ML20236H418

Lilco Views on Issues & Schedule in Realism Remand.* Pleading Does Not Take Into Account New Amend to 10CFR50.47. Lilco Will Address Effect of New Rule in Reply Due on 871109.W/Certificate of Svc

ML20236H418
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	10/30/1987
From:	Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#487-4721 CLI-86-13, OL-3, NUDOCS 8711040110
Download: ML20236H418 (20)

Text

_

r V72-/ uLCO, October 30,1987 0

00LKETEE.

U%C i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '87 gy -2 P4 :35  !

i FFICjCiStcWiny Before the Atomic Safety and Licensing Board hhERVICE In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) ) j 1

LILCO'S VIEWS ON THE ISSUES AND SCHEDULE IN THE REALISM REMAND This is LILCO's response to the Board's Memorandum to the Parties, dated I October 8,1987, in which the Board asked the parties to express their views "on what l are the matters to be heard and decided under the Commission's remand in CLI-86-13, j 24 NRC 22 and to submit a proposed procedural schedule for the proceeding." Memo-randum to the Parties, ASLBP No. 86-540-08-OL, at 1 (Oct. 8,1987).

l This pleading does not take into account the new amendment to 10 CFR l

1 5 50.47(c)(1) and 10 CFR Part 50, Appendix E, promulgated by the Commission only yes- I terday. LILCO believes that some of the views stated below may have to be modified in 1

light of the new rule. LILCO will address the effect of the new rule in its reply, cur-rently due November 9,1987.

I. Issues to be Heard i Only nine functions are at issue in the " realism doctrine" remand. The original ten functions, as stated by the Commission, were the following:

1. guiding traffic;

2. blocking roadways, erecting barriers in roadways, and channeling traffic; 8711040110 871030 A PDR ADOCK 05000322 g1P G PDR 3

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3. posting traffic signs on roadways; ,

4. removing obstructions from public roadways, including t ing private vehl-cles; i [ ,

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5. activating sirens and directing the broadcasting of emergency broadcastf system messages; p /

6. making decisions and recommendations to the public concerning protecti'ro( N

actions;

7. making decisions and recommendations to the public concerning protective ,)

actions for the ingestion exposure pathways; j

8. making decisions and recommendations to the public concerning recovery l and reentry;

9. ' dispensing fuel from tank trbc6 to automobUes along roadsides; and

10. pedorming access control at the Emergency Operations Center, the relo-cation centers and the EPZ perimeters. 3 CLI-86-13, 24 NRC 22, 30-31. The number bI functions at issue hap r,ince been reduced l

e to nine; function 3, posting traffic signs on roadways, is now moot, because LIfCO has deleted from its plan the provisions for posting such signs. Also, with respect to Con-tention 10, " access control" at the EOC and relocation centers is. no longer in issue. See l

Memorandum and Order, at 39 (Sept.17,1987), cited below. ',

The Commission provided the followirg guidance on the issues to be heard on ,re-r i mand: ,

In point of f act, there are questions about the f amil-larity of State and County officials with the LILCO plan, about , how much delay can be expected in.

alerting the public and in making decisions and ree-:

commendations on protective actions, or in making , <

decisicns and recommendations on recovery and rer "

entry, and in achieving effective access controls.

The record tells us that an evacuation without traf-I fic controis would be delayed from 11 to 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />, but' '

how important is this time delay? For which See-narios, if any, does it eliminate evacuation as a via-ble protective action?

To answer these questions, more information '

is needed about the shortcomings of the LILCO plan , i in terms of possible lesser dose savings and pro- '

tective actions foreclosed, assuming a best-effort l

+

l l

l State and County response using the LILCO plan as the source for basic emergency planning information j and options. l CLI-86-13, 24 NRC 22, 31-32 0986). Also, the Commission concluded that "LILCO's 1 plan should be measured against a standard that would require protective measures that are generally comparable to what might be accomplished with governmental coopera- j tion." Id., 24 NRC at 32.

l The issues to be heard must be shaped by two established facts: )

1. LILCO has provided the physical resources (people, equipment, and procedures) to perform all nine ,

functions still at issue under Contentions 1-10 with- l out the help of the State or County; only the ab- '

sence of legal authority and the lack of participation by the State and County prevent the LILCO-only i plan from being fully adequate.

2. The State and County would use their "best effort" in a real emergency. I From these f acts it can be seen that the fundamental issue is this:

With respect to the nine functions at issue, would New York State and Suffolk Countf, using their best efforts, act in an emergency so as to lessen signifi-cantly the health and safety of the public as com-pared to the LILCO plan?

It is already established that the State and County would use best efforts and would maintain contact with LEROM in an emergency. What are lef t in issue are, for each of the nine functions, the following propositions:

1. LERO, LILCO, the NRC, FEMA, and DOE could communicate information z to the State or County in a timely f ashion.

2. State and County personnel, taking into account information from LERO, LILCO, the NRC, FEMA, and DOE, could make timely decisions about the public health and safety. ,

1/ Number 46 of the Statement of Facts attached to LILCO's motion for summary disposition says that the State and County "would attempt to stay in contact w'ith ,

LILCO or LERO or both."

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f' 3. The State and County would not refuse to do something specified in the q ./ LILCO plan if refusing to do it would harm the public health and safety. )

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4. If any of the nine functions were necessary to protect the public health and safety, the State or County would either perform the function with their' s

own quanlied personnel or authorize LERO to perform it. s. .g j If the evidence shows that one or more of these propositions is false, then LILCO may not be able to meet the Commission's requirements, as interpreted prior to the new rule 3 promulgated yesterday.

, v j The Board has indicated that LILCO's burden is to prove not only what the State I q , e 3 7

and local governments "can" do but wha,t they "will" do in an emergency. The legal o > i t

h, standard is that rJequats' protective medsures "can and will be taken." 10 C.F.R. 1 o S 50.47(a) (1987). c And the Board has fodnd 'that the " Commission in its remand in CLI- -

~

86-13 exputs the Board to determine what the interveners' response will be." Memo-randum and Ord]er, a& 27 (Sept.17,1987).

But this'does not mearl that LILCO must, prove the intent of any State or County i','

employee at the tima of sodid future accident we already know that the intent would 1

, .i be to protect tb4public health and safety, and from that much else can be concluded.

And it does not man tJ;$t LILCO must somehow force State or County employees to 'l 4

state that they would perfbrm,certain acts in the future.

./ i

..I  ;

What, then, does it mean to " prove" tha(presently uncooperative governments i /

would do something in a future, hypothesized emergency? It means simply that if the

% tools and information State and County officials need are available (either from LILCO or from some other source), if using thosdresources would better sethe the public than .

\

a not using them, and if the cognizant State or local officials are not somehow incapacl-1 tated (for example, by ignorance)(com u ng them, then it must be taken as proved that i l

3 . s i i the officials would in fact use theat.

Nor must LILCO prove precisely what the State and County would do, step by step, in a particular hypothetical emargency. The Commission's regulations are based F

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in concept on planning for a " spectrum" of accidents. Hence in no case, even where state and local governments are doing the planning, must the license applicant prove precisely what would happen in any given accident. In this case (as in any other case) the nature of State and County participation would doubtless vary depending on the speed of onset of the accident as well as other factors.E Thus, as in any other case, i

what is to be proved is that the resources and procedures are available to deal with a j i

spectrum of accidents; but here the additional question has been raised whether there is l any significant obstacle to those resources being used under the authority of State or County officials.

In this pleading, below, LILCO states the issues it believes are raised by the l Commission's remand order (CLI-86-13), as interpreted by the Board's September 17  ;

Memorandum and Order but without consideration of the Commission's new rule.

LILCO does not believe that all of the issues stated below are necessary to a decision, since a decision on some of them in LILCO's favor would eliminate the need to decide others. .

One issue that may have to be resolved is legal rather than factual. It involves the difference between " delegation of the police power," which Cuomo v. LILCO holds .

is unlawful, and "deputization" or making use of private resources, both of which are lawful. Interveners appear to be arguing that the State and County governments could not, even if they wanted to, authorize LERO personnel to perform specific acts needed to protect the public in an emergency. This, LILCO submits, is quite clearly not the case.

2/ This principle is, in fact, evident from New York State law. In N.Y. Exec. Law Article 2-B, governing " State and Local Natural and Man-Made Disaster Preparedness,"

the local government is the "first line of defense" in times of disaster, with the State providing " appropriate supportive services to the extent necessary." N.Y. Exec. Law, Art. 2-B, S 20.1.a. But whenever the Governor finds that a disaster has occurred or may be imminent for which local governments are unable to respond adequately, he de-clares a disaster emergency and the State takes over command-and-control of the re-sponse. Id. S 28.

With respect to the nine functions still in issue, the issues _ to be' heard are the following:

1. Guiding Traffic Contention 1 reads as follows:

LILCO is prohibited by law from directing traffic.- N.Y. Veh. & Traf. Law SS 1102, 1602 (McKinney); N.Y. Penal Law SS 190.25(3), 195.05, 240.20(5) (McKinney); N.Y. Transo. Corp. Law S 30 (McKinney). Under the LILCO Plan, LILCO employ-ees designated " traffic guides" are expected _to di-rect or. " guide" traffic to ensure that evacuees fol-low the evacuation routes identified and prescribed by LILCO in the Plan and to " discourage" noncompil-ance with those routes. (See OPIP 3.6.3, at 6a-7 and Attach.1 and 4 thereto; Appendix A " Traffic Con-trol," at IV-5 e_t seg.) These portions of the Plan, therefore, are incapable of implementation.

Further, LILCO's lack of authority to direct traffic renders its evacuation time estimates, re-quired under 10 C.F.R. Part 50, Appendix E, 5 IV, and NUREG-0654 S II.J.8 and Appendix 4, inaccu-rate. LILCO's evacuation time estimates (Appendix A at V-3, V-8; OPIP 3.6.1, Attach. 2) and the com-puter model from which they are derived, assume  ;

that all persons will use only the prescribed evacua- = (

tion routes. (See Appendix A at IV-19, V-2).. In fact, i however, since LILCO's traffic guides are prohibited by law from directing traffic, LILCO will not be able to ensure that motorists will use only the prescribed routes, rendering the LILCO evacuation time esti-mates inaccurate. Thus, LILCO does not comply with 10 C.F.R. S .50.47(b)(10), Part 50, Appendix E, S IV, and N UREG-0654 SS II.J.8, J.9.5, J.10, and Ap-pendix 4. Without LILCO's assumption that evacu-ees will follow prescribed evacuation routes, the LILCO evacuation time estimates would increase substantially.

The Board said this in its September 17,1987 Memorandum and Order: 1 In dealing with Contentions 1 and 2 the Board  !

finds some difficulty separating the Applicant's "re-alism" and " immateriality" arguments. Clearly, if the guidance and control of traffic contributes little i or nothing to the safety of the public, then the man- ,i ner in which such guidance is accomplished is of no great consequence. When we last considered the i

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q notion that an uncontrolled evacuation might suffice  ;

to protect the public we found: "It_is evident.that 1 I

the unplanned evacuation . . . will not meet the reg-ulatory requirements . . . ." 21 NRC.644, 917. The Commission's subsequent remand of the issue of im-materiality has made that concept less " evident".

Nevertheless, Appilcant has not raised immateriality as. a ground for. summary. disposition, and _we are .

ruling solely on the Applicant's motion. Further, our i

)

previous statement was not made in a vacuum. We prefaced it with the notion, acknowledged by the j

Applicant, that the time differential between con- .j trolled and uncontrolled evacuation might-serve to limit the optional protective measures in such a way as to increase dose. - {Id.) We.found that'a guided evacuation is a safety feature, and that finding has not been overturned. The question of how traffic will be guided and by whom is indeed material, and we cannot rule on the ultimate issues in this~ case while so much uncertainty surrounds that question.

Memorandum and Order, at 35 (Sept.17,1987). The following issues are raised:

Traffic

1. If an evacuation of the EPZ were uncontrolled. (that is, without traffic-guides and channeling of traffic) would the impact on the public health and safety be significant, compared to the impact if the LILCO traffic plan <

were implemented?

2. Would State or County officials, using best efforts, slow down an evacuation to make it longer than the evacuation times, either controlled or i uncontrolled, under the LILCO plan?

3. How would LERO secure permission from the State or County to have LERO traffic guides direct traffic until police officers could take over?

2. Blocking Roadways, Erecting Barriers in Roadways, and Channeling Traffic Contention 2 reach as follows:

LILCO is prohibited by law from blocking roadways, setting up barriers in roadways, and channeling traffic. N.Y. Veh. & Traf. Law S 1114 '

(McKinney); .N.Y. Penal Law SS 190.25(3), 195.05, 240.20(5) (McKinney); N.Y. Transp. Corp. S 30 -l (McKinney). Under the LILCO Plan, LILCO em-  :!

ployees are expected to implement various traffic j control measures, including those listed above, to ensure that evacuees follow the evacuation routes prescribed by LILCO. (Appendix A, S IV.) LILCO's evacuation time estimates assume- that ~ traffic q

_ _ _ - - = -

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control devices such as roadblocks, prescribed turn l movements, channelization treatment, one-way )

roads and blocking lanes on the Long Island Ex- 1 pressway will be implemented and effective in di-recting and controlling evacuation traffic. -(See )

i_d.) Because LILCO ~and its " traffic guides" lack ']

legal authority.to implement such traffic controls 1 (see also FEMA Report at 2-3, 10-11), LILCO can- j not rely on the use of traffic control devices to en- i sure the use of prescribed evacuation routes. As a _j result, LILCO's evacuation time estimates are un-realistically low and the Plan falls to comply with 10 C.F.R. S 50.47(b)(10), Part 50, Appendix E, S P'.

and NUREG-0654 SS II.J.8, J.9, J.10, and Appendix 4.

The following issues are raised:

Blocking Roadways .j

1. If the provisions in the LILCO plan for blocking roadways, erecting barriers in roadways, and channeling traffic were not implemented, would the im-pact on the public health and safety be significant, compared to the impact -

if the LILCO plan were implemented?

2. How would LILCO explain to the State and County, at the time of an emer-  !

gency, the provisions in the LILCO plan for blocking roadways, erecting barriers in roadways, and channeling traffic?

3. Would the State and County decline to block roadways etc., or authorize LERO to do so,if declining to do so would make the evacuation slower?

l

3. Posting Traffic Signs on Roadways This issue is moot, as noted above.

4

4. Removing Obstructions from Public Roadways, Including Towing Private Vehicles ]

]

Contention 4 reads as'follows:

LILCO is prohibited by law f rom removing ob- ]

structions from public roadways, including the towing of private vehicles. N.Y. Penal Law S 165.05 .

(McKinney). . The LILCO Plan provides that " road crews" made up of LILCO employees will remove obstacles from roadways by using LILCO tow trucks

. 1 and line trucks. (Plan at 4.4-3; OPIP 3.6.3, at 2 and l Attach. 2 thereto.) Because LILCO is prohibited by law from towing private vehicles and removing ob-stacles from public roadways, this aspect of LILCO's 1

Plan cannot and will not be implemented. As a re-sult, the Plan fails to comply with NUREG-0654 S II.J.10.k.

The Board said this:

Equally clearly, one cannot say from the present record how these obstructions would be removed, who would remove them, or how their removal would be coordinated with such other functions as ..

guiding traffic and selecting alternate evacuation routes. It is not clear who would be' in overall.

charge of a clear and well planned response.

Memorandum and Order, at 36 (Sept.17.-1987). The following issues are raised:

Towing

1. How would LERO get permission from State or County authorities to re-move obstructions?

2. If LERO were not given permission to remove obstructions, would the State or County nevertheless use LERO equipment, under State or County con-  ;

trol, to remove obstructions? '

3. Do the State or County have resources (la, vehicles and drivers) that would be used to remove obstructions?

5. Activating Sirens and Directing the Broadcasting of Emergency Broadcast System Messages Contention 5 reads as follows:

LILCO is prohibited by law from activating sirens and directing the broadcast and contents of j emergency broadcast system ("EBS") messages to thel .

public. N.Y. Penal Law 55 190.25(3),~ 195.05 "

(McKinney); N.Y. Exec. Law S 20 e_t sea.

(McKinney). Under the LILCO Plan, LILCO employ-  ;

em are expected to order that sirens be activated. j They are also expected to determine the contents of  ;

EBS messages, to determine.that an EBS broadcast i should be made, and to direct that such broadcast "j e OPIPs 3.3.4 and 3.8.2.) Because LILCO occurs. . (S_e employees are prohibited by law from performing such actions, the LILCO Plan cannot and will not be I implemented, and the Plan falls to comply.with 10 C.F.R. 5 50.47(b)(5) and NUREG-0654 SS II.E.5 and E.6. Moreover, in assigning such functions to LILCO' employees, the Plan falls to comply with 10 C.F.R. I Part 50, Appendix E, S IV.D.3. l l

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I The Board said this about sirens: I We cannot, however, reach any reasoned conclusion  ;

regarding the Commission's mandate to us to discov- '

er the effect of a "best efforts" response on such things as dose if we do not know whether, when, or by whom the sirens would be activated.

Memorandum and Order, at 30 (Sept.17,1987). The Board said this about EBS mes-sages:

[T]he presence in our record of the affidavits pres-ented by the Interveners leaves it unclear whether I the New York State system, the LILCO system, {

some other system, or no system at all would be used l in the event of an emergency. It is also unclear j whether the messages prepared by LILCO or some I other as yet unapproved set of messages would be i used. Further, it is unclear who would decide when to broadcast the EBS messages and by what system. l As with the siren sounding issue, we cannot i resolve the questions surrounding the effect on the i public health and safety of ad hoc government par- I ticipation without a more exact picture of the Gov-ernments' intended behavior. What EBS system will l be used? How and at whose direction will it be acti- I vated? What messages will it broadcast? We shall j require evidence on these matters. I Memorandum and Order, at 31 (Sept.17,1987). There are two EBS's, the one addressed  !

in LILCO's motion for summary disposition (which we will call the " State EBS") and the  ;

special EBS organized by LILCO for Shoreham emergencies only (the "LILCO EBS").W The following issues are raised:

Sirens and EBS

1. Would the State or County permit or direct LILCO to activate the sirens if the public needed to be alerted to an emergency?

2. Would the State or County refuse to permit information about the accident to be broadcast to the public?

3/ LILCO will be submitting the details of the LILCO EBS to the Board within the next few days.

3. Would the State or County broadcast confusing, misleading, inaccurate, or inconsistent information to the public?

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6. Making Decisions and Recommendations Concerning Protective Actions i Contention 6 reads as follows:

LILCO is prohibited by law from making de-cisions and official recommendations to the public l as to the appropriate actions necessary to protect l the public health and safety, including deciding ]

upon protective actions which will be communi-cated to the public. N.Y. Penal Law SS 190.25(3),

195.05 (McKinney); N.Y. Exec. Law 5 20 e_t seg.

(McKinney). Under the LILCO Plan, all command and control functions, as well as all management and coordination of the entire emergency response, are to be performed by various LILCO employees or, in the case of the " Radiation Health Coordina-tor," by an unidentified LILCO " Contractor." (See Plan at 3.1-1; OPIPs 2.1.1, 3.1.1, 3.6.1.) Thus, con-trary to 10 C.F.R. Part 50, Appendix E, 5 IV.A, LILCO employees and contractors rather than

" State and/or local officials" are identified as re-sponsible for planning, ordering, controlling and implementing the offsite response including appro-priate protective actions. Because LILCO is pro-hibited by law from performing such functions, its 1 Plan cannot and will not be implemented, and it I falls to comply with 10 C.F.R. SS 50.47(b)(5),  !

50.47(b)(6), 50.47(b)(10), and NUREG-0654 SS II.E.5, J E.6, E.7, II.G, II.J.9 and J.10.

The Board said this: l l

In order to decide the fundamental issues in this I case, we require additional evidence on the ques-  !

tions: Who will assume charge in the event of a ra- j diological emergency at Shoreham? Who will de-cide when protective actions are required? What criteria will the decision-maker (or decision-makers) use to determine the appropriate pro-tective actions?

Memorandum and Order, at 33 (Sept.17,1987). The following issue is raised:

Decisions

1. Would State or County make the decision that certain people should shelter i or evacuate, if they had the necessary information from LERO, LILCO, the NRC, FEMA, and DOE 7 i

l 7 & 8. Making Decisions and Recommendations to the Public to the Public Concerning Protective Actions for the Ingestion ExDoSure Pathways and Recovery and Reentry Contention 7 reads as follows:

LILCO is prohibited by law from making deci-sions and official- recommendations to the public concerning protective actions for the ingestion ex-posure pathway. N.Y. Exec. Law 5 . 20 et se_q.

(McKinney); N.Y. Penal Law S 190.25(3), 195.05 (McKinney). The LILCO Plan provides that various LILCO employees and an unidentified LILCO " Con-tractor" will be responsible for determining, making:

to the public, and implementing protective action I recommendations for the 50-mile ingestion exposure pathway EPZ. (See Plan, S . 3.6, OPIP. 3.6.6.) Be-cause LILCO employees and contractors are prohity-ited by law from performing these actions, the pro- .

posed ingestion pathway EPZ protective actions cannot and will not be implemented. Therefore, the  ;

Plan falls to comply with 10 C.F.R. SS 50.47(b)(10),

50.47(c)(2), Part 50, Appendix _ E, 5 IV.A.8, and NUREG-0654 S II.J.11.

Contention 8 reads as follows: l LILCO is prohibited by law from making deci-sions and official recommendations to the public' j concerning recovery and reentry. N.Y. Exec. Law 5 20 e_t s_eg. (McKinney); N.Y. Penal Law S 190.25(3),

195.05 (McKinney). The LILCO Plan proposes that short-term and long-term recovery and reentry op-erations will be performed by LILCO' personnel and contractors following a radiological emergency at Shoreham (Plan at 3.10-1 and 3.10-2; OPIP 3.10.1).

LILCO identifies no non-utility entity, with neces-sary authority, which has agreed to undertake the initiation or implementation of the recovery and re-entry processes. Since, under the LILCO Plan, com-mand and control functions are assumed by LILCO, )

and under New York law, LILCO does not have the authority to perform recovery and reentry func-tions, recovery and reentry cannot be initiated or implemented. The Plan thus falls to comply with 10 C.F.R. SS 50.47(b)(1), 50.47(b)(13),' and NUREG-0654 S II.M.

The Board dealt with this Contentions 7 and 8 together, saying this: ,

Here the question is one concerning exactly. what would occur if LILCO proceeded independently while the State and local Governments did ,

something unspecified to further the same ends.

J

It is by no means clear to the Board at this time that the two groups would not work at cross purposes, nor is it clear that if LILCO simply withdrew the resulting actions by the Governments, presently unspecified, would comply with NRC regu-lations.

The possible participation by local authorities and l the "best efforts" assumption do not combine to as-sure that proper reentry and recovery procedures will either be evolved or enforced without some knowledge concerning who will decide and by what standards. We must agree with the Intervernors' po-sition that the record does not support a conclusion that the proper decisions, recommendations, or ac-tions concerning recovery and reentry would mate-rialize.

I Memorandum and Order, at 38-39 (Sept.17,1987). With respect to Contentions 7 and 8, f

the following issues are raised:

{

Decisions About Ingestion Pathway I i

1. Who would make decisions and official recommendations concerning pro- l tective actions for the ingestion exposure pathway?

Recovery and Reentry

1. Who would make decisions and official recommendations to the public con- i cerning recovery and reentry?

2. Would LERO would make decisions and recommendations independently of the State and County?

3. Would LERO use standards different from those used by the State and County?

9. Dispensing Fuel from Tank Trucks to Automobiles Along Roadsides Contention 9 reads as follows:

LILCO is prohibited by law from dispensing fuel from tank trucks to automobiles along road-sides. Suffolk County Sanitary Code, art.12; Code of the Town of Brookhaven, ch. 30, art. X. 'he LILCO Plan provides that LILCO fuel tank :s will be stationed along evacuation routes tc .ist motorists who run out of fuel. These trucks . vill

4 dispense up to 3 gallons of fuel per vehicle to vehi-cles that have run out of fuel. (Plan, Appendix A at i IV-176.) However, LILCO is prohibited by law from distributing fuel to motorists on the roadsides; this .

aspect of the LILCO Plan cannot and will not be im-plemented. It is likely that many evacuees will not begin an evacuation with a full tank of gas. Many cars may run out of gas, both inside and outside the EPZ, as a result of extended operation times due to congestion, stop-and-go conditions and time spent sitting in queues. Cars running out of gas, and the probable abandonment of vehicles which will follow, will result in obstructions and blockages on roadways in use during the evacuation. .LILCO's evacuation time estimates do not take cars running out of gas and the resulting rcad obstructions into account. If ,

LILCO cannot effectively prevent or remove such obstacles, its evacuation ' time estimates will in-crease. The LILCO Plan thus fails to comply with 10 C.F.R. S 50.47(b)(10), Part 50, Appendix E, S IV, and NUREG-0654 SS II.J.8, J.9, J.10, and Appendix 4.

l The Board said this:

It is presently unclear how this safety feature would function, or, indeed, whether it would function at all.

Memorandum and Order, at 39 (Sept.17,1987). The following issues are raised:

Fuel

1. Would the State or County permit LERO to give fuel to motorists who needed it to evacuate?

2. Would the State or County provide fuel?

3. If fuel could not be provided by LERO or the Sthte or County, would signifi-cant harm to the public health and safety result?

10. Performing Access Control at the EPZ Perimeter l l

Contention 10 reads as follows: l 1

LILCO is prohibited by law from performing law enforcement functions at the EOC, at relocation centers, and at the EPZ perimeter. N.Y. Penal Law l SS 190.25(3), 195.05, 240.20(3) (McKinney); N.Y.

J- Transp. Corp. S 30 (McKinney). N.Y. Veh. & Traf.

l Law SS 1102,1602 (McKinney); N.Y. Exec. Law 20 e_t .

se_g. (McKinney). The LILCO Plan identifies LILCO I

employees as being responsible, during an emergency, for establishing and maintaining security and access control for the EOC, directing traffic into the reloca-  !

tion centers, establishing and maintaining security at .)

the relocation centers, and establishing and main-talning perimeter / access control to evacuated areas, i (OPIP 2.1.1, at 60-61; Plan, Appendix A at IV-8; OPIP l 3.6.3, Attach. 4.) Section 50.47(b)(1) of 10 C.F.R. re-quires LILCO to demonstrate that it "has staff to re-spond and to augment its initial response on a contin- )

uous basis." LILCO must also "specify the functions I and responsibilities for major elements . . . of emer- i gency response," including law enforcement response.  !

NUREG-0654 S II.A.2.a. Without the ability to pro .

vide security at the EOC and relocation centers, and provide perimeter control, the LILCO Plan and the protective actions contemplated therein could 'not and would not be implemented. The Plan thus falls to 4 comply with 10 C.F.R. SS 50.47(b)(1) and 50.47(b)(10), j and NUREG-0654 SS ILA.2.a, II.J.9 and J.10.

The Board said this: ]

The only thing at issue is the control of access to the EPZ during the time when people are supposed ,

to stay out. . . . j l

Taken together these two arguments (i.ea , LILCO's 1 and the Interveners"] raise an issue which is essen-= l tially one of immateriality: whether it matters that i LILCO cannot enforce the abandonment of a con-taminated area, but can only urge people to stay out.

We shall consider immateriality in all its aspects in connection with the remand of these issues, but we '  ;

are not at that juncture yet. -Whether or not the i public can effectively be kept out of contaminated  ;

areas or areas threatened with imminent contamina-tion is clearly a health and safety issue. What would occur if the local authorities were attempting to en-force one situation while LILCO was " advising" an- l other; what standards would the local authorities use '

for exclusion and over how wide an area; how would '

these organizations interact and to what end? All these questions must be answered before we can properly decide whether we have reasonable assur-ance that health and safety will be protected.

Memorandum and Order, at 40 (Sept.17,1987). With respect to public access to' con-taminated areas, the following issues are raised:

w__-__--_--.____-_-- _ _ _ _ _ - - _ _ _ _ _ . _

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Access Control

1. Would the State and County, using "best efforts," allow the public to enter j contaminated areas that LERO recommended should be avoided?

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2. If so, would there be significant harm to the public health and safety?

IL Schedule for the PranaarHrw In its Memorandum of October 8,1987, the Board said that the " parties should submit for the Licensing Board's consideration a proposed procedural schedule for the prehearing and hearing process." The Board said that the " proposed schedule should be by milestone showing the particular number of intervening days rather than by specific date." Memorandum to the Parties, at 4 (Oct. 8,1987).

LILCO proposes the following schedule:

Cumulative l Number of Days 1 Time Allotted Elapsed Since '

I Event for Each Step Day Zero i Discovery 8 weeks 56 days  ;

i Preparation and filing of l Interveners' written testimony 2 weeks 70 l Additional time for LILCO to file its written testimony 2 weeks 84 l

l Motions to strike testimony 1 week 91 i Responses to motions to strike 1 week 98 Time for ruling on motions to strike 1 week 105 ,

1 Hearing 1

This proposed schedule does not include a rebuttal phase, either for filing written re-buttal testimony before the hearing begins or for oral or written rebuttal testimony af ter the hearing begins. Such a rebuttal phase may prove necessary, depending on the nature of the parties' direct testimony. However, the proposal that the Interveners file their testimony first will minimize the likelihood of a rebuttal phase.

i The pattern throughout this proceeding has been for all parties to file simult'a-neously, with the exception of the recent reception centers hearing, for which the Board required LILCO to file its testimony first. LILCO argued then that it makes more sense for the Interveners to file first, since the applicant's case is well-known in ad-vance because of its written plan. Having the Interveners file first makes all the more sense in the realism jroceeding, where they are the ones with the information that is stilllacking. LILCO would expect that the NRC Staff would file testimony at the same time as LILCO.

m. O_ther Questions The Board also asked the parties to address "the extent to which the existing -

record can be relied on." Memorandum to the Parties, at 3 (Oct. 8,1987). LILCO be-lieves that a party should be able to refer to any fact already proved C,n the record to support its case on realism. For example, passages from the LILCO plan having to do with the nine functions at issue, as well as testimony about how the plan is to be imple-mented, may bear on the realism issue.

The Board asked where -additional evidence needs to be taken. It would appear that additional evidence is called for, under the Board's Memorandum and Order of-September 17, 1987, principally on the subjects of what State and County officials would take action and make decisions in an emergency and how they would be con-tacted by LERO. There may also need to be some inquiry, if the issue is raised by the Interveners, as to what resources the State and County might use that would better

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protect the public than the resources LILCO has provided.

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Respectfully submitted,

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o Donald P. Irviin James N. Christman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: October 30,1987

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LILCO, October 30,1987 : .J Ts"nN9

.N O ~2 P4 35 \

l CERTIFICATE OF SERVICE Chihahj/yg*

BRANC4 In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S VIEWS ON THE ISSUES AND SCHEDULE:

IN THE REALISM REMAND were served this date upon the following by hand or i telecopter as indicated by one asterisk, by Federal Express as indicated by two aster-isks, or by first-class mail, postage prepaid. )

l Morton B. Margulies, Chairman * ' Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel ,

Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers, Rm. 407 4350 East-West Hwy. Atomic Safety and Licensing.

Bethesda, MD 20814 Board Panel U.S. Nuclear Regulatory Commission Dr. Jerry R. Kline

• Washington, D.C. 20555 Atomic Safety and Licensing Board . George E. Johnson, Esq.

• U.S. Nuclear Regulatory Commission Richard G. Bachmann, Esq.

East-West Towers, Rm. 427 U.S. Nuclear Regulatory Commission 4350 East-West Hwy. 7735 Old Georgetown Road Bethesda, MD 20814 (to mailroom) 1 Bethesda, MD 20814 )

Mr. Frederick J. Shon

• Atomic Safety and Licensing Herbert H. Brown, Esq.

• Board Lawrence Coe Lanpher, Esq.

U.S. Nuclear Regulatory Commission Karla J. Letsche, Esq.

East-West Towers, Rm. 430 Kirkpatrick & Lockhart 4350 East-West Hwy. South Lobby - 9th Floor i Bethesda, MD 20814 1800 M Street, N.W.

Washington, D.C. 20036-5891 Secretary of the Commission Attention Docketing and Service Fabian G. Palomino, Esq.

• Section Richard J. Zahnleuter, Esq.

U.S. Nuclear Regulatory Commission Special Counsel to the Governor 1717 H Street, N.W. Executive Chamber Washington, D.C. 20555 Room 229 State Capitol Albany,- New York 12224

4 3,

Mary Gundrum, Esq. Jonathan D. Feinberg, Esq.

Assistant Attorney General New York State Department of 120 Broadway Public Service, Staff Counsel Third Floor, Room 3-116 Three Rockefeller Plaza New York, New York 10271 Albany, New York 12223 Spence W. Perry, Esq.

• Ms. Nora Bredes William R. Cumming, Esq. Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition i Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.

Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office ExeNtive Chamber Agency Building 2 Stc. ?apitol 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  ;

33 West Second Street H. Lee Dennison Building l P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 New York, New York 10278 ML .  % " =J

/ James N. Chrislman j Hunton & Williams 707 East Main Street l P.O. Box 1535 I Richmond, Virginia 23212 DATED: October 30,1987 i I

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