ML20154E463
| ML20154E463 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/14/1988 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#388-7128 OL-3, NUDOCS 8809190006 | |
| Download: ML20154E463 (101) | |
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i 1 UNITED STATES O NUCLEAR REGULATORY COMMISSION In the matter of: )
)
LONG ISLAND LIGHTING COMPANY ) Docket Number 50-322-OL-3 (SHOREHAM NUCLEAR POWER STATION, UNIT 1) .I O i i i i ( Pages: 1 through 98 i Place: Bethesda, Maryland l i Date: September 14, 1988 , i.
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m 0 1 UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD g-).
'u In the matter of: )
) Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY )
)
(SHOREHAM NUCLEAR POWER STATION, ) UNIT 1) )
)
Wednesday, September 14, 1988 Public Hearing Room 4350 East West Highway Bethesda, Maryland The above-entitled matter came on for hearing, pursuant to notice, at 2:00 p.m. BEFORE: HONORABLE THOMAS S. MOORE, ALJ Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission () Washington, D.C. HONORABLE ALAN S. ROSENTHAL, ALJ Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commitssion Washington, D.C. HONORABLE HOWARD A. WILBER, ALJ Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. NRC STAFF MEMBERS: RICHARD G. BACHMAN, ESQ. EDWIN REIS, ESQ. Heritage Reporting Corporation (202) 628-4888
2 APPLICANTS LILCO: (. JAMES N. CHRISTMAN, ESQ. MARY JO LEUGERS, ESQ. Hunton & Williams 707 East Main Street Richmond, Virginia 23212 INTERVENORS (Suffolk County) : DAVID CASE, ESQ. CHRISTOPHER M. McMURRAY, ESQ. Kirkpatrick & Lockhart South Lobby, 9th Floor 1800 M Street, N.W. Washington, D.C. 20036-5891 STATE OF NEW YORK): RICHARD J. ZAHNLEUTER, ESQ. Deputy Special Counsel to the Governor Executive Chamber, Room 229 Albany, New York 12224 O l Heritage Reporting Corporation (202) 628-4888 O
3 1 PROCEEDINGS (~) 2 JUDGE MOORE: The Appeal Board is hearing argument (J 3 this afternoon in the case of LILCO v. Town of Southamoton 4 from the Licensing Board's May 9, 1988 partial initial 5 decision concerning the suitability of LILCO's reception 6 centers that will be used by the public in the event of a 7 radiological emergency. 8 The argument will be governed by the terms of our 9 previous order of August 12th. As stated therein each party 10 or each side rather, will be allowed forty minutes for 11 argument. 12 We'll begin by having Counsel introduce themselves 13 for the reporter. We'll start with the Staff. 14 MR. BACHMANN: My name is Richard G. Bachmann. 15 I'm Counsel to NRC Staff. With me at the table if Mr. Edwin { 16 J. Reis also of the Staff. 17 MR. CHRISTMAN: My name is Jim Christman. I'm l 18 representing the applicant, Long Island Lighting Company. 19 Also at the table with me is Mary Joe Leugers, also of my 20 law firm. 21 MR. CASE: I'm David Case. The law firm of i 22 Kirkpatrick & Lockhart, representing suffolk County and 23 arguing on behalf of the Government. Also representing 24 Suffolk County is Mr. Chris McMurray of Kirkpatrick & 25 Lockhart. Heritage Reporting Corporation (202) 628-4888
c 4 1 MR. ZAHNLEUTER: I'm Richard J. Zahnleuter. I g 2 represent the State of New York and Governor Cromwell. And 3 Mr. Case will be presenting oral argument on behalf of the 4 State of New York today. 5 JUDGE MURRAY: The appellants may begin. 6 MR. CASE: Thank you. 7 Initially, let me indicate that I'd like to 8 reserve twelve minutes for rebuttal of the forty minutes 9 allotted to the Government. 10 The Government's brief outlines four issues to be 11 decided by the Board. It is my intention to focus on two of 12 those issues; 1) the Board's planning basis decision and how 13 that is in error and 2) how the Board erred in entering 14 findings without any FEMA findings being in the record. 15 Prior to reaching those two critical issues before O 16 the Board, there is one issue on one factor which overrides 17 the consideration of even those two issues and that is, the 18 recent decision in the case of Town of Hemostead v. LILCO. 19 Now the holding of this case is that Belmore 20 facility uses a reception center on the LILCO's plant is a 21 facility which, when used as a reception center, violates 22 the local zoning law. The effect of that decision is to 23 prohibit the use of the Belmore facility in the LILCO plant 24 as a reception center. 25 I intend to briefly discuss here why it is that Heritage Reporting Corporation (202) 628-4888
o 5 1 the Board should consider this decision now, in making it's (} 2 3 review of the OL3 reception center decision and why that New York Supreme Court decision is dispositive of this case. 4 How, there's no need has been implied to reopen 5 the record in this case in regard to that decision. In an 6 appellate tribunal, like this tribunal is, must apply them 7 all that exists at the time it reviews the lower tribunal's 8 decision. And the law which presently exists at this time, 9 is that decision of the New York State Supreme Court that in i 10 fact, LILCO's use of the Belmore facility as a facility 11 center violates the local zoning laws. 12 JUDGE ROSENTHAL: Mr. Case, two questions. Number J 13 one, has the Court entered an order on it's decision yet? 14 MR. CASE: The Court has not, Mr. Rosenthal. ; 15 However, we believe that the effect of the opinion is clear . 16 and indeed the proposed order that LILCO submitted -- right 17 now, there order's been submitted by the Town of Hempstead 18 and LILCO and submitted it's own proposed order. The order 19 which LILCO submitted in fact, indicates that the use of . 20 Belmore facility as a reception center is prohibited. 21 So, at a the very minimum, that order will be 22 entered. , r 23 JUDGE ROSENTHAL: All right, second question. Am [ 24 I correct in my understanding that there is no pending 25 litigation respecting the availability of either of the ; Heritage Reporting Corporation , (202) 628-4888 O >
6 1 other two reception centers?
,-~ 2 MR. CASE: That is correct. The record indicates 3 and the partial initial decision indicates outstanding two 4 determinations by the other effected localities that there's 5 a violation of zoning law, but there's been no suit filed as 6 of today.
7 As I indicated, we don't believe that there's any 8 need for any motion to reopen the record. This Board must 9 give that case full faith and credit and need present no 10 evidence as to the decision because it's a recorded 11 decision. 12 The Board must consider the case of Town of 13 Hemostead v. LILCO just as it would consider the case of 14 Marburv v. Madison or Brown v. Board of Education. It's 15 applicable in this proceeding without any motion to reopen 16 and we believe the clear effect of this decision is to 2 17 require that the Board reverse -- remand the reception 18 center pleading. 19 JUDGE ROSENTHAL: What is the capacity of the 20 other two reception centers collective; for monitoring 21 purposes? 22 MR. CASE: We believe that the record would I
- 23 indicate, and opposing Counsel have argued, that the 24 capacity of those two receptions centers would handle a 25 thirty percent evaluation.
Heritage Reporting Corporation (202) 628-4888
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7 1 However, it's the Government's position that 73 2 that's simply not determinative. What we have here Mr. () 3 Rosenthal and other members of the Board, a reception center 4 plan integrated between three reception centers, was in 5 fact, submitted by LILCO; the parties litigated concerned 6 those three reception centers, and the Board decided on the 7 three reception center plan as integrated. 8 JUDGE ROSENTHAL: Well, even if it cited on that 9 basis, the Board also determined, did it not, that twenty 10 percent was a reasonable figure for the planning estimate 11 and if that finding is upheld, I realize that the Government 12 is challenging it -- 13 MR. CASE: That's correct. 14 JUDGE ROSENTHAL: -- if that finding is upheld, 15 would it not necessarily follow that the elimination of the O 16 Belmore facility would be in the vernacular and no never 17 mind. 18 In other words, doesn't the significance of the 19 elimination of Belmore hinge entiroly upon the viability of 20 the Licensing Board's determination on the twenty percent 21 planning estimate? 22 MR. CASE: We don't believe it does. 23 JUDGE ROSENTHAL: All right, well explain why not? 24 MR. CASE: I'd be glad to. 25 What's happened is there's a void in the record; Heritage Reporting Corporation (202) 628-4888
8 1 where there was a three reception center plan, there's now 2 two. There's a group of people, roughly one-third, who have {~} 3 no where to go. Where LILCO determines to send them when 4 they fill this void in the record; whether it be to split S them up between the other two reception centers; whether it 6 be send them to some third facility that we have information 7 about, we don't know. 8 So, even assuming and this is all speculation, 9 that LILCO does in fact, decided to split it this 10 outstanding group of evacuees and send them to the other two 11 reception centers, we don't know how that will impact 12 traffic. We don't know how that will impact the capacity 13 and facilities. 14 For instance, if many are sent to Roslyn, a small facility, it may be and this is LILCO's burden here to show,
) 15 16 that they can still meet the reasonable assurance findings.
17 So, even assuming and we wouldn't concede for a 18 minute that in fact a twenty percent decision is accurate, 19 even in that situation, we have a void in the record here. 20 We need to understand how LILCO intends to fill that void in 21 terms of where these people are going to got how that will 22 impact traffic, how that will impact whether the reception 23 centers they're sent to, and it may not be those two, how 24 they can handle those individuals. 25 JUDGE ROSENTRAL: So, you are suggesting that if Heritage Reporting Corporation (202) 628-4888
9 1 the twenty percent figure were to be upheld and again, I {} 2 3 appreciate the fact that the Government's attached that, necessarily there would have to be a remand to the Licensing 4 Board to determine what impact upon traffic, etc. would flow 5 from the availability of the two instead of as previously, 6 the three reception centers. 7 Is that -- that's what you're saying? 8 MR. CASE: That's exactly right. There'r a void 9 now. The Licensing Board must consider what's going to 10 happen to this one-third of the potential evacuees, where l 11 they're going, what the effects of that will be in terms of 12 traffic, in terms of capacity at the reception centers. 13 There's a whole host of issues that may be considered t 14 depending on what LILCO does in their planning with these i 15 group of individuals who at present, have nowhere to go for 16 a reception center. l 17 JUDGE ROSENTHAL: Turning if we might to the 18 twenty percent figure, I'm interested in knowing whether the 19 Governments accept the prior estimate that there would be 1 20 approximately twenty percent of the population that would 21 require shelter? i 22 If I recall correctly, there was - previously 23 there was that estimate which I think had the American Red 24 Cross's endorsement. Am I righc about that? 25 MR. CASE: In terms of pure sheltering -- ; I Heritage Reporting Corporation (202) 628-4888 - O i l i I
10 1 JUDGE ROSENTHAL: Yes, I'm talking about pure (^} V 2 sheltering that -- well, obviously the people that would 3 obtain sheltering would also be monitored and if necessary, 4 supposedly contaminated. 5 MR. CASE: I understand. 6 JUDGE ROSENTHAL: And if you accept that -- I want 7 to know if you accept that twenty percent figure? 8 MR. CASE: I understand. I will say that the 9 Government believes that twenty percent was a sheltering , 10 number. Seemed to have historical backing that is adequate, 11 but to use that in any sense as a basis for any sort of 12 decision as the number of people who arrive for monitoring, 13 the Government's opinion and we believe this Board 14 previously held, is simply mixing apples with oranges. 15 It's attempting to figure out how many oranges are 16 going to grow by counting how many applies that were in past I 17 seasons. 18 JUDGE WILBER: The minimum would be the twenty j 19 percent though. You're not arguing that, are you? 20 MR. CASE: Oh, the minimum would be twenty 21 percent. That would be the Government's position. 22 JUDGE WILBER: So, they aren't really apples and 23 oranges? 1 24 MR. CASE: There may be some overlap and in terms 25 of comparing -- trying to forget the number of monitoring 4 Heritage Reporting Corporation (202) 628-4888
r 11 1 based on the number of shelters. In that sense, you're 2 comparing apples with oranges, but yes, there may be some 3 overlap in terms of people who go for sheltering also 4 require monitoring and would in fact, monitor. 5 But, we would argue that twenty percent would be 6 the minimum number that would have to be accounted for in 7 considering the number who would come to the Reception 8 centers. 9 JUDGE ROSENTHAL: I have one other preliminary 10 question. I'm going to ask this also of Mr. Christman. 11 In the applicant's brief at page 12, footnote 3 12 refers to a LILCO commitment to more than double the twenty 13 percent planning basis to son.e 46.6 percent. 14 Now, I've been unable to find in the record where 15 that commitment is. It seems to me a very significant one, 16 if in fact, it was made. 17 It is your understanding that there was that kind 18 of commitment prior to the applicant and if so, why are we 19 talking about a twenty percent planning standard anyway, or 20 estimate? 21 MR. CASE: Well, I didn't understand that to be a 22 commitment except in, there's testimony in the record and 23 there was testimony concerning the ability of LILCO to 24 expand by calling on other resources over time to bring in 25 INPO monitors, to bring in people from Brookhaven and set up Heritage Reporting Corporation (202) 628-4888 n
12 i more monitoring facilities, which they argued reach a r~N 2 greater percentage of the people who arrive there. U 3 But, the reason we're talking about twenty percent 4 is, from the beginning, that has been the number that has 5 been the focus of this litigation because LILCO has relied ; 6 on that. FEMA advocated that through the Krimm memorandum. 7 The Staff advocated it and the Board accepted twenty 8 percent, so that's why the focus -- I 9 JUDGE ROSENTHAL: No, I understand that. I don't 10 to be making a newer argument for you -- 11 MR. CASE: Right. 12 JUDGE ROSENTHAL: -- but I would have thought that 13 if LILCO itself represents, that is has committed itself to 14 46.6 percent planning basis, that you'd bo in telling us 15 that the Belmore facility's elimination is extraordinarily 16 significant and that we're past the twenty percent planning 17 estimate to begin with. 18 MR. CASE: It's the position -- the intervenors 19 and I always appreciate any help in argument -- 20 JUDGE ROSENTHAL: I saw this. I assume you read 21 that same footnote and I was just wandering what your 22 reaction was. 23 MR. CASE: It's the position of the Intervenor's 24 and Government's that, no matter was the planning basis is, l 25 be it twenty percent, thirty percent, forty percent, the ! l Heritage Reporting Corporation (202) 628-4888 i l
13 1 fact that we now have one the facilities that was to serve fs 2 the public, serve the evacuees as been eliminated as a N#l 3 possibility. We don't know what's going to happen to the 4 people who would have gone there. Where they' re going to 5 go. How they're going to get there. No matter what the 6 planning basic is, there's a void in the record and this has 7 to be remanded for the Licensing Board to take evidence. 8 JUDGE ROSENTHAL: Well, now with respect to the 9 three facilities that were in the picture when the Licensing 10 Board rendered it's decision, the Licensing Board really 11 have precise information as to who would go to Belmore and 12 who would go the second facility and who would go the third 13 one. I mean you talk as if this was all really determined 14 with the three facilities and now it's all up in tre air as 15 to traffic patterns and who goes where, since there'a only 16 two facilities. 17 MR. CASE: Yes, sir. As part of the LILCO p.an, 18 it's divided up into zones and certain zones would be 19 directed to repot.t to certain reception centers and in fact, 20 by eliminating one of the reception centers, you have to 21 know what's going to happen to the people in these zones 22 that were otherwise going to Belmore. 23 That's what we can only speculate about until 24 ther<'s a plan submitted, which addresses that issue. What 25 we're talking about in front of this Board are a two Heritage Reporting Corporation (202) 628-4888 O
14 1 reception center facility, is simply not the facility that () 2 was litigated in front of the Licensing Board in this cat >, 3 which was a three reception center plan and that's why we 4 believe that no matter what.the planning basis is, this case 5 must be remanded. 6 JUDGE WILBER: Does this mean that you say 7 certain sectors were assigned to Belmore and sectors 8 assigned to the other reception centers, then in the event 9 of an accident that encompassed only some of those sectors, 10 they would only activate one of these centers. Is this what 11 you're saying? 12 MR. CASE: I don't think that question ever came 13 up in examination on the plan. The way the plan was set up 14 was that -- 15 JUDGE WILBER: But, you're telling me, Sectors A, 16 B, and C are assigned to Belmore and -- 17 MR. CASE: It's conceivable that they would direct 18 certain people from certain sectors. If you add to the 19 impact in only one sector, that slice of the sector would be 20 directed simply to go to Hicksville or go to Belmore or go 21 Roslyn, depending -- obviously depending -- 22 JUDGE WILBER: Can you tell me where that is in 23 the record? 24 MR. CASE: I don't know whether that is in the 25 record. I don't think we ever addressed that question. If Heritage Reporting Corporation (202) 628-4888
15 1 there was an accident which only gave a certain slice of the g 2 EPZ; whether people would be directed to certain reception 3 centers. 4 An 'Jie plan stands now, the population is divided 5 into the recep. ion centers, and the traffic patterns if you 6 analyze, given that certain people from certain parts of the 7 EPZ will go to certain facilities. 8 JUDGE ROSENTHAL: Turning to the liability of the 9 twenty percent estimate, that does derived some support does 10 it not, from the Krimm memorandum? l 11 MR. CASE Well, we don't believe that the Krimm 12 memorandum provides any support for that. 13 JUDGE ROSENTHALt Essentially, the Krimm . 14 memorandum was based on sheltering data. The FEMA testimony 15 was to that effect and the Board acknowledged that. t ( ) 16 In it's opinion, the Board said, we recognize that 17 this is based on sheltering data, however we believe it's ] 18 -- given the best judgment of the professJonals, it's all 4 19 right. It can form the basia for a defensible finding here. 20 JUDGE ROSENTRAI.: Aren't FEMA the experts in this
- 21 area? Shouldn't there be considerable deference given to 22 it's conclusions as to given a particular emergency; how 23 many people are likely to seek sheltering or monitoring?
, 24 HR. CASE: We don't believe there should be 25 deferent given to FEMA when their conclusions are baned on Meritage Reporting Corporation (202) (28-4888 O
n 16 , 1 data that this Board previously found was simply not 2 relevant to the question ano the fac* %*t FEMA took l 3 irrelevant data and then in some, unhiown way, we have no , 4 idea of the rigor of how they did it -- the seat of the 5 pants, a fudge factor adjustment here -- it took a twenty f i' 6 percent basis ard fudged it up to thirty pe: cent. 7 That gives no indication -- there's no rigor to 8 that as to why in the world that would in any way, be a 9 valid indication of the number of people who would show up 10 for monitoring? 11 JUDGE ROSENTHAL: Did Krimm testify? 3 12 MR. CASE: Mr. Krimm did not testify. One of the i 13 points we made in our proposed findings of fact, was that ( 14 Mr. Krimm did not testify. No one who was involved directly i in the preparation of the Krimm memorandum, did testify. (:) 15 16 No one who was involved directly in the 17 preparation of the planning standard, J-12 testified. ! 18 JUDGE ROSENTKAL: Now, the Krimm memorandum was 19 introduced into evidence? 20 MR. CASE: Yes sir. 21 JUDGE ROSENTHAL: And was there any endeavor mada i 22 by the Government's to assist that he be brought into Court I 23 so to speak, and sobjected to cross-examination ou these 24 conclusions that he set forth in his memorandum. 4 25 MR. CASE: The Government's did not attempt to Heritage Reporting Corporation (202) 628-4888
17 1 subpoena Mr. Grimm or we feel there's an adverse inference 2 to the other side that should be drawn in this case / that 3- they did not call him, the proponent here. Certainly within 4 the powers of FEM?.to bring him before the Court and 5 testify. This was not done. 6 additionally, in our estimation no plan -- whether 7 Mr. Krimm was up there or not, it simply can't or the number 8 can't be defined. It's based on sheltering data. 9 The Board recognized that. Everyone's rersgnized 10 that, and sheltering data as this Board and the Licensing 11 aoard previously indicates, simply is -- 12 JUDGE ROSENTHAL: Well, I think the response to 13 that was that at the time of our prior decision, we didn't 14 have before us the factual record, including the FEMA and 15 Staff testimony that has now been complied. 16 Moreover, since the applicant -- we didn't have i i 17 before us the Staff and FEMA's explanation that the twenty l 18 percent number. In other words, the arguments being l 19 advanced that the situation at this juncture is quite [ 20 different from that when this Board last spoke. E/T 1A21 f i 22 ; 23 ! l 24 [ 25 I Heritage Reportlag Corporation (202) 628-4888 I
P 18 1 MR. CASE: I think, in fact, what is the truth is, (} 2 the Board had the exact same kind of evidence before when it spoke previously as it is here now. I quote from the ALAB 3 4 855 Decision. The 32,000 figure, which was 20 percent, 5 which was what they advocated at the last hearing before 6 this Board concerning planning basis, was promised on a 7 study that showed that roughly 10 to 20 percent of any 8 population requires sheltering in the event of a disaster. 9 And that's exactly what the Krimm memorandum is 10 based on, is the number of people who require sheltering in 11 the disaster. The evidence is the same before the Board. 12 The Krimm memorandum, based on the same evidence, this Board 13 previously rejected, is not speaking to the question of how 14 many will show up for monitoring. 15 There is simply no logical nexus between 16 sheltering, historical sheltering data, and a calculation of 17 who will show up for monitoring at the three reception 18 sites. 19 SUDGE HOORE: You just used the figuro 20 percent 20 in reference to the applicant's position in the hearing 21 below the remand hearing. 22 In your brief you used the figure 30 percent as 23 being the figure the applicant uses -- started out, that 24 hearing with. Is that an error in your brief? 25 HR. CASE: No, the Krimm memorandum is 20 percent. Heritage Reporting Corporation (202) 628-4888
19 1 LILCO has indicated they have met and planned the monitor, 2 or able to monitor 30 percent of the EPZ, and therefore, [ s)
'3 satisfy any sort of planning base criterion because they've 4 taken the 20 percent from the Krimm memorandum, and added 5 the ten percent -- or added 50 percent.
6 JUDGE MOORE: But capability is different from the 7 hottom line figure they contend is the requirement, which is 8 20 percent. 9 MR. CASE: Adequate. Exactly. 10 JUDGE MOORE: So that's not saying that the 11 applicant is contending the requirement is 30 percent? 12 MR. CASE: Well, the issue is, what is a proper 13 planning basis? What should intervenor -- what should the 14 applicant -- how many people should they expect to show up 15 at the reception centers; and sometimes capacity and a O 16 planning basis get confused, but the applicants as we 17 understand it always advocated the Krimm memorandum as being 18 the accurate statement of a proper plan basis, which was 20 19 percent. 20 JUDGE MOORE: Did the applicant ever attempt to 21 explain why in 1984 its witnesses testified that sheltering 22 and sheltering alone thm number was 20 percent, and how it 23 can adopt the position in the hearing below that the Krimm 24 memorandum for shelter and plus monitoring was 20 percent? 25 MR. CASE: Our point has been all along that the Heritage Reporting Corporation (202) 628-4888 O
20 1 planning basis simply is inadequate; that there's no showing (} 2 here, and we have made the arguments many times in front'of 3 the licensing board both in oral argument and in our l 4 findings that the way the planning basis is calculated in 5 this case is simply inadequate. It's based on sheltering 6 data. That's the bedrock of the planning basis that -- ! 7 JUDGE ROSENTRAL: How do you go about coming up i 8 with an informed estimate of the number of people who 9 require monitoring? I suppose that the figure is somewhere 10 between 1 and the total number of people that are in the EP3 b 11 at the time of the accident. 12 Now, this is an estimate. Clearly, unless the I 13 resort is to a ouija board, there must be some mechanism for 14 making this kind of judgment. 15 Now, let's say that you don't use the sheltering 16 estimate, and maybe that's right. But what do you use? i 17 MR. CASE Well, let me start out by indicating , r 18 one thing: the key question is not necessarily how many 19 people will require monitoring -- the key question is how f 20 many people must you plan for to arrive at the reception 21 centers? I 22 Keeping that in mind, of course, it's always fun 23 to criticize and never come up with your own ideas, but we ; 24 always enjoy putting the burden where it belongs, on LILCo.
; 25 But, if pressed, I would indicate the way you I l
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21 1 would start -- and this would only be the initial step -- 2 would be to start out with an analysis similar to which was O 3 done by Mr. Hulman of the staff here, to attempt to find out i 4 in an accident how many people with footprint analysis would 5 require monitoring? That's the first stop. 6 How, we obviously made criticism of the way Mr. ! 7 Hulman proceeded in terms of his analysis not taking in to l 8 account certain factors / not being conservative enought but i 9 in an analysis like that would be the start -- on top of the 10 number of people who would require monitoring you would have 11 to make an analysis of the number of people both within and 12 without the EPZ who you would expect.would arrive for 13 monitoring at the reception centers if there was a director 14 to go for nonitoring. And that would have to be added on 15 top of -- 16 JUDGE ROSENTHAL: You're differentiating between 17 the people who actually need it and the people who would 18 turn up? I don' t quite -- 19 MR. CASE: Yes sir. 3 20 JUDGE WILBER: -- is this the shadow effect you're 21 talking about? 22 HR. CASE: It's a monitoring shadow effect. We 23 believe that you have to account for that and you have to 24 account for it -- and it has rigor as a possible fact. 25 JUDGE WILBER: Could you tell me the fundamental ) Heritage Reporting Corporation (202) 628-4888 l () 4
-.n, ,w_-__- - - . ~
m- . 22 1 difference between a "monitoring shadow effect" and the 2 "evacuation shadowing effect?" Don't they both rely on fear
-{)
3 or lack of information? 4 MR. CASE: Well, fear and, yes, either confusing 5 or lag. The motives are the same. They flow from the same 6 sources, but obviously the phenomena are '.he same. If you 7 were in an evacuation and no moricoring -- there's going to 8 be no monitoring shadow, but monitoting shadow arises only 9 if there's an order for monitoring for people who report for 10 monitoring. 11 JUDGE WILBER: I understand, but the underlying 12 monitoring -- 13 MR. CASE: Yes, I mean, all partias have agreed, I 14 think, in this respect; they flow from the same basic psychological needs and urges.
)15 16 JUDGE ROSENTHAL: Well now, how do you estimate 17 this?
18 MR. CASE: Well, it would be difficult, but we 19 believe that there's a science -- in the sociological 20 literature there should be a way and would be a way, to do 21 it. People in this city in particular many places devote 22 their careers and bet their careers on public behavior in 23 the futures who will votet what will they vote for. TNings 24 like that. 25 Lawyers bet cases on sociological analyses of how Beritage Reporting Corporation (202) 628-4888
23 l 1 certain jurors will react to certain situations in the p s 2 future. 3 JUDGE ROSENTHAL: Didn't Mr. Krimm do that in this 4 case? You're dissatisfied with his result and perhaps with 5 his methodology, but wasn't that basically what he was 6 doing, and why isn't his guess as good as anybody else's? 7 So I would say that this is more than simply an 8 imprecise science. I would say it's no science at all. 9 MR. CASE: Whether it's imprecise or no science, 10 is what Mr. Krimm did was not what I just described; who 11 made the regular analysis of the number of people who would 12 require monitoring; and add on to that the number of people 13 who would require monitoring and add onto that the number of 14 people who would go for monitoring, both from within and 15 without the EPZ. l' 16 Basically, he'd talk a data base sheltering data, I 17 which is bordered only rejected and put a fudge factor on [ { 18 it. And there's no basis for that. We seo no studies; we . 19 see no rationale, for why he did it, and the FEMA witnesses i 20 candidly describe it as a "fudge factor." It's 30 percent. ! 21 JUDGE ROSENTRAL: Did you have witnesses of your 22 own who came in and said in effect that Krimm is out to 23 lunch; that this is not the way in which one can arrive at a , 24 reasonable estimate of people who would turn up for 25 monitoring? I i i i i s 4 Heritage Reporting Corporation ! (202) 628-4888 () < i
! l
24 1 MR. CASE Yes sir. The State of New York's 2 witnesses actually were the first in this to take issue with O 3 the Krimm Memorandum, in the sense that these were New York 4 emergency planners from the Radiological Preparedness Group 5 who indicated in their professional judgment you should plan 6 for 100 percent of the EPZ as a prudential matter, and took 7 direct issue with what was at issue in the Krimm memorandum. 8 JUDGE ROSENTHAL: And that 100 percent isn't an 9 estimate. It's just a personal view as to what should be done presumatly out of an abundance of caution. ~ 10 But I'm l 11 getting at whether there were witnesses in the matter of 12 what is a reasonable estimate as to the number of people 13 that are going to turn up for monitoring -- because 14 obviously 100 percent or not -- I imagine you would agree on j 15 that. It would be agreeable. O 16 MR. CASE Right. But what is the proper planning 17 basis and the REPG people indicated proper planning basis 18 was 100 percent. There were also witnesses put on by 19 Suffolk County who attempted to describe the magnitude of 20 the monitoring shadow based on focus groups and obviously 21 based on the results of surveys. Now, this was rejected by 22 the Board, but we believe that analyses like that have to go 23 into the question of how much -- how many people -- do you 24 plan for to show up at the reception centers? 25 Let me -- my time is almost up -- if not up. Just Heritage Reporting Corporation (202) 628-4888 O
25 1 briefly conclude. We view that finding on the 20 percent 2 planning basis is erroneous for the reasons we've talked O 3 about right here. In addition, it applied to the wrong 4 standards it applied to a defensibility standard, not a 5 preponderance of the evidence standard. They're different 6 under the law. And it's not a mere matter of semantic 7 quibbling. 8 We also believe that, in fact, there are no FEMA , i 9 findings; no testimony, that can be construed as FEMA 4 10 findings; and that to enter in this case findings without i 11 any FEMA review of this matter was simply an error under the 12 Commission's clear regulations. 13 MR. CHRISTMAN: Judge Moore, Members of the Board. 14 I am Jim Christman. We split the time up with the staff and 15 I get 25 minutest the staff gets the rest, as I understand 16 it, j 17 Let me talk first about something that's not ! 4 18 before you, which is the Belmore litigation up on Long ! 19 Island not properly raised by the appeal and no one has j 20 filed a motion to reopen the record. 6 21 JUDGE ROSENTHAL: You're not contending that a 22 motion to reopen is necessary in this situation, are you? 23 MR. CHRISTMAN: Yes, I believe it is. 24 JUDGE ROSENTHAL: Why? 25 MR. CHRISTMAN: Let me tell you several reasons: , I Heritage Reporting Corporation f (202) 628-4888 i () : t
26 ; 1 number one, the litigation is still ongoing and those {} 2 3 facilities are still there. Seabrook case where there was a court order saying that You get something like the
- 4. certain sirens were illegal. The contention was not 5 admitted in that case because it lacked immediate safety 6 impact.
7 We don't have an order telling us exactly what the 8 Court's mandate is going to be. 9 JUDGE ROSENTHAL: The determination of the Supreme
- 10 Court of the State of New York, which unless and until it is 11 reversed by the Appellate Division of the Court of Appeals, 12 seems to me, at least, that we have to recognize to the 4
13 effect that certain necessary appurtenances, if one may put 14 it that way, cannot be employed without obtaining a permit 15 or a license, which up at this point has not been so. 1 16 How, for the life of me I can't understand why wo 17 are not obligated -- not merely entitled, but obligated to l 18 recognize that judicial decision without any kind of motion 19 to reopen that's before us. 20 MR. CHRISTMAN: Let me state the obvious, which 21 is, if the Hicksville facility will service 24 percent of 22 the Roslyn facility will service 12 percent of the EPZ, and 23 that makes 36 percent, that meets with those two facilities 24 alone, only L1LCO's self-appointed trigger point of 30 25 percent, but the requirement, which is 20 percent, i ! Heritage Reporting Corporation (202) 628-4888
. _ - . _ - . . _ . . _ , _ _ _ _ _ _ . _ . . _ . . _ . . , . _ . ._-_._.._____.-m--_.-,..u
27
- 1. JUDGE MOORE: Where did the licensing board find 2 that one of the facilities that was in existence when the
{ 3 Board ruled it was unnecessary and could be discarded? 4 MR. CHRISTMAN: Well, the Board didn't find that 5 one of the facilities was unnecessary. 6 JUDGE MOORE: How at a minimum, doesn't it hav'e to 7 go back so that the Board can base its decision on the facts 8 as they stand? 9 MR. CHRISTMAN: This wasn't -- obviously, this 10 wasn't an issue, but the issue was what capacity LILCO has 11 to supply for to monitor the public? And the decision was 12 20 percent. We still meet that standard. 13 JUDGE ROSENTHAL: Now, is that to say about Mr. 14 Case's argument that there still is the matter of different 15 traffic patterns, et cetera, when there are two rather than 16 three, facilities in use? 17 MR. CHRISTMAN: I don't want to imply that we are 18 conceding that the Be3aore facility can never be used. 19 Because what I didn't get to say was that there are several 20 things before we ever get to that point, which is simply 21 asking the authorities for permission to use it in an 22 emergency. Because fortunately the New York legislators 23 have been foresightful enough to provide that both the 24 governor and local executives can override local and state 25 lawn that interfere or hinder an emergency response. Let's Heritage Reporting Corporation (202) 628-4888
28 1 not forget that. 7s 2 We have to ask ourselves what would happen in a
~'
)
3 real emergency. 4 JUDGE MOORE: All right, let's ask ourselves what 5 would happen in a real emergency if the injunction -- and I 6 understand that an injunction was sought -- and you're 7 ordered to remove the trailer and the connection, which is 3 what's really at issue, is it not? 9 MR. CHRISTMAN: Yes. 10 JUDGE MOORE: And that's gone -- the governor and 11 the legislators can cry "emergency" until they're blue in 12 the face and it doesn't put a trailer there, does it? 13 MR. CHRISTMAN: See, that's why we really 14 shouldn't be arguing about that. We really don't know the 15 connections. What we know is according to that Judge's O 16 decision, the use of that facility, as I understand it, as a 17 reception center in a radiological emergency would violate 18 the zoning laws -- it's not zoned for a radiological 19 emergency. 20 But we don't know how far that goes. And I'll 21 remind you, too, that those trailers are mobile. 22 JUDGE ROSENTHAL: When is the judge likely to 23 enter her order? 24 MR. CHRISTMAN: I don't know. They had not done 25 it as of this morning, but I cannot predict when she might Heritage Reporting Corporation (202) 628-4088 (~) : v l
29 1 rule. I would imagine it would be promptly, but I don't 2 really know. As Mr. Case said, both parties have submitted 3 their counter orders. 4 See, the order makes a difference. There are a 5 number of things that might be done to still render that 6 bill more facility-useful; usable. One is to apply for a 7 special use permit. There are the possibilities of appeals; 8 there is the possibility of stays; there's the possibility 9 of asking for permission in the -- 10 JUDGE ROSENTHAL: That would be denied, wouldn't 11 it? 12 MR. CHRISTMAN: Well, if you look at the E33 brook 13 case where they said that the sirens are illegal; I mean you 14 had a worse case there. Here we don't have the Board's 15 order or the Court's order. We don't know exactly how far O 16 it will reachi but we do know that the facilities are still 17 there. It doesn't have an immediate safety impact. 18 Particularly sinco we still -- I'm sorry? 19 JUDGE ROSENTHAL: And presumably the judge is 20 going to enter an order within a reasonable period of time; 21 at that point at least the uncertainty as to what the order 22 provides will be removed. I recognize that there's 23 possibilities of appeal; there's a possibility of an 24 override; there's a possibility of applying for and 25 obtaining the necessary permits. Heritage Reporting Corporation (202) 628-4888
30 1 But what I don't understand still is why at this {} 2 3 juncture ue're not compelled to take the case as it stands with that Judge's opinion without the intervention of a 4 motion to reopen? 5 MR. CHRISTMAN Let's assume then that the Court 6 has -- you have an order and that this violates the zoning 7 law and that you are enjoined from using it as a reception 8 center without further approval, which is roughly what 9 LILCO's proposed order says. 10 Well, as I say, there's no -- we needn't change 11 the plan in that case because we simply go to the 12 authorities at the time and say "can we please use thatt 13 people are needful?" And I'm confident that that permission 14 would be granted. 15 That's the reality. You're into realism now, as 16 you recognize, and we always end up there; but that's simply 17 one possibility depending upon how that judge rules. 18 The reason you don't have to take that is because 19 of the Seabrook precedent, and because we still meet 20 20 percent guidance with the other two facilities. ! 21 Now, you want me to get to the other question you 22 askt you know, don't these people have to be told in 23 advance? The answer to the question is, "of course." 24 They' re designated for certain reception centers, in this 25 case sectors K and N, to the west and the south are heritage Reporting Corporation (202) 628-4888
31 1 designated for the Belmore facility, because you have to 2 tell people in advance where they're to go. 3 And we open up all three facilities even if K and 4 N aren't necessarily effected by the plume just because 5 that's the practice. 6 Now, your question isn't this going to foul 7 everything up? Not at all. I mean, those folks from K and 8 N, sections K and N, who are heading for the Belmore 9 facility -- go out west on Sunrise Highway and the Southern 10 State Parkway. 11 But instead of going to -- assuming now, 12 unrealistically, Belmore is wiped from the face of the 13 earth, they simply instead of making -- they go out the same 14 roads and instead of making a left on the Wantaugh Parkway, 15 they make a right on the Mantaugh Parkway, right on Old O 16 Country Road, to the Hicksville facility, which has 24 17 percent of the EPZ, which is more than the Krimm memorandum 18 guidelines. 19 JUDGE ROSENTHAL: Where did that number come from? 20 MR. CHRISTMAN: Which one? 21 JUDGE ROSENTHAL: Hickman - you say 24 percent? 22 MR. CHRISTMAN: You simply have to calculate the 23 number of monitors -- 24 JUDGE ROSENTHAL: But I thought you said you had 25 30 percent of which Hickman could handle 50 percent -- I can Heritage Reporting Corporation (202) 626-4888
32 1 calculate that out to be 15. 2 MR. CHRISTMAN: No, if I said that, I shouldn't (^') w-3 have. The figures are roughly the following: Hicksville 4 will handle about 24 percent; Roslyn will handle -- 5 JUDGE ROSENTHAL: Of the EPZ? 6 MR. CHRISTMAN: Of the EPZ, yes. 7 JUDGE ROSENTHAL: But your total program will 8 handle 30 percent, is that correct? 9 MR. CHRISTMAN: Well no. We have the capacity for 10 46 -- it all adds up to 46.6 percent, 11 JUDGE ROSENTRAL: Forty-six percent is relying on 12 your back up people? 13 MR. CHRISTMAN: No, not at all. We're calling 14 that 150 -- the numbers I'm talking about are 100 percent 15 staffing. We call that 150 percent of that. That's greater 16 and we don't count it. 17 JUDGE ROSENTHAL: Now, do you have a commitment to 18 46 percent? 19 MR. CHRISTMAN: No. Let's get the commitment -- 20 because I'm going to be upset if you were to say that the 21 legal requirement is 46.6 percent, because that's what my 22 client provides. The legal requirement, we think, is 20 23 percent. 24 How, let me explain the 20, the 30, and the 46.6. 25 Twenty percent is the federal guidance. LILCO relies on Heritage Reporting Corporation (202) 628-4888 (- t
33 1 that and has always and the record supports 20 percent and 7, 2 that's what the Board found and that's what we think is ('~'l 3 going to be involved. 4 JUDGE ROSENTRAL: Well get into for a moment 5 whether the record supports that. 6 MR. CHRISTMAN: You bet. LILCO -- the 30 percent 7 comes from the following two sources: in the first place, 8 it's a trigger under the plan, since LILCO can do more than 9 the federal guidance requires. They have simply said that 10 if it is projected that more than 30 percent of the EPZ will 11 be coming to the reception centers, then they would start to 12 worry about overloading; they would then call for help. 13 They go to the second layer, which is to call in 14 INPO, which is Ir.stitute of Nuclear Power Operations, and the Department of Energy, which have huge resources, and the (~_)1615 record shows can be there fairly promptly, particularly DOE 17 from the Brookhaven Lab, of course. 18 But that's the trigger the 30 percent is the 19 trigger point under the plan. 20 And in addition, the traffic analysis in the 21 interests of conservatism was done at 30 percent, because 22 the analyst simply arbitrarily said, "Well, if 20 percent is 23 the federal guidance, let's half-again that mucht go up to 24 30; then we're really conservative." 25 And so if an analysis is for 30 percent and the Heritage Reporting Corporation (202) 628-4888
34 1 trigger point is 30 percent, what happens is that when you calculate the number of people who can actually be brought (}2 3 and processed through those three facilities, it turns out 4 to be almost half the EPZ -- simply because my client has 5 gone farther than it needs to. 6 But, "commitment" means commitment of resources as 7 shown by the record. I should have said "commitment of 8 resources," because what they have committed and trained 9 their staff. , 10 JUDGE ROSENTHAL: But I think no commitment to 11 anybody in that sense. 12 MR. CHRISTMAN: Well, the plan calls for that. I 13 suppose the answer to your question is that you would have ; 14 to amend the plan if you were going to change those portions of the plan that call for a 30 percent trigger, but I would
)15 16 expect an amendment to the plan to be instantly granted as 17 long as we submit that 20 percent standard.
18 JUDGE ROSENTHAL: Now, where do you have the 46.6 , 19 percent goal? That percent is going where? - l 20 MR. CHRISTMAN: I believe 50 percent of the EPZ is 21 routed to -- it's in one of the attachments to our l 22 testimony, which is KLD -- report TR201A, I believe. Fifty 23 percent are routed to Hicksville. i I 24 JUDGE ROSENTIIAL: You mean Hicksville can I 25 accommodate 50 percent of the entire population of the EPZ? l Heritage Reporting Corporation (202) 628-4888
35 1 I'm trying to get at what is the capacity of now I realize 7 2 that you think all kinds of wonderful things could happen to \ 3 Belmore, but for purposes of the present discussion, I would 4 like to take Belmore out of the picture. 5 MR. CHRISTMAN: All right, take Belmore out of the 6 picture. 7 JUDGE ROSENTHAL: You've got two reception 8 centers. Now, I would like to know what is the capacity of 9 each of those reception centers? In other words, what 10 percentage of the -- 1 11 MR. CHRISTMAN: All right now, we've talked -- 12 JUDGE ROSENTHAL: -- with the populace in the EP3, 13 can they handle them? 14 MR. CHRISTMAN: That's easy Micksville has the 15 capacity to process 24 percent of the EP3, and you just get 7-( 16 that by simple calculation from T0201A, the traffic report 17 -- 34 percent. Roslyn - 12 percent. That adds up to 36 18 percent. Belmore, obviously, 11 percent, which you will 19 find adda up to 46 - 47 percent. And that's the total 20 capacity using the monitors under the plan, so you see? 21 Roslyn and Belmore are about the same -- 11 and 22 12. Hicksville is much bigger and has 24 percent. In other ' 23 words, Hicksville alone meets the 20 percent federal 24 requirement. Hicksville, plus either of the other two, meet 25 the 30 percent self-imposed trigger that LILCO has imposed. Heritage Reporting Corporation (202) 628-4888
36 1 JUDGE ROSENTHAL: Let's go on if we can to the (~) 2 liability of that 20 percent planning estimate. Now my
%)
3 impression -- and you can correct me if I'm wrong, that 4 LILCO itself had previously estimated the sheltering 5 requirement of 20 percent and that that estimate had the 6 andorsement of the American Red Cross, am I wrong about 7 that? 8 MR. CHRISTMAN: I don't know that the Red Cross -- 9 JUDGE ROSENTHAL: That was my impression. 10 HR. CHRISTMAN: The Red Cross testified hearing, 11 so -- that's right. ; 12 JUDGE ROSENTHAL: That's LILCO'n own figure. 13 Now, I would say that it would be within the realm of 14 officiel notice that they're going to be people who do not 15 require and do not want, sheltering, who will turn up for 16 monitoring. 17 MR. CHRISTMAN It's possible. 18 JUDGE ROSENTHALt How, what the percentage is, I 19 don't know. I mean, your guess and my guess might widely 20 vary. But to num, now if the 20 r?rcent is a good baseline 21 figure for cheltering, it would seem to me to perforce 22 follow that the monitoring figure has to exceed that. 23 Now, we might again disagree by what percent, but 24 it would be by some percent. 25 Now, that being so, I would like you to tell me Heritage Reporting Corporation (202) 628-4888 m
37 1 what the justification for that 20 percent figure is? ,- 2 MR. CHRISTMAN: Okay, I'll do that. I think your ( 3 reasoning is correct. In the first place, the 20 percent 4 figure for sheltering, which was true, was upheld, has a lot 5 of fat in it, as you can see from the Krimm memorandum. The 6 actual number of people universally, based on historical 7 data base needing sheltering, is more liable -- may tail off 8 at around 20 percent, but a more representstive sample would 9 be around three or five percent -- up to 15 percent. 10 But what the Krimm memorandum did was sky -- and 11 all of the competent experts from FEMA and the NRC staff and 12 from LILCO's witnesses who testified, said this is a matter 13 of judgment. We don't have a historical pattern of 14 radiological emergencies. It is sensible to establish a 15 planning basis that is sufficient; that it can handle most \- 16 accidents and be expanded in the worst case to cover even 17 more. And that's what the 20 percent is. 18 And I will concede to you that there is a large 19 measure of judgment which the County likes to call "fudge 20 factor" or "gambling" or who knows what-all else, but 21 professional judgment by FEMA, by the NRC staff, and by 22 competent experts presented by LILCO that the 20 percent -- 23 this is not a prediction of how many people are going to 24 show up in a particular accident on a particular day. It's 25 not that. Heritage Reporting Corporation (202) 628-4888
38 1 JUDGE ROSENTHAL: I gather Mr. Krimm did not 2 testify, nor did anybody that might have been involved with O 3 him in the preparation of the Krima memorandym, is that 4 correct? 5 HR. CHRISTMAN: Well, as your question is, very 6 narrowly yes. We had all kinds of testimony -- all kinds of 7 testimony about the provenance ( P - R- O-V- E -N- A-N- C-E ) of that 8 memorandum. We had Falk Kandor from the NRC staff come in 9 and he talked to people who were on the steering committee 10 whc had worked in TEMA; they had day-to-day contact with 11 FEMA and he had talked to all of these peopla, and he talked 12 about the Krimm memorandum and how it came to be. 13 The witnesses from FEMA, particularly Mr. Keller, 14 and o*,hers from the FEMA panel; cross-examined at great 15 length about what they knew about the Krimm memorandumi how , O 16 it had come to bei and who had -- a fellow named Mr. McNutt, 17 I believe, had a hand in -- 18 JUDGE WILBER: He was not a witness, is that 19 correct? 20 HR. CHRISTMAN: They were not a witness, but 21 experts commented -- experts from both agencies -- both FEMA 22 and NRC, including -- well, let's not just take our indices. 23 JUDGE HOORE: Let's look at the Krimm memorandum 24 for a miraute. Is it a generic, 20 percent figure applicable 25 to all plants; or is it site-specific? Meritage Reporting Corporation (202) 628-4888 O r
l 39 1 MR. CHRISTMAN: No. No do have additional -- tha 2 only site-specific information -- but it's generic. {i}
~,
3 JUDGE Mo0RE: But if it's generic, how can you 4 logically and sensibly, if you will, do that without any -- 5 look at the demographics of an EPZ? 1 6 MR. CHRISTMAN: Two reasons, and both of them in
- 7 the recordt one, because as Mr. Kantor testified, because l 8 the concept since Three Mile Island of emergency planning is 9 to make your protmetive actions on the basis of plant 10 conditions, to get people out fast, the expectation is that 11 you're not going to have anybody contaminated.
12 And the testimony is replete with references of 13 fact that the monitoring is principelly to dete?^ any 14 problem that may exist and to reassure the pubb :. 15 In short, as our witnesses testified, ordinarily 16 you would expect only the people who need ordinarily now, if 17 you're predicting - people who need shelter to show up; and 18 to be monitored -- and no one would be advised to be 19 monitored because they were contaminated because you'd get 20 them out of there fast. 21 That's just the object of emergency planning and 22 the whole goal since THI, And that's important. That's a 23 change from since the pre-THI days. 24 The second reason is, because these witnesses came 25 in from FEMA and the NRC staff and said we work with this Heritage Reporting Corporation (202) 628-4888 O
40 1 every day and we believe that you cannot predict the number 7s 2 of people who will show up in a real emergency; but we can
\") 3 predict -- because we are emergency planning experts -- what 4 kind of a planning base we got to have to be able to hand --
5 and it's 20 percent -- which provides us with a substantial 6 planning base that can be expanded in an emergency. 7 Let ne explain that before you interrupt me -- 8 with two more pieces of testimony: Dr. Linnemann, who was 9 at the THI response -- he was for the industry, not ror the 10 government, but he was involved in the response to TMI -- 11 and he testified that it was important from his experience, 12 not that you have a lot of people lined up; but that you 13 have the infrastructure. 14 He said that the problem at THI wasn't that they 15 didn't have the monitors; it was they didn't have the plani O 16 the organization; to use them. And that's the point of the 17 20 percent. You have a substantial planning base that 18 covers, according to Mr. Hulman's testimony, and in his 19 analysis, his PRA type analysis, almost all of the 20 emergencies you would ever have, and for those few 21 extremelye extremely bad ones, you can expand the plan. 22 And our procedures expressly say LILCO so-and-so 23 is -- 24 JUDGE HOORE: Has this question ever been 25 litigated before^ Heritage Reporting Corporation (202) 628-4888 e
r 41 1 HR. CHRISTMAN: No, I think this is the first 2 time. 3 JUDGE MOORE: Why is the record silent on what 90 4 some plants prior to this proceeding did for a planning [ 5 base as far as a percentage in the number, prior to 1985, , L 6 when the Krimm memorandum was issued? ! 7 MR. CHRISTMAN Why is our record silent -- 8 JUDGE HOORE: The only evidence in your record is l 9 that nine mile points 36 percent, and that's 16 percent more j 10 than 20 percent. And there's also mention that Trojan is t 11 not 100 percent, leaving the implication that it's a hell of l 12 a lot more than 20 percent in the context in which that t 13 testimony was given. 14 MR. CHRISTMAN: There's a bit more evidence than i 15 that. There are -- New York plants suggesting -- f 16 JUDGE MOORE: But none meet 100 pe . cent. r I 17 HR. CHRISTMAN: Oh, right. None of them meet -- t i 18 no one meets 100 percent. , i 19 JUDGE MOORE That's the other evidence about the ! i 20 New York plants, is it not? There are no numbers in your 21 record. Why? 22 MR. CHRISTMAN: There are some, but it's hard to ! 23 dig them out. ; t 24 JUDGE MOORE: What are they? Enlighten me, [ E 25 please? r t Heritage Reporting Corporation f (202) 628-4888 i
42 1 MR. CHRISTMAll: Well, as you say, there's 35 to 40 2 percent for the nine mile facility, and I would have to -- 3 you'd have to go out to the number of monitors provided and 4 the number -- it's impossible to tell how many rronitors are 5 -- the capacity from looking at the plants. We couldn't 6 figure it out and the witnesses couldn't seem to tell us. 7 But it was clear there was less than 100 percent. 8 And indeed, some of our testimony shouing was quite small. 9 In some cases we had to withdraw. 10 But your questions is, why do -- 11 JUDGE HOORE: In 1985, when the Krimm memorandum 12 was issued, there were 90 some plants licensed. That meant 13 there were 90 some emergency plans -- in TV land. That 14 means, in theory, the staff and FEMA had found t he planning 15 base for 90 some emergency plans adequate. And to find it 16 adequate you have to know what you found adequate. 17 So in theory, the staff and FEMA had looked at all 18 those other plans, and when they gave it their stamp of 19 approval, this issue had been looked at. 20 MR. CHRISTMAN: Yes. 21 JUDGE moore: Why is the record totally devoid of 22 any information as to what the rest of the country and the 23 other 90 some plants out there were doing? 24 MR. CHRISTMANt Because it's very hard to find 25 from the published documents -- and we went and looked -- Heritage Reporting Corporation (202) 628-4888
43 1 what the capacity is. (~} 2 JUDGE MOORE: It's not that tough to bring 90 v 3 witnessea, one from each plant, in and ask them, though. 4 FR. CHPISTMAN: You thitik it's not tough to bring 5 in 90 witnesses? It'd very tough. 6 And we presented evidence. We were worried about 7 confidentiality. We got information from the local 8 government people, who seemed to have this information. We 9 were requires - we were forced to withdraw it because wo 10 did not want to reveal their names. 17 JUDGE ROSENTHAL: Mr. Christmas, if you had two 12 EP:s, both of them with the same total number of people 13 within the EP: but in one case the population is 14 concentrated within a mile of the reactor foundry. In the other case, the population is all of the outer extremities, (v~} 15 16 MR. CHRISTMAN: The rim of the wheel versus the 17 spoke -- 18 JUDGE ROSENTHAL: In no circumstances -- you can't 19 tell me, I wouldn't think, that the same planning estimate 20 for both EP:s would be appropriate. Now, it seems to me 21 that, given the widtly variant population distribution 22 within the EPO, that you'd have widely variant estimates as 23 to the number of people that would require monitoring. 24 HR. Ch ;.s TION : Hight be. 25 JUDGE ROSENTRAL: Or would seek monitoring, even Heritage Reporting Corporation (202) 628-4888 O
,- ~
44 1 if they didn't require it. s s 2 MR. CHRISTMAN: It might be -- you're saying the 3 number of people who might be contaminated, affected by the 4 plume or who might be asked to, as a precautionary measure - 5 - 6 JUDGE ROSENTHAL: Or might themselves decide. I 7 might well -- if I'm half a mile from the plant when the 8 whistle blows, I might well decide that I want to be 9 monitored, out of an abundance of caution, whereas if I were 10 ,itting on the outer rim of the EPZ I might not have that 11 same measure of concern. 1 12 MR. CHRISTMAN: You might, if you -- and probably 13 a small fraction would. You might, if you didn't listen to 14 any information you received, any reliable information. If 15 you didn't act rationally, you might very well. O 16 JUDGE ROSENTHAL: Well, my -- I'm not a 17 psychologist, but my impression that you can't count on a 18 population to act entirely rationally in the face of most 19 emergencies, and I would suspect particularly one of a 20 radiological character. 21 MR. CHRISTMAN: Well, Judge Rosenthal, you've got 22 to be careful. There's an extensive record in this case. 23 People -- to act rationally in emergencies, as a matter of 24 fact. 25 Yes, I can't say 100 percent. :hore will be Heritage Feporting Corporation (202) 628-4888
45 1 somebody out there, maybe one guy, who does something crazy.
/'j 2 But people react very rationally and you'll find the
\m/
3 county's witnesses saying that the evacuation of Three Mile 4 Island, the shadow evacuation, which was the most unpitanned 5 thing that can be imagined, reflected an orderly process. 6 People make up their minds and they listen to 7 information and they do the right -- they make a rational 8 risk assessment and do the rational thing, generally. 9 JUDGE ROSENTRAL: Let me ask you one question on 10 another facet of this matter. That is, my recollection is 11 that the licensing board took into account the services of 12 the Nassau County Police escorting people, or at least 13 traffic management, or whatever, from the Suffolk borders to 14 the reception centers in Nassau. 15 It's also my impression that a large amount of the 16 evacuation would be in Suffolk County, from the outer 17 boundary of the EPZ to the Nassau County line. 18 MR. CHRISTMAN: Yes, sir. 19 JUDGE ROSENTHAL: Now, did the licensing board 20 take into account that at all, and if not, why shouldn't it 21 have. 22 MR. CHRISTMAN: No, it didn't and they shouldn't 23 have, because when you're talking about Suffolk County 24 you're talking about their three main highways: The Long 25 Island Expressway, the Northern States Parkway and the Heritage Reporting Corporation
- pg (202) 628-4888 l V
46 1 Southern State Parkway. And those are limited-access roads, s 2 Ones the people get on those main evacuation 3 routes, it's bumper-to-bumper traffic, what's called level 4 of service F. It's called forced flow or stop and go. 5 The problem people will have is that people 6 outside the EPZ, if they wanted to get on and go to the 7 grocery store, will have difficulty getting on the auto 8 ramps. The problem -- the evacuees don't have any problem. 9 You don't need traffic cops to drive -- to direct you along 10 the Long Island Expressway. You do have traffic guides 11 inside the EPZ, of course, to expedite people's getting out 12 of there. 13 JUDGE ROSENTHAL: Well, all you need on the 14 expressway, I think, are people to feed you for the 36 hours
- 5 that you're sitting in one place.
16 MR. CHRISTMAN It takes more like about an hour 17 and -- well, starting -- the first people are expected 18 within about two hours. 19 I know what you're say ng, but that's not true. 20 You know, 30,000 people -- 30,000 cars, I'm sorry. 21 30,000 cars drive westward cut of the EPZ every week day 22 morning and they don't like it. It's crooded. It's often 23 the level of service F, but they get there and it doesn't 24 take them the amount of time that's been given for 25 evacuation. Heritage Reporting Corporation (202) 628-4888 t
47 1 Now, the reason is, the issue of traffic control is at the intersections. There is no real -- our evidence {}2 3 suggests that you don't really need traffic cops at those 4 intersections near the facilities either, but to be 5 absolutely safe, Mr. Urbanik, from the NRC staff, said he 6 thought there should be traffic control. 7 Our witness say, yes, he thought there should be 8 traffic control, too. The Bosrd agreed. 9 Now, I didn't get to your wheels, spoke and hub -- 10 I'm sorry, I interrupted you. 11 JUDGE ROSENTHAL: Go ahead. 12 MR. CHRISTMAN: Would you like to me go to the 13 wheel or -- - 14 JUDGE ROSENTHAL: Go ahead. 15 MR. CHRISTMAN: Okay. 16 You've posed a very difficult t, inical question 17 in terms of probobalistic risk assessments. In other words, 18 if everybody lives real close to the plant, once the 19 probability that a certain number of people are going to be 20 exposed given the spectrum of accidents that might occur as 21 opposed to the people on the outer rim. 22 But, I still think the 20 percent applies in both 23 cases because the philosophy of the planning is to look at { 24 the plant conditions and LILCO's plan reflects that. You 25 can look at the pie charts they have and see that. They Heritage Reporting Corporation (202) 628-4888 1 O
F 48 1 have simple rules for what's happening to the plant and when you tell people get out because we' don't know -- you know,
}2 3 there may be a problem -- you get them out fast.
4 So I think probably the 20 percent should apply in 5 either case just as well. Because remember, we're not 6 predicting how many people are going to show up. But some 7 day, in the year 2005, in a particular Class 9 accident we 8 can't predict. 9 We're making a planning basis that all of the 10 experts from the agencies and our experts said, in our 11 judgment, that's a reasonable planning basis. 12 And moreover, we wouldn't went beyond that. We 13 told them how we were going to expand this planning basis, 14 if we had to. We've got a whole layer of back-up measures. 15 And so, LILCO just went beyond the standards.
?9 But I'm telling you, it's the 20 percent standards 17 that we're defending, and that's what the plan is based on.
18 JUDGE MOORE: Can Irou tell us why the upper bound, 19 1.e., the fudge fcetor that was chosen by the Krimm 20 memorandum was chosen and what it's rational is? 21 MR. CHRISTMAN: Yes, it's -- and it says that for 22 the record. It says there's a large measure of professional 23 judgment, and they asked the individual witnesses whether 24 you personally agree and Mr. Husar said, my personal opinion 25 is -- he said, look, if policy had set a higher, in their Heritage Reporting Corporation (202) 628-4888 1 O
49 1 judgment, you know, we'd implement higher. And they said -- fs 2 the county's lawyer said, well, what's your personal b 3 judgment? He said, in my opinion, I wouldn't go higher than 4 20 percent. 5 And they were saying and there is more testimony 6 to that -- of that sort. Mr. Kantor from the NRC staff 7 talked about all the people he talked to, and he said, look, 8 we deal with these matters every day. We talk to FEMA. We 9 talk to the -- the NRC staff talk to FEMA, and back and 10 forth, and the professional judgment of the planners is that 11 20 percent is enough. 12 Now, LILCO supported that in their oen testimony, 13 but, you know, I talk only about the Federal 'Jovernment. 14 JUDGE WILBER: The number of people you are saying 15 can be handled at Hicksville and Roslyn is based on 100 0 16 seconds per vehicle, a number that you've used? 17 MR. CHRISTMAN: That's right. 18 JUDGE WILBER: I come up with several different 19 times and I wonder which one you have in mind. 20 If you use 100 seconds per vehicle that would I 21 think calculate out to 70 seconds per passenger - 22 MR. CHRISTMAN: Let me give you how I got the 23 numbers, if you don't mind, and then you can -- you can see 24 if I'm not right after the argument from the record. 25 You've got -- at Hicksville you've got 32 Heritage Reporting Corporation (202) 628-4888
m 50 1 monitoring stations. At a monitoring rate of 1152 vehicles per hour, which you can either find in the traffic -- in the {}2 3 traffic raports or you can calculate it for yourself with a
-4 calculator, if you want. You know, 100 seconds divided into 5 3,600 seconds. That sort of thing.
6 The numbar of vehicles you get in 12 hours is 7 13,824 vehicles. That amounts to of people of about 38,707, 8 which is about 24 percent of the roughly 160,000 people in 9 the EPZ. 10 Roslyn, 16 monitoring stations. You do the same 11 calculation, you get -- there's a monitoring :: ate which you 12 can either calculate or get out of the traffic documents: 13 of 576 vehicles per hour, 6,912 vehicles in 12 hours. 14 People, over 19,000. About 12 percent. 15 That's where the 36 -- I added those two up. 16 That's 36 percent with just those two facilities. But we 17 haven't -- as with the sirens at Seabrook, the facility is 18 still there and we don't have the -- 19 JUDGE WILBER: Do you have other testimony that 20 says it takes -- it depends on which part you want to read. 21 Sometimes it's 66 seconds per person, not vehicle, per 22 person -- 23 bE. CHRISTMAN: Buses. That's buses. 24 JUDGE WILBER: And that's also 90 seconds per 25 person. Heritage Reporting Corporation (202) 628-4888 O s
51 1 MR. CHRISTMAN: That's -- yes. 90 seconds didn't
/T^2 play a part in this. It was either an earlier version or
(_) 3 something -- 4 JUDGE WILBER: Well, that's in one of your 5 operating procedures. 6 MR. CHRISTMAN: Yes, I know. Some of those were - 7 - you know, we also put in the amendments to the operating l l 8 procedures. l l 9 The numbers -- your numbers are correct. The 100 10 seconds is for the vehicles coming through. That's a f 1 11 vehicle. Even if it has four people in it. The 60 seconds l 12 is for bus passengers arriving in Hicksville. 13 The buses -- you know, the general public that 14 don't have cars of their own, they come in buses. They're 15 all taken to Hicksville and they are monitored individually. 16 The monitor gets on the bus, goes up the isle, has people l l 17 stand up and doec a X pattern -- I believe front and back. ! 18 That takes a little extra time. 1 ! 19 The rationale for the extra time on that is in the l l 20 record. 21 JUDGE WILBER: Actually, it takes less time, l 22 according to your figures. 23 MR. CHRISTMAN: Well, it takes more time per 24 person probably. 25 JUDGE WILBER: That's what I'm talking about. If Heritage Reporting Corporation (202) 628-4888 O
52 1 you do your numbers of 100 seconds for 2.8 passengers, {} 2 3 that's 70 seconds per passenger -- MR. CHRISTMAN: Well, yes, they -- 4 JUDGE WILBER: -- as opposed to 60 seconds. 5 MR. CHRISTMAN: Remember they have -- 6 JUDGE WILBER: These may be minor seconds, but if 7 you add them up over several thousand persons, it starts 8 chewing away at your percentages very quickly. 9 MR. CHRISTMAN: Yes, but it doesn't cause me any 10 problems because, you know, the 100 seconds is -- in the 11 first place, it involves things like driving up. You know, 12 you ask the person, do you need a map to congregate care 13 center. They drive off. 14 This was tested -- was measured in actual practice with a several hour exersc3e u.at was done right before the {'}15 16 hearings and it was videotaped. The videotape was offered 17 into evidence, but the licensing board refused to accept it. 18 Mr. Lieberman, though, went to the videotape and 19 looked at -- it must have been an incredibly boring job, but 20 he counted them and timed it with a stopwatch. And he was 21 also at the exercise and I think I saw him going around with 22 the stopwatch timing the actual cars at the same time. 23 And he produced a graph of how long it takes to do 24 this procedure, and it's in the record. It's attached to 25 his last piece of testimony, probably called surrebuttal Her!tage Reporting Corporation (202) 628-4888
53 1 that he put into evidence. And you'll see a graph there r~s 2 that shows the timing of these things. U 3 So I can quibble and try to explain the 4 differences in the times, but let me tell you it has been 5 tested and it is in the record. It's been practiced and it 6 works. 7 And also, I believe it worked in the recent 8 exercise and I believe everything went off okay there, too. 9 At least, they met the timing. 10 JUDGE WILBER: How do you explain the board's 11 statement that FEMA had no enthusiasm for a 90 second per 12 person measurement? What does that mean? 13 MR. CHRISTMAN: They -- simply at the hearing they 14 had not signed off on the monitoring procedure, and I don't 15 remember where the statement -- 16 JUDGE WILBER: I'm talking about the licensing 17 board. 18 MR. CHRISTMAN: No, I understand. It's from the 19 initial decision. I don't remember exactly what part of the 20 evidence he was referring to, but it's not particularly 21 important. They have -- the testimony from the FEMA 22 witnesses -- 23 JUDGE WILBER: Well, it's important if you add 15 24 or 20 percent to you times, which reduces your number of 25 people by that amount. Heritage Reporting Corporation (202) 628-4888
r 54 i 1 MR. CHRISTMAN: The lack of enthusiasm, if any,
, ~3 2 was the -- came from the FEMA testimony, I suppose, that V 3 there are other ways to do it and some places take longer.
4 But the testimony also shows that the longer you 5 have to monitor to find contamination the smaller the 6 centamination you're probably talking about. The licensing 7 board correctly found that as a means of screening people in 8 rather large numbers, this is a perfectly appropriate 9 procedure. 10 And let me remind you, too, that the procedures 11 and the training calls for these people it monitors that it 12 has to be very, very conservative. And so, if in monitoring 13 the car and the occupants in the 100 seconds they find any 14 evidence of contamination, they are directed and trained to 3 15 send the people to the decontamination trailers where they _] 16 get much more thorough monitoring. 17 JUDGE MOORE: The licensing board, as I read it's 18 opinion, seemingly dismissed almost out of hand the 19 monitoring shadow effect asserted by the Government. A 20 shorthand way of referring to that, I guess, would be the 21 fear factor. 22 Yet, on the one hand the licensing board did that, 23 on the other hand the licensing board accepted, embraced, if 24 you will, this -- the Krimm memorandum that doesn't explain 25 any of its rationale except it lists three factors on which Heritage Reporting Corporation (202) 628-4888
55 1 its based on. And the second of those factors is the fear
^2 factor.
k 3 Now, how can the' licensing board consistently 4 dismiss the monitoring shadow effect, i.e., the fear factor 5 on the one hand and then embrace the Krimm memorandum which 6 endorses the same concept and says that he's relying on that n 7 professional judgment which embraces the fear factor. 1/ 8 I see an inconsistency there that I can't 9 raconcile. 10 MR. CHRISTMAN: Okay. I don't think it's truly an 11 inconsistency, although it does look -- it may look that way 12 on the surface. 13 The -- I suppose it's always conceded that there 14 will be some probably small number of people who might show 15 up regardleas of objective need. And the record also 16 reflects that part of the reason for having the monitoring 17 requirement at all was to allay public concerns. And so I 18 think it's appropriate -- was probably appropriate for FEMA 19 to say, yes, some small number might show up in addition to 20 allay fear. 21 Bu' casic -- but you have to read that, I 22 think, in connection with all of the consistent and 23 supporting evidence that came into the record, which says 24 that the 20 percent is not only supported, in the judgment 25 of FEMA, by the factors listed in the Krimm memorandum, but Heritago Reporting Corporation (202) 628-4888
e 56 1 it's supported by the factors listed by Mr. Kantor, the NRC 2 staff witness, which includes things like the concept of {} x.- 3 making protective action recommendations based on plant 4 conditions. 5 It is consistent with out witness' testimony 6 that it's consistent with how they've seen protective action 7 recommendations made based on a plume. 8 Did I say it's consistent with Mr. Hulman's 9 totally different analysis? 10 You see -- and it's consistent most of all with 11 the witnesses, the live witnesses, who were there to explain 12 the Krimm memorandum and explain that there is a -- it is to 13 be sure, a large measure of judgment. And Mr. Krimm, I'm 14 sure, was trying to articulate the basis for a judgment which is, at bottcm, a judgment of professional experts, and
) 15 16 he may not have, you know, given all the factors that go 17 into one's judgment.
18 But the record is clear that these people who have 19 this judgment came in and said 20 percent is a substantial 20 basis. 21 JUDGE MOORE: Can you tell us -- since you entered 22 the Krimm memorandum in evidence -- 23 MR. CHRISTMAN: As did FEMA, yes, we did. 24 JUDGE MOORE: - in front part of the memorandum, 25 when Mr. Krimm notes that research into this matter however Heritage Reporting Corporation (202) 628-4888 iO
c - 57 1 has revealed that anywhere from 3 to 20 percent of the (] 2 ovacuees arrived at relocation centers or shelter, what that U 3 research is? 4 MR. CHRISTMAN: Yes, sir. It's Mr. McNutt, who is 5 the expert at FEMA, and he has a data base. There is -- the 6 record will reflect that there is an the evacuation in this 7 country at least once a week, on average. There are lots 8 and lots and lots of evacuations. 9 FEMA tracks these things. Indeed, they have 10 reports of disasters that come in from the localities and 11 they have a data base. 12 And that researen was looking at the historical 13 record of accidents and how people behave. What people have 14 done in those accidents. And I can tell you, for instance, 15 he considered the Three Mile Island incident. He considered 16 the Mississagwa chemical spill. He considered the Taft l 17 Louisiana chemical spill. I don't remember what the 18 chemical -- l ( 19 JUDGE MOORE: Is all this in the record? 20 MR. CHRISTMAN: Yes, it is. There's a list in the 21 record. I think the county put it in cross-examination of 22 the -- there was a list provided to the county in discovery 23 of the -- at least some of the accidents or historical 24 events that Mr. McNutt and company had looked at, and I'm 25 pretty sure they put that into it. I think you'll find it Heritage Reporting Corporation (202) 628-4888
t 58 1 in -- 2 JUDGE MOORE: All right. Are those the same group 3 of disasters that your witnesses in 1984 relied on in 4 arriving at the 20 percent sheltering figure that your three 5 witnesses testified to and documented, if I remember 6 correctly? 7 MR. CHRISTMAN: Yes. I'm not sure -- some of them 8 were more -- Mississagwa is fairly recent. It was the same 9 basic historic data base. The historic data base shows that 10 very few people show up at reception centers. I think the 11 15 to 20 percent is at the high end. 12 In a place -- the record also will show that at a 13 place like Long Island where people come from New York City 14 and have -- well, there are lots of places to go on Long 15 Island. 16 The only people that go to reception centers for 17 shelter are people who don't have family and friends to go 18 to and can't afford a motel. I mean, that's the sad 19 historical fact and that's what the record shows, and it 20 showed that when Mr. McNutt looked at it and it showed it 21 when we looked at it, too. 22 23 24 Heritage Reporting Corporation
, (202) 628-4888
59 1 MR. CHRISTMAN: There is a fudge factor in that 20 2 percent. (]) 3 JUDGE WILBER: I though your earlier testimony was 4 based on some studies based by the center for disasters, or 5 I may have the thing all garbled there. 6 MR. CHRISTMAN: Oh no, but that is the historical 7 record. See they are the record. The disaster resource 8 center, they've gone out, and they send people to these 9 emergencies, you know the -- 10 JUDGE WILBER: As I recall, based on that, the 11 nuober was 20 percent. 12 MR. CHRISTMAN: Yes, but that's the way upper 13 limit. 14 JUDGE WILBER: No, no I mean based on the events 15 they analyzed, and the quick calculations showed it was 18 16 and a half, 25 and 20. 17 MR. CHRISTMAN: But that's either with the -- 18 right at the tail end of the distribution. It's up at the 19 upper half. At THI 183 people showed up at the relocation 20 center, for instance. That would be more typical. In a 21 place like Long Island, that would be more typical. 22 Yes, the 20 percent was used, but that was -- the 23 Red Cross had lots of 31 aces to stay, and they took a very 24 conservative, the 20 percent was very conservative for 25 sheltering. Which also, well, it's also appropriate for Heritage Reporting Corporation (202) 628-4888
60 1 sheltering and monitoring.
$ 2 MS. SHEA: That's right, that the Krimm memorandum
{N 3 starts with sheltering as a basis, and adds to it, a 4 quantity over an above that to arrive at a modern training 5 idea. That's -- 6 MR. CHRISTMAN: I believe that's right. You know, 7 they asked one of the FEMA witnesses, the county asked the 8 FEMA witnesses, well, this is based on sheltering, is it 9 just sheltering? And they said well, there were other 10 things offered by sheltering. I'm not sure. We can't say 11 they only went for sheltering. There are all sorts of 12 services provided at reception centers. 13 But if the question is, did these people go on 14 historical record for radiological monitoring, no of cour.se 15 not. There hasn't been a case like that. That's why FEMA 16 had to exercise judgement. 17 JUDGE WILBER: But surely FEMA's looked at dozens 18 of plans where some timing has been made and referred to Mr. 19 Moore's question. 20 MR. CHRISTMAN: They have certainly looked at -- 21 they review all of the plans. 22 JUDGE WILBER: There's nothing available to look 23 at, as I recall in the Krimm memorandum. 24 MR. CHRISTMAN: Well, he means there has never 25 been historic incident where you can - gives you -- to look Heritage Reporting Corporation (202) 628-4888 O ,
O 61 1 at empirical data on people who went for monitoring. There (-)
%/
2 is a historical, obviously there is a vast historical record 3 of how people behave in real emergencies, which is what we 4 wish to emphasize. 5 JUDGE MOORE: And is there an historical record 6 for emergency plans, or prior to 1985 what the planning base 7 was? 8 MR. CHRISTMAN: I think if you want a data base, 9 somewhere out there that tells what the capacity of the 10 reception centers are for the many other emergency plans for 11 nuclear plants in this country, it's hard to find it. We've 12 gone out and we asked -- 13 JUDGE MOORE: That suggests that it's not thero. 14 MR. CHRISTMAN: Well, I don't think it's been 15 scrutinized. See, the problem is it hasn't been scrutinized 16 on the record of these sorts of proceedings because it's 17 simply not litigated elsewhere. I mean everything is 18 litigated in the Shoreham case. 19 JUDGE MOORE: I'll grant you that -- that this is 20 the first time it's been J itigated, but I have a hard time 21 understanding how 97 plans could be approved without a 22 planning base for the monitoring figure prior to this day. 23 Either that or FEMA and/or the staff were asleep. 24 MR. CHRISTMAN: No, no, I don't think so. It's 25 not an issue there. They've simply set up e -- it's Heritage Reporting Corporation (202) 628-4888 O
62 1 litigated here, it makes no difference. 2 JUDGE WILBER: But doesn't J.12, whatever the 3 II.J.12, or whatever it is, isn't that a point that FEMA and 4 the staff should look at? 5 MR. CHRISTMAN: I'm sure they are. I would 6 venture to say that FEMA is certainly applying the Krimm 7 memorandum or -- 8 JUDGE WILBER: They must have numbers in or how 9 can they make a quantitative judgement on that? 10 MR. CHRISTMAN: Well, you're asking me, have we 11 gone out and looked at, for instance, exercise reports, and 12 plan reviews of other plans, to try to find out the numbers. 13 Yes we have. The answer was not crystal clear. 14 JUDGE WILBER: I' m sorry. r 15 MR. CHRISTMAN: The answer was not crystal clear. 16 It's not easy -- you can't find those numbers and make a 17 column, and look, we've tried. FEMA knows what it's doing, 18 and I believe they are reviewing these against the Krimm 19 memorandum, and they certainly exercise -- 20 JUDGE WILBER: Since 1985, what about before that? ' 21 MR. CHRISTMAN: Well, you know you're< going to 22 have to - you probably ought to ask someone from the 23 federal government what they did before then. I'm sure, I , L 24 know that FEMA's review program is an evolving process, and 25 I'm sure it is not a contentious issue in those days, ; Heritage Reporting Corporation (202) 628-4888 O
63 1 because it's after all, facilities, which are usually high 2 schools, or churches, for needs people. 3 JUDGE MOORE: We have held you over your time. 4 MR. CHRISTMAN: Oh, I'm delighted to be held. Do 5 I get a few paultry seconds to sum up? 6 JUDGE MOORE: Yes. 7 HR. CHRISTMAN: Okay, let's see if I missed any of 8 the questions you asked Mr. Case, I guess I made the point 9 that we' re not talking about predicting the number of people 10 we're setting up data base, that was the most important 11 message I wanted to deliver today. 12 I also wanted to mention the LULU issue, even 13 though nobody else has, I don't think anybody cares about 14 it. You know, even if you accept the proposition that 15 people around the, you can call it another type of shadow 16 effect, that people are going to flee fre those reception 17 centers in an emergency. The record ref. ;ts on page 18,600 18 and a couple pages before that, that it would be reasonable 19 to assume that the people would flee in panic promptly, and 20 they will therefore evacuate the area, and the background 21 traffic will go down, and evacuees will find it easier to 22 get to the reception contero. Likewise, you would reason 23 that the evacuees around the reception centers would 24 ovacuate away frem the reception centers where the evacuees 25 are coming toward them, and again that would make it easier. Heritage Reporting Corporation (202) 628-4888 1
64 1 So leaving aside all of the arguments we made in e b' 2 3 the briefs, if you look at the LULU issue, it, and if you believe it, which I don't, it helps the LILCO plan. 4 The short of the matter gentlemen, is that there 5 are no substantial issues in this appeal, except for the 20 6 percent issue, and there the record soundly supports the 7 decision the board reached. And I believe you should affirm 8 the license in this issue, and I thank you. 9 JUDGE MOORE: You're in the best position to bring 10 us up to date, I guess, on exactly where the litigation for 11 the license on LILCO stands. What parts -- are there 12 hearings going on before any licensing board? 13 MR. CHRISTMAN: I'll tell you what -- no. But I 14 can tell you what is now before the Gleason Board for 15 decision. We have the -- we have motions on the EBS system, 16 the emergency broadcasting system, and we have asked that 17 any remaining issues be resolved summarily. We have now the 18 issues of hospital evacuation time estimates, and bus driver 19 role conflict, that was submitted with up in the hearing in 20 May and June and I believe now is awaiting a decision. We 21 have a little hearing that was held in early July on the 22 conduct of discovery , and that in turn effects the issue of 23 the realism contingencies. But the important thing, I think 24 you want to know, since realism keeps coming up, is that the 25 realism contingencies are in the process of being resolved Heritage Reporting Corporation (202) 628-4888
65 1 in LILCO's favor. And the only thing we don't know yet is
~N 2 whether the licensing board is going to resolve them on the (J 3 merits as we have urged, or as a sanction against the 4 intervenors for refusing to go forward with the discovery of 5 the order.
6 JUDGE WILBER: Did you say the realism has been 7 resolved? 8 MR. CHRISTMAN: It has. The decisi... has not been 9 written. But in various tele-conferences, the board has 10 indicated that it is not going further with the realism 11 contingencies. 12 JUDGE ROSENTHAL: So there will be no hearing. 13 MR. CHRISTMAN: There will be no hearing. 14 JUDGE ROSENTHAL And when we're talking about the 15 realism, we're talking about whether they presume the best 16 efforts of the state and local governments following the 17 emergency plan of the utility, will be sufficient? 18 MR. CHRISTMAN: There will be no hearing. 19 JUDGE ROSENTHAL: No hearing. 20 MR. CHRISTMAN: But you will certainly get the 21 issue. 22 JUDGE ROSENTHAL: Well -- 23 MR. CHRISTMAN: You will get it without a hearing 24 record, except for the record on the conduct of discovery. 25 But -- Heritage Reporting Corporation (202) 628-4888
r. 66 1 JUDGE ROSENTHAL: We might be able to wait a
- 2 while.
3 MR. CHRISTMAN: I imagine one of the things you'll 4 be getting next is the bus driver role conflict decision, 5 and then there is the EBS. I hope that there will be no 6 hearing on the EBS, either because we've asked that there be 7 no hearing, we think there should not be. 8 JUDGE MOORE: You saw a summary disposition? 9 MR. CHRISTMAN: Yes. 10 JUDGE ROSENTHAL: The role conflict and the 11 hospital issues are ones that we remanded, right? 12 MR. CHRISTMAN: Correct, and we've now had those 13 hearings and they were very detailed and they will be coming 14 up and if anything the record in those hearings in even 15 better than the one in the reception centers. 16 JUDGE ROSENTHAL: Thank you. 17 MR. BACHMANN: May it please the board. The first 18 issue I think we really need to talk about since it was 19 brought up by the -- attorney, is the Belmore situation. As 20 a little background to that, if you'll note the letter I 21 sent to this review board on August 31, the second page, 22 there is a citation to the initial decision, which goes to, 23 what would that be, 27 NRC, pages 531-532. Where it has the 24 numbers for the capacities of the reception centers. I 25 believe that was a question an to where you would find those Heritage Reporting Corporation (202) 628-4888
67 1 numbers, and that's where it is. So that might help out a 2 little bit. 3 The -- it's been stated by counsel for interveners . 4 that there was a number of issues that would call for an 5 overall romand of the reception center issue back to the 6 licensing board because of the decision made by the New York 7 court. Since I saw the reaction of this review board to 8 the suggestion of a motion to re-open I'm not going to 9 pursue that any further. 10 The only thing that was said was that, well, 11 there's going to be an effect on traffic, for instance, or 12 maybe on the facilities. The licensing board said that the 13 ultimate capacity to monitor the number of evacuees as 14 planned, depends upon the rate of which the reception 15 centers can monitor them, and not the capacity of the road 16 system, to deliver the evacuees to the centers. 17 JUDGE ROSENTHAL: That may be so, but isn't it 18 fair to say, Mr. Bachmann, that the licensing board's 19 decision rested upon its assumption that there was going to 20 be three, not two, reception centers. And I don't see 21 anything in the licensing board's decision that said, well 22 we've got in effect, one reception center to spare. That 23 even if one of the reception centers went by the boards, 24 that there still is an adequate margin. The licensing board 25 had three reception centers before because that was what the Heritage Poporting Corporation (202) 628-4888
68 1 applicants had served up, and the decisions seemed to be e'T 2 based upon three. And it seems to me in that circumstance, b' 3 that at the very least, the matter would require a remand of 4 the licensing board to say okay, folks, your previous 5 assumption that there were three reception centers is now in 6 the rumor stage. Now there is minimum substantial doubt 7 that it will be a decision of the state Supreme Court in New 8 York and how do you come out with the two reception centers? 9 Why isn't that the appropriate judiciary course, if you 10 will? 11 MR. BACHMANN: It is one way of doing it sir. 12 JUDGE ROSENTHAL: Of course it's one way. But why 13 isn't it the appropriate one? 14 MR. BACHMANN: I would say just simply because 15 litigation must sometime have an end, and to -- 16 JUDGE ROSENTHAL: I haven't discovered that to be 17 an axiom that has much force in the annals of NRC 18 judicatio. 19 HR. BACHMANN: Certainly not with the Shoreham 20 case air. However, it -- when we have a situation where we 21 have a court decision, which the licensing board 22 acknowledges could occur, and suggested that the record 23 could be re-opened using proper motions at that time, which 24 was in the initial decision, we don't really know the 25 effect, and I would say that backing off perhaps from the Heritage Reporting Corporation (202) 628-4888 1 k
69 1 formal motion to re-open on the part of the interveners, if 2 that is not what the appeal board is looking at, that at 3 least they should be tasked with making some sort of prima 4 facie demonstration on how the removal of the Belmore center 5 -- 6 JUDGE ROSENTHAL: We have to make the 7 demonstration. The applicant was one that served up a plan B and had three reception centers. It seems to me, if one of 9 the reception centers had disappeared, it's the applicant's 10 burden, not that of the government to establish that the 11 illumination of this warm reception center -- 12 JUDGE MOORE: Well, in any event, isn't it 13 something that should be done in front of a licensing board? 14 MR. BACHMANN: Of course, the appeal board has the 15 power to take facts and make its decision since the record 16 has been closed. It depends on really, what are we talking 17 about. Right now, we don't know, as Mr. Christman has said, I 18 what the effect of that court decision will be. Perhaps 19 once we do know, I would suggest that -- 20 JUDGE ROSENTHAL: When are we going to know that? 21 One of the options that are available to the applicants is . 22 an appeal. I don't know what the course of appellate review l 23 is in New York, I assume go to the appellate division, and I l 24 would imagine, unless that court acts with -- then most i 25 appellate tribunals do, that would be a period of time. Are a l' i I Heritage Reporting Corporation (202) 628-4888 O l
c g 70 1 you suggesting that we sit back and simply hold this to wait ("N 2 and see whether there's appeal taken, or whether V 3 alternatively they seek a licenne from the appropriate local 4 officials, or whether they get somebody to override the 5 local zoning regulations, or what. We've got this case 6 right now before us. And it doesn't seem to me to make a 7 lot of sense for us to sit back and wait for future 8 developments. It may be months perhaps even years. 9 MR. BACHMANN: One of the members of the board 10 mentioned, I believe it must have been Mr. Moore that now 11 Belmor has disappeared. Belmor is still there as far as wo 12 know. I have difr'iculty with what I perceive perhaps to be 13 perhaps pre-judgement here, because the facility still 14 exists, they've not been ordered to discontinue it yet, or 15 to dismantle thingo. We simply haven't had a demonstration 16 of the effect of the court's decision. And that's where I 17 have problems with a wholesale remanding. 18 JUDGE ROSENTHAL It hasn't physically 19 disappeared, but it seemed to me that the judge's decision, 20 which inay or may not stand up on appeal, if there is one, is 21 pretty clear in its face. She holds that you cannot operate 22 this as a reception center, it's a practical matter, without 23 obtaining a permit or license or some kind of authorization. 24 How, that seems to be fairly clear. It doesn't 25 physically dispose of Delmore, but it looks to me that it Heritage Reporting Corporation (202) 628-4888
71 1 brings its utilization as a reception center into 2 considerable doubt. O 3 MR. BACHMANN: Well, as it was mentioned earlier 4 as a response to our question from Chairman Moore, that in 5 the event of a national emergency, and we skirt well into ( 6 the realism situation again, Mr. Christman pointed out that 7 it would be the governor or someone else would coms in and 8 step in ano do it. One must also, I believe, under the way 9 the Commission has set it out, assume that the local 10 authorities would cooperate. They would not turn these 11 people away. 12 JUDGE ROSENTHAL: Could it be used as a reception 13 center even under the realism doctrine if the requisite of l l 14 pertinencies weren't all there? I though that the whole 15 issue here was whether putting in certain structures or 1 l O 16 equipment was a violation of the zone laws. If that 17 equipment isn't there when the emergency occurs, I don't see 18 how the realism doctrine is going to help the utilization of 19 that facility as a reception center even if the governor, as l l 20 would be presumed, is prepared to do whatever is necessary. 21 MR. BACHMANN: Well, if we do apply the coalism 22 doctrine at that time, yes, that's quite correct. If at 23 that time certain of the facilities have been removed and 24 cannot be returned in time to be utilized. That's correct, l 25 we don't know if the judge is going to warn them to take Heritage Reporting Corport.tlon (202) 628-4888
72 1 these things out permanently. 2 In other words, the -- from what I'vu been 3 hearing, of course I'ri not involve in that part of the case, 4 in the state of New York, but what I've heard is that one of 5 the proposed orders is that are prohibited for's using this 6 as a reception center in the event of a radiological 7 emergency, that sort of thing, without, perhaps, without 8 requiring the dismantling of the trailers and the 9 facilities. We don't know that, that's the p roblem. 10 JUDGE ROSOCIEAL: Well, I would be hopeful that 11 judge would enter an order within a reasonable period of 12 time and maybe that will answer s11 of the speculation that 13 leads us to what she is going to direct. 14 MR. BACHMANN: Well, my suggestion, and I believe i 15 I'm trying to get back to answering your question as to what 16 should be done, and I, or position is that a flat remand 17 certainly at this tima to the licensing board, would really 18 be, I wouldn't want to say a waste of resources, but it 19 would certainly use a lot of them for -- needlessly, t.. the 20 extent that this issue could be brief,d, and probably, and I 21 would suggest affidavits submitted, so that this board would 22 have an opportunity to have a feel for the loss of Belmore, 23 what would that entail. These are the -- wl.at has been 24 decided already by this licensing board. Then we might have 25 a more focused type of situation where this sort of Heritage Reporting Corporation (202) 628-4888 O
73 1 licensing board could look at it. 2 JUDGE ROSENTHAL: Why shouldn't the licensing 3 board look at this issue in the firs instance? 4 MR. BACHMANN: Are you saying that the issue could 5 be briefed and all that? 6 JUuGE ROSENTHAL: Certainly it would be briefed, 7 why shouldn't it be briefed before the licensing board? 8 MR. BACHMANN: Are you suggesting that this appeal 9 board would send the court decision back to the licensing 10 board? 11 JUDGE ROSENTHAL: Well a possibility would 12 certainly be an order out of this board saying that there 13 has been a new development since the licensing board's 14 decision, a development that the licensing board recognized . 15 might occur, but it indicated that it didn't want to deal 16 with unless an -- occurred. The dimensions of this new 17 development are uncertain, sending it back to the licensing 18 board to deal with it as you see fit, and one would hope you 19 would get additional information along the way, at least as 20 to what the state Supreme Court Justice is going to order. 21 Why is it appropriate for it to do that rather than for us, 22 isn't ; hat the normal course of the judicatio, when you get 23 a possibly significant development? I think most of public 24 courts in that circumstance put it right back to the trial 25 court? They said deal with it, there's been this new Heritage Reporting Corporation
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74 1 development. 2 MR. BACHMANN: Phrased the way you have, it seems 3 like it would be an appropriate manner of handling it. 4 JUDGE ROSENTHAL: You would phrase it differently? 5 MR. BACHMANN: No, no, it was the way you ph' rased 6 it. My phraseology I don't think would work. The point, I 7 guess, I was trying to make also though is that to ths 8 extent that this is -- does not effect, for instance we've 9 got the four points on appeal, none of which seem to be 10 effected by this development in the state court. That 11 certainly can be decided by this tribunal without necessity 12 of doing anything else. That's an important point I'd like 13 to make. To the extent that there may be an effect by the 14 judge in the State Supreme Court sending it in fact for the 15 licensing board to determine the extent to which it effects 16 its prior decision, and to take whatever steps necessary to 17 gain more information, I would say that's sn entirely 18 appropriate way of doing it, to the extent thnt it would 19 effect it. 20 There's no more on that. The planning basis is a 21 word that has been flipped around so many times, I'm not 22 even certain if anyone knows what it means any more. 23 Planning basis is sort of a semi-term of art used by our 24 emergency planning people in FEMA. It's a situation where 25 you must have a plan and you must have so much ia the way of I Heritage Reporting Corporation (202) 628-4888
75 1 people and facilities to do certain things, it's not just 2 the number of people, it could be a lot of othe sdifferent 73 s 1 3 things. I mean, it's not just the number of people you 4 expect to ride to a reception center, it could be the number 5 of trucks you need to do certain things. You just have a 6 planing basis. 7 JUDGE HOORE: Prior to 1994, December 24 actually, 8 I'm sorry of 1985, what number did the staff use as a 9 planning base? 10 MR. BACHMANN: For what? 11 JUDGE MOORE: For monitoring? 12 JUDGE WILBER: II.J.12. 13 MR. BACHMANN: II.J.12, I don't think they 14 actually had a number to tell you the truth. I believe what 15 they did, and I was not on the case at the tin;e, I was not 16 involved in this particular type of situation, so I 17 apologize for not being able to answer directly, but from 18 what I understand, and given the range, what we do know 19 about other plans, that II.J.12 was used in a -- I don't 20 think they had a specific number. If someone came up with a 21 number that looked reasonable, I believe that they probably 22 looked at the reasonableness of it. But again, that is 23 really a FEMA determination, also. 24 And of course, FEMA works with the staff, is not 25 the staff, so I can't really speak to them. ( Heritage Reporting Corporation (202) 628-4888
76 i JUDGE MOORE: Final call for the NRC, is it not? 2 MR. BACHMANN: That's correct. 3 JUDGE MOORE: So it's not really FEMA's 4 determination, it's yours. 5 La. BACHMANN: Well, we give them great deference, 6 just as a licensing board. 7 JUDGE MOORE: Sounds to me like you're advocating 8 that responsibility. 9 MR. BACHMANN: It's a situation where the on-site 10 emergency planning was put into our bailiwick, and the off-11 site evolved upon FEMA, and that was decided -- 12 JUDGE MOORE: C7n you tell us what the historical 13 number is for other plants? 14 MR. BACHMANN: No air I catu't. ! 15 JUDGE MOORE: Can ,'rou tell us what any other 16 plants are doing in this regard, what their planning base 17 is? We know from the record that 36 percent is 9 mile 18 point, we don't know why, however. How about Salem right 19 down the road? l L 20 MR. BACHMANN: Sir, I couldn't testify -- 21 JUDGE MOORE: Give me a point? 22 MR. BACHMANN: No sir, I couldn't testify to that. 23 However -- l 24 JUDGE WILBER: Cottid I take another attack on an ! 25 item here? The board accepted that 20 percent value, but I Heritage Reporting Corporation (202) 628-4888 ,
77 1 understood that they accepted it only if there was a clohr 2 concise communication with the public as I tocall their O i 3 words. And then they went on to say that they hadn't seen 4 that yet, as I recall, or words to that effect. 5 Now, my question is, they didn't make that a 6 condition for the license or anything, and it should just be 7 some kind of a condition? Because it appears the board 8 thought it was a necessary thing that was not there. 9 MR. BACKMANN: No I don't believe so. The board 10 made that assumption that it would be there. 11 JUDGE WILBER: But based on their further thoughts 12 there, that they were reasonable sure that it hadn't been 13 there in the past, so how can they assume that? 14 MR. BACHMANN: Are you referring to its reference 15 to the oral 5 exercise results? l O 16 JUDGE WILBER: I have not idea what it was 17 referenced to, but they -- 18 MR. BACHMANN: They indicated in the February 1988 19 decision on the exercise that they were not too happy with j 20 what the board found in the way of emergency broadcast l 21 system, and I think that's the part you might be referring 22 to. l 23 JUDGE WILBER: It could well be. LBB 882. I 24 MR. BACHMANN: That's correct. And of course that i 25 is also on appeal, and there's been a subsequent axercise, i Heritage c Reporting Corporation (202) 628-4888
78 1 and given the bounds of the issues presented to this 2 particuler licensing board that we're discussing here, that 3 that was an assumption the board made, was not challenged. 4 And in fact, it was not raised as an issue on appeal. 5 JUDGE ROSENTHAL Do you agree with Mr. Christman h 6 that Belmore is now our of the picture, that there's no reason for explanation as to all of the traffic patterns. 8 And tha traffic pattern changes would be essentially 1 9 insignificant? 10 SR. BACHMANN: The way I read the board's initial I 11 decision that's being on appeal right now, is that it agreed 12 with the traffic experts of the staff and the applicants and '1 13 that is the controlling factor of the traffic was as you lL i 14 came into the reception center. And the number of people 15 that could be monitored. Because all the rest of it didn't s i' 16 really count. 17 J'JDGE ROSENTHAL: So it doesn't matter whether 18 these people were going to Belmore or whether they were .
]
19 going to Hicksville? l l 20 MR. BACHMANN: Well, what I'm saying is that the 21 board made findings that from the time these people perhaps 22 left their home, or certainly since they left the EPZ, and l 23 they're coming to the reception centers to be monitored, 24 that the single over-riding factor was the speed at which 25 they could process people in the reception centers --
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79 1 JUDGE ROSENTHAL: They had to get there. 2 MR. BACHMANN: Right. But they would be queuing 3 on the reception centers. > 4 JUDGE WILBER: That's predicated I'm going to 5 three centers and not two. Now this que would be longer 6 than the two remaining one by whatever percentage it is 7 here, but -- 8 MR. BACHMANN: That's correct, which means that 9 the queuing would be even more of a factor determining tha 10 capacity and the usabilities of the reception. 11 JUDGE WILBER: Yet the monitoring rate remadna the 12 sams, Jo is it now queuing the controlling item or is it 13 monitoring the controlling item? j 14 HR. BACRMANN: Maybe I misspoke here. What I'm 15 saying is that because of the speed at which people were
- 16 monitoring, that traffic really was not an issue, it turned 17 out not to be an issue until you got to the line of the 18 reception center.
19 JUDGE WILBER: That's with three centere. 20 MR. BACHMANN: That's with three center. 21 JUDGE WILBER: Now you have all of those that were l 22 going to Belmore in the lines for the remaining two. , 23 MR. BACHMANN: Therefore the queuing that 24 situation is going to be even more so the controlling factor 25 as far as traffic, and now what happens from the time the ; i Heritage Reporting Corporation (202) 628-4888 1
80 1 person leaves their home to get to the reception center. In other words, the capacity and the ability of {}2 3 the reception centers, numbers of people and all that sort 4 of thing, is to a large part dependent, excuso me, let me 5 back up for a second, the traffic concerns turn out to be 6 not a concern, because when you got to the number of people 7 involved, in other words, we were locking at traffic to see, 8 can you get so many people to the reception centers and 9 through the reception centers? And that's why we looked at 10 traffic.
- 11 We found out that the traffic along the way was 12 not the controlling factor, what was the controlling factor 13 was getting through the reception center.
14 JUDGE ROSENTHAL' I don't know about controlling factor, but if all of the people are going through wherever {}15 16 they are at the time of the accident within the EPZ to the 17 reception center which is at a considerable distance, have 18 to go over some road to get there. Now the argument of Mr. l 19 Case, if I understood it correctly was that we will have 20 three reception centers. You have traffic patterns to each 1 21 of those reception centers. And now that you have two 22 reception centers, so ell of these people from these various 23 locations within the EPZ, or going to reception centers over 24 roads, but the traffic patterns are going to be somewhat 25 different, und his suggestion as I understcod it was, this i Heritage Reporting Corporation (202) 628-4888
81 , I 1 was something that would have to be explored on a remand. 2 Now, if I undetstood Mr. Christman correctly, he 3 maid that an important fact, the differences in traffic i 4 patterns and flow was a normal event to two reception 5 centers as opposed to the three would not be significant. 6 That was his argument. So what I was asking you was whether 7 you agree with Mr. Christman that the impact upon traffic 8 patterns and routes and all of that with everybody going to 9 the two centers instead of the three, is sufficiently 10 insignificant contrary to the suggestion of Mr. Case that's 11 not something that would have to be explored. , 12 HR. BACHMANN: I agree with Mr. Christman for the 13 reasons that I said to Mr. Wilber. That is the concern of 14 traffic is can you get enough people to the reception 15 centers and process them? That's the reason you look at the 16 traffic flows, or are there going to be any tremendous 17 bottle necks -- 18 JUDGE ROSENTHAL: Or -- that's right. 19 MR. BACHMANN: We've discovered over the course of 20 the hearing with much testimony and much analysis and I . 21 presented that particular testimony like it was marked up i 22 from the staff, that that wasn't the problem, getting to the 23 centers. 24 JUDGE ROSENTHAL: Why isn't it a problem? 25 MR. BACHMANN: The number of people that can be Heritage Reporting Corporation (202) 628-4888 i ()
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82 1 processed in an hour, and the figures on page 531, is 2 dependent on the ability of the monitoring station. And you 3 would have basically, shortly after you started the 12 hour 4 clock is that you're going to start forming lines of cars. 5 So it really doesn't make any difference if people get stuck 6 in bottle necks down the way, you're going to have this 7 constant queuing situation throughout most of the -- 8 JUDGE ROSENTHAL: You mean you're suggesting that 9 they're going to be backed up from the reception center for 10 45 miles into the area around the plant, is that it? And 11 it's going to be sort of like the escalator, that they're 12 going to move up one car at a time? Is that your scenario? 13 MR. BACHMANN: My scenario is there will be ques 14 but certainly not in the distance of 45 miles. The queuing ' 15 will begin shoctly after we start the 12 hour eLock running, 16 I believe it was in an hour or so. 17 JUDGE ROSENTHAL" It is about 40 miles, isn't it, 18 to these reception centors to the EPZ? 19 MR. BACHMANNt Not quite that far -- 20 JUDGE ROSENTHAL: Well wait a minute, from the 21 other side of the plant the EPZ portion and the other side l 22 of I guess if I'm right about my geography to the east of 23 the plant on the island, how far is it from there to 24 Hicksville? I though it was at least 40 miles? I 25 MR. BACHMANN: Yes, from the other side. j I Heritage Reporting Corporation t (202) 628-4888 ! l s-) i i I E
83 1 JUDGE ROSENTHAL: Their people were considering 2 that. t
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(^J L 3 MR. BACHMANN: I guess what I'm getting at is 4 you're going to have the same traffic patterns until you get 5 to wilhin a few miles of the reception centers, whether 6 you've got Belmore there or not. 7 JUDGE ROSENTHAL: That's when they're going to 8 branch out? 9 MR. BACHMANN: That's when they'll go either north 10 or sough. Now you're producing 500 somo odd more cars an 11 hour north instead of south. I believe 7. made a mistake -- 12 JUDGE WILBER: Well, I have another question. The 13 board seemed to rely on the staff testimony that the 12 14 hours and I think it's I.J.12, I hope have the right NUREG 15 0654 number. But they said that 12 hours had no bearing on 16 health and safety as I recall. Now is this typical staff 17 motion that they will impose a condition like that which has 18 evidently cost a fair amount of time and money here, where 19 there's no health and safety benefits? 20 MR. BACHMANN: I wish -- 21 JUDGE WILBER: What time is health and safety, 22 when does it come into this thing? 23 MR. BACHMANN: I wish I had my witnesses' exact 24 quote. From what I understand from what he told me was that 25 it was not, we didn't look at 12 hours and come up with that Heritage Reporting Corporation (202) 628-4888
84 1 number because if you exceeded it you're going to get a 2 certain amount of dose, and if you're in under it you're not i 3 going to. Obviously they want to be able to get people in 4 and out and monitored, and check to see whether they've got 5 contamination. 6 But it was a figure that was arrived at. But of 7 course 0654 and a lot of these things were designed by . 8 committees, so you can imagine that. It had of course, the 1' 9 effect on public henith and safety, otherwise it wouldn't be 10 in there, but on the other hand, to come up with a 11 particular number, there was nothing magic about using dose 12 calculations to come up with 12 hours, no. That was done to
- 13 ensure that when people were planning that they marshalled 14 enough resources to be able to do what they were supposed to 15 do within what we considered a reasonable amount of time.
16 And also we wanted to make sure that people weren't kept 17 waiting for a couple of days, which I think was an example 4 l 18 cited by the witness at one point. 19 Since I have over-stepped my time, I'd just like i 20 to make one more last statement, that -- 21 JUDGE MOORE: A quick question on your witnesser' 22 study on the footprint, and who would be at risk. 3 23 MR. BACHMANN: Yes sir. 24 JUDGE MOORE: When that was done from his 25 testimony I can't tell, nor can I tell with any degree of Beritage Reporting Corporation (202) 628-4888
85 1 accuracy from the licensing board's decision, that when each 2 slice of the pie is being considered, did it take into (-]/ w. 3 account that 22 and a half degree segment on either side of 4 the primary segment for his footprint? 5 MR. BACHMANN: To the best of my recollection it 6 did. 7 JUDGE MOORE: It did. 8 MR. BACRMANN: But that's just to my recollection 9 at this point, without looking back at the figures I can't 10 tell you. 11 ' JUDGE WILBER: Also in his Festimony earlier in 12 his analysis, it appeared to me that he was weighing this , 13 thing by predominant wind directions, or by percentage of 14 wind directions. Now does this spply in every instance? Which would mean that you would never have 100 percent of (}15 16 the population from any sector effected. It would 17 necessarily be less than 100 because you don't have the wind 16 blowing in one direction 100 percent of the time. 19 MR. BACHMANN: That's probably a true statement. 20 That it would not in that way -- 21 JUDGE WILBER: Dut it would not blow in one 22 direction 100 percent of the time in an accident. As I read 23 it they took a clock that goes over the years, evidently, 24 and it blows to the north / northeast x percent, and maybe to 25 the east / northeast a wide percent, and they weighted his I l ! Heritage Reporting Corporation (202) 628-4888
86 1 number of people that he would consider by these values. 2 MR. BACHMANN: That's correct, but we're also 3 dealing with a time situation here. It's been estimated 4 that the EPZ would be evacuated in approximately six hours 5 in good weather. So over a certain number of hours, you 6 would just have -- you would take the probability of the 7 wind blowing a certain direction. 8 What I'm saying over a whole year -- 9 JUDGE WILBER: But his analysis did not consider 10 that. That's the point I'm taking. He weighted these by 11 the wind direction. 12 MR. BACHMANN: That's correct. 13 JUDGE WILBERt Which would reduce the number of 14 people would be in any one of his footprints. 15 MR. BACHMANN: Well he also, for instance, out of 16 the conservatism that nobody left. In other words, if there 17 were a plant accident he weighed that against the idea that 18 he assumed that everybody just stayed there on their front 19 yards and waited for the plume to come over, rather than 20 getting in their car and going away. So there were ( 21 conservatisms back and forth on that particular calculation. 22 23 24 Heritage Reporting Corporation (202) 628-4888
87 1 MR. BACMMANN: I would just like to make one last 2 statement and that is the reason that the issue of the 3 monitoring population planning base we have got here is so 4 long and convoluted. I am not even certain if anyone can 5 follow it anymore. 6 I do know at one point the Appeal Board felt it 7 wasn't even a proper issue to be heard. Then the Licensing 8 Board convinced the Appeal Board and we went back and forth 9 a couple of times. 10 But the real basis of it is, the Licensing Board 11 said there was no evidence to accept 20 per cent. Now we 12 have got lots of evidence. The Intervenors are unhappy that 13 the Board, the Licensing Board, weighed the avidence and 14 found out that the Applicant's evidence and that presented 15 by FEMA and the staff outweighed their evidence. 16 To say that this is just based on sheltering data, 17 that is the only, what I consider a good argument, because 18 they used it at the upper end of the sheltering data to take 19 into account the fact that we don't have any data for 20 pecple, for large radiological emergencies such as what we 21 are pocing here. 22 Therefore, it has to be predictive . The only 23 evidence that the Intervenors brought in on this case 24 essentially was their monitoring shadow concept based on 1 25 public opinion polla. Heritage Reporting Corporation (202) 628-4888
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88 1 The Applicant had previously used public opinion
)2 3 polls and determined that they didn't work. There were at least two psychologists who testified as to the invalidity 4 of public opinion polls as, of course, the Intervenors 5 brought in their people that said they are wonderful.
6 So there was the weight of the evidence and we had 7 experts differing upon the validity of these polls and the 8 Board and the Staff's view came down and made the right
'i decision.
10 Thank you very much. 11 JUDGE HOORE: Rebuttal? 12 MR. CASE: Given the Board's patience here with 13 counsel I intend to be extremely brief in rebuttal, and just 14 raise some of the points almost in a factual manner which 15 the Board has discussed with other counsel. 16 The Board has indicated a cencern about what the 17 judgment would be of the New York Supreme Court, and I have , i l ', 18 here copies I can distribute to the Board now or later of 19 LILCO's proposed judgment in that case. 20 The proposed judgment of LILCO says, unless 21 authorization is maintained, this is what tne Court would 22 order. ; 23 "It is hereby immediately and permanently l t 24 restrained and eajoined from using the premises identitled 25 in the Complaint as an emorgency evacuation, radiological i Heritage Reporting Corporation ! (202) 628-4888 , O. . I t i
l 89 l m, i 1 assessment, decontamination and reception conter for purposes or vehicles in the event of a radiological (}2 3 emergency at the Shoreham Plant." 4 For a minimum, we know that Order is going to be 5 entered. 6 JUDGE ROSENTHAL Do you have any idea when that 7 Order is likely to be issued? 'l 8 MR. CASE: I really can't -- obviously, all
+
9 parties followed this case to some degree. The Judge was i 10 expeditious in resolving the cross motions for summary ! 11 judgment. f 12 I think it took her, once it was fully briefed, ! 13 less than 90 days to actually reach a decision on the ; 14 merits. So, since the two proposed Orders are before her 15 now, I would assume it would be fairly quickly. 16 JUDGE ROSENTHAL: Well, obviously, Summary is going [ 17 to supply us with the Order when it is in fact issued. 18 I have a question or two for you. One of them is, I 19 your advarsaries particularly Mr. Christman, suggest that j 20 while it is true that Mr. Krimm did not testify himself that l c 21 there is an abundance of expert testimony coming from both [ 22 Applicant and Staff witnesses which support the Krimm E 23 analysis and conclusions. r 1 24 With the consequence that what your endeavoring to 3 25 do is to challenge the Licensing Board decision which had an Heritage Reporting Corporation (202) 628-4888
90 1 adequate evidentiary foundation. So I would like your (} 2 3 response to that. I would also like you response to the suggestion 4 that the difference in traffic patterns that would flow from 5 the elimination of Belmore is e sentia11y no never-mind. 6 So that it isn't the kind of concern that you 7 suggested it was in your opening argument. 8 MR. CASE Let me respond to your second question, 9 first. 3 10 I always enjoy Mr. Christman's argument and he is 11 a very articulate man, but that is exactly what the Board 12 heard today here, was argument. There is no evidence on the 13 record as to what would happen with two reception centers, 14 where the traffic would go, i Our point is exactly that which I believe Mr. l (}15 16 Wilber made which was, we think at some point it is likely, 17 possible, we don't know. Because we don't know what is 18 going to happen. We haven't noen anything. 19 That queues will be the determining factor. 20 Queues from one plant will interrupt the flow to the other 21 plant. 22 So, until we know what is guisig to happen, how 23 resources are going to be divided up, how the populace will 24 be divided up -- Mr. Christman can describe various routes 25 to the reception centers for a long time, but we are Heritage Reporting Corporation (202) 628-4888
91 1 operating back in the speculation. 2 One other point that gets overlooked here is that 3 these reception centers have a decontamination function as 4 well as a monitoring function. The trailer which was at 5 Belmore is now no longer available. 6 Aro they going to send one up to, this additional 7 trailer to Hicksville? Is there room there? 8 Are they going to send it to Roslyn? Is there 9 room there? 10 Is it going to go to a third facility? 11 Being facetious here, are they going to split it l 4 12 in half and send the men's side to one? We just don't know 13 at this stage. 14 And that is the reason we believe a romand is 15 appropriate. i 16 How responding to the question of the Krimm 17 memorandum. Now matter who testifies about the Krimm l 18 memorandum, the basic fact is that memorandum is based on 19 sheltering data. 20 Mr. Christman referred to an exhibit which goes , 21 over that data. For the Board's convenience, it is Suffolk 22 County Exhibit No. 33, which lists the data, or some of the ) ! 23 data apparently considered in the Krimm memorandum. 24 Including Mississagwa train derailment, which was in 1979. 25 In point of fact, this is the exact same data base i Heritage Reporting Corporation (202) 628-4888 ] i
r 92 1 the Board rejected before, and what gets neglected hero 2 during this argument and discussion -- and I am sure Mr. 3 Zahnleuter and his witnesses would be offended by this -- is l 4 that the New York State Radiological Emergency Preparedness 5 Group, another group of professional emergency planners, ; f 6 testified that they believe 100 per cent of the EPZ was the 7 appropriate planning basis. , 8 Now this also goes to the question raised by < 9 Chairman Hoore, which is, do we have any historical data 10 here? And for the Board convenience, at pages 44 and 45 of 11 the government's proposed findings, we submit the data from i 12 the Ginna, the Nine Mile Point, Fitzpatrick, and the Indian 13 Point Plant. 14 The citations of record are there, and essentially i it is emergency planning personnel and the counties
} 15 '
16 responsible for responding to emergencies at two of those 17 sites, Ginna and Nine Mile Toint, certified to FEMA that , I i 18 they had sufficient numbers of monitoring personnel to l 19 monitor 100 per cent of the EPZ population in the J.12 i i 20 limits. 21 Now it is true that at Indian Point there is not l 22 100 per cent. But at those two plants, there is 100 per 23 cent and there is evidence in the record, t i 24 We believe that what happened here, there was no ! l 25 weighing of evidence. There was no preponderance finding. I l Heritage Reporting Corporation ( (202) 628-4888 l I O . l I
93 I 1 There was simply an acceptance of the Krimm memorandum, 2 which is based on data we don't believe and which we believe 3 the Board has held simply doesn't speak to the question of 4 how many people we should plan for. 5 JUDGE HOORE: Can you explain for me, and I have [ 6 obviously missed something in all of this discussions in 7 these briefs, on what the logical connection between meeting ; 8 sheltering and meeting monitoring is? So why do you use 9 sheltering as any kind of a basis to determine the latter? ! 10 MR. CASE: That has been the government's point at . 11 the beginning of this hearing. There is no logical { 12 connection between the two. 13 It is an invalid data base for the conclusions 14 that are reached. There is no logical nexus between the ; 15 number who need sheltering and the number who need 16 monitoring. 17 JUDGE MOORE: Because the function, the reason you 18 go, is totally different? 19 MR. CASE: Exactly. You go for sheltering because j 20 you can't afford a hotel, you don't have relatives nearby. That is why you go for sheltering. I 21 22 You go for monitoring either because you are told 23 to go for monitoring, because you might be exposed to the 24 plume EPZ, or because you have fears -- 25 JUDGE ROSENTHAL: Everybody that goes for Heritage Reporting Corporation (202) 628-4888
94 1 sheltering gets monitored whether he or she wistas it or 2 not, is that not true? [ 3 MR. CASE: Well, I say -- 4 JUDGE ROSENTMAL: So that the sheltering is a 5 floor for the number of people that are monitored, I would 6 think. 7 MR. CASEt We would agree to that, and obviously 8 there may be a person who doesn't want to be monitored. 9 But, yes, we believe that sheltering in fact operates as.a 10 floor to this, and really doesn't provide the logical basis 11 for any sort of conclusions about who will be there for 12 monitoring. 13 JUDGE ROSENTHAL: But the fact remains, does it 14 not, that we are really again in the world of total 15 uncertainty. I mean, there isn't any, is there, pragmatic 16 basis for determining how many people are likely to turn up 17 for one reason or another for monitoring in the event of a 18 radiological emergency? 19 We have no prior experience. Three Mile Island, I 20 suppose, is the closest but it doesn't, as far as I know, 21 provide a very firm basis. 22 So this is totally in the realm of speculation. i 23 Is that not so?
'4 MR. CASE: Well, I --
l l 25 JUDGE ROSENTHAL: And, if it isn't so, you give me 5eritage Reporting Corporation (202) 628-4888 1
l 95 1 the quasi-scientific or basis for making an informed 2 estimate. 3 MR. CASE: All right. Like I always say, I don't 4 like to tell other people how to rvn their case, but as I 5 tried to indicate to the Board before, we can start off with 6 the basic approach to who would require monitoring. Who 7 would be ordered to monitoring? 8 How can we plan in the likelihood of that event? 9 The Hulman analysis was a start. Now, we wouldn't 10 concede that the Hulman analysis is accurate or conservative 11 at all, but there are computer codes that can take into 12 account wind shift. You can get a very, if done correctly, 13 approach to the number of people who would be required to 14 have monitoring and a conservative estimate there. on top of that, you would want to calculate -- and ( } 15 16 obviously, this can't be done on a mathematical certainty -- 17 the number of people who are likely to go for monitoring 18 oven though they are not in that group that is ordered for 19 monitoring. 20 JUDGE ROSENTHAL: But how do you arrive at a 21 figure? Is this what, a psychologist's appraisal of a 22 number of people that would be effected by a fear factor, or 23 what? I mean, how do we get to this? 24 MR. CASE: I think you would have to combine both 25 a quantitative and a qualitative approach. The quantitative Heritage Reporting Corporation (202) 628-4888 O
96 1 approach being some sort of survey to try to identify the q 2 characteristics of people who would act this way. This is 3 done in civil litigation all the time when you try to 4 predict who on a jury array will vote your tray. 5 JUDGE ROSENTHAL: Sometimes, you are dead wrong. 6 MR. CASE: Oh, yeah. Well, that is always a risk, 7 but we are trying to reach some sort of determination as to 8 some -- t 9 JUDGE N00RE: Was the Krimm memorandum fortuitously 10 issued for this case? 11 MR. CASE: Well, we cast some doubt upon the 12 circumatances of issuance. 13 As I recall the FEMA testimony, it was that one of 14 the FEMA witnesses actually requested this memorandum 15 because, as I recall, he said, "We knew we would be looking 16 at this issue." 17 He said, "We would be right back in this courtroom 16 on this issue, again." 19 And so in our belief, there is some problem with 20 the way that it was issued and that it was directed towards 21 this case. And it was very hastily done, as I recall. 2;l There is no attempt at studying the issue in the 23 way we believe it should be studied before the Krimm 24, memorandum was issued. 25 I would just like to conclude on one point that Heritage Reporting Corporation (202) 628-4888
97 What possible hearings are 1 was asked of Mr. Christman. 2 there below? The government would take the position that we 3 4 can't yet say with any certainty that there will be no 5 hearing on the realism issues. He will have to wait for the 6 decision of the Board on that. It also the government's position that there is 7 8 likely to be a hearing on the recent uxercise that was 9, conducted for the Shoreham Plant. I missed that. Did you say there JUDGE WILBER: 10 11 is a potential for hearings on the realism? we MR. CASE Well, the government's position is, 12 We are not in the habit of predicting how, 13 just don't know. l 14 with any degree of certainty, how the Licensing Board wil determine what it is going to determine. g 15 Until we see an order, we would just simply 16 17 indicate that it is a possibility. JUDGE MOORE: Mr. Christman has said that the 18 it won't go to hearing. Is 19 Licensing Board has stated that 20 that your recollection? Mr. MR. CASE: I do not work on that proceeding. 21 22 McMurray is a little more familiar with that. JUDGE MOORE: All right. 23 MR. CASE: But our understanding is, there is 24 25 still the possibility of a hearing, lleritage Reporting Corporation (202) 628-4888 9
97 ; I was asked of Mr. Christman. What possible hearings are
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2 there below? 3 The government would take the position that we f 4 can't yet say with any certainty that there will be no r l 5 hearing on the realism issues. We will have to wait for the l 6 decision of the Board on thst. l 7 It also the government d a position that there is 8 likely to be a hearing on the rmeent exercise that was ; 9
- conducted for the Shoreham Plant. i i 10 JUDGE WILBER I missed that. Did you say there i
11 is a potential for hearings on the talism? I 12 HR. CASE Well, the government'4 position is, we , 13 just don't know. We art not in tne habit of predicting how, l j 14 with any degree of certairty, how the Licensing Board will l 15 determine what it la going to determine. f i i 16 Until we see an order, we would just simply
- t 17 indicate that it is a possibility. ,
18 JUDGE HOOPE: Mr. Christtaan has said that the 19 Licensing Board has stated that it won't go to hearing. Is t 20 that your recollection? f 21 HR. CASEt I do not work on that proceeding. Mr. , 22 McMurray is a little more familiar with tTat. 23 JUDGE HOORE: All right. [ 24 HR. CASE: But our understanding is, there is 25 still the possibility of a hearing, j i I Heritage Reporting Corporation ! (202) 628-4888 ( O ! l 4 se -
98 1 Thank you. 2 JUDGE HOOM: Thank you. The case will stand 3 submitted. I 4 (Whereupon, there being nothing further, at i j 5 4:05 p.m., the meeting of the Atomic Safety and Licensing 6 Appeal Board was concluded.) , 7 r 8 i 9 10 l 11 4 j 12 l 13 14 02' 16 l t 17 i
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25 f meritage Reporting Corporkeion (102) s2s-4ses
1 CERTIFICATE (1) 3 This is to certify that the tachsd proceedings before the 4 United States Nuclear Regult.t- , . e.%mir;sion in the matter 5 of: 6 Name: LONG ISLAND LIGHTING vuMPANY 7 8 Docket Number: 50-322-OL-3 9 Place: Bethesda, Maryland 10 Date: September 14, 1988 11 were held as herein appeare and that this is the original 12 transcript thereof for the file of the United States Nuclear 13 Regulatory Commission taken stenographically by me and, 14 thereafter reduced to typewriting by me or under the 15 direction of the court reporting company, and that the f( ) 16 transcript is a true and accurate record of the foregoing 17 proceedings. 18 /s/ y a 19 (Signature typed) : MARGARET DALY 20 Official Reporter 21 Heritage Reporting Corporation 22 23 24 25 Heritage Reporting Corporation () (202) 628-4888
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