ML20211G712
| ML20211G712 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 10/27/1986 |
| From: | Latham S, Letsche K, Palomino F NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1317 OL-5, NUDOCS 8611040113 | |
| Download: ML20211G712 (35) | |
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)3/7 DGtKETED USNHC October 27, 1986
\ 16 m:I 30 P2:53 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION gypq y g ,
00CKEimu s M 4viti' Before the Atomic Safety and Licensinc Board SRANCH e i In e Matter of )
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LONG SLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shore am Nuclear Power Station, )
Unit 1) )
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I SUFFOLK COUNTY, STATE OF NE.e YORK, AND TOWN OF l SOUTHAMPTON OBJECTIONS TO PREHEARING CONFERENCE ORDER
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On October 3, 1986, this Board issued its Prehearing Con-ference Order (Ruling on Contentions and Establishi-ng Discovery
. Schedule) (hereafter, the " Order"). In accordance with 10 CFR i
S 2.751a(d) and the schedule subsequently adopted by the Board in
! response to the Staff's motion,1 Suffolk County, the State of New York, and the Town of..Sout.hampton (" Governments") file objections
, to certain of the rulings contained in the Board's Order.2 1 Egg NRC Staff Motion for Extension of Time Within Which to File Objections to Prehearing Conference Order, October 15, 1986; ASLB Order, October 16, 1986.
2 The Governments do not object in this filing to each error i
made by the Board in the October 3 Order but, rather, limit their objections to those errors that appear at this time to have the potential for the greatest adverse impact on this proceeding. On issues where the Board ruled adversely to the Governments' posi-i tion but no objection is interposed, the Governments do not thereby acquiesce in the Board's ruling and may pursue the matter l 8611040113 861027 l PDR ADOCK 05000322 G PDR
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s I. Overview The Governments make two general comments about the Board's Order before addressing the Board's rulings on specific conten-tions. First, the Governments disagree with the Board's reliance upon the so-called " fundamental flaw" criterion which the Board i
adopted (agg Order at 2) and the Board's related holding that it was permissible, at the contention admissibility stage, to reject contentions which the Board found to constitute " minor or readily
" The Governments' po-correctable problems . . . . Order at 4.
sition on these matters has been brought to the Board's attention previously and thus the bases for our objection are not repeated herein.3 Second, in many instances, the Licensing Board denied separate admission to a particular contention or a particular subpart of a contention with the additional comment that the bases and facts alleged in the " denied" contention or contention subpart will be permitted to be litigated in connection with some other admitted contention. It is the Governments' understanding that in these instances the Board, in essence, restructured the contentions into a format which it deems more efficient for the on appeal at a later time should the need arise.
3 Egg, e.q,, Response of Suffolk County, State of New York, and Town of Southampton to the LILCO and NRC Staff Objections to the Emergency Planning Contentions Relating to the February 13 Exercise, August 25, 1986 (hereafter, " August 25 Response"), at 22-23; Response of Suffolk County, the State of New York, and the Town of Southampton to LILCO's Motion for Establishment of Licensing Board and Institution of Expedited Procedures for Exercise Litigation, March 24, 1986, at 13-15, 20-22. 1 1
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presentation of evidence and proof, but that it did not deny the Governments the opportunity to present evidence on the substance of the allegations contained in those " denied" contentions or subparts. Based upon such understanding, the Governments do not file objections to the Board's rulings on the following contentions or contention subparts, because the Board made clear that the litigation of other contentions would be construed to include the allegations and bases set forth in the " denied,"
contentions:
Contention Into Which " Denied"
" Denied" Contention Contention Is Incoroorated Ex 15.L Ex 21 & 32 (Order at 11)
Ex 18.A, 18.C Ex 15 & 16 (Order at 12-13)
Ex 20 Ex 15 & 16 (Order at 13)
Ex 22.F Ex 38 & 39 (Order at 14)
Ex 22.I Ex 41 (Order at 14)
Ex 21 (Order at 15)
Ex 22.K Ex 23 Ex 50.C (Order at 15)
Ex 24 x Ex 15.A (Order at 15)
Ex 25 Ex 41.B (Order at 16)
Ex 26 Ex 15.F & G (Order at 16)
Ex 27 Ex 50.H'(Order at 16)
Ex 28 Ex 50.H (Order at 16)
Ex 29 Ex 41.B (Order at 17)
Ex 30 15.G (Order at 17)
Ex 31 Ex 49.A (OEder at 17)
Ex 32 Ex 21 (Order at 17)
Ex 37 Ex 15.I (Order at 20)
Ex 42 Ex 38, 39,-41, 50 (Order at 23-24)
Ex 44 (first sentence) Ex 38 & 39 (Order at 26)
Ex 45 Ex 50 (Order at 27)
Ex 46 Ex 22.A (Order at 27) s 8
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-6 II. Obiections to Specific Contentions A. Contentions Ex l-7 The Board rejected Contentions Ex l-7 on the basis that "they allege matters that have.already been litigated and were not raised by the exercise. The contentions thus do not meet the criteria for admittance." Order at 9-10. The Governments object to this ruling.
The Board fundamentally misconstrued Contentions Ex l-7. In those Contentions, the Governments do not attempt to litigate matters which have already been litigated. LILCO's lack of legal authority is taken as a civen. What is alleged is that the exercise, as conducted, demonstrated a fundamental flaw in the LILCO Plan: that the Plan, as exercised, required LILCO to carry out essential elements of its Plan with its own resources; that it is a given that LILCO lacks legal authority to carry out those functions; and thus that the exercise revealed that LILCO's lack of legal authority to perform such functions constitutes a crucial flaw in the Plan.4 Contentions Ex l-7 are admissible for a related reason.
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4 The February 13 exercise demonstrated that LILCO could implement its
- Plan only if LILCO performed illegal acts. Since nobody can suggest the licensing of Shoreham based on LILCO's performance of illegal acts, the exercise demonstrated the fundamental flaw of LILCO's lack of legal authority to, implement its Plan. The foregoing points were set forth in detail in the Governments' August 25 Response (at pages 59-61) and will not be repeated further herein.
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O The purpose of this proceeding is to determine what the exercise results were and whether those results preclude a reasonable assurance finding. Ege CLI-86-ll, 23 NRC 577, 581 (1986). The exercise, as conducted on February 13, required LILCO to perform numerous governmental functions which LILCO cannot perform in an actual emergency. It was clear from the exercise, however, and it is set forth in detail in Contentions Ex l-7, that LILCO must perform those roles if it is to implement its Plan as exercised. Thus, the Plan, as exercised, was demonstrated to be fundamentally flawed.5 In sum, Contentions Ex l-7 " identify the impact of the limi-tations of LILCO's Plan when executed under state and county re-strictions." LILCO has acknowledged that most of the challenged 1
activities are required to meet NRC regulations. Contentions Ex l-7 merely seek a ruling that the exercise results demonstrate 5 The Commission clearly invited contentions such as Ex l-7.
The Commission's initial approval of the exercise was based on its belief that the exercise "could, as a minimum, identify the impact of the limitations of LILCO's Plan when executed under state and county restrictions." Memorandum from Samuel J. Chilk, NRC, to William J. Dircks, Executive Director for Operations, NRC, dated June 4, 1986. Similarly, acknowledging the legal limitations on LILCO's authority to implement its Plan in the event of an actual emergency, the Commission stated that the Shoreham " exercise will assist us in determining whether any defects that exist as a result of 'the limitations of LILCO's Plan when executed under state and local restrictions' are significant under our regulations." Lono Island Lichtino l Comoany (Shoreham Nuclear Power Station, Unit 1), Commission i Memorandum and Order (January 30, 1985), at 4 (citation omitted). i Thus, on two separate occasions, the. Commission has stated its desire to use the exercise to provide'information concerning'the impact of the legal authority issue upon the adequacy of LILCO's Plan, and has ruled with unmistakable clarity that the impact of-the legal authority issues upon Plan adequacy is an appropriate subject for the exercise litigation.
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O that under the LILCO Plan, as exercised, these required activities would be performed by LILCO and, given the extant
! legal authority rulings, LILCO's inability to carry out those i functions creates a series of gaping holes -- i.e., fundamental l
flaws -- in the Plan.
Finally, at the Prehearing Conference on September 24, LILCO l argued that the February 13 exercise constituted the " full parti-
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j cipation" exercise called for by the NRC's regulations. If that
! is the case, then Contentions Ex l-7 are clearly admissible be-cause they demonstrate that LILCO's Plan, as exercised, cannot be i
implemented and thus cannot provide the basis for a reasonable assurance finding. Accordingly, Contentions Ex 1-7 should be admitted.
! B. Contentions Ex 8-14 The Board's rejection of Contentions Ex 8-14, similar to its rejection of Contentions Ex l-7, reflects a fundamental misunder-standing of the contentions. For instance, the Board indicated its belief that these contentions, as related to the " realism"
- argument, are matters which should be given cognizance in a
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separateproceedingp$rsuant'totheCLI-86-13 remand. Egg Order at 11. That is incorrect, since the " realism" remand proceeding will have nothing to do with_the February.13 exercise. That exercise and all matters relating to it are to be dealt with in this exercise proceedi'ng.
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i The question before the Board in Contentions Ex 8-14 is whether the results of the February 13 exercise are consistent with LILCO's realism argument such that they could provide a basis for a reasonable assurance finding. The answer is clear:
the February 13 exercise results are not consistent with LILCO's realism argument and cannot provide a basis for such a finding. i LILCO's realism argument, in its latest version, relies upon State and local government-officials to participate actively in emergency response. However, as alleged in Contentions Ex 8-14, 1
the exercise was conducted in a manner which was totally incon-sistent with LILCO's realism argument. Contrary to the premise of LILCO's realism argument, there was no active involvement of State and local government officials, whether in reality or in simulation, during the exercise. Thus, the exercise provides no basis for a reasonable assurance finding, assuming, for the sake of argument, that the realism argument could provide a basis for licensing action on Shoreham.
Accordingly, Contentions Ex 8-14 clearly are admissible.
The "results" of the exercise demonstrate no basis for a. reason-able assurance finding based upon the realism argument. This is not a matter that properly may be deferred until the later CLI-86-13 remand proceeding -- as noted above, that proceeding has nothing to do with the exercise. The purpose of this proceeding is to determine whether the February 13 exercise provides a basis for a reasonable assurance finding. As alleged in Contentions
Ex 8-14, it does not, to the extent that the. realism argument is relied upon as a basis for licensing. Such contentions are clearly admissible.
Finally, the Board in its ruling on Contentions Ex 8-14 stated that it is already known that the. State and local govern-ments refused to participate in an exercise with LILCO, and thus that no new material facts arose from the exercise that would have any important bearing on this case. geg Order at 10-11.
The Governments disagree. Among the material facts which " arose" from the February 13 exercise is the one stated in Contentions Ex 8-14: that the exercise was inconsistent with LILCO's realism argument. That inconsistency is clearly material in this exer-cise portion of the licensing proceeding, because if the exercise varies in a fundamental manner from the basis assumed for li-censing, then there has been no full participation exercise as required by the regulations, and clearly there can be no reason-able assurance finding.
C. Contention Ex 15 The Board admitted all of Contention Ex 15 except for subpart J. The Governments object to the Board's' rejection of subpart J.
The Board rejected subpart J on the basis of its August 21, 1985 ruling rejecting a contention filed in February 1985 concerning LILCO's lack of preparedness for off-site contaminated injured individuals. Egg Order at 11. The Board's ruling on subpart J of Contention Ex 15 is wrong for two reasons.
First, the Board's ruling amounts to a refusal to comply with the NRC regulations which it is bound to enforce. 10 CFR S 50.47(b)(12) requires that arrangements be made for medical services for contaminated injured individuals. This Board has refused and, in its October 3 Order refused again, to admit any contention that touches on that planning standard. The Board is in clear violation of the holding of the United States Court of Appeals for the District of Columbia Circuit in Guard v. NRC, 753 F.2d 1144 (D.C. Cir. 1985). The issuance of an NRC policy state-ment such as that referenced in the Board's ruling (Order at 11) does not change the fact that there exists a regulatory require-ment which continues to be a valid part of the NRC's regulations.
The NRC has no choice but to comply with, and to enforce, that regulatory requirement.
Second, subpart J of Contention Ex 15 is admissible because its allegations are completely different from those set forth in the earlier contention submitted by the Governments and rejected by the Board in August 1985. That earlier contention alleged that the LILCO Plan failed to comply with Section 50.47(b)(12) because the Plan, as written, did not include procedures or arrangements relating to the provision of medical services for 1
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off-site contaminated injured' individuals. Subpart J of Conten-tion Ex 15, however, raises a different issue: the results of the exercise failed to provide a basis for a finding that ade-quate protective measures can and will be. implemented in the event of a Shoreham accident, because during the exercise, there was no demonstration whatsoever of LILCO's capability to make or implement necessary arrangements and procedures for treatment of off-site contaminated injured persons. This " implementation" issue is entirely different from the'" Plan-as-written" issue raised by the earlier contention.
The LILCO Plan purports to fulfill the requirements of Sec-tion 50.47(b)(12) by listing facilities outside the EPZ to be relied upon for medical services for contaminated injured members of the public. Notwithstanding such provisions of the LILCO 2
Plan, the exercise on February 13 failed to include any demon-stration that necessary medical facilities, services, and trained personnel in fact would be available in the event of-an emergen-cy, or that they possess the necessary capabilities to perform the functions, assumed to be available, in the LILCO Plan. The key point is that LILCO's Plan itself purports to address the needs of contaminated injured individuals (albeit,-in the Govern-ments' view, in a wholly inadequate manner, for the reasons al-leged in the contention rejected by the Board.in August, 1985).
The results of the exercise provide no basis for a finding.that 1
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the LILCO proposals, designed to comply with Section 50.47(b)(12), can or will be implemented. That is a perfectly appropriate, and admissible, issue in this exercise proceeding.
The Board's October 3 ruling, in essence, held that portions of LILCO's Plan are sacrosanct -- they cannot be challenged.
This holding violates Union of Concerned Scientists v.
NRC, 735 F.2d 1437 (D.C. Cir. 1984), cert. denied, 105 S.Ct. 815 (1985),
which guarantees the right to a hearing on all material issues of fact. This Board has recognized that it is material whether sufficient portions of LILCO's Plan were exercised to render the exercise a meaningful one. Egg Order at 5-9, 13. Subpart J of Contention Ex 15 identifies significant portions of LILCO's Plan-which were not exercised, and explains why the failure to demonstrate the implementability of such portions is significant, as further support for Contention Ex 15 and the allegation that a
" full participation" exercise did not occur on February 13. The Governments respectfully submit that the Board had no rational basis for rejection of subpart J.
D. Contention Ex 16 The Board admitte'd al'1 of Contention Ex 16, except for sub-part M.6 The Board relied upon its rulings on Contentions Ex 8-6 The Board stated that, except for subparts E, L, and K (and subpart M, which'it rejected), it viewed the other bases of Con-tention Ex 16 as being covered by and thus subsumed by Contention Ex 15. The Governments understand that the factual allegations set forth in those bases of Contention Ex 16 which are subsumed within Contention Ex 15 are subjects upon which testimony proper-ly may be submitted.
14 for rejection of subpart M. For reasons already discussed in Section II.B above, those prior rulings are erroneous. Further, i
however, subpart M of Contention Ex 16 bears no relation to the
" realism" contentions and thus reliance upon the rulings on Con-tentions Ex 8-14 is misplaced, even assuming arcuendo that the Ex 8-14 ruling was correct.
Subpart M of Contention Ex 16 points out that the LILCO Plan relies upon local governments to perform-specified actions in the event of an emergency.7 During the February 13 exercise, the local governments did not perform any of these services and thus the exercise failed to demonstrate the implementability of key elements of the LILCO Plan. Even assuming arg.ugndo that the rationale for excluding Contentions Ex 8-14 were valid, that rationale would only apply to Suffolk County and the State of New York; subpart M of Contention Ex 16, however, refers to several other entities, such as towns and Nassau County.
Furthermore, consistent with other bases in Contention Ex 16, the omission of local government participation is an additional reason that the exercise was so limited that it did not constitute the full participation exercise required by the regulations. This Board specifically stated at page 7 of its Order that the full participation exercise requirement consti-tutes a regulatory standard that must be met. Its ruling with 7 As set forth in subpart M, specific local government-ser-vices which are mentioned in the LILCO Plan include local law 4 enforcement, emergency fire and rescue services, snow removal, l traffic control on roads around the Nassau Coliseum, and traffic control, parking supervision, and security at the Nassau Coliseum.
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respect to subpart M of Contention Ex 16 is inconsistent with its prior statement and is inconsistent with UCS v. NRC, since it bars the Governments from an opportunity to contest a material issue of fact, or to demonstrate that the lack of local govern-ment participation to implement specified elements of LILCO's Plan constitutes an additional reason that the February 13 exer-cise did not meet Appendix E requirements.
E. Contention Ex 18 The Governments do not perceive a need to object to the rejection of subpart A of Contention Ex 18 because the Board construed subpart A as a clarification of matters admitted in 1 Contentions Ex 15 and 16. The Governments construe this ruling, therefore, to be a recognition by the Board that the regulatory bases of Contention Ex 18, particularly the full participation exercise requirement of 10 CFR Part 50, Appendix E, S IV.F.1, are also construed to be part of Contentions Ex 15 and 16.
Similarly, given the Board's ruling relating to subpart C, it is the Governments' understanding that the Board, in effect, admitted that subpart, albeit as part of Contentions Ex 15 and
- 16. The Governments have no objection to that ruling, provided, however, that the regulatory citations in the preamble of Con-tention Ex 18 are similarly admitted or construed to be admitted as part of Contentions Ex 15 and 16.
The Governments do object, however, to the Board's rejection of subpart B of Contention Ex 18. Appendix E,Section IV.F.1, is explicit in its requirement that a full participation exercise "shall include participation by each State and local government within the plume exposure pathway EPZ and each State within the ingestion exposure pathway EPZ." (Emphasis added). The exercise on February 13 did not include participation by Suffolk County, 4
the State of New York, or the State of Connecticut. This consti-tutes a clear violation of Appendix E. LILCO has sought no ex-emption from that Appendix E requirement. There is no basis for the Board to reject the allegation made in subpart B of Conten-tion Ex 18, particularly in view of its ruling (Order at 7) that the Appendix E full participation exercise requirement consti-tutes a regulatory requirement that must be satisfied.
F. Contention Ex 22 The Licensing Board rejected subparts B, C, D, E, G, and H
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of Contention Ex 22 which, respectively, concern school pro-cedures, school bus drivers, relocation centers for school children, relocation centers for special facility evacuees, hospital evacuation, and availability of buses for evacuation of the transit-dependent population. The Board's basis for the rejection of these subparts was that none of the matters arose during the exercise. See Order at 14. Nonetheless, the Board made clear that these subparts, to the extent that they concern the lack of testing of critical parts of the LILCO Plan, are covered by other contentions (presumably Contentions Ex 15 and
- 16) and thus are admitted to that extent.
The Governments object to the rejection of these cubparts.
The Board's basis for rejecting them -- that they do not concern matters which " arose during the exercise" -- appears to be based on a misreading or misunderstanding of Contention Ex 22 and these subparts.
FEMA reached conclusions on the satisfaction of exercise objectives, purportedly based upon "results of the exercise,"
relating to each of the matters identified in subparts B, C, D, E, G, and H. Under UCS v. NRC, the Governments must be permitted to contest FEMA's bases for those conclusions. In denying admission of these subparts of Contention 22, however, the Board ruled, in essence, that with respect to the objectives identified in those subparts, the Governments may not contest FEMA's bases.
This constitutes error.
For reasons specified in the Contention Ex 22 subparts de-nied admission, the Governments allege that FEMA lacked adequate bases for its conclusions. One reason for the alleged lack of bases for FEMA's conclusions -- as recognized by the Board -- was the fact that there was inadequate testing of LILCO's Plan on February 13. However, the lack of bases extends further -- as alleged in Contention Ex 22 -- to the fact that FEMA's findings are premised on false assumptions. Specific bases, and examples, 1
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O of such flawed premises for FEMA's conclusions are identified in ;
the subparts of Contention Ex 22, including the subparts excluded by the Board.
The Board provided no reasoned basis for rejection of sub-parts B, C, D, E, G, and H, particularly in light of its admis-sion of other subparts which, in every material respect except subject matter, are identical. As set forth in the Governments' August 25 Response (at pages 176-81 and 183-84), each of the.
rejected subparts alleges that there was inadequate basis for FEMA's conclusion that specific exercise objectives were satis-fied.
FEMA's conclusions, as set forth in its post-exercise evaluation, are proper subjects of litigation. See UCS v. NRC.
They have been asserted by FEMA and constitute rebuttable presumptions in this proceeding. By its ruling rejecting subparts B, C, D, E, G, and H of Contention Ex 22, this Board, in essence, stated that these particular FEMA exercise objective conclusions are not subject to challenge. There is no basis to sustain such a ruling. It must be reconsidered and reversed.
Finally, the Board rejected subpart K cf Contention Ex 22 to the extent that it contested the availability of congregate care centers. Rgg Order ~at 15. In the Governments' view, subpart K constitutes a proper basis for Contention Ex 22 which should have been accepted. However, in view of the fact that subpart K has been admitted in part under Contention Ex 21, a. separate objection is not interposed at this time.
G. Contention Ex 33 The Board rejected Contention Ex 33 because, in its view, the purportedly " slight delay in notifying Nassau County and the State of Connecticut" does not rise to the importance of a fun-damental flaw in the Plan. Eeg Order at 18. The Governments object to this finding.
The Board clearly made merits determinations in rejecting this contention. This violates long-standing guidance in NRC case law. Egg August 25 Response at 21-23, 34-35, and cases cited therein. Contention Ex 33 involves the requirement that a licensee demonstrate a capability to notify local and state governments within 15 minutes after the onset of an emergency.
LILCO did not satisfy this 15-minute requirement on February.13, a day when LILCO had advance warning that it would be put to.the test. Thus, the notification of State of New York and Suffolk County simulators did not occur until approximately 6:45 a.m.,
which was 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> and 5 minutes after the Unusual Event, and 28 minutes after the Alert had been declared. Nassau County was not contacted until approximately 8:20 a.m., which was even after the Site Area Emergency had been declared. And, the State of Connecticut was not contacted until approximately 10:30 a.m.,
which was after the General Emergency.had been declared.
There is no basis for the Board, without affording the par-ties an opportunity for hearing, to conclude that these delays were " slight," or that they do not rise to the importance of a fundamental flaw in the Plan. The regulatory requirements are !
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e unambiguous. They require " prompt notification." In each instance where a government was required to be notified, LILCO failed in its responsibilities -- in one in' stance by almost five hours. A merits determination in the context of a contention admissibility ruling where such clear violations of prompt notification requirements have been alleged is contrary to NRC regulatory requirements. Contention Ex 33 should be admitted.8 H. Contention Ex 34 Contention Ex 34 alleges a fundamental flaw in the LILCO Plan in that LILCO is incapable of providing prompt notification to the public in the event of a siren failure. As set forth in Contention Ex 34, the exercise results demonstrated that contrary to the requirements of the LILCO Plan, contrary to a free play message during the exercise, contrary to a specified exercise ob-jective (FIELD 5), and contrary to specified regulatory require-ments, LILCO failed in all three of its exercise attempts to provide prompt notification to the public after~a simulated siren failure.
i 8 The Governments set forth in detail in their August 25 Re-sponse reasons why the objections to Contention Ex 33 were with-out basis. In rejecting the contention, the ASLB relied solely on its characterization that the delay in notification was slight and thus did not constitute a fundamental flaw. That issue, as well as others, is dealt with in detail in the August 25 Response. In view of.the fact that the Board provided only con-clusory reasons.for rejecting Contention Ex 33, the Governments respectfully refer the Board to the previous brief (at 209-13) for additional reasons why the rejection of the contention is without basis. At a minimum, the Board is obligated to provide detailed reasons for its ruling.
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1 The Board did not reject this contention based on the alle-gations contained in the contention. Nor did it find these allegations lacking in basis, or lacking specificity. Rather, despite the fact that FEMA had included three simulated siren failures as part of the exercise, and included as an exercise objective LILCO's ability to respond to such siren failures (FIELD 5), the Board rejected the contention because it termed prompt notification in the event of a siren failure a " mere backup procedure." It therefore concluded that failure to provide notification to the public in the event of a siren failure "cannot be considered a fundamental flaw." See Order at 18.
The Board's ruling must be reversed. To rule that the citi-zens of Suffolk County are not entitled to prompt notification capabilities in the event of a siren failure is to rule that the NRC regulations which require reasonable assurance of adequate protective actions do not apply to LILCO. That clearly is not the case.
At page 3-3 of Appendix 3 to NUREG 0654, it is stated that "special arrangements will be made to assure 100 percent coverage within 45 minutes to the population who may not have received the initial notification within the entire plume exposure EPZ."
Thus, there clearly is a requirement for LILCO to be capable of providing prompt notification after a siren failure. And, as noted above, response to a siren failure was included as a speci-
.fic exercise objective. LILCO, who wrote the exercise objectives
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. 1 and scenario, clearly believed that prompt notification given a siren failure is an important enough feature of its Plan to in-clude it in the exercise, and FEMA apparently agreed. Therefore, there is no basis for a Board finding that a LILCO failure to implement a so-called " mere backup procedure" is unimportant. To the contrary, the contention alleges a fundamental flaw in LILCO's Plan: if LILCO fails to provide prompt notification, the public cannot be protected. There is thus no basis for finding that this is not a fundamental flaw in LILCO's ability to imple-ment adequate protective actions.
The facts as demonstrated during the February 13 exercise are that LILCO cannot provide prompt notification in the event of .
a siren failure. LILCO was given three opportunities to provide such notification and in each instance it failed. For the ASLB to screen such failures from scrutiny in the litigation process is a clear violation of UCS v. NRC.
I. Contention Ex 35 Contention Ex 35 alleges that the exercise demonstrated a fundamental flaw in the LILCO Plan because LERO personnel failed to make independent assessments, evaluations, judgments, or determinations, as to protective action recommendations for the public, as required by LILCO Plan procedures. The contention also alleges that such independent judgments and evaluations of on-site recommendations by off-site personnel are an essential element of adequate emergency response, which contemplate that
command and control decisions, including protective action recommendations, will be made by off-site officials and not by those on-site personnel closest to the accident. The contention goes on to detail specific failures by LERO personnel to perform tasks which are specified to be performed in LILCO procedures, and to document precisely -- with times specified -- the particular sequences of events during which LILCO personnel should have but did not perform the activities and assessments called for by the Plan.
Despite the specificity of the contention, the Board re-jected the contention for failure to allege a violation of NRC regulations with sufficient specificity. See Order at-18. The Board also stated that the evaluations and judgments alleged in the contention are only required if time is available but that the contention fails to make any reference to the time that was available during the exercise. Id.
The Governments cannot assert a simple objection to the Board's ruling. This is because the Board completely ignored the reasons, detailed in the August 25 Response, that this contention is admissible. And, in essence, the Board ignored the detailed specification of violations of LERO procedures which occurred during the exercise and which are set forth in the contention and in the Governments' August 25 Response.9 To assist the Board in 9 For instance, the Board's assertion that the contention was defective for not making a reference to the time which was avail-able during the exercise (Order at 18).i.s simply wrong. At pages 90-92 of the Governments' August 1 contentions, detailed time information is set forth. There is thus no possible basis for the Board's ruling. The Governments set forth the times and make its reconsideration of its earlier ruling, we hereby attach pages 216-20 of the August 25 Response to this filing and urge the Board to review the contention in its entirety. The Governments submit that the contention must be found to be admissible.
J. Contention Ex 38 The Board admitted all of Contention Ex 38 except for sub-part K which the Board stated "has already been heard and decided and that it should therefore not be admitted in this proceeding."
Order at 21. This ruling is in error, but perhaps simply because the Board misunderstood the contents of the subpart.
Subpart K of Contention Ex 38 states as follows:
The ENC did not learn of the pretended Red Cross designation of 15 congregate care cen-ters until 2:40. The EOC had this informa-tion, however, at 12:03. Thus, the ENC did not receive, and therefore was not in a posi-j tion to disseminate information in a timely manner.
The parties understand the reference to "the pretended Red Cross designation of 15 congregate care centers . . . at 12:03" because they have reviewed the' documents generated by LILCO players during the exercise; but not having had access to such documents, perhaps the Board failed to understand the reference. The fol-lowing explanation should clarify matters.
abundantly clear in the contention that prior to accepting the' recommendations, LERO had to perform certain functions and as-sessments. It is difficult to conceive how the Governments could have been more specific in their allegations.
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During the exercise, LILCO players wrote numerous " messages" to one another in the course of purportedly performing, or simu-lating, their assigned jobs under the LILCO Plan. There were
" communicators," " coordinators" and " support personnel" who
" reported," in periodic messages to the LILCO players, on the supposed status of the response to the exercise scenario. Among such messages were some at 12:03, which asserted that the Red Cross had designated 15 facilities as congregate care centers, and listed school buildings and other facilities as having been identified.
In subpart K of Contention Ex 38, the Governments do not intend to allege that those 15 facilities are not available to be !
congregate care centers, although that is the fact. The EOC mes-sages referenced in subpart K were " pretend" anyway, since during the exercise, the Red Cross did not actually designate any con-gregate care centers. Rather, the point of Contention Ex 38 and subpart K is that this simulated " emergency information" --
designated congregate care centers -- was not promptly communi-cated from the EOC to the ENC, and therefore could not have been communicated to the public in a timely manner as required by LILCO's Plan, and the regulations. Thus, subpart K does not-attempt to raise the congregate care center availability issue, as the Board apparently b'elieved.
The Governments apologize if the subpart, as drafted, ap-peared cryptic to.the Board, but believe that with this explana-tion, the Board will reconsider its ruling and admit subpart K.
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K. Contention Ex 43 The Board denied admission to Contention Ex 43 with the following explanation:
even if true that EBS were out of synchrony-with bus availability, such'a matter is sub-ject to administrative remedy that is entirely within LILCO's administrative capability to implement and the Staff's to enforce. Thus, there is no basis for alleging that a funda-mental flaw in the plan exists.
Order 24-25. The Governments object to this ruling because it constitutes a ruling on the merits which is impermissible at the contention admissibility stage of the proceeding, and it applies a wholly improper standard for determining the admissibility of a contention in the exercise proceeding.
First, in holding that the issue raised in Contention Ex 43 "is subject to administrative remedy" and therefore "there is no basis for alleging that a fundamental flaw in the plan exists,"
the Board clearly made factual determinations on the merits of the contention's allegations without permitting the parties to submit their. evidence on those allegations. Such merits rulings are improper in ruling on'the admissibility of contentions, for the reasons stated in the Governments'. August 25 Response at 19-25, and 33-37. In short, based upon the bare allegations pled in Contention Ex 43, the Board had absolutely no basis to conclude that the exercise-revealed Plan deficiencies alleged in that contention could be remedied, that such unidentified " remedies" are " administrative," that LILCO is capable of implementing such l 1
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unidentified remedies, that the Staff could " enforce" them, or that the allegation that the revealed deficiencies are fundamen-tal lacks basis'. The Governments are entitled to an opportunity to submit their proof on properly pled allegations, and the Board's merits ruling in the guise of a contention admissibility ruling improperly deprived the Governments of that opportunity.
Therefore, the ruling should be reversed.
Second, there is no basis for the suggestion that simply because the Board believes that LILCO should be capable of fixing an identified deficiency in the Plan -- whether or not a "fix" is, in the Board's view, " administrative" or something else -- a contention alleging that the exercise revealed a fundamental Plan deficiency is inadmissible. This novel admissibility standard cannot pass muster and must be reconsidered, and rejected by the Board.
L. Contention Ex 48 Contention Ex 48 concerns the fact that the exercise re-vealed a fundamental flaw in the LILCO Plan in that it fails to include arrangements for medical services for contaminated in-jured individuals, including members of the public exposed to high levels of radiation who are not otherwise injured. Such arrangements, facilities, and equipment are required by 10 CFR S 50.47(b)(a), (b)(12), and NUREG 0654 Section II.L.
The Board rejected this contention on the basis of the Commission's previous ruling that such issues allegedly are not to be taken up in emergency planning proceedings. The Board's ruling is incorrect. The bases for reversal of this ruling have already been set forth in connection with the Governments' objec-tions to the Board's ruling on subpart J of Contention Ex 15,Section II.C above. It will not be repeated again. However, the Governments also direct the Board's attention to the discussion of Contention Ex 48 at pages 286-87 of the Governments' August 25 Response, which sets forth additional reasons why this contention is admissible.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788
/ '
/ MC He bert H. B prnL' La rence C. Lanpher Karla J. Letsche Kirkpatrick & Lockhart 1900 M Street, N.W.
Washington, D.C. 20036 Attorneys for Suffolk County
O
, / .
Fabian G. Palomino Richard J. Zahnleuter Special Counsel to the Governor of New York State Executive Chamber Two World Trade Center New York, New York 10047 Attorney for Governor Mario M.
Cuomo and the State of New York Y
- W (Stegpen B.
S Latham h)
Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton October 27, 1986 I
i DOLKETLD October 27, Jg83 GSHRC UNITED STATES OF AMERICA ' 6 DCT 30 P2 :53 NUCLEAR REGULATORY COMMISSION GFF::E . . , - ,.
Before the Atomic Safety and Licensino Board 00CMEig;NC4'i McA lq Q.
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of the SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON OBJECTIONS TO PREHEARING CONFERENCE
. ORDER have been served on the following this 27th day of October, 1986 by U.S. mail, first class, except as otherwise noted.
John H. Frye, III, Chairman Dr. Oscar H. Paris Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Morton B. Margulies, Esq. Dr. Jerry R. Kline Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Mr. Frederick J. Shon Spence W. Perry, Esq.
Atomic Safety and Licensing Board William R. Cumming, Esq.
U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C. 20555 Federal Emergency Management Agency 500 C Street, S.W., Room 840 Washington, D.C. 20472
Anthony F. Earley, Jr., Esq. Joel Blau, Esq.
General Counsel Director, Utility Intervention Long Island Lighting Company N.Y. Consumer Protection Board 175 East Old Country Road Suite 1020 Hicksville, New York 11801 Albany, New York 12210 Mr. William Rogers W. Taylor Reveley, III, Esq.
Clerk Hunton & Williams Suffolk County Legislature P.O. Box 1535 Suffolk County Legislature 707 East Main Street Office Building Richmond, Virginia 23212 Veterans Memorial Highway Mauppauge, New York 11788 Mr. L. F. Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C. 20555 Mary M. Gundrum, Esq. Hon. Peter Cohalan New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125- Wading River, New York 11792 Martin Bradley Ashare, Esq. Fabian G. Palomino, Esq.
Suffolk County Attorney Special Counsel to the Governor Bldg. 158 North County Complex Executive Chamber, Rm. 229 Veterans Memorial Highway State Capitol Hauppauge, New York 11788 ' Albany, New York 12224 Mr. Jay Dunkleburger Bernard M. Bordenick, Esq.
New York State Energy Office U.S. Nuclear Regulatory Comm.
Agency Building 2 Washington, D.C. 20555 Empire State Plaza Albany, New York 12223
9 David A. Brownlee, Esq. Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W. 43rd Street New York, New York 10036
/
[
Ka'r ry J . Letsc KIRKPATRICK & OCKHART 1900 M Street, N.W.
Suite 800 Washington, D.C. 20036 i Date: October 27, 1986
ATTACHMENT i
they mean for the public health and safety of Suffolk County residents. Egg also Section II.F above. Contention Ex 34 should be admitted.
F. Contentions Ex 35-37: Fundamental Flaws Relatino to Protective Action Recommendations
- 1. Contention Ex 35 LILCO purports to make two objections to this l contention. Neither withstands scrutiny. First, LILCO asserts l
that the contention does not allege a fundamental flaw. LILCO Obj. at 122, 67. In fact, where ane reads this so-called l
" objection," it is clear that it is completely inapplicable to what Contention Ex 3: actually alleges. ,
l The contention alleges that t'ne exercise demonstrated a fundamental flaw in the LILCO Plan in that LERO personnel violated their own procedures by failing to make inde-pendent assessments, evaluations, judgments or determinations concerning PARS. It alleges that iri light of such failures, the exercise precludes a finding of reasonable assurance that ade-quate protective actions can and will be taken in the event of a Shoreham emergency.
Notwithstanding the express language of the contention, LILCO blithely asserts that Contention Ex 35 alleges nothing except that "no calculations were done by LERO between receipt of the onsite PARS and LERO's decision about what PARS to communicate to the public." LILCO Obj. at 66. This blatant
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1 mischaracterization completely ignores the numerous detailed and
- specific allegations contained in the four pages of that con-tention. Thus, Contention Ex 35 in fact alleges that, during the exercise, the LERO players failed to perform the following four tasks, each of which is required under OPIP 3.6.1, before adopting any of the three PARS made by LILCO's onsite personnel
A. LERO personnel failed to obtain the data necessary to enable them to exercise independent judgment, make independent assessments, and make independent determinations of what PARS would be appro-priate; B. LERO personnel failed to analyze i independently or critically the PARS trans- .
mitted by the onsite staff; .
l C. LERO personnel failed to indecen-dentiv develoo PARS, separate from those provided by the onsite staff, based on dose projections or survey data; and, D. LERO personnel failed to obtain or orecare sufficient or acorooriate data or documentation necessary to sunoort the PAR decisions made at the EOC (this failure vio-lates OPIP 4.1.2 in addition to OPIP 3.6.1).
In addition, Contention Ex 35 goes on to allege, even more specifically, how these failures occurred with respect to each of the three PARS received by LERO personnel from the EOF. Thus, the contention alleges that, during the exercise, in violation of LILCO's own procedures and NRC regulations:
(i) After receipt of the EOF sheltering recommenda-tion, LERO personnel: performed no calculations to deter-mine dose projections or PARS; did not request or learn of l the data or calculations upon which the onsite PARS were based; and did not discuss, analyze, evaluate or even con-sider the EOF sheltering recommendation.
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l (ii) Between receipt and LERO adoption of the EOF recommendation to evacuate zones A-M, Q, and R, LERO per-sonnel: performed no calculations of projected doses as required by SS 5.1 and 5.2 of OPIP 3.6.1; did not request data from the EOF demonstrating that the recommendation was
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correct or appropriate (and data at the EOC, in fact, sug-gested that that recommendation could be inappropriate); had no data to indicate that the recommendation was correct; and, did not exercise any informed independent judgment in adopting the EOF recommendation.
(iii) Between receipt and LERO adoption of the EOF rec-ommendation to evacuate zones N, O, P and S, LERO personnel:
performed no calculations to derive dose projections in light of the predicted wind shift (the sole basis for the EOF recommendation); had no data from the EOF or BHO demon-strating that that recommendation was necessary, appropriate or correct; and failed to exercise any informed independent judgment in adopting the EOF recommendation.
Clearly, Contention Ex 35 more than satisfies every admissibility standard. It is detailed, specific, alleges regulatory violations and violations of LILCO's own procedures, and it alleges that the exercise demonstrated perhaps the most fundamental flaw possible in an emergency plan -- i.e., an inability to determine appropriate protective action recommendations for the public.
LILCO's assertion, without explanation or basis, that j this contention does not allege a fundamental flaw because "what Intervenors have done is string together a few isolated, minor, ;
1 and easily corrected discrepancies in an attempt to challenge LERO dose assessment capabilities" (LILCO Obj. at 67), must be rejected. It is simply wrong. Similarly, LILCO's assertion that "in fact, FEMA found that the onsite and offsite organizations
' demonstrated good judgment in making correct PAG determina-tions'" (14.), is nothing more than a disagreement with the
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allegations in Contention Ex 35. Such an attempt to argue the merits of a contention is not an appropriate admissibility objection. Egg Sections II.B and E above. Clearly, in Contention Ex 35 the Governments have alleged in detail that a fundamental defect in LERO's capability of performing an assential function under the LILCO Plan and under the NRC regulations was dramatically revealed during the exercise. The contention should be admitted.
LILCO's second purported " objection" to Contention Ex 35 consists of a one sentence assertion that a portion of the third sentence in the contention "is outside the scope of this )
litigation . . . to the extent that Intervenors mean . . . to raise the issue of ' conflict of interest'." LILCO Obj. at 122.
This so-called " objection" is also wholly without merit. The sentence containing the offending words, in its proper context, is as follows:
The exercise demonstrated a fundamental flaw in the LILCO Plan in that LERO personnel did not make independent assessments, evalua- i tions, judgments or determinations as to pro-tective action recommendations, including those made by onsite personnel, as required by OPIP 3.6.1. There was also no demonstra- ,
tion of their ability to do so. Such inde- I pendent judgments and independent evaluations of onsite recommendations are an essential element of adequate emergency response, as embodied in the Commission's regulations, which contemplate that command and control decisions, includino orotective action recommendations, will be made by officials of state and local covernments, and not by the licensee. Egg, e.q,, 10 CFR S 50.47; 10 CFR Part 50, App. E, S IV.D.3; NUREG 0654; Lono
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Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644, 686 (1985), anneal oendina.
Clearly, there is no basis to object to the portion of the sen-tence cited by LILCO. The assertion contained therein is di-rectly related to the cited regulations and the cited fundamental flaw demonstrated during the exercise. In addition, there is no basis to assert that by including these clauses in Contention Ex 35, the Governments attempt.to relitigate EP Contention 11.
Egg LILCO Obj. at 122. That contention had nothing to do with exercise results; Contention Ex 35 does not allege a conflict of interest, but merely alleges that LERO failed to follow its own procedures and NRC regulations; and, the reference to the PID in the contention is clearly designated as an examole (note the "e a." preceding the citation) to demonstrate that independent offsite command and control decisions are contemplated by, and embodied in, the Commission's regulations. Thus, this LILCO
" objection" should be rejected out of hand.
Finally, the Staff makes no independent objections to Contention Ex 35. Indeed, this is one of many examples of the Staff's literally copy'ing, word-for-word, objections made by LILCO (apparently from a copy of LILCO's objections obtained in advance of filing). Egg Section I above.
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