ML20151P497

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NRC Staff Response to Intervenors Appeal of 880509 Partial Initial Decision on Suitability of Reception Ctrs.* Appeal Has No Merit & LBP-88-13 Should Be Confirmed.Certificate of Svc Encl
ML20151P497
Person / Time
Site: Shoreham File:Long Island Lighting Company icon.png
Issue date: 08/01/1988
From: Bachmann R
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#388-6880 LBP-88-13, OL-3, NUDOCS 8808100049
Download: ML20151P497 (23)
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'n NFC i-UNITED STATES OF AFERICA NL' CLEAR REGULATORY COWISSION  % AUG -8 P2 :54 -

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In the Matter of

' LONG ISLAND LIGHTING COMPANY Docket No. 50-322-OL-3 (Emergency Planning) i (Shoreham Nuclear Power Station,

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i i hF.C STAFF RESPONSE T0 INTERVENORS' AFFEAL  ;

OF THE MAY 9, 1988 PARTIAL INITIAL CECISION 0F SUITABILITY OF RECEPTI0l; CENTERS 9

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!' Richard G. Bachmann Counsel for NRC Staff

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UNITED STATES OF AMERICA

-EUCLEAR REGULATC1Y COMMISSION PFFORF THE ATOMIC SAFETY AND liCFNSING APPEAL. BOARD In the Matter of )

LONG ISLAND LIGHTING COMPANY Oceket No. 50-322-OL-3 (Shoreham Nuclear Pcwer Station, Unit 1)

NRC STAFF RESPONSE TO INTERVENORS' APPEAL OF THE MAY 9, 1988 PARTIAL INITIAL DECISION CN SUITABILITY OF RECEPTION CENTERS e

, Richard G. Bachmann Counsel for NRC Staff August 1, 1988

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TABLE OF CONTENTS PAGE I. INTRODUCTION . . . , ................... 1 II. STATEMENT OF THE CASE ................... 2 III. ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . 4 IV. ARGLMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. The Licensing Board's Findings are Supported By Substantial Evidence And The Record Does Not Corpel A Different Result ........................ 5 B. The Licensing Board Is Not Required By 10C.F,R.i50.47(a)(2)ToConsider FEMA Findings Before Making a Reasenable Assurance Finding . . . . . . . . . . . . . . . . . . . 10 C. The Licensing Board Sufficiently Articulated Its Decision On The Issue of Locally Urwanted Land Use ....................... 14 i D. The Licensing Board Did Fot Disregard Intervenors' Evidence Concerning Registration Procedures . . . . . . . . . . . . . . . . 15 V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 17 1

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TABLE OF AUTHORITIES PAGE ACVINISTRATIVE DECISIONS Carolina Power & Licht Co. (Shearon Harris Nuclear Fower Plant), ) LAB-552, 24 NRC 532 (1986) . . . . . . . . . . . . 7,9,12 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),

E Ab-813, 22 NRC 59 (1985) ................... 12 Long Island Lighting Co. (Shoreham Nuclear Pcwer Station, UnTt 1), ALAB-788, 20 NRC 1102 (1984) ......... 16 Long Island Lightin Co. (Shoreham Nuclear Power Station, Unit 17,' 13, 27 NRC (May 9, 1988) . . . . . . . . . passim Long Island Lightins Co. (Shoreham Nuclear Power Station, Unft 1), LE P-58-2, 27 NRC PS, (1988) . . . . . . . . . . 10 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-86-36, 24 NRC 561 (1986),

aff'd,ALAB-855,24hRC792(1986) ............... 6,7,8 Long Island Lighting Co. (Shoreham Nuclear Pou r Ttation, Unit 1) LBP-85-31, 22 NRC 410 (1985) .........

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6,8 Long Island Lighting Co. (Shoreham huclear Power Station, Unit 1), L87QS-12, 21 NRC 644 (1985) ......... 10 Niacara Mohawk PowerJCor . (Nine Mile Point Nuclear Station, Unit 7),ALAB-21!i4,1NRC347(1975) .......... 6 Northern Indiana Public Service Co. (Bailly Generating ItalTen~,liTcTeaF17,~%EAB-303,21RC858(1975)......... 6,9 Pacific Gas & Electric Co. (Diablo Canyon Nuclear PTan't, Units 1 and 2), ALAB-781, 20 NRC 819 (1984's ....... 11 Pacific Gas & Electric Co. (Diablo Canyon Nuclear TTant, Units 1 and 2), ALAB-776, 19 NPC 1373 (1984) . . . . . . . 12 Philadelphia Electric Co. (Limerick Generating

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Station, Units I ante ALAB-863, 25 hRC 273 (1987) ...... 12,13 i

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PAGE Philadelphia Electric Co. (Limerick Generating Ttation, Units 1 an'd 2)! LBP-85-14, 21 NRC 1219 (1985). eff'd in p6rt and rev'd in part on other grounds, ALAB-836, 23 hRC 47/9 (1986) .............. 12,13 Public Service Co. of New Hanipshire (Seabrook Station, Units 1 and'2), ALAB-422, 6 NPC 33 (1977) ....... la,15 Public Service Electric & Gas Co. (Salem Nuclear 4,5,7

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Generating Station, Unit 1), ALAB-650,14 NPC 43 (1981) . . . . .

Southern California Edison Co. (San Gnofre Nuclear Generating Station,1611ts 2 and 3), CLI-83-10, 17 NRC 528 (1983) . . . . . . . . . . . . . . . . . . . . . . . . 10 Southern California Edison Co. (San Onofrc Nuclear Generafing Station, Units find 3), ALAB-673, 15 NPC 688 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 16 Toledo Eoison Co. (Davis-Besse Nuclear Station, IIiit ts 1, 2 and 3), ALAB-385, 5 NRC 621 (1977) . . . . . . . . . . 6 REGULATIONS 10 C.F.R. 50.47(a)(2) . . . . . . . . . . . . . . . . . . . . . . 2,10,11 MISCELLANEOUS Shoreham Licensing Board Rulings:

MemorandumandOrder(DismissingofLILC0sMotion of April 17, 1987 for Sumary Disposition 7 and of April 3,1987 to Compel the Production of a Document, as Moot), April 30, 1987 .................... 3 Pemorandum and Order (Ruling on LILCO's Motion to Strike Testimony of Papile, et al.), June 17, 1987 ....... 15

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEF0PJ,THE ATWIC SAFETY AfD LICENS!PG APPEAL,BOAeD In the Matter of )

LONG ISLAND LICHTING COMPANY Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

NRC STAFF RESPONSE TO INTERVENORS' APPEAL ,

0F THE MAY 9, 1988 PARTIAL INITIAL DECISION 1

. ON SUITABILITY _,0F PECEPTION CENTERS I. INTRODUCTION  :

On May 9,1988, the L; censing Board ruled in favor of the Long Island [

Lighting Cenpany (LILCO) on the issue of the adequacy of three reception centers proposed by LILCO for public use in the event of a radiological -

energency at Shoreham. Partial Initial Decision on Suitability of Reception Centers ("PID"), LBP-88-13, 27 NRC __ slip op, at 108. The Board r.ade specific conclusions of law that LILC0's planning basis for 4

ronitoring evacuees, traffic plan, reception center locations, monitoring, f registration and decontamination procedures, staffing plans and provisions

{

for handling evacuees are adequate and satisfy the NRC's regulatory r standards and criteria of 10 C.F.R. I 50.47(b) and NUREG-0654, II.J.17.  !

Id.

On June 20, 1988, Intervenors filed "Suffolk County, State of New York and Town of Scuthampton Prief on Appeal of the Licensing Board's May 9, 1968 Partial Initial Cecision on Suitability of Reception Centers"

("Intervenors' Brief"). Intervenors argue that the Licensing Board's 4

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i holding is in error and trust be reversed. Intervenors' Brief at 3. :n support of their argument they cite fcur "fundarrental errors":

.. 1. The Licensing Eoard fcund L!LCO': planning basis for the monitoring of EPZ evacuees to be "defensible" even though it was derived from sheltering data;.

2. The Licensing Board did not review FEMA findings on the -

suitability of the reception centers or renitoring procedures, which is a violation of 10 C.F.R. 4 50.47(a)(2);

3. The Licensing Board did not articulate its reasons for rejecting Intervenors' position concerning the evacuation of the population surrcunding the reception centers;
4. The Licensing Board struck Intervenors' testimony on registration procedures, which is an explicit element of the conclusions in the PID.

1d As explained in the following sections of this brief, there is no r merit to any of the arguments presented by the Intervenors. The Licensing Board's factual conclusions !tre supported by substantial, reliable and probative eviderce, and the Board did not commit any error warranting reversal. Accordingly, the Appeal Board should deny Intervenors' appeal and affim LBP-86-13.

II. STATEMENT OF THE CASE The cerrplicated procedural history of the overall reception center issue is detaileo in the Licensing Board's PID (slip cp. at 2-5).

. Pursuant to general and specific directions provided by the Ccrmission and

m the Appeal Board, the Licensing Board determined nine specific issues 1/

to be litigated at the hearing:

1. The adecuacy of LtLCO's planning basis--the number of people expected to seek monitoring at LILCO's new reception centers;
2. Whether transportation and traffic problems might develop as a result of the reception centers' locations and their distance from the EPZ;
3. Whether the receptica centers' locations :ah* :reate problems in regard to the evacuation shadow phenomence, t
4. Whether the distance of the reception centsrs from the plume EPZ would increase exposure to radiation causing an additional problem;
5. Whether LILC0's proposed monitoring procedures were adequate;
6. The staffing requirements given the new schene;
7. The adequacy of evacuation routes to the three LILCO reception centers including the effects of treffic congestion on the way to and in the vicinity of the facilities, and LILCO's Revision 8 preposal to employ traffic guides on Nassau County roadways;
8. LILCO's proposal to transport all evacuees travelling on buses to the parking lot next to the Hicksville facility, when that facility itself is also proposed by LILCO to be the local emergency response organization (LERO) relocation center; i
9. Whether the proposal to send evacuees to LILCO parking lots could or would ever be impie- ated in a way to protect the public health and safety.

PID, slip op. at 4-5.

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1/ Intervenors cite two other issues identified by the Appeal Board in ,

ALAB-832, 23 NRC 135, 162, n.105 (1986): whether the use of the LILCO t facilities would affect grouncwater and whether the use of the tacilities reovires authorization under state environmental law.

Intervenors' Brief at 12, n.6. Both issues were withdrawn by  !

Intervenors, and the withdrawal was affirmed by the Licensing Board in its Pemorandum and Order datec April 30, 1987.  !

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" Hearings consenced on June 30, 1987, and the record was closed cn July 30, 1967. Tr. 17403-19249. Testimony was submitted on behalf of LILCO, Intervencrs Su# folk Ccunty and Few York State, FEMA, and the NPC Staff. Id. As noted above, on May 9, 1988, the Licensing Board issued its In reaching its decision, PID ' finding in LILC0's favor on all issues.

the Board grouped the above-stated issues as.follows: planning basis (issue 1); traffic (issues 2 and 7); distance of reception centers from EPZ(issues 3and4); monitoring (issues 5,6,8and9),2/

Kith two minor exceptions, discussed below, Intervenors only challenge the adequacy of evidence on issue 1, the planning basis for moni,toring. / Intervenors also allege that it was error to make a determination on the adequacy of the reception centers in the absence of FEMA findings. See IntervenorsBrief at 29-34.

III. ISSUES PRESENTED Intervenors' appeal raises the following issues:

1. Whether the Board erred in determining the planning basis for monitoring.

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The Board also dealt with a zoning issue referenced by LILC0 and Intervenors in their proposed findings. PID, slip cp. at 5. This issued was neither raised nor briefed on appeal and is thererore waived. Public Service Electric and Gas Co. (Salem Nuclear

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Generating Station, Unit 1), ALAB-650, ld NPC 43, 49-50 (1981).

3/ Intervenors allege that traffic and staffing issues were "tainted" by the alleged erroneous planning basis. Intervenors' Brief at 29.

However, other than providing some quotes from the PID, Intervenors do not brief these issues. Id. at 29, n.22. Nor have they briefed (F00Th0TE CONTINUED ON NEXT PAGE)

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2. Whether the Board erred in-deciding on the adequacy of the

+ reception centers without the benefit of FEMA findirgs.

3. Whether the Board erred in not accepting Intervenors position on evacuation caused by "local urwanted, land use."
4. Whether the Board erred in striking a portion of Intervenors'

. testimony on registration procedures.

IV. ARGUMENT A. The Licensing Board's Findings Are Supported By Substantial Evidence And T_he Record Does Not Compel A Different Result Intervenors' first allegat,an of error is that the Licensing Board credited the evidence of LILC0, FEMA and the Staff while rejecting that of the Intervenors concerning the number or percentage of evacuees who would seek monitoring in the event of an accident at Shoreham. Intervenors' Brief at 20-29. The Licensing Board determined that 20 percent of the x populaticn of the EPZ provided a reasonable basis for planning for the conitoring of evacuees from the EPZ. PID at 25-26.

At the outset, it is important to recognize that the Licensing Board itself first questioned the adequacy of LILC0's planning basis for those evacuees seeking monitoring but not shelterirg. In its Concluding Partial Initial Decision on Emergency Planning, after accepting LILC0's planning basis for the number of evacuees seeking shelter, the Board rejected LILCO's sheltering data as support for the number seeking monitoring (F0OTNOTE CONTINUED FROM PREVIOUS PAGE) any other issues decided by the Board. Thus the issues are waived.

See Salem, supra.

1 alone. LBP-85-31, 22 NRC 410, 417 (1985). The Board fcund that "LILCO's failure to plan for those of the general population who seek only monitoring and processing ccnstitutes a defect in the Plan." Id.

Subsequently, in its Clarifying Decision on Remand, the Board stated that in regard to the planning basis for monitoring, there was "simply no basis to decide it in the record." LBP-86-36, 24 NRC 561,' 571 (1986), aff'd, ALAB-855, 24 NRC 792 (1986). N Thus the Licensing Board, having found no evidence in the record to support a planning basis for monitoring in the earlier phase of the proceedings, received further substantial evidence from all of the parties in order to reach a decision. See PID, slip op, at 7. This runs counter to Intervenors' implication that the Licensing

, Board attempted to justify the use of sheltering data which it had previously rejected. See Intervenors' Brief at 20-22.

Although the Appeal Board has the authority to reject or modify findings of the Licensing Board, it "would not do so lightly," and would do so only if "convinced that the record corrpels a different result."

Niagara Mohawk Pcwer Corporation (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347, 357 (1975). An Appeal Board is not free to disregard the fact that the Licensing Boards are the Commission's primary fact finding tribunals. Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB-303, 2 NPC 858, 867 (1975); see also Toledo Edison Co. (Davis-Besse Nuclear Station, Units 1, 2 and 3),

4/ The Appeal Board also provided the guidance that LILCO could reassert its claim that the sheltering planning basis would encompass the trenitoring planning basis. ALAB-855, 24 NRC at 801.

ALAB-386,5NRC621,629(1977). It is "the Licensing Board's proper role to weigh and censider all the record evidence." Carolina Power and Light Co. (SFearon Ha'rris Nuclear Power Plant), ALAP-RS2, 24 NRC 532, 537 (1986). The record here shows that the Licensing Board correctly considered and weighed the evidence in determining that 20 percent of the population of the EPZ is a reasonable basis on which to plan for the monitoring of evacuees from that zone. Its decision is supported by substantial evidence.

Intervenors argue that the Licensing Board was required to consider an "independent analysis" to determine the number of people who would seek monitoring. Intervenors' Brief at 18-19, citing, LBP-86-36, 24 NRC 561, 570. According to Intervenors, the Board's reliance on a FEFA guidance document setting out the planning basis for the monitoring of evacuees (the Krimm Memorandum, see id. at 14 ) was misplaced since the document computed the percentage of evacuees who would seek monitoring on the basis of the greatest percentage of evacuees who had sought shelter in past, a methodology which had been previously rejected by the Board. Id. at ?l, 23.5/ According to Intervenors, reliance on a FEMA memorandum, where no evidence was introduced to show its reasonableness, was reversible error.

Id. at 28.

!/ Wh!1e not specifically stated, it appears that Intervenors believe that the Board should have given more weight to the surveys performed by their witnesses, since these surveys constituted an "independent analysis." Intervenors' Brief at 15. Since this argument has not been briefed, it is waived. Salem, supra.

Intervenori attempt to give the impression that the Ecard took the g FEMA memorandura at face value, using it to justify relying on sheltering data alone to deternire the monitcring planring basis. Mcwever, the Board did not do so. As wc have discussed, the Licensing Board was the first to question whether the sheltering data were probative of monitoring requirements. LBP-85-31, 22 NRC at 417; LRP-86-36, 24 NRC at 571. The Board admitted considerable testimony which bore on the validity of the basis upon which LILC0 planned for the monitoring of EPZ evacuees. See PID, slip op. at 7-8. It is clear from the Board's decision that it carefully considered the evidence submitted by LILC0 (i_d. at 8-12),

Intervenors (id at 12-22) 6_/ and the Staff (i_d. at 22-24). The "independer.t analysis" referred to by the Beard in its Clarifying Decision on Remand (LBP-86-36, 24 NRC at 570), and cited by Intervenors (Intervenors' Brief at 18-19), was provided by the testimony of the parties to this proceeding.

Only after reviewing all the evidence did the Board conclude that the figure of 20 percent of the EPZ population was a proper basis on which to plan for monitoring. PID, slip op. at 24-26; LILC0 Exh.1 (Crocker, et al), at 10; FEMA Exh. 2 (Baldwin, et al.) at 7; Tr.19221 (Kantor); Staff Exh. 5 (Hulman) at 1; (Kontor) at 7. The Board explained how it viewed the evidence and how it chose "to accept the opinions of those who deal

~6/ Particularly noteworthy is the Board's acknowledgement of Intervenors' argument that the Krimm Memorandum is based on sheltering data. PID, slip op. at 13-14 Also noteworthy is the Board's recognition that the figures for sheltering were adjusted upwards iri accordance with the "best judgrrent of an emergency planning professional." I_d. a t 25.

l 4-l professionally with the business of emergency planning." Id. at 24. The Board gave "great weight" to the policies of FEMA and to the FEMA guidance (FElM Exh. 1). M.6t24-25. Positive evidence in the record supported the fact that planning for monitoring of 20 percent of the EPZ population represented FEMA's naticnal policy. Tr. 18,314, 18,346, 18,365 (Keller);

Tr.18,440 (Husar); Staff Exh. 5 (Hulman) at 1, (Kantor) at 7). It is the upper end of the range of the number of people who have in the past gone tn relocation centers for any reason in past emergencies. Tr. 18,321-25 (Keller). Monitoring of 20 percent of the total EPZ population provides for monitoring of much more than 20 percent of those who might be advised to evacuate or who might be at risk in most emergency situations.

Staff Exh. 5 at 1-9. In accepting the FElM guidance and the reasons in the record supporting that guidance, the Board essentially discounted the views of Intervenors' experts, particularly evidence based upon Dr. Cole's opinion poll testimony which had earlier been rejected in this proceeding.

M.at24;21NRCat655-71,667. This evidence was rejected because the Board determined that public opinion poll evidence of what people say they would do in an emergency when the poll was taken does not demonstrate what they would actually do in an emergency at some undetermined future date.

PID at 24 The Board thus fulfilled its proper role in weighing the evidence. Shearon Harris, suora. The fact that the views of Intervenors'

. experts were not accepted does not demonstrate that the Board's decision was not supported by the evidence. Bailly, supra.

The Licensing Board's findings were supported by substantial evidence, and an examination of the record does not compel a different tesult. E The Licensing Deat d did not err in detear..ining the moritorin5 planning basis. E/ -

B. The Licensing Board Is Not Pequired By 10 C.F.R. 9 50.47(a)(2) To Consider FEMA Findirgs Before Making A_ Reasonable Assurance Finding Intervenors' second allegation of error is that the Licensing Board was precluded by Counission regulation frcm making a reasonable assurance 7/

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The record on this issue contains other evidence, which also lends support to the Board's findings. For example, the Staff performed an N analysis demonstrating that, for the great majority of meteorological conditions, less than 20% of the EPZ population would be affected by the plume (PID, slip op. at 10-11,25); and LILC0 has the ability to monitor up to 30% of the EPZ population using its own resources (LILCO Exh. 1 at 4, 52-55; see PID, slip op. at 26, n.11).

'~8/ Intervenors allege two other errors on this issue: (1) the Board misinterpreted a footnote in Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10,17 NRC 528, 536 n.12 (1983); and (2) the Board dismissed a finding by the "Frye Board" in LBP-88-2, 27 NRC 85, 89, 173-74 n.48. Based upon San Onofre, Intervenors take the position that the Comission intended the monitoring planning basis to encompass 100% of the EPZ population. Intervenors' Brief at 24-25. Such a claim is specious.

Wera it valid, the Appeal Board's directions in ALAB-855 would be meaningless, and there would have been no need to litigate the planning basis. See LILC0's Reply to Intervenors' Proposed Findings on Reception Centers, dated September 21, 1087, at 11. With respect

. to the Frye Board finding, the Licensing Board acknowledged the communications problems uncovered during the 1986 exercise, but assumed proper communication will be required before licensing. PID,

. slip op. at 25. This is not an "unwarranted assumption" (see

! Intervenors' Brief at 27), since even the Frye Board suggested that l the problems could be overcome (see 27 NRC at 89), and is entirely in i

keeping with the principle that the "finding a Board must make on i emergency planning is necessarily a predictive finding." LBP-85-12,

! 21 hRC 644, 653 (1985). Neither of these alleged errors warrant f further attention.

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Nx finding on the adequacy of the reception centers in the absence of FEMA findings. Intervenors' Brief at 30-31. Intervenors (i_d. at 30) base their argu cnt on a part of 10 C.F.P.  ! 50.47(a)(2), which stctcs:

The NRC will base its [ reasonable assurance) finding on a

' review of the [ FEMA.' findings and determinations as to whether State and local emergency plans are adequate and whether there is reasonable assurance that they can be implemented.

Intervenors argue that the plain language of the above-quoted regulation mandates that the Licensing Board must base its reasonable assurance finding on FEMA findings after an emergency planning exercise. E Intervenors' Brief at 31. They point out that the Board acknowledged FEMA had not reviewed or made findings on the latest revision to LILCO's plan, which was the subject of the instant litigation. Ld.at 29-30 n.23; see PID, slip op. at 92-93.

This argument is directly contrary to prior decisions of this Appeal Board. In _ Pacific Gas and Ele _ctric Co. (Diablo Canyon Nuclear Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 828-89 (1984), the Appeal Board stated:

We held that the ;ommission's emergency response regulations did not require final" FEFA findings on the adequacy of offsite emergency response plans, and that interim FEMA findings and t.he testimony of FF.MA witnesses with respect to the adequacy of such plans was all that was needed to comply with the regulations. Further, with respect to the state plan and preparedness, we found that the hearing record fully supported the Licensing Board's conclusion that there was

- reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.

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If, as Intervenors assert, the language of 10 C.F.R. 6 50.47(a)(2) is "unequivocal" (Intervenors' Brief at 31), then Intervenors have failed to cite those portions of the PID where the Board made specific findings that LILC0's planning base and procedures met regulatcry requirements. See, eg . PID, slip op, at 108.

s In Pacific Gas and Electric Co_. (Diablo Canyon Nuclear Plant, Units 1 and 2), ALAB-776, 19 NRC 1373, 1378 (1984), it was held:

"\

[T]he Commission's regulations do not require the staff to obtain from FEMA final findings of the adequacy of state

- offsite response plans before the full power operating license can issue.

In three recent cases, we have rejected the same interpretation of the Comission's regulations now urged upon us by the joint intervenors and the Governor. Those cases are controlling here. In Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 380 (1983), we reviewed the emergency planning regulations and conclud(d that "the Comission expects licensing decisions on en.ergency preparedness to be made on the basis of the best available current information, and not deferred to await FEMA's last word on the matter." Next, in Cincinnati Gas & Electri Co. (Wm. H. Zimer Nuclear Power Station, Unit No. 1), ALAB-727, 17 NRC 760, 775 (1983), we held that 10 C.F.R. 9 50.47(a)(2) "does not require deferment of any hearing on State and local government emergency response plans to await FEMA's issuance of final findings on those plans. Rather, what that Section contemplates is a licensing decision based on the best available current information on emergency preparedress." Finally, we relied upon these two decisions in Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-730, 17 NRC 1057, IC66 (1983), stating that "it is plain from the Comission's regulatory requirements t'at n offsite plans need not be complete, nor finally evaluated by FEMA prior to conclusion of the adjudicatory process."

See al_s_o Phildelphia Electric' Co., (Limerick Generating Station Units 1 and 2), ALAB-863, 25 NRC 273, 281 (1987), Carolina Power and Light Co.

(Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 546 (1986);

Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59,78(1985); Philadelphia Electric C_o. (Limerick Generating Station, Units 1 and 2), LBP-85-14, 21 NRC 1219, 1229-1232 (1985), affimed in part _and reversed in part on other grounds, ALAB-836, 23 NRC 479 (1986).

FEPA particularly testified here that it had concluded that planning for the monitoring of 20 percent of the population of the EPZ was

adequate. FEMA Exh. 2 (Baldwin et al.) at 7; FEMA Exh. 1; Tr. 18,314, 18,346, 18,465 (Keller); Tr. 18,440 (Husar).

In the Lin.erick case, the Licensing Ecord particularly concluded that it ne'ed not await interim findings from FEPA, but may base its conclusions on the testimony of FEMA witnesses, as well as other evidence in the record. LBP 85-14, 21 NRC at IP29. The Appeal Board upon a review of-that decision, although not addressing the issue of the need for interim FEMA findings, affirmed many of the Licensing Board's conclusions on the adequacy of the emergency plan which were predicated on FEMA testimony without any FEMA findings having been issued. See e.g., ALAB-836, 23 NRC at 505, 507, 521. In Limerick, ALAB-863, 25 NRC at 281, the Board held that the Licensing Board may review changes in an emergency plan for adequacy prior to any FEMA approval of the plan as changed.

Intervenors say that the FEFA testimony was not sufficient because ultimate FEMA findings were subiect to review of an exercise of the reception centers. See Intervenor's 8rief at 32-34. However, as each of the cited cases shows, reliance on FEMA findings does not require final FEMA findings, but may be based on FEMA's interim findings provided in testimonial fonn on the matters at issue. Here the matter at issue was whether LILCO's planning base of 30 percent of the EPZ population was sufficient to plan for monitoring. FEMA testified that a planning base of 20 percent would be sufficient. FEMA Exh. 1 The issue of whether the exercise of the LILC0 plan provides reasonable assurance of the suitability of the relocation centers was not here litigated. That issue is being litigated in other parts of this proceeding. The fact that FEPA's determination that the reception centers are adequate is sub,iect to

the caveat that final findings on the suitability of the relocation centers awaits an emergency planning exercise does not prevent this Board from finding that the planning for reception cebters and the provisicr.s for monitoring are adequate.

C. The Licensing Board Sufficiently Articulated Its Decision On The Issue Of Local _ly Unwanted Land Us_e Intervenors' third allegation of error is that the Licensing Board failed to articulate the beris 'or resolving the issue of "locally unwanted lana use", E in that it made no explicit findings as to whether people who live around the reception centers would evacuate in the event of an emergency. Intervenors' Brief at 34-35. Intervenors cite Public Service Co. of New Hamp_s_ hire (Seabrook Station,-Units 1 and 2),

ALAB-422, 6 NRC 33, 41 (1977) in support of their argument. Ld.at35.

Contrary to Intervenors' allegation, the Board stated the basis for its decision in sufficient detail. The Board described in detail the evidence presented by the parties on this relatively minor issue, and srecifically noted where the evident.e conflicted. PID, slip op, at 75-77.

The Board stated:

As to the theory that this "local unwanted land use" will cause people to evacuate the crea around the receptien centers, LILC0's witnesses believe that the evidence is "overwhelming" that people do not flee from places simply because those places involve some sort of radiological activity. LILC0 Exh I at 23 (Lindell, Mileti). They note that experience at TMI, Love Canal and Times Beach showed

- people only leave hazardous areas after the hazard has been defined by an "authoritative scurce." [citationomitted]

-10/ The concept that the centers "will be perceived as presenting a threat to those in the towns and, in the event of a radiological emergency, people will atterrpt to evacuate from the areas surrounding the centers, adding to congestion and further delaying the arrival of evacuees from the EPZ." PID, slip cp. at 75.

PID at 7f. The Board then concluded that "LILCO carried tbc day" on the evacuation issues, including evacuation because of an unwanted land used.

PID at 77. Considering the information provided in the PID, Intervenors'

. claim that the Appeal Board and the parties cannot comprehend the foundation for the Licensing Board's ruling (see Intervenors' Brief at 35) is not credible. See Seabrook. ALAB-422, 6 NRC at 41-4E.

The Licensing Board did not err in deciding that "locally unwanted land use" would not cause an evacuation which would interfere with the use of the relocation centers.

D. The Licensing Board Did Nct Disregard Intervenors' Evidence Concerning Regi,stration Procedures Intervenors' fourth allegation of error is that the Licensing Board improperly struck a portion of Intervenors testimony concerning registration procedures at the reception centers. Intervenors' Brief at 36-38. Intervenors argue that, in the PID at 95-100, the Board treated registration as an issue. M.at37. Therefore, according to Intervenors, their testimony should have been admitted and the failure to do so calls for a remand for further evidentiary hearings. M.at38.

khile it is true that th'e Board issued an order striking the part of Intervenors' testirrony which dealt with registration, EI it is also true that the Board considered the testimony on that issue, including I_nter venors ' . See PID, slip op. at 99, The Intervenors ac'mit the Board

-11/ Memorandum and Order (Ruling on LILC0's Motion to Strike Testimony of Pipile g g .), June 17, 1987.

considered this te +.imony.

. Intervenors Brief at 37. The Board accurately

..amarized the "stricken" testimony. Id. N The Board stated (PID, slip op,at09-100)*

In [Intervenors'] view, registration rames of everyone

, monitored is necessary to protect public health and safety arguing that all other plans in FEMA's Region II require this data. The FEMA testimony, which we consider persuasive on this issue, is to the effect that detailed information on those not contaminated is not needed. It is needed only for those going through the decontamination process. It appears to the Board that LILCO's plan to contact non-contaminated individuals, if necessary, through license plates or public service announcements, would mnre than provide for the unusal event where subsequent communication would be required.

LILC0's planned registratten procedure is adequate in the Board's judgercent.

The Staff agreed with LILCO's motion to strike intervenor's testimony on the matter of record keeping. E However, even if the Board erred in initially striking the testimory, it was harmless error since, as indicated in the above quote, the testirr.ony was ultimately considered.

Where an evidentiary ruling does not effect the outcome of the proceeding or the evidence the Board considered it may not be appealed. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-673, 15 NRC 688, 697 (1982). In crder for an evidentiary ruling to be the subject of an appeal, the party must show that the ruling had a substantial effect on the outcome of the proceeding, i.e. that it was prejudicial error. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1151 (1984).

---12/

The testfrony complainea of consists of only 15 lines. See New York Exh. 1 (Papile et a_1.) at 22-23.

-~13/ NRC Staff Respose to LILC0's Motion to Strike Testicony of Papile et.al., May 4, 1987.

s

- \ '

The fact that the Licensing Board initially ordered Intervenors' testimony stricken was not prejudicial error, and reversal and remand of 1,

the registration issue is riet worronted. j V. CONCLUSION For the reasons set out above, the appeal has no merit and LBP-88-13 should be affirmed.

Respectfully submitted, g y.

]kRichard G. Bach ann Counsel for NRC Staff Dated at Rockville, Maryland this 1st aay of August 1988 l

e I'

DCLKEIED UNITED ST ATES OF AMEP.IC A uwt NUCLEAR REGUL ATORY COMPISSION v '88 AUG -8 P2 55 BEFORE THE ATOMIC S_aFETY AND LICENSING APPEAL BO ARD

, $0CYh BN Y"

In the Matter of )

\

. LONG ISL AND LIGHTING COMPANY } Docket No. 50-322-t L-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

CEPTIFIC ATE OF SERVICE I hereby certify that copies of "N R C ST AFF RESPONSE TO INTERVENORS' APPE AL O F T H E M A Y 9,1988 P A R TI AL INITI A L DE CISIO N O N S UIT ABILIT Y OF RECEPTION CENTERS" in the above-captioned proceeding have been served on the followin g by deposit in the U nited States m ail, first class or, as indicated by an asteris k , tnrough deposit in the N uclear Reg ulatory Commission's internal mail system, this 1st day of August 1988:

Christine N. Kohl, Chairman

  • Joel Blau , Esq.

Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Appeal Suite 1020 Board 99 Llashington Avenue U.S. Nuclear Regulatory Commission Albany, NY 12210 Washington, D C 20555 Alan A. Rosenthal* Fabian G. Palomino, Esq.

Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Appeal Executive Chamber Board State Capitol U.S. Nuclear Regulatory Commission Albany, N Y 12224 Washington, D C 20555 Dr. W. Reed Johnson

  • Jonathan D. Feinberg, Esq.

Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service

, Board Three Empire State Plaza U.S. Nuclear Regulatory Commission Albany, N Y I2223 Washington, DC 20555 Philip McIntire W. Taylor Reveley III, Esq.

Federal Emergency Panagement Donald P. Irwin, Eso.

Agency Hunton & W0liams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, N Y 10278 Richmond, V A 23212

Stephen B. Latham, Esq. Herbert H. Brown, Esq.

Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.

Attorneys at Lau Karla J. Letsche, Esq.

33 West Second Street Kirk patrick & Lcck hart Riverhccd, N Y 11901 South Lobby - 9th Floor 1800 M Street, NW Atomic Safety and Licensing

, Board Panel U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, D C 20555 New York State Energy Office Agency Building 2 Atomic Safety and Licensing Empire State Plaza Appeal Board Panel Albany, NY 12223 U.S. Nuclear Regulatory Commission WasMngton, D C 20555 Spence II. Perry, Esq.

Martin Bradley Ashi.re, Esq. General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, D C 20472 Anthony F. Earley, Jr. Dr. W. Reed Johnson General Counsel lif Falcon Drive, Colthurst Long Island Lighting Company C harlottesville, V A 22901 175 East Old Country Road Hicksville, N Y 11801 Ms. Nora Bredes Shoreham Opponents Coalition Dr. Monroe Schneider 195 East Main Street North Shore Committee Smithtown, N Y 11787 P.O. Box 231 Wading River, N Y 11792 Barbara Newman Director Environmental Health Willia m R . C u m min g , Es q . Coalition for Safe Living OfHce of General Counsel Box 944 Federal Emergency Management Agency Huntington, New York 11743 500 C Street, SW Washington, D C 20472 Alfred L. Nardelli, Esq.

New York State Department of Law

, Dr. Robert Hoffman 120 Broadway Long Islar.d Coalition for Safe Living Rcom 3-118 P. O . Box 1355 New York, N Y 10271

. Massapequa, NY 11758 Docketing and Service Section*

Office of the Secretary l!.S. Nuclear Regulatory Commission Washington, D C 20555

/

71t21 E. Y a u n g ' f-CounsM for N RC Staff I

.

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