ML20154E476
| ML20154E476 | |
| 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-#388-7129 OL-5, NUDOCS 8809190011 | |
| Download: ML20154E476 (93) | |
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. UNITED STATES O NUCLEAR REGULATORY COMMISSION l
In the matter of: )
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LONG ISLAND LIGHTING COMPANY ) Docket Number 50-322-OL-5 i
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- (Shoreham Nuclear Power ) '
I Station, Unit 1) )
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Pages: 1 through 91 Place: Bethesda, Maryland Date: September 14, 1988
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' HERITAGE REPORTING CORPORATION f* l OD1delReporters i 22 a ' s'r < s
1 UNITED STATES NUCLEAR REGULATORY COMMISSION !
ATOMIC SAFETY AND LICENSING APPEAL BOARD O In the Matter of
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LONG ISLAND LIGHTING COMPANY ) Docket Number 50-322-OL-5 [
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(Shoreham Nuclear Power )
Station, Unit 1) ) ;
)
Wednesday, September 14, 1988 ,
Public Hearing Room 4350 East-West Highway Bethesda, Maryland j The above-entitled matter came on for hearing at l 9:33 a.m.
BEFORE: HONORABLE CHRISTINE N. KOHL, Chairman
- FOR THE BOARD
i l JUDGE AIJf.I S. ROSENTHAL JUDGE W. REED JOHNSON i
APPEARANCES:
i On behalf of the Aeolicant l l
DONALD P. IRWIN, ESQ.
l KATHY E. McCLESKEY, ESQ.
Hunton and Williams 707 East Main Street Post Office Box 0535 Richmond, Virginia 23212 On behalf of_ the Intervenors:
MICHAEL S. MILLER, ESQ.
SUSAN M. CASEY, ESQ.
P. MATTHEW SUTKO, ESQ.
! Kirkpatrick and Lockhart 1800 M Street. MW
() South Lobby, Ninth Floor Washington, D.C. 20036-5891 HeritageRegorggggggporation
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1 2 l APPEARANCES: (Cont'inued) t On behalf of the Intarvenors:
RICHARD J. ZANNLEUTER, ESQ.
Deputy Special Counsel to the Governor ,
Executive Chamber, The Capitol, Room 229 Albany, New York 12224 I On behalf of the Nuclear Reaulatory Commiamient f I
MITZI A. YOUNG, ESQ. l EDWIN REIS, ESQ. ,
NRC Staff Counsel ;
Washington, D.C. 20555 Qn__ behalf of the Federal Emeroency Management Auenev l
WII.LIAM n. CUMMING, ESQ. 1 I
500 C Street Washington, D.C. 20472 O
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3 1 PROCEEDINGS 2 JUDGE KOHL: Good mornir g.
3 We're hearing the appe.a of Long Island Lighting 4 Company from the February 1st, 1988, initial decision of the 5 Licensing Board, in connection with an emergency exercise 6 conducted in 1986 at,the Shoreham Nuclear Facility.
7 I'd like counsel to identify themselves for the 8 record right now, and we'll begin with counsel for LILCO.
9 MS. McCLESKEY: My name is Kathy McCloskey from 10 Hunton and Williams. With me is Donald Irwin.
11 JUDGE KOHL: Thank you.
12 Ms. McCleskey, do you plan to reserve any time for 13 rebuttal?
14 MS. McCLESKEY: Yes, ma'am. Seven minutes.
15 JUDGE KOHL: Counsel for the staff?
16 MS. YOUNG: Good morning.
17 My name is Mitzi Young. I represent the NRC staff.
18 Seated at counsel table with me is Mr. Edwin Reis, and I am 19 not reserving time for rebuttal.
20 JUDGE KOHL: None?
21 Counsel for the Covernment?
22 MR. MILLER: My namo is Michael S. Miller. I'm 23 with the firm of Kirkpatrick and Lockhart. With me is Susan 1
24 M. Casey and P. Matthew Sutko at the end of the table. We
( ) , 25 represent Suffolk County, New York.
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4 1 MR. ZAHNLEUTER: My name is Richard Zahnleuter, p) 2 and I represent the Governor and the State of New York, and v
3 I will not be presenting, but Mr. Miller will be presenting 4 argument on behalf of New York State.
5 JUDGE KOHL: Thank you.
6 Ms. McCloskey?
7 MS. McCLESKEY: Members of the Board, events are 8 overtaking us. We have a record on an exercise that we're 9 discussing today that's two and a half years old. We have 10 two revisions since that exercise to the LILCO plan. We hav6 11 a second oxorciso having been held on June 6th through 8th 12 of this year.
13 FEMA last week issued an exercise report on the 14 '89 exercise that found that there were no deficiencies, a 15 RAC review of the Revision 10 of thn plan and a letter 16 findiag reasonable assurance based upon these two reviews.
17 The staff has requested from the Licensing Board a 18 schedule for the 1988 possible exercise litigation, and the 13 Intervenors yesterday filed a paper challenging the 03 20 Licensing Board's jurisdiction and suggestin st possible 21 relitigation of many of the issues that are pending on 22 appeal before this Appeal Board now.
. 23 JUDGE KOHL: Well, then, Ms. McCleskey, why are we 24 here? Is it still LILCO's position then that we sheuld
() 25 decide the issues raised in your brief?
- Heritage Reprting Corporation (202) 628-4888
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5 f 1 MS. McCLESKEY ' Ye s , ma' am, it is.
2 LILCO bolieves thct it is critical that this 3 Appeal Board provide guidance on what fundamental flaw means 1
4 and provide it promptly.
5 The parties, all the parties and the Licensing 6 Board need thic Board's guidance on how one applies the 7 Commission's formulation in CLI 8611 and how that process 8 can be accomplished within the rubric of an expedited 9 proceeding. l 10 JUDGE ROSENTHAL: Well, when you say that we 11 should consider the question as to what a fundamental flaw 12 means, do we have to at the same time go down the list of 13 fundamental flaws found by the Licensing Board and determine
( 14 whether in fact they are or are not fundamental flaws?
15 Is it enough for us, in your view, simply to 16 provide the parties with a definition of fundamental flaws?
17 MS. McCLESKEY: I don't believe that our 18 definition can be given without looking at the facts of the 19 '86 exerciso and the determinations that the Licensing Board 20 made about whether those facts showed fundamental flaws.
21 Part of the reason that you have to get into the 22 facts is not because LILCO is challenging the factual 23 determinations, because we're not. There's only one disputed 24 fact in the whole case and that is about whether Dr. Brill's
() 25 statements regarding what protective actions should be taken Heritage gg ration
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1 were corrected or not.
2 That is the only disputed fact. But the way the 3 Licensing Board set up its decision, they didn't articulate t
4 a fundamental flaw standard test, and then they applied it 5 irregularly to a variety of facts, and the result is that ;
6 you have to look at what they found was a fundamental flaw.
7 I think that we've got to have a decision on 8 fundamental flaw and on the scope of the exercise in order 9 to reasonably go forward with the 1988 litigation, if there !
10 is any.
11 JUDGE ROSENTHAL: If we set forth standards with ;
12 some degree of precision, I don't understand why it will be 13 necessary to consider whether each individual fundamental ,
( 14 flaw as found by the Licensing Board was in fact a 15 fundamental flaw. !
16 If we set forth the standard, it seems to me that [
17 that can be applied to any litigation involving the June i i
18 1988 exercise. It doesn't seem to be you're going to be l l
19 helped very much by our application of the st ..J.;;d to each I
20 of these alleged flaws in connection with the 1986 exercise. !
l I 21 Tell me why I'm wrong. l 22 MS. McCLESKEY: I believe you're wrong because the i 23 problem with the fundamental flaw is one of degree of the l l
24 activity, and you have got to look at the activity to C
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() 25 determine whether you think it's a material licensing issue, Heritage g ration
7 1 whether the exercise revealed a problem in the plan.
2 JUDGE KOHL: What if we were to amplify our 3 definition by way of example?
4 MS. McCLESKEY: That would certainly be helpful 5 and don't get me wrong. If the Appeal Board -- we need 6 guidance and any guidance would be better than no guidance, 7 and if the guidance is a legal standard, you know, so be it.
8 But the other problem that I would have, though, i 9 with not looking at all at what the Licensing Board did is l 10 that we took the 1986 exercise and we've been litigating it 11 for basically two and a half years, and we think that the 12 Licensing Board was wrong on some of their determinations, 1
13 and we'd like the Appeal Board to review those
( 14 determinations and tell us whether they were right or wrong.
15 JUDGE JOHNSON: You're asking us for a standard.
16 Can you hear me?
l 17 MS. McCLESKEY: Yes, sir.
I I
18 JUDGE JOHNSON: It seems to me the Intervonors 19 have claimed that the Licensing Board did in fact invoke a l 20 standard and they, the Intervenors, think it was the correct i
21 standard, and that standard was that any deficiency which I
i 22 indicated that there was no reasonable assurance that 23 protective measures could be taken equates to a fundamental l
l 24 flaw.
25 Are you -- I assume that it is your opinion that
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1 this is not a correct standard, and if that is your opinion, 2 can you explain to me why it is not?
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3 MS. McCLESKEY: I wouldn't characterize the 4 quotation as an incorrect standard. I mean, it's the same 5 words that are in CLI 8611.
6 My problem with the repetition of those words is 7 that it doesn't really help us advance the ball on whether 8 the activities on the day of the exercise revealed problems 9 in the plan.
10 I also don't think that the Licensing Board took 11 even CLI 8611 language and properly applied it, and to 12 understand what the CLI 8611 language means, you have to go 13 back to Union of Concerned Scientists. You have to go back 14 to pre-Union of Concerned Scientists, treatment by che NRC 15 of exercises, and then consider what the Commission did 16 after Union of Concerned Scientists, and the fact of the 17 matter is that the exercise was considered the very final j 18 last limited restricted step, and CLI 8611 uses the word t
19 "restricted" in discussing how issues should be raised, on 20 whether an emergency plan is flawed or not.
21 And in this case, we have a claseic example of the 22 kind of extensive review on emergency planning that's 23 already gone forward.
24 The result with the Licensing Board was that they
() 25 didn't limit the scope. They didn't focus the issues. They Heritage g r:ation
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9 1 admitted a 104 pages of contentions and then they went all 2 over the map in trying to take every little piece of 3 minutia. There were 1100 people at the exercise in 1986.
4 There was a lot of activity going on, and they focused on 5 almost every single action.
6 That is not appropriate, and I don't know whether 7 it's because the Licensing Board merely misapplied the 1
8 standard that was articulated or whether we need a more 9 detailed articulation of the standard.
, 10 LILCO tried to articulats a more detailed test in 11 its briefs, and we stand by that tast, and we believe that 12 you have to ask for any particular activity; whether the i
13 public health and safety would have been affected, whether
) 14 the activity shows a pervasive nystemic flaw in the plan 15 Itself as revealed by the exercise events, and whether or 16 not you can easily correct the problem which sheds light l ,' really on the second part of the test.
18 JUDGE KOHL: Well, the Licensing Board agreed with 19 two of the three prongs of your test, didn't it? So, we're 20 really only talking about whether or not corrective action 21 should be taken into account, is that correct?
22 MS. McCLESKEY: I don't think so.
23 The Licensing Board spent a few pages talking 24 about the LILCO test, but you've got to look at what the
() 25 Licensing Board did with whatever test it thought it was Heritage g ggg ration
10 1 articulating.
w 2 JUDGE KOHL: So, your point is that while the (j
i 3 Licensing Board said at the outset of its opinion that it 4 was accepting two of your three criteria, in fact, when it 5 applied those criteria to the alleged flaws in the exercise 6 or in the plan, the Board did not stick to what it initially [
7 had said it was going to do?
8 MS. McCLESKEY: I'm not sure.
9 The Licensing Board's discussion of its test for 10 fundamental flaw is, in my view, less than illuminating, and 11 I think when you look at how they went about applying the 12 facts to what they articulated that they thought their test 13 was, which basically was just to repeat the CLI 8611 14 language, note that LILCO has put forward this three-pronged 15 test of its own, that really in its -- in their view, the 16 first part of it is just repeating what CLI L611 says and 17 the second part expands upon it a bit based on UCS.
18 But -- and then, of course, they rejected the 19 easily-correctable piece of it, but I don't think that if 20 you look at what the -- at the key activities that the 21 Licensing Board focused on, what they really focused on was 22 individual implementation of the plan on the day of the 23 exercise, and they came out at the end with that's a 24 funoamental flaw, and we think that's wrong. They got it
() 25 wrong.
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11 1 JUDGE KOHL: What do you think the purpose of an 2 exercise is vis-a-vis licensing?
3 MS. McCLESKEY: Vis-a-vis licensing?
4 JUDGE KOHL: Yes.
5 MS. McCLESKEY: I think that the purpose of the 6 exercise is to allow one finni look at the emergency plan 7 and to allow a reasonable assurance finding to be made that t
8 the plan is implementable, and I guess the best way that I 9 can discuss that is to give you an example of what I think a 10 fundamental flaw might be, 11 If you had the plan in place, it's already been 12 reviewed by FEMA, and litigated or not before the NRC 13 against all the planning standards and NUREG 5064, and all j 14 the pieces are there, the paper pieces are there, and you go 15 to the exercise and consistently they cannot get EBS 16 messages out in fifteen minutes, I would want the i 17 organization to go back to the plan and say, is there !
18 something about the way that we're doing this that keeps us 19 from getting the EBS messages out in fifteen minutes.
i 20 And the fact that they can't meets my test because 21 if you can't tell the public that there's an emergency, 22 you've got a public health and safety impact. No question 23 about it. 1 l
24 If they're doing it consistently, it's a pervasive
() 25 systemic flaw, and it's revealed on the day of the exercise Heritage Regor gg ggporation r
12 1 because you can read the plan all you like about how they're 2 going co do it in fifteen minutes, but until they actually 3 try it and see that it doesn't work, you don't know if it !
4 works or not.
5 JUDGE ROSENTHAL: Supposing it's readily 6 correctable to use the language I think that LILCO set forth 7 as a third part of its test? Now, the readily correctable 8 is not a fundamental flaw in LILCO's view?
9 MS. McCLESKEY Yeah. The readily correctable l
L 10 piece, as far as I'm concerned, goes to shedding light on 11 the pervasive systemic, and I think putting a new copying q
12 machine in is an example of readily correctable.
13 If you're not getting your E38 messages out in 14 fifteen minutes, I would say it's unlikely that it's because i
15 of a copying machine. f 16 JUDGE KOHL: Well, is any pervasive problem 17 readily correctable then? !
f 18 MS. McCLESKEY: Any pervasive problem readily l 19 correctable?
20 JUDGF. KOHL: Yes. You said that the readily l l
21 correctable criterion really is an outgrowth of the second :
22 plan, and if I understand you correctly, I think what you're i
23 saying is that if it truly is pervasive, then a forciari is [
24 not readily correctable.
25 MS. McCLESKEY: No. You know, the readily Meritage p ration !
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13 1 correctable piece, to me, is one way of trying to see 2 whether it's a pervasive systemic flaw.
3 If you go on the day of the exercise and the 4 copying machines don't work and you know that you can't fix 5 them or get new copying machines, that's not a pervasive 6 flaw in the emergency plan.
7 The emergency plan piece that's relevant is they 8 provide copying machines. That's not going to change.
9 JUDGE KOHL: I thought the Licensing Board did 10 say, though, that there was no single action or single 11 problem, whatever you want to call it, that led it to its 12 conclusion that there was a fundamental flaw.
I 13 Rather, it did look at the totality and in the l
( 14 Licensing Board's judgment, there were pervasive problems in 15 the area of communications overall. I 16 HS. McCLESKEY: Right.
I 17 Well, I think you have to -- in that regard, you i 18 have to look at the activities that they tied together. f 19 In communications, for example, the fact that that [
r 20 poor evacuation route coordinator didn't pass the message 21 out in a timely fashion is connected to the LERO [
22 spokesperson's performance during aews releases. I mean, I
23 press briefings on three questions out of over the hundred ;
24 that she was asked. 3 l
25 Now, in a gross sense, those are both
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14 1 communications problems. The impediment fellow didn't
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V 2 communicate, and the LERO spokesperson miss' poke a couple of 3 times. But I do not think that you can take either of those 4 activities singly or put them together and say, all right, 5 that shows a pervasive communications problem in the plan 6 itself.
7 JUDGE JOHNSON: What about --
8 MS. McCLESKEY: And on top of that -- I'm sorry?
9 JUDGE JOHNSON: What about the fact ihat the plan 10 does not permit the lateral communication amor./ the field ,
11 workers?
12 MS. McCLESKEY: In that regard, there's no 13 exercise activity that highlighted that as a problem. That n
(_) 14 is a clear example, in my vi2w, of the Licensing Board going 15 back and revisiting a planning issue and, lo and behold, 16 we're told that they were never all that enthusiastic about 17 the communications scheme that they approved three or four 18 years ago now.
19 But there's nothing in the exercise that revealed 20 anything about the plan regarding lateral communications, 21 and the impediment problem and the EOC problems didn't 22 involve lateral communications with field workers or anybody 23 else.
24 JUDGE JOHNSON: I have a question with respect to
() 25 your definition or, excuse me, your example of a fundamental Heritage ReMrting Corporation (202) 628-4888
15 1 flaw.
2 2 Did the fact that the large majority of the 3 traffi guides who were supposed to be on station in one 4 hour4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> were unable or at least in this exercise were not on 5 station in one hour, it would seem to me tl.at your example 6 of a fundamental flaw would indicate that there was a 7 fundamental flaw with respect to traffic guides and the time 8 they got on their stations.
9 Why isn't that a fundamental flaw? You've argued 10 that it isn't in your brief.
11 MS. McCLESKEY: Right.
12 JUDGE JOHNSON: Be' your example seems to tell me 13 that it is.
( 14 MS. McCLESKEY: It's not a fundamental flaw 15 because if you ask the first question of my test, would the 16 public health and safety have been affected, the answer is 17 no, and LILCO put forward arguments --
18 JUDGE JOHNSON: Aren't you changing the rules in 19 the middle of your definition? The plan says they're going 20 to be there in an hour. Presumably, there is a public health 21 and safety implication to that provision in the plan.
22 Now, in the exercise, you demonstrate, at least in 23 February of 1986, that they can't make it in one hour. Now, 24 don't change the rules and say, yeah, well, that's not a
() 25 public health and safety problems. I don't think that's Beritage p ration
I 16 1 quite fair.
l 2 Why isn't the fact that they didn't make it in one 3 hour3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> a fundamental flaw?
4 MS. McCLESKEY: Let me first say that I don't 5 believe 2 was changing the rules, and, second, it certainly 6 would have been preferable if everybody had made it within 7 one hour.
8 Now, Patchogue did. Port Jeff and River Head had 9 problems.
f 10 Hy view is that you have to look at given the fact 11 that they had problems and they didn't meet the one hour, 12 that you have to look in terms of is this the material 13 licensing issue. Is this something that troubles me enough 14 that I would not give a reasonable assurance finding?
15 And to do that, the first question I ask is, well, i
!? what impact would it have had on public health and safety?
i 17 And the answer is, the answer that LILCO's witnesses gave, 18 was it may have extended the evacuation time of a controlled 3
19 evacuation by nineteen minutes.
] 20 And in my view, that is not an impact on public 21 health and safety.
22 Now, do you go back and try to do better? Of 23 course you do. Do you practice it some more? Do you make 24 sure that next time that they make it? Of course you try to 25 do that.
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1 But do you find that the plan is flawed because i 2 one facility followed it and made it and the other two 3 didn't that day? No.
4 JUDGE JOHNSON: Don't you also want to look at why 5 the other two didn't make it? In other words, if your plan 6 says one hour and you go back and'look at the two that 7 didn't make it and you do look at the routes these people 8 have to take, where you have to -- where they go to get 9 their instructions, where they have to go and you do some 10 calculations and you come out that it's unreasonable to 11 expect these people to be in place by one hour, then doesn't 12 that rise to a fundamental flaw?
13 MS. McCLESKEY: All right. Well, now you've given
( 14 me an additional fact which is that you go back and you look 15 at what they did and you decide it's unreasonable.
16 First, I wouldn't have determined that it was 17 unreasonable because Patchogue made it. So, I would have 18 continued to --
19 JUDGE JOHNSON: You're talking in a little bit 20 navel oranges and some kind of other oranges.
21 Patchogue, the people there might physically be 22 able to do it, whereas in River Head and the other one, 23 maybe physically they can't do it in one hour.
24 I mean, so, conceivably, the fact that one
() 25 organization makes it and the other two don't still allows Heritage g ration
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18 1 for a fundamental flaw with respect to the other two.
2 MS. McCLESKEY: Well, you only have a fundamental 3 flaw if you have to go back and significantly change the 4 plan because there's a pervasive systemic problem with how 5 you're getting the people out, and I don't think that there :
j 6 is.
7 There's nothing to indicate that that was not }
L' 8 something other than a problem the day of the exercise.
i 9 JUDGE JOHNSON: All right. Well, are you telling r 10 me now that you have gone back and looked at the two regions 11 that didn't make it and you're saying that there's a day of .
t 12 the exercise problem and it is physically possible for those 13 people to get there? ;
14 MS. McCLESKEY: They made it in the '88 exercise.
15 JUDGE JOHNSON: Okay. I guess I'm not sure ,
I 16 whether that's a satisfactory answer because I'm really i 17 looking at examples of what would be -- what would i
18 constitute a fundamental flaw, and you gave an example of i
?
19 things that didn't work, and I'm saying that an apparent j i i 20 thing that didn't work in the '86 exercise was that people i
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21 weren't -- as a group, were unable to meet the time [
I 22 requirements of the plan. [
l 23 My question is, that certainly might be indicative 1 i t
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24 of a fundamental flaw in the plan, would it not?
() 25 MS. McCLESKEY: It might be, and I guess, Dr.
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i 19 ;
1 Johnson, we're focusing on different questions, and my first 2 question that I asked is, all right, we've got a problem. !
O 3 Two of the three facilities didn't anke it. What was the 4 public health and nafety impact. l i
5 Because I'm at the end of this process, and I've 6 looked at this emergency plan ad nauseam, and I want to know i 7 if there are any fundamental defects. )
L 8 Is this a fundamental defect that would preclude j 9 the issuance of a license? And because it would have ;
i y 10 affected the controlled evacuation by only nineteen minutes, (
i l 11 I come out no, it wouldn't have.
4 ,
I 12 JUDGE ROSENTHAL: You would come out that it's a 13 no, never mind, that you don't even have to worry about
( 14 correcting it at the next exercise if it has no health and i e 15 safety indications. Is that what you're telling us? l l
l 16 MS. McCLESKEY: If you're asking me do I think it f l
17 was properly classified as a deficiency, I do not think it .
T was properly classified as a deficiency. I 18 I
19 JUDGE ROSENTHAL: And that's because you as a i
l 20 lawyer have reached a conclusion that it has no health and ;
21 safety significance, and you keep talking about your own f l
22 conclusions. l l
i
- J Apparently, if it was rated as a deficiency, l 24 somebody else thought it did have a health and safety i
implication or it wouldn't have been listed as a deficiency,
(} 25 I
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20 1 would it?
2 HS. McCLESKEY: Well, FEMA obviously rated it as a 3 deficiency.
4 JUDGE ROSENTHAL: Okay. So, FEHA thinks it has 5 health and safety implications, and you, the lawyer for 6 LILCO, think it doesn't.
7 Now, where do we come out?
8 HS. McCLESKEY: I'm not sure that I'm advocating 9 me the lawyer for LILCO thinking that it doesn't --
10 JUDGE ROSENTHAL: That's what I'm hearing. Now, l
11 you say nineteen minutes has no health and safety i 12 significance and, therefore, I think your response to Dr.
13 Johnson was that this is not a fundamental flaw for that
() 14 reason, and I'm asking you whether FEMA saw it differently 15 and, if so, why should we not defer to the FEMA view as to 16 whether it has possible health and safety significance.
17 MS. McCLESKEY: Well, FEMA's deficiency definition 18 is very similar to the CLI 8611 definition, and I think your 19 answer goes to the relationship between FEMA deficiency and 20 the definition of fundamental flaw in CLI 8611.
21 And the fact of the matter is that the FEMA 22 deficiency standard is a rebuttal presumption. We put on 23 testimony that the Licensing Board -- that rebutted the FEMA 24 deficiency.
(} 25 We said, all right, two of the three facilities Heritage g g g p ration
21 1 didn't make it, but let's look at what the consequences of 2 that would have been, and the consequences would have been 3 the nineteen rainutes.
4 Now, we also, at the Board's request, put in 5 information that showed that the dose population -- the 6 population to the dose, -- the dose to the population would 7 have been the same, but the Board rejected that evidence, 8 but the fact is that LILCO rebutted the FEMA deficiency 9 presumption on the traffic control point issue.
10 JUDGE JOHNSON: Why don't you simply change the 11 plan, which is, therefore, easily correctable, to say these 12 folks should only have to be there in an hour and a half?
13 In other words, if the one hour time period has no
( 14 health and safety implications, then why is it in the plan?
15 How, I must -- what you just told me blows my assumption out 16 of the water, which is -- that's all right because I'm a 17 Judge.
18 But if the facts were that the traffic guides 19 could not get on station until an hour and a half or two 20 hours, but there was no health and safety consequences as a 21 result of that, then why have the one hour provision in the 22 plan?
23 I mean, if it represents the potential for a 24 deficiency every time you try it o ut, why does the plan
() 25 have unmeetable constraints in P. which have no -- which, meritage g g s *{ p ration
22 1 according to your testimony, have no health and safety 2 consequences at all?
3 MS. McCLESKEY: Well, now you're at the crossroads 4 between reasonable assurance and perfect planning, and I 5 you're right. Reasonable --
6 JUDGE JOHHSON: Is there an overturned truck at 7 that crossroads?
8 HS. McCLESKEY: No, sir. There are no overturned ;
9 trucks in any of my hypotheticals. l l
10 But the fact is that it may be that we could l 11 change the plan to an hour and a half for the times that the l
12 traffic guides had to be out there and that we could still !
l 13 show reasonable assurance, but why throw up your hands when [
( 14 one facility makes it and two don't, and change the time 15 limitation when you can try to meet it.
16 I mean, the planning process, you know, there's l
17 this process of the NRC review and all of the litigation and 18 all of that, and then there are the emergency planners who f L
19 sat down and figured out how do we want to go about this !
20 response.
23 And what they came up with was this one hour time i l
i 1
22 that they ideally would like to meet, and I think you keep l 23 trying to meet that ideal, but you don't deny a license 24 issuance because you don't meet it if there's no public l
() 25 health and safety impact.
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23 1 1 So, I would have a problem with saying, all right, l l
2 let's just change the plan to an hour and a half.
O 3 JUDGE ROSENTHAL: I would like to hear you for at f
i 4 least briefly on the res judicata question because it seems l I
5 to me offhand, you can correct me if I'm wrong, that when ,
i 6 the plan is being litigated itself, it's being litigated [
F 7 essentially in the abstract.
8 We've got a piece of paper or several pieces of i 9 paper in which the plan is set forth, and you're passing 10 judgment upon whether, looked at abstractly, the plan is i 11 satisfactory. When you get around to the exercise, the 12 proof, as the old saying goes, is in the pudding, and I j i
l 13 don't understand why, if an exercise reflected a significant l 14 flaw in the plan, a determination that might ha*e been made ,
l 15 earlier could serve to preclude a finding that that flaw j l 16 existed and had to be dealt with, r
- I l
17 Why am I wrong?
18 HS. McCLESKEY: In the abstract, I don't believe :
l 19 you are wrong. But in this case, that didn't happen, f 20 There were two areas where arguably the res l:
21 judicata issue comes up. One is in this lateral 22 communications issue, end the other is in training. }
- 23 How, as to the lateral communications, it's clear [
< i 24 from the record that nothing that happened the day of the ;
i 25 exercise impacted or shed any light whatsoever on whether Meritageg gg g p ration !
I i
24 1 the lateral communications was needed in the LILCO plant.
2 JUDGE ROSENTHAL: Well, then you're just saying 3 that there wasn't a flaw. That doesn't go to the question as !
4 to whether there's a res judicata flaw or not, does it?
5 I mean, what you're saying is t'At this record of 6 the exercise did not reflect that there was a flaw insofar l t
7 as tne lateral communications me.tter was concerned.
8 that may be right, --
j 9 HS. McCLESKEY: Right. ,
10 JUDGE E0SENTRAL: -- but that doesn't, seems to t 11 me , deal with the basic questiers as tc whether you can't 12 even look at it because of the application of res judicata 13 to earlier Licensing Board daterminations.
) 14 MS. McCLESKEY: Well, and I think that point goes 15 to the whole nature of what we're eupposed to be about l 16 looking at these exercises. ,
i 17 You do not go back and revisit every decision that 18 has been made about the plan. You focun on what happened 19 the day of the exercise. That's clearly what the NRC dic 20 before Union of Concerned Scientista. It's what it argued in 21 Union of Concerned Scientists, and it's what CLI 8611 22 articulated.
23 And in that regard, a musing about whether lateral 24 communications in thinking it over for a couple of years may
() 25 in fact be a better way t. go in the plan is totally Heritage gg ration
i 25 1 inappropriate in the context of an exercise litigation.
r~g 2 Ms. Kohl, I see my time is up.
(_)
3 Thank you very much.
4 JUDGE KOHL: Thank you.
5 Ms. Young?
6 MS. YOUNG: Good morning again, Judge Kohl and 7 members of the Board.
8 The issue the Board confronts today is that 9 elusive standard, the fundamental flaw.
10 The staff supports LILCO's appeal and believes 11 that the Board's erroneous findings of flaws resulted from a 12 combination of factors. The most important was the Board's 13 application of improper definition of a fundamental flaw.
t ( 14 The staff realizes that there is a change in its 15 position as a result of the issuance of the realism rule,
[
16 and the guidance provided in 8613 regarding the proper 17 definition of a fundamental flaw.
f l
18 As a result of the issuance of the realism rule, l
19 the staff believes this Appeal Board should apply 8613 to i
! 20 t'w. Licensing Board's findings of flaw and find that the 21 exorcise did not reveal any flaws.
22 JUDGE KOHL: I don't quite understand, Ms. Young, l
23 why the issuance of the rule last November, which basically 24 codified what was in the CLI 8613 decision, why does tho
() 25 issuance of the rule impact so strongly on the staff's HeritageRe$frtinECorporation (20 628 4888
26 1 position?
2 I mean, there was nothing in the rule that we r3 NJ 3 hadn't all heard before, very little in the rule that wasn't 4 already stated in the Commission's decision, correct?
5 MS. YOUNG: To the extent that there are many 6 words that appeared in the Commission's decision in 8613 7 that latsr appeared in the rule, you are correct.
8 But it's the realism rule that tells us that the .
9 important measure of a passing grade for an emergency plan 10 under 5047 (a) is that the plan provide adequate protective 11 measures, and it also indicates --
12 JUDGE KOHL: Wasn't that just another way of 13 saying reasonable assurance, which is the bottom line
() 14 standard?
15 MS. YOUNG: Well, as the staff would say, whether 16 you say root question is adequacy of a plan, whether you say 17 fundamental emergency planning standard, which the 18 Commission did in 8613, or whether you say fundamental flaw, 19 these things are actually the same thing.
20 JUDGE KOHL: Well, I would agree, and that's why I 21 don't understand why the staff suddenly then shifts its 22 position from what was the issuance of the rule last 23 November. It's very confusing.
24 MS. YOUNG: The staff lacked insight as to the
(} 25 nexus between the finding of reasonable assurance in 5047 (a)
Heritage Reporting Corporation (202) 628-4888
l 27 !
1 and the Commission's discussion of adequate protective
- 2 measures in 8613 and in the realism rule.
k_')S 3 In cther words, the main question for any 4 emergency plan is whether it provides adequate protection 5 measures. The Commission emphasizes this in the realism 6 rule by stating that each plan shall be evaluated on a case ,
7 by case basis for adequacy. It shall be evaluated on its own 8 merits. The Commission's rules do not require any preset 9 minimum dose savings, any preset minimum evacuation time, 10 and it also tells us that a finding of adequacy for one plan 11 is comparable to a finding of adequacy for another plan.
12 So, the staff, after reading the realism rule, 13 believed it had the duty to inform this Board of current
( 14 Commission guidance pertinent to the legal standards to be 15 applied regarding fundamental flaws, and'that it, you know, 16 could not hide this relationship from the Board, even though 17 it was late to receive it.
18 So, the important question in analyzing the 19 fundamental flaw again rests with whether the plan can 20 provide adequate protective measures. From the realism rule, 21 the staff understands that in the statement of 22 consideration, r:ch plan is to be evaluated -- a utility 23 plan is to be evaluated under the same standards that apply 24 to a state or local plan.
() 25 The Commission indicates that there are sixteen Heritage ReMrting Corporation (202) 628-4888
V j 28 1 planning standards, but, again, allowances are to be made 2 for the non-participation of surrounding governments and for
<^)
NJ 3 the licensee's compensating measures.
4 So, in reading that realism rule, the staff 5 focused on what did the Commission mean by adequate 6 protective measures. That addresses the fundamental flaw 7 standard.
8 JUDGE KOHL: Is there any indication in the 9 Licensing Board's decision that it applied a double standard 10 that would not be consistent with what the rule in CLI 8613 11 provides?
12 MS. YOUNG: I'm not sure I understand what you 13 mean by double standard.
( 14 JUDGE KOHL: Well, I guess I infer from what 15 you're saying that, you know, the Commission has said that 16 the emergency plan and exercise performance should be judged 17 on the same basis for a utility's devised plan as it would 18 be for a state and local government devised plan. Right?
19 So, I don't understand, I don't see in the 20 Licensing Board's opinion that they violated that direction.
21 MS. YOUNG: No, it wouldn't be that they had 22 violated that direction, but the problem was that they --
23 even though they enunciated a fundamental flaw standard that 24 closely tracked that in 8611, they did not go as far as
() 25 addressing those factors regarding adequacy that the staff Heritage ReMrting Corporation (202) 628-4888
0 29 1 believes can be found in 8613.
2 To that extent, the Commission was discussing the 7s 0 3 adequacy of a best efforts response. It applies the adequacy 4 of a governmental response. When we look at the realism rule 5 and we understand that the same questions of adequacy are 6 pertinent to whether it's a utility implemented plan or a 7 state and local plan, the staff believes that you can find 8 in 8613 more guidancs regarding what constitutes adequate 9 protective measures.
10 JUDGE KOHL: Did the staff specifically argue tl.
11 the Licensing Board that its definition of fundamental flaws 12 should take into account the Commission's decision in CLI 13 86137
() 14 MS. YOUNG: No, the staff did not.
15 Again, the staff --
l 16 JUDGE KOHL: Put that decision was available at
- 7
. that time?
18 MS. YOUNG: It was available, but the staff lacked 19 insight into the full implications or the full relevancy of 20 8613.
21 JUDGE KOHL: But you can't very well criticize the 22 Licensing Board's decision for not specifically paying lip 23 service to the CLI 8613 decision when none of the parties 24 argued that to the Board, can you?
25 MS. YOUNG: Not specifically because of the Heritage rem rting Corporation (202) 628-4888
7.
30 1 results of the parties' failure to argue it, but, again, the 2 staff insight is gained after reading the realism rule which 3 was promulgated in November, which preceded both the 4 decision on the scope of the exercise and the decision under 5 appeal in this argument.
S JUDGE COSENTHAL: How can you come up here and 7 attack a Licensing Board decision on grounds that you didn't 8 practice before the Lic3nsing Board?
9 Isn't it a fundtsental rule of appellate 10 procedure, so to spsak, that one who is attacking a decision 11 of the tribunal below must do so on grounde that were 12 presented in that tribunal?
13 MS. YOUNG: If you are referring to waiver, in a
() 14 sense, as a result of the staff's failure to raise it below, 15 --
16 JUDGE ROSENTHAL: Well, we normally do not hear 17 from appellants erguments that were not presented to the 18 lower tribunal and for good and sufficient reasons. It's 19 rather unfair, isn't it, to come up and tell us that the 20 Licensing Board was wrong for reasons that, whether it was 21 due to a lack of insight or whatever else, were not 22 presented to that Board?
23 Why should we consider anything that you are now 24 telling us or tolo us in your brief that weren't put before
{} 25 the Licensing Board?
Heritage Rep rting Corporation (202) 628-4888
31 1 MS. YOUNG: Well, I believe both Judge Rosenthe,1 es 2 and Judge Kohl has recognized in Doualas Point, AbAB-218, b 3 and in the . Limerick decision, ALAB-819, that it's important 4 that judicial decisions or administrative decisions, for 5 that matter, be rendered under the law in effect at the 6 time.
7 This was the reason that the staff felt it had the 8 duty to inform the Board of Commission guidance that was 9 pertinent --
10 JUDGE KOHL: But CLI 8613 was in aftect at the 11 time this case was being litigated.
12 MS. YOUNG: But the full implications of that 13 decision regarding giving guidance pertinent to the adequacy
() 14 of the protective measures under emergency plan was not 15 clear or was not even confirmed until after tne issuance of 16 tha realism rale and the discussion of the statement of 17 considerations in the realism rule.
1 18 JUDGE ROSENTHAL: When was the realism rule --
19 MS. YOUNG: It was published in November of '87 20 and became effective in December.
21 JUDGE ROSENTRAL: All right. That was November of 22 '87.
23 When was the Licensing Doard's decision that's now 24 under appeal?
() 25 MS. YOUNG: It was rendered in early February.
Heritage Re w rting Corporation (202) 628-4888
32 1 JUDGE ROSENTHAL: All right. What happened in that
^s 2 interval?
)
3 MS. YOUNG: In that interval, the staff lacked the 4 insight. That's basically all I can tell you.
6 JUDGE ROSENTRAL: Well, I understand this lacking 6 insight. I mean, the staff, I assume, was familiar with the 7 rule. The realism rule was not hidden under the proverbial 8 bushel basket, and was it the staff just didn't until after 9 February, did not focus on what it now is telling us was of 10 significance?
11 MS. YOUNG: That is correct. It was shortly before 12 we filed our brief that we realized the significance of 8613 13 to a finding of fundamental flaws, but at that time, we did
( 14 not have that realization or the position that I'm 15 presenting to you today substantially prior to when we filed 16 our brief.
17 JUDGE KOHL: Do you think the Commission's 1986 18 decision in the Shearon-Harris proceeding, that part of the 19 proceeding involving the exemption request, it talks about 20 fundamental flaw, do you think that opinion sheds any light 21 on what the Commission meant in the Shoreham opinion as to 22 what fundamental flaw is?
23 MS. YOUNG: If you're referring to CLI 8624?
24 JUDGE KOHL: Yes.
() 25 MS. YOUNG: Possibly? I think that one does Heritage gg p ration
33 1 explain to the parties in this proceeding that a finding of
(~g 2 reasonable assurance should be based in part on the U
3 implementability of a plan, but other than that, there's no 4 further guidance regarding what protective measures are 5 adequate.
6 JUDGE KOHL: So, you still think that the 1987 7 rule on realism adds more -- contributes more guidance in 8 defining fundamental flaw than the Commission's 9 pronouncements in both Shearon-Harris decision and the 10 .9horeham opinion?
11 MS. YOUNG: Yes, and I think -- I believe that the 12 statements of cor. sideration, even though the words again, 13 fundamental flaw, are not there, does say that the rule does
( 14 amplify and clarify the Commission's guidance in 8613, and 15 it states -- it reiterates the words from 8613, that the 16 root question is adequacy of the protective measures 17 provided under a plan.
18 JUDGE KOHL: It doesn't really go to the roalism 19 issues that are still being litigated before the Licensing 20 Board as opposed to what happened in the --
21 MS. YOUNG: No. Judge Kohl, I have to disagree.
22 Adequacy of protective measures does not depend on
> 23 whether they're taken by a state or local government or 24 whether they're taken by a utility.
l
(} 25 In each instance, to confront the fundamental flaw Heritage gg ration i
34 1 criterion, you have te determine whether the protective w 2 measures are adequate and through that, you're able to
{d 3 determine whether yoo have reasonable assurance under a 4 plan.
5 JUDGE ROSENTHAL: What is the Licensing Board 6 considering the realism issue addressing at this point?
7 Isn't that Board addressing whether, in point of fact, the 8 response that is presumed that the state and local 9 governments will make will be adequate, coupled with the 10 activities of the applicant's own organization? Isn't that 11 the question?
12 MS. YOUNG: Are you saying whether in the realism 13 proceeding, the --
( 14 JUDGE ROSENTHAL: Yes. As I understand it, there's 15 a Licensing Board that is now considering whether, in point 16 of fact, the presumed response of the state and local 17 governments, the presumption is that they'll make their best 18 effort, whether that will be efficacious. Isn't that what 19 the --
20 MS. YOUNG: Yes. There is a proceeding on that 21 issue.
22 JUDGE ROSENTHAL: All right. Now, why isn't that 23 tied to the exercise?
24 MS. YOUNG: I'm losing your question. Why isn't it
() 25 --
Heritage g g y ration
35 1 JUDGE ROSENTRAL: The exercise reflects the 2 response to the emergency of the LERO organization, does it I' ') 3 not?
4 MS. YOUNG: Yes, it does, and --
5 JUDGE ROSENTHAL: All right. Now, on top of that 6 response is going to be the response of the state and local 7 governments, the bodies that have the police powers, is that 8 not true?
9 MS. YOUNG: Because there's a presumption that the 10 state and local governments will use the utility plan.
11 JUDGE ROSENTHAL: They will respond and they'll 12 vso the utility plan.
13 Now, why isn't there a close inter-relationship
() 14 between the examination of this exercise and the questions 15 that are being addressed by the Licensing Board that is 16 looking at the efficacy of the presumed response from the 17 state and local government with the police powers?
18 MS. YOUNG: Why isn't there a close relationship 19 between the two?
20 JUDGE ROSENTHAL: Yes. Why don't they inter-21 relate?
22 MS. YOUNG: Well, I guess they are related to the 23 extent that the issue becomes the same, whether the 24 protective measures provided by the LILCO plan are adequate.
25 With respect to the exercise that was conducted in Heritage gg ration
4 36 '
1 February of '86, the actions of state and local officials l I
2 was simulated by FEMA controllers.
3 So, the exercise tests merely LILCO's ability to 4 provide information to those controllers and then to make 5 protective action decisions. These are the factors that are 6 important from 8613.
7 The Commission, in 8613, had separated legal 8 authority contentions and had there being litigated in the 9 OL3 proceeding, but, again, 8613 does give us an indication 10 of what protective measures are adequate, whether they are
} 11 instituted by a utility or a state and local government. ,
12 So, the issue is always the same. Whether the plan
{
j 13 can provide for adequate protective measures. Whether those
( 14 measures are taken by utility or by state and local 15 governments.
1 j 16 So, I believe there is a relationship between the 17 two, but the extent that the history of this proceeding has l
18 somewhat separated the two issues to first examine LILCO's f s
li 19 activities in one context and then look at the adequacy of !
i
, 20 best efforts responses in another proceeding, they have been 21 separated.
22 JUDGE ROSENTHAL: I ask that question because l 23 you've indicated that the issuance of the realism rule last 24 November has had a drastic effect upon the staff's approach. ,
1
() 25 The staff having now acquired this additional r
HeritageRggorgggggggporation
.-. _.-_ .-_______ - _-_ - __. _ - -. _ _ _ _ - -_ . __- .. - _ - , _ - . .- - a
37 1 insight --
gm 2 MS. YOUNG: Certainly.
\J 3 JUDGE ROSENTHAL: -- is why I was sort of 4 interested in --
5 MS. YOUNG: And the realism rule does, you Know, 6 specifically state that even though utility plans are tt be 7 evaluated along the same standards that are to be used to 8 evaluate state and local plans, due allowances are to be 9 made for non-participation of state and local governments, 10 and for the compensatory measures under the plan.
11 Again, the ultimate question is whether the plan 12 can provide for adequate protective measures, and when we 13 look at the Commission's discussion of adequate protective
( 14 measures, which was particularly focused on the efficacy of 15 best efforts responses, the staff has gleaned basically 16 three factors.
17 Whether the delays associated with the 18 deficiencies in exercise would impact the timely alert of i
19 the public. Whether delays would impact the ability to make 1
20 protective action decisions and recommendations, and whether 21 the delays would preclude the viability of evacuation or 22 other protective options.
23 If we look at these three things, we're talking 24 about the significance of the failure to meet one or more of
() 25 the planning standards in 5047 (b) .
Heritage gg ration
.m 38 1 JUDGE ROSENTHAL: In order to be a fundamental 2 flaw as the staff aees it, it would have to produce a delay CJ3 3 which would have one of those three effects?
4 MS. YOUNG: Certainly.
5 JUDGE ROSENTHAL: Is that right?
6 MS. YOUNG: In other words, you have to determine 7 the significance of the deficiency on the ability to take a 8 range of protective actions under the plan, and to that 9 extent, you're addressing the issue of whether protective 10 measures are adequate under the plan.
11 JUDGE KOHL: How do we decide if a certain period 12 of time delay is fundamental or not?
13 Ms. McCleskey said that a nineteen minutes' delay
( 14 was not significant.
15 Is an hour significant? Two hours? What do we do 16 to go about making that kind of judgment? What do we look 17 to?
18 MS. YOUNG: Well, I think you'd look at the -- you 19 begin with the findings in the partial initial decision 20 regarding -- we're talking about the staffing and traffic 21 control guides in this instance.
22 The plan provides for a staffing, critical traffic 23 control posts within one hour. The Licensing Board below 24 also found that these guides could be mobilized within
() 25 approximately three hours and that would be adequate.
Heritage g ration
39 1 So, the concern was to have critical traffic 2 control post staff within the hour. That did not occur on 3 the day of the exercise with respect to two of the staging 4 areas. But when you look at 8613 and determine the adequacy 5 of the protective measures and since this -- the traffic 6 guides are used to control evacuations, you have to 7 determine would that have precluded the viability of 8 evacuation under those circumstances.
9 Nineteen minutes, as the testimony below indicates ,
10 that would have further delayed evacuation, you make the 11 judgment as to whether that would have precluded evacuation.
12 It's clear that it did not.
13 JUDGE KOHL: But that's what I'm asking you, is
( 14 how do we make that judgment. What do we look to to -- is it 15 just strictly you bring in your experts and have them 16 testify and if more of them testify that nineteen minutes 17 isn't a problem, then nineteen minutes isn't a problem?
18 MS. YOUNG: Well, there was also testimony that 19 even if the traffic control guides were not at their posts, 20 that the evacuation would only be lengthened by an hour and 21 a half.
22 I think -- I can't recall which decision the 23 Licensing Board found that, but those things are acceptable.
24 The Commission has specifically stated in the statements of
() 25 considerations that no preset minimum evacuation time is Heritage g ration I
i
40 1 required. It has stated that each plan is to be evaluated 2 for adequacy without reference to the specific dose O'- 3 reductions provided in that plan.
4 So, to the extent that the hour was not met, the 5 plan could still be adequate.
6 JUDGE KOHL: That's true, but that takes us back 7 to Dr. Johnson's question earlier, though.
8 Why have a time specified in a plan if it can't be 9 met? I mean, presumably, that time, although it might not 10 be required under the NRC's regulations, it's in the plan 11 for some reason. That reason being that the individuals who 12 have to make protective action recommendations can do so 13 based on the planning basis set forth in the plan.
() 14 You know, why have that timing in there if it 15 doesn't serve some significant purpose and why shouldn't it 16 be strictly adhered to?
17 MS. YOUNG: I believe the timing in the plan is a 18 goal for a certain level of emergency preparedness.
19 JUDGE KOHL: And presumably those goals are set on 20 the liberal side at the outset, right?
21 MS. YOUNG: You mean on the optimistic end?
22 JUDGE KOHL: Yes.
4 23 MS. YOUNG: Yes, certainly, and that's a goal that 24 should try to be achieved, but the determination in terms of 25 fundamental flaw is not only whether the goals and the plans Heritage r gg ration
41 1 are met, but what effect did the failure on the day of the 2 exercise to meet those goals have on the ability to C~)
3 effectuate evacuation in that instance, and we've learned 4 from the testimony in the proceeding that it would not have 5 affected it very substantially.
6 JUDGE JOHNSON: Isn't the time dependence of 7 population dose directly a function of the particular 8 scenario that is being examined in the exercise and, 9 therefore, nineteen minutes in an exercise that envisions 10 one type of accident may not be harmful but nineteen minutes 11 in an exercise that envisions another failure scenario might 12 well be significant?
13 Would you not agree with me on that?
() 14 MS. YOUNG: I think I can agree with you, and to 15 the extent that the Licensing Board below -- I can't recall 16 whether it was in the partial initial decision or in this l 17 decision, recognized that even though it had approved 18 mobilization of traffic guides within one to three hours, so 19 to speak, that there may be some scenarios that were faster-20 breaking that even getting there in an hour would be too 21 late.
22 But the Board still found that that's adequate 23 because under en.ergency planning, you're taking a range of 24 protective actions. It may be a situation where sheltering 25 is more appropriate than evacuation, but, again, the goal in
(])
Heritage r ration
42 1 the plan, you are correct, was to try to get there in an 2 hour2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br />.
V 3 So, we have to look at the adequacy of the 4 protective measures. It is a esse by case evaluation, and 5 the Commission has also made clear that its emergency 6 planning regulations are flexible and utilities are not to 7 be held to the exact same standard they would be if there 8 was state and local participations.
9 The only finding that's important is to determine 10 whether the protective measures under the plan are adequate 11 and, therefore, provide reasonable assurance.
12 JUDGE KOHL: Ms. Young, your time has expired.
13 If you want to take another half a minute to sum
() 14 up, you may.
15 MS. YOUNG: Basically, the staff would urge that 16 this Board apply the guidance of 8613 regarding the adequacy 17 of the protective measures as its elucidation of the 10 fundamental flaw standard.
19 To that extent, the Board should apply to the 20 Licensing Board's findings of flaws the question of whether 21 the deficiencies during the exercise caused delays which 22 would have affected the timely alert of the public, which 23 would have affected the ability to ma's protective action 24 decisions and recommendations, including recommendations
(} 25 regarding recovery and re-entry, and would have precluded Heritage r ration
U 43 1 the viability of protective action options.
2 To that extent, the staff believes that if the w) 3 Board applies this standard to the Board's findings of flaws 4 below, that this Board will conclude that the exercise did 5 not reveal any fundamental flaws.
6 Thank you.
7 JUDGE KOHL: Thank you.
8 We'll take about a seven-minute recess.
9 (Recess.)
10 JUDGE KOHL Mr. Miller?
11 MR. MILLER: Thank you, members of the Board.
12 Briefly, to outline my remarks, I'm not going to 13 repeat matters addressed in the briefs because I think the 14 Board is amply familiar with the briefs. I may touch on some 15 of those points in response to questions, but I will not --
16 I will try not to repeat matters in the briefs.
l l 17 It's my opinion that governments have fully and
]
18 adequately responded to the arguments made by LILCO and by j 19 the staff since we were given the opportunity by this Board
! 20 to address the staff's brief, and I will have some comments 21 about LILCO's reply brief that we did not respond to, and I l
22 will make some remarks regarding the comments that have been 23 made here earlier today by counsel for LILCO and for the 24 staff.
25 I would like to perhaps begin by just reminding Heritage rggg ration
i 44 l
1 the Board that some years ago, litigants in this proceeding '
es- 2 stood before this Board or at least members of the Board 3 that were then sitting and argued the merits of the appeal 4 from the planning decision of the OL3 Board in the 1983 and 5 '84 litigation, and at that time, in most respects, LILCO 6 had prevailed on the facts and determinations made by the 7 Planning Board, and LILCO stood before this Board and LILCO 8 talked about due deference that must be given to the Board 9 below 10 LILCO talked about the extensive record that had 11 been developed below and how the Board had to take that 12 record into account, and LILCO reminded the Board of its 13 obligations as an appellate body.
() 14 Well, today, the tables are reversed. We have an 15 extensive record below. The record which the Board is i 16 familiar with numbered nearly 12,000 pages of pre-filed 17 testimony and a hearing transcript.
r 18 We had literally dozens of witnesses that 19 testified for the parties. We had hundreds of exhibits 20 offered to the Board, t i
21 JUDGE ROSEt1 THAL: lione of that goes, Mr. Miller, 22 does it, to the question as to whether the Board applied the 23 right standard? You could have had a record of a 100,000 >
24 pages and two million exhibits. If the Board applied the
(} 25 wrong standard to that realth of evidence, the Board's '
Heritapt Rgporg gg ggporation l
45 1 conclusions would not stand, would they?
2 MR. MILLER: I agree with you completely, Judge
( \
3 Rosenthal.
4 The Board here did not apply the wrong standard.
5 It's the Government's position that the Board applied 6 LILCO's very standard, LILCO's very definition. Their three-7 part definition of fundamental flaws.
8 We think the Board went further than it should 9 have in doing so, but, nonetheless, the Board applied that 10 standard, that restrictive test as we call it in our briefs, 11 in LILCO's favor and, nonetheless, found fundamental flaws 12 in numerous categories against LILCO.
13 I don't quite understand LILCO's complaint before
() 14 this Board. They say they need guidance about what a 15 fundamental flaw is.
16 JUDGE ROSENTHAL: Well, LILCO does not agree with 17 you that the Licensing Board applied its standard.
18 MR. MILLER: Well, if we look at the test that 19 LILCO asks the Board to apply, that a fault, a defect, to be 20 fundamental, must impact public health and safety, that that 21 defect must be pervasive, systemic throughout the plan, that 22 the defect must not be one readily correctable.
23 The Board specifically adopted the first two parts 24 of that standard, and we submit the Board also adopted a 25 third part of that standard, the easily correctable part of HeritageRggorggg gporation
46 1 that standard.
, 2 If you look at the fundamental flaws found by the
{} 3 Board, in every case, the Board concluded that changes had 4 to be made to LILCO's plan and changes have been made, and I 5 think, Judge Johnson, one of your remarks to Ms. McCloskey 6 was in the context of traffic guide mobilization. Why was 7 that not a fundamental flaw and Ms. McCloskey said --
8 pointed out to the Board that in the recent exercise, the 9 traffic guides were able to get to their posts within one 10 hour1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br />.
11 That's because LILCO has changed its plan since 12 the litigation below. LILCO has changed its plan by 13 requiring the traffic guides be pre-briefed, pre-equipped
() 14 and dispatched earlier, so that if they performed in this 15 recent exercise as Ms. McCleskey claims, that's a different 16 question than what was before the Board below.
17 JUDGE JOHNSON: But I have a question on a 18 statement you made a few paragraphs back. That is that the 19 Board did, indeed, follow the LILCO proposed standard, but 20 with respect to traffic guides, did not the Board explicitly 21 state that they were not considering public health and 22 safety when they were dealing with the issue of the 23 timeliness of traffic guides?
24 MR. MILLER: No, sir.
25 The Board does have, in one sentence, "Defenso Heritage gg g p ration
47 1 relied heavily by LILCO", where it states that it will not 1 1
2 consider the evidence offered by LILCO regarding health and
(') -
\J
~
3 safety impact.
4 The Board said that because the Board found that 5 the fundamental flaw demonstrated during the exercise, the 6 fact that two of the three staging areas completely failed 7 in getting its traffic guides to their post in time, and 8 even the Patchogue staging area, notwithstanding Ms.
9 McClerkey's comments to this Board, did not really pass, I 10 think, giving benefit to LILCO regarding the time frames and 11 what was demonstrated during the exercise. Something like 12 sixty-four percent of the traffic guides from the Patchogue 13 staging area reported to their posts within about one hour
( 14 on the day of the exercise.
15 But put that to one side. The Board, I think, 16 determined that given the array of evidence before it, given 17 the dismal performance by LILCO during the exercise, given 18 the fact that two of three staging areas clearly could not 19 oven begin to meet the one hour mobilization time frame set 20 forth in the plan and approved by the L1 censing Board, the 21 CL3 Licensing Board in the planning litigation, the Board 22 concluded it didn't need to see any further evidence about 23 the health and safety impact.
24 JUDGE JOHNSON: Well, you clearly read the 25 Licensing Board statement differently than I do because the
(])
Meritage g g g g p ration
~
48 1 way I read the statement on page 85 is the Board is saying 2 that health and safety is not a relevant issue in this 3 particular finding.
4 But that needn't deter us or detract us any 5 further.
6 Let me ask you another question. If this plan and 7 the exercise of February 1987 revealed many fundamental 8 flaws as the Licensing Board found, why did it take 12,000 9 pages to describe them?
10 I would think the fundamental flaw in something 11 like an emergency plan showing up in an exercise would be 12 something that was so obvious that it would only take ten 13 minutes to show it.
14 MR. MILLER: Well, your question, Judge Johnson, 15 may go to the litigious natures of lawyers. Maybe it goes to 16 the litigious nature --
17 JUDGE JOHNSON: Maybe it goes to the litigious 18 nature of fundamental flaw, but, I mean, it would seem to me 19 that a fundamental flaw is something that's going to jump 20 out and hit you over the head, and you shouldn't have to 21 take days and days and days of litigation to demonstrate 22 that something is a fundamental flaw.
23 MR. MILLER: Judge Johnson, all I can point out to 24 you is that likely it should not have taken as long as it
() 25 took to demonstrate the fundamental flaws that the Heritage ,
g ration
l i
49 i 1 Government demonstrated during the litigation.
2 The Board, you must remember, essentially followed 3 FEMA's findings. FEMA calls it a deficiency. The Licensing 4 Board calls it a fundamental flaw, but, essentially, the 5 Board followed the FEMA findings as to what had been noted 6 and observed as demonstrated deficiencies during the day of 7 the exercise, and the Board essentially went down the line 8 with FEMA on this.
9 The governments agreed with FEMA in FEMA's
- 10 analysis of the exercise. You also have to remember in the
)
- 11 context of your question, this was not a one-cided decision 12 in favor of the governments. There were many, many
) 13 contentions that were found against the governments. We did
() 14 not appeal those issues. LILCO brought this appeal of the 15 issues that they had lost.
I
- 16 But there were many matters that the Board 1
j 17 concluded were not fundamental flaws that were litigated and I
18 did taks time during the litigation.
l 19 JUDGE ROSENTHAL: Mr. Miller, you indicated awhile 1 20 back that, as you saw it, the Board adopted all three parts 21 of the LILCO proposed test. Did I understand you correctly 22 to state that?
23 MR. MILLER: Yes, sir.
24 JUDGE ROSENTHAL: All right. The third portion of
(} 25 that test, and I'm quoting, was "the alleged problem must l NeritageRggorgggggggporation 1
50 1 not be readily correctable by means of additional training,,
2 the purchase of new equipment or some other reliable and 3 verifiable method. Rather, it is a problem that is 4 susceptible to correction only through substantial 5 potentially far-reaching revision of the written emergency 6 plan."
7 Now, you're telling me that each of these 8 deficiencies would fail against that standard, is that 9 right? Every one of the fundamental flaws that the 10 Licensing Board found would come within the ambit of that 11 third test?
12 HR. MILLER: Yes, sir. That's my position, and I 13 would just point out, Judge Rosenthal, I think you're aware
() 14 of this, but it was Revision 6 of the LILCO plan that was 15 exercised, and we're now at Revision 10 with drafts of 16 Revision 11 coming out.
17 So, there have been substantial changes by LILCO 18 to its plan.
19 JUDGE ROSENTHAL: All right. But you're saying 20 that each one of these problems that was identified by the 21 Licensing Board and characterized as a fundamental flaw was 22 a problem that was susceptible to correction only through 23 substantial potentially far-reaching revision of the written 24 emergency plan?
25 MR. HILLER: I certainly would say that the Heritage g ration
51 1 problems identified as fundamental flaws are not easily 2 correctable through additional training, new equipment or
)
3 other such means.
4 JUDGE ROSENTHAL: Well, I read it. "Only through 5 substantial potentially far-reaching revision of the written 6 emergency plan." That was the LILCO proposed test which you 7 say the Licensing Board adopted.
8 Now, if you're accepting that, then I would have a 9 problem, of course, and that is if we find that one of these 10 fundamental flaws was not a problem susceptible to 11 correction "only through substantial potentially far-12 reaching revision of the written emergency plan", should we 13 then reverse the Licensing Board's determination that that (m)
._, 14 was a fundamental flaw?
15 MR. MILLER: No, and I want to make sure my 16 position is clear.
17 What I am saying is that the Licensing Board 18 followed LILCO's proposed for fundamental flaw. I'm also 19 saying that the Licensing Board went further than it should 20 have in doing so.
21 I am now saying, and I think we've said in our 22 briefs rather clearly, that the definition of a fundamental 23 flaw, in our opinion, is well set forth in CLI 8611 and in 24 the Shnaron-11artin Appeal Board and Commission decisions
() 25 that fol. wed CLI 8611.
Iteritage R por gg ggporation
52 1 It is, if a defect precludes a finding of 2 reasonable assurance. That's what the governments submit the 3 tests should have been.
4 What I am suggesting is that the Board went 5 further and adopted LILCO's proposed test and LILCO has no j 6 basis for now complaining about what the Board found. LILCO 7 failed.
8 JUDGE KOHL: Mr. Miller, wouldn't you agree that t
l 9 the concept of reasonable assurance is somewhat nebulous,
/
10 and you have to flesh that out with some more specifics?
(
11 LILCO attempted to do that through its three part l
l 12 test. Do the governments object to that three-part test?
l l 13 MR. MILLER: The governments would submit that f.hc 14 tests should be the reasonable assurance findings set forth 15 in the Shearen-Harris case and CLI 8611.
16 JUDGE KOHL: How would you decide what's 17 reasonable assurance?
l 18 MR. MILLER: Reasonable assurance is demonstrating l
19 that public health and safety can be protected as required l
20 by 50.47 (a) (1) in the regulations and reasonable assurance 21 goes to whether or not an abstract plan, as approved in l
22 1983-94 by the Licensing Board, can, in fact, be 23 implemented.
24 LILCO makes much about this plan implementability 25 versus plan implementation on the day of the exercise. I Heritage r g p ration
53 1 don't see the difference. I don't see the distinction, and I 2 think it's a game of semantics that LILCO plays here.
O 3 JUDGE KOHL: Do you see the difference between i 4 implementability and how it may have been implemented on a 5 given day with particular individuals who may or mey not be 6 there during the term of the license?
7 MR. MILLER: All you can do, Judge Kohl, as an 8 exercise board, sitting and hearing the evidence, as the
, 9 prior exercise board, i s look at the performance on the day 10 of the exercise ar. . udge whether that performance was 11 adequate and provided reasonable assurance.
12 JUDCE KOHL: No. Excuse me. But I thought that 13 the Commission's instructions in CLI 8611, the Board was to
() 14 determine if there are fundamental flaws in the plan, not 15 fundamental flaws in the performance by particular i
16 individuals on a given day of the exercise.
17 Isn't that what the Commission's directions were?
18 MR. MILLER: If you go beyond CLI 8611, which did 19 not specifically address the implementation question, and if i E
20 you look at the Appeal Board and the Commission decision in 21 Shearon-llarris, those bodies talk about implementation of 22 the plan as well as flaws in the plan in defining a 23 fundamental flaw. j i i 24 What the Board did, Licensing Board in this case [
25 did, is it looked at implementation of the plan. It made a Heritage Rggor gg gporation
54 1 decision, whether the plan, in abstract, as approved by the 2 prior Licensing Board in 1983-84, could in fact work, and 3 the Board concluded in significant respects the plan doesn't 4 work as structured or at least as structured at that time.
5 JUDGE ROSENTHAL: Couldn't work or was it simply 6 that on this particular occasion, in certain respectc, it 7 didn't work, perhaps because of shortcomings on the part of I 8 the people who were carrying it out? l l
9 I mean, it's a completely different principle , [
10 isn't it?
11 MR. MILLER: I think it's both, Judge Rosenthal.
I 12 It couldn't work and didn't work. Take 13 communications. The Board specifically found in its opinion
() 14 that LILCO's communications system had broken down on the f
i 15 day of the exercise in significant respects involving many [
16 different LERO personnel. '
17 The Board went further and said that, in its l
l 18 opinion, that failure was an inherent failure of the LILCO :
19 plan, j l
20 So, I think the Board was saying it didn't work on 1
21 the day of the exercise and as structured, the LILCO plan l
22 cannot work with respect to communications. l 23 JUDGE KOHL: What did the Board say by way of l
24 explanation of why that showed the plan didn't work? Where p
(} 25 did tt.e Licensing Board elaborace on that conclusion?
Heritage Rggor gg ggporation
- - - - . . .-.y --.--m--..m-.--___,,--e_-.__, -
_. _ . _ _ _ . _ - . . ~ , - - . - - - .---_- - -
0 55 1 MR. MILLERt It seems to me all throughout its 2 communications decisions, which comes in with respect to 3 contentions 38 and 39 and EEC activities and the activities 4 of the Rumor Control personnel and in connection with the 5 tracking impairments in connection with Contention 41.
6 There's much language in the Licensing Board's 7 decision about the LILCO plan, its communications structure, 8 and how that structure does not permit a reasonable 9 assurance finding.
10 You can go to the standpoint of what the Board 11 said about lateral communications, the necessity for lateral 12 communications, and let's not forget the Licensing Board did 13 not just base its finding upon a lack of lateral
() 14 communications among field personnel. The Board also, 15 relying on FEMA, found that there had been a breakdown in 16 communications at the EOC, and that that breakdown went to 17 the lateral communications aspects within the EOC.
18 The Board also condemned LILCO's communications 19 structure, which was is a vertical administrative structure.
20 Completely vertical structure. The Board condemned that 21 structure and said it's not workable, it doet not allow 22 response, an adequate response.
23 JUDGE KOHL: Why? I know it condemned it, but 24 what I don't understand is why the Licensing Board cotademned 25 it.
Heritage ration
56 !
1 MR. MILLER: Well, I think because of the 2 performance demonstrated during the exercise, because they O 3 couldn't --
I l
4 JUDGE JONHSON: Why? We want specifics. f i
5 JUDGE KOHL: Why and how? I i
6 MR. MILLER: Let's focus on the traffic f
7 impediments. If you want to ask me about different
.i 8 examples, we'll talk different examples. ;
- t 9 Mith the traffic impediments, in essence, it took l
10 three and a half hours for LILCO to simulate removing the f
~!
11 gravel truck impediment and it went to four hours for the ,
I 12 fuel truck impediment. [
r 13 The Board found that in most respects, those f
() 14 breakdowns were attributable to the breakdown in the i
15 communications structure. That the fact that messages, j 16 communications and instructions had to go from the EOC down 17 the chain to the staging areas, out into the field and then [
i 18 back through that same chain, is an inherent flaw in their [
f 19 structure. l l
20 JUDGE KOHL: I thought the problem was that the f 21 evacuation route coordinator did not communication to his 22 supervisor as promptly as the plan required certain facts 23 relating to the traffic impediments and that, therefore, it 24 was a problem in that individual's performance.
() 25 He did not do what the plan told him to do. Isn't i
Beritage g g g p ration I
57 .l 1 that what the Licensing Board's decision found?
2 MR. MILLER: No. I think that's a rather narrow 3 reading of what the Licensing Board said.
4 That's one problem. It may have been the problem 'i 5 that started the problems that followed. The fact that the 6 evacuation route coordinator did not communicate to his 7 superior at the EOC and to his co-workers at the EOC.
8 Clearly, that was a source of the traffic impediment 9 problems. That's how it started.
10 JUDGE KOHL: But would you agree then that that's [
11 not a problem with the plan itself?
, 12 MR. MILLER: Well, if people can follow the plan
\
l 13 --
1 l () 14 JUDGE KOHL: If somebody told him to call his 15 supervisor and he didn't do that.
16 MR. MILLER: If the evacuation route coordinator 17 would have followed the plan, then certainly some of the problems demonstrated during that exercise may not have 18 19 occurred.
1 4
20 But let's put all that to one side. Let's give j 21 LILCO every benefit of the doubt. Let's start with the time 22 frame of 12:13 rather than 11:00. That's when FEMA prompted 23 LILCO and said you've got problems in the field with these l
4 24 two traffic impediments, You better take care of them.
() 25 JUDGE KOHL: Weren't part of the problems because Heritage g ration
58 1 FEMA wasn't in the place that it was supposed to be?
2 MR. MILLER: No.
3 JUDGE' KOHL: And they didn't reveal themselves, so 4 that there was no way that they could know there was a 5 particular traffic accident?
6 MR. MILLER: Clearly, the Board recognized that 7 the way FEMA constructed the exercise and input the 8 impediments, the artifacts of the exercise, as it's 9 generally called, had something to do with LILCO's ability 10 to verify the impediments, and perhaps was the source for 11 some of the problems that followed. ,
l 12 But that's why I'm saying put all that to one side 13 and let's start with the 12:00-12:13 time frame where FEMA
( 14 issued the prompts to LILCO because at that point, the 15 verification process was over, t
16 Even if you start from the time of FEMA's prompts, 17 it took hours to clear the impediments. There were delays in i 18 getting messages out in the field. There were delays in 19 setting messages down to the staging areas to the dispatch 20 personnel. There were delays with the preparation of the EBS 21 messages regarding the impediments and, in fact, EBS 22 messages were so delayed that by the time they went out 23 talking about the impediments, the impediments under LILCO's 24 performance and their supposed performance had been cleared,
() 25 at least in one case of the --
Heritage g ration
P 59 !
1 JUDGE KOHLt So, that was behind then on that q 2 particular point. Where is the harm as shown in this record
() i 3 attributable to the delay or the incorrect information in ;
4 ths EBS message?
5 MR. MILLER: The harm would be that LILCO is .
6 telling people to avoid an evacuation route because it's 7 blocked by impediments requiring people to do different 8 things and take different actions when, in fact, under the 9 supposed performance of LILCO during the day of the I 10 exercise, that impediment had been cleared.
11 That seems to be clear harm.
12 JUDGE ROSENTHAL: That has a health and safety 13 implication?
() 14 MR. MILLERt I would think so. If people have --
15 health and safety implications of the impediments are many, r
16 but with respect to the EBS messages, if that's what we're r
17 focusing on, if people are told don't go the evacuation (
l 18 route that we've been telling you you should be going, don't 19 follow what we've been telling you to do, go some different l l
, 20 route, take some different measures, I think there's a 21 health and safety impact of that.
22 It may take longer for people to get out of the 23 EPZ.
1 24 JUDGE ROSENTRAIo You' re satisfied that the }
() 25 Licensing Board with respect to each of these found HeritageRegor gg ggporation r
60 1 fundamental flaws, dealt specifically with the question of
~
2 implementability as opposed to actual performance?
\J 3 In other words, I think that you agree that the 4 question is whether or not the plan is implementable as 5 opposed to whether in this particular day, in the course of 6 this particular exercise, somebody didn't do the job that he 7 or she was supposed to do in the fulfillmerit of the plan.
8 Do you agree with that or not?
9 MR. MILLER Judge Rosenthal, frankly, I think 10 that's a distinction without basis.
11 If you take plan implementability in the abstract 12 as far as LILCO would have you take it, it seems to me that 13 becomes a matter for the planning litigation because in the
/-
14 abstract, can a plan be implemented goes to the --
15 JUDGE ROSENTHAL: On any particular day, any 16 individual can fail to fulfill some responsibility. None of 17 us, as the old saying goes, is infallible.
18 Moreover, as I think Ms. Kohl pointed out, the 19 people that are conducting the exercise on any particular 20 day may not be the people who, down the road, will be 21 invoJved in the response to a maximum emergency.
22 Now, if it turns out that the problem is one of an 23 individual having a certain responsibility and not carrying 24 out that responsibility, my question to you is, is that --
{} 25 does that reflect a fundamental flaw in the plan because the Heritage Remrting Corporation (202) 628-4888
61 1 test is not fundamental flaw in the conduct of the exercise /
2 the test is fundamental flaw in the plan?
O 3 MR. MILLER: Judge Rosenthal, my response has to 4 be it can be, but it may not be.
5 We argue, and we continue to assert, that even if 6 LILCO is correct and it's just all the evacuation route 7 coordinator's fault, one mid-level LERO person can cause 8 complete breakdown, a complete failure in responding to 9 impediments.
10 That, in and of itself, is a fundamental flaw. It 11 shows there's no checks, there's no balances of any kind 12 within the plan. But I think that the other answer to your 13 question is that all you can do is look at the performance ,
1
() 14 of LILCO during the day of the exercise as observed and 15 judged and evaluated by FEMA. !
4 16 Ms. McCloskey talked about the fact there were ;
17 1100 people out there that day. FEMA didn't observe 1100 i i
18 people. FEMA observed a handful of the participants of that ,
j 19 exercise. Of the handful FEMA observed, there were many, [
i !
20 many problems. ;
I 21 That's what we have to focus on. We have to focus 22 on the problems and the performance of the individuals, and !
, 23 --
24 JUDGE ROSENTRAL: And these reflect flaws in the ,
l 25 plan rather than simply in the conduct of that exercise, is Heritage ggf ration
- _ _ - _ _ _ - - _ _ _ _ _ . - = _ _ , . - - _ . -
62 1 that right?
-s 2 MR. MILLER: I think there are flaws in both.
k 3 If the Board can point me or LILCO and the staff 4 can point me to any deficiency, any fundamental flaw found 5 by the Licensing Board that goes just to one individual, 6 I'll rethink my position. There are none.
7 Those fundamental flaws went to the performance of 8 an array of individuals, including with the impediments in 9 the evacuation route coordinator, because it's nonsense to 10 argue that it was all the evacuation route coordinator's 11 fault.
12 JUDGE ROSENTHAL: Well, one of the communications 13 problems, if I recall correctly, was placed at the doorstep
() 14 of the evacuation route coordinator, is that not true?
15 MR. MILLER: That's true.
16 JUDGE ROSENTHAL: All right. That was his 17 performance.
18 MR. MILLER: But that wasn't the only performance 19 that made a fundamental flaw deficiency for communications.
20 There were many other inadequate performances.
21 JUDGE ROSENTHAL: All right. But let's look at 22 that. That was found to be a fundamental flaw, was it not?
23 MR. MILLER: His performance was found to be a 24 fundamental flaw as part and parcel of the funcamental flaw
{} 25 in communications.
Heritage Reporting Corporation (202) 628-4888
__. _ ___ . . . .._._)
63 1 JUDGE ROSENTHAL: All right. Now, you would 2 concede that viewed alone, that that did not constitute a 3 fundamental flaw? His shortcomings, the things he should 4 have done but didn't do.
5 Now, if you look at it by itself, --
6 MR. MILLER: If it was just the evacuation route 7 coordinator by himself, everyone else performed well, I 8 would agree. You don't need to reach a fundamental flaw 9 finding. That's not what happened during the exercise.
10 JUDGE ROSENTHAL: So that his shortcomings, then, 11 you concede, standing by themselves, could not constitute a 12 fundamental flaw?
13 MR. MILLER: I would say that any organization,
) 14 regardless of how well it's trained, they're going to all 15 see one person who just can't handle the job and that may be 16 revealed during an exercise.
17 JUDGE ROSENTHAL: Supposing that there are six or 18 eight people that do not perform their jobs properly? How 19 many people are involved in the conduct of this exercise?
20 How many?
l 21 MR. MILLER: LILCO says they put out 1100 people 22 on the day of the exercise.
23 JUDGE ROSENTRAL: All right. There are 1100 people 24 out conducting this exercise. Now, supposing that out of the
() 25 1100, there's a showing that twenty, twenty-five of the Heritage Reporting Corporation (202) 628-4888
64 1 people did not do the job as anticipated in the plan? l 2 MR. MILLER: It would depend on how many of those 3 1100 people FEMA observod and evaluated. They didn't look at i 4 them all, and it would depend on the nature of the person 5 that didn't perform as he was supposed to perform.
6 It may be one thing for a traffic guide not to 7 know his duties. I mean, there was examples, numerous 8 examples of FEMA where it talked with traffic guides in the 9 field, interviewed them. They didn't know that the National 10 Coliseum was the reception center for the public.
11 FEMA thought that was a problem. FEMA did not take 12 that to the level of deficiency, and the Board did not find 13 that to be a fundamental flaw.
14 JUDGE KOHL: But we have to make some judgment 15 then of materiality, of a given individual's function, 16 performance, etc.?
17 MR. MILLER: Materiality of his performance, his 18 job, his duties, how that impacts the rest of the LERO 19 organization and its performance as an organization to the 20 scenario during the exercise.
21 You do have to make that judgment, although yc.
22 should not make that judgment because that's what the 23 Licensing Board did.
24 JUDGE KOHL: If I understand LILCO correctly, 25 they're saying that, all right, that materiality judgment is Heritage g ration
65 1 part 1 of their three part test. The public health and 2 safety aspects.
O 3 We're getting back to try to give some meaning and 4 specifics to the concept of reasonable assurance, and how do 5 we decide that?
6 MR. MILLER: I don't want to be repeating myself, 7 but it seems to me that the concept of reasonable assurance 8 in the context of a fundamental flaw as demonstrated during 9 the FEMA-graded exercise has been well established in the 10 case law in Shearon-Harris, in the Commission's CLI 8611, 11 it's talked about in the regulations in the context of what 12 is reasonable assurance in 50.47 (a) (1), and it seems to me 13 there is ample guidance out there.
() 14 LILCO's only complaint is that it couldn't meet 15 that guidance because it failed the exercise. So, now it 16 wants the criterion changed in some way. I'm suggesting 17 that the Licensing Board applied LILCO's test and they still 18 couldn't pass.
19 JUDGE JOHNSON: Well, I'm a little confused.
20 If radiological consequences are not the prime 21 consideration in reasonable assurance, what is?
22 MR. MILLER: I'm not sure why radiological 23 consequences are not a consideration.
24 JUDGE JOHNSON: Well, why are they not the primary 25 consideration?
Heritage g ration
i 66 1 MR. MILLER: It seems to me one thing --
2 JUDGE JOHNSON- You're talking about reasonab1e 3 assurance of protecting the public. What you're protecting.
4 them from is radiation dose in the event of a reactor j
[
5 accident, and if a problem in the plan is revealed and it is ;
! 6 also revealed that although this problem is there, there's i 7 no change in the radiological consequences, then the same ;
8 level of reasonable assurance is achieved whether the j 9 problem is there or not and, therefore, I cannot see why 4 10 there's a fundamental f1aw.
i i l
11 MR. MILLER: Judge Johnson, first of a11, the j I
12 Licensing Board clearly recognized that you have to look at 13 health and safety aspects of a defect if you're going to
, Ou determine thne's ,oin, to he a fondamenea1 f1aw. l 15 They look to that in every case, in every 16 instance. [
i 17 JUDGE JOHNSON: Well, I'm just citing to you one (
t l 18 in which they specifically eschewed that and that's the 19 delay in the road guides.
l 20 MR. MILLER: The delay in the traffic guides.
1 1
21 JUDGE JOHNSON: Right.
l 22 MR. MILLER: You and I apparent 1y have a 23 disagreement about that point because I say the Board had 24 before it the pian requirement that the traffic guides be in 25 the fie1d by a certain time.
l
- Beritage g g g g p ration
l' 67 ,
1 The Board had before it --
c 2 JUDGE JOHNSON: That's the only thing considered, 3 though. One hour.
4 How, --
I 5 MR. MILLER: No, sir. [
6 JUDGE JOHNSON: -- where does one hour -- is one (
i 7 hour8.101852e-5 days <br />0.00194 hours <br />1.157407e-5 weeks <br />2.6635e-6 months <br /> the guarantee of reasonable assurance? That's what I 8 want to know. Why isn't the radiation dose the guarantee of l 9 reasonable assurance? ,
10 HR. MILLER: Let me just -- there's a lot of f 11 responses I can give you to that question. (
12 First of all, the Licensing Board did not just
- 13 apply the one hour standard. They also applied the standard 14 of three hours for mobilizing the traffic guides from the !
- 15 time of the site area emergency that had been recognized and ;
16 approved by the Licensing Board in the planning litigation. !
17 Mith respect to your dose question, in my opinion, t
18 the Licensing Board looked at the dose question, the *)ealth f i
19 and safety aspects. The Board decided not to accept LILCO's [
20 proffered testimony regarding total population dose because
[
t 21 the Board decided that based on the evidence, the j i
I 22 overwhelming evidence before it, the health and safety 23 determinations, the impact on the public health and safety, [
24 had been presented and made clearly by the governments in l 25 presenting the governments' case.
scritage g g y ration I
- - - , - - - - - + -
.w -- - - . . - . , , - ..-e -.-,.na - , , -+--.~__ __._ m. ~ - - - - , , , ,
, , , , . , , , - - ,.,_,,,.,y ,,
68 1 JUDGE JOHNSON: How? What impact are we talking 2 about if we're not talking about dose?
3 HR. MILLER: Well, we're talking about dose, Judge 4 Johnson. I'm not saying that we're not talking about dose.
5 What I'm saying is that even -- first, let's go 6 back to the nineteen minute time that LILCO wants to talk 7 about.
8 My opinion is that even if there was only a 9 nineteen minute delay in terms of total evacuation time as 10 LILCO asserts, that, under particular scenarios, could 11 impact public health and safety.
12 I also suggest to you that that nineteen minutes 13 delay testimony was discredited at trial by the Licensing
() 14 Board itself.
15 With respect to LILCO's proffer of total 16 population dose, the Board decided it did not need to hear 17 it. The Board decided it had enough before it to make its 18 determination.
19 The governments made clear that they wanted and 20 were willing and ready to contest that evidence. The Board 21 said no, we don't want to hear it.
22 LILCO did not object to the Board's failure to 23 admit that evidence. They haven't preserved an objection for 24 appeal in the first place.
() 25 I guess the only other point I would make is that Heritageg g g p ration
69 1 with respect to dose reduction, I guess this Appeal Board 73 2 must be cognizant of the new rule and the amendment to U
3 50. 47 (c) (1) which expressly states that the adequacy of a 4 plan is not to be judged solely by the dose levels and the 5 dose reductions that may be envisioned in one plan versus 6 another plan.
7 I guess that does come into play in that context.
8 JUDGE JOHNSON: I still would like to understand.
9 You are saying that reasonsble assurance of 10 protecting the public in the event of an accident is the 11 standard one should apply when looking for a fundamental 12 flaw, and I -- whereas, the rule you just cited says you 13 don't look at dose when you're testing one plan against
() 14 another.
15 Nevertheless, I cannot see under the standard that 16 you are talking about how anything but the resultant 17 radiological consequence, i.e. dose, is not the only measure 18 of the efficaciousness of the implementation of a particular 19 plan on a particular day.
4 20 km. MILLER: I don't know if we really have a 21 disagreement, Judge Johnson.
22 It seems to me that what the exercise board was 23 charged with is looking at whether the plan on paper could 24 work, and it decided in significant respects where it found I
(} 25 fundamental flaws that the plan could not work.
HeritageRegor gg ggporation
70 1 With respect to the traffic guide mobilization, 2 the Board had before it not only LILCO's dismal performance 3 in getting the people out into the field, but ample 4 testimony by witnesses for Suffolk County, primarily police 5 witnesses, people as the Licensing Board characterized as 6 knowledgeable in the streets, as to the consequences of 7 those traffic guides reaching their posts late.
8 The consequences, the way the streets would be 9 lost was the phrase that was used at the --
J 10 JUDGE JOHNSON: The police were experts in 11 radiological dose assessment?
- 12. MR. MILLER: The police were experts in the j 13 consequences that would follow from traffic impediments
() 14 remaining without being addressed or taken care of or 15 removed.
16 The police were experts in the consequences of 17 traffic guides under LILCO's plan not getting to their posts 18 in time to fulfill their duties under that plan.
l 19 The police were not experts with respect to 20 radiological dose. They offered testimony as practical 21 people that understand the streets and the way people behave 22 to impediments, to emergencies, to stress, and all these 23 other factors.
f j 24 JUDGE ROSENTRAL: Now, if I can get back to
() 25 something I was exploring with you a short while ago, you're Heritage g f y ration
71 1 satisfied that this Licensing Board has explained adequately 2 why each of these fundamental flaws reflected senething in 3 the plan that couldn't work as opposed to something that 4 didn't happen to work on the day of the exercise?
5 MR. MILLER: I think my answer before, Judge 6 Rosenthal, was that, at least in some cases, it was both.
7 It did not work the day of the exercise and it 8 could not work.
9 JUDGE ROSENTHAL: Then explain why the did not 10 translates itself into could not.
11 MR. MILLER: Well, in the case of --
12 JUDGE ROSENTHAL: Because as I understand the test 13 here, it's fundamental flaw in the plan.
() 14 So, I would think that I would be obligated to 15 look to sea what explanation the Licensing Board put forth 16 with regard to each of these fundamental flaws as to why a 17 particular deficiency, call it what you will, reflected not 18 merely something that didn't work but also something that 19 couldn't work.
20 MR. MILLER: Judge Rosenthal, the Board 21 articulated the standard of fundamental flaw in the plan, 22 lack of reasonable assurance, and, as I've said before, 23 followed LILCO's test.
24 But in terms of whether somathing did not work or
{} 25 could not work, if you look at each of the fundamental flaws Herlinge g g y grporation
72 1 found by the Board, in my opinion, it's scattered throughout 2 their opinion. The Board said it's going to take changes to
'- 3 the plan with respect to training and the training 4 fundamental flaw.
5 The Board said the training program as structured 6 obviously has not trained. You're going to do something 7 different. LILCO, you must remember, prepared for this 8 exercise for three years, had numerous dress rehearsals 9 before the oxercise.
10 This was the biggest thing that ever happened to 11 that company, and they still failed miserably.
12 JUDGE ROSENTHAL Then what you're telling me is 13 that you're satisfied that the Licensing Board adequately
(} 14 explained in each instance why the plan could not as opposed 15 to did not work?
16 MR. MILLER And I'm also saying the fundamental 17 flaw in the plan as interpreted by the Commission and the 18 Appeal Board subsequent to CLI 8611, fundamental flaw in the 19 plan also -- a fundamental flaw can be an implementation 20 deficiency, can be a --
21 JUDGE ROSENTPAtt Solely a limitation?
22 km. MILLER Can be solely -- if the plan on paper 23 is the best thing in the world, it can't have a better plan, but ytu get out there and test it and you can't implement i
11eritaje g gf y ration 9 "
73 1 JUDGE ROSENTHAL No, no. That's 2 implementability.
Ib w,l 3 I am talking again about -- I mean, for example, 4 if you have a plan, the plan is fine on paper, it happens on 5 the day of the exercise that a key individual had a fight 6 with his wife the night before and/or had a fight with her 7 husband, either way, either way, and comes to work, his mind 8 on something entirely different, and because the individual 9 has a key role in the implementation of the plan, 10 significant portions of the plan are not properly carried 11 out with possible health and safety implications.
12 Now, my understanding is, and if I'm wrong, please 13 correct me, that that failure on the part of the key
() 14 official could not be deemed to be a fundamental flaw in the 15 plan unless one were to say, well, the plan was deficient in 16 giving the responsibilities to somebody who might have a 17 fight with his or her spouse the night before the exercise.
18 Now, I don't care what might have been the health 19 and safety implications that might have resulted from this i 20 individual's failure. It seems to me that his or her failure l 21 does not constitute a fundamental flaw.
22 You have to show that there was something in the 23 plan that was not subject to being implemented, not that 24 there was some aspect of the plan which, on this particular I
(} 25 day, wasn't.
HeritageRggor gg gporation
74 1 MR. MILLER: Judge Rosenthal, all you can do is 2 look at the evidence on the day of the exercise and O 3 determine whether the plan was in fact implemented in the 4 way which is supposed to be implemented.
5 Under your example, I would say still that if a 6 key individual doesn't perform for whatever reason, fight 7 with spouse or for whatever reason, if thai, individual 8 doesn't perform and the organization as a whole breaks down 9 and can't handle basic problems introduced by FEMA, there's 10 a fundamental flaw in the plan.
11 The plan doesn't provide checks and balances. No 12 one is looking over the shoulder of that individual to see 13 if he does perform. No one is checking his performance.
() 14 That's a fundamental flaw of a plan.
15 Other emergency organizations, I can assure you, i
l 16 at least if you take the police as an example, they've got j
17 checks and balances. They don't let one individual make the 18 whole organization fall apart. So, it can be a fundamental 19 flaw if it's just one individual for whatever reason.
2 20 JUDGE ROSENTHALt But you would need then a 21 determination that the fundamental flaw in the plan was, as i 22 you have it, the absence of checks and balances, not simply 23 the fact that this individual didn't do his or her job 24 properly?
l (} 25 MR. MILLER: I think that would be a critical HeritageRegor gg ggporation
75 1 ingredient to looking at whether or not it's a fundamental 2 law.
3 JUDGE ROSENTHAL: The Licensing Board has analyzed 4 it, you're telling me, from that standpoint.
5 MR. MILLER: No, no, 1o. What I'm saying is that 6 this exercise did not concern fundamental flaws that would 7 result of any single individual.
8 Sure. The Licensing Board, like FEMA, looked at 9 the performance of individuals. That's all you can look at, 10 is the performance of individuals. But it wasn't any single 11 individaal.
12 . JUDGE ROSENTHAL: But you're asking us to uphold 13 the Licensing Board's determination that there were certain
() 14 fundamental flaws. If we're to uphold the Licensing Board 15 determination, we have to first conclude, do we not, that 16 the Licensing Board analysis leading it to the conclusions 17 that it reached was a sound analysis.
18 If it's not a sound analysis, I don't understand 19 how the conclusion can be upheld.
20 MR. HILLER: My understanding of the test this 21 Board has to apply is that with respect to the 22 determinations made below, based upon review of the entire 23 record, you can change the result reached below only if that 24 entire record compels a different result. That's the
(} 25 standard, as I understand it.
Meritage g g g p ration
i 76 l 1 If this Board looks at the entire record, looks at 2 the decision below, decides that the Licensing Board erred O 3 in fundamental ways and that a different result is 4 compelled, you have the authority to change that resut.t.
5 JUDGE ROGENTHAL: Also, if we find that the 6 Licensing Board has not properly articulated the basis for 7 its determinations, we, under long-settled principles, we 8 have the ability, if not the duty, to romand it.
9 HR. HILLER: I wouldn't disagree with that, but I 10 certainly would suggest to the Board that the Licensing 11 Board did articulate its reasoning, its bases, for its 12 conclusions in a very sound fashion.
- 13 JUDGE ROSENTHAL
- We'll have to look at the O 14 determinations and the articu1ation of the easts for those 15 determinations for ourselves.
16 HR. MILLER: I guess I'11 proceed.
17 Maybe what I should do in the little time lett to 18 se is to try to respond to some of the points that were made 19 by opposing counsel, and I think we've addressed a lot of 20 those points.
21 JUDGE JOHNSON: While you're having a little 22 trouble with what you want to say next, I'll stimulate 1
23 something.
24 HR. MILLER: Stimulate me.
1 25 JUDGE JOHNSON: With respect to communication, is Heritage g g g f p ration
77 1 it your reading of the Licensing Board's opinion that the l
2 communications system in an emergency plan should be l (
l 3 entirely lateral?
4 MR. MILLER: Oh, no, sir. I don't think anyone has 5 over suggested that.
6 I think the most that's ever been suggested by the 1
7 governments through its witnesses and its case is that a 8 solely vertical communications scheme, as LILCO has and l 9 LILCO's always had in place in its emergency plan, is not 10 workable because it does not allow personnel to respond to l 11 the unexpected, to the ad hoc problems that are surely going 12 to arise during any emergency.
13 JUDGE JOHNSON: And you --
() 14 MR. MILLER: And we wouldn't it to be purely l
15 lateral communications system. That wouldn't work either.
16 I think it's got to be a mix of the two.
17 JUDGE JOHNSON: And you and the Licensing Board -- ,
18 I mean, agree -- do not see a difficulty associated with 19 people in the field making decisiot4s and taking actions that 20 the Headquarters is not aware of?
21 HR. MILLER: I don't think we've ever suggested 22 that, Judge Johnson.
23 JUDGE JOHNSON: Doesn't lateral communication, 24 what you've just suggested, responding to unexpected events 25 in the field laterally, doesn't that almost imply that the
[}
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78 1 people at the top don't know what's going on at the bottom?
2 MR MILLER: No, sir.
O 3 You always keep people informed at the top. I ;
4 mean, working with the police witnesses for six and a half f 5 years, one thing I've learned is how you keep people {
- 6 informed at the top.
7 But that doesn't mean people in the field can't !
8 communicate, can't talk, can't between themselves try to :
I 9 resolve problems that are occurring in the field. f i
l 10 It doesn't mean that the traffic guides under j 11 LILCO's scheme couldn't talk to one another about the best ;
I- 12 way to gat that traffic around that impediment, but that 4 13 doesn't mean you don't get on your radio and tell the people l O 14 at the toe what vou're doine.
15 JUDGE JOHNSON: Is there evidence in this record 4 16 that traffic g'. ides on the scene might have been able to I t
17 have cleared the impediments more rapidly as a result of I
18 lateral coruaunications? !
t
-! 19 HR. MILLER: Well, there's a problem in that i
20 context, Judge Johnson, because the traffic guides that f I
, 21 would have been closest to at least one impediment, the [
l 22 gravel truck impediment, in fact, right down the road from j 23 the scene of that impediment, was so late in getting to l l
j 24 their post that they weren't involved in the supposed j 25 response to the --
j Mestaw up.m u - t 1 i i
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79 1 JUDGE JOHNSON: Where did the idea of lateral -- I 2 mean, where is there any demonstration that lateral O 3 communications would have helped?
4 HR. MILLER: There is ample testimony in the 5 record submitted by the governments through primarily again 6 police witnesses as to how you need to have that ability.
7 JUDGE JOHNSON: Were the police witnesses 8 observing this exercise?
9 HR, MILLER: We had some police witnesses that 10 observed portions of the exercise, yes.
11 JUDGE JOHNSON: Well, was this testimony you're 12 talking about testimony as a result of their experience or 13 was it a .esult of observations of what went on at the
() 14 exercise?
15 MR. MILLER: It could have been a combination -- I 16 assume a ccmbination of both. Certainly, their experience is 17 a far-reaching factor in the testimony they offered.
18 Certainly, the fact that they observed portions of the 19 exercise maybe came into play, and certainly, they were well 20 familiar with the exercise scenario, LILCO's performance, 21 the FEMA report of that performance.
22 JUDGE JOHNSON: Specifically, is there any 23 indication that some lateral communication, a spocific 24 lateral communication with respect to a specific impediment,
{} 25 would have helped clear it up?
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80 1 HR. HILLER: The best evidance offered in response s 2 to your question is the expert testimony that was proffered b 3 by the Suffolk County Police witnesses.
4 You've gut to keep in mind, Judge Johnson, that 5 what we were faced with here --
6 JUDGE JOH!ISoli You're really not answering my 7 question.
8 HR. HILLER: I'm trying to.
9 What we were faced with here is a compla*ely 10 vertical communications scheme. Therefore, it's hard for me l
11 point to you in the record as to where lateral 12 cumnunications would have nade a difference because lateral i l
- 13 communications werer.'t permitted under LILCO's scheme.
14 But there is evioence in the record from the 15 police witnesses as to, in their expert opinion, how lateral 16 communications would have made a difference, 17 JUDGE JOH11 Soli Okay. Thank you.
18 Go ahead with what you were talking about.
19 MR. HILLER: I guess one point made by Ms.
20 McCloskey, I'm going to go through thes6 quickly, is that 21 the purpose of an exercise is to alicw one final look at the 22 plan, to determine whether the plan is implementable, to 23 determine whether reasonable assuianca findings can be made.
24 I listened to that remark and I said to myself, 25 the governments do not disagree with that. That is the Heritage -
ration
81 1 purpose of an exercise. We have no dispute with the way she 2 characterized what this Board and what the Licensing Board
)'
(
3 below should have been concerned with.
4 JUDGE KOHL: Does that mean you have no dispute 5 with the three part test that LILCO proposes for o 6 fondamental flaw?
7 MR. MILLER: We have a dispute with that test. We 8 think the Board went too far.
9 JUDGE KOHL: What specifically do you find 10 objectionable about that?
11 FR. MILLER: It seems to the governments that the 12 test should simply be the reasonable assurance test, that if 13 the defect precludes reasonable assurance, then that's a
() 14 fundamental flaw in the exercise.
15 JUDGE ROSENTHAL: Even if it's not incorrectable?
16 Excuse me. Even if this defect could be corrected without i 17 substantial revisions of the plan, the mere fact that the 18 defect has a reasonable assurance, relationship is enough, 19 is that correct?
20 MR. MILLER: We don't think that the Licensing 21 Board had to go to that part of the LILCO test about easily 22 correctable.
23 In our opinion, if a defect was so fundamental 24 that it would preclude reasonable assurance, whether or not 25 it can be easily corrected, is just a matter of opinion and Heritage g ration
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82 1 the Board did not have to go that far.
,s . I mean, after all, what are we talking about hern?
()
3 We're talking about LILCO's opinion that it's easily 4 correctable. At a minimum, it seems to us, you'd have to 5 wait until the next' exercise to get FEMA's evaluation as to 6 whether that deficiency, that fundamental flaw had, in fact, 7 been corrected.
8 So, we don't think the Board needed to go to that 9 easily correctable standard, but, in our opinion, the Board 10 did and still found the fundamental finws that it found.
11 JUDGE JOHNSON: You are -- excuse me, Alan. Go 12 ahead.
13 JUDGE ROSENTHAL: Go ahead.
() 14 JUDGE JOHNSON: No.
15 JUDGE ROSENTHAL: Just so I understand you 16 correctly, in your view, it's irrelevant whether the defect 17 is one that is subject to ready correction, that as long as 18 that defect had an implication in terms of the reasonable 19 assurance finding, that's it.
20 MR. MILLER: Looked at in the abstract, I don't 21 think the Licensing Board needs to look at easily 22 correctable.
23 I think looked at in the context of this case, the 24 Board did look at that standard, and the Board concluded that pene of these problems that they concluded wer.e
(} 25 Heritage Reprting Corporation (202) 628-4888
83 1 fundamental flaws were easily correctable problems, and as I :
I 2 pointed out earlier, we' re four revisions down the road from i 7-(_) ,
3 the plan that was exercised. '
4 So, obviously, LILCO has also thought that these 5 matters weren't easily correctable, and if you go to the 6 list of fundamental flaws, in the cases, for example, 7 mobilization of traffic guides, LILCO has made fundamental 8 changes to its plan in an attempt to resolve the problems it 9 :.ved during the '86 exercise.
10 JUDGE ROSENTHAL: Aren't these emergency plans 11 like our Constitution, living documents, and where they -- I 12 would assume, without knowing, that they're under constant 13 revision whether or not there is a feeling abroad that
() 14 there's some serious defect.
15 MR. MILLER: I've certainly heard that before, 16 Judge Rosenthal. They are liv a.g, breathing documents.
17 They always change, and we have to change along with them.
18 But in this case --
19 JUDGE ROSENTHAL: Isn't that right?
20 MR. MILLER: It is right. They do change, but 21 what I'm suggesting to you is that the fundamental flaws 22 demonstrated by the exercise that the Licensing Board found, 23 LILCO has changed its plan in ways to take those problems 24 into account, to try to rectify those problems.
25 In some respects, I should point out. In
[}
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c -
84 1 communications, from my knowledge of the present revisions
- 2 to LILCO's plan, I assume LILCO still has a vert;. cal O communications scheme, and I assume that the LJ'ansing Board 3
4 was corre:t in its analysis that such a scheme is inherently 5 unworkable. There's going to continu. to be problems with 6 the LERO performance and LILCO's response to handling 7 emergencies at Shoreham.
8 I guess that's a time for future litigation to 9 tell.
10 JUDGE KOHL: I'm sure it will be.
11 JUDGE JOHNSON: I hate to revisit this, but you 12 keep using the word, which I find an exercise in jargonese, 13 but it's used by everyone, reasonable assurance.
() 14 For my benefit, would you tell me precisely what 15 yo'2 mean when you say reasonable assurance and what you 16 think the Commission meant when they used the word 17 reasonable assurance't 18 MR. MILLER: I think the Commission meant what it 19 said in the Shearon-Harris decision, and what it said in CLI 20 8611, from my standpoint, reasonable assurance, with respect 21 to an exercise and the finding of a fundamental flaw, goes 22 to whether or not a plan in fact can be implemented or 23 whether there are fundamental flaws in the plan.
24 I think thero's two ways of saying the same thing.
(} 25 JUDGE JOHNSON: Reasonable assurance of what?
Heritage gg ration
- c. -
85 1 MR. MILLER: Reasonable assurance of protecting
. 2 the public health and safety.
3 JUDGE JOHNSON: Okay. From what? You've got to 4 protect them from something, right?
5 MR. MILLER: I assume, Judge Johnson, that we're 6 talking about protecting them from the consequences of an 7 emergency at a nuclear plant, and those consequences, of 8 course, can draw dose, and whether those people are going to 9 be contaminated and getting those people out cf the area as 10 fast as you can get them out of the area, and that's what 11 the Licensing Board looked at.
12 JUDGE JOHNSON: Okay.
13 MR. MILLER: I think my time is just about up.
() 14 JUDGE KOHL: You've got about seven minutes.
15 MR. MILLER: Okay. Let me just -- with respect to 16 the staff's position, I'll be more than happy to entertain 17 questions from the Board.
18 I think that we do a pretty good job in our reply 19 brief of pointing out, number one, that the staff position 20 was never brought up before the Licensing Board and clearly l
21 could have been on numerous occasions.
22 JUDGE ROSENTHAL: No. They didn't have the 23 insight. You heard --
24 MR. MILLER: Judge Rosenthal, I suggest that
(} 25 that's a little contrived excuse that we've heard here this l Heritage Reprting Corporation I
(202) 628-4888
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86 l
1 morni.af.
7s 2 The new rule, which was first proposed in October
(_)
3 of 1987, published in November 1987, made final December 4 3rd, I think, 1987, clearly that new rule, if you look at f the new rule and you look at CLI 8613, the new rule did 6 nothing that was not set forth, reasons articulated by the 7 Commission in CLI 8613.
8 JUDGE ROSENTHAL: So, you look at it as simply a 9 codification of prior adjudicatory determination?
10 MR. MILLER: Exactly, and CLI 8613 came out in 11 July 1986, and the staff had so many opportunities to bring 12 this to the Licensing Board that it just doesn't deserve 13 much further comment, except for the fact that Ms. Young
() 14 this morning seems to even have admitted that before the 15 staff filed its proposing findings to the Licensing Board, 16 it realized, it got insight and realized that the new rule 17 changed everything, and they still didn't bring it to the 18 Licensinc Board.
19 And I suggest that under these circumstances, this 20 Board cannot take into account or consideration matters that 21 were not argued before the Licensing Board, and that's a 22 clear rule that governs this Board's jurisdiction.
23 JUDGE KOHL: Mr. Miller, what do you think of the 24 staff's analogy in itr. brief of this fundamental flaw
{} 25 problem to problems in quality assurance?
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87 1 They suggest that the standards that we set down
- 2 in Calloway and has been followed many times since, that you
\-)
3 should take into account whether thare are pervasive 4 failures and a QA problem and whether or not they have been 5 or could be corrected. Sounds a lot like LILCO's --
6 MR. MILLER: Sounds like LILCO's test.
7 JUDGE XOHL: Right. And do you think that's an 8 appropriate analogy given that the point in litigation in 9 which exercise issues are raised and just the whole nature 10 of it?
11 MR. MILLEB: My response, Judge Kohl, is that it 12 does sound like LILCO's test, and I have made as good as I 13 can make it that the governments believe that the Licensing
() 14 Board went too far in the sense of adopting LILCO's test.
15 So, the Licensing Board would have gone too far in 16 essentially adopting that test now proposed by the staff. I 17 don't think the Board needed to go as far as it went, but 18 even though it did, it found the fundamental flaws, and 19 they're supported by the evidence.
20 JUDGE JOHNSON: Would you distinguish between this 21 Licensing Board's going too far in adopting the LILCO test 22 and the performance of the lhearon-Harris Board which was 23 countenanced by the Commission in 8624 with respect to day 24 of the exercios performanca glitch 9s?
25 MR. MILLER: You're talking about the Shearon-
{
Heritage gg ration
88 1 Harris Licensing Board?
rs 2 JUDGE JOHNSON: That's correct.
O MR. MILLER: Well, it seems to me that the 4 fundamental difference between the two is that the Licensing 5 Board in Shearon-Harris was faced with a positive FEMA 6 finding.
7 JUDGE JOHNSON: Were they not also faced with 8 deficiencies, findings of deficiencies?
9 MR. MILLER: My memory may be hazy, but if I'm not 10 mistaken, before the Licensing Board in Shearon-Harris, 11 deficiency was defined in a different way than it is now 12 defined by FEMA, than was defined at the time of the 13 Shoreham exercise.
() 14 Deficiency by FEMA is now defined to essentially 15 be an observed inadequacy which precludes reasonable 16 assurance for the protection of the public health and 17 safety.
18 I think the deficiency standard definition used by 19 FEMA at the time of the Shearon-Harris Licensing Board 20 litigation was a lesser standard. So, I don't think you can 21 draw that analogy.
22 JUDGE JOHNSON: There was, in fact, no negative 23 finding by the FEMA in this case?
24 MR. MILLER: There was no negative finding by
{} 25 FEMA.
Heritage Reporting Corporation i (202) 628-4888
89 1 JUDGE JOHNSON: I'm aware of what the testimony
, 2 was, but there is no negative FEMA finding in this
(, ,)
3 particular case?
4 MR. MILLER: There was none because by agreement 5 between FEMA and RC, there would be none one way or the 6 other at the time FEMA conducted the exercise. But as you 7 said, you' re aware of the FEMA testimony.
8 Let me try to end this up by just saying that, or 9 suggesting to the Board that if a plan cannot be implemented 10 by people who train for three years as was the case at 11 Shoreham, how could one conclude and on what basis that the 12 plan is implementable?
13 I mean, that's the question I keep asking myself.
() 14 That's why I think this is a distinction without basis 15 between LILCO's plan implementability and the implementation 16 of the day cf the exercise.
17 And LILCO's references, constant references to the 18 Licensing Board's failure to examine all of the records and 19 all of the evidence, I mean that's belied just by the size 20 of the decision. Any reading of that decision shows you that 21 the Licensing Board was careful in sifting through the 22 ovidence.
23 It referred to the testimony presented by both 24 parties in the reasoned analyses that, of course, attributed
{} 25 credibility where it had to attribute credibility to the Heritage Rep rting Corporation (202) 628-4888
90 1 witnesses, and I point out only because it's no where been f- 2 said that LILCO in its entire two briefs before this Board 3 cites to, if my count last night is correct, forty-six pages 4 of hearing transcript in total in all of their briefs.
5 The Licensing Board in its decision cites to 6 hundreds of pages.
7 JUDGE ROSENTHAL: The Licensing Board, if it 6 wishes to insulate itself from appellate reversal, should 9 just write 6 or 800 page opinions?
10 MR. MILLER: No.
11 JUDGE ROSENTRAL: I am struck with it, with an 12 element of terror in the suggestion that we ought to put 13 some reliance on the length of that decision.
() 14 MR. MILLER: No. But, Judge Rosenthal, what I'm 15 suggesting is that if the Licensing Board conducted a full 16 and fair review of all the evidence put before it and 17 presents a reasoned analysis of the evidence put before it 18 as the Licensing Board did in this case, this Board has to 19 show due deference to the Licensing Board's decision.
20 JUDGE KOHL: Thank you, Mr. Miller.
21 MR. MILLER: Thank you.
22 JUDGE KOHL: Ms. McCleskey, you have about seven 23 minutes.
24 MS. McCLESKEY' I have nothing further, Your
[} 25 Honor.
Heritage Reprting Corporation (202) 628-4888 0
V 91 1 JUDGE KOHL: Thank you.
2 I thank all the participants for your arguments O- 3 this morning.
4 The case is submitted.
5 (Whereupon, at 11:38 a.m., the hearing was 6 concluded.)
7 8
9 10 11 12 13 Ou i 15 16 17
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, 19 i
20 21 l 22 l
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1 CERTIFICATE
(~N 2
\)
3 This is to certify that the attached proceedings before the 4 United States Nuclear Regulatory Commission in the matter 5 of:
6 Name: LONG ISLAND LIGHTING COMPANY 7
8 Docket Number: 50-222-OL-5 9 Place: Bethesda, Maryland 10 Date: September 14, 39J8 11 were held as herein appears, and that this is the original 12 transcript thereof for the file of the United States Nuclear 13 Regulatory Commission taken stenographically by tue and, 14 thereafter reduced to typewriting by me or under the
() 15 direction of the court reporting company, and that the 16 transcript is a true and accurate record of the foregoing 17 proceedings.
18 /s/ ~
d 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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