ML20239A621

Suffolk County,State of Ny & Town of Southampton Proposed Findings of Fact & Conclusions of Law on Suitability of Reception Ctrs.*

ML20239A621
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	09/14/1987
From:	Case D, Latham S, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:
Shared Package
ML20239A616	List: ML20239A615 ML20239A621
References
OL-3, NUDOCS 8709180012
Download: ML20239A621 (201)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Defore the Atomic Safety and Licensino Board In the Matter of

-)

)

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE SUITABILITY OF RECEPTION CENTERS KIRKPATRICK & LOCKHART TWOMEY, LATHAM S SHEA 1800 M Street, N.W. 33 West Second Street Washington, D.C. 20036 Riverhead, New York 11901 Attorneys for Suffolk County Attorneys for the Town of Southampton Fabian G. Palomino Richard J. Zahnleutor Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York September la, 1987

1 l

l TABLE OF CONTENTS l

Pace I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . 1 1

A. Purpose of Proceeding . . . . . . . . . . . . . . . 1 B. The Parties . . . . . . . . . . . . . . . . . . . . 3 i

C. History . . . . . . . . . . . . . . . . . . . . . . 3 l

D. Standard of Review / FEMA Findings. . . . . . . . . . 11 1 II. PLANNING BASIS . . . . . . . . . . . . . . . . . . . . . . 19 JL. Background. . . . . . . . . . . . . . . . . . . . . 19

1. Issue. . . . . . . . . . . . . . . . . . . . . 19

2. Procedural History . . . . . . . . . . . . . . 20

3. Summary of Parties' Positions on Planning Basis. . . - . . . . . . . . . . . . 23 B. Analysis of Section J.12. . . . . . . . . . . . . . 27

1. Section J.12 and NRC Case Law. . . . . . . . . 27

2. The Krimm Memorandum . . . . . . . . . . . . . 28

3. LILCO's Testimony on Regulatory History of Section J.12. . . . . . . . . . . . 38 1

4. NRC Staff Interpretation . . . . . . . . . . . 40 i l

5. State Analysis and Policy. . . . . . . . . . . 43 l l

C. The Impact of An Accident . . . . . . . . . . . . . 49

1. LILCO Testimony on Accident Release Characteristics and Plume Dispersal. . . . . . 49 l

2. The Hulman Analysis. . . . . . . . . . . . . . 52 ,

J l

l

-i-l

i l

.l Paqq

3. The Monitoring Shadow. . . . . . . . . . . . . 56

a. Definition. . . . . . . . . . . . . . . . 56

b. The County's Survey . . . . . . . . . . . 57

c. LILCO Criticism of the County's Survey. . 59 (i) Usefulness of Surveys. . . . . . . . 59 (ii) Methodology, . . . . . . . . . . . . 63

d. The Cause of the Monitoring Shadow. . . . 65

e. The Effect of Emergency Inforr.ation . . . 70 D. Other Resources / Revised Monitoring Procedures . . . 74 E. Conclusion on Planning Basis. . . . . . . . . . . . 78 III. MONITORING, DECONTAMINATION AND HEALTH EFFECTS . . . . . 80 A. Background. . . . . . . . . . . . . . . . . . . . . 80 B. LILCO's Monitoring Methods. . . . . . . . . . . . . 82

1. Rev. 8 . . . . . . . . . . . . . . . . . . . . 82

2. The Draft Revisions. . . . . . . . . . . . . . 84

a. Absence of FEMA Findings. . . . . . . . . 86

b. Monitoring in Vehicles. . . . . . . . . . 87

c. Scope of Monitoring . . . . . . . . . . . 89

d. Thyroid Contamination . . . . . . . . . . 92

e. Vehicle Monitoring. . . . . . . . . . . . 96

f. The Fallback Procedure. . . . . . . . . . 97 C. Monitoring Rate . . . . < . . . . . . . . . . . . . 98 l

1. Time Required Using Appropriate Procedures . . 98

- ii -

l l l

l L___ _ _ _ --

I' i

Pace

2. LILCO's Estimated Time is Too Low. . . . . . . 100

a. Site Circulation and Traffic Delays . . . 100

b. Behavioral Delays . . . . . . . . . . . . 101 D. Registration, . . . . . . . . . . . . . . . . . . . 106 E. Decontamination . . . . . . . . . . . . . . . . . . 108 F. Adverse Health Effects. . . . . . . . . . . . . . . 112

1. Radiological Health Effects. . . . . . . . . . 112

2. Other Adverse Health Effects . . . . . . . . . 116 G. Conclusion on Monitoring, Decontamination and Health Effects. . . . . . . . . 119 IV. EVACUATION SHADOW. . . . . . . . . . . . . . . . . . . . 120 A.- Introduction. . . . . . . . . . . . . . . . . . . . 120 B. The Effect of the Distance of the Reception Centers From the EPZ. . . . . . . . . . . 121 C. Evacuation From Communities Around The Reception Centers. . . . . . . . . . . . 127 V. TRAFFIC AND RECEPTION CENTER CAPACITY ISSUES . . . . . . 130 A. Issue . . . . . . . . . . . . . . . . . . . . . . . 130 i

B. Background. . . . . . . . . . . . . . . . . . . . . 133 j i

C. Reception Center Capacities . . . . . . . . . . . . 135 D. Route Capacities. . . . . . . . . . . . . . . . . . 142 j i

1. KLD's Analyses . . . . . . . . . . . . . . . . 143 l

a. KLD Traffic Demand Assumptions. . . . . . 144

b. Traffic Control / Illegal Movements . . . . 147 ;

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c. Input Data on Background' Traffic. . . . . 153

d. Signal Timing Data. . . . . . . . . . . . 157

e. Route Deviation . . . . . . . . . . . . . 159

2. The State's Analyses . . . . . . . . . . . . . 163 E. Conclusion on Traffic Issues. . .. . . . . . . . . . 169 VI. ZONING ISSUES. . . . . . . . . . . . . . . . . . . . . . 171 A. Introduction. . . . . . . . . . . . . . . . . . . . 171 B. Background. . . . . . . . . . . . . . . . . . . . . 172

1. Prior Board Consideration. . . . . . . . . . . 172

2. The Town Zoning Laws and Resolutions . . . . . 174

a. The Town of Hempstead (Bellmore). . . . . 175

b. The Town of Oyster Bay (Hicksville) . . . 176 ,

c. The Town of North Hempstead (Roslyn). . . 177

3. The Town of Hempstead's Lawsuit. . . . . . . . 177 C. Discussion. . . . . . . . . . . . . . . . . . . . . 178

1. The Town Boards are the Bodies of Competent Jurisdiction to Determine Violations of Zoning Ordinances and Have Spoken Conclusively on the Issue. . . . . . . . . . . 178

2. The Town Boards' Rulings Are Not Freempted By Federal Laws. . . . . . . . . . . 182

3. CLI-86-13 Is Not Applicable To These Facts . . . . . . . . . . . . . . . . 185 D. Conclusion. . . . . . . . . . . . . . . . . . . . . 186 VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 187 l

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Pace Appendix A: Town of Hempstead Resolution No. 624-1987 (June 9, 1987)

Appendix B: Town of Oyster Bay Resolution No. 685-87 (June 23, 1987)

Appendix C: Town of North Hempstead Resolution No. 318-1987 (June 30, 1987) l 1

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l SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE SUITABILITY OF RECEPTION CENTERS l

l I. INTRODUCTION A. Puronse of Proceedina

1. The NRC's emergency planning regulations require that emergency plans provide a range of protective actions for emergency workers and the general public in the plume exposure pathway EPZ. 10 CFR S 50.47(b)(10). To meet that regulatory standard, a plan should, among other things, satisfy NUREG 0654 Section J.12, which requires that:

Each organization shall describe the means for registering and monitoring of evacuees at relocation centers ir host areas. The personnel and equipment available should be capable of monitor-ing within about a 12-hour period all residents and transients in the plume eyposure CPZ arriving at relocation centers.

2. The Applicant, the Long Island Lighting Company

("LILCO"), has designated three of its own facilities to serve as reception centers in the event of a radiological emergency at the Shoreham Nuclear Power Station ("Shoreham").1/ All 1/ As described further below, LILCO does not have " relocation centers," as such, Rather, the services contemplated by Section (footnote continued)

{

m ___ ___m___

f.

4 I

L . three facilities are LILCO operations centers and are located' approximately 40 miles west of th'e Shoreham plant in the Nassau

' County (New York) villages'of Roslyn, Hicksville and Bellmore.

See LILCO.Ex. 1 (Crocker et al.), Att. H, Att, P, at 4.2-1.

3. In the event of.a. radiological emergency at Shoreham resulting.in a rel' ease of radioactive substances with the potential to'cause off-site contamination, the LILCO' Plan (the

" Plan")'provides-that EPZ residents in the zones downwind of the plant will be advi~ed s to proceed to the reception centers to be monitored for contamination. LILCO Ex. 1 (Crocker et al.), Att. P, OPIP 3.6.1, at 2. Contaminated evacuees will be l'

sent to trailers located at the reception centers (one trailer i each at Bellmore and Roslyn; two at Hicksville) for decontamination. LILCO.Ex. 1 (Crocker et al.), Att. R, OPIP 3.9.2, at 9a-11. All evacuees requiring congregate care (shelter, food, etc.) will also be directed to proceed to the reception center's. LILCO Ex. 1 (Crocker et al.), Att. P, III-

'37. Open arrival, such evacuees will be registered, monitored (and decontaminated if necessary), and directed to separate congregate care facilities. Id.

(footnote continued from previous page)

' J.12 to be provided at relocation centers are divided by the LILCO Plan between two types of facilities - " reception centers" and " congregate care centers."

4. The purpose of this proceeding is to evaluate the ade-quacy of LILCO's three reception centers, the resources LILCO intends to have available for various reception center functions, and the procedures that will be employed at the reception centers, in order to determine whether the NRC's regulatory requirements have been met. The issues to be addressed are set out more fully in Section I.C. below.

B. The Parties

5. LILCO participated in this proceeding as the license applicant, seeking approval of its proposed Plan. Suffolk County, the State of New York and the Town of Southampton (collectively, the " Governments") intervened in opposition to LILCO's Plan.3/ The NRC Staff and the Federal Emergency Management Agency (" FEMA") also participated in the proceeding.

C. History.

6. The history of LILCO's Shoreham reception centers has been one of tortuous evolution and successive aanges in which LILCO has attempted several times to meet the requirement that it provide adequate reception centers. To put this proceeding in context, we outline that history below.

1/ The Town of Southampton did not participate actively in the hearing, but appeared on many pleadings.

\

7. The original LILCO Plan,' issued in mid-1983,-

designated five facilities (three primary and two backup) located in Suffolk County to serve as relocation centers. The LILCO relocation centers at that time had dual' functions:

l (1) to operate as reception centers for registering, monitoring-and decontaminating evactees; and (2) to serve as shelters for the temporary housing, feeding and sanitary needs of processed evacuees. Egg LBP-86-36, 24 NRC 561, 564 (1986); ALAB-832, 23 NRC 135, 157 (1986).

8. Subsequently, LILCO's Plan went through a succession of changes result'ing from LILCO's inability'to enlist and retain suitable relocation center facilities in Suffolk' County.

LBP-86-36, 24 NRC at 564. At various times, LILCO advanced three different sets of facilities. However, it gradually became clear that the facilities identified by LILCO were not available for LILCO's use, until eventually LILCO was left with no relocation center.

9. The first hearings on LILCO's Plan commenced in December, 1983, and continued through AJgust, 1984. One of the issues to be heard concerned the adequacy of LILCO's relocation

. centers. By tile end of the hearing, LILCO had abandoned its plan to use relocation centers, opting instead for a scheme which divided relocation center functions between two different L types of facilities - ' reception centers" for registering, I

I l

monitoiing, and decontaminating evacuees,land " congregate care

-centers" for providing evacuees with food, shelter and other such services. ' Testimony on LILCO's reception centers and congregate. care' centers was heard in August, 1984. While ,

evidence was offered on the concept behind-the reception centers, and over 50 proposed congregate care centers were

' identified, LILCO'was still unable to identify any reception centers. LBP-86-36,-24 NRC at 564. In light of this omission, the Board found-that the lack of an identified relocation center constituted a void in the record. Tr. 14806-07 (Laurenson). The record was closed on August 29, 1984 without

.an identified Shoreham reception center. Egg LBP-86-36, 24 NRC at 564.

1

10. On January 28, 1985, the Board granted LILCO's motion-to reopen the record for purposes of designating a new reception center -- this time the Nassau Veterans Memorial Coliseum (the " Coliseum") located in Nassau County. We declined to permit discovery and a hearing was held June 25 and 26, 1985' on whether the Coliseum was " functionally adequate" to accommodate the number of evacuees that might be expected to

. arrive in the event of a radiological emergency. Egg ALAB-832, 23 NRC at 159-62.

l l

11. Following the-hearing, we issued our Concluding Partial Initial Decision (" Concluding PID"), in which we found, among other things, LILCO's "overall. procedures for processing evacuees at the Coliseum'to be conceptually' adequate." We also

.found, however, that LILCO had not adequately specified the number of people who would. arrive at its reception center, 1

making it impossible to evaluate the adequacy of the Nassau Coliseum. We therefore found the Plan deficient in that respect. LBP-85-31, 22 NRC 410, 417-19 (1985). This negative finding on LILCO's " planning. basis" and the extensive consideration given to that issue by this Board and the Appeal Board are discussed further in Sect!.on II.B.2.

12. Both LILCO and'the Governments appealed the Concluding PID. The-Governments contended on appeal that we erred by limiting the Nassau Coliseum proceedi:a to the

" functional adequacy" of the facility, and by denying discovery on the matter. The Appeal Board held for the Governments on March 26, 1986. ALAB-832, 23 NRC at 160. In remanding the reception center issues to this Board, the Appeal Board broadly defined.the issue for resolutien in a future reception center proceeding as "whether there were any factors -- including the location of the Coliseum relative to the various portions of l

I

1 the EPZ -- that might make that facility unsuitable to serve as the sole reception center for EPZ evacuees." Id., at 162 j (emphasis added).3/

13. Subsequent to the Appeal Board's ruling in ALAB-832, en June 16, 1986, the Nassau County Board of Supervisors i formally withdrew the authority for LILCO to use the Coliseum as its relocation center. Three months later, by motion dated September 30, 1986, LILCO moved to reopen the evidentiary record for the purpose of replacing the Nassau Coliseum'with the three facilities at issue here, LILCO's Hicksville, Bellmore and Roslyn Operations Centers. We granted the motion and held that the reopened proceeding would constitute the remand ordered by ALAB-832. Memorandum and Order (Rulings on LILCO Motion to Reopen Record and Remand of Coliseum Issue)

(Dec. 13, 1986), at'1, 20 ( 'iDec. 11 Memorandum and Order").

14. After receiving the parties' views on the scope of the reopened proceeding, we identified 10 issues to be resolvetj. The first five were derived from the ALAB-832 remand V

order:

(1) Whether transportation and traffic problems might develop as a result of the LILCO facilities' location and their distance from the plume EPZ;

[_/ In a later decision, ALAB-855, 24 NRC 792, 801 (1986), the

l. . Appeal Board rejected LILCO's planning basis appeal.

~

We discuss

.ALAB-855 in Section II.B.2 below.

g _ _ _ _ _ _ _ _ _ _ _ . - ---- _ __

h m

' (2) Whether the LILCO' facilities' location might create

! fproblems in regard to the evacuation shadow phenomenon;

-(3)~ Whether.the proposed use:of thefLILCO' facilities-for reception center purposes requires authorization under state environmental' law; (4) Whether health and safety problems might be caused through'the use of.the LILCO facilities as' reception centers through the effect on the water supply; and (5) Whether the. distance of the LILCO facilities

'from the plume EPZ would increase exposure to radiation.

Egg Dec. 11 Memorandum and Order, at 7, 16.

.15 . We also identified five additional issues raised I

by the. parties to be resolved in the reopened proceeding:

(6) The adequacy of the proposed monitoring procedures; (7) The adequacy of evacuation routes to the

-three LILCO facilities proposed _as reception centers, including the' effects of traffic congestion on the way to and in the vicinity of the facilities, and LILCO's Revision 8 proposal to employ traffic guides on Nassau County roadways; (8) Staffing requirements given the new scheme; ,

(9) LILCO's proposal to transport all evacuees traveling on buses to the parking lot next to its Hicksville facility, when that facility itself is also proposed by LILCO to be the LERO worker relocation center; and (10) Whether the proposal to send evacuees to LILCO parking lots could or would ever be implemented in a way to protect the public health and safety.

L ,,

gaglid., at 17-18. 'A further important' issue raised by our

' Concluding PID and ALAB-855 was the adequacy of LILCO's planning basis, i.e.,.whether LILCO had planned for the-correct uq number of arriving evacuees.

16. The Governments also contended that LILCO's reception centers were not available because LILCO's proposed use of the facilities' violated the respective towns' zoning ordinances.

We deferred consideration of that issue. Egg Section VI, below.

17. During the pre-hearing phase of tnis proceeding, some of the above issues were withdrawn,d/ and the others were con-solidated and/or brought into' sharper focus. As the evidence was presented, the issues fell into the following categories:

l (a) The adequacy of LILCO's planning basis; (b) The adequacy of LILCO's monitoring and decon-tamin-* ion procedures,l/ and related health 1/' The state environmental law and groundwater issues ((3) and (4) above) were withdrawn by the Governments. Suffolk County, State of New York and Town of Southampton Withdrawal of State Environmental Law and Groundwater Issues (April 29, 1987); see Memorandum and Order (Dismissing LILCO's Motion of April 17, 1987 for Summary Disposition, and of April 3, 1987 to compel the Production of a Document, as Moot) (April 30, 1987).

1/ LILCO suggests in its Proposed Findings that the issue of the. adequacy of LILCO's decontamination measurec was not raised by the Board's December 11 Memorandum and Order. LILCO's Proposed Findings of Fact and Conclusions of Law on the Suitability of Reception Centers (Sept. 2, 1987), at 39 n.46

("LILCO Proposed Findingo"). This is incorrect. In admitting issue (10) above, we noted that, while vague, the issue was (footnote continued) o

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~ effects; (c) TheJeffect.of-the location of the reception centers.on evacuation-behavior; and.

(d) 'The effects of traffic congestion on the functioning of the reception centers ~and ,

the capacityJof the reception centers themselves.

Our decision here is structured in Sections II -'V below to addressithose. categories, as well as the zoning issue we earlier deferred (Section'VI).

(footnote continued from previous page) admitted as' clarified by the Governments in an earlier pleading.

Dec. 11 Memorandum and Order, at 18. In that earlier pleading the Governments noted that the issue pertained to LILCO's ability to conduct " timely monitoring and decontamination of

. evacuees . . . ." Suffolk County, State.of New York, and Town of Southampton Response to Licensing Board's Memorandum'and Order Requesting Briefing on LILCO Motion to Reopen Record (Dec. 1, 1986), at 20 (emphasis added). While we stated in our December 11 Memorandum and Order that the issue was admitted because the Governments " clarified in their response that it refers to LILCO's ability to perform radiological monitoring of the 'public," we did not intend the phrase " radiological monitoring" to be used as narrowly as'LILCO suggests. Rather, we were encompassing decontamination within the overall concept of monitoring. Plainly, the two functions are linked under the

. Plan; one dces not happen without the other. See ALAB-855, 24 NRC'at 800.

In any event, LILCO filed substantial testimony on the issue of decontamination and did not move to strike the Governments' testimony on the same issue. Thus, it is evident that LILCO recognized its decontamination facilities and procedures to be at issue -- as did this Board and the rest of the parties.

18. Following discovery and the submission of pre-filed testimony, the evidentiary hearing commenced on June 30, 1987.

The hearing consisted of 11 days of examination, after which the record was closed on July 30, 1987. Tr. 19249 (Margulies).5/

D. Standard of Review / FEMA Findinos l

l 19. The standard by which we must review the reception center portion of LILCO's Plan is the same standard we have applied in the earlier Shoreham emergency planning proceedings

-- that is, whether there is reasonable assurance that adequate protective measures can and will be taken in the event of a l

radiological emergency. 10 CFR S 50.47(a)(1). LILCO, as the proponent of the Plan, has the burden of proving that it has met the NRC's regulatory standards. 10 CFR S 2.732; Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 518 (1986).

20. The NRC's regulations also require that a finding of reasonable assurance under Section 50.47(a)(1) be based on a j review of FEMA findings:

l I

i A list of the witnesses presented by each party and a list of all exhibits introduced at the hearing are attached to LILCO's Proposed Findings as Appendix A and Appendix B, respectively.

The lists have been reviewed and agreed upon by the parties.  ;

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LThe'NRCJwill1 base its~ finding on a review

, of IFEMAl findinas and' determinations as L'" .to whether State and local. emergency plans ~are. adequate and'whether there is reasonable assurance that they can-be implemented.,

'10 CFR.S 50.47(a)(2) (emphasis added). However, as the facts belowLdemonstrate, there have been no FEMA findings on whether

.LILCO's'. current. reception center proposal is adequate, or whether-there is reasonable assurance that it'can be imple-mented. The absence of'any FEMA findings precludes us from approving LILCO's reception center scheme. We discuss the bases.for this conclusion below.

21. Revision 8 ("Rev. 8") of the LILCO Plan' identified the'three facilities at issue here as LILCO's new reception centers.- In addition, Rev. 8 set forth a new procedure for t

monitoring. evacuees whereby evacuees would remain in their vehicles and the hands and feet of the driver only would be monitored. Passengers would not be monitored, nor would other parts of the driver's body. This was a departure from the procedure used in earlier versions of the LILCO Plan under which 611 arriving evacuees left their vehicles and were given a scan of their entire bodies. Egg LEP-85-31, 22 NRC at 417-18.

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22. Pursuant to the Memorandum of Understanding between the NRC and FEMA, the NRC submitted Rev. 8 to FEMA on )

l September 30, 1986, with a request that it be reviewed by the Regional Assistance Committee ("RAC"). FEMA Ex. 3. That review was completed on December 15, 1986 and submitted'to the NRC'on December 30. Id. The RAC found the portion of the Plan pertaining to LILCO's reception centers and Section J.12 "Inadecuate." With respect to the three facilities themselves, the RAC made no findings on adequacy, stating that theit 3de-quacy must be evaluated at a future exercise. Id., Att. 1, a t

11. The RAC found LILCO's proposed monitoring procedure to be inadequate on the ground that it was contrary to Section J.12 to monitor drivers only, rather than all arriving evacuees.

See 14., Att. 1, at 12.

23. On February 20, 1987, LILCO issued draft revisions to Rev. 8 in which, among other things, LILCO proposed to modify its monitoring procedures. In essence, the draft revisions called for the head, hands, feet and shoulders of all arriving evacuees, including passengers, to be monitored while they remained seated in their vehicles. See LILCO Ex. 1 (Crocker et '

al.), Att. P, OPIP 3.9.2, at 9a. At the hearing, it became clear that LILCO considered its draft revisions to the proce-dures to supersede Rev. 8. However, the draft revisions were never submitted to FEMA for review. Tr. 18269 (Husar).1/

I 1/ LILCO did not explcin why it did not seek a RAC review of l (footnote continued) l

24. At the hearing in July, 1987, FEMA's witnesses reiterated that FEMA could not address the adequacy of LILCO's reception centers in the absence of a FEMA graded exercise with I the f,acilities set up as reception centers. FEMA Ex. 2 (Baldwin et al.), at 6, 18; Tr. 18271-72 (Husar); Tr. 18342 1

(Baldwin).8/ No such exercise has yet been held. Tr. 18272 l (Husar); Tr. 18286 (Keller); Tr. 18342-43 (Baldwin). The FEMA witnesses offered no opinions on the adequacy of the facilities t

I (footnote continued from previous page) I its draft revisions To our knowledge, L1LCO's draft revisions to Rev. 8 have not been formally adopted as part of LILCO's Plan. ,

Indeed, LILCO noted that it may modify the draft procedures l further, if necessary. LILCO Ex. 1 (Crocker et al.), at 41. '

E/ The need for an exercise was highlighted by the testimony of Mr. Keller who stated that the FEMA witnesses had toured the three facilities at issue:

Well, I would characterize it as we toured the operations centers, because they were not set up as reception centers yesterday . . . .

We went to the facility as it is used in its day-to-day operations. In other words, LILCO was using it as an area to do its normal gas and electric function. So, I wouldn't call it a reception center because the cones weren't set up, the reception center personnel weren't there. We did have a LILCO representative with us who did I explain what it would be in the event, and we had the colored maps I guess we call them, right.

But, it wasn't really a reception center that I saw yesterday. I saw the trailers which will be used for decontamination. I saw the areas that the evacuees would be directed to. I saw the flow paths.

But I didn't see a reception center yesterday.

Tr. 18337 (Keller).

themselves,l/ and no party disputed that a future exercise was needed in order to judge the adequacy of the facilities themselves.lE/  !

2 5. The FEMA witnesses also testified that they had not reviewed LILCO's February 20 draft revisions, includin's LILCO's proposed new monitoring procedures. Tr. 18269 (Husar);

Tr. 18305 (Keller). While there was some limited FEMA testimony elicited on cross-examination which was relevant to LILCO's procedures, it was largely inconclusive and much of it was negative to LILCO's case. See cenerally Section III, below. None of the limited testimony elicited on cross-examination is of the kind that we can say rises to the level l of FEMA findings on which a reasonable assurance finding may be based. Indeed, Mr. Keller specifically stated that he was unable to determine at that time whether LILCO's proposed monitoring procedures were adequate, but noted that the procedures as he understood them were controversial.

Tr. 18309-10 (Keller).ll/

2/ The one exception was Mr. Keller's personal opinion that the

-LERO Family Relocation Center located at the Hicksville Operation 3

CentGr would not interfere with the operation of the rest of the reception center function. Tr. 18434 (Keller).

1S/ LILCO did not address this matter in its Proposed Findings.

1 i

11/ While the NRC Staff's testimony is not a substitute for FEMA {

! findings, we note also that the Staff presented no evidence on l the adequacy of LILCO's facilities or procedures. Rather, the I Staff's testimony was limited to the planning basis and traffic 1 issues. See NRC Staff Ex. 3 (Urbanik); NRC Staff Ex. 5 (Kantor I and Hulman). )

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26. In light of the above facts, we cannot find that LILCO's facilities and procedures are adequate. Section 50.47(a)(2) requires, in mandatory language, that we "will base" our reasonable assurance finding on a review'of FEMA findings. While it is plain from other portions of Secti.on 50.47(a)(2) that evidence in addition to FEMA's findings may be considered,ll/ it is clear that FEMA findings and determina-tions -- whether preliminary, interim, or final -- are recuired by the NRC's rules before the NRC can make a favorable reason-able assurance finding. Here, however, there are no FEMA find-ings on the adequacy of LILCO's reception facilities and no FEMA findings on the adequacy of LILCO's current monitoring or 1

! decontamination procedures. Indeed, the only existing FEMA findings on LILCO's proposed reception center scheme are the RAC findings on Rev. 8 which are negative. See FEMA Ex. 3.

Accordingly, in tne absence of FEMA findings to review, we are i

precluded by the NRC's rules from making a reasonable assurance finding in LILCO's favor on the reception center issues.ll/

I ll/ Parties have the right to attempt to rebut FEMA findings. j 10 CFR S 50.47(a)(2). '

12/ Even if we were not to read the language of Section 50.47(a)(2) as mandatory, we would reach the same conclusion where, as here, there is evidence that the procedures LILCO proposes are, at best, controversial and where the adequacy of the facilities themselves is a matter which is directly contested by the parties. Indeed, the facilities are not the type of facilities that are typically used as reception centers. See Tr. 18365 (Keller). These are matters on which inspection and evaluation by FEMA's emergency planning experts are particularly crucial.

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27. Our conclusion is consistent with, and indeed is l 1

supported by, NRC case law holding that preliminary or interim FEMA findings are a sufficient basis for an NRC Licensing Board )

to render its decision. See Pacific Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 1 20 NRC 819 (1984); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-776, 19 NRC 1373 (1984); Cincinnati Gas and Electric Co. (Wm. E. Zimmer Nuclear 1

! Power Station, Unit 1), ALAB-727, 17 NRC 760 (1983). In those j I

decisions, the Appeal Boards held that preliminary FEMA reviews j i

and findings were sufficient to comply with 10 CFR l 5 50.47(a)(2) "as long as such information permits the Licensing Board to conclude that offsite emergency preparedness provides ' reasonable assurance that adequate protective l I

l measures can and will be taken in the event of a radiological j emergency.'" ALAB-776, 19 NRC at 1379; see ALAB-781, 20 NRC at 828-29.

28. Consistent with the foregoing cases, we cannot dis-regard the fact that in this proceeding the FEMA 'information"  !

I which would permit a reasonable assurance finding does not  ;

i exist. The plain corollary of the foregoing ALAB decisions is  !

I that where, as here, we-do not have preliminary or interim FEMA l l

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findings, or even FEMA testimony opining on the adequacy of the faci]ities or procedures,-there can be no reasonable assurance finding pursuant to 10 CFR S 50.47(a)(1).li/

29. In short, the absence of FEMA findings regarding the adequacy of the proposed reception center portion of LILCO's Plan is fatal to LILCO's efforts to prevail in this proceeding.

Accordingly, it is not necessary for us to proceed further into the merits of the matter. Nevertheless, we will do so, sints the evidence demonstrates that, in any event, LILCO has fai. led to establish that the reception center portion of its Plan is adequate.

l l$/ We observe also that the circumstances here are different from those existing in the earlier proceeding concerning the 1 Nassau Coliseum. There, FEMA witnesses offered preliminary  !

testimony that the Nassau Coliseum was suitable, based upon the I plan materials they had reviewed. They then noted that final )

FEMA approval was dependent upon an exercise and incorporation of .

additional details into the Plan. Affidavit of Baldwin et al.e ,

ff. Tr. 15991. Here, however, there is not even a preliminary cr conditional FEMA finding of adequacy. Indeed, we note again that  ;

i the most current FEMA findings on LILCO's reception centers are i negative. )

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II. ELANNING BASIS

1. Issue

30. The LILCO Plan provides that during a Shoreham accident involving a release of radioactive particulate, members of the public residing in the EPZ will be instructed to proceed to the reception centers for monitoring. LILCO Ex. 1 (Crocker et al.),

Att. P, OP:P 3.6.1, at 2. A threshold question which we must address is the adequacy of LlLCO's " planning basis" -- i.e., the number of people for which LILCO is planning to provide monitoring and, if necessary, decontamination, at tne reception centers.

31. The " planning basis" issue is fundamental for an obvious reason: unless one knows what circumstances to plan for, there can be no basic to find that the preparations that have been made are adequato. An adequate planning basis requires an assessment of the number of people likely to seek monitoring in the event of

.a Shoreham accident. Assuming that such an assessment is sound, the emergency planner can determine the number of personnel and the amount and types of equipment which must be provided at the reception centers. In addition, the emergency planner can assess whether the facilities provided as reception centers and the routes leading to them are physically capable of serving their intended functions. Se6 NY Ex. 1 (Papile et al.), at 5-6.

Accordingly, there can be no assurance that there is adequate planning to meet expected demand for reception center services in I

! the absence of an appropriate planning basis.

1

2. Procedural History

32. Before addressing the evidence presented by the parties, it is important to review the history of the planning basis issue, an issue addressed previously by this Board and the Appeal Board. When we issued our Concluding PID on August 26, 1985, we noted that LILCO had based its Plan on the assumption l

l that no more than 20% of the EPZ population would arrive at its reception center (which was the Nassau Coliseum at that time).

That LILCO assumption, however, was derived from estimates of the 1

number of people who would require shelter in a Shoreham emergency, not the number of people who might seek monitoring regardless of needing shelter.

33. We rejected L1LCO's planning basis approach:

LILCO did not justify how this number [20% of the EPZ population] could be related to the number of persons who might seek monitoring.

The Board finds that the number of persons expect.ed to seek shelter in the event of a disaster is not necessarily the same as the number of persons who might seek monitoring in the event of a radiological accident.

1 LBP-85-31, 22.NRC at 417. Accordingly, we found that LILCO's failure to plan for those who will seek monitoring made it impos-sible to determine whether the Nassau Coliseum was suitable, constituting a defect in the Plan. Id.

34. In a subsequent opinion, we clarified our Concluding PID at the request of the Appeal Board. See Clarifying Decision on Remand (Monitoring of Evacuees), LBP-86-36, 24 NRC 561 (1986).

With respect to the planning basis issue, we observed that while LILCO's pleadings and testimony reflected that LILCO was confident it had carried its burden on the matter, LILCO's confidence was misplaced. We reached that conclusion because i

LILCO's 20% estimate was based on an assessment of how many peo- 1 ple had required abelter in previous natural disasters _. As we i stated:

l This left the question of radiological monitcring of the evacuees arriving at the i reception center open and unanswered. The  !

need for monitoring and the need for shelter j arise from different reasons for evacuees, and '

J.ndependent analysis is needed to formulate a plannino basis for the total number needino service.

Id., at 570 (emphasis added).

35. On appeal, LILCO argued that there was no regulatory requirement tha' it provide monitoring for any members of the public other than those arriving at reception centers for l

l l l

shelter. In rejecting LILCO's arguments, the Appeal Board con-firmed our ruling that estimates of the number of people .requir-ing shelter have no bearing on the question of how many people i

may arrive at reception centers for monitoring.

LILCO's planning estimate simply failed to take into account that radiological accidents produce a category of individuals who require monitoring and degantamination, even if they do not require shelter.

ALAB-855, 24 NRC 792, 797 (1986). The Appeal Board further stated:

Surely, the need for evacuees for monitoring and decontamination services does not hinge to any extent upon whether they have been able to make their own shelter.ing arrangements, k

• t It seems highly probable that many Individuals who manifestly should be monitored as a matter of caution will both wish and be able to obtain sheltering at other than a facility supplied by LILCO or another participant in the emergency response plan.

Id., at 800 and n 31.

36. Accordingly, the Appeal Board upheld this Board's decision, noting that we were justified in imposing on LILCO the duty of estimating how many evacuees would seek monitoring inde-pendent of any sheltering needs. Id., at 801. The Appeal Board

further held that in this reopened proceeding, LILCO could attempt to reassert its 20% planning basis, but that LILCO's claim that this figure was adequate " appears to us to be of dubi-ous validity." Id. LILCO sought Commission review of ALAB-855, but LILCO's petition was denied. Memorandum to Board and Parties from Samuel J. Chilk, Secretary of the Commission (June 23, 1987).

37. In light of this history, it is plain that LILCO must develop a reception center planning basis derived from a sound estimate of the number of people who may seek monitoring in an emergency. That estimate cannot be based on the number of people who sought shelter in other disasters (such as natural disasters). Rather, it must be the product of an " independent analysis" of the number of people who will seek monitoring. For reasons discussed below, we find that LILCO has failed to satisfy this requirement. j i

3. Summary of Parties' Positions on Plannino Basis 4 l

38. Rev. 8 of LILCO's Plan does not state how many evacuees i

are expected to arrive at LILCO's reception centers in the event l I

of an emergency. See generally LILCO Ex. 1 (Crocker et al2),

Atts. Q, R. However, LILCO's pre-filed testimony and some pro-l posed draft Plan revisions attached to that testimony indicate l

! that LILCO has adopted a planning basis which assumes the arrival 1

of about 30% of the.EPZ population at the reception centers.ll/-

Eeg LILCO Ex. 1-(Crocker et al.), at 3-12 and Att. P, OPIP'4.2.3, at 3. In order to provide' monitoring for the arriving evacuees,

.LILCO intends to establish a total of 63 monitoring stations (each manned by 2 monitors and a traffic guide)'at its three reception centers. On the assumption that it takes 100 seconds to monitor a. vehicle and all of its passengers (an unduly.opti-mistic. assumption which,we reject, agg Sections III.B.2 and III.C, below), LILCO asserts that it actually could monitor over 1

30% of the EPZ population in 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> with these resources.

LILCO Ex. 1 (Crocker et al.), at 4.15/

39. If more than 30% of the EPZ population arrives at its reception centers, LlLCO intends to attempt-to cope with the excess demand by seeking assistance from the Institute of. Nuclear Power Operations ("INPO") and the Department of Energy (" DOE")'to can additional monitoring stations and provide additional equipment. Id. If available outside personnel cannot handle the demand, LILCO intends to revert to a monitoring procedure in which not all' arriving evacuees are monitored. Rather, only the hands and feet of the vehicle driver will be monitored. If the driver is not contaminated, passengers in the vehicle from the ll/ The 1985 estimated summer population of the EPZ is

.approximately 160,000. LILCO Ex. 1 (Crocker et al.), at 42.

15/ In fact LILCO oelieves that it can monitor 46.6% of the l EPZ population under certain assumptions which we reject, as explained further below. LILCO Proposed Findings, at 31.

I 1

same point of origin will not bo monitored (unless they request to be monitored), nor will LILCO monitor any other portions of the driver's body. Id.

40. FEMA and the NRC Staff support LILCO's planning basis as reasonable, largely on the basis of a FEMA memorandum which will be discussed in greater detail below.

l 41. The Governments dispute LILCO's planning basis, arguing that it is unrealistically low. The County's witnesses offered evidence tending to prove that in almost any accident scenario involving a need for monitoring the public, far more people will seek monitoring at LILCO's three reception centers than LILCO assumes. The result will be that LILCO's facilities, resources and personnel, as well as the roads leading to the reception centers, will be overwhelmed during an accident as the demand for monitoring outstrips LILCO's ability to provide it. See SC Ex. 13 (Cole et al.), at 9-12.

42. The State's witnesses agreed with those of the County that LILCO's planning basis is far too limited. They testified that Section J.12 must be read prudently to require planning to monitor at least 100% of the EPZ population within about 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. See NY Ex. 1 (Papile et al.), at 7-10. They also ques-l tioned LILCO's ability to expand its response by enlisting out-l side entities in a timely manner. Id., at 22.

2 m

l

43. 'For the' reasons set.forth below, we agree with the Governments that.LILCO's planning basis is inadequate because it.

conflicts with the Section J.12 requirements and underestimates the number of people who are likely to arrive at'the reception centers for monitoring. Accordingly, we cannot find that there is reasonabic F.ssurance under LILCO's Plan that the public arriving at LILCO's reception centers will be adequately protected.12/

1' l

11/ The County's witnesses on this issue were Stephen Cole, James H. Johnson, Jr., Susan C. Saegert, David Harris, Martin Mayer, Gregory C. Minor and Steven C. Sholly. The State of New York presented the testimony of James D. Papile, James C. j Baranski and Lawrence B. Czech. l l

Witnesses appearing on LILCO's behalf were Douglas M. I Crocker, Diane P. Dreikorn, Dale E. Donaldson, Michael K.

Lindell, Dennis S. Mileti, Richard J. Watts, and Edward B. 3 Li'eberman.- FEMA's witnesses were Thomas E. Baldwin, Ihor W. j Husar and Joseph H. Keller.- The NRC Staff offered Falk Kantor I and Lewis G. Hulman as witnesses on its behalf. j The Board finds that the witnesses for all parties were generally well qualified and familiar with the matters on which they testified. See aenerally, SC Ex. 13 (Cole et al.), at 2-8 and Atts. 1-7; NY Ex. l'(Papile et al.), at 1-3 and Atts. 1-3; LILCO Ex. 1 (Crocker et al.), at 2-3 and Atts. A-G; FEMA Ex. 2 (Baldwin et al.), at 2-4 and attached resumes; NRC Staff Ex. 5 2 (Kantor), at 1 and (Hulman), at 1 and attached resumes. For i reasons described in greater detail below, we have given little weight to the testimony of certain witnesses.

I l

l, s

(- . .

B. -Analysis of:Section J.12

1. Section"J.12'and NRC Case Law-44.- We now turn;to the question of what.the appropriate.

i -planning basis should.be for the Shoreham plant. Unfortunately, Section-J.12.(set'forth in>Section I.A, above) does not provide

'the. answer on'its' face. .Section J.12 states that all EPZ resi-dents and transients arriving at relocation centers must be L . .

monitored. ,The provision does not specify, however,.how.many EPZ evacuees,to expect or whether one should plan for all EPZ resi-dents to arrive.

1 i

D

45. Turning to the case law, our-research has discovered only one case which addresses the matter. In Southern California Edison Co'.- (San Onofre Nuclear Generating Station, Uni.ts 2 and z 3), CLI-83-10,-17 NRC 528, 536 n.12 (1983), the Commission, while addressing a somewhat different'. issue, observed that'Section J.12' of NUREG 0654:

requires relocation centers capable of regis-i tering and monitoring ~all residents and tran-sients in the plume exposure EPZ .. . .

( (Emphasis added). This language suggests that Section J.12

( requires planning to monitor 100% of the EPZ'in abcut 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />.

While the primary focus of the Commission's San,Qqofre_ opinion 1

was not specifically on the issue before us; and thus the above i 1

i

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statement arguably constitutes dicta, we must give this observa-tion weight in our decision, particularly since the NRC was speaking with particular reference to what it understood Section J.12 to require. Furthermore, it is the only statement by the Commission on the subject. Nevertheless, we do not end our inquiry here. Rather, we shall proceed to examine and evaluate the arguments and evidence presented by the parties on this matter.

2. The Krimm Memorandum

46. LILCO, FEMA, and the NRC Staff rely heavily on a one and one-half page memorandum, dated December 24, 1985, and authored by Richard W. Krimm, FEMA's Assistant Associate Director for State and Local Programs and Support. See FEMA Ex. 1; LILCO Ex. 1 (Crocker et al.), at 3-4, 9-10; FEMA Ex. 2 (Baldwin et al.), at 7; NRC Staff Ex. 5 (Kantor), at 5-7. The "Krimm Memorandum," as it was referred to throughout the proceeding, purports to offer guidance on compliance with Section J.12.

47. In essence, the Krimm Memorandum states that Section J.12 of NUREG 0654 is met where planning and resources are provided to monitor 20% of the EPZ population. The Krimm Memorandum vaguely explains the derivation of the 20% figure by I

noting that while " previous experiences" in unspecified natural and technological emergencies are "not conclusive," "research" L______--_

N shows that "ahwherefrom3to20%oftheevacueesarrivedat relocatici denters or shelters." Egg'FEMALEx. 1, at 1. The

.Krimm Memorandum then concludes that because people will want to allay thsir. concerns about radiation, the upper bound of the 3 to 20%snelkkijngrangeisappropriatetousetodeterminethe number of people who will go to reception centers for monj.torino.

Egg id. If more than 20% of the EPZ population arrives at the reception centers, unspecified "ad hec" measures are to be developed and imp 2emented during an accident. 1s.

l l

l 48. Raving carefully revieve6 the Krimm Memorandum and the l circumstances surrounding .its developrant, we conclude that we must: reject it on several grounds. First, the Krimm Memorandum l

runs afoul of this Board's, and the Appeal Board's, rulings that FAthe.rMa data provr.!e no basis to estimate the number of people who will saek monitoting, it is apparent from the face of the

Memorandum and, from th".? testimony on cross-examination, that the 3-20% range in dne Keimm Memorandum is derived from the number of people who have sought she;ter, not monitoring, in previous emergencies, most of .hich were natural disasters. FEMA Ex. 1; Tr. 18320-22 (Keller); NY Ex. 1 (Papile et al.), at 12.18/ The ll/ Mr.ke1erteatifiedthat, in fact, the actual statistics demonstrate that a range of from 3 to 15% of all evacuees attempt to seek. shelter at relocation center.c and that he understood the 20% figure to include a " fudge factor," implying that the additional 5% was meant to account for those requiring monitoring

'only. See Tr. 18321-23 (Keller). Exactly how this " fudge l factor" was arrived at, what it represents, and whether it has  !

, nny validity could not be explained by FEMA. See fr. 18356-61 l thasdr). Nor is there any mention of such a consideration on the (footnote continued) l l

l 29 -

Krimm Memorandum is not based on any technical analyses, reports, or studies of the number of people who will seek monitoring.

Tr. 18316-17 (Keller). Nor is there any explanation given why the upper bound of those seeking shelter in previous emergencies provides insight into the number of people who will arrive for monitorina in a radiological emergency. See FEMA Ex. 1. 19/ In short, it is plain that the Krimm Memorandum is founded on pre-cisely the kind of data and reasoning which have previously been rejected by this Board and the Appeal Board and falls far short of the " independent analysis" we have ruled is required. See LBP-86-36, 24 NRC at 570.

49. LILCO suggests that because the Krimm Memorandum calls for a 20% planning basis, and because it has exceeded that guid-ance in developing its own 30% planning basis, it has met the requirements of Section J.12 and our prior decisions. LILCO Proposed Findings, at 31; see LILCO Ex. 1 (Crocker et al.), at 4-5. We disagree. Increasing an arbitrary and insupportable number, which conflicts in methodology with our prior decision (footnote continued from previous page) face of Krimm Memorandum. See FEMA Ex. 1. Therefore, we give Mr. Keller's testimony on this issue no weight.

19/ While the accident at TMI is apparently one of the accidents l

on which the Krimm Memorandum is based, the data used by FEMA from that accident pertain to shelter-seeking behavior, not

' monitoring-seeking behavior. Tr. 19197 (Kantor); SC Ex. 33.

Indeed, Mr. Kantor testified that he did not believe monitoring was even offered at the TMI reception centers. Tr. 19195 (Kantor). Thus, contrary to LILCO's Proposed Findings, at 16 and 28-29, the number of people who traveled to the TMI reception centers for shelter is irrelevant to this issue.

I _ _ _ _ . . _ _ . _ _ . . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

and that of the Appeal Board, by 50% or more still yields an arbitrary and insupportable number. LILCO's planning basis is not the product of any true analysis of the issue, such as we earlier required. Nor were we provided with any valid reasons for relying on sheltering experiences to predict behavior related to monitoring following a radiological accident. While under other circumstances LILCO might be justified in relying on FEMA guidance concerning the meaning of certain regulatory requirements, such reliance was misplaced here, particularly l

l sir.ce LILCO was aware of the decisions which have already held the bases of the Krimm Memorandum to be invalid.

50. Second, aside from failing to meet the standards estab-lished by this Board and the Appeal Board, the Krimm Memorandum is also inapplicable because it does not address the circumstances which would apply to an emergency response under the LILCO Plan.

Specifically, if a release of radioactive materials occurs "with the potential to contaminate evacuees," LILCO EBS messages will instruct those evacuees to proceed to LILCO's reception centers for monitoring. LILCO Ex. 1 (Crocker et al.), Att. P, OP1P 3.6.1, at 2. In relying solely on shelter-seeking, the Krimm Memorandum does not take into account that a Shoreham accident could require advising a much larger fraction of the EPZ population to seek monitoring than the 20-30% LILCO assumes; severe accident conditions might even require monitoring the entire EPZ population. See NY Ex. 1 (Papile et al.), at 8.

i 1

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51. In fact, in the exercise of the LILCO Plan held on February 13, 1986, LILCO " instructed" over 95,000 people, approx-imately 60% of the summertime EPZ population, to report to its reception center (at that time the Nassau Coliseum) for radiolog-ical monitoring. Id., at 8-9. LILCO argued that the exercise postulatec a very unrealistic and extreme situation in order to test its Plan, suggesting that no conclusions regarding an appro-priate planning basis should be drawn from that simulated advisory. See LILCO Ex. 1 (Crocker et al.), at 59. FEMA's witness, Mr. Keller, testified, however, that the level of radio-active particles which were postulated to be raleased during the exercise was not very high at all. Tr. 18413 (Keller). In light of this testimony, we find that LILCO's own exercise demonstrates that for planning purposes, it is ressonable to assume that a much larger number of people than merely 20-30% of the EPZ l population will require or seek monitoring.

52. Third, the Krimm Memorandum is also of little probative value because it does not address the effects or the merits of the

" monitoring shadow" -- that is, those people who may report to LILCO's reception centers for monitoring even though not expressly advised to do so. See Tr. 18324 (Keller); FEMA Ex. 1. As dis-cussed in greater detail in Section II.C.3 below, there could be a substantial monitoring shadow which would contribute to the likelihood that arriving evacuees at the reception centers would surpass the 30% planning basis which LILCO proposes.

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Li i

53. -Fourth, the Krimm Memorandum does not support a 20% (or 30%)-planning basis-because the LILCO reception centers will be performing a dual function. In the event of an evacuation, all

' people who are in need of shelter and those requiring only moni-l toring will be advised to go to LILCO's reception centers. See L LILCO Ex. 1 (Crocker et al.), Att. P, OPIP'4.2.3, at 3, 7; Tr.'17437 (Crocker). LILCO estimates that up to 20% of the population may need shelter. LILCO Ex. 1 (Crocker et al.), at 3.

~There will be some overlap between those who require shelter and

'those who require monitoring; but, even using LILCO's assumptions, up to 30% of the population.could arrive at the reception centers.for monitoring and another significant portion of the EPZ could arrive for purposes of seeking shelter. Thus, more_ people may arrive at LILCO's reception centers than the.30%

of'the EPZ-population LILCO assumes. SC Ex. 13 (Cole et al.), at 49-50; ggg Tr. 18328-29 (Keller).

L

54. Finally, we cannot ignore the unusual origins of the Krimm Memorandum. The document was prepared in response to an inquiry to FEMA by Mr. Keller, who anticipated after the initial Shoreham emergency planning hearings in 1984 that the planning basis issue would surface again in later Shoreham licensing proceedings. See FEMA Ex. 1 (Keller letter); Tr. 18315 (Keller).

The Krimm Memorandum was issued shortly thereafter. We note, i however, that while the document purports to be official guidance, i it does not meet any of FEMA's criteria for the issuance of FEMA guidance materials related to its radiological emergency prepared-

[

______J

ness program. . Eeg Tr. 18161 (Papile). This.is evident from an analysis of FEMA Guidance Memorandum IT-1-("GM IT-1"). See SC Ex. 18.

55. GM.IT-1, which itself is official guidance, explains that there are four levels of FEMA guidance materials issued under its radiological emergency protection program. The first level constitutes publications which are regulatory in form, content.and intent. These include FEMA's regulations and the Memorandum'of Understanding between NRC and FEMA. Level-2 docu-ments'contain major policies and guidance that have been incor-porated into the FEMA-REP series, such as NUREG 0654/ FEMA-REP-1.

Level 3 documents contain clarifications of policy and procedures.

and are designated as " Guidance Memoranda." Level 4 documents-include a variety of publications, including research reports, studies of various accidents and other such documents.

Tr. 18191-92 (Baranski); see SC Ex. 18.

56. ' Plainly, the Krimm Memorandum does not fall within I Levels 1 or 2. It also does not fall within Level 3. Operative guidance memoranda are listed as an attachment to GM IT-1. The Krimm Memorandum is not among the documents listed. See id.,

l Att. 2. In addition, GM IT-1 states that FEMA Guidance Memoranda are to be designated by a special numbering scheme. The Krimm

'~

Memorandum reflects no such numbering scheme. Tr. 18193-96 1 i

(Baranski); see SC Ex. 18, at 1, 3. Furthermore, Level 3 docu- i

ments are to be developed in coordination with other organizations. There is to be a 30-day review and comment period for FEMA regional offices and a concurrent 30-day review and comment period for the NRC and other organizations. SC Ex. 18.

These procedures were not followed in the case of the Krimm Memorandum.21/

57. Finally, it is evident that the Krimm Memorandum is not the type of research reports and analyses set forth as Level 4 documents. Tr. 18197 (Baranski); see SC Ex. 18. In addition, it does not bear a REP series number, as such materials should. Eeg id.

20/ While the Krimm Memorandum was issued in December, 1985, FEMA never brought it to the attention of New York State's Radiological Emergency Protection Group ("REPG"), which conducted the State's emergency planning for radiological emergencies, until this year. Indeed, REPG only became aware of the Memorandum at the commencement of this litigation when informed by counsel for the State. This is contrary to FEMA's agreement with the State that REPG be permitted to comment on all guidance documents before they are issued. See Tr. 18153-55 (Papile);

Tr. 18248-49 (Baranski); Tr. 18491 (Husar); NY Ex. 1 (Papile et al.), at 14-15. It is also contrary to GM IT-1. See SC Ex. 18.  !

We are unpersuaded by LILCO's suggestion (LILCO Proposed Findings, at 21-22, n.21) that FEMA's duty to inform REPG of pertinent guidance of general applicability was met because the  !

Krimm Memorandum was attached to a LILCO pleading served on State ]'

, lawyers not connected with REPG. There was no testimony offered

[ at the hearing that these lawyers were informed that the Krimm Memorandum had not already been provided to REPG by FEMA in the ordinary course of business, as one would reasonably assume since I REPG is the relevant emergency planning organization within the l State which PEMA would be expected to contact directly on this I matter.

1 1

t___________-------_-- '

58. In short, the Krimm Memorandum does not fall within j i

FEMA's own description of valid FEMA guidance under its radiolog- l ical emergency preparedness program.

59. In light of all of the facts surrounding FEMA's attempt to address the planning basis issue, the question is raised whether its guidance on the matter is of any value at all. We recognize that FEMA's institutional mission confers upon it expertise in the area of emergency planning and that under most circumstances, we should give its interpretation of emergency planning regulations and guidance considerable weignt. In this instance, however, we are unable to do so, and find that for the reasons discussed above, FEMA's views have been effectively rebutted.

l l 60. At best, the record show3 FEMA's substar.clal confusion and indecision on the meaning c: Section J212. FEMA's own teit-ness had to ask FEMA for guidance on the issue. When that guid-ance was jesued, however, FEMA drew fios an inappropriate data  ;

base. Furthermore, ortce the so-callad guidance was issued, it apparently was not disseminated to outside organizations in the ordinary course of business and did not adhere to normal FEMA standards. Moreover, it appears that FEMA hac in fact applied different standards in evaluating som9 plans even after the Krimm Memorandum was issued. See Section II.B.5, below.ll/ These 21/ One further example of the confusion exhibited by FEMA comes (footnote continued)

L_____________. - --

' anomalies cast further doubt on the general applicability of the Krimm Memorandum.

61. . In light _of the foregoing, we find'that we cannot give substantial weight to FEMA's interpretation of the meaning of l Section J.12, as reflected in the Krimm Memorandum, or to its l

witnesses'Eopinions regarding an appropriate planning basis'for.

monitoring. Likewise, for all of the reasons stated above, the Krimm Memorandum provides no persuasive support for LILCO's plan-ning basis.

1 (footnote continued from previous page) from its own testimony. While FEMA claims that a 20% planning basis is appropriate, nevertheless in evaluating LILCO's capability to monitor the transit-dependent population, the FEMA witnesses adoptea a 100% planning basis and found that LILCO lacked sufficient monitors for the task. Egg FEMA Ex. 2 (Baldwin et al.), at 16; Tr. 18298-302 (Keller). FEMA witness Keller testified that LILCO's ability to monitor the transit-dependent population was evaluated differently from the general population planning basis because all people who need transportation will be taken to.the Hicksville reception center. Tr. 18435-36 (Keller).

This " explanation" is not convincing. In the event of an emergency, not all of the EPZ would necessarily be evacuated and therefore not all of the transit-dependent members of the EPZ population would be evacuated from the EPZ. Tr. 18300 (Keller).

Yet, FEMA assumed for planning purposes that 100% of the transit-dependent EPZ population will arrive at Hicksville.

Tr. 18302 (Keller). We agree with this approach and see no logical reason to treat the general population differently for p planning basis purposes.

l

3. LILCO's Testimony on Reoulaterv Mistpr_v ef Sgstion J.12

62. LILCO offered the testimony of Mr. Dale Donaldson, a former NRC employee. LILCO asserted that as a member of a three-man team which drafted a document trat was the "procarsor" of NUREG 0654, Mr. Donaldson could offer insight into the renulatory history of Section J.12, which in turn would be useful 3 in ' interpreting the provision. See LILCO Ex. 1 (Crocker et al.),

at 6. We disagree.

(

63. In essence, Mr. Donaldson testified that when the pre-cursor document was prepared, it contained no language similar to Section J.12; indeed, it did not address the reception center monitoring basis &t all. The team preparing the precursor docu-ment did not have in mind a specific number of evacuees which one must plan to monitor, but believed that only a small percentage of the EPZ would require monitoring. He also testified that once the precursor document was prepared, it was used by a FEMA /NRC Steering Committee to draft NUREG 0654. See id. We find this testimony to be of no probative value.

I

64. First, neither LILCO nor Mr. Donaldson ever pr.oduced a copy of the " precursor" document for this Board and the parties to review. See Tr. 17438-39 (Donaldson). Indeed, Mr. Donaldson I has not seen the document in five or six years. Tr. 17439 )

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4 (Donaldson). We are hesitant in these circumstances to rely on

- memory, without being able to view the actual document upon which thic testimony was based.

65. Further, notwithstanding the absence of the precursor document, we find that Mr. Donaldson's participation in its drafting sheds no probative light on the meaning of Section Jel2.

The document he and his team prepared did not contain any language similar to Section J.12. LILCO Ex. 1 (Crocker et al.),

at 8; Tr. 17444 (Donaldson). Nor did it address in any way the number of people likely to appear at reception centers.

{

Tr. 17449 (Donaldson). Furthermore, once the precursor document was sent to the Steering Committee, Mr. Donaldson does not know in what way the document was used to develop NUR.3 0654.

Tr. 17447 (Donaldson). None of the Donaldson team was on the Steering Committee and the Steering Committee never consulted Mr. Donaldson or his team regarding the number of people who ,

I' might arrive at reception centers. Tr. 17446-47, 17449 (Donaldson).

1

66. Sometime after the precursor document was submitted, the Steering Committee issued a draft of NUREG 0654, known as Rev. O, for comment. Rev. O contained some language similar to Section J.12, but without the 12-hour time limitation.

L Tr. 17447-49, 17747 (Donaldson). Nine months later, NUREG 0654 i

was issued in its present form. Mr. Donaldson conceded that he l I I l

l L _ _ _ __-- _ _ _ - ---_ _- ---- -

did not draft the final language in Section J.12, nor does he know how it was derived. Tr. 17450-51 (Donaldson). Indeed, he expressed confusion as to the meaning of the provision "to this I day." Tr. 17451 (Donaldson). While Mr. Donaldson believes that the general beliefs and assumptions he and his team held when drafting the precursor are reflected in NUREG 0654, he has no specific knowledge whether his prior beliefs about the number of people likely to arrive at reception centers were shared by the drafters of NUREG 0654 or incorporated into Section J.12.

Tr. 17454-55 (Donaldson). Indeed, given the fact that the Steering Committee adopted different language from that which Mr. Donal6 son submitted to it, the opposite should be assumed.

67. In light of these facts, we give no weight to Mr. Donaldson's testimony.

l 4 1

4. NRC Staff Interpretation j

68. The NRC Staff offered the testimony of Mr. Talk Kantor, a section chief in the NRC's Emergency Preparedness Branch, )

Office of Nuc3 ear Reactor Regulation,. in support of LILCO's plan-ning basis. See cenerally NRC Staff Ex. 5 (Kantor).

69. Mr. Kantor endorsed the Krimm Memorandum as appropriate l guidance on Section J.12. Id., at 5-7. Although Mr. Kantor had 1

no input into the drafting of Section J.12 (Tr. 19200 l

r 40 -

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(Kantor)),22/ he testified that the intent of the provision was that off-site organizations need not have the capability to moni-tor 100% of the EPZ population. Rather, accordina to Mr. Kantor, I the intent was to require monitoring of a " reasonable number of evacuees to determine the extent of contamination." He 1

l acknowledged, however, that language demonstrating such an intent does not appear in Section J.12. Tr. 19200-01 (Kantor); see NRC S ta f f 'Ex . 5, at 4. Given Mr. Kantor's lack of direct involvement l in Section J.12's preparation, we find that he had no valid basis for his testimony.

70. Mr. Kantor also stated that he believed the 12-hour 1

l time limitation was not included in Section J.12 for health and safety reasons, but rather as a " benchmark" to be used in l evaluating the resources available during the planning stage.

l Tr. 19225-26 (Kantor). Mr. Kantor provided no basis for this belief. Further, we find this to be a distinction of no signi ficance . Plainly having sufficient resources readily avail-

)

I 22/ Neither the NRC staff nor FEMA produced any witnesses who L were actually involved in the preparation of the language currently found in Section J 10. The NRC and FEMA presumably had it in their power to identify and produce such witnesses. When a party has such power but declines to produce witnesses who may have relevant data, it is appropriate to infer that the evidence, J

if produced, would have been unfavorable to the NRC/ FEMA position. See cenerally Public Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-471, 7 NRC 477, 498 fl978) rgv'd_on other arounds, CLI-72-14, 7 NRC 952 (1978).

l

i able to monitor a sufficient number of people has a direct bear-ing on the health and safety of the public. Therefore, we must reject this testimony, as well.21/

71. In short, we find no basis for Mr. Kantor's apparer.t rejection of the 12-hour time limit. The 12-hour requirement is plainly set forth in Section J.12.24/ No exceptions to it are specified; nor are there any indications that the requirement does not have a basis in protecting the health and safety of the public.21/

l 23/ Mr. Kantor also offered an opinion on the meaning of the 12-hour time limit embodied in Section J.12. According to Mr. Kantor, the Staff recognized that a serious accident could result in a large release of radioactive materials off-site requiring monitoring of far more than a fraction of the EPZ population. In such cases, the monitoring capabilities of the local off-site agency would need to be expanded by other industry and governmental sources including the Federal government. For reasons wbich we do not understand and which were never well explained, Mr. Kantor asserted that the Staff does not consider the 12-hour period to be applicable in the " extraordinary" situation where such expansion is necessary. The only explanation offered by Mr. Kantor for this assertion is that the industry and governmental resources would be expected to respond on a best-efforts basis. See id., at 4-5. This explanation is ,

unsatisfactory. Regardless of whether additional resources would  ;

respond on a "best efforts" basis, Sectica J.12 requires that all arriving EPZ residents and transients be monitored within about 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. Nowhere in NUREG 0654 is there an exception to the 12-hour time period such as Mr. Kantor advocates. Eee Tr. 19202-03 (Kantor).

24/ We recognize that the 12-hour time limit is not absolute, but allows for some limited flexibility. Tr. 18390-91 (Keller)u 21/ The question arose during the hearing as to when Section J.12's 12-hour time limit begins to run. In the opinion of most

! LILCO witnesses, the period begins to run when the first cacuee l arrives at a reception center. LILCO Ex. 1 (Crocker et ), at l 7; Tr. 17742-43 (Watts). FEMA concurred with this interpretation. Tr. 18461 (Husar). One LILCO witness, (footnote continued)

L-___________-. ._

I h; ,

5 State Acplysis and'_Poliet

72. The State's witnesses, all professional' emergency.

planners employed by REPG,.testiffed that Section J.12 must.be L read 1 prudently to'tequire planning for monitoring 100% of the EPZ population; Tr. 18166-67 '(Czech); NY Ex. 1. (Papile et al.), at l: 7c They noted that nothing in Section J.12 suggests that a plan need only. provide personnel and equipment for 20%, 30%, or some other fraction of the EPZ population. Indeed, NUREG 0654 requires planning for a spectrum of accidents, r.ot just accidents affecting only 20% or 30% of the population. Because some severe accidents within the spectrum could require most, or even all, of the EPZ population to be monitored, they believe that planning

' for monitoring 100% of the EPZ population is required to deal with the spectrum of accidents which are the basis for NUREG (footnote continued from previous page)

Mr. Donaldson, expressed the opinion that the 12-hour time period begins to run when the public is first ordered to evacuate.

Tr. 17434 (Donaldson).

The weight of the evidence indicates that it is most i reasonable to interpret Section J.12 to mean that the 12-hour l limit begins to run when the first evacuee arrives at a reception center. We are concerned, however, with LILCO's testimony that I the first evacuee will not arrive until two hours after the public is advised to evacuate. LILCO Ex. 1 (Crocker et al.), at 7.. The basis for LILCO's two-hour time lag in the beginning of the 12-hour period is a set of calculations conducted by J l - Mr. Leiberman. It is evident from Mr. Lieberman's testimony that 'I his calculations are based Gn travel times under the congested conditions that will prevail once an evacuation is well underway.

Egg id.; Tr. 18649 (Lieberman). Nevertheless, those evacuees who mobilize early could travel to the reception centers ahead of the congestion in a little over one hour. Tr. 18648-49 (Lieberman).

The significance of this difference in lead time is that LILCO I han only half the time it apparently assumes it has to staff and activate its reception centers.

4 L I

i l

CG54. See NY Ex. 1 (Papile et al.), at 8. As noted above, l j

LILCO's own performance during the 1986 exercise, which, l

4 according to FEMA, did not involve a particularly severe accident, bears this out.

l

73. The State witnesses' interpretation of Section J.12 is )

1 particularly convincing because they documented that a 100% plan-ning basis has been implemented in practice.26/ Aside from Shoreham, there are three other nuclear power plant s!.tes in the

. State of New York: Ginna, Nine Mile Point /Fitzpatrick, and Indian Point. Emergency planning personnel in the counties responsible for responding to emergencies at the three sites have 26/ LILCO suggests that there is little or no difference between

, the LILCO Plan and State policy based on certain quoted testimony l from a State witness, Mr. Papile. See LILCO Proposed Findings, i at 24; Tr. 18238-39 (Papile). Mr. Papile's testimony Dupports no such conclusion. Rather, his testimony, fairly read, states that at the time monitoring commences, it is not necessary that all availabic monitors be on hand. Nevertheless, they must be able to arrive in a timely manner to assure that 100S of the EPZ population is monitored within the 12-hour limit of Section J.12.

Sgg Tr. 18238-39 (Papile). Mr. Papile made it plain that this capability must be reflected in a plan. Tr. 18239 (Papile). The Governments' position is that LILCO's Plan does not even approach this standard. While LILCO intends to call on INPO and Brookhaven National Laboratories if the number of evacuees exceeds 30% of the EPZ population, there is no evidence that sufficient non-LILCO resources will be available so that 100% of the EPZ population can be monitored, using appropriate procedures, within about 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. The only hard evidence presented by LILCO is that 88 monitors would supposedly be available from INPO sithin six hours of a request to INPO for monitoring assistance. See Section II.D, below. This number is plainly not surficient for the task, especially since more monitors will be required than LILCO assumes in light of LILCO's flawed monitoring procedures. See Sections III.B.2 and III.C, below. The fact that some additional monitors will be available by l? hours (see Section II.D, below) does little good since, as we hold below, LILCO must demonstrate an ability to monitor 100%

of the population within about 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />.

t _ .- .__ _ _ _ _ _ _ _ _ _____--_----____--_d

certified to FEMA that, as of March 31, 1987, there are suffi-cient numbers of trained monitoring personnel in the counties to monitor over 100% of the EPZ populations at the Ginna and Nine Mile Point /Fitzpatrick sites. Tr. 2.0072-75, 18216 (Czech).21/

The policy has not been met at Indian Point, but efforts are continuing to meet the policy, especially in Rockland County.

Tr. 18067-72 (Czech); Tr. 18247-48 (Baranski).28/

21/- The State's witnesses assume it takes 2-3 minutes to monitor an individual. . Using 2.5 minutes as an average, 169 monitors will be needed to monitor the Nine Mile Point /Fitzpatrick EPZ .

population of 48,765 people in.12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />; 575 monitors are I available. Tr. 18072-73 (Czech).

The portion of the Ginna EPZ in Wayne County has a population of 23,072. Using the same assumptions as above, approximately 80 monitors would be required to service that population in'about 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. Wayne County has reported that there are 91 monitors trained and available. Tr. 18073-74 (Czech)..

The portion of the Ginna EPZ located in Monroe County has a population of 31,870. Using the same assumptions as above, 111  ;

monitors are' required to monitor the entire population in about i

-12 hours. Monroe County reports that 140 monitors have been trained and are available to perform such tasks. Tr. 18074-75 (Czech).

These facts demonstrate that LILCO has mischaracterized the record by its assertion that the State's policy is met nowhere in the State. See LILCO Proposed Findings, at 24.

28/ The Indian Point EPZ has a population totalling 257,332 people. Assuming that it takes 2.5 minutes to monitor each person, 893 monitors are required te Lionitor the entire EPZ population in about 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. While there are sufficient monitoring instruments available, the information provided by the counties in the Indian Point EPZ as of March 31, 1987, indicates that there are between 550 and SS5 available monitors.

Tr. 18067-72 (Papile, Czech). FEMA has found P.he Rockland County emergency plan to be deficient because of insufficient monitors.

SC Ex. 17. We note, however, that even for Indian Point the data indicate a capability to monitor more than 60% of tne CPZ population, an amount far in excess of LILCO's capability.

l8

1 74.: Both' FEMA and LILCO offered evidence attempting to

. undercut the State's assertion that it adhered to a 100% planning basis policy.29/ For instance, Mr. Keller stated that it was his understanding that the counties having responsibility for the Nine Mile Point /Fitzpatrick EPZ could. monitor only 35 to 40% of

- the EPZ populations He similarly testified that he understood there to be a less than 100%' monitoring capability in the counties responsible for the Ginna BPZ. Under cross-examination,

'however, Mr. Keller admitted that certain State-trained resources avaiiau]e withi<n those counties were not included in those figures. Therefore, we cannot accept Mr. Keller's testimony

-because'it did not account for all resources which the counties l have certified are available to conduct monitoring at their reception centers. Egg'Tr. 18381, 13482-83 (Keller).

75. In'a similar effort to undercut the State's testimony regarding its policy, LILCO offered into evidence a letter dated March 12, 1982, from a REPG employee to certain Rockland County, 22/ Indeed, LILCO's Proposed Findings gc so far as to suggest as a " fair inference" that the State's policy was manufactured to impede a Shoreham operating license. LILCO Proposed Findings, at 23 n.25. We find this assertion lacking in any foundation; it is

. hardly e. " fair inference." As noted above, the evidence demonstrates that the State's policy is met at all New York plants except Indian Point. LILCO Proposed Findings, at 23-24, ignore completely the number of trained personnel which the counties have certified are available to implement their plans.

Reg above. .The fact that the State's policy is actually implemented refutes LILCO's argument and belies Mr. Husar i s

. hearsay testimony that unspecified ccunties were " surprised"

'about the State'c policy. See Tr. 18455-56 (Husar).

Furthermore, the evidence demonstrates that tnere was no need tc inform FEMA " formal 3y" of this policy, for the REPG witnesses  :

testified that their policy was based on actual FEMA practice and communication between FEMA and ' MPG. Sgg below.

l-o

l New York, school officials. The letter stated, in essence, that the maximum number of people which could be expected at reception centers would be about 30% of the EPZ population. Egg

'T r . 18124-28 (Papile); LILCO Ex. 23, at 2.

\

l 1

76. The State panel testified, however, that they do not l a

agree with the opinion expressed by the writer and that they were i not aware of the letter before the discovery phase of this proceeding. The opinion of the writer did not reflect State policy in 1982, when it was written, and it is not policy now.  !

Tr. 18124-28 (Papile); Tr. 18187 (Baranski); see LILCO Ex. 23.

LILCO in"roduced no other such letters as evidence. We conclude that the State's witnesses know best what the State's policy is and that the letter is an aberration.

77. The State's witnesses also t'astified that the State's policy regarding 100% monitoring capability is founded in part on comments received from FEMA personnel in the past and is consis-tent with FEMA practice. NY Ex. 1 (Papile et al.), at 7-8. For instance, they cited a comment from a 1986 RAC review of the i Rockland County emergency plan in which FEMA found Section J.,12 not to be satisfied because Rockland County did not have persennel sufficient to monitor 100% of the Rockland Cou"ty portic% of the Indian Point EP3 Tr. 18148 (Papile); Tr. 18179-86 (Czech); sgg SC Ex. 17.32/ Likewise, Mr. Keller previously 2S/ There was dis ute over whether the Rockland County plan (footnote continued) 1

commented to the State witnesses that FEMA had found monitoring services at the reception center of another plant to be deficient because there was no capability to monitor 100% of the EPZ

. population. See Tr. 18373-74, 18449 (Keller).31/

78. Based on the foregoing facts and arguments, we find first that the Krimm Memorandum, on which LILCO, FEMA and the NRC Staff place heavy reliance, provides no persuasive support for LILCO's planning basis. Likewise, the additional testimony pre-sented by LILCO and the NRC Staff on the intent behind Section J.12 is of little use and unsupported by evidence, We are more persuaded by the testimony of the State's witnesses who stated that it is most prudent to require planning for monitoring 100%

of the EPZ population at reception centers. That interpretation

,is supported by the Commission's San onofre decision.

Nevertheless, before we reject LILCO's planning basis, we will ,

)

(footnote continued from previous page) 1 actually called for monitoring 100% of the Rockland County EPZ )

populaticn and whether FEMA found the plan deficient because it J applied that standard. Apparently, if a plan or State policy j establishes a standard higher than FEMA's, FEMA will evaluate the )

plan against that higher standard. Tr. 18443, 18457, 18473-75 '

(Keller, Husar). That controversy was not resolved to our satisfaction, but it is not necessary to our decision. ,

J 31/ Mr. Keller speculated that FEMA must have subsequently I

changed its mind because he was not aware that a remedial exercise was required. Tr. 18373-74, 18449 (Keller). Whether l

, this speculation is true or not, the fact remains that Section J.12 has been interpreted by FEMA differently than the Krimm Memorandum suggests.

1 1

first discuss analyses conducted by some of the parties regarding the likely impact of an tecident at Shoreham from both technical and behavioral perspectives.

C. The Imoact of 7.n Accident

1. LILCO Testimony on Accident Release Characteristics an_d Plume Dispersal

79. LILCO's witnesses testified that the likely release characteristics and consequences of an accident justify the FEMA guidance of a 20% planning basis (and thus support LILCO's planning basis). LILCO Ex. 1 (Crocker et al.), at 10-11. In particular, they stated that a 20t planning basis is appropriate because the extremely low likelihood of a particulate release and the like3y benefit of the protective action recommendations mean that only those people requiring congregate care should be 1

expected at the reception centers. LILCO Ex. 1 (Crocker et al.), -

j at 11,

80. We reject that aroument because it misinterprets NAC guidance, as well as the emergency planning principles and data on which that guidance is based. Both NUREG 0396 and NUREG 0654 emphasize that adequate emergency planning rests on a capability to respond to a spectrum of accidents which could result in off- l site doses in excess of Protective Action Guides. NUREG 0634, at l 5-7; SC Ex. 13 (Cole et al.), at 52. As the LILCO witnesses

acknowledged, the spectrum of accidents considered by the NRC in establishing the planning basis explicitly included the core melt accident release categories in the Reactor Safety Study (WASH- l 1400), a number of which were projected to result in the potential release of large amounts of radioactive particulate.

Sgg NUREG 0654, at 7; Tr. 17406-88 (Donaldson); SC Ex. 13 (Cole et al.), at 52. Similarly, the NRC stated in the San Onofre decision that under the NRC's rules, one must presume "that offsite individuals may become contaminated with radioactive material gn may be exposed to dangerous levels of radiation or perhaps both." 17 HRC at 533 (emphasis in original).

Accordingly, it is clear that LILCO nust plan for core melt accident release categories which result in the potential release of large amoynts of radioactive particulate.32/

l 32/ LILCO ap! ears to argue that accidents invviving only gaseous releases shouAd b:e the basis fot' its planning efforts. However, accidents involving only gaseous releases are at the extreme low end of a spectrum of possible releases, most of which involve some level of particulate release. SC Ex. 13 (Cole et al.), at

53. _Indeed, LILCO's own probabilistic risk assessment of Shoreham apd NUREG 0956 and NUREG 1150 have identified a range of accidents which can result in the release of fractions of 1% or greater of the core inventory of patticulates, which may. amount to millions of curies of particulate radio &ctive material. Id.,

at 52.

In addition, LILCO cites no studies or analyses to support its argument that in an accident, contamination is unlikely. In addition to conflicting with che San Onofre decision, this argument ignores recent research showing that radiological releases, including particulate releases, are likely to continue for many hours after the initial " puff" release that is typically associated with.a reactor vessel breach or a containment failure.

SC Ex. 13 (Cole et al.), at 54. Such phenomena can result in release durations of many hours, resulting in a greater likelihood of contamination.

I 1

1 1

L i 81. LILCO also suggests that its planning basis is adequate 1

because a plume released during an accident is unlikely to affect l more than three compass sectors, or only 67 1/2 degrees of the EPZ. LILCO Ex. 1 (Crocker et al.), at 9; Tr. 17458 (Watts).

! This testimony has two flaws. First, LILCO's argument is belied by the data which show that in the event of a Shoreham accident, it is very likely that a wind shift will occur, resulting in plume dispersal over more than three compass sectors.13/ Such wind shifts could easily double the number of sectors potentially affected. SC Ex. 13 (Cole et al.), at 55.

82. Moreover, even if a plume disperses over only three compass sectors of the Shoreham EPL, the vast majority of the EPZ population could be affected. For example, as LILCO witness Watts acknowledged, the EPZ subzones located in the three compass sectors radiating to the west from the plant contain about 109,209 people, or roughly 76% of the EPZ population.

Tr. 17458-68 (Watts); SC Exs. 1-3. Thus, even if one assumes that only three compass sectors will be in the path of the plume, 33/ LILCO's Environmental Report for Shoreham indicates that winde are persistent in one direction for periods of six hours or longer only about 14% of the time. SC Ex. 13 (Cole et al.), at

54. In other words, in a six hour period, there is an 86% chance that the wind will change direction. Tr. 17941-42 (Minor).

Given the potential for long release durations in severe accidents, it is very likely that at least one wind direction L

change will occur during an accident. SC Ex. 13 (Cole et al.),

at 54. Such wind direction changes will expand the areas poten-tially contaminated in the event of a severe accident at Shoreham to include more than the three adjoining compass sectors postula-

} ted in the LILCO Testimony. SC Ex. 13 (Cole et al.), at 55.

the' Plan must account for the. fact that 76% of the EPZ population-may be contaminated, far more than LILCO's.30% planning basis

, assumes or the 46.6% LILCO claims it can actually handle.31/

83. Finally, we note once again that LILCO's arguments are undercut by-the February 1986 exercise.- That accident scenario l involved the release of a relatively low level of part.iculates.

l Eee Tr. 18414 (Keller); Tr. 17471 (Watts). Nevertheless, the exercise resulted in 95,000 people being advised to report to the reception centers for monitoring. NY Ex. 1 (Papile et al.), at 8-9; Tr. 19204 (Kantor).

2. The Hulman Analysis

84. ' Lewis G. Hulman, testifying on behalf of the NRC Staff,

. presented an estimate of the conditional probability of the num-l ber of people within the EPZ who could be within the path of a plume released during a Shoreham accident. In preparing his so-called " footprint assessment," Mr. Hulman analyzed three sets of calculations which he labeled as " Cases" 1 through 3. NRC Staff Ex. 5 (Hulman), at 5-7. Based on his calculations, Mr. Hulman concluded that a 20% planning basis would be a " conservative" 31/ Another important geographic consideration is that the reception centers at which LILCO proposes to perform monitoring activities are all located west of the EPZ. Thus, evacuees from the eastern half of the EPZ may travel through contaminated areas on their way to the reception centers. This factor will increase the number of vehicles and persons which could be contaminated and therefore should be monitored at the reception centers. SC Ex. 13 (Cnle et al.), at 55.

l

estimate of the number of people who might be within a plume because 90% of the time, less than 20% of the EPZ population would be affected. Id., at 9.

85. We find, however, that Mr. Hulman's calculations are of little help in establishing a planning basis. First, assessing the plume " footprint" does not in any way account for behavioral factors such as the monitoring shadow or evacuation shadow, which will increase the number of people actually arriving at LILCO's reception centers.35/ Tr. 19198-99 (Kantor, Hulman).

Mr. Hulman's analysis addresses only the number of people who may actually need monitoring, not the much larger number who might seek monitoring anyway. Eee Section II.C.3, below.

86. In addition, Mr. Hulman's calculations rest on unreal-istic assumptions which invalidate his results. Specifically, we find three general flaws in Mr. Hulman's analyses. First, Mr. Hulman uses a straight-line Gaussian model which fails to account for the fact that wind shift is likely during any Shoreham accident. Tr. 19200 (Hulman); SC Ex. 14 (Minor and Sholly), at 4-5.31/ Second, Mr. Hulman's analysis fails to 35/ The LILCO Plan provides no way of distinguishing between EPZ and non-EPZ evacuees at the reception centers. LILCO intends to monitor all arriving evacuees, regardless of their origin.

Tr. 17491-92 (Crocker, Dreikorn).

31/ As we discussed above, winds in the Shoreham vicinity are persistent in one direction for periods of six hours or longer only about 14% of the time. SC Ex. 14 (Minor and Sholly), at 5; Tr. 17941-42 (Minor). There is, therefore, a substantial chance (footnote continued) '

i 1

1

account-for precipitation.- SC Ex. 14 (Minor'and Sholly), at15; Tr'.-19200-(Hulman). Precipitation must be considered because it has an impact on dose levels at different distances from the plant and coul'd therefore increase the numbers of people who are exposed. SC'Ex. 14 (Minor and Sholly), at 5; Tr. 17943-44

'(Minor).

87. Third, the Hulman analysis fails to include considera-tion of scenarios involving evacuation during a release. Such scenarios are significant because, as Mr. Hulman admits, (footnote continued from previous page) of one or more wind direction changes over any given six-hour period, an event which could greatly increase the number of people exposed to'the plume. SC Ex. 14 (Minor and Sholly), at 5.

Although there are computer codes which account for wind direction changes during an accident, Mr. Hulman did not utilize them in his analysis. Tr. 19200, 19226-27 (Hulman). Instead, Mr. Hulman suggested that he compensated.for the failure to include wind shifts in the footprint analysis by: (1) including within the exposed population all those within two miles of the plant, and (2) ignoring emergency response. NRC Staff Ex. 5 (Hulman), at 8. No basis is provided for this assertion; further, we find these two factors do not compensate for failure to include wind shifts. The population within two miles of the plant is only 6% of the total EPZ population; thus, adding this population provides little or no conservatism to the calculations. SC Ex. 14 (Minor and Sholly), at 9. Moreover, wind shifts are likely to occur outside the two mile zone; the vast majority (94%) of the population resides outside that small area. Id. Similarly, the failure to account for emergency response is not a source of conservatism, because emergency response could potentially increase the number of people exposed to the plume. Tr. 17946 (Sholly). Indeed, NRC witness Hulman I

admitted that under certain conditions, emergency response could increase the members of the public exposed to contamination.

Tr. 19228-29 (Hulman). In particular, the number of people exposed increases if the wind shifts the plume over the evacuation route or if the wind shifts erratically. Id.

L- __ _ _ _ _ _ _ __

evacuation could increase the number of people potentially contaminated by the plume. Tr. 19228-29 (Hulman); SC Ex. 14 (Minor and Sholly), at 5-6.31/

88. Finally, we do not accept Mr, Hulman's argument that his analysis is " conservative" on the bases that his results support a 20% planning basis 90% of the time. No evidence was presented as to why we should do so. A truly conservative criterion of 95-98% could more than double the number of people requiring monitoring. SC Ex. 14 (Minor and Sholly), at 6; see NRC Ex. 5 (Hulman)s at Fig. 2.3g/

31/ Aside from these general flaws, additional flaws appear in some of the individual cases Mr. Hulman analyzed. For instance, in Case No. 1, Mr. Hulman assumed a narrowed plume which moves in.

a straight line and never achieves more than 3,000 meters in width even as it moves out to a 10 mile distance. NRC Staff Ex. 5 (Hulman), at 5, 7; SC Ex. 14 (Minor and Sholly), at 6-7.

The failure to account for plume expansion makes this scenario highly unrealistic. SC Ex. 14 (Minor and Sholly), at 6.

In his written testimony, Mr. Hulman contended that Case No. 1 is conservative because a narrow plume concentrates the potential exposure and therefore increases the dose which people ,

would receive. NRC Staff Ex. 5 (Hulman), at 5. However, an analysis of dosage is irrelevant to assessing the likely number of people who would be exposed to the plume. SC Ex. 14 (Minor and Sholly), at 7; sgg also Tr. 19213 (Hulman). Mr. Hulman also testified that Case No. 1 is conservative because he added to his weighted population assumptions the " number of people out to 2 .

miles in all directions not under the plume." NRC Staff Ex. 5 l (Hulman), at 6. As already noted, this adds little conservatism, because the people within the two-mile EPZ represent only 6% of the 1G-mile EPZ population. SC Ex. 14 (Minor and Sholly ), at 7.

I 31/ We cannot give weight to LILCO's vague intentions to build a secondary containment, which LILCO attempted to introduce into the record through the County's witness, Mr. Minor. Egg Tr. 17925-26. Such vague information, which Mr. Minor could not confirm, certainly does not support LILCO's argument that Mr. Hulman's analysis should be accepted because of this non-(footnote continued) 1 l

l i

l i

3. The Monitorino Shadow

a. Definition

89. A persuasive analysis of the number of people likely to seek monitoring was conducted by the County's witnesses who eval-uated the effects of the " monitoring shadow." In the event of a radiological emergency at Shoreham, it is likely that some por-tion of the population, both inside and outside the EPZ, may travel to LILCO's reception centers even though not advised to do so. NY Ex. 1 (Papile et al.), at 9; SC Ex. 13 (Cole et al.), at 13-18. This voluntary reporting of persons to the reception centers by members of the public who have not been advised to do so has been dubbed the " monitoring shadow."39/

l

90. None of the parties disputed the existence of the moni-toring shadow. For instance, Mr. Kantor of the NRC Staff agreed that there is reason to believe that people who might not have been exposed or contaminated might, for various reasons, report to a reception center seeking to be monitored. However, the NRC (footnote continued from previous page) existing feature. See LILCO Proposed Findings, at 19 n.16. At any rate, LILCO does not suggest that the secondary containment is a conditions of licensing. Thus, we properly must ignore it.

39/ There is a difference between the monitoring shadow and the evacuation shadow. Tr. 17933-34 (Cole, Johnson, Saegert). The former pertains to behavior intended to determine whether one has come into contact with a disaster agent. The latter describes evacuation behavior. See LILCO Ex. 1 (Crocker et al.), at 12-

13. The two behaviors, however, have similar roots. SC Ex. 13 (Cole et al.), at 27.

V N 3

Staff has conducted no analysis of the number'of people inside or outnide thJ EPT, who night be conce'rned about dentamination, even thcugh they were not, contaminated. Tc. 19198 (Kantor).

91. .Likewise, the FEMA witnesses agreed that there would be a monitoring shadow, but declined to estimate its magnitude.

Tr. 18330-31 (Keller, Baldwin, Husar.). LILCO took the position that the monitoring shadow c6n largely be controlled by the dis-seminatiert of good emergency' inf ormation. See LILCO Ex. 1 l

l (Crocker et al.), at 14, 19,.2.5-26.

l L '

02. The State's witnesses did not attempt to quantify the monitoring shadow, but cited it as a factor justifying their 100%

planning basis. NY Ex. 1 (Papile et al.), at 9. The County's

' witnesses, however, did attempt to quantify the menitoring shadow.

O, 7,he County's Surggy 93s In order to. determine how Long Island residents both inside' and outside of %e EPZ uould respond to a Is1LCO advisory t'o.onek monitoring at reception centers, one of the County's witnesses, Dr. Stephen Cole, conducted a survey among a random sanple of the L;ng Island population.dO/

AS/ Tne methodology of the survey is set forth in detail in Suffolk County's testimony and the report attached thereto.

SC Ex. 13 (Cole et al.), at 13-16 and Att. 8. He find that the methodology conforms with ncrmal survey practice.

3

94. - The survey asked the 1,500 respondents how they would respond to a series of'EBS messages which were actually used by LILCO'during its February, 1986, exercise to " inform" the public of the escalating. nature of an' accident at Shoreham and the protective actions which they should take. One of the questions, drawn directly from one of the messages LILCO issued during the Exercise, was the following:

If at 1:45 p.m. you heard on the radio a LILCO representative say that certain people living within ten miles of Shoreham may have been exposed to radiation during their trip out of the evacuation zone and should go to a speci-fic location in Nassau County to be monitored for possible radioactive contamination, would you: -(l) go to the specific location in Nassau to see if you had been contaminated with radiation; or (2) ga somewhere else to have your radiation level checked; or (3) would not bother to have your radiation level checked?

SC Ex. 13 (Cole et al.), at 16 and Att. 8, at 56;i1/ see l Tr. 17819-20 (Cole); LILCO Ex. 12, at 3-4 (Message 8.1).

95, The results revealed that 50% of all Long Island house-holds said that they would go to the specific center, 32% said l

that they would have their radiation level checked somewhere else, 13% said that they would not bcther to have their level

$1/ In their pre-filed testimony, the Governments appended certain attachments which were preferred to as " Exhibits" to the testimony. In order to avoid confusion with the exhibits introduced during the hearing, we will refer to the " Exhibits" appended to the Governments' pre-filed testimony as " Attachments" and will cite them as "Att. .

i

4 checked, andL5% were unable to answer this question. Fifty per-

, cent of_the' population of Long Island represents more than 1.3-million oeoole. This indicates that a very large monitoring shidow is likely'in_the event of a Shoreham accident. Dr. Cole emphasized that it is not the County's position that in the event of'a Shoreham emergency 1.3 million people will. seek monitoring.

Surveys are not that precise. Surveys are useful, however, to estimate the ' approximate magnitude of the public's response to- a monitoring advisory. Here, the data show that many times more people will arrive at LILCO's reception centers than LILCO assumes. Eeg SC Ex. 13 (Cole et al.), at 16-17.

c. LILCO Criticism of the County's Survev (i) Usefulness of Surveys

96. LILCO witnesses'Drs. Mileti and Lindell criticized Dr. Cole's survey and the methodology employed. LILCO Ex. 1 (Crocker et al.), at 13-17. First, they argued, as LILCO has argued in prior hearings regarding other County surveys, that surveys are poor tools to measure future emergency behavior because at the time of an accident, people will act on the infor-l- .mation _ they receive at the tirae of the emergency, not on belief s i

l or fears which were formed prior to the emergency. Egg LILCO I

Ex. 1 (Crocker et al.), at 15; Tr. 17772 (Lindell); LILCO Proposed' Findings, at 27. Even assuming this argument were true,  ;

i l

which is dubious (seg Section II.C.3.e, above), we note that here, unlike the County survey discussed in our previous PID, the messages used in the survey questionnaire closely approximated messages actually prepared and issued by LILCO during its .

February, 1986, exercise. Thus, the survey respondents received the very type of information LILCO intends to disseminate in an emergency. Egg Tr. 17818-19 (Cole); LILCO Ex. 4, at 3807-50 (Cole); LILCO Ex. 12, at 3-4 (Message 8.1).

97. LILCO also argues that surveys are not good predictors

of future behavior because the behavioral intentions elicited in l

l a survey may not necessarily be acted upon in the future. See LILCO Ex. 1 (Crocker et al.), at 15, 19. Behavioral intentions are good predictors of future behavior unless something occurs to change those intentions before the time comes to act. LILCO Ex. 8, at 50; Tr. 17854 (Johnson). The question is, how stable are the behavioral intentions expressed by the respondents to the survey and how likely are they to change prior to an accident?

The County's witnesses offered convincing testimony that exten-sive research shows that the public's attitudes toward nuclear power, and the public's fear of radiation, are very stable. This in turn, demonstrates that the behavioral intentions expressed in the survey are likely to be acted upon in the event of a Shoreham emergency. Tr. 17854-59 (Johnson, Saegert); Tr. 17866-87 (Johnson); Tr. 17953 (Cole).dl/ Indeed, to the extent that there il/ To buttress its argument that analyses of behavioral (footnote continued)

have been intervening events which may change intentions, those events (such as the Chernobyl accident) tend to make people more likely to evacuate, rather than less likely. Tr. 17866-67 (Johnson).

98. We also note that the Appeal Board in this case and in others has held that survey data are valid, relevant, and persua-l sive evidence concerning how people will behave in response to a radiological emergency. Seg, e.o., ALAB-832, 23 NRC at 153; Philadelphia Electric Cc. (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 517-20 (1986); Cincinnati Gas &

Electric Company (Wm. H. Zimmer Nuclear Power Station, Unit No. 1), ALAB-727, 17 NRC 760, 772 (1983).

(footnote continued from previous page) intentions are not good predictors of actual future behavior, LILCO offered into evidence portions of two publications by Fishbein and Ajzen to support the proposition that the longer the time interval between the measurements of intention and the observation of behavior, the greater the probability that an individual will obtain new information, or that certain events will occur, which will change his or her intentions. Thus, the longer the time interval, the lower the correlation between intention and behavior. See LILCO Exs. 7, 8. Drs. Johnson and Saegert, however, demonstrated that with respect to intentions regarding a nuclear accident, the consistency of the many analyses conducted in the past five years demonstrates that attitudes have remained stable over time and that therefore attitudes can be good predictors of behavior. Tr. 17854-59 (Johnson, Saegert). In addition, Fishbein and Ajzen have done other work that focused specifically on nuclear reactor accidents and their conclusions in this other work are consistent with Dr. Johnson's testimony. Tr. 17861 (Johnson).

Ir

1

99. LILCO's argument that surveys cannot be used to. draw 1 I

conclusions about future behavior is also undercut by the work of l

its own witness, Dr. Lindell. Suffolk County's witnesses  !

i testified that Dr. Lindell has used surveys like the County's from j which he has drawn certain conclusions about future behavior.- See SC Ex. 13 (Cole et al.), at 20-25, 44. In particular, they cite an' article authored by Dr. Lindell which appeared in late 1986 in the journal Ngclear Safety and which is inconsistent with his testimony in this ptaceeding. Eeg LILCO Ex. 6.

100. Dr. Lindell responded in rebuttal testimony that while 1

he has used surveys to study binavioral intentions, he did not collect behavioral intentions data to estimate the number of people who would evacuate in a real emergency.43/ Rather, his purpose was to identify characteristics that the public might use to assess the degree of risk from a hazard. LILCO Ex. 50 (Lindell Rebuttal), at 1-2. He did not, he asserts, draw conclusions about future behavior. Id. We find, however, that it is quite plain from reading the article that Dr. Lindell has, in fact, drawn 13/ In the face of the several contradictions between Dr. Lindell's testimony and his Nuclear Safety article, we l granted LILCO's motion to permit Dr. Lindell to file rebuttal I

testimony. That testimony was filed on July 24, close to the end of this proceeding. See cenerally LILCO Ex. 50 (Lindell Rebuttal).

l conclusions about how people will react in future emergencies based on the results of surveys he has conducted. Eee LILCO Ex. 6, at 466.11/

(ii) Methodoloav 101. Drs. Lindell and Mileti also criticized some of the i methodology employed by Dr. Cole in his survey. For instr 7ce, they point to certain alleged bias in the wording of the ques-tions in the survey and the fact that the questions made only i 1

personal safety salient without focusing on other factors such as l

44/ For instance, Dr. Lindell states in his Nuclear Safety article that:

Thus, the establishment of measures to ensure consistency in the information released about an accident addresses only a part of the problem. Moreover, these data indicate that the problem of overresponse is not peculiar to radiation hazard but may be exhibited in regard to hazardous materials' accidents as well.

LILCO Ex. 6, at 466. This passages refers to future behavior, not only to intentions.

Likewise, Dr. Lindell states that:

The gap between accurate information and the achievement of compliance with recommended actions should be recognized as a large one.

Persons must attend to, comprehend, yield to and retain information before they can act on it. The yielding is likely to occur only if the source of information is considered credible.

Id. This statement does not pertain merely to an analysis of intentions, but also makes a statement about whether " yielding" will occur at the time of an emergency.

l l l t 1 i

- protection of property. We find, however, that Dr. Cole convinc-ingly argued that these criticisms are baseless. See SC Ex. 13 (Cole et al.), at 22-23. There is strong evidence that the results obtained in the December, 1986 survey were not elicited by suggestive wording or any other type of bias. The same sub-stantive results have been obtained by many different surveye, on behalf of different parties, with many different wording patterns. The consistency of these results refutes allegations that the County's survey was biased or flawed in any significant way. M., at 19-20.11/  !

102. While not raised directly by LILCO's witnesses, LILCO also attempted to suggest on cross-examination of Dr. Cole that his results could be biased because the questionnaire he used did not reflect LILCO's EBS messages precisely at:; written. Eee LILCO Ex. 4. We find this point to have no merit.

103. The questions used in Dr. Cole's survey closely follow the actual EBS messages simulated in LILCO's February, 1986 Exercise. However, to make the survey more intelligible, 11/ The Board asked Dr. Cole whether the results of his survey ,

could be biased because respondents may have perceived that their {

answers would have an impact on the licensing of Shoreham and, j therefore, tailored their answers to achieve the outcome they desired. Tr. 17959-60 (Kline). Dr. Cole convinced us that our concern was unfounded. This is demonstrated by the fact that prior surveys were taken long before the public had any idea about the Shoreham litigation or how such surveys might affect the licensing process. Those surveys show the same magnitude of response as surveys taken later. Therefore, there is no reason i to believe that answers to surveys have been tailored by the i respondents to produce a particular outcome. Tr. 17960 (Cole). l

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%%-_--_________.-_ m

Dr. Cole eliminated certain material from the EBS messages which

{

l was either confusing, contradictory, unnecessary, or repetitious.. 4 It was necessary to delete this material in order to shorten the survey questions because the EBS messages themselves are unwieldy.

1 and cannot easily be read over the phone. Tr. 17818-19 (Cole); j i

see_ LILCO Ex. 4, at 3807-50; LILCO Ex. 12, at 3-4 (Message 8.1).55/

d. The Cause of the Monitorina Shadow i

104. It is well established in our record, and in the emer-gency planning literature, that the public fears radiation. See 4

Tr. 17983 (Kline); SC Ex. 13 (Cole et al.), at 26-27; LILCO Ex. 6, at 464; Tr. 17849 (Saegert). As a result of that fear, the public is likely to take measures to determine whether they have been exposed to radiation and will seek out facilities which will enable them to make that determination. Large numbers of people, acting on their concerne, will attempt to be monitored even though not advised to do so. SC Exs 13 (Cole et al.), at 26, 29.

15/ Deleting the information from the messages did not bias. the p responses of the respondents. If anything, by eliminating

} material which was confusing, contradictory, repetitious, or I unnecessary, Dr. Cole reduced those factors (e.o., confusing or contradictory information) which would be likely to increase overresponse. See LILCO Ex. 4, at 3859.

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105. The County's testimony that fear of radiation is the l

L driving force behind the monitoring shadow is supported by 1

Dr, Lindell. He has written that pre-existing attitudes toward a hazard -- in this case, radiation -- are an important cause of overresponse or evacuation shadow. Egg LILCO Ex. 6, at 466.

Experience in the public health field also supports the conclu-sion that a monitoring shadow will result from t.he public's fear of radiation. SC Ex. 13 (Cole et al.), at'28-29.dl/ ,

106. The existence on Long Island of the monitoring shadow l and the fear which drives it are confirmed by the results of 1

l group interviews, commonly known as " focus groups," conducted with residents of Suffolk County by Dr. Cole.AS/ An analysis of the transcripts of the focus groupsil/ confirms that Long Isjand residents have a deep-seated fear of being exposed to radiation 11/ For example, the groups principally at risk of acquiring AIDS are well defined; however, as AIDS has received increased media attention, requests for AIDS testing by persons outside these risk groups have become fairly common, even where such persons have no objectice reason to believe they have contracted AIDS, and despite the availability of AIDS-related educational materials and programs. The same hyper-vigilant behavior can be expected if the public has been advised that radiation has been released into the atmosphere. SC Ex. 13 (Cole et al.), at 28-29. i AE/ Focus group interviews are an accepted technique that can add a great deal of qualitative insigPt into the results of survey questions. See LILCO Ex. 4, at 3941; Tr. 17824-25 (Cole), a The methodology used in the focus groups is described in the l County's testimony. SC Ex. 13 (Cole et al.), at 31-33. j i

12/ The focus group tapes were transcribed twice because there j were some errors in the first transcription. However, the errors were not substantive and the corrections did not alter in any way Dr. Cole's opinions regarding the focus groups and the conclusions to be drawn from them. See LILCO Ex. 4, at 3913-14 3933; SC Ex. 13 (Cole et al.), at 31.

i released during an accident at Shoreham. SC Ex. 13 (Cole et al.), at 33-36.}0/ Acting in accordance with their beliefs, such individuals will seek monitoring to determine whether they l

have been exposed to radiation. Id., at 35-36. Research shows l that the recent Chernobyl accident has also heightened the l

l public's fear of radiation and will have an effect on the public's perception of risk during an accident. Id., at 36-38; see also Tr. 18469-70 (Baldwin).11/

107. In an effort to rebut the County's evidence that fear will influence people's responses to a radiological emergency, LILCO witness Dr. Mileti offered certain "real life experiences" with radiation designed presumably to demonstrate that fear is not as strong a motivating force as the County's witnesses contend. We find these "real life experiences" to be trivial and essentially irrelevant to the matter at hand. For instance, Dr. Mileti cites certain data regarding tourist activities in Las 10/ Drs. Lindell and Mileti claimed that the focus groups do not provide insight into possible behavior in the future because, just as surveys, focus groups cannot be used to predict future behavior. We reject this argument for the same reason we rejected it regarding the County's survey. In addition, LILCO's witnesses felt that members of the focus groups might have been influenced by other members of the focus group. LILCO Ex. 1 (Crocker et al.), at 19-20. Dr. Cole states this was probably true, and was intended, because in an accident people will be acting in a social setting in which they will be influenced by others. SC Ex. 13 (Cole et al.), at 32 n.18.

51/ Indeed, the most recent survey conducted by Dr. Cole for Suffolk County indicates a prevalent fear among Long Island resi-dents that it is possible for such a serious accident to occur at i Shoreham. SC Ex. 13 (Cole et al.), at 39-40 and Att. 8, at 28.

This fact is confirmed by the focus groups transcripts.

SC Ex. 13 (Cole et al.), at 40-41.

Vegas during atomic bomb tests in Nevada. Because there is no evidence that people avoided Las Vegas during or after atomic bomb tests in the Nevada desert, he asserts that the County's conclusions that people will act on their fear of radiation are erroneous. Egg LILCO Ex. 1 (Crocker et al.), at 20. These data are not probative, however, in light of Dr. Mileti's admission that the tourists were not aware of the tests. Tr. 17500-01 (Mileti).52/

108. LILCO also. offered testimony that at TMI, only a few people arrived at reception centers for monitoring and that when monitoring was made available to the public, some two weeks after the TMI accident, only a relatively small portion of the resi-52/ Likewise, he offered data r egarding property values in the TMI area. Dr. Mileti argues that if people were as afraid of radiation as the Governments argue, one would expect mass emigration and a decline in property values in that area following the TMI accident. See LILCO Ex. 1 (Crocker et al.), at

20. Again, this argument is unpersuasive. There are numerous additional factors (jobs, schools, etc.) which affect property values, but which Dr. Mileti did not weigh before offering his opinion. See Tr. 17502-07 (Mileti). For the came reason, we find equally unpersuasive the absence of e. decline in population or property values in the 10-mile EPZ around Shoreham.

Similarly, Dr. Linneman's anecdote that U.S. military personnel and Spanish residents did not flee from the area around Palomares, Spain, when four nuclear bombs were accidentally lost over that area, in not persuasive. Plainly, military discipline and the penalties of fleeing one's post made it unlikely that military personnel would flee. Furthermore, there is no evidence that the level of concern about radiation among foreign nationals i

in the 1960s is comparable to the level of concern existing now among the American public. The Palomares incident also predated the TMI and Chernobyl accidents which sensitized the public to the hazards of radiation. E,eg LILCO Ex. 1 (Crocker et al.), at

21; tr. 17508-14 (Crocker); Tr. 17515-17 (Linneman).

I

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dents in the TMI area asked to be monitored. LILCO Ex. 1 (Crocker et al.), at 15; LILCO Proposed Findings, at 28-29. We reject this argument.

E i

109. This evidence is irrelevant because chere was no advisory at TMI that some members of the public may have been contaminated and should report for monitoring. SC Ex. 15 (Johnson and Saegert), at 15-16; Tr. 17497-98 (Linneman);

Tr. 17499 (Mileti). Thuss it is not surprising that people did not sp) to the TMI reception centers for monitoring. In contrast,.

under the LILCO Plan, the public will be advised of the need to seek monitoring in the even't of a release with the potential to  !

cause contamination. With the need for monitoring, and the existence of centers for that purpose made public, large numbers of people can be expedited to seek monitoring. See SC Ex. 15 (Johnson and Saegert), at 15-16.

i 110. Likewise, the fact that a relatively small number of people reported to hospital.e, for monitoring beginning two weeks  !

after the TMI accident is also irrelevant. There is no evidence in the record of now many people knew about the availability of such monitoring. In addition, LILCO's proffered evidence sheds i

no light on how people would act at the time of an emergency when  ;

advised by EBS broadcasts of the need for prompt monitoring at

> specific sites. i

e. The Effect of Emeroency Information 111. LILCO argued that the public's pre-existing fear of' radiation will not result in,a significant monitoring shadow because LILCO's EBS messages will outweigh that fear and thus will predominantly influence people's behavior during a Shoreham emergency. Therefore, members of the public not advised to seek monitoring will not do so. See LILCO Ex.. 1 (Crocker et al.), at 14, 19, 25-26.

112. Suffolk County's witnesses disagreed.for a number of reasons. First, there is no reason to believe that LILCO's EBS messages will overcome an individual's strong fear of radiation.

The County's experts h3ve examined the EBS messages in LlLCO'n Plan and those " broadcast" by LILCO during the February 13 exercise. They do nothing to calm this fear, or to explain why only some people might have been contaminated. Ece SC Ex. 13 (Cole et al.), at 42. The EBS messages tell people outside the 10-mile EPZ that they are safe; however, becaute many ritembers of f.he public are pre-disposed to believe differently, they are likely to seek monitoring at the reception centers. Tr. 17972 (Johnson).53/

k3/ Suffolk County's witnesses offered other reasons why LILCO cannot simply assume that LlLCO's emergency information will deter people from going to reception centers even if not advised to do so. For instance, some people may misunderstand the  ;

message because under stress, as Long Island residents surely j would be during an accident, they will have trouble comprehending and processing spatial information. See SC Ex. 13 (Cole et al.),

(footnote continued) l i j l

- . - - - - - - - - - - - _ - - - - - - ---- a

113. Furthermore, Dr. Lindell's own research rebuts LILCO's position.that emergency information will significantly outweigh pre-existing concerns about radiation. In his Nuclear Safety article he states:

The data reported here contribute to a growing literature that suggests that the overresponse at TMI resulted as much from orior oublic perception of the risks of a nuclear power plant accident as it did from the confusing and conflicting information disseminated dur-ing the TMI-2 crisis. Thus, the establishment of measures to ensure consistency in the information released about an accident addresses only a part of the problem.

LILCO Ex. 6, at 466 (emphasis added). This strongly suggests that emergency information will not override pre-existing attitudes as determinants of behavior.ld/

2 114. LILCO's messages that people outside a particular zone would be safe are also likely to be discounted by the public due to LILCO's low credibility. It is well known that LTLCO har a very low degree of credibility in the Long Island community, I

(footnote continued from previcus page) )

at 42-43. In addition, even people who understand correctly the contet.ts of tne message but were not residents of the named j zones, may nonetheless seek monitoring because they may not know l which zones they have gone 'tnrcugh, Or traveled near, during j their trips out of the EPZ. SC Ex. 13 (Cole et al.), at ;3.

EA/ Despite the fact that Suffolk County's witnesses raised this contradiction in their testimony, Dr. Lindell did not address it in his Rebuttal Testimony. See LILCO Ex. 50 (Lindell Rebuttal). i In the absence of any such rebuttal, we conclude that a large l number of people will act on their pre-existing fears, not on

! LILCO's information.

l

SC Ex. 13 (Cole et al.), at 44-45 and nn.24-26.51/ LILCO did not rebut this assertion. In light of this low credibility, it should be assumed that LILCO's advice will not be heeded by a large number of people who may objectively be in no danger.

Tr. 17952-53, 17957-58 (Cole).15/

115. Again, LILCO's own witness Dr. Lindell provides support for the County's position.

The gap between accurate information and the achievement of compliance with recommended actions should be recognized as a large one.

Persons must attend to, comprehend, yield to, and retain information before they can act on it. The yielding is ',ikely to occur pM y_ji the source of the information) is conside'ed r

grediblg.

LILCO Ex., 6, at 466 (emphasis added).ll/

11/ The fccus group data also support Suffolk County's testimony that people would not accept instructions f rom IILCO that only  !

portions of the population had been endangered or exposed.

SC Ex. 13 (Cole et al.), at 45 and n.26. j 11/ This raises the question that if LILCO has such low credibility, why would people -- indeed more than advised to do so -- go to reception centern run by LILCO to be monitored? The County's witnesses explained that if LILGO were to tell Long Island residents during an accident at Shoreham that they are in no danger, LILCO would be saying something that, as the data chow, the public would initially disbelieve. However, if LILCO l were to tell members of the public that they should be monitored for cor.vaia4 nation- it would be telling them something that they would be likely to believe, because it would be consistent with i their own beliefs. SC Ex. 13 (Cole et al.), at 46.

5]/ The Ccunty's witnesses quoted this statement in their pre-filed testimony. Again, Dr. Lindell did not contest this point in his rebuttal testimony. See cenerally LILCO Ex. S0 (Lindell Rebuttal).

l 72 - 1 L----_____________ - - - -

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l 116. Our review of the evidence convinces us that LILCO's emergency information will not significantly diminish the moni-toring shadow. LlLCO's low credibility, coupled with the public's fear of radiation, will contribute to a large monitoring shadow which LILCO has not taken into account in its planning basis.52/

117, We recognize that in our PIDs we found that a previous County sureey was not a useful predictor of emergency behavior.

PID, 21 NRC at 667. Here, however, the circumstances are different. The survey now at issu.e was based on the very infor-mation LILCO intends to disseminate in a Shoreham accident and was confirmed through focus group interviews which also employed that information. We observe also that while the monitoring shadow will be caused by fear, it also appears to us to be another form of information-seeking behavior, which no one dis-t putes will take place in an emergency. When an advisory broad-l l case to the public expla. ins that a release has occurred with the l

potential for 9f fsite contamination, it must be expected that I

l 58/ During the hearing, this Board asked why it should not be j l

presumed that people will act " rationally".and follow instructions disseminated during an emergency. See Tr. 17948, 17952 (811ne). Dr. Saegert convincci us that the premise of the question was flawed. Monitoring-seeking benavior by those not l advised to be monitored is rational behavior if they believe they l Lay have come into contact with a disaster agent that is imperceptible to the unaided senses. Tr. 17967-68 (Saegert).

L People who do not follow LILCO's instructions will not be acting

" irrationally." Rather, such people will be reacting on their r own perception of the risk which LILCO's information will not alter because of LILCO's lack of believability and the fear they have of radiation. Tr. 17955 (Saegert).

1

. _ _ _ _ _ _ _ _ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ ~

rational people will attempt to determine whether they have been affected by seeking to be monitored. While L.TLCO expects that its emergency information will limit the numbers of people seeking monitoring to those who actuall" need it, we are not convinced that its EBS broadcasts will diminish substantially the information-seeking (i.em, ;nonitoring ) which will occur. This is

,especially true since LILCO's credibility as an information-provider is so low.

110. We note also that the Appeal Board has taken a more favorable view of surveys than we did in our PID and that LILCO's own witness appears to have used them in a manner similar to the County's use.

119. In light of this evidence, we find that the County's )

survey is useful in predicting roughly the magnitude of the moni- I toring shadow. We do not hold that the County's survey has pre-cisely predicted the number of people who will seek monitoring, but the bottom line is clear -- that number will be far Jarger than LILCO assumes. ,

1 D. Other Resources / Revised Monitorino Procedures )

i 120. LILCO also contends that it can meet the requirements of Section J.12 because it will be able to augment its own i resources on an "ad hoc" basis if the number.of people arriving l

exceeds its planning basis. Specifically, LILCO intends to con-tact INPO and Brookhaven Laboratories to request additional moni-toring personnel if it appears that more than 30% of the EPZ population will arrive at the reception centers. LILCO Ex. 1 (Crocker et al.), at 52 LlLCD witnesses testified that accord-ing to information they received from INPO, approximately 88 monitoring personnel would arrive six hours after a request to i

INPO for assistance. Additional personnel would be available i l

} within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> of such a request. Id. Brookhaven National Laboratories was also cited as a "possible" source of an unspeci-fied number of personnel. Id. We do not find this to be persua-sive evidence that LILCO can meet its responsibility to monitor all arriving evacuees in about 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />.

121. First, the accuracy of INPO arrival times is not clear. The arrival times are merely estimates based upon telephone calls to INPO. Tr. 17657 (Crocker). Additionally, there has been no analysis of how long it weuld take INPO personnel to reach the reception centers in the congested conditions that would prevail on routes leading to the reception centers under emergency conditions. See Tr. 17633-38 (Dreikorn);

LILCO Ex. 1 (Crocker et al.), at 49.

122. Second, there is no evidence in the record to permit us to determine whether the number of available INPO and Brookhaven personnel will be sufficient to assist LILCO in

monitoring all arriving. evacuees within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />, particularly

.since these additional personnel will not-begin to arrive until

. well ~ into the emergeitey (at least six hours after the r.equast for INPO assistance). As wo explained before, LILCO's monitoring procedures are inadequate. In fact, using. adequate m6nitoring methods. it will take LILCO personnel more than twice as long to monitor' arriving evacuees, thus cutting by at least half the monitoring capacity cf the resources LILCO11ntends to provide.

Egg Section III.C.1, below. This means that an extraordinary number of outside personnel must be available promptly.to assure l that all arriving evacuees are monitored within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. LILCO L

'has provided no evidence that such resources are available to achieve this. goal. Even if 88.INPO monitors are available six hours into'the' accident, that will plainly be insufficient if far more-than 30% of the EPZ, population arrives. Furthermore, the fact that-additional INPO resources may be available by 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> is irrelevant since LILCO is required to monitor all arriving evacuees by roughly the time the additional INPO resources would be arriving.

123. Further, we are unpersuaded by the availability of Brookhaven personnel. The numbers available are small and some

'are already expected to conduct off-site field monitoring in an accident. Egg Tr. 17659-61 (Crocker, Dreikorn).

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124. If LILCO cannot meet the demand for monitoring within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />, it also intends to employ an abbreviated monitoring procedure in which only the driver of a vehicle will be monitored if all other passengers came from the same point of origin.

LILCO Ex. 1 (Crocker et al.), at 53. For reasons which are explained in greater detail in our discussion of LILCO's monitor-ing procedures, we find this method unacceptable, as did FEMA in its Rev. 8 RAC review. Seg Section III.B.2.f, below. Thus, it cannot be employed to assist LILCO in meeting the Section J.12 12-hour limit.12/

1 I

125.

In light of these facts, LILCO has not successfully demonstrated that it will be able to call upon sufficient outside sources to meet Section J.12's requirements. Furthermore, its plan to employ inadequate monitoring procedures to expedite the process is unacceptable.51/

52/ We cannot take seriously LILCO's plan to tell people to take showers or use other means to attempt to decontaminate themselves at home or at their evacuation destinations if LILCO's decontamination facilities become overloaded. LILCO Ex. 1 (Crocker et al.), at 59. This does not provide an example of an l

ability to expand its response. See LILCO Proposed Findings, at l

32. Rather, it represents a derogation of LILCO's duty to provide adequate decontamination facilities for all arriving contaminated evacuees. See ALAB-855, 24 NRC at 800.

5S/ We are not persuaded that LILCO will be able to expand its emergency response by relying on the State and counties to provide trained personnel. LILCO Proposed Findings, at 32-33.

While we must assume a "best effort" response by such entities (see CLI-86-13, 24 NRC 22, 31 (1986)), there is no evidence regarding the number of personnel which the State or County could provide, how quickly they could be made available, or how such a "best effort" response might proceed. If LILCO wished to rely upon such a theory, it as incumbent upon LILCO to have presented (footnote continued)

(

L  !

l.i

.E. Conclusion on Plannino Bggis I l 126. In light of the foregoing evidence, we find that LILCO has notimet its burden on this-issue. LILCO has conducted no 1

" independent analysis" of the number of peopleJwho will seek ~  ;

monitoring, despite our-prior' ruling which' identified the need for such analysis. Furthermore, to the extent LILCO has relied on the Krimm Memorandum as a substitute, that reliance was misplaced. We are also unpersuaded by Mr. Donaldson's and

.' .Mr. Kantor's unsupported testimony on the intent behind Section 1

L J.12.

l' 127. While Mr. Hulman's analyses may show that in many cir-cumstances less than 100% of the EPZ population will require monitoring,~the evidence demonstrated that many times the number of people LILCo assumes will require monitoring will in fact seek monitoring. Since the LILCO Plan does not provide any means to distinguish between.those requiring monitoring and those who do not, LILCO must take.the demand generated by both categories into-account in establishing its planning basis.

128.. We do not hold-here that LILCO must plan to monitor the number of people which the County's survey predicted would seek monitoring because the survey was not that precise. I (footnote continued from previous page) evidence thereon.

It is unacceptable for LILCO to have waited to j argue about such a matter in its findings. We thus reject j LILCO's argument.

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i

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1 l

Nevertheless, the County's conclusion that tae monitoring shadow will be substantial adds further weight to the Commission's language in San Onofre and the State witnesses' testimony that 1 Gection J.12 must be interpreted prudently to require planning

'for monitoring at least 100% of the EPZ population in about 12  !

l hours. We agree with that conclusion. LILCO's 30% planning basis does not meet that standard and we are not persuaded that it can be met by "ad hoc" reliance on INPO or other outside i

sources. Accordingly, we find that LILCO's planning basis is I inadequate.

l f

III. MONITORING, DECONTAMINATION AND HEALTH EFFECTS A. Backaround 129. A Shoreham accident could expose members of the public to radioactive contamination. Indeed, the NRC's regulations assume that an accident will result in serious contamination.

See Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 NRC 528, 533 (1983). If such contamination is not identified and removed in a timely manner, adverse health consequences, such as increased cancer rates, could result. Adequate radiological monitoring is, therefore, essential to identify persons who have been contaminated so that necessary decontamination measures can be timely performed. SC Ex. 16 (Radford et al.), at 9, 32-36.

Adequate decontamination procedures and facilities are also necessary to assure that contamination is in fact removed from evacuees. Accordingly, adequate monitor!.ng and decontamination services are "within the ' range of protective actions' that 10 C.F.R. 50.47(b)(10) recuires be developed for all members of the public within the EPZ." ALAB-855, 24 NRC at 800 (emphasis added).

130. In this portion of our decision, we examine the ade-quacy of LILCO's proposed monitoring procedures. As part of our inquiry, we also examine the time required to carry out those

.i

- precedures.. The latter inquiry is relevant to the question of i whether the reception centers themselves, and the resources LILCO

.will devote to them, can monitor all arriving evacuees in about

- 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. . Egg.Section V.C, below. In addition, we consider the adequacy of-LILCO's decontamination procedures and facilities.

Finally, Ewe review the-adverse health effects which may result from implementation of-LILCO's reception center < scheme.

131. For the reasons set forth below, we find that the record on LILCO's monitoring and decontamination procedures pro-vides no basis for a reasonable assurance finding.51/ The record demonstrates that LILCO'has chosen not to use preferred and established monitoring methods. Instead, LILCO has abandoned the procedures incorporated into its previous revisions of the Plan and now proposes cursory monitoring procedures which are incomplete and controversial. LILCO's apparent reason for adopting such methods is to permit LILCO to process evacuees 11/ The County witnesses on this issue were Edward P. Radford, Gregory C. Minor, Susan C. Saegert, James H. Johnson, Jr., David Harris.and Martin Mayer. The State of New York presented the testimony of James D. Papile, James C. Baranski and Lawrence B.

Czech. Witnesses appearing on LILCO's behalf included Douglas M.

- Crocker, Diane P. Dreikorn, Dale E. Donaldson, Michael K.

Lindell, Dennis S. Mileti, Richard J. Watts,-and Roger E.

Linneman. FEMA presented the testimony of Thomas E. Baldwin, Ihor W. Husar and Joseph H. Keller; the NRC Staff presented no witnesses on these issues.

The Board finds that the witnesses for all parties were generally well qualified and familiar with the matters on which they testified. Egg cenerally SC Ex. 16 (Radford et al.), at 1-4 and Att. 1; N.Y. Ex. 1 (Papile et al.), at 1-3 and Atts. 1-3; LILCO Ex. 1 (Crocker et al.), at 2-3 and Atts. A-G; and FEMA Ex. 2-(Baldwin et al.), at 2-4 and attached resumes.

L-.

through the-recepti~on centers quickly enough to meet the time l

requirements:of.Section'J.12. This approach, however, which raises expediency'over protection, is inimical to sound emergency.

l planning. -This Board must be. concerned with safety not expediency.' Because we find that.LILCO's~ procedures will not provide'such. safety, we make.no reasonable assurance finding on

)

LILCO's monitoring and decontamination' procedures. j L

l i

i

.B.- LILCO'S Monitorino Methods

1. Rev. 8 132. Rev. 8 of the LILCO Plan includes a new monitoring procedure which is a departure from the procedure employed in previous revisions. . In previous versions of the Plan, all evacuees were provided a scan of the entire body as well as a thyroid scan. SC Ex. 16 (Radford et al.), at 11; NY Ex. 1 l

(Papile et al.), at 19. In Rev. 8, however, evacuees arriving in private vehicles are to be monitored at stations manned by two LILCO personnel. One monitor will scan drivers' hands and feet

-only while the driver remains seated in the vehicle. The other monitor will scan the vehicle itself by taking " swipes" of the top of the hood and-the wheel well, and then monitoring both l

L swipes for contamination. LILCO Ex. 1 (Crocker et al.), Att. R, i

at 9-9a. If-the vehicle and the driver are determined to be

" uncontaminated," any passengers in the vehicle will also be r

i

! i. ,

assumed to be uncontaminated. If., at 9a; SC Ex. 16 (Radford et al.), at 7-8. If either the vehicle or the driver is found to be contaminated, .the vehicle and its occupants will be directed to a decontamination trailer located at the reception center. LILCO

-Ex. l'(Crocker et al.), Att. O, et 6-7. LILCO estimates that monitoring a' vehicle and its driver under the procedures described in Rev. 8 will. require approximately 35 seconds per i

vehicle.- LILCO Ex. 1 (Crocker et al~.), Att. O, at'6.

133. Under Rev. 8, buses carrying evacuees without their own transportation will report to the Hicksville reception center, where all bus evacuees will receive a full body scan and-a thyroid scan. LILCO Ex. 1 (Crocker et al.), Att. R,_at 6-8.

LILCO estimates that the full body scan will take about 90 seconds-for each individual, while the thyroid scan would take an additional five' seconds for an adult and an additional'30 seconds for a child. Id., at 7-8.

134. The RAC found LILCO's Rev. 8 monitoring procedures for the general public to be inadequate on the ground that Section J.12 of NUREG 0654 requires monitoring all evacuees, not just drivers. FEMA Ex. 3, Att. 1, at 11-12; FEMA Ex. 2. (Baldwin et al.), at 16; Tr. 18269-71 (Husar); Tr. 18303 (Keller). j Furthermore, FEMA found that the Rev. 8 monitoring method might  ;

miss contamination on areas of the driver's body that are not 4 f I I monitored. FEMA Ex. 2 (Baldwin et al.), at 19; see Tr. 18303-

.04,.18401'(Keller).

135. The Governments agreed with FEMA that LILCO's Rev. 8 monitoring procedures for the general public were inadequate. We also agree for the reasons presented by FEMA and the Governments.p2/ LILCO~has tacitly admitted the inadequacy of the Rev. 8 procedures, as demonstrated by LILCO's subsequent submis-sion of draft revised monitoring procedures (the " draft revisions") during the course of this proceeding.

2. The Draft Revisions 136. The draft revisions which were submitted during the hearing provide that each monitoring station be staffed with three people: two monitors to scan evacuees and a traffic guide

. 62/ As the Governments' witnesses testified, the LILCO Rev. 8 procedures assume that if the driver is not contaminated, the passengers'of the vehicle are.not contaminated. This assumption is insupportable. The driver.and his passengers may come from different points within the EPZ, or the driver may have been.

indoors during the passage of the plume while the passengers were outdoors. The result of LILCO's selective monitoring may be to fail to detect members of the population who are contaminated.

SC Ex. 16 (Radford et'al.), at 11; NY Ex. 1 (Papile et al.), at 18-19. Furthermore, the Rev. 8 procedure of limiting monitoring to:the hands and feet of the drivers is an inadequate monitoring technique which, if used, could'cause a monitor to miss other parts of the body that may be contaminated. SC Ex. 16 (Radford et al.), at 11; NY Ex. 1 (Papile et al.), at 19. The FEMA witnesses testified that body parts other than the hands and feet could become contaminated without detectable contamination on the hands and feet, such as when contamination is picked up by .

contact with previously contaminated items. FEMA Ex. 2 (Baldwin et al.), at 19; Tr. 18308, 18401 (Keller). Thus, under Rev. 8, there would not be adequate monitoring of areas such as the back

)

and the backs of the leg, where contamination may exist. FEHA Ex. 2.(Baldwin et al.), at 19; Tr. 18303-04 (Keller).

i 1

m t j i

++ t to ubtain vehicle swipes and record certain information. The j head, shoulders, feet and hands of al] evacuees arriving by orivate vehicle are to be monitored while the fvacuees remain seated in tile 'rehicle. LILCO Ex. 1 (Crocker et al.), at 40 and Att. P',.at'9a,52/ LILCO estimates that each vehicle will have l

2.8 occupants ' and tbst this procedure -will take approxi.nately 100 l

l seconds per vehicle. I.ILCO Ex. 1 (Crocker et al.;, at 42.

K ,

137. Tne dralt revlaions originally called for evacuees I arriving in buses to continue to receive a whole body scan and a thyroid scan. Id., Att. P at 9b, Att. R at 8. However e just prior to trial, LILCO changed the bus evacuee monitoring

, procedure. Sig June 24, 1987 Letter of J. Christman to this Board. Under tnia most recent iteration, bus evacuees will not receive a thyroi6 scan or a whole body scan. Instead, bus evacu-ees will be monitored'bej scanning the nead, shoulders, hands and feet, followed by an "X pattern" scan across the front and back.

LILCO Ex. 1 (Crocker et al.), Addendum; Tr. 17561-52 (Dreikorn).

LILCO estimates this newly-revised monitoring procedure will take sbout 60 seconds per person. Id.

]

l 138. Finally, the draft revisions contemplate that if more than 10% of the EPZ population is to arrive at the reception centers, LILCO w'ill seek additional assistance from INPO and I

63/ Even the ca ct; sear passengers in a two-door vehicle are to he monitored"while they are seated 4.n the back seat. Tr. 17552 (Dteikorn). ,

l l - BE -

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other organizations. LILCO Ex. 1 (Crocker et al.), at 52. If that assistance is insufficient, the monitoring procedures will revert to a modified form of the Rev. 8 procedures, under which LILCO will monitor the hands, feet, head and shoulders of only the driver of a vehicle, as well as those passengers in the vehi-cle w:1o came from a different point of origin than the driver, or i those passengers who request monitoring. Id., at 53.

1 1:' 9 . We find that LILCO's proposed draft revisions of its l monitoting procedures are an improvement over Rev. 8 in that all arriving evacuees will be monitored to some extent, at least up l to the 30% threshold level. Nevertheless, we cannot find these j revised procedures adequate for the following reasons.

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l

a. Absence of FEMA Findinos 140. First, as discussed in Section I.D above, there are no FEMA findings at all on the draft revisions. Furthermore, FEMA's testimony at the hearing provides no basis for a reasonable assurance finding by this Board. See Sections III.B.2.b and c, below.  ?EMA unequivocally stated that it had not reviewed l l

LILCO's draft revisions, including LILCO's proposed new monitoring scheme. Tr. 18269 (Husar); Tr. 18305 (Keller).

Indeed, FEMA testified that it could make no findings on LILCO's recepticn centers and procedures until there was an exercise testing them. Tr. 18271-72 (Husar); Tr. 18286, 18302, 18305-06, f

18463 (Keller). However, FEMA observed that monitoring people while they remained in their cars, as LILCO proposes, is a diffi-cult and controversial procedure. Tr. 18303-04, 18310 (Keller).

FEMA also acknowledged that good radiation health practice dic-tates that LILCO monitor the entire body. Tr. 18304 (Keller).

Finally, there are no FEMA findings on the adequacy of LILCO's decontamination procedures or of the decontamination trailers.

Tr. 18286 (Keller). In the absence of FEMA findings, or even testimony that would support a reasonable assurance finding, we are precluded from approving these portions of LILCO's Plan. See Section I.D, above. g i

b. Monitorino in Vehicles 141. There is substantial doubt whether LILCO's proposal to monitor people in their vehicles will protect the public health and safety. Eeg Tr. 18310 (Keller). LILCO witnesses admit that monitoring individuals in their vehicles is not a common approach. Tr. 17555 (Watts). In fact, no other plan in the g State of New York provides for monitoring to be accomplished in cars. Tr. 18191 (Czech).

142. It is easy to discern why the practice is not widely j l

accepted. Monitoring evacuees in their cars does not permit a 4

complete examination of the evacuees. FEMA Ex. 2 (Baldwin i et al.), at 19; Tr. 18303-04 (Keller). Specifically, there are

areas such as the back and back of the legs which cannot be monitored while the evacuees are in their vehicles. 1 FEMA Ex. 2 (Baldwin et'al.). t 19.- Monitoring passengers while they are seated in locati~ons'which may be accessible only'with difficulty may cause improper scanning and inaccurate results. SL 0x. 16 (Radford et al.), cat 12; NY Ex. 1 (Papile et al.), at 20-21; gge-alsp Tr. 18309 (Keller). As FEMA has testified, it is therefore l very difficult to monitor people adequately in their automobiles.

1 l

1 Tr. 18304-(Keller). Thus, there is controversy about whether this is an-adequate approach to monitoring. Tr. 18310 (Keller).

'j No witness advocated in-car monitoring as a preferred method.

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143.- It' appears to us that LILCO proposes to monitor people.

-in their cars in order to save time and not because it is a preferred monitoring method. LILCO has adopted this l

controversial procedure as a means to try and meet the Section J.12 time requirement. However, we cannot approve LILCO's decision to place expediency above safety. Egg Union of Concerned Scientists v. NRC, Nos. 85-1757 and 86-1219, slip. op, at 20 (D.C. Cir. Aug. 4, 1987). There is no clear evidence on which we can base a finding of reasonable assurance that LILCO's method of monitoring evacuees while they remain in their vehicles L is adequate. Indeed, the evidence submitted established that monitoring evacuees while they are in their vehicles is less than standard.51/ Based on this record, we must therefore find that 5d/ In its Proposed Findings, LILCO noted that the State's (footnote continued)

L__________ __

monitoring individuals while they are in their vehicles does not provide reasonable assurance that the public will be protected.

l c, Scope of Monitorina 144. While the draft revisions provide that the head and shoulders will be monitored as well as the hands and feet, LILCO does not provide for a whole-body scan. Thus, as all of the witnesses except LILCO's recognized, areas of pcssible contamination may be missed, especially on the lower back, the back of the legs, the abdominal area and the buttocks. SC Ex. 16 (Radford et al.), at 12; NY Ex. 1 (Papile ?t al.), at 21; FEMA l Ex. 2 (Baldwin et al.) at 19; Tr. 18304, 18401 (Keller).

145. To support its abbreviated procedure, LILCO argues that if an individual is contaminated, such contamination is likely to be found on the individual's hands or feet as a result of touching or walking on other contaminated surfaces.

(footnote continued from previous page) witnesses did not necessarily oppose the practice of monitoring in vehicles. LILCO Proposed Findings, at 47. LILCO failed to note, however, that the State's witnesses also found that the procedure could only be conducted with difficulty. NY 2x. 1 (Papile et al.), at 20. Moreover, the State's witnecses also testified that monitoring in such constricted space would require great care and could not be accomplished in the 100 seconds LILCO assumes. NY Ex. 1 (Papile et al.), at 20-21. The State witnesses, therefore, testified that LILCO's procedure, conducted within the time LILCO assumes, would lead to improper scanning, inaccurate results and adverse health effects. Id. Proper monitoring, which includes a whole-body scan and thyroid monitoring, even if it is to be done in vehicles, would take far longer than 100 seconds. See Section III.C.1, below.

. _ _ _ , . _. - _ _ - - = . _ - .. _ _ _ _

Therefore, monitoring the hands and feet is asserted to be sufficient 1to detect contamination. Tr. 17475-76 (Watts).

Mr. Keller.ofLFEMA refuted this argument, however, testifying-that' contamination on the hands and feet'can.be eroded or brushed off as the contaminated hands or feet come into contact with' clean surfaces. Tr. 18401'(Keller).51/

'1465 FEMA, .the State and the County all agree that it is better' practice to scan the whole body. Tr. 18304-(Keller); SC Ex. 16-(Radford et al.), at 11; NY Ex. 1 (Papile et al.), at 19.

Only a scan of the whole body provides assurance that all signi -

ficant areas of contamination'will be discovered. In fact,.we note that prior to Rev. 8, the LILCO Plan provided for monitoring the whole body.. NY Ex. 1 (Papile et al.), at 19; SC Ex. 16 (Radford et al.), at 11. Failure to provide a whole body scan may. result in adverse public health effects. Egg Section III.F.1, below.

51/ LILCO also argues that any contamination which would be missed by monitoring only the hands, feet, head and shoulder would be " medically insignificant." LILCO Proposed Findings, at

45. In support of.this argument, LILCO cites the FEMA prefiled testimony. Id. However, LILCO's reliance on FEMA is misplaced, for on cross-examination, the FEMA witnesses testified that they used the term " medically significant" to mean discernable physical injury. Tr. 18293 (Keller). Indeed, FEMA witness Keller admitted that there were increased risks of cancer if even low levels of contamination were left on the body over time. See Tr. 18295-96 (Keller).

1

147. As with in-vehicle monitoring (Section III.B.2.b, above), we are faced with a situation where LILCO has proposed a 'a procedure which clearly is not preferred. LILCO has failed to c provide convincing evidence that its procedure is good enough. , ,

It is beyond question that a whole body scan is the preferred I method, so we are not confronted with a dispute among experts regarding which monitoring method is best. Rather, the Board must address the LILCO argument that its less-than-ideal procedure is good enough. We are not persuaded, particularly -

given the unanimous opinion of the other witnesses and the NRC's statutory mandate to focus on safety. We recognize that the e

Atomic Energy Act does not require zero risk, but the NRC's regulations do require prudent risk reduction measures. A -

monitoring procedure that does not cut corners is clearly such a measure. LILCO's revised procedures clearly do cut corners. It ^'

would be easy for LILCO to revise its Plan and have evacuees step out of the car and have the entire body monitored. The only reason we can discern for why this is not done is LILCO's apparent fear that it cannot meet the 12-hour Section J.12 requirement. We cannot approve a procedure, however, where there are feasible and better alternatives, just because that better alternative makes it more difficult to meet a regulatory requirement.

P

148. Accordingly, we find that only a scan of the whole body will suffice to assure that contamination will be detected on all arriving evacuees who are in fact contaminated. Of course, this finding, as well as our rejection of in-vehicle monitoring, has implications for the rate at which LILCO can be expected to monitor the public. See Section III.C.1, below.51/

d. Thyroid Contamination 149. Thyroid contamination results from the intake of radioactive iodine, which is likely to be one of the most prevalent materials released from a meltdown accident. SC Ex. 16 (Radford et al.), at 14. In the human body, radioactive iodine 55/ LILCO originally assigned 12 monitors to the Hicksville reception center for the purpose of monitoring evacuees arriving by bus, FEMA Ex. 2 (Baldwin et al.), at 16. The draft procedures originally called for bus evacuees to receive a whole body scan, which LILCO estimated would take 90 seconds per person. Based on this estimate, FEMA calculated that it would taken 23.08 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> to monitor the 11,080 people who will be transported by bus to the Hicksville reception center. FEMA ,

Ex. 2 (Baldwin et al.), at 17; Tr. 18298-99 (Keller). This clearly failed to satisfy Section J.12.

LILCO attempted to meet this lack of staffing by adding 12 more monitors and monitoring only parts of the bus evacuees' bodies, thus reducing the monitoring time to 60 seconds per l i

person. LILCO Ex. 1 (Crocker et al.), Addendum: Tr. 17561-62 )

(Dreikorn); LILCO Ex. 26 (Lieberman Rebuttal), at 38. We find 1 that LILCO's bus monitoring procedures are still inadequate.

Adequate monitoring requires a full body scan. Thus, LILCO's abbreviated procedure does not meet this standard. Furthermore, an accurate full body scan requires two to three minutes.

NY Ex. 1 (Papile et al.), at 23. By simple arithmetic, it is a ,

easy to see that LILCO's 24 monitors will be unable to monitor i 11,080 people in 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. Thus, LILCO's present plan still fails to provide adequate monitoring personnel to monitor bus evacuees in about 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />.

selectively. concentrates in the thyroid gland, delivering nearly I all of its dose to that small volume of tissue. Id. Therefore, thyroid contamination presents a significant health risk during a ra'diological emergency.il/

150. Despite this fact, LILCO will not monitor thyroids unless contamination is discovered elsewhere on the body surface.

See LILCO Ex. 1 (Crocker et al), at 43-44 and Att. R, at 9-11.

The effectiveness of this approach is questionable, however, because the thyroid can be contaminated even when there are no detectable levels of surface contamination. SC Ex 16 (Radford et al.), at 14-15; Tr. 17565 (Watts). Therefore, thyroid contam-ination in some evacuees may not be detected under LILCO's procedure.{8/

52/ One effect of this localized thyroid dose, especially in developing embryos and fetuses in utero, could be to kill the thyroid cells and produce a permanent deficiency of thyroid function, which results in stunted growth and retarded development of the brain function in children. At higher radiation levels, similar effects can be produced in adults.

SC Ex. 16 (Radford et al.), at 14. Furthermore, the thyroid gland is one of the tissues in the body most sensitive to induc-tion of cancer by radiation, so that even small doses substantially increase the risk of cancer. Id.

!E/ The LILCO and County witnesses agree that the treatment for thyroid contamination is potassium iodide ("KI"). Tr. 17679 (Linnemann); Tr. 18037 (Radford). KI is most effective in blocking uptake if it is taken at about the time of exposure, rather than after the exposure occurs. Conversely, the 1 effectiveness of administering KI diminishes the longer after the exposure it is taken. For example, if KI is taken three to four hours after exposure, the protective effect drops to perhaps 50 percent. Tr. 18040 (Radford). Therefore, it is important to l administer KI as soon as possible after exposure. Tr. 17679

( (Linnemann).

l l (footnote continued) l i 1

7 4

i i

.151. LILCO argued against the'need for monitoring the thy- i

.l roid glandLduring.the initial scanning. Se_q e LILCO Proposed ]

1 Findings, at 50. - This protest rings hollow, however, in light of  !

I the fact that LILCO intended to offer thyroid monitoring at the

' initial scanning stage in the versions of the Plan prior to R e v . - 8 ', Sgg Concluding PID, 22 NRC at 423-26e where'we.found LILCO's procedures'for thyroid monitoring to be adequate.- LILCO  !

has not suggested any-persuasive reason why those prior ,

procedures were not more consistent with NRC requirements than LILCO's newest effort.

'152. We_ recognize that thyroid monitoring is not routinely required under plans at other New York State nuclear plants.

-, _ 'Tr. 18417-18 (Keller). . This makes us hesitate to decide that it should be required for Shoreham.6_9/ However, having weighed.the (footnote continued from previous page)

LILCO points out, and the State of New York witnesses acknowledge, that the State of New York has a policy of not administering potassium iodide to the public. LILCO Ex. 1 (Crocker et al.), at 58; Tr. 18165 (Baranski). This New York State policy is n_ot relevant to whether individuals with thyroid contamination should be identified, for the fact that mass distribution is not encouraged does not mean that treatment with potassium iodine should not occur on an individual basis. As Dr. Radford testified, only by testing.for thyroid contamination will one be able to adequately assess and treat an individual.

Tr. 18054 (Radford).

69/ .It appeared initially to this Board that there is no point in requiring thyroid monitoring because effective treatment might not be available. Radioactive iodide can only be detected after sufficient time has' elapsed for uptake into the thyroid to occur, yet delays in administering KI make that treatment less  !

effective. Tr. 18052-53 (Shon). However, as explained by L Mr. Minor and Dr. Radford, thyroid monitoring should nevertheless (

be-required. Radioactive iodine may be detected in the thyroid i (footnote continued) 1 b

/

evidence,-we must conclude that thyroid contamination poses a ,

I substantial threat to the public' health'and safety'and can be i I

detected under most circumstances without requiring any i

.j extraordinary efforts by LILCO or any other licensee. LILCO i apparently agreed, at least prior to this proceeding, as it-previously intended to monitor the thyroids of all arriving-evacuees. It is evident to us that LILCO has dropped this procedure in order to expedite the movement of people through its j reception' centers so-that it can meet the requiremahts of i Section J.12. We, on the other hand, must consider the

. protection of the public. Based on the record before us,-we believe that-thyroid contamination must be detected where present so that treatment can be administered as soon as possible. This can only be_done by having all evacuees undergo a thyroid scan during initial monitoring.

(footnote continued from previous page) in a matter of a few hours after exposure. Tr. 18040-41 (Radford). In the event of a Shoreham accident, people will be contaminated within the EPZ and will then drive through traffic to the reception centers. The journey could take them several hours, during which time they probably will have absorbed enough radioactive iodine to be detectable. Tr. 18053-54 (Minor). If l thyroid contamination is detected at this point, there wil'1 still l be some potential for further uptake into the thyroid and L treatment with KI will still be useful. Tr. 18054 (Radford).

For those who arrive at reception centers much later, all absorption into the thyroid may have occurred, and KI will be ineffective. However, the fact that not all will be aided by detection of thyroid contamination does not diminish the fact that thyroid monitoring should be required because timely monitoring and detection of the contamination will help in the treatment of some evacuees. Tr. 18054 (Radford).

, e. Vehicle Monitorina 153. It,is'also evident ~from the record that LILCO's pro-cedure for monitoring. vehicles is in' adequate because only a very limited area:of1each-arriving vehicle will be monitored. Taking a " swipe" of the front hood.and of a single wheel well will not detect all contamination because it is possible that there'may be other radiation " hot spots" on the vehicle. NY Ex. 1 (Papile et L al.), at 19; SC Ex. 16 (Radford et al.), at 11-12; Tr. 17557 (Dreikorn). In: fact, as the FEMA witnesses indicated, in some scenarios, such as when tires come into contact with cleen

. pavement,-the tires and the wheel wells may not be good indica--

-tors of contamination. Tr. 18305-96 (Keller).

154.. Adequate vehicle monitoring should therefore cover most of the outside surface of the vehicle, including bumpers,

' door' jams and door handles. SC Ex. 16 (Radford.et al.), at 11; NY Ex. 1 (Papile et al.), at 19. Anything less means that possi-ble contamination might be missed, which in turn could cause

. contamination of other items or people coming into contact with those contaminated vehicle, Tr. 18308, 18399, 18401 (Keller).20/

10/ lFurther, the LILCO Plan does not direct monitoring of the trunk of a vehi'cle unless' contamination is found on passengers or on the-vehicle. LILCO Ex. 1 (Crocker et al.), at 46. Since we have found that LILCO's monitoring procedures for individuals and

. vehicles are unsound, relying on those procedures to trigger the monitoringoof the trunk of a vehicle is equally unsound. The trunk of a vehicle should be routinely monitored to detect any contaminated items.taken from the EPZ in the vehicle trunk. j SC Ex. 16 (Radford et al.), at 12; NY Ex. 1 (Papile et al.), at ]

l 20. l l I 1

In light of these facts, we hold that LILCO's procedures for monitoring arriving vehicles provide no reasonable assurance that the public will be protected,

f. The Fallback P_rocidj1r,i, 155. If more than 30% of the EPZ population is to arrive at the reception center, LILCO intends to seek the assistance of INPO and Brookhaven National Laboratories / DOE. If such assis-tance is not sufficient, LILCO' intends to revert to a modified j version of the Rev. 8 procedure in which only the driver of an arriving vehicle, passengers from a point of origin different from the driver, and passengers who request monitoring, will be monitored. LILCO Ex. 1 (Crocker et al.), at 53.

156. For reasons we have already discussed, we are i

skeptical about INPO's or Brookhaven's ability to provide  ;

personnel and resources in time to assist LILCO in meeting l i

Section J.12's time limit. See Section II.D, above.

157. As to LILCO's fallback procedure itself, the Rev. 8 procedure on which it is based has already been found inadequate 1 l

by the RAC. FEMA Ex. 3, Att. 1, at 11-12; FEMA Ex. 2 (Baldwin

]

et al.), at 16; Tr. 18269-71 (Husar). For the reasons we dis-l cussed above, LILCO's draft primary monitoring procedures are i themselves inadequate because they call for in-vehicle monitoring

- - _ _ _ - - - _ - - _ l

i l

of insufficient areas of the body. It necessarily follows that the " fallback" procedure, which provides for even less compre--

l hensive monitoring than LILCO's draft revis#nns, does not provide l

l reasonable assurance that the public health and safety will be 1

protected.

j C. Monitorino Rate 1

l l

l 158. LILCO estimates that it will take only 100 seconds to monitor a vehicle and all of its occupants. Based on this estimate, LILCO concludes that the resources it has committed to monitoring evacuee 3, &nd the capacity of its reception centers, are adequate. We cannot agree for the reasons stated below.

1. Time _Beouired Usino Acoropriate Procedures.

159. First, LILCO's 100-second estimate is based on the revised procedures we have already rejected. As we have stated, adequate monitoring requires persons to leave their vehicles and receive a full body scan and a thyroid scan. To do the job carefully and co'trectly requires two to three minutes per individual. NY Ex. 1 (Papile et al.), at 23; 3C Ex. 16 (Radford et al.), at 27.11/ Given the important health consequences of 11/ The New York State Emergency Worker Handbook, the document most emergency plans in the State of New York refer to for guidance as to monitoring techniques, estimates that two to three minutes are required to conduct an adequate scan of an individual. Tr. 18419-20 (Keller).

adequate monitoring andlthe widespread adoption of the two to .

l. =three minute estimate for adequate monitoring, we adopt the New York and. County estimate that adequate monitoring will require

! .two.to three minutes to complete for each individual.E/

i 160. HowcVer, LILCO's procedures also call for monitoring the evhcuees' vehicle at the.same time the evacuees are being j monitored.- Given the need to conduct such monitoring carefully, and ta' king'into account the number of monitors at each station, the. State's witnesses have estimated, based on their experience r ,

I that it will require an average of three to five minutes to moni- '

tor a' vehicle and its occupants correctly. NY Ex. 1 (Papile 3/ LILCO offered no testimony on the time required to do a full body scan; however, the LILCO Plan has previously estimated that a full body scan would require 90 seconds and that a thyroid scan would require an additional five seconds for an adult and 30 seconds for a child. LILCO Ex. 1 (Crocker et al.), Att. R, OPIP 3.9.2, at 7-8. Mr. Keller of FEMA testified that 90 seconds-per person is the minimum time required to perform a full body scan. Tr. 18480 (Keller). Based on the evidence, we believe that 90 seconds figure for a whole body scan is an absolute '

minimum. SC Ex. 16 (Radford et al.), at 16; NY Ex. 1 (Papile et al.), at 23; tr. 18480 (Keller). Similarly, the LILCO estimate of 5-to-30 seconds for a thyroid scan is extremely low, since a thyroid scan is a sensitive procedure which both the County and LILCO witnesses agree wottld require approximately one minute to conduct. SC Ex. 16 (Radford et al.), at 15.

Accordingly, the two-to-three minute estimate is more prudent to l adopt as at.t average rate for adequate monitoring.

Even if we were to adopt a 90-second per person criterion (which we do not), it is clear that LILCO's 100 second per vehicle estimate is without basis. There are two monitors per vehicle and an average of almost three persons per venicle.

Thus, each vehicle would take at least about three minutes to monitor, even if we accepted a 90-second per person monitcring time.

et"al.), at 26.11/ 'inus, using proper procedures, it will'take roughly twice as lcng as LILCO assumes to monitor a vehicle and

.its ' occupants..

2. LILCO's Estimated Time is Too Low 161. Nevertheless, even if we were to accept the LILCO F- monitoring proceoures, the evidence demonstrates that the 100-second time estimate is too low because it does not account for numerous factors. 'It represents an ideal - perhaps a best-achievable time; but in our opinion, it does not represent a realistic estimate.. It thus cannot serve as the basis 1for

.jndging LILCO's capability to meet Section J.12.

a. Eith Circulation and Traffic Delays 162. Analysis of traffic movement and its effect on LILCO's 100-second estimate'is critical because LILCO's monitoring procedures depend on a smooth flow of traffic through the relatively complex maze L'ILCO has established at each reception 11/ LILCO argued that the State's time estimates should be rejected because they are not based on time trials of the LILCO procedures. LILCO Propos~ed Findings, at 50-51. However, the State's' reasons for bot conducting such time trials are obviouc

-- the State's witnesses have rejected LILCO's procedures just as we have. Time trials of invalid procedures make no sense. The State witnesses' testimony is based on their extensive experience as emergency planners for radiological emergencies. In that capacity, the State's witnesses clearly have had numerous opportunities to< witness how long it takes tc conduct adequate monitoring. We find such State testimony more persuasive than time trials of a procedure which we have ruled is inadequate.

. - 100 -

l

center. Large numbers of cars are required to circulate within very constricted ateas. NY Ex. 5 (Hartgen and Millspaugh),

Atts. 3-6. These circulation difficulties are exacerbated by potential obstruct' ions in the facilities, including cmployee cars and LILCO service vehicles parked in monitoring areas, as well as the long rows of transformers and utility poles in Hicksville Area B. See NY Ex. 5 (Hartgen and Millspaugh), at 63, and Atts. 3-6. These obstructions will slow the movement of vehicles into the monitoring areas and therefore delay monitorir.g times.

163. In addition, traffic exiting each facility will encounter substantial congestion as the traffic leaves the recep-tion centers and reenters the road system. Such congestion may cause exiting traffic to back up into the facilities, thus slow-ing the movement of traffic through the reception centers and cutting capacity further. NY Ex. 5 (Hartgen and Millspaugh), at 58-59, 68, 72. This backup will serve to delay monitoring times from LILCO's 100-second target because vehicles will be unable to enter monitoring stations.

J l

b. Behavioral Delays J

l 164. LILCO's 100-second estimate also does not account for delays that will result from evacuee stress and frustration with the apparent ineffectiveness of LILCO's procedures. Evacuees are J

going to be extremely anxious to be monitored in order to know if j l

1 l

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i

__ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ . _ _ _ ._ I

i they have1been contaminated. See Section II.C.3.d, above. This anxiety and stress.will be aggravated by long' delays in obtaining monitoring. IGC Ex. 16 (Radford et al.), at 20.11/

l 165. 'The st'essr and' anxiety experienced by evacuees will

. result'in diminished ability to follow instructicus;25/ l 24/ ResEarch est blishes that drivers who find themselves detained and not able to progress due to the actions of others experience high levelo of frustration. SC Ex. 16 (Radford et al.), at 2 0. - Such circumstances will exist under LZLCO's  :

reception center plan. Prior to reaching the reception centers, the-evacuees.will have been sitting for hours in long lines of stationary or slow moving traffic and will have already confronted the most anxiety provoking types of-traffic situations

-- blocked intersections, creeping traffic, and other impediments-  !

to progress. NY Ex. 5 (Hartgen and Millspaugh), at 43-46, 47-50.

The fact that evacuees will be waiting for radiological monitoring will also increase the already high levels of stress.

SC Ex. 16 (Radford et al.), at 22.

25/ In unrebutted cestimonyf Dr Saegertr a Core;y witneps, testified that anxiety significantly diminishes a person's capacity to process information from signs and to form an accurate image of the environment. This diminished capac3py often results in a slowed ability to follow instructions or in some cases, a total inability to folloy instructions. SC Ex. 16 (Radford et al.), at 22-23. The consequence of this decreased ability to follow instructions is that evacuees: (1) may not be able to comprehend routing-instructions given to them by LILCO guides; .(2) may not mo:le through the complicated traffic maze LILCO has established.at the reception centers; and (3) may not occurately or quickly follow the instructions of monitors. This will lead to traffic delays and delays in monitoring. SC Ex. 16 (Radford et al.), at 23; Tr. 18027-28 (Saegert).

LILCO asserts, however, that the evacuees will assist the monitors by following instructions and holding out their hands, lifting their feet, and leaning forward. LILCO Proposed Findings, at 46. However, as Dr. Saegert testified, evacuee stress will result in some evacuees not responding to those exact instructions, while other evacuees will respond slowly to such instructions. . Tr . 18027-29 (Saegert). Thus, even assuming the in-car monitoring procedure can be used, it cannot be performed nearly as rapidly as the 100 seconds per vehicle rate that LILCO anticipates.

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persistent and extensive questioning of LILCO personnel;11/ and, on occasion, aggressive behavior towards LILCO personnel.ll/ >

SC Ex. 16 (Radford et al.), at 22.

15/ Because of their anxiety and fears of radiation, it is likely that evacuees will extensively and intensively question LILCO personnel. SC Ex. 16 (Radford et al.), at 23-24. To the extent the LILCO monitor is responsive to the questions, this examination will cause delays in monitoririg. To the extent the LILCO monitor refuses to answer questions or directs evacuees only to listen to EBS messages on the radio, evacuees will feel frustrated for they will want immediate answers and will not want to wait for another EBS broadcast. Their frustration could cause them either to argue with LILCO personnel or otherwise to display some form of hostility. SC Ex. 16 (Radford et al.), at 23-24.

LILCO argues that little time will be needed to respond to - ~ ~ - - - -

questions because the evacuees will be provided with information sheets which will answer the questions of most evacuees. LILCO .

Proposed Findings, at 53. LILCO's information sheets are not a beyond the early planning stages. Tr. 17624 (Dreikorn). Thus, "

• the information sheets cannot provide the basis for findings by this Board.

ll/ Among some evacuees, there will be a sense of hostility against LILCO menitors and other personnel. This hostility could <

be manifested in a range of behavior, from verbal abuse to - '

physical abuse. SC Ex. 36 (Radford et al.), at 24; Tr. 18032 1 (Saegert); Tr, 18012-33 (Mayer). LILCO argues that the County's witnesses were unable to present evidence of aggressive behavior during the Three Mile Icland accident. LILCO Proposed Findings, '~

at 54. However, as the County witnesses explained, no one was 1.

studying such behavior during Three Mile Island, so there is no data base to draw from. Tr. 18030-31 (Saegert, Johnson).

Indeed, as established by the County witnesses, the literature identifies certain factors which increase the likelihood of hostility: the belief that the goals sought are legitimate; the appearance of deliberately impeded goals; the attribution of frustration to the environment and not to the individual seeking the goals; and previous anger at the target of aggression. In

• the case of a Shoreham emergency, the public will certainly  ;';

perceive that the goal of monitoring is legitimate. LILCO will also be seen as deliberately impeding the public's goal of

^f m& toring when it is unable to monitor the public expeditiously.

In v 'dition, blame for this frustration will clearly focus on LILCO, wnich will already be the focus of some hostility as the -

cause of the threat to their safety due to LILCO's operation of a .

plant which most people do not want. SC Ex. 16 (Radford et al.),

(footnote continued) 4

- 103 -

1 I

i 166. 'LILCO argued that no one will exhibit " aberrant, irra-I tional, antisocial or panic behavior." LILCO Ex. 1 (Crocker et al.), at 25-26. This is a mischaracterization of County ]

i witnesses' testimony. Their position is that in an actual emer- .

gency at.Shoreham, most of the public would behave in ways con-  !

4 sistent with their situational perceptions ot risk. SC Ex. 16 I (Radford et al.), at 25. In the event of a Shoreham accident associated with a monitoring advisory. such perceptions will include a fear of radiation, the knowledge that some people had been exposed to radiation (a condition that cannot be detected without monitoring), and a belief that they will be prevented from obtaining monitoring because of the limited east-west high-Way system. Such perceptions will cause anxiety and hostility.

SC Ex. 16 (Radford et al.), at 25-26.11/

footnote continued from previous page) i at 24-25. Under these criteria, we find the likelihocd of I hostility is high.

ll/ The efforts of LILCO witness Mileti to make a distinction between community-wide mass emergency fires and tires in buildings actually support the position of Interveners. LILCO likens a Shoreham accident to a community wide fire where people generally respond altruistically, rather than to a building fire, where people often do not. LILCO Ex. 1 (Crocker et al.), at 27-

29. However, even assuming the distinction between mass l emergency fires and building fires is valid, LILCO ignores the

! fact that, in the event of a Shoreham accident, the circumstances on Long Island would resemble a building fire. In particular, Long Island is a confined place with a limited number of evacuation routes which can easily become impassable. SC Ex. 16 (Rad, ford et al.), at 26-27. Thus, in the event of an accident at Shoreham, the situation on Long Island would be most analogous to a building fire, the exact situation in which LILCO witness Mileti would expect panic and non-altruistic behavior. Id.

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e 167. This Board cannot determine precisely the degree to which behavioral concerns or traffic delays might increase 3.

LILCO's 100-second estimate. What is clear to us, however, is that there is persuasive evidence that these factors must be anticipated to cause delays that _ILCO's estimate appears to ,

ignore. 7 l

168. FEMA has made no findings on whether the 100 second estimate is accurate, and will be unable to judge the reception s

center facilities and procedures until an exercise is conducted.

Tr. 18269-72 (Husar): Tr. 18286. 18302, 18305-06, 18463 (Keller). ,

Thus, even if we were to accept LILCO's in-vehicle monitoring procedures (which we do not), we do not have the benefit of 5 FEP.A's judgment on the time it would take to complete them.

Given the delays which will result from evacuee stress and i behavior, as well as the traffic delays which will occur at the reception center locations, we must conclude that the LILCO 100-second time estimate for monitoring is too low and cannot form the basis for our consideration of the ability of the reception ,

?

centers to monitor all arriving evacuees within about 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />.29/

79/ As the suffolk County witnesses testified, the potential for y equipment difficulties also can be expected to increase the 100- n second estimate. Tne Eberline RM-14 is particularly sensitive to ..,

operator trai..ing and experience because the measurements of $

contamination are reflected on a fluctuating needle which i provides a range of readings that the operator must allow to stabilize and mentally average in order to determine the approximate level of contamination. SC Ex. 16 (Radford et al.),

at 17-18; Tr. 17587-88 (Donaldson). The accuracy and speed at (footnote continued) s

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s

/ '{-

y

.D. -Registration.

169.- In. connection with its monitoring procedures, the L'ILCO Plan.provides for.only limited registration of evacuees a.

arriving at the reception centers. .Specifically, when a' vehicle arrives at a monitoring station, the traffic guide will record:

only the vehicle license plate number and the number of passengers:in the car. LILCO Ex. 1 (Crocker et al.), at'47. The traffic quide willfnot initially record evacuee names, destination, or other information. Tr. 17618-19-(Dreikorn);

Tr. 17708 (Watts). Such details are recorded only if an evacuee is found to be contaminated. We find this limited procedure to be inadequate.

170. Adequate registration of evacuees is important for purposes of; radiological healtn. Tr. 18274 (Keller). It is a good (radiological health practice to register those who are con-taminated so that' adequate follcw-up can be provided. Tr. 18274 (footnote continued from previous page) which the operators make this determination will decrease with  !

the increased time the operators spend at the task, the monotony of the process, and adverse environmental conditions for the measurements. SC Ex. 16 (Radford et al.), at 18.

LILCO attempts to deal with this problem by setting of the alarm on the RM-14. Thus, as described by LILCO, if the alarm is Laet At "4", every time the needie goes above 400 counts per minute,-the alarm would go off, and the individual being monitored would.be sent to the decontamination facility.

Tr. 17585-86 (Dreikorn). This procedure creates another problem,

- however, since it may result in false contamination readings which could result in overloading LILCO's decontamination facilities. Tr. 17591 (Linnemann).

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E e

(Keller). Further, it might also be necessary to contact. people who had been monitored and found uncontaminated if a question later arises as to whether they were properly monitored.

Tr. 18276-77 (Keller).

Indeed, under some scenarios, it might be important to call back people who had not been monitored properly. Tr. 18278-79 (Keller).

171. The evidence shows that LILCO's registration procedure is unique among all the FEMA Region II emergency plans: every other plan calls for the registration of the names of all evacuees. Tr. 18279-80 (Keller). LILCO argues that its pro-cedure is sufficient because if it is necessary to contact at a l later time people who were initially determined to be " clean,"

LILCO will be able to reach those individuals by tracking down the vehicles in which they arrived through the New York Department of Motor Vehicles. LILCO Ex. 1 (Crocker et al.), at 47; Tr. 17618-19 (Dreikcin). LILCO has taken no steps to deter-mine whether its requests would or could be implemented, or how timely responses to its requests would be; nor has LILCO had any contact with the New York State Department of Motor Vehicles on the matter. There is thus no letter of agreement with that Department. Tr. 17619, 17706 (Dreikorn). We do not consider a procedure based on speculation to be adequate.

- 107 -

172. Given LILCO's failure to record basic information about all arriving evacuees, and given the evider.ce that all other plans record such data, we find that its registration plan provides no reasonable assurance that the public health and safety will be protected.

l E. Decontamination 173. Individuals who are found to be contaminated will be sent to a decontamination trailer where they will be monitored once again.EE/ After this re-monitoring, each contaminated individual will remove his or her contaminated clothing, and the skin underneath the clothing will be monitored once again. If the skin is not contaminated, LILCO will attempt no further decontamination. If there is localized contamination on the skin, the evacuee will be instructed to wash the contaminated area in one of the decontamination trailer sinks. LILCO Ex. 1 (Crocker et al.), Att. R, at 10. If the contamination is not localized, the evacuee will be instructed to shower. People who have been decontaminated will then be issued paper robes and paper slippers, while those evacuees who have thyroid or unremov-able skin contamination will be instructed to transport them-selves to a hospital. LILCO Ex. 1 (Crocker et al.), at EE/ The decontamination locations are small trailers, twenty yards long and three yards wide, each equipped with nine sinks and 20 shower heads, as well as two small dressing rooms. LILCO Ex. 1 (Crocker et al.), Att. Q, at 29.

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~

/ 1

)

56-58. The GovernmentsLcontend that LILCO's decontamination facilities and~ procedures are inadequate. We agree.81/

1 174.- The LILCO witnesses admit that LILCO's decontamination I facilities would be adequate for showering if only a limited portion of the'EPZ were contaminated. Tr. 17692 (Watts). In L particular, in.a 12-hour. period, LILCO can only process approxi-i mately 3,800 people through full decontamination by showering.

Tr. 17693'(Watts).' If "large numbers" of people require decon-tamination by showering, LILCO could not-provide decontamination services, but, instead, would advise that people proceed to their destination, take showers, and bag their clothing. LILCO Ex. 1

'(Crocker et al.), at 59.

175. LILCO estimates that only 3,200 people will require decontamination by showering. LILCO Ex. 1 (Crocker et al.), at

5. This estimate falls far short of the number of people who may require showering in the event of a Shoreham accident.32/

El/ As with all other aspects of the reception centers scheme, FEMA will be unable to make findings as to the adequacy of the decontamination facilities and procedures until an exercise is performed. Tr. 18286 (Keller). However, as we discuss below, even without an exercise, it appears that the LILCO decontamination procedures are inadequate.

32/ LILCO's estimate of 3,200 evacuees which require showering is based on the assumption that 32,000 evacuees -(the 20% planning basis) are contaminated, and that 10% of those who are contaminated would need a full shower. LILCO Proposed Findings, at 69. As discussed previously,.a 20% planning basis is

-inadequate. Moreover, the LILCO estimate that 10% of those who arrive at the reception centers will require showering is based on the decontamination experience in cases of on-site (footnote continued)

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L___:_____________

Specifically, during a Shoreham accident with a plume with air-borne radioactivity, wind changes may cause the plume to cover a large segment of the EPZ. SC Ex. 13 (Cole et al.), at 54-55.

Clothing will not protect the face,-hands, hair, or any other exposed part of any individual exposed to the plume, from contamination. Tr. 17687-88 (Linnemann). Each of these exposed parts would therefore require decontamination by washing. Id.

If the hair is contaminated, which will be the case for all those who are exposed to the plume and not wearing hats, it is highly likely that they are going to need to shampoo. Tr. 18403-04 (Keller). Although shampooing need not be done in the shower, people would likely insist that it be done by showering. In addition, people who have been identified as being contaminated will be extremely anxious, and will therefore not be satisfied with anything less than what they perceive to be full decontami-nation procedures -- i.e., a shower. SC Ex. 16 (Radford et al.),

at 31.83/ t

]

(footnote continued from previous page) contamination. LILCO Ex. 1 (Crocker et al.) at 57. As LILCO witness Linnemann admits, he is not familiar with any studies concerning the number of people who would require showering in i the event of a nuclear power plant accident; nor is he familiar with any studies of who would require showering in the event of l j

an accident at Shoreham. Tr. 17690 (Linnemann).

83/ We note that the one individual who had contamination in his hair after the Ginna incident was decontaminated by showering.

Tr. 17684 (Crocker).

110 -

f 176.. Thus, decontamination may take much longer to complete since nearly all the evacuees identified as contaminated may insist on showering. This,-in turn, would result in very long delays in the decontamination process because of LILCO's limited showering facilities. SC Ex. 16 (Radford et al.), at 30.

Indeed, as established by the State's witness, Dr. Hartgen, with l respect to showering at the Roslyn facility,.at a contamination l

l rate of just 5% of the EPZ population, the line for showers after 1

12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> would be 720 persons long and would require an additional 9.1 hours1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> to dissipate. NY Ex. 5 (Hartgen and i Millspaugh), at 68.$1/ Such de2ays in providing decontamination may result in increased health risks. Egg Section III.F, below.

1 i

177. We also find that LILCO's back-up decontamination' procedure of advising people to report to their destinations, i

take showers, and bag their clothing is tantamount to no decontamination procedure. LILCO atterapts to justify this lack of planning by arguing that the regulations call for only limited planning concerning decontamination. LILCO Proposed Findings, at

68. However, the Appeal Board has unambiguously held that decontamination services are within the range of protective Ed/ The testimony of Dr. Hartqen also established that at a 3%

demand rate, the line for showers at the Bellmore facility would be 432 persons after 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. This line would require an additional 5.4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> to dissipate. NY Ex. 5 (Hartgen and Millspaugh), at 71.

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L _ _ _ _ _ _ _ _ _ _

actions that must be provided to members of the public. ALAB-855, 24 NRC 792, 800. Accordingly, we find LILCO's back-up decontamination procedure to be inadequate.

178. Finally, we find that it is improper for LILCO to expect a contaminated person who cannot be decontaminated at the reception centers to drive himself to a hospital. A person told that he has contamination which cannot be removed by normal means is likely to be distraught and scared. Evacuees in that condi-tion should not be left alone and certainly should not be sent back on the road to drive in what will already be a stressful and congested environment. NY Ex. 1 (Papile et al.), at 30.

179. Given LILCO's limited ability to provide adequate or timely decontamination in the event of an accident at Shoreham, we cannot make a reasonable assurance finding on LILCO's decon-tamination facilities and procedures.

F. Adverse Health Effects

1. Radiological Health Effects 180. The dose one receives is a function not only of the severity of the release (i.e., the amount and type of radiation

, materials deposited), but also the length of time one is exposed l

l to such radioactive sources. SC Ex. 16 (Radford et al.), at

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'l .

(? _

32.EE/ 'Thus, in the event of a Shoreham accident, evacuees who

't

. (

'are con *,aminated will continue to receive I' dose of r'adiation pntili tae contamination is removed. Id. As the FEMA witnesses  ;

acknowledge, good health physics practice therefore requires'that o decontamination of any contaminated evacunes be completed as soon l

as is feasibJe; FEMA Ex. 2-(Baldwin et al.), at 7; Tr. 18265, 1 . .,

18414 (Keller)..

181. As we found previously, LILCO's monitoring procedures may fall to detect contamination'on many individuals because certain areas of the body will not be monitored. SC Ex, 16 (Redford et al.),.at 32; NY Ex. L'(Papile et al.), at 19. Such individuals will continue to receive a dose of radiation until

'the contamination is removed naturally or decays. In addition, the evidence-shown that traf0ic conditions will be such that there will be delays of many hours before'most members of the public even reach the reception centers to be_ monitored, and there'will be additional d,tlays before those fcund to be contami-El/ Any surface contamination will contribute a dose ,

proportional to the time elapsing before it is removed. If it is '

necessary to monitor evacuees at any time.after the accident,

.then prolonging this time will increase the rist of cancer,  !

especially to tissues near the body surface. Depending on the )

amount and distribution of particles released during an accident, '

surface contamination could be highly significant in comparison to the direct radiation from the plume. Thus, in some cirearastances, sur f ace contamination can be a significant factor in an individual's total dose. SC Ev. 16 (Radford et al.), at 34.

-' 113 -

nated are C4. contaminated. Again, this means greater doses for those who are contaminated. SC Ex. 16 (Radford et al.), at 32-33.

182. LILCO's tallure to detect contamination, as well as delays in detecting contamination and commencing decontamination, will have a public health impact. Radiation exposure resulting from contamination, even at low doses, will increase cancer inci-dences and other latent effects (such as genetic defects) within the population. SC Ex. 16 (Radford et al.), at 33-34.81/ There will also be increased risks of thyroid cancer from delays in monitoring. In addition, delays in thyroid monitoring and concomitant delays in treatment of thyroid contamination will result in increased thyroid cancer risks. SC Ex. 16 (Radford et al.), at 34-35.

183. The FEMA witnesses' initial testimony appeared to downplay the medical significance of failing to detect localized contamination of the body, stating that undetected localized contamination is not likely to be " medically significant." Sge FEMA Ex. 2 (Baldwin et al.), at 19, Tr. 18293 (Keller). On 8{/ For example, as established by Dr. Radford, if the initial surface contamination resulted after 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> in a five rad dose, the result of a 20-hour delay in monitoring would be a dose of about 10 rads. An increase of this amount is medically significant and could increase cancer incidences as much as a 3.5%. Similarly, if the initial surface contamination resulted after 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> in a 10-rad dose, the result of a 20-hour delay in L nonitoring will be a dose c f about 20 rads. This increased dose would cause a 7% increase in subsequent cancer risks. SC Ex. 1 (Radford et al.), at 34.

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cross-examination, however, Mr. Keller testified that by

" medically significant" he was referring to immediately discerna-ble physical-injury. Tr. 18294 (Keller). Indeed, Mr. Keller admitted that there were in':reased chances of cancer if even low levels of radiation were left on the body over time. See Tr. 18295-96 (Keller).

184. LILCO's witness Linnemann testified that the health effects resulting from a delay in monitoring and decontamination will be insignificant. LILCO Ex. 1 (Crocker et al.), at 38-39.

We find, however, that this testimony is not credible because it is based on calculations which atlume exposure levels that are far too low, resulting in calculations of the low health risks associated with delay. SC Ex. 16 (Radford et al.), at 35.

Specifically, the LILCO calculations are based on the scenario used at the February 1986, exercise. LILCO Ex. 1 (Crocker et al.), at 38. As FEMA has acknowledged, however, the exercise scenario did not include a very high release of particulate.

Tr. 18414 (Keller). Indeed, there were less particulate

" released" in the exercise scenario than were released at TMI, an accident with a small particulate release. Tr. 18414 (Keller).

If one assumes more significant doses from particulate contamination (which doses are within the range contemplated by NUREG 0654), then monitoring and decontamination delays will clearly cause an increased risk of cancer. SC Ex. 16 (Radford I et al.), at 35.

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185. For the reasons stated above, we find that LILCO's

- inadequate monitoring techniquesf-- as well.as delays in monitor-ing and decontamination which will result from traffic congestion, inadequate staffing, or other. reasons -- will result

- in increased radiological health risks. .Thus, we cannot. find that.the current reception center plan provides reasonable assur-ance that public safety will be protected.

2. Oth'er Adverse Health Effects 186. There are'other adverse health effects which will

. result from implementation of LILCO's reception center plan. One deficiency in LILCO's Plan is that it does not provide for trained medical personnel to be present at the reception center sites. It is obvious that when large numbers of people converge at one location, some are going to require medical treatment.

The LILCO Plan provides for none. LILCO's own witness, Dr. Linnemann, has acknowledged that there should be a first aid facility at each reception center as well as trained medical personnel. SC Ex. 16 (Radford et al.), at 36. In fact, most emergency plans provide for trained health personnel (such as

' Emergency Medical Technicians). Tr. 18429, 18479 (Keller). The

~ result of the lack of medical personnel and first aid facilities at the.LILCO reception centers means that the sick will get more gravely ill, their difficulties may affect others, and stress

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will be increased. SC Ex. 16 (Radford et al.), at 36-37. We therefore find the lack of adequate medical personnel at each facility to be a deficiency.82/

187. LILCO's Plan and procedures are also deficient beu use they make no provisions for adequate sanitary facilities for evacuees. At Bellmore and Roslyn especially, such facilities are very limited and will be unable to handle the thousands of people who will be arriving at those sites. SC Ex. 16 (Radford et al.)

at 37; see SC Ex. 12 (only 11 toilets at the Bellmore facility);

Tr. 17,673 (Crocker). LILCO attempts to diminish this concern by arguing that it can obtain sufficient portable toilets on an ad hoc basis at the time of an accident. LILCO Ex. 1 (Crocker et al.), at 55. We find this to be inadequate. LILCO has no agreement to obtain such sanitary facilities; thus there is no assurance that they can be supplied in a timely manner.

SC Ex. 16 (Radford et al.), at 37.

81/ LILCO argues that when the Red Cross establishes a relocation center, it commonly provides trained health personnel.

LILCO Proposal Findings, at 57; see Tr. 18046 (Mayer). Whatever implication LILCO would have us draw from this is irrelevant because the Red Cross will not be at LILCO's reception centers.

Tr. 18302 (Husar, Keller). Contrary to LILCO's assertion that people will not need medical attention at the reception centers because they will be there for only about 15 minutes (LILCO Proposed Findings,'at 58), in fact people will be waiting in queues for hours both inside and directly outside the reception centers. Even Mr. Lieberman, LILCO's traffic expert, admits that such queues will exist. See Section V.C, below. Furthermore, people who require decontamination may have to stay at the l reception centers even longer. Egg SC Ex. 16 (Radford et al.),

at 30; NY Ex. 5 (Hartgen and Millspaugh), at 68, 71.

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188. The Plan also has no provision to supply people with food or water at the reception centers. This deficiency could cause harm for the elderly, infants or those'who are infirm because of diabetes or some similar chronic condition. SC Ex. 16 (Radford et al.), at 36. Because some people may be waiting many hours for monitoring and many more for decontamination, this omission fails to provide adequate protection to the public.

189. . Finally, the Plan makes inadequate provisions for, sheltering people in the event'of bad weather. In particular, f LILCO plans to use the Roslyn warehouse and the Hicksville and Bellmore transportation buildings for sheltering those evacuees wholare waiting for decontamination. LILCO Ex. 1 (Crocker et al.), Att. P at 8. However, the Roslyn warehouse is filled with' shelving, thus' severely restricting available space. NY Ex. 5 (Hartgen and Millspaugh), at 68. Likewise, the Hicksville and L Bellmore transportation buildings contain heavy equipment, j i

hydraulic lifts, oil drums and other material. NY Ex. 1 (Papile et al.), .at 29; NY Ex. 5 (Hartgen and Millspaugh), at 65;

.Tr. 17667-68 (Crocker). Although LILCO states that heavy equipment in the garage will be removed, the Plan provides no assurance that this will be done. See Tr. 17669 (Crocker).

Thus, there is no assurance that the reception centers will have sufficient space to shelter people waiting for decontamination.  ;

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1 G.- Conclusion on Monitoring, Decontamination and Health Effects 190. In light of the' foregoing evidence, we conclude that LILCO has not. met ~its burden on this issue. 'The monitoring pro- 3 1

cedures presently proposed by LILCO will not detect all surfaceL contamination and will not detect thyroid contamination.

Monitoring will also take'more time than LILCO. assumes. In

- addition, for the reasons stated above, LILCO's registration and

' decontamination procedures are inadequate. We find that the failuretto provide adequate monitoring and decontamination will have negative public health consequences. Further negative

- health consequences will result from LILCO's failure to provide medical personnel, sanitary facilities, food, water-and shelter.-

Accordingly, there is no reasonable assurance adequate measures to protect.the public can and will be taken at the. reception centers. 10 CFR SS 50.47(a)(1), 50.47(b)(10).

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l IV. EVACUATION SHADOW

.. A . - Introduction l

~

191.1 The evacuation shadow phenomenon and its effects have been. extensively litigated in previous Shoreham emergency plan-ning proceedings.EEI In our PID, we found that some evacuation L , Eshadow phenomenon would likely' occur in the event of a serious

-radiological; emergency at'Shoreham. PID, 21.NRC'at 670. "We also p

Efound that.if for any reason emergency information.was inadequate, a'large excess. evacuation on Long Island could

j materialize.. Id. The PID did not take.into account the effects L of the location of~the reception centers since, when the record-closed, LILCO did not have a designated reception center. See Section I.C above. The issue here, therefore, is a narrow inquiry related to the location of the three LILCO reception centers.

l 88/E'The evacuation shadow phenomenon refers to the tendency of L

pynple outside the defined zone of risk to evacuate even though they are.not advised to do so. For instance, in the event of a radiological emergency, some or all of the residents of the 10-mile plume exposure pathway EPZ may be advised to evacuate; however, other people, inside or outside the EPZ who are not advised to do so cay.also perceive themselves to be at risk and

'thus " voluntarily" evacuate. SC Ex. 15 (Johnson and Saegert),

at 9; LILCO Ex. 1 (Crocker et al.), at 12.

The evacuation shadow phenomenon was observed at TMI, where

. the protective action advisory issued should have precipitated the evacuation of only approximately 2500 people. LILCO Ex. 11.

Post-accident surveys established that as many as 200,000 people within a 25-mile radius of the damaged TMI reactor actually evacuated. SC Ex. 15 (Johnson and Saegert), at 9-10. ,

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192. Specifically, the proposed reception centers are loca-ted a substantial distance (approximately 40 miles) to the west l of the Shoreham plant. SC Ex. 15 (Johnson and Saegert), at 8.

The issue before us is whether the location of the reception centers is an additional factor making an evacuation shadow more likely, and, furthermore, whether the location of the reception centers will stimulate a larger evacuation shadow than would occur if the reception centers were closer to the plant. SC Ex. 15 (Johnson and Saegert), at 8; Tr. 18000 (Saegert).

^

193. A related sub-issue is whether locating reception cen-ters in densely populated residential areas, as LILCO has done, creates a perception of risk in the minds of local residents which will influence them to evacuate the communities surrounding the 'eception center sites. SC Ex. 15 (Johnson and Saegert), at 17-20.E9/

B. The Effect of the Distance of the Reception Centers From the EPZ 194. The County's witnesses testified that placing the reception centers at a substantial distance from the plant, as LILCO has done, will be a factor in causing the evacuation shadow and could in fact increase the magnitude ut the shadow over what

! E9/ The County presented James H. Johnson, Jr. and Susan C.

) Saegert. LILCO presented Dennis S. Mileti, Michael K. Lindell and Roger E. Linnemann. No other party presented witnesses on the issue.

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it might'be if the reception centers were closer. ' Evacuees seek-ing.to escape a disaster attempt to find a safe place of refuge,

. generally considered to be one which puts a reasonable distance between the evacuees and the' source of danger. SC Ex. 15

.(Johnson and Saegert), at 10. With the reception centers located 40 miles west of the plant, many of the people in the area between the plant and the reception centers will perceive that their communities are unsafe because the designated safe ~ refuge centers are located still-further from the source of' danger.

14., at 12. The result will be a greater tendency to evacuate, and an expansion of the. geographic scope of the evacuation shadow phenomenon. Id., at 11-12.22/

20/. The County did not claim that it is necessarily wrong to locate a reception center 30 miles or more from the EPZ. Indeed, given the distances people will need to travel before-they feel safe (ggg.below), there may be some advantages to locating a reception. center-at such'a distance. Tr. 18000 (Saegert).

Nevertheless, there may also be certain consequences, such as an enhanced-evacuation shadow, which must be taken into account in planning. Tr. 18002-03 (Saegert). LILCO has not done so.

LILCO missed the point of the County's argument. It is apparent from LILCO's testimony that LILCO construed the issue to be an attack on the distance of the reception centers from the Shoreham EPZ. Accordingly, LILCO introduced largely irrelevant evidence,,such as data that other reception centers are located at equal or greater distances from the EPZ. LILCO Ex. 1 (Crocker et al.), at 24 and Att. K. Such evidence does not address the real issue -- whether LILCO has taken into account the consequences of the locat' ion of its reception centers.

i Similarly, in its Proposed Findings, LILCO states that it I

was undisputed that other nuclear power plants have reception centers as far away from the plants as at Shoreham, and argues

, from this that "[o]bviously there is nothing categorically wrong with a reception center 40 miles from the power plant." LILCO Proposed Findings, at 34. The County did not claim that the selection of sites 40 miles from the Shoreham reactor was categorically wrong. Rather, it argued that this selection would (footnote continued)

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4 s

195. The County's witnesses explained that spatial factors-are important in determining behavior.in a radiological emergency. Such emergencies do not provide the environmental'  !

cues,.such as flood waters'or noxious gases, which.would other- l

]

wise provide direct sensory evidence that geographically defines

.the. zone of risk. SC Ex.'15l(Johnson and Saegert), at 11; see i Tr.~17522-23 (Lindell). In light of the. absence of direct.sen- j sory evidence, the location of the reception centers will become a primary factor.in defining the zone of risk. SC Ex. 15 (Johnsoa and Saegert),-at 11.

196. LILCO attached no significance to the absence of envi-ronmental cues. While conceding that some voluntary evacuation would occur (LILCO Ex. 1 '(Crocker et al.), at 18), LILCO's wit-nesses argued that risk zones are defined by emergency information, not by the geographical positioning of the reception centers, and that.the information disseminated by LILCO would minimize any evacuation shadow effects. ]@., at 25. They fur-ther argued that, in any' event, the degree of shadow evacuation will drop.off " dramatically" as distance increases from the plant. Id.91/ We find LILCO's testimony unpersuasive.

(footnote continued from previous page) produce certain consequences which LILCO failed to address in its emergency planning.

91/ A third LILCO argument that the public will consider l reception centers to be solutions to the problem is conclusory and is irrelevant to how the location of the centers will affect their perception of the risk of the area between the plant and the centers. See LILCO Ex. 1 (Crocker et al.), at 25.

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197. 'First, LILCO's argument ignores research which shows

'that spatial considerations, such as distance from a nuclear hazard, are an important determinant of human behavior in the event of'a nuclear emergency. SC Ex. 15 (Johnsgn and Saegert),

at 13. LILCO failedito provide any persuasive evidence that these spatial factors will be negated by emergency information.

Indeed, it has been' demonstrated that people perceive the. zone of L0 risk in any radiological emergency to be far-reaching.- LILCO Ex. 9, at 59; LILCO Ex. 10, at 7-8; LILCO.Ex. 11, at 2.- Data from TMI confirm that half of all evacuees chose destinations between 45 and 90 miles from TMI, thereby defining the zone of perceptual desirability.92/ LILCO Ex. 9, at 59; Tr. 17883, 17887-88 (Johnson). While Dr. Lindell testified that people outside the 10-mile EPZ.will generally perceive themselves to be safe (see LILCO Ex. 1 (Crocker et al.), at 25), his testimony is refuted by his own research which shows that people responding to radiation hazards perceive a need to travel a far greater dis-tance to reach a safe location. LILCO Ex. 6, at 464.

198. In addition, LILCO's dismissal of spatial considera-tions assumes the issuance of good emergency information by LILCO, as did our PID. But, Dr. Lindell himself has' observed that emergency information by itself will not control over- )

~l response by the public. See LILCO Ex. 6, at 466. Furthermore, 92/ Dr.. Johnson defined the " zone of perceptual desirability" as a zone that is perceived by the evacuees to be relatively safe. j Tr. 17883 (Johnson).

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public. obedience to emergency information requ. ires -- among other

' things -- a credible source of information. SC Ex. 15 (Johnson )

and Saegert), at 13. -Dr..Lindell' agrees. juut Sect ion II . C . 3. e ,

above. But, LILCO has very low credibility on Long Island. Ee g '

- Sect' ion II.C'.3.e,.above. LILCO's lack of credibility will l . . .

L diminish the effectiveness of the information it intends to R

~ disseminate, making the geographic placement.of the reception centers'even more significant in shaping the public's perception i- . of the zone of risk. SC Ex. 15 (Johnson and Saegert), at 13;

~ Tr. 18010 (Johnson).23/

199. LILCO also argues that the County's contention that the location of the reception centers will define the zone of risk.is an attempt to expand the plume EPZ to 40 miles and thus is an attack on the NRC's regulations. LILCO Proposed Findings, E at 36-37. We have previously rejected this argument. Memorandum and Order (Ruling on LILCO's Motion to Strike the Testimony of Johnson and Saegert) (June 10, 1987), at 3 ("LILCO overstates the case when it asserts that ~ the testimony represents an attempt to i expand the EPZ to 40. miles . . . ."). LILCO thus mischar-acterizes the County's argument and ignores our earlier ruling.

23/. Testimony offered by.LILCO on the apparent absence of an l

- evacuation shadow response'by the population around Chernobyl was

,. not helpful in deciding this issue. The evidence presented by

- LILCO and the Governments was too sketchy to allow us to draw any conclusions on the basis of the Chernobyl accident. Furthermore, it is not possible to draw useful conclusions from human behavior in that accident in light of the different cultures, political systema. and information available to the public. See LILCO Ex. 1 (Crocker et al.), at 22.

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. _ . _ .m.

'200. We find'that.the absence of environmental cues will

- make the location of the reception centers a very important fac-tor in shaping.the public's perception of the zone of risk.

Because the reception centers'will be 30~ miles west of the EPZ's i

Western boundary,.we find it probable that the public will view the zone of risk as encompassing an area well beyond the 10-mile EPZ. There is no reasonable assurance that these spatial consid -

erations will be outweighed by LILCO's emergency information.

Thus, it appears that the spatial factors cited by the County will likely contribute to a significant amount of voluntary evacuation in the event of a radiological emergency at Shoreham.24/

201. The result of a significant evacuation shadow phe-nomenon will be an increase in the number of people. evacuating, and consequently, an increase in evacuees competing for the lim-ited east-west roadway capacity. SC Ex. 15 (Johnson and AA/ LILCO also offered-testimony that the data from Three Mile Island do not support the thesis that the location of the reception centers would define the contours of the evacuation shadow. LILCO Ex. 1-(Crocker et al.), at 25. LILCO relied on the fact that while the main relocation center at TMI was approximately~10 miles from the damaged reactor, there was evacuation from beyond that point. Id.; sgg LILCO Proposed Findings, at 36-37.

The County's witnesses persuasively argued that the TMI reception center experience is an inappropriate basis for compar-l ison since at TMI, the reception center was so close to the reactor that it was within the perceived zone of danger.

Tr. 18004 (Johnscn). Even Dr. Lindell's own research demon-strates that virtually no one believes that he or she is safe at

-a distance of only 10 miles from a nuclear accident. LILCO Ex. 6, at 462, Fig. 3.

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Saegert), at 12; NY Ex.-5 (Hartgen and Millspaugh), at 19. The added congestion on the evacuation routes will delay EPZ evacuees in their efforts to reach the reception centers, which may, in turn, result in adverse health consequences for those evacuees requiring decontamination. SC Ex. 15 (Johnson and Saegert), at

6. LILCO has failed to account for the consequences of the increased evacuation shadow resulting from the location of its reception centers.

202. Thus, based on the entire record, we find that spatial considerations will influence both the likelihood and the size of an evacuation shadow at Shoreham. Accordingly, we find that LILCO has failed to meet its burden on this issue.

C. Evacuation From Communities Around The Reception Centgrs 203. LILCO's three reception centers are situated in densely populated residential neighborhoods and commercial areas.

See SC Ex. 15 (Johnson and Saegert), at 18; NY Ex. 5 (Hartgen and Millspaugh), Atts. 3-6. At issue before us is whether, in the event of an accident at Shoreham, pecole from the communities surrounding the reception centers would perceive the reception centers themselves as a threat, and thus would evacuate from those areas. SC Ex. 15 (Johnson and Saegert), at 17. This l

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. localized evacuation would have the effect of exacerbating con-gestion around.the reception centers, thereby further delaying and. complicating the arrival of EPZ evacuees. Id., at 18.21/

204. The County presented testimony that'in'the event of an accident in whien thousands of people will-lue directed to the reception centers for monitoring and decontamination, many local residents will perceive the sites to be locally unwanted' land-uses (" LULUS"). SC Ex. 15 (Johnson and Saegert), at 17-18.

Adverse public reaction to LULUS results largely from the per-ceived negative external effects on the health and safety of local residents. It is likely that many of the local residents will perceive such a threat to their health and safety and will opt to evacuate. Id., at 18. These additional evacuees will utilize roads and intersections over which evacuees attemptir.g to reach'the reception centers must travel. Id., at 19. The addi-tional demand on the capacity of the evacuation routes may prove significant in light of the dense population of the areas sur-rounding the reception centers. SC Ex. 15 (Johnson and Saegert),

at 18-19; NY Ex. 5 (Hartgen and Millspaugh), Atts. 3-6.

j 11/ The County presented evidence that survey data showed tnat l even before LILCO designated the three operaticns centers as

) reception centers, much of the population in the surrounding communities planned to evacuate in the event of a general emergency at Shoreham. SC Ex. 15 (Johnson and Saegert), at 18, t

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l i

205. LILCO contested the County's testimony with the glib I response that local residents are as likely to perceive the reception centsrs as " solutions," as they are to view them as l problems. LILCO Ex. 1 (Crocker et al.), at 23. LILCO further

. argues that the proposition that people will flee the vicinities.  !

of the reception centers is not supported by actual experience.

Id. .

i 206. We are not persuaded by LILCO's argument. The recep-tion centers may certainly be a " solution" for evacuees, but LILCO has not explained why local residents would have positive l attitudes toward them; nor does such explanation appear possible.

Egg SC Ex. 15 (Johnson and Saegert), at 19-20.91/

207. The County's witnesses argued persuasively that LILCO failed to take into account the consequences of the likely evacu-ation of residents in the communities surrounding the reception centers. We find LILCO's assertion that these local residents may look upon the reception centers as " solutions" rather than as hazards to be untenable and insupportable. Accordingly, we must find once again that LILCO has failed to teet its burden on this 1

issue.

l 95/ LILCO's testimony regarding the experience at Love Canal and l Times Beach (see LILCO Ex. 1 (Crocker et al.), at 23) misses the  !

' point. While " authoritative information" may have been necessary l at those locations before evacuation commenced, Nassau County

~

residents who awaken to find their neighborhoods the focus of an evacuation and decontamination project will need no further confirmati6n of the fact that the Ersa is potentially hazardous. ,

SC Ex. 15 (Johnson and Saegert), at 19-20.  !

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V. . TRAFFIC AND,RECEPTIQN CENTER CAPACITY ISSUES A. Issue L

208. As noted above, an announcement by LILCO that an acci-

~

dent has occurred and that monitoring is advisable for some or all EPZ residents will generate a large volume of evacuation j I

traffic, from both inside and outside the EPZ, attempting to f reach the three reception centers. See Section II.C.3, above.

This traffic will also include persons who may not seek monitoring but who seek shelter and thus must alco report to the f reception centers. All of this traffic will travel west on certain major east-west routes from Suffolk County into Nassau l

Co9nty. It will then exit those routes and travel along various I non-limited-access roads and streets to the reception centers.

Egg LILCO Ex. 1 (Crocker et al.), Att. M, at 1-14.

209. This monitoring-seeking traffic, added to other evacu-ating and background traffic already on the roads, will place heavy demands on the capacity of the road system in Nassau en.d ,

l Suffolk Counties. The issue we address here is whether such j conditions will so impede access to the reception centers so as to make them inadeguate to serve as reception centers. In i

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addressing this issue, we will also review whether the reception centers themselves have sufficient capacity to monitor all arriv-ing evacuees within the time constraints of Section J.12.91/ 1 210. The Governments argue that the high traffic demands on the already-constrained road system within Suffolk and Nassau Counties will not be limited to traffic from within the EPZ, and will result in substantial traffic congestion on the roads lead-ing to the reception centers. This congestion would cause long traffic backups, with many of the intersections and streets in the a<rea becoming overloaded. As a result, people trying to reach the reception centers for the purpose of being monitored will not be able to do so within the approximately 12-hour period specified by Section J.12. NY Ex. 5 (Hartgen and Millspaugh), at 7.

91/ We reject LILCO's argument that its burden on this issue is

" light." LILCO Proposed Findings, at 71 n.59. The Appeal Board, in remanding this matter to us, explicitly recognized the importance of the accessibility of the reception centers to our evaluation of their adequacy. ALAB-832, 23 NRC at 161-62. Read in conjunction with the Section J.12 requirement that all arriving evacuees must be monitored within about 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />, LILCO's burden is to demonstrate that this requirement can be met and will not be impeded by traffic conditions. As explained by

, the Appeal Board, this is a regulatory requirement. The fact that adverse health effects may result from de3ays in detecting contamination (see Secticn III.F, above), reinforces our f determination that LILCO's burden on this issue is the same as for the other issues we have addressed related to the public health and safety.

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i 211. 'LILCO argues'that traffic congestion is not an issue because, in virtually all cases, the capacity of the roads is-more than the capacity of'the reception centers. Therefore, the roads haveJsufficient' capacity to keep the reception centers cont'inually supplied with evacuees. Although_ conceding that the reception centers are the bottlenecks in the. system,:LILCO also concludes that the' resources it has. devoted to providing monitor-p' ing services st each of the reception centers (; total of 63 monitoring st&tions, each manned by two monitors), will permit LILCO to process over 30% of the EPZ population within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> of the' arrival of the first evacues. LILCO Ex. 1 (Crocker et al.), at 32. 1 212. In the Governments view, however, LILCO's estimates of the capacities of the reception centers are based on serious n underestimates of the time required to monitor evacuees and of the number of people likely to travel to the reception centers.

Furthermore, LILCO's estimates do noc take into account other factors that will restrict the flow of traffic through the recep-tion-centers. Egg NY Ex. 5 (Hartgen and Millspaugh), at 8, 55-56.98/

98/. LYLCO offered the testimony of Edward B. Lieberman. The State of New York's witnesses were David T. Hartgen and Robert C.

Millspaugh. Thomas ~Urbanik II testified on behalf of the NRC  ?

Staff. Suffolk County offered the testimony of James H. Johnson, Jr. and Susan C. Saegert on one of the issues addressed here j (route deviation). There were no FEMA findings or testimony on the capacities of the reception centers or the roads.

The Board has reviewed the testimony and qualifications of (footnote continued)

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213. For reasons described below, we conclude that LILCO has failed to demonstrate that it has planned adequately for the traffic-related challenges that may reasonably be expected to arise in a Shoreham emergency.

1 I

B. .Backaround 214. More than any other issue in this proceeding, the

" traffic" issue has been in a state of flux. During the course-of the proceeding, LILCO offered three separate reports by its consultant, KLD Associates Inc. ("KLD"),12/ analyzing the capaci- I ties of the roads and the reception centers. The first KLD report, TR-192, was provided by LILCO at the commencement of discovery. TR-192 reported the results of an assignment process by which traffic from the various EPZ subzones was assigned to specific routes leading to speciric reception centers. TR-192 also contained certain preliminary capacity analyses and sug-gested traffic control strategies. See LILCO Ex. 1 (Crocker et al.), at 30 and Att. M.

(footnote continued from previous page) all the witnesses. See NY Ex. 5 (Hartgen and Millspaugh), i Atts, 1, 2; LILCO Ex. 1 (Crocker et al.), Att. C; NRC Staff Ex. 3 (Urbanik), resume attached; SC Ex. 15 (Cole et al.), Atts. 2, 3.

We find that they were generally familiar with, and qualified to testify about, the issues raised by the parties.

11/ LILCO's witness, Mr. Lieberman, is the president of KLD. j i

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5 r ' t 215. 'When LILCO f.iled its initial written testimony, it

' revealed for the first time a second report, TR-201, which anal -

yzed the capacities of'the intersections surrounding the recep-tion centers., TR-201 primarily examined a base case of an evacu-ation of the entire-EPZ, with 30% of that population. traveling to the recepti6n centers. TR-201 concluded that there was suffi-t cient capacity on the roada to accommodate this 30% scenario.

Egg LILCO Ex. 1 (Crocker et al.),. at 30-31 and Att. S.

216. . Several weeks later, LILCO issued yet another report, TR-201A, which purported to be a refinement of TR-201,100/

TR-201A analyzed the same 30% base case as TR-201, and again found that there was sufficient capacity on the roads to accommo-date the demand aseumed in the base case. Egg LILCO Ex. 1 (Crocker et al.), Att. T.

217. I.n light of thece changes, the other parties and the

< Board were confronted with a frequently moving target. To address each new report, the State's witnesses conducted addi-tional reviews of LILCO's data, and twice filed supplemental and rebuttal testimony. In response to this additional State testimony, LILCO twice filed its own rebuttal testimony. The NRC

- Staff &lso supplemented its initial testimony with rebuttal testimony.

S h

100/ The basic difference between the two analyses is that TR-201A incorporated certain revised input data and included some additional discussions on ramp capacities. See NY Ex. 7 (Hartgen and Millspaugh Response), at 3.

134 -

{

L LE__,__ _ _. -

h 218. In short,.the traffic and reception center capacity l ' issues have generated many' analyses and much testimony. As each' new.round of~ analyses and testimony has been submitted; some

. issues have become moot and new ones have been raised. These findings sort out-the issues, identify those of importance, and resolve them. Having completed that task, we find that LILCO has

.not. carried its burden, and we rule in favor of the Governments.

l C. Reception Center Capacities 219. LILCO's primary argument regarding the. traffic issues is that the presence or absence of congestion on the roads lead-ing to the reception centers is largely irrelevant because, in virtually'all instances, the capacity of the reception centers, not roadway capacities, will be the factor limiting LILCO's abil-ity-to service evacuees seeking monitoring or shelter. LILCO bases this conclusion on a comparison of its road capacity analy--

ses with its calculations of the capacities of the three recep-tion centers. From this comparison, LILCO has determined that the capacities of the roads are greater than the rate at which the reception centers can service evacuees. Thus, the capacity of the roads will not be the cause of any delay. LILCO Ex. 1 (Crocker et al.), at 32 and Att. T, at 26; LILCO Ex. 26 (Lieberman Rebuttal), at 12; Tr. 18519, 18711, 18738-39 (Lieberman).101/

101/ Dr. Urbanik agreed, based on Mr. Lieberman's analysis, that i (footnote continued)

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220. LILCOracknowledYes that because the reception centers are the bottleneck'in the system, queues of'some length could form at'the entrances to the reception centers. Nevertheless, LILCO' concludes that all lines will dissipate and demand will be

. serviced well within the 12-hour time limit established by Section J.12.- LILCO'Ex. 1 (Crocker.et al.), at 7 and Att. T, at l'

'26-27.102/ This conclusion assumes, of course, that only 30% of f-l- the EPZ population travels to LILCO's reception centers and that l

l LILCO monitors maintain a' monitoring. rate of 100 seconds per l vehicle. See LILCO Ex. l'(Crocker et al.),,Att. T.

221. Assuming for the moment that LILCO is correct in its.

assbrtion that the reception centers are the limiting factor in the entire system, we observe that this admission is a double-edged sword. In particular, it focuses attention on the capacity of the facilities themselves and the assumptions behind LILCO's (footnote continued from previous page) reception centers were the controlling factor in the system, but cautioned against dismissing the value of proper analysis of the road system because of " system effects" which could occur during i an evacuation. Tr. 19039 (Urb 3nik).

(

102/ Assuming a 30% arrival rate and a 100-second per-vehicle monitoring rate, LILCO calculates that evacuees would be monitored at the three reception' centers in the following times:

Receogion-Center Clear Weather Inclement Weather j

)

Hicksville 8:07 11:23 Roslyn 6:34' 9:15 Bellmore 9:43 9: 43 LILCO Ex. 1 (Crocker et al.), at 33 and Att. T, at 26-30.

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- _ _ _ _ _ - _ _ _ _ _ - _ - - _ - - _ i

capacity estimates. Thus, we will examine first LILCO's argument that, even though the reception centers are the limiting factors in the system, they have sufficient capacity to service all evac-uees within the 12-hour time limit of Section J 12. Because that assertion is premised on certain assumptions which have no sup-port in the record, we must reject it.

222. First, LILCO's calculation of capacities at the recep-tion centers is based on an assumption that it will take only 100 seconds to monitor a vehicle and all of its passengers. However, for the reasons set forth in Section III.C above, that assumption is invalid. We have found that LILCO's monitoring procedure is inadequate. Therefore, any assumed monitoring rate relying on that procedure is insupportable. Using proper procedures, a better estimate is that it will take over twice as long to moni-tor a vehicle and its occupants. See Section III.C.1, above.

Even if LILCO's procedure is used, monitoring will take longer than 100 seconds per vehicle. See Section III.C.2, above.103/

103/ Mr. Lieberman assumed that the monitoring rates provided by l LILCO for KLD's analyses were reliable, and stated that this was confirmed by his observation of a LILCO training session on June 8, 1987. See LILCO Ex. 51 (Lieberman Surrebuttal), at 6-7.

However, Mr. Lieberman is not a health physicist and does not know whether the monitoring methods used were proper or whether they were even properly implemented by LILCO monitors.

Therefore, his testimony regarding monitoring rates is of little l use. See Tr. 18583-85 (Lieberman). Dr. Urbanik has also done no I

analysis to determine whether the 100-second monitoring rate is valid. Tr. 19021 (Urbanik).

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I L_ __ - _ _ _ _ .

I 223. To the extent it takes longer than 100 seconds to monitor a vehicle and its occupants, the queues leading from the reception centers will be much longer than LILCO assumes and, j consequently, it will take longer to service them. See Tr. 19142-44 (Urbanik). Furthermore, such queues could back up into the intersections leading to the reception centers, causing further congestion. See Tr. 19011-12 (Urbanik).

224. LILCO's overly optimistic monitoring rate is not the only flawed assumption leading to inflated reception center capacity calculations. As the State's witnesses testified, traf-fic exiting each facility will encounter substantial congestion as that traffic exita the reception centers and reenters the road system. Such congestion could cause exiting traffic to back up into the facilities, thus slowing the movement of traffic through the facilities and cutting capacity further. NY Ex. 5 (Hartgen and Millspaugh), at 58-59, 65, 68, 72. NRC Staff witness Dr. Urbanik testified that such backups were possible in the absence of adequate traffic control. Tr. 18978-80, 19012-13 (Uri Tik).104/ While Mr. Lieberman testified that the effect of exiting traffic had been examined and that it could be accommo-dated without adversely affecting traffic flow (LILCO Ex. 26 (Lieberman Rebu , at 37), in fact LILCO has not sufficiently analyzed how exiting traffic can be accommodated. See l

l t

104/ The question of whether traffic control can be assumed is addressed below. i

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l

(

a.

Tr. 18978-80, 19003-05 (Urbanik).105/ This is particularly'irue for traffic exiting the Hicksville reception center. Tr. 18983-85 (Urbanik).

225. In addition, the reception centers themselves pose physical impediments which could increase the time required to move evacuees through l the reception centers, thereby decreasing

.v .

capacity. We first note that the reception centers are not

.large, especially the Bellmore and Roslyn facilities. Egg NY Ex. 5 (Hartgen and Millspaugh), Atts. 3-6. As a' result, in the

-event of a Shoreham accident, large numbers of cars could be required to move about within constricted areas. Furthermore, the facilities are not free from obstructions. Potential obstructions include employee cars and LILCO's se'rvice vehicles, which are parked normally in portions of the areas designated for L

l monitoring at all three reception centers. Egg Tr. 17422-25 l

1 (Crocker). It is unclear what provisions LILCO has made to assure that all such vehicles can be moved in time. We note, however, that LILCO did not know how many vehicles are normally 105/ We find that Mr. Lieberman's analyses of exiting traffic are based in large part on unsupported speculation. For instance, he assumes that traffic exiting from Hicksville Area. B will split, with half traveling north from the exit and half traveling south.

Thus, only half of the exiting traffic would move toward an evacuation path. Egg LILCO Ex. 26 (Lieberman Rebuttal), at 39; Tr. 18658-59 (Lieberman). This, and similar' assertions regarding traffic splits after traffic exits the Bellmore facility, is nothing more than speculation. Eeg LILCO Ex. 26 (Lieberman Rebuttal), at 42. Mr. Lieberman himself undercut the validity of his speculation, observing that one cannot predict the path of L exiting traffic, which can take any route it chooses. Tr. 18711 1

(Lieberman).

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parked in those spaces. Tr. 17422-25 (Crocker). Additional obstructions are evident at Hicksville Area B, where monitoring is to be conducted between long rows of transformers, utility poles, pipes,'and other such potential obstructions. Eeg NY Ex. 5 (Hartgen and Millspaugh), at 63 and Atts. 6, 30. In light of these conditions, a monitoring rate of 100 seconds is especially unlikely. NY Ex. 5 (Hartgen and Millspaugh), at 63.106/

226. Finally, the assertion that all traffic could be ser-viced in under 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> is based on a LILCO assumption that only 30% of the population will travel to the reception centers. As we'found above, however, substantially more people than this would seek monitoring at the reception centers in the event of a Shoreham accident. Indeed, both Mr. Lieberman and Dr. Urbanik l

conceded that if a higher demand for monitoring were assumed, it would take much longer to service the queues forming at the reception centers. Tr, 18585-89 (Lieberman); Tr. 19142-44 (Urbanik). This could extend service times far beyond the 12-I hour time period.107/ However, neither Mr. Lieberman nor LILCO 106/ The State's witnesses also testified that when they visited the Bellmore facility, there were bushes, curbs and piles of debris present which would have inhibited traffic flow through that facility. NY Ex. 5 (Hartgen and Millspaugh), at 55. While LILCO has removed those obstacles (LILCO Ex. 26 (Lieberman Rebuttal), at 36-37), we note that there are no provisions in the Plan to keep areas within the reception centers open and free of obstructions.

107/ LILCO attempted to demonstrate that even using the State's data, road capacity exceeded reception center capacity and all (footnote continued)

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1.  ;

f 1

1.

g

(.as conducted a sensitivity analysis to determine *;he ef fects on queue lengths or service times if slower monitor!.ng rates or higher deaand rates are assumed. Tr. 13589-92'(L'ieberman).

227. In. order to develop a more realistic estimate of the reception' centers' capability to handle all arriving evacuees, the State's.wj.msu s analyzed the centers' capacities using a monitoring rate of 220 seconds per vehicle and demand rates of 50% and 100% of tne EPZ population. Tne results demonstrate that

~

the time requirecsto monitor all arriving evacyees would be well over 1L hours. Ehg NY Ex. 5 (Hartgen and Millspaugh), at 61-63, 67, 70 and Atts. 27, 31, 34.108/

(footnote continued from previous page) traf fic could be serviced wit nn 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. Specifically, LILCO focused on threesintersectiorn: the Meadowbrook Parkway interchange with the Sunrise Highway, which leads to the Bellmore facility; the intersection of Route 107 and Old Country Road, which leads to the Hicksville reception center; and the intersection of Willis Avenue and the LIE east service road. We note, however, that LILCO's analyt,es were . based on assumptions that only 30% of the EPZ population would. arrive at the reception centers and that monitering would be conducted within 100 seconds per vehicle -- both ct which have oeen rejected by this Board.

If greater demand fo*c rconitoring and a slower monitoring rate were assumed, as they should have been, service rates would be much longer. Furthermore,Hwe note that Dr. Urbanik himself rejected the LILC0' analysis of the intersection of Willis Avenue and the LIE eastbound service road because the analysis was not sufficiently extensive. Esq Tr. 19063-101,.19142-44 (Urbanik).

108/ For instance, at Bellmore, assuming a 220-second scan rate and a 50% arrival rate, the State's witnesses demonstrated that after 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />, there would be a line of vehicles 37.7 lane-miles long still waiting to be serviced. This line would take 24.8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> to dissipate. Indeed, even assuming only a 100-second scan rate and a 100% arrival rate, at the end of 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> there would still be a line of 10,812 vehicles requiring 71.7 12.ne miles of road space and 21.5 additional hours of service. Egg NY Ex. 5 (Hartgen and Millspaugh), at 70 and Att. 3 4 ., Similar results (footnote continued)

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i 228. In conclusion, even if we were to agree with LILCO that the question of traffic congestion is largely academic because the reception centers themselves are the controlling factor limiting LILCO's ability to service evacuees seeking monitoring or shelter, LILCO cannot prevail since the centers do not have sufficient capacity to service all evacuees within the 12-hour time limit of Section J.12. This finding, without more, provides sufficient basis for rejecting LILCO's proposed reception center plan. We shall, nevertheless, address the issue of traffic congestion as the evidence demonstrates that the roads, too, may be the source of delays for evacuees. See Tr. 19039 (Urbanik) (traffic congestion should not be dismissed as an issue).

D. Route Capacities 229. To address the route capacity issue, we examine the analyses supporting LILCO's and the Government's positions. We start with the analyses conducted by KLD for LILCO.

(footnote continued from previous page) were found for the other reception centers. See NY Ex. 5 (Hartgen and Millspaugh), at 61-63, 67 and Atts. 27, 31. The State's analysis was based on 58 monitoring stations, which LILCO revised upward to 63 after the State's analyses were submitted.  !

Given the large queues and delay times found by the State's analyses, however, it is evident that the addition of only five monitoring stations would not substantially assist LILCO in meeting Section J.12's 12-hour time limit.

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1. KLD's Analyses 230. .In KLD TR-201 and TR-201A (and to a lesser extent TR-192),JKLD analyzed the capacities of the intersections on the '

approach routes to the three reception centers.109/ In general, KLD used computer software which_ incorporates procedures four.d in.

'the 1985 Highway Capacity Manual ("HCM"). Egg LILCO Ex. 1 (Crocker et al.), Atts. S, T. All parties accepted the HCM pro-cedures as appropriate for' estimating capacities. Egg LILCO-Ex. 1 (Crocker et al.), Atts. S, T; NY Ex. 5 ,Hartgen and Millspaugh), fat 47;-NRC Staff Ex. 3 (Urbanik), at 6. KLD's anal-yses concluded that the intersections leading to the reception centers were capable of handling-30% of the EPZ population within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />.-

231. While many intersections were analyzed, it was apparent that the parties were in agreement that there are certain critical intersections which deserve the most scrutiny.

Egg Tr. 19009 (Urbanik). These intersections are: '(1) the intersection of Willis Avenue and the LIE eastbound service road

[k9/TheState'switnessescriticizedMr.Liebermanfor concentrating only on intersections and not the links (roadway sections) between intersections. NY Ex. 5 (Hartgen and Millspaugh), at 14-15. Mr. Lieberman responded that intersections are generally the constraining factor in determining capacity and that he was aware of no mid-section blockage which would make a link between intersections the l

controlling factor. LILCO Ex. 26 (Lieberman Surrebuttal), at 6; LILCO Ex. 51 (Lieberman Rebuttal), at 10-11. We need not reach this issue here, as we reject Mr. Lieberman's analyses on other, more fundamental, grounds.

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j I

which services traffic traveling to the Roslyn reception center; (2) the intersection of Route 107 and Old Country Road which j services traffic traveling to the Hicksville reception center; ,

i and (3) the intersection of Sunrise Highway and Newbridge Road, j i

which services traffic traveling to and exiting from the Bellmore 1 i

reception center. Egg NY Ex. 5 (Hartgen and Millspaugh), at 46-47; Tr. 18986-97 (Urbanik).110/ There was also much discussion regarding the intersection of the Meadowbrook Parkway exit ramp with the Sunrise Highway, which also services the Bellmore facility. The analyses of these intersections in particular lead I

us to conclude that KLD's capacity analyses overestimate capacity {

and are flawed for the reasons set forth below.

a. > KLD Traffic Demand Assumptions 232. As previously found, it is likely that many more than 30% of the EPZ population would attempt to travel to LILCO's reception centers in the event of a Shoreham accident. See Section II, above. However, in evaluating the routes to the reception centers, TR-201 and TR-201A (KLD's two principal capa-city reports) analyzed only one scenario, in which 30% of the EPZ population traveled to LILCO's reception centers. See LILCO Ex. 1 (Crocker et al.), Atts. S, T. In so limiting its inquiry, KLD failed to consider that many people from inside and outside j 110/ The approaches to, and operation of, the first two intersections can be observed in a videotape submitted with the State's testimony. NY Ex. 5 (Hartgen and Mi]lspaugh), at 51, Att. 25.

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l ,

- _ - - - - - _ _ _ . 1

the EPZ.will likely attempt to travel to LILCO's reception centers.lll/ l Additional people from both inside and outside the EPZ will likely also attempt to evacuate (although not traveling to'the reception ~ centers), even though.not directed to'do so.

Egg Section II.C.3, above.

233. The State's witnesses testified that this additional demand for the available road capacity will cause substantial congestion and increase delays for those traveling to the recep-tion centers. Egg NY Ex. 5 (Hartgen and Millspaugh), at 19; NY.

Ex. 6 (Hartgen and Millspaugh Rebuttal), at 13-14. They demon-strated the adverse effects'of this additional demand.in their own analyses, showing that under such conditions, it will take far longer than 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />'to process the evacuating public arriv-ing at LILCO's' reception centers. Egg NY Ex. 5 (Hartgen and M111spaugh), at 38-50.

234. Mr. Lieberman argled in response that the State ~

witnesses' assumption that more than 30% of the EPZ population would travel to LILCO's reception centers was unfounded speculation. LILCO Ex. 26 (Lieberman Rebuttal), at 10-11. For reasons we have already articulated, we reject this LILCO argument. See Section II, above. In addition, Mr. Lieberman sought.to discount the effect of evacuation by people from out-111/ No sensitivity caalyses were run in TR-201 or TR-201A to determine the effect of additional evacuation traffic that could be generated as a result of the evacuation shadow or the monitoring shadow. Egg Tr. 18651-54 (Lieberman).

r

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L ___-____-____-_-___-__ _ __ _-_ ___ _ -- __ -- _ .-_ -

side the EPZ, testifying that most of the evacuation routes to the reception centers are limited access highways which evacuees will enter at or near their eastern termini. Non-EPZ evacuees, however, would be required to enter the limited access highways by way of ramps further along the highways. Because the highways will be congested, traffic from the ramps will have great diffi-culty entering the highways. As a consequence, Mr. Lieberman argued, any " shadow" traffic will largely follow the EPZ traffic.

LILCO Ex. 26 (Lieberman Rebuttal), at 11, 33.

235. This argument is unconvincing and unfounded. First, it is apparent that many evacuees from the EPZ, especially those from the densely populated western sections, will leave the EPZ on non-limited access highways and travel on them for some dis-tance before entering the limited access highways. On the non-limited access portion of their travels, there will be signifi-cant mixing of EPZ and non-EPZ traffic, both of which will attempt to enter the limited access highways at the same point.

Tr. 18654-56 (Lieberman); NY Ex. 7 (Hartgen and Millspaugh Response), at 11. This will result in delays for EPZ evacuees.

Tr. 18656-57 (Lieberman).

236. Furthermore, since many non-EPZ evacuees are closer to the limited access highways than EPZ evacuees and can therefore l

mobilize more quickly, significant numbers of non-EPZ evacuees j will be able to reach the limited access highways before EPZ

- 14E -

evacuees. See NY Ex. 7 (Hartgen and Millspaugh Response), at 11; LILCO Ex. 1 (Crocker et al.), Att. T, at Fig. 2.2. Finally, even when non-EPZ evacuees will be required to enter the limited access highways by ramps, they will force themselves onto the highways, thus slowing the flow even further. NY Ex. 7 (Hartgen and Millspaugh), at 11.

237. Presumably for these reasons, Mr. Lieberman appeared to back away from his initial position on this issue and conceded that non-EPZ traffic could cause significant delays. See LILCO Ex. 51 (Lieberman Surrebuttal), at 5. We agree, and the State of New York's analyses bear this out. Ege below. Accordingly, we find that KLD's capacity analyses did not evaluate realistic traffic demand and therefore are not valid.

b. Traffic control /Illeaal Movements 233. At the critical intersections of Route 107 and Old Country Road (servicing Hicksville), and the eastbound LIE ser-vice road and Willis Avenue (servicing Roslyn), southbound evacu-ating traffic is expected under KLD's analyses to take left turns toward the reception centers. Both intersections have left-turn bays from which left turns are permitted. KLD, however, assumed in its analyses that the through lanes adjacent to the left-turn lanes would also be used by evacuating traffic for left turns, even though the geometrics and the signal operations of the

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intersections do.not permit such a' turn.- Egg NY Ex. 7 (Hartgen and Millspaugh Response), at 6; NY Ex. 6 (Hartgen and Millspaugh Rebuttal), at 7-8; Tr. 18522-35, 18551-55 (Lieberman); SC Exs. 20, 21, 23 at 2, 24 at 2, 25.

239. As the State's witnesses testified, such double left turns are dangerous. NY Ex. 7 (Hartgen and Millspaugh Response),

at 6-7. In particular, traffic traveling southbound on Route 107 and turning left from the through lane onto Old Country Road could' conflict with the traffic turning left from Route 107 northbound.112/ NY-Ex. 7 (Hartgen and Millspaugh), at 7. While Mr. Lieberman discounted this' possibility, he admitted that such conflicting turn movements could take place and that he had not measured the intersection itself to determine whether conflicts would be a problem. Tr. 18533-35 (Lieberman).

240. Double left turns are also dangerous because the traf-fic taking a left turn from a through lone has an obstructed view of oncoming traffic. .NY Ex. 7 (Hartgen and Millspaugh Response),

at 6-74 Mr. Lieberman also discounted this problem, but admitted it could occur. Tr. 18572 (Lieberman).

'241. The turns themselves are also illegal. NY Ex. 7 (Hartgen and Millspaugh), at 7 and Att. 2 (such turns at these intersections would violate New York State Vehicle and Traffic 112/ Both turns take place at the same time. SC Ex. 23, at 3.

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1

c .

Law SS 1160 and 1163). Even Mr. Lieberman appeared to concede l-L that the double left turn scheme was illegal (see Tr. 18740 l

(Lieberman)), and that people would not make such turns on their own (ggg Tr. 18535, 18539-(Lieberman); LILCO Ex. 51 (Lieberman I Surrebuttal), at 4); however, he justified his analysis on the assumption that.there would be policemen at the-intersections who' would direct (or permit) traffic to make the double left turns.

Egg id.; Tr.;18535, 18539 (Lieberman).ll3/

242. This revelation about assumed police traffic control, which appeared for the first time in Mr. Lieberman's surrebuttal testimony, created. controversy. In reporting'the results of his analyses, Mr. Lieberman had stated that the analyses did not consider " active traffic control beyond the installed traffic signal; control" at each~ intersection. LILCO Ex. 1 (Crocker et al.), Att. T, at 33. While active traffic control strategies were recommended for some intersections, the quoted language leaves the impression that the KLD capacity calculations did not rely on the implementation of those strategies. geg id.

Dr. Urbanik testified that he never was certain as to whether the analyses assumed traffic control or not. Tr. 18980-82, 18998-113/ Mr. Lieberman also assumed that there would be Nassau County Police Department ("NCPD") traffic control at the entrance of the Bellmore center to direct two lanes of traffic into the facility from the Sunrise Highway eastbound, and at the entrance of the Hicksville center to direct two lanes of traffic into the

-facility from east-bound Old Country Road. Tr. 18558 (Lieberman).

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e.

1' l

19001, 19109-10, 19129-30 (Urbanik).- At best, therefore, KLD's reports'were-unclear in that they assumed active traffic control, but led the reader to believe otherwise.

1

~

l 243. This was;a significant point of controversy because Dr. Urbanik testified that the double left turn strategy would not work without active police control. Tr. 18980-82.(Urbanik).

Indeed, in his opinion, active. traffic control is essential at Lthe three key intersections mentioned above, as well as at the intersection of Willis Avenue and'the west-bound LIE Lervice road. .Tr. 18986-87'(Urbanik); agg also NRC Staff Ex. 3-(Urbanik), at 5, 7; Tr. 18980, 18999 (Urbanik). Traffic control might also be required at the intersection of the Meadowbrook Parkway southbound ramp and the Sunrise Highway. Tr. 18986-87 (Urbanik). In addition, in Dr.-Urbanik's opinion, police person-nel would need to be on call to handle problems at other intersections. Tr. 18988 (Urbanik). While Dr. Urbanik's testi-mony might suggest a finding that the capacity of the roads would be adequate if traffic control were present, we cannot make such a finding, even if we were to accept the 30% of the EPZ popula-tion traffic demand which KLD and Dr. Urbanik assumed.  ;

244. First, it is questionable whether the NCPD will be available to guide traffic pursuant to LILCO's Plan. LILCO has no agreement with the NCPD that such assistance will be provided.

1

.Tr. 18660 (Lieberman). There is no evidence that NCPD personnel

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have ever even reviewed, much less agreed to implement, LILCO's strategies.- More significantly, the County Executive'of Nassau County, Thomas Gulotta, sent this Board a letter explaining that by Resolution of the County Board of' Supervisors, Nassau County facilities, including the NCPD, would not be available to assist in the LILCO-Plan absent a further resolution permitting the use of such facilities. See SC Ex. 22.114/ Presumably for this.

reason, Mr. Lieberman told Dr. Urbanik that it was unknown whether NCPD would participate in LILCO's Plan. Tr. 19147-48 (Urbanik).

l 1

l 245. LILCO argues that pursuant to CLI-86-13, 24 NRC 22 (1986), we must assume that the NCPD will in fact respond to LILCO's request to provide traffic control and that they will implement LILCO's particular traffic strategies. LILCO Proposed Findings, at 114-15. We can make no such finding or assumption.

We are not persuaded that CLI-86-13 was meant to apply to a gov- l ernment where the emergency at issue is far outside the boundaries, and jurisdiction, of that government. We need not reach that issue, however, because, even if Nassau County police-men were to report to the key intersections, there is no evidence that the NCPD has agreed, or is prepared, to implement any of 1

L 114/ We admitted only the second and third paragraphs of SC Ex. 22. However, we cannot ignore the fact that the NCPD is one of the facilities which the letter specifically says is unavailable and should be removed from the Plan. Thus, LILCO's assertion that the letter does not even imply that the NCPD will not be available in an emergency is not supported by the record or-by a common sense reading of the Gulotta letter. See LILCO Proposed Findings, at 116.

l l

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KLD's proposed traffic strategies. While LILCO testified that its Plan contemplates requesting the NCPD for assistance (LILCO Ex. 1 (Crocker et al.), at 37),115/ Mr. Lieberman admitted that he had never discussed the traffic strategies suggested by KLD with representatives of the NCPD; nor did he know whether the NCPD would agree with or implement them, even under emergency conditions. Tr. 18541-42, 18660-61 (Lieberman). There is also no evidence that KLD's proposed traffic strategies have been provided to the NCPD for their review or that these are the kinds of strategies with which they would agree in any circumstances to implement. A viable emergency plan must include assurance that the organization expected to handle traffic control agrees before the emergency with the strategy suggested, and that there be some assurance that the strategy will be carried out. Eeg Tr. 18982-83 (Urbanik). The LILCO Plan provides no such assurance.

246. Accordingly, on traffic control matters, we find for the Governments. Even if we were to assume that 30% of the EPZ population could be accommodated on the roads in the presence of active police control,ll6/ we still could not find in LILCO's favor because there is no assurance that police control would actually be available. Even assuming further that police control were available, we are disturbed by the absence of pre planning 11$/ Under LILCO's Plan, LILCO traffic guides direct traffic only on the three reception center sites. LILCO Ex. 1 (Crocker et al.), at 37.

116/ We are, of course, unwilling to base our opinion on that assumption. See above.

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with the NCPD which precludes us from finding that the controls contemplated would actually be implemented. Indeed, in light of-the danger and illegality of the double left turns, it is doubtful that they would be implemented. Accordingly, we find that KLD's analyses are based on traffic control assumptions which have no basis. Therefore, we reject KLD's capacity estimates.

c. Inout Data on Backcround Traffic 247. KLD's analyses assumed that 100% of the normal

" background traffic" would be on the approach routes to the reception centers.ll7/ The presence of such traffic on the roads reduces the amount of capacity available for evacuating traffic's use.

117/ Dr. Urbanik testified that Mr. Lieberman's assumption regarding the presence of 100% background traffic was appropriate. NRC Staff Ex. 3 (Urbanik), at 4. Mr. Lieberman asserted that the level of background traffic would probably be less than 100% because people might defer discretionary trips and avoid evacuation routes. LILCO Ex. 26 (Lieberman Rebuttal), at 8; Tr. 18595-96 (Lieberman). We find that it is speculative to suggest that there would be less than 100% background traffic.

For example, many commuting workers might not be able to avoid evacuation routes in order to reach their destinations. See i Tr. 18846-47, 18891 (Hartgen). Furthermore, evacuation within l Nassau County, especially by those who live near the reception j centers (see Section IV.C, above) could actually raise background levels above 100%. NY Ex. 5 (Hartgen and Millspaugh), at 17. ,

l Therefore, we find that it is proper to examine capacities j starting with an assumption of 100% background levels. An j appropriate and prudent analysis, however, should also consider I the offects of increases in background levels. The State's t analysis did so; LILCO's did not. Id., at 39. 1 I  !

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1248. In order to determine normal background traffic levels on the approaches to the reception centers,;KLD arranged for machineEcounts to-be taken at many intersections, including the previously identified critical intersections.

Tubes stretched across the road counted not only the total volume approaching the intersection from particular directions, but also in many instances the volume of traffic making the specific turn move-ments that evacuating traffic would he assumed to make. The counts were taken over a period of four days, with the day repre-senting the highest average hourly volumes then chosen as the.

data eventually used by KLD in its initial report, TR-192. Egg LILCO Ex.-1 (Crocker et al.), at 31 and Att. M, at 1, 7-8, A-3 through A-15; Tr. 18619-30 (Lieberman).

-249. However, while the results in TR-192 were derived from hand calculations, TR-201 and TR-201A employed the HCM software.

To run the software, it is.necessary to have the total volume approaching.an intersection broken down by movement (e.a., right turn, left turn, through). Because the machine counts taken by i KLD did not provide all of the data required by the HCM software, field observations were taken at the intersections over periods of time as small as 15 minutes to estimate the percentage of total volume of each of the various movements. These percentages i

were then applied to the total volumes previously taken by the I machine counts, in order to calculate the hourly average volumes l

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for each turn movement. See LILCO Ex. 1 (Crocker et al.), at 31; LILCO Ex. 51 (Lieberman Surrebuttal), at 2; Tr. 18640, 18741-43 (Lieberman). l 250. We find that this approach is inappropriate. In applying turn movement percentages derived from very short-term i i

observations, KLD essentially abandoned the extensive turn move-ment data previously derived from the machine counts. Having been taken over the course of many days, these abandoned data were inherently more reliable than the data derived from the short-term field observations. Tr. 18903-05 (Hartgen). The effect of Mr. Lieberman's substitution of the short-term field observation data was to lower background traffic for evacuation movements at about half of the intersections analyzed,-thus free-ing more capacity (on paper) for evacuation traffic. Eee NY Ex. 7 (Hartgen and Millspaugh Response), at 4-5 and Att. 1; see also NY Ex. 6 (Hartgen and Millspaugh Rebuttal), at 3-4.

Mr. Lieberman pointed out that this also meant that background traffic levels were raised at the other intersections analyzed; he failed to note, however, that the reductions in background levels took place at some of the key intersections analyzed. See NY Ex. 6 (Hartgen and Millspaugh Rebuttal), Att. 6; LILCO Ex. 51 (Lieberman Surrebuttal), at 2.118/

118/ For instance, at the southbound approach to the intersection of Route 107 and Old Country Road, the machine counts showed an average of 152 cars turning left (the critical evacuation l movement at this intersection) each hour between 7:00 a.m.-10:00 a.m. This average hourly volume should have been added to the j l (footnote continued)

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l 251. In short, ;Mr. Lieberman's methodology has resulted in ;j the.use-of input data which-are not' reliable v.nd which resulted in an' unjustifiable reduction of b60kground traffic levels, Since Mr. Lieberman's methodology was flawed, we must reject the l

results obtained by tnat methodology.119/~

(footnote continued from previous page) estimated amount of evacuating traffic expected to travel thtough  ;

that intersection.(assuming that 30% of the EFZ population seeks i monitoring)'to' determine the total demand for left turns at that j intersection. The total should then have been input into the HCM software to calculate intersection capacity. This was not-done, however. Instead of calculating the traf fic .dercand based on ~152-

. vehicles per hour, KLD reduced that amount to only.77 cars -- the number de ived from the short-term counts. .In other words,-KLD cut in half the amount of background traffic attempting to turn left at the intersection, thus increasing the amount of the

. capacity available for evacuating traffic. NY-Ex. 6 (Hartgen and Millspaugh), at'4-5 and Atts. 2-6; see Tr. 18619-31 (Lieberman);

SC Exs. 19, 20, 23 at 1, 27, 28. LILCO also reduced background traffic taking a right-turn from the northbound approach of the intersection toward.the Hicksville reception center. NY Ex. 6

-(Hartgen and Millspaugh Rebuttal), at 6 and Att. 6. LILCO l l

calculated a traffic-demand (volume)~over capacity, or V/C, ratio of .566 and a level of service rating of "C" using its reduced' data; when the actual data are applied, however, they show a V/C ratio of 1.019, which is Level of service "F." NY Ex. 6 (Hartgen and Millspaugh Rebuttal), at 5-6 and Att. 5. This means that the intersection will be extremely congested, leading to long delays for those attempting to reach the reception centers. NY Ex. 6 (Hartgen and Millspaugh Rebuttal), at 8.

While Mr. Lieberman stated that further analysis had been done on this intersection, the input data regarding evacuation turn movements were not changed. Therefore, the State's criticism remains viable. See Tr. 18678 (Lieberman).

Il9/ While Dr. Urbanik testified that he generally agreed with Mr. Lieberman's methodology as reflected in the various reports, he did not review the accuracy of Mr..Lieberman's background traffic input data. NRC Staff Ex. 3 (Urbanik), at 4; Tr. 19007 (Urbanik).

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d. Sianal Timina Data 252. Part of the input required to run t.he HCM intersection capacity software is signal ~ timing data,-particularly " maximum green time" for various phases of the signal cycle.l.2f/ Prior Eo the nearing, LILCO requested from the State the Signal tiniing settings at those int.ersections along the evacuation route net-work where the computerized traffic signal controllers are main-tained by the State. Similar requests were not made, however, to Nassau County or any towns regarding the signal controllers at the intersections under their jurisdictions. Tr. 18612 (Lieberman).

253. The Cata requested from the State were provided to >

LILCO, but apparently not in time to incorporate the data into TR-201. Therefore, the signal timing data used in that analysis I were estimates derived by KLD from field observations. LILCO ,

Ex. 26 (Lieberman Rebuttal), at 14-15; LILCO Ex. 1 (Crocker et al.), Att. S at 12, 22; Tr. 18604-10 (Lieberman); see SC Ex. 26.

Mr. Lieberman conceded that the estimates were not exact.

Tr. 18745 (Lieberman). Further, the State's signal timing data 1 I

were available when TR-201A was issued. Nevertheless, the latest 120/ While most signal controllers at the intersections analyzed are " actuated controllers" (i.e., they provide green time to various approaches in response to demand, as read by detectors beneath the pavement),.these controllers are constrained by settings which establish a maximum green time for all phases of the signal cycle. Thus, there would not be unlimited green time  ;

available to any evacuation movement. See Tr. 18612-13 i (Lieberman). i l

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i KLp analysis, TR-201A, although purportedly a " refinement" of l

TR-201, continued to use the previous estimates used in TR-201 I rather than the data provided by the State. Mrs Lieberman dJd testify, however, that his data were checsed against the State's, l

to make sure they were " consistent." Rgg LILCO Ex. 26 (Lieberman i Rebuttal), at 14-15; Tr. 18605-11 (Lieberman).

254. According to the State's witnesses, Mr. Lieberman erred in using estimates of maximuin green time rather than the actual signal settings. Sgg NY Ex. 5 (Hartgen and Millspaugh),

at 22; NY Ex. 6 (Hartgen and Millspaugh Rebuttal), at 10. It is very difficult to estimate maximum green time accurately from field observations; thus, the inaccuracy inherent in such estimates should be avoided when one has actual settings from the signal controllers. Egg Tr. 18892-93 (Millspaugh).121/ As Mr. Lieberman conceded, even small errors of two to three seconds in such estimates can change calculated capacities by as much as 10%. Tr. 18604-10, j'8745 (Lieberman).

255. The State's witnesses demonstrated that KLD consis-tently overestimated the amount of green time available to traf-fic moving to the reception centers. By assigning more green time e Mr. Lieberman's analyses inflated the capacity available to evacuating traffic. NY Ex. 6 (Hartgen and Millspaugh Respanse),

121/ Dr. Urbanik testified that the maximum green time can be estimated from field observations, but that field observation is not a substitute for actual settings, when such are available.

Egg Tr. 19115-16 (Urbanik).

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Lat 10; NY Ex. 7 (Hartgen and Millspaugh Rebuttal), at.9.122/

For

]

'this additional reason, we find LILCO's capacity analyses d

, deficient.123/

e. Route Deviation t

)

256. Under the LILCO Plan, the residents of each EPZ

subzone are assigned to one of the three reception centers. The Plan also describes established routes to.the reception centers for the residents of each EPZ subzone. In some cases, there are ,

i multiple routes. described for each subzone, with residents assigned to-different routes, depending on where they live within the subzone. The reception center assignments and routing 122/ The State's witnesses demonstrated that the data provided to LILCO provided actual signal settings which could have been used as input in the HCM software. Egg Tr. 18855-88, 18877-85; 18891-93 (Millspaugh). KLD did not do so, apparently.because the data and the format of such data were not understood. Egg 18606-11 (Lieberman).

Contrary to LILCO's assertions that the signal timing data were " ambiguous and incomplete" (see LILCO Proposed Findings, at l 101 n. 81), the data provided were accurate and could have been l used as input for Mr. Lieberman's analysis. There was j substantial time between the issuance of TR-201 and the issuance of TR-201A for KLD to have asked the State how the data shou d have been interpreted. LILCO could have and should have expanded a

'its request for further explanations of the dial setting information.

Further, as noted, requests for actual data were not made at all.to Nassau County or to any of the towns. As a result of this failure to obtain actual settings, LILCO relied on estimates i which were demonstrated to be unreliable and which resulted in i overestimates of capacity.

123/ We note that Dr. Urbanik did not review the accuracy of KLD's signal timing data. Tr. 19006-07 (Urbanik).

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assignments were made to maximize, in theory, the available

-teception center and roadway capacities. See LILCO Ex. 1 (Crocker et al.), at 31, Att. M, at 1; NY Ex. 5-(Hartgen.and l Millspaugh), at 12-13.

I r

257. The State's witnesses contended that the LILCO Plan providesuno' reliable means to assure that evacuees would actually:

follow the routes LILCO assumes. The reception centers are'40 miles from the Shoreham plant. The routes to the reception cen-ters are not simple and would not be obvious to most evacuees.

People might also perceive that they know a quicker route to i

their assigned reception. centers than the route assigned to them.

Nevertheless, KLD TR-192 and the LILCO Plan assume that evacuees 1 seeking monitoring would adhere to the routes and the reception centers assigned to them by LILCO. This is a flawed assumption which, while maximizing the use of capacity on paper, is not consistent with reality. NY Ex. 5 (Hartgen and Millspaugh), at 13; SC Ex. 15 (Johnson and Saegert), at 21-22.

258. The reality is that individuals directed by LILCO to follow a certain path between the EPZ and a particular reception site might not, in fact, follow that path; others might not go to the particular site assigned to them. See SC Ex. 15 (Johnson and Saegert), at 22. If this happens, traffic demand on some routes will be greater than KLD assumes; on others, it will be less.

That does not mean, however, that one balances out the other.

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8 Individuals on'those routes with increased traffic' demand are <

- likely to experience greater. delays reaching the reception-centers. As a result, they will be delayed in being monitored and decontaminated.- Neither the LILCO Plan nor KLD' analyzed this possibility; however, the State's analysis did (see below).- It shows that the effect is to increasc congestion on roads to the east of the three reception centers, particularly Hicksville.

.- NY Ex. 5-(Hartgen and Millspaugh), at 13-14.

259. Mr. Lieberman argued in response that LILCO's routes were carefully chosen for;their simplicity and that none had more than two turns. : .Therefore, they could be easily followed'. LILCO Ex. 26 (Lieberman Rebuttal), at 4.. This' assertion is wrong, however. Figure 2.2 of TR-201A, for example, makes it evident.

.that, in many cases, evacuees take many more than.two turns after-leaving the EPZ 124/

i 124/ For instance, evacuees leaving.the EPZ on Route 26 eastbound l must take a left onto the Sunken Meadow State Parkway, then a right onto the Southern State Parkway, a left onto the Meadowbrook Parkway, a right onto the Sunrise Highway eastbound, and finally a right into the Bellmore Operation Center. See LILCO'Ex. 1 (Crocker et al.), Att. T, Fig. 2.2. In addition, Figure 2.2 shows several equally complicated routes.

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'260. In any event, the: simplicity or non-simplicity of the rcutes does'not address the issue.of people deviating from their assigned-routes'or destinations based on their perception that

.they know a better. route oc prefer to go'to a different reception center. NY Ex. 5 (Hartgen and Millspaugh), at 13.125/

261. Mr. Lieberman argued'that to the extent people deviate from their various. assigned routes and destinations,'this will largely balance out. LILCO Ex. 26 (Lieberman Rebuttal), at 5.126/ We cannot agree. No evidence was offered by LILCO to show that a significant number of people would not attempt to converge on certain routes or travel to certain destinations, leaving other' routes and destinations under-utilized.

Accordingly, we find that LILCO has not adequately, accounted for the effects of Voute deviation.

125/ While Mr. Lieberman argued that evacuees would have no experience by which to identify better routes, we find this to be another example of speculation. See LILCO Ex. 26 (Lieberman Rebuttal), at 26. Mr. Lieberman also argued unconvincingly that evacuee routes would be determined by monitoring rates. See id.

There is no basis to believe that many evacuees would know about such rates, however.

126/ Mr. Lieberman also argued that because only 30% of the EPZ population is expected to arrive at reception centers, and he has calculated that 46.6% can be handled at the reception centers, this margin would accommodate any imbalance. We have already rejected the premise of this argument, however. Ege Section II, above.

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2. The State's Analyses 1

1 262. In support of their testimony, the State's witnesses conducted their'own analyses of the routes leading to the recep- j tion centers. To conduct their analyses, the State's witnesses prepared and computer-coded a roadway network which simulated the roads on Long Island from the EPZ to the reception centers. The State's witnesses then ran a series of eight cases testing the effects of various factors, including different levels of back-ground traffic, the shadow phenomenon, traffic growth five years in the future, and route deviation. The cases tested by the State ran from a low case, with background traffic reduced to 50%

of normal levels and only 30% of the EPZ population evacuating, to more realistic cases with 100% background traffic, 50% evacua-tion from the FPZ and shadow traffic consisting of 50% of the remaining non-EPZ, Suffolk County traffic. Higher cases with 150% background traffic and five years of future growth were also simulated. Egg NY Ex. 5 (Hartgen and Millspaugh), at 33-41, Atts.'10-13.

4 263. The results of the analyses were expressed in part as a ratio of traffic demand (volume) over capacity for each link.

V/C ratios are indicative of traffic congestion.127/ Where traf-127/ V/C ratios of .77 .92 represent Level of Service D. Level D on highways is characterized by severely restricted freedom to maneuver, and lower " comfort" levels. Minor incidents can create substantial queuing. V/C ratios of .93 .99 represent Level of  !

Service E, in which flow is unstable, small incidents may cause l

(footnote continued) l

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fic demand equals the-capacity of the road section, the V/C ratio equals one.- As conditions approach this point, congestion occurs. -A V/C ratio of more than one represents " forced flow" conditions and' severe congestion. NY Ex. 5 (Hartgen and Millspaugh),Lat 39-40, Atts. 14-22. The analyses also provided the length of queues that would exist beyond the Nassau County /.

Suffolk County border after 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. NY Ex. 5 (Hartgen and Millspaugh), Att. 23.

264. We find the State's analyses useful because, rather than focusing on one scenario, as KLD did, they tested a spectrum of conditions and the sensitivity of the results to changes in those conditions. The results, not surprisingly, show that as more traffic seeks to enter the road network, congestion increases, queues lengthen and delays increase. NY Ex. 5 (Hartgen and Millspaugh), at 41-46, 52. For instance, in Case 4,  ;

the effects of the shadow phenomenon are evident. In that case, l which assumed 100% background, 50% of the EPZ population travel-ing to the reception centers and 50% evacuation shadow phenomenon, the results show that 22 road sections were over capacity, particularly the approaches in the immediate vicinity of the three reception centers. After 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />, a queue three (footnote continued from previous page) shock waves, and breakdowns may occur with long queues. V/C ratios of over one represent, for highway sections, Level of i Service F. The Highway Capacity Manual defines Level of Service F as having highly restricted stop-and go flow, no freedom to maneuver, and low through volume. NY Ex. 5 (Hartgen and Millspaugh), at 39-40.

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l miles long had formed from the reception centers to a point three miles beyond the Nassau County /Suffolk County border, This queue j

would take a substantial amount of additional time beyond 12 I hours to dissipate. Id., at 43, Atts.18-18A, 22-23. Obviously higher traffic demand due to an even greater monitoring shadow )

1 i would increase the resulting congestion, queue lengths, and 1

delays even further.

265. The State's witnesses also analyzed the three key intersections discussed above using HCM software, as Mr. Lieberman used. Unlike Mr. Lieberman, however, the State's witnesses assumed a higher traffic demand reflecting more realis-tic assumptions. The results again showed very high V/C ratios with large queues built up behind the intersections after 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />. NY Ex. 5 (Hartgen and Millspaugh), at 46-50.

266. Mr. Lieberman and Dr. Urbanik urged that the State's analyses should be rejected, because they are based on " extreme" assumptions about traffic demand, rather than on the FEMA guid-ance which provides that only 20% of the EPZ population need be expected to arrive at reception centers.128/ We decline to do so. Rather, as set forth above, we find that KLD's analyses rest 128/ Dr. Urbanik testified that he failed to inquire of the State's witnesses about their methodology or how their computer program worked because the State's analyses reviewed scenarios with higher traffic demand than LILCO assumed. Thus, the State's analyses were " irrelevant" in Dr. Urbanik's opinion. Tr. 19029-30 (Urbanik); see also NRC Staff Ex. 4 (Urbanik Rebuttal), at 3-

4. In light of our previous findings, this rejection of the i State's analyses is not supportable.

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on' overly optimistic assumptions about traffic demand. Both KLD and LILCO have failed to assess the effects of more severe demands on the roads:and on LILCO's reception centers. The State's' analyses, on the other hand, provide useful information regarding the effects of increased demand due to such factors as evacuatien shadow and monitoring shadow.129/.

267. The State's analyses also provide useful insights into the effects of future growth. Mr. Lieberman and'Dr. Urbanik argued that plans should be based only on current data. LILCO Ex. 26 (Lieberman Rebuttal), at 9; LILCO Ex. 51 (Lieberman Surrebuttal), at 18; NRC Staff Ex. 3 (Urbanik),.at 6;'Tr. 19019-20-(Urbanik).. We fail-to see why it is imprudent to conduct, as the State did, sensitivity analyses of short-term growth to determine whether LILCO's Plan would be valid in the near future.130/ Further, we find that the State's analyses demon-129/ LILCO's Proposed Findings confuse the origin of the additional demand which the State's analyses recognize will overload'the roads. Egg LILCO Proposed Findings, at 77-86.

LILCO. incorrectly connects the source of the State's data about traffic' demand to the County's prior testimony on the evacuation shadow phenomenon., which was litigated prior to the PID. See id., at 80-86. In fact, the State's data are derived from Dr. Cole's most recent survey which demonstrates that a large number of people will seek monitoring in a radiological emergency. Egg NY Ex. 5 (Hartgen and Millspaugh), at 19. We have already accepted the results of that survey as valid. We therefore find that LIL.O's extensive discussion of the previous evacuation shadow phenomenon litigation is irrelevant here.

130/ While both sides produced conflicting growth figures, we reject Mr. Lieberman's suggestion that Suffolk County growth rates are not material to an analysis of traffic demand on routes leading to the reception centers. Egg NY Ex. 7 (Hartgen and Millspaugh Response), at 19-20; NY Ex. 5 (Hartgen and (footnote continued)

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.atrate that future growth, even in the short term,-will serve to-

. increase traffic demand significantly, causing even further congestion.

268.. Mr. Lieberman attacked the State's analyses on numerous other grounds, including assertions that: the State artificially increased demand by double-counting evacuating and background-traffic; the State unrealistically sent all shadow phenomenon traffic to the reception centers; evacuation volumes on various links were fictional because V/C ratios of more than one were. generated.by the analyses; and the State failed to observe certain laws of the conservation of flow. LILCO Ex. 26 (Lieberman Rebuttal), at 25, 29, 33, 35; LILCO Ex. 51 (Lieberman Surrebuttal), at'13-17. As the State demonstrated, however,

.Mr. Lieberman's assertions were based on his misunderstanding of the State's methodology (which, we note, was in many ways similar to KLD's). NY Ex. 7 (Hartgen and Millspaugh Response), at 16-18; ggg LILCO Ex. 51 (Lieberman Surrebuttal), at 14. Even Mr. Lieberman conceded this misunderstanding. LILCO Ex 51 (Lieberman Surrebuttal), at 16-17.131/ Accordingly, we find that l

(footnote continued from previous page)

Millspaugh), at 17-18; LILCO Ex. 26 (Lieberman Rebuttal), at 10 L and Att.-A. Indeed, it is evident that, in the event of a l Shoreham accident, most of the evacuating and monitoring-seeking L traffic will come from Suffolk County. See cenerally LILCO Ex. 1 .;

b (Crocker et al.), Atts. M, S, T.

131/ Moreover, Mr. Lieberman did not recognize, or address, the fact that the State's witnesses took measures to avoid double counting. Egg N.Y. Ex. 5 (Martgen and Millspaugh), at 37 and Atts. 15, 18. l

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, o-the' criticisms raised by Mr. Lieberman were without merit.132/

l 269.- Mr. Lieberman also challenged the State's analyses on the' ground.that the: signal timing data used in-the State's analy-ses did not account for the fact that the signals are controlled' 1

by actuated ~ controllers. LILCO Ex. 51 (Lieberman Surrebuttal),

at 4. The State's witnesses rebutted this assertion during.

cross-examination, however. In fact, the State's witnesses adjusted green time in their analyses in order to give evacuation 1

movements as much green time as possible, just as an actuated controller would. Tr. 18830-35 (Millspaugh).

l 270. In sum,-we find that the State's analyses are more useful-to us'than KLD's analyses. Unlike KLD, the State investi-gated a range of possible conditions and demonstrated.that in situations where one postulates a more realistic demand on road-way' capacity (that is, where one postulates more than simply the 30% EPZ population which was KLD's base case), there will be an 132/ Mr. Lieberman also criticized the State's analyses for improperly coding six links in the roadway network prepared and computer-coded by the State. LILCO Ex. 26 (Lieberman Rebuttal),

at 23-24; LILCO Ex. 51-(Lieberman Surrebuttal), at 19. The State's witnesses conceded that Mr. Lieberman was correct regarding two of those links, but even as to those two links they testified that the errors did not significantly affect their results. NY Ex. 7 (Hartgen and Millspaugh Response), at 20. In the absence of evidence to the contrary, we find that the errors cited are not important to the decision we reach.

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. overwhelming amount of congestion.around the reception centers

.and queues leading far beyond the Nassau County /Suffolk County border.1_3h ,

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E. Conclusion en Traffic Issues' '

4 l

271. $LILCO's assertion that its reception centers have suf-- j

'l

'ficientTeapacity to. handle evacuation traffic is based on opti-mishih" assumptions that have no basis in th}k 't, evidentiary record.

, , j Furthermore, KLD's.roaj' capacity analyses are flawed in furdamen- l 1

5 a

133_/ There were numerouu other areas of controvrarsy between dhe' kitnesses including: KLD's failure to assesF the effects of constriction; e the meaning and possible occerrence -of " gridlock";

,s a'verage speed on the highways; whether delay times calculated by ther ECM procedures-are relevant to this proceeding; appropriate assumpt? ions about the distribution of traffic demand over time;

'j whethP.r certain HCM proced3 res were followed; appropriate capacity reduction valuev to reflect truck traffic; the State's j

, use of average annualized daily traffic ("AADT") data t'o estimate <

backgrpund levels; and KLD;'m estimates of right turn on red. NY j

Ex. 5 (Hirtgen and Millspaugh), at 21, 23-27; NY Ex. 6 (Hartgen 1 and Millspaugh Rebuttal), at 9, 10; NY Ex. 7 (Hartgen and Millspaugh Response), at 12, 16, 19; LILCO Ex. 26 (Lieberman j ro Rebuttal), at 13; 15-19, 22, 24, 35; LILCO Ex. 51 (Lieberman - 1 Surrebuttal), at 4, 9-10, 15-18. We find that these issues are relatively unimportant compared to the'i's' sues discussed above. (,

They do not affect our result here.

There was also much controversy over thesproper methodology for estimating the capacity of'the Meadowbrcok' Parkway ramp at its intersection with the eastbound Sunrise, Highway. The State

.and LILCO each offered capacity estimates n ing different HCM procedures. NY Ex. 6 (Hartgen and Millapa' ugh Rebu'tal),/at t 14-15 and Att. 9; NY Ex. 7 (Hartgen and Millscaugh Response) / at 14; LILCO Ex. 51 (Lieberman Surrebuttal), a' 12-13; Tr. 18897-902, 18919-33 (Hartgen). Dr. Urbanik offered yet a third estimate.

Tr. 18966-76 (Urbanik). We need not decide here which estimate s .was most nearly. correct, as KLD's analyses have already failed to

' (pass muster fo.ifthe several reasons stated above.

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tal respects, making them unreliable as a basis to support the assertion that the roads have sufficient capacity to accommodate evacuation flov 272. While we do not necessarily embrace each and every one of the State's analyses, those analyses were useful in demon-strating that n. ore realistic assumptions about traffic demand I lead to evidence of greater congestion, long queues, and delays 1

well beyond 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> in reaching the reception centers. For these reasons, LILCO has friled to meet its burden, and we find in the Governments' favor on the issues discussed here regarding traffic and reception center capacities.

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VI. ZONING ISSUEE A. Introduction 273. Befc' concludimj our examination of the reception center issues, we must address a legal issue which we had previously deferred. Early in the proceeding, the Governments raised the issue whether LILCO's proposed use of its operations facilities as emergency plan reception centers violated the respective zoning laws of the towns in which those centers are located. We deferred consideration of the matter and urged the parties to seek judicial resolution of the issue. Memorandum and Order (Ruling on LILCO's and Interveners' Motion for Reconsideration of Schedule) (Feb. 9, 1987), at 12-13

(" Memorandum and Order").

i 274. Since that time, two sets of events have occurred.

First, the Nassau County Towns of Hempstead, North Hempstead and Oyster Bay (the " Towns"), pursuant to their powers to establish and enforce zoning laws, have each adopted resolutions finding LILCO's proposal to use, respectively, the Bellmore, Roslyn and l

Hicksville facilities as emerisenc, olan reception centers to be outside the scope of the previoac.y established zoning classifications applicable to those facilities and thus in violation of the Towns' zoning laws.134/ Copies of the 134/ The Governments provided the Board with certified copies of the resolutions.

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resolutions are attached hereto as Appendices A through C.135/

275. Second, the Town of Hempstead has filed suit in the New York State Supreme Court seeking to enjoin LILCO from using the Bellmore Operations Center as a reception center in violation 5

of that Town's laws. A copy of toe complaint has been provided to the Board and all parties under the cover letter accompanying these Proposed Findings.

276. We address the zoning law issue in light of these l

events.

B. Backcround

1. Prior Board Consideration h

277. On January 22, 1987, the Governments filed a Motion for Reconsideration of the Board's January 14, 1987 scheduling order. In their January 22 Motion, the Governments advanced a number of arguments urging this Board to defer the hearing of 135/ It is appropriate in this Decision for the Board to rely upon these resolutions. As discussed below (Section VI.C.1),

these resolutions stand on the same footing as a judicial ~

decision which comes to a court's attention and are, therefore, appropriately relied upon. Further, the resolutions reflect the official acts of the respective Towns. It is therefore appropriate that we take official notice of these documents, pursuant to 10 CFR S 2.743(i). .See Fed. R. Evid. 201(b)(2),

902(1). Accordingly, in the Decision we take official notice of the fact that each Town has adopted the specific resolution 3 l

attached hereto. The weight to be accorded to this fact is addressed in Section VI.C.1 below. ,

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this case until LILCO had resolved uncertainties which allegedly made it likely that this will not be the last hearing on reception center issues.

278. As part of the January 22 Motion, the Governments stated that the Town Boards of North Hempstead and Hempstead had informed LILCO that the use of the Bellmore and Roslyn LILCO operations facilities as emergency plan reception centers violated local zoning laws. In support of that Motion, the Governments submitted letters ' sued by the Town Boards of Hempstead and North Hempstead stating that LILCO's proposal to use its Bellmore and Roslyn operations centers as reception cen-ters violated the Towns' respective zoning laws.136/ The Governments urged the Board to hold the proceeding in abeyance until LILCO designated facilities which it could lawfully use as reception centers.

136/ By letter dated January 6, 1987, the Town of Hempstead put LILCO on notice that its use of the Bellmore facility as a reception center violated local zoning laws. Similarly, on January 16, 1987, the Town of North Hempstead sent LILCO a letter notifying LILCO that its proposed use of the Roslyn facility vioPp;ed North Hempstead's zoning laws. Prior to that date, by s p'.*dte letter dated December 11, 1986, the Town of North E v stead had notified us that LILCO was acting in violation of it zoning laws.

Subsequent to the Governments' January 22, 1987 Motion for Reconsideration, the Town of Oyster Bay also informed LILCO by letter dated January 28, 1987, that the use of the Hicksville facility as a reception center violated local zoning laws. Egg Section VI.B.2, below.

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4 279. On February 9, 1987 the Board issued a Memorandum and Order denying the Governments' Motion. In addressing the Governments' position concerning the alleged zoning violations, we stated:

The issue of whether the zoning laws prohibit the use of the Bellmore and Roslyn facilities as reception centers involves New York law. The fora most compe-tent to make that determination are the New York courts. The Board will handle the matter as it did when other New York laws had to be interpreted in this proceeding. Until one or more of the parties obtain such a ruling, this Board will delay making a decision on this issue until it decides all other remaining issues before it.

Memorandum and Order, at 13. In light of our ruling, no evidence was presented at the hearing on the zoning issue, but the Governments advised the Board and parties at the close of trial that they intended to address the issue in post-trial filings.

Tr. 19238-43,

2. The Town Zonino Laws and Resolutions 280. Subsequent to our February 9 Memorandum and Order, the Town Boards of Hempstead, Oyster Bay, and North Hempstead each adopted a resolution finding that LILCO's reception center scheme violated their respective zoning laws. These resolutions, cf which we have taken notice, are described below.

i

{

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L ___ _

a. The Town of Hemostead (Bellmore) 281. The Bellmore Operations Center is located partly in a

" Business" zone and partly in a "Rasidence B" zone, pursuant to the Building Zone Ordinance of the Town of Hempstead. Eeg App. A.137/ As such, the use of the Bellmore property is l

l governed by Articles VII and XVI of the Building Zone Ordinance.

App. A.

l l

282. Upon learning of LILCO's proposal to use the Bellmore property as a reception center, the Hempstead Town Board informed LILCO by letter dated January 6, 1987 that the classification of its property did not permit the property's use as a reception center. App. A.

283. LILCO did not respond to the Town's letter. Nor did it seek an amendment to the applicable zoning provisions or otherwise attempt to obtain the necessary permission to use the Bellmore property as a reception center. App. A. Accordingly, on June 9, 1987, the Hempstead Town Board, pursuant to its authority to determine permissible property uses under the Town's zoning laws, adopted a resolution finding LILCO's proposal to use the Bellmore property as an emergency plan reception center to be in violation of Articles VII and XVI of the Building Zone Ordinance. App. A.

137/ The Hempstead Building Zone Ordinance was adopted in 1942 and revised and reenacted in 1984.

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b. The Town of Ovster Bay (Hicksville) 284. The Hicksville Operations Center is located in an "H" Industrial District (Light Industry) pursuant to the Building Zone Ordinance of the Town of Oyster Bay. See App. B.138/

Sections 507 and 508 of Division 4 of the Building Zone Ordinance delineate those activities for which the property may lawfully be used. App. B.

285. Upon learning of LILCO's reception center proposal, the Oyster Bay Town Board informed LILCO by letter dated January 28, 1987, that the proposal violated the Town's Building Zone Ordinance. App. B. LILCO scught no amendment to the applicable coning provisions, nor did it otherwise attempt to obtain the necessary permission to use the property as a reception center. Accordingly, on June 23, 1987, the Town Board, noting its authority to determine which uses are permissible, passed a resolution finding that LILCO's proposal violated Sections 507 and 508 of Division 4 of the Town's Building Zone Ordinances. App. B.

138/ The Oyster Bay Building Zone Ordinance was originally adopted in 1929 and was revised and reenacted in 1953.

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c. The Town of North Hempstead (Rosivn),

286. In letters dated December 11, 1986 and January 16, 1987, the Town of North Hempstead informed this Board and LILCO, respectively, that LILCO's proposal to use the Roslyn Operations Center as a reception center was not a permitted use under the Zoning Code. Egg App. C.

, 287. LILCO did not seek a variance from its current l

classification. Accordingly, the Town adopted Resolution No 318-1987, which affirms the conclusion in the above-referenced letters that the use of the Roslyn facility violates the North Hempstead Zoning Code. App. C.

l 1

l l

3. The Town of Hemostead's Lawsuit 288. On August 14, 1987, the Town of Hempstead served a verified complaint against LILCO seeking permanent injunctive relief against LILCO's proposal to use the Bellmore Operations Center as a reception center. The gravamen of the complaint is that the proposed use of the facility violates the Building Zone ordinance of the Town of Hempstead and the Town's municipal code.

The complaint states nine causes of action which, reduced to their essence, seek to enjoin LILCO permanently from using the

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l Bellmore Operations Center in a manner which violates the Town's i l'aws.. LILCO's Proposed Findings fail to mention the Hempstead lawsuit. Egg LILCO Proposed Findings, at 118-19' .

y l

1 C.. Discussion  !

l j

'l. TP9 Town Boards Are the Bodies of Competent i Jurisdiction to Determine Violations of Zoning Ordinances and Have Sooken Conclusively on the Issue 289. In our February 9 Memorandum and Order, we indicated that we would delay deciding the zoning issue until the issue was resolved by a New York State court. While a lawsuit has been filed which presumably will address this issue (at least as it I pertains to the availability of the Bellmore reception center),

we find that we need not await the outcome of that case because we have determined that the Town' Boards themselves have the authority to determine in the first instance the validity of land uses within their borders. Thus, the definitive interpretations of the zoning laws we sought have now been issued.139/

290. The authority of the Town Boards to interpret and enforce their zoning laws is well established under the laws of the State of New York. The 1964 Statute of Local Governments 139/ To the extent the Board's February 9, 1987 ruling suggests that the zoning issues be treated in precisely the same manner as the legal authority issues advanced in prior hearings, i.e., via a state court ruling, we were unaware that in this instance, the i Town Boards were appropriate fora for such a determination. See l below.

1

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J L_ - - _ _ _ - _ _ _

explicitly delegates the zoning power to the towns, cities and villages of New York. Statute of Local Governments, S 10(6)

(McKinney 1969 & 1987 Supp.); see North Bay Associates v. Hope, 116 A.D.2d 704, 497 N.Y.S.2d 757 (Sup. Ct. 1986); Sherman v.

Frazier, 84 A.D.2d 401, 446 N.Y.S.2d 382 (Sup. Ct 1972).

291. Moreover, various other statutes delegate zoning i authority to towns, cities and villages. Thus, New York Town 1

Law, S 261 (McKinney 1987), provides in part as follows:

5 261. Grant of power; acoropriations for certain expenses incurred under this article For the purpose of promoting the health, safety, morals, or the general welfare of the community, the town board is hereby emoowered by ordinance to reculate and restrict the height, number of stories and size of buildings and other structures, the percentage of lots that may be occupied, . . . and the location and use of buildinos, structures and land for trade, industry, residence or other ourooses. (Emphasis added).

292. Town Law S 262 further states:

S 262. Districts For any or all of said purposes the town board may divide that part of the town which is outside the limits of any incorporated village or city into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this act; and within such districts it may reculate and restrict the erection, construction, reconstruction, alteration or use of

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l l

l buildinas, structures.S t,lgpd. All such I

regulations shall be uniform for each class or kind of buildings, throughout such district but the regulations in one district may differ from those in other districts. (Emphasis added).

293. Finally, Town Law S 264, provides as follows:

S 264. Method of crocedure The town board shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established and enforced, and from time to time amended, supplemented or changed.

(Emphasis added).

294. In light of the foregoing, it is beyond dispute that the authority to regulate the use of land has been specifically delegated to the Town Boards, which determine the lawfulness of particular uses. Exercising this authority, the Town Boards of Hempstead, North Hempstead and Oyster Bay have determined that LILCO's proposal to use the Bellmore, Roslyn and Hicksville facilities, respectively, as emergency plan reception centers is unlawful. Furthermore, they have each done so through duly enac-ted resolutions. Such resolutions are the means by which Towns typically express themselves. Seg Hess v. Board of Education of Central School District No. 1 of the Townshio of Liberty, 41

~

A.D.2d 151, 341 N.Y.S.2d 536 (Sup. Ct. 1973); Town of Clav v.

Helsby, 45 A.D.2d 292, 357 N.Y.S.2d 291 (Sup. Ct. 1974).

- 180 -

i 295. Having ruled, the Town Boards' determinations establish the law which we must apply -- i.e., LILCO's proposed use of its facilities is illegal. Therefore, we find ourselves in substantially the same procedural posture as existed with respect to the legal authority issues raised in Contentions EP 1-10, after the New York State Supreme Court ruled in the j Governments' favor on those issues.140/ The Town Boards' rulings are fixed as law unless LILCO obtains a zoning variance or a state court ruling that its proposed use is lawful.141/ LILCO has done neither. In the face of these determinations, which we i

must respect, we cannot find that LILCO's reception center scheme i L is adsquate.

140/ In advancing those legal authority issues, the Governments claimed that LILCO's implementation of the Plan would violate i; State laws and constitute a usurpation of the police powers. ]

Those laws, however, had not been applied to the specific facts 1 of the LILCO Plan by a body having jurisdiction to address those legal questions. Eventually, the matter was brought before the Supreme Court of the State of New York and the Governments' l position was upheld. Cuomo v. Lona Island Lichtina Co., i Consolidated Index No. 84-4614 (Sup. Ct. Feb. 20, 1985), aff'd, 127 A.D.2d 626, 511 N.Y.S.2d 867 (1987), appeal pendina. On that basis, we ruled that an operating license could not be issued because LILCO lacked the legal authority to implement its Plan.

PID, 21 NRC at 918.

Likewise, the Governments have brought to our attention rulings made by the three competent authorities in New York State having primary jurisdiction over local zoning matters in their respective towns. Those authorities -- the Town Boards -- have applied the law to the specifics of the LILCO Plan and have i concluded that LILCO's proposed use of the facilities located in their respective jurisdictions is unlawful. Thas, procedurally, the issue is now where the earlier legal authority issues were after the Supreme Court's ruling -- i.e., the New York State fora of competent jurisdiction have determined that LILCO's Plan violates the law and therefore cannot be implemented.

141/ See 2 Anderson, New York Zonina Law & Practice, SS 23.02 at 159, 28.02 at 429 (36 ed. 1984).

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2. The Town Boards' Rulinas Are Not Preemoted By Federal Laws 296. Neither the Atomic Energy Act ("AEA") nor NRC regulations preempt local zoning laws. Any notion to the contrary was laid to rest in Pacific Gas & Electric Co. v. State Enerav Resources and Development Commission, 461-U.S. 190 (1983).

In Pacific Gas, the Supreme Court found that the states were not l preempted from exercising their authority merely because the exercise of such authority might affect a nuclear utility.

Rather, the Court found that under the AEA:

. . . Congress has preserved the dual regulation of nuclear-powered electricity generation: The Federal Government maintains complete control of the safety and " nuclear" i aspects of energy generation; the States exercise their traditional authority over the need for additional generating capacity, the type of generating facilities to be licensed, land uqe, ratemaking, and the like.

Id., at 211-12 (footnote omitted) (emphasis added). Thus, the Court held that a California statute imposing a moratoriual on the certification of new nuclear plants was not preempted by the AEA because the California law was based upon a.n economic rationale independent of radiological safety.142/ Similarly, in this case, 14 2/ When the NRC adopted its emergency planning rules, it similarly recognized the rights of state and local governments to rule on land use and zoning matters. Thus, in responding to comments that operation of a plant could be affected by the rule, the NRC stated:

(footnote continued)

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.the fact that:LILCO's proposed new use of its properties con-flicts with the pre-existing zoning requirements is a matter far outsid- .he AEA and is not. preempted.

1297. We are familiar with the Pacific Gas case, having applied it in our April 16, 1985, Partial Initial Decision.

There we ruled that LILCO lacked the legal authority to implement 1

the.LILCO Plan and that the state statutes cited by the Governments in support of that proposition were not preempted by federal law. PID, 21 NRC at 904.. As we stated in the PID, the issue is governed by. Pacific Gas:

L In-the case before us the statutes at issue were passed long before LILCO began emergency planning for Shoreham and for purposes totally unrelated to nuclear power or emergency planning. This mandates a finding-that these State and local laws are not preempted.

(footnote continued from previous page)

The Commission recognizes there is a  ;

possibility that the operation of some l reactors may be affected by this rule through inaction of State and local governments or an inability to comply with these rules. The Commission. believes that the potential restriction of plant operation by State and local officials is not significantly different in kind or effect from the means already available under existing law to prohibit reactor operation, such as zonina and land-use laws, certification of public convenience and necessity, State financial and rate considerations (10 CFR 50.33(f)], and Federal environmental laws.

45 Fed. Reg. 55,404 (1980) (emphasis added).

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w--______-_ __

.i jbi.~ That' decision was affirmed by the Appeal Board in ALAB-818,-  ;

22 NRC 651, 678 (1985).143/

i

.298. By the same token, F=ce, as in Pacific Gas, the Town Boards are acting within the scope of the authority recognized by the Supreme Court.as properly within their exclusive' powers. The i zoning laws and classifications at issue predated LILCO's j proposed use of the-facilities as emergency plan reception 1

' centers. Likewise, it is plain that the ordinances and. ,

classifications at issue address legitimate land use concerns and were not adopted to regulate nuclear power.144/ The fact that the Town Boarde' interpretation of those laws and classifications I

.may affect LILCO in its attempt to-meet the NRC's emergency planning requirements does not render those laws invalid. Egg

]

)

ALAB-818, 22 NRC at 662-63. j i

i 290 We must therefore apply the Town Boards' findings in the present proceeding and find that LILCO's reception centers cannot lawfully be used.

14 3/ On appeal to the Commission, the legal authority. issues were remanded to the Board for further. inquiry into the so-called

" realism" argument. The Commission deferred any ruling on the preemption issue.. CLI-86-13, 24 NRC 22, 24 (1986).

144/ Cf. Jersey Central Power & Licht Co. v. Townshio of Lacev, 772 F.2d 1103, 1112 (3d Cir. 1985) (municipal ordinance prohibiting importation of nuclear fuel for storage purposes preempted by Atomic Energy Act).

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3. CLI-86-13 Is Not Acolicable to These Facts 300. In CLI-86-13, 24 NRC 22 (1986), the Commission assumed that.in the event of an emergency at Shoreham, the State of New York and Suffolk County would make a "best effort" response.

That holding, however, does not affect our finding here.

^

l 301. While CLI-86-13 requires the assumption of a "best effort" response by the State and Suffolk County, it cannot be read to mean that the proponent of a plan can propose planning measures that are illegal. Apparently, it is LILCO's belief that the Commission's holiing in CLI-86-13 means that LILCO can q 1- declare that it will direct all monitoring-seeking traffic to facilities in the three Towns, despite zoning laws which prohibit i

the use of those facilities for such purposes, and without any j attempt to seek a variance from the laws.145/ We cannot accept that argument any more than we could accept the argument that a nuclear plant may be sited where zoning _aws prohibit such a use. j l

The NRC certainly cannot accept an applicant's proposed future use of a facility when it is clear that such use is illegal.146/

145/ Egg LILCO Proposed Findings, at 118-19.

146/ In its Proposed Findings, LILCO suggests that even if its reception center scheme violates located zoning laws, "it is not plausible" that local officials would enforce a zoning ordinance j to block the monitoring and decontamination of members of the i public who have been exposed to a release of radiation. LILCO Proposed Findings, at 118. The argument is simply a naked ,

assertion that LILCO need not conform with valid laws. We reject i that argument.

l

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302. In short, we cannot condone LILCO's practice of designating in its Plan any facilities it wants to use as reception centers without regard for the legality of such use.

CLI-86-13 cannot be applied to approve such disregard for local governments and their laws.

D. Conclusion 303. The Town Boards of Hempstead, North Hempstead, and Oyster Bay have the authority to interpret their zoning laws and to determine whether the use of LILCO facilities as reception centers complies with local zoning ordinances. The Town Boards have spoksn, and the reception centers designated by LILCO have been found to be an unlawful use of those facilities. We are bound to recognize these determinations. Therefore, we find that LILCO's proposal to designate the Hicksville, Bellmore and Roslyn Operations Centers as reception centers is contrary to applicable zoning regulations. Accordingly, we cannot find that those facilities are available for use in the event of a Shoreham accident.

I 1

l l

l,

)

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1 1

_ _ _ _ _ _ _ _ _ - - _ - _ - - _ _ - J

VII. CONCLUSION For the foregoing reasons, LILCO has failed to demonstrate, insofar as its reception center plan is concerned, that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. 10 CFR S 50.47(a)(1).

! Respectfully submitted l Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 C3

/ & Y-Christopher M. McMurray '

David T. Case Ronald R. Ross KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County bO OTC-.

Fabian G. Palomino '

Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York

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l

bd . [A '//J T __ .i Stephen B. Latham /

Twomey, Latham & Shea i P.O. Box 398 33 West Second Str7et Riverhead, New York 11901 Attorney for the Town of Southampton September 14, 1987

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'1 APPENDIX A l

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y i

CASE NO. 18473 RESOLUTION NO, 624-1987 Adopted: June 9,1987 I

Hr. Za arino offered the following resolution andmoveditsafoption:

RESOLUTION LDEC'ARING THE OPPOSITION OF THF TOWN BOARD TO LILCO'S PROPOSAL TO USE LILCO PROPERTY AT 2400 SUNRISE HICHWA f, BELLMORE, TOWN OF HEMPSTEAD, NEW YORK, AS A RECEPTION CENTER FOR PERSONS OR ITEMS EXPOSED TO RADIOACTI CONTAMINATION FROM THE SHOREHAM NUCLEAR PLANT, INSOFAR AS SAID USE IS CARRIED OUT. IN VIOLATION OFHEMPSTEAD.

OF THE BUILDING ZONE ORDINANCE OF THE TOWN has designated its prop"erty located at 2400 Sunrise Bellmore the "prope:ty to be a re(ception center), at Town w of Hempstead (the " Town"),

monitoring and, if necessary,hich L7LCO intends to conduct decontamination of many thousands of Shoreham; at people and vehicles in the event of a radiological emergency and WHEREAS, LILCO has represented to the Nuclear Regulatory Commission and othere that the property will be available for use as such a reception centers and

. 56. Block W Lot 1295 on the Land and Tax Map oWHEREA

, is located County' in a Residence B" partly in a " Business" sone,f Nassauand partly zone, pureuant Ordinance of the Town of heapstead; andto the Building tone VII and KVI thereof, expressly delineates those limitedWHER would lawfully be used; andactivities for which the property, se current WHEREAS LILCO's proposed usage of the property as a reception center, as aforesaid, would constitute a violation of the provisions of Articles VII and XVI in thereby; andthat said activity is not a use which is expressly permitted Commission, in writing, in the form of a copy of a letterWHER to LILCO from this Board, dated January 6,1987, that LILCO's representations laws; and were inconsistent with the Town's zoning 1987 from Presiding Supervisor Thomas S. Culotta and si by all members of the Town Board, that any attempts to use thezoning Town's property as a reception center would violate the laws, and LILCO was refrain from any fvether representations thattherein requested it could to so use the property; and WHEREAS LILCO has not responded to the Town Board's January that 6, 1987 letter, and has continued to represent in the event of a radiological emergency atthe ' property i.s avail Shorcham; and ,

WHEREAS, LILCO has not in any way sought an amendment to the zoning provisions applicable to the property or 4

]

y. '

o .o'

/.^

[< 'otherwise sought to obtain the necessary permission to use the property as a reception centers and- l WHERLAS, this Board has authorit to determine which uses are permissib13 under the Town {s:soning laws; and

~

kn6REAS,'the Town Attorney has advised the Town i

Board that a resolution forselly declaring the position ' .

i'

' of the Town Board. as set forth in the aforesaid letter dated January 6, .987, will facilitate the evidentiary i

, presentation of the position of this Board befoce any appropriate -

hearing body or- judicial tribuni1 having jurisdiction over LILCO's proposal to. utilize the property as a reception center; MOW,. THCREFORE, BE IT CONFIRMED AND RESOLVED THAT:

.c

1. LILCO's preposed use of the property, identified as Section 56. Block V, ut 1295 on the Land and Tax Map of Nassau County, and further known as 2400 Sunrise Highway, Bellmore, Town of Hempstead, New York, as. a reccption center .

as hereinbefore descrlbed, is wholly violative of the provisions of the Building Zone Ordinance, as aforesaid: and

2. The adoption of this resolution shall, in accordance with the provisions of Section 4540(s) of the Civil yractice Law sad Rules of the State of New York, acd in accordance with the provisions of Rule:803(8) of the Federal Rules of Civil Frocedure, be deemed prima facie evidence of all statements of. fact contained herein, which facts have been 6ccertained and eddu:ed by this Town Board, pursuant to evt(soce submitted and testimony received in due course ano es provided by laws and .

3. The Town Attorney, and any other individuals-or associations interested in or potentially aggrieved by LTLCO's proposed use of the property as a reception center, are hereby authorized to present a certifled copy of this declaratory resolution before any commission, hearitig board, or other-judicial tribunal having jurisdiction to consider and/or regulate LILCO's proposed activity as aforesaid and 4 The 1oun Clerk is hereby authorized and directed to transmit a certified

• copy of this resolution to the  ;

federal Nuclear Regulatory Comnission and to LILCO. (

The foregoing was adopted upon roll call as follows:

AYES: SEVEN (7)

NOCS: NONE (0)

COUNCILMAN BEPSSTEIN ASSTAINEL FROM VOTING.

O

i.3 t

APPENDIX B 4

i

i.

,l . -

]Meetingof June 23, 1987 RISOLUTION NO. 685-87 1 designated its property located atwHEREAS, the Long Island Lighting hat Company ("LIL 175 East Old County Road, i Hicksville (the property), Town of Oyster Bay (the Town), Nassau

!' County, New York, to be a reception center at which LILCO intends to conduct monitoring and, if necessary, decontamination of many og thousands emergency at ofShoreham; people and andvehicles in the event of a radiological *

,1 WHEREAS, LILCO has represented to the Nuclear l Regulatory Commission and others that the property will be ll,1availabeforuseassuchareceptioncenter;and

l46, Block Q, WHEREAS, Lots 13, 242,the property, further identified as Section '

d of Nassau County, is located in an "H"243 and 247 on the Land and Tax Map p Industry), pursuant Industrial District (Light

}OysterBay;and to the Building Zone Ordinance of the Tcwn of j

Sections.507 and 508 thereof, expressly delineates those limitedWHER activities lawfully befor which used; andthe property, as currently zoned, would  ;

i i

WHEREAS, LILCO's proposed usage of the property as a

l the provisions of Di ireception center, as aforesaid, would constitute a l violation of o v sion 4, Sections 507 and 508 in that said j ll activity is not a use which is expressly permitted thereby; and ,

Commission, in writing, in the form of a copy of a letter toWHEREAS, this I;,I LILCO f rom this Board

, dated January 28, 1987, that LILCO's jrepresentationswereinconsistentwiththeTown'szoninglaws; and i

h e 1987 WHEREAS, LILCO was advised by letter dated January 28, I n

from Supervisor Joseph Colby and members of the Town Board, that anythe violate attempts Town's to use the zoning laws; property and as a reception center would ,

d WHEREAS, LILCO has not l

1987 letter, and has continued to representrespondedthat to the January 28, available for use as a reception center in the event of athe property is

, i radiological emergen g at Shoreham; and I

B I

,I s s WHEREAS, LILCO has not in any way sought an amendment

' l sought to the zoning provisions applicable to the property or otherwise  !

,}o a reception to obtain the and center; necessary permission to use the property as Il T WHEREAS, this Board has authority to determire which uses are pemiscible under the Town's zoning laws, NOW, THEREFORE, BE IT RESOLVED, that LILCO's proposed use 242, of the property, identified as Section 46, Block Q, Lots, 13, l '

243 and 247 on the Land and Tax Map of Nassau County, and

I l' further known as 175 East Old Coun*,y Road, Hicksville, Tcwn of

.I Oyster Bay, New York, as a receptien center as hereinbefore described, Zone Ordinance, is wholly violative of as aforesaid; andthebeprovisions it further of the Buildir.;

a] in accordance RESOLVED, with the That the adoption provisions ofofSection this resolution 4540(a) shall, I Practice Law and Rules of the State of New York, and in of the Civil accordance with the provisions of Rule 803(B) of the l'ederal j

- Rules of Civil Procedure, be deemed prima facie evidence of all I statements of fact contained herein, which facts have been ascertained and adduced by this Town Beard, pursuant to evidence i

submitted laws and be andit testimony further received in due course and as provided by RESOLVED, That the Town Clerk is hereby authorized and directed to transmit a certified copy of this resolution to the I; federal Nuclear Regulatory Commission and to LILCO.

The foregoing members resolution was declared adopted after a poll of the of the Board, the vote being recorded as follows:

Supervisor Colby Aye Councilman Hogan Absent

' Councilman Diamond Aye 2

Councilman Clark Nay !i l Councilman Hynes Aye

,, Councilman Venditto Aye

.l Councilman Delligatti Aye l

. cc Supervisor il Town Board q Town Attorney i

Comptroller (2)

• 1 l

'l 1

1 STATE OF NEW YOFK, I COUNTY OF NASSAU, s s. :

TOWN OF OYSTER BAY I, XMXt3KX25C922KXV2QGQLCK MMi@tPKM74%MEX%MEXX i , ,

FANNY CCRSENTINO l Deputy Town Cer=, or tne To.n or, Oyster Bay, and cuarodian of the Records of said Tawn, DO HEREBY CERTIFY that I have compared the an-nexed 23 June the o[' ~ al RESOLUTI",N NO. 685-E7 Adopted by the Town Coard on with 198 to use hei relating to the Town of Ovster Bay a ob ection by LILCO the event ok knre kmerertency at Hicksville at Shoreha,mNt 1s.wholly as a regeo on cc ter in viol ive o the pro-visions of the Build ng Code Ordinance of the town of Oyster Bay f.!ed in the Town Cerk's Office l and that the same is a true transenpt thereof, and of the who'e ci such orpna!.

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In Teatimony Whereof. I have hereunto signed Q my name and afiimed the seal of said Town this/ 2 4 th day of 'une, 1987 1

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APPENDIX C o

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o o i Councilman Cunningham of f ered the following resolution and moved its adoption, which resolution was decl ar ed adopted af ter a poll of .the members of this Board RESOLUTION H0. 318- 1987 A RESOLUTICH AATIFYING AND REAFFIRMING THE TOWN. 0F NORTH HEMPSTEAD' S LETTER TO THE ATOMEC SAFETY AND LICENSING BOARD DATED DECEMBER 11,

'1986, AND A LETTER DATED JANU ARY 16, 1987, '20 THE LONG ISLAND LIGHTING COMPANY WHEREAS,' the Town has expressed its oppositJen to tha proposed use' of the Long Island Lighting Company's (EILCO) yard at Willis Avenue in Roslyn as an evacuation and reewyti >n center in the event of a radiological accident at the Shaarehan Nuclear Power Centers and ,

j WHEREAS, the Town previously communicated its objection to tha proposed use through a letter to the Attomic 1

Saf ety and Licensing Board dated Decembe r 11, 1986, (a copy of arod wh4.ch is attached hereto) as violative of the Town Codes WHEREAS, the Town through a letter (a copy of which is attached hereto) sent by Supervisor Kiernan dated January 16, 1987, to Willian Catacosinos, Chairman of ILILCo, inf ormed LILCO that the Town Soning Code did not persi'c the use of the Willis Avenue yard as an evacuation and reception center

-and that the proposed use would violate local soning leurs and requested LILCO to refrain from representing that the Willis Avenue yard could be legally used as an evacuation and reception centers and WHEREAS, the Town Board wishes to ratify and reaf firm the objections and statements contained in thne two aforementioned letters.

NOW, THEREFORE, BE IT RESOLVED that the objections and statement stade in the letter s of December 11, 1986, and January 16, 1987, red a ting f acili ty to the prop'osed use of the LILCO Willis Avenue, Roslyn, as an evacuation and reception center are hereby r a ti f ied and reaffirmed and be it further

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// RESOLVED that the Town ' Attorney is hereb; [ ,

authoria 4 ,and directed to transmit a copy of this resolution .

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together with copies df the respective letters to the Atomic' I

Safety and Licensing board. ,

r Dated: Manhasset, New Yo k .

June 30,198? , .

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The, voto on the foregoing tesolution was recorded as  ;

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'Ayepa' cours.ilman cunningham, Fuschillo, Guarino, Pcnessa and supervisor Kiernan  ;

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Copy to: Town httorney (2)

Comptr011er i

STATE OF NEW T0ilE, . ,

\ t COUN1*T OF NASSAl7, , es. : '

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2'0WN OF KCntTH HEMPSTEAD '

!. JOHN 5. DitVr.NZO., TOWN CLERE of the TOWN OF j i

NORTH HEMPSTFhD and custodian of the records of sa.id Town, DO HEREBT CERTIFY thht I have =ompared the antered with the 3 original '

t on fila in my office, and that the same is a true transcript thereof, and the whole of said original. '

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s 1N TEST 1MOST it' HEREOF, I hate here'unto sigwd my name and affixed the off;cial seal of enid TOWN.

this day of 19 l

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