ML20214K794

Response to Intervenors 860801 Proposed Emergency Planning Contentions Re 860213 Emergency Exercise.No Contentions Should Be Admitted Except for Contentions 34,38,39,40.A,B,C, 41.A,B & 43.A.Certificate of Svc Encl

ML20214K794
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	08/15/1986
From:	Bordenick B NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#386-402 OL-5, NUDOCS 8608220107
Download: ML20214K794 (52)

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' ,l ifsRG UNITED STATES OF AMERICA # 18 P3:04 NUCLEAR REGULATORY COMMISSION KE TIht; ,.SE ;

BEFORE Tile ATOMIC SAFETY AND LICENSING BO%RR 'Uf- ]tiggy In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5

) (EP Exercise)

(Shoreham Nuclear Power Station, )

Unit 1) )

NRC STAFF RESPONSE TO PROPOSED EMERGENCY PLANNING CONTENTIONS RELATING TO THE FEBRUARY 13, 1986 EXERCISE (Filed By Suffolk County, The State of New York and the Town of Southampton)

Bernard M. Borden!ck Counsel for NRC Staff August 15, 1986 0107 atoo13goo 37p h$002/gOcxon, o

PDH 3 50"

I j Ausgg$ETEg5, 1986-USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COM?.!!SSIM AIE 18 P3 :04 BEFORE THE ATOMIC SAFETY ANDtJfiALICENbbhkEOM NCH In the Matter of )

)

LONO ISLAND LIGilTING COMPANY ) Docket No. 50-322-OL-5

) (EP Exercise)

(Shoreham Nuclear Power Station, )

Unit 1) )

NRC STAFF RESPONSE TO PROPOSED EMERGENCY PLANNING CONTENTIONS RELATING TO TIIE FEBRUARY 13, 1986 EXERCISE (Filed By Suffolk County, The State of New York and the Town of Southampton)

1. INTRODUCTION Pursuant to the Commission's Memorandum and Order issued in this proceeding on June 6,1986, CL1-86-11, and this Licensing Board's Memo-randum and Order (Prehearing Conference, July 8,1986) dated July 11, 1986, Suffolk County, the State of New York and the Town of Southampton (Intervenors) on August 1, 1986, filed proposed emergency planning contentions related to the February 13, 1986, emergency exercise held at Shoreham. By Order of August 6,1986, the NRC Staff (Staff) was given until August 15, 1986, to respond to these contentions. The Staff response is set out herein.

11. DACKOROUND On June 20, 1985, the Staff, at the request of LILCO, asked FEMA to conduct an exercise to test offsite emergency preparedness at Shoreham. On February 13, 1986, a team of 38 Federal evaluators evalu-ated an exercise of the Local Emergency Response Organization (LERO) as

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e specified in the LILCO Transition Plan for the Shoreham Nuclear Power Station. The exercise was held between the hours of 5:30AM and 5:30PM.

The results of the exercise are set forth in a Post Exercise Assessment issued by the Federal Emergency Management Agency (FEMA) on April 17, 1986. This document is hereafter referred to as the FEMA Report or FEMA Assessment, and has been previously supplied to the Board.

In a motion dated March 7,1986, Intervenors requested the Commis-sion to advise the parties to this proceeding of their procedural responsi-bilities concerning further hearings on emergency planning issues related to the February 13, 1986, exercise. LILCO and the Staff responded to Intervenors' written request on March 13, 1986 and March 24, 1986, re-spectively. Those pleadings led to the issuance of a Memorandum and Order by the Commission on June 6, 1986, CLI-86-11, which is further discussed, infra. As a result of CLI-86-11 and a Prehearing Conference held by this Licensing Board on July 8,1986, Intervenors have filed the proposed contentions which are addressed in this Staff response.

III. STANDAPDS FOR THE ADMISSION OF

CONTENTIONS AND GENERAL OBJECTIONS A. Standards Generally Applicable to Proffered Contentions In order for Intervenors' proposed contentions relating to the emergency planning exercise at Shoreham to be admitted as matters in controversy in this proceeding, they must satisfy the Commission's re-quirement that the basis for the contention be set forth with reasonable specificity. 10 C.F.R. I 2.714(b).

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As a general matter, in order for proposed contentions to be found admissible, they must fall within the scope of the issues set forth in the Notice of Hearing initiating the Proceeding, II and comply with the l requirements of 10 C.F.R. I 2.714(b) and applicable Commission case law.

i Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-107, 6 AEC 188,. 194 (1973), aff'd ,

BPI v. Atomic Energy Commission, 502 F.2d 424, 429 (D.C. Cir.1974);

Duquesne Light Co. (Beaver Valley Power Station, Unit No. 1) ,  !

4 i ALAD-109, 6 AEC 242, 245 (1973). The purpose of the basis requirements of 10 C.F.R. I 2.714 is (1) to assure that the contention in i

question raises a matter appropriate for litigation in a particular f proceeding, U (2) to establish a sufficient foundation for the contention l

l 1/ Public Service Co. of Indiana Inc. (Marble Hill Nuclear Generating  ;

Station, Units 1 and 2). ALAB-316, 3 NRC 167, 170 (1976). See i

also, Commonwealth Edison Company (Carroll County Site) ,

i EXB-601, 12 NRC 18, 24 (1980); Portland General Electric Co.

i (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-290, n.6 (1979).

In this case they must also fall within the scope of the issues set i forth in CLI-86-11.

, 2,/ A contention must be rejected where:

I j (a) it constitutes an attack on applicable statutory requirements; I

l (b) it challenges the basic structure of the Commission's

! regulatory process or is an attack on the regulations; i '

! (c) it is nothing more than a generalisation regarding

the intervenor's views of what applicable policies j ought to be

)

i (FOOTNOTE CONTINUED ON NEXT PAGE) i 1-_-_--,.--,- - -- - _ _ .-..___..

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, J to warrant further inquiry into the subject matter addressed by the assertion and, (3) to put the other parties sufficiently on notice ". . .

so that they will know at lease generally what they will have to defend against or oppose." Peach Bottom, supra at 20. As to the basis i

requirement, it is unnecessary for the proposed contention to detail the evidence which will be offered in support of each contention. Mississippi Power a Light Co. (Grand Gulf Nuclear Station, Units 1 and 2),

ALAB-130, 6 AEC 423, 426 (1973). Additionally, in examining the con-tentions and the bases therefor, a licensing board need not reach the merits of the contentions. Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 548 (1980); Duke Power Co. (Amendment to Materials License SNM-1773 -

Transportation of Spent Fuel From Oconee Nuclear Station for Storage at McGuire Nuclear Station), ALAB-528, 9 NRC 146, 151 (1979);

Peach Bottom, supra, at 20; Grand Gulf, supra at 426.

In Alabama Power Company (Joseph M. Farley Nuclear Plant Units 1 and 2), ALAB-182, 7 AEC 210, 216-217 (1974), the Appeal Board in-structed that in assessing the acceptability of a contention as a basis for granting intervention:

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(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)

(d) it seeks to raise an issue which is not proper for adjudication in the proceeding or does not apply to the facility in questioni or (e) it seeks to raise an issue which is not concrete or litigable.

Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974).

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[T]he intervention board's task is to determine, from a scru- .n tiny of what appears within the four corners of the contention as stated , whether (1) the requisite specificity exists; (2) there has been an adequate delineation of the basis for the contention; and (3) the issue sought to be raised is cog-nizable in an individual licensing proceeding. (Footnotes l omitted) i This instruction applies equally to a contention proffered by intervenors already a party to a proceeding as well as by a petitioner to intervene.

If 6 contention meets these criteria, the contention provides a foundation for admission " irrespective of whether resort to extrinsic evidence might establish the contention to be insubstantial. The question of the 9

contention's substance is for later resolution -

either by way of 10 C.F.R. I 2.749, summary disposition prior to the evidentiary hearing

. . . or in the initial decision following the conclusion of such a hear-ing." Farley, supra, 7 AEC at 217. - Thus, it is incumbent upon Intervenors to set forth contentions and bases therefore which are sufficiently detailed and specific to demonstrate that the issues they purport to raise are admissible. The Staff submits, for the reasons more fully set forth below, that Intervenors have in most instances failed to meet these requirements.

3/ Farley, supra, at 217. In addition, the proposed contention should

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refer to and address relevant documentation, available in the public domain, which is relevant to the proceeding in question and the proffered contention. See, Cleveland Electric Illuminating Company, et al. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24, 14 NNU 175, 181-184 (1981). In this case the documentation in question is the FEMA Report and the LILCO and FEMA documents which have to date been made available to Intervenors on a voluntary basis by LILCO and FEMA.

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h- Specific Standards Applicable To Shoreham Exercise Contentions B.

In addition to the principles relating to the admission of contentions generally, Shoreham exercise contentions are controlled by the Commission order in CLI-86-11 which provides that only contentions related to

" fundamental flaws" in the LILCO emergency plan are to be heard in this proceeding. Further, the Shoreham exercise contentions should not deal with matters which are either pending before the Commission or the Appeal Board or have been the subject of past litigation.

1. The Commission in providing for hearings on the Shoreham exercise stated (CLI-86-11, at 5):

Under our regulations and practice, staff review of exercise results is consistent with the predictive nature of emergency planning, and is restricted to determining if the exercise revealed any deficiencies which preclude a finding of reasonable assurance that protective measures can and will be taken, i.e., fundamental flaws in the plan. Since only fundamental flaws are material licensing issues, the hearing may be restricted to those issues.

However, we agree with Intervenors' second point, that the wording of LILCO's proposal to exclude contentions which do not demonstrate fundamental flaws in the emergency plan, has the potential to require premature evidentiary decisions. We remedy that possible defect by directing the Board to admit only those Intervenor contentions which satisfy the specificity and other requirements of 10 CFR 2.714 by 1) pleading that the exercise demonstrated fundamental flaws in LILCO's plan ,

and 2) by providing bases for the contentions which, if shown to be true, would demonstrate a fundamental flaw in the plan.

The Commission in adopting the fundamental flaw standard expressly noted its disagreement with Intervenors' proposition that restriction of

4 1 i any emergency planning exercise hearings to " fundamental flaws" requires rulemaking or is otherwise inappropriate. The Commission noted that in the preamble to its rule reviewed in Union of Concerned Scientists v. NRC b and its rule change responding to the court's decision, the predictive nature of emergency planning findings and that hearings on emergency exercises only had to deal with matters which would affect licensing. See 47 Fed. Reg. 30232 (July 13,1982); 50 Fed.

Reg.19323 (May 8,1985). The Court in USC particularly observed that the Commission could exclude from exercise litigation any issue which was i not material to licensing decisions. See 735 F.2d at 1447-48; see also CLI-86-11 at 5. -

With minor exceptions, none of the contentions oad by Intervenors are admissible because Intervenors have failed t, that the alleged deficiencies cited preclude a reasonable assure Jing pursuant to 10 C.F.R. I 50.47 as required by the Con. In CLI-86-11. The contentions lack a basis because they fall to allege how or why the deficiencies constitute a fundamental flaw in the LILCO offsite emergency response plan. As the Appeal Board noted in connection with Suffolk County's quality assurance contentions in this licensing pro-ceeding it is not sufficient to merely allege or show that there are

! individual deficiencies in a program to prove that the program is flawed.

4/ Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.

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1984), cert, denied,105 5. Ct. 815 (1985).

! 5/ This standard and reasoning was used by the Licensing Board in

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Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant),

j LBP-85-49, 22 NRC 899 (1985), which decision antecedes CLI-86-11.

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- The flaw itself must be shown. See ALAB-787, 20 NRC 1097,1142-43 (1984). Here similarly, it is not sufficient to allege merely that there were deficiencies in the emergency planning exercise, but (as recognized in CLI-86-11) it must be shown that the Plan is fundamentally flawed. 6_/

The proffered contentions for the most part fail to provide a basis to make such a showing, and thus should be rejected.

2. Many matters which the Intervenors seek to raise as Contentions in this phase of the proceeding are also not proper for litigation before this Licensing Board as they are: (a) matters upon appeal pending resolution by the Commission or the Appeal Board; (b) matters remanded by the Commission to be determined in other proceedings; or .(c) matters which were the subject of completed hearings. This Licensing Board takes its mandate from CLI-86-11, where the Commission said it should

" consider evidence which Intervenors might wish to offer to show that there is a fundamental flaw in the LILCO emergency plan." At 1. It thus may only consider matters concerning " fundamental flaws" in the LILCO emergency plan. See Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-316, 3 NRC 167 (1967);

Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419, 426 (1980).

In the same decision, the Commission recognized that matters addressed in petitions to review ALAB-832 (which dealt with the technical 6/ As pointed out in the Shearon IIarris case, where a deficiency is minor and can easily be corrected, it is not a fundamental flaw.

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adequacy of the LILCO plan) and ALAB-818 (which dealt with legal authority, " realism" and " immateriality" issues) were still pending before it . At 2, 7. This Board does not have authority to rule upon the matters which the Commission reserved to itself in the Order in which it gave jurisdiction to this Board.

4 In CLI-86-13, the Commission while still deferring its own consideration of the legal authority and preemption issues, remanded to the Licensing Board for further proceedings LILCO's " realism" and

" immateriality" arguments. At 14, 16. In that decision the Commission, at 17, also directed that the Appeal Board should consider matters involved in LILCO's appeal of the Licensing Board's emergency planning decision on Shoreham. These include LILCO's appeal of issues ' involving the requisite capacity of the relocation center, possible conflicts of interest in LILCO carrying out its emergency plan, and the purported lack of a New York State plan. It would be improper for the Licensing Board to deal with these issues which the Commission instructed the Appeal Board to consider. A Licensing Board may not consider matters which have been taken to an Appeal Board for review. See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-699, 16 NRC 1324,1326-27 (1983).

Similarly, matters which have been previously decided in this proceeding can not be litigated in this emergency exercise proceeding.

Once a party has litigated an issue it is not entitled to have that issue heard again. See Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALA-378, 5 NRC 557 (1977). Therefore, the

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) Intervenors are foreclosed from again litigating matters they litigated before.

In sum, this proceeding may only consider whether the exercise demonstrated " fundamental flaws" in the LILCO emergency plan and may not consider matters before the Commission or the Appeal Board, matters encompassed in other proceedings involving the LILCO emergency plan or any matter which was previously heard in this proceeding.

IV. OBJECTIONS TO INDIVIDUAL CONTENTIONS l-A. Contentions Ex 1-7 (Intervenor's Group I - Legal Authority)

Contentions Ex 1-7 raise legal arguments concerning LILCO's authority to implement its plan and should be rejected summarily. The t

' individual contentions assert that LILCO is required to perform command and control functions beyond LILCO's legal authority (Contention Ex 1);

i that LILCO is required to communicate and implement protective action recommendations beyond LILCO's legal authority (Contention Ex 2); that LILCO is required to make, communicate and implement evacuation or sheltering decisions for the general public that are beyond LILCO's legal authority (Contention Ex 3); that LILCO is required to make, communicate and implement evacuation or sheltering decisions for the general public

! that are beyond LILCO's legal authority (Contention Ex 4); that LILCO is required to order or recommend an evacuation and to conduct evacuation management activities, including traffic direction functions, that are

! beyond LILCO's legal authority (Contention Ex 5); that LILCO is required to decide upon, communicate, and carry out protective actions that are l

O beyond LILCO's legal authority (Contention Ex 6); and that because of LILCO's lack of legal authority, LILCO was incapable of satisfying enumerated exercise objectives. (Contention Ex 7).

These contentions and the " Preamble to Contentions Ex 1-7" at 1-9, are nothing more than a restatement of previous arguments made to this Board, the Appeal Board and the Commission on the question of LILCO's legal authority. The question of LILCO's legal authority is pending before the Commission and should not be considered by this Board. See CLI-86-11; CLI-86-13. O In addition, these proposed contentions reargue positions asserted by Intervenors in an attempt to convince the Commission to cancel the February 13th exercise. These arguments were rejected by the Commission's unpublished " Memorandum and Order" issued on January 30, 1986, (denying Intervenor's December 26, 1985 motion to cancel the exercise). The contentions in question, insofar as they relate i

to the question of whether the exercise should have been held , are l inadmissible; the question of whether the exercise should be held was previously considered and finally resolved by the Commission.

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This Board and the Appeal Board ruled against LILCO on the legal authority issue, Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LD P-85-12, 21 NRC 644, 895-919 (1985), aff'd ,

AL A B-818, 22 NRC 651 (1985). The Commission presently has pending before it LILCO's appeal on the preemption argument in response to the legal authority contentions (Contentions Ex 1-10) and has remanded to the Lictnsing Board for further proceedings the realism and immateriality arguments, Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-86-13, NRC l (1986). Regarding LILCO's authority under State law to perform the activities listed in Contentions Ex 1-7, the New York Supreme Court has ruled against LILCO on that issue; LILCO's appeal is pending before the State Court of Appeals.

p Moreover, the exercise was not designed to determine whether LILCO has the legal authority to implement its Plan. Indeed as noted by Intervenors in their proposed contentions, FEMA conducted the exercise with knowledge that there were legal concerns involving LILCO's legal authority to implement the LERO plan. 8,/ However, nothing set forth in the Contentions Ex 1-7 forms a basis to show that FEMA's evaluation of LILCO's exercise was hindered by LILCO's lack of legal authority. Ac-cordingly, the contentions, even if otherwise admissible, could not establish a fundamental flaw in LILCO's Plan as disclosed by the exercise.

For the foregoing reasons, proposed Contentions Ex 1-7 should not be admitted as contentions in this proceeding.

B. Contentions Ex 8-14 (Intervenors Group II - Lack of Active Governmental Participation)

Contentions Ex 8-14, at 9-16, essentially allege that as the exercise did not test LILCO's " realism" argument (that the State and local governments would participate in an emergency), a fundamental flaw in LILCO's emergency plan was demonstrated. These Contentions in summary form assert:

Contention Ex 8 -- The exercise scenario assumed the County or State would not use their emergency powers or " carry out major portions of the response."

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Certain of the SA's and other FEMA exercise objectives set forth in Proposed Contention _s Ex 1-7 were not identified in the FEMA Assessment as legal concerns. These are: Contentions Ex 1-SA 8; Ex 2 - Objective EOC 12; Ex 3-SA 8; SA 8, Fields 5, 9 and 13-16; and Ex 7 - EOC 12, BPO ICTA 7 and Field 9.

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e Contention Ex 9 -- The County or State simulators did not assume command or_ control functions, interact with the public, or seek to perform government functions.

Contention Ex 10 - The LILCO plan does not establish or assign

" specific emergency responsibility of state and local governments";

the plan did not demonstrate the state and local governments' conduct or performance of " primary responsibilities" for emergency

. response.

Contention Ex 11 -

The exercise scenario stipulated that the governments would not activate their emergency powers 'and authorities, would not assume responsibility for protective action decisions, and would not take any actions to implement such decisions.

Contention Ex 12 - The exercise scenario stipulated that state and local governments would remain " passive observers."

Contention Ex 13 - The exercise did not involve the " active participation" of the state and local governments, and so the exercise was not an exercise of actual government actions.

Contention Ex 14 - The exercise did not involve the " active participation" of the state and local governments, and the LILCO plan does not assign " primary responsibility" for emergency response to the state and local governments.

In CLI-86-13 the Commission stated: "

...we remand LILCO's realism argument to the Licensing Board for further proceedings in accord with this Decision." At 14. Consideration of these contentions dealing with realism should therefore be deferred pending subsequent consideration of the issues remanded by CLI-86-13.

Further, to the extent the contentions allege that the LILCO plans are defective because they do not provide a mandatory role for State or local officials, these are both questions before the Commission as part of the legal authority issues and matters that could have been previously f f

tested in the litigation of the LILCO plan (in contrast to the exercise),  ;

and cannot be raised in this phase of the proceeding. ,

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e For - the - foregoing . reasons Contentions Ex. 8-14 should be-rejected.

C. Contentions Ex 15-19 (Intervenors Part III " Limited Scope of the Exercise Precludes Reasonable - Assurance Finding")

Each of these contentions deals with the scope of the Shoreham emergency planning exercise and not with whether the exercise revealed a fundamental flaw in the emergency plan for Shoreham. As previously stated, the Commission in CLI-86-11 set out the scope of this proceeding:

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Under our regulations and practice staff review of the exer- .

cise results is consistent with the predictive nature of emer-gency planning, and is restricted. to determining if the

< exercise revealed any deficiencies which preclude a finding of reasonable assurance that protective measures can and will be

taken i.e., fundamental flaws in the plan. Since only funda-mental- flaws are material licensing issues, hearings may be restricted to those issues.

We . . . [arel directing the Board to admit only those Inter-venor contentions which satisfy the specificity and other re-

quirements of 10 C.F.R. 2.714 by 1) pleading that the exercise demonstrated fundamental flaws in LILCO's plan, and

! 2) by providing bases for the contention which, if shown to be true, would demonstrate a fundamental flaw in the plan.

At 3.

l l As the heading to this group of contentions shows, these contentions 1

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do not go to demonstrating a fundamental flaw in the plan, but assert that the exercise was not proper. By the terms of CLI-86-11 these contentions are not admissible.

Contention Ex 15 asserts that the scope of the February 13, 1986 exercise of the LILCO Plan was so limited that it did not yield meaningful results on the implementation capability of the Plan. Specifically, it asserts that the following matters were not addressed in the exercise:

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public notification (A-C,II); procedures for evacuation of hospitals (D);

arrangements for schools (E-G); procedures for the ingestion pathway (I); medical services for the public monitoring of evacuees from special facilities (K); . review of the adequacy of congregate care centers (L); and recovery and re-entry procedures (M) were not addressed in the exercise. Ilowever, this contention fails to make the showing required by the Commission- in CLI-86-11, for even if the matters pleaded were true they would not demonstrate a " fundamental flaw in the plan."

Similarly, Contention Ex 16 lists a number of persons and organizations which Intervenors assert did not participate or did not participate fully in the exercise including: the State of Connecticut (A);

the Coast Guard (B); entities of the public notification system (C,D,E);

schools (F); bus drivers (G); medical personnel (II,I,J); bus and i ambulance companies (K,L); local government authorities (M); and congregate care facilities listed in the Plan (N). Again, this contention goes to limitations in the exercise and not whether the exercise demonstrated "a fundamental flaw in the Plan . " It should not be admitted.

! Similarly, Contention Ex 17 (dealing with the failure to include emergency planning elements in the exercise) and Contention Ex 18 l (dealing with the " limited" nature of the exercise) are generally redundant of the matters pleaded in Contentions Ex 15 and 16 and do not

go to "a fundamental flaw in the plan", but rather go to the nature of l'

the exercise. To the extent Contentions Ex 17 and 18 are redundant,

! they may not be admitted.

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a Moreover, to the extent that any of these contentions seek to raise issues concerning the necessity for participation by State or local

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governments, they may not be admitted in this proceeding. The

' Commission has already ruled on these issues in its decision to review a utility plan ( CLI-83-13, 17 NRC 741 (1983)), and the determination to hold an emergency planning exercise on the utility plan (Memorandum and Order, January 30, 1968). Thus such contentions as Contention Ex 18, dealing with lack of " full participation" by State and local governments, may not be admitted. Contentions Ex 15. A,15.D-G,15.I 16.F,16.G, 16.M are similarly infirm.

Similarly, these contentions may not raise issues of legal authority.

Issues of legal authority are before the Commission and outside the scope of the exercise litigation. See CLI-86-11, at 7; points III.B .2,IV. A ,

supra). Contentions Ex 15. A , 15.I , 16.D , 16. F. 16.G , 16.M. 17 and 18 should also be rejected for this reason.

In addition , a premise of each of these four contentions is that every element of an emergency plan must be tested in an emergency planning exercise. Intervenors cite no support for this requirement.

Indeed, the regulation cited by the Intervenors specifically calls for an exercise that tests "as much of the licensee, State and local emergency plans as is reasonably achievable without mandatory public participation. . ." (emphasis supplied) . Hence, many of the elements noted

in the four subject contentions would not be explored in any emergency

! planning exercise, even one that included local and state government authorities. For example, actual evacuation of schools would not take place (15. E-G) , nor would evacuation of the boating population (15H) ,

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nor monitoring of evacuees from special facilities -(15K), nor would the s movement of people during recovery and re-entry be tested (15M).

Additionally, many of the matters Intervenors attempt to raise in these contentions, were already decided adversely to them in this pro-cceding. For example , in Contention Ex 16, Intervenors once again attempt to include as emergency workers relied upon for implementation of the plan school officials (16.F), Hospital administrators (16.J), and .

nursing home personnel (16.I,J) in spite of the Licensing Board's findings and the Appeal Board's determination that such entities are not support organizations having an emergency response role. See 21 NRC 644, 834, LBP-85-12 ' (1985); 23 NRC 135, 150-153, n.65, ALAB-832 (1986). The Intervenor may not again litigate this matter.

Other issues raised in these contentions have also been remanded for consideration in other parts of this litigation and are inappropriate for litigation in connection with the exercise litigation, See Contentions 15.D i [ procedures for evacuation of hospitals], 16.G [ availability of school bus drivers),18.C [ provisions for school children]). See 23 NRC 135, (1986).

These contentions fail to present litigable issues in this proceeding and

should be denied admission for this reason also.

Contention Ex 19 asserts that the exercise demonstrated a fundamental flaw in the LILCO plan because of FEMA's inability to make a reasonable assurance finding which allegedly is required by 10 CFR 50.47(a)(2). However, it is the NRC and not FEMA which must make the ultimate findings in regard to emergency preparedness. FEMA's findings only constitute a rebuttable presumption on questions of adequacy and implementation capability. This contention is also defective in that it

l addresses the issue of legal authority. As we have detailed the Commission has reserved consideration of that issue for itself.

D. Contentions 20-22 (Intervenors Part IV, " FEMA Conclusions Preclude a Reasonable Assurance Finding")

Contentioits Ex 20 and 21 assert that FEMA failed to review or evaluate critical aspects of activities it relied on to reach its conclusions (Contention Ex 20), and that the samples reviewed by FEMA were too small to support FEMA's conclusions regarding various activities (Contention Ex 21). Again, Intervenors raise the same issues noted in Contentions Ex 15 and 16 for example, public notification (15.A, 16.C,

15. B . 15. H 16. B , 18. C(iv)) , contact with schools, hospitals and special facilities (15.B ,D,G, 16. F , H ,I, J) , and limited school district participation.

(16.F. 15.E-G, 16.G, 18.C(v)). Neither of these contentions should be admitted for.the reasons stated in response to Contentions Ex 15 through 18, that is, that they are not directed to showing a " fundamental flaw in the plan" which the Commission required in CLI-86-11, rather than a flaw in the exercise. Further, no basis is set out for the premise of these contentions that FEMA must review each and every element of an emergency plan as part of its evaluation of an emergency . planning exercise. For these reasons Contentions Ex 20 and Ex 21 should be rejected.

Further, many of the matters alleged in these contentions were for-merly litigated and decided against intervenors. See eg, Contention i Ex 21.F on the number of roadway impediments, see 21 NRC 644, 811.

I Such issues should not be relitigated in this proceeding. Similarly, with 1

regard to Contention Ex 21.E the number of traffic guides was capable of litigation in former phases of this proceeding and cannot be raised now. I Intervenors also fail to state any basis for the assertion that the number of guides observed by FEMA was "too small", or even if this were true how this reveals a fundamental flaw in the plan.

Further, there is no requirement that FEMA observe the full compli-i ment of emergency workers that would be required in the event of an actual emergency, and Intervenors point to none. Appendix E defines a

" full participation" exercise as one that " tests as much of the ...

2 emergency plans as is reasonably achievable without mandatory public participation." In fact, FEMA Assessment cites the objectives of the i exercise as including the demonstration of a sample of resources necessary to implement an orderly evacuation of all or part of the 10 mile EPZ (route alert drivers, 21. A), a demonstration of a sample of resources

, necessary to effect an - evacuation of the mobility impaired (ambulance /ambulette drivers, 21.D), demonstrate a sample of resources necessary to effect an early dismissal and orderly evacuation of schools (bus drivers and schools districts, 21.B C), and demonstrate a sample of 1

resources necessary to control access to evacuation areas (Traffic Guides, 21.E), and remove roadway impediments 21.F). b FEMA Assessment at i

l 1.6, p. 14 (emphasis added). Hence, the objectives of the exercise clearly anticipate that FEMA would evaluate a sample of resources, and l

l i

i 9/ The Board formerly concluded that the number of incidents requiring

(

removal of roadway impediments would be quite modest. 21 NRC l 810-811. As Internvenors recognize in their Proposed Contentions at i p. 59, FEMA observed LILCO's ability to remove impediments at two locations.

. this contention utterly fails to show any nexus between FEMA's sampling of resources and a fundamental flaw in the plan.

Contention Ex 22 again repeats the assertion in Contention Ex 19 that FEMA cannot make a reasonable assurance finding and accordingly the LILCO Plan is fundamentally flawed. Specifically, Contention Ex 22 asserts that the exercise scenario and events which occurred during the exercise are premised upon assumptions which conflict with " established facts" and hence FEMA's findings are without basis and thus cannot support a finding of reasonable assurance. For example, Contention Ex 22.A asserts a fundamental flaw in the LILCO Plan is that the implementation of the Plan is dependent upon the availability of the Nassau Coliseum as the relocation center for evacuees when, in fact, that facility cannot be used for that purpose. E It is true that the Nassau Coliseum is not available for use as a relocation center. However, LILCO has advised the Commission that it is designating replacement relocation centers. E Specifically, LILCO states that it will shortly designate other relocation facilities in lieu of the Nassau Coliseum in Revision 8 to the LILCO Transition Plan. It further states that this alternative will ensure that the Nassau Coliseum need not be relied upor- Accordingly, even assuming arguendo that Contention Ex 22. A would be otherwise

~

admissible, the allegations contained in the proposed contention are moot

-10/ As noted by the Intervenors, the Nassau County Board of Supervisors has expressly prohibited the use of the Coliseum as part of LILCO's Plan.

-11/ See LILCO's Response to Intervenors' Supplemental Answer to LILCO's Petition for Review of ALAB-832 and Their Motion for Leave to File the Same, dated August 4,1986.

e

. since the Nassau Coliseum is no longer relied on by the LILCO Plan as a relocation center. This contention should not be admitted.

Contention Ex 22.B asserts that no schools or school districts in the EPZ have adopted plans to conduct an early dismissal or evacuation of their students pursuant to a LILCO recommendation in the event of a Shoreham accident and thus constitutes a fundamental flaw in the Plan.

However, the issue of planning for schools has already been litigated in this proceeding and once again Intervenors seek to challenge here findings by the Board that such planning is unnecessary. See 21 NRC 644, 858-868. Hence, this part of Contention Ex 22 should be rejected.

None of the other parts of Contention Ex 22 should be admitted for similar reasons. For example, some parts of Contention Ex 22. such as (C), availability of bus drivers; (G), evacuation of hospitals; and (D),

and (E), relocation center issues have been remanded to the Board (See ALAB-832 23 NRC 135, 149-163) and are available for consideration in other parts of this litigation and should not be admitted for hearing in connection with the exercise. (see discussion regarding Contention Ex 16, infra.) Still other parts of the contention (F), shadow evacuation would occur; (H), the number of buses needed; (I), number of impediments to be expected; and (K), . congregate care centers have already been litigated. 21 NRC 655-71, 817-827, 810-11; 22 NRC 419-22.

1 Finally, Contention Ex 22.J alleging that telephones would overload should be summarily rejected. Intervenors were specifically barred from

raising this contention when they waived their right to litigate this issue as decided by the Board in 18 NRC 334, LBP-83-57, and upheld by the Appeal Board at 20 NRC 1102, ALAB-788. Intervenors provide no basis

- - . , - . - - - , - -- , , , ~ - - - - - - - , , - - , ----,,-nee---

- for the assertion that FEMA's conclusions regarding the adequacy of the telephones are inaccurate and they fail to make the necessary showing that the exercise revealed a fundamental flaw in the Plan in this regard.

E. Contentions Ex 23-32 (Intervenors Part V, " Areas Requiring Corrective Action Constitute Fundamental Flaws")

Although Contentions Ex 23-32, set out minor deficiencies or areas requiring corrective action, they do not demonstrate fundamental flaws in the LILCO Plan within the meaning of CLI-86-11. See III.B.1, infra. In each case the Intervenors have failed to set forth a basis on which to determine that what FEMA classified as an " Area Requiring Corrective Action" was a fundamental flaw within the meaning of CLI-86-11. They each appear to be easily correctable, minor or ad hoc problems occurring on the exercise day and thus are not fundamental flaws. See Shearon Harris, 22 NRC at 909-12. Each of these contentions should be rejected.

Further, some of these contentions also fail as they involve either remanded issues or questions of legal authority which are being considered in other parts of this litigation. Specific objections to all of these contentions are set forth below.

Contention Ex 23 asserts that there was a delay in correcting the error of reporting extrapolated dose data as actual measurements.

Ilowever, no basis is given upon which it could be concluded that this constitutes a fundamental flaw in the LILCO Plan. A bald allegation that a matter is a " fatal flaw" does not supply a basis on which to premise a contention. The FEMA recommendation regarding this suggests the LERO

reporting procedures be reviewed to ensure proper coordination and proper reporting, but FEMA did not identify this as a deficiency that would preclude a findings of reasonable assurance that protective mea-sures can and will be taken.

Contention Ex 24 again repeats the assertion in Contentions Ex 15. A.

E and 18. A regarding the exclusion of the siren system test from the exercise. The failure to perform a test the siren system does not show a fundamental flaw in the LILCO emergency plan itself. To the extent that this contention might raise questions concerning legal authority issues, it is outside the scope of this proceeding and does not present a litigable issue in this proceeding.

Contentica Ex 25 asserts that a delay in the verification of a road impediment demonstrates a fundamental flaw in the Plan. Again, this should not be admitted as a separate contention, since it fails to '

demonstrate any fundamental flaw in the LILCO Plan. It is not even alleged that this delay constitutes a fatal flaw in the plan. Further, this delay in verification of a roadway impediment is actually recited as part of ,

the basis for Contentions Ex 41.B and 42. A.F and is redundant.

Contention Ex 26 simply repeats the assertion in Contention Ex 16.F.

g and 18.C(v) that the failure of more than one school district to participate in the exercise demonstrates a fundamental flaw. in the Plan.

This contention should be rejected for the same reasons as set forth in response to Contentions Ex 16,17 and 18, supra. Further, this matter appears to be relevant to the matters remanded by Commission in CLI-86-13, concerning " realism" rather than to the matters herein.

l

Contention Ex 27 asserts that bus drivers have had no training.

This matter is also cited as a basis for Contention 50.G. Hence, this contention goes to the training issue cited in Contention Ex 50 and it should not be admitted as a separate contention. Further this matter is encompassed within the matters the Appeal Board remanded in ALAB-832.

23 NRC 152-154.

Contention Ex 28 similarly asserts that all ambulette drivers are not trained. However, the contention fails to provide a basis for demonstrating a fundamental flaw in the Plan. In addition, these matters are also cited as a basis for Contention Ex 50.G. Thus this contention also fails to provide any basis for its admission as a separate issue in this proceeding.

Contention Ex 29 asserts that road crews were not dispatched promptly to aid in removal of a roadway impediment. To the extent this alleges that the Plan is inadequate as it does not provide sufficient time for mobilization of road crews, it appears to be proper. However, this contention is similar to Contention Ex 25 and again this " deficiency" is cited as part of the basis for Contention Ex 41. Hence, the response to that contention applies equally here. As this contention is redundant to that contention, and as it fails to raise any new issues, no basis is provided for its separate admission into this proceeding.

Contention Ex 30 asserts that an area requiring corrective action identified by FEMA in the Post Exercise Assessment involves the delay in dispatch of a LILCO bus driver to simulate the evacuation of children from the Ridge Elementary School. FEMA's recommendation in this regard notes that the dispatcher should be provided with trained staff support

_. ~. . . . _ _

so that bus drivers can be dispatched in a more timely manner; but it does not identify this as a fundamental flaw in the Plan. As set forth in 4

the general objections, while such a delay may have occurred in the performance of the exercise, it is not sufficient in and of itself to demonstrate the fundamental flaw defined by the Commission as constituting an admissible contention. Contention Ex 30 should be rejected.

Contention Ex 31 similarly asserts that monitoring of evacuees at the relocation center took too long. Again , as with Contention Ex 30, the contention fails to demonstrate a fundamental flaw. FEMA's recommendation goes to improvements in training but fails to identify this as a fundamental flaw in the plan. No basis is given to conclude this is i

a fundamental flaw in the Plan. While the actual performance of monitoring c'uring the exercise may not have been timely, this did not reveal any deficiency in the Plan, especially given that this delay actually violated prxedures specified in the Plan. Contention Ex 31 should be -

rejected.

f Contention Ex !.2 asserts that there are no letters of agreement with congregate care centers identified in the LILCO Plan. This issue wen previously litigated (see 22 NRC 410, 423 (1985)) and Intervenors provide no basis for relf tigation. The FEMA recommendation suggests the two centers used during the exercise be added to the list in the LILCO Plan, but there is no basis provided here for the assertion that these constitute the only congregate care centers identified in the Plan. Contention Ex 32 l should not be admitted.

. . F. Contentions Ex 33-34 (Intervenors Part VI, " Fundamental Flaws Relating to Notification")

Contention Ex 33 asserts there was a delay in notification of offsite authorities , including Suffolk County, the State of New York, Nassau County and the State of Connecticut, of an emergency at Shoreham.

, Again intervenors assert the LILCO players violated procedures in the LILCO Plan and hence, the performance of LERO during the exercise fcils to provide any basis for finding this a fundamental flaw in the Plan. As Intervenors recognize, the State of Connecticut and Nassau County did not participate in the exercise and thus the lack of a demonstration of the LILCO capability to notify these authorities cannot form the basis for a f

contention in this proceeding (see discussion regarding Contentions Ex 15-19, " Limited scope of the exercise").

Contention Ex 34 cites specific instances where route alert drivers were delayed, and thus the backup notification procedures in the Plan are insufficicpt to comply with the regulatory requirement of prompt public notification. To the extent this contention alleges a deficiency in the Plan in that it fails to provide sufficient time to alert the public in the event of a siren failure, it appears proper. Ilowever, this contention also forms part of the basis for Contentions Ex 50.C and 50.E regarding l flaws in the training program, and this matter should not be the subject of several contentions.

,, - - , - - - - - - - , - - , - - . -, ,-----,--w , ,m., - , - - r - - , . m.n,, ,

G. Contentions Ex 35-37 (Intervenors Part VII -

Protective Action Recommendations (PAR's))

These three contentions assert that the exercise demonstrated fundamental flaws in the LILCO Plan with respect to various protective action recommendations either by virtue of the failure of LERO personnel to obtain information or because of deficiencies cited in the FEMA exercise report .

Certention Ex 35 asserts that LERO personnel did not make indepen-dent assessments , evaluations or judgments concerning protective action recommendations (i.e. , they failed to perform tasks). This assertion is further broken down into four subparts: Subpart A asserts that LERO personnel failed to obtain data necessary to make independent judgments regarding onsite recommendations; Subpart B asserts that LERO personnel failed to analyze PAR's of the onsite staff; Subpart C asserts that LERO perr,onnel failed to develop independent PAR's from onsite staff; and Subpart D asserts that LERO personnel failed to obtain data. (Subpart D is redundant in that is it similar to Subpart A).

This contention should be rejected since Intervenors have simply set out a few isolated discrepancies found by FEPIA at the exercise in an attempt to challenge LERO's dose assessment capabilities. Intervenors have not asserted that the LERO PARS established during the exercise were wrong given the scenario data. In fact, FEMA specifically found that the LILCO onsite and offsite organizations " demonstrated good Judgment in making correct PAG determinations," and that the LERO PARS "were consistent with the EPA PAG's for child thyroid dose which was the appropriate dose pathway for this exercise scenario." FEMA Report at

, . - . _ , _._,..,..v_ _ _ _ _ ,

4 28 -

33. E No basis is given to conclude that the exercise demonstrated any fundamental flaw in the LILCO plan. See Shearon Harris, 22 NRC at 909-10.

Contention Ex 36 asserts that LERO personnel made PAR's without any baels and failed to perform necessary dose projections. Essentially, Contention Ex 36 is similar in nature to Contention Ex 35. A. B and D and in that regard Contention Ex 36 is redundant. In any event, this 4

contention should not be admitted for the reasons advanced in connection with proposed Contention Ex 35.

Contention Ex 37 asserts that the LERO players failed to recommend or implement ingestion pathway PAR's and LERO personnel failed to perform the following actions set out in the Subparts to Contention Ex 37:

A. Failure to extend PAR regarding milk-producing animals beyond 10 mile EPZ D. No PAR's for other than cows (i.e. pigs, lambs, ducks, etc.)

12/ In any event the fellowing portions of proposed Contention Ex 35, at

, page 89, should be stricken:

. . . which contemplate that command and control decisions, including protective action recommendations, will be made by

- officials of State and local governments, and not by the ifcensee.

Additionally, the citation to LDP-85-12, also in the first paragraph

, of the proposed Contention (at 89), should be stricken. For the reasons set out in opposition to Contentions Ex 1-7 (the " legal authority" contentions), and to Contentions Ex 8-14 (the " realism" contentions), the argument that only state or local governments can a make command and control decisions is contrary to the basis of the Shoreham exercise litigation. See CLI-86-11 and CLI-86-13. If 1 Intervenors mean by the words quoted above to raise a conflict of interest contention, that issue, as established by their own citation

to LBP-85-12, is on appeal and, accordingly, outside the scope of

this litigation.

4

. - ~ - , . - - , ---------,_,,,,e, - - - ~ ~ - - - - ----,r. - ,,---e e - ,nr- , - , - - - -, , _ - + - , - + , - - -

. C. No PAR's regarding drinking water, fruits and vegetables D. LERO personnel did not complete " Ground Deposition Calculation Worksheet" For the reasons more fully discussed in response to Part III of In-tervenors Contentions in connection with Contentions Ex 15.I and 16. A, this contention involves matters which are beyond the scope . of the exercise.

The Intervenors state that the exercise was wrongly limited to dairy animals within the 10 mile EPZ. I!owever, there is no allegation in t Contention Ex 37 that in view of the time frame postulated for the exercise , the r:casures taken with respect to the ingestion dose were inadequate. In short, there is no allegation, much less a specific one 1 supported by basis, in Contention Ex 37 (or in Contentions Ex 15.I and i 16.A) dealing with the extent of LILCO's response to the facts and circumstances of the exercise scenario. Contention Ex 37 should be excluded.

II. Contentionc Ex 38-30 (Intervenors Part VII -

Public Information)

, Proposed Contentions Ex 38 and H assert that the exercise demon-strated fundamental flaws relating to public inforriation both because of events which occurred or failed to occur at the Emergency News Center (ENC), as detailed in the FEMA Report (Contention Ex 38) and with the way LILCO dealt with rumore or responded to inquiries from the public.

• . Both ~ Contentions are divided into subparts some, es noted below, being redundant to other subparts. The Contention Ex 38 subparts are au follows:

A. The first press briefing was not timely - (This is redun-dant to Contention Ex 38.G)

L. A press release was not timely or accurate - (this is also

}. redundant to Contention Ex 38.G)

C. A press release was not timely distributed - (this is j redundant to Contentions Ex 38. A, G)

D. There was insufficient copying capability at the ENC

, E. There were an inadequate number of maps and displays T. Extrancous information of copica of EBS messages given 4

to the press should have been deleted i G. Press releases were not ; timely and not accurate (this is redundant to Contention Ex 38. A)

II. There was a delay in delivering evacuation press releas-es to the media I. The media was not informed regarding I:I tablets and they were requested not to print the information J. LERO personnel did not respond satisfactorily Ngarding i

evacuation information, and did not provide information regarding traffic conditions, evacuation of the water portion of the EPZ or a PAR for a correctional facility in the EPZ K. Therc was a delay in transmitting information from the EOC to the ENC L. There was inaccurate information regarding removal of an impediment on the road - (gravel truck)

P.f . The ENC had no information regarding the fuel truck impediment

) N. LERO personnel misstated facts (They said the site area

emergency was declared at 8

23 (instead of 8:19) and that the plant shutdown occurred at 5:15 instead of 5:15 O. Press releases 4 and 5 were received at 8:45 and 9:05 and not distributed until 9:31 i

• P. Rumor Control was ineffective (this is redundant to Con-tention Ex 39)

Q. Revision 7 will not resolve any of these deficiencies Contention Ex 39, involving an alleged lack of effective rumor con-trol and appropriate responses to inquiries from the public, is also bro-ken down into several subparts as follows:

A. LILCO District Offices and call boards had incorrect or superseded information (1 - v - logs showed information several hours old in several locations)

B. Prompt responses to rumor messages were delayed, gen-erally 30 minutes or longer (1 - xiii give examples of delays in responses)

C. Rumor Control personnel were unable to provide accurate informction or demonstrated " poor judgment" in 4 responding. The following examples were given.

i VMue judgment 11 judgment call 111 inaccurate information to New York Times inquiry

, (deley)

) iv delcyed data provided y not poor judgment -

insecurate (delayed) information vi delayed information vil lack of help for transit dependent population These contentions lack a showing of any nexus between the asserted deficiencies in Public information found by FEMA and a fundamental flaw in the LILCO Plan. An examination of each deficiency, without such a showing, shows that they are not of a nature that would lead to the con-clusion that they demonstrate a fundamental flaw in LILCO's plan. How-ever, it is arguable that the alleged deficiencies, taken as a group, would tend to show that there may be a fundamental flaw in the LILCO Plan 4

,,,-,--,~.--.w.--------e,---,---., - - , - - , . . - - ----,,-..-,--------------.-n

~O regarding public information and rumor control. In sum, while the parts of Contentions Ex 38 and 39 do not meet the basis requirement of the Commission's regulations, it is . arguable that the identified deficiencies taken as a group may constitute a fundamental flaw in LILCO's plan re-garding public information (i.e. Information available at the ENC 'and a lack of effective rumor control). On that basis the Staff does not object to admission of Contentions Ex 38 and 39 provided Intervenors amend the contentions to remove the redundancies identified above.

I. Contentions Ex 40-45 (Intervenors' Part IX, " Flaws Relating to Implementation of Protective Actions")

i 1

Contentien Ex 40 asserts that the exercise demonstrated that Traffic i

Guides were ineffective in a number of particulars, some of which may form the basis for an admissible contention, others of which clearly do not. Specific responses on each subpart of this contention are set out below.

Contentions Ex 40. A and B asserts there was a delay in the mobilization of sufficient traffic guides and a delay in th e time for mobilization of a sufficient number of traffic guides. To extent these 4

subparts of Contention 40 alleges that the plan is inadequate as it does l not provide sufficient time to mobilize and dispatch of traffic guides to aid those who were advised to evacuate, they appear to be proper contentions. However, to the extent these subparts may address a 1

deficiencies in the performance of the plan , they do not show a fundamental flaw in the plan.

f Contention Ex 40.C asserts that the emergency information disseminated to the public was inaccurate, in that traffic guides were not i

. in place as people would expect in listening to the broadcast. Again, to the extent it alleges that this demonstrates an error in the plan, in

, contrast to performance of the exercise, the contention appears proper.

Additionally, this contention is cited as part of the basis for This matter should not be the

~

Contention Ex 50.F concerning training.

. subject of two contentions.

Contention Ex 40.D refers to Contention Ex 44 and asserts that substantial numbers of people would evacuate well before the official recommendation to evacuate , and thus raises the " evacuation shadow phenomenon." This issue has previously been litigated in this proceeding (see 21 ITEC 644, 670-71) and Intervenors provide no basis for the relitigating this issue here, i

Contention 40.E asserts that the proposed changes to the LILCO Plan contained in revision 7 of the Transition Plan would not resolve any of the above cited deficiencies with regard to the effectiveness of traffic j guides. This contention is premature, in that revision 7 of the Plan has i

not been reviewed at this time and is not before this board. Thus intervenors provide no basis for litigation of this contention in this i proceeding, in that this does not identify a fundamental flaw in the LILCO Plan under consideration. Also, this contention is substantially the same as Contentions Ex 38.Q and 41.E and should not be subject of several contentions.

! Contention Ex 41 asserts that the exercise demonstrated LERO's i

inability to deal with roadway impediments in a timely and effective

! manner. As with contention 40, some parts of this contention appear to form the basis for admissible contentions, while others do not make the i

necessary showing that this deficiency in performance evidences a fundamental flaw in the Plan. Specific responses to subparts of this contention are set forth below.

Contention 41. A and B_ assert there was a delay in notification and mobill::ation of sufficient numbers of road crews in a timely fashion. To the extent these subparts allege that the plan is inadequate as it does not provide the means for the timely assembly and dispatch of road crews, they appear proper. However, to the extent these subparts may address deficiencies in the performance of the plan, they do not go to show fundamental flaws in the plan.

Contention Ex 41.C and D assert the same issue raised in Contentions 40.D. 43.B and 44 regarding the likelihood of the " shadow evacuation phenomenon" and its effect upon mobilization which has been previously litigated and, as stated in response to those contentions, this issue does not provide any basis for litigation in this proceeding.

Contentien Ex 41.E is repetitious, in that it asserts the same silegation set forth in Contentions 38.0 and 41.E, that is, that the proposed changes to the LILCO Plan in revision 7 would not correct any of these cited deficiencies. This contention is premature and should not be admitted.

Contention Ex 42 asserts that the LERO personnel responded inappropriately to the free play messages. This contention fails to provide any basis for litigation as it does not show any nexus to the fundamental flaw criteria set forth by the Commission. This contention is

r

• also redundant to other contentions .as is more fully set forth in response to each of its subparts below.

Contention Ex 42. A asserts the LEllO personnel were unable to deal effectively with roadway impediments as set forth in Contention 41. This contention is also cited as part of the basis for Contention Ex 50. A-E regarding training. This contention fails to raise any new issue, and Intervenors provide no basis for its separate admission in this proceeding. These matters should not be the subject of several contentions.

Contention Fx 42.B asserts a delay ifn the arrival of a bus to evacuate school children demonstrates a flaw in the Plan . This contention, however, like Contention 42. A forms part of the basis for Contention Ex 50 regarding training. Again, the contention lacks basis in that it fcils to demonstrate any fundamental flaw in the Plan, rather than a deficiency in the performance of the exercise. Additionally, these matters should not be the subject of several contentions.

Contention Ex 42.C asserts that the rumor control staff responded ineffectively. It is redundant to Contention Ex 39, and should not

provide the basis for a separate contention.

! Contention Ex 42.D asserts that traffic guides were ill-informed or not sufficiently educated and trained. This contention, however, fails to address any deficiency in the Plan. Also this contention is part of the basis for Contention Ex 50 and it should not be the subject of a separate contention.

l Contention Ex 42.E asserts that bus drivers were incapable of j carrying out their assigned responsibilities because they got lost or went l

l

l l

to the wrong place. This contention fails to have any nexus to the fundamental flaw criteria established by the Commission. It also forms part ' of the basis for Contention Ex 50. A and E. These matters should not be the subject of a separate contention.

Contention Ex 42.F asserts that LERO did not mobilize quickly enough with regard to traffic guides, road crews and bus drivers. Each of these assertions, however, are raised in other contentions. For example, the mobilization of traffic guides is cited in Contention Ex 40. A ,

the mobilization of road crews is cited in Contentions Ex 29 and 41.B and the mobilization of bus drivers is cited in Contention Ex 30. Hence, this contention is redundant and fails to raise any new issues. It should also be rejected for the reasons given in answer to those contentions.

Contention Ex 42.G asserts that ENC personnel performed inadequately, nr. issue raised in Contention Ex 38. IIence, this contention does not raise any new issues here, is repetitious, and should not be admitted.

Contention Ex 43 asserts that the exercise demonstrated that the plans to evacuate transit-dependent population by bus could not be implemented because of delays inherent in the mobilization of bus drivers under the pihn. Some parts of this contention may form the basis for admissible contentions, while other parts fail in this regard. Specific responscs are set forth below.

Contention Ex 43. A asserts that EDS messages were inaccurate -

regarding the availability of buses. To the extent that this part of the contention alleges that the exercise showed the plan for the evacuation of 1

the transit-dependent could not he implemented, it is admissible. To the i

n

- - , , .,n ._ - , , -, - - - - , , -

4

a *I,x O

extent the contention alleges deficiencies in the exercise, however, . it does not show a fundamental f!aw in the LILCO plan. These matters are also citeN as part of the basis for Contention Ex 50.F regarding training and the performance of the EMC. They should not be admitted as the O subject of separate contentions.

Contention' Ex 43.B simi}arly asserts that the early evacuation of 7

substantial numbers of people (the " evacuation shadow phenomenon")

[6 m would impact the availability of buses. This issue is raised in

,o 1 - Contention Ex 40.G, 41.C D, and 44 and as set forth in response to tu

( those contentions, this issue has already been litigated and may not be i s i, admitted for litigation again.

~

.h Contention Em.44 asserts that the exercise demonstrated a V. ,

1 a

fundamental flaw fn the Plan in that LILCO was unable to provide accurate, clear, , consistent and non-conflicting information to the public.

Thus, the resulting; " evacuation shadow phenomenon" would impact various 4

aspects of the plan, such as the number of evacuation vehicles needed (44. A) the number of relocation or reception centers needed (44.B) and the level of sta'ffinir nesded (44.C). Additionally, the contention asserts that the " shadow eNacuation phenomenon" would impact the notification and mobill::ation of emergency workers (44.E) and the registration and

, ' monitoring of evacuees (44.F). This contention cites as its basis i'

Contentions 38, 39, 40.C D, 42.D, 43. A and 45.

The issue of whether there would be clear, concise and unconflicting emergency information is dependent upon the "best efforts" the State and l  ; local governments would make in an actual emergency to activate sirens, provide for the emergency broadcasting system messages, and assure that t

i

.. l, , _ , ,-. . , . . _ _ . _ _ .

. clear recommendations are given to the public concerning protective actions . These are matters the Commission has remanded in connection with the " realism" argument. CLI-86-13, at 12-14. As in the case of proposed Contentions Ex 8-14, consideration of Contention Ex 44 should be deferred pending subsequent consideration of the issues remanded in CLI-86-13.

Contention Ex 45 asserts that in some instances LERO failed to obtain, process and transmit data in an accurate or timely manner. Each of these instances. is addressed elsewhere. Contention Ex 45. A cites a failure to respond to a notice regarding road impadiments in a timely manner. This is addressed in Contentions Ex 25, 29, 38.L 42. A and F.

Contention Ex 45.B cites failure to respond appropriately regarding the evacuation of a school . This is addressed in Contention Ex 42.B.

Contention Ex 45.F addresses the performance of personnel in the ENC which is also the subject of Contentions Ex 38 and 39 or impermissibly relates to the scope of the exercise.

Contention Ex 45.C cites the failure to properly notify the FAA and the Long Island Railroad. No basis is given for concluding that this is a fundamental flaw in the LILCO plan which could not easily be corrected.

Similarly, the matters covered in Contention Ex 45.E dealing with how messages are taken for the LERO Director does not show a fundamental flaw not capable of easy correction. Contention Ex 45.G relates to " Areas Recommended for Improvement" at Staging Areas in the FEMA Evaluation.

FEMA does not classify these matters as even deficiencies, and the intervenors supply no bases upon which they could be judged fundamental flaws. Similarly, the allegations in Contention Ex 45H concerning the

• correction of raessages dealing with actions of Suffolk County Police officers in not providing aid, do not show a fundamental flaw in the LILCO plan.

In sum, none of the matters addressed in Contention Ex 45 should be admitted as they are either redundant to other cantentions or do not provide a basis to conclude that the LILCO plan is fundamentally flawed.

J. Contentions Ex 46-49 (Intervenors Part X -

Post-Evacuation Services For Evacuees These contentions assert that there are fundamental flaws in LILCO's Plan because of deficiencies in Post-evacuation services for EPZ evacuees.

Contention Ex 46 asserts a fundamental flaw in the LILCO Plan in that the implementation of the Flan is dependent upon the availability of the Nassau Coliseum as the relocation center for evacuees, when, in fact, thet facility cannot be used for that purpose. As discussed, supra, in connection with Part D it is true that the Nassau Coliseum is not available 1

l to LILCO for use as a relocation center. Ilovrever, LILCO has advised the Commission that it is designating replacement relocation centers.13/

Specifically, LILCO states that it will shortly designate other relocation facilities in lieu of the liassau Coliseum in Revision 8 to the Shoreham emergency plan. LILCO further states that this alternative will ensure that the liassau Coliseum need not be relied upon. Accordingly,

-13/ See LILCO's Response To Intervenors' Supplemental Answer To LILCO's Petition For Review Of ALAB-832 and their Motion for Leave to File Same, dated August 4,1986.

assuming arguendo that Contention EX 46 -is otherwise admissible, the ellegations contained in the proposed contention are moot since the Nassau Coliseum is no longer relied on by the LILCO plan as a relocation center.

This contention should not be admitted.

Contention Ex 47 asserts a fundamental flaw in the LILCO Plan be-cause LILCO failed tc demonstrate the ability to register, monitor and decontaminate evacuees from special facilities who are transported to re-ception centers other than the Nassau Coliseum. This contention should not be admitted.

In addition to the Staff's general objection regarding a lack of a nexus between the asserted deficiencies and a showing that there is a fundamental flaw in the LILCO plan, this contention is in part duplicative of Intervenors Contentions E:: 15.K and 22.E. More importantly, the thrust of Contention Ex 47 is directed to a discussion of why LILCO's proposed Revisicn 7 to its plan does not cure the noted deficiency (set out ct pages 148-140). This significant aspect of the proposed contention is irrelevant at this time to litigation of alleged fundamental flaws found in the LILCO Plan as a result of the exercise. Ylhile Revision 7 has been submitted to the NRC by LILCO and has been forwarded by the Staff to FEMA for review , that review has not yet been completed. Thus, Devision 7 is irrelevant to this proceeding. Additionally, Intervenors by means of proposed Contention Ex 47 are seeking to relitigate the issue of protective action recommendations for hospitals, by, in effect , simply asserting that the evacuation option was not discussed with hospital officials and actually implemented during the exercise. This issue is pending before the Commission as a result of LILCO's petition to review i

i

ALAB-832, and it is ' inappropriate for litigation in ' this exercise proceedings. For the foregoing reasons Contention Ex 47 should not be admitted for litigation.

Contention 48 asserts a fundamental flaw in the LILCO Plan in that it falle to include arrangements for medical services, facilities, personnel and equipment .to enre for contaminated injured individuals. The Contention is divided into four subparts: A) Lack of agreements. with hospitals listed in the LILCO Plan; B) Lack of training of medical personnel at the hospitals identified in the LILCO Plan; C) the Plan lacks provisions for transporting contaminated injured individuals to the hospitals listed in the Plan; and D) the Plan does not include procedures for the hospitals relied upon to provide medical services and treatment to contaminated individuals. The Staff opposes admission of this contention on the basis of the Commission's Statement of Policy " Emergency Plcnning" 49 Fed. Ecg. 20892 (May 21,1985).

10 C.F.R. I 50.47(b)(12) requires that " arrangements are made for medical services for contaminated injured individuals." Clarification of this provision was provided by the Commission on two occasions. Initial-ly, the Commission determined (a) that this provision applied to both on-site and offsite individuals; (b) that " contaminated injured individuals" includes seriously irradiated memberc of the public; and (c) that the re-quirement for adequate medical arrangements for such individuals would i- be satisfied by providing a list of area facilities for treatment of such

! individuals. Southern California Edison Co. (San Onofre Nuclear Gener-ating Station, Units 2 and 3), CLI-83-10, 17 NRC 528, 536-37 (1983).

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Subsequently, in Guard v. NRC, 753 F.2d 1144 (D.C. Cir. 1985), f 1

the Court of Appeals vacated a portion of the Commission's interpretation of this provision, to the extent the Commission had ruled that providing a list of treatment facilities constitutes adequate " arrangements" for medical services for offsite individuals exposed to dangerous levels of radiation.

M . at 1146, 1150. The Court afforded the NRC substsJitial flexibility in its reconsideration of this matter, to pursue any rational course which might range frora reconsideration of the scope of the phrase " contaminated injured individuals" to imposition of " genuine" arrangements for members of the public exposed to dangerous levels of radiation. Id., at 1146.

In response to the Guard decision, the Commission issued a " State-ment of Policy" providing interim guidance to Licensing Boards and the Staff, for use until the Commission " determines how it will respond to the Courts' remand. " Statement of Policy, " Emergency Planning," 50 Fed.

Ileg. 20892, 20893 (F. fay 21, 1985). As set fortin in the Commission's Statement of Policy, "until the Commission concludes its Guard remand and instructs its boards and its staff differently," it is reasonable to limit contentions on this subject "to issues which could have been heard before the Court's decision in Guard v. NRC, M., at 20854. Thus, the present test of the validity of emergency response plans is to see that there is a listing of area medical facilities for the treatment of " contaminated injured" on-site and off-site individuals, including seriously contaminated members of the public.

i

In addition to the foregoing, Contention Ex 48 is inadmissible be-cause it seeks to raise an issue already rejected by this Board.

Contention Ex 49 involves evacuee registration and monitoring.

Subpart A of the contention questions the number of evacuces who could be monitored and, if necessary, decontaminated in a timely manner.

Subptrt B faults the lack of participation during the exercise of INPO and other entities relied on by the LILCO Plan as alternates in performing monitoring and, if necessary, decontamination. Subpart C involves the number of people who will appear at a relocation center for monitoring.

This contention is related to the Licensing Board's requirement that LILCO be required to plan for monitoring and, if necessary,

, decontamination of cvacuees who appear at c relocation for that purpose and not for sheltering purposes. LILCO has appealed this requirement and the matter is pending before the Appeal Board. b Accordingly, it would be inappropriate to admit this contention in the exercise portion of this proceeding.

-14/ Relying on the Commission's policy statement, supra, this Board denied Intervenors' motion to admit a new contention. Memorandum and Order Denying Suffolk County's and New York State's Motion to Admit New Contention (August 21, 1985). This ruling was upheld by the Appeal Board, see Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAD-832, 23 NRC 152 (1986), and is now pending before the Commission as part of Intervenors' Petition for Review of ALAB-832.

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See NRC Staff Views On the Effects of Nassau County Board of Supervisors Resolutions Relating to Nassau Coliseum filed on August 11, 1966.

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K( Contention Ex 50 (Intervenors Part XI - Training)

This contention asserts the exercise demonstrated that LILCO's Plan is fundamentally flawed because members of LERO, as well as the person-nel of various organi::ations upon which LILCO relies, were unable to car-ry out effectively or accurately the LILCO Plan because of inadequate training. This contention should not be admitted for litigation in ' this proceeding. In most instances it shows oniv minor or ad hoc deficiencies that could be casily corrected and not fundamental flaws. See Shearon IIarris , 22 NE C 900-12; see also Shoreham, ALAB-737, 20 NRC 1142-43 (proof of individual deficiencies in a program does not show that the program is flawed.)

The contention is redundant to other proposed contentions and is a catch-all for alleged training deficiencies since , as acknowledged by Intervenors, the asserted errors committed during the exercise, which al-though numerous appear to be minor and correctable, are identified

elsewhere in Intervenors' proposed contentions as follows

(letter refer-ences below are to subparts of Contention Ex 50):

A. Free play events and actions - Contentions Ex 38, 39, 41 and 42 B. Implementation of the plan and procedures - Contentions Ex 33, 35-39, 41, 42, 45 and 49 C. Communicating and obtaining data -

Contentions Ex 34-30, 41, 42 and 45 D. LERO personnel following directions - Contentions Ex 41, 42 and 45 E. Lack of independent judgment on Part of LERO workers

- Contentions Ex 34-43, and 4_55 F. ENC performance in dealing with the media - Contentions Ex 37, 38, 40.C and 43. A

O G. Training of support organizations - Contentions Ex 27, 2_8 H. Training regarding dosimetry, etc. - Contentions Ex 42 and 45 Accordingly, the Staff response to the indicated referenced conten-tions set out above are equally appliccble to proposed Contention Ex 50.

A specific response to each subpart of proposed Contention Ex 50 follows:

Contention Ex 50. A. This subpart is duplicative of Contentions Ex 38, 39, 41 and 42 and all these Contentions should be consolidated, if admitted at all.

Ifowever, this subpart, even if consolidated lacks specificity and basis. Intervenors have not alleged defects that would demonstrate that the training program is flawed conceptually. Moreover, a number of the ARCAs cited appear to bear no relationship to the LILCO training program.

Contention Ex 50.E. This subpart, which is duplicative of Contentions Ex 33, 35-39,41,42,45 and 49 and also lacks specificity and basis. Intervenors simply allege that LILCO's training program has been ineffective in training LERC personnel to follow and implement the Plan and Procedures and cite contentions, deficiencies, and ARCAs as supporting that conclusion. FEMA's Assessment provides no basis for the contention that LILCO personnel lacked the basic knowledge and informetion to implement the plan and procedures or that LERO personnel, overall, failed to follow and implement the plan and procedures. In fact, the conclusion that can be drawn from the FEMA Assessment is that, overall, LERO personnel adequately implemented the LILCO Plan and

. Procedures. In addition, a number of the ARCAs cited by Intervenors do not appear to relate to training and, therefore, could not provide a basis for the contention in any event.

Contention Ex 50.C. This subpart is redundant to Contentions Ex 34-39,41, 42 and 45; thus is inadmissible. This subpart also lacks specificity and basis. Intervenors have not alleged facts in support of their allegation but only cross-reference other contentions, deficiencies, anc' ARCAs. The cited ARCAs and deficiencies individually do not constitute fundamental flaws and many do not even appear to be related to LILCO's training program.

Contention Ex 50.D. This subpart is redundant to Contentions Ex 41,42.D and 4_5 5 and may not be admitted. Additionally, the subpart lacks basis and specificity. Intervenors' references to other contentions and to deficiencies in the FEMA Report are not sufficient to meet Intervenors' burden of presenting the contention with adequate specificity. Moreover, the individual references to deficiencies and ARCAs do not even appear to support the contention.

Contentien Ex 50.E. This subpert in redundant to Contentions Ex 34-43, and 45 and should not be admitted. The subpart however, lacks specificity and basis. The individual FEMA conclusions cited do not appear to support the assertions made by Intervenors.

Centention Ex 50.F. This subpart is redundant to Contentions Ex 37, 38, 40.C and 43. A and should not be admitted. The issue of the provision of timely, recurate, consistent, and non-conflicting information to the public is addressed in Contention Ex 38. Additionally, this

. subpart lacks basis and specificity. References to the FEMA Assessment do not appear to support the contention.

Contention Ex 50.G. Subpart Ex 50.G is redundant to Contentions Ex 27 and 3, and should not be admitted. In addition, this subpart lacks specificity and basis.

Contention Ex 50.H. The proposed subpart which is redundant to Contentions Ex 42 and 45, lacks basis and specificity. Intervenors fail to point to anything in the exercise which tends to show the existence of the asserted problem advanced by Intervenors and they have failed to state an explanation or documentary authority for the factual assertions they advance. Contention Ex 50.H should be rejected.

Contention E:: 50.I. Subpart I of Contention Ex 50, asserts that LILCO's proposed Revision 7, submitted by LILCO to the NRC on June 20, 1986, will not serve to correct the flaws revealed by the exercise. There is no basis for this assertion since Revision 7 to the LILCO Plan has not been reviewed by FEMA and such Revision and FEMA review may or may not be a focus of the exercise litigation.

In sum, Contention Ex 50 should not be admitted for litigation in this proceeding.

b V. CONCLUSION For the reasons set out above, none of the Intervenors' proposed emergency exercise contentions should be admitted except for Contentions Ex 34, 38, 39, 40. A B, C 41. A, B and 43. A, as limited in this response.

Respectfully submitted, M /

Bernard M. Bordenick Counsel for NRC Staff Dated in Bethesda, Maryland this 15th day of August,1986.

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l UNITED STATES OF AMERICA '

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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 herchy certify that copies of "NRC STAFF RESPONSE TO PROPOSED EMERGENCY PLANNING CONTENTIONS RELATING TO THE FEBRUARY 13, 1986 EXERCISE (Filed By Suffolk County, The State of New York and the Town of Southampton)" in the above-captioned proceeding have been served on the following by deposit.in the United States mail, first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, or as indicated by a double asterisk by messenger, or as indicated by a triple asterisk by e:: press mail, this 15th day of August,1986:

Morton B. Margulies, Chairman" Fabian G. Palomino, Esq.***

Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber U.S. Nuclear Regulatory Commission State Capitol Washington, D.C. 20555 Albany, NY 12224 Dr. Jerry R. Kline" W. Taylor Reveley III, Esq.*"

Administrative Judge Hunton & Williams Atomic Safety and Licensing Board 707 East Main Street U.S. Nuclear Regulatory Commission P.O. Box 1535 Washington, D.C. 20555 Richmond, VA 23212 Mr. Frederick J. Shon" Jonathan D. Feinberg, Esq.

Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, D.C. 20555 Albany, NY 12223 i

=

1 o Stephen B. Latham, Esq.***

John F. Shea, III, Esq. Herbert H. Brown, Esq.**

Twomey, Latham a Shea Lawrence Coe Lanpher, Esq.

Attorneys at Law Karla J. Letsche, Esq.

P.O. Box 398 Kirkpatrick & Lockhart 33 West Second Street 1900 M Street, N.W.

Riverhead, NY 11901 8th Floor Washington, D.C. 20036 Atomic Safety and Licensing Board Panel

• Donna D. Duer Esq.*

U.S. Nuclear Regulatory Commission Attorney Washington, D.C. 20555 Atomic Safety and Licensing Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Panel

• Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Monroe Schneider North Shore Committee P.O. Box 231 Wading River, NY 11792 Docketing and Service Section*

Office of the Secretary U.S. Nuclear Regulatory Commission Stewart M. Glass, Esq.

Washington, D.C. 20555 Regional Counsel Federal Emergency Management Spence Perry, Esq. Agency Associate General Counsel 26 Federal Plaza Federal Emergency Management Agency Room 1349 Room 840 New York, NY 10278 500 C Street, S.W.

Washington, D.C. 20472 Robert Abrams, Esq.

Attorney General of the State Gerald C. Crotty, Esq. of New York Ben Wiles, Esq. Attn: Peter Bienstock, Esq.

Counsel to the Governor Department of Law Executive Chamber State of New York State Capitol Two World Trade Center Albany, NY 12224 Room 46-14 New York, NY 10047 Edward M. Barrett, Esq. MilB Technical Associates General Counsel 1723 Hamilton Avenue Long Island Lighting Company Suite K 250 Old County Road San Jose, CA 95125 Mineola, NY 11501 Ilon. Peter Cohalan Martin Bradley Ashare. Esq.

Suffolk County Executive Suffolk County Attorney County Executive / Legislative Bldg. H. Lee Dennison Building Veteran's Memorial Highway Veteran's Memorial Illghway llauppauge, NY 11788 Hauppauge, NY 11788

n.

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Mr. Jay Dunkleberger Ms. Nora Bredes New York State Energy Office Shoreham Opponents Coalition Agency Building 2 195 East Main Street Empire State Plaza Smithtown, NY 11787 Albany, New York 12223 Chris Nolin Mr. Robert Hoffman New York State Assembly Ms. Susan Rosenfeld Energy Committee Ms'. Sharlene Sherwin 626 Legislative Office Building F.O. Box 1355 Albany, NY 12248 M;;$4sapequa, NY 11758 Brookhaven Town Attorney 475 E. Main Street Patchogue, NY 11772 W% /

Bernard M. Bordenick Counsel for NRC Staff