ML20149F105

Corrected NRC Staff Response to Lilco Motion for Summary Disposition of Contentions 1,2 & 9 - Immateriality.* Licensing Board Should Grant Summary Disposition of Contentions 1,2 & 9

ML20149F105
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/02/1988
From:	Bachmann R NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20149F096	List: ML20149F092 ML20149F105 ML20149F128
References
OL-3, NUDOCS 8802120027
Download: ML20149F105 (10)

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_ mo_-._ .m 02/02/88 I, cxstit0 UWit llNITED STATES OF AMERICA I g g g .3 NUCLEAR REGULATORY COMMISSION 0FrtcE OF pt IAn f ;

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 00CKciftgt"VICl-In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

linit 1) )

NRC STAFF RESPONSE TO LILCO'S MOTION FOR SUMMA".Y DlS_POSlYlON OF CONTENTIONS 1, 2, AND 9 - IMMATERIALITY

1. INTRODUCTION On December 18, 1987 Applicant filed "LILCO's Motion for Summary Disposition of Contentions 1, 2, end 9 - Immateriality" ("Motion"). In its Votion Applicant argues that the facts demonstrate that the functions set forth in the subject contentions, which App!! cant is precluded from ,

performing due to its lack of legal authority, are not material in i complying with regulatory requirements. For the reasons discussed l below, the Staff supports App!! cant's Motion.

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11. BACKCROUND in CLI-86-13, 24 NRC 22, 32 (1986), the Commission remanded LILCO's argurrents that it was Immaterial that LILCO lacked authority to implement certain features of its emergency plan, including traffic control. l.lLCO argued that traffic actions are not required by regulation and that it is immaterial that LlLCO might lack legal authority to i 9

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. Implement them. O in remanding these arguments, the Commission recognized that some of these measures although not particularly mentioned in regulatien might be necessary for reasonable assurance of adequate protection of the public. & It concluded that "LI LCO's materiality argument presents issues that are primarily factual rather than legal", and that they should be determined as a factual . matter upon remand. Id. The Commission further concluded that the protection afforded under this argument should be measured against a standard "that would require protective measures that are generally comparable to what might be accomplished with governmental cooperation. " Id.

Although speaking in the context of LILCO's realism arguments which were also remanded at that time, the Commission Instructed the Board to use the existits record "to the maximum extent possible." Id. 2,/

In the instant Motion, LILCO asks for summary disposition of Contentions 1, 2 and 9 on the basis of the record already compiled in this proceeding, which demonstrates that the functions at issue are immaterial, it argues that the tasks set out in the subject contentions are not required by regulation, and that adequate protective measures, generally comparable to that w hich might be accomplished with governmental cooperation, can be taken without legal authority to perform the acts set 1/ The Conimission had under review, inter alla, the Licensing Board decision on immateriality, LB P-8 5-12, 21 NRC 644, 913-919 (1985), l and the Appeal Board's affirmance of that decision, ALAB-818, 22 NRC 651, 676-78 (1985). i 2/ The Commission thereafter reaffirmed (and clarified) CLI-86-13 in its .

amendment to 10 C.F.R. 5 50.47(c). 52 Fed. Reg. 42078  !

(November 3,1987). '

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. out in the subject contentions. Contention 1 deals with the inability of LILCO to carry out its emergency plan because it could not direct traffic under New York State law. 21 NRC at 958. Contention 2 deals with the prohibitions under New York State law to LILCO blocking traffic, setting up roadway barriers and channelling traffic as provided for in the LlLCO plan, id, at 959. And Contention 9 deals with prohibitions in New York law preventing LILCO from dispensing fuel at roadside as provided in the LlLCO plan. Id. at 962. U For the reasons hereinafter set forth, the Staff supports the subject Motion as LILCO's ability to perform the tasks detailed in Contentions 1, 2 and 9 is immaterial. The actions set out in those contentions are not required by regulation, and protective measures generally comparable to what rnight be accomp!Ished with government cooperation can be taken without legal authority to perform the acts set out in Contentions 1, 2 and 9.

Ill. DIS CUS,SION A. Contentions 1 and 0 Contentiens 1 and 2 deal with LILCO's ability to guide traffic and l control roadways in the event an evacuation is recommended as a result of l

! a radiological accident. It has been established that NRC regulations do I not explicitly call for the guidance or the control of roadways should an evacuation be necessary in event of a radiological emergency. See i

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By order of September 17, 1987, the Licensing Board denied a i l motion for summary disposition of these contentions. By order of l December 28, 1907, the Board set times for responding to the i renewed motions to summarily dispose of Contentions 1-10.  :

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ALAB-818, 22 NRC at 677; LBP-85-12, 21 NRC at 917. The Commission has indicated that where measures, such as traffic control, are not explicitly mentioned, it is a factual issue of whether they are necessary to protect the public, and it is to be seen If "protective measures that are generally comparable to what might be accomplished with governmental cooperation" can be provided without such cooperation. CLl-86-13, 24 NRC at 32.

The guidance of NUREG-0654 for complying with the requirement of "a range of protective actions", only suggests special traffic control as an ,

appropriate action that may be censidered. Urbanik Affidavit f 8. It is r.ot necessarily a requirement that the ETEs or emergency plans include special traffic controls to enhance capacity. Id. The intent of ,

NUREC-0654, Appendix 4, is to identify potential traffic control strategies for consideration by local authorities. Urbanik Affidavit i 9. There is no intent in the guidance of NUREG-0654 to require local authorities to implement strategies they believe to be inappropriate, but rather the intent is to identify strategies which are potentially effective in aiding evacuatien, and are also within the resources of local authorities, &

An "uncontrolled" evacuation is not an "unplanned" evacuation.

Urbanik Affidavit f 7. There is an evacuation plan for the Shcreham EPZ end residents are to be informed of apprcpriate evacuation routes. Id.;

See PID, 21 NRC 781-795. This plan sets out routes and sets out the manner in which the pub!!c in the EP7. Is to evacuate. Id.

The record here demonstrates that comparable protection is afforded l

to the public in the event of an evacuation regardless of whether LILCO i

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has the authority to impiment the t raffic control measures in its t

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!, emergency plan. Evacuation time estimates for Shoreham both with and without traffic control, with their ranges of uncertainty, are in the Shoreham emergency plan and in this record. See generally, PID, 21 NRC 781-95, P05-09. The Licensing Poard, after extensive litigation, deterreined ETEs for both controlled and uncontrolled evacuations. It found:

The results from KLD stuees show that if the traffic control plans work as expected, then evacuation of the Shoreham EPZ can be accornplished in about 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br />, 55 minutes. (The Board prefers not to overstate the precision with which this might be done . It is more realistic to think of this estimate as being approylmately 5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> with the understanding that KLD believes on a subjective basis that a; real evacuation might be accortplished within about 30 minutes either way of that nominal estiraute. ) Cordero et al., (f. Tr. 2337, at 62; Tr. 7749-51 (Lieberman). If the evacuation had to be done under uncontrolled ccnditions without traffic guides (but with route compilance), the evacuation time would increase to 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br />, 30 minutes under normal roadway conditions and to 7 hours8.101852e-5 days <br />0.00194 hours <br />1.157407e-5 weeks <br />2.6635e-6 months <br />, 55 minutes (cbout 8 hours) under adverse winter weather cerditions. Cordaro et al., ff. Tr. 2337, at 62, Attach. 6, cases 24, 25. Evacuation time for the entire EP2 is relatively ,

Int.cnsitive to the assun@ibed rescr in the Plan.tfon that Icf.' at evacuees 65-73, mil comply with the Attach.

evacuation Y2. routes If 25% of p'tWe ~

population fall to Tollow recomreended evacuation routes while traffic guides where in place, there w ould be no affect on evacuation times. If 50% of the populatier deviated from recommended routes with traffic guides in place, the time to evacuate would increase by about 30 minutes (from 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br />, 55 minutes to 5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br />, 30 mir utes).

Id. at 69, Attach. 6, cases 12, 31, 37. In cases where either ET or 50% non-compliance with prescribed routes was postulated I and r.o traffic guides were presentjnon-corrpliance -- l uncontrolled cases), the evacuation time did not increase ~

" Evacuation could 5till be

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relative to the Ifncontrolleo case.

accotillshen in either B hours, 30 minutes under rermal roadway conditions or about 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> under adverse winter conditions. Id. at 69, Attac! 24, 33, 34 Id.  !

at 791-92 [ Emphasis added). g 6, cases, cases  ;

4/ The Board found that the computer model used in generating ETEs by KLD associates, Applicant's censultant, is valid and reliable for j (FOOTNOTE CONTINUED ON Nr.XT PAGE) i

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l On the basis of these quantitative results the Board characterized them as "describing the comparatively low sensitivity of evacuation time to route compilance and traffic control." id. at 792. It further found:

Overall evacuation time is not sensitive to deviations in route  !

compliance by drivers because tradcoffs occur with regard to alternative routes and destinations. Although details of traffic flow change with the scenarios dnalyzed, the tradeoffs on routes and destinations tend to cancel one another albeit not r v lth p s ymmetry. Cordaro et al., ff. Tr. 2337, at 69-70. pfect Id.

The purpose of evacuation time estirrates is to provide information i for protective action deterrr.inations in the event of radiological emergency. As the Appeal Board stated in Phlfad,elphis Electric Co.

(Lirrerick Generating Station, Units 1 cnd 2), ALAB-836, 23 NRC 479, 486 (1986):

The purpose of an ETE is to provide information (i.e., the time  ;

required to evacuate the EP7 and any unusual problems) so  :

that emergency coordinators can decide what protective actions ,

(such as sheltering or evacuatien) might be necessary. The Con.rr.lssion's regulations, however, do not set any particuler

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(FOOTNOTE CONTINUED FROM PREVIOUS PACE) tbr use intended, end that KLD "is a recognized authority on traffic simulation". Id. at 783. This study further showed that a I

controlled evacuation in inclement weather would take 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> in the winter and 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br />, 20 minutes in the summer. Cordaro et al., ff.

Tr. 2337, at 62, Attach. 6, cases 19, 20.

l 5/ It was further stated that "[t]he Board is of the epinion that true evacuation times under extreme emergency circumstances are probably not predictable with more precision in any event". Id. at 724. And that "Li!.CO's evacuation time estimates over their full spectrum of scenarios ere reasonable statements of capability and not literal predictions of how a futurc evacuation reight play out". Id. at 808. The Board determined there was reasonable assurance trthat LILCO's evacuation time estimates are reliable within the lirrits of uncertainty identifled in the sersitivity analyses", and found that LILCO had met its burden of proof on the matter of evacuation time estimates, td.

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tirre limits for evacuatlov of the EPZ. Cincinnati Gas & Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit No. 1),

ALAB-727,17 NRQ,760,, 776-71 (1983), ,

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See also PID, 21 NRC at 7F2 %e estimates are themselves not precise, but as stated Consolidated ENfison Co. of New York (indlan Point, Unit No. 2), LBP-83-68; '}S NRCs 811, 970 (1983), inform protective action

.i , s u decisionnakers of uncertainty. "by providing a range of evacuation time estimates, and the range IS considerable." See also Duke Power Co.

(Catawba Nuclear Station, Units 1 and 2), LBP-84 37, 20 NRC 933, 999

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(1984).

This Board, upon examining evacuation planning and the evacuation time estimates, concluded that "the [LILCO) evacuation plan is not as brittle as fine crystal; but is in fact resilient and tolerant of reasonable deviations from comp!!t.iice." PID, 21 NRC at 794. It recognized that full compliance by evacue s with evacuation plans may not be achieved, but

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found that LILCO had reasonably estimated the magnitude of uncertainty in its sensitivity analysis which included studies withcut traffic guides.

Id. at 794-55. It therefore ordered a summary of that analysis be incorporated into the LILCO plan with a brief text "that alerts decisionmekt:rs to the fact of the uncertainty and the bounds of uncertainty in time cstimates for a range of realistic accident scenarios."

i Id.; Cf. Indian Point, supra. Thus, the record demonstrates that the LILCO plan accounts for any uncertainty which might be caused by the inability of LILCO to dispatch traffic guides or control roadways and that

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.' decisionmakers will be informed of the range of evacuation time estimates without traffic guides and roadway control. 6_/

Dased on the foregoing discussion, it is clear that the facts underlying Contentions 1 and 2 are not in dispute. The Licensing Board found that ETEs are "reasonable statements of capability and not literal predictions" and that LI LCO's ETEs are reliable within the limits of uncertainty. See PID, 21 NRC at 808. An uncontrolled, but planned, evacuation would take only about 90 to 120 minutes longer than a controlled evacuation, if half of the evacuating populace did not comply 7I plan with the route recommendations. -

The LILCO will alert decisionmakers to this fact. In view nf the bounds of uncertainty in any

-G/ AppIIcont has supported this motion with an affidavit from Edward B. Lieberman, of KLD Associates ("Lieberman Affidavit") .

Applicant argues, on the basis of this affidavit, that revised ETEs (contained in Revision 5 to LILCO's plan) show a 35 minute time differentlal between controlled and uncontrolled evacuations, that such a differential is within the margin of error as determined by the Licensing Board, and that therefore the c;ifference between controlled and uncontrolleo evacuations is immaterial. Motion at 10-13.

The Staff has examined these new ETEs. They are based on a revised network and increased population, which results in a different distribution of traffic from the previous analysis. Urbanik Affidavit i 4. This new analysis indicates the EPZ roadway network is capable of handling evacuating traffic nearly as well without special traffic control measures as with those measures in place, id.

The Staff believes the appropriate estimate for an uncontrofled evacuation would be one that includes some degree of noncompilance with evacuation routing. Id.; See PID, 21 NRC at 794. Usino the upper limit of noncompilance, TM, the revised ETEs, which range from 5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br />, 5 minutes to 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br />, 25 minutes, are essentially the same as the previous ETEs which ranged from 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br />, 55 minutes to 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br />, 30 minutes. Urbanik Affidavit S 6.

7/ In making these projections it is presumed the "normal police traffic

. control to handle normal incidents such as breakdowns of vehicles or

. traffic signals" will be present. Urbanik Affidavit,15.

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. evacuation time projections, this difference does not appear material. U Protective measures ' generally comparable to what might be accomplished with governmental cooperation, can be taken regardless of whether LILCO has the legal authority to perform the tasks set out in Contentions 1 and

2. These contentions are immaterial in this proceeding.

B. Contention 9 This contention alleges that Applicant lacks the legal authority to dispense fuel from tank trucks to autcmobiles along roadsides. The factual basis for the assertions in Contention 9 were previously litigated as Contentions 65.D and 66.F, which concerned road blockages and fuel disbursement respectively. In the PID, the Licensing Board rejected these contentions on the merits, and also noted that there is no specific requirement for supplying gas along evacuation routes in any regulation or guideline. 21 NRC at 797-98, 816. The Board found that the number of vehicles involved in actual incidents of road blockages would be modest relative to the total evacuation traffic and that reasonable means of mitigation exist. Id. at 797. The Board pointed out that reasonable means of mitigation exist for motorists and that there are common sense As the attached affidavit of Thomas Urbanik states, NUREG-0654

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does not require local authorities to imp'ement strategies they believe inappropriate, but rather to identify strategies potentially effective in ordering evacuation. Urbanik Affidavit 5 9. The noncooperation of local governments in planning or carrying out strategies of guiding traffic or controlling roadways, of itself, forecloses these authorities from raising questions concerning the appropriateness of the need for these strategies. See CLI-86-13, 24 NRC at 33, 10 C.F.R. 6 50.47(c)(1)(ill)(B); 52 Ted Reg. 42084-85 (November 3, 1967).

7 o remedies for cars out of gas: some people will buy fuel before they evacuate; stalled cars can be pushed off the road; and drivers can coast off the road when they run out of gas. Id.; See Urbanik Affidavit i 10.

The Board further found that if the provision of LI LCO's plan for distribution of fuel were implemented, it could provide only incremental enhancement of the evacuation. 21 NRC at 816.

Based on the factual record in this proceeding, the provision in the 1.!LCO plan regarding disbursement of fuel is not required to meet NRC regulations, and failure to implement this provision would have minimal impact on the evacuation times.

IV. CONCLUSION For the reasons discussed above, the Licensing Board should grant summary disposition of Contentions 1, 2 and 9.

Respectfully sub d, Richard G. Bachmann Counsel for NRC Staff Dated at Bethesda, Maryland this 2nd day of February 1988 e

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