ML20235H657
| ML20235H657 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/25/1987 |
| From: | Mccleskey K HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | |
| References | |
| CON-#487-4508 OL-5, NUDOCS 8710010131 | |
| Download: ML20235H657 (307) | |
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' U c p 28 P553 UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION , Fr!CF r 80CrT4gr*. q , ;p s
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5 l ) {EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
I LILCO'S REPLY TO INTERVENERS' AND NRC STAFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE FEBRUARY 13,1986 SHOREHAM EMER_G, ENCY PLANNING EXERCISE VOLUME 1 l
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l HUNTON & WILLIAMS 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 September 25,1987 i
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1 8710010131 870925 PDR ADDCK 05000322 G PDR u____________________________
- l l 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO S REPLY TO INTERVENERS' AND NRC STAFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE FEBRUARY 13.1986 SHOREHAM EMERGENCY PLANNING EXERCISE VOLUME 1 HUNTON & WILLIAMS 707 East Main Street ,
P.O. Box 1535 Richmond, Virginia 23212 September 25,1987 I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensinst Board in the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) ) i LILCO'S REPLY TO INTERVENERS' AND NRC STAFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON
.THE FEBRUARY 13,1986 SHOREHAM EMERGENCY PLANNING EXERCISE TABLE OF CONTENTS Paste In trodu c tio n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. The Parties' Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. Legal S t a nd a rd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The C on ten tions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 I. Scope of the Exercise (EX 15.A-I, K, M;
- 16. A - L , N ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 II. Sa m ple Size (EX 21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 5 III. Roadway Impediments (EX 41. A, B, E). . . . . . . . . . . . . . . . . . . . . . . . . . . 26 IV. Backup Route Alert Notification (EX 34). . . . . . . . . . . . . . . . . . . . . . . . . 35 V. Mobilization of Traffic Guides (EX 40.A B, E) . . . . . . . . . . . . . . . . . . . . . 37 VI. Wind Shif t ( E X 3 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 l \
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P_,!yte VII. ' Monitoring at Nassau Coliseum (EX 22.A; 49) . . . . . . . . . . . . . . . . . . . . . 46 VIII. Registering, Monitoring, and Decontaminating Evacuees from Special Facilities (EX 47) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 IX. Adequacy of Public Information (EX 38; 39; 40.C; 2 2. F ; 4 4 ; 4 9. C) . . . . . . . . . . . . ' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 X. Training (EX 5 0) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 7 C on clusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
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LILCO, S:ptember 25,1987 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of ) j
) j LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5 l
) (EP Exercise) l (Shoreham Nuclear Power Station, )
Unit 1) ) ;
1 LILCO'S REPLY TO INTERVENERS' AND NRC STAFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE FEBRUARY 13,1986 SHOREHAM EMERGENCY PLANNING EXERCISE l
Here, as prescribed by 10 C.F.R. 5 2.754(a)(3) (1987) and the schedule adopted by ]
1 the Board, is LILCO's reply to the Interveners' and the NRC Staff's proposed findings of fact and conclusions of law on the February 13,1986 Shoreham Exercise litigation. The i Interveners' 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 February 13, 1986 Shoreham Exercise," are dated August 17, 1987. The NRC Staff's findings (hereinaf ter "N.F."), entitled "NRC Staff's Proposed Findings of Fact and Con-l l clusions of Law on the February 13, 1986 Emergency Planning Exercise," are dated l
1 September 11,1987. LILCO's proposed findings, dated August 3,1987, are cited herein !
as "L.F."
This reply is divided into two volumes. The organization of Volume I, a thematic I brief responding to the legal issues and the individual contentions, matches the organi-zation of LILCO's proposed findings of August 3.II Volume II is a table that addresses, l l
1/ The reply to Interveners' and NRC Staff's findings on Contention EX 19, which was addressed in a separate brief in LILCO's August 3 filing, has been included in this (footnote continued)
finding by finding, the details of the Interveners' and NRC Staff's proposed findings.
INTRODUCTION LILCO asks that this Board reject the Interveners' proposed findings in their en-tirety in favor of LILCO's, which are more balanced and apply the appropriate legal standards. LILCO also asks that this Board reject the NRC Staff's proposed findings on Contentions EX 40,41, and 50, because they misapply the " fundamental flaw" standard.
I. THE PARTIES' FINDINGS The Interveners' findings suffer from numerous shortcomings which render them virtually useless to the Board in preparing an opinion. First, the Interveners have made 1
no attempt to file balanced findings that would aid this Board in its decisionmaking. I
{- Rather, they have filed 626 pages of one-sided argument, concluding on every issue l
raised in this litigation 2/ that each, no matter how the facts developed in the record or how trivial the issue, results in a fundamental flaw. They support these conclusions with findings that generally parrot their prefiled testimony; conflicting testimony, 1
whether from LILCO, FEMA, or the Staff, is largely ignored rather than evaluated. The Interveners have not sif ted the record and they have not joined issue. They have simply repeated the views that they have articulated previously in their contentions and 1
prefiled testimony.
i (footnote continued) reply brief in the discussion of fundamental flaw and of Contentions EX 15 and 16. In-tervenors have largely abandoned the arguments in Contention EX 19. See I.F. 26-52.
2/ With the possible exception of Contention EX 21. It is unclear what the Interve-nors are arguing there.
Worse, the Interveners misuse the record in their findings. Of ten, their factual assertions bear little resemblance to the record cited in support. Statements are taken j out of context, or are refuted in other ignored parts of the record. And they cite evi-dence for purposes other than those for which the evidence was admitted. Where, for {
example, the Board limited or rejected information from other exercises contained in FEMA post-exercise assessments on the ground that the information was unreliable be-cause it could be given a variety of interpretations, the Interveners now cite that infor-mation as though it were unchallenged, affirmative evidence.E S_ ee, e.g., I.F. 60 n.49, 92 n.68,98 n.75. And where certain evidence was admitted as background as a result of motions to strike, the Interveners try to use it to revisit issues they lost in the litigation of the Plan. S_ee, e e.g., I.F. 241,243,385.
Further, the Interveners offer this Board no guidance on the legal standard the Board should use when reviewing the Shoreham Exercise. At numerous points Interve-nors contend that if the factual allegations of the given contention remain unchallenged, it follows as a matter of law that a " fundamental flaw" exists in the 1
LILCO Plan. See I.F. 505, 528. The Interveners' proposed findings, however, do not connect the facts alleged in their contentions, the facts developed on the record, and j l
the concept of "f undamental flaw." In addition, the Interveners' proposed findings con-tinually shift in articulating the review standard the Board should apply: Interveners ask the Board to find numerous " fundamental flaws"; in other instances, they ask the Board to determine whether the Board can make a " reasonable assurance" finding on a given issue, e_.L I.F. 600; occasionally the question becomes whether LERO can implement the LILCO Plan, e.g., I.F. 884.
l 3/ This is not the first time the Interveners have filed one-sided findings in the Shoreham proceeding. In the safety hearings, for example, the Brenner Board noted that its already-difficult task of reaching a decision was "further compounded by the County's misrepresentation of the complete record - by omission, selective citations and distortion of recorded testimony." Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57,18 NRC 445,579 (1983).
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_4 The Interveners' proposed findings are replete with invitations to revisit issues already resolved during the Plan litigation, or find that given Exercise objectives were or were not met (and thereby conduct a review of the FEMA Report). These are not the purposes of this litigation. The proper inquiry to be addressed is whether the LILCO Plan is fundamentally flawed as shown by the February 13,1986 Shoreham Exer-cise.
Finally, the Interveners' proposed findings are mired in trivia, the Interveners ask the Board, for example, to concern itself about whether one particular message
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during the day of the Exercise said " fuel truck" or " gas truck" and whether the differ-ence is significant. S_ee e I.F. 288 n.200. This sort of detail is contrary to the predictive nature of emergency planning findings, see Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076 (1983), and is unnecessary to a determination of whether a fundamental flaw exists. As discussed further in part II.B below, the concept of " fundamental flaw," coming at the end of long scrutiny of an emergency plan, involves by its very nature a failsafe screening, not a detailed exami-nation.
Numerous examples of the shortcomings in the Interveners' findings are given in the issue-by-issue analysis contained in the table that makes up Volume II of this reply.
l Due to the length of the Interveners' proposed findings, however, LILCO cannot take up the shortcomings in detailin this brief; that would necessitate a reply brief as long as 1
the Interveners' findings. The reply findings table in Volume II lists in the lef t column the number of the Intervenor finding being addressed, in the middle column LILCO's re-sponse in a shorthand fashion according to one of nine categories of shortcomings, and in the right column the citations that refute the Intervenor finding and support the LILCO response. The table is referenced in this brief as " Response to I.F. .
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These are the nine categories of shortcomings contained in the table:
Not supported by citation. The portion of the record cited in the Interveners' finding is substantially different from the "f act" asserted by the Interveners in the finding.
Out of context. The portion of the record cited by the Inter-venors includes only part of the pertinent record on the issue, and ignores explanations or qualifications included in the record on that point.
Refuted by record. The portion of the record cited by the In-tervenors in isolation is misleading, because it ignores other portions of the record which contradict the isolated state-ments cited by the Interveners. This category includes find-ings where the Interveners have taken statements from drill ,
reports, observer forms, or player documents and ignored ex-planations or clarifications of those statements, and where the Interveners have cited their prefiled testimony and ig-nored subsequent cross-examination or contradictory testimo-ny from other parties.
Unjustified inference. In their findings, the Interveners put together bits and pieces of testimony in a way that unfairly characterizes the record, because they draw inferences or conclusions from the bits and pieces that are not supported by the record, and because otherwise accurate statements are qualified with a "however" or "although," giving the state-ment a cast not supported by the record.
No citation. The Interveners have not included a citation to the record to support their finding, and it does not appear that the record can support it.
Beyond regulatory requirements. The Interveners state that LILCO has failed to mot the requirements of 10 C.F.R.
S 50.47, 10 C.F.R. Part 50 Appendix E, or NUREG 0654/ FEMA Rep.1, but these regulations or guidelines do not include the i
requirement the Interveners allege LILCO has not met.
Outside the scope of the contentions. The Interveners raise in the finding events and issues beyond the issues raised by l the Contentions.
l Relitigation of planning issues. The Interveners' finding revisits issues decided by the Licensing Board in the Partial Initial Decision on emergency planning. and outside the scope of Exercise events.
Evidence used beyond scope of admission. The Interveners' finding improperly uses evidence, admitted for limited pur-pose or as background, for a much broader purpose.
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l The result of this analysis is that the Interveners' proposed findings must be re-jected by the Board.
Taken as a whole, the NRC Staff's findings do not suffer from the same broad- l reaching infirmities as the Interveners' findings. The Staff's findings tend to be more balanced, taking into account testimony from all parties, and viewing the record as a whole rather than selected pieces of it. The difficulty with the NRC Staff's findings is that on the three issues on which the NRC Staff would have this Board find against f LILCO - Contentions EX 40, 41, and 50 - the Staff has not consistently applied the fundamental flaw test defined in its findings. LILCO has also addressed the Staff's find-ings in detail in a table contained in Volume II of this reply, focusing only on those find-ings supporting the Staff's conclusions on Contentions 40, 41, and 50, to provide detail for LILCO's discussion in this brief of its disagreements with the Staff's proposed out-come on those issues.O The table is referenced as " Response to N.F. .
II. LEGAL STANDARD LILCO, the NRC Staff, and the Interveners all agree that this Board's charge is to determine whether there are any " fundamental flaws"in the LILCO Plan disclosed by the Exercise litigation. The parties disagree in important respects, however, about what the term " fundamental flaw" means.
l 4/ This is not to say that LILCO supports each proposed finding on the issues where the Staff would have the Board rule in LILCO's favor. To the contrary, there are some instances in the NRC Staff's proposed findings where the Staff adopted portions of In-l tervenors' findings that are incorrect for one of the nine reasons stated in the table.
I Except for the findings addressing Contentions EX 40,41, and 50, however, LILCO's dis-agreements with the details in the findings submitted by the Staff do not cut to findings which are essential to buttress the reasoning underlying the Staff's outcomo on those issues. Therefore, LILCO has not included those relatively few disagreements in the table. For a discussion of those sorts of disagreements, see for example LILCO's reply below addressing Contentions EX 34 and EX 38 and 39.
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The Interveners define a fundamental flaw as "a deficiency revealed in an exer-cise 'which preclude (s) a finding of reasonable assurance that protective measures can i
and will be taken,'" citing CLI-86-11 (LF.12), and equate a " fundamental flaw" with a j
" Deficiency" as defined by FEMA (I.F.12 n.16). By defining a fundamental flaw in this fashion and then applying the definition throughout their findings to conclude that each l
and every contention litigated in this proceeding identified a fundamental flaw in the l LILCO Plan, the Interveners ignore the predictive standard of reasonable assurance l that applies in emergency planning proceedings; they ignore the vast quantity of sub-l stantive rulings already made on the Plan, preferring to cut their proposed findings out j 1
of whole cloth and reclamoring settled planning issues in the process; they view the Ex- l l
ercise as a first impression of the LILCO Plan rather than the final look it was designed j to be; and they merely parrot in an unenlightening fashion words from a Commission 1 \
order, without offering any helpful way of determining the standards that are to be ap- l plied in identifying a fundamental flaw. l The NRC Staff also adopts the language of CLI-86-11, stating that " exercise l
l findings are material to the predictive finding of reasonable assurance only insof ar as )
the exercise results ' revealed any deficiencies which preclude a finding of reasonable assurance that protective action measures can and will be taken, la, fundamental flaws in the plan,'" N.F. 6, citing CLI-86-11, 23 NRC 577, 581 (1986). In stating this I l
standard, the NRC Staff notes that emergency planning findings are predictive (N.F. 5),
and that the Staff's proposed standard was adopted by this Licensing Board in de-termining the admissibility of Contentions (N.F. 6-7). Unlike the Interveners, however, the NRC Staff does not definitionally equate " fundamental flaw" with " Deficiency" as defined by FEMA. See N.F.13-16. l l
Interveners' proposed standard, to the extent it is enlightening, is clearly incor-rect. The NRC Staff's proposed standard, while not so clearly in error as that of 1
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Interveners, is not applied by the Staff consistently throughout its findings, thus sug- l gesting shortcomings in its basic articulation. The following section places these mat-ters in pempective and outlines a workable standard for the term " fundamental flaw."
Fundamental Flaw Standard 1
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l To make sense of the " fundamental flaw" concept, one must look first at Union '
of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.1984). There, the Court ruled I
that the NRC must afford the opportunity for a hearing on the results of emergency 1
planning exercises because the Commission regards the exercise as a material factor in making its licensing decisions. While the Court rejected the NRC's arguments that the exercises should be treated as part of preoperational testing of nuclear plants and therefore should be conducted in the post-adjudicatory phase of licensing, M at 1441, 1447, the Court accepted the NRC's characterization of the role of exercises in the 11-censing process. The NRC noted, and the Court accepted, that the exercise comes at the end of a long process of review and evaluation, including adjudicatory hearings, about the state of emergency planning at a power plant. I_d. The confirmatory nature of exercises was recognized in the rule promulgated by the NRC and subsequently suc-cessfully challenged in the Union of Concerned Scientists case. Under the rule, inter-ested parties could obtain a hearing on an exercise only by reopening the record or pe-titioning for recission of a license, should the " actual conduct of an exercise identify j fundamental defects in the way an emergency plan is conceived," 47 Fed. Reg. 30,233 (1982)(emphasis added); see Union of Concerned Scientists,735 F.2d at 1441,1443. The l Court explained that The Commission distinguished such fundamental defects justi- {
fying reopening of a hearing from those "which only reflect j the actual state of emergency preparedness on a particular j day in question." i Id. at 1441, quoting 48 Fed. Reg. 30,233 (1982). Emphasizing the fundamental nature of ,
the defects to be identified in an exercise, if any, the Court went on to note:
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l Although in any particular licensing proceeding, the exercise may not raise any material issues about the adequacy of the j preparedness plans, the Commission cannot and does not j argue that assessment of these exercises is immaterial to its I licensing decision.
E at 1445 (emphasis added). Thus, the case turned upon the Commission's concession that the exercise assessment was a material factor in licensing decisions.
The Commission argued throughout its brief in Union of Concerned Scientists that exercises should be treated as part of the preoperational testing of nuclear plants in the post-adjudicative phase of licensing, & at 1446, and that "the exercise is only relevant to its licensing decision to the extent it indicates that emergency prepared-1 ness plans are fundamentally flawed, and is not relevant as to minor or a_d hoc problems j occurring on the exercise day. & at 1448. The Court, while rejecting the Commis-sion's proposed procedure, nevertheless accepted the Commission's proposed substan-tive test. In ruling that the NRC must afford interested parties an opportunity for a hearing on an exercise, the Court stated that it "in no way restrict (s] the Commis-ston's authority to adopt this (fundamental flaw) as a substantive licensing standard," l l
and noted that "[u]nder that standard, the NRC could summarily dismiss any claim that did not raise genuine issues of material fact about the fundamental nature of the ,
i emergency preparedness plans." % The Court emphasized that " emergency prepared- l l
ness erwises . . . are evaluated to ensure that they do not reveal any fundamental inadequacies in the nature or implementation capacity of emergency preparedness j i
plans." % at 1451 (emphasis added).
Thus, the Union of Concerned Scientists case establishes the baseline for de-termining whether there exists a '" fundamental flaw". It is clear from that case that the NRC and the Court recognized that an exercise came at the end of a long process 1
of regulatory and adjudicatory review of emergency plans; that the concept of exercise litigation should be reviewed broadly with an eye toward whether there existed major, l
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extensive review process; and that the NRC, at least, was content to apply the much stricter reopening standard before litigating an exercise. Clearly it was contemplated that it would be a rare case indeed in which a " fundamental flaw" in an emergency plan would be revealed for the first time during an exercise.
LILCO went into the February 13, 1986 Exercise in precisely the posture con-templated in the Union of Concerned Scientists case. Its plan had already been scruti-nized by FEMA, the NRC Staff, and the Commission; every jot and tittle of it had been litigated in a proceeding that included 80 days of hearings, consumed over 15,000 tran-script pages plus over 7,000 pages of prefiled written testimony, involved 86 witnesses, and resulted in a two-part, 276 page opinion from the Atomic Safety and Licensing Board and numerous additional opinions on appeal and remand.
Interveners' Definition The definition of fundamental flaw proposed by the Interveners ignores Union of Concerned Scientists and the prior litigation in this case, and asks instead that this l l
Board review the February 13, 1986 Shoreham Exercise as if there had never been any prior review of the LILCO Plan. The Interveners urge this Board to accept a definition
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of " fundamental flaw" that is at odds with Union of Concerned Scientists, where that term was first coined, it is clear from Union of Concerned Scientists that the exercise litigation was to be viewed as a final step, not a first step, in reviewing the emergency plan, and that it was to be used to identify fundamental flaws in the plan - not isolated {
problems of implementation as a result of individual actions on the day of the exercise.
The undiscriminating nature of the Interveners' definition of a fundamental flaw is borne out in the conclusions in their proposed findings of fact, which would have this Board find that each and every problem raised on the day of the Exercise and identified in the Interveners' 160-odd pages of Contentions resulted in a fundamental flaw in the LILCO Plan. This reasoning defies common sense.
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It is in the context of the Union of Concerned Scientists case and the role of ex- )
ercises in the NRC's emergency planning review process that LILCO's definition of
" fundamental flaw" makes sense. See L.F. at 8-11. According to that definition, the flaw must be (1) fundamental, that is, substantially affecting the health and safety of the public; (2) systemic or pervasive, rather than consisting of isolated and essentially independent problems; and (3) not readily correctable by means of additional training, the purchase of new equipment, or some other reliable and verifiable method, but rath-er requiring substantial, potentially far-reaching revision of the written emergency plan. The Interveners ask that the Board reject LILCO's definition, but they do not sug-gest how one is to identify a " fundamental flaw" as a result of an exercise. Apparently, the most that can be said is that the Interveners know a fundamental flaw when they see one, and they see one in every minor problem that occurred at the Shoreham Exer-cise.
The Interveners, in their definition of " fundamental flaw" and in their proposed findings, ignore entirely the concept of predictive findings for emergency planning; they do not even mention the concept. Qf. L.F.16-19. This is in flat contradiction to the Court's findings in Union of Concerned Scientists, & at 1445 n.14, noted in CLI-86-11, 23 NRC 577, 580 n.1,581 (1986). See also N.F. at 3-5. The Interveners also broaden the " fundamental flaw" test to include an application that is not supported by Union of Concerned Scientists, Shearon Harris, or CLI-86-11: that of fundamental flaw in implementation as opposed to one in the plan itself. All three of these cases talk about fundamental flaws in the plan. Union of Concerned Scientists,735 F. 2d at 1437; )
l CLI-86-11,23 NRC at 581; Shearon Harris,22 NRC at 909-910. In citing the fundamen-tal flaw definition from CLI-86-11, the Interveners expressly omit the "1.e., fundamen- I l
tal flaws in the plan" portion of the definition. I.F.12. The notion that an intervenor can prevail in exercise litigation by showing fundamental flaws in the implementation i
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of plans - but not in the plans themselves - is contrary to the plain language of the ;
l cases that have defined the fundamental flaw standard. It also ignores the predictive nature of emergency planning findings, and the NRC's view that an exercise is not "rel-evant as to minor or a_d hoc problems occurring on the exercise day." Union of Concerned Scientists,735 F. 2d at 1443; see N.F. at 3-5. At worst, systemic, pervasive problems in plan implementation on the day of the exercise, resulting in problems that could seriously affect the health and safety of the public in an emergency, could indi-cate a " fundamental flaw" in the Plan provisions relating to training. As discussed in some detail below, however, the sorts of proolems of implementation raised on the day 1 of the Shoreham Exercise do not point to a fundamental flaw in the training program, but rather to a_d hoc problems resulting from individual behavior on the day of the Exer-cise that are easily correctable and would not have affected the public health and safety.
l Running throughout the Interveners' proposed findings is the theme that, be-l cause their contentions were admitted, any contention whose factual assertions were not disproved automatically requires a fundamental flaw finding. This is not the case.
First, in the NRC licensing procedure, the standard for admitting contentions at the pleadings stage is much more lenient than the standard at the decision stage. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542,546 (1980); Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216,8 AEC 13 (1974); Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423 (1973). It is relatively easy to get a contention admitted in NRC practice; one need only make sufficient allegations to satisfy specificity and basis requirements - a matter of pleading, not proof. Ld. In this proceeding, the Board applied in addition the fundamental flaw test in keeping with NRC regulations, Union of Concerned Scientists, and Shearon Harris. Many of the
l Contentions admitted depended upon development of the factual record to determine 1
whether the alleged facts, even if proven, rose to the level of a problem that was " fun-damental" to the Plan.EI However, the Board is no longer at the pleading stage in this
{ proceeding. We now have a complete record. And that record does not include facts that support a finding of one or more fundamental flaws in the LILCO Plan as revealed by the February 13,1986 Exercise.
The Interveners also argue explicitly (I.F.12 n.16), and the NRC Staff seems to argue implicitly, see N.F.142, that a " fundamental flaw" is the same thing as a Def t-ciency as defined by FEMA. If that is the case, the NRC need not have gone to the trouble of arguing, and the D.C. Circuit of finding in Union of Concerned Scientists, ,
that there was a concept called " fundamental flaw" that might be shown as a result of nn exercise. If a fundamental flaw is the same as a Deficiency, the NRC has in effect abdicated its entire responsibility on emergency planning to FEMA. But common prac-tice shows that that is not the case; FEMA decides in the course of evaluating exercises that Deficiencies exist, but plant licenses are not automatically revoked. Indeed,10 C.F.R. S 50.54(s)(2)(ii) normally gives licensees four months to correct deficiencies in their state of emergency preparedness; af ter that time, if the deficiency is still not corrected then the Commission can order the plant shut down or take other appropriate enforcement action. That is because FEM A is looking at only one piece of the process:
a postulated accident plus a one-day response. The NRC, on the other hand, must con-sider emergency planning exercises in conicxt: as demonstrations of the final layer of many layers of safety systems at nuclear power plants, and a layer that is correctable at that.
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!/ This is not to say that, even considering the Interveners' Contentions under that standard, all of them were properly admitted. Indeed, it is LILCO's view that many of the Contentions were improperly admitted and that the scope of this proceeding was unnecessarily broadened as a result.
I Finally, it is clear from Union of Concerned Scientists that neither the NRC in argument nor the D.C. Circuit in its decision viewed deficiencies as equivalent to fun-damental flaws. Both the Staff and the Court of Appeals went out of their way to de-fine a fundamental flaw; both discussed at length the FEMA process that was part of the ultimate decisionmaking process on emergency planning adequacy lef t to the NRC, l and nowhere does that decision suggest that a Deficiency equals a fundamental flaw.
NRC Staff Definition The NRC Staff in its proposed findings adopts a definition of " fundamental flaw" that seems consistent with Union of Concerned Scientists and CLI-86-11. LILCO's quarrel with the NRC Staff's view of " fundamental flaw" is not so much in the defini-tion pe_r se as in the Staff's application of it. It appears that as to Contentions EX 40, 41 and .50, the Staff abandoned the requirement that the flaw be shown to be "funda-mental" in nature, that is, preventing the ability to make a reasonable assurance find-ing, or that it be a flaw in the plan. Thus, for example, the NRC Staff would have this Board find that the inability of certain bus drivers on the day of the Exercise to read dosimeters is indicative of a " fundamental flaw" in the training program. While the in-ability to read dosimetry might have been more than just one isolated event during the Exercise, it cannot be argued that that inability would have adversely affected the pub-lic health and safety in an emergency response.
The Staff ignores the "M, fundamental flaws in the plan" portion of its defini-tion in applying it to Contentions EX 40 and 41 as well, thus reaching a conclusion con-tradictory to its definition. In Contention 40, the Staff points out that the Traffic Guides dispatched from Patchogue arrived on time at their posts, but that the Traffic Guides dispatched from Riverhead and Port Jefferson did not. N.F.132. The Staff con-l cludes that l
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FEMA found a Deficiency in the deployment of Traffic Guides. FEMA EX 1, at 75. In regard to the timely manning of the TCPs for a controlled evacuation, the Board concludes that LILCO did not demonstrate reasonable assurance that its '
Plan can and will be implemented in the event of an emergen-cy.
N.F.132 (footnote omitted).
All three Traffic Guide groups were dispatched under the same Plan and proce-dures. One group implemented the Plan in a timely way; two did not. But it cannot be argued that this fact itself reveals a fundamental flaw "in the plan." At worst, the im-plementation problem identified in the Staff's findings on Contention EX 40 can only be considered as a fundamental flaw in the training program. And, as LILCO argues below, the untimely mobilization does not indicate a fundamental flaw in the training program, i but rather an a_d hoc problem on the day of the Exercise.
The same is true for Contention EX 41. There, the NRC Staff finds a "funda-mental flaw" in LERO's response to the impediments on the day of the Exercise. But the Staff flatly states in its findings that "this aspect of the Plan as written is ade-quate." N.F. 231 (emphasis added). Thus, the inadequate response, if analyzed at all as a potential fundamental flaw, can only be considered as one in the training program.
As shown in LILCO's proposed findings and below, the impediments response, while re-vealing deficient performance on the day of the Exercise which must and will be remedied, did not reveal any fundamental flaw in the Plan.
Nor have any other fundamental flaws been established in the training program i
contained in the Plan, as alleged in Contention EX 50. Many of the " flaws" complained of by the Interveners are not related to training. And those difficulties that can fairly l be considered training-related do not rise to the level of a fundamental flaw, either be-l cause (1) they are not systemic problems in the training program but rather ad hoc l
problems on the day of the Exercise or (2) they would not have adversely affected the j public health and safety. Thus, the Interveners' and Staff's proposed findings on l
l Contention EX 50 should be rejected. 1 l
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1 It is not this Board's mandate to make a reasonable assurance finding as to the adequacy of the LILCO Plan. Rather, its task is to review the February 13,1986 Exer- !
cise events and determine whether that Exercise reveals any fundamental flaws in the LILCO Plan that, at least until they are corrected, would preclude a finding of reason-able assurance. CLI-86-11, 23 NRC at 581. The Interveners have defined fundamental flaw in the broadest terms possible, and have applied the term as they define it so that i i
every alleged mistake at the Shoreham Exercise constitutes a fundamental flaw, thus ;
l rendering the term meaningless. The NRC Staff has proposed a somewhat narrower definition of the term, but has abandoned its own definition in applying it, finding fun-damental flaws on Contentions EX 40,41 and 50. This Board should reject these appil-cations, and find that there are no fundamental flaws in the LILCO Plan as revealed by the Exercise, and that the identified Deficiencies and Areas Requiring Corrective Ac-tion be corrected by the normal FEMA-NRC Staff remedial process.
LILCO understands full well that the Deficiencies and ARCAs identified by FEMA must be corrected in any event, and LILCO intends to meet that obligation. (In l
fact, some of these items already have been corrected.) As a practical matter, those l 1
corrections will include each item defined as a " fundamental flaw" by the NRC Staff in
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its proposed findings. This Board, therefore, need not retain jurisdiction over those items to ensure that they are addressed.
l THE CONTENTIONS I. SCOPE OF THE EXERCISE (EX 15.A-I. K, M: 16.A-L. N) i In their proposed findings on Contentions EX 15 and 16, LILCO and the NRC Staff ask the Board to find that the February 13, 1986 Exercise of the Shoreham Emer-gency Plan meets the requirements of 10 C.F.R. Part 50 for a " full participation" exer-l cise. Each reaches this conclusion af ter first reviewing the system the NRC and FEMA j l
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have set up for conducting exercises of emergency plans, seeing whether the Shcreham Exercise was framed in a manner consistent with that system, and evaluating the al-l leged omissions from the Exercise to see if they are of such significance as to render the Exercise less than " full participation." LILCO and the NRC Staff agree that the pertinent regulatory provisions for resolving this issue are contained in Appendix E to 10 C.F.R. Part 50, but both note that these provisions are not self-evident, so they en- ,
courage the Board to make use of available NRC and FEMA guidance as well as past ),
practice to discern the meaning of those regulatory terms.0/ L.F. 35-52; N.F. 39. With i regard to the scope of the Shoreham Exercise, LILCO and the NRC Staff agree that FEMA followed its normal practice in defining the parameters of the Exercise, that the Shoreham Exercise was " equal or greater in scope" than other full participation exer-cises, and that the alleged omissions contained in Contentions EX 15 and 16 are not so l
significant as to warrant a conclusion that the Shoreham Exercise was less than full participation. L.F.138-55; N.F. 34-35, 49, 53, 55, 57, 64, 67-72, 74, 77, 79, 81.
Interveners urge the Board to reach the opposite conclusion. In advocating this !
i result, Interveners take a decidedly different tack than LILCO or the NRC Staff. Inter- j venors have taken a result-oriented approach and attempt to demonstrate that one or more of the alleged omissions in Contentions EX 15 and 16 is a required element of a s/ LILCO's and the Staff's proposed findings disagree on the use the Board should make of the IEAL Report that was presented by Dr. Hockert on behalf of LILCO. ]
LILCO believes the report is helpfulin deciding whether the major portions were testod i and in assessing the significance of the alleged omissions. L.F. 68-71. The NRC Staff l would have the Board accord no weight to the report, not because of any articulated l defect in the report but because " adequate support" exists in the formal regulatory au- i thority for concluding that the Shoreham Exercise was full participation. N.F. 39. In-j tervenors appear to take something of a middle ground on this issue, recognizing that l the report was an effort in 1985 to have a variety of federal and state emergency plan-ners assess the importance of FEMA's standard objectives but arguing that the report does not change Interveners' asserted conclusion that the Shoreham Exercise was not !
full participation. I.F. 195-202. LILCO believes that each party has clearly stated its j position on this issue in its proposed findings. For brevity, the issue will not be further I explored in this reply. I l
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l full participation exercise and, hence, that omission of any of these from the Shoreham Exercise renders it less than full participation. In so doing, Interveners create a con-struct that is premised on an unjustifiably broad reading of the D.C. Circuit's GUARD decision, GU ARD v. NRC, 753 F.2d 1144 (D.C. Cir.1985), and contains numerous logical inconsistencies, that would have the Board ignore or destroy prior agency practice that has served as the basis for the operation for all nuclear power plants in the United j i
States.
l To understand Interveners' arguments, it is helpful to summarize briefly their '
proposed findings. Interveners begin by insinuating that the NRC's initial request to FEMA to conduct the Shoreham Exercise, FEMA's reply to that request, and the ensuing development of the scope of the Exercise all proceeded with the implicit understanding I i
I that the requirements of Appendix E would not be met. I.F. 50-56. Having created this illusory backdrop, see Response to I.F. 50,52,55,56, Interveners then proceed to dis-cuss the alleged omissions from the Exercise. I.F. 57-99. These discussions involve a i l
mixture of factual observations about what was or was not tested on the day of the Ex- !
ercise, examples of FEMA's past practice at other exercises and conclusory snippets from the oral testimony of FEMA's witnesses concerning whether particular items are l
" major observable portions" of the LILCO Plan. Next, Interveners briefly summarize each party's arguments. I.F.100-16. From there, they proceed to discuss the meaning of, what are in their view, the important terms of Appendix E. I.F.117-50. One def t-nition of particular note is that of "the major observable portions," which Interveners f l
construe to mean that all major observable portions of a plan must te tested during a full participation exercise. I.F. 130. Interveners, af ter noting that Ap;endix E does 1 l
not define what a " major observable portion" is and without clearly defining the term ]
themselves, argue that the omissions from the Shoreham exercise were " major," largely i
l because their witnesses so classified them. I.F.134-36. Interveners also suggest that l
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1 FEMA's 35 standard exercise objectives correspond to the major observable elements of a plan which in turn is synonymous with "the major observable portions." I.F.137. In-l tervenors' findings then argue that NUREG-0654 and FEMA's regulations and guidance l are irrelevant in determining whether Appendix E requirements have been met. I.F. !
151-66. Their findings conclude by offering responses to a variety of arguments raised by the LILCO and the NRC Staff, including the potentialimplications of the Board's ac-ceptance of Interveners' construct, the significance of the Staff's role in the formula-tion of the Exercise scope, and whether " legal authority" concerns justify omissions f rom the Exercise. I.F.167-94.
A response to these arguments can take many forms. This reply will focus on the major problems with Interveners' proposed findings and explain why those problems are so systemic as to render the proposed findings useless. A more detailed rebuttal to l particular findings is contained in the accompanying table. Arguments about the signif- j l
icance of particular omissions alleged in Contentions EX 15 and 16 are contained in that table and in LILCO's proposed findings. Those issues will not be addressed here.
At the heart of Interveners' findings is the pervasive theme that the Board can look no further than the language of 10 C.F.R. Appendix E in resolving the question of whether the Shoreham Exercise was a " full participation" exercise. Interveners rest j a
this argument primarily on a statement in the GUARD decision which observes that the l l
NRC cannot interpret the phrase " arrangements . . . made for medical services" in 10 f l
CFR S 50.47(b)(12) "as meaning something other than what those words, in the context !
i of a nuclear power plant emergency planning standard, may rationally convey." l GUARD, 753 F.2d at 1146; see I.F. 48.E Interveners would have the Board i 7/ The Commission had previously interpreted " arrangements . . . made for medical l services" to mean a list of hospitals that could be contacted during an actual emergen-cy. GUARD,753 F.2d at 1146.
i mechanically take this phrase and apply it to the language of Appendix E in a manner that would require the Board to interpret that language in a vacuum. !
i The GUARD decision does not stand for this sweeping proposition. The court in GUARD recognized that traditionally a high degrm of judicial deference is afforded an agency's interpretation of its own regulations. GUARD,753 F.2d at 1148. Only where there is " violence to the plain meaning of the provision"is deference not provided. I_d.
at 1148-49 (emphasis added). The language of Appendix E does not provide such clear guidance that the Board is bound solely to that latiguage. Indeed, the language of Appendix E, which Interveners feel compelled to discuss and define, includes general phrases like "the major observable portions of a Plan," "as much of the plans as is rea-sonably achievable without mandatory public participation,""other resources" and " par- !
ticipation" by States in the ingestion pathway EPZ. These phrases are sufficiently broad, both individually and collectively, to allow this Board considerable latitude in i consulting other sources for guidance on their meaning. Accordingly, GU ARD does not l
constrain the Board's ability to consider appropriate NRC or FEMA guidance or past practice in deciding whether the Shoreham Exercise was " full participation." l Interveners are also incorrect in their contention that the fact that FEMA fol-lowed its traditional approach in defining the scope of the Shoreham Exercise is irrele-vant to deciding if the Shoreham Exercise was full participation. Interveners' argu-ment is premised on claims that (1) FEMA and the NRC Staff ignored Appendix E in preparing the objectives for the Shoreham Exercise, (2) FEMA followed its own regula-4 tions in defining the scope of the Exercise and those regulations are not the same as the )
l NRC regulations on full participation exercises, (3) FEMA guidance memoranda are not 1
instructive since only one mentions Appendix E by name, (4) the NRC has never "sanc-l tioned" FEMA's normal practice of defining the content of a " full participation" exer- !
cise, I.F.158. First, as is explained in LILCO's Brief on Contention EX 19, both the
1 NRC and FEMA clearly contemplated that the Shoreham Exercise could be used as the licensing exercise. See also Response to LF. 50,52. Interveners did not address those arguments in their proposed findings on Contentions EX 15 and 16 or in their brief on l Contention EX 19. Accordingly, those arguments will not be repeated here.
Second, it borders on the absurd to believe that FEMA, the agency given the pri-mary function when it comes to reviewing and testing emergency plans for nuclear power plants, proceeds about that task in a manner which is inconsistent with the NRC regulations. See Response to I.F.106 n.84. It is all the more remarkable when one rec-ognizes that FEMA uses RAC Committees, which include NRC members, to oversee those review and testing functions, see Response to I.F.173, and that the Commission has licensed plants or allowed plants with licenses to continue to operate based on FEMA's review and testing.
Third, it is unnecessary for a guidance document to incant that it is designed to interpret 10 CFR Part 50, Appendix E in order for it to be useful for interpreting that provision. As is explained in detail in LILCO's and the NRC's proposed findings, it is evident that NUREG-0654, FEMA GM PR-1 and draf t GM EX-3 are useful in inter-preting Appendix E. L.F. 44-52; N.F. 38-39.
Fourth, Interveners suggestion that FEMA guidance and practice be ignored as being irrelevant is flatly inconsistent with their argument in the context of Contention EX 19 that the Board should defer to FEMA's finding or non-finding of reasonable assur-ance. A finding of " reasonable assurance" necessarily involves a variety of factual predicates including an exercise of proper scope to allow that conclusion to be drawn.
Accordingly, Interveners cannot suggest that FEMA is sufficiently cognizant of NRC regulations to have its finding or non-finding on " reasonable assurance" entitled to a re-buttable presumption in a licensing proceeding while, at the same time, its decision on the scope of an exercise is entitled to no weight at all.
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Finally, Interveners' findings take inconsistent positions with the regard to the use of past FEMA practice and guidance. See Response to I.F.127 n.94,141 n.106. At places, Interveners argue that FEMA conducts its exercises without regard to Appendix E requirements, and hence its practice at those exercises would be irrele-vant. However, at other places, they argue that past FEMA practice establishes that alleged exercise omissions are " major observable portions" of the LILCO Plan. Interve-nors cannot have it both ways.
Interveners' proposed construct is also wrong because it construes the provisions of Appendix E in logically inconsistent ways. In the first place, by defining the phrase "the major observable portions" to include all of FEMA's 35 standard exercise objec-tives, Interveners have rendered a large part of the remainder of the language of Appendix E mere surplusage. FEMA's 35 standard exercise objectives include ingestion pathway activities. If Interveners are correct that every " full participation" exercise (be it for an NTOL or an operating plant) must include those objectives, then the lan-guage of SS IV.F.1 and 3.(E) of Appendix E are rendered meaningless. See Response to I.F.138,139. Interveners implicitly recognize the problem created by their expansive definition of " major observable portions" in their discussion of the language of S IV.F.1 dealing with NTOLs. However, rather than address the inconsistency created by their interpretation, Interveners blithely proceed to suggest that the last sentence of S IV.F.1. merely reinforces that ingestion pathway activities must be tested in a full participation exercise for an NTOL.0/ !
l Interveners' interpretation also reads the modifier " major" out of the phrase
" major observable portion." See ' Response to I.F. 135, 136. One is hard pressed to 8/ LILCO has discussed its interpretation of Appendix E provisions relating to l NTOLS in its proposed findings. L.F. 59-67, 103-07. Those discussions will not be re-peated here. -l
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Imagine an observable portion of a plan that Interveners would not classify as major.
Indeed, Interveners' own witnesses testified that "[e]verything is major as far as we are concerned." Tr. 7219 (Papue). In their findings, Interveners have gone so far as to I define an individual EBS station, rather than the entire public notification system, as a
" major observable portion" of a plan. I.F.135 n.97. Yet, at another point in their find-ings, they turn around and note that at only one exercise out of all the others ever con-ducted in New York State did FEMA actually observe an EBS station carry out its emer-gency responsibilities. I.F. 183. Given this " testing"E omission, Interveners fail to explain, nor can they, how every other New York State exercise met " full participa-l tion" requirements.
Interveners have also expended considerable energy attempting to define the term "other resources" found in Footnote 4 of Appendix E, See I.F.125-29. Their rea-son for doing so is to have a basis for claiming that WALK, schools, and other special facilities needed to participate in the Exercise in order for it to have been full partici-pation. The problem with Interveners' argument is that they never directly define the term, relying instead on an arbitrary "I'll know it when I see it" approach. As a result, q l
one is lef t to wonder whether every organization and individual noted in a plan, even if 1
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not part of the emergency response organization, is an "other resource" that Interve-nors would require to participate in a " full participation" exercise. Interveners also f ail l to explain how their interpretation of "other resources" squcres with the provision that licensing exercises should test "as much of the plan as is reasonably achievable without mandatory public participation." .
Finally, Interveners' findings allege that an exercise of a utility plan must be broader in scope than those of governmental plans. I.F. 169. Interveners make no 3/ See I.F.118-20 for Interveners' definition of " testing."
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attempt to tie this alleged " requirement" to the language of Appendix E. Nor can they, since no such provisions appear in the Appendix. See Response to I.F.169. Thus, Inter-venors selectively use the language of Appendix E when it suits their purposes, and ig-nore it when it does not.
If accepted, Interveners' construct would disrupt a licensing basis for all, or vir-tually all, plants in this country. Fct example, looking only at Interveners' interpreta-tion of the phrase "the major observable portions" it follows that for a plant to have conducted a " full participation" exercise, that exercise must have included all 35 stan-dard FEMA exercise objectives. See 1.F.130-37. Those standard objectives include in-gestion pathway and recovery and reentry activities, which Interveners have also de-fined in other places as " major observable portions" of a plan.1.F. 98,143. New York State witnesses admitted that a full ingestion pathway test has never been conducted in New York State (L.F.105, I.F. 93), and that recovery and reentry have not been tested in New York State since August 1983 (see L.F.116). Given these f acts it can be argued that no plant in New York State has ever conducted a " full participation" exercise, and, l hence, that none has complied with the requirements of 10 C.F.R. Part 50, App. E.
There was no suggestion that exercises in New York State are any less demanding than those held under FEMA's supervision anywhere else in the nation.
Interveners' attempt to downplay the impacts of their construct does not with-stand scrutiny. See I.F.167-71. First, Interveners argue that their broad requirements apply only to NTOLs. I.F.168. Even a cursory review of Appendix E reveals that the term " full participation" applies to already operating plants as well as NTOLs. See 10 C.F.R. Part 50, App. E SS IV.F.1 and 3. Second, Interveners essentially contend that Shoreham is special, and therefore especially stringent requirements should apply. j l
1.F.169. This of t-repeated theme has no legal basis. Third, Interveners appear to ask j the 130ard to ignore the ultimate implications of their construct and merely find that
some omissions in the Shoreham Exercise departed from past FEMA practice. See I.F.
170. This unprincipled argument ignores FEMA witnesses' repeated assertion that they followed the same approach at Shoreham as at other Region II exercises. Finally, Inter-venors recognize that they may be asking the Board to break new ground and argue that the GUARD decision requires the Board to accept their construct. I.F. 171. As explained above, the GUARD decision imposes no such obligation on the Board.
As a result of these major weaknesses and inconsistencies, Interveners' findings should be rejected and the Board should dismiss Contentions EX 15 and 16 as meritless.
.II. SAMPLE SIZE (EX 21)
Little remains in dispute on Contention EX 21, which questions whether FEMA had observed sufficiently large samples of a variety of Exercise activities to draw meaningful conclusions about certain Exercise objectives. LILCO's and the NRC Staff's proposed findings ask the Board to conclude that statistically significant samples are not required for FEMA to draw meaningful conclusions about Exercise performance, that FEMA followed the same approach it used in other exercises in positioning its evalttators and in choosing the samples it observed during the Shoreham Exercise, and therefore, that Contention EX 21 is meritless.
Interveners merge their proposed findings on Contention EX 21 with those on Contentions EX 15 and 16. They would not have the Board reach a separate conclusion on Contention EX 21 but rather have the Board find that the assertedly inadequate samples of Route Alert Drivers, ambulance and ambulette drivers, and schools " support the view that the Exercise was too limited to f orm the basis for a reasonabic assurance finding." I.F. 213.N In so doing, Interveners retreat from their prefiled testimony 1_0/ Interveners have dropped the portions of Contention EX 21 dealing with Traffic Guides, Bus Drivers, and congregate care centers. LF. 205 n.145, 212.
which advocated the use of statistically significant sampling, I.F. 211, and do not con-test, except for schools, that the samples evaluated by FEMA during the Shoreham Ex-ercise were consistent with those evaluated at other exercises, I.F. 209.
l The three remaining groups now relied on by Interveners do not compel a finding in their favor. With regard to Route Alert Drivers, the prior Licensing Board concluded j that a backup notification system for the public is not required by NUREG-0654, PID at 759; hence FEMA's observation of Route Alert Drivers, even if deficient in size,U could not prevent a reasonable assurance finding. A larger sample of ambulances and ambulettes was unnecessary given the activities to be demonstrated and the possible detrimental effect that use of a larger sample might have on actual emergency service to the public. See L.F.176-79. Interveners' concern about the sample of schools ob-served is simply a repackaging of Exercise scope issues on schools raised in Contentions EX 15 and 16. Accordingly, Contention EX 21 should be dismissed as meritless.
III. ROADWAY IMPEDIMENTS (EX 41.A. B. E)
The Board has been offered three options for resolving Contention EX 41, which deals with LERO's response to two simulated roadway impediments. LILCO would have the Board conclude that while LERO's response to the two roadway impediments was not perfect and requires correction, the inadequacies were not of such magnitude as to find a fundamental flaw in the Plan. Alternatively, the NRC Staff asks the Board to find that while the Exercise results did not reveal that the LILCO Plan is fundamentally l flawed or inherently unworkable in its provisions regarding the removal of roadway im-1 pediments, the Exercise nevertheless revealed deficiencies, or under the Staff's view
" fundamental flaws," in LERO's ability to implement those provisions. Interveners I
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M/ LILCO has already refuted this claim in its proposed findings. See L.F.162-67.
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request that the Board find that the Exercise revealed fundamental flaws in the LILCO Plan as well as LERO's ability to implement that Plan. For the reasons below, LILCO believes that its proposed findings arrive at the only legally correct conclusion and ac-cordingly, they should be adopted by the Board.
NRC Staff's Findings The vast majority of the NRC Staff's proposed findings on Contention EX 41 are similar to LILCO's. For example, the Staff agrees with LILCO that the mobilization of Road Crews on the day of the Exercise (Contention EX 41.A) does not reveal a funda-mental flaw in the LILCO Plan. The Staff concurs that during the Exercise Road Crews were always in place to respond to impediments (L.F. 193,196, N.F.153); that not every Road Crew is required at the moment an evacuation recommendation is issued (L.F.193, N.F.157); that there is an oversupply of Road Crews (L.F.193, N.F.156); and that Interveners' argument that Road Crews should have been dispatched before an evacuation order was given is an improper attempt to relitigate planning issues (Re-sponse to I.F. 229,233 n.164, N.F.154). There is also no dispute between the Staff's and LILCO's findings on the factual events that comprise LERO's response to the two road- I way impediments on the day of the Exercise (L.F. 198-220, N.F.161-97), or that those events do not reveal a fundamental flaw in LILCO's written plan. L.F. 239-40, N.F.
229.
The dispute between the two sets of findings centers on whether LERO's implementation of the LILCO Plan regarding roadway impediments revealed a funda-mental flaw. The difference in the findings rests, in part, on the definition each party employs to define " fundamental flaw." Those issues have been discussed in section II.B of the Introduction above and will not be repeated here. However, LILCO and the NRC j l
Staff also disagree on the significance of LERO's shortcomings in responding to the im- l pediments to public health and safety.
The Staff's findings never clearly articulate why LERO's response to the impedi- l 1
ments constitutes a fundamental flaw in implementation of the Plan. With regard to l J
the gravel truck impediment, the Staff concludes that " delays were caused by at-tempting to verify the FEMA ' free play' message and by a failure to coordinate actions in dealing with the roadway impediment as called for in the LERO plan." N.F. 226.
Yet, earlier in its findings the Staff acknowledges that Revision 6 to the LILCO Plan provided for the verification of impediments should available information so require (N.F.147), and that a number of the coordination problems would have disappeared had j l
Information about the accident flowed back into the EOC from a variety of sources as would have been the case had an accident actually occurred (N.F. 226-27). Indeed, the I l
Staff's findings are unclear as to whether the Staff would have found a fundamental flaw in implementation had the facts regarding the gravel truck existed alone. See j N.F. 227 (implying actions regarding the gravel truck impediment were timely),229 (to i
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a " lesser extent" gravel truck response prevented demonstration of LERO's ability to deal with impediments).
With regard to the fuel truck impediment, the Staff concludes that LERO's ac- l tions were " generally untimely."MI N.F. 227. Specifically, the Staff cites delays (1) in I
dispatching a Route Spotter, (2) in issuing a rerouting message, (3) in a Traffic Guide re- l l
questing assistance and then receiving it (4) in notifying the fire department, (5) in l l
sending a Road Crew to the scene and (6) in contacting the owner of the truck to re-ceive assistance in offloading the overturned vehicle. N.F. 227-28. The Staff does not 1
j explain how these listed actions revealed a " fundamental flaw" in implementation l l
l M/ The Staff does not explain the criteria it has used for judging timeliness. In Con- l tention EX 50, the Staff classifies each impediment as an " unanticipated and 1 unrehearsed" event. See N.F. 423. If would appear to follow that in judging the time 11-ness of an emergency organization's response to an " unanticipated and unrehearsed" event some time allowance should be made for the ad hoc craf ting of a response. It is unclear whether the Staff has made such an addition in reaching its conclusions. l l
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although the basis is presumably one of timeliness rather than a criticism that any of the actions were improper or that any needed steps were not taken.
On the grounds of timeliness, the Staff's examples do not support the finding of a fundamental flaw. As LILCO witnesses explained, the delay in the dispatch of the Route Spotter would not have delayed verification of the accident had the accident ac-tually occurred. (L.F. 223). The issuance of the rerouting message and the contacting )
of the fire department were not untimely when one recognizes that the Evacuation Coordinator first addressed the fuel truck impediment at approximately 12:30, af ter having completed taking response actions on the gravel truck impediment. Response to N.F. 227-28, L.F. 212. These two decisions took only about 20 minutes.EI The Traffic Guide's actions were not unduly slow given his need to assess the geometry of the road-way, nor was the Port Jefferson Staging Area slow in taking 22 minutes to dispatch an additional Tran:n Guide with equipment in response to the Traffic Guide's request. Re-sponse to N.F. 227. Finally, complaints about delays in sending a Road Crew and in contacting the owner of the overturned tanker are misplaced since in the absence of an actual accident, or a message from a controller which was not given during the Exer-cise, it is impossible to tell when the fire department would have had the fire hazard from the accident under control and a Road Crew or truck for offloading would be re-quired.M Response to N.F. 228; L.F. 224. {
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1_3/ The rerouting instructions were transmitted to the Port Jefferson Staging Area at 12:47 or roughly 20 minutes af ter the Evacuation Coordinator addressed the fuel truck impediment. See L.F. 212. While no record exists of when the fire department was contacted, a 12:37 message to the Port Jefferson Staging Area ordering a Route Alert Driver to be dispatched to the scene of the fuel truck impediment to take dcsimetry readings for the firemen suggests the fire department was contacted within l 10 mh:utes. L.F. 212.
M/ With regard to the Road Crew, it is unclear what the Staff's finding means when its uses the term " assistance." If the Staff means radiological monitoring assistance, then a Route Alert Driver was dispatched to the scene with dosimetry more than one hour before the dispatch of the Road Crew. L.F. 212,219. l l
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t Most importantly, the Staff never explains how these " untimely" actions would l have affected public health and safety - the appropriate focus in classifying an item as a fundamental flaw. If one accepts as the Staff does, see N.F. 227, that the Evacuation ;
i Coordinator would have been aware of the fuel truck impediment much sooner had an accident actually occurred, then the remaining Exercise results demonstrate that a l l
rerouting scheme could and would have been promptly chosen and implemented in the '
field.EI The effect on total evacuation times, and hence, public health and safety, would have been minimal or nonexistent. See Response to I.F. 302. Accordingly, the Staff's findings fall to demonstrate the finding of a fundamental flaw is warranted and in this respect they should be rejected.
Interveners' Findings Interveners' proposed findings on Contention EX 41 suffer from so many ills that the Board's best course is simply to reject them entirely. At the most basic level, the findings take evidence out of context, distort other evidence, make sweeping general-izations having little or no factual support, contain Interveners' own, incorrect inter-pretation of the LILCO Plan and Procedures, and raise f or the Board's resolution minute issues that, even if true, could never rise to the level of a fundamental flaw. These problems are discussed in detail in the accompanying table.E In addition, the findings 15 / Following the Evacuation Coordinator's initial involvement in the gravel truck impediment at 12:13, it took seven minutes to transmit a message to the Patchogue Staging Area which contained instructions for rerouting. L.F. 203-04. Rerouting in-structions for the fuel truck impediment were transmitted within approximately 20 minutes of the time the Evacuation Coordinator began to consider the problem. L.F.
212.
16/ See, for example, Response to I.F. 219 (a LILCO witness notes that one individual could have fed information upwards more " expeditiously"; when Interveners are finished interpreting this testimony, LILCO has " conceded" that "better intra-organizational Communication could have been achieved"); Response to LF. 318, 318 n.223, 318 n.224 (Interveners distort the record in criticizing LERO's fuel truck rerouting scheme); Response to I.F. 234 (as support for their broad assertion that the (footnote continued)
{
contain numerous invitations for the Board to revisit planning issues that have previ-ously been decided adversely to Interveners. Examples include the number of accidents l
that are likely to occur during an evacuation of the Shoreham EPZ, their effect on evacuation time estimates, and the time at which Road Crews should be dispatched to their field locations. I.F. 229, 233 n.164, 235-36, 239. None of these issues were re-opened by Exercise events since no actual evacuation occurred during the Exercise.
While these reasons suffice by themselves to justify rejection of Interveners' findings, several additional matters bear brief comment. On Contention EX 41.A, In-tervenors ask the Board to find a fundamental flaw in the Plan concerning the mobili-zation of Road Crews. Their request is premised on (1) their own choice of time inter-vals at which to judge the progress of mobilization, (2) an assertion that all 12 Road Crews are immediately needed at the start of the evacuation, and (3) an unsupported claim that accidents are more likely to occur early in the evacuation process again requiring the immediate availability of all Road Crews. I.F. 222, 226 n.157, 221 n.152.
As with their proposed findings on Contention EX 40, Interveners attempt to di-vide the mobilization process into steps of their own choosing and then to create arbi-trary standards for those stem. In the PID, the prior Licensing Board accepted that LERO field workers could be substantially mobilized within approximately three hours of their initial callout. PID at 723.EI The Board should reject, as baseless, (footnote continued)
Road Crews took " substantial time" to reach their field locations, Interveners offer the single example of two Road Crews having to go to Brentwood to obtain trucks af ter leaving the Sta";ing Area); Response to I.F. 240 (while Interveners base a significant part of their arfument on an interpretation of Plan, App. A at V-2, that phrase is irrel-evant since it re:lates to Traffic Guides and not Road Crews); Response to I.F. 288 n.200 (Interveners' fccus on whether the cargo of the overturned fuel truck was " gasoline" or "f ue1011").
M/ LILCO discusses LERO's compliance with that standard in its proposed findings.
L.F.196.
I Interveners' invitation to create a new set of intermediate standards.
Interveners' assertion that all 12 Road Crews must be in the field immediately af ter an evacuation order is based on a wooden reading of the LILCO Plan. See I.F. 237.
Interveners never directly address LILCO's argument that because the LILCO Plan contains an oversupply of Road Crews, public health and safety would not have been af-fected by the somewhat slow mobilization of a small group of Road Crew members.EI As a result, they llave offered the Board no principled basis for finding a fundamental flaw.
Finally, Interveners' claim that the likely occurrence of early accidents requires the early dispatch of Road Crews is a planning issue that is unrelated to Exercise events. See Response to I.F. 221 n.152.
In their discussion of Contention EX 41.B, Interveners seek to create the impres-sion that multiple problems occurred in responding to the two roadway impediments.
They do this by defining the " problems" in a manner which allows them to count over and over again the same root cause. For example,it has been accepted by LILCO's wit- l l nesses that the performance of the Evacuation Route Coordinator led to some delays in various aspects of LERO's response to the two impediments. But Interveners use the Evacuation Route Coordinator's delay to argue that other LERO personnel did not re-spond in a timely or appropriate fashion.E Thus, Interveners' findings are tainted by
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R/ In I.F. 235 and 236, Interveners attempt to respond to this issue not by identi-fying why the effect of public health and safety would rise to the level of a fundamen- )
tal flaw but by seeking to relltigate the question of how many accidents are likely to q occur during an evacuation of the Shoreham EPZ. This approach is precluded by res j judicata. '
M/ See, e&, I.F. 289 (The one hour and 32 minute delay in contacting the fire de-partment is primarily attributable to the actions of the Evacuation Route Coordinator, not the Evacuation Coordinator, who ordered the call to be made approximately 10 minutes af ter he began dealing with the fuel truck impediment (see L.F. 204, 212)); I.F.
273 (A Road Crew was dispatched to the gravel truck impediment almost immediately (footnote continued) i l
multiple counting.
Interveners also attempt to dismiss with scant discussion the impact of FEMA's method of inputting and evaluating the impediment free play messages. See I.F. 253, 270. The record does not support Interveners' arguments. FEMA witnesses agreed that the manner in which the impediment messages were inserted and evaluated contributed to the delays in LERO's response. They acknowledged that the FEMA evaluator was not at the scene of the gravel truck impediment but some distance away where he could not be readily seen. L.F. 235; see also N.F. 219. They also recognized that problems were caused by FEMA's failure to provide inputs to bus operations personnel in the field.
L.F. 235. As a result, FEMA acknowledged that in future exerclSes it would reevaluate l "in great detail" how impediment messages were input. Response to I.F. 253; L.F. 235.
Because Interveners' findings make no allowance for FEMA's contribution to the delays in LERO's response to the roadway impediments, their findings consistently overstate the severity of LERO's inadequacies.
Interveners spend 16 pages of their proposed findings discussing the relative merits of the rerouting schemes used by LERO on the day of the Exercise and those of-fered by the Suffolk County witnesses in their written testimony. There is no reason (footnote contirued) af ter the Route Spotter reported back to the EOC (L.F. 202); the 46-minute delay noted by Interveners was the time taken by the Evacuation Route Coordinator to verify the accident); LF. 296 (The finding appears to fault the entire LERO organization for not having made any response to the fuel truck impediment before 12:13; the inactivity prior to that time was the result of the Evacuation Route Coordinator not notifying his co-workers or superiors of the fuel truck impediment. (L.F. 203, 212)).
20/ Interveners' claim that its witnesses were "especially well qualified" and that their testimony was entitled to " greater weight" than that of LILCO's witnesses, I.F.
216, was not borne out in general, see Response to I.F. 216, and more particularly, on the issue of the comparable worth of the rerouting schemes. The ability to develop and assess effective rerouting schemes during a Shoreham radiological emergency entails a proper understanding of traffic conditions during an evacuation, a firm command of the (footnote continued)
for the Board to decide the many issues raised in those findings. In those findings, In-I' tervenors no longer argue that a given rerouting scheme was unique or that the ones chosen by LERO were wrong. Nor do they suggest that the set of rerouting schemes of-fered by Suffolk County's witnesses would have had a significantly different effect on i public health and safety. Indeed, if anything, the record demonstrates the opposite.
See L.F. 232. Thus, the arguments on the appropriateness of given rerouting schemes 1
are unlikely to have any bearing on the ultimate question of whether LERO's response l l
to the two roadway impediments revealed a fundamental flaw in the LILCO Plan. I Finally, when Interveners do focus on the effects of LERO's performance on pub-lie health and rafety, the focus is on a small group of individuals trapped behind the im- ;
pediments. They do not focus on the broader effects on the EPZ population which the previous Licensing Board found was the appropriate unit of analysis. S_ee PID at 807; Response to I.F. 319-25. Since LERO implemented rerouting schemes promptly af ter the Evacuation Coordinator was made aware of the impediments, appropriate actions were taken to protect the health and safety of this larger group.
In their findings on Contention EX 22.I (I.F. 332-36), Interveners offer little basis for their claim that the Exercise did not pose a sufficiently large number of accidents for response by LERO. As LILCO's findings note, the prior Licensing Board found that on average four accidents would be expected to occur during an evacuation of the en- l 1
tire Shoreham EPZ and that not all of these accidents would require tow truck (footnote continued)
Plan's evacuation routes and traffic control strategies, and a thorough knowledge of the effect of rerouting on evacuation time estimates. Throughout the hearing, Interveners' witnesses repeatedly demonstrated that they lacked a thorough understanding of evacu-ation conditions. For instance, the witnesses relied solely on their experience with traffic conditions under normal circumstances for their " expertise" and admitted having never done their own evacuation time estimates or having a great familiarity .
with predicted traffic on given evacuation routes. Response to I.F. 317, 318 n.223, 318 n.224.
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assistance. L.F. 245. In an effort to have this Board conclude otherwise, Interveners presented accident statistics from Suffolk County for a period extending from one week ,
before to one week af ter the Shoreham Exercise. As LILCO and FEMA witnesses testified, these new Suffolk County accident statistics confirm that FEMA's test was reasonable and if anything, an overtesting of LERO's response capabilities. L.F. 245; FEMA EX Exh. 5 at 20. Interveners' proposed findings ignore this testimony and selec-tively misquote Mr. Lieberman's testimony, which was that during the Exercise only one reported accident would have required tow truck assistance. Response to I.F. 333.
Interveners' further arguments about the timing of accidents and their relative proxim-ity to one another are planning issues that should not be decided (or re-decided) in this proceeding.
Finally, Interveners' use of post-Eyercise drill reports to criticize the effec-tiveness of Plan changes made subsequent to the Exercise should be rejected because of their selective use of negative comments without any attempt to put those comments in context. See Response to I.F. 342,343 n.233,344.
1 IV. BACKUP ROUTE ALERT NOTIFICATION (EX 34) j
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The issue in Contention EX 34 is a legal question - whether the regulations re-I quire discretionary backup notification by Route Alert Drivers to be completed within 45 minutes.
The facts are simple and are not in dispute. During the Exercise, the failure of I three sirens was simulated through a free-play message. One Route Alert Driver was 1
dispatched from each Staging Area to cover the siren area. All three Route Alert Driv-ers took longer than 45 minutes to complete their routes. L.F. 249.
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Interveners have taken the position in their findings that NUREG-0654 requires that, within 45 minutes of initial siren notification, backup route alerting must be com-pleted. LF. 353. This represents a departure from their testimony, which was inconsis-tent as to whether completion of backup alert notification within 45 minutes was a reg-ulatory requirement or a recommendation. See L.F. 247. In Interveners' view, it will take substantially longer than 45 minutes to complete backup route alerting, particular-ly when one considers that the areas of siren failure must first be identified through a survey of the electrical circuits or a telephone survey by Marketing Evaluations, Inc.
I.F. 366. Interveners now maintain that the failure to complete discretionary backup route alerting within 45 minutes violates a regulatory requirement and demonstrates a fundamental flaw in the Plan. I.F. 368.
Generally, the Staff and LILCO agree in their interpretation of the regulations and guidance. They concur that there is no time limit for backup route alerting and l therefore conclude that no preclusion of reasonable assurance could be based on the amount of time taken to complete route alerting. L.F. 253; N.F. 239,248. This is par-ticularly true in LILCO's view because the regulations and guidelines do not require any l
backup notification system. See PID at 753-69 ("If no such (backup] procedures are needed, a fortiori, no standard time limit need be met"); Kansas Gas & Electric Co.
(Wolf Creek Generadng Station, Unit 1), LBP-84-26, 20 NRC 53, 67 (1984), aff'd, ALAB-798, 21 NRC 357 (1985). An additional element of the Staff's position, however
- that while there is no time limitation on completion of backup route alerting, backup route alerting is required to be in place, N.F. 239, - is flatly refuted by the relevant case law precedents and the law of this case. Id.
LILCO's view, which is supported in its ultimate conclusion by the Staff, should be adopted by the Board. NUREG-0654 and subsequent regulatory guidance make clear that there is no "hard and fast time requirement for completing the backup route
alerting process" (see L.F. 252; FEMA EX Exh. 4 at I-5) and that 45 minutes is an optimal goal or " suggested objective" but that many variables might affect the reason-ableness of the time limit. L.F. 252-53, N.F. 246-47.
V. MOBILIZATION OF TRAFFIC GUIDES (EX 40.A. B. E)
The parties' proposed findings offer the Board three alternatives for resolving Contention EX 40. These differing alternatives arise not from a material dispute about the factual events that occurred during the Exercise but from a dispute over whether those facts indicate a fundamental flaw in the LILCO Plan. Specifically, the parties offer widely varying analyses for deciding whether mobilization delays would have had sufficiently significant effects on public health and safety to warrant the finding that the Exercise revealed a fundamental flaw in the LILCO Plan.
NRC Staff's Findings LILCO's and the NRC Staff's findings proceed, in large part, along the same path. Both recognize that the important focus for judging the timeliness of the mobill- l 1
j zation of Traffic Guides is the time that Guides arrived at their control posts, not some !
t l arbitrary collection of points before that time. L.F. 261-64; N.F.127. They also agree that the PID offers two guidelines for assessing the timeliness of mobilization: (1) l l
LERO field workers, including Traffic Guides, could be substantially mobilized in about three hours from their initial notification, and (2) the modeling work for a " controlled" ,
i evacuation assumes that Traffic Guides will be in place when congestion begins, ap-proximately one hour af ter an evacuation recommendation. L.F. 258; Response to I.F.
370 n.255, 394; N.F.124-25. They further concur that even at the point when conges-i tion begins to occur, it is not necessary that every Traffic Guide to be in place so long as the " critical" TCPS are manned. L.F. 258; N.F.128. Each concludes that on the day of the Exercise mobilization at the Patchogue Staging Area met these guidelines, while I
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mobilization of Traffic Guides at the Port Jefferson and Riverhead Staging Areas was not completed within the one- and three-hour limits. L.F. 267, 268, 274; N.F.129-31.
At that point, the two sets of findings diverge. LILCO proceeds to assess the ef-fects the delays at Port Jefferson and Riverhead would have had on total evacuation times - a necessary translation to assess the magnitude and significance of the effect on public health and safety. L.F. 270, 275. On the other hand, the Staff findings en-courage the Board to avoid any inquiry on the effect of the mobilization delays on total evacuation times on the misguided assumption that LILCO is inviting the Board to con-sider the " immateriality" argument that is pending before the OL-3 Board. N .F. 132, n.11. The Staff would have the Board decide that since mobilization extended beyond one-hour af ter the evacuation order, "LILCO did not demonstrate reasonable assurance l that its Plan can and will be implemented in the event of an emergency." N.F. 132 (emphasis added).
The difference in LILCO's and the Staff's conclusions rests, in part, on the defi-nition each party employs to define " fundamental flaw." LILCO's view is that a funda-mental flaw must be demonstrated in the written plan; the Staff would find a funda-mental flaw either in the written plan or in the implementation of the plan. Those issues are discussed in section II.B of the Introduction above and will not be repeated here. In addition, the Staff findings misapprehend both the " immateriality" argument 1
and the argument LILCO has forwarded on Contention EX 40. The " immateriality" ar-gument offered by LILCO in the earlier Plan litigation contended that the deployment of any Traffic Guides was not required under NRC regulations since no limit has been set for an acceptable evacuation time. In addition, LILCO argued that the one and one-half hour difference between a '* controlled" and " uncontrolled" evacuation would not have a " material" effect on public health and safety, and hence, a traffic control plan was not a prerequisite for acceptance of the LILCO Plan. See PID at 913-19. Here,
however, LILCO has advanced a different argument. LILCO is n_ot arguing that no Traffic Guides are required, and in fact, agrees that a goal of the Exercise was to dem-onstrate that LERO Traffic Guides could be mobilized in a manner that would allow a
" controlled" evacuation to be achieved. L.F. 258; Response to I.F. 395. Delays at Port Jefferson and Riverhead prevented a clear showing of this ability. The question then becomes whether the delays are of sufficient consequence to disclose a fundamental flaw. LILCO has argued that an extension of, at most,19 minutes in total evacuation times is not so significant in terms of public health and safety to warrant the finding of a fundamental flaw. L.F. 269-70, 276.
The PID supports LILCO's position. There, the Board recognized that while the evacuation time estimates for a " controlled" evacuation were " premised on near optimal distribution of traffic in the network and full performance of traffic guides,"
those estimates "are not highly sensitive to moderate deviations from optimal perfor-mance." PID at 808. The Board also found that an uncertainty band of plus-or-minus 30 minutes surrounded the evacuation time estimates in the LILCO Plan. PID at 792. It accepted those estimates along with their uncertainty band. PID at 807-09. During the litigation of Contention EX 40, LILCO demonstrated that the mobilization delays during the Exercise would have extended evacuation times by no more than 19 minutes - an amount well within tne uncertainty band of the accepted estimates. As a result, the effect on public health and safety would not have been of such significance as to war-i rant a " deficiency" from FEMA, or more importantly, the finding of a fundamental flaw in this proceeding.UI g/ While LILCO generally has the highest regard for the competence of the FEMA witnesses, on the issue of the effect of mobilization delays on total evacuation times the witnesses' competence is suspect. The review of the evacuation time estimate por- >
tions of emergency plans is typically performed not by FEMA but by a traffic engineer-ing consultant retained by the NRC. Such was the case in this proceeding. See, e&,
(footnote continued)
I
Interveners' Findings
.. i Interveners offer the Board a profusion of bases for concluding that the LILCO I
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Plan is fundamentally flawed regarding the mobilization of Traffic Guides. None of these bases withstand scrutiny.
Interveners begin by cleaving the mobilization process into various steps " call-out," " dispatch" and " deployment" - which they define to include the time when the 1 i
last Traffic Guide has completed the given step. LF. 370 n.255. Then, without j l
articulating a standard for judging the timeliness of the completion of these steps, they l l) ask the Board to find that the completion of given steps took "too long" or was "too I
slow." I.F. 385, 392, 410; Response to I.F. 370 n.255. This approach is infirm because it {
involves standards of Interveners' own making, which are never tied to LILCO's Plan or to public health and safety. Nor is it supported by Interveners' own witnesses. While this approach was first offered in Intervenor's prefiled testimony on Contention EX 40, 1
during cross-examination Interveners' witnesses retreated from that testimony by declining to provide precise definitions for the given steps, by f ailing to identify a stan-dard by which each could be judged, and then, by acknowledging that the important question was whether the Traffic Guides would be at their posts when needed. t Tr. 2185-92, 2212-15 (McGuire, Michel, Roberts). In addition, by defining the steps as ending when the last Traffic Guide completes that task, Interveners offer the Board ]
1 only a thinly veiled attempt to revisit an issue they tried and lost in the earlier Plan j (footnote continued) l PID at 782-84 (NRC witness Urbanik testified on evacuation time estimates; FEMA wit- )'
ness McIntire presented evidence on the evacuation shadow phenomenon). In this phase of the proceeding, however, neither FEM A's witness panel nor any consultants to it dis-closed by the record performed any expert traffic analysis. LILCO believes that in i finding a " deficiency" concerning the mobilization of Traffic Guides, FEMA failed to )
conduct the type of analysis needed to classify properly the delay in terms of its effect l on public health and safety. j l
I f
l l litigation. There, Interveners urged that each step in the mobilization process was a discrete task that had to be fully completed before the next step could be started. The !
Board rejected that argument and agreed with LILCO that the steps in the mobilization process could occur simultaneously. PID at 722, 723. Accordingly, the Board should reject Interveners' attempt to use the timeliness of various self-defined mobilization steps to determine whether a fundamental flaw was revealed by the Exercise.
Interveners next argue that mobilization was untimely because not all Traffic !
Guides were at their posts either when the first voluntary evacuees would have been on the road or when the evacuation recommendation was first broadcast. I.F. 400. As l both LILCO's and the Staff's findings note, this is nothing more than an attempt to relltigate a Plan issue that was decided adversely to Interveners. L.F. 263; N.F.133.
l l Since the Exercise did not include public evacuation, there is no new factual basis for 1 )
ravisiting this earlier conclusion. l l
As a slight twist on this argument, Interveners try to seize on the statement in I l
Appendix A to the LILCO Plan that "{r]equired personnel to control traffic are mobi- )
I lized and in place at the outset of evacuation process or soon thereaf ter" to create a new " requirement" for judging mobilization timeliness. I.F. 394. Their argument rests l I
on an interpretation of the phrase " outset of the evacuation process" that is entirely of their own making and ignores the interpretation of that phrase accepted during the earlier planning litigation and again restated by Mr. Lieberman, the author of the phrase, in this proceeding. The provision in question is one of the enumerated assump-tions that was made in calculating the evacuation time estimates. That assumption has been explained and accepted as being that Traffic Guides would be in place when con-gestion begins to occur in the EPZ, approximately one hour af ter the evacuation recom- j l
mendation. PID at 720; Response to I.F. 394; LILCO Test. Cont. EX 40, ff. Tr.1548, at 7-8. Thus, rather than being a distinct test, the language cited from Appendix A is j l
merely the one-hour criterion that is discussed by all parties. j i
Interveners also encourage the Board to apply mechanically the one- and three-hour mobilization guidelines found in the PID to find that the LILCO Plan is fundamen-tally flawed. In large measure, this argument is the same as the one made by the Staff and addressed above. Like the Staff, Interveners fall to address the question of how the mobilization delays affected public health and safety - the pertinent inquiry in deciding whether to classify an Exercise problem as a fundamental flaw. Instead, Inter-venors criticize LILCO's " post hoc" designation of " critical" traffic control points and challenge LILCO's conclusion that the delay in mobilization would result in a linear ef-feet on the evacuation times estimates. I.F. 414, 417-18. Neither of these arguments t has merit. The concept that not all traffic control points have the same effect on evacuation times was resolved during the prior proceeding. There, Messrs. Weismantle !
and Lieberman presented written testimony which stated:
In addition, Figure 8.3 of Appendix A (also Attachment 7 to OPIP 3.6.3) prioritizes the sequence in which traffic control posts are manned. The reason for this prioritization is to en-sure that the traffic control posts, and special traffic control J strategies associated with those posts, and special traffic con- j trol strategies associated with those posts, having the J greatest effect on evacuation times are manned, or imple-mented, first. i l
Cordaro, e_t al. (Contention 27), ff. Tr. 7043, at 26. Thus, LILCO has not engaged in l
post hoc rationalization, but simply has labeled these posts as " critical" for the first )
I time. Interveners' attempt to contest the lir.earity of the delay in total evacuation I times is based not on any factual evidence, but rather on a selective misquoting of the Board's questions, on a first-time use of the Highway Capacity Manual, and on reliance J l
on Interveners' witnesses who admitted that they had never performed, or by training l 1
were qualified to perform, an evacuation time estimate. Response to I.F. 417, 417 n.285,418. Hence, this argument is entitled to no weight.
Interveners have also supplied the Board with a litany of traffic control points i
and traffic strategies that they claim would be adversely affected by an " untimely" l
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i mobilization of Traffic Guides. See I.F. 420-39. First, the Board admitted the written testimony that serves as the basis for these findings only as " background" information. ,
i Response to I.F. 426,429. Second, Interveners made similar arguments about the diffi- {
l culty of implementing certain traffic control strategies in the prior planning litigation. l See Roberts, e_t al. (Contentions 65 and 23.H), ff. Tr. 2260, at 19-28. There, the Board rejected those arguments, finding that "LILCO has employed a reasonable planning basis for its traffic control strategies and route recommendations." PID at 794. The Board should reject Interveners' invitation to revisit those planning issues in this proceeding.
Finally, Interveners' use of post-Exercise drill reports to criticize the effec-tiveness of Plan changes made subsequent to the Exercise should be rejected because of i
their selective use of negative comments without any attempt to put those comments in context. See Response to I.F. 444-45, 449-50; see also discussion in section X below. )
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! For these reasons, the Board should reject the Interveners' proposed findings on 1
Contention EX 40 in their entirety, and reject the Staff's findings to the extent they conclude that a " fundamental flaw" was revealed by the Exercise.
VI. WIND SHIFT (EX 36)
Interveners continue to maintain that LERO failed to adequately evaluate pro-tective action recommendations because, af ter 10:36 a.m. on the day of the Exercise, i LERO dl(! not perform a computer calculation specifically comparing a projected shel-ter dose and a projected evacuation dose. S_ee I.F. 454, 468, 471. Interveners' position l ignores the record, for two reasons. ,
1 First, Interveners fail to take into account the f act that OPIP 3.6.1 provides for l making protective actions based both on projected radiation dose and plant conditions. l l
See L.F. 282-84. The LILCO witnesses testified that their decision to recommend evac- l l
uation was based primarily on plant conditions and the likelihood of a long term release.
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I See L.F. 290, 293; Tr. 2563-64 (Kessler). Since sheltering would not have been an ap-propriate protective action given the probable long term release, there was no point in performing an evacuation dose versus shelter dose calculation. Ld.; Tr. 2507-09 (Watts).
I Second, Interveners wrongly suggest that the Radiation Health Coordinator had to perform the computer dose comparison calculation in order to evaluate protective f
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action recommendations. But the record shows that he was regularly informed of plant
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i conditions and radiological and meteorological developments, and that he ran dose pro- {
i jections at the EOC throughout the day. L.F. 285-87, 291, 294; N.F. 254; LILCO Test. l l
Cont. EX 36, ff. Tr, 2364, at 4, 8; Tr. 2405-06, 2413-14, 2446 (Watts). It was not neces-
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sary that he perform that computer calculation, because the plant release rates and I
offsite dose rates following the initial evacuation recommendation were both signifi- j i
cantly above the threshold calling for evacuation. L.F. 294, 296; N.F. 254; Tr. 2446-47, I
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2508-09 (Watts).
Interveners' proposed findings also suggest that LERO personnel wrongly failed l to consider the impact of changing traffic conditions on protective action recommen- !
dations.E ee S I.F. 456, 458, 470. The only evidentiary basis provided by Interveners
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for this finding is several comments made by one of the FEMA EOC evaluators on his )
i Exercise critique form. Interveners ask this Board to find that these comments should l
have been included in the FEMA Report, and to rely on the FEMA evaluator's comments rather than the testimony of the FEMA witnesses. See I.F. 470. I 1
There is no basis for this Board to find that the evaluator's comments should I have been included in the FEMA Report. First, some of the c imments in question were l
l 22/ LILCO and the NRC Staff took the position during the hearings that the issue of whether LERO personnel considered the impact of traffic conditions on protective ac-tion recommendations was beyond the scope of Contention EX 36. See Tr. 2350-58 i (Falzone, Johnson). LILCO continues to take the position that this issue is beyond the !
scope of Contention EX 36.
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crossed out on the critique formEI by the evaluator himself af ter he met with Exercise team leaders and other FEMA personnel af ter the Exercise. S_e_e_ S.C. EX Exh.102; Tr.
7960-62 (Baldwin), 7963-68 (Keller), 7968-69 (Kowieski). Second, the evaluator did not testify, and there was no opportunity for him to explain the bases for his comments.
Finally, Interveners are essentially asking that this Board intrude on and override deci-sions made during the deliberative process involved in preparing the FEMA Report. E That is not an appropriate role for this Board, and the Board should decline the invita-tion.
Interveners' position also reflects a misunderstanding of the LERO Director's de-cisionmaking processW and conflicts with evidence in the record demonstrating that LERO considered traffic issues when evaluating protective action recommendations.
The Director of Local Response testified that the Evacuation Coordinator regularly provided information regarding traffic conditions at the staff meetings and that the Di-rector considered that information when making decisions. Tr. 2604 (Kessler). When personnel at the EOC learned of the traffic impediments, the Director of Local Re-sponse, the Manager of Local Response, and the Radiation Health Coordinator discussed the impact of the impediments on protective action recommendations. Tr. 2579 2_3/ The following statements were stricken from the critique form: (1) " Addition-ally, the accident / impediments to evacuation were never reverted back to the accident assessment staff for analysis for dose implications to those which might be stuck. This resulted in people being evacuated through the plume"; and (2) "The Rad. Health Coordinator should be consulted when an impediment to evacuation is encountered."
S_ee S.C. EX Exh.102: Tr. 7969 (Keller).
24/ The Radiation Health Coordinator is only one of several people who provides the Director of Local Response with information to assist in his decisionmaking. See Tr.
2562-63 (Kessler), 7961 (Kowieski). Other LERO personnel, such as the Manager of Local Response, to whom the Evacuation Coordinator reports, provide the Director of Local Response with information regarding traffic conditions. Plan 2.1-2, 2.1-4; Tr.
2394-95 (Weismantle), 7960-65 (Baldwin, Keller, Kowieski). The Director of Local Re-sponse makes his protective action decision af ter meeting with his staff and assimilat-ing all the information, which includes integrating traffic information with dose assess-ment information. S_ee Tr. 2562-63 (Kessler), 7960-65 (Baldwin, Keller, Kowleski).
I (Weismantle), 2594 (Watts, Weismantle). It was LERO's judgment that the evacuation recommendation should not be modified given plant conditions and the limited nature of ;
l the impediments. Ld.
VII. MONITORING AT N ASSAU COLISEUM (EX 22.A. 49)
Availability of Nassau Coliseum The Interveners alleged in Contention EX 22.A that the Nassau Coliseum was the crux of the Exercise. They have not proved that allegation and therefore their conten-tion should be rejected.
The premise of the Interveners' argument is that because the Coliseum became unavailable af ter the Exercise, the Exercise results are invalid. I.F. 474. If one be-11 eves the Interveners, a plan must be exercised every time there is a change in f acility or equipment. But that cannot be so;if it were, every plant in the country would nec-essarily be engaged in continuous exercises. The Interveners' proposed findings on this I issu? therefore ignore the predictive nature of emergency planning findings.
In addition, the Interveners' findings ignore the extensive parallel proceeding be-j fore the OL-3 Licensing Board on the relocation centers. The Interveners would have this Board find a " fundamental flaw" because LILCO has not designated new reception centers, but no mention is made in the Interveners' findings that LILCO has in fact done so and that the adequacy of those centers is now under consideration.
Moreover, as pointed out in the Staff's findings (N.F. 387-93), the Interveners focus on the wrong issue in their proposed findings. The Contention was admitted to allow them the opportunity to support their assertion that there is something unique about the Nassau Coliseum so that its removal from the LILCO Plan constituted a fun-damental flaw in the Plan. See Prehearing Conference Order, Oct. 3,1986, at 14. The Interveners did not carry their burden cn this issue. In their findings, the Interveners
have briefed the issue of whether this Board can find reasonable assurance "with re-spect to unidentified and untested facilities having potentially very different charac-t::ristics, facilities and locations." I.F. 477 at 333. But that precise issue is pending be-fore the 03 Licensing Board.
LILCO agrees with the Staff that Contention EX 22.A should be rejected.
Timely Monitoring of Evacuees l
In Contention EX 49, there remain among the parties two areas of dispute: (1) j l
how many of the more than 100 persons monitored on the day of the Exercise by LERO were monitored in a time greater than the 90 seconds per person planned for and (2) whether the fact that FEMA did not evaluate the alternate backup method of moni- l l
1 toring at the Coliseum identifies a fundamental flaw in the LILCO Plan.
As to the number of people LERO took longer than 90 seconds to monitor during 1
the Exercise, the record is clear that there were only three: the FEMA evaluators. l The Intervenor testimony to the contrary is based on the Intervenor witnesses' reading of the FEMA Report, and not any direct knowledge from the day of the Exercise. l Harris and Mayer, ff. Tr. 2992, at 44. Based on that reading, Interveners' witnesses as-sert that "many times" LERO took four to five minutes to monitor each person at the Coliseum. I_d.
There is no basis in the record for that conclusion. LILCO witnesses, FEMA witnesses, and the FEMA Report all support the conclusion that, generally, mon-itoring took place within the targeted 90 seconds per person. LILCO Test. Cont.
EX 22.A and 49, ff. Tr. 2690, at 9; Tr. 2778 (Watts); Tr. 7982-85, 7729 (Keller). There-fore, the magnitude of the monitoring time problem clearly falls within a " minor ad hoc I problem on the day of the exercise" and does not constitute a fundamental flaw. LILCO agrees with the NRC Staff that the Interveners' proposed findings on Contention EX 49.A should therefore be rejected.
1
As to EX 49.B. the Ir.tervenors propose the novel theory that, because FEMA did not review at the Exercise the backup method for monitoring, and because FEMA re-viewed the backup monitoring scheme af ter the Exercise and found it deficient for use as a primary method, the Interveners have identified a fundamental flaw in the LILCO Plan. I.F. 505-506. Interveners also complain of the fact that INPO and other entities relied upon by LERO did not actually participate in monitoring during the Exercise, I.F.
507, although they take the position in their findings that the Board need not " resolve this dispute about the availability of additional personnel, however, in light of (the In-tervenors' proposed] finding above (I.F. 505-506] concerning LILCO's alternate moni-toring procedure." I.F. 507.
Once again, the Interveners have failed to connect the developed record to any fundamental flaw in the LILCO Plan. Their own witnesses could cite no reason to be-lieve that INPO, DOE, or any of the other entitites relied upon in the LILCO Plan would not be willing or able to provide the promised personnel, Tr. 3035-36 (Harris, Mayer),
and there is no explanation in the Interveners' proposed findings of why the backup monitoring method is flawed simply because FEMA chose not to observe it during the Exercise. S__ee I.F. 505-506. FEMA testified that the implementation of the alternate procedure was not an Exercise objective and therefore the procedure was not evalu-ated. FEMA EX Exh. 5 at 30.
VIII. REGISTERING, MONITORING, AND DECONTAMINATING EVACUEES FROM SPECIAL FACILITIES (EX 47)
Interveners' allegations in Contention EX 47 regarding the lack of special facility reception centers are unrelated to the Exercise and outside the scope of this procec<!-
ing. A review of the Interveners' proposed findings on Contention EX 47 underscores this point.
l i
i
Although the Interveners argue that the lack of reception centers for special fa-cilities was revealed by the Exercise (I.F. 514), it is clearly stated in the LILCO Plan j and in the Licer. sing Board's Partial Initial Decision on that Plan that reception centers are to be arranged, see PID at 840,860. The February 13,1986 Shoreham Exercise had nothing whatsoever to do with special f acility reception centers.
In addition, the parties are in agreement that special facility reception centers were not a part of any exercise objective. See L.F. 320-21; N.F. 380; I.F. 519.
Interveners have identified no exercise-related issue in Contention EX 47. They l
have merely used the admission of this contention to air once again their opinions about the level of care required for special facility evacuees. That is a planning matter that was previously litigated at length in this proceeding and should not be revisited by this Board. LILCO agrees with the NRC Staff that Contention EX 47 should be rejected.
IX. ADEQUACY OF PUBLIC INFORMATION (EX 38: 39: 40.C: 22.F: 44: 49.C) ,
As to Contentions EX 38 and 39, concerning public information during the February 13 Exercise, there are two basic disagreements between the Staff and LILCO on the one hand and the Interveners on the other: First, what is the importance of the press in emergency planning, and second, what is the import of the public opinion polls and focus group surveys offered into evidence by the Interveners in support of their shadow phenomenon theory.
ENC Activities The Interveners spend a great deal of time in their testimony and their findings discussing at length the ills that would be suffered by the press in an emergency if the LILCO Plan remains as it was (and if the LERO players perform as they did) the day of I the Exercise. I.F. 541-95. This focus on the press is understandable given the makeup of the Interveners' witness panel: Their bent is on press matters and poll-taking, not 4
cmergency planning for nuclear power plants. I.F. 537-38. It is an inescapable f act, however, that the emergency planning regulations emphasize timely, consistent infor- :
mation to the public, not to the press. L.F. 334-39; N.F. 264. It is the public that might be in danger, and it is the public, therefore, that must be notified. LILCO, the NRC Staff, and FEMA agree on this point (L.F. 334, 338; N.F. 264), and it is implicit in the discussion on public information planning included in the Licensing Board's Partial Ini-tial Decision on the LILCO emergency plan for Shoreham, PID at 655-70. This is not to ,
say that the press cannot play an important role in any emergency information program or that the press would not play a highly visible role during an emergency. L.F. 334-35, i
l 340; N.F. 268; I.F. 543. That importance is recognized by the requirement that the 11-censee set up an Emergency News Center to hold press briefings and to disseminate in-l formation. 10 C.F.R. S 50.47(b)(5) and App. E S IV.D.3; NUREG-0654 SS II.E.3 and 5-7, App. 3; I.F. 534. But the difficulties that are contemplated by the Interveners in their l contentions, that would persist in any emergency response in dealing with the press, f
i and that came out at the Shoreham Exercise, do not and cannot indicate a fundamental flaw in the LILCO Plan.
Once the proper role of the press is placed in perspective, the Interveners' con-tentions and complaints in their proposed findings become nothing more than the stringing together of selective trivia to create the illusion of a major problem where none exists. The Interveners' quibbling over the timing of and information given at press briefings at the ENC (I.F. 573-93), and their speculation about reporter hostility as a result of what was, in their view, an untimely opening of the ENC (1.F. 544-52), does not reveal a fundamental flaw in the Plan. The parade of horrors they conjure up about the possible consequences of dealing with reporters in an emergency (I.F. 547,549,558, 591) simply describes the difficulties inherent in the public information process. In any event, the issues they raise about reporters always wanting additional information and
i never being satisfied are generic problems inherent in any interaction with the press, and therefore are not issues that were identified as the result of any Exercise activi-ties.
As to the untimely distribution of hard copy messages and news releases com-plained of in the Interveners' findings, I.F. 560-69-, that issue fails to rise to the level of a fundamental flaw. First, it would not have affected the public health and safety had it occurred during an emergency beer.use the people in the press center would have had that information 4hrough other sources. L.F. 356, 359; N.F. 285-86. Second, it is an easily correctable problem, and in f act, contrary to Interveners' assertions in the pro-posed findings (I.F. 570-72), has been corrected by the addition of copying machines to the ENC and the limitation of the number of pages of material required to be copied.
L.F. 357-58; N.F. 283, 286.
l Likewise, the Interveners' petty complaints about the rumor control responses, repeated in detail in their findings (I.F. 596-618), do not amount to a fundamental flaw in the Plan. The difficulties stemmed in the main from a copying problem and that has teen fixed. L.F. 389-95; N.F. 331-35.
Consequently, there is nothing raised in the Interveners' findings about the ENC performance on the day of the Exercise that suggests a fundamental flaw in the LILCO Plan. Interveners' contentions should be rejected on that point.
Shadow Phenomenon As to shadow phenomenon, that issue has now been litigated three times in this licensing proceeding alone -in the planning litigation, PID at 655-71, in the relocation center remand hearings, and in the Exercise litigation. It is time that this Board put the issue to rest.
First, the Interveners argue in their findings that the text of the EBS messages used on the day of the Exercise would result in "early and substantial voluntary
3 cvacuation." LF. at 455; see I.F. 631-46. They cite their witnesses' conclusions that the EBS messages are vague about health effects, radiation releases, and emergency events.
I.F. 632. They ask this Board to conclude that the LILCO Plan EBS messages do not i meet the standard for good emergency information that was propounded by Dr. Mileti
(
in the planning litigation and adopted by this Board. See PID at 655-70,689-91. I The Interveners' notion that the text of the Exercise EBS messages does not d comport to the standards set out in the Partial Initial Decision is an interesting one, j l
given that these are the same messages that have been in the LILCO Plan for years, j i
and that were litigated during the planning phase of this proceeding. See PID at 655-71; LILCO Plan at OPIP 3.8.2 (Sample EBS Messages). The Interveners' Exercise Con-tentions do not raise the issue of whether the EBS messager _as written are adequate, 1 l
except as to the description of Traffic Guides on evacuation routes which the Interve-( nors alleged in Contentions EX 42.F and 40.C were false given the Exercise events. See Contentions EX 38, 39, 44, 22.F 42, 49.C. They alleged that the EBS messages were i
" conflicting and confusing" in the way the copies disseminated at the ENC were i
marked-up and when compared with other public information disseminated the day of j i
the Exercise, see Contention EX 38.F, but they did not take issue with the language of )
l the EBS messages as they now do in their proposed findings. I.F. 631-46. But the Exer-1 cise activities shed no light upon, for example, the risk information contained in the EBS messages. See I.F. 634-36. The Interveners are merely attempting to litigate anew i the text of the sample EBS messages that have been available to them for years. This is clearly an impermissible attempt to expand the proceeding.
In addition, the Interveners' witnesses are not qualified to opine on the adequacy of emergency information, and their testimony about the adequacy of the EBS messages is entitled to no weight. Their witness panel consisted of two news reporters, a l
sociologist who earns his living taking polls, an environmental psychologist, and a
cognitive psychologist. I.F. 537-38. None of the Interveners' witnesses are emergency planners or experts in emergency response. Evans et al., ff. Tr. 3786, at Att.1-5. This is in stark contrast to LILCO's witness panel, which included two professional emergen-cy planners and a sociologist whose specialty is the study of emergency response. See I.F. 538-40.
Even if one were to accept Interveners' criticisms of the EBS messages, they do not singly or in aggregate rise to the level of a fundamental flaw. The Interveners did not establish that the changes they seek in the messages would improve the messages.
They did not establish that the messages as written or read during the Exercise would have adversely affected the public, although they tried to do so with polls and focus group surveys. As a result, their findings are nothing more than speculation.
l l Second, the Interveners' polls and focus group surveys were admitted by the Li-censing Board for the sole purpose of showing whether the Emergency Broadcast Sys-t m messages were somehow unclear, incomprehensible, or inconsistent. L.F. 339. But {
l the Interveners' own witness admitted that his polls could not be used for that purpose, l I
because he had edited and condensed the messages for use in his poll. L.F. 400. The ef- I feet of his editing, for example, was to reduce EBS messages several pages long to one short question. See I.F. 648 n.436. Thus, people responding to the poll were not re-sponding to the EBS mas / ages that were used on the day of the Exercise. They were re-sponding, as they had responded in the past, to surveys based upon a greatly abridged j version of the EBS messages read to them a single time over the telephone. More im-
> portant, as with all the other polls that have been offered into evidence in this pro-ceeding, the information read over the telephone did not - and could not - reflect the i tone and context of an actual radiological emergency. Consequently the responses to it cannot be used to predict future behavior. That much is clear.N 2_5/ While LILCO generally agrees with the NRC Staff's findings on the ENC issues,it disagrees with the proposed finding NJ. 351 regarding the lack of random sampling in (footnote continued)
-5 4-The Interveners argue now in their proposed findings, as they have before, that their opinion polls are reliable indicators of the general magnitude of an evacuation at some future Shoreham emergency:
The most .significant result of the survey is that if an accident such as that postulated in the Exercise were actually to occur and LILCO responded with the EBS messages it used during the Exercise, a massive voluntary evacuation would begin in response....
I.F. 649. They argue that the messages on the survey questionnaire closely approxi-mated messages actually used during the Exercise. I.F. 649,650,655,655 n.422. But at the same time they note that their witness Dr. Cole eliminated material that was in his opinion " unessential, unintelligible or confusing." LF. 655 n.442. This very admission in-validates their evidence. In addition, Dr. Cole is not an emergency planning expert, I.F. 538; his opinion on what is appropriate in an emergency message is entitled to no weight.
The Interveners argue that the Appeal Board has endorsed the use of surveys to predict human behavior, stating that The Appeal Board has held survey data to be valid, relevant, and persuasive evidence concerning how people will act in re- .
sponse to a radiological emergency. _See, eg, Long Island
_ f Lizhting Co. (Shoreham Nuclear Power Station, Unit 1), j ALAB-832, 23 NRC 135,153 (1986); Philadelphia Elec. Co.
(Limerick Generating Station, Units 1 and 2), ALAB-836, 23 I NRC 479, 517-20 (1986); Cincinnati Gas & Elec. Co. (Wm. H. )
Zimmer Nuclear Power Station, Unit No.1), ALAB-727,17 l NRC 760,172 (1983).
]
l I.F. 854 (footnote omitted); see also I.F. 652. This is an overstatement. In the first )
place, the Appeal Board has never ruled that survey data are " persuasive" per se; what (footnote continued) the Cole surveys. This Board has previously found Dr. Cole's methods to be generally I reliable and it is not because of his sampling method that his polls are entitled to no I weight in this proceeding.
l
'is " persuasive" always depends on the record as a whole. It is true, with respect to sur-vays of emergency workers taken to determine the extent of role conflict, that the Ap-peal Board has ruled that such surveys are relevant and should be considered. But the standard for admitting evidence is quite different from the standard for relying on it as a basis for a decision. In particular, Licensing Boards have always been liberal in ad-mitting evidence; that by no means implies that they must be " persuaded" by it. Sec-ond, and perhaps more important, the Appeal Board did not disturb any of the Licensing Board's findings on the reliabill'ty of opinion surveys of the public,N notwithstanding n the fact that those findings were appealed by the Interveners. Nor did the Commission disturb those findings.N ee S ALAB-832,23 NRC 135 (1986); PID at 667,676. Accord-ingly, the Board findings relied upon by LILCO are final agency action and the law of the case.
In their proposed findings, the Interveners summarize their position on the issue of predicting human behavior with polls:
Thus, the Governments maintained that in a real emergency the EBS messages prepared by LILCO during the Exercise would not overcome the public's pre-existing fear of radia-tion, would reduce even further LILCO's already low credibili-ty, would cause the public to ignore LILCO's instructions and PARS, and would result in a substantial voluntary evacuation .
. . . They also presented empirical data, based upon actual Ex-ercise EBS messages, which quantified and confirmed their opinions on how Long Island residents would perceive and re-spond to the LILCO-disseminated emergency information.
2_j/ 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 & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-82-70,16 NRC 756,780 (1982).
2_7/ 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 (Sept.19,1986).
f i
I.F. 628-29. That is precisely what has not been proved by the Interveners, and has been disproved by LILCO. Fear of radiation and attitudes, or whatever it is that Dr.
I Cole's polls are measuring, do appear to be relatively stable, not only on Long Island but 1 i
everywhere. But to infer from that response to polls that behavior in an actual emer-
)
gancy would be similarily unchanging and unchangeable is unfounded.
By the same token, the focus group surveys relied upon by the Interveners in their findings are unreliable. During the three focus group sessions the EBS messages were not always read in their entirety, and they were not repeated. L.F. 401. The moderator of the groups was one of the County's own witnesses, who has testified many times in this proceeding against the opening of the Shoreham plant. Id. He admitted l on cross-examination from the Board that unless one had been at the focus group meet-ings it would be extremely difficult to tell what had been said, by whom, and what im-portance should be placed on it. Ld There is no basis for any conclusions to be drawn based on the focus group surveys.
The Interveners also argue that the scenario of the February 13,1986 Exercise, ,
which simulated LILCO's instructing over 90,000 people to report for radiological moni-toring, somehow proves that greater than 20% of the EPZ might actually be advised to report for monitoring in the future. I.F. 655-71. But a postulated emergency shows nothing about what might happen in a particular emergency, and it tells the Board nothing whatsoever about what an adequate planning base for a real emergency might be. Presumably the Interveners would argue that the planners who developed the sce-nario would not have developed an impossible scenario; that may be true, but all it sug-gests is that more than 20% of the EPZ might need monitoring in some postulated emergency - which everyone concedes. All FEMA exercise scenarios simulate very se-vere accidents; otherwise they :suid not challenge the emergency organizations that are being tested. The Shoreham Exercise was no exception.
l
And the polls offered by the Interveners in support of their arguments on moni-toring shadow are no more valid here than they are in the context of evacuation shad-ow. See I.F. 667. The result of Dr. Cole's editing was to reduce four separate moni-toring advisories, each several pages long, to one short question. See I.F. 667. Finally, the number of people that might need monitoring is the subject of the reception center remand proceeding.
In short, the Interveners failed to demonstrate in any fashion that LILCO was unable to meet the NRC regulations regarding timely, consistent information to the public. The aspects of the LILCO Plan regarding public information received as much scrutiny in the planning litigation as any in the country. LILCO implemented the Plan as written on the day of the Exercise, including the predraf ted EBS messages that were previously litigated in this proceeding. The Interveners' unremarkable conclusion re-garding public information during an emergency appears to be that sometimes it will be a bit difficult. That does not reflect a fundamental flaw in the LILCO Plan.
i X. TRAINING (EX 50)
This section responds to the proposed findings of the Staff and Interveners on training issues asserted to arise from the Shoreham Exercise. Three concepts must be borne in mind in evaluating the submissions of the parties on these issues. First, the pertinent inquiry is not whether examples of deficient performance, whatever their de-gree of seriousness, occurred in specified areas of emergency response in the Shoreham Exercise, but whether those performance difficulties were of such a nature and fre-quency as to cast doubt about the adequacy of the training program for LERO. Second, the type of training problem over which this Board has jurisdiction under Union of Concerned Scientists v. NRC, supra and its implementing progeny is limited to those matters significant enough to disclose " fundamental flaws"N in tile training program 2_8/ The criteria for such a flaw - the existence of problems which are (1) pervasive or systemic, (2) significant enough to prevent reasonable assurance that emergency re-(footnote continued)
l I
which is part of the offsite emergency plan for Shoreham.EI Third, assessment of the quality of a training program on the basis of the perfor-mance of individuals in an exercise is the most inferential and indirect set of judgments a Board is asked to make about exercise performance - indeed, is an entire level of in-l firence further away from the events being evaluated than the other evaluations made.E As a result, conclusions as to the adequacy of training programs on the basis i of exercise performance should be reached only very cautiously, and only upon the basis of the most unequivocal evidence.U/ As is shown below and in LILCO's previous 1
(footnote continued) i 1
sponse would be sufficient to protect the public health and safety, and (3) not readily I correctable - have been analyzed above and will not be repeated here. However, in the context of training, a threshold question must be answered: is a problem training-r lated or is it a failure of selection, procedure, equipment, or randomly deficient per-formance?
29/ Interveners attempt to induce the Board to depart from the " fundamental-flaw" threshold set out in CLI-86-11 as the appropriate scope of review, by citing a statement in the Partial Initial Decision that "the conclusion that the LILCO training program meets the regulatory standards . . . is made subject to confirmation by a finding, to be made by FEMA af ter a graded exercise, that the Plan can be satisfactorily implemented with the training program submitted and that LILCO possesses an adequate number of trained workers," PID at 756. See I.F. 678; see also I.F. 684, 700. This invitation to conduct an open-ended review is, of course, incorrect since the Board's jurisdiction is defined by the Commission's ruling in CLI-86-11.
30/ All exercise appraisals require assembly of recorded information about actual exercise events. Evaluation of the adequacy of performance is performed by comparing that information against prescribed criteria. Judgments of the adequacy (or varying degrees of seriousness of inadequacy) of actual performance in specific areas -
e.g., mobilization, communications - are thus made as a result. A training program cannot be so directly observed. By contrast, the " data" for its evaluation are the judg-ments already made about direct performance areas, and are typically concentrated on those judgments that were negative. As a result, training evaluations involve a more inferential, and hence subjective,' set of conclusions than those in other areas. And second, the data samples on which those conclusions are based tend to be preselected and potentially biased. As a result, any attempt to infer the existence of " fundamental flaws" in a training program from a day's exercise is a significantly less objective en- ]
terprise than an attempt to measure or assess actual performance, and hence any Li-censing Board so engaged ought to be exceedingly cautious about drawing such infer-ences.
3J/ The difficulty of obtaining such evidence is suggested by the f act that FEMA, for instance, does not normally even evaluate training programs as a distinct aspect of ex-ercise performance in Region II.
l
-5 9- .
i filings, the evidence on training is nowhere near clear enough to support a conclusion I
that the LERO training program is " fundamentally flawed."
Staff's and Interveners' Positions The submissions of the Staff and Interveners on this matter present significantly different approaches. Interveners assert that the term " fundamental flaw" with re-spect to a training program should be restricted to " extremely significant problems" in 4
the LERO training program "which relate to whether LILCO's personnel have been or.
could be trained sufficiently under LILCO's existing training program to implement sat- !
isfactorily the LILCO Plan," sgg I.F. 697. They also deny that the ready correctability !
l of a problem is a relevant factor. S_ee I.F. 699. However, Interveners apply their stan- !
L l dard generously to the facts, consider few events to be trivial, include problems with ;
i equipment and procedures as well as performance, and often multiple-count specific problems. This indiscriminate approach is contrary both to Interveners' own restriction of " fundamental flaws" to " extremely significant problems" and to the Union of Concerned Scientists v. NRC definition which excludes " minor or ad hoc problems oc-curring on the exercise day," Union of Concerned Scientists v. NRC,735 F.2d at 1448.
Interveners' findings also contain numerous inaccuracies. These problems are discussed in detail in the accompany tables.N orFthese reasons, as well as others discussed below, the Board should reject Interveners' findings in their entirety.
3_2/ For example, Interveners misstate the testimony of their witnesses who specifi-cally admitted they had no experience or knowledge in some area for which Interveners now present them as experts. Response to I.F. 675 a.458,677 nn.459,460. Interveners' use of evidence beyond the scope'of its admission is misleading: they repeatedly cite i Post-Exercise Assessments admitted only for background and without a sponsoring wit-ness as the basis for proposed findings. Response to I.F. 734-38, 742-46, 748-50, 792. In their proposed findings I.F. 823-27, Interveners also raise minor events for this Board's resolution that could never rise to the level of fundamental flaw. They ask the Board to decide whether failure to notify the FAA or LIRR, extrapolated dose data, confusion between DOE and LILCO field team monitoring data, and secretarial telephone tech-niques demonstrate a fallure of the LERO training program. Response to I.F. 823-27.
The Staff's definition of the " fundamental flaw" standard in the context of I training is similiar to LILCO's. The Staff agrees that for there to be a fundamental ,
l flaw " systemic or pervasive problems" or " errors in performance [ that] fit a pattern" I must be established which raise " substantial doubt as to whether the training program as conceived and implemented by LILCO is adequate to assure that the Plan would be effectively implemented in a real emergency," N.F. 407. The Staff also apparently agrees that equipment problems are distinct from training problems. _Se_e N.F. 477-79.
l The difficulty with Staff's test is not with its formulation but with its applica- i l
tion; the Staff weighs as potential " fundamental flaws" matters relating to plan imple-mentation as well as plan design, and at times neglects any consideration of the extent or pervasiveness of a problem. I
(
Application of three different constructions of the " fundamental flaw" standard I l
obviously produces three different results. Upon review, it is evident that LILCO's I standard is the most well reasoned and, when uniformly applied to each of the Conten-
)
tion subparts, the results indicate that the LERO training program was not fundamen-tally flawed.
Contention EX 50.A and EX 50.E - Training To Respond to Unanticipated and Unrehearsed Events and the Use of Good Judgmen_t_3/ 3
]
l Interveners' artificial category of " unanticipated or unrehearsed events" was de-fined by Intervenor witnesses as events that are not expected or planned for specifical-ly. See L.F. 421. Under that definition, nearly everything that happened during the Exercise had an element of surprise and therefore was an unanticipated or unrehearsed event. L.F. 421; I.F. 849. But even accepting the more limited definition of I
unanticipated and unrehearsed events employed by Interveners and Staff, no j fundamental flaw has been established.
1 3_3/ While LILCO does not adopt the logic or meaning of the contention groupings employed by Interveners and the Staff, LILCO employs their organizational format j solely for purposes of comparing the analyses. !
Both Staff and Interveners discuss the impediments, responses to public inquiries by Rumor Control, and the ENC responses to media inquiries as examples of both unanticipated and unrehearsed events and as incidents in which LERO did not use good judgment. N.F. 422-34; I.F. 854-64. Interveners also raise the Ridge Elementary School free play message and the responses of Traffic Guides to simulated evacuee questions about the location of the Reception Center as unanticipated and unrehearsed events.
See N.F. 420-21; I.F. 854. Interveners claim that each event cited demonstrates a fun-damental flaw. See I.F. 847-48, 861, 864.
With the exception of the impediments, the Staff agrees with LILCO that the ,
cited Exercise events do not indicate any inability to deal with unanticipated and l unrehearsed events.E L.F. 409-13, 418, 420-22; N.F. 430-43, 471. Even as to the im-pediments, the Staff basically agrees with LILCO that the response to the impediments I
was generally appropriate, and takes issue only with the delay experienced in re-sponding to the fuel truck impediment. See N.F. 226-28. The Staff also notes, in ap-parent agreement, that FEMA's finding of a Deficiency and recommendation for addi-tional training were based solely "on the ability of the LERO organization to effectively l
communicate internally." N.F. 428. Thus the Staff's proposed finding of a "fundamen-tal flaw" on the matter of response to unanticipated events and use of good judgment l boils down to internal communications failures involved in the response to the impediments.
M/ The Staff proposes that the responses of the Traffic Guides to questions about the local of the Coliseum indicate a lack of basic knowledge of the Plan, but they do not relate that to an inability to deal with unanticipated and unrehearsed events. LILCO disputes the Staff's proposed finding that the response of the Traffic Guides either "sug-gests a breakdown in the training of Traffic Guides" or is " clear evidence of a f ailure to provide adequate training." N.F. 467.- There can be no threat to the public health and safety because the information to be provided by Traffic Guides is an unnecessary back-up to the primary sources of information about the location of the Reception Center which are the EBS messages and public information materials. _Se_e Response to N.F. .
l 467. Moreover, there can be no fundamental flaw on the basis of the Traffic Guides .I since, as Staff admits, the problem is readily correctable and not a fault in the way the i Plan is conceived. N.F. 467.
However, these acknowledged problems do not amount to a " fundamental flaw" for a very straightforward reason: They do not establish a pattern of breakdowns or a systemic failure, and ihus do not meet one of the Staff's essential criteria for a "funda-mental flaw." This is shown by two illustrations from the Staff's own findings. First, upon analyzing all of the components of the internal communications problem - the initial delay in responding to the impediments while verification was sought, the failure to include all information f rom the free play messages in communications to the field, and the sharing of information within the EOC -it becomes clear that they were gen-erally the fault of one individual, the Evacuation Route Coordinator, not of an organi-zation. L.F. 199, 209; N.F. 224, 226-27. The idiosyncratic nature of this problem is 11-lustrated yet a second way: by the Staff's examination and debunking of the numerous l other alleged failures to respond to unanticipated and unrehearsed events, including i
ENC and Rumor Control responses. The Staff's positive findings on these matters re-1 futes the existence of any systemic problem. N.F. 434-43. In short, the EOC communi-cations problems resulted largely from the failure of a single individual. And even though this individual's failures may have involved more than a single action, that per-son's actions do not establish a pattern of breakdowns or systemic failure, which the Staff concedes must exist to find a fundamental flaw.
Similiarly, by relying solely on the road impediments to support the conclusion of Contention EX 50.E that LERO personnel were not adequately trained to exercise good and independent judgment in the face of the unexpected, the Staff ignores substantial evidence from its own findings that would refute any pattern of breakdowns or sys-temic failure. See N.F. 443. Specifically, the Staff agrees that the various examples of j l
questionable judgment were isolated mistakes that are not indicative of a systemic fall-ure and also notes several examples of LERO workers " reacting to problems experi-1 enced in implementing the plan with good judgment" (see N.F. 436-43). Again, judging l i
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the Staff's proposed conclusion against its own standard, the conclusion does not make sense.
Contention EX 50.B - Knowledge of and Ability to implement the LILCO Plan and Procedures LILCO and Interveners basically address the same issues in responding to Con-
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tention EX 50.B -impediments, informing the media at the ENC, release data and dose projections, and the Traffic Guides' alleged lack of knowledge - but reach opposite conclusions about each of them. L.F. 425; I.F. 785. The Staff, while mentioning the ex-amples of the impediments and the ENC's dealing with the media, would find a "funda-mental flaw" instead on matters not explored on the record and outside the other par-ties' proposed findings on Contention EX 50.B: Bus Drivers' and Traffic Guides' knowledge of their assigned functions, and the timeliness of dispatch of Traffic Guides, Bus Drivers, Route Spotters, and Road Crews. N.F. 446-68. As with all of Contention EX 50, Interveners urge that each event contributes to a finding of fundamental flaw.
I.F. 770.
LILCO and the Staff agree that no " fundamental flaw"is dhclosed in two areas.
The first involves informing the media at the ENC, where Interveners never identified any failure to follow the Plan or Procedures, and LILCO and Staff generally agree that no fundamental flaw is established. L.F. 417; N.F. 430-34, 446.
LILCO and the Staff also agree that the impediments do not support a fundamen-tal flaw finding based on Contention EX 50.B.3g The Staff states that "LERO's 3y Interveners' specific examples of alleged failure to follow the Plan and Proce-dures in connection with impediments were the f ailure of the EOC personnel to inform field personnel either that the gravel truck impediment included multiple vehicles or that the fuel truck impediment posed the possibilty of fire and was blocking both road-ways. I.F. 284,285. However, neither OPIP 3.6.3 nor OPIP 4.1.2 requires such informa-tion and, as LILCO testified, these omissions were unimportant and did not delay LERO's response. L.F. 224. In addition, Interveners misstate the facts and argue that LERO personnel were not properly informed of the visual check of the fuel truck im-(footnote continued)
personnel's inability to implement the Plan in response to road impediments . . . [was]
not principally a function of lack knowledge of the Plan," N.F. 446; see also N.F.146, but apparently relles on the impediments for its finding of fundamental flaw with re-spect to the dispatch of Route Spotters and Road Crews.
Delays in Dispatch of Field Personnel The Staff's proposed finding of a fundamental flaw based on delayed dispatch of Traffic Guides, Bus Drivers, Route Spotters, and Road Crews is an inappropriate aggre-gate of mobilization tasks and emergency dispatch tasks; these are unlike events and cannot be aggregated to develop a pattern of breakdowns. The alleged pattern of de-lays in the emergency dispatch task is unsupported by the Staff's factual findings, which are devoid of any discussion on timely dispatch of Route Spotters or Road Crews, or by the record. N.F. 229, 231. There is no pattern of failure; any delay in the dis-patch of the Road Crew and Route Spotter to the fuel truck was an isolated event, as is l
proven by the fact that the Road Crew and Route Spotter dispatched to the gravel l truck impediment were, Staff agreed, promptly dispatched. See N.F. 226. Staff also 1
agreed that Road Crews were timely mobilized. N.F.154-57. In any event, untimely dispatch of a Route Spotter cannot consitute a fundamental flaw because Route Spot-turs are not required by the regulation and their " function is not critical to the success of the Plan," PID at 801; therefore, it is unlikely that Route Spotters could affect the public health and safety.
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(footnote continued) l pediment received by the Transportation Support Coordinator from the Bus Dispatcher at Patchogue Staging Area. I.F. 779. The information was in fact transmitted, but since the visual check was negative, no responsive actions was necessary. Response to I.F. 779. Neither of these incidents demonstrates a f ailure to follow procedures.
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Delays in Mobilization With respec't to specific charges of mobilization delays,b there is no "funda- q mental flaw." Mobilization of Road Crews and Bus Drivers.was agreed to be generally ]
timely and in conformance with the Plan and Procedures, N.F.154-57; see Prehearing Conference Order (Ruling on Contentions and Establishing Discovery Schedule) at 24 ]
(Oct. 3,1986) (denying admission of Contention EX 43 on delayed mobilization of Bus
. Drivers). No adverse effect on public health and safety was established on the basis of -
delays in Traffic Guide mobilization. L.F. 267,272,276. The minor delays with respect '
to Bus Driver mobilization were found only at Patchogue; the timely mobilization of l Buses Drivers at Port Jefferson and Riverhead, as well as in post-Exercise drills, de- $
1 feats any argument that there was a pattern of problems. Finally, Traffic Guide mobi-lization, as was made clear under Contention EX 40, was artificially delayed at Port Jrfferson by the use of the upper parking lot and by the pickup of box lunches, neither of which would be present in an actual emergency. Absent those delays Traffic Guides w;::re mobilized within tne approximately three hour time frame prescribed in the Plan. ]
See L.F. 271, 276-77; Response to N.F. 465. Additionally, the timely mobilization and dispatch of Traffic Guides from the Patchogue Staging Area and the fact that subse-quent drills have shown no significant problems with Traffic Guide mobilization, N.F.
489-90, indicates that delay problems were a_d hoe occurrences the day of the Exercise and are not endemic to Traffic Guide training.
3_6/ With respect to mobilization generally, the Staff appears to be holding LERO to a higher standard than other emergency response organizations. No one disputes that LERO mobilized a full complement of field personnel and that full mobilization has never been demanded previously in a Region II exercise. L.F.160. Obviously, it takes longer to mobilize and dispatch all field personnel than it takes to mobilize and dis-patch the sample of personnel generally evaluated at other exercises. Since full mohlli- 1 zation is never evaluated elsewhere, it cannot be of such material importance to the l NRC's evaluation of an emergency plan that failure to meet the Plan's goals exactly could constitute a fundamental flaw.
Lack of Knowledre by Traffic Guides and Bus Drivers l
The Staff is incorrect in asserting that any " fundamental flaw" concerning lack of basic knowledge about the Plan can be based on the Traffic Guides' failure to direct evacuees to the Nassau Coliseum: their procedures have never covered providing infor-mation to evacueas about the Reception Center and were never criticized on this ac-count. Moreover, the alleged problem with the Traffic Guides cannot be a fundamental flaw because there can be no real threat to the public health and safety from Traffic Guides' lack of this knowledge. The Traffic Guides would be, at most, an unofficial backup to the primary sources, which are the EBS messages and the public information brochure. L.F. 422. In addition, no " fundamental flaw" may be found since, as the Staf f admits, the lack of information is readily correctable, N.F. 467, and LILCO now directs traffic guides through their Procedure and Identification Badges to instruct evacuees to listen to the EBS message for information. OPIP 3.6.3, Att.1, p. 2 of 2.
i The Staff's proposed finding of a " fundamental flaw" based on the proposition that Bus Drivers lacked basic knowledge is ill-founded. It is true that three of the eight J l
Bus Drivers that FEMA evaluated in the field inadequately performed different portions ;
of their jobs. But these three various failures do not demonstrate a fundamental flaw in the Bus Driver training program because they are not consistent in any except the most general terms, and because diverse and redundant mechanisms in the Plan would provide reasonable assurance that public health and safety would be protected. FEMA EX Exh. I at 64-68. Diversity and redundancy are present because Bus Drivers are net assigned to a particular bus yard, transfer point, or route, OPIP 3.6.4, Att. 2; s_ee PID at 718-19. Thus, Bus Drivers who arrive at wrong bus yards or wrong transfer points can still be used to assist in evacuation of the public. And, each bus route is run by multiple Bus Drivers with redundant capacity so that if a portion of a route is missed, another Bus Driver will be along to cover it. See OPIP 3.6.4, Att. 6.
Contentions EX 50.G and EX 50.H - Dosimetry Interveners argue that lack of training for outside organizations in personnel dosimetry and widespread lack of knowledge of dosimetry and exposure control provides a basis for a finding of a " fundamental flaw." Staff and LILCO disagree with that con-clusion. Here, where the Staff applies the entire fundamental flaw test it finds that, I while there were arguably a sufficient number of training-related dosimetry problems to establish a pattern of breakdowns or a systemic failure, the problems identified do I not directly affect the health and safety of the public and appear to be readily cor-i rectable through the use of Identification Badge job performance aids and more training. L.F. 448; N.F. 463.
Contention EX 50.C - Ability to Communicate Necessary Information I- 4 LILCO and the Staff agreed that the media briefings problems and Rumor Con-trol problems were equipment problems, that Ridge Elementary School free play mes- ,
1 sage response showed good followup communications, and that several other communi- l cations breakdowns alleged by Interveners appeared to involve incorrect controller input (SCPD availability), isolated events (communications relating to dose data and dose projections), or inadequate procedures (FAA and LIRR contacts), rather than a flaw in training. L.F. 429-33; N.F. 470-75. Again, LILCO and the Staff diverged on the interpretation of the impediments, but here both parties agreed with the overall con-clusion that no pattern of failures was established that would indicate a fundamental flaw in the LERO training program on communications. See L.F. 427-33; N.F. 469-75.
Interveners again take the untenable position that all communications are important and that each incident, whether characterized as involving training, procedures or equipment, shows a failure of the training program. No fundamental flaw is established on this evidence. S_ee I.F. 610.
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l Contention EX 50.D - Failure to Follow Directions of Superiors .
Intervenor witnesses, in their prefiled testimony, stated they were unable to sup- i port the conclusion of Contention EX 50.D. Relying on the same evidence, Interveners j now claim disingenuously that there were a sufficient number (four) of " extremely sig-nificant events" to find a " fundamental flaw" on the basis of Contention EX 50.D. I.F.
795-804. The handful of incidents cited by Interveners does not meet Interveners' own test of significance; nor does it establish a pattern of breakdowns. No " fundamental flaw" is established by Contention EX 50.D, as both LILCO and the Staff agreed. L.F. )
434; N.F. 476.
Contention EX 50.F - Providing Information to The Public Through the Media 4
The Interveners' conclusion that Contention EX 50.F supports a finding of funda-mental flaw (I.F. 836) as compared with the Staff's and LILCO's conclusion that it does not (L.F. 441; N.F. 485), is based less on an interpretation of the " fundamental flaw" ,
1 standard than it is on Interveners' untenable assertions that the breakdown of the copy- )
ing machines in the ENC was a training problem and that ordinary electronic media should take precedence over the EBS system in providing emergency public informa- l tion. The Staff, LILCO, and FEMA in its Report all agree that the breakdown of the copying machines was not a training problem, that the media were provided with infor-mation from the LERO spokesperson and through the EBS message system and, on that basis, that there were no apparent examples of training failures. L.F. 329-32; N.F. 325; FEMA EX Exh.1 at 52-54.
Contention EX 50.I- Post-Exercise Correction of Training Flaws 1
The parties each have diffe' rent views of the results, remedial effect and predic- 1 tive value of the post-Exercise drills.
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Despite statements that the adequacy of the LERO training program should be determined by examining LERO's performance in the Exercise, Interveners use selected incidents of inadequate performance from the drills throughout their proposed findings as a substantive basis on which to argue that the training program is fundamentally flawed. See I.F. 679,700,703. But, Interveners improperly ignore the converse: they never weigh good drill performance against bad to reach a reasoned conclusion about whether problems were repeated and pervasive in the drills. L.F. 453 n.123, s_ee, e.g.,
Response to I.F. 774 n.522, 779 n.527, 810 n.543. On this basis alone, their findings should not be credited because they do not show whether there was a pattern of prob-lems.
While disagreeing on whether a fundamental flaw was demonstrated by Exercise F
l events, both LILCO and the Staff agree that subsequent drill performance should be ex-l
! amined only to the extent the Exercise has revealed fundamental flaws in the training program. L.F. 453, N.F. 486. Given the Commission's mandate in CLI-86-11 that any fundamental flaw be based on Exercise results, exploration of the drill reports absent a fundamental flaw is precluded.
The Staff and LILCO also concur that the post-Exercise drills, while not perfect, show that the areas in which Staff had proposed a " fundamental flaw" be found gener-ally had been remedied.E N.F 489-90, Response to I.F. 774 n.522, 779 n.527, 881.
And, the Staff concluded that " improvements in performance . . . give credence to the correctability of the deficiencies in knowledge exhibited during the Exercise, and in the 5 ability to respond to road impediments." N.F. 491-96. However, the Staff remained l l
3_]/ The Staff acknowledged that " review of the LILCO drill reports shows that re-sponse to road impediments improved substantially during the September / October drills, following problems experienced in the June drill . . . and good response to imped-iments during the December drills." The Staff also agreed that Traffic Guide perfor-mance since the Exercise has been timely, and that the December drills showed timely dispatch of Bus Drivers, Traffic Guides, and other field workers. N.F. 489-90.
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concerned about communications in the EOC and EOC communications to the field, N.F. 493.
The Staff's proposed finding of " fundamental flaws" on impediments, knowledge and timely dispatch ignores the ready-correctability test which it appropriately applied in other contexts, such as dosimetry training, N.F. 463. It also ignores the fact that consistently good performance in subsequent drills indicates that the Exercise events were ad hoc occurrences, and not evidence of systemic, pervasive failures. The Staff's f ailure to rely on the post-Exercise drill reports for this purpose is apparently based on the fact that drills were observed only by LILCO. N.F. 491. This is not a legitimate basis on which to conclude there remains a fundamental flaw requiring a further exer-l cise. First, the authenticity and truthfulness of the drill reports was not questioned by Staff or by Interveners, when they offered the drill reports into evidence. Second, the .
1 predictive nature of emergency planning findings requires reasonable assurance, not ab-solute proof, that the public health and safety will be protected. Consistent with the language of Union of Concerned Scientists v. NRC,735 F.2d at 1441, this Board "should identify fundamental defects in the way that an emergency plan is conceived;" prob- .
1 lems which have been shown to have been an ad hoc occurrence on the Exercise day l and which are readily correctable by means of additional training are not of the nature l
that would require a substantial and potentially far reaching revision of the training program that is the essence of a " fundamental flaw" finding. See L.F. 20-24. Accord-ingly, LILCO believes that the Board should adopt the approach in its proposed findings as more well reasoned and reach the conclusion that Contention EX 50 is meritiess. )
Miscellaneous l
Several other aspects of Interveners' findings require brief comment. First, j l
throughout the litigation of Contention EX 50 and in findings, Interveners seek to cre- {
1 ate the impression that multiple problems occurred in training by defining the
" problems"in a manner that permits Interveners to count over and over the same inci-dent. For example, LILCO admitted that the Evacuation Route Coordinator's actions led to some delays in the impediment response. Interveners transmute the Evacuation Route Coordinator's behavior into multiple training failures including alleged failures to 1
deal with unanticipated and unrehearsed events, failures to follow the Plan and Proce-dures, failures to communicate information in a timely and accurate fashion and fall-ures to exercise good judgment. LF. 777-79, 813-18, 856-60, 873. Such multiple-I counting taints all of Interveners' findings and undercuts their assertions that what l l
occurred on the day of the Exercise involved patterns of breakdowns rather than I l
largely unrelated events. l Second, Interveners inexplicably spend 17 pages discussing the Goodkind analyses and the Pursell content analysis, I.F. 724-49, when the Board has already indicated it will use those analyses only as background, Tr. 5359 (Frye), and when LILCO's Proposed Findings do not press those arguments, L.F. 459-64. In that discussion, Interveners also l misuse the other FEMA post-exercise assessments, which were admitted only as back- l l
ground, in an inappropriate, backdoor attempt to establish an affirmative case on I 1
LILCO's Exercise performance as compared with other Region II exercises.1.F. 738-45. )
l The Board should not nor can it now adopt Interveners' analyses, which were not spon- )
1 sored by any witness, and no decision need be made on the issues raised by these Inter-venor findings. Indeed, as the accompanying table shows, many of the premises l
underlying these proposed findings are incorrect. j For the above reasons, LILCO believes that the Board cannot properly find that the evidence in this proceeding supports the conclusion that the February 13,1986 Ex-ercise revealed " fundamental flaws"in the LERO training program. l I
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CONCLUSION For the reasons stated in this reply brief and in LILCO's Proposed Findings of Fact and Conclusions of Law on the February 13,1986 Emergency Planning Exercise for Shoreham, dated August 3,1987, LILCO asks that this Board find (1) that there are no fundamental flaws in the LILCO Plan revealed by the February 13,1986 Shoreham Ex-crcise and (2) that the correction of problems noted by FEMA as a result of the Fcbruary 13, 1986 Exercise can be lef t to the rov. tine NRC Staff and FEMA evaluation and remediation process and does not require a formal remedial exercise prior to issu-ance of a full power license.
Respectfully submitted, fiLEBAW D'c nald P.' n / '/
' "~
Ka thy E . McCleskey[
Le e B. ugin Jessine A. Monaghan HUNTON & WILLIAMS 707 E. Main Street P. O. Box 1535 Richmond, Virginia 23212 September 25,1987 l
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l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of ') i
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5 ,
) (EP Exercise) i (Shoreham Nuclear Power Station, )
l Unit 1) )
i LILCO'S REPLY TO INTERVENERS' AND NRC STAFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE FEBRUARY 13,1986 SHOREHAM EMERGENCY PLANNING EXERCISE VOLUME II i
HUNTON & WILLIAMS :
707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 September 25,1987 l
l
i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
. (Shoreham Nuclear Power Station,' )
Unit 1) )
LILCO'S REPLY TO INTERVENERS' AND NRC STAFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE FEBRUARY 13,1986 SHOREHAM EMERGENCY PLANNING EXERCISE VOLUMED I
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J HUNTON & WILLIAMS j 707 East Main Street l
P.O. Box 1535 Richmond, Virginia 23212 September '25,1987
- _______ - i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ;
I Before the Atomic Safety and Licensing Board In the Matter of ) i
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S REPLY TO INTERVENERS' AND NRC STAFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE FEBRUARY 13,1986 SHOREHAM EMERGENCY PLANNING EXERCISE VOLUMEII TABLE OF CONTENTS Page Response to Interveners' Findings ;
I. Contention EX 15.A-I, K, M; 16.A-L, N: Scope of the Exercise l I
(I . F . 4 3- 2 0 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Contention EX 21: Sample Size (I. F . 2 0 3 - 214 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 III. Contention EX 41.A, B, E: Roadway Impediments (I . F . 215 -3 4 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 IV. Contention EX 34: Backup Route Alert Notification (I . F . 3 4 6-3 6 8 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 V. Contention EX 40.A, B, E: Mobilization of Traffic Guides (I . F . 3 6 9 - 4 51 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 l
VI. Contention EX 36: Wind Shif t I (I. F . 4 5 2- 4 7 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 5 1
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VII. Contention EX 22.A; 49: Monitoring at Nassau Coliseum i i
(I.F. 4 7 3-5 0 8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
' VIII. Contention EX 47: Registering, Monitoring, and Decontaminating Evacuees from Special Facilities (I.F. 5 0 9-5 2 8 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 4 IX. Contention EX 38; 39; 40.C; 22.F; 44; 49.C: Adequacy of Public Information (I. F . 5 2 9-6 7 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 0 1
X. Contention EX 50: Training I (i . F . 6 7 4- 8 8 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 l l Response to Staff's Findings l
)
XI. Contention EX 40.A, B, E: Mobilization of Traffic Guides
( N . F. 101- 13 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 XII. Contention EX 41.A, B, E: Roadway Impediments
( N . F . 13 4 -2 3 2 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208 J
i XIII. Contention EX 50: Training J
( N . F. 4 0 5 - 4 9 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 l
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i Volume II contains a finding-by-finding response to individual Intervenor and Staff find-
-ings that .LILCO believes are inaccurate, misleading, one-sided, seek to revisic issues already resolved in the planning litigation, and raise issues outside the scope of the issues raised by the contentions. This volume supplements and supports the arguments contained in the brief in Volume I.
RESPONSE TO INTERVENERS' FINDINGS l
I. Contention EX 15.A-I, K, M: 16.A-L, N Intervenor Proposed Finding LILCO Response Explanation 44 Unjustified inference Interveners imply that, while they are asking the Board to interpret the language of Appen-l dix E, LILCO is asking for something else. In f act, LILCO's entire argument is premised on the ambiguities in the language of Appendix E.
47 Refuted by record; out Some facts are very much in dispute. See L.F.
of context 114 (Recovery and reentry activities were con-ducted to a degree at the Exercise.) LILCO EX Exh.12 (Test. Cont. EX 15/16), at 39 (The record also shows that some attention was l
given by LERO to the risk of ingestion pathway exposure.) FEMA EX Exh. 5 at 105 (FEMA's testimony states, in the pages immediately preceding those cited by Interveners, that de-spite its limitations, the Shoreham Exercise was " equal or greater in scope compared to any other full-scale exercise evaluated by FEM A Region II to date.") Tr. 7646 (Kowieski) (For some objectives, the demonstration was more extensive than in other exercises, although for others it was less.) For additional facts in dis-pute, see also Response to I.F. 56,59,64,66, 69, 76, 78, 85, 89, 97, 113, 115, 127, 157, 201.
50, Unjustified inference See N.F. 27-29; FEMA EX Exh. 5 at 90-92; Tr. l 52 8642-43 (Kowleski); FEMA EX Exh. I at 2 '
(When the NRC requested that FEMA conduct
Intervenor Proposed Finding LILCO Response Explanation an exercise, the Commission recognized that limitations on LILCO's legal authority might i prevent the Exercise from being " full" only from the standpoint of State and local partici-pation; the Commission directed FEMA to con-duct an exercise as full as feasible without such participation, pursuant to FEMA's " Option 2;" and Option 2 provided for an exercise that would include "all functions and normal exer-cise objectives," contradicting Interveners' ;
suggestion that the scope of the Exercise was what concerned the Commission.)
53 Not supported by cita- See Tr. 7628 (Baldwin, Keller, Kowieski) (per-tion tains to communications with bus companies, schools, special f acilities; no mention of NRC j directive to focus on the 10-mile EPZ.)
54,n.46 Unjustified inference The Interveners seem to take inconsistent po-sitions. As Interveners themselves have previ-ously pointed out, see I.F. 45, the issue here is not what was actually demonstrated, but rath-er whether the number and types of objectives j included in the Exercise make it a full partici- j pation Exercise. See LILCO EX Exh.12 (Test. l Cont. EX 15/16), at 6; Tr. 7511 (Keller),5930 ]
(Frye). Thus, it is possible to have a "f ailed full !
participation exercise" wherein various ele- )
ments that are included in the exercise scenar- !
10 are not fully tested, but the exercise is nev- I ertheless a " full participation" one. See Tr.
6868-70 (Daverio). Although the sirens may not have been sounded during the Exercise, this activity was included within the Exercise objectives for which an ARCA was received for the failure to test, and this omission does not render the Exercise less than full partici-pation. See Tr. 6867-68 (Daverio).
55, Not supported by cita- Not only is it untrue to say that Appendix E I 56 tion; out of context; un- was ignored in the evaluation of the Exercise, I justified inference the suggestion that Appendix E is utterly di-vorced from the FEMA Guidance and regulato-ry process is erroneous. See L.F. 44-52; N.F.
39; Tr. 8452 (Baldwin)(stating that the RAC, in ,
reviewing the Exercise objectives for l Shoreham, was primarily concerned with the .
question of whether the major observable por- l tions of the plan were exercised),7501 l
l l
l l l l J
- Intervenor -
Proposed Finding LILCO Response Explanation (Kowieski) (witness qualified his answer that FEMA did not use Appendix E when evaluating the Exercise, adding "with the qualification that obviously the NUREG is interrelated to 10 C.F.R.") See Tr. 6242-43 (Daverio) (While .
Appendix E may not have been explicitly ad-dressed,it was a tacit assumption that the Ex-ercise would comply with its parameters.)
59 Not supported by cita- OPIP 3.3.4, S 3.1; OPIP 3.3.4, S 5.1.1; OPIP tion; refuted by record 3.8.2,5 5.1.3. (Interveners mischaracterize just what is supposed to occur once a decision is made to recommend protective actions to the public. ~ According to the LILCO Plan, activation of the prompt notification system must take place within 15 minutes of a deci-sion to notify the public of a Site Area or Gen-eral Emergency Classification or of a pro-tective action recommendation. Within that 15 minute period, the radio station is called and given an authentication code. The station broadcasts a pre-recorded or " canned " mes-sage. When the pre-recorded message is heard on the radio, LERO activates the sirens. The radio station then broadcasts a live EBS mes-sage from the LERO EOC. This message is recorded for subsequent rebroadcast. In short, the contact with the radio station is much more mechanized and involves much less
" human interaction" than Interveners suggest.)
See FEMA EX. Exh. 5 at 107; FEMA EX Exh. I at 26 (On the day of the Exercise FEMA saw all it needed to conclude that the public will be protected in an actual emergency. Based on activities observed during the Exercise, FEMA determined that all EBS messages were pre-pared and coordinated in accordance with the Plan. In all cases the simulated siren sounding occurred within 15 minutes of the decision by the Director of Local Response.) L.F. 74,77 (During the Exercise LERO personnel demon-strated the ability to implement all the admin-istrativa elements of the EBS system, and the sheer mechanical capabilities of the system will be tested in a separate FEMA REP-10 Test.)
4 1
i lnt'ervenor. J Fivin J .
j
. Findint LILCO Response _ Explanation 60 Not supported by cita- . Interveners state that it is " standard" FEMA tion; out of context Region II practice to test the sirens and EBS system; however, this is not entirely accurate.
What is more, Interveners ignore the f act that outside Region II, the sirens are are of ten -
sounded and the EBS message is of ten broad-cast in a separate FEMA REP-10 test. And,
' Interveners exaggerate what has been done at other Region II Exercises and de-emphasize what was done at Shoreham, see New York State EX Exh.1 (Test. Cont. EX 15/16), at 41 (it is possible that sirens may not have been sounded in some early exercises in New York State); Tr. 7553 (Keller) (in at least one Region 11 exercise the sirens were not ,
sounded), 8525-26 (Keller) (of tentimes, at exer- l cises outside Region II the sirens are sounded and the EBS message is broadcast in a separate FEMA REP-10 test) 8398 (Kowieski)(the spot check of tone alert radios done at the Indian Point exercise was "very limited"), 7561 (Baldwin)(FEMA did evaluate the simulated coordination of EBS messages with WALK Radio at Shoreham), 7591 (Keller) (FEMA will normally spot-check to ensure that tone alert
. radios are available at schools where they are distributed, but not all plans have them in schools.)
60,n.48 Out of context See Tr. 6876 (Behr), 7658-59 (Kowieski) (Inter-venors omit to mention that the radio station may decide when to broadcast the EBS, thus uncoupling that activity from other Exercise events.)
60,n.49 Evidence used beyond The expansive use of other Post-Exercise scope of admission Assessments (PEAS) made by Interveners in i this footnote and elsewhere in their Proposed Findings should be disallowed for the same rea- 1 sons counsel for Interveners argued, Tr.
6081-85 (Lanpher), and the Board ruled, Tr.
6090-91 (Frye), that LILCO could not make such use of reports during the EX 15/16 pro-ceeding. These PEAS require interpretation by a sponsoring witness who can attest to the methodology employed to evaluate them. See Tr. 6084-85 (Daverio) (Witness concedes that reviewing PEAS " inherently [ requires] judg-ment".) LILCO was given no opportunity
Intervenor o >
PropoGed Findinsr LILCO Response Explanation during the EX 15/16 hearing to cross-examine Interveners' broad use of these reports, which clearly involves their interpretive judgment as to what was or was not tested in these other exercises. Such expansive use of Post-Exercise reports from other exercises is inappropriate here for an additional reason. While the Board did admit these other PEAS as Exhibits (in the context of the training contentions), it did so with the qualification that they are to be used only as " background." Tr. 6795 (Frye). Indeed, a review of Intervenor Proposed Findings in which other PEAS are cited for comparative purposes reveals that Interveners' interpreta-tion of what was tested at these other exer-r cises is subject to question. See Respense to LF. 92, n. 68 and 98, n. 75. In addition, the references to other exercises in Footnote 49 purportedly support the proposition that it is
" normal" for FEMA to spot check tone alert radio availability at exercises. However, while this activity may have been casually observed by FEMA, in none of these reports is it indi-cated that this activity was a stated objective.
63 Not supported by cita- See N.F. 45, 48, 49; LILCO EX Exh.12 (Test.
tion; out of context Cont.15/16), at 17 (there were only two days between the enjoining of the locallaw and the date of the Exercise); Tr. 6828-33, 6846-47 (Daverio)(although for LILCO to have tele- .
phoned WALK Radio would not have involved !
mandatory public participation,it was not nec- ) '
essary to demonstrate the Plan and Procedures because LERO did everything, including calling someone simulating WALK; moreover, it might well not have been " reasonably achievable" for WALK to participate because of Local Law l 2-86 and because of the hostile political cli- l mate.) j I
64 Unjustified inference S_gLe L.F. 89, 91, 92 (The f actual allegations of ,
Contention EX 15.C are not all "true.")
60 Not supported by cita- During the 1984 litigation of the LILCO Plan, tion; out of contexI FEMA witnesses did not testify that the public information program had to or would be evalu-ated during the very first Shoreham exercise.
See Tr. 7549-50 (Keller)(FEMA testified in 1984 that the effectiveness of the public i
__.___d
6-o Intervenor Proposed
- \ Finding LILC.O Respome Explanation information program "would" be evaluated in an exercise at Shoreham), 7663 (Keller) (when FEMA said in 1984 that it "would" evaluate something in a Shoreham Exercise, they meant
. it would do so during an exercise, not during the first exercise), 7690 (Keller) (there is a dis- I tinction between saying FEMA "has" to evalu-ate something and saying that it "would" evalu-ate something.) Pages at Tr. 7648-52 are not relevant transcript cites.
67 Refuted by record; un- The conclusion that FEMA considered the pub-justified inference lie information program a " major observable portion" of the Plan within the meaning of Ap-pendix E is not' supported by the record. See FEMA EX Exh. 5 at 112 (it is FEMA's position that the public information material need only be distributed prior to full operation of the plant); L.F. 91 (FEMA witnesses pointed out that distribution of the brochure and testing of the public information program are no longer standard FEMA objectives; that af ter Mr.
Kowicski's tenure as RAC Chairman ended, the two " standard" public information objectives were not used; that a determination of the bro-chure's understandability and readability had already been made as a part of the RAC re-view; and that the readability of the brochuw was a planning issue that could not have re-sulted in a deficiency during the Exercise.)
67,n.53 Not supported by cita- FEMA EX Exh. 5 at 112 (Provides no indication tion of how FEMA evaluates a public information program.)
68 Out of context; refuted See N.F. 45; LILCO EX Exh.12 (Test. Cont. EX by record 15/16), at 17 (The costs involved and legal au-thority concerns pertaining to distributing the brochure were only part of the reason the pub-lic information program was not evaluated at the Exercise;in addition,it would not have been possible to print and distribute the bro-chures in the two days between the enjoining of the locallaw and the date of the Exercise.)
Tr 7542-43 (Keller, Kowieski)(The Region II
" standard" public information objectives were included in FEMA's initial draf t objectives for Shoreham as an oversight and were deleted when FEMA was reminded that LILCO had not distributed the brochures.)
Intervenor Proposed Finding LILCO Response Explanation 69 Refuted by record See L.F. 99,101; N.F. 54-59 (Allegations are not "in most respects" true.)
71 - Out of context; refuted See N.F. 55,59. Interveners misstate the by record; evidence record and take several things out of context used beyond scope of in this paragraph. See Tr. 7583 (Kowieski)(it admission; no citation is n_qt, normal practice that persons from the EOC communicate with "most" of the school districts within the 10-mile EPZ), i_d. (inclusion of only a single school district is "very consis-tent with what we have done in the State of New York"), 7581-85 (Keller)(even when more than one school district is contacted, FEMA does not evaluate all of these contacts),7584 (Keller) ("One school is probably a little small for most of the exercises in New York, but I don't think we evaluate the contact of every school district".) Tr. 7583 (Kowieski), 7581-85 (Keller) (The statement by Interveners' wit-nesses that " FEMA regularly sends evaluators to several school districts to interview school officials about their knowledge of emergency procedures" was essentially refuted by FEMA.)
See Response to I.F. 60, n.49 (Once again, the expansive use made by Interveners of other post-exercise assessments should be disal-lowed.)
72 Refuted by record; out The suggestion that "LILCO refused" FEMA's of context. suggestion to write to other schools to ask them to participate is an overstatement. See Tr. 7582 (Keller) ("I think your characterize-tion that [LILCO] declined to do so may be a little strong"), 6848, 6973-75 (Daverio) (LILCO did not contact school districts other than the i Shoreham-Wading River Central School Dis-trict given the manifest hostility evinced by those districts and the unlikelihood of their agreement to participate.)
73 Refuted by record See L.F. 98-99; N.F. 56,59; LILCO EX Exh.12 (Test. Cont. EX 15/16), at 36-38 (Interveners' s statement that the testing of school prepared-ness was "quite limited" ignores the f act that LERO demonstrated the decisional ability to implement early dismissal and the physical means to assist schools in an evacuation.) Tr.
7601 (Keller) (To see if schools could imple-ment early dismissal once the children were at school, FEMA used out-of-sequence messages.)
f l
I Intervenor Proposed Finding LILCO Response Explanation 74 Out of context; refuted Several of the statements in this paragraph are by record; not supported either taken out of context or are refuted by by citation the record. Thus, FEMA witnesses did n_ot say that the school preparedness tested at the Ex-ercise was limited compared to the testing done at other exercises. See Tr. 7583-84 (Keller) (FEMA witness said one school is a " lit-tie small" but added that not every public school district is contacted and evaluated dur-ing other New York State exercises, and that to include only a single school in a full-scale exercise is "very consistent with what we have done in the State of New York".) Moreover, contrary to Interveners' Finding, the transcript reference at Tr. 6930-31 (Daverio) says nothing regarding teachers or school bus drivers. F1-nally, FEMA witnesses denied that it was
" standard" FEMA Region II practice to spot-check tone alerts at schools. See Tr. 7591 (Keller)(FEMA normally spot checks where tone alert radios are distributed, but not all of the plans have them in schools.)
74,n.58 Relitigation of planning See L.F. 327 (The Board found in the planning issues litigation that LILCO was required to identify reception centers for school children. LILCO does not say anywhere in its Findings that the l
Board should be " unconcerned" about this.
I Rather, the Findings state that this is not a fundamental flaw in the Plan revealed by the Exercise.)
75 Out of context See Tr. 7612 (Keller) (it was not an objective of the Exercise to draw a global conclusion with regard to all schools or school districts in the 10-mile EPZ), 7613 (Keller) (while it is true that objectives EOC 18,20 and Field 15,16 speak in terms of " schools," the Shoreham-Wading River Central School District is com- l posed of more than one school.)
1 75,n.59 Outside the scope of the These comments go to the merits of FEMA's ]
contentions review. j l
75,n.60 Unjustified inference Tr. 7327 (Daverio) (Mr. Daverio's statement was that he did not have a way to dispute that l FEMA wanted to talk to more school districts; 1
this statement in no way translates into the l
opinion that the Exercise, as a result, was f atally flawed.)
________ - _____ - _ _ _ a
)
Intervenor Proposed Finding LILCO Response Explanation 76 Unjustified inference See L.F. 93-94 (There was some dispute about what actions are required for special facili-ties.)
77 Refuted by record See Tr. 7662-63 (Kowieski) (LERO would not necessarily, under the Plan, need to coordinate transportation needs of adult homes and nursing homes.) l l
78, Refuted by record; not See N.F. 53. Several of Interveners' allegations 78,n.61 supported by citation in this paragraph are contradicted in the record. Thus,it is not true that all calls to special f acilities were simulated. See Tr.
6833-34,6933-34 (Daverio) (Witness testified 1 that some nursing homes did, in iact, receive calls during the Exercise; that he believed LILCO's Admissions were to this effect; and that during the Exercise the Crest Hollow and Oak Nursing Homes telephoned.) Similarly,it is not true that FEMA testified in the 1984 planning litigation that it viewed the assess-ment of ambulance availability as a require-ment of the first Shoreham exercise. See Tr.
7690 (Keller) (FEMA did not say in 198iThat this activity had to be looked at but that they would look at it during an Exercise.) Compare Tr. 7663 (Keller)(When FEMA said, in the ear-lier proceeding, that it "would" evaluate the level of coordination between LERO and adult homes and nursing homes during an exercise, it meant it would do so during an exercise within the 6 year cycle, not during all exercises and not during the first exercise.) The suggestion that there was no test of LILCO's capability to register, monitor, or decontaminate special f a-cility evacuees is also contrary to the record.
See L.F. 94; LILCO EX Exh.12 (Test. Cont.
EX 15/16), at 40.
79 Unjustified inference See Response to I.F. 78 (There is no basis to say that the Shoreham Exercise was any different than others with regard to special f acilities, since special f acilities were telephoned during the Shoreham Exercise.)
80 Out of context See Tr. 7663 (Keller)(FEMA testified in the 1984 proceeding that it would evaluate the level of coordination between LILCO and adult nursing homes through a sampling approach at
Intervenor Proposed Finding LILCO Response Explanation an exercise for Shoreham during the six year cycle, not during all exercises, and not neces-sarily during the first exercise.)
83 Unjustified inference Response to I.F. 85; See N.F. 59 (Interveners' f actual allegations are not true.)
85 Unjustified inference; See LILCO EX Exh. 21 (Test. Cont EX 21), at out of context; outside 13-14) (contrary to Interveners' implication the scope of the con- that only eight bus drivers were evaluated by tentions FEMA, other drivers were evaluated during briefings, and some at transfer points); Tr.
8548 (Kowieski)(while FEMA evaluated eight buses for the general population, Interveners ignore the fact that FEMA also evaluated one school bus and one bus for the home-bound, mobility impaired.) The last sentence of Find-ing 85 goes to the merits of FEMA's review, and is beyond the scope of the contentions.
86 Unjustified inference; See Tr. 7684 (Kowieski) (merely made state-out of context ment "to this effect" that bus availability "would" be assessed during an exercise.)
Compare Response to I.F. 78, 78, n. 61; Tr.
7663 (Keller)(When FEMA said in the 1984
( planning litigation it "would" do something dur-
! ing an exercise at Shoreham, it meant that it
) would do so in a_n exercise during the 6 year cycle, not in the first exercise.)
87 Not supported by cita- For this proposition Interveners cite only their
' tion own unsubstantiated testimony, which consists of no more than blanket assertions without any supporting f acts.
88 Out of context; not sup- Interveners state that at other plants where ported by citation; un- bus drivers are evaluated, they are usually justified inference " professional drivers." Interveners' use of the term "professlor.al"is meaningless. g LERO bus drivers have bus licenses. See LILCO EX Exh.12 (Test. Cont. EX 21), at 14. Under no Plan would drivers be doing their everyday job.
Several other statements made by Interveners are equally misleading. S_ee e Tr. 8667 (Kowieski)
(not all bus drivers at other plants where bus drivers are evaluated are " professional" drivers
- there are some exceptions), 8741 (Keller)
(witness did not say there were significantly larger numbers of transit-dependent persons in i
.___.____.---__.__.._____.____.~____________J
l Intervenor Proposed Finding LILCO Response Explanation the Shoreham and Indian Point EPZs than other EPZs, but rather that there are a significant number of people that would require bus trans-portation to evacuate these sites and that these two had the largest transportation re-quirements.)
89 Refuted by record; un- See L.F.104: N.F. 63,64. (The f actual allega-justified inference tions in Contention EX 15.I are not all true.)
91 Out of context; un- See N.F. 62; Tr. 7526-28, 7539 (Keller, justified inference Kowieski) (While, in theory, FEMA could have developed ingestion pathway objectives for the Shoreham Exercise, FEMA witnesses stressed that,in addition to the NRC's directive to con-centrate on the 10-mile EPZ, there had never been a full-scale test of the ingestion pathway in New York State, and that the New York State exercises that had included ingestion pathway objectives had been haphazardly per-formed using now outdated guidance.) See Tr.
7527-28 (Keller), 8595-86 (Kowieski) (Moreover, they said there was no current FEMA guidance on testing ingestion pathway, and as a result, the State had refused to schedule ingestion pathway exercises until this fall.) Tr. 7526 (Kowieski)(Finally, FEMA witnesses said they wished to make the Shoreham Exercise consis-tent with what had previously been done in New York State.)
92 Refuted by record See L.F.104,106; N.F. 62-64; Tr. 7527-28 (Keller)(LILCO and FEMA disagree with the Interveners' statement that "there is no con-ceptual reason why ingestion pathway testing could not be included in an exercise." The rea-sons are many: lack of FEMA Guidance; New York State's refusal to include such objectives; and consistency with previous exercises held in New York State.) Tr. 7527-28 (Keller) (While it is true, as Interveners point out, that some in-gestion pathway testing was done in early New York State exercises, the ingestion pathway testing conducted in these early exercises was, according to FEMA witnesses, performed unsatisfactorily, using now outdated guidance.)
l i
Intervenor Proposed Finding LILCO Response Explanation 92,n.68 Evidence used beyond See Response to I.F. 60, n.49. (Interveners scope of admission; un- state that the ingestion pathway activities justified inference tested in early NYS exercises exceeded those tested at the Shoreham Exercise. Interveners' interpretation of these PEAS is questionable, however. For example, a review of SC EX Exh. 63, the PEA for the 3/9/83 Indian Point Exercise, reveals that only a water reservoir sample was taken. No milk or f arm samples j were taken (p.20). Protective actions for in-gestion pathway were based upon the emergen-cy classification in NUREG-0654; that is, these were automatic actions given the level of emergency declared. Recommendations were thus no different from those made at the Shoreham Exercise. See Tr. 6918-20 (Daverio).
A review of SC EX Exh. 64, the PEA for the 8/24/83 Indian Point Exercise, reveals that recommendations were also made upon classi-fication. Nothing in the Report indicates that ingestion pathway field sampling was accom-plished (pp. 21,30.) A review of SC EX Exh.
65, the PEA for the 11/28/84 Indian Point Ex-ercise, reveals that there is no indication that {
any ingestion pathway activites were actually l accomplished at the Exercise. The only refer- j ence to ingestion pathway activities is in the {
listing of objectives (pp. 22-23). A review of j SC EX Exh. 73, the PEA for the 8/11/82 1 Fitzpatrick Exercise, reveals that the ingestion j pathway sampling was limited and was never I evaluated during the Exercise (p. 34). There is j no indication that any ingestion pathway eval- I uation or protective actions were made during the exercise (pp. 24-29). A review of SC EX Exh. 74, the PEA for the 9/15/81 Nine Mile Point Exercise, reveals that there is no indica-tion in the Report of any calculation assess-ment or sampling, and thus what was done at i this exercise is less than what was done at !
Shoreham (p. 22). Finally, a review of SC EX Exh. 75, the PEA for the 9/28/83 Nine Mile i Point Exercise, shows that ingestion pathway recommendations were based upon standard precautionary measures no different from Shoreham's, although these recommendations encompassed more products since it was September rather than February, when f arm-stands are active (p. 25). Local agents from l
i
Intervenor Proposed Finding LILCO Response Explanation the Department of Agriculture and Markets were dispatched to take samples, but this was not the basis of any protective action (pp.
30-31).
93 Refuted by record; un- Interveners are wrong when they minimize the justified inference role of factors other than the NRC directive in the decision to exclude ingestion pathway. See Tr. 7526 (Kowieski) (FEMA's decision not to in-clude ingestion pathway objectives was based not only on NRC's directive to focus on the 10-mile EPZ, but also on what had theretofore been done in the State of New York), 8612-13 (Kowieski) (the January 17, 1986 Papile letter regarding New York State's position that it would refuse to accept ingestion pathway ob-jectives absent federal guidance reaffirmed FEMA's judgment to exclude ingestion pathway objectives in the Shoreham Exercise.)
95 Refuted by record; un- The testing of ingestion pathway activities at justified inference the Exercise was as extensive as in any of the other exercises cited in I.F. 92, n.68. Interve-nors call Connecticut's participation " limited in the extreme." Yet telephone calls are ex-actly what Interveners strus should have been made to special f acilities and other entities in order to make LERO's participation mean-ingful. See I.F. 78, 78, n. 61. Moreover, the Indian Point exercises pointed out by Interve-nors make no reference to participation by Connecticut. In any event, LILCO and the NRC Staff did not find Connecticut's partici-pation or the other ingestion pathway activi-ties to be " meaningless". See L.F.104 (border State of Connecticut has four operating units, so its participation need not have been more extensive in this Exercise); N.F. 63 (the partic-ipation of Connecticut was reasonable and ap-propriate); Tr. 6919 (Daverio) (at least one in-gestion pathway dose projection was done.)
97 Not supported by cita- See FEMA EX Exh. 5 at 128 (FEMA Testimony I tion; unjustified infer- does not state that LILCO interposed no objec-f ence tion to the omission of recovery / reentry objec-
) tives.) LILCO EX Exh.12 (Test Cont. EX l 15/16), at 40 (In f act, the record shows that
' LILCO was willing to make recovery and reen-try activities part of the Exercise.)
Intervenor Proposed Finding LILCO Response Explanation 97,n.74 Unjustified inference Interveners are mistaken when they say that 1 lack of guidance was merely a secondary rea- '
I son for not including recovery / reentry testing.
See N.F. 69; Tr. 7678-79 (Keller) (Lact: cf guid-ance was, in fact, a paramount reason for excluding recovery / reentry objectives; FEM A Region II agreed with New York State's ap-proach to await more formalized guidance, and as a result, the set of objectives Mr. Kowceski ;
submitted to LILCO for the Shoreham Exercise l did not include recovery / reentry objectives.) !
See also Tr. 7675-79 (Keller) (While it would not have been " impossible" to exercise recov-ery/ reentry at Shoreham, especially aspects of it that dealt with things other than dose levels for which there was no guidance, it would have been difficult since there was no up-to-date guidance of any sort regarding recov-ery/ reentry activities.)
98 Unjustified inference Tr. 7675-79 (Keller)(Although FEMA witnesses said it would not be literally " impossible" to test recovery / reentry, they did say that it would not be feasible to do so, given the lack of guidance and the current system.)
98,n.75 Evidence used beyond See Response to I.F. 60, n. 49. Again, Interve-scope of admission; un- nors' interpretation of the PEAS from other ex-justified inference ercises is questionable. A review of these re-ports shows that Interveners exaggerate the extent of recovery / reentry activities per-formed at other exercises. For example, a re-view of SC EX Exh. 62, the PEA for the 3/3/82 Indian Point Exercise, reveals that there is no discussion of any recovery / reentry actions ac- j tually performed or evaluated at the State EOC '
(p. 23), Westchester County (p. 37), or Orange County (p. 67). Interveners' reference to p. 46 is only for Rockland County. A review of SC ]
EX Exh. 70, the PEA for the 1/21/82 Ginna Ex- j ercise, reveals that Interveners omit that the Report goes on to say that "(r]eentry proce-
! dures were not observed due to rapid time compression of the exercise"(p. 38). The Re-port further goes on to say that "(s]Ince the ,
termination of the exercise was generalized, l the actual demonstration of capabilities such l as continued estimation of population exposure j and issuance of a close-out press release were f
1
_____J
x '
Intervenor.
- Proposed
. Finding .
LILCO Response Explanation not performed"(p. 38). Moreover, FEMA's rec-commendation was that "[f]uture exercises should allow additional time to demonstate-rather than simulate key reentry and recovery procedures"(p. 38). A review of SC EX Exh..
73, the PEA for the 8/11/82 Fitzpatrick Exer-cise, reveals that the Report states that
"[rlecovery and reentry procedures were only _
partially demonstrated (in Oswego County]
due to the limited time available during the ex-ercise" (p. 34).
.101, n.78 Unjustified inference FEMA regulations speak in terms of " full par-ticipation" exercises, 44 C.F.R. S 350.2(j), and so presumably its guidance is designed to meet that regulatory standard. To the extent the In-tervenors are raising an issue of first impres-sion - namely the importance of certain omis-sions from the Shoreham Exercise -- draf t GM EX-3 is useful in providing some perspective on these issues. See N.F. 32.
105 Unjustified inference; See LILCO EX Exh.12 (Test. Cont. EX 15/16),
refuted by record at 30-31 (LILCO does not say that the allegedly omitted Plan elements were " insignificant,"
but rather that none of the alleged omissions is so vital to Plan implementation as to have ren-dered the scope of the Exercise fatally flawed);
L.F.152; N.F. 44; LILCO EX Exh 12 (Test.
Cont. EX 15/16), at 16-18 (Interveners fall to mention that LILCO maintained that an addi-tional reason for a particular element not being tested may have been that it required mandatory participation by the public or by a non-LERO organization; for example, LILCO argued that schools are not part of LERO, and therefore, as part of the public, they could not be mandated to participate.)
106 n. 83 Unjustified inference Tr. 6998-7035 (Colwell, Minor) (Witnesses Colwell and Minor showed a lack of expertise in the area of emergency planning exercises.)
Tr. 7059-78 (Petrone) (Mr. Petrone, despite his prior position as FEMA Region II Director, showed a dearth of substantive knowledge in this area as well.)
16-Intervenor Proposed Findinst" LILCO Response Explanation 106, n.84 Unjustified inference That FEMA never recited the words " Appendix l E" and the standard objectives in the same breath is meaningless. The REPG witnesses listed exercises they considered full participa-tion exercises, s_ee e Tr. 7105-07 (Baranski), for which FEMA came up with the Exercise objec-tives af ter negotiating with New York State from the list of standard FEMA objectives - obviously an approach that the !
NRC accepted as meeting its regulatory re-quirements.
111 Unjustified inference; See L.F. 59-67; N.F. 83-86 (LILCO maLitains, not supported by cita- on the contrary, that there is no Appendix E tion; refuted by record requirement that a NTOL exercise be particu-larly comprehensive, a position that the NRC Staff and FEMA concurred with.) See also N.F.
84 (The statement that "it has been FEMA Re-gion II practice for initial exercises at New York State sites to be as complete as possible" is unsupported by any authority other than In-tervenors' witnesses' conclusory statements.)
112 Unjustified inference; The only authority given for the statement not supported by cita- that other New York State exercises tested tion various "haportant" functions more extensively than at Shoreham is Interveners' witnesses' unsubstantiated testimony. Interveners ignore statements to the contrary in the record. See N.F.18; FEMA EX Exh. 5 at 105 ("The Shoreham Exercise was equal or greater in scope compared to any other full-scale exer- J cise evaluated by FEMA Region 11 to date.") ]
i I
113,n.88 Refuted by record See Tr. 8785 (Schwartz) (Witness did review Contentions EX 15/16 at some point during this proceeding.)
114 Not supported by cita- The correct citation for this statement is Tr.
tion 8852-53 (Weiss).
115 Unjustified inference; See N.F. 33; FEMA EX Exh. 5 at 105 (while not refuted by record stating literally that the Exercise satisfied Ap-pendix E, FEMA concluded this in so many words); Tr. 7501-02, 7524 (Baldwin, Keller, Kowieski)(witnesses did not say they had never attempted to structure an exercise so that it complied with Appendix E, but rather that they had made no attempt to determine for i l
l
)
1 Intervenor Proposed Finding LILCO Response Explanation themselves whether the Exercise was designed in a manner that satisfied Appendix E.)
115, n. 90 Refuted by record See Tr. 8636-37 (Baldwin) (Witnesses' conversa-tions with Mr. Fish were, more precisely, in the context of whether or not the simulation at Shoreham would " test the integrated capa-bility of implementation of the plan" - an Ap-pendix E concept.)
115, n. 91 Unjustified inference; LILCO did not misstate FEMA's position with refuted by record regard to the items listed in this footnote. In-tervenors' viewpoint is colored by its untenable position, which is the thematic thread through its Findings, that FEMA and the NRC are act-ing separately, with no relationship between their actions. With regard to point one: Al-though FEMA does not recite the very words that the Exercise was a " full participation" ex-ercise, they state in their testimony that:
It is FEMA's position that the [ Exercise objectives for Shoreham] required mo-bilization of LILCO's Local Emergency l Response Organization (LERO), its per-
! sonnel and resources in sufficient number to verify the capability to respond to an accident scenario. Fur-thermore, the February 13,1986 exer-cise enabled FEMA to evaluate the l integrated capability and a maior l portion of the basic elements existing i within LILCO Transition Plan and LERO l organization. The Shoreham exercise was equal or greater in scope compared to any other full-scale exercise evalu-ated by FEMA Region II to date.
FEMA EX Exh. 5 at 105 (emphasis added). The clear implication of these words - which con-template the significant operative concepts of the Appendix E " full participation" definition
-is that, in FEMA's view, the Exercise met the various prongs of the NRC's test for full participation exercises. In short, FEM A wit-nesses drew the requisite interim conclusions that necessarily add up to the ultimate conclu-sion that the Exercise was full participation as
! defined by NRC. If FEMA's Testimony bore no l
Intervenor Propared Finding LILCO Response - Explanation relation to the ultimate issue in this proceed-ing, as Interveners would have the Board be-lieve, its testimony would have been struck as irrelevant. During cross-examination, Interve-nors repeatedly attempted to. elicit testimony from FEMA witnesses to the effect that one Plan element or another was a " major observa-ble portion" of the Plan, clearly an attempt to have FEMA opine on the Exercise in terms of Appendix E requirements, and a curious en-deavor in light of Interveners' purported con-viction that FEMA takes and can take no posi-tion on the interpretation of the NRC's regula-tions. I.F.106: NYS EX Exh.1 (Test. Cont. EX 15/16), at 28-30: S_ee, e_.L, Tr. 7544-45 (Keller),
7673 (Kowieski).
With respect to point two: Although neither the GMs nor NUREG-0654 literally refers to Appendix E, it is clear from the citations relied on by LILCO that FEMA witnesses be-lieve both are applicable in shedding light on the ultimate issue in this proceeding. FEMA's testimony in the Contention EX 15/16 proceed-ing contains a discussion of the FEMA GMs, s_ee e l FEMA EX Exh. 5 at 89-90, and during the hear-ing FEMA witnesses made clear that they be-lieve that NUREG-0654 is pertinent to an eval-l uation of the Shoreham Exercise under 10 1 C.F.R. Appendix E, see Tr. 7501 (Kowleski)
("NUREG-0654 is interrelated to 10 C.F.R.
[ Part 50, App. E]"), 7620-21 (Keller) (in an-swer to the question "how does [GM] PR-1 clarify any NRC regulation?" witness Keller replied:
At one time NUREG 0654 was a part of 10 C.F.R. 50 and it was quoted in 10 C.F.R. 50. That was taken out and it is i no longer quoted in 10 C.F.R. 50. How-ever, in the Federal Register notice in the rule change the statement was made that the Commission intended that NUREG 0654 would still be used as the basis for the evaluation of plans both on and ofIsite. . . . [T]o the extent that NUREG 0654 is a regulation, clearly PR-1 does clarify NRC regulations.) )
l l
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I Intervenor W
- Finding ' LILCO Response Explanation With regard to point three: LILCO's statement paraphrases what the FEMA witnesses said.
LILCO nowhere says that this statement by FEMA applied specifically to NRC regulations.
Indeed, LILCO disagrees with Interveners' im-p11 cation that this distinction is important, since under the Memorandum of Understanding it is fair to assume that the NRC and FEMA are coordinating their activities so that exer-cises are of sufficient scope to meet the_ap-propriate regulatory requirements.
-With respect to point four: See reply to Inter-venors'second point. FEMA Guidance states that the 35 objectives may be tested over the course of several years, and it is implicit in FEMA's testimony that this is what they be-lieve the NRC's regulatory scheme requires.
With regard to point five: LILCO's Proposed Findings at page 142 pertain to Contention
-EX 38.I. In any event, at page 125 of its testi-mony, FEMA talks about FEMA's policy re-garding ingestion pathway (i.e., that it need not be tested in every exercise), and it is im-plicit in the testimony that they believe this policy is not inconsistent with NRC full partic-ipation requirements.
With respect to point six: LILCO adheres to its conviction that FEMA's statement is synony-mous with the statement that the Exercise tested the major observable portions of the Plan. If, as they imply, Interveners do not find FEMA witnesses competent to draw this con- .
clusion, it is odd that they repeatedly ask them whether various allegedly omitted Plan ele-ments were " major observable portions" of the Plan. See Tr. 7544-45 (Keller), 7673 (Kowieski). Interveners cannot have it both ways. LILCO's Findings elucidate just how untenable is Interveners' position that the two regulatory schemes are entirely unrelated, thereby ignoring the f act that NRC licensing decisions are based largely upon FEMA findings with regard to the emergency planning exer-cise. See L.F. 44-52.
l
-)
Intervenor Proposed l Finding LILCO Response Explanation i 1
l 117- Unjustified inference See L.F. 60,62; N.F. 83-86 (LILCO and the i NRC Staff dispute the conclusion that there /
are special requirements for NTOLs.)
g 119 Unjustified inference The implication that it is only LILCO's position that the issue is whether the objectives were included in the Exercise and evaluated by FEMA (rather than whether the objectives were met) is misleading. This was FEMA's po-sition, and the Board's, too. See LILCO EX Exh.12 (Test. Cont. EX 15/16), at 6; Tr. 5930 (Frye), 7511 (Keller) (The Board, at the incep-tion of this proceeding said that "as a general .
proposition . . . we are . . . looking at what was tested and not what was demonstrated".)
120 Unjustified inference; See L.F. 72-137; N.F. 49, 52, 53, 59, 63, 64, 67, refuted by record 68, 70, 71, 72, 77, 79, 81, 87. (There are several erroneous statements in Finding 120. First, In-tervenors state, in effect, that LILCO's,
. FEMA's and the Board's interpretation of the precise issue in this proceeding renders Appen- '
dix E " meaningless." This interpretation does not render Appendix E " meaningless," howev-er, in light of the provision in the regulations for remedial exercises. Second, major observa-ble portions of the Plan were n_ot omitted from this Exercise.)
l'22 Unjustified inference See LILCO EX Exh.12 dest. Cont. EX 15/16),
at 21-23 (LILCO distinguishes those objectives that were tested and fully observed by FEMA from those that were not.)
123 Unjustified inference See FEMA EX Exh. I at 3-5 (FEMA had observors in all major f acilities. All or virtu-ally all LERO personnel were evaluated.)
124 Unjustified inference; The term " critical" response personnel is found not supported by cita- nowhere on the record or in the regulations, tion and is thus nowhere defined. To the extent it means anything,it means command and con-trol positions, yet those were all manned dur-ing the Exercise.
126 Unjustified inference See Response to I.F. 59 (The participation of WALK Radio does not involve complex human interaction, but rather is mainly mechanical.)
Intervenor Proposed Finding LILCO Response Explanation 127 Not supported by cita- Fhst, FEMA did not say that it could not verify tion; refuted by record; the capability of schools generally to respond out of context to an emergency, or that there was insufficient demonstration to permit verification that school children could be protected throughout the EPZ. See Tr. 7588 (Baldwin) (FEMA could not verify the capability of schools - other than SWRCSD - to respond based on what transpired at the Exercise),7612 (Keller)
(FEMA did not testify that there was insuffi-cient demonstration to permit verification that school children could be protected throughout the EPZ, but rather simply that FEMA could not extrapolate from what it saw at SWRCSD to the other schools.) Second, FEMA stressed that what the Exercise included with regard to schools was consistent with other Region II exercises. See Tr. 7581-83 (Keller, Kowieski) (It is not normal practice in New York State exercises to contact or evalu-ate every school district; to include only a sin- )
gle school district is consistent with full-scale exercises in New York and New Jersey.)
127,n.94 Out of context; un- See Response to I.F.152, n.110 (Interveners 3 justified inference; repeatedly argue that FEMA cannot and does beyond regulatory not interpret Appendix E, yet they point here requirements to a FEMA GM which, they say, contains a FEMA interpretation of Appendix E require-ments relating to schools. If GM EV-2 inter-prets NRC's Appencix E requirements, then so do the other FEMA GMs.) Tr. 8407-08, 8597-98 (Kowieski); FEMA EX Exh. 7 (Interveners con-clude from their reading of GM-EV-2 that
" FEMA clearly has interpreted Appendix E to require school participation," but they ignore FEMA's statements that school districts in New York State are separate political entities from the State, which the State cannot force to par-ticipate in emergency planning exercises.)
, 128 Unjustified inference NYS Exh. EX.1 (Test. Cont. EX 15/16), at 33 )
(As Interveners themselves point out,"[s]imu- )
lation in exercises is useful and necessary in order to avoid disruption of the public during an exercise.")
l l
l
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l Intervenor -
Proposed Finding LILCO Response Explanation 1
129 Unjustified inference Since the preceding predicates are not true, the conclusion in this paragraph does not fol-low.
130' Unjustified inference; See L.F. 53-58; LILCO EX Exh.12 (Test. Cont.
refuted by record EX 15/16), at 8-9.
132 Refuted by record See L.F. 59-67 (The NRC has licensed plants based on FEMA-conducted exercises; that they do so without questioning FEMA's methodology signifies that, in NRC's view, FEMA practice comports with Appendix E.)
134 Refuted by record See L.F. 72-137; N.F. 87.
135, Refuted by record Interveners' interpretation of Appendix E is 136 untenable, and in effect reads out the word
" major" from the regulations. Interveners argue that every observable portion of a plan is
" major," s,ee Tr. 7219 (Papile), which would render the use of that term in the regulations meaningless. See L.F. 53-58. Moreover, Inter-venors' testimony on what constituted "the major observable portions" was hardly "undis-puted." LILCO's testimony shows that the al-leged omissions would not render the Exercise less than " full participation" since none of them, singly, were " major observable portions" l of the Plan. See LILCO EX Exh.12 (Test.
Cont. EX 15/16), at 30-43. See also L.F. 72-137 (None of the alleged omissions can be so vital to Plan implementation as to render the Exer-cise f atally flawed; rather, the Exercise must be viewed as a whole to determine whether "the major observable portions" of the Plan are tested.) N.F. 49,52,53,59,63,64,67,68,70, 71, 72, 77,79,81,87 (The Exercise tested the major observable portions of the Plan; none of the alleged omissions were f atal.)
136, n. 99 Not supported by cita- Dr. Hockert's testimony was directed precisely tion; unjustified infer- to the issue of what is, and what is not, meant ence; out of context by the term "the major observable portions" of a Plan. See Tr. 6121-33 (Hockert) (The exer-cise must be looked at in toto in order to deter-mine whether or not the major observable por-tions of the plan are exercised; no single objec-tive is, in isolation, a " major observable por-tion".)
q E j Intervenor l
Finding LILCO Response Explanation '
136, n.100 Unjustified inference There is no support for the proposition that one can determine what is a " major observable portion" from simply perusing the number of pages in a plan.'
137 Refuted by record First, LILCO shows, and the NR'C Staff agrees that FEMA GM's are applicable to Appendix E .
determinations. See L.F. 44-52; N.F. 39.' See-ond,it is not true that all the alleged omissions aside from the public information program re-late to standard FEMA objectives. See LILCO -
EX Exh.12 (Test. Cont. EX 15/16), at 31 (Sev-eral of the alleged omissions, e.g., notification of transients, procedures for public education, and monitoring and decontamination of.
evacuees from special f acilities, are not stan-dard FEMA objectives.) Finally, Interveners' interpretation of the phrase " major observable portions" is untenable. See L.F. 53-58.
137,n.101 Unjustified inference; See Tr. 6948-49 (Daverio) (Interveners' testi-refuted by record mony is contradicted by witnesses' statement '
that public information activities do not con-stitute an " observable" portion of a Plan, let alone a " major observable portion".) Tr.
7545-46 (Keller) (The two Region II public in-1 formation objectives referred to are no longer included in Region II exercises.)
I 137,n.102 Out of context; un- See L.F.106,116; FEMA EX Exh. 5 at 125,128; justified inference Tr. 7679 (Keller)(In FEMA's view it is not nec-essary to test recovery / reentry and ingestion pathway in every full-scale exercise.) FEMA EX Exh. 5 at 105 (The Exercise covered "a major portion of the basic elements" of the LILCO Plan.)
138, Refuted by record; un- LILCO and the NRC Staff maintained that the
.139 justified inference "as much as reasonably achievable" language applies to operational and preoperational sites alike. See L.F. 59-63; N.F. 83-86 (There are no special scope requirements for NTOLs.) In-tervenors' argument is internally inconsistent.
If Appendix E means that all Plan elements must be exercised in each and every full-participation exercise, as Interveners contend, then there would be no need for special addi-tional NTOL requirements. The "as much as is reasonably achievable" language would be superfluous.
Intervenor Proposed j Finding LILCO Response Explanation 139, n.104 Refuted by record; out The NRC Staff witness quoted by Interveners of context ultimately rejected the view that there were ;
differing exercise requirements for NTOLs and operating sites. See N.F. 83-86; Tr. 8835-36 (Schwartz) (When asked whether, in his experi-ence, the scope of full participation exercises was different for operating plants and NTOLs, his final answer was "I don't see any differ-ence".)
139, Unjustified inference There is no support in the regulations for the 139,n.105 proposition that special testing should be im-posed on utility plans.
140, Refuted by record; un- See L.F. 64-67 (There is no support for Interve-141 justified inference nors' interpretation in the regulatory history.
Contrary to Interveners' argument, the Com-mission in no way links the operating plant ex-ercise experience mentioned to deletion of the "as much as reasonably achievable" language for operating plant exercises. Its notation of this operating plant exercise experience is in the context only of changing burdensome frequency requirements for operating plants due to the " disproportionate amount of Feder-al, State and local government and licensee resources . . . being expended in order to con-l duct and evaluate annual emergency prepared-ness exercises." 49 Fed. Reg. 27,734-35 (July 6, 1984).)
141,n.106 Refuted by record; un- See L.F. 44-52. At other places, Interveners justified inference accept the proposition that FEMA GMs inter-pret NRC Appendix E requirements. See, e.g.,
I.F.127, n. 94.
142 Refuted by record L.F.105-106,148-155; N.F. 45, 59, 87 (There is every basis for the Board to find that the Exer-
. cise satisfied the first and every other sen-tence of Appendix E.)
145 Refuted by record L.F.104; N.F. 64 (Interveners' testimony con-
. cerning the referenced Appendix E language is I hardly undisputed.)
l 149 Unjustified inference The change from " permissive" to " mandatory" language as described by Interveners is irrele-
[
vant to the meaning of Appendix E's ingestion pathway requirements for NTOLs. The issue is u_______
L u
'Intervenor Proposed Finding LILCO Response Explanation what precisely " participation" by each State within the ingestion pathway EPZ means, not whether these activities - whatever they_ are
- l. - may or must be carried out. Furthermore,
- l. there was no suggestion of such a significant l change as Interveners read into the regulations in the Statement of Considerations prefacing the 1984 amendment to the rule. 49 Fed. _R_eg.
27, 736 (July 6,1984).
150 Refuted by record See L.F.104; N.F. 63; LILCO EX Exh.12 (Test.
Cont. EX 15/16), at 39; Tr. 6851 (Daverio)
(Connecticut has four operating plants; a tele-phone call was sufficient " participation".)
2150, n.107 Unjustified inference Compare I.F. 61 and 73 (Interveners take in-l consistent positions: on the one hand, they argue that a telephone callis not "participa-l tion," yet on the other hand they argue that a 1
telephone callis precisely what should have happened with regard to WALK Radio and the schools.) .
l l
~ 150, n.108 Refuted by record See LILCO EX Exh.12 (Test. Cont. EX 15/16),
at 39 (Nowhere does LILCO say that ingestion pathway testing is "relatively unimportant."
Rather, LILCO's position is that its exclusion from the first exercise is not a fatal flaw.)
152, n.109 Unjustified inference According to Interveners, the fact that none of :
the LILCO or FEMA witnesses had any role de-veloping the FEMA Guidance Memoranda pre-vents them from opining on their import.
However, just as one need not interview Con-gressmen to discern legislative intent, so too, one need not interview the draf tsman of the FEMA GMs in order to discern FEMA's intent.
Indeed, under the Intevenors' view, Interve-nors' witnesses would be unable to opine on the meaning of the Commission's regulations since they did not draf t them.
152, Refuted by record; un- There are many references in the record that b 152, n.110 justified inference support the conclusion that the FEMA GMs
[
provide guidance with respect to NRC's rules, and in particular its full participation require-ment. See L.F. 45-52; N.F. 39; Tr. 7621 l
(Keller)To the extent NUREG-0654 is a regu-lation, GM PR-1 clearly clarifles NRC i
l 1
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c -26 .
Intervenor.
Proposed .
Finding . LILCO Response Explanation
- regulations), 6235-38 (Behr) (reference in GM - 1 PR .1 to the NRC's July 6,1984 final emergen- l cy planning regulation in 10 C.F.R. Part 50 shows that this GM was intended, in part, to convey FEMA's interpretation of the NRC rule.) Although not explicitly stating that it applies to " full participation" requirements, GM PR-1 states on page 1::
With the publication of the final FEMA -
rule,44 CFR 350, on September 28, 1983, and the Nuclear Regulatory Com--
mission (NRC) final regulation,10 CFR 50, on July 6,1984, it has become neces-sary to clarify some of the requirements contained in these rules. . . .
LILCO EX Exh.12 (Test. Cont EX 15/16), at Att. E, p.1 (GM PR-1). -The final NRC regula--
tion of July 6,1984, referred to is the Appen-dix E full participation requirement. Indeed,it-was on July 6,1984, that the definition of " full participation" first appeared in Appendix E.
Tr. 6219-20 (Behr). Thus, contrary to Interve-nors' argument, there is clear intent by FEMA to address the Appendix E full participation definition. What is more, Interveners would have the Board believe that some FEMA GMs interpret Appendix E while others do not.
However, page 8 of GM EV-2 no more states on its face that it is interpreting Appendix E re-quirements than GM PR-1 does. And, not '
unlike GM PR-1, GM EV-2 merely mentions the NRC regulation. Finally, while these FEMA Guidance documents do reflect a FEMA effort -
to provide a uniform approach among the FEMA Regions, the Commission has explicitly endorsed the use of FEMA Guidance Memo-randa in evaluating emergency exercises, in order to ensure that uniform procedures exist for FEMA and NRC to evaluate these exer-cises. See L.F. 51.
153 Unjustified inference See L.F. 39,50,55,56; N.F. 41-42 (The FEM A practice as memorialized in draf t GM EX-3 is entirely consistent with the NRC's regulations as interpreted by LILCO, NRC Staff and
, FEMA. Moreover, NUREG-0654 similarly de-lineates a six-year cycle during which all major
Intervenor Proposed Findinst LILCO Response Explanation Plan elements must be tested. Finally, the lan-guage quoted from draf t .GM EX-3 expresses the same concept as that contained in Appen-dix E.) <
154, n.112 Unjustified inference LILCO's use of the excerpt from page 10 of In-tervenors' testimony is not misleading. As In-tervenors concede, Intervenor witnesses did
- state that II.N. of NUREG-0654 contained "rel-evant data regarding exercises." That state- .
ment was in answer to the question "What NRC regulatory requirements are pertinent to this i matter?" NYS EX Exh.1 (Test. Cont.
EX 15/16), at 7,10. A fair reading of Interve-nors' testimony is that "this matter" refers to the issue in this proceeding, which is the re- ;
quired scope of full participation exercises.
Consequently, Interveners suggest by the quoted remark that NUREG-0654 requirements are relevant to Appendix E determinations.
That the import of this remark might, as a re-sult of unfortunate draf tsmanship, conflict with the Interveners' theory of the case does not make the remark mean other than what it plainly implies.
155 Refuted by record; un- See N.F. 39 (NUREG-0654 is " instructive" and, justified inference along with FEMA regulatory guidance, provides the best authority as to what should be the standard for defining " full participation" for purposes of the NRC regulation.) Interveners dispute that NUREG 0654 is applicable in Ap-pendix E determinations, but they ignore the fact that in the Commission's 1984 rulemaking revising the emergency planning regulations, the Commission reiterated that NUREG-0654 "will continue to be used by reviewers in evaluating the adequacy of emergency pre-paredness at nuclear power reactor sites," de-Spite the deletion at that time of the reference to NUREG-0654 in the footnotes to the regula-tions 49 Fed. Reg. 27,733-34 (July 6,1984). i And, the f act remains that Section II.N. of NUREG-0654 pertains to exercises and pro-vides that all major Plan elements must be tested over the course of several years. LILCO EX Exh.12 (Test. Cont. EX 15/16), at Att. C.
It is irrelevant that the 1980 regulations did not contain a definition of " full scale"
i.
Intervenor i Proposed l Finding LILCO Response Explanation
- exercises at the time NUREG-0654 was adopt- !
ed. In any event, NUREG-0654 was revised by -
I GM PR-1 in 1985, af ter the change in the Com-(. mission's rule adding and defining the term l " full participation"in 1984. See LILCO EX ,
Exh.12 (Test. Cont. EX 15/16), at Att. E, p. 2 (GM PR-1)(GM PR-1 revised the time period specified originally in NUREG-0654 from 5 to 6 years.) ;
155, n.113 Unjustified inference See Response to LF.152, n.109 (Interveners imply that in order to discern the' applicability of NUREG-0654 one would virtually need its draf tsman, with his "first hand" knowledge.
That is clearly not necessary.)
155,- Unjustified inference; See L.F. 50,53-58. NUREG-0654 conflicts only with Interveners' interpretation of the regula-156 refuted by record tions, which LILCO has challenged. Further, NUREG-0654, a joint FEMA-NRC document, was revised by GM PR-1 in 1985, a revision with which the NRC surely must have con-curred given the joint nature of the document.
See LILCO EX Exh.12 (Test. Cont. EX 15/16), i at Att. E, p. 2 (GM PR-1).
157 Unjustified inference Interveners argue that the NRC gave no indi-cation that it considered the scope issue in its 1984 and 1987 rulemakings, and therefore LILCO may not draw any inference from NRC's silence with regard to FEMA's method-ology when it amended the rules. However, that the NRC did not explicitly mention the scope issue in its Statement of Considerations in these rulemakings did not prevent Interve-nors from drawing their own inferences re-garding what the NRC had in mind regarding .
the scope of full participation exercises. See I.F.141. Moreover, the inference LILCO draws in its Proposed Findings 58 and 65-66 is drawn ,
from more than the NRC's silence when revis-ing its regulations. It is drawn from the f act' that the NRC grants licenses based on FEMA findings regarding emergency exercises, and surely it would not do so if it thought FEM A's methodology conflicted with NRC regulations.
See Tr. 6232-33 (Daverio).
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Intervenor.
Proposed Finding LILCO Response Explanation 157,n.116 Refuted by record; un- Contrary to Interveners' analysis, the 1984 justified inference rulemaking discussed by LILCO references more than just the FEMA Modular Format. In its Statement of Considerations the NRC re-fers to the August 5,1983 McLoughlin Memo-randum. That Memorandum sets out in an at-tachment the 35 standard FEMA exercise ob-jectives which are incorporated by reference in GM PR-1. See LILCO EX Exh,12 (Test.
Cont.15/16), at Atts. E., p. 2 (GM PR-1) and F.
GM PR-1is the FEMA GM that specifies that all 35 Exercise objectives must be tested, but only over the course of six years. See L.F. 41.
The significance of this reference by the NRC to the McLoughlin memorandum,is that the Commission cited this FEMA document when concurring with commentators that there was a need for uniform FEMA-NRC exercise evalu-ation procedures. The Commission thus tacitly approved of FEMA's methodology.
In addition, LILCO does not dispute that the Commission's Statement of Considerations in its 1987 rulemaking relates to exercise fre-quency and not to exercise scope. The Com-mission's silence regarding scope is precisely e the thing LILCO relles on when it argues that l had the Commission meant a substantive scope l change for NTOLs when it amended the regula-tions, it would have said so. See L.F. 67. See also N.F. 85. Again, although Interveners main-tain that the Commission's 1984 and 1987 rule-makings imply nothing regarding the scope of exercises, they find scope implications when it suits them. See I.F.141.
158 Unjustified inference Interveners argue that they are interpreting the " plain meaning" of regulations that every-one in this proceeding has been put on notice defy understandable grammar. Interveners themselves point out that one Board member commented during the hearing upon the diffi-culty of interpreting the full participation pro-l vision given the mixed grammatical signals surrounding the phrase "as much as reasonably achievable." LF.138, n.103.
I
)
)
Intervenor Finding . LILCO Response Explanation l 159 Unjustifed inference Interveners imply that LILCO argued that the NRC and FEMA regulations are " essentially identical." Rather, LILCO said only that the two regulatory schemes "contain parallel (albe- l It not identical)" provisions and terminology. j L.F. 48 (emphasis added). See also Tr. 8515 i (Baldwin)(The term " observable portions"in Part 350 means the same as " major observable portions"in Appendix E.) Whether or not 1 FEMA witnesses expressly relied on Appendix j E has nothing whatever to do with whether FEMA and NRC regulations create parallel regulatory processes. As a matter of logic, if l the Exercise complied with FEMA regulations, .;
then it also complied with the NRC's parallel :
regulatory scheme.
] ,
162,- Unjustified inference See L.F. 48 (LILCO does not dispute that there 163, are some differences between FEMA's Part 350 164, regulations and NRC's Part 50 regulations.
165, LILCO only maintains that there are many 166 similarities. Indeed,in Finding 163 Interveners themselves imply that the NRC and FEMA reg-ulations envision an identical group of "por-tions" or " elements" for an exercise to be full participation. Interveners make too much of .
the point that the regulatory schemes are simi-lar in any event. LILCO's position is simply that since the regulations are more similar than dissimilar, FEMA's interpretation of its own regulations might be instructive in inter-preting NRC's rule even g FEMA Guidance were limited by its own terms tg Part 350 (which it is not.) The point Interveners seize upon to quarrel with here is only one of several in support of the proposition that FEMA Guld-ance is in f act instructive in Appendix E deter-minations. LILCO's analysis does not rest on the assumption that the two regulatory schemes are identical.) j 168 Unjustified inference In asking the Board to interpret the "as much '
as reasonably achievable language" of 5 IV. F.1 of 10 C.F.R. Part 50, App. E., to apply only to l NTOLs, and thus to conclude that there are l
more comprehensive scope requirements for i NTOL exercises, Interveners ignore the f act that the Commission's regulations, as originally j adopted in 1980, contained a requirement that '
I
_ _ _ - _ _ _ _ _ _ _ _ _ k
Intervenor i Proposed Finding LILCO Response Explanation offsite exercises for a_Il plants must test "as much of the licensee, State and local emergen-cy plans as is reasonably achievable without mandatory public participation." See L.F. 64.
When the Commission revised the emergency preparedness regulations in 1984 to relax the frequency of full particip& tion exercises for sites with operating licenses, it revised the language in question to read essentially as it appears today. See L.F. 65. There was no in-tent on the part of the Commission to alter the phrase's general applicability or meaning, how-ever. See L.F. 66. Thus, the 1984 revision to the regulations was intended by the Commis-sion merely to change the frequency require-ment for full participation exercises at op-erating plants and not to create additional sub-stantive " scope" requirements for full partici-pation exercises at NTOLS. Interveners wrongly conclude that "first exercises must be particularly complete."
169 Unjustified inference It is irrelevant that LILCO's Plan is a " utility plan." No special category is carved out in Ap-pendix E for " utility" plans. Nowhere is it said in any of the testimony pertaining to Conten-tions EX 15/16 that this makes a difference in i
terms of Appendix E's scope requirements. A l " utility plan,"like any other plan, must meet the requirements of NUREG-0654. Interveners once again take inconsistent positions. They argue with regard to NTOLs that the Board should not go beyond the language of the regu-lations pursuant to a Guard v. NRC literal ap-proach, se_e I.F.132, yet they argue here that Appendix E carves out a special requirement for " utility" plans even through the language in Appendix E says no such thing.
170 Refuted by record Interveners' allegation that the Exercise de-parted from standard FEMA practice "[i]n many instances," including schools, EBS and public information testing, is repeatedly con-tradicted by FEMA and the NRC Staff. See N.F. 55 (schools), 62 (ingestion pathway), 69 i
(recovery / reentry), 74 (bus companies); FEMA l EX Exh. 5 at 112 (public information),116 (schools),125 (ingestion pathway),128 (recov-ery/ reentry): Tr. 8525-26 (Keller) (in many
l l
Intervenor i Propmed Findinst LILCO Response Explanation other FEMA Regions the sirens are sounded and the EBS message is broadcast in a separate FEMA-REP-10 test.) Moreover,it is erroneous to say that these alleged omissions "resulted from LILCO's decisions or its lack of capacity".
When a particular element of the Plan was not tested, it was attributable to reasons beyond LILCO's control. See L.F. 104, 106, 149-54.
In addition,it is not true that Interveners'in-terpretation of Appendix E would require noth-ing new of FEMA with respect to ingestion pathway and recovery / reentry, since ingestion pathway and recovery / reentry have been test-ed (and evaluated by FEMA)in only the most minimal fashion in the past, and have not re-cently been tested due to a lack of federal guidance. See Response to I.F. 91; L.F.116; N.F. 61, 69.
170, n.124 Refuted by record; un- There is no basis for the statement that inges-justified inference tion pathway and recovery / reentry were " test-ed at least to a degree at other plants"in the context of NTOL exercises. Interveners them-selves admitted that no full participation exer- I cises for NTOLs have been held in Region II since the emergency planning regulations were enacted, and the only evidence as to what was done at other NTOLs was struck by the Board at Interveners' request. See Tr. 6081-85 (Lanpher), 6090-91 (Frye), 7047, 7232 (Baranski, Czech, Papile).
173 Out of context Although NRC Staff witnesses had no first-hand knowledge that the NRC RAC member reviewed the Shoreham objectives in light of Appendix E requirements, they testified that they have general knowledge of the RAC pro-cess and believed that process was followed here.) See Tr. 8804-05 (Weiss)(although NRC Staff witnesses did not speak with the NRC Region I personnel that reviewed the draf t Shoreham objectives, the witnesses did receive j and review a copy of the comments written by i the NRC RAC member on the Shoreham objec- I tives that were sent to Mr. Kowieski),8813 (Weiss)(although the witness had no knowledge of the particular details, he believed that the normal RAC process had taken place for l
l
l Intervenor Proposed Finding LILCO Response Explanation Shoreham), 8846, 8862-64 (Schwartz) (witness had no reason to doubt that the regular RAC process was followed for the Shoreham objec-tives.) g 1
175 Unjustified inference The NRC Staff witnesses were competent to draw the conclusion that the Shoreham Exer-cise satisfied NRC requirements. Tr. 8834-35. ,,
(Schwartz)(Witness Schwartz testified that he had attended between 15 and 20 exercises, not ,,
including Shoreham, and that for one or two of f1 #
these he had been part of the NRC evaluation team.) Tr. 8835 (Weiss)(Witness Weiss had also ,
attended various emergency planning exercises ~ ~ -
as an observor.) Tr. 8846-47 (Schwartz) (Wit-ness Schwartz testified that he had experience in understanding the normal RAC process that ensues as a result of an emergency exercise at a nuclear plant. Further, witness Schwartz testified that as Deputy Director of the divi-sion responsible for emergency planning and preparedness he was briefed by the Staff Mem- ,.
ber responsible for in-depth review of the 1 LILCO Plan, and thus, while he did not have .
detailed knowledge regarding the imple- E> -
mentation of the Plan, he did have knowledge of the substance of the Plan.) Tr. 8852 (WeL%)
t (Finally, witness Weiss testified that he was in-volved in the design of the Exercise.)
177 Unjustified inference S_ee e Response to I.F. 50, 52; L.F. 53, 55-57, 72; N.F. 27-30; FEMA EX Exh. I at 2; Tr. 8642-43 (Kowieski)(When NRC requested that FEMA conduct the Exercise,it recognized that limi-tations on LILCO's legal authority might pre-vent the Exercise from being " full" only from the standpoint of State and local government participation, and directed FEMA to conduct an exercise as full as feasible without such participation, pursuant to Option 2. Option 2 y provided for an exercise that would include "all '
functions and normal exercise objectives."
LILCO did test major portions of its Plan, and thus fulfilled the parameters of the Exercise contemplated in Option 2. The legal authority concerns raised by LILCO, s_ee e L.F. 148-155, are not used to excuse non-compliance with Appendix E, but rather to show that the Exer-cise tested as much of the Plan as was
Intervenor Proposed p Finding _, LILCO Response Explanation
" reasonably achievable," in compliance with Appendix E.)
178 Refuted by record LILCO did, in fact, offer " justification" for the lack of WALK participation in the Exercise.
See Tr. 6847 (Daverio) (Daverio said that while he himself did not personally communicate with WALK, and therefore did not know the details of its decision, the hostile political and legal climate resulting from the Suffolk County law "would have had something to do with whether WALK wanted to interf ace with LERO".)
179 Refuted by record S_ee e L.F. 72-77 (Nowhere does L1LCO say that it was " unimportant" that the EBS was not fully tested. Rather, LILCO maintained that none of the alleged omissions, including the ac-tual EBS broadcast, were so vital to Plan im-plementation that they rendered the Exercise f atally flawed.)
180 Not supported by cita- L.F. 53-58; 72-77; N.F. 49 (There is no cita-tion; refuted by record tional support for the proposition that EBS ac-tivities (alone) constitute "a major observable portion" of the Plan. The EBS activities de-scribed as being omitted from the Exercise do not in f act constitute "a major observable por-tion" of the Plan, or compel a finding of non-compliance with Appendix E.)
181, Beyond regulatory re- FEMA REP-10 specifically allows simulation 181, n.128 quirements; out of con- during an exercise. See LILCO EX Exh.12 text; refuted by record (Test. Cont. EX 15/16), at Att. M, p. N-2.
Moreover, at least one FEMA witness testified on cross that a separate FEMA REP-10 test wherein the mechanical aspects of the notifi-cation system were tested would satisty the Exercise objectives for demonstrating the abil-ity to alert the public in a timely manner. See Tr. 8378 (Baldwin). And, in Interveners' own testimony, they point out that FEMA witness Keller had expressed the view that the sound-ing of sirens and the broadcast of a sample EBS message are not major components of a plan and need not be a part of a full participation exercise. See NYS EX Exh.1 (Test Cont.
EX 15/16), at 46. What is more, FEMA wit-nesses also testified that in at least one
Intervenor.
Proposed Finding LILCO Response Explanation Region II exercise the sirens were not sounded, and that of tentimes in other Regions the sirens are not sounded and the EBS message is not broadcast. See Tr. 8379, 8525-26 (Keller).
Thus, the need to test the " Integrated capabili-ty" of the public notification system cannot be that important in FEMA's view generally, and, to the extent some of the FEMA witnesses held this view, it conflicts with FEMA-REP 10.
Further, contrary to Interveners' accusation that LILCO did not accurately summarize the testimony, witness Keller testified that FEMA would prefer that the sirens be sounded "as an integrated thing in an exercise" in order to be-consistent with what FEMA Region II had done in the past, but not because it was an omission that FEMA felt would render an exercise fatal-ly flawed. See Tr. 8525 (Keller).
181, n.129 Unjustified inference See LILCO EX. Exh.12 (Test. Cont. EX 15/16),
at Att. M, p. N-2, N-3 (Interveners misperceive what occurs during a FEMA REP-10 test.
FEMA REP-10 envisions that one may_ test the pubile notification system in a two-step pro-cess, which consists of a combination of an ex-ercise, in which siren sounding may be simulat-ed, and a separate test of the mechanical ca-pabilities of the system.)
182, Unjustified inference If FEMA believed that the " human interaction" 183 aspect of broadcasting an EBS message so tran-scended the realm of the merely mechanical, they would evaluate the performance of EBS radio station personnel in all of its exercises.
It does not normally do this, however, as Inter-venors concede.
184 Unjustified inference; What was done at the Exercise is sufficient beyond regulatory re- under FEMA REP-10. FEMA REP-10 states quirements; outside the that "[a] satisfactory exercise of an alert de-scope of the conten- cision implementing chain can occur up to the l tions point of actually activating the alert and noti-fication system." LILCO EX Exh.12 (Test.
Cont. EX 15/16), at Att. M, p. N-2. Interve-nors read something into this guidance that is not there when they say that it is " clear" that even when sirens and the EBS broadcast are simulated there must be actual mobilization of the EBS radio station personnel. This is an
Intervenor Proposed Finding LILCO Response Explanation argument created by Interveners af ter the Ex-ercise. One never needs to " mobilize" radio station personnel - the station is manned 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day,365 days of the year. See PID at 763-64. Finally, the last sentence goes to the ..
merits of FEMA's review, and is beyond the scope of these contentions.
184, n.132 Unjustified inference See Response to I.F.181, n.129. Interveners misperceive what constitutes a FEMA REP-10 .
l test.
185 Unjustified inference See L.F. 76.
186 Refuted by record; un- LILCO does not suggest that any activities justified inference; out relating to school preparedness are "insignifi-of context cant," but rather that the alleged omissions in that regard do not render the Exercise fatally flawed. Moreover, Interveners take FEMA's testimony out of context and twist its mean-ing. FEMA witnesses emphasized that they were no.t testifying that there was insufficient demonstration during the Exercise to permit verification that school children could be pro-tected throughout the EPZ, but rather that they could not extrapolate from what they saw at the SWRCSD to other schools. Tr. 7612 (Keller).
187 Unjustified inference; See PID,21 NRC at 858 (LILCO assumes only evidence used beyond that since schools have their own emergency people of admission plans and do not rely on LERO resources for sheltering, early dismissal, and evacuation, school preparedness need not be thoroughly ex-ercised.) See L.F.98-102; N.F. 56 (Interveners ignore that which was done at the Exercise in order to test school preparedness.) See Re-sponse to I.F. 60, n.49 (Once again, Interveners' use of post exercise assessments from other exercises goes too f ar.)
188 Unjustified inference; Response to I.F. 71, 72,186; L.F. 98, 99,101, refuted by record 102; N.F. 54-59 (There is much on the record refuting that the alleged o~ missions with regard to school preparedness constitute a f atal flaw in the Exercise.) See Tr. 8407-08, 8597-98 (Kowieski); FEMA EX Exh. 7. FEMA agreed with the view that schools are the "public,"
and that school districts are separate political
Intervenor Proposed Finding LILCO Response Explanation entities from the State, which the State cannot force to participate in emergency planning ex-ercises.
l l 189 Refuted by record; un- Response to I.F.188; LILCO EX Exh.12 (Test.
justified inference Cont.15/16), at 38 (LILCO did not urge that it was acceptable that only the SWRCSD partici-pated since LILCO has committed in the future that all schools will participate, but rather l paraphrased the RAC Report issued on December 15,1986, which concluded that LILCO's commitment to include other schools in future exercises is an adequate response to this Exercise. As stated in the Response tc I.F.
188, LILCO maintains that the Exercise satisfied the requirements of Appendix E and that the scope of the Exercise was not defi-cient.)
190 Relitigation of planning See PID,21 NRC at 858-60,862-66,870-71; issues N.F. 54 (The extent of school participation was a planning issue, dealt with by the Board in its PartialInitial Decision.) See LILCO EX Exh.
12 (Test Cont. EX 15/16), at 38 (It has been re-solved that if Shoreham is licensed, school dis-tricts other than SWRCSD will participate in emergency planning.)
191 Unjustified inference LILCO's use of the phrase "demonstrat[ing]
ample resources to effect an evacuation"is synonymous with the concept of possessing the capability to implement an evacuation.
192 Unjustified inference; As noted in the Response to I.F. 78, LERO did refuted by record actually contact special facilities.
193, Outside the scope of the This finding goes to the merits of FEMA's re-194 contentions view, and it thus beyond the scope of the con-tentions. Also, Interveners make no attempt to argue that these allegedly omitted activities are " major observable portions" of the Plan.
196 Out of context Interveners mischaracterize Dr. Hockert's tes-timony. See Tr. 6127-28 (Hockert) (while Dr.
Hockert said that the IEAL Report was not specifically designed to define what had to be tested to satisfy Appendix E, he qualified the statement by saying that there was a good deal of discussion between him and NRC and FEMA
Intervenor Proposed Finding LILCO Response Explanation Staff members about what objectives were to be tested in all exercises), 6176 (Hockert) (al-though Dr. Hockert said he did not give any specific attention to first exercises, his report did encompass the the first exercise for a nu-clear power plant. There was no need for the Hockert Report to focus specifically on first exercises.) See L.F. 59-67 (There is no distine-tion between the requirements applicable to NTOLs and to operational sites.)
196,n.135 Unjustified inference; See Tr. 6101-02 (Hockert)(Although Dr.
not supported by cita- Hockert said that neither the NRC nor FEMA tion had relied on the Hockert report, to his direct knowledge, this does not support the Interve-nors' conclusion, for which there is no citation, that "it is clear . . . that the Hockert Report has not been relied upon by FEMA".) More-over, that FEMA's actions or guidance may not exactly comport with the Hockert Report does not eviscerate its usefulness as a tool in Ap-pendix E determinations.
198, Unjustified inference; Contrary to Interveners' statement, neither 198,n.138 refuted by record Dr. Hockert's Report nor his testimony sug-gests that ingestion pathway activities (or any other single Plan element) would constitute "a major observable portion" of the LILCO Plan.
According to Dr. Hockert, specific aspects of a plan may not be characterized, in isolation, as major observable portions; rather, an exercise must be looked at in toto in order to determine whether or not the major observable portions of a plan are exercised. See Tr. 6126,6130, 6132-34 (Hockert). Indeed, when specifically asked the very question,"Does the ingestion pathway constitute a major observable portion of the emergency plan?" Dr. Hockert replied:
"[T]here is probably no single objective that is an absolute must." Tr. 6120-21 (Hockert).
When asked again, "But doesn't the Hockert Report at least implicitly support the view that ingestion pathway testing is very impor-tant?" Dr. Hockert replied: "It is very impor-tant, and it should be done most frequently, but it does not necessarily support the view that its omission constitutes a f ailure to test the major observable portion." Tr. 6133 (Hockert).
Intervenor Proposed Finding LILCO Response Explanation 199 Unjustified inference; See L.F. 55-58,103-107 (Interveners miscon-refuted by record strue both Dr. Hockert's testimony and Appen-dix E's requirements. Neither ingestion path-way activities nor any other single aspect of a plan constitutes a " major observable portion" of a plan, and the omission of ingestion path-way activities from an exercise is clearly not "f atal" under Appendix E.)
199,n.139 Refuted by record; un- The Board summed up Dr. Hockert's theory, a justified reference summation with which he concurred, as fol-lows: "he has developed a group of weighting f actors such that if you add up all the weighting f actors of the objectives that were tested, you can tell whether the exercise as a whole tested the major observable portions of the Plan . . . But he can't tell you about any one objective, because there is none of them, not any one of them, that sums up to a major observable portion of the Plan." Tr. 6133-34 (Hockert, Shon).
200 Refuted by record; un- Tr. 6172 (Hockert)(Dr. Hockert testified that justified inference there could be a "f air" difference in results de-pending upon how one treats partial credit, not that the results could be "significantly" differ-ent.)
201 Refuted by record See Tr. 6932-34 (Daverio) (Two nursing homes, Shoreham-Wading River Central School Dis-trict, and a bus company all actually received telephone calls during the Exercise.) To under-stand whether a given objective was tested, one needs to refer to the " Points of Review."
This paragraph makes no attempt to do this.
Instead, Interveners ask the Board to accept their definition of given objectives.
202 Unjustified inference Tr. 6113-16 (Hockert)(Dr. Hockert showed that FEMA's " thinking" and the Hockert Report need not be viewed as inconsistent. He testified that he could distinguish FEMA's
" categorization"in draf t GM EX-3 from FEMA's general " thinking," since one could categorize an objective as needing to be dem-onstrated more frequently per the GM EX-3
" core" objectives on the basis of things other than importance. And he said, there may be reasons why one would not test a particular
Intervenor Proposed Finding LILCO Response Explanation "very important" objective, such as certain in-gestion pathway activities, most frequently.)
See L.F. 68; I.F.100, n. 77; Tr. 8895, 8902 (Simon) (In any event, regardless of precise consistency with FEMA thinking, the Hockert Report data have every indication of reliability. They were based on information I
given by emergency planning experts and were interpreted by Dr. Hockert, who had the un-questionable competence to do so, using a methodology that was valid.)
II. Contention EX 21: Sample Size 205, Refuted by record; un- See L.F.144-47,168-79,182, 243-46; N.F. 98; 205, n.144 justified inference LILCO EX Exh.12 (Test Cont. EX 15/16), at 35-38, 41-42; (FEM A's observation of bus driv-ers, school evacuation plans, ambulance op-erations, impediments, and evacuation of spe-cial facility residents was sufficient to draw meaningful conclusions relating to these vari-ous activities, and the testing of these activi-ties was sufficient.)
207 Unjustified inference See LILCO EX Exh. 21 (Test. Cont. EX 21), at 3-4 (The implication that LILCO focused on the entire emergency response function as a mere-ly strategical maneuver, and that LILCO con-cedes it would lose Contention EX 21 if the Board were to focus instead only on the final field check,is simply wrong. LILCO should not be bound by Interveners' too-narrow definition of the relevant issue. What is more, LILCO's witness did not say that the final field check should be ignored, as Interveners imply, but rather that the relevant focus is FEMA's re-view of the entire emergency response func-tion, which includes, but is not limited to, the final field check.)
208 Beyond regulatory re- See L.F.159; N.F. 97; Tr. 7294, 7300-03 quirements; refuted by (Daverio),8480 (Kowieski) (Although FEMA, record; out of context NRC Staff and LILCO witnesses concede that FEMA did not use the concept of " statistically significant" samples in determining the size of the sample it would observe at exercises, and that small samples produce results that are
Intervenor Proposed Finding LILCO Response Explanation subject to wide statistical variation, all con-cluded that FEMA need not observe "statisti-cally significant" samples in order to draw valid conclusions about LERO's ability to per-form given functions during an emergency, and that the regulations do not require a "statisti-cally valid" methodology.)
209 Unjustified inference; See L.F.145-47; N.F. 87,98, 99; LILCO EX refuted by record; be- Exh. 21 (Test. Cont. EX 21), at 3-4; FEMA EX yond regulatory require- Exh. 5 at 141; Tr. 7584, 7851-55 (Keller),
ments 7687-89, 7693-95, 8476-80, 8487-92 (Kowieski),
8490-91 (Baldwin), 8582-83 (Baldwin, Keller, Kowieski), 7294, 7298-300, 7336-38 (Daverio)
(LILCO, NRC Staff and FEMA witnesses all concluded that LERO mobilized its personnel and resources "in sufficient numbers to verify the capability to respond to the actions re-quired by the accident scenario" within the meaning of Appendix E; that the sample sizes chosen were consistent with FEMA's practice for other Region Il exercises, including for the l schools; that the magnitude of its observation of the Shoreham Exercise was equal to or greater than that of other FEMA Region II ex-ercises; that Appendix E does not require "sta-tistically valld" observation samples; that given the comprehensive context of FEMA's observation of the overall Exercise, FEMA's t use of random samples to review the last group of field activities is appropriate; that the size of the samples chosen by FEMA, an expert 1
) agency f amiliar with the Plan and Procedures and the number of Staging Areas, was adequate l
to draw meaningful conclusions in terms of
" reasonable assurance" regarding LERO's per-formance; and finally, that FEMA's expert judgment regarding what a meaningful sample ,
would be, in addition to the random selection of LILCO personnel to be evaluated, and the use of free play messages, ensured that the samples evaluated by FEMA were sufficient.)
210,n.147 Unjustified inference Tr. 7994 (Keller), 7997 (Keller, Kowieski) (The l witness did not say that as far as FEMA knows, LILCO chose its best drivers, but rather that FEMA did not effectively preclude LERO from l
choosing its best drivers and it could be possi- ,
I ble that LERO did choose its best route alert I drivers.)
I l
L --- i
Intervenor Proposed Finding LILCO Response Explanation 211l Unjustified inierence See N.F. 95; Tr. 7300-03 (Daverio), 8480, 8487-89 (Kowieski)(Appendix E does not re .
quire any type of statistical verification of re-sponse capability.)
212' Unjustified inference; See N.F. 98-99; Tr. 8477 (Kowieski) (The sam-refuted by record pies FEMA used for route alert drivers and am-bulances/ambulettes were adequate bases for FEMA to draw meaningful conclusions regard-ing LERO's performance; on average, these samples were greater than those at cther exer-cises.)
213,214 Unjustified inference; See L.F.159-161; N.F. 87, 91, 97, 98,100; refuted by _ record LILCO EX Exh. 21 (Test. Cont. EX 21), at 3-8.
IIL Contention EX 41.A. B. E: Roadway Impediments
.216' Refuted by record Tr.1135-42 (Dormer, McGuire, Michel, Roberts) (Interveners' witnesses were neither "especially well quallfled" nor of "particular help to the Board" and their testimony is not entitled to " greater weight." None had person-ally witnessed LERO's response to the impedi-ments, none had previously witnessed a graded exercise, and none had any experience in emergency planning for nuclear power plants.
The witnesses also admitted that they had not '
reviewed many of the Exercise documents and that the documents they did review were se-lected for them by counsel.) Tr. 1143-47 (Dor- i mer, McGuire, Roberts), 1182-83 (Dormer, j Michel, Roberts) (The witnesses demonstrated i a lack of detailed knowledge of the Plan and were unable to define the term " Deficiency" as l It is used by FEMA.) {
216, n.150 Refuted by record; un- LILCO Test. Cont. EX 41, ff. Tr. 272, at 1-2; j justified inference LILCO EX Exh.1 (The record clearly estab- '
lishes that the expertise of Mr. Lieberman, who is the principal architect of the traffic portions of the LILCO Plan and who is inti-mately f amiliar with all its details, f ar eclipses the combined experience of Interveners' wit-
. nesses. Interveners' assertion that Mr.
Lieberman lacks " practical" knowledge is base-less. For instance, it is irrelevant that Mr.
-- __-_ _ ___ _ _ _ a
Intervenor Proposed Finding LILCO Response Explanation Lieberman "had never attempted to reroute traffic around an actual roadway impediment" since he clearly has demonstrated that he knows how to direct and reroute traffic.) PID at 783 (in the earlier proceeding, the Board recognized Mr. Lieberman as an " expert" who
" demonstrated impressive knowledge" of the DYNEV model on which the LILCO evacuation time estimates are based. Mr. Lieberman's tes-timony in this proceeding repeatedly con-firmed this assessment.)
217,n.151 No citation; refuted by See L.F.186-246; N.F.163-197 (The assertion record that LILCO's Proposed Findings were "fre- i quently unhelpful," that " data of ten were miss-ing," and that it was " difficult to develop a us-able chronology" is erroneous and finds no sup-port in the record. On the contrary, and as Staff apparently recognized in adopting LILCO's chronology with few changes, LILCO's findings provide the complete and integrated account which is needed to properly describe the many interrelated events which affected LERO's response to the impediments. As a consequence, LILCO's findings stand in sharp contrast to Interveners' " chronology", which is fragmented and transparently self-serving.) ,
218 Unjustified inference Tr. 8177-81 (Keller, Kowieski) (FEMA testified only that it " generally agreed" with the mat-ters stated in Contention EX 41 itself; FEMA did not say that it agreed with the " Govern- l ments' assessment" or, as is implied, with the Government's testimony on Contention EX 41.) 4 219 Out of context; un- Tr. 407-08 (Weismantle), 408 (Wilm) (The state-justified inference; not ments that performance could have been more supported by citation effective and that "better judgment" could have been exercised referred to a single indi-vidual, not to the entire LERO staff.) Tr. 303-04,306 (Lieberman)(The claim that LILCO conceded that "better intra-organizational l communication could have been achieved" is i unjustified and unsupported; Mr. Lieberman only said that in a specific instance one indi-vidual could have fed information upwards more " expeditiously".)
._ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ a
1 i
Intervenor Proposed Finding _ LILCO Response Explanation 220 Unjustified inference; See L.F.186-240 (LILCO is under no obligation refuted by record to offer any contentions to rebut FEMA's nega-tive findings. Moreover, LILCO has rebutted FEMA's findings on the record.)
221 Refuted by record See L.F. 239-40.
221, n.152 Relitigation of planning PID at 795-98 (The assertion that " serious" ac-issues; out of context cidents within the "first hour" of evacuation are likely and the claim that LERO "must dem-onstrate that it is capable of dealing with such impediments" is an oblique attempt to revisit EP Contention 66 from the earlier planning lit-igation,in which the Board found that LILCO's plans for clearing roadway impediments were !
reasonable.) Tr. 414-418 (Lieberman) (In re-sponse to a hypothetical inquiry, Mr. i Lieberman responded that relatively severe ac-cidents are a " possibility, certainly" but that the probability was "very, very small." Since '
an evacuation did not actually take place dur-ing the Exercise, there is no f actual basis on !
which to reopen this issue.)
222 Relitigation of planning PID at 716-25; se_e N.F.157-58 (Interveners' issues; refuted by record persistence in separating the Road Crew mobi- !
l lization sequence into stages is an attempt to {
l relitigate EP Contention 27. The Board's con-l clusion on EP Contention 27 focused on the '
total time it would take for the LERO emer-gency field workers to mobilize. The Board '
noted that the " principal tasks to be accom-plished in mobilization af ter notification are the initial trip by emergency workers to staging areas, the briefing and issuance of equipment at staging areas, and the movement of workers to their emergency duty posts."
Significantly, the Board considered all of these steps together when evaluating the mobiliza-tion process. Noting that "[a]s mobilization progresses, there will be workers in each group," the Board found that "[i] t is . . . incor-rect, as the County urges, to simply add the times required to fully accomplish each task.
Essential operations will take place simulta-neously, not sequentially." The Board went on to conclude that "LILCO could substantially complete its mobilization in about 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />."
Interveners' insistence on judging the
Intervenor Proposed Finding LILCO Response Explanation
" timeliness" of each stage in the mobilization process is a tactic that they have adopted in order to pick through the record and identify irrelevant intermediate response times which they then labelinadequate. In choosing to as-I sess the timeliness of the Road Crews' response i
by referencing certain times from the day of I
the Exercise, Interveners ignore the only perti-nent inquiry, whether the overall mobilization process was achieved in a manner adequate to protect public health and safety. Interveners have used their testimony on " intermediate" times to avoid confronting the only pertinent evidence regarding Exercise mobilization times: within 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> and 9 minutes of the Site Area Emergency declaration at 8:19,8 Road Crews were in the field, ready to respond to impediments. The Board's earlier estimate has been confirmed by the results of the Exercise.
Staff agrees.) Tr. 8154 (Keller)(FEMA ac-knowledged that the proper criterion for judging timeliness was the "about 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />" esti-mate set in the PID.)
224, n.155 Refuted by record Plan at Figure 3.3.4; OPIP 3.3.3, Att.1, p. 2 of 3 (The Plan and Procedures clearly indicate that no Road Crews are placed on " standby sta-tus"; all Crews report for duty upon declara-tion of a Site Area Emergency. The statement that "there was no evidence that this was the case; indeed, the evidence is to the contrary" is a non seaulter.)
225 Relitigation of planning S_ee e Response to I.F. 222 (The status of the issues; refuted by record Road Crews as of 9:00 is not relevant to the in-quiry of whether overall mobilization was achieved in a manner adequate to protect pub-lic health and safety. The time 9:00 has no in-dependent significance and is unrelated to whether the Road Crews "substantially mobi-lized" in "about 3-hours".) Plan at 4.4-3: OPIP 3.6.3, Att. 8 (The parenthetical statements that 10 Road Crew members are required at Riverhead,14 at Port Jefferson, and 14 at Patchogue are misleading; only 8 members are required at each Staging Area to fully man the tow trucks.)
Intrrvenor Proposed Finding LILCO Response Explanation 226 Religitation of planning See Response to I.F. 222 (The status of the issues Road Crews as of 9:40 is not relevant to the in-quiry of whether overall mobilization was achieved in a manner adequate to protect pub-lic health and safety. The time 9:40, when the General Emergency was declared, is an Exer-cise artifact which does not bear on whether the overall mobilization was timely.)
226, n.156 Relitigation of planning See Response to I.F. 222 (FEMA's opinion that issues; refuted by "40 or 50 percent" of the Road Crews should record; not supported by have been at the Staging Areas by about 9:40 is citation irrelevant; the timeliness of overall mobiliza-tion is the pertinent issue.) Tr. 8160 (Kowieski)
(In any event, the witness later noted that, as of 9:40, approximately "40 to 50 percent" of the Road Crews were at the Staging Areas.)
Tr. 8158 (Kowieski)(The claim that the FEMA witness found LERO's mobilization rate "seri-ously deficient" as of 9:40 is not supported by the citation.)
226, n.157 Relitigation of planning PID at 809-11; s_e_e N.F.157; LILCO Test. Cont.
Issues; not supported by EX 41, ff. Tr. 272, at 22-23; Tr.1060-62 citation (Lieberman, Weismantle) (Interveners attempt to rebut LILCO's position that 12 tow trucks are "far in excess" of the number needed to re-spond to the anticipated number of accidents by citing a portion of the Plan that calls for 12 Road Crews. As noted by the Board in the ear-lier proceeding, the " twelve road crews specified in the Plan were selected on the basis of two considerations: first, the number of ob-structions likely to need clearing, and second, the time needed to clear a given obstruction."
Further, the Board accepted LILCO's estimate that four accidents would occur during an evacuation and that not all would require tow truck assistance. Twelve road crews clearly represent, then, more than enough; the argu-ment that LERO must dispatch all 12 in order to ensure public health and safety ignores the Board's finding on the number of vehicles ex-pected to require assistance and implicitly denies LILCO the flexibility to provide for ad-ditional Crews in its Procedures. The conclu-sion that dispatching only some Road Crews is
" unacceptable"is wrong and an attempt to relitigate a planning issue. Staff agrees that
Intervenor Proposed Finding LILCO Response Explanation 12 Road Crews are more than enough to deal with the expected number of accidents.) See Response to I.F. 221, n.152 (The conclusion that seriou:; accidents will take place early in the evacuation process revisits a planning issue l and is not supported by the citation.)
l 227 Relitigation of planning See Response to I.F. 222.
issues 228 Refuted by record Tr.1766, 2053 (Weismantle) (Interveners' spec-ulation has no f actual basis in the record.
Moreover, while LERO workers were aware of the Exercise date, they had no idea of the spe-cific time they would be called out.)
229 Religitation of planning See Response to I.F. 222 (Interveners' " con-issues; refuted by cerns" that Road Crews were not "promptly record; unjustified in- dispatched"is another attempt to relitigate a ference planning issue.) PID at 718, 723-25 (The re-quired activities at Staging Areas have been examined and resolved in LILCO's favor.) OPIP 3.6.3 (The plain terms of the Procedures refute the insinuation that Road Crews should have been dispatched before the evacuation recom-mendation.)
229, n.159 Relitigation of planning See Response to I.F. 222 (The alleged " delays" issues; refuted by in dispatching the Road Crews is another at-record; not supported by tempt to relitigate EP Contention 27.) PID at citation 718, 723-25; OPIP 3.6.3, Att. 2 (The description of Staging Area activities is not altogether correct and is not supported by the citations given to OPIP 3.6.3 or to "Lieberman e_t al."
Further, the specific issue of activities con-ducted at Staging Areas has been previously re-solved in LILCO's favor.)
229,n.160 Relitigation of planning See Response to I.F. 222.
issues 230 Relitigation of planning See Response to I.F. 222.
issues 231 Relitigation of planning See Response to I.F. 222.
issues
t
-Intervenor Proposed Finding - LILCO Response Explanation 231,n.162 Unjustified inference; Tr. 395-97 (Weismantle), 358 (Wilm) (Interve-refuted by record nors have created a post hoc fiction, for which there is no evidence in the record. Road Crews are equipped with radios and are "on call" once dispatched and, hence, do not need to be at their field positions in order to re-spond to an impediment. Further, while Road Crews are assigned to predetermined de-ployment locations, they are available to re-spond to any impediment throughout the EPZ if so requested.)
232 Relitigation of planning See Response to I.F. 222 (The alleged delays in issues; refuted by record dispatching the Port Jefferson Road Crews are irrelevant since their overall mobilizatic was timely.) See Response _to LF. 231, n.162 (Any Road Crew, not just those from Port Jefferson, could have been called on to respond to the im-pediment.)
232,n.163 Unjustified inference; See Response to I.F. 231, n.162 (Under the refuted by record Plan, tow trucks are fungible and are not " des-ignated" to respond to a particular impedi-ment. Interveners' claim that "a timely re-sponse to the fuel truck impediment by this Road Crew was impossible" is, even if true, ,
irrelevant. If Road Crew 2011 had been I unavailable to respond to the fuel truck imped-iment, another Road Crew could readily have been called upon to respond.)
233 Relitigation of planning See Response to I.F. 222. j issues 233,n.164 Relitigation of planning See Reponse to LF. 221, n.152 (LILCO has not issues; not supported by " conceded" that major accidents are "likely to citation occur" during the first hour of an evacuation.)
PID at 716-25; s_e_e N.F.153-54; Tr. 418 1 (Lieberman),982 (Weismantle)(The claim that i the Road Crews were not in the field "when i they were most needed"is not supported by the 1 citations and is an attempt to revisit EP Con-tention 27. Moreover, Staff agrees that Road Crews need not be in the field when the evacu-ation order issues and that, during the Exer-cise, more than enough Road Crews were al- <
ways in place to respond.)
l
_.-___-__---___.__-____m_-_.___ __
Intervenor Proposed Finding LILCO Response Explanation 233,n.165 Refuted by record; not PID at 716-25; s_ee L.F.192-96; LILCO Test supported by citation Cont. EX 41, ff. Tr. 272, at 22-23 (The asser-tion that LILCO " implicitly conceded" that it f alled to "substantially" mobilize its Road Crews"in about 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> is refuted by the record and not supported by the citations; 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> and 9 minutes af ter the declaration of a Site Area Emergency,8 crews were in the field. While it is true that as of exactly 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> af ter the declaration of a Site Area Emergency only 4 Road Crews had been dis-patched,9 minutes later 8 crews were in the field. The Board's conclusion was a flexible one, finding that LILCO could "substantially" complete its mobilization "in about 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />."
LERO has demonstrated that it can meet that estimate in a manner adequate to protect pub-lic health and safety.)
234 Relitigation of planning S_gte Response to I.F. 222 (Interveners assert issues; unjustified infer- that it "took substantial time" for Road Crews ence to reach their pre-designated field locations but disingenuously give as their only example Road Crew 2011, one of the Crews that trav-eled to Brentwood to pick up their assigned ve-hicle af ter leaving the Port Jefferson Staging Area. More importantly, the time taken by the Road Crews to travel from Staging Areas to field locations is not relevant to whether their overall mobilization was achieved in a manner adequate to protect public health and safety.)
See Response to I.F. 297 (In addition, Interve-nors erroneously imply that Road Crew 2011's alleged delay in arriving at its field location was responsible.for an untimely response to the fuel truck impediment. In f act, LERO properly delayed deploying a Road Crew until the fire hazard had been eliminated.)
235 Relitigation of planning PID at 795-98 (LILCO's " assumption" of four issues accidents is the planning basis litigated and re-solved in LILCO's f avor.) See Response to I.F.
222 (" Delays" in call-up, dispatch or deploy-ment are only relevant if overall mobilization was untimely. During the Exercise, Road Crew mobilization was not untimely and was ade-quate to protect public health and safety.)
Intervenor Proposed Fhxting LILCO Response Explanation 235,n.166 Relitigation of planning See Response to I.F. 226, n.156 (FEMA's refer-issues; unjustified infer- ence to intermediate times in the mobilization ence; refuted by record process is irrelevant.) See L.F.195; Tr. 8170-72, 8705-07, 8710, 8740 (Keller), (It is by no l means clear that "had FEMA known about the
- data" an additional Deficiency "perhaps" would have been given. The witness said that he I
needed more information, including whether or not the Plan provided an over-supply of Road Crews. Moreover, FEMA specifically refused to grade the severity of the Road Crew prob-lem; they did not state that the Road Crews' performance was " seriously deficient".)
236 Relitigation of planning See Response to I.F. 221, n.152 (LILCO did not issues; unjustified infer- " concede" that major accidents might take ence; no citation place during a Shoreham emergency.) See Re-sponse to I.F. 216,216, n.150,317 (Neither the citation nor the record supports the statement that Interveners' witnesses are more experi-enced and familiar with traffic matters. Their expertise consists solely of their experience dealing with traffic under normal conditions; they have no knowledge of or experience in dealing with traffic under evacuation condi-tions postulated in the event of a Shoreham emergency.) PID at 794-98, 805-09; Tr.1055 (Lieberman)(The reference to the SCPD acci-dent data is an attempt to relltigate the num-ber of predicted accidents; earlier, the Board found such " raw incident totals" to be "not pro-bative." Moreover, the SCPD data indicated that only one tow truck would have been nec-essary on the day of the Exercise.) See Re-sponse to I.F. 226, n.157 (The blunt assertion that "[t]hus 12 Road Crews are needed" has no citation and rests on predicates shown not to be valid.)
237 Refuted by record; not OPIP 3.6.3, Att. 8 (The Procedures do not "re-supported by citation quire" the deployment of all 12 Road Crews, "even in the event of a partial EPZ evacua-tion".)
237, n.167 Relitigation of planning See Response to I.F. 226, n.157 (Interveners issues; not supported by again attempt to revisit the issue of the num-citation ber of Road Crews required and their appropri-ate placement in the field.)
1 i
l Intervenor ,
Proposed .
Finding LILCO Response Explanation 238 No citation; refuted by See L.F.196 (The conclusion that LERO "would record likely experience significant problems" in mobilizing its Road Crews, and that LERO is not " capable of implementing the protective action of evacuation" is a mere assertion -
having no citation. The argument is refuted by the record.)
238, n.168 Not supported by cita- Tr.1162 (Roberts) (Chief Roberts suggested tion; unjustified infer- only that the Staging Areas were designed for a ence; relitigation of different everyday purpose, not that they were planning issues; refuted " insufficient".) Tr. 989-90 (Weismantle) (Mr.
by record Weismantle did not say that Staging Area staffs were " undermanned" or that LERO personnel were unable to perform certain staging activi-ties " simultaneously".) PID at 717, 723-25 (The activities which Road Crews undertake at the Staging Areas have been litigated and resolved J in LILCO's favor in EP Contention 27.) Tr. j 388-89 (Weismantie) (Further, LERO's assign- '
ment of field equipment was not " random." It was done in conformity with the " hierarch.y" ,
established by the Plan and Procedures.)
239 Relitigation of planning PID at 795-98 (The assertion that roadway ob-l issues stacles would affect evacuation time is an at- '
tempt to relitigate EP Contention 65.D,in which the Board concluded that LILCO had es-tablished that the " number of incidents are few" and that " evacuation time is insensitive to a modest frequency of incidents".)
240 Relitigation of planning See L.F. 239-40; LILCO Test. Cont. EX 41, ff.
issues; refuted by record Tr. 272, at 4 (On the day of the Exercise, LERO mobilized its Road Crews in a timely manner which would have protected the public health and safety.) PID at 720; Plan, App. A at V-2; OPIP 3.6.3 (The LILCO Plan does not as-sume that Road Crew personnel must be "in l-place at [the] outset of [the] evacuation pro-cess or soon thereaf ter." This is a traffic mod-eling assumption that applies to "[r]equired personnel to control traffic";it does not apply to Road Crews. The Plan makes n_o assumption as to when Road Crews will arrive at their field locations.) See Response to I.F. 222 (The proper perspective by which to assess the timeliness of Road Crew mobilization is the Board's estimate that "LILCO could 1
l l
l l ______ __________________ _ - -__ a
Intervenor Proposed Finding LILCO Response Explanation substantially complete its mobilization in about 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />".)
241 Relitigation of planning PID at 792-93, o07-09; Tr.1677-80 (Lieberman),
issues; refuted by . 1004 (Frye) (Interveners wrongly imply that record; evidence used LILCO assumes that evacuees must adhere to 4 beyond scope of admis- preassigned evacuation routes if the Plan is to l sion be properly implemented. The Board has re-jected this idea, finding that "(1]t is not credi-ble to assert that LILCO assumed a rigorous undeviating conformance of actual traffic to j the conditions utilized in the model in the f ace of numerous sensitivity analyses demonstrating the opposite." The f ailure by evacuees to fol-low their preassigned routes would not ad-versely affect public health and safety, the Board having noted that "[o]Verall evacuation {
time is not sensitive to deviations in route compliance by drivers . . .." The Board in this proceeding admitted Interveners' testimony on route compliance for purposes of background only.) See Response to I.F. 239 (Moreover, I roadway obstructions, whether they occur at j the outset of an evacuation or later,14 ave little j l
effect on evacuation times.) See L.F. 239-10; I j LILCO Test. Cont. EX 41, ff. Tr. 272, at 4 l
! (During the Exercise LERO demonstrated an j l ability to clear disabled vehicles in a manner adequate to protect public health and safety.)
242 Relitigation of planning PID at 809-12 (Interveners' entire " finding" is a j issues restatement of planning issues from EP Con- 1 tention 66, in which the Board was "not con- l vinced" that these same contingencies then raised by Interveners would " seriously affect network evacuation time." The results of the !
Exercise provide no factual basis on which to reopen this issue.)
243 Outside the scope of LILCO Test. Cont. EX 41, ff. Tr. 272, at Att. A the contentions; evi- (No f air reading of Contention EX 41 indicates dence used beyond that the issue of the Road Crews' ability to scope of admission convert a stretch of evacuation road into one-way flow is raised by that Contention.) Tr.
1004 (Frye)(Testimony on this issue was admit-ted as background only.)
Intervenor Proposed i Finding LILCO Response Explanation 244 - Refuted by record See L.F.191-96 (The conclusion that the mobi-lization of the Road Crews was " seriously defi-cient" and that the LILCO Plan is "fundamen-tally flawed"is unsupported by valid predicates and is refuted by the record.)
.247 Out of context See L.F. 236-40, 428 (Interveners use " poor" out of context. LILCO's position on its re-sponse to the impediments during the Exercise is clear; while the Exercise demonstrated some poor judgment on the part of a very few LERO personnel, LERO's overall response was ade-quate to protect public health and safety. The reference to a " poor" response is in the con-text of LERO training, in which the inquiry is whether a pattern of behavior has been estab-lished, not whether the actions of an individual would jeopardize public health and safety dur-ing an actual emergency.)
248 Not supported by cita- Tr. 308 (Lieberman), 876, 970 (Weismantle), 967 tion; unjustified infer- (Wilm)(The assertion that LILCO's witnesses ence tried to convince the Board that the " poor" performance by the Road Crews was "princi-pally FEMA's f ault" is not supported by the ci-tations; LILCO maintains that FEMA's actions were a contributing f actor.)
248, n.176 No citation; unjustified OPIP 2.1.1, Att. 2, p. 33 of 73: Tr. 399-403, inference; refuted by 539-40 (Weismantle)(The assertion that "no record reasonable construction" of the Plan required verification of impediments is unsupported by a citation; the inference that seeking verifica-tion was inconsistent with Procedures is re-futed by the record.)
249, n.178 Not supported by cita- Tr. 8439 (Baldwin, Keller), 8695-96 (Baldwin) tion (FEMA did not say that it "made certain" that rerouting options were " evident to LILCO."
FEMA noted that they "didn't specifically look for obvious" options.)
i 251 Unjustified inference; LILCO Test. Cont. EX 41, ff. Tr. 272, at 20-21; refuted by record Tr. 311-13 (Lieberman), 404-05, 422-23 (Weismantle),8231 (Kowieski); FEMA EX Exh.
f I at 36 (The witnesses' description of how in the "real world" an impediment would be quickly identified refutes Interveners' argu- i
( ment that FEMA's method of injecting the l l
l 1
i
i I
l Intervenor
~
!_ _ Proposed Finding LILCO Response Explanation gravel truck impediment aided LERO's re-sponse. FEMA's method actually made LERO's l
response more difficult. By bypassing LERO's means of obtaining accurate information from its many field workers, the injection of the im-pediment message at the EOC, with only the 4 notation of being from an "EOC Team Leader", j made the Evacuation Route Coordinator con- i clude that verification was necessary and ulti- {
mately affected LERO's response to the imped- J i iment.) q 251,n.179 Relitigation of planning PID at 734-37 (The criticism of the "potentially issues time-consuming and confusing" communication !
chain is an attempt to revisit EP Contention !
30, concerning LERO's communication struc- ]
ture, which was resolved in LILCO's f avor.) )
p.52 - Not supported by cita- Tr. 966 (Wilm)(LILCO did not " admit" that tior ; unjustified infer- "certain LERO personnel erred." Mr. Wilm said ence that one LERO worker could have "done his job better".)
- 253 Unjustified inference; Tr. 435 (Wilm), 8237-38 (Kowieski), 8265-66 not supported by cita- (Keller); FEMA EX Exh.1.at 36 (While LILCO tion and FEMA may have agreed in advance on the method of injecting the gravel truck impedi-l ment scenario into the Exercise, neither l LILCO nor FEMA could have known that on the day of the Exercise the evaluator would be sitting in his car in an obscured area,50 yards from the impediment site. Moreover, FEMA noted that if it were doing it again, it would reevaluate the entire process in " great detail" and might not do it the same way.) Tr. 418-19 (Weismantle, Wilm), 1083-84 (Weismantle, Wilm) (LILCO's witnesses acknowledged only that the message was " clean and precise" as regards to the location of the impediment; they did not agree that handing the message to EOC personnel minimized the risk of confusion .
or miscommunication. Interveners' conclusion j that the messages "were craf ted" as a means to 1 aid LERO's response is baseless.)
254 Refuted by record See Response to I.F. 251 (Interveners' conclu-sion that the impediment information was transmitted to LERO in a more helpful manner in the Exercise than would be true in a real l l
~55-Intervenor Proposed Finding LILCO Response Explanation emergency is erroneous.) Tr. 435 (Wilm);
FEMA EX Exh. I at 36 (While FEMA's method of injecting the impediment might have been consistent with its past practice, the failure of the evaluator to be at the impediment site was responsible for much confusion.)
254,n.182 Refuted by record See N.F. 219; Tr. 8220-22 (Baldwin) (As Staff acknowledges, FEMA agreed that the method in which impediments were input and evalu-ated contributed to the delays in LERO's re- ;
sponse.) l 1
255 Refuted by record LILCO Test. Cont. EX 41, ff. Tr. 272, at 9: Tr.
455 (Wilm)(LILCO did not admit that the mes-sage was " clear, concise, and was never changed during the Exercise." As Interveners fall to acknowledge, the hand-written note which the FEMA controller in the EOC gave to the EOC Communicator indicated that the im-pediment, as well as the evaluator, was east and not north of the intersection. This con-tributed substantially to LERO's delayed re-sponse.) LILCO Test. Cont. EX 41, ff. Tr. 272, at 26-27; Tr. 734-38 (Wilm),8438 (Baldwin, l Keller, Kowieski)(Moreover, the free play message is ambiguous as to how the accident is precisely situated. The message is redundant and confusing when it first states that the gravel truck is blocking the roadway and both shoulders and later states that three cars are blocking the road shoulders. The implication, from this ambiguity is that by removing one of the automobiles a path may be opened for traf-fic.)
l 255, n.183 Refuted by record See Response to I.F. 255 (The message is not
! " unambiguous".)
f LILCO Test. Cont. EX 41, ff. Tr. 272, at 24 257 No citation; refuted by record; not supported by (The omissions were " insignificant" precisely citation because the information omitted was insignifi-cant.) Tr. 303-04 (Lieberman), 915 (Wilm),
1082-83 (Weismantle) (The citations given do i
not address the issue of omitted information.)
258 Unjustified inference; See L.F. 222, 237; Tr. 408 (Weismantle) (The not supported by cita- claim that the record reveals "many instances" tion where " key LERO personnel" failed to convey l
Intervenor Prop ed Finding LILCO Response Explanation I
1 information is too t; road. Only the Evacuation 1 Route Coordinator's performance at the EOC has been so characterized.) Tr. 8259 (Baldwin), -
8575-76 (Keller); FEMA EX Exh.1 at 36,39 ,
(The failure of the Evacuation Route Coordina- )
tor to inform the Evacuation Coordinator of the accidents, not the alleged f allure to " con-vey" other "important information," was the
" primary basis" for FEMA's Deficiency finding.)
259 Unjustified inference; LILCO Test. Cont. EX 41, ff. Tr. 272. at 24 1 refuted by record (The use of the word " pertinent" to describe ]
the facts not communicated to the Evacuation j Support Communicator is an inaccurate char- !
acterization. The Route Spotter would have {
discerned that information on his own upon ar- '
riving on the scene.) OPIP 3.6.3 (The claim that such information was " essential" and was
" required to be communicated" under the Plan is not true. Procedures contain no such re-quirement.)
259,n.185 Refuted by record LILCO Test. Cont. EX 41, f f. Tr. 272, at 24 (LILCO " acknowledged" that the information 4 was omitted, not that it was "important".) i 259,n.186 Refuted by record; un- Tr. 8262 (Kowieski) (FEM A's statement that l justified inference; no "[i]t was adequate, but a weak response" con-l citation tradicts Interveners' finding.) Tr. 8261 (Kowieski)(The statement that FEMA gave
" consideration" to " identifying LILCO's field response as another Deficiency"is an un-justified inference.) Tr. 8179-81 (Keller, Kowieski)(The reference that FEMA "essen-tially agreed" is not supported by an honest reading of the record cited by Interveners.
FEMA plainly rejected the conclusions drawn by the Interveners by refusing to agree witn the final sentence in Contention EX 29.)
260 Not supported by cita- S_ee e L.F. 201; LILCO Test. Cont. EX 41, ff. Tr.
tion; unjustified infer- 272, at 25 (The statement that the Transporta-ence tion Support Coordinator " waited approxi-mately one hour" before informing the Bus Dis-l patcher of the impediment is not supported by the mere citation to Attachment B.S. The record does not indicate whether the Transpor-tation Support Coordinator was aware of im-I pediment before 11:35. The comment that the L_ _ _
Intervenor Proposed Finding LILCO Response Explanation l
message " contained no instructions as to how the Bus Dispatcher should have responded" is irrelevant. The record indicates that the Dis-patcher did respond appropriately upon receipt of the message.)
See L.F.199-202; LILCO Test. Cont. EX 41, ff.
- 261 Refuted by record -
Tr. 272, at 9 (The claim that, as of 12:13, LERO had "for all practical purposes" done nothing in response to the impediment ignores clear evidence to the contrary in the record.
LERO had engaged in a continual effort to ver-l ify the existence of the accident, that effort having been hampered by the f ailure of the FEMA evaluator to be at the accident loca- '
tion.)
t 262 No citation; refuted by Tr. 649-50 (Weismantle), 8252 (Keller) (Interve-the record nors mischaracterize the delay in sending an EBS message on the impediment as an example of " serious communication problems" which
" continued to plague LILCO." Mr. Weismantle explained that the preparation and transmis-sion of the EBS message was properly delayed while rerouting was implemented and an analy- n sis of zone contamination was completed. This
" delayed" response does not represent a com-munications " problem". Moreover, a FEMA witness noted that EOC performance "did appreciably improve"' once the Evacuation Coordinator became involved.)
263 Unjustified inference LILCO Test. Cont. EX 41, ff. Tr. 272, at 26; Tr.
908 (Wilm), 648-54, 903-04,1012-16 (Wels-mantle)(The criticism of the timing and con-tent of the EBS impediments message is un-justified; the record indicates that while help-ful, the messages were not required to protect public health and safety since rerouting was al-ready in place.)
265 Unjustified inference See Response to I.F. 263.
266 Not supported by cita- Tr. 8225 (Keller, Kowieski) (The claim that the tion; no citation; re- record " establishes" that LERO failed to com-futed by record municate "important" information about the impediments is an assertion that cannot be f airly drawn from the cited testimony. FEMA merely noted that certain LERO personnel
Intervenor Proposed Finding LILCO Response Explanation "should be trained" to " request more informa-tion" and " provide more complete informa-tion".) See L.F. 224, 239-40; LILCO Test. Cont.
EX 41, ff. Tr. 272, at 26; Tr. 908 (Wilm),650-54, 903-04,1012-16 (Weismantle) (The alleged l "f ailures" to communicate information did not .
I impair LILCO's ability to protect health and safety.)
266,n.188 Unjustified inference Tr. 8265 (Keller)(The witness stated only that he lacked knowledge of an upward communica-tion from the field.)
267 Refuted by record Tr. 8262 (Kowieski)(FEMA testified that the Road Crew response "was adequate, but a weak response".) _
270 Refuted by record See N.F.164; LILCO Test. Cont. EX 41, ff. Tr.
272, at 21; Tr. 435,557-58 (Wilm); FEMA EX Exh. I at 36 (The FEMA evaluator did not stand
"'immediately around the corner on Main Street"; he was in his car in a position 50 yards from the impediment scene and obscured by trees.)
271 Refuted by record See Response to I.F. 255; Tr. 558 (Wilm) (The confusion about the evaluator's location did "significantly delay" LERO's response to the impediment. Even af ter the FEMA evaluator was located, justifiable confusion existed at the EOC as to whether the impediment itself was also east, rather than north, of the inter-section.)
272 Unjustified inference Tr. 455-56 (Weismantle) (Interveners ignore the testimony that, had there been a real accident, the Route Spotter would have been able to re-port it within 11 minutes.)
- 273 Refuted by record See L.F. 202; LILCO Test. Cont. EX 41, ff. Tr.
272, at 9 (The Road Crew was dispatched im-mediately once the Route Spotter reported back to the EOC.)
273, n.190 Unjustified inference Tr. 8212, 8220-22 (Baldwin); FEM A EX Exh.1 at 36,39 (The statement that " FEMA agreed" that the f ailure of the evaluator to be in his '
proper location could not have caused the De-ficiency rating is basically true; however,
Intervenor Proposed Finding LILCO Response Explanation Interveners fall to mention that this is because the Deficiency given to the impediment re-sponse was a result of alleged communications failures at the EOC, not the field response itself. Moreover, FEMA did agree that the
! mislocated evaluator was a contributing factor I
in LERO's delayed response.)
274 Refuted by record; un- LILCO Test. Cont. EX 41, ff. Tr. 272, at 20-21; justified inference; not Tr. 435,557-58 (Wilm); FEMA EX Exh.1 at 36 supported by citation; (The record clearly indicates that the difficulty no citation in locating the evaluator was responsible for much of the delay in LERO's response. The as-sertion that LERO personnel could have dis- "
covered the evaluator had they exercised "ini-tiative" is unjustified, as the evaluator was in an obscured area 50 yards from the impedi-ment site.) See Response to I.F. 251 (Interve-nors miss the point. Had there been a realim-pediment, any of a number of LERO field workers would have reported it quickly to the EOC. LERO's initial difficulty in verifying the
" hypothetical" accident was a function of the low fidelity simulation on the day of the Exer-cise and does not demonstrate a fundamental flaw.) Tr. 900-901 (Weismantle) (Mr. Weis-mantle did not note that a one hour response "would have been too long"; he said that the response "could have been f aster in that cir-cumstance". There is no citation for the erro-neous proposition that "obviously" the time taken by the Road Crew to respond was "much too long".)
275 Refuted by record See L.F. 225; LILCO Test. Cont. 41, ff. Tr. 272, at 27; Tr.1019-20 (Wilm)(The need for a scraper truck was an invention of the FEMA evaluator; there was no indication at all from the free play message that gravel had been spilled. In any event, LERO had numerous scraper trucks that could have responded if one had been needed.) See Response to I.F. 255 (The claim that "several trucks would have been necessary"is refuted by the testimony that it was reasonable to assume that removing one car would have opened a path for traffic.)
Intervenor Proposed Finding LtLCO Response Explanation 275, n.192 Unjust'fied inference LILCO Test. Cont. EX 41, ff. Tr. 272, at 24; Tr.
734 (Wilm)(While the Road Crew was not in-formed that it was a multiple-vehicle accident, the omission of this information was insignifi-cant. The Crew would have seen it for them-selves upon arriving and could have requested additional help if necessary.)
276 Refuted by record See Response to I.F. 255 (LILCO did not " gen-erally concede" that one tow truck might have been unable to clear the impediment.)
277 Unjustified inference; PID at 796, 798,809-11; s_ee L.F. 239-40 (The refuted by record; characterization of LILCO's response as ad hoc relitigation of planning is unwarranted and refuted by the record. In-issues tervenors' criticism is an implied attempt to revisit EP Contentions 65 and 66, concerning the effects of accidents on evacuation times and procedures for removing impediments, both resolved in LILCO's f avor.) Tr. 762-65 (Weismantle) (The impediments would not have affected protective action recommenda-tions.)
277, n.193 Refuted by record LILCO Test. Cont. EX 41, ff. Tr. 272, at 26 (The thirty-minute removal time refers to the time needed to remove all four vehicles, not the briefer interval to open a traffic lane.)
277,n.194 Refuted by record See Response to I.F. 255 (The free play mes-sage was not unambiguous regarding whether the truck alone or the entire accident was blocking the road shoulders.)
278 Unjustified inference See L.F. 239-40 (The conclusion that LERO f ailed to demonstrate an ability to implement the protective action of evacuation rests on predicates show n not to be valid.)
279 Refuted by record; PID at 807; LILCO Test. Cont. EX 41, ff. Tr.
relitigation of planning 272, at 13 (Mr. Lieberman testified that the issues gravel truck impediment would not have ex-tended overall evacuation time beyond the
" calculated estimates." Interveners, who have not performed their own evacuation time esti-mates, offered no testimony to rebut this.
Moreover, the Board has found that " delays of individuals from accidents are not significant to the overall result because the
Intervenor Proposed Finding LILCO Response Explanation 1
capacity-constrained queue supplies the rate-limiting impedance . . .. Therefore, while the l contingencies asserted by the County could occur, they simply do not have the asserted ef-fects on the overall network".)
279,n.195 Relitigation of planning See Response to I.F. 279 (The focus on the issues; refuted by record evacuees delayed by the impediment ignores '
that the pertinent issue is the impediment's ef-feet on overall evacuation time, which would have been insignificant.)
281 Not supported by cita- LILCO Test. Cont. EX 41, ff. Tr. 272, at 22 tion (LILCO did not " concede" that " unnecessary confusion and delays" characterized its re- ,
sponse.)
283 Refuted by record S_e_e Response to I.F. 255 (LILCO never " con-ceded" that the gravel truck impediment mes-sage was " concise and complete"in all re- 1 spects.)
284 Unjustified inference See L.F. 237 (While LILCO has admitted that the Evacuation Route Coordinator demon-strated poor judgment in falling immediately to inform the Evacuation Coordinator of the im-i pediments, LERO personnel did not, as Interve-nors imply, fail to convey any other "important information" regarding either the gravel truck or the fuel truck impediment, except for the need for field workers to find the FEMA '
evaluator.)
285 Refuted by record; not S_e_e L.F. 224; LILCO Test. Cont. EX 41, ff. ;
supported by citation Tr. 272, at 23-24; Tr. 800-01 (Wilm) (The infor- {
mation which the Evacuation Route Coordina- i tor did not give to the Evacuation Support Communicator was not " pertinent". These f acts were readily ascertainable and the omis- ,
sion of such facts did not " delay" LILCO's re- {
sponse.) OPIP 3.6.3 (The Plan and Procedures }
did not " require" such f acts to be communi- j cated.) j 285,n.197 Refuted by record S_ee e Response to I.F. 285 (LILCO did not )
" agree" that the omitted data were "necessary" l or " pertinent".) j i
I
)
Intervenor i Proposed f Finding LILCO Response Explanation j t
286 - Unjustified inference; LILCO Test. Cont. EX 41, ff. Tr. 272, at 27-28; refuted by record Tr. 321 (Wilm) (LERO's communication problem did not go "substantially beyond one individu- i al." Interveners give a single example and mis-state the facts - at 11:15 the EOC Communi-cator called Port Jefferson and inquired whether the Route Spotter had been dis-patched. He did not request that the Route Spotter then be dispatched.)
286,n.198 Refuted by record; un- See L.F. 209,225; LILCO Test. Cont. EX 41, ff.
justified inference Tr. 272, at 27-28 (Interveners wrongly assert that the "poorly worded" message was draf ted and sent by the Evacuation Route Coordinator.
In fact, the EUC Communicator transmitted the incomplete message that resulted in the Route Spotter's delayed dispatch. As LILCO explained, had the Communicator told the Port Jefferson Staging Area that he was trying to verify an impediment, a LERO field worker would have been dispatched immediately.
While the Communicator should have been more clear, this incident does not constitute "yet another example" of " pervasive communi-cation problems".)
286,n.199 Out of context Tr. 8179-80 (Keller, Kowieski) (The statement that FEMA " essentially agreed" with Conten-tion EX 25 ignores the witnesses' tes'imony that they explicitly disagreed with the Conten-tion's final sentence.)
287 Unjustified mference; See L.F. 209; LILCO Test. Cont. EX 41, ff.
refuted by record Tr. 272, at Att. C. 3 (Interveners' " example" is not another " communication problem"; this is the same communication which Interveners in-accurately describe in their Proposed Finding 286. Moreover, there was no initial "confu-sion" as to whether the Route Spotter had been dispatched. The inquiry was promptly and clearly addressed.)
288 Refuted by record Tr. 800-01 (Wilm) (Mr. Wilm clearly explained why the omission of certain information was l
unimportant and why it would not have j threatened the safety of LERO personnel. The
! Route Spotter was sent simply to verify the impediment. The " potential for an explcsion,"
if it existed at all, would have been self-evident.)
Intervenor Proposed Findinst LILCO Response Explanation 288,n.200 Unjustified inference; Tr. 804 (Wilm) (Interveners' persistent focus on no citation minutia reaches extreme proportions in this fuel / gas spill " issue". The assertion that "such misinformation" could have led to an "improp-er response" is speculative and has no citation.
Moreover, Mr. Wilm testified that he treated it as a gas spill because he considered that to be the " worst case".)
289 Unjustified inference See N.F. 228; Tr. 341-42 (Shon, Wilm) (Interve-nors wrongly imply that LILCO was under an obligation to produce documentary proof of the simulated phone call and that the " failure" by LILCO to do so is evidence that no call was made. Furthermore, the fact that the fire de-partment was reported to be at the scene sup-ports the reasonable assumption that a simu-lated call was made. Staff accepted that the simulated call was made.)
290 Unjustified inference S_ee L.F. 239-40 (The conclusion that LERO f ailed to demonstrate that it could adequately protect health and safety rests on predicates 1 shown not to be valid and is refuted by the record.)
291 Refuted by record See L.F. 237,239-40 (The claim that LERO demonstrated an inability to ecmmunicate in-formation is an overbroad assertion; LILCO ad-mitted poor judgment on the part of one EOC worker in communicating information. The conclusion Interveners draw from this, that there is "no basis" to find that LERO could im-plement the protective action of evacuation,is erroneous and is refuted throughout the record.)
292,n.201 Unjustified inference See Response to I.F. 289 (The words " contrary q to LILCO's assertion" create an unfounded im- '
pression that the lack of documentation is evi-dence that the call to the fire department was never made.)
i 293 Out of context See L.F. 225; Tr. 310 (Lieberman) (LILCO ad-mitted that the Route Spotter response could have been more " expeditious". LILCO did not concede, as is inferred, that its response was
' not " wholly adequate" with regards to the manpower or the equipment deployed to deal with the fuel truck impediment.)
l l
I Intervenor -
Pmposed Finding LILCO Response . Explanation
-294 Refuted by record; un- FEMA EX Exh.1 at 39 (FEMA's description of justified inference its Deficiency rating was limited to communi-cations problems in the EOC which, in their view, caused " incomplete" equipment to be sent to the gravel truck impediment only. In-tervenors' tactic throughout their Proposed Findings 292-302 is to return to the issue of de-'
layed communications in the EOC in order to create the impression that the personnel and equipment sent to the scene of the fuel truck l impediment was per se inadequate.)
1-l 295 No citation; unjustified See Response to I.F. 294 (The claim that Inter-
! inference venors provided "much credible evidence" to support its position that LERO did not allocate sufficient manpower or equipment to the fuel truck impediment has no citation. Moreover, I Interveners' " example" does not address the ad-equacy of the manpower or equipment sent to the impediment scene.)
296 Unjustified inference See Response to I.F. 294 (Interveners do not specifically address the adequacy of the manpower or equipment sent to the impedi-ment scene.)
297 Refuted by record; un- LILCO Test. Cont. EX 41, ff. Tr. 272, at 15-16, f l justified inference 25-26; Tr. 796-98 (Wilm) (The statement that l "as late as 1:48" the Road Logistics Coordina- ,
l tor had not dispatched equipment to the fuel -J truck impediment is meaningless. As of 12:47, !
the Evacuation Coordinator had properly con- )
cluded that the fuel truck was not easily re-movable and had begun to implement rerouting procedures. Further, the fire department had been contacted. At that point, there was no pressing need to dispatch equipment to the im-pediment.) See Response to I.F. 294. (The criticism of the timing and content of the EBS message on the impediments is irrelevant to the issue of the adequacy of the manpower and equipment sent to the impediment scene.)
297,n.203 Refuted by record LILCO Test. Cont. EX 41, f f. Tr. 272, at 25-26 (The Road Logistics Coordinator consciously delayed dispatching equipment until the fire hazard had been eliminated.)
[
Intervenor Ptsposed Findtrw LILCO Response Explanation 298'- Refuted by record OPIP 3.3.4, Att.1; Tr. 827 (Wilm) (The alleged "other problems" do not withstand scrutiny.
, The Route Alert Driver "was not told anything l: about dosimetry" because he would have al-ready been instructed on his on 4 dosimetry-I which he was to use to monitor the responding firemen.) LILCO Test. Cont. EX 41, if. 272, at 17; Tr. 846-48 (Wilm) (The Route Alert Driver did not meet the evaluator until 1:30 because.
the evaluator was not initially observable to the driver.) .
299 Refuted by record; un- See L.F. 212, 224; LILCO Test. Cont. EX 41, ff.
justified inference Tr. 272, at ~ 15-16, 25-26; Tr.1024-25 (Wilm) (In-tervenors' finding fails to account for the sim-pie fact that the Road Crew's response to the fuel truck impediment was of secondary impor-tance once rerouting was implemented. The Road Crew was sent to standby and render whatever assistance it could to the fire depart-ment. It was not sent actually to remove the fuel truck.) See Response to I.F. 231, n.162 (Since Road Crews are capable of responding to impediments regardless of location, it is in-correct to infer that the Road Crews are re-stricted to certain." jurisdictions".)
299, n._205
~
Unjustified inference See Response to I.F. 299 (The " delay" was a l conscious decision.)
299,n.206 Refuted by record See Response to I.F. 299 (Interveners ignore Mr. Wilm's explanation. The tow truck was dispatched merely to " stand by," not to at-tempt to remove the fuel truck. The witness testified that the Road Crew was sent in case "they could be of assistance.")
300~ Refuted by record LILCO Test. Cont. EX 41, ff. Tr. 272, at 25-26; >
Tr. 854-55 (Wilm), 909-11 (Weismantle, Wilm)
(The assertion that LERO improperly delayed offloading the fuelis incorrect. LERO proper-ly dealt with the most immediate problems first;it rerouted traffic and called the fire de-partment. Morecever, ownership of the fuel truck was not established until af ter additional 1
Information had been injected by FEMA.)
l
Intervenor Proposed Finding LILCO Response Explanation 300,n.207 Out of context Tr. 8258-59 (Keller, Kowieski) (Timeliness in contacting Hess was less important than the rerouting of traffic. FEMA remarked that if offloading was "all they were going to do, then' l that would not be a timely response".)
301 Unjustified inference LILCO Test. Cont. EX 41, ff. Tr. 272, at 18;.
Tr. 310, 845 (Lieberman), 841-42 (Weismantle)
(The statement that the fuel truck impediment would have blocked the evacuation route "throughout the entire evacuation process" misses the point. Once rerouting is in place, removal of the truck is no longer of particular importance. The effect on total evacuation l time was minimal.) See Response to I.F. 299 !
(LILCO's " acknowledgement" that it sent "in- l sufficient" equipment is meaningless since -
rerouting had been established.)
302 Refuted by the record See L.F. 239-40 (The " conclusion" that LERO is
" incapable of implementing the protective ac- ;
tion of evacuation" rests on predicates shown i not to be valid.) LILCO Test. Cont. EX 41, ff.
Tr. 272, at 15; Tr. 806-07 (Wilm), 808-09, 845 (Lieberman)(Since the evacuees were prompt-ly rerouted, they would not have been
" stranded in areas LILCO knew to be subject to I serious contamination".' The estimated time for drivers to extricate themselves from the queue was one-half hour. More importantly, l Interveners have f ailed to show how their con-cerns, even assuming arguendo that they have any validity at all, demonstrate that the LILCO Plan is fundamentally flawed. Interveners im-properly focus on individual evacuees, not on ;
the impediment's effect on overall evacuation time, which Mr. Lieberman calculated to be "much, much less than an hour, if anything".)
303,n.210 Unjustified inference Tr. 8202-08 (Baldwin, Keller, Kowieski) (While FEMA did not evaluate LERO's rerouting l schemes in the field, it did so at the EOC. In-tervenors unjustly imply that LERO's " untimely responses" prevented a field evaluation. FEMA noted that traffic rerouting evaluations were "never done in the past in the field".)
l
Intervenor Proposed Finding LILCO Response Explanation 304, n.'211 Unjustified inference; Tr. 872-75 (Weismantle) (Mr. Weismantle clear-not supported by cita- ly noted that pre-Exercise training drills in-tion; refuted by record volved neither accidents of the severity-presented by FEMA nor accidents that required rerouting, given the findings in the previous litigation regarding the nature and severity of I accidents which would be expected to occur during a Shoreham evacuation.) Tr. 878 (Weismantle) (Mr. Weismantle disagreed that drill results demonstrate continued problems; he stated that drills he attended demonstrated a good LERO performance.)-
305,- No citation; refuted by Tr. 2291 (Lieberman) (The assessment of the
'307 record rerouting schemes as being " dramatically dif-ferent"is without citation and erroneous.
Moreover, Interveners' entire approach in examining the rerouting issue is misguided. In-tervenors insist on comparing the proposed rerouting schemes and determining which ones are better. Not only are Interveners' schemes in no way superior to those implemented by LERO, the " comparison" approach is itself ir -
relevant. The only pertinent issue is whether LERO's rerouting would have adversely affect-ed public health and safety to such a degree as to demonstrate a fundamental flaw. The record shows that it did not.) I.F. 314; Tr.1185 (Michel)(Interveners' Proposed Findings aban-don the witness's position during the hearing that Interveners' gravel truck rerouting I scheme was the "only correct way, certainly";
instead, Interveners simply argue that it was "best".)
308,n.214 Not supported by cita- Tr.1316-23 (Frye)(The record does not clearly tion indicate that the supplemental testimony was solicited because the Board found the rerouting ,
schemes "so different".)
310 No citation; refuted by PID at 806-07; Tr. 2289 (Lieberman)(Interve-record nors assert that the " key" to rerouting traffic around impediments " properly" is to redirect traffic "away from the impediment quickly so that significant congestion would not have occurred at the impediment site." This i unsupported claim overlooks that the true aim j is the evacuation of the population of the EPZ -
as a whole; congestion will be present in any
U iIntervenor p Pmposed Finding LILCO Response Explanation L
[! ' event. The Board recognized that " late mobili-i zation, blocked roads, and congested intersee-tions will indeed delay individual progress, but
. noted that the " individual misfortune of some-one delayed in mobilization becomes the good.
E fortune of someone else at another location '
who finds his or her queue moving earlier than it otherwise would." Interveners also overstate the significance of rerouting; as the Board pre-viously noted, "[d]elays of individuals from accidents are not significant to the overall re-suit. . . . Therefore, while the contingencies asserted by the County could occur, they sim -
ply do not have the asserted effects on the overall network".)
312' No citation; refuted by Tr. 616 (Wilm), 326-28, 686-87,1089-92, record 1113-14 (Lieberman)(Walters Street was not the " obvious and logical way to reroute" around the gravel truck impediment. Mr. Wilm-explained that he considered and rejected that scheme because he "didn't like the idea of putting people into residential areas that are queued up." Mr. Lieberman testified that he would have followed LERO's scheme, since In-tervenors' proposed alternative would have re-quired the establishment of a new Traffic Con- 3 trol Point; would have rerouted too close to the -l impediment; and would have added up to one i hour more to the evacuation time of those-rerouted than would LERO's scheme.)
313 Refuted by record See Response to I.F. 312 (LERO's decision not to adopt Interveners' scheme is not "inexplica-ble". Mr. Wilm did not discuss Interveners' scheme with his staff because he had already considered and rejected it. Moreover, the wit-nesses explained the superiority of LERO's scheme. Also, Mr. Lieberman did not agree that it was necessary to have Traffic Guides at ;
the intersection of Bartlett and East Bartlett.) j
-314 Refuted by record; no LILCO Test. Cont. EX 41, ff. Tr. 272, at 13; Tr.
citation 677-78 (Lieberman), 682-92 (Lieberman, Weismantle, Wilm), 845 (Lieberman) (Interve- )
nors mischaracterize LERO's rerouting scheme J and erroneously conclude that it had "disadvan- j tages." The majority of evacuees would have been rerouted westbound at Route 25 and not i
i
.__f___________._______._ . _ . _ __ _ __ _ _ . . . _ . . . _ _ _
Intervenor Proposed .
Finding LILCO Response Explanation onto Bartlett, Ashton, and Granny Roads. As Mr. Lieberman explained, the assertion that these routes would be saturated is true but irrevelant; virtually every evacuation roadway would be saturated during an evacuation of the EPZ. The pertinent point is that, as Mr. . i Lieberman calculated, the diversion of some '
vehicles onto these roads would not have had a significant effect on overall evacuation time.
Moreover, the statement that " hundreds of evacuees would likely have become lost or con- <
fused"is unsupported by any evidence in the record. Finally, the assertion that Traffic Guides were necessary for the routes chosen by LERO and that the rerouted evacuees would have been unf amiliar with this "rather remote I
area" is not true, as Mr. Lieberman explained.)
314,n.221 Out of context Tr. 702-03,1917-18, 2163 (Lieberman) (The overflow queue on Granny Road was located at the western boundary of the EPZ. Moreover, k overflow queues develop at the outset of the l evacuation process and are not a determinative factor in overall evacuation time. Mr.
Lieberman also explained that while under In- .
tervenors' proposed rerouting scheme Main {
Street would not become saturated, Middle )
Island-Yaphank Road would remain saturated I for a far longer time than would be the case if :
the Interveners' scheme were not used.) :
315 Refuted by record See Response to I.F. 312, 314 (Interveners' pro- I posed alternative scheme is not "significantly better." Moreover, Interveners have failed to demonstrate that LERO's scheme would have adversely affected public health and safety.
The key issue is the effect of LERO's rerouting on total evacuation time; Mr. Lieberman pre-dicted that total evacuation time would not ex-ceed the " calculated estimates".)
316 Refuted by record See L.F. 232; Tr. 2275-80, 2317 (Lieberman)
(Mr. Lieberman provided precise reasons why I LERO's rerouting scheme for the fuel truck im-l pediment was superior to Interveners' ap-proach: LERO's route was shorter, it involved fewer turns,it utilized a better class of road-ways, more evacuees would have been f amiliar with LERO's route, and evacuees would have '
l - _o
1-
' s
_Intervenor -
Proposed Finding ' LILCO Response: Explanation been returned to the original route.) Tr. 2282 (Lieberman)(Mr. Lieberman disagreed that the portion of North Country Road used in LERO's rerouting scheme is "among the most con-gested in the entire EPZ".)
!316fn.222' Relitigation'of planning PID at 801-09 (The assertion that the number
!ssues; refuted by record of evacuees using North Country Road would be greater than anticipated is an attempt to revisit a planning issue. The validity of the traffic model from which LILCO's evacuation time estimates are derived has been exten-sively litigated and accepted by the Board.)
Tr. 2282 (Lieberman) (Additionally, Mr.
Lieberman established through actual traffic counts that the stretch of North Country Road used in LERO's rerouting scheme is not heavily congested.)
317 Refuted by record Tr. 2287 (Lieberman) (Interveners' witnesses' testimony that "no more traffic than is abso-lutely necessary should be put onto North Country Road west of the intersection with Route 25A"is entitled to little weight.. As Mr.
Lieberman explained, Interveners' point of view on all of the traffic rerouting issues
" takes the form of a complete reliance, or al-most complete reliance, on past experience as a basis for making decisions in an emergency environment which is totally unlike any-thing . . . resembling the environment in which this experience was gained.")
'318 Refuted by record See L.F. 232-33,239-40; Tr. 2275-89 (Lieberman) (Interveners f all to demonstrate that their proposed rerouting scheme is in any way superior to LERO's; the evidence suggests the opposite. Moreover, Interveners' descrip-tion of the respective schemes reflects a se-lective and disingenuous use of facts. For ex-ample, the stretch of North Country Road which LERO used to reroute traffic is not an evacuation route and is not congested. Echo Avenue, while relatively more congested than North Country Road during an evacuation, would only receive an additional 700 vehicles because of the rerouting, and this addition
[ would not tax its capacity over the total evac-uation period. Furthermore, Interveners end
- Intervenor' Proposed Finding LILCO Response Explanation-their description of their rerouting scheme with the diversion of traffic along Radio Ave-i nue. They do not mention, however, that i
Radio Avenue, unlike North Country Road and Echo Avenue, could well have been an unf amil-lar route for many evacuees. Also, Whiskey Road, which Interveners proposed as the con-I necting street between Radio Avenue and Canal Road, was described by Mr. Lieberman as being " acceptable" but "not a particularly good road".)
318,n.223 Refuted by record See L.F. 232-33; Tr. 2275-89,2300-2304 (Lieberman)(Interveners' specific criticisms of LERO's rerouting scheme are based on a selec-tive use of facts and a misunderstanding of the record. First, as Mr. Lieberman explained, LERO's scheme did not employ "some of the most saturated roads in the EPZ." Second, the statement that "LILCO's claim to the contrary was disingenuous"is unwarranted. The uncon-gested stretch of North Country Road between Route 25A and Echo Avenue is the sole portion of that road which is used in LERO's rerouting.
Third, LILCO's assertion that Interveners' use of Country Road 83 -(CR-83) would have rerouted traffic onto far more congested road-ways is not " absurd." While both LERO's and Interveners' schemes utilized CR-83, LERO's scheme would not have resulted in any additional traffic being sent along CR-83.
Once rerouted evacuees reentered onto Route 25A from Echo Avenue, they would have fol-lowed normal evacuation routes, with some traffic continuing west on 25A and some traf-fic being sent south along CR-83 to Canal Road. In contrast, Interveners' scheme would have resulted in additional traffic being di-verted onto CR-83 south of Canal Road.
Mr. Lieberman testified that it was th_is_ por-tion of CR-83 south of Canal Road which al-ready had "about eight times" the number of vehicles as Canal Roarl. Mr. Lieberman noted that the failure of Interveners to account for this congestion when devising their rerouting scheme would have added a half hour to the evacuation time. He also pointed out that this error is " symptomatic of the need for a plan and the need for any decisions made at an EOC
Intervenor Proposed Finding LILCO Response Explanation to be based upon the outcome of that plan and a knowledge of the traffic environment during the evacuation conditions, not normal condi-tions . . .." Finally, LILCO is correct that In-tervenors' scheme would have rerouted some traffic into the queue forming behind the grav-el truck impediment. Interveners failed to re-alize that the Traffic Guide at TCP 120,~ acting on his standing instructions, would have sent some of the rerouted evacuees south on Miller Place-Yaphank Road, towards the queue that I would have already formed north of TCP 35 be- I cause of the rerouting for the gravel truck im-pediment. Again, Mr. Lieberman noted that "there is a need to understand that the envi-ronment during an evacuation is totally differ-ent from what 3revails during normal times . . .. [Y: ou cannot depend upon the of-ficer on the scene to make decisions which might disrupt or be contraproductive [ sic] rel-ative to a global plan".)
318,n.224' Refuted by record See L.F. 232-33; Tr.1137-38 (Dormer, McGuire, Michel, Roberts), 2275-89, 2317-18 (Lieberman) (Interveners distort the evidence I in their attempt to discount LILCO's claim that !
LERO's scheme was superior. First, Interve-
]
nors have not " established" that LERO's 4 scheme involved a longer evacuation time; In-tervenors' witnesses admitted they have never performed any evacuation time estimates for the Shoreham EPZ. Second, as Mr. Lieberman explained, while Radio Avenue is not a major evacuation route, Interveners' scheme had sev-eral disadvantages once traffic was diverted off of that road. Third, the claim that Route 25A was " unavailable" to LERO because of the impediment misses the point; LERO's scheme rerouted evacuees back onto Route 25A west of the impediment. Fourth, the claim that LERO's route was " dangerous" because it I rerouted traffic onto North Country Road is l
. baseless. There is no evidence that traffic l would have turned onto side-streets, as Inter- l J venors flatly assert. Fif th, Interveners offer j no credible evidence that LERO's route would J
have resulted in evacuees "taking much longer j to leave the EPZ due to the congestion on the i
roadways evacuees were directed to use." On 1
)
Intervenor -
Proposed .
Finding LILCO Response Explanation the contrary, as Mr. Lieberman testified, evacuees following Interveners' scheme would have encountered more congestion and would have encountered substantial delays. Finally, Interveners imply that there was an inconsis-tency in Mr. Lieberman's claim that the LERO fuel truck rerouting scheme was better because it returned rerouted evacuees to their original evacuation route; Interveners point out that the LERO gravel truck rerouting scheme did not do this. There is no inconsistency. Mr.
Lieberman testified that "other things being equal, if you can return the diverted traffic to the same route, you would choose that over a diversion which takes them to a completely l different route for which you don't have in-structions. Sometimes other f actors outweigh this one.")
319, Religitation of planning PID at 807; LILCO Test. Cont. EX 41, ff. Tr.
320, issues; refuted by record 272, at 13,18; 636-38,806-08 (Lieberman, 321, Wilm), 845 (Lieberman), 1277-80 (Michel) (In-322, tervenors' erroneous focus on the issue of 323, evacuees " trapped" behind the impediments -
324, and their recitation of the steps LERO "should" 325 have taken is an attempt to revisit the estab-lished imperative of evacuation planning. In approving LILCO's evacuation time estimates, the Board recognized that the traffic model i
from which those estimates were derived "does not focus on the individual. Its simple impera-tive is that system capacity should not go unused. . . . It is indifferent to the problems of individuals." In contrast, Interveners assert that the " failure" by LERO to provide assis-tance to the "many persons trapped . . . behind the two impediments" is a " serious omission."
This is wrong for two reasons. First, these evacuees could and would have extricated themselves by making U-turns. Interveners' witnesses agreed that self-help measures were available; one witness in f act added that, in the case of the gravel truck impediment, "very possibly motorists would have found [ the Walters Street detour] on their own." Mr.
Lieberman estimated that the evacuation times for evacuees affected by each impediment would have been extended by some amount no more than an hour. Second, and more
1
'Intervenor-
. Proposed Finding- LILCO Response Explanation importantly, by focusing on the predicament of individual evacuees, Interveners fail to show -
that the overall evacuation of the EPZ would have been adversely affected. Mr. Lieberman testified that the overall effect of the gravel truck impediment "would not have exceeded the calculated estimates," while the overall ef-fect of the fuel truck impediment would have -
been "much less than an hour, if anything." ~
- Accordingly, Interveners have not demon-strated a fundamental flaw.)
~ 326 ~ Refuted by record See Response to I.F. 305, 310,'312,'315, 316, 318, 318, n. 223, 318, n. 224, 319-25. (The con-clusion that LERO's handling of the rerouting L
of traffic was inadequate, that LERO's re-sponse was not " highly professional", and that the Exercise demonstrated that LERO's per-sonnel" lack f amiliarity with roadway planning and evacuation techniques" is refuted by the record. LERO met the essential criteria to be considered in assessing rerouting strategies; In-tervenors' criticisms lacked such a coherent approach. Significantly, even Interveners have not claimed that a fundamental flaw is demon-strated by LERO's rerouting performance.)
327 Refuted by record _See L.F. 239-40; Tr. 2275-89 (Lieberman)-
(LILCO's proposal for the removal of impedi-ments is not " inherently unworkable." While some problems did develop on the day of the-Exercise, LERO demonstrated that it is capa-ble of removing impediments and rerouting traffic in a manner adequate to protect public health and safety.)
- 328 No citation; refuted by See L.F. 239-40 (Interveners' " overwhelming record evidence" consists solely of the recitation of their own prefiled testimony, which is refuted throughout the record.)
329 Out of context Tr.1233-34 (Dormer, McGuire, Michel) (Inter-venors' testimony on the drill reports is enti-tied to little weight due to their demonstrated lack of knowledge of post-Exercise drills and drill reports.) LILCO Test. Cont. EX 50, ff.
Tr. 4368, at 68-72 (Interveners' selective use of drill reports to support their claim is ill-founded. By using the results of the June 6
Intervenor Proposed
{ Finding LILCO Response Explanation drill only, Interveners ignore the f act that, in later drills, the response to impediments was much improved. Moreover, Interveners disre-gard the fact that many of the participants in the June drill were new trainees. Also, not all of the June participants had had any prior training in dealing with major impediments; h' those that did had gained their experience through a table-top drill only.)
330 Unjustified inference; See L.F. 453; LILCO Test. Cont. EX 50, ff.
refuted by record; Tr. 4368, at 67-68 (Interveners misrepresent relitigation of planning the purpose of training. The f act that Impell fd issues " felt it necessary to strongly criticize LERO's impediment response" simply indicates that the drills are designed to reveal even minor problems to LILCO management and that the LERO training is rigorous and thorough. More l importantly, since Interveners have f ailed to l demonstrate that the results of the Exercise ,
indicate a fundamental flaw, Interveners' ref- )
erence to the drill reports is irrelevant. Since i the Plan is not fundamentally flawed, it does I not need to be fixed.) LILCO Test. Cont.
EX 50, ff. Tr. 4368, at 68-72 (The statement that LERO personnel had prior training in im-pediment removal before participating in the drills and that they had encountered the im-pediments in the Exercise is not altogether true with respect to the June 6 participants.
Only some of these participants had had prior training in dealing with major impediments and those that did had gained that experience through a table-top drill only. Also, Interve-nors ignore the fact that the other drills tested different LERO shif ts, each with different lev-els of pre-drill training.) SC EX Exhs. 87,88 (The assertion that a " third, fourth and even a fif th time" LERO "did not respond as required" is simply refuted by the drill reports them-selves, which indicate a clear pattern of good responses and improvement.) PID at 730-31, 734-37; see L.F. 407, 454-55 (The claim that LERO's decisionmaking and communications structure is " cumbersome" and " complex" is re-futed by the record. Moreover, LERO's organi-zational structure was previously litigated.
The Board found LERO's approach suitable for the purposes of implementing an EPZ evacuation.)
n am__ ________ _ _ _ _ _ _ _ . _ _ _
4 t
b L ' IntIrvenor Ptsposed ..
f Finding LILCO Response Explanation I'
331 ' Railtigation of planning See L.F. 239-40'(The record clearly demon .
l' issues; refuted by record strates that LERO is capable of dealing with road impediments adequately and that LERO can protect the public health and safety.) PID .
at 730-31, 734-37 (LERO's organizational struc- l ture was extensively litigated in the prior pro-ceeding; the Board specifically found that an -
operational / lateral structure was not needed and that "LILCO's administrative communica-tions system is a useful provision for an emer-gency response".) . Tr. 6408-12 (Perrow) (Dr.
Perrow, Interveners' expert on organizational structure, agreed that LERO's structure was suitable for a response to a radiological emer-gency since the critical elements of such a re-sponse require the analysis and reconciliation of information from various sources to assess and diagnose the severity of the accident and l
to make and issue protective action recom-mendations. This is best done at a central fa-cility such as an EOC.)
331,n.226 Relitigation of planning PID at 724-25 (The timing of field personnel issues mobilization was previously litigated; the Board found that "for a reasonable spectrum of possible accidents, LERO can mobilize its -
workers in a timely f ashion before there is a j need for evacuation".) See Response to I.F. l 331 (The repeated criticisms that LERO's "bu-reaucracy" makes prompt or proper communi-cation at the EOC impossible are irrelevant, since the Board, when deciding EP Contention 30, dealing with communication, noted that LERO's organizational structure is appropriate for dealing with an EPZ evacuation.)
333 Out of context; PID at 795-98,811; LILCO Test. Cont. EX 41, relitigation of planning ff. Tr. 272, at 30-31 (LILCO's four accident es-issues timate specifically noted that not all four would require tow truck assistance. Moreover, LILCO's estimate has been accepted by the Board as a reasonable planning basis. Interve-nors' report of actual traffic accidents suffers from the same infirmity as the accident data l l
examined by the earlier Board, which found )
that " raw incident totals . . . are not proba- l tive" and "cannot be accurately assessed". In- i tervenors' conclusion that LILCO's estimate
" appears to be unreasonably low" is an attempt
1 Intervenor Proposed Finding LILCO Response Explanation to revisit a previously litigated issue unrelated ,
to any Exercise event.) LILCO Test. Cont. EX '
41, ff. Tr. 272, at 30-31; Tr.1052-57 (Lieber-man) (In addition, Mr. Lieberman established the crucial point: based on the SCPD's own data, the predicted number of accidents requiring tow-truck assistance on the day of the Exercise would have been less than one. In fact, only one accident requiring a tow-truck did occur on the day of the Exercise.)-
334 Unjustified inference; See Response to I.F. 333 (While the raw data refuted by record provided by the SCPD was "unrefuted", its in-terpretation is clearly at issue. The conclusion that introduction of more impediments would have made LERO's task " geometrically more difficult"is baseless speculation.) See L.F.
246; Tr.1084-88 (Lieberman) (The evidence supports LILCO's position that the two impedi-ments it had to deal with were unrealistically severe and "way out on the tall of the distribu-tion of probabilities".)
335 No citation; refuted by Tr. 626 (Wilm) (Interveners' assumption that record " rerouting personnel at the EOC can only do one thing at a time"is refuted by testimony that LERO does have the capability to handle more than one impediment at a time.) OPIP 3.6.3, Att. 8, p. 4 (The claim that "several ac-cidents occurring in close geographic proximi-ty would . . , likely cause LILCO to experience significant delays" is speculation unsupported by Exercise events.) J t
336 Refuted by record See L.F. 246 (The " conclusion" is based on predicates shown not to be valid and is refuted by the record.) !
336,n.230 Unjustified inference See L.F. 246 (It is irrelevant that the injection of impediments on different roadways may j have resulted in longer delays in total evacua-tion times. Interveners'" finding"is unrelated to any Exercise event. The issue under Con-tention EX 41 is whether LERO could properly l remove impediments. The mere location of l impediments does not affect the response being evaluated.)
l 1
o - - _ _ - - _ - -_ _ _
l Intervenor' ,
Proposed !
. Finding LILCO Response Explanation ;
1 337,n.231 Refuted by record See L.F. 239-40,242 (Since the results of the Exercise did not demonstrate any fundamental flaws which need to be fixed, Interveners' as-sertion that a " full exercise is required to test-any fix before it can be accepted" is irrele-vant.) ;
)
'339 Refuted by record; no See L.F. 242; LILCO Test. Cont. EX 41, ff.
citation; relltigation of Tr. 272, at 28-30; LILCO Test. Cont. EX 50, ff.
planning issues Tr. 4368, at 65; Tr.1033 (Lieberman, Weis -
mantle); SC EX Exhs. 87,88 (The' claim that the addition of the Traffic Engineer will have "no significant impact" on LERO's ability to deal with impediments greatly understates the changes made to the Plan and to LERO training. For instance, drill reports indicate that the Traffic Engineer will provide valuable assistance in developing rerouting schemes. In addition to devising effective rerouting schemes, the Traffic Engineer will bring new insights to the entire decisionmaking process at the EOC, enabling LERO to respond more quickly and with more confidence to any road-way impediment or unexpected traffic prob-lem.) See Response to I.F. 331,331,n.226.
(The description of the LERO organization as
" complex" and " cumbersome" again attempts to revisit a planning issue previously litigated.)
340, Outside the scope of the PID .at 730-31, 734-37; Tr. 2289 (Lieberman),
341 contentions; relltigation 1102 (Weismantle)(The issue of the adequacy of planning issues; re- of LERO's communications network is not futed by record raised by Contention EX 41. Moreover, this issue was litigated and resolved in LILCO's favor. The need for a global plan precludes as-signing field personnel the responsibility for making traffic decisions. The Board specifi-cally rejected Interveners' assertion that field personnel should have such responsibility, not-ing that " traffic guides should not make deci-sions on their own initiative to alter traffic flow because evacuation routes are preplanned i and that preplanning takes into account inevi- l table traffic congestion".) PID at 749-50 (The
- t. Board has also rejected Interveners' argument that LERO personnel" require training or expe- l rience beyond that called for in the Plan".) )
)
l l
1
____- __ . _ _ _ _ 1
Intervenor Proposed Finding LILCO Response Explanation I
342 Refuted by record LILCO Test. Cont. EX 41, ff. Tr. 272, at 28-30; LILCO Test. Cont. EX 50, ff. Tr. 4368, at 68-72; SC EX Exhs. 87,88 (Interveners mis-represent the evidence found in the post-Exercise drill reports. For example, the al-leged " serious communication problems" during the October 1 drill did not involve the Traffic Engineer at all but concerned delays in getting information to the Staging Areas. Contrary to-Interveners' baseless assertion, the addition of the Traffic Engineer will enhance LERO's abil-ity to deal with impediments.)
342,n.232 Outside the scope of the LILCO Test. Cont. EX 41, ff. Tr. 272, at Att. A contentions; refuted by (The reference to Traffic Guides is irrelevant record and beyond the scope of Contention EX 41.)
See L.F. 239-40 (While some problems were ob- i served during the Exercise, LERO demon-strated that is can convey rerouting decisions, dispatch equipment and remove impediments in a manner adequate to protect public health and safety.)
343 Refuted by record PID at 730-31, 735-37; see L.F. 229, 231-33, 239-40; Tr. 2275-89 (Lieberman), 6408-12 (Perrow) (LERO established effective rerouting j schemes during the Exercise in a timely man- 1 ner. Further, the Plan properly provides that i rerouting and other traffic decisions are to be )
made at the EOC.)
343,n.233 Out of context SC EX Exh. 87 at 3,13; SC EX Exh. 88 at 7-11 (Interveners use selected portions of the drill reports to misrepresent the overall evalution of the Traffic Engineer. For instance, the re- '
port on the September 10 drill notes that "The Traffic Engineer was instrumental in devel-oping rerouting schemes and there was good lines of communication among all groups in the EOC relative to the problems." A summary of drill performance for the September 10,17 and October i drills states that "the use of the Traffic Engineer proved to be very valuable in developing recommendations for alternative evacuation routes." Similarly,in the drills on December 2 and 10, the Traffic Engineer i quickly developed rerouting schemes and the impediments were handled effectively. The conclusion that the addition of the Traffic
. Intervenor Proposed Finding LILCO Response Explanation
~ Engineer has not assisted LERO in solving im-pediment and rerouting problems cannot be f airly predicated on the Interveners' dubious use of selected iacts.)
344 Unjustified inference Tr.1034-35 (Lieberman) (Interveners distort the record in order to draw an unjustified con-clusion. The Traffic Engineer who allegedly
" mired himself in details" was participating in a drill for the first time. Mr. Lieberman has indicated that such mistakes will not be re-peated by members of his staff.)
345 Refuted by record See L.F. 239-40 (LERO's response to the imped-iments during the Exercise clearly demonstrate that the Plan is not fundamentally flawed.)
IV. Contention EX 34: Backup Route Alert Notification 347 Refuted by record; un- FEMA EX Exh. 5 at 142-43; LILCO Test. Cont.
justified inference EX 34, ff. Tr.1327, at 3-10 and Att. B; Tr.
1413-14 (Daverio), 1424-27 (Daverio, Wei-smantle),8008 (Kowleski) (LILCO and FEMA witnesses squarely addressed the issue raised by Contention EX 34 - whether the 45 minute time frame for prompt notification applies to backup route alerting systems - and stated that such a time frame serves as a goal, not a requirement. FEMA's testimony also addressed Exercise events.) See L.F. 247, 251, n. 28 (The uncertainty and inconsistency of Interveners' testimony as to whether completion of backup alert and notification within 45 minutes is a regulatory requirement or recommendation renders their witnesses' opinion on the issue suspect.)
348,n.236 Relitigation of planning Tr.1358 (Frye)(Judge Frye agreed that the issues; out of context issue of whether the LILCO siren system has a direct backup power supply was an issue liti-gated in the plan proceeding); Tr. 1359-60 (Monaghan) (Ms. Monaghan stated, but did not stipulate, that there is not a direct backup power supply to each of the individual sirens; ,
backup power is available on the grid.) '
Intervenor Proposed Finding LILCO Response Explanation 348,' n. 237 Unjustified inference; PID at 758-59 (Since NRC regulations and beyond regulatory re- guidelines do not require backup to sirens, the quirements decision to send Route Alert Drivers is volun-tary. The implication in Interveners' finding that LERO must dispatch Route Alert Drivers whenever a siren fails is erroneous.) Tr.
1420-22 (Weismantle) (However, Mr. Weis-mantle did state that there would always be an attempt to dispatch Route Alert Drivers af ter a siren fallure.)
348,n.238 Unjustified inference; PID at 758-59; s_e_e L.F. 251-52 (Timing of the relltigation of planning dispatch of Route Alert Drivers is a moot point issues since NRC regulations and guidelines do not re-quire any backup notification system.) Tr.
1365 (Daverio)(Most of the LERO personnelin-volved in the process of transmitting informa-tion to Route Alert Drivers work in the same office area, thus minimizing the time required to dispatch the Drivers); PID at 719, 723-25, 758-59 (The number of people involved in the process of transmitting information from the EOC to the Staging Areas was previously liti-gated.)
349 Beyond regulatory re- PID at 758-59; see L.F. 251-52 (NRC regulatory quirements requirements do not set time limits for a dis-cretionary backup notification system.)
349,n.240 Unjustified inference; Tr. 8042 (Miller) (Counsel for Interveners prof- 1 not supported by cita- fered the LILCO Plan has always permitted tion LERO to dispatch more than one driver per route - additional Route Drivers are provided for that possibility.) Tr. 8036-37, 8046 (Baldwin)(The FEMA evaluator at the Port Jefferson Staging Area discouraged the dis- 1 patch of multiple Route Alert Drivers.) j l
350 Beyond regulatory re- PID at 758-59; s_ee L.F. 251-52 (NUREG 0654 quirements; refuted by does not require backup notification within 45 record; out of context minutes.) FEMA EX Exh. I at 58,68,75,76; Tr. 8000 (Keller, Kowieski) (FEMA identified the backup route alerting speed as an area rec- ,
I ommended for improvement, not an ARCA.) !
l See L.F. 250 (Only the first draf t of the report l graded backup route alerting speed as an j
( ARCA.) i l
l 1
Intervenor Proposed Findine LILCO Response Explanation 350,n.242 Beyond regulatory re- PID at 758-59; se_e_ L.F. 251-52 (NUREG-0654 quirements . does not require any backup notification to failed sirens and does not require completion of discretionary backup route alert driving within 45 minutes.)
351 Unjustified inference Tr. 8010 (Kowieski), 8604-05 (Keller) (In some -
other FEMA exe' cises in New York State, FEMA Region II has found the inability to meet a 45 minute time limit an ARCA, not a " serious problem".) Tr. 8007-08 (Kowleski); se_e N.F.
238; L.F. 250, n. 27 (The decision to change the rating was a result of a policy clarification to reflect FEMA's recognition that there is no minimum time requirement in NUREG-0654 for backup route alerting.)
352 No citation; refuted by Tr. 8010-11 (Keller, Kowleski), 8015-16 (Keller) record; beyond regula- (Interveners' opinion that Route Alerting tory requirements should have been a Deficiency is without sup-port. FEMA witnesses confirmed, by a review of exercise reports, that they had never identi-fled a Deficiency for backup route alerting);
PID at 758-59; s_ee L.F. 251-52 (NUREG-0654 does not require completion of discretionary backup route alerting within 45 minutes.)
353 Beyond regulatory re- PID at 758-59; see L.F. 251-52 (NUREG-0654 quirements; unjustified does not require backup notification and sets inference; refuted by no time frame for backup notification.) See record Response to I.F. 351 (The change in rating was i a result of the clarification by FEMA of its in- I terpretation of NUREG-0654.) l 354 Unjustified inference; Tr.1357 (Weismantle)(LILCO cannot meet a 45 not supported by cita- minute time frame for notification only under tion "certain circumstances"); Tr. 8004 (Baldwin)
(Mr. Baldwin stated that LILCO did not meet a 45 minute time frame for notification in the Exercise, not that LILCO is incapable of meet-Ing such a time frame.)
! 355 Refuted by record; un- Tr. 8059-61 (Baldwin, Kowieski), 8498 (Baldwin) justified inference (The three FEMA witnesses initially rated the j l problems identified with respect to route t
alerting as an ARCA based on an " incorrect" interpretation of NUREG-0654 prior to the FEMA clarification of that guideline.)
l
I Intervenor i Proposed Finding LILCO Response Explanation 356- Unjustified inference; Tr. 8019 (Kowieski) (Mr. Kowieski stated only not supported by cita- that the ARCA rating would have been lef t in-tion tact but for the Wilkerson memorandum - he did not say that FEMA Region II had considered a Deficiency finding.)
357 Unjustified inference; See L.F. 251, n. 27; Tr. 8007-10 (Kowieski); see '
not supported by cita- also N.F. 238, n.14 (The change in rating was tion; refuted by record made to reflect a change in FEMA's interpre-tation of NUREG-0654 )
358 Refuted by record FEMA EX Exh. 4 at Att.1-5; see L.F. 252; N.F.
238 (FEMA Guidance Memorandum AN-1 states that there is "no hard and f ast time require -
ment for completing the backup route alerting process" and references 45 minutes only as a
" suggested objective".) 3 358,n.246 Refuted by record; un- FEMA EX Exh. 4 at Att.1-5; s_ee Response to justified inference I.F. 358; L.F. 252; N.F. 238, 247 (FEMA Guld-ance Memorandum AN-1 finds 45 minutes only a " suggested objective.") Tr. 1386-87, 1406, 1413-14 (Daverio) (Mr. Daverio stated only that the text of a FEMA Guidance Memorandum AN-1 excerpt states that 45 minutes is a rea-sonable time frame for completing the backup route alerting process; in Mr. Daverio's opin-lon, 45 minutes is an " optimal" time period be-cause it is the same as is required for initial notification.)
361,n.248 Outside the scope of the PID at 758 (The quality of maps provided to contentions; evidence Route Alert Drivers was litigated in the plan-used beyond scope of ning phase of this proceeding); LILCO Test, admission; relitigation Cont. EX 34, ff. Tr.1327, at Att. A (The suffi-of planning issues ciency of equipment provided to Route Alert Drivers is nowhere adduced by Contention EX 34); Tr.1002-03 (Frye)(The sufficiency of the map provided to the Riverhead Route Alert Driver was admitted only for purposes of back-ground information.)
~363 No citation; unjustified PID at 722,725 (Interveners' speculations that inference; outside the Route Alert Drivers would be slowed by traffic scope of the conten- congestion were rejected by the Licensing tions; relitigation of Board, and the LILCO Plan of mobilization was planning issues; evi- held to be reasonable); Tr. 1002-03 (Frye) (Tes-dence used beyond timony on traffic congestion in the EPZ was scope of admission admitted only for purposes of background information.)
i Intervenor Proposed l
Finding LILCO Response Explanation 363,n.250 Unjustified inference; PID at 758-59 (The number of Route Alert not supported by cita- Drivers was litigated in the planning phase of tion; refuted by the this proceeding); Tr.1385 (Daverio) (Mr.
record; outside the Daverio noted that the LILCO Plan also does scope of the conten- not preclude assignment of multiple Route tions; relitigation of Alert Drivers for a given route.) See N.F. 240, planning issues 241(Observed times for Route Alert Drivers set out in Cont. EX 34 do not accurately re-flect notification times in an actual emergency since LILCO Plan permits assignment of multi-ple drivers per siren area.) Tr. 1452-53 (Daverio); SC EX Exh. 20 (Interveners' finding is contradictory. As their third point they state that training drills since the Exercise have continued to use only one Route Alert Driver, but two sentences later note that dur-ing December,1986 drills LERO sent out multi-pie drivers. In truth, LERO has sent out more than one Route Alert Driver per siren cover-age route in training dril19.)
363,n.251 Unjustified inference; See Response to I.F. 363.
outside the scope of the contentions; relitiga-tion of planning issues; evidence used beyond scope of admission 364 Unjustified inference; LILCO Test. Cont. EX 34, ff. Tr.1327, at Att.
out of scope of conten- A (Interveners' speculation that variability in tions; evidence used be- the size of siren territories affects time yond scope of admission needed to drive siren routes is unrelated to any issue raised by Contention EX 34 or to events that occurred in the Exercise; Contention EX 34 does not suggest that routes driven the day of the Exercise were uncharacteristic); Tr. i 1002-03 (Frye) (Testimony on variations in the size of siren territories was admitted only for the purpose of background information.)
365 Outside the scope of the LILCO Test. Cont. EX 34, ff. Tr.1327, at Att.
contentions; evidence A; se_e Response to I.F. 364 (Variability in the used beyond scope of size of siren territories was admitted for back-
! admission ground information only and not raised by Con-l tention EX 34.)
l
{ Evidence used beyond PID at 758-59 (Detection of siren f ailures may 1 366 scope of admission; out- be accomplished by a review of electrical cir-side the scope of the cuits and by a telephone survey. Both methods E__ __ _
Intervenor Proposed Findme LILCO Rcriponse Explanation 4
contamtions; relitigation were addressed in the planning litigation and ;
of planning issues; out the Licensing Board found that siren f ailures !
of context; unjustified can be detected "quite quickly" through a re-inference view of electrical circuits and that the tele-phone survey may require 90 minutes to com-plete); Tr., 1002-03 (Frye) (Interveners' testimo-ny on the length of time needed to complete a telephone survey verification of sirens and to notify and mobilize Route Alert Drivers was admitted only for the purpose of background information); LILCO Test. Cont. EX 34, ff. Tr.
1327, at Att. A (Contention EX 34 alleges only that the times clocked by Route Alert Drivers during the Exercise were too long, and does not address the length of time needed to complete a telephone survey verification of sirens and to notify and mobilize Route Alert Drivers); Tr.
8041-42,8518 (Keller)(Mr. Keller stated that it could take up to 90 minutes to establish a siren l
failure); Roberts e_t al. (Test. Cont. EX 34), ff.
Tr.1495, at 15, n. 7; Tr.1433-34 (Daverio)
(FEMA did take into account the time between siren activation and EOC's learning of a siren failure and the role of Marketing Evaluations by presuming a call to report the siren fall-ures.)
l 366,n.252 Unjustified inference Tr.1509 (Michel) (The witness states that usu-ally the 45-minute time period begins at the a time of notification of siren f allure.) Tr. 8714 (Keller)(Mr. Keller stated that beginning the 45 minute period at the time of siren f ailure is "one place to start the clock," and that is where he would start it.)
367 Evidence used beyond Tr.1002-03 (Frye) (Interveners' testimony on scope of admission; out- the length of time needed to notify and mobi-side the scope of the lize Route Alert Drivers was admitted only for contentions the purpose of background information); Tr.
1364 (Frye)(Judge Frye sustains the objection that the mobilization of Route Alert Drivers was not raised in Contention EX 34.)
367, n. 253 Outside the scope of the PID at 719,723-25,758-59; Tr.1364 (Frye) contentions; unjustified (Judge Frye sustains the objection that the mo-inference; relitigation bilization of Route Alert Drivers was not of planning issues raised in Contention EX 34); Tr. 8056-57 (Keller)(Mr. Keller rejected the suggestion that modification of the LILCO Plan to call out
l
! Intervenor Proposed Finding LILCO Response Explanation f Route Alert Drivers prior to the Alert level
- was the only way to alleviate the possibility of l delay.)
f 368 No citation; unjustified Interveners' opinion is not supported in either inference the record or by authority.
V. Contention EX 40.A. B E: Mobilization of Traffic Guides 369,n.254 Refuted by record Tr.1135-39 (Dormer, McGuire, Michel, Roberts) (Interveners' witnesses were not " gen-erally quallfled" to testify on the issues raised by Contention EX 40,in which an understand-ing of the assumptions underlying the Plan's i evacuation time estimates and the effect of deviations from these assumptions on the over-all evacuation process is crucial. Interveners' witnesses demonstrated that they have little understanding of the Plan or Plan assumptions i and admitted they have never performed any of their own evacuation time estimates for the l Shoreham EPZ.)
370, n. 255 Relitigation of planning PID at 716-25; see N.F.125,127 (Interveners' issues approach to assessing the timeliness of the Traffic Guides' mobilization is incorrect. In deciding EP Contention 27 on mobilization, the Board agreed with LILCO that the critical focus in assessing Traffic Guide mobilization should be the time needed to complete the en-tire process. Noting that "(als mobilization progresses, there will be workers in each group," the Board found that "[i]t is . . . Incor-rect, as the County urges, to simply add the times required to fully accomplish each task.
Essential operations will take place simulta-neously, not sequentially." In rejecting Inter-venors' concerns that delays in getting LERO workers into the field would make a successful evacuation impossible, the Board found that LERO "could substantially complete its mobill-zation in about 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />." While recognizing that "[u]ncertainty exists since many workers will arrive at duty stations earlier and some later than estimated," the Board considered its estimate to be " unbiased . . . Since no basis ex-ists for concluding that it either overstates or
t l Intervenor
! Proposed Finding LILCO Response Explanation understates mobilization time." LERO's per-formance during the Exercise demonstrated that the Board's estimate was correct; Traffic
! Guides were mobilized in a timely manner ade-quate to protect public health and safety. In an attempt to obscure this fact, hitervenors' approach is to analyze separately the times taken for the " call-up", " dispatch", and "de-ployment" of the Traffic Guides. Focusing on the times at which the last Traffic Guide from each Staging Area completed these sub-tasks, Interveners then conclude that the overall mo-bilization was untimely. While Interveners' tactic offers them their best opportunity to in-terpret the record to their own advantage, it is not the perspective which the Board adopted when it estimated mobilization time in the PID, and it is not the correct perspective for assessing LERO's performance in the Exercise.
Staff agreed with LILCO's position on this mat-ter.) See Response to LF. 392, n. 267 (More-over, Interveners are inconsistent in their use of their own terms.) Tr. 2208-14 (McGuire, Michel), 2256-57 (Roberts), 2215-16 (Michel)
(Interveners' witnesses appeared to retreat from their position that mobilization timeli-ness should be judged on a step-by-step ap-proach.)
371 Out of context; outside Tr. 8091(Keller)(A FEMA witness noted that the scope of the con- he did not know "whether we would have said tentions an additional deficiency . . .. [M]y inclination is, based on the way we have worked in the past, that we would have said one defi-ciency . . .." The witness explained that sever-al examples might have been included within the existing Deficiency.) Tr. 8095-97 (Keller, Kowieski); SC EX Exh.106 (The so-called "near Deficiency" was noted only because of one par-ticular instance of a Traffic Guide giving wrong information, not because of the "fre-quency and severity of misinformation con-veyed." Moreover, the reference to alleged
" misinformation" is outside the scope of the contention, which deals only with Traffic Guide mobilization.)
s Intervenor Proposed .,
Finding LILCO Response Explanation l
! 375 Not supported by cita- Tr.1577 (Weismantle) (Mr. Weismantle specifi- 3 l tion; refuted by record cally refused to say that Traffic Guides " speed l up" traffic movement since "[s] peed up is rel-ative".) Tr. 1713-14 (Lieberman) (Mr. Lieber-man also disagreed with Interveners' assump-tion that Traffic Guides " speed up" evacuation traffic.)
376 Unjustified inference; PID at 811; Tr. 417-418 (Lieberman) (Assisting outside the scope of the with traffic impediments is not, as Interveners contentions imply, a common task of the Traffic Guides, due to the estimated low frequency of acci-dents requiring rerouting. Moreover, this issue is outside the scope of Contention EX 40, which deals with the timeliness of the Traffic Guides' mobilization.)
377' Not supported by cita- See L.F. 259 (LILCO admitted that all TCPs tion " served useful purposes," not that Traffic Guides are " expected to perform many impor-tant evacuation-related f unctions".)
378,n.260 Outside the scope of the LILCO Test. Cont. EX 40, ff. Tr.1548, at contentions; beyond Att. A (Interveners' complaint that the Exec-regulatory require- cise did not test LERO personnel's ability to ments; unjustified infer- "actually carry out their duties" is not an issue ence raised by Contention EX 40.) 10 C.F.R. Part 50, App. E., IV. F.1 (Federal regulations pro-vide that exercises are to test as much of the emergency plan as is " reasonably achievable without mandatory public participation. . . .")
Tr. 8081 (Keller); FEMA EX Exh.1 at 22 (Be-cause of the " legal authority issues", FEMA never intended to ask LERO personnel to dem-onstrate such functions as blocking off streets and directing traffic.)
379 Relitigation of planning PID at 724,807-08: see e Response to I.F. 385; issues Tr.1849 -(Weismantle) (One of several assump-tions used in the Plan's evacuation time esti-mates is that Traffic Guides will be in place at the expected onset of congestion, approxi-mately one hour af ter the evacuation recom-mendation. This assumption, however, is not
" critical" to LERO's ability to implement the Plan in a manner adequate to protect public health and safety. The Board has found that the " consequences of a f ailure to mobilize LERO before evacuation begins are relatively
l Intervenor. !
Proposed f Finding LILCO Response Explanation
]
small because an evacuation unaided by LILCO traffic guides could still be accomplished al-though it would take more time than the con-trolled evacuation." In accepting LILCO's evacuation time estimates, the Board recog-nized that these estimates were "in some cases l premised on near optimal distribution of traf-fic in the network and full performance of traffic guides" but noted that evacuation time estimates "are not highly sensitive to moderate deviations from optimal performance." In short, the Board did not require that LERO ;
l demonstrate that its Traffic Guides could-achieve this hypothetical " full performance".)
381,n.261 Relitigation of planning S_ee_ Response to I.F. 370, n. 255 (Call-up times issues are not a relevant inquiry if, as was demon-strated during the Exercise, overall mobiliza-tion of the Traffic Guides is achieved in a manner adequate to protect public health and safety.)
38 % Relitigation of planning See Response to I.F. 370, n. 255, 406 (The sta-383 issues tus of the Traffic Guides' mobilization as of 9:00 and 9:40 is irrelevant as to whether over-all mobilization was achieved in a manner ade-l quate to protect public health and safety. The
' time 9:00 has no independent significance and ,
is unrelated to whether LERO "substantially mobilized" in "about 3-hours" or whether the Traffic Guides were in place approximately one hour af ter the evacuation recommenda-tion. The time 9:40, when the General Emer-gency was declared, is an Exercise artif act and does not bear on the timeliness of the overall mobilization.)
384 Relitigation of planning See Response to I.F. 370, n. 255 (The allegation issues; unjustified infer- that call-up times were " slow" during the Exer-ence cise is irrelevant since the overall process was '
achieved in a manner adequate to protect pub-lic health and safety.) Tr. 1766,2053 (Weismantle)(LERO workers knew only the date, not the specific time, they would be called out. The inference that they benefited from knowing in advance is unjustified specu-lation.)
Intervenor Proposed . .
Finding 1.ILCO Response Explanation 385 Relitigation of planning See Response to LF. 370, n. 255 (LERO's al-issues; evidence used leged " slow" call-up times would not " severely beyond scope of admis- impair" LERO's ability to implement an evacu-sion ation, since it is overall mobilization that is important in protecting public health and safe-ty.) PID at 724 (The statement that " based upon the f act that an order to evacuate the EPZ could follow the declaration of a Site Area Emergency more rapidly than was the case during the Exercise" is an irrelevant comment which attempts to revisit EP Contention 27.
In ruling on EP Contention 27, the Board noted that "there are accidents that could progress to the general emergency stage before the EOC or staging areas could be activated, and that would allow inadequate time to go through j LILCO's planned mobilization process before '
evacuation began." The Board could " find no i defect in planning, however, since complete and timely mobilization under those conditions is simply impossible. The consequences of a failure to mobilize LERO before evacuation be-gins are relatively small because an evacuation unaided by LILCO traffic guides could still be accomplished although it would take more time than the controlled evacuation.") Tr.1003 (Frye)(The testimony regarding a fast-breaking emergency was admitted for background only.)
385,n.263 Relitigation of planning See Response to I.F. 370, n. 255 (Interveners issues ignore the Board's earlier finding that mobill-zation activities can occur simultaneously.)
386 No citation; unjustified See Response to I.F. 384 (Interveners errone-inference ously assert that the " slow call-up times" are suspect because LERO workers knew in ad-vance of the Exercise.)
386,n.264 Relitigation of planning PID at 717; LILCO Test. Cont. EX 40, ff. Tr.
Issues 1548, at 3 (The Board has recognized and ap-proved LILCO's plans for minimizing travel distances and travel times through the use of
, prioritized callout lists; the entire lists contain a 50 percent excess of the number of LERO field personnel needed to implement the Plan, making it unlikely that the Traffic Guides liv-ing furthest from Shoreham would need to be called.)
l
Intervenor Proposed ;
Findlar LILCO Response Explanation !
-387 Relitigation of planning See Response to I.F. 370, n. 255 (The Traffic j issues; not supported by Guides' dispatch times are not relevant to .
citation whether their overall mobilization was achieved in a manner adequate to protect pub-lic health and safety.) FEMA EX Exh. 5 at 9; Tr. 8081-83 (Keller, Kowleski); FEMA EX Exh.
1 at 74-75 (FEMA agreed only that the Riverhead Traffic Guides were not dispatched in a timely manner.)
388 Unjustified inference; See L.F. 273; LILCO Test. Cont. Ex. 40, ff. Tr.
not supported by cita- 1548, at 4-5,12,17 (Interveners misrepresent tion LILCO's position in its prefiled testimony and Proposed Findings. LILCO explained that its discussion of intermediate times for Traffic Guides from Riverhead was necessitated by the lack of data on overall mobilization of Traffic Guides from that Staging Area.)
339 Relitigation of planning PID at 725; s_ee Response to I.F. 442, n. 296; issues; unjustified infer- LILCO Test. Cont. Ex. 40, ff.1548, at 20-21 ence (Interveners attempt to revisit EP Contention 27 by implying that it was improper that the Traffic Guides were not " dispatched promptly" once they arrived at the staging areas. The ;
Board has dismissed "the County's assertion . . . l that the activities that are planned to take place in staging areas constitute excessive de-laysin the mobilization of emergency workers," finding that "[c]learly, workers must be briefed and issued equipment." More-over, Interveners note the single example of the 30-minute wait for equipment and con-clude that the entire process is too " time-consuming." The 30 minutes needed by the Riverhead Traffic Guides to pick up equipment did exceed the Board's estimate that that spe-cific task would take about 10 minutes, but LILCO has taken appropriate steps to alleviate this problem, including the installation of an-other door on the equipment trailer.)
- 390, Unjustified inference; PID at 717,723-25 (Interveners imply that it I 390,n.265 relitigation of planning was improper or ill-advised that Traffic Guides h issues were not dispatched until af ter the evacuation order was given. The Board has approved this Plan provision, noting that "(d] riving bus l routes and guiding traffic . . . are evacuation specific.")
f Intervenor l Proposed Finding LILCO Response Explanation 391 Relitigation of planning See Response to I.F. 370, n. 255 (The dispatch issues times are irrelevant since overall mobilization was achieved in a manner adequate to protect public health and safety.)
392 Not supported by cita- Tr. 8591(Keller)(The FEMA witness did not tion say that LERO should have completed the en-tire dispatching process, which includes job briefing, equipment procurement and checking radio operability, in 10-15 minutes. He said that it should have taken the Traffic Guides about 10-15 minutes to get their equipment.)
392,n.267 Refuted by record See I.F. 370, n. 255 (Interveners manipulate their own definition of " dispatch." Previously, Interveners said that " dispatch" referred to the
' time from when the Staging Areas were first instructed to send Traffic Guides into the field until the last Traffic Guide lef t his Staging Area. In describing the mobilization of the Port Jefferson Traffic Guides, Interveners have " dispatch" start at the time Traffic Guides first arrive at the Staging Area, a time prior to when the Staging Area was instructed to send Traffic Guides into the field.)
392,n.268 Unjustified inference LILCO Test. Cont. EX 40, if. Tr.1548, at 19-20 l
(Interveners' concerns over LILCO's alleged
" poor management" are misplaced. In the event of an actual emergency, lunches would not be provided to LERO field workers in a manner that could delay their mobilization.)
394 Relitigation of planning PID at 720; se_e N.F.128 (Interveners wrongly issues assert that the " Plan itself" requires Traffic Guides "to be fully mobilized and at their TCPs at or about the time evacuation begins." This language, found in Plan, App. A at V-2, was discussed in detail during the earlier proceed-ing. Mr. Lieberman explained that it was a traffic modeling assumption that Traffic Guides were to be in place approximately one hour af ter the evacuation recommendation.
The Board accepted this explanation, noting in the PID that "[m]odeling work on traffic as-sumes that traffic guides will be in place when congestion begins to occur approximately 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> af ter the order to evacuate." Moreover, the Board recognized that "[a]Il traffic
_----_________d
.-9 3-Intervenor-FW
' Finding _LILCO Response Explanation guides . . . need not be ready to depart the staging area at the time an order to evacuate .
is given." In short, the Board has determined
.that the proper inquiry in' determining whether Traffic. Guides are mobilized in a timely man-ner is whether they are at their posts at the time congestion is predicted to begin to devel-op: approximately one hour af ter the evacua-tion recommendation is given. Staff agrees.
During the Exercise, LERO demonstrated that its Traffic Guides can satisfy that standard in a manner adequate to protect public health and safety. In an effort to obscure this fact, Inter-venors now ask the Board to read the language of App. A at V-2 in a vacuum and wrongly con-clude that it is a Plan " requirement".)
394,n.269 Refuted by record; See Response to I.F. 394,395 (LILCO has not relitigation of planning " confused" the concepts of evacuation order issues and evacuation process. LILCO has clearly stated the respective positions of both sides.)
PID at 716-25 (Interveners' claim that there is a " regulatory requirement" that Traffic Guides be in place before the evacuation process be-gins is an attempt to revisit EP Contention 27. l The Board specifically rejected this argument when Interveners raised it in the earlier pro-ceeding.)
395 Refuted by record; See Response to I.F. 394; L.F. 258,262-63; relitigation of planning LILCO Test. Cont. EX 40, ff. Tr.1548, at 6-10 issues (Interveners mischaracterize LILCO's position.
LILCO har not " conceded" that in order for a controlled evacuation to take place, all Traffic Guides must be fully mobilized when the evac-uation begins, nor has LILCO argued that it need not demonstrate that its Plan can achieve a controlled evacuation. LILCO maintains that the relevant question is whether the Traffic Guides necessary to realize a " controlled" evacuation are in place at the onset of conges-tion, expected to begin approximately one hour l af ter the evacuation recommendation is given.) l r
i 1
PID at 724; see Response to I.F. 398, 404; Tr. !
L 396 Relitigation of planning _
issues 1850-51 (Lieberman) (LILCO did not " dispute" that it should achieve a controlled evacuation.
Interveners have missed the point. The criti-cal inquiry is whether, during the Exercise, l
l l _ __ __ _ _ _ _ _ _ _ _ __ - __ ___m
J Intervenor Proposed Finding LILCO Response Explanation Traffic Guides were mobilized in a manner which was adequate to protect public health and safety. Interveners incorrectly assume -
that if Traffic Guides are not in place at the start of the evacuation process, the evacuation will be " uncontrolled" throughout the entire evacuation process. Mr. Lieberman plainly re-jected this idea as being "too restrictive,"
given that there is a " continuum of possibilities that range between the two extremes" of a controlled and an uncontrolled evacuation.
The Board has recognized this: "[ T]he l staffing of key posts by emergency workers would occur as a distribution in time. Workers would arrive to take up duties during the evac-uation which itself would require 5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> to 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br />,30 minutes. The Board concludes that
- this would have some interpolated effect on the overall evacuation time." LILCO has shown that the " interpolated effect" caused by the delay of some Traffic Guides in staffing their TCP's during the Exercise would not have been significant enough to adversely affect public health and safety.)
396 n.270 0 Refuted by record See Response to LF. 395-96 (LILCO's position is l' not " contradictory". LILCO has properly as-
!- serted that the key inquiry is whether the Traffic Guides were mobilized in a manner ad-equate to protect public health and safety.)
397- Refuted by record See Response to I.F. 398; LILCO Test. Cont.
EX 40, ff. Tr.1548, at 6-10 (The purpose of the Exercise was to test LERO's ability to imple-ment its Plan in a manner adequate to protect public health and safety, not to determine whether LERO could " implement a controlled evacuation".)
398 Not supported by cita- FEMA EX Exh.1 at xv-xvil, 14, 21-22 (The tion; relitigation of statement "that LILCO's Plan must provide the planning issues; refuted means for achieving a controlled evacuation by record cannot be disputed" is incorrect. This issue is still in dispute following the Commission's re-mand order in CLI-86-13 regarding LILCO's
" immateriality" argument and is pending be-fore the OL-3 Board. Moreover, the citations do not support Interveners' assertion that the Exercise Was " structured" by FEMA to test
Intervenor Proposed Finding LILCO Response Explanation whether LERO could " mobilize its Traffic Guides in time to have all TCPs staffed when the evacuation process began, or at least shortly thereaf ter".) See Response to I.F. 394; Tr. 8136 (Kowieski) (The statement by the FEMA witness that "when evacuation starts it is reasonable to expect if the plan calls for it that the traffic guides should be there"is a misinterpretation of Plan, App. A at V-2.) Tr.
8098-99 (Keller)(A FEMA witness correctly recognized that the Plan assumes that Traffic Guides will be in place approximately one hour j
af ter the evacuation recommendation.)
398,n.271 Refuted by record See Response to I.F. 398 (Contrary to Interve-nors' claim, the issue of whether LILCO is re-quired by the regulations to demonstrate that its Plan can achieve a controlled evacuation is still in question and is pending before the OL-3 Board.)
399 Relitigation of planning See Response to I.F. 394 (The Plan cannot be issues properly construed to require that Traffic Guides be at their posts "when the evacuation process begins, or shortly thereaf ter".)
400 Relitigation of planning PID at 662,668 (The issue of " volunteer" evac-l 1ssues uation; i.e., before an evacuation order is given, has been litigated. The Board specifi-cally dismissed Interveners' identical concerns raised during the planning proceding, finding that "information given to the public during a radiological emergency that is specific to the developing situation willinfluence the predom-inant public response . . .. Before acting, peo-ple will seek information beyond the first no-tice that an accident has occurred".)
401, Relitigation of planning See Response to I.F. 400,404 (In the PID, the 402 issues Board has accepted LILCO's position that its planning need not account for " volunteer" evacuation. LERO staffed its TCPs in a man-ner adequate to protect public health and safe-ty.)
403 Relitigation of planning PID at 786; se_e Response to I.F. 394 (It was not issues necessary for Traf fic Guides to be in place at 10:44, which is the estimated time that the first evacuees would enter onto the roadways.
Intervenor Proposed Findine LILCO Response Explanation l Congestion would be expected to begin in some i areas at approximately.11:24, one hour af ter the order to evacuate.)
404' Refuted by record See L.F. 267-75; LILCO Test. Cont. EX 40, ff.
Tr.1548, at 8-9,13-19 (LERO staffed its TCPS in a manner adequate to protect public health and safety. With regards to Traffic Guides from the Patchogue Staging Area, as of 11:25, 18 of 28 TCPs, including all of the " critical" ones, were staffed. All 28 were manned within I hour,16 minutes of the evacuation recom-mendation. As for the Port Jefferson Traffic Guides, as of 11:30,4 of 17 " critical" TCPs were staffed. Twelve of 17 were manned by i 11:45,15 of 17 by 11:58, and all 17 by 12:13.
The resulting 49-minute delay between the ex-i pected onset of congestion at 11:24 and the staffing of the last " critical" TCP would have i extended the estimated evacuation time by 4 i
some amount less than 19 minutes. This exten-sion in time would not be significant enough to affect public health and safety. As for the Riverhead Traffic Guides, the existing data in-dicate that all TCPs were probably manned by approximately 12:10. - The staffing of all of the Riverhead TCP's by 12:10 was adequate to pro-tect public health and safety since the overall evacuation time would not have been signifi- i
~
cantly lengthened.)
405 Relitigation of planning See Response to I.F. 394 (The " Plan assump-issues; refuted by record tion"is that Traffic Guides will be in place at the expected onset of congestion, approxi-mately one hour af ter the evacuation order.)
See Response to I.F. 404 (LERO staffed its i TCPs in a timely manner adequate to protect public health and safety.)
-405,n.275 Refuted by record LILCO Test. Cont. EX 38 and 39, f f. Tr. 3207, at 70-71 (Interveners erroneously assert that the EBS message concerning Traffic Guides
" violated" the "public's expectations" and that i
this "could have caused serious problems." The l message in fact said that evacuees "will be di-rected along evacuation routes by trained Traf-fic Guides," not that the Traffic Guides were already in place (emphasis added).)
I i
l
! l I -
L L 3 Intervenor l Proposed Finding LILCO Response Explanation
'406 Relitigation of planning PID at 720,723,725; see Response to I.F. 370, issues n. 255,394 (Interveners mischaracterize the Board's two time estimates as strict " require- 1 ments" which LERO must " meet". The "3- I hour" figure for mobilization is the time the Board estimated it would take LERO to mobi -
lize substantially. The "1-hour" figure for when Traffic Guides should be in place is the Board's recognition that this is one of the as-sumptions used in the DYNEV traffic modeling work from which the Plan's evacuation time estimates were derived. The actual " require-ment" which the Board established is found in the statement that the Board would not accept ~
" excessively long evacuation times under any circumstances" and that it would not accept a plan "that did not provide for substantial assis-tance to the public in an evacuation." The Board held LILCO " responsible to make a rea-sonable effort to achieve prompt and expedi-tious evacation of the EPZ under all condi-l tions." The Exercise demonstrated that LILCO l 1s fully capable of meeting that responsibility.)
406,n.276 Refuted by record See Response to I.F. 370, n. 255, 406 (LILCO has clearly stated its position on the proper standard for judging the timeliness of Traffic ,
Guide mobilization.)
l 407 Relitigation of planning See Response to I.F. 406.
Issues 407,n.277 Refuted by record See Response to I.F. 404 (The Traffic Guides "substantially mobilized" within 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br /> in a manner adequate to protect the public health and safety.)
408 Relitigation of planning See Response to I.F. 406.
issues 409 Refuted by record See Response to I.F. 404 (The mobilization times for the Patchogue Traffic Guides indi-cate that the Board's 3-hour estimate is achievable. The delayed responses by some of the Port Jefferson and Riverhead Traffic Guides were not so significant as to indicate that the public health and safety would be im-paired.)
Intervenor Proposed Finding LILCO Response Explanation l
409,n.278 Refuted by record See Response to I.F. 404.
410 Relitigation of planning See Response to I.F. 370, n. 255, 404 (Interve-issues; refuted by record nors focus on the time that the last Traffic Guide from each Staging Area reached his i TCP. This is irrelevant, since the staffing of the critical TCPs was achieved in a timely manner. While some Traffic Guides were not at their TCPs as of exactly one hour af ter the evacuation recommendation, the effect of this l delay on overall evacuation time would not have been significant enough to affect public health and safety.)
411 Refuted by record; See Response to I.F. 404 (The mobilization relitigation of planning times were not " extremely long"; LERO has 4 issues demonstrated that it can mobilize its Traffic Guides in a manner adequate to protect public health and safety. Accordingly, the LILCO Plan is not fundamentally flawed.) See Re-sponse to I.F. 394 (Interveners' assertion that i the nature of their traffic-related functions ;
requires Traffic Guides to be in place at the l outset of an evacuation attempts to revisit EP Contention 27.)
411,n.280 Relitigation of planning PID at 722,724; Prehearing Conference Order l issues; evidence used (Ruling on Contentions and Establishing Dis-beyond scope of admis- covery Schedule) at 22 (Oct. 3,1986) (The ref-sion erences to congestion caused by " voluntary" .
evacuees and the effeet of pre-evacuation I travel on mobilization are issues which Inter-venors attempted to raise in Contention EX '
40.D. The Board denied admission to that subpart, since these issues have been litigated and decided in LILCO's f avor.) Tr.1003 (Frye) ,
(The Board admitted this testimony for back- !
ground purposes only.)
412 Refuted by record; LILCO Test. Cont. EX 40, ff. Tr.1548, at 10; relitigation of planning Tr.1860-61 (Lieberman) (Interveners wrongly issues state that all 47 " critical" TCPs are " capacity-enhancing." Mr. Lieberman has explained that ;
only 12 of the 47 are capacity-enhancing; the others are deemed " critical" for other reasons.)
Sjte Response to I.F. 394 (The statement "in LILCO's view, these TCPs need only be staffed when congestion begins"is another attempt to revisit EP Contention 27.)
Intervenor Proposed Finding LILCO Response Explanation 412,n.281 Not sup[nrted by cita- LILCO Test. Cont. EX 40, ff. Tr.1548, at 7-8, tion; refuted by record 10; Tr.1696-97,1861-67,1993 (Lieberman)
(LILCO did not say that "it is imperative" that the 12 capacity-enhancing TCPs be staffed within one hour af ter the evacuation begins in order to achieve a controlled evacuation. Mr.
Lieberman explained that to the extent these TCPs are not staffed by that time, there is an
" interpolated" effect on the overall evacuation time.) LILCO Test. Cont. EX 40, ff. Tr.1548, at 10; Tr.1871-76 (Lieberman) (There is no "in-consistency"in LILCO's use of the critical TCP concept nor is it "an attempt to justify poor performance." The categorization of only some critical TCPs as " capacity-enhancing" was explained in LILCO's pre-filed testimony.
Moreover, Mr. Lieberman explained that cer-tain "more critical" TCPS are manned af ter other "less critical" TCPs because the one-way road conversion performed by these "more critical" TCPs is not to be put into place until at least one hour af ter the start of the evacua-tion.)
413, Refuted by record; not See L.F. 258,262; LILCO Test. Cont. EX 40, ff.
414- supported by citation Tr.1548, at 7-11; Tr.1859-65 (Lieberman) (The Plan does not contain any " specific time lim- (
its" for mobilization. Further, the concept of j critical TCPs does not " contradict" the Plan; l the criteria used to develop the priority man-ning lists in OPIP 3.6.3, Att. 7 are the same criteria used to define critical TCPs.) PID at 724; see Response to LF. 414, n. 282; Tr.1864-65 (Lieberman)(The concept of critical TCPs does not contradict the PID, which recognizes them as " key posts".)
414,n.282 Refuted by record; See Response to I.F. 412, n. 281; Tr. 2150, relitigation of planning 2163-64 (Lieberman)(Certain of the 12 issues capacity-enhancing TCPs are not mobilized first under the priority manning schedule for specific reasons. The rapidity at which con-gestion occurs at given intersections was not a
" major consideration" in deciding on critical traffic control points. Some non-critical TCPs, located within two miles of the plant, are nevertheless manned first because conges-tion at those intersections develops early in the evacuation process and dissipates within
-100-f 'Intervenor Proposed Findinr LILCO Response Explanation two and a half hours. Also, some "more criti-cal" TCPs are manned later because the one--
way road conversion they implement is not put into place until at least one hour after the start of the evacuation.) See Cordaro, et al.
(Contention 27), ff. Tr. 7043, at 26 (Contrary to Interveners' assertion, the concept that not all traffic control points have the same effect on evacuation times was litigated during the prior proceeding. There, Messrs. Weismantle and Lieberman presented written testimony which stated: "In addition, Figure 8.3 of Appendix A (also Attachment 7 to OPIP 3.6.3) prioritizes the sequence in which traffic con-trol posts are manned. The reason for this pri-oritization is to ensure that the traffic control strategies associated with those posts, and spe-cial traffic control strategies associated with those posts, having the greatest effect on evacuation times are manned, or implemented, first." Accordingly, Interveners' " serious res-ervations" concerning the priority manning schedules are baseless.)
415 Refuted by record See Response to I.F. 412, n. 281 (LILCO did not
" acknowledge" that the critical TCPs "must" be staffed within one hour of the evacuation rec-commendation in order to achieve a controlled evacuation.) See Response to I.F. 404,412,n.
281 (LILCO's performance was not " seriously deficient." Though not every critical TCP was staffed as of exactly 11:24, this would not have I had a significant effect on overall evacuation time and, hence, on public health and safety.)
415, n. 283 Refuted by record See Response to I.F. 396, 404 (The delay in staffing some of the 12 capacity-enhancing critical TCPs would have resulted in an " inter-polated effect" on overall evacuation time, but ;
as this would have been some amount less than !
19 minutes, this would not have been signifi-cant enough to adversely affect public health and safety.)
l 416,n.284 Out of context Tr.1994 (Lieberman) (Mr. Lieberman testified that capacity would have been doubled only on the portion of the roadway that is converted to one-way flow. The subsequent analysis which LILCO performed on the effect that this
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Intervenor Proposed Finding LILCO Response Explanation i
doubled capacity would have had on overall evacuation time was not admitted by the Board at the urging of Interveners.)
i h 417 Refuted by record See L.F. 269-70; LILCO Test. Cont. EX 40, ff.
l Tr.1548, at 8-9; Tr.1993-2012 (Lieberman, f Paris, Shon) (LILCO did provide a " convincing analysis" to support the linear relationship concept. As Mr. Lieberman explained, Inter-venors' " intuitive" argument suffers from a misapprehension about traffic flow under the congested conditions that will be present dur-ing an evacuation. Therefore, while for the in-dividual the effect of delay is non-linear, the effect on the overall evacuation process is es-sentially linear.)
417,n.285 Not supported by cita- Tr.1993-2012 (Lieberman, Paris, Shon) (At the tion hearing, the Board did not indicate that it was
" unwilling to accept" the linear relationship, nor did it " conclude" that LILCO had " failed to demonstrate" that relationship.)
418; Relitigation of planning PID at 722,723-25; Tr.1135-39 (Dormer, 418,n.287 issues McGuire, Michel, Roberts) (Interveners' wit-nesses were not qualified to render an opinion l on the linear relationship argument. None is a traffic engineer, and none has done an evacua- !
tion time estimate. Moreover, Interveners )
raised the identical assertion that Traffic j Guides would " lose control of the streets" in i the earlier litigatica on EP Contention 27; it )
was rejected by the Board.)
419 Unjustified inference PID at 783; LILCO Test. Cont. EX 40, ff. Tr.
1548, at 8-9; Tr.1993-2012 (Lieberman, Paris, Shon) (Mr. Lieberman's " unsupported opinion" is the professional assessment of a recognized expert who has demonstrated an impressive knowledge of the DYNEV traffic model ap-proved by the Board. Moreover, LILCO did perform a formal analysis, but at Interveners' '
urging it was not admitted.) l l
420, Refuted by record Tr.1949-51 (Lieberman) (LILCO does not "un-420, n. 288 dervalue" the other functions performed by Traffic Guides but properly recognizes that minimizing total evacuation time is the princi-pal factor affecting public health and safety.) j l
l
i
-102-Intervenor Proposed l Finding LILCO Response Explanation 421,- Outside the scope of the See Response to I.F. 216-345 (Interveners' Pro-422, contentions posed Findings concerning LERO's response to 423 the impediments are outside the scope of Con-tention EX 40 and are discussed in detail else-where.)
423,n.289 Refuted by record LILCO Test. Cont. EX 40, ff. Tr.1548, at 3; LILCO Test. Cont. EX 41, ff. Tr. 272, at 16 (Since LERO's call-up lists contain a 50 per-cent surplus of field personnel, LERO has the flexibility to dispatch additional Traffic Guides to specific TCPs if the need arises. Moreover, LERO demonstrated this capability during the Exercise in response to the fuel truck impedi-ment.)
424 Outside the scope of the See Response to I.F. 421-23.
contentions 425 Out of context Tr.1581,1985 (Lieberman) (The " general rein-forcement" and assistance to " specific individ-uals" are "more a salutary function than any-thing else" and does not affect overall evacua-tion time.)
425,n.290 Outside the scope of the See Response to I.F. 371.
contentions 426 Relitigation of planning PID at 790-92, 794; Tr.1677-80 (Lieberman) issue; evidence used be- (The issue of deviation by evacuees from their yond scope of admission assigned routes has been previously litigated.
The Board, based on sensitivity runs by LILCO, noted that "[o]verall evacuation time is not l sensitive to deviations in route compliance" I and rejected Interveners' arguments about route compliance as " unpersuasive".) Tr.
1003-04 (Frye)(The Board admitted this testi- I mony as "necessary background to understand Suffolk's position" only.)
427, No citation See L.F. 259,262; LILCO Test. Cont. EX 40, ff.
428 Tr.1548, at Atts. B, C, D (Lieberman, Weis-mantle)(Interveners' lists of TCPs are post hoc j creations which have not been discussed at any l point in the record. Moreover, because Traffic l Guides could not affect the supply side of the I supply / demand relationship at the TCPs listed, their " late arrival" at those posts would not have resulted in an increased overall l
_ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ 1
-103-Intervenor Proposed Finding LILCO Response Explanation evacuation time. Interveners have failed to demonstrate any adverse effect on public health and safety.)
429, Relitigation of planning PID at 722-23,790-92,794,805-07 (The asser-430, issues; beyond scope of tions that channelization and certain other 431, admission traffic control strategies would be ineffective, l 432, that these techniques could not be imple-433, mented unless Traffic Guides were in place at 434, the beginning of an evacuation, and that cer-435, tain of LERO's traffic control strategies and 436, routes are inappropriate and illogical attempt 437, to revisit several planning issues previously lit-438, igated. The Board found generally that 439 LILCO's sensitivity analyses demonstrate that Interveners' concerns " simply do not have the asserted effects on the overall network".) Tr.
1003-04 (Frye) (These assertions are a recapit-ulation of Interveners' prefiled testimony which was admitted solely for purposes of background.)
442,n.296 Refuted by record LILCO Test. Cont. EX 40, ff. Tr.1548, at 20-21 (The changes made to the Riverhead equip-ment trailer will alleviate the problems in distributing equipment that were identified by the Exercise.)
444, Relitigation of planning See L.F. 279-80 (Interveners' conclusion that 445 issues; refuted by record LILCO's proposed fixes will not solve the "sig-nificant problems displayed" during the Exer-cise is contingent on the assertion that Traffic Guides must be in place before an evacuation order is given. Since that assertion is errone-ous, Interveners' criticisms of LILCO's pro- '
posed fixes are irrelevant.)
446 Relitigation of planning PID at 778-79 (LILCO's proposed fixes dealt issues with the Traffic Guides located within two miles of the station because this is the primary area of concern. Interveners' complaint that LILCO has " ignored" intersections outside the two mile zone rests on unsupported speculation as to which zones would be evacuated in the event of a radiological emergency. Interveners imply that an evacuation of the entire EPZ would be necessary in every circumstance.
The Board has noted that this idea is "inconsis-tent with the nouon of the ' range of protective
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'MCervenor, )
Pmposed i Finding LILCO Response Explanation f
actions' mentioned in 10 C.F.R.
S 50.47(b)(10)".)
447 Unjustified inference; SC EX Exh. 35 at p.1(Interveners mischarac-refuted by record terize the prestaging in the December drills as having " bypassed" LERO's normal call-up pro-cedure. This was done for the specific purpose of providing an " opportunity to brief LERO personnel on procedure changes and reinforce earlier training on OPIP revisions" and was not designed, as is inferred, to avoid the alleged "significant delays associated with call-up dur-ing the FEMA Exercise".) Tr. 2123 (Weismantle)(The statement that "the drills did not begin until they arrived" is incorrect.)
448 No citation See L.F. 266; LILCO Test. Cont. EX 40, ff. Tr.
1548, at 3 (The statement that "this way, LILCO attempted to eliminate the delays it had experienced during the Exercise when all 165 Traffic Guides had been dispatched" is baseless and incorrect. Moreover, Interveners ignore the fact that, during the Exercise, LERO called out its entire complement of field workers, which comprised 150 percent of the number needed to implement the Plan. This was an un-precedented demonstration of an offsite emer-gency response organization's mobilization ca-pability. Training drills do not require such large participation.)
448,n.298 No citation; refuted by See L.F. 278; LILCO Test. Cont. EX 40, ff. Tr.
record 1548, at 20 (The unsupported statement that "there have been no changes in the briefing, dispatching, or deployment procedures for these Traffic Guides" contradicts uncontested evidence in the record that these changes have been made.)
449, Out of context; refuted Tr. 2126-30 (Weismantle); SC EX Exh. 35 (In-450 by record tervenors do not mention that in two of the five cases, the Traffic Guides were in place within a matter of a very few minutes of the one hour goal and that in one case only one Traffic Guide f ailed to man his post promptly.
In the other two cases, some Traffic Guides were delayed a maximum of 15-18 minutes.
The drill reports do not " buttress" Interveners'
) conclusion that the mobilization of Traffic Guides was " seriously deficient".)
-105-Intervenor Proposed Finding __ LILCO Response Explanation 451 Refuted by record See Response to I.F. 370, n. 255, 394, 395, 404, 406-09 (Interveners have failed to identify any results from the Exercise which demonstrate that LERO is incapable of effectively imple-menting the protective action of evacuation in the event of a Shoreham emergency.) See LILCO's Reply to Interveners and NRC Staff's Proposed Findings of Fact and Conclusions of Law on the February 13,1986 Shoreham Emer-gency Planning Exercise S II.B. (FEMA's find-ing of a Deficiency does not "by definition" preclude a reasonable assurance finding.)
VI. Contention EX 36: Wind Shif t 456 Not supported by cita- See L.F. 291-94; N.F. 252, 254; Tr. 2560-61, tion; refuted by record; 2569-71 (Watts), 2561, 2566-67 (Weismantle) out of context (The statement that "LILCO witnesses testified l that it was unnecessary even to consider I
changing the initial PAR" improperly suggests f that LERO never considered whether the ini-
[ tial evacuation recommendation continued to I
be the appropriate recommendation during the Exercise. The record demonstrates that LERO did consider whether the initial evacuation
! recommendation remained valid. LERO per-sonnel monitored plant and environmental readings and ran dose projections at the EOC throughout the day.) Id.; N.F. 252, 254; Tr.
2569-71 (Watts), 2594 (Weismantle) (Because LERO's ongoing evaluation of plant and envi-ronmental conditions and computer dose pro-jections confirmed the continuing validity of the initial evacuation recommendation, it was not necessary to consider sheltering as an al-ternative protective action.)
457 Not supported by cita- Tr. 2398 (Watts) (Interveners' proposed finding tion; refuted by record that the LILCO procedure provides two meth-ods for determining protective action recom-mendations including "a method based solely on plant conditions" (emphasis added), is not sup-ported by the citation provided. The word
" solely" was added by the Interveners and was not part of LILCO's testimony.) See L.F. 284 (When making protective action recommenda-tions based on plant conditions pursuant to
-106- )
f 1
Intervenor 1 Proposed Finding LILCO Response Explanation 4 OPIP 3.6.1 both plant conditions and wind di-rection are evaluated.) LILCO Test. Cont. EX 36, ff. Tr. 2364, at 5-6 (The suggestion that the two methods for determining protective action recommendations are mutually exclusive is in-correct. LILCO testified that "[t]he choice of
{ protective actions is made on the basis of the projected radiation doses that would result from a release of radioactive fission products along with consideration of plant conditions".)
OPIP 2.1.1(Interveners' description of the Radi-ation Health Coordinator's role is incomplete. !
OPIP 2.1.1 provides that the Radiation Health Coordinator has "[p]rimary responsibility for calculating offsite dose projections based upon radiological release data and meterological conditions.")
459 Refuted by the record; PID at 720; See Response to I.F. 394; L.F.
unjustified inference; 256-64; N.F.128,133 (Interveners' suggestion relltigation of planning that evacuation is not " guided" unless the traf-issue; out of context fic guides are on the road and providing guid-ance when the evacuation begins attempts to relitigate issues resolved in the earlier plan-ning litigation where it was recognized that
"[a]Il traffic guides . . . need not be ready to depart the staging area at the time an order to evacuate is given. Modeling work on traffic assumes that traffic guides will be in place when congestion begins to occur approximately one hour af ter the order to evacuate." PID at 720 (emphasis added).) See PID at 786; Re-sponse to I.F. 400 (Interveners' proposed find-ing that the Radiation Health Coordinator and other LERO accident assessment personnel
" assumed that people would begin to evacuate when the first evacuation advisory was broad-cast," improperly raises a previously litigated planning issue and also is without foundation.)
LILCO Test. Cont. EX 36, ff. Tr. 2364, at 6; Tr.
2562-63 (Kessler)(The statement that "the LERO Director adopted the RHC's recommen-dations to evacuate zones A-M, Q and R" im-properly characterizes the process underlying the Director's protective action decisions by placing too much emphasis on the role of the Radiation Health Coordinator and f ailing to mention the collective input from other sources. The Director testified that he made
-107-Intervenor Proposed Finding LILCO Response Explanation the initial evacuation recommendation "af ter consulting with the Nuclear Engineer, the Ra-diation Health Coordinator, the Manager of Local Response, and the individual simulating the position of County Representative at the EOC".)
460 Out of context See L.F. 294, 296; N.F. 252-54. Tr. 2508-09 (Watts)(Interveners mischaracterize the testi-mony of Mr. Watts by suggesting that just as soon as the threshold calling for evacuation was reached, Mr. Watts did not believe it was necessary to evaluate whether the evacuation recommendation continued to be valid. Mr.
Watts testified that it was not necessary to go back and do a shelter versus evacuation calcu-I lation under the existing circumstances since it was clear, without doing a calculation, that evacuation remained the appropriate pro-tective action recommendation.) L.F. 294, 296; Tr. 2446-47, 2508-09 (Watts) (Release rates were achieving levels significantly higher (more than six times) than originally assumed in formulating the initial decision to evacuate.)
460,n.302 Not supported by cita- LILCO Test. Cont. EX 36, if. Tr. 2364, at 7; Tr.
tion; refuted by record 2454 (Watts)(The statement that Case 3 "was !
l said to ' confirm' the RHC's earlier initial evac-uation recommendation"(emphasis added) in-correctly suggests that Case 3 was run af ter i the initial evacuation decision. In f act, Case 3 was run before the initial evacuation recom-mendation.)
461 Out of context Tr. 2452 (Watts) (Interveners' proposed finding that " subsequent calculations reflected lower concentrations" does not reflect the Radiation ]
Health Coordinator's testimony that subsequent I release concentrations were only "slightly )
lower".) ]
l 461,n.303 Outside the scope of the Interveners' allegation that Mr. Watts f ailed to j contentions; relitigation seek out information about how many people of planning issues; re- were stillin their homes and how many were in futed by record; out of their cars evacuating was not raised in either context the Contention or in Interveners' testimony on Contention EX 36. Assuming that the issue is l fairly raised by Contention EX 36,it challenges I the HP-85 computer model and is therefore an
-108-
'Intervenor Pmposed Finding LILCO Response Explanation improper attempt to relltigate the HP-85 model. The HP-85 computer model was the subject of Phase I Contention EP 14 in the onsite emergency planning proceeding, which was dismissed by the Board when Interveners were found to be in default of a board order.
See Appendix B to September 7,1982 Supple-mental Prehearing Conference Order (Phase I - Emergency Planning) (Admitted Phase I Contentions); Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), LBP-82-115,16 NRC 1923 (1982).)
LILCO Test. Cont. EX 36, ff. Tr. 2364, at 6; Tr.
L 2562-63 (Kessler) (The proposed finding f ails to I reflect the f act that the Director of Local Re-sponse makes protective action decisions af ter consulting with several people other than the Radiation Health Coordinator, including the Nuclear Engineer and the Manager of Local Response.) Tr. 2395, 2594 (Weismantle) (The Manager of Local Response, to whom the Evacuation Coordinator reports, provides the Director, for example, with information re-garding traffic conditions.)
462 Not supported by cita- N.F. 253,255; I.F. 463; Tr. 2491-92 (Watts) In-tion; out of context tervenors' discussion of whole body dose and ground dose is out of context in that it fails to reflect that the child thyroid dose, and not the whole body dose, was the critical dose pathway for consideration in the decisionmaking pro-cess.) N.F. 255-56; LILCO Testimony on Con-tention EX 36, ff. Tr. 2364, at 9-11; Tr.
2487-93 (Watts)(Interveners' reference to vari-ous benefits from sheltering, neglects to men-tion that the cloud dose consists of both a thy-roid dose and whole body dose. The shielding f actor for an average Long Island home for a whole body dose is 0.7. However, they neglect to consider the shielding factor from thyroid dose which is 0.5 for the first hour and zero af-terward. As conceded by the Interveners, the .
critical dose was from thyroid inhalation.
Thus, a comparison of the relative benefit of the whole body shelter factor to the shelter factor of a car is irrelevant.)
-109-I Intervenor .
j Proposed Finding LILCO Response Explanation 463 Out of context; un- N.F. 255; Tr. 2554 (Watts) (Interveners attempt justified inference to refute LILCO's testimony that the air inside a house is as radioactive as the outside air af ter the house has been in the plume for over an hour by implying that the Radiation Health Coordinator's testimony on cross-examination does not support this concept. Interveners leave the impression that the Radiation Health Coordinator testified that in hour one people in a house would receive 50 percent dose reduc-tion, that in hour two people would still re-ceive 25 percent dose reduction, that in hour three people would still receive 17 percent dose reduction, and that in hour eight people would still receive 8 percent dose reduction.
In f act, the Radiation Health Coordinator l explained that the overall dose savings pre-l centages cited by Interveners represent dose savings integrated over time. That is, there is nearly complete protection when the plume is first infiltrating the house, going down to zero at the end of the first hour. Thus, the dose savings integrated over the first hour is 50 per-cent. The actual dose reduction in the second hour is 0. The overall dose savings of 25 per-cent fcr the two hour period is reached by adding 50 percent dose reduction (first hour) plus 0 percent dose reduction (second hour) and dividing by two hours. The actual dose reduc- ,
tion in the third hour is 0. The overall dose savings of 17 percent is reached by adding 50 j percent dose reduction (first hour) plus 0 per- j eent dose reduction (second hour) plus 0 per- l cent dose reduction (third hour) and dividing by three hours, and so forth. The failure of Inter-venors' witness, Mr. Minor, to understand this {
very basic concept, raises serious questions re- J garding his qualification to testify as an expert on the issues raised by Contention EX 36.)
l 464 Refuted by record; out See Response to I.F. 463 (Interveners' misun-of context; relltigation derstand the distinction between overall dose of planning issue savings (dose savings integrated over time) and actual dose reduction in any given hour.) See Phase I Contention EP 14; Long Island Lighting )
Company (Shoreham Nuclear Power Station, )
Unit 1), LBP-82-115,16 NRC 1923 (1982) (In j addition, Interveners' suggestion that the I LILCO computer calculations are improper l 4
j
l
-110-
"intervenor ~ o Proposed . .]
Findinr LILCO Response Explanation
! 3 !
l 1 I'
because they assumed there is no dose reduc- 1 tion benefit from sheltering af ter the first j hour challenges the HP-85 computer model j and, as such, is an improper attempt to i relitigate a planning issue. The HP-85 model was the subject of Phase I Contention EP 14 in
, the onsite emergency planning proceeding, which was dismissed when Interveners were found to be in def ault of a board order. See Appendix B to September 7,1982 Supplemental Prehearing Conference Order (Phase I - Emer- .
gency Planning) (Admitted Phase I Conten-l tions); Long Island Lighting Company -
(Shoreham Nuclear Power Station, Unit 1),
LBP-82-115,16 NRC 1923 (1982). N.F. 253; Tr.
2491-92 (Watts)(Interveners' suggestion that LERO improperly failed to consider the impact '
of sheltering on whole body dose or ground dose is out of context and inconsistent with the record. The Radiation Health Coordinator.
testified that although whole body dose rates were calculated, the child thyroid dose, not the whole body dose, was the critical dose pathway for consideration in the decisionmaking pro- .'
cess.) I.F. 463 (Interveners have acknowledged that "[t]he parties agreed that given the Ex-ercise scenario, the child thyroid inhalation -
i dose was the appropriate dose pathway for considering PARS".) N.F. 255-56; Tr. 2487-88, 2491-92, 2507, 2512, 2519, 2521-22, 2554
. (Watts)(Interveners' statement that "Mr. Watts l acknowledged that whatever whole body dose j or ground dose would have been received . . .
would have been reduced if people had shel- i tered"is out of context. Mr. Watts explained that the child thyroid dose was the critical dose pathway in the decisionmaking process and that af ter one hour of plume exposure sheltering provide essentially no protection I from thyroid dose.)
465 Relitigation of planning N.F. 258; s_ee, e_.g., Attachment 1, page 8 to issue; beyond regulatory LILCO's Motion for Summary Disposition on requirements Contentions 16.E, J, K, L, and M (Public Infor-r mation Brochure), dated April 27,1984. (Inter-venors' suggestion that LERO acted improperly
,- by not recommending such actions as holding l damp clothes over one's mouth and nose im-properly raises a planning issue. The Plan does
-111-l
'Intervenor Proposed Finding LILCO Response Explanation I
l not provide that such action be recommended in an EBS message. Such information is pro-vided in LILCO's Pubile Information Brochure.)
See I.F. 452 (Interveners' suggestion that LERO acted improperly because "the RHC never made any PARS concerning any area outside the 10-mile EPZ . . . even though by 1:00 the plume was already beyond the EPZ border"is beyond the scope of the contention. By Inter-L venors' own admission, Contention EX 36 chal-l lenges LERO's failure to perform calculations or dose projections to determine whether evacuation remained the appropriate recom-mendation for people in zones A-M, Q and R from noon to 3:48. Moreover, Interveners' pro-posed finding is without foundation. Interve-nors have not provided any evidence suggesting that any protective actions were warranted for areas outside the 10-mile EPZ.)
466 Out of context LILCO Test. Cont. EX 36, ff. Tr. 2364, at 8-12 l
(Interveners mischaracterize LILCO's testimo-ny by suggesting that the only reason LERO did not consider changing the evacuation recom-mendation to a shelter recommendation was because individuals who had not lef t their homes by 2:00 or 3:00 p.m. had already been immersed in the plume for at least en hour and sheltering therefore would not have been an appropriate PAR. This was only one of several reasons given for LERO's belief that evacua-tion remained the appropriate protective ac-tion recommendation.) See Minor (Test. Cont. ,
EX 36), ff. Tr. 2612, at 5 (Interveners also '
claim that LILCO's position regarding shel-tering is " based upon assumptions which are without foundation; specifically that sheltering
-would not have begun until three hours af ter the major release of radiation began, at a time when the entire downwind area had been immersed in the plume for at least an hour . . .." In fact, it was Interveners them- ;
selves who suggested in Contention EX 36 that "it may have been more appropriate, and re-
' sulted in more dose savings, for individuals who had not yet lef t their homes by, for example, 2:00 or 3:00, to remain sheltered in their homes . . .." LILCO was merely responding to 4 Interveners' contention.) I
-112- .
Intervenor Proposed Finding LILCO Response Explanation 467 Unjustified inference; See L.F. 294,296; N.F. 252,254-55 (Interveners not supported by cita- suggest that since LERO never performed a tion calculation comparing shelter and evacuation doses for persons beginning to shelter or evac-uate at 2:40 p.m., LILCO never considered whether shelter do.se would have been higher than evacuation dose at that time. The fact that a calculation was not performed does not by itself warrant the conclusion that LERO never considered wnether the shelter dose would have been greater than the evacuation dose. Indeed, the Radiation Health Coordi-nator testified that he did not need to perform a calculation to see the obvious fact that evac-uation remained the appropriate protective ac-tion recommendation. The release rate reached at 12:11 p.m. was more than six times higher than the release rate assumed in formu-lating the initial decision to evacuate and sub-sequent release rates were only slightly lower.)
PID at 771; OPIP 3.6.1 (Interveners' suggestion that LERO was not able to evaluate the appro-priateness of various protective actions with-out assuming ventilation controlis inconsistent with the LILCO Plan and improperly raises a l planning issue. Under the Plan, evacuation doses are calculated using the unsheltered dose rates because people are assumed to be outside either loading or sitting in their car. The Plan does not provide for assuming evacuation with ventilation control.) See Response to I.F.
462-64 (The statement that "Mr. Watts ac- ,
knowledged that if ventilation control had been advised or implemented prior to the ar-rival of the plume, people in their homes as of 2:60 would have received a lesser thyroid dose and a lesser whole body ground dose, than if they had been in their homes without ventila-tion control, outside, or in their cars at-tempting to evacuate" misrepresents the testi-mony of Mr. Watts. First, there is no compari-son of house and automobile doses on the pages I cited by Interveners. Second, the proposed )
finding again reflects Interveners' misunder-standing of the distinction between overall dose savings and actual dose reduction at any given time.) Tr. 2601 (Watts) (The statement j that "Mr. Watts acknowledged that at 2:40, the J whole body dose rate of a person in one of the
)
i j
-113-
- Intervenor Proposed Finding LILCO Response Explanation L
downwind zones would have been less if that i
person were in a house than if that person were in a car"is not supported by the citation.
Mr. Watts testified only that the whole body .
dose rate "may" have been less for a person in a house.) See I.F. 463; s_ee also Tr. 2599 (Watts)
(To the extent that Interveners are suggesting that LERO failed to adequately assess pro-tective action recommendations as evidenced by the fact that the whole body dose may have been less for persons in houses they are making an unjustified inference. Interveners them-selves have acknowledged that "[t]he parties agreed that given the Exercise scenario, the child thyroid inhalation dose was the appropri-ate dose pathway for considering PARS.")
l 470 Out of context; un- Tr. 7060-61 (Baldwin), 7967-68 (Keller),
! justified inference; re- 7960-65 (Baldwin, Keller, Kowieski), 7968-69 futed by record (Kowieski); SC EX Exh.102 (Interveners'sug-gestion that certain comments made by FEMA evaluator Paul Giardina on his critique form should have been included in the FEMA Report is inappropriate for several reasons. First, at least two of the statements were stricken from the critique form by Mr. Giardina.- Second, de-cisions about which of Mr. Giardina's com-ments should be included in the FEMA Report were made following a deliberative process involving Mr. Giardina, team leaders, and other FEMA personnel. As a result of the delibera-tive process,it was determined that Mr.
Giardina's comments regarding consideration of evacuation time estimates were inappropri-ate in that he was attempting to evaluate something that was being evaluated by FEMA at "a higher level than what Mr. Giardina spe-cifically saw in the accident assessment or dose assessment room." Interveners essentially are asking that this Board intrude on the delib-erative process involved in preparing the FEMA Report and to override decisions reached during that process. It is not appro-priate for this Board to do so in this proceed- j ing.) Tr. 2694 (Kessler) (The suggestion that !
LERO did not consider the impact of traffic considerations on protective actions is refuted ]
by the record. The Director of Local Response j testified that information regarding traffic
-114-Intervenor Proposed Finding LILCO Response Explanation conditions was regularly provided at staff meetings and that he considered the road con-ditions when making decisions.) Tr. 2579, 2594 (Watts, Weismantle) (Once LERO personnel at the EOC learned of the traffic impediment,'
the Director of Local Response, the Manager of Local Response and the Radiation Health Coordinator discussed the impact of the im-pediments on protective action recommenda-tions. It was LERO's judgment that the evacu- ,
ation recommendation should not be modified ' j given plant conditions and the limited nature j of the impediments.) .
j i
470,n.308 Refuted by record, out See Response to I.F. 470 (The decision not to ,
of context; unjustified include certain of Mr. Giardina's comments in I inference the FEMA Report was made after Mr.
Giardina, team leaders, and other FEMA per-sonnel deliberated and determined that the comments were inappropriate because he was attempting to evaluate something that was being evaluated by FEMA at a higher levelin LERO. It is not the purpose of this proceeding to revisit the deliberative process of the FEMA Report.)
471 Refuted by record See Response to I.F. 456, 460; L.F. 291-94 (In-tervenors' proposed findings that the continu-ing evacuation recommendation was made "without any calculation or other confirma-tion, using updated information as the 'acci-dent' progressed,"is refuted by the record.)
473 Out of context; refuted See Response to I.F. 456, 460; L.F. 291-94 (The by record statement that "LERO personnel never ana-lyzed the alternatives to make an informed de-termination"is out of context and refuted by the record.)
\
VII. Contentions EX 22.A; 49: Monitoring at Nassau Coliseum l
473,p.309 Not supported by cita- L.F. 304, n. 43; N.F. 390 (Harris and Mayer tion; unjustified infer- have no experience in radiological emergency i ence drills or exercises, and no knowledge of other radiological emergency plans); Tr. 3012-14 (Harris, Mayer)(Harris stated that he has re-f viewed "some of the basic principles" of l
-115-Intervenor Proposed Finding LILCO Response Explanation radiological monitoring and decontamination.
Mayer stated that he is only " familiar with some of the articles that have appeared in the general medical literature on radiation." Nei-ther Harris nor Mayer considers himself an ex-pert in radiological monitoring, radiological decontamination, or radiological medicine.)
474 No citation; refuted by L.F. 302-03; FEMA EX Exh. 5 at 21-22 (The record; relitigation of current unavailability of the Nassau Coliseum planning issues does not affect the evaluation of the Exercise results. The designation of specific reception center f acilities is a planning issue, not an Ex-ercise issue.)
476 Unjustified inference LILCO Test. Cont. EX 22.A and 49, ff. Tr.
2690, at 4; FEMA EX Exh. 5 at 22 (Changes in the Plan necessitated by the unavailability of Nassau Coliseum are planning issues and the subject of litigation on remand before the OL-3 i Board.)
477 Unjustified inference; See L.F. 302-03; N.F. 393; FEMA EX Exh. 5 at refuted by record 22 (Implication that a change in reception cen-ter f acilities could change the Exercise results is refuted by FEMA's testimony.)
478 Unjustified inference; Tr. 2739 (Weismantle) (There is no basis for the outside the scope of the inference that evacuees would not choose the contentions same route out of the EPZ.) Tr. 2738-39 (Weismantle), 7713-14 (Keller) (Evacuation time estimates represent an estimate of the time needed to evacuate.a particular zone to the border of the 10 mile EPZ and are not in any way dependent upon where a reception ,
center is located outside the 10 mile EPZ: thus, !
evacuation time estimates would remain appli- j cable and appropriate given different recep- !
, tion center destinations.) 1 478,n.312 Unjustified inference; See Response to I.F. 478.
l outside the scope of the !
contentions 479 Refuted by record LILCO Test. Cont. EX 22. A and 49, ff. Tr.
2690, at 4 (The Nassau Coliseum is not a cen- )
tral or essential piece of the LILCO Plan.)
L.F. 302-04; FEMA EX Exh. 5 at 21 (The results of the Exercise are not dependent upon the L_ -
116-Intervenor Proposed Finding LILCO Response Explanation availability of a particular reception center fa-cility.)
480 Unjustified inference; OPIP 3.9.2, 4.2.3; LILCO Test. EX 22.A and 49, refuted by record ff. 2690, at 6; Harris and Mayer, ff. Tr. 2992, at 43-44; Tr. 2703-14,2725-29 (Weismantle)
(The procedures for registration, monitoring, and decontamination of individuals and vehi-cles are clearly presented, and nowhere are they described as " complex" or " detailed".) !
LILCO Test. EX 22.A and 49, ff. 2690, at 6-8 (The procedures in the Plan, as exercised, were not based on an assumption that Nassau Colise- ;
um would be the Reception Center; Revision 6 of the Plan provided for a central" reception center" to which evacuees would be directed.)
481 Refuted by record See Response to I.F. 474, 477; FEMA EX Exh. 5 at 23; LILCO Test. Cont. EX 22.A and 49, ff.
Tr. 2630, at 7"8; Tr. 2?46-48 (Robinson) (FEM A and LILCO witnesses agreed that the Exercise demonstrated LERO's organizational abilities to meet the objective of responding correctly in an emergency.)
l- 482 Out of context; refuted Tr. 7703-09 (Keller)(Portion of FIELD Objec-l by record; not supported tive 17 concerning ability to mobilize staff and by citation; outside the portion of FIELD Objective 21 concerning scope of the conten- monitoring and decontamination of evacuees tions and vehicles do not relate to a particular f acil- i ity.) Tr. 7719-20 (Keller)(Mr. Keller testified !
that evaluating the adequacy of monitoring l procedures at proposed replacement Reception Centers would require "see[ing] those set up as they would be"- he did not say another ex-ercise was necessary.) Tr. 2756-57 (Frye) (The '
l number of evacuees to be handled at a particu-lar reception center f acility is a planning issue which is the subject of litigation before the !
Licensing Board in the OL-3 proceeding.) l 403 Not supported by cita- Tr. 2755 (Robinson)(Ms. Robinson d.d not testi-tion; out of context; fy as to whether functions and activities l outside the scope of the relating to FEMA's evaluation of FIELD objec- !
contentions ti/e 21 would or would not remain the same "regardless" of the reception center being uti-lized), 2756-58 (Robinson) ("LERO demon- 1 strated the organizational ability . . . to pro- l vide people and personnel and equipment to .
l l
l
-117-1 Intervenor i Proposed Findinst LILCO Response Explanation perform those functions for 32,000 people in any adequate facility." The number of evacuees which a particular facility can handle is a planning issue which is the subject of liti-gation before the Licensing Board in the OL-3 proceeding.)
484 Refuted by record L.F. 302-03 (LILCO in its brief addressed testi-mony by LILCO, FEMA, and Intervenor wit-nesses and concluded that the Exerciso demon-stration, and FEMA's evaluation of it, were not :
dependent upon the use of Nassau Coliseum to serve as the Reception Center.) LILCO Test.
Cont. EX 22.A and 49, if. Tr. 2690, at 7-8 ,
(LILCO witnesses concluded that the Exercise demonstrated LERO's organizational ability to use facilities and people to respond to an ,
emergency and did not depend on use of a par-ticular reception center); OPIP 3.9.2, 4.2.3 (monitoring and decontamination activities, or-ganizational structure, and communications between response facilities as described in OPIP's 3.9.2. and 4.2.3 are not based on having the Nassau Coliseum as the Reception Center);
s_ee Response to I.F. 480-83.
485 Refuted by record; Response to I.F. 480-84; N.F. 393; Tr. 2758 i relitigation of planning (Robinson) (LILCO's demonstration of organiza- >
issues tional abilities to implement an emergency plan is not dependent upon a particular facili- ;
ty.) Tr. 7703-09 (Keller)(FEMA's conclusions )
on portions of FIELD Objectives 17 and 21 are )
not related to any particular reception center I facility.) FEMA EX Exh. 5 at 22 (The refer-enced RAC review is a plan review of Revs. 7 and 8 which relates exclusively to planning is-sues.) l
)
485,n.315 Relitigation of planning FEMA EX Exh. 5 at 22 (New circumstances l arising from current unavailability of Nassau issues Coliseum constitute a planning issue, not an Exercise issue.)
486 No citation; refuted by See L.F. 302-04; N.F. 393; FEMA EX Exh 5 at record 21-23; LILCO Test. Cont. EX 22.A and 49, ff.
Tr. 2690, at 4,7-8 (evacuation response capa-bilities demonstrated at the E :ercise are not dependent upon the availability of Nassau Coll-seum); FEMA EX Exh. 5 at 21; LILCO Test.
-118-l Intervenor-Proposed l,
Finding LILCO Response Explanation i
. Cont. EX 22.A and 49, ff. Tr. 2690, at 8 (with-drawal of Nassau Coliseum for planning pur- j poses does not affect the validity of FEMA's j conclusions); se_e N.F. 392; FEMA EX Exh. 5 at 1
21 (an orderly evacuation does not depend upon l the specific location of the reception center.) t 486,n.316 Refuted by record L.F. 301-03; FEMA EX Exh. 5 at 21 (LILCO re-futes the testimony by Interveners' witnesses that the Exercise no longer provides a basis for the conclusion that "an orderly evacuation" would or could be implemented because Nassau Coliseum is unavailable to serve as the end point of that evacuation. FEMA agrees with LILCO and disagrees with the opinion of Inter-venors' witnesses by concluding that an orderly evacuation does not depend upon the specific location of the reception center. The Exercise demonstrated LERO's organizational ability to conduct emergency activities and provides a sufficient basis for a predictive finding that LILCO and LERO willlikely be able to conduct those activities again, regardless of whether or l not Nassau Coliseum is still designated as the Reception Center.)
l 487 Refuted by record See L.F. 302,304 (The Exercise demonstrated LILCO's organizational ability to respond in an emergency as required by the regulations and guidelines, and those results are not invalidated by the subsequent unavailability of the Nascau Coliseum.)
491 Refuted by record Tr. 7727-28 (Keller, Kowieski) (While two offi-cial FEMA evaluators observed LERO person-nel perform monitoring, Messrs. Bernacki, Slagle; additional FEMA personnel observed the ]
operation.)
492 Unjustified inference LILCO Test. Cont. EX 22.A and 19, ff. Tr.
2690, at Att. B, pp. 96-98; Tr. 2761-64 (Watts),
7983 (Keller)(The suggestion that only Mr.
Kowleski's testimony merits consideration is misleading. Mr. Watts' testimony is entitled to substantial weight since it is based in part on the personal observations of two of LILCO's observers at Nassau Coliseum. FEMA witness Keller's testimony also deserves weight since he spoke with FEMA evaluators Bernacki and
-119-Intervenor P1 W Findinst LILCO Response Explanation Slagte to discuss their personal observations of monitoring activities and their comments on evaluation forms.)
494 Refuted by record See Response to I.F. 492 and 494, n. 318.
494 n.318' 0 Refuted by record; un- Tr. 2700 (Weismantle) (Mr. Weismantle had t ;tified inference personal conversations with LILCO observers and reviewed documentation concerning the Nassau Coliseum operation),2762-63 (Watts)
(Mr. Watts testified that he had personal con-versations with the two LILCO employed Exer-cise observers who were in "various locations during the day," and that they "were able to get a pretty good view of the spectrum of ac-tivities that were going on that day, including the personnel monitoring"), 2700 (Watts) (Mr.
Watts reviewed documents generated on the day of the Exercise that dealt with the op-eration at the Nassau Coliseum.)
495 Refuted by the record; Tr. 7983 (Kowieski) (the first draf t of the Re-
! unjustified inference port was circulated to all Exercise evaluation team leaders and RAC members for review and comment), 7730-31 (Baldwin) (the implication that none of the FEMA witnesses participated l in draf ting the portion of the Report concern-ing personnel monitoring is rebutted by Dr.
Baldwin, who testified that he reviewed the initial draf ting and that specifics relating to monitoring were added to the final Report.)
496 Unjustified inference; SC EX Exh. 43 (Mr. Bernacki's comments on refuted by record; out monitoring did not indicate a " likelihood" of of context backups, but rather stated that "[i]f there were a large number of evacuees this could have resulted in a significant backup" (empha-sis added). Mr. Slagle had commented that the time spent monitoring was longer than would be necessary to accommodate a very high in-flux of people); Tr. 7983 (Keller) (Mr. Keller testified that the conclusion that monitoring took over 90 seconds only with FEMA evalua-tors was based on his " personal contact" with Messrs. Bernacki and Slagle when they were
" asked specifically" about the monitorings that took over 90 seconds.)
-120-
.Intervenor Proposed Finding LILCO Response Explanation 496,n.319 Unjustified inference See Response to I.F. 497.
497- Unjustified inference; Tr. 7729, 7982-83 (Keller) (FEMA testimony re-refuted by record; not futes the suggestion that delays in monitoring supported by citation occured any more than three times.) N.F. 396, 397 (The evidence offered by FEMA and LILCO established that monitorings of over 90 seconds. l
" occurred only as to three persons, all Federal ,
evaluators.")
498 Unjustified inference; See Response to I.F. 497; LILCO Test. Cont. Ex refuted by record; no 22.A and 49, If. Tr. 2690, at 8-9; Tr. 2763 citation (Watts)(All offered evidence states that delays in . monitoring occurred only three times.)
499,n.320 Unjustified inference; Tr. 2761-64 (Watts) (Mr. Watts testified that he refuted by record knew of actual events surrounding the person-nel monitoring through conversations with two of LILCO's observers who were at the Nassau Coliseum); _see Response to I.F. 499, n. 321.
499,n.321 Unjustified inference; Tr. 2717-18 (Robinson, Weismantle) (Ms. Rob-refuted by record; out inson's and Mr. Weismantle's opinions on the of context speed of LERO monitoring in the emergency situation are based on extensive experience in observing the performance of radiological monitoring during emergency drills), 2781-87 (Watts) (Mr. Watts mentioned several "specif- j ics" about his past observations of personnel )'
monitoring, including the number of minutes taken for monitoring and the number of people requiring monitoring. Mr. Watts' opinion that slower monitoring can take place in nonemer-gency situations was based on his observations of accidents, emergencies, nonemergencies, and monitorings of large numbers of people.
His experience includes observing monitoring efforts in nonemergency situations involving
" hundreds of people working in the plant" to be monitored with " dozens of people queueing up to leave a single controlled access area" -
much larger numbers than implied.)
i 501 Unjustified inference; L.F. 308: Tr. 2777-79 (Watts) (Since LERO refuted by record monitors knew that they were being observed and evaluated in a nonemergency situation, they proceeded more slowly and carefully out of a concern of receiving criticism, and to
} demonstrate the technique. Mr. Watts l
i _ _ _ - _ - _ - - _ _ _ _ - -_-_n
-121-Intervenor Proposed Finding LILCO Response Explanation indicated that this behavior has been seen be-fore at other evaluated drills and exercises.)
502 Unjustified inference; See L.F. 308-09; LILCO Test. Cont. EX 22.A -
relitigation of planning and 49, ff. Tr. 2690, at 10: Tr. 2778, 2781 issues (Watts), 3047 (Mayer) (LILCO witness with ex-perience observing monitoring in both non-accident and accident situations, involving large and small numbers of people, has ob-served that, under the pressure of many people waiting, monitors perform faster. Mayer's opinion that such pressures would lead to slower monitoring is without basis - Mayer has no experience with radiological monitoring, and his opinion contradicts his own statement that he becomes more efficient when working under the pressure of a long line of people waiting for his services.)
502,n.322 Unjustified inference See L.F. 308, n. 46; Tr. 3044-47 (Harris, Mayer)
(Mayer's comment was addressing the effect of the pressure of many people awaiting services on the efficiency of the server, and thus is rel-evant to the Exercise situation.)
503 Refuted by record; un- N.F. 396, 397; LILCO Test. Cont. EX 22.A. and justified inference 49, ff. Tr. 2690, at 8-9; FEMA EX Exh. 5 at 29; Tr. 2763 (Watts), 7729, 7982-83 (Keller) (moni-
,toring took more than 90 seconds in only three instances); NUREG-0654 S II.J.12; Tr. 7984 (Keller); FEMA EX Exh.1 at 80 (the low num-ber of instances of untimely monitoring dem-onstrated the capability to meet the required monitoring rate under the LILCO procedures and NUREG-0654.) Tr. 7984 (Keller)(The f a-cilities as demonstrated during the Exercise were capable of handling 32,000 evacuees within the required 12-hour time period.)
503,n.323 Unjustified inference; See Response to I.F. 473, n. 309 (Neither Harris outside the scope of the nor Mayer is an expert.) Tr. 3035 (Mayer) contentions (Mayer admitted he was not an expert in crowd psychology and that his knowledge in this area was based on observed crowds at rock concerts and beaches; his opinion of crowd behavior is entitled to no weight.)
E-_-._____ _ _ _ _ _ _ _ _ _ _ - _ _
-122-Intervenor Proposed Finding LILCO Response Explanation 503,n.324 Refuted by record Tr. 2730 (Watts)(Mr. Watts testified that on the day of the Exercise there were 42 addition-al monitoring personnel available, and some were held in reserve to relieve monitoring per-sonnelin assigned positions.)
504 Unjustified inference; See L.F. 316 (Simply because FEMA did not refuted by record formally evaluate LILCO's ability to implement alternate monitoring methods d6es not provide a basis for concluding that the Exercise failed to demonstrate that ability); FEMA EX Exh. 5 at 30 (FEMA testified that the alternate meth-od was not an Exercise objective.)
505 Unjustified inference; OPIP 4.2.3 S 5.11; L.F. 312; LILCO Test. Cont.
refuted by record EX 22.A and 49, ff. Tr. 2690, at 11; Tr. 2795, 2798-99 (Watts)(Under LILCO's Plan, the back-up monitoring method consists not only of LERO personnel monitoring the hands and thy-roid of the driver of each car and taking a swipe sample of the carhood and wheelwell, but also, if contamination is indicated, sending the passengers inside the reception center for the full, detailed monitoring ordinarily provid-ed under LILCO's operating procedures. If more than 32,000 evacuees are expected for monitoring, LILCO also has the option of call-ing additional monitoring personnel from other utilities through INPO, DOE, and other entities.) LILCO Test. Cont. EX 22.A and 49, ff. Tr. 2690, at 10 (Discussion of alternate monitoring methods is relevant because they were in f act implemented during the Exercise.)
LILCO Test. Cont. EX 22.A and 49, ff. Tr.
2690, at 10; FEM A EX Exh. 5 at 30-31 (LILCO and FEMA testimony that LERO personnel rec-ognized the need to use the backup monitoring method and implemented that method during the Exercise provides evidence that LILCO ad-equately demonstrated the ability to imple-ment its alternate monitoring procedures);
FEMA EX Exh. 5 at 30 (FEMA testified that the alternate monitoring method was not an Exercise objective but was in f act imple-mented (simulated).)
505,n.325 Not supported by cita- L.F. 316; se_e N.F. 403 (lack of evaluation by tion; unjustified infer- FEMA of backup monitoring procedures ence unrelated to demonstration by LILCO and
-123-Intervenor Proposed Finding LILCO Response Explanation LERO during Exercise of the ability to imple-ment its alternate monitoring procedures.)
LILCO Test. Cont. EX 22.A and 49, ff. Tr.
2690, at 10; Tr. 2790 (Watts) (The testimony did not note the number of vehicles or individuals on which the alternate monitoring method was demonstrated; however, it does not suggest that these numbers could not be derived.)
FEMA EX Exh. 5 at 30 (FEMA testified that the alternate monitoring method was in f act ;
implemented (simulated), establishing that FEMA was not only aware of but observed the demonstration of the alternate procedure.)
506 Out of context; Tr. 2792 (Watts); FEMA EX Exh. 3 at Att.1, l relitigation of planning p.11-12 (FEM A found the alternate monitoring l issues method inadequate only in the context of its l proposed use as a primary method with three reception centers. Changes to planning basis with respect to reception centers is the sub-ject of litigation before the Licensing Board in the OL-03 proceeding.)
507 Unjustified inference; L.F. 313; LILCO Test. Cont. EX 22.A and 49, refuted by record ff. Tr. 2690, at 11-12; Tr. 2800-08 (Watts, Weismantle)(During the Exercise, LERO did not merely exchange information about the
{ possibility of obtaining additional monitoring I personnel, but made numerous calls to INPO and DOE and obtained commitments for more than 200 additional monitoring personnel to augment the LERO monitoring contingent.)
See N.F. 401; LILCO Test. Cont. EX 22.A and 49, ff. Tr. 2690, at 11-12 (Ability to obtain pledges for 288 additional monitoring personnel within six to twelve hours during Exercise pro-vides substantial basis for determining that re-sources are available to augment the LERO monitoring team in a timely manner.) L.F. 316 (lack of evaluation by FEMA of backup moni-toring procedures unrelated to demonstration !
by LILCO and LERO during Exercise of the ability to implement its alternate monitoring procedures.)
508 Refuted by record; un- NUREG-0654 S II.J.12; L.F. 312, 313. 316 justified inference (LILCO demonstrated during Exercise, in ac-cordance with OPIP 3.9.255.11, the ability to implement alternate monitoring procedures
L
-124-f q
Intervenor j Proposed l Finding LILCO Response Explanation I
including registration and decontamination, for 100,000 individuals to meet the requirements of NUREG-0654 S II.J.12.)
VIII, Contention EX 47: Registering. Monitoring, and Decontaminating Evacuees from Special Fmilities 509. Not supported by cita- LILCO Test. Cont. EX 47, ff. Tr. 2879, at 2-3, tion; refuted by record 5-6 (The same LERO workers who would regis-ter, monitor, and decontaminate actual special facility evacuees demonstrated the ability to perform these functions on the day of the Ex-ercise by registering, monitoring and decon-taminating several hundred individuals at the EWDF and Nassau Coliseum.) OPIP 3.9.2 SS 3.2, 5.1.5, 5.4, 5.5; LILCO Test. Cont. EX 47, ff. Tr. 2879, at 4-5 (Revision 6 of the LILCO Plan provided procedures covering the registration, monitoring and decontamination of evacuees from special facilities in compli-ance with regulatory requirements. By imple-menting several aspects of these procedures, LILCO demonstrated its ability to protect the special facility population in the event of a Shoreham emergency.)
510 Relitigation of planning FEMA EX Exh. 5 at 28 (Subparts A-E of Con-issues; unjustified infer- tention EX 47 raise planning issues unrelated ence to the Exercise.) PID at 840; N.F. 379,385; L.F. 322-26; LILCO Test. Cont. EX 47, ff. Tr. j 2879, at 11 (LILCO draf t proposal for moni- j toring special f acility evacuees is unrelated to ;
Exercise events, and thus, is beyond this Li- l censing Board's mandate. Issues surrounding planning for special f acility evacuees, in par-ticular, the lack of identified special f acilities Reception Centers, lack of agreements be-tween Reception Centers and special f acilities, and identification of Reception Centers for school children, were extensively litigated in the planning phase of this proceeding. These {
issues must be resolved before full power op-eration, but were not raised by Exercise events.) FEMA EX Exh. I at 67-68 (No Defi-ciency was identified in the area of special fa- l cilities in the Exercise.) i l
i i
l l
-125-Intervenor Proposed Finding LILCO Response Explanation 510,n.327 Relitigation of planning See Response to I.F. 510.
Issues; unjustified infer-ence 511 Unjustified inference; L.F. 318-19; LILCO Test. Cont. EX 47, ff. Tr.
relltigation of planning 2879, at 2-3,5-6 (LILCO demonstrated during issues; outside tile scope the Exercise an ability to register, monitor, of the contentions and decontaminate special f acility evacuees in satisfaction of or beyond requirements of FEMA Exercise objectives.) PID at 840; s_ee e Response to I.F. 510; L.F. 322-26; (Post-Exercise changes in LILCO Plan regarding the treatment of special populations are beyond the scope of the Exercise proceeding. Plan-ning for special f acility evacuees was litigated in the planning phase of this proceeding.)
512 Unjustified inference; LILCO Test. Cont. EX 47, ff. Tr. 2879, at 3 not supported by cita- (The same LERO workers who would have reg-tion istered, monitored and decontaminated special f acility evacuees actually performed these functions on several hundred individuals.)
513 Relitigation of planning PID at 840,860; s_ee e Response to I.F. 510; N.F.
issues 381; L.F. 326; Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1),
LBP-85-31, 22 NRC 410, 429-30 (1985.)
513,n.330 Out of context; un- Tr. 2913 (Daverio)(Mr. Daverio testified that justified inference; out- the administrator of Oak Hollow Nursing and side the scope of the Crest Hall facilities would likely re-enter into contentions an agreement with LaSalle Military Academy as a reception center once Shoreham was op-erating. The status of such agreements is a planning issue.)
514 Unjustified inference; S_ee e Response to I.F. 510 (Planning for special refuted by record; f acility evacuees was litigated in the planning relitigation of planning phase of this proceeding); OPIP 3.9.2 SS 3.2 issues and 5.15; OPIP 3.6.5, Att. 5; Harris and Mayer, ff. Tr. 2992, at 12 (Revision 6 of LILCO Plan provides for separate f acilities for monitoring special f acility residents.) Tr. 2923-24 (Daverio)(LILCO Plan provides for registra-f tion, monitoring, and decontamination of l school children together with their parents.) ,
I
-126 -
Intervenor Proposed Finding LILCO Response Explanation 514' 6 n. 331 Unjustified inference, LILCO Test. Cont. EX 47, ff. Tr. 2879, at 4-5 refuted by record (Many monitoring procedures for the general population contained in OPIP 3.9.2 apply to monitoring special facility populations.)
-515 Relitigation of planning See Response to I.F. 510; N.F. 380; Tr. 8532 issues (Keller)(FEMA witness testified that regis-tering, monitoring, and decontamination of special facility evacuees was not an Exercise objective.)
516 Relitigation of planning See Response to I.F.s 510,515; Tr. 7741 issues; unjustified infer- (Keller)(Mr. Keller testified that a plan review ence; not supported by rating could be changed without an exercise.)
citation 517 Refuted by record L.F. 317-28 (LILCO's arguments, based pri-marily on the record, assert that no fundamen-tal flaw is shown by the issues raised in Con-tention EX 47.)
518 Unjustified inference; See Response to I.F. 515; L.F. 318; LILCO Test.
out of context Cont. EX 47, ff. Tr. 2879, at 2-3,5-8 (LILCO demonstrated in the Exercise its organizational ability to evacuate, register, monitor, and decontaminate special f acility evacuees by gathering and disseminating information about evacuating the special f acility population, dis-patching over 60 emergency vehicles to simu-late evacuation of special f acilities, and moni-toring hundreds of workers at the Emergency Worker Decontamination Facility (EWDF). Al-though LILCO did not simulate or actually per-form the registration, monitoring, and decon-tamination of any special facility residents, f the f act that the process of registering, moni-toring and decontaminating is similar for all populations makes the accurate and efficient .!
performance of monitoring several hundred in-dividuals at EWDF a sufficient demonstration i of an organizational capability and technical competence to protect special f acility popula-tions during an emergency.)
519 Unjustified inference; See Response to I.F. 510; s_ee e N.F. 380; FEMA refuted by record EX Exh. 5 at 26; Tr. 8532 (Keller) (In addition to testifying that monitoring at special f acility i reception centers is not encompassed by FIELD Objective 21, FEMA witnesses also testified
-127-l
. Intervenor-Proposed Finding LILCO Response Explanation that monitoring at special facility reception centers was not an Exercise objet tive.) L.F.
320; LILCO Test. Cont. EX 47, ff. Tr. 2879, at 7; FEMA EX Exh. 5 at 151 (LILCO and FEMA witnesses agreed that dispatch of an ambu-lance and ambulette satisfied FIELD objective 13.) LILCO Test. Cont. EX 47, ff. Tr. 2879, at 3-5; Tr. 2923-24 (Daverio) (LILCO Plan, as ex-ercised, includes procedures covering the reg-istration, monitoring, and decontamination of special facility populations and contemplate, the performance of those functions for school children at general population reception cen-ters af ter being picked up by their parents.)
519,n.332 Refuted by record,, L.F. 319; N.F. 380 (Registering, monitoring, re11tigation of planning and decontaminating special f acility evacuees issues; not supported by was not an Exercise objective.) FEMA EX Exh.
citation 5 at 151 (LILCO's dispatch of an ambulance and an ambulette satisfied FIELD Objective 13); Tr.
2905-07 (Daverio) (Ambulance and ambulette operations not inconsistent with the LILCO Plan.)
520 Relitigation of planning See Response to I.F. 510.
Issues; outside the scope of the contentions j 520,n.334 Unjustified inference; L.F. 324; se_e N.F. 379 (The charge of the Li-no citation censing Board in these hearings is to determine whether a fundamental flaw exists in the LILCO Plan as exercised - it is not to address whether alleged areas of deficiency in the Plan exist with regard to events outside the scope of the Exercise.)
520,n.335 Relitigation of planning See Response to I.F. 510.
issues 521 Relitigation of planning See Response to I.F. 510.
issues ,
i 522 Relitigation of planning L.F. 328 (LILCO's planning for evacuation of issues hospitals was approved by the Licensing Board I
as a planning basis during the Plan litigation and was not implicated by Exercise events, thus, this issue is outside the scope of this pro-ceeding.)
_ _ _ _ _ _ - - - _ _ _----. .-. __ -}
.-128-Intervenor
-Proposed Findine LILCO Response Explanation .
522,n.336 Relitigation of planning L.F. 328, n. 53 (Whether LILCO is required to .
' issues undertake additional planning for evacuation of
- hospital patients is a planning issue presently being reviewed by the Commission; it is not be-fore this Board for review.)
523 Refuted by record; . See Response to I.F. 510; LILCO Test. Cont.
relitigation of planning EX 47, ff. Tr. 2879, at 3-5; Tr. 2923-24 issues ' (Daverio)(LILCO Plan includes provisions for registration, monitoring,~ and decontamination of special f acility evacuees.)
-524 Refuted by record; un- LILCO Test. Cont. EX 47, ff. Tr. 2879, at 2-3, justified inference 5-6 (LILCO demonstrated during the Exercise the ability to register, monitor and decon-taminate evacuees from special facilities)
Harris et al. (Test. Cont..EX 47), ff. Tr. 2992, at 21 (Testimony on the likelihood of officials of special facilities permitting the evacuation of their patients is the unsupported opinion of Interveners' witnesses.)
524,n.337 Unjustified inference See Response to I.F. 473,503,n.123.
525 Unjustified inference; LILCO Test. Cont. EX 47, ff. Tr. 2879, at 3 beyond regulatory re- (LILCO demonstrated during the Exercise the quirements organizational capability and resources, and the technical competence, to protect special f acility populations during an emergency the regulations do not require more.)
526 Out of context; un- LILCO Test. Cont. EX 47, ff. Tr. 2879 at 4-5, 8 justified inference (LILCO witnesses testified specifically on the monitoring of evacuees from special facilities, l noting that (1) many of the monitoring proce- 1 dures in the LILCO Plan can be applied to the - 1 special facility population, (2) the basic direc-tions for using the monitoring instruments are the same regardless of the population being monitored, (3) variation in use of the moni- '
toring instrument due to an individual's special condition is unlikely to impair the ability to as-sess contamination since areas of the body that cannot be reached by monitoring are highly un-l likely to be contaminated and the monitoring instrument is capable of detecting even slight traces of contamination, and (4) LERO is com-posed of competent people who are capable of transferring their monitoring skills from one
~ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
-129-Intervenor Proposed Finding LILCO Response Explanation population to another and are considerate of the impaired mobility of special facility resi-dents.) -
526,n.338 Out of context Tr. 2915-20 (Watts) (Mr. Watts described how LERO monitors were trained to meet provi-sions of OPIP 3.9.2 specific to dispatch and -
monitoring or special f acility evacuees.
Training discussions occurred prior to the Ex-ercise and continue to address considerations for handling handicapped people during moni-toring.)
527 Refuted by record L.F. 318-28 (LILCO addressed the."significant matters" raised by the Interveners' witnesses -
relating to registering, monitoring and decontaminating special facility evacuees concluding, inter alia, that (1) LILCO demon-strated an ability to evacuate, register and monitor such evacuees, (2) LILCO met FIELD objective 13, (3) matters raised by subparts A-E of Contention EX 47 are outside the scope of the Exercise, and (4) planning for such evacuees and school children has been previ-ously litigated in the planning phase of this proceeding.) I.F. 509, n. 326; LILCO Test.
Cont. EX 47, ff. Tr. 2879, at 1-2 (Interveners conceded that Daverio and Watts were quali-fled to provide testimony on Cont.'EX 47.)
LILCO Test. Cont. EX 47, ff. Tr. 2879, at 2-3 (LILCO demonstrated the organizational cabability and technical competence to protect special f acility evacuees in an emergency.)
528 Relitigation of planning See L.F. 324; N.F. 378 (The standard of review issues; unjustified infer- for this Board is whether Exercise events re-ence; refuted by record vealed a fundamental flaw in the LILCO Plan.
LILCO does not carry the burden of showing an ability to protect the special f acilities popula-tion.) PID at 840; L.F. 326 (Availability of spe-cial f acility reception centers is a planning issue which has been litigated in the planning phase of this proceeding); LILCO Test. Cont.
EX 47, ff. Tr. 2879, at 2-3 (LILCO demon-strated the organizational ability and resources to evacuate, register, and decontaminate spe-cial f acility evacuees in an emergency.) L.F.
321; Tr. 8932 (Keller)(FIELD objective 21 did not require registration, decontamination or
-130-Intervenor.
Proposed Finding LILCO Response Explanation monitoring of special facility evacuees, thus, demonstration of ability to perform these functions is inapposite on issue of satisfaction of this objective); L.F. 320; FEMA EX Exh. 5 at 151 (LILCO's demonstration during the Exer-cise met FIELD Objective 13 which provides:
' "Demonstrate a sample of the resources neces-sary to effect an orderly evacuation of the in-stitutionalized mobility-impaired individuals within the 10-mile EPZ.")
. IX. Contention EX 38; 39; 40.C; 22.F; 44; 49.C: Adequacy of Public Information 533 Refuted by record See L.F. 394; FEMA EX Exh.1 at 53; Tr. 7863, 7906-07 (Keller)(FEMA's Deficiency related to insufficient copying capabilities, not to ENC and Rumor Control" performance"; LILCO ad-dressed Interveners' evidence at length during this proceeding.)'
534 Unjustified inference See CLI-86-11,23 NRC 577,578 (1986)(Inter-venors' burden in this proceeding is to establish a fundamental flaw in the LILCO Plan as dem-onstrated during the Exercise.)
l 535 Not supported by cita- Prehearing Conference Order, at 21, Oct. 3, tion; unjustified infer- 1986 (The Board did not suggest that "if any i ence one of [the public information] capabilities !
does not exist, the Plan is seriously flawed", J but that "the numerous bases asserted might 'f collectively reveal a fundamental flaw in the plan if proved".) Guard v. NRC,753 F.2d 1144, 1145 (Guard says nothing about fundamental flaws in emergency plans as revealed by an ex-ercise; Guard concerns 10 C.F.R. 5 50.47(b)
(12), iA, medical arrangements for contami-nated injured persons.) See Response to I.F.
l 533 (FEMA did not find a Deficiency with LILCO's Exercise " performance" at the ENC or l Rumor Control.) Tr. 7862-63 (Keller, Kowleski) l (FEMA witnesses testified that there was a De-ficiency with respect to LILCO's Rumor Con-trol operation, but did not agree that LILCO is incapable of dealing with rumors or responding to inquiries from the public during an emer-gency.)
L _ - _ __ _
l
-131-t Intervenor Proposed Finding LILCO Response Explanation 536,n.342 Refuted by record See FEMA EX Exh. 5 at 32-71 (FEMA testimo-ny was based on the FEMA Report, which is based on personal knowledge and evaluation of Exercise performance. Where FEMA witnesses did not have personal knowledge of Exercise events, e.g., concerning individual Rumor Con-trol responses, they gave their expert opinions based on facts alleged in the contentions.)
537 Not supported by cita- LILCO Test. Cont. EX 38 and 39, ff. Tr. 3207, tion; refuted by record at 4 (Mr. Patterson's qualifications and experi-ence included positions as Editor and Bureau Chief of the New York Daily News and as Press Secretary to New York Governor Hugh Carey.) ,
538 Not supported by cita- LILCO Test. Cont. EX 38 and 39, ff. Tr. 3207, tion; refuted by record at 3-4; Tr. 3288-90 (Mileti) (Dr. Mileti has ex-tensive knowledge about emergency warning systems and public behavior during emergen-cies, based on 15 years' worth of personal re-l search experience and review of theoretical and emphical research on public response to natural and radiological emergencies.) Evans et al. (Test. Cont. EX 38 and 39), ff. Tr. 3786, at' 6-8 (Drs. Cole and Saegert have no expertise regarding emergency response behavior; Dr.
Cole is essentially a pollster and Dr. Saegert an environmental psychologist.)
539 Unjustified inference See I.F. 537 (By same toten that LILCO wit-nesses could have lacked objectivity, Messrs.
Rowan and Evans, long employed in the media field, lack ob,tectivity about media issues; obvi-ously, as b any proceeding, all witnesses were employed by particular parties to represent various v;uws.) The proper conclusion to be drawn from the statements in this finding is that the LILCO witnesses knew the f acts (about the Plan, Exercise events, and post-Exercise plan revisions) and testified in terms of them, whereas Intervenor witnesses
! testified in generalities because they had no personal knowledge of the Iacts.
540 No citation; refuted by See Response to I.F. 537 (Mr. Patterson has ex- j record tensive experience with the media.) See q LILCO Test. Cont. EX 38 and 39, ff. Tr. 3207, .
at 2-3 (The LILCO witnesses, particularly Mr. Daverio, had considerable knowledge about l
t i
-132-i Intervenor '
Propcsed Finding LILCO Response Explanation emergency planning requirements and regula-tory compliance, whereas Intervenor witnesses did not.) l 541- Not supported by cita- See Response to I.F. 533, 535; Tr. 7870, 7882 tion (Baldwin); FEMA EX Exh. I at 53 (FEMA iden-tified as a Deficiency the " insufficient copying capabilities at the ENC [which] resulted in delays in the distribution of information"; this was an equipment, not a " performance" prob-lem.) ,
4 543,n.343 Out of context S_ee, e e.g. L.F. 356 (The media also receive in- i formation via broadcast EBS messages.)
543,n.345 Unjustified inference; See L.F. 334-37 (It was LILCO's observation, no citation; not sup- not its " chief defense to the allegations," that ported by citation; out LILCO and Interveners hold differing views re-of context garding the media's role.)
Evans e_t a_1. (Test. Cont. EX 38 and 39), ff. Tr.
3786, at 38 but not at other citations (The pri-macy of the media's role in disasters was not
" received wisdom" but just the opinion of two of Interveners' witnesses, and was contradicted by Interveners in this very footnote:
" enhancing public health and safety may not be the primary function of the media".) See N.F 264,268 (NRC regulations and FEMA guidance support LILCO's position on the subordinate role of the media.)
See SC EX Exh. 46 at 282-94 (Interveners cite '
out of context the first sentence from a 13 page article in which Dr. Mileti considers whether "the media contribute to disaster psy-chological effects - both positive and harm-ful".)
LILCO Test. Cont. EX 38 and 39, ff. Tr. 3207, at 92; Tr. 3731-32 (Mileti) (Dr. Mileti testified that media accounts about the exposure levels of those being monitored at the reception cen-l ter would be the greatest determinant of the
! size of any potential monitoring shadow, not that media reports would shape people's re-sponse to the EBS messages. In fact, Dr. Mileti asserted that the potential for a monitoring shadow during the Exercise would have been
-133-Intervenori Proposed Finding LILCO Response Explanation '
minimal given the good quality of the EBS in-formation.)
545, n. 348 Refuted by record See L.F. 346,'n. 59 (The connection between the number of Unusual Events and Alerts in the U.S. In 1986, and the matter at issue identified by Mr. Patterson, is that.the press are used to such events and consider them a " common thing".)
547 Refuted by record See L.F. 344; I.F. 550,553; Tr. 3418-20 (Rob-inson) (LILCO witnesses testified repeatedly that no " blackout" existed prior to ENC activation because there were other sources of -
information available to the media, including LILCO press releases and an EBS message.)'
N.F. 278 (NRC Staff agreed that there was no 4
" blackout" or " cover-up" during the Exercise.)
-548 Not supported by cita- See L.F. 351; Tr. 3526 (Patterson),3407 (Mileti) tion (LILCO witnesses testified that reporters are never " satisfied" with official information, and a seek comment from alternative sources as a matter of course.)
549 Not supported by cita- See SC EX Exh. 46, at 286-87,289,284 (no ref-i- tion; unjustified infer- erence to NRC regulations.) The purpose of ence NRC public information regulations is to make sure the emergency response authorities pro-vide coordinated and sufficient information to the public, not to manage how the press re-ports emergency events.
551 Unjustified inference; See L.F. 347 (FEMA witnesses also testified not supported by cita- that ENC activation was timely.)
tion; refuted by record See L.F. 343, 345, 349; LILCO Test. Cont. EX 38 and 39, ff. Tr. 3207, at 16-17; Tr. 3419 (Rob-inson), 3421 (McCaf f rey) (LILCO w itnesses testifled that it takes a certain finite time to activate the ENC, and that it is possible that a f ast-breaking accident will outpace ENC activation, but that that is why there are in- ]
terim procedures for public notification out- i side the ENC.) See Tr. 3420 (Robinson)(ENC .
activation "certainly is related" to the level of l emergency at the plant.) Tr. 3352 (Patterson)
(The ENC should be activated at the Site Area l Emergency level.) j l
l
-134- :
Intervenor Proposed Findinr LILCO Response Explanation 552- Unjustified inference; See L.F. 347 (FEMA witnesses concluded that no citation the activation procedures were adequate.)-
L.F. 350 (ENC activation should be keyed to the emergency information needs of the public, not the " dictates" of media interest.) LILCO did not testify that initiation of activation is ~
the relevant consideration.
552,' n. 351' Unjustified inference Interveners' finding implies that Shoreham -
should be held to a higher standard than other plants, but the regulations and guidance pro-vide uniform requirements for all plants.
'554- Not supported by cita- Tr. 3429-30 (McCaffrey)(LILCO News Releases tion; unjustified infer- Nos. I and 2 are the "on-site programs press I ence releases and they are not intended to provide information for off-site actions of the public";
they do give partial information on offsite im-pact.)
554,n.354 Refuted by record; out- See L.F. 344, n. 58 (Dissemination of LILCO side the scope of the News Releases was simulated during the Exer-contentions; relitigation cise. Dissemination procedures are part of the of planning issues onsite plan. Interveners defaulted on the liti-gation of the onsite plan issues and cannot liti-gate them here.)
555 Refuted by record; See PID at 689-91,698 (The pre-scripted EBS relitigation of planning messages were found adequate, and the specif-issues ic criticisms were dismissed.) See L.F. 334-35 (The purpose of EBS messages is to provide in-formation and instructions to the public, not to
" satisfy" the media.)
556 Refuted by record Tr. 3436-42 (McCaffrey, Robinson) (The CCD receives press releases and information from the Supervising Service Operator, has ready access to the Emergency Communications Li-alson in the control room, and initiates infor- i mation inquiries to LERO and other informed sources.)
556,n.355 Out of context; un- Tr. 3435 (McCaffrey) (The CCD deals with the justified inference press every day and is part of the onsite plan.)
557 Unjustified inference See Response to I.F. 547 i
-135-Int:rvenor Proposed Findinst LILCO Response Explanation 558 Not supported by cita- See PID at 687-97; Memorandum and Order tion; relitigation of (Ruling on LILCO's and Staff's Motions to planning issues Strike Suffolk County's Testimony on Conten-tions EX 38, EX 39, EX 22.F, EX 44, EX 40.C, and EX 49.C) at 9-10 (April 17,1987) (Credibil-ity with the public was previously litigated and was excluded from this proceeding.)
559 Out of context; not sup- See L.F. 353-55; Tr. 3446 (Robinson) ("Since ported by citation written press releases are historical events that happened that doesn't make it inaccurate or inconsistent".) LILCO's witnesses testified that the time of issuance of LERO News Re-lease No. I was not established. Tr. 3445 (Rob-inson) (It was "sometime af ter 8:25".)
560 Not supported by cita- Tr. 3488 (Robinson)(Ms. Robinson testified tion that the news releases were distributed "later than we would have liked".) FEM A EX Exh. 5 at 36 ("There is no time requirement for the distribution of news releases to the media".)
562 Not supported by cita- Tr. 7786-87, 7776-78, 7792-96 (Keller) (There is tion no suggestion that FEMA witness agreed "in es-sence" or at all, that news release effort was counter productive or injected confusion and misinformation into the process.)
563 Out of context See L.F. 355,359-60 (News releases are not in-tended or relied upon to contain the most up-to-date information.)
565 Refuted by record S_ee L.F. 355; Tr. 3508 (Patterson) (Reporters will know that EBS messages, broadcast every 15 minutes to provide information and instruc-tions to the public, are more up to date than
" follow up" hard copy press releases.) FEMA EX Exh. 5 at 39 (There should be no confusion resulting from hard copy confirmation of pre-viously released EBS information.)
566 Not supported by cita- Tr. 3492-99 (Robinson)(The substance of EBS tion messages was given at press conferences, al-though the full text was not.)
Tr. 3500 (Robinson)(Ms. Robinson did tell the press that people outside the EPZ had no need 4 to take protective action.) {
i l
l h _____.- m_-____
-136-L r
3 I
Intervenor eroposed -]
Finding LILCO Response Explanation i
566,n.363 Unjustified inference Tr. 7808 (Keller)(The FEMA evaluator merely ,
suggested that the most recent EBS message should be read at the press briefings; this was !
not identified as a " problem".)
t l 567 Unjustified inference; See L.F. 355; LILCO Test. Cont. EX 38 and 39, .
not supported by cita- ff. Tr. 3207, at 29; Tr. 3508 (Patterson) (Re-tion porters know that LERO news releases are only l
one of many sources of background, not pri-mary information.) FEMA EX Exh. 5 at 35; Tr.
7786-87 (Keller)(FEMA did not say that the ab-sence from news releases of additional infor-mation constitutes flaw in Plan.) .
l 568 Not supported by cita- Tr. 7777-78 (Keller)(Issuance of LERO news tion; unjustified infer- releases should not be held up; more recent in-ence formation should be announced.) Tr. 7775-76 (Kowleski, Keller)(The FEMA witnesses were satisfied that there was compliance with NUREG-0654 S II.G.4.)
570 Refuted by record See L.F. 377 (Both LILCO and FEMA disputed allegations in EX 38.F.)
571 Unjustified inference; See L.F. 388 (LERO news releases mirror the-not supported by cita- EBS messages, so the press will not receive less tion information.) Tr. 3472 (Daverio) (The June 6-drill was the only post-Exercise drill at which similar copying problems occurred.) Tr.
3505-06 (Patterson)(Mr. Patterson did not agree that anything short of the entire text of the EBS message would be considered defi-cient. He stated only that some reporters might not be satisfied, but they would simply ask questions.)
572 Refuted by record, un- See L.F. 388 (LILCO is not providing less infor-justified inference mation now than was demonstrated in the Ex-ercise. The summary sheets are a supplement to the news releases.)
573 Not supported by cita- See 10 C.F.R. S 50.47(b)(7); NUREG-0654 S II.G L
tion (The regulations and guidance do not specify the purposes of press conferences.) j 575 Refuted by record Se_e L.F. 361-76; N.F. 309-10, 313-22 (LILCO l _ witnesses testified, and the Staff agreed, that LERO and LILCO personnel performed ade-quately during press conferences.)
f l -137-l j-Intervenor Proposed Finding LILCO Response Explanation 577 Not supported by cita- See L.F. 365; Tr. 3510-11 (Robinson) (The stat-tion ed reason for Ms. Robinson's decision is but one of several, not the "only" reason.)
577,n.372 Out of context See FEMA EX Exh. 5 at 40 (FEMA agreed with LILCO that the media would have heard the in-formation via EBS broadcasts.)
578 No citation; refuted by See L.F. 364-66; LILCO Test. Cont. EX 38 and record 39, ff. Tr. 3207, at 31-32 (Robinson) (Ms. Rob-inson never testified that news of a full scale evacuation would be unimportant to the media; only that the media would have received the same information by other means.)
578,n.373 Not supported by cita- Tr. 3361-63 (Patterson) (Mr. Patterson testified tion; out of context that reporters might become cynicalif the of-ficial information source lied to or willfully withheld information from them, but Mr. Pat-terson does not agree that LILCO or LERO did those things during the Exercise.)
579 No citation See L.F. 334-40; N.F. 263-69 (There is no evi-dentiary support for the proposition that the media is "without doubt . . . primary vehicle for communicating emergency information" (emphasis supplied) or for finding a poor "atti-tude" permeating LILCO's entire Exercise per-formance.)
581 Not supported by cita- Tr. 3235-36 (Mileti) (No reference to KI inges-tion; unjustified infer- tion issue.) Tr. 3524 (M11eti); see also Tr.
ence 3516-18 (Robinson)(Information about KIin-gestion by LERO workers does not fallinto the
" category for EBS messages to get the public to engage in appropriate decisions about pro-tective actions"; KI information is risk-related, but it is not of the type the public needs to know.) Tr. 3517-18 (Robinson) (The public ;
might be at risk, but not to a degree compara- {
ble with emergency workers.) j 581, n.378 Not supported by cita- Tr. 3522-23, 3758 (Mileti) (Dr. Mileti stated tion; unjustified infer- that if the press questioned the ENC about KI, ence the public should receive KI information from an explanatory EBS message and not via a press release / announcement.)
)
l
-138-Intervenor Proposed Findinst LILCO Response Explanation 582 No citation; unjustified See Response to I.F. 579.
inference.
5840 n.381 Out of context See LILCO Test. Cont. EX 38 and 39, ff. Tr.
3207, at Att. P, p. 21 (Immediately af ter Ms.
Robinson's answer, Mr. McCaffrey elaborated on the onsite evacuation recommendation, explaining why those whose homes border the plant were not automatically evacuated along with nonessential onsite personnel.)
585 Refuted by record; un- Tr. 3564 (Mileti) ("What was simulated . . .
justified inference; not including the minor inconsistencies and prob-supported by citation lems everyone is talking about . . . was emer-gency information heaven".) See L.F. 374; LILCO Test. Cont. EX 38 and 39, ff. Tr. 3207, at 44-45; Att. Q, p. 6 (Satisf actory information on the fuel truck was given at the press con-ference; the important thing is public health and safety, not the media's " satisfaction".)
587 Refuted by record; out See L.F. 416; Tr. 3571-72,3574-75 (McCaffrey, of context; unjustified Robinson) (Dr. Brill is an independent scientist, inference unassociated with LERO or LILCO.) Tr. 3578 (Judge Shon) (Judge Shon correctly attributed the inaccurate dose reduction figure appearing in LILCO Test. Cont. EX 38 and 39, ff. Tr.
3207, at Att. P, p. 55 to f aulty transcription.)
588 Refuted by record See Tr. 3759 (Patterson) (Interveners' testimo-ny on the impact of Dr. Brill's statements is pure speculation. In any case, Mr. Patterson testified that the Brill appearance might even have enhanced LILCO's reliability and be- !
llevability.) l 589 Relitigation of planning See Response to I.F. 558 (Credibility with the issues public was previously litigated.) ]
589,n.389 Refuted by record S_ee e L.F. 375, n. 72 (Ms. Robinson's wind shif t statements were largely accurate.)
590 Not supported by cita- S_e.e L.F. 382 (LILCO did not concede that the j tion; relitigation of LERO Spokesperson and the ENC do not have l planning issues access to all necessary information as required l by NUREG-0654 S II.G.4.) See L.F. 558 (Credi- l bility with the public was previously litigated.) l l
1 i L ___ _ _ -
-139-Interverer Proposed Finding LILCO Response Explanation !
I 591 Not supported by cita- Tr. 3361-63 (Patterson) (There is no suggestion tion; refuted by record that Mr. Patterson agreed with any of the speculative and hypothetical statements made j in Interveners Proposed Finding 591.)
'591,n.390 Unjustified inference Tr. 3531-32 (Patterson) (In a real emergency, the spokesperson would have been able to pro-vide more information because " questions gen-erate the ability to get answers".)
591,n.391 Unjustified inference See L.F. 2 (LILCO and LERO are totally sepa-rate entities for emergency purposes.)
592,n.393 Unjustified inference; See L.F. 385 (LILCO did not state that LILCO not supported by cita- News Releases would have been of " limited tion utility" to the Media Monitors but that they "contain mostly technical information . . . that is not of utmost concern or significance to the public in terms of their making protective action decisions" (emphasis added).)
594 Refuted by record; not See Response to LF. 533,535,541; FEMA EX supported by citation Exh. I at 53 (The Deficiency found by FEMA at the ENC was the " insufficient copying capabil-ities . . . [which] resulted in delays in the dis-tribution of information", not LILCO's "perfor-mance at the ENC" as erroneously and repeat-edly alleged by Interveners; there is no support for the statement that Interveners identified many additional inadequacies in ENC perfor-mance.)
Tr. 7774, 7776-78, 7848-49 (Keller) (FEMA wit-ness Mr. Keller testified that: (a) the inconsis-tency between EBS message No. 2 and Press Release No. I was "not a serious problem", (b) misleading information should not be distrib-uted to the public, (c) the dissemination of in-formation in this instance satisfies NUREG-0654 because, due to inevitable processing
' time, "there is (no] way for simultaneous pro-duction of hard copy of EBS messages or news releases while the EBS message is being broad-cast," and (d) "if there was another . . . f ailure to properly communicate information, that's another problem".) See FEMA EX Exh. I at 53 (FEMA found that the press conferences " pro-vided requested information and answered questions presented by media representatives".)
l
-140-Intervenor i Proposed
) Finding LILCO Response Explanation l
See N.F. 325 (The news media was not "provid-ed inaccurate or inconsistent information in such a way as to adversely affect public infor-mation or intervene with information con-tained in the official EBS messages"; LERO ENC performance would not "have had a detri-mentalimpact on public health and safety".)
595 Not supported by cita- Tr. 3415 (Mileti); SC EX Exh. 46 (Dr. Mileti tion does not support Interveners' arguments on LILCO's attitude toward the media.) i 596 Not supported by cita- See Response to I.F. 533,535,541 (FEMA did tion not " agree" with EX 39; the Rumor Control De-ficiency stemmed from the copying equipment problem.)
597 Out of context See L.F. 392; LILCO Test. Cont. EX 38 and 39, ff. Tr. 3207, at 61-65 (It is true that Rumor Control personnel used EBS messages and news releases to answer inquiries whenever possible, but many of the inquiries sought very specific information on wide-ranging subjects (eg, lob-sters, Arab terrorists, radioactive appliances),
making the inquiries unanswerable without ex-tensive independent investigation. This fact accounts for, and makes reasonable, the time periods between inquiries and responses.)
597,n.399 Out of context LILCO Test. Cont. EX 38 and 39, ff. Tr. 3207, at 55-56 (Under Revision 7, all LERO and LILCO news releases and summary sheets are simultaneously transmitted over the TSO com-puter to allocations from the EOC; plus, LILCO news releases are now simultaneously transmitted to allocations from the EOF.) ;
598 Religitation of planning PID at 699 (Curiously, Interveners argue here l 598,n.400 issues that Rumor Control would be " jammed" with up to 400,000 calls from the public, whereas in the Plan hearings Interveners argued that no one would call Rumor Control because of LILCO's low credibility.) <
l 600 Relitigation of planning PID at 700 (The structure and design of '
issues; refuted by LILCO's Rumor Control system has already record; out of context been litigated; the Board found that LILCO's centrally-coordinated system " clearly con-forms" to NUREG-0654 S II.G.4.C.) See L.F.
-141-Intervenor Proposed Finding LILCO Response Explanation l
391,393-94 (LILCO and FEMA agreed that Rumor Control problems stemmed largely from q broken copiers, not from a " fundamental struc-tural problem" or " pervasive implementation failure".) See LILCO Test. Cont. EX 38 and 39, ff. Tr. 3207, at 60 and Att. A (LILCO addressed individual responses only because the conten-tion itself attacks individual responses as un-timely. Concerning the overall consequences of Rumor Control activity, Dr. Mileti testified that Rumor Control problems of the type that occurred in the Exercise would have had little impact on the public health and safety because of the overriding effect of the EBS system.)
4 602 Unjustified inference; Tr. 3633 (McCaf f rey), 3642 (Robinson) (LILCO's not supported by cita- testimony is not inconsistent; the Call Boards tion and District Offices operate 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day as l
part of the electric system operations depart-ment; they are available to provide a commu-nication function and have access to informa-tion. Prior to ENC activation they are not re-quired to be activated as part of the Shoreham ;
emergency operation, and are not staffed to l that level with communication links with the ENC.)
602,n.403 Not supported by cita- Tr. 3605 (McCaffrey),3606 (Daverio) (The cus-tion; refuted by record; tomer account representatives answering in-unjustified inference quiries at the District Offices and Call Boards have been trained by the onsite organization.) ,
Tr. 3633, 3637, 3642 (Daverio) ( Although it is '
true that not all such persons have been trained to answer nuclear-related inquiries, they are very experienced in calling persons 1 who can answer those questions.) j LILCO Test. Cont. EX 38 and 39, ff. Tr. 3207, at 59; Tr. 3640-41 (Robinson) (LILCO's testimo-ny was not merely a suggestion that people i would call local radio stations before the ENC ]
was operational but that experience (e.g. dur- i ing power outages) showed that was what peo-ple did do.) As is obvious from Rumor Control j activities during the Exercise, LILCO has not lef t the handling of inquiries to local radio sta-tions.
l I
I
-142- i Intervenor Proposed Finding LILCO Response Explanation 603 Out of context See Response to I.F. 533, 535, 541, 594 (FEM A's ENC and Rumor Control Deficiency was based solely on the copier problems.) L.F. 357-58, 394-95; N.F. 286, 335 (The copier problems do not constitute a fundamental flaw in the LILCO Plan; although FEMA wants to evaluate the copying improvements at a future exer- i cise, that is a planning, not an Exercise mat-ter.) j
.605 Refuted by record; un- See I.F. 597, n. 397; LILCO Test. Cont. EX 38 justified inference; not and 39, ff. Tr. 3207, at 63-64; Tr. 3651 supported by citation (Daverio)(A person in a District Office or Call Board can answer an inquiry if he has the in-formation; but he cannot initiate inquiries (e.g.
telephoning a school) to get that information because that would take him away from his main job of answering the telephone.) 1 606 Reiltigation of planning See Memorandum and Order (Ruling on LILCO's i issues and Staff's Motions to Strike Suffolk County's Testimony on Contentions EX 38, EX 39, EX 22.F, EX 44, EX 40.C, and EX 49.C), at 9-10 (April 17,1987)(LILCO's credibility with the public was previously litigated and decided in LILCO's f avor, and was excluded as a litigable subject in this proceeding.)
607,n.407 Out of context It cannot be said that a fundamental flaw in the Plan exists because a single customer ser-vice representative did not remember certain information, especially since the correct infor-mation was being clarified and stressed to the public via an announcement to the media at the ENC.
609 Refuted by record; un- See Response to I.F. 605 (LILCO does not justified inference; no argue, as Interveners allege, that its front line citation personnel cannot be permitted to make inde-pendent decisions.) See L.F. 392; Tr. 3644-45 (McCaffrey)(LILCO witnesses testified that i the reasonableness of a given response time j
! depends on the nature of the information i
! sought, and that the rumor inquiries simulated j f during the Exercise sought extremely diverse j and specific information. Mr. McCaffrey's tes- J timony was no_t simply that it takes longer to j l answer questions about specific individuals; he !
! used Rumor No.10 merely as an example.)
1 l
i
_ _ - - _ _ - _ l
-143-Intervenor Proposed .
Findinst LILCO Response Explanation 611 Refuted by record FEMA EX Exh. 5 at 53 (FEMA testified that the response to the lobster inquiry was "cor-rect and accurate".)
612 Not supported by cita- Tr. 3645-46 (McCaf f rey) (Mr. McCaf f rey tion testified that the inquiry about whether the caller's appliances were radioactive was a radiological question and, although the ques-tion might have been answered more quick'y, if he were the person at the District Office, he would forward it to the ENC.)
613 Not supported by cita- Tf. 3701-02 (McCaffrey) (LILCO did not con-tion cede that the response to Dan Rather's inquiry was incorrect.) See FEM A EX Exh. 5 at 54 (FEMA witnesseEEtified that the advice given in this instance was " good )
Tr. 3705 (McCaffrey) (The procedure requires only that the caller be referred elsewhere if the media response person does not have re-sponsive information.)
l 615 Refuted by record See L.F. 391,394; N.F. 344 (The only "under-I lying problem" with Rumor Control ouring the Exercise was that the copy machines broke down; there is no basis for a finding that Rumor Control personnel showed bad judg-ment.)
616 Not supported by cita- LILCO's argument that the purpose of Rumor .
tion; unjustified infer- Controlis to monitor for and aggressively dis-ence pel real remors directly addresses the perti-nent issue here, la, the ramifications of Rumor Control responses and other informa-tion upon overall public health and safety. The obvious purpose of Rumor Controlis to control rumors, and LILCO did just that during the Ex-eccise. LILCO Test. Cont. EX 30 and 39, ff.
Tr. 3207, at 5G-57; s_e_c NUREG-0654 S II.G.4.C (blLCO need only demonstrate " coordinated ar-rangements for dealing with rumors".)
Tr. 3602-03 (Mileti) (Dr. Mileti does not even comment on the LILCO system here, let alone suggest that it would foster the proliferation of misinformation and potential spread of ru-mors.)
.r.
-144- q e I
{'
- Intervenor Proposed Finding . LILCO Response Explanation 017 Unjustified inference; FEMA EX Exh.1 at 53 (FEMA did not testify not supported by cita- that LILCO's Rumor Control system isl'am-tion bersome, inefficient and ineffective"; FEMA stated only that "because of the slow distribu-tion of EBS messages to Rumor Control from the LERO PIO, the Rumor Control staff did not have current information concerning pro-tective actions".)
! 618 Refuted by record See L.F. 391,395; LILCO Test. Cont. EX 38 and l' 39, if. Tr. 3207, at 60,69-70 (LILCO did con-test Intervenor witnesses' opinions about the consequences of Rumor Control activities: Dr.
Mileti testified that Rumor Control performed well and that the few small problems identified by Interveners would have had no significant impact on public health and safety.)
619 Not supported by cita- LILCO Test. Cont. EX 38 and 39, ff. Tr. 3207, 619,n.417 tion; relitigation of at Att. P, p. 25, 26; Tr. 2402, 2436-37 (Watts),
planning issues 3230-51 (M11eti) (Testimony does not support the statement that LILCO assumed that the public would follow all of LILCO's PARS.) See Memorandum and Order (Ruling on LILCO's and Staff's Motions to Strike Suffolk County's Tes-timony on Contentions EX 38 EX 39, EX 22.F, EX 44, EX 40.C, and EX 49.C), at 5-6, 9-10 l (April 17,1987) (Preexisting fear and LILCO's credibility were previously litigated and decid-ed and were excluded as litigable subjects in this proceeding.)
622 Not supported by cita- See Prehearing Conference Order, at 25-26 tion; refuted by record; (Oct. 3,1986) (The Board stated that "[i]f In- 4 relltigation of planning tervenors prevail on Contentions EX 38 and EX issues 39 and the evidence is sufficient to conclude that a large shadow evacuation will occur, In- l tervenors will be free to claim that this consti-tutes a fundamental flaw in the plan because j- the evacuation could not be controlled".)
See PID at 656; LILCO Test. Cont. EX 38 and 39, ff. Tr. 3207, at 7 (There is no support for the proposition that LILCO and the Exercise results assumed that there would be no volun-tary evacuation. LILCO testified only that the potential shadow would not have been "sub-stantial".)
l 1
-145-1
~Intervenor i
Proposed Finding LILCO Response Explanation
)
See Tr. 3144 (Judge Shon); 3155, 3164-67 (Judge I Frye)(Interveners' statements concerning the )
burdens of proof are invalid and unsupported, l In these passages both Judges clearly state that i the only pertinent issue is whether the emer- j gency information is clear, consistent and not i confusing; the issues of pre-existing fear of ra- f diation and LILCO's credibility have been con-clusively litigated; s_ee PID at 663, 691.)
623,n.419 Refuted by record See PID at 666; L.F. 400 (Dr. Cole's survey was not based on LILCO's actual" situation-specific" emergency information and was not reflective of the urgent tone that would be ap-parent in a real emergency, and so it is not an accurate reflection of the public's response to EBS messages.)
624 Refuted by record See Response to I.F. 629.
626 Out of context Tr. 3338 (Mileti)(Dr. Mileti testified that he would not need empirical data to assess the Long Island public's actual perception of EBS messages.)
629 Refuted by record See L.F. 399-401 (Interveners' empirical data was not based on an accurate reflection of ac-l tual Exercise EBS messages.)
See N.F. 358-62 (NRC Staff agreed with LILCO that the.re were no significant deficiencies in the Exercise EBS messages.)
630 Refuted by record See L.F. 399-401 (Since the survey did not ac-curately reflect LILCO's EBS messages, Inter-venors could not establish that the messages "would themselves cause confusion and skep-ticism".)
630,n.423 Refuted by record See LILCO Test. Cont. EX 38 and 39, ff. Tr.
3207, at 9-13,14-16 (Dr. Mileti's testimony on the good quality of the EBS messages was not circular, but was instead based on over one hundred empirical studies of human behavior during emergencies. He testified that "offi-cial" emergency warnings - EBS messages -
can be made to " stand out" (from the informa-tion " soup" that is inevitable in emergencies) to the public by incorporating in them certain
_ _______ ________ _ a
-146-Intervenor Proposed
" ' Findine LILCO Response Explanation characteristics that research has shown effec-tive in helping people form accurate risk per-ceptions during an emergency. Dr. Mileti fur- .
ther testified that the Exercise EBS messages i effectively incorporated these information characteristics, making it likely, in following with the large body of empirical research, that people would focus in on those messages. In short, LILCO did not simply " assume" that the public would focus on the EBS messages; LILCO draf ted its EBS messages in light of the factors that sociological research suggests are successfulin obtaining and keeping the public's attention, and in helping the public make ap-propriate protective action decisions.)
633 Refuted by record See Tr. 3371-73 (Mileti)(The Exercise EBS messages as a whole gave the public sufficient information about the radiation risk;indeed, the messages went beyond what any other plant in the country does to inform the public of the radiation risk.)
' 633,n.424 Beyond regulatory re- Evans e_t al. (Test. Cont. EX 38 and 39), ff. Tr.
quirements; outside the 3786, at 190-91; se_e 10 C.F.R. S 50.47 (b)(5);
scope of the conten- NUREG-0654 5 ILE, G ((1) The Kemeny Task j tions Force did not say, and Interveners do not al-lege that it said, that EBS messages must in-clude the listed radiation information; (2) listed Kemeny " criteria" are not reflected in NRC regulations;(3) NRC regulations and FEMA guidance do not specify precise contents of EBS instructional messages.)
634 Out of context; un- See Tr. 3237, 3249, 3263 (Mileti) (LILCO wit-634, n.425 justified inference nesses did not concede that the EBS messages contained insufficient information on the radi-ation risk. Nor did LILCO ever testify that every EBS message contains complete radia-tion information; LILCO witnesses testified that when EBS messages are considered in the aggregate, as they must be, they contained suf-ficient information about the risk.) Tr. 3238 (Daverlo, Mileti) (LILCO witnesses testified that EBS No I need not explain how people are affected by radiation because the message states that no radiation has been released.) Tr.
3249,3254 (Mileti)(E3S No. 4 was followed a few minutes later by EBS No. 5, which does tell w_ _-_-.______.___m___.-____ _ _ _ . - _ _ . _
-147-
-l i
Intervenor i Prg osed Finding LILCO Response Explanation the public appropriately about the risk.) Tr. ,
3368 (Daverio) (EBS No. 4 tells people to stay {
tuned to the EBS station.) Tr. 3262 (Mileti)
(EBS No. 5 does not, and should not, discuss the health effects of radiation.) Tr. 3380-81 (Mileti)(Between the broadcasts of EBS Nos. 2 and 5, although no additional information
"[cloncerning the percentages of the release and how much radiation was where" was given, "there was other information that would affect what people perceived about the risk".) Tr.
3266 (Mileti) (A person would presume from EBS No. 6 that release of radiation is in the area recommended for evacuation.)
635 Out of context; un- Tr. 3240 (Robinson) (Ms. Robinson testified justified inference that the EBS messages direct the public to other emergency education materials for spe-cific risk-related information such as the health effect of specific amounts of radiation.)
-636 Relitigation of planning See PID at 660, 662-63, 666-67 (The Board has issues; refuted by record already ruled against Interveners on their proposition that the " natural inclination" of Long Island residents is to immediately evacu-ate. Specifically: human behavior in Suffolk County during a radiological emergency is like-ly to be fundamentally similar to human behav-ior elsewhere under the same conditions; peo-ple do not react'to notice of an emergency in a simple stimulus-response mode; people do not abandon reason and respond blindly to pre-existing fear; reasonable people will seek more information on which to base their actions; and during a radiological emergency at Shoreham, most people will seek out and evaluate addi-tional information af ter learning that an emer-gency exists.)
639. Refuted by record See N.F. 360 (The Staff agreed with LILCO that the public health and safety would not be adversely affected by any inconsistencies in EBS message no. 2.)
, 641 Evidence used beyond See 10 C.F.R. S 50.47(c)(2); Responses to I.F.
641,n.427 scope of admission; out- 623, n. 419,624,629,630 (Survey and focus side the scope of the group data on the EPZ's meaningfulness to L.I.
contentions residents in terms of radiation risk is irrele-vant and constitutes a challenge to NRC
-148-1 Intervenor Proposed Finding LILCO Response Explanation j regulations, which establish the EPZ as "about !
10 miles in radius".)
642 Unjustified inference See LILCO Test. Cont. EX 38 and 39, ff. Tr. ,
3207, at Att. B, EBS No. 2 (EBS No. 2 does not merely tell people "they need take no action beyond figuring out what zone they reside in".)
Tr. 3245-46, 3257 (Mileti) (Dr. Mileti stated .
that people "could conclude" from EBS No. 2 that "they could be exposed" and that tnere was "something they should shelter from" but did not concede that the message would be in-terpreted as an indication that " serious radio-active contamination had occurred or was ex-pected shortly".) Tr. 3245-46 (Mileti) (In addi-tion, Dr. Mileti testified that the statement in . ,
the message that a "very minor release of radi- I ation has occurred" correctly excluded any ref-erence to exposure of the public to radiation since that could not occur at that " point in the scenario".)
644 Refuted by record; not See L.F. 401 (There is no support for the asser-supported by citation tion that the dose information in EBS no. 7,9, and 9.1 is too technical, especially since the focus group data relied upon by Interveners is utterly unreliable.) j 644,n.429 Unjustified inference; Tr. 3695 (McCaffrey) (LILCO News Release out of context; refuted No.16 explains dose rate projections as a rate by record that is per hour.) Tr. 3696 (McCaffrey)(A
" considerable amount of time" was spent at press conferences explaining what the dose rate projections meant.)
644,n.430 Not supported by cita- Evans e_t a_1. (Test Cont. EX 38 and 39), ff. Tr.
tion 3786, at 197,209-212 (The comment on p.197 of Interveners' testimony refers to post-General Emergency messages; in any case, the l cited extracts from focus group transcripts do not support the proposition that "many focus group participants interpreted the information in the early pre-General Emergency stage EBS
! messages as meaning that high, health- ,
l threatening levels of radiatLon had already ;
been released'.)
l
-149-Int:rvenor Proposed Finding _LILCO Response Explanation 645,n.431 Relitigation of planning See PID at 662; Memorandum and Order issues (Ruling on LILCO's and Staff's Motions to Strike Suffolk County's Testimony on Conten-tions EX 38. EX 39, EX 22.F, EX 44, EX 40.C, and EX 49.C), at 5-6 (April 17,1987)(The exis-tence and effects of pre-existing fear were previously litigated and excluded from this proceeding.)
646,n.433 Not supported by cita- Tr. 3288-89, 3195-97, 3327-30 (Mileti) (Dr.
tion; unjustif.ied infer- Mileti's empirical research has not included ence many radiological emergencies because there have not been many.)
646,n.434 Unjustified inference; See PID at 688-91 (The issue of credibility and, not supported by cita- specifically, the beneficial effect of source di-tion; relitigation of versity on credibility, was previously litigated planning issues and determined in LILCO's f avor.) Tr. 3279-80 (Daverio)(EBS messages tell people to take ac-tion immediately or as soon as possible, but do not and should not tell them how much time they have to do it.)
l l 649 Refuted by record; evi- See Memorandum and Order (Ruling on LILCO's I dence used beyond and Staff's Motions to Strike Suffolk County's l scope of admission Testimony on Contentions EX 38, EX 39, EX 22.F, EX 44, EX 40.C and EX 49.C), at 4 (April 17,1987); Tr. 3185-86 (Judge Shon) (The survey i was admitted solely to shed light on whether l the EBS messages were confusing or conflict- '
ing, not to predict future behavior.) See L.F.
400 (Since Dr. Cole did not use the full text of the E'BS messages, the survey cannot be re-garded as an accurate predictor of public re-sponse.)
650 Relitigation of planning See Response to I.F. 645, n. 431, 649.
issues; evidence used ,
beyond scope of admis- l sion
]
See L.F. 400; Response to I.F. 649 (Equally im- I 651 Out of context portant to LILCO's response to the Cole survey is the f act that full emergency information and language of EBS messages were not used.)
653 Unjustified inference; Tr. 3718-19 (Mileti) (Dr. Mileti testified that 653,n.441 out of context the validity of surveys as research methods depends on their context. Interveners' f
-150-Intervenor Proposed Finding LILCO Response Explanation f
footnote 441 mentions a survey conducted by LILCO witness Lindell, but does not say wheth-er it was conducted for the same purpose Dr.
Cole conducted his survey, ia, to predict fu-ture behavior. In fact it was not, and Interve-nors know this from having seen the " Rebuttal Testimony of Dr. Michael Lindell" (July 24, 1987), filed in the OL-3 proceeding, which ad-dresses this very issue.)
l 654 Not supported by cita- See Long Island Lighting Co. (Shoreham Nucle-tion ar Power Station, Unit 1), ALAB-832,23 NRC 135, 153 (1986); Philadelphia Elec. Co. (Limer-ick Generating Station, Units 1 and 2),
ALAB-836,23 NRC 479,517-20 (1986);
Cincinnati Gas & Electric Co. (Wm. H. Zimmer 4lb Nuclear Power Station, Unit No.1), ALAB-727, 17 NRC 760,772 (1983)(It is true, as Interve-nors say, that with respect to surveys of emer-gency workers taken to determine the extent of role conflict, the Appeal Board has ruled that such surveys are relevant and should be considered. But the Appeal Board has not indi-cated how persuasive such evidence should be deemed. Moreover, the Shoreham Appeal -
Board reviewed and declined to disturb the Li-censing Board's PID findings that public opin-lon polls "have no literal predictive value" and "are very poor predictors of behavior in an emergency." See ALAB-832,23 NRC 135 (1986); PID at 667,676. Upon review of ALAB-832 the Commission took up only 3 is-sues, none related to these Licensing Board findings. Order, Docket No. 50-322-OL-3 (September 19, 1986).)
635 Not supported by cita- Tr. 3858 (Cole) (There is no support for the in-tion; unjustified infer- ference that, because some people said they ence would not do what the messages advised, the messages themselves were " confusing or other-wise not credible".)
657,n.443 Not supported by cita- Tr. 3940-41 (Cole) (The focus group research tion; out of context technique is usually used in market research on new products, and by political pollsters.) Tr.
3945 (Saegert)(This is the first time a focus group study has been done to find out how peo-pie would react in a real emergency based on a hypothetical emergency situation.) Tr. 3942-43
__ _ _ _ _ _ _ _l
-151-Intervenor Proposed Finding __ LILCO Response Explanation (Cole) (No validation studies have been under-taken to confirm or disprove such survey / focus group studies; there is no way to precisely de-termine their accuracy.)
658 Not supported by cita- See Response to LF. 655.
tion 659' Not supported by cita- See L.F. 401 (LILCO's criticism of the focus tion group data was not that Dr. Cole was better able to interpret the results than other experts, but rather that, because the tran-scripts are so unreliable and no videotape was made, it is nearly impossible to interpret the focus group results - and, more broadly, to know what transpired at the focus group ses-sions - unless one was physically present at the sessions.)
661 Refuted by record See Response to I.F. 629; LILCO Test. Cont.
EX 38 and 39, ff. Tr. 3207, at 14-16 (LILCO witnesses testified, and the Staff agreed, that there were no significant deficiencies in the r Exercise EBS messages.)
662,n.447 Outside the scope of the Evans e_t al. (Test. Cont. EX 38 and 39), ff. Tr.
contentions 3786, at 150, n. 28 (The Deposition of Joseph H. Keller e_t al. was taken in the OL-3 proceed-ing, and was not included in the Exercise record.)
1 665 Refuted by record; no LILCO Test. Cont. EX 38 and 39, ff. Tr. 3207, !
citation at 90-92; Tr. 3731 (Mileti) (A slight monitoring shadow was anticipated.) There is no support for the statement that LERO assumed zero monitoring shadow.
667,n.452 Evidence used beyond Memorandum and Order (Ruling on LILCO's and scope of admission Staff's Motions to Strike Suffolk County's Tes-timony on Contentions EX 38, EX 39, EX 22.F, EX 44, EX 40.C, and EX 49,C), at 4-5, 7-8 (April 17,1987) (The Cole survey and focus group data were admitted solely to shed light on whether the EBS messages were confusing or conflicting, not to assess LILCO's credibility or the public's understanding of radiation.)
l
~-152-L Intervenor l Proposed Finding LILCO Response Explanation l
-668 Out of context See LILCO Test. Cont. EX 38 and 39, ff. Tr.
3207, at 92 (M11eti) (Dr. Mileti also stated that
- if " media accounts depicted low levels of con-tamination and littie decontamination, I doubt that there would be any monitoring shadow".)
670 Out of context Tr. 3722, 3730 (Mileti) (Dr. Mileti also testified that "the probability (of monitoring shadow]
would decrease as distance from ( A, B, F, G, K and Q] zones decreased".) See LILCO Test.
Cont. EX 38 and 39, ff. Tr. 3207, at 91-92 (The basis for LILCO's position that any monitoring shadow would be small is the generally good quality of EBS information.)
672 Refuted by record See Response to I.F. 622 (The Exercise was not premised on the assumption that there would i be no voluntary evacuation.)
-]C. Contention EX 50: Training 675,n.458 Not supported by cita- See SC EX Exh. 95 (Test. Cont. EX 50), at l
l tion; refuted by record 10-11, Att. 2; Evans e_t a_1., ff. Tr. 3786, at 1, '
4-6; Tr. 6582-84 (Evans)(Mr. Evans never per-formed any hands-on training, independently determined a need for training, or developed evaluation criteria; his only training experi-ence was administrative supervision of training programs for the newspapers at which he was an editor or manager.) See L.F. 407; Tr.
6280-83 (Perrow) (Dr. Perrow admitted he has l no experience relevant to evaluating a training program like LERO's, and his planning experi-ence for nuclear power plants is limited to a report on organizational structure for dealing with emergencies.)
l' 677,n.459 Out of context Tr. 6304-06, 6311 (Cosgrove) (Insp, Cosgrove
' admitted to knowing very little about radiation ]
l exposure control. His experience was limited l l
to several meetings with LILCO when Suffolk i County was still participating in emergency planning and was attempting to develop a training program for police.)
-153-Intervenor i Proposed Finding LILCO Response Explanation 677,n.460 Not supported by cita- Not one of Interveners' witnesses were knowl-tion edgeable about the LILCO Plan and, therefore, were unable to judge whether there were di- i verse or redundant means of accomplishing a task or whether training for that Plan had been effective. Tr. 6255-56 (Colwell) (had generally reviewed the Plan but could not remember what parts he had reviewed),6291-92 (Streeter) (defined his f amiliarity as " cursory"),
6307-09 (Cosgrove) (admitted to reviewing only the training portions of Plan and Procedures since he last testified in 1983 when the Plan was in Revision 3), 6342-43 (Zook) (inaccu-rately stated the function of Traffic Guides and could not remember basic details of Bus Driver procedures despite the f act that his tes-timony criticizes LERO's Traffic Guides and Bus Drivers for, among other things, f ailure to follow procedures), 6587-89 (Evans) (could not recall what he was f amiliar with but claimed to have a general familiarity.)
678 Out of context Tr. 8296-98 (Keller) (FEMA provided no overall finding that LERO could protect the health and safety of the public, but FEMA was precluded i from doing so prior to the Exercise.)
678,n.461 Relitigation of planning See L.F. 454 (The Board's mandate is limited to issues; not supported by finding a fundamental flaw, not to review de citation; unjustified in- novo whether the training program or organi- !
ference zational structure is appropriate.)
678,n.462 No citation Tr. 4983,4992-95 (Lindell, M11eti); FEMA EX l Exh.1 (FEMA filed an 85 page report filled with observations, both good and bad, about the behavior of Exercise participants; Interveners' ;
claim of a data deficit is without basis. A ran- l dom collection of mistakes made by partici-pants in the Exercise will not establish a fun-damental flaw in the training program; random mistakes could be attributable to equipment problems, materials problems, or procedure ,
j problems.) !
681 Out of context Tr. 8316 (Kowieski), 8534-36 (Keller, Kowieski),
8719-21 (Keller) (Only some areas suffered a breakdown in the training program. In FEMA's opinion the number of errors was average.) Tr.
8318-22 (Baldwin, Keller, Kowieski) (FEM A's
-154-Intervenor Proposed Finding LILCO Response Explanation speculation that LILCO's approach to training might be wrong was not based on events, but on a hypothetical posed by Interveners' counsel that the same problems that occurred in the Exercise were repeated in post-Exercise drills.)
683 n.463 0 Out of context Tr. 4506-08 (Lindell) (Dr. Lindell said that, in Missisauga, members of a_d hoc organizations were trained emergency response personnel but that they were untrained about how to con-duct significant parts of the response to the chlorine spill.) >
684,n.464 Not supported by cita- SC EX Exh. 57 at 4-2 (NUREG/CR-3524 does tion not state that organizations with little experi-ence in emergency response have acute prob-lems in responding to an emergency. The study !
states only that those without experience showed less cohesion in performance than in planning.) Tr. 6421-25 (Perrow), 6539-42, 6774-78 (Cosgrove)(The citations do not ad-dress the issue of whether organizations with little emergency experience can provide an ef-fective response.)
686 Out of context Tr. 6371, 6390-91, 6405, 6456 (Perrow) (Dr.
Perrow believes that all emergency organiza-tions require a high level of training. He testified that a training program for an offsite emergency response organization must be bet-ter than a top police or fire department; the only organization he cited as an effective emergency response organization was the U.S. ,
Navy which trains its carrier crews on a daily j basis.)
686,n.465 Refuted by record See PID at 753-55 (Many of the entities in- I volved in LERO, for example, the Coast Guard, Island Helicopter, ambulance personnel, and the American Red Cross, have experience with their LERO tasks in their routine work.)
- 686,n.466 Refuted by record; out Tr. 4502-08 (Lindell) (While individual parts of l of context an emergency response organization may per-form together regularly, the whole inter-organizational network necessary for an emer-gency response does not regularly perform to-gether.) Tr. 6646-52 (Colwell) (Dr. Colwell ad- .
mitted that real-life experience was not I necessary.) I l
-155- j
.l Intervenor Proposed . i Finding ' LILCO Response Explanation l l
.693 Refuted by record PID at 751-52; Plan at 5.2; OPIP 5.1.1, p. 8 of 26 (Drills are not the equivalent of tabletops. i As provided in the Plan, LILCO conducts an j annual drill and exercise program that goes be-yond tabletops "to provide 'in the field' experi-ence and allows LERO members to practice skills gained in the classroom"; that in the field 4 experience includes free play for deci- l sionmaking.) {
693,n.468 Out of context- Plan at 5.1.7 (Some non-LILCO personnel are required to participate in drills and tabletop sessions on an annual basis.) i 694,n.470 Not supported by cita- Tr. 5480-84 (Weismantle) (While there were tion certain similarities, the practice scenarios had many elements that were different.)
700,n.473 Out of context Tr. 8293 (Kowieski) (There was no concurrence.
Mr. Kowieski classified the idea of improved performance as a result of dress rehearsals as "an assumption".)
701 No citation See Response to I.F. 702.
702 Out of context LILCO Test. Cont. EX 50, ff. Tr. 4368, at 11, 20-22; Tr. 4678 (Pursell), 4979-80 (Lindell, Mileti) (LILCO's witnesses agreed on the iac-tors to be considered in determining whether a training program is adequate. They recognized that the observable behaviors are at the indi-1- vidual level but also agreed that the assess-l ment of the effectiveness of the training pro-l gram must be made at the organizationallevel.
The content analyses reached an evaluation of the entire LERO organization; the NUREG/
CR-3524 analysis, which looked at organiza-l- tional subparts, based its conclusion on the '
whole organization.) Tr. 5096-98 (Mileti) (Dr.
! Mileti considers resource adequacy a necessary component of effective emergency response but separates it from training p_ere s_e.)
702,n.474 Out of context See Response to I.F. 702; L.F. 406, n. 89 (Drs.
Lindell and Mileti recognized that individual performance errors could be attributable to in-adequate training but might just as likely be ,
due to other causes such as equipment prob-lems, materials problems, or procedure problems.)
-156-L- IntGrvenor '
Proposed .
- Finding -LILCO Response Explanation
!702,n.475 _ Out of context See Response to LF. 702.-
l Out of context LILCO Test Cont. EX 50, ff. Tr. 4368, at 7; Tr.
703 4518-20 (Behr, Daverio, Lindell, Pursell), 4669
-(Goodkind) (Dr. Lindell stated only that FEMA's definition of Deficiency appeared to dictate that LERO was unable to provide reasonable l assurance. But, LILCO's witnesses believed
' that none of the FEMA identified Deficiencies should have been so classified.)
L .
-703,n.476 Out of context LILCO Test. Cont. EX 50, ff. Tr. 4368, at 11
- (Interveners portray LILCO's approach as in-L consistent by misciting the record. The cited E passage says that perfect performance in indi-l viduals is not necessary for a good organiza-tional performance. It does not say an organi-i zation can achieve its goals with inadequate training.)
'704 No citation Tr. 8292-93 (Kowleski) (Pre-exercise rehearsals are not uncommon. Mr. Kowieski noted that FEMA would expect improved performance "from any other site, any operating site in the State of New York or the States of New York and New Jersey".) I.F. 694; Plan at 5.1-3.
(This is part of the training program, not
" extra training".)
704,n.477 No citation See SC EX Exhs. 86, 87, 88 (Post-Exercise drills were also pre-announced, and not all LERO fa-cilities or personnel were scheduled for these drills. There was no indication of poor atten-
' dance at training drills.)
706 Not supported by cita- LILCO Test. Cont. EX 50, if. Tr. 4368, at 7,10, tion 40-41,51-52 (does not support ". . . increasing the likelihood that more problems would be identified").
'707 Unjustified inference; See L.F. 405, n. 87 (The record does not show no citation that LILCO regretted its decision to mobilize a full complement of emergency personnel, that LILCO thought its performance in the Exercise inadequate, or that LILCO attempted to excuse its performance by the number of people mobi-lized.)
I
-157- ;
Intervenor Proposed l Finding _IJLCO Response Explanation l i
I 708 No citation; refuted by See L.F.165,170-71,177-78 (The number of I record personnel mobilized permitted FEMA to evalu- '
ate the mobilization and dispatch of over 1,000 field workers.) L.F.160 (The magnitude of FEMA's observation at Shoreham was equal to or greater than that of other Region II exer-cises.)
708,n.479 Not supported by cita- See L.F. 405, n. 87; LILCO Test. Cont. EX 50, i tion; refuted by record ff. Tr. 4368, at 50,52 (LERO mobilized 1,000 i field workers of whom approximately 500 were I bus drivers; it also mobilized a full complement !
of EOC, Staging Area and Reception Center l personnel and a substantial number of ambu-lance company personnel. LERO dispatched a full complement of its field workers into the )
field, including 386 Bus Drivers,165 Traffic ]
Guides,38 Road Crew personnel and 19 Route Alert Drivers.)
708,n.480 Evidence used beyond Tr. 6795 (Frye) (SC EX Exhs. 61-80 were admit-scope of admission; out ted only for background. At every other exer-of context cise in FEMA Region II, there were fewer than the 38 evaluators at Shoreham. See SC EX j Exh. 64 at 5 (23 evaluators); SC EX Exh. 67 at 1 9 (29 evaluators); SC EX Exh. 68 at 2-4 (22 I evaluators); SC EX Exh. 69 at 2-4 (24 evalua-tors); SC EX Exh. 70 at 4-5 (35 evaluators); SC EX Exh. 71 at 2-3 (25 evaluators); SC EX Exh. )
72 at 2-3 (24 evaluators); SC EX Exh. 73 at 8 !
(24 evaluators); SC EX Exh. 74 at 4 (24 evalua-tors); SC EX 75 at 3-4 (22 evaluators); SC EX Exh. 76 at 2-3 (19 evaluators); SC EX Exh. 77 at 4 (17 evaluators); SC EX Exh. 78 at 2-3 (27 evaluators); and SC EX Exh. 79 at 3-4 (13 eval- )
uators)(remedial.) Also, FEMA observed four J counties at the four Indian Point Exercises cited. When FEMA observed the Indian Point Compensating Exercise (Aug. 24-25,1983), in which only one county with approximately the population of the Shoreham EPZ participated.
FEMA used 23 evaluators. SC EX Exh. 64 at 5.)
1 709 Refuted by record S_ee e L.F.160, 405, n. 87; I.F. 209, 210, n.147 l (At various points, FEMA could observe all l 1,000 LERO field personnel and could select at I random personnel to evaluate. With respect to the Bus Drivers, Mr. Daverio testified that l
} FEMA evaluated more than eight Bus Drivers i
l
-158-Intervenor Proposed Fitxtinst LILCO Response Explanation at the Staging Areas and Transfer Points and ,
disagreed with FEMA's Deficiency findings on the Bus Drivers.)
709,n.481 Not supported by cita- See Tr. 4550-52 (Daverio, Frye) (Neither Mr.
tion Daverio nor Judge Frye agreed that it was ap-propriate to develop a ratio of Bus Driver problems from the three problems identified in the eight Bus Drivers FEMA evaluated or that valid conclusions about human behavior could l be drawn from such a numerical ex- 1 trapolation.)
709,n.482 Unjustified inference See L.F.169-72 (The realissue is whether the Bus Driver function, which consists of many steps including determining the number of buses required at each Transfer Point; mobilizing Bus Drivers; briefing Bus Drivers on dosimetry and their routes; driving to bus yards, Transfer Points and on routes; dis-patching buses on schedule; and driving evacuees to the Reception Center, was per-formed properly.) Tr. 6550 (Cosgrove)(As Insp. Cosgrove admitted, FEM A observed f ar more than eight people performing these emergency functions at the Staging Areas.)
I 710 Out of context; refuted Tr. 5469-70 (Daverio) (Mr. Daverio did not by record; not supported agree that procedural and equipment problems by citation are of ten related to the adequacy of a training program, rather he stated that training prob-lems are not always exclusive of procedure or equipment problems.) Tr. 8290 (Baldwin)
(FEMA concurred that procedure and equip-ment problems were separable from training .
problems.) LILCO Test. Cont. EX 50, f f. Tr. )
4368, at 12; Tr. 5005-06 (Lindell, Mileti) I (LILCO witnesses said about one half of the problems identified by FEMA were training re-lated; they did not imply that substantially more than one half of the problems were training related.)
710,n.484 Evidence used beyond Tr. 5349-54,5359-62, 6795 (Frye, Monaghan, scope of admission Sutko)(SC EX Exhs. 62-80 were admitted as .
background information only; not as the basis for a finding of fundamental flaw. Findings stating that the exhibits demonstrate a certain number or percentage of " training-related -
1
-159-Intervenor Proposed Finding LILCO Response E_rplanation problems" are without evidentiary basis; there was no witness to cross-examine on the mean-ing of " training-related", and whether a prob-lem is " training-related" is not self-evident from the face of the reports.)
712 Out of context Tr. 5019-22 (Lindell) (Dr. Lindell stated that all three Staging Areas would have to experience "the same kind of problems" to establish a training deficiency and that based on his re-view of the FEMA report no systemic pattern of training deficiencies was established.)
712,n.486 No citation; unjustified FEMA EX Exh. I at 54-59 (FEMA noted only ;
inference three ARFIs at Port Jefferson; not one sug- j gested a training problem and ARFIs do not re- 1 quire correction. The fact that more problems were not identified by FEMA indicates neither the presence or absence of problems; indeed Interveners had 19 observers at the Exercise, but not one testifed that there was a problem that had not been noted in the FEMA report.)
713 Not supported by cita- Tr. 6551 (Cosgrove) (Insp. Cosgrove states only tion; no citation that three seemingly unrelated, individual in-stances of a f ailure to follow procedures would, in his opinion demonstrate a systemic prob- J lem.) L.F. 405, n. 87, 426; s_ee e e.g., I.F. 209, I 708, n. 479, 709, n. 482 (It is undisputed that about 1000 LERO personnel mounted an emer-gency response in accordance with the LILCO Plan and that at various points FEMA could ob-serve a large number of participants. Interve-nors' finding that "it is not likely that FEM A could have been aware of many problems"is contradicted by Interveners' testimony that there are many " examples" of f ailures to im-plement the LILCO Plan and Procedures. See SC EX Exh. 95 (Test. Cont. EX 50), at 102.)
716 No citation; refuted by There is no evidence that the three analyses record were either inherently subjective or biased in LILCO's f avor. LILCO's witnesses specifically l
stated that their analyses were objective and unbiased. Tr. 4588-91, 4593-95, 5275, 5279-83, l 5285 (Pursell); s_ee also Tr. 5286-87 (Lindell), l 4954-57 (Lindell, Pursell) (The critical incident '
technique is overall an objective process and the 76.6% complete agreement in the l
i l
-160-I Intervenor Proposed Findinst LILCO Response Explanation identification and classification of critical in-cidents demonstrates the low degree of sub-jectivity and absence of bias.) Tr. 4418-19 ;
(Goodkind) (The categories of training needs were not modified to be more favorable to Shoreham.)
718 Not supported by cita- SC EX Exh. 57 (The only difference between j tion; no citation the LILCO/LERO interface and the emergency i response organizations studied in NUREG/
CR-3524 is that LERO does not include state and local governments as part of its emergency response network.) LILCO Test. Cont. EX 50, ff. Tr. 4368, at 19-20 (Dr. Mileti adapted the methods used in NUREG/ CR-3524 to the data available from the FEMA Exercise.) Compare FEMA EX Exh.1 at 27-43 with SC EX Exh. 58 at 1-16 (Nothing in the record indicates that Dr. Mileti's study was biased. The parts of the report discussing Deficiencies, ARCAs and ARFIs that were not included in the analysis are summaries of FEMA's criticisms, which ap-pear in full in the textual sections that were analyzed.)
719 Not supported by cita- SC EX Exh. 57 at v, vii; s_e_e also LILCO Test.
tion; no citation Cont. EX 50, ff. Tr. 4368, at 16. ("The purpose of this research was to determine if existing regulations have led to effective interfaces be-tween utilities and offsite organizations in emergency planning and response.") Tr. 5105 (Lindell, Mileti) (Drs. Mileti and Lindell, both experts in emergency response organizations, agreed that "LERO is more than an organiza-tion . . . It [is] an organizational network."
Their opinion was uncontradicted.)
719,n.489 Not supported by cita- LILCO Test. Cont. EX 50, ff. Tr. 4368, at 18; tion; no citation Tr. 5105,5122-24,5146 (Mileti); se_e also Tr.
5105 (Lindell) (Dr. Mileti, who is very Iamiliar with the LERO Plan and the structure of the LERO organization, determined that it was ap-propriate to treat the organizational subunits of LERO as separate organizational units to evaluate their ability to interact effectively.
The f act that the subunits report to the EOC is no different than other radiological emergency response organizations which uniformly employ a command and control center to direct operations.)
-161-I-
l - Int 2rvenor l _ Proposed I- Finding LILCO Response Explanation 720 Unjustified inference LILCO Test. Cont. EX 50, ff. Tr. 4368, at 19-20; Tr. 5163-66 (Mileti) (Dr. Mileti admitted there were methodological differences be -
tween the NUREG/CR-3524 and Shoreham .
studies, but stated that he had taken those dif-ferences into consideration when evaluating the data and had not used the data to reach the -
kind of additive conclusions reached in NUREG/CR-3524. "They were both qualitative studies done in different ways.") Tr. 5128-29 (Mileti), s_ee also Tr. 5096,5111,5126-27 (Mileti) (The analysis "was simply my way of having a checklist, so to speak, at my side as I read through the FEMA assessment. In other words, I saw no systemic enough patterns in reference to these abstract sociological con-cepts that I value so much to suggest to me that there was enough bad in reference to these good concepts that I think should be in a plan or in an organization's response to an emergency.")
720,n.490 Not supported by cita- Tr. 5150 (Mileti) (Dr. Mileti stated only that he tion had conducted no interviews because af ter a !
year's time he would not have trusted people's I recollections as a reliable data base. He did not agree that interviews were crucial to this type of analysis or that adequate, accurate in-formation could not be inferred from the FEMA report.) Tr. 5112-13 (Mileti) (Dr. Mileti i said it was necessary for people to "know what their job is"in order to receive a positive score for role definition; this goes beyond mere l knowledge of job title.) LILCO Test. Cont EX J
50, ff. Tr. 4368, at 14,18-19; Tr. 5101-02,5108 (Mileti)(The use of PC to show "that something was wrong, but not totally wrong" does not contravene the purpose of NUREG/CR-3524 to look for the factors that promote coordination and cohesion. PC shows that some cohe-siveness factors were demonstrated, but others were not. PC was not considered a good score.)
721 Unjustified inference; Tr. 5119-21, 5128-29, 5153-55, 5164-65 (Mileti) not supported by cita- (Using the FEMA Report's description of the tion actions and events of the Exercise as his data base, Dr. Mileti applied the concepts of NUREG/ CR-3524. In some instances, he used 1
-162-
- Intervenor Proposed Finding LILCO Response Explanation his knowledge of the LILCO Plan to assess whether the actions described in the FEMA Report were appropriate. Interveners' criti-cism that the analysis is inappropriately sub-jective because Dr. Mileti used his judgment in scoring the factors is absurd. The analysis was used as a checklist for developing Dr. Mileti's professional opinion as a sociologist; expert opinion testimony by its very nature assumes the exercise of professional judgment by the expert.) LILCO Test. Cont. EX 50, ff. Tr.
4368, at 18; Tr. 5120-21 (Mileti) (Dr. Mileti fol-lowed his stated methodology that " FEMA comments for each objective were reviewed in terms of whether or not those comments pro-vided any information about the f actors in NUREG/CR-3524." In some instances, al-though FEMA had insufficient information to evaluate a FEMA objective, sufficient informa-tion was provided in the report to draw some conclusions about the NUREG/CR-3524 fac-tors.)
721 n.491 No citation; not sup- Tr. 5120 (Mileti) (There is no evidence that Dr.
ported by citation Mileti drew inferences not supported by data in the FEMA Report. To the contrary, Dr. Mileti stated "If FEMA didn't write anything about it in the report,I had nothing to read and, there-fore, I couldn't take it into account.") Tr.
5106-10, 5113 (Mileti) (Interveners' statement that Dr. Mileti's analysis was biased in f avor of LILCO is not supported by the citation.
Uncohesive ratings were given for perfor-mance that was better than a total f ailure, but even a partial cohesiveness rating was consid-ered a bad score. Contrary to Interveners' characterization, Dr. Mileti stated that if only 10 of 14 Traffic Guides had known the location of the Reception Center he might have rated it PC.)
722 Unjustified inference; Tr. 5126-30 (Mileti) (The study was designed to
! out of context determine both the ef festiveness potential of l the LERO organization and whether there was
! a fundamental flaw in the training program be-cause people had f ailed to grasp important concepts necessary for the organization to
[
perform effectively. Interveners' assertion that Dr. Mileti would agree that an l
- _ _ _ _ _ -_ i
-163-Intervenor Proposed Finding LILCO Rest)onse Explanation organization's effectiveness potential is no in-dication of the eileenveness of its training program is obviously contradicted by Dr.
Mileti's own testimony.) LILCO Test. Cont. EX 50, ff. Tr. 4368, at 15; Tr. 5096-97 (Mileti)
(Only the resource adequacy factor does not relate to training.)
723 Unjustified inference Tr. 5197-98 (Mileti) (Dr. Mileti did not concede that there were major limitations on the use-l fulness of his study; rather, he clearly defined the scope and weight it should be accorded.
Dr. Mileti was confident that the results of the analysis permitted him to reach the conclusion that the LERO training program had produced an organization with high potential for effec-tiveness.)
725 No citation; not sup- See Tr. 4620, 4745, 4876, 4883 (Frye), 4644-45, ported by citation; re- 4885 (Shon) (Interveners rely solely on state-futed by record ments made by the judges; these are not evi-dence. Moreover, the citations do not support t
the findings that the analyses was subjective or biased.) Tr. 4588-91, 4593-95, 4883-84, 5275-83, 5286 (Pursell), 5286-87 (Lindell)
(LILCO's witnesses testified that the 76.6%
complete agreement in the identification and l
i classification of criticalincidents indicated that the degree of subjectivity in the analyses was low and that there was no bias in the anal-yses.)
726 Not supported by cita- Tr. 5276-79 (Pursell) (Mr. Pursell disagreed that tion; refuted by record the traditional critical incident technique was not followed in the content analyses. The spe-cific methodology used in applying the critical incident technique varies with its application.
The articles cited by Interveners, SC EX Exhs.
50 and 51, had purposes that were completely different from and, therefore, employed a methodology not relevant to, the analysis of the FEMA Report. SC EX Exhs. 53 and 54 refer to training of Managers to minimize rat-ing errors when using scaled scores; they are not relevant to the kind of met or not met evaluations made in the FEMA Exercise.) Tr.
4626, 4680-81, 4685, 4691 (Pursell) (Mr. Pursell disagreed that Dr. Flanagan believed incidents needed to be important to be critical, but Mr.
-164-Intervenor Proposed Finding LILCO Response Explanation Pursell believed that FEMA tended to record the important behaviors.)
727 Unjustified inference LILCO Test. Cont. EX 50, f f. Tr. 4368, at Att.
E; Tr. 4697-99 (Pursell) (The criteria were not structured to achieve results favorable to LERO; they were constructed to be objective.)
728 Unjustified inference; Tr. 4588-89, 4592, 4926-27, 5279-81 (Pursell) not supported by cita- (There were mistakes made in applying the tion criteria, but Mr. Pursell did not concede that they were many. He also testified that he did not expect there to be perfect application of the criteria or perfect agreement between the i
analyses.) Tr. 4791 (Paris); compare, eg., SC l EX Exh. 55 at 29,37,47 (Judge Paris did not '
state that mistakes in applying the criteria generally f avored LILCO nor does the record as i a whole establish any such bias. Indeed, even '
if one were to reject 100 of the 821 positive findings Team 1 made in the Shoreham report, the resulting percentage would be 72 percent, or a ratio of almost three to one positive to I'
negative criticalincidents.) Tr. 4912-16 (Behr, Pursell) (Again, there were some mistakes in the application of the criteria to the Indian Point Report. Without reviewing both reports in their entirety, it is impossible to reach a conclusion about whether the analyses were bi-l ased in f avor of LILCO.)
728,n.496 Unjustified inference; LILCO Test. Cont. EX 50, ff. Tr. 4368, at not supported by cita- 25-27; Tr. 4955 (Pursell) (Mr. Pursell's compari-tion son of the Shoreham results (82% and 83.1%
positive) with the Indian Point results (87.2%
positive) shows an " equivalent level of perfor-mance.")
729 Not supported by cita- See Response to I.F. 725; L.F. 463; Tr. 4883-84 tion; refuted by record (Pursell)(Neither LILCO's Proposed Findings nor its witnesses agreed the analyses were bi-ased. Mr. Pursell agreed that there was some subjectivity in the analyses but that the degree j was low. He pointed to the 76.6% complete j agreement in the identification and classifica- 1 tion of critical incidents as indicating low de- 1 gree of subjectivity and an absence of bias.) 1 Tr. 4745, 4883 (Frye), 4791 (Paris) (Statements j made by the judges are not evidence. i I
4 l
_ _ _ _ - - _ _ _ _ - _ _ - - _ _ - _ _ _ _ _ _ _ _ _ _ _ O
i[
-165-
--Intervenor Fivr-.;J Finding LILCO Response - Explanation Moreover, the citations do not support the -
proposition that the analyses were biased or subjective.)
731 Unjustified inference; See L.F. 464; Tr. 5281-82 (Pursell); SC EX Exh.
out of context 57 (Interveners focus only on objectives com-pletely met and do not take into account the number of objectives partly met. . If one in-cludes objectives partially met the EOC met or partially met 89.29%; Riverhead met or par-tially met 100% and Patchogue met or partially met 95.24%. The partially met percentage also includes very positive behaviors.)
731,n.498 Unjustified inference; Tr. 5218-21 (Pursell) (Mr. Pursell used the .
not supported by cita- FEMA Report, which synthesized the com-tion ments of the FEMA Evaluators, as his data base. Generally,it was clearly stated that an objective was met or partially met; in some -
cases, such as Port Jefferson Staging Area Ojbective 5, the FEMA Report was ambiguous. 1 Mr. Pursell never agreed that Port Jefferson Staging Area Objective 5 should have been rated as partially met.)
734. Evidence used beyond See Response to LF. 60, n. 49,708, n. 480; Tr.
scope of admission 5365 (Frye, Sutko), 6795 (Frye) (The expansive use of other Post-Exercise Assessments made by Interveners should be disallowed. They were admitted only for background and they 3 require interpretation by a sponsoring witness who can attest to the methodology employed to evaluate them. LILCO was given no opportuni-ty to cross-examine Interveners' counsel who )
have interpreted these reports and drawn con-clusions about them. In essence, Interveners have attempted to draw evidentiary conclu-sions in findings that are identical to SC EX Exh. 84 that was not admitted as unreliable ev-idence.) See 10 C.F.R. SS 2.743(e), 2.754; Tr.
5349-54 (Frye, Johnson, Monaghan, Sutko) j 734,n.500 Unjustified inference (No agreement was reached that Suffolk Coun-ty's offer of proof could be in the form of pro-posed findings. Such a format is inappropriate.
Proposed findings of fact "shall be confined to the material issues of f act presented on the record.")
-166-h.Intervenor l Proposed Finding LILCO Response Explanation l'
I 738 Evidence used beyond See Response to I.F. 708, n. 480,734 (The Post-scope of admission; un- ~ Exercise Assessments were admitted for back-justified inference ground only; they, particularly ones not relied on in the LILCO analysis, should not be used as affirmative evidence.) LILCO Test. Cont. EX 50, ff. Tr. 4368, at 28, Att. C; SC EX Exh. 79 (Not only do Interveners improperly rely on ev-idence admitted only as background, but they misrepresent both its relevance and affect on LILCO's analysis. SC EX Exh. 79 is not an ap-propriate exercise to include in the analysis; it i is a remedial exercise and should be excluded as the Indian Point remedial exercise was ex-cluded. The average of Deficiencies and ARCAs for the 18 exercises that remain when the Salem remedial is removed is 42.55. This compares with the 47 at Shoreham and an av-erage of 45 for the 16 exercises analyzed by LILCO. Thus, contrary to Interveners' repre-sentation, inclusion of the Hope Creek 1985 exercise and the Oyster Creek 1983 exercise does not significantly change the analyses.)
740 Out of context; refuted Tr. 5313-15, 5323-25, 5331-33, 5335-36 740,n.503 by record (Goodkind) (Based on the language of earlier definitions and her experience as a FEMA l
evaluator at some of the exercises analyzed, i Ms. Goodkind did not agree that the earlier categories included ARFI's. Moreover, Ms.
Goodkind's analysis " relied on FEMA summary tables and FEMA tabulations. So, I feel these I may have been things that FEMA remarked upon that never made it into a table that I looked at. And, that's why I think there is some correspondence between things like sig- 1 nificant deficiencies and other deficiencies and our current tabulation of deficiencies and ARCAs where Ilef t out,if you want to callit the areas recommended for improvement."
Thus, items that were not included in FEM A's summary tables for correction were not includ-ed in the analysis of any of the 17 Exercise re-ports analyzed. For example, the 1982 Indian ,
Point Report listed 123 recommendations in l
l the text, but only 72 in the summary table. !
Ms. Goodkind used the more conservative 72 figure.)
L 4
_ _ . _ - - _______m_____.__
_ _ _ _ _ _ _ _j
-167-Intervenor Proposed Findinst LILCO Response Explanation 741 Unjustified inference See Response to LF. 740, 740, n. 503; L.F. 459, n.131.
742 Evidence used beyond See Response to I.F. 734,738.
scope of admission; un-justified inference
- 743 Evidence used beyond Response to I.F. 734,738 (Interveners again at-l the scope of admission; tempt to get SC EX Exh. 84 into evidence t
unjustified inference through the back door. There is no witness to sponsor Interveners' interpretation of what should be classified as a Deficiency as opposed j to some other classification, and their classifi-cation is suspect. Indeed, Ms. Goodkind, the only witness to testify on the relationship be-tween FEMA's former classification scheme and its present one, declined to try to classify the significance of early FEM A comments be-cause "during the 1981-1982 period, FEM A of ten did not categorize its recommendations in terms of significance.")
744, Evidence itsod beyond See Response to I.F. 734, 738, 743 (Interveners' 744,n.507 scopo of admission; un- again employ the data compiled in SC EX Exh.
744.n.508 justified inference 84, which was denied admission as unreliable and unsponsored. The same infirmities are still present; there is no witness to explain the analysis. Moreover, Interveners contradict the testimony of their training witnesses who be-lieve that every problem in an exercise is a training problem. See L.F. 403,404,n.85, 405.)
745 Evidence used beyond See Response to I.F. 734,738,743,744.
745,n.509 scope of admission; un-justified inference 746 Evidence used beyond See Response to LF. 734 (The Exercise reports scope of admission relied on in Interveners' conclusion were ad-mitted only for background. They may not be used, as here, as affirmative evidence for the conclusion that "LILCO's Exercise performance was significantly below an acceptable level.")
747,n.510 Unjustified inference; LILCO Test. Cont. EX 50, ff. Tr. 4368, at 3; Tr.
refuted by record 4425, 4430-33 (Goodkind) (Ms. Goodkind, who had been an evaluator at FEMA exercises and had prepared FEMA reports, disagreed that FEM A had ten standard categories in its
-168-Intervenor Proposed Finding: LILCO Response Explanation Post-Exercise Assessment reports. Ms.
Goodkind stated that the " ten categories have no official status with FEMA. They are the re-port writer's headings for paragraphs" and that "the categories which have been referred to change throughout these exercises.") Tr.
4433-34 (Goodkind) (Ms. Goodkind flatly re-3 futed Interveners' claim that the categories
! used were selected to favor LILCO. She fur-ther stated that using the ten categories prof-fered by Interveners "there would not be any change in the Shoreham tabulation.")
748 Unjustified inference; See Response to L.F. 60, 747, n. 510; Tr. 4430 refuted by record; evi- (Behr), 4419-21, 4427-30 (Goodkind) (There is dence used beyond no evidence that the methodology was biased scope of admission or that use of Interveners' ten categories would change the results. Interveners' examples of "Public Alerting" and "24-Hour Staffing" show the fallacy of their argument. Ms. Goodkind testified that, like at Shoreham, most other ex-ercises demonstrate shif t change with rosters and that in the demonstration of public alert-ing at other exercises EBS messages are not broadcast and sirens might not have been sounded. Interveners' reliance on the Post-Exercise Assessments at other plants should be disallowed. They were admitted for back-ground only; they require interpretation by a sponsoring witness who can attest to the meth-odology used to evaluate them.)
749 Evidence used beyond See Response to I.F. 734, 747, n. 510, 748; Tr.
scope of admission; re- 4402-03, 4412, 4418-19, 4423-24, 4433-34 futed by record; out of (Goodkind)(The categories used in Attachment context D were derived by reviewing the FEMA Re-ports and noting the categories in which FEMA found a training citation. The categories were not developed to favor Shoreham.) Tr. 4451-53 (Behr, Daverio, Goodkind) (No Field Team Op-eration training problems were noted for Shoreham because DOE-R AP Field Teams were not trained by LERO and, therefore, did not re-flect on the efficacy of the LERO training pro-gram.)
750 Evidence used beyond See Response to I.F. 734-49 (The data on which scope of admission Interveners rely to " confirm our conclusion that the LILCO training program is
-169 -
f i' / Int 2rvenor
-F W LILCO Response Explanation Finrnna fundamentally flawed" were admitted as back-
. ground only; they can not be used to carry In-tervenors' burden of proof on fundamental flaw .
. or even as confirmatory, affirmative evi-dence.)
. 752, n. 512 Refuted by record PID at 753-54; FEMA EX Exh. I at 111(The ma- ;
jority of outside organizations relied on by LILCO to provide services in the event of an emergency at Shoreham did participate in the Exercise; they were the Coast Guard, DOE, Im-pell Corporation (in the form of the Radiation Health Coordinator), and the American Red Cross.)
754- Out of context LILCO Test. Cont. EX 50, ff. Tr. 4368, at 60-61; Tr. 5685-88 (Daverio) (LILCO admitted only that " training of all school bus drivers had
-not been accomplished by the day of the Exer-cise" and that, due to attrition, some ambu-lance drivers at the Exercise had not been trained. No training problem was noted with other outside organizations. ' LILCO's solution to ambulance driver attrition is to offer training monthly; this was acceptable to RAC.)-
755 Refuted by record Tr. 5685-88 (Daverio) (Proposed fixes, except for school bus drivers, were acceptable to RAC.)
-756 Out of context; refuted FEMA Exh I at 44-45 (There was no evidence by record that "many" non-LILCO personnel had not re-ceived training. The only evidence on lack of training related to School Bus Drivers and cer-tain ambulance drivers.)
,757 Refuted by record; not See L.F. 444-55.
supported by citation 757,n.514 No citation; unjustified See L.F. 444-45 (There are no regulatory re-inference quirements that would preclude reliance on the Staff and FEMA to confirm that the training program, found to be adequate in the PID, was given to School Bus Drivers.)
i
- 758 Unjustified inference; See L.F. 444-45; FEMA EX Exh. 3 at Table 3.1, not supported by cita- pp.12,16; Tr. 5688 (Daverio) (FEMA has not
! tion found the training program for School Bus Drivers inadequate; it just has not reviewed or
1
-170-Intervenor Proposed Finding LILCO Response Explanation i
approved a method for implementing that pro-gram.)
758,n.515 Refuted by record Tr. 5682-84 (Daverio) (Process for training SWRCSD schcol bus companies was being worked out. LILCO has also made an offer to the School Bus Driver Association to train drivers.)
760 Refuted by record PID at 754; Tr. 5687 (Daveric)(Ambulance companies are required by contract to ensure their drivers are trained.)
761 Refuted by record See Response to I.F. 760; L.F. 443; Tr. 4989 (Mileti) (People, even those whose mcbility 13 impaired, will make their own transportation arrangements during an evacuation.)
762 Refuted by record See Response to I.F. 752, n. 512; L.F. 78-82, 118-37; LILCO EX Exh.12 (Test Cont. EX 15/16), at 33-34, 41-42; Tr. 5679 (Daverlo)
("Well, we did provide training to ambulance drivers and Bus Drivers as outlined in our testi-many. To my knowledge, we have provided training to everyone else I can think of sitting here.")
763 Refuted by record; not See L.F. 457; Tr. 6375-78 (Perrow) (Dr. Perrow supported by citation admitted that his testimony on attrition was based solely on drill reports, not on the Exer-cise.) Tr. 5537 (Daverio) (Mr. Daverio distin-guished between a problem with the training program and a need to train more people.)
763,n.516 Refuted by record FEMA Exh. I at 62-63,67 (FEMA made only one recommendation for additional personnel; that was that the Patchogue Bus Dispatcher be provided with trained staff to expedite dis-patching.)
764 No citation See L.F. 457; Plan at 5.2-2 (Drills are part of the training program; it is not surprising to l have new personnel enter an ongoing training program and need assistance at their first hands-on practice session.)
764,n.518 Refuted by record; out See PID at V.6.,747-49; L.F. 457; LILCO Test.
of context Cont. EX 50, ff. Tr. 4368, at 66-74; Tr.
5816-20,5839 (Daverio); SC EX Exh. 96 at Att.
I 4
1 1
_ _ _ _ - _ _ l
i
-171-Int $rvenor Proposed Findj_ng_ LILCO Response i Explanation l
7, p. 6, Att. 8, pp.1, 2, 4, 5,10,11,12, Att. 9,
- p. 42; SC EX Exhs. 89a, d; 90c, d, f; 91a, b, c, f, j, k; 92a (LILCO trains 3 shif ts of management 1 personnel and 150% of the number of personnel required for non-management positions for .
LERO; this was deemed acceptable by FEMA d and in tne PID. The entry of new personnel into an ongoing training program, especially in an organization the size of LERO, is not sur-prising. The vast majority of the Interveners' citations, which refer to new people or insuffi-cient personnel, deal with positions that have three shif t coverage, and only two shif ts are needed to provide 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> coverage. The 58%
attendance figure in the December drill was for the Bus Driver Road Rally only. The December session was a make-up session for the Road Rallies and "the last people you try to catch are usually the toughest ones to catch".
The comment in December that there were in-sufficient field personnel refers to a comment about the pre-staging of Gus Drivers, which as Mr. Daverio explair.cd, dealt with the f act that, at that instant in time, in the Site Area Emergency, the Manager decided that not l enough people had arrived at the Staging Area I to start pre-staging buses. It did not indicate a lack of trained personnel.)
766 No citation; refuted by See L.F. 457; Plan at 5.2-2; LfLCO Test. Cont.
record EX 50, ff. Tr. 4368, at 66-74 (Drills are part of LERO's ongoing training program. They are the first time that LERO personnel receive hancis-on experience in performing their jobs in a simulated emergency setting. LERO per-sonnel are not considered trained until af ter they have participated in drills.) See also PID at V.3,745,753 (Structure of Training -- first comes classroom training, then drills, and ex-ercises, with the FEMA graded exercise being th9 ultimate test. The Board also found that identification of problems is to be expected ar4d encouraged in drills and exercises.)
7S6,n.519 Refuted by record Plan at 5.2-2; NUREG-0654 IL N.2 (Drills are supervised instruction perleds): Plan at S.1-2, 5.2-1 (LERO training is a three phase program:
classroom presentation, drills / tabletops, and exercises. The classroom program is given
-172-Intervenor Propwed Finding __ LILCO Response Explanation annually and each shif t is drilled once every third quarter.) 1 7660 n.520 Refuted by record See L.F. 457.
767 Refuted by record See L.F. 448 (LILCO and FEM A agreed that dosimetry is a chronic probleru because people find it hard to remember detailed information that is rarely used.) 3 772 Unjustified inference; See Response to I.F. 846; Tr. 6384-89, 6410 not supported by cita- (Perrow), 5039-40 (Lindell) (LILCO's and Inter-tion venors' witnesses agreed that the significant events in a radiological emergency are antici-pated and planned for under the NRC and FEMA regulatory framework that is incorpo- j rated in the LILCO Plan and LERO training program. Specifically, the characteristics of the hazard (such as its location at the i Shoreham Plant and its predicted scope and se-verity) and the characteristics of the commu-nity around the hazard (such as its population, traffic volume, and roadway network) are rea- j sonably predictable and are planned for in the LILCO Plan, and they are, therefore, routine.
Interveners admitted that incidents in the Ex-ercise that fit their definition of non-routine j events, such as Dan Rather and the CBS news team coming into the EPZ, trucks being sent through the EPZ, field teams stopping in the EPZ to do dose work, and Rumor Control, were not critical elements of a response to an emer-gency at a nuclear power plant.) SC EX Exh.
95 (Test. Cont. EX 50), at 101 (Interveners stretch their own testimony beyond its limits. ;
They state only that LERO workers would not ;
have time "to think hard about whether or not to read their dosimeters.") l 773 Reluted by record See Response to I.F. 772; L.F. 405, n.88, 406 (Not every LERO member must follow his pro-
! cedures to the letter to ensure an effective re- ,
I sponse; indeed, emergency organizations formed ad hoc have provided an effective re-sponse to emergencies where they had to de-velop the response without the benefit of any guidelines.)
l l
l
-173-Intervenor Proposed Finding LILCO Response Explanation
- 774. Refuted by record; not See L.F. 424-25, 429-30, 453 (Interveners have supported by citation not demonstrated a pattern of failures to fol-low procedures in the Exercise that could lead to the concludon the training program was fundamentally flawed. Their attempt to mag-nify the instances of failure to follow proce-dures to the letter or to achieve what Interve-nors believe to be the purpose of the proce-dure, e2 g. actual notification of the FA A, by relying on drill reports is beyond this Board's jurisdictional mandate. If no fundamental flaw was established in the Exercise, the drill re- '
ports need not be examined.)
774,n.521 Refuted by record See L.F. 424-25,434, n.117 (No pattern of f ail-ure to follow procedures is established by In-tervenors' list. Interveners cite no procedures that were not followed nor could they; many of the items listed do not relate to a failure to follow and implement procedures. For exam-ple," difficulties experienced by LILCO's Bus l Drivers in locating residences" is reported in l FEMA EX Exh. I at 67 to be a problem with maps; " excessive route alerting time.s" cannot be a failure to follow procedures since OPIP 3.3.4 does not specify any times.)
774,n.522 Out of context; refuted See Response to LF. 774; L.F. 453 (As with the by record Exercise, Interveners have cited selected inci-dents of less than perfect performance from the drill reports. Many incidents do not show any failure to follow the procedures; others, which might appear to indicate a f ailure to fol-low procedures, were explained by LILCO's witnesses to be within the meaning of the pro-cedures.)
June 6--See LILCO Test. Cont. EX 50, f f. Tr.
4368, at 68-69,73; LILCO EX Exh.11; SC EX Exh. 96, Att. 7 at 5 (The drill report says that the Traffic Guides "all were very f amiliar with their Traffic Guide duties. Several, however, were still not clear on the procedure regarding reaching certain exposures." None of the Guides had received revised dosimetry training until November.) LILCO EX Exh.11 at 1 (EBS messages were issued within the required time frames. Only 1 of 6 messages was late); LILCO Test. Cont. EX 41, ff. Tr. 272, at 26; Tr.
m ,
4h-,
-174 -
_ ) :-
Intervenor YW
' Finding LILCO Response Explanation--
l 650-54, 903-04,1012-16 (Weismantle) (An EBS message is not required for traffic impedi-
!L ments.) Tr. 5757 (Behr) (The traffic impedi-ment occurred 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> and 20 minutes af ter the evacuation order, so there was no need to inform the RHC because there would be no change in the protective action recommenda-
. tion.) Tr. 5758-61 (Behr, Daverio) (A simple mistake in transcribing a message is not indic-ative of a failure to follow procedures nor can one expect follow up action on a miscommuni-cation where a visual check of the scene .
showed no impediment and there were no other messages concerning that impediment. As was the case during the Exercise, the problem in the drill was that there was insufficient input from controllers for the players to recognize there was an impediment.)
Sept.10 and 17-LILCO Test. Cont. EX 50, ff.
Tr. 4368, at 69-71; s_ee 10 C.F.R. Part 50, App.
E.IV.D.3; Tr. 5783-93 (Behr) (eg., Sirens were sounded when they were required, by regula-tien, to be sounded); SC EX Exh. 96, Att. 8 at 7 (The Emergency Preparedness Group is not a drill participant, and the people who belong to this group are not members of LERO.)
Oct.1-LILCO Test. Cont. EX 50, ff. Tr. 4368, at 68-69; Tr. 5750-83 (Behr) (The drill report specifically states that the reason players were walked through their jobs by more experienced personnel was because they were new; modifi-cations to training in dosimetry were not made until November.)
Dec. 2--LILCO Test. Cont. EX 50, ff. Tr. 4368, at 71-72: Tr. 5809-41 (Behr, Daverio); SC EX Exh. 96 at Att. 9, p. 20 (eg., the two Traffic Guides who arrived at their posts in excess of 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> arrived in 63 mins. Delay in pre-staging Bus Drivers was due to tho Manager's decision to delay pre-staging until a full complement of drivers had arrived at Staging Areas.)
Dec.10-See LILCO Test. Cont. EX 50, ff. Tr.
4368, at 71-72: Tr. 5793-841 (Behr, Davedo)
-(Blockage of the Long Island Expressway occurred long before the evacuation order and
-175-l Intervenor Pmposed Finding LILCO Response Explanation was considered by LERO to be Suffolk County's responsibility.) See OPIP 3.9.1, pp. 3 of 30,25 of 30 (There is no procedural requirement for the Director to consult with the RHC before authorizing excess exposure.10 REM is well 4 below EPA PAG's for emergency workers.) SC >
EX Exh. 56 at Att. 9, pp. 39-40 (The vast ma-jority of the Traffic Control Points were i manned in one hour.)
775 Refuted by record; not See LILCO Test. Cont. EX 50, ff. Tr. 4368, at supported by citation 40-43, Att. B; Tr. 5538-40 (Daverio); FEMA EX Exh. I at 61 (Attachment B deals with all prob-lems cited in the Contention; FEMA's recom-mendation was to revise OPIP 4.7.1 to allow use of telephones on second floor, not to revise training.)
775,n.523 Refuted by record LILCO Test. Cont. EX 50, ff. Tr. 4368, at 43, Att. B; Tr. 5538-40 (Daverio) (Testimony refers to Attachment B which addresses all refer-ences in the Ccntention. LILCO conceded that the letter of the procedure was not followed, however FEMA's recommendation was to change the procedure, not to do more training.)
775, n. 524 Refuted by record Tr. 5383-96 (Daverio), 4370, 5382 (Behr, Daverio)(Witnesses stated that Attachment B was prepared under their supervision. Al-though Interveners disagree with some of the summarizations made in Attachment B,its reliability and accuracy were unchallenged.)
777 Refuted by record See L.F. 409-12 (Problems that occurred were a result of one individual's f ailing and the low fidelity of the impediment simulations; neither the Plan nor LERO training addresred severe impediments.)
777,n.525 Refuted by record Tr. 6258-60 (Colwell), 6264-66 (Colwell),
6276-80, 6284 (Perrow), 6683 (Cosgrove),
6689-90 (Zook)(Citations reveal that Suffolk County witnesses were not exactly sure what they reviewed to reach their conclusions on impediments and at one point admitted to relying on the testimony of other witnesses.
Indeed, under questioning, they could not recall some of the usost fundamental requirements for public notification.)
l I
l
-176-Intervenor Proposed Finding LILCO Response Explanation 778 Refuted by record OPIP 3.6.3, 4.1.2; se_e L.F. 224 (LILCO agreed that the Evacuation Route Coordinator did not inform field personnel that the gravel truck impediment included multiple vehicles or that the fuel truck impediment posed the possibility of fire and was blocking both road shoulders; however, they argued that these omissions were unimportant and did not delay LERO's re-sponse.)
779 Refuted by record; un- See L.F. 210; N.F.183 (The visual check of the justified inference fuel truck impediment, which resulted in the conclusion that there was no impediment, was transmitted to the Evacuation Route Coordinator by the Transportation Support Coordinator. Since the visual check was nega-tive, there were no actions to be taken in re-sponse. This does not demonstrate a f ailure to follow procedures;if anything, this demon-strates how FEMA's low fidelity simulation caused delays.)
779,n.527 Not supported by cita- Tr. 5483-84 (Weismantle) (The types of traffic tion; refuted by record impediments practiced prior to the Exercise l were minor, not requiring rerouting or consid-
! eration of public notification or evacuation time impact. Also, prior to the Exercise, im-I pediment messages were input in the field.)
See L.F. 453; LILCO Test. Cont. EX 50, it. Tr.
4368, at 68-72 (Interveners do not link any of the comments from the drill reports with the procedures they claim have not been followed.
Moreover, Interveners selectively cite prob-lems from the drill reports; they ignore both positive comments in the drill reports and ex-planatory testimony.) Tr. 5791-809 (Behr)
(Many different types of impediments were simulated, sometimes as many as four in one training drill, M duck truck, brush fire, cess-pool truck, cement mixer.)
June 6-See Response to I.F. 774, n. 522; Tr.
5757,5777-79 (Behr); SC EX Exh. 96 at Att. 7,
- p. 4 (2:15 is whr n the EOC was informed of the gravel truck accident; this was 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> and 20 minutes af ter the evacuation order. Since the evacuation was already in progress, there was no need for the RHC to know of the impedi-ments because there would be no need to
-177-Intervenor Proposed Finding LILCO Response Explanation change the protective action recommenda-tion.) .
Sept.10-Tr. 5785-87 (Behr) (OPIPs do not specify communications time frames so this was not a failure to follow procedures. More-over, the delay in communication had no over-allimpact on the response since traffic was rerouted around the impediment, thereby rees-tablishing flow.)
Sept.17-SC EX Exh. 87 at 765731 ("The over-all response to traffic impediment was good".)
Oct.1-SC EX Exh. 87 at 765734 ("The han-dling of the traffic impediments in the EOC was done very well . . . There was good coordi-nation among all groups . . .." There is no mention of the Traffic Engineer not following his procedures.)
Dec.10-SC EX Exh. 96 at Att. 9, p. 4 (Proce-dures were followed. The Traffic Group tried to verify the road blockages. The EOC did in-vestigate rerouting and the fire's effects on evacuation time estimates.)
780 Refuted by record See L.F. 413-17 (Interveners did not specify which ENC activities purportedly demon-
{
strated a f ailure to follow procedures. Their ENC related training allegations boil down to !
their disagreement with the priority placed on notifying the public first via EBS messages.
Any problems in transmitting information to j media and rumor control were attributable to malfunctioning copy machines, not training.)
781,n.528 Not supported by cita- See L.F. 425; FEMA EX Exh.1 at 33, 40; Tr.
tion; refuted by record 5574 (Daverio) (The misplaced decimal point was corrected in 5 minutes. The extrapolated dose data was a one time mistake. These are i not training problems. Consequently, FEMA's I recommendations are related to the review and l revision of existing procedures to ensure con- l sistent reporting of data and coordination with l DOE. LILCO and DOE have agreed to report ;
distance in miles in the future.)
l
-178-Intervenor Proposed
. Findint - LILCO Response Explanation 782 Out of context Tr. 5541-42 (Daverio) (Mr. Daverio did not con-cede that LERO consistently f ailed to use mes-sage forms, he simply said that he would be surprised if there were not occasions during:
the Exercise when message forms were not
, used.)
783 _ Refuted by record; out- FEMA EX Exh.1 at 64,67 (The FEMA Report side the scope of the did not state or imply that " Traffic Guides 4 contentions were uninformed about important information required for Plan implementation." Indeed, j under OPIP 3.6.3, Traffic Guides are not re- !
quired to provide information to evacuees; public information comes from redistributed materials, including the brochure, and broad-cast EBS messages.) See L.F. 425 (Most Traffic Guides questioned understood the chain of command for excess exposure.) CLI-86-11,23 NRC at 581 (Unless fundamental flaw is estab-lished, this Board has no jurisdiction to review the training methodology approved in the PID.)
783,n.530 Out of context LILCO Test. Cont. EX 50, ff. Tr. 4368, at 73-74; Tr. 5836-37 (Daverio), 5735, 5856 (Behr);
SC EX Exh. 96 at Att. 7, p. 6 (June was the first drill for Shitt 2 in many months and some people were new to LERO. Training program changes, as a result of Exercise Deficiencies and ARCA's, were not completely incorporated '
into program prior to the December 1986 training drills; in particular, the new LERO Identification Badges with the dosimetry infor-mation on them were not used prior to the December 2 drill.)
j 784 Refuted by record See L.F. 425 (Again, Interveners have singled )
out isolated cases of workers not remembering !
detailed information. Most emergeiicy workers 1 questioned understood the chain of command for excess exposure.)
785 Refuted by record See L.F. 423-26 (Interveners' citations show no pattern of pervasive failures. During an 11 hour1.273148e-4 days <br />0.00306 hours <br />1.818783e-5 weeks <br />4.1855e-6 months <br /> period, over 1000 LERO personnel mounted an emergency response in accordance with the LILCO Plan, including notification, !
mobilization, activation, accident assessment, 1 decisionmaking, protective action implementa-tion and public notification /information.)
l
-179-I Intervenor:
Proposed Finding LILCO Response Explanation 788 No citation See L.F. 448; LILCO Test. Cont. EX 50, ff. Tr.
4368, at 62 (Dosimetry and related areas are generally a problem at FEMA exercises be-cause people find it hard to remember detailed information that they hardly ever use.)
! 789 Out of context; refuted Bus Drivers demonstrated a knowledge of per-by record sonnel dosimetry in the Exercise. See L.F.
447-48 (Interveners try to create a general rule from isolated cases. However, as can be seen from the FEMA Report, most personnel under-stood dosimetry.)
789,n.531 Out of context; refuted FEMA EX Exh. I at 59 ("Most of the personnel by record demonstrated proper procedures for use of '
DRDs. One Bus Driver, however, neglected to read his DRD . . .."); FEM A EX Exh. I at 68
("Most of the emergency workers evaluated including six (6) Bus Drivers . . . demonstrated knowledge of use of dosimetry and actions re-l quired in response to certain readings as called l
for in OPIP 3.9.1); FEMA EX Exh.1 at 76 ("One of the two drivers for general population evac-uation bus routes read his DRDs every 15 mins, as required (OPIP 3.9.1), knew dose authoriza-tion limits, and appeared very well trained";
" Bus Drivers . . . were told to ingest KI prior to entering the EPZ. One Bus Driver followed instructions . . .. The other Bus Driver simu-lated the ingestion of his KI table prematurely . . ..")
789,n.532 Out of context; refuted Route Alert Drivers demonstrated knowledge by record of personnel dosimetry. See OPIP 3.3.4, at Att.
1, p. 2 of 2 (This is a case were the FEMA ob-server was not completely f amiliar with proce-dures; the emergency worker was correct.
" Listen to WALK on your radio [EBS Station].
If you hear a General Emergency has been de-clared, swallow your KI tablet.")
789,n.533 Out of context; refuted Traffic Guides demonstrated knowledge of per-by record sonnel dosimetry. S_ee e Response to I.F. 789; Tr.
5612 (Daverio)(only 3 Traffic Guides out of 15 did not know the chain of command for excess exposure); FEMA EX Exh.1 at 69 ("Most of the emergency workers evaluated were aware of the chain of command for authorization of ex-posure in excess of general public PAG's . . ..
-180-i.
i' Intervenor f Proposed Findinr_ LILCO Response Explanation However, Traffic Guides at two (2) TCP's did not fully understand. . .."); FEMA EX Exh. I at 76 ("At the eight (8) TCP's observed . . . each Traffic Guide was aware of the requirement to read the DRDS every 15 minutes. . . 2 of the 8 . . . did not fully understand the difference between low-range and mid-range DRDs.)
789 n.534 0 Out of context FEMA EX Exh.1 at 69; Tr. 5584 (Daverio)(In-formation provided was not inappropriate:
FEMA noted that the Bus Dispatcher should have been more precise. He was reminding people, as they lef t, what they had been told in their briefings.)
790 Refuted by record See Response to I.F. 752, n. 512, 754, 756; L.F. l 162,168,176,181, 442-45; Tr. 5680 (Daverio);
Plan at 5.1-6, 5.1-7; LILCO Test. Cont. EX 50, ff. Tr. 4368, at 53 (FEMA evaluated a substan-tial number, approximately 50, of field workers on dosimetry and exposure control. They con-cluded that most were knowledgeable. Train-ing has been provided to support organizations relied on to implement the Plan.)
790, n. 535 Out of context; refuted Tr. 5698 (Daverio); FEMA EX Exh. I at Table i by record 3.6 (Only two of the 14 cross-referenced ARCA's, PSA-ARCA's 14 and 16, relate to LERO workers' lack of understanding of how to use dosimetry equipment and procedures.)
LILCO Test. Cont. EX 50, ff. Tr. 4368, at 63, Att. B (All Interveners' cross-references are addressed in Attachment B.)
l 791 Unjustified inference See L.F. 446-48; s_ee also N.F. 463-64 (Whether ,
personnel dosimetry training affects the public health and safety is directly related to whether !
a problem with that training could constitute a l fundamental flaw that would preclude a finding of reasonable assurance.)
791,n.536 Unjustified inference (This is an apples and oranges comparison. A Traffic Guide's ability to f acilitate traffic flow out of the EPZ is not at all related to his reading of his DRD every 15 minutes.)
1
-181-i
'Intervenor Fi @ Explanation l Findinr LILCO Response 792 Refuted by record; not See Response to I.F. 60, 710, n. 484; L.F.448 supported by citation;. (Interveners' statement that "there were more evidence used beyond dosimetry-related problems at Shoreham than scope of admission at virtually any other Region II exercise" is without basis. The Post-Exercise Assessments were admitted for background only and they do not contain sufficient information to deter-mine the percentage f ailure particularly when no witness sponsored the conclusions.) Tr.
4537 (Lindell), 8535 (Kowieski) (LILCO's expert testimony that "the psychologicalliterature suggests that those are the kinds of f acts and procedures that would be difficult for people to remember unless they were trained virtually on a weekly basis" was unrefuted and was sup-ported by FEMA's experience.)
793- Refuted by record; not See Response to I.F. 789, n. 531, 792; Tr. 5735 supported by citation (Behr)(Changes to the training program, in particular, the new LERO Identification Badges, were not completed and incorporated until the December 1986 training drills, there-fore all citations to prior drills are not rele-vant to whether a dosimetry problem,if any, was fixed.)
l- 793,n.538 Refuted by record; not SC EX Exh. 89a at 3; SC EX Exh. 96 at Att. 8, supported by citation p. 8; SC EX Exh. 95 at 195, n. 72; SC EX Exh.
91f at 4; SC EX Exh. 96 at Att. 9, p.12. (Many of these citations are to raw observer com-ment data viewed from only one vantage point as opposed to the synthesized comments of drill reports. Many of these citations are equipment related or are not related to events which occurred during the Exercise.) SC EX Exh. 96 at Att. 9 (The December drills showed many examples of improvement in dosimetry.)
SC EX Exh. 93e at 6 (Traffic Guides at the December 10 drill read their dosimeters every 15 minutes and were aware of information on badges.) SC EX Exh. 96 at Att. 9, p. 40 (Field Controllers observing various locations in the f December 2 and 10 drills reported field workers reading their dosimeters every 15 minutes and aware of their usage and limits.)
-182-Intervenor Proposed Finding LILCO Response Explanation 794 Refuted by record See L.F. 442-48 (Problems related to personal dosimetry were individual f ailures which even collectively are not indicative of a fundamen-tal flaw.)
795 Outside the scope of the SC EX Exh. 95 (Test. Cont. EX 50), at 148-150; contentions; no citation LILCO Test. Cont. EX 50, ff. Tr. 4368, at Att.
A (There is no implication in this or any other contention or in the testimony submitted by any party that LERO personnel taking their jobs seriously is an issue to be addressed in these proceedings.)
796 Out of context; outside See L.F. 434; LILCO Test. Cont. EX 50, ff. Tr.
the scope of the con- 4368, at 53-54; Tr. 5611-12 (Daverio) (LILCO tentions; not supported admits to one minor failure to follow instruc-by citation tions. LILCO characterizes the two Traffic Guides out of 14 questioning the authority of the Lead Traffic Guide as a lack of understand-ing of the chain of command, not a f ailure to follow instructions of superiors.) LILCO Test.
Cont. EX 50, ff. Tr. 4368, at Att. A; SC EX Exh. 95 (Test. Cont. EX 50), at 149-50 (There is no example or mention of horseplay or f ailure of LERO personnel to take their jobs seriously in the Contention or at this citation. Indeed, l Interveners admit that they "cannot con-clude . . . LILCO training program has been unsuccessfulin training LERO personnel to fol-low directions given by superiors.")
798 Refuted by record LILCO Test. Cont. EX 50, f f. Tr. 4368, at 51-54, Att. B (Contentions EX 41,42, and 45 i and all other cross-references are addressed in Attachment B. Over 1000 personnel were mo- i bilized and thousands of directives were issued; l LERO could not have operated as it did unless '
the vast majority of its personnel followed the directives of their superiors.)
1 799 Not supported by cita- LILCO Test. Cont. EX 50, f f. Tr. 4368, at Att. )
tion; unjustified infer- A, p. 3; FEMA EX Exh.1 at 61-64 (These cita- 1 ence tions are not relevant to the issue raised by )
this contention; that issue is whether personnel 1 followed the directives of their superiors, not whether supervisory personnel could have per-formed better.)
I l
-183-IntGrvenor Proposed ,
Findinst LILCO Response Explanation )
799,n.539 Not supported by cita- See Response to LF. 799; FEMA EX Exh.1 at tion; unjustified infer- 61-64 (The FEMA observer simply notes that {
ence the Bus Driver did not know the relation of I wind direction to degrees. FEMA EX Exh.1 at i 66 simply notes that the Transfer Point l Coordinator failed to recognize a mistake made by a bus driver.) FEMA EX Exh. I at ,
68-69 (FEMA noted that the Bus Dispatcher !
made repeated announcements that were imprecise.) FEMA EX Exh. I at 40 (FEMA noted that the Health Services Coordinator l gave accurate briefings but that on one occa- l sion he misstated a PAG, which he correctly stated later.)
800 Outside the scope of the FEMA EX Exh. I at 56; LILCO Test. Cont.
contentions; out of con- EX 50, ff Tr. 4368, at 52 (LILCO's analysis was text; not supported by supported by the FEMA Report. If personnel citation under the control of the Staging Area Coordinator reportedly f ailed to follow his di-rections, FEMA would not have concluded that he was clearly in charge and that the dispatch and direction of field workers was well orga-nized.) See L.F. 434; SC EX Exh. 95 (Test. ;
Cont. EX 50), at 149; Tr. 5594 (Weismantle) (In-tervenors' few examples which, with one ex-l ception, are drawn from drill reports, not the l Exercise, do not support their position. The g examples consist solely of what Interveners consider to be inappropriate time frames or examples of new LERO personnel being walked through their jobs in a training drill. For ex-ample, directions were followed but perhaps inappropriate priority was placed on the dis-patch of the Route Spotter.)
801 Refuted by record See L.F. 434; Tr. 5592 (Daverio) (These briefings are not given by the workers'superi-ors. These were isolated f ailures to follow j dosimetry procedures, not f ailures to follow I the direction of ruperiors.)
a 802 Unjustified inferenco See Response to I.F. 706-09; Tr. 4544 (Frye) )
(Interveners' speculation that more problems l may have occurred is not the basis for a find- l ing. Interveners bear the burden of proving l that there was a fundamental flaw. If one Ex- i ercise event can be extrapolated into a funda-mental flaw perfect performance would i
-184-Intervenor Proposed Findinst LILCO Response Explanation essentially be required, but the Board rejected perfect performance as an inappropriate crite-rion.)
803 Unjustified inference See Response to I.F. 800; L.F. 434; Tr. 5594 (Weismantle)(Direction of superiors was fol-lowed; perhaps the priority placed on the re-quest for the Route Spotter was inappropriate.)
803,n.540 Unjustified inference; Tr. 5752 (Behr)(The Patchogue Staging Area out of context did not participate in this training drill, and the Communicator did not realize he was sup-posed to simulate his communications. This was a drill control problem, not a training >
problem.)
804 Unjustified inference See Response to I.F. 800: Tr. 5606-07 (Weismantle)(The direction of superiors was followed and the time frame was proper, given the events at that time.)
804,n.541 Unjustified inference See Response to I.F. 796; FEMA EX Exh.1 at 70 (Indicating that one might question someone else's authority is not evidence of not following instructions.)
805, Outside the scope of the See Response to I.F. 795; SC EX Exh. 95 (Test.
805,n.542 contentions Cont. EX 50), at 148-150; LILCO Test. Cont.
EX 50, ff. Tr. 4368, at Att. A; Tr. 6742-44 (Cosgrove) (The issue of LERO personnel taking their jobs seriously is not addressed in any con-tention or in the direct testimony of any party. ;
Out of thousands of pages of documentation, Interveners could cite but six individual in-stances of horseplay during training drills; not one related to the Exercise.) !
808 Refuted by record See L.F. 427-33 (Thousands of communications were made over the 11 hour1.273148e-4 days <br />0.00306 hours <br />1.818783e-5 weeks <br />4.1855e-6 months <br /> period of the Ex-ercise. Interveners' citations refer to sporadic j examples of individual f ailures, many of which i are equipment or procedure problems.)
l 810 No citation; refuted by See L.F. 427-33 (There is no support for the )
record statement that communications " frequently were performed incorrectly," that FEMA iden-tified problems with each type of communica- l tion cited by LILCO or that similar problems j
, have occurred in drills since the Exercise.) l 1
l l .
I
-185-Intervenor 1 Proposed Finding LILCO Response Explanation j
I l
810,n.543 Out of context; refuted First, Interveners' claim that "during the Exer- I by record; not supported cise [there] was a consistent inability of by citation LERO personnel to accurately communi-cate . . . or to do so in a time!y manner" is not ,
supported by the citations. See L.F. 428, I 430-32; FEMA EX Exh.1 at 29-31 (LERO con-tacted the FAA, and the failure to contact the LIRR was a procedural problem. The dose as- ;
sessment status board separation of data was an equipment problem. Otherwise the FEMA Report was laudatory: " Clear, concise, accurate briefings were conducted"; status boards were " outstanding" and ellectively uti-lized; all coordinators kept logs and used mes-sage forms; news releases and EBS messages were coordinated with the County Public Af-fairs Office representative (simulator) priar to simulated release.) See L.F. 409-12, 428; FEMA EX Exh. I at 29-31, 36-37, 39-42, 65 (All of these references are to communications concerning the traffic impediments. Generally the problems were due to the Evacuation Route Coordinator's individual failure to com-municate impediment information to his co-workers and superiors.) See L.F. 409-12, 425, n.111, 428-29; FEMA EX Exh. I at 67-69 (The three alleged communications problems refer-enced in these pages and addressed by Interve-nors' testimony are the impediments, Ridge El-ementary School, and the Traffic Guides communicating with motorists. Other than the impediments, which show a communication f ailure by an individual, these examples do not demonstrate a failure to communicate.) See L.F. 453; s_e_e also N.F. 486 (Training drill re-ports cannot be relied on to establish a funda-mental flaw. Unless a fundamental flaw was established by Exercise events, the training drill reports are not relevant. Moreover, many ,
of the citations to the drill reports are inaccu- !
ra te.)
June 6-10 C.F.R. Part 50, App. E. V.D.3; se_e _
L.F. 224 (There is no regulatory requirement for sounding sirens within a certain time frame at the Alert classification, nor was this an early dismissal of schools problem; there is no regulatory requirement for issuance of an EBS message for a road impediment.) Tr. 5738 i
L___.____________
-186-i l Intervenor l
Proposed Finding LILCO Response Explanation (Daverio); LILCO EX Exh.11 (Only one of six EBS messages missed the 15 min. deadline.) Tr.
l 5762-64 (Behr)(Dispatching Traffic Guides ac-tually took 25 minutes as measured from EBS message issuance.)
Sept.10-SC EX Exh. 89.e at 4 ("At 10:03 an.
announcement was posted on the basis of a 9:55 notification that at 9:35 a Site Area Emer-gency was declared"1.e., it took only 8 minutes for the announcement to be made from the time LERO was notified.) Tr. 5773-74 (Behr)
(Traffic Guides met their goal of arriving at their posts within one hour of broadcast of the EBS message.)
Dec. 2 and 10-Tr. 5793-94 (Behr); SC EX Exh.
96 at Att. 9, p. 20 (The EOC was handling four traffic impediments which overlapped each other; citations do not support poor field com-munication, there were some minor equipment problems that were solved by field personnel.)
Second, Interveners' claim that LERO has
" consistently failed to use status boards cor-rectly"is not supported by the citations. The one citation from the Exercise, FEMA EX Exh.
I at 72, stated that the " status board was up-dated periodically" and that the only problem was that the time of posting new information was "not always included." The training drill reports do not support Interveners' claim and are not relevant for a finding of fundamental flaw. SC EX Exh. 92 e at 4; SC EX Exh. 96 at Att. 9, p. 4 (not a status board problem).
Third, Interveners' claim that " status updates aetween the EOC and the Staging Areas" were problematic is without support in the Exercise.
The citations for the drill reports are also not
- supportive. SC EX Exh. 91 b at 3
- SC EX Exh.
l 96 at Att. 9, pp.15,16 (There is no discussion i of EOC/SA communications problems at these cites.)
Finally, Interveners' claim that briefings were inadequate is not supported by its citations.
FEMA EX Exh.1 at 33,40 (this was a simple misstatement of a PAG by the Health Services
-187- l l
Intervenor Proposed Finding LILCO Response Explanation Coordinator which he later stated correctly);
FEMA EX Exh.1 at 68-69 (this was a lack of precision in reminder announcements on the part of the Bus Dispatcher); FEMA EX Exh.1 at 28, 41 (overcrowded rooms are a f acility problem, not a training problem); FEMA EX Exh. I at 29, 41-42, 62, 63-64, 72, 73 (duplica-tion of briefings shows communication, not a lack of it); SC EX Exh. 96 at Att. 9, p. 45; s_e_e L.F. 343-45 (the ENC is an onsite f acility and its delayed activation was due to LILCO (onsite) not being pre-staged whereas LERO was. NUREG-0654 supports joint press briefings.)
811, Refuted by record See L.F. 427-33; LILCO Test. Cont. EX 50, ff.
811,n.544 Tr. 4368, at 45-51, Att. B; Tr. 5541-91 (Behr, Daverio) (All contentions cross-referenced in Cont. EX 50.C have been addressed either within the text, or in Attachment B.)
812,n.545 Refuted by record See L.F. 428-32; s_ee e also LILCO Test. Cont. EX 50, ff. Tr. 4368, at 45-51, Att. B (These exam-ples do not demonstrate a pattern of communi-cation problems.)
813 Ref uted by record; no LILCO Test. Cont. EX 50, ff. Tr. 4368, at citation 45-51, Att. B; see L.F. 428 (Interveners mis-state LILCO's testimony which says the com-munications problems with the Evacuation Route Coordinator "and other communications glitches referenced in Contention 45.A and dis-cussed in LILCO's testimony on Contention EX 41" were considered by LILCO's witnesses.
There is no support for the allegation of simi-lar problems occurring during training drills.)
815,n.546 Refuted by record See L.F. 223, 411; LILCO Test. Cont. EX 50, ff.
Tr. 4368, at 37-38; Tr. 8220-21 (Baldwin),
8237-38 (Kowieski), 8265-67 (Baldwin, Keller, Kowieski)(The manner in which FEMA input the message affected LERO's response to the road impediments.)
816 Refuted by record See L.F. 221-25, 411; Tr. 5548-50 (Weismantle)
(First, LILCO disagreed that the impediment was a Deficiency. Second, while the Evacua-
, tion Route Coordinator's actions in verifying I the impediment were not per se incorrect, he l
-188--
Intervenor Fmp ,1 Finrfint LILCO Response Explanation could have responded better and contributed to ,
the delay. However, the delay is not all attrib-utable to the Evacuation Route Coordinator.
FEMA's simulation hampered LERO's efforts to identify and send equipment to respond to the impediments.)
817 Out of context LILCO Test. Cont. EX 50, ff. Tr. 4368, at 46; Tr. 5546-52 (Weismantle)("Most of them (the communications problems] stem from this one individual's lack of communication, both up the line and laterally, of the impediments in a timely manner".)
817,n.547 Not supported by cita- See L.F. 209-10, 221-25, 428; LILCO Test.
j tion Cont. EX 50, ff. Tr. 4368, at 46 (The failure to include information on message forms was also attributable to the Evacuation Route Coordina-tor. The Bus Dispatcher did report to the Transportation Support Coordinator that a vi-sual check of the fuel truck had revealed no problem. Af ter trying to raise the Route Spot-ter on the radio, the Evacuation Support Com-municator followed-up by calling the Staging Area to check on the Route Spotter; once the Staging Area verified dispatch, the Communi-l cator then radioed the Route Spotter to ensure verification of the impediment.)
l 818 Out of context See Response to I.F. 810; SC EX Exh. 96 at 818,n.548 Atts. 7, 8, 9; Tr. 5791-809 (Behr) (Communica-tions problems were varied. Some were similar in nature to those experienced in the Exercise, some were not. Many different types of road impediments were simulated, which sometimes numbered four in one training drill, i.e., duck truck, cesspool truck, brush fire, and cement mixer.) S_ee also LILCO Test. Cont. EX 50, ff.
Tr. 4368, at 68-72. (Through the course of the training drills LERO's response to road impedi-ments has improved considerably.)
820 Unjustified inference LILCO Test. Cont. EX 50, ff. Tr. 4368, at 46-50 (Only the 20 minute time frame relates to the timeliness of communications. The 33 minutes the Special Populations Bus Dispatcher took to dispatch the bus was not excessive considering '
he was concurrently handling the dispatch of approximately 44 vehicles. LERO's capability
I
-189-Intervenor Proposed Findinr LILCO Response Ea htion to dispatch all its buses was demonstrated; all Bus Drivers were dispatched in either cars or buses.)
821 Refuted by record; not See L.F. 429; LILCO Test. Cont. EX 50, ff. Tr.
supported by citation 4368, at 47, Att. G; see also N.F. 471 (There is no evidence that the inquiry from the Public Schools Coordinator was ignored. Since there was no way for reception center personnel to identify the school bus due to the way it was -
simulated, they simply did not have an event to
- report.)
~ 822 Refuted by record; un- See L.F. 429 (Reception Center personnel were justified inference not informed to look for a simulated bus with school children until af ter the bus had arrived.
Thus, whether or not LERO personnel checked for the school bus by questioning each driver, they would not have located the bus because it had already been through the Reception Cen -
ter. FEMA was not concerned about this delay in confirmation and had not set up the simula-tion to check verification of arrival.)
822,n.550 Refuted by record Tr. 5565-70 (Daverio) (Had the Reception Cen-ter been requested to verify the bus's arrival prior to its arrival, dozens of school buses ar-riving at the Reception Center would not pose a problem, especially since most would arrive prior to the general public.)
822,n.551 No citation; refuted by See L.F. 429; _see_ also N.F. 471 (First, there record were no communications from the bus driver that there was a problem. Second, EOC per-sonnel did contact the Reception Center at 15:09,16:11, and 16:23 to inquire about the Ridge school bus. The Exercise terminated at 16:30 shortly af ter EOC personnel were in-formed that the bus's arrival could not be con-firmed; the termination of the Exercise fore-closed any further inquiry.)
823 Refuted by record See L.F. 430; N.F. 472 (LERO did attempt to contact the FAA. LIRR was not required to be called in the Procedures; this is a procedure problem, which has been addressed and accep -
ed by FEMA. Neither incident is a training problem.)
l l
-190-
.Intervenor FW LILCO Response Explanation Finrnna 825 Unjustified inference See L.F. 425, n.109; FEMA EX Exh.1 at 40 (tiiese problems are, as FEMA reported, equip- I ment related " enlarge the dose assessment )
status board . . . " - and procedure related -
"LERO reporting procedures should be re-viewed to ensure proper coordination and proper reporting"); Tr. 5574 (Daverio) (LILCO and DOE have coordinated their procedures so l that they will use consistent units (miles) in the future, thereby eliminating the need for J conversion and possible error.) {
826 Unjustifed inference; SC EX Exh. 95 (Test. Cont. EX 50), at 131-32; not supported by cita- FEMA EX Exh.1 at 29-31 (There is no support tion for the statement that the Director was -
" delayed . . . In acting upon information" or.
that because there were no status boards in the EOC command room that " updated information was not communicated to LERO workers in a timely manner." Key event status boards were located throughout the EOC in various iunc-tional areas and were timely updated.)
827 Out of context Seg L.F. 430, n.114, 431 (Interveners list but two problems, both of which are addressed in LILCO's Proposed Findings. With respect to the secretary, procedures need not be changed in order to stress in training the importance of prompt delivery of messages.)
827,n.552 Refuted by record LILCO Test. Cont. EX 50, ff. Tr. 4368, at 32-33, Att. B (LILCO's testimony addresses all the problems cited in the contentions.)
828 Out of context See L.F. 413-19; Tr. 5655-64 (Daverio) (Rumor controlis an onsite function and part of the onsite training program; it does not reflect on LERO training. LERO problems in the public information area were related to equipment problems with the copying machines.)
830 Unjustified inference S_ee Response to I.F. 810, n. 543; L.F. 425, n.
110; LILCO Test. Cont. EX 50, ff. Tr. 4368, at 49; Tr. 5579-80 (Daverio); FEMA EX Exh.1 at 29,55,61,72-73 (The impilcation that this was a serious failure is unwarranted. The failure to record information properly on status boards concerned sporadic f ailure to update the time of posting information on the status board at
-191-l Intervenor Proposed Findlar LILCO Response Explanation Riverhead; no problem was noted with respect to similar boards at the EOC, Port Jefferson, or Patchogue.)
\-
830, n. 553 Outside the scope of the See L.F. 453; see a'so N.F. 486 (Training drill
. contentions reports cannot be relied on to establish a fun-damental flaw that was not established by Ex-ercise events; the training drill reports and the underlying observer comments relied on here are not relevant.)
831, Out of context See L.F. 432; Tr. 5587-90 (Behr) (Interveners' 831,n.554 suggestion that communications from the SCPD (simulated) and the County Executive (simulated) should be " rejected as unreliable" strains credulity. Different EOC personnel were being told by some County simulators that County resources would be available to as-sist LERO and by others that it would not.
This went on for roughly half the time (45 i mins.) that this confusion existed. The confu-l sion was resolved prior to it becoming a prob-l lem.)
832 Refuted by record See L.F. 427-33; LILCO Test. Cont. EX 50, ff.
Tr. 4368, at 43-51; Tr. 7633 (Kowieski) (Alleged communications problems were due to equip-ment, procedure and individual training prob-lems. The training problems neither individu-ally nor collectively indicate a fundamental l flaw in the LERO Training Program. Thou-sands of communications occurred during an 11 hour1.273148e-4 days <br />0.00306 hours <br />1.818783e-5 weeks <br />4.1855e-6 months <br /> period, the majority of which had to be effective in order for LERO to mount the ex-tensive emergency response which occurred during the Exercise - an Exercise which was equal or greater in scope than any other Exer-cise conducted in the States of New York and l.
New Jersey.) CLI-86-11,23 NRC at 581; L.F.
453 (Alleged communications problems since the Exercise are not relevant absent a finding of fundamental flaw based on Exercise events.
l If a fundamental flaw is established, post-
'L Exercise events are relevant only to show whether the flaw has been corrected or is readily correctable.)
l
l
-192-Intervenor Proposed Finding LILCO Response Explanation
-836 Refuted by record;'not See L.F. 329-32,439-41; N.F. 433-34; SC EX supported by citation Exh. 95,167-85 (Problems experienced at the ENC were attributable to malfunctioning copy-ing machines. No evidence of post-Exercise drill problems with ENC operations has been cited.)
837 Refuted by record See L.F. 341-51,416 (FEMA and LILCO testi-fled that the ENC was activated in a timely f ashion and in accordance with procedures, that the first press briefing was timely, and that there were other avenues of information to the media prior to ENC activation. In their opinion, the media would seek multiple sources of information regardless of how soon the ENC was activated.)
838 Refuted by record See L.F. 334-39, 352-60, 363-66, 413-16; Tr.
6693-94 (Rowan) 6699; (Evans); FEMA EX Exh.
1 at 53 (The training program follows LILCO's approach to media relations, which is that the first priority is to notify the public through the EBS system. The actions of LERO ENC per- !
sonnel reflect that approach. In contrast, In- l tervenors consider ordinary electronic media j to be of primary importance; Interveners ad- I mitted that grievances with media training are directly attributable to this difference in ap-proach. Interveners' basic grievance with the LERO news releases was that they were not distributed soon af ter the EBS message was is-sued. LILCO argued that the media would have gotten the necessary infctmation from EBS.
The delay in distributing hard copy news re-leases was primarily due to the copy machine breakdown, not poor training. Press confer-ence performance was alleged to be deficient on four counts (Contentions EX 38.E, H, I, J, M, and N.) The first, insufficient maps and dis-plays,is equipment, not training related. The second, waiting to notify the media of a full evacuation, would not have affected either the media's or the public's access to that informa- i tion because it was given in the EBS message, i though it was probably preferable for the spokesperson to be available to answer ques-tions immediately af ter the EBS announce- i ment. Third, since the public does not receive l
KI, LERO believed it irrelevant to the public. I 1
l
l L
-193-l Interrenor~
Peeposed Findim __ LILCO Response Explanation '
L L Fourth, Interveners charged that LERO ENC personnel were unable to answer questions, i
misstated facts, and provided inaccurate infor-mation. FEMA found that the seven press con-ferences held "provided requested information and answered questions presented by media representatives". ~ Videotapes of the confer-l ences showed that the LERO spokesperson an-swered numerous questions.)
839 Refuted by record See Response to I.F. 838; L.F. 334-39,363-66, 370-76,413-16 (The actions of LERO ENC per-sonr.el generally reflect LILCO's approach to media relations. Assuming that approach, Ex-ercise events showed that LERO's training pro-gram effectively prepared personnel to deal with the media, provide information, and re-spond to questions knowledgeably.)
840 Refuted by record See Response to I.F. 838-39 (The training of ENC personnel reflects LILCO's approach to media relations; in LILCO's view providing in-formation to the affected public, not the-media,is of primary concern.) LILCO Test.
Cont. EX 50, ff. Tr. 4368, at 66-67; Tr. 6603 (Evans),6764-65 (Streeter)(Drills are con-ducted to simulate as closely as possible an emergency situation and are carried out Ln situ-in response to information presented in the ,
same form and manner it would be in an emer-gency. Interveners' testimony that there is in-adequate learning by doing training in the LERO program is unreliable; not one had wit-nessed a drill and only one, Insp. Cosgrove, had been present at the Exercise. Indeed, Mr.
Evans admitted that he didn't know whether drills included simulated role play.)
841 Refuted by record See Response to I.F. 838-40.
842 Refuted by record See Response to I.F. 837-39; L.F. 355-56; Tr.
3471 (Robinson) (LERO personnel did seek al-L ternate means to solve the copier problem; un-fortunately those eiforts were unsuccessful.
Interveners' suggestion that reading of EBS I messages would have remedied the copier i problem does not take account of the fact that -
the media would have already heard the EBS ,
broadcast.)
l 1
-194-Intervenor Favp J Finrtina LILCO Response Rrnianation 843 . Refuted by record . See Response to I.F. 836-42; L.F. 413-17; Tr.
6699 (Evans), 6705 (Rowan)- (Nowhere in the record do Interveners identify the procedures or Plan provisions LERO ENC personnel alleg-edly failed to follow. Nor could they, when questioned, cite examples of such alleged fall-ures.) See L.F. 334-40; Tr. 5652 (Daverio) (In-tervenors' implication that LILCO considers providing information to the media to be unimportant was refuted by Mr. Daverio and by LILCO's ENC witnesses. .Rather LILCO be-lieves that the media role in an emergency is secondary to the need to provide information '
to the affected public via EBS.)
843,n.556 Reluted by record FEMA EX Exh. I at 33-34, 38, 52-53 (EOC Ob-jectives 13,14,15 and 21 were either met or partly met. ENC Objectives 1,3,4 and 7 were either adequately demonstrated or partly dem-l onstrated; they were not failed.)
1 844 Not supported by cita- SC EX Exh. 95 at 26-32 (There is no mention tion that only when personnel are capable of per-forming routine tasks out of habit can they possibly respond to unanticipated events.)
845 Refuted by record See L.F. 420-22 (Most events during the Exer-l cise were unanticipated and unrehearsed and
}- LERO responded effectively.)
845,n.557 Relitigation of planning PID at 652-54; _see Response to I.F. 772; Tr.
l Issues; no citation 5039-40 (Lindell), 6384-89 (Perrow) (The signif-i icant events in a radiological emergency are anticipated and planned for under the NRC and FEMA regulatory framework that is incorpo-rated in the LILCO Plan. Thus, the Plan antic-ipates problems. The training program is guided by the Plan.)
846 Refuted by record See Response to I.F. 772; Tr. 5039-40 (Lindell),
6384-89 (Perrow) (LILCO's and Interveners' witnesses agreed that the significant events are anticipated and planned for and that the unanticipated events about which Interveners are concerned are not critical to the re-sponses.)
-195--
Intervenor Trivp $
Finding IJLCO Rsurnanap Rirnieruation 847 Refuted by record; See Response to I.F. 845-46 (The critical ele-relitigation of planning ments of a response to a radiological emergen-
' issues cy at a nuclear power plant are anticipated and planned for in the LILCO Plan.) PID at 795-98 (Interveners' statement that a " failure to deal with unexpected road impediments could very well result in inappropriate pro-tective action reedmmendations because of in-correct ETEs"is an attempt to relltigate EP 3 Contention 65. The Board in the Plan proceed-ing found that probability of road blockage from accidents was very low and that ETEs are
" insensitive to a modest frequency of inci- ;
dents.") See L.F. 409-12, 420-22; LILCO Test. I Cont. EX 50, ff. Tr. 4368, at 34-40 (Interve- I nors' conclusion that " Exercise results revealed that the LILCO training program was ineffec-tive" was disputed by LILCO and by FEMA's generally positive evaluation of LERO's perfor-mance.) i 848 Refuted by record See L.F. 420-22; LILCO Test. Cont. EX 50, f f.
Tr. 4368, at 34-40,67-72; Tr. 5400 (Daverlo),
5477 (Weismantle) (Interveners had few exam- !
ples of what they considered unanticipated and unrehearsed events; they relied primarily on road impediments, Rumor Control and simulat-ed inquiries of Traffic Guides. In LILCO's l view, nearly everything that happened in the Exercise had an element of surprise and was, ;
therefore, unanticipated and unrehearsed.
Post-Exercise drills showed that LERO contin-ues to respond well to unanticipated and '.
unrehearsed events, in particular, to major road impediments.)
850 No citation; refuted by See Response to I.F. 845-48; L.F. 409-22; record LILCO Test. Cont. EX 50, ff. Tr. 4368, at 68-72; Tr. 5764-65 (Behr, Daverio) (LERO's re-sponses to the traffic impediments, ENC and Rumor Control inquiries, the major unanticipated events cited by Interveners, as well as its response to other unanticipated events during the Exercise, such as the Ridge School free play message, demonstrate that, generally, LERO training was effective in teaching people to respond to unanticipated and unrehearsed events. With respect to post-Exercise drills, the record demonstrates that
t,
-196-Intervenor Proposed .
Findlar LILCO Response Run3= nation the problems in responding to impediments were not repeated in later drills, and the copi-er problem that was the root cause of problems
. at the ENC was not repeated af ter the June 6 drill.)
851 Out of context; refuted Tr. 5476-77,5480-84 (Weismantle) (The Plan by record anticipates that an accident may happen and broad concepts are anticipated. There were many differences between the Exercise and pre-Exercise training drills during the two months prior to the Exercise). Tr. 5400-02 (Daverio)(Emergency planning, by its very na-ture, tries to anticipate probable events and provide an appropriate response within the -
Plan and Procedures. . A good set of procedures anticipate many of the actions required but that does not mean that unanticipated events do not occur. The specifics of what occurred on the day of the Exercise were all unantici-pated.) - Compare I.F. 851 with I.F. 856; see also Tr. 6568 (Cosgrove) (Interveners are at odds with themselves over the definition of '
their invented category " unanticipated and unrehearsed events." In Finding 851 they claim that the two simulated road impvalments were unanticipated and unrehearsed events, but re-ject that when it suits them in Finding 856 and say that "LILCO did train personnel to respond-to traffic impediments prior to the Exercise."
An event on which there has been training is, according to Interveners, rehearsed and antici-pated. Indeed, Interveners' witness Cosgrove stated that "if [he] could think of them, then they're anticipated". Interveners cannot have it both ways.)
852 Not supported by cita- LILCO Test. Cont. EX 50, ff. Tr. 4368, at tion; refuted by record 32-34, 35-36, Att. B (All cross-referenced con-tentions are addressed either in the text or in Attachment B to the testimony.)
853 No citation; refuted by See Response to I.F. 845, 847, 852; L.F. 420-22; record see LILCO Test. Cont. EX 50, ff. Tr. 4368, at 34-40, Att. B.
854,n.560 Refuted by record Tr. 5527 (Daverio), 5006 (Lindell), 8285 (Keller) -
(FEMA and LILCO agreed that the malfunctioning copier was not a training i
-197-Intervenor L Proposed
- j. Findhu LILCO Response Explanation
(
problem.) Tr. 3471-72 (Robinson)(ENC person-nel did take measures in an attempt to resolve the problem with the copying machines.)
856 Refuted by record; out PID at 795-98; Tr. 417,1084-87 (Lieberman) of context; relitigation (Intervernors' statement that "there is no rea-of planningissues son to conclude that LILCO's decision to limit its pre-Exercise training to simulated acci-dents which only partially blocked roadways somehow excuses the poor performance" implies that LERO training should have cov-ered major accidents. ' This is an oblique at- -
tempt to relitigate EP Contention 65 on traf-fic. LERO training was based on the predicted severity and frequency of accidents accopted in the PID and reconfirmed by Mr. Lieberman in this proceeding where he stated that due to traffic congestion and low speeds, the proba-bility of major accidents is very, very small and the effect of accidents on ETEs negligible.
Moreover, the f act that the same kind of im-pediments were " employed by FEMA at other exercises" does not make them realistic for Shoreham. The traffic model and Shoreham-specific data in this proceeding and the Plan Proceeding are the true reflection of the Shoreham case.) See Response to I.F. 818; L.F.
410-12 (In addition to the manner in which FEMA input the messages and the fact that there was no LERO training on major traffic impediments before the Exercise, LILCO ad-mitted that inadequacies in responding to the impediments were largely a result of the Evac-uation Route Coordinator's failure to communi-cate immediately information about the two impediments to his co-workers and superiors.)
Tr. 5482-84 (Weismantle) (The types of impedi-ments used prior to the Exercise were those which required no special attention, iA, traf-fic could just go around the impediment with no affect on evacuation time estimates; there-fore, past training had created a mind set where there was no need for immediate action to reroute traffic.)
857 Refuted by record; be- _Se_e L.F.16-19 (Interveners claim that " train-yond regulatory require- ing must insure that its ( LERO] personnel are ments able to respond to whatever situation they may confcont during a real Shoreham emergency"
-198-Intervenor Proposed l Finding LILCO Response Explanation implies that LERO must train for the worst case scenario. Emergency planning regulations do not require worst case scenario planning; what is required is that emergency plans take the necessary " prudent risk reduction mea-sures", PID at 653, quoting Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10,17 NRC 528, 533 (1983).) See_ L.F. 221-25, 410, 412 (LERO largely demonstrated its ability to respond to these types of roadway impediments.)
858 Refuted by record See L.F. 203-08,212-22, 410-12 (The problems observed in LERO's response to the two road impediments were largely a result of the Evac-uation Route Coordinator's f ailure to communi-cate information; this affected other aspects of the response. LERO's response to the two road impediments was appropriate once the Evacuation Coordinator became aware of the impediments.)
859 Refuted by record See Response to I.F. 858.
860 Refuted by record See Response to I.F. 779, n. 527; LILCO Test.
Cont. EX 50, ff. Tr. 4368, at 67-72; Tr. 5752-54 (Behr) (Suffolk County incorrectly " presumes" that extensive remedial training occurred prior to the training drills. Remedial training con-sisted of a table-top,in which LERO personnel were instructed about how to handle impedi-ments and they talked through a hypothetical impediment scenario. The hands-on or learning-by-doing portion of the training occurred in the drills themselves. In each drill series a new shif t was trained on impediments.
Nevertheless, LERO showed continuous im-provement in its response to severe road im-pediments.)
860,n.561 Refuted by record S_e_e Response to I.F. 818, 860; Tr. 5790-91 (Behr); s_e_e also N.F. 489 (The record demon-strates that performance on impediments im-proved during the post-Exercise training drills and that the problems experienced in the Exel-cise with communication in the EOC did not recur. Interveners charge that the traffic im-pediments used in post-Exercise drills were identical to the ones used in the Exercises and
-199-i Intervenor '
Pmposed Finding LILCO Response Explanation _
attempt to obfuscate the realissue. First,in post-Exercisc drills the types of vehicles and their locations change; in addition, a brush fire was also used as an impediment. More impor-tantly, the particular cause of the impediment is not significant. What is significant is the ability of LERO personnel to locate the imped-iment and develop a response.)
l 861 Refuted by record S_e_e L.F. 389-95, 418, 420-22; FEMA EX Exh. 5 at 50-54; Tr. 7908 (Kowelski) (Rumor Control is an onsite function and not part of the LERO training program. Therefore,it cannot reflect on LERO training. Moreover, the Rumor Con-trol System functioned well and appropriate responses were given within a reasonable time ,
frame. FEMA testified that there were no training problems with Rumor Control.)
862 Refuted by record See L.F. 389-95,418 (Rumor Control is trained -
/
by the onsite Emergency Preparedness organi- ,
zation; therefore the performance of Rumor Control does not reflect on LERO training. In addition, the Rumor Control System functioned ]
well and appropriate responses were given in a reasonable time frame, except for a few in-stances in which responses were out-of-date because of malfunctioning of copying ma--
chines.)
863 Refuted by record See Response to I.F. 862; LILCO Test. on Cont.
EX 38 and 39, ff. Tr.3207, at 64; Tr. 3471 (Rob-inson)(Contrary to Interveners' assertion, ,
LERO, personnel did seek alternate means to obtain update (information when the copy ma-chines malfunctioned.) Tr. 3654-55 (McCaffrey), 3758-59 (Daverio) (Mr. Daverio agreed that the Rumor Control Staff should have been able to immediately answer the in-quiry concerning whether the plant could blow up; however, the inquiry about the Arab ter-rorists was not immediately answerable.) _
864 Refuted by record S_ee Response to I.F. 846-47, 860-63 (Interve-nors agreed with LILCO that the unanticipated and unrehearsed events cited in this finding are not " critical" to an effective response to an emergency to a nuclear power plant.)
m----i- -i- eem
P l
-200-Intervonor Proposed
- Finding LILCO Rc4[2'13se Explanation 864,n.563 Refuted by record See L.F.198,224,239 (FEMA found no fault _in LERO's protective action decisionmaking.
Protective action decisions were made prior to the occurrence of the road impediment, and the protective action recommendation to evacuate would not change as a result of the impediments. While the broadcast of the EBS message was slow, broadcast of an EBS mes-sage was helpful but was not required by the circumstances; evacuees would have been di-rected by Traffic Guides and cones to alternate routes long before the EBS message went out.)
865 Refuted by record; not S_ee L.F. 420-22; LILCO Text. Cont. EX 50, ff.
supported by citation Tr. 4368, at 34-39; Tr. 5399-402,5476-77 (Daverio, Weismantle) (Interveners purpose-fully mischaracterize the LERO training pro-gram as consisting "primarily of classroom ses-sions and routine drills." Classroom sessions are an important part of the training program but not its primary focus. Equally important are training drills and exercises which are not routine. The training drill and exercise scenar-los present LERO workers with a myriad of unanticipated and unrehearsed event:3. The statement that LERO training is "unlike other training programs for emergency response per-sonnel" is not supported by the citations, which merely describe other training programs, that, like the LERO program, use role playing and r ,
simulated emergency situations to train per-sonnel.)
988 Out of context S_ee L.F. 436-37; LILCO Text. Cont. EX 50, ff.
Tr. 4368, at 54-55; Tr. 8272-74 (Keller) (LILCO did not disagree that good or independent judg-ment or common sense is important, but stated only that LERO training does not try to teach common sense and that common sense proba-bly cannot be taught. LERO non-management personnel (primarily field personnel) are en-couraged to use good judgment but not to de-velop an ad hoc response; field personnel are to follow procedures and refer major decisions to management which has an overview of the emergency response. FEMA agreed with this approach.)
/ ,), ,
i
'k p
-201-Intervenor
'F W Findinr LILCO Raawwm _
Explanation 869 Out of context See L.F. 436; Tr. 5620 (Daverio) (The statement "this type of training is especially important in an organization like LERO, which allows any-one employed by LILCO to become a member" wrongly suggests LERO is indiscriminate in its employment of personnel. Although most LILCO employees can become a member, there is selectivity employed in their placement within the organization. Thus, people with !
management skills are placed in management positions, while those without such skills are not.)
870 Refuted by record See Response to LF. 846-47 (LILCO's and Inter-venors' witnesses agreed that the critical ele-ments of a response to a radiological emergen-cy at a nuclear power plant are anticipated and planned for in the LILCO Plan.) S_e_e Re-sponse to I.F. 840 (Drills are conducted to sim-ulate as closely as possible an emergency situa-tion and are carried out in situ in response to information presented in the same form and manner it would be in an emergency. Interve-l nors' testimony that the training program does not provide enough " realistic training" is unreliable. Not one Intervenor witness had been to a drill. Indeed one witness admitted that he didn't know whether drills included simulated role play.)
870,n.564 Refuted by record See L.F. 423-26.
871 Out of context; refuted See Response to I.F. 846-47; L.F. 436-47; Tr.
by record 5620 (Daverio), 8272-74, (Keller), 8207-08 (Kowleski), 6408-12 (Perrow) (Interveners inap-propriately apply statements made about non-management personnel to the entire LERO or-ganization. Field workers are taught to adhere to procedure to provide a coordinated response .
I and to permit major decisions to be made by managers who have an overview of the whole emergency response. The drill and exercise !
scenarios employed constantly challenge LERO management to use their common sense and { '
good independent judgment.)
873 Refuted by record; un- S_ee L.F. 210, 221-25, 237-39, 409-12 (It is self- j justified inference; no evident that, since the Evacuation Route l citation Coordinator did not inform his co-workers or i
-202-Interrenor ;
s Proposed Findine LILCO Response Exp'anation 1 superiors of the impediments, they were not in possession of information that would cause them "to explore alternatives for verification .,
of the impediments". Clearly, once informa- l
[ tion about the impediments was available, LERO personnel did attempt to verify the im-pediments through alternate means. Specifi-cally, the Transportation Support Coordinator in the EOC notified the Bus Dispatcher at the Port Jefferson Staging Area of the possible fuel truck accident. That Bus Dispatcher re-ported to the Transportation Coordinator that -
a visual check of the fuel impediment site indi-cated there was no problem with traffic or evacuation completion. That information was relayed by the Transportation Support Group to the Evacuation Route Coordinator. The record likewise refutes Interveners' claim that LERO personnel failed "to exercise prompt judgment regarding the kinds of equipment which would be needed to respond to the impediments". In-tervenors disagree with the type of equipment sent; however, there is no indication that, once the impediments were identified, LERO was not prompt in dispatching equipment to re-spond.)
874 Refuted by record See Response to I.F. 863-64; L.F. 418.
875, Refuted by record; un- See L.F. 414-16; N.F. 434 (FEMA agrees with 875, n. 565 justified inference LILCO that the copy machine problem was not training related. Moreover, the record shows that LERO did attempt to remedy the copier problem by seeking other copiers and that, in a real emergency, media personnel would have heard the EBS messages.)
875,n.566 Out of context; un- S_ee Response to I.F. 330; L.F. 438, n.119; justified inference LILCO Test. Cont. EX 50, ff. Tr. 4368, at 67-68, 74; Tr. 5750,5782-83 (Behr, Daverio);
SC EX Exh. 96 at Att. 7,2-5 (In order to per-fect the LERO organization's performance and timely response, the drill reports are very crit-leal of less than perfect performance. The comments here from seven different drills are so sporadic that they do not demonstrate any pattern of failure. Moreover, as was the case with the Exercise events, these comments of ten relate to a difference of opinion or
-203-Intervenor Proposed
, Findhr LILCO Response Explanation -
judgment rather than to faulty judgment. For example, the 10 to 15 minute delay caused by using written message forms rather than picking up the telephone to the Staging Areas is r.ot an excessive time in which to transmit messages to the Staging Areas; the critique comment is only that the time can be im-proved, not that a problem resulted or that judgment was poor. Alternative means of communicating with Staging Areas are being stressed in training.) Tr. 5769-70 (Behr) (Play-ers followed their procedures and when they could not verify the impediment because the controller simulating a Route Spotter said no impediment was at the location, they assumed it was a rumor. As in the Exercise, this is a simulation problem;if this had been a realim-pediment many sources of information would have precluded this from happening.) OPIP 3.6.3; SC EX Exh. 96 at Att. 8,3; Tr. 5750-51 l
(Behr) (Procedures do not preclude the RHC from making a decision on the ingestion of KI prior to completing his calculations. He was just being conservative.) See L.F. 414; SC EX Exh. 96 at Att. 9,18,45 (The Road Crew was informed not to report to the accident, which was a good decision, because the problem was already being taken care of by the fuel compa-ny that owned the truck. As is clear from the drill report, the delay in the press briefing was the result of onsite personnel not arriving until late because they were not prestaged. This is not a LERO training problem; moreover, the press would have been receiving information from EBS messages.)
877 Unjustified inference CLI-86-11,23 NRC at 581 (The issue before this Board is whether a fundamental flaw was demonstrated;it does not place an affirmative burden on LILCO to show that every aspect of its Plan can be satisf actorily implemented.)
878 Out of context S_ee L.F. 450; LILCO Test. Cont. EX 50, ff. Tr.
4368, at 64-73 (LILCO contends that major changes in concept and format are unwar-ranted; this does not preclude the addition of significant materials or training to account for changes in planning, procedure changes, job performance aids, additional drills or other
3.
-204-Intervenor -1 Proposed l Findlar LILCO Response M= tion practical training (e.m, road rallies), or the in-troduction of new concepts.)
879L Out of context; refuted Plan at 5.2-2; see L.F. 450-55; SC EX Exh. 95;
' by record (Test. Cont. EX 50) at 200-17 (Interveners have not established a pattern of training f ailures in I the Exercise and have not established the con-tinuance of a pattern, if any, in the drill re-ports. Interveners' charge that the fixes to the training program will be ineffective rests pri- .d marily on their opinion that LERO's organiza-
' tional structure is inherently unworkable.) Tr.
6407-12 (Perrow)(Interveners agree that the appropriate structure for an organization is de- i pendent upon the types of problems that the organization must address. In LERO's case,it i must protect the public health and safety in the event of a radiological accident at Shoreham. The critical elements of a response to an accident at Shoreham would be assessing and diagnosing the scope and severity of the accident, and making and issuing the appropri '
ate protective action recommendations. Such analysis would require the reconciliation of in-formation from various sources and would be best done at a central facility such as an EOC.
Thus, a centralized structure, such as LERO's, is a more appropriate means of addressing the criticalissues of an emergency response be-cause it provides a means to coordinate meteo-rological data, source term data, traffic condi-tions data, and other vitalinformation to pro-vide an effect response.) ' See Tr. 8272-74 (Keller), 8207-08 (Kowieski); SC EX Exh. 95 (Test. Cont. EX 50), at 207-09 (Interveners also criticized LERO's organizational structure as having poorly designed span of control and task requirements; they allege that those problems can probably po_t be overcome. There is no ev-idence of any such organizational difficulty during the Exercise with any of the supervisors Dr. Perrow used to illustrate his claim. Indeed, the tasks of supervisors such as Transfer Point Coordinators were neither complex nor was the ratio of Transfer Point Coordinators to Bus Drivers so high as to create a problem with spans of control.) -
-205-Intervenor '
Pieposed Findlar LILCO Raananne Explanation 881 Refuted by record _S_ee L.F. 450-53; Tr. 8534-36 (Keller Kowieski),
8719-21 (Keller), 8314-16 (Kowieski) (The Exer-cise revealed that the LERO training program prepared emergency personnel to do their jobs effectively and that no systemic or pervasive fallure in any aspect of the training program was revealed. FEMA agreed that LERO's per-formance showed only an average number of errors and that LERO essentially performed ef-fectively in the Exercise.) LILCO Test. Cont.
EX 50, ff. Tr. 4368, at 68-74 (Some of the prob-lems from the Exercise have recurred in drills, !
but even these recurrences are not of the fre-quency or magnitude to indicate any training program problem.)
882 Out of context S_e,_
e Plan 5.2; LILCO Test. Cont. EX 50, ff. Tr. l 4368, at 66-67 (Training drills are part of the ongoing training program. They are not the "last stage." It is possible for a training drill to ,
be the first contact that a new LERO member has with the training program. Again, drills are supervised instructional periods which very of ten do not include as many aspects of the plan as the Exercise (e&, notification.) They ]
are of ten used to introduce new concepts.)
883 Out of context; not sup- CLI-86-11,23 NRC at 581; s_ee L.F. 453 (Unless i ported by citation this Board finds a fundamental flaw based on !
Exercise events, it has no jurisdiction to look at fixes proposed to FEMA. Likewise, another Exercise is not required for a reasonable assur-ance finding unless a fundamental flaw pre- ,
cludes such a finding.) Tr. 5393-95 (Daverio), l 7506-509, 7916, 7921, 7923-25, 7950-51 (Baldwin, Keller, Kowleski) (Mr. Daverio did not concede that FEMA graded many of the proposed fixes as inadequate. He said that they were all considered incomplete until dem-onstrated in the next exercise. FEMA did not '
contradict LILCO's position on " reserved judg-ment" where a fix has been graded inadequate);
FEMA EX Exh. I at 8 (an ARFI does not identi-fy a performance " problem"; an ARFIis an item that,if corrected, would enhance the level of emergency preparedness.)
I
.___-__-________a
1:
-206-Intervenor
', W Finding LILCO Response Explanation l-
'884 Refuted by record See L.F. 403-65 (None of the evidence offered by Interveners indicates either a systemic or pervasive failure of the LERO training pro-gram, which is prerequisite to a finding of fun-damental flaw. With the exception of its re-sponse to the impediments, LILCO and FEMA agree that LERO did as well or better than
! other offsite emergency response organiza-tions, and the kinds of training problems iden-tified at Shoreham were similar to those iden-
- j. tified at other sites in FEMA Region II.)
I 9
I l
-207-RESPONSE TO NRC STAFF'S FINDINGS XL Contention EX 40.A. B. E: Mnhill?ation Of Traffic Guides Staff Proposed Finding LILCO Response Explanation 108 Not supported by cita- Tr. 8100 (Keller) (Mr. Keller said that "by defi-tion; refuted by record nition" Traffic Guides could not be at their posts at the " outset of the evacuation recommendation"(emphasis added).) PID at 786; Tr.1608 (Lieberman)(Staff mistakenly equates evacuation process and evacuation recommendation. Mr. Lieberman testified that the evacuation process would begin approxi-mately 20 minutes af ter the evacuation recom-mendation. The earlier Board accepted this.)
117 Out of context Tr. 8091 (Keller)(A FEMA witness ncted that he did not know "whether we would have said an additional deficiency . . .. (M !y inclination is, based on the way we have worked in the past, that we would have said oae defi-ciency . . .." The flat assertion that FEMA would have identified an additional Deficiency distorts the record. The witness explained that several examples might have been included within the existing Deficiency.)
118 Outside the scope of the LILCO Test. Cont. EX 40, ff. Tr.1548, at Att.
contentions A (As Staff apparently recognizes, the issue of the alleged misinformation given to simulated evacuees is outside the scope of Contention EX 40, which deals only with Traffic Guide mobill-zation.)
132 Refuted by record LILCO Test. Cont. EX 40, ff. Tr.1548, at 8-9, l 13-19 (The results of the Exercise provide rea- I sonable assurance that LILCO can and will im-plement its Plan in a manner adequate to pro-tect public health and safety in the event of a Shoreham emergency. Traffic Guides from the I
)
-208-1 Staff nW Finding LILCO Response Explanation i
Patchogue Staging Area staffed their " critical" l TCPs within approximately one hour of the l evacuation recommendation. Staffing of criti- !
cal TCPs by Traffic Guides from Port Jefferson I and Riverhead took somewhat longer, but the resulting 49 minute delay between the expect-ed onset of congestion and the staffing of the last critical TCP would have extended the esti-mated evacuation time by some amount less than 19 minutes. This extension would not have been significant enough to affect public health and safety.)
132,n.11 Not supported by cita- See LILCO's Reply to Interveners' and NRC j tion; refuted by record Staff's Proposed Findings of Fact and Conclu-sions of Law on the February 13,1986 Shoreham Emergency Planning Exercise S V (Staff confuses the " immateriality" argument .
with the argument made by LILCO on Conten- ]
tion EX 40.)
133 Refuted by record See L.F. 278-80 (Since the results of the Exer-cise did not demonstrate that the LILCO Plan is fundamentally flawed with regards to Traffic ,
Guide mobilization, the Plan does not need to )
be fixed. As a consequence, Staff's assertion i that it "cannot be assured that subsequent im-provements are an adequate remedy" is irrele-vant.)
l XII. Contention EX 41. A. B. E: Roadway Impediments 150 Refuted by record See Response to I.F. 224, n.155.
176 Refuted by record LILCO Test. Cont. EX 41, ff. Tr. 272, at 26-27; Tr. 734-38 (Wilm), 8438 (Baldwin, Keller, Kowieski) (Staff's finding is not entirely consis-tent, stating first that the equipment sent to the gravel truck impediment was "probably in-adequate" and later flatly concluding that i there was "no demonstration" that LERO had the " appropriate equipment" at its disposal. In ;
any event, LERO did demonstrate that it had i appropriate equipment to respond to the gravel l truck impediment. Given that the free-play -l message was ambiguous as to whether just the !
gravel truck or the entire accident was !
-209- !
Staff Proposed Findira _ LILCO Response Explanation blocking the road shoulders, and given that there were different ways to visualize the hy-pothetical accident,it was reasonable to as-sume that the single compressor truck could have removed one or more of the cars and thus opened a path for traffic.) PID at 810-11; LILCO Test. Cont. EX 41, ff. Tr. 272, at 24; Tr.
734 (Wilm) (Moreover, the record establishes that LERO has many vehicles available to deal with roadway impediments and that the Road Crew responding to the gravel truck could have requested additional help if necessary.
The earlier Board recognized this capability, finding that "there is no reasonable basis for thinking that road clearing during an emergen-cy would be hampered by lack of resources with which to respond.")
210 Unjustified inference S_ee Response to N.F. 226-27; Response to I.F.
251 (Staff's statement that it "cannot assume, as LILCO has claimed, that in an actual emer-gency with information coming from the field the response would be f aster" contradicts its recognition in later findings that the confusion caused by the Evacuation Route Coordinator's poor judgment in not promptly informing his superiors in the EOC of the impediments "would be unlikely in the case of an actual emergency." More importantly, Staff forgets that it needs to consider "real world" conse-quences in order to determine the effeet on public health and safety and, in turn, whether a fundamental flaw exists.)
1 226 Unjustified inference; See N.F.170; LILCO Test. Cont. EX 41, ff. 272, refuted by record at 12,19-20 (While, strictly speaking, the statement "[n]or did the Evacuation Coordinator inform the Manager of Local Re- j sponse and others in the EOC" is true, it is ir-relevant. LILCO has acknowledged that the Evacuation Route Coordinator showed poor l
judgment in not promptly informing the Evacu-i ation Coordinator of the impediments; the j Evacuation Coordinator first learned of them j when told by a FEMA evaluat . at 12:13. Prior l to that time it clearly would have been impos-sible for him to have informed the Manager of Local Response or others of the impediments.
Moreover, as Staff itself notes, the record ;
j i
l 1 I I l l
~-210- ,
i Staff Proposed Finding LILCO Response . Explanation establishes that the Manager of Local Response learned of the impediments on his own just minutes af ter the Evacuation Coordinator was informed.) S_ee Response to N.F.176 (The Road Crew responding to the gravel truck impedi-ment did have the proper equipment to do the job.)
227 Unjustified inference LILCO Test. Cont. EX 41, ff. Tr. 272, at 15 (Staff's assertion that the message rerouting traffic was " generally untimely" because it was sent 24 minutes af ter the fuel truck impedi-ment was verified fails to account for the fact that the Evacuation Coordinator first dealt with the rerouting for the gravel truck impedi-ment. The record indicates that the rerouting schemes were implemented quickly once the Evacuation Coordinator became involved.)
LILCO Test. Cont. EX 41, ff. Tr. 272, at 16 (Similarly, only 23 minutes passed between the time the Traffic Guide at TCP 40 received the rerouting order and the time he radioed for more traffic cones and an additional Traffic Guide. Taking into account the time necessary to assess the roadway geometry, it cannot be i f airly said that this response was " generally untimely.") PID at 719; LILCO Test. Cont. EX l
41, ff. 272, at 16 (Further, it took only 22 i l minutes for the additional Traffic Guide to be dispatched from the Port Jefferson Staging j Area. This cannot be considered a " generally 1 untimely" response, particularly given that the additional Traffic Guide first had to pick up his equipment.)
]
228 Unjustified inference See Response to N.F. 227; LILCO Test. Cont. !
EX 41, ff. Tr. 272, at 15-18, 25-26; Tr. 845 1 (Lieberman), 854-55 (Wilm), 909-11 (Weis- i mantle, Wilm), 1024-25 (Wilm) (The conclusion i that "[i]n sum, the LERO organization did not properly respond to the fuel truck impediment in the Exercise" cannot be fairly drawn from 1 the examples given by Staff of LERO's alleged '
untimely responses. First, Staff fails to ac-l count for the fact that the Evacuation Coordinator dealt with the gravel truck rerouting before turning to the fuel truck; ac- -)
! cordingly, the fact that the fire department j was not notified for 24 minutes af ter the fuel i I
1
-211-Statt Fmp ;.J Finding LILCO Response Explanation truck impediment was verified is not signifi-cant. Moreover, only 27 minutes af ter verifi-cation, a Route Alert Driver with dosimetry had been dispatched to the impediment scene to monitor the responding firemen. Second, neither the sending of the Road Crew nor the notification of the fuel truck owner can be considered " untimely." Staff ignores LILCO's testimony that the Evacuation Coordinator properly concluded that the fuel truck impedi-ment was not going to be removed quickly in any event and that he immediately developed and implemented an effective rerouting scheme. LILCO estimated that the fuel truck impediment would extend overall evacuation time by some amount much less than an hour, if anything. Accordingly, once rerouting was in place, there was no pressing need to dis-patch equipment to the impediment. The Road Crew was sent merely to " stand by" and render whatever assistance it could to the responding firemen. Offloading of the fuel truck could not have been properly attempted until the fire hazard had been eliminated; moreover, owner-ship of the truck was not established until af ter additional information had been inputted by FEMA. In short, Staff has failed to demon- )
strate that LERO's alleged " improper response" i to the fuel truck impediment would have had an adverse effect on public health and safety.)
229 Refuted by record See Response to N.F. 176, 227-28 (LERO's !
overall response to the impediments was effec-tive and generally demonstrated that LERO can deal with roadway impediments. Staff's assertions to the contrary are predicated on questionable determinations that certain LERO responses were untimely or inadequate. More" j over, Staff neither clearly alleges nor convine- 1 ingly demonstrates that these " inadequate" or
" untimely" responses would have adversely af-fected public health and safety.)
231 Refuted by record S_e_e Response to N.F. 229 (Contrary to Staff's assertions, adequate equipment was sent to the gravel truck impediment; the overall response to the fuel truck was proper,if not as timely as it could have been; and effective rerouting schemes were quickly implemented once the
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-212- t Staff Proposed Finding LILCO Response Explanation Evacuation Coordinator became involved. As a consequence, Staff has failed to demonstrate fundamental flaws in the Plan. Accordingly, the assertion that a remedial drillis necessary to " demonstrate that the LERO personnel have the skill and ability to implement the Plan" is erroneous.)
232 Refuted by record _S_ee N.F. 427; LILCO Test. Cont. EX 41, .ff. Tr.
272, at 28-30 (Staff implies that the addition of the Traffic Engineer is the only change which LILCO has made to its Plan and concludes that this fix is "not relevant" to the problems of
" communication throughout the EOC and from there to the field, and in training." Staff is wrong for three reasons. First, the Traffic En-gineer will do more than just devise effective rerouting schemes. He will bring new insights to the entire decisionmaking process at the EOC, enabling LERO to respond more quickly and with more confidence to any roadway im-pediment or unexpected traffic problem. Sec-ond, Staff simply has ignored the fact that post-Exercise revisions have been made to Pro-cedures, which now provide more detailed in-structions regarding responses to impediments and which stress the importance of reporting information about unusual traffic occurrences up the chain of command. Third, Staff f alls to mention that changes made to the Plan, including the addition of the Traffic Engineer, have been reinforced through extensive table-top exercises and field drills which are de-signed to test LERO's ability to respond to roadway impediments of varying severity. Sig-nificantly, in N.F. 427 Staff does recognize the efficacy of these post-Exercise changes, noting that the " intense post-Exercise training on major road impediments would seem to make it less likely that LERO would encounter such pervasive difficulties in future exercises or in an emergency. In addition to adding the posi-tion of Traffic Engineer to assist in developing alternate routing strategies, procedures have been changed to improve notification, verifi-cation, and internal communications.")
i
l I
-213-Staft 1 Proposed Finding LILCO Response Explanation XIII. Contention EX 50: Training )
405 Unjustified inference CLI-86-11,23 NRC at 581; Prehearing Confer-ence Order (Ruling on Contentions and Estab-lishing Discovery Schedule) at 29-30 (Oct. 3, 1986)(The two-step process referred to in the f '
Prehearing Conference Order is FEM A's review process which reviews the written plan first and then its implementation in an exercise; the Order does not imply a two-step review pro-cess for the NRC. This Board's review of the Exercise is " restricted to determining if the exercise revealed any deficiencies which pre-clude a finding of reasonable assurance that protective measures can and will be taken, i.e.,
fundamental flaws in the plan." As the Board noted with respect to Contention EX 50 in th?
Prehearing Conference Order, it "will not take evidence on the details of the training program l because that has been thoroughly ventilated in previous hearings. The only issues of interest in this proceeding will be whether flaws specified in the bases occurred in the exercise and if so whether they collectively point to a fundamentally deficient training program.")
406 Unjustified inference; CLI-86-11,23 NRC at 581; PID at 756 (This l Board's review is restricted to identifying fun-relitigation of planning issues damental flaws in the way the Plan is con-ceived. In the Plan proceeding the ability of the training program to meet regulatory stan-dards was challenged, and the Board concluded that "the LILCO Plan training program meets the regulatory standards.")
407 Unjustified inference; S_ee Response to N.F. 406 (To the extent that relitigation of planning the finding implies a need to reexamine the issues training program in light of the regulations, it is an attempt to relitigate issues squarely be-fore the Board in the Plan proceeding.)
410 Not supported by cita- (Staff misapprehends LILCO's position on the tion; refuted by record appropriate standard of review. At the outset, one must determine whether the problem is training-related or related to equipment or procedures. Once the problem is determined to be training-related, one must first deter-mine whether there are a sufficient number of l
i 1
-214-Staft Proposed Finding LILCO Ramarma Explanation occurrences to establish a pattern of break-downs or a systemic failure. Second, assuming the problems show a pattern of breakdowns or a systemic failure, one must determine wheth-er the problem is significant and would affect public health and safety and, if it is, whether there are sufficient diverse or redundant mechanisms to assure the protection of the i public health and safety. Third, one must de-cide whether the problem is readily cor-rectable. Only where all three tests have been met can it be said that a fundamental flaw in the training program has been established.) Tr.
5061 (Lindell) (Dr. Lindell's statements were comparative; in essence, diverse and redundant systems are failure protection systems. He stated that "in order to relate individual training criteria to the performance of the or-ganization you have to understand how various i
backup mechanisms, divergent or redundant i
mechanisms -if you have no divergent or re-dundant mechanisms, you need a higher training criterion. If you have more, then a lower performance criterion is acceptable on the basis of individuals" (emphasis added).)
l 415 Refuted by record See Response to I.F. 675, n. 458,671, n. 459, 677, n. 460; L.F. 407 (Interveners' witnesses
- j. Were not uniformly quallfled to render the tes-timony they gave. Moreover, they had little knowledge about the LILCO Plan and Proce-dures. Dr. Perrow's testimony should be ac-corded little weight; his admitted bias against nuclear power plants led to biased conclusions about emergency response. For example, he stated that even the best emergency organiza-tion is not good enough to handle the " inherent hazard" of nuclear plants. S_gte Tr. 6370 (Perrow).)
416,n.21 Unjustified inference See L.F. 455-56 (Dr. Mileti's NUREG/CR-3524 analysis of the FEMA Report was relied on to show that LERO's organizational structure is likely to be effective, that the training pro-gram produced an organization with high po-tential for effectively responding to an emer-gency, that the training program is not funda-mentally flawed, and, that LERO's organiza-tional structure will not preclude correction of any training problems.)
l l
l
-215-Staff FW Finding LILCO Response Explanation 418 Unjustified inference See Response to N.F. 410.
419 Out of context See L.F. 420-22; LILCO Test. Cont. EX 50, ff.
Tr. 4368, at 34-40, Att. B (Staff implies that LILCO focused only on impediments and ig-nored other unanticipated and unrehearsed events. This is incorrect; Attachment B deals with all the allegations in the Contention and LILCO's findings address the evidence adduced by Interveners.)
420 Refuted by record See L.F. 421-22 (Oddly, Staff characterizes In-tervenors' definition of unanticipated and unrehearsed events as broader than LILCO's.
Interveners clearly took a very narrow view of unanticipated and unrehearsed events. Other than impediments, Interveners' witnesses testified only about Rumor Control inquiries and responses from LERO Traffic Guides to simulated inquiries; they stated "there were not a great number of unanticipated and i unrehearsed situations." See L.F. 421, n.103.)
l 425 Refuted by record See Response to N.F.176; Response to I.F. 255, 286, n.198; L.F. 224-25 (The examples given to support the assertion that there were problems not related to the artifice of the simulation and not limited to the Evacuation Route ,
Coordinator do not bear scrutiny. First, con-trary to the FEMA report, the inexpeditious dispatch of the Route Spotter to the site of the l
fuel truck was not caused by the need to brief .
him. Rather, it was caused by the failure of the EOC Communicator to explain clearly to the Port Jefferson Staging Area that the Route Spotter was needed to verify an impediment.
Had the Communicator done so, a LERO field worker would have been dispatched immediate .
ly. Second,it simply is not true that the Transportation Support Coordinator had not been informed of the gravel truck impediment as of 12:40. Exercise documents clearly indi-l cate that he was aware of both impediments at least an hour before 12:40. Third, the state-ment that the Road Logistics Coordinator had not been informed of the need to send equip-ment to the site of the fuel truck impediment also is not true. He knew of the possible need l for equipment shortly af ter 12:13, but a
i
{
-216- 1
' Statt .~
W Finding LILCO Response Explanation 1
l J
conscious decision was made not to dispatch'a tow truck until the fire department had elimi-nated the possibility of fire. Fourth, the {
equipment sent to the gravel truck impediment !
was not inadequate. Given the ambiguity of l the free play message, it was reasonable to as- 1 sume that the compressor truck could move i one or more cars off of the road shoulders and open a path for traffic. Finally, while it is true that certain information was omitted from the initial LERO message to the Route Spotter and Road Coordinator, the omissions were unimportant and did not delay LERO's re-sponse; the f acts were readily observable and would have been factored into the responders' actions.)
426 Unjustified inference See Response to I.F. 330 (The statement that "many of the same problems experienced dur-ing the Exercise plagued the drills" is unwar- {
ranted and misrepresents the evidence in the '
drill reports, which indicates a clear pattern of I good responses and improvement. The fact that the drill reports contain some criticisms of LERO's handling of impediments simply in-dicates that the drills are designed to reveal even minor problems and that LERO training is rigorous and thorough.)
428 Unjustified inference; Staff's characterization of FEMA's assessment not suported by citation of LERO's response to the impediments is not altogether accurate. Tr. 8285 (Keller)(The witness explained that " breakdowns in the training program" meant that " training needs to be enhanced," not that the training program itself is fundamentally flawed.) Tr. 8297-98 (Keller)(FEMA did not find that the LERO training program was inadequate; the witness stated that he was "not aware that FEMA has ever made a finding on a training program. . ..
The performance of the training program is evaluated asisp]. .art All I can [say of observed
. we the other many objectives.
areas . . .
where the training needs to be improved and was not completely adequate.") Tr. 8300 (Keller)(FEMA did not find that LERO manag-ers were " unable to adequately handle unex-pected situations"; the witness noted that in some instances LERO players " handled them in
-217-
.Staft Proposed Findhu LILCO Response Explanation an inadequate manner as reflected by the ARCAs generally speaking in . . . terms of timeliness.") See Response to I.F. 883 (Since the results of the Exercise do not demonstrate a fundamental flaw, the Plan does not need to be fixed. As a consequence, FEMA's assertion that reassessment of the training program must await another exercise is irrelevant.)
'433 Refuted by record See L.F. 356-60, 391, 414, 418; see also !;.F.
483 (Contrary to the FEMA Report, the delay in posting of EBS messages would not have de-prived the media or Rumor Control personnel of an accurate or timely picture of the pro- '
tective action recommendations for the public.
In an emergency, the media and Rumor Control personnel would have heard the EBS messages as they were broadcast to the public.) '
434 Refuted by record See L.F. 418 (LERO personnel did attempt to resolve the problem with the broken copier and did seek alternate means of providing hard copy information.)
435, n. 23 Unjustified inference _See. CLI-86-11,23 NRC 577-78; L.F. 3, 418 (This is not a case of conforming the pleadings with the proof. The onsite training program is clearly beyond the scope of this Board's juris- ;
diction. Interveners defaulted on the Phase 1 (onsite) portion of the emergency plan pro-ceeding; those issues are res judicata. And, this Board's jurisdiction is limited to whether a fundamental flaw in the offsite plan was re-vealed by the Exercise.)
442 Not supported by cita- SC EX Exh. 95 (Test. Cont. EX 50), at 151-59 tion (Interveners' examples of LERO personnel's al-legedly f alling to exercise independent judg-ment are few. They are basically the impedi-ments, ENC, Rumor Control, the field moni-toring team's stopping in the plume, the i evacuee's using a contaminated hand to put on l protective booties, the failure to call the j LIRR, and the crossing-out of information in sample EBS messages.)
-444 Refuted by record; un- See Response to N.F. 442; L.F. 421-22 (The im-justified inference pediments were not "the only significant test" i of LERO's ability to respond to unanticipated j
-218-Staff Proposed Finding LILCO Response Explanation and unrehearsed events. Most of the events in the Exercise were unexpected and dealt with appropriately. Even if one were to accept In-tervenors' more narrow definition of unantici- !
pated and unrehearsed events, which included Rumor Control inquiries, ENC press inquiries, the Ridge Elementary School free play mes-sage and the Traffic Guides' responses to simu-lated inquiries from the public, it is evident that the impediments were not "the only sig-nificant test".) See Response to N.F.176, 227-29; Response to I.F. 327; L.F. 409-12 (LILCO disagrees that the response to the traf-fic impediments demonstrates an inability to respond to unanticipated and unrehearsed events. Once the impediments were identified to the Traffic Group, their response was ap-propriate.) S_ee Response to N.F. 410; L.F.
404-06,409-12; N.F. 407; LILCO Test. Cont.
EX 50, ff. Tr. 4368, at 36-39 (Even if one were to accept that the response to the impedi- I ments demonstrates an inability to deal with l unanticipated and unrehearsed events, that alone does not demonstrate a systemic failure of the training program. There are simply not a sufficient number of problems associated with the impediments that were not the direct result of either the Evacuation Route Coordinator's iallure or the low fidelity of the FEMA simulation to establish any pattern of training problems. Indeed, the low fidelity of the simulation thwarted the diverse and redun-dant means that would be available in a real emergency to correct the failure of the Evacu-ation Route Coordinator to appreciate the se-verity of the impediments and to communicate j their presence to others. In short, Staff's con- )
clusion is incorrect when one applies.the stan- i dard of proof Staff advocates.)
446 No citation; refuted by S_ee L.F. 417 (Staff's assertion that the f ailure l record to communicate the appropriate information I l "in providing up-to-date information to media j and rumor control operators" was a violation of the Plan and Procedures is supported neither by citation nor by the record, as a whole. In- 1 deed, there is no evidence in the record that j the Plan and Procedures were not followed by i ENC personnel.) !
l l
-219-Staff '
Proposed Findlar LILCO Response Manation .
449 Not' supported by cita- Tr. 8285 (Keller) (Mr. Keller stated that j tion " training needs to be enhanced" not that there a was a serious problem with training. To the extent that Staff's findings implies that Mr. ;
Keller's remark is analagous to a fundamental '
flaw, it is incorrect.) Tr. 5638-39 (Daverio);
FEMA EX Exh. I at 66 (There is no indication !
that Bus Driver training was superficial. Dur- l ing the Exercise, some 386 Bus Drivers were i dispatched, only three made mistakes noted by. '
FEMA. Significantly, these mistakes were for only a part of their task, and each mistake was -
different so no pattern was established. The , l Plan provides for multiple drivers to cover each route so that their failures would have no j effect on public health and safety, and at least .
one driver tried to mitigate the effect of his i error by renting a bus with his own credit card when he discovered he was at the wrong yard.)
l 451 Refuted by record; _Se_e L.F.160, 266, 405, n. 87 (As the record j relltigation of planning demonstrates, LERO mobilized and dispatched issues over 1000 field personnel-- far more than had ;
been mobilized and dispatched at any other 1 FEMA exercise. Obviously, actually dis-patching a full complement of field workers was more realistic than dispatching a sampling of workers, and it took more time.) See 1 Prehearing Conference Order (Ruling on Con- i tentions and Establishing Discovery Schedule) I at 24 (Oct. 3,1986); L.F. 268-76; FEMA EX Exh. 3 at 1 of 19 (The only examples of delayed dispatch referenced by the citation in Staff's finding are Bus Drivers, the Port Jefferson Route Spotter who was to verify the fuel truck impediment, the Ridge Elementary School bus, and Riverhead and Port Jefferson Traffic Guides. Substantial evidence on the record as a whole disputes the characterization that the !
dispatch of these field workers was delayed.
Delay in the dispatch of Bus Drivers was found not to be a problem by FEMA when it changed j the Patchogue Deficiency to an ARCA, or by :
this Board when it rejected Contention 43 on !
the ground that the facts did not indicate mo- l bilization was untimely. Bus Drivers are not ;
dispatched on routes until at least one hour l af ter the evacuation recommendation, see_ l OPIP 3.6.4 S 5.3.4.) See Response to N.F. 425; !
I I
L 1
-220-
' Staff-Proposed Fins 5ar LILCO Response Egtlanation Response to I.F. '286, n.198 (The only problem noted in the Exercise with the dispatch of a Route Spotter was the dispatch of the Spotter from Port Jefferson to respond e3 the fuel truck impediment. There the Route Spotter was timely dispatched under _the Plan, but a more expeditious response to the impediment was desirable; however, this was not a dispatch -
problem, because the Communicator at the
- EOC never communicated the immediacy of the problem to the Staging Area personnel so no expedited response was prompted.)
453 Refuted by record See L.F. 429; LILCO Test. Cont. EX 50, ff. Tr.
4368, at 46-47, Att. G (Player logs and FEM A .
- evaluator forms show that dispatch took 33.
minutes.)
455 ~ Out of context Tr. 5787 (Behr) ( Mr. Behr did not agree that <
- dispatching field personnel from the Staging
!- Areas is a problem. He stated in the context of a question about why a particular problem had arisen in a drill that LILCO was consid-ering running Staging Area "only drills where we actually go and ferret out these problems",
if any, to see precisely their cause.)
458 Refuted by record L.F.168-72; LILCO Test. Cont. EX 50, ff. Tr.
4368, at 50,52; Tr. 6550 (Cosgrove), 8472-73 ;
(Kowieski)(The mobilization and dispatch of all 386 Bus Drivers was observed and evaluated by l FEMA. In any event, the mobilization and dis-l patch of 386 Bus Drivers, as opposed to a sam- )
ple, did have an effect on the time it took to dispatch the eight on which the Staff would base its finding.)
459 No citation; unjustified Tr. 4514-16 (Lindell),5638-39 (Daverio) (Staff inference misapprehends LILCO's redundancy argument.
l The number of Bus Drivers available is only one aspect of the redundancy. The redundan-cles that LILCO claimed affected the evalua-
, tion of Bus Driver performance are the f act that the Bus Drivers are interchangeable so that there is no need for a particular Bus Driv-er to be at a particular bus yard or transfer point and the fact that each route is run by multiple drivers so that if one driver misses part of a route, another will be along to cover it.)
-221-l
- Staff.
Preposed !
riachu _Ln2co Response Explanation -
462 Refuted by record See L.F. 446-68; LILCO Test. Cont. EX 50, ff.
Tr. 4368, at 61-63; FEMA EX Exh.1 at 44-45, 51-52,59,68-69,76-77,79 (Both the FEMA Re-port and LILCO's testimony disagree with In-tervenors that dosimetry problems were wide-spread. FEMA indicated in its Report that most personnel understood dosimetry and radi-ation exposure control.)
- 465 Unjustified inference S_e e Response to N.F.132; Response to I.F. 392,-
- n. 268; L.F. 271-72,276; N.F.129 (Staff claims that the failure of some Traffic Guides to promptly staff their posts "shows a failure of training to instill a sense that these actions should be accomplished within a set time."-
This assertion is unwarranted, as Staff ignores evidence of several factors, unrelated to training, which contributed to at least some of the delays in dispatching Traffic Guides. For -
instance, on the day of the Exercise, Traffic Guides at Port Jefferson were instructed not to park in areas adjacent to the Staging Area, though they would park in those areas in the event of an actual emergency. Parking in the remote lots added as much as 20-30 minutes to these Traffic Guides' overall mobilization time.
This is not a training problem but simply an Exercise artifact which would not be repeated during a real emergency. Second, Traffic 1 Guides at the Riverhead Staging Area were de-layed by long lines at the equipment trailer and when field personnel picked up box lunches.
Neither of these causes of delay is a training problem. The first was an equipment problem which has been remedied through the installa- i tion of another door on the Riverhead equip- I ment trailer. The second was an Exercise arti-fact of no significance, since during an actual emergency lunches would not be provided to -)
field workers in a manner that could hamper their mobilization. When these contributing f actors are taken into consideration, the mobi- I lization times of the Port Jefferson and I Riverhead Traffic Guides come much closer to equalling the mobilization times achieved by the Patchogue Traffic Guides, times which Staff recognizes as having been sufficient to permit the realization of a " controlled" evacu-ation. The fact that the Patchogue Traffic
l -222-Staff
- - Proposed .
FinEng .LILCO Response Explanation Guides generally met their mobilization goal demonstrates there was no systemic failure in training that would indicate a fundamental flaw. Significantly, the contributing iactors noted at Port Jefferson and Riverhead were absent at the Patchogue Staging Area, further suggesting that the delays on the day of the Exercise were attributable to factors unrelated
.to training.)
467 Unjustified inference See'L.F. 422 (The inability of 13 out of 14 Traf-fic Guides questioned to provide the location of' the Nassau Coliseum does not indicate a break-down of the training program. The problem, while apparently pervasive, is explicable and readily correctable; it also would not affect l- the public health and safety since the public information materials and, more importantly, l the EBS messages issued every 15 minutes pro-i vide the location of the Reception Center.
L LILCO has already taken steps to correct the.
problem; it has revised the Traffic Guide Pro-cedure to include directing evacuees to listen to the EBS radio station for information and has included that procedural step on the Traf-fic Guide Identification Badge. FEMA ap-proved these changes in its RAC review.)
1 468 Out of context Tr. 8284-86 (Baldwin, Keller, Kowieski),
8534-36 (Keller, Kowieski), 8719-21 (Keller) (It is true that FEMA did state that most of the
" Deficiencies or ARCAs were attributed to breakdowns in the training program", but the implication that this indicates a Deficiency or fundamental flaw in the training program is erroneous. FEMA believed that some portions of the training program needed to be "en-hanced", but also agreed that only an average number of problems were found.) See Re-sponse to N.F. 465 (The delays in mobilization by some Traffic Guides do not indicate a " pat-tern related to deficiencies in training." Traf-t fic Guides from Patchogue mobilized in a time-ly manner, and the failure of some Port Jefferson and Riverhead Traffic Guides to promptly staff their posts can be attributed in part to identifiable equipment problems and other factors not at all related to training.)
l
-223-Staff Proposed Findlar LILCO Response Explanation 487 Refuted by record See N.F. 427; LILCO Test. Cont. EX 50, ff. Tr.
4368, at 65 (LILCO has done more to respond to the problems experienced in relation to the ;
traffic impediments than just enhance." train-ing for road impediments." Indeed, Staff ad-mits that there has been " intense post-Exercise training on major road impediments", including
" adding the position of Traffic Engineer to as-
. sist in developing alternate routing strategies" and changing procedures "to improve notifica-tion, verification, and internal communica-tions ")
491 Not supported by cita- PID at 751-52; Plan at 5.2; OPIP 5.1.1, S 5.2.1; tion; refuted by record; LILCO Test. Cont. EX 50, ff. Tr. 4368, at 67; unjustified inference Tr. 6765-66 (Cosgrove, Streeter) (There is no indication that LERO's basic approach to training, including drills, has changed. In LILCO's view, hands-on or learning-by-doing l
training has always been part of the drills. Nor
' should Interveners' claim that the drills were not realistic be given any weight. Not one of Interveners' witnesses had been to a LERO drill; their testimony was based solely on drill reports, which critiqued drill performance, and on drill scenarios, which are outlines of plant conditions with little information on the offsite response.) See L.F. 453 (Staff's unwill-ingness to give credence to improvement in performance because it was documented only in the drill reports and was not observed by Suffolk County or FEMA is without basis. The authenticity and veracity of the reports were not challenged by Interveners, who submitted them as their own exhibits, or by Staff. Nel-ther Suffok. County nor FEMA need have ob-served the drills for the reports to be accorded decisive weight on the issue of whether prob-lems identified in the Exercise are corrected or correctable.)
492 Out of context Tr. 5787 (Behr)(Mr. Behr did not agree that
" dispatch procedures at Staging Areas continue to be an area of concern"; rather, he stated that LERO would be /. coking at Staging Areas more closely in the future in drills of just the Staging Areas.)
-224-
'i Staff-Proposed Findlar LILCO Response N= nation
'493 Refuted by record; out Tr. 5772-73 (Daverio) (fir. Daverio explained .
of context the quoted language from the drill report and did not agree with Staff's conclusion and with the conclusion of the drill report. He stated _
communications is "one of the things that is al-ways needed to be improved and can always be improved," not that there were continued problems in the post-Exercise drills.) Tr.
5758-59 (Behr) (The miscommunication refer-enced at this citation was a control problem.
-When players took down a free play message called in to the EOC they wrote down Route 25-A not Route 25. Just as was true with the Exercise impediments, no further cues as to the existence of an impediment were forth .
coming. This is really a drill simulation or con-trol problem.)
l 494 - Unjustified inference Tr. 4464-65 (Behr),5136-37 (Mileti); see also i out of context Tr. 4464-65 (Daverio) (Neither Mr. Behr nor Dr.
Mileti agreed that "it is more difficult to train LERO personnel to be emergency response workers for a nuclear accident than it is to train persons who regularly perform emergen-cy response work." What they said was that, for some postions, there is a higher correlation between the emergency worker's normal job and his emergency job, i.e., the normative f ac-tor is higher. Moreover, many persons in other radiological emergency response organizations are not professional emergency workers either.
Significantly, during the Exercise the tasks for which LERO workers needed training, but pro-fessional emergency workers might not, were not the tasks associated with response prob-lems.)
495 Unjustified inference Staff wrongly concludes that police or fire de-partment personnel would be at-the-ready for a radiological emergency. While they may re-spond to emergencies such as traffic accidents and fires on a regular basis, they, like LERO,-
would have to train for a response to a ra-diological emergency at the Shoreham Plant only on an intermittent basis. Training for that emergency is what is at issue here, and, ,
for that emergency, police and fire' personnel are on equal footing with LERO. SC EX Exh.
95 (Test. Cont. EX 50), at 207-08; Tr. 6435-38
'225-Staff Proposed
. Firunnr LILCO Response R=3==mtion (Perrow) (Dr. Perrow was unable to provide support in Exercise events for his "large span of control" theory. According to Dr. Perrow,
" span of control"is the r31ationship between the number of subordinates for whom a superi-or is directly responsible and the variety of functions for which these subordinates are re-sponsible; if the tasks of subordinates are non-routine and checking on their performance is difficult, then a small span of control is neces-sary. Dr. Perrow's examples do not support his theory, he pointed to the eight Transfer Point Coordinators who were responsible for 182 Bus l Drivers at the Patchogue Staging Area (an av-erage of one supervisor for every 22 Bus Driv-ers.) The only tasks supervised by the Transfer Point Coordinators are the dispatch of buses to run predetermined routes through the EPZ and transmittal of any information needed to the Bus Drivers. These tasks are not so complex or the ratio of Transfer Point Coordinators to Bus Drivers so high as to create a problem with span of control, and none surf aced in the Exer-cise.)
496 Refuted by record See Response to N.F. 451 (Bus Drivers were timely dispatched; mobilization times were met.) See Response to N.F. 176, 227-29 (Road Crews were also timely dispatched in accor-dance with the Plan and generally demon-l strated an ability to deal properly with the im-
! pediments.) _Sg Response to N.F. 425; Re-sponse to I.F. 286, n.198 (The only problem noted in the Exercise with the dispatch of a Route Spotter was the dispatch of the Spotter from Port Jefferson to respond to the fuel truck impediment. There the Route Spotter was timely dispatched under the Plan, but a more expeditious response to the impediment was desirable; however, this was not a dispatch problem, because the Communicator at the EOC never communicated the immediacy of the problem to the Staging Area personnel so no expedited response was prompted.)
l 2
4'
'LILCO, Sept 3mber 25,1987 50CHE TED UbNRC CERTIFICATE OF SERVICE 17 SEP 28 P3 34-In the Matter of LONG ISLAND LIGHTING COMPANY us (Shoreham Nuclear Power Station, Unit 1) g r&NiupME ('
Docket No. 50-322-OL-5
['
ll
~ I hereby. certify that copies of LILCO's Reply. to Interveners' and NRC Staff's -l Proposed Findings of Fact and Conclusions of Law on the February 13,1986 Shoreham l Emergency Planning Exercise (two volumes) was served this date upon the following by hand, as indicated by an asterisk (*), by Federal Express as indicated by two asterisks ;
- (**), or by first-class mail, postage prepaid.
1 John H.' Frye, III, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing
)
, Board Panel j j Board U.S. Nuclear Regulatory Commission I
- U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers ff 4350 East-West Hwy.
Oreste Russ Pirfo, Esq.
- Bethesda, MD 20814 Edwin J. Reis, Esq.
U.S. Nuclear Regulatory Commission Dr. Oscar H. Paris
- 7735 Old Georgetown Road Atomic Safety and Licensing (to mailroom)
Board Bethesda, MD 20814 U.S. Nuclear Regulatory Commission East-West Towers Herbert H. Brown, Esq.
- 4350 East-West Hwy. Lawrence Coe Lanpher, Esq.
Bethesda, MD 20814 Karla J. Letsche, Esq.
Kirkpatrick & Lockhart 1 Mr. Frederick J. Shon
- South Lobby - 9th Floor Atomic Safety and Licensing 1800 M Street, N.W.
Board Washington, D.C. 20036-5891 U.S. Nuclear Regulatory Commission East-West Towers, Rm. 430 Fabian G. Palomino, Esq. **
4350 East-West Hwy. Richard J. Zannleuter, Esq.
Bethesda, MD 20814 Special Counsel to the Governor Executive Chamber Secretary of the Commission Room 229 Attention Docketing and Service State Capitol Section Albany, New York 12224 ,
U.S. Nuclear Regulatory Commission (
1717 H Street, N.W. Mary Gundrum, Esq. j l Washington, D.C. 20555 Assistant Attorney General 120 Broadway Atomic Safety and Licensing Third Floor, Room 3-116 Appeal Board Panel New York, New York 10271 :
U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ~
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" ;tti. Nora Bredes ' '
Spence W. Perry, Esq.
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William R. Cumming, Esq. ' Executive Coordinkter ( "r } Q '
Federal Emergency Management Shoreham Opponentf 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 ths 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 4 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 / i Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 \t New York, New York 10278 1
Jonathan D. Feinberg, Esq. y New York State IMpartment of Public Service, Staff Counsel l Three Rockefeller Plaza r
Albany, New York 12223 l '
Kaf y E.B McCleskef Hunton & Williams b 707 East Main Street ,
P.O. Box 1535 ]
Richmond, Virginia 23212 DATED: September 25,1987 ,
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