ML20237B676

Partial Initial Decision.* Decision LBP-87-32 Concluding That Plant 861213 Offsite Emergency Plan Exercise Failed to Comply W/Requirements of 10CFR50,App E,Paragraph IV.F.1. Served on 871208

ML20237B676
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	12/07/1987
From:	Frye J, Paris O, Shon F Atomic Safety and Licensing Board Panel
To:
References
CON-#487-5101 86-534-01-OL, 86-534-1-OL, LBP-87-32, OL-5, NUDOCS 8712170052
Download: ML20237B676 (61)

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'87 DEC -8BP-10232 UNITED STTES OF AMERICA OUICE si ib r.t. ie <

NUCLEAR REGULATORY COMMISSbbhfhcjli<VICl.'

ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: SERVED DEC -81987 John H Frye, III, Chairman Dr. Oscar H. Paris Frederick J. Shon

)

In the Matter of ) Docket No. 50-322-OL-5

) (Emergency Planning)

LONG ISLAND LIGHTING COMPANY )

) ASLBP No. 86-534--1 OL (Shoreham Nuclear Power )

Station, Unit 1) )

)

December 7, 1987 PARTIAL INITIAL DECISION Appearances Donald P. Irwin, Lee B. Zeugin, Kathy E. B. McCleskey, and Jessine A. Monaghan, Hunton & Williams, Richmond, Virginia, for the Long Island Lighting Company.

Lawrence Coe Lanpher, Karla J. Letsche, and Michael S.

Miller, Kirkpatrick & Lockhart, Washington, D. C. for Suffolk County, New York.

Richard J. Zahnleuter, Albany, New York, for Mario M. Cuomo, Governor of the State of New York.

Oreste R. Pirfo, Charles A. Barth, and George E. Johnson,

,Bethesda, Maryland, for the Nuclear Regulatory Commission Staff.

William R. Cumming, Washington, D. C., for the Federal Emergency Management Agency.

9712170052 071207 PDR ADOCK 0500 {2 DSO2-L - - - - - - - -

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INTRODUCTION In this Partial Initial Decision, we address the question whether the February 13, 1986 Exercise of the offsite emergency plan for the Shoreham Nuclear Power Stauion satisfied the terms of 10 CFR Part 50,-Appendix E, paragraph IV.F.1. That provision states the requirements for initial exercises of offsite emergency plans for power reactors which must occur prior to commercial operation.

This question.was presented by Contentions EX-15 and EX-16, which assert that the exercise was too limited in scope, and )

by Contention EX-21, which asserts that the sample sizes used by FEMA were too small to support its conclusions. We have concluded that, because of the failure to test certain functions, the exercise did not meet the requirements of.

paragraph IV.F.1.

The issues raised by these contentions present ques- l tions not previously resolved in an adjudication. Our l conclusions on those questions may have a substantial impact on the posture of this proceeding. Thus, while we are still considering the parties' positions with respect to LERO's performance during the exercise, we have decided to issue this Partial Initial Decision detailing the reasons for our

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conclusion in advance of our decision on the remainder of We believe this to be consistent with the l the contentions.

I Commission's direction to expedite this proceeding to the maximum extent consistent with fundamental fairness. .

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j This case represents the first time that, because of j State and local government opposition to its application, a power reactor operating license applicant has taken on the j j

1 entire responsibility for offsite emergency preparedness.

Long Island Lighting Company ("LILCO") has done this by preparing an offsite emergency response plan, known as the l

l "SNPS Local Offsite Radiological Emergency Response Plan"

("LILCO Plan"), and by setting up an organization that would implement the Plan in an emergency, known as "LERO" (Local l

Emergency Response Organization). LERO is composed primar-ily of LILCO employees and contractors, working with support organizations such as the American Red Cross, the U. S.

Coast Guard, the U. S. Department of Energy, and various i bus, ambulance, and service companies. See LILCO Plan, Chap. 2.

I The adequacy of offsite preparedness was extensively considered by the Licensing Board in proceedings spanning j i

1983 through 1985. Interveners Suffolk County, the Shoreham I Opponents coalition, the Town of Southampton, the North

l Shore Coalition, and New York State raised issues regarding I the planning aspects of the LILCO Plan. After hearing, the Licensing Board issued a Partial Initial Decision ("PID") on offsite emergency planning. See Long Island Lighting Co.

l (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644 (1985). The PID included findings of fact and conclu- <

sions of law on issues of human behavior, credibility, conflict of interest, EPZ boundary, LERO workers, training, notification, information to the public, sheltering, protec-tive action recommendations, evacuation, special facilities, schools, ingestion pathway, loss of offsite power, strike by LILCO employees, and legal authority issues.

After further hearings on the issue of relocation centers, the Licensing Board issued a concluding Partial Initial Decicion on emergency planning, ruling on the relocation center issues and on whether the LILCO Plan l provides reasonable assurance that adequate protective 1

neasures can and will be taken in the event of a radio-logical emergency at Shoreham. Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), LBP-85-31, 22 NRC 410 (1985). The Board found that it did not. The Board found that there is not "anything unique about the demog-raphy, topography, access routes or jurisdictional bound-aries in'the area in which Shoreham is located. To the ,

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contrary, the record fails to reveal any basis to conclude that it would be impossible to fashion and implement an effective offsite emergency plan for the Shoreham Plant."

However, the Board noted that its inability to find reason-able assurance stemmed in large part from Suffolk County's and New York State's opposition to the plant. Id. at 427.

Portions of these decisions on offsite emergency planning were appealed; certain aspects were remanded for further consideration before another Licensing Board, and some are still pending appeal.1 I

LILCO took appeals on three issues from the PID (legal authority, conflict of interest, and lack of state plan) and one issue from the concluding PID (concerning the number of persons who might seek monitoring). Interveners appealed a host of issues from both PIDs. The Appeal Board severed LILCO's legal authority appeals from the factual appeals, and affirmed the Licensing Board's findings on LILCO's preemption, realism, and immateriality arguments. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-818, 22 NRC 651 (1985). On review the Commission reversed, deferring consideration of the preemption question while remanding on the realism and immateriality arguments. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22 (1986).

The Licensing Board has not yet initiated proceedings on the realism remand.

The Appeal Board initially took up only Interveners' factual appeals; it affirmed the Licensing Board on most findings but remanded four issues: (1) EPZ size; 2) role conflict / school bus drivers; (3) hospital evacuatio(n plans; and (4) denial of discovery and evidentiary rulings relating to reception center issues. Long Island L1ghting Co.

(Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135 (1986). On petitions for review the Ccmmission accepted (Footnote Continued) i

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On June 20, 1985, the NRC, at LILCO's request, asked l FEMA to conduct an Exercise to test offsite emergency 4

preparedness at Shoreham based upon the LILCO Plan. In a one day Exercise held between 05:30 and 16:00 on j February 13, 1986, a team of 38 Federal evaluators observed and graded LERO's performance pursuant to that Plan. The results of the Exercise are set forth in a Post Exercise l

Assessment issued by the Federal Emergency Management Agency '

on April 17, 1986 (" FEMA Report"), which was admitted into evidence as FEMA Exhibit 1.

In a motion dated March 7, 1986, Suffolk County, New York State, and the Town of Southampton (" Interveners")

requested that the Commission advise the parties to this proceeding of their procedural responsibilities concerning (Footnote Continued) review of just three issues, two concerning EPZ size and the third concerning hospital evacuation plans. Order of September 19, 1986. In CLI-87-12, 26 NRC , (1987), the Commission affirmed the remand of the hospital evacuation issue and reversed the remand of the two EPZ size issues.

Upon the Commission's suggestion in CLI-86-13, the Appeal Board considered LILCO's appeals, ruling in LILCO's favor on conflict of interest and remanding on the absence of a state plan. Long Island Lighting Co. (shoreham Nuclear Power Station, Unit 1), ALAB-847, 24 NRC 42 (1986). The issue of j the suitability of the reception centers was litigated i recently before the OL-03 Board; that Board has recently i resolved the state plan issue by summary disposition. 4 LBP-87-30, 26 NRC .

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i any hearings on the February 13, 1986 Exercise. LILCO and the NRC Staff responded later that month; LILCO requested the appointment of a Board to hear exercise-related matters and the conduct of expedited hearings. On June 6, 1986, the Commission ordered "immediate initiation of the exercise hearing to consider evidence which Interveners might wish to offer to show that there is a fundamental flaw in the LILCO Emergency Plan." It directed the Chairman of the Atomic Safety and Licensing Board Panel to appoint a Board consist-ing of the members of the Board which issued the PID, if they were available. It directed that Board "to expedite the hearing to the maximum extent consistent with fairness to the parties, and to issue its decision upon the comple-tion of the proceeding." Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), CLI-86-11, 23 NRC 577, 582 (1986).

The litigation of the Exercise issues proceeded. The Interveners in this phase of the emergency planning litiga-tion are Suffolk County, New York State, and the Town of Southampton, although the Town of Southampton did not participate in the prehearing conferences or the hearing.

On August 1, 1986, Interveners submitted 162 pages of contentions which were ruled on by the Board in an unpub-lished Prehearing Conference Order of October 3, 1986. That i

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i Order prompted a motion for reconsideration from FEMA and objections from Interveners. In an unpublished Memorandum and Order of December 11, 1986, we clarified and largely reaffirmed the October 3 Order. FEMA sought interlocutory review of that portion of the latter Order which reaffirmed the admission of Contentions EX-15 and EX-16 which are decided herein. Its petition was denied in ALAB-861, 25 NRC 129 (1987).

The hearings on Contentions EX-15 and EX-16 began on May 13, 1987 with LILCO's witnesses and continued through May 15.2 Tr. 5961-6247. LILCO's panel resumed the stand and completed their testimony on May 20. Tr. 6801-6978.

LILCO's witness on Contention EX-21 testified on May 26.3 Tr. 7255-7354. New York State and Suffolk County presented testimony on Contentions EX-15 and EX-16 beginning on May 20 and concluding on May 21.4 Tr. 6918-7250. Suffolk's 2

LILCO's EX-15 and EX-16 testimony was presented by ,

Charles A. Daverio and Dennis M. Behr. It was admitted as I LILCO Exhibit 12. Tr. 5968. j 3

LILCO's testimony on EX-21 was presented by Charles A.

Daverio. It was admitted as LILCO Exhibit 21. Tr. 7267, 7359.

4 This testimony was presented by James C. Baranski, William Lee Colwell, Lawrence B. Czech, Gregory C. Minor, l (Footnote Continued) i

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i witness on Contention EX-21 testified on May 26 and June 18.5 Tr. 7354-7411, 8876-8915, respectively. FEMA pre-I sented its entire testimony June 9 through 12, 16 and 17.6 Tr. 7446-8750. Staff presented testimony on June 18. Tr.

8764-8876.

l All of the proposed findings of fact and conclusions of law submitted by the parties on Contentions EX-15, EX-16, and EX-21 have been considered in formulating this Decision.

Those not incorporated directly or_ inferentially in this Decision are rejected as unsupported in fact or law or as unnecessary to the rendering of this Decision.

(Footnote Continued)

James D. Papile, Charles B. Perrow, Frank R. Petrone, and Harcld Richard Zook. It'as w admitted as New York State Exhibits 1, 2, and 3. Tr. 7080. Mr. Zook withdrew for personal reasons. Tr. 7054.

S Suffolk's prefiled testimony was sponsored by Gary A.

Simon and Stephen Cole. The latter was unavailable to testify and the testimony was corrected appropriately. It was admitted as Suffolk County Exhibit 99. Tr. 7354-59.

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FEMA's testimony was presented by Roger B. Kowieski, {

Joseph H. Keller, and Thomas E. Baldwin. It was admitted as j FEMA Exhibit 5. Tr. 7453. In general, we found FEMA's 1 testimony to be forthright, candid, and unbiased. It has I been most valuable to us in the preparation of our decision on these and the remaining issues.

7 Staff's testimony was presented by Sheldon Schwartz and Bernard H. Weiss. It was admitted as Staff Exhibit 1.

Tr. 8765.

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DISCUSSION I. CONTENTIONS EX-15 AND EX-16 A. The Allegations Contentions EX-15 and -16 allege that the February 13, 1986 Exercise of the LILCO Plan was not a " full partici- {

l pation" exercise as defined in NRC regulations. Interveners 1

allege that the Exercise did not yield meaningful results on l implementation capability as required by 10 CFR 50.47 in-that it did not include demonstrations or evaluations of (1) major portions of the LILCO Plan or (2) the emergency response capability of many persons and entities relied upon

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for Plan implementation.

1 B. The Regulatory Scheme The Commission's regulations bearing on these conten -

tions state:

A full participation 4 exercise which tests as much of the licensee, State and local emergency plans as is reasonably achievable without mandatory public participation shall be conducted for each site at which a power reactor is located for which the first operating license for that site is j issued after July 13, 1982. This exercise shall be conducted within two years before the issuance  ;

of the first operating license for full power (one authorizing operation above 5% of rated-power) of ,

the first reactor and shall include participation by each State and local government within the  ;

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i plume exposure pathway EPZ and each State within the ingestion exposure pathway EPZ.

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" Full participation" when used in conjunction with emergency preparedness exercises for a particular site means appropriate offsite local and State authorities and licensee personnel physically and actively take part in testing their integrated capability to adequately assess and respond to an accident at a commercial nuclear power plant. " Full participation" includes testing the major observable portions of the onsite and offsite emergency plans and mobilization of State, local and licensee personnel and other resources in sufficient numbers to verify the capability to respond to the accident scenario.

10 CFR Part 50, Appendix. E IV.F.1.; 52 Fed. Reg. 16,823, 16,829 (May 6, 1987).

While the parties have focused principally on the terms of the quoted paragraph of the regulation, it is necessary to understand how that paragraph fits into the scheme of the provision dealing with exercises in order to understand the Commission's intent with regard to the scope of the exercise required prior to reactor operations in excess of 5% of rated power at a particular site (hereafter referred to as the " initial exercise"). The structure of paragraph IV.F, which contains the quoted paragraph as well as four others dealing with exercises, makes it clear that the initial exercise is to meet certain requirements that do not apply to subsequent exercises. After providing that exercises are

to be conducted, that provision lays down requirements applicable to initial exercises in paragraph 1, requires annual licensee exercises in paragraph 2, requires that State and local government plans for each operating reactor site be exercised biennially with either full or partial participation (hereafter referred to as " biennial exer-cises") and sets standards governing the frequency of both l full and partial State and local government participation in  !

l paragraph 3, provides for remedial exercises in paragraph 4, and requires critiques of exercises in paragraph 5.

i The quoted paragraph is unique in this scheme in that it requires full participation in the initial exercise for a site by each State and local government within the plume exposure pathway EPZ and each State within the ingestion i I

exposure pathway EPZ. In contrast, paragraph 3, while requiring full participation in at least one exercise at least biennially by each State and local government, permits partial participation with respect to any given site if the l

State or local government has fully participated at another site. Further, paragraph 3 allows a State which is included in any ingestion exposure pathway EPZ to exercise its related emergency plans only every five years.

Moreover, paragraph 1 states that the initial exercise is to "...[ test] as much of the licensee, State and local emergency plans as is reasonably achievable without manda-

-tory public participation...." No similar requirement is placed on subsequent exercises. Clearly, paragraph 1 states requirements for State and local participation in initial exercises which are unique to those exercises.

Thus it appears that the definition of " full partici-pation" found in footnote 4 applies to both initial and biennial exercises, and that paragraph IV.F.1 places certain requirements on initial full participation exercises that do not apply to biennial full participation exercises.

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C. LILCO's and Staff's Positions LILCO nonetheless takes the position that there are no additional requirements placed on initial full participation exercises. Staff agrees. LILCO notes that the Commission's regulations, as originally adopted in 1980, contained a l

requirement that offsite exercises for all plants -- whether achieving their full power licenses for the first time or already licensed -- must test "as much of the licensee, q State and local emergency plans as is reasonably achievable j without mandatory public participation." This condition )

applied to all offsite exercises until the paragraph was i

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1 amended in July 1984. LILCO states that during this period, exercises deemed " full scale" omitted various elements such as ingestion pathway and recovery / reentry, citing Tr. 7208-12 (Papile, Baranski).

LILCO notes that the July 1984 amendment relaxed the frequency of full participation exercises for sites with operating licenses.8 See 49 Fed. Reg. 27733-35 (July 6, 1984). In so doing the Commission revised the language of paragraph IV.F.1 to read essentially as it appears today, aside from a few unrelated differences. LILCO maintains that this amendment addressed only the frequency of exer-cises and was not intended by the Commission to make sub-stantive changes in the scope of initial and biennial full participation exercises. Tr. 6219-20 (Behr) ; Tr. 6191, 6853 (Daverio).

8 It is interesting to note that the July 1984 amendment transformed a statement that the initial exercise for a site should permit each State and local government within the plume exposure pathway EPZ and each State within the ingestion exposure pathway to participate into a requirement that they participate, while dropping the requirement that biennial exercises test "...as much of the ... plans as is reasonably achievable...."

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i LILCO correctly notes that the sentence structure:

A full participation exercise which tests as much of the licensee, State and local emergency plans as is reasonably achievable without mandatory public participation shall be conducted ... ,

is ambiguous because it confuses the grammatical rules concerning restrictive and nonrestrictive clauses. However, LILCO believes that the grammatical confusion is largely cleared up by the derivation of the sentence which shows that (1) the phrase " full participation" exercise (and its j apparently synonymous predecessor " full scale" exercise) applied to both initial exercises and plants which already held full power licenses, (2) exercises run during that period omitted various plan elements, yet were still found to comply with the Commission's regulations, and (3) there was no intent on the part of the Commission, evident from the Statement of Consideration in the 1984 amendment to the rule, to alter the general applicability or meaning of the phrase.

LILCO finds support for its position in the preface to the Commission's latest revision to these rules. See 52 Fed. Reg. 16823-29 (May 6, 1987). It notes that when the Commission revised its rules in 1984, it did not make a similar change regarding the required frequency of initial full participation exercises. However, concerned about i

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scheduling burdens as a result of a judicially-imposed requirement to subject exercise results to the hearing process as well as the resource burden placed on State and local governments by the requirements for annual full participation exercises, on May 6, 1987, the Commission l revised its rules to require a full participation exercise ,

within two years prior to the full-power licensing of a power plant -- the same scheduling requirement mandated for full participation exercises after licensing. 52 Fed. Reg.

at 16824.

In response to comments filed by citizen groups that opposed this latest rule change on the basis, inter alia, that it ignored a previously drawn distinction between pre- l and post-operational exercises, the Commission said there 1 was no reason to treat NTOLs and operating plants differ-ently: .

The Commission has...been left with a regulatory scheme for frequency of full participation emer-gency preparedness exercises that treats sites with an operating license differently than sites without an operating license. The Commission does "

not believe this disparity in treatment is l warranted....

52 Fed. Reg. at 16826. i As in the 1984 rulemaking, there is no discussion in the Statement of Consideration of imposing any special

additional substantive requirements regarding the scope of initial exercises. LILCO believes that such additional requirements are a concept the Conuaission almost surely would have mentioned in the context of its remarks had it intended a substantive scope change for NTOLs, especially in light of the fact that in practice, no distinction had historically been made between operating sites and NTOLs.9 D. Interveners' Position Interveners do not share LILCO's view. They begin with the proposition that, in paragraph IV.F.1 of Appendix E, the Commission addresses the scope of the initial full partici-pation exercise prior to reactor operations in excess of 5%

of power. Their testimony, Interveners maintain, demon-strated that, prior to the initial full participation exercise, there is no " track record" regarding the capa-bilities or preparedness related to that particular site.

Accordingly, it makes sense that the initial full 9

5taff also makes this argument. Additionally, Staff states that the notion that the initial exercise may lead to major changes is probably an illusion, citing the fact that neither FEMA nor Staff has found this to be the case. Staff urges us not to " read into" paragraph IV.F.1 any additional requirements for initial exercises. See Staff's proposed findings, at 30-31. However, those additional requirements are clearly stated in that paragraph.

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participation exercise be comprehensive. NYS Ex. 1, at 25.

Interveners believe that this is an especially important consideration for Shoreham because implementation of the Plan is largely dependent upon LILCO personnel whose every-day work does not include emergency response. ,

Interveners find support for this interpretation in the regulatory history. They believe that the original require- i ment of Appendix E that all sites, regardless of their previous operating history, "

... test [] as much of the licensee, State, and local emergency plans as is reasonably achievable without mandatory public participation..."

(45 Fed. Reg. 55413, col. 1 (?980); see Tr. 7102 [Petrone])

made sense because, at that time, there was no track record of performance at any site.

Interveners believe that, in dropping the requirement.

that operating plants "... test [] as much of the ... plans as is reasonably achievable without mandatory public partici-pation..." in 1984, the Commission indicated its intent that initial full participation exercises should be more complete than full participation exercises at operating sites.

Indeed, in relaxing the exercise frequency requirement from one to two years, the Commission noted that by 1984, it had.

gained experience at about 150 exercises. See 49 Fed. Reg.

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27735, col. 1 (1984). While the Commission did not ex- )

pressly link this experience to its removal of the "as much as reasonably achievable" language, the rationale for the change in exercise frequency applies to that change as well.

l E. Legal Conclusion I i

Interveners read the regulation correctly. It is clear-that the July 1984 amendment did make substantive changes in the required scope of initial and biennial exercises.10 i Despite the ambiguity in footnote 4, LILCO's arguments simply do not overcome the clear language of paragraph IV.F.1. Consequently, we do not find it necessary to address Interveners' arguments in support of their reading.

Suffice it to say that although the Commission has found it necessary to amend the regulation twice, it did not see fit to change these clear requirements or, for that matter, to specifically address them in a statement of consideration .

accompanying either a proposed or final rule.11 l

10 l See footnote 8, supra, 11 The language quoted by LILCO from the Statement of Consideration supporting the rule permitting initial exercises to be conducted within two years, rather than one year, of commercial operation does not dictate a contrary conclusion. That language, when placed in context, was directed to the problem posed by the necessity to complete (Footnote Continued) l l

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I Our conclusion concerning paragraph IV.F.1 makes it unnecessary for us to consider the parties' positions regarding the interpretation of the definition of full ,

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(Footnote Continued) -

both an exercise and any related litigation within a one -

year time period, and simply points to the fact that there j is no reason why the initial exercise should occur within a shorter time period than subsequent exercises. It does not )

contradict the clear language of paragraph IV.F.1. Indeed, logic would suggest that, having mandated the more complete j initial exercise prior to licensing, the Commission could I well rely on its results for at least as long a period as that which would apply to,the less complete biennial exercises.

LILCO also relies on Planning Standard N of NUREG-0654/ FEMA-REP-1 (LILCO Ex. 12, Att. C), FEMA Guidance j Memorandum (GM) PR-1 (Id., Att. E), and draft GM EX-3 (Id. i Att. G). LILCO's witnesses argued that this guidance is~ ,

directly applicable. They attempted to point (1) to explicit references in FEMA Guidance Memoranda to the NRC's Appendix E regulations (Tr. 6199-200, 6222, 6235-38, 6242, 6804-05 (Daverio, Behr)); (2) to language appearing in Appendix E that is echoed by language in FEMA Guidance Memoranda (Tr. 6822-23 (Behr)), and in NUREG-0654 Planning Standard N (Tr. 6184-85 (Daverio)); and (3 to their understanding of the real world interrelate)onship between FEMA and NRC as a result of their practical experience in ,

the emergency planning area (Tr. 6184-85, 6190-92, 6231-33,  !

6242-44, 6815-23 (Daverio, Behr)). LILCO believes that FEMA l and NRC Staff witnesses agreed that the FEMA guidance 1 documents and NUREG-0654 are applicable. See FEMA Ex. 5, at 89-90; NRC Ex. 1, at 5; Tr. 7492 (Keller), 7620-21 (Keller, i Kowieski).

While this guidance may accurately reflect the practice which Staff and FEMA have followed in conducting exercises, a curson perusal of it reveals that it either ignores the distinction between initial and biennial exercises, or was intended to be limited to biennial exercises. Thus, it is of no value in understanding the additional requirements for initial full participation exercises. Moreover, because it is guidance only and does not rise to the status of a regulation, it does not override the clear language of paragraph IV.F.1.

i participation found in footnote 4 of that paragraph.

Because the initial exercise must be more comprehensive than I

the biennial exercises, a fortiori an exercise which meets that requirement will qualify as a full participation exercise.

F. The Alleged omissions From The Exercise We now consider whether the facts alleged in these contentions demonstrate a fundamental flaw. Interveners point to certain specific omissions and inadequacies in the exercise in support of their views. For purposes of this discussion, these have been grouped under the standard exercise objective to which they relate.

1. Alert and Notification Standard exercise objective 13 governs this topic. It provides: Demonstrate the ability to alert the public within the 10-mile EPZ, and disseminate an initial instruc-tional message, within 15 minutes. This objective was evaluated under the following Emergency Operations Centor (EOC) objectives:

13. Demonstrate the ability to provide advance coordination of public alerting and instructional

- 22 ty messages with the State and county (State and coun participation simulated) ;

14.

Demonstrate the ability to activate the ih prompt notification siren system in coordination i wt the State and county (State and county participat on simulated);

15.

Demonstrate the capability for providing both i l an alert signal and an informational or instruct ona message to the population on an area-wide basis  ;

throughout the 10-mile EPZ within 15 minutes (to be simulated); and j 21.

Demonstrate the ability to prepare and }

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I implement EBS in a timely manner (to be simulated within 15 minutes after command and control decision for implementation of protective action recommendations). I 1, at 10.

FEMA Ex. 5, at 97; FEMA Ex.

15, and 21 were FEMA concluded that objectives EOC 13, at 33-34, 1,

See FEMA Ex.

met, while EOC 14 was partly met.

Interveners assert that the scope of the exercise and

38. limited the participation of response organizations was too

. Specifically, Interveners-with respect to these objectives. f the assert that "[p3rocedures for the actual notification o public and actual issuance of emergency information and

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protective action recommendations to the public ... were excluded from the exercise, in that sirens, the LILCO EBS system, and WALK Radio were not tested, used, demonstrated, or involved in the exercise.12 Thus neither the notifi-cation capabilities of LILCO or WALK Radio personnel, nor the notification capabilities of LILCO's EBS system, were evaluated during the exercise." Contention EX-15A. See also Contentions EX-16C, -16D, and -24.

Additionally, although Interveners asserted in Conten-tions EX-15B and EX-18C(iv) that procedures for notifying and issuing protective action recommendations to the public in the water portion of the EPZ were excluded in that the U.

S. Coast Guard did not participate, in their prefiled testimony (NYS Ex. 1, at 119), they state that they have no basis on which to dispute LILCO's and FEMA's accounts of the Coast Guard's participation. See LILCO Ex. 12, at 33-34; FEMA Ex. 5, at 108-09. Consequently, we have not further considered these contentions. However, in our discussion of 12 Contention EX-16E asserts that Marketing Evaluations, Inc., which has responsibility to verify siren operation and to assess the progress of any evacuation, did not participate in the exercise. Because the sirens were not sounded and no actual evacuation demonstrated, we find that there was no need for Marketing Evaluations to participate.

See Interveners proposed findings, at 43 n.51.

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EOC 16, we address Interveners' position stated in Conten-tion EX-16B that the testing of the implementation of I

protective action recommendations in the water portion of l the EPZ was inadequate.

i There is no dispute concerning the sirens, EBS system, and WALK Radio. All parties acknowledge that the sirens were not sounded, no EBS messages were broadcast, and WALK Radio did not participate. FEMA concluded that the sirens should be sounded in the future (FEMA Ex. 1, at 34; FEMA Ex. 5, at 106, 123), and the FEMA witnesses voiced their opinion that this test should occur prior to operation at more than 5% of power, although they were uncertain whether such a regulatory requirement exists. Tr. 8383-87. Such a test would necessarily involve the broadcast of a test EBS message to inform the public of the reason the sirens were sounded. Tr. 7553-54. More importantly, FEMA agreed with Interveners that the test of the alert and notification system was not as complete as FEMA normally expects (Tr. 7563-65), and that there was no evaluation of WALK Radio's capability to carry out its responsibilities under the plan (Tr. 7579).

I LILCO notes that certain legal developments prevented l

l the testing of the alert and notification system.

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Specifically, a February 1985 decision of the New York Supreme Court in cuomo v. LILCO (Consol. Index 84-4615) raised the possibility that any sounding of sirens or broadcast of EBS messages might be deemed to be an unlawful exercise of police power. In January 1986, the suffolk County legislature adopted Local Law 2-86 which imposed civil and criminal sanctions on anyone participating in an exercise activity which could affect the general public.

Although that law was enjoined as unconstitutional in LILCO

v. County of Suffolk, 628 F. Supp. 654, 666 (E.D.N.Y. 1986),

that decision, coming only three days prior to the exercise, was too late to permit a test of the alert and notification ,

i system to be inserted into the exercise. LILCO maintains that the system was tested to the fullest extent possible.

See LILCO Ex. 12, at 16-17.

Interveners do not agree. They believe that the failure to activate the sirens and EBS system and to inter-l act with WALK Radio is significant in determining whether the exercise met the standards for full participation exercises. They testified that it was standard practice in FEMA Region 2 to sound the sirens and air a test EBS mes-sage. Tr. 7149. They believe that the sounding of the sirens and accompanying radio broadcasts are a " major observable portion" of the plan as that term is used in

10 CFR Part 50, Appendix. E, paragraph IV.F. They also believe that the failure to activate also necessarily precluded observation and evaluation of critical mechanical and human interactions. Tr. 7183. Specifically, they believe that the following elements were omitted:

1. sounding of the sirens;

2. broadcast of an EBS message;

3. activation of tone alert radios;

4. contact with WALK Radio; and

5. authentication of the EBS message by WALK.

Tr. 7182-84.

LILCO maintains that what was done at the exercise was sufficient to constitute full participation and that the untested mechanical aspects of the system will be demon-strated during a so-called FEMA-REP-10 test (LILCO Ex. 12, at 32). Given the County's efforts to preclude any testing of the alert and notification system at the exercise, it ill behooves the Interveners to complain that steps one through three above were not carried out at the c.arcise. Moreover, those efforts clearly dictate the conclusion that testing of these portions of the plan was not reasonably achievable, j i

Consequently, we do not consider their omission in  !

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determining whether the requirements of paragraph IV.F.1

were met.13 The last two items, which concern the lack of communi-cation with WALK Radio, present a different question. The record does not reflect whether the County prevented their inclusion in the exercise, and LILCO concedes that their inclusion would not have involved mandatory public partici-pation. See Tr. 6828-33 (Daverio). However, LILCO main-tains that the interaction with the EBS station is much more mechanical than Interveners portray and that FEMA was satisfied with LERO's performance in this regard. See LILCO's reply findings, vol. II, at 3 (comment on Inter-venor's proposed finding 59). This may well be so. None-theless, FEMA found that LERO exhibited weaknesses in communications skills.14 Clearly, accurate communication of 13 This conclusion also applies to Interveners' Contention EX-15C, which asserts that there was no evaluation of the adequacy of LERO's public information materials. The local law enacted by the Suffolk County legislature similarly prevented any distribution of those materials and thus prevented any evaluation of their adequacy as a part of the exercise. We also note that there is no. standard objective which covers the public information-materials. Tr. 8424-25.

14 FEMA assigned a deficiency to the communications within the EOC and an ARCA because of the confusing state of (Footnote Continued)

i the text of EBS messages to the radio station which is to broadcast them is of paramount importance. It is not a mechanical activity which appropriately can be covered in a FEMA-REP-10 test. Consequently, we conclude that the testing of communications with WALK Radio was reasonably )

achievable and should have been included in the exercise.

We conclude that the alert and notification system was j partially tested at the exercise.

2. Evacuation of the EPZ Interveners assert that the exercise failed to test various functions related to this topic, which is governed by standard objective 15: Demonstrate the organizational ability and resources necessary to manage an orderly evacua-tion of all or part of the plume EPZ. This objective was evaluated under the specific objectives EOC 16 and Field 9.

Interveners assert in Contentions EX-15H and -16B that implementation of protective action recommendations in the water portion of the EPZ and by transients'on beaches and in parks was not adequately tested. In Contentions EX-16K and (Footnote Continued)

EBS messages furnished the press at the ENC.. In our forthcoming decision on the contentions related to LERO's performance, we will address these matters in detail.

-18C(i), Interveners assert that the participation of certain commercial bus companies., which are relied upon to furnish buses in the event of an evacuation, was too limited. In Contentions EX-18C(iii) and EX"18C(vi), Inter-venors also assert that the participation of the Nassau County Red Cross, which is relied upon in connection with congregate care centers, and Nassau County itself, which is relied upon to perform police functions in connection with the coliseum, were both too limited. Finally, in Conten-tions EX-15D and EX-16H, Interveners note that procedures related to evacuation of EPZ hospitals were not demonstrated and hospital officials did not participate in the exercise.

Under EOC 16, FEMA evaluated LERO's organizational ability to manage an orderly evacuation. FEMA observed LERO's ability to coordinate notification of the public and access control on the waters of the EPZ With the Coast Guard. FEMA Ex. 5, at 110; FEMA Ex. 1, at 34. FEMA also l Verified that the Coast Guard simulated establishing a Maritime Safety Zone and simulated emergency radio broad- i casts to all shipping on the distress frequencies, as well as actually dispatching a boat for access control, although there was no objective to evaluate Coast Guard performance. j See FEMA Ex. 5, at 109; Tr. 7661. FEMA did not observe any other elements relevant to Contentions EX-15H and EX-16B l

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FEMA believes that, under either this objective or Field 9. I in light of the fact that the exercise occurred in February, further evaluation of the challenged portions of these objectives should await a summer exercise. See FEMA Ex. 5, at 111.

LILCO believes that there was an adequate demonstration j

of the implementation of protective action recommendations.

See LILCO Ex. 12, at 34. Interveners take the position that FEMA should have evaluated the Coast Guard's ability to formulate a message and get that message to boaters within 45 minutes. They point out that the water portion of the EPZ constitutes approximately 50% of the EPZ which, during certain months of the year, might contain large numbers of boaters. NYS Ex. 1, at 121.

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The record indicates that the organizational ability l and resources necessary to manage an orderly evacuation in the water portion of the EPZ were adequately tested. FEMA either observed or verified the actions that were taken in l this regard. l Contentions EX-16K and EX-18C(i) basically concern the participation of bus companies which have agreed to provide <

buses in the event of an evacuation. In its direct

testimony, FEMA notes that it is standard practice in Region II to evaluate a sample of bus companies at each exercise, taking care not to evaluate the same sample at each exercise. In order to evaluate LERO's integrated capability to provide buses, FEMA independently selected eight out of a total of 43 transit dependent general population bus routes to be run and " randomly" picked the drivers to run them. FEMA Ex. 5, at 130-31. Each FEMA evaluator who picked a driver accompanied that driver to the bus yard and along the route. FEMA's records do not indicate whether these evaluators may have spoken to bus company officials concerning the availability of buses.

However, FEMA did not, as it had indicated it would on page 73 of its testimony filed in this proceeding on April 17, 1984, verify with the bus companies the actual number of buses that were available. Tr. 7680-86. l l

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Interveners take the position that, first, FEMA's  :

actions provide an inadequate basis on which to conclude that an adequate number of buses would be available and, second, those actions did not comport with its actions in other exercises where it generally requires that all bus companies affected by the scenario be contacted and verifies with those companies the number of buses which are avail-able. NYS Ex. 1, at 138-39. LILCO believes that there is i

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no reason to doubt that the bus companies would provide the number of buses to which they have agreed, noting that the provision of buses is their only function, and'thus there is no reason why the bus companies should have had a greater role in the exercise. LILCO Ex. 12, at 41-42.

We agree with LILCO. Clearly, what is involved is counting buses. Interveners advance no concrete reason why ,

this should be accomplished in connection with an exercise I other than the fact that FEMA testified in 1984 that it would do so. There does not appear to be any reason to doubt the bus companies' ability to provide buses and thus no reason to insist on a greater role in the exercise for them.15 l

Contentions EX-18C(iii) and EX-18C(vi) assert that the participation by the Nassau County Red Cross and Nassau County was too limited. Interveners offered no direct 15 0ur conclusion is based on the fact that the bus companies' role is limited to providing buses. Were they also responsible for briefing, equ pping, and dispatching drivers, our conclusion would be d fferent.

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testimony or proposed findings on these contentions, and we see no need to further consider them.16 Contentions EX-15D and EX-16H assert that procedures i related to the evacuation of EPZ hospitals should have been  ;

demonstrated and hospital officials should have participated in the exercise. Interveners filed extensive direct testi- l at 92, et seg. FEMA NYS Ex. 1, mony on these contentions.

points out that sheltering is the primary protective action Therefore, no objective to be undertaken by EPZ hospitals.

was included concerning the hospitals and there was no need FEMA Ex. 5, at 114-15.

This is in for them to participate.

accord with the Licensing Board's holding that it was not See necessary to plan for the evacuation of hospitals.

This holding was, subsequent to LBP-85-12, 21 NRC 644, 844.

the exercise, remanded to the Licensing Board with direc-tions to require ". 4the applicant to fulfill the same planning obligations with regard to possible hospital evacuation as the Board imposed in connection with the i

16 FEMA notes that one Red Cross representative participated in the EOC throughout the exercise and that several participated at the Nassau County Coliseum and FEMA Ex. 5, at 139. 'LILCO notes -

congregate care centers.that both the Red Cross and Nassau County participJ 1

LILCO Ex. 12, at 42-43.

• nursing / adult homes." The Board was directed by the Appeal Board to hold the remand in abeyance pending instructions from the Commission. ALAB-832, 23 NRC 135, 154-57, 163. In CLI-87-12, 26 NRC (1987), the Commission affirmed the remand, but indicated that the Licensing Board might again conclude that hospital evacuation need not be considered.

In light of this, we conclude that FEMA. correctly excluded any objectives concerning hospitals from the exercise scenario. Moreover, the fact that the Appeal Board directed that the remand be held in abeyance, coupled with the Commission's decision to take review of the Appeal Board's decision, dictates that FEMA's conclusion should remain k

undisturbed.

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l We conclude that the exercise of the elements of LERO's organizational ability and resources necessary to manage an orderly evacuation called into question by these contentions complied with paragraph IV.F.1.

3. Protective Actions for Schools Interveners raise a number of issues under this heading  ;

which cut across several exercise objectives. First, standard exerciso objective 19 provides: Demonstrate the organizational ability and resources necessary to effect an  ;

orderly evacuation of the schools within the plume EPZ.

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This objective was evaluated under specific objectives EOC 20 and Field 16. Second, FEMA added specific objective EOC 18 which provides: Demonstrate the organizational ability necessary to effect an early dismissal of schools within the 10-mile EPZ, and a corresponding specific objec-tive, Field 15, which provides: Demonstrate a sample of resources necessary to effect an early dismissal of schools within the 10-mile EPZ. The specific objectives added by FEMA are not covered by a standard objective.

In their contentions, Interveners assert that a demon-stration of sheltering of school children should have been included as an objective (EX-15E), that there was no obser-vation of the organizational ability necessary to effect an early dismissal of schools (EX-15F), that evacuation proce-dures for schools were omitted from the exercise (EX-15G),

and that the participation of school officials and per-sonnel, as well as school bus drivers, was too limited I l

(EX-16F, EX-16G, EX-26 and EX-18C[v]).

FEMA testified that, pursuant to the Board's conclusion in LBP-85-12, 21 NRC 644, 858, that "...the written emer-gency plans required by New York State are adequate to provide reasonable assurance that adequate protective measures.[at schools) can and will be implemented in the i

event of an emergency...," it did not adopt an objective that would have required a demonstration of the ability to shelter school children. At the time he was preparing for the exercise, FEMA's Region II RAC Chairman, Roger Kowieski, was not aware of an evolving FEMA policy which would have dictated that such an objective be included. Further, the FEMA witnesses were of the opinion that school emergency plans are required by the State Board of Education as a part of the school certification process. See FEMA Ex. 5, at 116; Tr. 8394-8421, 8596-99.

In its direct testimony, FEMA noted, in response to the allegation that it did not observe any demonstration of the organizational ability to effect an early dismissal of schools, that such an observation could not be made because simulated telephonic advice not to open schools was given to school officials by LERO officials from the latter's homes prior to reporting to the EOC. FEMA Ex. 5, at 117. On cross-examination, the FEMA witnesses equated early dis-missal and not opening for the day. Tr. 7595, 7601. They testified that the organizational ability necessary to effect either was demonstrated by the act of telephoning the schools (Tr. 7599-7601), and that while the telephone calls were not observed by a FEMA evaluator, they were verified by interviewing the individual who made the calls (Tr. 7595).

Thus it appears that, although the telephone calls were not observed, FEMA nonetheless regards objective EOC 18 as having been met.

Only the Shoreham-Wading River School District partici-pated in the exercise. Tr. 6848, 6932. Therefore, FEMA based its conclusions with regard to objectives Field 15 and 16 on interviews of those school officials and schocl bus personnel and on actual observation of the completion of one school bus route using LERO resources. FEMA Ex. 5, at 119.

FEMA concluded that the simulated dispatch of 17 school buses to the Shoreham-Wading River High School 17 and the release of students for transportation to their homes demonstrated these objectives (FEMA Ex. 1, at 43), and that objective Field 16 was only partly met by the Patchogue Staging Area with respect to the bus route run by a LERO bus because of a 40-minute delay in dispatching the bus (FEMA Ex. 1, at 66). The FEMA witnesses believe that a greater degree of participation on the part of the schools is 1 necessary "...in order to reach any kind of a conclusion 17 Under the plan, the schools utilize their own resources to implement protective actions with LERO providing backup resources if necessary. LILCO Ex. 12, at 37; Tr. 6940-41.

[concerning] the capability of school districts more ), and gener-ally to respond to a Shoreham emergency" (Tr. 7603 in the future, all assigned an ARCA recommending that, i schools must be included in Federally evaluated exerc ses at 41).

FEMA had requested such 1,

and drills (FEMA Ex. i d participation prior to the exercise, but LILCO determ ne not to invite other school districts to participate.

Tr. 7605-09.

In its direct testinony, LILCO offered no explanationto '

of its determination not to invite more school districts On examination by Staff counsel, LILCO's participate.

witness Daverio testified that he was aware of various resolutions and other expressions of opinion concerningd l emergency preparedness attributed to school districts an See NYS Ex. 2, Att. 7. The fol-  !

related organizations. l lowing colloquy then took place:

Q Given the apparent position of these resolu- i tions and petitions, would for the participation February 13th by thesch in your view, tive,ise?

exerc A

Given the resolutions as I think I said before, I didn't have direct knowledge that they wouldn't participate but I would have a hard time believing they would have. ILCO Q

... was the same view expressed to you by L management?

A They expressed the view that they did not want to write the letter. And, I assume that was the reason but I don't know.

Tr. 6973-75; see also Tr. 6848. This is the only explan-ation in the record of LILCO's decision not to seek partici-pation by the school districts, although even Interveners acknowledge that it is unlikely that the schools would have participated if invited. Interveners' proposed findings, at 135. LILCO has committed to seek broader participation by school districts in the future. Tr. 6953.

LILCO maintains that sheltering, early dismissal, and evacuation are activities that are frequently carried out by schools under their existing emergency plans and conse-quently they need not be exercised. Further, LILCO asserts that the means to effect early dismissal were demonstrated, as well as LERO's ability to assist in evacuation. See LILCO Ex. 12, at 36-ia. On cross-examination, LILCO's witnesses conceded that more schools should have been involved in the exercise. They adhered to their position, l

however, that one could infer from the participation that in fact occurred and from the existence of emergency plans in the schools that the affected schools could implement protective actions in the event of a Shoreham emergency.

Tr.6951-53.

Interveners have no substantial disagreement with the facts set forth above. They argue tnat these facts show that FEMA did not conform to its normal practices in the Shoreham exercise insofar as its evaluation of school preparedness is concerned and that the exercise did not conform to regulatory requirements. NYS Ex. 1, at 68-84.

All parties recognize that there must be more extensive t school participation. We agree that school participation is of great importance. The issue which we must decide is whether the participation that did in fact take place was all that was reasonably achievable. There is nothing in the record that indicates whether the schools would have par-ticipated if asked. Indeed, we have only Mr. Daverio's speculation, elicited by Staff counsel, on the reason LILCO management decided not to issue the invitation when asked to do so by FEMA, and the probable response of the schools had an invitation been issued. LILCO bears the burden of proof.

See 10 CFR 2.732. It has not established that the school participation which did take place was all that was

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reasonably achievable. Consequently, we must conclude that greater participation was reasonably achievable.18 l

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Certain subsidiary issues concerning the scope of l school participation are raised by this record. We decline

.t to decide them. It appears that at the time of the exer-  !

cise, guidance on these issues was developing. GM EV-2, the purpose of which is to provide guidance to Federal, State, and local government officials with respect to emergency l

i preparedness for schools, came into existence in draft form shortly before the February 13 exercise and was issued on November 13, 1986. As a result, the present policy with respect to participation by schools in exercises differs from that which existed when the exercise was planned and executed. See NYS Ex. 2, Att. 6; Tr. 8394-96, 8406-08.

Given our conclusion that greater school participation was reasonably achievable, it makes little sense to consider whether the policy with respect to schools in effect at the {

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l 18 Were the burden of proof on Interveners, we would be forced to conclude that they had not demonstrated that greater school participation was reasonably achievable, and consequently decide this issue in LILCO's favor. This is a rare instance when, evidence establishing one condition or the other lacking, the issue must be decided against the j party bearing the burden of proof. l l

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i time of the exercise was both appropriate under the regu-lation and satisfied by what transpired.

4. Ingestion Pathway This topic is covered by the following standard exer-cise objectives:

9. Demonstrate appropriate equipment and proce-dures for collection, transport, and analysis of samples of soil, vegetation, snow, water, and milk;

11. Demonstrate the ahility to project dosage to the public via ingestion pathway exposure, based on field data, and to determine appropriate protective measures, based on PAGs and other relevant factors; and

12. Demonstrate the ability to implement protec-tive actions for ingestion pathway hazards. Conten-tions EX-15I, EX-16A, EX-37A, EX-37B, EX-37C, and EX-37D raise matters concerning the ingestion exposure pathway.

I None of these objectives were evaluated during the  !

exercise. FEMA takes the position that not "...all major planning and preparedness elements incorporated in the 35 exercise objectives..." need to be included .in every full scale exercise. It notes that the NRC requested an exercise

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which emphasized a demonstration of response capabilities within the plume exposure EPZ and did not object when ingestion pathway objectives were not included.

Tr. 7529-30. FEMA also notes that there has not been a full scale exercise of the ingestion exposure pathway at any of the three operating nuclear sites in New York. Tr. 7526-28.

Consequently, FEMA agreed with LILCO that ingestion pathway objectives would not be included in the exercise.19 FEMA Ex. 5. at 125-26.

LILCO's position is that ingestion exposure pathway objectives need not be tested in order to qualify as a full participation exercise. LILCO Ex. 12, at 39. Interveners' position is contrary, although they concede that ingestion pathway objectives are not currently included in exercises at other New York nuclear sites. NYS Ex. 1, at 148-49.

State officials testified that they have refused to include such objectives until guidance concerning them is forth-coming from FEMA. Tr. 7208-10, 7232-33. While FEMA appar-ently has accepted this position on the part of New York State, it acknowledges that ingestion pathway objectives

'LILCO takes the position that it wanted ingestion pathway objectives tested at the exercise. Tr. 6837.

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could have been tested and that the major factor dictating that they be excluded was the guidance emanating from Staff that "... FEMA emphasize evaluation of the functional areas of emergency preparedness related to the demonstration of response capabilities within the plume exposure (10-mile)

Emergency Planning Zone." Tr. 7239; June 20, 1985 Memorandum for Richard W. Krimm of FEMA from Edward L.

Jordan of NRC.

Paragraph IV.F.1 clearly requires, in addition to testing as much of a plan as is reasonably achievable, that each State within the ingestion exposure pathway EPZ par-ticipate in the initial full participation exercise. Thus both Connecticut and LERO, substituting for New York, should have been included and the exercise scenario should have included ingestion pathway objectives.20 It.is unfortunate that these objectives were excluded on the suggestion of the Staff. Nonetheless, that circumstance cannot alter the fact that this exercise did not meet the requirements of para-graph IV.F.1 in this respect.

20 We cannot agree with LILCO that the requirement for participation by ingestion exposure pathway States merely requires participation to the extent dictated by the scenario.. Tr. 6850-52. Such an interpretation would effectively read this requirement out of the regulations.

5. Recovery and Reentry Like the ingestion exposure pathway, this topic was not included in the exercise. It is covered by the following standard objectives:

34. Demonstrate the ability to estimate total population exposure; and

35. Demonstrate the ability to determine and implement appropriate measures for controlled recovery and reentry.

Contention EX-15M asserts that recovery and reentry objectives should have been included in the exercise. FEMA excluded these objectives for largely the same reasons that it excluded ingestion pathway objectives, plus the fact that the U. S.

Environmental Protection Agency had not promul-gated final guidance governing these activities. FEMA regards its decision in this regard as consistent with its practice in other full-scale Region II exercises. FEMA Ex.

5, at 128.

On cross-examination, the FEMA witnesses indi-  !

cated that, while recovery and reentry is a major observable portion of the plan, the lack of final guidance from EPA concerning doses which would be considered acceptable on l i

reentry meant that there was no standard against which to l I

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l measure exercise performance. This situation lead Region II to agree with New York State officials that it was appro- l priate to exclude recovery and reentry objectives from New i

York exercises. These objectives had been included until August 1983. Tr. 7673-79.

LILCO concedes that recovery and reentry activities  ;

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were excluded from the exercise despite LILCO's willingness l I

to include them, but does not believe that that fact demon- j strates a fundamental flaw. LILCO Ex. 12, at 40-41; Tr. 6921. We conclude that the lack of final EPA guidance on acceptable reentry doses dictates the conclusion that testing these functions was not reasonably achievable.

Therefore, we do not consider the absence of this demon-stration in determining whether this exercise met the requirements of paragraph IV.F.1.

6. Special Facilities Standard objective 18 provides: Demonstrate the organizational ability and resources necessary to effect an orderly evacuation of mobility-impaired individuals within ]

the plume EPZ. This. objective was evaluated under specific objectives Field 13 and Field 14. Interveners assert in Contention EX-16I that officials of nine nursing and adult homes located in the EPZ did not participate, in Contention

i EX-16J that officials from facilities outside the EPZ which are relied on to receive the special facility evacuees did not participate, in Contention EX-15K that procedures i

related to the radiological monitoring and decontamination '

of these evacuees were excluded, and in Contentions EX-16L and EX-18C(ii) that certain ambulance companies did not participate.

During the Exercise, LILCO assessed the seriousness of the accident and decided to evacuate residents of special facilities. With perhaps two or three exceptions (see Tr. 6833-34, 2904 (Daverio]) LILCO's communications with special facilities were simulated. Tr. 7592, 7628 (Baldwin). FEMA evaluated the performance of one ambulance and one ambulette which were sent to two special facilities within the EPZ and then to locations outside the EPZ. There ,

was no test of the availability of facilities outside the i

EPZ to handle special facility evacuees. NYS Ex. 1, at 87, 105, 106-107; Tr. 6931 (Daverio). Most special facility reception centers have yet to be arranged. Tr. 2913 (Daverio) ; FEMA Ex. 3, Att. 1, at 12; Harris and Mayer, ff.

Tr. 2992, at 13. There was no specific test of LILCO's capability to register, monitor or decontaminate special facility evacuees. NYS Ex. 1, at 104-105. LILCO takes the position that the techniques are the same as those i

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'l demonstrated at the Nassau Coliseum for the generai population.21 LILCO Ex. 12, at 40; FEMA Ex. 5, at 127.

FEMA did not evaluate whether LILCO had enough ambulances and ambulettes or drivers available to handle an evacuation, although it acknowledged that this was something which it had committed to evaluate in a Shoreham exercise. NYS Ex. 1, at 109-10; Tr. 7689-92 (Kowieski, Keller). FEMA interviewed no ambulance company officials and thus did not evaluate whether ambulance company officials were knowledgeable about what was expected under the Plan. NYS Ex. 1, at 108-10, 112; Tr. 7192-94 (Petrone). FEMA did not evaluate, even on a spot-check basis, the capabilities of the personnel at special facilities inside or outside the EPZ to carry out the actions contemplated under the LILCO Plan. NYS Ex. 1, at 87, 100, 102, 103, 105.

The FEMA witnesses indicated that it is not standard practice to evaluate the capabilities of special facility personnel. FEMA Ex. 5, at 115. The evidence indicates generally that, with respect to special facility residents, the Shoreham test was approximately the same as at most 21 We will consider this issue in detail under Contention EX-47.

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l other exercises, with the exception that actual phone calls l

l are often made to special facilities at other exercises.

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NYS Ex. 1, at 100 n.46; Tr. 8663 (Kowieski).

In 1984, FEMA testified that it would evaluate, through j a sampling approach during an exercise, the level of coordi-nation between LILCO and adult and nursing homes.

Tr. 7662-63 (Keller). In this hearing, the FEMA witnesses stated that this was necessary because such coordination I l

I constitutes a major observable portion of the plan. They took the position, however, that this evaluation did not j l

have to occur during the first Shoreham exercise. 1 Tr. 7663-64 (Keller).

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I We agree that the level of coordination between LERO j l

and the special facilities should be evaluated and add only l l

that such evaluation must include an evaluation of LERO's ability to communicate with special facilities. Further, we agree that an evaluation of the preparedness of the ambu- I lance and ambulette companies should have been included. No showing has been made that a test of these aspects of the plan was not reasonably achievable. Consequently we con-clude that such an evaluation should have been a part of this exercise in order to satisfy the requirements of paragraph IV.F.1.

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We do not agree with Interveners that we should disap-prove FEMA's practice of declining to review the emergency plans of special facilities themselves. See Interveners proposed findings at 137. No reason is apparent on this record why FEMA's practice should be disapproved. Simi-larly, we see no reason to reject LILCO's position that the monitoring and decontamination of special facility popula-tions requires no showing in addition to that made for the general population.

G. Conclusion on Contentions EX-15 and EX-16 l

l In sum, we find that testing of the following portions of the plan was reasonably achievable and should have been accomplished:

a. transmission of an EBS message to WALK Radio and authentication of that message by WALK Radio; .

b. participation by more school districts in the exercise scenario;

c. implementation of protective actions in the j

ingestion exposure pathway in both Connecticut and New York; and I

d. coordination and communication between LERO and special facilities, including a review of the preparedness of ambulance companies relied on by LERO.

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In reaching these conclusions, we do not question the oft repeated testimony of the FEMA witnesses that the February 13, 1986 Exercise was as comprehensive as any conducted in FEMA Region II up to that time. See, e.g.,

FEMA Ex. 5, at 92, 105; Tr. 7633, 7645-46, 8476, 8491.

However, the fact remains that the exercise scenario failed to properly take the Commission's regulatory requirements for initial full participation exercises into account. As a result, the exercise failed to test some parts of the plan which reasonably could have been tested, and therefore failed to comply with 10 CFR Part 50, Appendix E, paragraph IV.F.1.

II. CONTENTION EX-21 A. The Allegations Contention EX-21 alleges that FEMA had insufficient data to support the conclusion that certain exercise objec-tives were met. The sample sizes used by FEMA in making its review, it alleges, were much too small to support FEMA's conclusions concerning these objectives.

While Contention EX-21 was admitted as an independent contention, it is closely related to and was heard with Contentions EX-15 and -16. In their proposed findings (at

146-47) Interveners pci.; out that the conceptual difference between the contentions is that Contention EX-21 focuses on whether FEMA had a valid basis to find that particular Shoreham objectives had been satisfied, while Contentions EX-15 and EX-16 focus on Appendix E. For decisional pur-poses, they believe Contention EX-21 is best addressed as a I further basis for the Interveners' position that the Shoreham Exercise was too limited.

In Interveners' view, most of the factual matters raised in Contention EX-21 and which are the subject of dispute, namely the sufficiency of school (EX-21C), bus (EX-21B), and special facility (EX-21D) testing, are covered in Contentions EX-15 and EX-16. In our discussion of those contentions, we concluded that the testing of schools and special facilities had been insufficient to comply with paragraph IV.F.1 of Appendix E, and we do not address these matters again. We did not reach the same conclusion with-respect to busses, because Interveners' position boiled down to the proposition that available busses should have been j counted during the exercise. The question of the adequacy of the sample of bus drivers tested by FEMA was raised only by Contention EX-21; that question is discussed below.

Two subparts of Contention EX-21 -- dealing with Traffic Guides and Congregate Care Centers -- were not addressed in great detail or at all by Interveners in the context of that contention. Interveners state that there was no substantial evidence to support the view that the Exercise was too limited'with respect to the traffic guides (EX-21E). Interveners proposed findings, at 146 n. 145; Suffolk Ex. 99, at 62-63; Tr. 7393-94 (Simon) (County's witness does not strenuously criticize looking at 32 of 165 traffic guides). On the question of Congregate Care Cen-ters, Interveners offered no testimony in support of the allegations in Contentions EX-15L, -32, -22K, and -16N, which were not separately admitted, but considered as additional bases for Contention EX-21. We do not address either of these matters.

The alleged failure of FEMA to include a realistic i

number of road impediments (EX-21F) will be dealt with in i 1

connection with Contention EX-41.

The only other Contention EX-21 factual area concerns the testing of LILCO's Route Alert Drivers (EX-21A), who are to provide notification to the public in the event of siren failures. The route alerting situation is discussed below. )

B. Suffolk County's Testimony A.

Suffolk's witness on Contention EX-21 was Dr. Gary k Simon, an Associate Professor of Statistics attion. New Yor University's Graduate School of Business Administra Suffolk Ex, 99 Dr. Simon testified that the evaluation to of the exercise was done without reasonable thought as Id. at 5.

sample sizes or random selection mechanisms.

i The FEMA evaluation was a decision-making invest -s j i gation, designed to determine whether exercise ob ect ve were met, based on the performance of particular emergency functions. Dr. Simon believes that, in order for FEMA to d

determine the appropriate size of the samples it reviewe ,

it should have specified in advance.its target value (what proportion of adequate player performances constitutes l its bad value (what propor- l meeting the Exercise objective), bigu-tion of inadequate performance would constitute unami nd

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ously or definitely not meeting the exercise object ve ,a k that the probability with which it wished to be able to ma e A large sample selected without regard to distinction. i blatant these criteria will nonetheless succeed in reveal ng '

Small samples, on the other aspects of the population. that ;

i hand, will produce results with such large error bounds l Id. at 16-17; Tr. 7404-5.

they are virtually meaningless.

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LILCO and FEMA agreed that the use of small samples produces f results that are subject to wide statistical variation.

I Tr. 7300 (Daverio), 8480 (Kowieski).

Dr. Simon testified that from what he had been able to review, FEMA essentially made no reasoned sample-size decisions based on what it was trying to determine or how accurately it was trying to determine it. A casual, hap-hazard selection process, as opposed to randomization, was used by FEMA in its evaluation.22 He believes that FEMA's failure to use the principles of random sampling, at least in some modified form, greatly diminishes the validity of j FEMA's conclusions. Suffolk Ex. 99, at 18; Tr. 7367-68.

i FEMA acknowledged that its method of selection was hap-hazard. Tr. 8582-83 (Baldwin, Keller, Kowieski).

Subcontention EX-21A alleges that only three Route Alert Drivers, one from each Staging Area, were dispatched l 22 Tr. 7292 (Daverio). As witness Daverio pointed out, In a non-statistical synonym for " random" is " haphazard".

statistics, however, " random selection" refers to a process in which even item or individual in the population has the same probability of being selected; a selection process which depends on chance but in which procedures are not taken to assure equal probability of selection is referred to as " haphazard", our use of these terms will be consistent with the statistical definitions.

i by LERO during the exercise in response to simulated siren failures, and that this small sample of Route Alert Drivers observed invalidates FEMA's conclusion with respect to objectives Field 5, SA 9, and EOC 15. Suffolk Ex. 99, at 27-28.

Dr. Simon testified that a sample size of three out of a total of 60 was not enough to reach a valid conclusion about the entire population of route alert drivers. Id.

at 28. Nor was a sample of one driver out of a total of 20 in each staging area sufficient to justify conclusions about the entire population of drivers in each staging area.

Because of the small sample sizes, Dr. Simon believes that there was no basis for FEMA to conclude that exercise i objective Field 5 was " partly met" at each Staging Area.23 23 Suffolk Ex. 99, at 29. Dr. Simon presented some hypothetical statistics based on a sample size of three taken from a population of 60, to show what the 95%

confidence limits would be in zero to three successes in the three samples. For only one success out of three, the result would be: it is 95% certain that anywhere from one to 51 of 60 Route Alert Drivers would perform properly. For three out of three, the result would be: it is 95% certain that anywhere from 23 to 60 out of 60 route alert drivers would perform properly. Dr. Simon characterized these confidence intervals as " terribly wide." Id. at 33-34. If a sample size of ten were used with a targeE value of 75% l proper performance and a range of " bad" values from 0% to )

35%, one could make distinctions with a' confidence of 70%.  !

(Footnote Continued) I i

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Subcontention EX-21B alleges that FEMA observed only two bus drivers from each of the Riverhead and Port Jefferson Staging Areas, whereas 100 bus drivers are re-quired to make 139 trips out of the Riverhead Staging Area, and 108 bus drivers are required to make 169 trips out of the Port Jefferson Staging Area. Suffolk alleges that FEMA's conclusions that objective Field 9 was met at the Riverhead and Port Jefferson Staging Areas are without basis and invalid. At the Patchogue Staging Area, FEMA observed four bus drivers, and on the basis of their inadequate performance concluded that objective Field 9 was not met.

Based on its observations of these eight drivers making a total of eight runs, of which three were judged unsatis-factory, FEMA concluded that objective EOC 16 was met.

Suffolk alleges that the small sample size invalidates this conclusion. Suffolk Ex. 99, at 36-37.

Dr. Simon testified that observing eight out of a total of 333 bus drivers is inadequate to determine whether there are significant departures from the desired performance i targets or to determine the actual probability of good (Footnote Continued)

Finer distinctions would require still larger. sample sizes.

Id. at 35.

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1 performance from the population as a whole. Moreover, since 1 at least three of the eight drivers in the sample performed inadequately, a positive conclusion concerning the perfor-mance capabilities of the entire population would be par-ticularly improper.24

c. Discussion and conclusion l

Dr. Simon's testimony was essentially unchallenged, and appears to accurately reflect, from a statistical 24 Suffolk Ex. 99, at 40; Tr. 7377. Again Dr. Simon presented a table of hypothetical statistics, to show what results could be expected from a sample of eight out of a population of 333. Id. at 41. With five out of eight bus drivers performing adequately, as FEMA found during the exercise, the confidence interval ranges from 29% to 89%;

that is, it is 95% certain that between 29% and 89% of the LERO bus drivers could adequately perform their jobs in a Shoreham accident. In Dr. Simon's opinion this result does not support the conclusion that there is reasonable  ;

assurance that the bussing plan can and will be implemented effectively. In addition, Dr. Simon criticizes FEMA's haphazard selection of the bus drivers to be observed, as opposed to random selection. He believes a haphazard selection process could be a good substitute for a scientifically random process, but states that we have no way of knowing what kind of biases were introduced into the process. For example, he suggests the selections might have been based upon the ease of FEMA evaluators to observe particular bus routes, which may have resulted in selection of routes that were particularly easy, or particularly difficult, etc. But even if the selection had been properly randomized, the small sample sizes would still have precluded reasonable findings. Id. at 42-43; Tr. 7377-78, )

7396-97. i I

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a standpoint, the nature of FEMA's observation on these points. LILCO took the position in its proposed findings (at 56-58) that it was not necessary to employ the statistical techniques advocated by Dr. Simon for purposes of evaluating emergency planning exercises. Staff views Dr. Simon's testimony as failing to allege or prove: first, that a fundamental flaw exists in the plan, and, second, that FEMA's method of observation is unreliable. Staff also views the testimony as a challenge to the regulations.25 Staff proposed findings, at 32-39.

In their proposed findings (at 149-51), Interveners note that the definition of " Full Participation" contained 25 Staff, citing Tr. 7609, claims that Dr. Simon stated, in concluding his testimony, that the NRC regulations should require random statistical sampling. We find no statement by Dr. Simon on the cited transcript page. At Tr. 7408-09, however, Staff counsel Barth' asked Dr. Simon, "Is it your-view that the NRC should require statistical samples in these exercises?" Dr. Simon replied, "Well, you know, it is l like asking a Minister if he believes in God, I suppose. It )

is a statistical Article of Faith that samples randomly l selected have many features that make them desirable and appropriate. So, the answer is, yes." With that counsel Barth concluded his questions. If Staff intended to cite this exchange to support the position that Dr. Simon's testimony was a challenge to the regulations, we strongly disagree -- it looks more like the witness was being set up. ,

Dr. Simon's response was an honest, if whimsical, answer to l a devious guestion the subtlety of which we believe he did j not appreciate.

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in footnote 4 to paragraph IV.F.1 requires "... mobilization of ... personnel and other resources in sufficient numbers to verify the capability to respond to the accident )

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scenario." They raise the question whether FEMA's sampling 1 technique permits any valid conclusions with regard to I response capability, given its statistical infirmities.

However, they also note that LILCO and FEMA correctly point out that the regulations do not call for any statistically i valid technique, and that FEMA's expertness and experience enable it to reach a judgement with regard to performance.

They urge that neither position be accepted in full. They also urge us not to decide the issue. Based on this, in its reply findings (at 25-26), LILCO urges that this contention be dismissed.

We are happy to accept Interveners' invitation to refrain from deciding what appears to us to be a complicated issue. While Dr. Simon's conclusions regarding the statis- ]

tical validity of FEMA's observations of route alert and bus drivers appear to be beyond question, the issue of whether statistically valid sampling techniques are required in-volves considerations far beyond those dealt with at this hearing. Consequently we reach no conclusion as to the  !

requirements of footnote 4 to paragraph IV.F.1, and have included.a discussion of Dr. Simon's testimony so as to

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bring this issue to the attention of the Commission.

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1 III. CONCLUSION We have concluded, for the reasons indicated in the foregoing, that the February 13, 1986, exercise of the offsite emergency plan for the Shoreham Nuclear Power Station did not comply with the requirements of 10 CFR Appendix E, paragraph IV.F.1.

In accord with 10 CFR 2.760(a), this Partial Initial Decision will constitute the final action of the Nuclear )

Regulatory Commission thirty (30) days after its date unless an appeal is taken. In accordance with 10 CFR 2.762(a), any j i

party may take an appeal by filing a notice of appeal within j ten (10) days after service of this Partial Initial Decision.

l THE ATOMIC SAFETY AND LICENSING BOARD DSCDM b Osr5 Oscar H Paris i ADMIN TIVE JUDGE i 77 , j k k. <<hf Frederick J. S  ? ~-

ADMINISTRA UDGE u i l

, John \H Fr , III TIVE JUDGE (ADMIN}S Bethesda, Maryland December 7, 1987 i

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