ML20236P797
| ML20236P797 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/13/1987 |
| From: | Latham S, Mark Miller, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20236P799 | List: |
| References | |
| CON-#487-4838 OL-3, NUDOCS 8711190013 | |
| Download: ML20236P797 (55) | |
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1 S-1 DCCHCIED U%RC November 13, 1987
'87 MN 16 P5 30 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ny OFFICL 00CKE7w; 4Cf hat;74,c7 3 guy ~
Before the' Atomic Safety and Licensina Board BRANCH
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In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power )
Station, Unit 1) )
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ANSWER OF SUFFOLK COUNTY, THE STATE OF NEW YORK AND THE TOWN OF SOUTHAMPTON TO LILCO'S MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION 25.C (" ROLE CONFLICT" OF SCHOOL BUS DRIVERS)
I. Introduction Suffolk County, the State of New York, and the Town of Southampton (hereafter, the " Governments") hereby respond to and answer, pursuant to 10 CFR $2.749, LILCO's Motion for Summary Disposition of Contention 25.C (" Role Conflict" of School Bus Drivers), dated October 22, 1987 (hereafter, "LILCO's Motion").
LILCO's Motion argues that, for a number of reasons, Contention 25.C, concerning whether an adequate number of school bus drivers would be available to perform early dismissal or evacuation of school children during a Shoreham emergency, should be resolved summarily in LILCO's favor, without further evidentiary hearings. Each of the arguments advanced by LILCO, however, is subject to numerous factual and legal defects. Each DOCK 0 hok o
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.V of these defects, standing alone,: requires.this Board to deny LILCO's Motion. Taken together, these defects establish that !
LILCO's Motion is wholly without merit.
In essence, LILCO's Motion is based upon a commitment to 1
devise an entirely.new plan for school evacuation. As we discuss below, that new plan proposal itself is patently defective on its i
face, and raises numerous issues beyond those presented by Contention 25.C. It is also significant, however, that LILCO's new proposal fails to address at all the implementability of the i protective action of early dismissal, which is expressly addressed by Contention 25.C., or the availability of school buses to implement both early dismissal and evacuation, also j addressed by contention 25.C. Thus, LILCO's suggestion that its wholly new plan proposal justifies summary disposition of Contention 25.C is frivolous on its face.
As noted, LILCO's Motion is premised largely upon a i
completely new proposal for implementing the protective action of ;
evacuation for school children. In all previous litigated versions of its Plan, LILCO relied upon regular school bus drivers already employed by or under contract to the school ;
l districts to evacuate school children in the event of a Shoreham j 1
emergency. Given that (according to LILCO) there are only about 340 such bus drivers, LILCO relied upon these drivers to make multiple trips into the potentially radioactive EPZ to accomplish this task. It was the adequacy and implementability of this proposal which was litigated under Contention 71 in the 1983-84 1
proceeding.
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I Now, however, LILCO has radically changed its plan for evacuating school children, albeit without serving plan revisions i
or requesting via the NRC that the FEMA Regional Assistance Committee review the new plan. At any rate, LILCO now proposes that school evacuation will be accomplished in a single wave, and !
by a completely new procedure. LILCO estimates that 562 school bus drivers would be required to implement this new plan. It assumes that the alleged existing 340 drivers would accomplish a I portion of this task, with each of these 340 regular drivers
" backed up" by an unidentified and yet-to-be-recruited-or-trained LILCO-employed LERO driver. Further, to complete the staffing of the one-wave evacuation, LILCO proposes to have 222 additional ,
unidentified and yet-to-be-recruited-or-trained LERO drivers act as primary school bus drivers; according to LILCO, these 222 i primary drivers would function side-by-side with the 340 regular school bus drivers (or some of the 340 backup drivers, assuming some of the regular drivers experience role conflict).
Notwithstanding the fundamental changes to LILCO's previous plan for evacuating school children made by this new plan proposal, LILCO asserts that its new plan entitles it to summary disposition on contention 25.C.
LILCO's Motion is so bizarre and patently defective that it is difficult for the Governments to know where to begin in their opposition to it. Clearly, LILCO's new plan does not even purport to address two of the issues.directly presented in Contention 25.C (early dismissal and bus availability).
Furthermore, as discussed at length below, LILCO's Motion itself i
is a direct challenge to the Appeal Board's holding and l
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instructions concerning the remand of Contention 25.C; moreover, it raises innumerable new issues, which the Governments are '
entitled to address, beyond the role conflict matter raised in Contention 25.C. For example, how could this Board possibly accept LILCO's " plan" to have 222 LERO employees drive school children as a primary, non-backup part of the Shoreham Plan when there is not one scintilla of evidence that any school has agreed to allow LILCO's drivers to perform that function, and when New York State law expressly requires that each school district !
must approve the drivers of its children? The Board, of course, could not approve such a " plan," much less rule summarily that it is adequate and implementable under the NRC's regulations. But LILCO does not even address this critical issue.
In fact, it is plain that LILCO's Motion does not really l reflect a " plan" that could support findings of fact and conclusions of law. Rather, it reflects a wholly executory
" commitment" by LILCO to recruit and train LILCO employees as school bus drivers, who allegedly (but not lawfully) could serve as regular and backup drivers in the event of a Shoreham emergency. Merely promising or committing to do something, f however, is not sufficient to enable this Board to dispose of the school bus driver availability issue without further evidentiary 1
hearings. If that were the " standard," then no applicant would !
have to do more than put a lot of nice words on paper pledging to
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comply with the regulations.
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Similarly, this Board cannot accept a totally new proposal for school children evacuation, as an alleged solution to a bus driver availability problem, while ignoring the serious ramifications of such a new proposal on the broader question of whether an evacuation of school children could and would be safely implemented. The regulations require a finding "that adequate protective measures can and will be taken in the event of a radiological emergency." 10 CFR 550.47(a)(1). Mere commitments which are wholly executory and generalized, which.are not even reflected in plan revisions, and which raise serious and substantial new issues, are agt gg inadequate and must be summarily rejected.
The question before the Board on remand of Contention 25.C is whether there is reasonable assurance that, in the event of a Shoreham emergency, there would be an adequate complement of school bus drivers and school buses available to implement protective actions for school children. Those actions, under LILCO's Plan, include early dismissal and evacuation of children who attend school or live in the EPZ. LILCO's expectation and belief that it can eventually recruit and train sufficient personnel to accomplish these tasks are simply not relevant in the context of a motion for summary disposition. It is LILCO's burden to prove reasonable assurance that adequate protective measures can and will be taken in an emergency. This means that LILCO is obliged to produce affirmative, uncontested evidence of an adequate number of available bus drivers and buses. No such evidence is revealed by LILCO's Motion, however. Instead, LILCO 1
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merely, offers to work with the EPZ school districts to train and equip their regular school bus drivers (an offer that has been made and rejected for years and which the Appeal Board has found to be inadequate) and pledges to recruit and train personnel from
, within LILCO to serve as regular drivers for almost half of the EPZ school children and as backup bus drivers for the rest in case the regular school bus drivers fail to respond during a .
1 Shoreham emergency. But recruitment of such backup drivers has not been completed, no drivers have been trained, and there has i
been no review by FEMA or anyone other than LILCO of the training l program's adequacy. Moreover, LILCO ignores entirely the issues of whether early dismissals could and would be implemented, and whether there would be an adequate number of buses to accomplish either early dismissals or evacuation. Against this background, 1
it must be concluded that LILCO's Motion is utterly lacking in I merit and, as a matter of law, must be denied by the Board.
l The Governments address below the many reasons why LILCO's Motion must be denied. This Answer is necessarily lengthy because the defects in LILCO's Motion are so numerous.
The Governments respectfully submit, however, that the Board, unlike the Governments, does not need to wade through all of the papers that have been and may yet be filed on the remanded Contention 25.C issues. Rather, the appropriate course for the Board to take is to reject LILCO's Motion summarily as inconsistent with ALAB-832 and contrary to 10 CFR S2.749. These l
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o reasons are discussed in more detail hereafter. Briefly, ;
however, we set forth below why the Board should act promptly to reject LILCO's Motion.
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o In ALAB-832, the Appeal Board made clear that, on remand, the Board was to consider the evidence which had been improperly excluded {
and provide the parties an opportunity to present additional evidence as well on the issues. It is wholly inappropriate, therefore, for the Board to entertain LILCO's Motion, which clearly conflicts with ALAB-832.
o LILCO igncres the summary disposition rules.
In construing the facts at the summary disposition stage, this Board must view the facts in the manner most advantageous to the Governments. When this is done, it is clear that LILCO's Motion must be rejected because the Governments' evidence -- including that which the Appeal Board directed this Board to consider -- compels a conclusion that there will be severe bus driver role conflict, renulting in unavailable buses and drivers to implement early dismissal and evacuation of school children, o LILCO has proposed an entirely new one-wave evacuation scheme, with 222 LERO workers serving as primary school bus drivers. The affidavit of Karla J. Letsche attached hereto underscores how different LILCO's new scheme is from all previously litigated versions of LILCO's Plan. It is clearly inappropriate to propose an entirely new plan (which has not even been reflected in an actual plan revision or sent to FEMA for review) for the first time in the context of a summary disposition motion. Rather, only after time for careful review, including discovery and new contentions, can the new plan be ready for adjudication via summary disposition or a hearing. LILCO's attempt to circumven orderlyproceduresiswhollyimproper._g/
1/ The facts related to LILCO's improper use of the summary disposition procedure are discussed in detail in the Suffolk l County, State of New York, and Town of Southampton Motion for Summary Rejection of Summary Disposition Motion and for Expedited Consideration, dated November 12, 1987.
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.The' Governments urgeLtherefore that LILCO's Motion be denied summarily.
II.- Backcround Contention 25.C, the text of which is' set forth in LILCO's i
Motion-(at pages 2-3), alleges that the LILCO Plan fails to take into account the role conflict ~thatLwould be experienced by school. !
bus drivers during-a Shoreham emergency and that, as a result, neither sufficient numbers of school. buses nor school bus drivers would be available to implement the LILCO Plan. When-the parties submitted written evidence on this contention in late 1983,-
included in Suffolk County's testimony were the results of two surveys. The first was a survey.of school bus drivers in the Shoreham EPZ, which indicated-that significant role conflict would likely occur. Cole, ff. Tr. 1216, at 7.2/ This survey was admitted into evidence by the Board.
The second was a survey of volunteer firemen in the EPZ, which indicated that, in the event of a Shoreham emergency, large numbers of these trained emergency workers would also resolve role conflict in favor of first attending to their families. Cole, ff.
Tr. 1216, at 12-16, 18; Erikson and Johnson, ff. Tr. 1455, at 24-26, 28, 30.3/ Although LILCO's Plan did not rely upon volunteer 2/ The survey demonstrated that only 24 percent of the surveyed bus drivers responded that they would report to work. Sixty-nine ,
percent responded that they would first look after the health and j safety of their families and thus would not be available promptly j to-perform their driving responsibilities. Cole, ff. Tr. 1216, !
at 7-8. ;
3/ The firemen survey demonstrated that only 21 percent of the volunteer firemen surveyed would report to work. Sixty-eight (footnote continued) I i
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i firemen,: the Cbuntyis testimony explained why the survey results
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were highly probative of how other workers relied upon by LILCO would respond tx) roleLconflicts. Nonetheless, upon motion by the NRC Staff, the Board ruled that this testimony was irrelevant and refused to admit it into evidence. Tr. 792; Order Confirming Changes in Schedule with Regard to " Group II" Contentions'and-Rulings on Motions to Strike, Dec. 2, 1983, at 4. Suffolk County-asked for reconsideration of this ruling,i/ but the Board declined b :to' reverse itself and eventually the school bus driver role ,
conflict issue raised by Contention 25.C was resolved in LILCO's favor in the Board's Partial Initial Decision'(the "PID"). Long Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-85-12, 21 NRC 644, 675-76', 679 (1985).5/
(footnote continued from previous page) percent responded that'they would first make sure their families were safely out of the EPZ. Cole, ff. Tr. 1216, at.10-11, 13-14. l A/ Suffolk County Objections to Prehearing Conference of Counsel Orders and Motion for Reconsideration, Dec. 8, 1983, at 18-22.
5/- Although the Board resolved the role conflict issue in LILCO's-favor in the PID, it agreed with Suffolk County that there was no reasonable assurance that there are enough school j buses available to LILCO to accomplish an evacuation of school ,
children from within the EPZ in an adequate and timely manner.
PID, 21 NRC at 872-74 (Contention 71.B.2). While Contentions 25.C and 71.B.2 were litigated and are discussed in the PID as separate issues, they are obviously related, as even LILCO acknowledges. Egg October 22, 1987 cover letter accompanying LILCO's Motion from counsel for LILCO to the Board. Nonetheless,
'LILCO's Motion focuses only upon the school bus driver availability issue raised by Contention 25.C. LILCO does not !
address the Board's finding that there are not enough buses available to LILCO to implement an adequate and effective school evacuation, j l
It is, in the first instance, LILCO's prerogative to suggest )
how it wishes to attempt resolution of outstanding issues before l this' Board. The Board, however, is certainly not bound to accept LILCO's suggestion. Moreover, LILCO's failure to address the bus (footnote continued)
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Following the Board's decision, the Governments appealed to l the Appeal Board. Egg Suffolk County, State of New York, and Town l of Southampton Brief on Appeal of Licensing Board April 17, 1985 i 4
Partial Initial Decision on Emergency Planning, Oct. 23, 1985, at 58-62. The Appeal Board agreed with the Governments that this !
Board had erred in excluding the testimony related to the survey j of volunteer firemen. In addition, the Appeal Board indicated its disagreement with the Board's finding in the PID that the survey i
of school bus drivers in the Shoreham EPZ, which had been admitted into evidence, was entitled to little, if any, predictive value.5/
As a result, the Appeal Board remanded the issues raised by Contention 25.C for further evidentiary hearings. Lono Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135, 152-54 (1986). In remanding, the Appeal Board reasoned as follows:
We agree with the interveners that the Board erred in excluding the testimony related to the survey of volunteer firemen. While the applicant does not rely on volunteer firemen to implement protective actions in the event of a Shoreham emergency, that fact alone was insufficient to deny admission of the testimony. In our view, the results of a survey as to the potential for role conflict among firemen, if they had been part of I the emergency response, would provide insight into the likely course of conduct of school bus drivers.
(footnote continued from previous page) availability issue, even though it is a part of Contention 25.C, l 1s one reason this Board should summarily reject LILCO's motion i for summary disposition of that contention. The Governments also believe that the resources of the Board and other parties would be better served if piecemeal litigation of issues so closely <
linked as are the sufficiency of the number of buses and the j number of individuals committed to drive those vehicles could be 1 resolved together.
5/ Egg PID, 21 NRC at 673-76.
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Stated in its simplest terms, if a trained professional emergency worker such as a. firemen 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' individual not in such a line of' endeavor would encounter at least as great role conflict. It is thus unsurprising that, in the consideration of emergency planning in Zimmer, we found that surveys of volunteer life squadsmen and-
, ' firemen concerning the role conflict they would l encounter raised'"a serious question as to whether bus drivers could be depended upon to carry out their responsibilities" in the event of an accident at that plant. We further determined there that those surveys precluded, on the evidence of record, a finding that the school bus drivers'would respond promptly. i On the record now before us, we similarly cannot 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. Therefore, we are remanding this matter to the Licensing Board for'further exploration. 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. Upon review of the evidence presented at the reopened hearing, the Licensing Board should reconsider its prior findings and conclusions regarding the potential for role conflict among school bus drivers.
ALAB-832, 23 NRC at 153-54 (footnotes omitted).
LILCO petitioned the Commission for review of the Appeal Board's decision, but the Commission declined to take review.
Commission Order, Sept. 19, 1986. Accordingly, pursuant to the Appeal Board's decision in ALAB-832, the issue of whether there l would be a sufficient number of school bus drivers and buses to implement protective actions for school children under LILCO's
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Plan is now before this Board on remand.
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III. LILCO's Motion Ignores the Applicable Law Governing Summary Disposition _and Should Be Summarily Reiected The law applicable to summary disposition was recently summarized by this Board in its Memorandum and Order (Ruling on Applicant's Motion of March 20, 1987 for Summary Disposition of the Legal Authority Issues and of May 22, 1987 for Leave to File a Reply and Interpreting Rulings Made by the Commission in CLI-86-13 Involving the Remand of the Realism Issue and Its Effect on the Legal Authority Question), dated September 17, 1987 (hereafter,
" September 17 Order"), and by the Voctle Board in its unpublished Memorandum and Order of October 3, 1985. Memorandum and Order (Ruling on Motion for Summary Disposition of Contention 8 re:
Vogtle Quality Assurance), Georcia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), ASLBP No. 84-499-01-OL, Doc.
Nos. 50-424 OL and 50-425 OL (Oct. 3, 1985), slip op. at 2-3.
A licensing board is empowered to grant summary disposition on the pleadings if it finds that "there is no genuine issue as to ;
i any material fact and that the moving party is entitled to a decision as a matter of law." 10 CFR 52.749(d). The party l seeking summary disposition has the burden of proving the absence 1
of any genuine issue of material fact, Cleveland Electric j i
Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
ALAB-443, 6 NRC 741, 753 (1977), with the record viewed in the licht most favorable to the motion's ocoonent, Dairvland Power Cooperative (Lacrosse Boiling Water Reactor), LBP-82-58, 16 NRC 512, 519 (1982). A party opposing a motion may not rely upon a simple denial of material facts stated by the movant, but instead
"must set forth specific facts showing that there is a genuine issue of fact." 10 CFR S2.749(b); Vircinia Electric and Power Co.
(North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 453 (1980). All material facts set forth in the movant's statement of facts are deemed admitted unless controverted by the opponent's statement of specific facts. 10 CFR S2.749(a). The proponent of a motion, however, must meet the burden of proof in
. establishing that there is no genuine issue of material fact, even in the absence of a response. Perrv, 6 NRC at 754. Egg cenerally September 17 Order, at 20.
In seeking summary disposition on the school bus driver availability issue remanded by the Appeal Board, LILCO blithely ignores the law governing summary disposition under 10 CFR S2.749.
LILCO urges, for example, that the issue remanded by the Appeal Board can be resolved summarily in its favor if the Board merely "take[s] into account" the previously excluded firemen survey evidence, " reconsider [s] its findings," and then reconfirms its conclusion reached before. LILCO's Motion at 5. As previously l
noted, however, in moving for summary disposition LILCO bears the 1 J
burden of establishing the absence of any genuine issue of material fact. Furthermore, the Board must view the record and any submitted affidavits in the licht most favorable to those i
ocoosina LILCO's Motion. Thus, in this case, LILCO has the burden of establishing that this Board can make the findings required to i
rule in its favor on Contention 25.C, with the record viewed in the light most favorable to the Governments.
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LILCO has not, and:cannot, carry that burden. In ruling on-LILCO's-Motion, the Board must assume that the results of the
- firemen survey.and the County's testimony relating to that survey (which was previously: struck by.the Board) demonstrate that,Lin fact, large numbers of workers relied upon by LILCO wouldJresolve role conflict in favor.of'first attending to their families in the
- event of a Shoreham emergency. Put another way, the. Board'must not only "take into account" the firemen survey and related testimony, but it must also assume that- the ' survey results, which indicate that there would be significant role conflict,.are true.
For'the Board to reach any other conclusion would be clear error under applicable summary disposition law.
When the proper legal requirements are applied,'it is clear that LILCO's Motion has no merit.. Since the Board must construe the facts most favorably to the Governments, it'must assume the truth of the Governments' evidence and find that there will be severe role conflict among bus drivers resulting in'a lack of sufficient drivers and buses necessary to implement early dismissal or evacuation of school children. Thus, there is no
- possible basis to grant LILCO's Motion.
In addition, LILCO's Motion must be summarily rejected because, to a large extent, it effectively precludes the other
' parties in this proceeding from contesting the material " facts" alleged and relied upon by LILCO. Viewed in its simplest terms, LILCO's? Motion is really nothing other than the initial submission of a wholesale revision of those provisions of LILCO's Plan which deal with the transportation of school children out of the EPZ L .
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l during a Shoreham emergency. See the affidavit of Karla J.
Letsche, attached hereto. It is rudimentary that, under these circumstances, there must be an adequate opportunity for review, for focusing issues through contentions, and for discovery before issues can be disposed of through summary disposition. Summary disposition may be appropriate at some point later in this proceeding. At a minimum, however, there must first be contentions which address LILCO's new proposal for transporting school children out of the EPZ, followed by discovery, before there can properly be rulings on the merits. Rig 10 CFR 52.749(c)
(authorizing licensing boards to refuse an application for summary disposition when it appears that a party opposing the motion cannot present facts essential to justify his opposition).
Without such an opportunity, the Governments are relegated to challenging not facts, but mere assertions by LILCO of what a previously unannounced Plan revision commits LILCO to doing. As discussed more fully below, LILCO cannot be permitted, under the guise of a summary disposition motion, to shield its proposed Plan revision from scrutiny. Nor can this Board summarily reject the ,
survey evidence the Appeal Board ordered the Board to admit, without hearing testimony, other evidence, or argument as part of I
the reconsideration ordered by the Appeal Board. Equally clear, l the Board cannot admit as " undisputed fact" a completely new LILCO proposal for the evacuation of school children, when this new proposal has never before been seen or reviewed by any other parties, the Board or FEMA. To do so would be contrary to the Atomic Energy Act, NRC regulations, and the Appeal Board's express l instructions in ALAB-832.
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IV. LILCO's Motion Invites the Board !
to Commit Clear Error Before turning to the merits of LILCO's Motion, one other i comment is appropriate. In suggesting that the issue of whether school bus drivers would be available to implement protective actions for school children can be resolved summarily, without further evidentiary hearings, LILCO obviously attempts to short-circuit the remand proceeding ordered by the Appeal Board. This Board should reject LILCO's suggestion. Otherwise, the Board will have merely repeated the errors it previously made in ruling on ,
Contention 25.C.
, In remanding, the Appeal Board expressly instructed the Board to "further explor[e]" whether "a sufficient number of school bus drivers can be relied upon to perform their duties if an accident occurred at Shoreham." ALAB-832, 23 NRC at 154. Further, the Appeal Board said that "[alll parties will be free to adduce additional evidence on the issue" and instructed the Licensing Board, at a minimum, "to accept the testimony related to the survey of volunteer firemen" and to " reconsider its prior findings and conclusions regarding the potential for role conflict among school bus drivers." Id. Based on the foregoing, it is sheer folly to assert, as LILCO does, that the Appeal Boardi s only purpose in remanding was to have this Board accept into evidence, and then summarily reject, the volunteer firemen survey, so that the Board could once again rule in LILCO's favor with respect to the potential for role conflict among school bus drivers and its effect upon LILCO's ability to implement protective actions for
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school children. Such a result would be an exercise in futility, i Rather, the only sensible conclusion that can be reached is that the Appeal Board's remand was based upon its fundamental disagreement with this Board's exclusion of the firemen survey.
Moreover, in remanding, the Appeal Board made clear its belief that this Board's conclusion regarding the validity and value of surveys was in error. Thus, it instructed the Board to
" reconsider its prior findings and conclusions regarding the i
potential for role conflict among school bus drivers." ALAB-832, 23 NRC at 154. Implicit in this instruction, and the Appeal Board's discussion of its rtiling (agg id. ), is a direction that the Board should reconsider its prior findings and conclusions about the school bus driver survey which was admitted into evidence, but given little, if any, predictive value by the Board.
Egg PID, 21 NRC at 675-76.
Further, it is absurd to assert, as LILCO does (at page 5),
that the Appeal Board has not specified that there must be an l
evidentiary hearing, and that the school bus driver availability issue remanded in ALAB-832 can now be resolved summarily. The l I
Appeal Board expressly stated that the excluded evidence, plus l l
" additional evidence" the parties might wish to submit, are to be j considered "at the reopened hearino" and that the Licensing Board was to reconsider its prior findings and conclusions after review of the evidence presented at that reopened hearino. ALAB-832, 23 l NRC at 154. 5 hearino -- not a LILCO short-cut procedure designed
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l to deprive the Governments of their rights -- is clearly required, therefore, by ALAB-832.
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' Contrary to LILCO's-assertion, and as noted in the attached LStatement'of. Material' Facts as to-which There Exise,s a Genuine Issue.to be Heard on Matters Raised by LILCO's Motion for Summary Disposition of Contention 25.C-(hereafter, " Statement of Disputed Facts"), there are material issues of fact in dispute. Moreover, as will be discussed below, the bulk of LILCO's Motion does-not even-address the issues actually remanded by the Appeal Board, but rather is based upon insupportable assertions by LILCO regarding l
its intentions to revise its Plan in a way that, in its view, resolves the problem of not having. sufficient school bus drivers available to implement the evacuation of school children out of i
the.EPZ'during a Shoreham emergency. '
In fact, the record in this proceeding provides no basis for determining the nature or adequacy of LILCO's proposal. Put another way, there are no facts in the record upon which the Board-could base a ruling-for LILCO on the remanded school bus driver i
availability issue. The current record deals only with the
-previously litigated LILCO Plan, which relies upon regular school bus drivers, not LILCO personnel, to evacuate the schools within the EPZ in a multiple-wave process involving multiple bus runs.
And,'as discussed above, viewing the evidence in the light most favorable to the Governments -- as required by Section-2.749 --
requires a finding that there would be substantial numbers of bus drivers and buses unavailable to implement an early dismissal or evacuation of school children. Therefore, to rule in LILCO's i
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favor based on the record in this proceeding would constitute clear error, and a violation of-the due process rights of the
-Governments.
For these reasons, and other discussed below, LILCO's Motion is.meritless. It must be denied by the Board.
V. LILCO's Arguments Are '
Without Merit In seeking summary disposition, LILCO argues that, in order to comply with the Appeal Board's remand, the Board need only-
"take into account the previously excluded (firemen survey]
evidence," " reconsider its findings," and then " reach the same conclusion" that was reached in the PID -- that role conflict would not be a significant problem at Shoreham and that a sufficient number of emergency workers, including school bus drivers, would respond in a timely fashion to perform their assigned duties. LILCO's Motion at 5. As previously noted, however, LILCO's position is contrary to the law governing motions for summary disposition and ignores the Appeal Board's express instruction for further evidentiary hearings, after which the Board is to reconsider its prior findings and conclusions in LILCO's favor regarding the potential for role conflict among school bus drivers. Accordingly, LILCO's position should be summarily rejected.
l LILCO makes three basic arguments in support of its position, however, and notwithstanding the above deficiencies, each will be addressed below. The Governments submit that each of LILCO's 1
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' arguments is'without merit. .In fact, on the whole, the arguments
.made by LILCO'are. familiar ~ones; they have been made -- and rejected - previously by both the Appeal Board and the Commission.
l A. The Board's Admission of the School Bus Driver' Survey Does Not Cure Its Failure to Have Admitted the Firemen Survev l LILCO first argues that the admission of the firemen survey would'not change the conclusion previously reached by!the.
Licensing Board regarding the potential for role conflict, since the firemen survey allegedly is repetitive of the school bus driver: survey that was considered by the Board. LILCO's Motion at- ;
5-8. Therefore, according to LILCO, Contention 25.C can be resolved without further evidentiary hearings.
LILCO is incorrect for a number of reasons. First, as previously noted, to adopt LILCO's argument it is necessary to conclude that the purpose of.the Appeal Board's remand was merely to instruct this Board to engage in a useless exercise. Such a conclusion simply makes no sense.
Second, LILCO's argument assumes that the Licensing Board's
. consideration of'the school bus driver survey that was admitted into evidence was proper and that its conclusions thereon are final. This LILCO assumption is inconsistent with the Appeal Board's holding in ALAB-832. In the original litigation, the Licensing Board concluded that surveys and opinion polls, including the bus driver survey admitted into evidence, are of little value in predicting behavior in an emergency. Egg, e.c.,
j
_ _ _ _ _ _ _ _ _ _ - - _ _ - _ o
\
! PID, 21 NRC at 676 (" . . . opinion polls are very poor predictors of behavior in an emergency"). This conclusion was squarely rejected by the Appeal Board, however. Indeed, in ALAB-832 the l
Appeal Board: expressly referenced the survey of school bus drivers and LILCO's failure to submit evidence to counter the 1
facts revealed by that survey in holding that the record did not support a finding that a sufficient number of drivers would be available;2/ held that the results of the volunteer firemen survey constituted material evidence; and, referenced its own Zimmer decision in which it relied on surveys of workers expected to act in an emergency and affirmed the Licensing Board's order of additional surveys as a condition of licensing.8/
Thus, it is not surprising that, in asserting that the volunteer firemen survey could "not change the outcome of the case," LILCO's Motion fails to even mention the Appeal Board's decision, much less address its analyses and conclusions. LILCO states no basis for summarily resolving the issue remanded by the 2/ The Appeal Board, for example, recognized that LILCO "does not have any agreements with the school bus companies to ensure that the bus drivers will respond during a radiological emergency," and that "a survey of school bus drivers in the Shoreham EPZ indicated that significant role conflict might occur." ALAB-832, 23 NRC at 152. In addition, the Appeal Board held that "no evidence was presented to establish that [any surplus bus drivers normally available) would likely compensate for any abandonment caused by role conflict of the dimensions caused by the drivers' survey." Id. Thus, the Appeal Board held that it could not make a finding, on the record before it, that "a sufficient number of school bus drivers can be relied upon to perform their duties if an accident occurred at Shoreham." Id.
at 154. Accordingly, it instructed this Board to " reconsider its prior findings and conclusions regarding the potential for role conflict among school bus drivers." Id.
8/ Heg Cincinnati Gas & Electric Co. (Zimmer Nuclear Power Station, Unit 1), LBP-82-48, 15 NRC 1549, 1571-72, 1606-607, aff'd, ALAB-727, 17 NRC 760, 772 (1983).
N e
l Appeal Board, and-its' assertion that ALAB-832's instruction to I
" accept the testimony related to the survey of volunteer firemen" can have no bearing on the outcome of.the case (LILCO's Motion at
- 5) grossly misreads and distorts the Appeal Board's remand. l l l Third, the very same argument made here by LILCO has been i
previously made and rejected by the Appeal Board and the '
Commission.9/ 'For example, in petitioning the Commission for i
review of the Appeal Board's decision in ALAB-832, LILCO argued that the Appeal Board had erred in ordering the Licensing Board to !
admit the firemen survey, since such "would require litigation on. '
a minor piece of evidence that can have no effect on the outcome of the proceeding and no real bearing on any alleged defect in the LILCO Plan." LILCO's Petition for Review of ALAB-832, April 10, 1986, at 9. In declining to review the Appeal Board's decision (Commission Order, Sept. 19, 1986), the Commission obviously ;
rejected this LILCO argument. This Board must now do the same.
There are additional reasons for rejecting LILCO's assertion that admission of the firemen survey could not change the Board's previous conclusion regarding the potential for role conflict i
among school bus drivers, therefore making this issue one that can I 1
be resolved summarily. LILCO errs, for example, in stating that f 1
the firemen survey is merely repetitive of the school bus driver survey, since the firemen poll "showed the same thing as the bus driver poll" and " adds no useful information to the bus driver 9/ LILCO fails to disclose in its motion that it has previously made these arguments (and others discussed below) and that they were rejected. This is yet another reason that LILCO's Motion must be summarily denied.
1*.
t 't' survey." LILCO's Motion at'6,'7.-
Unlike the schoo'l bus driver
- survey,.the firemen surveyed who responded that they would.first make sure that~ their families were safely out of the: EPZ were also asked.how they would do so. Thirty-two percent said that'they.
.would personally drive their families away, and 12 percent said-that they would protect their families in some other way. . These data indicate that, in the event of a Shoreham emergency, 36.
percent of all firemen surveyed would look after the safety of themselves.and their families.in a way that.would prevent them from reporting quickly for duty. Cole, ff. Tr. 1216, at 10-11, 13-14. LILCO's Motion, therefore, misrepresents the results of the firemen survey in arguing that the survey adds no useful information.to the bus driver survey.lE/
I Indeed,.LILCO misrepresents and distorts'in the extreme in arguing that.the Board's reasoning with respect to the bus driver survey ("Even if.we assume the (bus driver} survey has some predictive value,.it does not suggest a massive defection of drivers because only 3% said they would.immediately leave the evacuation zone," PID, 21 NRC at 676) applies a fortiori to the I- firemen survey, LILCO's Motion at 7-8. To begin with, the Board's conclusion itself mischaracterized the evidence with respect to the bus driver survey, since only 24 percent of the drivers surveyed responded that they would report to work.
lE/ ' School bus drivers surveyed who responded that they would first make sure that their families were safely out of the EPZ were not asked the follow-up question concerning how they would do so.
o.
Moreover, the evidence from the firemen survey was not that only one percent of the firemen surveyed would leave the EPZ (as LILCO asserts at page 8), but that at least 36 percent would do so.
There is at least one other difference between the firemen and the school bus driver surveys which renders LILCO's request for summary disposition baseless. LILCO asserts that if an individual is a " trained" emergency worker with a " clear idea" of his emergency role, he will perform that role despite conflicting obligations to his family. LILCO's Motion at 14. LILCO thus essentially concedes that the results of the firemen survey are of the utmost relevance and are even more probative than are the results of the school bus driver survey, since, by any account, the firemen surveyed were " trained emergency workers."ll/ Indeed, it was apparently this nexus between " training" and role conflict that led the Appeal Board to find that this Board had erred in l excluding the firemen survey. Simply put, the Appeal Board q J
concluded that the firemen survey provided significant insight i
into the likely course of conduct of school bns drivers, reasoning l l
as follows:
. . . if a trained professional emergency worker 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 individual not in such a line of endeavor would encounter at least as great role conflict. It is thus j unsurprising that, in consideration of emergency planning in Zimmer, we found that surveys of volunteer life squadsmen and firemen concerning the role conflict they would encounter raised "a serious question as to whether bus drivers could be depended upon to carry out 11/ Sag, e,q., Cincinnati Gas & Electric Co., 17 NRC 760 at 772 (testimony on role conflict survey of volunteer firefighters
" raises a serious question as to whether bus drivers could be depended upon").
a . _ _ _ _ _ _ _ _ . - _ _ _
their responsibilities" in the event of an accident at the plant. We further determined there that those surveys. precluded, on the evidence of record, a finding that the school bus drivers would respond promptly.
ALAB-832, 23 NRC at 153-54 (emphasis added; footnotes omitted).
Thus, it is absurd to argue, as LILCO does (at pages 5-8), that the firemen survey is similar to, though less relevant than, the bus driver survey which was considered by this Board.
B. There Is No Basis for Extrapolating the Board's Reasoning with Respect to School Teachers and Ambulance Drivers to School Bus Drivers LILCO next argues that admission of the firemen survey could not affect the outcome of the case because the Board's " reasoning" on school teachers and ambulance drivers " applies just as fully to bus drivers." LILCO's Motion at 8. This argument is also without merit, and should be rejected. First, the argument has previously been made by LILCO and rejected and, second, the position advocated by LILCO is directly contrary to previous pronouncements of the Appeal Board in the Limerick proceeding.12/
4 There can be no question that LILCO has previously relied upon the arguments offered in its most recent motion, and has had them rejected. This is the case with respect to LILCO's reliance on the testimony of FEMA witness McIntire (LILCO's Motion at 9-10);13/ its offer to train, equip and compensat( regular school 12/ ggg philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479 (1986).
13/ Egg, e.g., LILCO's Brief in Opposition to the Interveners' Appeal of the ASLB's Partial Initial Decision on Emergency Planning, Dec. 13, 1985 (hereafter, "LILCO's Appeal Board Brief"), at 50, n.68; LILCO's Petition for Review of ALAB-832, April 10, 1986 (hereafter, "LILCO's Commission Brief"), at 9 (footnote continued)
L______..___
r bus drivers (id. at 9-10)l4/ -- an' offer that has been made and
- l consistently rejected by the~EPZ school districts:in the past; and its assertion that there has been no documented' case of actual' I role abandonment by actual school bus drivers (id. at 10-11).15/
Indeed, in some. instances, the arguments put forth'in LILCO's Motion.are virtually identical to arguments made and lost before.
.Thus, for example, LILCO argues that role conflict would not be a significant problem because j the evidence shows that bus companies have extra drivers, Tr. 9315 (Robinson), and in some school districts,-teachers and other school employees are j qualified to drive buses, Tr. 9315-16 (Cordaro). '
LILCO's Motion at 10. This argument is remarkably similar to one advanced by LILCO when it opposed the Governments' appeal of the ,
PID before the Appeal Board:
Similarly, bus companies have extra drivers. Tr. 9315 i (Robinson). In some school districts, teachers and other school employees are qualified to drive buses.
(footnote continued from. previous page)
(role conflict of teachers, if any, similar to that of bus drivers, citing McIntire, ff. Tr. 2086, at 5).
14/ Egg Transcript of February 12, 1986 oral argument before the Appeal Board on appeal of the Licensing Board's April 17, 1985-Partial Initial Decision on Emergency Planning, at 46-47 (representation by LILCO's counsel that "LILCO has offered to train [ school bus drivers] and to reimburse them for the cost of training, to remove any disincentive from taking (training] and to provide dosimeters"); agg also LILCO's Appeal Board Brief, at 28, n.40 (alleging that "LILCO has offered as well to provide I dosimeters and emergency training to all potential bus drivers").
15/ Egg, e,o., LILCO's Appeal Board Brief, at 51, n.69 (alleging that no evidence was offered by Suffolk County of abandonment of school children by teachers or bus drivers).
l 0
~
- L ,
l .
L *.- -
'Tr. 9315-16 (Cordaro). And schools can cover for missing personnel by consolidating classes and the r- like . . .
LILCO's Appeal. Board Brief, at 52, n.75.
Obviously, neither the Appeal Board nor the Commission has been impressed in the past with LILCO's reasoning in arguing that admission of the firemen survey would have had no bearing on the Board's. conclusions regarding the potential for role conflict among school bus drivers. The arguments made by LILCO have not improved with age, and should be rejected by this Board.
Certainly, they fail to support LILCO's assertion that summary disposition is warranted under the circumstances present in this case.
Furthermore, the Appeal Board has previously made clear that there is no basis for extrapolating from conclusions regarding the likely response of individuals such as school teachers during an emergency to school bus drivers. Thus, LILCO's attempt to argue that, because this Board has concluded that school teachers and ambulance drivers would not be significantly impacted by role conflict during a Shoreham emergency, it can be assumed that i
school bus drivers would also respond, must be rejected. 1 l
In the Limerick proceeding (ALAB-836, 23 NRC 479), the Appeal l l
Board was faced with the same extrapolation argument made by LILCO !
here. The argument was soundly rejected, and the issue of whether ,
i sufficient bus drivers were available to evacuate schools from the j l
evacuation zone was remanded for further consideration. In l 1
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deciding that there was no showing of reasonable assurance "of an adequate complement of persons willing to drive (school buses) in an emergency," the Appeal Board reasoned, in part, as follows:
(T]he evidence on which this finding (of a general willingness of individuals to perform the functions assigned to them in an emergency) is based is limited and not directly relevant to likely bus driver response.
The (Licensing] Board explicitly draws on the evidence adduced in connection with other contentions concerning the likely response of bus providers and teachers. But we can find no basis in the (Licensing] Board's decision or the underlying record for the Board's extrapolation of the response of bus providers and teachers to bus drivers.
With respect to bus providers, the (Licensing]
Board found that, when a bus company has committed itself to supplying the necessary vehicles, it is understood to make a corresponding commitment to provide its employees to drive them. That may be, but it begs the question. As (intervenor) argues, the real issue is not the orovider's commitment or intentions, but the willingness of its drivers to volunteer to participate in the emergency operation. The (Licensing] Board correctly notes that driver participation is to be voluntary, not a mandatory condition of continued employment with the bus company. Thus, provider response is not necessarily a reliable predictor of driver response. Similarly, no basis has been 1 articulated for the Licensing Board's implicit j assumption that the bus drivers who will be called upon i in an emergency will respond in the same manner as l teachers and other school personnel. The training and .
usual duties of these respective groups of individuals l are so disparate as to counsel against any superficial l comparisons. Their response may well be the same, but l that has not been shown on this record to be the case. j Indeed, the record shows for the school districts within i the EPZ only lukewarm driver response to a request to evacuate school children during a radiological I emergency.
l l l l ALAB-836, 23 NRC at 516-17 (citations and footnotes omitted; emphasis in original).15/
1 15/ As the language quoted above indicates, the Limerick Appeal <
Board's refusal to conclude that bus drivers would respond in an '
emergency in the same manner as teachers and other school I
l (footnote continued) l n
%. .l l
-The' reasoning employed by,the Appeal Board in Limerick' applies with equal force in this case. There is simply no basis for concluding that.the school bus drivers relied upon by LILCO to implement its Plan would respond in the same manner as the Board concluded--(wrongly, we assert) school teachers and ambulance drivers would in a Shoreham emergency. LILCO's Motion certainly fails to articulate any such basis.
C. The Board's Conclusion Regarding the Validity and Value.of Opinion Polls Has Previousiv Been Reiected by the ADoeal Board Lastly, LILCO argues that summary disposition should be granted on Contention 25.C because admission of the excluded firemen survey will.not change any of the conclusions previously reached by the Board regarding role conflict, since opinion polls "have little use in emergency planning" and ought not be relied upon by the Board. LILCO's Motion at 11-12. Little needs to be said in response to this LILCO argument. Like the other arguments made by LILCO, it has been made and rejected before by both the Appeal Board and the Commission.
l
}
(footnote continued from previous page) .
personnel took into account the results of two bus driver .
l surveys. In the Appeal Board's view, those surveys were entitled to greater weight than the Licensing Board had accorded them. In fact, given that it was the applicant's burden to prove ;
reasonable assurance that adequate protective measures could and l would be taken in an emergency, the applicant was obliged to produce affirmative evidence of an adequate number of available drivers from some source, once the survey results substantially clouded that matter with doubt.
ALAB-836, 23 NRC at 518 (citing Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 345 (1973).
For example, in opposing the Governments' appeal of certain issues decided by this Board in the PID, LILCO argued as follows:
The evidence of opinion polls is no better. LILCO proved in this case that opinion polls cannot be used to predict behavior in an actual emergency. NRC case law agrees. And the particular polls ruled inadmissible by the Board were not even taken of people with a role in the Shoreham plan.
LILCO's Appeal Board Brief, at 52 (footnotes omitted).
This argument was renewed by LILCO after the Appeal Board reversed this Board's exclusion of the firemen survey and remanded Contention 25.C for further hearings. In petitioning the Commission to review the Appeal Board's decision, LILCO argued that (T]he (firemen] opinion poll could not have affected the Licensing Board's ultimate decision. LILCO's testimony showed that opinion surveys should not be used as an emergency planning tool because they are not a reliable guide to what people will do in a real emergency.
Indeed, the use of such polls can actually be harmful, because they may cause plans to be based on incorrect assumptions about behavior . . . Thus the (firemen] poll is simply not material, and further protracted litigation over it would be an unproductive exercise.
LILCO's Commission Brief, at 9-10 (footnote omitted).
Obviously, neither the Appeal Board nor the Commission has adopted LILCO's views regarding the validity and value of opinion polls on the subject of school bus driver availability. To the contrary, the Commission's refusal to review the Appeal Board's remand, and the language employed by the Appeal Board in l 1
remanding, make clear that this Board's findings regarding the l predictive value of surveys were wrong. l l
l 1
l a _ _ _ _ - _
P l .
L !
Furthermore, as previously indicated, the conclusions reached-l by the Appeal, Board in ALAB-832 regarding.the validity and value of surveys were adopted in the Limerick proceeding. The Appeal !
Board there concluded ~that the bus driver surveys at issue were
! entitled to greater weight than the Licensing Board had accorded them.- In the_ Appeal Board's opinion,'once-the survey results had "substantially clouded" the issue of whether there was an adequate number of.available drivers, it became the applicant's obligation to produce affirmative evidence in its favor. Because such evidence was not forthcoming, the Appeal Board concluded that the Licensing Board's finding of reasonable assurance of a sufficient number of bus drivers willing to respond during an emergency was not adequately supported by the record, and it remanded the matter for further action.
The reasoning of the Appeal Board in Limerick is especially instructive, given the fadts in that case. Two bus driver surveys had been conducted there. One revealed that while 25 of.43 bus drivers would likely report for duty, many -- estimated by the school superintendent to be as many as one-third -- would do so only after the safety of their own families had been assured. The other survey revealed that 13 of 40 drivers unequivocally would report, while six would refuse to drive; the other 21 failed to respond or were uncertain. ALAB-836, 23 NRC at 517, 518.
Despite the rather incomplete results of these surveys as compared to the bus driver and firemen surveys in this case, the Limerick' Appeal Board found that a substantial number of the I
drivers surveyed could not "be fairly counted on." Id. at 517.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ , )
?-
l, t
l' Thus, it conclude'd that the two bus driver surveys " raised a legitimate question whether there is reasonable assurance that an adequate number of drivers would respond in an' emergency."' In reaching this conclusion, the Licensing' Board was criticized for not giving " adequate weight" to the largely negative'results of the surveys. Id. at 518-19. .
l
)
In light of the Appeal Board's pronouncements in Limerick --
pronouncements that LILCO does not even cite, much less deal with in its motion for summary disposition -- and, more importantly, the Appeal Board's guidance in this case, there is no basis for concluding, as LILCO would have this Board do, that school bus
)
I drivers would not be significantly impacted by role conflict in the event of a Shoreham emergency. There is simply no factual support in the record for such a conclusion, particularly in the context of a summary disposition motion. To the contrary, the l evidence of record, including the school bus driver survey data admitted by the Board, establishes that there is a significant f I
potential for role conflict among school bus drivers. This l 1
conclusion is made more firm when the results of the firemen j l
survey are taken into account, as this Board has been instructed j i
to do.
l l
l j
i
r ..:
V. LILCO's " Commitment" to Recruit and Train Its Own Personnel to Drive School Buses Provides No Basis for Grantino Summary Disposition In addition to the above arguments, LILCO bases its motion for summary disposition on " commitments" to " offer ( ) to work with the school districts to train, equip, and reimburse the existing school bus drivers" and, to " recruit [-] additional auxiliary bus drivers to meet the required number of drivers to accomplish a one-wave evacuation," who could serve as primary bus drivers as well as " backups" for those regular school bus drivers who do not show up in the event of a Shoreham emergency. LILCO's Motion at 12, 15. LILCO describes its commitments as an " interim measure,"
which it believes could be made a license condition, with l authority given to the NRC Staff for ensuring compliance. Id. at 12, 18 .' For the reasons discussed below, this Board should find that LILCO's proposed commitments, even if eventually implemented, provide no basis for: granting LILCO summary disposition.
l A. LILCO's Proposed Commitments Amount to a Fundamental Chance in LILCO's Plan As previously discussed, LILCO's proposed commitments amount to a new olan for implementing the protective action of evacuation for school children in the EPZ. While the proposed new plan offered by LILCO is wholly lacking in detail -- there are not even draft plan or procedure revisions to review and FEMA has not even been asked to review the new approach -- and, indeed, in most respects it is mere generalized hyperbole, it clearly differs I dramatically from previous versions of LILCO's Plan. Egg attached affidavit of Karla J. Letsche. Most importantly, LILCO proposes
_ . _ _ _ _ _ _ _ - ____-___a
7
- l
- ,j i
l for the first time to use LILCO employees to transport school i- children out of the EPZ:and to conduct a' school evacuation in one.
' wave: at least 222, but as many as 562 LERO bus: drivers, will l serve as primary drivers; any LERO drivers'not'needed as primary.
, drivers will serve as backup drivers.
l Such a fundamental change in LILCO's Plan raises many issues and concerns not previously litigated or even addressed in the earlier litigation, including,fby way of example: the amount of time'necessary to accomplist "a evacuation of school children un' der LILCO's new proposal; whether school districts or superintendents would, or could, permit LILCO employees to
-transport' school children; wht .er, and how, a " single wave" evacuation could be implemented by LILCO workers, particularly in the absence of any identified' reception centers to which the evacuated children would be taken; how LILCO employees responsible for transporting school children would'be notified and mobilized at preassigned bus yards; the impact on the implementability of other portions of LILCO's-Plan of having 562 additional emergency workers to mobilize, dispatch, communicate with, supervise, coordinate, and otherwise control; the adequacy of facilities to accomodate these new workers; the adequacy of equipment and other
'LERO staff to service and manage 562 additional workers; whether there would be an adequate number of buses available for use by LILCO's employees; the adequacy, legality, and efficacy of LILCO's proposed training of school bus drivers; the value, if any, of LILCO's " commitment" to offer training, equipment and compensation
4, to school bus drivers; and the impact of survey data and other evidence concerning role conflict on the adequacy and implementability of LILCO's new proposal.
Under these circumstances, there must be an opportunity for review, for focusing issues through contentions, and for discovery before this Board could seriously consider LILCO's new plan, much less consider a summary disposition motion on it. Summary disposition clearly may not be granted until there has been an opportunity to study and analyze LILCO's new proposal, with contentions filed and ruled upon by the Board and discovery conducted by the parties. Any other conclusion disregards established, proper procedures and ignores clear Appeal Board instructions to this Board in ALAB-832. Moreover, as already discussed above, summary disposition is also clearly improper since LILCO's new proposal fails even to address issues of early dismissal implementation or bus availability, both of which are expressly raised by the remanded Contention 25.C.
LILCO would also have this Board, contrary to the Appeal Board's direct instructions, not hold any further evidentiary hearings and not accept any additional evidence from any party other than LILCO in connection with the Contention 25.C remand.
In essence, LILCO urges the Board to reach the same conclusion on the school bus driver availability issue which the Appeal Board in ALAB-832 rejected by:
o summarily rejecting the survey evidence the Appeal Board ordered the Board to admit, without hearing testimony, other evidence, or argument as part of 1 the reconsideration ordered by the Appeal Board; '
f I u__=______ '
l o' adopting as " undisputed fact" LILCO's new proposal for evacuation of school children, even though this new proposal has never before been seen or reviewed by any other party, the Board, or FEMA; and o adopting as " undisputed fact" conclusory assertions of LILCO " intentions," " commitments," and
" opinions" as well as data supposedly related to LILCO's previously unheard-of proposal, even though none of the other parties to this proceeding has had an opportunity to conduct discovery or to otherwise scrutinize or challenge these unsupported LILCO assertions.
In short, LILCO invites the Board to commit clear error.
LILCO's Motion is particularly without merit because it blatantly ignores the Appeal Board's instructions to this Board in ALAB-832. There, the Appeal Board instructed that, on remand,
"(alll parties will be free to adduce additional evidence on the
[ school bus driver availability] issue" and that this evidence would have to be heard at a " reopened hearing." ALAB-832, 23 NRC at 154. Without discovery regarding LILCO's new proposal, however, LILCO's proposal, as presented in its motion for summary i
disposition, cannot be scrutinized; it is based upon no more than mere assertions, opinions, estimates, projections, opinions and intentions by LILCO.
Moreover, if summary disposition were to be granted, other parties will have been precluded from presenting additional evidence on the renanded issue. At this time, having had no opportunity to pursue discovery, it is not possible to address in detail the propcsals, commitments, and undocumented opinions and i beliefs upon which LILCO's Motion is based, or to specify affirmative evider.ce which may be presented. LILCO's Motion, l
a premised upon an entirely new, yet still executory " plan" for i
protective actions for school children, requires investigation, research and analysis of the feasibility, workability and adequacy of LILCO's new plan. That plan is premised upon mere predictions, opinions, beliefs, projections and estimates by LILCO which, for the most part, are wholly conclusory, without stated bases, detail, or authority. There must be an opportunity for discovery to determine the origin, bases, nature, reliability, accuracy, and relevance of such premises. Egg attached affidavit of Karla J.
Letsche.
For example, LILCO's Motion alleges that, based upon a recent telephone survey, LILCO believes that about 562 school bus drivers would be required to evacuate all public school children from the EPZ in a single wave. LILCO's Motion at 12. While LILCO attaches a copy of the survey results to its motion, it does not identify who conducted the survey or the respondents, nor is the survey {
instrument provided or even described; moreover, little or no f
information is given regarding how the survey was conducted and whether its results were verified. Discovery is required on these, and other, issues.
LILCO also alleges that the school districts themselves have on payroll or under contract at least 340 bus drivers. According to LILCO, this determination was made by " talking with each bus company, where possible, and to other people having access to this information . . . . LILCO's Motion at 13. Again, although the purported results of this " survey" were provided by LILCO, little additional information has been provided. Discovery is required,
l for example, with respect to who conducted the " survey," and when !
and how it was conducted, including who was contacted. It is not {
enough for LILCO to say that bus companies, "where possible," were contacted and otherwise "other people" having access to information were consulted. Additional information is required.
LILCO makes no mention of how its bus drivers would be permitted to move school children. LILCO obviously assumes, however, that they will be allowed to do so. The Governments ;
I demonstrate nelow that LILCO's plan is clearly illegal and thus can never be implemented. Assuming arcuendo that LILCO's plan is not unlawful, discovery will be required on all of the issues of how LILCO proposes to interface with schools to implement the LILCO proposed single-wave evacuation.
Finally, discovery is required with respect to LILCO's
" commitment" to recruit, train and have licensed its 562 employees who will serve as primary and backup bus drivers under its new proposal. For example, it will be necessary to inquire into how these people are recruited, the requirements and qualifications imposed on these personnel by LILCO, and the training provided them. LILCO's " commitments" with respect to compensating both its own personnel and any non-LILCO bus drivers who may participate in its training program also raise questions. In addition, LILCO's proposal to mobilize all 562 bus drivers in the event of a Shoreham emergency (LILCO's Motion at 17) requires careful scrutiny; discovery would be necessary, for example, regarding such issues as how these personnel would be notified, mobilized, dispatched, coordinated, and controlled. It must be notec that 1
1 E__ .
e .
L, e
l i
LILCO's proposal essentially increases by one-third the number of "LERO" personnel relied upon by LILCO in the event of a Shoreham I l
emergency. LILCO's proposal, however, makes no mention of how i these additional personnel would be briefed, equipped or assigned l duties or how LILCO would ensure that these extra 562 persons are managed in a way to ensure that the actions of other LERO 1 personnel are not disrupted, and that the protection allegedly afforded the public by the previously litigated version of its !
Plan is not diminished.
I While it would be possible to set forth many more additional examples of why discovery on LILCO's proposal is required, enough has been said. It was within LILCO's power to provide additional details and information concerning its proposal. LILCO chose not to do so, however. It must now suffer the consequences of that choice -- denial of its summary disposition motion.12/
ll/ In arguing that discovery of LILCO's new proposal is required before this Board can grant summary disposition in LILCO's favor, the Licensing Board's resolution of the remanded issue from the Limerick Appeal Board in ALAB-836 is instructive.
As previously noted, the remanded issue in Limerick., like the remanded issue here, concerned whether there was reasonable assurance of the availability of bus drivers to evacuate school children in the event of a radiological emergency. On remand, the Licensing Board directed the licensee, as the party with the burden of proof, to submit a proposal for resolution of the remanded issue. The proposal submitted was, in some respects, similar to LILCO's proposal here: a pool of 200 utility employees was made available to assist responsible County and school district authorities in the evacuation of the school districts. However, unlike LILCO's attempt to unilaterally impose its plan on the parties without comment or scrutiny of any kind, the Limerick Licensing Board invited comments and permitted discovery on the licensee's proposal by the other parties. It also established a schedule for filing testimony and held evidentiary hearings. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-86-32, 24 NRC 459 (1986),
aff'd, ALAB-857, 25 NRC 7 (1987). The Board in this case should do no less.
r B. LILCO's So-called " Material Facts" Fail to Support Its Motion Accompt.nying LILCO's Motion is a'" Statement of the Material Facts as to which LILCO Contends There Is No Genuine Issue to be Heard on Contention 25.C" (hereafter, "LILCO's Statement"). In l t
accordance with Section'2.749, the Governments attach hereto a Statement of Disputed Facts.
A number of observations are in order regarding LILCO's Statement. First, the vast majority of:LILCO's " facts" are not facts at all. Rather, they are mere statements about what LILCO hopes to do. Thus, there cannot even be a prediction whether these matters could be done -- the situation is still too executory. The Governments' submit that LILCO's " Facts" Nos. 7-21 fall into this category of LILCO statements of purported commitment; they are agt facts. They.accordingly do not constitute support for LILCO's Motion, as required by 10 CFR S2.749. !
Second, all of the " facts" in LILCO's Statement derive from i the affidavit of Douglas M. Crocker.ll/ While Mr. Crocker recites generally that he has personal knowledge of the matters he discusses, his affidavit does not "show affirmatively that the affiant is competent to testify to the matters stated therein."
10 CFR S2.749(b). For example, Mr. Crocker discusses the LILCO surveys (agg 11 3, 4, 6 of his affidavit), but there-is no ;
showing that Mr. Crocker had any involvement in those surveys or l$/ The Dreikorn affidavit submitted by LILCO concerns the u alleged benefits of training. LILCO's Statement does not rely j upon the Dreikorn affidavit at all, however.
l.
that he is competent to testify about them. The same is true regarding the rest of LILCO's " facts." Therefore, Mr. Crocker's affidavit is plainly too skeletal as to his personal knowledge and thus, none of LILCO's " facts" has in fact been properly supported.
Third, as set forth in the attached affidavit of Karla J.
Letsche, the Governments have had no opportunity to contest LILCO's " facts." Thus, while there are many reasons discussed above concerning why LILCO's Motion must be denied, it is also true under 10 CFR S2.749(c) that the Board must deny LILCO's Motion or order a continuance until an opportunity to contest ;
LILCO's asserted " facts" has been afforded the Governments. l Finally, as is clear from the firemen survey and other evidence of record, the Governments have presented competent data which support a finding that role conflict of bus drivers will be a serious problem under LILCO's Plan. Under settled law, this i Board must construe the facts most favorably to the Governments and thus find that there are material facts in dispute, thus requiring denial of LILCO's Motion. i C. LILCO's " Belief" that Regular School Bus Drivers Would Report for Duty Is Contrary to the Evidence of Record, as Well as the ,
Eyidence Imorocerly Excluded by this Board The record in this proceeding is replete with sworn testimony, by school officials and administrators, to the effect that substantial numbers of school personnel, including bus i
drivers, would resolve role conflict in favor of their family )
l obligations. See PID, 21 NRC at 677; Tr. 3174-75, 3178 (Smith); j
1.1
- Tr. 3089-91 (Petr11ak); Tr. 3128-29 (Rossi); 3150-54 (Jeffers, Rossi); Petrilak,7 ff.'Tr~. 3087, at 2-3; Jeffers and Rossi, ff..
'Tr. 3087, at 3; Tr. 9541-43. Evidence concerning'the results of
-the survey of school bus drivers introduced by Suffolk County demonstrates that'only 24 percent of the drivers surveyed responded that they would report for duty; 69 percent would first
.look after the health and safety of their families, and thus would not be available promptly to perform their' driving responsibilities. Cole, ff. Tr. 1216, at 7-8. Similarly, the testimony: excluded by this Board -- and ordered to be. accepted
'into evidence by the. Appeal Board in ALAB-832 -- regarding the results of the: firemen survey and why that' survey is relevant and highly. probative to the implementability of LILCO's Plan 19/
demonstrates that personnel relied upon by LILCO, including bus drivers, would be significantly impacted by role conflict.
Accordingly, while LILCO may "believe" that the regular school bus drivers for school districts in the EPZ would do their jobs in.a Shoreham emergency (LILCO's Motion at 13-14), this belief is unsupported by the record. Indeed, in light of the fact that, in ,
i the context of LILCO's motion for summary disposition, the excluded firemen survey results and related testimony must not only be accepted into evidence, but assumed to be true, by this Board, LILCO's " belief" that regular school bus drivers would experience little or no role conflict is entitled to no weight.
l 19/ Egg, e.o., Cole, ff. Tr. 1216, at 12-16, 18; Erikson and Johnson, ff. Tr. 1455, at 24-26, 28, 30.
i
None of the reasons advanced by LILCO for why it expects these bus drivers to perform their regular jobs in a radiological emergency (LILCO's Motion at 14) changes this conclusion. It is of little consequence that these drivers ordinarily drive children in school buses, or that they have familiarity with their jobs, or that LILCO will offer the drivers, through the school districts, training and dosimetry. LILCO, for example, has before offered to train and equip these drivers; the offer, however, has been consistently rejected by the school districts. Indeed, no district has stated a willingness to follow LILCO's Plan, much less agreed to do so, and LILCO's own witnesses have conceded that nearly all school districts in and near the Shoreham,EPZ have refused to participate in planning with LILCO -- a fact i
acknowledged by this Board. Sag, e.g., Cordaro et al., ff. !
Tr. 9154, at 29-30; PID, 21 NRC at 856.
Furthermore, even assuming arcuendo that training provides a means for keeping role conflict from being a significant problem
-- a theory consistently advanced by LILCO but belied by the results of the firemen survey and other evidence of record -- ;
i there is no reason for believing that LILCO's training program is sufficiently adequate to accomplish this goal. To the contrary, the evidence suggests that the training that has been offered by LILCO has been inadequate.22/ Indeed, even the NRC Staff, in the related OL-5 exercise proceeding, has concluded as much, urging i
2q/ Of course, at this time LILCO has not made known any information about the training it says will be offered to the (
school bus drivers. The training, however, would be provided by l LILCO, and therefore it is reasonable to Jonclude that it would l be entirely inadequate.
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_ _ _ _ _ _ - _ - _ _ _ _ _ _ _ 1
9 that LILCO's training program is fundamentally flawed. Egg NRC Staff's Proposed Findings of Fact and Conclusions of Law on the February 13, 1986 Emergency Planning Exercise, Sept. 11, 1987, at 184-86. Thus, this Board could hardly accept as " uncontested" the alleged " fact" that LILCO's to-be-offered training would eliminate s role conflict and result in the availability of a sufficient number of school bus drivers.
D. There Is No Precedent for the Proposal Advanced by LILCO Contrary to LILCO's assertion (at page 16), there is no precedent for finding that LILCO's proposal is sufficient as a matter of law in providing reasonable assurance that there would be an adequate number of bus drivers available to implement protective actions for school children in the event of a Shoreham emergency. LILCO is correct that utility bus drivers were made available as backups at Indian Point. In that case, however, the utility's employees were used to back up drivers assigned the job of evacuating the general population, not school children. They were not the primary drivers of buses evacuating school children, 1 l
as proposed here. Moreover, as previously discussed, while utility bus drivers provided the solution to an issue similar to the one here at the Limerick plant (LBP-86-32, 24 NRC 459), that solution was judged acceptable only after discovery regarding the licensee's proposal had occurred, an evidentiary hearing had been held, and the school districts had agreed to accept the utility l
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1 drivers. Limerick, therefore, presented a situation entirely unlike the situation now before this Board on LILCO's motion for summary disposition. .
E. In any Event, LILCO's Proposal Is Unworkable and Prec.1.uded by State Law The record in this proceeding includes the testimony of school district officials and administrators, to the effect that ,
school districts would not permit LILCO to transport their students or to otherwise take responsibility for students' safety.
Ege, e.o., Petrilak, ff. Tr. 3087, at 5. Thus, LILCO's entire new
" plan" is disputed by the facts of record.
Further, however, it is clear that LILCO's Plan is not lawful. New York State law requires that school bus drivers must be accroved by the chief school administrator of a school district before they can drive buses within the district. Eg- N.Y.
Education Law S 3624 (McKinney 1981). No such approvals have been obtained by LILCO for LILCO drivers. Further, under Section 156.3 of Title 8 of the official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR"),21/ school bus {
l drivers must be found by the school district superintendent for j their district to be of " good moral character and thoroughly I
reliable." No such findings have been made for LILCO drivers. j j
And under Section 509-j(b) of the State Vehicle and Traffic Law )
and 15 NYCRR Section 6.23,22/ " political subdivisions" may impose
\
21/ N.Y. Comp. Codes R. & Regs. tit. 8, S 156.3 (1986).
22/ N.Y. Vehicle and Traffic Law S 509-j(b) (McKinney 1986); I N.Y. Comp. Codes R. & Regs. tit. 15, S 6.23 (1985). l
additional qualifications for school bus drivers.23/ LILCO has
.)
made no attempt to show that it has even considered, much less is able to satisfy, these State-imposed requirements. Thus, as of )
1 now, LILCO's proposal would violate State law. It clearly provides no basis for resolution in LILCO's favor.
VI. LILCO's Proposed License Condition Must Be Reiected i
LILCO not only seeks summary disposition of Contention 25.C, as remanded in ALAB-832, but it also asks the Board to authorize issuance of a full power operating license, " conditioned on the successful demonstration to the NRC Staff that 562 drivers are available to drive in a radiological emergency." LILCO's Motion at 18. The Governments submit that, just as it would be error for the Board to summarily dispose of the school bus driver availability issue on the basis of LILCO's Motion, it would be contrary to law for the Board not to retain jurisdiction of this matter.
The Governments have already discussed the many reasons why LILCO's Motion on the merits must be rejected. These same arguments compel rejection of LILCO's proposed " condition" as well.
Further, the Board has a duty to make findings on critical issues of health and safety prior to the issuance of an operating license. It is not empowered to delegate that obligation to the 23/ The above-mentioned statutory and regulatory provisions are l
only a sampling of the many requirements imposed on school bus drivers under New York State law.
t Staff.24/ Instances where matters may properly be left to.the Staff are limited to minor procedural deficiencies or issues where I on-the-record proceedings would not be helpful for resolution of i the issue.25/ The issue addressed by LILCO's new proposal for implementing protective actions for school children is neither minor nor procedural: it deals directly with the safety of more ;
than 27,000 school children. Moreover, how the Staff would determine or ensure compliance would be sheer speculation, since LILCO's proposal is really no more than a promise or expectation of eventual compliance. As such, it cannot be relied upon to make the findings requisite to issuance of an operating license.
1 VII. Conclusion i
For the foregoing reasons, LILCO's Motion should be summarily )
i rejected by this Board. l 1
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24/ See Cleveland Electric Illuminating Comoany (Perry Nuclear Power Plant, Units 1 and 2), ALAB-298, 2 NRC 730, 737 (1975); I Washinaton Public Power Sucolv System (Hanford No. 2 Nuclear i Power Plant), ALAB-113, 6 AEC 251, 252 (1973); consolidated l Edison Comoany of New York (Indian Point Station, Unit No. 2), !
CLI-74-23, 7 AEC 947, 951-52 (1974). Egg also Public Service Comoany of Indiana (Marble Hill Generating Station, Units 1 and 2), ALAB-461, 7 NRC 313, 318 (1978) in which Staff counsel urged )
that factual determinations related to the issue of an I applicant's financial obligations should not be left to the Staff, noting that " delegating open matters to the Staff for post-hearing resolution is a practice frowned upon by both the Commission and this [ Appeal] Board . . . ."
25/ Egg, e.a., Consolidated Edison, 7 AEC at 951 and note 8; Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-39, 15 NRC 1163, 1216 (1982).
B. LILCO's So-called " Material Facts" Fail to Succort Its Motion Accompanying LILCO's Motion is a " Statement of the Material Facts as to which LILCO Contends There Is No Genuine Icaue to be Heard on Contention 25.C" (hereafter, "LILCO's Statement"). In accordance with Section 2.749, the Governments attach hereto their Statement of Disputed Facts.
A number of observations are in order regarding LILCO's Statement. First, the vast majority of LILCO's " facts" are not facts at all. Rather, they are mere statements about what LILCO hopes to do. Thus s it cannot even be predicted whether these matters could be done -- the situation is still too executory.
The Governments submit that LILCO's " Facts" Nos. 7-21 fall into this category of LILCO statements of purported commitment; they I
are aqi facts. They accordingly do not constitute support for LILCO's Motion, as required by 10 CFR $2.749.
Second, all of the " facts" in LILCO's Statement derive from the affidavit of Douglas M. Crocker.lS/ While Mr. Crocker recites generally that he has personal knowledge of the matters he discusses, his affidavit does not "show affirmatively that the affiant is competent to testify to the matters stated therein."
10 CFR S2.749(b). For example, Mr. Crocker discusses the LILCO surveys (agg 11 3, 4, 6 of his affidavit), but there is no showing that Mr. Crocker had any involvement in those surveys or IE/ The Dreikorn affidavit submitted by LILCO concerns the alleged benefits of training. LILCO's Statement does not rely upon the Dreikorn affidavit at all, however.
on .]
I j
that he is competent'to testify.about'them.. The same is true f 1
regarding the 't .St'of LILCO's " facts." Therefore, Mr. Crocker's; affidavit is plainly! too skeletal as to his persona 11 knowledge:
i an'd,.thus, none.of LILCO's " facts" has in fact.beeniproperly supported.
Third, as set forth in the attached affidavit'of Karla J.
Letsche, the Governments have had no opportunity to contest LILCO's " facts." :Thus, while there are many-reasons discussed above.concerning why LILCO's Motion must be denied,.it is also true under 10 CFR $2.749(c) that the Board must deny LILCO's k
Motion or at least. order a continuance until an opportunity to ,
i contest LILCO's asserted " facts" has been afforded the Governments.
Finally, as is clear from the firemen survey and other evidence of record, the Governments have presented competent data which support a finding that role conflict of bus drivers will be
- a. serious problem under LILCO's Plan. Under settled law, this Board must construe the facts most favorably to the Governments and thus find that there are material facts in dispute. This, course, then requires denial of LILCO's Motion.
C. LILCO's " Belief" that Regular School Bus Drivers Would Report for Duty Is Contrary i to the Evidence of Record, as Well as the Evidence Imoronerly Excluded by this Board -
The record in this proceeding is replete with sworn testimony, by school officials and administrators, to the effect that substantial numbers of school personnel, including bus drivers, would resolve role conflict in favor of their family .
1 obligations. Egg PID, 21 NRC at 677; Tr. 3174-75, 3178 (Smith);
. i
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Tr. 3089-91 (Petrilak); Tr. 3128-29 (Rossi); 3150-54 (Jeffers, Rossi); Petrilak, ff. Tr. 3087, at 2-3; Jeffers and Rossi, ff. j Tr. 3087, at 3; Tr. 9541-43. I Evidence concerning the results of the survey of school bus drivers introduced by Suffolk County demonstrates that only 24 percent of the drivers surveyed responded that they would report for duty; 69 percent would first look after the health and safety of their families, and thus would not be available promptly to perform their driving responsibilities. Cole, ff. Tr. 1216, at 7-8. Similarly, the testimony excluded by this Board -- and ordered to be accepted into evidence by the Appeal Board in ALAB-832 -- regarding the ,
'I results of the firemen survey and why that survey is relevant and i highly probative to the implemertability of LILCO's Plan 19/
demonstrates that personnel relied upon by LILCO, including bus drivers, would be significantly impacted by role conflict.
Accordingly, while LILCO may "believe" that the regular school bus drivers for school districts in the EPZ would do their jobs in a Shoreham emergency (LILCO's Motion at 13-14), this belief is unsupported by the record. Indeed, in light of the fact that, in the context of LILCO's motion for summary disposition, the excluded firemen survey results and related testimony must not only be accepted into evidence, but assumed to be true, by this Board, LILCO's " belief" that regular school bus drivers would experience little or no role conflict is entitled to no weight.
19/ Egg, e.a., Cole, ff. Tr. 1216, at 12-16, 18; Erikson and Johnson, ff. Tr. 1455, at 24-26, 28, 30.
M None of the reasons advanced by LILCO for why it expects these bus drivers to perform their regular jobs in a radiological emergency (LILCO's Motion at 14) changes this conclusion. It is of little consequence that these drivers ordinarily drive children in school buses, or that they have familiarity with their jobs, or that LILCO will offer the drivers, through the school districts, training and dosimetry. LILCO, for example, has before offered to train and equip these drivers; the offer, however, has been consistently rejected by the school districts. Indeed, no district has stated a willingness to follow LILCO's Plan, much less agreed to do so, and LILCO's own witnesses have conceded that nearly all school districts in and near the Shoreham EPZ have refused to participate in planning with LILCO -- a fact acknowledged by this Board. Egg, e,q., Cordaro et al., ff.
Tr. 9154, at 29-30; PID, 21 NRC at 856.
Furthermore, even assuming arcuendo that training provides a means for keeping role conflict from being a significant problem
-- a theory consistently advanced by LILCO but belied by the results of the firemen survey and other evidence of record --
there is no reason for believing that LILCO's training program is j sufficiently adequate to accomplish this goal. To the contrary, the evidence suggests that the training that has been offered by 1
LILCO has been inadequate.31/ Indeed, even the NRC Staff, in the I related OL-5 exercise proceeding, has concluded as much, urging 2E/ Of course, at this time LILCO has not made known any information about the training it says will be offered to the school bus drivers. The training, however, would be provided by LILCO, and therefore it is reasonable to conclude that it would be entirely inadequate.
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thatbILCO'strainingprogramisfundamentallyflawed. See'NRC.
i Staff's Proposed Findings of Fact and Conclusions of Law on the
. February 13, 1986 Emergency Planning Exercise, Sept. 11, 1987, at 184-86. Thus, this Board'could hardly accept as " uncontested" the alleged " fact" that LILCO's to-be-offered-training would eliminate l
role conflict and result in the availability of a sufficient number of school bus drivers. i D. There Is No Precedent for >
the Procosal Advanced by LILCO Contrary to LILCO's assertion (at page 16), there la no precedent for finding that LILCO's proposal is sufficient ao a matter of law in providing reasonable assurance that there would be an adequate number of bus drivers available to implement protective actions for school children in the event of a Shoreham emergency. LILCO is correct that utility bus drivers were made available as backups at Indian Point. In that case, however, the utility's employees were used to back up drivers assigned the job of evacuating the general population, not school children. They were not the primary drivers of buses evacuating school children, as proposed here. Moreover, as previously discussed, while utility bus drivers provided the solution to an issue similar to the one here at the Limerick plant (LBP-86-32, 24 NRC 459), that solution was judged acceptable only after discovery regarding the licensee's proposal had occurred, an evidentiary hearing had been held, and the school districts had agreed to accept the utility l
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drivers. Limerick, therefore, presented a situation entirely unlike the situation now before this Board on LILCO's motion for summary disposition.
E. In any Event, LILCO's Proposal Is Unworkable and Precluded by State Law The record in this proceeding includes the testimony of school district officials and administrators, to the effect that school districts would not permit LILCO to transport their students or to otherwise take responsibility for students' safety.
Egg, e.g., Petrilak, ff. Tr. 3087, at 5. Thus, LILCO's entire new i
" plan" is disputed by the facts of record.
Further, however, it is clear that LILCO's Plan is not lawful. New York State law requires that school bus drivers must be aooroved by the chief school administrator of a school district before they can drive buses within the district. Egg N.Y.
Education Law S 3624 (McKinney 1981). No such approvals have been obtained by LILCO for LILCO drivers. Further, under Section 156.3 of Title 8 of the official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR"),21/ school bus drivers must be found by the school district superintendent for their district to be of " good moral character and thoroughly reliable." No such findings have been made for LILCO drivers. j l
And under Section 509-j(b) of the State Vehicle and Traffic Law ]
and 15 NYCRR Section 6.23,32/ " political subdivisions" may impose l
31/ N.Y. Comp. Codes R. & Regs. tit. 8, S 156.3 (1986).
22/ N.Y. Vehicle and Traffic Law S 509-j(b) (McKinney 1986);
l N.Y. Comp. Codes R. & Regs. tit. 15, S 6.23 (1985).
l l 1
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additional qualifications for school bus drivers.23/ LILCO has I made no attempt to show that it has even considered, much less is i
able to satisfy, these State-imposed requirements. Thus, as of now, LILCO's proposal would viola'te State law. It clearly provides no basis for resolution in LILCO's favor. j VI. LILCO's Proposed License Condition Must Be Reiected LILCO not only seeks summary disposition of Contention 25.C, as remanded in ALAB-832, but it also asks the Board to authorize-issuance of a full-power operating license, " conditioned on the successful demonstration to the NRC Staff that 562 drivers are available to drive in a radiological emergency." LILCO's Motion at 18. The Governments submit that, just as it would be error for the Board to summarily dispose of the school bus driver availability issue'on the basis of LILCO's Motion, it would be contrary to law for the Board not to retain jurisdiction of this matter.
The Governments have already discussed the many reasons why
.LILCO's Motion on the merits must be rejected. These same arguments compel rejection of LILCO's proposed license " condition" as well.
Further, the Board has a duty to make findings on critical issues of health and safety prior to the issuance of an operating license. It is not empowered to delegate that obligation to the 23/ The above-mentioned statutory and regulatory provisions are only a sampling of the many requirements imposed on school bus drivers under New York State law.
o Staff.24/ I n s't a n c e s w h e r e m a t t e r s m a y p r o p e r l y b e l e f t to the l Staff are' limited to minor procedural deficiencies or issues where on-the-record proceedings would not be helpful for resolution of the issue.21/ The issue addressed by LILCO's new proposal for implementing protective actions for school children is neither j minor nor procedural: it deals directly with the safety of more j than 27,000 school children. Moreover, how the Staff would I
determine or ensure compliance would be sheer speculation, since LILCO's proposal is really no more than a promise or expectation of eventual compliance. As such, it cannot be relied upon to make the findings requisite to issuance of an operating license. !
VII. Conclusion j For the foregoing reasons, LILCO's Motion should be summarily rejected by this Board.
I i
24/ Egg Cleveland Electric Illuminating Comoany (Perry Nuclear Power Plant, Units 1 and 2), ALAB-298, 2 NRC 730, 737 (1975);
Washincton Public Power Sucolv System (Hanford No. 2 Nuclear Power Plant), ALAB-113, 6 AEC 251, 252 (1973); consolidated Edison Comoany of New York (Indian Point Station, Unit No. 2),
CLI-74-23, 7 AEC 947, 951-52 (1974). Egg also Public Service Company of Indiana (Marble Hill Generating Station, Units 1 and 2), ALAB-461, 7 NRC 313, 318 (1978) in which Staff counsel urged that factual determinations related to the issue of an applicant's financial obligations should not be left to the Staff, noting that " delegating open matters to the Staff for post-hearing resolution is a practice frowned upon by both the Commission and this (Appeal] Board . . . . "
25/ Ege, e.o., Consolidated Edison, 7 AEC at 951 and note 8; Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-39, 15 NRC 1163, 1216 (1982).
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Respectfu'lly submitted, l
' Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788.
1 Lawrence Coe Lanpher Karla J..Letsche Michael S. Miller Kirkpatrick & Lockhart 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C. 20036-5691 Attorneys for Suffolk County q Y
Fabian G. Palomino-0 ???1 A 4 /1//-)
Special Counsel to the Governor of the State of New York ;
Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Richard J. Zahnleuter Deputy Special Counsel to the Governor of the State of New York Executive Chamber Room Number 229 Capitol Building ,
Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York W
Step' hen B. Latham Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton
, +,
,:ys-;
L" >
STATEMENT.OF' MATERIAL FACTS AS TO
' ' ,WHICH THERE. EXISTS A-GENUINE ~ ISSUE TO-BEJ. HEARD ON MATTERS RAISED'BY LILCO'S MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION 25'.C-l 1.- Whether LILCO's. proposal for. implementing protective actions for school' children during'a Shoreham emergency by-having
' LILCO. employees s act as ' school bus drivers - (hereaf ter, L "LILCO's.
proposal") provides reasonable assurance'that' adequate, protective t
measures can and will be taken, as required by 10 CFR:
l ,
S: 50.47(a)(1).
L2. Whether, under LILCO's proposal, there can be a' finding 6 :of? compliance with'~10 CFR S 50.47(b)(1).
.3. Whether, under.LILCO's proposal, there can be a' finding'-
of compliance with 10 CFR S 50.47(b)(3).
4.- Whether,.under LILCO's. proposal, there can'be a finding of compliance with NUREG 0654 S II.A..
- 5. Whether, under LILCO's proposal, there can be a finding of. compliance.with NUREG 0654 S II.C.
6.- What would be the impact, on implementation of other portions of-LILCO's Plan, of 562 additional LERO members,'as provided by LILCO's proposal, whose activities must be coordinated and controlled.
m
. 7 ~. ' Whether, under LILCO's proposal to perform lut J evacuation of-all school-children in a single wave, evacuation of' theLtrans'iti dependentspopulation, residents of special facilities
-other than schools, and the. homebound, could and would be L
implemented as provided in'the LILCO Plan.
- 8. Whether the data collected in LILCO's' July and October 1987 telephone. surveys are' accurate, reliable, or sufficient to-determine the number of school bus' drivers needed to implement a
. safe single wave! evacuation of school children living or !
Lattending school.in the EPZ during a Shoreham emergency. .
9.. Whether, as of October 1987, school enrollment for all school districts within the 10-mile Shoreham EPZ was 27,179.
- 10. Whether provisions for LERO bus drivers to transport handicapped, parochial, and nursery school children could or would be implemented as set forth in the LILCO Plan, under LILCO's new proposal for a single wave evacuation of all school children.
- 11. Whether a total of 562 school bus drivers would be sufficient to implement a safe evacuation of all school children living or attending school in the EPZ in a single wave during a Shoreham emergency.
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- 4 .-
6-s 112. ~Whether" data collected by;LILCOEconcerning:the number a l
.of Esch oo1 bus drivers on' payroll or under contract to the school
~
H districts within theJ10-mile Shoreham EPZ.are~ accurate, reliable.
or sufficient-to' determine how many additional drivers would be
< . necessary to' implement a single wave evacuation of all school children Lliving 'or ' attending school in the' EPZ.
- 13. Whether LILCO will be able to recruit 562 of its own employees with adequate qualifications and capabilities to-
. perform as school bus drivers during a Shoreham' emergency.
- 14. -Whether, under LILCO's proposal, a safe' evacuation of all school ~ children living or attending school within the 10-mile Shoreham EPZ could and would be implemented in a single wave, in light of the ' fact that LILCO has identified'no reception centers'-
for school children evacuees.
- 15. Under LILCO's proposal, how long would it take to accomplish an evacuation of all school children living or attending school in the EPZ.
16, Whether, under LILCO's proposal, evacuation would be an adequate or viable protective action for school children. !
- 17. Whether, assuming that LILCO is able to recruit its own employees to act as school bus drivers, such employees would be j able to satisfy the requirements for bus drivers imposed by LILCO.
v
.18 . Whether~the requirements LILCO proposes to impose upon:
its employees who maylagree to act as school bus drivers in~a-Shoreham emergency are sufficient to result in qualifying LILCO's employees to: drive. school buses and transport. school children under applicable law and. regulations.
- 19. Whether under LILCO's proposal, LILCO. employees:could lawfully act as school bus drivers. !
- 20. Whether the school districts or school superintendents within the 10-mile Shoreham EPZ could or would permit LILCO employees to act as school bus drivers and transport school children in their charge, as proposed.by LILCO.
I
- 21. - During what, if any, emergencies (other than snowstorms), are regular school bus drivers expected to drive school buses.
- 22. Whether, assuming LILCO were to require and provide training to its employees who may agree to act as school bus 1 drivers, such training would be adequate to qualify such employees to drive school buses and transport school children !
under applicable law.
l
- 23. What impact, if any, would LILCO's proposal to compensate, by regular hourly wages, overtime, bonuses or otherwise, its employees who may agree to act as school bus
drivers, have upon the' effectiveness or adequacy of LILCO's training of those employees to perform as school' bus drivers during a Shoreham emergency.
- 24. Whether LILCO's offer to provide regular school bus drivers.thE same training provided to LILCO employees who agree to act as school bus drivers would be accepted by any regular school bus drivers or. school districts.
- 25. What impact, if any, would LILCO's offer to train regular school bus drivers have on how role conflict would be resolved by such school bus drivers during a Shoreham emergency, i
- 26. What. impact, if.any, would LILCO's proposal to I compensate, by reimbursing for time spent in training, payment of bonuses, or otherwise, any regular school bus driver who agrees
- taa participate in its training program, have upon how role conflict would be resolved by such drivers during a Shoreham emergency. !
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- 27. What impact, if any, would LILCO's proposal to equip each employee and regular school bus driver who agrees to j participate in its training program with direct reading 1 .
! dosimeters, have upon how role conflict would be resolved by such persons during a Shoreham emergency.
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- 28. How would or could LILCO's proposal to have regular school bus drivers participate in LILCO's Family Tracking System be implemented during a Shoreham emergency?
- 29. What impact, if any, would LILCO's offer, to permit !
regular school bus drivers who may agree to participate in its i
training program to participate in the so-called LERO Family Tracking System, have on how role conflict would be resolved by such drivers during a Shoreham emergency.
- 30. Whether under LILCO's proposal, all LILCO employees who l may agree to act as school bus drivers could be notified and fully mobilized in a timely manner during a shoreham emergency.
- 31. How could or would the actions of LILCO-employed school bus drivers be coordinated with those of individual school districts, schools, and school bus drivers during a Shoreham emergency.
- 32. How would LILCO's proposal to have its employees who !
agree to act as school bus drivers preassigned to bus yards be 1 implemented during a Shoreham emergency. 1 l
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- 33. Whether under LILCO's proposal, there would be a sufficient number of buses available to effectuate a single-wave evacuation of all school children during a Shoreham emergency.
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- 34. Whether bus' companies, which own the bus yards to'which
.LILCO proposes to " preassign" its employees who agree to act as-school bus _' drivers, have agreed to.such use of its yards by LILCO.
- 35. Whether LILCO's proposal to have its employees j implement an evacuation of school children could, in fact, be implemented, in light-of the fact that regular school bus drivers 1 1
would have possession of many of the school buses necessary to i perform'such an evacuation.
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- 36. Whether an early. dismissal of school children as )
proposed in.the LILCO Plan could or would be implemented, in light of survey data and other evidence that a substantial number i of school bus drivers would not be available to perform an early dismissal of school children during a Shoreham emergency.
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- 37. Whether, in light of evidence that school authorities would not permit LILCO employees to transport children during a Shoreham emergency, LILCO's proposal could or would be implemented.
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