ML20196F699
| ML20196F699 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/01/1988 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#488-7618 OL-3, NUDOCS 8812140070 | |
| Download: ML20196F699 (57) | |
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.g3 mc -5 a2:02 UNITED STATES OF AMERICA: ' ,~
NUCLEAR REGULATORY COMMISSION' liefore the Atomic Safety and Licensing Iloard In the Matter of )
)
LONG ISLAND LIGIITING COMPANY ) Docket No. S0-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S ANSWER TO INTERVENORS' BRIEF ON SCIIOOL BUS DRIVER ROLE CONFLICT AND EMERGENCY BROADCAST SYSTEM (EBS) l l
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l IIunton & Williams 707 East Main Street P.O. Box 153S l
Richmond, Virginia 232)~1 l December 1,1988 fff 21 AOO70 oo;no; l c ADocg 0300o3pp PDR l D S03
a TABLE OF CONTENTS Page I. I N T R O D U C TIO N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Intervenors' Principal Issue is Noncooperation . . . . . . . . . . . . . . . . . . 2 B. Intervenors Demand a Perfect Hearing ....................... 4 II. S C H O O L B U S D R IV E R S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. The ASLB Correctly Ruled that Role Conflict of School Bus Drivers Would Not Prevent the Safe Eva cua tion of Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
- 1. The Appeal Board Did Not Prejudge the Evidence ..................................... 7
- 2. The Licensing Board's Findings Weri Based on a Preponderance of the Evidence . . . . . . . . . . . . . . . . . . . 10
- a. Intervenors Presenteo Essentially Nothing New on the Predctive Validity 0f Polls . . . . . . . . . . . . . . . . . . . . . . . . . . . . .- 10
- b. The Board Weighed the Evidence Using the Soundest of Scientific Principles . . . . . . . . . . . . . . 14
- c. The Board Did Not Ignore Intervenors' O t her Evide nce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 B. The Licensing Board Conducted the Proceeding According to the Appeal Board's Remand Order . . . . . . . . . . . . . . . . 16
- 1. The Record Was Already Open . . . . . . . . . . . . . . . . . . . . . . . . 17
- 2. The Remanded Issue Was the "Number of S chool B us D riv e rs" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 4 3. The Issues Raised In Intervenors' Brief Were Litigated in Fact, Were Not Raised Below, or Were Outside the Scopo of the Remanded Issue . . . . . . . . . . . . 23
- a. Recruiting Drivers and Calculating School Popula tions . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
- b. E a rly D is m issal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 i
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- c. The Availability of Buses, School Relocation Centers, and Evacuation Time Es t im a t es . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
- d. Other Previously Litagted Issues . . . . . . . . . . . . . . . . . 28
- e. Noncooperation of School Districts . . . . . ......... 29
- f. Bus Drivers Returning Buses . . . . . . . . . . . . . . . . . . . . 30
- g. Evacuation of liandicapped Children . . . . . . . . . . . . . . 31
- h. Notifying, Mobilizing, and Dispatching Bus Drivers and Logistical Difficulties a t B us Y a rds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
- 1. Monitoring and Decontamination of S chool C hild re n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
- j. Letters of Agreement with Bus Dispatchers
'and Distances LERO Drivers Must Travel . . . . . . . . . . . 33 III. EBS ..................................................... 34 A. The ASLB Correctly Granted LILCO's Summary Disposition Motion on the EBS Issue . . . . . . . . . . . . . . . . . . . . . . . . . 34
- 1. Background ..................................... 34
- 2. The ASLB Correctly Found LILCO's EBS Adequa te on the Merits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
- a. The ASLB Correctly Found that the State EBS Provides Adequate Coverage of the 10 -M ile E P Z . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
- b. The ASLB Correctly Found that LILCO Does Not Need an Agreement with WCBS . . . . . . . . . . . 40
- c. The ASLB Correctly Found that intervenors Failed to Controvert Other Facts in LI L C O's M o t io n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
- 3. The ASLB Correctly Determined that Intervenors Did Not Need Further Review of LILCO's EBS Provisions ...................................... 4S
- 4. The ASLB Correctly Dismissed the WPLR Co n t e n t io n as M oo t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 IV. CONCLUSION ............................................. 49 l
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TABLE OF AUTHORITIES Page l
I Court Decisions l l
Massachusetts v. N RC, 856 F.2d 378 (1st Cir.1988) . . . . . . . . . . . . . . . . . . . . . . . . . 3 NRC Decisions Carolina Power & Light Co,(Shearon Harris Nuclear Power Plant, Units 1-4), A LAB-526, 9 NRC 122 (1979) . . . . . . . . . . . . . . . . . . . . . . 20 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-843, 24 NRC 200 (1986) . . . . . . . . . . . . . . . . . . . . . ,
21
-Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-852, 24 NRC 532 (1986) . . . . . . . . . . . . . . . . . . . . . 21 l Carolina Power & L!rht Co. (Shearon Harris Nuclear Power Plant), LBP-85-27A,22 NRC 207 (1985), af f'd, CLI-87-1, i 2 5 N R C 1 ( 19 8 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,16 Carolina Power & L!rht Co, (Shearon Harris Nuclear Power Plant), LBP-86-11,23 NRC 294 (1986) ............................ 12 Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station Unit 1), ALAB-727,17 NRC 760 (1903) . . . . . . . . . . . . . . . . . . . . . . . 8 Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station, Unit 1), LBP-82-47,15 NRC 1538 (1982),
remanded, A L AB-727,17 NRC 760 (1983) . . . . . . . . . . . . . . . . . . . . . . 6,8,12 Consolidated Edison Co. (Indian Point, Unit No. 2), LBP-83-68, 18 NRC 811 (1983), reviewed, CLI-85-6,21 NRC l 10 4 3 ( 19 8 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Detroit Ed] son Co. (Enrico Fermi Atomic Power Plant Unit 2),
O D-8 4 - 11, 19 N R C 110 8 ( 19 8 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Long Island Lighting Go a (Shoreham Nuclear Power Station, Unit 1),
' CLI-85-12,21 NRC 1587 (1985) ................................. 35 Long Island Lighting Co a (Shorcham Nuclear Power Station, Unit 1),
C LI-8 6- 13, 2 4 N R C 2 2 ( 1.9 8 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4
)
i Long Island L!rhting Co. (Shoreham Nuc! car Powe:' Station, Unit 1),
CLI-86-14,24 NRC 36 (1986) .................................... 4 l
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-iv-4 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
C LI-8 7-05, 25 N R C 88 4 (198 7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 4 6 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
A L A B-8 2 7, 2 3 N R C 9 (198 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5 Long Ist_and Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
A L A B-8 3 2, 2 3 N R C 135 ( 19 8 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,7,8 Long Island Lighting Co. (Shoreham Nuclear Power Stat'on, Unit 1),
A L A B-855, 2 4 N R C 79 2 (IS 8 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21 Long Island Lighting Co. (Shoreham Nuclear Power Station, Jnit 1),
ALAB-905,28 NRC ( N ov . 2 9, 19 8 8 ) . . . . . . . . . . . . . . . . . . . . . . . . . 13,30 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-85-12,21 NRC 644 (1985), aff'd in relevant parts, A L A B-8 3 2, 2 3 N R C 135 (198 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LB P-85-31, 2 2 N R C 410 (19 8S) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,23 Long Island Lighting Co. (Shoreham NuciMr Power Station, Unit 1),
LBP-87-26,26 NRC 201 (1987) . . . . . ....................... 27,36,47 Long Island Lighting Co. (Shoreham Nuclear Powar Station, Unit 1),
LB P-87-3 2, 26 N RC 47 9 (198 7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 27
_I.on:tIsland Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-88-13,27 NRC 509 (1988), aff'd in part and remanded, ALAB-905,28 NRC ( N ov. 2 9, 19 8 8 ) . . . . . . . . . . . . . . . . . . . . . . . . . 12,J3 Long Island Lightitig Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-88-24,28 NRC (Sept. 23,1988), aopeal pending ........... passim Louisiana Power & Likht Co. (Waterford Steam Elec. Station, Unit 3), A L A B-732,17 N R C 1076 (198 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-81-59,14 NRC 1211 (1981), Jff'd in principal part, CLI-83-22,18 NRC 299 (1983) . . . . . . . . . . . . . . . . . . . 6,11 Eacific Gas & Electric Co. (Dlablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-82-70,16 NRC 756 (1982),
a f f'd, C LI-8 4-13, 2 0 N R C 2 6 7 (198 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12 h)lladelphia Electric Co. (Limerick Generating Station, Units l and 2), ALAB-819,22 NRC 681 (1985) ........................... 21 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836,23 NRC 479 (1963) .................... 8,9,16,21,27 '
Philadelphia Electric Co. (Limerick Generating Station, Units
-v-s 1 and 2), A L AB-857, 25 N RC 7 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . passim PhiladelDhla Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-85-14,21 NRC 1219 (1985) ......................... 6, 8 Portland General Electric Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287 (1979) ........................................... 20 Public Service Co. of indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), A L A B-459, 7 N RC 179 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-513,8 NRC 694 (1978) ............................. 28 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-899,28 NRC 93 (1988) ............................. 21
_P_u_blic Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LB P-88-3, 27 N R C 245 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Southern California Edison Co_. (San Onofre Nuclear Generating Stations, Units 2 and 3), ALAB-717,17 NRC 346 (1983) . . . . . . . . . . . . . . . . 27 Southern California Edison Co. (San Onofre Nuclear Generating Stations, Units 2 and 3), LBP-82-46,15 NRC 1531 (1982) . . . . . . . . . . . . . 27-28 Southern California Edison Co. (San Onofre Nuclear Generating Stations, Units 2 and 3), LBP-82-39,15 NRC 1163 (1983) . . . . . . . . . . . . . . . 28 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-876,26 NRC 277 (1987) ........................... 21 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-88-25, 28 NRC (Sep t. 2 7,19 8 8) . . . . . . . . . . . . . . . . . . . 21 V!rginia Electric and_ Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584,11 NRC 451 (1980) . . . . . . . . . . . . . . . . . 39 Unpublished Shoreham Orders Memorandum and Order Regarding Motion for Change in Schedule, Request for Conference Call, and Motion to Compel Discovery (Nov. 14, 1983) ............................. 18,18-19 Memorandum and Order (Ruling on Applicant's Motion of October 22,1987 for Summary Disposition of Contention 25.C Role Conffict of School Bus Drivers)(Dec. 30, 1987) .. ................... 20 Memorandum for Hoard and Parties from Secretary of the Commission (Jul e 2 3, 19 8 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 0, 21
-vi-Memorandum and Order (Ruling on LILCO Motion In Limine and Motion to Set Schedules)(February 23,1988) .................... 22, 26-27 Memorandum and Order (Ruling on LILCO Motion to Compel Answers to Certain Interrogatories and Requests for Production of Documents (Apr. 14 , 19 8 8 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Board Memorandum and Order on Pending Motions to Strike (May 9,1988) . . . ........................... 22,25,28,29,33 Supplemental Memorandum and Order Errata (May 12,1988) . . . . . . . ........................... 22,25,28,29,33 Statutes and Regulations 5 0 Fed. R eg. 4 3,0 8 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 10 C . F. R . 5 5 0. 4 7(cX 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,29,37 4 7 C . F. R . S 7 3.18 2 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 4 7 C. F . R . S 7 3. 9 31(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 47 C.F.R. S 73.933 . . . . . . . . . ...................................... 43 10 C . F . R . 5 2. 7 4 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Misec11aneous Exec. Order No. 12,657, 53 Fed. Reg. 4 7,513 ( 19 8 8 ) . . . . . . . . . . . . . . . . . . . . . . 40,41 l NUREG-0654 ................................................. 40,41 FEMA-REP-10 . . . . . . . . . . . . ................................... 37,42 FEMA-43...................................................... 42 l
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, LILCO, December 1,1988 i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing ADDeal Board in the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
L1LCO'S ANSWER TO INTERVENORS' BRIEF ON SCHOOL BUS DRIVER ROLE CONFLICT AND EMERGENCY BROADCAST SYSTEM (EBS)
This is LILCO's answer opposing the Intervenors' brief in support of their appeal of LBP-88-24, Governments' Brief in Support of Appeal of September 23, 1988 [
i Concluding Initial Decision (Oct. 27,1988) (hereinaf ter "Int. Br."). The appeal is from r the OL-3 Licensing Board's ("ASLB's) Concluding Initial Decision on Emergency Plan-ning, LBP-88-24, 28 NRC (Sept. 23,1988) (hereinaf ter "CID'). Intervenors' brief
! raises three sets of issues:
- 1. "role conflict" of schoal bus drivers and other school-related L' sues,
- 2. the Emergency Broadcast System (EBS) for Long Island, and
- 3. the "realism" and sanctions issue.
By Order of November 9,1988, the Commission took review of the last of these three issues.II In this brief, therefore, LILCO addresses only school bus drivers and tne EBS.
1/ In its Order of November 9,1988, the Commission directed that Intervenors' ap-peal from the Licensing Board's decision dismissing them from the proceeding (LBP 24, 28 NRC (1988)) "be certified to the Commission itself for decision." Order of November 9,1988, at 1. Intervenors immediately requested that the Commission clari-fy whether it intended to include issues relating to the merits of the legal authort-ty/ realism contentions within the scope of the matters certified in the November 9 Order. Letter of Karla Letsche to NRC Commissioners, November 10, 1988. LILCO re-(footnote continued)
O 2-4 I. INTRODUCTION The Appeal Board should affirm LBP-88-24 in every respect. Af ter a thorough proceeding below, the Intervenors have once again come up with dozens of alleged "er-rors" made by the Licensing Board. Now more than ever, at the end of a six-and-a-half year proceeding of unprecedented thoroughness, these claims ring hollow. The is-sues now raised on appeal have been through the process twice: role conflict has been the subject of two separate hearings: the EBS has been through one hearing and two motions for summary disposition. There is in fact little or na additional evidence that could be presented even if another hearing were held.
In Sections II and III below LILCO will address the details of the arguments made by Intervenors At the outset, however, LILCO argues that there are two overarching reasons why the Intervenors' claims of error are wrong. The first is that their claims j
depend on the spurious issue of noncooperation in an emergency. The second is that they demand not a fair hearing but a perfect one.
A. Intervenors' Principal Issue is Noncooperation Several of Intervenors' claims of error are founded on the claim that people would self-destructively refuse to cooperate in an emergency. This claim has long been known to be false.
i j (footnote continued)
) sponded that the Commission's review of the sanctions issue necessarily includes the re-alism issues from which the sanctions issue arose. See Letter of Donald P. Irwin to
- NRC Commissioners, November 16, 1988. Thus, the matter of the proper scope of the Commission's certification in its November 9 Order is pending before the Commission.
I LILCO's brief to the Commission on appeal is due December 1,1988. and includes its re-sponse to Intervonors' appeal regarding the merits of the legal authority / realism con-
- tentions, as well as the sanctions issue. Should it subsequently be determined that the Commission's certification was not intended to include the legal authority /realum is-sues LILCO requests that the Appeal Board then consider the portion of LILCO's brief to the Commission addressing those Lssues as if filed with the Appeal Board.
I
Since the Licensing Board found in 1985 that there is nothing about Long Island that makes emergency planning impossible,U the only question has been whether local and state governments could, by their own noncooperation, pevent NRC standards from being met. The entire history of this case, since Suffolk County's Motion to Ter-minate the Proceeding in 1982, has been the story of Intervenors' search for some fed-eral requirement that a utility cannot meet without State and local government help.
Increasingly, as the case went on, this effort turned to arguments that local laws pro-hibit an emergency response, to arguments that Intervenors themselves would refuse to cooperate with LILCO, and to arguments that members of the public, whom the plan is designed to help, would also not cooperate.
Thus, for example, the Intervenors' argument on school bus drivers is that i
schools would not cooperate with LERO's efforts to help them. Intervenors' EBS argu-ment is that radio stations, who have agreed to participate in the Emergency Broadcast System, would for some reason fail to do so in a Shoreham emergency.
The issue of noncooperation is a sham. That governmental entities would coop-erate is established as a matter of law,10 CFR S 50.47(c)(1); Massachusetts v. NRC,856 F.2d 378 (1st Cir.1988); CLI-86-13, 24 NRC 22 (1986), and as a matter of common knowledge.EI That the victims of an accident would cooperate in the interest of
(
2/ The Board found that there is nothing "unique about the demography, topogra-phy, access routes, or jurisdictional boundaries in the area in which Shoreham is locat-ed" and that the lengthy record "falls to revedi any basis to conclude that it would be l
Impossible to fashion and implement an effective offsite emergency plan for the l Shoreham plant." LBP-85-31, 22 NRC 410, 427 (1985). Subsequently the Commission l
noted that "our Licensing Board in its decision of April 17,1985 (LDP-85-12, 21 NRC 644), has found that an adequate emergency plan is in fact achievable if the State and j
County participate in emergency planning, as all other local and State jurisdictions have done when so called upon." CLI-85-12,21 NRC 1587,1589 (1985).
3/ As the Commission itself noted:
County Executive Cohalan and Governor Cuomo deny that (footnote continued)
e l 4
I protecting themselves and their f amilies is a matter of both common knowledge and ev-idence. See Shoreham, LBP-85-12, 21 NRC 644, 674 (1985) ("emergency consensus" dis-cussed). Intervenors' continuing efforts to portray an emergency as a brawl among competing elements cannot, at this late date, be taken seriously.
B. Intervenors Demand a Perfect Hearing NRC case law says that Intervenors are entitled to a fair hearing, not a perfect i
one. Public. Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 &
2), ALAB-459, 7 NRC 179,189 (1978). Not every error justifies an appellate remedy.
Long Island Lighting Co. (Shoreham Nuclear Power S' dion, Unit 1), ALAB-827,23 NRC (footnote continued) they ever would or could cooperate with LILCO either be-fore or even during an accident, citing both distrust of the l
utility company of implementation and Suffolkemergency LILCO's County's ordinance plan. p(rohibiting Citations omitted). We simply cannot accept these statements at face value, as we could not automatically accept earlier, similar statements by the County. (Citations omitted].
These statements by the Governor and the County Executive do not convince us that the LILCO plan is any-thing more than an interim plan which likely will be super-seded or supplemented by the State and County if Shoreham is permitted to operate at full power. To conclude other-wise would require us to assume that the governments will not seek to improve the protection available for their citi-Zens.
Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), CLI-86-13,24 NRC 22,29 n.9 (1986). Similarly:
l The County appears to assert (Motion at 21) that, in the event of a radiological accident at Shoreham, County
- personnel could not lawfully make use of the LILCO plan, j even if this was under the circumstances the best way to protect the safety of the citizens of Suffolk County. We find this assertion to be too preposterous an abrogation of the County's obligations to its citizens to be taken seriously.
CLI-86-14,24 NRC 36, 40 n.1 (1986),
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o 9, 11 (1986). LILCO submits that the Shoreham hearings come about as close to per-feet, particularly in thoroughness, as hearings can. Intervenors' attempts to prove oth-erwise are without safety significance.
Intervenors do not, by and large, claim substantial safety problems. They instead claim that the hearings were not perfect, that the procedures were not elaborate enough, that not enough issues were considered and not enough evidence heard. Inter-venors focus not on whether health or safety are protected, but rather on proceduralis-sues and details - on whether there is any crack in the Board's conduct of the hearing that will afford a foothold for appellate review.M Thus one of their arguments on the school ble driver role conflict remand, made repeatedly, is that the Licensing Board did not allow questioning on how many buses there are. Intervenors make this argument despite the fact that LILCO nas committed to buy as many buses as are necessary, that the NRC Staff and FEMA by all accounts know how to count buses, and that both the OL-3 and OL-5 Licensing Boards have recognized that counting buses is a routine mat-ter. See CID at 62; LBP-87-32,26 NRC 479,493-93 (1987).
Aside from the noncooperation issues and the red-tape issues, little or nothing is lef t of the Intervenors' claims of error. Intervenors have failed to show reversible error or any basis for concern about public health and safety.
D. SCHOOL BUS DRIVERS "Role conflict" of emergency workers has been litigated again and again in this proceeding for over six years. Intervenors submitted role conflict testimony on bus drivers in "Phase !" in 1982 and again in Phase II in 1983. See Direct Testimony of Dr.
4/ Like Intervenors' brief on appeal of the Licensing Board's 1985 PID, Intervenors' brief is "an uncritical rehearsal of virtually every claim -- large or small -- that was ad-vanced to and rejected by the Licensing Board below." ALAB-832, 23 NRC 135,143 (1986). Once again Intervenors have failed to select the "most promising issues for re-view." Id.
1 e
1 .g.
Ka'. T. Erikson and Dr. Stephen Cole on Behalf of Suffolk County Regarding Contention EP 5A (Role Conflict) at 7-8 (Oct.12,195.a. CID at 34-36. Role conflict and the reliability of school bus drivers have also been litigated before other licensing boards.
EI
- always with results similar to those reached by the Shoreham Board.
On remand, as directed by the Appeal Board, the Licensing Board turned a microscope on role conf!!ct of one particular group - school bus drivers - and explored it in detail. About as much evidence was heard on school bus drivers in 1988 as on role conflict of everyone in 1983-84.E# Much of the 1988 evidence was repetitive of the 1983-84 evidence.
Noretheless, Intervenors still challenge the Licensing Board's decision on role conflict of school tsus drivers. They make two arguments. First (in section V.B of their brief), they argue simply that the Licensing Board was wrong on the merits - that its conclusion was "contrary to the evidence." Int. Br. at 49-51. This argument is a pure factual disagreement with the ASLB on the merits, except that Intervenors give it the 5/ See Carolina Power & L!Eht Co. (Shearon Harris Nuclear Power Plant),
LBP-85-27 A, 22 NRC 207, 227-29 (1985), af f'd, CLI-87-1, 25 NRC 1 (1987); Philadelphia
. Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-85-14, 21 NRC 1219, 1319-26 (1985); Consolidated Edison Co. (Indian Point. Unit No. 2), LBP-83-68,18 NRC 811, 959 (1983), reviewed, CLI-85-6,21 NRC 1043 M985); Cincinnati Gas & Electric Co.
(William H. Zimmer Nuclear Power Station, Jnit'1), LBP-82-47,15 N'tC 1538 (1982),
Lemajnd_e_d, ALAB-727,17 NRC 760, 772 (1983); Metropolitan Edison Co. (Three Mile 1s-land Nuclear Station, Unit No.1), LBP-81-59,14 NRC 1211,1486-89,1629-41 (1981),
ag'd in principal part, CLT-83-22,18 NRC 299 (.1983); Pacific Gas & Elec. Coa (Diablo Canyon Nuclear Power Plant Units 1 & 2), LBP-82-70,16 NRC 756,767-68 (1982), aff'd, CLl-84-13,20 NRC 267 (1984). See also Detroit Edison Co. (Enrico Fe-- .:. Power Plant, Unit 2), DD-84-11,19 NRC 1108,1116-18 (1984).
6/ On remand, the ASLB held six days of hearings on this issue. LIL(- resented four witnesses who testified for four days. Suffolk County presented 11 witnesses who testified on two days. By contrast, the original hearings on role conflict of a!! the groups of people covered by the contention in 1983 and 1984 were held on seven hearing days. In 1983 Suffolk County's prefiled written testimony, covering all the groups ad-dressed by the contention, consisted of 101 pages (not including attachments). Da re-mand the County's written testimony covering school bus drivers alone was 140 pages, exclusive of attachments. The ASLB's decision on this issue was 30 pages. CID at 34-63.
o following twist: 1: .. . that the Appeal Board (in ALAB-832) determined the out-come of the hearing in advance by assigning greater weight to some of the evidence.
t I Intervenors'second argument (in parts V.C and V.D of their brief) goes to the i
scope of the remand proceeding. Ints Br..at 51-58. They argue that the ASLB either should have f rozen LILCO's plan, forbidden improvements, and forced LILCO to litigate an earlier version of the plan (part V.C of Intervenors' brief) or, barring that, should have opened the proceeding wide to let intervenors litigate any issue about schools that
\
they wanted (part V.D).
LILCO's response to those two arguments Ls also in two parts. First,it addresses (in section A below) Intervenors' argument that the Licensing Board weighed the evi-donce wrong. Second, it shows (in section B) that ALAB-832 conferred jurisdiction on the Licensing Board to hear testimony only about the adequacy of the number of senool bus drivers and that the Licensing Board conducted the proceeding, properly, in accor-dance with that limited jurisdiction.
A. The ASLB Correctly Ruled that Role Conflict of School Bus Drivers Would Not Prevent the Safe Evacuation of Schooli Intervenors argue that the Licensing Board incorrectly we!ghed the evidence.
They argue that it ignored ALAB-832, which they contend instructed the Licensing Board to g% /,,e Interver' ors' surveys greater weight and therefore to reach a different conclusion. Int. Br. at (9-;0.
These ar .ao a a incorrect. F' ~st, they mLsinterpret A LAB-832. Second, they ignore the ovei.. .elming evidence presented by LILCO that role conflict would not prevent the safe evacuation of schools.
- 1. The Appral_ Board Did Not Preludze the Evidence This romand proceeding exists because of ALAB-832, in which the Appeal Board remanded the issue of role conflict of school bus drivers. Long Island Lighting Coa
{
(Shoreham Nuclear Power Station, Unit 1), ALAB-832. 23 NRC 135, 154 (1986).
b
-g-
. O ALAB-832 directed the Licensing Board to reconsider its earlier findings in light of a i
survey of firamen (previously excluded) and any other evidence adduced on remand. M.
The Appeal Board did not direct the Licensing Board to reach a particular result or give evidence particular weight. If the Appeal Board had intended a certain out-come, there would have been no need for a ne v hearing and no need to consider
.idence; the Appeal Board would have reversed the Licensing Board outright and held for Intervenors. The Appeal Board did not do so because in its view the record below was not sufficiently developed. M. Ed ;ne Appeal Board could not have determined what weight a certain yece of evidence deserved, comparea to other evidence, because
- 1. did not kn: n hat "other" edence m!ght ce adduced on remand. The trier of f act in the one that .'u t weigh the evidence and determine, based on a preponderance of that evidence, what rorJiusions it should reach.
The Appeal Board decisions cited by Intervenors in thel brief do not support their argument that their surveys deserve more weight than the Licensing Board gave them. See Int. Br. at 49, citir.g Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 518 (1986), and Cincinnati Gas & Electric Co.
(William H. Zimmer Nuclear Power Station, Unit No.1), ALAB-727,17 NRC 760 (1983).
l.; aoth cases, as in Shoreham, the licensi;:s board that heard the evidence firsthand was persuaded that the historical record showir:g an absence of role abandonment ou -
weighed statements by firemen or bus drivers that they would "put their f amilies first."
Limerick, LBP-85-14,21 NRC 1219; Zimmer. LBP-82-47,15 NRC at 1599178. And in both cases the Appeal Board rul2d that opinion polls "raise a legitimate (or serious) question" that had to be considered afreah. Limerick,23 NRC at 518-19, ALAB-857,25 NRC 7.12 (1987); Zimmer,17 NRC at 772.2 Never has the Appeal Board ruled that the S
I/ The Licensing Board's 1985 .adin; ca the "shaclow phenomenon" included the finctni th.it opinien polls are not renable predictors of emergeracy behavior. That dect-(footnote continued)
i b
O opinion evidence carries the day; but it has ruled that survey results raise a question such that the appl! cant has the burden of producing affirmative evidance of an ade-quate number of available drivers. Limerick,23 NRC at $18. As shown below, LILCO j has produced the "alfirmative evidence" that the Appeal Board called for.N If there is any insight to be gained from Suffolk County's polls it is that people l will always say they "put their f ami!!cs first." For example, in Suffolk County's poll the firemen were asked to agree or disagree with the statement "(1]n the event of a nucle-ar emergency at Shoreham, a volunteer fireman must place duty to the fire department over duty to family." Intervenors Findings at 41159. In other words, if people are asked, "which do you 16ve more, your f amily or your job?," of course they will answer "family."U (footnote continued) sion was affirmed by the Appeal Board without discussion in ALAB-832 and has since become final agency action. Commission Order of September 19, 1986, slip op. at 1-2 (holding that only three issues merited Commission review). Were the Licensing Board or Appeal Board to rule now that opinion polls are valuable predictors they would be contrary to the law of the case.
It may be that the Appeal Board sees a distinction between polls of the general public (as for the "shadow phenomenon" issue) and polls of discrete groups of workers.
if so, LILCO submits there is no evidentiary basis for such a distine!!on, either in the Shoreham case or in any other NRC docket that LILCO is aware of.
F in both Limerick and Shoreham the utilities chose to supply bus drivers of their own. The issue was no' ultimately resolved in Mmm__et because the Zimmer plant was abandoned.
W The unf avorable reaction te nucleer power and it varable reaction to one's f amily
- hat intervenors' polls measure is found whereve? such polls are taken. For example, one of Suffolk County's early witnesses, Dr. Johnson, took a poll of school teachers in California and found that nearly a third of them said that they would not assist in an emergency evacuation of schools. Crocker otJJ., f f. Tr.19,431, at 14. Similarly, large amounts of role conflict are pratioted by Suffolk County's witness Dr. Cole at Seabrook.
See written "Testimony of Donald J. Zeigler, Jame.s H. Johnson Jr., and Stephen Col (
. . . ." September 14, 1987, in Public Servlee.fo_mpany of, New Hampshire (Seabrook Station, Units 1 and 2), Doc. No. 50-443-444-01., at 36-54.
10-
[ The use of polls to predict emergency response is not simply useless; it is harm- ,
~
ful. See Tr.1087 (Mileti) (it's dangerous to use people's speculations about behavior to l predict behavior); Crocker et al., ff. Tr.19,431, at 46-47. Polls suggest that there will ;
be an undersupply of emergency response personnel; what happens in emergencies is ;
i P
the opposite - there is of ten an oversupply of personnel, and the problem is managing the extra people. Crocker et al., ff. Tr.19,431, at 46-47.d/
- In short, Interverors' argument that the Appeal Board ordered polls to carry the day cannot be accepted.
- 2. The Licensing Board's Findings Were Based on a Preponderance of the Evidence The Licensing Board was obligated to rule for LILCO if it found that the prepon-deratice of the evidence favored LILCO. As the Licensing Board's decision and the record below show, the evidence does overwhelmingly support the conclusion that role J
) conflict of school bus drivers would not prevent the safe evacuation of schools. Never-i theless, Intervenors ask the Appeal Board to ' 1 view tha evidence de novo, without def-i J
erence to the ASLB's findings, and weigh it differently. Nothing about the ASLB's deci- ;
j sion warrants a _de novo review. But if the Appeal Board should decide to weigh the :
J ;
] evidence anew,it would have to reach the same conclusion.
! a. Intervenors Presented Essentially Nothing (
New on the Predictive Valid!ty of Polls l
l On remand the Licensing Board did, as the Appeal Board had directed, thoroughly !
l !
l consider the opinion poll evidence presented by Suffolk County. This is clear from the i
i 1
M/ See also Tr. 20,180 (Kelly) (at Mississauga too many doctors and nurses reported to the evacuating hospital and too few to the receiving hospital); Crocker et al., (f. Tr.
19,431, at 13-14 (about twice as many people show up to evacuate nursing homes and ,
hospitals cs there are people who need to be evacuated); Tr.17,666 (Linnemann)(recep- :
. tion centers hearing)(people in the field of radiation welcomed the opportunity to help at Three Mile Island; the problem wa':n't that there weren't enough people, but that i there wasn't an organization into which to fit their talents and use them expeditiously).
l r
k j
i l <
o l-detailed, reasoned discussion in the CID. CID at 56-63. But on the fundamental scien-tific question whether a poll can predict what people will actually do in a radiological emergency at some time in the future, Intervenors presented nothing new to persuade the Board to reverse itself.
The basic case on whether opinion polls can predict behavior in emergencies, as distinguished from consumer or voter behavior, was made in 1983 and 1984. LILCO's witnesses reviewed thoroughly the literature on this subject, including a tamous study <
by LaPlerre showing how attitudes and predicted t'havior can differ from actual be-havior. Cordaro et al., it. Tr.1470, at 69-76. These witnesses also explained the "f ac-tors that influence human response to emergencies." Cordaro et al., ff. Tr. 831, at 86. l They explained that emergency behavior is "situationally" determined by complex fac-j tors that are not well predicted by polls. See, eg, id. 86-87, 95. Intervenors did not j
effectively confront this evidence in 1983-84, and they did not do so again in 1938.
l Intervenors did produce two new witnesses in 1988 Professors Barton and Turner, to opine that polls can predict behavior. But they offered no empirical data for this proposition and little in the way of scientific literature. Their discussion of the
! scientific evidence was largely a'1 attempt to rebut LILCO's 1983 testimony, it did not
- address the LaPlerre or other studies on the predictive validity of opinion polls.
In short, on the basic scientific question of whether polls can predict emergency !
t
- behavior, Intervenors on remand f ailed to produce anything that would throw any doubt i 1
{
on the many NRC decisions that have rejected or discounted the results of opinion ,
' I polls: >
- 1981 Metropolitan Edison Surveys of school
- CO2 (Three Mile Island superintendents and l
. Nuclear Station, Unit others denied eviden- !
I No.1), LBP-81-59,11 tiary weight because !
NRC 1211,1632-36 (1981), of methodological aff'd in principal part, flaws [
, CLI-83-22,18 NRC 299 (1983) ,
1 l
j 4
w- -.- +. -.--er, , . -n, ,-- e r
1 6
1982 Pacific Gas and Electric Sociological survey G (Diablo Canyon Nuclear of emergency workers Power Plant, Units 1 and unnecessary 2), LBP-82-70,16 N RC 756, 805 1 46 (1982),
afI'd, CLI-84-13, 20 NRC 267 (1984) -
1982 Cincinnatl Gas & Elec. Reported opinionsM/
Q (William H. Zimmer of lifesquad members Nuclear Power Station, as to whether they Unit 1), LBP-88-47,15 would respond found NRC 1538,1597-99 (1982), not dispositive remanded, ALAB-727,17 NRC 760,772 (1983) 1985 Long Island 1.ighting Board rejects use of Co. (Shorcham Nuclear polls for quantitative Power Station, Unit 1), purposes in predicting LBP-85-12, 21 NRC 644, evacuation by the public 6S4 (1985), afI'd in ("shadow phenomenon") -
part and remanded in part on other grounds, ALAB-832,23 NRC 135 (1986) 1 1985 Long Island Light _ing Opinion polls of role j Q (Shoreham Nuclear conflict are very poor Power Station, Unit 1), predictors of behavict LBP-85-12, 21 NRC 644, in an emergency i
666, 676 (1985), remanded,
, ALAB-832,23 NRC 135, 153-54 (1986) i 1986 Carolina Power & Light Poll of whether people
% (Shearon Harris would warn their Nuclear Power Plant), neighbors was not very LBP-86-11,23 NRC 294, reliable 389 (1986) 1987 Long Island Lichting Board is still con-Q (Shoreham Nuclear vinced that Suffolk Power Station Unit 1), County's polling LBP-88-13,27 NRC 509, techniques (on shadow 523 (1988), af firmed phenomenon again) tell in parrand remanded, only what the situation ALAB-905,28 NRC is now, not wh'.t it (November 29,1988) will be at some undeter-U/ There were apparently no systematic opinion surveys in the Zimmer case,
r.
13-mined future date.
1988 Long Island Lighting Board finds again (with
% (Shoreham Nuclear respect to role conflict)
Power St.1,lon, Unit 1), that poll evidence must LBP-88-24,28 NRC , yield before historical slip op, at 58-59 evidence of actual (Sept. 23,1988), appeal behavior in emergencies pending 1988 Long Island Lighting Surveys are of little
% (Shoreham Nuclear value in predicting Power Station, Unit 1), the percentage of the ALAL 905,28 NRC , population that will, slip op. at 25 n.42 in fact, seek monitoring (Nov. 29,1988) (citing LBP-88-13,27 NRC at 523)
LILCO, on the other hand, did bolster its case that polls do not have predictive validity. LILCO presented a psychologist, Dr. Lindell, who had not testified in 1983-84.
Among other things, Dr. Lindell testified (along with Dr. M11eti) to an obs *vation about the difference between behavioral intentions and behavior from Gordon WocJ's Fundamentals of Psychological Research. Crocker et al., ff. Tr.19,431, at 42. Dr.
Lindell also testified about a hitherto unexamined (in this proceeding) line of research on "bystander intervention." Id. at 18-22. (Dr. Lindell had also presented evidence on the use and usefulness of polls the pre.lous summer in the reception centers remand hearing. See LILCO Ex.1 (Crocker et al.) at 14,15,19: Tr.17,772-73 (Lindell).) Also, both in 1983 and 1988 Dr. Milett testified about an extremely elaborate study he had done of how people said they would react to credible earthquake warnings. When a "near-prediction" of an marthquake later occurred, the public reaction was completely different from what Dr. Milett had predicted. Cordaro et al., ff. Tr.1470, at 81; 're.
1103-05 (Mileti): Crocker et al.. !f. Tr.19,431. at 40-42.
In short, Intervenors' argument that their opinion polls are dispositive cannot be squared with ALAB-832, with ot. sse law, or with the record as a whole.
O
- b. The Board Weighed the Evidence Using the Soundest of Scientifle Principles Leaving aside the academic literature on whether polls can predict emergency behavior (LaPlerre and others), the reason the Licensing Doard, for the fourth time, found Suffolk County's opinion polls unpersuasive was simply the Scientific Method.
Simply stated, the Board's reasoning was this; if the County's theory of "role conf!!ct" were correct, one would expect to see examples of it in real emergencies. This is how any scientist would go about testing a hypothesis, and a hypothesis is all the County's case is without empirical evidence. See CID at 58-60.
As the Board found, there is no substantial history of role abandonment. CID at
- 58. LILCO's evidence demonstrated "that previous emergency situations have not occa-stoned the role abandonment of bus drivers" and that "response organizations simply did not lose their effectiveness because of role conflict / role abandonment." M.at58.
LILCO's new evidence on remand included (1) a review of 300 FEMA Disasttr Response Questiornaires compiled since 1986 (Crocker et al., ff. Tr.19,431, at 32-33; Tr.19,964-65 (Kelly)); (2) phone surveys of bus drivers and emergency managers to find out if bus a drivers had abandoned their jobs in past emergencies (Crocker et al., ff. Tr.19,431, at 27-30); (3) a review of the experience of radiological emergencies, including Hiroshima, Windscale, Three Mile Island, Ginna, and Chernobyl (see, _e&, id, at 33-35); and (4) a re-view of academic literature on role conflict since the 1983-84 hearing (M. at 9-14).
LILCO also established through discovery that Intervenors knew of no cases of role abandonment in emergencies.
' 12/ Board Memorandum and Order (Ruling on LILCO Motion to Compel Answers to Certain Interrogatories and Requests for Production of Documents) at 2-3 (Apr.14, 1988); Response of the State of New York to LILCO's Second Set of Requests for Admis-sions Regarding Role Conflict of School Bus Drivers (Mar. 4, ISS8)at 2-3; Response of Suffolk County, the State of New York, and the Town of Southampton to LILCO's First Set of Requests for Admissions Regarding the Remand Issue of Role Conflict" of School Bus Drivers (Feb.1,1983).
4 If Intervenors' theory had any scientific validity, the historical evidence should prove it. It does not.
- c. The Board Did Not ignore
!_ntervenors' Other Evidence The "substantial other" evidence Intervonors refer to consists of "surveys" con-ducted by the County's school administrator witnesses. Int. Br. at 50, citing Brodsky e1 _
aj., ff. Tr. 20,259, at 46-4o, and Tr. 20,407 (Rossi). Only ong survey conducted by the school witness is discussed in the County'S testimony. Since this evidence is an opinion poll of some sort, it is at least as unreliable a predictor as other polls. But it is unpersuasive for other reasons as well. The survey data were not put into evidence, and the County witness said that he dlJ not recall the results in much detail. Tr. 20,407 (Rossi). Moreover, this survey wn the same one the witness testified about in 1984.
See Tr.11,109 (Rossi). rinally, it was conducted of bus drivers who serviced Middle Country School District schools, all of which are outside the 10-mile EPZ. See Brodsky et al., ff. Tr. 20,259, at 47-48; LILCO Motion to Strike Tastimony of Brodsky, et al.
(April 20,1988), at 7. None of these drivers would be used to drive buses to evacuate
! schools inside the EPZ. Crocker et al., ff. Tr.19,431. Attachment L.
The fact is that anyone who seriously considered Suffolk County's testimony would conclude that role conflict is a non-issue. Suffolk County's school administrator d
witnesses emphasized how responsible, carefully selected, and well-trained their regu-lar school bus -Jrivers are.N The drivers are assigned to drive the same routes every 13/ For e': ample the Director of Transportation for Middle Country Central School District pen onally interviews and approves each driver. Brodsky et al., it. Tr. 20,259, at 8. He looks for the "composure and capability 'o gain the confidence and respect of children and parents." M. at 9. Among other requirements, each bus driver for that l District must submit three letters of reference and undergo fingerprinting to verify that she does not have a criminal record. W. at 9. Bus drivers for the District then un-dergo 40-50 hours of instruction. Ld.t see also M. at 15 (Riverhead Central School Dis-trict),18 (Longwood Central School District),20 (Superintendent of East Meadow Union (footnote continued)
day so they "can learn who the children are on their bus, and hopefully develop a first name relationship with the kids." Tr. 20,353 (Smith). One witness indicated that the school district strives for a "feeling of f amily on that bus." Tr. 20,354 (Suprina). The drivers do a "terrific job." Tr. 20,354 (Doherty), "The rapport that drivers establish with children going to senool on an everyday basis is sound and it is strong." Tr. 20,403 (Suprina).N In short, based upon the preponderance of all the evidence, not just Intervenors' polls, the Licensing Board rightly held that role conflict would not prevent the safe evacuation of schools and that LILCO does not need to supply backup drivers to the regular school bus drivers. CID at 56.
B. The Licensing Board Conducted the Proceeding According to the Appeal Board's Romand Order The rest of Intervenors' argument on school bus drivers is the following: (1) ab-sent a motion to reopen the record, the Licensing Board should have frozen LILCO's plan to the version already litigated or, (2) barring that, the Board should have allowed Intervenors to litigate any issues about schools that they wanted to raise.
(footnote continued)
Free School District personally approves drivers); 21, 22 (Superintendent of Mt. Sinal School District personally approves drivers; Transportation Director personally inter-views every driver): 23 26 (extensive supervised on-th6-job training for all drivers, in-cluding semiannual refresher courses and additional meetings). Tr. 20,344-50 (Doherty, Koenig, Rossi), 20,352-53 (Rossi). As a result, the drivers take their jobs seriously, or else they are removed ficm duty. Tr. 20,353 (Smith).
W Past concern about the reliability of bus drivers may have been prompted by the dif ferent training and duties of bus drivers as compared witn. for example, school teachers. See Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),
ALAB-836, 23 NRC 479, 516 (1986). However justified that distinction may have been for plans that relied, for example, on high school students to drive, see Carolina Power
& Light Co. (Shearon Harris Nuclear Power Plant), LBP-85-27A 22 NRC 207, 227-29 (1985), af('d, CLI-87-21, 25 NRC 1 (1937), it is not justified on Long Island, where Suffolk County's witnesses proved that schoo! bus drivers are superbly quallfled, trained, and committed.
b i e
l
. l i
The background to this argument is recited in the Board's decision. CID at 34-41.
Af ter the remand of ALAB-832 in March 1986, LILCO decided to eliminate concern about "rcle conflict" once and for all by simply providing extra bus drivers. Role con- f 4 :
! f!!ct of LERO workers had already been resolved in LILCO's favor,21 NRC at 671-79:
therefore LILCO decided to recruit and train a back-up LERO bus driver for every re,. -
l ular school bus driver. Even if one agreed with Intervenors that role conflict might I a
occur, then, there would still be enough bus drivers to fill the regular bus driver roles. )
t
!!aving decided to provide LERO school bus drivers LILCO went a step further and de-
! cided to recruit enough drivers to permit a single-wave evacuation of all school chil- l 1
dren in the EPZ. l
! 1. The Record was Already Open -
l Intervenors argue that LILCO should have been obligated to reopen 'he record before presenting evidence of its propost.1 to supply additional bus drivers. As a thresh- j j old matter, Intervenors' argument that LILCO was required to reopen the record was l 1
not timely raised. Intervenors did not attempt to raise it with the Licensing Board until December 16, almost two months af ter LILCO had first described its proposal to pro- l vide additional bus drivers.1EI The Board properly rejected their December 16 motion f i I j as untimely. Intervenors claim that the Board's ruling "had no basis" because their [
I 1 December 16 motion was filed "two weeks before the Board's December 30 Order [
denying LILCO's summary disposition motion." Int. Br. at 52 n.91. But the fact that 1
i 15/ LILCO made its proposal to provide LERO school bus drivers in a summary dispo- I sition motion flied Octuber 22. 1937. On November 12, 1987, Intervenors argued for s "summary rejection" of LILCO's motion although they did not seek that reitef in the ,
pleading because they were answMng LILCO's motion the next day. Suffolk County, t State of New York, and Town of Southampton Motion for Summary Rejection of Sum-mary Disposition and for Expedited Consideration (Nov. 12,1987) at 4,9. On November 13 Intervenors answered LILCO's motion. Then, over a month later on December 16, Interve:ars claimed that LILCO should have been required to reopen the record. See Governments' Motion for Summary Rejection of New LILCO Proposal for Implementing Evacuation of School Children (Dec. 16, 1937).
i
18-
! Intervenors by chance teat the Board's decision is not dispositive of whether their mo-tion was timelyiin a proceeding that lasted less than eight months from the summary disposition motion until the end of the hearing, Intervenors were almost two months late raising their objection.
Aside from its untimeliness, Intervenors' argument is wrong as a matter of law.
The argument is that LILCO should have been required to reopen the record. But the record was already open; this was a remand. In remanding this issue for "further explo-ration," the Appeal Board said that "(a]Il parties w.ll be free to adduce additional evi-dence" on the issuc of whether there is a sufficient number of school bus drivers.
ALAB-832, 23 NRC at 154. LILCO's evidence was, in part, that it would supply addi-tional school bus drivers.
It is true that this evidence, which involved a burdensoute commitment on LILCO's part, required changit^.g the emergency plan. Indeed, in Limerlek the Appeal Board ordered the licensee to incorporate its provisions for supplying backup bus driv-ers in its emergency plan. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB 857, 25 NRC 7,13-14 (1987). But that is not dispositive of any-thing. There has never been, in this proceeding or any other, a ban on improving an emergency plan during the course of a proceeding, despite the Intervenors' repeated at-tempts to create one.Y As the Board said in 1983,"the Board holds that the emergen-cy plan to be litigated in this proceeding will be the most current emergency plan of the applicant." Memorandum and Order Regardirg Motion for Change in Schedule, M/ Intervenors have repeatedly argued that L!LCO should be bound to a particular version of its emergency plan so that Intervenors can litigate a stationary target. See, e.g, Suffolk County Motion for Change in Schedule w!th Respect to Contentions 65, 23.D and 23.H and for Board Orders Clarifying Whleh Revision of the LILCO Plan is to Be Litigated (Nov. 9,1983), denied in pertinent part in Memoranditm and Order Re-garding Motion for Change in Schedule. Request for Conference Call, and Motion to Compel Discovery (Nov. 14,1983) (unpublished). See also, for example Tr.19,356 (Judge Gleason)(revisions to the plan are going to keep occurring).
Request for Conference Call, and Motion to Compel Discovery at 3 (Nov.14,1983)
(unpublished).
Intervenors attempt to make much of their characterization of LILCO's proposal as a "new" plan. They argue that the proposal was a "fundamentally new school evacu-ation scheme" that "embrace (s} an entirely new approach to school evacuations." Int.
Dr. 47,48. But it is not dispositive whether one characterizes LILCO's commitment to provide drivers as a "new plan" or a modification. The f acts, as opposed to the charac-terization, are not in dispute. LILCO did improve the plan. CID at 63. liowever, the plan originally was to evacuate children by putting them on school buses and driving them out of the EP2. The plan as revised by LILCO in the f all of 1987 was to put school children on school buses and drive them out of the EPZ. The revised plan differed in that the number of bus drivers increased, which bears on the issae romanded by the Ap-peal Board, and that multiple waves were no longer necessary, which does not.
- 2. The Remanded Issue Was the l "Number of School Bus Drivers" liaving properly let LILCO present evidence that it would furnish additional drivers should the Board have then given Intervenors carte blanche to litigate any and all issues related to schools? The answer is no. Indeed the Board lacked jurisdiction to r
do so.
The Board's jurisdiction was limited to the issue remanded by the Appeal Board, which was whether "a sufficient number of school bus drivers can be relied upon":
On the record now before us, we similarly cannot make a findmg that a suf!!cient number of school bus drivers can be '
relied upon to perform their duties if an accident occurred at ,
Shoreham. Therefore, we are remanding this matter to the L Licensirg Board for further exploration. All parties will be I free to adduce additional evidence on the issue: at minimum, !
the Licensing Board is to accept the testimony related to the !
survey of volunteer firemen. Upon review of the evidence presented at the reopened hearing, the Licensirig Board should reconsider its prior findings and conclusions regarding the po-tential for role conflict among school bus drivers.
ALAB-332,23 NRC at 154 (footnote omitted), cited in Memorandum and Order (Ruling on Applicant's Motion of October 22,1987 for Sumrnary Disposition of Contention 25.C i
Role Conflict of School Bus Drivers) at 1 (Dec. 30,1987). When a licc%ing board re- !
ceives a esse back on romand it has jurisdiction over orly the issues remanded to it. ,
Cagl(na Power & Light Co. (Shearon flarris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 127,124 (1979); Portland General Electric Co. (Trojan Nuclear Plant), [
l ALAB-;,34,9 NRC 287, 289-90 n.6 (1979). ;
There can be no question that the remanded issue was limited to the number of bus drivers. The remand was of Contention 25.C, which involved postulated "role con- ;
filet" of school bus drimrs; the contention is that school bus drivers will not show up j for duty, or will show up late, because they will care for their families first.O Inter- f venors, particularly sophisticated and well-funded intervenors like these, should be bound by the terms of their contention, because the applicant is entitled to notice of r what it has to litilate.EI The reason for the remand was the Board's failure to admit ,
H/ The operative words of the contention are the following: l l
[ A] substantial number of school bus drivers are likely to ;
attend to the safety of their own families before they report !
(if they report at all) to perform the bus driving duties which l LILCO assumes will be performed. Role conflict of school i bus drivers will mean that neither school buses nor school !
bus drivers will be available to implement the LILCO Plan. [
21 NRC at 982. The contention goes on to say that LILCO will therefore "be incapable of implementing' early dismissal and evacuation of schools. Ld.
M/ In the reception centers litigation in tnLe proceeding the Appeal Board qualified l the requirement that Intervenors must serve notice by means of contentions of what [
they seek to lit; gate. First, in ALAB-832 the Appeal Board said that the Licensing i Board should, especially given the "concerns expressed by the intervenors from the very outset." have taken the issue before it to be "whether there were any f actors . . .
that might make {the Nassau Coliseum) unsuitable to serve as the sole reception cen-ter." ALAB-832, 23 NRC 135,162 (1986). Then, in ALAB-855, the Appeal Board de-ferred to the Licensing Board in adopting a broad rather than a narrow reading of Con-tention 24.0. ALAB-855, 24 NRC 792, 796-97 (1986), Commission review declined, Memorandum for Board and Parties f rom Secretary of the Commission (June 23,1987).
(footnote continued)
.21-an opinion poll of volunteer firemen, that had been offered to show that bus drivers would not do their jots in an emergency.
Similarly, when the Appeal Board remanded in the Limerick case the "very limit-ed issue" of the number of school bus drivers willing and able to serve, it did not intend (footnote continued) .
In the latter decision (ALAB-855) the Appeal Board apparently distinguished its Limerick decisions PhiladelDhla Elect _ rig _Qo a (Limerick Generating Station. Units 1 and 2), ALAB-836, 23 NRC 479, 504-05 (1986), and ALAB-819, 22 NRC 681, 707-09 (1985).
See ALAB-855,24 NRC 792,797 n.20. The Appeal Board said that it takes a somewhat closer look at a Licensing Board's determinations when called us ,a to decide when an intervenor's conteetions have been construed too narrowly.
Nevertheless, licensing boards both before and af ter ALAB-855 have held that an intervenor "is bound by the literal terms of its own contention," including in cases where the licensing board has excluded issues. See Carolina Power & Light Co.
(Shearon Harris Nuclear Power Plant), ALAB-843,24 NRC 200,208 (1986)(issue did not deal with adequacy of testing or test data, but only concerned whether qualification tests "represent actual plant conditions or comparable conditions")t Carolina Power &
Light Co. (Shearon Harris Nuclear Power Plant), ALAB 852, 24 NRC 532, 545 (1986)
(follure of strens was riot part of contention alleging that sirens were inadequate for nighttime summer conditions); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nucleaa Power Station), ALAB-876, 26 NRC 277, 284 (1987), holding that two conten-tions seeking consideration of the environmental risks of a severe reactor accident as complicated by a reracked spent fuel pool did not encompass a different accident sce-natio): Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2) LBP 6,27 NRC 245,234 (1988)(contention addressed to blockago of coolant flow by accumu-lation of aquatic trganisms and other foreign matter did not 15clude issue of equipment breakage attributable to corrosion caused by accumulation of bacterial debris and sedi-mentation); Public 3ervice Co. of Ngw Hampshire (Seabrook Station, Unit I and 2),
ALAB-899, 28 NRC 33, 95, 99 (1988) (affirming that a contention about coolant flow blockage from the bulMup of macrobiological organisms did not encompass microbiolog-ically induced corrosioc); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nu-clear Power Station) Lho-80-25,28 NRC (Sept. 27,1988) (scope of a contention is determined by its literal terms coupled with its stated bases) (holding that environ-mental qualification issues did not fit within contention on the proper temperature limit for the spent fuel pool). See also \ LAB-855:
[T]he determination of a trial tribunal that an issue has been squarely presented to it is entitled to substantial defer-ence and should be overturned only when it lacks a rational foundation.
ALAB-855, 24 NRC 792, 795 (1986), Commission review declined, 5!emorandum for Board and Parties from Secretary of the Commission (June 23,1987).
i* i
. 6 i
"the overall logistics of driver mobilization" to be an issue. Philadelphia Elec. Co. ;
, (Limerick Generating Station, Units 1 & 2), ALAB-857,25 NRC 7,11 (1987). Likewise !
the issue of whether there were sufficient buses exceeded the scope of the remand Ld. t
- i l' It is true that Intervenors relent!cssly tried to expand the scope of the proceed-ing N and that the Board allowed them extraordinary leeway to explore LILCO's pro-posal to supply additional drivers. See section li.3.h below. It is also true that LILCO t
responded to intervenor discovery requests on extraneous issues !!ke driver training, 4
l noting its objection at the time. 0 And it is true that LILCO put into evidence a de- .
1 scription of how the LERO drivers would operate in an emergency and the relevant
. procedures from the LERO plan. See Crocker g.t aj., ff. Tr.19,431, at 53-57. Finally, it 1
is true that the supplying of LERC school bus drivers affected some matters earlier liti- f gated.III f i
12/ The Licensing Board defined the issue to be heard in its denial of LILCO's sum-mary disposition motion and in its ruling on LILCO's motion in limine. See Memoran- .
dum and Order (Ruling on LILCO Motion In Limino and Motion to Set Schedules) !'
23,1988) at 3; see also LILCO's Motion in Limine and Motion to Set a Hearing (February (January 25,1988).
Schedule Intervenors nevertheless submitted written testimony that :
went beyond the scope of the issue. See May 9 Order at 3; see also ALAB-832,23 NRC !
at 143; PID at 677, 781-809,866; May 12 Order at 3. i During the hearing, Suffolk County tried unsuccessfully to reargue its ob,fections [
to LILCO's motion to strike. Tr.19,572-611,19,616 (Judge Gleason). Intervenors also i
~
tried to crms-examine LILCO witnesses on the excluded subjects (Tr. 19,646, 19,712-13, 19,739-40, 19,744-45, 20.030-31, 20,122, 20,129), and Suffolk County's witnesses tried to -
test!P/ on matters the County knew were outside the scope. Tr. 20,313, 20,315, 20,416- l
- 19. See also Tr. 20,054 (G!eason) ("! have to say agairs, Mr. Miller, that the issue that was remanded to the parties and the Board here is the impact of role conflict and the j number of bus drivers available in an evacuation. . . . You have got to keep your ques- i tions confined to LILCO's proposal as it relates to producing an adequate number of !
school bas drivers.") ;
29/ Sce, g&, LILCO's Answer to Suffolk County's Motion to Compel of January 25, i
1988, at C n 9 (Jan. 30,1988)(LILCO had provided documents about buses, recruitment, and job-specific training for bus drivers). ;
21/ For example, supplying LERO drivers mooted one of the issues that had been de-cided against LILCO and lett to be corrected as a Staff confirmation item. That item (footnote continued)
But if the !!oard did let in evidence outside the remanded issue, it did so either in the interest of giving Intervenors a chance to make a case or because no one objected.
See, ea g,, Tr. 20,070 (Judge Gleason). No such evidence could possibly expand the Board's jurisdiction to issues other than the adequacy of the number of bus drivers. If there was any error in over-admitting evidence, it was harmless.
The f act is that the Licensing Board did err, but not in the say Intervenors claim. The Board erred in not granting LILCO's motion for summary disposition in the fall of 1987. Since the remanded issue was the adequacy of the number of bus drivers, LILCO's commitment to supply them should have nded the matter. Instead, the Board allowed Intervenors extensive discovery, extensive time, and extensive hearings to try i
and show some flaw in LILCO's plan. They f ailed to do so.
- 3. The issues Raised in Intervenors' Brief Were Litigated in Fact, Were Not Raised Below, or Were Outside the Scope of the Remanded Issue i finally, in footnote 39 of part V.B of their brief anc .n parts V.C and V.D. Inter-venors argue that the Licensing Board ignored a "plethora" of issues (Int. Br. at 56) and a "wide rrray of f acts and problems" (id.). They ilst no fewer than 17 - the 14 listed summarily on pages 57-58 of the brief plus early dismissal, the noncooperation of school districts, and the number of buses.W In f act, the Licensing Board's handling of each of i
d (footnote continued) was the matter of evacuation time estimates for schools. See LBP-85-31,22 NRC 410, 430 (1985). It was decided under contentions other than Contention 25 and was by no stretch of the imagination ine'aded within the scope of the remanded role conflict Luue.
2_2/ Intervenors may be arguing that they should be allowed to litigate two of the 12 "defects of a lesser magnitude" in the LERO Plan that the Licensing Board found in its 1985 Concluding Partial Initial Decision. Long Island Lizhting Co, (Shoreham Nuclear Power Station, Unit 1), LBP-85-31, 22 NRC 410, 429-31 (1985). But, as LILCO argued in its Motion In Limine, these defects are "staf f cor.firmation items" that can be, and have been, corrected without further hearings. See LILCO's Motion in Limine and Motion to Set a Hearing Schedule (Jan. 25, 1988).
-2(
these issues was correct.
- a. R{Lerutting Drivers and Calculating School Populations Two of the "additional issues" raised by Intervenors are (1) recruiting and training of LERO drivers and (2) LILCO's method of calculating the number of drivers needed to evacuate schools. The ASLB did not ignore these issues. It heard all t'le evi-dence presented and thoroughly discussed it in the CID. See CID at 52,54,55. It made specific findings on both issues. [da at 60-61.
As to training and recruiting. Intervenors contend that the Licensing Board ig-nored testimony that LILCO failed to demonstrate that it could recruit and train enough drivers. Int. Br. at 57. The Board found, however, that LILCO's testimony proved it had more than enough trained bus drivers. CID at 60-61. In f act LILCO's testimony shows that, at that time. 558 of the 613 drivers LILCO planned to recruit hac' already passed their road tests, and 486 of them already had the necessary licenses. Tr.
19,704-05 Mrocker). Since only 509 bus drivers are needed to evacuate all public and i private schools in the EPZ in a single wave Crocker e_.! al., ff. Tr.19,431, at 50. LILCO already had more than enough licensed drivers at the time of the hearing.
As to the second issue (the calculation of the number of delvers), Intervenors contend that the Board ignored their testimony about how LILCO calculated the num-ber of drivers needed to evacuate schools. Int. Bc. at 57. To the contrary, the Board i
discussed and cited that testimony, CID at 54, though it did not find it persuasive. It found that there would be enough drivers to evacuate all school children in the EPZ, even it the method of calculatin' the number of drivers was not exact, because LILCO's plan requires that an additional 50% of the LERO drivers needed to help in the evacua-tion would be mobilized. CID at 61t See also Crocker e__1 al., If. Tr.19.431, at 53; Tr.
20,023-24 (Crocker). The Board should not have addressed this issue at all, because the assumptions LII.CO used to calculate the number of drivers needed were litigated in
I 9
i
{ 1984. Crocker et a_1., if. Tr.19,431, at 51: see, e&, Transcript of May 30,1984. Vol. !!, (
at 55 (LILCO written testimony on reducing school populations by five percent to ac-
]
4 count for daily absences and high school populations by 20 percent).
2 Furthermore, the record shows that LILCO's method of calculating the number of drivers ',s appropriate. LILCO testified that, on the average,5% of the school popu- l lation is reduced daily due to absences and that approximately an additional 20% of the I 1- t high school population travel to school in their own cars or with someone else. Crocker [
.e_t aj. ff. Tr.19,431, at 50,51. These figures were based on information received from i
! school officials on Long Island. See M at 51 Cordaro et ab, ff. Tr. 0154, Vol. II, at 55;
[t t
Tr.19,754-57 (Crocker); see also Tr. 19,758-60 (Crocker). Suffolk County's testimony [
- also supports the .' eduction for school absences. Tr. 20,308-10 (Muto, Suprina, Petr11ak).
{
- b. Early Dismissal l r j The intervenors argue that the ASLB erred by not hearing testimony about role '
conflict of school bus drivers during early dismissal (as distinguished from evacuation).
Int. Br. at 31, n.89.W The Licensing Board ruled that that issue was outside the scope f f
of the remand, May 9 Order at 3 May 12 Order at 3, and for good reason. Early dis- [
missal was not remanded by ALAB-832.
In their 1985 appeal that prompted ALAB-832, Intervenors argued that the Li-censing Board had failed to give sufficient weight to their testimony on this issue. See [
l Suffolk County, State of New York, and Town of Southampton Brief on Appeal of l
l 23/ Throughout their April 27 Response to 1.ILCO's motion to strike their testimony, i Intervenors argued that they were not trying to relitigate issues previously resolved in l LILCO's favor but rather that they were offering the testimony "to address whether LILCO's new schools plan will work, . . ." April 27 Response at 27 (rola conflict of !
teachenO M
- Iso % at 11 (school relocation centers),17 (early dismissal). 30 (tele- I phone c e"c ), and 38 (monitoring and decontamination and limited road network). I But theit ..admeny directly conflicts with the Board's findings in the PID on those is- I sues. Intervenors' testimony claims that the "problems *' raised in those issues still exist l and will prevent LilCO from implementing its plan. This plainly is an attempt to ;
relitigate settied issues. i I
t i
L I
-- . - . --- _ n
Licensing Board April 17, 1985 Partia) Initial Decision on Emergency Planning (Oct. 23, 1985) at 60. The Appeal Board 'ound no fault with the Licensing Board's treatment of the issue; it did not order the Board to Monsider the testimony, the Intervenors' only testimony on early dismissal.E Similarly, in the Limerick caso the Appeal Board con-cluded that the early dismissal plan was not directly relevant, inasmuch as it was in-tended for use prior to any official emergency evacuation order. Philadelphia Electric CA (Limerick Generating Station, Units 1 and 2), ALAB-857,25 NRC 7,14 (1987),
it is also evident that early dismissal was not remanded by ALAB-832 because the excluded firemen survey that prompted the romand asked what firemen would do only in an evacuation, not during early dismissal. Even the Intervenors' survey of school bus drivers did not ask about early dismissal. See Cole, ff. Tr.1216, at 6-8.
Even if the Appeal Board had intended the Licensing Board to address early dis-missal, its f ailure to do so would be, at most, harm! css error, because the Licensing Board's finding on role conflict during evacuation covers early dismissal as well. If any-thing, role abandonment would be even less likely during a slower-moving accident when the drivers were asked to drive the children home exactly as they are required to 1
do in snowstorms.
1
- c. The Availability of Buses, School Relocation Centers, and Evacuation Time Estimates intervenors complain that the Licensing Board refused any inquiry into whether there would be enough buses available to evacuate schools. Int. Br. 55,57. They com-plain that the Board ignored issues about evacuation time estimates for EPZ schools and the adequacy of school relocation centers. Int. Br. 57,59. The Board ruled, however, that those issues were outside the scope of the proceeding:
- L4/ LILCO traced the history of the appeal of role conflict during early dismissal in two separate pleadings. See LILCO's Motion in Limine and Motion to set a Hearing Schedule (Jan. 25, 1988), and LILCO's Motion to Strike Testimony of Brodsky, et al.
(April 20,1988) at 4-5. Interrenors did not conf ront these f acts.
l
- The areas referred to in LILCO's motion have been subjects of prior iltigation and were placed by the Board in the category of d',ficiencies of a lesser magnitude that could be remedied
- (
See CPID, 22 NRC 410 at 429-430. Although, in oJr ruling on
! _LILCO's summary disposition motion of the bus driver issue ,
we authorized discovery on the (new) plan's dimensions, we ;
did nat intend--nor could wo-to include matters previously :
resolved as remedial or detall areas, which were lef t to bc l completed prior to full plant operation. ;
,l
~
February 23 Order at 3 (emphasis added). This ruling is in line with ALAB-832 and with Intervenors' position that the Board did not have jurisdiction to hear these issues (see Int. Br at 52-53). As the Board found, the counting of available buses should be lef t to the Statf. CID at 62. See also Long Island Lighting Co. (Shoreham Nuclear Power Sta-I tion, Unit 1), LBP-87-32,26 NRC 479,493-94 (1987)(counting buses need not be accom- .
i I
plished in connection with the exercise). ;
l t i The short of the matter is that LILCO has committed to supply the necessary j i !
number of buses, and has testified that it will buy them if necessary. Tr. 19,794-96, 1
19,800 (Crocker). Verifying that enough buses are available is precisely the sort of thing that can be and should be lef t to the Staff and FEM A.E l
M/ As the Appeal Board in the timeric8 case explained, post-hearing verification l ttems that are proper subjects for Staf f oversight are essentially details "relating to the p l Implementation of the emergency plan, rather than a basic ingredient of the plan '
itself." Philadelphia Electric Co, (Limerick Generating Station, Units 1 and 2), ALAB- L 836, 23 NRC 479, 495 (1986), citing Loulslana Power and Light Co. (Waterford Steam j Electric Station, Unit 3), ALAB-732,17 NRC 1076,1103-09 (1983). In I.imerick, the :
- designation of 17 additional traffic control points was considered to be an imple- j mentation detail. 23 NRC at 522. In the Waterford case,17 NRC at 1108-09, the Board !
- decided that the implementation and testing of the stren warning system, the execution f i of formal letters of agreement for additional vehicles and drivers, and dotatis concern- !
i ing the communication system for emergency support organizations were implementing detalls appropriately ! cit to Staff confirmation. In another case, the development and initiation of a bus driver training program was made a licensing condition, Southern California Edison Co_ (San Onofre Nuclear Generating Stations, Units 2 and 3), ALAB-j 717,17 NRC 346,382 (1983).
! Other emergency planning issues that have been lef t for Staff confirmation are l whether informational material for the general public should be printed in English and Spanish, Southa'n_ California Edison Co. (San Onofre Nuclear Generating Station, Units (footnote continued)
._ __,._ _ , ..__, --___.-_.r_.., , 1&-
33
,m
- d. Other Previously Litistated Issues Three other issues raised by the Intervenors were also resolved in LILCO's f avor in the 1985 PID. None of them was remanded in ALAB-832. Two of the issues, role conflict of teachers and other school personnel and traffic congestion from parents picking up the'r children, were specifically ruled outside the scope of the remanded proceeding by the Board in its May 9 and May 12 Orders. See May 9 Order at 3; May 12 Order at 3. The teacher role conflict is::ue was resolved in LILCO's f avor in the P!D at 677-79. The traffic congestion issue was resolved in LILCO's favor in the PID at 798-800, 866.
As to the third issue, Intervenors claim that LILCO failed to plan for how par-ents will be told where their children are af ter an evacuation. Int. Br. at 58. This issue was also litigated in the 1983 84 hearings. The ASLB found then that there was "no regulation which requires LILCO to plan for ' safe reunification' of children with fami-lies." PID at 869-70. Lil.CO does have a procedure for reuniting families at the school relocation centers, OPIP 4.2.1 (Rev.10), but it was not put into evidence because school relocation centers were outside the scope of the remand proceeding.
The ASLB was correct, indeed was obligated, not to permit litigation of issues previously resolved, it lacked jurisdiction to reopen decisions that had become final agency action. See Public Service Co. of New Hampshire (Seabrook Station Units 1 and 2), ALAB-513,8 NRC 694,695 (1978).
(footnote continueo) 2 and 3), LBP-82-39,15 NRC 1163,12'.6 (1982); whether certain emergency equipment had been purchased and delivered to ofIsite response organizations, hj.; and the testing of warning sirens and arrar.gements for alternate means of public notification in any area of deficient performance, Southern California Edison Co. (San Onofre Nuclear Generating Station Units 2 and 3), LBP-32-46,15 NRC 1531,1532,1537 (1982).
4 i
i .
I Cumming, Stay 11, 1983. School district board members are elected on Long Island. Tr. l
! 20,260-61. It may therefore be presumed that they would follow the LERO plan (which in any event is based on the schools' own plans).N Intervenors' testimony was an Impermissible cha!!cnge to the "realism" regulation and should have been stricken. '!
- f. Bus Drivers Returning Buses [
i Intervenors also argue that the ASLB ignored evidence that there was no factual L
- foundation for LILCO's assumption that buses would be available at the bus yards. First.
I this issue is beyond the scope of the remand.D Second, the Intervenors mischaracter- f i
Ize the record. The County's testimony cited by Intervenors says only that, in one wit- .
+
t ness's opinion, the regular drivers would not return their buses before evacuating. Tr. l 20,368 (Smith). LILCO's testimony, however, does give a sound basis for its plan: any )
i driver who decided not to help evacusto schools would, at minimum, return the bus to l r
\
l the yard in order to retrieve her own vehicle, which she would need to evacuate herself i t
I l and her f amily. Tt' 20.151-52 (Crocker).
i j Given that Intervenors f ailed to demonstrate any significant safety issue, the ,
e ASLB was not obligated to make any finding on this lssue. See Philadelphia Electric Co. j y t I
(Limerick Generating Station, Units 1 and 2), ALAB-857,25 NRC 7,14-15 (1987)(licens- l ing boards "are not obl!ged . . . to refer specifically to every proposed finding"; address- l 1
! Ing the "parties' principal arguments" is adequate). Storeover, the issue of bus drivers !
l I
j running away with the buses is resolved by the Board's findings on the issue of role i 1
i<
r
! 2_f/ The criticisms of LILCO's "realism" argument in ALAB-905,28 NRC , slip op. [
at 8-10, do not weaken the argument here, it has been shown on the record that sever- t I
i al school districts have opposed LILCO's plan. See, el, Transcript of Stay 30, 1994 j Vol. II, Attachments 18-22. It is also established on the record that L1LCO has tried dil- f 1 Igently to secure the participation of the schools. See, e_&, id. at 21-23,26.
J
! j 2/ During the 1983-84 hearings the Board heard testimony on the alleged problem of j teachers who keep their buses during the day. See Tr. 962-63 (Weismantle), 6605-06 :
(Robinson).
O I
conflict that was remanded. Since the record shows that regular school bus drivers j would not abandon their jobs, it follows that they would not run away with the buses, i
- g. Evacuation of flandicapped Children The only testimony Intervenors cite for the proposition that tne Board ignored testimony that "LILCO's plan f ailed to provide for the prompt evacuation of handi-capped students" is LILCO's procedure and its written testimony explaining how that procedure works. Int. Dr. at 57. According to LILCO's testimony, LERO would dispatch speelhl vehic!cs to evacuate handicapped students to any school requesting special as-sistance of that kind. See Crocker Supplemental Testiraony, (f. Tr.19,431, at 3: OPIP 3.6.5, Attachment 11t see also Tr. 20,153-56 (Crocker). The testimony also shows that LILCO has enough special vehicles to evacuate all handicapped students. Tr. 20,155 4
(Crocker).
Although this issue is outside the scope of the remanded issue, the Licensing Boatd provided Intervenors ample opportunity to explore it. See Tr. 20,153-56 (Crocker). The Board restricted Intervenors' cross-examination only af ter they strayed into the issue of whether there were enough vehicles. Tr. 20.156 (Judge Gleason). De-spite the leeway given them, Intervenors failed to demonstrate any safety concern. l There was no need for a separate finding on this matter. See !.imerick, ALAB-857,25 NRC at 14-15.
- h. Notifying, Mo!'illring, and Dispatching Bus Drivers and Legistical Difficulties at Bus Yards Intervenors claim that the ASLB ignored testimony on two other issues: (1)
LERO's method of notifying, mobilizing, anc' dispatching its bus drivers and (2) alleged logistical difficultics at the bus yards. Int. Br. at 57. Despite the f act that these issues l are not within the scope of the remanded Contention 25.C.E the Board allowed M/ CJ, Philadelphia Elec. Co. (Limerick Generating Station, Units 15: 2), ALAB-857, 25 NRC 7,11(1957)(overalllogistics not intenced to be an issue on remand).
l Intervenors to explore them. Both LILCO and the intervenors testified on the issues.
and the Board allowed significant leeway during cross-examination. See, e&, Tr.
19,678-79,19.715-16,19,718-19, l'J,725,19,741-42,19,757-58,19,810-11, 20.015-46. BJt Intervonors were unable to demonstrate any significant safety issue, arguing only that the logistics would be dif ficult. Nor did they confront LILCO's measures for solving the l potential difficulties. Therefore, the ASLB did not need to make findings on them. S_e_e Limerick, ALAB-857,25 NRC at 14-15.
If a finding were made, it would have to support LILCO. First, LILCO's proce-dures for notifying and mobilizing LERO drivers are "similar to how the rest of LERO's emergency workers are mobilized." Crocker e1 al, ff. Tr.19,431, at 53. The ASLB had previously found LERO's procedures for notifying and mobilizing its other emergency workers adequate. See PID,21 NRC at 708, 714, 724. Second, LILCO has prepared de-tailed written instructions for its bus drivers. These instructions will be kept at the bus l
! yards or brought there the day of the emergency, Crocker, et al., f f. Tr.19,431, at 54-55. Third, bus company dispatchers will be provided written instructions on what to do, and the LERO bus dispatcher at the EOC will also explain to dispatchers what they are supposed to do. E at 55. Fourth, LILCO has addressed the logistics at the bus I
y.1rds through training programs for LERO drivers and bus company dispatchers. Tr.
! 19,725-28, 20,041-43 (Crocker). Fif th, LERO drivers have also been trained to help the regular drivers understand what to do and may in some cases acecmpany the regular drivers. Crocker qLaj., if. Tr.19,431, at 60. l
- 1. Nonitoring and Decontaminatfortof School Childrqn Intervenors contend that the ASLB ignored testimony that "LILCO's plan failed j to provide for the monitorir.g and decontamination of evacuated school children, prior
- to their relocation to reception centers." Int. Br. at 57.
l i
I
4 Monitoring and decontamination of school children are subjects clearly outside l the Contention 25 role conflict issue, however broadly read. The Licensing Board rec- !
ognized this in its orders striking Intervenors' testimony on this issue. See May 9 Order at 3: May 12 Order at 3. School children. like other members of the public, are moni-r fored at LILCO's public reception centers. The adequacy of LILCO's monitoring and decon amination procedures at public reception centers was litigated thoroughly during the reception conter romand proceeding in 1987, and the Board found for LILCO. See Long Island Llehting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-88-13,27 NRC 1
509 (1988), remanded oc other crounds, ALAB 905,28 NRC (1988).
The LERO plan does provide for monitoring school children, in OPIP 4.2.1 i S 5.4.10. The testimony Intervenors cite (Int. Br. 57) does not suggest otherwise. Rath-er it discusses whether school children would be relocated to the liicksville fee!!ity if their parents did not pick them up at the school relocation center. See Tr. 20,120-26 (Crocker).
J. Letters of Agreement with Bus Dispatchers and Distances LERO Drivers Must Travel Intervenors claim that the Licensing Board disregarded testimony about letters of agreement with bus dispatchers. See Int. Br. at $7. They also contend that the Board overlooked testimony that "[m]any LILCO drivers must travel long distances to get to the bus yards they are assigned." Int. Br. at 57. These issues, however, are out-l i
side the scope of the remanded issue. They also were not raised below.
The transcript pages Intervenors cite to support their claims are not relevant to
- the issues in any way. For example, Intervenors cite Tr. 20,372-73 to support their cit.im that LILCO lacks agreements with bus dispatchers. On those pages a County wit-ness says that LERO drivers would not be given buses at the bus yards and that the reg-ular drivers would not know what they were supposed to do. The remaining testimony the Intervenors cite (Brodsky et al., ff. Tr. 20.259 at 4) contains only background information on the County's witr. esses, r.othing more.
l
O Intervenors cite parts of LILCO's testimony to support their claim that LERO drivers must drive long dif tances to get to the bus yards. See Int. Br. at 57, citing Crocker et al., it. Tr.19,431 at 52; Tr.19,824-27 (Crocker). But LILCO's testimony at both places discusses how many LERO drivers live within the 10-mile EPZ. It does not ,
discuss how f ar they have to travel to report for their bus driving duty.
In short, Intervenors have not succeeded in showing that a sir;gle important stone was lef t unturned. The Luues they attempt to raise were heard, either in the original hearings or on remand.
- 111. EBS Intervenors' brief at pages 58 through 70 addresses the Emergency Broadcast I
System. LILCO responds to Intervenors' claims of error below, i A. The ASLB Correctly Granted LILCO's Summary Disposition Motion on the EBS !ssue The Licensing Board ("A3LB") granted LILCO's Second Motion for Summary Dis-position of the EBS Issue ("L!LCO's Second Motion") bemuse LILCO provided facts
- showing the adequacy of its EBS provisions and because the Intervenors f ailed to coh-trovert any of them. CID at 4-33. Intervenors wr.vance several merits and procedural arguments for reversing the ASLB's decision. These 'rguments are unsupported in law or f act. The Appeal Board should affirm the ASLB's ruling in LILCO's f avor
- 1. Background 23 LILCO has twice established its own, Shoreham-specific E8S, and paid for back-up gererators and other equipment to ensure the reliability of the lead statfordtE f
I 22/ The procedural background of the EBS issue was set forth at length in the ASLB's decision and in LILCO's Second Motion, so LILCO does not repeat it here. Sfte CID at 4-l 8t LILCO's Second Nation at 1-3 Liune 20.1988).
i i 3_0/ E LILCO Test. Cont,20, ff 5254, at Att.1 (Mar. 79,1984): Tr. 5283 (Clawsons-S LILCO's Motion for Summary Psposition of the WALK Rau.o Issue at 8-9 (Nov. 6,1987). l
both times its efforts have been undone by anti-Shoreham activities beyond its control.
LILCO's first EBS was headed bf WALK Radio in Patchogue, New York. The WALK EBS was fully litigated and approved by the NRC. LDP-85-12, 21 N RC 644, 759-60, 763-64 (1935), afI'd in relevant parts, ALAB-832,23 NRC 135 (1986).
Subsequently, however. WALK withdrew f rom the system "on the advice of coun-sel," ostetelbly because of the New York State trial court's decision in favor of the State and Suf folk County in Cuomo v. LILCO. Letter, Alan S. Beck, President and Gen- ,
eral 51anager, WALK to fra L. Freilicher, Vice President, LILCO, dated August 8,1986 (Att. B to Intervenors' Oct. 15, 1986 Stotion to Reopen Record). LILCO then replaced WALK with WPLR, an FM station broadcasting from New Haven, Connecticut. LILCO's 3
Stotion for Summary Disposition of the WALK Radio Issue at 4 (No/. 6,1087). WPLR diso withdrew fro.n the system, af ter months of intense pressure from various oppost-tion groups and public of ficials on Long Island and in Connecticut. LILCO's Second 5fo-tion, Att.1 (June 20,1938).
In light of this experience, LILCO decided to rely on the Intervenors' own EBS:
the preexisting '"
.al New York State EBS for the Nassau-Suffolk Counties Opera-tional Area, wh! s. is triggered by WCBS in New York City. The State EBS and its oper-ational procedures are detailed in the official State EBS Plan and the EBS Procedures for Nassau and Suffolk Counties, both of which were attached to LILCO's Sccond Sto-tion. Since this system is the one relled upon by New York State and Suffolk County to broadcast emergency mec3 ages in all other emergencies, it !s unlikely that it would fall t 2
victim to the type of concerted political pressure that has undermined LILCO's 1
Shoreham-spe ific EDS networks.
No material issacs of fact concerning LILCO's reliance on the State EBS remain, for two simple reasons. First, despite ample time and opportunity, the Intervenors I have never challenged the adequacy of the State EBS. They were first put on notice
O O
that LILCO would rely on the State EBS when LILCO filed its Second Renewed Slotion for Summary Disposition of the Legal Authority Issues on Starch 20, 1987. Intervenors failed to controvert the EBS-related f acts in LILCO's Second Renewed 51otion, so the ASLB deemed them admitted. LBP-87-26, 26 NRC 201 (1987). Then, more than a year later, Intervenors again f alled to come forward with f acts to challenge the State EBS in their July 12, 1988 Response to LILCO's Second Station. CID at 32-33.
Second, the ability of the State EDS to broadcast emergency infortration to the 10-mile EPZ is beyond question. Not only does its lead station, WCBS, provide adequate coverage by itself, but the State EBS provides redundant coverage, since it incorporates over 30 Long Island stations, including all the stations in the WALK-triggered Shoreham EBS that was previously litigated and approved.
None of Intervenors' substantive or procedural argummts sheds doubt on these f acts. Therefore, the Appeal Board should uphold the ASL'/s yrint of summary dispost-tion in LILCO's f avor.
- 2. The ASLB Correctiv Found LILCO's EBS Adequate on the 51erits The Intervenors advance three arguments why the ASLB erred in ruling for LILCO on the merits:(1) LILCO failed to demonstrate the adequacy of WCBS' coverage, .
1 (2) LILCO is required to have agreements with EBS stations, and (3) there are !
unresolved material issues of f act regarding LILCO's ability to interface with Suffolk County and New York State on EBS activation. Int. Br at 63. These arguments are wrong, for the following reasons.
First, LILCO demonstrated overwhelmingly that the State EBS provides adequate ;
coverage of the 10-mile "PZ. Among the five reasons LILCO offereo were that the State EDS includes WALK and all of the other stations that were in the approved Shoreham EBS and that WCBS itself provides adequate coverage, as demonstrated by an uncontroverted affidavit from a professional broadcast engineer.
I t
Second, NRC and FEMA guidance makes perfectly clear that agreements with EDS stations are not required. At one time the FEMA guidelines called for agreements, but these were expressly superseded by FEM A-REP-10, which substituted for the agree-ments provision a provision that an emergency plan should include documentation showing the station's ability to participate in the EBS. "Guide for the Evaluation of Alert and Notification Systems for Nuclear Power Plants." FEM A-REP-10, at E-2 (Nov.
1985); sg LILCO's Second Renewed Motion for Summary Disposition of the "Legal Au-thority" Issued at 14-16 (Mar.10,1987); LILCO's Motion for Summary Disposition of the WALK Radio Issue at 7-8 (Nov. 6,1987).
Third, Intervenors' refusal to come forward with "interf ace" information is in large part why the ASLB ruled in LILCO's favor on the realism contentions (contention 5 in particular) and dismissed Intervenors frotn the proceeding. Me CID J 88-149. In-tervenors should not be allowed to raise the same interf ace issues in the EBS proceed-ing. Moreover, Intervenors' continued claim that there are materialissues of f act con-cerning the EBS interface is belled by Intervenors' repeated failure to produce facts to substantiate their position. In light of the Commission's realism rule,10 C.F.R.
S 50.47(c)(1)(1988), LILCO's interf ace procedure and the official EBS procedures for the Nassau-Suffolk Counties Operational Area (Atts. 2 and 4 to LILCO's Second Motion), no material f act issues remain.
LILCO sets out these arguments in more detail below,
- a. The ASLB Correctly Found that the Statn EBS Provides Adeouate Coverage of the 10-Mil 9 EPZ Intervenors assert that the ASLB "clearly erred" in finding that WCBS provides adequate coverage to the 10-mile EPZ. Int. Br. at 63. They claim that the ASLB mis-construed FCC regulations and a passage from a sworn engineering report submitted as part of LILCO's summary disposition motion. If at 63-64.U This argument is not only 3_1/ Intervenors say that the ASLB misinterpreted the following passage:
(footnote continued)
\
0 wrong, but it ignores other facts showing that coverage is adequate.
As a preliminary matter, there should be no issue at tul concerning coverage of the State EBS because (as Intervenors have admitted) it includes WALK and all of the other Long Island radio stations that were part of the original approved Shoreham EBS.
See LILCO's Second Motion at 7. Intervenors never challenged the coverage of the WALK-triggered EBS. In f act, they raised only two concerns: th'at WALK (AM) did not normally broadcast at night (Contention 20) and that the tone alert radios could not be activated by WALK (AM) at night (Contention 57). LBP-85-12, 21 NRC 644 at 759-60, 763-64 (1985). The ASLB ruled in LILCO's f avor on both. Id., aff'd in relevant parts.
ALAB-832, 23 NRC 135 (1983). Thus, the Intervenors forfeited their opportunity to challenge the WALK system's coverage and cannot do so now. Sg CID at 32 C'The rea-son the (WALK coverage) matter was not at issue however is that intervenors had ex-pressed no basis for concern in their contention on the subject.").
In addition, the State EBS provides redundant coverage because, as the ASLB noted, it "inclindes about 30 radio stations on Long Island at least some of which can reach the EPZ with an audible signal." CID at 25. Contrary to the Intervenors' claim that "LILCO never bothered to identify them," all of these stations are identified in the State's own EBS procedures for Nassau and Suffolk Counties, which LILCO attached to its motion, geg LILCO's Second Motion, Att. 4 "Emergency Broadcast Procedures "
(footnote continued)
A 0.5mV/m signalis the FCC required (sic} for primary ser-Vice to rural areas and communities with population less than 2500 persons, and this WCBS contour covers the entire EPZ. However, a signal strength of 2mV/m is required by the FCC standards to serve communities with population in excess of 2500 persons including "Census Designated Places" (CDP's). The EPZ consists of numerous CDP's and communi-ties in excess of 2500 persons.
LILCO's Second Motion, Att. 6, at 2 (June 20,1988).
Annexes B and C, and which are contained its the County Pesource blanual supporting the Suffolk County Emergency Operations Plan, LILCO Disc. Ex. 31. Tr. 21,424. Among them are the very stations (including WALK Radio) that provluusly constituted the local Shoreham EBS that was litigated and approved by the NRC. SE LiLCO's Second Stotion at 5-7.
Intervenors' attempt to raise doubt about WCBS' coverage by referring to FCC regulations misses the point that those regulations apply to ordinary "primary" service.
It is immaterial whether WCBS meets FCC criteria as a provider of "primary service" throughout the EPZ; the only question is whether WCBS could broadcast audible mes-sages to residents of the EPZ jn an emerzenc_y. jd. at 24. LILCO's Station showed un-questionably that it could.D Flnally, despite ample opportunity, the Intervenors have never directly chal-lenged WCBS' coverage of the Shoreham EPZ: the most that they have asserted is that WCBS' coverage has neither been "resolved" nor "conceded." S_eg, e_4, Intervenors' Re-sponse at 6, 22-30. Intervenors could hardly have done otherwise, since the existing EBS procedures for Suffolk County and New York State rely on this very EBS network to broadcast emergency information throughout Long Island. But generalized denials of the type Intervenors have offered are insufficient to defeat a summary disposition mo-tion. Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584,11 NRC 451,453 (1980).
LILCO's Stotion provided facts suffielent to establish the adequacy of the State 3_2/ The FCC 2mV/m and 0.5mV/m standards refer to primary service during normal day-to-day operations. S_e__e 47 C.F.R. S 73.182(e)(1987). The FCC requires stations to provide a higher continuous broadcast level to more densely populated areas in order to mitigate interference from obstruction and man-mado noise. The regulations do not in-dicate that the 0.5mV/m level would be insufficient for emergency broadcast purposes.
The ASLB's interpretation that the 0.5mV/m standard defines an audible broadcast sig-nal ls correct.
o EBS' coverage within the 10-mile EPZ. Intervenors did not controvert any of those f acts. According to 10 C.F.R. S 2.749, LILCO was entitled to summary disposition.E
- b. The ASLB Correctly Found that LILCO Does Not Need an Agreement with WCBS It is undisputed that LfLCO does not have an agreement with WCBS, but it is in-disputable that LILCO does not need one. Neither NUREG-0654 nor FEM A-REP-10 re-quires an applicant to provide agreements with EBS stations. Intervenors' assertion that they do is incorrect.
Nowhere does NUREG-0654 mandate that agreements are necessary to show the capability of a station to participate in an EBS. All NUREG-0654 requires is that a prompt notification scheme "include the capability of local and State agencies to pro-vide information promptly over radio and TV . . ." NUREG-0654, App. 3 at 3-4. Evi-donce of such capability can be provided in the form of "agreements, arrangements or citation of applicable laws which provide for designated agencies to air messages on TV and radio in emergenices." M. NUREG-0654 adds that "[i]t Inay be necessary for utili-ty organizations to sign agreements with CPCS-1 stations in order to cover a fast
! breaking general emergency." M. at 3-15.
Intervenors claim that this language, in light of a preceding sentence, means that agreements "must be in place," but this interpretation does not square with the other language indicating that agreements are optional, The preceding sentence says that "Operational Area EBS plans involve agreements with the Common Program
! 3j!/ LILCO's motion provided additional reasons to support a finding that the cover-age of the State EBS is adequate. For example, LILCO argued that the Intervenors had admitted the adequacy of WCBS' coverage by virtue of their f ailure to controvert Fact
- No.17 in LILCO's Second Renewed Motion for Summary Disposition of the Legal Au-
- thority Issues, LILCO's Second Motion at 7
- and that an adverse factual presumption should be drawn from Intervenors' f ailure to permit further discovery on the EBS issue, W. at 8-9. Since the ASLB found the facts in LILCO's motion sufficient to establish the adequacy of the State EBS' coverage, it deemed it unnecessary to consider these other arguments. CID at 31-32.
l
e Control Stations (CPCS-1) and local emergency preparedness organizations while the State EBS plan is coordinated with the Stato emergency communications chairman."
NUREG-0654 at 3-15. This sentence is obviously descriptive, not prescriptive: it mere-ly points out that Operational Area EBS plans commonly employ agreements with the lead station and emergency preparedness organizations. It does no_1 say that agree- _
ments are necessary to pass regulatory muster, indeed, the only reasonable reading of the sentence "it may be necessary . . ." is that agreements are optional.33 In any case, the "agreements" contemplated by the quoted language are present here. The New York State EBS Operational Plan, which is Attachment 4 to LILCO's Second Motion, expressly states that "(d]etailed procedures have been agreed upon by the broadcast industry and the New York State Office of DisastJr Preparedness which will permit the Governor to issue emergency inforrnation and instructions via the State EBS Network in threatened or actual emergencies." LILCO's Second Motion Att. 4 at
- 1. It states further that "[1]ocal jurisdictions in conjunction with local broadcasters have agreed on detailed procedures that were approved to permit local officiais to issue emergency information and instructions . . . ." Ld. Thus, the 5t'Ite EDS upon which LILCO relies does "involve" agreements.
3_4/ The ASLB read NUREG-0654 as establishing a contingent requirement, la, an agreement might be requirer' the proffered evidence of capability does not include adequate assurance of prompt re:.ponse in a fast breaking emergency. CID at 21. Since the ASLB found that LILCO's motion provided such assurance, it correctly deemed an f
agreement witn WCBS unnecessary. Ld. at 22.
Contrary to Intervenors' assertion, there is ample evidence to support the ASLB's finding of "adequate assurance of prompt response." That evidence consists of the spe-cific EBS plan currently ralled upon by Suffolk County and New York State. CID at 21-
, 22. By its own terms, that plan "provides specific procedures for the broadcast media to disseminate emergency information and warning to the general public in the Nassau and Suffolk Counties New York Operational Area or any por* ion thereof within the sta-tion's broadcast coverage capability at the request of designated local, State and Feder-I al officials." LILCO's 'iecond Motion, Att. 4, S I. Intervenors did not (indeed, could not) j challenge the State p)an's authenticity or any of its provisions. CID at 21-22. Interve-
, nors did not, and do not now, offer any f acts to show that a prompt response would not be forthcoming under these EBS procedures. The ASLB's finding is supported by the ev-
- idence and should be upheld.
O Nor are agreements required by FE51A-REP-10. FE51A REP-10 says that an EBS plan should "reference or include some form of documentation, available for review, that states the station's or broadcast system's ability to participate in the public notifi-cation process." FE51 A REP-10 at E-2 (Nov.1985) (emphasis added). The guidance doc-ument that FE51A-REP-10 sur,erseded did call for agreements,3S But FE51A revised that provision in FESTA REP-10 because it recognized, and accepted, tht 'some stations that are able to participate in an emergency might not be willing to agree in advance to do so:
One utility industry group also noted that since individual radio station participation in the EDS is voluntary, it may not be possible to obtain the formal participation agreements re-quired in FE51A-43.
In response to these comments, FE51A has . . replaced the requirement for written agreements that individual broadcasting stations will participate in the EDS with a re-quirement for documentation indicating that they are able to participate in the EBS.
Notice of Availability of FE51A-REP-10, 50 Fed. Reg. 43,084, 43,085 col.1 (Oct. 23, 1985).
In short, the current requirement is to document a station's ability to partici-pate, not its pre-emergency willingness to participate. Intervenors' argument to the contrary is without support.E 3_5/ FE51A-43,"Standard Guide for the Evaluation of Alert and Notification Systems for Nuclear Power Plants" (Sept.1983) included a criterion that an emergency plan "reference (s} or include (s) some form of agreement, available for review, which states the station's or broadcast system's willingness to participate in the public notifi-cation process." FE51A-43 at E-2 (Sept.1983)(emphasis added).
3_6/ Intervenors' statement that LILCO has always obtained agreements with radio stations in the past (Int. Br. at 65 n.114) is irrelevant. The fact that LILCO has previ-ously obtained agreements neither establishes a requirement that it do so nor concedes that such a requirement exists.
a If tiare was any doubt about whether radio stations need to be bound by written il agreement to help people in an emergency. It was removed by the Executive Order signed by the President on November 18. 1988. This Order directs FEMA to plan for federal participation in responding to a radiological emergency where state or local l governments have declined to participate in planning. Exec. Order No. 12,657,53 Fed. ,
Reg. 47,513 (1988). In section 3(b)(2) it provides that FEMA's planning will thclude "ar-rangements for using existing Federal resources to provide prompt notification of the emergency to the general public" and "to ensure the creation and maintenance of chan-4 nels of communication from commercial nuclear power plant licensees or app!! cants to i
State and local governments and to surrounding members of the public." M. at 47.514.
In the event of an actual radiological emergency, Section 5(a) directs FEMA to "take all ;
steps ne'.*essary" to ensure the implementation of these plans and to "coordinate the ac-tions M other Federal agencies to achieve the maximum effectiveness of Federal ef-forts" in responding to the emergency @. at 47,515. Thus, the Federal government l l will activate the EBS in the unlikely event that LILCO, Suffolk County, or New York State could or would not.b
- c. The ASLB Correctly Found that Intervenors La!!ed to Controvert Other Facts in LIL_CO's Motion l i
Intervenors assert that the ASLB erred in finding that they had not controverted f acts concerning LERO's ability to "interf ace" with the State and County. Int. Br. 66-
- 67. They also assert that there is no evidence to support the ASLB's finding that radio stations would participate in the State EBS in an emergency.1d. Intervenors are wrong ,
on both count;.
i Intervenors' claim that they "clearly controverted" LILCO's interf ace f acts is not 31/ If the EBS is activated from the White l{ouse, all radio (and TV) stations must l participate. See 47 C.F.R. S 73.931(a), 73.933 (1987). !
i i
supported by the cited pages f rom Iratervenors' Response. All the cited pages contain is Intervenors' assertion of their right to litigate interface issues and their argument that private radio stations have no obligation to participate in the Siate EBS. Intervenors' Response at 41-42. Intervenors never bothered to offer f acts to show why LILCO's interface procedure and the State EBS procedures would not wek.E If they had such facto they were obligated to provide them. North Anna, ALAB-564, supra. In the ab-sence of such facts, the ASLB properly ruled that the interf ace procedure, in conjunc-tion with the NRC's "best efforts" principle and the preexisting State EBS Plan and Pro-cedures, is adequate to give reasonable assurance that LERO could interf ace effectively with Suffolk County and New York State.
Storeover, Intervenors' refusal to come forward with interf ace facts is precisely what led, in large part, to their dismissal from the proceeding. Intervenors consistently have declined to say what they would do in an emergency, including how they would interact or interf ace with LERO. And when documents were disgorged by the Interve-nors, they showed that an interf ace is easily achievable; this was particularly true for EBS functions, since the County Resource Stanual contains a copy of the official State EDS plan on which LILCO relles, LILCO Disc. Ex. 31. Tr. 21,424. As a result, the ASLB properly ruled in LILCO's favor on the realism contentions (including Contention 5, which concerns EBS matters) and dismissed Intervenors from the proceeding. S_ce_ CID 3J/ The Intervenors offered plenty of cuestions about interface issues, but no f acts.
For example, Intervenors' Response asked "How would the State or County or LILCO contact WCBS?" ("Material Fact" No.11)t "whether the procedures established foi the State or County or LILCO to contact WCBS are adequate to satisfy regulatory require-ments"("Material Fact" No.12)t and "Under what conditions would LILCO seek permis-sion from New York State to activate the State EBS?" ("Material Fact" No.15), inter-venors' entire "Statement of Material Facts as to which There Exists a Genuine Issue to be Heard" is filled with such questions. The ASLB found it to be merely a statement of issues (not "f acts") that Inttirvenors thought should be litigated. CID at 13. Since it did not disprove or controvert any information submitted by LILCO, the ASLB properly re-jected it as "inadequate and improper." Id.
O 1
at 88-149. ..s LILCO argued in its Second Motion, Intervenors were thus precluded from raising the same interface issues in the EBS proceeding. _Seg LILCO's Second Mo-tion at 9-10: CID at 27.EI Finally, Intervenors offered no f acts to show, contrary to the State EBS Plan and l
Procedures, that the private radio stations in the State EBS would p_o.1 broadcast mes-sages in an emergency. LILCO's Motion showed the existence of an official State EBS 4- network in which over 30 Long Island radio stations have agreed to participate. CID at
- 21. The State EBS plan has been agreed to by the broadcast industry and the State. M.t ;
LILCO's Second Motion. Att. 4 at 1. It specifically provides for EBS response in "nucle- '
) ar incidents," and specifies procedures by which WCBS will alert all other identified stations. M. The ASLB had no reason to believe that radio stations would not partici-pate, and the Intervenors did not provide any. Under the well-established rules of sum-i 1
- mary disposition, Intervenors simply f alled to raise any litigable issues, i
l 3. The ASLB Correctly Determined that Intervenors ,
j DIANot Need Further Review of LILCO's EBS Provisions l Intervenors assert that the ASLB's granting of summary disposition was contrary a
} to the Commission's reopening order in CLI-87-5, and that they were given inadequate i opportunity to review LILCO's EBS provisions. Int. Br. at 67.EI Neither claim has l
,'I D/ As explained in note 1, supra, the Commission is itself reviewing the issue of i whether Intervenors' behavior in the realism proceeding and throughout the course of ,
{
the Shoreham proceeding warranted the ASLB's imposition of sanctinns. Order (Nov. 9, i 1988). LILCO's position is that that review necessarily includes the realism issues from -
which the sanctions issue arose. See Letter, Donald P. Irwin to NRC Commissioners, dated November 16, 1988. Thus, the EBS interf ace issue (Contention 5) is before the
! Commission. Should it be subsequently determined otherwise, LILCO requests that the [
Appeal Board consider the portion of LILCO's brief to the Commission addressing this :
i issue as if filed before the Appeal Board. (
I i
M/ Intervenors also argue, almost as an af terthought, that the ASLB improperly re- !
I jected parts of the proffered WPLR contention. Int. Br. at 61 n.106. To the extent this l argument rests on interpretation of the Commission's reopening order in CLI-87-5, l l
. LILCO shows below why it is wrong. Intervenors do not support or explain their asser- i tion that their due process and the Atomic Energy Act hearing rights were somehow ,
implicated by the Board's admissibility rulings. !
l
merit.
First, CLI-87-5 did not give Intervenors the righf to submit new contentions. It merely suggested that LILCO's new EBS provisions "may elicit additional contentions."
CL1-87-5, 25 N RC 884, 886 (1987). In fact, the Commission instructed the ASLB to admit "new" contentions "only to the extent they assist in focusing further the litiga-tion on earlier-admitted issues." Ld at 890.UI Thus,Intervenors are incorrect that the Commission "plainly recognized that the Governments were entitled (regardless of the tacts and circumstances) to submit contentions." Int. Br. at 68.
Second, the Intervenors had ample opportunity to review LILCO's EDS provi-sions. First, Suffolk County and New York ., ate did not need much time to examine their own EDS system. All of its fea ures and capabilities should have been well known to them, particularly since, as revealed in the realism proceedings, the Suffolk County Resource Manual (which is maintained with the County Em .gency Operations Plan) contains a copy of the State EBS procedures for the Nassau Suffolk Counties Operation-al Area, see LILCO Disc. Ex. 31, Tr. 21,424. This is the same official EBS plan that LILCO included as Att. 4 to its Second Motion. Second, the Intervenors were allowed, ard in f act conducted, additional discovery on I.ILCO's new EBS plan (unilateral discov-ery, since Intervenors did not permit LILCO to depose any of their own personnel) in June 1988. The Intervenors concluded that "this limited discovery was sufficient to M/ The ASLB denied LILCO's firrt summary disposition motion and admitted conten-tions on the WPLR EBS because WPLR and two other Connecticut stations that agreed to participate were totally new. Arguably,Intervenors needed a chance to more closely review and examine the now Shoreham EBS. In contrast, LILCO's Second Motion relied on the official State EBS network and procedures that the State and County themselves rely on to broadcast emergency information. The same need for further discovery and examination did not exist. See CID at 17, 22, 29-30.
M/ Even if Intervenors were correct that the ASLB erred in declining to permit new contentions, the error would be harmless. Since Intervenors utterly f ailed to raise any litigable issues in their Response to LILCO's Second Motion, there was no reason to be-lieve that they could or would do so in contentions.
determine the framework of LILCO's EBS proposal, and that nothing more is needed."
Governments' Briefing Paper Concerning LILCO's Emergency Broadcast System (Jur.e 20,1988) at 9. Thus. Interver. ors apparently were satisfied in their understanding of LILCO's EBS proposal without further discovery. Third, the Intervenors were first put on notlee of LILCO's intent to rely on the State EDS on March 20, 1987, when LILCO filed its Second Renewed Motion for Summary Disposition of the "Legal Authority" is-sues. The Intervenors did not controvert any of the EBS f acts contained therein, so the Licensing Board deemed them admitted. LBP-87-26, 26 NRC 201 (1987); sg LILCO's Second Motion at 6 and Att. 5.E Thus, Intervenors had not one but two opportunities, over a year apart, to raise litigable issues of fact regarding the EBS, and they failed both times.
In short, the Intervenors had ample time and opportunity to examine the State EBS, and in fact took advantage of that opportunity to their apparent satisfaction.
They can blame only themselves if that examination now seems deficient.
13/ Among the f acts Intervenors admitted are the following:
- 1. "There is an exist!ng New York State Emergency Broadcast System (EBS)"(Fact No.14);
- 2. "The State EDS includes a large number of primary stations on Long Island, including the 12 stations that were in the special EBS set up for Shoreham alone" (Fact No.16); and
- 3. "The CPCS-1 has a fif ty kw AM station (WCBS] that covers the entire Shoreham 10-mile EPZ" (Fact No.
17).
LILCO's Second Motion at 6 and Att. 5; LILCO's Second Renewed Motion for Summary Disposition of the "Legal Authority" Issues, Att. A (Mar. 20,1987); LBP-87-26, 26 NRC s 201 (1987).
e
- 4. The ASLB Correctly Dismissed the WPLR Contention as Noot Intervenors assert that the ASLB erred in dismissing the existing WPLR conten-tion as moot, despite having argued to the Board in their Response that the Board should do precisely that. Int. Br. at 70t s_ee_ Intervenors' Response at 20-21. Intervenors ask the Appeal Board to reverse the ASLB's decision and either order litigation on the WPLR contention or grant summary disposition in their favor. Int. Br. at 70. The Ap-peal Board should reject this suggestion and affirm the ASLB's decision.
All parties, including the Intervenors and Staff, urged the ASLB to find the WPLR contention moot. CID at 11-12. S_eg Intervenors' Response at 20-21t NRC Staff Briefing Paper on the 2mergency Broadcasting System Issue at 2 (June 20,1988);
LILCC's Second Motion at 3-4 (June 20,1988). Intervenors' untimely and unfounded at-tempt to characterize the WPLR coverage question as a "live"issue requiring !!!!gation should be rejected out of hand.
More importantly, any participation by WPLR - as unanticipated and unneces-sary as LILCO believes it to be - would be as a "fourth level of backup to be employed only as a last resort." CID at 18. NRC regulations do not require a !!censee to have a backup EBS network. Ld. at 19. Since no backup EBS is required (and Intervenors do not now assert that a backup EBS is required), and "proof of adequacy of such a system can-not be made a condition of licesing," Ld., thers is no plausible reason or justification for litigating issues concerning one. The ASLB correctly dismissed the existing WPLR contention as moot.E 4!/ The ASLB was also correct in refusing to rule in Intervenors' f avor on the WPLR contention. Sge CID at 18-20. The contention was not litigated and no record was de-veloped to support any merits decision, let alone one in Intervenors' favor. The ASLB properly dismissed the WPLR contention without a decision on the merits. Ld. at 20.
l' ,
s IV. CONCLUSION For the reasons stated above, the Appeal Board should affirm the ASLB's decision 4
on the EBS and school bus driver role conflict issues.
Respectf ully submitted, M A& A W 4 ;^J
/ James N. Christ han
/ Mary Jo Leugers Scott Counsel for Long Island Lighting Company D. Matche(t Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: December 1,1988
(
, LILCO, December l.1988 s
1 +i :i ?
y..
CERTIFICATE OF SERVICE *BS DEC -5 R2:02
. i r: '
In the Matter of n '; . . ' "' " I LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Powet.' Station. Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S ANSWER TO INTERVENORS' BRIEF ON SCHOOL BUS DRIVER ROLE CONFLICT AND EMERGENCY BROADCAST SYSTEM (EBS) were served this date upon the following by Federal Express, as indicated by an asterisk, " by first-class mail, postage p:epaid.
Christine N. Kohl, Chairman
- Mr. Frederick J. Shon
- Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board U.S. Nudear P.egulatory Commission U.S. Nuclear Regulatory Commission Fif th Floor (North Tower) East-West Towers Rm. 430
- f. At-West Towers 4350 East-West Hwy.
4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814 Secretary of the Commission Alan S. Rosenthal
- Attention Docketing and Service Atomic Safety and Licensing Section Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Street, N.W. i Fif th Floor (North Tower) Washington, D.C. 20555 (
East-West Towers l 4350 East West Highway Atomic Safety and Licensing l Bethesda, MD 20814 Appeal Board Panel [
U.S. Nuclear Regulatory Commiss'on . r Howard A. Wilbur
- Washington, D.C. 20555 l Atomic Safety and Licersing ;
/ ppeal Board Adjudicatory File 1 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing l Fif th Floor (North Tower) Board Panel Docket East-West Towers U.S. Nuclear Regulatory Commission 4350 East-West Highway Washington, D.C. 20555 Bethesda, MD 20814 Edwin J. Reis. Esq. * {
Dr. Jerry R. Kline
- U.S. Nuclear Regulatory Commission !
Atomic Safety and Licensing One White Flint North ,
Board 11555 Rockville Pike !
U.S. Nuclear Regulatory Commission Roc)".'ille, MD 20852 East-West Towers, Rm. 427 i 4350 East-West Hwy. l Bethesda, MD 20814 t
0 2-Herbert H. Brown, Esq.
- Stephen B. Latham, Esq.
- Lawrence Coe Lanpher, Esq. Twomey, Latham & Shea Karla J. Letsche, Esq. 33 West Second Street Kirkpatrick & Lockhart P.O. Box 298 South Lobby - 9th Floor Riverhead, New York 11901 1800 M Street, N.W.
Washington, D.C. 20036-5891 Mr. Philip McIntire Federal Emergency Management Fabian G. Palomino, Esq.
- Agency Richard J. Zahnleuter, Esq. 26 Federal Plaza -
Specla! Counsel to the Governor New York, New York 10278 Executive Chamber Room 229 Jonathan D. Feinberg, Esq.
State Capito! New York State Department of
- Albany, New York 12224 Public Service, Staff Counsel Three Rockefeller Plaza Alfred L. Nardelli, Esq. Albany. New York 12223 Assistant Attorney General 120 Broadway Ms. Nora Bredes Room 3-118 Executive Coordinator ,
New York, New York 10271 Shoreham Opponents' Coa 11 tion !
105 East Main Street !
George W. Watson, Esq.
- Smithtown, New York 11787 William R. Cumming, Esq.
Federal Emergency Management Evan A. Davis, Esq.
Agency Counsel to the Governor 500 C Street, S.W., Room 840 Executive Chamber Washington, D.C. 20472 State Capitol Albany, New York 12224 Mr. Jay Dunkleberger New Yrre~ tate Energy Office E. Thomas Boyle. Esq.
Agen * . i ng 2 Suffolk County Attorney Empit- ' Plaza Building 158 North County Complex Alba'. i <k 12223 Veterans Memorial Highway Hauppauge, New York 11788 Dr. Monroe Schneider North Shore Committee P.O. Box 231 l Wading River, NY 11792 l
l y/14$, dM?M James N. Christman Hunton & Williams /
707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: December 1,1988 l