ML20214P966
| ML20214P966 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/19/1986 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | LONG ISLAND LIGHTING CO. |
| References | |
| CON-#386-772 ALAB-847, OL-3, NUDOCS 8609240120 | |
| Download: ML20214P966 (36) | |
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77:7- M DOCHETED j USNRC l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 16 9719 P3:11 ATOMIC SAFETY AND LICENSING APPEAL BOARD OFFICE er 3Ecfatiggy Administrative Judges: 00CMET;tdG A SEPvicr' BRANCS Alan S. Rosenthal, Chairman September 19, 1986 Gary J. Edles (ALAB-847)
Howard A. Wilber SERVED SEP 191986
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1)s )
)
James N. Christman, Richmond, Virginia (with whom W. Taylor Reveley, III, Donald P. Irwin, Kathy E.B.
McCleskey, and Scott D. Matchett, Richmond, Virginia, were on the briefs), for the applicant Long Island Lighting Company.
Fabian G. Palomino, Albany, New York, Karla J. Letsche, Washington, D.C., Eugene R. Kelley, Hauppauge, New York, and Stephen B. Latham, Riverhead, New York (with whom David A. Brownlee, Michael J. Lynch and Kenneth M. Argentieri, Pittsburgh, Pennsylvania, Herbert H. Brown and Lawrence Coe Lanpher, Washington, D.C., and Martin Bradley Ashare, Hauppauge, New York, were on the briefs), for the intervenors State of New York, Suffolk County, New York, and the Town of Southampton, New York.
Sherwin E. Turk and Bernard M. Bordenick for the Nuclear Regulatory Commission staff.
DECISION l The Licensing Board has rendered two partial initial decisions in the emergency planning phase of this operating license proceeding involving the Shoreham nuclear facility in Suffolk County, New York. Both decisions examined an emergency plan in which offsite emergency response I procedures would be implemented by the Local Emergency l
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Response Orgal:ization (LERO), a group composed of the applicant Long Island Lighting Company's (LILCO) personnel, federal agencies, and private contractors. In contrast with the typical emergency response plan, the Shoreham plan does not rely on county or state personnel.
In the first of its decisions, the Licensing Board resolved most of the contested issues in favor of LILCO. It also determined, however, that the applicant lacks the legal authority to implement material features of the plan, with the consequence that an emergency plan in conformity with NRC regulations cannot be carried out. In the second decision, the Board addressed the remaining issues. These were primarily concerned with the adequacy of the Nassau Veterans Memorial Coliseum as a reception or " relocation" center for the monitoring, decontamination and transferring to sheltering facilities of evacuees from the area surrounding the Shoreham facility in the event of an emergency. Although the applicant prevailed on most of those issues as well, the Board ended its decision with the declaration that the applicant's emergency response plan is
" fatally defective." The bases of this declaration were:
(1) the Board's determination in its earlier decision that LBP-85-17, 21 NRC 644 (1985).
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3 the applicant lacks the legal authority to implement its plan; and (2) the Board's belief that the opposition of both the State of New York and Suffolk County to the plan "has created a situation where at any given time it is not known whether the [p]lan would be workable."3 The applicant and the intervenors State of New York and Suffolk County took appeals from portions of both of these decisions.4 With the parties' acquiescence, we separated for expedited review the applicant's appeal on the legal authority and related questions decided by the Board in its first decision. In ALAB-818, we affirmed the Licensing Board's conclusions on those questions.5 More particularly, we determined, first, that federal law did not preempt those New York State statutes that prevented LILCO from implementing material aspects of its plan. Second, we concluded that LILCO had not demonstrated that its plan was amenable to ad hoc adoption by the appropriate governmental units in the event of an emergency (the so-called " realism" issue). Finally, we ruled that various traffic control Id. at 431.
4 In addition, the Town of Southampton appealed from portions of the second decision.
5 22 NRC 651 (1985).
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4 actions ordinarily part of an evacuation plan but which LILCO lacked legal authority to undertake were material elements of an adequate emergency response (the so-called
" immateriality" issue).
Our affirmance rendered academic the other issues presented by the various appeals from the two Licensing Board decisions. In taking review of ALAB-818, however, the Commission deferred its consideration of LILCO's appeal until we completed our review of the appeals filed by the intervenors.6 As a consequence, we promptly took up, and resolved, that appeal. We generally rejected the intervenors' attack on the Licensing Board's resolution of a score of emergency planning matters, and largely upheld the Board's determinations. However, we remanded-four issues to the Board for further proceedings.
To accord the Commission an opportunity to decide how it wished to proceed in light of our various determinations, we temporarily stayed further proceedings before the Licensing Board and announced our intention to hold in abeyance the three remaining issues raised by the LILCO appeal, pending further instructions from the Commission.8 Those issues involve (i) the monitoring of evacuees at 6
Commission Order of December 19, 1985 (unpublished) .
ALAB-832, 23 NRC 135 (1986).
0 Id. at 141-42, 162-63.
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the Nassau County Coliseum, (ii) an alleged conflict of interest by LILCO employees who occupy emergency planning roles, and (iii) the lack of a New York State emergency plan for Shoreham. In CLI-86-13, the Commission reversed our conclusions in ALAB-818 with respect to the " realism" and
" immateriality" issues and remanded the proceedings to the Licensing Board for further exploration.9 The Commission determined that state and county officials would be obligated to assist in the case of an emergency at Shoreham and that each would respond on a "best efforts" basis. In the Commission's judgment, such response "would utilize the LILCO plan as the best source for emergency planning information and options."10 On remand,.the Licensing Board must examine whether such response will adequately protect the public. The Commission also directed us to reconsider our deferral of the three remaining issues.11 To assist our effort, we asked the parties to provide us with their views as to the ef fect on the appeal of recently passed resolutions by the Nassau County Board of Supervisors.1 Those resolutions void the designation of 24 NRC (July 24, 1986).
10 Id. at (slip opinion at 14).
11 Id. at (slip opinion at 17).
Order of July 28, 1986 (unpublished) .
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the Nassau County Coliseum as LILCO's relocation center and prohibit LILCO's use of facilities in Nassau County without prior approval by the Board of Supervisors. The intervenors responded that the resolutions provide additional bases for dismissing LILCO's appeal and affirming the Licensing Board's decision that the LILCO plan is defective. LILCO and the NRC staff argued that the resolutions do not affect the issues currently before us and urged us simply to rule on LILCO's appeal.14 We have evaluated the applicant's appeal in light of the record, including the parties' responses to our inquiry.
As a threshold matter, we agree with LILCO and the staff that the appeal can be taken up now. On the merits, however, we find that we must remand two of the three issues for further clarification by the Licensing Board. We set forth our views in this regard in Sections I and III. As explained in Section II, we can nevertheless bring to a 13 Views of Suffolk County, the State of New York, and the Town of Southampton Concerning Effect of Nassau County Resolutions on LILCO's Appeal of the ASLB's Concluding Partial Initial Decision (August 11, 1986).
I LILCO's Views on the Effect of the Nassau County Resolutions (August 11, 1986); NRC Staff Views on the Effects of Nassau County Board of Supervisors Resolutions Relating to Nassau Coliseum (August 11, 1986); LILCO's Reply to the " Views of Suffolk County, the State of New York, and the Town of Southampton Concerning Effect of Nassau County Resolutions on LILCO's Appeal of the ASLB's Concluding Partial Initial Decision" (August 18, 1986).
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7 close litigation regarding the alleged conflict of interest.
On that issue, we simply reverse the Licensing Board's determination.
I.
Monitoring of Evacuees A nuclear power plant shall not be allowed to operate at levels above five percent of its rated power unless the NRC finds, in accordance with 10 C.F.R. 50. 47 (a) , that there is reasonable assurance that adequate measures for the protection of the public health and safety can and will be taken. Among other things, emergency response planning must make provision for the care of persons removed from the plume emergency planning zone (plume EPZ) should circumstances necessitate an evacuation. LILCO's emergency response plan provides for the monitoring, decontamination and sheltering of evacuees requiring such services. In reviewing the adequacy of LILCO's plan, the Licensing Board found:
LILCO has used an estimate of 20% of the population of the EPZ as the maximum number of persons who would require shelter in the event of an emergency at Shoreham. . . . The maximum population of the EPZ is 160,000, thus LILCO's planning is based on a maximum of 32,000 seeking shelter. LILCO did not justify how this number could be related to the number of persons who might seek monitoring. The Board finds that the number of persons expected to seek shelter in the event of a disaster is not necessarily the same as the number of persons who might seek monitoring in the event of a radiological accident.
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8 Ne accept LILCO's planning basis for the number of evacuees who might seek shelter, be processed through the relocation center and . . .
must thus be monitored. . . . The record is unclear as to how the Coliseum could accommodate the evacuees of the general population who will seek monitoring and processing, aside from those seeking shelter. We therefore find that LILCO's failure to plan for those of the general population who seek only monitorigg and processing constitutes a defect in the Plan.
LILCO appeals from the Board's conclusion that, in addition to planning for the number of evacuees who are likely to seek sheltering, LILCO must now estimate and plan for the number of evacuees who are likely to come to the Coliseum for radiological monitoring and decontamination alone. LILCO claims that the Board's decision must be reversed because it addresses matters outside the scope of the issues admitted for litigation and imposes an obligation not justified by,any relevant NRC emergency planning requirement or guidance. The NRC staff agrees with LILCO that the Board's determination falls outside the scope of the issues admitted for litigation. The intervenors support the Board's result.
For the following reasons, we return the matter to the Board so that it can consider in the first instance whether the issue was properly raised for litigation. First, the 15 LBP-85-31, 22 NRC at 417. See also id. at 430-31.
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' issue turns in part on the Licensing Board's intention when reopening the record -- a matter on which we have difficulty resolving the ambiguities in the record but on which the Licensing Board can obviously speak with knowledge. Second, because the issue arose on appeal for the first time, the Licensing Board has not had an opportunity to address it.
To help focus the issue on remand, we alert the Licensing Board to matters it should take into account when revisiting its earlier conclusion. We decline at this juncture to rule on LILCO's alternative argument that the obligation imposed by the Board runs afoul of applicable regulatory requirements.
The Commission's regulations governing operating
> license proceedings generally limit an adjudicatory board's findings to the issues put in contest by the parties.16 The 16 10 C.F.R. 2.760a. See also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-728, 17 MRC 777, 807, review declined, CLI-83-32, 18 NRC 1309 (1983). A licensing board may nevertheless raise and resolve "a serious safety, environmental, or common defense and security matter" on its own. Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3),
ALAB-732, 17 NRC 1076, 1112 (1983). It may do so, however, only after invoking certain special procedures. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-675, 15 NRC 1105, 1115 (1982). The Licensing Board did not invoke those procedures in this case and no party suggests that the matter of radiation monitoring for those evacuees not seeking sheltering was raised on the Board's own initiative. The issue thus had to be injected into the case -- if at all -- as part of the intervenors' contentions.
10 intervenors tendered a 177-page document setting forth almost 100 separate offsite emergency planning contentions.
Many.of the contentions contained numerous subparts and all of them targeted alleged deficiencies in detail. In.
response to objections that the list of contentions was too long, the intervenors argued:
The LILCO Plan is a lengthy, complex document which encompasses all aspects of offsite emergency planning. Intervenors have reviewed the Plan in i its entirety, and have identified a large number-of specific deficiencies . . . in detail so that the bases for the contentions (both legal and factual) forth as specifically as possible.99e set Five items -- Contentions 24.0, 24.P, 74, 75 and 77 -- dealt
, with alleged deficiencies in connection with the relocation ,
centers. Three items -- Contentions 16.I, 23.F and 76 --
dealt with additional aspects of monitoring and decontamination.18 The Licensing Board admitted the five contentions dealing with relocation centers, but did not 4
17 See Memorandum Regarding Revised Emergency Planning Contentions at 4, attached to Letter from Karla J. Letsche to Licensing Board (July 26, 1983).
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.See Revised Emergency Planning Contentions, at 27, 31 (Contention 16. I) ; 47, 51-52 (Contention 23.F) ; 55, 66-67 (Contentions 24.0 and P); 153-56 (Contentions 74, 75, 76, 77), attached to Letter from Karla J. Letsche to Licensing Board (July 26, 1983).
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l 11 adAit the three contentions dealing with monitoring and decontamination.19 In the usual case, we would simply examine the contentions as admitted to decide whether the Board's determination properly fell within the issues raised.20 In this case, however, LILCO's emergency plan changed significantly during the course of the litigation and the Licensing Board expressly reopened the proceedings for new 3 hearings to address some but not all of those changes.
Thus, the intervenors' original submission cannot serve as the exclusive focus of examination. And the Licensing Board is best situated to decide one question hotly contested on appeal -- i.e., whether the Board ~ intended as part of its t reopening to revisit the issue of LILCO's plan for evacuees who did not seek sheltering. The Licensing Board must now decide whether, in view of the evolution of the LILCO plan, the issue was_ reasonably embraced within the concerns presented for litigation.
19 Special Prehearing Conference Order of August 19, 1983 (unpublished) at 7, 13, 23.
20 See, e.g., Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC ,
(August 28, 1986) (slip opinion at 29-32).
12 The text of the proffered contentions will provide a 1
necessary starting point. As noted earlier, the intervenors submitted a comprehensive array of contentions touching in detail upon every aspect of-LILCO's offsite emergency plan. As to alleged deficiencies in connection with relocation centers, Contention 24.0 argued essentially that a portion of the population would have no place to go because one of the primary designated centers -- Suffolk Community College -- was unavailable.22 Contention 74 alleged that two of the primary centers were impermissibly close to the boundary of the plume EPZ, while Contention 75 addressed the adequacy of the shelters.23 Contention 24.P claimed that LILCO had no agreements with the American Red Cross (ARC) although it relied on the ARC to provide services at the relocation centers. And Contention 77 challenged the sufficiency of certain equipment used to measure thyroid contamination. The intervenors argue that there is general language in the contentions that was intended to permit inclusion of the issue. Contention 24.0, for example, alleges a failure by LILCO to arrange 9
~1 The contentions are set out in an appendix to LBP-85-12, 21 NRC at 975, 979, 1020-21.
22 See ALAB-832, 23 NRC at 157.
Id. at 157-58.
1 13 relocation centers for " anticipated evacuees. " But, given both the breadth of, and level of detail in, the contentions, it may also be significant that the intervenors did not expressly challenge LILCO's alleged failure to estimate and plan for the number of evacuees who might need radiation monitoring and possible decontamination, even though they do not seek to be sheltered.
The Board should also canvass the direct testimony submitted in support of the contentions to help determine whether the matter was within the scope of the intervenors' 24 concerns. The intervenors seem to focus on the adequacy of arrangements for those evacuees who needed shelter. We find no discussion of a deficiency in LILCO's ability to accommodate evacuees who will need monitoring or decontamination but not sheltering. In fact, the only distinction among categories of evacuees set forth in the 24 See Direct Testimony of David Harris and Martin Mayer on Behalf of Suffolk County Regarding Contentions 24.G, 24.K, 24.P, 73 and 75, fol. Tr. 9574, at 10-12, 24-30
[hereafter, " Harris /Mayer Testimony"]; Direct Testimony of Robert T. Kreiling on Behalf of Suffolk County Regarding Contention 24.0 (March 2, 1984); Direct Testimony of Deputy Chief Inspector Richard C. Roberts on Behalf of Suffolk County Regarding Emergency Planning Contention 74 --
Inappropriate Proximity of Proposed Relocation Centers to the Shoreham Plant (March 2, 1984); and Revisions to the Direct Testimony of David Harris and Martin Mayer on Behalf of Suf folk County Regarding Contention 75, fol. Tr. 14,870.
The Kreiling and Roberts testimony was prefiled but appears not to have been introduced into evidence.
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.o 14 testimony was between "the potentially or actually contaminated evacuees, and those who are not contaminated."25 The intervenors' proposed findings of fact and conclusions of law broadly challenge the adequacy of the relocation centers but specifically argue only that LILCO must make arrangements for the entire population of the EPZ, i.e., 160,000 people.26 The Board must, of course, consider whether LILCO's change in plans affected the intervenors' ability to formulate their issues for litigation. In this connection, we note that two principal functions are performed by relocation centers. First, reception center functions include the registration, monitoring and decontamination of evacuees. Second, congregate care functions include the temporary housing, feeding and providing of first aid for uncontaminated evacuees. These functions may be conducted at the same or separate facilities.27 As we explained in ALAB-832, LILCO's original emergency plan designated five facilities located in Suffolk County to serve as relocation 25 Harris /Mayer Testimony at 29-30.
26 Suffolk County and State of New York Proposed Findings of Fact and Conclusions of Law on Offsite Emergency Planning, Volume I (October 26, 1984) at 430-431.
27 See Affidavit of Baldwin, et al., fol. Tr. 15,991, at 1.
P 15 centers.28 Each facility was to provide both reception center and congregate care functions. From the outset'it was clear that there could be individuals who-would need monitoring and decontamination services, even if they did not also require sheltering. As the plan evolved, LILCO proposed to rely on separate relocation facilities -- one or more large reception centers, where all radiation monitoring and decontamination activities would take place, and 50 smaller shelters or congregate care centers.29 The Board should determine whether these subsequent revisions in the number, locale and function of the individual reception center and the congregate care centers raised new or unique concerns regarding the number of evacuees who would seek monitoring but not sheltering.
Under its revised approach, LILCO designated the Nassau Veteranc Memorial Coliseum as its relocation or reception center, and the Board reopened the record "for the limited purpose of assessing the adequacy of LILCO's proffered evidence concerning the Nassau . . . Coliseum as a relocation center to be used in the event of an emergency at 20 23 NRC at 157-62.
29 See Cordaro, et al, fol. Tr. 14,707, at 15-16, 24-25; Tr. 14,792-14,807.
16 Shoreham."30 As the Board explained in a supplemental-order:
The reopening is limited in scope to [ Contention.
24.O]. It does not extend to the other contentions in the proceeding which bear on~the topic of relocation.
. . . [A]n oral hearing is-needed to resolve the contested issue in Contention 24.0 as to whether the designated relocation center, the Coliseum, is itself functionally adequate to serve as a relocation center for the anticipated general evacuees. The number of general evacuees that can-be expected to use a relocation center has already been litigated and that subject will not be reheard. The Board will only consider evidence that goes primarily and directly to the. question of whether the Coljgeum is adequate for use as a relocation center. (emphasis added)
The Board's subsequent finding that LILCO had failed to demonstrate how many evacuees will seek monitoring but not sheltering, and how LILCO would provide for them, appears inconsistent with its exclusion of questions related to the number of " general evacuees" that can be expected-to use the relocation cent.er. It is possible, of course, that the Board declined to relitigate LILCO's planning basis because it had already adopted the intervenors' assertion that any monitoring and decontamination facility must have the 30 Memorandum and Order Granting LILCO's Motion to Reopen Record (January 28, 1985) at 9 (unpublished).
31 Memorandum and Order (Reopening of the Record) (May 6, 1985) at 3-4 (unpublished).
O 17 capability of processing all 160,000 people living in the EPZ. If that constitutes the basis for its finding that LILCO's plan is deficient, it should state so explicitly.32 Finally, the Board must reexamine its conclusion in light of our determination, in ALAB-832, that the reopened proceedings should have been expanded to permit exploration of additional matters associated with the suitability of the Coliseum itself. In remanding the proceedings to the Licensing Board for additional evidentiary exploration, we observed that, although the relocation center contentions were cast in terms of lack of agreement evidencing permission for use of designated facilities as relocation centers, the intervenors' essential concern was whether 32 During the course of the reopened hearing the intervenors argued that the only issue previously litigated was the number of evacuees that would seek shelter. Tr.
15,973. It appears that the number of evacuees likely to need monitoring but not sheltering was not actually litigated in the earlier stage. That would be immaterial if the issue should properly have been raised during the earlier phase of the case when LILCO's planning basis was under review. The staff claims that the intervenors have failed to question LILCO's planning basis for any relocation center and have failed as well to litigate LILCO's general planning basis irrespective of the specific relocation center selected. See Staff Brief (November 21, 1985) at 6 n.8. The staff concludes that "the reason for this failure is simply that the Intervenors had never previously perceived this issue to be within the scope of the admitted contentions." Id. The Licensing Board appears to disagree but had no opportunity to address this argument directly.
18 those facilities were adequate to fulfill their purpose.33 Because the'intervenors' intent was to challenge the overall adequacy of the Coliseum, the reopening should have addressed all matters pertinent to use of the Coliseum in lieu of other relocation sites.34 We realize, of course, that LILCO must now modify its plans because the Coliseum will be unavailable as a reception center. Presumably the Board will need to reexamine the adequacy of any new facility selected by LILCO. In this connection, the Board should consider whether the change in facility itself bears on the question of the need to plan for evacuees who seek monitoring but not sheltering.
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Conflict of Interest Under LILCO's emergency plan, offsite emergency response procedures would be implemented by the Local Emergency Response Organization (LERO) , a group that, as noted above, includes LILCO employees but does not include county or state personnel. Contention 11 asserted that 33 23 NRC at 162 n.104.
34 We decided, for example, that problems arising from the geographic location of the Coliseum vis-a-vis various portions of the EPZ should have been included in the reopened proceedings. Id. at 161-62.
19 LILCO employees who would occupy command and control positions in the event of an emergency are not sufficiently independent of LILCO and may. experience a conflict between their obligation to the public and their loyalty to LILCO's financial and institutional interests. Such conflict arguably might affect the manner in which they perform their emergency responsibilities.35 The crux of the intervenors' testimony was:
Individuals employed by a utility are simply too close to the source of the problem to maintain the objectivity and open-mindedness necessary to manage and control the response to an emergency 35 The full text of Contention 11 was:
The LILCO employees in command and control positions under the LILCO Plan may experience a conflict between LILCO's financial and institutional interest and the public's interest, which may substantially hamper their ability to perform the functions assigned to them in a manner that will result in adequate protection of the public. The Intervenors contend that LILCO employees will have a strong incentive to minimize the public's perception of the potential or actual danger involved in a radiological emergency in order to avoid engendering public or LILCO shareholder disapproval of LILCO, or anti-Shoreham sentiment. Thus, for example, they may not recommend an appropriate protective action in a prompt manner because to do so would be contrary to LILCO's financial interest in maintaining a public perception that Shoreham is not a source of danger. LILCO has failed to institute appropriate measures to ensure the independence of LERO personnel. Accordingly, there is no assurance that correct and appropriate command and control decisions will be made by LILCO employees.
See LBP-85-12, 21 NRC at 964, i
-O 20 involving a nuclear power plant. Utility employees could serve a valuable function as advisers in emergencies, since they are familiar with the commercial nuclear power systems. But this same familiarity leads to inevitable biases and mind sets that can lead to ineffective or unworkable emergency responses.
. . . LILCO employees in command and control positions also lack objectivity in the roles assigned to them as LERO officials. By definition, objectivity requires that facts and-conditions are received and dealt with without distortion by personal feelings, prejudices, or interpretations. Yet facts and conditions surrounding a radiological emergency at Shoreham necessarily impact the future existence, well being, profit and public perception of LILCO and LILCO's management. LILCO management level employees cannot help but interpret, judge and feel about those facts and conditions, at least in part, according to their positions in the company.
Their relationship with LILCO, their employer, fundamentally and unavoidably compromises their
) ability to act objectively in the command and contrgg functions assigned to them in the LILCO plan Apparently recognizing the potential-for some conflict of interest, LILCO's witnesses testified that the emergency plan was structured to minimize the effect of individual biases or beliefs on the decisional process.37 Among other things, no personnel holding command and control positions will have operational responsibilities with respect to Shoreham; U.S. Department of Energy personnel will be an 36 Purcell, et al., fol. Tr. 10,727, at 12-13.
37 Cordaro, et al., fol. Tr. 10,196, at 11-20.
e 21 integral part of the emergency response organization; and procedures and protective actions will be established in advance.38 The principal advisor on protective actions, i.e., the Radiation Health Coordinator, is a consultant and not a LILCO employee.39 A training program is used to reinforce the primacy of public protection.40 An NRC staff witness testified that the Shoreham emergency response organization will function adequately.41 The Licensing Board essentially adopted the intervenors' position. The Board indicated that the regulations and Commission guidance " contemplate that command and control decisions will be made by officials of State and local. governments during radiological emergencies."42 It found that LILCO had failed to demonstrate that its plan "gives a result comparable to that contemplated by the regulations."43 We conclude that the Board erred in holding that the LILCO plan runs afoul of the Commission's regulatory Id. at 28-33.
39 Id. at 14.
40 Id. at 29.
I Schwartz, fol. Tr. 15,143, at 2-4.
42 LBP-85-12, 21 NRC at 686.
43 Ibid.
s-22 requirements. Because we believe that the Board has misread the Commission's regulations and regulatory guidance, we find it unnecessary in reaching our decision to delve into
.the psychology of human response, which undergirded much of the evidence of record. Moreover, developments since the issuance of the Licensing Board's decision make it clear that the key aspect of the LILCO plan found objectionable by the Board -- i.e., the exercise of decisional responsibility essentially by individuals with ties to the utility -- will not be a feature of any plan likely to be implemented.
A. Reduced to essentials, the Board determined that the Commission's regulations require.the type of independence that can result only when decisionmakers have
$ no association with a utility; hence, LILCO's plan is inherently incapable of providing public protection comparable to that which would be offered if governmental .
officials were to participate. The Licensing Board, however, has misconstrued the regulatory requirements imposed by the Commission.
The conclusion that LILCO's plan is inherently flawed because it places important responsibilities in the hands of the utility runs counter to the entire emergency planning framework. Both the regulations and pertinent planning guidance already assign command and control responsibilities
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to licensee personnel.44 Perhaps most important, the '
initial determination of whether and when to alert public officials to an emergency situation rests with the utility.45 Likewise, licensees have primary responsibility for accident assessment, including the evaluation of potential risk to the public health and safety and the preparation of recommendations concerning protective measures.46 The NRC Incident Response Plan, prepared by the Office of Inspection and Enforcement, similarly provides that a licensee "has the immediate and primary continuing responsibility for limiting the consequences of an incident at a nuclear power re' actor."
In fact, a licensee is empowered to take "whatever action is deemed necessary to limit the consequences to public health and cafety, even if that action violates the NRC license 44 The intervenor witnesses defined " command and control" as the " authoritative direction of activities designed to mitigate the emergency;" command and control embraces "all those individuals who are expected to play some part in implementing the emergency contingency plans . . . . Purcell, et al., fol. Tr. 10,727, at 6-7.
45 10 C.F.R. 50. 47 (b) (5) ; 10 C.F.R. Part 50, Appendix E, SS IV.D.1, IV.D.3.
46 See " Criteria For Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants," NUREG-0654/ FEMA-REP-1 (Rev. 1) (1980) at I . II . (hereafter, "NUREG-0654"].
24 technical specifications."47 And utility personnel are responsible for determining what information is given to government officials.48 The Board has not explained how these critical roles differ in any material respect from the I duties it believes can properly be assigned only to governmental officials.
At the hearing, the intervenors advanced the argument that telling the public that an accident occurred is not as significant as advising them that the accident resulted in radioactive releases that warrant protective action.49 But they did not explain the present significance of this distinction, and we perceive none. The regulations, after all, require that utilities establish a four-tier accident classification scheme. In the event of an emergency, licensees must advise government officials of the magnitude of the accident and of fer recommendations on what protective l
47 "NRC Incident Response Plan," NUREG-0728, Rev. 1 (1983) at 4 [hereafter, "NUREG-0728"). The Incident Response Plan expressly takes into account the potential for conflict of interest by instructing licensees that
"(1]imiting the consequences to public health and safety should take clear precedence over limiting financial loss or adverse publicity." Ibid.
48 Cf. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-697, 16 NRC 1265, 1269-70 (1982); id., ALAB-698, 16 NRC 1290, 1312-13 (1982), aff'd in pertinent part, CLI-83-23, 18 NRC 299, 310 (1983).
49 Purcell, et al., fol. Tr. 10,727, at 25-27.
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25 measures should be taken.50 In our view, these obligations are tantamount to requiring a licensee to inform the public that certain protective action is required. The intervenor witnesses conceded as much, noting that any conflict of interest could equally affect such. utility I
recommendations.
The intervenors also contended that the Commission allows licensees to exercise certain emergency response functions only because ultimate decisional responsibility will be in the hands of government officials; the e
intervenors claimed, in effect, that the Commission deliberately established a system of " checks and balances."52 They offered no evidence to support their theory, however, and we find none. To the contrary, the historical evidence reveals that emergency planning roles have always been assigned to reflect the duties and capabilities of the individual participants. Governmental entities were given emergency response roles because they had the legal authority and responsibility for such 53 response, not because the Commission distrusted the 50 See Three Mile Island, ALAB-697, 16 NRC at 1269-70.
51 Purcell, et al., fol. Tr. 10,727, at 26.
Tr. 10,755.
See 35 Fed. Reg. 19,567-68 (1970).
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objectivity of licensees.54 In our view, the regulations-a .
.and applicable regulatory guidance effectively rebut the notion that utility officials must be categorically' excluded
.from exercising any command and control responsibilities.55 B.
-s We also find that command and control authority of
-the type found objectionable by the Board is not likely.to rest' exclusively in the hands of.the utility. Under the LILCO plan as proposed, the company is to undertake both those responsibilities ordinarily assigned to a licentee in case of an emergency and (in cooperation with DOE and
. private' contractors) those that would normally fall to state or local government officials. Although the Board's decision is not entirely free of ambiguity, we interpret it to' require decisional independence only as to those 54 The Commission could have assigned such responsibilities to the NRC staff. Instead, the staff has largely an advisory and monitoring. role, although it may, in some circumstances, also take direct action, such as making
-its own protective action recorn-ndations. See " Agency Procedures for the NRC IncidcGt 1esponse Plan," NUREG-0845 (1983) at II II-13; Fa9?C-P'!8 at 4-6. Cf. Three Mile Island, ALAB-698, 16 NRC it 1]? L3.
55 Except in one respect, the Licensing Board did not find that the particular individuals actually assigned to LERO would be unable to perform their jobs properly. (With regard to that exception, the staff's witness admitted that one LERO official' expected to check with LILCO management before making a key decision; that individual, however, is no longer with the company.) LBP-85-12, 21 NRC at 682.
Rather, its determination hinged on its belief that any individual affiliated with_LILCO would be inherently subject to an unacceptable conflict of interest.
s
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27 functions typically performed by governmental units.56 As we noted in ALAB-818, .however, New York State law prohibits private companies such as LILCO from performing certain functions in that latter category.57 Thus, any plan that might eventually receive Commission approval must necessarily include individuals not operating under LILCO's.
aegis.
LILCO argued during an earlier phase of this litigation that state or local officials would respond in case of a genuine emergency. We were unprepared to accept that argument because no response plan involving state or county officials had been submitted for review on the record and the LILCO plan was too complicated for ad hoc adoption by government officials in the event of an emergency.58 However, in reversing that portion of ALAB-818 dealing with the so-called " realism" and " immateriality" issues, the Commission was prepared to assume that state and county officials would participate in emergency response on a "best efforts" basis by relying on the LILCO plan as a source of 56 The lack of independence challenged in Contention 11 is limited to LERO personnel.
57 22 NRC at 660.
Id. at 674-76.
w 28 emergency planning'information and options.59 In such circumstances, individuals not affiliated with LILCO, such as state and local officials, will presumably be involved in those discretionary command and control determinations normally the province of government and which the Licensing Board found to be subject to potential conflict of interest.
The Commission has remanded the proceeding to the Licensing Board so it can determine whether the "best efforts" government response will be. adequate to protect the public. This matter will be subject to further exploration.
What seems clear from the Commission's remand, however, is that any plan ultimately approved must involve some form of governmental participation. In the circumstances, the intervenors' concerns over a possible conflict of interest, and the Board's determination in that regard, become largely academic.
III.
Lack of a State Emergency Plan The procedure and criteria for evaluating the acceptability of a facility's emergency response planning and the minimum content of such planning are set out in 59 CLI-86-13, 24 NRC at (slip opinion at 13-14).
The Commission also assumed (as we had earlier found) that LILCO is prohibited from performing certain governmental functions. Id. at (slip opinion at 12-13).
> s 29 10 C.F.R. 50.47 and Appendix E to 10 C.F.R. Part 50. Where compliance with each of the 16 express criteria of 10 C.F.R.
- 50. 47 (b) is absent, the Commission may nevertheless issue an operating license if the applicant can demonstrate "that deficiencies in the plans are not significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operations."60 Section 50.47 (b) (1) requires that offsite emergency response plans include an appropriate assignment of responsibilities to the licensee and state and local emergency response organizations. Similarly, NUREG-0654, which is the principal emergency planning guidance document prepared jointly by the NRC and the Federal Emergency Management Agency (FEMA) ,61 provides for the assignment of emergency response duties to the licensee and state and local organizations. Ordinarily, the State of New York itself would perform four functions: (1) dose projection based on release data communicated to State officials; (2) sampling in the 50-mile ingestion pathway emergency planning zone; (3) interdiction of contaminated foods; and (4) issuance of protective action recommendations via the radio 60 10 C.F.R. 50. 47 (c) (1) .
61 See supra note 46.
l i
l
.s-30 and local emergency broadcast network.62 The State does not propose.to perform these functions for the Shoreham reactor, however, because it opposes issuance of an operating license. The intervenors assert that there can thus be no compliance with the requirements of 10 C.F.R. 50. 47 (a) (2) or (b), or NUREG-0654, insofar as Shoreham is concerned.63 The NRC staff agrees.
In approaching the matter, the Board explicitly distinguished between LILCO's authority under state or local law to take certain actions and its capability for implementing its plan. The Board separately determined that LILCO lacked the legal authority to undertake certain of its proposed actions but wished to examine "whether the Plan was adequate, within the regulatory requirements, aside from 62 Cordaro and Weismantle, fol. Tr. 13,899, at 6-7.
63 The full text of the intervenors' contention 92 is:
There is no New York State emergency plan to deal with an emergency at the Shoreham plant before this Board. (See Plan, Attach. 1.4.2) In addition, the LILCO Plan fails to provide for coordination of LILCO's emergency response with that of the State of New York (assuming, arguendo, such a response would be forthcoming). (See FEMA Report at 1.) In the absence of a State emergency plan for Shoreham, there can be no finding of compliance with 10 C.F.R. SS 50.47 (a) (2) ,
- 50. 47 (b) , or NUREG-0654 SS I.E, I.F, I.H or II.
See LBP-85-12, 21 NRC at 1024 (footnote omitted).
~
s O-31 Applicant's authority to perform the operation."64 From this perspective, it decided that LILCO could not comply with NRC regulations.
Its decision rested on two grounds. First, it construed the Commission's regulations and NUREG-0654 as foreclosing a finding that an adequate emergency response can be assured where governmental authorities fail to participate in planning or to commit themselves to respond in the event of an emergency. Specifically, the Board observed that "NRC's regulations and guidance are founded on a fundamental assumption that there will be an integrated approach to emergency planning among State and local governments and utilities."65 It determined, in this
? connection, that the dispensation contained in section 50.47 (c) (1) -- allowing plant operation in the absence of strict adherence to all the requirements of 10 1
C.F.R. 50. 47 (b) where an applicant can demonstrate that compensating actions can be taken -- was not intended to cover a situation where governmental authorities refused to participate at all in emergency planning. The Board recognized that NUREG-0654 permits a finding that an adequate state of emergency preparedness exists if 64 LBP-85-12, 21 NRC at 649.
Id. at 885.
- ; +,
w 32 weaknesses in one organization are identified and
. compensated for by another organization. But it concluded-that such weaknesses had to exist only in discrete elements of the implementing guidance and not result from an absence of governmental support.66 Second, the Board found that the public health and safety could not in any event be as well protected by LILCO acting alone as~it could if LILCO acted in concert'with governmental authorities. It-nonetheless acknowledged that LILCO has the capability to perform the four, specific' tasks that have been identified as state ' functions.67 We agree with the Licensing Board that, in terms, LILCO cannot satisfy section 50.47 (b) or conform to the guidance in NUREG-0654. But in CLI-86-13, issued after the Board reached its decision under review here, the Commission expressly determined, in the context of reviewing LILCO's overall proposal, that a utility plan prepared without any governmental cooperation might pass muster under 10 C.F.R.
- 50. 47 (c) . 68 In other words, contrary to the Board's 66 Id. at 884.
67 Id. at 882-84.
68 24 NRC at (slip opinion at 10). The Commission's pronouncement in this regard is consistent with its earlier observations. See, e.g., Union of Concerned Scientists, DPRM-83-1, 17 NRC 719, 726 (1983) (where, "for (Footnote Continued)
A i d.
33 determination, the lack of any coordination with the state does not preclude LILCO from attempting to demonstrate that it can. meet the requirements of 10 C.F.R. 50.47 (c) (1) . Nor does it prevent the Commission from making the requisite finding pursuant to 10 C.F.R. 50. 47 (a) that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency..
As.a consequence, the Licensing Board's determination cannot stand.
We believe that a remand is called for here so that the Licensing Board may determine anew whether LILCO's plan is satisfactory insofar as it relates to the fulfillment of the i four state functions. On this score, we note that the Board did not identify any specific defect in LILCO's plan to substitute for state participation. Indeed, it indicated that LILCO has the capability to perform adequately each of the four functions that would be performed by the state if it were to participate. The Board rejected the LILCO t.
f (Footnote Continued) whatever reason," a particular jurisdiction has not completed a plan or some portion of it, an " applicant [may) show that, because of other compensating factors, public health and safety will be adequately protected because of other plans or evidence of preparedness"). Cf. Consolidated E
Edison Co. of New York (Indian Point, Unit No. 2),
CLI-83-16, 17 NRC 1006, 1013 (1983) (Commission endorses a
^
plan under which the State of New York and a utility took over and performed the functions that would normally be performed by the local emergency response organization).
,C e
34 alternative because it believed both that the State might do things above and beyond the four functions addressed in the LILCO plan and that the government entities acting together with LILCO could somehow do the job better than LILCO acting alone. But it did not find it necessary to specify precisely how LILCO's plan was deficient, or how the state's participation would make it better, in view of its primary conclusion that LILCO could not comply with 10 C.F.R.
- 50. 47 (c) and NUREG-0654 -- the conclusion later specifically rejected by the Commission.
The Board should now revisit its earlier decision in light of the Commission's determination that the lack of state cooperation does not per se render LILCO's plan inadequate. In this regard, the Board must take into account that the Commission's regulations establish the regulatory requirements. Contrary to the Board's apparent earlier belief, a utility plan cannot be deemed to have shortcomings simply because a governmental body may perform various undescribed functions not required by the regulations. Moreover, the sufficiency of " interim compensatory actions" designed to accommodate for deficiencies such as the lack of a state plan need not necessarily provide precisely the same level of protection
-O 35 that total correction of the deficiencies would offer.69 On remand, the Licensing Board shall reexamine whether there are identifiable deficiencies in LILCO's ability to fulfill the four state functions so as to render the-LILCO plan inadequate. If, however, the Board continues to believe that the insufficiencies in LILCO's plan result solely from either (i) LILCO's inability to do things not required by the regulations, or (ii) the State's capacity to provide a level of safety beyond that considered adequate, it must find that LILCO has prevailed on Contention 92.
The Licensing Board's disposition of the three issues raised by LILCO on appeal in this phase of the proceeding is reversed. The proceeding is remanded so that the Licensing Board may reconsider its decision regarding the monitoring of evacuees and the lack of a New York State plan, in accordance with this opinion.
Indian Point, CLI-83-16, 17 NRC at 1010. See also CLI-86-13, 24 NRC at (slip opinion at 12) (" (W]e might look favorably on the LILCO plan if there was reasonable assurance that it was capable of achieving dose reductions in the event of an accident that are generally comparable to what might be accomplished with government cooperation").
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99
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36 It is so ORDERED.
FOR THE APPEAL' BOARD' O. b - - hY- _
&_s l~
C. JeRn Shdemaker Secrehry-to the Appeal. Board
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