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Lilco Reply to Intervenor Proposed Findings on Reception Ctrs.* Rejection of Intervenor Proposed Findings Recommended in Favor of Util Findings.Attachments to Util Reply & Certificate of Svc Encl
	ML20235F335
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	09/21/1987
From:	Leugers M; HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	; Atomic Safety and Licensing Board Panel
References
	CON-#387-4484 OL-3, NUDOCS 8709290052
	Download: ML20235F335 (147)
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, '87 SEP 24 A7 :35 i .c l

UNITED STATES OF AMERICA J I NUCLEAR REGULATORY COMMISSION l

Before the Atomic Safety and Licenshw Board i In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3 i

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S REPLY TO INTERVENERS' PROPOSED FINDINGS ON RECEPTION CENTERS Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 September 21,1987 8709290052 DR 870921 ADOCK 05000322 PDR D'O

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMINON l

Before the Atomic Safety and Liwrw Board In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3 i

) (Emergency Planning) l (Shoreham Nuclear Power Station, )

Unit 1) ) !

LILCO'S REPLY TO INTERVENERS' PROPOSED FINDINGS ON RECEPTION CENTERS l Hunton & Williams:

707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 September 21,1987

I1LCO, Septrmber 21,1987 --

' UNITED STATES OF A'MERICA r NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Bpard In the Matter of . )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S REPLY TO INTERVENERS' PROPOSED FINDINGS ON RECEPTION CENTERS Here, as prescribed by 10 CFR S 2.754(a)(3) (1987) and the schedule adopted by the Board on July 30,1987 (Tr.19,237), is LILCO's reply to the Interveners' proposed findings of fact and conclusions of law on the suitability of reception centers. The In-tervenors' findings (hereinaf ter "I.F."), entitled "Suffolk County, State of New York, and Town of Southampton Proposed Findings of Fact and Conclusions of . Law on the i

Suitability of Reception Centers," are dated September 14, 1987. LILCO's proposed ,

findings of September 2,1987, are cited herein as "L.F."

The organization of this Reply (except for Section VI) matches the organization of the Interveners' findings; that is,Section I.D below (for example) responds to Section I.D (on pages 11-18) of the Interveners' findings.

Introduction The Interveners' proposed findings should be rejected in their entirety in f avo" of LILCO's, which are a more balanced and more accurate representation of the evidence in the record.

As a general matter, the shortcomings in the Interveners' findings are the same as the shortcomings in their findings in the past. See "LILCO Reply Findings on Offsite

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Emergency Planning," November 14,1984, at 1-8. In particular, the Interveners' find-ings can best be characterized as: one-sided. They chiefly cite their own witnesses and ignore, or discount unfairly, other evidence, including evidence from the expert egen-cies FEMA and the NRC Staff. Sometimes they cite a passage of the transcript and pointedly ignore a statement contrary to their position in the same passage. For exam-ple, in addressing Dr. Mileti's testimony that people did not flee from atomic bomb tests near Las Vegas, the Interveners say that there is no evidence that the tourists in Las Vegas knew about the bomb tests. I.F. at 68. But in the precise passage they cite, Dr. Mileti testifies that some of the bomb tests were "quite visible" from Las Vegas.

Tr.17,501 (Mileti).

The Interveners' findings might also be characterized as expedient (or, as they would put it, " result-orienteC') rather than consistent. Faced with an enormous amount of evidence against them, are forced to deal with each fact ad hoc, first distinguishing one piece of evidence on some manufactured ground and then finding a different dis-tinction for the next piece. Of ten their attack on the evidence amounts to nothing more than the claim that it is not perfect; of tentimes they ignore the f act that the evi- ,

dence they criticize is the only empirical evidence there is. The Interveners' inconsis-tent approach to empirical data can best be seen in their treatment of experience with real-life emergencies. They first discount all natural disasters and, though less enthusi-astically, nonradiological technological disasters because they do not involve radiation.

They then dscount Three Mile Island because, they claim, the data ace insufficient and because no one was advised to go to reception centers to be monitored. They discount the monitoring-seeking behavior af ter TMI because no one knows exactly how many people knew that monitoring was available. They discount Chernobyl because informa-tion about it is sketchy and unreliable. They ignore Ginna altogether. The result is that the Interveners' findings are a hodge podge of rationalization.

Also, the Interveners frequently mischaracterize the record. Section Ill below on monitoring procedures provides many examples of Intervenor mischaracterizations.

Moreover, the Interveners are undiscriminating in their chol'ce of issues to raise.

They recite scores of hypothetical, relatively minor problems with the LILCO Plan, ap-parently hoping that an accumulation of trivial problems will convince the Board that ,

j the Plan will not work. For example, they complain about people asking questions (I.F. l at 103), people demanding to shampoo in the shower (I.F. at 110), insufficient toilets (I.F. at 117), and many others. This was also the approach they took in their earher findings, and they now expand this accumulation of trivia to 40 miles from the nuclear )

plant. All of the problems the Interveners postulate can be handled by an emergency plan; all of them are not going to happen on the same day. The Interveners' attempt to invoke them as flaws in the Emergency Plan is simply a smokescreen to the truth.

Finally, the Interveners' findings are unreliable because they rely overmuch on the less quallfled witnesses - their own. This is one aspect of the one-sidedness men-tioned above, but deserves singling out for attention. Several times the Interveners would have the Board find that "the witnesses for all parties were generally well quall-fled and familiar with the matters on which they testified." See I.F. at 26 n.17 (with respect to planning basis); I.F. at 81 n.61 (monitoring procedures); I.F. at 132-33 n.98 (traffic). It is fine to say that all the witnesses are " qualified" in some sense, but that finding, without more, would be an inaccurate reflection of the witnesses' relative mer-its. If the decision in this case were made purely on an ad hominem basis, by comparing the expertise of the witnesses, LILCO's position would have to prevail. Of the true emergency planning experts (la, those who do emergency planning or review emergen-cy plans for a living), the opinions of LILCO planners, FEMA, and the NRC Staff 1/ "As a matter of practice, the Commission gives great weight to FEMA's views on the need for and adequacy of specific offsite protective planning measures." Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CL1 10,17 NRC 528. 533 (1983).

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outweigh the opinions of the three REPG witnesses, particularly as to the meaning of i -

j federal standards. On questions of human behavior in emergencies, a comparison of the statements of professional qualifications shows that Doctors Mileti and Lindell out- :

weigh Professors Johnson, Saegert, and Cole, two of whom have never even studied real emergencies. On traffic issues the opinions of Mr. Lieberman and Dr. Urbanik outweigh the opinions of the two DOT witnesses. (It does appear that Dr. Mayer probably knows more about Acquired Immune Deficiency Syndrome (though not, of course, about radia-tion) than LILCO's medical witness Dr. Linnemann; but in no other respect did the In-tervenors present superior witnesses.h/

The weakness of the Interveners' case is revealed by the f act that, af ter a sub-stantial hearing, they are lef t less and less relying on factual arguments and more and more on legal ones. As in the other phases of this proceeding, as the f actual basis of their case erodes, they resort ever more to the argumentum baculinum -- a naked ap-peal to governmental flat. They argue that, although the nuclear plant is safe and the emergency plan adequate, state or local law will not permit LILCO to implement a good plan; that is the nature of the Interveners' argument that zoning laws prohibit recep- ,

tion centers and that Nassau County has prohibited its police from directing traffic in an emergency. Other legal arguments that the Interveners use to avoid having to rely on facts are the argument that FEMA findings are essential to a Board decision, the ar-gument that San Onofre and ALAB-855 have already set a 100 percent standard for monitoring, and the argument that the Appeal Board has endorsed the use of opinion polls.

2/ Dr. Radford does have considerable expertise in epidemiology, though he has long represented a minority opinion. But his expertise on the BEIR controversy c"a" how many cancers may be caused by a given dose of radiation is, in LILCO's view,irreiecr.-

to the issues in this proceeding.

I I.D. Standard of Review / FEMA Findinsts (I.F. at 11-18)

The Interveners' first legal argument (at pages 11-18 of their findings)is that be-cause FEMA has not made findings on LILCO's current reception centers, the Board cannot make findings either. This argument is wrong, as a matter of law, Ior at least three reasons.

First, it is the NRC, not FEMA, that has the responsibility for making the ulti-mate decision on the adequacy W an emergency plan. See 10 CFR S 50.47(a)(2)(1987).

Moreover, the NRC has a duty to decide the adequacy of a " utility plan." CLI-86-13,24 NRC 22 (1986). It is true that a Board cannot ordinarily make findings without evidence; it is not true that a Board cannot make findings without formal FEMA re-view. Section 50.47(a)(2) says that "[a]ny other information already available to FEM A may be considered in assessing whether there is reasonable assurance that the plans can be implemented." The Interveners' explanation of this passage is as follows:

i While it is plain from other portions of Section 50.47(a)(2)

I that evidence in addition to FEMA's findings may be consid-ered, it is clear that FEMA findings and determinations -

whether preliminary, interim, or final -- are required by the NRC's rules before the NRC can make a favorablo reasonable assurance finding.

I.F. at 16126 (footnote omitted). The Interveners cite no text in 5 50,47(a)(2) and no other reason to believe that "other information" can be relied on only if FEMA has first made " findings." To the contrary, even in the absence of a FEM A finding the Board can rely on the evidence from a public hearing, and in this case there is ample evidence in the record. Here FEMA presented testimony, offering " FEMA's position" on several of the admitted issues, see FEM A Ex. 2 (Baldwin e_t al. direct testimony), at 6, 7, 12, 18, see also Ld. at 13-14, and useful information on others, id. at 10,17,19.

It would be particularly inappropriate to make FEMA RAC review a prerequisite for Board decisionmaking in a case, like this one, of a narrow remand issue, where events outside the applicant's control required a late change in the plan and where the l

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hearing schedule simply outstripped FEMA's review. Indeed, in this case the recent changes in LILCO's procedures were made precisely because of FEMA's earlier review, a

LILCO Ex.1 (Crocker et a_1. direct testimony), at 41t that FEMA has not yet reviewed the changes should not be used to prevent a decision. )

Second, the Interveners' argument about the necessity of FEMA review is an at-tempt to reargue an issue raised in the -05 (exercise) proceeding, in the form of Con-tention EP 39, where it has been fully briefed. The -05 briefs are attached (see Attach- l ments 1-3 to this Reply). As shown by those briefs, the Interveners' position is unfounded. ]

Third, the Interveners' argument that FEMA review is a prerequisite to a Board finding would seem to be disproved conclusively by the precedent in this case. FEMA did not make findings on several of the issues that this Board decided earlier.W For 3/ The argument that the Board cannot make a decision because FEMA has not made a finding on an issue is a more extreme version of an argument that the Interve-nors made many times, and had rejected, earlier in this proceeding. In their Proposed Findings of October 26, 1984, the Interveners argued many times that FEMA's testimo-ny should be entitled to "no weight" or "little weight" because FEMA had not reviewed '

some evidence or other. Yet the Board went ahead and made a decision on these issues.

See, for example,"Suffolk County and State of New York Proposed Findings of Fact and Conclusions of Law on Offsite Emergency Planning," October 26,1984, at 50 n.37 (FEMA's witness is entitled to "no weight" because he had not reviewed or analyzed LILCO's emergency messages),149 n.133 (FEMA witnesses had "never evaluated, or at-tempted to verify, performance standards or other technical aspects of LILCO's com-mun! cations system"), 168 n.151 (FEMA had no reason to agree or disagree with Contention 26.E), 194 n.177 (FEMA's testimony was "of little assistance" because FEMA's witnesses were unaware that LILCO modified its system to add a new frequen-cy), 207 n.189 (FEM A's testimony was "of limited utility" because FEM A's witnesses did not know that LILCO's radios are single-channel radios),209 n.192 (FEMA would evalu-ate radio equipment used by LILCO during an exercise),214-15 n.198 (FEM A committed to evaluate certain matters involving communications during an exercise),215-16 n.199 (LILCO/ DOE proposal to have RAP personnel perform dose assessment fur.etions at BHO, rather than the EOC, would have to be reviewed by the full RAC to determine its adequacy, and the communication / radio equipment used by the field teams, BHO's pro-cedures for performing field monitoring functions, and the range of DOE's radios and the frequencies utilized by the field teams had not been reviewed or evaluated by FEMA), 217 n.200 (FEMA was not aware of LILCO's letters of agreement with ambu-lance companies),219 and 219 n.202 (FEMA did not testify that existing radio links be-(footnote continued)

example, FEMA did not render an opinion on evacuation time estimates, yet the Board wrote a lengthy opinion on them. Indeed, if the Bcard has the authority to decide an issue in LILCO's favor contrary to a FEMA finding, as it did on the snow removal issue earlier, Partial Initial Decision (hereinaf ter "PID"), 21 NRC 644, 814-15, it is impossible to justify an argument that it cannot decide in LILCO's favor absent a favorable FEMA finding.

As part of their argument that FEMA review is essential, the Interveners appear to argue (I.F. at 14-15) that the Board cannot make a decision without an exercise first having been held. This is incorrect for two reasons. First, this proceeding is analogous to the hearings of 1983-84 in which the Plan was litigated, not an exercise. Obviously no exercise is necessary before the Board can approve an emergency plan or some fea-ture of it.

(footnote continued) tween hospitals, ambulance dispatchers, and ambulance vehicles had been found to be '

adequate, and FEMA did not know which ambulance companies could communicate with hospitals by radio, nor had FEMA visited the ambulance companies or hospitals), 286 !

n.282 (FEMA's witnesses had no knowledge or information regarding the Coast Guard's resources for providing notification), 297 (FEMA has been provided no information about the locations of trailblazer signs),300 n.303 (FEMA has not attempted to evaluate the' effectiveness of LILCO's public information program for single-language mi-norities),306 n.310 (FEMA review does not necessarily mean that the emergency plan- .j ning brochure has been reviewed for substance), 336 n.331 (Mr. McIntire's testimony !

was entitled to "little weight" because it was generic and not based on any Shoreham-specific data or any meaningful review of the LILCO Plan), 405 n.411 (FEMA had not determined whether the locations for fuel distribution were appropriate or whether those locations could give rise to queues that could impede evacuations FEMA will not evaluate this aspect of the plan until an exercise is conducted; thus the FEMA testimo-ny has "no probative value" on the implementation issue presented in Contention 66.F),

420 n.430 (FEMA had not seen any letters of agreement with bus companies),454 n.451 (FEMA's witnesses did not study LILCO's postcard to determine its adequacy and were unaware of other information about the LILCO plan), 454 (we give "little weight" to FEMA's testimony because FEMA did not examine the issues raised by the contention),

463 n.461 (FEMA's witnesses were not able to state that the Plan's provisions would ad-equately protect the homebound handicapped), and 521 n.508 (FEMA witnesses had not reviewed the Connecticut plan).

Second, the record before this Board is sufficient to make a decision without an exercise. The Interveners say that "no party disputed that a future exercise was needed in order to judge the adequacy of the facilities themselves" (I.F. at 15). This is incor-rect: LILCO's proposed findings propose that the Board find the Plan adequate for issu-ance of a full power license (L.F. at 119); LILCO's view is that an exercise is not a pre-requisite to a favorable decision.M LILCO presented as evidence an extraordinary amount of detail about its plan to l set up and operate tne reception centers. It provided detailed site drawings of each center and a floor plan of a decontamination trailer. LILCO Ex.1 (Crocker et al. direct testimony), Att. J, O. One FEMA witness explained at the hearing how the flow pat-tern works at one of the centers. Tr. 18,430-31 (Keller). The Board had no questions about how the flow through the centers would work, and the County's witnesses were unable to specify any particular movements that evacuees would be unable to perform.

l L.F. at 541 100; Tr.18,025-26 (Saegert). LILCO even offered into evidence a video tape of one of the reception centers in simulated operation, though the Board refused to admit it. See Tr.18,754. LikWL,u L1LCO provided both a detailed written proce- -

l dure and testimony about how monitoring is done (which in any event is not complicat- !

ed or hard to understand). See LILCO Ex.1 (Crocker et al. direct testimony), at 40-51 f and Att. P, Q, R; see also L.F. at 38-71. j l

. Thus, the detail in the record about how these reception centers would work is )

greater than that called for by, for example, the Waterford Decision. Louisiana Power

& Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076,1107 (1983). While it is true that the FEMA witnesses will apparently not make their 4/ The argument that an exercise is a prerequisite to a Board decision was not made either in the Interveners' testimony or, so far as we can recall, in their pleadings.

Hence there was no reason to address it in LILCO's proposed findings.

decision until they see the reception centers set up, no one has specified any fact that this Board cannot find on the existing record.

NRC law simply does not require a new exercise every time some feature of an emergency plan is revised. LILCO has already exercised the monitoring and decontami-nation function at the Nassau Veterans Memorial Coliseum, before that facility was withdrawn from the Plan; thus LILCO has already demonstrated LERO's ability to do monitoring and decontamination. LILCO has now also presented detailed evidence about a new location and a new procedure to perform the monitoring function, but no one has convincingly explained why the actual demonstration that has already been made, coupled with the detailed information the Board has been given about the new lo-cation and procedure, is not adequate to support an operating license.

II. P_1_anning Basis (I.F. at 19-79)

In their " planning basis" findings the Interveners argue that LILCO should have instruments and personnel available to monitor 100 percent of the EPZ -- 160,000 people -- in 12 hours1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months .W See I.F. at 25,48,79. In making this argument they make sev-eral fundamental mistakes: (1) they miss the principal point of LILCO's, FEMA's, and the NRC Staff's evidence explaining the rationale for the 20 percent standard; (2) they misinterpret the Commission and Appeal Board rulings on this issue; and (3) they use a fundamentally irrational approach to conform the County's theory of " shadow phenome-non" to the State's advocacy of a 100 percent standard.

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5/ Several times in their proposed findings the Interveners state that LILCO has j adopted a 30 percent planning basis. I.F. at 23-24, 30, 33. This characterization of LILCO's planning basis is incorrect. Rather, LILCO has adopted a 20 percent planning ,

basis for monitoring evacuees at its reception centers, even though it is capable of l monitoring twice that number with its primary monitoring method, Tr. 17,481 (Crocker), L.F. at 40. The 30 percent figure is used by LILCO as a trigger point for calling in additional resources. L.F. at 60. LILCO witness Lieberman also used 30 per-cent for his analysis, in the interest of conservatism.

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The Interveners' first sericus error is that they miss the most important point made by the other parties: that the purpose of emergency planning for reception cen- l ters is to have a substantial planning basis that is capable of handling a spectrum of ac- l cidents and that forms a base for expansion ad hoc in an especially severe emergency.

See L.F. at 14-16; Tr.19,202-03,19,222 (Kantor). The Interveners treat the issue as how to predict the number of people who might show up in a particular accident on a particular day.

This is inconsistent with the notion of preparing for a " spectrum" of accidents.

A prediction of the number of people who might need or want to be monitored must

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necessarily assume a single accident. It follows that any prediction might be proved wrong if a different accident occurred. Accordingly, the emergency planning problem faced here is not predicting how many people might do what, but a problem of assessing whether there are sufficient resources to respond to a variety of accidents and suffi-cient organization to permit ad hoc supplementing of those resources. See Tr.18,357 (Husar). The NRC Staff and FEMA witnesses tried to point this out. Tr.18,357 (Husar),

18,369 (Keller), 19,202-03 (Kantor). It has never been a requirement of emergency planning that detailed planning be done for every possible emergency; to do so would be an irresponsible misuse of resources, particularly in light of the NUREG-0396 observa-tion that emergency planning for nuclear plants is a matter of " prudence rather than necessity." NUREG 0390 at 1-2. That the principle outlined above is r. part of NRC law cannot be denied; the quotation from San Onofre at L.F.14-15 establishes that. Given this principle, the testimony of LILCO, FEM A, and the NRC that a 20 percent planning basis is a reasonable one must be accepted over the contrary testimor.y of New Yorii State and Suffolk County, whose findings ignore this principle. See Tr.18,356-58 (Husar).

The second major error made by the Interveners' findings is their argument that the Commission and Appeal Board have already ruled that a 100 percent standard must be met. I.F. at 27-28, 30. They have essentially two bases for this argument. First, they cite a getum in Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10,17 NRC 528, 536 n.12 (1983), which says that NU REG-0654 requires relocation centers capable of registering and moni-toring all residents and transients in the plume exposure EPZ....

I.F. at 27. Second, the Interveners argue that the Appeal Board and Licensing Board have already ruled that more is required than LILCO has provided. See, e.g., I.F. at 30.

The Appeal Board addressed the Commission's dictum in ALAB-855:

There is no occasion to exploit here the bounds of our obligation to give effect to a Commission pronouncement that, albeit clear-cut, might not have been essential to the decision where it is found.

ALAB-855, 24 NRC 792, 799 (1986), review declined, letter from Samuel J. Chilk, See-retary of the Commission, to Board and Parties (June 23,1987). But AL AB-855 makes it clear that the Appeal Board did not view the Commission's pronouncement as imposing !

i a requirement of 100 percent:0 otherwise there would have been no point in remanding l the proceeding for further evidence on that score.E 9/ Moreover, even if the Board decides to take the San Onofre dictum as literal and l

binding, it will note that the Commission omitted both the words " arriving at relocation l centers" and also the words "within about a 12 hour1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months period." Thus LILCO's Plan I complies with the dictum. That is, LILCO's reception centers are capable of moni-toring the entire EPZ if there is no 12-hour deadline. ,

1 7/ Likewise, the Commission declined to review ALAB-855, which remanded this l

Very case for evidentiary hearings on the required planning basis for reception centers. l If the CommLssion believed that there is a 100-percent standard, surely it would not have allowed the Appeal Board to order useless evidentiary hearings. We do not believe that the Commission, any more than the Appeal Board, engages in the cruel sport of i making Boards and parties go through fruitless hearings, the outcome of which is a foregone conclusion.

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That additional evidence is now in the record. And it refutes the Interveners' 1

claim that there is no " independent analysis" to support the 20 percent figure. There are in fact several " independent analyses." There is the NRC Staff's " footprint analy- I sis." Staff Ex. 5 (Hulman direct testimony). There is' FEMA's review of past emergencies, including Three Mile Island, and the FEMA witness's opinion that Three Mlle Island supports the 20 percent standard. Tr.18,471 (Keller). There is testimony by i LILCO, FEMA, and the NRC Staff showing that protective action recommendations are expected to greatly limit the number of people needing monitoring and decontamina- '

tion. See L.F. at 16, 68-69; Tr.18,404-05 (Keller). There are empirical cata showing L

both that (1) people using public shelters at Three Mile Island and (2) p60ple seeking l monitoring af ter Three Mile Island were small in number. See LILCO Ex.1 (Crocker e_t

- a_1. direct testimony), at 15; Tr.17,884 (Johnson). There is the opinion of emergency planning experts from the NRC Staff, FEMA, and LILCO that 20 percent provides a sufficient planning basis. See L.F. at 11. There is evidence that LILCO has the ability to call on outside agencies for far more than the 46.6 percent capacity it can provide on its own.E LILCO Ex.1 (Crocker e_t a_1. direct testimony), at 52, 53, 54; Tr.17,666 (Linnemann), 17,725'26 (Crocker, Linnemann),18,424 (Baldwin). )

i It is, as LILCO argued many months ago, impossible to predict the precise num- l ber of people who might need to be monitored in a particular accident in the future, be-

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cause it is impossible to predict a particular accident. (The best prediction is that no I

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one will need to be monitored, because no serious accident is expected.) But it is possi-ble to provide evidence for a planning basis that is reasonable and prudent. That evi-dence is now in the record.E ]

3/ It might be added that LILCO has also qualified the Nassau Veterans Memorial Coliseum as a reception center, notwithstanding that LILCO no longer takes credit for it. Th; Coliseum would be available in a real emergency.

2/ The Interveners argue, quoting from San Onofre, that under the NRC's rules one l musi presume "that offsite individuals may become contaminated with radioactive ma-(footnote continued) l

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I A third major error made by the Interveners, here and in the -05 proceeding as )

well, is the argument that the Appeal Board has endorsed the use of surveys to predict l l

human behavior. The Interveners argue that 1

[T]he Appeal Board in this case and in others has held that survey data are valid, relevant, and persuasive evidenca con-cerning how people will behave in response to a radiological emergency. See, e.t., ALAB-832,23 NRC at 153; Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),

ALAB-836, 23 NRC 479, 517-20 (1986); Cincinnati Gas &

Electric Company (Wm. H. Zimmer Nr ' ear Power Station, Unit No.1), ALAB-727,17 NRC 760, 772 , "O.

1.F. at 61 1 98. This is an overstatement. In the first place, the Appeal Board has never ruled that survey data are " persuasive" pe_r s_e; what is " persuasive" always depends on the record hs a whole. It is true, as Interveners say, that with respect to surveys of emergency workers taken to determine the extent of role conflict, the Ap- I peal Board has ruled that such surveys are relevant and should be considered. But the standard for admitting evidence is quite different from the stanoard for relying on it as a basis for a decision. In particular, NRC Boards have alway been liberal in admitting evidence; that by no means implies that they must be " persuaded" by it. Second, and perhaps more important, the Appeal Board did not disturb any of this Board's findings on the reliability of opinion surveys of the public,N notwithstanding the fact that those findings were appealed and briefed by the Interveners. Nor did the Commission (footnote continued) terial gr may be exposed to dangercus levels of radiation or perhaps both," 17 NRC at 533 (emphasis in original). 1.F. at 50. But that is exactly what LILCO h_as presumed: it i has provided resources to monitor almost half of the entire EPZ within 12 hours1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months . Even though the expectation is that very few people will be contaminated, LILCO has pre-pared to monitor and decontaminate thousands of people, 1_0/ LILCO believes that no Licensing Board or Appeal Board has ever endorsed the use of polls of the general public as emergency planning tools. To the contrary, there is precedent that polls of the public are not useful. See Pacific Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-82-70,16 NRC 756, 780 (1982).

t disturb those findings.NI See ALAB-832,23 NRC 135 (198'6); PID,21 NRC at 667,676.

Accordingly, the Board's findings relied upon by LILCO, L.F. at 27, are final agency ac- l tion and the law of the case.

l Finally, Suffolk County's basis for urging a 100 percent standard is irrational. .

The County's survey shows, in the County's opinion, that approximately 1.3 million peo-ple would seek monitoring, no matter what the conditions of the accide'nt. SC Ex.'13 (Cole e_t aj. direct testimony), at 17, I.F. at 59. Yet the County urges that LILCO be re-I quired to prepare to monitor 100 percent of the EPZ - about 160,000 people. I.F. at 79.

Apparently this conclusion is the County's effort to close ranks with its co-intervenor the State or to temper an extremist position. But in making this shif t the County has f ailed to provide any rational basis for it. If approximately 1.3 million people will need monitoring, there is no rationale for providing monitoring for 160,000 - a 12 percent standard - unless it is the same rationale used by LILCO, the NRC, and FEMA that there should be a substantial planning basis capable of expansion. And if that is the ra-tionale, then the judgment of FEMA, the NRC Staff, and LILCO planners that 20 per- )

cent of the EPZ provides an adequate basis is entitled to more weight than Suffolk ,

County's witnesses, who are not emergency planners. ]

II.B.2. The Krimm Memorandum (LF. at 28-37) 1 At 1.F. 28-37 Interveners argue that the Board should reject FEMA's policy guld-anee on the meaning of J.12 as reflected in the Krimm Memorandum.O Their first M/ Upon review of ALAB-832 the Commission took up only three issues, none relat-ed to these Licensing Board findings. Order, Docket No. 50-322-OL-3 (September 19, 1986).

M/ The Interveners complain that the Krimm Memorandum " vaguely", explains the derivation of the 20 percent figure by referring to previous experiences in " unspecified natural and technological emergencies." !.F. at 28. However, the evidentiary record in l this proceeding provides considerable detail about the previous emergencies that FEM A l considered, See Tr.19,189-92 (Kantor), 18,319-22 (Keller), SC Ex. 33. They include both Three Mile Island and the well-known release of chlorine gas at Mississauga, Ontario. Tr.18,319 (KellerL l

1 criticism appears to be that the empirical data base is ! insufficient, I.F. at 30; this is, of course, the inevitable consequence of there having been few radiological accidents.

Where FEMA (and LILCO) have relied on the radiological accident at Three Mile Island, the Interveners distinguish away the evidence, I.F. at 30 n.19, on the ground that the reception centers at Three Mile Island offered shelter but not monitoring. The Interve-nors conclude that the Board should rely on their theories (and opinion polic) as opposed to the empirical experience that does exist on use of relocation centers and monitoring-seeking. The short answer is that actual experience in emergencies, even though they may be distinguishable by lawyers on one ground or another from postu-lated future emergencies at Shorehtm, is better evidence than opinion polls and theories.

In particular, LILCO showed that the number of people seeking radiological mon-itoring af ter Three M1;e Island was small. LILCO Ex.1 (Crocker gLt a_1. direct testimo-ny), at 15. Predictably, the Interveners have concocted a distinction with respect to TMI monitoring-seeking behavior as well. They argue that in a future radiological l emergency at Shoreham LILCO might advise people to seek monitoring, see, e&, I.F. at ,

31, whereas no one was advised to seek monitoring at TMI; thus the Interveners attempt to turn plans to advise the public into a liability for the planne"s.

But this contrived distinction contradicts the interveners' theories in other re-spects. That is, the Interveners argue that a LILCO advisory would be a very important factor in inducing people to seek monitoring. 1.F. at 70, 70-71 n.53. Yet they also argue that the precise terms of the advisory would be disregarded; that is,if LILCO told people in zones A, B, and C to be monitored, then the advisory would cause people f rom all other zones, and presumably f rom outside the EPZ as well, to report for monitoring.

I.d. Thus the effect of a LILCO advisory,in the Interveners' thecry, is that of triggering a knee-jerk reaction; people would hear and obey the words " report to such-and-such a l

1

r t

- loca'tlon for monitoring" but would ignore the information that only certain people need be monitored and all the other information in the EBS messages about the risk. This -

theory would even not sound plausible even to the uninformed, let alone to experts it) emergency behavior.

The Interveners also argue that the scenario of the February 13, 1986, exercise, which they say simulated LILCO's instructing over 95,000 people to report for ra-diological monitoring, somehow proves that greater than 20 percent of the EPZ might actually be advised to report fer monitoring in the future. I.F. at 32. But a postulated emergency shows nothing about what might happen in a particular future emergency, and it tells the Board nothing whatsoever about what an adequate plannine base for real emergencies might be. Presumably the Interveners would argue that the planners who developed the scenario would not have developed an impocsible scenario, and that may be true, but all it shows is that more than 20 percent of the EPZ might need monitoring in some postulated emergencies - which everyone concedes. All FEMA exercise sce-narios are of very severe accidents; otherwise they would not challenge the emergency organizations that are being tested. See Tr.17,734 (Crocker), 17,734-35 (Watts). The ,

LILCO exercise was no exception.N The Interveners also argue (I.F. at 32) that the Krimm Memorandum ignores the

" monitoring shadow." One reason is that FEMA does not regard Suffolk County's opin-ion polls as a " reliable daia base." L.F. at 27; Tr.18,324 (Keller); see also Tr.18,374 (Keller).

The Interveners argue (I.F. at 33) that, in essence, the Board should add the num-ber of people who might need shelter but no monitoring and the number of people who 13/ According to Mr. Keller, the LILCO exercise postulated a "very improbable acci-

. dent" in order to fully test LERO's responsa capabilities. Tr.18,413 (Keller); see Tr.

17,471 (Wat ts).

might need monitoring but no sliciter to come up with a number higher than 20 or 30 percent. First, even if the Board assumes that 20 percent need monitoring (from Mr.

Hulman's " footprint analysis") and that 20 percent need shelter, LILCO has still more than adequately provided for thht number, because it has made arrangements to moni-tor 46.6 percent of the EPZ with its primary monitoring method. L.F. at 40. Second, when confronted with the Interveners' argument, the NRC Staff tectified that the two groups (people needing monitoring and people needing sheltering) are not necessarily different populations. Tr.19,220-21 (Kantor). Third, both the 20 percent ffgure for )

shelterleg and the 20 percent figure for monitoring are conservative. The FEMA 20 percent number expressly includes a margin, see FEMA Ex.1, Tr.18,321-22,18,325 (Keller), and Mr. Hulman's monitoring-only analysis conservatively assumed no benefi-clai effect from protective actions, L.F. at 18-19.

The Interveners arguc that the " unusual origins" of the drimm Memorandum make it unreliable. I.E. at 33-37. This argument is similar to one that the Board struck l

from the State's w!itten testimony. The Interveners' complaint seems to be that the guidance memorandu.n was not published more formally and that it was not submitted to the State of New York first for comment. These proposed findings apparently re-flect one REPC's witness's pique over not having been given the Krimm Memorandum earlier, either by FEM A or by his own lawyers. See Tr.18,229 (Papile). However, the procedures by which the Krimm Memorandum was prepared say little about whether it is sound policy or not. The record shows that the Krimm Memorandum was based on a review of actual emergencies, and that it is continually being reviewed but that no rea-500 to change it has thus f ar emerged. Tr.18,466 (Keller). Facts such as who it was who first asked FEM A for guidance (1.F. at 36 % 60) and whether or not REPG was asked to comment first help very little in making the decision this Board has to make.

+18-l Finally, in a striking display of poor reasoning, the Interveners' findings claim that the treatment of the transit-dependent population is inconsistent with the 20 per-cent planning basis:

In the event of an emergency, not all of the EPZ would neces-sarily t.T evacutted and therefore not all of the transit- j dependent members of the EPZ population would be evacu-ated from the EPZ. Tr.18300 (Keller). Yet, FEMA assumed for planning purposes that 100% of the transit-dependent EPZ population wiL arrive at Hicksville. Tr.18302 -(Keller). We agree with this approach and see no logical reason to treat the general pcpulation differently for planning basis purposes.

1.F. at 37 n.21 In f act, the treatment of transient-dependent people and the treatment of tne rest of the EPZ are consistent. Planning to meet the 20 percent standard as-sumes that the entire EPZ evacuates and that 20 percent of the evacuees go to recep-tion centers for monitoring. Under the same conditions, with 100 percent of the EPZ evacuating, a_Il transit-dependent evacuees would go to the Hicksville reception center, because all evacuation buses go there, no matter how many people need monitoring.

L.F. at 62. The buses have to drop off their passengers somewhere; that somewhere, under the plan, is the Hicksville reception center. See Tr.18,436 (Keller); L.F. at 63.

The criterion, J.12, says people " arriving at" reception centers.

In any event, the treatment of bus passengers merely sepresents a conservatism in LILCO's planning basis. LILCO plans for 20 percent of the entire EPZ (including bus passengers) and then provides in addition for 100 percent of the bus passengers, thus double-counting to some extent.

II.B.3. LILCO's Testimony on Regulatory History of Section J.12_(I.F. at 38-40)

II.B.4. NRC Staff Interpretation (I.F. at 40-42]

At I.F. 38-42 Interveners urge the Board to ignore the testimony of M r.

Donaldson and Mr. Kantor, the only witnesses who offered information about the intent of the authors of NUREG-0654. The basis for this argument seems to be that neither

l l

Mr, Donaldson nor Mr. Kantor personally wrote J.12, and that Mr. Donaldson no longer has a copy of the precursor document that he did write. These criticisms miss the point that the evidence was the best, and the only, evidence presented. Mr. Donaldson helped prepare the " precursor" to NUREG-0654 and was responsible, af ter NUREG-0654 was published, for applying it. LILCO Ex.1 (Crocker et .a_1. direct testimony), at 8-9; Tr.17,438-44,17,449-50,17,452-56 (Donaldson). Mr. Kantor was offering the NRC Staff's opinion, not merely his own, and his testimony was informed by discussions with people at both FEM A and the NRC, including at least one who was involved in the prep-aration of NUREG-0654. Tr.19,214-15,19,232-33 (Kantor).E The Interveners express concern, I.F. at 43 n.25, over those evacuees who might leave their homes very promptly and arrive at the reception centers in a little over one ,

hour. Of course, the reception centers would not have to be fully manned to begin monitoring a few evacuees who might show up very early. And the worst that can be said aoout LILCO's Plan is that a small number of evacuees might have to wait at the entrance to the reception centers for a short time. This problem, if it existed, would be de minimis, especially in light of the fact that people would also have to wait in ,

I 14/ Mr. Donaldson testified that his opinion that orFy a small percentage of the EPZ would require monitoring was shared by other knowledgeable people of the NRC at the time. Tr.17,453 (Donaldson). He also test 2fied that in his opinion Criterion J.12 "does ;

in fact still support our original philosophy." Tr.17,455 (Do.naldson). Finally, Mr.

Donaldson, as co-cr. airman of the Region I, II, and Ill R AC's, was responsible for re-viewing and essentially approving reviews pursuant to NUREG-0654. Tr. 17,456 (Donaldson).

15/ The Interveners address Mr. Kantor's testimony that the 12-hour time limitation was not included for health and safety reasons but rather as a " benchmark" to be used in evaluating the resources available during the planning stage and find it to be a " dis-tinction of no significance." I.F. at 41. This merely reflects the Interveners' misunder-standing of J.12. Furthermore, the Interveners mischaracterize Mr. Kantor's testimony or, J.12 to be a rejection of the 12-hour time limit. 1.F. at 42. Nowhere in his testimo-ny did Mr. Kantor reject the 12-hour criterion. Rather, he explained that the relevance of the 12-hour limit is to provide planners guidelines for planning resources. Tr.

19.225-26 (Kantor); see also Tr. 17,477-78 (Watts).

queues later on if 30 percent of the EPZ came to the reception centers. Moreover, people who evacuated as quickly as the Interveners postulate would be (1) unlikely to be contaminated and (2) unlikely to perceive that they needed monitoring, since they would have successfully evacuated. Cf2 L.F. at 25 n.2'. The Interveners' argument about too-fast arrivals is a good example of a proposed finding that wastes everybody's time.

II.B.5. State Analysis and Polley (I.F. at 43-49)

At I.F. 43-49 Interveners argue that the State of New York has " implemented in practice" a 100 percent planning basis. I.F. at 44. They claim (without citing the record) on the next page, however (I.F. at 45 n.28), that at Indian Point the " data indi-cated capability to monitor more than 60% of the population." They do not explain why it is appropriate to allow Indian Point to operate without meeting a 100-percent stan-dard but not Shoreham.

Moreover, the record does not support the proposition that other New York plants can monitor 100 percent of the EPZ population in 12 hours1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months , contrary to the In-tervenors' proposed findings.EI See L.F. at 23-24. The Interveners claim that, for 13/ The evacuation time estimates for Indian Point, for example, apparently range from 6:55 to 11:40 hours for people who own automobiles in normal weather. See

_ Consolidated Edison Co. of New York (Indian Point, Unit Nos. 2 and 3), LBP-83-68,18 NRC 811, 962 (1983). Evacuation time estimates for the entire Shoreham EPZ are a maximum of 5.08 hours9.259259e-5 days 0.00222 hours 1.322751e-5 weeks 3.044e-6 months (for normal conditions in summer). LILCO Plan, OPIP 3.6.1, Att. 2, p.1 of 8. Even without traffic control the time for Shoreham is a maximum of 5.67 hours7.75463e-4 days 0.0186 hours 1.107804e-4 weeks 2.54935e-5 months for normal conditions in summer. Ld., p. 5 of 8.

H/ Interveners reject the FEMA witness's testimony on the mor.itoring capacity of reception centers for other New York State plants because he did not include certain State-trained resources. I.F. at 46. Once again the Interveners cite only part of the witness's testimony. Mr. Keller testified that the availability of SEMO (State Emergen-cy Management Office) workers who are assigned to the State Emergency Worker Per-sonnel Monitoring Center are not factored into county resources because they have other assignments in an emergency, and so they are not available to augment county monitoring personnel. Tr.18.484 (Keller).

example, there are sufficient numbers of trained monitoring personnel to monitor over 1

100 percent of the EPZ population for Nine Mile Point /Fitzpatrick. But the FEMA wit-ness had checked recently with the responsible county officer for that site and been told that the available capability she could count on was 35 to 40 percent. L.F. at 23:

Tr.18,371,18,379,18,472,18,481-83 (Keller).

Finally, the State witnesses' alleged aspiration to be able to monitor 100 percent of the EPZ in 12 hours1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months (which they admit is not realized at Indian Point) has little l l

bearing, even if it were realized, on the proper interpretation of a federal standard. '

And the State witnesses lef t no doubt that they are trying to interpret a federal stan-dard. Tr.18,237 (Papile). On this question the opinions of FEMA and the NRC Staff are clearly entitled to more weight than the opinions of New York State's REPG.

Finally, the Interveners argue that FEMA has been inconsistent and has not uni-formly applied a 20 percent standard. I.F. at 47-49. As noted in LILCO's findings, the FEMA witnesses explained fully those instances that the New York State witnesses had interpreted as inconsistent signals. L.F. at 22-23; Tr. 18,446-50 (Husar, Keller, Baldwin). As a result, there is no inconsistency on the reccrd in FEM A's position. Even ,

if there had been, it would prove nothing more than that FEMA's policy has evolved; there is no question about what that policy is today.

II.C. The Impact of an Accident (I.F. at 49-55)

At I.F. 49-51 the Interveners attempt to show that it is "likely" that a windshif t will occur and expose more people than 20 percent of the EPZ to a radioactive plume, it is generally conceded that this might happen; but the question here ic not what might happen in the worst case but what is an appropriate planning basis.

The Interveners observe that the EPZ subzones located in three compass sectors radiating to the west from the plant contain about 76 percent of the EPZ population.

1.F. at 51, citing Tr. 17,458-68 (Watts); SC Ex.1-3. The Interveners do not point out,

however, that the wind b!ows in those three directions only 11.9 percent of the time, and only 4.1 percent of the time in the middle of the three. LILCO Ex. 3 (sum of the three-year average for the SW, WSW, and W sectors); Tr. 17,752-53 '(Crocker).N The Interveners argue that in a six-hour period there is an 86 percent chance that the wind will change direction.1.F. at 51 n.33. But, as the record earlier in this proceeding showed, LILCO's protective action recommendations would take into ac-count the possibility of windshif t. PID,21 NRC at 778-79. So this is already accounted for in the Plan.

With respect to Mr. Hulman's analysis, the Interveners point out that a "truly conservative criterion of 95-98 parcent could more than double the number of people requiring monitoring." 1.F. at 55 1 88. This is basically a quarrel by two non-emergency planners with the NRC Staff's judgment. In any event, LILCO has also "more than doubled" the planning basis, providing for 46.6 percent of the EPZ popula-tion rather than the 20 percent called for by FEMA guidance. L.F. at 40.

The Interveners argue that the secondary containment system that LILCO has committed to build is not a condition of licensing and should be ignored. I.F. at 56 n.38. ,

'It is true that it is not a condition of licensing; indeed no other plant in the country has it. But the Interveners are, in effect, attempting to show that a generic national policy of a 20 percent planning basis should not apply at Shoreham because of Shoreham-specific features (principally meteorological). Since not only the meteorology at Shoreham is better (in this context) than average, and since there are other design f ac-tors that also tend to make Shoreham safer than average, it would be irrational to re-quire a more stringent standard for Shoreh8m, as the Interveners propose. See L.F. at 19.

l 18/ The reception centers, incidentally, are located in precisely the right direction, upwind of the plant. See Tr.17,890 (Johnson).

)

l

II.B.3.c. LILCO Criticism of the County's Survey (I.F. at 59-65)

The Interveners argue now, as they have before, that Suffolk County's opinion polls are reliable indicators of the general magnitude of an evacuation at some future Shoreham emergency. They argue first that the messages on the survey questionnaire

" closely approximated" messages actually used taring'LILCO's exercise. I.F. at 60. But they also note that their witness Dr. Cole eliminated material that was in his opinion

" confusing, contradictory, repetitious, or unnecessary." I.F. at 65 n.46. This very ad-mission invalidates their evidence; Dr. Cole is not an emergency planning expert. His j l

opinion on what is appropriate in an emergency message is entitled to little or no )

weight. And the effect of his editing was to reduce four separate monitoring advisories several pages long to one short question. See LILCO Ex. 4 at 3862-64. As to what is

" repetitious," repetition itself helps to produce a good information system.

At I.F. 60 the Interveners get to the crux of the issue about predicting human be-havior with polls:

The County's witnesses offered convincing testimony that ex- )

tensive research shows that the public's attitudes toward nu-clear power, and the public's fear of radiation, are very sta- '

ble. This in turn, demonstrates that the behavioralintentions ,

expressed in the survey are likely to be acted upon in the event of a Shoreham emergency.

I.F. at 60. That is precisely what has not been proved by the County, and has been dis-proved by LILCO. Fear of radiation and attitudes, or whatever it is that Dr. Cole's polls l l

are measuring, do appear to be relatively stable, not only on Long Island but every- j l

where. But to infer from that that behavior in an actual emergency would be similarly j l

unchanging and unchangeable is unfounded, i

12/ The Interveners argue that the consistency of the resula of various opinion polls shows a lack of bias. Actually, this could simply show that all of the polls are biased in the same manner. For example, LILCO's own witness testified that the Yankelovich survey contained bias, though less than the County's in his opinion. Tr. 2059 (Mileti).

(footnote continued)

l

' i The' Interveners continue to argue that LILCO's witness Dr. Lindell supports their case. I.F. at 62-63. They base this on their own interpretation of passages from one of his articles and on out-of-context quotations selected by their own witnesses. J

'l However, the' Board has the job of finding the truth, and the truth is that Dr. Lindell does not support, or believe in, the position of the C' ounty witnesses, and his research j does not support them either. LILCO Ex. 50 (Lindell rebuttal testimony); see L.F. at 85-86; see also Tr. 17,771-74 (Lindell). Had he been cross-examined, which the Interve-nors declined to do, he would have only further confirmed his disagreement.

II.B.3.d. The Cause of the Monitoring Shadow (I.F, at 65-69) l

)

At I.F. 67-68 the Interveners reject just about all empirical evidence of experi- 'I ence with radiological emergencies and radiation. To do this they have to go i

through considerable contortions. For example, they say that tourists' reaction to nu- l clear bomb tests near Las Vegas are irrelevant because the tourists "were not aware of l the tests." They cite Tr. 17,500-01 (Mileti). See I.F. at 68. This is a good example of the Interveners' selective use of the record. At Tr.17,501 Dr. Mileti testifies that "I do know that some of the explosions were quite visible to the tourists in Las Vegas." )

Likewise, in footnote 52 at I.F. 68, the Interveners attempt to distinguish various other examples of experience with radiation. In doing so they invalidati their own (footnote continued)

As every scientist knows, consistency of results can mean that all the results are consistently wrong, especially when the same type of test (in this case, opinion polls) are being used. The Interveners' reliance on opinion polls can only begin to gain scien-tific validity if they can be correlated with empirical data. The Interveno.s have tried to do this by comparing one of their polls to the TMI event, but, as explained at L.F. 83-84, Ihis effort too was misguided.

2_0/ The Interveners discount the experience of Chernobyl on the basis that the in-formation is too sketchy.1.F. at 125 n.93.

l case / For example, they explain the fact that property values have not declined around Three Mlle Island by saying that there are " numerous additional factors (jobs, schools,

_e_tc.) which affect property values." I.F. at 68 n.52. Similarly, they say that " military discipline and the penalties of fleeing one's post" made it unlikely that military person-nel would flee a widespread plutonium spill in the 1960's. Id. These attempted distine-tions simply point out that fear of radiation is not the overriding, dominant force im-pelling human behavior that the Interveners elsewhere argue it is. There are, as LILCO's witnesses have explained, many f actom that affect behavior in emergencies.

Finally, at LF. 68 n.52, the Interveners argue that any experience from the 1960's or earlier is irrelevant because there is no evidence that the " level of concern" was as high then as now. They argue that TMI and Chernobyl " sensitized the public to the hazards of radiation."EI It is, in the first place, implausible that people were not 1 sensitized to the hazards of radiation in the 1950's and 1960's, the years of the Cold War, fallout shelters, and the " missile gap." Indeed, as pointed out in LILCO's findings, the Interveners' witnesses have claimed that people were sensitized to radiation by Hiroshima and Nagasaki. L.F. at 84-85 n.71. The NRC has long recognized that people fear radiation. NUREG-0396, at I-1. And the Slovic et al. paper j

2 that the Interve-nors have principally used to support their thesis that people fear radiation was pub-lished at about the same time as TMI occurred, so the fears Fischoff had measured could not have taken TMlinto account.

M/ The evidence in the Waterford case was that increased publicity and education about nuclear plants have heightened public awareness so people will be more -- not less -- likely to cooperate with officials. Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076,1097 (1983).

12/ The paper usually cited by the Interveners for the proposition that " radiation is the disaster agent most dreaded by the public except for terrorism and warfare" is P.

Slovic, B. Fischoff, and S. Liechtenstein, " Rating the Risks," Environment 21, 14-39

( April 1979). See SC Ex.13 (Cole et al. direct testimony), at 26; Saegert, ff. Tr. 2259, at 6; Zeigler & Johnson, ff. Tr. 2789, at 23.

2_3/ In the 50-322-OL-5 proceeding on the exercise, Suffolk County also argued that the memory of Chernobyl w ould cause a " shadow." As Dr. Mileti testified there, the ef-(footnote continued)

III.B.3.e. The Effect of Emergency Information (I.F. at 70-74)

At I.F. 70 the Interveners argue that LILCO's EBS messages do nothing to calm people's fear of radiation or to explain why only some people might have been contami-nated. Moreover, the Interveners complain that the EBS messages'tell people outside the 10-mile EPZ that they are safe but that this would not be believed. EBS messages (like the information sheet given to evacuees, Tr.17,759 (Mileti)) are not designed to eliminate fear but rather to give people information by which they can form an accurate perception of the risk. See LILCO Ex.1 (Crocker e_t al. direct testimony), at 14; see also Tr. 17,770-71 (Lindell). In f act, LILCO's EBS messages are designed to give people a great deal of information; the Interveners' inaccurate summary of the EBS messages in their findings does nothing to prove the contrary.

The Interveners argue that LILCO did not rebut the assertion that LILCO has low credibility. I.F. at 72. In fact, LILCO presented a complete case on credibility in the earlier part of this proceeding and prevailed. See PID,21 NRC at 687-701.

At I.F. 73 n.58 the Interveners argue that it is not " irrational" to seek monitoring j l

for radiation when there is no objective reason to believe they have been contaminated.

LILCO submits that the Interveners are simply creating a semantic quibble over the 1 i

word " irrational" in order to evade the f act that their theories, and their evidence, are at odds with the Board's earlier findings on human behavior. Interveners continue to argue that emergency planners, and the NRC, should ignore experience with real (footnote continued) l feet of experience of previous emergencies on subsequent response to emergencies de- I creases sharply over time. LILCO's Testimony on Contentions EX 38 (ENC Operations) and EX 39 (Rumor Control), Mar. '13,1987, at 80. Providers of emergency information i at nuclear plants could easily overcome the slight potential effect of Chernobyl on pub-lic response to any future nuclear plant over the next several years simply by address-ing in emergency public information and warnings how and why experienced U.S.

emergencies are different from or similar to Chernobyl. Ld. at 80-81.

l

emergencies and instead simply ask people what they think they would do. They also argue, however, that what people say they would do is pretty much the same from time to time and from population to population.E Any theory that predicts that people will react in a certain fixed way, no matter what the objective situation, is propounding a theory, not of people as thinking, rational beings but as robots whose entirely predict-able reaction is triggered by the mere mention of the word " radiation."E This theory would be unbelievable even without evidence in the face of persuasive evidence to the contrary E it cannot be taken seriously.

At I.F.73-741 117 the Interveners argue that monitoring is "another form of information-seeking behavior." They cite nothing in the record to support this pro-posed finding. It is true that people in an emergency seek further information; it is not true that the record reflects that being monitored is information-seeking behavior in this sense. This attempt by Interveners' counsel to bring their theory in line with cor-rect emergency planning principles must be rejected as an af terthought, unsupported by evidence.

' Another example of how the Interveners are now attempting to force-fit their ,

minority views into the language of more informed emergency experts is that the Inter-venors have adopted the view that people will behave consistent with their " situational perceptions of risk." I.F. at 104; see also Section III.B.2.b below. But they argue that these perceptions will always be the same because they are dominated by unchanging pre-emergency fear of radiation. Thus the Interveners do not understand, or hope the M/ The Interveners argue that fear of radiation and intentions to evacuate or seek monitoring are unchanging over time, Tr.17,984 (Cole), except possibly that each actu-al emergency (TMI and Chernobyl, for example) make fear greater.

M/ See Tr.17,951,17,953-54 (Cole).

26/ See,el, Cordaro e_t aL.,I If. Tr.1470, at 120. Tr.1759-60,1763 (Mileti).

Board will not understand, the meaning of " situational" perception. Likewise the Inter- j venors accept that people seek information in an emergency and then define moni-toring as "information seeking." One would have to applaud these revisionist efforts as resourcefulif one did not have to deplore their disingenuousness.

II.D. Other Resources / Revised Monitoring Procedures (LF. at 74-77)

The Intervenodi make a number of niggling criticisms of the various organiza- l tions that LILCO could call on for additional monitoring help. These are simply quib-bles. The provisions for calling in additional help belong to the "ad hoc"N response that need not be planned for at all; LILCO has simply gone beyond the Krimm Memo-randum in this respect. See L.F. at 59-61. The Interveners say they "cannot take seri-ously" a f all-back plan to tell evacuees to shower at their destinations and then come in for monitoring later on. They do not acknowledge that this approach is supported by an EPA document that is currently being used in emergency planning. L.F. at 32152.

The Interveners argue that LILCO may not " rely" upon a " theory" that it could call on the State and counties to provide help in a worst-case emergency. They argue that LILCO did not present any evidence to support this " theory." I.F. at 77-78 n.60. In f act, LILCO's written testimony says that LILCO would call on State and counties' re-sources if necessary. LILCO Ex.1 (Crocker Lt al. direct testimony), at 54: see L.F. at

60. Interveners did not cross-examine on this testimony and may have overlooked it, but it is in the record nevertheless. There is also evidence, based on the experience at TM1, that outsiders would willingly help in an emergency response. See LILCO Ex.1 (Crocker et al. direct testimony), at 54; see also Tr.18,424 (Baldwin). And CL1-86-13 provides additional support. The evidence of how many State and county resources are available was offered by the Interveners themselves. See 1.F. at 44-45, 27/ One definition of "ad hoc" is "f ashioned from whatever is immediately available:

improvised." Webster's Ninth New Colleciate Dictionary (Merriam-Webster Inc.1985).

see also Tr. 17,555-56 (Dreikorn).

1 (footnote continued)

Tr.19,021 (Urbanik). The limit would depend on such things as traffic control, the time of day (KLD's analysis assumed the worst-case 7 a.m. to 7 p.m. period), and other f ac-tors that would limit background traffic, such as EDS advisories urging non-evacuees to avoid the congested areas.

M/ Interveners' charge that monitoring evacuees in vehicles "does not permit a co.mplete examination," I.F. at 87, is addressed in Section III.B.2.c below.

i

In alleging that LILCO's procedures for monitoring evacuee.s in vehicles is "less than standard," the Interveners assert that " proper monitoring" " includes E whole-body scan and thyroid monitoring . . . ." I.F. at 88,88-89 n.64 (emphasis added). But neither the New York State Plan nor any of the county plans in the State call for thyroid moni-toring. Tr.18,417 (Keller); see also L.F. at 49-50. See Section III.B.2.d below. The

. Board cannot give any credence to a proposed finding that argues for one standard for Shoreham and a different one for all other plants in the State.

III.B.2.c. Scope of Monitoring (I.F. at 89-92)

In Section III.B.2.b (discussed above) the Interveners claim that "[mlonitoring evacuees in their ears does not permit a complete examination of the evacuees," I.F. at 87, and in Section III.B.2.c they claim that "LILCO does not provide for a whole-body man," I.F. at 89. The Interveners do not explain what a " complete examination" en-tails, nor do they explain what "whole-body scan" means. FEMA testified that " ideally" a scan should cover the " entire" individual, Tr.18,304 (Keller), but without explaining what the " entire" individual means. Moreover, LILCO witness Linnemann defined a "whole-body count" as a scan taken in a hospital by a large detector that moves over

)

the person's body and measures the " radioactivity inside of the body from basically head to toe or the major part of the torso." Tr. 17,495-96 (Linnemann).

If by "whole-body" scan the Interveners mean a method that would guarantee that no contamination would be missed or that "the lower back, the back of the legs, the abdominal area and the buttocks," 1.F. at 89, would be surveyed, then New York State itself does not provide a "whole-body scan." The State's monitoring method for the general public is to move the probe "at about 1 f t./sec. around [the] entire perime- ,

ter of [the] person" while paying special attention to essentially the same areas LILCO l does, that is, "the head, shoulders, hands, feet, including soles and any moist areas." l l

LILCO Ex.1 (Crocker et al. direct testimony), at 41. FEMA witness Keller testified I

that a monitoring method that surveys only around the perimeter of an individual may also miss localized contamination. Tr.18,393 (Keller). Obviously, the lower back, the back of the legs, the abdominal area, and the buttocks are not monitored 11 only the !

" perimeter" of a person is surveyed. See I.F. at 112-16. Again, it appears the Interve-nors seek to hold LILCO to a different standard than the rest of New York. l l

The Interveners also distort LILCO's position when they state that LILCO be-lieves monitoring just the hands and feet of an individual would be sufficient. I.F. at l

~

89-90. Based on the parts of the record cited by the Interveners, LILCO witness Watts made no such statement. He testified that it is hard to understand how a person could {

get contamination on his body from bumping into or brushing up against a car without getting contamination on his hands or feet. Tr.17,475 (Watts). When questioned about l

people who had been relocated af ter a plume had pa'.m, Mr Watts responded that I

other areas of the body could be contaminated but that u.e p'/iaary area affected would be the shoes and hands. Tr.17,476 (Watts). Mr. Watts nuer said that monitoring just j the hands and feet would be adequate. Rather, Mr. Latts supports LILCO's procedures, l l

which monitor other areas of ;ba baay as well. ,

Furthermore, the Interveners' reliance on FEMA's testimony in this part of their findings is inaccurate and misleading. See I.F. at 90. FEMA's testimony that contami-nation might be eroded or brushed off a person refers only to contamination on a per- ;

son's feet and not to contamination on his hands, as the Interveners claim. Tr.18,401 (Keller). But even if Mr. Keller were talking about both hands and feet or if the Inter-venors were generalizing his comments to include contamination on an evacuee's hands, it is hard to imagine how a person could be immersed in a plume or pass through a con-taminated area, get contamination on his body, and have the contamination on all the areas monitored by LILCO eroded or brushed off, leaving medically significant contami-nation only in some isolated spot not directly monitored by LILCO. ,

l

Moreover, Interveners' argument that Mr. Keller's statement refutes LILCO's po-sition is misleading because, as noted above, Mr. Keller testified that a situation in which contamination had been brushed off the areas surveyed by LILCO but lef t on some other isolated spot is " fairly esoteric." Ld. The Interveners ignore this significant comment in their proposed findings.

III.B.2.d. Thyroid Contamination (I.F. at 92-95)

In their proposed findings the Intervenoi's f ault LILCO for not conducting thyroid mor.horing at the initial monitoring stage. They argue that thyroid monitoring is nec-essary to detect the uptake of radioactive iodine in the thyroid when no surface con-tamination is found. I.F. at 93. The purpose of requiring a thyroid scan, according to the Interveners, is to be able to provide treatment with potassium iodide (KI) as soon as possible. I.F. at 95.

The Interveners' argument does not withstand scrutiny because it neglects the matter of timing. For KI to be most effective in blocking the uptake of radioactive 10-dine in the thyroid, it should be administered at about the time of exposure. I.F. at ?'l

n. 68. For thyroid monitoring to have its intended effect at the initial monitoring stage, according to the Interveners, an evacuee must be monitored just when there is enough uptake of radioactive iodine in the thyroid to be detected but not so much that the administration of potassium iodide has no benefit. If KI is taken three to four hours af ter exposure, its effectiveness drops approximately 50 percent. Ld. Therefore, fol-lowing the Interveners' reasoning, thyroid monitoring must be done within three to four hours af ter exposure to have even a 50 percent usefulness, even assuming it can be ad-r..inistered as soon as the monitoring is complete, but not so soon af ter exposure that 33/3 Treatment will only have a 50 percent benefit at this point if KIis administered immediately, that is, at the reception center where the individual's thyroid gland was surveyed rather than at a hospital. The Interveners do not state whether they believe that LILCO should administer KI at the reception centers or whether the individuals should be sent to a hospital for treatment.

the iodine is not yet detectable. The hope that this exquisite timing can be achieved by any plan is wildly unrealistic. See also Tr. 18,052-59 (Minor, Radford).

What is even more incredible about the Interveners' position on thyroid moni-toring is that New York State does not requhe thyroid monitoring at any of the other reception centers in New York, Tr.18, 417 (Keller),b and has a State policy against administering KI to the general public, LILCO Ex.1 (Crocker et al. direct testimony), at 58; Tr.18,163-64 (Papile),18,418 (Keller). Also, the Interveners ignore all of the testi-mony arguing against the usefulness of thyroid monitoring and against the adminstration of KI to the general public.

Interveners also imply that, since LILCO provided for thyroid monitoring at tne initial monitoring stage in earlier revisions of its Plan, not to do so now is a defect ren-dering its monitoring method inadequate. This argument is totally without substance.

Just because a plan contains certain measures (particularly measures more conservative than those used virtually anywhere else in the county), it does not mean that those measures are essential or required. Otherwise no planner (utility or government) would strive for higher standards but would instead implement only the bare minimum. Thy- ,

roid monitoring at the initial monitoring stage is a very conservative approach, Tr.

17,564 (Dreikorn); thyroid monitoring at this point is not necessary.

3_4/ The Interveners' comment in their findings "that thyroid monitoring is not routinely reauired under plans at other New York State nuclear plants," 1.F. at 94 (em-phasis added), may imply that on occasion it is required. But the testimony of FEMA witness Keller, cited by the Interveners, indicates that n_o plan in New York State ever requires thyroid monitoring and that KI is only administered "for a few captive popula-tions but not the general public . . . ." Tr. 18,417-18 (Keller).

I 35/ In LILCO's proposed findings this testimony is thoroughly discussed. See L. F. at 49-50. Both State and County witnesses admit that there is a great deal of controversy over the use of potassium iodide, Tr. 18,038-39 (Radford), and that many people (including the Commissioner of Health from the State of New York) consider it to be of little or no use to the general public, Tr.18,165 (Baranski).

3_6/ Interveners imply that since the Board found LILCO's prior thyroid monitoring procedures adequate, those procedures are required. 1.F. at 94. The Nard drew no such conclusion. See Concluding PID. 22 NRC at 423-26.

l LILCO does, however, still provide thyroid monitoring for those evacuees who have been found to be contaminated at the initial monito, ring stage and have been sent to be remonitored at the decontamination trailers. Tr.17,564-65 (Watts). No other plan in New York State apparently has even this conservative measure.

III.S.2.e. Vehicle Monitoring (I.F. at 96-97)

The major problem with the Interveners' proposed findings on vehicle monitoring is that they have no support in the testimony. For example, FEMA witness Keller does not say, in the transcript pages cited by the Interveners, that LILCO's vehicle moni-toring could miss contamination "which in turn could cause contamination of. other items or people coming into contact with those contaminated vehicles." I.F. at 96, cit-ing Tr.18,308,18,399,18,401 (Keller). Mr. Keller's testimony refers to contamination on a person that would be found mainly on the hands and feet. Only once did Mr. Keller mention a vehicle, and then it was in reference to contamination eroding or brushing off the vehicle. Tr.18,401 (Keller).

One of the Interveners' most glaring misrepresentations is their citing New York State's prefiled testimony to support their statement that "[t]he trunk of a vehicle should be routinely monitored to detect any contaminated items taken from the EPZ in the vehicle trunk." I.F. at 96 n.70 (emphasis added). In fact New York State's testimo-ny, on the page cited by the Interveners, states that "we believe that the trunk of a ve-hicle should also be monitored [f *here are indications of contamination in other parts of the car." NYS Ex.1 (Papile et a1. direct testimony), at 20 (emohasis added). LILCO's I

procedures require exactly what New York State in its prefiled testimony says is neces-sary. See L.F. at 64-66.

f 1

III.B.2.f. The Fallback Procedure (LF at 97-98) J The Interveners' entire argument against LILCO's backup monitoring methods rests on their contention that the planning basis is 109 percent of the EPZ population.

As noted above and in LILCO's proposed findings, the weight of the evidence over-whelmingly supports a 20 percent planning basis. See L.F. at 10-33. _A_d hoc measures 3 (or such backup methods as LILCO's, which are by no means jLd hoc) would only be im-plemented af ter the demands of the planning basis had been exceeded. At this point, J.12's 12-hour criterion does not apply. L.F. at 59-61. While a_d boc o measures could be implemented once the 20 percent planning basis had been exceeded, LILCO would not I

implement its backup procedures until its primary monitoring methods could no longer I meet the demand. That point would be when 46.6 percent of the EPZ population was being processed at LILCO's three reception centers. See L.F. at 59. j III.C.1. Time Reauired Using Appropriate Procedures (I.F. at 98-100)

Little credence can be given to Interveners' proposed findings on the time re- !

I quired to execute LILCO's monitoring procedures, because their estimates are not based I on LILCO's procedures. Rather, the Interveners reach their conclusions based upon how long the State says it takes to monitor individuals at reception centers for other nuclear power plants in New York. 1.F. at 98-99. The procedures are differentt the comparison can not usefully be made.E 3_I/ Interveners assert " widespread adoption" of tne two-to-three minute estimate.

1.F. at 99. No evidence was presented that this claim is true. The. record indicates only I that New York State has such an estimate. FEMA, on the other hand, stated that it has I

evaluated plans in New York based on a 90-second estimate. Tr.18,421 (Keller).

In any event, LILCO has been so conservative in meeting the 20 percent criteri-f on that the Interveners could be right in many respects and still not prove their case.

Interveners argue that adequate monitoring would take twice as long. 1.F. at 76. But even if LILCO's monitoring time were doubled to 200 seconds, LILCO would still be able to monitor more than the 20 percent planning basis in about 12 hours1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months .

M/ The New York State Emergency Worker Handbook gives a two-to-three-minute estimate lor proper scanning of an individual, l.F. at 98 n.71. Thyroid monitoring, (footnote continued)

III.B.2.b. _ Behavioral Delays (I.F. at 101-05)

A major flaw' with the Int.ervenors' theory that LILCO's 100-second estimate is too low because it does not take evacuee stress and frustrationW into consideration is that there is no testimony that these factors are ever calculated into monitoring time estimates for other emergency plans. For example, FEMA's monitoring time estimates are based strictly on actual monitoring time. L.F. at 53, citing Tr. 18,305, 18,391-92 j (Keller).

1 In addition, there is no evidence in the record that evacuee stress, frustration, or aggression has presented any problems during evacuations in the past. LILCO witness Mileti, on the other hand, did provide testimony that he knew of no documentation of "an increase in traffic accidents or anti-social behavior in any of these emergencies.'"

LILCO Ex.1 (Crocker ,e_t aj. direct testimony), at 29. The Interveners apparently know of no such documentation either; they presented no empirical research on emergency l behavior to support their theories.N i

(footnote continued) however, is not required in New York State. If thyroid monitoring were done, as the In-tervenors argue should be required of LILCO, presumably the State's time estimate would have to be increased to three-to-four minutes, since Interveners contend a thy-rold scan takes about one minute.1.F. at 99 n.72.

Also, the State's own estimates are not entirely consistent internally. The State procedure calls for moving the probe at one foot per second around a person's "perime-ter." Assuming a person's perimeter measures, say, 20 feet, the one-foot per-second estimated speed equals a total of 20 seconds to complete the monitoring process.

3_9/ The Interveners refused to even address the usefulness of LILCO's proposed in-formation sheet to answer evacuee questions, I.F. at 103 n.76. The information sheet, however, should be very helpf ul in answering evacuees' questions, i

10/ The Interveners' response to the evidence of past emergencies is that there is not enough information to tell whether aggressive or confused behavior manifested itself during the evacuation at Three Mile Island. I.F. at 103 n.77. There might have been ef fects on the evacuation, Interveners postulate, but no one observed or recorded 1 (footnote continued) l l

The Interveners' assertion that they, like LILCO witness Mileti, believe that "in

. an actual emergency at Shoreham, most of the public would behave in ways consistent with their situational' perceptions of risk,"U LF. at 104 citing SC Ex.16 (Radford e_1 l

l al. direct testi. mony), at 25, as noted above, is a Lelated attempt to cloak an aberrant theory in respectable language. Dr. Milett testified that peoples' situational percep- l tions of risk will be "predominantly influenced by the emergency information they re-ceived at the time rather than their pre-emergency generic fear (be it high, low, or in the middle)." LILCO Ex.1 (Crocker et a_1. direct testimony), at 26; see also Tr.17,543, j 17,772-73 (Lindell). The Interveners' theory that radiation triggers a knee-jerk human reaction is completely at odds with the concept they attempt to appropriate from LILCO's experts. I I

Equally without foundation is the Interveners' assertion that circumstances on - 1 Long Island would resemble that of a fire in confined spaces. LF. at 104 n.78. The In-i tervenors presented no empirical evidence to refute Dr. Mileti's clear distinction be-tween human behavior in a communitywide mass emergency and a non-mass emergency a

fire in a confined space. LILCO Ex.1 (Crocker et a_1. direct testimony), at 27-28. As ,

l with " situational perceptions of risk," the Intervesors are simply attempting to squeeze their own unfounded theory into the language of more informed experts.

(footnote continued) them.

This is an argument of desperation. TMI must be one of the most studied and most reportedhn accidents in history. If no one saw or reported any effects such as driver aggresslon or inability to cope, then a rational decisionmaker must conclude that these effects dio not exist.

41/ This language was quoted in the Interveners' direct testimony verbatim from LILCO's direct testimony. Compare I.F. at 104, SC Ex.16 (Radford et al. direct testi-mony), at 25, and LILCO Ex.1 (Crocker et al direct testimony), at 26. However, the County eliminated the remainder of the sentence about the effect of emergency infor- ,

mation on situational perceptions of risk.

l i

One final misrepresentation in Section III.B.2.b is the Interveners' claim that monitoring time will be increased because the monitors will have a difficult time mak-ing accurate readings with the Eberline RM-14. I.F. at 105-06 n.'79. The Interveners ,

state that the RM-14 has a fluctuating needle that the monitor must allow to stabilize before mentally averaging the reading to determine the level of contamination. Ld. But U LILCO explained that the monitors do not have to average the readings on the RM-14, !

because the RM-14's alarm will sound whenever contamination is detected above an ac-ceptable value. See L.F. at 56-57. Therefore, the monitors will only have to listen for-the alarm, which will be set ct its maximum level. Ld.; Tr.17,575 (Watts),17,596 (Dreikorn). The. Interveners completely ignored this fact and the fact that LILCO, FEMA, and their own witness testified that the RM-14 is a reliable instrument com-monly used in the industry. L.F. at 56-57. l III.D. Registration (I.F. at 106-08)

In Section III.D the Interveners again misrepresent the record by presenting only selective portions of a witness's testimony. Here the Interveners argue that LILCO's

' registration method is inadequate because LILCO does not record the name, destina- '

tion, and other information about each evacuee who is monitored at its reception een-ters. I.F. at 106.W In support, the Interveners reference FEMA witness Keller's testi- ;

mony and state that "[a]dequate registration of evacuees is important for purposes of radiological health." Ld., citing Tr.18,274 (Keller). This is not an accurate representa-tion of Mr. Keller's testimony. Rather, Mr. Keller testified that "the radiologically im-portant portion of registration is in the event that an individual has been determined to be contaminated . . ."; in that event, he said, the amount of contamination, the area 13/ Interveners state that LILCO records only the vehicle license plate number and ,

the number of passengers in the vehicle. I.F. at 106. LILCO also records, during this initial monitoring stage, what state is indicated on the license plate. L.F. at 55.

J I

contaminated, e_1c. should be recorded for each contaminated evacuee. Tr. 18,274 (Keller)(emphasis added). "[T]he radiologically health significant purpose is really the tracking and the record [ing] of degrees of contamination, the success or not success of i

decontamination efforts." Tr.18,275 (Keller). Mr. Keller added tilat merely registering an evacuee to prove that he had been checked and found to be uncontaminated was not "a health and safety issue." Ld. Once an evacuee has been found to be " clean," "the ra-dialogical health issue has stopped." Id.

The Interveners also incorrectly imply that Mr. Keller believes that registration is necessary to call back people who may not have been monitored adequately. I.F. at 107. Rather, based upon a hypothetical that a monitor might not have been monitoring properly, Mr. Keller responded that he did not believe "you would be able to identify that someone was not following the procedure properly" and that he did not "know how you would identify those persons who were monitored incorrcetly." Tr.18,277 /Keller).

As LILCO noted in its proposed findings, it does collect extensive information, like that suggested by Mr. Keller, about those individuals sent to the decontamination trailers for remonitoring and, if necessary, decontamination. See L.F. at 55-56. ,

III.E. Decontamination (I.F. at 108-12)

In their proposed finding on decontamination, the Interveners discount LILCO's (and FEMA's) evidence about the number of people who might need complete showers.

They argue that the percentage should be much higher than LILCO plans for, but with-out providing any basis for their argument.E See I.F. at 109-11. For planning 4_3/ The Interveners base their high estimate of the number of people who might re-quire full showers on testimony that wind changes might cause a plume to cover a larger area of the EPZ. LF. at 110. This possibility has never been disputed but, as pre-viously discussed in LILCO's proposed findings on the planning basis, it is not dispostive.

Moreover, the number of people touched by a plume does bear on the number of people who need some kind of decontamination, but the number needing full showers is liPely to be much smaller, as LILCO's testimony showed.

purposes LILCO estimates, based on actual cases of contamination,E that ten percent of the 20 percent planning basis might need complete showers. LILCO Ex.1 (Crocker et al. direct testimony), at 57; L.F. at 69.

The Interveners argue that the number of showers should be higher because evacuees may insist on a shower even though it is not' needed.1.F. at 110. There is no empirical evidence that this might happen,N and speculation is not enough to support a finding.

The Interveners criticize LILCO's back-up procedure, I.F. at 111, that calls for l evacuees to proceed to their ultimate destinations and take showers if LILCO's moni-toring methods cannot meet the demand, L.F. at 61. But this procedure is not " lack of I

planning," Es the Interveners claim, LF. at 111, but rather a prudent Plan provision that I goes far beyond the required planning basis and addresses any possible situation that might arise.

Nowhere in their proposed findings on LILCO's decontamination procedures do the Interveners discuss FEMA's testimony on how many people might require a full shower. FEMA witness Keller testified that most people would not need a ecmplete shower and that most contamination would be removed relatively easily by simple washing techniques, Tr.18,403 (Keller); see also L.F. at 67-68. Furthermore, the Inter-venors ignore the testimony of the NRC, FEMA, and LILCO that since protective 14/ LILCO witnesses Linnemann and Watts .both testified about their experiences with actual contamination and the decontamination procedures used to remove the con-tamination. See L.F, at 69.

4_5/ The Interveners try to find some importance in the f act that LILCO witness Linnemann did not know of any " studies" about the number of showers that might be needed in the event of a nuclear power plant accident.1.F. at 110 n.82. But, the Inter-venors presented no such studies themselves. and Dr. Linnemann at least was able to discuss his actual experience, involving the decontamination of about 60 people. Dr.

Linnemann's experience carries considerably more weight than the Interveners'specu-lations. According te Dr. Linnemann none of these 60 people requested decontamina-

.on by showers when it was not needed. Tr.17,689 (Linnemann).

y i~

action recommendations are based on plant conditions, it was never anticipated that many individuals, if any at all, would be contaminated. L.F. at 68-69.

t :

III.F.1_ Radiological Health Effects (I.P. atl1.2-16)

The Interveners' arguments about health effects misses one of the main points of LILCO's evidence: that "[als a general matter, the dose received from the contamina- '

tion on a person's body is small compared tc the dose he received from having been in the plume in the first place." L.F. at 34. The issue here is whether delay in reaching decontamination facilities might be a health problem; the dose in question comes from skin contamination. To get the. kinds of doses the Interveners postulate from skin con-tumination, a person would have gotten a much greater dose while in the plume, see Tr.

18,389,18,405 (Keller); the contamination (and the travel time) would be insignificant in comparison. The interveners' witness underscored this point, in a sense, by assuming doses from total exposure, not exposure from skin contamination. See Tr.18,043.

(Radford).

Another problem with Interveners' reasoning in Section Ill.F.1 is that it assumes unrealistic levels of contamination that are not based on any accident scenario. Rather than present any such evidence, Suffolk County witness Radford merely claimed that such high levels are possible. SC Ex.16 (Radford e_t a_1. direct testimony), at 35.

The Interveners inake two arguments here: first, that delays in monitoring will increase cancer risks and, second, that enough contamination will go undetected due to )

the type of monitoring LILCO will conduct to increase cancer incidents and other la-tent effects.1.F. at 113. For neither argument do the Interveners provide any details about the circumstances that might result in these health consequences. For example, l l

Dr. Radford's assumptions of 15 rad whole-body and thyroid doses for unremoved con- j tamination and 5 rad and 10 rad doses from initial surfcce contamination, SC Ex.16 i

(Radford et al. direct testimony), at 33-34, say nothing about doses from direct l

'~

exposure to the plume itself (la, direct immersion dose), direct exposure from ground deposition, or inhalation. On the other hand, LILCO wi ness t Linnemann presented cal-culations showing that the health effects resuJting from a delay in monitoring would be insignificant. I.F. at 115. Although Dr. Linnmann's calculations are based on a specif-ic accident scenario and use accepted methods of computing doses remaining on an in- F dividual, LILCO Ex.1 (Crocker et al. direct testimony), at 38, tile Interveners reject them outright as too low, I.F. at 115.W They provide no reasons, however, why they n think his calculations are wrong. Instead they rely upon Dr. Radford's groundless asser-tion of significant dose levels.

Both LILCO and FEMA testified that undetected localized contamination on a a-person would not be medically significant and would most likely be more of a nuisance than a health concern. See L.F. at 46. Here again the Interveners reject this testimony 4 in f avor of Dr. Radford's testimony. But anyone can postulate dose levels, as Dr. 'E Radford does, that will have detrimental health effects. Such an exercise is meaning-less unless it bears some relation to what realistically might happen if an accident were to occur.

The Intervewl; also try to exploit FEMA's testimony that low levels of radiation lef t on an individuU over time could cause an increased chance of cancer. I.F. at 114-

15. The Interveners' characterization of FEMA witness Keller's testimony on this sub-ject distorts and exagget 'as the significance of his full testimony. While Mr. Keller did agree that the inct, ed chance was there, he was reluctant to make any -

4_6/ It appears that the only reason the Interveners reject Dr. Linnemann's calcula-tion is that he based it on the scenario used at the February 1986 exercise. I.F. at 115.

That scenario postulated a high enough release of contamination to result in a total body gamma exposure of about 60 mrem / hour f rom the plume for a person outdoors at five miles from the plant. LILLO Ex.1 (Crocker et al. direct testimony), at 38. The '

calculation assumed three hours of exposure, resulting in a dose of approximately 180 mrem.

m m =- -- - _ _ _ _ _ . _ _ _ _ _ - - - _ - - -

generalization about such a statistically small population as that found in the EPZ. Tr.

18,294 (Keller). In clarifying his position Mr. Keller talked in terms of a million people I based on "a million man rem or a hundred thousand man rem . . . ." Tr.18,294-95 (Keller). For this situation Mr. Keller concluded that the statisticalincrease would be 4 about one in a million. Tr.18,294 (Keller). To generalize from this testimony to saying that any contamination missed using LILCO's monitoring method willincrease the risk j of cancer to such a degree that LILCO's methods are inadequate is a gross misrepresent-tation.

Any dose of radiation will, statistically spsaking. increase the risk of cancer.

But the issue here is whether delay in reaching decontamination facilities is so signifi-cant as to preclude meeting NRC regulations. There is no evidence that it is.

I III,F.2. Other Adverse Health Effects (I.F. at 116-18)

The Interveners' complaints about LILCO's monitoring procedures in Section III.F.2 are, for the most part, minor. Most of the details they claim that LILCO should provide for in its Plan are measures that, according to FEMA witness Keller, can be handled on an ad hoc basis at the time of the emergency. Tr. 18,282-83 (Keller); see generally L.F. at 69-70. Thus letters of agreement to obtain blankets, portable toilets, or other supplies are not needed. I_d. As LILCO witness Crocker explained, LILCO's .

I

" logistics support group" will obtain these supplies as needed during an emergency using f

\

pre-established open purchase orders. LILCO Ex.1 (Crocker et al. direct testimony), at j 55; Tr.17,669-71 (Crocker). If LILCO would need to provide evacuees with food and water (a need LILCO doubts would ever arise, since evacuees will be on its pre.mises for 1

a very short period of time, L.F. at 58), LILCO could obtain food and cups for water I (each reception center has running water that is drinkable) through its logistics support group on an a_sl hoc basis See L.F. at 70. To require that such detail be included in an emergency plan goes beyond that called for by the regulations. Louisiana Power & ]

)

i

- IJrht Co. (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076,1107 (1983).

Interveners' assertion that the LILCO Plan provides no assurance that- heavy equipment kept in the transportation garages will be removed is, at best, trivial. I.F. at 118. It is sufficient that LILCO has committed these~ buildings for sheltering evacuees during an emergency and will clear the buildings at that time for that purpose. L.F. at 69-70. It is hard to conceive of what greater assurance the Interveners could seek.

Can anyone really believe that LILCO personnel would insist on finishing a lube job while evacuees lined up at the gate?

Furthermore, no evidence was presented that medical personnel are required at reception centers. While Mr. Keller did state that most emergency plans provide for

'some type of health personnel, he added that if reception centers and congregate care facilities were physically separate, then it was less likely that the reception centers would have medical personnel. Tr. 18,428-29 (Keller). Since the Red Cross will provide medical personnel at the congregate care centers, and since evacuees will likely be at the reception centers for only a very short period of time, there is no need for medical ,

personnel at LILCO's reception centers. L.F. at 57-58.

IV. Evacuation Shadow (I.F. at 120-129)

At I.F.120-129 the Interveners argue that the location of the reception centers worsens the hypothetical " shadow phenomenon" problem. The Interveners define the issue thus: 1 The issue before us is whether the location of the reception centers is an additional f actor making an evacuation shadow ;

more likely, and, furthermore, whether the location of the re- l ception centers will stimulate a larger evacuation shadow l than would occur if the reception centers were closer to the j I. plaat. l 1.F. at 1211 192. The Interveners note as a "sub-issue" the question whether locating j i

i i

)

i

)

reception centers in " densely populated residential areas" will influence local residents to evacuate the communities surrounding the reception center sites. I.F. at 121 l 1 193.

l IV.B. The Effect of the Distance to the Reception Centers (I.F. at 121-27) 1 By and large, the Interveners' findings on the effect of the location of the recep- )

I tion centers on the perception of the zone of risk are simply a recital of their own wit- l nesses' theory, which is that people will perceive the recepticn centers as being the i

nearest " safe" location and evacuate out to that distance. There appear to be no empir- j i

ical data whatsoever to support this theory.

At 1.F.121-127 Interveners argue that the location of the reception centers would be a " spatial cue" that would define the risk, and thus the zone of evacuation, in ;

l people's minds. Interveners argue principally their familiar thesis that radiation is an j invisible hazard and therefore that people will seek " spatial" cues. They then leap to I t

the conclusion that reception centers v'ill be such spatial cues. In effect, they argue that both the 10-mile EPZ and the information in EBS messages will be of no conse- ;

1 quence and that people will define the " risk zone" based on the location of the recep- I tion centers. Interveners' findings confirm LILCO's main point in its findings: that there is not a shred of empirical data to support this theor:y. See L.F. at 36. It is, in the first place, implausible that the public would seize upon the reception centers, which they would presumably learn about from the emergency planning brochure or II/ It appears that Interveners may be attempting to relitigate the question of the i

" shadow phenomenon" resolved earlier. That is, they seem to be arguing that the loca-l tion of the reception centers is a new f actor that makes their earlier case stronger. To l the extent they are arguing that the location of the reception centers has an impact on l l the evacuation time estimates for evacuation f rom out of the EPZ, their argument is l l precluded by the fact that the Board refused to admit such an issue into this proceed-ing. Mcmorandum and Order (Rulings on LILCO Motion to Reopen Record and Remand of Policy and issue). at 20 (December 11, 1986).

EBS -messages, and ignore all the other information about the risk in those same' sources. It is also implausible to exalt a single factor into the most important (indeed the only) det?rminant of the extent of the shadow phenomenon. In fact, as was made clear in the record earlier in this proceeding, there are a host of f actors that determine !

how people receive and react to emergency information. LILCO's design of the EBS messages has taken these factors into account.

)

Interveners take issue with LILCO's conclusion that the degree of shadow evacu-i ation will drop off dramatically as distance increases from the plant. LF. at 123. But no one seems to dispute that distance from a hazard is one of the features that effects people's perception of risk; Dr. Johnson himself has made much of the " distance ciecay" phenomenon. L.F. at 29 n.33; see Tr.18,007 (Johnson)(there was a drop-off in evacua-tion af ter about 10-12 miles). LILCO's witnesses testified long ago that the closeness of a hazard affects perceptions of the risk. L.F. at 29 n.33. There is nothing remarkable about this, nor is it anything ; hat LILCO has failed to take into account, as the Interve- I nors imply.

The Interveners recite that " spatial considerations" effect the perception of risk. ,

i But their paragraph 197, at I.F.124, is simply a repetitior, of their traditional argument that people believe that the radiation hazard can extend beyond 10 miles. This para-graph has nothing to do with the location of the reception centers. Paragraph 198 ,

z reargues the " credibility" issue, which has already been litigated. I I.F. at 1251 199 argues that the Board has already rejected LILCO's argument that the County's theory is an attack on the 10-mile EPZ. But the standards for admit-ting testimony in the face of a motion to strike and the standards for making a decision are dif ferent. The truth is that a number of the County's arguments are simply dis-guised attacks on the 10-mile EPZ. See generally Tr. 17,896-97 (Johnson). Now pending j before the Commission is the issue whether the EPZ ought to be expanded because of l

52-

.the'so-called " shadow phenomenon"; the Interveners have managed to insert the'same issue into this proceeding. But that does not mean they should be allowed to prevail on it.

l At I.F.125 n.93 the Interveners discount the experience at Chernobyl on the basis that the information was "too sketchy to allow us to draw any conclusions on the basis of the Chernobyl accident." Thus, once again, while claiming that radiological emergencies are unique so that experience from natural and nonradiological technologi-cal disasters are irrelevant, they also work hard to explain away evidence from real ra-diological disasters.

I.F.1261 200 argues that "the absence of environmental cues will make the lo-cations of the reception centers a very important factor." Again the Interveners argue that the invisible nature of radiation makes it unique, and that the public's fear of this invisible agent will render information provided during the emergency essentially use-less. This is another collateral attack on all the Board's earlier findings about the way people react to emergencies and the value of emergency information. It is also, in ef-tect, an attack on the Commission's regulations.

In I.F.126-271201 the Interveners argue that the increased shadow phenome-non will increase congestion on the evacuation routes and delay EPZ evacuees in their efforts to reach the reception centers. This may in turn, the Interveners argue, result in adverse consequences. Isle Interveners do not quantify this hypothesized delay.

Flowever, in light of the testimony that delay would not likely result in significant health effects N and that evacuees from the EPZ woeld tend to enter the evacuation 4 46/ The NRC Staff testified that the 12-hour guideline was not directly arrived at as a matter of health and safety. Tr.19,225 (Kantor). It was "a means of indicating to State planners that the capabilities, the resources, they would have to devote to this plan area. . . ." Tr.19.225 (Kantor). See also Tr. 18,293-94,18,295,18,415 (Keller); L.F.

at 34-35. <

i routes at their eastern ends and to have "first use" of the major evacuation toutes, the Interveners' speculations about the increased " shadow phenomenon" are of no conse-quence. They are certainly not sufficient evidence to justify the denial of an operating license.

W.C. Evacuation from Communities Around the Reception Centers (I.F. at 127-29)

The Interveners, citing almost entirely their own witnesses' naked opinions, argue that people will evacuate from around the reception centers. Again, there is no empirical evidence to support this thesis. L.F. at 37-38. There is, however, empirical euldence tending to refute it, and predictably the Interveners distinguish it with argu-ments that must be characterized as lame. I.F. at 129 n.96.

The Interveners argue that the three reception centers are situated in " densely populated residential neighborhoods and commercial areas." 1.F. at 1271203. A FEMA witness, on the other hand, testified that the areas are typical of Long Island. Tr.

18,280-81 (Keller). Reception centers are commonly located in residential and com-mercial areas. Tr.18,365 (Keller). ,

The Interveners repeat their witnesses' theory that people will view the recep-tion centers as a hazard and evacuate the areas surrounding them, a theory that ap-pears to have no empirical basis at all. The Interveners argue that this " localized evac-uation" would have the effect of " exacerbating congestion around the reception centers, thereby further delaying and complicating the arrival of EPZ evacuees." 1.F.

at 1281203. They make no attempt to quantify this effect. Also, they ignore Mr.

Lieberman's observation that, if people were all that frightened of the reception cen-ters, they would probably evacuate in advance of the arriving evacuees and make the traffic situation better, not worse. They would also be expected to travel away from the reception centers (generally toward the west) rather than toward the plant and into-what the Interveners argue is a zone of perceptional " undesirability." See L.F. at 87-88.

The Interveners address in a footnote, I.F. at 129 n.96, the only empirical data presented on their " local unwanted land use" theory, which shows that people do not automatically flee even real hazardous waste sites (let alone' reception centers for evacuees). The Interveners simply cite their own witnesses, SC Ex.15 (Johnson and Saegert direct testimony), at 19-20, to argue that reception centers are somehow dif-ferent from hazardous waste sites like Love Canal and Times Beach:

While " authoritative information" may have been necessary at those locations before evacuation commenced, Nassau County residents who awakened to find their neighborhoods the focus of an evacuation and decontamination project will need no further confirmation of the fact that the areas will eventually be hazardous.

I.F. at 129 n.96. This position is unfounded, particularly since LILCO proposes to col-lect and remove the radioactive washwater and the disposable wipes used to decontaminate automobiles. LILCO Ex.1 (Crocker e_t a_1. direct testimony), at 60, 61.

Once again, the Interveners argue that the public will behave in essentially a panicky, irrational fashion, hearing only that radiation will be at the reception centers but ei-ther not hearing, or ignoring, additional information that the radiation will be contained.

V. Traffic and Reception Center Capacity Issues (I.F. at 130-170)

LILCO urges the Board to retain a sense of perspective about the traffic issues.

Unlike the other issues that are litigated in NRC proceedings, emergency planning is-sues require the Commission and the Board to deal with, not nuclear plant systems, but the world at large. Throughout this proceeding the Interveners have insisted that LILCO's burden is to make the world at large safe for the plant, not to make the plant safe for the world. Neither LILCO nor any other emergency planner at any r.uclear pant can change the world to eliminate all of the potential problems that might arise in a communitywide disaster. Nor do the NRC regulations require any such thing. As is

shown by NUREG-0396's observation that measures such as building shelters and storing blankets are not recommended, NUREG-0396 at 14, and as shown further by the ab-sence of a time limit for evacuation, what is required is that the planners take the world as they find it and plan for the efficient E use of resources so as to avoid the problems of poor organization and lack of preparation that occurred at Three Mile Is-land.

With respect to reception centers, LILCO has gone above and beyond the call of duty in this respect. No other applicant has had to analyze traffic to the reception centers. L.F. at 72 1 139. It might be true that, if LILCO had designated as a recep-tion center some out-of-the-way f acility that people could not get to it, the plan might be ruled inadequate on that basis. But that is clearly not the case here. The reception centers are near major roads; indeed, the Interveners complain that they are in heavily populated residential and commercial areas. Both the major evacuation routes to them and the access roads in their immediate vicinity are high-capacity and can service the expected demand within about 12 hours1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months . That is all that any emergency planner should have to prove.

In their forty pages of findings on the traffic issues (I.F. at 130-70), the Interve-nors for the most part simply recite their own witnesses' opinions on various reasons why tne LILCO emergency plan will not work. There have indeed been a host of nig-gling complaints raised by the Interveners' witnesses, and it is necessary to separate the forest itom the trees.

In the first place, we cannot lose sight of the fact that LILCO has performed a systematic analysis of the approaches to the reception centers using standard Highway D/ Cincinnati Gas & Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit No.

1), ALAB-727,17 NRC 760,770 (1983)(there are no specific time limits for evacuation, but it does not follow that an evacuation plan need not be concerned with the efficien-cy with which evacuation might be accomplished given existing conditions).

Capacity Manual sof tware, an analysis endorsed in almost all respects by the NRC Staff's consultant, whose authority in his field cannot be questioned. The State's attack on this analysis, on the other hand, has been spotty and in some respects half-hearted.

(For example, the State criticizes Mr. Lieberman's signal timing data but did not go to the trouble to racord the current signal settings that would be better data.) It must be concluded that LILCO has simply done a more powerful analysis.

It is not really necessary to go into the details of the various traffic analyses to resolve this issue, as it should be resolved, in LILCO's favor. The issues that turn out to ,

be worth discussing are small in number, and the following very few propositions can safely be defended as supported by the clear preponderance of the evidence and as suf-ficient to decide the case; indeed no one has seriously disputed most of them.

As to the main routes from the EPZ to the vicinities of the reception centers:

LILCO's traffic analysis assumes congestion at Level Of Ser-1.

vice F along these entire routes-servative assumption than this.Sh;here could be no more coa-

2. Evacuees from inside the EPZ will tend to hear about a ra-diological accident first and enter the major evacuation routes at or near their eastern ends; it is the people from out-side the EPZ who would have trouble entering these routes.

3. To the extent the evacuees from inside the EPZ are delayed on major routes by the entry of " shadow" evacuees from out-side, the effect will be to lengthen the arrival time of the evacuees of the reception centers, and this would tend to make the traffic situation in the vicinity of the centers bet-ter, not worse. LILCO's analysis considered both a six- and a nine-hour arrival time; the nine-hour arrival time produces a '

less demanding scenario.

0 As for the approach routes in the vicinities of the reception centers:

I s

[LO/ The State's DOT witnesses attempted to make a more conservative assumption by arguing that Level Of Service F implies a " breakdown" of the highways. so that traf-fic, apparently, would not move at all. But this is (1) a misinterpretation of what Level of Service F means and (2) belied by actual data on traffic speeds at Level Of Service F.

5_1/ Dr. Urbanik explained why it is appropriate to focus on the immediate vicinity of the reception centers. As long as the evacuees are spread out over a wide area, they (footnote continued)

n 1. The monitoring rates at the reception centers are the con-trolling factor, not the capacity of the roads or intersections. .

2. Only four intersections in ttle vicinity of the receptions cen-ters are seriously in issue.51/ But in all four cases the capaci-ty of the approaches to the intersections that service l .

evacuating traffic is considerably greater than the associated !

monitoring capacities within the reception center.

3. For two of these intersections the controversy boils down to whether there will be lef t turns from one or two lanes. But even if one assumes only one lef t-turn lane, the capacities of the approaches are still greater than the associated moni-toring rates at the reception centers, and so the ultimate con-clusion is the same.

4. The issue at these four intersections further boils down to whether or not policemen directing traffic are likely to be present. If policemen are available, then all doubt about the capacities of the intersections vanishes. Although disputed by

. the Interveners, it is clearly reasonable, and squarely in line with precedent in this case, to conclude that the police will respond to requests for assistance and show up to help the public.

In addition to these findings, it should be noted that all of the discussion has been about analyses that assume f ar more than the 20 percent planning basis specified by the Krimm Memorandum. Mr. Lieberman's analysis indicates that the highways and recep-tion centers can handle more than double that number in 12 hours1.388889e-4 days 0.00333 hours 1.984127e-5 weeks 4.566e-6 months . LILCO Ex. 26 (Lieberman rebuttal testimony), at 5. Hence, even if the Interveners were correct in many respects, it would not mean that LILCO did not meet NRC requirements. More-over, assuming that all of the worst-case f actors that the Interveners postulate materi-alize, the evidence shows that delay would not likely be a serlaus health problem. See 1

[ Section III.F.1 above. Accordingly, there is simply no sound basis for the Board to deny an operating license based on traffic issues.

I 1-

'(footnote continued) are small in number relative to the rest of the traffic. Near the reception centers the evacuating traffic converges on to three single points. Tr. 19,013-15 (Urbanik).

5.2/ See Tr.18,986-87 (Urbanik). !

l

V.A. Issue (I.F. at 130-33)

The Interveners argue with respect to traffic witnesses, as well as others, that all the witnesses "were generally familiar with, and qualified to testify about, the issues raised by the parties." I.F. at 133 n.98. While it is true that all the traffic witnesses exceeded some minimallevel that qualifies them to testify in an NRC proceeding, there

) is no question but that LILCO's and the NRC Staff's traffic witnesses were better quali-fled. The Board should be hesitant to rely on a State witness who (1) could not recog-nize a particular Level Of Service when he saw it,E (2) did not seem to understand the meaning of a V/C ratio of more than one,EI (3) did not seem knowledgeable about the meaning of " gridlock," and (4) has not used and does not appear knowledgeable about the standard HCM sof tware that both sides in this dispute relied on.

The Interveners acknowledge, if only for the sake of argument, that the moni-toring capacity of the reception centers is the controlling factor. I.F. at 132 n.211.

They therefore emphasize their claim that LILCO's estimates of the time required to monitor each vehicle are too optimistic. As noted above, this claim is incorrect. Itis based on (1) the Interveners' witnesses' estimates of how long monitoring takes based on ,

monitorir.g procedures different from the one LILCO uses and (2) Suffolk County's wit-nesses' theories about how people will be unable to cope with ordinary tasks because of the stress of an emergency.E As noted above, LILCO has actually measured the time 5_3/ See Tr.19,121 (Urbanik), Tr.18,776 (Hartgen) (striking " references to level of service"), NYS Ex. 25.

M/ See Tr.19,122 (Urbanik).

55/ In finding the issues in this proceeding the Board also refused to admit the fol-lowing Lssue:

(5) whether the puhlic would ever comply with LILCO's sug-gested relocation proposal and registration, monitoring, and decontamination procedures:

(f ootnote continued)

required to use its procedures; Interveners declined to cross-examine this testimony.N

. Also, the Interveners' speculations about how people will behave like zombies is contra-dicted by all of the experience from real emergencies in the past, including radiological emergencies.

The Board has already rejected the Interveners' theories of driver confusion and hostility. PID, 21 NRC 644, 793-96. Yet the Interveners still expect the Board to be-lieve that evacuees would drive 30 or 40 miles, listening to EBS messages all the way, then enter the reception centers and suffer some kind of mental breakdown that lef t them unable to do things like lif t their feet or lean forward. Tr. 18,023-27 (Saegert).

There is no evidence of this having happened in any emergency in history, and there have been an enormous number of evacuations.5_p The Interveners ask the Board 4

to ignore this evidence because they argue that radiological emergencies are unique.

)

Although it surely is the case that evacuations from hurricanes, fires, floods, and the )

like have been stressful, the Interveners postulate that fear of radiation is so much greater than fear of all other hazards that the inability to cope would be manifested in l

(footnote continued) l Memorandum and Order (Rulings on LILCO Motion to Reopen Record and Remand of Policy and Issue), at 18,20. The Board said that the attempt to raise this issue was a

" collateral attack" on the disposition made on earlier contentions. Id. at 20. However, the Board admitted evidence on both evacuees' postulated hostile behavior and their ;

postulated noncompliance with LILCO's route assignments. So as a practical matter it appears the excluded issue has been litigated af ter all.

56/ The Interveners argue, LF. at 137 n.103, that Mr. Lieberman "is not a health physicist and does not know whether the monitoring methods used were proper or whether they were improperly imrdemented by LlLCO monitors." They cite Tr.18,583-85 (L.ieberman). But all Mr. Lieberman was saying was that he is not a health physicist and cannot opine on whether LILCO's procedures are adeauate; he could and did testify that the LILCO procedures were used in the training session he ob-served.

s7/ See, el, Tr.1962 (Dynes) (there has been an evacuation once a week in the United States),18,319 (Keller).

J

a radiological emerge,ncy even though it has never been seen, even in attenuated form, in other types of emergencies. Tr. 17,977-78 (Johnson),17,980 (Cole).

Very well. Let us then look at radiological emergencies. ht TMI there was no evidence of increased traffic accidents. The Interveners argue that TMI is not proof because "[nlo one was studying it." "You can't have evidence if no one is doing re-search."5_B/ Tr.18,031 (Saegert); see also Tr.18,031 (Johnson). But Dr. Mileti did re-search on traffic accidents during TMI and found no evidence that they increased. Tr.

' 1800-03 (Mileti).

Look, then, at Ginna. Again, no one has found evidence of inability to cope or hostile behavior. The Interveners prefer to ignore Ginna.

I Look at Chernobyl. The information is sketchy, but what information there is does nj2t include evidence that there was panic or irrational or antisocial behavior. !

LILCO Ex.1 (Crocker ej al. direct testimony), at 29. Interveners again say that the Board should ignore Chernobyl because the information is inadequate.

Thus, having eliminated all empirical data on natural hazards, all empirical data on technological disasters, and all empirical data on radiological emergencies, the In- ,

tervenors argue that the only evidence is their theory, based on papers in the psycho-logical literature on stress and auto horn-honking. No judge can take seriously such a distorted view of what constitutes " proof."

The Interveners argue that, if it takes longer than 100 seconds to monitor each vehicle, then queues will be longer than LILCO assumes and "such queues could back up into the intersections leading to the reception centers, causing further congestion."

They cite "See Tr. 19011-12 (Urbanik)." But what Dr. Urbanik said on Tr.19,012 was 5.8/ To the extent the Interveners are arguing that an expert's opinion is of no value nnless he has been present during emergencies they destroy their own case. None of their witnesses has ever studied an emergency during the event itself. See, e.g., Tr.

17,871 (Saegert).17,372 (Cole).

that (1) the possibility of intersections being blocked was one reason Mr. Lieberman had l

l recommended police traffic control and (2) in any event the effect is "probably, in most cases, not particularly germane to the issue." Tr.19,012 (Urbanik'). The reason is that any blocking of the intersections would be more an inconvenience to non-evacuating local traffic than a health-and-safety problem for evacuees attemptin* ta reach the centers. Tr. 19,012-13 (Urbanik).

The Interveners argue, I.F. at 138-39 1 224, that "LILCO has not sufficiently an-alyzed how exiting trhffic can be accommodated." Ld. at 138. Their support for this proposition is "See Tr. 18978-80,19003-05 (Urbanik)." They argue that "This is particu-larly true ;'or traffic exiting the Hicksville reception center," citing Tr. 18,983-85 (Ur-banik). However, the NRC witness testified that KLD 192 "does a pretty good job" of providing a strategy for dispersing traffic from the Roslyn site. Tr.18,976 (Urbanik).

He also mid that "for the most part the access control includes those kinds of strategies [for dispersing traffic], though there are "a couple of details that probably need to be fine-tuned there." Tr.18,985 (Urbanik). None of his concerns were unamenable to traffic control. Ld. ,

The Interveners characterize Mr. Lieberman's reasonable assumptions about which way exiting traffic might go as " speculation," even though they do not contest his statement that a planner cannot predict the path of exiting traffic, which can take any route it chocies. I.F. at 139 n.105. In fact, Mr. Lieberman's assumptions about exiting traffic are perfectly reasonable, and no one presented any better ones.

The Interveners argue, I.F. at 139-40 1 225, that it will take longer than 100 sec-onds to monitor each vehicle because there may be " physical impediments" at the re-ception centers. This argument f alls in the f ace of evidence that (1) LILCO has actual-ly set up a reception center and timed the cars moving through and (2) there is heavy !

equipment at the reception centers sufficient to move any impediments in the two or

~

l l

more hours that'would be available before evacuees would start arriving in appreciable numbers. See Tr. 17,647-49 (Crocker). The speculation about " physical impediments" is one of the "might be" arguments that Interveners rely so heavily on; they ask the Board to assume multiple ' worst-case events and ignore the fact that there are readily avail-able ways to solve those problems even if they occur.

V.D. Route Capacities (I.F. at 142-70)

In their criticism of the KLD traffic demand assumptions (1.F. at 144-47), the In-tervenors rely heavily on their argument that the FEMA-recommended planning basis of 20 percent is too small. Their case on reception centers, like their case on the rest l of emergency planning, depends heavily on the postulated " shadow phenomenon." It should be sufficient to say that, if the " shadow phenomenon" does not prevent the issu-ance of an operating license based on its effect on evacuation time estimates from the EPZ, it should all the more not prevent an operating license based on its postulated ef-feet outside the EPZ.

~~59/

(T]he Board agrees with Suffolk County (as does LILCO) that some evacuation shadow phenomenon would likely occur in the event of a serious radiological emrgency at Shoreham. The conclusion of the County that the overre-sponse would be so great as to preclude adequate protection of public health and safety in a radiological emergency is, however, based on flawed interpretation of research evi-dence. LILCO has adequately demonstrated that a rational public will behave predominantly in accordance with public information that is disseminated at the time an emergency happens. It will not react by following some predetermined tendency that urges a shadow evacuation.

PID, 21 NRC at 670, aff'd, Lone Island Lichting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135 (1986), petition for review cranted on other trounds, Order, Docket No. 50-332-OL-3 (Sept.19,1986) (unpublished).

The' Interveners claim that "no sensitivity analyses" were done to determine the effect of additional evacuation traffic. I.F. at 145 n.111. But in fact Mr. Lieberman analyzed the traffic network assuming that 30 percent of the evacuating vehicles trav-el to reception centers, found that the network can accommodate 46.6 percent, and '

compared his results to an analysis assuming 20 percent. Since the analysis shows that 46.6 percent can be accommodated, there is a built-in " sensitivity analysis" compared to the 20 percent criterion. See Tr.19,020 (Urbanik).

The Interveners argue, I.F. at 146 1 235, that the Board should reject Mr.

Lieberman's testimony that most EPZ evacuees will enter the main evacuation routes at or near their " eastern termini." The Interveners argue that "many evacuees from the EPZ, especially those from the densely populated western sections, will leave the EPZ from on non-limited access highways and travel on them for some distance before en-tering the limited access highways." I.F. at 146 1 235. They also argue, I.F. at 146 1236, that "many non-EPZ evacuees are closer to the limited access higt) ways than EPZ evacuees and can therefore mobilize more quickly." Finally, they argue,I.F. at 147 1236, that non-EPZ evacuees will force themselves onto the highways from the access ,

ramps, apparently seeking out the congested evacuation routes as moths a flame and in-serting themselves in them.

The Interveners claim that "Mr. Lieberman appeared to back away from his ini-tial position on this issue" in his Surrebuttal Testimony, citing LILCO Ex. 51 at 5. In fact, what Mr. Lieberman says on that page is that he has never implied that traffic entering the access-controlled highways would have "little impact," as the Interveners claimed. Indeed, as he points out there, he testified in his original Direct Testimony that the effect of traffic outside the EPZ entering the evacuation routes " increases the evacuees' travel time" and contributes to the assumed Level of Service F conditions.

As we have pointed out above, this dilution of the evacuation stream witil j l

l

\

non-evacuating vehicles only relieves the intensity of congestion on the approaches to tha reception centers.

V.D.1.b. Traffic Control / Illegal Movements (I.F. at 147-53)

The Interveners address, at I.F.150-53, the question of whether police willlikely

- help control traffic during the evacuation from a radiological emergency. They say "It is questionable whether the NCPD [Nassau County Police Department] will be avall-able to guide traffic pursuant to LILCO's plan." I.F. at 150 1 244. Their basis for this proposed finding is the fact that LILCO has no letter of agreement with the police (and of course no such agreement is required by NRC regulations), and a letter from officials of Nassau County. (In footnote 114 the Interveners ask the Board to rely on portions of the letter that were not even admitted into evidence.) However, the letter in question by no means suggests that police would not try to help members of the public in a ra-diological emergency; indeed, everyone knows that the opposite would be the case. Nor is it rellaole evidence, since no witness was available for cross-examination.

The Interveners argue, incredibly, that the " realism" presumption ordered by CLI-86-13 does not apply in Nassau County:

We are not persuaded that CLI-86-13 was meant to apply to a government where the emergency at issues is far outside the l boundaries, and jurisdiction, of that government. I I.F. at 151 1245. Apparently the Interveners argue that a county government has no public trust duty or legal obligution, and would feel no comptision, to aid people who i

vote in a different jurisdiction. This incredible argument has no basis whatsoever.

Everyone knows that police traditionally direct traffic at marathon races, football games, parades, fireworks displays, and all sorts of other eventL It is astonishing that l anyone would argue that the police would not direct traffic during an evacuation from an emrrgency, no matter how f ar away the emergency is. The traffic, af ter all, would be a matter affecting Nassau County, i

Finally, the Interveners argue that, assuming the police showed up (as they would), they would not know how to direct traffic in a helpful manner. LILCO has al-ready provided for this hypothetical problem by arranging in advance to advise the Nassau Cou~n ty Police on the recommended traffic strategies.N While it is true that LILCO cannot guarantee that the police willimplement the recommendations made by Mr. Lieberman, it is highly implausible that the police would reject sound advice and harm the public by stubbornly directing traffic in a counterproductive way. Indeed, it is not cnly implausible; it is contrary to the "best-effort" presumption of CLI-86-13.

Moreover, LILCO already has a " good working relationship" with the Nassau County Po-lice. Tr.17,640 (Crocker). The Intervanors' case on police traffic control simply has no substance.

V.D.1.c. Input Data on Background Traffic (I.F. at 153-56)

The Interveners argue that it was " inappropriate" to use short-term field obser-vations in place of longer-term machine counts. L.F. at 100-01. But as LILCO's find-ings pointed out, it is impossible to get the necessary turn movements merely from ma-l chine counts. Interveners complain that the field observations resulted in lower background traffic levels at some " key intersections," but that is simply what the data showed; at some intersections the traffic levels went up and at some they went down.

V.D.1.d. Signal Timine Data (I.F. at 157-59) )

The Interveners complained that Mr. Lieberman erred by using estimates of maximum green time based on field observations rather than recorded signal settings that are some two years old and, according to the NRC expert, unreliable. Obviously 6_0/ Dr. Urbanik testified that "[t]here would have to be somebody that, you know, had this document [KLD TR-192) and could convey the essence of it to the person doing the traffic control." Tr.18,982 (Urbanik). LILCO has provided just such a person.

L.F. at 1131224.

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there is uncertainty in both old recorded signal settings and field observations. . The best evidence would have been to record the actual settings, as Mr. Lieberman asked to do; in the absence of those' data, the NRC Staff and Idr. Liebermans testimony say that the field observations are the better method. Moreover, if traffic controlis provided at the key intersections (as is likely), the difference in opinion about the maximum green times weald be rendered academic. Tr.19,007 (Urbanik).

V.D.1.e. Route Deviation'(I.F. at 159-62)

At I.F.159-62, the Interveners argue that evacuees may deviate from the routes assigned to them by LILCO. People ".might also perceive that they know a quicker route to_ their assigned reception centers," the Interveners assert. This argument, which is similar to the one the Interveners used in LILCO's evacuation time estimates earlier in this proceeding, must again be rejected. There is absolutely no reason to sup-pose that people would have a preferred route to a reception center 40 miles from their homes that they would use only once. If they did have preferences, there is absolutely no reason to think that there would be a systematic bias for any given route. Tr.

19,025-28 (Urbanik), 17,641-43 (Crocker). To the extent that they find their own routes not assigned by LILCO, that would only improve the situation. Finally, the Interveners did not provide any sensible recommendation for how an analyst is supposed to ap-proach this issue if not by assuming certain routes. Of course, any assumption micht be proved wrong in the real event, but assumptions about a future event have to be made, I l

and Mr. Lieberman's assumptions are perfectly reasonable. I Moreover, evacuees 'are likely to use the assigned routes because they were cho-sen for their simplicity. The Interveners say that this is wrong, I.F. at 1611259, but 'i l

the evidence says otherwise. See, e.E., Tr. 19,025,19,027 (Urbanik). Although Interve- j nors call several of the routes " complicated," they do not suggest what simplier ones should have been chosen.

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V.D.2. The State's Analyses (I.F. at 163-69)

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At I.F.163-69 the Interveners argue that the State DOT witnesses' analyses l

should be accepted over LILCO's. But the problems in relying on the State analyses are j l

well documented in the record. In the first place, the State witnesses for the most part (

assumed they had proved their case if they showed a V/C ratio over one, whereas in I

fact this does not prove one thing or another about how long it takes to service the i evacuees. In truth, a V/C ratio over one simply shows congested conditions, which eve-ryone concedes will occur; what is being analyzed, af ter all, is a widescale evacuation of thousands of people. In the second place, the State witnesses unrealistically assumed large amounts of " shadow" traffic. Tr.19,030 (:Urbanik).

At I.F.1661267 the Interveners argue that " future growth, even in the short term, will serve to increase traffic demand significantly." The short answer to this is that, if the Board accepts the 20 percent planning standard recommended by FEMA, even now LILCO is prepared to monitor 20 percent of the maximum EPZ population ex-pected over the entire life of the plant.W As for background traffic, the evidence was that growth in Nassau County is small. See, e&, Tr.19,022 (Urbanik). Nassau County is where the reception centers are and where the NRC Staff witness said the analysis should be focused. Tr. 19,013-15 (Urbanik).

VI. Zoning Issues (I.F. at 171-86)

By letter dated January 6,1987, the Town of Hempstead notified LILCO that its proposed use of the Bellmore facility as a decontamination and reception center vio-I lated local zoning laws. By letter dated January 16. 1987, the Town of North 6.1/ According to the NRC Staff testimony, the greatest population expected in the 10-mile EPZ is 230,646. Staff Ex. 5 (Hulman direct testimony), at 2. Twenty percent of 230,646 is 46,129, as compared to 46.6 percent of the projected 1985 population, ot 74,560. Hence LILCO already has committed the resources to monitor well over the 20-percent planning basis over the entire life of the plan!.

Hempstead notified LILCC lat its proposed use of its Roslyn facility violated North Hempstead's zoning laws. On January 28, 1987, the Town of Oyster Bay informed LILCO that its proposed use of the Hicksville facility as a decontamination and recep-tion center violated the Town's local zoning laws.

As part of its January 22, 1987, motion secking reconsideration of the Board's January 14, 1987, seneduling order, the Interveners had advised the Licensing Board that the Town Boards of Hempstead and North Hempstead had informed LILCO that use of the Bellmore and Roslyn LILCO operations centers as reception centers violated local zoning laws and requested the Board to suspend the proceeding until LILCO desig-nated alternative f acilities to serve as reception centers. In its responding February 4, 1987, Order, the Board wrote

[t]he alleged violations of local zoning ordinances that the use of the Bellmore and Roslyn facilities could create Are properly matters to be determined by a state court. Until one or more of the parties obtain such a ruling, this Board will delay making a decision on this issue untilit decides all other remaining issues before it.

ASLBP No. 86-529-02-OL, at 2 (February 4,1987).

On June 9,1987, the Town of Hempstead passed a resolution declaring LILCO's proposed use of its Bellmore f aellity as a decontamination and reception center to be in violation of Articles VII and VXI of the Town of Hempstead building zone ordinance.

Resolution No. 624-1987 (I.F. App. A). On June 23,1987, the Town of Oyster Bay passed a resolution declaring LILCO's proposed use of its Hicksville facility as a decontamina-tion and reception center to be in violation of Division 4, Sections 507 and 508, of the Town of Oyster Bay Code of Ordinances. Resolution No. 685-87 (I.F. App. B). On June 30, 1987, the Town of North Hempstead passed a resolution declaring LILCO's proposed use of its Roslyn f achlty to be in violation of Article XVI Section 70-125, of the Town i of North Hempstead Code. Resolution No. 318-1987 (I.F. App C).

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t On August 14, 1987, the Town of Hempstead filed suit against LILCO in the Su-preme Court of the 6 tate of New York, Nassau County, seeking to permanently enjoin LILCO from using the Bellmore Operations Center as a decontamination and reception center.

Now, in their proposed findings, the Interveners ask the Board to reverse its February 4,1987, Order in which it deferred consideration of the alleged violaticns of local zoning ordinances and to find instead that, on the basis of the Towns' resolutions, there is not reasonable assurance that adequate protective actions can and will be taken. For the reasons set forth below, the Board should find that the Town Boards' resolutions have no conclusive legal effect on the suitability of LILCO's proposed decontamination and reception centers and should adhere to its intention to defer to the New York State cour'ts on issues involving local zoning ordinances. Alternatively, the Licensing Board should find that under the existing circumstances the Town Boards are preempted by federal law from using zoning restrictions to prevent LILCO from providing adequate protective measures in the event of a radiological emergency at l

Shoreham. Alternatively, the Board should find that the alleged violations of local laws j have no adverse effect on the public health and safety because they would be no obsta- j cle to a response to a real emergency.

A. No Conclusive Legal Effect The Interveners assert that the Town Boards, by their respective resolutions, l "have spoken conclusively" on LILCO's alleged f ailure to comply with local land use or-dinances, I.F. at 178, and that "[t]he Town Boards' rulings are fixed as law unless LILCO obtains a zoning variance or a state court ruling that its proposed use is lawful."

Id. at 181. As discussed below, the Town Boards' resolutions lack conclusive legal ef feet for at least three reasons: first, because the resolutions f all to conform to the require-ments of a valid zoning ordinance or regulation; second, because the Town Boards are

constitutionally prohibited from enforcing their own legislative enactments; and third, because the Town Boards cannot proscribe prospective violations.

1. Not a valid Zoning Ordinance

-Interveners place substantial emphasis on Section 261 of the New York Town Law (McKinney 1987), which provides that town boards are empowered by ordinance to regulate and restrict the height, number of stories and size of buildings and other struc-tures, . . . and the location and use of buildings, structures and land for trade, industry, residence or other purposes.

Likewise, Interveners rely upon that part of Section 264 that states that town boards are required to provide for the manner in which such regulations and the boundaries of such districts shall be determined, established and en-forced, and from time to time amended, supplemented or changed.

But Interveners make no reference to the immediately succeeding sentence of Section 264, which provides as icilows:

However, no such regulation, restriction or boundary shall be-come effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least ten days' notice of the time and place of such hearing shall be published in a paper of general circulation in such town . .

Neither Interveners' findings nor the Town Boards' resolutions assert that the Town Boards fulfilled the notice and hearing requirements of Section 264 when they adopted the resolutions. LILCO did not have an opportunity to present evidence on the substantial factual and legal questions that exist. Thus, the Town Boards' resolutions do not have the force and effect of regulations, restrictions, or boundaries. At best the resolutions exist as formalized expressions of the Boards' opinions.

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2. Not a Valid Enforcement Action The Town Boards' resolutions also f ail to have any conclusive legal effect as valid enforcement actions. Zoning is a legislative power, residing in the State, thr.t is dele-gated to town boards. Green Point Sav. Bank v. Board of Zoning Appeals of Town of Hempstead, 281 N.Y. 534, 24 N.E.2d 319, (1939) appeal dismissed 309 U.S. 633 (1940).

The doctrine of separation of powers prevents town boards from also retaining judicial authority to determine the validhy of their own legislative pronouncements. Zoning ordinances can be enforced by inf,q$$m or by criminal prosecution. N.Y. Town Law j S-268. See, eg, Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeal of Town of North Hempstead, 69 N.Y.2d 406, 508 N.E.2d 130, 515 N.Y.S.2d 418, 421 (1987). Inter-1 venors provide no authority for the proposition that a Town Board resolution, especially ons failing the notice and hearing req'uirements of Section 264, should be accepted as a j conclusive adjudication of LILCO's property interests. The Licensing Board should not accede to Interveners' request to grant the Town Boards' resolutions the same force and effect as valid and binding enforcement orders.

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3. No Authority to Prohibit Prospective Zaning Violations j The Interveners' claim that the Town Boards' resolutions represent a " definitive !

interpretation of the zoning laws," LF. at 178, is further eroded by the Town Boards' in-l ability to prohibit prospective zoning violations. In Lake Mohopac Heights, Inc. v.

Zoning Board of Appeals of Town of Carmel,119 N.Y.S. 2d 809 (1952), the Town's Zon-I l ing Inspector issued a " cease sind desist order" against Lake Mohopac Heights, the owner of a parcel of land located along Lake Mohopac. Mohopac Heights had filed a map in tha county clerk's office subdividing the parcel and indicating a desire to sell the divid-ed parcels for development. The cease and desist order cited violation of an ordinance which prohibited purchasers of noncontiguous parcels to use boathouse, wharf, and l

dock facilities on the lake. While recognizing that "[t]here is no doubt that the

property was mapped for development purposes and that . . . Mohopac Heights plans to sell the lots mapped and other loM," Jg. at 811-;2, the court held that Mohopac Heights had not yet sold any lots and therefore that the Appea' Board had no powdr to render a cease and desist order. The court held that the provisions of S 268 of the Town Law were not . . , intended to authorize a zoning inspector er a zoning board of appeals to make and serve his or its own writ-ten order restraining a mere threatened violation.

I_d. at 813. The court continued:

l It is clear thai neither the Board of Appeals nor the )

Zoning Inspector have general injunctive powers. if there is i merely a threatened violation of a zoning ordinance, the rem- l edy is to apoly to the courts and there the rights of the par- l ties may be adequately adjudicated and protected. l l

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-Id.

1 The prospective nature of LILCO's alleged zoning ordinance violations are clear- )

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ly reflected in the Town Boards' resolutions themselves. The resolutions of the Town of l l

Hempstead and the Town of Oyster Bay both complain that "LILCO's proposed usage of !

the property as a reception center, as aforesaid, would constitute a violation" (emphasis I

added) of the respective zoning ordinances. The resolutien of the Town Board of the l l

Town of North Hempstead provides that LILCO's " pro ~ posed use would violate" local zoning laws (emphasis added). As the Town Boards are thus barred from prohibiting )

such prospective acts, the Board's resolutions can have no conclusive legal effect.

B. Abstention Even if LILCO's proposed use of its facilities is determined to be within the scope of the Town Boards' zoning authority, it judicial occision on the applicability of the ordinance to LILCO's proposed action is still required. The Licensing Board should defer to the New York courts to resolve tids issue of detailed and uniquely local law.

The United States Supreme Court has held that in certain circumstances federal judicial tribunals should abstain from considering cases otherwise properly before them.

For one, federal courts should avoid constitutional issues when a state court decision will render the deposition of such issues unnecessary. Texas V,. Pullman, 312 U.S. 496 (1941). Federal courts should also abstain from the adjudication of detailed and uniquely local controversies. Burford v. Sun Oil Co., 319 U.S. 315 (1943).

Interveners ask the Board to rely on the resolutions of the Town Boards to find i that LILCO's proposed decontamination and reception center plans violate local land use laws. However, as noted above, a suit by the Town of Hempstead against LILCO is currently pending in a New York State court, It is by no means certain that the Town's arguments will prevail in court. Indeed, a findag by a State court that LILCO is not in violation of local land use laws would remove the obligation on this Board to consider whether the exercise of local zoning authority is preempted by federal authority for the i regulation of nuclear r,ower (see below). Furthermore, the State courts are better suited to adjudicate rights under the complex and uniquely local zoalng laws. For these reasons, the Licensing Board should abstain f rom considering Interveners' request to ad-judicate before the Board LILCO's alleged violation of local zoning laws.

That does not inean, however, that the Board should delay its decision or deny an operating license until such time as the State courts have spoken. The burden in this j case is on the Interveners. If at some time h the future the State courts declare LILCO's reception centers illegal, then the tuervenors may still be able to have their claims heard by the NRC. See 10 C.F.R. S 2.206 (1987); 10 C.F.R. S 2.734 (1987). But on the present state of the record there is no adequate basis for delaying an unqualified decision on the suitability of the reception centers. '

C. Due Process While it may be true that the Towns' resolutions reflect the official acts of the respective Towns, it does not follow that "[i]t is appropriate . . . for the Board to rely upon these resolutions," as Interveners claim. I.F. at 172 n.135. This issue was not i

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involved in the claim that the reception centers violate zoning ordinances. Nor has l l

LILCO had a hearing at the State or local level; our understanding is that the resolu- )

l tions were adopted without notice or opportunity to be heard. For the Board to at-trmpt to enforce any of the resolutions as binding on LILCO Without a hearing would deprive LILCO of constitutionally mandated procedural due process protection.

D. Preemption In addition, the Towns are preempted by federal law from exercising tbelt zoning authority over LILCO in the manner evidenced by the towns' resolutions. The Interve-nors argue, I.F. at 182-84, that the alleged violation of local zoning laws is not pre-empted by the Atomic Energy Act. The Interveners point out that traditionally it has been held that the Atomic Energy Act does not preempt garden-variety laws such as those governing land use or zoning. Pacific Gas and Electric Company v. State Energy Resources and Development Commission, 461 U.S.190, 211-12 (1983); 45 Fed. Reg.

55,404 (1980). That is a correct proposition of the law in the ordinary case. But this is not an ordinary case.

Where a zoning law is used, as it clearly is being used in this case, as a tactic to prevent a nuclear power plant from receiving a federal license, then its application is preempted6E as an attempt to regulate radiological health and safety. This is particu-larly the case where, as here, the Interveners rely not so much on the original zoning laws (which concededly were enacted with no intent to regulate nuclear power) but on 62/ See Consolidated Edison Co. of New York, Inc. (Indian Point Station, Unit No. 2),

ALAB-390, 5 NRC 1156,1169 (1977). This decision, which was rendered before PG&E, Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), and ALAB-818 in this case, said by way of dictum that if a zoning board uses its power in stich a way as substantially to ob- ,

struct or to delay the license conditions imposed on the utility by the NRC pursuant to NEPA, then its " regulation" would be preempted by federal law. 5 NRC at 1169.

I rscently enacted resolutions that quite clearly are intended to prevent the operation of j a nuclear plant. And it is pa' ticularly the case where State law prevents a municipality from barring a utility facility necessary for providing service to the pubhc and allows it )

1 only to impose reasonable conditions. Niagara Mohawk Power Corp. v. City of Fulton,8 ]

A.D.2d 523, 527 (1959); Consolidated Edison Co. of New York v. Hoffman, 43 N.Y.2d 598, 374 N.E.2d 105, 403 N.Y.S.2d 193, 200 (1978).

E. Realism Whether or not some aspect of an emergency plan violates a State or 16callaw, it remains true that people will try to help other people in an emergency. No one

-claims that State or local officials would prevent the public from coming to monitoring c::nters in a real emergency.

The Interveners do argue, unfairly and incorrectly, that LILCO's realism argu-m:nt asserts that LILCO will violate the law.1.F.185 n.146. To the contrary, LILCO's position is that it will obey the law, even if that means it must wait until the time of an cmergency and then get permission from local or State officials to help people in trouble.N As LILCO testified, in an emergency LILCO would seek approval of offi-cials "before decontaminating anyone." L.F. at 1191 239.

Thus, if politicians on Long Island succeed in having portions of LILCO's emer-gency plan declared illegal, and if the NRC finds that such a declaration is not pre-empted, then LILCO will simply call up the authorities and offer its resources l

(including trained monitors and space for them to operate) when an emergency re-sponse actually becomes necessary. The " realism" principle of CLI-86-13 ensures that 6_3/ This would not necessarily require tsaching local officials in an emergency, if State or County officials could be reached first. New York State law provides that both the Governor and County Executives can override certain laws in an emergency. N.Y.

Exec. Law, Art. 2-B, SS 24.1.f. 29-a (McKinney 1982).

officials would take whatever measures were necessary to eliminate purely legal obsta-cles to helping people;b the two or more hours available, at a minimum, before large numbers of people arrived would ensure that there would be time to make these legal arrangements.

Certification to Commission The preemption question raised by the Interveners' findings is closely related to tha preemption issue in the " legal authority" issues now before the Commission. See ALAB-818; CLI-86-13,24 NRC 22,24 (1986). Because there are substantial questions of law and policy involved, and because they are related to an issue now before the Com-mission, LILCO asks the Board to certify the preemption issue to the Commission pur-suant to 10 CFR S 2.718(1) (1987), if the other arguments above do not resolve the mat-ter in LILCO's favor.

Conclusion For the reasons stated above and set out mora fully in LILCO's proposed findings of September 2,1987, LILCO asks the Board to reject the Interveners' proposed findings as unsupported by the weight of the evidence on the record taken as a whole and as unsupported in law, and to render an opinion substantially as set out in LILCO's pro-posed findings.

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!4/ LILCO received this morning the Board's Memorandum and Order of September 17,1987, denying LILCO's motion for summary disposition of the legal authority issues. !

It appears to LILCO from a quick reading that the Memorandum and Order does not weaken the " realism" argument made in this Reply.

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Respectfully submitted,

/'A Ma ers Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: September 21,1987 1

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I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licersiru Board In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3 '

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

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ATTACHMENTS TO LILCO'S REPLY TO INTERVENERS' - .

PROPOSED FINDINGS ON RECEPTION CENTERS Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 I

September 21,1987 l

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ATTACHMENTS TO LILCO'S REPLY TO INTERVENERS' PROPOSED FINDINGS ON RECEPTION _ CENTERS Attachment 1 -

LILCO's Brief on Contention EX 19, August 3,1987 Attachment 2 -

Suffolk County, State of New York, and Town of Southampton Proposed Findings of Fact and Conclusions of Law on the February 13,1986 Shoreham Exercise, August 17, 1987,Section I, Contention EX 19 - FEMA Findings on the Exercise, pp.18-29 Attachment 3 -

NRC Staff Brief on Contention 19, September 11,1987

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i Attachment 1 l

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

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) )

LILCO'S BRIEF ON CONTENTION EX 19 Donald P. Irwin Lee B. Zeugin Kathy E. B. McCleskey l Counsel for Long Island

. Lighting Company Hunton & Williams 707 East Main Street '

PcO. Box 1535 Richmond, Virginia 23212 August 3,1987

LILCO, Atigust 3,1987f UNITED STATES OF AMERICA t

NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board p.

l . In the Matter of ) ,

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

) (EP Exercise) j

'(Shoreham Nuclear Power Station, ) {

Unit 1) )

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LILCO'S BRIEF ON CONTENTION EX 19 ;

Introduction Interveners' Contention EX 19 asserts that " FEMA's inability to reach a reason-able assurance' finding in LILCO's favor regarding [the Shoreham Offsite Radiological Emergency Response] Plan"in the February 13,1986 exercise " demonstrated" a funda-mental flaw in that Plan.1 The contention notes that two FEMA officials had indi-cated that the agency would not be able to reach an ultimate, or bottom-line finding on the Exercise (one of them, apparently, on the basis that the Plan's actual imple-mentation would require state and local government participation, which had been lacking in the Exercise). From this the contention infers that the Exercise findings were "so limited" as to preclude FEMA from making a reasonable assurance finding on the Exercise, and that the NRC is therefore prevented from reaching a finding of rea-sonable assurance on the general issue of emergency planning for Shoreham under its own regulations.

1/ The text of Contention 19 is Attachment 6 hereto.

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_2 Contention EX 19 depends, in essence, on one basic fact: that state and local governments did not participate in the February 13, 1986 offsite emergency prepared- l 1

ness Exercise for Long Island Lighting Company's Shoreham Nuclear Power Station.

Because of this fact, the Federal Emergency Management Agency (FEMA) abstained from reaching any overall, or " bottom-line," finding regarding the that Exercise. From FEMA's abstention on this point (which had been agreed upon by NRC and FEMA prior j l

to the Exercise), Interveners argue that the NRC cannot, itself, reach those conclusions j

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relative to emergency preparedness at the Shoreham plant which are necessary to au- l thorize LILCO to operate Shoreham at above 5% of rated power. The contention is in-correct, as is demonstrated below. ;

I The iagic of Contention EX 19 is not uniquely clear. Three principal possibilities l present themselves. First, the contention may be construed to assert that the absence of state and local participation in an exercise, by itself and without more, is legally dis- I positive of the adequacy of the exercise. Second, the contention can be interpreted to ,

mean that FEMA's abstention from drawing an affirmative ultimate finding about the Shoreham Exercise is the equivalent of a negative finding, and that the NRC is legally precluded from reaching a contrary (i.e., positive) conclusion about either the Exercise l I

or emergency preparedness generally. Third, the contention may be interpreted to as- I sert that the overall limitations on the scope of the Exercise resulting from the absence of state and local participation permit, on the facts, only a record too thin to furnish a basis for reaching the kind of ultimate judgment on the exercise necessary to sustain a ,

licensing conclusion.

No matter how construed, Contention EX 19 is wrong. Given either the first in-terpretation or the second, it is wrong as a matter of law since advance commitments of state and local participation are not a legal prerequisite to emergency planning for nuclear plants, and since FEMA's findings (whatever their degree of finality) on offsite l

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cmergency planning inform but do not govern the NRC's decision-making process. Put another way,if either the first or second interpretation of the contention is correct the NRC could never conclude that an exercise conducted without state or local participa- i tion contributes adequately to a linding of overall reasonable assurance on offsite cmergency preparedness,Eand the Exercise would have been definitionally an exercise in futility. This clearly cannot have been intended by the Commission. If, under the third interpretation, the contention merely recapitulates the factual assertions of in-5 sufficient demonstrations of readiness inherent in all other contentions, it is merely cu-mulative of them. For these reasons, as shown more fully below, the contention should be rejected.

Statement of Facts 5

The process of planning the February 13,1986 Exercise for the Shoreham Nucle-cr Power Station began on June 4,1985 with a memorandum from Samuel J. Chilk, See-retary to the Nuclear Regulatory Commission, to William J. Dircks, Executive Director for Operations (Attachment i hereto). In that memorandum, Mr. Chilk conveyed the instructions of the Commission that Mr. Dircks undertake discussions with FEMA to schedule "as fun an exercise of the LILCO plan as is feasible and lawful at the present time." While recognizing that New York State court decisions might constrain the Ex-ercise so that it "may not satisfy all of the requirements of NRC's regulations," the Commission expressed no opinion on the likalthood that the Exercise would prove either 2/ The contention seems to suggest that a finding of " reasonable assurance" based on the Exercise, separate and distinct from the overall finding of " reasonable assur-ance" based on a review of emergency plans, is required. This is not correct: the Com-mission makes only one " reasonable assurance" finding on the adequacy of emergency response preparedness, and in that process the exercise serves merely as a cross-check, or additional dimension of inquiry, to ensure that fundamental flaws do not lurk beneath the surf ace of otherwise apparently acceptable emergency plans.

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l adequate or inadequate in that regard, and felt that it would yield " meaningful results" cven if all normal requirements were not satisfied. The memorandum reads in perti-nent part as follows:

The Commission does not disagree with the view that an ex-ercise of the LILCO plan could yield meaningful results, even th6 ugh such an exercise may not satisiy all of the require-ments of NRC's regulations. It could, as h minimum, identify the impact of the limitations of LILCO's plan when executed under the state and county restrictions. Although the Com-mission is aware that because of the recent court decision a full exercise of the LILCO emergency plan may not be possi-ble, the staff should request that FEMA schedule as full an exercise of the LILCO plan as is feasible and lawful at the present time.

The NRC Staff transmitted the Commission's request to FEMA by letter from Edward L. Jordan to Richard W. Krimm dated June 20, 1985 and the same day notified the Commission of that fact by memo from Mr. Dircks (collectively, Attachment 2 hereto). The Staff's request repeated the terms of the Commission's June 4 memoran-dum, stating that

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it sees no reason why the licensee (i.e., LILCO) should not be allowed to exercise those parts of the plan which may be le- l l

gally exercised. Further, the Commission indicated that it i does not disagree with the view that an exercise of the LILCO I plan could yield meaningful results, even though such an exer- l cise may not satisfy all of the requirements of NRC's regula- l tions. The exercise could, as a minimum, identify the impact i of the limitations of LILCO's plan when executed under the state and county restrictions, i

The Staff also suggested that in the exercise FEMA emphasize evaluation of emergency preparedness within the plume exposure (10 mile) EPZ.

FEMA responded to the NRC on October 29, 1985 by letter from Samuel W.

Speck to William J. Dirck3 (Attachment 3 hereto). Noting that the unwillingness of state and local governments to participate in the Exercise would place "special parameters" on it and make it " dramatically differer.t than is typical at other sites in New York," FEMA felt that it would not be able to draw an ultimate finding of I

i r:asonable assurance on its basis. Nevertheless, FEMA clearly acknowledged that the j ultimate determination of the value of the exercise for licensing purposes was a matter within the province of the NRC, not FEMA, and that the NRC might find the exercise sufficient to furnish a basis for making predictive licensing findings:

Any exercise without participation by State and local govern- )

ments would not allow us sufficient demonstration to reach a j finding of reasonable assurance. This conclusion is based on j the current legal decision with respect to utility authority to j perform civil emergency functions. However, that does not j preclude the conduct of an ehreise that would provide an in- 4 dication to the Nuclear Regulatory Commission (NRC) as to utility onsite and offsite emergency capabilities. We believe such a report would have value in decisions to continue the 11- j eensing process or possibly provide a basis on which the NRC could make predictive findings. Obviously, the value of such j an exercise in the licensing process is a determination which l can only be made by the NRC. i FEMA also suggested two potential scopes of exercise. Under " Option 1," the ex-crcise would have a narrow scope that would " set aside all functions and exercise objec- l tives related to state and local participation, limiting it solely to LILCO functions."

FEMA believed that the usefulness of such an exercise would "seem very limited."

FEMA also noted that such an option would not permit addressing questions such as those raised by the NRC Appeal Board about ten days earlier in the portion of ALAB-818 dealing with the realism argument.W 3/ On October 18, 1985 the Appeal Board had issued ALAB-818,22 NRC 651, which reviewed and affirmed the Atomic Safety and Licensing Board's determinations on legal cuthority issues. On pages 35-39 of the slipsheet version of that decision, 22 NRC at 673-76, the Appeal Board rejected the realism argument, largely on the basis that the l Appeal Board believed that advance demonstration was required of the capacity to co-crtiinate a utility plan with the moment-of-truth good faith efforts of government offi-clais. The ability of an exercise to demonstrate this type of response was the subject of FEMA's observation about Option 2. The Commission subsequently reversed the Appeal Board'srejection of the realism argument in CLI-86-13,24 NRC 22 (1986).

Under Option 2, by contrast, the exercise "would include all functions and nor-mal exercise objectives." Federal exercise controllers would simulate the roles of state and local personnel in the event they were not willing to participate. Thus this option, in addition to testing the overall technical proficiency of LERO, would " test the utill-ty's ability to respond to ad hoc participation on the part of state and local govern-ments."

The letter continued:

The ultimate purpose of an exercise is to support a finding by FEMA for use by the NRC in their licensing process. As we mentioned above, neither of these options would allow a find-ing by FEMA on offsite preparedness. However, we recognize that Shoreham is in no way typical and that in the past in ex-ercising its adjudicatory powers the Commission and the vari-ous Atomic Safety and Licensing Boards have reached predic-tive findings.

Mr.' Speck forwarded a copy of his October 29 letter the same day to Congress-man Markey, then the chairman of a subcommittee with jurisdiction of nuclear matters i

(Attachment 4). In that letter, after describing the gist of his letter to Mr. Dircks, Mr. Speck states unequivocally:

We { FEMA) feel strongly that the ultimate value of such an I i

exercise [as that being planned for Shoreham] must be deter-mined by the [ Nuclear Regulatory] Commission.

Arrangements for the basic parameters of the exercise were completed by Mr. Dircks' November 12 reply to Mr. Speck (Attachment 5), requesting that FEMA conduct an " Option 2" - i.e., broad - exercise "includ[ing) all functions and normal exercise objectives, recognizing that some offsite response roles may be simulated. We believe that such an exercise would be useful in the licensing process for Shoreham."

in short, the pre-exercise agreement between the NRC and FEMA involved the j

following elements:

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_ _ _ _ _ _ _ _ )

1. New York State and Suffolk County were expected not to participate.

2. That fact would sufficiently influence the actual conduct of the Exercise as l to prevent FEMA from being able to reach any ultimate conclusion about the state of readiness indicated by the Exercise. It would not prevent FEMA from being able to

. cvaluate the specific aspects of the Exercise actually performed.

3. The Exercise was to be as broad as possible within applicable legal con-straints, including all normal exercise objectives and functions. It would also include the use of federal personnel simulating the performance of state and local government officials, to test LERO's ability to react to the ad hoc participation of these govern-ments in the event of a real emergency.

4. The absence of an ultimate finding by FEMA was not intended to determine the usefulness of the Exercise for licensing purposes. FEMA went out of its way to note that the NRC, as the final authority on licensing decisions, has the final word on whether the Exercise might serve as an adequate basis for the predictive findings re-quired in licensing on emergency planning issues, and ventured no opinion of its own on that issue. For its part, the NRC did not take a position in advance on whether the Ex-crcise would prove fully adequate for licensing purposes. Neither agency ruled out the possibility of its being fully adequate under NRC regulations; neither agency could com-mit in advance of the exercise that it would prove to be adequate.

ARGUMENT I. The Absence of Participation by State ard Local Governments In Offsite Emergency Preparedness Exercises Is Not Legally Determinative Of Their Acceptability For NRC Licensinst Purposes One possible basis for Contention EX 19 is the premise that state and local gov-crnmental participation is a prerequisite legally for the suitability of an exercise for 11-l censing purposes. This proposition finds no support in statute, regulation, decisional inw or the history of this case.

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The advance participation of state and local governments in offsite radiological emergency planning and preparedness for nuclear power plants may be highly desirable, and in some cases may be a practical necessity, but is not legally compelled as a condi-tion for obtaining or maintaining a license either by statute or Commission regulation.

The bedrock statute in the field, the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 e_t sea., nowhere treats the concepts of emergency planning and pre-paredness; rather, it imposes on the Commission the general obligation to assure the '

protection of the general public against undue radiological hazards associated with op-cration of commercial nuclear power plants. The Commission, pursuant to that statu-tory responsibility, has imposed offsite preparedness requirements in its regulations, most particularly 10 CFR S 50.47 and Appendix E to Part 50, as the last in a series of strategies and requirements designed to provide defense in depth.

A series of limited-term NRC Authorization Acts beginning in 1980 (for fiscal years 1980,1982-83, and 1984-85) required the Commission to condition reactor licens- l l

ing and operation on protection of the general public against radiological accidents I with offsite consequences. However, each of these limited-duration statutes permits I i '

the Commission to find adequate offsite preparedness not only on the basis of state and local emergency plans, but also on the basis of state, local or utility-sponsored emer- )

gency plans where no FEMA-approved state or local plan exists.

The Commission's regulations governing offsite emergency preparedness,10 CFR S 50.47 and Part 50 Appendix E, similarly do not condition the acceptability of offsite l

emergency planning and preparedness on the participation of state and local govern-ments. Those regulations speak in terms of offsite emergency plans prepared and spon-l sored by state and local government plans. However, ever since 1983, when in this case 1 4/ Pub. L.96-295, S 109, 94 Stat. 780, 784 (1980); Pub. L.97-415, S 5, 96 Stat. 2067, 2069 (1982); Pub. L.98-553, S 108,98 Stat. 2825,2827 (1984).

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Suffolk County tried to use the fact of its withdrawal from participation in offsite emergency planning for the Shoreham plant as a basis for summary termination of the offsite emergency planning proc edings which were then beginning, the Commission <

has recognized that state or local sponsorship is not required under its regulations; that in the absence of governments willingness to engage in offsite planning, a utility plan is entitled to consideration on the merits; and that if a utility plan provides adequate protection of the public health and safety, it is entitled to be the basis for operation at ;

full power. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

CLI-83-13,17 NRC 741 (1983).E Accord, Citizens for an Orderly Energy Policy v.

t County of Suffolk, 604 F. Supp.1084,1094-95,1096 (E.D.N.Y.1985),5 aff'd 813 F.2d 570 (2d Cir.1987). i l

1 5/ The Commission noted the existence of potential issues of federal preemption I surrounding the use of a utility-only plan, and the fact that the burden of proof of satis-fying regulatory standard would be on the utility applicant, but expressed no opinion on the likelihood of success given the absence of an evidentiary record.17 NRC at 743.

j/ The COEP Court stated:

A local government may not establish itself as a second nu-clear regulatory authority with safety requirements over and l l

abcVe those of the NRC.

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Certainly the County may not require LILCO to comply with the County's. requirements for a satisfactory RERP [Ra-diological Emergency Response Plan]; whether LILCO's RERP is sufficient is a question for the NRC, and the Coun-ty may not override the NRC's judgment. . . . The County I

has not and cannot supersede the judgment of the NRC on whether or not a license should issue for Shoreham. Once the NRC makes that decision the County's opinion on '

LILCO's RERP will become academic.

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. . . Congress considered the possibility that a state or local governmant or both would fail to participate in emergency j planning. Rather than require participation, Congress pro-vided that the utility could provide a plan.

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Since that time the Commission has instituted, with recurrent oversight, what are by now four years of proceedings in this docket, including one related to an exer-cise, to examine an offsite emergency plan premised on the absence of state and local willingness to participate. It seems highly unlikely that the Commission would have permitted this massive and prolonged effort to be undertaken, much less to continue, if it had felt that the participation of state and local governments in offsite exercises, any more than in any other aspect of offsite planning, was a legal prerequisite to its own reasonable assurance finding on emergency preparedness, f

The Commission's authority to determine what is required for licensing purposes in the area of offsite emergency preparedness was affirmed explicitly in the context of 1

the February 13 exercise, again by the U.S. District Court for the Eastern District of l

j New York. There the Court, in ruling that Suffolk County's Local Law 86-2 had uncon- j stitutionally intruded into the federally preempted area of radiological health and safe- {

l ty regulation when it attempted to make criminal significant aspects of the then- l impending exercise, stated:

It is manifestly clear from an examination of the legislative history . . . that Congress by no means intended to allow local governments to frustrate or impede the NRC's ability to eval-uate a utility's RERP, either passively, through non-acquies-cence, or actively, through a prohibition such as Local Law i 2-86.

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Emergency planning for radiological hazards in the event of a l nuclear power plant accident, as the legislative history dem- '

onstrates, is well within the sphere of authority reserved for the federal government by Congress. Federal law encourages but does not require the states and localities to participate in emergency planning. Congress requires that the NRC,in con-junction with FEMA, will scrutinize any emergency evacua-tion plan rigorously, regardless of whether it is submitted by state or by the utility. . . . The test is not an abstract exer-cise meant to evaluate LILCO's efficiency or reliability as a public utility. It is geared to determine whether LILCO can respond adequately in the event of a major radiological disas-ter at the Shoreham facliity. Therefore, the Court concludes that off-site testing of a utility's RERP is within the sphere of activities preempted ty federal law.

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Long Island Lighting Co. v. County of Suf folk. 654 F. Supp. 628, 664-65 (E.D.N.Y.1986).

Tiws state and local participation in emergency planning is not required by stat-ute, Commission regulation or decisional law. Indeed, the courts have consistently upheld the Commission's interpretation of its obligation, which is that in the absence of l state and local offsite plans utdity plans are permissible and must be substantively eval-uated. Since an exercise is nothing more than an aspect of the overall evaluation of emergency preparedness, it follows that state and local government participation can-

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not be required as a matter of law for an exercise to be sufficient for licensing purpos-es.N i

II. The Nature or Absence of FEMA Exercise Findings is not Legally Determinative of the Acceptability of Emergency Preparedness Issues for NRC Licensing Purprm A second possible interpretation of Contention EX 19 is that an affirmative bottom-line finding by FEMA concerning the state of emergency response preparedness demonstrated by an exercise is necessary in order to permit the NRC to reach its own findings regarding the overall state of emergency preparedness sufficient for licensing purposes. Evidence for this proposition is found in the Contention's notation, twice, that FEMA did not render a bottom-line finding on the exercise.

In the first instance, Interveners characterize the absence of a bottom-line J/ If Interveners' argument goes to the slightly different point that since a good l raith response by state and local governments in the event of an actual emergency is ,

assumed by the realism doctrine enunciated by the Commission in CLI-86-13, 22 NRC 24 (1986), an exercise must evaluate that good faith response, the result is no different. ,

The exercise provided, through the use of federal personnel simulating the actions of '

state and local officials, a means of testing LERO's ability to adapt to the unplanned re-sponse of those officials. This aspect of the exercise was reported on in the FEMA Post-Exercise Assessment (favorably, see id. at 7-8, 31-32, 33-34). Thus to the degree that a demonstration of LERO's ability to accommodate the ad hoc, best-efforts partic-ipation of state and local officials in the event of an actual emergency is needed under the malism doctrine, it has been provided already.

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FEMA finding on the Exercise as "an inability to make a reasonable assurance fh;$ng in LILCO's favor regarding the implementability of the LILCO Plan"; in the second, they assert that "[t]he exercisa results were so limited that FEMA was unable to make the I

reauired reasonable assurance finding." (Emphasis supplied). In each instance the sense I of the sentence is that a finding by FEMA, of a type not made by it, Is required in order i for the NRC to be able to reach a decision to authorize a full power license.

While Interveners do not specify what it is they are referring to in their refer-cnces to allegedly required FEMA " finings,"SI they presumably are referring to an ulti-mate, or " bottom-line" finding as to the acceptability or implementability of the Shoreham offsite plan under FEMA's regulations, 44 CFR Part 350, as the Exercise bears on that question.EI Interveners could not plausibly be using the term " finding" to refer to narrower, fact-specific findings on technical issues; for FEMA has repeatedly mtde " findings" on hundreds of such issues, in the context both of the Exercise and of g/ Both FEMA and NRC regulations and related documents refer to " findings and determinations, and to " assessments," " findings," and " determinations" without defining or clearly distinguishing among them. See e.g.,10 CFR S 50.47(a)(2): "...NRC will base its finding on a review of the Federal Emergency Management Agency (FEMA) findings and determinations.... A FEMA finding will primarily be based...." (NRC regulations).

See also e.g.,44 CFR S 350.3(e): FEMA has entered into a Memorandum of Understand-ing with the NRC [ pursuant) to which it will furnish assessments, findings and determinations.... These findings and determinations will be used by the NRC under its own rules ... and FEMA will support its findings in the NRC licensing process...."

(FEMA regulations). See also, e.g., 50 Fed. Reg. 15485,15486 col.1 (April 19,1985):

" FEMA ... makes findings and determinations as to the adequacy nnd capability of im-plementing offsite plans.... The NRC reviews those FEMA findings and determinations in conjunction with the NRC onsite findings.... These overall findings and determina-tions are used by the NRC to make radiological health and safety decisions in the issu-ence of licenses . . . . (NRC-FEM A Memorandum of Understanding).

p/ Interveners are presumably referring to the evaluation process for which FEMA sets the following criteria at 44 CFR S 350.3(b) of its regulations:

In order for State o[r] local plans and preparedness to be ap-proved, such plans and preparedness must be determined to ade-quately protect the public health and safety by providing reason-able assurance that appropriate protective measures can be taken offsite in the event of a radiological emergency.

i the Shoreham Plan generally, via the Post-Exercise Assessment and the 7 AC reviews of R: visions 0 through 8 of the Shoreham Plan.E!

The absence of an ultimate or " bottom-line" linding from FEMA does not pre-clude NRC from being able to reach licensing judgments sufficient to authorize ful; power operation if the facts otherwise justify it, and the contention is incorrect, for ]

the following reasons, to the extent it asserts otherwise. !

1 First, FEMA's regulations themselves remove FEMA from any " pivot" position in the NRC's decision-making process. The entire regulatory package pursuant to which FEMA normally evaluates offsite emergency planning, 44 CFR Part 350, is focused on and limited to evaluation of state and local emergency plans. FEMA's regulations i l

state, at 44 CFR S 350.4:

l The regulation in this part does not apply to, nor will FEMA apply l any criteria with respect to, any evaluation, assessment, or deter-l mination regarding the NRC licensee's emergency plans, nor shall )

FEMA make any similar determination with respect to the integra-i tion of offsite and NRC licensee emergency preparedness except as these assessments and determinations affect the emergency pre-paredness of State and local governments. The regulation in this part applies only to state and local planning and preparedness with respect to emergencies at commercial nuclear power f acilities....

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Thus, FEMA's own regulations appear to preclude it from issuing " findings and g/ FEMA states in its regulations,44 CFR S 350.3(e), as follows:

FEMA has entered into a Memorandum of Understanding (MOU) with the NRC [ pursuant] to which it will furnish assessments, findings and determinations, as to whether State and local emer-gency plans and preparedness are adequate and continue to be ca- i pable of implementation (e.g., adequacy and maintenance of proce- )

dures, training, resources, staffing levels and qualification and i equipment adequacy). These findings and determinations will be l used by NRC under its own rules in connection with its licensing ;

and regulatory requirements and FEMA will support its findings in j the NRC licensing process and related court proceedings. '

If " findings and determinations" are understood in the sense described in S 350.3(e),

FEMA has indeed made the findings and determinations contemplated by FEMA regula-tions, and the contention is simply wrong on the merits.

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determinations" in any conventional sense in the case of any nuclear plant except where state and local governments sponsor offsite emergency preparedness.E However, FEMA's regulations also recognize that the absence of state and local emergency plans - and hence the absence of conventional findings from FEMA -is not intended to preclude the NRC from issuing full power operating licenses. Discussing the effect of the NRC Authorization Acts, the regulation states as follows:

l Section 5 (of the 1982-83 Act] provides for the issu-ance of an operating license for a commercial nuclear power plant by the NRC if it is determined that there exists a state, local or utility plan which provides as-surance that public health and safety is not ondangered by the operation of the facility. This section would allow the NRC to issue an operating license for such plants without FEM A-approved state and local governmental plans.

44 CFR S 350.3(c)(1)(Emphasis supplied).

The concept that the NRC can issue operating licenses notwithstanding the ab-sence of state and local offsite emergency plans, assuming the facts justify it, has been straightforward Comirission law at least since its 1983 decision in CLI-83-13, se_e page 9 above. However, FEMA's direct recognition et this proposition in its own regulations, coupled with the applic7bility of those regulations only to evaluation of state and local plans [sbeds significant light on FEMA's understanding of the effect of the absence of state and local participation. Put simply, it is this: FEMA's formal process is geared to evaluation and approval of state and local plans, While evaluations may be made of the facts of offsite emergency preparedness for 5pecific sites (sae 44 CFR S 350.3(f)), such evaluations do not result in the full bottom-line findings given to state and local plans.

l y/ That does not, of course, prevent FEMA from doing technical evaluations of I offsite plans, or from conducting and evaluating exercises, at the NRC's request under l the Memorandum of Understanding, for plants not having state and local cooperation; indeed, this is the device which has been used for Shoreham. What is clear, however, is that the entire orientation of FEMA's radiological emergency preparedness program is geamd toward state and local governments.

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l Nevertheless, the limitations on the extent of FEMA's process where state and local participation does not exist cannot, and are not intended by FEMA to, preclude the NRC from issuing operating licenses where the f acts warrant it.

The Commission's regulations compel the same conclusion, and Interveners' argu-ment to the contrary is incorrect. Interveners cite in the contention to 10 CFR S 50.47(a)(2), asserting that it stands for the proposition that the Commission "have and review FEMA ' findings and determinations as to whether State and local emergency plans are adequate and whether there is reasonable assurance that they can be implemented...."' as a prerequisite to licensing (emphasis in quoted material). Interve-

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nors argue that the absence of FEMA findings thus reveals a " fundamental flaw" in the i i

Shoreham plan which precludes licensing. j

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Interveners' review and use of 5 50.47(a)(2) is incomplete. The regulation, in full, !

reads as follows:

(2) The Commission will base its finding [as to the existence of reasonable assurance on emergency preparedness] on a review of the Federal Emergency Management Agency (FEMA) findings and determinations as to whether State and local emergency plans are adequate and whether the applicant's onsite emergency plans are adequate and whether there is retsonable assurance tatt they can be implemented._ A FEMA finding will be based primarily on a review of the plans. Any other information available to FEMA may l be corsidered in assessing whether there is reasonable assurance l that the plans can be implemented. In any NRC licensing proceed- )

ing, a FEMA finding will constitute a rebuttable presumption on questions of adequacy and implementation capability.

This full passage indicates three important matters on its face. First, the NRC is not bound by findings (positive or negative, present or absent) issued by FEMA. They are mbuttable presumptions, not dispositive statements.El Thus the nature or existence p/ FEMA findings are given the deference of rebuttable presumptions unless dis-

! puted. If a party disputes a finding the rebuttable presumption dissolves and the finding l 1s given the weight accord to the expertise of the wuness and the bases for his opinion.

f Camlina Power and Light Co. and North Carolina Eastern Municipal Power Agency

! I5hearon Ilarris Nuclear Power Plant) LBP-86-11, 23 NRC 294, 365 (1986); see also, Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479 (1986).

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l of FEMA findings, contrary to Interveners' apparent assertion, is not determinative.E '

Second, the NRC is not limited to the material in those FEMA findings: any other material available to FEMA may also be considered. As a result, the full record contained in and underlying FEMA's RAC Reports and Post-Exercise Assessment, even if arbitrarily excluded from the ambit of " findings" (as could happen if such findings are held to relate only to the evaluction of state and local plans), is part of the record on the Commision's own determination.

Third, FEMA findings (at least for NRC licensing purposes) are based primarily on plan reviews; thus any suggestion in the contention that the Exercise gives rise to an entirely de novo round of FEMA findings is not correct.E i Thus neither NRC nor FEMA regulations contemplate that the presence, absence or nature of FEMA findings will be determinative of the outcome of NRC proceedmgs.

NRC gives FEMA findings the force of rebuttable presumptions; and to the extent that the myriad of technical findings made by FEMA in the course of its plan and exercise review are considered to be " findings," the Commission should give them that presump-tion. To the extent that the term " findings"is considered to relate only to the " bottom-line" finding, which FEMA's regulatoq construct enables it to render in the context of state and local plans only, the NRC is not bound by the absence of such a finding.

p/ Note that the regulation refers first to FEMA " findings and determinations," and then to FEMA "findmgs" alone, without differentiating between them or ascribing any distinct function for FEMA " determinations."

j M/ A fourth matter is brought out concerning the highlighted language in the pas-sage, which was added by amendment in 1982. The Statement of Consideration accom-l panying its issuance indicates that that language was added in order to emphasize that j cmegency planning findings made prior to licensing are predictive in nature and need not reflect the actual state of preparedness at the time the finding is made. 47 Fed.

Reg. 30232 cols.1-2 (July 13,1982). See also 50 Fed. Reg.19323 col. 2 (May 8,1985).

This is consistent with the Commission's approval of emergency plans despite the ab-sence of any final FEMA review. See Pacific Gas and Electric Co. (Diablo Canyon Nu-clear Power Plant, Units 1 and 2), ALAB-776,19 NRC 1373,1379 (1984); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 1 and 2),

ALAB-717,17 NRC 356, 380 (1983). l

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Certainly neither the NRC nor FEMA felt that the significance of the Exercise was determined from the outset by the anticipated absence of an ultimate FEMA find-ing. As the correspondence setfing up the Exercise, outlined in detail in the Statement of Facts, reveals, FEMA indicated to the NRC from the outset that the absence of state and local governmental participation would preclude it from being able to render any bottom-line findings. The NilC accepted that fact, as is also clear. It is equally clear that neither NRC nor FEMA thought that that fact determined the value of the Exer-cise for licensing purposes. FEMA's letter of October 29,1985 (Attachment 3) indicated its belief thatt the Exercise might provide a basis for the NRC to reach predictive li-censing findings on emergency preparedness, and recognized explicitly that the NRC was ultimately responsible for the pertinent licensing judgments. For its part the NRC, in its letters of June 20 and November 12 (Attachments 2 and 5), refused to circum-l scribe the potential utility of the Exercise for licensing purposes. The subsequent l course of conduct, which is simply consistent with the regulatory construct outlined above, suggests the obvious: that neither NRC nor FEMA thought that the absence of state and local governmental participation was anything more than a factual circum-l stance to be taken into account; certainly it was not legally determinative of the use- )

fulness of the Exercise for licensing purposes. Thus in suggesting that it was de-terminative, the contention is incorrect.

III. The Absence of State and Local Governmental Participation in the Exercise Does Not Determine the Adequacy of the Exercise's Factual Record for Licensing Purposes The third and final possibility as to the intent of Contention EX 19 is that the l

absence of state and local participation in the Exercise makes its record (and, presuma- i i

bly that of any exercise in which state and local governments did not participate) def!- l nitionally inadequate for licensing purposes. The first basis for this possible

interpretation is the contention's. quotation of a February 15, 1986 remark of Frank Petrone, then FEMA regional administrator, that "Since [the Shoreham]' plan cannot be implemented without state and local governmental participation, we [ FEMA) can-not give reasonable assurance under NUREG-0654 . . . ." The second is the contention's later assertion that "the exercise results were so limited that FEMA was unable to make the required (sic] reasonable assurance finding."

Just what it is about governmental participation which wakes it essential to the record of the Exercise is not indicated by the coritention. However, the contention's argument is apparently to the effect that since in a real emergency New York State and Suffolk County would be expected to supplement LERO's response with their own and would thereby cure any legal authority or other qttestions otherwise attaching to LERO's implementation of the Shoreham Plan, then such " participation" is essential to the Plan's " implementation," and any exercise which did not include New York State and Suffolk County in f act is definitionally inadequate.

This argument can take three slightly differing directions, differing only in nu-ance. None of them invalidates the Exercise for licensing purpoces.

The first possibility is that the argument means that New York State and Suffolk 4

County, b~y refusing to participate, can definitionally invalidate an exercise. If that is what is intended, then the argument is virtually identical to the argument shown to be incorrect in the first Argument above, since it would make these entitles' participation in an exercise essential when their participation in the basic plan itself is not, and would thus make it possible for states and localities, merely by not cooperating and doing nothing more, automatically to frustrate satisfaction of offsite emergency pl&n-ning requirements. This is contrary to the principles of fedcral supremacy in areas of radiological health and safety outlined above.

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I 2 Alternatively, the argument cou'd be that an exercise of a plan which relies on l the realism doctrine presumes some degree of state and local involvement in actual re- j l

sponse and therefore requires some degree Gf dry run of that doctrine. This form of the !

argument is either a' tin to the argument immediately above or raises the question whether as much was done as p>ossible to simulate the expected effect of state and county participation in an actuhl emergency response. If the former, then the argu-ment is invalid for the reasons already 1,utlined.

If the latter, the argument raises the issue of whether the exercisc's simulation of state and county response was adequate. There was a record made on !be nature and effects of simulation in the Exercise; that was reported on in the FEMA Post-Exercise assessment and summarized in the Statement of Facts above in this brief. Further f ac-tual consideration of that argument, which formed a substantial part of the core of In-tervenors' proposed contentions 8-14 (all of which dealt with alleged inadequacies in the Exercise attributable to the nature of simulation ants other indicia of governmental involvement) is foreclosed at this point. This Board rejected those contentixs on the l basis of the Commisdon's acceptance of the realism argument, Prehearing Conference Order (11uling on Contentions and Establishing Discovery Schedule), October 3,1986, at 10-11. Contention 13 cannot be construed in a way which would readinit those conten-tions by the Dack door.

The final possible permutation on the notion that ar) exercise without state and local participation is inadequate is a pure f actual argument: that not enough aspects of the Shoreham offsite plan were tested, or tested in sufficient depth, to make the Exer-cise e valid basis for licensing (presumably, with state and county participation the Ex-ercise's scope could have included all of these items). Such a contention, unlike the othein, woulo not be definitionally improper. However, it has already been submitted in Contentions EX 15 and 16, which contend that various elements of the Shoreham Plan

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ware not tested in the Exercise and that.their absence reveals a " fundamental flaw" in

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! that Plan.

l The allegations in these contentions have already been litigated at length in this proceed lng and are the subject of separate findings of fact before this Board. The ele-mant of governmental participation - the sole focus of Contention 19 - adds nothing distinct to these contentions. The Exercise either constituted a sufficient examination

< of the Shoreham plan it) operation, and of LERO's capabilities, or it did not, and the ab-1 sence of a FEMA finding predicated on the state and local nonparticipation does not change the issues. Viewed in this light, which is the only one in which the contention would raise valid issues, those issues collapse into ones already admitted and litigated. ]

- Thus the contention, even so understood, must be rejected for redundancy.

CONCLUSION l

For the reasons stated above, Contention EX 19 should be denied.

Respectfully submitted,

, , x Don"ald P. Irwin Lee B. Zeugin Kathy E. B. McCleskey Counsel for Long Island Lighting Company i I4 Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 2S212 DATED: August 3,1987

,1_5/ Cloi;ely allied is Contention EX 21, wnich alleges that the extent and depth to which various elements of the Shoreham plan were examined in the Exercise was insuf-ficient to support a licensing finding.

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a Attachment 1 l

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Attachment 1

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/pae%'%, UNITEo STATES CfS: Dir"'s N

NUCLEAR REGULATORY COMMitilON Roe f .a' " Rehm

',. . ! wAsa;wctow. o.c. -oses f Stello f

\ , *'"**,. # June 4, 1985 GCunningham f Denton opres on twa Murley ,

ssenstAny ,

Jordan COMTR-85-57.

MEMORANDUM FOR: William J. Dircks, Executivo Director i for Operations ,

FROMt Samuel J. Chilk, Secret, /

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SUBJECT:

SCHEDt? LING OF EMERGENCY FD S EXERCISE FOR SHOREEAM In view of LILCO's standing request to schedule an exercise of its emergency plan, the Commission, with Chairman Palladino and Commissioner Asselstine disagreeing, sees no reason why the licensee should not be allowed to exercise those parts of the plan which it may legally exercise.

The Commission does not disagree with the view that ati exer-cise of the LILCO plan could yield meaningful results, even though such an exercise may ncit satisfy all of the require-ments of NRC's regulations. It could, as a minimum, identify the impact of the limitations af LILCO's plan when executed under the state and county res trictions. Although the Com- ,

mission is aware that because of the recent court decision a I full exercise of the LILCO en.ergency plan may not be possible, the staff should request that FEMA schedule as full an exa:- )'

cise of the LILCO plan as is feasible and lawful at the pre-sent time. If FEMA indicates an exercise is not currently j possible, the staff should ask FEMA to provide a detailed +

report of its reasons for declining, addressing the following:

1. Status of the outstanding technical and operational deficiencies with the LILCO plan,

2. Estimates of wnen eacn rammining deficiency will be corrected.

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NOTEa Since this SRM was approved, the County Executive of l Suffolk County has issued an Executive Order indicating that

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the County will cooperate in emergency planning Activities for l Shoreham. The Staff, in requesting that FEMA schedule an j emergency plan exercise, should also suggert that FEMA give l appropriate consideration to the County's apparent change of I position regarding participation in emergency planning activities.

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ENCt.0SURE 1 T. t , , , 6, fT* , , " * * ~ " "

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3. Specific plan implementation activities LILCO could not exercise given the state court's decision.

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4. Benefits and disadvantages to holding an exercise, given the response to Itum 3, until legal concerns have been l fully resolved or adequate compensating measures taken.

5. Views on whether (and if so how) the deficiencies can be adequately remedied without the involvement and coop-l aration of state and local entities. j commissioner Asselstine's views for inclusion in any letter to FEMA will be provided to you within several days.

cc: Chairman Palladino Commissioner Roberts Commissioner Asselstine Commissioner Bernthal Commissioner Zech OGC OPE ASLBP ASLAP OI GIA OPA OCA Shoreham Service List I

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Constissioner Asselstine does not believe that the Comission should request I that FDu schedule an emagency planning exercise of the LILCO plas at this !

time. Absent state or local government participation, there are serious questions about LILCO's authcrity to isolement significant portions of its Further, there is an ongoing dispute within .

asergency plan for Shoreham.

Suffolk County concerning the county's position on emergency planning at 1

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Shartham and its willingness ts participate in testing and implementing an <

emergency plan. Under these circumstar.ces, Commissioner Asselstine {

beileves thet scheduling an exercise of the LILCD plan at this time would f I

1 or.ly confuse matters further. He therefore recomends that FD8A wait to plan and schedule an exercise fer Shorehen at least until there is some resolution of Suffolk County's position on this issue. l

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l ENCLOSUPE 2 1

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Attachment 2 }

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>, UNITEL STATES

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l' ' ,t., NUCLEAR REGULATORY COMMISSION Attachment 2

{e, f j yea.spetNGTCN. D. C. 20804

JijN29 25 O JUN 211985 O:'. " E Tic

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MEMORANDUM FOR: Samuel J. Chilk Secretary of the Comission 85 JUN 20 P 4 :49 FROM: William J. Dircks Executive Director for Operations :rr .: .- .

G r'i :.L.. ii:

SUBJECT:

SCHEDULING OF EMERGENCY PLAN EXERCISE **

FOR SHOREHAM g ft'TMUMBBt b.~

N t 'mt. ne.. . . N This responds to your June 4,1985 memorandum (COMTR-85-5A) recommending that the staff request that FEMA schedule as full an exercisd of the Shoreham eme.rgency plan as is feasible and lawful at the present time. A copy of the staff's memorandum to FEMA is enclosed.

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William JNDircks '

Executive Director for Operations ,

Enclosure:

Memo to FEMA cc: Chairman Palladino Commissioner Roberts ,

Commissioner Asselstine Commissioner Bernthal Commissioner Zech OGC

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OPE

Contact:

F. Kantor, IE 492-9749

UNITED sTATss

/ NUCLEAR REGULATORY COMMISSION

/ ww.ie.oro . o. c. seems f

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MEMORANDUM FOR:

Richard W. Krian Assistant Associate Director Office of Natural and Technological Hazards Frograms Federal Emergency Management Agency Edward L. Jordan, Director FROM:

Division of Emergency Preparedness

' and Engineering Response Office of Inspection and Enforcement SU8 JECT:

SCHEDULING OF EMERGENCY PLAN EXERCISE FOR SHOREHAM In response to LILCO's standing requer,t to schedule an exercise of its emergency plan for Shoreham, the Commission, in a memorandum to the Executive Director for Operations dated June 4,1985 (Enclosure 1), stated that it sees no reason why the licensee (i.e., LILCO) should notFurther, be allowed to exercise those parts of the plan the Comeission indicated that it does tchich may be legally exercised.n2t disagree with the view that an exercise of the L ful results, even though such an exercise may not satisfy all of the requirements The exercise could, as a minimim, identify the impact of of NRC's regulations.the limitations of LILC0's plan when executed under the state and coun tions.

Accordingly, we request that FEMA schedule as full an exercise of the LILC0 Local Emergency Response Organization (LERO) plan as is feasible at the present time giving appropriate consideration to the Suffolk County Exe activities by the County. In determining those portions of the LERO plan that might be appropriate for inclusion in an exercise at this time, we suggest that FEMA emphasize evaluation of the functional arsas of emergency preparedness related to the demonstration of response capabilities within the plume exposure (10 mile) Emergency Planning Zone.

Contact:

F. Kantor, IE 492-9749

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Richard W. Krim ible, we I

the event FEMA detennines that an exercise is not currently identified poss '

In!

request that FEM provide a response which Commissioner addresses the five issues in the memorandum from the Secretary of the Comission. 1 Asselstine's views on this matter are provided as Enclosure 2.

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r ard L. Jord , Ofrector k Division of Emergency Preparedness and Engineering Response Office of Inspection and Enforcement l

Enclosure:

1. Memorandum from the l Secretary of the Comission dtd. 06/04/85

2. Commissioner Asselstine's Views l

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Attachment 3 h k Federal Emergency Management Agency

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$ Washington, D.C. 20472 October 29, 1985 Mr. William J. Dircks Executive Director for operations U.S. Nuclear Regulatory Carrission Washington, D.C. 20555 i

Dear Mr. Dircks:

This is in response to a manerardsa dated June 20, 1985, frca Edward L. Jordan to Ri&ard W. Krinen in which FDS was rgquested to pro-coed with the condact d 'as full an exercise......as is feasible to test offsite preparedness capabilities at the Shoreham Nuclear Power Plant."

In ref October 8,1985 letter,Wii& transmitted the twiw of revision 5 of the LIllD local Eneppency Response Organization (120) plan, I indicated we were analyzing the results of the plan zwiew in the context of the Septancer 17, 1985 letter from Chairman Palladino to Congressman Markey, and the variais legal proceedings related to Shoreham in order to respond to the June 20 manerandum within several weeks. Our analysis includes consideration of the Atmic Safety and Licensing Appeal Board decision of October 18, 1965.

De deficiencies identified in tn/ letter cf October 8 do not preclude the conduct of an exercise of the LEno plan. Hoiever, the reluctance of ecunty and State officials to participate in such an esercise and the related legal authority issues would place special paransters on the condact of a LEIC exercise.

We have no indication at this time that of faite jurisdictions are willing to directly participate in an exercise in the short tem. '1hus, any exercise will be drastically different than is typical at other sites in the State of New York. Any ensreise without participation by State and local spverments would not allcar us sufficient demonstration to roam a finding of reasonable assurance. This ennelusion is based on the current legal decision with roepect to utility mithority to perform civil energency functions. However, that does not precitdo the conduct of an exercise that would provide an indication to the th: lear Regulatory Commission (NHC) as to utility onsite and offsite erergency capabilities. We believe such a report would have value in decisions te contirue tim licensing procoas or possibly provide a basis on whicts the NRC could nake predictive findings. Cbviously, the value of such an exercise in the licensing process is a determination whi e can only be made by the NRC.

Given the nature d your June 20 request and consideration of a practical structure for an exercise, w feel that, while there are a ntecer cf variations possible, the basic aptions for exercising in the near term are limited to two:

Option 1 - This cption would require that w set aside ell functions and exercise ob>ctives related to issues of matharity and State and local participation. Thus, only the functions outlined for LIIco would be smarcised. Such

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an exercise ik pessible but its usefulness muld seem very !

limited. An exercise of this type w:uld not address questions such as these raised on papes 35 through 39 of the October 18 decision W the Atmic Safety and Licenairg Appesi Roard and would be redundant to actions already taken by NRC.

option 2 - This gtion would include all firsctions and noaul exercise objectives. This cption would exercise Revision 5 1 of the LEHO Plan. Exercise controllers wuld simulate the roles of key state or local officials mable or unwilling !

to participate. It would be desirabia that State and local l government personnel actually play. However, such a sinu-lation mediania wuld at least test the utility's ability ,

j to respoM to ad hoc participation on the part of State and i local goverraments. ,

The ultimate purpose cf an exercise is to support a finding by FEMA for l I i use by the WRC in their licensing process. As we mentioned above, neither of these cptions would alicar a finding by FEMA on offsite preparedness. >

However, we recognize that Shorehan is in no way typical ard that in the j past in esercising its adjudicatory powers the Commission and the various j l Atomic Safety and Licensing Boards have readed predictive findings.

i Pursuant to your June 20 request, w are initiating the process necessary to conduct an exercise of either Stion. We are prepared to conduct such an esercise in .w Ately 75 days. Itmover, filMA requires further clarification from NBC as to the scope of the exercise to be conducted.

FEMA will proosed with the initiating steps until November 15, at whidt time we will need a definitive exercise scope from NRC in order to avoid prohibitive ocats. If at that thse we have roosived no direction fra l the Nuclear Regulatory fmminaian we will suspend activities mtil a decision is made. Given other demands, we do feel that any delay beyond the current window would require an exercise postrmement of at least 90 :

j days beyond the mid4arwary time frame.

sincerely,

% aJ W */V j arruel W. Speci l' Associate Dire:ter state and tocal Programs and Support l

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1 Attachment 4 1

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Attachment 4 z Federal Emergency Management Agency Washington, D.C. 20472 October 29, 1985 Honorable Edward J. Markef Chairman, S A w s'ttee on Energy, Conset.vation and Poer Committee on Energy and Censorce House of Representatives Washington, D.C. 20515

Dear Mr. Markey:

I have enciesed a ecoy of correspondents sent to the Nuclear Regulatory .

Consnission today. Ycu will note from this letter that we are advising the j commission further as to the @tions that seen possible for an exercise !

at the Shorehas Nuclear Power Staticn. Me feel strongly that the ultiinate value of such an exercise nust be detoonined by the conmission.

l 1 believe that this letter further clarifies our position on the exercise l and respedit to uns of the questions e have received fran your staff. 3 we also wish to acknowledge the additional questions portaining to our l corressendence d October 8,1985, tich were referred to us by prene from your staff. Please be advised that a response will be forthcoming this wed . If after your perusal d this letter you have further questions, )

we will be happy to respond.

Sincerely,

% u. y knuel W. Scock Associate Director State and tocal Frtgrans and Support Encicoure l

Attachment 5 l

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Attachment 5

![ganoeq#g UNITED $7ATIS NUCLEAR RESULATORY COMMissloff 3

W40MeeseTON, D. L 39558

% . ,, . NOV 12 fM5 Mr. Samuel W. Speck Associate Director state and Loca1 Prograns and Support Federal Emergency Management Agency Washington, D.C. 20472 -

Dear Mr. Speck:

This responds to your letter of October 29, 1945, proposing two options for an exercise to test onstta and offsite emergency preparedness capabilities at Shoreham. We conclude that an exercise should be conducted consistent with the approach outlined in your Option 2.

You asked in the 1etter for further clarification from the NRC as to the scope of the exercise to be conducted. As stated in our mesorendum to you of June 20, 1985, we requested that you schedule as full an exercise of the LILCO t.ocal teergency Response Organization plan as is feasible. Option 2 would include all functions and normal exarcise objectives, recognizing that some offsite response roles may be simulated. We believe that such an exercise would be useful in the licensing process for Shoreham. Please let me know if 'we can be of further assistance.

Sincerely, l

b 111am J. Dircks '

I ecutive Director Por Operations i

1 Attachment 6 1

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Attachment 6 l

Contention EX 19. [ Admitted for legal argument]. The exercise demonstrated a fundamental flaw in the LILCO Plan resulting from FEMA's inability to make a rea-sonable assurance finding in LILCO's favor regarding the implementabihty of the LILCO Plan. FEMA stated in advance of the exercise that it would not be able to make a fa-vorable reasonable assurance finding based on the exercise results. See, e.g., Letter from Samuel W. Speck, FEMA, to William J. Dircks, NRC, October 29, 1985. After the exercise, FEMA reiterated this point. See, g, FEMA Report at ix. In fact, however, FEMA's former Region II Director, Frank Petrone, stated on February 15,1986, that a "no reasonable assurance" finding was necessary: "Since this Plan cannot be imple-mented without state and local government participation, we [ FEMA] cannot give rea-l sonable assurance under NUREG 0654 that the public health and safety can be pro-tected."

The NRC's regulations require as a prerequisite to licensing, that the NRC have and review FEMA " findings and determinations as to whether State and local emergen-cy plans are adequate and whether there is reasonable assurance that they can be implemented . . . ." 10 CFR S 50.47(a)(2) (emphasis added). The exercise results were so limited that FEMA was unable to make the required reasonable assurance finding.

Accordingly, the exercise confirmed a fundamental flaw in LILCO's Plan, b, that the Plan, as exercised, cannot provide a basis for a FEMA reasonable assurance finding.

Thus, the exercise precludes the NRC from finding reasonable assurance that adequate protective measures can and will be taken in the event of a Shoreham accident, as re-quired by 10 CFR S 50.47(a)(1).

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i PART TWO: THE CONTENTIONS SCOPE CONTENTIONS I. CONTENTION EX.19 - FEMA FINDINGS _ON THE EXERCISE

26. Contention Ex 19 alleges that the Exercise provides no ,

basis for the NRC to make a favorable reasonable assurance finding, because FEMA was unable, and failed, to make a reasonable assurance finding as to whether the LILCO Plan can be adequately implemented. We admitted Contention Ex 19 for legal argument "as to the extent to which FEMA's inability to make a favorable finding reveals a fundamental flaw in the plan,"22/

although we stated at the close of the hearing that the parties should cite to any testimony they believe to be relevant. Egg Tr. 8935 (Frye).

27. When initially admitted, Contention Ex 19 appeared to present only a legal issue, since the facts did not appear to be in dispute. The Governments relied upon FEMA statements to the !

effect that it could not make a reasonable assurance finding because the Ex6teise w&s too limited withour, State and local I government participation. First, in an October 29, 1985, letter to the NRC, Samuel Speck, FEMA's Associate Director for State and Local Programs, stated: '

21/ Prehearing Conference Order, Oct. 3, 1986, at 13.

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Any exercise without participation by State and local governments would not allow us sufficient demonstration to reach a finding of reasonable assurance. This conclusion is based on the current legal decision with respect to utility authority to perform civil emergency functions.

LILCO Br., Att. 3. In its April 17, 1986 FEMA Report, FEMA i geiterated its statement that it could not make a reasonable assurance finding. FEMA Ex. 1, at ix, 2.

28. On the basis of the foregoing undisputed facts, Contention Ex 19 reasoned roughly as follows. The NRC has final authority to make or not to make the 10 CFR S 50.47(a)(1) reasonable assurance finding. According to Section 50.t,7(a)(2),

with respect to offsite planning and preparedness the NRC will base its reasonable assurance finding "on a review of the (FEMA) findings and determinations as to whether State and local emergency plans are adequate and whether there is reasonable assurance that they can be implemented . . . . FEMA findings on plan adequacy are normally made in the course of a FEMA plan review; FEMA findings on plan implementability are made on the basis of exercise results. The Governments urged that since FEMA was unable to make findings favorable to LILCO on the implementability of its Plan based upon the Exercise, and since 19 -

that FEMA determination had not been rebutted, the NRC must accept the FEMA determination and rule that the Exercise results preclude a reasonable assurance finding. ,

29. We now have had the benefit of the parties' presentations on all the admitted Exercise contentions. The compilation of the record has had the effect of focusing two issues for decision in connection with Contention Ex 19. The first issue is whether FEMA's inability to make any kind of express, bottom line, implementability finding bars the NRC from making a reasonable assurance finding favorable to LILCO. We address that issue in Section A below. The second issue is more factual. The record indicates that despite failing to make an l express, bottom line, positive or negative reasonable assurance finding, FEMA nonetheless made findings which indicate that had it made an express bottom line finding, that finding would have been negative. We address that issue in Section B below.21/

2E/ In its Brief, LILCO suggested that Contention Ex 19 might be construed to allege that the absence of State and local government participation in the Exercise per se prevents a favorable reasonable assurance finding. LILCO Ex 19 Br. at 7-11, 17-20. The Governments did not so allege and thus that issue is not presented for decision. Those portions of LILCO's Contention Ex 19 Brief are irrelevant.

Similarly, LILCO based one section of its Ex 19 Brief on a presumption that the Governments based their Contention Ex 19 position on FEMA's regulations in 44 CFR, Part 350. Egg LILCO Ex 19 Br. at 12-14. Contention Ex 19 makes no reference to Part 350 at all; rather, it refers only to findings by NRC and FEMA under the NRC's regulations in 10 CFR SS 50.47(a)(1) and (2).

Thus, that section of LILCO's Ex 19 Brief is also inapposite to the matters at issue in Contention Ex 19.

A. FEMA's Unrebutted Finding That the Exercise Was Too Limited to Permit a Positive Reasonable Assurance Findino

30. As noted above, the NRC's regulations require that it bane any positive or negative Section 50.47(a)(1) reasonable l assurance finding on a review of the FEMA reasonable assurance l

) findings. 10 CFR S 50.47(a)('2). The regulations provide further, that "a FEMA finding will constitute a rebuttable presumption on questions of adequacy and implementation capability." Id,

31. It is undisputed that FEMA found, both before and after the Shoreham Exercise, that it could not make a favorable 1

reasonable assurance finding on implementation capability with respect to the LILCO Plan, because the Exercise was too limited.

FEMA Ex. 1, at ix, 2, 3.21/ That FEMA determination has not been rebutted. Neither LILCO nor the NRC Staff proffered a contention to attempt to rebut FEMA's determination that a positive reasonable assurance finding could not be made.2S/ The 21/ Before the Exercise took place, the NRC was made aware of FEMA's view that the scope of the Exercise would be too limited to permit a FEMA reasonable assurance finding, but.the NRC asked FEMA to proceed anyway. Tr. 8356-57 (Keller, Kowieski). After FEMA had conducted and evaluated the Exercise, FEMA reiterated its determination that the Exercise was too limited to permit a favorable reusonable assurance finding.

10/ The Governments urged at the July 8, 1986, Prehearing Conference that LILCO had the burden of going forward with contentions. Egg Tr. 16,112-17, 16,169-70. The Governments then (footnote continued)

Governments urged that under 10 CIR S 50.47(a)(2), absent l rebuttal, the NRC must accept this FEHA determination, and find that the Exercise did not provide a sufficient demonstration of emergency preparedness capability and thus was too limited to permit a reasonable assurance finding favorable to LILCO.

32. We agree with the Governments. By the terms of its regulations, the NRC must base its own positive or negative reasonable assurance finding on a review of FEMA's finding on that subject. 10 CFR S 50.47(a)(2). The NRC stated its commitment to do so in the preamble to the regulation when it was l adopted in 1980. Egg 45 F_ed. Rec. 55,402, col. 2, 55,403 col. 2 l (1980). FEMA's finding for Shoreham was not rebutted by any l

(footnote continued from previous page) stated on August 25:

This FEMA finding (i.e., that the Exercise I

scope was too limited to permit a positive reasonable assurance finding) is rebuttable pursuant to 10 CFR S 50.47(a)(2) by proof pertaining to the merits of an admitted contention. However, LILCO and the Staff have forfeited their opportunity to submit a contention which attempts to rebut the presumption of the validity of the FEMA finding that the exercise did not provide a sufficient demonstration of emergency preparedness to reach a reasonable assurance finding.

Response of Suffolk County, State of New York, and the Town of Southampton to the LILCO and NRC Staff Objections to the Emergency Planning Contentions Relating to the February 13 Exercise, August 25, 1986, at 134, n.54.

party. Under these circumstances, we must accept the FEMA finding that the Exercise was too limited to permit a positive j reasonable assurance finding.

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33. We find support for this determination not only in the words of our regulations, but also in Eng. The Court analyzed l

the relationship between findings by FEMA and by the NRC which is mandated by 10 CFR S 50.47(a)(2), and described it as follows:

Pursuant to the [NRC's emergency planning]

rule, FEMA is to make findings and determinations on whether offsite " emergency plans are adequate and whether there is reasonable assurance that they can be implemented." 10 CFR S 50.47(a)(2) (1983).

The Commission in turn will base its findinos on the state of emergency preparedness an FEMA's findinos, which constitute a rebuttable presumption as to the adequacy and implementation capability of the emergency plans.

735 F.2d at 1440 (emphasis added). The Court's description of an interdependent building-block approach is logical. The first step in the decisionmaking process is vested in FEMA. Then, the NRC, "in t_qI.n," must " base" its finding on FEMA's finding, unless that finding is rebutted.

34. LILCO suggested that we should disregard the lack of a FEMA reasonable assurance finding for Shoreham because in agreeing to conduct the Exercise FEMA emphasized that it would be

up to the NRC, not FEMA, to determine the value of the Shoreham exercise results. LILCO Ex. 19 Br. at 6, 17. We reject this argument.

35. There is no dispute that it is up to the NRC to make a final licensing decision -- and the final reasonable assurance finding (positive or negative) -- for a given license application. But, in doing so, the NRC, like any other agency,

'is obligated to follow its regulations. Thus, it is the regulations, rather than FEMA's opinion concerning them, which define the limit and extent of the NRC's authority. The NRC's regulations require it to review FEMA findings on offsite preparedness and to accent those findings if they are unrebutted.

That is precisely the situation presented here. We are faced with an unrebutted FEMA finding that the Exercise does not permit a positive reasonable assurance finding. FEMA's determination that it is unable to make a positive finding, coupled with LILCO's failure to rebut that determination, precludes the NRC from making a positive finding "on review" of FEMA's finding.

36. Accordingly, we conclude that the NRC must accept as valid FEMA's finding, set forth at pages ix and 2 of the FEMA Report. "la turn," the NRC must make a finding, based on FEMA's unrebutted finding, that the Exercise did not provide a sufficient demonstration of emergency preparedness to permit a

positive reasonable assurance finding. As we discuss below, the i

only finding possible in view of the Exercise results is a negative one.

B. FEMA Made a Negative Reasonable Assurance Findino

37. FEMA's determination that it could make no favorable implementability finding was premised on the lack of New York State and Suffolk County participation in the Exercise. In our October 3, 1986 Order, however, we ruled that for purposes of this proceeding, we would, in essence, disregard the lack of governmental participation and focus only on how LILCO performed during the Exercise.31/ As we note in our discussion of Contentions Ex 15/16, this approach also is generally consistent with FEMA's approach in structuring the Exercise. Egg Section II below; Tr. 8371-72 (Kowieski). Consistent with that ruling then, we deem it appropriate to asssss what reasonable assurance finding FEMA made or would have made based on the Exercise results, if the lack of governmental participation were ignored.

21/ Egg Prehearing Conference Order, Oct. 3, 1986, at 9-11 (rejecting the Governments' Contentions Ex l-14 relating to LILCO's lack of legal authority to implement the Plan and the lack of State and Suffolk County participation in the Exercise).

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38. It is clear that viewing FEMA's Exercise evaluation in -

such a context, focusing on LILCO's performance and setting aside the lack of governmental participation, FEMA made negative reasonable assurance findings which LILCO has nct rebutted.12/

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Thus, we find that the Exercise results require the conclusion that there is no reasonable assurance chat LILCO can adequately -

implement the LILCO Plan. We explain our bases below, beginning with a brief explanation of FEMA's exercise evaluation 4

methodology.21/ g, s .t i , "/

39. According to FEMA's normal process, as part of its -

evaluation of an exercise, FEMA reaches one of three conclusions. .

l These conclusions are 5et forth in the FEMA /NRC Memorandum of

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Understanding ("MOU"):

Exercise evaluations will identify one of the '

following conditions: (1) There is reasonable '

assurance that the plans are adequate and can 22/ As noted, LILCO offered no contentions to rebut anything in "

the FEMA Report. Rather, LILCO only offered testimony to contest the Governments' contentions which relied in part upon FEMA's :! '

conclusions but also asserted other bases to support allegations ;;

that the Exercise results preclude a reasonable assurance .o finding. Thus, LILCO did to some degree try to rebut the i negative FEMA findings in an indirect fashion, i.e., in responding to the Governments' contentions. For reasons discussed in Sections III - X below, by and large, we found .

LILCO's evidence unpersuasive.

}3/ For purposes of Contention Ex 19, we rely solely on FEMA's Exercise findings characterized by FEMA as sufficien*.ly serious to preclude a reasonable assurance finding. As made clear in Sections III - X of this Decision, we find that the Exercise revealed many problems which preclude a reasonable assurance finding in addition to those identified by FEMA. '-

be implemented as demonstrated in the exercise; (2) There are deficiencies that may adversely impact public bealth and safety that must be corrected by the affected State and local governments in order tc provide reasonable assurance that the plan can be implemented; or (3) FEMA is undecided and will provide a schedule of actions leading to a decision.

50 Eidt Rea, at 15,487, Col. 3 (1985). FEMA's witnesses confirmed that with respect to the Shoreham Exercise, FEMA generally operated under the MOU, except at the highest policy l level where the "no findings" decision was made. Tr. 7481-82, 8371-72 (Kewieski); 83S6-57 (Kowieski, Keller).

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40. Pursuant to FEMA's methodology of conducting exercises, FEMA categorizes problems which it detects in an exercise into three groups -- Deficiencies, " Areas Requiring Corrective Action"

("ARCAs"), and " Areas Recommended For Improvement" ("ARFIs").

Deficienci~es are the most serious. As we found earlier, (ggg Part One,Section II), a FEMA Deficiency is essentially identical to our " fundamental flaw": it represents an inadequacy or defect which precludes a reasonable assurance finding. When a FEMA exercise evaluation includes the identification of Deficiencies, FEMA does not make a favorable reasonable assurance finding.

Tr. 7503-505, 7610 (Kowieski, Keller).

41. In its evaluation of the Shoreham Exercise, FEMA identified four Deficiencies. Tr. 7610, 8651-52 (Keller); 8644, ,

8448-49, 8646 (Kowieski).31/ FEMA stated that at least three of 4

the Deficiencies were entirely independent of the non- -

participation of the Governments. Tr. 8545-47, 8587-89, 8643, 8645 (Keller, Kowieski, Baldwin).25/ The FEMA witnesses testified that but for FEMA's pre-Exercise policy decision not to include a bottom line reasonable assurance finding in the .

Shoreham Exercise assessment, the existence of these Deficiencies would have led to a negative, "no reasonable assurance" FEMA finding. Tr. 8645-46, 8651-52 (Kowieski, Keller). Thus, in any otner exercise, the Deficiencies FEMA identifled during the .. .

L Shoteham Exercise would have led to a no reasonable assurance '

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finding. Tr. 8646'(Kowieski). Thus, the second finding quoted .

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above from the MOU - "there are deficiencies that may adversely ,

s 11/ FEMA originally identified five Deficiencies. One of them, [ .]

concerning LILCO's failure to dispatch bus drivers until two .- i hours after receipt of the Site Area Emergency declaration (FEMA v :

Ex. 1, at 62), was changed to an ARCA after the Exercise. Egg FEMA Ex. 3, Table 3.6, at 1. The four remaining Deficiencies ,'

identified by FEMA involved LILCO delays in responding to two road impediment free-play messages, problems with the f 7s{'.

E.

dissemination of information at the LILCO Emercency News Center ,:,,'

(which also affected LILCO's Rumor Control system), LILCO bus , 1. ' -

driver errors, and LILCO delays in the dispatch of Traffic cf Guides. FEMA Ex. 1, a t 36-38, 39, 53-54, 64-66, 74-75. These j 9.';y matters are dealt with in detail in later portions of this , L Docision.

' (;}

15/ The witnesses stated that the Traffic Guide deficiency would U;;h have been grad 9d the same if police officers had performed as did LILCO. The witnesses felt, however, that perhaps police officers . *,

would have gotten to their posts more rapidly than did the LILCO '.1. '

personnel assigned to be Traffic Guides. Egg Tr. 8587-90 4 (Baldwin, Kcvieski, Keller). . ,.

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impact public health and safety that must be corrected by (LILCO) 17 ;. -

in order to provide reasonable assurance that the plan can be lJ 1. "i implemented" -- would have been the FSMA finding for the Shoreham I[

Exercise. Tr. 7503-505, 8360, 8645-46, 8651-52 (Kowieski), ,

8365-66 (Keller). The only reason a negative finding was not .

l expressly made in the FEMA Report for the Shoreham Exerc'se was , 'l J l

the policy:-based reason announced by FEMA on October 29, 1985; I

[

the lack of a negative finding was not mandated by the Exercise ;

t-results. Tr. 8645-46 (Kowiecki). -' . , ' '

e.

42. We find the foregoing to be significant. Quite aside ,,..'

from the governmental participation issue, there were at least .

three, perhaps four Exercise results identified by FEMA that ,

, oreclude a reasonable assurance finding. For all important / .

purposes, therefore, FEMA did make a 10 CFR S 50.47(a)(2) finding conc.erning LILCO's Exercise performance, and that finding was necativg. LILCO offered no contentions to attempt to rebut that .

l FEMA finding. Thus, there are unrebutted negative FEMA findings l on the implementability of the LILCO Plan based on the Shoreham y , ,J Exercise. Under 10 CFR S 50.47(a)(2) the NRC is oblig&ted to

[

base its findings on cuch unrebutted FEMA findings. Accordingly, ',

we find that based on the results of the Exercise, there is no .

reasonable assurance that LILCO can and will adequately protect -

the public in a Shoreham emergency.

- 29 ~

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UNITED STATES OF AMERICA NUCLCAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD in the Matter of )

)

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

) (EP Exercise) '

(Shoreham Nuclear P.ower Station, )

Unit 1) )

NRC _ STAFF BRIEF ON CONTENTION EX 19

1. INTRODUCTION i>ursuant to the October 3, 1986 Prehearing Confercnce Order, at 13, Contention EX 19 was admitted in order to address the legal question presented therein - "the extent to which FEM A's inability to make a favorsb!c finding reveals a fundaments! flaw in the plan . " M. The i

merits of this ' contention and the views of Applicant and Interveners are

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considered below.

1 l Interveners make two arguments. First it is argued that the lack of a favorable reascnable assurance finding is based on a finding by FEMA that the Exercise was too limited. intervenor Proposed Finding 31. Such a determination, according to Interveners, is itself a finding, which is to be presumed, if not rebutted. M. Interveners argue that such finding was not rebu tted , and thus must be accepted. Intervenor Proposed Findings 31 and 32.

Second, Interveners argue that under FEMA procedures, the several findings of deficiencies in the Exercise evaluation required FEMA to make a negative finding of reasonable assurance; and FEMA would have, but

e for a prior policy determination that no overall finding would emanate

. a from the FEMA review of the Exercise. Intervenor Proposed Findings 37-41. Moreover, interveners argue that such a finding was apparent from the FEMA evaluation report, and could have been, but was not, rebutted. Intervenor Proposed Finding 42.

Applicant argues in a separate pleading, LILCO's Brief on Contention ^,

i

\

( EX 19 ("Brief"), that Contention EX 19 is without merit. Applicant argues l In the alternative: First, if Contention EX 19 asserts that, because there l

was no State and local participation in the Exercise, FEMA could not make a reascnable assurance finding, that contention must be rejected because it is inconsistent with applicable legislation, Commission regulations and ,

adjudicatory decisions in this case permitting licensing of power reactors based on utility-only plans. Brief at 7 - 11. This argument is not addressed separately below since Interveners have not argued that Contention EX 19 is based on lack of State and local participation in the Exercise. Interveners' Proposed Findings, note 28.

Second, Applicant argues that if the contention would require a finding by FEMA of reasonable assurance based on the Exercise in order for the NRC to make an overall finding of reasonable assurance under 10 C.F.R. 50.47 (a)(1), there is no such requirement. Brief at 11-17.

Applicant's second characterization of the issue before us closely ,

coincides with Interveners' statement that "[t]he first issue is whether FEMA's inability to make any kind of express , bottom line, imple-rentability finding bars the NRC from making a reasonable assurance finding favorable to LILCO." Interveners' Proposed Finding 29.

~;.

The Board's original interpretation of the contention as addressing whether a favorable reasonable assurance finding by FEMA is required for licensing, however, is clear, and is the issue addressed below. See Prehearing Conferance Order, supra. Interveners' argument that the inability to make a favorable finding constitutes a negative finding is ,

unpersuasive. As proffered, the contention does not rely on a particular ,

reason why FEMA failed to make a finding. As noted in the Prehearing Conference Order, Contention EX 19 was set for legal argument.

Interveners' argument that the scope of the Exercise was too limited is a factual matter dealt with in Contentions EX 15 and 16, and is outside the scope of Contention EX 19. O Similarly, since the contention does not raise the individual Deficiencies found by FEMA as bases, we find it unnecessary to address interveners' argument that, based on its factual findings , FEMA did reach, or would have reached, a negative finding.

See interveners' Proposed Findings 30-36. U Returning to the issue which was raised by Contention EX 19, we find below that, under applicable regulations and decisional law, an overall favorable finding by FEMA of reasonable assurance based on the .*

1/ If Interveners' argument is based on the premise that due to lack of government participation, FEMA was precluded from making a reason-able assurance finding , something Interveners' have denied, this

Issue is dealt with below, in any event, as shown below, neither argument supports treatment of FEMA's action as a negative finding under NRC regulations. ,

2/

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Interveners argue that the findings of Deficiencies by FEMA were, ,-

under FEMA policy, tantamount to a negative finding which was unrebutted. There can be little doubt, however, that LILCO strenuously attempted, through its testimony and findings, to rebut the FEMA Deficiencies.

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t9

Exercise is not a requirement, and FEMA's failure to make such a finding N does not bar a finding of reasonable assurance by the NRC.

As a result, the absence of such a finding is not a fundamental flaw.

II. STATEMENT OF FACTS #

Inasmuch as this issue turns in part on the administrative ,

construction of NRC regulations, we address briefly the statements of .

FEMA and the NRC in connection with the question whether either FEMA or NRC contemplated that the absence of a FEMA reasonable assurance finding would preclude licensing of Shoreham by the NRC.

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On June 4, 1985 the Commission directed the Staff to request FEMA "$

to conduct an exercise of the LILCO Plan, noting that such an exercise .

"could yleid meaningful results, even though such an exercise may not satisfy all of the requirements of NRC's regulations." 3_/ The Commission noted that the exercise "could, as a minimum, identify the impact of the ,

limitations of > LILCO's plan when executed under the state and county

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restrictions. " Id. On June 20, 1985, the Staff requested that FEMA schedule as full an exercise as fea sible, reiterating the Commission's reasoning cited in the June 4,1985 directive. E Subsequently, FEMA responded by providing two options under -

which an exercise would be feasible, one limited to LILCO functions only (Option 1), or one including all functions and normal exercise objectives ,

with exercise controllers simulating roles of key state and local officials 3/ Memorandum from Chilk to Dircks , COMT R-85-5 A , June 4, 1985.

4/ Memorandum from Jordon, NRC, to Krimm, FEMA, June 20, 1985.

(Option 2. ). El FEMA stated that neither of the options it outlined would allow a finding by FEMA on offsite preparedness:

Any exercise without participation by State and local governments would not allow us sufficient demonstra-tion to reach a finding of reasonable assurance. This conclusion is based on the current legal decision with l

respect to utliity authority to perform civil emergency functions.

_i d, . Thus, FEMA's reasoning for not being able to make a reasonable assurance finding based on the Exercise was the fact that certain "civli emergency functions" reserved by law to State and local authorities would not be demonstrated.

Nevertheless, FEMA noted that NRC might be able to use the Exercise, though so !!mited, to make a predictive finding for licensing purposes.

However, that does not preclude the conduct of an exercise that would provide an indication to the Nuclear Regulatory Commission (NRC) as to utility

, onsite and offsite emergency capabilities. We believe l such a report would have value in decisions to continue the licensing process or possibly provide a basis on which the NRC could make predictive findings. Obviously, the value of such an exercise in the licensing process is a determination which can only be made by the NRC.

.I. d_ .

The NRC then requested FEMA to conduct an exercise consistent with the approach out!!ned in Option 2. 5 The Commission determined that conduct of n Exercise would provide "important and material information" by assisting a determination by the Commission as to whether 5_/ Letter from Speck, FEMA, to Dircks, NRC, October 29, 1905.

6/ Letter from Dircks, NRC, to S peck , FEMA, November 12, 1985.

' any defects that exist duc to lack of cooperation by State and local officials are significant under NRC regulation citing , 10 C.F.R. 5 50.47(c)(1). Long Island Lighting Company (Shoreham Nuclear Power -

Station, Unit 1), CLI-80-14, 24 NRC 36, 39, 41 (1086). The Commissica also determined that the conduct of an Exercise was necessary to evaluate LERO's capability to accommodate ad hoc governmental participation in the i event of an actual emergency. ,ld. at 40.

Ill. ARGUMENT As noted in LILCO's Brief, at 9, the Commission has held that in the situation presented in Shoreham -- that is, the refusal of State and local

! authorities to participate in offsite emergency planning -- NRC statutory l

authority permits and NRC regulations require an applicant be given an opportunity to demonstrate that the applicable emergency planning requirements can be met with a utility-only plan. CLI-83-13, 17 NRC 741, 742-43, citing 10 C.F.R. 50.47 (c)(1). Since that 1983 decision, the Commission has conducted hearings on the LILCO Plan, and more l

recently, on the Exercise of that Pla n. In CLI-86-13, 24 NRC 22, 29 (1986), Efter FEMA stated it would not make a reasonable assurance finding the Commission reiterated (in connection with its review of ALAB-818 legal authority issues):

. . . we intended our rules to be flexible. As we have stated before , we are legally' obligated to consider whether a utility plan, prepared without government cooperation, can pass muster. A utility plan might pass muster under 10 C.F.R. 5 50.47(c). Section 50.47(c) provides for licensing notwithstanding noncompliance with the N RC's detailed planning standards: (1) if the defects are "not significant";

(2) if there are " adequate interim compensating actions"; .

or (3) If there are "other compelling

reasons." The decisions below focus on (1) and (2) and we do likewise.

Thus the Commission has determined that Applicant cannot be denied a licerise merely because of the absence of a FEMA finding where there are no State and local emergency response plans for FEV,A to review.

Moreover , the Commission's emergency planning regulations, f

10 C.F.R. 50.47(a)(2), states in part:

The NRC will base its finding on a review of the Federal Emergency Management Agency (FEMA) find-ings and determinations as to whether State and local emergency plans are adequate and whether there is recsonable assurance that they can be implemented...

That same provision also states that:

A FEMA finding will primarily be based on a review of the plans. Any other information already availabic to i FEMA may be considered in assessing whether there is reasonable assurance that the plans can be implemented.

This provision, as well as the Memorandum of Understanding between the NRC and FEMA on this subject, make it clear that the regulations -

contemplate tilat the submittal by FEMA of " findings and determinations",

whether interim or final, will be based on review of State and local plans.

See Memorandum of Understanding Between Federal Emergency Management Agency and Nuclear Regulatory Commission (MOU), 50 Fed. Reg. 15485 (April 18, 1985). Neither the regulations nor the MOU are drafted so narrowly as to preclude the NRC from reaching its reasonable assurance finding based on Information presented to it, including FEMA's review of a utility-only plan. In view of the requirement , under 10 C.F.R. 50.47(c)(1) to consider a utility-only plan, a FEMA " review of the plans" and "any other information", pursuant to 10 C.F.R. 50.47(a)(2) perforce includes FEMA's review of a utility-only plan and the exercise thereof.

8'-

= Any other interpretation would render the interpretat!on of 10 C.F.R. 50.47(c)(1') given in CLi-83-13 a nullity, and be Innnsistent with CLI-86-14, which afforded LILCO an opportunity, through the conduct of '

i a FEMA monitored exercise, to show that limitations of the LILCO. Plsn are f.

not significant. 24 NRC ct 39.

Both the Commission and FEMA expressed the view that the review. f of a utility-only pan and an exercise of that plan might form the basis ,

for licensing Shoreham. See CLi-86-14, supra and discussion, supra.

See also 44 C.F.R. 350.3(c)(1), cited in LILCO Grief at 14. When FEMA informed the NRC that the planned exercise cculd not lead to a FEMA finalng, FEMA observed that it believed "such a report would have value in decisions to continue the licensing process or possibly provide a basis on wnich the NRC could make predictive findings." Ltr., Speck to Dircks, October 29, 1985. (As pointed out by Applicant, FEMA's own regulatory scheme limits FjMA findings to the review of State and local planning andl preparedness. Brief at 13.) The NRC Staff replied that such an exercise would be useful In the . licensing process for Shoreham.

Ltr, Dircks to Speck, November 12, 1985. Shortly thereafter, in denying a motinn to cancel the exercise, the Commission reiterated this view.

CLI-86-14, supra at 39. Thus, both the NRC and FEMA interpreted the regulations dealing with FEMA's role in the licensing process as providing for FEMA review of a utility-only plan even though such a review would not lead to an overall reasonable assurance finding. The administrative construction by the Commission and FEMA of their own regulations where, es here, such construction is consistent with their plain meaning , is entitled to great weight. See, GUARD v. NRC, 753 F.2d 1144, 1148-49

_ g -- 1 m

(D.C. Cir. 1985), citing- Deukmejian v. NRC, 751 F.2d 370, 381 (D.C.

' Cir.1984) .

Further support fcr the position that FEMA review short of a dispositve determination may suffice as a predicate for ilcensing is found in. Commission case law. In Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717,17 NRC 346,380 ,

(1983), and again in Pacific Cas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-776, 19 NRC 1373, 1378-79 (1984), the Commission stated that it " expects licensing decisions on em2rgency preparedness to be made on the basis of the best available information, and not deferred to await FEMA's final word on the matter."

Thus the Commission may rely on FEMA's preliminary views on the state of offsite emergency preparedness based on plans currently available to FEMA. g. While the foregoing Commission statements were not made with the instant situation in mind, the.y do provide additional support for tha conclusion, applicable here, that it is not the form of the FEMA information and review that counts, but whether "such information permits the Licensing Board to conclude that offsite emergency preparedness provides ' reasonable assurance that adequate protective measures can and will be taken in the even of a radiological emergency. '" (Footnote omitted) . Diablo Canyon, s,upra, at 1379.

The LILCO Plan has, in fact, been subjected to intensive review by FEMA, resulting in a series of assessments against applicable standards anc criteria, as enumerated in the FEMA Post-Exercise Assessment.

FEMA Ex.1, at 2. Thus, the Post-Exercise Assessment is only the latest "information" presented by FEMA as input to the licensing process under

_ _ _ - - _ _ _ _ - - - _ - - - - - - - _ _ _ l

10 C.F.R. 50.47(a)(2) and the .MOU. See Union of Concerned Scientists

v. NRC, 753 F.2d 1437,1450 (1984).

In sum, under CLI-83-13 and CLl-86-14, as they apply 10 C.F.R. 50.47(c)(1), the NRC is obilgated to afford an appl! cant an opportunity to show reascnable assurance that offsite emergency plans are adequate and can be implemented notwithstanding the absence of State and local i

government plans or FEMA reviews thereof. To require a FEMA reasonable assurance finding which FEMA's own regulatory scheme provides may only be made on the basis of review of State and local plans would be inconsistent with affording such opportunity. Here, FEMA was requested to, and did, conduct a review and assessment of the implementability of the LILCO Plan. Such a review, under Commission regulations , can form the foundation for an NRC finding of reasonable assurance. As a result,. a favorabic reasonable assurance finding by FEMA on review of a utility-only plan is not required for licensing, and tha lack of s,uch a finding cannot be a fundamental flaw in the LILCO Pl:n. This belng the case, Contention EX 19 must be rejected.

IV. CONCLUSION The inability of FEMA to make favorable reasonabit; assurance findings on the implementability of the LILCO Plan does not preclude an NRC finding of reasonable assurance under 10 C.F.R. 50.47(a)(1) that thsre is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency at Shoreham. As a result, the lack of a FEMA reasonable assurance finding cannot be a

s fundamental flaw in the Plan, as defined in CLI-86-11. Contention EX 19

(

ls' without merit, i Respectfully submitted, f k

eorge E Joh ,

Counsel or N Staff Dated' at Bethesda, Maryland this 11th day of September,1987

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LILCO. September 21,1957 CERTIFICATE OF SERVICE L.

In the Matter of .

LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) {

Docket No. 50-322-OL-3 s

I hereby certify that copies of LILCO'S REPLY TO INTERVENERS' PROPOSED FINDINGS ON RECEPTION CENTERS were served this date upon the following by telecopier or by hand as indicated by one asterisk, by Federal Express as indicated by two asterisks, or by first-class mail, postage prepaid, i Morton B. Margu3es, Chairman

Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board U.S. Nuclear Regulatory Commission j U.S. Nuclear Regulatory Commission Washington, D.C. 20555 q East-West Towers, Rm. 407 -

4350 East-West Hwy. Atomic Safety and Licensing Bethesda, MD 20814 Board Panel l U.S. Nuclear Regulatory Commission

} Dr. Jerry R. Kline

Washington, D.C. 20555 Atomic Safety and Licensing c Board Richard G. Bachmarn, Esq. * !

, ; U.S. Nuclear Regulatory Commission George E. Johnson, Esq.

East-West Towers, Rm. 427 U.S. Nuclear Regulatory Commission 4350 East-West Hwy. 7735 Old Georgetown Road Bethesda, MD 20814 (to mallroom)

Bethesda, MD 20814 Mr. Frederick J. Shon

Atomic Safety and Licensing Herbert H. Brown, Esq.

Board Lawrence Coe Lanpher, Esq.

U.S. Nuclear Regulatory Commission Karla J. Letsche, Esq.

East-West Towers, Rm. 430 Kirkpatrick & Locidiart 4350 East-West Hwy. South Lobby - 9th Floor Bethesda, MD 20814

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1800 M Street, N.W.

Washington, D.C. 20036-5891 Secretary of the Commission Attention Docketing and Service Fabian G. Palomino, Esq. **

i Section Richard J. Zahnleuter, Esq.

U.S. Nuclear Regulatory Commission Special Counsel to the Governor 1717 H Street, N.W. Executive Chamber Washington, D.C. 20555 Room 229 State Capitol Albany, New York 12224 1

o. m Mary Gundrum, Esq. Jonathan D. Feinberg, Esq.

Assistant Attorney General New York State Department of 120 Broadway Public Service, Staff Counsel Third Floor, Room 3-116 Three Rockefeller Plaza New York, New York 10271 Albany, New ' York 12223 Spence W. Perry, Esq.

Ms. Nora Bredes -

William R. Cumming, Esq. Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.

Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 Martin Bradley Ashare, Esq. **

Stephen B. Latham, Esq. ** Eugene R. Kelly, Esq.

Twomey, Latham & Shea Suffolk County Attorney I

33 West Second Street H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 <'#-

New York, New York 10278 M_

JamL4.N. tma Mary Jo rs

. Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: September 21,1987 i

ML20235F335

Contents

Text

SUBJECT:

SUBJECT:

Enclosure:

Contact:

Contact:

Enclosure:

Dear Mr. Dircks:

Dear Mr. Markey:

Dear Mr. Speck:

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ML20235F335

Text

SUBJECT:

SUBJECT:

Enclosure:

Contact:

Contact:

Enclosure:

Dear Mr. Dircks:

Dear Mr. Markey:

Dear Mr. Speck:

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