ML20211D743
| ML20211D743 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/16/1986 |
| From: | Matchett S HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#486-1178 ALAB-832, OL-3, NUDOCS 8610220259 | |
| Download: ML20211D743 (22) | |
Text
.. k
)177
/ ya UNITED STATES OF AMERICA l ,,
/'
N/
'01 NUCLEAR REGULATORY COMMISSION 3 OCT 171MIF 1 cI[EIIf[b3:b:t /h
- cw ;.ic p
Before the Commission \N -
' . .TJTSq\P In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3 (Shoreham Nuclear Power Station,
)
)
(Emergency Planning) [
Unit 1) )
LILCO'S ANSWER TO BRIEF OF SUFFOLK COUNTY ET AL. ON THREE ALAB-832 ISSUES TO BE REVIEWED BY COMMISSION liunton & Williams 707 East Main Street P. O. Box 1535 Richmond, VA 23212 October 16, 1986 8610220259 061016 DR Apocg agogaggy PDR C303
TABLE OF CONTENTS Page I. In Both Contention 22.B and 22.C, The Intervenors Would Have the Site-Specific Part of the Regulation Consume the Generic Part. . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Contention 22.C, to the Extent It Has Not Already Been Litigated, Challenges the Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. The Intervenors have already litigated the
' issue they say is raised by Contention 22.C . . . . . . . . . . . . . . . . . . . . . 3 B. The case law cited in the Intervenors' brief does not support their position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 C. The " shadow phenomenon" is not of like kind with the " conditions" listed in S 50.47(c)(2); rather, it is a totally new theory for establishing EPZ boundaries f rom scratch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 III. LILCO's Emergency Plan for Hospitals Satisfies N R C Regula tions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. The record shows that LILCO has planr.ed extensively for hospital evacuation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 B. NRC regulations do not "expiicitly" require evacuation plans for hospitals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 i C. Even if more specific hospital evacuation plans are ordinarily required, their absence in this case is not significant under 15 10 C.F.R . S 5 0.4 7(c)( 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15 C o nclusio n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
i
. . - , . _ - - , . _ - . _ . . _ _ . - . _ _ = - , _ - - -
o .
TABLE OF AUTHORITIES CASES Page Cincinnati Gas and Electric Co. (Zimmer Nuclear Power Station, U nit 1), A L A B-727,17 N R C 76 0 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Consolidated Edison Co. of New York (Indian Point, Unit No. 2),
LB P-8 3-6 8, 18 N R C 811 ( 19 8 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
LBP-84-37,20 NRC 933 (1984), aff'd. ALAB-813,22 NRC 59 j
( 19 8 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 , 6 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit
- 1) A LAB-832, 23 N RC 135 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 6 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 N RC 64 4 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LB P-8 3-22,17 N RC 6 0 8 (198 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LB P-8 2- 19, 15 N R C 6 01 ( 19 8 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), ALAB-698,16 N RC 1290 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-85-14, 21 NRC 1219 (1985). aff'd in relevant part, ALAB-836,23 NRC 479, review declined, CLI-86 _,24 NRC (J uly 2 4, 19 8 6 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7
- - - - . a ,, . _,, , - - - , - - . -- e. , - - - - . - , - -- - --. , -------r-,
O .
-11 REGULATIONS 1
Title 10 C.F.R. S 5 0.47(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Title 10 C.F.R. S 5 0.47(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Title 10 C.F.R. S 5 0.4 7(b)(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14 Title 10 C.F.R. S 50.47(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Title 10 C.F.R. S 5 0.47(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim OTHER AUTHORITIES CITED Black's Law Dictionary (4th ed.1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plans, NUREG-0654/ FEMA-Rep-1/Rev.1 (1980) . . . . . . . . . . . . . . . . . . . . . . . . 13, 14 Planning Basis for the Development of State and Local Government Radiological Emergency Response Plans In Support of Light Water Nuclear Power Plants, NUREG-039619PZ 520/1-87-016 (pecember 1978) . . . . . . . . . . . . . . . . . . . . . 8 W. Statsky, Legislative Analysis and Draf ting (2d ed.1984). . . . . . . . . . . . . . . . . . . . 8 Webster's New Collegiate Dictionary (1977 ed.) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 i
l l
I
- - - - --.c.-. ..---4---__ -, m._ --- -_ ~ .--- - , - - - - -_ - . - - - - - vr -- - - -- -- - - - - -- -
r-
LILCO, October 16, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S ANSWER TO BRIEF OF SUFFOLK COUNTY ET AL. ON THREE ALAB-832 ISSUES TO BE REVIEWED BY COMMISSION The Intervenors' arguments on the three issues to be reviewed by the Commis-sion pursuant to its Order of September 19,1986, are presented in the "Brief of Suffolk County, the State of New York, and the Town of Southampton on Three ALAB-832 Is-sues to be Reviewed by Commission," dated October 9,1986 (hereinaf ter "Intervenors' Brief"). This is LILCO's answer to that brief.M I. In Both Contention 22.B and 22.C, the Intervenors Would Have the Site-Specific Part of the Regulation Consume the Generic Part As to both Contention 22.B and 22.C the Intervenors claim that they are merely raising " conditions" such as 10 C.F.R. S 50.47(c)(2) makes relevant to setting an EPZ boundary. The basic infirmity in this argument is that it stands the regulation on its head and proposes a completely new theory for setting EPZ's. To use the cliche, the In-tervenors want the site-specific tail to wag the generic dog. Indeed, they want the dog beaten to death in the process.
1/ The Intervenors' Brief begins with the gratuitous footnote 1, which both reargues the " schools" issues and questions the Commission's integrity. It has nothing to do with the issues to be addressed here and should be ignored.
4 Admittedly, an EPZ has a generic component and a site-specific component.
The generic component is the rule that the EPZ be "about 10 miles . . . in radius."E The site-specific component is nothing more than a fine-tuning of the 10-mile zone, to "be determined in relation to local emergency response needs and capabilities as they l
are affected by such conditions as demography, topography, land characteristics, access
- routes, and jurisdictional boundaries." For example, it makes sense to depart from a perfect geometric circle in order to run the boundary down a prominent highway so
- that people will know clearly where the boundary is, and the case law also tells us that 4
- an EPZ may be bulged out (or in) to avoid bisecting a discrete population. But, as i
! ALAB-832 and the earlier case law make clear, these site-specific adjustments are j minor ones.
The Intervenors' theory in 22.B and 22.C, on the other. hand, is that the site-1 I specific part of the regulation is dominant, and indeed that it consumes the generic part. The Intervenors in effect allege that, if someone can come up with a theory -
any theory - by which geographic or demographic considerations can be used to set an l
I
~
EPZ, then the 10-mile generic distance is to be ignored. The Intervenors come closest to acknowledging this in the following sentence, from page 6 of their brief:
If by alleging that local emergency response needs and capa-bilities, as affected by precisely the types of local conditions
! specified in the regulation, Contention 22.B can be said to i
" challenge ( ) the generic rulemaking finding that a 10-mile l
EPZ will provide an adequate basis for satisfactory ad hoc l
emergency response beyond 10 miles should this be required,"
I then the Commission's own regulation, Section 50.47(c)(2),
l constitutes a so-called " challenge" as well.
l 2/ As noted in LILCO's principal brief (LILCO's Brief at 2-3), the generic 10-mile l distance is based on a carefully considered assessment of risks, including an analysis of design basis accidents from some 70 nuclear plants and an analysis of core-melt acci-f dents from WASH-1400. See NUREG-0396, App. I. This generic analysis does not change f rom reactor to reactor.
--,,w,-. , ~ ... . ....,-e.-,...,----n e,.,- - - . , , _ ,,.n - w ,.n ,,_ _ , w, y --,c.--~,m_ . - - - ,
Intervenors' Brief at 6. Obviously an interpretation of a regulation that has one part of it nullify another is incorrect. In this case it is also contrary to the Commission's in-tention; as LILCO noted in its principal brief, the whole point of S 50.47(c)(2) was to create a generic distance for EPZ's. LILCO's Brief on the Three Issues Addressed in the Commission's September 19 Order (hereinaf ter "LILCO's Brief"), Oct. 9,1986, at 12-13 n.17.
II. Contention 22.C, to the Extent it Has Not Already Been Litigated. Challenges the Regulation A. The Intervenors have already litigated the issue they say is raised by Contention 22.C Astonishingly, the Intervenors' characterization of the issues raised by Conten-tion 22.C makes clear that they are ones that were already litigated in this proceeding.
On page 10 of their brief they state the " logical connection" between the size of the EPZ and the shadow phenomenon as follows:
Specifically, the movement of voluntary evacuees from fur-ther than 10 miles from the plant will impede the ability of persons from within the 10-mile area, who have been advised
- to evacuate, to do so as necessary to protect themselves.
Therefore, planning and preparedness for an area larger than the 10-mile zone proposed by LILCO is necessary to assist and control the voluntary evacuees and to prevent them from impeding the evacuation of people who must evacuate the 10-mile zone in order to avoid potential exposure to radiation.
Intervenors' Brief at 10.
The parties have "already litigated whether the " shadow phenomenon" would delay evacuation from the 10-mile EPZ. S_ee Long Island Lighting Co. (Shoreham Nucle-ar Power Station, Unit 1), LDP-85-12,21 NRC 644,801-04 (1985)(hereinaf ter "PID"). In particular, Contention 23.D alleged that LILCO's evacuation time estimates were inac-curate because they did not account for the larger number of evacuees in the " shadow."
To the contrary, the Board concluded, af ter litigation of this issue, that "LILCO has
l l
given reasonable consideration to the possible impacts of shadow evacuation on evacua-tion traffic arising from within the EPZ." PID,21 NRC at 804. The results, the Board found, "show that excess evacuation poses no barrier to evacuation of all or part of the EPZ." Id. The Board recognized spontaneous evacuation as a source of uncertainty in
( the time estimates and required that it be taken account of by including LILCO's sensi-tivity analysis in the emergency plan. PID,21 NRC at 804,806-09.
The Intervenots also claim that Contention 22.C raises the issue of preventing voluntary evacuees from approaching or entering the 10-mile zone:
- Similarly, again as noted in the contention, planning and preparedness in the area beyond 10 miles is necessary to prevent voluntary evacuees from approaching or entering the 10-mile zone which potentially could be contaminated . . . .
Intervenors' Brief at 10.
Again, this precise issue was litigated and decided by the Board. Contention 23.H addressed perimeter access control - basically the allegation that "[v]oluntary evacuees from the east end might travel into contaminated areas and receive health-threatening doses and would add to congestion within the EPZ." PID, 21 NRC at 804.
The Board found that LILCO's plans for EPZ perimeter control are reasonable:
We cannot accept that citizens are so contrary in behavior that they will first evacuate a safe place against public in-
! struction and then clamor in large numbers to enter an unsafe place again in conflict with public information. The problem posed in Contention
- 23.H is speculative and without founda-
! tion.
PID, 21 NRC at 805. Thus, the Intervenors have now admitted, on page 10 of their l brief, that Contention 22.C raises issues that have alrea'ly been litigated.3/
i
- 3/ In light of this, it is hard to accept the Appeal Board's rationale for admitting i
Contentions 22.B and C, which was that two different contentions may be admitted even though they are based on the same alleged f acts. See ALAB-832,23 NRC at 148.
(footnote continued) l l
l
,o .
l B. The case law cited in the Intervenors' brief does not support their position 4
l The case law cited by the Intervenors for the proposition that the Appeal Board's ruling was correct is not dispositive. The two cases are Duke Power Co. (Catawba Nu-i clear Station, Units 1 and 2), LBP-84-37, 20 NRC 933, 979-89 (1984), aff'd, ALAB-813, 22 NRC 59 (1985) and Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-85-14,21 NRC 1219,1236 (1985), aff'd in relevant part, ALAB-836,23 NRC 479, 492-500, NRC review denied, July 24,1986, both cited in ALAB-832,23 NRC at 149 4
n.40.
In neither of these cases did the boards conclude that the EPZ should be en-i larged. The Intervenors' point, however, is that contentions about EPZ size were ad-mitted in the first place. But this does not call for admitting Contentions 22.B and i
< 22.C in this case. In neither Catawba nor Limerick was the issue of whether the con-tention should be admitted presented to the Appeal Board, let alone to the Commission; if the contentions in Catawba and Limerick were like 22.B and C in this case, admitting l them in those cases was just as erroneous as admitting them in this case, and neither the licensing boards' decisions nor the Appeal Board's citing them with approval in ALAB-832 is binding on the Commission. Moreover,it appears that the issues admitted in Catawba and Limerick were similar to the issues iltigated in Shoreham under Con-tentions 22.D,23.D and 23.H, discussed above.
1 T
j (footnote continued)
Even if this la so, it would at most permit the Intervenors to argue that the facts al-ready on the record support an expansion of the EPZ, even if they do not prove the In-tervenors' allegations about the number of evacuees, traffic congestion, and evacuation l time estimates. This would be an issue for legal briefing, not further evidentiary hear-ings. And in this case, where the Intervenors in all their briefs and proposed findings have failed to offer any logical reason for expanding the EPZ, the proper course is to affirm the Licensing Board.
I
In Catawba,20 NRC at 979-89, the EPZ boundary had evidently been drawn to exclude Charlotte, North Carolina. A contention was admitted that alleged that there was "a substantial resident population in the southwest part of Charlotte." The conten-tion also alleged that evacuees from the existing EPZ would use routes through Charlotte and that this indicated the need for evacuation planning for southwest Charlotte. The ASLB ultimately held that " expansion of the boundaries into southwest Charlotte is not warranted," 20 NRC at 989. But the contention was admitted.
Nevertheless, Catawba does not compel the conclusion that 22.C should be ad-mitted. The Catawba contention addressed a discrete population just beyond the EPZ; this was the same type of contention as 22.D in our case, which addressed three specif-ic areas and was admitted. By contrast, 22.C is a scattergun contention that argues that the EPZ should be expanded wherever there are people outside the boundary.
Moreover, the contention as admitted in Catawba appears to raise the same issues as Contentions 23.D and 23.H that were admitted in Shoreham.M As for Limerick,21 NRC at 1236, the admitted contention was that three specif-ic areas should be included in the EPZ, or that adequate plans for traffic control and di-rection should be made,"to avoid adverse effects on EPZ evacuation." 21 NRC at 1236.
Again, the contention is more like Shoreham Contentions 22.D,23.D and 23.H, which were admitted, than like 22.B and C, which were not.El The Limerick ASLB found that evacuation from the 10-mile EPZ would not be impeded by traffic congestion in the y The part of the Catawba contention about the flow of evacuees through Charlotte access routes, as f ar as one can tell, simply raises the issue of the effect on evacuation times from the EPZ of activities outside the EPZ. See 20 NRC at 988-89. As noted above, this issue was litigated in the Shoreham proceeding.
5/ The Licensing Board admitted the EPZ contention only "to the extent they call for planning against the effect traffic congestion in the areas outside the EPZ they 1
name could have on evacuation of the plume exposure pathway EPZ." 21 NRC at 1237.
I
o .
three areas and that therefore the EPZ need not be expanded. 21 NRC at 1268-69. The Board did provide for additional traffic control outside the EPZ, but it did not expand the EPZ.EI The Appeal Board affirmed, ALAB-836, 23 NRC 479, 493-96 (1986), and the In-tervenors make much of a footnote in the Appeal Board's decision to the effect that the ASLB should have allowed additional cross-examination. 23 NRC at 494 n.22. So far as one can tell, the excluded testimony dealt with the effect of congestion outside the EPZ on evacuation from the EPZ, a subject-that was fully explored in the Shoreham case. If the Appeal Board was condoning a contention like 22.B or 22.C, then it was just as wrong in Limerick as it was in ALAB-832.
g/ Like Limerick, in Indian Point the ASLB declined to adjust the EPZ based on an argument similar to the one being made by the Shoreham intervenors. In Indian Point several parties argued that the EPZ should be expanded because New York City was outside the 10-mile EPZ boundary:
The witnesses also testified that radiation doses will not stop at a 10-mile distance from the plant, . . . Although current emergency planning guidelines assume that ad hoc evacuation it adequate beyond the plume exposure pathway EPZ, the witnesses asserted that prepared plans for an evac-uation beyond 10 miles would reduce the necessary evacua-tion time . . . .
Consolidated Edison Co. of New York (Indian Point. Unit No. 2), LBP-83-68,18 NRC 811, 998-99 (1983), reviewed, CLI-85-6, 21 NRC 1043 (1985). Noting that New York State had accepted the existing 10-mile EPZ as appropriate,18 NRC at 1001, the ASLB concluded that the evidence failed to prove that the EPZ should be expanded. 18-NRC at 1003-05. Although the Board found that coordination with New York City officials would be helpful,it saw "no justification for . . . an expansion of the EPZ." 18 NRC at 1005.
O ,
)
C. The " shadow phenomenon" is not of'like kind with the " conditions" listed in 5 50.47(c)(2); rather, it is a totally new theory for establishing EPZ boundaries from scratch The Intervenors argue (Intervenors' Brief at 12-13) that the list of conditions in
> S 50.47(c)(2) (namely " demography, topography, land characteristics, access routes, and jurisdictional boundaries") is not exclusive. Even if this is true, any other " conditions" such as might be considered for fine-tuning the EPZ boundary would have to have two characteristics. First, they would have to be of like kind to the conditions listed in the
. regulation. (This follows, for example, from the canons of statutory constructi on ht at caution us against taking words out of context.k Second, they would have to be such as to justify minor modifications (what we have called " fine-tuning"), not a basic redrawing of the 10-mile EPZ from scratch. The " shadow phenomenon" cited by the In-tervenors as a local condition meets neither of these conditions. In particular, the In-tervenors essentially admit they are not concerned with minor adjustments in footnote 3 on page 14 of their brief.
Next the Intervenors argue (Intervenors' Brief at 13) that the phrase " local emer-gency response needs and capabilities"" clearly encompasses matters such as the LERO organization's failure to plan for, or be prepared to deal with, the emergency response needs created by voluntary evacuation, as well as the impact of voluntary evacuees i upon LILCO's ability to implement protective actions for persons within ten miles of F See W. Statsky, Legislative Analysis and Draf ting 88-91 (2d ed.1984). For exam-ple, the "ejusdem generis rule" is that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. The maxim is an illustration of the broader maxim "noscitur a soclis," which stands for the propo-sition that the meaning of a wcrd may be known from the accompanying words. Black's Law Dictionary (4th ed.).
l
o .
the plant . . . ." Intervenors' Brief at 13. The problem with this argument is that " local emergency response needs and capabilities" could mean just about anything about emer-gency planning and therefore is virtually meaningless unless applied with a conscious-ness of what the regulation means. What the words mean in context was discussed at great length in the litigation of Contention 22.D when LILCO pointed out, for example, that the EPZ boundary should coincide with easily recognizable landmarks, such as major highways. See PID,21 NRC at 701-07.
Finally, the Intervenors argue (Intervenors' Brief at 14 n.2) that the Brenner Board accepted their contentions in principle. The Brenner Board did indeed indicate that a " shadow phenomenon" contention might be admissible:
(O]ur ruling does not preclude a contention that because of the geography of Long Island, evacuation planning within an ,
approximate 10 mile EPZ may not be adequate because of the impacts of persons outside and to the east of the EPZ choos-ing to evacuate and having to do so by coming through the EPZ.
Memorandum and Order Confirming Rulings Made at the Conference of Parties . . . ,
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-19,15 NRC j 601, 618-19 (1982). As noted above, this issue was in f act admitted, in the form of Con-i
- tentions 23.D and 23.H. Thus, even assuming the Brenner Board's dictum were binding on the Commission,it would not call for admission of Contention 22.C.
III. LILCO's Emergency Plan for Hospitals Satisfies NRC Regulations A. The record shows that LILCO has planned extensively for hospital evacuation Intervenors take pains to stress that LILCO has no evacuation plans for hospi-tals.0/ But, as LILCO detailed in its earlier brief (at 16-18), the record shows H/ See, c_&, Intervenors' Brief at 15 ("LILCO's f ailure to plan for evacuation of hos-pital patients is total") and 21 (LILCO's Plan shows a " complete f ailure to plan at all for l the evacuation of hospital patients").
. . ._ - = _ . . . - - - _ - . - _ _ _ _ _ _ - . .-_ . . - .- -
otherwise.
i
! Intervenors complain that there are no evacuation time estimates for hospital j patients. Intervenors' Brief at 15.E While it is true that LILCO's Plan does not set
! forth estimates for each of the three hospitals, the Plan does show that it would take
! up to 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br />, 50 minutes to completely evacuate the Suffolk County Infirmary.
Costiaro e_t W., ff. Tr. 9101 at 10, Att. 2. The Licensing Board, recognizing the similari-f-
ty of the Infirmary to the other hospitals, found that " evacuation of the hospitals could well take similar amounts of time." PID,21 NRC at 845. The Board found this time pe-
}
- riod justifiable "considering the severity of the accident that would have to occur and f
i the location of the hospitals." Id. at 846. So it just is not true that evacuation time es-i
) timates for hospitals do not exist.
! Intervenors next complain that " vehicles necessary to perform such an evacua-I tion have not been identified." Intervenors' Brief at 15. This assertion is misleading at l best. While it is true that LILCO has not pre-assigned ambulance X to hospital Y and so l forth, the Plan clearly specifies where the vehicles will come from and how they will l De dispatched to hospitals. See Cordaro ej al., (f. 9101 at 11-13; LILCO Plan, App. A at i
! IV-172 and -173. The Licensing Board found that:
If evacuation of hospitals became necessary, LILCO would use f
j the ambulances and ambulettes it has under contract to trans-port patients. These vehicles would be used first to evacuate other special facilities and the handicapped at home. Vehl-
- cles would be* redirected to hospitals as they became available
- af ter completing the evacuation of special facilities.
f PID, 21 NRC at 844. No one, and least of all the Licensing Board, is confused as to l
what vehicles would be used to evacuate the hospitals.E
! There are about 630 patients in the three hospitals. The Suffolk Infirmary, i 2/
j which is located right at the edge of the 10-mile EPZ, houses approximately 200 rest-I dents. Cordaro e_1 al., f f. Tr. 9154, Vol. !!, at 17-18; Plan, App. A at IV-175.
l 10/ LILCO has agreements with ambulance companies for a total of 63 ambulances and 130 ambulettes that would be available during an evacuation. Cordaro et al., ff. Tr.
j ,
(footnote continued) l
l.
I f i
Finally, Intervenors claim that "there are no preplanned routes or procedures for r
accomplishing such an evacuation." Intervenors' Brief at 15. As for " preplanned routes" this claim is frivolous; as for " procedures" it is f alse.
It is not at all clear why Intervenors believe that preplanned evacuation routes for the three hospitals are necessary. Indeed, Intervenors do not say why such routes are necessary; nor do they cite any regulation that requires them. Two of the hospitals are located right at the 10-mile boundary and the third lies a quarter mile outside.
Since the whole point of evacuation is to get people outside the 10-mile zone, and that objective is achieved almost as soon as the ambulances leave the hospitals, it is diffi-cult to imagine why professional ambulance and ambulette drivers need pre planned routes to drive the short distance from the two hospitals (in the EPZ) to beyond the 10-mile zone.E If on the other hand the Intervenors are claiming that preplanned routes outside the EPZ are required, they are wrong; there is no such regulation, and the claim is merely another attempt to expand the EPZ.
! (footnote continued) i 6457, Vol. II, at 7-10. The Licensing Board found that this number of vehicles would be sufficient to evacuate all three hospitals with one additional run per vehicle beyond that required to evacuate the nursing and adult homes. PID,21 NRC at 829. In addi-l tion, there are 61 ambulances halonging to towns and volunteer fire districts within 20 miles of Shoreham that could be called upon in an emergency. Id. LILCO chose not to rely on these additional ambulances, however, because it already had a sufficient num-r ber of private ambulances'under contract for emergency purposes. M.
11/ Intervenors also complain that "there is no identified place to which evacuees would be taken." Intervenors' Brief at 15. To the contrary, LILCO's Plan lists 11 hospi-tals in Suffolk County and 15 hospitals in Nassau County to which hospital evacuees j could be taken. Plan, OPIP 3.6.5 Att. 5. It is true that LILCO does not have letters of agreement with potential receiving hospitals committing them in advance to accept specified numbers of evacuees. Hospital officials refuse to enter into such agreements.
Because of all the variables associated with hospital populations (including those noted in LILCO's Brief at 18 n. 23), hospital officials can only assess their ability to accept additional patients at the time of an emergency. Cordaro et al., ff. Tr. 9154, Vol. II, at
- 15. But experience shows that reception hospitals will be found for all hospital evacuees. M. (Yedvab).
_ _ _ _ _ _ _ _ - - - _ - -. - = -
i .
Moreover, the Plan specifies the procedures that LILCO will use to evaccate hospitals. The Licensing Board found that
[I]f an evacuation were required, LILCO's plans specify that the health facilities coordinator will contact hospitals to de-termine transportation needs. Hospital needs would be re-layed to the transportation support coordinators and the am-bulance coordinator who would direct vehicles to each hospital.
PID, 21 NRC at 845. Vehicles would be redirected to hospitals af ter they complete i
their first runs for nursing or adult homes, as described above. Relocation centers will be found and patients assigned to them as described in LILCO's testimony. See Cordaro et al., ff. Tr. 9154, Vol. II, at 14-17.
Clearly, LILCO has developed plans to evacuate hospital patients in the rare event evacuation is recommended. These plans might in theory be more detailed with regard to pre-assignment of vehicles, but they are as detailed as possible (and practical) considering all the unknowns concerning hospital populations. Intervenors' repeated charge that LILCO has no evacuation plans for hospitals is without basis in fact and is rebutted by the record in this case.
B. NRC regulations do not " explicitly" require evacuation plans for hospitals Intervenors boldly assert that NRC regulations are " explicit" in requiring evacu-ation plans. Intervenors' Brief at 16. As support for this proposition they cite 10 C.F.R. S 50.47(b)(10), which requires that "A range of protective actions have been developed for the plume exposure pathway EPZ for emergency workers and the public."
LILCO submits that the regulations, including 5 50.47(b)(10), could hardly be less explic-it in prescribing the appropriate protective actions.N 12/ The dictionary says that " explicit" means (1) free from all vagueness and ambigu-ity; (2) unreserved and unambiguous in expression; and (3) externally visible. Synonyms
- for "vxplicit" share this common meaning element: " perfectly clear and unambiguous."
Webster's New Collegiate Dictionary at 404 (1977 ed.).
1 y - _ ___
i i
i LILCO has already demonstrated that the NRC regulations do not prescribe spe-cific means that an applicant must employ to satisfy the 5 50.47(a) reasonable assur-ance standard, and that the regulations were never intended to prescribe such means.
See LILCO's Brief at 18-22. LILCO also cited case law demonstrating that the regula-tions must be applied with the flexibility intended for them. Id. at 20 and n. 26. These
+ principles are apparent from the plain language of the regulations and are well-grounded in precedent; no new support is necessary to refute Intervenors' argument.E/
Intervenors next assert that NUREG-0654 is even more explicit in requiring pre-existing hospital plans for hospitals in the EPZ. Intervenors' Brief at 17. This argu-ment is unpersuasive for two reasons. First, NUREG-0654 does not require anything.
The criteria described in NUREG-0654 were intended to serve solely as regulatory guid-ance, not regulatory requirements. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-22,17 NRC 608 (1983). In the absence of other evidence, adherence to NUREG-0654 may be sufficient to demonstrate compliance with the regulatory requirements of 10 C.F.R.
S 50.47(b). However, such adherence is not required, because regulatory guides are not intended to serve as substitutes for j regulations.
W.,17 NRC at 616. Therefore, compliance with NUREG-0654 is not required, and "it is inappropriate to rely on NUREG-0654 to determine the essential requirements of the regulations." M. at 617, see also Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), ALAB-698,16 NRC 1290 (1982).
Second, as LILCO demonstrated in its earlier brief. NUREG-0654 is as non-explicit as the regulations in regard to what protective measures are required.
13/ Intervenors cite the Zimmer case, apparently for the proposition that NRC regu-lations require evacuation plans. See Intervenors' Brief at 20. That case was con-cerned with and only applies to school plans, despite Intervenors' parenthetical attempt ,
to link the case to Appendix 4 of NUREG-0654, which mentions special facilities.
- - - - , - . , _ . . - , _ , . , , , - , - , , , _ _ _ . _ . _ _ , _ _ _ - , - _ _ , . , _ . , , _.- , _ _____a , , . , . _ ,., . _ , . _ , , _ _ _,,._..,.,,,,-.---_.-p, , , . _ . _ - - , -
O .
NUREG-0654 suggests only that plans contain a "means for protecting" mobility-impaired persons (S II.J.10.d),N a means of relocation, (S II.J.10.g), evacuation time t
estimates (S II.J.10.1), and " bases for the choice of recommended protective actions" (S II.J.10.m). LILCO's Plan provides all of these elements.
One aspect of the regulations is explicit. Section 50.47(b)(10) requires that
"[g]uldelines for the choice of protective actions during an emergency, consistent with Federal guidance, are developed and in place." As Intervenors correctly note (on p.16 n.5), " Federal guidance" refers to the EPA Protective Action Guides. Those Guides ex-pressly acknowledge the need in certain circumstances to apply different criterik in es-tablishing the appropriate protective action for special groups, including bedridden and critically ill patients. Cordaro et al., Tr. of May 10, 1984, Vol. II, at 25 and Att. 68.
Thus, the regulations and guidance " explicitly" allow different treatment for different groups such as hospital patients.
C. Even if more specific hospital evacuation plans are ordinarily required, their absence in this case is not significant under 10 C.F.R. S 50.47(c)(1)
Intervenors state at p. 21 that "It cannot be suggested that . . . the complete
- 1_4/ Section II.J.10.d is perhaps most applicable. That section states that emergency plans should include "[m]eans for protecting those persons whose mobility may be im-paired due to such factors as institutional or other confinement." Even this provision, however, "does not specify a single method for protecting mobility-impaired individuals because, in many cases, sheltering may be a better protective action than evacuation."
Consolidated Edison Co. of New York (Indian Point, Unit No. 2), LBP-83-68,18 NRC 811, 993 (1983). Moreover, In evaluating the adequacy of local emergency re-sponse plans, it must be recognised that evacuation is only one means for providing protection for mobility-impaired persons. Sheltering is another option and may, depending on circumstances, be preferable.
Id. at 995.
. . . . - _ _ _ . _ _ _ . _ = __ __ - _ - - __. _ __ _ _
failure to plan at all for the evacuation of hospitals patients is 'not significant."' Per-haps it could not. But LILCO has never made that suggestion. LILCO suggests merely that, for the reasons listed in its earlier brief (at pp. 22-23), hospitals should be treated differently from other special facilities. Accordingly, LILCO's reasoned decision to provide a less detailed and less rigid evacuation plan for hospitals is not only sensible but is also the most practical and efficient step under the circumstances. Therefore, the absence of additional details in the hospital plan (which the Appeal Board would categorically require in order that hospitals have " precisely the same emergency plan-ning" as other special facilities) is not significant for Shoreham under 10 C.F.R.
S 50.47(c)(1).
IV. Conclusion For the reasons stated above and in LILCO's October 9 brief, LILCO requests that the Commission reverse the Appeal Board's determinations that (1) Contentions 22.B and 22.C were impermissibly excluded for litigation and (2) more detailed evacua-tion plans for the hospitals on the edge of the EPZ are required by NRC regulations.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY
~
By . 8 Jameis N. Christm'!in Scott D. Matchett Hunton & Williams P.O. Box 1535 Richmond, VA 23212 DATED: October 16,1986
- ~
LILCO, October 16,1986 ,
.k /
TNN 4 4 CERTIFICATE OF SERVICE OCT 17 sp 3
'Eh In the Matter of c, sec n a(e?;$v n ,-
LONG ISLAND LIGHTING COMPANY
<D
, (Shoreham Nuclear Power Station, Unit 1) A g Docket No. 50-322-OL-3 I hereby certify that copies of LILCO's Answer to Brief of Suffolk County et al.
on Three ALAB-832 Issues to be Reviewed by Commission were served this date upon the following by Federal Express as indicated by an asterisk, or by first-class mail, post-age prepaid.
Lando W. Zech, Jr., Chairman
- Alan S. Rosenthal, Esq.,' Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing 1717 H Street, N.W. Appeal Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Fif th Floor (North Tower)
Commissioner Thomas M. Roberts
- East-West Towers U.S. Nuclear Regulatory Commission 4350 East-West Highway 1717 H Street, N.W. Bethesda, MD 20814 Washington, DC 20555 Gary J. Edles, Esq.
Commissioner James K. Asselstine
- Atomic Safety and Licensing ,
U.S. Nuclear Regulatory Commission Appeal Board 1717 H Street, N.W. U.S. Nuclear Regulatory Commission Washington, DC 20555 Fif th Floor (North Tower)
East-West Towers i Commissioner Frederick M. Bernthal
- 4350 East-West Highway U.S. Nuclear Regulatory Commission Bethesda, MD 20814 1717 H Street, N.W.
- Washington, DC 20555 Dr. Howard A. Wilber l Atomic Safety and Licensing i Commissioner Kenneth M. Carr
- Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 1717 H Street, N.W. Fif th Floor (North Tower)
Washington, DC 20555 East-West Towers 4350 East-West Highway William C. Parler, Esq. Bethesda, MD 20814 General Counsel U.S. Nuclear Regulatory Commission John H. Frye, III, Chairman 1717 H Street, N.W. Atomic Safety and Licensing Washington, DC 20555 Board U.S. Nuclear Regulatory Commission East-West Towers, Rm. 407 4350 East-West Hwy.
Bethesda, MD 20814 l
~ -_ , - . . - - . . - .__-._._. .. - .- . . . , . . _ . _ _ _ . _ - - _ . . - _ _ _ - _ _ - .._ . - .
s -
Dr. Oscar H. Paris Bernard M. Bordenick, Esq.
- Atomic Safety and Licensing Oreste Russ Pirfo, Esq.
Board Edwin J. Reis, Esq.
U.S. Nuclear Regulatory Commission U.S. Nue? ear Regulatory Commission East-West Towers, Rm. 427 7735 Old Georgetown Road 4350 East-West Hwy. (to mallroom)
Bethesda, MD. 20814 Bethesda, MD 20814 Mr. Frederick J. Shon Lawrence Coe Lanpher, Esq.
- Atomic Safety and Licensing Karla J. Letsche, Esq.
Board Kirkpatrick & Lockhart U.S. Nuclear Regulatory Commission Eighth Floor East-West Towers, Rm. 430 1900 M Street, N.W.
4350 East-West Hwy. Washington, DC 20036 Betheso, MD 20814 Fabian G. Palomino, Esq.
- Morton B. Margulies, Chairman Special Counsel to the Governor Atomic Safety and Licensing Executive Chamber Board Room 229 State Capitol U.S. Nuclear Regulatory Commission East-West Towers, Rm. 427 Albany, New York 12224 4350 East-West Hwy.
Bethesda, MD 20814 Mary Gundrum, Esq.
Assistant Attorney General Dr. Jerry R. Kline 2 World Trade Center Atomic Safety and Licensing Room 4614 Board New York, New York 10047 U.S. Nuclear Regulatory Commission East-West Towers, Rm. 430 Spence W. Perry, Esq.
- 4350 East-West Hwy. William E. Cumming, Esq.
Bethesda, MD 20814 Federal Emergency Management Agency Secretary of the Commission 500 C Street, S.W., Room 840 Attention Docketing and Service Washington, DC 20472 Section U.S. Nuclear Regulatory Commission Mr. Philip McIntire 1717 H Street, N.W. Federal Emergency Management Washington, DC 20555 Agency 26 Federal Plaza Atomic Safety and Licensing New York, New York 10278 Appeal Board Panel ,
U.S. Nuclear Regulatory Commission Mr. Jay Dunkleberger Washington, DC 20555 New York State Energy Office Agency Building 2 Atomic Safety and Licensing Empire State Plaza Board Panel Albany, New York 12223 U.S. Nuclear Regulatory Commission Washington, DC 20555 Stephen B. Latham, Esq.
- Twomey, Latham & Shea
, 33 West Second Street 4 P.O. Box 298 l Riverhead, New York 11901
i *, -
Jonathan D. Feinberg, Esq. Martin Bradley Ashare, Esq.
- New York State Department of Eugene R. Kelly, Esq.
Public Service, Staff Counsel Suffolk County Attorney Three Rockefeller Plaza H. Lee Dennison Building Albany, New York 12223 Veterans Memorial Highway Hauppauge, New York 11787 Ms. Nora Bredes Executive Coordinator Dr. Monroe Schneider Shoreham Opponents' Coalition North Shore Committee 195 East Main Street P.O. Box 231 Smithtown, New York 11787 Wading River, NY 11792 Gerald C. Crotty, Esq.
Counsel to the Governor Executive Chamber State Capitol Albany, New York 12224
- h. ~974 Sco t D. Matchett Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 16,1986 l
_,