ML20154E436
| ML20154E436 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/06/1988 |
| From: | HUNTON & WILLIAMS |
| To: | |
| Shared Package | |
| ML20154E381 | List: |
| References | |
| LBP-88-02, LBP-88-2, OL-5, NUDOCS 8805200214 | |
| Download: ML20154E436 (35) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
Before the Atomic Safety and Licensing Appeal Board b
In the Matter of ) 1
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S REPLY TO INTERVENORS' AND NRC O STAFF'S OPPOSITION TO LILCO'S APPEAL FROM LBP-88-2 ,
I O
HUNTON & WILLIAMS 707 East Main Street j l
P.O. Box 1535 O Riehmand; Virgtnia 23212 i
May 6,1948 g
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8805200214 080506
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) UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensilw Appeal Board
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
) Unit 1) )
LILCO'S REPLY TO INTERVENORS' AND NRC
) STAFF'S OPPOSITION TO LILCO'S APPEAL FROM LBP-88-2 Y
I HUNTON & WILLIAMS 707 East Main Street P.O. Box 1535
) Richmond, Virginia 23212 May 6,1988
)
2 J
)
TABLE OF CONTENTS
)
B!st I. I N T R O D U C TIO N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
) II. THE "FUND AMENTA L FLAW" STAN DA RD . . . . . . . . . . . . . . . . . . . . . . . . . . 2
!!!. "FUNDAMENTAL FLAWS" FOUND BY THE BOARD . . . . . . . . . . . . . . . . . . . 7 A. Traf fic impediments (EX 41) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
) B. Public Information (EX 38, 39, and 22.F) . . . . . . . . . . . . . . . . . . . . . . . 11 C. Mobilization of Traf fic Guides (EX 40). . . . . . . . . . . . . . . . . . . . . . . . . 14 D. T rai ni ng ( E X 5 0 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
) 1. Licensing Board Jurisdiction . . . . . . . . . . . . . ... . . . . . . . . . . . 18
- 2. S t a nda rd of R ev iew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
- 3. Supporting Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
) 4. Post-Exercise Drill Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
- 5. L E R O as A m a t eurs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 IV. CONCLUSION.............................................. 25
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3 0
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TABLE OF AUTHORITIES i Federal Deciskms Van
)
Union of Concerned Scientists v. NRC,735 F.2d 1437 (D.C. Cir.1984),
ce r t , de nied, 4 6 9 U .S . 113 2 ( 19 8 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. 5 Nuclear _ Regulatory Commission Decisions j Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2),
ALAB-182,7 AEC 210, remanded on other grounds. CL1-74-12,7 A E C 2 0 3 ( 19 7 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ,
Carolina _ Power & Light Co. (Shearon Harris Nuclear Power Plant),
LB P-8 5-4 9. 2 2 N R C 8 9 9 ( 19 8 5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4
- Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), '
C L1-8 6-2 4, 2 4 N R C 7 6 9 (19 8 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 i
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
, LB P-85-12, 21 N RC 6 4 4 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,13 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), [
C LI-8 6-11, 2 3 N R C 5 7 7 (198 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3 l
j Long Island Lighting Co. (Shoreham Nuclear Power Station Unit 1).
A L A B-8 32. 2 3 N R C 135 ( 19 8 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), !
LBP-88-2, 27 NRC ( Februa ry 1, 19 8 8) . . . . . . . . . . . . . . . . . . . . . . . passim ,
i j
R_arulations
. 10 C F R S 5 0. 4 7(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 i 1
10 C F R S 5 0.5 4(s)( 2 Xil) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 [
46 Fed. Reg. 61,135 col.1 (December 5,1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 L
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- 1. INTRODUCTION 1
LILCO files th!s brief in response to the "Governments' Brief in Opposit!on to LILCO Appeal from LBP-88-2," dated April 18,1988 (hereinaf ter Intervenors' Brief),
and "NRC Staff Response to LILCO Appeal of the February 1,1988 Initial Decision on the Emergency Plan Exercise," dated April 28,1988 (hereinaf ter Staff's Brief). Interve-nors oppose all of LILCO's objections to the Board's findings of "fundamental flaws" in communications, mobilization of Traffic Guides, and training. The Staff's brief sup-q ports LILCO's ultimate conclusion that the Board's decision should be vacated in those areas where the Board found fundamental flaws in the LILCO Plan. However, the Staff opposes a number of LILCO's objections including the use of post-exercise drill materi-O als, the g ludicata effect of prior emergency planning decisions and the correctness of admission of Contention EX 50 dealing with LILCO's training program.
Intervenors' appeal brief spends a great deal of time repeating the Board's 263-O page decision on the exercise. Spe Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-88-2, 27 NRC (February 1,1988). In doing so, Intervenors mischaracterize in some respects the Board's decision and LILCO's arguments in sup-o port of this appeal, rely upon evidence which was not the basis for the Board's decision, and misinterpret the law on which the Licensing Board's decision is based. The Staff, while agreeing with LILCO's ultin: ate conclusion, nevertheless misapplies t' Jcable O
law or misinterprets LILCO's arguments in disagreelng with portions of L!LCO's brief.
' This brief addresses, issue by issue, the "fundamental flaw" standard and the four con-tention groups (EX 38 and 39, EX 40, EX 41, and EX 50) discussed in the Intervenors' o
and Staff's b.-lefs. For the reasons stated below, their arguments should be rejected on appeal.
O O
i l
II. THE "FUN _DAMENTAL FLAW" STANDARD There are strong disagreements among the parties about what "fundamental !
i flaw" means in the context of a licensing board's review of exercise results. Indeed, j each party has offered a different definition of the term.O The definition adopted by l
[ the Licensing Board does not match any party's definition and even that "definition" i .
changes throughout the Board's opinion. The conclusion to be drawn from this contro-versy may be that it is difficult, if not impossible, to precisely define the term "funda-mental flaw." Rather,it may be more productive to inquire: what is a Licensing Board f l
supposed to be about in its review of exercise results? Each party, relying upon the j Union of Concerned Scientists,U Shearon HarrisW and CLl-86-11$ decisions, comes to !
l a different conclusion. !
Intervenors and the Licensing Board determined, incorrectly, that the Licensing Board's role in exercise review was a de novo review of the LILCO Plan in light of the actions of individuals on the day of the exercise in implementing the Plan. Coupled with evidence from post-exercise activities, the Licensing Board found "fundamental flaws" in communications, timely mobilization of Traffic Guides and training. LILCO l
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submits that Intervenors and the Licensing Board have not properly distinguished be-tween a determination of whether the Plan is implementable as a basic matter versus ,
whether the Plan was implemented properly on the day of the exercise. The first in-
)
quiry is the proper one for the Licensing Board; the second is not.
F The Staff has, in f act, advocated two dif ferent definitions.
) Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.1984), cert, 2/
denied,469 U.S.1132 (1985).
3/ Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-85-49,22 NRC 899 (1985). ;
) y Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-11,23 NRC 577 (1986).
P
.O Interrenors wrongly characterize LILCO's view of the decisions in Union of '
O Concerned Scientists, Shearon Harris, and CLI-86-11 as "compel (ling) a conclusion that issues of plan implementation are virtually pet se non-litigable in an exercise con-text." Intervenors' Brief at 4. In so doing, they play semantic games with the word O
"implement." There is no question but that a "reasonable assurance" finding under 10 CFR S 50.47(a) sheds light upon the implementability of an emergency plan, and In-tervenors note that "information about plan implementability is the essential contribu-O tion of an exercise." Intervenc. Brief at 5 (emphasis in original, quotation and cita-tion omitted). LILCO has never asserted otherwise. But what Intervenors have done throughout this litigation is to confuse plan implementability with implementation on O
the day of an exercise. Rather than asking whether LERO's actions during the exercise pointed up serious flaws in the implementability of the written LILCO Plan and proce-dures, Intervenors have consistently urged the Licensing Board to base its decision on O
whether individual LERO workers implemented the Plan accurately on the day of the exercise. At Intervenors' urging, the Licensing Board answered the wrong question in LB P-88-2. '
O LILCO relies upon the language in CLI-86-11 that exercise review "is restricted to determining if the exercise revealed any deficiencies which preclude a finding of reasonable assurance that protective measures can and will be taken, b, fundamental O
flaws in the plan." 23 NRC at 581. Intervenors dismiss this language, claiming that
"(t]he implementability issue was not presented squarely in CLI-86-11" and accusing LILCO of ignoring the "reasonable assurance" language in the &cisinn. Intervenors'
- O Brief at 7. But it is the intervenors who ignore the "reasonable assurance" lang.nge, not LILCO. Exercise review is limited to implementability flaws in the plan as re-vealed by the exercise activities. What Intervenors identified in their contentions, and O
the Board itattfied as "fundamental flaws" in its decision, are implementation l
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) 4 problems on the day of the exercise by individuals, not implementability problems in i
) the plan as shown by the resporr.e of the organization on the day of the exercise. l I
intervenors make much of the language in the Commission's decision in Shearon ;
Harris, that "(e)ven though the results of the May 1985 exercise show some problems, I i
- they do not show a flaw in planning or implem 7tation that would require another exer-cise prior to issuance to a full power license."' Carolina Power & Light Co. (Shearon l
Harris Nuclear Power Plant), CLI-86-24,24 NRC 769,777 (1986)(emphasis added); see j
) Intervenors' Brief at 7-8. This language is consistent with the earlier Shearon Harris 11-censing board decision, relied upon by LILCO, Carolina Power & Light Co. (Shcaron !
Harris Nuclear Power Plant), LBP-85-49, 22 NRC 899, 911 (1985). In the latter case, j
) however, implementabluty of the plan, not the implementation on the day of the exer- l l
cise, was considered. For example, the implementability of the plan was deemed not to }
\ t
! be affected even though no EBS messages went out on the day of the exercise, resulting
) in poor implementation of the plan by individuals that day.
This implementability/ implementation distinction is pointed up by consideration ,
of the exercise activities upon which the Licensing Board based its findings of funda-mental flaws.E/ The Licensing Board relied upon the activities of tho Evacuation Route !
l l Coordinator, for example, on the day of the exercise to determine that his performance j I
in part constituted a "communications flaw" in the plan. His individual performance also contributed heavily to a finding of a fundamental flaw in "training." But individu-al's performance on the day of the exercise does not prove an overall imDlementability
[
l - problem with a Plan involving 2000-odd persons in over 100 job titles. There is no
) !
{/ The Licensing Board improperly coupled its consideration of activities on the day [
of the exercise with an assessment of post-exercise drill reports in making its funda- ;
mental flau findings. LILCO challenges the Licensing Board's reliance on those drill i
') reports, as discussed below in the contention by contention response to Intervenors' ap- l r
peal brief.
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provision in the Plan to be changed because of the Evacuation Route Coordinator's dif-
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fleulties on the day of the exercise. Rather, his performance goes to the implementatioj} of the Plan on the day of the exercise. One might reasonably conclude that he needs more training. But his performance does not suggest that the training program needs to be revamped. It is that basic distinction which the Intervenors, and the Licensing Board, f alled to recognize.
The distinction is supported by case law and regulatory requirements. The Union of Concerned Scientists decision, discussed in some detail in LILCO's brief in chief, rec-ognized the role that exercises play in the NRC licensing determination, coming as they do at the final stage of emergency planning review.S Properly, the NRC is concerned only secondarily with the level of preparedness on a particular day of an exercise.II g/ Intervenors disingenuously suggest that, in Union of Concerned Scientists, the D.C. Circuit disapproved the NRC's position that emergency planning exercises are rel-
) evant to the licensing decision only to the extent they reveal fundamental flaws in emergency plans. Intervenors' Brief at 10-11. Nothing could be further from the truth.
The court held that the NRC could limit the exercise hearing to "issues - not already litigated - that it considers material to its decision." Union of Concerned Scientists, 735 F.2d at 1448. Specifically, the court found that
) section 189(a)'s hearing requirement does not unduly limit the Commission's wide discretion to structure its licensing hearings in the interests of speed and etficiency. For exam-ple, the Commission argues throughout its brief that the ex-ercise is only relevant to its licensing decision to the extent it indicates that emergency preparedness plans are funda-
) mentally flawed. and is not relevant as to minor or ad hoc problems occurrint on the exercise day. Today, we in no
. way restrict the Commission's authority to adopt this as a substantive licensing standard.
M. (emphasis added) (footnote omitted). The court's comment that the Commission
) might still have to defend that standard is nothing but an acknowledgement that, like i any administrative agency's decision, the NRC's hearing standard could be challenged in l court.
I/ An exercise provides only a snapshot of the level of preparedness on the day of an exercise. As the Commission has recognized the level of emergency preparedness
) can vary throughout the term of a license. 46 Fed. Reg. 61,135 col.1 (December 5, 1981). Thus, the Commission has stated that no special significance should be attached to the actual state of preparedness just prior to license issuance. M.
D
6-That is why 10 CFR S 50.54(s)(2Hii) gives licensees four months to correct problems that reduce their state of emergency preparedness below the "reasonable assurance" level; af ter that time, if the deficiency is still not corrected, the Commission can (but need not) order the plant to be shut down or take other appropriate enforcement ac-tion.0/ In the meanwhile, the plant is required to bring its level of preparedness up to
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par. But no suggestion is made that such a deficient state of preparedness necessarily connotes a flaw in the implementability of its plan. Here the issues that the Licensing
[ Board has focused on are not implementability issues but level-of preparedness issues, i 1
Shoreham's license should be conditioned upon bringing the level of preparedness up to par on those issues, subject to Staff confirmation.EI
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Finally, Intervenors take issue with LILCO's argument that the Licensing Board should have analyzed as a threshold matter whether the actions it characterized as "fundamental flaws" would have had a significant impact on public health and safety.
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Intervenors argue that "(n]othing in CLI-86-11 imposes" a requirement that a health and safety inquiry be made. Intervenors' Brief at 17-18. Protection of the public health and safety in nuclear matters is the province of the Nuclear Regulatory Commission,
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and offsite emergency preparedness is nothing more than a subset of health-and-safety jurisdiction. It goes without saying that issues that do not impact the public health and safety are not within the Licensing Board's province. Intervenors, while fond of talis-
) manic incantations of the "reasonable assurance standard" in their arguments on the I
8/ In footnote 10 to their brief, Staff Brief at 17 n.10, the Staff suggests without elaboration that a different "reasonable assurance" finding for emergency preparedness
) may apply to operating plants than to NTOLs. Nothing in the regulations suggests a dif-ferent health and safety standard.
2/ While Intervenors attack LILCO's three part test for a fundamental flaw, saying it goes f ar beyond the definition allowed in CLI-86-11, LILCO submits that its definition
) provides a f ramework for considering whether an exercise reveals problems in plan im-plementability. The definition urged by Intervenors sheds no light upon that inquiry.
)
) 7 cxercise litigation, seem to have forgotten what there is supposed to be reasonable as-
> surance of, o
III. "FUNDAMENTAL FLAWS" FOUND BY THE BOARD ;
) A. Ha,f fic Impediments (EX 41) r In discussing LERO's response to two hypot.mtical roadway impediments during the February 13 exercise, Intervenors make three arguments in reply to LILCO's rea- -
sons for reversal of that portion of the Licensing Board's opinion.N ntervenors' I Brief at 20-28. They argue that:
(1) The Licensing Board had ample factual bases for its conclu- !
) sions that fundamental flaws existed in both the lateral and vertical communication structures in the LILCO Plan and that those conclusions were not inconsistent with the doctrine of t reg judicata:
i (2) The Board's finding of a fundamental flaw with regard to LILCO's response to the two traffic impediments was based
} on the f ailures of multiple players, but even if based solely on i
the perfinmance of one player, was sufficient justification for i finding a fundamental flaw; and l ._
j 1_0/ LILCO has argued on Contention EX 41 that: i i
(1) The Board's finding of a fundamental flaw in the LILCO Plan, because the Pir.n does not permit lateral communica-tions among field wcrkers, is unrelated to exercise events and is legally in error because the Board ialled to accord reg 9 judicata effect to the prior emergency planning decision; (2) The Board erred in finding a fundamental flaw in the
. LILCO Plan based solely on problems resulting from the per-l formance of a single exercise participantt and l
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(3) The Board's finding of a fundamental flaw was, in part, improperly based on events in post-exercise training drills.
Intervenors include a fourth argument in their discussion of Contention EX 41 which concerns the all-encompassing "communleations" fundamental flaw found by the ,
Licensing Board. This "fundamental flaw," which includes numerous events unrelated g to LILCO's response to the two roadway impediments, was discussed in LILCO's March 14 Brief at pages 50-61. The other communication problems that comprise this "fundamental flaw" are discussed in the section on Contentions EX 38 and 39 below. .
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l (3) The Licensing Board did not base its fundamental flaw finding !
on evidence f rom post-exercise drill reports.
As detailed below, these arguments are without merit.
Intervenors begin by arguing that the fundamental flaw found in the LILCO !
Plan's communication scheme involved lateral as well as vertical communications. In-tervenors' Brief at 22-25. Intervenors argue that the LILCO Plan is flawed primarily because of the vertical communications structure. The simple response to Intervenors' argument is that the Board did not find a fundamental flaw in the vertical structure of communications in the LILCO Plan.E Indeed, Intervenors' "vertical" argument is de-void of specific references to the Board's decision, and Judge Frye's dissent establishes that the majority's "fundamental flaw" finding was based on the absence of lateral com-munication capability among field workers, not on the Plan's vertical communications scheme. Judge Frye dissented because he could not find "support in the record for the conclusion that the exercise demonstrated that the communications structure set up by the plan is itself flawed." LPB-88-2 at 254, lie added:
Whila I can readily agree that the plan's vertical communica-tions system is less desirable than a system which permits j both lateral and vertical communications, I cannot conclude that the exercise demonstrated that the plan is fundamentally flawed because of its f ailure to provide for (lateral communi-cations),
i !d. at 255.
As a result of this misreading of the Board's decision, Intervenors then proceed to mischaracterize LILCO's res judicata argument.N _See Intervenors' Brief at 22-25.
l 11/ As LILCO noted in its March 14 Brief, the majority mentions in the training see-tion (Contention EX 50) of LBP-88-2 that it found a fundamental flaw in the vertical communications chain of the LILCO Plan. LILCO Brief at 40 n.29. This single refer-ence is contrary to the express language of the Board's decision on Contention EX 41.
12/ The doctrines of collateral estoppel and res judicata apply in NRC proceedings.
) Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182,7 AEC 210,212-13, remanded on other grounds, CLI-74-12,7 AEC 203 (1974). L
)
i Intervenors portray LILCO's argument as an attempt to bar the Licensing Board from
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having inquired at allinto the adequacy of the communications structure in the LILCO Plan. But what LILCO argued is that the Board should have inquired into the adequacy of the LILCO Plan only in those areas where exercise events provided a f actual basis for raaking that assessment. In the case of the impediments. the restrictions on lateral communications among field workers, on which the Board based its findings, had de-monstrably no effect on the adequacy of LERO's response. As a result, the majority below improperly reversed the prior OL-3 Board decision, not on the basis of exercise f acts but on their disagreement with that decision. In doing so, the Board exceeded its mandate to review exercise results for "fundamental flaws" in the Plan. S_ee LILCO
) Brief at 40-42.
Next, Intervenors attempt to argue that the Board's finding of a "fundamental flaw *' in lateral communications is supported by evidence from Suffolk County police
) witnesses. Intervenors' Brief at 25. The "evidence" cited by Intervenors merely repeats evidence presented in the planning litigation advocating decisionmaking in the field rather than at a centralized location during a radiological emergency. Long Island Lichtine Co. (Shoreham Nuclear Power Station 1; nit 1), LBP-85-12,21 NRC 644,729-30 (1985). The OL-3 Board properly rejected that testimony. Id. at 734-37. Exere!se events shed no new light on this planning dispute, and the cited testimony does not in-clude exercise-specific f acts.
Intervenors attempt, in two ways, to refute LILCO's claim that the Board based its fundamental flaw on the performance f ailures of a single individual responding to
) the impediments. Intervenors' Brief at 25-26. First, they argue that even if the prob-lems with the response to the impediments resulted solely from the actions of the Evacuation Route Coordinator, the LILCO Plan is fundamentally flawed because it depends so heavily on the performance of a single individual. Id. This argument ignores D
O considerable testimony that was presented by LILCO, LILCO Test. Cont. EX 41, ff. Tr.
O 272, at 20-22, and accepted by the Board, LBP-88-2 at 48, that it was FEM A's handling of the impediments, not LERO's organizational structure, that prevented use of avail-able, alternate means of verifying the existence of the impediments. Both accidents would have been almost immediately identified by LERO workers had they actually oc-curred. LlLCO Test. Cont. EX 41, ff. Tr. 272, at 21. Those workers would have re-ported the accident to persons other than the Evacuation Route Coordinator. Thus, the Intervenors' assertion is unsupportable.
Alternatively, Intervenors argue that many LERO personnel, not merely a single individual, committed errors in responding to the impediments. Intervenors' Brief at
~q The record and the Board's conclusion do not support this thesis. The three 26.
inadequacies specifically identified by the Board as the bases for its fundamental flaw finding, LBP-38-2 at 48-50, all involve the actions of the Evacuation Route o"
Coordinator.
Finally, Intervenors contend that the Licensing Board did not rely on post-exercise drill reports as a basis for its fundamental flaw finding on LERO's response to q
the impediments. Intervenors' Brief at 27-28, 64. The Board's opinion demonstrates otherwise. In the very paragraph in which the Board first finds a fundamental flaw in the LILCO Plan as a result of LERO's response to the two impediments, the Board in-eludes a detailed discussion of post-exercise drill reports. S_ee LBP-88-2 at 50-51. In addition, almost five pages of the Board's decision on Contention EX 41 are devoted to a discussion of the same post-Exercise drill reports. There can be no doubt that the Q'
Board improperly relied, at least in part, on these drill reports as a basis for its "funda-mental flaw" determination.
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n)
O B. Public Information (EX 38. 39, and 22,F)
O In addressing the public information contentions, Intervenors overstate the evi-dence that the Board relied on in finding fundamental flaws in the LILCO Plan, downplay the Board's obligation to find significant health and safety eff ects as a pre-9 requisite to finding fundamental flaws, and attempt to avoid the tes e judicata effects of previous litigation on the LERO EBS messages.EI Their arguments should be rejected.
First, Intervenors ascert that a "basic f allacy" exists in LILCO's Brief on the pub-O lie information issues, namely "LILCO's assertion that the Board had to find that each problem, considered in isolation, had to affect the public health and safety." Interve-nors' Brief at 36. Intervenors argue that "[t]his simply is not the test," and that the O
Board understandably felt no obligation "to intone this tautology ritualistically at every turn." Id. Intervenors mischaracterize LILCO's position and misstate the actual test.
LILCO never argued for ritualistic intonation, but instead for a considered judg-O ment of the effect of any alleged problems on public health and safety, and a finding that any problems with the LILCO Plan serious enough to be considered "fundamental
!!aws" be such as to have significant deleterious effects. LILCO Brief at 27,66. It is O
not evident from the Board's decision that it made that inquiry into materialty. If it M/ LILCO has argued on Contentions EX 38,39, and 22.F that:
O (1) The Board erred in admitting Contention EX 39 (Rumor Control) because the alleged f actual bases, even if accepted as true, did not establish the requisite effect on public
' health and safety to constitute a "fundamental flawt" O (2) The Board found fundamental flaws in tha public infor- !
mation area without considering the public health and safety consequences of the identitled exercise problems; and (3) The Board's decision was partly based on a criticism of prescripted EBS messages that were reviewed and accepted O in the prior planning proceeding. ;
LILCO Brief at vil, 20-21, 77-36, 44. l
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} had, the few pr_blems in press conferences, EBS messages, and copying capability that O
occurred on the exercise day would not have properly been characterized as "funda-mental flaws." See LILCO Brief at 31-36.
l Second, Intervenors accuse LILCO of omitting "much of the evidence the Board lO' relied on" and then using the remaining evidence to argue that the Board's decision lacks basis and articulation.N Intervenors' Brief at 29. LILCO disagreest the public information problems were in fact few. See LILCO Brief at 27: LBP-88-2 at 157-58, 167-68.N Intervenors assert that "[t]he Board had before it, and relied on, far more than this." Intervenors' Brief at 29. It is true that the Board "had before it' much more, because the Intervenors alleged a pletilora of public information problems. But is
.O n_ot true (at least it is not apparent) that the Board relled on problems other than those cited by LILCO. Indeed, Intervenors e .ggerate the number of problems actually relied upon by including shortcomings that the Board expressly found were not significant.
.O O 13/ Intervenors' brief on the public information issues points up just how unclear and unen11ghtening LBP-88-2 is. While LILCO believes that it is unclear how many "funda-mental flaws" the Board found in the public information area, LILCO Brief at 27, the Intervenors assert that the PID clearly identifies three, Intervenors' Brief at 28. And whereas LILCO believes that only four unrelated and relatively inconsequential short-comings formed the basis of the Board's fundamental flaw findings, LILCO Brief at 27,
- O Intervenors assert that the Board relied on numerous others, Intervenors' Brief at 29.
Disagreement over' the number of fundamental flaws found and the scope of the evi-
, ; dence relied upon are not particularly noteworthy in and of themselves, since the Ap-
- peal Board can decide such matters for itself. However, such disagreement does show
- that the Board's decision is sufficiently imprecise and unhelpful to permit widely diver-l gent views of what was and was not determined,, and why. See also LILCO Brief at O 63-69.
15/ LILCO accurately summarized the public information problems as follows: (1) failure to furnish timely copies of EBS messages to the media at the ENC and to Rumor I Control; (2) failure of the LERO Spokesperson to answer one question on the details of the impediments, to mention sheltering of cows as part of a summary of current pro-
'O tective actions, and to correct two misstatements by Dr. Brill, a Brookhaven National Laboratory scientist; and (3) three inconsistencies in the wording of EBS messages.
LILCO Brief at 27,35.
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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ A
! For example, Intervenors overstate the number of inconsistencies that the Board found in LERO's EBS messages. Intervenors cite three problems "which were conceded by LILCO," numerous additional problems that were alleged by Intervenors' witnesses, and then the three problems that the Board found "significant." Intervenors' Brief at m
)~' 32-33. Intervenors imply that all of these alleged EBS problems were relied upon by the Board in finding a "fundamental flaw." But the plain f act is that, notwithstanding In-tervenors' argument, the Board found only three "significant" shortcomings in the EBS O messages, and somehow judged them to be "an integral part of the fundamental flaw found under Contentions EX-38 and EX-39." LBP-88-2 at 167-68. The Board did not characterize other alleged problems as significant.
Finally, Intervenors argue that they were not precluded by the doctrine of res judicata from litigating further the prescripted EBS massages even though the virtually identical messages had been litigated in the planning hearings. Intervenors' Brief at 37-
- 38. Intervenors ascert that when the EBS messages were litigated previously, they did not know the context in which the messages would be disseminated, or that LERO "would fail to explain" the language contained in the messages. Id. They say that "the O problems-in the prescripted EBS messages were not focused until actualimplementation during the Exercise demonstrated which messages would be used, in which order, and in conjunction with what other information." Id. at 37.
- O The language of the EBS messages was litigated and approved by the Licensing Board in the prior planning iltigation. LBP-85-12,21 NRC at 698 (Board found that In-tervenors' criticisms of the EBS messages were "bald, unsupported assertions," and that
!O Intervenors had failed to meet their burden of going forward with them). Intervenors' subsequently proclaimed inability to anticipate certain contingencies has nothing to do with the language in the EBS messages. Their arguments here that the previous litiga-O tion should not be deemed final are nothing but feeble excuses to avoid the effects of their previous inability to demonstrate flaws in the EBS messages.
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_ _ ____ ____________ __________ i
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l C. Mobilization of Traffic Guides (EX 40)
) Intervenors' defense of the Licensing Boards' decision on Contention EX 40 - the l
i mobilization of Traffic Guides during the Exercise - mischaracterizes the factual record, the Board's decision based on that record and LILCO's arguments in this ap-peal. See Intervenors' Brief at 38-45. Intervenors begin by inaccurately describing the Board's decision in two important respects. Se_e Intervenors' Brief at 38-41. First, Intervenors imply that the record demonstrates that LERO f ailed to mobilize its traffic
) guides in a timely manner at all three staging areas. In particular, Intervenors suggest that the mobilization of Traffic Guides at the Patchogue staging area resulted in a "near deficiency" rating by FEMA. Id. at 41. This is simply wrong; the Board clearly 3
concluded, contrary to Intervenors' suggestion, that "the mobilization of Traffic Guides f rom Patchogue was timely." LBP-88-2 at P4. This conclusion is important because it does not follow logically that the LILCO Plan is fundamentally flawed when an entire l
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complement of Traffic Guides at one staging area successfully implemented that Plan.
Rather, it is more appropriate to conclude that more practice is needed to it.iprove mo-bilization times at the other two staging areas.
Second, Intervenors cite two isolated manning levels at a misleading time, se_e Intervenors' Brief at 40 and n.43, to give the impression that LERO totally f ailed to achieve a timely mobilization of its Traffic Guides during the February 13, 1986 D
l 16/ ' LILCO has argued on Contention EX 40 that:
(1) The Board's finding of a "fundamental flaw" ignored prof-j fered testimony on the significance of delays in the mobili-zation of LERO Traffic Guides on public health and safety; and (2) The Board incorrectly based its "fundamental flaw" deci-sion on non-exercise-related testimony that was considered 3 and rejected during the prior planning litigation.
LILCO Brief at vi, 23-27, 42-43.
xD
exercise. In so doing, Intervenors have mischaracterized the spectrum of time over
)
which mobilization was accomplished by selecting a single arbitrary point in time of their own choosing.EI An accurate presentation of the mobilization times of LERO Traffic Guides is contained on pages 73-76 of LBP-88-2.
)
Having created an improper impression of the bases for the Board's decision, In-tervenors then attempt to refute LILCO's criticisms of that decision by, in part, mischaracterizing LILCO's arguments. LILCO's primary dispute with the Licensing
)
Board's disposition of Contention EX 40 centers on the test the Board used to decide whether a fundamental flaw in the LILCO Plan was revealed by the actual mobilization of LERO Traffic Guides. LILCO Brief at 23-27. LILCO has argued that the Licensing
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Board based its "fundamental flaw" decision not on considerations of public health and safety as mandated by the Commission in CLI-86-11 but on a rigid, time-based test under which al;, or virtually all, traffic control posts must be manned within an hour of the evacuation order in order for a fundamental flaw not to be found.EI M. at 25-26.
Intervenors do not dispute that the Board's fundamental flaw finding was based on a rigid, time-based test. See Interveni,rs' Brief at 43, 45 n.52. Indeed, they endolse
) that test. M. Intervenors go even further and attempt to defend the Board's decision by contending (1) that LILCO's entire argument is premised on a single sentonce from
) M/ As the Board noted in LBP-88-2, the difference of a few minutes can make a sub-stantial difference in the number of Traffic Guides mobilized. LBP-88-2 at 72-73 n.18.
The Board did not conside" a specific moment in time to be significant in considering the timeliness of the mobilization of Traffic Guides. M.
j M/ On this point, the Staff has mischaracterized LILCO's arguments in the exercise i proceeding. The Staff states that the Board accepted LILCO's test for a "fundamental flaw" - whether mobilization was accomplished in one hour so as to achieve a controlled evacuation. Staff's Brief at 17, 50. In f act, LILCO proposed the one-hour test as a threshold test. If Traffic Guides had been mobilized within the one-hour crite-rion then the Board's inquiry would have ended since the Plan would have been imple-mented exactly as designed. If the standard was not met, then the Board still needed to consider additional evidence to decide whether the delay would have affected public health and safety.
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LDP-88-2 that LILCO has allegedly taken out of context, i_d. at 41-42, (2) that the Board made public health and safety findings on Contention EX 40, i_d. at 42-43, (3) that Board's decision not to consider evidence it had requested on the increase in total popu-lation dose that would have resulted from the delays in the mobilization of LERO Traf-
) fic Guides was correct, i_d. at 43-44, and (4) that LILCO's argument that 19 minutes would have been added to the total evacuation times as a result of delays in the mobili-zation of Traffic Guides "is without merit," i_d. at 44-45. None of these claims is cor-
)
rect.
First, LILCO did not take the statement regarding the Board's refusal to considor the significance of the delay in the mobilization of LERO Traffic Guides on public
) health and safety out of context. See Intervenors' Brief at 41 citing LBP-88-2 at 85. A review of the Board's brief, four-page "Discussion" of the merits of Contention EX 40, l
LBP-88-2 at 84-88, reveals that the Board did not consider the public health and safety
) evidence presented by LILCO, but instead looked only to see whether a time-based cri-terion showed a "controlled" evacuation would have been achieved.
l Second, Intervenors base their claim that the Board considered public health and
) safety on the Board's statement that it agreed with FESTA that the mobilization delays were a "deficiency." Intervenors' Brief at 42. Since a FE51 A "deficiency" is defined in terms of public health and safety, Intervenors reason that the Board must have con-D ducted a proper inquiry into this essential issue. The bare use of the word "deficiency" in the Board's opinion hardly indicates a legally proper consideration of health and safe-ty ef fects.
J Third, Intervenors argue that the Board's failure to consider evidence that the Board itself requested on the change in total population dose that would have resulted from the delay in the mobilization of LERO Traffic Guides was harmless error. Inter-J Venors' Brief at 44. Intervenors base this argument on their assertion that they would l
i D
have offered ovidence that would have refuted LILCO's calculations which showed no j change in total population dose. Intervenors' argument misses the point. The Board was under an obligation to consider relevant evidence in reaching its decision; by failing to consider obviously relevant evidence it committed legal error.N Fourth, contrary to Intervenors' claims, see Intervenors' Brief at 44, the Licens- [
ing Board did not "discredit" and "explicitly reject" LILCO's testimony that the delay in the staffing of traffic control points would only have added 19 minutes to the total l evacuation time. The transcript pages cited by Intervenors (Tr. 1994-2012) contain a colloquy among LILCO witness Lieberman and Judges Paris and Shon concerning the l methodology used by Mr. Lieberman to calculate the extension in total evacuation i
times. That discussion does not evidence a "discrediting" or "rejection" of Mr.
Lieberman's analysis, nor does LBP-88-2. Intervenors also claim that the Board re-l Jected LILCO's 19-minute delay testimony on the basis of Suffolk County's testimony.
)
Intervenors' Brief at 44. Interectingly, the testimony cited by Intervenors in support of this argument is the same "background" testimony which in the next two paragraphs of ,
their brief Intervenors claim played no role in the Board's decision. S_e_e Intervenors' - -
)
Brief at 45. Intervenors cannot have it both way.9.
Intervenors have failed to demonstrate that LILCO's arguments on Contention EX 40 lack merit. Therefore, it must be concluded that the Board committed multiple
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legal errors in deciding Contention EX 40 and should be reversed.
)
19/ Previously in the Shoreham proceeding, the Staff moved to strike testimony that included the results of polls of volunteer firemen, taken on behalf of Suffolk County, on the issue of role conflict. The Licensing Board g:' anted the motion, but this Board re-
) versed remanding the role conflict issue for further evidentiary proceedings including consideration of the stricken testimony. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832,23 NRC 135,153-54 (1986).
)
b D. Training (EX 50)
) In their appeal brief Intervenors have done little more than paraphrase the Board's own discussion of the training issues, bolstering their summaries of the Board's discussions by simplifying LILCO's objections to it and mischaracterizing the depth of the Licensing Board's decision. In doing so, they paint LILCO as a myopic entity inca-pable of understanding what all other parties have seen clearly: that exercise events proved the LILCO training program to be inadequate. That conclusion is not supported b by the record.
- 1. Licensing _ Board Jurisdiction In opposing LILCO's appeal, Intervenors support the Board's review of the LILCO D training program against regulatory standards. Intervenors argue that the Licensing Board lef t cpen the adequacy of the training program in its emergency planning dect-sion. But the adequacy of the training program is not any different from the adequacy D of any of the other aspects of emergency planning for Shoreham that were considered in LBP-83-2. Allissues of emergency planning were subject to the ex?rcise determina-l l tion; if exercise results had pointed to systemic problems in the Plan, the issue was D litigable. The Board improperly conferred jurisdiction upon itself to look at any training matter it wished, without first making the determination that the exercise ac-tivities shed light on a systemic problem in the training program. The Licensing Board O clearly exceeded its jurisdiction in reviewing the entire training program against regu-latory standards, rather than scrutinizing the exercise to determine de novo whether it
' revealed patterns of behavior that suggested a problem with the training program itself O
and a consequent inability to protect public health and safety.
Moreover, contrary to Intervenors' assertions, LILCO is not the only party to suggest that the Licensing Board was not charged to re-review the entire LILCO I
training program; the Staff agreed in its findings that that would amount to relitigation l
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D of planning issues resolved in the PID, Staff Proposed Findings at 147, s_eg also Staff Brief at 51, and the approach was rejected by Judge Frye in his dissent. LBP-83-2 at 257. While Judge Frye accepted the "ultimate conclusion" on Contention EX 50, id. at 258, he characterized the majority's analysis as having "reviewed the training program e
for adequacy" and he rejected that review. Seg LBP-88-2 at 257-258. Thus, there ex-ists more than just LILCO's support for the view that the Board's scope of review went beyond its mandate.
- 2. Standard of Review Intervenors make much of the Licensing Board's statement in the PID that it had in fact rejected any standard of "perfect performance" on the day of the exercise as J
the training standard. In fact, the Licensing Board adopted the Intervenors' approach by looking at the performance of individuals, rather than of the organization as a whole, in determining whether fundamental flaws existed in the training program. In-tervenors sum up their view in ."'is fashion: "(1]n other words, the proof of the training program is in the Exercise performance." Intervenors' Brief at 53. Intervenors also cite to the characterization of problems identified by FEMA in its Post-Exercise O ,
Assessment as "training" to support its view that there is a fundamental flaw in the training program. Intervenors' Brief at 55, se_g FEM A Exh. EX 5 at 73.N Cach of these characterizations misses the mark, as shown below.
O The exercise performance that Intervenors chose to focus on in its contentions,
! in the litigation, and in its appeal brief is the performance of individuals, not of the LERO organization. Intervenors' Brief at 63. But it is the overali performance of the organization, not isolated performances of individuals, that sheds light on the efficacy 2_0/
Intervenors cite the Staff's conclusion as well, that "the LERO training program O was not equal to the task, at least on the day of the exercise." Intervenors' Brief at 55, s_eg Staf f Findings at 176. In its brief on appeal, the Staff concludes that no fundamen-tal flaws in the training program were revealed by the Exercise.
O
) of a training program. The Board erred in accepting a standard that looked at individu-al performance, as urged by Interveno s, rather than ct organizational performance, as urged by LILCO. Intervenors thus are content to list specific instances of allegedly poor individual p "formance, without tying them in any way to a structural problem in D the training program itself.
- 3. Supporting Evidence Intervenors assert that the Licensing Board's decision was well-supported. They point to the fact that the Board devoted "over 80 pages to detailing its findings and conclusions concerning the efficacy of LILCO's training program,"Intervenors' Brief at 45, see LBP-88-2 at 172-253. They state that the Board considered "20 other examples n
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of LILCO personnel falling to follow their procedures or evidencing a lack of basic knowledge of the Plan" taken from the FEMA report, to conclude that the training pro-gram was ineffective. They add that the Board "listed 10 other examples from the Ex-ercise" to demonstrate communications problems, and "set forth 11 other examples of poor judgment drawn f rom incidents during the Exercise" to find that LILCO personnel were not effectively trained to exercise independent or good judgment. See Interve-nors' Brief at 47-49 L7P-88-2 at 185-189,195-98, 206-211, arid 220-222. All of the ex-l amples relied upon by Intervenors are a result of the Licensing Board reiterating Inter-venors' own contentions, which listed various individual activities in response, rather O than any analysis or conclusions by the Board.
- A careful review of LBP-88-2 reveals that the main thrust of the Board's consid-eration rests on the Evacuation Route Coordinator's response to the traffic impedi-ments, which is given as the main example for concluding in Contention EX 50.A that LERO could not respond to unrehearsed and unanticipated situations; in 50.B that the a
training program had not instructed personnel to follow and implement the LILCO Plan O and procedures; in 50.C that the LERO program had not taught personnel to 0
) communicate necessary and sufficient data and information; and in 50.E that the LERO
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training program had not trained personnel to exercise independent or good judgment.
Thus, the single mistake of one individual during the exercise has been transformed into an assertedly systemic pattern of problems in communications, training, exercise of
)
good judgment, and an inability to respond to unrehearsed and unanticipated situations.
How many fundamental flaws in a plan can a single individual's single mistake support?
It would do to look at the Board's list of unrelated behavior that Intervenors
) refer to, but do not describe, to support the Board's decision on training. They include such activities as: excessive route alerting times, delayed dispatch of personnel, exces-sive time in monitoring personnel, and failures to update status boards (Contention
) 50.B, LBP-88-2 at.185-86); no success in contacting FA A to direct air traffic, mistakes in reporting of dose projection as 7000 meters rather than 700 meters that was cor-rected in five minutes, and f ailure to contact the Long Island Railroad to direct trains
) (50.C, LBP-88-2 at 196-98); delayed operating of ENC until 805 because not all staff were present, and delayed press briefings af ter EBS messages had been broadcast (50.E.
LBP-88-2 at 220-22); and Traffic Guides at two traffic control points who did not know
) dose authorization units, Traffic Guides at two traffic control points who aid not fully understand the chain of command for excess exposure, and two of the eight Traffic Guides observed by FEMA who did not fully understand the difference between low-J range and mid-range direct reading dosimeters (50.H, LBP-88-2 at 237-38). This can
' hardly be said to be viewed as overwhelming evidence of a problem in the Plan, and In-tervenors do not bother even to list them in their appeal brief.
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- 4. Post-Exercise Drill Reports O
While Intervenors assert that "the proof of the training program is in the exer-cise performance," even a cursory review of the training section of the Licensing Board's opinion reveals an emphasis on post-exercise drill reports. These drill reports
.C4 cannot be used to support findings of flaws in the training program because of their very nature. They are part of the training program. LILCO training drills are not tests in the way the exercise is a test. They are drills to expose problems that require fur-O ther attention. They are used as training tools. They are instructive for that purpose.
But they are not similar in kind to an exercise report, and comparing them to exercise results is truly mixing apples and oranges. The Licensing Board rejected LILCO's argu-ment about the drill reports and inappropriately allowed them into evidence.N A l-lowing the Licensing Board to rely upon the drill reports to bolster findings of inadequacies in a plan following an exercise is not probative of the skills tested in the 0
exercise. It also will chill the ability to train and as a po!!cy matter should be re-jectec.E Intervenors argued strenuously for admission of drill reports and they support in O
their appeal tirief the Licensing Boaro's reliance upon them. Intervenors need the drill reports. Their allegations in Contention EX 50, and the Licensing Board's findings alone
.O 21/ Intervenors argue in their appeal brief that LILCO did not object to the admit-tance of drill reports into the proceeding and that therefore their objection has not been preserved on appeal. They are flatly wrong. LILCO objected repeatedly to the use of drill reports for any purpose other than to show that the "fixes" proposed by LILCO to remedy identified "deficiencies" and "areas requiring corrective actions" were
- O effective. Tr. 5s69-70,5811; see also LILCO Brief at 47.
12/ In supporting the Board's use of post-exercise drill reports in its brief on appeal, the Staff does not address the fact that drills are different in kind from FEMA graded exercises. 5__d Staff Brief at 55-57. In addition, the Staff's attempt to analogize QA/QC audits to training drills is inapt. QA/QC audits are formal review proceedings.
O By comparison, training drills are, in large part, educational activities. The proper analogy to a later QA/QC audit is a FEMA graded remedial exercise. No such exercise has been held at Shoreham.
O
h without those drill reports, do not support a finding of systemic problems in the I
)
training program.' It is only when exercise activities are inappropriately coupled with -
the drill reports that one can even begin to make an argument of a pattern. Thus, at the same time that Intervenors suggest that the Licensing Board's decisions were really
) based on the exercise activities and not the drill reports, they argue strenuously that the drill reports were properly admitted. If one looks at the Licensing Board's dis-cussion of training, it is clear that the drill reports pervade the Board's decision. The
) Doard stated at the outset that the standard it would use in reviewing the training pro-gram was a look at the regulations, a look at systemic problems or defects, by noting the performance of individuals at the exercise, and through the post-exercise drills.
) LBP-88-2 at 179. Reliance on drill reports at all was improper: reliance on them to the extent done by the Licensing Board in LBP-88-2 led to a prejudicial and incorrect re-sult.
) 5. LERO as Amateurs Intervenors argue that "(t]he Board did not impugn the credentials of LERO members." Intervenors' Brict at 60. The Board's unwarranted aspersion of LERO workers as amateurs, which pervades the decision, was clearly pejorative, resulting in a
\
conclusion that LERO may very well be untrainable. Intervenors' attempt to gloss the Board's statements as innocuous is simply wrong.
Intervenors also argue that "if LILCO had evidence that LERO is composed solely or even in large part, of . thoso .LILCO field workers who allegedly faced ' life-threatening situations' daily, and that the skills they have developed in these situations D.
are transferable to implementing LILCO's Plan, LILCO was free to present it." Interve-nors' Brief at 60-61. LILCO did so during the planning phase of this proceeding. The issue of the nature of the training program generally or of the LERO organization was J no longer in dispute. It is only because the Licensing Board took those issues upon 1:self D
)
to revisit during the training portion of their decision that the question of the nature of
)
the LERO organization reappeared.
In addition, LILCO did offer evidence in the Exercise litigation about the perfor-mance of other organizations (presumably the Board would have considered these to be
) "professionals" because they involved exercises where governments, not utility workers, responded) and the Boaro refused to allow it, deeming it irrelevant. LILCO Brief at 62-63; LILCO Findings at 188-89. The purpose of that evidence was to show that the
) LERO response was in line with responses by other offsite emergency organizations for other power plants. This was information that might have borne on the Board's deter-mination that LERO was made up of "amateurs."
) Despite Intervenos' protestations, it is clear from the Licensing Board's decision that any activity that was less than perfect performance on the day of the exercise was put into the hopper of a "fundamental flaw" in training. This convenient niche relieved
) Intervenors and the Board from Grticulating precisely what problem, if any, existed with the training program, and how it was connected to the behavior observed on the day of the exercise. The Board seemed incapable of distinguishing between areas where
) individual performance on the day of the exercise may suggest that additional training for isolated individuals raight be fruitful, and general training deficiencies resulting in a pattern of untrained emergency workers.
D 1
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)
IV. conclusion
) For these reasons, the Appeal Board should reject Intervenors' arguments in their brief on appeal from LBP-88-2, and reverse the Licensing Board's decision in that opin-ion.
)
Respectfully submitted, d AA/
1[athy'E.B./ficClesk'ef' Lce B. Zeegin Scott D. N atchett
( k 3 HUNTON & WILLIAMS 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 (804) 788-8200 9 DATED: May 6,1988 1
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t LILCO, May 6,1988 C0CKETED USNRC
'88 luY -9 P8 :39 CERTIFICATE OF SERVICE OFFICf. N inf DAtM 00CKEimG ). SE 4vicf.
BRANCH In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-5 I hereby certify that copies of LILCO'S MOTION FOR LEAVE TO FILE REPLY BRIEF and LILCO'S REPLY TO INTERVENORS' AND NRC STAFF'S OPPOSITION TO LILCO'S APPEAL FROM LBP-88-2 were served this date upon the following by Federal Express, as indicated by an asterisk, or by first-class mail, postage prepaid.
Christine N. Kohl, Chairman
- Commissioner Thomas M. Roberts Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board 1717 H Street, N.W.
U.S. Nuclear Regulatory Commission Washington, DC 20555 Fif th Floor (North Tower)
East-West Towers Commissioner Frederick M. Berntha!
4350 East-West H!ghway U.S. Nuclear Regulatory Commission Bethesda, MD 20814 1717 H Street, N.W. -
Washington, DC 20555 Alan S. Rosenthal
- Atomic Safety and Licensing Commissioner Kenneth M. Carr Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Str?et, N.W.
Fif th Flcor (North Tower) Washington. DC 20555 East-West Towers 4350 East-West Highway Commissioner Kenneth C. Rogers Bethesda, MD 20814 U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Dr. W. Reed Johnson
- Washington, DC 20555 Atomic Safety and Licensing Appeal Board James P. Gleason, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board 115 Falcon Drive, Colthurst 513 Gilmoure Drive Charlottesville, VA 22901 Silver Spring, Maryland 20901 Lando W. Zech, Jr., Chairman U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, DC 20555 n _ _ . .
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! Dr. Jerry R. Kline Fabian G. Palomino, Esq. *
! Atomic Safety and Licensing Richard J. Zahnleuter, Esq.
Board Special Counsel to the Governor U.S. Nuclear Regulatory Commission Executive Chamber East-West Towers, Rm. 427 Room 229 4350 East-West Hwy. State Capitol i Bethesda, MD 20814 Albany, New York 12224 Mr. Frederick J. Shon Alfred L. Nardelli, Esq.
Atomic Safety and Licensing Assistant Attorney General Board 120 Broadway U.S. Nuclear Regulatory Commission Room 3-118 East-West Towers, Rm. 430 New York, New York 10271 4350 East-West Hwy.
Bethesda, MD 20814 George W. Watson, Esq.
- William R. Cumming, Esq.
Secretary of the Commission Federal Emergency Management Attention Docketing and Service Agency Section 500 C Street, S.W., Room 840 U.S. Nuclear Regulatory Commission Washington, D.C. 20472 1717 H Street, N.W.
Washington, D.C. 20555 Mr. Jay Dunkleberger New York State Energy Office '
Atomic Safety and Licensing Agency Building 2 Appeal Board Panel Empire State Plaza U.S. Nuclear Regulatory Commission Albany, New York 12223 Washington, D.C. 20555 Stephen B. Latham, Esq.
- Adjudicatory File Twomey, Latham & Shea Atomic Safety and Licensing 33 West Second Street Board Panel Docket P.O. Box 298 U.S. Nuclear Regulatory Commission Riverhead, New York 11901 Washington, D.C. 20555 Mr. Philip McIntire Edwin J. Reis, Esq.
- Federal Emergency Management U.S. Nuclear Regulatory Commission Agency One White Flint North 26 Federal Plaza l 11555 Rockville Pike New York, New York 10278 I
Rock': 'le, MD 20852 l Jonathan D. Feinberg, Esq.
Herbert H. Brown, Esq.
- New York State Department of Lawrence Coe Lanpher, Esq. Public Service, Staff Counsel Karla J. Letsche, Esq. Three Rockefeller Plaza t Kirkpatrick & Lockhart Albany, New York 12223 South Lobby - 9th Floor 1800 M Street, N.W.
Washington, D.C. 20036-5891
Y s
Ms. Nora Bredes . E. Thomas Boyle, Esq.
Executive Coordinator Suffolk County Attorney ,
Shoreham Opponents' Coalition Building 158 North County Complex 195 East Main Street Veterans Memorial Highway Smithtown, New York 11787 Hauppauge, New York 11788 Evan A. Davis, Esq. Dr. Monroe Schneider Counsel to the Governor North Shore Committee Executive Chamber P.O. Box 231 State Capitol Wading River, NY 11792 Albany, New Yor't 12224
$ /
fa trif E.B 1e11esk y ""
HUNTON & WILLIAMS 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: May 6,1988 l
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