ML20153C157
| ML20153C157 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/12/1986 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#186-137 OL-3, NUDOCS 8602180314 | |
| Download: ML20153C157 (102) | |
Text
-
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Uh1TED STATES v NUCLEAR REGULATORY COMMISSION
- IN THE MATTER OF: DOCKET NO: '50-322-OL-3 LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit--1)
ORAL ARGUMENT c
LOCATION: BETHESDA, MARYLAND PAGES: 1 - 99 DATE: WEDNESDAY, FEBRUARY 12, 1986 4 dl
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UNITED STATES OF AMERICA
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\ 2 NUCLEAR REGULATORY. COMMISSION 3 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 4 - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x In the Matter of:~ :
5
- Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY :
6 :
(Shoreham Nuclear. Power Station, :
7 Unit 1)" :
g _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x ,
9 Nuclear Regulatory Commission Fifth Floor Hearing Room 4350 East-West Highway 10 Bethesda, Maryland il 11 il Wednesday, February 12, 1986
'l 12 ;i The oral argument in the above-entitled matter convened
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,3q at 9:00 a.m.
I BEFORE:
14 ,
i 15 ' ALAN S. ROSENTHAL, Chairman Atomic Safety and Licensing Appeal Board ;
16 U.S. Nuclear Regulatory Commission Washington, D. C.
17 !!
HOWARD A. WILBER, Member I I8 j! Atomic Safety and Licensing Appeal Board f
, U.S. Nuclear Regulatory Commission !
19 ' Washington, D. C. ;
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21 i t
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-- continued --
1
2 I APPEARANCES:
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On behalf of Long Island Lighting Company:
3 JAMES N. CHRISTMAN, ESQ.
Hunton & Williams 4
707 East Main Street P. O. Box 1535 5 Richmond, Virginia 23212.
6 On behalf of Suffolk County:
7
- KARLA J. LETSCHE, ESQ.
! LAWRENCE COE LANPHER, ESQ.
8l Kirkpatrick & Lockhart j 1900 M Street, N.W.
9' Washington, D. C. 20036 '
10 on behalf of the Nuclear Regulatory 11 l ~ Commission Staff:
!! EDWIN REIS, ESQ.
12 1i BERNARD BORDENICK, ESQ.
f-~g !: U.S. Nuclear Regulatory Commission
(,) - 13!! . Office of the Executive Legal Director 14 Washington, D. C. 20555 15 16 17 -
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2 JUDGE ROSENTHAL: Good morning, ladies and 3 gentlemen. This board is hearing oral argument this 4 morning on the various remaining appeals in the emergency 5 I planning phase of this license proceeding involving the l
6 j Shoreham Nuclear Power Station. The argument is governed i
7 by the terms of this board's January 21 order. I will 8 assume that all counsel taking part in the oral argument 9 are familiar with those terms, particularly in so far as 10 they relate to the order of presentation and to the time 11 allotments.
J 12 s As the secretary to the board's January 29 note 13 advised counsel s'ould be the case, Mr. Edles is not with us O
14 this morning. This is because he is serving at present as 15 the acting director of the Commission's office of inspector 16 and auditor. It is currently unclear when this assignment 17 will terminate. Should it terminate within a reasonable 18 l time, Mr. Edles will participate in the decision on the 19 basis of evidentiary records, the briefs of the parties and 20 the transcript of today's oral argument.
21 I will now ask counsel to identify themselves 22 formally for _the record, and we'll start with Ms. Letsche.
23 MS. LETSCHE: Karla Letsche with Kirkpatrick &
24 Lockhart, rer resenting Suf folk County.
25 JUDGE ROSENTHAL: I'm assuming that there's no 10
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25756.0 4 KSW-( ') - 1 one_present.this morning for either the State of New York 2 or the Town of Southampton; is that correct?
3 MS. LETSCHE: -Yes. My understanding is that the 4 weather yesterday l created major problems in terms of 5 transportation for them. I will be presenting argument on 6 behalf of the County and the State and the Town of 7- Southampton.
8 JUDGE ROSENTHAL: I take it, the weather 9 conditions to one side, that was the arrangement between 10 yourself and the counsel for the other Intervenors; is tha\
11! correct?
l 12 MS. LETSCHE: That's correct, but I think they 13 might have hoped to attend at least.
s_/
l 14 l JUDGE ROSENTHAL: One of the things, frankly, 15 that sort of surprised me was that after obtaining from 16 this board a postponement of the oral argument, because of 17 his unavailability on the date that the argument was 18 originally set, Mr. Palmino then elected not to participate 19 .in the argument. I had assumed, quite frankly, that he 20 would be participating based upon his request that the 21 argument be postponed. I realize that's not your 22 responsibility, but I would note for the record my surprise 23 when I received your letter, Ms. Letsche, advising that 24 Mr. Palmino would not be participating in the argument.
25 For the Applicants?
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1 MR. CHRISTMAN: I'm James N. Christman. I 2 represent the Applicant Long Island Lighting Company.
3 MR. BORDENICK: I'm Bernard M. Bordenick. I 4 represent the NRC Staff.
5 JUDGE ROSENTHAL: Mr. Bordenick. At two 6 occasions, the secretary to .the board contacted counsel to 7 advise them that the board wished them to be prepared to 8 discuss both ALAB 694 issued in September of 1982, in the 9 Summer operating license proceeding; and Suffolk County's 10 Exhibit EP-1. And we will ask counsel at the outset of 11 their argument to address 694 and more particularly the 12 question which the board regards as posed by 694, whether !
13 ; the Intervenors' appeal from the April and August decisions
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14 will lie, given.the fact that the Intervenors obtained the l
15 l result that they sought, even though a number of the l
16 li findings or conclusions reached by the board were not to 17 the Intervenors' liking. With that note, Ms. Letsche, 18 we'll start with you.
19 MS. LETSCHE: Good morning. I know that you 20 want to address those two issues that you had your 21 I secretary call us about first and I will do so, but I would 22 state at the outset what else it is I intend to do during 23 the argument since the time is limited and obviously, as 24 the board noted, many issues were raised in the briefs and 25 I will not address them all.
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1 I intend to cover two major subject areas.
2 First is the board's approval of several items in the face 3 ~ of an acknowledged' lack of planning on the record, which we 4 believe and our briefs demonstrate clearly violates the 5 post-TMI policy that an ad hoc response is unacceptable.
6 And I will discuss that licensing board error that was made 7 with respect to the schools issues, the evacuation of 8 hospitals and the ingestion pathway in the state of 9 Connecticut.
10 Secondly, I will address another major error by 11 the licensing board which was revealed in several I
12 particular issues, but in general it was the decision to 7s 13 bar Intervenors from submitting evidence at all on *
(). I 14 particular issues. With respect to that, I will discuss :
1 15 the ruling denying admission to Contention 22, the denial l' i
l 16 I of Intervenors' evidence on the role conflict issue, and if -
17 '
I have time, some of the matters with respect to relocation l
18 i center testimony.
- l 19 .
Going first to the board's question concerning 20 the applicability of ALAB 694 to Intervenors' appeals, the 21 icensing board's decision denying the operating license'is 22 based, as I read the concluding partial initial decision, 23 on its findings on LILCO's lack of legal authority. The 24 other deficiencies are identifiable as correctable or would 25 l be some kind of license conditions that apparently would be
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) l imposed by the licensing board. The legal authority' issues, 2 however, the board found made it impossible to make a 3 reasonable assurance finding with~ respect to the plan. We 4 believe that was the correct action and we believe the 5 Commissi- will also have to affirm it because it is 6 correct as a legal matter. However, it is on mpeal now 7 and the Commission has indicated that it will take review, 8 and --
9 JUDGE ROSENTHAL: What does that have.to do with 10 the question whether, given that the licensing board result 11 was in your favor, you are really not in a position here to 12 4 challenge the result? How can you appeal?
,_ 13 MS. LETSCHE: That's a very good question. The 14 li fact is . this licensing proceeding is continuing despite the 15 I fact that the operating license has been denied. For P
16 [ instance, there's an exercise going on tomorrow even though 17 l the license has been denied. So if that ultimate result 18 were in f act determinative of whether or not we had won the 19 case and had no basis to come to anyone for additional 20 l relief, then the cases would be over and we would not be 21 I having an exercise tomorrow.
22 JUDGE ROSENTHAL: Again, how does one appeal 23 form a favorable result? I recognize the result you 24 i obtained f rom the licensing board; we af firmed it. It has 25 not been reviewed as yet by the Commission, but we're now O
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() l looking at an appeal that you have taken to this-board from 2 a favorable licensing board result.
3 Now, the_ teachings of the prior appeal board 4 decisions are to the effect that one cannot appeal from a 5 favorable licensing board result, and you have endeavored 6 to do that. What the parties can do is difend a favorable 7 result before the licensing board on alternative grounds. ,
I 8 In other words, you could have come before us and argued in i
9 defense of.the Applicant's appeal that the result reached 1 1
10 by the licensing board was correct not only for the legal I 11 l authority reason that the licensing board assigned, but i
12 l also because, contrary to what the licensing board , ,
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' I
') 13 concluded, there were infirmities as a matter of fact in '
14 i this plan. That you could do. You could come up and. argue i
15 alternatively for. affirmance of the result on the grounds !i 16 l that the licensing board has not decided in your f avor. !
17 I The question here is how does one appeal, as you i 18 have endeavored to appeal, from a favorable result, 19 I favorable judgment, if you will, of the licensing board; i
20 and I have not heard your answer to that yet.
I 21 MS. LETSCHE: I have two answers. Number one, 22 l if the only result is the denial of the operating 23 proceeding, then the fact is this proceeding should be all 24 over and we should not have had to have appealed at all.
25 But the fact of the matter is that the licensing proceeding A
V ACE-FEDERAL REPORTERS, INC.
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25756.0 9 KSW is continuing and it has not been terminated and the
} l 2 Comnission is continuing to not only --
3 JUDGE ROSENTHAL: It was terminated before the 4 licensing board. It is always true that there are further 5 appellate remedies and one never knows how those will come 6 -out. But again, the jurisprudence is you cannot appeal to 7 an appellate tribunal from a favorable trial level decision, 8 and that's what you have endeavored to do.
9 MS. LETSCHE: What we're appealing, Judge 10 Rosenthal, is the rulings of the licensing board that were 11 not favorable to us.
12 JUDCE,ROSENTHAL: You can't do that under the
,_ 13 jurisprudence, Appeals do not lie from findings or
.(.'-) 14 conclusions. Appeals lie from judgments. That's the rule 15 : in the cour ts and that's the rule, which this board has 16 consistencly applied, as the Summer decision reflects.
I, 17 l MS. LETSCHE: I don't know what else to tell you l
18 other than that the proceeding, I agree with you, logically 19 '
doesn't follow because the entire thing should be over with 20 the denial of the license. However, Intervenors felt 21 strongly that because this whole proceeding had been 22 bifurcated and the legal issues were handled separately by 23 the whole appeal prccass, and since the denial of the 24 license was based solely upon that issue, which clearly was 25 going to be reviewed, that it was necessary to preserve our O
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- ) 1 rights by taking the appeal with respect to those-decisions 2 which were unfavorable to us, which, if the legal authority 3 issue were reversed, would result in the granting of a 4 license.
5 JUDGE ROSENTHAL: But you could have raised 6 those very claims that you have made under the umbrella of 7 i your appeal in defense of the Applicant's appeal from the ;
I 8 !
April decision, could you not have? ,
i 9
- MS. LETSCHE: You mean in response to their I
10 appeal of the legal authority issues? g ,
11 JUDGE ROSENTHAL: The rule is that the party is 12 k, always free to defend against an appeal on any ground that I i
, ,_s 13 l the record will support, whether or not that is a ground !
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that was decided in favor of that party by the trial l I -
l 15 l tribunal. That's elementary appellate law, nothing that we !
16 have invented. That's something which has been true in the 17
{ federal courts of appeals -- I dare say also in state 18 . appellate courts '--- since day one.
19 MS. LETSCHE: I gu.ess I can't say that wouldn't !
I 20 have been possible because of the way this entire 21 proceeding has been conducted. However, with a clear 22 bifurcation of the legal authority issues from the 23 remaining issues in the case, that didn't seem to make 24 l sense at all at the time.
I 25 JUDGE ROSENTHAL: Okay, we've heard you on this, rm I
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(~'3 1 I'm going to want both the Applicant and Staff counsel to q) 2 address this point because I'm rather surprised that 3 neither of them had raised it, that it had to be raised by 4 the board sua sponte.
5 Let's move on to your argument. Let me ask you 6 one sort of threshold question. Throughout your brief, 7 there are broad suggestions that the licensing board in 8l this instance, once it got beyond the legal authority issue, 9 which it decided in your favor, and we concluded correctly, 10 once it got past that where it was right on target, it did 11 absolutely nothing right. Absolutely every ruling that it 12 made was wrong. It had a double standard, we're told by 13 l you, that it accepted the testimony of unqual'fied, i or at I) 14 best semiqualified Staff and Applicant witnesses, whereas 15 l it consistently rejected the testimony of better qualified i
16 j witnesses that the Intervenors served up.
17 We're told that it rejected a late contention 18 that you people offered on timeliness grounds, whereas --
19 and I guess it was a Nassau Coliseum matter which the t
20 l Applicant put forth -- was even more untimely than your i
21 i endeavor was, and yet the licensing board found it timely; 22 and I find this very surprising that a board which, if 5e 23 read your orief, was either totally biased against your 24 client or incredibly stupid, could have seen the light in 25 your favor on this critical issue which led that board to k
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() 1 grant you the ultimate relief, i.e., a denial of the 2 operating license which it sought.
3 How do you explain this, that this board was so 4 right on this legal authority issue and then on absolutely-5 everything else was dead wrong?
6 MS. LETSCHE: Let me have a couple of answers.
7 There were a lot of questions in that statement of yours. .
8 First, the board was not absolutely wrong in absolutely f 9 everything. They made some findings which were correct.
10 They found lack of evidence and an inability to make 11 reasonable assurance findings with respect to certain 12 l issues. They were right on that.
I i
13 ; With respect to the acceptance of witnesses, I if'- l
- 14 lj think our brief is clear that in some areas the Staff --
- l 15 not necessarily Staff, but in some areas, LILCO and I 16 ! Intervenors had academic-type witnesses who were both well i
17 l qualified -- and I don't know that we suggest in our brief 18 j -- with a possible exception in reference to one of the 19 Staff witnesses, that incividuals were not necessarily 20 qualified to say what they said. However, with respect to 21 certain of our witnesses, in particular the Suffolk County 22 police officers whose job it is to deal day to day with 23 some of the very factual issues that were presented by the 24 board, we believe the board gave an improper distribution 25 of weight to evidence by accepting statements from people
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./N 1 who might academically have studied certain things but do G
2 not deal with them day to day, or by accepting, for 3 instance, Dr. Mileti's testimony about what teachers are 4 going to do rather than listen to teachers themselves.
5 In terms of how I can explain the board being 6 right on one issue and wrong on some others, I can't 7 . explain that. I can describe for you -- and I think we I
8 i have laid out fairly clearly in our briefs -- the specific 9 issues upon which the board was incorrect, the ways in 10- which it was incorrect and why it was incorrect.
11 Now, in terms *of the law and in terms of the 12 facts and the evidence which we think demonstrated should ,
13 have led to the ultimate result, why they came out the
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other way, I can't tell you.
15 We have not alleged in our brief that the basis 16 of our appeal certainly is not that the board was grossly 17 ; biased. We just believe they have come to a number of I
18 incorrect conclusions for the reasons we've stated.
19 l JUDGE ROSENTHAL: May I read from your brief, 20 page 2, "The decision is laden with errors. Some were 21 caused by the ASLB failure to interpret or apply 22 regulations correctly. Still others by the ASLB's 23 exclusion of relevant probative evidence." It wasn't 24 simply you were saying there were a few errors here and 25 there.
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l 25756.0 14 KSW 1 MS. LETSCHE: There were many, and what you read
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2 was the introduction to our brief in which we try to 3 summarize for you in a way that capsulizes all of the 4 errors that we address .in our brief, by lumping them into a 5 couple of areas which I think they fall into, and the fact 6 is, there were a lot of errors made. No doubt about that.
7 I'm not going to take back any of the arguments that we g
i 8 made. ;
9 JUDGE ROSENTHAL: You are not claiming bias, are 10 you?
11 MS. LETSCHE: The basis of our appeal -- we do l
12 1 not want you to find the board was biased. We want you to 13 find that the board made legal errors.
7-14 JUDGE ROSENTHAL: Through ingorance rather than '
15 through bias? I want to be totally clear as to whether you 16 are claiming that this board applied a double standard.
l 17 MS. LETSCHE: With respect to some issues a 18 double standard was applied.
l 19' JUDGE ROSENTHAL: If they did that, that must 20 l have been because they had some preference for the 21 Applicants and/or the Staff, is it not?
22 MS. LETSCHE: I can't characterize what 23 preferences the board might have had. All I have before me 24 is their rulings and I can look at those and look at the 25 law and the evidence and reach the conclusion which we O
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25756.0 15 KSW l stated here that it is wrong, and when they reach one
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2 conclusion on one set of facts that goes one way and an l
3 opposite conclusion with a set of facts which would appear 4 should have led to the same result, that there's as a 5 factual matter a double standard being applied. Why that-6 was applied in a particular area I'm not going to speculate 7 about and I don't think we make allegations about it in our 8 brief. What we talk about is the legal standards that 9 should have been applied, the facts and evidence before the 10 board and the conclusion that the board reached.
11 JUDGE ROSENTHAL: So the record is absolutely 12 clear on this, you are not claiming that the board was 13 prejudiced against your client. Am I correct about that?
O 14 MS. LETSCHE: We don't allege that in our brief, 15 l no.
I 16 JUDGE ROSENTHAL: There's no claim of bias or 17 prejudice being made by the Intervenors on the part of the 18 board?
19 ! MS. LETSCHE: The errors we allege are set forth 20 and that is that wrong declaions were made with respect to 21 the facts and the legal standards. You indicated you also 22 wanted us to address the second item at the outset --
23 JUDGE ROSENTHAL: It can be -- if you are going 24 to talk about role conflict you can; in the course of 25 discussing it you can get to this exhibit. I might say at ACE FEDERAL REPORTERS, INC.
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25756.0 16 KSW I this point that I can't make head or tails out of it. I (J~)
2 have read the explanation that was given by this witness.
3 Even with that explanation this document to me is worthless, 4 ,
and I can readily understand why both Intervenors, and I 5 think it was the Staff, maybe ,it was the Applicant as well, I
6 l tookthispieceofgaperandreacneddiametricallyopposing 7 conclusions as to what it demonstrated. But I was ;
8 i sufficiently puzzled by it that I thought I would call upon 9 the parties to help me in deciphering it and maybe come to 10 a conclusion as to whether it really stands for something.
l 11 ! MS. LETSCHE: It is the Intervenors' position 12 that it is not entitled to very much weight, because if you 13 have read the transcript you can see the way this f~)# l 14 information was arrived at was not sort of your -
l 15 conventional social science survey methods. A number of '
16 interviews were conducted which consisted of one question, 17 l "Where were you and what did you do when the emergency l i
18 happened?" Lots of transcripts were made of discussions l I 19 i following that question, and at a later time somebody 20 decided to listen to the transcripts and created this chart 21 and put in numbers based on how they reviewed those 22 transcripts. That was not Dr. Dynes who testified and who 23 made those decisions, and for that reason the Intervenors 24 said in their proposed findings of the fact that it is not 25 entitled to much weight one way or the other.
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2 proposed findings, the Applicant relies heavily on this 3 because you always hear about the design research --
4 disaster research center's extensive study of 6000 5 interviews of emergency workers and how it shows that role 6 conflict is not an issue, that role conflict does not 7 happen. There are these very flat statements, it does not 8 exist, and they rely upon this one unpublished paper which 9 is a paper, Number 49, in which Suffolk County Exhibit 10 Number 1 appears for that statement that role conflict is 11 not a problem.
12 Well, when you look even at the only piece of 13 evidence they rely on for that proposition, it is clear 14 that it doesn't even support it, and the chart itself, 15 which I assume you have before you, is difficult to 16 understand, but I'll give you the one clue that makes it a I
17 j little clearer. The headings that are across the top of 18 the chart do not apply all the way down the chart. In 19 order to read the chart you have to -- in order to read a 20 particular row of numbers you have to relate them to the 21 ; column of words that immediately precedes them, rather than 22 going all the way to the top. That means, for instance, in 23 the second row which is listed "at home," where you have 24 the number 40 and it goes all the way across, the number 13 25 applies to a decision by the 40 workers or 13 workers here, O
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U I that they would do something, they would either stay on the 2 job or do something on the job.
3 I have never understood the distinction between 4 staying on the job and being on the job myself,-but the 5 column that applies to that number 13 is the one 6 immediately on top which, when you keep gofng over to the 7 right, the number 13 which -- the " waited on notification" t
' i 8 applies to the 13, rather than the " temporarily left job." i 9 The temporarily left job only applies to the 7, which is 10 immediately below that. 13 and 14 in the second row are 11 related to the immediately preceding headings.
12 When you look at the entire chart, the numbers l
13 I that relate to whether or not there was some kind of '
O l 14 nonreporting or delayed reporting activity, you look at the '
15 ! columns that are headed under " active response to family ,
I 16 I then work," which means they did something with their 17 l family before going to work. You look at the column which !
I 18 says " delayed reporting," because in that column the people 19 ! did not report when they were immediately called. You also 1
20 ! look at the column which says " abandoned occupational role" l
21 or " temporarily left job" if there is not a heading that's 22 immediately in front of that.
23 i The bottom line, and I have to agree that this 24 is very unclear, is that when you look at the categories of 25 people who are described as having done something other ACE FEDERAL REPORTERS, INC.
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1 than report to their job right away, you get in every 2 single box a situation of a substantial percentage of 3 people who did not immediately report to their job, and 4 that's the only point that the Intervenors made, 5 affirmative point, with respect to this exhibit, which is 6 you can't cite this to support the proposition that l
7 '
emergency workers are not going to have some other conflict 8 l that will keep them f rom reporting immediately to their !
l emergency work.
9l 10 f JUDGE ROSENTHAL: You endeavored to adduce l
11 ; evidence respecting volunteer firemen; is that correct?
12 l MS. LETSCHE: Yes, Judge. There were a couple i 6 13 l of pieces of evidence which Intervenors submitted which l
? s
--> 14 were denied admission on the role conflict issue. One was 15 ; an extensive survey by Steven Cole, one of our witnessen 1
16 l who did the other surveys which were admitted into evidence.
17 j It was a standardized survey set up in the normal way that 18 1 sociologists do these things, and endeavored to find out l
19 !, what these people would do in the event of a Shoreham is 20 l emergency.
1 21 ; That evidence Erom Dr. Cole which described in 22 detail the survey and the results, and also some testimony 23 by Drs. Erickson and Johnson which discussed the 24 applicability of those survey results to the individual 25 i workers that LILCO was intending to rely on in its plan
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25756.0 20 KSW l were all denied admission by the licensing board without 2 any discussion other than the statement that it was 3 irrelevant.
4 JUDGE ROSENTHAL: Irrelevant because there were 5 no volunteer firemen involved in the --
6 MS. LETSCHE: I don't know. They did not say 7 why it was irrelevant. It had been alleged by LILCO and 8 the NRC Staff that that was the reason, because there were 9 not volunteer firemen involved in the plan, but I don't 10 know why the licensing board decided it was irrelevant.
11 The fact is, though, that LILCO relies very heavily, as 12 l does the licensing board in its decision,, on this theory l
13 i that a trained emergency worker is not going to have a O 14 problem irnmediately reporting to his job if there's an 15 emergency, because he's been trained so well. ,
16 JUDGE ROSENTHAL: What about bus drivers? I 17 i gather this plan involves bus drivers, does it not?
18 MS. LETSCHE: It involves school bus drivers, l
19 l yes, it does.
20 JUDGE ROSENTHAL: As you understand LILCO's 21 argument, these bus drivers will respond as well because 22 I they are trained?
23 MS. LETSCHE: Well, they have not been trained.
24 LILCO believes that they are all going to respond because 25 LILCO's witnesses don't believe you would place any weight ACE. FEDERAL REPORTERS, INC.
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25756.0 21 KSW e' 1 on any polls, even though they were not polls, they were 2 surveys of the actual bus drivers expected to respond and 3 that showed that a locality would not respond immediately.
4 LILCO says you can't place any weight on those surveys.
5 -
JUDGE ROSENTHAL: What is your position with 6 respect to whether the record supports the proposition that 7 the bus drivers will respond?
8 MS. LETSCHE: The record does not support that !
9 proposition. The survey evidense with respect to bus i
10 drivers was admitted into evidence. That survey evidence l
11 ; shows that a substantial number of them, I believe it is I
12 60-some-odd percent, would not report immediately to work. t i
13 l They would either go and p<.rsonally escort their families
('T :
'l 14 l out of the area of danger, or they would do something else 15 l to make sure that their families were safe before they 16 reported, and therefore they would not be immediately 17 ) available.
18 l There was evidence in addition to that survey 19 evidence as well presented by the superintendents of 20 transportation for three school districts in the EP2, and 21 those gentlemen who work every day with these bus drivers 22 and the bus companies gave their opinion as to what would 23 happen in the event of a Shoreham emergency; and they 24 4
testified that in their vf.ew there would be a substantial l
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() I bus drivers and their having worked witn them for a long 2 time, that there would be a. substantial number not 3 immediately available.
4 In addition, another problem with respect to the 5 school bus drivers is that there are no agreements in 6 existence with any of the these bus companies -- much less 7 with the individual drivers, but not with the bus companies l
8l -- according to which they have agreed to perform these l 9 evacuation functions or even early dismissal functions 10 while a Shoreham emergency is going on. The NRC precedent 11 is clear that you need to have that kind of assurance if
, 12 you are going to rely on these people to get the school ps 13 children to safety in the event of an emergency, and there
~
14 are no agreements like that here and the licensing board' ,
15 acgepted that, which we believe was a major error.
16 JUDGE WILBER: Are you separating out the bus 17 i drivers for the school children and the bus drivers for the 18 transportation dependents?
19 ! MS. LETSCHEt The bus drivers for the 20 transportation dependents are LILCO. There are LILCO I
21 l workers assigned to be bus drives who pick up the transit l
22 dependent. The problem with the transit dependent which we 23 outline is there are not enough buses for them because the 24 buses are all already committed to all the schools. LILCO 25 doesn't have arrangements for those extra buses that they O
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~N 1 need to be given up by the schools to them, and instead you (G
2 end up relying on some kind of ad hoc arrangement, at the 3 time, hopefully these buses would suddenly become available 4 and we can get everybody out, but the bus drivers, as to 5 whom there's no assurance that they will be available. Our 6 major concern is with respect to the school children, and 7 there not only are no agreements but the evidence admitted 8 indicated that they would not be available. That fact 9 makes it even more significant. that the other evidence 10 submitted by Intervenors on the role conflict issue was not 11 admitted.
12 The teachers evidence which was submitted was 13 , testimony by 12 teachers who worked in several different
(~S I kl 14 districts in the'EP2, described, number one, what it was 15 that teachers were expected to do in the event of an early 16 l dismissal or some kind of other action with respect to 17 l children, to establish exactly what your personnel needs l
18 i would be in the event of an emergency, and they also I
19 l ,
testified as to what real teachers in that real EPZ would 20 l in fact do or would be likely to do in the event of an 1
21 emergency. That testimony was also ruled irrelevant by the 22 licensing board, which we believe was a clear error.
23 In the Zimmer case, for instance, before the 24 licensing board there was an issue about the availability 25 of all sorts of volunteer workers. In that case not only ACE-FEDERAL REPORTERS, INC.
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(]) I was survey evidence about volunteer -- I think they were 2 called life squads men, rescue people, a survey of them, 3 and their availability was held to create substantial 4 problems, and the appeal board held this -- create 5 substantial questions as to the availability of bus drivers.
6 But in addition, before the licensing board in that case, a 7 license condition was imposed which required the Applicant 8 to conduct surveys of the volunteer workers upon which they 9 would rely, and that was people -- bus drivers and teachers 10 and all those people -- to determine their availability in 11 an emergency, what kind of family conflicts they had and 12 whether or not in fact they would report for duty during an 13 emergency. ,
g-)3 14 The board held that that was a condition of 15 ,
licensing. _n addition, it accepted the testimony of l
16 l several other volunteer workers, absolutely equivalent to i
17 l the teachers which the Intervenors proposed in this case.
18 They let them testify as to what they would do in an 19 emergency. The licensing board decision in our case is 20 , absolutely inconsistent with what happened at Zimmer and I
21 clearly prevented Intervenors f rom making their case and 22 demonstrating that LILCO's assertions that these people 23 would in fact be available were incorrect.
24 JUDGE WILBER: Were teachers one of the groups 25 called in the Zimmer case?
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2 if it was teachers --
3 JUDGE WILBER: Whether they were support 4 personnel or not; is this correct?
5 MS. LETSCHE: Generally what the discussion and l
6 the concern in the Zimmer case was, it was under the rubric 7 of volunteer workers and it was people who were not in a 8 functioning group, like the police officers or the 1
9 volunteer -- not volunteer, fire company, that was an 10 established group, but people who were nonetheless expected 11 to do things to implement the plan in the event of an 12 l emergency, and it did include people like bus drivers. And i
13 i as I said, these volunteer rescue worker types -- and I
(~L s 14 would have to reread the case to see if teachers were 15 ; expressly mentioned or not - but the important thing is i
16 : that the evidence we attempted to submit as well as the k
17 ! evidence which we did submit from the school administrators 18 1 made it very clear that in order to implement any l
19 l protective actions for school children, whether early 1 20 l dismissal, sheltering or evacuation, you need to have 21 teachers and you need to have other school personnel as 22 well as the bus drivers.
23 So the availability of all those individuals is.
24 , crucial if you are going to implement any protective 1
25 actions for the schools; whether you call them support
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(} l personnel or support organization is not the point. The 2 ques't ion is whether or not you can implement those 3 protective actions. And the fact of the matter, based on 4 the evidence submitted as well as that which was not 5 allowed in, is that those people are essential if you want 6 to implement those actions.
s 7 JUDGE ROSENTHAL: I have a list of things I'm I
8 interested in. I'm going to move to one of the issues 9 which arises out of the August 28 decision. That was, you 10 make what seemed to me to be a reaso'nably persuasive case ;
- 11 on the proposition that you are entitled to discovery on i
12 the Coliseum issue, but what is unclear to me is how you t I
- 13 were prejudiced by the failure to obtain discovery. I
.14 would appreciate it if you would elucidate on that subject 15 for me.
16 i MS. LETSCHE: It is always difficult, and the 17 same is true with respect to the issue on not being able to 18 pursue our FEMA discovery. It is difficult to articulate i
19 li why you were prejudiced when you were never allowed to find 20 out the information that you were trying to get. Certainly 21 that is true with respect to the FEMA issue. We can't tell 22 you what crucial evidence we would have found out because 23 l we were never allowed to find it out.
t 24 l JUDGE ROSENTHAL: You did have cross-examination 25 of witnesses, did you not? What.I'm getting at is didn't ra
\_)
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2 render harmless the licensing board's assertedly erroneous 3 ruling on discovery?
4 MS. LETSCHE: I don't believe so. I think it is 5 f airly well established that requiring a party to conduct 6 its discovery during on the record -- during the trial is 7 not an adequate substitute for-pretrial discovery where 8 .information can be' learned and can then be used in 9 preparation of one's own affirmative case. The fact that 10 -- and with respect in particular to the Nassau Coliseum, 11 the only witness provided by LILCO on that issue ~was 12 Mrs. Robinson, who was a local employee who had had various 13 and sundry conversations with some people at the Coliseum, :
p
\- l 14 but she was not an employee of the Coliseum. She knew some 15 l things but was not the person who had direct access to the l
16 l types of information that Intervenors would have sought 17 through discovery.
18 The board kept saying in its order we told you 19 l you could subpoena the general manager of the Coliseum to 20 j appear at the hearing. Well, any litigant knows you are 21 not going to subpoena a witness you have never talked to l
22 before -- you have not been allowed to talk to -- put him 23 l on the stand and take a shot at what he says at trial.
24 JUDGE ROSENTHAL: What information would you 25 have sought to elicit on discovery?
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() 1 MS. LETSCHE: We would have sought details about 2 the actual insides and the f acilities within the Coliseum 3 to determine and to be able to question or challenge, if 4 appropriate, LILCO's assertions about all the room and how 5 they will be able to do these things and how they will 6 handle the numbers of people they were talking about being 7 able to handle. ,
1 8 i We were very concerned, in addition, about the 9 availability of the Coliseum, and the testimony, some of 10 th'e testimony not admitted by the licensing board directly 11 challenged that; the ability of the people who signed the 12 i letters that LILCO relies upon, their legal ability and l
! l f3 _13 authority, in fact, to make that Coliseum available as well U as the practicalities of'it when it is going to be used for 14 l 15 the boat show and rock concerts and those things, which we 16 were not permitted to find out.
l 17 . In' addition, the general uses and -- not. general i 18 uses, but the problems that arise when that Coliseum is 19 used, when you have lots of people in it, how the 20 facilities function under those conditio.is, how the traffic 21 conditions are during those conditions, what the parking 22 lots are like; those sorts of things are what we would have 23 pursued on discovery and presumably could have used or 24 I might have been able to use -- I can't.say for sure -- in 25 the preparation of our affirmative case.
()
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~
1 The fact of the matter is that what happened (d'
2 with respect to that issue was that we were totally barred 3 from presenting any evidence at all; and I mean that entire 4 proceeding was just a gross violation, we submit, of 5 Intervenor's due process rights. The denial of discovery 6 was one in a series of other erroneous rulings.
7 JUDGE ROSENTHAL: All that information you would 8 have elicited through discovery, I 'ake it, you could and 9 did obtain during the course of the trial. Did some of it 10 come as a surprise?
11 MS. LETSCHE: We were not permitted to ir. quire 12 into certain of those areas.
13 ) JUDGE ROSENTHAL: That has nothing to do with
' CJ i
Q 14 ' discovery. The question then is whether that was an 15~ impermissible limitation on the inquiry, isn't it?
16 MS. LETSCHE: The question was did we in fact 17 h inquire. Some of them, we did not. Others I can't l
18 l remember all the questions asked. I'm sure.some of the i
19 I information was asked for at trial and some of it I'm sure 20 g wasn't, because when you are not certain of the answer, you l'
might not ask it, as you all know.
21 l I 22 I think that what happened during that entire 23 - relocation standard proceeding is laid out in detail in our 24 l briefs and I won't go back over it other than to suggest to 25 you that reading the entire history of what happened there l
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(} l and the ultimate result, which was a finding that, for 2 instance, the care center proposal proposed by LILCO is 3I fine, and in the face of evidence tha: in fact the vast 4 majority of these f acilities are not available and have not
~
5 agreed to be made available is an example of and probably 6 one of the most demonstrative examples of the licensing 7 board's refusal to just accept what the evidence showed or 8' l what the evidence didn't show in that case. !
9 It is similar, for instance, to what the
- 10. l licensing board did with respect to the ingestion pathway i
11 l in the state of Connecticut. In that instance -- and l
12 I that's contention 24-R which we disciissed in our brief --
! i
~ 13 I there was no evidence before the licensing board as to what !
14 the state of Connecticut would do with respect to the large 15 portion of the ingestion pathway which lies within that 16 ! state. There was an exchange of rather confusing letters 17 j back and forth~with the state cf Connecticut and various 18 and sundry other people, including LILCO, and the bottom 19 ! line was the state of Connecticut would do something if
'20 ! there was an emergency, but no one on the record,- including l
21 the licensing ~ board, has any idea what they would'do.
22 The licensing board said we think it is 23 preposterous to say they would not do something to protect l
24 their citizens, but that's not the issue. They need to 25 make the finding that the people would be protected, .and it g
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1 1 had no basis on the evidence before it on which to do that.
%)
2 I think our brief lays' that out in pretty good detail.
3 One case that has come out recently that became 4 available after we wrote our brief, which supports 5 Intervenors' position with respect to the board's rulings 6 on, for instance, the schools' contentions where this ad 7 hoc planning or ad hoc nonplanning, ad hoc response is not 8 accurate was accepted by the board; and with respect to the 9 hospitals where there is admittedly no evacuation plan, 10 LILCO intends only to recommend sheltering; and with 11.-l respect to the state of Connecticut the recent ALAB 819 12 decision in the Limerick case is very applicable and 13 provides additional support for Intervenors' position that
<~x {
k-) 14 those rulings by the licensing board were incorrect.
15 j In that case the appeal board found it
-16 i completely improper for the licensing board to rely upon, t
17 . number one, an argument that because there was a low 18 probability that you might have to evacuate an area you 19 don't need to plan for evacuation. The appeal board said i
20 I you can't assume that you have to have an evacuation plan, 21 just like the appeal board said in the Zimmer case.
-22 In the ALAB 819, the board also said, it 23 interpreted the recent DC Circuit Court decision and said, 24 look, the court found that a listing isn't an arrangement.
25 You have to go beyond just saying we believe things will be o
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'T 1 .available and making an' assumption that people will do (d
2 things in the event of an emergency, in order to meet the 3 regulatory requirements. You have to have evidence upon 4 which to make a reasonable assurance finding. You can't 5 just make assumptions. -
~
6 That's exactly what the licensing board did in i
7 this case. On the issues that we have identified in our .
8 brief as those where there is in fact no planning and there 9 was before the licensing board no evidence of planninge it 10 nonetheless found that planning for hospitals, the planning 11 for schools, the planning for the state of Connecticut, the l
12 l planning with respect to congregate care centers was 13 , adequate, and it had no basis upon which to do so.
I
's
(~-)T 14 Those decisions clearly violate the policies of 15 the Commission subsequent to TMI. There was no evidence f
16 l before the board that what would happen in the event of a I
17 Shoreham emergency would be any different than what
(
i 18 l happened at TMI, when you didn't have any planning at all i
19 in advance, and I think that I'm not going to talk anymore 20 l about that because I think we lay it out in our briefs.
21 l JUDGE ROSENTHAL: I would like to ask about one 22 other issue arising again from the August decision, and 23 this relates to the rejection of your late contention 24 growing out of the strike that LILCO had, and you argue 25 that under decisions such as ALAB 130 in Grand Gulf and
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25756.0 33 KSW 1 Allens Creek ALAB 590, that it wasn't incumbent upon you to 2 address the merits of that contention at the threshold, and 3 therefore the licensing board had no basis for rejecting 4 the contention on the strength of the Applicant's affidavit.
5 Now, while I might accept that line of argument 6 in the context of a timely contention, aren't the rules 7 somewhat different in the context of late contentions? The 8 Staff, for example, referred in its brief to a decision, I 9 i think, in this very proceeding ALAB 743, in which we were 9
10 l dealing with the endeavor to intervene late on the part of 11 this Brookhaven scientist group. You were not in the case 12 at that time but --
13 ! MS. LETSCHE: We were.
/'
i 14 JUDGE ROSENTHAL: I didn't see your name on the l'
15 opinion. You may have been in the case but you were not
&)
16 l involved here. We indicated there that when somebody comes 17 L in with a late petition, that would also apply to a late 18 .
contention. It is expected that that party will do i
19 ! something beyond what would be required of the submitter of I i
h 20 ] a timely contention, namely to identify its prospective i
21 ; witnesses and summarize their proposed testimony. Now, 1
22 !1 isn't really -- when you are dealing with a late contention, I
23 i the merits involved, why should we admit a late contention t
24 l in circumstances where, as appeared to be the case here, 25 your contention was based on a misapprehension of fact as U
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2 MS. LETSCHE: Two things, Judge. When that 3 contention was submitted, it was Intervenors' position 4 there's no way it can be called untimely. It was submitted 5 12 days after the licensing board's decision --
6 JUDGE ROSENTHAL: It was a late contention. You 7 had to address the lateness factors. Whether it should ,
t 8 have been regarded as unreasonably late is another matter, !
9 but it was late. So you address the five contentions. My 10 question again is, in that circumstance, why didn't you ,
11 have to get into the merits and show there was some at 12 least colorable merit to that claim.
13 MS. LETSCHE: At the time it was extremely !
14 colorable. The licensing board said we understand there I
15 l have been massive resignations from LERA. That was the i 16 licensing board's identification of the strike issues and 4
17 it was reported in the newspapers widely.
18 JUDGE ROSENTHAL: There's an affidavit that says 19 ! there's a very limited, number.
l 20 l MS. LETSCHE: An affidavit appeared sometime i
21 ! after our contention was submitted and it also was at the 22 time the strike was going on, and it was not necessarily 23 l clear that the way things were characterized in that 24 affidavit was necessarily true. It might have turned out 25 to have been true and the licensing board might have n
! k_)
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(] 1 appropriately granted summary disposition or done something v
2 else like that with respect to those facts. The point of 3 the Intervenors, however, was it was not proper for the 4 licensing board to go directly to the merits of the 5 contention in making its admissibility ruling.
6 The Intervenors did identify witnesses that they 7 intended to present on that contention. They did describe 8 generally the- types of evidence which we intended to submit.
9 In terms of responding, as you suggested the appeal board 10 had said we should, I believe we met those requirements.
11 The ultimate resolution is not something that we can debate 12 about. The fact was that the licenring board improperly 13 went to the merits at a point when it appropriately should
(~h
\/ 14 have been considering the admissibility of the contention 15 ,
based on the standards that we had met for .ts admission.
I i
16 ; JUDGE ROSENTHAL: You have almost run out of the 17 50 minutes that you were allotted, but given the fact that l
18 l I took.up a fair amount of your time at the outset on this 19 , new issue, more or less, I will give you another five 20 j minutes at this point.
I 21 MS. LETSCHE: I think the only other matter I 22 would like to talk about in my few minutes remaining is the 23 licensing board's denial of our proposed Contention 22, 24 which has to do with whether or not local conditions were 25 considered in drawing up LILCO's emergency planning zone.
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'KSW l JUDGE ROSENTHAL: Isn't it true with respect to 2 Contention 22 that most of these specific. local 3 characteristics that you -- or local _ conditions -- were 4 ventilated by the board or before the board in connection 5 with other contentions?
6 MS. LETSCHE: No. We were never permitted 7 ! because of the ruling on 22, never permitted to discuss the ,
8 impact of any local conditions upon the size of the EPZ 9 except the jurisdictional boundary issue, which was 10 discussed in 22-D and the board did look at that. We were 11 never permitted to discuss the impact, for instance, of the 12- fact that LILCO is not a government and does not have the 13 j standard type of ad hoc expanding capabilities that a 0 14 government might have, the impact of that fact upom the 15 size of the EPZ; in other words, whether or not because 16 LILCO is LILCO and not a government, you might have to have l
17 l advanced planning out to 12 miles because of certain i
18 j conditions on the island, rather than 10. We were never l
19 l permitted to address that. That was raised in 22-B.
20 JUDGE. ROSENTHAL: What were these local l
21 i conditions, such as transient population, inadequate roads, 1
22 adverse weather, considered in connection with?
23 MS. LETSCHE: Certainly when they were talking, 24 for instance, about LILCO's dose assessment methods there 25 was discussion of whether or not when they do their O
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-() 1 projections in order to come with up with protective action 2 recommendations whether the computers deal with shifting 3 winds. Computers do and they have a way of dealing with it, 4 so shifting winds and that kind of meteorological condition 5 was discussed, but it had nothing to did with the EPZ 6 boundaries. Same is true with respect to the transient 7 population and the existence of that entire east end out 8 there isolated on the opposite side of the plant.
9 JUDGE WILBER: Beyond the EPZ 10-mile limit, 10 wasn't EPZ protective action guidelines the area where this 11 10-mile limit was established? I'm confused how roads are 12 going to change the concentration of radioactivity.
7, 13 l MS. LETSCHE: The most important implication
\_/
14 about the roads, Judge. Nilber, is with respect to people 15 I being on them and blocking them and preventing people from 16 being able to get away.
17 JUDGE WILBER: That was litigated, wasn't it?
18 .MS. LETSCHE: Not with respect to where you put 19 the boundary. The number of roads within the EPZ was 20 certainly. discussed at great length in the evacuation time 21 length estimate area, but the impact of the roads outside 22 the EPZ and the fact that you have a huge influx of people 23 in the summer, the transients coming into that east end and 24 the reaction, likely reaction of those people to an j
25 emergency and what it does to the roads and whether that --
Om l
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.( ) 1 and this is the significant part -- whether that means that 2 you have to have planning further out was never discussed.
3 Whether or not, because you are going to have 4 all these people, for instance, you might want to set up 5 some kind of relocation center out on the east end. Maybe 6 they don't need it. Maybe the facts of this case, the 7 transients there and the roads out thero, indicate a need 8 to have that. Maybe that's the kind of planning that 9 needed to go'further out. Maybe you need to have a 10 different kind of public information program out there.
11 Maybe you need a different kind of perimeter control.
12 Maybe you need a perimeter control person 11 miles out.
gg 13 There's a road 11-1/2 miles out on which you
\~J 1(. will have 5000 people on Sunday afternoon in the summer.
15 We'were never allowed to discuss that, on where you stop 16 your planning, and that clearly violates the San Onofre 17 case in which not-only was a contention admitted which was 18 much more general, but which said, the EPZ boundary was not 19 drawn after consideration of local conditions. That was 20 admitted; there was testimony about it. The applicants 21 submitted a study concerning the health effects and the 22 likely figures product, as well as evidence which 23 demonstrated in that case that the Applicant had taken into 24 account local conditions, and the licensing board accepted 25 all that evidence and made a ruling off the EPZ and.in that O
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( }_
l case in one area had the EPZ going out 12 miles. . What 2 happened in our case, the licensing board said we're not 3 even' going to let you talk'about it or try to persuade us 4 you need to go a quarter of a mile out. We're not going to 5 let you talk about it at all, and that's a clear violation 6 of 547(c)(2) which we were entitled to address in this 7 proceeding.
8 !
JUDGE ROSENTHAL: Thank you.
I 9 JUDGE WILBER: One more before you leave. You 10 talk about overwhelming evidence, this is on the 11 credibility, that schools would not believe LILCO and thus 12 would~not take appropriate protective action. Are you 13 inferring here that they would do something more dangerous'
) 14 i
than LILCO would recommend?
15 MS. LETSCHE: 'The point, I think, on' credibility 16 ,
and it is -- the issue you raise is a combination-issue of ,
17 schools and credibility. There are two points. Number one, 18 the school districts.in the EPZ have -- none of them have 19 accepted any, they have not done any planning, none have 20 accepted any proposals made by LILCO and none have said
{
21 they believe those. proposals will work.
22 JUDGE WILBER: They said they will take all the 23 information they can get and use the best information they.
24 have.
25 MS. LETSCHE: I think that's a little bit of a O
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() 1 mischaracterization. You can't selectively decide you are 2 going to selectively listen to some things the school 3 people say and not others. If you say we'll believe them 4 when they say they will do their best -- and I'm sure all 5 the people would have,said at TMI we'll do our best too.
6 But you can't say we will not believe them when they say 7 the plans won't work.
8 The credibility issue, the major issue there 9 which applies to schools but applies generally to the 10 entire population is that you have a situation where up 11 front everyone acknowledges this utility, nobody believes 12 it. What the licensing board says, we know that but we w, 13 believe that emergency people will. Now, there wasn't any
- (V 14 basis for that. That's a nice assumption and that's a nice 15 hope, but you have got to have some evidence if_you are a 16 licensing board and are' making a reasonable assurance 17 finding, and there was none to support that conclusion in 18 this record.
19 JUDGE ROSENTHAL: Thank you. We'll take a 20 10-minute recess and hear from the Applicant.
l I
21' (Recess.)
22 JUDGE ROSENTHAL: Mr. Christman, you have at 23 this point a total of, as I calculate it, 45 minutes.
I 24 MR. CHRISTMAN: That's correct. I take it you l
l 25 would like me to go straight through on that?
l
~
l l
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- 1 JUDGE ROSENTHAL
- That's correct. In this 2 portion you will address both Intervenors' appeals and your 3 own, and you'll address at the outset, I trust, the 4 question that I raised at the outset with Ms. Letsche.
5 MR. CHRISTMAN: Yes, sir, ALAB 694. I'm not 6 sure I can distinguish the Summer case, and I suppose it 7 can be said justifiably that I guess the argument or the 8 ,
proposition before me is have the Intervenors waived their I
9 I right to appeal, because they didn't raise them in defense 10 of the board's decision when we appealed the legal 11 authority in a couple of factual issues. And I suppose one 12 could conclude that they had waived then and the board 13 ' should proceed with it sua sponte in the usual fashion, but
)
(~'
14 in'doing your sua sponte review I presume you would be 15 guided to some extent by the complaints the Intervenors had 16 made, and therefore, as a practical matter, it makes a 17 difference.
18 JUDGE ROSENTHAL: What do we do about the appeal 19 as such? You are suggesting, pt;obably correctly, that we 20 should address the claims the Intervenors are making, but 21 the question remains do we address them in the context of 22 an appeal or do we address them in the context of arguments 23 advanced as an alternative basis for upholding the 24 licensing board's result? Now, that may be in the real 25 world a distinction without significance, but nonetheless,
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25756.0 42 KSW f) I we have to do something with this appeal. Do we allow the 2 appeal to stand, and if so how do we justify doing that in 3 light of the fact that it is an appeal from a result that 4 . was entirely in the Intervenors' favor?
I
'S l MR. CHRISTMAN: I guess you would have a l
6 l
difficult time justifying that. The answer would be to 7 fconsiderthemerits, which I think would be useful to the i
8l Commission in the course of the ordinary sua sponte review 9 reaching your ultimate result.
10 ,1 JUDGE ROSENTHAL: All right, you can proceed 11 with your argument.
12 MR. CHRISTMAN: Fine. We talked about role I l
l'
,~s 13 I conflict first; Ms. Letsche did. I take it she has cleared N] 14 up the confusion about this exhibit which was --
i 15 , JUDGE ROSENTHAL: I think she has cleared up the !
16 _
confusion. I would tell you in all candor that I don't
! i 17 lI find that this exhibit provides very much support for, if 18 l1 any at all, for the proposition that these emergency 19 l workers will respond. I can tell you that I am 20 particularly concerned about the bus drivers, I think more 21 so than your own employees or your client's employees.
I 22 I would like to know to what extent this exhibit 23 supports the proposition that these bus drivers will 24 I respond in the event of an emergency; and if this exhibit 25 doesn't support that proposition, what in the record does?
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x_s 1 MR. CHRISTMAN: .This exhibit, which is, after 2 all, Suffolk County's exhibit, is only one page out of the 3 study.
4 JUDGE ROSENTHAL: This is the thing to which we 5 have been referred by both your brief and the Staff's brief.
6 MR. CHRISTMAN: Although I would not take this 7 one page out of a paper which is the basis of a witness' 8 opinion as the sole evidence on the matter.
9 JUDGE ROSENTHAL: What is the evidence?
10 ! MR. CHRISTMAN: Let me tell you. The evidence l
11 l you would say has two aspects, a theoretical and the purely 12 empirical. The empirical is over the course of the years,
' 13 ! the events that are represented by the witness' opinion and
(~~) ;
14 part of which are represented by this EP-1, over what did 15 we say, 500 disasters in total, show that there has never 16 i been a case where an emergency organiz'ation was unable to t
17 [ function because of shortage of personnel. Rather, what i
18 ! people observe when they go to those disasters is an oversupply of personnel.
19 l l
20 i JUDGE ROSENTHAL: What are we talking about in 21 terms of personnel? I can understand that individuals who 22 have as part of their normal occupations an emergency 23 response responsibility will respond. I take it that that 24 description could not be reasonably ascribed to the bus 25 drivers. They are not policemen, firemen, whatever other n
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l category of people you would have that are in the business 2 of responding to emergencies.
3 MR. CHRISTMAN: The key, as the theoretical side 4 of the evidence shows, is not whAt job they perform but 5 something called role certainty or role definition, which 6 is if people understand what they are to do in an emergency, 7 then history shows that they do it. Now, they can get that 8 role certainty in a number of ways, and there are two that 9 . were discussed in the evidence at great length. One is if 10 they are part through training or through being a part of
'll l 1 an established emergency plan and understanding what the 12 ! people expect of them in an emerg,ency. Another way to get 13 role certainty is'to have a part in the emergency plan that
~
14 i corresponds with their everyday jobs such as teachers, bus .
I !
15 l drivers, because as FEMA would tell you and did say on the. I i
16 record, teachers, for instance, are accustomed to 'be l
17 filling the role of taking care of the children.
l 18 l JUDGE ROSENTHAL: I don't have a problem with 19 l the teacher. I assume the teacher will remain in the 20 classroom until those children are taken care of. My 21 problem is with contract bus drivers, and I'm not as ready 22 to make' that assumption as you have. And I would like to 23 know again what-evidence there is on the record that.would t 24 indicate that these bus drivers would leave their homes, 25 wherever they are, come into this area where there may be a O
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2 cloud, pick up these kids and take them wherever they are 3 supposed to go. That is not the kind of role I would 4 suspect that most bus drivers think a part of their 5 everyday occupations.
~
6 MR. CHRISTMAN: Here is the evidence. The plan 7 builds on the emergency plans that are . already in place.
8 ,
That is the key. There is a requirement under New York law 9 that all these schools have emergency plans and those 10 include early dismissal and they also are supposed to have 11 " stay where you are" plans. Now, early dismissal plans are 12 l emergency plans of a type and are exercised all the time.
13 ,
They were exercised, I believe, while we had this hearing (1s) i because there was a snowstorm.
14 The evidence shows that the 15 '
bus companies are obligated to send the buses when they 16 .l have an early dismissal and that they have fulfilled that
~
17 duty well in the past.
18 . I JUDGE ROSENTHAL: In what circumstances?
19 MR. CHRISTMAN: Snow emergencies. ,
20 JUDGE ROSENTHAL: I would suggest that it is 21 difficult to equate a snow emergency which these bus 22 drivers in the northern climes face on a regular basis --
our drivers here even in the not-so-northerly climes have 23 l 24 been facing that recently -- on the other hand, with a 25 radiological ~ emergency, which is entirely foreign to the
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(~J 2 MR. CHRISTMAN: Are you propounding the theory 3 that radiological emergencies are fundamentally different 4 from other emergencies as far as role-playing is concerned?
5 If you look at those radiological emergencies,'which I 6 would call TMI and Ginna, you find virtually no evidence of 7 role conflict. In Ginna, none whatsoever. The people at 1
8 the plant apparently showed up. There were some outside !
9 emergency, as the record shows, some outside emergency 10 personnel called upon to mobilize and they did so. There 11 was no evidence of role conflict also.
i 12 JUDGE ROSENTHAL: School bus drivers were 13 ! involved also?
I_si i
\"
14 { MR. CHRISTMAN: I don't think so, but you will 15 find no case in history.where a school bus driver was ;
16 j called to respond to a radiological emergency, but that 17 [ doesn't mean we did not carry our burden of proof. We did 18 so by showing _that bus drivers show up in the kinds of 19 emergencies that have occurred.
20 JUDGE ROSENTHAL: How are these drivers trained?
21 MR. CHRISTMAN: They are trained to drive buses.
22 Similarly, teachers know how to teach kids.
23 JUDGE ROSENTHAL: They have no training in the 24 specifics of radiological emergency?
25 MR. CHRISTMAN: LILCO has offered to train them i s l
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/"'s 1 and to reimburse them for the cost of training, to remove V
2 any disincentive from taking it and to provide dosimeters.
3 I don't know what the current status of the training is but 4 it has been offered. I cannot guarantee that all bus 5 drivers will take LILCO up on that offer but'I suspect if 6 the plant were to operate that that would happen.
7 JUDGE ROSENTHAL: All right, let me ask you a 8 few other questions. How do you justify the failure of the 9- licensing board to permit the discovery on the Nassau 10 Coliseum?
11 ;
MR. CHRISTMAN: Very' simply because as the board 12 noted the reopening was very, very narrow. It is a public ,
13 building. The issue was very narrow and no discovery was O 14 warranted, and since it was very late in the proceeding an 15 expedited proceeding was justified.
16 JUDGE ROSENTHAL: It was late in the proceeding 17 because you surfaced it late. I don't understand how on 18 i the one hand you can put a new element into the case at a l
19 late stage and two, rely on its lateness as justification 20 f for denying discovery. It was late; it was late because of l
21 '
the Applicant / not because of the Intervenors.
22 MR. CHRISTMAN: It was late because of the 23 Applicant's motion. It was not the fault of the Applicant.
24 JUDGE ROSENTHAL: I'm not saying it was. You 25 are relying on the lateness of the hour as justification A
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1 for denying discovery, and I'm suggesting to you that the 2 lateness of the hour in this instance cannot be put at the 3 doorstep of the Intervenors.
4 MR. CHRISTMAN: If there was an issue that 5 warranted discovery, but I'm principally relying on the 6 narrowness of the reopening and also on the fact that some 7 informal discovery went forward. The Staff and FEMA
- 8. ' provided information, for instance. The Intervenors were l 9 provided some information on the scheduling of ever*s in 10 the Coliseum by the Coliseum management, and I have not 11 i heard anybody tell me anything significant that they could 12 have uncovered through all this discovery they would have 13 had.
'14 JUDGE ROSENTHAL: We heard from Ms. Letsche what. i 15 Intervenors would have sought to ascertain through 16 discovery. Now you are saying that that was not important.
17 She ended up by saying that as it turned out she couldn't 18 even get a lot of this information at the actual trial.
19 MR. CHRISTMAN: That's wrong. I was at that 20 l actual trial. She talks about details about the Coliseum.
21 They could have asked Ms. Robinson. She has been through 22 the building with a fine-tooth comb. What they asked was 23 about their excluded evidence, which went to issues not 24 within the scope of the reopening. I was there. What they 25 asked about were not these sorts of details.
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/^% 1 JUDGE ROSENTHAL: Getting to that excluded
(_)
2 evidence, your position .is ' that none of that evidence had 3 any bearing upon the Coliseum issue?
4 MR. CHRISTMAN: Oh, not on the Coliseum issue.
5 Not on the reopened issue. There were a few snippets 6l
~
relevant to the functional adequacy, and those were let in i
7 -- whether the parking lot was big enough, that sort of 8 ; thing -- but so little of it was left that the Intervenors 9 elected to withdraw *that.
10 JUDGE ROSENTHAL: Dr. Radford's proposed 11 testimony, as I understood it, went to the matter of the 12 distance of the Coliseum from the EPZ. Doesn't that go to 13 the functional adequacy of the Coliseum? I would think the
(~) 14 Coliseum would not be regarded as functionally adequate if 15 it was at such a distance from the EPZ that very few people 16 fI could get there to use it as a relocation center.
17 MR. CHRISTMAN: Number one, it goes to the 18 ! distance of the Coliseum from the EPZ, which in the first I
19 place there was testimony on that in the, August hearings 20 before this reopening occurred. In the second place, there 21 l was a contention about distance which alleged that certain 22 facilities were too close to be used as relocation centers, 23 which shows that the issue was considered in the 24 contentions but not ever put in the contention about the 25 Coliseum being too far away, and in light of the fact that A
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2 JUDGE ROSENTHAL: How do you define functional 3 adequacy? I would think myself that functional adequacy 4 goes to the matter as to whether in the real world this 5 Coliseum is going to be able to serve as a relocation 6 center, and I would think if that's so, within the ambit of 7 that inquiry would be not only the matter of the distance .
l 8 of the Coliseum from the EPZ but also the matter of traffic i 9 conditions in connection with the various evacuation routes 10 to the Coliseum, which I understand was the subject of the i
11 l proposed testimony of Messrs. Roberts and Kilduff. Am I l
12 wrong about that?
13 MR. CHRISTMAN: Yes, in the following sense.
/'~T - -
l 14 I '
The board was the one that reopened on this issue. The i
15 '
issue was was there a letter of agreement in existence and !
16 the answer is no. We produced a letter and that should 17 ; have put the matter to bed as an administrative matter.
18 The board expanded that issue to include not is there a 19 letter of agreement and is there a facility but is the 20 : facility adequate, so it defined the scope of its reopening.
21 Since it reopened it wider than we had asked and 22 therefore --
23 '
JUDGE ROSENTHAL: You are suggesting that 24 adequacy just meant whether the facility was physically 25 adequate to accommodate the folks that might be there, not
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I whether in a real sense, given its location and the roads 2 leading to it, people could be expected to reach the 3 locations.
4 MR. CHRISTMAN: That is what the board clea'rly 5 had.in mind, and the board defined the scope of the opening 6 in a more broad fashion than we asked for. I think the
-7 Staff's explanation in its brief is probably the right one.
8 What the board-had.in mind was is the building big enough 9 to handle the number of people.
10 JUDGE ROSENTHAL: If you are serving up the 11 Nassau Coliseum as a relocation center, I can't understand 12 why it is not relevant in determining whether the Nassau (yg 13 Coliseum can be expected to serve in that capacity, whether 14 people are going to be able to get there.
15 MR. CHRISTMAN: It is-if there's a contention 16 that challenges that matter, but there was none in this 17 proceeding, and as you will recall from, I think, ALAB 819, 18 a litigant is bound by tha real terms of his contentions 19 and there was no contention like that that says this 20 building is too far away and no one ever offered one, to 21 this day has never offered one.
22 JUDGE WILBER: There was an issue of functional 23 adequacy; isn't that right?
24 MR. CHRISTMAN: The issue is there is no letter 25 of agreement for a relocation center. That's all. That
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4 JUDGE ROSENTHAL: What you are saying is the 5 Intervenors should have understood that the board did not 6 have in mind whether people could reach this relocation 7 center. They should have governed themselves accordingly 8 and put in a contention that the relocation center would 9 not be in a broad sense functionally adequate because 10 people couldn't g'et there?
11 MR. CHRISTMAN: In light of the fact that there 12 was testimony in August on whether facilities 40 miles away 13 are too far away in light of the fact there was a
.j
) - '
14 contention-in the record on certain facilities being too 15 close that, yes, it would be reasonable to expect the 16 Intervenors to submit a contention saying this is too far 17 away if they wanted to litigate that.
18 JUDGE ROSENTHAL: You are also of the view that 19 the proposed testimony of Ms. Myland respecting possible 20 groundwater pollution was beyond the scope of the licensing 21 board's functionally adequate inquiry; is that right?
22 MR. CHRISTMAN: Yes, I do think that. That 23 raised a question of radic2ciical health and safety and 24 decontamination, whicJ sm n see from other contentions ,
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() I have been submitted at any time and were not. There's no 2 difference in that contention really between the Coliseum 3 and the other facilities that were proposed earlier, or for 4 that matter any hypothetical facility that could be 5 proposed. All she says is when you decontaminate people 6 the wash water has to go i somewhere and that was not within 7 the scope of any of the contentions.
. 8 JUDGE ROSENTHAL: What's your answer to any of 9 the Intervenors' claims respecting the exclusion of 227 10 MR. CHRISTMAN: We did not discuss at all the, 11 what I think is 22-A, which has to do with probability risk 12 assessments, but I'll talk about 22-B which has to do with 7S 13 I so-called local conditions.
% .) .
14 The condition mentioned this morning was that 15 LILCO was not a government and is not able to conduct an ad 16 l hoc expansion of efforts as necessary -- as might be 17 necessary when you get beyond the planning basis, but the 18 judgment that a 10-mile planning zone is sufficient to 19 permit ad hoc expansion was precisely one of the judgments 20 underlying the generic 10-mile distance. That was the 21 , judgment the Commission made when it passed that rule and 22 that is simply a challenge to the regulation.
23 By the way, as to the proposition you have to be-24 a government to expand, that's not right. Presumably, if 25 you have planned to respond to a full 10-mile EPZ in one of G
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3 1 those very rare cases where the plume goes beyond 10 miles U
2 and you need protective actions beyond that range, it is 3 almost a certainty that that plume will be a fairly tight, 4 narrow plume, otherwise it wouldn't get out that far in 5 that concentration, therefore you can remobilize some of ;
I 6 the people from the parts of the EPZ where they are not 7 needed to go outside. It doesn't have to be a government ,
8 at all. But in any event, that's a clear challenge to the 9 regulation because that's one of the underlying judgments l i
i 10 behind the generic 10-mile zone. l
+ 11 You remember frca the regulations the most 12 important -- in the emergency planning regulation -- the !
13 most important judgment made was there should be a generic ;
/, ) I 14 10-mile zone. !
That was the key to all that deliberation i
15 . that the Commission went through. We talked about the east !
16 i t enders. Well, all that was litigated. The shadow l 17 fphenomenon. We litigated the east-enders. The shadow that j 18 i the County wanted to propose extended as much as 50 miles l .
19 ! out on the east end, and they managed to.show under their 20 l mode of analysis some of those east-enders come in and go 21 i down on Sunrise Highway outside the EPZ --
22 JUDGE ROSENTHAL: If I understood Ms. Letsche 23 correctly, the claim of the Intervenors is they were not 24 permitted to litigate the local contentions in the context
~
25 of whether the EPZ was of the appropriate size and 73
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L 2 considered, it was in an entirely different context. Now 3 is she right about that? If so, does it make a difference?
4 MR. CHRISTMAN: That seems a mere philosophical 5 difference. I don't understand the basic meaning of that.
6 , The effects on people outside the EPZ were considered at 7 great length and where the people would go. The evacuation 8 time estimates the County submitted were mostly different 9 from LILCO's, only because of a large number of people who 10 never came into the 10-mile EPZ but skirted around it.
11 JUDGE ROSENTHAL: To what purpose were they 12 considered? Ms. Letsche said it was not the bottom line of 13 whether the EPZ should be enlarged. If it wasn't that it (T)
' 14 must have been in some other context for some other purpose.
15 MR. CHRISTMAN: It was in the context of 16 determining evacuatson time estimates for the 10-mile EPZ; 17 it was'not in the context of expanding the EPZ.
18 MS. LETSCHE: Could she have put in proposed 19 I findings to the effect that these local conditions 20 i ventilated in this other context required an expansion of 21 the EPZ?
22 MR. CHRISTMAN: We would have objected on the 23 ,
ground that it is still a challenge to the regulation i
24 I because the generic 10-mile distance is a requirement.
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2 EPZs because of local conditions. If the claim is that the 3 local conditions here required some alteration in the EPZ, 4 why is that a challenge to the regulations?
5' MR. CHRISTMAN: Because it is a challenge to the 6 underlying logic that set the 10-mile EPZ, I guess. The 7- local conditions just means there are people outside the 8 EPZ. If you scratch the argument, it means there are 9 people outside the EPZ, therefore they should be included 10 in the EPZ. I' don't think the argument makes sense.
11 JUDGE ROSENTHAL: What does the regulation have 12 in mind when it talks about local conditions requiring an f3 13 alteration in the size of the EPZ?
14 l MR. CHRISTMAN: We think that means, and the 15 emergency planning witnesses who do this sort of thing 16 testified that that means a . Tort of a fine-tuning of the 17 10-mile boundary. For instance, you certainly wouldn't 18 follow a strict compass-drawn circle if there were a ,
19 prominent road that people would recognize as a good 20l boundary. You tend to use those sorts of landmarks; and 21 also case law suggests that licensing boards are ready to 22 expand it out to bulge around a small discrete population, 23 or in this case to draw in a school that wasn't otherwise 24 in it, but basically it is to make the circle that you draw f
25 of 10 miles observable by people on the ground so they know s
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2 JUDGE WILBER: Did your evacuation time estimate 3 model consider these people outside and would impact the 4 release points of the EPZ?
_ 5 MR. CHRISTMAN: Yes. The KLD did all kinds of 6 sensitivity analyses. They assumed a 20-mile EPZ and 7 assumed 25 percent shadow, 50 percent shadow and'a full 8 evacuation of the 10-mile EPZ, and you can see from the 9 board's decision that that had some effect on the 10 evacuation times from the 10-mile EPZ, but not huge effects 11' on it. The only way you get huge effects is by considering 12 those people that don't go in the EPZ at all and are from 13 outside the EPZ and skirt around.
14 JUDGE W'ILBER: That's the question I'm asking.
15 Those people outside that remain outside but are clogging 16 the roads outside, doesn't that have an impact on the 17 people inside the EPZ in getting out?
18 MR. CHRISTMAN: Yes, that's what KLD's numbers 19 were. How long does it take the people in the EPZ to get 20 out and what effect do you have on those numbers from the 21 so-called shadows outside? Those numbers reflect the 22 people inside getting out under the impact of the so-called 23 shadow.
24 JUDGE ROSENTHAL: You would not have objected to 25 that hypothetical proposed finding on the ground there was (3
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}) 1 not a contention in the case to support it? I asked you if 2 they tried to put in a finding that the EPZ should be 3 altered because of local conditions; you said, well, you 4 would object to that on the ground it was an 5 impermissible attack on the regulations. I'm asking 6 whether you would have also objected to it on the ground 7 that there was not a contention such as 22 endeavoring to 8 tie the local conditions to the size of the EPZ.
9 MR. CHRISTMAN: That's a good question. The 10 objection would be, of course, that the contention was 11 already.-- the objection was there was a contention 12 submitted and it was excluded by the board. You are saying 7s 13 that the basis of excluding the contention was they could
- )
14 litigate the same thing under other contentions, and my 15 answer to that would be, it simply makes no difference 16 because they were allowed to litigate the effected people
- 17. outside on local conditions, the road network and the 18 impact on planning --
19 JUDGE ROSENTHAL: You agreed not in the context 20 of the expansion of the EPZ, and I asked you if they tried 21 to use that testimony for that purpose, whether you would 22 have objected on, among other grounds, the ground that they 23 were trying to resurrect Contention 22 which had been 24 excluded.
25 MR. CHRISTMAN: Yes, we would have objected on
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(_) 1 that ground.
2 JUDGE ROSENTHAL: Sounds to me like it's heads 3 you win and tails the Intervenors lose.
4 MR. CHRISTMAN: If they were allowed to litigate 5 the impact of planning on all these items, and no matter 6 how you put it -- or that you should draw a larger circle --
'7 the argument is still that there are people outside the EPZ 8 therefore you should make the EPZ bigger to enclose them, 9 and I don't think the logic is there.
10 JUDGE ROSENTHAL: I think Mr. Wilber has a few 11 questions on hospitals and things.
12 JUDGE WILBER: Let's start with the customer 13 service office, CSO.
(^)
s_-
14 MR. CHRISTMAN: Customer service operator. I 15 think it is both.
16 JUDGE WILBER: Intervenors call them merely a 17 vehicle, and I assume they mean by that that that is not an 18 adequate 15-minute notification. Is this correct, that 19 they are just a vehicle?
20 MR. CHRISTMAN: No. It is precisely analogous 21 to the usual situation where the notification goes to, say, 22 a sheriff's's office and there's somebody there 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a 23 day and he calls the people, but that's all that's required 24 and I think everybody except the Intervenors would agree to 25 that.
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Do they have any special training?
2- MR. CHRISTMAN: They are trained as necessary, 3 yes, because they have to be because you see, if in 15 4 minutes -they can't get the director of local response they 5 have to sound'the sirens .themselves.
6 JUDGE WILBER: I think it was the Staff that 7 said that they will activate the public warning system -- I' 8 assume that's a' siren -- within 15 minutes whether or not-9 they get the director. That tells me the tiren is going to 10 go in 15 minutes no matter what happens; .is that correct?
11 MR. CHRISTMAN: That's correct, if they.can't 12 get the person who makes the decision, because it is deemed 13 important to move quickly. The sirens mean listen to your 14 radios.
15 JUDGE WILBER: Who puts what message on the 16 radio? Who has the training and intelligence to say put on 17 tape 23?
18 MR. CHRISTMAN: As I recall, there are of course 19 precomposed messages, and I believe there are precomposed .
- 20 messages for that situa. tion. I believe they would come --
21 the information would come from the on-site plan, and it 22 has been so long since we litigated that I don't know the 23 exact details but --
24 JUDGE WILBER: This has to be an off-site 25 situation, I would think.
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25756.0 61 KSW l MR. CHRISTMAN: But the initial information 2 comes from the plant. It may say there's an emergency at 3 the Shoreham plant, please stay tuned for further 4 information. That tells people to be alert until more 5 information comes.
6 JUDGE WILBER: Does the CSO do that if they --
7 MR. CHRISTMAN: Those messages -- and I'm hazy 8 on those details, the information has to come from the~
9 on-site Staff, and it has to go to the radio station.
10 Either that or they have -- the original message would 11 simply say stay tuned and if they couldn't get the director 12 -- there's always a director on call. It is hard to s 13 l imagine not being able to get him within 15 minutes, but in
( )
14 order to meet the 15 minutes there's a provision that if 15 you can't you.must sound the sirens.
16 JUDGE WILBER: If I were to read that I would 17 say those sirens will go within 15 minutes no matter what 18 the event is. This sounds a little bit --
19 l MR. CHRISTMAN: We would have to check. It 20 wouldn't be in the case of an unusual event, I don't 21 believe.
22 JUDGE WILBER: The decision says the director 23 can initiate the sirens at the alert stage. Does this raean 24 the CSO can also?
25 MR. CHRISTMAN: I can't tell you that. I would
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2 JUDGE WILBER: Question on hospitals.
3 Ms. Letsche brought up ALAB 819, 4 MR. CHRISTMAN: So did I, I think.
5 JUDGE WILBER: Appeared that the board was 6 relying on the probability of an event as a basis for not 7 preplanning.
8 MR. CHRISTMAN: Thanks for asking. I had a note.
9 Her statement is you ( a't justify nonplanning by low 10 probabilities. In the first place, we are not justifying 11 nonplanning, not even for evacuation. It is true the 12 principal protective action for these hospitals is
, 13 sheltering rather than evacuation. That is not, I would
' ~ '
14 ' say -- well, in the first place, there's a plan for 15 evacuation in the extremely unlikely event it should be 16 called for.
17 l When the ambulances and ambulets contracted for 18 have moved nonambulatory patients out, they can be 19 remobilized to evacuate the hospitals. They would be 20 evacuated later but it is anticipated that would never be 21 necessary. The reason for preferring sheltering is not so 22 much probability as A, those hospitals are all right on the 23 edge of the EPZ. Two are outside 10 miles and one is right 24 on the line but are on the EPZ but are out or on the 25 10-mile line. Two, they are massive institutional
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yj t 1 buildings with thick walls, good for sheltering;.and three, 2 it is generally unwise to move 4079 patients because 3 evacuating them is something you don't want to do unless 4 you-really have to because of their other conditions.
5 Those are the other reasons, not really just probability at 6 all, just sound planning.
7 JUDGE WILBER: The board was wrong when they 8 t'alked about that probability then?
9 MR. CHRISTMAN: No, but it follows from the fact 10 that they are on the very edge. That's another way of 11 putting the proposition that they are on the very edge of 12 EPZ and unlikely to have heavy radiation doses.
fs 13 JUDGE WILBER: The plan is supposed to plan for-i i
~~ '
14 this situation if it is within the EPZ; isn't that correct?
15 MR. CHRISTMAN: Yes, that goes to my first point.
16 You temper what you. plan to do and how much focus and how 17 much planning you do by the likelihood. There is a plan 18 for evacuation. You use the same ambulances and ambulets, 19 remobilize them and it shouldn't be hard because they are 20 right on the edge. It is like walking across the street.
21 JUDGE WILBER: The other issue is as I 22 understand it there's no firm knowledge of where these 23 hospital patients are going if they are to be evacuated 24 other than to some hospital somewhere.
25 MR. CHRISTMAN: That's right.
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() 1 JUDGE WILBER: This is planning? The ambulance 2 and ambulet drivers know where that 'some hospital' is 3 without any prior thought? Looks very ad hoc to me.
4 MR. CHRISTMAN: As you know, the basis of the 5 board's decision was, one, that history shows the hospitals 6 are more than cooperative in accommodating patients. Two, 7 that oral agreements have been reached with all of them 8 that they would do the best they could, but it was 9 impossible for those hospitals to specify in advance how 10 many beds they would have in advance.
11 JUDGE WILBER: Couldn't they give you an average 12 empty bed rate? Seems to be a pretty big subject here.
fs 13 They seem to have good numbers on that.
! )
14 MR. CHRISTMAN: That would Se like the average 15 two feet deep stream, over your head in one spot and dry in 16 another. In the hospital's judgment they were not'able to 17 commit in advance. There's a' list of these hospitals and I 18 think it is the health services coordinators would call the 19 hospitals and locate which ones had beds and arrange to 20 have the ambulets dispatched to those places. That's 21 provided for in the plan. It is just not likely that's 22 ever going to have to happen or that it would be wise, 23 given that these are hospitalized patients who should not 24 be moved.
25 JUDGE WILBER: For some reason the board made a (G)
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25756.0 65 KSW f ,') . 1 . distinction between nursing homes and hospitals. Nu'rsing 2 homes you have to know where they-are going, where their 3 relocation centers are, and I have a little bit of 4 difficulty, other than in maybe a limited number of 5 hospital cases, why there is a difference here.
6 MR. CHRISTMAN: Nursing homes sometimes are'not 7 the_ good sheltering structures, and they are houses a lot 8 of times. People in nursing homes tend not to be as 9 gravely ill as people in hospitals.
10 JUDGE WILBER: But some are bedridden --
11 MR. CHRISTMAN: For instance the Suffolk 12 infirmary is technically a nursing home but is treated like
,g -
13 a hospital under the plan because it is an institutional V 14 sort of building and the people there, as I understand it, 15 are of the more gravely ill types of elderly people.
16 JUDGE ROSENTHAL: These distinctions are all 17 found in the record here?
18 MR. CHRISTMAN: I believe so, yes. I'm sure 19 they are because they are in our findings.
20 JUDGE.ROSENTHAL: You have about 10 minutes left.
21' You might want to address your own appeal.
22 MR. CHRISTMAN: Wouldn't be a bad idea, would it?
23 Our appeal goes to the planning basis involved in
- 24 determining how many people must we be prepared to monitor 25 and decontaminate at the Nassau Coliseum.
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.i ) 1 JUDGE ROSENTHAL: Why doesn't one fairly assume, 2- have to assume for present purposes, that absolutely 3 everybody in the EPZ might have to be evacuated and might 4 have to or might turn-up for at least monitoring at the 5 relocation center? In other words, while thera might be ,
6 only 32,000 people who needed public she.itering, that there 7 could be 160,000 or whatever that number is in the EPZ 8 requiring radiological monitoring. As I understand it, the 9 N'assau Coliseum is the only place that would be provided.
10 MR. CHRISTMAN: What you said is not irrational, 11 but my answer is there's no regulation or guideline that 12 'even suggests, if you were going to impose such a g~ 13 requirement -- after all, there are very detailed
('/
14 requirements and guidelines -- and if you thought that that 15 was a guideline then you should have written something that 16 said you must be prepared to monitor everybody in the EPZ.
17 i That's easy to say.
18 JUDGE ROSENTHAL: Why is that not a possibility?
i 19 MR. CHRISTMAN: It would be almost criminal 20 negligence to have that in your mind when you wrote those 21' guidelines and not say it. outright. I know there are lots 22 of plans in this country, lots of emerg acy plans that 23 simply don't provide for the entire EPZ, and 1 nave never 24 seen any suggestion that there is that requirement. It has 25 to be something less than that. Moreover, this may not
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25756.0 67 KSW fm ij 1 impress you at your level, but at the board's level they 2 refused to accept a contention which seemed to suggest that 3 everybody should be told -- two contentions. There was a 4 brochure contention that everybody shculd be told to go for 5 monitoring and --
6 JUDGE ROSENTHAL:~ Am I right that that 32,000 7 figure is the estimate of those people that are going to 8 require public sheltering?
9 MR. CHRISTMAN: Yes, a conservative estimate of 10 that.
11 JUDGE ROSENTHAL: If that's the case, isn't it 12 reasonable to assume that there will be at least some (g 13 people, maybe'not everybody in the EP2, at least some w) 14 people who will need monitoring but will stay with Uncle 15 George rather than require housing in one of the whatever 16 they call them, care centers or whatever the name is? It 17 seems to me that that would be required, to make that 18 assumption, that there are going to be people who will need 19 monitoring but will not need sheltering.
20 MR. CHRISTMAN: Well, the only requirement right 21 now is the board's decision which is a common law 22 requirement, but it is -- first, I think it would be 23 unlikely -- well, of course you have to assume first the 24 unlikelihood that it would be such'a fast-break accident 25 that the evacuation wouldn't work. The chances of that ACE-FEDERAL REPORTERS, INC.
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25756.0 68 KSW I happening so that people actually get contaminated, 2 notwithstanding all the proposals, plans for sheltering and 3 evacuation, I suppose the probability is low, but yes, it 4 is possible that someone might go --
5 JUDGE ROSENTHAL: Then how can you attack, as 6 apparently you do, the board's finding that the number of 7 persons expected to seek shelter in the event of a disaster 8 is not necessarily the same as the number who might seek 9 monitoring in the event of a radiological accident? That 10 is the finding which underlies what you are complaining 11 about. It seems to me offhand that's a perfectly 12 reasonable finding.
,s 13 MR. CHRISTMAN: The 32,000 is a conservative 14 number --
13 JUDGE ROSENTHAL: But that's the number that i
16 we're taking as the sheltering number, and if you agree 17 there may be people who will go to Uncle George instead of 18 requiring sheltering in a public facility, then it perforce 19 follows that that board's finding is rational.
20 MR. CHRISTMAN: It is rational. It is based on 21 our testimony that if that were to happen, that sort of 22 thing, it might be necessary to put out EBS messager.
23 advising certain people to report to the Coliseum for 24 monitoring, but that could be done. The 32,000 assumes an 25 evacuating of the entire EPZ, which means that it is C's; I
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_! ) l conservative on that ground. We believe the 20 percent is' 2 also conservative, all of which is reflected by the 3 evidence, and moreover there is an outline of a procedure 4 in the plan for dealing with greater than 32,000 people, 5 but.we didn't think it was raised by the issues before us, 6 so it wasn't presented to the board.
i 7 JUDGE WILBER:- Then there are the -- you said it 8 was based on the evacuation of the entire EPZ; is that 9 correct?
10 MR. CHRISTMAN: Everybody moves out and 20 11 percent of those need housing.
12 JUDGE WILBER: 80 percent are just going to go
. rw 13 on their way and ignore -- you are not going to tell them V -
14 to go to the relocation center to be monitored?
15 MR. CHRISTMAN: No, no.
16 JUDGE WILBER: Is that going to be a secret, t
17 that only people that need housing go to the relocation 18 center? J-12 says all peop1e who arrive at the relocation 19 center, you have to have provisions for monitoring them.
20 l MR. CHRISTMAN: Yes.
21 JUDGE WILBER: But you are saying only.32,000 22 are going to arrive there.
23 MR. CHRISTMAN: Because people are told in the 24 brochure and whatnot that if they need housing, or shelter 25 or care, come to the Coliseum. It is true --
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--j 1 JUDGE WILBER: The people leaving the zone, you 2 don't care about that; is that correct?
3 MR. CHRISTMAN: It is assumed in the normal case 4 those people would go -- not be contaminated and would stay 5 with other people. In the event that the monitoring shows 6 that there has been a p' articulate release and that certain 7 people may have passed through that particulate release and 8 would be contaminated, the message would say, you should 9 report to the Coliseum.
10 JUDGE ROSENTHAL: I must say if I were the 11 relative of one of these people who lived in the EPZ that 12 was going to provide shelter, I would want this person to
,s 13 go through a radiological monitoring bafore they turned up 14 on my doorstep. Is that unreasonable?
15 MR. CHRISTMAN: That's what the purpose of the 16 EBS message, if it were not that there were a risk that 17 people had been contaminated, people would be told to do 18 l that, but as a planning matter, we believe that the 32,000 19 would be adequate to handle those situations. We believe 20 that the planning basis should be based and is based 21 generally everywhere, as far as I know, on people who need 22 housing.
23 JUDGE ROSENTHAL: How is your client really 24 injured by the licensing board's declaration which is the 25 basis for your appeal? In the real world how does it hurt LJ ACE-FEDERAL REPORTERS, INC.
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v 1 your client?
2 MR. CHRISTMAN: In two ways, I guess. They want 3 us to predict on some basis how many people might have to 4 be monitored in a particulate accident, which would be once 5 in a lifetime event. I still haven't thought of.any way to 6 predict that on a reasoned basis. Now, polls ask if there 7 is a radiological emergency would you like to be monitored, 8 and people say yes. People decide if there's a release, 9 which way it went, if they had evacuated and the release 10 started 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> later on, most people wouldn't feel the 11 need to go. If they were not told to get monitored.they 12 probably wouldn't. You can't figure out that sort of thing s 13 i for a one-time only accident by opinion polls.
~
14 JUDGE WILBER: Doesn't your plant have to 15 consider the full zone evacuation?
16 MR. CHRISTMAN: It does.
17 JUDGE WILBER: All 160,000 are leaving and only 18 32,000 are going to the -- something is wrong there.
19 MR. CHRISTMAN: The planning basis is 32,000.
20 It is a conservative basis. The rational basis for that 21 was based on housing decision, the need for housing, not 22 monitoring. What I'm telling you is that in virtually 23 every case that number would cover the people who might 24 have been contaminated and might be advised to be monitored, 25 and in addition there is a -- the effort can be expanded to O
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("g 1 accommodate additional people. We didn't present evidence
\.J 2 on that because we didn't feel it was fairly within the-3 contentions. There is a procedure for that in the plan not 4 in the record.
5 JUDGE WILBER: Was the upper limit of the 6 capacity of the Coliseum ever litigated?
7 MR. CHRISTMAN: No, sir. As you know, we 8 presented evidence back in that August, I guess, or summer 9 of '84 on the capacity, we presented our evidence in 10 presenting the basis for it and no one took issue with that 11 basis or really raised the issue of using a different basis 12 l at that time. When the record was reopened in January, it 13 was expressly reopened to exclude the consideration of the-(~%
\~A 14 number of people who might be expected to go to the 15 Coliseum. Everyone was precluded from litigating at that 16 I point. We felt it had been litigated earlier.
17 JUDGE ROSENTHAL: Your time has expired.
18 Mr. Bordenick? You have 20 minutes on the division of time, 19 l Mr. Bordenick. Now, what's your response to the question 20 as to whether Intervenors' appeal will lie, and if not, 1
21 what should we do about it?
22 MR. BORDENICK: I think in this instance the 23 three parties are somewhat in agreement. In the Staff's 24 view, I must admit when the County's appeal came in I was 25 aware of Summer and I had the same thoughts. What's the O
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) 1 basis for their appealing given the. fact that'the licensing 2 board has denied the license, but I think the situation or 3 the two things that make Shoreham distinguishable from 4 Summer, first of all, the licensing board did deny the 5 license but not totally.for the reasons that the county 6 advanced.
7 JUDGE ROSENTHAL: What difference does that make?
8 MR. BORDENICK: Makes a difference with the 9 second poind I will make, which is that the Commission in 10 deciding to exercise its discretion to review ALAB 818 has 11 indicated it is going to hold on that review until the 12 appeal board decides the rest of the case. Taking that
<s 13 into account and taking into account the fact that the
')
's 14 Commission has authorized the exercise to .go forward, it 15 seems to me clear that the Commission is interested in 16 gathering all the facts on Shoreham because ultimately they 17 will be the final decisionmaker on whether or not a license 18 can issue.
19 JUDGE ROSENTHAL: That may mean, if we're as 20 sensitive as we should be to the Commission's wishes, that 21 we should go ahead and consider all of these interesting 22 claims that the Intervenors put up, but that doesn't answer 23 the question as to whether they should be considered in the 24 context of the Intervenors' appeal. The Commission did not, 25 as far as I am aware, focus upon, let alone repeal, the O
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l settled jurisprudence in this appeal board decision, Summer 2 is one example, to the effect that a party can only appeal 3 from an adverse judgment, which is, as I suggested to 4 Ms. Letsche, nothing novel at all, but that's the rule, as 5 any appellate advocate knows, in the courts. You can 6, defend a judgment in your favor on any ground that the 7 record or judicial or official notice will permit, but you 8 can only appeal from adv'rse e judgments. Now, my question 9 to you is, why should we leave this appeal standing, if we 10 should?
11 MR. BORDENICK: It is true the Commission did I
12 not address the Summer case or the question that the appeal
,- 13 j board has raised. However, given the other circumstances i
14 that I have elaborated, I think the Commission would find
. 15 it extremely helpful to have a ruling on whether or not --
16 JUDGE ROSENTHAL: Can we dismiss the Intervenors' 17 appeal and still pass on all of these issues that they have 18 raised?
19 MR. BORDENICK: Yes, because I'm in substantial 20 agreement with what Ms. Letsche said. You asked her why 21 she didn't raise these points in support of the licensing 22 board's decision which was adverse to LILCO. I don't want 23 to use the phrase you would be putting form over substance, 24 but I don't think the Commission is really interested in 25 how the determination as to what was litigated vis-a-vis g
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(_) I the plan was in a proper form, and I think the 2 circumstances in this case are distinguishable from' Summer.
3 JUDGE ROSENTHAL: You've heard some of the 4 matters raised with Mr. Christman. You don't need'to 5 repeat any of his responses that you agree with, but if you 6 approach some of those questions a little differently, we 7 would be.very glad to have your views on them.
8 MR. BORDENICK: I would like to turn in that 9 context to the discussion that took place before the appeal 10 board'this morning on Contention 22. I did not hear much 11 discussion on why it was the county did not exercise a 12 remedy it had available, a remedy the licensing board 1
13 discussed in its order denying the contention, which this
(~}
xs 14 particular Intervenor certainly did not need to be told 15 that by the licensing board. That remedy was to file a 16 petition for an exception to the regulation of the question, 17 50.47(c)(2) under 10 CFR --
18 JUDGE ROSENTHAL: I suspect they didn't do that 19 because they didn't believe this was in effect an attack on 20 the regulation. That's their view, rightly or wrongly, was 21 that there was a regulation that permits the fine-tuning or 22 the adjustment of EPZs based upon local conditions and they 23 were invoking that regulation, so why should they have 24 sought a compensation from the operation of a regulation?
25 MR. BORDENICK: That was their option. They O
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() l certainly didn't accept the licensing board's decision.
~
2' They continue to challenge the validity here today, but the 3 point I'm making this morning is I'm curious as to why they 4 didn't go that route.
5 JUDGE ROSENTHAL: They didn't think they were 6 called upon to do so. The only circumstance in which they 7I would have seen the necessity to go along that path would 8 have been if they agreed with you, which they don't, that l 9 they were attacking a regulation.
10 MR. BORDENICK: That's true; they don't agree 11 with me, but in any event, as has been pointed up by 12 Mr. Christman and I won't elaborate on it, and as we
,' 13 discussed in our brief at some length, the fact is the t
\-)' 14 l 10-mile EPZ, the so-called local con'ditions were litigated, '
I 15 specifically 22-D was litigated, albeit the licensing board i 16 only adjusted the EPZ to allow the inclusion of I think it 17 !
was three schools, but nevertheless, that was admitted.
18 JUDGE ROSENTHAL: Mr. Christman, I thought, conceded that it was litigated in a different context, and 19 l 20 if indee.' the Intervenors had tried in their proposed 21 l findings to use those local conditions to argue that there 22 should be alterations in the size of the EPZ, the Applicant 23 at least would have responded that proposed finding tries 24 to resurrect Contention 22, which was excluded. Would you 25 have run the same argument?
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I j) 1 MR. BORDENICK: Absolutely.
%J
-2 JUDGE ROSENTHAL: Then you follow your --
3 MR. BORDENICK:. They couldn't have had a 4 contention and the basis for that position would be they 5 couldn't have a contention because:it was clearly a 6_ challenge to the regulation.
7 With regard to -- I'm sorry, do .you have a 8 question?
9 JUDGE WILBER: I would like to talk about 10 credibility.
11 MR. BORDENICK: I was going to move on to 12 schools but --
13 JUDGE ROSENTHAL: I want to hear about school
\./~T<
14 bus drivers specifically.
15 JUDGE WILBER: On the credibility the licensing 16 ! board evidently relied on the fact that while no one trusts 17 LILCO, they could go to seek. information from many sources.
18 Now, I'm a little curious who these many sources are that 19 l they are going to seek information from.
20 MR. BORDENICK: I think what.that alludes to is 21' l the fact the record shows that there will be inputs coming
, 22 from, for exhmple, Department of Energy, U.S. Department of 23 Energy, NRC, FEMA, that sort of thing.
24 JUDGE WILBER: The Applicant, or in the 25 testimony, as I recall, the Applicant's witness says this
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1 is the. local police department and the county. officers, as 2 I recall, and my question there is, doesn't that go right 3 back to the realism argument that we had before, that they 4 are not. actors in this play?
5 MR. BORDENICK: I agree.
6 JUDGE WILBER: That testimony is not acceptable.
7 then; is that correct?
8 MR. BORDENICK: Perhaps I misunderstood --
9 JUDGE WILBER: The many people were the local 10 officials, the Applicant.
11 MR. BORDENICK: You are referring to the l
12 Applicant. Well, to the extent that they are relying on
,s , 13 i the realism argument, of course this appeal : board supported 14 by Staff has rejected that position, and to that extent we 15 would not agree with the Applicant, that's correct, but I l
16 -
was in the context of getting inputs from federal agencies.
17 JUDGE WILBER:
I recall the Applicant's-18 testimony was I don't remember those numbers being given I
19 out to be called. It was.they said they would give the 20 phone numbers of local people who could respond to these 21 questions.
22 MR. BORDENICK: To the extent they rely on that 23 testimony, I would disagree with them because we have 24 suggested that the realism argument -- we were not relying 25 on the realism argument. The Applicant was. This appeal O
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-l board has rejected that.
(v~3 2 JUDGE WILBER: The DOE people are prepared to 3 receive these calls?
4 MR. BORDENICK: The record is extensive on the 5' role that DOE people ---they call them the rap team or 6 something like that. The board may know the Brookhaven 7 National Laboratory, which is a --
8 JUDGE WILBER: That team is interfacing with the 9 public?
10 MR. BORDENICK: They could.
11 JUDGE WILBER: Yes, it is physically possible, 12 but are they in the plan?
13 MR. BORDENICK: I don't remember all the details, C)
\~
14 but I think the pl'an provides that these people will be 15 available to LILCO to give inputs and I suspect they would 16 be available to interface with the public.
17 JUDGE ROSENTHAL: Mr. Bordenick, if I may turn 18 to Suffolk County Exhibit EP-1 which you relied upon, if I 19 recall correctly, in your brief, do you truly believe that 20 { this exhibit supports the proposition that school bus i
21 drivers will respond in an emergency? And if it doesn't, 22 then what is there in the record that would support that.
23 ;
proposition?
24 MR. BORDENICK: I think I have to address two 25 questions. First of all, I don't recall that the Staff O
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(g 1 . relied on this exhibit. This was a County exhibit.
L) 2 JUDGE ROSENTHAL: I thought I saw it rely on it 3 in its brief. If I'm wrong, I apologize for that error, 4 but then I'm asking you now, irrespective of what you may 5 or may not have said in your brief, do you believe that 6 this exhibit provides support?
7 MR. BLJDENICK: I'm not -- assuming it doesn't j 8l provide support, I think what does provide support is 9 what's in our brief, at I believe page 30, which 10 Mr. Christman alluded to. That's the testimony of FEMA.
11 l There are steps that have been taken by LILCO to see to it 12 4 that the bus drivers will do what it is they are supposed i
. 13 to do.
14 JUDGs ROSENTHAL: What are the steps and what .
I 15 kind of assurance do they provide that the bus drivers will l
16 l do what you say they are supposed to do?
I '
17 l MR. BORDENICK: As Mr. Christman indicated, he 18 i does not know the status of the training of these people.
l 19 Training and providing dosimeters, extra pay, that sort of.
20 l thing. As he didn't, I don't know the status of where l
21 LILCO is with that program. That's what we relied on.
22 That's what FEMA relied on.
23 JUDGE WILBER: Do we know the scope of the 24 training, the subject matters?
25 MR. BORDENICK: I. suspect with all the Om ACE-FEDERAL REPORTERS, INC.
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v) 2 JUDGE WILBER: Talking about the bus drivers.
3 MR. BORDENICK: I can't recall specifically 4 whether there's anything in the record or not that relates 5 to the training of bus drivers. Given the extensive 6 litigation we had on training, though, as I said, I'm 7 I fairly confident it is in the record. It is certainly in t ,
8 the LILCO plan. l 9 JUDGE ROSENTHAL: I find in your brief that you 10 ,
did rely on the research of the disaster research center.
i 11 l I don't know whether you referred to this exhibit but you I
12 e said the DRC did not come across one instance of emergency i
13 l
role abandonment.
\> 14 MR. DORDENICK: Permanent abandonment. I think 15 there's a dif ference between permanent. and temporary and my 16 l reaction --
l 17 : JUDGE ROSENTHAL: Says " emergency role 18 abandonment" is what you said.
19 l MR. BORDENICK: Role abandonment. When we i i
20 ! received a call from the people over at Secretary we went i
21 and looked up the exhibit. Of course, it is a County 22 exhibit, not a local exhibit, not a Staff exhibit. My 23 j impression based on reading the transcript and l 24 cross-examination by Ms. Letsche of Dr. Dynes was that she 25 was trying to establish through that vehicle that he was 7~
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) 1 incorrect when he said there had never been a case of 2 emergency response people who had well-defined roles, et 3 cetera, abandoning that role. That cross-examination went 4 on at length, and it is somewhat confusing as to the . table.
5 i I would agree with the chairman, the table itself is 6 confusing, but I would again point out it is not my exhibit.
7 JUDGE ROSENTHAL:- All right, fair enough. Fair j 8
f enough. Let me ask you this: How would you justify the i 9 licensing board's refusal to permit discovery on the late 10 emerging Nassau Coliseum?
11 l MR. BORDENICK: I'm in total agreement with what i
12 i Mr. Christman said. I have never --
13 1 JUDGE ROSENTHAL: Agteement with his statement n :
14 that this'was very narrow or agreement with the statement '
I i 15 that because of the lateness of the hour -- l l
i 16 l MR. BORDENICK: I don't agree with the lateness 17 l of the hour. The lateness of the hour is Just not relevant 18 to that question, I would agree with that, but I think'the e
19 key is the fact that the record was reopened on LILCO's 20 I motion. As LILCO has pointed out, actually the licensing 21 I board went a little beyond wha't LILCO asked in its 22 reopening, but given that LILCO -- I can't speak for LILCO 23 or know what was in-their mind, but I'm sure they accepted 24 that slightly broadened reopening than that which they 25 sought, and at the time that they filed their motion they O
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(~} l attached the documents that LILCO was relying on,'and as
%j 2 Mr. Christman pointed out, the Nassau County Coliseum is a 3 public building. They could have gone there and looked 4 around.
5 JUDGE ROSENTHAL: Isn't there an absolute right 6 to discovery if some new issue comes in? Is it for you to 7 say or the Applicant to say or the licensing board to say 8 we think this is so narrow that it is enough that the 9 Intervenors can cross-examine at trial?
10 MR. BORDENICK: There certainly is a right to 11 discovery; however, in this case I think the County, at the 12 time they were seeking discovery, was focusing on discovery 13 Iu of the issues which they were seeking to have the board I 'I k 14 i - expand, which in my opinion the board rightfully rejected.
1 15 l JUDGE ROSENTHAL: I don't follow that. The 16 Nassau Coliseum rears its ugly head for the first time with l
17 , Applicant's rejection of it. Up to that time there had not i
18 been anything about the Nassau Coliseum. Why were not 19 l these Intervenors -- here comes the Applicant, relying upon l
20 i the Nassau Coliseum as a relocation center, why can't they 21 i get discovery to help them ascertain whether this is a 22 viable proposition?
23 MR. BORDENICK: They have never shown that they 24 were prejudiced by this lack of --
25 JUDGE ROSENTHAL: That's a separate question.
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~N 1 I'm asking you now whether it was an error for the (Q l 2 licensing board to deny them discovery. If it was an error, 3 then there's a question as to whether that error was 4 harmless, but those are two separate issues.
5 -
MR. BORDENICK: Not under the limited reopening 6 allowed by the ficensing board. I' don't know what they 7 would have sought to discover.
8 JUDGE ROSENTHAL: You heard this morning what 9 Ms. Letsche would have sought to discover. Why wasn't she ;
10 entitled to do so? i 11 MR. BORDENICK: Because discovery would not have 12 served a useful purpose.
13 JUDGE ROSENTHAL: I She has a different view of r b)
N' 14 !
that. How do we know whether discovery would have served a
! I 15 l useful purpose? !
l I 16 !i MR. BORDENICK: She hasn't explained how she was !
-17 prejudiced.
18 JUDGE ROSENTHAL: I understand your argument she 19 wasn't prejudiced. I'm asking you whether, prejudice or, 20 not, this was licensing board error. That's a separate 21 question.
22 MR. BORDENICK: As we've stated in our brief it 23 was not because of the limited scope of the reopening.
24 There really was nothing to discover.
25 JUDGE ROSENTHAL: You agree, I take it, with the ew
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(- 1 response Mr. Christman gave on the matter of the exclusion
(_)3 -
2 of their testimony of their witnesses?
3 MR. BORDENICK: The school teachers, for example?
4 JUDGE ROSENTHAL: There was a whole list of 5 witnesses excluded and Mr. Christman, as I recall, 6 justified the exclusion on the ground that that testimony 7 didn't go to the functional adequacy of the Nassau Coliseum, 8 as the licensing board used that term. .
9 MR. BORDENICK: Okay. You're still on the 10 Nassau Coliseum?
11 ' JUDGE ROSENTHAL: Yes, love the Nassau Coliseum, l
12 particularly when-the hockey game is going on.
13 MR. BORDENICK: I'm in total agreement with what 14 he said on that.
15 JUDGE ROSENTHAL: You read functional adequacy 16 in the same way Mr. Christman ass'igns to that?
17 MR. BORDENICK: Absolutely.
18 JUDGE WILBER: Did I read where this was going 19 to serve a dual function, that some activities will i
continue on whether they are hockey games or whatever; is l 20 l l 21 that correct?
22 MR. BORDENICK: You must be alluding to the 23 recent LILCO amendment to the plan?
24 JUDGE WILBER: Perhaps. Is that correct?
25 MR. BORDENICK: My understanding is, as_the O
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}-
2 tomorrow. LILCO's original proposal for the Nassau 3 Coliseum was that -- well, I - take it the board has never 4 been to the Coliseum. You go to the Coliseum, if you go to
~
5 the floor where, for example, the hockey games are played, 6 it is a relatively small floor area, big.enough to 7 accommodate a basketball or hockey game or circus. The ;
i 8 . bulk of the space available at the Nassau Coliseum is in f a 9 the so-called exhibit area, underground in the concourse 10 and the parking lots, and turns out that tomorrow I think 11 there's a boat show. So rather than ask FEMA, because it 12 takes -- there's a long lead time to gear up the holding ,
l 13 exercise on FEMA's part, LILCO, rather than say, cancel our
(_J
\- 14 exercise because there's a boat show, moved the --
15 l JUDGE WILBER: This applies only to this ;'
i 16 ! specific case; is that correct?
\ :
17
, MR. BORDENICK: They have amended their plan.
18 -
What they propose to do next month I couldn't answer that.
i 19 I s,uspect they will leave it as is but I don't know.
{
20 JUDGE WILBER: This is, I believe, quite 21 different from what the plan that was litigated or the 22 space allowed --
23 MR. BORDENICK: It is less space but space is 24 space. They feel it is still adequate.
25 JUDGE WILBER: You can't get 10 pounds in a
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, 1 five-pound box, you know --
2 MR. BORDENICK: They feel it is adequate space.
3 FEMA will tell us whether or not their opinion is correct 4 or not after tomorrow. I can't address whether it is 5 adequate space or not. I don't know.
6 JUDGE ROSENTHAL: While your time is expired, I 7 have one question for you on the Applicant's appeal. That 8 '
is, do you agree that whether there are people that would I
9 I call for monitoring that at the same time would not need 10 sheltering, is a "no, never minId" here, that the Applicant i
11 doesn't need to estimate the number of people, if any, that l
i 12 fall in the category of monitoring but not sheltering?
13 MR. BORDENICK: I'm not sure it is a ,o , never
(, -
f, 14 ', mind." I don't go so far as to say it is clearly precluded'--
15 I support his appeal because I have a problem with the fact 16 that what the licensing board did here was beyond the scope 17 , of any admitted contention. Nor did they ever put LILCO on l
18 notice that they were going to do what they did. I stated 19 simply I think it was unfair. I'm somewhat surprised at l
i 20 j the licensing board because I think the licensing board did 21 i an excellent and thorough job on every issue, and on this I
i 22 j issue not to have put LILCO on notice seems to be 23 ! elementarily unfair.
24 ! JUDGE ROSENTHAL: Did LILCO ask for i
25 reconsideration on the issue? Normally when one is o
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(^3 1 surprised by some action on the part of the tribunal that V
2: that party had no reason to anticipate the course of action 3 is motion for reconsideration. Was that done here?
4l MR. BORDENICK: It was not done and as to why.
5 they didn't do it --
6 JUDGE ROSENTHAL: Doesn't that sort of strip 7 your unfairness claim of its vitality? If they didn't -
l 8 invoke the remedy that would be available to them to i 9 overcome the action without proper notice I don't know why 10 we should step in on that basis.
11 MR. BORDENICK: I think motions for 12 reconsideration in those circumstances are generally 13 l advisable. I don't remember the citation -- I remember one 14 case from many years ago, the Fitzpatrick case. It seems i 15 to me motions for reconsideration are appropriate when the i 16 licensing board.has done something based on some 17 l misunderstanding --
18 JUDGE ROSENTHAL: Also it is appropriate when
-19 I the licensing board, which is in fact the case here, acted 20 without giving appropriate notice to one of the parties 21 that was considering taking that action.
22 MR. BORDENICK: I don't think the fact and the 23 circumstances of what was done here, that the Applicant 24 didn't seek reconsideration, precludes them from pursuing 25 what the licensing board did on appeal.
L
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25756.0 89 KSW r's 1 JUDGE ROSENTHAL: Thank you, Mr. Bordenick.
'% )
2 MR. BORDENICK: I suspect I have exceeded my 3 time. I would have liked to address one further point if I 4 might. That was on the Connecticut plan.
5 JUDGE ROSENTHAL: All right.
6 MR. BORDENICK: I'll be very brief about it.
7 The admitted contention that was litigated was I'
8 whether or not there was an agreement from the -- or letter 9 from the state of Connecticut. The question of the 10 adequacyoof the Connecticut plan was never raised, and in 11 . fact in the reply brief they point out that it was raised
-12 in Contention 79, but if you go back and look at the 13 genesis of the contentions raised in this case you'll see
[D
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i 14 that back on January 12, 1984, there was a memorandum 15 accompanying proposed modified emergency planning 16 contentions that accompanied a rather thick document which 17 in effect was the book of contentions, so to speak. And in 18 that memorandum that was submitted on behalf of Suffolk 19 l County, they specifically state on page 3, the heading is-20 l
" Item 2, withdrawn contentions. The following contentions 21 or subparts have been withdrawn by Intervenors because the 22 revisions to LILCO plan made subsequent to filing of 23 contentions in July of '83 made the contention no longer 24 applicable to the plan being submitted by LILCO." There is 25 a series of contentions and one of them is 79, so that O
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~s 1 contention was -- for a while it was proposed but it was (d
2 specifically withdrawn by the County. That's what the 3 Staff meant when we said they never raised the issue below.
4 They pointed out in a reply brief and raised it in their 5 findings but I suggest that hardly raises it to the level 6 of litigation.
7 , JUDGE ROSENTHAL: Ms. Letsche, you have a total I
- 8 of 25 minutes which must be devoted to one, your response '
9 to the Applicant's appeal and two, a rebuttal on your own 10 appeal, and in terms of your own appeal there be can no new 11 matter raised.
12 MS. LETSCHE: Judge, I don't have anything j l
13 specific to say in response to LILCO's appeal. I think '
('/T
'- 14 everything we have to say is laid out in'our briefs .
I 15 including responses to matters the board raised, so I won't !
16 be using those 15 minutes. I do have a few things to say j 17 l:
'I in rebuttal with respect to our appeal. First of all, with' 18 respect to the applicability of the Summer case, if I could i
19 i just make two responses. First of all, at the time that 20 the legal authority issues were briefed, there was not any 21 final result yet.
22 The concluding partial initial decision came out, 23 I believe August 26. The legal authority issues'were 24
~
briefed and in fact argued August 12 before this board. I 25 think that that is one reason why certainly, when we wrote O
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25756.0 91 KSW 1 our legal authority issue briefs, we were not in a position
(b 2 to know that it would have -- might have been appropriate 3 to have included all these other appeal issues in that 4 brief rather than waiting until the subsequent brief came 5 out.
6 In addition, if the board believes that the 7 Summer case does apply here, then our position would be 8 that you should treat our appeal of the issues as an 9 additional reason to reject LILCO's legal authority appeal, 10 and as an additional reason why the result, that is, that 11 no license should issue, is correct.
12 Let me-respond to a few of just a couple of 13 matters discussed by Mr. Christman and Mr. Bordenick.
p Y- 14 First of all, on the role conflict question, first of all, 15 with respect to bus drivers, Mr. Christman has stated and 16 it is in the decision and in the evidence that LILCO has 17 offered to provide training to bus drivers, but that is all.
18 There's no evidence that any training has been given.
19 There is no evidence that any training will be accepted or i
20 that any has ever taken place, and it is clear under the 21 NRC precedent, and we've cited this in our briefs, 22 particularly the Zimmer case and the Consumers Power at Big 23 Rock Point case that training or ongoing efforts to 24 accomplish things are not sufficient. There is no evidence 25 upon which a finding of training is going to take care of
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{} l the role conflict problem that is in the evidence --
2 JUDGE ROSENTHAL: Do you agree if the bus 3 drivers were afforded some training that they could then be 4- counted upon to respond in the event of an emergency? In.
.5 other words, that that would take care of the role conflict 6 problem that you suggest?
7 MS. LETSCHE: No. First of all -- and the !
8 volunteer firemen survey not admitted into evidence is a j 9 substantial part of this -- that survey showed that trained. I 10 emergency workers trained to be firemen are going to 11 experience role conflicts and would not show up during a 12 Shoreham emergency. The board didn't want to listen to i
s 13 that, they didn't let it in but it showed that these i 14 so-called emergency workers that LILCO is relying ~ on, 15 talking about their own~ workers, as well as if you wanted ,
16 , to, incorrectly, assume that some training of the bus 17 drivers would occur, that that does not take care of the .
18 ! role conflict problem.
I 19 l In addition, the evidence which LILCO and the 20 Staff supposedly believe shows the history that in fact you i
21 don't have a role conflict problem if you have trained 22 emergency workers, that history is the disaster research 23 center study; as the board said, and as I believe we have 24 demonstrated, it doesn't support that, so I don't think the 25 record shows that the training would make the difference.
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('} l JUDGE ROSENTHAL: How does one affirmatively
's )
2 show that bus drivers will respond in the event of a 3 radiological emergency when there's been'no empirical 4 experience one way or the other?
5 MS. LETSCHE: One thing you can do, which is 6 what the Zimmer board ordered and what Intervenors 7 attempted to do here but were not permitted to, is you 8 listen and believe what the people tell you. You ask them 9 ,
are you going to show up and if they say no, you don't turn 10 around and say we don't believe you.
11 JUDGE ROSENTHAL: Who do you ask, the bus 12 i drivers, and ask them if there were a radiological 13 emergency would you or would you not respond? .
14 , MS. LETSCHE: That's right. If you have a 15 sufficient number of people who say yes, I will, so you can i
16 make a reasonable assurance finding, if there's evidence to 17 ! that, then you might have a different situation, but you
?
18 i don't have that evidence here.
1 .
19 JUDGE ROSENTHAL: Have we ever required that in I
'20 any other case?
21 MS. LETSCHE: In Zimmer, a license condition was 22 that the surveys be performed of the volunteer workers 23 being relied upon, and that there be a determination as to 24- , whether they were available, what their family commitments 1
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25756.0 94 KSW 1 going to be assigned during the radiological emergency, and
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2 based on that the Applicant had to demonstrate that there 3 would be sufticient volunteers available to accomplish what 4 they said they were going to accomplish.
5 JUDGE ROSENTHAL: Was this all done before a i
6 license issued -- the surveys took place?
7 MS. LETSCHE: Zimmer, as you know, ended.
8 JUDGE ROSENTHAL: What was the licensing board i
9 : decision, though? I don't ask for a citation. What was 10 the. bottom line?
11 - MS. LETSCHE: It was the one that your decision --
l-12 l the appeal board's decision in 17 NRC affirmed. !
13 , JUDGE ROSENTHAL: It authorized some form of !
(~\ l
\# 14 license?
~
l 15 MS. LETSCHE: No, it did not, but it issued -- _;
i 16 this was a partial initial decision. It had a number of l 17 conditions in it. It'did not grant the license because of 18 ,
the schools. The appeal board affirmed there was no i i 19 l planning for the schools --
20 JUDGE ROSENTHAL: As far as the licensing board
~
21 was concerned, before this plant could obtain its blessing, 22 the board's blessing on an emergency plan, it had to 23 conduct these surveys?
l 24 MS. LETSCHE: That is correct. Here it is.
25 June 21, 1982 is the licensing board decision. 15 NRC 1549.
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25756.0 95 KSW r ^' One other matter related to the role conflict n) 1 2 issue, I believe you, Judge Rosenthal, said something with 3 respect to teachers, that you don't really have a problem 4 with the teachers because you assume they will stay. Well, 5 with all due respect, the evidence that has to determine 6 that judgment -- the evidence in this d'ase --
7 JUDGE ROSENTHAL: I can't take official notice 8 of that fact?
9 MS. LETSCHE: No, with due respect, you can't. ,
10 The evidence we attempted to submit was from the teachers I
11 and would have given the licensing board some facts upon 12 which to make some kind of judgment one way or the other.
,_ 13 T. hey had none other than Dr. Mileti saying he believes 14 teachers will stay. It was clearly improper not to permit 15 that evidence in and in addition to make an affirmative 16 finding in the total absence of any evidence and based 17 g solely on an assumption.
18 With respect to the hospitals you had a few 19 I questions, Judge Wilber, for Mr. Christman about that. I 20 just have a couple of comments. It is very clear in the 21 I record of~this proceeding that there is not any plan for 22 evacuation of those hospitals.
23 Number one, what LILCO has said they will do, 24 and they have been up front about it, they will discuss it 25 when there's an accident. They don't have ambulances and ACE-FEDERAL REPORTERS, INC.
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(]) 1 vans ready to go. If they have some left over when they 2 come back f rom . the nursing homes they will do it. There 3 are no time estimates done for these hospitals. According 4 to Guard and Wolf Creek and others we have cited, a list of 5 hospitals that might be available is not sufficient.
6 With respect to the nursing' home/ hospital !
7 distinction, the licensing board in its decision never gave 8 any reason for its differential treatment with respect to 9 reception centers for those two types of facilities.
10 JUDGE ROSENTHAL: Isn't the reason it was 11 assigned by Mr. Christman rational? If there's record 12 support for it? Different types of buildings and, 13 presumably, in large measure different type of patients.
l .()
- 14- MS..LETSCHE: I beg to differ. I'm not aware of !
15 that in the record anywhere, b,ut most importantly the 16 i licensing board .didn't make a finding like that. What.it i
17 said, and-it is in the decision on page'840, is it is okay,
- 18. ' we don't think you have to do anything else with respect to 19 reception centers for hospitals, but it is different for 20 nursing homes'and therefore you have to have them.. No 21 rationale for it, just you have to have it. It is~just not 22 true to say there's any kind of planning for evacuation for 23 hospitals because there is none in the LILCO plan.
24 One quick point on the credibility question you 25 raised. There is nothing in the LILCO plan that says the
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25756.0 97 KSW 1 DOE people are available to take calls from the public if 2 there's a credibility problem there. And with respect to 3 the Connecticut --
4 JUDGE WILBER: Would you say that again?
5 MS. LETSCHE: Mr. Bordenick said something about 6 the DOE. There's nothing-in the plan that says DOE rap 7 teams will be available to take calls from the public. The 8 LILCO people who are given titles of director of LERA and 9 who do the EBS messages, write the messages and give them 10 out, and there is a reference to the messages that says 11 something about scientists have been consulted, but the n
12 f messages are all coming from LERA and the rumor control l
13 I point that the public is told to call is LILCO.
k/) 14 Finally, with respect'to the Connecticut plan, I 15 just want to make one quick comment in response to 4
16 ! Mr. Bordenick's statement about the fact that the adequacy 17 issue was not raised. When you look at, for instance, the 18 new regulation 0654 requirements that talk about agreements, 19 l they don't say you have to have a piece of paper.
They say l
20 l you have to have evidence that there's sufficient staff, 21 sufficient resources, there's a way to mutually acceptable 22 criteria for implementing what these people are going to do.
I 23 You have arrangements for exchanging information and 24 there's a statement of the emergency responsibilities'that 25 the particular organization with whom you have an agreement O
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2 Whether you call that adequacy or not I don't 3 know. That's just a word. The fact is this licensing.
4 board had no idea of what the state of Connecticut was S going to'~do.
6 With respect to Contention 79 which 7 Mr. Bordenick alleges we said was withdrawn, the fact is 8 that the licensing board had admitted that contention-and '
9 said it was consolidated into 24-R, so when we are did our 10 contentions we didn't bother writing it again.
11 JUDGE ROSENTHAL: I think your time has expired.
12 MS. LETSCHE: It might be helpful, Judge, to 13 have a copy of the Exhibit EP-1 put into the transcript. I O
l 14 have an extra copy if the board would like to do that.
15 JUDGE ROSENTHAL: Any objection?
16 MR. CHRISTMAN: Not from us.
17 MR. BORDENICK: It is already bound into a.
I 18 licensing board contract.
19 JUDGE ROSENTHAL: Yes, the suggestion was, for 20 l those unfortunate enough to have to read the transcript, we 21 might include that. Since Ms. Letsche chose not to address
'~
22 the Applicant's appeal, there obviously is no room for 23 rebuttal to anything she said. Therefore, the appeal will 24 stand -- or excuse me, appeals will stand submitted, with
, 25 the thanks of the board to all counsel for their helpful O
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/N 1 participation.
.Q 2 Without committing my colleagues to any 3 particular. course, my guess is that even if we were to 4 dismiss tne Intervenors' appeal on the strength of the 5 Summer decision and the decisions that were referred to 6 therein, we would very likely go ahead and consider the 7 issues that are presented by those appeals if, for no other 8 reason than.as was alluded to, the Commission indicated a 9 desire to have our views; but in-any case, what decision we I
10 will make on that will be in the fullness of time 11 communicated to the parties. With that I would note once 12 again that the appeal stands submitted.
13 (Whereupon, at 11:40 a.m., the oral argument was i i
14 concluded.) -
15 l
16 1 i
17 l 1
18 !
19 l 20 21 !
I 22 23 24 25 ,
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CERTIFICATE OF OFFICIAL REPORTER A.J This is~.to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of:
NAME OF PROCEEDING: LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unitel)
' DOCKET NO.: 50-322-OL-3
. PLACE: BETHESDA, MARYLAND f) DATE: WEDNESDAY, FEBRUARY _12, 1986 I
V were held 'as herein appears, and that this is the original transcript thereof for the file of the' United States Nuclear Regulatory Commission.
(sigt -
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KATHIE S. WELLER Official Reporter ACE-FEDERAL REPORTERS, INC.
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