ML20151Y451
| ML20151Y451 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/28/1988 |
| From: | Lisa Clark, Matt Young NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#288-6191 LBP-88-02, LBP-88-2, OL-5, NUDOCS 8805050007 | |
| Download: ML20151Y451 (72) | |
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UNITED STATES OF AMERICA g 32 ,
NUCLEAP DECULATORY COMMISSION % E ~3 i r,rrin U r t:~t TAf ,
BEFORE THE ATOMIC SAFETY AED LICENSING APPEAL BOARDgg +'lLL f
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- LONG lSLAND LIGHTING COMPANY Docket No. 50-322-OL-5
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) (EP Exercisc)
(Shoreham Nuclear Power Station, ) .
Unit 1) )_ .;
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NRC STAFF RESPONSE TO LILCO APPEAL L OF THE FEBRUARY 1,1988 INITIAL ;
DECISION ON THE EMEPGENCY PLAN EXERCISE r
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)' Mitzi A. Young !
Counsel for NRC Staff !
!= l Lisa B. Clark Counsel for NRC Staff l i
April 28,1966 l
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8805050007 000420 (6 PDR ADOCK 05000322 / ,
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i UNITED STATES OF AMERICA t
NUCLEAP DEGULATORY COMMISSION i
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD i t
in the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise) f (Shoreham Nuclear Power Station, ) !
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1 NRC STAFF RESPONSE TO LILCO APPEAL !
OF THE FEBRUARY 1,1988 INITIAL )
DECISION ON THE EMERGENCY PLAN EXERCISE :
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Mitzi A. Young ,
Counsel for NRC Staff i
Lisa B. Clark
- Counsel for NRC Staff April 28,1966 i
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-I- lt TABLE CF EN1INTS :
. P,, age j
, l. INIMX1ETICN............................................... 1 j L
- 11. STATBENT OF T}E CATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 [
. i' l l i . I SSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 9 IV. NGAENT................................................... 9 t
A. CLl-86-11 and 0.1-86-13 Require that j the Licensing Board Review Exercise Results To Determine Mbether They t Peveal Any Deficiencies V.hich Preclude A F 'nd i ng Of Rea sonabl e As surance . . . . . . . . . . . . . . . . . . . . . . 9 B. The Licenstro Board Inconsistently and incorrectly Applied the Fundanental -
Flaw Standard.......................................... 21
- 1. The Licensing Board Properly h hitted Contentions EX-39 (Rmor Control) and t EX- 5 0 (Tra i n i rg ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
- a. Contention EX-39 (Pa or control)............. 22 u
l b. Conter.t i on D:-5 0 (Tra i n i rg) . . . . . . . . . . . . . . . . . . 24 l
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- 2. RuiIrgs on the Merits of Individual i Contentions....................................... 26 [
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- a. Public Infonrotion (Contentions >
EX-38 and 39)................................
26 :
! (1) The Board erred in finding that ;
untimely distribution of News i
Releases and EBS messages to the 5 rmdla and Rtmor Control actlons i did not constitute a fundamental l
! flew with respect to public ;
noti #ICat100............................ 27 ;
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- (2) Isolated responses at news ;
, conferences did not constitute !
l, a fundanenta l flew in the Plan. . . . . . . . . . 30 l
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Page (3) Alleged inconsistencies and inaccuracles in the EBS ressages were not fundamental
- flaws................................... 32 (4) The Board erred in concluding that a shadcw evaluation might occur as a result of the broadcast of conflictiry or confusing infonration to the public in EBS rressages (Contentions EX-44, 49.C, 27.F and 40.C)............................... 33
- b. Training (Contention EX-50).................. 34 (1) The Board erred in firding that the exercise results showed flaws in the training program................................. 34 C. The Licensing Board Exceeded Its Authority In The E>.crcise Waring By Conducting A De Novo _
Rev i ew O f Pl ann i ng Hea r i re i s sue s . . . . . . . . . . . . . . . . . . . . . . 37
- 1. The Board irrproperly Reevaluated LILCD's CorTrun l Ca t i on Sy s t em . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
- a. Response to Roachay inpediments (Contention EX-41)........................... 41
- b. The Flrdings on Ibblic Inforrotion (Contentions EX-38 and EX-39 Inproperly Reevaluated the Adequecy of % h%ssages.............................. 42
- 2. The Board Irproperly Reevaluated the LIFO Schane o f Re l y i ng on Regu l a r LI LCD Ehp l oyees . . . . . . . . . . . . . A3
- 3. The Board Arptied the Wrong Standard to Assess the LitID's Ability to inpicment the Traf fic Control Pf an
- (Content ion FX-40 -- Staf fing Traf fic Control Posts).................................... 46
- lil - r Page f
, a. Exercise Results............................. 46
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We Board's consideration of testimony b.
on the Moquacy of the Traf fic Control !
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- Pl an wa s ha rm l e s s e r ro r . . . . . . . . . . . . . . . . . . . . . . 49 E
- 4. Review of the Mequacy of the t m' -Training Program Was Error........................ 50 D. The Board's Fundamental Flaw Findings were Not All !
Surpo r t ed By Subs t a n t i a l Evi dence . . . . . . . . . . . . . . . . . . . . . . 52
- 1. No'Substential Evidence of Flaws i n Carmu11 ca t l ons Sys t em De s ign. . . . . . . . . . . . . . . . . . . 52
- a. Comun i ca t i ons Wi t h LBO. . . . . . . . . . . . . . . . . . . . . 52 i b. R C Cormun i ca t i ons . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 t
4
- 2. No Substantial Evidence That Camunications i i
Problems Reflected Fundamental Flaw in !
Inp l errent a t i on Tra i n i ng . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 !
1
! E. The Board's Reliance on Post-Exercise Reports To i Find Fundamental Flaws In The Training Program i Was Not Reversible Error............................... 55 F. The Suf ficiency and Clarity Of The Rationale t S t a t ed i n The I n i t i a l De c i s i on . . . . . . . . . . . . . . . . . . . . . . . . . Se i i !
J 1. The Becrd Articulated its Rationale For ,
j Finding Fundamental Flaws in RLsror 7
. Control Md Training With Suf ficient f Clarity........................................... 57 t l
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- 2. The Board Failed to State With Sufficient (
Clarity the Reasons For its Conclusions as i to the Mequacy of the Structure of i Comun i c a t i ons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 !
t i, t 7
IV. CINCUJS 10N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 i e !
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- IV -
TMLE OF AUTHORITIES
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. WLRT CASES Page Union of Concerned Scient ist v. NRC, 735 F.2d ILG7 (D.C. Cir. 1984)~
cert, denied, 469 US 1132 (1985).......................... 3,9,11,19, 21,40
/IM. INISTTMTlW DECISICNS Alabama Pcwer Co. (Farley, Units 1 and 2),
ALAB-18 2 , 7 AEC 210 ( 19 7 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,22,38 Carolina Power & Lloht Co. (Shearon Harris Nuclear Pcwer Plond,D-837, 23 bEC 525 (1986).................................................... 23 Carolina P eer & Licht Co. (Shearon Harr's
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Nuclear Pcwer Pl' ant)N-86-11, 23 FFC '. 4 (1986).................................................... 36,37 .
Carolina Pcwer & Llaht Co. (Shearcn Harris bbclear Power Plant), ClT. 24, 24 FRC 769 (1986).................................................... 10,11 Carolina Pmer & Lic;ht Co. (Shearon Harris Nuclear Power Pian't7,'IPP-55-49, 22 FFC 899, 910 (1985), a f f 'd, ALM-843, 24 FRC 200 (1966).................................................... 11,20,21 Oc.nmorwealth Edison Co. (Byron tbclear Pcmer Eit'a t i on , Un i t s 1 and 2 ) , AIAB-770, 19 hPC 1163 (1984).................................................... 56 Cormorwea l t h Ed i s on Co . ( Z i on S t e t i en ,
i Uni t s 1 and 2), ALAB7- 16,12 FRC 419 (1980).................................................... 37 Ccnsolidated Edison Co., (Indian Point, j
. Cril~t Nos. 2 and 3), CLI-83-16, 17 FPC 1006 l (1983).................................................... 37
- Consumers Pcwer Co. (Midland Plant, l
ETtT and 2), ALAB-235, 8 AEC 645 (1974).................................................... 37 l
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-v-Page Houston Lighting S. Power Co. (Allens Creek
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Nuclea7Generat ing Station, Uni t 1),
ALAB- 5 9 0 , 1 1 FRC 5 4 2 ( 19 8 0 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Long Island Lighting Co,. (Shoreham tbctear Power Station, Unit 1), CLi-87-5, 24 ffC 844 (1986)............................................. 5 Lorg Island Lighting Co. (Short. ham Nuclear PowerTtation, Lhi t 1), CLl-86-13, 24 PEC 22 (1986)............................................. passim Long Island Lighting Co. (Shoreham bbclear Fower Station, Uni t 1), CLl-86-11, 23 MC 577 (1980)................................................ passim lono Island Lighting Co. (Shoreham Nuclear Power Stat ion, Uni t'IE CLI-63-13,17 ffC 741 (1983)............................................. 3 Lorg Island Lighting Co. (Shorehirn tbclear P(wer S ta tlon, Uni t 1 ) , ALAB-855, 24 NFC 792 (1986)............................................. 5 Long Island Lighting Co. (Shoreham Nuclear Power Stat son, Uni t 1E AL/B-847, 24 PRC 41 2 ( 1 9 8 6 ) . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Long IsIand LichtIng Co. (Shorehirn tbcIear Pcuer Stat'l'oli,' Uni t 1 ), ALABI-832, 23 tRC 135 (1986), Rev'd in Part and aff'd in
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pa r t , CL l -8 7 - 12 , F tRC 3 8 3 ( 19 8 'll . . . . . . . . . . . . . . . . . . . . . . . . 5 Long Island Lichtina Co. (Shcreham tbclear Power S ta t l on, Uni t 1 ) , Al>B-818, 22 ffC 651 (1985)............................................ 5 Lorg I_slard Llahtire Co. (Shoreham Nuciear Pcme r S t a t i on , Un i t 1 ) , Al>B-788, 20 FFC 1102 (1987)............................................... 56 Lorg Island Lighting Co. (Shoreham Nuclear Power Station, Unit IT Initial Decision, LBP-88-2, 27 BRC (1987)............................... passim
- vi -
P,agg Lorg Island Lighting Co. (Shoreham Wclear
- - Pcmcr S t a t i on , Lh i t 1 ) , LPB-87-32 , 27 NRC ( De c ent>e r 7 , 19 8 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Long Island Lightire Co. (Shoreham Wclear Pcm r $'ta t i on , Lh i t 1 ) , LBP-85-31, 22 iRC 410 (1985)............................................ D i Islond Lightirg Co. (Shoreham Nuclear Jm Pcr Sta t i on, th i t 1 ) , LBP-85-17, 21 FRC 644 (1985)............................................ passim Northern States Power Co. (Prairie Island W clear
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Cenarat ing Plant , Unit's T and 2), ALAB-104, 6 AEC 179 n. 2 (1973)........................................... 58 l4111adelphia Electric Co. (Limerick Generating Stat iciri, Uni t s 1 and 2 )), ALM-819, 22 FFC 681 (1985) Review denied, CLi-86-5, 23 FRC 125 (1986)................................................ 23 Public Service Pcwer Co. of New Harrpshire (Seabr'uok S t a t i on , Lh i t s 1 and 2 ) , ALM-422, 6 tEC 33 (1977), a f f'd, CLI-78-1, 7 FFC 1 (1978), af f'd sub ncm. , New England Coal i t ion Cn Nuc l eHI l u t i on v. FRC, 582 F'2'd, 87 (F. Cir. 1978)............................................ 57,60 l Southern California Edison Co. (San Onofre l Nuclear Gene' rating Station, Units 2 and 3),
CLI-83-10,17 FPC 528 (1933) ............................. 4,40 t
Toledo Edison Co. (Davis-Pesse Nuclear Power Stat ion','UIl t s 1, 2 and 3)
ALAB-378, 5 bFC 557 (1977)................................ 28 l lhion Electric Co. (Callaway Plant, lhlt 1),
M27 4 0 , 18 BRC 3 4 3 ( 19 8 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 thron of Concerned Scientists, CPRA-83-1,
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1 7 FRC 7 1 9 ( 1 9 8 3 )'. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 i
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Pace STATUES WC Authoritzation Act For FY 1980, Pub.L.96-265, 96th Cong., 1st Sess.,
6 109(b)(1)(B) (unenacted) (1980)......................... 7,16 140 Authoriration Act For FY 1982-1983, Pub.L.97-415, 96 Etat. 2067 (1983)....................... 16 mC Authorization Act For FY 1984-1985, Pub. L. 98-5 53, 9 8 Sta t . 2 82 5 (1984) . . . . . . . . . . . . . . . . . . . . . . . 16 REG 4ATICNS 10 C. F.R. Sec t i on 5 0. 4 7 ( a ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,17 10 C.F.R. Section 50.47(a)(1)............................. 13 10 C.F.R. Section 50.47(a)(2) ............................ 15,16 10 C.F.R. Section 50.47(b)................................ 3 10 C.F.R. Section 50.47(b)(5)............................. 73,28 10 C.F.R. Section 50.47(b)(7)............................. 22,27,58 10 C.F.R. Section 50.47(b)(14)............................ 11 10 C.F.R. Section 50.47(c)(1)............................. 45,48 10 C.F.R. Sec t i on 50. 47 (c) (1 ) ( l i l ) . . . . . . . . . . . . . . . . . . . . . . . . 13,17 10 C.F.R. Section 50.47(s)(2)(ll)......................... 17 10 C. F.R. Pa r t 5 0, Append i x E , 61V. F. . . . . . . . . . . . . . . . . . . . . . 11,34 MlSGLIMOUS 4 7 Fed . Reg . 3 0 2 3 3 ( Ju l y 13, 19 82 ) . . . . . . . . . . . . . . . . . . . . . . . . 10,40 l
48 Fed. Reg. 16691 ( Ap r i l 1 9 , 1 9 8 3 ) . . . . . . . . . . . . . . . . . . . . . . . 17 Mmoranotm Of Understanding Between FB'A And WC 50 Fed. Reg.15485
( Ap r i l 1 8 , 1 9 8 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 l'
l l 5 2 Fed. Reg . 4 2 0 7 8 (Novenbe r 3, 19 87 ) . . . . . . . . . . . . . . . . . . . . . 2,7 i %
I FLFEG-0654/FBR-REP-1, Rev.1 (1980)...................... n,22,23,28 l
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
NRC STAFF RESPONSE TO LILCO APPEAL OF THE FEBRUARY 1,1988 INITIAL DECISION ON THE EMERGENCY PLAN EXERCISE I. lHTRODUCTION On February 1, 1988, the LicensinD Board, appointed to consider and hear contentions in the above-captioned proceeding on whether the Shoreham emergency exercise revealed fundamental flaws in the LILCO Plan, ruled that the February 13, 1986 exercise of the LILCO offsite plan for Shoreham "revealed certain fundamental flaws which, while they remain uncorrected, bar the issuance of a full power, full term operating license for Shoreham. " Initial Decision ( "l D") , LB P-88-2, 27 NRC _,
slip op, at 3. Specifically, the Board found flaws as to (1) communications within the Emergency Operations Center (EOC), among field workers and at the Emergency News Center (ENC), (2) timely staffing of traffic control posts, and (3) training in communications, traffic guide and bus driver functions, and prompt response of field personnel. ID at 251-52.
On March 7, 1986, Applicant filed "LILCO Brief on Appeal from the February 1, 1988 Partial Initial Decision on Emergency Planning Exercise"
("LILCO B rie f") . Therein it argued that the Board (1) adopted and applied an improperly broad definition of "fundamental flaw" that is not consistent with the Commission's mandate in CLI-86-11; O (?) the Board e inconsistently applied its overbroad fundamental flaw standard; and (3) failed to sufficiently articulate the bases and reasons for its conclusions.
As set forth below, the NRC Staff supports the LILCO appeal of the Initial Decision. The Appeal Board should reverse the Licensing Board's findings of fundamental flaws and find, using the appropriate fundarrental flaw standard, that the record shows that there are no fundamental flaws in the Plan, 2_/
II. STATEMENT OF THE CASE This appeal involves novel legal and factual issues concerning the Cor mission's emergency planning requirements. On February 17, 1983 Suffolk County (the County), New York decided not to adopt or implement an emergency plan for Shoreham. The Commission determined, 1/ 23 NRC 577 (1986).
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The position the Staff takes on appeal differs from , in some respects, the position taken in its proposed findings filed Septem-ber 11, 1987. The reason for the Staff's departure from its position below is the issuance of the Commission's new emergency planning rule which amplified and clarified the Commission's decision in CLI-86-13, 24 NRC 22 (1986) regarding the. showing necessary to establish that a utility plan can provide "adequate protective measures" in the event of an emergency. Evaluation of the Adequacy of Off-Site Planning for Nuclear Power Plants at the Review Stage
- Where State and/or Local Governments Decline to Participate in Off- r Site Emergency Planning, 52 Fed. Reg. 42078, 42084 (November 3, T587) ("Realism Rule"). As discussed in sections A and B.2, infra, to
' the Board applied the incorrect definition of a fundamental flaw the problems identified in the exercise.
however, that it was obligated to consider any proffered utility offsite emergency plan submibed in the absence of a State and local government-approved plan. CLl-83-13,17 NRC 741 (1983). At that time
- the Comrnission cor6mented, "the licensee will bear the burden of showing that its plan can meet all applicable regulatory standards." M. at 3.
Within two weeks of the Commission's decision, the Applicant submitted five alternative plans, one of which included the plan at issue here, the "LILCO Transition Plan," which established a Local Emergency Response Organization (LERO). The pertinent emergency planning rule in effect at the time included a recent amendment, 10 C.F.R.
6 50.47(a)(2), which provided:
"Emergency preparedness exercises ... are part of the operational inspection process and are not reauired for any initial licensing decision . "
D7 Fed. Reg. 30232, 30236 (1982). The U.S. Court of Appeals vacated this provision in May 1984. Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.1984), cert denied, 469 U.S.1132 (1985) ("UCS").
The Court expressly indicated, however, that its decision did not restrict the Commission's authority to determine that an exercise of emergency plans was relevant to an initial licensing decision only to the extent that the exercise showed the plans to be "fundamentally flawed." _ld,. at 1448.
The Court indicated that emergency planning hearings could be limited to issues that the Commission considers "material to its decision."
On June 20, 1985, the NRC asked the Federal Emergency Management Authority (FEMA) to conduct an exercise of the LILCO Plan. While plans for the exercise proceeded, extensive litigation of the adequacy of the LILCO Plan in terms of the sixteen planning standards in 10 C.F.R.
9 50.47(b), as implemented in the guidance set forth in "Criteria for Preparation and Evaluation of Radiological Response Plans and Preparedness in Support of Nuclear Power Plants," NUREG-0654/
. FFMA-REP-1, R6v. 1 (November 1980) (hereafter "NUREG-0654"), was decided by another Licensing Board (the OL-3 Board) in a Partial initial Decision, LBP-85-12, 21 NRC 644 (1985) ("PID") and a Concluding Partial Initial Decision, LBP-85-31, 22 NRC 410 (1985)("CPID"),
in the PID, the O L-3 Board made factual findings on more than seventy contentions which challenged various aspects of LlLCO's emergency plan, including whether the Plan contained adequate provisions for training LERO workers to carry out the pla n , mobilizino LERO workers in time to carry out their assigned duties, or for communication 3,/ In its CPID, the OL-3 between LERO workers. PID, 21 NRC 644, Board found two "fatal defects": (1) the applicant lacked legal authority to irrplement the plan it submitted and (2) the opposition cf the State and County to the plan created a situation where it could not be known whether the plan was workable. CPID, 22 NRC at 431. Both LILCO and l
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The proceedings before the OL-3 Board produced a transcript of i more than 22,000 pages and included the testimony of eighty-six j expert witnesses who testified during hearings which lasted for more than eight months. 21 NRC at 651, 655. Applying the standard in Southern California Edison Co. (San Onofre Nuclear Generating
. Station, Units 2 and 3), C LI-83-10, 17 NRC 528, 533 (1983), which emphasized prudent risk production measures, PID, 21 NRC at 653,
! the Board found that LlLCO had complied with the regulatory l* planning requirements for training and mobilization of LERO workers i
and for communication among emergency response personnel. Id. at l 756, 723-25, 735-37.
(
"I Intervenors appealed these decisions. - While Appeal Board and Commission appeals were pending on the LlLCO Plan, an exercise of the plan was held on February 13, 1986.
- In a June 6,1986 Memorandum and Order which interpreted the UCS decision, supra, the Commission directed the initiation of a hearing on the exercise results restricting the issues to those which, if proved, revealed "fundamental flaws" in the LILCO plan. CLl-86-11, 23 NRC 577 (1986).
The Licensing Board was to admit only those contentions which satisfied the specificity and other requirements of 10 C.F.R. 6 2.714 by (1) pleading that the exercise demonstrated fundamental flaws in the LILCO Plan and (2) providing bases which, if true, would demonstrate such fundamental flaws. CLi-86-11, 23 NRC at 581. Fundamental flaws would be revealed by ". . . any deficiencies which preclude a finding of reasonable assurance that protective measures can and will be taken."
M.at581.
Remaining before the Commission for decision were various appeals of issues arising out of litigation on the LILCO plan. In a July 24, 1986 Decision, the Conimission stated the "root question" for a finding of reasonable assurance under 10 C.F.R. 6 50.47(a) where a licensee tries to show that (1) the defects of noncompliance with the planning standards 4/ See ALAB-818, 22 NRC 651 (1985), reversed and remanded, CD 13, 24 NRC 22 (1986); ALAB-832, 23 NRC 135 (1986);
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reversed in part and affirmed in part, CLl-87-12, 26 NP.C 383 (1987);
ALAR-847, 24 NRC 412 (1986); ALAB-855, 24 NRC 792 (1986). As a result of those appeals, proceedings are going forward on matters concerning "realism" and "materiality," the adequacy of the LILCO Plan in the areas of relocation centers and monitoring of evacuees, the evacuation of hospital patients, the role conflict of school bus drivers, and the reopened matter concerning the emergency broadcast system (EBS). See CLl-P7-5, 24 NRC 844 (1987).
are not significant or (2) adequate interim compensatory actions can be taken, is ". . . whether the LILCO plan can provide for ' adequate protec-tive measures . . . In the event of a radiological emergency'" (footnote
- - omitted) . CLl286;13, 24 NRC 22, 29 (1986). The Commission also indicated that an adequate emergency plan did not require a preset minimum radiation dose saving or a minimum evacuation time. Id. at 30.
The Commission required the Licensing Board to assume that, in the absence of a government plan, the State and County would use the LILCO Plan in the event of a radiological emergency since the plan is superior to no plan at all. Id. at 31.
In the emergency planning exercise litigation, Intervenors submitted numerous contentions, having many subparts. On October 3, 1986, the Licensing Board admitted, inter alla , contentions alleging fundamental flaws in the LILCO Plan as shown by the performance of LILCO's Local Emergency Response Organization (" LE RO") . Prehearing Conference Order (Ruling on Contentions and Establishing Discovery Schedule),
October 3, 1986 (unpublished) ("PHC Order"). Among the contentions admitted ' vere Contentions EX-38 and EX-39 (Pubile information), EX-40 (Sta f fing of Traffic Control Posts), EX-41 (Response to Impedinants),
and EX-50 (Training), to which the LILCO appeal is addressed.
Litigation of the exercise results commenced on March 10, 1987 and continued until June 18. Before the Licensing Board issued either its partial initial decision b or initial Decision on the exercise, however, the LBP-87-32, 27 NRC (December 7,1987). That decision, which is
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the subject of a separate appeal, addressed whether the scope of the exercise met 10 C.F.R. Part 50, Appendix E, 6 IV.F.1.
Commission amended its emergency planning rule, effective December 3, 1987. 52 Fed. Reg. 42078 (November 3, 1987). In the Statement of Considerations accompanying the rule, the Commission stated the the
. approach reflect ~ed ~ in the rule "ampiles and clarlfles" the decision in CLI-86-13. Id. at 42084. In particular, the Commission noted that while Section 109 of the NRC Authorization Act of 1980 (Pub. L.96-265), which provided for utility plans, did not specify any role for FEMA in the evaluation of utility plans, the Commission would seek FEMA's evaluation but NRC has the ultimate decisional authority. 52 Fed. Reg at 42082-83.
While the rule was generally consistent with the Commission's decision in CLl-86-13, the Statement of Considerations made an important distinction:
The final rule makes clear that every emergency plan is to be evaluated for adequacy on its own merits, without reference to the specific dose reductions which might be accomplished under the plan or to the capabilities of any other plan. It further makes clear that a finding of adecuacy for any plan is to be considered generally comparable to a finding of adecuacy for any other plan.
52 Fed. Reg. at 42084. In emphasizing that the rule establishes a process by which a utility plan can be evaluated against the same standards used to evaluate a state or local plan, the Commission observed that "[o]ther than ' adequacy,' there is no uniform passing grade tcr emergency plans whether they are prepared by a state, locality or a utility. Rather there is a case by case evaluation of whether the plan meets the standard of ' adequate protective measures.'" Id.
In its February 1, 1988 Initial Decision on the emergency planning exercise, the Board found that the evidence of record concerning the
- exercise and other post-exercise drills , demonstrated that fundamental flaws existed with respect to the plan as alleged by the four contentions
listed above. ID at 62-63, 84-88,157-58,167-68, 250-51. The Board (ID at 251-52) summarized the flaws as follows:
- 1. Flaws relating to communications were demonstrated:
a; ~ Within the EOC in that the Evacuation Route Coordinator did not inform his superiors or co-workers of traffic impediments on receipt nf the free play messages, did
- not include complete informat;on on the impediments in the messages relayed to the route spotters, and did not request the prompt dispatch of one route spotter to verify one impediment;
- b. Among field workers in that the plan does not permit such lateral communications;
- c. At the ENC in that LERO was unable to furnish timely information on protective action recommendations in the form of EBS messages to the media and to rumor control, and was unable to accurately respond to questions concerning the traffic impediments and protective action recommendations at news conferences; and
- d. In the EBS messages in that they contained some conflicting information concerning protective action recommendations and were, in some respects, confusing in thair discussion of doses, releases, and emergency classifications.
- 2. A flaw was demonstrated in that large numbers of ,
Traffic Control Posts were not staffed until well after traffic <
congestion would have occurred.
- 3. Flaws in the training program were demonstrated in the areas of communications, functions of Traffic Guides and Pus Drivers, and prompt response of field personnel.
On Appeal, LILCO argues that the Board erred in: (1) admitting contentions that did not meet the threshold test for a fundamental flaw under CLi-86-11; (2) applying an incorrect definition of the fundamental flaw standard and finding that such definition included "a series of isolated performance problems" during the exercise, without regard to their impact on the public health and safety; (3) revisiting plann!ng
- issues that had been previously litigated and were the subject of final agency action, and were not affected by events during the exercise; (4)
relying on post-exercise training reports to support its conclusions on fundamental flaws in training; (5) Ignoring the Commission's Realism Rule in drawing its conclusions; and (6) falling to articulate its rationale and
- conclusions with' th~e requisite precision and clarity. LILCO Brief at 2.
Ill. ISSUES PRESENTED _
The LILCO appeal raises the following issues:
- 1. Whether the Roard erred in applying the fundamental flaw standard set forth in CLI-86-11 and in falling to apply the standard for "adequate protective measures," established in CLi-86-13 and the realism rule?
- 2. Whether the Board exceeded its authority in admitting certain evidence and in rendering a decision on issues that were the subject of the planning hearing?
- 3. Whether the Board decision is supported by substantial evidence that fundamental flaws exist in the plan and whether the decision contains a sufficient rationale articulated with clarity and precision?
IV. ARGUMENT A. CLI-06-11 and CLI-86-13 Require That The Licensing Board Review Exercise Results To Determine Whether They Reveal Any Deficiencies Which Preclude A Finding Of Reasonable Assurance in CLl-86-11, the Commission stated that the Shoreham emergency exercise litigation was to be limited to issues which are material to 4
IIcensing. 23 NRC at 581; see UCS, 735 F.2d at 1447-48. The Commission stated that review of exercise results is "restricted to determining if the exercise revealed any deficiencies which preclude a finding of reasonable assurance that protective measures can and will be taken, i.e., fundamental flaws in the plan." g. Accordingly, the Commission reasoned that, "(s]Ince only fundamental flaws are material licensing issues, the hearing may be restricted to those issues." M.
- - - - . . - - ~ ,7-,--~r, -,-e,, .--g ,r, , . - - - - , - , - - - - - ,, ,,,,w-- ,-rw,n,e- a r e -- , - - - - , - , - , - , - - - - - - -
The purpose of this phase of the litigation of LILCO's emergency plan was not to reassess the adequacy of each aspect of the Plan within the regulatory framework. The Board's review was for the limited
. purpose 'of detsrmining whether LILCO's exercise showed deficiencies which reflect fundamental flaws in the plan. CLI-86-11, 23 NRC 577, 501. Such flaws are distinguishable from minor or ad hoc problems which only reflect defects in the actual state of preparedness on a particular day, rather than inherent problems in the emergency plan. See UCS, 735 F.2d at 1441, quoting, 47 Fed. Reg. 30233 (1982). According to the Board, pervasive performance failures must be evident to support a fundamental flaw finding. ID at 10-11. A finding of reasonable assurance that protective measures can be taken under the plan is based, in part, on a determination of the adequacy and implementability of the plan. 10 C.F.R. 6 50.47(a)(2); Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLl-86-24, 24 NRC 769, 777 (1986). Th!s is also made clear by the Memorandum of Understanding Between Federal Emergency Management Agency and Nuclear Regulatory Commission, 50 Fed. Reg.15485 ( April 18,1985):
An interim finding on preparedness will be based on review of currently available plans and joint exercise results and will include an assessment as to (1) whether offsite emergency plans are adequate as measured against the standard and cderia of NUREG-0654/ FEMA P E P-1, and (2) whether the exercise (s) demonstrated that there is reasonable assurance that the plans can be implemented, in limiting litigation of issues arising from emergency planning exercises, the Commission clearly indicated that the purpose of such exercises is to
- determine whether the overall finding of reasonable assurance can be
- made. CLl-86-13, 24 NRC at 29-30; Shearon Harris, CLl-86-24, 24 NRC at 776-77.
10 C.F.R. 50.47(b)(14) provides that periodic exercises are to be
- conducted to ev'aluate major emergency response capabliities. 10 C.F.R. Part 50, Appendix E, 5 IV.F., which describes, in general, the purpose of emergency plan exercises, states in relevant part:
Exercises shall test the adequacy of timing and content of implementing procedures and methods, test emergency eaulpment and communications networks, test the public notification system and ensure that emergency organization personnel are familiar with their duties.
Appendi>: E, s IV.F. , discusses the proper training to maintain the response capabilities of emergency organizations and indicates that proper implementation of the plan is an important consideration in any reasonable assurance finding regarding emergency preparedness.
The "fundamental flaw" standard of CLI-86-11 governed the admissibility of contentions. PHC Order at 2. In addition, the Licenslng Board used the standards for admissibility of cmergency exercise contentions stated in the UCS decision and accepted the interpretation of the UCS standard set forth by the licensing board in Carolina Power r, Light Co. (Shearon Harris Nuclear Power Plant), LBP-55-49, 22 NRC 899, 910 (1985), affirmed, A LA B-843, 24 NRC 200 (1986), that "contentions alleging minor or readily correctable problems should be rejected." PHC Order at 4.
The Board failed, however, to adopt the clarification of the fundamental flaw standard set forth in CLl-86-13 as amplifien by the Realism Rule. The Commission in CLi-86-11 restricted the Board's review to determining if there were exercise ". . . deficiencies which preclude a
i l
finding of reasonable assurance that protective measures can and will be ta ken . " The Commission's decision in CLl-86-13 states: "The root question becomes whether the LILCO Plan can provide for ' adequate
. protective measures. ...
24 NRC at 29. The Commission then exten-sively comments 'on the meaning of "adequate protective measures." M.
at 30.
Under CLI-36-13, boards are to assume that the State and local governments would use a utility plan in the absence of a government plan.
,l d,. To determine the adequacy of the best-efforts government response, the Commission stated that the focus would be on whether:
There are questions [1] about the familiarity of State and County officials with the LlLCO plan, [2] about how much delay can be expected in alerting the public and [3] in '
makino decisions and recommendations on protective actions, or [4] in making decisions and recommendations on recovery and reentry, and [5] In achieving effective access controls.
The record tells us thet an evacuation without traffic controls would be delaye .' . . . [6] but [ flor which scenarios, if any, does [ delay] eliminate evacuation as a viable protective action?
M.at31. While this enunciation of what constitutes "adequate protective measures" was defined within the context of the realism proceeding (OL-3) on the issue of a best-efforts governmental response, the rationale is equally apphcable to an analysis of whether there is a fundamental flaw in an emergency plan, i.e., "the lack of reasonable assurance that protective measures can and will be taken." C LI-8 6-11, 23 NP.C at 581.
The Commission stated in promulgating the Realism Rule that the rule
. "amplifies and clarifies" the guidance in CLI-86-13 in that a finding of whether a utility plan provides adeouate protective measures is based upon the same standard used to evaluate state and local plans. The rule, therefore, indicates that the LILCO Plan may properly be viewed under the same standard that would apply to a State or local government plan.
10 C.F.R. 6 50.47(c)(1)(lii). A determination of whether certain protective measures are adequate does not depend on whether the action is taken by a utility offsite response organization instead of State or local
'Th u s , the standard for "adequate protective measures"
~
governments.
enunicated in CLI-86-13 applies to the Board's fundamental flaw findings in this proceeding.
Applying the six items enumerated in the above-cited auote from CLl-86-13. as pertinent to the exercise, the adequacy of 1.lLCO's exercise of the Plan was to be Judged by assessing those scenarios where (1) delay might be a factor in alerting the public and making decisions and recommendations on protective actions (including recovery and reentry) and (2) where evacuation might be eliminated as a viable protective action. Id. at 31. Thus, the LILCO Plan was required to provide an adequate range of protective actions and the exercise was to be used to Judge whether there was evidence that those protective actions could be taken.
In short, the employment of the "fundamental flaw" criterion requires that a contention raising exercise deficiencies must tend to show not only that in some manner an area of emergency planning falls short of meeting one or more of the 16 emergency planning standards in 10 C.F.R.
! 9 50.47(b), but also that the exercise evidence also precludes the finding of reasonable assurance called for by Section 50.47(a)(1). To prevail under an exercise contention, a proponent must establish that the deficiency either is not factually established, or that if proven, the delay resulting from a deficiency will not affect timely alert of the public, timely decisions and recommendations on protective actions and the
viability of evacuation. CLI-86-13, 24 NRC at 29-31. Implicit in this standard is not only the concept that readily correctable defects in the plan cannot be fundamental flaws, but that plari deficiencies for which
~
simple compensa' tory measures may he taken are also not fundamental flaws, b Thus, the deficiency must preclude the taking of a range of adequate protective measures feven where state and local best efforts are exercised) .
The ultimate question is not whether each aspect of regulatory compliance was affirmatively derronstrated by the exercise. To the contrary, the issue is, notwithstanding expected failures in execution of the plan, whether there is adequate provision in the plan to compensate for or correct such failures so as to enable the conclusion that there is reasonable assurance that protective measures can and will be taken to protect the public in the event of an emergency. An applicant is not required to show that the exercise, by itself, demonstrates compliance with each and every regu!atory standard. Rather, an applicant must show that the exercise reveals no deficiency in its plan which precludes the overall finding of reasonable assurance.
In this respect, the standard is analogous to the burcfen of an applicant to defeat a quality assurance contention -- to demonstrate that notwithstanding expected defects in construction , there is reasonable assurance that the health and safety of the public will be protected. See
-6/
Fundamental flaws may also be corrected through revisions to an emergency plan, however, if such matters are left uncorrected they may affect the public health and safety to the extent that protective measures provided by the Commission's emergency planning rule cannot be taken.
Union Electric Co. (Callaway Plant, Unit 1), ALAB-740,18 NRC 343, 346 (1983). Similarly, it is not reasonable to hinge the granting of a license on error-free exercises because only exercise deficiencies (or break-downs) Which r'eveal fundamental flaws in the plan would preclude an
~
overall showing that adequate protective measures can and will be taken must be shown. See ,i.ci,. -
Pursuant 10 C.F.R. 6 50.47(a)(2), FEMA's findings in regard to a state or local offsite emergency plan "constitute a rebuttable presumption on questions of adequacy and implementation capability" of the plan. The Licensing Board in its order admitting contentions recognized that FEMA findings concerning the adequacy of the plan and implementation capability may be challenged. PHC Order at 8-9. In light of the Realism Pule, however, FEVA's findings of deficiencies need not be accorded presumptive weight because those findings do not address the fundamental f!aw standard of CLI-06-11 and CLI 86-13 (i.e., the impact of delay on decisions concerning pt otective actions and whether evacuation remains
-7/
Construction quality assurance litigation, for example, must establish that any breakdown in QA procedures is not of sufficient dimensions to raise legitimate doubt as to the overall integrity of the facility and its safety-related components. Id. "A demonstration of a pervasive failure to carry out the quaTity assurance program might well stand in the way of the requisite safety finding." -Id. at 346.
Similarly, in emergency exercise litigation, a pervasive failure to carry out an emergency planning program in the exercise might preclude a finding of reasonable assurance that protective measures can and will be talten in an emergency.
8/ the Board properly considered FEMA's viable) . Nevertheless, findings.
The FEMA Post-Exercise Assessment, dated April 17, 1986, FEMA
. Ex . 1 (hereinafter -"FEMA Report" or "FEMA Ex. 1") contained numerous findings and recommendations based on observations of activities on the 4
day of the exercise. Of principal concern to the Board, were findings of Deficiencies and Areas Requiring Corrective Action (ARCAs) which are defined by FEMA as follows:
Deficiencies at a demonstrated and observed inadequacies that would cause a finding that offsite emergency preparedness was not adequate to provide reasonable assurance that appropriate protective measures can be taken to protect the health and safety of the public living in the vicinity of a nuclear facility in the event of a radiological emergency. Areas Requiring Corrective Action are demonstrated and observed inadequacies of performance, and although their correction is required, they are not considered, by themselves, to adversely impact public health and safety.
FEMA Ex.1, at 8. EI The Board compared the FEMA and t,'RC standards for serious flaws in an emergency plan or its imp!ementation and concluded that, although a FEMA deficiency might be more severe, it found that no meaningful
-8/ While a rebuttable presumption attaches to a FEMA finding on state and locel plans, the regulation does not provide for any presumption regarding FEMA's findings on utility offsite plans. See 10 C.F.R. 5 50.47(a)(2). See also Pub.L.96-295, 96th Cong. 1st Sess.,
6109(b)(1)(B); Pub.L- 97-415, 96 STAT 2067 (1983); Pub.L.98-553, 98 STAT 2825 (1984).
-9/
FEMA also has a third category for defects in exercises, Areas Recommended for improvement, which was defined as "problem areas observed during' an exercise that are not considered to adversely
- impact health and safety. While not required, correction of these would enhance an organization's level of emergency preparedness."
1d,.
distinction could be drawn between a fundamental flaw and a deficiency since both standards address circumstances where there is a lack of reasonable assurance that the public can be protected. ID at 9-10.
While the terrninology of a FEMA deficiency is very similar to the definition of a fundamental flaw, a FEMA deficiency is not equivalent to a fundamental flaw as the Board found . This is because the FEMA evaluation of the exercise did not go so far as considering whether the delays associated with the deficiencies would adversely impact the decisions and recommendations for protective measures and the viability of evacuation as required by CLl-86-13 and 10 C.F.R. 1 50.47. It is the N R C's task under Section 50.47(c)(1)(lli) and the fundamental flaw standard to examine the ramification of exercise events on a utility plan and determine whether plan provisions and the underlying judgments are fundamentally sound, insofar as exercise events reflect the capability to take a ranne of protective actions. See Fed. Reg. 16691, 16693 (1983); CLI-86-11, 23 NRC at 581. b 10/ For example, LILCO argues that a fundamental flaw is broader than
~~
a FEMA deficiency by pointing out that 10 C.F.R. 9 50.54(s)(2)(ll) gives operating plants four months to correct deficiencies in the state of emergency preparedness (i.e., FEMA deficiencies) before the Commission will determine what enforcement action, including possible shutdown of the facility, is appropriate. LILCO Brief at 17 6 n.10.
LILCO reasons that if FEMA deficiencies do not warrant shutdown of an operating facility, they cannot prevent issuance of an operating license. ,ld,. at n. 10.
While it is true that a single FEMA deficiency may not constitute a fundarrental flaw in the plan, many deficiencies (e.g., the training problems in various areas of the Plan) can amount to a fundamental flaw . Similarly, while the public health and safety must always be protected , the threshold for the adverse action of taking away a license is often higher than for the discretionary grant of a license.
s In response to LILCO's proposed three-part test b for determining whether the exercise revealed fundamental flaws, the Board agreed that the exercise defect should affect the public health and safety and that
- the failure must" be pervasive as opposed to a minor or ad_ hoc problem.
-Id. at 10. With respect to the third part of the LILCO test, the Board concluded that because the primary concern is whether there is reasonable assurance that the public can be protected, "It is of no consequence whether the condition is correctable only through substantial and far-reaching changes to the plan . . . [since such] considerations only affect the amount of effort required to eliminate the condition." ,l d ,
at 9-10.
LILCO argues that the Board should have adopted LILCO's definition that "fundamental flaw" is a pervasive systemic, conceptual flaw in a plan thot, because it substantially affects public health and sa fety would prevent issuar ce of a license if left untended. A fundamental flaw is not readily corr /rctable by equipment or training or simple, stra!ghtforward plan changes, but requires more basic changes to a plan because it is a fundamental defect in the way an a.mergency is conceived.
LILCO Brief at 10. LILCO cmphasizes the predictive nature of the NRC's review of emergency plans and emergency preparedness and, to support its position, LILCO points (M. at 12) to the Commission's statements that an exercise shows both:
'"~11/
LILCO defines a fundamental flaw as one which would substantia!!y
- affect the public health end safety, where the prcblem is systemic or pervasive rather than isolated, and the defect is not readily correctable by additional training, new equipment, or "some other reliable or verifiable method." It must, in LILCO's view, require LILCO a
i substantial or far-reaching revision of the emergency plan.
Proposed Findings, August 3,1987, at 8-9.
l
[T]he state of emergency preparedness at the time of the exercise, and whether the plan and the underlying judgments are fundamentally sound. If the outcome of the exercise showed that the plan and the underlyino judgments about its adequacy and capability of implementation were seriously flawed
-- a.s opposed, to details of its implementation in that exercise not reflecting on the overall capability of implementation --
reopening of the hearing record might be appropriate . . . .
- e a s if some detail of a plan, e.g. , a hard telephone link to a State emergency office does not operate properly during the exercise, the appropriate action is to remedy the problem by concrete action, not hold a hearing and hear the testimony of experts on j why the system failed on the day in question. If it should occur, however, that some key aspect of the plan turns out to be Inadequate or unworkable, or the judgments reflected in the planning process are untenable, or major revisions will be necessary, the hearing could be reconvened upon a showing that the Commission's standards for reopening have been met.
Union of Concerned Scientists, DPRM-83-1, 17 NRC 719, 723, 724 (1983). l LILCO also correctly observes (LILCO Brief at 13-14) that the U.S. I Court of Appeals for the District of Columbia, in vacating the rule which precluded the litigation of exercise results prior to the issuance of an operating license, stated that thr. Commission may properly limit hearirig issues to the substantive standard for licensing that they concern issues "mate rial" to ilRC decision making or the "fundamental nature" of emergency plans. UCS, supra, 735 F.2d at 1445-48. As the Court observed, "Emergency preparedness exercises .. . are evaluated to ensure titat they do not reve.a t any fundamental inadecuacies in the nature or implementation capacity of emergency preparednzss plans." 735 F.2d at 1451.
LILCO argues that it is clear from the UCS decision that exercise litigation is to be viewed as "a final step, not a hrst step, in reviewing the emergency plan" and hence it should be examined to identify
fundamental flaws in the plan, not "isolated problems of implementation as a result of individual actions on the day of the exercise." LILCO Brief at 16. Because LILCO believes that only the conceptual feasibility of the
. plan itself is at issue under the fundamental flaw sta nda rd , LILCO concludes that the Board improperly expanded the test so as to apply to plan implementation as opposed to the plan itself. Id. at 19.
The Staff agrees that minor or ad hoc problems wnich are limited in nature on the day of the exercise do not arise to the level of fundamental fla ws . E The pertinent inquiry under CLI-86-11 and CLl-86-13, as amplified and clarified by the Realism Rule, is whether the exercise shows that the delays caused by the deficiencies identified would preclude the provision of a range of protective actions under the Plan, even assuming state and locals exercise their best efforts. N 12/ In Shearon Harris, for example, the board reasoned that minor or readily correctable problems do not constitute funt,Jmental flaws. 22 NRC 899, 908-13 (1985). There the boar d rejected contentions which raised problems that could simply be remedied by obtaining additional first aid or facsimile cquipment, and additional training of field workers in decontamination procedures and use of anticontamination clothing and respirators, l_d .
13/ LILCO concedes that systemic or pervasive problems in plan implementation on the day of the exercise that have the potential to seriously affect the public health and sa fety could inc'icate a "fundamental flaw in the Plan provisions relating to training," but asserts that such problems were not revealed by the exercise results. LiLCO Srlef at 19, n.12. The Staff agrees.
LILCO also states that certain plan deficiencies identified by the Board have been corrected by minor revisions its Plan and implies that the Appeal Board shoind consider such revisions as evidence that the flaws fcand by the Board are readily correctable and are not fundamental. E3 LILCO Brief at 26 n. 20.
Consequently, as discussed in detail below , the initial Decision should be reversed based on the Board's failure to apply the fundamental flaw standard as clarlfled by CLl-86-13 and the Realism Rule.
B. The' Licens'ing~ Board Inconsistently and incorrectly Appiled The Fundamental Flaw Standard
- 1. The Licensing Board Properly Admitted Contentions EX-39 (Rumor Control) and EX-50 (Training) in admitting contentions in this phase of the proceeding, the Licensing Board adopted the standard set forth by the Commission in CLl-86-11 and sought to admit only those contentions which, if true, would establish that the "exercise revealed any deficiencies which preclude a finding of reasonable assurance that protective measures can and will be taken, i.e., fundamenta! flaws in the plan." PHC Order at 2. !
The Board also accepted the standards regarding litigation of I cmurgency planning exercise results set forth in UCS v. NRC, su pra ,
4 and as adopted by the licensing board in Shearon Harris. Id. at 3-4
- Thus, the Board accepted the standard for admission proposed by the licensing board in Shearon Harris that contentions alleging minor ad hoc probhcos occurring on the exercise day, or readily correctable problems, t,hould be rcJected. M. at 4; see 22 NRC at 910 The Licensing Board below also heeded the Commission's guidance in l C LI-86-11, that contentions concerning the results of the emergency planning exercise must also meet the specificity and other requirements for admission of contentions in NRC proceedings. PHC at 2, citing, 23 ;
NRC at 581. Accordingly, as the Appeal Board observed in Alabama Power Company (Joseph M. Farley Nuclear Plan t , Units 1 and 2),
- ALAB-182, 7 AEC 210, 216-17 (1974), a board's task is
to determine, from a scrutiny of what appears within the four corners of the contention as stated, whether (1) the requisite specificity exists; (2) there has been an adequate delineation of the basis for the contention; and (3) the issue sought to be raised is cognizable in an individual licensing proceeding .
[ Footnotes omitted]
If a contention meets these criteria, the contention provides a foundation
. for admission "irrespective of whether resort to extrinsic evidence might establish the contention to be insubstantial. The question of the contention's substance is for later resolution." Farley, supra, 7 AEC at 217.
- a. Contention EX-39 (Rumor Control)
Applicant argues that since the rumor control function is not a primary means of communication with the general public, and shortcomings in its execution are not likely to affect the health and safety of the general public to the degree necessary to constitute a fundamental flaw, the Board should not have admitted Contention EX-39 (Rumor Control).
LILCO Drief at 20.
Contention EX-39 was aomitted by the Board on the basis that whlie individual incloents may not reveal fundamental flaws , proof of many failures might collectively reveal a flaw in the plan. PHC Order at 21.
I Thus, the inability to deal effectively with a single question by a caller may evidence merely a minor or ad hoc problem. On the other hand, such repeated incidents taken together might collectively show that there is sufficient basis to preclude a reasonable assurance finding with regard
. to the ability to communicate effectively with the public.
The ability to deal with rumors is part of the public education and information planning stancard set forth in 10 C.F.R. 5 50.47(b)(7) as implemented in the criterion li .G.4.c. of NUREG-0654. That provision l'
i
, . - . ,,. , ,_..,.,--. --,-- , ,,e, , e - - . - . , - - . - - . - . _ , . . , -~-n,- ~ . , , - - . ,--m- ,,,,w. --.,e ---r-,.- , . - - , .
l states that "each organization shall establish coordinated arrangements for dealing with rumors . " While the rumor control function is not the primary means of communication with the general public, it is a separate
. element 'of a required emergency plan, not merely an extension of the requirement for early notification and clear instruction (EBS notification) to the public. g,10 C.F.R. 5 50.47(b)(5) and NUREG-0654, Criterion E
li.E.5.
Hence, while the rumor control functiori is not a primary means of communication with the general public, the inability to deal effectively with rumors may affect the information management function required by 10 C.F.R E 50.47(b)(5) and (7). Applicant argues that the shortcomings in this area observed on the day of the exercise did not affect the health and safety of the general public to the degree necessary to constitute a fundamental flaw. LILCO Brief at 20. This, however, addresses the merits, not admissibility of the contention. A determination on the merits of a contention is a matter for hearing, and should not be considered in
- addressing the threshold for admission of contentions. Carolina Power 6 Light _ Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 541 (1986); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALA B-819, 22 NRC 681, 694 (1985), review denied, CLi-86-5, 23 NRC 125 (1986); Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, .
547-50 (1980).
In sum, the Board correctly applied the standards for admission of
- contentions in this proceeding and did not err in admitting Contention Ex-39 (Rumor Control) for evidentiary hearing.
1
- b. Contention EX-50 (Training Regarding admission of Contention EX-50, the Licensing Board correctly noted that this contention's bases were redundant of many other contentions, b most of which were also admitted, and stated that it had "consolidated other aamissible referenced contentions in EX 50 wherever possible." PHC Order at 29.
The Board further acknowledged that the training program was already addressed in detail in the previous partial initial decision (21 NRC 644, 744-756) and concluded that it "would not take evidence on the details of the training program because that [was) thoroughly ventilated 14/ The sub-parts of this catch-all contention consisted of cites to errors committed during the exercise identified elsewhere in Intervenors' proposed contention as foll ws:
A. Free play events and actions - Contentions EX-38, 39, 41 and
'2 B. Implementation of the plan and procedures - Contentioas LX-33, ,
1 35-39, 41, 42, 45 and 49 C. Communicatirig and obtaining data - Contentions EX-34 to 39, 41, 42 and 45 D. LERO persottnei following directions - Contentions E X -41, 42 and 45 E. Lack of independent judgment on the part of LERO workers -
Contentions EX-34 to 43, and 45 F. ENC performance In dealing with the media -
Contentions EX-37, 38, 40.C and 43. A
. G. Training of support organizations - Contentions EX-27 and 28 j Training regarding dosimetry, etc. - Contentions EX-42 and 45 H.
Intervenors "Emergency Planning Contentions Relating to the Febru- .
ary 13,1985 Exercise," August 1,1986.
I e
y in previous hearings." g. at 30. The Board sought to limit the potential for repititious evidence at hearing by stating it would "hear evidence only once on each admitted factual matter in dispute regardless
+ of whether it ' phtains to Contention EX 50 or to some referenced contention that has not been consolidated." I d,. The Board limited the inquiry under Contention EX-50 or the other admitted contentions to "whether flaws specified in the bases occurred in the exercise and . . .
whether they collectively point to a fundamentally deficient training p rog ram. " i d,.
Since the training program for LERO was formerly the subject of extensive litigation, a contention admitted for hearing in connection with the exercise proceeding must allege a nexus between the deficiencies identified in the February 13, 1986 exercise and a pattern of breakdowns in the training program.
The Goard justified the admissicn of Contention EX-50 by reasoning that the decision after the planning hearing "acknowledoed that the oxercisc was to be the vehicle that would confirm the adequacy of the training program" since FEMA's two- tage review process would assess training on exercise performance. PHC Order at 29-30; accord, 21 NRC at 756. FEMA, however, made no findings with regard to the training prog ram, nor was adequacy an issue addressed specifically by FEMA in the exercise, Tr. 8286 (Keller).
The Staff opposed adniission of Contention EX-50, in part, because it was redundant of other contentions which the Staff believed were l' admissible. However, to the extent that the Board sought to structure the hearing so as to group, in one contention, all concerns regarding i
l
M i
4 whether the exercise results reflected adversely on the adequacy of the training program, the admission of Contention EX-50 was proper.
- 2. Rulings on the Merits of Individual Contentions
. The Board recognizec: that a fundamental flaw must be one that ,
would have a substantial effect on the health and safety of the public in a real emergency. ID at 8-10. The failure must be pervasive, as opposed to a minor or a_d, d hoc problem. That is, the demonstration in an exercise of a pervasive failure to carry out a portion of the emergency plan might preclude a finding of reasonable assurance, whereas an isolated failure may not. M. at 10. The Board further acknowledged that, where the failure is not isolated , but pervades an Applicant's performance in the exercise, a fundamental flaw is demonstrated. M. at 4
11.
However, the Becro failed to apply the direction given by the Commission in CLl-86-13 regarding what is meant by "adequate protective measures." That is, the Board should have also considered that in order to find a fundamental flaw, it must be shown that adequate protective 5
actions could not or would not be taken because the performance of personnel during the exercise affected the ability to make protective action recommendations or eliminated protective action options. Using this
, i Board clearly erred in evaluating public information t
standard , the (Contentions EX-38 and EX-39).
- a. Public Information (Contentions EX-38 and 39)
The board found a fundamental flaw in Plan provisions for pubile Information (Contentions EX-38 and EX-39 ) . Specifically, the Board found that failure in four basic areas, taken together , constitute a r l
l l
l 5
fundamental flaw in the Plan, as follows: (a) failure to promptly provide ,
the written text of EBS messages to the media at the Emergency News Center (ENC); (b) failure to keep Call Boards and District Offices
. ( Rumor Contro! personnel) advised as to what protective action recommendations had been broadcast to the pubile by the EDS messages:
(c) failure of the LERO spokesps.rson to accurately report to the media at the ENC protective active recommendations that were previously broadcast to the public by the EBS messages; and (d) failure of the EBS messages themselves to be free of inconsistencies and inaccuracles. The Staff does not agree that exercise actions regarding public information showed a fundamental flaw in the Plan, nor do any of the failures cited above show an inability to make protective action decisions / recommendations or preclude evacuation as a viable option under the Plan. ,
l (1). Untimely distribution of News Releases and EBS messages to the media and Rumor Control did not constitute a fundamental flaw with respect to public notification.
The failure to promptly provide the written text of EBS messages in the form of news releases to the media, and the failure to provide this same data to Rumor Control was caused by copier machine breakdowns on the day of the exercise. ID at 133. The Board makes two errors in its finaings on this issue. First, the Board assigns the media a fundamental role in the dissemination of information to the public. ID at 126. This position cf the Board ignores the regulatory requirement of 10 C.F.R. 50.47(b)(7) that specifies the EBS as the essential conduit of emergency action information. Seconaly, the Board misperceives the proper role of
- the rumor control fur.ction provided by the District office and Call Board 4 -
operators in finding this an essential conduit of public information. ID at j 138, 157.
H
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There were no flaws as to the timely dissemination of EBS messages to the public and, thus, the regulatory requirement for timely provision to the public of protective action recommendations was met. See ID at
. 129; LILCO EX'-3tr and EX-39 Testimony, ff. 3206, at 20-21, 23. The i Board erred in finding that the delay in providing media represent ;ives at the ENC with written text of previously broadcast messages constituted a fundamental flaw in the plan. The subject information had been given to the public via the EBS messages. The breakdown of the copier machines was the root of the problem, and copier breakdown is an ad hoc or minor problem that is specifically excluded from the definition of a fundamental flaw.
The Board noted that these news releases were "little more than a restatement . . . of the EBS messages." ID at 136 n. 35. The Board also accepted the testimony of intervenors' witnesses that "the media at the ENC would either hear or be told of the EBS messages as they were t
broadcast." ID at 135, citing , Suffolk County EX-38 and E X-39 Testimony, ft. Tr. 3786, at 69-71; sec also ID at 136 n. 35.
Consequently, delays in providing copies of news rele. would not impact the broadcast of EBS messages and the Board incorrectly I determined that the public health and safety is somehow significantly l affected by events at the ENC.
> In a similar vein, the Board assigns a more significant role to the Rumor Control function than that contemplated by the regulations. The 4
LILCO plan calls for instructing members of the public to call its District
'
- Offices or Call Boards with their questions during an emergency, and these are forwarded to the ENC or Emergency Operations Center (EOC)
for answer. ULCO EX-38 and EX-39 Testimony, ff. Tr. 3206, at 52-56.
This is not the primary means used to disseminate protective action recommendations to ti'e public. It is the EBS system that is the main
- conduit 'of eme'rgency information. 10 C.F.R. I 50.47(b)(5), NUREG 0654-REP 1, Rev. 1, 6 li.E.5 and Appendix 3. The proper function of rumor control is "to spot potential rumors (usually indicated by two or more questions on the same topic) and dispel them with corrective announcerrents at the ENC, although Rumor Control personnel answer every inquiry received." ID at 148-149, citing, LILCO EX-38 and EX-39 Testimony, f f. Tr. 3206, at 51-56.
The Boaro erred in finding a fundamental flaw in rumor control functions that occurred during the exercise. Like the provision of news reicases to the media at the ENC, the distribution of copies of the EBS messages to the rumor control personnel staffing the phones was delayed because of copler machine breakdowns. ID at 155-156. FEMA Ex. 5 at 47, Tr. 7882, Baldwin; Tr. 7906 Keller. As a result, the personnel staffing the rumor control phones were not able to accurately provide additional information regarding current protective action recommendations to any telephone inquiries. I d,.
None of the inquiries evidenced any concern about specific protective action recommendations. ID at 149-150. The coneern addressed here was the failure of any of the operators to not only provide each caller with answers to the specific questions asked, but also include additional Information reiterating the protective action information that had previously been broadcast over to the EBS system. ID at 152-156. In fact, in dealing with these incidents individually under the rubric
s "Alleged 1.ack of Good Judgment" and "Alleged inaccurate information,"
the Board specifically eschews finding a fundamental flaw in the Plan.
N'
. Hence, thdre is no basis for the Board's finding that the failure to ;
provide current protective action telephone inquiries (even if not told of recommendations in response to a few, Isolated telephone inquiries) would significantly affect the general public's response to timely broadcast of protective action recommendations in the EBS messages, the primary means of communciation to the public. Again, this falling was the result of minor, ao hoc problems (equipment failure) that occurred on the day of the exercise, and does not fall within the definition of a fundamental flaw. The Board misapplied the standard to reach the conclusion that untimely distribution of EDS messages to rumor control personnel constitutes a fundamental flaw in the plan. 7 (2). Isolated responsus at news conferences did not constitute a fundamental flaw in the Plan The Board found that the LERO spokesperson generally furnished accurate in formatior.. ID at 145. The Board determined that the LERO spokesperson should have been able to respond to detailed questions on the two traffic impediments in spite of the fact that the spokesperson was reporting simulated events and thus did not have detailed information.
M. at 145.
The Bocrd assesses this failure as part of the fundamental flaw in ,
- providing public information without any reference to whether this lack of detailed Information would affect the public health and safety . Since information on the trsffic impediments was broadcast to the public via the ,
EBS messages (LILCO EX-38 and EX-39 Testimony, ff. Tr. 3206, at 74),
- m. w,____- . _ . _ . _ _
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there is no basis in the record for finding that a failure to provide additional details to the media at the ENC is a fundamental flaw in the provision of public information.
+ The Board' fa~ulted the LERO spokesperson's performance at the first news conference for stating that the only protective action recommendation Issued concerned schools without acknowledging that a recommendation cuncerning milk producing an:.mais was contained in an early EBS message. ID at 148. However, Once again, this information was timely broadcast to the public via the EBS (id_. at 129; LILCO Contention EX-38 and EX-39 Testimony, ff. Tr. 3206, at 20-21, 23), and its omission at the press conference does not rise to the level of a fundamental flaw because it would not impact the general public health and safety.
Likewise, the Board found the statement by Dr. Drill at the news conference could significantly affect the public health and safety. ID at 148. Dr. Britt was not a fermal member of the LERO organization, but a consultant frem the Brookhaven National Laboratory. Dr. Brill miscalcu-lated the cose projections based on an erroneous understanding of the sheltering factor contained in the plan, and stated that, in spite of the evacuation recommendation, in all likelihood, he personally, would not evacuate. Suffolk County EX-38 and EX-39 Testimony, (f. Tr. 3766, at 91-93.
While Dr. Brill's statements were both imprudent and incorrect, the Boaro ignored the testimony of Applicant's witness that the statements concerning evacuation recommendations were corrected after taping of the
- Tr. 3576 (McCaffrey). Mr. Evans, formal news conference ended.
Intervenors' witness, also testified that the correct LERO response to
I Dr. Brill's statements would be for the LERO spokesperson to reiterate the evacuation recommendation. Tr. 4062-63. The undisputed evidence shows that was done. Tr. 3576 (McCaffrey); cf. ID at 148 n. 42. The Board does not explain why either of these minor comments by Dr. Brill would have any significant impact on the public health and safety.
The Board erred in concluding that these fcw isolated instances of imperfect performance out of a full day's worth of news conferences held on the day of the exercise constituted of a fundamental flaw in public
- notification.
(3). Alleged inconsistencies and inaccuracles in the EBS messages were not fundamental flaws !
The Board found three problems with the EBS messages that it viewed as an Integral part of the fundamental flaw concerning public i
notification. Specifically, the Board was concerncd that (1) while the
' r EBS messages gave dose projections, the news releaset at the ENC spoke '
in terms of dose rate projections and the difference between the two is ,
sigriificant er'ough to require explanation to the press; (2) the EDS messagts referred to releases es "small," "minor," "major" and "significant" without providing any quantification of these terms; and (3) the EBS messages state an emergency classification Icvel has been declartd without an explanation of what the specific emergency classifica- [
! tion signifies. ID at 167.
The clieged inconsistencies would not have affected the public
. response to EBS messages. The Board itself notes that the proper place ;
for information on radiation levels bnd emergency classification levels '
l' bekings in the brochure, and not in EBS messages. M. at 162-64. ,
i
! Further, the neco to inform the press at the ENC as to the difference 1
between dose rate projections and dose projections EI certainly cannot be counted a flaw in the EBS messages. ,
The Board correctly concluded that the "EBS messages convey the
- necessary inform'atibn effectively, and we would be extremely reluctant to i reach a conclusion that could have the effect of making these messages more complex." d at 163.
Id. Notwithstanding this determination, the Board found the failure of EBS messages to include information, which the Board recognized as belonging in brochures, is part of a fundamental flaw. There was no showing on the record below that absence of information in the three areas cited had any detrimental effect on the ability of the public to respond to the EBS messages.
(4). The Board erred in concluding that a "shadow evacuation" '
might occur as a result of the broadcast of conflicting or l
confusing information to the public in EBS messages ,
(Contentions EX-44. 09.C, 22.F and 40.C) '
The Board was also incorrect in its determination that the inconsistencies it found in the EBS messages would detract from the effectiveness of the EBS messages to the degree that the public would be ;
confused and a "shadow evacuation" might occur as a result of this confusing or conflicting information. Id. at 170-171. There is no evidence for this in the record. The Board found EBS messeces them-l selves to be both timely broadcast and adequately informative. ID at 163; see LILCO EX-38 and EX-39 Testimony, ff. Tr. 3206, at 20-21, 23.
1.ioreove r , the EBS messages were formerly (cund to be proper l
I i
- 15/ See generally Suffolk County EX-38 and EX-39 Testimony, ff. Tr.
171I6, at 188-218; LILCO EX-38 and EX-39 Testimony, Atts. E and P; i Tr. 3695, 3699 (McCaffrey). ;
i l
1
(LBP-85-12, 22 NRC at 698) and were not subject to reexamination in this i proceeding. See section IV.B.2(a)(3), supra. The only problems with ,
ERS messages identified by the Board were, at most, minor details that protective action
~
would not affect the public's response to recommendations.
Further, these minor or ad hoc problems cannot, under the Board's own definition, constitute a fundamental flaw in the public notification i
provisions in the Plan. Hence, the record does not support the Board's speculation that a "shadow evacuation" might materialize on Long Island r
because the EBS messages were not specific, clear and informative.
- b. Trainino (Contention EX-50)
(1) The Board erred in finding that the exercise results showed flaw = in the the training progran The Licensing Board found that the exercise demonstrated training deficiencies in specific areas that significantly affect the ability of LERO to implement the Plan. EI ID at 250. These deficient areas included (ID i
r at 250):
(1) training for, and execution of internal communications within t the LERO command structure and between that structure and field personnel in response to unexpected events; (2) hasic knowledge of Traffic Guides and Bus Drivers of their assigned functions; and i
r t
i*
16/
6 Training, itself, is part of the emergency response plan. 10 C.F.R. Part 50, Appendix E, i IV.F.
l I
[
(3) training for timely and prompt response of Traffic Guides, Bus Drivers, Route Spotters, and Road Crews in the performance of their emergency tasks.
Applicant argues that none of these matters evidence a pervasive failure of LERO to implement the plan in regard to training, but rather constitute isolated ad hoc incidents that occurred the day of the exercise and these are not fundamental flaws. LILCO Brief at 36. The Staff agrees that none of the performance problems the day of the exercise revealed a fundamental flaw in the plan.
The Board's finding that the training program is fundamentally flawed was based on its analysis of the performance of LERO personnel in the following areas: (1) at the EOC, (2) at the staging areas and (3) at the ENC. The Board found that a large part of the problems encountered the day of the exercise resulted from poor communications within the EOC, and between personnel in the EOC and field workers at staging areas and at traffic control posts. ID at 213-215, 251.
While this failure in cerr.munications does evidence a failure to appropriately and adequately train LERO personnel in the utlllzation of the communication system in the Plan, it is not evidence that the tralning program is fundamentally flawed. None of the communication difficulties discussed by the Board impacted the ability of LERO to make decisions and recommendations for protective actions. Under the Corrmission's direction in CLl-86-13, these performance errors do not meet the standard for finding a fundamental flaw since there is no evidence that the failures
- affected a recommendation or decision concerning the appropriate protective action nor did ar.y delay causc the climination of protective action options during the course of the exercise.
s The Board also found that the procedures for mobilization of traffic guides and route spotters, as well as the poor performance of bus drivers observed by FEMA on the day of the exercise, resulted from a lack of
+ adequate training." ID at 241, 250; FEMA Ex. 1 at 68-70, 77. These were isolated, ad hoc Incidents. For example, two out of three of the staging areas experienced significant problems in timely mobilizing ,
equipping and dispatching traffic guides and route spotters. ID at 84; LILCO EX-40 Testimony, ff. Tr.1548, at 13-14. T hree of the eight bus drivers obscrved by FEMA cither got lost or missed part of their routes.
Tr. 8547-48 ( Keller) . The response of road crews to the two roadway impediment incidents, while largely a result of communication failures, was nevertheless sufficiently inadequate for FEMA to assess a deficiency in this area. ID at 42; FEMA Ex.1 at 121.
If taken together, these problems in performance evidence a failure of the training program to properly tr.ach these personnel to adequately implement the Plan. Although the Board determined that the various deficiencies in the training program constitute a fundamental flaw in the Plan (ID at 251), it never deterrained whether the standard in CLl-86-13 was met. Therefc.re, the Board's finding was in error, b 17/ Applicant argues that the Licensing Doord decision in Shearon Harris
~
case stands in "stark contrast" to the Board decision in Shoreham.
LILCO Brief at 36. However, neither admitted contention in Shearon Harris concerned tralriing. F,a the r , the two contentions dealt with (1) problems in communications equipment and (2)
- problems in coordination of EBS broadcasts among four Counties and the State. Shearon Harris, 23 NRC at 294, 403. By contrast, communications shortcomings experienced at the Shoreham exercise dealt not with equipment, but with the capability for effective (FOOTNOTE CONTINUED ON NEXT PAGE)
C. The Licensing board Exceeded its Authority in The Exercise Hearing By Conducting A De Novo Review Of Planning Hearing Issues The Licensing Board derived its mandate from CLi-86-11, where the i Commission directed the Board to initiate an "exercise hearing to consider evidence which Intervenors might wish to offer to show that there is a
- fundamental flaw in the LILCO emergency plan." 24 NRC at 579, Accordingly, the Board's jurisdiction was limited to a consideration of matters allegedly constituting "fundamental flaws" in the LILCO emergency i
plan. See Commonwealth Edison Co. (Zion Station , Units 1 and 2),
ALAD-616, 12 NRC 419, 426 (1980) (a board's jurisdiction is limited by the notice of hearing and extends only to issues fairly raised by matters the Commission has placed before it) . As the Commission stated in Consumers Power Co. (Midland Plant, Unit 1 and 2), ALAB-235, 8 AEC 645, 647 (1974), "[e]xcept where it recuses itself in a particular case, a licensing board's actions can neither enlarge or contract the jurisdiction 3
l conferred by the Commission."
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) communications among personnel; and there was no necd to coordinate EBS messages among several offices as this was a matter controlled solely by LERO. ID at 250-251.
l Second, the Licensing Board in Shearon harris based its granting of summary disposition on commitments that the plan would be changed and that "additional training, including going through the entire exercise using actual equipment and personnel, would be conducted."
- 23 NRO at 404 The Board's conclusion that a further exercise was necessary (ID at 251), although not based on a proper standard for 3
a finding fundamental flaw, is not unique, in Indian Point a j* remedial exercise was also required before a finding of reasonab'a
, assurance couto be made. Consolidated Edison Co. , (Indian Point, Unit Nos. 2 and 3), CLI-83-16,17 NRC 1006,1020 (1983),
i i
I
LILCO argues that the B oa rd 's jurisdiction was restricted to a determination of "whether the Shoreham exercise results revealed fundamental flaws in the LILCO plan which precluded a finding of
, reasonable assurance under 9 50.47(a)." LILCO Brief at 38, citing, C Li-86 -11, 23 NRC at 581. In addition, LILCO crgues the Board's narrow jurisdiction was reinforced by the Commission's direction "'to expedite the hearing to the maximum extent consistent with fairness to the parties.'" M. at 39, quoting , CLl-86-11, 23 NRC at 581. In sum, LILCO asserts that the Board's failure to recognize proper jurisdictional limits was shown by: (1) the failure to properly control the admission of testimony in the proceeding (testimony on mobilization of Traffic Guides was rejected in the planning hearing , but admitte.d below); (2) the admission of, and reliance on, post-exercise drill reports to support its finding of fundamental flaws; (3) the g novo review of training program objectives; (4) the finding of a need for lateral lines of communications to respond to unexpected cccurrences such as roadway impediments; (5) the reevaluation of the adequacy of EBS mes' iges; and (6) the re-evaluation of the adequacy of the LILCO training program to prenare LERO for its "professicnal" emergency functions and the adequacy of the program in general. LILCO Brief at 40-50. $
18/ LlLCO emphasizes throughout this portion of its brief that rulings in the PID should have been accorded absolute finality by the Licensing Board. E.l. , LILCO Brief at 40. T he Staf f, however, coes not
, agree. It is true that matters which have been finally decided by prior adjudication should not be heard again. See _ Toledo Edison Co.
(Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-378, 5
. NRC 557 (1977); Alabama Power Co. ( Fa rley , Units 1 and 2),
(FOOTNOTE CONTINUED ON NEXT PAGE)
The Staff agrees that the Board failed to limit the scope of its review to a determination of whether the exercisa revealed fundamental flaws as defined in CLl-86-11 and clarified by CLl-86-13. The failure to
~
- follow the OL-3 Board's conclusions, unless such findings were disturbed by exercise results, permeates the Initial Decision as highlighted by the reevaluation of the adequacy of ERS messages (see ID at 67-68),
4 provisions for lateral communications among LERO personnel to facilitate responte to unexpected occurrences during a radiological emergency (see ID at 53), the need for professional emergency workers other than LERO, i.e., the police (see ID at 63-64), and the substance of the LERO training program (see ID at 236-37). The Staff addresses each of these topics below, i 1. He Board improperly Reevaluated LILCO's Communication System Following extensive litigation over LILCO's offsite emergency plan, l the OL-3 Licensing Board found that the design of LILCO's communication system met the regulatory requirement that there be reasonable assurance i that adequate protective measures can and will be taken in the event of a radiological emergency. LBP-85-12, 21 NRC 644, 735-37. In that proceeding, Intervenors challenged LILCO's administrative communication i
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
ALAB-182, 7 AEC 210, 212-13 (1974) (no relltigation of issues of law I or fact which have been finally adjudicated by a tribunal of competent jurisdiction in a proceeding involving the same parties or their privies), in this instance, however, some findings on the l, planning hearing were subject te confirmation by the results of the i
exercise. E.g., 21 NRC at 671, 756. Thus, some OL-3 Board
) conclusions were subject to reconsideration, although such an analysis was to be limited in scope (i.e., fundamental flaws).
l l
t t
system on the grounds that it used vertical pathways for communication within a hierarchy, thereby preventing communications between field j personnel, id,. at 729-30. After considering the reservations expressed
, by the Intervenors, the Board observed that the system adopted by LILCO was not the most versatile one possible, but found the system adequate for the purpose of evacuating the EPZ in a timely manner in the j event of a radiological emergency. M. 61 737.
In its decision, the Board noted that ncne of the parties was able to establish that the administrative design used by LILCO, or the operational 7 design proposed by the intervenors, was inherently defective. instead, the parties simply established that there were advantages and ois-advantages in each plan depending upon the expected goal and anticipated ;
use. M. at 735. The Boaro recognized that "[nleither system is likely ,
to succeeo flawlessly nor to fall totally if it is implemented during an evacuation. " M. T hus , the Board approved LILCO's communication system not because it was the best one possible, but because it was M. at 653, sufficient to carry out prudent risk reduction measures.
quoting, Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10,17 NRC 528, 533 (1983).
The purpose of this phase of the litigation of the exercise of I LlLCO's emergency plan was not to reassess the adequacy of each aspect within the regulatory framework. At this point, the Board':, review was for the limited purpose of determining whether LlLCO's exercise showed ;
deficiencies which reflect fundamental flaws in the plan. CLI-86-11, 23
- NRC 577, 581. Fundamental flaws are those which would preclude a finding of reasonable assurance that adequate protective measures can and
will be taken, M. , by delaying protective action decisions or recommendations or by eliminating evacuation as a viable protective action. CLI-86-13, 24 NRC 22, 31. Such flaws are distinguishable from
, minor or ad Loc problems which only reflect defects in the actual state of preparedness on a particular day, rather than inherent problems in the e
emergency plan. See UCS v. NRC, 735 F.2d at 1441 (1984), auoting, 47 Fed. Reg. 30233 (1982).
1
- a. Response to Roadway Impediments (Contention EX-41)
Decause the conclusions reached by the Board were not supported by the exercise results, the Board improperly reconsidered findings made by the OL-3 Licensing Board as to the adequacy of LILCO's communication system. Although the Board attempted to justify its action by characterizing the OL-3 Board's approval as "scarcely ... enthusiastic" (ID at 52), the Board improperly reconsidered an issue where there was no basis in the record to justify its inquiry.
As the Board emphasized in its decision, the approval of the OL-3 Board was based on assumptions about the manner in which an evacuation would occur in the event of a radiological cmergency. For example, the OL-3 Board found that "traffic guides could not improve overall roadway network evacuation times by making isolated ad hoc decisions about traffic flow . " 21 NRC 644, ?36-37 On that basis, the OL-3 Board concluded that LILCO's communication system was adequato although better ones existed, y , at 737. Contrary to the Board's characterization (ID at 52), however, those assumptions did not "Quallfy" the approval. Instead, a they were merely a necessary compor'ent of the predictive nature of the cmergency planning process.
l 1
s
- 112 -
While the Board disagreed with the assumptions and conclusions made by the OL-3 Board on the subject of communications, they were not before the Board for approval. The only question before the Board was
. whether 'LILCO"s ixcercise revealed any fundamental flaws in the Plan.
Since the excercise did not test the ability of the traffic guides to perform their traffic control functions, there was no legitimate evidentiary basis for the finding (ID at 53) that the Plan was flawed, In that "It Inherently hampers response to unexpected events" by not permitting communications between traffic guides.
Similarly, with respect to lateral communications among field workers, Judge Frye observed in his dissent that, "itlhere simply is no Indication in this record that the plan requirement that field workers communicate only with their superiors , rather than with each other, in any way, hampered the response to the impediments." ID at 255. Judge Frye's assessment is correct. The majority opinien falls to explain how the conclusion that LlLCO's communication system is flawed was predicated on the excercise results. See ID at 251. Thus, a de novo review of communications was not supported by the record on exercise results.
- b. The Findings on Public Information (Contentions EX-38 and EX-39) Improperly Reevaluated the Adequacy of EBS Messages Applicant argues that the EBS messages were previously reviewed and found adeauate by the Licensing Board in the planning litigation.
LILCO Brief at 35. In the PID, the Board reviewed the EBS messages for credibility and for comparison of what Information was necessary in
<a the brochure. 21 NRC 698, 769. There the Board found Intervenors' criticisms of the EBS messeges to be "bald, unsupported assertions" and
i did not find that these specific assertions "would be a bar to proper belief and response in an emergency." y,at698, in light of these findings, Applicant is correct that the issue as to
, what should be In- EBS messages versus the brochure, has already been litigated, a fact the Board in this proceeding acknowledged in its decision a
(ID at 163-164). Nothing in the exercise results indicated that OL-3 Board's conclusion was inappropriate. in addition, as noted, in section B.2.a(3), supra, the Board erred in its determination that EBS messages were inaccurate or inconsistent because the OL-3 Board had previously determined the information in question properly belonged in a brochure, not an EBS message, and the results of the exercise disclosed no reason to disturb that finding.
- 2. The Board improperly Reevaluated the LERO Scheme of Relvino on the Regular LILCO Employees Applicant's arnument that the Board based its findings on LERO's training program on an improper characterization of the organization as i composed of amateurs is unfounded. See LILCO Brief at 61-62. The i
Board did express concern that LERO personnel "do not routinely perform emergency functions to which they are assigned under the LILCO Plan."
ID at 173. EI However, the Board did not rety on this assessment for its findings.
19/ In the PID considering the Plan, the Board found that less than half
. of 1.lLCO's LERO workers have Job skills at LILCO that match the skills required in their LERO jobs, and that signifiantly more than half of them need tralning in skills in which they have no prior
. experience. 21 NRC 544, 747. Hence, the Board was merely reiterating a concern expressed earlier in connection with the evaluation of the Plan. See PID, 21 NRC at 747
The problema which surfaced during the exercise which led FEMA to assess deficiencies in the implementation of the Plan were not inherent in the composition of the LERO organization. Rather, their problems in
. communication and ~ mobilization (which continued to plague drills following the exercisc) were due to lack of sufficient training in the utilization of procedures under the Plan. As the Board found, although the training program conducts quarterly drills, because of the sheer size of LERO, Individuals receive training only annually. ID at 248: see Tr. 5725.
Although the intermittent nature of the training program has proven somewhat insuff!clent to train LERO personnel to implement the Plan, the Board failed to apply the standards in CLl-86-13 and its ultimate finding ,
that the training program constitute a fundamental flaw in Plan is in error.
Applicant argues that the Board improperly relied on two areas of
.. Iritervenors' testimony which the Board originally struck, but later admitted "to the extent that it raises matters revealed by the exercise which bear on the efficacy of the training program." LILCO Brief at 44.
These areas dealt with the organizational structure of LERO, and addressed issues that were previously litloated. See PID, 21 NRC at 745-07 First, Applicant correctly takes exception to the Licensing Board conclusion on Contention EX-41E that:
It may be difficult for LILCO to cure this fundamental flaw lin
+ communications among personnel at the EOC and in the ficidl because of the training and experience of the personnel used to implement the Plan. As emergency workers, LILCO personnel are amateurs; this fact may be the root cause of the communication problems. White both FEMA and Impell call for morc and better training in the area of communication, it is
l T t questionable whether utility personnel can ever achieve the level of performance that professional emergency workers, such as the police, display.
ID at 63. The decision in the planning hearing focused on precisely this
- issue and stateci that it was "unnecessary for the Board to decide the relative qualifications of policy and LERO workers." PlD, 21 NRC at 749.
The Board further found that no LERO jobs were "so complex that they require training or experience beyond that called for in the Plan." I d_ .
at 750. The Board was incorrect to revisit this issue and improperly speculated that the performance of the LERO workers might compare unfavorebly with that of police. This finding is also unnecessary given -
that the new rule.10 C.F.R. I 50.47(c)(1), requires recognition that, in [
i reality, state and local authorities, including the police, would respond to an emergency situation using their "best efforts." Thus, the comparison between their performance and LERO workers performing the same functions is only relevant to the extent that such best efforts compensate ,
for plan implementation deficiencies.
Second, Applicant argues the Board improperly revisited matters concerning the structure of the organization of LERO, especially concerning communications. LILCO Brief at 46. As noted above in section IV.D.1(a), infra, this issue was not before the Board concerning l
the emergency planning exercise and was fully addressed in the PID and was not open to reconsideration in this proceeding . See 21 NRC at 725-44.
l t
t
- 3. The Board Useci the Wrong Standard to Assess LILCO's Ability to implement the Traffic Control Plan (Contention EX-40 --
Staffing Traffic Control Posts) i
- a. Exercise Results '
. On ' appeal,' Lit.CO has argued that the Board erred by (1) falling to f consider proffered evidence about the consequences of the tardy mobilization of traffic guides, and (2) relying on testimony about the adequacy of LILCO's traffic control strateales and the ability of LERO personnel to act as traffic guides. LILCO Brief at 23-26, 42-43.
Under LlLCO's offsisc emergency plan, the movement of evacuating traffic is er:pedited by traffic guides. LILCO Plan Appendix A, IV-5. ,
By deploying traffic concs and by using arm and hand signals, the culdes facilitate traffic flow along preferred routes designated by the Plan. PID, 21 N.R.C. at 791. While the Plan does not specify a time at which the Traffic Guldes must arrive at their posts, LILCO witnesses testified that they must be in place at the onset of traffic congestion in order to affect the speed at which the EPZ is evacuated. LILCO EX-40 Testimony, ff. Tr. 1548, at 6 (Weismantle, Lieberman) . Traffic congestlore is estimated to occur one hour after the evacuation recommendation is given. M. at 7-8. EI 20/ Applying this standard, LILCO 'ormulated two sets of evacuation
~
times depending on whether tradfic guides are able to expedite
. traffic flow, in a "controlled" evacuation, that is, one in which the guides are mobilized in time to affect the evacuation time, LILCO estimated evacuation of the EPZ to take 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> 55 minutes. For an
- "uncontrolled" evacuation, that is one which is not expedited by traffic guides, evacuation of the EPZ was estimated to take 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> 30 minutes. LILCO EX-40 Testimony, ff. Tr 1548, at 6, 8. ;
On the day of the exercise, LILCO mobilized its full complement of 165 traffic guldes. M. at 3. Thus, as LILCO acknowledged, the exercise provided a literal and accurate picture of its ability to mcbilize
, traffic guides in time to expedite evacuation of the EPZ. M. at 3-4.
Pursuant to LlLCO's Plan, the guides reported to three staging areas a
where they were given briefings, dosimeters and Kl (potassium lodide) _
tablets. After the order to evacuate was given, the guides obtained post assignments and traffic control equipment before travelling to their designated posts. M.at5.
For the purpose of evaluating the performance of the traffic guides during the exercise, the Board adopted the standard which had been proposed by LILCO -- whether mobilization was accomplished in time to achelve a "controlled" evacuation. ID at 84. Applylna that standard, the Board concluded that mobilration had been timely from only cr'e of three staging areas, causing large numbers of the traffic control posts to remain vacant until well after the expected onset of traffic congestion.
ID at 84, 86. Based on that performance, the Board found that a "controlled" evacuation would probably not have been acheived, and that a fundamental flaw had been derronstrated. ID at 86.
In reaching that conclusion, however, the Board failed to consider whether LILCO's inability to mobilize the tratfic guides in time to achieve a "controlled" evacuation would have any effect on the public health and safety. ID at 85-86. Instead, the Board specifically declined to rule on evidence submitted by LILCO which detailed the consequences of an
. "uncontrolled" evacuation after explaining "we (cannot) accept LILCO's invitation to consider whether the delay would have had a significant
effect on public health and safety." M. at 86-87 n. 23. In light of the l Commission's decisions in CLI-86-13 and CLl-86-11, this was clearly "
erroneous, g The' ouest!'on ~of whether LILCO's plan would adecuately protect the public health and safety even if LERO traffic guides were unabla to expedite evacuation was specifically addressed by the Commission in ,
C LI-8 6-13. After noting that the evidence revealed that evacuation would be delayed from one and one-half to three hours without traffic controls, the Commission determined that the pertinent question was whether that i
delay would eliminate evacuation as a viable protective action under some scenarios. CLl-86-13, 22 NRC at 31. In order to answer that question, ;
the case was remanded for further factual proceedinos before the OL-3 Board. Id. at 31-32.
Thus, the Commission established in CLl-86-13 that LILCO's tardy mobilization of traffic guldes would only demonstrate a failure to provide
- adequate protective measures for the public if the impact on evacuation of i
the EPZ was so significant that it would foreciese that option as a viable protective action. Additionally, in CLl-86-11, the Commission explicitly stated that fundamental flav > findings must be premised on deficiencies f
{
which would preclude a finding that adequate protective measures can and will he taken in the event of a radiological emergency. 23 NRC at 561. -
Accordingly, the Board below committed error in finding that a fundamental flaw had been demonstrated by LILCO's inability to timely !
l l i
I i
I
, l
- staff traffic control posts without even considering the impact, if any, on the health and safety of the public. b As the Commission observed in CLl-86-13, the pertinent question is
- whether any res'ulting increase in evacuation time would preclude evacua-tion as a viable protective action. 24 NPC at 31. This determination ;
must be made assuming that the State and County will assist LILCO in !
carrying out its plan by exercising their "best efforts". Id. Since this 2_2,/
issue will be addressed in the OL-3 proceeding, the Board's fundamental flaw finding in the Initial Decision should be reversed. f
- b. The Board's consideration of testimony on !
the adequacy of the Traffic Control Plan 4
was harmless error :
Curing this proceeding, LILCO moved to strike portions of written testimony of Suffolk County police officers on that basis that it revisited an issue which had been finally adjudicated by the OL-3 Licensing Board, the adequacy of LILCO's traffic control plan. "LILCO's Motion to Strike Portions of Suffolk County's Testimony on Contention E X-4 0, " dated March 5 1987. Among other things, LILCO objected to testimony about ,
I the adequacy of the traffic control strategies and techniques employed {
under its emergency plan. g.at4-6. The Board, after acknowledging 21/ As discussed earlier, the new rule enables the NRC to presume that state and local governments will exercise their best efferts to protect the public health and safety. 10 C.F.R, 5 50.47(c)(1), in light of the substantial resources available to the State and local governments ,
in this proceedinD, it would appear that any traffic guide staffing ;
problems could be sufficiently remedied by a "best effort" response.
i 22/ "Memorandum (Ey, tension of Doard's Ruling and Opinion on LlLCO Summary Disposition Motions of Legal Authority (Raialism) Contentions and Guidance to Parties on New Rule 10 C.F.R. 50.4?(c)(1))" at 26. l 1
l l
i
that some of the testimony specified by LILCO contained allusions to ,
matters which were previously litigated, admitted it as background l Information necessary to understand the County's position. T r. 1003-04 In its decision; the Board noted some of the background testimony in l
- its discussion of Suffolk County's arguments. ID at 76-82. The Board ;
did not, however, rely upon that evidence in reaching the conclusion that LILCO's performance demonstated a fundamental flaw. From the Board's t
discussion of the issue, it is apparent that the fundamental flaw finding !
was premised on LILCO's actual performance during the exercise, in j essence, the Board found that the traffic guides in the exercise were not timely mobilized under the standard proposed by LILCO -- one hour i
following the evacuation recommendation. ID at 71-72, 84. Rather than
! i rely on Suffolk County testimony in reaching that conclusion, the Board only used it to buttress the mobilization standard by which LlLCO's ;
performance was judged. ID at 87. Since the standard had beer.
proposed by LILCO, the Board's acceptance of Suffolk County testimony ;
i for that limited purpose is not reversible error.
- 4. The Poord's Review of the Adequacy of the Training Program ,
! was Error i ,
j LILCO argues that the Board improperly construed the decision in ,
the planning litigation as granting it unlimited jurisdiction over training f
! Issues. LlLCO Brief at 49. LlLCO states that confirmation of the [
adequacy of LILCO's training program was solely within FE,YA's ambit and also relles on the Frye dissent to support its claim that the Board could i not reach a conclusion as to the adecuacy of the training program. Id.
1 While all aspects of the training program in the Plan were not open for '
i
litigation, the adequacy of tralning, as reflected by the exercise results concerning Plan implementation, was a proper issue in this proceeding. ,
The Board noted that the previous decision by the OL-3 Board on
. the exercise coricidded that the LlLCO Plan met the regulatory standards, but stated that the O L-3 Board's conclusion '"I s made subject to confirmation by a finding, to be made by FEMA after a graded exerciso, that the Plan can be satisfactorily implemented with the training program 4
submitted and that LILCO possesses an adeauate number of LERO workers."' ID at 172, cuoting, PID, 21 NRC at 756. As a result, the Doord concluded that the adequacy of LILCO's training program was left open and subject to test in the exercise, M. i The FEMA Report on the exercise did not evaluate the adequacy of
- LILCO's training program (Tr.. 8296-97, Kowleski), nor was it an issue addressed by the exercise (Tr. 8286, Keller). Similarly, as Judge Frye states in bis dissent, This proceeding Is not concerned with whether the LILCO 4 training program meets each aspect of the regulatory standard.
That issue was addressed in the PID, where that program wes l found to be adequate subject to confirmation by FEMA. The
- condition imposed in the PID that FEMA verify that the Plan can ,
! be satisfactorily implemented with the existing training program i remains in full force and effect: FEMA's failure to make such a f
. finding does not dictate that we take that responsibility on ourselves.
1 l ID at 257 j .
Pence, the Board exceeded its mandate in reviewing the training [
program for adequacy. The proper inquiry before this Beard was
, whether the exercise revealed any deficiencies in training that would Impact decisionmaking and protective action recommendation and would eliminate evacuation as a slable action. CLI-86-13, 24 NRC at 31, i 4
The ability of certain Individuals to effectively implement the Plan is properly within the scope nf any inquiry as to fundamental flows.
However, applying the standard in CLl-86-11 and CLl-86-13, the Issue in
- i. this exercise proceeding was not whether "flaws specified in the bases .
occurred in the exercise and if so whether they collectively point to a fundamentally defielent training program" (PHC Order at 30). The issue was whether the deficiencies would preclude a range of adequate pr otective measures under the Plan, By not addressing the standards in CLI-86-13, the Board's failure to consider the Impect of performance errors on the public health and safety was error, D. The Board's Fundamental Flaws Findings Were Not All Supported By Substantial Evidence i
1 No Substantial Evidence Of Flaws in Communication
System Design
- a. Communications Within LERO in its initial Decision, the Board found that LILCO's responses to the roadway Impediments introduced by F EM A's free-play messages revealed the following deficiencies in LILCO's Communication System:
(1) the Evacuation Route Coordinator ("ERC") did not Inform his superior or coworkers of the traffic impediments on receipt of the free play I messeces: (2) the information transmitted by the ERC to the Route r
l Spotters was incomplete; and (3) the ERC's inauiry to the Staging Area about whether a Route Spotter had been dispatched should have contained additional information. ID at 48-50. On the basis of those deficiencies, the Board concluded that LILCO's overall communication system was !
I' fundamentally flawed. ID at 53. Specifically, the Board stated that fundamental flaws in communication were demonstrated within the EOC in 1
that the ERC's performance was deficient, and also among the field -
workers !n that lateral communication between them was not permitted.
' ID at 251. The Board's conclusions are erroneous.
e The~ communica~ tion breakdowns found by the Board occurred between the ERC and his superior, the ERC and his coworkers, and the ERC and a
the Staging Area. Regardless of how ineffective that communication was, the fact remains that the ERC was not following the approved vertical ar:d horizontal lines of communication in each instance. This fact was noted by the Board itself early in its decision. ID at 21-22. While describing the LERO organization, the Board noted that the ERC communicates with his coworkers at the EOC (the Road Logistics Coordinator and the Traffic Control Point Coordinator), his superior. (the Traffic Control Coordinator) and the Staging Arec (the Evacuation Support Communicator for Route Spotters) . M.
Thus, the problem was not that there was a failure of the system to provide for certain lines of communication, but that certain lines of communication were not used effectively. The ERC's ineffective communication cannot reasonably he attributed to the design of LILCO's communication system. Indeed, the FEMA findings cited by the Board to support its position primarily recommended that communication along established pathways be improved. See ID at 43-44, quoting FEMA Ex.1 at 39, 41, 42.
The Board's conclusion that LILCO's communication system is flawed because it does not permit communication between field workers is even more attenuated. As Judge Frye observed in his dissent, The communications breakdowns all occurred within the EOC.
Once the problems which resulted from those breakdowns were
t overcome, LERO's response to the impediments was adequate.
There simply is no indication in this record that the plan requirement that field workers communicate only with their superiors , rather than with each other, in any way hampered the response to the impediments.
ID at 255. Judge ~ Frye's assessment is correct. The majority opinion falls to explain how the conclusion that LILCO's communication system is flawed was predicated on the excercise results. See ID at 251. Thus, the finding was not supported by the record,
- b. ENC Communications The Board was incorrect in its findings regarding ENC communica-tions. As discussed in section IV.B.2(a), supra, the elements that the Board termed "communication" failures were tied to a breakdown of equipment, statements at press conferences, and a lack of information in EBS messages. None of these elements considered by the Board, however, related to the communication difficulties experienced at the EOC or between the EOC and field workers.
Thus, the Board erred in its determination that the isolated problems experienced at the ENC on the day of the exercise formed part of the integral elements that support a finding that the communications system is fundamentally flawed.
- 2. No Substantial Evidence That Communication Problems Reflected Fundamental Flaws in implementation of Training The Board specifically found that communication difficulties experienced the day of the exercise were due to the fact that "training
- for , and execution of internal communications within the LERO command
(
structure and betweers that structure and field personnel in response to l
unexpected events" was deficient. ID at 250. Hence, the Board found l
that the "failure to communicate accurate and complete information about l
[
roadway impediments not only during the Febuary 13, 1986 Exercise," but also during subsequent d rills, strongly suggested that the training program is inadequate in that it failed to teach LERO personnel how to
. Improve their pdrfdrmance. ID at 215.
The Board was correct in its determination that recurring problems In communication suggests that the implementation of the training program has failed to teach personnel how to effec'avely utilize the system that is in place. However, the Board again failed to apply CLl-86-13 and improperly assessed the training program against a standard which did not encompass tha essential elements to find a fundamental flaw.
E. The Board's Rollance on Post-Exercise Reports To Assess the Training Program Was Not Reversible Error Appilcant argues that the Board frequently relied on material from training drills conducted by LILCO following the February 13, 1986 exercise in reaching its determination that the training program was fundamentally flawed. LILCO Brief at 46. Applicant maintains that this was improper because (1) it contradicts the mandate in CLl-86-11 that fundamental flaw determinations must be hosed on exercise results; (2) the drill reports were not comparable to results from a FEMA-graded exercise and therefore not probative of any flaws in the training program; and (3) the Board used oniv selective portions of the reports for its determination and did not make a searching review of these materials.
e in CLI-86-11, the Commission once again emphasized the predictive nature of emergency planning finding , and specifically stated that "staff review of exercise results is consistent with the predictive nature of emergency planning, and is restricted to determining if the exercise
revealed any deficiencies which preclude a finding of reasonable assurance that protective measures can and will be taken, i.e., fundamental flaws in the plan." 23 NRC 577, 581 (1986). To the extent post-exercise drill
~
e reports 'show that problems which occurred on the day of exercise were not minor or g hoc, but had reoccurred over time, these drill reports are probative as to whether a flaw exists in the program. This is in keeping v. ith the predictive nature of emergency planning specifically cited by the Commission in CLI-86-11.
The additional evidence from post-exercise drills is similar to evidence introduced in connection with whether QA/QC programs have been effective, in Byron, the Appeal Board remanded the denial of a Ucense for that facility to the Licensing Board to permit the "full exploration of the significance of the (reinspectioni program in terms of whether there is currently reasonable assurance that the Dyron facility has been properly constructed." Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 7), A LA B-770, 19 NRC 1163, 1178 (1984). Evidence of :ater performance is probative of whether a QA/QC program has worked appropriately. Similarly, evidence from subsequent exercise drills is probative of whether the training program has worked.
The probative value of the drill reports (or reinspection remits in the case of QA/QC) should not be limited solely to instances where the reports are fasorable to the Applicant. The results may also be used to show that a pattern of breakdown may have occurred in a trainino e
program.
As to LILCO's complaint that the Board used the drill reports selectively (LILCO Brief at 48), the Appeal Boa rd , in addressing the
admission of a vast number of audit reports in the safety phase of the Shoreham proceeding , agreed that the licensing board was "entitled to limit the evidentiary material to those portions of the audit reports that
. were genuinely' the subject of controversy." Long Island Lightina Co.
(Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102,1154
+
(1984), in the instant case, the Board utilized those portions of the post-exercise drill reports that related to those matters alleged deficient in the exercise, the matters at controversy in the proceeding.
Accordingly, the Board's admission of the post-exercise drill reports was correct and the Board properly considered the results of these drills in assessing whether the problems evidenced on the day of the exercise were minor or ad hoc, or whether they demonstrated a pervasive failure of the training program to teach LERO personnel to implement the plan.
E. The Sufficiency And Clarity Of The Rationale Stated in The initial Decision
- 1. The Board Articulated its Rationale for Finding Fundamental Flaws in Rumor Control and Training with Sufficient Clarity LILCO argues that the Board failed to explain the grounds upon which fundamental flaws were found in training and rumor control with sufficient clarity. LILCO Brief at 63-69. The only examples cited by LILCO are the findings of a fundamental flaw with regard to Rumor Control (Contention EX-39) and Training (Contention EX-50. A , .8, .E and .F). g.
It is true that licensing boards must not only resolve contested e
issues but also articulate the grounds for all rulings in reasonable detail.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), A LA D-422, 6 NRC 33, (1977), affirmed CLi-78-1, 7 NRC 1 (1978),
1 affirmed sub nom, , New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir.1978). Boards are not, however, required to refer individually to every proposed finding. g. As long as rulings on
, contested issues a~e explained in sufficient detail that the parties, and the Appeal Board can discern the foundation underlying them, the cecision is adequate. Northern States Power Co. (Pralrie Island Nuclear Cencrating Plant, Units 1 and 2), A LA B-104, 6 AEC 179 n. 2 (1973).
Under the foregoing standard, the initial Decision adcouately explains the grounds on which fundamental flaws were found in LILCO's plan with respect to rumor control and training. As for Rumor Control (Contention EX-36) . the Board explicitly stated that its fundamental flaw finding was premised on the fact that LERO personnel at the Call Boards and District Offices were not kept advised of the current emergency response recommendations. ID at 138. Although that particular statement was not explained any further, it followed a discussion, which spanned nearly 15 pages, of how LILCO's public information system functioned during the exercise. ID at 123-138. In the course of that discussion, the Board observed that the media could aid in ensuring an orderly pub!!c response if provided with clear, accurate, and timely information.
M . at 126. On the other hand, the Board determined that the influence of the media would be neutral or even detrimental to an orderly evacuation if that information was not provided. M. Consequently, the Board determined that 10 C.F.R. 6 50.47 (b)(7) called for the establishment of coordinated dissemination of information to the public.
g at 126-127 l
In the context of that discussion, it is apparent that the Board based its fundamental flaw finding upon a determination that the provision of timely information to the media is an essential element of the regulatory
. requirements. As explained in section IVB(2)(a), supra, this conclusion was based upon a misunderstanding of the role of rumor control, and of the media in general, in emergency planning. More importantly, the Board's conclusion resulted from the failure to evaluate the exercise results using the proper legal standard. Thus the decision, while ,
explained in sufficient detall, was erroneous.
With regard to Training (Contention EX-50), the Board devoted more than 75 pages to a detailed discussion of the positions adopted by each of the parties, the performance of LERO personnel on the day of the At the outset, the Board exercise, and its conclusions. M. at 172-251.
explained that it would examine the performance of LERO workers during the exercise in order to determine whether any systemic training deficiencies were demonstrated. Id. at 179. On the basis of exercise events, the Board found that LILCO had not adequately trained its personnel to communicate effectively with each other, to understand their assigned functions, or to promptly carry out their emergency tasks. Id.
at 250-51. In making this finding, however, the Board applied the wrong standard for determining whether there was a fundamerdal flaw in the Plan. This finding should be reversed and corrected on appeal. See section IV.B.2(b), supra.
- 2. The Board's Reasons for its Conclusion as to the Adequacy of the Structure of Communications Were Not Based on the Correct Standard The Board's conclusions about the design of LILCO's communication I
system lacked sufficient factual support and were not based on the l
s fundamental flaw standard. While the Board delineated its reasons for finding that the ERC's performance was inadequate, it failed to explain its conclusion that LILCO's communication system was defective. Moreover, o the Board failed to cite substantial evidence to support that conclus!on.
See ID at 53.
Within the EOC, the communication problems identified by the Board were caused by the poor performance of a single individual. LILCO Brief at 48-49, 51. After pointing out those problems, the Board simply concluded that they demcnstrated a fundamental flaw in the plan. ID at
- 50. One can only speculate how that connection was mado. The Board's failure to adequately articulate its rationale for finding LILCO's communication system at the EOC fundamentally flawed violates the fundamental principle of administrative law that an agency must clearly disclose the grounds upon which it acts. Seabrook, ALAB-422, 6 NRC at 41.
The Board's finding that LI LCO's plan was fundamentally flawed because it does not permit lateral communication between fleid workers was epparantly premised upon a determination that traffic guides must be able to communicate with each other. See ID at 52-53. Nowhere in its decision, however, does the Board explain how that determination is predicated on the performance of LERO personnel during the excercise.
The Boerd did not find any delay in protective action decisionmaking, nor did it find that any protective action was foreclosed. Instead, the Board arrived at the sweeping conclusion that LILCO's communication system "inherently hampers response to unexpected events" (ID at 53) after finding that the excerciso demonstrated thst traffic guides would need to l
communicate with each other in order to engage in problem solving (ID at
52). The Board does not connect this observation, however, with an explan? tion of the relevance of these facts to the exercise where none of the traffic guides attempted to actually guide traffic , and where no e fundamental flaw in the plan was evident by LILCO's traffic rerouting scheme. See ID at 58. Again, the Board's failure to articulate the reasoning and factual bases for its conclusion constitutes error and is grounds for reversal.
IV. CONCLUSION For the reasons discussed in the foregoing section, the Staff supports the instant a ppeal . The Staff supports LILCO's reauest that the initial Decision be vacated in those areas where the Poard found fundamental flaws existed. See LILCO Brief at 68-69. The Board's erroneous findings were the result of the Board exceeding its authority, falling to adeouately articulate its decision, and, more importantly, applying an improper standard for finding fundamental flews in the Plan, in light of the issuance of the Realism Rule, the Appeal Board should apply CLI-86-13 and find that the exercise events did not reveal fundamental flaws.
Respectfully submitted, Mitzi . oung Counse for NRC Staff
$4 Lisa B. Clark
'* Counsel for NRC Staff Dated at Rockville, Maryland this 28th day of April,1988
00CKETED USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '88 MAY -3 P6 :32 BEFORE THE ATOMIC SAFETY AND LICENSING A_PPEAL BOkfifn hfjEp,'
BRANCH e
in the Matter of- )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
CERTIFICATE OF SERVICE i hereby certify that copies of "NRC STAFF RESPONSE TO LILCO APPEAL OF THE FEBRUARY 1, 1988 INITIAL DECISION ON THE EMERCENCY PLAN EXERCISE" in the above-captioned proceeding have been served on the following by deposit in the United States mall, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 28th day April 1988.
Christine N. Kohl, Chairman
- Joel Blau, Esq.
Admir.lstrative Judge Director, Utility intervention Atomic Safety and Licensing Appeal Suite 1020 Board 99 Washington Avenue U.S. Nuclear Regulatory Commission Albany, NY 12210 Washington, DC 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, NY 12224 Washington, DC 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, NY 12223 9 Washington, DC 20555 o Philip McIntire W. Taylor Reveley til, Esq.
Federal Emergency Management Donald P. Irwin, Esq.
Agency Hunton f, Williems 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212 l
/ Stephen B. Latham, Esq. Herbert H. Brown, Esq.
Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.
Attorneys at Law Karla J. Letsche, Esq.
33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1800 M Street, NW Atomic Safety and,Ligensing* Washington, DC 20036-5891 a Board Panel U.S. Naclear Regulatory Commission Jay Dunkleberger Washington, DC 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 Washington, DC 20555 Spence W. Perry, Esq.
Martin Bradley Ashare, 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, DC 20472 Anthony F. Earley, Jr. Dr. W. Reed Johnson General Counsel 115 Falcon Drive, Colthurst Long Island Lighting Company Charlottesville, VA 22901 175 East Old Country Road Hicksville, NY 11801 Ms. Nora Bredes Shoreham Opponents Coalition Dr. Monroe Schneider 195 East Main Street North Shore Committee Smithtown, NY 11787 P.O. Box 231 Wading River, NY 11792 Barbara Newman Director Environmental Health William R. Cumming, Esq. Coalition for Safe Living Office of General Counsel Box 944 Federal Emergency Management Agency Huntington, New York 11743 500 C Street, SW Washington, DC 20472 Alfred L. Nardelli, Esq.
New York State Department of Law Dr. Robert Hoffman 120 Broadway Long Island Coalition for Safe Living Room 3-118 P.O. Box 1355 New York, NY 10271 Massapequa, NY 11758 Docketing and Service Section*
Office of the Secretary a U.S. Nuclear Regulatory Commission Washington, DC 20555
's
(
Mitz[ A./YoDncj Couristfl for NRC Staff
_ _ _ _ _