ML20196D319

NRC Staff Response to Lilco Motion for Summary Disposition of Contentions 4 & 9 (Tow Trucks & Fuel Trucks).* Facts Matl to Summary Disposition,Except Facts Re Adequacy of Local Response Communications,Should Be Deemed Established

ML20196D319
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	02/10/1988
From:	Johnson G NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20196D196	List: ML20196D194 ML20196D220 ML20196D272 ML20196D319 ML20196D323
References
CLI-86-13, OL-3, NUDOCS 8802170074
Download: ML20196D319 (9)

Text

s' FEB 101997

' 00CKETED USNP.C UNITED STATES OF AMEP.lCA -

NUCLEAR PEGULATORY COMMISSION '88 FEB 12 P3 :48 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD f C 0

]

DHANCM in the Matter of )

)

1.ONG ISLANE, LIGilTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Statien, )

Unit 1) )

NRC STAFF PFSPONSE TO LILCO MOTION FOP

SUMMARY

DISPOSITION OF CONTENTIONS c AND 9 (TOW TRllCKS AND FUEL, TRUCKS)

1. INTPOCUCTION LILCO's Motion for Summary Disposition of Contentions 4 and 9 (Tow Trucks and Fuel Trucks), filed December 18, 1907, seeks summary disposition el Contentions 4 and 9, which were remanded to the Licensing Peard for consideration of factual issues raised by LILCO's "realism" defense. CLl-86-13, 24 NRC 22, 30-33 (1986). Contention 4 asserts that LILCO lacks the leoal authority to remove obstructions from public roadways, including the towing of private vehicles. As a result, it is contended that LILCO cannet iry krent this aspect of the LILCO Plan.

Contention 9 asserts that LILCO is prohibited from dispensino fuel from its tank trucks to automcbiles which may run of out gas during an evacuation, and, as a result, L I LCO's Plan for doinn so cannot be Irip!eroen ted . See PID, 21 NPC 644, 960, 962 (1985).

In C LI-86-13, the Ccamist.lon assumed the factual premise of these contentions - i.e. , that LILCO lacked authority to perform the State or County roles in these areas. 24 NPC at 30-31. However, the Commission 8802170074 880210 PDR ADOCK 05000322 G PDR

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also assumed that in an actual radiological emergency, both _the State of New York and Suffolk County would exercise their authority to protect their citizens, and would use their "best effort s" to respond to an accident, using the LILCO Plan as the best source for emergency planning information and options . M. at 31. This assumption was reaffirmed by the Commission as a generic presumption in its recent amendment to 10 C.F.R. Section 50.47(c)(1), 52 Fed. Reg. b2006 (November 3, 1987). 1 As a result of both CLI-86-13 and Section 50.47(c)(1)(lii), the presumption that State and County authorities would generally follow the L!LCO Plan removed the defut of lack of legal authority. However, in Cl.1-06-13, the Commission directed the Licensing Board to examine -

whether, based on the lack of familiarity of State and County officials with the LILCO Pla n , or delays in alerting the public or in making decisions and recommendations on protective actions, whether the LILCO Plan with a presurrea best effort government response using that plan woulc' be adequate. 24 NRC at 11. The Licensing Board was directed to "use the existing evident!ary record to the maximum extent possible, but should take additional evidence where necessary." [Foetrote omitte d . ]

M. at 32.

1/ Section 50.47(c)(1)(lii) states, in part, that "it may be presumed that in the event of an actual radiological emergency state and local

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officials [who had heretofore not participated in emergency planning) would generally follow the utility plan" unless that presumption was rebutted ' by, for exartple, a good faith and timely proffer of an adequate and feasible state and/or local radiological emergency plan that would in fact be relied upon in a radiological ervrgency." S2 Fed. Peg. 42086.

o Similarly, the new Section 50.47(c)(1)(ill) requires Licensing Boards, In. ruling on the adequacy of a utility-only plan , to determine the adequacy of the state and local government best efforts response, in combination with the utility's compensating measures, on a case-by-case basis, subject to the presuraption stated above, in its September 17, 1987 Memorandum and Order rejecting LILCO's

previous c,mnibus motion for summary disposition of the legal authority contentions, the Licensing Board observed with respect to Contention 4:

. . . one cannot say from the present record how these obstructions would be removed, who would remove them, or how their removtl would be coordi-nateit with such other functions as guiding traffic and selectino alternate evacuation routes. It is not clear who would be in overall charge of a clear and well-planned response.

,l d,. at36. With respect to Contention 9, the Board regarded the subject of that contention to be a safety feature, as to which it was found to be "presently unclear how . . .[it) would function, or indeed, whether it would function at all." M.at39.

As discussed below, however, two overridino considerations provide ariswers to the questions raised by the Licensing Board, and, with one exception, to the questions on plan adequacy raised by the Commission.

F'irst, the licensing Board previously found the LILCO Plan adequate (apart from Icgal authority) insofar as it deals with removal of road cbstructions by LILCO tow trucks, or the provision of fuel by LILCO tank trucks along evacuation roadways. PID, 21 NRC at 797, 811, 812, 813, 815, 816. And second, the requirement to presume that government authorities will use their best efforts to attempt to implemert the LILCO Plan dispesos of the questions of who would be in charge, what actions

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would be taken, and how those actions would be coordinated. Y!hile the rt. cent initial Decision, L B P-8 8-2 , precludes a finding that LERO internal communications ' are sufficient to assure adequate implementation of the l

functions covered by Contentions 4 and 9, there are no issues with respect to familiarity with the LILCO Plan , decisionmaking and recomraendations , or implernentation by the governments requiring evidentiary proceedings. Accordingly, all material facts with respect to thosc matters other than internal LERO communications should be deemed establishccl.

fl. DISCUSSION A. The Adequacy cf the LILCO Plan on Removing Road Obstacles and Dispensing Fuel,_ _ _

The adequacy of LILCO's plans for removal of road obstructions with i

l LILCO tow trucks, and for dispensing fuel to automobiles which had run out of gas along evacuation roadways was fully lltigated in this proceeding. See PID, 21 NRC at 795-797, 809-816. The Board found that "the number of vehicles involved in actual road blockage [because they had run out of gas] would be modest relative to the total evacuating traffic and that reasonable means of mitigation exist." M. at 797. The Board, moreover found that LILCO would have sufficient numbers of road crews to clear disabled vehicles from roadways. M . at 811. The Board found that the LILCO Plan adequately took into account possible delays in tow trucks reaching road obstructions. M. at 812. Finally, the Board found that although provision of fuel to evacuees who had run out of gas was not required, LlLCO's plan to provide such service was adequate.

M. at 816. Thus, Intervenors had an opportunity to litigate whether

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LlLCO tow trucks could adequately remove vehicles ob'structing roadways and whether LILCO tank trucks would adequately dispense fuei to evacuees who - had run out of gas, and were unsuccessful. Thus the I.lLCO plan for implementing these protective measures is not now open for litigation. U Moreover, insofar as the exercise of police functions to facilitate traffic flow is concerned, the Board also rejected contentions claiming that the local police would nct perform normal security and other functions required to deal with an emergency. See Special Prehearing Conference Order, August 19, 1983, slip op, at 15, 20. Thus, it canrbt be success-fully contended on this remand that the Suffolk County police department would not be fully capable of dispensing fuel or calling in a tow truck to remove roac obstacles as needed. See Roberts, g g., ff. Tr. 2180, at

- C , Attachments 1-5 (Suffolk County Testimony on Contention EX40) .  ;

B. Undcr Section 50.47(c)(1)(ill) and CLI-86-13, it is the LILCO Plan with Respect to Removal of Road Obstructions and Provision of Fuel

{hich will be implemented Under the presumption, created by the new emergency planning rule amendments and CLI-86-13, that in an actual emergency, the State and local authorities who had previously not participated in planning would respond on e best efforts basis generally following the utility plan, two I

2/ The recent initial Decision issued by the OL-5 Licensing Board found l

no fundartental flaw with respect to plans for removing road obstruc-l tions. LBP-88-2, slip op. at 27, 55. However, fundamental flaws l relating to communications for dealing with unexpected events and

! relating to training were fou nd . Id. at 53, 250-252. See

! discussion, infra, l'

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4 key facts must be deemed established. First, in an actual emergency, if the emergency situation required the police to respcnd to impediments to

• '  :- flow, whether caused by accidents or cars out of gas, the police woutcr attempt to respond. Second, in the absence of another timely proffered, adequate and feasible plar. which would be relled upon, it is the Lit.CO Plan, as approved by this Licensing Board, which would be implemented by the Suffolk County police. See 10 C.F.P.. Section 50.4~(c)(1)(lii). This means that in the absence of another such plan for removal of road obstructions and dispensing of fuel, local authorities -

here those authorities charged with traffic control responsibility, the police - would utilize on a best effort basis the information and options which the LILCO Plan provides them. Thus, the uncertainty expressed on September 17,1987 by the 1.icensing Board as to who would implement the plan, and how it would be implemented is' resolved by the new rule.

C. Whether Lack cf Famillarity with the Plan , Decisionmaking a r.d R ecommendations , or Fleid implementation by the Police Would Lead to, Delay in Response _,, __

The question rer.alns whether, given the acceptability of the LILCO Plan with respect to rerroval of road obstacles and provision of fuel, the presumption of a best efforts government response generally foltowing the LILCO Plan, and the established capat ility of the Suffolk County police to perform normal traffic contro! functions such as removal of road impediments on evacuation roadways, "there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." 2 t4 NPC at 29, 10 C.F.R. Section 50.47(c)(1)(lii).

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In providing guidance to the Board as to making _ this determination, the Corrmission stated that the Board should "use the existing record to the maximum extent possible" to determine the familiarity of local officials with the LILCO - plan and possible delays in making. decisions or recommendations on protective action. CLi-86-13, 24 NRC 31-32, Tlie facts necessary to addrcss the Commission's cuestions concerning familiarity and the possibility of delay in decisionmaking and response are, with one exception, established in the record. The existing record establishes that high-ranking Suffolk County police officers are feraillar with the LILCO Plan in regard to traffic control strategics. S e, eg. Roberts et al., ff. Tr. 2180, at 16, 25, 31-32 and

,id, , ff. T r. 1134, at 14-18. The Suffolk County police's normal duties include the removcf of stalled vehicles and accidents from the roadway, and thus they know how to perforni these tasks. See Special Prehearing Conference Order, August 19, 1983, slip op. at 15, 20; Roberts et a! . ,

(f. Tr. 2180, at 2-8, Attachments 1-5; 20 NRC at 793. No issue exists as to whether the Ccunty police using their best efforts could deal with stalled vehicles.

With respect to timely decisionmaking, the record establishes that the LILCO Plan provides for coordination of LERO with the Suffolk County Police Department. OPIP 3.6.3, Attachment 15. In addition, there is a dedicated phone system, the Radiological Emergency Communications System (RECS) connecting the LERO EOC with the County police department. Admitted Facts 8, 10. See, Memorandum and Order, December 1, 1987, at 4 As a result, LERO should be able to link up

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. with the County police communications network in the event of an emergency. See Admitted Facts 3, 4, 5.

The remaining' question is whether, once communications were so established, the LERO communications network would 'be sufficient to assure implementation of the 'necessary instructions between the LERO EOC and the LERO road crews. The OL-5 Initial Decision, L B P-88 -2, found a fundarr. ental flaw in the LERO internal communications structure.

,l d , at ' 53, 251. As a result, it cannot be determined on the current record that communications between tiie LERO EOC and LERO tow truck and tank truck crews would be adequate, and summary disposition as to th:s matter cannot be granted. U Nevertheless, while summary disposition of contentions 4 and 9 cannot be granted, no material facts are genuinely in dispute with r espect to (1) the adecuacy of the LILCO Plan for removal of road obstructions and dispensing of fuel to cars out of gas, (2) the ability of LERO to contact and coordinate with Suffolk County police, (3) the ability of the County policc to make timely decisions te implement the LILCO Plan on a best efforts basis, and (4) the ability of the police to implement the actions, Et issue in contentions 4 and 9. These facts should he deemed established, i

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-3/ With rcspect to the performance of assigned functions by road crews and tank truck crews, the findings with respect te flaws in the i LERO training p rog rarr. did not go so far as to find that these i

functions could not be adequately performed. See, M., at 53, 55.

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, ~lli. , CONC LUSION -

The Board'should find .that all facts material to summary- disposition of Contentions 4 and 9, except those facts concerning the adequacy _of internal LERO communications,'should be deemed established.

Respectfully. submitted

& CAL.; Q : .-

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y/Ceorge E3 Johnson Counsel for NMC Staff Dated at Reckville, Maryland this 10th day of February,1988 .