Text

Decision ALAB-836,reversing ASLB Third Partial Initial Decision LBP-85-14 Re Reasonable Assurance of Adequate Number of Bus Drivers to Evacuate Students.Served on 860508
	ML20197B026
Person / Time
Site:	Limerick
Issue date:	05/07/1986
From:	Shoemaker C; NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	; Office of Nuclear Reactor Regulation
References
	CON-#286-087, CON-#286-87 ALAB-836, LBP-85-14, OL, NUDOCS 8605120442
	Download: ML20197B026 (80)
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION h

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pgY'? 75 ATOMIC SAFETY AND LICENSING APPEAL BOARD nog ga R.MRcu s:.

,D Administrative Judges:

8 TIh Christine N.

Kohl, Chairman May 7, 1986 N

Gary J.

Edles (ALAB-835)

Dr. Reginald L. Gotchy SERVED h%y T($8(i

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In the Matter of

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PHILADELPHIA ELECTRIC COMPANY

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Docket Nos. 50-352 OL

)

50-353 OL (Limerick Generating Station,

)

Units 1 and 2)

)

David Stone, Pottstown, Pennsylvania (with whom Phyllis Zitzer and Maureen Mulligan, Pottstown, Pennsylvania, were on the brief), for intervenor Limerick Ecology Action, Inc.

Robert L.

Anthony, Moylan, Pennsylvania, intervenor pro se and for intervenor Friends of the Earth.

Robert M.

Rader, Washington, D.C.

(with whom Troy B.

Conner, Jr., and Nils N.

Nichols, Washington, D.C., were on the brief), for applicant Philadelphia Electric Company.

Zori G.

Ferkin, Harrisburg, Pennsylvania, for the Commonwealth of Pennsylvania.

Henry J. McGurren (with whom David F.

Hassell and Nathene A. Wright were on the brief) for the Nuclear Regulatory Commission staff.

DECISION In its third partial initial decision in this operating license proceeding, the Licensing Board discussed the numerous issues raised concerning t,he adequacy of the 8605120442 860507 PDR ADOCK 05000 2

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><^M offhite emergency plan for the Limerick facility.1 The

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U; Bodrd resolved all issues in favor of applicant Philadelphia

- Electric Company (PECo), subject to two conditions.

See LBP-85-14, 21 NRC 1219 (1985).

Intervenors Limerick Ecology Action (LEA) and Robert L. Anthony / Friends of the Earth (Anthony / FOE) appeal the Board's decision.

On the other hand, PEco, the Commonwealth of Pennsylvania, and the NRC staff urge affirmance.3 For the reasons set forth below, 1 Appeals raising technical, environmental, and onsite emergency planning issues were addressed at earlier stages of the proceeding.

See ALAB-785, 20 NRC 848 (1984);

ALAB-804, 21 NRC 587 (1985); ALAB-819, 22 NRC 681 (1985).

The Commission has declined review of each of these decisions.

See Notices from the Secretary (March 1, 1985; May 31, 1985); CLI-86-5, 23 NRC (March 20, 1986).

T Appeals from the Licensing Board s fourth partial initial decision, concerning the adequacy of the emergency plan for the State Correctional Institution at Graterford (which lies within Limerick's emergency planning zone), are pending.

Another intervenor, Air and Water Pollution Patrol (AWPP), also filed a notice of appeal, but never submitted a supporting brief, as required by the Commission's Rules of Practice, 10 C.F.R. S 2.762(b).

AWPP is therefore in default, and its appeal from the Board's third partial initial decision is dismissed.

See 10 C.F.R.

S 2.707; Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-461, 7 NRC 313, 315 (1978); Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-140, 6 AEC 575 (1973).

We therefore need not decide whether AWPP -- which did not participate in this part of the proceeding before the Licensing Board -- has standing to appeal LBP-85-14.

We are compelled to note at the outset that the state of the appellants' briefs, as well as the record, in this proceeding made appellate review a formidable task.

Appellants' briefs are poorly organized and hard to follow.

(Footnote Continued)

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3 we reverse pnd remand for further action on one issue (schoolib'us driver availability), and otherwise affirm LBP-85-14, subject't'o an additional condition concerning traffic control.4 '

(Pootnote Continued)

Much of LEA's brief, in particular, amounts to a " cut and paste" collection of its proposed findings and portions of other earlierifilings.

LEA also relies on exhibits that were never offered into evidence.

It mentions, in passing, advers.e-Licensing Board rulings, but fails to object specifically to them.

We~are sensitive to the limited rescuices of many intervenors, but we can address only those argumenta that are articulated lucidly enough for us to l comprehend.

j jThe other parties are not blameless, insofar as the a state,of the record 13 concerned, either.

Applicant's counsel, in particular, made numerous, frivolous objections i

to testimony, leading other counsel to do likewise.

This served only to waste valuable time and to freight an already lengthy transcript With pointless, distracting material.

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See infra p.

3 5,.

Further, the prefiled testimony of some n

partiesvwas unpaginhted and assembled in a disorganized and 1

confusing manner.?

Compounding these problems was the lack of care taken o

to' preserve the Vecord in tt:is case..Only about 65 of the 207 exhibits tendered were ever submitted to us and to the Commission's Secretary, the official custodian of the record, and not all exhibits were, listed in the appendix to the Licensing Board's decision.

Eveistually Licensing Board personnel located at least one copy of all but a few exhibits; those not located fortunately were not essential to our review.

Equally, if not more, important, a licensing

u board's citations to the record should be correct and accurately reflect the overall gist of the material, 5

relevant, and noncumulative evidence.

In ALAB-RO8, 21 NRC 1595 (1985), we denied LEA's motion for a st'ay of the Board's tl:ird partial initial dehision.

The.Commissiori made a similar determination in CL1b85-13, 22 MRC,I (1985).

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I.

Reliability of the Evacuation Time Estimates The Licensing Board received extensive evidence on various issues concerning the Evacuation Time Estimates (ETE) for the Limerick plume emergency planning zone (EPZ).

The purpose of an ETE is to provide information (i.e., the time required to evacuate the EPZ and any unusual problems) so that emergency coordinators can decide what protective actions (such as sheltering or evacuation) might be necessary.

The Commission's regulations, however, do not set any particular time limits for evacuation of the EPZ.

Cincinnati Gas & Electric Co. (Wm.

H.

Zimmer Nuclear Power Station, Unit No. 1), ALAB-727, 17 NRC 760, 770-71 (1983).

LEA contention 23 generally challenged the reliability of the Limerick ETE.

The Board concluded, however, that the ETE study is consistent with the NRC's regulatory requirements and guidance and is reasonably accurate.

See LBP-85-14, 21 NRC at 1236-50.

On appeal, LEA raises a 5 For a general discussion of the emergency planning requirements for a nuclear facility, see Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

ALAE-832, 23 NRC 135, 143-45 (1986).

6 This contention states:

The draft county plans are deficient because they do not contain reliable evacuation time estimates.

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number of objections to the Board's findings and conclusions in this regard.

A.

Identification of Transport-Dependent Population Emergency planning officials from Montgomery, Chester,-

and Berks Counties conducted a survey to determine the special needs of the resident population within the Limerick emergency planning zone.

The survey was mailed to every home or building in the EPZ that receives a PECo electric bill.

It asked the recipients to indicate, via an enclosed pre-addressed, postage prepaid envelope, if anyone in their householdn would have a special need (such as transportation) in the event of an emergency.

The names, addresses, and telephone numbers of such individuals were then collected and filed with the appropriate local emergency planning center.

The Licensing Board concluded that these survey data are accurate and can properly be used for planning purposes.

Id. at 1245-47.

See also ALAB-819, 22 NRC at 711-15.

But the difference between that critical element of emergency planning and the designation of several more traffic control points is manifest.

LEA does state that it would " cross-examine the relevant authorities as to the intent to implement such measures and the extent of preparation."

LEA's Brief at 52.

But these matters go well beyond the scope of the contention.

See supra note 19.

Even Dr. Urbanik, on whose testimony LEA rolles, was not willing to identify the specific locations of the traffic control points he urged be added.

Tr. 19,281.

At oral argument, LEA elaborated somewhat on what it (Footnote Continued)

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24.

i We do agree with LEA and Anthony / FOE, however, in one J

respect.

The record (particularly Dr. Urbanik's testimony)

.also demonstrates.a need for more traffic control in the other area specified in LEA contention 24/ FOE contention 1 i

-- i.e.,

the Route 100 corridor near Marsh Creek State Park and Exton.

See LEA's Brief at 37, 39, 47, 49; Anthony / FOE l

O Brief at 4-5.

Specifically, Dr. Urbanik testified as to the need for traffic control at the Downingtown interchange (Exit 23) of the Pennsylvania Turnpike.

Tr. 19,229.

He explained that, without access control, traffic cvacuating i

south via Route 100 could enter the turnpike at Downingtown I

(Footnote Continued)-

would have pursued.

See App. Tr. 12-17, 99.

It referred to a study, but that document was properly excluded from the record.

See supra note 22.

LEA also indiceted that it would have questioned a consultant who assisted in designating the additional 17 traffic control points.

But, l

again, it is not clear what meaningful information LEA hoped to elicit.

It is worth noting, in this connection. that LEA did not pursue any particular cross-examination with regard to the hundreds of traffic control points, inside and outside the EPZ, already designated in the county emergency plans.

See Applicant Exh. E-1, Berks County RERP, Appendix K-2; Applicant Exh.

E-2, Chester County RERP, Annex K, Appendix 1; Applicant Exh. E-3, Montgomery County RERP, t

Appendices K-2, K-4; ETE at 7-2 to 7-6, 7-8 to 7-15.

Without specifics from LEA, it is thus difficult to perceive the likely nature of its cross-examination on the additional points.

O Some of Anthony / FOE's argument concerns the asserted need for control of through traffic in areas other than those specified in the contention and litigated below.

These arguments cannot be properly raised for the first time on appeal.

See ALAB-819, 22 NRC at 699 n.20; ALAD-828, 23 NRC 13, 20 (1986).

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x 25 and travel east.

The next turnpike interchange is Valley Forge, where other evacuation traffic will be directed to enter the turnpike (designated as Interstate 276 at this point) and to continue east.

See Commonwealth Exh. E-9, Evacuation Plan Map.

Dr. Urbanik thus sees a conflict in the demands that could be placed on this part (Interstate 276) of the turnpike and a corresponding flaw in the ETE's assumption that this roadway has adequate capacity.

He therefore suggested that some measure of traffic control be considered for the Downingtown interchange area.

Tr.

19,234-39.

The Licensing Board's decision briefly addresses the issue of traffic control at the Downingtown interchange.

I See LBP-85-14, 21 NRC at 1259.

The Board cites Mr. Klimm's testimony that PEMA, the Pennsylvania Department of Transportation (PennDot), and county of ficials believe most vehicles will continue evacuating south on Route 100 and will not enter the turnpike.

In their view, persons who nevertheless do enter the turnpike east at Downingtown would not affect the evacuation time estimate.

See Tr. 13,953-54, 14,071-74, 14,082, 17,056; Klimm, fol. Tr. 13,794, at 3-4.

The Board, however, fails to discuss Dr. Urbanik's contrary testimony.

See Tr. 19,229, 19,234-39.

We find persuasive his concern that, because the turnpike is an obvious choice for long-distance travel, many will opt for that route, rather than continuing on Route 100 south.

See Tr. 19,239.

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26 Further, this view is not effectively refuted by the other cited testimony, which clearly recognizes the possibility of use of the turnpike option at Downingtown.

We therefore conclude that, just as Dr. Urbanik's testimony provided the basis for requiring more traffic control at Valley Forge / King of Prussia, it supports LEA's argument of a need for traffic control at Downingtown.

Accordingly, as a condition for continued operation under its already-issued operating license, we direct PECo to take i

i steps to establish in the appropriate emergency plans traffic control measures in the area of Route 100 and the Downingtown interchange of the Pennsylvania Turnpike.

As in the case of the other 17 additional points, the Director of NRR is to verify that this action is taken within a reasonably expeditious period of time.29 B.

Scope of the EPZ The Commission's regulations provide that

[g]enerally, the plume exposure pathway EPZ for i

nuclear power plants shall consist of an area about 10 miles (16 km) in radius.

The exact size and configuration of the EPZs i

surrounding a particular nuclear power reactor shall be determined in relation to local emergency

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response needs and capabilities as they are 29 We leave to the discretion of the involved federal (FEMA and NRC), state, and local officials the decision as to the type of traffic control desirable at Downingtown.

For example, permitting entry only to the turnpike went l

might well be preferable to totally denying access to the turnpike at this interchange.

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27 affected by such conditions as demography, topography, land characteristics, access routes, and jurisdictional boundaries.

10 C.P.R.

S 50.47 (c) (2).

Both LEA and Anthony / FOE argue that the Limerick EPZ should be enlarged to include Valley Forge National Park and Marsh Creek State Park.

LEA's Brief at 54-55; Anthony / FOE Brief at 2-3.

Except for a small portion of Valley Forge already included, both parks lie just outside the EPZ.

See Commonwealth Exh.

E-9.

Intervenors' arguments stem from LEA contention 24/ FOE contention 1, which proposed including these park areas in the EPZ as an alternative to additional traffic control and direction.

See supra note 19.

Because added traffic control is now required for both the Valley Forge / King of Prussia area and at Downingtown in the Route 100 corridor near Marsh Creek, LEA's and Anthony / FOE's arguments are moot.

Even if they were not, however, we see no deficiencies in the scope of the EPZ.

The Limerick EPZ was defined by state and local emergency planning officials in accordance with 10 C.F.R. S 50.47 (c) (2).

Intervenors have failed to show why the judgment of these experts is wrong or not due the deference contemplated by the Commission's regulations.

See 45 Fed. Reg. 55,402, 55,406 (1980) ("The exact size and shape of each EPZ will be decided by

28 emergency planning officials after they consider the specific conditions at each site").30 LEA and Anthony / FOE also do not explain what. formal inclusion of these parks in the EPZ would accomplish.

There is no question that the emergency planners considered both areas in determining evacuation routes.

They concluded, however, that traffic originating there would not significantly affect the estimated evacuation time for vehicles leaving the EPZ.

Further, the National Park Service (NPS) has expressed its willingness to cooperate during an emergency and to aid visitors to Valley Forge in exiting the park if necessary.

See, e.g., Tr. 14,567-69, 14,594, 14,679-86.

See also LBP-85-14, 21 NRC at 1255-66.31 Anthony / FOE, however, raise several separate issues relating to the scope of the EPZ.

They allege that FEMA has not fulfilled the responsibility to consult with state and local governments about.the exact size and configuration of 0 It is interesting to note that Dr. Urbanik -- upon whom LEA otherwise relies -- testified that, in his judgment, there was no need to include Valley Forge National Park in the EPZ.

Tr. 19,264-65.

31 At oral argument, LEA referred to the need for consistency and NPS involvement in the process.

App. Tr.

27-31.

With respect to the latter point, we explain at infra pp. 31-32, that NPS was involved in the emergency planning process.

Further, as noted above, NPS is willing to cooperate with state and local officials during any emergency, thus avoiding problemn of " inconsistency."

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29 the EPZ, imposed by 44 C.F.R.

S 350.7(b).

Similarly, they assert that, as specified in 44 C F.R.

S 350. 3 (d), FEMA has not consulted with the National Park Service to determine the latter's view on including Valley F rge in the EPZ.

Anthony / FOE rely on two letters from regional officials of FEMA and NPS, stating (in response to Freedom of Information Act requests) that they had no information in their files about the establishment of the Limerick EPZ.

Anthony / FOE Brief at 1-3, Attachments.

Anthony / FOE's arguments are without merit.

First, while FEMA's findings constitute rebuttable presumptilons on the adequacy of state and local emergency plans (10 C.F.R.

S 50.47 (a) (2)), it is not the NRC's function to monitor FEMA's work for compliance with that agency's own i

regulations.

See Memorandum of Understanding Between Federal Emergency Management Agency and Nuclear Regulatory 2 44 C.F.R. S 350.3(d) refers to FEMA's ongoing "coopera'.ive effort with State and local governments and other Federal agencies in the development of State and local plans and preparedness to cope with the offsite effects resulting from radiological emergencies at commercial nuclear power facilities."

33 Although the letters on which Anthony / FOE rely raise questions about the record keeping practices of FEMA'and NPS, they are not part of the record on appeal in this case.

Thus, they cannot provide a basis for any ruling hete.

ALAB-828, 23 NRC at 20.

Even if we could properly consider the letters, however, they are not significant enough to changa the outcome.

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30 Commission, 50 Fed. Reg. 15,485 (1985) [hereafter, " FEMA /NRC MOU"], which sets forth the respective emergency planning responsibilities of, and the areas of cooperation between, FEMA and the NRC.34 In any event, there is nothing to suggest that FEMA did not comply with its own rules in this case.

Pursuant to 44 C.F.R.

S 350.7 (b),

[t]he exact size and configuration of the EPZs surrounding a particular nuclear power facility shall be determined by State and local governments in consultation with FEMA and NRC taking into account such local conditions as demography, topography, land characteristics, access routes and local jurisdiction boundaries.

[ Emphasis added.]

FEMA stresses "the intention of this section to encourage the exercise of local planning responsibility, judgment, and decisionmaking."

48 Fed. Reg. 44,332, 44,335 (1983).

This is precisely what occurred with regard to Limerick.

State and local emergency planning and transportation otticials initially defined the boundaries of the EPZ.

See, e.g.,

Tr.

19,495-97.

FEMA subsequently reviewed their work.

Tr.

20,234.

As Richard Z.

Kinard, FEMA's project officer for Limerick, explained:

34 This Memorandum of Understanding supersedes that adopted in 1980 (45 Fed. Reg. 82,713) and cited by the Licensing Board (LDP-85-14, 21 NRC at 1228-29).

The differences in the two memoranda, however, are not pertinent to our discussion.

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We, a't PEMA, work with various emergency mar.agement organizations, including PEMA, counties, municipalities, and school districts

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We know of the expertise of the

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emergency planners in.these different fields.

We respect their abilitie:s in the field of emergency i

planning.

We feel that :the individuals at the county, at the state, and at the municipalities have a much clearer feeling as to the local W,

conditions in the arean surrounding nuclear power plants than we,do.

And we are not deferring 4'

judgment to th4m, We honor their judgment and believe their expertise in this area

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is well warranted.

Tr. 20,I43.

See also Tr. 20,242, 20,246.35 The record is likewise clear that the National Park Service was consulted with re' ard to the Limerick emergency g

plan.

As t'he Licensing Board observed, NPS representatives

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met approximately four times with state and county officials "to-discuss. notification procedures and the responsibility of the National Park Service in facilitating traffic flow through the park as it leaves the EPZ."

LBP-85-14, 21 NRC at 1261.g See Tr. 14,563, 14,656, 14,666-69, 14,679, b

14,680 81.

Presumably, this provided NPS the opportunity to seek inclusion of Valley Forge within the EPZ, but it' chose 0

not to do so.

Indeed, it is clear that the Park Service is jwilling to defer to the judgment of the expert emergency 9

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35 Anthony / FOE complain, in this connection, that the Licensing Board focused on NUREG-0654-too much, to the Oc exclusion of 44 C.F.K. S 350.7.

Antliony/ FOE Brief at 1.

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This argument is frivolous.

The Board clearly recognized the proper role of the guidance contained in NUREG-0654.

,f LBP-85-14, 21 NRC at~1228.

See supra p.

7.

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t 32 planners on that score.

See Tr. 14,659-60.

Thus, there is no basis for Anthony / FOE's suggestion that NPS had no input in the planning process, particularly insofar as the scope of the EPZ is concerned.

C.

Alleged Procedural Errors In connection with their combined contention on traffic congestion outside the EPZ, LEA and Anthony / FOE claim that several of the Licensing Board's procedural rulings were erroneous and prejudiced them.

First, they both object generally to the Board's consolidation of their presentations.

See LDP-84-18, 19 NRC 1020, 1069 (1984).

In this regard, LEA complains that it had no opportunity for

" cross-examination" of Mr. Wagenmann (see supra note 22),

following Anthony / FOE's direct examination of this

.intervenor-sponsored witness.

LEA's Brief at 41.

On the other hand, Anthony / FOE complain about the designation of LEA as " lead intervenor" on the traffic congestion issue.

Anthony / FOE Brief at 5.

Anthony / FOE also object to the time limits on cross-examination imposed by the Licensing Board.

I They contend that as a consequence of these " abuses of the judicial process," the record is incomplete and they have 36 LEA also makes an argument about its Exh. E-56, but i

its point is unintelligible.

In any event, the Licensing Board properly rejected LEA Exh. E-56.

See supra note 22.

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b 33 been prejudiced.

Id. at 2, 5.37 See also LEA's Brief at 52, 68.

The Licensing Board rulings in question, however, are fully in accordance with the Commission's regulations and practice.

A board's consolidation, on its own initiative, of parties with "substantially the same interest

. and who raise substantially the same questions" is explicitly authorized by the Commission's Rules of Practice, 10 C.F.R.

S 2.715a.38 Consolidation can, of course, be improper if it results in prejudice to an intervenor.

Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 455 (1981).

But the generalized complaints of LEA and Anthony / FOE fail to establish any prejudice in this case.

See generally Waterford, 17 NRC at 1096.

The Licensing Board's imposition of time limits on intervenors' cross-examination is similarly permissible under the Rules of Practice.

In addition to conducting a fair and impartial hearing, a board has the duty to "take appropriate action to avoid delay" and to "[r]egulate the 37 Anthony / FOE refer us to their several earlier appeals (which we dismissed as interlocutory) raising these same objections.

See, e.g., Appeal by R. L. Anthony / FOE (December 10, 1984); Appeal from R. L. Anthony / FOE (January 31, 1985).

We have thus considered these arguments in reaching our decision here.

LEA and Anthony / FOE do not dispute the commonality of their interests.

34 course of the hearing."

10 C.F.R. S 2.718.

See also Statement of Policy, 13 NRC at 453.

It should admit only evidence that is relevant, material, reliable, and not unduly repetitious.

10 C.F.R. S 2.743 (c).

Further, a board may (c) Take necessary and proper measures to prevent argumentative, repetitious, or cumulative cross-examination, and (d) Impose such time limitations on arguments as

[it] determines appropriate, having regard for the volume of the evidence and the importance and complexity of the issues involved.

10 C.F.R. S 2.757.

Although the rules do not expressly refer to the imposition of time restrictions on witness examination, we think this is clearly among the necessary tools an NRC adjudicatory board possesses to regulate the course of a hearing -- again, providing there is no prejudice to the rights of any party.39 Here the Board thoroughly sets forth its reasons for restricting -- after 14 of a total 37 days of hearing -- the direct and cross-examination of witnesses by all the 39 The federal courts have approved the use of time limits on cross-examination in complex, lengthy litigation, like we have here.

See, e.g.,

MCI Communications Corp. v.

American Telephone and Telegraph Co.,

708 F.2d 1081, 1170-72 (7th Cir.), cert. denied, 464 U.S. 891 (1983); Defenders of Wildlife, Inc. v.

Endangered Species Scientific Authority, 659 F.2d 168, 181-82 (D.C. Cir.), cert. denied, 454 U.S.

963 (1981).

Cf. International Harvester Co. v.

Ruckelshaus, 478 i

F.2d 615, 631 (D.C. Cir. 1973).

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35 parties.

The Board explains that intervenors were not well-prepared for the hearing and failed to comply with many Board evidentiary rulings and schedules.

Despite being afforded some leeway, intervenors' lay representatives nonetheless continued to ask improper, repetitive, or unfocused questions of many witnesses.

LBP-85-14, 21 NRC at 1233-36.

Anthony / FOE fail to refute any aspect of this Board discussion or to establish actual prejudice (for example, by describing the outcome-determinative testimony that was allegedly precluded by the time restrictions).

See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),

ALAB-813, 22 NRC 59, 75-76 (1985); Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360, 376-77 (1985).

To be sure, the few transcript references cited by Anthony / FOE (e. g., Tr. 17,456, 20,248) show a rather abrupt termination of their cross-examination.

Moreover, our own reading of the transcript reveals a hearing that the Board allowed to be peppered at times with frivolous time-consuming objections by all counsel to intervenors' attempts to question certain witnesses.

See South Texas, 21 NRC at 378.

On the other hand, the record overall is testament to the Board's confessed frustration in

36 its efforts to conduct an orderly, productive hearing.40 In this circumstance, we will not second guess the Board:

it did not abuse its discretion in imposing time limits on witness examination.

III.

Implementation of Local and County Plans A.

Bucks County In its contention 3, LEA alleged that "[t]he Montgomery County RERP [ Radiological Emergency Response Plan] fails to provide reasonable assurance that the public will be adequately protected in that the Bucks County Support Plan, which is essential to the workability of the MontCo RERP, may not be approved."

LBP-85-14, 21 NRC at 1402.41 The 40 The unfocused and repetitive questioning by intervenors at the hearing resembles their briefs on appeal, lending further credence to the Licensing Board's action.

See supra note 3.

LEA contention 3 states, in full:

The Montgomery County RERP fails to provide reasonable assurance that the public will be adequately protected in that the Bucks County Support Plan, which is essential to the workability of the MontCo RERP, may not be approved.

The present Board of Commissioners have (sic] little knowledge of the contents and implications of the Bucks County Support Plan.

There is no assurance that the County will assume the responsibilities assigned to it in the Support Plan, rather than use County resources to help Bucks County people first.

The Montgomery County Plan relies on the Support Plan in at least these ways:

(Footnote Continued)

37 Licensing Board, however, found otherwise and concluded that there is reasonable assurance that, in a radiological emergency at Limerick, Bucks County (which lies outside the EPZ) would implement its current draft plan and support Montgomery County's emergency efforts.

Id. at 1407.

Although the Bucks County Commissioners have withheld their formal approval of the support plan pending the outcome of this and other litigation involving Limerick, the Board noted that the County has had an emergency plan for over 15 years and that it had earlier undertaken certain responsibilities in connection with the 1979 accident at Three Mile Island.

The Board also based its reasonable assurance finding on the largely favorable results of an emergency exercise in Bucks County in November 1984.

Despite questions raised by County Commissioners about the impact of thousands of Montgomery County evacuees on the safety of Bucks County residents, the Licensing Board was

-(Footnote Continued) 1.

facilities for relocation and mass care of evacuees 2.

augmentation of emergency workers, including use of county resources, on a continuous 24-hour basis 3.

See attachment " Excerpts and comments on the Bucks County Draft Evacuation Plan" for additional areas of support and interface.

It is contended that without the approval of Bucks County Support Plan, the MontCo RERP is unworkable as it now stands.

[ Emphasis added.]

38 l

convinced by the testimony of state and Bucks County emergency officials that the County would and could cooperate in the event of an emergency, in accordance with the current draft plan.

Id. at 1402-07.

On appeal, LEA makes numerous arguments ostensibly

' directed to the Licensing Board's disposition of contention 3.

It contends that the adequacy of the Bucks County Support Plan in certain areas has not been demonstrated --

specifically, the treatment of contaminated individuals at mass care centers; the identification of, and the execution of letters of agreement with, the schools designated to serve as such centers; the number of individuals and amount of equipment allocated for traffic control and various other emergency support activities; and the ability of the plan to accommodate spontaneous evacuation (see supra note 22) by Bucks County residents.42 LEA also complains that the November 1984 exercise on which the Licensing Board relied was too limited.

LEA stresses that the Bucks County Commissioners have not yet approved the Support Plan.

In its view, the Board should have given this greater weight than the testimony of PEMA and other county officials.

l With regard to the last item, LEA objects to the Board's reference to testimony indicating that, historically, spontaneous evacuation has not been a problem in non-radiological emergencies.

L L-

,~. _. -

39 Finally, LFJ4 essentially argues that Bucks County should be a " risk" county, for which formal emergency planning should be undertaken, rather than limiting the county's role to support activities.

LEA's Brief at-2-15.

Plainly, the majority of LEA's arguments amount to an attempt to expand the scope of contention 3 well beyond its bounds.

Although the contention is lengthy, by any reasonable reading it raises but one very narrow issue:

whether Bucks County is likely to approve the emergency support plan and assume the responsibilities it has thereunder.43 It does not challenge the adequacy, scope, or content of the Bucks County plan.

See supra note 41.

Any doubt that the focus of the contention is on the likelihood of Bucks County's approval of the plan is dispelled by a review of how LEA contention 3 came to be admitted for litigation.

When LEA initially proffered the contention, the Licensing Board observed that LEA was not claiming any deficiency in the Bucks plan itself; rather, without a plan adopted by Bucks (a support county),

Montgomery County's plan would be unworkable.

LBP-84-18, 19 NRC at 1041-42.

The Board decided to defer ruling on the contention at that time because 43 l

The stated purpose of this plan is "to provide for the housing, feeding, medical and other social service needs (Footnote Continued) r

40

[tlo admit [ contention 3] now might be to burden the proceeding with litigation which, as LEA readily grants (Tr. 7647, 7665, 7674) may prove unnecessary.

Indeed, we think that something short of formal adoption could make the litigation unnecessary, for according to the way we construe

[this contention], LEA seeks no more than reasonable assurance the plan [] will be adopted.

Tr. 7672.

That is all we would seek.

Id. at 1043 (emphasis added).

The Board gave LEA the opportunity to resubmit the contention later, when the various emergency plans in question would be more complete.

Id. at 1043-44.

LEA neither challenged the Board's characterization of its contention 3 nor voiced concern about the adequacy of any provision of the Bucks County plan.

After thus being put on notice as to how the Board interpreted the intent of contention 3, LEA later resubmitted it, with wording identical to the original version.

The only difference was the addition of a reference to a July 17, 1984, letter from two Bucks County Commissioners, expressing their reluctance to further participation by that county in emergency planning and testing for Limerick.

Compare LEA Off-site Emergency Planning Contentions (January 31, 1984) at 8, with LEA's Respecification of Off-site Emergency Planning Contentions (Footnote Continued) for a maximum of 24,440 persons evacuated from Montgomery County in response to an incident at the Limerick Generating Station."

Applicant Exh. E-4 at 7.

8

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41 (October 1, 1984), LEA-3 (pages unnumbered and out of order).

This' time the Board admitted the contention, noting that it was not then clear whether there was " reasonable assurance that the county ultimately will adopt the relevant

-plans."

Licensing Board Memorandum and Order of October 26, 1984 (unpublished), at 5.

Once again, LEA failed to challenge the Board's construction of contention 3 or to attempt to expand it to encompass more than whether the Bucks plan would likely be approved.

Thus, to the extent LEA's arguments on appeal challenge the adequacy of the Bucks County plan, they are impermissible at this late stage and necessarily fail.44 As we pointed out at an earlier phase of this proceeding,

"[p]erhaps LEA sought to litigate something else, but it is bound by the literal terms of its own contention."

ALAB-819, 22 NRC at 709 (footnote omitted).

LEA's arguments that properly relate to the Board's

" reasonable assurance of approval" finding fail as well.

For example, the Licensing Board did not err in giving weight to the participation of Bucks County in the November 1984 emergency exercise.

See LBP-85-14, 21 NRC at 1403.

44 Because the details of the Bucks Support Plan were not challenged and litigated, it is not surprising that LEA has failed to cite any concrete evidence in this record supporting its claims of significant deficiencies in that plan.

o 42 4

Certainly, if Bucks County had not participated in this exercise (after failing to participate in another exercise four months earlier), that fact would have been of probative value in determining the merits of LEA contention 3.

It is therefore entirely proper for the Board to have considered the county's participation in the November exercise as some.

4 evidence of its willingness to implement its Emergency Support Plan.

Although the FEMA witnesses were unable to state definitively that Bucks County would implement its

~ plan, they regarded its participation in the exercise as an i

" optimistic" sign, and concluded that the County had adequately demonstrated its ability to perform the support functions called for by the plan.

Tr. 20,169, 20,175-76; FEMA Update, fol. Tr. 20,150, at first page hand-numbered 2.45 The County's own Director of Emergency Services, Charles McGill, similarly concluded that the exercise showed both-the capability and willingness of the participants to perform their emergency duties.

Although the exercise was-limited, it served its intended purpose and gave him no l

D 45 FEMA identified only one deficiency in Bucks County's participation, classified as " Category B," a lesser deficiency.

See FEMA Exh. E-5 at 27-29, 35.

i

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43 cause to doubt that the County could manage a full-blown 1.

exercise.

Tr. 20,386-87.46 LEA relies heavily on the fact that the Bucks County Commissioners have not yet approved the Support Plan and argues that the Licensing Board should have given their concerns greater weight.

We disagree.

In the first place, the Board indicated at the time LEA initially proffered contention 3 that formal adoption of the plan was not necessary -- only reasonable assurance of its eventual adoption and implementation.

LBP-84-18, 19 NRC at 1043.

See supra pp. 39-40.

Similarly, the Board later determined that execution-of a Memorandum of Understanding between the

[

County and PEMA concerning the former's support of emergency response operations (LEA Exh. E-61) is not a prerequisite for either plan approval or the Board's reasonable assurance findings.

LBP-85-14, 21 NRC at 1405.

See also id at 1229-31..The Board's conclusions are fully consistent with our cases holding that offsite emergency plans need not be

" final" before a board can make the reasonable assurance finding required by 10 C.F.R. S 50.47 (a) (1).

See, e.g.,

j 46 Contrary to LEA's suggestion, the November 1984 exercise was not intended as a full-scale test of the plan.

As explained in FEMA's report, its purpose was to supplement the earlier exercise.

Id. at iii.

Moreover, the NRC's regulations do not require that exercises cover all aspects of an emergency plan at once.

See 10 C.F.R. S 50. 47 (b) (14).

See also Tr. 15,874.

But to compound the problem, another witness testified that the unmet bus need for the Owen J.

Roberts district is overstated (Tr. 16,941), and other parts of the record confirm it.

Dr. Roy C. Claypool, Superintendent of the Owen J.

Roberts School District, testified that the district's (Footnote Continued)

61 500 buses are identified in the county RERP for potential use in an emergency.

Chester County / Commonwealth Exh. E-1 at I-1-2.

At the time of the hearing there were'already written agreements for about 100 buses and oral agreements for another 18; PEMA subsequently received confirmation of written agreements with two more companies for an unspecified number of buses.

See LBP-85-14, 21 NRC at 1280; FEMA Memorandum (May 21, 1985) at 2.

Moreover, the Southeastern Pennsylvania Transportation Authority (SEPTA) has expressed a willingness -- albeit not yet in a formal agreement -- to provide at least 100 vehicles to Chester County in the event of an emergency.

LBP-85-14, 21 NRC at 1281-82.

The record thus demonstrates several likely sources of numerous vehicles from which Chester County could draw, if necessary, to satisfy its unmet need of 60 school buses.61 Consequently, we agree with the Licensing Board's (Footnote Continued) enrollment is approximately 3200-3400.

Tr. 15,863.

Using 72-passenger buses to which he referred (Tr. 15,925) and simple arithmetic, approximately 48 such vehicles would therefore be needed to evacuate 3400 students.

Owen J.

Roberts has 43 buses available under contract with the Gross Bus Company (Tr. 15,863, 15,926), leaving a shortage of 5 --

consistent with Mr. Campbell's testimony as reported at Tr.

19,980.

We therefore conclude that Chester County's unmet need for school buses is 60.

61 Although LEA suggests that letters of agreement should state the specific number of buses to be provided (see LEA's Brief at 28), it does not argue that such formal agreements are a prerequisite to the Board's finding of (Footnote Continued)

~

62 ultimate conclusion.that there is reasonable assurance of enough buses to evacuate schools in Chester County.62 2.

Whether there is reasonable assurance of an adequate complement of persons willing to drive these vehicles in an emergency, however, is quite another matter.

The Licensing Board's affirmative answer to that query is based on several factors.

See id. at 1319-26.

None withstands scrutiny.

(Footnote Continued) reasonable assurance of a sufficient number of buses.

Compare Waterford, 17 NRC at 1105-06.

62 Our conclusion is based on our review of the record and decision overall and should not be construed as an affirmation of all of the Licensing Board's discrete

-findings in this regard.

For example, the Board notes that the Phoenixville School District reported an unmet need of 17 buses.

LBP-85-14, 21 NRC at 1284.

See supra note 60.

Citing Tr. 15,040-41, the Board found, however, that the Gross Bus Company "has sufficient resources to provide for the needs of the Phoenixville School District."

LBP-85-14, 21 NRC at 1284.

LEA points to other parts of the record that seem to contradict this finding.

LEA's Brief at 27.

The portion of the transcript on which the Board relies shows that Gross provides the usual transportation for the Phoenixville public and some private schools, and that discussions with the company were under way in connection with additional emergency transportation needs.

It does not, however, support the Board's strong suggestion that Gross could and would meet Phoenixville's " unmet need" of 17 buses.

See Tr. 15,040-41.

Compare Tr. 15,102-03.

On the other hand, Gross has 118 buses for use in Chester County school districts.

Chester County / Commonwealth Exh. E-1 at I-1-2.

Presumably, this includes 40 for Phoenixville (13.

at N-3-1) and 43 for Owen J. Roberts (Tr. 15,863).

It can reasonably be inferred that at least some of the remaining 35 boaes would be available to satisfy the unmet needs of both Phoenixville (17) and Owen J. Roberts (5).

See supra (Footnote Continued)

7 m

63 First, the Licensing Board relies on the " historic record" of response to emergencies.

Id. at 1320, 1322, 1325.

The historic evidence of emergency response cited by the Board (id. at 1322), however, is thin and not directly relevant to the particular issue here.63 There is only one brief reference to the satisfactory response of school bus drivers during accidents at the Three Mile Island and Ginna facilities but no specifics are provided.

See Tr.

13,723-24.64 Fortunately, there have been few such events on which a historical record can be built; thus, any evidence of.offsite response to a radiological emergency will necessarily be limited.

Accordingly, while we do not discount this limited evidence, we cannot give it the significant weight the Licensing Board seemingly accorded it (Footnote Continued) note 60.

Thus, in essence the Licensing Board's statement is correct but for a reason different from that given.

63 See, e.g., Tr. 16,206 (driver willingness to respond during emergencies, including hazardous weather conditions),

13,647-49 (driver response likely to be the same, irrespective of the size of the EPZ and the number of buses required; generalized references to response to Three Mile Island (TMI) accident and a chemical release in Louisiana),

13,716 (vague reference to PECo consultant's experience at TMI, the Ginna plant in New York, and Wilkes-Barre, Pennsylvania, during a flood), 14,293 (no reason for consultant to believe drivers would not respond).

64 For example, the circumstances of these school evacuations and whether the one-lift principle pertained are not clear.

.. ~..-

i I

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64 l

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as a measure of how school bus drivers might respond during l.

-an emergency at the Limerick facility.

Accompanying the Board's reliance on the historic record of emergency response is its finding of a general willingness of individuals to perform-the functions assigned l

to them in an emergency.

LBP-85-14, 21 NRC at 1320, 1325, 1326.

But again, the evidence on which this latter finding i

is based is limited and not directly relevant to likely bus driver. response.

The-Board explicitly draws on the evidence j

~

adduced in connection with other contentions concerning the likely response of bus providers and teachers.

See id. at-1325, 1326 (referring to contention 12 and Board findings-139, 141,'143-45, 237-44).

But we can find no basis in-the l

l Board's decision or the underlying record for the Board's extrapolation of the response of bus providers and teachers to bus drivers.

~

With respect to bus providers, the Board found that, when a bus company has-committed itself to supplying the necessary vehicles, it is understood to make a corresponding commitment to provide its employees to drive them..

Id. at l

l 1320-21.

That may be, but it begs the question.

As LEA

- argues, the real issue is not the provider's commitment or intention, but the willingness of its driver,s to volunteer to participate in the emergency operation.

See LEA's Brief at 24-25, 26, 27.

The Board correctly notes that driver participation is to be voluntary, not a mandatory condition

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65 of continued employment with the bus company.

LBP-85-14, 21 NRC at 1321.

Thus, provider response is not necessarily a reliable predictor of driver response.65 Similarly, no basis has been articulated for the Licensing Board's implicit assumption that the bus drivers who will be called upon in an emergency will respond in the same manner as teachers and other school personnel.

The training and usual duties of these respective groups of individuals are so disparate as to counsel against any superficial comparisons.

Cf. Shoreham, supra note 5, 23 NRC at 153-54 & n.65.

Their response may well be the same, but that has not been shown on this record to be the case.66 Indeed, the record shows 65 The Board cites the FEMA witnesses' belief that "once a bus company has agreed to provide its bus resources.

such company has committed itself to ensuring that bus drivers are available to drive the buses in the absence of indications to the contrary."

FEMA Testimony, fol. Tr. 20,150, at 25 (re:

LEA-15) (emphasis added).

See LBP-85-14, 21 NRC at 1321.

As we discuss at i

pp. 66-72, infra, " indications to the contrary" have been shown on this record.

66 When the Licensing Board admitted LEA contentions 12 (teacher response) and 15 (bus driver response) and denied contention 8 (response of emergency workers in general), it stressed the need for specificity.

That is, it expected the parties to "daal not with the response of some everyman in some everysituation, but with specific personnel assigned specific tasks."

LBP-84-18, 19 NRC at 1055.

See LEA's Brief at 23-24.

It is thus consistent with this Board directive that the likely response of school bus drivers be determined on the basis of evidence relating to their response, not that of others, such as teachers.

_ ~ _.

66 for two school districts within the EPZ only lukewarm driver response to a request to evacuate school children during a radiological emergency.

A survey conducted by Dr. Roy C. Claypool, Superintendent of the Owen J. Roberts School District (located in Chester County and covering a little less than one-fourth of the EPZ) revealed that 25 of the 43 Gross Bus Company employees who usually drive for the district would do so during an emergency at Limerick.67 But because many of these 25 drivers indicated that the safety of their own families would have to be assured first, Dr. Claypool believes that a maximum of 18 drivers is a more realistic estimate of how many will respond.

LEA Exh. E-29 at 2; Tr.

15,870.

But see Tr. 15,919.

The Licensing Board, however, found these survey results unreliable because the survey did not include Gross Bus Company drivers other than those who ordinarily drive for Owen J.

Roberts.

The Board also emphasized that there was no evidence of exactly how many drivers stated they would not perform, no indication that drivers were encouraged to respond positively, and no attempt made (presumably by the school district) "to discuss i

or resolve any concerns that might have affected the 67 Owen J.

Roberts has a total need for about 48 72-passenger buses and, obviously, an equal number of drivers.

See supra note 60.

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O 67 responses of the surveyed bus drivers."

LBP-85-14, 21 NRC at 1323.

In our view, however, these survey results are entitled to greater weight than the Licensing Board was willing to accord them.

In the first place, the survey itself is rather straightforward and neutral in the simple questions it asks the drivers to consider " carefully" and to " answer with sincerity."

See Applicant Exh. E-107.

Even accepting the higher "will drive" response rate of 25 of the 43 drivers (which no party challenges), almost 42 percent of the drivers did not respond positively to the survey and thus cannot be fairly counted on to meet the reasonable assurance standard.68 More important, the Board's concern with how many drivers specifically stated they would not respond, and with the lack of effort to encourage a positive response, has effectively and improperly shifted the burden of proof on this issue from PECo to LEA.

It is applicant's burden to prove reasonable assurance that adequate 68 It is not clear how many, if any, of the 43 drivers surveyed ~did not respond at all to the questionnaire.

This is irrelevant, however, because in this instance no response or " undecided" is the functional equivalent of a "will not drive" response.

Unlike public opinion surveys, which rely on sampling techniques, the purpose of this' bus driver survey was to determine the likely actual response of the very individuals who would be asked to drive in an emergency.

Thus, failing to return the questionnaire or answering " undecided" certainly suggests less than satisfaction of the reasonable assurance standard.

68 protective measures can and will be taken in an emergency.

See 10 C.F.R. S 50.47 (a) (1).

In this instance, that means PECo was obliged to produce affirmative evidence of an adequate number of available drivers from some source, once the survey results substantially clouded that matter with

. doubt.

See Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 345 (1973).69 The Licensing Board similarly erred in not according adequate weight to the results of a survey of the 40 Custer Bus Company drivers serving the Spring-Ford School District in Montgomery County. O The Board's criticism of that survey parallels that of the Owen J. Roberts survey.

See LBP-85-14, 21 NRC at 1324.

The Board focuses on the 6 drivers who would decline to drive in a radiological emergency, but fails to note that only 13 of the 40 surveyed (32.5 percent) unequivocally stated they would drive; the other 21 either failed to respond or were uncertain.

Tr.

15,523.

See supra note 68.71 The Board was also unduly 69 Likewise, it was not LEA's or Dr. Claypool's, but PECo's, burden to demonstrate on the record how many other drivers might be available from Gross.

70 Spring-Ford requires a total of approximately 72 buses and drivers, only 40 of which Custer is designated to provide.

See supra pp. 59-60 and note 59.

71 The survey was very simple and much like that used in the Owen J.

Roberts District.

Attached to it, however, (Footnote Continued)

~'

69 influenced by the fact that the survey did not canvass an unspecified number of other Custer drivers, who the Board assumed "would be available.

in the event of an actual radiological emergency."

LBP-85-14, 21 NRC at 1324.

The Montgomery County RERP, however, indicates that Custer has available a total of 50 drivers.

Applicant Exh. E-3 at I-2-7.

Even assuming that all of the 10 additional drivers are willing to drive during an emergency, there is still reasonable assurance that only 57.5 percent of the Custer drivers would perform their duties.

Thus, insofar as the Spring-Ford and Owen J.

Roberts School Districts are concerned, driver surveys raise a legitimate question whether there is reasonable assurance that an adequate number of drivers would respond in an 2

emergency.

The Licensing Board did not give adequate (Footnote Continued) was a memorandum from the School Superintendent, Dr. William A. Welliver, explaining the need for an emergency plan and "a reasoned and rational response" in the unlikely event of an accident.

It also pointed out that "the safety of all residents is likely to be jeopardized if no concern for others exists during a time of need."

The memorandum stressed, however, that the drivers' response would have no bearing on their employment status.

See Applicant Exh.

E-73.

2 Surveys of drivers for several other bus providers were discussed on the record and in the Board's decision --

North Penn School District (outside the EPZ, but designated to provide 39 buses and drivers to schools in the EPZ in Montgomery County), Methacton School District (in the EPZ in Montgomery County), and SEPTA.

See LBP-85-14, 21 NRC at (Footnote Continued)

I 70 weight to the largely negative results of these surveys, and there is little else in the record on which to base a reasonable assurance finding.

See supra pp. 62-65.

Compare Shoreham, 23 NRC at 149-54; Zimmer, 17 NRC at 772.

Finally, FEMA witnesses testified in connection with LEA contention 15 that "the necessary procedures to assure (Footnote Continued) 1323, 1324-25.

LEA has raised no arguments on appeal concerning North Penn and Methacton.

Nevertheless, we have carefully reviewed the record concerning bus driver response in these two districts.

We agree with the Licensing Board that these surveys are unreliable and conclude that, in any event, the record overall shows an adequate number of drivers would likely be available in each district.

LEA does rely on the SEPTA survey and the related testimony of Roger Tauss, president of the union representing SEPTA drivers.

See LEA's Brief at 23.

We have no hesitation in concluding, however, that Mr. Tauss's undocumented, informal oral survey of about 30 of some 4000 drivers is of no probative value.

See Tr. 16,781-82.

3 The Board refers to the bus driver training program and notes that, by addressing drivers' misconceptions about the risks involved and the nature of their duties, the program enhances drivers' willingness to respond in an emergency.

LBP-85-14, 21 NRC at 1319-20.

But few drivers have had such training and FEMA had not yet reviewed the program for adequacy at the time of the hearing.

Id. at 1320.

The mere existence of the training program is not enough to outweigh the demonstrated results of the bus driver surveys.

The Board also mentions the forming of " pools of backup drivers."

Id. at 1321.

The evidence cited to support this finding, however, either refers to a reserve of buses (not drivers), or is wholly lacking in the necessary specifics.

See Tr. 14,269-70, 14,297-99; Bradshaw, et al.,

fol. Tr.

12,764, at 23.

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s e.

71

-the availability of adequate numbers of bus drivers to evacuate all school children within the 10-mile EPZ within

[sicl one lift have not been developed."- FEMA Testimony,

~

fol. Tr. 20,150, at 24 (re:

LEA-15) (emphasis added).

The Licensing' Board's attempt to minimize this testimony is unpersuasive.

The Board stresses that FEMA's conclusion is based on its review-of plans submitted in December 1983 and that-the record addresses facts subsequent to that review, which the Board apparently considers controlling.

LBP-85-14, 21 NRC at 1326.

The " subsequent facts" presumably are the availability of an adequate number of buses and the other factors that we have already concluded do not carry the day.

As for FEMA's testimony, it was entered into the record in late January 1985 and there is no reason to assume that it did not reflect FEMA's view at that time.

FEMA had the opportunity to update its testimony, and its witnesses were subject to direct and cross-examination at the hearing.

That testimony indicates that the "no reasonable assurance" view in FEMA's prefiled statement still pertained in the final days of the hearing.

See, e.g., Tr. 20,210.74 e

74 l

PEMA's testimony in this regard (included in the record at about the same time as FEMA's) is no more positive i

or. definitive.

See Hippert, fol. Tr. 19,498, at 23-24

~

l (pagination continued).

t

l' i

H 72 l

We therefore conclude that the Licensing Board's l

finding of reasonable assurance of a sufficient number of

-bus drivers willing to respond during an emergency-at Limerick'is.not adequately supported by the record, insofar as the Spring-Ford and Owen J. Roberts school Districts are concerned.

Accordingly, we reverse the Board's decision in

(

that respect.

This action necessarily vitiates the reasonable assurance finding that serves as a basis for the operating license already issued to the Limerick facility.

i See supra note 20.

As we earlier pointed out in this same l

proceeding, however, 10 C.F.R.

S 50.47 (c) (1) provides a mechanism for dealing with certain emergency planning l

deficiencies, without suspending an outstanding license.

5 ALAB-819, 22 NRC at 715-16 & n.48.

In this instance, the planning deficiency is relatively limited and we believe that it is possible for the parties and Licensing Board to address it on remand promptly (i.e., within the next three 5 Section 50. 47 (c) (1) provides:

Failure to meet the applicable standards set forth in paragraph (b) of this section may result in the Commission ['s] declining to issue an operating license; however, the applicant will have an opportunity to demonstrate to the satisfaction of the Commission that deficiencies in the plans are not significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation.

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o 73 to four months).

This time corresponds to the summer school recess, during which large-scale school evacuation would not be necessary.

Considering the totality of circumstances, we therefore find compelling reasons to permit continued plant operation, despite the demonstrated emergency planning deficiency, and remand this matter to the Licensing Board 6

for prompt action in accordance with this decision.

V.

Emergency Exercises In an unnumbered contention, LEA claimed that the conduct of emergency drills and exercises was not sufficiently detailed in the various RERPs, and that such exercises would not provide a realistic test of the emergency plan.

LEA Off-site Emergency Planning Contentions at 42.

LEA, however, voluntarily withdrew this contention at a March 1984 prehearing conference after learning that a FEMA regulation, 44 C.F.R.

S 350.10, requires a public meeting after such exercises but before final FEMA evaluation of the emergency plan.

LEA determined that this meeting would provide " ample opportunity" to address its concerns about the adequacy of the drills, obviating 76 We also note that LEA did not raise bus driver availability in its request for a stay of the Licensing Board's decision, suggesting that LEA did not consider that issue to be a strong basis for postponing plant operation.

See LEA Motion for a Stay (May 16, 1985); Supplement to Limerick Ecology Action's Motion for a Stay (May 20, 1985).

74 i

litigation of the issue.

Tr. 8079-87.

See LBP-84-18, 19 4

NRC at 1062.

On. appeal, LEA refers to several May 1985 FEMA Memoranda (see supra note 20) and essentially complains that FEMA has therein issued its final report on the emergency plan, without holding the public meeting required by 44 C.F.R. S 350.10.

LEA claims it is entitled to this meeting I

or an equivalent opportunity to comment, or, in the alternative, admission and litigation of the contention it earlier withdrew, LEA's Brief at 56-57.

We disagree.

Nothing has changed in this regard since the prehearing conference.

LEA has misinterpreted the May 1985 FEMA Memoranda.

To be sure, the memorandum dated May 21, in i

i' particular, refers to various full-participation, supplemental, and remedial exercises conducted during 1984 and 1985 and states that certain deficiencies previously noted have been corrected.

It also concludes that "offsite radiological emergency planning and preparedness is now adequate to provide reasonable assurance that protective measures can be impicmented to protect the public health and safety in the event of a radiological emergency at the Limerick Generating Station."

FEMA Memorandum (May 21, 1985) at 2.

But there is no indication that this or the other memoranda are intended to be the final FEMA report (granting approval to all of the state and local offsite emergency plans for Limerick) that must be preceded by the

o

.e 75 public meeting under 44 C.F.R. S 350.10.

Rather, the memoranda are the " interim findings" that FEMA is obliged to provide to the NRC periodically for use during the licensing process.

See FEMA /NRC MOU, 50 Fed. Reg, at 15,486.

Moreover, the formal PEMA review, of which the section 350.10 public meeting is a part, is not triggered until the Commonwealth has reasonable assurance of the plan's adequacy and applies to FEMA for final approval.

See 44 C.F.R.

S 350.7; Commonwealth Brief (August 8, 1985) at 15.

The Commonwealth has not yet made such a request, but has committed itself to seeing that PEMA holds the public meeting required by the latter's own regulations.

Hippert, fol. Tr. 19,498, at 3-4; App. Tr. 74-75.

We therefore have no cause (and LEA provides none) to doubt that, in due course, FEMA will hold the section 350.10 public meeting.

Further, this regulation specifically provides for public input.

See 44 C.F.R. S 350.10 (a) (3).77 LEA will thus obtain all that it claims to have sought when As the NRC staff points out, LEA has nonetheless already had such input indirectly in this proceeding, despite the withdrawal of its contention.

FEMA's reports on two 1984 emergency exercises were admitted into evidence (FEMA Exhs. E-4 and E-5), and LEA cross-examined the FEMA witnesses in this regard.

NRC Staff Brief (August 16, 1985) at 53.

See, e.g.,

supra pp. 41-44, 50, 54.

m e

.o 76 it first proffered, and later withdrew, its contention 8

concerning exercises and drills.

The Licensing Board's third partial initial decision, LBP-85-14, is reversed insofar as it finds reasonable assurance of the availability of an adequate number of bus drivers to evacuate students in the Spring-Ford and Owen J.

Roberts School Districts; accordingly, this matter is remanded for prompt action in accordance with this opinion.

Otherwise, LBP-85-14 is affirmed, subject to the following license condition:

the Director of Nuclear Reactor Regulation is to verify the expeditious establishment of additional traffic control measures in the area of Route 100 and the Downingtown interchange of the Pennsylvania Turnpike.

O LEA's reliance on Union of Concerned Scientists, 735 F.2d 1437, is misplaced.

In that case, the court overturned a former Commission rule that precluded litigation of the results of an emergency preparedness exercise in a licensing proceeding.

The Licensing Board, however, did not exclude LEA's contention on the basis of that rule or any other ground; rather, LEA voluntarily withdrew the contention for the wholly unrelated reasons stated above.

oi.e 77 It is so ORDERED.

FOR THE APPEAL BOARD c.CaMd C.

J-Tn Shbemaker Secrc ary to the Appeal Board

e. *o 78 APPENDIX A Excerpts from the Pennsylvania Emergency Management Services Code, P.L.

1332, No. 323, 35 Pa. Cons. Stat. Ann. S 7101 et seq. :(Purdon 1978) [ emphasis added].

S 7501.

General authority of political subdivisions (a)

Establishing emergency management organization. -- Each political subdivision of this Commonwealth is directed and authorized to establish a. local emergency management organization in accordance with.the plan and program of the Pennsylvania Emergency Management Agency.

Ehc." local organization shall have responsibility for emergency management, response and recovery within the territorial limits of the politica) subdivision within which it is organized and, in a.'dition, shall conduct such services outside of its jurisdictional limits as may be required under this part.

S 7502.

Local coordinator of emergency management (a)

General rule. -- Each local organization of emergency management shall have a coordinator who shall be responsible for the planning, administration and operation of the local organization subject to the direction and control of the executive officer or governing body.

l i

(d) ' Qualifications. -- The coordinator shall be professionally competent and capable of planning, effecting coordination among operating agencies of government and controlling coordinated operations by local emergency preparedness forces.

S 7503.

Powers and duties of political subdivisions Each political subdivision shall:

(1)

Prepare, maintain and keep current a disaster emergency management plan for the prevention and minimization of injury and damage caused by disaster, prompt and effective

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- - - ~. _ _ _

.....,. _. m.. ~

m 44 e6 79 response to disaster and disaster emergency relief and recovery in consonance with the Pennsylvania Emergency Management Plan.

(2)

Establish, equip and staff an emergency operation center, consolidated with warning and communication systems to support government operations in emergencies and provide other essential facilities and equipment for agencies and activities assigned emergency functions.

(3)

Provide individual and organizational training programs to insure prompt, efficient and effective disaster emergency services.

(4) organize, prepare and coordinate all locally available manpower, materials, supplies, equipment, facilities and services necessary for disaster emergency readiness, response and recovery..

(5)

Adopt and implement precautionary measures to mitigate the anticipated effects of disaster.

(6)

Execute and enforce such rules and orders as the agency shall adopt and promulgate under the authority of this part.

(7)

Cooperate and coordinate with any public and private agency or entity in achieving any purpose of this part.

(8)

IIave available for inspection at its emergency operations center all emergency management plans, rules and orders of the Governor and the agency.

r l

(9)

Provide prompt and accurate information regarding local disaster emergencies to appropriate Commonwealth and local officials and agencies and the general public.

S 7707.

Penalties (a)

General rule. -- Any person violating any of the plans and programs adopted and promulgated by the Pennsylvania Emergency Management Council shall, upon conviction thereof in a summary proceeding, be sentenced to pay a fine not exceeding $200 or imprisonment not exceeding 30 days or both, for the first offense, and a fine

v.

ee 80 i

not exceeding $500 or imprisonment not exceeding 90 days or both, for each subsequent offense.

(b)

Loss of funds. -- Those political subdivisions in violation of section 7501

^ (relating to general authority of political subdivisions), section 7502 (relating to local coordinator of emergency management), section 7503

.(relating to powers and duties of political

- subdivisions) or section 7504 (relating to coordination, assistance and mutual aid) shall, at the direction of the council, be subject to loss of Federal personnel and administrative funding'

-for the remainder of the fiscal year in which conviction is established.

Reinstatement of Federal personnel and administrative funding shall take place the year following approval of remedial action to the violation.

(

ML20197B026

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