ML20205R508
| ML20205R508 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/03/1988 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20205R511 | List: |
| References | |
| CON-#488-7440 OL-5, NUDOCS 8811100052 | |
| Download: ML20205R508 (255) | |
Text
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occxciro 05NPC O '88 El -7 A10 :22 UNITED STATES OF AMERICA ~
NUCLEAR REGULATORY COMMISSION '
O Before the Atomic Safety and Licerning Board In the Matter of )
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LONG ISLAND LIGHTING COMPANY ;
) Docket No. 50-322-OL yt'
) (1988 Exercise) !
(Shoreham Nuclear Power Station, ) '
Unit 1) ) :
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_I4LCO'S RESPONSE TO 1988 EXERCISE CONTENTIONS O
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Hunton & Willimma 707 East Main Street i P.O. Box 1535 :
g Richmond, Virginia 23212 i
November 3,1988 lO I O
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- O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
!O Before the Atomic Safety and Licenstru Board s
In the Matter of )
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)
LONG ISLAND I *G'dTING COMPANY ) Docket No. 50-322-OL-5R
) (1988 Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
lO 1
i _QLCO'S RESPONSE TO 1988 EXERCISE CONTENTIONS lO O
Hunton & Williams 707 East Main Street P.O. Box 1535 O Richmond, Virginia 23212 November 3,1988 O
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TABLE OF CONTENTS
'O Page A. In t rodu c t io n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
-0 1. rundamental riaw ....................................... 2
- 2. Def erence Due FEM A Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 B. The Con t en tions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 0 1. Contention 1: Scope of Exercise (pp. 3-14) ..................... 6
- a. S u bpa r t A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
- b. S u bpa rt B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
- c. S u bpa r t c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
O 12
- d. S u b pa r t D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
- e. Su bpa r t E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
- t. S u bpa r t F . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
-O
- g. S u bpa r t G . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
- h. S u b pa r t H . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 g 1. S u b pa r t ! . ' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
- j. S u b pa r t J . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
- k. S ub pa r t K . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
- 1. S u b pa r t L . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 O
- m. S u bpa r t M . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
- n. S u b pa r t N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
- o. S u b pa r t O . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
- p. S u b pa r t P . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
- q. S u b pa r t Q . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
- 2. Contention 2: Assumptions About O Government Interaction with LERO (pp.14-15) ................. 21 0
O _it.
'O 3. Contention 3: FEMA's "Unfounded Conclusions" (pp.15-19) .................................. 22
- 4. Contention 4: Governmental in terf ace (pp. 19-2 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 O a. Inaccurate or Confusing information . . . . . . . . . . . . . . . . . . . . 24 .
b.
LERO "Did Not Know Pertinent Information" . . . . . . . . . . . . . . 25
- c. Contacting the Wrong Government ..................... 25 O d. U ntimely Cont ac ts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
- e. Rem aining Exa m ples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
- f. F E M A F indings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 O 5. Contention 5: Notifica tion (pp. 26-30) . . . . . . . . . . . . . . . . . . . . . . . . 28
- a. 5.A: S tre n Failu re . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
- b. 5.B: Route Aler t Drivers . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 29 l
O c. 5.C: E x a m p les . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
- d. 5.D: Notification of Deaf People . . . . . . . . . . . . . . . . . . . . . . . 31
- 6. Contention 6: Emergency Broadcast System (EBS) Messages (pp. 30-51) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 O a. The EBS Messages Have Been Litigated Twice Before . . . . . . . . 32 ,
- b. Contention 6 Does Not Raise Serious Health and Safety issues, and Thus Falls to Allege a Fundamental Flaw in the LERO Plan . . . . . . . . . . . . . . . . . . . 33 O
- c. Contention 6 Is inadmissible for Other Reasons . . . . . . . . . . . . 37 i
[
t
- 7. Contention 7: Emergency News Center (pp. 51-60) .............. 37
- a. Contention 7 Falls to Allege a Fundamental Flaw . . . . . . . . . . . 38 r 0 b. Portions of Contention 7 Lack Basis and Specificity . . . . . . . . . 40
- 8. Contention 8: Rumor Con trol (pp. 60-66) . . . . . . . . . . . . . . . . . . . . . . 42 [
- 9. Contention 9: EBS Messages as a Primary !
O Source of Public Information (pp. 66-68) . . . . . . . . . . . . . . . . . . . . . . . 43
- 10. Contention 10: Shadow Phenomenon (pp. 68-69) . . . . . . . . . . . . . . . . . 45 t
O 1
O 'iil' O
- 11. Contention 11: Ingestion PA Rs (pp. 69-76; . . . . . . . . . . . . . . . . . . . . . 47
- a. Con t en tions 11. A a nd B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
- b. C o n t e n t i o n 1 1. C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
'O c. Co n t en tio n 11. D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
- d. Co n t e n tio n 11.E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 ;
- 12. Contention 12: Plume Exposure Pathway PARS (pp. 77-80) . . . . . . . . . 51
..o
- a. Con t e n tions 12. A a nd B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
- b. C o n ten tion 12. D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 l
- c. Con ten tion 12.F . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
'O
- 13. Contention 13: Medical Services (pp. 80-83) ................... 53
- 14. Contention 14: Schools (pp. 83-87) .......................... 55
- a. Inadequa te Fac tual Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 O b. Irreleva n t B ases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
- c. No Fundamental Flaw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 i
- 15. Contention 15: Traf fic Impediments (pp. 88-89) . . . . . . . . . . . . . . . . . 60
- O 16. Contention 16: A c cess C o n t rol (pp. 8 9-9 0) . . . . . . . . . . . . . . . . . . . . . 62 :
1
- 17. Contention 17: Monitoring and Decontamination of Public and Emergency Workers (pp. 90-93) . . . . . . . . . . . . . . . . . . . 63 ,
- a. Con t en tion 17. A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 ;
O
- b. Con ten t io n 17.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 ,
- 18. Contention 18
- Equipment and
. Reception Failures (pp. 9 4-96) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 i O 19. Contention 19: Fa!!ure to Communicate Inf orm a tion (pp. 96-99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 -
1 >
- 20. Contention 20: Training (pp. 99-10 4) . . . . . . , . . . . . . . . . . . . . . . . . . 69 C. C onc l usio n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 i
O I
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LILCO. November 3.1938 O
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION O
i Before the Atomic Safety and Licensing Board
- r in the Matter of )
O >
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5R
) (1988 Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
O LILCO'S RESPONSE TO f %8 EXERCISE CONTENTIONS t
A. Introduction t
O Pursuant to the Board's scheduling orders of September 22,1988, and October 12, 1988 LILCO hereby responds ,to the Intervenors' Emergency Planning Contentions Relating to the June 7-9,1988 Shoreham Exercise (Oct. 24,1988) (hereinaf ter "Conten-O tio.,"). LILCO submits that none of the 20 is admissible and objects to them all.
The first FEMA graded exercise of the LERO organir.ation in 1986 took one day and involved over 1100 participants and 38 federal government evaluators. The 1988 O exercise was three times longer and far more demanding. It lasted three days and in-volved over 2291 LILCC workers and contractors and 68 federal evaluators. See, .e,&,
4 FEMA Region II, Post-Exercise Assessment (Sept. 2,1988)(hereinaf ter "FEMA Report")
O at 2 (68 evaluators). This was only the second time in Region !! that an exercise had fully tested both plume exposure and ingestion exposure pathways, as well as recovery
- and reentry functions. It was the most thorough and elaborate exercise that had ever
- 0 been held in this country.
FEMA's reviews of emergency plans and exercises at Shoreham tell the story. ' '
Reviewing the 1986 exercise FEMA found four areas involving "deficiencies"; re- I iO viewing the 1988 exercise it found none. Reviewing the Shoreham plan and exercise in j
O ,
1986, FEMA did not. reach a finding that emergency preparedness at Shoreham provided O reasonable assurance of protection of the public health and safety; in 1988 FEMA reached a favorable reasonable assurance finding. Letter from Grant C. Peterson (FEMA) to Victor Stello, Jr. (NRC), Sept. 9,1988, at 2.
O Despite all this, Interven rs Suffolk County and New York State claim to have L found several "fundamental flaws," which require 104 pages to articulate. The Board must now decide if any of the proffered contentions meet the Commission's pleading O standards that apply at this stage of a proceeding.
The standards for admitting contentions have been thoroughly set out, first by the Shearon Harris board and then, in response to the Commission's guidance in CLI 0 11, by this Board in 1986. Carolina Power & Light Co. (Shearon Harris Nuclear Power i
Plant), LBP-85-49, 22 NRC 899, 908-11 (1985), aff'd, ALAB-843, 24 NRC 200, 215 n.71 ,
l (1986); 1,T.r Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-11 I O 23 NRC 577 (1986); Preheadng Conferme Or&r (Ruling on Contentions and Estab lishing Discovery Schedulu, Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ASLBP No. 86-533-01-OL, slip op. at 1-9 (Oct. 3,1986). LILCO has 'sked the O Appeal Board to provide guidance on the meaning of "fundamental flaw." Bat, lacking the outcome of that appeal, LILCO is applying the standarch in the October 3.1986 Prehearing Conference Order.
Applyi g those standarth, LILCO submits that none of the 20 contentions is ad-O missible. There are two reasons why the Intervenors have been unable to frame admis-sible contentions.
- 1. Fundamental Flaw First, Intervenors have failed to allege problems that, if true, would be "funda-mental flaws" in the Plan. A contention is inadmissib!c if it f ails the "fundamental flaw" test sucro ted in Union of Concerned Scientists v. NRQ,735 F.2d 1437 (D.C. Cir.
O
O 1984), cert. denied. 469 U S.1132 (1985), and adopted in Shoreham, CLI-86-11. supra.
O and Sheanin Harris, LBP-85-49. supra. That is, it is inadmissi'u le if it alleges problems that, even if substantiated, would not represent a "fundamental flaw"M and thus would not compromise substantial implementation of the emergency plan. S_ee Shearon
'O Ht.ris,22 NRC at 911. One cannot merely utter the words "constituting a fundamental flaw" as part of the contention to have those words act as a shibboleth and allow its ad-
, mittance as litigable. Prehearing Conference Order at 2 (Oct. 3,1986). Thus in 1986 iO the Board in this case ruled a number of contentions inadmissible because they alleged only "minor or ad hoc problems occurring on the exercise day" that, even if true, were !
not "fundamental flaws." Id. at 15, 16, 18, 24-25.
lO ms "fundamental Haw" cdtedon implies that exercise contentions "should be considered in light of the fact that they are arising at the end of a lengthy public evalu- !
ation process - a process designed to surface serious planning defects - and relatively O cl se to expected operation of the facility." Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant), LBP-85-49, 22 NRC 899, 909 (1985). Thus, this Board noted b 1986 that it was adopting standards for admissibility "in a proceeding where ;
O emergen y planNng has been in litigation rather continuously since 1983, where we [
t have a transcript record of more than 16,000 numbered pages and approximately 7.000 ;
i additional pages of prefiled written testimony and exhibits." ASLBP No. 86-533-01-OL, s!!p op, at 4.
O !
j Now, even further along in this "lengthy process," tha record argues strongly l
}
3 against there being any "tundamental flaws": i a l lO
! i 1 i F
The Board discussed the meaning of "fundamental flaw"in its decision LBP-88-2, !
27 NRC 85, 92 (1988), it found no "meaningful dJstinction between a fundamental flaw and a deficiency." Id. It agreed with LILCO that a fundamental flaw would have sub- l i
O stantially affected the health and safety of the public in a real emergency and that the 1 flaw must be "pervasive as opposed to a minor or ad bp_s problem." Ld. l 0 i
O ~4-(1) The NRC has found that there is nothing "unique about the demography, topography, access routes, or jurisdie-
. O tional boundaries in the area in which Shoreham is to-cated" and that the lengthy recotd "falls to reveal any basis to conclude that it would be impossible to f ashion and implement an effective offsite emergency plan for the Shoreham plant." LBP-85-31, 22 NRC 410, 427 (1985).
(2) The State and County would use their "best efforts" and follow the LERO Plan in responding to an actual emer- t gency.10 CFR S 50.47(c)(1)(1988).
(3) All planning (as distinguished from exercise-related) is-O' suas have now been resolved in LILCO's favor. LB P-88-24,28 NRC (Sept. 23,1988).
(4) The evidentiary record is enormous, and the review by i FEMA, the NRC Staff, and licensing boards has been exhaustive.
O is) The 1988 exercise, and FEMA's review of it, were ex-
- ceptionally thorough.
(6) FEMA, on the basis of its review of both the plan and the exercise, has made a "reasonable assurance" find-O ing. Letter from Grant C. Peterson (FEMA) to Victor Stello, Jr., (NRC), Sept 9,1988, at 2.
(7) FEMA has found no deficiencies revealed by the exer-cise. Ld.
'g (8) The Mtervenors proffering the contentions have re-cently been dismissed from the OL-3 proceeding for bad-faith obstruction of the NRC's f act-finding pro-cess. LBP-88-24,28 NRC _ slip op, at 88-130 (Sept.
23, 1988).
.O These fact rs sh w that in this Shoreham proceeding, more than in any other, Interve-nors have a substantial burden in pleading a "fundamental flaw."
Although the board should not, of course, decide the merits of the contentions at O this stage, it should consider their factual context. For example, if Intervenors cite an imperfect communication in the exerch,e that they claim reveals a "fundamental flaw,"
it is appropriate for the Board to consider that the same document on which Interve-n r5 rel) (typically the FEMA Report) indicates that hundreds of mmmunications were O
made correctly.
O
i Whenever LII.CO makes such an argument, intervenors will no doubt reply that LILCO is arguing the merits. They made this argument, incorrectly, in 1986. See Mem-orandum and Order (Ruling on FEMA's Motion for Reconsideration of and intervenors' Objections to October 3,1986 Prehearing Conference Order) at 23 (Dec.11,1986). But in LILCO's view if a contention is demonstrably misleading or ill-founded on the face of the same document, or the same class of documents, relled on in the contention, then it is proper to rule the contention inadmissible at the threshold rather than go to the next step, summary disposition. This is especially so where, as here, intervenors are given the opportunity, not conferred by the Rules of Ptsetice, to have the last word on con" tention admissibility in their reply.
- 2. _ Deference Due FEMA Findings '
The second reason why Intervenors are unable to frame admissible contentions is that they have f ailed to overcome the defeience that is due FEMA findings. NRC regu-lations give FEMA findings a rebuttable presumption of correctness,10 C.F.R.
S 50.47(a)(2)(1988). And, as the Shearon flarris board has recognized, that presumption has force at the contention-admission stage. LBP-85-49,22 NRC 899, S10 (1985)(board should rive a FEMA finding of adequacy or correctability some deference at the con-tention stage).
This deference is especially justified in this Shoreham case. The Board has found that the FEMA witnesses were "highly competent," with "extensive knowledge of the plan," and that their testimony on the 198G exercise was forthright, impartial, and "most valuable." LBP-88-2,27 NRC 85, 89-90 (1988). Moreover, during the long course of the litigation over the 1986 exercise the Intervenors succeadai in "proving" essen-dally nothing that FEMA had not already reported in its post-exercise report. Counsel for Intervenors admitted as much in the argument on the appeal from LBP-88-2:
)
The (Licensing) Board, you must remember, essential-ly followed FEMA's findings. FEMA calls it a deficiency. The Licensing Board calls it a fundamental flaw, but, essentially,
) the Board followed the FEMA findings as to what had been noted and observed as demonstrated defielencies during the day of the exercise, and the Board essentially went down the line with FEMA on this.
The governments agreed with FEMA in FEMA's analysis
) of the exercise.
Transcript of oral argument, morning, Sept. 14,1988, at 49 (Suffolk County counsel).
Likewise, the facts relied on in the 1988 exercise contentions are for the most part
) merely a recycling of the FEMA Report, except that this time Intervenors have to dis-agree with FEMA's analysis and conclusions. By L!LCO's count, of 220 citations in the Contentions, half are to the FEMA Report all but three are to the FEMA Report, the
) OPIP's, or the NRC regulations. Of some 219 fact 3 alleged in the Contentions,74 per-cent are direc.tly attributable to the FEMA Report.
In short, the contentions to be admissible must meet the Commission's traditi-onal basis and specificity standards alleging fundamental flaws and not minor, ad hoc problems, and they must overcome the deference accorded to FEMA findings. None of j the 20 contentions meets these standards, as will be explained in detail below.
B. The Contentions
- 1. Contention 1: Scoce of Exercise (pp. 3-14)
Notwithstanding the unprecedented size, level of participation, and complexity of the three-day 1988 Shcreham exercise, and notwithstanding that the exercise was designed and conducted in scrupulous conformity with not only FEMA practice but both the Licensing Board's decision in LBP-87-32,26 NRC 479 (1987) and the Appeal Board's May 25,1988 preliminary advisory opinion, Intervenors allege in Contention 1 that "critical elements of preparedness were omitted from or insufficiently tested" during the exercise. Consequently Intervenors claim, the exercise did not constitute "full
)
O
Contention 1 participation" as required by 10 C.F.R. Part 50, Appendix E,1 IV.F.1. As support for O their contention, Intervenors cite 17 separate elements that they allege were either "omitted, untested or unverified." LILCO objects to Contention 1 because Intervenors' assertions within each of these 17 subparts do not constitute an adequate basis.
O LH.CO addresses below each of Intervenors' subparts, recognizing that under NRC practice the standard for contention admissibility is rather a liberal one. In gen-eral, what is required for a contention to be considered acceptable is that it be specific O and have a basis.F see, _e&, Houston Light & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542 (1980). Howevcr It is equally the case that Intervenors must "allege at least some credible foundation" for their conten-O 'I "* See Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant. Units 1 and 2), ALAB-880,26 NRC 4M 457 (1987)(emphasis added).
Moreover, contentions that allege that an exercise was not "full participation" due t the failure f the exercise to test certain elements of the emergency plan must O
also indicate why each allegedly omitted element constitutes a "major observable por-tion" of the plan. This is made clear by the Appeal Board's decision in ALAB-900,28 NRC (1988), which defined "full participation" for pre-11eense exercises as meaning O
"that all'the major observable portions of the onsite and offsite emergency plans' must be tested . . . ." ALAB-900, slip op. at 26. The Appeal Board added that "FEM A Objec-O tives can serve as guidance in determining what the major observable elements are."
Ld-ALAB-900 provides other significant guidance for determining whether a conten-O ti n has properly alleged that an exercise was fundamentally deficient in scope. In its decision, the Appeal Board overruled certain aspects of LBP-87-32, noting that with respect to the "reasonably achievable" language in Appendix E,1 IV.F.1 0
2/ In addition, an exercise contention must allege a fundamental flaw. See Shearon Harris,22 NRC at 910 (1985); Shoreham, CLI-86-11,23 NRC at 581 (1986). _
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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ - _ _ - - - - - - 1
<D 3 Contention 1 the parties and the Licensing Board erred in turning to that provision as esantially an ' affirmative defense' for LILCO to g a claim that an exercise was not ' full participation.'
ALAB-900, slip op. at 32. Instead, the Appeal Board stated that, in the future, where an applicant claims that it was not possible to test an element of an emergency plan that would otherwise be required to be O !" !"d*d I" ^ '"li P 't! P 'l " P'!! *^5* ***' iS* th' 8 d should analyze that claim pursuant to 10 C.F.R. Pa'rt 50, Ap-pendix E,1 IV.F.6, and 10 C.F.R. S 50.47(c)(1)(1988).
Ld. at 33. In turn, Appendix E,1 IV.F.6 provides that the q' participatic't of state and local governments in an emergency exercise is not required to the extent that the applicant has identified those governments as refusing to participate fur-ther in emergency planning activitics, pursuant to 10 C.F.R. 50.47(c)(1), in such cases, an exercise shall be held with the applicant or licensee and such governmental entitles as elect O to participate in the emergency planning process.
10 C.F.R. Part 50, Appendix E T IV.F.6. As demonstrated below, LILCO has followed the Appeal Board's guidance in assessing the admissibility of each subpart to Interve-O n rs' Contention 1.F In large measure the subparts are objectionable as a matter of law. Where Intervenors' assertions simply have no credible f actual foundation, howev-er, LILCO makes references, as appropriate, to matters reflected on the face of the O FEMA Report or to other documentation which demonstrates conclusively the f alsity of certain of Intervenors' claims.
For instance, as part of its preparation for the 1988 exercise LILCO actively s ught the participation of every outside organization ano entity identified in the LERO O
Plan, including schools, special facilities, and the American Red Cross. LILCO also re-quested the participation of the governments of Suffolk County and Nassau County, New York and Connecticut, and other political jurisdictions. Letters were sent by cer-O tified mall to all of these organizations and entitles, and the responses that LILCO g 3/ The Licensing Board itself conducted a subpart-by-subpart analysis of Interve-v nors' Contentions EX 15 and EX 1.6 in the previous exercise litigation.
O
O '9' Contention 1 received were documented and cataloged. Copies of the most pertinent of these letters g (and corresponding responses) are provided as Attachments 2-3 and 5-8 and are individ-ually referenced, as appropriate, in response to the contention's subparts.3I LILCO be-lleves that the Board not only can but should take notke of these letters and responses.
O which speak i e themselves, in assessing the admitsibility of each alleged "basis" for Contention 1. It makes no sense, LILCO submit',, for a subpart to be admitted when uncontrovertible evidence alretdy exists that demonstrates that the subpart simply has
- O n legally e gnizable basis,
- a. Subpart A in subpart A,Intervenors make three separate allegations as to why the 1988 ex-
!O ercise did n t nstitute "full participati n." First, they assert that ti'are was "no ade-quate testing or evaluation" of the LILCO siren system. Second, they claim that there was "no test broadcast of an emergency broadcast system (EBS) message." Third, they i
O art e that the exercise was deficient because the radio statien that participated in the exercise (WPLR) has since been replaced by another statbn, WCBS, which did not par-ticipate. None of these three assertions has, as a matter of law, any cognizable basis.
Subpart A should thus be rejected.
O
. First, the claim that there was no "adequate" evaluation of the LlLCO siren sys-i tem is repudiated by the FEMA Report, which indicates that LERO met the applicable
- O bjwt n f dem mtrat ng the ability to activate the Wem in a timely maar and in coordination with the dissemination of emergency information. See FEMA Report at 44.EI
- O 3/ The affidavit of Charles A. Daverlo. LILCO Manager of Nuclear Operations Sup-port,is included to establish the authenticity of those letters and responses.
1 1/ To the extent Intervenors are alleging that the testing of the sirens was not "ad-
! equate" because of certain stren .4!!vres that were observed during the exercise, this iO does not raise a "scope of the exercise" issue at all. Such an assertion is redundant of l Intervenors' Contention 5 and is more appropriately addressed in LILCO's response to that contention.
lO
O -to-Contention 1 Second, the mere fact that a test message was not aatually broadcast during the O 1988 exercise does not render the exercise less than "full participation." As the FEMA Report points out, WPLR was "prepared and equipped to carry out all phases of EDS message broadcast." FEMA Report at 44. In short, the station performed every task O necessary to demonstrate its ability to broadcast an emergency message in coordination with LERO In fact, WPLR did broadcast a test message within the smtion for the ben-efit of the FEMA evaluator, in the face nf the political opposittors that its participa-O tion in the Shoreham EBS network had engendered (and given the idstory of pressure and intimidation in the EBS area), WPLR's decision not to broadcast a message to the public does not constitute noncompliance on LERO's part with the provisions of Appen-O dix E. S_ee, n. ALAB-900, slip op, at 29.
Finally, the fact that WCBS has now replaced WPLR as the lead station in the Shoreham EBS is not relevant at all to whether the 1988 exercise was "full participa-O ti n." At the time f the 1988 exercise, WPLR was the lead Station for Shoreham and, therefore, it was entirely appropriate for the exercise to test the integrated capabill-ties of that station. S_ee, e&, LBP-88-2,27 NRC 85,135 (1988) (Board ruled that the
.O "fact that 4 months af ter the February 13 Exercise the Nassau Coliseum was made unavailabic for use in LILCO's Plan does not invalidate the findings of FEMA during the Exercise.").
O Mr ver, Interven rs are in n p sitt n t argue that the subsequent replace-ment of WPLR with WCBS retroactively constitutes a flaw in the scope of the 1988 ex-ercise. LILCO's plan to rely on the "realism" principle in order to use the Nessau-Suffolk Operational Area EBS (of which WCBS is the primary originating relay station)
- O has been found to satisfy NRC regulations. Lee, LBP-38-24,28 NRC _, s!!p op, at 32-
- 33. The contention invites this Board to collaterally attack the ruling of the OL-3 B ard in LBP-38-24. And as the LERO Plan calls for LERO to obtain permission from O
- O
J Contention 1 either Suffolk County or New York State before seek;ng to activate the WCBS EBS net-g work, any abstention from testing of this element of the Plan must be assessed in !!ght of 10 C.F.R. Part 50, Appendix E.1 IV.F.6 and 10 C.F.R. S 50.47(c)(1). _See ALAB-900, s!!p op, at 33.
O For reasons given above, subpart A does not provide any legally cogniza:le basis for Contention 1. The subpart should be rejected,
- b. Subpart B O In subpart B, what Intervenors essentially argue is that there was no testing of a "major observable portion" of the LERO Plan because only one school district partici-pated in the exercise. Even if Intervenors' allegation is accepted as true, this subpart n must be rejected as a matter of law.
v School districts are governmental entitles within the meaning of Appendix E.
1 IV.F.6. This is the express opinion of the NRC's Office of General Counsel. See let-ter from Edwin J. Reis, Deputy Assistant General Counsel (NRC) to William R.
Os Cumming Office of General Counsel (FEMA)(May 11,1988).EI In ALAB-900, the Ap-peal Board Stated that (1]n future exercises . . . LILCO should at least attempt to O obtain the participation of a sufficient number of schools; but if they occline, thereby precluding full participation as con-templated by the Commission's regulations, LILCO has the burden of establishing such fact pursuant to 10 C.F.R.
S 50.47(c)(1).
O ALAB-900, slip op, at 36. As Attachment 2 makes evident, LILCO has complied with this guidance and with the provisions of 5 50.47(c)(1) and Appendix E,1 IV.F.6. To the extent subpart B suggests that anything more was required of LILCO, the subpart con-O stitutes a challenge to NRC regulations. Subpart B should be rejected.
f/ A copy of this lettar is provided as Attachment 1. The letter is referred to in the FEMA Report at 102.
O
O 12-Contention 1
- c. Subpart C O In s@part C. Intervenors awe that the 1988 exercise was not "full participa-tion" because of LERO's alleged failure to contact. "either before or during the Exer-c!se," schools outside the 10-mile EPZ. Even if this allegation were true I/ the subpart WWld not be admissible. LERO's "provisions concerning schools outside the EPZ attended by students who reside within the EPZ" are simply not "major observable portions" of the LERO Plan. This is made evident by both the FEMA Report and FEMA g Guidance Memorandum (GM) EX-3, which indicate that there is ng standard FEMA ob-jective requiring the testing of procedures for schools outside the EPZ. See,le, FEM A Report at 11. Intervenors provide no rationale (nor is there any) for their bare asser-g tion that such procedures constitute a "major observable portion" of the LERO Plan,
- d. Subpart D Subpart D should be rejected for two reasons. First, testing of the Nassau Coun-ty Coliseum and Nassau Community College was not required under the "major observa-ble portions" criterion as defined in ALAB-900. No standard FEMA objective required the testing of this element of the LERO Plan.
More importantly, these two Nassau County f aellities could not have been tested in any event, due to the documented refusal of Nassau County to participate in the 1988 exercise.II See Attachment 3. Thus, as Appendix E,11V.F.6, makes evident, the omis-slon of these two facilities does not constitute a flaw in the scope of the exercise.
Subpart D should be rejected.
O I/ The allegation is not true. LILCO solleited the participation of six Long Island school districtr outside the EPZ, though, in the interest of space, these additional 4et-ters are not included as an attachment to LILCO's Response.
{/ LERO did simulate, and FEMA did observe, school relocation center activities at LILCO's Garden City f acility. See FEM A Report at 113. A.'cordingly,it is not true that the "integrated response capabilities" of LEP.O personnti in this emergency function O were not tested.
O
O Contention i
- e. Subpart E g LILCO objects to subpart E as, first, so lacking in specificity and clarity as to !
make it irnpassible to understand exactly what Intervenors are alleging. To the extent '
that this subpart can be read to assert that the 1988 exercise is flawed in scope because O it d d n t inv Ive the dem nstrati n f mergency response activities at more than one :
school district, it is duplicative of subpart B and should be rejected as such.
Second, to the extent the subpart alleges that there was "no demonstration of how buses coming from potentially contaminated zones would be directed upon arriving at relocation or reception centers," it is demonstrably incorrect, as the FEMA Report makes clear:
Checkers who greeted the (school) buses had a 11st of O possibly contaminated buses, and those were directed to go to the Hicksville reception center for monitoring and decon-tamination. Those buses that were later found to be clean at Hicksville were returned to the relocation center with a tag verifying them as clean.
O FEMA Report at 113.
Third, Intervenors' assertion that there was "no demonstration" of how "poten- .
tially contaminated school children would be monitored and deconta.ninated if neces-O sary"is a distortion. As the FEMA Report notes, during the exercise it was . . . determined that (certain) students were coming from a possibly contaminated area and would therefore need "
to be redirected from the Coliseum to the Hicksville Recep-tion Center for monitoring . . . . Af ter monitoring, the stu-O dents were returned to the Cotiseum to await pickup by f ami-ly members.
FEMA Report at 47.
Fourth, the allegation that there was "no demonstration . . of how school chil-dren and other bus passengers would be directed af ter disembarking buses" does not raise an issue regarding the scope of the 1988 exercise at all. As FEMA notes, this "planning issue [is) addressed in the evaluation of Revision 10" by the RAC. FEMA O
Report at 113.
O
O ~14-Contention 1 Finally, Intervenors' complaint that there was "no demonstration of how LILCO O w uld pr vide adult supervision on evacuating the school buses" appears to be, as best LILCO can tell, an assertion that participation by school teachers was required. Not only would this entall "mandatory public participation," but the nonparticipation of O school districts should be assessed, as noted previously, in light of Appendix E 1 IV.F.6.
In sum, subpart E is so inaccurate, vague, and lacking in specificity that the Board should reject it in its entirety.
- f. subpart F O
Intervenors make two allegations in subpart F. Neither provides any basis for the contention. First, Intervenors allege that none of the special facilitics (adult g homes, hospitals, ej.c.) identified in the LERO Plan participated in the exercise. Inter-venors go so far as to claim that "indeed, none of these facilities was so much as con-tacted by LILCO or FEMA during the Exercise." As noted previously, however, every g special f acility identified in the LERO Plan was contacted by LERO before the exercise and asked to participatr. Some of these facilities refused; others agreed. And while the FEMA Report itealf does not explicitly indicate it, at least one phone call (occa-si nally simulate <>. but, more typically, an actual call) was made to each of those f acill-O ties during the 1988 exercise.E Intervenors'second allegation in subpart F is that the participation of "only" 13 v hicles (six ambulances and seven ambulettes) was insufficient to provide "meaningful O
2/ See Attachment 4 to this Response. Attachment 4 consists of certain exercise scenario messages as well as a copy of OPIP 3.6.5. Attachment 2 that was used to record phone calls (actual and simulated) made to special f acilities during the first day O of the exercise. Intervenors were previoualy given copies of these documents. The scenario messages indicate that the initial calls to special facilities were to be actual calls (lf the f acility had agreed to participate), while subsequent calls were to be simu-lated. Simulated calls are identifiable on OPIP 3.6.5. Attachment 2, by the use of the "436" telephone exchange number. All other calls (the exerclea document indicates 25 in all) were actually made to the special facilities, as indicated by the handwritten O_ check marks on the document itself.
O
1 O Contention 1 data" regarding LERO's ability to implement the evacuation of residents of special fa-O cilities. Intervenors further assert that there was no "meaningful!nteraction" between LERO and the ambulance companies that were involved in the exercise. In addition to being hopelessly vague regarding what is meant by "meaningful data" and "meaningful O interaction," both assertions should be rejected as lacking basis.
First, Intervenors' claim that LERO should have used more than 13 ambulances and ambulettes should be dismissed as a challenge to the regulatory provision tMt O states that emergency preparedness exercises should not involve "mandatery public participation." S_ee_ Appendix E,1 IV.F.1. Ambulances and ambulettes are a finite re-source on Long Island, as they are in any locality. The use of large numbers of such ve-O hicles during an exercise wou'd necessarily have an impact on the general public, who rely on these vehicles. Yet even though the number of ambulances and ambulettes used in the 1988 exercise represents a six-fold increase over the number used in the 1986 ex-O ercise, Intervenors maintain that the use of "only" 13 vehicles was inadequate. Interve-nors, however, give no reasons why that number should be considered inadequate nor indicate what number would have been adequate.
O Second, Intervenors' complaint that there was no "meaningful interaction" should be rejected outright. Intervenors offer no credible foundation for this allegation it also contradicts the FEM A Report, which notes that the O bjective to demonstrate the ability and resourecs necessary to implement appropriate protective actions for the impacted permanent and transient plume EPZ popula' ion was met dur ing the simulated evacuation of the mobilit t impaired. Driv-ers and attendants completed their assignol routes and tasks with a high degree of competence.
O FEMA Report at 110. Nowhere does FEMA indicate tha its evaluation of this objective was in any way hindered by a lack of "meanir.gful intertetion" between LERO and am-bulance personnt.1, ambulance companies, and the special f acilldes.
O
'O
Contention 1 Subpart F should be rejected.
- g. Suboart G Subpart G is inadmissible as a matter of law. Intervenors first allege that LERO's "f ailure" to actually transport a homebound disabled person during the 1988 ex-ercise renders the exercise deficient in scope. The NRC's regulations specifically note that emergency preparedness exercises do not require "mandatory public participation."
See Appendix E,1 IV.F.1. Intervenors' suggestion to the contrary here should be re-jected outright.
Second, the claim by Intervenors that the dispatch of "only" two ambulances to test this aspect of the LERO Plan was "far too limited" to comply with Appendix E is objectionable for the reasons given in LILCO's response to subpart F, above,
- h. Subpart H The allegation presented here, that the alleged absence of participation by re-
) ception hospitals in the 1988 exerclr.e constitutes noncompliance with Appendix E, is objectionable as lacking a legally cognizable basis. As FEMA GM EX-3 makes clear, the "testing" of reception hospitals is not a standard FEMA objective. The failure by Inter-venors to explain why LERO's procedures to contact meeption hospitals constitute s "major observable portion" of the Plan dictates that this subpart be rejected. See ALAB-900, slip op, at 22.
- 1. Subpart!
Subpart ! should be rejected at the threshold because it lacks specificity. It is impossible to determine from the face of the subpart what it is that Intervenors are complaining about. Moreover, no matter how it is interpreted, the subpart lacks basis.
)
, For instance, to the extent that Intervenors are suggesting that the dispatch of (alleg-1 I
edly) "only" one ambulance was insufficient, this argument should be rejected for the reasons given in LILCO's response to subpart F, above.E If, on the other hand,
( 1_0/ Moreover, the assertion that only one ambulance was dispatched is untrue. See FEM A Report at 98-99.
l 1
) Contention 1 subpart I is intended to allege that the 1988 exercise was deficient in scope because
) only one so-called GUARD hospital was tested, this is demonstrably untrue, as the FEMA Report makes evident. FEMA Report at 98. Moreover, the testing of both the primary and backup GUARD hospitals is not required, as FEMA GM MS-l indicates. See GM MS-1 at 5.
- j. Subpart J Intervenors' assertion in this subpart tint the absence of testing of congregate
) care centers in the 1988 exercise, as well as the atsence of participation by the Ameri-can Red Cross, renders the exercise less than "full participation" must be rejected as lacking a legally cognizable basis. As the FEMA Report notes:
An NRC memorandum to FEMA, dated May 11, 1988, stated
) that "the Commission in Long Island Lighting C( ,... recog-nized that the American Red Cross charter fr)m Congress and its national policy require that the America n Red Cross provide aid in 'any radiological or natural disaster ' whether or not there are letters of agreement . . . ."
) See FEMA Report at 11 (footnote).NI The refusal of the Amerpan Red Cross to par-ticipate in the 1988 exerciseUI necessarily precluded the testing of this objective, an omission which must be assessed under 10 C.F.R. Part 50, Appendix E,1 IV.F.6. Since
) the congregate care centers are controlled and staffed by the Red Crms, their non-l participation falls within the same analysis as that for the Red Cross. Subpart J is ,
therefore inadmissible.
1
) k. Subpart K In subpart K, Intervenors recycle an allegation from the previous "scope" litiga-j tion that LERO's f ailure to disseminate public information materials prior to the 1986 M/ The NRC-FEMA correspondence cited here is the same as that referenced in LILCO's reply to subpart B, above.
M/ See Attachment 3.
)
O t Contention i exercise rendered that exercise deficient in scope. This assertion was rejected by the o Licensing Board, and Intervenors give no reasons why it should not be rejected now. In particular, the Board took note of the fact that "there is no standard objective that covers the public information materials." LBP-87-32, 26 NRC 479, 491 n.13. Accord-O ingly, the pubtle information materials are not a "major observable portion" of the LERO Plan.UI
- 1. Suboart L O Subpart L should be rejected for the simple reason ' hat the testing of procedures for radiological monitoring for special f acility evacuees is not reybad by the applica-ble standard FEMA objective (Objective 21). See FEMA GM-EX 3 at 14. Intervenors O fler n reason why, in light of this, such procedures are a "major observable portion" of the LERO Plan. See ALAB-900, slip op, at 21-22.U/ n I addition, the FEMA Report makes it clear that these procedures were,in fact, tested during the 1988 exercise. See g FEM A Report at 112. The subpart should be rejected.
O n/ In addition. Intervenors' gratuitous comment that "LILCO's draf t pubtle educa-l I
tion brochure was determined by FEMA to be of questionable utility and effectiveness" is both irrelevant and inaccurate. While it is true that FEMA had expressed some con-cerns over an early version of the draf t brochure, in its review of the latest draf t of the brochure, FEMA stated that O
[blased on recommendations and technical assistance pro-vWed by FEMA's contractor, the new draf t had a much clearer emergency focus and had been reorganized to place emergency instruction sections in the front of the booklet.
. . . Language simplification and more effective use of O graphs enhanced the utility and comprehensibility of the public information brochure.
See Review of Revision 10 of the LERO Plan by RAC (September 6,1988) at 6.
14/ See also LBP-87-32,26 NRC at 501 (Board saw "no reason to reject LILCO's post-O tion that the monitoring and decontamination of special-facility populations requires (sic) no showing in addition to that made for the general public.")..
O
O Contention 1
- m. Subpart M <
1
.O In subpart M, intervenors allege that the 1988 exercise was deficient in scope l due to the purported nonparticipation of the Long Island Railroad (LIRR), the Federal
- Aviation Administration (FAA), the U.S. Department of Agriculture, and the U.S. De- !
g partment of Commerce. The participation of such agencies is not, however, a "major observable portion" of the LERO Plan, as the applicable standard FEMA objective re- l 1
quired only that LERO demonstrate its ability to identify the need for such assistance
!O and call upon federal and other outside support agenetes for that assistance. LERO met that objective by contacting the LIRR, FA A, and Coast Guard (a branch of the U.S. De- ,
partment of Commerce). See FEMA Report at 48. Further, the functions of the U.S. '
'O Department of Agriculture were simulated during the exercise, and LERO demonstrated I Its ability to request assistance from that agency. See FEMA Report at 51. Sutpart M !
should be rejected.
O Subpart tl alleges that LERO's f ailure to demonstrate its capability to implement
, ingestion pathway protective actions in the Con %cticut portion of the ingestion path-
- O way EPZ was "contrary to the requirements of Appendix E." Because Connecticut re-fused to participate in the 1988 exercise N this assertion is wrong as a matter of law.
As the Appeal Board noted, such an omission must be aanmaW in light of Appendix E, 1 IV.F.6. Eg ALAB-900, slip op, at 39.
- o. Subpart O l In subpart O, Intervenors allege that an "insufficien! number" of the 42 bus com-
!g panies under contract to LERO participated in the exercise. This allegation is an at-i tempt by Intervenors to re11tigate an issue they previously lost. In contesting the scope 15/ See Attachment 6.
O
O Contention 1 of the 1986 Shoreham exercise, Intervenors raised the identical claim that the design O and conduct of that exercise did not provide sufficient grounds on which to conclude that an 7Aquate number of buses would be available in the event of a real emergency.
The Licensing Board rejected that argument, noting that "(t]here does not appear to g be any reason to doubt the bus companies' ability to provide buses and thus no reason to insist on a greater role in the exercise for them." LBP-87-32,26 NRC 479, 494 (1987)
(footnote omitted). Intervenors provide no reasons why the Board's ruling should not O again apply to this subpart. Accordingly, subpart O should be rejected.
- p. Subpart P In subpart P. Intervenors take the repudiated rationale that they employ in O subpart O with respect to bus companies and use it to argue that the various ambulance companies with which LILCO has contracted were not tested in sufficient numbers dur-Ing the 1988 exercise. This claim is objectionable for the same reasons given in O LILCO's reply to subpart 0, above. Intervenors'sididiary assertion in subpart P that the "provision of 13 vehicles does not demonstrate the capability to mobilize 193 ambu-lances and ambulettes" is plainly duplicative of a portion of subpart F and should be re-jected n that basis as well.
O
- q. Subpart Q Intervenors' tactic in their final subpart of Contention 1, subpart Q, is to recite O all the organizations, agencies, and entities that Intervenors claim were insurficiently tested during the 1988 exercise and then allege that LERO's purported failure to com-municate with these organizations constitutes, in and of itself, a separate flaw with re-spect to the scope of the exercise. Subpart Q is thus duplicative of several other subparts and is inadmissible on that ground. Moreover, as demonstrated in LILCO's re-sponses to subparts A, B, C, F. H. J and M above, subpart Q has no factual or legal O basis whats ever, in short, as the foregoing makes evident, none of the subparts that O
.O Contention 1 purport to provide the bases for Contention 1 is admissible. Contention 1 should there-
,g fore be rejected entirely.
- 2. Contention 2: Assumptions About Government Interaction with LERO (Do.14-15)
O Contention 2 says that tile exercise was based on a "f alse premise," namely that "LERO personnel would interact with personnel from various governments" and that the various governments would "delegate" to LERO authority to take certain actions.
O The Interven rs argue that there is no "factual basis" for this assumption. In f act, it is the contention, not the exercise, that lacks basis, both legal and f actual. Indeed, it is a challenge to the NRC regulations. Such challenges are prohibited by 10 C.F.R. S 2.75s.
O First, Contention 2 is a challenge to the Commission's "realism" rule,10 C.F.R. 5 50.47(c)(1). The rule recognizes the reality that state and local governments would exercise their best efforts to protect the public and codifies the rebuttable presumption O that, in the absence of a feasible plan of their own, they would follow the utility plan.
Contention 2 is an impermissible challenge to this regulation.
Second, Contention 2 is a collateral attack on the OL-3 Board's findings in LBP-O 88-24, sup op at as-147. There the Intervenors had the opportunity to rebut the pre-sumption of the realism rule. They declined to take that opportunity and detted lawful Board orders in the process. Moreover, they argued in the First Circuit that the real-O ism rule was illegal. Massachusetts v. NRC, s56 F.2d 37s (1st Cir. issa). They argued that it was illegal before the OL-3 Board. They lost in both forums and they should not be allowed to reargue it now.
O Third, Contention 2 lacks specificity as well as basis. The contention is totally lacking in specifies as to how the exercise scenario was incorrect. If, as Intervenors al-lege, the scenario was unrealistic in its assumptions about how the State and County g would interact with LERO, then the burden is on them to specify the respects in which O
) l Contention 2 those assumptions are unrealistic and what Intervenors uculd do to the contrary. But !
) this is precisely the sort of specific fact about what they themselves would do in aa emergency that Intervenors refused to provide to the OL-3 Board. In Contention 2 they again ref use to provide such information, and thus the contention lacks specifity.
) 3. Contention 3: FEM A's "Unfounded Conclusions" (oo.15-19) intervenors do not allege in Contention 3 that there are any fundamental flaws l in the LERO Plan. Instead, they use Contention 3 as a vehicle to deliver an ad ;
)
hominem attack on FEMA's objectivity in grading LERO's exercise performance, in order to argue that the findings and conclusions in the FEMA Report (as well as FEMWs l
overall finding of "reasonable assurance") are "groundless" and "should be given no
) welght by the Board." Contention 3 should be rejected for two reasons.
First, Intervenors f all to allege or specify fundamental flaws in the 1,5RO Plati.
This alone renders the contention inadmissible. Intervenors do offor as purported bases ;
) for the contention five examples of allegedly "minimized" problems that intervenors i
characterize as being "indicative of FEMA's noncritical approach." These examples, ;
however, are redundant of other contentions and do not raise any se.vrate allegations
) of LERO inadequacles.
Second, allegations about the objectivity of FEMA's evaluation of the evereisc in i and of itself are not proper subjects for litigation.IE/ ee, S e_A Memorandam and Order
) (Ruling on LILCO's Motion for Summary Disposition of the Hospital Evacuation issw) i i
16/ Short of allegations of misconduct belonging in other forums, criticism ol !
s FEMA's review process of exercise review is simply not relevant !9 the nitject catter }
/ of this proceeding: assessment of LILCO's emergency preparedness a demonstrater.'in !
I exercise Derformance. In attempting to demordtrate that LEl'.O's pe?formance W/as [
unacceptably flawed, it is not inappropriate for Intervenors to Avance disagreenients, ;
where substantiated, with FEMA findings or conclusions. But FEMA's review proc %s, '
like that of the Staff on safety issues, is not within the subject matter of this proteec-ing. _See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, l'%ts 1 and ;
2), ALAB-728,17 NRC 777,807 (1983), review denied. CLI43-32,18 NRC 1309 (1933).
i L :
O 1 Contention 3 (February 24,1988).(unpublished), slip op, at 5, in which the Board stated that "(1]f a O party has genuine reason to question the behavior of the Commission's Staff, forth-rightness and professionalism demand that the party enter formal charges before the Commission itself and not engage in diversionary attacks in the course of dealing with a O m ti n f r summary disp sitt n." ! The same reas ning sh uld apply t this attack on FEMA's objectivity, which Intervenors have presented in the guise of an exercise con-i tention.
iO
- 4. contention 4: oovernmental interface (no. It-2s) i
- Contention 4 alleges that "LILCO is incapable of ' interfacing' promptly and ef-4 fectively with State and local governments." Contentions at 19. It asserts nine bases, jO one containing nine examples, to support its claims that LERO personnel (1) "consis-1 tently provided inaccurate or confusing information,"(2) "did not know pertinent infor-mation that they were asked about," (3)"contacted the wrong ' governments' for infor-O mation," and (4) "were untimely in their contacts with the simulated governmental j
' officials'." Id aat 19-20. Taken separately or as a whole, none of the "examples" rises i
to the level of a fundamental flaw. At most, they represent minor, _ad_ !Los problems O
that occurred during the exercise. Indeed, against the overall context of the exercise, j Intervenors' assertions are ill-founded and misleading. Accoedingly, Contention 4 should be rejected in its entirety.
lO 1
1 1
- O 9
j H/ Similarly, the OL-3 Board struck testimony in the reception centers proceeding that impugned FEMA's motive in issuing a particular guidance document. Memorandum I
and Order (Ruling on LILCO's Motion to Strike the Testimony of Stephen Cole et al.),
- 0 ASLBP No. 86-529-02-OL, at 11 (June 9,1987) (striking testimony as "mere speculation by the witnesses about the motives of others").
M
{
O Contention 4
- a. Inaccurate or Confusing Information O Out of 655 recorded commun'. cations between LERO and the 10 controllers who played 16 different governmental officials (See FEMA Controller Log Index and FE.'.!A Report at 9), Intervenors are able to point to only nine examples to support their claim 0 that LERO "consistently provided inaccurate or confusing information" to the govern-ment officials. See Contention at 21-23. This small number of examples refutes Inter-venors' claim that problems occurred "consistently." At most, the nine examples repre-sent m n r, a_d h pr b ems whi h, as shown below, would have no effect on the public O
health and safety.
For example, the two instances of conveying incorrect or confusing information g about PARS to government officials (Contentions C.1 and C.4) are on their f ace isolated and minor. Moreover, they would not have affected pub!!c health and safety, since they occurred af ter the PARS had been issued to the public, so that by then the public al-O ready knew what to do. It is ato inonsequential that LERO told the State it was not expecting any ingestion problems, since !? also informed the State that it was still "con-firming" that information (see Contention 4.C. 2) 2.nd since, during an actual emergency, the State would be conducting its own analysis (see i.BP-88-24,28 NRC , slip op, at O
143-44 (1988)). Likewise, the fact that a FEMA co.1 troller (who wns not an evaluator) opined that the school PAR was inappropriate (Contention C.3) is immaterial, since
,g that same PAR was agreed to by the governments before it was released.
Several of Intervenors' nine examples (4.C.4, 5, 7, b, and 9) lack specif tetty as well; they f all to allege even enough f acts to give any indication how the LERO Plan is flaw d. F r example, e mments that a LERO representative was "not much help"(C.4)
O and that LERO representatives showed "confusion" (4.C.5 and C.8) or acted "conten-tious"(4.C.5) do not suggest that the interf ace did not work or that the necessary com-munications were not made. Nor do they indicate how the public health and saf ety O
r l
l Contention 4 f
could have been adversely affected. Contention 4.C.7 is equally nonspecific. It says that LERO gave out contradictory information about the "status of access control" (Contentions at 23), implying that access control had already been implemented. Con- t tradictory information about acetsss control af ter access control has been initiated has i
no health and safety consequences for the public because access control is already i underway. Subparts 4.C.8 and 4.C 9 are even more lacking in specificity; they do not even a!!ege that they involve interfacing with the governments.
i
- b. LERO "Did Not Know Pertinent Information i Subpart 4.D is the only part of Contention 4 that addresses intervenors' claim that LERO "did not know pertinent information." It contains ven gener31 statements and only one example. It is impossible to tell from the contentior. 7, hat effect these al-leged problems are alleged to have on the public health and safety.
The one example Intervenors give says that an unspecified LERO representative was unable to convey how many vehicles were needed to evacuate hospitals. It is not l
clear whether the LERO representative was in a position to know or whether it was '
L necessary for him to know this information. In any event, this incident represents at most a minor. M h2g problem that can easily be corrected. It does not support Interve-nors' claim of a fundamental flaw,
- c. Contacting the Wrone Government Intervenors give only two examples of LERO "contact [ lng) the wrong ' govern-ments' for information . . . ." See Contention 4 C.6 and 4.F at 22, 24. Even if true, making two incorrect phone calls out of 655 communications represents no more than a minor, g hgg problem. Furthermore, there is no allegation here that LERO did not eventually contact the correct official or that important information was not commu-nicated because of the two misplaced calls.
L
O Contention 4
- d. Untimely Contacts O Intervenors provide only two examples in Contention 4 of LERO personnel belt a "untimely in their contacts" with the governments. See Contention 4.A at 21. The first a
says LERO should have contacted the State earlier about the Alert classification. This O example does not present a pubite health and safety concern, since the State would have already been informed of the Alert by the onsite organization. EPIP 1-5 at 3.2 and 5 5.1.6. Furthermore the LERO Plan (OPIP 3.1.1, Att.10) requires only that LERO im-O mediately contact Suffolk County; there is no corresponding requirement to call the State.
The second example says LERO was "very slow" providing the County with dose O rate estimates. This example lacks specificity because, without knowing how "very slow" is defined, what data are being talked about, or when the data were provided, it is impossible to determine if there would have been any impact on the public health and O s fety. In light of the f act that a great deal of information was provided to the govern-ments over the three days of the exercise, one comment about the slow providing of data falls to plead a pervasive,"fundamental flaw."
- e. Remaining Examples
.O The remaining bases of Contention 4 do not fit into the four categories of "prob-lems" identified in Contention 4. Rather, they represent a collection of unrelated and g isolated incidents that would pose no threat to the public health and safety. For exam-ple, Contention C.4.B alleges that LERO should have told the governments about the stren failures. However, even if true this would not have affected the public health and O safety. LERO did send out Route Alert Drivers in response to the stren failures identi-fled by exercise controllers. The public would have been alerted, even if officials were not perfectly informed. See LILCO's response to Contention 5.B. below.
'O O
.27-Contention 4 Contention 4.E says LERO should not have contacted a local governmental off t-elal about school addresses. But even if true, this is not a "fundamental flaw": asking a i
t governmental official for information could not adversely affect the pubtle health and j safety. Addresses for schools outside the EPZ are not listed in OP!P 3.6.5, Att. 3. That information must be gotten from the local governments.
l Contention 4.G alleges that LERO "sometimes failed to ' interface' at all, choos-Ing instead to make key decisions without ' government' concurrence." Contention at
- 24. Two examples are cited. The first says that LERO f ailed to get the State's concur-rence on an ingestion pathway PAR. This allegation is in direct contradiction with FEMA's findings that LERO sought necessary approval for all decisions during the inges-tion phase. FEMA Report at 55. The second example says LERO did not get the State's approval for access control. LERO, however, does not need the State's approval since County pollee are used for access control. This contention does not allege that LERO did not get the County's approval.E Subpart 4 H alleges that LERO reqwsted governmental approval "prematurely."
Even if true, this fact would not affect public health and safety. Premature requests would not result in ill-advised PARS; rather, they would prompt requests for more in-formation, which would result in increased dialogue between LERO and the govern-ments.
Contention 4.1 alleges undue delay in issuing PARS. It lacks legal basis because it does not allege that LERO failed to meet any applicable legal standard. See also LILCO's response to Contention 12, below, lj/ The FEMA Report reflects considerable discussion betwe(n LERO and the Coun-ty. As FEMA observed, prior to the decision to evacuate, the LERO Traffic Coordinator requested information from county pollee officials. FEMA Report at 47.
l At about 3:30 p.m. the access control plan was completed and information about the i details of the plan was discussed with the county police commissioner. M. The access
- control plan was telef axed to the commissioner at approximately 3
- 45 p.m. M.
l
) Contention 4 0
- f. FEMA Findings
) As shown above, Contention 4 fails on its f ace. It falls even more resoundingly once the context of FEMA's overall findings are considered. As noted above,655 co'n-munications were recorded; doubtless other, oral communleations were not recorded.
The FEMA etaluators had the advantage of experiencing this llow of information.
)
Hence the deference due FEMA's findings is well justified.
According to the FEM A Report LERO met the "interf ace" objective for both the plume and ingestion portion of the exercise. FEMA Report at 49,55. As to the plume
)
portion. FEMA found that LERO "discussed g operations on a continual basis with offi-clals of New York Connecticut. Suffoll: County, and Nassau County, Conversations bok place several times each hour. . . . All information received at the LERO EOC (e_4, from the EOF) was promptly shared with the nonparticipating state and local gov- '
ernments." & at 49 (emphasis added). FEMA mado similar findings about the ingestion phase, stating that "LERO EOC personnel enntinued to discuss g operations with and seek assistance and necessary approvais" from governmental officials. E at 55 (em-phasis added).
What letervenors have done in Contention 4 is select a few minor, isolated incl-dents and string them together in an effort to show that LERO could not effectively interface with the governmentt. The incidents cited on their f ace to not show a "fun-damental flaw"t viewed in the context of all that went on at the exercise, they f ail all the more. Contention 4 is inadmissible.
- 5. Centaction 5: Notificatko (Do, 26-30)
Contention 5 should be rejected because its claim that LERO is "incapable of im-l plementing prompt notifleation to the public" is predicated on bases that do not, either individually or collectively, show a fundamental flaw. Moreover. certain of the alleged
) "bases" are based on a timeliness standard of Intervenors' own creation, a standard craf ted in disregard of both KRC regulations and the LERO Plan itself.
l _ --- - - - - - - - - --- - - -- - - - - -
O [
i Contention 5 ;
i
- a. 5 At Siren Fallure !
g The first "example" Intervenors give of LERO's a!!eged inability to provide t
prompt notifleation is the fact that 57 of 89 strens failed to function when LERO acti-vated the system on the first day of the exercise. This example must be rejected, be-O cause the failure f the strens was an ad Itoo, purely mechanical problem that does not give rise to a fundamental flaw. As the FEMA Report makes clear, the "issue of the ac-tual siren failure will oe dealt with through the maintenance and operability require- I i
O ments of FEMA REP-10." FEMA Report at 44. lasues that can be easily resolved ;
through additional testing of equipment are not appropriate subjects for !!tigation. Sg ;
M. Pub!!c Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-879, !
t O 26 NRc 410, 413-417 (1987) (follow-up test of operability of sirens). Moreover, LERO adequately demonstrated its ability to coordinate siren activation with the broadcast of i EBS messages. See FEMA Report at 44.
O D' 8 ' ' ' " " ' ' ^ I ' " ""
Similar'f, Intervenors'second allegation - that LERO personnel "f alled to exer- '
cise good judgment" and did not "follow the Plan" by not dispatching Route Alert Driv-O '"I""P"** ' h* * * * "'I 'I"" II"' ~ 'h * * "# 'd * """ I' ' * " #"'
respond to the actual stren failures, this does not show a fundaments! flaw because a controller message overrode the real-11fe information about the siren failures. As In-tervenors are aware, having been provided with the exercise scenario, the controller j message (LERO Message ME-21) stated that three sirens had failed, and in response LERO demonstrated backup route alerting for these three simulated failures. In this circumstance, as is typteal and proper in emergency preparedness exerciaes. scenario Q
events introduced through a controller message, not actual events, drove exercise per-i formance, iO I
i 4
lO
l O 30-Contention 5
- c. 5 C: Examples O Intervenors' third set of "examples" of LERO's alleged inability to promptly noti-fy the public is an effort to suggest that LERO failed to meet the 15 minute not!!!ca-tion standard of 10 C.F.R. Part 30, Appendix E,1 IV.D.3. Intervenors make this claim O n twithstanding that the FEMA Report notes in wo places that the "15 minute guideline for stren activation and broadcast of simulated EBS messages was met" and that "no problems were observed in issuance of EBS messagas within the 15-minute O guideline." FEMA Report at 44,45.
Contention 5.C lacks legal basis because it is based on Intervenors' incorrect for-mulation of what the 15-minute guideline means. They create their own criterion of O timeliness by (1) focusing on the time that elapsed between what are (in this context) trrelevant events and (2) wrongly implying that the LERO Plan mandates that certain protective action reecmmendations (PARS) be broadcast to the public Immediately upon O the declarati n f specific Emergency Classi!! cation Levels (ECle). Since Intervenors' claims have no basis in either NRC regulations or the LERO Plan, : hey cannot be used to support the contention.
F r examp e, intervencrs link the fact that the LERO EOC "declared"DI an O
Alert at 5:45 a.m. on the first day of the exercise together with the f act that EBS No.1 (recommending the closing of schools) was broadcast at 6:13 a.m. to attempt to suggest O a me measure f untimeliness. In truth, as FEMA correctly indicates in the FEMA Re-port at 40 (Table 1.3), the interval by which ts iudge timeliness under the regulations is the time between when a Drotective action decision is made by the offsite O
M/ Intervenors' statement that the EOC "declared an Alert" is itself inaccurate, since the EOC does not declare plant emergency status; that is done by the plant.
Moreover, under the Plan, LERO does not begin to activate the EOC until the Alert declaration. As is indicated plainly in the FEMA Report at 39 (Table 1.2), at 5:49 a.m.
the Alert ECL was "otserved" at the LILCO Supervising Service Operator (550) f acility O in H!cksville by activation of the RECS and pager systems.
O
O Conten;1on 5 authodties - which in this case was at 5:59 P.m. - and the time at which the EBS O broadcast is made. The troadcast in f act occurred only 14 minutes later, within the re-quired time.El
- d. 5.D: Notification of Deaf People O Finally, as their fourth basis for Contention 5, Intervenors s - a m it "substan-tial numbers of deaf people" would not have received prompt notification due to "sever-al"instances of Route Alert Drivers being "unable to identify the homes of the deaf or O find the r utes that they were supposed to drive." As support for this allegation, Inter-vanors cite the FEMA Report at 75.
Intervenors have mischaracterited FEMA's finding. In fact, the FEMA Report O states only that with respect to Route Alert Drivers dispatched from one Staging Area, there "were some minor problems observed with identification of houses and routes,"
FEMA Report at 75 (emphasis added), and that the "address numbers on several of the O bous2s could not be located," id.UI FEMA also noted that one driver, not "several" as Intervenors assert, had "difficulty in locating the ar9a in which the route was to be run." Id. In short, the problems that FEMA observed are precisely the sort of minor, n
U nonpervasive, ad W, day-of-the-exercise problems that do not identify a "fundamental flaw" and therefore should not be litigated.UI
,d M/ The otner "examples" that Intervenors provide follow this same pattern, though their final example adds a slight twist to the argument. In that particular example,In-tervenors imply that immediate notification of the pub!!c was required onie the EOC was informed of a radioactive release. However, there 11 no regulatory ' equirement that any such immediate announcement be made. Moreover, by that time a PAR advis-ing the evacuation of some zones and sheltering of others had already been bi#cact to m
U the public. This PAR was based on ther knowledge that a release of radiation would occur, M/ Intervenors ignore other FEMA findings that note that the Route Alert Drivers dLspatched from the two other Staging Areas "knew their routes, how to locate the routes, and the vorrect crocedures for their assignment," FEMA Report at St and that U they "were able to proside written instruc; ions on the appropriate protective actions."
JI at 88.
U! As FEMA notes, the Licensing Board has recognized that a four-hour natification period for the deaf is adequate. FEMA Report at 75. Intervenors f ail to allege 'nat.
O " '" ** * "*l"#'
1 0 i Contention 5 In sum, none.of the examples that Intervenors offer provides an adequate basis O f r a claim of "fundamental flaw." Contention 5 must therefore be rejected.
- 6. Contention 6: Emergency Broadcast System (EBS) M=nees (Do. 30-51)
Contention 6 alleges that the Emergency Broadcast System (EBS) messages used
'O by LERO during the exercise were fundamentally ved because they contained inac-curate information, were untimely, were too long and "poorly organized," and "lacked significant details and were otherwise confusing and vague." Conteations at 30-51.
O Contention 6 is inadmissible because it fails to allege a fundamer.tal flaw in the LERO Plan and because further litigation of these messages would serve no useful purpcse.
- a. The E8S Messages Have Been Litigated Twice Before O
The EBS messages were litigated at length in 1983-84, and the Licensing Board approved them in l's Partial Initial Decision. _See_ LBP-85-12, 21 NRC 644 at 660-63, 669-71, 687-91, 698. They were litigated a second time in the 1986 exercise litigation.
O in the context of Intervenors' "shadow phenomenon" contentions (Contentions EX 22.F.
EX 44). See LBP-88-2, 27 NRC at 168-74. The Intervenors alleged that the EBS mes-sages issued curing the 1986 exercise were vague, inaccurate, and lacking in detail. M.
O at 169. They asserted further that inconsistencles in the messages would detract from their effectiveness and decrease the likelihood that protective action recommendations would be followed. M. at 170-71.
.O
'O (footnote continued) given the few minor problems which FEMA observed, any deaf persons would not have been notified within that time. Therefore, Intervenors' assertion that the health and safety of der.f percons would have been "threatened" is speculation and an indirect at-O tempt to reopen collaterally a settied issue.
O
O Contention 6 In its decision on the 1986 exercise, the Board found that "the EBS messages con-g vey the necessary information (about the risk involved in a radiological accident] ei-fectively." 27 NRC at 170. The Board concluded that, although more information could be provided to the public regarding the nature of the risk requiring protective action, O "this matter was adequately addressed in the PID." M. Af ter hearing days of testimony - including Intervenor testimony that the Board deemed "essentially uncontroverted" - about the existence and possible effects on the public of alleged O inaccuracles and inconsistencies in the messages, the Board found only three "signifi-cant" problems:
- a. Some of the messages gave "dose projections," while the LILCO (onsite) orgardzation sometimes spoke in O terms f "d se rate projections"t
- b. the radiation release was variously described in unquantified terms such as "small," "minor," "major,"
and "significant";
- c. the messages stated the cunent emergency classidea-
'O tion level (ECL), without s&ying where in the four-ECL hierarchy each stood.
M.at171-72. The Board found these to be the only EBS problems that contributed.
- O al ng with a copy machine failure and a few misstatements by a spokesperson and a
.Brookhaven scientist, to the overall fundamental flaw that it found in the public infor-mation area !_d. at 167,171-72.b
- b. Contention 6 Does Not Raise Serious Health and Safety Issues, '
.O and Thus Falls to Allege a Fundamental Flaw in the LERO Plan Contention 6 should be dismissed because, despite its length and many subparts, it f alls to allege problems that would seriously affect public health and safety. Instead, O it alleges numerous minor, ad hoc problems in the EBS messages that (where true) are easily correctable.
i
-@ 2_3/ The Board did no1 find, as intervenors assert, that "LILCO's EBS messages were frequently inconsistent and confusing." Contentions at 31. '
- O
O Contention 6 Sixteen EBS . messages totaling 66 pages of information were issued over the O three-day course of the exercise.E Contention 6 contains 20 pages of alleged inaccuracles, inconsistencies, and omissions in these messages. The only parts of Con-tention 6 that find support in the FEMA Report, however, arc subparts A.1 and C. Con-O tention 6.A.1 merely repeats FEMA's comment that EBS message Nos. 4. 5, 6, and 7 contained incorrect information about the projected radiation doses at the site bound-ary. FEMA assessed an ARCA for this problem, and recommended that in the future O EBS messages be "screened to ensure that cumulative information is appropriate to the changed conditions (projected doses)." FEMA Report at 55. Contention 6.C asserts that the EBS messages were too long and poorly organized. Contentions at 42. This as-O sertion rolles on the following FEMA comment:
EBS messages were generally detailed and comprehensive; however, new and important information was usually inserted in the middle or at the end of previous announcements rather than at the beginning where new information should be car-g ried. Due to the excessive length of EBS messages listeners might not stay tuned to the entire EBS messages thereby po-tentially missing pertinent information.
FEMA Report at 45. FEMA lef t this "planning inadequacy" to be resolved by the RAC.
O N25/
Contention 6 docc rs ; allege anything that can fairly be called a "fundamental flaw." The Intervenors have not alleged problems in the EBS messages .. would de-g tract from their overall effectiveness in communicating essential emergency informa-tion to the public. They have instead offered ways in which the messages could be g 2J/ In addition, four messages - Nos. C, 12, 13, and 14 - were simulated.
25/ The only other negative FEMA comment is recited in Contention 6.C.4. FEMA noted that the f act that emergency information is contained in phone books was refer-enced in the second half of the EDS messages, instead of at the beginning. FEMA Re-port at 45. FEMA assessed an ARFI for this problem. W. at 56. Clearly, this does not g constitute a fundamental flaw.
O e
O Contention 6 made a little shorter, a little clearer, or (not necessarily consistently) a little more ex-
.O planatory. Intervenors have simply combed the EBS messages, as anyone could do with a document the length of the messages, and identified every word or phrase that could conceivably be called confusing or inconsistent.
- O A few ex mples show the minor, a_d hoc nature of the problems listed in Conten-tion 6. Subpart 6.A.3 alleges that it was inaccurate and confusing to recommend in EBS No.1 that schools should "immediately cancel classes or implement their early dismiss-O 1 Plans." The short answer to this claim is that the dual recommendation (cancel classes or implement early dismissal) was necessary because at least one school was al-ready in the process of commencing classes. Intervenors assert that this recommenda-O ti n implies that children should first be sent to school only to be sent home again.
Contentions at 33. Intervenors provide no basis to believe that anyone would draw that conclusion, and it is unlikely anyone would. Even if some people did, it would not sig-O nificantly affeet public health and safety.
Subpart 6.C.3 claims that EBS No. 3 was pocrly organized because it referred to listeners within the 10-mile zone (telling them to refer to their brochures) and only O later gave a description of the 10-mile wne. This complaint is truly a minor one. Peo-ple in the EPZ are the only ones who will have received brochurest it is insignificant that people outside the EPZ might have to listen for a few moments longer to know O that they are outside. LILCO disagrees that this example shows "poor organization,"
but even if it did,"poor organization" is hardly a fundamental flaw in the Plan.
Likewise, the examples in subpart 6.D ah xtremely minor. For example, Con-tention 6.D.3 implies that EBS No. 2's direction for people to refer to their brochures to help them understand future messages would be confusing because it did not say the brochure would help to understand _that message. Contentions at 46. It is difficult to imadne my ne ng so confused, but even U a few pple would N confused,it would O
O
'O Contention 6 not significantly affect public health and safety. The deficiency alleged in subpart g 6.D.4 - that people would parse the messages so closely that they would read more zones'into the messages than those listed - is equally implaucible and, in any case, in-significant to public health and safety.
That none of the bases alleged by Intervenors in Contention 6 is a fundamentai flaw is supported by the Shearon Harris case. In the Shearon Harris exercise, because of confusion among the participating counties as to who was responsible for pRparing EBS messages, no initia; or follow-up me.ssager were issued throughout the entire exercise. Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant), LBP 11,23 NRC 294 at 403. Nevertheless, the Licensing Board summarily disposed of an in-tervenor's contention on these and other EBS problems because it did not state a funda-mental flaw. Id. at 403-07.
Also supporting LILCO's view that Contention 6 is inadmissible is the principle that the contention comes at the end of a long, thorough process designed to reveal se-rious problems. Further 11tigation of the messages in the LERO Plan would serve no useful purpose. If the last round of hearings is a guide, both sides would bring in expert witnesses - reporters, sociologists, and politakers - to argue about whether the identi-fled words or phrases are in fact confusing or inconsistent. This intense focus on minor, ad hoc matters would not contribute to the pubile health and safety.D in short, the Board should decline to initiate that process anew because Conten-tion 6, on its face, f ails to allege a "fundamental flaw"in the LERO Plan.
O 26/ The EBS messages could be litigated ad infinitum. For example, subparts A.2 and B.2 attack the explanations given for protective actions (the dairy animal recommenda-tion in EBS No. 2 and the advice for members of the public to go to reception centers in EBS No. 4). These explanations were included af ter the last exercise, in part because Intervenors claimed they were needed. Now Intervenors want to litigate the adeauacy O of those explanations. These contentions should be rejected.
O
O Contention 6
- c. Contention 6 Is inadmissible for Other Reasons O Contention 6 is inadmissible for three other reasons as well: First. Contentions 6./., C, and D allege the same type of minor inaccuracles and inconsistencies that were litigated and found not significant in the last round of litigation. See LBP-88-2,27 NRC O at 169-72 and part 6.a above. since Contention 6 merely repeats the same types or deficiencies, and does not allege any of the sort the Board found significant last time, it is inadmissible.
O Second, Contention 6.B. which alleges that the messages were untimely, has no basis in NRC regulations. It alleges that EBS messages were untimely as compared with the times various LERO personnel first learned of sertain facts. Contentions at 36-41.
O But subpart B is based on Intervenors' own EBS timeliness standard instead of on the 15-minute standard in NRC regulations and guidance. F'd!A found that the EBS messages were timely issued. FEMA Report at 45; see 10 C.F.H. P.'rt 50, App. E,1 IV.D.3 (1988);
NUREG-0654 App. 3.
O Third, many of the alleged "EBS problems" are cot EB;i problems at all. They are instead protective action decisionmaking issues, because they challenge the timing or correctness of plume or Ingestion pathway protective action recommendations. The fact that such PARS are contained in EBS messages is incidental to the Intervenors' concerns that the PARS were wrong or were untimely made. Accordingly, subparts g 6.A.3, A.4, A.5, B.3, B.4, D.1, and D.5 are redundant of Contentions 11 and 12 and are more appropriately addressed in connection with those contentions,if at all.
- 7. Cfontention 7: Emergency News Center (pp. 51-60)
O Contention 7 alleges that the Emergency New Center (EOC) functions during the exercise demonstrated a fundamental flaw in the LERO Plan. It alleges, in eight subparts, that (1) LERO failed to provide timely, accurate, consistent, and non-O confusing information to the news media: (2) the news briefings "did not ensure public O
O Contention 7 and media confidence"; and (3) LERO f ailed to prevent misinformation and respond ade-O quately to media questions. Contentions at 51. Contention 7 should be rejected in its entirety because it is vague and speculative, lacks specificity, and falls to allege facts sufficient to constitute a fundamental flaw in the Plan.
g FEMA found that all eight ENC objectives were fully met. FEMA Report at 68.
Among FEMA's specific findings were that (1) ENC activation wr.s timely; (2) office equipment and facilities to electronically receive, reproduce, and distribute informa-g tion to the press were "excellent"; (3) copying capabilities for the distribution of infor-mation to rumor-control personnel and EBS messages to media personnel were timely; and (4) press releases and other hard-copy documents were posted for easy reading and O raiew. FEMA Rep rt at 68-6L FEMA assessed no Dedciencies, no ARCAs, and only two ARFis for ENC functions. I_d. at 71.
- a. Contention 7 Falls to Allege a Fundamental Flaw g Despite FEMA's near-flawless evaluation, Intervenors claim that the exercise showed the ENC operation to be fundamentally flawed. Contention 7, like Contention 6, strings together a number of unrelated, relatively minor alleged problems, some illus-g trated with examples and oth'ers not, that are said "individually and collectively" to constitute fundamental flaws. Contentions at 53. But once again Intervenors have al-leged only minor, ad hoc problems occurring on the exercise days.
None of the elght subparts alleges facts that would demonstrate a fundamental flaw; most of subparts A-D and F-H recite minutiae. Subpart A, for example, alleges a "fundamental flaw" based on the following: press anferences allegedly starting later than the times announced,UI spokespersons allegedly "jousting" with reporters, and the M/ Subpart A.1 does not say how late the press conferences were, but LERO records show that the first press conference, for example, was only two minutes later than an-nounced.
O O
O Contention 7 alleged failure to . provide spokespeople (rather than technical advisors) between O briefings.2_g/ The contention does not say - and it is difficult to imagine - how these alleged problems, even if true, could have a significant detrimental effect on public health and safety. Thus, subpart A, even if true, does not allege a fundamental flaw in the Plan.
.O Subpart B is contrary to the Licensing Board's previous findings and internally in-consistent. It alleges that the first press briefing should have been held sooner, be-
.O cause "in a real emergency, reporters would converge upon the ENC within moments af ter learning about a Shoreham emergency" and if no press briefing were held from 7:16 (the time of ENC activation) until 8:12 (the time of the first press conference),
.g there would be confusion, speculation, misinformation, and rumors. Contentions at $5-
- 56. This is particularly so, Intervenors say, because.the only news release posted at the ENC prior to 8:12 was LERO News Release No.1, which reported an Alert Condition.
O T2 pre ise argument has already been re#cted by tW Board:
The flaw in the Suffolk witness' testimony is their assumption that at the initiating event of an accident, a large and in-tensely interested press corps would instantly materialize.
We do not find this assumption credible. First, we believe O that the interest of the media would develop over a period of time as the accident unfolded. Second, it is obvious that, just as it takes some time to mobilize the ENC Staff, it will also take some time to mobilize the press at the ENC.
O 2_g/ On this subject FEMA stated that:
Eight press briefings were conducted on the first day, and six on each of the next two days. LERO also provided a O spokesperson for follow-up interviews af ter each press briefing. The ENC staff also conducted sessions before the press briefings to prepare media representatives for the upcoming briefing. LERO provided a radiation health spokesperson who was not included in the plan.
O FEMA Report at 69. Intervenors' claim in Contention 7.A.3 is contradicted by FEMA's description of the ENC personnel constantly available to the press.
O
.O ;
l Contention 7 LBP-88-2,27 NRC at 153. This matter is res judicata. Moreover, contrary to subpart O B's allegation that the only news release available at the ENC before the first press conference was LERO Release No.1, the subpart itself says that LILCO News Release No. 4, reporting the SAE declaration, was issued at 7:40. Contentions at 55. In short, O Intenen rs' claim in subpart B is refuted by f acts recited in the contention itself.
The remaining subparts to Contention 7 likewise allege only minor matters that, even if true, would be only minor, ad hoc problems. They fall to allege with any basis g how their assertions, even if true, would significantly harm the public health and safe-ty. They should be rejected.
- b. Portions of Contention 7 Lack Basis and Specificity g Besides falling to allege a fundamental flaw, several subparts of Contention 7 lack basis and specificity, as explained below.
Contentions 7.C. D, and G are impermissibly lacking in specificity. Subpart C all ges that the Plan is fundmentally flawed because "the news releases lagged far be-O hind the actual state of events during the exercise." Contentions at 56.EI Subpart D alleges that LERO continually issued "other information" to the public (through the media) that conflicted with EBS messages, but fails to specify any instances in which that information was "sometimes confusing" or is ,9ve any examples of actions LILCO should have taken "to prevent such conf!! cts." Subpart G alleges generally that there g was ineffective coordination between LILCO and LERO. These subparts give no specif-ics.
O M/ Intervenors pressed the same claims af ter the 1986 exercise. Sc_e Contentions EX 38.B, C, and G, discussed in LBP-88-2, 27 NRC at 153-55. This Licensing Board found that "the circumstances surrounding the distribution of news releases are not fun-damm . ally flawed or a contributing factor to the fundamental flaw we have found."
LBP 88-2, 27 NRC at 157 n.37. Likewise, Contention 7.C does not allege facts that O wc,ld show a fundamental flaw. ,
O
O ~41-Contention 7 Contentions 7.C, D, and F are speculative and without basis. Subpart C theo-O rizes, without any basis, that ENC personnel would have been unable to control press briefings and would have been forced to spend most of their time correcting misin-formation. Subpart D baldly speculates that there would have been "confusion and O speculation caused by conflicts between the EBS messages and live radio and TV re-ports." Contentions at 57. Subpart F claims that the alleged untimeliness of EBS mes-sages would have created "major confusion" for the media and the public and that "con-O fusi n, alarm and speculation would have resulted." Id. at 58-59. In these subparts, no claim is made that the alleged bad results in fact occurred during the exercise; rather, they allege what "would have happened" under some set of circumstances. Thelse
.O subparts are exercises in sheer speculation; they do not provide the credible basis which, particularly at this late stage, is required to support a contention.
Finally, Contentions 7.F and H lack basis. Contention 7.F alleges that "the un-O timeliness f LERO's EBS messages would create major confusion for the media and the listening and viewing public." Contentions at 58. But subpart F has no basis in the reg-ulations. The only timeliness standard for EBS messages is the 15-minute requirement
.O c ntained in 10 C.F.R. Part 50, App. E,1 IV.D.3 and NUREG-0654, App. 3. Moreover, FEMA found that the EBS messages were timely issued. FEMA Report at 45. Conten-tion 7.H, which criticizes LERO for not telling the media about the real-world siren O failure, lacks basis because it concerns out-of-scenario information. The scenario said that three strens failed to sound, and that is what the in-scenario media were told.
To summarize, Contention 7 should be rejected because it is an undLc".riminating
- O recitati n ! min r, ad h pr blems that would not have affected public health and safety and thus would not constitute fundamental flaws even if true. In addition, most of the subpara allege few if any specific f acts to support their general allegations. In-
!g stead, Intervenors have simply speculated, with no discernible basis in fact or in i
lO
[ . _ _ _ . .
O 1 Contention 7 regulatory requirements, about what "would have happened" had the exercise been a
- O.. real emergency. Contention 7 should be rejected in its entirety.
8.' Contention 8: Rumor Cnetrol (Do. 60-66)
Contention 8 alleges that the exercise revealed a fundamental flaw in the O
LILCO/LERO Rumor Control operation. The contention makes two basic claims: that Rumor Control personnel were unable to provide prompt responses to rumors and inqui-ries from the public and that the responses given were not "satisfactory and reason-10 able." Contention at 62-66. Contention 8 should be rejected because it alleges prob-lems that cannot constitute a fundamental flaw.
r Contention 8 mirrors Intervenors' earlier Contentions EX 39.B and C on the 1986
!O l- exercise litigation. Af ter exhaustive litigation, the Licensing Board found that the alle-gations made there - that rumor control. responses were untimely and unreasonable -
do not rise to the level M a fundamental flaw. LBP-88-2,27 NRC 85,162-66. Conten-O tion 8 makes the same allegations, except that they are couchod in terms of the 1988 exerche.EI Thus, even if the facts in Contention 8 are accepted as true, they do not reveal a fundamental flaw.
The minor nature of the alleged flaws is eviden' when viewx! in the cor. text of the entire exercise. In its 1986 exercise report FEMA assigned t Deficiency with re-spect to copying capabilities at the ENC partly because Rumor Control personnel were O
not always given accurate up-to date status reports with wb'.ch to answer inquiries.
FEMA Report (April 17,1986) at 53. FEMA has found in its analysis of the 1988 lO g/ Contention 8 repeats Intervenors' earlier claim in Contention EX 39.B that "re-sporses were generally delayed by more than 30 minutes, and frequently longer." Con- -
tentions at 62. This is wrong. Taking tr.to account the more than 900 rumor inquiries fielded during the exercise, the average turnaround time in the 1988 exere.!se was about 14 minutes on Day 1 and about 15 minutes on Day 3. In any case, this Licensing uoard O has found that allegations of tura.around times of about 39 minutes in the 1986 exercise do not show a fundamental flaw. LBP-88-2,27 NRC at 163-64.
O
O "3' Contention 8 exercise that that Deficiency has been "corrected and verified." FEMA Report (Sept. 2, O 1888) "' 'pe ut any, F MA has fouM that the "mmor-mntml stan memkrs re-ceived individual copies of both EBS messages and press releases, so that thair re-sponses were correct and timely." M. at 70. The FEMA Report contains no negative O mments about Rumor Contml ad identMies M Deficiemies, ARCAs, & ARFB. M.
at 71.
In 1988 the Rumor Control network fielded over 900 phone calls during the exer-O ise, mmparM t 35 dwing the 1986 mmise. FEMA Reput (Sept. 2,1988) at 70; sm LBP-88-2, 27 NRC at 163.
FEMA concluded that "(t]!mely and accurate responses were made by rumor-control personnel." M. Contention 8 alleges nothing that calls into question FEMA's conclusion. Instead, it singles cut a h1ndful of the rumor re-sponses and casts them in light of the Intervencrs' earlier, unsuccessful claims that the responses were untimely, unreasonatile, and showed poor judgment. This Licensing g Board rejected those claims af ter the last round of litigation as not demonstrating a fundamental flaw. Consequently the Board should now reject Contention 8 at the threshold.
O 9. Contention 9: EBS Message as a Primary Sarce of Public Information (pp. 66-68)
Contention 9 alleges that LERO was slow in getting out information and that therefore the news media would have turned to other sources in a real emergency. It should be rejected because it lacks basis and falls to allege a fundamental flaw.
O 3_1/ Intervenors concede that this problem did not arise h; the 1988 exercise by not including any allegations about it in their contention. Intervenord' Contention FY 9.A in the 1986 litigation claimed, based on the FEMA Deficiency, that "(d]uring that (1986) exercise, the LILCO District Offices and Call Boards consistently had incorrect or superseded information" and thus "were unable to provide accurate and essential in-formation to members of the public or the press." Centention 8 makes no such claim lO with respect to the 1988 exercise.
O
) Contention 9 Contention 9 lacks basis because it relles on some unarticulated EDS timeliness j standard of Intervenors' own making. Contention 9 alleges that the EBS messages "were consistently slow in being issued," giving as an example EBS No. 2, which was broadcast at 8:08 (Day 1),35 minutes af ter the Site Area Emergency (SAE) was declared
) at the EOC. Contentions at 67. Intervenors claim that the EBS messages would be dis-regarded because the media would have obtained and broadcast information before it was "officially" disseminated in EBS messages. Id.
j The only "timeliness" standard for EBS messages in NRC regulations or guidance is the 15-minute standard: EBS messages must be issued within 15 minutes of the time offsite emergency responders (in this case, LERO and Suffolk County) agree to issue a p protective action recommendation. EBS messages do not compete in a race with news
! releases or media reports; they must be Israed within 15 minutes of a protective action decision. In the 1988 exercise, FEMA found that "in general, EBS messages were pro-j eessed effectively and effieleMiy, and no problems were observed in issuance of EBS massages within the 15-minute guideline." FEMA Report (Sept. 2,1988) at 45. Conten-tion 9 alleges nothing that rebuts this finding, and its allegations centered on other, spurious timeliness standards have no basis in NRC law.N
)
Moreover, even if taken as true, Contention 9 does not allege a fundamental thw in the LERO Plan. It is true that the EBS messages are the primary means by which to communicate official emergency information and protective action recommer,dations to the public; this Licensing Board has said so. LBP-88-2,27 NRC at 151. However, there is no reason to believe - and Contention 9 offers none - that this function of
)
3J/ Contention 9 does not say how the media "knew soon af ter 7:33 a.m. that a Site ,
Area Emergency had been declared." In this regard the benchmark time given in Con- ;
tention 9 - LL, the dec!- ation of the SAE at the EOC at 7:33 a.m. -is irrelevant, be- '
cause members of the ms La were not (and, in a real emergency, would not be) present t at the EOC.
)
)
- O Contention 9 EBS messages would be diminished in any way by the media's broadcasting a new emer-O gency classification level (however the media learned of it) moments b) fore its an-nouncement in the "official" EBS messages.E Intervenors' claims to the ecntrary are pure speculation. In short, a claim that the media may occasionally "beat out" an EBS ,
O message in announcing a new piece of information does not allege a fundamental flaw L
in the eme.gency plan.
- 10. Contention 10: Shadow Phenomenon (pp. 68-69) '
O Contention 10 raises, for at least the seventh time3 8 in this proceeding, the "evacuation shadow phenomenon." Intervenors argue that, because of the alleged in-ability to convey accurate information to the public recited in Contentions 6-8, there O would be a large "evacuation shadow"in the event of an actual Shoreham accident. The crux of the contention is the claim that the LERO Plan "does not account for such a large evacuation shadow" and "LERO's ability to handle such conditions was not tested ;
'O during the exercise." Contentions at 69. Relying on the Board's earlier statement that a controlled evacuation "probably could not be achieved"if there were poor information and therefore "an excess evacuation,"1.1tervenors conclude that the "fundamental f;aw
- O found by this Board in LBP-88-2 continues to exist." Contentions at 69; see LBP-88-2, 27 NRC at 173.
!O 1
33/ Contention 9 does not allege that media sources were reporting different protective action recommendations from those in the EBS messages; rather, it alleges only that the media would have announced the new emergency classification before the O EBS.
3_4/ The shadow phenomenon was addressed in connection with (1) "Phase !" traffic congestion issues, (2) the "Phase !!" shadow phenomenon and traffic issues in 1983, (3) the "credibility" issue in 1984, (4) the reception centers issue in 1587, (5) the exercise litigation in 1987, and (6) Intervenors' claim, ultimately rejected by the Commission.
O that the EPZ should be expanded because of the shadow phenomenon. .
O
)
Contention 10 in short, Intervenors argue (in Contentions 4-8) that flaws in emergency mes-sages are fundamental flaws and also (in Contention 10) that how people might react to the messages is a fundamental flaw. If the Contentions 4-8 on which Contention 10 is based are inadmissible, as LILCO argues above, then Contention 10 is inadmissible also.
Even assuming that one or more of the emergency information contentions are admitted, Contention 10 is still not admissible. In 1986 a Contention EX 44 was of-fered, claiming that a large evacuation shadow phenomenon would arise in an evacua-tion as a result of an inability of LERO to provide adequate information to the public.
( Prehearing Conference Order at 25 (Oct. 3,1986). The Board denied admission of the
! contention, stating that it need not look again at the consequences of shadow evacua-l tion because this had been previously litigated. M. at 25-26. The Board said that "If In-tervenors prevail on Contentions EX 38 and EX 39 and the evidence is sufficient to l conclude that a large shadow evacuntion will occur, Intervenors will be free to claim that this constitutes a fundamental flaw in the plan because the evacuation could not I
be controlled." M. at 26. The Board therefore consolidated the first full sentence of Contention EX 44 with EX 38 and EX 39 and denied the admissibility of all other parts and bases of Contention EX 44.EI
)
Similarly, as to the present contentions, either the emergency information broadcast during the exercise met NRC standards or it did not. If it did not, there is no need to determine the effect on the public. If it did, then it is not permissible for i M/ The Board also stated that
( We find no basis for assertions of Intervenors that we must
) require LILCO to test its preparedness for a large shadow evacuation or to plan for an ad hoc expansion of the EPZ.
Planning to take an a_d hoc action seems to us to be an oxymoron.
Prehearing Conference Order at 26 (Oct. 3.1986). Despite this ruling, Intervenors
) renew the same assertions in Contention 10.
i
)
O Contention 10 Intervenors to argue that information that meets NRC requirements would have an O unac eptable effe t n the public. The essential superfluousness of "shadow phenome-non" contentions in exercise litigation was essentially what this Board perceived in 1986.E O Bey nd that, there is absolutely nothing to be gained by holding yet another hearing on how the public would react in a radiological emergency. The OL O Board has found at least three times that opinion polls such as the Intervenors advocate cannot '
predict human behavior in a future, undetermined emergency.E/ At least part of the reason is that people's behavior is determined by a host of situational f actors that can-not be simulated by opinion polls. Human behavior, like traffic, has been plumbed to
.O bedrock. Litigation of Contention 10 would mire the hearing process in the futile task of predicting what effect a word here or a phrase there in EBS messages would have on the number of people who would evacuate in a future, undefined emergency. It would be an utter waste of time.
- 11. Contention 11: Ingestion PA Rs (po. 69-76)
Contention 11 alleges that the exercise demonstrated a fundamental flaw in that
- O LERO failed to recommend "timely and appropriate" ingestion pathway protective ac-tions. Contentions at 69. Specifically, this contention focuses on the timing of some of the ingestion protective action recommendations ("PARS"), on LERO's judgment in 40 issuing milk PARS, and on the adequacy of PARS for persons who refused to evacuate.
For the raasons stated below, Contention 11 should be rejected in its entirety.
- O g/ Appendix E to 10 C.F.R. Part 50 defines a full participation exercise as one "without mandatory public participation." 10 C.F.R. Part 50, App. E 1 IV.F.1 (1988).
Issues about the behavior of the pub!!c are planning issues, not exercise issues.
M/ LBP-85-12, 21 NRC 644, 664, 676 (1985) LDP-88-13, 27 NRC 509, 523 (1988);
LBP-88-24, 28 NRC , slip op, at 58-59 (Sept. 23.1988). Intervenors also submitted jO survey (and focus group) data in support of their shadow phenomenon contentions in the last exercise litigation. Despite the considerable time spent examining this information in discovery and at hearing, the Board did not consider it. LBP-88-2. 27 NRC at 174.
O
) Contention 11
- a. Contentions 11.A and B
) In Contentions 11.A and B, Intt:rvenors allege that LERO should have issued in-gestion PARS on Day 1E for the l'J-mile and 50-mile EPZs. Even assuming that the alleged facts are true 3_2/ they do not demonstrate a "fundamental flaw." First, in the
) context of all the ingestion pathway activities that occurred over the three days, this "problem" is a minor and ad hoc one. FESTA findings, which deserve deference here, demonstrate that point. According to the FEStA Report, "the dose assessment staff as-
) sessed . . . doses excellently" and "all facets of ingestion dose projection were examined in more than adequate detail." FEMA Report at 51. Further, FESTA found that the "in-gestion pathway PARS were well thought out and were based on appropriate PAGs
) .... " w.
Second, the testa Report does not support Intervenors' claim that sufficient data were available on Day 1 for ingestion PARS for the 10-50 mile ingestion pathway.
Rather, sufficient data were not available until Day 2. Ida This fact, however, does not demonstrate a flaw in LERO's plan because, as the FE5fA Report notes, the "ingestion dose assessment function was impacted by errors in the scenario data. Resolution of these errors required considerable time during Day 2 of the exercise, which slowed the overall progress of the ingestion pathway phase." I_d. That fault is not LERO's, nor does l It show a "fundamental flaw"in the plan. In a real emergency, this problem would not b
3_g/ Day 1 began at 4:29 a.m. on June 7 and continued through to 9:25 a.m. on June 8.
Day 2 began at 10:30 a.m. and continued throughout the day until 4:52 p.m. Day 3 began at 8:00 a.m. on June 9 with a time warp of one day. Day 3 ended at the end of the exercise at 4:10 p.m. There was no time warp of 20 days, as planned in the scenar-lo, because all objectives had been met by that time.
32/ As discussed further below, Intervenors' allegation on page 73 that "LILCO f ailed to develop any ingestion PARS on Day 1 or Day 2" for the 10-mile EPZ is without basis.
EB3 messages No. 8 on Day 1 (9:06 a.m., June 8), No.10 on Day 2 (11:35 a.m., June 8),
and each message thereaf ter contained ingestion PARS. Only the ingestion PARS for areas more than 10 miles from 6.3 Shoreham plant were not issued until Day 3. FE51A
) Report at S t.
)
O !
Contention 11 have occurred, the LERO staff would have been able to work into the evening past the o artificial end of the day (4:52 p.m.), and the State would have been doing its own inde-pendent analysis of the ingestion pathway (see LBP-88-24, 28 NRC , sllp op, at 143-44 (1988)).
O b. Contention it.C <
Contention 11.C attempts to fault LERO's EBS messages that said that milk i
PARS were required by NRC regulations and did not mean that a release had occurred g or would occur. Contentions at 74-75. These statements were appropriate and neces-sary because they helped explain why milk PARS are made and what they mean to resi- .
dents of the area. They do not imply, as Intervenors contend, that other emergency in-O formation should be ignored. Also, contrary to Contention 11.C LERO's statement that people should follow LERO's recommendations about consuming food "as a precaution" does not improperly minimize the risk. Rather, it encourages the public to avoid risks O by taking precautionary measures. Both of these complaints are trivial and do not show that the public health and safety would have been adversely affected. Any problems they may represent can easily be corrected.
4
- C * * "*
- 1 1 ' D O
Intervenors state in Contention 11.D that LERO should have broadcast ingestion PARS earlier on Day 1 for those persons who had been advised to evacuate but did not.
O Had LILCO done so, however, Intervenors would undoubtedly have claimed that the message undermined the evacuation, which was already in progress, by giving out con-flicting information and by suggesting that the danger was not very great, that evacua-O ti n might not be necessary, and that actions other than evacuation could safely be taken.
In addition, Contention 11.D lacks basis. It asserts that LERO never specifically O a N pe ple t take "any intNtion pathway precautions" and that EBS No.17 was J
l O
l
)
- Contention 11 unclear as to whether it applied to evacuated zorn, dowever, tne EBS messages them-selves, which are the "huas" of the Contention, contradict Intervenors' claim. Toward !
the end of Day 1, 000 No. 8 contained an hgestiore PAR for all persons still within the f I
10-mile EPZ: '
) Food in homes or stores in the (0-ini:0 Emergency Planning Cone which was frozen, re:rigeMed or securely packaged prior to the incident is safe to consume . . . . As a ,
i
' precaution . . . fruits ar.( vqetobles locally grown and from j gardens stored prior to the incidunt should be avo'ded. In ad-l dition, as a precaution. 50 wever, all fruit and vegetables l j' stored inside prior t', Le incident should be washed before conskmption.
EBS No. 8 at 2. Then, at the beginning of Day 2 EBS No.10 recommended a sheltering !
r l PAR for those persons who refused to evacuate. EBS No.10 at 4. Intervenors note this fact at page 79 of their Contentions. Third, EBS No.17 made ingestion PARS for all t
persons in the 10-mile EPZ, using virtually the same language quoted above from EBS l No. 8. See EBS No.17 at 5. In short, there is no basis for the Contention. '
- d. Contention 11.E Contention 11.E contends that LERO was untimely issuing milk PARS. Conten-tion 11.E lacks lega! SLd factual basis because it falls to tie the Contention to the ap-
)
propriate legal ctv.darch (see 10 C.F.R. Part 50, App. E,1 IV.D.3) and to show how '
LERO did not bwet that standard.
Contention 11.E is correct that milk PARS are made automatically at the Site
) Area Enfergency ("SAE") and the General Emergency ("GE"). The LERO Plan says that !
"an immediate recommendation will be made to place milk animals . . . on stored feed" c
at the SAE and GE. See OPIP 3.6.6. SS 5.1.1.1.c and d. This does not mean that an EBS t i
message must air instantaneously. Decisions about plume PARS must be made that are of more immediate attention. Once those decisions are made, the EOC immediately I prepares an EBS messaga containing all the appropriate PARS for approval and broad- !
)
east. That process naturally requires some time.
~ , . , . _ _ - - , - . - - - - _ _ - - - - - _ _ _ - - _ - - _ - - - .
'Ol' O
Contention 12
- 12. Cr itt ntion 12: Plume Exposure Pathway PARS (pp. 77-80)
O Contention 12 says that the exercise demonscrated a fundamental flaw in that LERO allegedly took too lor.g tc make plume exposure PARS, made inappropriate PARS, and did not timely amend EBS messages containing PARS. Some of the examples pres-O ented repeat those in other contentions and, as such, shour' be stricken for the reasons stated in LILCO's responses to those contentions, as well as for the reasons noted below. See LILCO's response to Contention 5 (which duplicates assertions in Conten-g tions 12.A and B) and to Contention 11.D (which duplicates assertions in Contention 12.C). Contention 12.E. which concerns EBS messages and road impediments, should also be rejected because it provides no factual basis for the allegraions in Contention 12 O and b cause it does not concern the mMng or the issuing of PARS to the public. As shown below, the remaining examples also present no !!!! gable issues,
- a. Contentions 12.A and B O Contentions 12.A and B should be rejected for lack of legal basis because they do not tie their complaint to any legal standard. See 10 C.F.R. Part 50, App. E,1 IV.D.3. '
It took 49 minutes to make evacuation and sheltering PARS and 24 minutes for the early O dismL%al PAR. See Contentions at 77,29. The regulations require only that decisions about PARS be made "promptly." Intervenors do not show how LERO's actions failed to satisfy that standard, g Contention 12.B's statement that the school PAR in EDS No. I should have rec-ommended cancellation and not early dismissal does not rise to the level of a fundamen-tal flaw. Even assum!ng that cancellation alone was the proper PAR, recommending g early dismissal would have had the same effect of keeping children from going to school. Thus, the health and safety of the children would not have been threatened.E O
@ Intervenors' assertion that the early dismissal recommendation implied that chil-dren should first be sent to school, only to te turned around and sent bac, is silly, and, in any case, is unsupported by anythh g oth9r than Intervenors' speculation.
O
_ _ ._ _ _ _ _ _ _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -J
) Contention 12 Furthermore, this statement lacks factual basis because EBS No.1 included a recom-
\
) mendation to cancel school sessions as well as to dismiss them early. Specifically, it said: "Schools within the 10-mile emergency planning zone should immediately cancel l classes or implement their early dismissal plans." EBS No,1 at 1 (emphasis added).
- b. Contention ~12.D Contention 12.D lacks specificity and legal t' asis because it falls to support its al- i legation that "LERO personnel had already determined the need for . . . persons to re-port to reception centers one hour earlier" before broadcasting that fact to the public in EBS No. 4. Contentions at 79. First, this contention falls to tie its complaint to a legal standard and f alls to allege that LERO did not meet that standard. Second, Inter-venors' facts conflict with FEMA's recitation of the facts that EBS No. 4 "was recom- f mended at 1130 hours0.0131 days <br />0.314 hours <br />0.00187 weeks <br />4.29965e-4 months <br />, and approved at 1206 hours0.014 days <br />0.335 hours <br />0.00199 weeks <br />4.58883e-4 months <br /> af ter concurrence of county offi- f cials. . . . Once approved, EBS message #4 was processed in a timely fashiori." Id. at
) 45. Intervenors also ignore FEMA's findings that the "objective of demonstrating the ability to make appropriate protective action deelstons . . . was met." FEMA Report at ;
- 44. As noted above, FEMA findings are entitled to deference. Carolina Power and '
Light Co. (Shearon Harris Nuclear Plant, Units 1 and 2), LBP-85-49, 22 NRC 899, 910
) {
(1985).
{
Even accepting as true the postulated delay, the health and safety of the public
{
would not have been threatened, since evacuees would still have been in the process of f
evacuating at the time EBS No. 4 told the evacuees to go to the reception centers. The
! contentions themselves show this. (The evacuation was recome.1 ended to the public at f 10:2C a.m., and evacuees were told to go to reception centers less than two hours later, I
at 12:11 p.m. Contentions at 77,79.) Therefore, there would have been no measurable l
delay getting to the reception centers and hence no increase in dose. The public health j and safety would not have been threatened.
)
l
) -S3-Contention 12 The allegation that EBS No. 4 did not explain thoroughly why people should re-
) port to reception centers $ si at most a minor, ad hoc problem and r.ot a fundamental flaw in the Plan. First, the public health and safety were protected by issuing the PAR to go to the reception centers. Second. LERO repeateJ1y said in its EBS messages that
) evacuees should read and review their emergency brochure. The brochure contains the information that the contention complains was not broadcast,
- c. Contention 12.F Contention 12.F alleges that LERO should have broadcast PARS to residents of adult homes, nursing homes, and hospitals. Contentions at 80. This complaint does not go to the exercise performance but to how the plan itself is written. LERO executed
) its procedures exactly as they should have. EBS messages directed toward these popu-lations are not required by LERO's procedures. The LERO Plan provides that during an emergency LERO will maintain ongoing contact with special f acilities and will coordi-nate the evacuation, individually, with each facility. See OPIP 3.6.5. Therefore, the abser.co of PARS for special facility populations poses no harm to their health and safe-l ty.
- 13. Contention 13: Medical Services (DO. 80-83)
In Contention 13, Intervenors allege that the two medicht services drills con-l ducted as a part of the exercise demonstrated LERCf3 inability to transport and treat contaminated injured members of the general public. Contentions at 80-81. Conton-tion 13 should be rejected because the matters identified in it, even if proven, do not rise to the level of a fundamental flaw. Without exception, Intervenors' bases for I
4}/ EBS No. 4 says that evacuees should go to reception centers "(t10 be certain that there is ll(tle or no hazard . . . . " EBS No. 4 at 2. This statement followed discus-sions about radiation being released to the air and about the need to shelter, all of whleh suggest the potential of contamination.
)
)
! Contention 13 Contention 13 are problems that FEMA identified but concluded did not jeopardize pub-l lic health and safety. Intervenors allege nothing that would rebut the presumed validity of FEMA's findings, t
Subparts A, B, C, and E of Contention 13 all recite problems that FEMA identi- ,
fled in the medical drill conducted at Mid-Island Hospital and Brunswick Hospital on Days 1 and 2, respectively, of the exercise.S See FEMA Report at 98-99. FEMA con-cluded, however, that none of these problems demonstrated a pervasive or fundamental l flaw in the LERO Plan. Indeed, despite monitoring and contamination control problems identified at Mid-Island Hospital, FEMA found that "(e]xcellent contamination control procedures were exhibited" and that patient exit processing at Brunswick Hospital was adequate. Id. at 99. The other problems identified by FEMA and parroted by Interve-nors - confusion concerning the proper entrance to Brunswick Hospital and an insufft-cient number of radiation safety officers involved in the drills - were also judged by FEMA to be a_d hoc, read 11y correctable problems. Thus, by simply reciting these prob-lems, Intervenors have failed to provide evidence of a fundamental flaw in the LERO Plan.
Additionally, Contention 13 should be rejected because intervenors have failed to give any basis for concluding that FEMA erred in finding that the problems identified in the medical drills did not pose a threat to public health and safety. Evaluation of an exercise necessarily involves subjective judgments about the overall effectiveness of a given activity. As noted above, FEMA's findings are entitled to deference. Carolina Power and Light Co,(Shearon Harris Nuclear Plant Units 1 and 2), LBP-85-49,22 NRC ,
f M/ Subpart D of Contention 13 is simply wrong, as the FEMA Report shows. Inter-venors allege that "no person was transported (by ambulance) during the LILCO medi-cal drills" and that FEMA therefore was unable to evaluate the performance of the am-bulance crew. Contentions at 82. In fact, a simulated patient was transported by ambulance from the EOC to Mid-!sland Hospital on Day 1 of the exercise, thus permit-ting FEMA to evaluate this aspect of the drill. See FEMA Report at 98.
4 L .-- _ - .
Contention 13 899, 910 (1985). Since Intervenors have failed to provide this Board with a reason not to defer to FEMA on its finding that the problems in the medical drills did not affect public health and safety, Contention 13 should be rejected.
Contention 14: Schools (pp. 83-87)
Contention 14 alleges that the LERO Plan is fundamentally flawed because the exercise showed that LERO cannot protect the health and safety of children in EPZ schools. However, Intervenors fall to allege a single valid basis for Contention 141 all of the asserted bases are either factually unfounded, entirely irrelevant to the premise of the Contention, or not significant enough to demonstrate a fundamental flaw in the LERO Plan. Absent a single valid basis, Contention 14 should be rejected.
- a. Inadeouate Factual Basis A number of subparts of Contention 14 should be rejected as inadequate bases.
For example, in subparts A and G Intervenors allege that when some school bus drivers reported to bus yards for the evacuation of Rocky Point schools, there were no assign-ment packets and/or no buses, forcing bus drivers to return to their respective staging areas. However, as Intervenors should be aware, the LERO Plan provides for the mobi-
) 11zation of 150 percent of the required bus drivers to ensure the evacuation of school children from the EPZ in "one wave." S_e_e, g, LBP-88-24, slip op. :1152, 61. As a re-sult, some extra bus drivers arrive at bus yards af ter all of the necessary packets and
) buses have been assigned. These surplus drivers are to report to the Patchogue Staging Area for possible assignment to other bus yards. See OPIP 3.6.5 Attachment 14. Thus, during the exercise a number of surplus bus drivers arrived at bus yards af ter all the necessary packets had been dispatched and, as the procedures require, then reported to the Patchogue Staging Area. It is simply not true, therefore, that the presence of sur-plus bus drivers at bus yards af ter all packets and buses have been assigned is evidence
) of a fundamental flaw in the LERO Plan.
)
O Contention 14 in subpart D Intervenor correctly claim that there were no protective actions O impi mented for Rocky Point students between 7:31 s m. and 10:39 a.m. on Day 1 of the ;
exercise. Contentions at 86. Intervenors fall to recognize that a controller message (LERO Mesage No. CC-11) provided that Rocky Point schools would not dismiss early but would hold their students until an evacuation was required.M/ Intervenors have had a copy of the exercise scenario, including Message No. CC-11, since at least July 13,1988, and should have been aware that the refusal of the Rocky Point School District to implement protective actions until 10:39 a.m. was an element of the scenar-lo and not a flaw in LERO's exercise performance.
Intervenors are again wrong when they allege in subpart D that LERO failed to ask the Rocky Point school superintendent if additional assistance was required for handicapped children. Contentions at 86. Based on FEMA control celllogs which have been available to Intervenors since October 14, 1988, Intervenors should have known that at 10:32 a.m. on Day 1 the Rocky Point school superintendent noted that LERO asked "if we need more buses / drivers or non-ambulatory services . . . told (him] no other assistance needed." Thus, intervanors' allegation is baseless,
- b. Irrelevant Bases O
Several of the asserted bases of Contention 14 should be rejected because they raise objections that are unrelated to exercise events, in subpart D,Intervenorf., allege that on Day 1 of the exercise the evacuation of Rocky Point students took "almost seven hours to complete." Contentions at 86. Intervenors complain that "this delay was excessive." Iq. This asserted basis should be rejected because it is not based on ex-ercise events. As Intervenors are aware, the field demonstration of the school reloca-O tion portion of the LERO Plan did not occur until Day 2 of the exercise. On Day 1, all M/ The scenario was so structured to trigger LERO's school evacuation plan.
O
O Contention 14 ,
"events" concerning the status of the evacuation of schools in the EPZ were dictated by O c ntroller messages. A scenario message (LERO Message No. A-5.5), for example, di-rected LERO personnel to assume that all evacuated school children would not be relocated to the Nassau County Coliseum until four hours af ter relocation center staff g were (assumed to be) dispatched from their headquarters at Garden City. Controller messages also dictated the time assumed to lapse during the routing of all 47 school buses to the Hicksville Reception Center and back to the Nassau County Coliseum.
O SiMe Intenenors' objections are not based upon LERO's pedormance on Day 1, they are irrelevant to the question whether LERO's actual performance revealed fundamen-tal flaws in the Plan.M O in subpart E, Intervenors allege that the LERO Plan is flawed because not all school buses available to LILCO for an evacuation have two-way or even AM/FM radios.
Contentions at 87. Intervenors reason that without radios, school bus drivers would not g be able hear about accidents or other traffic impediments that could delay the evacua-tion of school children. Ld. This basis should be rejected because it is a planning, rather than an exercise, issue. The LERO Plan does not require that every school bus have a O radi ; the Plan pr vides that school buses will follow the directions of traffic guides, who are connected by radios to the EOC, for the most expeditious route out of the EPZ.
lience Intervonors' complaint is with the Plan, not LERO's implementation of the Plan during the exerrise.
O O
M/ In complaining that the nearly seven-hour delay was excessive,Intervenors cite the alleged comment of "a FEMA controiler." Contentions at 86. Even if such a com-ment exists (LILCO cannot verify the comment because the assertion is made without accompanying reference or citation), it is irrelevant to the contention because LERO was not responsible for the time it took on Day 1 to simulate evacuation of Rocky Point O school children.
O
O -5 8 -
Contention 14 In subpart F,.Intervenors allege that the LERO Plan is fundamentally flawed be-O cause LILCO failed to demonstrate how school children would be supervised at reloca-tion centers. Contentions at 37. Like subparts D and E, subpart F is not grounded in exercise events. Indeed, subpart F is, at best, a challenge to the scope of the exer-g cise.EI In any event, subpart F does not provide a factual basis to show that exercise events revealed c fundamental flaw in the LERO Plan.EI
- c. No Fundamental Flaw 0 The remainder f Intervenors' asserted bases for Contention 14 should be re-jected because they allege minor, ad hoc problems which do not, felther separately or together, reveal a fundamental flaw in the LILCO Plan.
g In subpart B, Intervenors allege that the Plan is fundamentally flawed because LERO went beyond the provisions of the LERO Plan by arranging to transport to the Nassau County Coliseum those students who remained in schools outside the ~?Z af ter g the end of the school day. Id. at 85. Intervenors fail to plead how transporting students from safe locations outside the EPZ to another location even further outside the EPZ ~
and promptly notifying the public of those plans - affected the health and safety of the O students. Thus,Intervenors have failed to demonstrate a fundamental flaw in the Plan.
O -
M/ To comply with the requirement for a "full participation exercise," LILCO is ob-ligated only to exerc'se as much of the Plan as is "reasonably achievable without mandatory Dublic D8rticlDation." 10 CFR Part 50 App. E,1 IV.F.1 (1988) (emphasis added). Hence, school children were not required to be part of the exercise. In addi-O tion, officials of Nassau County refused to make the Nassau County Coliseum and the Nassau Community College available for the exercise. Thus, under 10 CFR Part 50, App. E,1 IV.F.6, LILCO was not required to test this aspect of the LERO Plan.
1Q/ Clearly, no such showing can be made: the children are sheltered well outside the EPZ, and LILCO d_id demonstrate its ability to segregate those students who may have been contaminated and direct them to a monitoring and decontamination center O before admitting them to the school relocation center.
O
O Contention 14 In subpart C,.Intervenors allege that a "significant number" of LERO school bus O drivers deviated from the routes indicated in their instruction packets. Ld. at 85-86.
The FEMA Report indicates that of the several bus drivers who deviated from their des-Ignated routes, some took d?ferent routes because they thought those routes would be '
g more efficient in evacuating the school children." See FEMA Report at 111. These deviations do not rise to the level of a fundamental flaw because they are few in num-ber and because they are easily corrected by reminding bus drivers to follow their in-O struction. Thus, subp et C tails to emonstrate a tundamental um in the Plan and should t,e rejected.
In subpart D, Intervenors allege that 50 minutes elapsed between the time Rocky
- g Point school children were available at the relocatien center to be picked up and the l time their parents were so notified. Id. at 86. Accepting the 50-minute interval as true, Intervenors fall to allege how this interval would have affected the health and i
- safety of children Who Were known to be uncontaminated and who were maintained at a relocation center well outside the EPZ.
Also in subpart D Intervenors allege a fundamental flaw in the Plan because bus driver dept yment was n t mpleted until 11:15 a.m. n ay 2. Contentions at 86-87.
iO The FEMA Report acknowledges that bus drivers were not fully deployed un'll 11:15 1 a.m. but attributes the delay to "an extensive safety inspection conducted by LERO
- g drivers prior to driving the assigned buses." FEMA Report at 106. FEMA did not find that the delay threatened the public health and s*(ety of the school children. The delay ,
is therefore the sort of ad (Log, correctable matter that would not adversely affect the t public health and safety. It does not reveal a "fundamental flaw."
{O l Finally, in subpart If, Intervenors allege that the Plan is fundamentally flawed '
because several bus driver maps inaccurately identified the exit off the Long Island Ex-
- O pressway to the school relocation centers. Contentions at 87
- see FEMA Report at 111.
,O '80' Contention 14 Again, Intervenors offer no reason to believe that these inaccuracles in any way affect-O- ed tne drivers' ability to ilnd the sch, ,
the relocation centers to which they were assigned. Thus, this basis for Contention 14 should be rejected because it does not re-
] veal a fundamental flaw in tha Plan.
O For the above reasons, the asserted bases of Contention 14 are invalid, and the Contentic.: should be rejected in its entirety.
- 15. Contention 15: Traffic Imoediments (oo. 88-89)
O Contention is is objectionable because it alleges problems that, even if accepted as true, are so inconsequential that they must be considered "minor or 3_d hoc problems occurring on the exercise day" that do not rise to the level of a fundamental flaw. Not O
only are the bases for this allegation 'vrong in some respects, but Intervenors have ig-noted the fact that LERO's overallimpediment response was, as FEMA recognized, out-standing.NI O
Intervenors offer three bases for their contention: the alleged untimely response of a LERO Road Crew to a simulated accident on Granny Road; an error by a Traffic Guide in directing rerouted traffic in response to a second impediment; and alleged un-0 timeliness in communleating the existence of certain impediments to the public. This last example is duplicative of an allegation in Contention 6 and is more appropriately addressed in LILCO's response to that contention.
O M/ FEMA called LERO's overall coordination of response to the three free play im-O pediment problems "very good." FEMA Report at 46. FEMA said that the EOC staff "demonstrated outstanding abtilty" in dealing with the impediments and that the Traffic Engineer's "expertise" was "well used." W. FEMA also noted that at the EOC, the im-pediment situations were "carefully analyzed, and information was continually passed laterally as well as vertically to ensure coordination." W. As for the field response.
FEMA noted that with respect to the Granny Road impediment, the Road Crews were O "knowledgeable about the capabilities of the required equipment and exercised appro-priate judgement." g. at 82.
O
O. -st-Contention 15 ns for the first example, Intervenors are wrong in their claim that LERO Road
(;, Crews "reported to the wrong intersection" and thus were delayed in responding to the ;
impediment (an overturned van that had struck a utility pole and was leaking diesel fuel). In h ct, as is noted in the FEMA Report at 82, upon reporting to Traffic Control O Point 68 (only a quarter-mile away from the impediment site) the Road Crews were in-st.ucted by the LERO EOC to stand by and assist Suffolk County and fire rescue persan-nel. Only af ter the fire hazard had been eliminated were the Road Crows ordered by d
- O the EOC to proceed to the accident scene. In short, there is no basis for the cla!"1 of delay.
More importantly, even if Intervenors' claim of delay were true, it would still not ,
- O show a fundamental flaw in the LERO Plan. Intervenors do not a!!ege that LERO Road Crews responded in an untimely manner to the two other impediments that were intro-duced into the exercise scenario. It necessarily follows that, with respect to removing lO r ad impediments, the LERO Plan can be implemented in a reliable and prompt manner that will protect public health and safety. An isolated occurrence of delay in one re-sponse (assuming arguendo that there was, in fact, any delay) does not demonstrate a
,O fundamental flaw _See Shearon HarrQ,22 NRC at 913 (Board notes that during exer-cises "isolated instanced of delay . . are io be expected."), i For the same reason, the fact that a single Traffic Guide may have mistakenly jg indicated to a FEMA observer how he would have directed rerouted traffic in response '
to a second impediment is hardly evidence of a fundamental flaw in the LERO Plan.EI l
Again, Intervenors do not allege that Traffic Guide performance in directing rerouted
(
jO :
M/ Intervenors suggest that the Licensing Board previously found, follouing the '
1986 exercise, that LERO "cannot effectively reroute traffic away from an impedi- 7 unt,"
& ' Suffolk's citing (to LBP-8-2, rerouting) solutions 27 NRC are116-18. In fand workable" act,that the "(n]oBoard found that flaw fundamental "both LERO's was O *a nstrated n this regard." Ld. at 118. ;
- O y -.., , _ _-._ ,-, ..,. __ _.~. __., _. .- . . _ _ _ , . . . _ . . _ - - _ , _ _ - . - - _ . - _ . _ - - -,
O Contention 15 traffic in response to the other impediments introduced during the exercise was in any O way incorrect. Intervenors thus implicitly concede that the LERO Plan was otherwise properly implemented and that the problem observed with one Traffic Guide was simply a "minor, ad hoc" problem on the day of the exercise.
O in sum, Intervenors' inability to come up with any bases for this contention apart from a few minor, unrelated (and, in one case, manufactured) problems is by itself a testament to the LERO's exceptional performance during the exercise in responding to O the three traffic impediments. The minor errors alleged by Intervenors do not suggest a fundamental flaw and thus are not appropriate matters for litigation.
- 16. Contentiog8it Acces Control (pp. 89-90)
In Contention 16, the Intervenors allege that the LERO Plan is fundamentally flawed because the exercise showed that LERO could not provide adequate guidance for controlling acces" to contaminated areas of the EPZ. Contention 16 should be rejected O
because it does not plead a fundamental flaw in the Plan - that is, it does not identify problems that, if true, would be of any significance for the public health and safety.
Intervenors allege that it took LERO "many hours" to "prepare and approve" an O
access control plan. Contentions at 89-90. They do not allege, however, that access control plans were not in place before protective action recommendations were changed. As a factual matter, the length of time it took to prepare and implement an O
access control plan, by itself, is irrelevant. The essential consideration is whether that access control plan is in place before protective actions are revised or rescinded. Dur-ing the exercise, access control plans were in place before protective action recom-O mendations were changed. See FEMA Report at 47. By falling to allege that LERO's access control plans were not in place before protective actions were changed, the In-tervenors have f ailed to satisfy the "fundamental flaw" test.
O O
i O Contention 16 Intervenors also complain that the atsence of pre-designated access control points created confusion about decisions to change protective action recommendations and that some field workers were confused about the access controlinstructions. Con-tentions at 90. However, this confusion would not have substantially affected public O health and safety, and Intervenors make no showing to the contrary. Contentions at 90.
Intervenors therefore fail to establish a sufficient basis for Contention 16.
- 17. Contantion 17: Monitoring and Decontamination O
' """*l' ""' ' "*" # * '"* " ( ' '" }
Contention 17 alleges that the exercise revealed a fundamental flaw in LERO's s
monitoring and & contamination of public and emergency workers. The contention '
claims that LERO was untimely in recommending that members of the public report to reception centers and that it employed improper monitoring and decontamination pro-ce&res. Contention at 91-93. Contention 17 should be dismissed for the following rea-O
- a. Contention 17.A Basis A for Contention 17 says that LERO failed to inform the evacuating public why they should report to reception centers until some seven and a half hours af ter first being instructed to evacuate. This is redundant of Basis B.2 for Contention 6 (which addresses the EBS) and should be rejected for the same reasons. Furthermore, Intervenors' allegation regarding the possible effects of this alleged delay "(iln an ac-O tual Shoreham emergency" is nothing more than speculation and should be rejected as sveh.
- b. Contentton 17.8 l jO Basis B for Contention 17 says that LERO personnel failed to follow the P)an, employed incorrect monitoring and decontamination procedures Cd were inconsistent in their use of contamination control procedures at all LILCO facilities fylgnated for
- O
_ ~ , ,
Contention 17 monitoring and decontamination. Contention 17.B should be rejected because it alleges problems that, even if true, are "minor and ad hoc problems occurring on the exercise day" and not a "fundamental flaw."
Once again, Intervenors have linked together a number of isolated and essential-
, ly independent incidents in an attempt to crea;o a "pattern of conduct" that somehow aggregates into a fundamental flaw. But they have f ailed to find any problems that are pervasive rather than minor or ad hoc. The performance of a certain function must te evaluated in its entirety, and a contention is not admissible merely because it lists a number of allegedly similar problems. _See_ Shearon Harri.5. 22 NRC at 909-10.
Moreover, the deference owed FEMA's findinga argues against admitting Conten-tion 17. Intervenors cite as examples merely the same incidents listed in the FEMA Re-port, where FEMA concluded that "[olverall, the Idecontamination) teams performed satJsfactorily in the areas of evacuee monitoring, contamination control procedures,
problems are readily correctable and recommended that "(w)orkers should receive ongoing training in contamination control procedures prior to the next exere!.se." M. at 97.
Intervenors' mere recital of constituent items noted and accounted for by FEMA in its evaluation, without providing any logical basis for rejecting FEMA's overall con-
)
clusion on them, simply does not provide any basis for requiring this Board and the par-ties to spend time and effort litigating them. The Contention should be rejected.
Contention 18: Equipment and Reception Failures (pp. 94-96)
)
Contention 18 alleges that the exercise revealed a "pattern of communications breakdowns constitut(ing) a fundamental flaw." Contentions at 94. However,Interve-nors not only fail to estab!1sh a "pattern" of equipment failures, they fall to show how their list of unrelated, miscellaneous "equipment and reception failures" reveals a
- fundamental flaw in the LERO Plan. For this reason, Contention 18 should be rejected.
) Contention is In support of Contention 18, Intervenors cite virtually every communications
) problem noted by FEMA, but f all to note FEMA's conclusions that these problems were not pervasive or fundamental. In subpart A, for example, Intervenors complain that "some radios" dispatched out of the Riverhead and Patchogue Staging Areas failed to
) operate and required the delivery of replacements. Contentions at 95. In fact. FEMA concluded that communications equipment dispatched from all three staging areas worked well. At the Riverhead Staging Area, FEMA found that replacement of the two
) failed radios was "prompt" and "timely" and that all of the radios "generally functioned well." FEMA Report at 88. At Patchogue, FEMA found that "[c]ommunications be-tween emergency workers in the field and the LERO EOC was reliable." Id. at 82. And
) at Port Jefferson, according to FEMA, "(clommunications with personnel in the field were effectively demonstrated by the equipment provided and its operation" and "the equipment operated without f ailure." Id. at 75. It is clear from FEMA's conclusions that the radio failures occurring during the exercise were minor, easily correctable l problems which would not have affected the public health and safety.
In subparts C and D of Contention 18 Intervenors allege that in two instances communicatioris were impairr by inadequate coverage of the radio signal. Contentions at 95. Intervenors fall to at xnowledge that in both cases the problem was easily cor-rected when emergency workers moved to slightly different locations. See FEMA Re-y port at 70, 89. These were minor problems which in neither instance affected emer-l gency response.
In several other subparts, Intervenors ignore LERO's corrective and compensat-
) ing actions that prevented communications problems from affecting public health and safety. In subpart B they allege that for twenty minutes on Day 1 of the exercise LERO lost radio contact with field workers in the vicinity of Port Jefferson. Contentions at
- 95. FEMA observed, however, that when the problem was discovered, emergency l
)
$ I O ~68-Contention 18 workers began to implement a backup system of dedicated telephones and radios, thus O ffsetting the problem. FEMA Report at 42. Intervenors also assert that radio traffic on the evacuation support communications system was so heavy that no further mes-sage traffic could have been handled. FEMA noted the heavy volume of message traffic but bsened that "(t]he isolved staH responded appropriately" by giving prhrity to O
messages concerning impediments. Id.
Finally, in subpart G Intervenors assert that "LILCO documents" indicate that O 'h* ' ' ' ' " " "" d " ' '" * " " 9'*P'Y '" ** * * '"* * **'" ' " ' ' " " * " ' ' ' * * ' '"
f act. LILCO documents in the possession of Intervenors show that when the bell on the RECS telephone failed to operate on the second day of the exercise, workers at the O EOC and the EOF improvised to ensure that the RECS would continue to function.
Thus, there is no indication in Intervenors' Contentions or in the FEMA Report that the RECS line was inoperable or that LERO was forced to rely on a backup communications g system. As a result of LERO's corrective or compensating actions, none of the prob-lems listed above had any effect on the public health and safety.
Thus, when considered in the context of LERO's entire exercise performance, in-g tervenors' examples of communications problems do not demonstrate a "pattern of communications breakdowns" but rather, at worst, a handful of minor incidents which do not, either separately or together, amount to a fundamental flaw in the Plan.EI Again, mere recital of exercise events noted and accounted for by FEMA in its analysis, without any explanation of why the presumption due FEMA's conclusions has been over-come, falls to establish any basis to consume this Board's and the parties' time and
- o ene,Ey in ungauon.
9/ Subpart F of Contention 18 alleges that not all of LERO's school buses have ra-
- dios. Subpart F should be rejected for three reasons
- first, it does not allege an equip-
- O ment or reception failure and thus is irrelevant to Contention 13; second, it is redun-dant of an allegation made in Contention 14
- and third, it is a planning issue, not arising from performance during the exercise. See Contentions at 87.
- O
O Contention 19
- 19. Contention 19: Failure to Communicate Information (DD. 96-99)
O Ace rding to Contention 19. the LERO Plan is fundamentally flawed because the exercise revealed "repeated failures of LERO personnel in communicating emergency information and data." Contentions at 96. As a threshold matter, many of the asserted O bases f Contention 19 are redundant and should be rejected.EI in the few instances of new material, Intervenors fail to allege any matters which. If demonstrated, would con-stitute a fundamental flaw in the LERO Plan. Therefore, Contention 19 lacks sufficient O **'d****'d**)**'*d' Subparts C and D of Contention 19 pose issues which are already raised in other contentions. Subpart C alleges that EOC personnel did r,ot communicate "timely, O a curate, e nsistent and concise information to the public." Contentions at 98. This repeats Contention 5, in which Intervenors allege that "(t]he Exercise revealed that LILCO is incapable of implementing prompt not!!! cation to the public." M. at 27. Like-g wise, in Contention 6. Intervenors allege that EBS messages formulated and issued by the EOC were "inaccurate, inconsistent, [and) untimely." M. at 31. Subpart C of Con- '
tention 19 is clearly redundant of several preceding contentions and should be rejected. ,
g Contention 19.D alleges that EOC personnel were unable to "communicate effec-I-
tively" with simulated gove.nment officials. M. at 98. In Contention 4, Intervenors al-lege that the LERO Plan is fundamentally flawed because "LERO personnel . . . were .
O untimely in their contacts with the simulated governmental ' officials.'" M. at 19-20. :
Thus, subpart D is redundant of Contention 4 and should be rejected. '
O M/ This Board has recognized that there is "no place for duplicative contentions" in the litigation of exercise results. Prehearing Conference Order (Ruling on Contentions and Establishing Discovery Schedule) at 9 (October 3.1986). While a single fact may O support more than one contention, a single issue may not be litigated more than once.
g.
O
- O -es-Contention 19 Subpart B of Contention 19 should be rejected for lack of any factual basis. It al-
.O leges that EOC personnel had difficulty communicating with other facilities, especially the ENC. Contentions at 97. In support of subpart B. Intervenors cite Contentions 5-9.
However, none of these contentions directly raises the issue of communications be-O tween the EOC and the ENC or between the EOC and any other emergency facility.
Contention 5 addresses noti!! cation of the public through strens or route alert drivers:
l Contention 6 concerns notification of the public through EBS messages: Contention 7 lQ concerns the ENC's alleged inability to communicate adequate information to the news media; Contentie 8 concerns LILCO's ability to respond to rumors; and Contention 9 alleges that the public would reject LERO's EBS messages as a primary source of infor-i
.O mation. Since none of these contentions addresses the alleged diffleulty in communica-tions between the EOC and ENC or other emergency facilities, Subpart B should be re-jected for lack of basis.U/ ;
O Subparts A and E of Contention 19 allege information which is neither suffi-ciently specific nor serious enough to demonstrate, if proven, a fundamental flaw in the ,
LERO Plan. In subpart A, Intervenors assert that staging area briefings and other com-lO municat ns within the staging areas were inadequate. Contentions at 97. However, -
Intervenors fall to show how these problems, even if accepted as true, affect public health and safety.UI Furthermore, Intervenors fall to note that FEMA found that each O i U/ Intervenors may argue that Contentions 5-9 pose indirect!v the issue of commu-i nications between the EOC and other emergency facilities. In Contention 6, Interve- ;
nors allege "LERO's . . . failure to assimilate information from diverse sources within .
LERO." Contentions at 34. And in Contention 7. Interven7rs cite OPIP 3.6.1, which 1 O Provides that public information officials at the EOC and ENC should confer regularly !
to assure consistent information. Ld. at 51-52. To the extent chase references can col- i orably be claimed to raise the issue of communications betwt.tn the EOC and other '
emergency facilities, especially the EOF, subpart B of Centention 19 is redundant and should be rejected.
g U/ Indeed, unlike the 1986 exercise, Intervenors have not proposed a contention al-l leging that the mobilization of aE field worker was untimely. Thus it is apparent that l Intervenors cannot establish this nexus to public health and safety. ,
i O [
l
O :
Contention 19 ,
of the three staging areas was managed effectively. See FEMA Report at 72, 79. 85.
g Viewed in the appropriato context, it is clear that the problems noted by Intervenors were minor ones which do not demonstrate a fundamental flaw in the Plan.
In subpart E Intervenors allege that "inadequate communications" during the ex-O ere se revealed that EOC personnel failed to provide emergency field workers with "ad-1 equate guidance." As the so!e example, Intervenors cite the alleged issuance of "inac-curate maps" to several kinds of emergency workers. SM Contentions at 98-99. Here iO again, Interven rs fall t link h w these problems, even if true, negatively affected public health and safety. Moreover, inaccurate maps are the type of minor, easily cor- t rectable problems that cannot be a "fundamental flaw." Thus, subparts A and E of Con-1 0 tenti n 19 sh uld be rejected as failing to allege sufficient bases for establishing a fun-damental flaw.
, 20. Contention 20: Trainirr (pp.99-104) iO Contention 20 chrillenges the LERO training program. The contention should be :
l rejected because it fa'Is to plead facts which, if true, would constitute a fundamental flaw.
O In 1986 the Board admitted a similar training contention, Contention EX 50. S_ee_ i Prehearing Conference Order (October 3,1986)(the "October 3 Order") at 29-30. How-I l ever, the same reasons that led the Board to admit Intervenors'similar training conten-j
!O tion then, now dictate that Contention 20 be rejected. In its October 3,1986 Order the '
Board recognized that the bases of Contention EX 50 were "redundant to many other contentions." October 3 Order at 29. The Board nonetheless admitted Intervenors' t 0 training contention, noting that the i
initial decision on emergency planning acknowledged that the {
f exercise was to be the vehicle that would confirm the ade- j quacy of LILCO's training program. Indeed, we were repeat-
,O edly told by FEMA witnesses during the planning hearing that "
FEMA followed a two-stage review process in which the ade-quacy of the written plan was first reviewed and that O
l
Contention 20 adequacy of training would be reviewed later as revealed by personnel performance in an exer.'cse.
)
(d. at 29-30.E the Board went on to state that it was now at that second stage where adequacy of training as re-vealed by the exercise is ripe for litigation. There can be lit-tie question that the plan would be fundamentally flawed if it were proven that a large training program having ample op-
) portunity to train has failed in its mMon.
Id. at 30. In LBP-88-2 the Board reiterated this reason for allowing the LERO training program to be litigated again, saying that "tt e issue of the adr,<;uacy of LILCO's training
) program was lett open and subject to test in the Exercise" and pointing out that "FEMA identified a significant number of training p'oblems and inadequacies in its Report on the Exercise, and . . . it did not make a finding that the Plan can be satisfactorily implemented with the training program in use at the time of the Exercise." 27 NRC at f
174 (emphasis added).
Now the exact opposite is true. LERO's deficiency-free performance demon-strates that LERO did not "fail in its mission" in the 1988 exercise. No offsite emer-gency response organization whose personnel have learned their jobs in a "fundamen-tally flawed" training program r ould be able to demonstrate that there is "reasonable
) assurance" that the public health and safety will be protected. Yet FEMA has made precisely that finding, in short, FEMA has now confirmed (as the Board in LBP-85-12 had said would be necessary) that the LERO Plan can and will be "satisf actorily imple-
) mented."
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53/ Specifically, in LEP-85-12, 21 NRC 644 (1985) the Board had stated that its con-clusion that the LERO training program met the regulatory standards was being made "subject to confirmation by a finding, to be made by FEM A af ter a traded exercise, that the Plan can be satisf actorily implemented with the training program submitted. . . ."
) 21 NRC at 756 (emphasis added).
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Contention 20 Moreover, LERO made this showing in an exercise that exceeded in size, length.
3 complexity, and level of FEMA observation, every other exercise previously conducted in FEMA Region II, including the then-unprecedented (in terms of size) Shoreham exer-cise in 1986. For instance, FEMA observed and evaluated 36 general population evacua-
) tion bus routes in 1988,28 more than the eight it had observed in 1986. In 1988 forty evacuation school buses (as compared to two in 1986) were observed and evaluated. For rumor control LILCO personnel fielded 911 phone calls during the 1988 exercise, com-3 pared with 35 calls in 1986. Despite such intensive scrutiny, FEMA found no deficiencies in LERO's performance and only 19 ARCAs; by comparison, af ter the one-l day 1986 Shoreham exercise FEMA assigned four deficiencies and 38 ARCAs. It was 1
( precisely these FEMA-identified deficiencies in LERO's performance that led the Board in iBP-88-2 to find that the LERO training program was itself fundamentally flawed:
Deficiencies . . . which are signficant to the ability of LERO to impleraent the LILCO Plan, were found during the Exercise
) and were not demonstrated to have been compensated for or l corrected . . . .
1 27 NRC at 212. The Board then concluded that a l
finding of reasonable assurance must await further demon-I stration in a FEMA graded exercise of those portions of the Plan where deficiencies were found that corrective measures have been adequate.
Ld. Given FEM A's deficiency-free report and finding of "reasonable assurance" follow-1 ing the 1988 exercise, the "further demonstration" that the Board called for has now been made. In light v the fact that this demonstration was made during an exercise of unprecedented size and cemplexity (and one observed by FEM A with a heightened IcVel
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of scrutiny), the degree of confidence that the Board can place in FEMA's overall find-ing of reasonable assurance is laarguably high.
g Contention 20 As a consequence, the vague f actual references that Intervenors make in their O ther contentions cannot be considered sufficient, as a threshold pleading matter, to constitute adequate basis for their training contention. Even if all those "facts" were accepted as true, Intervenors still would have f ailed to demonstrate a fundamental flaw O in tr ining. Indeed, the f acts that Intervenors cite throughout their contentions come, by and large, directly from the FEMA Report.5J FEMA has already taken into account the minor problems that Intervenors cite, and has found reasonable assurance notwith-standing them.
O Thus it *tas incumbent on Intervenors this time to do more than just assert that the minor, jLd hoc problems during the 1988 exercise demonstrate a fundamental flaw in O training. Instead, Intemnors were obligated to allege why, notwithstanding FEMA's finding of_ reasonable assurance and determination of no deficiencies, those few scat-tered protilems reveal a fundamental flaw. Intervenors' failure to do so requires that Contention 20 be rejected.
O C. Conclusion None of the Intervenors' 20 exercise contentions should be admitted.
O Respectfully submitted, O _
_A g&
nald P. Irwin f James N. Christrian Counsel for LongYland 1.lghting Company Hunton & Williams ;
707 East Main Street O p,o, aox t333 Richmond, Virginia 23212 DATED: November 3,1988 i O SU As noted in the "Introduction" section above, most of the citations and the facts recited in the Contentions rely on the FEMA Report.
O
LILCO, November 3,1988 CERTIFICATE OF SERVICE bhF in the Matter of '88 tg -7 A10:22 LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station Unit 1) ,,,.
Oocket No 50-322-OL-5R h.j n , ,, ;..d e:n I hereby certify that copies of LILCO'S RESPONSE TO 1988 EXERCISE CONTEN-TIONS were served this date upon the following by hand as indicated by an asterisk, by Federal Express as indicated by two asterisks, by telecopy (less attachments) as indi-cated by three asterisks, or by first-class mail, postage prepaid.
John H. Frye, III. Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers, l'ourth Floor Washington, DC 20555 4350 East-West Hwy.
Bethesda, MD 20814 Adjudicatory File Atomic Safety and Licensing Dr. Oscar H. Paris
- Board Panel Docket Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 East-West Towers, Fourth Floor 4350 East-West Hwy. Edwin J. Reis. Esq. *
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Bethesda, MD 20814 U.S. Nuclear Regulatory Commission One White Flint North Mr. Frederick J. Shon
- 11555 Rockville Pike Atomic Safety and Licensing Board Rockville, MD 20852 U.S. NucJr,ar Regulatory Commission East-West Towers, Fourth Floor Lawrence Coe Lanpher Esq. *
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4350 East-West Hwy. Karla J. Letsche, Esq.
Bethesda, MD 20814 Kirkpatrick & Lockhart South Lobby - 9th Floor James P. Gleason, Chairman H 1800 M Street, N.W.
Atoetle Safety and Licensing Board Washington, DC 20036-5891 U.S. Nuclear Regulatory Commission 3 513 Gilmours Drive Fabian G. Palomino, Esq. ",***
r Silver Spring, MD 20901 Richard J. Zahnleuter, Esq.
Specla! Counsel to the Governor Dr. Jerry R. Kh ** Executive Chamber, Room 229 Atonic Safety and Licensing Board State Capitol U.S. Nuclear Regulatory Commission Albany, NY 12224
) East-West Towers. Fourth Floor 4350 East-West Hwy. Alf red L. Nardelli, Esq.
Bethesda, MD 20814 Assistant Attorney General 120 Broadway Secretary of the Commission Room 3-118 Attention Docketing and Service New York, NY 10271 Section U.S. Nuclear Regulatory Commission Washington, DC 20555 l
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George W. Watson, Esq.
- Ms. Nora Bredes
) William R. Cumming, Esq. Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, NY 11787 Washington, DC 20472 Evan A. Davis, Esq.
) Mr. Philip McIntire Counsel to the Governor Federal Emergency Management Executive Chamber Agency State Capitol 26 Federal Plaza Albany, NY 12224 New York, NY 10278 E. Thomas Boyle, Esq.
Mr. Jay Dunkleberger Suffolk County Attorney
) New York State Energy Office Building 158 North Courty Complex Agency Building 2 Veterans Memorial Highway Empire State Plaza Hauppauge, NY 11788 Albany, NY 12223 Dr. Monroe Schneider
) Stephen B. Latham, Esq. ** North Shore Committee -
Twomey, Latham & Shea P.O. Box 231 33 West Second Street Wading River, NY 11792 P.O. Box 298 Riverhead, NY 11901
) Jonathan D. Feinberg. Esq.
New York State Department of Public Service, Staff Counsel Three Rockefeller Plsza l Albany, NY 12223 James N. Chrt itman Hunton & Williams .
707 East Main Street P.O. Box 1535 j Richmond, Virginia 23212 DATED: November 3,1988 1
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