ML20206N011
| ML20206N011 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/29/1988 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#488-7579 ALAB-905, LBP-88-13, OL-3, NUDOCS 8812020134 | |
| Download: ML20206N011 (42) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: l',,,',j'yj[
._.: x Thomas S. Moore, Chairman November 29, 1988 i Alan S. Rosenthal (ALAB-905) -
3 Howard A. Wilber
)
3E'RVED NOV 2 91988
) ,
, In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shorehr.m Naclear Power Station, ) i Unit 1) ) ;
)
David T. Case, !!ashington, D.C. (with whom Christopher M. McMurrrJ. and Ronald R. Ross, Washington, D.C.,
, E. Thomas Boyle, Hauppauge, New York, rabian G.
Palomino and Richard J. Zahnleuter, Albany, New York, and Stephen B. Latham, Riverhead,~New York, were on ;
the brief) , for intervenors Suffolk County, the State of New York and the Town of Southampton.
.l James N. Christman, Richmond, Virginia (with whom
- l i Mary Jo Leugers and David S. Harlow, Richmond,
' l Virginia, wer4~on the brief) , for applicant Long !
j Island Lighting Company. '
1 ,
, Richard G. Bachmann for the Nuclear Regulatory Commission staff 7 !
DECISION The Commission's regulations provide that no operating '
license for a nuclea: power reactor can be issued unless J
there is reasonable assurance that adequate prctective !
l measures can and will be taken in the event of a ,
l radiological emergency. Among other things, the l
l I 10 C.F.R. S 50. 47 (a) (1) .
8812O20134 881129 1 PDR ADOCK 05000322
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) poV ]
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2 regulations require that emergency response plans allow for
"(a) range of protective actions . . . for the plume exposure pathway EPZ (Emergency Planning Zone) for emergency workers and the public."2 On May 9, 1988, the Licensing Board issued a partial initial decision setting forth its findings on various issues concerning the three reception centers proposed by the Long Island Lighting Company (LILCO) for use in monitoring, decontaminating, and sheltering evacuees from the EPZ in the event of an offsite radiological emergency at the Shoreham Nuclear Power Station. For such an occurrence, LILCo's emergency plan i calls for employing i*.s own Bellmore, Hichavil14, erd Roslyn service facilities located in Nassau County some forty miles west of the Shoreham pl.nt in the towns of Hempstead, Oyster Bay and North Hempstead, respectively. The Licensing Board .
found for LILCO on all nine of the reception center issues, concluding that "the Applicant's planning basis, traffic
- plan, reception center locations, .aonitoring, registration, I
and decontamination procedures, staffing plans, and i
provisions for handling evacuees are adequate and satisfy "4
the NRC's regulatory standards . . . . (
(
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r 10 C.F.R. S 50.47 (b) (10) . (
t 3 See LBP-38-13, 27 NRC 509 (1988).
Id. at 567.
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3 The inter'enors, Suffolk County, the' State of New York t j
and the Town of Southampton, have appealed, claiming that (
the Licensing Board committed four fundamental errors. They i i
argue that the Board erred in accepting LILCo's planning i basis for monitoring evacuees and in making its various findings concerning the utility's reception centers without first obtaining findings on the adequacy of the centers from the Federal Emergency Management Agency (FEMA) . Next, the intervenors assert that the Board erred in rejecting their position regarding the possibility of substantial additional "shadow evacuation" in an emergency by people living around LILCO's reception centers. Finally, they argue that the Board erred in striking their testimony addressed to LILCO's evacuee registracion procedures.
After the parties' briefs addressing these issues were filed, the Supreme Court for the State of New York, Nassau County, handed down a decision granting summary judgment for the plaintiff in the zoning case of Town of_ Hempstead v.
Long Island Lighting Co.5 In that case, the Town of itempstead sought to restrain LILCO from using its Bellmore facility as a radiological emergency reception center, claiming that such use violated the special exception permit under which the building was constructed. Subsequently, on Index 23779/87 (N.Y. Sup. Ct., Aug. 22, 1988).
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September 20, 1988, the court entered judgment in the case ;
permanently cricining LILCO, without prior approval of the Town of Hempcw ul, from using, or representing that it will l use, the Bell" ee -
n) ac a reception center, and from [
placing any tra! n' a,A utti 2y connections on the site. In f
addition, the er s .
Sido**d the immediate rernoval of any f
, facilities or eg,' ' <n n u,.. t . Jy installed at the Bellmore f center for use in s a e/er' of a radiological emergency. !
As explained below, we remand the case to the Licersing Board for conqideration of the ef fects on its findings and conclusions of the state court's injunction against using the Bellmore facility as a reception conter. At the same time, and as we also explain below, the Board should consider anew the monitoring planning basis and, in selecting such basis, it should fully articulate its reasoning. With respect to the remaining issues raised by the intervenors un appeal, either that portion of the intervenors' appeal is denied or the Licensing Board's findings are affirmed.
I.
The Licensing Board's decision recites the long history of the reception center issue in this operating license proceeding and we need not rehearse it here.6 Suffice it to See LBP-88-13, 27 NRC at 511.
5 note that, after the Veterans Memorjal Coliseum in Nassau County, New York, could no longer be used by LILCO as a reception center, LILCO once again amended its emergency plan and moved to reopen the record to substitute its own Bellmore, Hicksville, and Roslyn facilities for the Coliseum. The Licensing Board granted LILCO's motion and L
the proceeding continued focused on nine specific issues, i
all talating to the appropriateness of these three facilities as reception centers. After eleven days of hearings, the Board issued its findings on the contested issues concerning such matters as the planning basis for monitoring evacuees, traffic plans, reception center locations, staffing plans, and monitoring and decontamination plans. At the time the Board handed down its decision, the zoning case pitting the Town of Hempstead against LILCO was still pending and the Board quito properly refused to speculate on the outcome of the zoning dispute involving LILCO's Bellmore center. It nevertheless recognized that a state court ruling adverse to LILCO held 1
! the potential for undermining the findings and it therefore suggested that the appropriate course was for the parties to bring such a ruling to its attention.7 i
i While the intervenors' appeal on the reception center ,
issues was pending, the Supreme Court for the State of New Id. at 567.
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York, Nassau County, entered its judgment enjois.ing LILCO from using, or representing that it will use, its Bellmore facility as a reception center in the evtsnt of a radiological emergency and directing that LILCO remove from the site any auxiliary facilities or equipment already installed for that purpose. That judgment seemingly e
undercuts tne very foundation of the Licensing Board's findings. As the Board stated at the beginning of its opinion, its "Decision addresses the adequacy of three reception centers proposed by LILCO for public use in the event of a radiolonical emergency at Shoreham."8 Yet the state court injunction effectively removes one of LILCO's reception centers, Bellmore, from its emergency plan thereby
- leaving only two such centers. The emergency plan challenged by the intervenors called for three reception centere (Bellmore, Hicksville, and Roslyn), and it was in 1
that factual setting that the specific issues were litigated by the pa~ ties and then decided by the Board below. Indeed, l f
of the nine contested issues, those concerning traffic i l l plans, evacuation routes, reception conter locations, l staffing plans and monitoring and decontamination plans appear to be impacted directly by the removal of the Bellmore facility as a reception center. In the !
Id. at 510 (emphasis supplied) ,
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circumstances, a remand to the Licensing Board for it to
] consider the effects of the state court's judgment upon its 1
l findings is the most appropriate course, j The evidentiary record on the reception center issues !
I j is substantial and our perusal of it convinces us that the I i Licensing Board should make the initial assessment of the I i l t
impact of the state court's ruling on the Board's findings. i:
I q The trial Board heard the witnesses, examined the exhibits, and issued extensive findings. Obviously, it is most j familiar with the record and in the best position to i ;
j evaluate the effects of the state court's injunction on the !
l contir ning ef ficacy of LILCO's emergancy plan and to deal [
l with all of the evidentiary conflicts in the record arising ,
j from the loss of the Bellmore facility.9 Moreover, this l
course of action is also necessary in light of our remand to
! the Licensing Board of the planning basis issue.10 The l j Board's resolution of that issue may well affect many of its 1 i
! (
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j ' For example, the court enjoined LILCO from f representing that it will use its Bellmore facility as a i I( reception center. Hence, the Licensing Board will need to (
l considor, inter alia, the question of whether any existing r j public information material referring to Bellmore is still :
4 appropriate. See Tr. 18,296-97. Similarly, the Board may l l need to evaluate the adequacy of any modifications to the ,
j public information material and steps to make the public l aware of such modifications, i
. 10 See infra p. 41.
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2 findings regarding the sufficiency of LILCO's remaining reception conters.
?
In supplemental papers filed after the state court !
I entered its judgment in Town of Hempstead, LILCO argues that the injunction restraining it from using the Bellmore ;
facility as a reception center is "immaterial" to the i
) licensing proceeding because the realism principle of 10 !
- C.F.R. $ 30.47 (c) (1) dictates that, in a real emergency, the i l facility nevertheless would be available. In sur
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situation, LILCO claims that it would ask the local !
i
- j government authorities to suspend the zoning ordinances l pursuant to the New York State Executive Law and that, under f i
l the realism rule, it is indisputable that local authorities (
l would use their best efforts to respond to the emergency. f According to LILCO, such efforts nt.cessarily would include [
! providing the requisite prior approval or invoking existing ,
l statutory authority to suspend local zoning laws that prevent evacuees from being helped. In a similar vein, I 4
j LILCO argues that even though the injunction has required it l
)
to remove its decontamination trailer and related equipment j
] from the Bellmore site, it nevertheless will provide l l
6 decontamination showers at that facility in an emergency by {
s i J either employing mobile equipment, expanding existing restrooms or seeking an amendment to its special use permit !
j from the Town of Hempstead. Thus, LILCO claims the state i
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9 court injunction is immaterial and has no impact on the availability of the Bellmore facility.
LILCO's argument is seriously deficient in a number of respects. Even putting to one side the substantial factual ano legal questions concerning the interpretation and applicability of the New York State Executive Law as it relates to the officials of the Town of Hempstead in the event of an accident at Shoreham, the realism principle of 10 C.F.R. S 50.47 (c) (1) is not the panacea LILCO apparently as 2mes. Rather, the invocation of that regulation raises a host of factual questions that have not yet been subject to scrutiny by the other parties or decided by the Licensing Board but which must be resolved before the realism principle comes into play.
By its own terms, 10 C.F.R. S 50.47 (c) (1) is applicable only if LILCO can first demonstrate that (1) its inability to use the Bellmore facility "is wholly or substantially the result of the non-participation" of the Town of Hempstead in LILCO's emergency plars; and (2) it "has made a sustained, good faith effort to secure and retain the participation" of the Town of Hempstead.
I To date, LILCO has not made this factual showing with respect to the Town of Hempstead and, in the circumstances presented, may not be able to make such II 10 C.F.R. SS 50. 47 (c) (1) (i) , (ii).
10 l a demonstration. For exsmple, the circumstances leading to the Town of Hempstead decision, as revealed by the supplemental appellate papers, do not appear to involve a question of "non-participation" at all. Moreover, the intervenors assert that LILCo has never even asked the Town to participate 17. emergency planning for Shoreham and that the local zoning laws long predate LILCO's designat'.on of the Bellmore property as a reception center. In any event, this requisite factual showing is a condition precedent to LILCO's successful reliance on the presumptions of the i realism rule und such facts must be proved before the 1
Licensing Board. Similarly, LILCO's various proposed soletions to compensate for the loss of its decontamination l trailer and associated equipment at the Bellmore site also raise a series of factual issues regarding the feasibility and adequacy of those solutions. Therefore, at best, i LII40's argument lacks the necessary factual predicates for !
employing the realism principle of the Commission's i regulations.12 .
I 12 LILCO also suggests that we should ignore the state court's injunction because it has filed a notice of appeal as well as a motion with the trial court seeking reargument ;
and an amendment of the judgment. Thus, according to LILCO, "the precise language of the final judgment is . . . still ,
J an open issue." LILCO's Report to the Appeal Board !
(October 21, 1988) at 2. As LILCO is well aware, the trial l
court's judgment is final and fully enforceable until it is (Footnote Continued) i I
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Additionally, LILCO argues that the state court !
injunction restraining LILCO from using its Bellmore i
facility as an emergency reception center is not properly !
before us because the intervenors informed us of it by letter. LILCO claims they should have moved to reopen the i record. Stated most charitably, LILCO's argument is devoid ;
i of merit. j A motion to reopen a closed record under the !
Commission's Rules of Practice is designed "to consider f
additional evidence" of a factual or technical nature.13 A f reopening motion is not the necessary, or even appropriate, I vehicle to bring to our attention a recent nonevidentiary development like the court's decision in Town of Hempstead, l any more than such a motion would be the required method for i
advising us of relevant changes in the agency's ragulations, l t
applicable statutes or case law. In each instance, we may l take notice of such nonevidentiary matters. Moreover, LILCO's argument elevates form over substance. For, in f k
connection with the remand we order here, the Licensing [
i (Footnote Continued) !
overturned on appeal or otherwise amended. LILCO has [
neither sought nor obtained a stay of the court's mandate l and therefore we are not free to ignore it as LILCO i apparently wishes. In the event the judgment is reversed on l appeal or amended, LILCO can bring that fact to the [
attention of the Licensing Board. j 13 10 C.F.R. SS 2.734 (a) , (b) (emphasis supplied) .
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12 Board essentially will be considering the very factors to be taken into account in ruling on a motion to reopen -- i.e.,
the safety significance of the loss of the Bellmore facility and the effect of that loss on the overall adequacy of LILCO's plan for reception cent.9rs.
II.
In considering on remand the significance, if any, of the recent judicial development pertaining to the l availability of the Bellmore reception center, the Licensing [
l Board also will have to reexamine at least one of the j subsidiary findings in its May 9 decision. Specifically, the Board's conclusion that the LILCO emergency response plan made adequate provision for reception centers rested on the Board's acceptance of LILCO's estimate respecting the number of evacuees from the Shoreham plume exposure pathway I l
EPZ that would seek radiological monitoring in the event of
, an accident at the facility. For the reasons that follow, l the basis assigned by the Board for that acceptance does not withstand analysis. In addition, we have been referred to j i
nothing in the record that might serve as an adequate l Thus, the Board will be l substitute for that basis.
t confronted with the necessity of determining (perhaps i following the receipt of additional evidence) whether the l r
i LILCO estimate can be justified on some other basis that does enjoy the requisite record support. If such
13 justification is lacking, the Board will be obliged to arrive at a dif ferent planning estimate based upon the f
disclosures of record (as possibly expanded) . That estimate will then have to be employed in deciding whether the reception centers found to be currently available will suffice insofar as the monitoring (and possible '
decontamination) of evacuees is concerneo.
j A. By way of background, the Commission's regulstions contain the general requirement that emergency plans for the area surrounding a nuclear power plant provide adequate facilities and equipment to support the emergency 14 response. More detailed guidance on this score is found in a document issued jointly by the NRC and FEMA in Novemoer 1980 and identified as NUREG-0654/ FEMA-REP-1 (Rev. 1), l i
"Critoria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants." Included within this guidance is the 1
) provision in Criterion II.J.12 for radiological monitoring ;
a of EPZ evacuees: l I i 1 Each organization shall describe the means for l registering and monitoring of evacuees at <
relocation centers in host areas. The personnel I i and equipment available should be capable of I monitoring within about a 12 hour1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> period all residents and transients in the plume exposure EPZ .
t i
4 10 C.F.R. S 50.47(5)(8).
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l 14 arriving at relocation centers.15 NUREG-0654/ FEMA-REP-1 does not directly address the question of the number of individuals (expressed as a percentage of the total EPZ population) that must be used as a planning basis in deciding upon the necessary f:cflities and equipment for monitoring evacuees. In its decision, the Licensing Board determined that, as urged by LILCO with NRC staff endorsement, the appropriate basis is twenty percent of the EPZ population.16 From all that appears, the Licensing Board's acceptance of the figure was founded almost exclusively upon an internal FEMA memorandum. While there was other evhdence adduced on the subject, the Board essentially eschewed any reliance upon it.
The memorandum in question, dated December 24, 1985, was addressed to certain regional FEMA officials and was signed by Richard W. Krimm, Assistant Associate Director for 15 NUkEG-0654/ FEMA-REP-1 (Rev. 1) at 65. This guidance has been reinforced in the recent September 10:3 supplement to NUREG-0654/ FEMA-REP-1 concerning utility-prepared offsite emergency response plans such as that in issue here. It is now stated that the personnel and equipment available shall be capable of monitoring within about a 12-hour period all residents and transients in the plume exposure pathway EPZ arriving at relocation centers. NUREG-0654/ FEMA-REP-1 (Rev.
1, Supp. 1) at 20.
16 LBP-88-13, 27 NRC at 523. With a stated population of approximately 160,000 within the EPZ surrounding Shoreham, arrangements need to be made, using the twenty percent figure, for the monitoring of 32,000 evacuees. d.
J_d at 513.
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15 Natural and Technological Hazards, Office of State and Local Programs and Support. It stated at the outset that its purpose was to provide "interpretative guidance" with In respect to Criterion II.J.12 in NUREG-0654/TEMA-REP-1.
full, the memorandum's analysis on the matter was as follows:
The question arises as to the percentage of the evacuees that could reasonably be expected to arrive at a relocation center (s) . Previous experience gathered on evacuation responses to a variety of natural and technological emergencies is not conclusive. Research into this matter, however, has revealed that anywhere from 3 to 20 percent of the evacuees arrived at relocation centers or shelters. For radiological emergencies, it is reasonable to assume that additional evacuees, to allay their concerns and l
fear over radiation, will go to relocation centers l
' whether or not they have been exposed to radiation. Thus, the percentage of potential evacuees for radiological emergencies may be j
i closer to the upper end of the 3 to 20% range.
l l The congregate care issue is reviewed as a part of all Atomic Safety and Licensing Board hearings, although it has never been formally litigated at such a hearing. The congregate cara facility capacity in the vicinity of nuclear power plants is usually cited as being between 5 and 15 percent of the estimated number of evacuees. With these percentages in mind, it is apparent that there is significant diversity in the frame of reference surrounding this issue.
The guidance provided below is based on the l followilig factors: (1) Past experience with I
evacuations regardless of the nature of the i
j emergency, (2) inclusion of fear and uncertainty factors associated with radiological emergencies and (3) percentage of potential evacuees for congregate care facilities cited in ASLB hearings.
l The memorandum then opined that state and local radiological emergency preparedness plans should include trained 4
16 personnel and equipment at relocation centers for the monitoring of a minimum of twenty percent of the population within the ZP2.1 On their appeal, the intervenors take issue with the Licensing Board's reliance upon the Krimm memorandum. In large measure, that-objection res.ts on the use of data pertaining to the sheltering of evacuees in congregate care facilities for the purpose of determining the percentage of the evccuees who might seek monitoring but not require sheltering. ,
B.l. The genesis of the Krimm memorandum was an October 4, 1985 letter from Joseph H. Keller, a FEMA consultant assisting in the evaluation of the Shoreham emergency response plan, to FEMA Region II Counsel in which Mr. Keller requested clarification of Criterion II.J.12.!8 By way of explanation for the request, Mr. Keller noted that the Licensing Board had found the LILCO emergency response plan to be defective because of its failure to prepare 1
In the event that radiological releases from an accident dictate monitoring of a greater percentage of the EPZ population, the memorandum indicates that state and local governments would be expected to develop and implement ad hoc response measures. The memorandum does not refer to tee situation at Shoreham, where the state and local governments have refused to participate in emergency planning. But the applicability of its guidance to LILCO was not disputed at the hearing below.
8 See FEMA Exhibit 1.
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adequately for the monitoring of members of the general !
public arriving at the reception center.II As he observed, i while a planning basis of twenty percent of the EPZ i population had been considered acceptable by the Licensing Board for the sheltering of evacuees, that Board did not view the number of evacuees seeking monitoring necessarily to be the same as the number seeking sheltering assistance.20 Although Mr. Keller's immediate concern was in regard to the review of the LILCO plan, his letter went on to observe that the issue could affect the review of emergency respense plans for all nuclear power facilities.
Copies of the Keller letter were sent to FEMA's Washington, D.C. headquarters and one of those copies found its way to the Field Operations Branch. Craig S. Wingo, the Chief of that Branch, forwarded the letter to Marshall E.
Sanders, Chief of FEMA's Policy Development Branch, because, as Mr. Wingo stated, the issue was applicable as well to I
See LBP-85-31, 22 NRC 410, 417 (1985). At the same time, LILCO contetaplated the use of the Veterans Memorial Coliseum as the sole reception center for evacuces. As previously noted, the Coliseum subsequently became unavailable.
20 After a remand to the Licensing Board for Ibid.
additional consideration (ALAB-847, 24 NRC 412 (1986)), we affirmed the Board's determination that there might be evacuees seeking monitoring who would not require sheltering and directed it to go forward with its consideration of a LILCO motion to reopen the record. ALAB-855, 24 NRC 792 (1986).
18 emergency response plans other than that for Shoreham.21 i Subsequently, Mr. Sanders' staff (with a member of that staf f referenced as the point of contact) prepared the memorandum for the signature of Mr. Krimm, a superior of Messrs. Sanders and Wingo.22 The Krimm memorandum was offered and admitted into evidence as FEMA Exhibit 1. None of the FEMA witnesses sponsoring its admicsion, however, was a member of Mr.
Sanders' staff or had contributed in any fashion to the actual preparation of the memorandum.24 of those sponsoring witnesses, the single FEMA employee, Ihor W. Husar, stated 6
I in general that he did not formulate FEMA policy. The j
other two FEMA witnesses were employees of contractors that
! had been engaged by FEMA to assist in the review of the i
. See FEMA Exhibit 1.
22 Tr. 18,311-14, 3
Tr. 18,262. It was also introduced into the record as Attachment L to Crocker, et al., LILCO Exhibit 1 (admitted into evidence at Tr. 17,421).
24 See, on the matter of the need for Tr. 18,312-15.
sponsorship of documentary evidence, Kerr-McGee Chemical Corp. (Kress Creek Decontamination), ALAD-885, 27 NRC 59, 69 n.15 ~ (198 8) ; Public Service Co. of New Hampshire (Seabrook Station, Units ~1 and 2), ALAB-891, 27 NRC 341, 351 (1988).
Cf. Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-555, 10 NRC 23, 26-27 (1979).
25 Tr. 18,260, 18,359-60.
19 Shoreham eme;gency response plans.26 One of them was Mr. '
Keller, the individual who had solicited the interpretation of Criterion II.J.12 that had been supplied in the Krima memorandum.27 Beyond the fact that they were not involved in the preparation of the memorandum, the FEMA witnesses were unable to provide significant information on either its ,
development or the reasoning behind its assumptions. In this connection, the written testimony of these witnesses !
contained little discussion of the basis for the estimate of the percentage of evacuees that would require sheltering assistance.28 The responses of Messrs. Keller and Husar to questions posed to them on cross-examination were similarly not very illuminating. Mr. Keller stated that he had been told by a FEMA employee that existing data disclosed that between three and fifteen percent of the evacuees would l
! requite sheltering.29 This being so, he reasoned, the
! authors of the Krimm memorandum presumably had adopted the twenty percent figure for the evacuees to be monitored ;
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l 26 Tr. 18,260.
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s 27 Tr. 18,311, 18,3'5.
28 See Baldwin, et al., FEMA Exhibit 2 (admitted into !
) ;
evidence at Tr. 18,264) at 7.
)
i 29 Tr. 18,321-23.
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9 20 (whether or not also requesting sheltering) as including a "fudge factor.. O For his part, Mr. Husar expressed the ,
opinion that the FEMA estimate was "reasonable" L'ut went on ,
to acknowledge that it would also be "reasonable" to use a higher percentage as a planning basis (even though he probably would not do so) 31
- 2. We now turn to whether, despite the lack of involvement of the FEMA witnesses in its preparation and their resultant inability to supply adequate support for its conclusions, the Krimm memorandum no..Jtheless provides on i its face a sufficient foundation for the Licensing Board
- finding in question. For several reasons, we think it does not, t To begin v4th, underlying the analysis in the memorandum appears to be the tacit assumption that the issue ;
l it addresses is generic in character. For, as we read it, i I
the memorandum concludes, without qualification, . hat a twenty percent planning basis will suffice in the ;
t formulation of monitoring arrangements for not merely f Shoreham but all other nuclear facilities as well. That f premiso, however, is not so clearly justified as to warrant [
t acceptance in the absence of an explanation of the reasoning ;
I s
Tr. 18,322.
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Tr. 18,357, 18,360-61.
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I 21 at the root of its adoption. To the contrary, it seems to us that, among other things, the demographic and meteorological characteristics of a particular EPZ might have considerable influence upon the percentage of the persons within the EPZ that would, in the event of an accident, seek monitoring either on instruction or on their I evn initiative. For example, some EPZs doubtless could have a population that is concentrated close to or in a prevalent downwind direction from the reactor. It seems fair to assume for planning purposes that the percentage of such an EPZ population that would seek monitoring would significantly exceed that of the population of an EPZ in which most persons were located at gre.ater distances from the reactor and upwind. If for some reason this assumption is flawad -- i.e., that, in fact, all EPZs can be deemed fungible for this purpose -- the preparers of the memorandum l assuredly had an obligation to provide some measure of elucidation.3 If anything, the existence of this obligation became even more manifest upon the receipt of the testimony of a 32 The NRC staf f apparently recognizes (at least implicitly) that demographic and meteorological characteristics of the EPZ are relevant in the determination of a monitoring planning basis. As will be seen later (infra p. 29), it introduced into evidence an analysis that took into account some of the demographic a.id meteorological features specific to the 5horeham EP3.
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FEMA witness to the ef fect . hat, prior to the issuance of I the Krimm memorandum, FEMA arrived at appropriate planning bases for monitoring on che strength of what it considered l
reasonable for the particular EPZ under examination. 3 On j t
this score, Mr. Keller referred to the selection of a 1 planning basis of thirty-five to forty percent for the EPZ surrounding the Nine Mile Point nuclear facility in New York.34 Further, a FEMA review preceding the Kriam !
memorandum had led to a determination that an emergency plan for the Trojan facility in Oregon was inadequate because of f i
its failure to provide a capability to monitor, with. [
l approximately twelve hours, one hundred percent of the
(
portion of the EPZ population in adjacent Washington l
5 State. Mr. Koller opined that, given the Krimm momorandum, that determinatian has now been withdrawn.36 While that may be so, the question respecting the underpinnings of Mr. Krimm's election to eschew EPZ-by-EPZ analyses remains unilluminated.
Moving on to an examination of the three factors identified in the memorandum as the bases for its 33 Tr. 18,371.
34 Tr. 18,371, 18,379.
35 Tr. 18.372-74.
36 Tr. 18,374.
23 guidance,37 each has weaknesses that were not resolved on the record below. The first of the factors is past experience with emergency evacuations, respecting t.hich it is said that three to twenty percent of the evacuees arrived :
at shelters. The memorandum does not indicate, however, the ;
emergencies from which this percentage range was derived, let alone how many persons sought sheltering in the case of a specific emergency,38 Yet the type of emergency could be significant with respect to the percentage of evacuees requiring sheltering assistance. For example, a widespread l emergenr:y (such as a hurricane or severe nuclear accident) might be expected to produce a greater need for community sheltering arrangements than would a more localized event in which nearby relatives or friends outside of the area of danger might well be able to fulfill most sheltering !
requests.39 In this regard, it is noteworthy that, in 37 See supra p. 15.
8 Althou h staff witness Falk Kantor testified on cross-examinatfonthathehadbeenprovidedbyacontributor '
to the Kritra memorandum with a list of tha reports of emergencies that had been considered by him (Tr. 19,189-91),
and that list was then placed in evidence as Suffolk County Exhibit 33 (Tr. 19,209), the record remains devoid of any illumination respecting the percentage of evacuees that ,
might seek sheltering in the event of a particular type of reergency.
39 A widespread evacuation could also result in the demand for hotel accommodations in the surrounding region (Footnote Continued) l i
24 contrast to the percentage range for evacuees requirir.g sheltering assistance that the Krirm memorandum now suggests, other LILCO witnesses indicated in an earlier (1984) phase of this proceeding that, based on their review of past emergencies, planning for the sheltering of twenty percent of the EPZ population was being conducted.40 This sheltering assumption ippears unchanged, as LILCO's current emergency plan procedures still call for provisions to be ,
made for congregate care (i.e. , sheltering) of twenty percent of the EPZ population.4l
- The second factor cited in the Krimm memorandum as a basis for the twenty-percent planning basis figure was the ,
"fear and uncertainty" associated with radiological !
emergencies. The memorandum assumes, without discussion, that, because of this factor, the percentage of the evacuees a who might report for monitoring will be closer to the upper ,
end of the three-to-twenty percent range for shr.itering.
But the record contains very little to enable a confident i
i t
(Footnote Continued)
< (outside the evacuation zone) exceeding the supply, with the
! consequence that a higher percentage of evacuees might .
require shelteritg assistance. l 40 Cordaro, et al., fol. Tr. 14,707, at 18-20,
- I See Crocktr, et al., LILCO Exhibit 1 Attachment P, l I
OPIP 4.2.3 at 3.
j i
25 t P
b judgment especting t e accuracy of such an assumption.42 In this connection, the fact that, as LILCO stresses, only a j small percentage of the evacuees during the Thtee Mile ,
Island (TMI) accident in 1979 sought monitoring does not tell us much regarding the percentage of Shoreham EPZ ;
evacuees that would likely request such action.43 For it j also appears that the TMI monitoring program was not put into effect until two weeks after the accident and, still further, it is unclear whether there was an announcement at ,
any juncture that evacuees should be monitored.44 ;
r Suffolk County witness Stephen Cole conducted a '
survey of Long Island residents aimed at determining, in general terms, the size of the group that would report for !
monitoring in the event of an accident at Shoreham. Cole, :
et al. , Suf folk County Exhibit 13 (admitted into evidence at Tr. 17,815) at 12-13. As found by the Licensing Board, however, such surveys are of little value in predicting the -
percentage of the population that will, in fact, seek ,
monitoring. LBP-88-13, 27 NRC at 523. Regardless of the i survey results, that percentage will be significantly ;
influenced by the information provided to the public at the !
time of the accident. I See Crocker, et al., LILCO Exhibit 1 at 15. l 44 Ibid.; Tr. 18,470-71, 19,192-95. It is worthy of passing note that, although the Krimm memorandum endeavors t (albeit inadequately) to take into account that some ;
evacuees might be led to seek monitoring because of fear !
rather than an official instruction, the f.icensing Board i rejected this concept of a "monitoring shadow" in reaching i its result that a twenty percent figure was appropriate. :
LBP-88-13, 27 NRC at 523, 551. Nonetheless, the Board did caution that confused or conflicting emergency information provided to the public could cause a monitoring shadow that (
would result in a much greater number of individuals (rootnote Contir.ued) {
4 f
i
Y c , .
s 26
.W the Krimm memorandum asserts, with no
.elab thatever, that "[t]he congregate care facility cap the vicinity of nuclear power plants is usually cited .,, neing between 5 and 15 percent of the estimated number'of evacuees."45 While it is then stated that the 7 source of 'chis representation is "ASLB hearings," Mr. Krimm -
fails to identify a single NRC proceeding in which the issue ef the adequacy of congregate care facilities was even litigated. That deficiency assumes additional importance in light of the fact that, for the purpose of impicmenting the i Shoreham emergency p :n, LILCO currently assumes that twenty percent of the evacuees will require congregate care.46 Beyond that consideration, estimdtes respecting the ;
percentage of evacuees that will require sheltering (and [
j thus necesaarily sill undergo monitoring) are >f little, if any, assistance in arriving at an informed judgment respe: ting the percentage of the EPZ population that might I
t 4
(Footnote Continued) reporting for monitoring. Id. at 523-24. LILCO contends, however, that no "competent bhorger.cy planning professional" had ever embraced the idea that people are so frightened of radiation that they would floo from it no matter what the actual risk. LILCO's Brief in opposition to Intervonors' Appeal of the Licensing Board's Partial Initial Decision on the Suitability of Reception Centers (July 25, 1988) at 35. ,
45 See supra p. 15. i 46 Crocker, et al., LILCO Exhibit 1, Attachment P, OPIP 4.2.3 at J.
l 1
27
?
seek monitoring alone. As Mr. Krimm appears implicitly to ,
concede,.there is no established relationship between the number of evacueee in the two categories. The most that can be said is that the total number of persons to be monitored will exceed the number of eersons seeking sneltering.
Accordingly, sheltering estimates provide no more than a base point in arriving at a reasoned estimate with respect to monitoring te.quirements.
C. In sum, the Licensing Board erred in endorsing, on I
the strength of the Krimm memorandum alone, the twenty percent planning basis for the monitoring of evacuees. It i remains to be considered whether there was other evidence i
adduced by the applicant or the staff that, although no.
relied upon by the Board, was so compelling as to have ,
mandated the result reached below on the planning basis issue. The witnesses sponsored by LILCO certainly did not supply such evidence. Indeed, their testimony went a very short dist. in providing support for the twenty percent figure.
To begin with, witness Dale E. Donaldson was produced as a former NRC employee who had assisted in late 1979 in the dra f ting of a precursor of NUREG-0654/ FEMA-REP-1.47 He 4
Crocker, et al., LILCO Exhibit 1 at 8; Tr. '
17,439-40.
t
28 stated that, although they did not have a specific number of evacuees in mind for the monitoring planning basis, the drafters believed that only a small percentage of the EPZ population would require monitoring.4 Whatever may have been the belief of Mr. Donaldson and his colleagues, r however, as seen Criterion II.J.12 mandates the availability of sufficient personnel and equipment to monitor within the apscified tucivr hour pericd all thosc crriving at the reception centers.49 Thus, the question is how many people are, in fact, likely to come to the centers. On this score, f
the speculation to which Mr. Donaldson referred -- nine years ago -- is of little moment, Witness Diane P. Dreikorn testified that, the Krimm memorandum to one side, the "sound judgment" of LILCO's emergency planners led them to the conclusion that a twenty percent figure was a good starting point.50 She went on to indicate that LILCO had gone beyond that point and supplied ,
the capability (assuming the availability of the Bellmore facility) of monitoring forty-six percent of the EPZ 48 Crocker, et al., LILCO Exhibit 1 at 8; Tr.
- 17,452-54.
49 See supra pp. 13-14.
50 Tr. 17,744.
P
% y->-y.-,e ,
v7m--- ,e m-m -- ,e------v-- . - , . . , _ , - . , - - - - , - . - - - , - - - - - - . . . ,--w -
29 population.51 And, for his part, Douglas M. Crocker did little more than relate his experience with floods and coal mine "problems" in Kentucky, simply noting that few persons arrived at evacuation shelters.52 That experience obviously has very limited probative value with regard to the matter at hand.53 In contrast to LILCO, the staff presented an analysis to buttreau its endorsement of the twenty percent figure.54 That analysis was performed by Lewis G. Hulman, the Chief of the Plant Systems Branch in the Division of Boiling Water Reactors of the Office of Nuclear Reactor Regulation, and involved both projected population concentrations within the Shoreham EPZ and various meteorological data.55 The purpose of the analysis was to determine the probability that a certain number of individuals within the EPZ would be exposed in the event of a radiological accident at 51 Ibid.
8
'2 tr. 17,759-60.
53 See supra p. 23.
54 Kantor and Hulman, Staff Exhibit 5 (admitted into
[ evidence at Tr. 19,184). In his prepared testimony as the i lead staff witness on the question of the reasonableness of the twenty percent figure, Mr. Kantor put considerable emphasis on the analysis. See Kantor, Staff Exhibit 5 at 7.
b Hu2 man, Staff Exhibit 5, at 1-2.
4 30 Shoreham.56 The Licensing Board did not examine Mr.
Hulman's methodology or conclusions in great detail, simply noting the "fortuitous" similarity between his results and the Krimm memorandum conclusion.57 As we see it, howaver, the Hulman analysis might have represenrod a good beginning for the establishment of a planning basis but, of itself, scarcely compelled the conclusion that the twenty percent figure was reasonable. The percentage cf the population that would be contaminated by exposure tr- the radioactive plume occasioned by an accident perforce will be smaller than the percentage of evacuees arriving at the reception center (s) either on instruction or on their own initiative.58 In this connection, it is a virtual certainty 56 Id. at 1, 7-8.
57 LBP-88-13, 27 NRC at 523.
58 The intervonors assert that the staff analysis produced too low a prediction respecting the number of contaminated individuals because of its assumption of constant wind direction throughout the accident. The staff believes thct the analysis compensated for this assumption (1) by including the total population residing within a two-mile radius of the plant and (2) by omitting protective measures such as sheltering. Hulman, Staff Exhibit 5, at 8; Tr. 19,211-12, 19,222-23. Before reliance can be placed on the staf f analysis, the sensitivity of the results of the analysis to historical variations in wind directions for the site will have to be explored. Further, Mr. Hulman selected a value for the number of individuals likely to be contaminated based on the probability that ninety percent of all accidents would result in a fewer number of contaminated individuals. Tr. 19,224. An explanation as to w:1y ninety percent is an appropriate criterion is necessary.
31 that, in determining who should be monitored, the of ficial (s) charged with the responsibility for making that decision will select an area larger than that over which the plume passed.59 D. For the foregoing reasons, we cannot now accept the Licensing Board's determination that "a figure of 20% of the EPZ population, expandable in extreme cases, is a defensible figure for the number of people for which planners rau.t provide a 12-hot: monitoring capacity."60 As we have seen, that determination does not derive adequate support from the sole piece of evidence -- the Krinm memorandum -- upon which j the Board relied. Nor have we beer, pointed to any other evidence in the existing record thac might compel the conclusion that, albeit for the wrong reason, the Licensing Board reached the right result on the planning basis issue.
This is not to say that we have now determined that it would be impossible to justify the use of the twenty percent figure. We need not and do not speculate on that point. It is enough for present purposes to decide that nothing in the portions of the existing record brought to our attention In this regard, the testimony of LILCo's witnesses indicated that, for protective action planning purposes, the plume is considered to cover a much larger area than that assumed by the Hulman analysis. Compare Hulman, Staff Exhibit 5, at 7, with Crocker, et al., LILCO Exhibit 1 at 9.
60 LBP-88-13, 27 NRC at 523.
a 32 supplies the requisite justification. It may be, of course, that the parties have overlooked some crucial evidence nestled in the deep recesses of that record. It is also ,
conceivable that the applicant and staff might be able to adduce additional evidence that would cure the deficiencies in the proof presented by them to date. But these are matters that must be dealt with by the Licensing Board in the first inblance. In reaching its conclusion regarding the significance of the judicial decision on the <
availability of the Bellmore facility, the Licensing Board must resolve the planning basis issue. And its avaluation of the evidence of record on that issue -- whether that evidence is found in the present record or is newly adduced on the romand -- must, of course, be made in light of our ,
critical appraisal in this opinion of the Krimm memorandum and the testimony of various witnesses on the planning basis issue.
In this connection, we appreciate that there has been ,
no prior experience in this country with the immediate monitoring of individuals who were located within a nuclear f facility's EPZ at the time of a radiological accident at that facility. Moreover, our attention has not been directed to any other type of accident or natural disaster l
that might call for some form of monitoring. Consequently, 4
there will not likely be hard empirical evidence to justify any conclusion respecting the number of persons likely to I
i i_ _ _ _ _ . . . ____ _ _ , , _ , _ _ _ _ . _ _ _ . _ . _ _ _ _ _ _ _ .
. l 33 seek monitoring, but not sheltering, in the event of a Shoreham radiological emergency.61 It ices not perforce follow, however, that it will prove is;ossible to provide a reasoned estimate on that score, sufficient to undergird a monitoring planning basis well under one hundred percent of the EPZ population. There are many areas in which estimates likewise must be made, for one purpose or another, without the benefit of empirical experience. Whether an estimate so disadvantaged can carry the day necessarily hinges upon whether a rational explanation has been supplied for it. As we have seen, the present difficulty with the Krimm memorandum (and the Licensing Board's finding based upon it) is that they are devoid of such an explanation.
III.
The intervenors also raise three other issues on appeal. First, in an argument that is simple and straightforward, they maintain that 10 C.F." S 50.47 (a) (2) mandates that the agency's findings on the adequacy of an emergency plan must be based on a review of FEMA's fin ngs and determinations. According to the intervonors, FEMA made no findings, "preliminary, intozim or otherwise" on the 61 As suggested earlier in this opinion (supra p. 23),
the data associated with such events as hurricanes might be useful in predicting the percentage of persons within the EPZ that would require sheltering.
34 ,
overall adequacy of LILCO's reception centers and FEMA witnesses testified that they could make no findings until a graded emergency plan exercise was conducted.62 The intervenors therefore assert that the Licensing Board's findings are based on a legally deficient record and the case must be remanded to await such findings.
The answer to the intervenors' argument is equally short and direct. The Commission's regulations do not ,
require that the Licensing Board await specific FEMA findings, "preliminary, interim or otherw.'se," on the i overall adequacy of LILCO's reception centers as a condition precedent to deciding the discrete issues about those centers.
4 In its entirety, 10 C.F.R. S 50.47 (a) (2) states that
[t]he NRC will base its finding (that adequate protective measures can and will be taken) on a review of the Federal Emergency Management Agency (FEMA) findings and determinations as to whether 4 State and local emergency plans are adequate and whether there is reasonable assurance that they can be implemented, and on the NRC assessment as 4 to whether the applicant's onsite emergency plans are adequate and whether there is reasonable assurance that they can be implemented. A FEMA finding will primarily be based on a review of the plans. Any other information already available to FEMA may be considered in assessing whether there is reasonable assurance that the plans can be implemented. In any NRC licensing proceeding, a FEMA finding will constitute a rebuttable presumption on questions of adequacy and i implementation capability.
62 Intervenors' Brief (June 20, 1988) at 31.
t 4
,.4- , - - . - - - - - - , . _
35 Among the flaws in the intervenors' argument is that they ,
read only the first sentence of the section and ignore the remainder. Contrary to their assertions, it is not true that the regulation precludes the Licensing Board from deciding the specific issues involved here under a utility plan unless the Board first obtains FEMA findings. Rather, section 50.47 (a) (2) provides that "(a]ny other information" that is also available to FEMA may be considered by the Commission in assessing the adequacy of the plans. In this case, that information ir the evidentiary record supplied by the parties. Moreover, in a licensing proceeding, any FEMA finding constitutes only a "rebuttable presumption." Thus, for example, even where FEMA has made findings, the Board clearly has the authority to decide issues contrary to those findings on the basis of other record evidence. That being so, it is difficult reasonably to read section 50.47 (a) (2) as denying the Board the authority to decide the issues
- involved here on the basis of other evidence when there are l
l no FEMA findings. Before us, the intervenors do not (and on l the basis of the record cannot) claim there is no evidence 1
to support the Board's findings on each of the challenged l l
.ssues regarding LILCO's reception centers. They argue only that, based on an erroneous reading of a single sentence of the regulation, there are no FEMA findings in the record.
Accordingly, the intervonors' argument must fail.
}
l i
36 Next, the intervenors complain about the Licensing Board's treatment of their claim that, in a radiological emergency, LILCO's reception centers will become "locally unwanted land uses" (LULUS) that will precipitate a shadow evacuation by the people living around the centycs. In direct testimony, a witness fer Suffolk County indicated that people living in the vicinity of the reception centers will perceive them as threats, i.e., LULUS, because people discern radiation and its associated hazards with particular dread and the centers are designated as places where decontamination activities will be conducted. According to the county's witness, the people residing in the heavily populated areas around LILCO's centers therefore will flee in an emergency. In the areas around the reception centers, this shadow evacuation will assertedly add to the considerable congestion already on the overloaded road network from people leaving the EPZ and further delay beyond acceptable limits evacuees from the EPZ. The intervonors argue that the Licensing Board did not make explicit findings on this matter and therefore committed reversible error for failing to articulate any basis for resolving this question.
63 Johnson, et al., Suffolk County Exhibit 15 (admitted into evidence at Tr. 17,998) at 17-20.
1 -.
1 37 As the intervenors correctly coint oute the Licensing Board has a duty "to articulate in reasonable detail the basis for (its) determinations" so that the parties and any reviewing tribunal can apprehend the foundation for the lower Board's ruling.04 Here, however, the basis for the Licensing Board's resolution of this issue is readily apparent so the intervenors' argument is without merit.
Under an organizational heading titled "The Evacuation Shadow Phenomenon," the Licensing Board initially catalogued the testimony of the parties on the evacuation shadow purportedly caused by the distance of LILCO's reception centers beyond the boundary of the EPZ. The Board then turned to the LULU issue and detailed the testimony presented by the county and the contrary testimony of LILCO's witnesses. The latter claimed that relevant empirical evidence overwhelmingly demonstrated that people do not flee from places simply because they involve some sort of radiological activity but, instead, they evacuate a hazardous area only when the danger has been defined by an authoritative source.65 Next, under a heading labeled 64 Northern States Power Co. (Prairio Island Nuclear Generating Plant, Units 1 and 2), ALAD-104, 6 AEC 179 & n.2 (1973). See Seabrook, ALAB-422, 6 NRC at 41. See also 5 U.S.C. S 557 (c) .
6 See Crocker, et al.,
LBP-88-13, 27 NRC at 549-50.
LILCO Exhibit 1 at 23.
38 "Board Decision on Evacuation Shadow Phenomenon," the Licensing Board referenced its earlier decision in LBP-85-12,66 where it addressed the shadow phenomenon and concluded that in an emergency the public will behave in accordance with the public information given them. The Board found that the county's evidence en the locations of the. reception centers did not shake its faith in the correctness of its carlier conclusion, even though it is possible that an evacuation shadow could occur if confusing or conflicting public information was disseminated.
Finally, it closed this portion of its decision with a one sentence paragraph stating "[h]ere we find LILCO has carried l
the day."67 Even though the Licensing Board did not make separate l explicit findx..,) on the LULU question, we believe it is
- clear from the ultimate finding in favor of LILCO, the organization of its discussion of the evacuation shadow, and i
its last remark, that the Board was rejecting outright the j county's evidence that LILCO's reception centers would become locally unwanted land uses spurring additional shadow evacuations in a radiological emergency. Rather, the Board chose, as it said, to let LILCO's witnesses carry the day on i
i I
66 21 NRC 644 (1985).
67 LDP-86-13, 27 NRC at 551.
i
39 this issue as well by adopting their testimony that paralleled the Board's earlier finding in LBP-85-12 that in an emergency the public will behave according to the information given them.
Finally, the intervenors claim that the Licensing Board erred in striking the direct testimony of several of their witnesses that addressed the adequacy of LILCO's procedures for registering evacuees at its reception centers. This testimony was one paragraph long and was filed by the State's panel of witnesses from the New York Radiological Emergency Preparedness Group. The gist of the testimony was that LILCO's registration procedures were insufficient because they called for recording the names and addresses of only those evacuees found to be contaminated and did not call for recording the names of all evacuees monitored at tne reception contor.68 on LILCO's motion,69 the Licensing Board struck this portion of the profiled direct testimony ruling that it does not materially relate to the issues in the proceeding. Alternatively, the Board found that the State had not offered any regulatory basis for requiring 68 Papile, et al., New York State Exhibit 1 at 22-23.
69 LILCO's Motion to Strike Testimony of Papile, et al.
(April 18, 1987) at 2-3.
l 40 O
more stringent recordkeeping procedures. Even though the i
Board struck the State's testimony, it nevertheless considered the question of the adequacy of LILCO's registration procedures in its findings. The Board found j that detailed information on uncontaminated evacuees was not needed and that LILCO's recordkeeping procedures were adequate.71 The intervenors now assert, without more, that ,
the Doardi n ruling striking their testimony was without any ;
basis and clearly in error. They ask us to reverse the 4
Board's finding and to remand the isrue for further evidentiary hearings.
While it is true that the Licensing Board initially struck the State's direct testimony on this matter, the Board, in effect, reversed its earlier ruling when it announced its findings and considered the issue raised by the State's witnesses. Moreover, as is apparent from its decision, the Board fully considered the State's direct testimony in making its finding on the adequacy of LILCO's 1
recordkeeping procedures, so the State was not harmed by the [
Board's original rulieg.72 Indeed, the testimony relied t
0 Memorandum and Order (June 17, 1987) (unpublished) ,
at 4-5. ;
7I LBP-88-13, 27 NRC at 562-63.
2 Ibid, i
. - -,. - . _ . - ,,,-_.-.-.-,--.-...,.-..-_,_._-.-,_-_-.._,--n - . - - - . . _ , . . . _ , . _ .
41 upon by the Board in deciding the issue against the State was clicited by one of the intervenors on cross-examination of a FEMA witness.7 In the circumstances, any error by the Board in initially striking the testimony was, at most, harmless and requires neither that we reverse the Board's finding nor that we remand the issue for further evidentiary hearings.74 IV.
For the foregoing reasons, the Licensing Board's findings in LBP-88-13, 27 NRC 509 (1988), regarding the questions of "locally unwanted land use" and LILCO's registration procedures are affirmed. The portion of the intervenors' appeal challenging the Board's action of making i
findings without first obtaining FEMA findings is denied.
That part of the Licensing Board's decision concerning the monitoring planning basis is vacated. The case is remanded to the Licensing Board for further consideration of the monitoring planning basis and the effect of the judgment in Town of Hempstead v. Long Island Lighting Co., Index 3
Tr. 18,274-76.
See ALAB-788, 20 NRC 1102, 1151 (1984).
42 23779/87 (N.Y. Sup. Ct., 1988), on the Board's findings b
dealing with the sufficiency of LILCO's reception centers, It is so ORDERED.
FOR THE APPEAL BOARD D.b4 C. Jc%n Shoemaker Secretary to the Appeal Board l
5 We are fully aware that in LBP-88-24, 28 NRC 311 (1988), the Licensing Board dismissed the intervenors from the proceeding and that decision has been appealed.
Regardless of the outcome of the appeal, however, some further Licensing Board action will be necessary after the appellate process has run its course in light of our treatment of the substantive health and safety issues involved. See Northern States Power Co. (Prairie Island Nuclear Generating Plan Units 1 and 2), ALAB-230, 8 AFC 458 (1974). Cf. Sacramentu Municipal Utility District (Rancho Seco Nuclear Generati.:q Station), ALAB-655, 14 NRC 799, 803 (1981).
We are, of course, also aware of the President's Nov0mber 18, 1988 Executive Order No. 12,657 titled "Federal Emergency Management Agency Assistance in Emergency Preparedness Planning at Commercial Nuclear Power Plants."
53 Fed. Reg. 47,513 (1988). Section 3 (b) (2) authorizes FEMA in certein circumstances "to provide reception centers or shelters and related facilities and services for evacuees."
Id. at 47,514. When, as and if that authority is invoked, and FEMA undertakes to furnish reception centers in supplementation of or substitution for those supplied by LILCO, the Licensing Board presumably will be so advised and can take that new development into account.
_ _ _ _ _ _ _ _ _