting discovery into its new hospital evacuation proposal or holding evidentiary hearings, the Board should merely instruct the Staff to review the "Rev. 9 enhancements" to 1
decide whether they comport with NRC requirements.
Id at 14.
LILCO's n n
4 As suggestion that the Staff should be delegated the responsibility of confirming the adequacy of its new hospital evacuation proposal is untenable, an affront to the seriousness of the issues which are presented by LILCO's Motion, and contrary to the remand instructions of the Appeal Board and the Commission.
The Licensing Board, not the Staff, has the duty to make findings on critical issues of health and safety prior to the issuance of an operating license; it is not empowered to delegate that obligation to the Staff / Instances where matters 8
may properly be left to the Staff are limited to minor procedural deficiencies or issues where on-the-record proceedings would not be helpful for resolution of the issue.9/ The issues addressed by LILCO's new proposal for implementing protective actions for patients in the EPZ hospitals are neither minor nor procedura!J0,/
l 1,
8,/
Sam. Cleveland Electric Illuminatine Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-298, 2 NRC 730, 737 (1975); Consolidated Edison Comnany of New 19th. (Indian Point Station, Unit No. 2), CLI-74-23, 7 AEC 947, 951-52 (1974);
l Washineton Public Power Sunolv System (Hanford No. 2 Nuclear Power Plant),
l ALAB-113, 6 AEC 251, 252 (T973). Eng. ala9. Public Service Comnany of Indiana l
(Marble Hill Generating Station, Units 1 and 2), ALAB-461,7 NRC 313,318 (1978)
(Staff Counsel urges that factual determinations related to the issue of an applicant's financial obligations should not be left to the Staff because "delegating open matters to the staff for post-hearing resolution is a practice frowned upon by both the Commission and this [ Appeal) Board").
9/
Sag, tigu Consolidated Edison Co. 7 AEC at 951 and n.8) Southern j
California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),
LBP-82-39,15 NRC 1163,1216 (1982), a[f'd, ALAB-717,17 NRC 346 (1983).
_I0/
Contrary to LILCO's suggestion (LILCO's Motion at 14, n.9), delegating to the Staff the task of determining the adequacy of LILCO's hospital evacuation proposal would not be consistent with the Waterford case. Sag.Locialana Power and Light CA,.(Waterford Steam Elec. Station, Unit 3), ALAB-732,17 NRC 1076 (1983).
De deficiencies found in LILCO's hospital evacuation planning run to fundamental planning flaws - LILCO's ad, beg, approach to hospital planning - rather than i
merely to implementing procedures for otherwise adequate planning. Both the Appeal Board and the Commission have recognised the need for additional inquiry before the Licensing Board, as opposed to mere confirmation of ministerial details before the Staff. nus, LILCO's reliance on Waterford is misplaced.
i i
j i i
u
Indeed, LILCO's new hospital evacuation time estimates, if they are to be relied upon by this Board, demonstrate that LILCO's proposal is inadequate and creates a significant != sue of public health and safety.
The Licensing Board previously found that LILCO would not be able to "extend the same level of radiation protection to all hospital patients that would be ac:orded to the general public by an evacuation that takes place in about 5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br />." PID, 21 NRC at 846.
Nonetheless, the Board concluded that "the unquantified incremental risk to health and safety of some hospital patients under the LILCO Plan is small." M LILCO's purportedly forthcoming new time estimates for a hospital evacuation apparently will far exceed the approximately 5-hour standard previously assumed by the Licensing Board, however - ranging to as high as an average of 17 hours1.967593e-4 days <br />0.00472 hours <br />2.810847e-5 weeks <br />6.4685e-6 months <br /> to complete the hospital evacuation. Sta.LILCO's Statement of Material Facts 1 10.
The prospects of an evacuation period for hospital patients which is over three times the duration of that for the general public obviously raises a significant issue for the public health and safety.
Finally, it would be particularly wrong in this instance for the Board to rely upon the Staff to have any decisional responsibility relating to hospital evacuation.
The Staff has consistently supported LILCO's position - before the Licensing Board, the Appeal Board, and the Commission. The Staff was proven to be wrong.
It cannot be relied upon now to put aside its support for LILCO and somehow adjudicate these issues. The Govern nents are entitled to an impartial adjudicator
- the Staff certainly is agithat. _ __ _ n____ n
C.
SubstantialIssues of Material Fact Exist Precludine Summary Discosition Even if the procedural deficiencies of LILCO's Motion and the still fundamentally Ad.hes. approach to hospital evacuation planning taken by LILCO are ignored, LILCO's Motion must nonetheless be denied. Simply put, LILCO's Motion ignores the app!! cable law governing summary disposition.
Further, LILCO's hospital evacuation proposal presents unresolved questions of material fact which are themselves sufficient to preclude summary disposition.
The law applicable to summary disposition was recently summarized by this Board in its Memorarxium and Order of September 17,1987, LBP-87-26 (hereaf ter, "September 17 Order"), and by the Vogtle Board in its unpublished Memorandum and Order of October 3,1985. Sam. Memorandum and Order (Ruling on Motion for Summary Disposition of Contention 8 re: Vogtle Quality Assurance), Georgia Power l
A (Vogtle Electric Generating Plant, Units 1 and 2), ASLBP No. 84-499-01-OL, Doc. Nos. 50-424 OL and 50-425 OL (Oct. 3,1985), slip op, at 2-3.
I I
A licensing board is empowered to grant summary disposition if it finds that "there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law." 10 CFR $ 2.749(d). The party seeking summary disposition has the burden of proving the absence of any genuine issue of material fact, Cleveland Electric Illuminatine Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 753 (1977), with the record viewed in the limht most favorable to the motion's onoonent.
Dalrvland Power Coonerative (Lacrosse Boiling Water Reactor), LBP-82-58,16 NRC 512, 519 (1982)(emphasis r
5 ---
added). Even in the absence of a response, this burden must be met. Perry. 6 NRC at 754. Sag, menerally September 17 Order, at 20. Moreover, as recognized in Section 2.749(c) and this Board's December 21 and 30 Orders, summary disposition must be rejected when a party has had inadequate opportunity to controvert facts relied upon by the movant.
In seeking summary disposition on the hospital evacuation issue, LILCO blithely ignores the law governing summary disposition. LILCO bears the burden of i
establishing the absence of any genuine issue of material fact.' Furthermore, ths.
Bocrd must view the record and any submitted affidavits in the linht most favorable to those onoosina LILCO's )'_qilq_n.
LILCO has not, and cannot, carry its burden in this case. LILCO's Motion, in essence, effectively precludes the Governments from contesting the material "facts" alleged and relied upon by LILCO viewed in its simplest terms, the Motion is really nothing other than LILCO's initial submission of an outline of a Plan revision, which allegedly will address the evacuation of hospital patients during a Shoreham emergency. Sam.the Affidavit of Michael S. Miller, attached hereto. It is rudimentary that, under these circumstances, there must be an adequate opportunity for review, and for discovery, before issues can be disposed of through summary disposition. Summary disposition may be appropriate at some point later in this proceeding. At a minimum, however, there must first be an opportunity to tag, and then to review and analyze, LILCO's new proposal for evacuating hospital patients out of the EP2, followed by discovery, before thcre can properly be rulings on the merits. Sag 10 CFR $ 2.749(c) (authorizing licensing boards to refuse an.
application for summary disposition when it appears that a party opposing the motion cannot present facts essential to justify his opposition). Without such an opportunity, the Governments are relegated to challenging not facts, but mere assertions, characterizations, and predictions by LILCO of what an announced but as yet unseen Plan revision commits LILCO to doing. LILCO cannot be permitted, under the guise of a summary disposition motion, to shield its proposed Plan revision from scrutiny. Nor can this Board summarily accept LILCO's proposal for handling a hospital evacuation without hearing testimony, other evidence, and argument as part of the remand ordered by the Appeal Board and the Commission.
It is equally clear that the Board cannot admit as "undisputed fect" a nsw LILCO proposal for the evacuation of hospital patients from the EPZ, when this new proposal has never before been seen or reviewed by any other party, the Board or FEMA. That would be the kind of abuse of discretion which the Appeal Board 4
rebuked in Diablo Canyon. Sag, Pacific Gas & Elec. Co. (Diablo Canyon Nuclear i
Power Plant, Units 1 and 2), ALAB-580,11 NRC 227 (1980)(Licensing Board erred in approving security plan without ever having even seen the plan).
The basic deficiency of LILCO's Motion is that there simply is not sufficient factual detail regarding LILCO's new hospital evacuation proposal to permit l
summary resolution of the outstanding hospital evacuation issues. This inadequate factual record is the direct consequence of LILCO's decision to withhold the details 1
of its new proposal until after the filing of the summary disposition motion at issue and until after the parties' responses must be filed. Thus, to a large extent, 1
LILCO's Motion effectively precludes the other parties in this proceeding from contesting the material "facts" alleged and relied upon by LILCO.
To take just one example for illustrative purposes, LILCO indicates that in calculating hospital evacuation time estimates, patients were allocated among the potential reception hospitals listed in Attachment 2 to OPIP 3.6.5, starting with those located at least 5 miles beyond the EPZ boundary. LILCO's Statement of Material Facts T 9(a).
Presumably, this allocation was based on LILCO's assumption of a 14% vacancy rate at the reception hospitals. 533. ii. T 9(c).
However, LILCO has not presented sufficient factual detail to support the validity of the 14% figure. In fact, LILCO concedes that the 14% figure is based on information concerning national hospital vacancy rates.
Sam, Affidavit of Edward B. Lieberman T 4(c). No evidence is presented to indicate that the figure has any relevance to the potential reception hospitt.ls listed and relied upon by LILCO. Further, it is clear that the 14% figure is actually the product of hearsay upon hearsay, with no attempt at all by LILCO to demonstrate that its data are reliable or ever would be admissible in trial.
Se_t Miller Affidavit 1 T 7, 8.
Therefore, LILCO's "facts" relating to evacuation time estimates are not "facts" at all-they are unsupported LILCO assertions.
Moreover, many of the "facts" listed in LILCO's Statement of Material Facts t
are neither material nor capable of ready verification or dispute by the Governments. For example, the first "material fact" listed by LILCO is that LILCO will soon file with the NRC and all parties copies of Revision 9 to the LILCO Plan. Sen LILCO's Statement of Material Facts T 1. That LILCO will soon
~
9 file a new revision to its Plan may or may not be true. It is certainly not, however, a material fact with which the Governments may either agree or disagree, or as to which they are obliged to agree or disagree.
Similarly, LILCO's new evacuation time estimates are merely presented, in conclusory fashion, with LILCO apparently assuming that the estimates should 1,.
accepted as a matter of undisputed fact. Sgt.LILCO's Statement of Material Facts T 10. LILCO, however, has failed to present the raw data, assumptions or analyses which produced its conclusionsd.1/ And its conclusory assertion, that "[m]ost of the procedural steps and assumptions used in calculating the hospital evacuation time estimates are identical to the ones previously used to calculate evacuation time I
estimates for the special facilities in the EPZ" (LILCO's Statement of Material Facts 1 8), is insufficient. Neither the Board nor the parties can accept the results of LILCO's calculations as "undisputed material facts" until LILCO provides sufficient information to permit analyses, review, and verification of its l
calculations. LILCO's Statement thus does not comply with 10 CFR $ 2.749(a), nor does it support LILCO's Motion.
Another example of a deficiency in LILCO's latest proposal is that LILCO has failed to identify reception hospitals. Instead, LILCO merely lists 26 hospitals throughout Long Island which, according to LILCO, could be called upon to be reception hospitals in the event of a Shoreham emergency.
Sgt. OPIP 3.6.5,
.I1/
Moreover, based upon the little information that has been provided by LILCO, it would appear that LILCO's time estimate calculations are ilawed. As set forth more fully below, LILCO may have used incorrect EPZ hespital capacity figures la calculating the hospital evacuation time estimates. - -
~
9 I
Att. 5J.2/
LILCO's proposal includes only the telephone numbers for these hospitals. There is no indication of how many beds are available at these potential l
reception hospleals; in fact, the 14% vacancy rate apparently assumed by LILCO purports to be a national figure, rahr than one which is necessarily representative of any of the hospitals in question. Sag LILCO's Motion at 20, n.17. Further, although LILCO has provided its overall evacuation time estimates for evacuation of b EPZ hospitals, it has not provided any indication as to the ciecumstances under which a hospital would be evacuated in the event of a Shoreham emergency.
Nor has it provided the data underlying its time estimates, the calculations performed, or & assumptions made in deriving the estimates (for example, h time necessary to contact appropriate personnel at t!w potential reception hospitals during an emergency and ascertain whether they can receive and provide necessary and appropriate care for evacuees from the EPZ hospitals and how many). LILCO also has failed to provide necessary information concerning the number and types of evacuating vehicles (ambulances, ambulettes and buses) it wot1d require to evacuate the hospitals.
LILCO does reveal that the same ambulances and ambulettes used to evscuate the homebound and nursing / adult homes would be used (att. LILCO's Motion at 14-15); LILCO fails, however, to indicate how those vehicles would be dispatched, managed or directed following bir multiple reis in and out of the EPZ evacuating the homebound and special facility residents to other, also unidentified, reception facilities, other than to say that the LERO Ambulance Coordinator would instruct drivers to return to the j
.I2/
Even that number is uncertain, since LILCO has ladicated that Revision 9
)
l will eliminate all hospitals from b listing presently set forth in OPIP 3.6.5 which i
are not 5 miles or more beyond the EPZ MW or which do not have the capability to treat contaminated individuals. Sam, t.igu LILCO's Motion at 18. Of r
course, LILCO does not indicate in its Motion which hospitals will be eliminated,
{
bow many will remain, or what their capacity will be.
l i.
u
evacuating hospitals, until all patients are evacuated (kl. at 17-18).
- Further, LILCO assunnes that vehicle drivers would be immediately available for additional trips, as necessary. LILCO's Motion at 20-21; Lieberman Affidavit 1 4.d. No basis or reasoning for this assumption, or others made by LILCO, is offered, however.
4 Given this dearth of factual details, there is absolutely no basis for determining whether LILCO could evacuate the EPZ hospitals in anywhere near the time periods asserted by LILCO in its Motion. This uncertainty, and, indeed, the uncertainty inherent in LILCO's entire approach to hospital evacuation, is a serious matter of public health and safety, which precludes a reasonable assurance finding.
Sgt. Guard. 753 F.2d at 1149 ("A provision calling for pre-event arrangements is not sensibly met by post-event prescriptions.").E/
In short, Revision 9 purportedly sets forth additional details regarding LILCO's plans for implementing an evacuation of the EPZ hospitals. Sam, g4u j
LILCO's Statement of Material Facts T 10 (evacuation time estimates); Statement of Material Facts T 2 (breakdown of estimated patient groups). However, the Governments, the Board, the NRC Staff, and FEMA have no basis to either confirm El N Guard decision is particularly relevant here. The issue presented in that case was the Commission's generic interpretation of an emergency planning regulation requiring arrangements for those who may be exposed to dangerous levels of radiation.
The United States Court of Appeals for the District of Columbia Circuit held that "the Commission did not reasonably interpret the (S}ection 50.47(b)(12) phrase ' arrangements... made for medical services' when it declared, generically, that a simple list of treatment facilities already in place comtitutes such arrangements." 753 F.2d at 1146.
LILCO seeks to meet its obligation to make prior arrangements for reception hospitals merely by listing hospitals to which it will look in the event of an emergenc7. N approach is fundamentally asthes.and inconsistent with Guard and the NRC s own regulations.
4 1
or dispute these unrevealed "facts," which LILCO asserts will be contained in Revision 94 To the extent these so-called "material facts" characterize and summarise Revision 9, they highlight the inappropriateness of summary disposition prior to issuance of the revision on which LILCO relles so extensively. In the absence of an opportunity to see the new proposal and to conduct discovery, it is not posalble to address in detail LILCO's purported material facts or to specify affirmative evidence to counter LILCO's representations.
D.
The Deficiencies in LILCO's Hospital Evacuation Proposal Are Significant and Preclude Summary Disnosition in LILCO's Favor Under 10 CFR $ 50.47(c)(1), LILCO has the "opportunity" to attempt to demonstrate that its failure to comply with 10 CFR $ 50.47(b) is not "significant."
i LILCO premises a portion of its Motion (pages 8-13) upon such a purported showing. In the discussion below, the Governments demonstrate that LILCO's Section 60.47(c)(1) argument is completely without basis.
.l4/
One exception is LILCO's representation regarding the total bed capacity of the EPZ hospitals: Central Suffolk Hospital (142); St. Charles Hospital (258); John T. Mather Hospital (238). Sam. LILCO's Statement of Material Facts T 2.
The numbers of patients listed in LILCO's Statement are not consistent with the numbers listed in LILCO's Motion: Central Suffolk Hospital (142); St. Charles Hospital (271); John T. Mather Hospital (238).
Sam. LILCO's Motion at 15.
Moreover, even these numbers are inconsistent with those in LILCO's existing Plan.
Sen. OPIP 3.6.5, Att. 2 at 6, 8, which states as follows: Central Suffolk Hospital I
(157); St. Charles Hospital (271); John T. Mather Hospital (203). Thus, at this time, l
it is not clear which figures were used by LILCO in calculating its hospital evacuation time estimates.
And, as noted above, LILCO's Motion improperly l
ignores the patients in the Suffolk County Infirmary which, according to the existing Plan, number approximately 215. OPIP 3.6.5, Att. 2 at 5.
Clearly, the hospital evacuation issue cannot be resolved until, at the very least, LILCO i
l identifies the correct number of patients for which it must plan, and then calculates the time necessary to evacuate these patients.
LILCO's Motion demonstrates its inability to do so at this time. --
?
1.
m-CO Canaat Relv Unon Section 50.47(eMI)
The Board should summarily dismiss LILCO's entire Section 50.47(c)(1) argument.
It is premised upon LILCO's 1984 plan provisions for hospital preparedness.
However, as demonstrated in LILCO's Motion, LILCO has now decided to change its 1984 plan.
This Board certainly cannot now make i
Section 50.47(c)(1) findings on the basis of hosp!?al plan provisions that LILCO has abandoned.
This is not a matter of pleading in the "alternative." While litigants are often permitted to argue alternative theories, the fact here is that the basis for LILCO's Section 50.47(c)(1) argument is a version of LILCO's plan which has been superceded. It does no+ exist. There can be no findings on a non-existent plan.
t Moreover, LILCO's Section 50.47(c)(1) argument is not assisted by its efforts to misapply NRC guidarace. LILCO asserts that "the Commission clearly invited i
j i
I the Licensing Board to consider LILCO's existing hospital plans under 10 CFR j
$ 50.47(c)(1), without further hearinas. and find them adequate if it determines that any deficiencies in them are 'not significant.'" LILCO's Motion at 7 (emphasis added). This assertion is erroneous. Nothing in CLI-87-12 indicates a directive for i
resolution of the hospital evacuation issue without further hearings. Similarly, nothing in CLI-87-12 indicates a directive for resolution under Section 50.47(c)(1),
under circumstances where LILCO has changed its plan. Indeed, nowhere in the i
orders of the Appeal Board or the Commission is there even the slightes.t hint of l
support for the kind of drastic curtailment of inquiry regarding the adequacy of i l I
IACO's planning for a hospital evacuation sought by IACO in its Motiond.5/ In short, therefore, bre is no Section 50.47(c)(1) argument to be considered by this Board.
The Governments in the remainder of this Response nonetheless discuss i
aspects of IACO's Section 50.47(c)(1) argument, since it is recognized that the Board may decide to proceed with consideration of that argument.
The l
Avernments emphasise, however, that in their view, the Board would commit clear error by granting IACO's Motion on the ground that the deficiencies in IACO's hospital plans are not significant under Section 50.47(c)(1).
2.
IACO's "Insignificance" Argument Flies in the Face of the Law of the Case
'Ihis Board is in no position to make an "Insignificant deficiency" ruling based upon the deficient 1984 ad, has, plan rejected by the Appeal Board and the Commission. Several reasons support this conclusion.
l First, IACO's claim that the deficiencies in its 1984 hospital plan are not significant rests largely on its previously-stated belief that a serious accident requiring evacuation of b EPZ hospitals is only a remote possibility. Egg, em 1ACO's Motion at 9-10.
This argument, however, ignores b unequivocal l
l conclusion of b Appeal Board and b Commission that IACO must plan for and demonstrate an ability to implement an evacuation of the EPZ hospitals. Sat.
l l
l 15/
The Board recently rejected as groundless a similar argument by IACO that b re =madad Contention 25.C issues should be resolved through summary disposition. Sea. December 30 Order, at 4 ("no basis exists for IACO's arpment l
that the Appeal Board did not specify the necessity of an evidentiary hearing ).
l i :
]
ALAB-832, 23 NRC at 155; CLI-87-12, slip op. at 22.1$/ An a_si_ hoc response, such as LILCO's, has already been ruled unacceptable and in violation of the NRC's regulations. Its inherent deficiencies canr.ot bs s asidered insignificant.
Moreover, LILCO's argument is contrary to NRC precedent. The likelihood or probability of cctually having to implement an evacuation during an emergency is irrelevant to the determination whether an eme;er.cy plan is adequate and in compliance with NRC regulations. Philade!ohta Electric Co. (Limerick Geaerating Station, Units 1 and 2), ALAB-819, 22 liRC 681, 13 (1985), review declined. CLI-86-5,23 NRC 125 (1986). There, the Appeal Board stated:
The Commission's emergency planning regulations are premised on the a.esumotion that a serious accident might occue and 'Aat evacuation of the EPZ might well bp_ necessarv The adequacy of the given emergency plan therefore must be adjudged with this in mind.
As a corollary, a nossible deficiency in an emergency plan cannot oronerly be disregarded because of the low crobability that action oursuant to the olan A$/
In pertinent part, the Appeal Board stated:
Assuming, without deciding, that the probability of a hospital evacuation is as low as the Licensing Board believed, it does not follow that the emergency response olan need not concern itself with how such an evacuation would be carried out if it should be directed.
ALAB-832,23 NRC at 155 (emphasis added).
The Commission similarly noted that:
Evea though sheltering will quite likely be the preferred protective action for EPZ hospitals in the event of a serious accident, evacuation should not be prejudiced by the failure to plan in advance.
CLI-87-12, slip op. at 22.._
will ever be necennary.
Thus, the Licensing Board majority gave undue weight to the fact that evacuation of (a hospital within the EPZ] is remote.
22 NRC at 713 (emphasis added) ll/
Not only does the foregoing precedent compel rejection of LILCO's Section 50.47(c)(1) argument, it also directly undercuts some of LILCO's factual assertions. For example, LILCO's Motion and its 1984 hospital plan are premised on the purported unlikelihood of having the EPZ hospitals experience a 25-rem exposure (which, given the shielding factor assumed by LILCO, w~ould equal a 5-rem exposure for patients). The 5-rem limit is termed by LILCO as the "excessive" dese threshold. Sam,LILCO's Motion at 10,11. But the Limerick decision makes clear that planning cannot be premised on such specific thresholds - a serious accident 11 /
Similarly, in Gncinnati Gas and Electric Co. (Zimmer Nuclear Power Station, Unit 1), ALAB-727,17 NRC 760,774, n.19 (1983), the Appeal Board staid in the context of evacuation plans for schocis (also in the "special facility" category according to NUREG 0654; ten. Appendix 4 at 4-2,4-3):
This emphasis on the need for sufficiently developed school evacuation plans should not be taken as implying a belief that, in the event of a serious accident, this particular protective measure necessarily would have to be invoked.
To the contrary, depending upon their appraisal of the situation confronting them, the responsible officials might well decide that the better course would be to shelter the students in the school buildings. Our point is instead simply that Commission l
regulations clainly recuire the formulation of l
satisfactory evacuation olans as a cart of the ove-all l
emergency creoaredness ef(9.1.t Moreover, at least if adequately developed, those plans should aid materially the making of an informed judgment respectLg which available protective measures are most suitable in the totality of the circumstances attending the specific i
emergency at hand.
(Emphasis added).
I.
l l
must be presumed and serious doses must likewise be presumed. See ALAB-819,22 l
l NRC at 713.
Further, LILCO's 5-rem thresholl for "excessive" dose is clearly not proper.
The EPA PAG limit is 1-5 rems. LILCO's seeming suggestion that a 5-rem dose is somehow acceptable is clearly wrong.l8/
In addition, it must be emphasized that the goal of emergency planning is dose reduction. There are n_o_ acceptable doses; and no dose is deemed insignificant.
Yet, LILCO's hospital plan is premised on doing essentially nothing to evacuate hospital patients - even those for whom the rigors of travel would not be severe -
until after all other persons are evacuated and even then not until a 5-rem dose is projected. This Board cannot find such doses to be insignificant, nor can it condone LILCO's decision to ignore them and to ignore the potential dose savings which could be achieved by the evacuation of hospital patients.
Moreover, the NRC regulations are premised upon there being a range of protective actions, so that the action best resulting in dose savings can be implemented. But LILCO's old hospital plan had no range - it had only sheltering until everyone else was evacuated and then had evacuation on solely an a_d. hoc basis. Moreover, that eva:uation was not really an available option under LILCO's former hospital plan, since there were no evacuation time estimates for the EPZ hospitals. It thus would have been impossible for planners to predict whether an 18/
Moreover, LILCO totally ignores the probability that many hospital patients would be particularly sensitive to even minimal exposures, such as maternity patients, newborns, children and pregnant women. - _ _ _
evacuation of hospital patients at a particular time in the emergency would have resulted in lose savings, and thus be "protective." Clearly, the deficiencies of such 2n dhoc "plan" cannot be insignificant.
Nor does LILCO h its Motion ever actually attempt to demonstrater that the deficiencies in its hospital plan are insignificant.l2/ Thus, for example, LILCO has no pre' actions of the doses expected for hospital patients in a severe emergency where only sheltering is planned versus the doses where evacuation is a full option.
Accordingly, LILCO clearly has failed to satisfy its burden of demonstrating that the deficiancies in its hospital plan are insignificant.
There are multiple other defects in LILCO's argument that Secuca 50.47(c)(1) provides a basis for approving LILCO's former, d hoc plan.
First, Section 50.47(c)(1) is intended to be applied where the deficiencies in compliance with 10 CFR $ 50.47(b) "enly reflect the actual state of preparedness which may be easily remedied...." 47 Fed. Reg. 30,232, 30,234 (1982); accord.
Philadelohia Elec. Co. (Limerick Generating Station, Units 1 and 2), ALAB-809, 21
(
l bl LILCO argues that its deficiencies in hospital evacuation planning are not significant because of tl:e hospitals' distance from the plant, the hospitals' high l
shieltiing capabilities, and the countervailing risks of injury by moving patients.
Sag, LILCO's Motion at 11-12. As already noted, however, this LILCO argument ignores precedent that requires LILCO to assume a serious accident; it also relies on 5 rem belog an acceptable dose. Yet, the Appeal Board and the Commission, l
after having 1 card these arguments, concluded that LILCO's d h2s. P an was l
l inadequate, and that more detailed planning by LILCO is necessary - specifically, I
plarning in the same detail as required with respect to nursing and adult homes.
LILCO's attempt to trivialize the nocessity of prior planning for hospital evacuation adds nothing new to its prior arguments. LILCO has thus done nothing to demonstrate that the deficiencies inherent in its d hos, approach to hospital evacuation are not significant for the operation of Shoreham..
v
NRC 1605,1612, vacated as moot. CLI-85-16, 22 NRC 459 (1985)3.0/
The deficiencies in the instant case do not fall in the "easily remedied" category, and they do not reflect LlLCO's "actual state of preparedness...." Rather, they reflect a complete lack of evacuation planning and preparedness, as acknowledged by the Appeal Board and Commission decisions in ALAB-832 and CLI-87-12.
Further, LILCO has made no showing - or even attempted showing - that the hospital evacuation deficiencies could be easily remedied. Indeed, as noted, LILCO has not yet even supplied its proposed plan revisions -
and the summary description of those revisions which has been provided reveals many questions regarding the adequacy and implementability of LILCO's new "plan." Despite the so-called "refinements," the "plan" appears still to rely solelv upon sheltering early in an emergency.
LILCO, therefore, has failed to comply with 10 CFR
$ 50.47(b)(10), which requires that there be a "range of protective actions" for plume exposure residents.
In these circumstances, Section 50.47(c)(1) clearly provides no basis for allowing or finding "insignificant" LILCO's non-compliance with the regulations.
To appreciate fully the arguments here set forth, tus Board must understand just how clearly deficient LILCO's 1984 plan was - a daficiency shared by LILCO's new "plan" as well, based upon the summary information that has been provided by
(
LILCO. This can best be shown by example. If there were a severe accident at Shoreham anticipated to result in a 25-rem whole body dose at the EPZ boundary in 7 hours8.101852e-5 days <br />0.00194 hours <br />1.157407e-5 weeks <br />2.6635e-6 months <br /> or so, what does LILCO's "plan" for hospitals provide? LILCO's plan is to 29/
ALAB-809 was subsequently vacated as moot due to the fact that the Licensing Board on remand addressed the merits of the intervenors' contentions, rather than relying on an exemption. Sta. CLI-85-16, 22 NRC 459 (1985). The principles enunciated in ALAB-809 must nonetheless guide this Board, i l
shelter the patients - even those patients who would be easy to move - thereby allowing them to get an average dose of 5 ren s, the upper PAG limit. LILCO takes this action because it has failed completely to plan for any early evacuation of any hospital patients. If LILCO had an implementable plan for a range of protective actions for hospitals, including evacuation, the 5-rem dose could be avoided for many persons. This Board cannot find such a failure to plan - which results in receipt of otherwise avoidable doses - to be acceptable or insignificant.
Sgg.Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22, 30 (1986) (emergency planning regulations seek to achieve reasonable and feasible dose reductions, not a preset minimum dose saving).
Second, LILCO argues that "no NRC regulation requires an applicant to show that every EPZ facility could or would be evacuated under certain conditions."
LILCO's Motion at 8, n.4 (citing Consolidated Edison Co. of New York (Indian Point, Unit No. 2), LBP-83-68,18 NRC 811 at 993, 995 (1983)). But, LILCO's purported authority is inapposite.
Whether NRC regulations require that LILCO show a capability to evacuate all EPZ facilities in the event of a severe accident at Shoreham is immaterial to the hospital evacuation issue on remand. The Appeal Board has already directed that LILCO must revise its hospital plan to provide a detailed plan designating reception hospitals outside the EPZ, specifying evacuation time estimates, and setting forth other procedures necessary to the evacuation of the EPZ hospitals. Sgt. ALAB-832, 23 NRC at 156-57. The Commission agreed with the Appeal Board's reasoning, noting that LILCO, at the time of the 1984 l
emergency planning litigatien, had not obtained letters of agreement with potentia' reception hospitals, had not provided for transportation for hospital evacuees l m
4 4
(except on an ad, hog. basis and after the homebound and nurslog/ adult home residents have been evacuated), had not calculated evacuation time estimates for the EPZ hospitals, and had not pas stermined the circumstances under which EPZ hospital patients would be evacuated. Sam.CLI-87-12, slip op. at 17-18. LILCO still has not obtained letters of agreement; its transportation plans for hospital evacuees remain unchanged; and it has refused to predetermine the circumstances under which the EPZ hospitals would be evacuated.
Thus, even though the Commission noted that the Licensing Board could approve LILCO's hospital plan, if the deficiencies in that plan are found not to be significant under 10 CFR 5 50.47(c)(1), LILCO has made no showing of insignificance.
Indeed, the absence of letters of agreement with reception hospitals, without more, demonstrates the inadequacy of LILCO's old hospital plan (as well as its new one), and precludes a finding that this deficiency is not significant under 10 CFR $ 50.47(c)(1). LILCO asserts that letters of agreement are "unnecessary" and "useless" and not significant under Section 50.47(c)(1), because potential reception hospitals can only assess their ability to accept EPZ hospital evacuees at the time of an emergency.
S,.g. LILCO's Motion at 12-13.2_1/ This exact argument was rejected by the Appeal Board and the Commission, however, in their rulings that such agreements are, in fact, necessary. Moreover, the absence of letters of agreement is a significant dei 8ciency since: -(1) LILCO has failed to document the existence of sufficient resources and capability at the reception hospitals to 2.,l/
It is unclear whether LILCO continues to believe that letters of agreement are "unne:essary" and "useless." LILCO's commitment to continue seeking letters of agreement suggests ambivalence towards the value of letters of agreement with reception hospitals.
S_qs. LILCO's Motion at 14, n.10; LILCO's Statement of Material Facts 1 11.,...
6 accommodate hospital patients from the EPZ; and (2) LILCO has failed to document that the reception hospitals have sufficient capacity to accommodate all, the EPZ hospital patients, even assuming that LILCO's 14% vacancy rate is an accurate assumption.
Under LILCO's hospital plan, the reception hospitals relied upon by LILCO must be capable of both receiving hospital patients from the EPZ and treating any patients exposed to radiation.
Letters of agreement are required in order to provide pre-emergency assurance that designated reception hospitals have sufficient resources and capabilities - in addition to available space - to decontaminate and treat radiation injuries, and to accommodate EPZ hospital evacuees.22/ LILCO has wholly failed to doc 2 ment such a capability. LILCO has likewise completely failed to demonstrate that this defect is insignificant.
LILCO's hospital plan contains neither letters of agreement nor capacity figures for the reception hospitals listed in the Plan.
Moreover, LILCO has indicated that Revision 9 will reduce the number of reception hospitals listed. See LILCO's Statement of Material Facts T 6.
There simply is not sufficient information provided to confirm that LILCO has identified reception hospital space for all EPZ hospital patients. LILCO's failure to identify sufficient reception 1
l hospital capacity to receive EPZ hospital evacuees constitutes another significant l
l deficiency, which precludes a Section 50.47(c)(1) ruling favorable to LILCO.
l 2,,2/
Indeed, under LILCO's Plan, reception hospitals would be needed to house the homebound and special facility evacuees, as well as the EPZ hospital evacuees.
Sag,OPIP 3.6.5.
m
=
o IV. CONCLUSION For the reasons set forth above, LILCO's motion for summary disposition should be denied.
Respectfully submitted, E. Thomas Boyle Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 Lawrence C. Lanpher Michael S. Miller Ronald R. Ross KIRKPATRICK & LOCKHART 1800 "M" Street, N. W.
South Lobby - Ninth Floor Washington, D. C. 20036-5891 Attorneys for Suffolk County M no (6;46b Fabian G. Palomino Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York m
f4
=
s Ib n&)
Steph4n B. Latham Twomey, Latham & Shea Post Office Box 398 33 West Second Street Riverhead, New York 11901 Attorney fcr the Town of Southampton January 15.1988 l
40 l
s STATEMENT OF MATERIAL FACTS AS TO WHICH THERE EXISTS A GENUINE ISSUE TO BE HEARD ON MATTERS RAISED BY LILCO'S MOTION FOR
SUMMARY
DISPOSITION OF THE HOSPITAL EVACUATION ISSUE For reasons stated in the Governments' Response to LILCO's Motion for Summary Disposition of the Hospital Evacuation Issue and the supporting Affidavit of Michael S. Miller, the Governments are unable to determine which, if any, of LILCO's so-called "undisputed" facts present genuine issues to be resolved at trial.
However, based upon the review of LILCO's Motion, LILCO's Statement of Material Facts, and the Affidavits of Diane P. Dreikorn and Edward B. Lieberman, the Governments hereby submit a list of material facts which must be resolved before the Board esn rule on the remanded hospital evacuation issue:
- 1. Whether LILCO's proposal for the evacuation of EPZ hospitals in the event of a Shoreham emergency provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency at Shoreham, as required by 10 CFR $ 50.47(a)(1).
l j
- 2. Whether, under LILCO's proposal, there can be a finding of compliance I
with 10 CFR $ 50.47(b)(1).
l 3.
Whether, under LILCO's proposal, there can be a finding of i
compliance with 10 CFR $ 50.47(b)(3).
4.
Whether, under LILCO's proposal, there can be a finding of compliance with 10 CFR $ 50.47(b)(10).
I 1
l l
l
b 5.
Whether, under LILCO's proposal, there can be a finding of compliance with NUREG 0654 $ ILA.
6.
Whether, under LILCO's proposal, there can be a finding of compliance with NUREG 0654 $ II.C.
Whether, under LILCO's proposal, there can be a finding of compliance with NUREG 0654 $ ILJ.
8.
Whether LILCO's proposal adequately and properly identifies the circumstances under which the EPZ hospitals will be evacuated.
9.
Whether, in the absence of letters of agreement, the Licensing Board can find reasonable assurance that there will be sufficient hospital beds at reception hospitals to accommodate hospital evacuees, as well as homebound and special facility evacuees, in the event of a radiological emergency at Shoreham.
10.
Whether, in the absence of letters of agreement, the Licensing Board can find reasonable assurance that LILCO will have sufficient medical resources, including personnel and equipment at reception hospitals, to treat and provide necessary services to hospital evacuees, as well as hombound and special facility evacuees, in the event of a radiological emergency at Shoreham.
11.
Whether LILCO has obtained, and would have access to, sufficient numbers of vehicles, including ambulances, ambulettes, and buses, to transport all evacuees from the EPZ hospitals, after having evacuated all special facility _.
residents, the homebound, and all other EPZ residents, within approximately the same period of time as required for evacuation of the general public.
12.
Whether LILCO's proposal accurately identifies the total bed capacity, available for hospital evacuees, of reception hospitals in the event of a Shoreham emergency.
13.
Whether LILCO's proposal is based on an accurate estimate of the total ambulatory, wheelchair-bound arx stretcher-bound population of the EPZ hospitals.
14.
Whether LILCO's proposal includes specific designation of reception hospitals which are capable and willing to accommodate, treat, and provide necessary services to hospital evacuees, and if so, what they are, and where they are located.
15.
Whether any natural disaster evacuation plcns which the EPZ hospitals may have are adequate for a radiological emergency, and whether they could be implemented by hospital personnel to provide adequate protection du ing a radiological emergency at Shoreham.
16.
Whether the 14% hospital vacancy figure used in LILCO's proposal has any applicability to the reception hospitals to be relied upon under that proposal.
17.
Whether LILCO has properly and accurately accounted for all relevant variables in calculating its evacuation time estimates..
t 18.
What assumptions underlie LILCO's new evacuation time estimates (including, for example, those relating to locations of reception hospitals, numbers of available vehicles and drivers, locations of vehicles at the start of a hospital evacuation, timing of nctification and dispatching of vehicle drivers, evacuation speeds, etc.) and whether they are valid, accurate, and appropriate.
19.
Whether designated reception hospitals are capable of monitoring incoming evacuees for radiological contamination.
20.
Whether LILCO has identified sufficient hospital beds, medical resources and vehicles to accommodate evacuees from the Suffolk County Irfirmary.