ML20151A044
| ML20151A044 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/01/1988 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#288-6012 OL-3, NUDOCS 8804060219 | |
| Download: ML20151A044 (57) | |
Text
_ _ _ - _ _ _ - -
$6/h ,
.LILCO, April 1,1988 DCCKETED UNITED STATES OF AMERICA NUCLEAR REGULAT3RY COMMISSION W APR -4 P5:03 Before the Atomic Safety and Licensing Board [0bkibk C,"\ '
E!Wa.h In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S DESIGNATION OF RECORD AND PRIMA FACIE CASE ON 1
THE LEGAL AUTHORITY ISSUES (CONTENTIONS 1-2. 4-8. AND 10)
Pursuant to the Bored's order of February 29,1988,M LILCO hereby designates portions of the record that support its prima f acie case on the revised "legal authority" issues, Contentions EP 1-2, 4-8, and 10.E Consistent with LILCO's understanding of the February 29 order, this pleading is intended to be an outline of L!LCO's case, to be further developed, as necessary, by written testimony to be filed April 29,1988. LILCO provides here an outline of its rea-soning why the LERO Plan meets NRC requirements, particularly in light of the new emergency planning rule,10 CFR S 50.47(c)(1), and the principal parts of the record that support that reasoning. LILCO understands that neither LILCO nor the Board will f be limited in the future to the portions of the record cited in this pleading, since other l
parts of the record may prove to be relevant. See Transcript of Telephone Conference, l
February, 25,1988, at 19,286-87.
l 1/ Confirmatory Memorandum and Order (Ruling on LILCO's Motions for Summary Disposition of Contentions 1, 2, 4, 5, 6, 7, 8 and 10, and Board Guidance on Issues for l
Litigation) (Feb. 29, 1988).
2/ In some cases LILCO has cited testimony adverse to its position, in order to show
[for example) that an issue has been fully litigated. This does not mean, of course, that LILCO now accepts that adverse testimony as true.
BBO406g19$$$h22 pg A CK ppa
What additional facts are needed, if any, depends cn what the State and County say they will do in a real emergency. Thus far they have not revealed what they would do. In their answers to LILCO's first set of interrogatories, they say that they have no witnesses so f ar; the time for them to answer LILCO's second set of interrogatories has not yet run. With only two weeks lef t in the discovery period, it is likely that the Inter-venors will not reveal their case in time for LILCO to confront it in the written testi-many to be filed April 29. If not, then LILCO should be entitled to offer separate re-buttal testimony.
It is possiole that some of the procedures cited below may change, probably in minor respects, in future plan revisions. If they do, LILCO will advise the Board and parties.
Background
By way of background and context, LILCO repeats here its fundamental argu-ment:
- 1. Suffolk County and New York State, as well as all other government entitles, will use their "best efforts" to protect members of the public. 52 Fed. Reg. 42,086 col. 1 (Nov. 3, 1987), to be codified at 10 CFR S 50.47(c)(1)(1988).
- 2. Suffolk County and New York State have available to them an emergency plan (the LERO plan) that meets NRC requirements but for the lack of State and County participation. CPIDl/TBP-85-31, 22 NRC 410 (1985),
and PID, LBP-85-12, 21 NRC 644 (1985), affirmed in most respects. ALAB-832, 23 NRC 135 (1986), ALAB-847, 24 NRC 412 (1986), review declined, Memorandum of Mar.12,1987 from John C. IIoyle for Board and Par-ties; ALAB-855, review declined, Memorandum of June 23, 1987 from Samuel J. Chilk for Board and Parties; l
l l 3/ "CPID" refers to the Board's Concluding Partial Initial Decision, LBP-85-31, 22 NRC 410 (1985). "PID" refers to the Partial Initial Decision, LBP-85-12, 21 NRC 644 (1985).
l 1
- 3. Suffolk County and New York State have available to
> them a full complement of resources and utility and ,
other personnel designated and trained to implement the plan without help (or a fortiori to advise govern-ment personnel on how the plan works). See, el, PID, l 21 NRC at 895 (issue of strike by LERO employees).
- 4. Suffolk County and New York State must be presumed to generally follow the LERO Plan except to the extent i i
they put forth timely, good-f aith alternatives. 52 Fed.
Reg. 42,086 col.1 (Nov. 3,1987), to be codified at 10 CFR S 50.47(c)(1)(1988).
- 5. Any such alternatives must be as good as or better than the LERO Plan; otherwise they are not the "best ef-fort." 52 Fed. Reg. 42,086 col.1 (Nov. 3,1987), to be codified at 10 CFR S 50.47(c)(1)(1988). .
I Given these premises, which LILCO believes are not in dispute for the purposes of this i
proceeding, it follows that LILCO has carried its burden and is entitled to a full-power i
license. This is so only in a case, like the Shoreham case, where there is a complete \
utility-only plan that by itself meets NRC requirements, but for the nonparticipation of
! the state and county. Given such a plan and the new NRC rule (52 Fed. Reg. 42,086),
the Intervenors must either generally follow the LERO Flan (which meets or exceeds 1
- NRC requirements) or do something better (which a fortiori would meet NRC require-ments). For example, the Suffolk County Police testified at length that they would di- ,
rect traffic better than LILCO if they were doing it. See, el, Roberts et al., ff. Tr.
I 2260, at 18 (more intersections should be manned). That is fine. The LERO Plan meets ,
or exceeds NRC standards already. If the police have a better plan, it can only make things better, j The only way the Intervenors could (theoretically) win their case would be by proving that they would degrade the response below NRC standards, despite their best efforts, despite New York State's expertise, and despite the availability of the full com- l plement of LERO personnel. LILCO submits that it is impossible to prove such a case.
it s impossible to prove that the Interveners would wilfully degrade the response
. - - - - - - - - - _ , _ . _ _ . . . - ~ - - , , . - . . , , - , - . - . - ~ . . - . . . . - . -_ -__. - - ,. - - , -- - -. --..._ , --
4 I because that would not be "best efforts." It is impossible to prove they would degrade r
the response by incompetence because there is a utility person able to do (or to advise about) each act called for by the plan. Any argument the Intervenors might make to the contrary would be an improper challenge to the NRC regulation, prohibited by 10 t C.F.R. S 2.758(a) (1987).
l The Intervenors may argue that the LERO Plan has not been fully litigated be-I cause the Frye Board found "fundamental flaws" and because there are still three re-I mand issues to be tried (hospital ETE's, school bus driver role conflict, and EBS) and an-other (reception centers) to be decided. This argument, while technically correct at I
4 present, is irrelevant, because it would not be true at the time of an emergency. Be-fore Shoreham can operate at 100 percent power, those recorj shortcomings will have to be corrected, ona way or another. Thus the argument that Suffolk County Police (for example) would not use the LERO Plan because it has allegedly been discredited by the i
Frye Board decision does not work for the circum.5tances of a real emergency, when the
, deficiencies would have been corrected.
4 General Principles
\
- Some parts of LILCO's prima facie case go to general principles that apply to more than one of the contentions. We address those general principles immediate!y
\ below.
Limits to the Board's Jurisdiction and Law of the Case The first "general principle"is that issues already decided may not be relitigated.
This is not a matter of discretion; the Board lacks jurisdiction to reopen settled issues:
Our earlier decisions make it abundantly clear that when a j
discrete Lvue has been decided by an appeal board and the Commission declines to review that decision, agency action is final with respect to the issue and our jurisdiction is termi-
' nated. This 1,5 the case even when other issues may still be j before us.
l 4
u _ _ _ _ _ _ _ _ _ _ _ _ _ .
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Pewer Plant, Units 1 and 2),
ALAB-782,20 NRC 838,841 (1984).O Similarly, a board on remand has jurisdiction only over the issue remanded to it.
Carolina Power and Light Co. (Shearon flarris Nuclear Power Plant, Units 1-4), ALAB-526,9 NRC 122,124 n.3 (1979).
In particular, the PID and CPID have been affirmed by the Commission and be-come final agency action except with respect to the legal authority and other re-manded issues. The findings of the PID (21 NRC 644) and CPID (22 NRC 410), except as remanded, cannot be challenged now.N Memorandum and Order, LBP-87-26, 26 NRC 201, 226 (1987). For example, the Suffolk County Police have already testified that LILCO's traffic control plan is inadequate to meet NRC standards, and the NRC has de-cided otherwise. The Intervenors are not permitted to argue again that the LERO Plan Lslnadequate.
4/ Where finality has attached to some but not all issues, af, peal board jurisdiction to entertain new matters is dependent upon the existence of a "reasonable nexus" be-tween those matters and the issues remaining before the board. Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-551,9 NRC 704, 707 (1979). There is no such nexus between the issues already decided and the legal au-thority issues now before the Board.
5/ It is also pertinent that in "Phase I" of this proceeding the Intervenors settled a number of issues that bear on the present issues. Following Tr.14,719 the Board will
. find settlement agreements resolving, among other things, issues about the following:
the effect of weather on the sirens the adequacy of provisions in the onsite plan for using federal resources
- the number of radiological monitoring teams provided by LILCO communications from the Shoreham site
In particular, the Intervenors may not dispute the following propositions:
- 1. The LERO Plan meets NRC requirements, but for the Interve-nors' nonparticipation (and but for the remand and exercise-related issues, which will be separately litigated and re-solved). See generally PID, 21 NRC 644, and CPID, 22 NRC 410.
- 2. The LERO traffic control plan meets NRC requirements.
PID,21 NRC at 805-09.
- 3. The LERO early notification system (sirens and tone alert ra-dios) meets NRC requirements. PID,21 NRC at 709,758-60.
- 4. The LERO prewritten EBS messages meet NRC requirements.
PID,21 NRC at 670,698.
- 5. The LERO Plan for perimeter control meets NRC require-ments. PID,21 NRC at 804-05.
- 6. The LERO EBS meets NRC requirements, except for the re-mand issue of coverage. PID,21 NRC at 763-64.
- 7. The LERO Plan for the ingestion pathway meets NRC re-
. quirements. PID, 21 NRC at 877-78; see also PID, 21 NRC at 884 ("The Board has no trouble finding that LILCO has the ca-pability to perform the four identified as state functions."$ pecific tasks that have been
- 8. The LERO Plan for making protective action decisions meets NRC requirements. P!D,21 NRC at 775-81.
- 9. The LERO Plan for recovery and reentry meets NRC require-ments. P!D,21 NRC at 880,882.
- 10. The LERO Plan for removing road impediments meets NRC requirements. PID,21 NRC at 719,809-12.
- 11. The Shoreham 10-mile EPZ meets NRC requirements. PID,21 NRC at 701-07; CLI-87-12,26 NRC 383 (h'ov. 5,1987).
Even when a board still retains jurisdiction, it should adhere to its earlier deci-sions as the "law of the case," unless it "is convinced that its declared law is wrong and s/ The Board went on, of course, to doubt that the four were al_1 that the State would do. 21 NRC at 884-85. But the State had the chance to put on evidence about what it would do and declined to do so. Hence there was no evidence to support the Board's doubt. The contention at issue, Contention 92, was later summarily resolved.
l l
j
t .
would work an injustice." Public Service Company of Indiana (Marble Hill Nuclear ,
Generating Station, Units 1 and 2), ALAB-493,8 NRC 253,260 (1978).
The "Emergency Consensus" Although they are precluded from doirig so by the new NRC rule, the Intervenors i may continue to argue that they would not cooperate with LILCO in a real emergency. ,
The new rule precludes this argument because treating the utility like an enemy in a di-saster would not be "best efforts." See 52 Fed. Reg. 42,086 col.1 (Nov. 3,1987), to be i codified at at 10 C.F.R. S 50.47(c)(1)(1988).
i Totally apart from the new rule, the record in this case shows that people in an emergency put aside partisan differences and become cooperative. For example:
PID,21 NRC at 674 PID,21 NRC at 794 Cordaro et al., ff. Tr. 831, at 18-20 Cordaro et al., ff. Tr. 3857, at 25-27 Cordaro et al., ff. Tr. 6685, at 12 Tr. 870-71 (Dynes)
Cordaro et al. (Coatention 65, Supp. II), ff. Tr. 3851, at 25-27 Cordaro et al., ff. Tr.1470, at 129 Urbanik, if. Tr. 3430, t 11,12 Tr. 3450-51 (Urbanik)
LILCO Ex.1 (reception center proceeding), at 47-48 Moreover, the Intervenors have admitted they would try to stay in co.vact with LILCO or LERO or both in an emergency. Admitted Fact 46.E (Of course they wculd LILCO would be the one with the best information about the accident.) And, under the "best ef forts" principle, it can be concluded that they would stay in contact for the par-pose of helping people end not of hurling invective. Indeed, the Intervenors' statements
- that they would not cooperate with LILCO are a perfect illustration of how preemergency intentions are unreliable in predicting emergency behavior. See Tr.
l 1086-87,1103-04 (Mileti),1104 (Sorensen),1105 (Johnson).
I i
) 7/ "Admitted Facts" refer to the numbered statements of fact attached to LILCO's 1 5econd Renewed Motion for Summary Disposition (March 20,1987) and not contested by the Intervenors. See Memorandum and Order, LBP-87-26,26 NRC 201,225 (1987).
(
LILCO does not, however, designate the evidence and Board findings on the I ;
"emergency consensus" as part of its prima f acie case, because they are to some extent redundant of the new rule. But we may have occasion to refer to them again if the In-tervenors argue that they would be uncooperative in an emergency.
Cuomo v. LILCO -
The lower courts' decisions in Cuomo v. LILCQ, Consol. Index No. 84-461G (N.Y. <
l Sup. Ct. Suffolk Co.1985), aff'd,127 A.D.2d 626, 511 N.Y.S.2d 867 (2d Dep't 1987), :
which held that LILCO lacked "legal authority" to implement its emergency plan, have ,
now been reversed as no' n y.Lsticiatie Qgmo v. LILCO, No. 3, __, N.Y.3.2d (Feb.
17,1988).N l J
The reversal of Cuomo v. LILCO has implications for this litigation. First, it l climinates the basis for Contentions 1-10. Second,it means that there is no court deci-sion holding that a private party may not,take action without governmental permission in an emergency, j i Delegation of Police Pow 0r i
i
! The demise of Cuomo v. LILCO also leaves the Intervenors with no court deci-sion supporting their claim that a utility plan is an unlawful delegation of the police .
- power." Nevertheless, they may continue to argue it, t Accordingly, LILCO designates the following affidavits, which the Intervenors t
have not contradicted, to show that in fact jarivate parties routinely do things like di-recting traffic:
i i
8/ Moreover, the argument that using the emergency plan would vluate the state [
statutes named in Contentions 1-10 is frivolous; for example, Contention 1 says essen-tially that directing traffic in an emergency is to commit the crime of "intentionally [
obstructing, impatring or perverting" the government. See N.Y, Penal Law S 195.05 (McKinney 1988 Supp.), etted in Contention 1. l
. - _ - -_-_ - L
9 i
Affidavit of Charles A. Daverio on LILCO Responses to Re- '
quests by Local Law Ertforcement Officials for Pul41c Safe-
- ty Assistance (Dec. 16, 1987)
Affidavit of Jay Richait! Kessler on Directing Traffic, Training PubUc Workers for Emergency Response, and Or- ,
I dcring !!vacuations (Dec,14,1987)
Affidavit of John D. Leonard: Jr., in Support Of ',lLCO's Mo-tions for Summat? Disposition of ContentioEs 1-10 (Dec.
10, 1987) t See also:
Tr.12,071-72 (Babb) (private pardes Grected traffic during
- New York City blackput)
Many Resourens Avallable in Af termath of an. Emergency a
Another principle for this proceeding is that there cannot be insufficient re-sources to respond to a radiological emergency, especially in the af termath such as is ;
addressed by Contentions 7, 8, and (the Intervenors now claim) 10.
I There are two reasons for this conclusion. First: LILCO has 9n its own provided all the "rosources" (people, buses, ambulances, radiological monitoring equipment, ra-dios, strens) to implement its plan f ully.EI See, el:
PID,21 NRC at 747-49 (issue of attrition from LERO resolved in LILCO's favor)
PID,21 N'tC at 895 (issue of strike by LERO workers resolved in LILCO's f avor) i Second, the record shows without contradiction that any major radiological emergency would produce an enormous influx of aid, as the Three Mlle Island accident did. See i LILCO Ex.1 (Crocker et al. direct testimony in reception centers remand), at 54; see 2/ Also, as the .ecord in the reception centers remand proceeding shows, LILCO
- has agreements with many other organizations to provide help
i i LILCO Ex. I at 52-53 Tr.17,656-60 (Crocker Dreikorn, Watts)
Tr.17,724-27 (Linnemann, Crocker) l l
l i _
a'50 Tr.18,424 (Baldwin): Tr.13,566 (Porter). In particular, following any major ra-diological emergency, many government entities would assist:
Tr.10,500-10 (Weismantle)
Cordaro et al. (Ingestion Pathway), ff. Tr.13,563, at 38-39 Tr.13, 702-06 (Daverlo, Watts)
Indeed, the record shows that thet;e are typically too many helpers, not too few.
Cordaro et al., ff. Tr. 831, at 17; Tr. 919,1040-41 (Dynes). And of course, under the "best efforts" principle of 10 C.F.R. S 50.47(c)(1), the enormous resources of Suffolk County and New York State would be used to help protect the public.
Tne Federal Role Mtich of the aid referred to above would come from the federal government.
See, e.g.:
P!D,21 NRC at 726-27 (communication with federal response agencies)
. LERO Plan at 2.2-1 through 2.2-5 LERO Plan, Attachments 2.2.1 and 2.2.2 First, the DOE-RAP team is included in the plan and is stationed only six mues from the Shot'ah;m plant:
PID, 21 NRC at 741-42 (communication with DOE-RAP Teams)
Plan, Attachaient 2.2.1, p. 3 of 17 (DOE role)
Baldwin et al., ff. Tr.12,174, at 9 (EBS), 27 (notification to DOE), 31 (Communication with FEMA et Pl.), 63 (tow trucks)
Baldwin et al., if. Tr.14,151, at 45 (dose assess.ner,t functions draw on DOE resources)
Baldwin et al., ff. Tr.14,151, at 37-38 (communications with DOE-RAP field teams)
Baldwin et al., ff. Tr.14,2s2, at 45 (corrected) (nomogram)
Baldwin et al., ff. Tr.14,292, ai 45 (corrected) (primary re-sponsibility for fic!d monitoring and interpretation of the data 5 assigned to DOE-RAP personnel)
Tr.1155,1174 (Weismantle)
Tr.10,616 (Clawson)
Second, the federal government has a radiological response plan designed post-TMt to bring to bear the enormous resources of the federal government. The Federal
Radiological Emergency Response Plan (FRERP),50 Fed. Reg. 46,542 (Nov. 8,1985), as-sumes that the "resources of the Federal agencies will be made available during ra-dialogical assistance operations." [d. at 46,544 col. 2. This goes beyond radiological monitoring and assessment and includes the resources of FEMA, the NRC, EPA, the De-partment of Health and Human Services, DOE, the Department of Agriculture, the De-partment of Defense, the Department of Commerce, and the Department of the Interi-or. I_d. at 46,551 col. 2. The FRERP provides that The Department of Energy, during the initial phases of the e nergency, and the EPA thereaf ter, will work with the ap-propriate State and local agencies to coordinate offsite ra-diological monitoring and assessment activities. DOE or EPA will assess monitoring data and present them to the CFA and appropriate State agencies.
I_d. at 46,545 col. 2. See also Region I Radiological Assistance Program (July 15, 1985);
Federal Radiological Monitoring and Assessment Plan (July 15, 1985).
Third, the NRC Staff testified that they would act as an independent deci-sionmaker:
The NRC Staff has testified that the NRC will readily step in to fulfill the role of independent decisionmaker. PID,21 NRC at 686.
The Board rejected this testimony because the NRC's procedures were "ill-defined." Ld.
But the Appeal Board reversed, and LILCO's position prevailed, largely on the basis of "realism." ALAB-847, 24 NRC 412, 424-29 (1986), review declined in letter of March j
12, 1987. The evidence is that the NRC Staff would be a resource for the State and County:
Schwartz & Sears, ff. Tr.15,143 Tr.15,242-43 (Sears)(NRC could order LILCO to sound sirens)
Tr.10,510 (Weismantle),10,513 (Cordaro)
Tr.15,223-36 (Sears, Schwartz)
Intervenors' Familiarity l
with the LILCO Plan The Commission has said there are unanswered questions about the familiarity of
I .
State and County officials with the LERO Plan. CLI-86-13, 24 NRC at 31 (1986). As with the other issues raised by Contentions 1-10, however, the existing record answers the questions.
There is evidence in the evidentiary recorG that the Suffolk County Police re-viewed an early draf t of what eventually became the LERO Plan:
LILCO Ex. 2, 12-18, 22 Tr. 4672-76 (Regensburg).
There is also evidence that Suffolk County Police officers reviewed the LERO Plan itself, for the purpose of testifying against it:
Roberts et al., ff. Tr. 2260 Regensburg et al., ff. Tr. 5416 Indeed, Suffolk County police officers have testified they are "familiar" with LILCO's plan. See, e.g.:
Affidavit of Richard C. Roberts (Feb. 10,1988); at 1 (accom-panying Intervenors' February 10, 1988 answers to LILCO's Motions for Summary Disposition)
(The Intervenors argue, however, that their witnesses are "familiar" enough to testify but not to "implement" the plan.)
The record also shows that the State has experience in planning for other nucle-ar plants:
Admitted Facts 34,35,36,37,38,39,45,50,51,61,62 Cordaro & Weismantle, ff. Tr.13,899. Att.1010_/
New York State Ex.1 (reception centers proceeding), at 1-3 and Exhibits 1-3 (professional qualifications of State REPG witnesses)
Moreover, it is contrary to the "best elfort" principle (10 CFR S 50.47(c)(1)) and contrary to Commission precedent to suppose that the State and County would keep 10/ LILCO attempted to present testimony on the State plan in connection with Contention 92, but much of it was stricken. See Cordaro & Weismantle, ff. Tr.13,899, at 3-4, 5-6, 8, 9-10, and Attachments 1-9,11.
I
themselves wilfully ignorant of the LERO Plan af ter the Shoreham plant reached full-power operation:
(WJe are confident that if the Commission upholds the Li-censing Board's finding that an adequate emergency plan is feasible with State and local participation, the State and County will accede to that judgment and will provide the par-ticipation needed to make the plan successful.
CLI-85-12,21 NRC 1587,1589 (1985).
Even if one assumes, however, that the State and County are unf amiliar with the LERO Plan on the day of some future accident, then their familiarity is still adequate because LERO and the federal gcVernment will provide the necessary "familiarity."
The "best efforts" principle dictates that the State and County would give LERO people permission to do needed tasks or at least listen to the information LERO (and the feder-al. agencies) could provide; clearly the State and County would not let their unfamil-larity harm the public.
As a general matter, the specific duties of emergency response personnel under the LERO Plan are not "complex":
PID,21 NRC at 750 (general),756 (traffic guides)
Baldwin e_t_al., ff. Tr.14,151, at 104 (specific duties of emer-gency response personnel are not in most cases complex)
Tr.14,458 (Keller, McIntire) f The job of deciding on protective action recommendations (that is, whether to evacuate or shelter) can require professional judgment. Tr. 8789-815 (Cordaro et al.). But the Shoreham plant staff, LERO's outside consultants, the DOE, the NRC Staff, and other federal agencies provide many advisers to assist the State and County in exercising that I
judgment.
Summary of Record on General Principles In short, LILCO designates the following portions of the record as its prima facie case that ample resources will be available as a general matter (including federal re-sources), that private parties can and do perform emergency tasks such as directing l
l
traffic, that Suffolk County has some familiarity with the LERO Plan, and that New York State is familiar with the principles of making protective action decisions:
Affidavit of Charles A. Daverio on LILCO Responses to Re-quests by Local Law Enforcement Officials for Public Safe-ty Assistance (Dec. 16, 1967)
Affidavit of Jay Richard Kessler on Directing Traffic, Training Public Workers for Emergency Response, and Or-dering Evacuations (Dec. 14, 1987)
Affidavit of John D. Leonard, Jr. in Support of LILC0's Mo-tions for Summary Disposition of Contentions 1-10 (Dec.
10, 1987)
Tr.12,071-72 (Babb)
PID,21 NRC at 726-27,741-42 LERO Plan at 2.2-1 through 2.2-5 LERO Plan, Attachments 2.2.1 and 2.2.2 FRERP,50 Fed. Reg. 46,542 (Nov. 8,1985)
Schwartz & Sears, ff. Tr.15,143 Tr.15,242-43 (Sears)
Tr.10,510 (Weismantle) l Tr.10,513 (Cordaro)
Tr.15,223-36 (Sears, Schwartz)
LILCO Ex. 2, 12-18, 22 Tr. 4672-76 (Regensburg)
Roberts et al., ff. Tr. 2260 Regensburg et al., ff. Tr. 5416 Affidavit of Richard C. Roberts (Feb. 10,1988) at 1 Admitted Facts 34-39, 45, 50, 51, 61, 62 Cordaro & Weismantle, ff. Tr.13,899, Att 10 CLI-85-12,21 NRC 1587,1589 (1985)
PID,21 NRC at 750,756 Baldwin et al., f f. Tr.14,151, at 104 The parts of the record that make up LILCO's case on each numbered contention are given below. LILCO's "bare bones" designation of the record is contained in a sec-tion entitled "Summary of the Record" for each contention (or, in the case of l
Contentions 1-2, each pair of contentions). The bare bones designation consists mostly of the LERO Plan and OPIP's, the PID, and the "Admitted Facts" from LILCO's Second Renewed Motion for Summary Disposition. Preceding each "Summary" section is a more detailed discussion of the record with additional citations not listed in the Sum-mary. These additional citations are not a necessary part of LILCO's prima facie case but are useful to explain LILCO's case or to anticipate arguments the Intervenors may make.
1-2 Traffic Control Contentions The rewritten Contentions 1-2 read as follows:
1-2. Whether LILCO's emergency plan and the best efforts response of the State and County governments will sat-isfy regulatory requirements concerning guiding traf-fic, blocking roadways, erecting barriers in roadways, and channeling traffic.
Legal Standards The applicable regulation for traffic control is 10 C.F.R. S 50.47(b)(10):
(10) A range of protective actions have been developed for the plume exposure pathway EPZ . . . .
The guidelines are found under NUREG-0654 Planning Standard J (particularly J.8 and
! J.10.1) and Appendix 4.
Record The "reasons for Traffic Guides" are discussed in the PID,21 NRC at 791. The purpose of the traffic control plan is to minimize evacuation time by using special traf-fic control tactics. Traffic Guides are used to facilitate flow and will attempt to en-sure compliance with the routes specified in the plan to the extent possible. PID, 21 NRC at 791.
l
The traffic control plan is OPIP 3.6.3 Traffic Control.E (Further details are given in Appendix A of the LERO Plan.) In particular, the 130 traf-fic control posts and the traffic movements to be facilitated and discouraged at each are in OPIP 3.6.3 Attachment 4 (Traffic Control Posts Listing).
The posts are activated in order of importance:
OPIP 3.6.3 Attachment 7 (Order in Which Traffic Control Posts Are Activated During Evacuation)
Cordaro et al., ff. Tr. 7043, at 25-26.
Consistent with a best-effort response, Suffolk County, when notified of a Shoreham emergency, would either dispatch police officers to team with trained LERO Traffic Guides or authorize LERO Traffic Guides themselves to control traffic. To aid in coordinating this effort, the LERO Plan now provides for the dispatch of a trained LERO coordinator to the Suffolk County Police headquarters in Yaphank. This coordinator will carry diagrams explaining the traffic control movements at each point specified in the LILCO Plan. LERO Traffic Guides will also be dispatched to each traf-fic control point.with dosimetry and the appropriate equipment for carrying out the traffic control strategies specified for that control point.
The participation of the Suffolk County Police Department is addressed by OPIP 3.6.3 Attachment 15 (Participation of Suffolk County Police Department During a Radiological Emergency)
Babb et al., (Training), ff. Tr.11,140 (Vol. V), Module 12, at 26-27 of 37 OPIP 3.6.3 at 3a-3c, 6 OPIP 3.1.1, Attachment 10, at 3.
Suffolk County has a large, well-equipped police force:
M/ "OPIP's" are the implementing procedures for the plan. They were entered into the record at Tr.1204 (Rev.2) and again at Tr.15,590 (Rev. 3).
Admitted Facts 1,3,4,5,53,59,60 Roberts et al., ff., Tr. 2260, at 2-4 (Suffolk County Police De-partment has about 2600 officers,1800 of them assigned to the Patrol Division; Sixth Precinct has approximately 250 officers)
Regensburg et al., ff., Tr. 4442, at 18 (Police Department reached 99 off-duty officers in 43 minutes) Tr. 1238 (Dilworth) (at any time you have approximately 20-25 per-cent of your 2,600-odd officers on duty)
Tr.1237-38,1262-63,1268 (Dilworth) (training, experience, and esprit of police)
Moreover, the police testified that police officers are better able to direct traffic than LILCO Traffic Guides would be:
Roberts et al., ff. Tr. 2260, at 35-36, 39-44, 48,52-53 Tr. 2319-21 (Roberts, McGuire)
Cosgrove et al., ff. Tr.13,083, at 19-23 (on-the-job experi-ence needed to direct traffic)
Cosgrove et al., ff. Tr.13,083, at 55,63,76-77 n.6 (training of rookie police officers described)
Tr.13,091 (Cosgreve)
Tr.13,112 (Cosgrove, Fakler) (police officers directing traffic)
Tr.13,208-09 (Fakler)
This traffic plan was fully litigated. LILCO presented its testimony:
Cordaro et al. (Contention 65), ff. Tr. 2337 Cordaro et al. (23.C., D., H.), ff. Tr. 2337 Cordaro et al. (Joint Attachments), ff. Tr. 2337 Cordaro et al., (Supplemental on Contentions 23.D and 65), if.
Tr.2337 Amendments, ff. Tr. 2337 Cordaro et al., ff. Tr. 3857.
The NRC Staff also testified to the adequacy of the plan:
Urbanik, ff. Tr. 3430.
(
j The traffic plan was vigorously contested. The Suffolk County Police and Suffolk
' County's consultants testified that there were many shortcomings in the plan. See, e.g., Herr, ff. Tr. 2909; Roberts et al., ff. Tr. 2260; Pigozzi, ff. Tr. 2909; Polk, ff. Tr.
2909. For example, the police testified that LILCO's traffic channelization strategies would likely fall. Roberts et al., ff. Tr. 2260, at 17. Where these criticisms were cor-rect, LILCO has changed the plan:
PID,21 NRC at 809 Att. 2 to LILCO's Motion for Summary Disposition of Conten-tions 1 and 2 (Directing Traffic)(Dec. 18, 1987).
The Board considered the arguments and the evidence and decided that the traf-fic plan meets NRC standards:
PID,21 NRC at 697-98, 785,805-09.
In particular, LILCO's evacuation time estimates, calculated with the DYNEV model, were fully litigated. The model itself was accepted by the Board. PID,21 NRC at 783, 785, 805-08. The evacuation time estimates are in OPIP 3.6.1, Attachment 2.
The results of sensitivity studies, which examine the effects on evacuation time esti-mates of weather conditions, evacuees' compliance with routing assignments, and the "shadow phenomenon," are
- OPIP 3.6.1, Attachment 7. ,
Additional details are found in Appendix A. The latest time estimates are described in Affidavit of Edward B. Lieberman in Support of LILCO's Mo-tion for Summary Disposition of Contentions 1, 2 and 9 -
Immateriality (Dec. 14, 1987)
In outline, then, LILCO's prima f acie case is this: LILCO has analyzed the traf-fic network, developed a traffic control plan, and calculated evacuation times. This work has been approved by the Board. PID, 21 NRC at 781-809. The traffic control I
plan requires 165 people to man 130 traffic posts. LILCO has recruited and trained
( such people, staffing at 150% The jobs of the Traffic Guides are not particulary com-plex. PID 21 NRC at 756. Moreover, each guide has written instructions, including a t
l diagram, to show him what to do. Admitted Fact 55. Without any participation by the State or County at all, LERO Traffic Guides can carry out the traffic control plan.
l In addition, Suffolk County has a large police force. Admitted Facts 1, 3, 4,53.
l These policemen are trained to direct traffic. Admitted Fact 60. A substantial number l
l
of these police officers are on duty at all times. Admitted Fact 53. In addition, the po-lice can mobilize off-duty officers, although they have represented that it can be diffi-cult to reach them; in one drill, they reached about 99 off-duty officers in 43 minutes.
Regensburg et al. (Contention 26), ff. Tr. 4442, at 18.
Finally, the LERO Traffic Guides are trained to cooperate with the police. Babb et al. (Training), ff. Tr.11,140 (Vol. V), Module 12. Procedures have been provided for that very purpcse.
There is, in short, no reason on the existing record, and no reason LILCO can im-agine, why the LERO Traffic Guides alone, or with the Suffolk County police, using "best efforts," could not carry out the LERO traffic plan.
Moreover, even assuming that the participation of the police would degrade the response, such degradation would not materially affect the public health and safety.
~
Even if no Traffic Guides at all are used, the evacuation time (for the entire EPZ) is only about 35 minutes greater than when they are used:
Affidavit of Edward B. Lieberman in Support of LILCO's Mo-tion for Summary Disposition of Contentions 1, 2 and 9 -
Immateriality (Dec. 14, 1987), 1 7 The uncertainty for the evacuation dme estimates in any event is about plits or minus 30 minutes:
PID,21 NRC at 792,808 Hence it is improbable that anything the police would do could significantly hurt the public.
Summary of Record on Contentions 1-2 In short, LILCO designates the following parts of the record in support of its prima f acie case on Contentions 1-2:
PID,21 NRC at 697-98,781-809 '
OPIP 3.1.1, Att.10, at 3-5 OPIP 3.6.1 OPIP 3.6.3 w- es---- ,.. .. ~ ., ,
Plan, Appendix A Admitted Facts 1,3,4,5,53,59,60 Roberts et al., ff. Tr. 2260, at 2-4, 35-36, 39-44, 48, 52-53 Regensburg et al., ff. Tr. 4442, at 18 Tr.1237-38,1262-63,1268 (Dilworth)
Tr. 2319-21 (Roberts, McGuire)
Cosgrove et al., ff. Tr.13,083, at 19-23,55, 63, 76-77 n.6 Tr.13,091,13,112-16,13,208-09 (Cosgrove, Fakler)
Affidavit of Edward B. Lieberman in Support of LILCO's Mo-tion for Summary Disposition of Contentions 1, 2 and 9 -
Immateriality (Dec. 14, 1987)
- 4. Road Obstructions Contention The rewritten Contention 4 reads as follows:
- 4. Whether LILCO's emergency plan and the best efforts response of the State ec' 'ounty governments will sat-isfy regulatory rec:e - ts concerning removing ob-structions from ps - +
<e2 ways, including towing pri-vate vehicles.
. Legal Standards NUREG-0654 Criterion J.10.k calls for:
- k. Identification of and means for dealing with potential im-pediments (e.g., seasonal impassability of roads) to use of evacuation routes, and contingency measures; Record The provisions in the LERO Plan for removing road obstructions are found for the most part in OPIP 3.6.3 (specifically S 5.9 and Attachments 2,8,10,14,18, 22).
Contention 66 asserted that the removal of roadway obstacles would not be ade-quate. LILCO presented evidence that it was adequate:
Cordaro et al. (Contention 66), ff. Tr. 6685 Tr. 6726, 6734-35 (Lieberman)
FEMA agreed generally that the provisions for removing disabled vehicles were ade-quate:
Baldwin et al., ff. Tr.12,174, at 63 Tr.12,802-03 (Baldwin)
Suffolk County vigorously contested the adequacy of LILCO's plan. See, m:
Monteith et al., ff. Tr. 6868.
Suffolk County police also testified to their own experience in responding to accidents and breakdowns:
Roberts et al., ff. Tr. 2260, at 55 (During 1982 the Suffolk County police responded to approximately 10,000 incidents such as accidents and breakdowns just on the Suffolk Coun-ty portion of the Long Island Expresswa;. accidents and breakdowns occur every day)
Roberts et al., ff. Tr. 2260, at 57-59 and Attachment 8 (dis-cussing most likely spots for accidents and breakdowns)
The Board found LILCO's plan adequate:
PID,21 NRC at 809-12 PID,21 NRC at 719 (mobilization of tow trucks)
It is inconsistent with the "best efforts" assumption to assume that Suffolk County I would intervene at the height of an emergency and prevent the use of emergency equipment LERO has provided. C_f. Memorandum and Order (Granting LILCO's Summa-ry Disposition Motion on Contention 9) at 11(March 11,1988).
Summary of Record on Contention 4 The record supporting LILCO's prima facie case on Contention 4 is as follows:
PID,21 NRC at 719,809-12 OPIP 3.1.1, Att.10, at 3 OPIP 3.6.3 Cordaro et al. (Contention 66), ff. Tr. 6685 Tr. 6726, 6734-35
! Baldwin et al., ff. Tr.12,174, at 63 Tr.12,802-03 (Baldwin)
Roberts et al., ff. Tr. 2260, at 55,57-59
{
O &
- 5. Sirens and EBS Contention The rewritten Contention 5 reads as follows:
- 5. Whether LILCO's emergency plan and the best efforts response of the State and County governments will sat-isfy regulatory requirements concerning the activation of sirens and the directing of emergency broadcast sys-tem messages.
Confirmatory Memorandum and Order at 2 (Feb. 29,1988).
Legal Standards The applicable regulatory requirement is 10 C.F.R. S 50.47(b)(5), which provides as follows:
(5) Procedures have been established for notification, by the licensee, of State and local response organizations and for no-tification of emergency personnel by all organizations; the content of initial and followup messages to response organiza-tions and the public has been establithed; and means to pro-vide early notification and clear instruction to the populace within the plume exposure pathway Emergency Planning Zone have been establ.ished.
Pertinent regulatory guidelines include:
10 C.F.R. Part 50, Appendix E, S IV.D.3 NUREG-0654, Supp.1, Criteria E.5 and E.6.
! LERO Plan A description of the means by which the general public wil! be informed of a Shoreham emergency is given in the LERO Plan at i Section 3.3, page 3.3-4.
The Suffolk County Executive will be advised of the status of a Shoreham emer-gency and will be requested to give LERO permission to activate the sirens and broad-i cast EDS messages, as necessary, in accordance with I
L
, - , ,. . . . . ~ .- - .
OPIP 3.1.1 A ttchment 10 (Suffoix County Interf ace Procedure).
The method by which th7 sirfM are pnysicall! achvate-d is provided in OPIP 3.3.4 Prompt Notification System Activation.
~fhe procedures for the activation of the Emergency Broadcast System are found in OllP 3.8.? Imerger:cy Broadcast System Activation.
In particular, coordination between the local EBS (WPLR) and the New York State EBS is addressed in OPIP 3.8.2 5 5.1.4.
Details of the emergency procedures for WPLR are provided in OPIP 3.8.2 Attachment 1 (WPLR Shoreham EBS Procedure). ,
Prewritten EBS messages are found in OPIP 3.8.2 Attachment 4 (EBS Sample Messages).
Record In Contentions 24.T and 55-59, Intervenors asserted that, for a variety of rea-sons, the LERO Plan would not provide adequate notification to the public in an emer-gency. In Contention 15.E., Intervenors further argued that LILCO's prewritten EBS messages were not credible.
LILCO's written testimony on the public notification system was Cordaro et al., ff. Tr. 4842.
LILCO's written testimony on the credibility of its EBS messages was
- Cordaro et al., ff. Tr.10,396, at 104-05.
12/ This procedure assumes that the County is the lead agency in respnnding to a Shoreham emergency. The LERO Plan has the flexibility, however, to deal with an emergency in which the State assumes command and control.
- ,r- - - - - . _ --,ey,w --,..e-,w..--yw ---r-w m.-,-- -- r_ -, .,,+i--.---,,,, --,n, ,,c. ,-m_-,-, . - - , . . - - - , , . . .- , - - ,- , -ew., y - -
Suffolk County's testimony on Contentions 24.T and 55-59 was Regensburg et al., ff. Tr. 5416.
The County's testimony on Contention 15.E was Purcell et al., ff. Tr.10,727, at 70-72.
The Board rejected all of Intervenors' various contentions regarding the adequa-cy of LILCO's prompt notification system (PNS). In dismissing Contention 55, in which Intervenors alleged that delays wouid occur in the sounding of the sirens, the Board concluded that it could "see no reason to believe that the procedures of the LERO Plan would result in significant delay of the sounding of the PNS." PID,21 NRC at 758. The <
Board further found that Contention 56, which challenged the adequacy of LERO's route alert driver system, was without merit, noting that this backup notification meth-od was a "worthwhile and 6esirable addition to the requirements." PID,21 NRC at 759.
. Contention 57 and Contention 58 concerned the adequacy of tone alert radios for special facilities and LERO's procedures for verifying the notification of these facili-ties. The Board rejected both contentiord. The Board found that (1) the "inclusion of the tone alert radio system in the Plan is simply a commendably prudent addition to the requirements," 21 NRC at 760, and (2) LERO's procedure for verifying the notification of special facilities was "an effort to exceed compliance with the strict require-ments . . . ." which the Board could not fault "for being less immediate than the pri-mary means of notification." PID,21 NRC at 761.
The Board also dismissed Contentions 24.T and Contention 59 and approved LERO's plans for notifying boaters. Calling LERO's notification procedures a "system which layers backup upon backup," the Board concluded that the possibility of any "miniscule erosion of the multiple backup structure . . . seems to (the Board] Inconse-quential." PID,21 NRC at 762-63.
With respect to Contention 15.E, the Board concluded that Intervenors' criti-cisms of portions of LILCO's EBS messages were "bald, unsupported assertions" and that Intervenors had "not met their burden of going forward with them." PID, 21 NRC at 698.
The record thus establishes that LILCO's prompt notification system is adequate and that LILCO is capable of activating the system without significant delay.EI The only remaining question is how much delay, if any, can be expected in alerting the pub-lic given the "best efforts" participation of the State and County in the notification process. See CLI-86-13, 24 NRC at 31 (1986). The answer is that any additional delay occasioned by the need to obtain permission to sound the sirens and broadcast a prewritten message over the EBS will not preclude meeting the "about 15 minutes" re-quirement of Appendix E, S IV.D.3.
As noted above, Attachment 10 of OPIP 3.1.1 is an "interface" procedure that in-structs the LERO Director of Local Response to contact the Suffolk County Executive upon the Notification of an Unusual Event or the declaration of some higher Emergency Classification Level (ECL).E At an Alert or higher ECL, the interface procedure pro-vides, in part, as follows:
M/ The applicable regulatory guideline,10 C.F.R. Part 50, Appendix E, S W.D.3, i provides in pertinent part that the "design objective of the prompt public notification
. system shall be to have the capability to essentially complete the initial notification of the public within the plume exposure pathway EPZ within about 15 minutes."
M/ The notification of the Suffolk County Executive occurs in addition to the notifi- l cation of the New York State and Suffolk County Warning Points by the Shoreham Con-trol Room. See Shoreham Nuclear Power Station Emergency Preparedness Plan, EPIP ,
1-555.1.6. The adequacy of LILCO's methods of onsite notification was a "Phase 1" issue, resolved in LILCO's f avor. Moreover, LILCO's onsite notification capability has been successfully demonstrated in such circumstances as bomb threats. See, e_4, Af fi- '
davit of Douglas M. Crocker in Support of LILCO's Motions for Summary Disposition of Contentions 1-10 (Dec.15,1987); Affidavit of James W. Devlin in Support of LILCO's !
4 Motions for Summary Disposition of Contentions 1-10 (Dec.11,1987).
A. Advise the Suffolk County Executive of the status of the emergency.
Briefly explain the emergency classification system as established by the NRC and read him the description of the applicable Emergency Classification Level (ECL). Tell the Suffolk County Executive that consistent with N.Y. Exec. Law Art. 2-B, LERO is placing its person-nel and resources at the County's direction to assist in implementing the emergency response as set out in the offsite utility plan.
C. Explain that conditions at the plant, and meteorological considera-tions such as wind speed and direction, indicate that certain pro-tective measures should be implemented. Describe the protective measures that need to be implemented . . . .
D. Obtain the Suffolk County Executive's approval of the protective ac-tion recommendation. Request permission to activate the Prompt Notification System and broadcast an EBS message containing the protective action recommendation.
E. Immediate upon completing Step D, above:
- 1. Ask the Suffolk County Executive to stand by while you initi-are activation of the siren' system and the EBS. Suggest that, if he prefers, he should proceed immediately to the LERO EOC in Brentwood. If the Suffolk County Executive does choose to go to the LERO EOC immediately, give him your mobile phone number. End the call.
- 2. Implement OPIP 3.3.4.
In short, once the Suffolk County Executive has concurred with the need (if such a need exists) to sound the sirens and broadcast an initial message over the EBS,E! the M/ The "familiarity of State and County officials with the LILCO plan," CLI-86-13, 24 NRC at 31, would be of little or no importance in this circumstance, since the LERO Director would be providing the Suf folk County Executive with all the information that the County Executive would need (indeed, all the information which any county official could expect to be provided at any other nuclear plant site) to make the necessary ini-tial decision about notifying the public. The information which the LERO Director would have would be the data transmitted to him from the Shoreham Control Room using the New York State Radiological Emergency Data Form. See, e.g., Tr. 4874-75 (Renz). This Data Form is identical in all material respects to that used at every other nuclear plant site in New York. See Admitted Facts 32 and 33. FEMA's witnesses testified that if government officials chose to receive LILCO's messages, those offletals would be able to understand them, given the use of the standard Data Form. See Baldwin et a'., ff. Tr.14,161 at 106.
4 i
- - - - ,,,,,.g,._,.
"about 15 minutes" regulatory clock begins to run. At that point, the LERO Director would end the call and proceed to implement the procedures for sounding the sirens and activating the EBS.W Thus there is no inherent possibility of delay beyond that which the Board has already considered insignificant. See PID,21 NRC at 758.
Summary of Record on Contention 5 The parts of the record that LILCO designates as establishing the adequacy of LILCO's early warning siren system and EBS are the following:
Cordaro et al., ff. Tr. 4842 Cordaro et al., ff. Tr.10,396, at 104-05 Baldwin et al., f f. Tr.14,151, at 106 Affidavit of Douglas M. Crocker in Support of LILCO's Mo-tions for Summary Disposition of Contentions 1-10 (Dec.
15, 1987).
Affidavit of James W. Devlin in Support of LILCO's Motions for Summary Disposition of Contentions 1-10 (Dec.11, ,
1987).
PID,21 NRC at 698,756-63 Admitted Facts 6,7,14-28,30-33 Plan and Procedures Plan Section 3.3 OPIP 3.1.1 Attachment 10 OPIP 3.3.4 OPIP 3.8.2 OPIP 5.4.1 Attachment 10
- 6. PARS l
The rewritten Contention 6 on protective action decisions and recommendations reads as follows:
16/ The sirens are activated by a digital encoder system at the LERO EOC, the Shoreham Control Room, or LILCO's Brookhaven Substation. See Admitted Fact 7. The LERO Director has with him at all times a package containing the activation codes for the stren system and the EBS, along with prewritten EBS messages. See OPIP 5.4.1 ,
1 Document Control, Attachment 10. The LERO Director is therefore capable of imple-l menting OPIP 3.3.4 from any place on Long Island,24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day.
- 6. Whether LILCO's emergency plan and the best efforts '
response of the State and County governments will sat-isfy regulatory requirements concerning the making of decisions and official recommendations to the public on appropriate actions necessary to protect the public health and safety.
Confirmatory Memorandum and Order at 2-3 (Feb. 29,1988).
Legal Standards The applicable regulatory requirements include 10 C.F.R. S 50.47(b)(10h (10) A range of protective actions have been developed for the plume exposure pathway EPZ for emergency workers and the public. Guidelines for the choice of protective actions during an emergency, consistent with Federal guidance, are developed and in place, and protective actions for the inges-tion exposure pathway EPZ appropriate to the locale have been developed.
Pertinent regulatory guidelines include NUREG-0654 5 LH
- NUREG-0654, Supp.1, Criteria J.9 and J.10.
LERO Plan The LERO Plan describes the means by which protective action recommenda-tions are determined. For instance, the Plan at 3.6-1 provides that U.S. EPA guidelines are to be used in developing the appropriate action levels:
A - Protective Action Guides (PAGs)
The U.S. EPA document entitled "Manual of Protective Action Guides and Protective Actions for Nuclear Incidents", EPA 520/1-75-001 (September 1975) provides guidance in the de-velopment of action levels for the implementation of pro-tective actions.
During a radiological emergency an estimate is made of the radiation dose which affected population groups may poten-tially receive; i.e. the projected dose, refer to Section 3.5,
! Accident Assessment. A protective action is an action taken
- to avoid or to reduce the projected dose when tne benefits de-rived from such an action are sufficient to offset any undesirable features of the protective action. For protective actions to be most effective they must be implemented as soon as possible.
l
The Plan at 3.6-2 describes the specific standards to be followed in developing pro-tective action recommendations for the plume exposure EPZ:
Plume Exposure Limits Plume exposure PAGs for protective response actions for the general public are taken from the EPA document, "Manual of Protective Action Guides and Protective Actions for Nuclear Incidents", EPA-520/1-75-001 (September 1975). PAGs for the initial protective actions are 1 rem projected dose to the whole body and 5 rem projected dose to the thyroid. The PAGs for emergency workers are 5 rem whole body and 25 rem thyroid, except for lifesaving missions. Under such cir-cumstances, the PAG is 75 rem to the whole body. There is no lifesaving PAGs for the thyroid because, under these ex-treme conditions, total loss of the thyroid function could be permissible. It should be emphasized that exposure of emer-gency workers to this extent would occur only for the most compelling reasons, such as lifesaving missions, refer to Sec-tion 3.9, Radiological Exposure Control. The PAGs for plume exposure are summarized in Table 3.6.1, and are explained in Procedure 3.6.1, Protective Action Recommendations.
The Plan at 3.6-4 provides that protective actions will be determined and imple-mented in a coordinated effort involving responsible officials from the State and Coun-ty:
The Director of Local Response in coordination with State and County officials, based on the input from SNPS, the Radi-ation Health Coordinator, Evacuation Coordinator, DOE-RAP, NRC and FEMA representatives, will make the final decision regarding which protective action will be implemented.
The specific procedures for determining protective action recommendations for the plume exposure pathway are contained in OPIP 3.6.1 Plume Exposure Pathway Protective Action Recommendations.
The EPA Protective Action Guidelines are provided in OPIP 3.6.1 Attachment 4 (EPA PAG Guide).
A description of predetermined protective action recommendations in the event of General Emergency classifications is found in OPIP 3.6.1 Attachment 5.
If it becomes necessary to make an immediate protective action recommendation upon initial notification of the accident, the Suffolk County Executive will be briefed on the status of the emergency and the need for a protective action in accordance with OPIP 3.1.1 Attachment 10 (Suffolk County Interf ace Proce-dure).
Record The adequacy of the LERO Plan with respect to protective action recommenda-tions was addressed in the litigation of a cluster of five contentions: 61 (sheltering), 60 and 63 (selective sheltering and selective evacuation), 64 (wind shif ts), and 49 (nomogram). LILCO's written testimony on Contention 60,61,63, and 64 was Cordaro et al., ff. Tr. 8760.
LILCO's written testimony on Contention 49 was Cordaro et al., ff. Tr.13,909.
LII CO's oral testimony on these contentions was Tr. 8761-894 (Cordaro et al.,).
Suffolk County's testimony on Contention 61 was Finlayson et al., ff. Tr.12,320.
The County's testimony on Contentions 60,63, and 64 was Harris and Mayer, ff. Tr. 9777.
Intervenors presented no testimony on Contention 49, which was rewritten by the Board. See Order Ruling on LILCO's Motion for Summary Disposition of Contentions
(
i 24.B,33,45, 46 and 49 (April 20,1984).
The Board found in LILCO's f avor on all of these contentions. Rejecting Interve-nors' concerns raised in Contention 60 that, for various reasons, sheltering was not a l
viable protective action on Long Island, the Board noted that "in most cases a shel-l tering recommendation is a last resort to be taker, when no other action will result in a l
l smaller dose." PID, 21 NRC at 774. The Board further found with regard to a related
issurr that "LILCO's Plan is adequate to provide reasonable assurance that transients will receive notification of a shelte-ing recommendation." ?ID,21 NRC at 775.
With respect to Contentions 60 and 63, LILCO's witnesses testified that selective sheltering and selective evacuation options were added to the LERO Plan so that it would conform specifically to the New York State Radiological Emergency Prepared-ness Plan (the "Naw York State Plan"), which includes such strategies. Cordaro et al.,
if. Tr. 8760, at 10-11, 34. Absent instruction from New York State officials, LERO would recommend sheltering or evacuation for entire populations within given zones, not just for radiosensitive persons within those zones. Id. at 11,34. The Board found that while guidelines for selective sheltering and evacuation were not set forth in the LERO Plan it was never really intended that they should be . . . . The bare provision for selective action, keyed to instructions from the State Commissioner of Health, was included in the Plan merely to provide for cooperation with that official in the event that New York State should decide to help in an emer-gency. We do not see the absence of such guidelines as a f ail-ure to meet 10 C.F.R. S 50.47(b)(10) or NUREG-0654, S II.J.9.
PID,21 NRC at 776-77.
Contention 64 alleged that because the wind shif ts quickly on Long Island, the l LERO Plan should mandate automatic evacuation of all zones within a 7 to 10 mile radi-us of Shoreham. The LERO Plan instead provides for evacuation based on combinations of "keyhcle" segments, which vary depending on wind direction. The Board approved of this provision, finding that l no change in the emergency plan is needed . . . . Even if shore breezes or wind shear induced changes in plume direc-tion some distance away, accommodation could be made at the time of the emergency. The notion that a large circular zone should always be evacuated seems to the Board to be in-consistent with the node . of the "range of protective ac-tions" mentioned irs 10 C.F.R. S 50.47(bX10).
[
PID,21 NRC 779.
l
, _ . _ _ . . ~ - - . - - _. . _ _ _ _ _ - , _ - . , . _ . - ~ . _ _ . - - ~
Contention 49 alleged that the nomogram, the procedure by which the thyroid dose is calculated by relating lodine to total fission products, was not realistic. Interve-nors contended that the inherent inaccuracles in this method were unacceptably large; LILCO's witnesses admitted that the nomogram could introduce a 50% error. Tr. 13, 926-27 (Watts). The Board found in LILCO's f avor, concluding:
If a backup manual method of the sort involving the i nomogram were to involve uncertainties of the order of 50%,
the Board *.vould not deem that excessive.
PID,21 NRC at 781.
Intervenors, raising a question of "conflict of interest," further challenged (in Contention 11) the ability of LERO's command and control personnel to make proper protective action recommendations. LILCO's testimony on Contention 11 was Cordaro et al., ff. Tr.10,196.
Suffolk County's testimony was Purcell et al., ff. Tr.10,727 -
LILCO's witnesses testified in particular that LERO bas formalized the decisionmaking process with detailed procedures. See Cordaro et al., ff. Tr.10,196 at 13-15.E The record indicates that the federal Department of Energy would participate in the decisionmaking (as an advisor and monitor). Its performance has been fully liti-gated. Most of the Intervenors' contentions about DOE were summarily resolved as raising no litigable issues:
Order Ruling on LILCO's Motion for Summary Disposition of Contentions 24.B,33,45, 46 and 49 (Apr. 20,1984).
M/ The Board found for Intervenors on Contention 11. PID, 21 NRC at 686. The Appeal Board reversed, finding, in part, that "the regulations and applicable regulatory guidance effectively rebut the notion that utility officials must be categorically ex-cluded from exercising any command and control responsibilities." See ALAB-847,24 NRC 412,428 (1986).
The DOE's role was considered, however:
PID,21 NRC at 677 (DOE personnel from Brookhaven Nation-al Laboratory are part of a Federal Radiological Monitoring and Assessment Plan (FRMAP); there are 40 DOE personnel to fill the eight positions specified in the LERO Plan).
PID, 21 NRC at 694; Cordaro et al., ff. Tr.10,396, at 79-80.
(DOE-RAP teams will monitor and follow their own proce-dures, as part of a "cooperative venture" with LILCO).
PID, 21 NRC at 693; Cordaro et al., ff. Tr.10,396, at 74-75.
(DOE personnel would be present in the EOC exchanging information with LILCO-LERO personnel).
It has thus been established in the record that LILCO and LERO personnel are capable of making proper protective action recommendations. The only remaining questions with respect to Contention 6 are: (1) how familiar are State and County offi-cials with the LERO Plan? and (2) how much delay can be expected in making decisions and recommendations on protective actions, given the "best efforts" participation by the State and County? See CLI-86-13,24 NRC at 31.
As for the familiarity question, the Protective Action Guidelines (PAGs) in the LERO Plan are the same U.S. EPA PAGs which are contained in the New York State Plan. See New York State Plan, Part II, 5 I, Procedure H, Attachment 3. Since the criteria are the same, State personnel would be able to participate meaningfully in the development of protective action recommendations. Since there are other nuclear plants in New York, the State obviously has personnel who are qualified to make pro-tective action decisions based on dose projections and other data. See Admitted Facts 35 and 36. As previously noted, LILCO added the selective sheltering and selective evacuation options to the LERO Plan so that it would conform to the New York State Plan in those respects as well. See Cordaro et al., ff. Tr. 8760, at 10-11,34.N 18/ The Commissioner of the Suffolk County Department of Health Services, who has been a witness on several occasions in the Shoreham proceeding, is also familiar with the portions of the LERO Plan which concern protective action recommendations.
See, e&, Harris (Role Conflict), ff. Tr.1213, at 3; Harris and Mayer, ff. Tr. 9574, at 3.
As for the potential delay which might arise out of the need to include State and County officials in the decision-making process, what must be taken into account is that, under the LERO Plan, protective action recommendations will be determined based on input from several sources, including LILCO's onsite experts, the LERO Radia-tion Health Coordinator and Evacuation Coordinator, DOE's RAP teams (from Brookhaven National Laboratory), NRC officials at Shoreham, and FEMA representa-tives. See LERO Plan at 3.6-4. Some delay is probably inevitable in any circumstance where specific protective actions must be determined using multiple sources of infor-mation. The pertinent question is: how much additional delay would occur due to the participation of State and County officials and would such additional delay somehow limit or lessen the range of protective action options?
The answer, given that the cognizant government officials would respond using their "best efforts," is that any additional delay would be negligible and that no pro-tective actions would be foreclosed. In the case of a gradually escalating Shoreham emergency, State and County officials would certainly be able to participate in the for-mulation of protective action recommendations. For instance, it is unlikely that State officials would be hampered by their own unwillingness to plan in advance specifically for a Shoreham emergency. As has been shown, the New York State Plan and the LERO Plan use the same guidelines for making protective actions; State officials would there-fore be able to apply to Shoreham the experience and expertise which they have devel-oped through their training for emergencies at other nuclear power plants in New York.
County officials, though perhaps somewhat less prepared than their State counter-l parts,El would be able to rely on the advice and assistance of the NRC and DOE l
M/ Of course, New York State has provisions for assuming command and control of the emergency response if the local government is unable to do so. See Admitted Fact l 38.
l
[
representatives, in addition to LERO, LILCO, and State experts.E Even in the event of a fast-breaking emergency requiring an immediate decision on protective actions, there is little or no potential for additional delay. The "best ef-forts" governmental response in such a circumstance would be to follow the recommen-dation of LILCO's onsite experts. The onsite recommendation is based on plant condi-tions and meterological data, which at first only the plant operator is in a position to assess. Further, the onsite recommendation is based on Emergency Action Levels (EALs) which, as previously noted, are in the onsite plan and which are approved by the NRC. See, e_&, Tr. 2004-05 (Weismantle). The responsibility of the nuclear f acility op-erator to make an initial recommendation is expressly recognized in NUREG-0654, which states:
An additional emergency activity for which facility licensees have primary responsibility is accident assessment. This in-cludes prompt action to evaluate any potential risk to the public health and safety, both onsite and offsite, and timely recommendations to State and local governments concerning protective measures.
NUREG-0654 S I.H (emphasis added). As a consequence, it is extremely unlikely that there would be any appreciable delay in making a protective action recommendation, even in the unlikely event of a rapidly-escalating accident. Under a "best efforts" re-sponse, government officials would not deliberate unnecessarily over what was the 2_0/ During a gradually escalating accident, discussions among LERO personnel and government officials about protective action recommendations are likely to take place face-to-face, at the LERO EOC. LERO's ability to coordinate emergency response ac-tivities with (simulated) State and County officials at the LERO EOC was successfully demonstrated (EOC Objective 9) during the February 13, 1986 FEMA graded exercise.
See FEMA Post-Exercise Assessment (FEM A Ex.1 in the -05 exercise proceeding), at 31-32 (April 17,1986). Working space, desks, and telephones would be provided to govern-ment officials, as noted in OPIP 3.1.1 Attachment 10. In addition, the Radiological Emergency Communications System (RECS) links together the Shoreham Control Room, the LERO EOC, Suffolk County Police Department Headquarters in Yaphank, and the Suffolk County EOC (at the Suf folk County Department of Fire, Rescue, and Emergency Services in Yaphank). See Admitted Facts 8 and 10.
proper course of action but would instead defer in the first instance to the onsite rec-ommendation.
Summary of Record on Contention 6 The parts of the record that LILCO designates as establishing the adequacy of the LERO Plan with respect to making protective action recommendations are the fol-lowing:
Cordaro et al., ff. Tr. 8760 Cordaro et al., ff. Tr.10,396 Cordaro et al., ff. Tr.13,909 Tr. 8761-894 (Cordaro et al.)
Tr. 2004-05 (Weismantle)
PID,21 NRC at 677,693-94,770-81 Order Ruling on LILCO's Motion for Summary Disposition of Contentions 24.B 33, 45,46 and 49 (Apr. 20,1984)
Admitted Facts 8, 10-13, 34-39, 44-52 Plan and Procedures Plan Section 3.6 OPIP 3.6.1 OPIP 3.1.1 Attachment 10
- 7. Ingestion Pathway Contention The rewritten Contention 7 on "ingestion pathway" reads as follows:
- 7. Whether LILCO's emergency plan and the best efforts response of the State and County governments will sat-isfy regulatory requirements concerning the making of decisions and official recommendations to the public concerning protective actions for the ingestion expc-sure pathway.
Legal Standards The relevant guideline is NUREG-0654, Supp.1, Criterion J.11:
- 11. The offsite response organization shall specify the protective measures to be used for the ingestion path-way, including the methods for protecting the public from consumption of contaminated foodstuffs. This shall include criteria for deciding whether dairy ni-mais shall be put on stored feed. The offsite plan
shall identify procedures for detecting contamination, for estimating the dose commitment consequences of uncontrolled ingestion, and for imposing protection procedures such as impoundment, decontamination, processing, decay, product diversion, and preserva-tion. Maps for recording survey and monitoring data, key land use data .g., f arming), dairies, food pro-cessing plants, w heds, water supply intake and treatment plants reservoirs shall be maintained.
Provisions for maps showing detailed crop informa-tion may be by [ sic) including reference to their availability and location and a plan for their use. The maps shall start at the f acility and include all of the 50-mile ingestion pathway EPZ. Up-to-date lists of the name and location of all facilities which regularly process milk products and other large amounts of food or agricultural products originating in the ingestion pathway Emergency Planning Zone, but located else-where, shall be maintained.
LERO Plan The LERO Plan at 3.6-7a states that the controls in the ingestion pathway proce-dure "are designed to keep radioactive material out of the human food chain and from being consumed by people both in and out of the ingestion exposure pathway EPZ."
The federal government will assist LERO in this process:
In accordance with the Federal Radiological Emergency Re-sponse Plan (FRERP), 49 Fed. Reg. 35896 (1984), the federal government will assist LERO in developing and implementing protective actions with respect to impoundment, decontami-
! nation, processing, decay, product diversion, and preserva-tion.
In particular, the United State 6 Department of Agriculture LERO Plan at 3.6-7a.
(USDA) and the Federal Drug Administration (FDA) could be called upon to provide as-i sistance. Ld. at 3.6-8. l According to the plan, various maps are kept at the EOC which contain the nec-essary information needed to implement the LERO ingestion pathway procedure and on I
which the data being collected by the different LILCO and federal monitoring teams are recorded. For example, ingestion pathway food producing and processing facilities are indicated on four large 50-mile EPZ maps according to food type. Ld. ,t 3.6.-8a.
i
Also, LERO has s(veral USGS topographic maps of New York State that are used to record surveying and monitoring data. Id. at 3.6-8a.
LERO's procedure for the ingestion pathway exposure EPZ is OPIP 3.6.6, Inges-tion Pathway Protective Actions. This procedure provides for sample collection and.
analysis, dose hssessment, protective action implementation, and communication with food growers and food chain establishments. The procedure also contains lists of the dairy, duck, beef, fruit, and other farms, food processors, and milk dealers in New York State in the 50-mile EPZ for Shoreham. OPIP 3.5.2, Assessment and Dose Projection (airborne and waterborne), would also be used during an ingestion pathway response to a Shoreham emergency. !
OPIP 3.1.1, Attachment 10, is the procedure that sets out the necessary interface between LERO and the governments for ingestion pathway activities. It re- !
quires that the Director of Local Response "coordinate emergency response activities with the Suffolk County Executive or his designated representative" and that he obtain the permission of the County Executive "before making recommendations to the public concerning ingestion exposure pathway . . . ." OPIP 3.1.1, Att.10 S 3.J.
Record 4
Contention 81 alleged that the LERO Plan had insufficient procedures to imple-ment the protective actions in OPIP 3.6.6 and that it did not contain adequate plans for i the 50-mile ingestion exposure pathway. LILCO's written and oral testimony on inges-1
- tion pathway was i
Cordaro et al., f f. Tr.13,563, at 1-39, A tt.1-1 Tr.13,564-750.
FEMA's written and oral testimony on ingestion pathway was Baldwin et al., ff. Tr.12,174 at 86-90 .
Tr.14,244 67.
The Intervenors provided no testimony on the ingestion pathway issue, j
i
.~ - . -
t The Board resolved the ingestion exposure pathway issue (Contention 81) in LILCO's favor. P!D,21 NRC at 875-78. The Board found that there was "no remaining controversy over whether the Plan, if implemented, makes adequate provision for pro-
' tection of public health in the ingestion pathway EPZ." M.at875. Specifically, the Board said:
The LILCO Plan contains protective actions to be chosen on ,
the basis of monitoring, sampling, and analysis, which if im- ;
piemented would be effective in preventing the public from eating contaminated foodstuffs.
< Id. at 876. The Board also found that LILCO's plan to compensate farmers and other foodchain establishments for loss of food was an effective means of controlling the dis-tribution of contaminated foodstuffs. Relying upon FEMA's testimony, the Board added:
According to FEMA, farmers will have a difficult time of dis- i posing of food harvested at the time of an emergency because the situation will be one in which buyer resistence prevents the sale of fresh food products even if a farmer or processor were inclined to ignore LILCO's advice and such sales. That i
fact, combined with LILCO's offer to purchase food, provides !
' a strong incentive to sell contaminated foods to LILCO, thereby preventing their entry into commerce. Tr. 14,256-58 (Keller).
, Ld. at 877. The Board concluded that it was "clear from the record that LILCO has a i
plan for management, monitoring, issuing of warnings, and means of implementation j through notification of producers and through purchase of possibly contaminated food in the ingestion pathway EPZ." [d. The Board also found that LILCO's lack of "legal au- 1 i
i thority" to impose the terms of its plan on farmers and food processors was not a fatal !
flaw since it was reasonable that they would be eager to sell to LILCO.
I In addition, the record shows that much of the New York State Radiological ,
Emergency Preparedness Plan's procedures for ingestion pathway are similar to L.?RO's.
For example, New York State uses like procedures to prevent the contamination of milk. Cordaro etJ., ff. Tr.13,563, at 11. New York State relieu on the same FDA pro- ;
I tective action guidelines that LERO uses to analyze the results of milk samples. Ld. at i L I
- 12. Also, New York State recommends that the public wash fruit and vegetables to pro-tect against contamination, the same as LERO does. W. at 21.
The record also shows that much of the information LERO relles upon in making ,
protective action decisions is already within the State's control. For example, LERO maintains a comprehensive list of the names, addresses, and telephone numbers of com-mercial dairy farmers in New York State within the Shoreham 50-mile SPZ. This list is based upon information compiled on a semiannual basis by the New York State Depart-ment of Agriculture and Markets. M.at10,13. LERO also maintains a list of the names, addresses, and telephone numbers of all types of f armstands for those porticns of the State within the Shoreham 50-mile EPZ. This information is based in part on a pubilcation published by the State Department of Agriculture and Markets. Ld. at 23.
Furthermore, it is clear from the record that LERO's procedure contains more infortration about the ingestion pathway than tne State's plan and procedures have for other sites. For example, the New York State Plan does not have farmstand informa-tion or procedures for notifying those f armstands. Ld. at 25.
The above information from the record shows that in many ways the State al-ready has the information it needs to participate in a Shoreham emergency response
! and that it could easily participate in making protective action decisions because of the similarities between its and LERO's procedures.
4 Another significant aspect of an ingestion pathway response is federal participa-tion. Substantial federal resources are available to assess what actions should be taken l and to implement those actions. As the record indicates, DOE could provide dose as-i i
sessment and environmental survey personnel from the Brookhaven National Labora-f tory and other locations to monitor the ingestion pathway exposure. M. at 35. Other federal resources probably would be committed to survey ar- 'aonitor the ingestion i
i pathway exposure pathway as was done during the Three Mile island accident in 1979.
l l
Ld. at 38-39. Thus, additional help would also be available from NRC, EPA, FDA, and other federal agencies. Ld. at 39. See also Tr.14,252-53 (FEMA). These federal re- ,
sources are available to respond to any radiological emergency. As a matter of fact, j New York State is f amiliar with these resources and relles upon them in its State Plan:
Technical Federal support is an integral part of New York State's ingestion pathway response. In the early hours or (sic) a radiological emergency, support will be provided through the U.S. Department of Energy's Radiological Assis-tance Plan (RAP). Technical expertice with sophisticated monitoring, sampling and laboratory analysis capability will be provided from the Brookhaven Area Office with USDOE and Brookhaven National Laboratory staff. Advance RAP teams are also availble (sic) from the Knolls Atomic Powr2
- Laboratory, West Valley Demonstration Project, Environ-mental Measurements Laboratory and the Pittsburgh Naval Laboratory. USDOE will provide sophisticated aerial moni-toring capability and plume modeling using ARAC. USDOE resources f.om Region 1 will be supplemented as required from other DOE f acilities including the National Laboratories.
If the emergency conditions warrant, the Federal Radiological Monitoring and Assessment Plan (FRMAP) will be imple-mented to obtain Federal interagency technical support.
February 10,1988 Admitted Fact 40, Affidavit of Papile, Baranski, and Czech (February 10,1987) ("REPG Affidavit") (accompanying Intervenors' February 10, 1988 answer to LILCO's Motions for Summary Disposition). It is obvious from the record that the State relies upon the very same federal resources for monitoring and surveillance as LERO does. Thus, the State has familiarity with how I.ERO would conduct a major part of a Shoreham ingestion pathway response.
The record also shows that during an ingestion pathway response at the other nu-clear power plant sites in the State, the State Disaster Preparedness Commission would:
activate appropriate State agencies' ikid staff; collect, transport and analyze ingestion pJthway sam-ples; assess and evaluate the potential impact of ingestion
! pathway contamination; i
j i
- alert local governments of the emergency and tqe po-tential for adverse public health impact.
February 10, 1988 Admitted Fact 45, REPG Affidavit at 26-27, citing the State Plan at K-1. Apparently the State is prepared to perform these functions for the areas of the State that are covered by the ingestion pathways of other nuclear power plants. In fact, FE51A testified that plans for a 50 mile EPZ are normally implemented by state government, including New York State. Tr.14,250-51 (FE51A). Thus, it follows that the State is prepared to do the same within the 50-mile EPZ for Shoreham since "al-most all of the Shoreham 50-mile ingestion pathway EPZ is within the ingestion path-ways of two other nuclear power plants (Indian Point and 51111 stone) that the State pro-cedure does address." LILCO's 5fotion for Summary Disposition of Contentions 7 and 8 (Ingestion Pathway and Recovery and Reentry)(December 18,1987) at 18 n.12. See also February 10, 1988 Admitted Fact 37, REPG Affidavit at 25.
The racord also shows that the State is responsible for command and control dur-ing any ingestion pathway refoonse for all nuclear power plant other than Shoreham having a 50-mile EPZ covering v. tions of the State. The State Plan at K-5 says:
In the event of a % power plant incident, Command and Control Operations u managed from the State EOC in Albany. From this location, the Chairman of the DPC as the Governor's designee and other State of ficials direct the emer-gency management response and recovery operations. The Command Room is augmented by State and District EOC op-erations, radiological assessment and evaluation, communica-tions and public information. These components provide the necessary information to Command Room personnel to facill-tate the State's decision making.
February 10,1988 Admitted Fact 47. REPG Affidavit at 27. State agencies that partici-pate in assessing the impact of an ingestion pathway incident include the State Depart-ments of Health, Agriculature and Starkets, Environmental Conservation, State Police, and Transportation, the State Emergency 51anagement Office (SE310), and the Ra-diological Emergency Preparedness Group (REPG). February 10, 1988 Admitted Fact
46, REPG Affidavit at 27. Clearly, the State knows how to make an ingestion pathway response and has the resources readily available to do so.
Summary of Record on Contention 7 The parts of the record that, in combination with the "best efforts" rule, re-solves Contention 7 on ingestion exposure pathway are the following:
Cordaro et al., ff. Tr.13,564, at 1-39 Att.1-7 Tr.13,564-750 Baldwin et al., ff. Tr.12,174, at 86-90 Tr.14,244-67 PID,21 NRC at 875-78 February 10, 1988 Admitted Facts 37, 40, 45, 46, 47 (REPG Affidavit)
Plan and Procedures (Rev. 9)
Plan Section 3.6-1 to -3, 3.6-7a to -8a Fig. 3.6.1 Table 3.6.4 OPIP 3.1.1 Attachment 10 OPIP 3.6.6
- 8. Recovery and Reentry j Contention
- The rewritten Contention 8 on "recovery and reentry" reads as follows:
- 8. Whether LILCO's emergency plan and the best efforts response of the State and County governments will sat-isfy regulatory requirements concerning the making of decisions and official recommendations to the public concerning recovery and reentry.
l Legal Standard The relevant guideline is NUREG-0654, Supp.1, Criterion M.1, M.3-4:
The offsite response organization, as appropriate, shall A
1.
l develop general plans and procedures for reentry and recovery and describe the means by which decisions to j relax protec'.ive measures (e.g., allow reentry into an evacuated area) are reached. This process should con-1 sider both existing and potential conditions, a
n
e
- 3. The offsite plan shall specify means for informing member < the offsite response organization that a re-covery operation is to be initiated, and of any changes in the organizational structure that may occur.
- 4. The offsite plan shall establish a method for periodi-cally estimating total population exposure.
LERO Plan According to the LERO Plan at 3.10-1, the purpose of LILCO's offsite recovery and reentry operations is "the restoration of tha area to its pre-emergency conditions following a radiological emergency at the Shoreham Nuclear Power Station." The LERO Recovery Action Committee would be formed and would make "the necessary recommendations to State and County officials" and would "assist State and County of-ficials to plan and implement actions for the restoration of the affected areas to their pre-emergency conditions." Ld. "Long Term Operations," according to the LERO Plan at 3.11-1, "are comprised of the establishment of Federal assistance, a radiation moni-toring program and a medical follow-up af ter protective actions are relaxed." Any fed-eral assistance that would be "provided would be coordinated by the Federal Emergency Management Agency in accordance with the Federal Radiological Emergency Response Plan." [d.
LILCO's procedure for recovery and reentry is OPIP 3.10.1, Recovery / Reentry.
OPIP 3.10.1 S 5.1 provides that a Recovery Action Committee would be formed "to gather information to assist decision making regarding recovery /re-entry and to imple-ment re-entry upon authorization by the Director of Local Response." The Recovery Action Committee woulo be comprised of various LERO members and federal, state, and county representatives. OPIP 3.10.1 S 5.1. OPIP 3.6.1, Plume Exposure Pathway Protective Action Recommendations, also would be used.
. 9 OPIP 3.1.1, Attachment 10, the governmental interface procedure, requires that the Director of Local Response "coordinate emergency response activities with the Suffolk County Executive or his designated representative." OPIP 3.1.1, Att.10 S 3.J.
Specifically, he would obtain the permission of the County Executive "before making recommendations to the public concerning . . . Implementing recovery and reentry ac-tivities . . . ." Id Record Contention 85 alleged that the LERO Plan contained no procedures to provide for or to implement recovery and reentry. Contention 88 alleged that the LERO Plan lacked dose criteria to be used to decide if it was safe for the public to reenter evacu-ated areas and that the Plan's methods of estimating dose were inaccurate. LILCO's written and oral testimony on recovery and reentry was Cordaro et al., ff. Tr.15,282, at 1-12, Att.1 (Contention 85)
Cordaro et al. (Supp.), ff. Tr.15,282, at 1-4, Att.1 (Cor, ten-tion 85)
Cordaro et al. (Revised), f f. Tr.15,284, at 1-11, Att. 2-4 (Con-tention 88)
Cordaro et al. (Updated), ff. Tr.15,284, at 1-2 (Contention 88)
Tr.15,285-382 FEMA also presented written and oral testimony on the adequacy of LERO's recovery and reentry procedures. That testimony was Baldwin et al., ff. Tr.12,174, at 91-92 (Contention 85 and 88)
Tr.14,328-339 Suffolk County presented oral and written testimony on recovery and reentry at Minor, ff. Tr.15 334, at 1-7 (Contention 85 and 88)
Tr.15,385-89 The Board resolved the "recovery and reentry" issues (Contentions 85 and 88) in I
LILCO's favor. PID, 21 NRC at 878-82. In finding that Contention 85 was without merit the Board said:
I l
l
A plan to form an expert committee at the time of an acci-dent to make decisions according to predetermined guide-lines constitutes a reasonable plan for recovery and reentry.
It is not necessary to preplan at this state for contingencies that a committee can resolve at the time of an accident when it has the necessary information for decisionmaking.
Ld. at 880. The Board added that none of the problems posed by Suffolk County were "novel or technically obscure" and that their management depended on "situation-specific information." To that end the Board said that there was "no advantage to pub-lic health and safety to solve them now in the abstract rather than at the time of the emergency when the specific f acts of the situation are known." Ld.
In deciding that Contention 88 was without merit, the Board concluded that LERO's criteria for recovery and reentry and its plans for estimating population doses also were adequate. Ld. at 882.
The record shows that OPIP 3.10.1 has "detailed procedures for initiating recov-ery operations and facilitating reentry of the public into previously evacuated areas."
Cordaro e_tf., ff. Tr.15,282, at 6 (Cont. 85). Recovery and reentry activities in OPIP 3.10.1 include environmental surveillance and ingestion pathway monitoring which is coordinated by LERO's Radiation Health Coordinator. Ld.at7-8. LERO's procedure also contains specific "reentry procedures for three general classes of emergency situs tions, depending on the existence and amount of radioactive surface contamination."
Ld. at 8. The three emergency situations are (1) a radiological emergency that does in-volves a radiological release, (2) an emergency that involved a release with no offsite surface contamination or with a level of contamination acceptable under OPIP 3.10.1, and (3) an emergency that results in unacceptably high levels of surf ace contamination.
Id. at 8-9. In addition, OPIP 3.10.1 provides a controlled method for temporary reentry into an evacuated area "to attend to matters of some urgency, such as firefighting or livestock feeding." Ld. at 10.
i 1
The record also demonstrates that LERO's reentry procedure, OPIP 3.10.1, contains the appropriate radiological criteria for deciding whether it is safe for the public to reetiter evacuated areas. Cordaro et al. (Revised), ff. Tr.15,284, at 6-8 (Cont.
88). LERO uses 500 millirem or less as the threshold contamination level for reentry which is the same criteria used by New York State. Ld. at 7-8.
LERO also has a detailed procedure, OPIP 3.10.2, which it uses to calculate total population dose to assess "the potential long-term health consequences, if any, of the radiological release." Cordaro et al. (Supp.), ff. Tr.15.282, at 3-4 (Cont. 85).
The State Plan also calls for the establishment of a recovery committee.
Cordaro et al., ff. Tr.15,282, at 11-12 (Cont. 85). The responsibilities of the State Re-covery Committee are similar to the responsibilities of the LERO Recovery Action Committee. Those responsibilities include:
[D]irecting State resources and recovery activities and for assisting in the total cooperative effort involving any or all of the other organizations havir.g recognized roles in recovery. ,
During recovery operations the Committee is responsible for developing practical time parameters and activities consis-tent with this plan, and insures that there are adequate com-munications systems and processes for all State activities.
The Committee reports to the DPC and keeps it apprised of all matters relating to the recovery effort.
. February 10, 1988 Admitted Fact 13, REPG Affidavit at 20, citing the State Plan at IV-1. According to the Record, the State Commissioner of Health has lead responsibili-ty for conducting radiation monitoring and medical follow-up for the general public:
A rauiation monitoring program for contaminated areas will be established by the State Commissioner of Health. This monitoring program may be long term depending upon the type, levels, and extent of the contamination. The moni-toring will also take into account the nature of the contami-nation as well as the area affected. Future activities af-fecting release of radiation (venting, etc.) will also require monitoring. Other State agencies will cooperate and assist the Department of Health in monitoring for long term ef-fects. Monitoring Programs initiated during the response phase will continue during recovery until acceptable levels are reached.
Medical follow-up to monitor the effects of radiation on the public and emergency workers af ter the incident may be es-tablished, if required. Currently, the State Departmnt of Health conducts an ongoing study of selected health statistics for counties with and without nuclear facilities as part of its epidemiological program. This program will be enhanced in the event of a radiological emergency.
February 10, 1988 Admitted Fact 31, REPG Affidavit at 24. These monitoring programs are also similar to those provided in LERO's recovery and reentry procedure.
Summary of the Record on Contention 8 The parts of the record that, in combination with the "best efforts" rule, re-solves Contention 8 on recovery and reentry are the following:
Cordaro et al., ff. Tr.15.282, at 1-12, Att.1 (Contention 85)
Cordaro et al. (Supp.), ff. Tr.15,282, at 1-4, Att.1 (Conten-tion 85)
Cordaro et al. (Revised), ff. Tr.15,284, at 1-11, Att. 2-4 (Con-tention 88)
Cordaro et al. (Updated), ff. Tr.15,284, at 1-2 (Contention 88)
Tr.15,285-382
!!D,21 NRC at 878-82 i
February 10,1988 Admitted Facts 13,31(REPG Affidavit)
Plan and Procedures (Rev. 9)
Plan Sections 3.10-1 to -2,3.11-1 to -2
- OPIP 3.1.1, Attachment 10 OPIP 3.10.1
- 10. Access Control Contention l
The rewritten Contention 10 on "access control" reads as follows:
- 10. Whether LILCO's emergency plan and the best efforts ,
response of the State and County governments will sat-isfy regulatory requirements concerning establishing and maintaining perimeter / access control to evacuated areas.
The issue is the control of access to the EPZ "during the time when people are supposed l to stay out." Memorandum and Order at 39 (Sept.17,1987).
l l
8 6 Legal Standards The relevant guideline is NUREG-0654, Supp.1, Criterion J.10.j:
' 10. The offsite response organization's plans to implement protective measures for the plume exposure pathway shallinclude:
- j. Control of access to evacuated areas and orga-nization responsibilities for st.ch control; j Also, NUREG-0654, Supp.1, Criterion A.2.a provides as follows:
2.a. The offsite response organization shall specify the func-tions and responsibilities for major elements and key in-dividuals by title, of emergency response . . . . This de-scription (of these functions) shall specify those functions which require State and local authorization before implementing, such as:
- LERO Plan As Attachment Il to the January 22, 1988 cover letter to Revision 9 of the Plan indicates, the following sections of Rev. 9 are affected by A.2.a
NUREG-0654 Supp.1 Plan and Procedures A.2.a Plan Sec. 1.4, 2.1, 2.2 Fig. 2.1.2 OPIP 3.1.1 Att.1,10 f In particular, Rev. 9 at 1.4-2a provides for the eventuality of a Suffolk County Police role in providing access control:
Suffolk County Police will support an evacuation by manr.ing Traffic Control Posts in coordination with LERO Traffic Guides and also provide access control at the EPZ perimeter.
Plan (Rev. 9) at 1.4-2a. The Plan continues:
LILCO expects that Suffolk County personnel will continue to perform their normal functions as follows in accordance with j referenced sections of THE SUFFOLK COUNTY CHARTER:
i -
Police Actions - Article XII Section 1208(c) (of the *
> Suffolk County Charter) It shall be the duty of the police department to preserve the public peace, prevent crime, detect and arrest offenders, protect 4 the rights of persons and property and enforce all laws and ordinances applicable to the county.
, Ld. at 1.4-2b.
Record The Board declined to admit a contention alleging that "(t]he LILCO Plan ap-pears to rely upon local law enforcement agencies to provide security in evacuated areas" and that since "LILCO has no agreements with police departments to provide such security," there can be no assurance that the LERO Plan er the protective actions ;
contemplated in the plan can or will be implemented. Revised Emergency Planning
- Contentions at 67-68 (July 26,1983). The Board likewise rejected a contention that .
LILCO will be "unable to provide adequate security in evacuated areas . . , ," Ld. at 113-i
- 14. Special Prehearing Conference Order (Ruling on Contentions and Establishing Schedule for Discovery, Motions, Briefs, Conference of Counsel, and Hearing), slip op, at 15,20 (Aug.19,1983).
~
Conter. tion 23.H alleged that the LERO Plan failed to provide adequate EPZ per-imeter control. LILCO's written testimony on perimeter control was Cordaro et al., ff. Tr.1470, at 124-28 (Contention 23.H)
Cordaro et al., ff. Tr.1470, at 129 (Contention 65.C.2).
Cordaro et al. (Contentions 23.C., D., and H.), ff. Tr. 2337, at 19-23 Cords"o enl. (Contention 65), ff. Tr. 2337, at 62-63 Cordaro et al. (Joint Attachments), ff. Tr. 2337, Att.16 In particular: ,
LERO plans to assign personnel at all major entrances to the '
' cations. In addition, each such guide will be given written di-rections ta deploy traffic cones in a manner that willindicate
' to the public that entry into the EPZ at this point is discour-aged.
3 Cordaro et al. (23.C., D., and H.), ff. Tr. 2337, at 21.
The Board resolved the "EPZ Perimeter Access Control" issue (Contention 23.H) in LILCO's favor. P!D,21 NRC at 804-05. The Board found LILCO's plan reasonable:
- The Board finds the LILCO plans for EPZ perimeter control reasonable. We cannot accept that citizens are so contrary in behavior that they will first evacuate a safe place ^
against public instruction and then clamor in large numbers to enter an unsafe place again in conflict with public informa-tion. t PID, 21 NRC at 805. Also, the issue of the "permeability" of the EPZ boundary was raised under Contention 22.D. The Board found that permeability is not a significant issue because "it is unlikely that a substantial number of persons would voluntarily enter i
the EPZ during a radiological emergency." PID,21 NRC at 703.
The Intervenors now argue that long-term access control (af ter people have al- !
ready evacuated) is the issue raised by Contention 10. They claim this is entirely dif-ferent from the already-litigated issue of access control during an evacuation. ;
It is hard to see why. If, as the Board has found, LILCO's plans for perimeter ,
control during an evacuation are reasonable, there is no apparent reason why the same l plans cannot be continued in time (or modified as necessary) and the individual Traffic Guides relieved for later shif ts.W Access control under the LERO Plan is done by Traffic Guides in coordination with the police. There are 165 Traffic Guides deployed at 130 posts if the entire EPZ is evacuated (OPIP 3.(.3, Att. 4), and I.ERO is staffed at 150% of need. The number of h such posts around the perimeter of the evacuated area (even if it is the entire EPZ) is necessarily fewer than 130. The Suffolk County Police could certainly find the manpower in tha af termath of an emergency to man posts around the perimeter of the 21/ The Commission identified an unresolved question about how much delay can be expected in achieving effective access controls. CLI-86-13,24 NRC at 31 (1986). The ,
t
- answer, based on this record, is "none."
i 1
evacuated area (which for planning purposes is no larger than the EPZ); if they needed help, LERO Traffic Guides or other qualified LERO workers would be available, as would State Police.E The record shows that Suffolk County has a large, well-equipped police force:
Admitted Facts 1,3,4,5,53,59,60 See also Tr. 1222-23 (Dilworth) (nonpolice traffic guides used in nonemergency situations)
Moreover, the County Police have listed intersections they believed would have to be manned to achieve perimeter control:
Roberts et al., ff. Tr. 2260, at 65-68 and Attachment 12 The record also establishes that "(t]here is no basis to assume that the Suffolk County police . . . would refuse to provide reasonable and appropriate protection in the event of any type of emergency":
Special Prehearing Conference Order (Ruling on Contentions and Establishing Schedule for Discovery, Motions, Briefs.
Conference of Counsel, and Hearing), slip op, at 15 (Aug.
19, 1983).
Finally, the record shows that people have considerable incentive to avoid ra-diologically contaminated areas. Although Intervenors now argue that flocks of people would rush into contaminated areas like moths to a flame, throughout this proceeding they have argued that people are so terrifled of radiation that they will have difficulty with simple tasks like driving a car or lif ting their arms (see, e.g., Saegert, ff. Tr. 2259, at 12-13,14,16-19; Tr.18,023-29 (Saegert)). This Intervenor testimony is largely incor-1 rect and has been rejected by the NRC. But it .ls accepted that people fear radiation.
For example:
M/ The New York State Plan provides for State Police to assist with access control:
(b) The Division of State Police assists in notification and providing control with local law enforcement agencies, en-forces emergency highway traffic regulations, and assists in ensuring the security of evacuated areas.
New York State Plan at 111-11.
o . ,
PID,21 NRC at 662-63 NUREG-0396, Appendix I, at 1-1. j It follows that people have a strong incentive to avoid, for example, contaminated 1
food:
- PID,21 NRC at 877 .
i '
In contrast to the Intervenors, LILCO has argued that the key to emergency I
management is to give people good emergency information so that they can accurately assess the risk and make sound decisions. People are almost never forced by the au-thorities to protect themselves:
Cordaro er al., ff. Tr.1470, at 119 (virtually all evacuation is voluntary)
Accordingly, if the public is made aware of where the evacuated areas are (and that is
) the purpose of having a well-defined EPZ and ERPA's and a nc,tification and EBS sys- ,
I tem), it is unlikely that many people will invade the contaminated areas. The mere j i
j possibility that someone may do so, despite the plan, does not violate NRC regulations.
As for making clear where the evacuated areas are, the EPZ boundaries have .
been litigated and, as modified by the Board, approved: 1 PID,21 NRC at 707. [~
CLI-87-12,26 NRC 383 (Nov. 5,1987) f
- Likewise, LILCO's methods for informing the public of the zones has been litigated
- ,
i PID, 21 NRC at 765-66 (various means of giving information j about zone boundaries and evacuation routes) !
! P!D,21 NRC at 768-70 (brochure)
- in short, LILCO's plan for access control to the EPZ has been litigated and found I
j acceptable; it can easily be continued in time given the large pool of resources avall- i l
l '
able in the af termath of an emergency; and the public can be expected to avoid con-
) taminated areas of their own free will once they are informed where those areas are. ;
I
[
1 i
i Summary of Record on Contention 10 The parts of the record that, in combination with the "best efforts" rule, resolve
[
! Contention 10 on access control are the following* !
- The record designated above for Contentions 1-2
- PID,21 NRC at 703,404-05
- Roberts et al., ff. Tr. 2260, at 65-68 and Attachment 12 ,
i Cordaro et al., ff. Tr.1470, at 124-29 Cordaro et al. (Contentions 23.C., D., and H.), ff. Tr. 2337, at 19-23 Cordtro gt a_1. (Contention 65), f f. Tr. 2337, at 62-63 Cordaro et al. (Joint Attachments), ff. Tr. 23-37, Att.16 4
Special Prehearing Conference Order (Ruling on Contentions [
1 and Establishing Schedule for Discovery, Motions, Briefs, ;
! Conference of Counsel, and Hearing), slip op, at 15, 20 -
[
(Aug.19,1983) ,
l Admitted Facts 1,3,4,5,53,59,60 Plan and Procedures
- . Plan Sections 1.4. 2.1, 2.2 1 Figure 2.1.2 i OPIP 3.1.1 Att.1,10 [
! t i
l Conclusion ;
In this "designstion of the record" LILCO har., laid out the essential reasoning of !
! its prima f acie case on Contentions 1-10, including the principat parts of the existing l l
4 record that support it. The gist of that case is as follows: LILCO has provided the State and County a tool: an emergency plan that meets feoeral requirements in all sig-4
! niticant respects save the participation of the State and County. LILCO has also pro- j i vided people and equipment to implement the Plan. LERO could therefore respond to l an emergency even without the State and local governments. But over and above the LERO resources, the response would be enhanced by the additional resources of the l l
J
] State and County. Suffc!k County police know how to direct traffic, and New York j i
State of ficials know how to make protective action decisions in a radiological emergen- ;
f cy. The entire resources of LILCO, LERO, and the federal government will be available ,
J
! i 1 t i !
~ .
2 a
I to advise them. Using their "best effort," it is inconceivable that the State and County would significantly degrade a response to a Shoreham emergency.
With this, LILCO submits that it has met its burden of proof and demonstrated that its plan, with the best efforts of Suffolk County and New York State, complies with NRC requirements.
Respectfully submitted, ,
) .
s f7a%',4 ), f/,14.$ ::,-[
,, James N. Christman
, Mary Jo Leugers David S. Harlow '
Counsel for Long Island Lighting Company Hunton & Williams i 707 East Main Street .
P.O. Box 1535 Richmond, Virginia 23212 DATED: April 1,1988 J
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LILCO, April 1,1988 CCCsfiED U5NEC
'88 APR -4 PS :03 CERTIFICATE OF SERVICE 09 06 N n re le.n <
00CMEliN3 A 'iUtvlCf.
BRANC*i In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S DESIGNATION OF RECORD AND PRIMA FACIE CASE ON THE LEGAL AUTHORITY ISSUES (CONTENTIONS 1-2,4-8, AND 10) were served this date upon the following by by Federal Express as indicated by two as-terisks, or by first-class mail, postage prepaid.
James P. Gleason, Chairman e*- Adjudicatory File 3
Atomic Safety and Licensing Board Atomic Safety and Licensing 513 Gilmoure Drive Board Panel Docket
. Silver Spring, Maryland 20901 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Jerry R. Kline **
Atomic Safety and Licensing Richard G. Bachmann, Esq. **
Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flint North
< East-West Towers, Rm 427 11555 Rockville Pike 4350 East-West Hwy. Rockville, MD 20852 Bethesda, MD 20814 i
Herbert H. Brown, Esq. **
Mr. Frederick J. Shon ** Lawrence Coe Lanpher, Esq.
Atomic Safety and Licensing Karla J. Letsche, Esq.
Board Kirkpatrick & Lockhart U.S. Nuclear Regulatory Commission South Lobby - 9th Floor East-West Towers, Rm. 430 1800 M Street, N.W.
4350 East-West Hwy, Washington, D.C. 20036-5891 Bethesda, MD 20814 Fabian G. Palomino, Esq. **
Secretary of the Commission Richard J. Zahnleuter, Esq.
Attention Docketing and Service Special Counsel to the Governor Section Executive Chamber U.S. Nuclear Regulatory Commission Room 229 1717 H Street, N.W. State Capitol Washington, D.C. 20555 Albany, New York 12224 Atomic Safety and Licensing Alfred L. Nardelli, Esq. l Appeal Board Panel Assistant Attorney General U.S. Nuclear Regulatory Commission 120 Broadway -
f
- Washington, D.C. 20555 Room 3-118 New York, New York 10271 l
- o 2-Spence W. Parry, Esq. ** Ms. Nora Bredes William R. Cumming, Esq. Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York l'.787 Washington, D.C. 20472 Evan A. Davis, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Offica Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 E. Thomas Boyle, Esq.
Stephen B. Latham, Esq. ** Suffolk County Attorney Twomey, I.atham & Shea Building 158 North County Complex 33 West Second Street Veterans Memorial Highway i
P.O. Box 238 Hauppauge, New York 11788 Riverhead, New York 11901 Dr. Monroe Schneider Mr. Philip McIntire North Shore Committee Federal Emergency Management P.O. Box 231 Agency Wading River, NY 11792 26 Federal Plaza New York, New York 10278 i
Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Ccunsel t
Three Rockefeller Plaza Albany, New York 12223
^YM r _
mes N. Christjnan Hitnton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: A oril 1,1988 o
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