ML20236A381
| ML20236A381 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/13/1989 |
| From: | Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY |
| References | |
| CON-#189-8256 ALAB-902, LBP-88-24, OL-3, NUDOCS 8903170149 | |
| Download: ML20236A381 (37) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION W MAR 13 P1 :34 ATOMIC SAFETY AND LICENSING APPEAL BOARD
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Administrative Judges:
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- A v ;,,g.E BRANCH Christine N. Kohl, Chairman March-13, 1989 Alan S. Rosenthal (ALAB-911)
Howard A. Wilber
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SERVED MAR 131989 In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1)
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M_EMORANDUM AND ORDER In LBP-88-24, the Licensing Bohrd ruled on three emergency planning issues before it (the adequacy of the emergency broadcast system (EBS), school bus driver role conflict, and hospital evacuation) and also dismissed the intervening Governments (Suffolk County, the State of New York, and the Town of Southampton) from the remainder of the proceeding as a sanction.1 The Governments appealed their dismissal as well as the Board's disposition of the EBS and school bus driver issues.
In ALAB-902, we concluded that
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the Licensing Board had exceeded its authority insofar as it purported to dismiss the Governments from a portion of the proceeding pending before another Licensing Board, and we l
28 NRC 311 (1988).
8903170149 890313 p5o7' PDR ADOCK 05000322-G PDR
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L thereforeEreversed: LBP-88-24 to that extent.2-The
. Commission ultimately declined to review our jurisdictional ruling, leaving it intact.3 In an unpublished order issued November 9, 1988,Jhowever, the Commission stated-that it would decide the merits of the Governments' appeals from the dismissal order, but left for us to resolve in-the first instance the remaining issues en appeal (i.e., EBS and-school bus drivers).
Earlier this month, in CLI-89-2,-the Commission upheld the Licensing Board's dismissal of the Governments from all pending adjudicatory proceedings.4
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As the Commission succinctly stated, "[a]ll contested proceedings are now at an end."5 Thus, we are obliged to dismiss the Governments' remaining appeals from LBP-88-24.
Under long-established, Commission-endorsed practice, however, in the absence of an appeal we " review sua sponte
'any final disposition of a licensing proceeding that either was or had to be founded upon substantive determinations of significant safety or environmental issues.'"6 Usually we 2
28 NRC 423 (1988).
CLI-88-11, 28 NRC (December 21, 1988).
4 29 NRC (March 3, 1989).
5 Id. at (slip opinion at 36).
Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655, 14 NRC 799, 803 (Footnote Continued) i
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-undertake such review in proceedings that have.become uncontested becauri all of the interveners have either l'
withdrawn or declined to appeal -- unlike here, where they have been dismissed as a sanction.
We see no reason,.
L however, why that'should preclude sua sponte review here, given the purpose of such review:
protection of the public interest in' general (as opposed to a particular litigant's
-interest) by providing another independent level.of review of significant health, safety, and environmental issues on which a substantial evidentiary record already exists.7 l
Moreover, sua sponte review of the Licensing Board's 1
disposition of the school bus driver issue is especially-f appropriate, inasmuch as the Board's ruling is a direct.
consequence of our own prior remand of that. issue in ALAB-832, well before the circumstances existed that gave (Footnote Continued)
(1981) (quoting Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-571, 10 NRC 687, 692 (1979)).
See also Northern States Power Co. (Monticello Nuclear Generating Plant, Unit 1), ALAB-611, 12 NRC 301 (1980).
In a similar situation, in Consumers Power Co.
(Midland Plant, Units 1 and 2), ALAB-691, 16 NRC 897 (1982),
review declined, CLI-83-2, 17 NRC 69 (1983), we dismissed an intervenor's appeal after concluding that the intervenor's conduct amounted to a waiver of its appeal rights.
We nonetheless went on to conduct sua sponte review of the Licensing Board's decision.
Only where all the parties have agreed to a stipulated settlement of the contested issues, effectively resulting in a dismissal of the proceeding, have we declined sua sponte review.
Portland General Electric Co. (Trojan Nuclear Plant), ALAB-796, 21 NRC 4 (1985).
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I-4 rise to the decision to dismiss the Governments.
- Finally, the Commission did not impose the dismissal sanction retroactively so as to reject ab initio previously admitted and litigated contentions.
Nor did it vacate, affirm, or otherwise address the portions of LBP-88-24 still before us.
Indeed, the Commission explicitly " terminated" only the portion of this licensing proceeding that involves the 1988 emergency exercise, termed the "OL-5" docket.9 In these circumstances, we therefore find no reason to depart from our cuctomary practice and have reviewed sua spente the Licensing Board's disposition of the EBS, school bus driver, and hospital evacuation issues.10 We recognize, of course, that the Commission described CLI-89-2 as "the final adjudicatory decision in this matter" and instructed the Director of the Office of Nuclear Reactor 8 See 23 NRC 135, 152-54 (1986), reversed in part on other arounds, CLI-87-12, 26 NRC 383 (1987).
9 CLI-89-2, 29 NRC at (slip opinion at 36).
10
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Because the Governments' appeal was fully briefed and argued and our consideration of it was nearing completion when the Commission issued CLI-89-2, it would deny reality to claim now that we have given no consideration whatsoever to the parties' arguments on appeal.
Thus, given the unusual posture of this proceeding, our sua sponte review has been aided equally by the presentations of all the participants, past and present.
In keeping with the purpose and proper scope of sua sponte review, however, we do not address any of the procedural aspects of the Licensing Board's decision to which the Governments objected in their now-dismissed appeals.
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Regulation (NRR) to " evaluate each contention which remains outstanding as a result of this decision and [to] explain
. in a public meeting whether, and if so, how, each has been resolved."11 The stated purpose of this public review by the Director of NRR is "to assure that no safety issues remain unexamined before issuance of an operating license for the Shoreham facility."
Because we have already devoted considerable attention to several of those outstanding safety issues, we believe our views might well aid the Director and ultimately the Commission in their evaluation of them.13 Publicly providing those views in the context of sua sponte review is, in our opinion, fully consistent with CLI-89-2 and the responsibility generally vested in us by the Commission.
To that end, we offer the following essentially advisory opinion.14 11 CLI-89-2, 29 NRC at (slip opinion at 36).
Ibid.
See also id. at n.4.
In this connection, we note that another outstanding issue concerns the suitability of applicant's reception centers.
In ALAB-905, 28 NRC 515 (1988), reviewed declined (February 17, 1989), we remanded two matters to the Licensing Board for its further consideration.
See id. at 535 & n.75.
Thus far, that Board has taken no action on the remand.
- See, e.g.,
ALAB-900, 28 NRC 275, 284-85, petition for review denied, CLI-88-11, 28 NRC (1988).
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I.
EMERGENCY BROADCAST SYSTEM The Commission's' regulations require.that "means to provide early notification and clear instruction to the populace within the plume exposure pathway Emergency Planning' Zone [EPZ) have been established." 5 At one time applicant Long Island Lighting Company (LILCO) contemplated that this requirement would be' met in partjby a network of-radio stations in which a lead role would be played by WALK, located en Long Island.
Subsequent to a Licensing-Board determination-that the WALK network provided an adequate.
emergency broadcast system, WALK withdrew from participation in the system.
This development led the commission to l
direct that.the record be reopened on the EBS matter.
After an aborted attempt to substitute a radio station network headed by WPLR-FM located in New Haven, Connecticut, LILCO ultimately informed the Licensing Board that it proposed to re3y upon an already existing:EBS for Nassau and Suffolk Counties.
That EBS was established by the State 10 C.F.R. S 50.47 (b) (5).
See CLI-87-5, 25 NRC 884 (1987).
p See LILCO's Second Motion for Summary Disposition of the EBS Issue (June 20, 1988) [ hereinafter "Socond Motion"],.
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7 of New York and approved by the Federal Communications Ccmmission (FCC) in 1981.
In the event of a natural disaster or other emergency situation warranting communication with the public in those counties, it can be activated by federal, state, or local authorities.
The lead facility is WCBS, a 50,000-watt station located in New York City.
Should there be an emergency necessitating resort to the system, WCBS is first contacted.
It is then responsible for both (1) broadcasting any emergency informational messages provided to it, and (2) transmitting the messages to a network of more than 30 radio stations for dissemination by those stations to their Nassau/Suffolk audiences.18 After some procedural skirmishing, the Licensing Board entertained and then granted in LBP-88-24 LILCO's motion for summary disposition on the adequacy of the WCBS-based EBS.
The Board concluded that the materials offered in support of the motion demonstrated, without sufficient refutation by the Governments, that, by itself, WCBS provided full coverage to the Shcreham EPZ.
The Board went on to opine that, even were this not so, such coverage would be supplied by the entire network of stations.19 18 See id., Attachment 4.
' LBP-88-24, 28 NRC at 327-28, 331.
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The Licensing Board's determination that the signal strength'of WCBS will enable that station to' broadcast L
messages that will.be beard throughout the EPZ rested upon an engineering report and affidavit prepared for:LILCO'by Cohen and Dippell, P.C., Consulting Engineers, Radio and Tel'evision.20 That determination was reached despite the.
fact that the report itself indicates that the WCBS signal level does not meet throughout.the Shoreham EPZ the'FCC standard of 2.0 millivolts per meter (mV/m) for primary service to communities with populations in' excess of 2500 persons.21 7g.the contrary, according to the report,
[a]n analysis of the field strength measurements shows WCBS provides a maximum sigr,71 level of 2.35 mV/m and a minimum signal level cf 0.58 mV/m to the EPZ area.
Based on the measured radial method for determining AM service,.the WCBS 0.5 mV/m contour extends to a distance of 105 kilometers from the WCBS transmitter site.
The distance to other contours can be determined by reference to the attached graph of field strength versus distance.
A 0.5 mV/m signal is the FCC required for primary service to rural areas and communities with population less than 2500 20 See Second Motion, Attachment 6.
21 Two portions of the FCC regulations are pertinent to this issue.
" Primary service area" is that area wherein "the groundwave is not subject to objectionable interference or objectionable fading."
47 C.F.R. S 73.14 (1987).
The groundwave signal strength required to render primary service is 2.0 mV/m for communities with populations of 2500 or more, and 0.5 mV/m for communities with populations of less than 2500.
47 C.F.R. S 73.182 (e).
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persons, and this WCBS contour coversLthe
. entire EPZ'.
However,.al signal' strength of?2
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mV/m is required by the FCC standards to serve communities with population-in excess l-of 2500 persons l including " Census Designated.
Places" (CDP'a).
The EPZ' consists of numerous CDP's,and communities in excess of 2500 persons.-~
Significantly, the Licensing Board omitted this'last sentence in its excerpt from the Cohen'and Dippell report.
Its rejoinder, however, was that
[i]t is immaterial to a determination of adequacy of the' State EBS whether WCBS-meets the FCC criteria'as a provider of primary service in every portion of the EPZ.
The question before us is whether or not it can adequately notify residents of the EPZ in an emergency.
The Board-declines, however, to.put an absurd construction on a federal rule,'and we therefore do not accept.
the possibility that FCC has defined broadcast signal strengths for primary service that are too weak to be' received.
Even though the. consultant report does-not give'the minimum signal strength for adequate radio reception, the only reasonable interpretation of the federal criteria for primary stations cited by the consultant =is that a strength in excess of 0.5 mV/n provides acceptable reception.
It is uncontroverted that WCBS operates at maximum permissible power for AM ststions and that it provider a signal strength of at least 0.58 mV/m throughout the EPZ.
[Second]
Motion, Attach. 9.
The Board concludes that whether or not WCBS meets the FCC definition of a primary station within the EPZ, LILCO's consultant plainly intended to establish with the foregoing information that the signal strength of WCBS is adequate to provide emergency information to 22 Second Motion, Attachment 6 at 2 (emphasis added).
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I residents throughout the EPZ._ No material facts.
to the contrary have,been. presented thgg:would R
justify opposition to that conclusion.
This analysis ~does'not carry the day. -Specifically,.
the Licensing Board supplies no reasoned basis for brushing
-to one' side the FCC'2.0.mV/m. standard for primaryLservice.in-
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larger communities.
In this connection, we fail to-understand the Board's endeavor to justify its rejection'of-
-that standard'on the theory that the FCC would~not have
" defined broadcast signal strengths for primary service.that are too weak to be received."
Among other thinJs, the Board seemingly'did not_ focus upon_the fact that the different FCC signal strength standards are a result of the need to mitigate increased interference in more populous areas.24 In short, the crucial consideration is not whether a-particular broadcast signal is too weak to be received;-
rather, it is whether the signal'is strong enough to be heard over local interference.
Nor can we accept the Licensing Board's unsupported speculation that "LILCO's consultant plainly intended to-establish.
. that the signal strength of WCBS is adequate to provide emergency information to residents throughout the 23 LBP-88-24, 28 NRC at 327 (emphasis added).
4 See supra note 21.
See also 28 Fed. Reg. 13,572, 13,597 (1963).
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EPZ."25 - We have discovered nothing in the record of this proceeding to indicate that a signal strength of less than that required for routine broadcasts is adequate for the broadcast of emergency information.26 But, as earlier noted, the Licensing Board found in the alternative that, even if WCBS did not itself provide full coverage to the Shoreham EPZ, LILCO could rely upon the requisite coverage being supplied by the full EBS network of more than 30 radio stations on Long Island.27 The Board 2
LBP-88-24, 28 NRC at 327.
26 Our cursory review of the FCC's emergency broadcast system regulations, 47 C.F.R. Part 73, Subpart G, reveals no distinction in signal strength for routine and emergency broadcasts.
Tacitly acknowledging the lack of record and regulatory support for the Board's view, at oral argument LILCO's counsel suggested that we take official notice of his claim that "a higher quality of signal is necessary for music and the sorts of things that radios like to broadcast all the time as opposed to simple verbal messages which are a lot easier to get across."
App. Tr. 50.
We decline to do so.
For one thing, LILCO apparently did not call upon the Licensing Board to take such notice of that purported " fact" and, in any event, the Board did not do so.
More important, the Commission's Rules of Practice allow the taking of official notice only of "any fact of which a court of the United States may take judicial notice or of any technical or scientific fact within the knowledge of the Commission as an expert body."
10 C.F.R.
S 2.743(i).
It is doubtful at best that the asserted " fact" in question is "not subject to reasonable dispute" within the meaning of Rule 201(b) of the Federal Rules of Evidence, governing the judicial notice of adjudicative facts in the United States courts.
Nor does l
this Commission's " knowledge
. as an expert body" extend to the required quality of radio signals.
27 LBP-88-24, 28 NRC at 327-28.
12
.found that no evidence had been presented "that would raise a serious question as to whether an adequate warning to residents of the'EPZ could be delivered through the network O
of stations in the State EBS."
It also rejected the.
Governments' argument that, in the absence of assertedly required letters of agreement (presumably between LILCO and' the network stations), it cannot be assumed that the network stations will broadcast emergency messages.
The Board concluded in this regard that NRC regulations do not require such letters of agreement "where a preexisting agreement between the State and the broadcast industry complies with NRC guidance." '
The Board also stressed that no evidence-had been adduced to controvert the fact of this existing agreement.30 The record supports the Licensing Board's decision that the participants in the state-established EBS network will be both willing and able to broadcast messages throughout the EPZ in the event of a radiological emergency at Shoreham.
There is no evidence to suggest that the network is technically incapable of providing emergency broadcast information to the affected areas.
Indeed, in the absence 28 Id. at 328.
29 Ibid.
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at 329, 331.
13 of such evidence, it must be presumed that the State of New York and the FCC knew what they were doing in establishing and approving, respectively, a communications network designed to provide emergency information to the entire area of Nassau and Suffolk Counties.
Nor do NRC and FEMA regulations require more than the preexisting agreement between the state and the network stations to establish a presumption of a willingness to participate.
For instance, the only documentation mandated by FEMA relates to the
" station's or broadcast system's ability to participate in the public notification process."31 FEMA goes on to note that "[p} participation in a ' Local Emergency Broadcast System Operational Area Plan'
[e.g., the EBS for Nassau and Suffolk Counties} is considered satisfactory." 2 In this regard, it is noteworthy that, in announcing in the Federal Register the availability of FEMA-REP-10, FEMA observed that, in response to comments on earlier guidance, it had " replaced the requirement [in that earlier guidance] for written agreements that individual broadcasting stations will participate in the EBS with a requirement for documentation FEMA-REP-10, " Guide for the Evaluation of Alert and Notification Systems for Nuclear Power Plants" (November 1985), at E-2 (emphasis supplied).
32 Ibid.
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l; 14-1, indicating thatutheyLare able to participate in the EBS."33 In shorti. FEMA:obviouslyfproceeds'on the premise'that a
- station that undertakes: to becomeEa partL of an established:
EBS will. carry out in any emergency-(nuclear or otherwise)
~the' responsibilities it:has' assumed; 'In:the absence of NRC regulations or evidence to the contrary (and there is none in this record), we have no reason to conclude. otherwise.34 In sum, the-record does not establish that, _ standing alone, WCBS will provide the requisite EBS coverage..
Because, however, the record-contains nothing to rebut the presumption that such coverage will be supplied by the-entire multi-station network (a presumption arising from the-state's establishment and the FCC's approval of the network), we agree with the Licensing Board's ultimate-resolution of the EBS issue in LILCO's favor.
II.
SCHOOL BUS DRIVER ROLE CONFLICT Students attending schools in the Shoreham EPZ are transported in buses owned and operated by either a bus company under contract to provide such services or the 3 50 Fed. Reg. 43,084, 43,085 (1985) (emphasis supplied).
4 The fact that radio stations such as WALK withdrew from a LILCO-established EBS does not support the thesis that they will not participate in the state-established EBS (from which, insofar as the record reflects, they have not withdrawn).
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.15 school district itself.
Initially,Lthe LILCO emergency-l response plan relied ~ entirely upon the availability of those'-
resources to: implement'any early dismissel occasioned by a
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Shoreham emergency..More specifically, the plan contemplated that_the buses would'make the number of trips necessary_to-transport the students to either their homes-or a reception center.
In Contention 25.C, the Governments asserted that many of the drivers would experience a conflict between the discharge of their emergency duties and the fulfillment of perceived family obligations,.with the consequence that sufficient numbers of neither school buses nor drivers would be available to carry out the plan.
Thereafter, the role conflict issue was litigated in the context of not merely school bus drivers but, as well, individuals with other responsibilities in the event of a Shoreham emergency.35 In an April-1985 partial initial decision, the Licensing Board determined that, although some such conflict may occur, "the preponderance of the credible evidence of record establishes 35 Broadly speaking, the issue focused upon persons who, although having a function to perform in a Shoreham emergency, are not part of the LILCO-established Local Emergency Response Organization or its support organizations such as the American Red Cross, the U.S. Department of Energy, and local ambulance companies.
In addition to the school bus drivers, such unaffiliated individuals include teachers and some health care personnel.
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. that'ithis will not'be(a significant/ problem at Shoreham andL l
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- that aisufficient number lof emergency workers _-will respond in.altimely-fashion'to perfora their[ assigned dutiesi"36-
'Before the Licensing Board during.'the 1983-84 hearing,
. the Governments presented the results.of a survey'of..the school.-bus drivers in the Shoreham-EPZ -- both bus company.
_y employees and persons in the: employ'of a school district --
that. indicated thatjsignificant role conflict might occur.37
- But they failed.in their endeavor to' introduce' testimony related'tofa survey of volunteer firemen on the same_
subject.38' The Licensing Boardiconcluded that the firemen-survey was irrelevant, apparently accepting the NRC staff's
- view.that this was so because'the LILCO emergency response
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plan does'not rely on firemen.39 In agreement with the Governments on their appeal from Lthe' Licensing Board's resolution of the' role conflict issue, we determined ~that the: firemen survey had been erroneously excluded.
As we saw it, "the results of a, survey as_to the potential'for role conflict among firemen, if they had been LBP-85-12, 21 NRC 644, 679 (1985).
Cole, fol. Tr. 1216, at 2-8.
38 2
See fd,. at 12 16.
d
' Tr. 792.
See NRC Staff Motion to Strike Certain Prefiled Testimony'of"Suffolk County (November 28, 1983) at 2.
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I part of the emergency response, would provide insight into the likely. course of conduct of school bus drivers."40 This l
was because, "if a trained professional emergency worker i
such as a fireman would put family obligations ahead of the-discharge of any Shoreham emergency duties that might be assigned to him or.her,'it is a fair inference that an i
individual not in such a line of endeavor would encounter at least as great role conflict."41 In light of these considerations, we found ourselves unable, "[o]n the record now before us,
.-[to) make a finding that a sufficient number of school bus drivers can be relied upon to perform their duties if an accident occurred at Shoreham."42 We therefore remanded the matter to the Licensing Board for further exploration of this.
i limited issue.
Our instructions were these:
All-parties will be free to adduce additional evidence on the issue; at minimum, the Licensing Board is to accept the testimony related to the survey of volunteer firemen.
40 ALAB-832, 23 NRC at 153 (footnote omitted).
4 Ibid. (footnote omitted).
In this connection, we referred to our decision in Cincinnati Gas & Electric Co.
(Wm. H. Zimmer Nuclear Power Station, Unit No. 1), ALAB-727, 17 NRC 760, 772 (1983), in which we found that surveys of volunteer life squadsmen and firemen concerning the role conflict they would encounter raised "a serious question ao to whether bus drivers could be depended upon to carry out their responsibilities" in the event of an accident at that plant.
4 ALAB-832, 23 NRC at 154.
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Upon review of the evidence presented at the
'H reopened hearing, the Licensing Board should reconsider its prior findings and' conclusions regarding the potential.for role conflict among school bus drivers.43
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As earlier noted,.the original LILCO proposal provided for a multiple-wave evacuation of school children to be accomplished by bus drivers in the employ of, or under contract to, the various school districts within the Shoreham EPZ (hereinafter, " regular" bus drivers).
Following our. remand, however, LILCO materially altered its proposal to call for the single-wave evacuation of the children (i.e., each bus and driver participating in the evacuation would be required to make but one trip from a designated school to'a-designated reception center).44 In order to accommodate that alteration, LILCO further proposed to supplement the " regular" school bus drivers and their buses with LILCO-furnished drivers and buses.45 Specifically, LILCO offered to supply 613 trained drivers and 208 buses.40 i
Ibid. (footnote omitted).
See LILCO's Motion for Summary Disposition of Contention 25.C
(" Role Conflict" of School Bus Drivers)
(October 22, 1987) at 12-17.
Ibid.
46 Crocker, et al., fol. Tr. 19,431, at 52-54.
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- LILCO arrived at these numbers through.the following' J
m process.
To begin with, it undertook to ascertain how many drivers.and buses,would be necessary to evacuate the school population.
To this end, it first determined the-total student population within the EPZ on the basis ~of telephone surveys. conducted in July.1987 and April 1988 and the responses to interrogatories submitted to New' York State and Suffolk County.47 It then r..ssumed that, on any given. day, five percent of the total school population would be absent and 20 percent of the high school students in attendance.
would respond to an emergency by departing in either their own automobiles or those of friends.48 On the further premine that each. bus could transport 40 high school students or 60 students in lower grades,49 LILCO arrived at the conclusion that the single-wave evacuation would O
necessitate a total of 509 buses and drivers.
To meet their normal transportation needs, the school districts reportedly use a total of 301 buses and drivers. 1 That being so, LILCO reasoned that it would need to supply 47 Tr. 19,746.
48 Tr. 19,753-54.
Crocker, et al., fol. Tr. 19,431, at 50-51.
O Id. at 50.
51 Id. at 51.
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208 buses and an equal number of.so-called " primary"' drivers so as to reach'the 509 figure to effect a single-wave
-evacuation.52 Seemingly-recognizing the need to have backups for both'the " regular" drivers (employed.by'the l'
school districts and their contractors) and the " primary" drivers (in LILCO's employ), LILCO indicated its willingness' to have available 405 additional drivers.
Of those drivers, 301 would serve as backups for the " regular" drivers on'a one-for-one basis; the remaining 104 would backup, on a one-for-two basis, the 208 " primary" drivers.53 At the hearing below on the new LILCO proposal, much of the testimony focused upon the' role' conflict question.
On its analysis of that evidence, the Licensing Board concluded in LBP-88-24 that there was insufficient doubt respecting the availability of the " regular" drivers in a Shoreham emergency to require LILCO'to produce its own substitutes for those drivers.
In this connection, the Board pointed i
to historical evidence presented by LILCO that satisfied the Board that past emergencies had not resulted in role
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abandonment among bus drivers.
Moreover, according to the 52 Id. at 53.
53 Ibid.
54 28 NRC at 342.
Id. at 343.
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21 Board, emergency response organizations had not lost their effectiveness because of role abandonment during past-emergencies.56 With respect to the surveys of school bus drivers'and firemen put forth by the Governments, the Board found them of little probative value when compared to the evidence pertaining to' actual.past emergency responses.
On the strength of its role abandonment determination, the Licensing Board relieved LILCO of its offer to supply 8
backup drivers for the postulated 301 " regular" drivers.
The Board left unaltered, however, the LILCO commitment to provide 104 drivers as a backup for its own 208 " primary" drivers.59 LILCO had assumed this latter obligation because, in the words of a principal witness on the driver availability issue, "[i]n the interest of conservatism (LILCO) customarily recruits more emergency workers than are needed, providing a 150% call-out for all of its.
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Ibid.
57 Id. at 343-44.
58 Id. at 344.
' Ibid.
The Board opined that the 104 backup drivers would cover any driver shortfall that might result in a single-wave evacuation.
Ibid.
In making that observation, the Board left it to the staff to make certain that a sufficient number of buses will be available to permit such an evacuation.
Id. at 345.
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22-emergency worker positions."60 Thus, as a result of the
-Licensing Board's' determination that role abandonment would not occur in the ranks of the= regular drivers and that there is, therefore, no need to supply backups for them, LILCO now must supply only a total of 312 drivers (208 " primary" drivers plus 104 backups).
Our examination of the record indicates that the Board's determination rests on a very shaky foundation.
There is no dispute that, in the event of an accident at Shoreham, many of the " regular" drivers will be confronted with a role conflict -- i.e., they will have to choose between fulfilling promptly their assigned transportation duties cr, instead, first undertaking to ensure the safety
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-I and well-being of their families.
Rather, the issue involved here relates to the choice that the drivers are
.likely to make.
On this question, the record shows that the expert witnesses were in sharp disagreement.
- Moreover, neither the historical evidence nor the predictive surveys included in the record allow a confident judgment respecting the amount of role abandonment that is likely to occur and, i
therefore, must be taken into account in emer e.scy response planning.
But it is manifest that, contrary to the seeming Crocker, et al.,
fol. Tr. 19,431, at 53.
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belief of the Licensing Board, some role abandonment is a real possibility.
We reach this conclusion with full recognition of LILCO's historiedl evidence on the matter.
Among other things, the applicant's witnesses appearing on the role conflict issue in the 1983-84 hearing referred to the studies of several disasters that disclosed a measure of role abandonment among emergency workers.61 One such study, published in 1952, focused upon the response to three tornadoes and one shipyard fire.62 According to the author of that study, "[t]he great majority of persons interviewed who were involved in [ role conflict] dilemmas resolved them in favor of the family, or, in some cases, to friendship groups."63 A like observation resulted from studies involving emergency worker response to a 1953 flood in the 4
6 Netherlands; Texas tornadoes; and a hurricane.
Still further, two general studies of disaster responses published 61 Cordaro, et al.,
fol. Tr. 831, at 52-59.
Id. at 52-54.
See also Cole, et al.,
fol. Tr.
20,672, at 28.
63 Cordaro, et al.,
fol. Tr. 831, at 54 (quoting 1952 article by Lewis Killian).
64 Id. at 55.
65 Id. at 55-56.
66 Id. at 58.
T
. --g,
y, a
s s-
-24' lin-1958 included.the-rese' archers' notations <that?"[ flor'manya m
~
~
of the-' husbands / fathers.the' role of protector structured-actihity during-i:npact"67 and "[h]elpifor family members,',
close friends, and. neighbors'comes-first, then, but apparently;only then, other: victims ekn be looke'd after."68
.j Although supplying those. studies,.'LILCO's' witnesses attempted to minimize their' significance.-. The Licensing-Board was referred _to yet another study, published.in-1954,.
+
'that was said by the witnesses to reflect that," role
. conflict'does not result in role abandonment.if emergency workers are provided -- before an emergency -- with'a-clear idea of what.their emergency roles are."
Those witnesses went on to emphasize the importance of prior planning, stating that "[w]ithout planning,.. role conflict can, indeed, O
produce role abandonment.."
Along the same line, a~1ater-study presented:by the LILCO witnesses was described as establishing that-individuals without emergency roles tend to their families before volunteering, while individuals with clearly defined emergency duties fulfill those duties 67 at 56-57 (quoting 1958 dissertation by Charles W. Fogleman).
68
. at 57 (quoting 1958 book by William H. Form and Sigmund Nosow).
69
. at 62 (emphasis in original).
0
. at 64.
25 (albeit with a considerable degree of personal stress until 1
assured of the safety c' their familiec).
The same emphasis on role certainty surfaced in a still further report that addressed three specific emergencies and found that 80 to 90 percent of the emergency workers resolved their ole conflict in favor of the performance of their assigned duties.
)
on the remand, LILCO cited all e,f this evidence, as wel] as additional studies presented at the 1983-84 hearing that did not d3cclose any role abandonment by emergency 3
workers.
It then put before the Licinsing Board newer studies, published in varicus books and articles. 4 Those studies found no full role abandonment on the part of any 5
individual.
Another study involving bus drivers revealed, however, instances of late arrival for evacuation duty because concern for family had been given priority. 6 Interestingly, one cf the recently published studies -- in common with the older ones -- sounded the theme that it is 1
Id. at 64-65.
2 Id. at 66-67.
Crocker, et al., fel. Tr. 19,431, at 9.
74 Id. at 9-15.
75,1Md_.
76 Id. at 26-11.
26 1
important that emergency workers have a clear perception of their emergency roles.77 At neither the 1983-84 hearing nor the remand hearing last year did LILCO satisfactorily explain how the " regular" school bus drivers would obtain the role certainty that, according to its own witnesses, is nececsary to minimize the possibility that role abandonment will occur.
The fact is 1
tha t, while LILCO may have offered to provide the training that one of its witnesses opined " breeds emergency role certainty," 0 on the current record the offer has been accepted only to a small degree.
Moreover, because few of
(
the " regular" school bus drivers are involved to any extent in Shoreham emergency response planning, there is considerable relevance to the acknowledgment of the LILCO witness that, in the absence of planning, role conflict can produce role abandonment.80 Accordingly, even if all the opposing testimony on the subject were totally ignored, it would be most difficult to subscribe to the Licensing Board's view that the record,
establishes that role abandonment in the ranks of the 301 7
Id. at 9.
O Cordaro, et al.,
fol. Tr. 831, at 67.
Tr. 19,490-97, 19,693-94, 20,143.
O See supra p. 24.
b 27
" regular". drivers is not likely to occur.
If the other evidence.of-record is taken into account, any conceivable l
lingering doubt-in that regard evaporates.
y l
Beyond their reliance on some of the~ studies presented, and then discounted, by the LILCO witnesses, the Governments' witnesses asserted that one must consider the.
differing effect that different types of emergencies will have upon role conflict.81 In this connection, the witnesses pointed to the continuing. danger associated with a widespread radiological emergency.82 Because of that factor, they opined that, for present purposes, a Shoreham emergency should be analogized to the shipyard fire that led to considerable role abandonment, rather than to tornadoes which, once they pass through a particular area, no longer
. pose a significant hazard.83 Going beyond the Governments' critical appraisal of the weight that should be accorded to various studies of actual disaster response cited by LILCO, one of their witnesses, Dr. Stephen Cole, discussed three surveys that he had made
~
for the purpose of determining how particular emergency role players would resolve their role conflicts.
One was the 81 Cole, et al., fol. Tr. 20,672, at 27-40.
82 Id. at 32-33.
83 Id. at 35-37.
j
r l
l 1
1.
L l
28 l
l 1982 volunteer firemen survey, previously excluded by the Licensing Board but ordered to be considered on remand pursuant to ALAB-832.
A second covered school bus driverr, was also conducted in 1982, and had been admitted into evidence in 1983.
The third was a new volunteer firemen survey, conducted in 1988.84 Most of the interviewees in all three surveys stated that, in the event of a radiological emergency at Shoreham, they would ensure the safety of their families before undertaking their assigned emergency duties.85 The Licensing Board agreed with LILCO, however, that the surveys nonetheless were not instructive.
In its view, "an a priori attempt to predict human behavior from surveys of opinion must yield before the a posteriori evidence of what people have in fact done." 6 The Board elahcrated:
We have previously found [in the April 1985 partial initial decision} that Dr. Cole has used valid statistical and design methodology in his polls.
The problem does not lie with the technique but with the fundamental concept.
There is nothing inherent in the methodology that compels the conclusion that they have predictive value.
The poll measures opinion at the time it is taken.
It remains valid only as long as the opinions do not change.
But we must pass upon a plan that is expected to remain viable for 30 years.
Not only will the simple passage of time 84 Id. at 40.
85 Id. at 40-55.
86 LBP-88-24, 28 NRC at 343.
o n
~..
29 affect the real results that may occur, but the press of tne situation in an accident will dominate any response.
It'is, in fact, precisely that effect that LILCO's witnesses tell us will change the minds of:those.who now say they will
-not help.
We are inclined to agree with the.LILCO witnesses who say that the polls measure.
opposition to Shoreham and_present concern for' family.
That opposition'is well known, but the Commission'srulesdonotallowsuchopposgpionto, serve:as a basis for a licensing decision.
It may well'be.true that prior experience. is the most reliable indicator of-probable future response in an emergency situation.
On'this score, a LILCO witness referred to a study that, on the basis of interviews seeking
-to elicit the likely reaction of the public to a credible prediction of an earthquake, concluded that the reaction would produce large social and economic costs for the entire community.88 Yet, when such a prediction surfaced in the Los Angeles area, no such consequences were encountered.89 But it does not perforce follow that Dr. Cole's surveys were appropriately dismissed as having no possible value whatever on the question whether some role abandonment among the
" regular" school bus drivers is a sufficient possibility that Shoreham emergency response planning must take it into account.
The school bus driver survey included drivers for 87 Id. at 344.
88 Crocker, et al., fol. Tr. 19,431, at 40-41.
09 Id. at 41.
30 school districts within the Shoreham EPZ.90 Once again, most of those drivers have not been trained in emergency procedures or otherwise participated in advance emergency response planning.91 Inasmuch as.LILCO's own evidence indicates that a lack of such training and participation brings about role abandonment, it is fair to assume that, should a Shoreham emergency occur, at least some of the bus drivers will react as predicted in their interviews.92 Moreover, as we have also seen, the "a posteriori_
evidence [in the record] of what people have in fact done" sheds very little light on the probable response of school' bus drivers in the event of a radiological emergency.
In this regard, we need not pursue the matter of the extent to 90 Cole, et al., fol. Tr. 20,672, at 41.
91 See supra p. 26.
92 In ALAB-905, we addressed a survey of Long Island residents aimed at determining the number of individuals that would report for monitoring in the event of,an accident at Shoreham.
28 NRC at 527 n.42.
There, we agreed with the Licensing Board that such surveys are of little value in predicting the percentage of the population that would report for monitoring because that percentage will be significantly influenced by the information provided to the public at the time of the accident.
Ibid.
Here, we use the survey of bus drivers not to predict their actions during a Shoreham emergency, but rather as evidence that a significant percentage of those drivers may not participate in training or planning prior to such an emergency and, thus, as LILCO itself acknowledges, are susceptible to role abandonment.
31 which school bus drivers should be analogized to police officers, firemen, or other individuals who are in occupations that, by their very nature, require responses in emergencies.
For, irrespective of how that question might be resolved, there is very little experience in the United States with responses by anyone to radiological emergencies.
Insofar as the Three Mile Island accident in 1979 is concerned, there were no reported instancea of formal role abandonment but the Commonwealth of Pennsylvania noted a slightly higher than normal absentee rate among its employees and a volunteer fire department indicated that a few of its personnel left the area.
In a nutshell, then, on this record some role abandonment on the part of " regular" school bus drivers must be assumed and should be accounted for in LILCO's emergency planning.
The precise quantification of role abandonment, however, is quite another matter.
We believe that LILCO's own 150 percent planning assumption for its " primary" drivers provides a reasonable basis for determining the l
number of additional school bus drivers that are needed to l
serve as backups for the " regular" drivers.94 Thus, LILCO Cordaro, et al., fol. Tr. 831, at 71-76.
94 There was limited discussion on the record from the 1983-84 and remand hearings of the backup drivers who (Footnote Continued) l
t 32 should be required to provide 151 trained drivers to backup the 301 " regular" drivers in the employ of the school districts or their contractors.95 These " regular" drivers will therefore have the same 50 percent backup that, in "the interest of conservatism," LILCO has volunteered to provide for its own " primary" drivers in order to accomplish its new single-wave evacuation plan.96 This brings the total number of trained " primary" and backup drivers LILCO should be (Footnote Continued) substitute for the " regular" school bus drivers in normal circumstances.
- See, e.g.,
Cordaro, et al., fol. Tr. 9156, Vol. II, at 59-61; Tr. 9314-16; Doremus, fol. Tr. 9491, at 8-9; Tr. 20,174; Brodsky, et al., fol. Tr. 20,259, at 14, 21; Tr. 20,341-43.
The extent of the backup provisions varies significantly, however, among the bus companies or schcol districts.
Further, there is no indication that the Licensing Board relied on this evidence for its finding that LILCO did not need to provide any backup drivers for the
" regular" drivers.
Without additional record evidence that a sufficient number of backup drivers would be promptly available if needed, we cannot conclude that such drivers can be relied upon to compensate for any role abandonment on j
the part of the " regular" drivers.
~
If, in the course of sua sponte review, we conclude
~
that corrective action adverse to a party's interest is necessary, we ordinarily afford that party an opportunity to address the matter.
See Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants),
ALAB-689, 16 NRC 887, 891 n.8 (1982).
Here, in light of the full briefing and argument prior to the Commission's decision rendering this proceeding uncontested, there is no need to solicit LILCO's views once again on the number of backup bus drivers necessary to effect a school evacuation.
96 See supra pp. 21-22.
o j
33 required to provide to 463 -- far fewer than the 613 to which LILCO was once willing to commit.9 The remaining portions of the Governments' appeals from LBP-88-24 are dismissed.
In the exercise of our sua sponte review authority, however, we have reviewed Parts I, II, and III of LBP-88-24.
For the reasons stated in this advisory opinion, we would affirm the Licensing Board's disposition of the emergency broadcast system issues (Part I).
We would modify the Board's disposition of the school bus driver role conflict issue (Part II) so as to add the requirement that, in the event of a radiological emergency at Shoreham warranting evacuation, LILCO supply 151 (i.e., an additional 50 percent) trained bus drivers as backups for the drivers in the employ of, or under contract to, the school districts.
The Licensing Board's disposition of the hospital evacuation issue (Part III) requires no corrective action in our view and, accordingly, we would affirm.
9 We note that although there is an obvious relationship between drivers and vehicles, our remand in ALAB-832 did not embrace bus availability.
That matter is left to the oversight of the staff in the performance of its continuing regulatory responsibilities.
See supra note 59.
y w
J 34
. It-is so ORDERED.
FOR THE APPEAL BOARD 2 _, a fu hA
, = -,4
~
Barbara A...Tompkins Secretary to the Appeal' Board O
UN8TED STATES OF AMER 8CA NUCLEAR REGULATORY COMMISSION In the Matter of 1
I LONG ISLAND LIGHTING COMPANY l
Docket No.(s) 50-322-OL-3 I
(Shoreham Nuclear Power Station) i I
I l
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing AB MEMORANDUM AND ORDER have been served upon the following persons by U.S. mail, first class, except as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Administrative Judge Administrative Judge Thomas S. Moore.
Alan S. Rosenthal Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Reculatory Commission U.S. Nuclear Requ1 story Commission Washington, DC 20555 Washington, DC 20555 Administrative Judge Administrative Judge Howard A. Wilber Christine N. Kohl. Chairman Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Administrative Judge Administrative Judoe Jerry R. Kline Frederick J. Shon Atomic Safety and Licensing Peard Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Administrative Judge Edwin J. Reis, Esc.
James P. Gleason, Chairman Office of the General Counsel ASLBP U.S. Nuclear Regulatory Commission 513 Gilmoure Drive Washington, DC 20555 Silver Spring, MD 20901 W.
T. Reveley, !!!. Eso.
C. K. Mallory. !!!. Eso.
Hunton & Williams Hunton k Williams P.O. Box 1535 2000 Pennsylvania Avenue. N.W.
Richmond, VA 23212 Washington, DC 20036
Docket Noo(s)50-322-OL-3 AB MEMORANDUM AND ORDER Herbert H. Brown,'Esq.
Lawrence C. Lanpher, Esq.
Kirkpatrick k Lockhart Kirkpatrick & Lockhart South Lobby - 9th Floor South Lobby
.9th Floor 1800 M Street, N.W.
1800 M Street, N.W.
Washington, DC 20036 Washington, DC 20036 Stephen B. Latham, Esq.
Anthony F. Earley, Jr., Esq.
Twomay, Latham & Shea General Counsel 33 West Second Street Long Island Lighting Company Riverhead, NY 11901 175 East Old Country Road Hicksville, NY 11801 Nora L. Bredes Dr. Robert Hoffman Executive Coordinates Coalition for Safe Living Shoreham Opponents Coalition P.O. Box 944 195 East Main Street Huntington, NY 11743 Smithtown, NY 11787 Barbara Newman Monroe Schneider Director, Environmental Health North Shore Committee Coalition for Safe Living P.O. Box 231 P.O. Box 944 Wading River, NY 11792 Huntington, NY 11743 William R. Cumming, Esq.
Jay Dunkleberger Federal Emergency Management Agency New York State Energy Office 500 C Street. S.W.
Agency Bldg. 2, Empire State Plaza Washington, DC 20472 Albany, NY 12223 Philip McIntire Fabian G. Palomino, Esc.
Natural k Technological Hazards Div Special Counsel to the Governor Federal Esercancy Management Agency Office of the Governor 26 Federal Plaza, Room 1349 State Capitol, Room 229 New York, NY 10278 Albany, NY 12224 Robert H. Feller, Esc.
The Hb9erable Assistant Attorney Edward J. Markey, Chairman New York State Department of ATTNi Linda Correia Environmental Conservation Subcosaittee on Energy Conservation and 50 Wolf Road Power Albany, NY 12233 House Committee on Energy and Commerce Washington, DC 20515
~
Docket No.(s)50-322-OL-3 AB MEMORANDUM AND ORDER l
l Jonathan D. Feinberg, Esq.
l Staff Counsel Alfred L. Nardelli ' Esc.
New York State Public Service Assistant Attorney General Commission New York State Department of Law 3 Rockefeller Plaza 120 Broadway, Room 3-118 Albany, NY 12223 New York, NY 10271 Martin B. Ashare, Esq.
Peter Bienstock, Esq.
Suffolk County Attorney New York State Department of Law Suffolk County Offices -
120 Broadway, Room 3-118 H. Lee Dennison Building New York, NY 10271 Veterans Memorial Highway Hauppauge, NY 11788 Joel Blau Councilman Director, Utility Intervention Douglas J. Hynes State Consumer Protection Board Vermont Department of Public Service 99 Washington Avenus 120 State Street Albany, NY 12210 Montpelier, VT 05602 The Honorable Alfonse M. D'Amato ATTN: ELAINA NEWPORT, 520 SHOB United States Senate Washington, DC 20510 Dated at Rockville, Md. this 13 day of March 1989 Office of the Secretary of the Commission 1
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