ML20117P452
| ML20117P452 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/03/1985 |
| From: | Christman W HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20117P450 | List: |
| References | |
| OL-3, NUDOCS 8506060380 | |
| Download: ML20117P452 (192) | |
Text
.
UNITED STATES OF AMERICA ,,
NUCLEAR -REGULATORY COMMISSION l DOCKETED USNRC Before the Atomic Safety and Licensing Appeal Board 5 TS JUN -5 All :08
. In the Matter of )
LONG lSLAND -LIGHTING COMPANY -
Docket No. 50-322-OLh[c'df7 IG .jcg!{'< 5
) (Emergency Planning DRA.v:8
- (Shoreham Nuclear Power Station,
~
) Proceeding)
' Unit 1) )~
LILCO'S BRIEF SUPPORTING ITS POSITION ON APPEAL FROM THE " PARTIAL ' INITIAL DECISION ON EMERGENCY PLANNING" OF APRIL' 17, 1985 Hunton E, Williams 707 East Main Street P.O. Box 1535 Richmond, VA 23212 June 3,1985 1
8506060300 PDR 850603 O
ADOCK 05000322 PDR
4
' LILCO, 'Juna 3,1985
,1
~
- UNITED. STATES -OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board
.In the Matter of ' )
).
LONG -lSLAND LIGHTING. COMPANY ) Docket No. 50-322-OL-3
) - (Emergency Planning (Shoreham Nuclear Power Station, -) Proceeding)
Unit 1)- -)
LILCO'S BRIEF SUPPORTING ITS POSITION ON APPEAL FROM THE " PARTI AL INITI AL DECISION
'ON EMERGENCY PLANNING" OF APRIL 17, 1985 i
?-
Y
, TABLE ~ OF ~ CONTENTS 4
s
. INTRODUCTION BACKGROUND-h
~ ARGUMENT
- l. '
THE PID READS " UTILITY = PLANS OUT OF THE LAW.............................................................4
- A. The PID Makes Utility Plans impossible . . . . . . . . . . . . . . . . . . . . . . 4
"_ <B. The PID Contradicts the Commission's Inter-pretation of its Regulations, Particularly 10 C . F . R '. $ 50 . 47 ( c ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 4
C. The Decision, if Allowed to Stand, Will Be F a r - R e ac h i n g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
- 11. - THE PID " LEGAL. AUTHORITY" DECISION IS WRONG ON FOU R IN DEPENDENT G RO UN DS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A. The State Laws are Preempted- by the Atomic EnergyAct.................................................. 10 V
- 11. Congress Has Consistently Preserved Federal' Authority Over Radiological H e a l th a n d ' S a fe ty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 i 2. Regulation of Emergency Planning is Squarely Within the Preempted Field
!' of Radiological Health a nd Safety . . . . . . . . . . . . . . . . . . . . . . . . 16 l
l 3. The PID Misapplies the " State Purpose" Test . . . . . . . . . . . 18 y 4. The State and County Purpose is Unequivocally Radiological Health and Safety . . . . . . . . . . . . . . . . . . . . . . . . . . 19
- 5. Congress Has~ Evidenced Specific intent Not to Allow States to Use Eniergency Planning to Sh ut Down N uclea r Pla nts . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
- a. The 1980 N RC A uthorization Act . . . . . . . . . . . . . . . . . . . . 24 I.
. -ii-
- b. . The N RC's New Emergency Planning Rule. . . . . . . . . . . .' 26
.c. . The 1982-83 Authorization Act . . . . . . . . . . . . . . . . . . . . . 27 '
- d. The ' 1984-85~ A uth'orization Act . . . . . . . . . . . . . . . . . . . . . . 28 -
- 6. The Case Against Preemption is insubstan-ti a l a t B e s t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
- 7. State Law is Preempted Becau::4 it is impossible to: Comply.With Both . State
. Law a nd N RC Reg ulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
- 8. State Law-is Preempted -Because it Stands as an Obstacle to.the Purposes and Objec-ti ve s of C o n g re s s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
- 9. .LILCO Has the Necessary Affirmative Leg a l A u th o r ity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
- 10. . The Tenth Amendment Does Not Give -the State the Right..to Regulate Emergency P l a n n i n g . . . . . . . . . . . . . . . . . . . . . . . . . . . .' . . . . . . . . . . . . . . . . . . . 43 B. The Board incorrectly Rejected LILCO's " Realism" A r g u me n t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5 -
.C. The Board incorrectly. Rejected LILCO's "I mmate riality" A rg u me n t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 D. 'Even Without Preemption, LILCO's Plan is Acceptable U nder S 50.47(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 lli. THE " CONFLICT OF INTEREST" FOUND BY THE BOARD DOES NOT PREVENT LILCO FROM IMPLEMENTING A S U P E R I O R EME R G EN C Y P LA N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 '
A. The Board's First Error: Setting Up "Indepen-da nce" a s the Sole C rite rion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 B. The Board's Second Error: Assuming a Diver-
- ge n ce of " I n te re s t s " . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 C. The Board's Third Error: Making a Universal
.and Inescapable Fact of Life into a Bar to a U t i l i ty P l a n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
.D. The Board's Fourth Error: Exalting the i n s u b s ta n ti a l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2
1
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E. - The Board's Fifth Error: Ignoring the Indepen-dence of . Non-LILCO . Person nel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
~IV. LACK OF COORDINATION WITH THE STATE IS NOT A VIOLATION OF N RC REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 V. C O N C L U S I O N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 4
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TABLE OF. CASES, STATUTES, REGULATIONS AND OTHER AUTHORITIES CITED
~
Cases Alessi'v.-Raybestos-Manhattan, Inc., 451 U.S. 504, 524 (1981)........................................... 19 Citizens for an Orderly Energy Policy, Inc. v.
r- Suffolk County, CV-83-4966 (E.D.N.Y.
Mar, 18, 1985.................................... 12, 31
.Cuomo v. LILCO, Consol. Index No.84-461 (N.Y.
Sup. Ct., Feb. 20, 1985)..................... 5, 18, 20, 21, 36, 46 Douglas v. Seacoast-Products, Inc., 431 U.S.'265 (1977)........................................... 37, 42 Fidelity Federal Savings &-Loan-Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982).... ................ 39 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963).................................. 36, 37 Friends of the Earth v. Carey, 552 F.2d 25, 38 (2d Cir.), cert. denied, 434 U.S. 902 (1977)............................................... 44 Garcia v. San Antonio Metropolitan Transit Authority, 105 S.Ct. 1005 (1985)................. 43, 44 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)............... 43 Huron' Portland Cement Co. v. Detroit, 362 U.S. 440, 447 (1960)........................................... 43 National' League of Cities v. Usery, 426 U.S.
833 (1976)........................................... 44 Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Development Comm'n, 461 U.S.
190 (1983)............... 11, 13, 14, 15, 18, 19, 38, 39 Pennsylvania v. Nelson, 350 U.S. 497, 502-04 (1956)............................................... 16
h-b
, (Perez v.-Campbell, 402 U.S. 637,-651-52 (1971).............. 18
-Ray'v.-Atlantic Richfield' Company, 435 U.S.
~
151 (1978)........................................... 37, 41 Silkwood v. Kerr-McGee' Corp.,.464fU.S. 238, 104 S.Ct.
615 (1984)............................... 11, 23, 39, 41
.Sperry v. Florida,f373 U.S. 379 (1963).................. 42, 43
. United' States v. Best, 573 F.2d 1095, 1102-03 (9th
-Cir. 1978)........................................... 44 United' States'v. City of New York, 463 F. Supp. 604, 614'(S.D.N.Y. 1978).............................. 21, 22 NRC Cases Carolina Power & Light Co. (Shearon Harris Nuclear Plant, Units 1 & 2),_ASLBP.No. .82-472-03.0L, slip op. 10-11-(June 14, 1984) (unpublished)......... 57 Consolidated Edison Co. (Indian Point, Unit Nos. 2
& 3), CLI-83-16, 17 NRC 1006, 1010 (1983)............ 51 Consolidated Edison Co. (Indian Point, Unit Nos. 2
& 3), CLI-83-11, 17 NRC 731, 733 (1983).............. 52 Consolidated Edison Co. (Indian Point, Unit Nos. 2
& 3), CLI-82-38, 16 NRC 1698, 1703 (1982)............ 52 Consolidated Edison Co. (Indian Point, Unit Nos. 2
& 3), LBP-83-68, 18 NRC 811 (1983)............... 54, 63 Detroit Edison'Co.,(Enrico Fermi Atomic Power Plant, Unit 2), ALAB-730, -17 NRC 1057, 1069.n.13 (1983).=.................................... 50 Duke Power Co. (Catawba Nuclear Station, Units 1
& 2), LBP-84-37, 20 NRC 933 (1984)............... 45, 52 Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360 (1985).......... 54 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-9, 19 NRC 1323, 1327 (1984)........................................... 8 i
[
~
'Long' Island LightingtCo. (Shoreham' Nuclear Power Station, Unit 1), CLI-83-17, 17 NRC 1032, 1034 (1983)........................................... 8 Long I'sland Lighting Co. (Shoreham Nuclear Power-Station,-Unit 1), LBP-83-22, 17 NRC 608, aff'd,-CLI-83-13,.17 NRC 741 (1983)......... 2, 6, 7, 8, 12, 19, 34, 38, 50, 51 Long Island Lighting Co. (Shoreham Nuclear Power Station,. Unit-1), LBP-85-12, 21 NRC (1985)
(the-PID)................................... 1, 2,.3, 5, 10, 19, 22, 36, 39, 47, 48, 49, 50, 53, 54, 55, 59, 63, 65, 66, 67, 69 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Order confirming Changes in Schedule with Regard to " Group II" Con-tentions and Rulings on Motions to Strike (Dec. 2, 1983)....................................... 69 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Memorandum.and Order, JAug. 30, 1983, at 3 (unpublished)..................... 8 Louisiana Power & Light Co. (Waterford Steam Elec.
Station, Unit 3), ALAB-801, 21 NRC (March 22, 1985)................................................ 54 Louisiana Power & Light Co. (Waterford Steam Elec.
Station, Unit 3), ALAB-732,.17 NRC 1076 (1983)....... 54 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193 (1984)............................................... 54 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-698, 16 NRC 1290, 1312-13 (1982)....................................... 57 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-781, 20 NRC 819, 831-32 (1984)............................ 18 Pacific Gas & Elec. Co..(Diablo Canyon, Units 1 and 2), ALAB-644, 13 NRC 903, 937 (1981)................. 52
r.:
~4-
' Pacific Gas and-Elec. Co. (Diablo Canyon Nuclear
. Power. Plant, Units 1 and 2), LBP-82-70, 16 NRC 756, 827.1 205 (1982)............................ 57 E
~
Petition for Emergency and Remedial Action, CLI-78-6, 7 NRC 400, 418 (1978)...................... 57 Public Service Co. of New Hampshire (Seabrook' Station, Units 1 & 2), ALAB-471,-7 NRC 477, 498, ~rev'd as to other matters, CLI-78-14, 7 NRC 952 (1978)..................................... 69 Southern California-Edison Co.-(San Onofre Nuclear Generating Station, Units 2 & 3), LBP-82-39, 15 NRC 1163 (1982)............................... 51, 57 Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), LBP-77-68, 6 NRC 1127-(1977), aff'd as to this issue, ALAB-491, 8 NRC 245 (1978)................................ 54 Statutes Atomic Energy Act of 1946, Act of Aug. 1, 1946, 60 Stat. 755............................................ 12 Atomic Energy Act of 1954, 68 Stat. 919, 42 U.S.C.
$ 2011-2281 (1976 ed. and Supp. V)........ 13, 14, 23-24 Clean' Air Act, 42 U.S.C.A. 6 7422 (West Supp.
1978)............................................. 14-15 Department of Housing and Urban Development --
Independent Agencies Appropriations Act, *
- 1984, Pub.L. 98-45, 97 Stat. 219................. 28, 45 Department of Housing and Urban Development --
Independent Agencies Appropriations Act, 1985................................................. 46 Hazardous Materials Transportation Act, 49 U.S.C.A.
6 1801-12 (1976)..................................... 15 N.Y. Exec. Law Article 2-B (McKinney 1982).............. 45, 47 1984-85 NRC Authorization Act, 6 108, Pub.L.98-553, 98 Stat. 2827 (Oct. 30, 1984)........................ 28
7;3
' j_ :n-r-
4 i
, .. , T _S.
--1982 NRC Authorization Act, Pub.L.97-415, 55, 97th Cong., 2d Sess., 96 Stat.,2069 (Jan. 4,
- . 1983)................................. 6, 16, 27,=50, 51
. 1980 NRC Authorization Act, Pub.L. No.:96-295, 96th Cong.,.2dJSess., 94 Stat. 780-84-(June 30,-
J1980)........................................ 15,-24, 25
' Nuclear Waste Policy Act'of 1982' 42 U.S.C.A.
-9 10121, 10135-38 (1983)............................. 15 Regulations 10 C.F.R.'S 50.47....................... 10, - ~ 2 3 , 24, 50, 51, 67 Other
-Affirmation in Support of Respondents' Motion to Dismiss and.in Opposition to Petitioners'= Motion
' for a Preliminary Injunction, at 5 1 16, Dec. 9,
. 1982,.in Cohalan v. New York State Disaster
. Preparedness Ccmmission, Index No. 5145-82 (N.Y.
Sup. Ct., petitien filed Dec. 6, 1982)................ 3 Complaint for Declaratory Judgment, filed Mar. 8,
-. 1984,11n Cuomo v. LILCO.............................. 20 1
130 Cong. Rec........................................... 31, 35 129 Cong. Rec............,................................... 29 128 Cong. Rec........................................ 6, 27, 35 127 Cong. Rec............................................... 16 124 Cong. Rec...................................... 24, 25, 32 Evidentiary exhibits..................................... 3, 61 50-Fed. Reg. 20,892, 20,894 col. 1 (May 21, 1985)........... 52 45 Fed. Reg. 55,406-07 (Aug. 19, 1980)...................... 26 45 Fed. Reg.'55,404 (Aug. 19, 1980)................. 17, 26, 34 45 Fed. Reg. 55,403 (Aug. 19, 1980)......................... 51 44 Fed. Reg. 75,169 (Dec. 19, 1979)......................... 17 i
y, <,.
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+
-Hearing.' transcript'(Tr.)............ 4, 20,~40,.50, 53, 54,.55, 56, 57, 58, 59, 60, 61, 62
%; ~
'63, 164,. 65,. 66, 68
' H . JRep . : No .98-803.......................................... 46 H. Rep. No.98-223...................................... 28,146
.H. Rep. No.98-103......................................... 135' H. . Rep.'No.;97-884.......................................... 16 E H.' Conf.IRep. No. 196-1070............................... 25, 51 H. Rep. No.95-564........................................... 15
~ Letter from Governor Mario M. Cuomo to Judge B. Paul
. Cotter, _ Jul'y' 11', 1983, at 1.......................... 21
-Letter from Nunzio J. Palladino to Senator Alan K.
Simpson, Feb. 26, 1985, at.1.......................... 8 LILCO Plan................................................. 40 LILCO procedures (OPIPs).................................-40, 62 LILCO's Brief on Contentions 1-10, Nov. 19, 1984, at 42-66.-............................................... 47 LILCO's Motion for Summary Disposition of Contentions:
1-10 (the " Legal Authority" Issues, at 45 (Aug.
6, 1984)............................................. 40
-NUREG-0845.................................................. 65 NUREG-0728.................................................. 65
'NUREG-0684.................................................. 17 NUREG-0654.................................. 24, 26, 49, 51, 67 Proceedings of Workshops on Proposed Rulemaking on Emergency Planning for Nuclear Power Plants, NUREG/CP-0011-at 5 (January 1980).................... 17 Proposed findings (various parties)................. 40, 58, 62 S.562, 9 202(a) and (b), 124 Cong. Rec. S.9464 (daily ed.' July 16, 1979)............................ 24 S. Rep. No.98-546......................................... 30
S. Rep. No'.96-176.......................................... 24 S. Rep. No. 870, 86th Cong.,-1st Sess....................... 14
- Suffolk County'and State of-New York Response to
~
LILCO Motion for Referral to the Commission or, s Alternatively, Severance and Expedited Review of Legal Authority Issues, May 15, 1985, at
~13-14...'............................................. 12
.Suffolk County Executive Order 1-1985........................ 2 Summary!of Public Comments and NRC Staff Analysis Relating to Rulemaking.on Emergency Planning for Nuclear Power Plants, NUREG-0684, at 2-7 (Sept.l1980)......................................... 17 U.S. Const. amend.X............................. 32, 43, 44, 45 i
k
IDENTIFICATION OF ERRORS OF FACT OR LAW THAT ARE THE SUBJECT OF THE APPEAL A. General (Contentions 1-11, 92)
- 1. The Licensing Board's rulings on Contentions 1-11 and 92 are contrary to 10 C.F.R. S 50.47(c)(1) and three successive NRC authorization acts because they eliminate the possibility of "utili-ty plans."
B. Legal Authority (Contentions 1-10)
- 2. The Board incorrectly held that state law, which prohibits utility plans, is not preempted by the Atomic Energy Act.
- 3. The Board failed to recognize that lack of legal authority is a purely hypothetical problem and would not affect the public health and safety in a real emergency.
- 4. The Board failed to find that the emergency response functions specified in Contentions 1-4, 9, and 10 (pertaining to efforts to manage evacuation traffic) are not required by NRC regulations.
- 5. The Board failed to find, under 10 C.F.R. S 50.47(c)(1), that the LILCO Plan is an adequate " interim compensating action,"
that lack of pre-emergency state and local government participa-tion is not "significant," and that there are " compelling reasons" to permit plant operation.
C. Conflict of Interest (Contention 11)
- 6. The Board incorrectly held that a utility employee cannot be the decisionmaker in a utility plan under NRC regulations, thereby making the following specific errors:
w
y t
l.- a. The Board found '" independence" to' be the sole '
criterion of acceptance, contrary to the .evi--
dence; and to_ NRC practice,
- b. -The Board assumed,, contrary to the evidence,
.that it is-in the " interest" of utility employees to underestimate the seriousness of accidents or delay in coping with .them.
.c. The Board found as a fatal flaw in utility em-ployees' thinking the sort of subtle, uncon-scious influences that affect every human being, including elected officials.
- d. The Board placed undue weight on these sub-
-tle influences, which would almost certainly be minor compared to all the other influences on decisionmaking.
- e. The Board ignored or discounted the measures illLCO has taken to include the DOE, the NRC, FEMA, the Intervenors, and others in the de-cisionmaking process.
D. State Plan (Contention 92)
- 6. The Board incorrectly held that no matter how good a utility plan is, it cannot satisfy NRC regulations if the state and loca! gov-ernments do not cooperate.
L l
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INTRODUCTION Pursuant to 10 C.F.R. S 2.762(b), the applicant Long Island Lighting Company (LILCO) submits this brief supporting its position on appeal from the Atomic Safety and Licensing Board's " Partial Initial Decision on Emergen-cy Planning" (the "PID"), dated April 17, 1985. Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC (1985).
The PID finds that the offsite radiological emergency plan prepared by LILCO meets, or more than meets, NRC regulations in almost every respect except th ree:
- 1. LILCO lacks " legal authority" to implement certain features of the plan (Contentions 1-10, addressed at PID 386-426),
- 2. There is an inherent " conflict of interest" in having utility employees decide what protective actions to recommend to the public (Contention 11, addressed at PID 51-53), and
- 3. Although LILCO has successfully arranged to substi-tute for the State of New York in those activities that the State would ordinarily perform in an emer-gency, the fact that New York and Suffolk County will not cooperate in planning makes LILCO's plan in-adequate (Contention 92, addressed at PID 367-74).
All these issues are alike in that the Board's resolution of them, basi-cally on legal rather than evidentiary grounds, makes the NRC regulations impossible to meet with a " utility plan" unless the state or local government consents. The result is (1) to overrule the Commission's earlier decision in this case that LILCO should have an opportunity (presumably a meaningful opportunity) to show that its utility plan can protect the public health and safety and (2) to nullify Congress's express direction, in three successive
m
-_2
~NRC authorization acts, to' consider " utility plans" where state or local gov ~-
ernments fail to plan.
BACKGROUND After more than ten years of participation in offsite emergency pian-
-ning, Suffolk County in 1982 ended its cooperation with LILCO and began a new emergency planning effort. On February 17, 1983, based on a draft emergency plan-prepared by its new consultants and public hearings before the County Legislature, the County determined that " local conditions" on
. Long Island made effective emergency preparedness " impossible" and resolved not to adopt or implement an emergency plan for Shoreham.1/ As the Licens-ing Board found, the Legislature relied on its governmental police power "to protect the health, safety and welfare" of the County's residents. PID at 4.
The County did not rely on federal standards; the plan that the County re-jected was based on a 20-mile plume EPZ, some four times larger than the NRC requires.
On February 23, 1983, the County moved to terminate this NRC licens-ing proceeding based on its decision not to adopt an emergency plan. The
- Licensing Board (sometimes referred to as the "Brenner Board") denied the i
motion, ruling that LILCO had the right to an opportunity to prove that it could meet NRC emergency planning regulations .without the County's help.
1/ On May 30,1985, the suffolk County Executive issued Executive Order 1-1985, directing the Suffolk County government to review the LILCO Plan and to conduct an exercise with the County assuming command-and-control functions. The effects of this development on the NRC proceeding are un-clear, and this brief therefore does not take Executive Order 1-1985 into ac-count.
Long ' Island Lighting Co. (Shoreham -Nuclear Power Station, Unit 1),
LBP-83-22,17 NRC 608, aff'd, CLI-83-13,17 NRC 741 (1983).
Thereupon LILCO prepared its own offsite emergency plan (Revision 3
'of which is LILCO Ex. 80), to be implemented by LILCO employees, the De-
.partment of Energy, other federal agencies, the Red Cross, and private am-bulance and bus companies. The offsite organization set up to carry out the plan in an emergency is called "LERO" (for " Local Emergency Response Orga-nization") . The plan provides for the subordination of LERO personnel to of-ficials and police officers of the County and State, if those officials should choose to participate in an emergency; in the event they. do not choose to participate, the plan provides for LERO to take responsibility for recom-mending protective actions and helpir.g the public take those actions. It is this "LILCO Transition Plan" that was I;tigated in this proceeding.
The litigation was lengthy, detailed, and comprehensive, creating a
. record of over 22,000 pages. PID at 13. Throughout Suffolk County at-temp.ted to prove the plan inadequate. The State of New York, reversing an earlier position,2/ joined the County in this effort beginning in January 1985.
2/ When in 1982 Suffolk County sued the State to enjoin it from consid-ering an earlier emergency plan sponsored by LILCO, the State in its pleadings said that state law authorized private parties, like LILCO, to do emergency planning:
The Legislature never indicated that the counties are the sole entities to submit disaster preparedness plans. To the contrary, Article 2-B of the Executive Law authorizes the public and private sector to pre-pare for and meet disasters of all kinds.
Affirmation in Support of Respondents
- Motion to Dismiss and in Opposition to Petitioners
- Motion for a Preliminary injunction, at 5 U 16, Dec. 9,1982, in Cohalan v. New York State Disaster Preparedness Commission, index No.
5145-82 (N. Y. Sup. Ct. , petition filed Dec. 6,1982) .
y e g 7-w - m p
> 2
-On " April-17; of this; year the Licensing Board rendered its decision' -On
,,, ' the vast majority of- the. issues,: the Board ruled. categorically-in LlLCO's
~
1 favor, but on theLthree issues identified above, the PID findings _ destroy any
' 7 chance that alutility emergency plan can 'ever meet NRC regulations. It is-N the decision on .these issues,that is in error.
ARGUMENT 4
I. THELPID READS
" UTILITY PLANS" OUT OF THE LAW -
l As will be recounted below, Congress has three times expressly con-
- . firmed the NRC's' authority to issue operating licenses based on " utility plans" for responding to emergencies. .lf the LILCO utility plan cannot pass muster, _ none can. Despite. months of litigation over every conceivable issue, waged ~by parties with. the resources of Suffolk County and New York State, the Plan emerged almost entirely unscathed. Indeed, one NRC Staff witness testified 'it _is the best offsite plan he has ever seen. Tr.15,226 (Sears); see also Tr.12,208 (Baldwin) ("best possible" plan for schools under the circum-stances). The PlO does nothing to make one doubt that opinion.
A. The PID Makes Utility Plans impossible Despite the quality of the plan, the Board's decision makes it, and oth-
' ers -like -it, unworkable. Indeed, the quality of the plan is irrelevant, be-cause all three issues identified above were decided essentially on legal, not factual, grounds.
7 5-That~is obviously the case with the " legal authority" issue. - The Inter--
venors' Contentions 1-10 allege that LILCO's plan is illegal because certain emergency activities are prohibited by certain specific New York state and local laws. As these issues' evolved during the proceeding, however, the In-tervenors' argued not so much~ that specific laws prohibited specific activities, as that an emergency. plan is an exercise of the state's " police power" and therefore beyond the authority of private citizens and corporations. A state judge agreed with the Intervenors and found that under state law LILCO lacks 'the authority to implement its plan. Cuomo v. LILCO, Consol. Index No. 84-4.615, slip op.17 (N.Y. Sup. Ct. , Feb. 20, 1985). Although this de-cision is on appeal, all the parties accept it as the law of New York for pres--
ent purposes.
Likewise, the " conflict of interest" issue was decided based on the
'" structure" of NRC regulations, plus uncertainty about NRC procedures for coping with emergencies. PID at 63, 62. And the " state plan" issue was de-cided by concluding that NRC regulations require coordination with, and
' hence cooperation b',*, the state or local governments:
Suffolk County notes correctly that there is no provision in the .NRC case law, regulations, or guid-ance that provides for the situation that now con-fronts us wherein both the State and local govern-ments refuse to. participate in planning for an emergency and also refuse to commit to respond to an emergency at Shoreham, l.F. 783. The Board con-ciudes that the provisions in 10 CFR 50.47(c)(1) for adequate interim compensating measures were not in-tended to stretch as far as LILCO urges in this case where no participation whatever from State and local authorities can be counted on.
PID at 3G9-70. Thus, there cannot be a utility plan if the state and local government oppose it. Even if they consented, a utility plan would still be
- illegal, because. according to state law the " police power" -- that is, the right to plan for emergencies -- cannot be delegated.
PID at 412-13.
If the-PID is correct, then, the only type of utility plan.that might be allowed would be one that' filled in minor gaps, with the state or local govern-ment's consent, in existing governmental' plans. But this cannot be the true state of the law. In its 1983 motion to terminate the proceeding, Suffolk County argued that 10 C.F.R. S 50.47(c)(1) did not authorize a utility plan in the complete absence of a local government plan but rather had 'the much more limited role of allowing a utility plan to compensate for specific deficiencies in governmental plans. The NRC Staff, the Licensing Board, and ultimately the Commission disagreed. Shoreham, 17 NRC at 615, 619, aff'd, CLi-83-13,17 NRC 741 (1983).
Moreover, if the only use for utility plans were as minor " gap-fillers,"
why would Congress have bothered to authorize them expressly? There is no need for federal legislation to allow the states to use utility resources in minor respects. Yet, as described below, Congress has in three NRC autho-rization acts confirmed that the NRC may license nuclear plants based on util-ity plans. And one piece of legislative history (from the 1982-83 Authoriza-tion Act) suggests that utility plans are viable precisely where State and local
! plans are nonex'istent:
Mr. OTTINGER. . . . Currently, the NRC requires an approved State or local government plan.
- This provision allows the NRC to consider a utility plan only in the absence of a State or local government plan. The reference to a State or local plan is clearly intended to apply only to a plan which has been officially submitted by a State or local gov-ernment. A utility, therefore, cannot submit a local government plan. NRC consideration of a utility plan is a last resort and is not intended to preempt a State or local plan.
L i
128 Cong. - Rec. H8823 (daily ed. Dec. 2,1982) (emphasis added).
In. short, the PID establishes that a " utility plan" can have no role in .
u radiological emergency planning at all. This, LILCO submits, is contrary Lboth to federal legislation and NRC regulations.
B. The PID Contradicts the Commission's inter-pretation of its Regulations, Particularly .
10 C. F. R. S 50.47(c)
The Licensing Board's decision on Contentions 1-11 and 92 is contrary to the Commission's previous decision, in this very proceeding, allowing LILCO the opportunity to show that its plan could meet NRC requirements.
If it were truly the case.that NRC regulations could not be met by
" utility plans," the Commission would have said so long ago. It would have said so, first, when it decided Suffolk County's motion to terminate this pro-ceeding in 1983. At that time, the County argued that there must be a gov-ernment plan for adequate preparedness under NUREG-0654_and the NRC
- regulations. The Licensing Board disagreed. Long Island Lighting Co.
(shoreham Nuclear Power Station, Unit 1), LBP-83-22,17 NRC G08, 616-17, 625 (1983). The Board's decision was affirmed by the Commission, ruling that the NRC "is obligated to consider a utility plan submitted in the absence of State and local government-approved plans. . . ." Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLl-83-13,17 NRC 741, 743 ,
(1983). The Commission declined, however, to confront the federal preemp-tion issue presented to it by the Licensing Board.3/
3/ Only section ll.C of the Board's decision (the federal preemption analy-sis) was left unreviewed by the Commission. The Commission said that sec-J (footnote continued)
L
After LILCO submitted its plan to the NRC, the County again asked the Board to reject it on the ground that no government was involved. The Board dismissed as " nonsense" the -argument that perhaps the-Commiss~ ion had believed that the LILCO Plan would substitute. "other governmental entities" for the County and refused to certify the issue to the Commission. Memoran-dum and Order, . Aug. 30,1983, at 3 (unpublished).
Later on, in ruling on attempts by the Intervenors to prevent issuance of a low-power license for Shoreham, the Commission rejectea the argument that the offsite emergency planning situation would necessarily prevent the issuance of a full-power license, holding that the emergency planning issues at Shoreham, while difficult, were not " categorically unresolvable." Long Island Lighting Co. (Shoreham Nuclear Power Station,. Unit 1), CLl-83-17,17 NRC 1032,1034 (1983) . Later still the Commission said that Controversy over offsite planning is not some new, recent development in this case or, for that matter, distinguishable from controversy over other contest-ed full-power issues.
~ Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
CLi-84-9,19 NRC 1323,1327 (1984) . As recently as February 26,1985, the Commission advised Senator Simpson that "[t]he Commission interprets its regulations . . . as requiring full consideration of the merits of any utility pla n . " Letter from Nunzio J. Palladino to Senator Alan K. Simpson, Feb. 26, 1985, at 1.
(footnote continued) tions ll A and ilB of the Board's decision " correctly analyze the question of whether the agency can consider a utility offsite emergency plan," 17 NRC at 742, and directed the Board to proceed as outlined in section til of its opin-ion , id_., at 743.
.g.
.-Thus, the PID makes the Commission appear to have been guilty of de-ception or at best negligence. it is not credible that, if the Commission had meant'its regulations to prevent a utility plan without state and local consent it would have (1) afforded LILCO the " opportunity" to go through months of hearings, (2) refused to reach the preemption issue when it was* presented in 1983, or (3) continued to hold out hope that the emergency planning problems
.at Shoreham could be resolved.
The Commission's decision on the motion to terminate says that the Commission must consider a utility plan; the PID says that the outcome of-that consideration must always be rejection of the plan. Either the Commission or the PID must be wrong, and it must be the PID.
C. The Decision, If Allowed to Stand, Will Be Far-Reaching The PID holdings on the legality of " utility. plans," particularly the de-cision on " legal authority," affects all nuclear plants. The state laws cited in Contentions 1-10 are of a type found in all states. More important, the com-mon law.of all states confers on the states and their localities traditional "po-lice powers." Thus, even without reference to specific statutory provisions, any nuclear power plant can be denied a license or compelled to shut down if its state and local governments refuse to cooperate. Indeed, a utility plan would be insufficient even if the state merely remained silent; under the state court decision an applicant asserting authority to implement a plan would be invading the state police powers regardless of whether the state was in active opposition, in short, if the PID is correct, any nuclear plant anywhere can be shut down, for any . reason, at the will of the state and local governments.
c.-
This'would be a radical change in the law and cannot have been the intent of Congress or the Commission.
II. THE PID " LEGAL AUTHORITY" DECISION IS WRONG ON FOUR INDEPENDENT GROUNDS The PlD holds that the New York State law prohibition of LILCO's emergenc'y plan means that the Plan i.innot meet NRC regulations. PID'at 386-426. That decision, LILCO submits, is reversible error, for four rea-sons: First, the state laws prohibiting a utility-only plan are preempted by the Atomic Energy Act. Second, the lack of " legal authority" is a purely hy-pothetical problem. that would not exist in a real emergency. Third, most of the functions declared illegal-by the state court are not required by NRC regulations. Fourth,10 C.F.R. 5-50.47(c)(1), which provides three bases L -on _which a license ma'y be granted notwithstanding deficiencies in emergency planning, -should be interpreted to authorize a license when the only deficien-cy is the state and local governments' opposition to the plant. These four points are discussed in sections A, B, C, and D below respectively.
T 'A. ' The Sta'te Laws are Preempted by the Atomic Energy Act For over 30 years the regulation of radiological health and safety has been .the province of the federal government; the areas where the states are permitted to regulate are the exceptions rather than the rule. Now the PID shas turned this' principle around and found that, where a state's " police power" is involved, the state's regulation of a nuclear plant is presumed not to be preempted by federal law. For the first time, an NRC decision has t
'11-given the states a veto, both in law and in fact, over operating licenses for nuclear power plants.
The decision is in error, first, because the state laws that prohibit LILCO's_ emergenc, p'an are preempted by the Atomic Energy Act. Preemp-L. tion is governed primarily. by the recent cases of Pacific Gas & Elec. Co. v.
_ State Energy Resources Conservation & Development Comm*n, 461 U.S.190 (1983) (hereinafter PGLE), and Silkwood v. Kerr-McGee Corp., 464 U.S.
238,104 S.Ct. 615 (1984) (hereinafter Silkwood). The tests for preemption
.are as follows:
~A. If _ Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted.
'B. If Congress has not entirely. displaced state regula-tion over the matter in question, state law'is still preempted to the extent it "actually conflicts" with federal law, that is:
- 1. When it is impossible to comply with both state and federal law, or
- 2. When the state law " stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."
Silkwood,104 S.Ct. at 621 (1984); PGLE, 461 U.S. at 204.
Under any~ of the three tests the state and local laws at issue here are
~
preempted, as we shall show. We will first go through the history of the Atomic Energy Act and related statutes to show that Congress has consis-tently, through the years, preserved for the federal government the regula-tion of radiological health and safety. We will demonstrate that emergency planning is squarely within this preempted field. We will then show that au-thority to regulate emergency planning has by no stretch of-the imagination been ceded to the states.
-12 .
- 1. Congress 'Has Consistently - Preserved Federal Authority Over Radiological Health and Safety The history of atomic energy legislation shows that Congress has con-sistently maintained federal control over the operation of nuclear plants.
When Congress intends to allow states to infringe on the field of radiolog'ical
-health _ and safety,-it does so explicitly, just as the Brenner Board said in this very case:
Where Congress has intended to permit state regulation of matters of radiological health and safe-ty,-it has stated this intention in clear and unambig-uous terms. This was the case when Congress amended the Atomic Energy Act of 1954 by adding Section 274, 42 U.S.C. S 2021. This was demon-strated again -in Congress' recent enactment of the Nuclear ~ Waste Policy Act of 1982, 42 U.S.C. S 10101, et seq. Sections 101 and 116 of that Act, 42 U.S.C.
SS 10101 and 10136, specifically describe the partici-pation of states in waste repository siting decisions, including a state's authority to submit a *.' notice-of disapproval" of a designated site within its borders.
Shoreham,_ supra,17 NRC at 642, aff*d on other grounds,17 NRC 741 (1983).4/
This pattern of. federal control over atomic energy goes back to the Atomic. Energy Act of 1946,5/ under which the use, control, and ownership of 4/ The Intervenors have argued recently that the federal district court's decision in' Memorandum and Order, Citizens for an Orderly Energy Policy, Inc. v. Suffolk County, Civ. 83-4966 ( E. D. N . Y. Ma r. _ 18, 1985), rejected the Brenner Board's preemption analysis. Suffolk County and State of New York Response to LILCO Motion for Referral to the Commission or, Alternatively, Severance and Expedited Review of Legal Authority issues, May 15, 1985, at 13-14. This is incorrect. The district court ruled that preemption does not require Suffolk County to do an emergency plan of its own. The Brenner Board agreed that it lacked authority to require the County to plan. But the
. Board also held-that the County's refusal to plan could not be used to bar the
~
NRC proceeding.
5/ Act of Aug. 1, 1946, 60 Stat. 755.
- nuclear technology were a federal monopoly. PGr,E, 461 U.S. at 206 (1983) .
When a role for the private sector was first conferred, in the Atomic Energy
'Act of 1954',6/ the Atomic Energy. Commission was given exclusive jurisdiction to license the transfer, delivery,. receipt, acquisition, possession, and use of nuclea r- materials.7/ Upon these subjects, "no role was left for the states."
- 461 U.S ~. - at 207. The states vere left, however, with their traditional au-
'thority over the generation of electricity itself and the economic questions of whether a particular plant should be built.8/ 461 U . S . at 208.
.The amendments to the Act in 1959 preserved federal regulation of nu-4 clea r- plants. The amendments allowed states, by agreement with the federal government, to exercise regulatory authority over small amounts of nuclear materials. Atomic Energy Act S 274(b), 42 U.S.C. S 2021(b). As to these materials- S 274(b) expressly provided that the states could regulate "for the protection of the public health and safety from radiation hazards." But the-
- federal government's authority over nuclear power plants was retained:
1
[T]he Commission shall retain authority and respon-sibility with respect to regulation of --
(1) the construction' and operation of any produc-tion or utilization facility; ...
S 274(c), 42 U.S.C. 2021(c) . Likewise, the State's traditional authority to regulate the nonradiological aspects of power plants was -reaffirmed:
i 6/ Act of Aug. 30,1954, 68 Stat. - 919, as amended, 42 U.S.C.
SS 2011-2281 (1976 ed. and Supp. V).
7/ 42 U.S.C. SS 2014(e), (z), (aa), 2061-2064, 2071-2078, 2091-99,
- 2111-14.(1976 ed. and Supp. V).
i -8/ . Atomic Energy Act S -271, 42 U.S.C. S 2018.
l d
Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.
S 274(k), 42 U.S.C. S 2021(k).9/
The Senate report on the 1959 amendments made it clear that there was to be no overlap by the states into the area of radiological health and safety, except by agreement. The comments by the Joint Committee on Atomic Ener-gy said that "[t]he intent is to have the material regulated and licensed ei-ther by the Commission, or by the State and local governments, but not by both." S. Rep. No. 870, 86th Cong. ,1st Sess. 4, 8 (1959), reprinted in 1959 U.S. Code Cong. & Ad. News 2879. In short, as the Supreme Court put it, "the federal government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states." PGLE, 461 U . S . at 212.
The few cases where Congress has expressly ceded powers to the state are unequivocal (and, as we shall see, quite unlike Congress's treatment of emergency planning). As an example, the Gourt in PGLE mentioned the Clean l
Air Act Amendments of 1977. 4G1 U . S. at 212-13 n.25. Under S 116 of the Clean Air Act,' any state may adopt standards or emission limitations more stringent than federal standards, and S 122 of the 1977 Clean Air Act Amend-ments brought the regulation of radioactive air pollution into this scheme by transferring from the NRC to EPA and the states the authority to set stan-dards and limitations for radioactive pollutants. 42 U . S . C . A . S 7422 (West 9/ In 1965 the Act was again amended, adding a limited provision designed to overrule a Court of Appeals opinion. PG LE, 461 U.S. at 210-11.
3-
,15- -
~
~
zSuppf 1978). : As' the Conference R'eport that ' accompanied the bill says, "the -
provision would not pre-empt States and localities from . setting and. enforcing ;
stricter air pollution standa'rds for radiation than.the federal standards, and
~
would not- follow- th~e; holding of Northern States Power Co. v. State of i Min'nesota -[ citation omitted] in the context of. radioa'ctive air pollution." Joint
. Explanatory Statement of the' Committee 'on Conference, H. Rep. -No.95-564, 195th Cong. , lst. Se'ss. 143.(1977), reprinted in 1977 U.S. Code Cong. & Ad.
~
News 11502,' 1523-24.
Similarly, as the Brenner Board -observed (ab'ove), the Nuclear Waste-Policy: Act'_of .1982. provides explicitly, in 42 U.S.C. A. S 10121 (1983), that
?once the federal l government proposes to locate a waste repository, the state
~
involved 'is~ entitled to the rights of " participation and consultation" that are explicitly-' spelled out in -42 U.S.C. A. S ' 10135-38 (1983)~. Lil'<ewise, the Haz-
'ardous Materials Jransportation Act, 49 U.S.C. A. S -1801-12 (1976), which applies' to radioactive materials, .provides expressly for the preserving of-state laws -under certain circumstances'
. 49 U.S.C. A. S 1811(a), (b) (1976).
- Finally,; the second example given in PGLE 'of powers " expressly ceded" to' the
~~
' states is the." siting and land-use requirements for nuclear plants" in the NRC Authorization Act for Fiscal Year 1980. ' 61 U . S . - at 213 n . 25.
4 Under i-5:108. oflthe - Act,:the NRC was directed to use the funds authorized to devel-i op and promulgate regulations establishing " demographic requirements for the siting of utilization facilities"; subsection (f) expressly provided for contin--
s- ..
ued ' state authority. Pub. Law 96-295 9 108(f), 94 Stat. 783 (June 30,1980).
f' -Moreover, as a general matter, Congress has always been careful to avoidlgiving the states implicit "vetos" over nuclear plants.
~
For example, in r
L/. -- .,
the 1982-83 NRC Authorization - Act a provision was included to require con-sultation with the state in determining whether a license amendment involved "no significant hazards consideration" and thus could be made immediately ef-fective. . Pub.L.97-415 S 12(a)(2)( A), 96 Stat. 2073, 42 U.S.C.
S 2239(a)(2)(A). During debate Congressman Moorhead sought, and received from Congressman Udall, assurance-that this would not constitute a state
" veto . " 127'Cong. Rec. - H8155-56 (daily ed. Nov. 5,1981) . This assurance was reflected in the Conference Report as well. -H. Rep. No.97-884, 97th Cong., 2d Sess. 39 (Sept. 28,1982).
in'sh' ort, when Congress has allowed the states to regulate radiological health and safety, it has done so expressly and precisely. It has not done so, as we shall see, with emergency planning.
- 2. Regulation of Emergency Planning is Squarely Within the Preempted Field of Radiological Health and Safety A state or local law that prohibits radiological emergency planning for a plant is squarely within the preempted field. This is self-evident: emergen-cy plans for nuclear plants have nothing to do with economics, aesthetics, or anything else except radiological health and safety.
The NRC clearly regards emergency planning as a part of health and safety regulation. For one thing, federal occupation of the field is shown by
- the comprehensive federal regulations and guidelines that cover every aspect of emergency planning.M/ if that were not enough, the NRC has repeatedly M/ - One factor that implies a preempted field is the pervasiveness of federal regulation, Pennsylvania v. Nelson, 350 U.S. 497, 502-04 (1956), though this may not by itself be dispositive.
L_- _ _ _ _ _ _ _ - . - - - - - - - - - - - - - - - - - - - - - - - - 1
emphasized emergency planning as one layer in the Commission's " defense in depth." The Commission made this clear in the preamble to the emergency planning regulations:
[T]he. Commission has . . . concluded that adequate emergency preparedness is an essential aspect in the protection of the public health and safety.
45 Fed. Reg. 55,404 col.1 ( Aug.19,1980) . . After Three Mile Island the
~
NRC came to believe "that emergency planning should now be viewed as an equivalent to siting and design rather than as a seccndary but additional meacure to be exercised in the event of an emergency."H/ Proceedings of Workshops on Proposed Rulemaking on Emergency Planning for Nuclear Power Plants, NUREG/CP-0011 at 5 (January 1980); 44 Fed. Reg. ' 75,169 col. 2 (Dec. '19, 1979) . This idea was reinforced in the Staff's summary of public comments on the proposed emergency planning rule:
The Commission's final rules are based on the significance of adequate emergency planning and preparedness to ensure adequate protection of the public health and safety, it is clear, based on the various official reports described in the proposed rules (44 FR at 75169) and the public record com- '
piled in this rulemaking, that onsite and offsite emergency preparedness as well as proper siting and engineered design features are needed to protect the health and safety of the public. As the Commission reacted to the accident at Three Mile Island, it became clear-that the protection provided by siting and engineered design features must be bolstered by the ability to take protective measures during the course of an accident.
Summary of Public Comments and NRC Staff Analysis Relating to Rulemaking on Emergency Planning for Nuclear Power Plants, NUREG-0684, at 2-7 (Sept.
H/ . Here " siting," of course, refers to NRC siting regulations, which are radiological health and safety measures.
- - g . - , -
y y
T
'1980). More recently, the Appeal Board has said that emergency planning is an " integral part" of the NRC's regulation of nuclear plants:
. It should hardly need be stated that the Commis-sion's emergency response requirements are an inte-gral part.of the Agency's regulation of nuclear power plants, and . compliance ,with those rules determines whether an applicant receives an operating license, not-obedience to additional requirements that may have been adopted by state or local authorities.
Even though offsite emergency planning depends upon state and local resources, the applicant cannot be denied an operating license, if, as in this case, planning within .the NRC-prescribed EPZs. complies with the Commission's emergency response require-
' ments .
' Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and c 2), ALAB-781, 20 NRC 819, .831-32 (1984) .
- 3. The PID Misapplies the " State Purpose" Test' Since the state laws in question, as applied in Cuomo v. LILCO, regu-late in the federally occupied field, the state's purpose in regulating makes
~
no difference.to the preemption analysis. A state's purpose may be relevant,
.as it was in PGLE, in determining whether the state is regulating inside or outside the field -- that is, in defining the field's boundaries.12/ But if the state is inside the field -- that is, if it is attempting to regulate how to con-struct or operate a nuclear powe. plant -- then state purpose is irrelevant, as PGLE itself makes clear:
At the outset, we emphasize that the statute does not seek to regulate the construction or operation of a nuclear powerplant. It would clearly be impermissible for California to attempt to do so, for
- 1_2/ The state's purpose may be relevant only in cases of " occupying the field" preemption. In cases of " actual conflict," on the other hand, the state's purpose is not relevant. PGLE, 461 U.S. at 216-17 n.28; Perez v.
Campbell, 402 U.S. 637, 651-52 (1971).
L l
L
such regulation, even if enacted out of nonsafety concerns, would nevertheless directly conflict with the NRC's exclusive authority over plant construc-tion and operation.
PGLE, 461 U.S. at 212 (emphasis added). The State's nonradiological pur-pose ' entered the analysis in.PGLE only because it was the only way to tell whether the state was regulating need for power and economics (outside the preempted field) or radiological heelth and safety (inside it). See also Alessi
- v. Raybestos-Manhattan, Inc. , 451 U.S. 504, 524 (1981) (New Jersey statute ostensibly unrelated to pension plans was preempted because it eliminated one method for calculating pension benefits permitted by federal law).
- 4. The State and County Purpose is Unequivocally Radiological Health and Safety
- Even if the State's purpose were relevant, there would still be preemp-tion in this case, because the State *s' purpose and the federal purpose are the same: to protect .the publi. health and safety.
The PID finding that the New York ' statutes at issue in this case "were passed long before LILCO began emergency planning for Shoreham and for
-' purposes totally- unrelated to nuclear power or emergency planning " ~ PID at 401, while largely correct, is not dispositive. Any analysis that finds the State's " purpose" in this case to be anything other than radiological health and safety is completely at odds with the facts.
In the first place, to discern " purpose" the Board should have looked, not just at the narrow legislative purpose behind the state statutes, but rath-er at the range of activities the State has undertaken to prevent Shoreham from cperating. The State and County have not only prohibited private emergency plans; they have, for Shoreham, prohibited governmental plans as L T
p-,
s well. First, Suffolk County prohibited County plans by ordinance; its pur-pose was radiological health and safety. See Shoreham, supra, LBP-83-22,17 NRC 608, 636-37, 641, aff'd on other grounds, CLl-83-13,17 NRC 741, 743 i'
- (1983). The County ordinances on the subject, attached to this brief, make this clear.
Next New York State refused to prepare a Shoreham-specific annex to the State plan, and there is no question that the State was acting because of radiological health and safety; indeed, no one denies it. Finally, the State and County have opposed the LILCO Plan in several forums, including the
_N R C . They have never claimed that their purpose was anything other than radiological health and safety. The State has said that it opposes the LILCO Transition Plan (1) because "LILCO lacks the legal authority to impleme'nt the plan for the reasons outlined in Contentions 1 through 10" and (2) because the plan is "not adequate and not implementable" and therefore "cannot as-sure reasonable protection of the public." Tr. 2,240 (counsel for New York State). Likewise the health-and-safety purpose was stated in the State's complaint in Cuomo v. LILCO:
The Plaintiff, Governor of the State of New York, after appointing a Commission which studied the Shoreham nuclear power plant situation for ap-proximately nine months, determined that the State would 'not submit a RERP for Shoreham to the NRC on behalf of the State of New York; the State of New York would not' participate in implementing the RERP submitted to the NRC by LILCO: and, further, the State of New York would oppose the approval of the RERP submitted by LILCO to the NRC in every pos-sible legal forum because that RERP could not ade-quately protect the health, welfare and safety of the residents of Suffolk County and transients in the event of a nuclear accident at Shoreham and is not implementable.
n Complaint for Declaratory Judgment, filed Mar. 8,1984, in Cuomo v. LILCO.
The same theme was sounded in a letter to the Chairman of the Atomic Safety and Licensing' Board panel from the Governor:
The ' safety of our residents has been and con-tinues'_to be my principal concern in the evaluation of nuclear power plant operations in New York.
Letter from-Governor Mario M. Cuomo to Judge B. Paul Cotter, July 11, 1983, at 1.
Looking at only the statutes that are now interpreted to prevent a pri-vate emergency plan is incorrect; the courts must take account of the appli-cation of the laws as well. For example, in 1976 the City of New York .
amended its Health Code to require nuclear reactors in the City not to com-mence operation without a certificate from the City health commissioner.
United States v. City of New York, 463 F. Supp. 604, 606 (S.D.N.Y.1978).
The federal government and Columbia University, which had a reactor in the city, sued to have the ordinances declared void under the doctrine of pre-emption. _ The court said this:
The defendants' final argument is that even if Congress has preempted the regulation of nuclear reactors from the standpoint of radiological health and safety, the City ordinance in question falls out-side the scope of this preemption because it regu-lates nonradiation hazards and the Atomic Energy Act expressly _ permits this type of local regulation.
The Court need not tarry very long with ~ this partic-ular argument. Not only is it inconsistent with the purpose of the ordinance as intended at the time of its enactment, as set forth above, but it is contrary to the application of the ordinance as exemplified by the City's decision rejecting Columbia's application for a certificate of Health and Safety for Nuclear Reactor Operation. The record before the Court un-equivocally indicates that the City's decision was based entirely upon the alleged possibility of injury resulting from an accidental release of radiation. In short, this argument is without merit.
463 F. Supp. at 614 (emphasis added).
In the second place, even if we look only at the historic purpose behind the New York statutes, they are still preempted. The State asserts its "po-lice power" as the basis for prohibiting utility plans, and the police power is the power to protect the health, safety, and welfare. With respect to ra-diological emergency planning there is no kind of health and safety except ra-diological. One can hardly claim that the purpose of these state laws, as ap-plied in this case, is to protect against infectious diseases, or fraud, or immorality, or environmental harm, or anything else except radiological health and safety.
The PID acknowledges the Supreme Court's holding that the " federal government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states" but relies instead on the rule that the party seeking to show preemption carries the burden of de-monstrating that it was the " clear and manifest purpose" of Congress to pre-empt state law. PID at 397-98. There is no inconsistency between the two principles. Congress has already made clear and manifest its purpose to pre-empt the field of radiological health and safety, it is not necessary that Con-gress expressly preempt radiological emergency planning, any more than it must expressly preempt the regulation of emergency core cooling systems, nuclear plant quality assurance, or any of the other specific things the NRC regulates; it is enough that these subjects, like emergency planning, are squarely within the field of radiological health and safety.
What the State and County have done in this case is simply to prohibit an essential safety system for Shoreham. If the State were to pass a law
forbidding emergency core cooling systems, the law would clearly be pre-empted, even if the state's purpose were to save the ratepayers money (ECCS's, after all, cost money). This is precisely what New York has done to emergency planning for.Shoreham.
- 5. Congress Has Evidenced Specific Intent Not to Allow States to Use Emergency Planning to Shut Down Nuclear Plants Since the State is regulating in the field of radiological health and safe-ty, the state law is preempted, regardless of the State's motive, unless emer-gency planning has been " expressly ceded" to the states. Or there must be shown a Congressional intent, as clear as that for tort law in Silkwood, not to preempt. In that case the Supreme Court found " ample evidence that Con-gress had no intention of forbidding the states from providing [ tort law) rem-edies . " Silkwood,104 S.Ct. at 623.
I By contrast, there is absolutely no indication that Congress intended to allow the states to regulate radiological emergency planning by private par-ties, let alone prevent nuclear plants by forbidding emergency planning. In fact, the opposite is true. Consistent with its approach to the Atomic Energy Act generally, Congress evidenced its intent not to let states regulate nuclear plants through the mechanism of emergency planning. This specific intent can be seen in the last three NRC authorization acts.
Of course, the NRC's basic statutory authority over emergency plan-ning comes from the Atomic Energy Act itself, not the authorization acts.
The emergency planning regulation,10 C.F.R. S 50.47, cites the Atomic En-ergy Act as its authority, and it was proposed well before the 1980 Authori-zation Act became law. The Authorization Act merely gave detailed
l
. ' instructions to'the NRC to exercise its existing authority. But the authoriza-tion acts are useful indications of Congress's intent with respect to emergen-cy planning'.
- a. 'The 1980 NRC Authorization Act in contra'st to its treatment of land use regulation in the 1980 NRC Au-thorization Act (see above) was Congress's treatment of emergency planning.
After the accident at Three Mile Island revealed the poor state of offsite plan-ning, Congress directed the NRC to establish "stanc'ards for State ra-diological emergency response plans . . . [ developed in consultation with FEMA and other appropriate agencies] . . . which provide for the response to a radiological emergency- involving any utilization facility. . . ."
S 109(b)(1)(a) of the Act, Pub.L. No.96-295, S 109(b)(1)( A), 96th Cong. ,
2d Sess. , 94 Stat.~ 780-84 (June 30,1980) . These standards were adopted in 10 C.F.R. S 50.47 and NUREG-0654. NUREG-0654, of course, is replete with
. criteria .that apply to state and local governmental plans.
Also, Congress explicitly addressed what to do about states and lo-calities that might fail to do emergency planning. The Senate considered a bill (the Hart-Simpson bill) that would have (1) required the shutdown of operating nuclear plants, within six months of the enactment of the bill, in states that had deficiencies in their emergency plans and (2) prohibited new operating licenses in stat 2s whose plans did not adequately protect the public health and safety. S.562, S 202(a) and (b),124 Cong. Rec. S.9464 (daily ed. July 16, 1979). As the report on S.562 said, the bill would have made operating licenses " contingent upon" an NRC-approved state emergency plan.
S. Rep. No.96-176, 96th Cong.,1st S sss. 3 (May 15,1979). Thus, under I
I
~
the Senate bill state governments would have been effectively given a veto over the licensing of new plants.and the operation of existing plants.
Senator-Johnston recognized that a state governor might try to prevent nuclear plants by failing to make a good-faith effort to submit an emergency plan. 124 Cong. Rec. S9471-72 -(daily ed. ~ July 16, 1979). He proposed an amendment to the Senate bill to eliminate this state veto. The amendment would have authorized the NRC to prepare an interim emergency plan for a
. state rather than shut down a nuclear plant when deficiencies in state plans were found. Id. S9471.
The Johnston amendment was rejected by a close vote, & at S9478, and the Senate passed the Hart-Simpson version of the bill, i at S9603 (daily ed.- July 17, 1979). As passed by the Senate, the bill would have ex-pressly permitted states to prevent the continued operation of existing nucle-ar plants, and the operation of new ones, by failing to perform emergency planning at all or by failing to perform it adequately.
The Senate-House Conference Committee rejected the Senate language.
4 But they did not return to the Johnston approach either. Instead, they ap-proached the problem of the recalcitrant state by confirming that " utility" emergency plans could be relied on for licensing purposes in the absence of local and state government plans. Pub. L.96-295, S 109, 96th Cong. , 2d Sess. , 94 Stat. 783-84 (June 30,1980). The House Conference Report, com-menting on the bill that was reported out of the Conference Committee and then adopted by both houses of Congress, explained Congress' intent as fol-
' lows:
i
The conferees sought to avoid penalizing an applicant for- an operating licens'e if a State or locali-ty does not submit.an emergency response plan to the NRC for review or if the submitted plan does not satisfy all the guidelines or rules.
H. R. Rep. No. 96-1070, 96th Cong., 2d Sess. 27 (1980), reprinted in 1980 U.S. Code Cong. & Ad. News 2260, 2270.
- b. The NRC's New Emergency Planning Rule At about the same time that Congress was considering the 1980 authori-zation bills, the NRC considered, and rejected, a rule that would have re-quired immediate shutdown of a reactor if a local emergency plan had not re-ceived "NRC concurrence":
Rather than providing for the shutdown of the reac-tor as the only enforcement action and prescribing specific preconditions for the shutdown remedy, the final rule makes clear that for emergency planning rules, like all other rules, reactor shutdown as out-lined in the rule is but one of a number of possible enforcement actions and many factors should be con-sidered in determining whether it is an appropriate action in a given case. The Commission choice is consistent with most of the comments received from State and local governments and is consistent with the provisions of Section 109 of the NRC fiscal year 1980 Authorization Act. Alternative B [ automatic ,
shutdown] was seen by some of the commentors as potentially causing unnecessarily harsh economic and social consequences to State and local governments, utilities, and the public.
45 Fed. Reg. 55,406-07 ( Aug. 19, 1980) . In short, the NRC, like Congress, rejected the notion that states and localities had the absolute power to shut down reactors by failing to plan for emergencies. As the history of the regu-lation, and the Brenner Board's decision on the motion to terminate this pro-ceeding, show, the Commission went to great pains to make sure the regula-tion was consistent with the 1980 authorization bill and that "all factors" l
l l
)
would 'be ' considered before a plant would be shut down. ' 45 Fed. Reg. 55,404 :
(1980).
- c. The 1982-83 Authorization 'Act The " utility plan" provision was . reenacted in the NRC Authorization
- Act for 1982-83:
SEC. 5. Of the amounts authorized to be ap-
- propriated under section 1, the Nuclear Regulatory -
Commission may use such sums as may be necessary, in the absence of a State or local emergency pre-paredness plan ~ which has been approved by the Fed-eral Emergency Management Agency, to issue an operating license (including a temporary operating license under section 192 of the Atomic Energy Act of 1954, as amended by section 11 of this Act) for a' nu-l clear power reactor, if it determines that there ex-ists a State, local, or utility plan which provides reasonable assurance that'public health and safety is not endangered by operation of the facility con-cerned.
Pub. L.97-415, S 5, 97th Cong., 2d Sess. , 96 Stat. 2069 (Jan. 4, 1983).
Representative Lujan included the following remarks while the 1982-83 bill was being considered:
Frankly, these provisions -- allowing a utility to file an onsite plan for a temporary operating li-cense, and allowing the NRC to determine that an adequate offsite plan of a utility exists in the ab-sence of an FEMA-approved State or local plan for a final, full power license -- were included to insure that Federal preemption in the area of nuclear power would not be frustrated in the emergency planning area by foot dragging on the part of a reluctant State or locality. The wisdom of including such Fed-eral provisions is underscored by the situation ~ which we understand exists in one district where a county has sued to try to enjoin its State from approving an emergency plan. The clear language of the statute and our intent throughout the legislative process was to insure that a plant could operate if there existed some plan -- State, local or utility sponsared --
providing reasonable assurance of the public health and safety.
128 Cong. Rec. E5060-61 (daily ed. Dec. 10,1982) (emphasis added). .The
" situation" he referred to was that of Shoreham; Suffolk County had recently sued to enjoin the State of New York from reviewing an emergency plan sub-mitted -by LILCO. Cohalan v. New York State Disaster Preparedness Commission, index No. 5145-82 (N.Y. Sup. Ct., petition filed Dec. 6,1982).
On July 12, 1983, the Department of Housing and Urban Development --
Independent Agencies Appropriations Act,1984, which provides funding to FEMA, was enacted. Pub.L.98-45, 97 Stat. 219. The House Report included the following language:
The committee expects the Federal Emergency Management Agency to review, evaluate, and render determinations on the adequacy of offsite radiological emergency preparedness plans for commercial nuclear facilities required to be licensed under section 103 or 104b of the Atomic Energy Act of 1954, as amended.
This evaluation should be conducted regardless of whether the plans have been prepared or submitted, or both, by a governmental entity or by the appli-cant or licensee for such facility. The fact that a governmental entity cannot or will not perform a par-ticular role or roles in the preparation, submission, or implementation of offsite emergency preparedness plans should not, by itself, constitute a sufficient basis for a determination by FEMA that the plans, or portions thereof, are inadequate -- providing a suit-able alternative means of implementing the plans i,s available.
H.R. No.98-223, 98th Cong.,1st Sess. 30-31 (1983).
- d. The 1984-85 Authorization Act A " utility plan" provision, similar to the ones in the 1980 and 1982-83 NRC authorization acts, was enacted a third time in the NRC Authorization Act for fiscal 1984 and 1985, S 108 Pub.L.98-553, 98 Stat. 2827 (Oct. 30, 1984). At the time, various Congressmen and Senators expressed concern over .the tactic of refusing to cooperate in emergency planning. For example:
I am quite concerned, though, by what I see as increasing efforts to use.the emergency planning process as a vehicle to achieve' certain objectives which -- at least in my mind -- were certainly not intended when we passed _the emergency planning legislation in 1980. I think it clear that Congress did not intend to confer on anyone other than the NRC and FEMA the authority to establish the sub-stantive requirements for an emergency plan, nor the authority to determine whether those require-ments have or have not been met. In fact, in virtu-ally every single area that involves protection of the
.public health and safety from the risks posed by nu-clear power, the Congress, since 1954 when it pas-sed the Atomic Energy Act, has conferred preemp-
~tive authority in this area on the Federal Government, a fact strongly reendorsed by the Su-preme Court in its recent decision in Pacific Gas r, Electric Co. against State Energy Resources Conser-vation and Development Commission (April 20, 1983).
129 Cong. Rec. S8000-01 (daily ed. June 8,1983) (extended remarks of Sen.
Simpson); see also & at E2800 (daily ed. June 9,1983) (extended remarks of Rep. Pashayan); & at E2661 (daily ed. June 2,1983) (extended remarks of Rep. Coughlin); & at E2720 (daily ed. June 6,1983) (extended remarks of Rep. Corcoran).
The report that accompanied the Senate bill, which was passed by Con-gress, repeats that the " utility plan" provision was aimed at the probler' of recalcitrant states:
In the course of the subcommittee's hearings, howev-er, two potentially significant problems have been raised. First, witnesses expressed concern that y under the existing process, state or local govern-ments, by acting or failing to act, could keep FEMA and the NRC from evaluating an emergency pre-paredness plan for a nuclear power plant that was prepared or submitted, or both, by the applicant or licensee, and, as a result, prevent the NRC from issuing an operating license to such applicant or li-i[ censee if the NRC determines that the plans sub-mitted by the applicant or licensee provides reason-able assurance that the public health and safety is not endangered by the operation of the plant.
L Under Section 108 of this bill, the Committee expects the NRC and FEMA to undertake a review of all emergency preparedness plans submitted for evalua-tion, regardless of whether the plans have been pre-pared or submitted, or both, by a governmental en-tity or by the applicant or licensee for such facility.
S. Rep. No.98-546, 98th Cong. , 2d Sess.14-15 (June 29,1984).
" Additional views" were included in the report by Senator Simpson, who noted that Congress had repeatedly reenacted the provision in order to avoid penalizing nuclear plant operation if a state or local government failed to perform adequate emergency planning:
With the adoption of section 108, this Commit-tee has now made it clear in three successive NRC authorization bills that it is not our intention to allow a state or locality to prevent a completed facility from operating by refusing to prepare an emergency preparedness plan.
[T]he NRC Authorization Act for fiscal year 1980 provided for a substantial expansion of the fed-eral government's emergency response authorities.
Section 109 of the Act, for example, established a pervasive and preemptive federal role for the review and approval of off-site emergency response plans for commercial nuclear. powerplants.
S. Rep.98-546, 98th Cong., 2d Sess 22-26 (June 29,1984) (Supplemental Views of Senator Simpson) (emphasis in original).
Du'ing the debate on the bill, Congressman Pashayan stated the desire not to allow states and localities to shut down nuclear plants as a " central principle" of federal law:
I think that both concepts -- that of utility submis-sion, and that of Federal implementation, of emer-gency plans -- are important, and I am happy to see them further reinforced by this bill.
I Both are important because they add up to one central principle: The Congress does not intend to allow states or localities, by refusing of participate in the emergency planning process, to prevent a completed facility from operating. A refusal to par-ticipate could take the form either of a refusal to s'ubmit or a refusal to implement a plan. With regard to a refusal to submit a plan, the bill provides ex-plicitly for.-a remedy: a utility plan will suffice.
With regard to a refusal to implement, the bill is not i explicit, but the intent of Congress is clear: We cannot allow a refusal to implement to be used to prevent the operation of a facility, for to do so would make a mockery of the provision. It would allow States and localities to achieve through a re-fusal to implement a plan what we have expressly forbidden them to do by refusing to submit one.
130 Cong. Rec. H12196 (daily ed. October 11,1984) (emphasis added).
In short, Congress has made it clear in three authorization acts that the NRC is to regulate emergency planning. Moreover, the " utility plan" provisions were aimed specifically at the problem of states and localities that would not plan. As the federal district judge in COEP v. Suffolk County said:
The Senate debate on this point indicates that the Senate was aware that a local government could refuse to participate in emergency planning. The Senate did not, however, adopt an amendment to re-quire local government participation.
Rather than require participation, Congress provided that the utility could provide a plan.
Memorandum and Order, Citizens for an Orderly Energy Policy, Inc. v.
Suffolk County, CV-83-4966 (E.D.N.Y. Mar. 18, 1985), slip op at 30-31 (emphasis added). It is simply not credible that Congress would have gone to the trouble to authorize utility plans for this express purpose and not bother to mention that utility plans could not be used if the state and local
government objected. The only rational conclusion is that Congress intended federal law to preempt.
- 6. The Case- Against Preemption is insubstan-tial at Best Upon examination, the arguments that Congress did not intend to pre-empt state regulation of emergency planning are insubstantial. The first of these arguments is that obviously state and local governments do emergency planning everywhere except at Shoreham, and clearly Congress and the NRC want them to. Hence the states and localities have been allowed "into the field . "
But there is a difference between doing emergency planning and regu-lating it. Congress clearly wanted states to d_o emergency planning; just as clearly it meant the federal government to regulate it. State and local plans were to be submitted to FEMA and the NRC to be judged according to federal standards; no room was left for the states to regulate. States and localities may, of course, implement planning by means of rules, ordinances, or stat-utes governing their own plans and activities because that is how govern-ments operate. But in the case of Shoreham the State has refused to do any planning; it is now engaged in forbidding private parties to implement a plan, and that is regulation, pure and simple.
The second argument against preemption is that Congress specifically declined to require the states to do plans or to order the NRC to draft plans for them. But again there is an important distinction to be made. it is one thing to allow states not to plan if they wish; it is quite another to allow them to regulate private emergency planning. The Senators who opposed the Johnston amendment in debate did so because of Tenth Amendment concerns:
/
L
the fear that it was unconstitutional for the federal government to be di-recting the states what resources to commit and how to marshal them. See 124 Cong. Rec. S9476-78 (daily ed. July 16, 1979). These concerns simply do not arise when the federal government allows the states to opt out of plan-ning but permits utilities to do the job instead. In this case, it.must be re-membered, the County and State have declined to do emergency planning.
There -is no concern here, as there was in the Congressional debate, over the state being forced to implement.a plan beyond its resources. The state's only interest in prohibiting a utility plan is to prevent the operation of the nuclear plant, and its only interest in doing that is in implementing its own decision about radiological health and safety -- an interest that is preempted by the Atomic Energy Act.
The third argument against preemption is that the NRC, when it pro-mulgated the emergency planning regulation, was aware that state and local governmental failures to plan could result in plant shutdowns. The most per-tinent language is the following, from the preamble to the emergency planning regulations:
The Commission recognizes there is a possibility that the operation of some reactors may be affected by this rule through inaction of State and local govern-ments 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 prohib-it reactor operation, such as zoning and land-use laws, certification of public convenience and necessi-ty, State financial and rate considerations (10 CFR 50.33(f)), and Federal environmental laws. The Commission notes, however, that such considerations generally relate to a one-time decision on siting, whereas this rule requires a periodic renewal of State and local commitments to emergency prearedness. Relative to applying this rule in actual l
l l
practice, however, the Commission need not shut down' a facility until all factors have been thoroughly
, examined. - The Commission believes, based on the 1
record created by th'e public workshops, that State i and local officials as partners in this undertaking
.will endeavor to provide, fully for public protection.
' 45 Fed. Reg. 55,404 col.1 (Aug, ' 19,1980) . But in the context of the com-
~
ments that were' received and the discussions that went on while the NRC was deliberating over the then-proposed 10 C.F.R. S 50.47, this passage can be
- taken only as an acknowledgement that states' failures to plan could de facto interfere with plant operation, just as the failure of a state to give adequate
- rate relief-might de facto inhibit a utility's ability to finance a nuclear plant.
The Brenner Board agreed with this analysis in its deci~sion on the motion to terminate:
As noted by the County (citation omitted), the NRC Staff stated in SECY-80-275 (citation omitted]
that both the Staff and the Commission were aware that the proposed rule potentially gave a " third party defacto (sic) veto power" to state and local government authorities.. However, as noted by LILCO .(citation omitted), a "de facto veto power" means only that in the absence of a state or local government plan, a utility might not be able to dem-onstrate factually the existence of sufficient emer-gency response capability to entitle it to the issuance of an operating license; no "de jure veto power" was given to State or local governments by the proposed rule, making issuance of an operating license impos-sible as a matter of law in the absence of a state or '
local government sponsored plan. . . .
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
, LBP-83-22,17 NRC 608, 623-24 (1983). This analysis was in the portion of i the Board's decision that was affirmed by the Commission, CLl-83-13,17 NRC 4
741 (1983).
L i
4 h
I
a l
l l
The fourth argument _ against preemption is even less substantial than the other three. It attempts to exploit two sentences in 'the report on the
~1984-85 authorization bill from the' House Committ'ee on Interior and Insular Affairs:
.The [ utility plan] provision, however, in no way implies that it is the intent.of the Committee that the NRC cite the existence of a utility plan as the' basis for licensing a plant when State, county, or. local governments believe that emergency planning issues are unresolved. ~ Moreover, section 6-does not autho-rize the Commission to license a plant when lack of participation in emergency planning by State, coun-
.ty,' or local governments means it is unlikely that a utility plan could be successfully carried out.
. H.R. Rep.98-103, Part 1, 98th Cong., ist Sess. 9 (May 11,1983). All the two sentences suggest is that the existence of a mere " paper plan," as disto.
guished 'frem an actual showing that it will protect the public, was not in-tended to be 'an adequate basis for licensing a plant.13/ At the time there was a debate over a provision to authorize " temporary operating licenses," a debate that had begun with the 1982-83 Act. Section 11 of that act had said that the initial petition for a temporary operating license might be filed at any 4
. time after the " filing" of certain documents, including "a State, local, or util-ity emergency preparedness plan for the facility." Some legislators felt that under this provision the mere " filing" of a utility plan, without its having
(
been reviewed substantively by the NRC, would justify the grant of a 13/ Also, this language was not accepted by the full House, instead, on Dctober 11, 1984, the House took the Senate bill (S.1291) and adopted it. In '
so doing, the House adopted different language about emergency planning from the report by the Committee on Energy and Commerce on H.R.2510, not the report language from the Interior Committee, 130 Cong. Rec. H12194 (daily ed. October 11, 1984). !
i t
7 x
. temporary operating l license. See 128 Cong. Rec. E5060 (daily ed. Dec.10, .
1982) (Rep : Lujan); & at E5057 -(Rep. . B royhill) .
. Hence the two sentences quoted above were intended to-bolster the view that actual protection, not a mere paper plan, . was required. This interpretation was confirmed in subse-fquent clarifying correspondence. -
130 Cong. Rec. H12195-96 (daily .ed. Oct.
i11~, 1984).
-In-short, there is nothing in the legislative history or the history of the Commission's regulations that shows an intent to allow states to regulate
~
- utility plans. Indeed, the opposite is the case.
'7.
. State Law is Preempted Because it is
_lmpossible to Comply With Both State
. Law and NRC Regulations The second test of preemption is whether there is an " actual conflict" between state and federal law.. -This occurs, for example, if it is " physically
. impossible" to comply with both.
It is indeed impossible to comply with both NRC law and New York State law if Shoreham is to operate: NRC regulations require LILCO to have an offsite emergency plan; New York law, as interpreted by the state court in Cuomo v. LlLCO, forbids LILCO to have an offsite emergency plan. LILCO cannot do both. '
The Licensing Board dismissed this argument, saying that the federal government has not ordered LILCO to operate a nuclear plant, and so LILCO can avoid the conflict by simply not operating. PID at 408. But this reason-ing would also make a nonconflict out of the very example given by the Su-preme Court in the seminal case that is always cited for the " physical impossi-bility" type of preemption, Florida Lime r, Avocado Growers,- Inc. v. Paul, i
l l
i
u _. a- .wp. - -- a -- -r -n.- + .. . s-373' U .S . 132, ' 143. (1963) .14/ A person can almost always avoid' a conflict by abandoning the regulated activity. For example, in Ray v. Atlantic Richfield Company, 435 U.S.151 (1978), a state. law requiring oil tankers enrolled in the coastwise trade to have a local pilot on board was found to be in " direct conflict" with federal regul'ations requiring vessels to have a pilot licensed by the Coast Guard -and prohibiting states from requiring pilots to obtain a state licen'se in addition to a federal one. 435 U.S. at 158-59. Obviously this con-flict could have been avoided by having two pilots on board or by quitting the coastwise trade. Nevertheless, the state law was preempted.
Likewise, in Douglas v. Seacoast Products, Inc. , 431 U.S. 265 (1977),
the Supreme Court invalidated on preemption grounds a Virginia statute for-bidding non-residents and non-citizens from fishing for menhaden in Virginia waters. .The plaintiffs were licensed under federal law to engage in the coastal trades, including fishing. The exclusionary state law was preempted as being in direct conflict with the federal license. The federal license did L
not,- of course, require the plaintiff to fish, it merely permitted fishing. Yet the state law denied the plaintiffs their " federally granted right" to engage in fishing activities, and thus had to " fall under the Supremacy Clause." 431 .
U . S . at 283.
l 14/ In Florida Lime r, Avocado Growers, Inc. v. Paul, 373 U.S.132 (1963),
Uie Court gave a hypothetical example of a case in which compliance with both State and federal regulations would be a " physical impossibility":
That would be the situation here if, for example, the federal orders forbade the picking and marketing of any avocado testing more than 7. oil, while the California test excluded from the State any avocado measuring less than 8*. oil content.
Id. at 143. This, of course, presents an " impossibility" only so long as the avocado growers want to continue marketing their fruit in California.
m; . . - .. _
[#@
, ,4 u
It-is true that the~ Supreme Court found no isnpossibility in PGt,E be-cause the-NRC does not." compel a utility-to develop a nuclear plant." 461
- U.S. at 218-19. But that case involved the " threshold"' decision of whether to-have nuclear plants or not. Once a plant is constructed, the NRC does im-pose requirements about how'it should _ be operated. LiLCO cannot comply
- with those requirements and at the same time with ' State law.
~
- 8. State' Law is Preempted .Because it Stands as -an Obstacle to'the Purposes and Objec-tives of Congress
. An' " actual conflict" for preemption purposes also occurs if the state law -
stands as' an obstacle to the -accomplishment and execution of the full pur-
- poses and objectives of Congress." LILCO identified for the~ Licensing Board several purposes and objectives-of Congress that are frustrated by what the State and County have done in this case, principally the objective of having uniform national standards of emergency planning and the objective of having sound emergency plans so that nuclear plants may operate safely.
There is simply no question that Congress's object in enacting the NRC
= authorization acts was to improve emergency planning so that power plants could operate safely. By contrast, the State and County, 'by banning emer-
- gency planning, seek to ensure that Shoreham cannot meet NRC safety regu-lations at all. In short, the exercise of State and County authority is diamet-rically opposed to the purpose of Congress. Moreover, the purpose of having uniform standards is frustrated, as the Brenner Board recognized.
Shoreham, supra,17 NRC at 642, aff'd on other grounds,17 NRC 741.
The PID appears to concede that these really are the purposes of- Con-gress (see PID at 409) and that they really are being frustrated by the Inter-venors . But it resolves the issue by applying a balancing test that weighs a
' different alleged Congressional purpose against the put coses being
~ frustrated. In particular, the PID finds the frustration of these purposes outweighed by.the objective of preserving the existing . federal structure:
We must bear in mind the cost to our federal system of transferring a state's historic police power to a private entity. . .. We cannot believe that so fun-damental a shift in the structure of federal-state re-
-lations could be accomplished by the NRC Authoriza-
- ' tion Act provision which merely allows the NRC to consider the adequacy of a utility-sponsored emer-i gency . pla n . Indeed, Congress would not even enact a provision requiring the states to perform emergen-cy planning or placing responsibility for emergency
~
planning with the federal government.
PlD at 409-10. This analysis is apparently the Board's attempt to apply the Supreme Court's statement that Congress did not intend the promotion of nu-clear power to be accomplished "at all costs." PG r,E, 461 U.S. at 222; Silkwood,104 S.Ct. at 626. But the Board's application is incorrect.
In the first place, the Board appears to be saying that the fact that preemption would require intrusion into an important state area is overriding.
This is a mistake. . The fact that an important area of ~ state regulation is at issue is simply not material. See Silkwood,104 S.Ct. at 638 n.9 (Powell, J.,
dissenting); Fidelity Federal Savings & Loan Ass'n v. de la Cuesta,.458 U.S.
141, 153 (1982).
-In the second place, it is simply not correct that the LILCO Plan con-templates a " fundamental shift" in "the structure of federal-state rela-tions."M/ The LILCO Plan would be used to advise the public only in the L M/ ~ We must accept that the state court ruled that implementing the emer-I gency plan would be illegal, and that its rationale was that the plan invades l the State's police power. But we do not have to accept for federal preemption l analysis the notion that a major restructuring of federal-state relations would be required to implement a utility plan.
5
. =.
. 2..
event of an accident 16/ that everyone must admit is~ extremely rare. LILCO lis E
- not ' planning to give daily health-and-safety: advice or to direct traffic as a routine matter. More important,' the. LILCO Plan expressly subordinates all
' actions of. LERO personnel.to the decisions of the State and local governmental I officials, 'if.they decide 'to act at all:
Should Suffolk . County, .New York State, or l Federal governments choose to! implement actions consistent with their respective legal authorities to protect the health and. safety of the public, those ac-tions will take precedence over LERO actions. The Director of Local Response will assure that LERO ac-tions continue as needed to support governmental re- I sponse activities' .
Plan at 1.4-1 (Rev. 3); see also Plan at 1.4-2 (Rev. 3) (at 1.4-2a in Rev.
)4).17/ Likewise the LILCO traffic guides are instructed to turn over their posts to the . police, if the police show up. OPIP 3.6.3, p.11.of 46; ; Babb et ;
. al (Training), ff. Tr.11,140, at Vol. 5, Att. 20, Module 12. The LILCO Transition. Plan exists, in. fact, only because of the vacuum created by State
~and County refusal to plan. The control of an emergency is completely within JJ ;the State and local governmental officials'. hands under the LILCO. Transition
. Plan, even as it'would be under a governmental plan.
Do the police want to .
direct traffic? Under the LILCO Plan they have the absolute power to do so;
.'Does the County Executive wish to make protective action recommendations?
'16/. .Except .for posting signs marking the evacu'ation routes (Contention 3),
which would'be;done in advance of an emergency.
? 17/-'. See also Cordaro and Weismantle, ff. Tr.13,899, at 8-9; LILCO's Mo-
. tion for' Summary Disposition of Contentions 1-10 (the " Legal Authority" .ls-
, sues)', .at 45 (Aug. 6,1984); LILCO's Proposed Findings of Fact and Conclu-sions of Law on Offsite Emergency Planning, at 3141681 (Oct. 5,1984); Tr.
10,527-28, 10,682-83 (Weismantle) .
He is invited to by the LILCO Plan. Indeed, the local and state governments are just'as much under control under the LILCO Plan, as a legal matter, as
- they would be without it. And of . course the State and County always have -
the option of preparing their own emergency plans.
Nor.is. any wholesale abrogation of state law at issu'e here. State law ,
need be displaced "only to the extent necessary to protect the achievement of the aims of" federal law. Ray v. Atlantic Richfield 'Co. , 435 U.S.151,182-83 '
(1978) -(Marshall, J., concurring in part and dissenting in part). Indeed, a -
particular exercise of ~ state authority can be invalidated while leaving the state ' statute untouched, 'which is exactly what happened in the lower court
. decision reviewed in Silkwood,104 S.Ct. at 620-21. Here, state law need be preempted only (1) to the extent necessary to meet regulations the NRC has determined necessary to protect the public and (2) to the extent the NRC de-
'termines that the utility's plan for meeting these regulations is acceptaole.
In the third place, throughout the legislative . history of the authoriza-
-tion acts, there is not the slightest indication that Congress intended utility plans to be judged according to whether the'y ' complied with state or local law.
Each time Congress enacted the " utility plan" provision, it made the sole test of acceptability whether the plan provides reasonable assurance "that public
' health and- safety is not endangered by operation of the facility concerned."
The " legal authority" contentions do not allege that the LILCO Plan would not protect the.public health and safety -- only that the State will not permit it to do so.
- - The essence of the matter is that Congress had two goals
- first, to a upgrade emergency planning and, second, to avoid shutting down nuclear l
!~
'i
['
[ !
r plants . The intervenors' actions in this case manage to frustrate both these purposes at the same time.
- 9. LILCO Has the Necessary Affirmative Legal Authority A distinction has been raised by the NRC Staff and the Intervenors be-tween the ordinary preemption case, in which federal law strikes down some state restriction, and this case, in which LlLCO claims the right affirmatively to take action under federal law that is denied to private parties under state law. The Intervenors have argued that the Atomic Energy Act is not a source of authority. This is incorrect. Under New York State law LILCO is clearly authorized to build the plant, to apply for an NRC license, and to op-erate the plant if it can meet NRC requirements. A " license," of course, gives authority to do the licensed activity. See Douglas v. Seacoast P roducts , Inc. , 431 U.S. 265, 280, 281 (1977) . And it is well established that a state may not obstruct federal licensing.
In Sperry v. Florida, 373 U.S. 379 (1963), for example, the petitioner was registered to practice before the United States Patent Office but was not admitted to the practice of law in Florida or anywhere else. The Supreme Court accepted the determination under Florida law that what the petitioner was doing in his office in Tampa was " practicing law." Nor did the Court doubt that Florida had a substantial interest in regulating the practice of law.
373 U.S. at 383. But federal law provided t' hat the Commissioner of Patents "may prescribe regulations governing the recognition and conduct of agents, attorneys, or other persons representing applicants or other parties before
-the Patent Office, and the Commissioner . . . has provided by regulation that
"[a]n applicant for patent . . . may be represented by an attorney or. agent I
. . . . . _ . - . . ~ . . . -
c 3; j i
. - t A5 4 ,
3 4 aut$rized ' ot practice before th'e Patent' Office in patent cases" (emphasis and
- citations omitted), 373. U.S.1at 384. .The court concluded
- A State may. not enforce licensing requirements ,
which, though- valid in th'e' absence of federal regu- )
e lation,fgive "the State's ~ licensing board a virtual - !
>. power of review over the federal determination" that a p'erson or agency is qualified and entitled to per-
, form certain functions, or which impose upon the '
- performance of activity sanctioned by federal license ..
additional conditions not contemplated by Congress.
E "No' State law can hinder or obstruct the free use of a license granted under an -act of Congress."
373 U.S.~ at 38518/ 'Likewise, if LILCO can meet NRC requirements it is en-
- _ titled to a . license under the Atomic Energy Act, and that gives it the author-l j~ . ity to implement its emergency plan.
~
.- 10. The Tenth dmendment Does Not Give the i State the Right to Regulate Emergency Planning The Intervenors have argued that the Tenth- Amendment 19/ protects the state laws against federal. preemption. The PID did 'not reach this argu- !
i ment, but it may be made again to this Appeal Board.
I The Intervenorst Tenth Amendment argument has no merit whatsoever, .
b partic'ularly in light of the recent case Garcia v. San Antonio Metropolitan -
Transit Authority, 105 S.Ct. 1005 ~ (1985) . The intervenors argued, at least
{
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f- - 18/ In Huron Portland Cement Co. v. Detroit, 362 U.S. 440.(1960), the
!. Court .said that the mere possession of a federal license to operate a ship did not immunize the ship from the operation of the normal incidents of local po-lice power,'"not constituting a direct regulation of commerce" -- that is, from local laws limiting'~ smoke pollution. 362 U.S. at 447. But the Court noted,
- from ' Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 ~(1824), that a ' state may not exclude from its waters a ship operating under a federal license. 362 U.S. at 447. That:is . analogous to.what the State and County are doing here.
[' 19/2 -By the Tenth Amendment,- the states retain all powers "not delegated to L the United States . . . or to the people." U.S. .Const. amend. X.
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, 2. .. - ,._,2 , . n....._... _ _ . _ _ _ _ . _ _ _ _ _ _ _ _ , . _ . _ _ _ _ _ _ . _ . .,
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before Garcia, that the renth Amendment prevented Congress from invading
" traditional state functions" and that emergency planning is such a' function.
This argument was based primarily on National League of Cities v. Usery, 426 U . S . 833 (1976) .
But in Garcia the Supreme Court rejected as " unworkable" the four-part test established in Usery and. successor cases, particularly that part dealing with " traditional governmental functions" of states,20/ 105 S.Ct. at 1016. The Court observed that while the Constitution protects the state against infinite expansion and application of the Commerce Clause powers of the federal government, that protection is one of " process rather than one of result," inherent in the structure of the federal system. 105 S.Ct. at 1019.
The Intervenors have argued that the LILCO Plan somehow " impairs" their ability to perform traditional government functions, but this clearly is not the case. A finding that the LlLCO Plan can be implemented would not compel the State or County or any of their employees to do, or refrain from doing, anything in an emergency. Nor would it force the State or County ei-ther to do a plan, or not to do one. Indeed, the only thing that would be
" impaired" would be the State's power to prevent the plant from operating.
The only possible " interest" the State could have in preventing emergency planning is in preventing Shoreham from operating, and on the grounds of radiological health and safety at that. The State has no legitimate interest in
.20/ The Court found, for example, that the test had led to inconsistent re-sults as applied to licensing of automcbile drivers (found protected in United States v. Best, 573 F.2d 1095,1102-03 (9th Cir.1978)), and to regulation of
- traffic on public roads (found not protected in Friends of the Earth v.
Carey, 552 F.2d 25, 38 (2d Cir.), cert. denied, 434 U.S. 902 (1977)) . 105 S.Ct. at 1011.
doing that at all. The Intervenors' Tenth Amendment argument, therefore, is without merit.
B. The Board incorrectly Rejected LILCO's " Realism" Argument LILCO's " realism" argument is simply that the State and County would in fact respond if a real emergency were to occur. " Legal authority" can only be a problem if someone with exclusive authority refuses to act; since in a real emergency the State, local, and federal governments (as well as LILCO) would all respond, there would be no gap in legal authority. Since everybody with authority would want to particiate, the NRC need not decide hypothetical issues of who has what authority under state law.
The argument has the advantage of being grounded in undeniable truth: no one in this proceeding believes that if people were really at risk, the State or County would stand idly by, and, in addition, forbid LERO from acting. Although there is a solid evidentiary basis of this fact in the record (see section IV below), the evidence merely confirms what everyone already knows to be true.
Moreover, there is a purely legal basis for a finding that the State and County would respond: a " pre :umption that State officials are carrying out their duties in a proper and lawful manner." Duke Power Co. (Catawba Nu-clear Station, Units 1 & 2), LBP-84-37, 20 NRC 933, 967 (1984). Since the State and local governments in New York have a duty under state law (par-ticularly N.Y. Exec. Law Article 2-B) to respond in an emergency, the pre-sumption should be that they will respond. Indeed, the House report accom-panying the FY 1984 HUD-Independent Agencies appropriations bill suggested L
that the federal government should take into account the duty of states and localities to act in emergencies:
The Committee urges the [NRC] to place the highest priority on this activity [ approving emergency plans] and to take into consideration the established legal requirements of both the local governments and the Federal Government to act in the case of an emergency.
H.R. No.98-223, 98th Cong. ,1st Sess. 142 (1983) (emphasis added). And the House Appropriations Committee report for the HUD-Independent Agen-cies appropriations bill for FY 1985 made this idea even more explicit:
It is the committee's intention that in such review [of emergency plans] FEMA shall presume that federal, state and local government entities will fully abide by the legal duties to adequately protect the public health and safety in the event of an actual emergen-cy.
H. R. Rep.98-803 (1984) . Thus, the Board could, and should, have found that the State and County would respond in a real emergency. That being the case, there would be no lack of " legal authority" in a real emergency. It is entirely a pre-emergency phenomenon.
The Licensing Board misconstrued the argument, believing it to be that the State would simply deputize LILCO employees to carry out an emergency plan but do nothing itself. But emergency response (as distinguished from pre-emergency planning in this case) is not an either-or proposition, with ei-ther LILCO acting or the governments' acting, but not both. it is a coopera-tive effort. In in an emergency the State and local government officials would them*S'es participate, along with LILCO. The Governor or County Execu-tive, or their designees, would probably make the actual decisions about what protective actions to recommend.21/ The police would undoubtedly direct 21/
1 It may be, as the court found in Cuomo v. LILCO, that the " police power" cannot be " deles. ted." But it is still the case that utility employees (footnote continued)
traffic.
The Board also raises a new factual issue by saying that, even assum-ing that LILCO could count on a response by the State and County, it would not be a coordinated effort because the State and County have refused to prepare in advance. PID at 413-14. But the issue of " coordination" is a fac-tual issue not properly raised by Contentions 1-10. They raise instead the purely legal objection that there will be a lack of " legal authority" that will somehow prevent an emergency response. The factual issue of how a coordi-nated response would work is raised by the Board again in connection with Contention 92 and should be treated there exclusively, if at all, if it were appropriate to take up the factual issue of whether an emer-gency response under the LlLCO Plan could be smoothly carried out with the participation of otherwise unprepared State and County officials, the answer, on the existing record, is that it could and would be. This issue was raised by the Board after the hearing and briefed, though only LILCO answered in substance the question the Board had raised. See LILCO's Brief on Conten-tions 1-10, Nov.19,1984, at 42-66. LlLCO's brief showed that the LILCO Plan is designed to incorporate previously uncooperative government person-n ei . And there is no doubt that the County and State would be willing to co-ordinate with LERO in a real emergency; since a planned response better pro-tects the public than an unplanned one, and since the State and County know (footnote continued) can be employed in emergency plans under the authority of the state govern-ment. If nothing else, the Governor has the power under state law to sus-pend state laws in an emergency. N.Y. Exec. Law S 29-a (McKinney 1982).
[
it, it is inconceivable that they would deliberately choose an unplanned re-sponse.
C. The Board incorrectly Rejected LILCO's
" Immateriality" Argument The legal authority contentions fall into two categories: protective ac-tion recommendations (Contentions 5-8) and traffic management for the subset of accidents for which evacuation would be recommended (Contentions 1-4, 9, and 10) . LILCO's " immateriality" argument is simply that the second of these activities is not required by NRC regulations, at least nst in circumstances where the state is resolved to prevent them. (It appears that LILCO has prevailed on this ground on Contention 9, because the PID holds that distributing gasoline is not required. PlO at 264.) Thus, the traffic guides, route spotters, and gasoline trucks under the LILCO Plan could simply be mobilized in an emergency but not actually dispatched until the State or County gave permission. Even without traffic control, an evacuation could be conducted, according to the evidence, in only about an hour and 35 minutes more than under the controlled scenario.
This argument is still important, despite the state court's apparent conclusion that an " emergency plan" per se is illegal if done by private par-ties. The reason is that, even if traffic control in emergencies is not pre-empted by the Atomic Energy Act, in cases where the state refuses to under-take it, the NRC might still find that making protective action recommendations -- a purely " radiological" activity -- is preempted.22/ Hard 22/ Making protective action recommendations is something that state and local officials are permitted to do under their own plans. What they are pre-(footnote continued)
as it is to find that an evacuation plan is not preempted, it is even more far-L fetched to find that making protective action recommendations is not pre-empted. Also, a utility plan that called for recommendations to the public but not for traffic control without state or local consent would be even less a
" major restructuring of federal-state relations" than the LILCO Plan and might change even the Licensing Board's analysis of " actual conflict" preemp-tion.
The Board's rationale for rejecting LlLCO's " immateriality" argument, at PID 421-24, appears to be that the " range of accidents" for which protec-tive actions could be taken would be less because of the increased evacuation time of an hour and 35 minutes. This is incorrect, it is the case that, with the slower evacuation time, the recommended protective action might change, in a narrow range of situations, from evacuation to sheltering, just as it might change if there were a major snowstorm. But that is not contrary to NRC regulations; there is no single "best" emergency plan, and no require-ment that there be one.
What the Board actually appears to be saying is that traffic control is required by NRC regulations, or that the evacuation time increase of 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> 35 minutes violates NRC regulations. There is no authority for either propo-sition. NUREG-0654 and the NRC regulations regarding adequate protection in an emergency at a nuclear power plant do not provide specific evacuation times that must be met but rather require that " accurate" time estimates be (footnote continued) empted from doing is refusing to make such recommendations themselves whi!e also refusing to let the utility and the NRC make them.
E c
developed. See Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-730,17 NRC 1057,1069 n.13 (1983). LILCO's evacuation time esti-mates, including the " uncontrolled" evacuation time estimate, are comparable to estimates for other nuclear power plants. Cordaro et al. (Contention 65a),
ff. Tr. 2,337, at 46-47.
Evacuation time estimates depend on the facts at the time of an acci-dent. If there is a major snowstorm at the time, then the estimates must be increased. Likewise, if at the time the State and County refuse to allow traf-fic control (an unrealistic assumption), then that too is a fact that requires adjustment of the time estimates. That adjustment is known; it is not inordi-nate, it can be incorporated into the Plan, and the Plan can still meet NRC regulations.
D. Even Without Preemption, LILCO's Plan is Acceptable Under S 50.47(c)(1)
The Board held that it was not empowered to grant relief under 10 C. F.R. S 50.47(c)(1) . PlO at 424. This is incorrect. This entire proceed-ing was instituted under 10 C.F.R. 6 50.47(c)(1); as the Commission said, the Licensing Board's decision correctly analyzed "the question of whether the agency can consider a utility offsite emergency plan under its regula-tions,10 C.F.R. S 50.47(c)(1), and the statutory authority afforded by sec-tion 5 of NRC's Fiscal Year 1982-83 Authorization Act." CLI-83-13,17 NRC at 742-43. It said that LILCO must meet all " applicable" regulatory stan-dards. 17 NRC at 743. Among the applicablo standards, LILCO maintains, is 10 C. F. R. S 50.47(c)(1) . Moreover, as the Brenner Board said when it ruled on the County's motion to terminate, the " parties are free to litigate the
proposition that particular factual guidance in NUREG-0654 is either not noc-essary or not sufficient for the Shoreham facility to comply with the Commis-sion's regulations." 17 NRC at G44, aff'd,17 NRC 741. At issue bere is not a request for a waiver of the rules, but for an application of them.
Section 50.47(c)(1) reads as follows:
(c)(1) Failure to meet the applicable standards set forth in Paragraph (b) of this section may result ir, the Commission declining to issue an operating li-cense: however, the applicant will have an opportu-nity to demonstrate to the satisfaction of the Commis-sion that deficiencies in the plans are not significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation.
This provision was intended to be consistent with the 1980 NRC Authorization Act, which in turn was intended to ensure that utilities whose surrounding localities did not participate in emergency planning would not be penalized.
45 Fed. Reg. 55,403 col.1 (1980); H. Conf. Rep. No. 96-1070, 96th Cong.,
2d Sess, 27 (1980), repriated in 1980 LS. Code Cong. L Ad. News 2260, 2270.- It allows the NRC to consider all the circumstances in deciding whether to permit a plant to operate.
The LILCO Transition Plan is an " interim compensating action" under 10 C. F. R. S 50.47(c) . As such, it is not required to give as much assurance as the ordinary governmental plan.M/ Moreover, one of the factors the Board 23/ Consolidated Edison Co. (Indian Point, Unit No. 2), CLl-83-16,17 NRC I0OG, T010 (1983) (though interim compensating actions must be " adequate,"
they need not necessarily provide the same level of protection that complete correction of the deficiencies would offer): Southern California Edison Co.
(San Onofre Nuclear Generating Station, Units 2 L 3), LBP-82-39,15 NRC 1163,1174 (1982) (failure to meet one or more of the emergency planning (footnote continued)
_ _ _ _ _ _ _ _ _ _ - - - .- t
may take into account is that any shortcomiigs in the plan caused solely by the state or local goverome.it's refusal to cooperate are beyond the applicant's con trol . See Consolidated Edison Co. (Indian Foint, Unit No. 2), CLl-83-11, 17 NRC 731, 733 (May 5,1983); CLI-82-38,16 NRC 1698,1703 (1982). Also, as a recent Commission policy statement makes clear, S 50.47(c)(1) allows
" equity" to be taken into account. 50 Fed. Reg. 20,892, 20,894 col.1 (May 21, 1985).
The only major " deficiency" in the LlLCO Plan is Suffolk County's and New York State's refusal to participate, and this came very late, when the plant was almost completed. Also, since the State and County governments would participate in a real emergency, the existence of a LILCO Plan capable of incorporating State and County resources is an adequate " interim compensating action." For the same reason, the " deficiency" of pre-emergency government nonparticipation is not "significant" for Shoreham.
And for the same reason, the Board should have found that there are "other compelling reasons to permit plant operation."
(footnote continued) standards does not necessarily result in a denial of an operating license);
Pacific Gas & Elec. Co. (Diablo Canyon, Units 1 and 2), ALAB-644,13 NRC 903, 937 (1981); Duke Power Co. (Catawba Nuclear Station, Units 1 & 2),
LBP-84-37, 20 NRC 933, 940-41 (1984) .
O
Ill. THE "CONFLlCT OF INTEREST" FOUND BY THE BOARD DOES NOT PREVENT LILCO FROM IMPLEMENTING A SUPERIOR EMERGENCY PLAN Contention 11, which the Board decided in the Intervenors' favor, says that because of "LILCO's financial and institutional interests" LILCO employ-ees will have a " strong incentive to minimize the public's perception of the potential or actual danger involved in a radiological emergency in order to avoid engendering public or LlLCO shareholder disapproval of LlLCO, or anti-Shoreham sentiment." Despite the word " incentive" in the contention, the contention has nothing to do with conscious wrongdoing. Tr. 10,921, 10,929 (Saegert),10,927 (Lipsky),10,928 (Cole), it deals rather with sub-tie, insidious effects that are, according to Intervenor witnesses, virtually impossible to detect. Tr. 10,967 (Cole), Tr.10,964 (Lipsky).
The Board decided that no plan in which utility company executives make the decisions can meet NRC regulations. This was not really an eviden-tiary decision; it was rather a legal judgment based on what the Board saw as the " structure" of NRC regulations:
It is clear that the regulations and Commission guld-ance contemplate that command and control decisions will be made by officials ^ of state and local govern-ments during radiological emergencies. Cf. 10 C.F.R. 50.47(b)(i); NUREG-0654, Section ll. A.
The Board concludes that the reason the Commis-sion's regulations are structured in this fashion is to i assure independence in emergency decisions.
PID at 63. " Independence," in fact, was the entire basis of the Board's deci-sion. For example, the Board discounted the Staff's testimony once it found that the Staff gave little importance to " independence." See PID at 54-56.
The Board concluded that it is in the utility's interest to minimize an accident
54-and delay vigorous response, whereas it is in public officials' interest to characterize an accident accurately and promptly respond:
Applicant has not met the burden of demonstrating that the employees in command and control positions in LERO are sufficiently independent from LILCO to maintain independence and objectivity, in ambiguous accident situations, their loyalties, personal inter-ests, and career inclinations would dispose them to minimize their estimate of possible hazard and might cause delay in or omission of proper public notifica-tion and protective actions.
PID at 62-63, it is not unusual for licensing boards to entertain issues about the character, integrity, or " commitment," of applicants.2_4/ But never before has a utility been disqualified in advance, not on account of any misdeeds of its own, but only because of the "way utility employees think." Tr. 10,928 (Cole) .
This conclusion is roversible error for the following reasons:
- 1. The Board found "independen ." to be the sole cri-terion of acceptance, contrar. to the evidence and to NRC practice.
- 2. The Board assumed, contrary to the evidence, that it is in the " interest" of utility employees to underestimate the seriousness of accidents or delay in coping with them.
24/ See, for example, Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), LBP-77-68, 6 NRC 1127 (1977), aff'd as to this issue, ALAB-491, 8 NRC 245 (1978) (utility's " commitment to safety");
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772,19 NRC 1193 (1984) (management integrity and character); Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-73217 NRC 1076 n.39 (1983), ALAB-801, 21 NRC (March 22,1985) (" character and competence"); Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB-799, 21 NRC 360 (1985) (character and competence);
Consolidated Edison Co. (Indian Point, Unit Nos. 2 & 3) LBP-83-68,18 NRC 811, 936 n.61, 973, 975 (1983) (would licensees notify public officials prompt-ly in an emergency?). See also Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076,1099-100 (1983).
~55- ;
- 3. The Board found as a fatal flaw in utility employees' thinking the sort of subtle, unconscious influences <
that affect.every , human being, including elected of- !
ficials. ;
- 4. The Board placed undue weight on these subtle in- !
fluences, which would'almost certainly be minor com- !
pared to all the other influences on decisionmaking. ,
i
- 5. The Board ignored or discounted the measures LILCO has taken to include consultants, DOE, the l NRC, FEMA, and the Intervenors in the deci-sionmaking process.
l Any one of these reasons is sufficient to reverse the Board's decision on Con-tention 11.
l A. The Board's First Error: Setting Up "Indepen- ,.
l dence" as the Sole Criterion
- To operate nuclear plants, or emergency plans, ' humans must make de-l cisions and take actions. And they may make mistakes. To prevent mis-takes, the NRC relles on, and has always relied on, a combination of (1) .
sound procedures, '(2) training, and, as a last resort, (3) NRC oversight --
t in other words, in professionalism. See Schwartz, ff. Tr.15,143, at 2.
All three of these elements in the LILCO Plan are superior: the proce-
-dures- are exemplary in scope and detail; the " training" contentions have been resolved In' LILCO's favor, PID at 151-70; and the NRC Staff witnesses testified that the NRC oversight would be both prompt and authoritative.
Nevertheless, the Board found that LlLCO employees might in the future make the wrong decisions or make the right ones too slowly, i Contrary to the Board's analysis, " independence" is not the principal criterion of decisionmaking. Dr. Mileti, the only witness who testified on Contention 11 with the benefit of any background in disaster research, '
P
explained that sociologists have learned why people behave the way they do in emergencies and that certain measures can be taken to guard against inap-propriate reliance on people's personalities, fears, biases, beliefs, notions, and so on. ~ Cordaro, et al. , ff. Tr.10,196, at 10-11. Dr. Mileti's four rec-ommendations were (1) formalized decision and transmittal instructions; (2) advance formalized substance, process, and spacing of public information; (3) knowledge by participants that they are expected to carry out their tasks in a specified manner; and (4) knowledge that there will be a post-event audit. Id. at 11-12 (Mileti). These principles are based on a large body of empirical research on behavior in disasters. Id. at 12; Tr.10,273-79 (Mileti) .
Dr. Mileti's third factor, the participants' knowledge that they are ex-pected to carry out their task in a specified manner, is consistent with the testimony, accepted by the Board, that " role certainty" (a clear understand-ing, and acceptance, of one's emergency role) prevents problems of " role con flict. " It is also consistent also with NRC Staff witness Sears' emphasis on accepting " responsibility." Tr.15,211-12,15.213,15,250 (Sears) .
The Board's finding on " conflict of interest," on the other hand, is a denial of the value of emergency planning. Both Dr. Mileti and the NRC Staff testified that one reason emergency planning is done is precisely to counter-act the types of effect postulated by Contention 11. Tr.15,216-17 (Scars),
Cordaro et al. , ff. Tr. 10,196, at 10-13. There was also ample evidence that training can alleviate various types of " conflict" and that drills and exercises can reveal inappropriate behavior and promote appropriate behavior.
Cordaro et al. , ff. Tr.10,10G at 19, 29; Tr.1110,1150,10,271 (Mileti), 937,
e 939 (Sorensen), 2159 (McIntire); Tr. 15,170, 15,17G (Schwa rtz), 15,213, 15,228-29 (Sears).
The Board's almost total reliance on " independence" is thus in conflict both with the evidence and with the basic philosophy of NRC regulation, which relies on' licensees to take proper actions, checked by NRC over-sight.25/ if correct, the PID suggests not only that licensees should not be trusted with offsite emergency plans, but also that they should not be trusted with onsite plans, under which the emergency is initially classified and notification is made to offsite authorities. It also implies that private utilities should not be allowed to operate nuclear plants at all, since operating them requires countless decisions in which the " utility bias" perceived by the Board might play a role. See Schwartz, ff. Tr.15,143, at 2 (no difference in kind between utility decisions in regular operation and decision in offsite or onsite emergency plan).
The NRC should not shift from reliance on professionalism to a Freudian-style theory that people are prisoners of their unconscious. And the PID should be reversed for that reason.
25/ Cf. Petition for Emergency and Remedial Action, CLI-78-G, 7 NRC A00, 4I8 (1578) ("In order to fulfill its regulatory obligations, NRC is dependent upon all of its licensees for accurate and timely information. Since licensees are directly in control of plant design, construction, operation, and mainte-nance, they are the first line of defense to ensure the safety of the public.")
Other emergency planning decisions have recognized the utility's responsibill-ty for monitoring releases of radioactive materials. Pacific Gas and Elec. Co.
(Diablo Canyon Nuclear Power Plant, tinits 1 and 2), LDP-82-70,16 NRC T56, 827 U 205 (1982); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), 15 NRC 1163,1201-02 (1982); see also Carolina Power _r, Light Co. (Shearon Harris Nuclear Plant, Units 1 r, 2),
ASLBP No. 82-472-03 OL, slip op. 10-11 (June 14,1984) (State initially de-pendent on licensees' monitoring); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), ALAB-698,16 NRC 1290,1712-13 (1982).
58-B. The Board's Second Error: Assuming a Diver-gence of " Interests" The Board's second major error was that it assumed, contrary to the evidence, that in an accident the utility company and its employees would have an " interest" that conflicted with the interest of the public. The evi-dance simply does not support this assumption. All the parties appear to agree.that the consequences of a utility's making a wrong decision that harmed the public would be so devastating that it could not be possibly be in the utility's interest to do so. Tr.10,361-62 (Weismantle), 10,962-63 (Lipsky), 15,203,15,206 (Sears); see also Tr.10,384 (Kessler),10,955 (Olson), Tr.14,601 (Keller) (LILCO's own interest is in objectively evaluating its drills).2G/ Also, the record suggests that a utility would likely err in the direction of conservatism, in line with the "as low as is reasonably achievable" principle. Tr. 8787, 8788, 8805 (Cordaro), 8700, 8814-15, 15,363 (Watts); see also Tr.10,384 (Kessler) (LILCO tends to overreact in natural gas emergencies).
Moreover, the Board ignored its own findings on " role conflict" to the effect that an emergency alters people's values:
In an emergency, protection for threatened people becomes the highest priority while other values di-minish in importance. This phenomenon is called
' " emergency consensus." Dynes and Mileti, ff. Tr.
831, at 18-19. The emergency consensus reduces role conflict because it makes clear the appropriate behavior of those who work for organizations with emergency responalbilitle>. Id. at 20.
26/ Even the Intervenors, in footnote 94 to their proposed finding 159, ap-peared to concede that theie was no real " conflict" between the Interests of the public and the interests of LILCO in an emergency (although they contin-ued to try, inconsistently, to establish a conflict in their findings 159 and 164).
59-PID at 44. This finding is correct; one of the most significant findings of di-l saster research is that in widespread emergencies values like earning a living l are deemphasized. Cordaro et al. , ff. Tr. 831, at 18-20. Indeed, the i seminal paper on " role conflict" relied on by the Intervenors found that in conflicts between loyalty to the company and loyalty to fellow employees as human beings, the almost universal reaction was to think of the men first and the plant later. Cordaro, et al., ff. Tr.10,196, at 21-22. But the Board concluded that while loyalty to one's family would not be a problem for emer-
- gency workers,. loyalty to one's employer would be. ,
What the PID, and the intervenors, really seem to be saying is that in i an emergency decisionmakers would " hope for the best." They would hope -
that the accident would be brought under control, and they would want to !
avoid alarming the public by giving notice of an accident or, even worse, !
telling them to abandon their homes. This impulse would certainly exist; it would exist in anyone. But what Contention 11 and the Intervenors' evidence says, at most, is that the utility will have one reason for feeling this way that I
public officials will not have, namely that the utility is responsible for the l power plant in the first place. (Public officials, of course, would also have an exclusive reason, namely their concern for reelection.) To conclude from !
this that utility employees would be more biased is simply wrong.
1 i
5
C. The Board's Third Error: Making a Universal and Inescapable Fact of Life into a Bar to a Utility Plan The third major error in the Board's analysis of this issue is that the existence of subtle biases in people's thinking is a universal phenomenon that would, by the Board's reasoning, disqualify everyone.
it is true that all sorts of things can affect a person's decisions on any given day: indigestion, lack of sleep, or childhood traumas, for instance.
Likewise all sorts of experiences, biases, beliefs, personality traits, and so forth can affect people's thinking and behavior. T r. 10,371 -72, 10,377, 10,389 (Mileti). Everyone, public official and utility employee alike, has
" subtle mindsets" or "blases," Tr.10,9G1 (Lipsky),15,21G (Schwartz), not all of which arise from one's job, Tr.10,961 (Lipsky).
The Board's error comes from picking out one of these " influences" or
" biases," carefully defined by the Intervenors so as to apply only to utility employees, and ignoring the implications of that reasoning. For example, the record in this proceeding shows that women tend more readily to believe emergency information than men. Tr.10,592 (Mileti). Are we then to dis-qualify women from offsite decisionmaking because they are less likely to be skeptical of information from the plant staff? Or are we to disqualify men be-cause they might delay too long while they double-check the information? Old people are harder to convince that an emergency is about to happen. Tr.
10,593 (Mileti) . Should old people be disqualified because they might delay advising the public to evacuate? Or should we seek out older people because of their experience and wisdom?
Virtually any scientific fact about how people behave can be used to disqualify one group or another. For example, one study cited by Suffolk County's witnesses found that younger persons, women, and more highly ed-ucated persons were "most upset" during the TMl crisis; married persons were more distressed than single persons. LILCO Ex. 63, ff. Tr.10,902, 16th and 32nd pages. Should we then disqualify young married women with college degrees because stress might affect their judgment? Or should we seek them out because some stress is beneficial? Tr.10,633 (Mileti).
In particular, the record shows that government officials, being human, are subject to the same sorts of influences as anyone else. For exam-ple, it is perfectly clear that public officials' concern for their own reelection prospects might make them downplay emergency information. Cordaro, e_t al, (f. Tr.10,100, at 21, 24; Tr.10,225-2G (Mileti). Moreover, the record reflects the following evidence:
- 1. The NRC Staff witness testified that in drills and ex-ercises he has seen public officials delay before tak-ing action, Tr.15,213 (Sears);
- 2. At Three Mile Island the Governor turned to his press officer for advice, Tr. 10,929 30, 10,934 35, 10,953 3TTPurcell);
- 3. A research paper cited by Suffolk County's witness-es reported finding 200 reasons why public officials resisted installing emergency warning systems,
- LILCO Ex. 60, (f. Tr.10,002, at 18182; Tr.
10,80105 (Saegert).
Despite this evidence, the Board found that only public officials are psycho-logically capable of making emergency decisions.
7' D. The Board's Fourth Error: Exalting the insubstantial The Board's fourth major error is that the "blas" It finds dispositive is a mere phantom. Contention 11 boils down to the preposition that the Direc-tor of Local Response might in good faith make a wrong decision in a close case 27/ where judgment was required. Wel'l, of course he might, as might anyone. But to raise such a consideration to the basis of an NRC licensing decision is unheard of. The postulated " utility bias" is indistinguishable from )
simple error, as one Board member appeared to recognize. Tr. 10,031 -32 (Judge Kline).
The fact is that the " utility blas" has been so carefully defined that it is incapable of being proved or disapproved. Since it is unconscious, even the person who has it is unaware. Indeed, a County witness testified that it l
l would be impossible to prove that the bias had been at work in an Individual l
l case. Tr.10,0G7-68 (Cole). And the bias is said to be so subtle that it does not affect the reporting of safety information, Intervenors' proposed finding 172, Tr.15,258 (Sears) (even though reporting such information might be contrary to the utility's interests, Schwartz, (f. Tr.15,143, at 2).
It is only in certain ambiguous situations that this bias would allegedly 27/
E~ve a its effect, because in many situations the procedures leave little room for judgment. The plant staff initially classifies the emergency as Unusual Event, Alert, Site Area Emergency, or General Emergency and communicates this classification to the offelte organization, along with a protective action recommendation, if appropriate, if the onsite classification is of a General Emergency with a recommendation for protective action, and the Director of Local Response cannot be reached within 10 minutes, the Customer Service Operator must direct the plant to activate the warning sirens. OPIP 3.1.1 6 5.4.2.c, OPIP 3.3.4 55 3.1, 5.1.1.c.1; Tr.12,687 88 (Kowleski, Baldwin),
15,184 (Sears). Likewise, once the Director is in command, if he declares a
" Site Area" or " General" emergency, the EBS system, including sirens, must be activated. Cordaro, et al. , ff. Tr.10,100, at 18.
63-Given the subtle, unconscious, undetectable nature of the utility blas, it is incorrect to conclude that it would overcome all the other influences on decisionmaking. For example, the Director makes protective action decisions in consultation with the Radiation Health Coordinator, who is a consultant, not a LlLCO employee. The Rad Health Coordinator relles on recommenda-tions from the onsite staff and, if time permits, on information from the De-partment of Energy RAP Team. Cordaro, et al. , ff. Tr.10,106, at 14-15.
The recommendation from the onsite staff is based on Emergency Action Lev-els (EAL's) which are based on plant conditions. The NRC Staff witnesses were of the opinion that the onsite recommendation, based on EAL's and plant conditions, would be the principal influence on the Director's decision. Tr.
15,210, 15,224, 15,228 (Sears). Yet the utility blas is alleged to cause the l
Director to overrule the onsite recommendation, or the consultant's advice, or ,
the DOE advice, or perhaps all three.
It is clear that the effect of the alleged bias must be small compared with the other sources of error in decisionmaking. For example, the Board was not overconcerned about a range of evacuation time estimates of five hours to six and a half hours, PID at 252, nor by an uncertainty of 50 per-cent in a nomogram used as a backup to project doses. PID at 208. There is nothing unusual in this; the licensing board in Indian Point noted that the range of uncertainty in evacuation time estimates was "considorable."
Consolidated Edison Co.. (Indian Point, Unit Nos. 2 t, 3), LDP 83 G8,18 NRC 811, 070 (1983). But to raiso just one such factor to dispositive status is w rong.
l 64- !
l I
If the Board wished to take into account a subtle psychological factor such as the " utility blas," It should have balanced against it the advantages of a utility plan that a governmental plan does not have.
For example, the NRC Staff witness testified that communications from the plant to the offsite '
l emergency organization will be facilitated.28/ He testified also that the NRC l
has more control over a utility's decisionmaking. Tr.15,242-43 (Sears),
15,244,(Schwartz) . And LILCO~ testified that the level and scope of emergen-l
. i cy planning expertise availabla to it is not likely to be matched by state or ;
l local governments. Barnett et al. , f f. Tr.10,396, at 40; see also Tr. 843-44 (Cordaro), 9456 57 (Weismantle). Instead, the Board relied on "indepen- f dence. " ,'
E. The Board's Fif th Error:- Ignoring the Independence l of Non LILCO Pers9n,nel I
Even if we at. cept the Board's legal view that " independence" is the
- r sine qua non of emergency decisionmaking, the Board still erred in finding l .
l that there.ls not sufficient !ndependence in the LlLCO Plan. The Board fo-I cused on the measures LILCO has faken to insulate its emergency planning deciolonmakers from other dacisionmakers in the company. The Board gave
!. little or,no weight to the colo of non-LILCO pecole in the plan.
As noted above, tne Rad Health Ccordina:or is a corshitant, and LlLCO has also f l
i I 2.8/ ' Unfortunately, the Board druck some words from the written testimony O that changed the mean,ing of the sentence. As written, the testimony said ,
l that thers ir an advantage to having the offsite Director in the same company as the onsite staff. (This helps to avoid a " credibility gap" between onsite ,
=
and offsite that may cause delay. Tr.15,170 (Schwartz).) As revised by :
the Board, the testimony says that it is an advantage to have the three Di- F l rectors part_of the same organization. See Sears, ff. Tr.15,143, at 7.
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i 65-arranged for two independent scientists from Brookhaven Lab to serve as in-dependent reviewers of information. Cordaro et al. , ff. Tr.10,396, at 39, as amended by " Errata and Update," ff. Tr.10,396, at 1-2, Tr.10,397-98 (Robinson) . The DOE RAP Team plays a substantial role in the Director's
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protective action recommendations. And LILCO has made unusual efforts to .
accommodate the press. Tr. 2035-36 (Weismantle). Moreover, LILCO has ex-pressly provided in its plan measures to advise the State and County of an .-
accident and to subordinate LlLCO decisionmakers to State or County deci-sionmakers, if the State or County decide to participate. Tr. 10,527-28 (Weismantle) . Thus the very parties concerned about " conflict of interest"
! .can cure the alleged problem simply by participating.
l in addition, the Board discounted the Independence provided by NRC
! Staff oversight. The Staff testified, in brief, that they could be in phone l contact with LILCO in a matter of minutes and that, if they thought the utili-ty was making the wrong decisions, they would take over the decisionmaking themselves. Tr.15,247-48 (Schwartz),15,242 (Sears). The Board rejected I
this testimony because it found that the Commission's own procedures are in-adequate, but it did not investigate the procedures (NUREG-0728 and -0845) cited to it by the Staff witnesses. Tr.15,232 (Schwartz). Moreover, if the Board is correct, then the Commission should clarify its own responsibilities rather than reject utility plans, l
IV. LACK OF COORDINATION WITH THE STATE IS NOT A VIOLATION OF NRC REGULATIONS Contention 92 says that there is no New York State plan for Shoreham and no provision for coordinating with the State if the State responds. The Board's decision on Contention 92 is at PID 367-71. Like its decision on Con-tention 11,-the Board's decision on Contention 92 is essentially
, nonevidentiary, based on the Board's view that NUREG-0654 requires a state or local government's participation. What the evidence shows, as the Board found, is that LILCO has arranged a'dequately to perform the functions that New York State performs under other nuclear emergency plans. PID at 367, 369, 370. Moreover, as the Board found, the LILCO Plan has provided for the participation of State officials by, for example, installing communications systems. PID at 368.
This should be enough for LILCO to prevail on Contention 92, but in fact the Board concludes the opposite. It does so on essentially two grounds.
First, although the evidence shows that LILCO has adequately provided for the four. functions that New York State customarily provides, the Board has "a great deal of trouble accepting that that is all that a state might do i'n a genuine emergency." PID at 370. Since the State might, the Board specu-lates, be called upon to do all sorts of things, it does "not believe that public i
health and safety can be protected as well by LILCO acting alone as it could if LILCO were acting in concert with the State of New York and with the County." PID at 371.
This is an extraordinary conclusion. The finding that the State might be able to do something that LILCO cannot do is not-based on the record.
I i
The Board has not found any specific deficiency in the Plan, only that a State has greater resources than a utility, which is true but irrelevant. And LILCO is not required to protect the public health and safety "as well as" it could in concert with the State and County. Moreover, it is not apparent that a state can do a better job at emergency planning than a utility and its 2
consultants; after all, one NRC Staff witness said that LILCO's was the best offsite plan he had ever seen. Tr.15,226 (Sears); see also Tr.15,298 (Watts) (most comprehensive recovery and reentry plan witness has ever seen).
Second,- the Board says that the guidance of NUREG-0654 at 23-24 call-ing for an integrated approach cannot be met where the state and county re-fuse to participate in planning or to commit to respond in an emergency. PID at 369-70. The Board concludes that the provisions of 10 C.F.R.
S 50.47(c)(1) for adequate interim compensating measures "were not intended to stretch as far as LlLCO urges in this case where no participation whatever from State and local authorities can be counted on." PID at 370. In short, a utility plan without the cooperation of the state or county cannot possibly meet NRC regulations.
The legal conclusion that the regulations and guidance require state or county participation is.directly contrary to the Commission's earlier decision that this proceeding could go forward on the basis of LILCO's Plan, without
~
the cooperation of the State and County. For the reasons already given, the Board's decision simply reads " utility plans" out of the law and nullifies the i Commission's decision of two years ago.
i l
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s Moreover, it defies good sense to find that the State would refuse to cooperate in a real emergency. Since coordination'and planning are undis-putedly;better for the public than lack of coordination and planning, the only
. motive the State can possibly have for refusing to participate is the hope of preventing Shoreham from operating. In a real emergency that motive will no longer exist. To suppose that the State, if faced with a real emergency, would stubbornly and harmfully persist in refusing to use LERO's resources is unrealistic.
Also, the weight of the evidence supports the proposition that the State and County would cooperate (that is, coordinate) in a real emergency. The Lintervenors carefully avoided saying anything about what they would or wouldn't do in a real emergency. But LILCO witnesses testified that they be-lieved the State and County would cooperate. The Board struck much of this testimony, impermissibly in light of its ultimate decision. For example, a LILCO witness answered a Board question as follows:
A. (Cordaro) I am not aware of any formal agreement or understanding we have with the county which says that they would coordinate their efforts.
That's' pretty much due to the fact that we have this what I call an academic situation here, where our plan has to stand on its own and the county has contended that it will not participate in any way.
Now, in the real world, .if this goes forth and a plan is approved and an accident does indeed take . place, or plant gets a license to operate . .. I fully expect that the county will re-alize what the situation is and cooperate.
Tr.1972-73 (Cordaro). The Board struck all.this but the first paragraph, and more besides. Tr. 1973. See also Tr. 2064-66, Cordaro et al. , ff. Tr.
o
831, at 29-30; Tr. 790-93; Order Confirming Changes in Schedule with Re-gard to " Group ll" Contentions and Rulings on Motions to Strike (Dec. 2, 1983). Nevertheless, some opinion testimony that the intervenors would co-operate remains in the record. 10,518-19 (Weismantle); see also Tr.
10,472-73 (Clawson). Also, when a party has relevant evidence within his control and fails to produce it, the inference arises that the evidence is unfa-t-
~
vorable to him. Public Service Co. of New Hampshire (Seabrook Station, Units 1 r, 2), ALAB-471, 7 NRC 477, 498, rev'd as to other matters, CLl-78-14, 7 NRC 952. (1978). In the absence of any evidence from the Inter-venors, the Board should have accepted LILCO's testimony instead of assum-ing the worst.
Finally, even assuming that the State attempted a response but refused to coordinate with LILCO in the aftermath of an accident, it is implausible that this would harm the public. All four of the functions that the state ordi-narily performs have to do primarily with the ingestion pathway EPZ, and the activities involved are generally carried out with sufficient time for delibera-tion . (See, for example, -PID at 363 regarding recovery and reentry.) The four functions are i '
- 1. Dose projection based on release data communi-cated to State officials, l
- 2. Ingestion pathway sampling in the 50-mile EPZ,
- 3. Interdiction of contaminated foods, and
- 4. Protective action recommendations.
It is not credible that, in the aftermath of an accident, the State's pre-accident posture of noncooperation would somehow interfere with these activi-l ties. At the worst there might be some duplication of effort -- for example, l
l l
t
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-l I
if both the State s id LILCO were to sample-the groundwater but the State re-fused to let LILCO know. And since the LILCO Plan calls for subordination to State and County decisions, there would not likely be any cases of, for ex-ample, conflicting protective action recommendations. In short, the PID reso-lution of Contention 92 is contrary to the evidence as well as the law.
V. CONCLUSION The PID has eliminated the possibility of " utility plans." This is di-rectly contrary to the will of Congress, and to NRC regulations that were ex-pressly intended to be " consistent with" that will. Moreover, the PID gives state and local governments a veto over nuclear power plants that Congress has declined to give them for over 30 years. This aspect of the PID simply cannot be squared with' the facts or the law and ought to be reversed.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY BY ,
. Taylor Revfley~, Ill onald P. IrMn James N. Christman Kathy E. B. McCleskey Hunton r, Williams P.O. Box 1535 707 East Main Street Richmond, VA 23219 DATED: June 3,1985 l
l
- , . , . - , . , u . - --
1
-l UNITED STATES OF_ AMERICA "
NUCLEAR. REGULATORY COMMISSION -
DOCKETED Before the Atomic Safety and Licensing Appeal Board in 'the~ Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-Ek3%{C[gfp~, i I
) (Emergency Plann,ing B,uNcq (Shoreham Nuclear Power Station, ~) Proceeding)
Unit 1) )
Attachments to LILCO'S BRIEF
.. SUPPORTING iTS POSITION' ON APPEAL FROM THE " PARTIAL INITIAL DECISION ON EMERGENCY PLANNING" OF APRIL 17, 1985
- 1. Suffolk County ordiaances
- 2. Transcript pages cited in brief June 3,1985
1 , -
It' tr * . Re c . No . 1515-82 Introduced by the Presidi:., fficer at the request or the County Executive RESOLUTION NO. 455 - 1982, RIQ:ESTING THE
'SUFFOLK COUNTY LEGISLATURE TO CCMMENCE AN INVESTIGATION OF THE ACTIONS CF OEE LONG ISLAND LIGHTING COMPANY IN SO3XIITING A DOCUMENT TO THE STATE OF NEii YCRI DISASTER PREPAREDNESS COMMISSION h3 ICE PR3 PORTS TO BE THE LOCAL OFF-SITE EMERGENCY PLA'i FOR SHOREHAM
'WHEREAS, on May 10, 1982, the Lo:g Island Lighting Company (LILCC l submitted a document to the Disaster Prepared ess Commission of the State of NE York under cover of letter of the same date whi:h proports to be "the local off site emergency plan for Shoreham;" and WHEREAS, Rasponse Plan of such document Suffolk County; and is in fact and law not the Radiological Emergenc WHEREAS, the County did not authorize LILCO to take such action; and WHEREAS, in so doing, LILCO appears to have acted in derrogation c Suffolk County Legislature Resolution No. 262-82 which requires Legislatu:
approval of any such plan before its subnission to any outside agency; and WHEREAS, LILCO knew the document its actions were :ot authorized by the County, an that which LILCO sent to the State was not the County' Radiological Emergency Plan; and WHEREAS, such document was sent without authorization of Suffolk Count in minders ' entitled "Suffolk County Radiological Energency Response Plan;" and WHEREAS, th3refore, be it such actions by LILCO may also be in voilation of the law; now RESOLVED, that the Suffolk Ccucty Legislature commence a ful-invastigation of such activities of LILCo; and. he it further
!' RESOLVED, that the Presiding Officer of the Suffolk County Legislatur
!- cppoint a special legislative investigation ecmsittee to include special counse with. necessary appropriations to fund such investigation for purposes e dotcrmining all pertinent facts and any legal recourse which the County may hav against LILCO; and be it further RESOLVED,, that such special legislative investigatory committee h octablished as soon'as possible and commence its work forthwith; and be i further
.t SOLVED, that the findings of such cc:mittee be forwarded as necessar to cny other agency of government for any actio: warranted; and be it further RESOLVED, that the Suffolk County Co=ptroller and County Treasurer be an they hereby are authorized to transfer the following funds:
Fr . To Amount i
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Plant.'ing Dept. -- De; f Lav- S25,000
- Omnibus. !
01-5631-498 Contract Services 01-1420-456 DATED:- May 18,- 1982 APP VE BY:
jA A'-
CouKy Executive of Suffoix County Date of Approval: . (f p[py F
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.o. 1516-82
- 1. * ! . Introduc2d by Legislators 314ss, 23ssa, Foley, Caracappa, Cissa, Allgrave, D.
. .s ,
- l 04 nichards, vine, Measek '4antenberg, Rizzo, Nolan, Mariton,- Hoto, Howard, Prospect, Lasua, 3ESOLUTICrf NO. fi% -198 2. ESTA2LISHING THE I
j I 31.'310LCCICAL EMERCENCY RESPCNSE Pr in3ING
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20LICY Cr Tut 03cNTY cr SUTTOLA W'NEREAS, j County of Suffolk has the primary responsibility for the j
. protection Island f.ighting of its Company'sresidentsshorcham in the uvent Nuclear of aPower radiological Stations energency and at the Lcng )
WHEnKAS, .
Suffolk Ccunty takes this responsibility seriously and intends, 1 through good faith and sound planning of forts, to assure that the best possible i
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ecargency County; and plan and preparndness are develo p d to protect the citisens of Suffolk i
1 a NMERfAS, Suffolk County's Emergency Pl.tnning Task Force, codposed of l nationally.recognizad experts drawn from a range'of pertinent disciplines, is 1
]l. I vir.ble now conducting radiological'acergency a detailed planning effort plan infor order suffolk to attesnytCounty to develop a s > and P
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$ aet, the rightfulhas gone powers beyond of its powers as a private corporation in anusurp atterop i q- Suffolk County by submitting county planning resource' G matorial to the New York State Disaster Preparedness Coramission for its approval 1 "
cs the of ficial radiological emergency response plan for Suffolk Countyy and
~
.j WHEREAS, said planning resource material portonnel, is preliminary data which in no way constitutes thedevelopedSuffolk in part by County- county
) approved RADIOLOGICAL EMERGENCY RESPONSE PLAM and will not in the future
.]jonstitute such County plans and HMEREAS, Suffolk I
3 i , PLAN to .the New York State Disaster Preparedness Cornmission only when has been fully prepared and approved by Suffolk County and is thereby integrated plan that with the pl.taning efforts of both LILCo and New York Stater therefore, be it i O f g
4, RESQLVED, pediolcgical Emergency Response Planning Po'. icy:
that Suffolk County hereby established the fol1# wing 4.
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Suffolk county shall not assion runa. -
- personnel to test or implement anw
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radioleu cas emergency response nima for L
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the Shoreham plan hea been Nuclear ru uv Plant unless EMme aevetonen en eu hast of the~ County's -
ability. ~
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4 Suffolk Ccunty shall not assign funds of pSr:annel to test or implement any 4 { radiological energency response plan for
[ # the Shoraham Nuclear Plant unless that 2
plan has bien the sunf eet af * * ' - = s t t.wo public hearings, one to be held in River-y head, t.nd one to me nela La nagpauge. ,
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- Suffalk C;unty sh:11 nott assiginr unda g
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, '.) . 51olog)ical esertency response plan for 4
the Shoreham Noelear Plant univss J (t .k 1 Plan has been approved,_af ter ;6itdie heart-
' j and W.qs, br. theExecutive su f folk countMeg E31ature g 2. County -
.p end, be it further 2 .
RESCf.VED,
]w th.' t copies of t.his resolution be sant to the Covernor, the SPsaker of the Ass .nly, the Majority to-dent of the senate and tho t.2gisictur :
- of the state of Nc*.s v. rk.
'j D.'.;ED : May it,1982 APPP"..' 3 BY 1' fe M .s -
p courr$y ExwcutAve of Suffolk County
. Date of Approvals #* / jsA
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. Eye i. a ceriefg tw ,3. William H. Rogers. Clerk of the St!FF01.K Col!NTY Cang Kapskrur, ' County I4gtstr.ture of the Ceunty of Suffe!k h:ve comer. red the
[ ?.IVEP.itEAD. M. Y. t foreping copy of res,slutic,n e ith the ori:;in;.1 resaludon now on fi!:in j this office.and hich was duly ade:ted by the Ccunty (Aci:1.-ture e fi. .id
, County oo /f, /ffa2 /
Y' i and th:1the same a true and correcttren.tcript of 1.id resolution r nd of I
-g , me . hole et,e.c
-( J.y*as UI.e t.J have hereunto set .../ hand nd the officit!
'O sealof the County legislature of the County of Suffolk.
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~ntro. Res. No. 1517-82
- ntroduced by Legislators Puespect, Blass, F: ley, Rosso, Caracappa, Giese, Allg:
4 Richards, Wehrenberg, Rizzo, Nolan, Hariton, Noto, Howard, LaBua, Davine, Mrazek RESOLUTION NO. 457 - 1982, ACTIORIIIN3 TEE CLERK OF THE LEGISLATURE TO SIND A E3ME RULE MESSAGE FROM THE COUNTY OF S3FFOLK TO THE GOVERNOR AND THE LEGISLATURE CF THE STACE OF
- NEW YORK IN FORMAL PROTEST OF THE NIW YORK STATE DISASTER PREPARE 0 NESS COMMISSION'S CSURP ATION OF SUFFOLK COUNTY'S AUTHORITY TO RESPONSIBLY DEVELOP ITS RADIOLOGICAL EMERGENCY RE!?OUSE PLAN
, WHEREAS, Suffolk County adopted resolution 262-82 which directed th l Suffolk County Planning Department to prepara a county-wide Radiologica l
i Emargency Response Plan and appropriated fcnfs for said purpose; and l WHEREAS,' Suffolk County, to further its svern duty to protect the healt
- and safety of the people of Suffolk Cou
- ty, has cc:missioned studies t datermine all planning facets that are essential in developing a viabl Radiological Emergency Response Plan; and WHEREAS, Suffolk County resolution 262-32 declared, as official count policy, that any Radiological Emergency Response p,roposal developed by th
- Suffolk County Planning Department, shall ct be deemed adequate and shall ne b3 implemented unless and until in has been approved Ty the County Legislatur-and the County Executive; and WHEREAS, the Long Island Lighting Company has, in a direct affront to th govs.nment and the people of Suffolk Cou
- ty, submitted emergency plannin resource. material, developed, in part, by county personnel, to the New Yor.
- Stnte Disaster Preparedness Commission and has characterized that material a
, tha complete, draft Suffolk County Radiological Emergency Respense Plan; now therefore, be it RESOLVED, that the County of Suffolk officially again confirms ant dcclares that the planning resource material submitted to the New York Stat-Disaster Preparedness Commission by the Lo:g Island Lighting Company in no wa:
constitutes the County's Radiological Emerge:cy Response Plan; and be it furthe; RESOLVED, that the County of Suffolk hereby notifies the Governor of th State of New York, the New York State Disaster Preparedness Commission, and th' Nsw York State Legislature,- that is vehemently oppcsed to any action by New Yor State that would treat in any way, the docunents subnitted by LILCO as th County's radiologic'al emergency response plan or any other official Count document; and be it 'further RESOLVED, that any action of agencies or departments of New York State t rcview, svaluate, approve, or in any other way consider the documents submitte by LILCO will be an hault to the people of Suffolk County and an affront to th current good faith program of Suffolk County to prepara a radiological emergene plcn which protects the health and safety .of the citizens of Suffolk Count,y.
May 18, 1982 DAT APP V D BY:
J Coutui Executive of Suf folk County
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4 Intro. Res. No. Laid on Table 9/28/82 ,
Introduced tur Deputy Presiding Officer '
r Wehrenberg, and Legislators Caracappa, Howard, Rizzo, Blass and Prospect RESOLUTION NO. -1982, ACCEPTING THE REPORT AND RECOMMENDATIONS OF SPECIAL COUNSEL AUTHORIZED BY RESOLUTION NO. 455-1982 CONCERNING CERTAIN ACTIONS OF THE '
{y)e LONG ISLAND LIGHTING COMPANY, AND REAFFIRMING RESOLUTION No. 456-1982 AND
, . RESOLUTION NO. 457-1982.
l WHEREAS, the Suffolk County Legislature and the Executive are concerned with the safety of the Shoreham Nuclear Generating Plant and further concerned with the development of a County ,
Radiological Emergency Response Plan, particularly given the
, unique geographic configuration of Long Island; and WHEREAS, Suffolk County has commisgioned various studies and cuthorized various expenditures of moneys to determine all
- reasonable and essential plans in dealing with the protection and possible evacuation of the population of Suffolk County due to a radiological accident at the Shoreham facility; and WHEREAS, this Legislature has, by Resolution No. 455-1982, cuthorized the appointment of a special Sub-committee of this ,
Legislature, and the appointment of Special Counsel to assist that Sub-committee to investigate the actions of the Long Island
- Lighting Company in submitting a document to the State of New York Disaster Preparedness Commission which purported to be the County's Radiological Emergency Response Plan; and HEREAS, the Special Counsel has submitted his Report to this Legislature under date September 23, 1982, containing certain recommendations which this Legislature has duly considered; and
{. WHEREAS, this Legislature is advised that New York State Law is cuch that before any County Radiological Emergency Response Plan a
is filed with any N.Y. State Agency that this Legislature has a 1
- right and a legal duty to review and approve that document; now, i therefore, be it i
RESOLVED, that the Suffolk County Legislature hereby accepts 1
4 '
the Report and-Recommendations of its Special Counsel, submitted
- . under date September 23, 1982, and be it further l
[ RESOLVED, that the County Legislature hereby eaffirms nd l reasserts its position set out in Resolution No. 4 ' ch ostablished the Radiological Emergency Response Planning Policy of
- Suffolk County, and be it further
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RESOLVED, that the County Legislature hereby reaffirms and reasserts its. position as set out in Resolution No. 457-;82, which
'cuthorized the Clerk of the Legislature to send a Home Rule Massage from the County of Suffolk to the Governor and the Legislature of the State of New York in formal protest of the New York State Disaster Preparedness Commission's usurpation of Suffolk County's authority to responsibly develop its Radiological Emergency Response Plan, and be it further
, RESOLVED, that the Executive and/or the County Attorney is hereby authorized to take any necessary or appropriate action regarding the Long Island Lighting Company's _ action in submitting certain documents to the New York State Disaster Preparedness Commission and representing that material as the Suffolk County Radiological. Emergency Response Plant including transmittal of Complaints, Notices or other appropriate filings.to the County District- Attorney, the United States Attorney, %ew York State cgencies, departments or offices, and federal government agencies, dspartments or offices.
DATED: ,
APPROVED:
County Executive of Suffolk County Date of Approval:
i 1
f
Intro. Res. No. 1196-83 Introduced by Legislators Wehrenberg, Caracappa, D' Andre, Geise, Allgrove, Bachet Prospect, Foley, Nolan, Blass, Rizzo, LaBua, Devine, Hariton, Beck RESOLUTION NO. 111 - 1983, CONSTITUTING THE FINDINGS AND DETERMINATIONS OF SUFFOLK COUNTY ON WHETHER '
A LEVEL OF EMERGENCY PREPAREDNESS 'IO RESPOt*D TO A RADIOLOGICAL ACCIDENT AT THE SHOREHAM NUCLEAR POWER STATION CAN PROTECT THE HEALTJ, WELFARE AND SAFETY OF THE RESIDENTS OF SUFFOLK COUNTY WHEREAS, Suffolk County has a duty under the ConstitutionSuffolk of the State County of N3w York, the New York State Municipal Home Rule Law, and the I
Charter to protect the health, safety, and welfare of the residents of Suffolk
- Countyr and l
' WHEREAS, the Long Island Lighting Company ("LILCO*) is constructing located on and dosires to operate the Shoreham Nuclear Power Station ("Shoreham"),
the north shore of Long Island near the town of Wading River, a location which l
in within the boundaries of Suffolk County; and WHEREAS, a serious nuclear accident at Shoreham could result in the rolcase of significant quantities of radioactive fission products; and WHEREAS,. the release of su'ch radiation would pose a severe hazard to the 1
h0alth, safety, and welfare of Suffolk County residents; and WHEREAS, in recognition of the effects of such potential hazard posed and by Shoreham on the duty of Suffolk County to protect the health, safety, wel is of its citizens, this Legislature on March 23, 1982, adopted Resolution No. _42-1982, which directed that Suffolk County prepare a " County Radiological Emergency Response Plan to serve the. interest of the safety, health, and welfare of the citizens of Suffolk County .."; and WHEREAS, in Resolution 262-1982, the Legislature determined that adequate the plan dcycloped by the County "shall not be operable and shall not be deemed cnd capable of being implemented until .such time as it is approved by the Suffolk County Legislature"; and in adopting Resolution 262-1982, the Legislature found that WHEREAS, (the " original planning earlier planning efforts by LILCO and County plannersbecause they failed to address the pa a") were inadequate failed to account for human
' .aed by conditions on Long Island and furtherand the lessons of the accident at
'neh:vior during a radiological emergency Three Mile Island; and WHEREAS, on March 29, 1982, Peter F. Cohalan, Suffolk County Executive, j
ceting to implement Resolution 262-1982, by ExecutivePlan Order established the i
Emergency Response Steering Committee Suffolk County Radiological
(" Steering committee") and directed it to prepara a County plan for submittal to th3 County Executive and County Legislature; and WHEREAS, the Steering Committee assembled a groupprepara of highly qualified such County and nntionally recognized experts from diverse disciplines to pla and
~
WHEREAS, such highly qualified experts worked in a diligent and
- caccientious effort at a cost in excess of $500,000 to prepare the best
.escible plan for suffolk County, and particularly to ensure thaton such planIsland Long took nto account all particular physical and behavioral conditions
.ha+ 'ffect the adequacy of the emergency response plan; and s
WHEREAS, the analyses, studies, and surveys of such experts included: ,
(a) Detailed analyses of the possible releases of radiation from Shoreham; (b) Detailed analyses of the radiological health consequences of such radiation release on the population of Suffolk County, giventhe
- meterological, demographic, topographical, and other specific l local conditions on Long Island; l
(c) A detailed social survey of Long Island residents to determine and assess their intended behavior in the event of a serious accident at Shoreham; (d) A detailed survey of school bus drivers, volunteer firemen, and certain other emergency response personnel to determine whether emergency personnel intend to report promptly for emergency duties, or instead to unite with their om families, in the event of a serious accident at Shoreham;
! (e) Detailed estimates of the number of persons who would be ordered to evacuate in the event of a serious accident at Shoreham, as well as the number of persons who intend to evacuate voluntarily
]
even if not ordered to do so;
(
(f) Detailed analyses.of the road network in Long Island and the time required to evacuate persons from areas affected by radiation i
releases; (g) Detailed analyses o'f the protective actions available toradiation Suffolk Ccunty residents to evacuate or take shelter from such releases; and (h) Analysis of the lessons learned from the accident at Three Mile Island on local government responsibilities to prepare for a radiological emergency; and ,
'WHEREAS, on May 10, 1982, LILCO, without the approval or State authorization of the Suffolk County- Government, submitted to the -New York "Suffolk County Disaster
! Prcparedness Commisssion ("DPC') two volumes . entitled
~ Radiological Emergency Response Plan" and containing the original planning data, co ~further revised and supplemented by LILCO, and requested radiological the DPC response emergency to review
-cnd approve such LILCO submittal as the local Pl cn for suffolk County; and 456-1982 and 457-1982, the County further WHEREAS, in Resolutions Shoreham and cadressed the matter of preparing for a radiological emergency at cmphasized that: -
l (a) The LILCO-submitted document was not and will not be the County's Radiological Emergency Response Plan; and l
i
l (b) The county's Radiological Emergency Response Planning Policy, as enunciated in Resolution 456-1982, is as follows:
Suffolk County shall not assign funds or personnel tofor test the or 4
implement any radiological emergency response plan Shoreham Nuclear Plant unless that plan has been fully developed to the best of the County's ability.
Suffolk County shall not assign funds or personnel to test or i implement any radiological emergency response plan for the i Shoreham Nuclear Plant unless that plan has been subject of at least two public hearings, one to be held in Riverhead, and one to be held in Hauppauge. l Suffolk County shall not assign funds or personnel to test or implement any radiological emergency response plan for the Shoreham Nuclear Plant unless that plan has been approved, after public hearings, by the Suffolk County Legislature and the County Executive; and WHEREAS, on June 9, 1982, the DPC rejected the LILCO-submitted document
'cr the reason that it was deficient; and WHEREAS, on October 6, 1982, LILCO, again without the approval or l
tuthorization of the Suffolk County Government, submitted to the DPC an amended torsion of the previously submitted LILCO document which had been rejected by l
- h3 DPCs and 1 WHEREAS, on December 2, 1982, the Draft County Radiological Emergency 13 m se Plan authorized by Resolution 262-1982 was submitted to the County M .ature for review and public hearings as specified in Resolutions 262-19,82, 156-1982, and 457-1982; and I
WHEREAS, in January 1983, the Legislature held hearings on the Draft
. :ounty plan, which bearings included:
(a) More than 1,590 pages of transcripts; Detailed written statements and oral testimony of County expert
^
(b) consultants who prepared the Draft County plant (c) Detailed written statements and oral testimony of LILCO officials and expert consultants retained by LILCOr L (d) Detailed written statements and oral testimony of the Suffolk*
County Police Department, the County Health Department,. the County Social Services department, and the County Public Works in Department, all of which would have indispensable roles responding to a radiological emergency at shorehaar Detailed written statements and oral testimony of organizations (e) radiological emergency in Suffolk County concerned with preparedness; and (f) Extensive presentations by h6ndreds of members of the general publier and i
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WHEREAS, members of the Legislature also travelled to and held public carings in the vicinity of the Three Nile Island Nuclear Power Plant to gain nformation on the lessons to be learned by local governments from the accident t Three Mile Island; and ,
WHEREAS, the Draft County plan identifies evacuation and protective '
two primary protective actions which would need to be l holtering as the
! mplamented in the event of a serious accident at Shoreham; and WHEREAS, evacuation of Suffolk County residents in the event of a tdiological emergency could take as much time as 14-30 hours because of various
!cetors, including: the limited number of appropriate evacuation routes in
- uffolk County; difficulties in mobilizing police and other emergency personnel; tifficulties ensuing from spontaneous evacuation of large numbers of County rocidents, thus creating severe traffic congestion; and unavilability of altsrnate evacuation routes for persons residing east of Shoreham and thus the
) an evacuation to pass by the plant and isecosity for such persons during
>occibly through the radioactive plume; and evacuation times in excess of 10 hours1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br /> and certainly WHEREAS,
- will result in virtual wecuation times in the range of 14-30 hours
.mmobilization of evacuation and high exposure of evacuees to radiation such
- htt evacuees' health, safety, and welfare would not be protected; and WHEREAS, protective sheltering is designed to protect persons from.
ixconsive radiation exposure by such persons staying indoors until radiation
<ith the greatest danger to health has passed; and protective sheltering were ordered for Suffolk County WHEREAS, if experienced by
- cf ints, unacceptable radiation exposure would still be rub antial portions of the Suffolk County population, thus making it impossible
.o provide for the health, welfare, and safety of these residents; and submitted by LILCO to the DPC without County WHEREAS, the document actual approval or authorization is deficient and because itondoes behavioral, Long notIsland deal with thewould that be Local conditions, physical ancountered during a serious nuclear accident at Shoreham; and submitted by LILCO to the DPC without County WHEREAS, the document approval or authorization does not ensure that effective protective action by i
percens subject to radiation exposure, in the form of evacuation or sheltering, would be taken in event of a serious nuclear accident at Shoreham, and thus such Socument, even if implemented, would not protect the health, safety, and welfare i of Suffolk County residents; and .
WHEREAS, the extensive data which the Legislature has considered make clocr that the site-specific circumstances and actual local conditions existing which on Long Island, particularly its elongated east / west configuration
- rcquires all evacuation routes from locations east of the plant to pass within a zona of predicted high radiation, the ineffectiveness of protective sheltering, complete the severe traffic congestion likely to be experienced if a in ensuring partial or that emergency l
svacuation were ordered, and the difficulties any emergency porconnel will promptly report for emergency duties, preclude recponse plan, i.f implemented, from providing adequate preparedness to protect be thy salth, welfare, and safety of Suffolk County residents; now, therefore, 1 it I
1
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RESOLVED, tiiat the araft County ' plan submitten to the County Legislature n December 2,1982, if implemented, would not protect the health, welfare, and
.cfoty of Suffolk County residents and thus is not approved and will not be
.mpicmented; and be it further
, RESOLVED, that the document submitted by LILCO to the DPC without the health,
- ounty approval or authorization, if implemented, would not protect the i elfere, and safety of Suffolk residents and thus will not be approved and will iot be implemented; and be it further RESOLVED, that since no local radiological emergency response plan for a scricus nuclear accident at shoreham will protect the health, welfare, and safcty of Suffolk County residents, and since the preparation and implementation i
>f any such plan would be misleading to the public by indicating to County 1 ocidents that their health, welfare, and safety are being protected when, in icct, such is not the case, the County's radiological emergency planning process
.o hereby , terminated, and no local radiological emergency plan for response to in cccident at the shoreham plant shall be adopted or implemented; and be it 2
further RESOLVED, that since no radiological emergency plan no canradiological protect the accith, welfare, safety of Suffolk County residents and, since smergency plan shall be . adopted or implemented by Suffolk County, the County necessary to assure that txecutive is hereby directed to take all actions acticas taken by any other governmental agency, be it State or Federal, are
- onaistent with the decisions mandated by this Resolution.
2ATED: February 17, 1983 APP BY:
?! !&:
- Countf Executive of Suffolk County Date of Approval:
J43/73 O
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i
.. . . . == .- . u . .=. ..: .- j Intro. Res. No.
Introduced by the Presiding Officer at the request of the-County Executive I RESOLUTION NO. -1984, TRANSFERRING FUNDS IN CONNECTION WITH THE COUNTY'S INTERVENTION IN THE OPERATING LICENSING PROCEDURES BEFORE THE NUCLEAR REGULATORY COMMISSION AND TO l OETERMINE THE PRUDENCY OF THE COST OVERRUNS AT SHOREHAM 1
)
WHEREAS, the Legislature has, by Resolution No. 111-1983, determined that no Radiological Emergency Response Plan for a nuclear accident at Shoreham will protect the health, welfare, and safety of Suf folk County residents; and WHEREAS, the result of such County determination means that the Shoreham facility shall not operate and must be abandoned; and WHEREAS, by that same resolution, the Legislature directed the County Executive to take all actions necessary to assure that actions taken by any other governmental agency are consistent with the decisions mandated by Resolution No. 111-1983; and WHEREAS, Suffolk County continues to absolutely oppose the licensing or operation of the Shoreham Nuclear Power Station; and WHEREAS, the Legislature has, by Resolution No. 111-1983, declared that the Long Island Lighting Company must not be permitted to provide or in anyway benefit from the company's mismanagement and misprudence in tonstructing the Shoreham facility; and
- WHEREAS, the Legislature has, by Resolution No. 731-1983, authorizing the County Attorney to intervene on behalf of Suffolk County to determine the prudency of the cost overruns at Shorehaar and further authorizing the County Executive to procure the services of such consultants and experts as are necessary; and ,
WHEREAS, in the last several months the County, largely due to '
offorts precipitated by the Long Island Lighting Company, has been forced to increase sharply the commitment of manpower and resources to the Shoreham offort which has led to the expenditure of almost all the monies appropriated in the 1984 Budget for that purposer and WHEREAS, there are sufficient unappropriated unencumbered funds in the 1984 Operating Budget to cover the additional costs necessitated by recent cvents concerning the Shoreham issuer now, therefore, be it m
7
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- 2-RESOLVED, that the County Comptroller and the County Treasurer be, and they hereby are directed to transfer the following funds and authorization:
FROM E AMOUNT MCTA-Aid to Long Island Railroad Department of Law Contract Services 01-5640-495- 01-1420-456 $ 900,00C P1anning: Omnibus Department of-Law Contract Services 01-5631-409 01-1420-456 3 100,00(
Employee Benefits - Department of Law Retirement Contract Services 01-9010-828 01-1420-456 8 100,00(
4 Employee Benefits - Department of Law s.
- Social Security Contract Services i
01-9030-833 ._
01-1420-456 3 225,00C Employee Benefits - Department of Law Health Insurance -
Contract Services 01-9060-836 01-1420-458 $ 175,000 DATED:
APPROVED BY:
County Executive of Suffolk County.
Date of. Approval:
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2 MR. LANPHER: Judge Laurenson, am I correct that 3
the asserted date is December 20th? That was my recollection l 4 from the. earlier discussion by Mr. Irwin.
5 JUDGE LAURENSON: That was the summary, as I l
6 '
recall, wasn't it? Or did I misunderstand?
7 MR. IRWIN: That's correct. What we are going to 8
put out before Christmas, and I have heard the date December 20 9 mentioned. I repeat, it is a substantively complete synopsis, 10 precis, advance look, whatever you want to call it, of the 11 document, with the mechanical reproduction of the actual 12 document as soon thereaf ter as possible.
13 Let me just look over to John Weismantle and make~
14 sure that's correct. That is substantively correct.
15 JUDGE LAURENSON: All right.
16 MR. LANPHER: Thank you.
17 JUDGE LAURENSON: Turning next to the pending motion s 18 which we have before us concerning role conflict, Contention 23, 19 there is good news and bad news for everybody. The news is 20 that all the motions are granted. I will go through them 21 one by one, add tell you why they are granted, and what our M ruling is.
23 The first motion is LILCO's Motion to Strike the 24 Testimony of the Teachers. We find that the proposed testimony
(
l-)1 25 of the teachers is not relevant evidence under Rule 401 of a
1
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791 gi 18 : 3 I the Federal Rules of Civil Procedure, because it does not 2
have probative value to establish that the facts asserted 3
taorein are more probable than they would be without the 4
j evidence. -
5 Furthermore, to the extent that there is any 6
relevance to that testimony, we find that it would be excluded I
l under Rule 403 which provides that even though evidence may 8
be relevant, it may be excluded because of considerations 8
of undue delay, waste of time, or needless presentation of to cumulative evidence.
11 There is a cumulative nature of the evidenc'e betweer 12 the testimony of the school teachers and some of that offered 13 by the school administratces.
14 So that motion, as far as Motion to Strike is 15 l
concerned, will ba granted. Of course, there is then no reasor is to rule on the MJtion for Discovery and Rebuttal.
I Turning to the secortd LILCO Motion for Discovery 18 and Rebuttal Concerning the School Administrators, the Board 8
feels very strongly that the purpose of the discovery rule at the NRC is so that at a bare minimum, all parties should be 21 l
able, if they are diligent, to learn the identity of the 22 witnesses who will be testifying against them and what those 23 witnesses will say.
24 We find that the County has not given LILCO the 25 opportunity to do that in this case and for that reason we will
- . . . .. - w. - -~ _ _ _ _ _ - . . ~ .
1 taki 18:4 intervene and we will grant LILCO's request with some 2
modification on the relief that they have requested.
3 Specifically, on page 3, they have asked that they be given 4
an opportunity to depose the witnesses as soon as possible, 5 .
and they have set a date in there.
6 We will allow the parties to set their own date 7
and to work that out, but the Order to Depose the Witnesses 8 will be granted.
9 Secondly, they requested that the County amend its 10 responses to the Document Request of Interrogatories. That 11 will also be granted.
12 Finally, they asked that LILCO be allowed to file 13 rebuttal testimony at the close of the litigation of Group I k 14 issues, if necessary, to respond to this testimony. We will 15 modify that by saying that within two weeks after the completie n 16 of the depositions of these witnesses, LILCO may file rebuttal 17 testimony along with a Motion to Show Cause as to why it is 18 necessary and why it should be received.
19 So we're not going to give a blanket permission to 20 file.
They will have to establish a basis for doing that.
21
,So the second motion is granted.
22 The NRC Staff motion concerning the testimony of 23 S teven Cole on behalf of the County, concerning volunteer 24 firemen, is also granted. That testimony will be stricken as I
h 25 being irrelevant.
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i Finally, the suffolk County motion, they have 2 filed Parts 1, 2, 3, 4, and 6.
Part of 6 deals with 3 Contention 25, to the extent that they are st iking the 4
testimony of Witness Cordaro. All of those requests will be 5
granted, again on the basis of relevant testimony.
6 Is there anything further that anyone has by way 7
of new business before we conclude the Conference of Counsel 8 this afternoon?
9 (No response.)
10 At this point, then, we will be adjourned. We'll 11 see you all at Hauppauge next Tuesday morning.
12 (Whereupon, at 3:30 p.m. the conference ~was 13 adjourned.) '"
(_) 14 15 '
16 17 18 19 20 s
21 22 23 24 I M
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Cord:roatal.,ff.Tr.831j In the second place, familiarity with emergency re-sponse is a regular part of employment with LILCO in view of the nature of our business, which must j
...I cope with, for example, equipment. malfunctions, hurricanes, and ice storms. Our major emergencies generally cover time periods in excess of 12 or 16
. 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br />, and our employees are accustomed to the idea l that they may be called for emergency duty at any time, t
In the third place, where LERO is concerned the iI.l
- 4 LILCO Transition Plan and procedures clearly set !!
N out the emergency organization and the personnel h requested to respond. LERO training further -
clarifies and defines emergency roles and empha- 3 sizes their importance.
Also, LILCO is preparing a brochure for the fami-t lies of the LERO workers. This brochure will help l
to make both the workers and their families aware of the importance of their emergency roles.
s
- 15. Q. Is there anything special about emergency situa-tions that might alleviate role strain?
A. [ Dynes, Mileti] The absence of evidence of persons abandoning emergency roles over a wide range of
,I i
emergency events in the past suggests that there EE are certain structural changes in the ccmmunity during emergencies that reduce role strain. Role .
obligations are based on values and, during "nor-a mal" times, people expend effort on achieving many different values, some potentially contradictory.
An emergency changes this process dramatically, be-cause in an emergency some values become clearly more important than others.
This phenomenon is the development of what has been called the " emergency consensus."
In this consen-sus, protection for threatened people has the high
est priority.
Conversely, other traditional values for example, making money and enjoying leisure activities -- become drastically less important.
This temporary shift in values simplifies the role obligations of people -- some of their roles become more important while others are not important at all, preventing potential role strain and releasing people to concentrate on the critical tasks of the emergency.
Those with emergency roles will fulfill them, rather than ignore the emergency in order to fulfill family obligations. The value priorities in an emergency thus simplify, rather than aggravate, role strain for community members.
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L6. Q. Eow does the " emergency consensus" affect emergency 1
workers in particular? I A. [ Dynes, Miletij The emergency consensus enhances the responsibility.of those in emergency organiza-
~
t1ons. Those individuals who work for organica-tions that hi-e, emergency responsibilities have clear er.pectations of what their appropriate behav-ior should be in such situatiens.
- 17. Q. Does knowing his role in advance allow the emergen-cy worker to better prepare for an emergency?
A. (Dynes, Mileti) Yes. Knowing his role prior to an emergency allows an emergency worker to make family "
l contingency plans. (For example, he can plan so
- that the same child-care arrangements will be con-i tinued; so that relatives or neighbors will assume responsibility; so that wives are competent to deal with.the situation; and so forth.)
- 18. Q. Are LERO workers instructed to plan for their fami-lies?.
A. (Cordaro, Weismantle] Yes. The LERO emergency worker family brochure, mentioned above, will ad-vise the workers to make personal plans for the I
......q....
. . :- . u .
l l
/ l
- 29. .
Wouldyouexpectthatsomeofthevolug[eerswould NEWh be local government employees such as police offi-cars? [,
- % g ,j 7 .. l A. [ es, Mileti] .Yes. l 1
- 30. Q. Are u familiar with Suffolk ounty Resolution No.
! 111-19 ?
A. (Dynes, M1 eti) Yes. A opy of the resolution is attached to is testim y (Attachment 7).
- 31. Q. Assuming that is re olution forbids Suffolk Coun-ty personnel from t ing part in an emergency re-sponse, what woul e its effect on Suffolk County ,.
I employees such a pol ce officers if there were a l
radiological e ergency t Shoreham?
A. [ Dynes, Mil 1] People wh are trained emergency workers do emergency work i emergencies. Police
/
officers would do police work f there were an emerge cy at Shoreham, firemen bould do their jobs,
\
and so on. A law will not keep phqple who have t /. s i
i s de cated their lives to providing public safety f om providing public safety when an amergency oc-
/
, curs.
t mig -
i
-% . - ~ -
~
- ..-.=:.: -. . ~ . - _
I What is likely, however, is that anyone who at-O tempted to keep workers like police from -
f participating in a real emergency would become the ,,
- ) -
l target of public outcry.
- 32. Q. In their draft emergency plan of November 1982,
( .
Suffolk County's consultants proposed assembling a team of specially recruited, trained, and motivated
" emergency response drivers" to drive evacuation buses. What do you think of this suggestion?
A. (Dynes, Mileti, Sorensen] Assembling specially re-cruited, trained, and motivated drivers to drive ;
evacuation buses is exactly what LILCO has done.
These "special" drivers are part of the Local Emer-gency Response organization that LILCO has put to-gather. With adequate training, the ability to un-derstand risk, and a means to know that their family's safety is not a problem, these bus drivers !
l w'ill drive the evacuation buses.
Th,is specially assembled team, however, is only a good idea insofar as it is part of LERO. It would be a foolish idea to provide such a team if emer-gency response were being addressed by local gov-ernment organizations. In that case, it would be l
l
~" _._
...:-...=.--. .ui. _ ; .- _ ,._,_
p 843 1:5 ,
{
h k, to me. When this assignment became evident, I named 2 Mr. Weismantle to head that organization.
3 Q You state in your testimony on page 3 of your d testimony --
5 JUDGE LAURENSON: Excuse me for interrupting.
6 Perhaps you weren't here, ma'am, when we made the announcemer 7 we don't allow smoking or eating in the hearing room. This e in true for the whole room.
9 BY MS. LETSCHE:
10 Q You state on pages 2 and 3 of your testimony, il Mr. Cordaro, that your role in emergency planning for Shorehar
~
12 is to ensure that the needs and requirements of emergency-13 planning are being met. -
Id What experience do you have personally in dealing 15 with radiological emergency at a nuclear power plant?
16 A. (Wit' ness Cardero) I've been involved in various
! 17 ways in emergency planning for some 15 years. Initially, in e
{
18 when Shoreham was in the construction permit licensing stage, I
I' I did review and contribute to sections of the preliminary f
j 20 safety analysis report on emergency planning. I did provide 21 some te'stimony, not a significant amount in those days, in
.]
22 construction permit hearings, in the NEPA phase of the
'l l
23 hearing, addressing emergency planning issues. I did get 24 involved from an emergency planning basis on the siteing of 25 Shoreham, looking at 10 CFR 100 issues, whether indeed the l
-_ . j
u....=.: .w ..+-aw. :L= = - - '
844 gi 7:6 ,
hf I plant would meet the siteing criteria, dose levels. I did
? perform independent calculations on the transport time 3
distribution of radiological accidents and what their imoa,c' d
health-wise would be very early on in the project itself. :
5 did teach a graduate course at New York Polytechnic Institut 6
which had, as one of its concepts, and addressed the technic 7
factors associated with emergency planning.
8 I am the Chairman of the Atomic Industrial Forum 9
Technical Advisory Group for the National Environmental 10 Studies Project,which is right now carrying on a study of Il emergency planning, evacuation sheltering, and technical 12 factors associated with that.
13 I have interfaced with Federal, State, loc $1 14 regulatory bodies and governmental bodies in emergency planc 15 for some 15 years, and have testified in many proceedings c l 16 emergency planning.
l 17 Q Perhaps my question wasn't clear, Mr. Cordaro.
e 18 a
Could you please describe what, if any, personal experience 19
?
you have in dealing with an actual radiological emergency?
20 A Oh, actual. Excuse me, I'm sorry.
l 21 I I have not ever participated and responded to an 22 i actual radiological emergency.
I 23 l Q Thank you.
24 You also state in your testimony that one of your 25 roles is to make sure that the technical direction and conte I
-e -P *
~ '
_.-- - . - . - . .: -.==
937 i 15:11 1
these people the ability to understand risks? -
l 2 A The training films,,some of the training films.
l 3 I see.
Q d What is it in the training films that gives these ;
5 people this ability, in your opinion? !
6 A Gives them --
7 Q The ability to understand risks that you ref'erenced 8
in your testimony.
A What in the training films gives them the ability?
10 I don't think their abilities come from the. films per se, but 31 it comes fromthe educational process that they're going throug i 12 in receiving that information.
'3 Q Are you saying that this training that the bus N 'd drivers are going to get is different from education that I
35 a might be given to the public by LILCO?
5 i 16 A It is based upon my recollection of the kinds of
$ 17 knowledge that the public generally receives about radiologica S
la j emergencies.
Yes. The answer is yes.
20 Q a Have you seen the public education m'terials that f
21 LILCO is proposing to send out to the public?
22
! A Yes, I have.
5 23 Q And your answer is based on an understanding that 24 the bus drivers get something different from what the public 25 is going to get. Is that right?
~ ..7,.y,.
___ _ _ _ _ _ ..: - .. -- - .. ,l 939 g15:13 I l 'l Q Dr. Sorensen, that sentence that we've been 2 talking about in your testimony, let me read it so we're all gg 3 on the same wavelength. It says, "With adequate training, 4 the ability to understand risk and a means to know that their 5 family's safety is not a problem, these bus drivers will drive o the evacuation buses."
7 Now, on what do you base your conclusion that, 8 assuming all these preconditions you have in this sentence are 9 met, that the bus drivers will drive the buses? What do you 10 base that on?
11 A (Witness Sorensen) Wdll, we base it on our knowledg a 12 of conditions that lead to role strain and possible but
~
13 unlikely role abandonment, and we know that there are certain 4 )
14 things that can be done to reduce role strain and possibly 15 eliminate role abandoment. And these things, based upon our 16 understanding of the situation, include training, as we l
! l'7 mentioned, training which will formalize in the minds of the 1
18 workers what their role is during an emergency.
1 19 We know that perception of risk, as suggested by 20 a variety of sources, may play a role in how anyone responds 21 in an emerg'ency. With accurate perceptions of risk, it's s
l
}
22 possible to eliminate some of the kinds of uncertainties and 23 misinformation that people have about a particular hazard or 24 kind of potential risk. And third of all, we know that 25 uncertainty may lead to role strain, and we know that by 6
l i
-)
m , , --m
mmmm i m u 1110
- 11 :11 :
1 For emergency workers, for example, te key factor l l l
2 is whether or not there is a good deal of certainty about ;
3 their emergency role. One way they can gain that certainty ,
.J 4 is through training. l 5 BY MS. LETSCHE: ,
6 C Mr. Johnson, on page 87 of your testimony, would ;
i 7 you t' urn to that page please, the paragraph headed " Third"? -
8 A (Witness Johnson) I see that paragraph.
9 Q You state there that a plan is primarily composed to of the actions of organizations, not individual persons . I 11 assume you are referring there .o a written plan; is that 12 right? l 13 A Let me refresh myself in terms of the testimony, if' l I 14 I~might.
is (Pause.)
i- 16 gEnd 11 I 17
, is , i I I l 19 l l '
j 20 t
l 21
- g 22 23 24 25 I .
i
L: =.-. : .. - . = . = . . . . -
1150 '
ilD6 i
i with is to look at the way in which people function in i
2 organizations, because organizations are essentially the 3 units which respond in. emergencies.
4 A (Witness Mileti) I would add that, based on the -
5 research I have observed, and my opinion of what is 6 significant again, is whether or not a human being who is 7 supposed to do emergency work has a clear understanding of 8 their role in the emergency. To my way of thinking, I 9 don't think difference than, for example, in their sex, et 10 cetera, will make a difference in terms of altering the il effect of that factor on their performing in an emergency 12 role.
13 Q Dr. Dynes again, on page 28 of the testimony, j l 14 you were questioned quite a while on the statement there, the is basis of your statement that there have been problems created jg to by loss of personnel, have not been evident in other emergenc3 17 situations. What do you mean by other emergency situations?
O l 18 And what is your basis for it?
I 19 A (Witness Dynes) Well, there is a very large I
g 20 research tradition of work that has been done, plus my own
=
l 21 personal experience in research for the last 20 years.
I '
g s 22 O You were asked, several times, if such and such 8
23 a conclusion depended only on information from the Disaster 24 Research Center at Ohio State?
25 A No.
f
. _ . = . ~ . . - . . . - . - . .. .- - --
r -
~ 1972 l t
g release from and during an accident?
2 A. (Cordaro) I am not aware of any 3 formal agreement or understanding we have with the 4 county which says that they would coo rd ina te their -"
5 ef fo rts. ,
l 6 That's pretty much due to'the f ac t 7 that we ha e this what I call an aca emic
/
8 situation he e, where our plan has do stand on its 9 own and the e unty has contended hat it will not 10 participate in y way. /
~
11 Now, n the real/ orld, if this goes p
/
12 forth and a plan is pproved and an accident does ,
13 indeed take place, or la9t gets a license to 14 operate or when the pla' gets a license to
/
-15 operate, I fully expec t at the county will 15 realize what the sit ation sis and cooperate.
/ \
17 They ahe aware o.f problems in news
\
18 dissemination and. the difficulties that can '
19 develop. They were involved or inally in the 2,0 planning process that developed things like news
\
21 centers, when they were cooperating with us in the
- 22 development of the plan.
23 So they are fully aware of the 24 difficulties involved and I assume they we,uld 25 coop ra te .i n t anderstand.
. _ __ _ .. ........__i___ - . . -
m---
g .
- i 1973 1 I act, we have made' provisions at 4 2 the news center to ac , date county personnel 3 who would show u[ an parti te in the news 4 dissemipation process. N !
5 MR. McMURRAY: Judge Laurenson, I 5 would like to move to strike all portions of Dr.
7 Cordaro's answer that speculate on what the county 8 may or may not do if the plant is licensed, as 9 pure speculation. It is also not responsive to 10 Judge Kline's question.
11 MR. CHRISTMAN: I think it was 12 responsive. k 13 JUDGE LAURENSON: That request to \
14 strike will be granted. The answer will stand 15 insofar as as it replies to the question whether 16 there is any agreement between county and Lilco l
i 17 concerning the news center. !
18 BY JUDGE KLINE:
19 Q. Dr. Mileti, based on general 20' experience with the behavior of news people, do !
I t
21 you think it likely that news people would press l l
22 county officials for information outside of the i i
23 news center?
24 A. (Mileti) In an actual emergency?
25 Q. Yes, e'
4 l
I 2035 i
and come up with l
, 1 --
arrive at a conclusion that l 2
information is confusing or conflicting. It has 3
to be caken in the larger context of the entire 4 message.
! 5 Q. Mr. Weismantle, on Wednesday you I 5
testified that your emergency news center, or ENC, L 7 is no different from others. Do you remember G saying something like that?
9 A. (Weismantle) Yes, I do.
10 Q. Are there any differences at all 11 between yours and others?
12 A. (Weismantle) Yes. What I meant was l I 13 conceptually it is no different in that the same I 14 organizations have space as they do at other 15 places and there are provisions for the press and l 16 other media, and so forth.
17 l But qualitatively we think our new 18 center is superior to almost all others, or all 19 others we are aware of.
s Again it has space fo r 20
! 400 media, it is in a modern facility, well 21 equipped with phones, typewriters, telecopier 22 machines, and so forth for the press to use. It 23 has provisions fo r television coverage there. It
'l I
24 has more than adequate space for the types of 25 representatives that will be there from other l
l . _ . -
2016l 1
o rg ani za t ions who might be participating in the l i
2 emergency response.
3 So I didn't mean by my statement that 4 it was identical in all respects. I only meant 5
that it was identical conceptually, which is the l 6
important point, but in particular I think we have 7
gone to great length to provide a first rate, top 8 flight facility for the media.
9 Q. Also on Wednesday, Mr. Weismantle, 10 you were asked about what would happen if there 11 were differences of opinion about emergency 12 information among LERO officials and other ..
13 i agencies that might be involved in the response.
14 Do you remember that testimony?
15 A. (Weismantle) Yes, I do.
I 16 Q. Is there a process for resolving such l
17 differences? l 18 (Weismantle) There is a process for A.
s 19 identifying the differences, for trying to work !
20 out resolutions, and if resolutions can't be 21 I worked out, through discussions the various i i
22 representatives of the organizations who might '
i 23 have disagreements for identifying those !
, 24 disagreements in a public forum, that is, in the 25 form of the ENC to the press through press
7 20G4 .
s l
was discussed this morning, to come to the news g
center to cooperate in issuing EBS messages.
2 Do you think you need an agreement 3 '"
for that purpose? '
, a hink l
5 A. (Cordaro) I don' t think so. I l ng of 6 m response was premised on an understan the county's expression that they are equired by 1
rotect the public health a safety in the 8 law to inclu ng a nuclear 9 event of n,y catastrophe, d actively, by law, 10 power a c c i d e n'(, that they wo' become involv ed 'in that cp astrophe and do 11
/
12 anything they can to r eA po nd to that incident. ..,
/
13 That woit'1[!\ n e l ud e being involved in 14 proper news diss 'i n a t i o n .
0 place that hey would have access 15 1 to all the a,p p r o p r i a t e informac on is at the news l 16 i f
' / S I suppose that (
17 center, the joint news center.
l 18 they de. finitely would participate in the news ,
i 19 centerr activities.
j 20 MR. McMURRAY: Judge Laurenson, I 21 would like to move that that answer be stricken 22 from the record. Dr. Cordaro has speculated about l
23 what the county might or might not do in the event 1 j
24 of emergency. He has no basis for that statement.
25 Therefore, it should be stricken.
.s i
2065 j i
j 1
MR. CHRISTMAN: I would like to be i j
l 2 heard on that.
3 JUDGE LAURENSON: Go ahead.
4 MR. CHRISTMAN: I think if we strike ,
5 that sort of evidence, we are at the same time .
6 letting in evidence, which was let in today, about the county not participating. I think we are 7
8 letting in evidence on one side of the issue and 9 risking getting error into the record.
10 Second, I don' t think the premise of 11 these proceedings is that we can ig no r e what would 12 happen in the real world based on an artificial .
I 13 premise because of a present political or legal 14 position. Where there is testimony that something f
15 will happen in a real emergency in the real world, 15 that testimony should be listened to and included.
17 If the county thinks that's not what 19 they think will happen, they can present evidence 19 on that. .
s 20 Their legal position in the pleadings 21 is not necessarily the same as what m ig h t really we 22 occur in a real radiological emergency, which 23 have heard a lot of testimony on, is situational.
i N) 24 MR. McMURRAY: As I have said all 25 along, this whata acaraadina la premised on the
2066 ,
i 1 Lilco transition plan. Now the county is not 2 participating in the Lilco transition plan. The 3 Lilco transition plan is something that is to be 4 implemented by the LERO organization.
I 5 The board struck other parts of Lilco's l 6 other plans that had anything to do with 7 governmental participation. LERO is the 9 organization that is supposed to implement this 9 plan, and speculation about the county's 10 participation is just that, speculation.
11 (There was a pause in the proceeding.)
12 JUDGE LAURENSON: The county's motion
- g 13 is granted. That response will be stricken.
14 MR. CHRISTMAN: Well, with that I have ,
i 15 no further questions. !
l 16 JUDGE LAURENSON: Any recross-examination l I
i 17 by the NRC staff? '
18 MR. REPKA: None by the staff.
19 -
JUDGE LAURENSON: Anything for FEMA? I
~
l i
20 MR. GLASS: None. ;
21 MR. McMURRAY: May I have a few 22 minutes so ! can review my notes?
I 23 TUDGE LAURENSON: How much time do you 24 need?
25 wR. McMURRAY: About ten minutes.
, _ _lu. -.;._ --
l
~
l 1
2159 1
1 A. What we have generally found is that i ggd 2 workers who are emergency workers on a regular i 3
basis, police, fire, traffic control, these types 4
of people need much less training and it is much ' ' '
5 less of a question of them automatically 6 responding to all types of emergencies.
7 The differentiat' ion we try to make is I
8 individuals who take on emergency responsibilities 9
only after specific incidents need more training 10 and more education.
11 0 So would you say that if you are 12 relying on people who don't do emergency response ,
() 13 as an e v e r yd a y thing, that would mean that 14 training becomes that much more important?
15 A. Definitely. i l
15 Q. You talk about your and FEMA's t
i 17 experience with agencies like the Red Cross and !
i 18 the Salvation Army. I I would like to talk a little 19 bit about the Red Cross. I 20 In your experience, or FEMA's, are f
21 the Red Cross personnel trained for their jobs, 22 their emergency response jobs?
23 A. Yes. 1 l
l '
gg 24 Q. Is the training good?
25 A. Yes.
i
'll 2240
.b5 i Albany,-New York, zip number 1224.
2 I have duly served my notice of appearance on all 3 the interested parties, and I submit the original to the 4 Board, with the certification of service.
5 The Governor wishes to thank Judge Laurenson for 6 inviting the state to participate in this proceeding. The 7 state of New York opposes LILCO's Shoreham offsite emergency a evacuation plan because L LCO lacks the legal authority 9 to implement the plan for the reasons outlined in Contentions to 1 through 10. Moreover, and with due deference to this Board, n it is the position of the state that this Board does not 12 have the jurisdiction to rule on those contentions. And if is the Board rules on them, it would violate the rights reserved" 14 to the state under the 10th Amendment of the Federal 15 Constitution.
l 16 If LILCO desires to challenge the state's position,
! 17 they must do so in a state court in an appropriate judicial
! is proceeding.
i 19 The state also objects to the plan because it is l
j 20 not adequate and not implementable. And therefore, cannot I
21 assure reasonable protection of the public, in the event of I
[ 22 a nuclear accident, for other reasons which will be established i
l 23 by the state in this proceeding.
24 The state is aware of the rule that it must take 25 this proceedings as it finds it, in the absence of good cause. i I
- ~ - - -
l Cordaro et al. (Cont. 65n),
l i
ff. Tr. 2,337 l
i I
) i. \ \
l
{- d Agency Est. Time (Hrs. - Min.)
WSA SCPD 3 - 05 5 - 35 PRCV [10-mile EPZ} 5 - 45 19.
Q. summarized How do these results of these157compare with those yo in response to Question A.
[Lieberman]
The comparable estimates obtained by KLD for the summertime population are 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br /> 55nutes mi for a planned evacuation and 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br /> 10 minutes f or uncontrolled evacuation.
These estimates of evacua-tion times agree closely with the SCPD and PRCV esti-mates and, in fact, s.
bracket those estimates.
g 20.
Q. How do the evacuation time estimateJ other nuclear facilities?EPZ compare with the or evacuation A.
[Lieberman) \
l A convenient source of information about evacuation time estimates for other nuclear power plants is an NRC publication entitled "An Analysis of Evacuation Time Estimates Around 52 er Nuclear Po I Plant Sites," NUREG/CR-1856, May 1981 1 Table 8 of that document presents information of the em an di evac-untion times, by 90* sector, as a function of the sec-tor population being evacuated.
These data were com-pared to the sector evacuation time estimates for th e Shoreham facility -- sector evacuation time s were selected for comparison, because they avoid the
problems of comparing EPZs with different, geographical configurations, for example, plants that require a 360* area to be evacuated, and plants, like Shoreham, I that require far less than a 360* evacuation. The 1
l results of this comparison are displayed in Attachment 7 hereto -- results are presented for the Shoreham Eastern, Central and Western sectors (SNPS E, SNPS C and SNPS W, respectively). A review of this Attach-ment shows that the sector evacuation times for Shoreham are comparable to the median evacuation times presented in NUREG/CR-1856.
s.
I Contention 65.A.
- 21. Q. How is " mobilization" defined in the LILCO Transition i '
Plan?
l A. (Lieberman) Mobilization time within the context of i the LILCO Transition Plan is defined as the elapsed time between the issuance of the notice to evacuate and the time that the first person within the EPZ begins an evacuation journey from a home or place of business to a location outside the EPZ. Thus no evac-untion activity is assumed to take place during the mobilization period. The twenty-minute mobilization )
1 jgg period assumed in LILCo's model runs reflects the fact
_ ~
8787 p
pil-Suey practice when making a recommendation you take many facts 2 into account, considering the conditions of the plant, 3 the conditions of the safety systems, weather conditions, 4 and probably ten, fifteen, twdnty other factors.
5 We start from the EPA protective action guidelines 6 which talk about the number of one to five whole body expo-7 sure where you consider making an action. Then, based on a other considerations and the conditions, we would consider 9 numbers less than that. We would consider the more radio-10 sensitive population such as pregnant women and young children .
ii But that's not just if constraints exist. We just look at 12 all the conditions and then make a recommendation based on 13 that.
- 14 (Witness Cordaro) If you note, on the top of 15 Page 44 in the category for whole body less than one and 16 thyroid less than five rem, which is I believe the range 37 you were referring to, that is doses below the PAGs, in is the Recommended Actions column, it says: No planned protective ig action. But you note that there is a Footnote B to that.
20 And Footnote B reads: At the time of the incident, 21 officials may implement low-impact protective actions in keep-22 ing with the principle of maintaining radiation exposure as 23 low as reasonably achievable.
24 And that may mean sheltering.
25 MS. LETSCHE: Judge Laurenson, I would like to i
- - . . . - . . . . .. L. . . _
_ _ , ,3_ ;_.
8788
- 17-12-Sye move to strike Mr. Miele's answer. The question that was on 2
the table was what are the guidelines on Pages 43 and 44-of 3 OPIP 3.6.1 that indicate how it is to be determined that 4
selective sheltering would be'-- or sheltering would be 5
advisable for radiosensitive individuals.
And his answer was not responsive to that question.
6 7 JUDGE LAURENSON: Let me make sure I understand 8 your motion. Your motion is to strike Mr. Miele's answer 9 but not Dr. Cordaro's?
MS. LETSCHE: Well, Dr. Cordaro at least made 10 reference to so'mething on that page. I'm going to follow n
12 up on that.
JUDGE LAURENSON: The motion is granted. ,,
13 14 BY MS. LETSCHE: (Continuing) 15 Q Dr. Cordaro, is it your testimony that the 16 Footnote B on Page 44 of OPIP 3.6.1 sets forth the guide-17 lines for determining that sheltering is advisable for is radiosensitive population?
19 A (Witness Cordaro) It sets forth the framework 20 in which such a decision will be made. And it's a general 21 principle of health physics and making things like protective s
22 action recommendations.
23 0 Well, let me ask my question and let's see if I 24 can get an answer.
25 Other than your reference to Footnote B, is there 4 i
. _ _ - _ ..~ - =
8790
- 17-14-Sup ?
top block, in fact all guidance that is;on Page 44 of 2 OPIP 3.6.1.
3 And the background to that particular table is 4
the document published by EPA'on Protective Action Guides.
5 And the doses less than the whole body dose of one rem and 6
less than the thyroid dose of five rem are in reference to 7
the -- in the EPA's documentation, are in reference to a radiosensitive populations.
9 I might also mention that in formulating the 10 protective action recommendation, the Radiation Health n
Coordinator would also take into account many of the factors 12 that-Miele, Mr. Miele, was referring to. Among those would 13' be whether with the projected dose that we have at this point 14 whether plant conditiona might indicate that the release 15 might take even longer than was assumed for that particular 16 dose projection.
17 So that in the event -- in the case of the whole is body dose, we may be some fraction of the one rem. If we 19 have some reason to believe that the release duration may 20 continue longer than was believed in determining that number 21 less than one rem, then certainly that would be a factor 22 in deciding to take the sheltering, or make the sheltering, 23 recommendation at that level, less than the number indicated 24 in the block that you referred to.
t #17 25
- flws N
cy7 8805 l l
1 that must be taken into account throughout the procedure, 2 and we have mentioned those types of factors before:
3 duration of release, weather conditions outside, plant 4 conditions, several other factors.
5 Q Now my question is, given all those factors that l 6 you have all told me lots of times you're going to consider, l
7 where in this procedure does it relate the condition of each 8
one of those factors to a decision to order a protective 9 action of sheltering at projected doses of less than 1 rem 10 whole body?
11 A (Witness Cordaro) I think it's just a general 12 radiological principle of keeping doses as low as reasonably 13 achievable.
14 Q There isn't any --
15 A Yes, tha.t's stated in the footnote on page 44, 16 and that's just a general principle of radiological protection 17 which is, I think, at the foundation of development of 18 protective action guides.
I8 A (Witness Watts) That's exactly right. You're 20 taking all conditions into consideration. Ard there are s
21 several notes throughout the procedure that say that.
22 Q There isn't any explicit instruction in OPIP 3.6.1 23 that relates those factors and conditions to a decision to I4 g recommend sheltering at projected doses below the EPA PAG 25 limits, is there? I would like a yes or no answer to that.
_ ,_ .-.n. .- . - . --
- 20-2-Suo fraction of those PAGs, yes. I 2 0 Okay. So you would recommend sheltering at 3 any projected dose, I assume, above zero but below the 4 PAG limits of one whole body dnd five thyroid?
5 A No. I think you misunderstood my answer. If 6 we were projecting a dose that was a substantial fraction of 7 either one of those numbers, or appeared to be able to a increase with time to approach either one of those numbers, 9 then the sheltering recommendation would be recommended --
to Q Okay.
11 A -- for all persons in that affected zone.
12 Q How do you define a substantial fraction of one?
13 A In the case that you mentioned before of point s.
j 14 one rem, for instance, as Radiation Health Coordinator, if 15 I were to get that information -- for instance, if that was 16 a projection given to us by LILCO, we would evaluate --
17 we would evaluate how that projection was made, whether it 18 was made on plant releases, whether it was determined by 19 survey teams. We would also be doing dose projections.
20 And in the process of doing that, these dose 21 projections that LERO would incorporate many of these other s 22 factors that we talked about before, among them would be the 23 duration of release which would be a fairly key factor, and 24 if it seemed to us that the dose could increase significantly 25 above the point one rem, for instance, we would definitely 4
- 20-3-Suei consider sheltering.
And also I might mention that we see no harm in l 2 3
that, even at the level of point one rem. We may decide 4
to have the public shelter anyway. There is no harm in 5
doing that.
6 (Witness Cordaro) In fact, there may even be 7
a -- not necessarily a difference of opinion, but some e
exercise of responsibility in office here, in that the 9 radiological people may project a dose of a hundred milli-go rems and even suggest to the Director of Local Response si that, in their view, this doesn't present any significant 12 hazard or represent a significant danger even to the radio-13 sensitive populations, but yet the Director of Local Response i4 taking other considerations into account and just attempting i3 to exercise a degree of conservatism may decide to indeed to order sheltering rather than accept the recommendation that 17 this doesn't represent a hazard.
is He may make a judgment that because it's easily 19 accomplished and it's a matter of just broadcasting certain 20 kinds of information and results in a dose savings, that even 21 from a statistical standpoint, of course, making some s 22 value judgment on that, that it doesn't represent a hazard, 23 an immediate hazard or a significant hazard. It may be 24 that it's the thing to do.
25 (Witness Watts) Again, that's in keeping with
. . - . . - ~ . . . - _ . _ _ _ _ _ _ _ _ . _ __
9456 You may answer the question. I will repeat the gueT g Q
l 2 question.
You were asked whether a number of the statements 3
in your sworn testimony were LILCO's judgment. I would like j 4
to know when you make a statement like that, that you referred 5
to as a judgment, what kind of bases you have for those sorts 6
a 7
of judgments about emergency planning as a general matter?
l g
A As a general matter, there are a number of bases for saying it's LILCO's judgment. And I would first like to indicate, we've got a large staff and have had since over a ,
10 11 year ago, professional emergency planners working under my direction, LILCO employees and outside consultants who have 12 accumulated many years of experience in emergency planning. ,,,
13 g
14 That's part of the input that goes into the statement that 15 it's LILCO's judgment that a position we take in our testi-16 many is accurate and appropriate.
In addition to that, it includes knowledge of the 37 18 regulations, myself and my staff, and knowledge of the guid-ance documents, NUREG 0654 and 0396, and very importantly 19 20 knowledge of .how these documents have been interpreted by the s
21 regulatory agencies, the NRC and FEMA, in their review of our ,
22 plan and other plans, plans that have been submitted around a the count'ry, numerous plans for their review and approval.
In addition to that, in certain cases where the 24 3
question came up, the knowledge we have of LILCO's training
program and the performance of people in LERO and the drills,
- 7. suet 1 including myself as a member of LERO, is a bases.
2 In addition to that, we have had surveys done 3
which have been referred from time to time in our testimony 4
5 and in our cross-examination of what is and what is not in-6 cluded in the way of information in other emergency response 7 plans. So, all of those things taken together, some of which a would apply in this particular instance, others which would 9 apply in other instances, form the bases of our judgment.
10 0 Mr. Weismantle, you were asked yesterday if you 11 know the average distance pupils have to walk home, and you 12 said you didn't know that.
13 Can you make any sort of reasonable estimate or "
N 14 upper-bound?
15 A Well, as we indicated in our testimony, the State to rules restrict the maximum distance a pupil would walk home 17 to three miles. I believe that's for secondary schools, 18 and there are lower distances for elementary schools. So, 19 while we don't know -- have all the details that would allow 20 us to a calculation of the average distance, the average time 21 it would take, or the average distance, we can bound it by l 22 indicating that the maximum distance would be three miles 23 and given the knowledge that a person, particularly a secondary 24 student can walk at four miles an hour or so, we know that the 25 time it would take would be tangibly less than an hour maximum ,
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.ssgrecently, in the early 1980's, the Pacific Gas E
& Electric Company learned that one of its natural gas pipelines had broken and was leaking near the .
Embarcadero Center in downtown San Francisco. The company e.nd officials insediately made the news public, and an evacuation of the high-rias struc- =
I tures at risk was quickly and effectively accom-plished. Company employees assisted in the evacua- ,
b tion.
- 11. Q. What is the significance of these examples?
A. [Mileti] obviously there are emergency-related ex- -
amples in history where private companies with an interest resisted the urge to cover-up, and cases where openness was less than it could have been; there are also examples of both sorts involving public officials. What is important, however, is not that there have been emergency-related cases in which downplaying the risk has happened and cases where it has not, but rather that we have knowledge about why it'happens. This knowledge allows us to address the phenomenon in emergency plans and to develop plans that minimire the chance it will hap-pen in the future, should the plans ever be acti-vated. Delays in issuing public warnings or I
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? I otherwise sharing threat information, downplaying the threat in the information that is shared, and other manifestations of " conflict of interest" can be minimized in plans so as to help ensure the transmittal of timely and accurate threat informa-tion.
- 12. Q.
How do you design a plan to minimize this problem?
A. (Mileti] This goal can be accomplished if a plan provides for the removal of the effects of individ- I uals' personalities, fears, biases, beliefs, no- I I
tions, and so on, both from the decisions and from "
the process that links discovering the threat to .
\
seeing information about the threat conveyed to other responsible officials and to the public.
- 13. Q. Can you be more specific?
A. (Mileti] The possibility of " conflict of interest" hindering an emergency response can be minimized if (1) key decisions and transmittal instructions in reference to threat information are formalized (for example:
"given event x at probability p, call y and say z"); (2) the substance, process, and spacing of public information are formalized in ad-vance (for examples given A, read message B to l
I i
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r *(3) participants in the system know that' they are expected to carry out these tasks in the specified ,
, manner; and (4) they know that there will be a post-event audit by some review group that will hold them accountable if they do not. . ,
! .' j
- 14. g. Where did these recommendations come from? '
Ik i
i A. [Mileti] This list of recommendations rests on, in part, the findings of sociological research over T
, the years that has investigated the sharing of .
i
" risk" information among organizations and, then, l.
with the public, as well as post-event audits (done
_d by, for example, federal agencies) of emergencies i in which this sharing of information was addressed.
- 15. Q. But you can't reduce an emergency plan to a series of formulas, can you?
A. [Mileti] At the same time the emergency planner addresses the recommendations I have just made, he
, must realize that too much formalization of proce-dure and performance in any part of any emergency l plan can be counterproductive. Some room must re-l l
main for allowing professionals to make profession-al judgments on the basis of the particular k
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' circumstances that define the actual emergency sit-untion.
Otherwise, one of the principal elements of a good emergency plan -- flexibility -- will be .
lost.
The fact of the matter is that a plan must be cort-structed so as to allow judgments to be made in
}- !
times of emergency (thus making the plan flexible),
and yet still provide clear guidance to deci- {
sionmakers, f {
which helps to prevent their judgments from being adversely influenced by consideration of things like " corporate image," whether they will get reelected, " conflict of interest," or their i personal perceptions about the world. -
- 16. Q.
Has LILCO done the four things Dr. Mileti recom- .
i mends above?
For example, have you forme.lized the i
decisions and transmittal instructions as he recom- l mends? i A. [Cordaro, Weismantle] Yes. The information on t
t which protective action recommendations are based !
is stipulated by the New York State radiological emergency data form.
Most of the radiological and meteorological data on this form are taken off in-struments that have recorded outputs and can be checked subsequent to the emergency for accuracy.
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- P. b "e.mbrgency classification is based upon NRC __
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- NUREG-0654 plant initiating conditions. Shoreham
- has developed plant-specific emergency action lev-als (EAL's). These EAL's, which have been reviewed by the NRC, detail actual gauge and meter readings that when exceeded mandate the declaration of the
' i, emergency at a particular level -- that is, Unusual. ,.
i Event through General Emergency. Because these kd data are nondiscretionary, there is no opportunity b for " conflict of interest" to arise.
Also, the procedure for making protective action recommendations is quite precise. Under OPIP 3.6.1 s.
(Attachment 1) the Radiation Health Coordinator, -
who is not a LILCO employee but rather a consul-tant, is responsible for advising on protective ac-tion determinations based on recommendations pro-vided by the onsite staff at the Shoreham Station and, if time permita, on an independent development of protective action recommendations based on dose projections or offsite radiological monitoring sur-
. voy data. See OPIP 3.6.1 Section 2.0.
l l
l Among other things, OPIP 3.6.1 contains a procedure to make an independent assessment of the appropri-ate protective action by the use of a i
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ett-Packard 85 computer, which is programmed to 1 l
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tien. Sample output sheets are contained in OPIP 3.6.1. The final result will be a listing of ree-ommended protective actions for the affected zones.
g.
- e p, Then one piece of information used by the Radiation Health Coordinator is the onsite recommendation? -
A. [Cordaro, Weismantle] Yes. The Radiation Health b i coordinator receives a recommendation from the -
onsite Response Manager, which is not at issue here because it is a " Phase I" (onsite plan) matter.
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Q. And who gives the Radiation Health Coordinator the ai d
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,l information besides the onsite staff?
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A. [Cordaro, Weismantle]
'i
>l The Radiation Health
- f. Coordinator takes dose projections completed in ac-cordance with OPIP 3.5.2 or offsite dose levels measured by survey teams in accordance with OPIP 3.5.1 (or procedural equivalents). The required information for OPIP 3.5.2 (Attachment 2) is the responsibility of the DOE RAP Team Captain. See i
CPIP 3.5.2 Step 2.2. The offsite survey teams that
-collect the data under 3.5.1 (Attachment 3) are likewise provided by DOE.
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') ) emergency messages is directly determined by the emergency classification and the protective action recommendation.
As provided in OPIP 3.8.2, whenever an Alert (whan schools are in session), Site Area, or General Emergency.has been declared, the EBS system will be activated. There is no discretion on the part of any LERO member as to whether to activate the EBS I
stations once a decision to recommend a protective action has been made.
- 23. Q. What about Dr. Mileti's second recommendation?
r.
Have you formalized the substance, process, and T spacing of public information?
A. -[Cordaro, Weismantle] Yes. While the actual mes-sage released, of course, will depend on what pro-tective actions are recommended, the substance of the emergency broadcast messages has been predeter-mined as much as possible by the development of the sample messages in OPIP 3.8.2. These messages serve two purposes. First, they include all the stylistic and informational elements identified by Dr. Mileti as being necessary for effective emer-gency notification. Second, they provide a well-g developed basis upon which messages specific to the m
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As for spacing, the EBS messages will be repeated every 15 minutes.
- 24. g. And Dr. Mileti's third recommendation? Have you
', made sure that participants in all parts of the in- h i
formation system know that they are expected to carry out their emergency tasks in the specified manner? l A. [Cordaro, Weismantle, '.':fferd P Yes. All personnel associated with the development, review, and trans- -
mission of the EBS messages have been trained and have participated in drills and exercises. The radio station personnel are experienced in their i
own station procedures and will participate in a 1
simulated manner during an exercise.
- 25. Q. How about Dr. Mileti's fourth point? Do the par-ticipants know that there would be a post-event s
audit in which they would be held accountable?
A. [Cordaro, Weismantle, "^ # f ^ rd ? Yes. The proce-dures used by LERO strongly emphasize the necessity of maintaining emergency logs. OPIP 4.1.2, Step 5.4.1 (Attachment 7), identifies the following personnel as maintaining logs:
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. at'public officials have delayed giving out ,
threat information (or downplayed it) because of ,
uncertainty in the scientific information about the
_ severity or probability of the event. Also, public officials have sometimes been reluctant to " cry wolf," fearing, for example, that there might be some political backlash if the event did not happen =
or was less severe than anticipated.- For the same l
l reasons, public warnings have sometimes been " soft-9 peddled"; that is, the threat may be downplayed in k the information given to the public. Delays or the downplaying of the threat in public warnings, or' both, have also been the result of misplaced and "
unfounded fears in the minds of public officials, -
for example, that the.public would " panic" once they heard the news about the threat.
l
. I might add that what the County is alleging in Contention 11 is simply another application of
" role conflict" between different kinds of roles from those that have previously been discussed in this proceeding. Lewis Killian's 1952 article, for example, addressed a type of. conflict of loyalties between the loyalty of employees to "the dompany" as an organization and to fellow employees as friends and human beings. Killian says this:
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ion was to think of the men ,
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~5d%K=-- first and the plant later.
One plant official, active in rescue work in spite
' of a broken arm and numerous lacerations, described
' his reaction to the sudden, dramatic conflict be-tween loyalty to the company and loyalty .
the i.'
workers as follows: .' L Property! Nobody gave a dann for M property! All that was important was life.
I've often wondered just how it would plant burnbe up. to walk off and let a was. That was the way it -
We didn't fighting the fire.
even consider k Il -
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There were exceptions.
One man, who scarcely knew his workers, described his first reaction in terms that suggested he was most concerned about the com-pany's property. .
(It is not at all clear from Killian's article, however, that this man was actu-ally faced with a choice between saving people and saving property; he was simply asked by an assis-tant superintendent what the superintendent should s
do.)
But this reaction was, as Killian says, "ex-ceptional." ]
[All witnesses] Anyone, including any public offi-cial, could in theory be afraid of bringing
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ourse'is something that could be true of any decisionmaker in a_n.}y organization. If a utili- l l
ty company official may fear that he will make his company look bad, it is at least as likely that an elected official will fear to make himself look bad and get turned out of office by enraged voters at .
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the next election. In fact, there are examplhe of this very phencuenon. There is simply nothing pe-h, culiar about utility companies that makes their of- g ficials especially susceptible to this sort of Il '1 I
l pressure. It is just as real for public officials j I
in emergencies.
s.
- 27. Q. Would LILCO be peculiarly susceptible to " conflict of interest" because it would have " caused" the emergency? ,
l A. [Mileti] Several observations suggest that this i l
concern is unfounded. First, most people would have to conclude that the Three Mile Island acci-dent was the most studied and scrutinized emergency in the history of our nation, and that another emergency at a nuclear power plant would likely also be the object of extensive and detailed post-audits. This image of accountability is most like-ly higher for utilities in communities like Suffolk i
l
- - - _ - _ _ _ ._ __.__ ____.______ _ ___._ _ __,, ..__ __ _ _.__ _ ___._ _ - _ ,- s
,7 -
f ocedures and protective actions.
W- -,5 are prepared in advance to the extent .i
- '~possible.
g, How are LERO command and control personnel made conscious of the need to protect the public first 1 I
l and foremost? - ->
hM(O MMM g The training program makes it clear that protection t* 1 A. ,-
of the public is the purpose of offsite prepared- .
ness. See attached Transcript of Lesson Plan #1 k (Attachment 8) and Training Workbook Module No. 17 5,j (Attachment 9). ',
1 1
- 32. Q. .Does the LILCO Transition Plan call for the notifi- ,,
cation of State end local government officials -
early in an accident?
l l
A. [Cordaro, Weismantle] Yes. Notification from the site to LERO is through the Radiological Emergency Communications System'(RECS). Both New York State and Suffolk County are part of this system. The emergency phones located at the State and County facilities will ring any time the site is making an emergency notification.
l I
j 33. Q. If Suffolk County officials wanted to serve as a check on LILCO's offsite decisionmaking in a real emergency, does the emergency plan permit them to do so?
,, .,_.._.<__-.2-- t- - - - &
10,225 I They are all working within the framework of g'pt l
the plan and procedures. That is a relatively well defined
~
one, i
O Now, Dr.~Mileti, let me refer you to your 5 testimony on Page 7 in response to Question 8.
A (Witness Mileti) l 6 Yes, I see it.
l 7 Q Okay. When you refer to the term " conflict of g
interest" there in that response, you are using that term 9
in the sociological sense that you described earlier, 10 correct?
A 11 What I was using it as here was in the general 12 sense, which would include the way it's cited in the con-s.
13 tention as well as other manifestations.
Q 14 You say that conflict of interest has also oc-15 curred in emergencies caused by natural events. My ques-16 tion is, what financial interest would a public official 17 be protecting by delaying the dissemination of information 18 about the imminence of a natural event?
19 A Their job.
20 0
Would you describe what you are referring to?
21 A Sure. I can give you an example. And then if a you want more, I'm happy to do that.
23 Rapid City in 1972 had a very bad flood, and the 24 public information that was given out in Rapid City suffered 25 a great deal, it wasn't very good. As a consequence of that,
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. ~.
s, 10,226 8T l one of the elected officials in Rapid City lost their job; 2
f '88 2 it happened to have been the Sheriff, and he, lost his job for his performance in the particular flood.
Q Now, my question, Dr. Mileti, is what financial 5 interest would that public official have in delaying the
, dissemination of the emergency information?
7 MR. CHRISTMAN: Asked and answered. Objection.
8 It's obvious.
, JUDGE LAURENSON: Overruled.
g WITNESS MILETI: Well, I will trace through 11 exactly what happened in Rapid City to the best of my 12 recollection. They use something called the bucket method g to determine what kind of rainfall was happening, and pr6-y ject from that whether it was a flood hazard or not. That g meant, people kept buckets in their back yards literally.
16 It's used a lot by the National Weather Service, because g they don't have money for elaborate instrumentation.
18 And the National Weather Service found out that ig it had rained quite heavily and that it had rained seven m inches and the creek had risen seven inches. And what that meant, 21 from a public safety point of view, was that a pendinq l
l 22 disaster was obvious. AndtheNationalWeatherServicegave{
\
n that information to some locals. And those locals passed
\
24 that information on to other locals, and those locals passed 25 it on to other locals. And in each step of the way -- and
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10,271 ,
.Q They are expected by the Company to carry out ga*T I
'1'g, those tasks, correct?
2 3
A And I imagine by other people, a generic des-4 cription of responsibilities to the role is what is 5
imp rtant.
6 And by that I mean that they know they are 7 supposed to do their job in a certain way.
3 Q They know because they have been told by the g Company that that's the job they are supposed to do?
10 A Well, I presume they know because they have 11 been trained.
12 Q And they've been trained by the Company, 13 correct?
14 A I presume they've been trained by LERO.
M Q Do you draw a distinction between LILCO and le LERO?
17 A Yes. I think they are two different organiza-t i
18 tions; that's why they have two different names.
19 Q The fourth item is that there will be a post-20 event audit by some review group that will hold them 21 accountable if they do not -- I'm talking about respond H appropriately, correct?
2 A Yes.
24 Q With respect to the post-event audit, is it your.
2 understanding that under the law LERO is accountable to o
_ , m --
. - - n. __
10,273 4
someone is going to come in and examine if they did their IN'9 39e7 g 2 job well or not.
3 BY MR. MC HURRAY: (Continuing) 4 Q You are talking about a host event, media 5 coverage, for instance?
6 A Oh, certainly not, I'm talking about things 7
like the Kemeny Commission that investigated the Three g
Mile Island accident. They went around finding out exactly g
what every person did during the whole affad r.
to And I suspect if there's an accident at another
~
11 nuclear power plant that is a significant one, the same 12 thing will happen. I will probably be there doing inves'ti-13 gations myself.
14 Q
Dr. Mileti, with respect to these four factors, 15 l
what studies are you claiming refer to these four factors 16 as the factors that will reduce conflict of interest if 17
- they are incorporated into a plan?
18 And I want specific studies, please.
19 A Fine. Specifically, I would say the literature 2
that begins pointing in this direction, and I'm not sug-21 gesting that you can find the words I've used to paraphrase M
these studies verbatim in them, but rather these are the D
. conclusions you would reach after you read them.
l 24 I I believe began back about the first public --
3 well, the first research probably on this was 1957 or N -. . .
_ c . t_.u_.
, " 7' 10,274 l
1 thereabouts. The first significant piece of work was pSueT II 2 written by a fellow named William Anderson, who was then 80 h 3 affiliated with the National Academy of Science Research 4 panel on the Great Alaskan earthquake. And a few years 5 after that investigated the emergence of public emergency 6 information and warnings associated with that earthquake as 7 they effected Tsunami warnings in Hilo, Hawaii and l
l 8 Crescent City, California. It was published in a journal 9 I believe in 1969 called Communication Research, and the 10 title was something like " Emergency Communication in-Two 11 Communities" or some such thing.
12 And I think from my point of view that was the 13 first very articulate, precise statement of how it.is tha UN I 14 emergency information can suffer from constraints. And i 15 those constraints can include things that I'm sure Bill 16 did not call conflict of interest, but the problems and 17 the factors that affect decision-makers as they decide 18 whether to go public with something or not or downplay
'19 something.
2 In addition to that, one of the fellows who 21 l almost started research in this nation on how human beings M
respond to emergency warnings was a fellow named Benjamin M McLuckie. He is dead now. And his dissertation was one 24 '
of the first ones to conceptualize warning systems, not i 3 only the factors that affect public response but the factors l
,7~
10,275 psueT 1
that affect emergence of warnings and what they are. Th5 2
dissertation probably came out in the late 60s or early k 3 70s, and wouldn't you know he is from Ohio State Disaster 4 Research Center.
5 Q Let me interrupt you there, Dr. Mileti. With 6
respect to these studies that you have named so far, whicl i 7
ones explicitly focused on financial conflict of interest 8
and how to reduce that conflict of-interest? l 1
9 A I believe all of these focused on what, in you2 I 10 terms, you would call conflict of interest. I don't reca]
11 if any of them pinpointed financial conflict of interest, 12 but I would think that financial conflict of interest woul s.
13 S
i be subsumed and included in all of them in the sense that l
14 anyone who decides to issue a public warning, regardless c 15 their seat, position, or job, has a stake, which by the wa-16 is the concept we, in sociology, use to describe conflict 17 of interest. Stake.
18 Q With respect to these four studies, which ones 19 actually -- did any single study lay out these four factor 20 s
as factors that should be incorporated into a plan to 21 attempt to reduce conflict of intere'st?
! M A I don't think any of them used those words; M
l however, I believe that one called Natural Hazard Warning 24 q Systems in the United States, published by myself in 1975, M
reviewed the literature of others and provided some origin l
( -.
~;
10,276 y., Suet 1 research as well to address what are the factors that con- !
j E
2 strain the issuance of good warnings. And that would in-3 clude things that you might label conflict of interests, 4 be they financial, institutional or stemming from other 5 Pl aces for other reasons.
l i 6 Q Do you specifically' address as a sub part of 7 that study one -- I'm talking about explicitly address, 8 how one diminishes financial conflict of interest?
g A No. I wrote that monograph as a sociologist 10 would, not as a lawyer would.
11 ' Q And --
12 A So, the concepts I used were sociological rather s.
13 than legal.
14 O And did you specifically address how one would 15 attempt to reduce institutional interests by using these 16 four factors?
17 A What I addressed was how someone who was design-18 ing an emergency plan, and that includes anybody who is 19 designing an emergency plan, what they might do to make 20 sure that good, timely warnings go out to the public when 21 they need to go out to the public and eliminate constraints l 22 which would include financial and institutional conflicts El of interest, although I didn't call them that.
24 Q Can you refer me to the section of that study, 25 if you can recall, that specifically addressed the issue of l
Mk
- =
10,277
- eT 1 how one reduces the institutional conflict of interest that 2
one might feel that would result in a downplaying of 3 emergency information?
4 A I' don't remember the number of the section, but 5
it would have been the section prior to the one that 6
describes how and why it is the public comes to behave the 7
way it does in an emergency. And it's.also possible that 8
I might have addressed this topic in the conclusions. And 9
if there was a section, and there may well have been, for 10 nonacademics, that's likely to be something that would have 11 been addressed in there.
u o Do you discuss specifically what interest various s.
13 -
institutions have in downplaying information?
14 A I don't believe I give a catalog list of all of t
15 them, no.
18 1
By the way, I was'n't done listing the literature l 17 that you asked for. Would you like to know about other 18 studies?
19 1
Q Do you have more to give?
8 A There are several others that are interesting 21 if one wants to learn about this phenomenon. One was M
written by a fellow named Will Kennedy, who is at San U
Diego State University. And it's in a journal called 24 the American Behavioral Scientiest, I believe the same D
issue that I referenced yesterday, in which he talks about
)W _
10,278 ,
l I
eT 1 police departments in disasters, and that's a place where I l
- 'I ,5u 1
2 believe my second factor, one of the things that's a basis for -- no, the third one, knowing what your job is, stems from. And that'was about 1970 I believe.
l l 5 And there are others. For example, Charlie l , rriez's section on disaster and, nerton and his first 7 edition of social problems text called Contemporary Social g Problems, not so contemporary anymore. . It was written in
, 1961, describes problems and constraints of public officials 10 and others giving emergency information out to the public 11 and what some of those constraints are.
12 There are others in addition to that. I just 13 don't recall right now. But those are all outlined, by the 14 way, in the 1975 monograph I wrote on warning systems for a 15 more complete list. It would be easy to get them there.
Q 16 And these studies address conflict.of interests 17 in the sociological sense as you have discussed it before?
A 18 I believe that these studies address the con-19 straints that would keep the public from getting good 20 emergency information as emergencies are occurring. I 21 doubt that any of those social scientists explicitly called a them conflict of interest, but it's possible. They would u
have used jargon that is appropriate for the social sciences, 24 not jargon that you lawyers might use.
25 But it would include -- and that's the phenomenon AW
T 10,279 ,
g.,50*T
' that they are addressing, and we know well that these Y
2 problems, these constraints, stem, and do prevail, from man y
, factors beyond financial or institutional interests. )
l l
Q 4
Isn't it a fact, Dr. Mileti, that not one of the studies that you have listed here specifically addresse s I
financial interests and how that affects response?
7 A No, that's not true. In fact, they address it.
g They just don't address it in the jargon a lawyer would use .
9 They address it in the jargon a social scientist would use .
g None of the people who did those studies were 11 lawyers, although there are some lawyers now doing studies 12 on this very thing.
s.
13 Q Well, what jargon is used other than financial I
g4 interest?
15 A Constraints to the emergence of a warning, stake.
18 Q Well, what jargon is used to specifically dis-17 cuss financial conflict of interests, financial constraint?
18 A No, just constraint.
19 Q Just constraint generally means financial?
m A Certainly, because social scientists are con-21 cerned with what happens.
n Q Social scientists are not interested in focusing 3
on financial constraints?
24 A No.
l That's certainly one of the independent 3
variables but would be lumped into the category called
. .. .- . u. . .: :.n . -. . ~ . . .- .-- - - -
l '10,361 l
l19/1 1
O Mr. Weismantle, I would like to refer you 2 to page 20. Do you see the sentence that says -- it is t 1 3 in the middle of the page - "As a result, all senior ;
1 4 . members of LERO are well aware of the significance of their~ )
5 positions and the public scrutiny that they would be under"?
6 A (Witness Weismantle) Yes.
7 ~
Q Without giving,me names, who do you mean by senior 8
members of LERO?
8 A What we are referring to here are the particular 10 people in positions like the director, manager, and I would 11 say even the level below that, the major coordinators.
O Such as the ones that are listed at the top of 13 the page, the health services coordinator, are they major "
h !
14 coordinators?
15 A Yes.
16 Q Would you agree that the. senior members would be II under corporate scrutiny in addition to public scrutiny?
l 18 A In what respect or in --
19 l Q Your statement says that the senior members of l
l 20 LERO would be well aware of the significance of their 21 positions and the public scrutiny they would be under.
22 Wouldn't they also be aware of the significance 23 of their positions and the corporate scrutiny they would g i be under?
25 l
A Well, I think, yes, I think obviously LILCO has
10,362
}fl 1 an interest in LERO working the way it is intended to 2 function; that is, consistent with the plan and procedures.
3 So to that extent, I would say they would be 4 aware that they were under corporate scrutiny.
5 Q If any of these senior members had to leave the 6 employ of LILCO, would you expect them to be able to l 1 7 obtain employment elsewhere at the same level? i 8 A I really can't comment on that. It would just 9
be pure speculation as to what their chances of getting 10 a comparable job were.
11 O Aren't you a manager of local response?
12 A Yes.
s.
13 0 would you speculate on your own circumstance?
14 MR. CHRISTMAN: Objection. Asking him to 15
. speculate, and it is vague in addition.
16 JUDGE LAURENSON: Sustained.
17 BY MR. ZAHNLEUTER:
18 Q Dr. Mileti, you spoke with Mr. McMurray about 18 your testimony on pages 8 and 9.
20 l Isn't it true that these examples that you list --
21 these illustrations are examples of conflict of interest?
A (Witness Mileti) I believe that these are U
examples of cases where the public was not as informed as 24 it could have been about an impending danger or emergency or potential emergency.
, --m- J 9 _ ---- --,
m -
. .w a s :- .- . .~ _ .- .: _ n .
10,371 1
g/2 1 your written testimony to document why?
2 A Yes. The Rapid City example.
i l 3 Q What did that Rapid City story tell you about -
4 why there was a conflict of interest?
5 A Because the sheriff was apprehensive about once 6 again, in his home community, where 232 of his friends and 7 neighbors died ten days or seven days after that, of telling 8 the community that it was going to happen again.
8 And he didn't want to do that because he was 10 fearful for his, I believe, financial interests associated 11 with his job because an election was upcoming, and in his 12 heart, his bias was that he didn't really believe lightening 13 struck twice, even though that very night the Indians
l l 14 were up in the hills trying to do a rain dance willfully 15 to create another flood.
16 In the answer to question 12, you talk about the Q
17 effects of individuals' personalities, fears, biases, 18 beliefs, and notions.
19 Was this example that you just spoke of with 20
.the sheriff, was that an example of a bias as you meant 21 it in the answer to question 12?
2 A Yes. What I meant here is the factors that 23 we human beings are subject to as we process and give 24 information. Biases, fears, personalities, beliefs, notions, g .
25 I think there are 40 other words I could have put in here.
s 1
l 10,372 l pil' l 1 I meant to say the factors that we as individuals 2 might have affeet what it is we do as we process warning E l 9 3 information.
4 Q What is an example of an individual's personality 5 which would be undesirable?
6 A Being reluctant to believe that an event like 7 a flood caused by a rain dance could actually happen.
8 Not being superstitious or being superstitious, being 8 overconcerned about the public or being under concerned 10 about the public. Any personality factor you could come 11 up with could affect it. _
12 O Any personality factor?
13 A Probably. There are probably some that couldn't, l 14 but I would say most of them could. Personality factors 15 in general -- some people don' t listen well; some people 16 do listen well.
17 O Is that also true for fears -- namely, that 18 any fear would be important?
19 A Some fears could and some fears wouldn't. I 20 imagine fears of ghosts would affect an emergency 21 '
power plant. Other fears night.
22 O Would the radiation health coordinator be just 23 as susceptible to these undesirable effects?
24 j
A If the radiation health coordinator is a person, 25 then he has these characteristics or she has these Mk .
a-.- . . _ _. . _ __ ,
10,377 0 Could you elaborate on that? If a person who eT g
- pSu P w rked for LERO did own stock in LILCO and did have a 2
fear, r a personality type as you list in the answer to 3
Question 12, would there be a conflict of interest?
4 A I don't understand the question. It makes no 5
6 technical sense to me worded as it is.
0 What would be changed to make it technically 7
,g sensible?
A You mean, what question would I want to ask g
myselD 10 0 Yes.
11 A Well, if I were asking myself the question, what 12 I would ask is: Does everybody have personalities, fears, g
biases, beliefs, notions, et cetera. And the answer would be: Yes. Everybody has them.
15 And you should assume -- I should ask this as 16 a question. Would you assume that these things could l 17 affect how they might' behave in an emergency. And the 18 gg answer would be: Yes.
And would you guess -- because that's all I know 3
I could do -- that those things would affect whether they 21 l buy stock or not. And I would guess, yes, although I 3
haven't seen any studies for it. !
l g l
And then I would ask myself the bottom line, 3
which is relevant, and that is: Can you take steps in an 3
lJL . _
10,384 A (Witness Kessler) Well, certainly the conse-Juei 1 2 quence of a major gas leak could be catastrophic, similar 3
te,the one that Dr. Mileti referred to in California.
4 We, therefore, have procedures that are designed 5
to find these leaks and correct them before they become 6 catastrophic proportions. So, all of our procedures are l
! 7 designed to minimize this occurrence.
8 And the primary reason would be one whereby we 9
would be interested in protecting the health and welfare 10 of the public. And as a result of that, we frequently over-11 react because natural gas emergency is not completely unlike 12 radiological emergency because when you do effect the shut-13 off of the gas you don't necessarily eliminate the emergency, 14 because you do have pockets of gas that oftentimes have 15 lost their odorization because they filter through the 16 soil.
17 And so when you think you have actually achieved 18 the secure situation you may not, in fact, have done that.
19 And what we do in that situation is the same that would be 20 done in a radiological event. We evaluate the amount of s
21 time we have, we take all the data that is available to us 22 through instrument testing of the environment, the atmosphere, I'
23 and we make a judgment.
1 24 And frequently when the information is not i
2 adequate, we simply to move people out of buildings and
. m.
_ _ _ _ _ ..._: .. = :-.. - - ' ~--r- - - --
10,389 , l gM}
because the City Manager of Mayor, whatever the role was, g.3e! 1 2
but that sort of thing, that fellow on t.v., declared
~
3 martial law, which I might add he had no legal authority 4 to do, and ordered people to evacuate and leave their homes.
5 O With respect to the Sheriff, you would agree, l 6 wouldn't you, thdt the forecast of the first flood, which
! 7 didn't occur -- or, did it occur?
- 8 A The first flood did,.yes.
I
! 9 Q Okay. That that influenced or colored his t
to determination as to whether a second flood was likely?
11 A Of course. People's experience like that can 12 effect their beliefs or notions or biases, et cetera, which 13 is.why it's important to try to remove those things froms.
14 emergency plans.
l l 15 MR. !!C MURRAY: I have no further questions, 16 Judge Laurenson.
17 JUDGE LAURENSON: Any other questions for the 18 panel?
19 MR. CFRISTMAN: No.
m JUDGE LAURENSON: All right. At this point, L
21 the panel is excused.
n (The panel of witnesses stood aside.)
l 2 We will take our last ten minute recess, and we 24 Will resume with the LILCO panel on Contention 15.
2
.u.a .- -
Cordaro et al., ff.
Tr. 10,396 and protective action recommendations. When DOE is k
represented, the EBS broadcasts will state that protective actions have been decided in consulta-tion with DOE personnel from Brookhaven. We be-lieve that people on Long Island view Brookhaven scientists as highly credible. This should add credibility to LERO recommendations.
Also, LILCO made provisions to consult with scien-tists, nuclear engineers, and officials from public agencies (FEMA, NRC, and DOE) on protective action recommendations to the public. These individuals will be referenced in the EBS messages ~. See LILCO s.
Transition Plan, page 3.6-4, and OPIP 3.6.1, page N 1, V 2.3.
And the messages are designed to give the public clear and accurate information about the amount of radiation that has either been measured or is projected at various distances from the plant.
To put this information in perspective, the
. messages also relate EPA guidelines for sheltering and for evacuation. Thus the public can see for s
itself whether LERO's protective action recommenda-tions make sense in light of EPA guidance.
t
- 17. Q.
1 Why do you think LILCO is capable of writing and implementing a credible radiological emergency l plan?
l
. . . . . . _ _ _ _ _ . _ . ,m __
_.m ~._ . , _ . _ . - .
Barnett et al , ff.
Tr. 10,396 A. [Cordaro, Weismantle] The reason we feel confident that LILCO can implement a credible radiological emergency response plan is that LILCO has the only organization in the United States devoted to offsite radiological emergency planning for a sin-gle nuclear plant of the size (approximately 30 full-time people) and expertise of the Local Emer-gency Response Implementing Organization (LERIO).
LILCO's work is probably the most extensive on offsite_ radiological emergency planning in the United States. The 30 or so full-time LILCO people working on emergency planning as part of LERIO have been involved with nuclear power plants for much of s.
their professional lives. There is simply no way that any State or local government can match this
~
depth and breadth of expertise.
- 18. Q. How does the quality of LILCO's planning effort af-feet LILCO's credibility in an emergency?
"A. [Cordaro, Weismantle] We believe that as the pub-lic becomes more familiar with the quality of the LILCO planning effort, our credibility will rise.
=
.g-,, ,
. :.. . . 2-:~..-~--.---.. .. -
. l LILCO, Juno 2, 1984
" Errata and Update," ff.
Tr. 10,396 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
- Before the Atomic Safety and Licensing Board l In the Matter of )
} }
l LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning (Shoreham Nuclear Power Station, ) Proceeding)
Unit 1) )
ERRATA FOR AND UPDATE TO "LILCO TESTIMONY ON CONTENTION 15 (CREDIBILITY)"
The following changes should be made to "LILCO Testimony on Contention 15 (Credibility)," dated March 30, 1984. When s.
the written testimony is offered into evidence at the hearing, this errata sheet will be offered as well.
Testimony Change Page 24 The first number under the heading "How Many Plants Under Construction Will Be Completed?" should be "22%"
instead of "33%."
Page 37, line 3 Change "[Sorensen]" to "[Clawson, Robinson, Sorensen]."
l Page 39 After line 22, add the following paragraph: "Also, LILCO has secured l the agreement of two scientists from l
the Brookhaven Lab to be present in the Emergency News Center, both dur-I ing drills and during an actual emer-gency, should one occur. These sci-
! entists, one of whom is an M.D., are i y experts in matters of radiological 4 health and safety and will serve as independent reviewers of the A . . . .
- - - .1_ n _._. ._ _ _ _ . _ . l 1
, 1 I
Testimony Change l
information disseminated by LILCO personnel. The scientists have j agreed to do this without compensa-tion."
l i Page 76, line 16 Change " define and' risk" to " define
. the risk."
i
' Insert "[Cordaro, Weismantle]" before Page 84, line 5 the beginning of the answer.
Page 90, line 6 Change "[Cordaro, Weismantle]" to
"[Clawson, Cordaro, Weismantle]."
Page 100, line 20 Change "[Clawson, Cordaro, Weismantle]" to "[C1swson, Cordaro, Robinson, Weismantle)."
Page 101, line 7 Change "[Cordaro, Weismantle]" to
"[Clawson, Cordaro, Robinson, Weismantlel."
Page 103, lines 5-9 The first sentence of Answer 78 ,,
should read "In the case of LERO Per-Sonnel positioned at the EPZ perime-ter, their presence will tend to deter entry into the EPZ." The sec-ond sentence ("They do this by explaining . . . . ") should be de-leted altogether.
Page 105, line 19 Change "[Cordaro, Robinson, Weismantle]" to "[Clawson, Cordaro, Robinson, Weismantle]."
Page 107, line 2 Change "[Cordaro, Robinson, ;
Weismantle]" to "[Clawson, Cordaro, j Robinson, Weismantle]."
Page 108, line 6 Change "[Cordaro, Robinson, s
Weismantle]" to "[Clawson, Cordaro, Robinson, Weismantle]."
Page 108, line 15 Change "[Cordaro, Robinson, Weismantle]" to "[Clawson, Cordaro, Robinson, Weismantle]."
(
1 l
l A - -
. :- -.. : .. ..,_..:. .- - - a-gh7-Wal 10,397 1 JUDGE LAURENSON: Mr. McMurray?
INDEX 2 CROSS EXAMINATION 3 BY MR. McMURRAY:
4 Q There has been a paragraph added on to page 39, 5 Mr. Weismantle, and I would like to ask you a few questions 6 about it. It says that : LILCO has secured the agreement 7 of two scientists from the Brookhaven Lab to be present 8 at the emergency news center. Who are these two scientists?
9 A (Witness Weismantle) I think Ms. Robinson can 10 answer that better than I.
11 Q Okay, fine. Ms. Robinson?
12 A (Witness Robinson) Aron Bertrand Brill, M. D.,"
13 and Ph.D. And Michael A. Bender, Ph. D. "
14 Q Mr. Brill is a medical doctor?
15 A Yes. Dr. Brill is a medical doctor.
16 Q And Mr. Bender has his Ph. D in what?
17 A His Ph. D was received in 1956. And -- it was 18 in cancer research from John Hopkins University.
19 Q Are either of these men nuclear scientists?
m A They are both specialists in the field of health s
21 effects of radiation.
U Q But they are not experts, I take it then, in 23 what makes the plant operate, and how it operates. Technical 24 things like that?
25 A That is correct. They are not.
I
. - - - - - = - - -- - ,\
10,398 g-8-Wal 1 Q Are either of these men -- do you have letters 2 of agreement with these two men?
3 A We have held discussions with them, and we have 4 received.a letter from them saying that they would participat e 5 in -- at the ENC, the emergency news cen'ter, to be available .
6 to provide technical information to media on health effects
( 7 of radiation, and we have recieved a letter from them to 8 . that effect.
9 Q Are either of them affiliated with Citizens for 10 an Orderly Energy Policy?
11 A I don't know.
12 Q Does anybody else know the answer to that question 13 on this panel.
14 A (Witness Weismantle) No.
15 A (Witness Robinson) Their resumes go mostly to 16 very technical and professional societies and affiliations.
17 We never inquired into anything else.
18 O So you never inquired whether they might be 19 associated with Citizens for an Orderly Energy Policy?
20 A No, I did not, s
21 Q In your mind, would that have an effect on 22 their credibility as spokesmen at the ENC?
23 A Obviously not, since it never occurred to me to 24 inquire about any memberships beyond their professional WF qualifications and affiliations.
adL -
l 3
^
,,g.4tl 10,472 g l t
l l l
1 was a difference in the radiation at Brookhaven and b 2 at nuclear power plants.
l 3 A (Witness Clawson) Let me just add very briefly 4
that I think we need to make some distinction between the -
5 political posturing that is going on in.the community now 6
regarding the possibility of operating Shoreham versus 7
the possibility of not operating Shoreham. And in terms 8
of linking Brookhaven scientists to a position on this.
9 And the distinction that we have to make is 10 what is happening now versus what would happen after the 11 plant is operating, and we may be dealing with an accident .
12 scenario.
13 I think at that point in time, the likelihood I 14 of a Brookhaven scientist saying something totally contrary '
15 to his professional bel'iefs, whether it be a pro-nuclear 16 or whatever kind of belief, is utterly ridiculous to l 17 speculate about.
18 Q Ms. Clawson,, we are not talking about whether 19 or not a scientist would say something contrary to his 20 s
beliefs. We are talking about public perception of what 21 the scientist says.- It is two different matters, wouldn't n you agree?
23 A I agree that it is two different matters, but 24 we are talking about it now in the context of the political 25 posturing that is going on in the community relative to the
10,473 i
5,10-Wal I 1 Shoreham plant, as opposed to a factual accident situation t
2 that would occur -- that may occur af ter the plant is ggggg g 3 operating, and we are trying to respond to an incident 4 at the plant. .
5 I think we are talking about apples and oranges.
6 Q Well, do you have any quantitative data that i
l 7 show that Brookhaven and LILCO a're not l' inked in the 1
8 public's mind?
9 A I think it is irrelevant r
10 0 Despite your belief that it is irrelevant, 11 you don't have any data, correct, as to whether or not there is a link between Brookhaven and LILCO in the
~
12 13 public's eye?
14 A I don't have any data one way or the other 15 concerning that.
16 Q And you don't think it is important to know 17 that?
18 A Not in the context of an accident scenario, 19 that is correct.
20 Q You would agree, wouldn't you, Ms. Clawson, 21 that public perception of credibility is and can be 22 influenced by press reports, newspaper articles, et cetera?
23 A Yes, I do.
24 Q So, you would agree, wouldn't you, that where 2 there is negative publicity regarding LILCO, its management,
e 10,518 9/5 1 different sorts, et cetera.
2 BY MR. MC MURRAY:
3 Q Mr. Weismantle, you would agree, wouldn't you, 4 tha* the NRC would not necessarily be present at the EOC 5 when the first EBS message is broadcast?
6 A (Witness Weismantle) No, they wouldn't i
7 necessarily have a representative there. It would -- no.
8 Q And there is no agreement with the county or 9 with the state to undertake the confirmatory functions that 10 you described earlier, correct?
11 MR. CliRISTMAN: Objection, I think that is f
12 obvious.
13 JUDGE LAURENSON: Overruled.
14 WITNESS WEISMANTLE: Obviously there is no 15 written agreement at the current time. But as we have 16 said before in different contentions, we fully expect them 17 to respond. And part of their response would, to the 18 degree they think necessary,-involve confirmation, I suppose.
19 WITNESS CORDARO: If the county would like to 20 enter into such agreement, we would be willing to agree to 21 it.
22 BY MR. MC MURRAY:
23 Q That is your speculation that the state and county 24 will, in. fact, participate; isn't that correct?
25 A (Witness Weismantle) I wouldn't call it pure if I
,.._,_m _
9/6 l 10,519 1
speculation because I think, as we have testified -- certain 2
members of this panel particularly testified over and over, 3
in a real emergency, the response of a particular agency 4
would be to try to protect the health and safety of those "
5 people that are affected by or potentially at risk.
6
.In fact, I think, as we indicated in this testimony ,
7 even Governor Cuomo has indicated he would respond in a 8
real emergency if, in fact, the plant was licensed and 8
that situation arose, even though he is apparently against 10 licensing the plant.
11 Q
You would agree also, wouldn't you, Mr. Weismantle, a 12 that it is not necessarily true that upon activation of tha.
13
) EPS system that a member of DOE would be at the EOC or 14 a representative of DOE?
15 A No. It is not necessarily true that a member of 16 LERO would be at the EOC either. The system could be 17
! activated prior to activation of the EOC by procedure.
18 Q So you would agree then, wouldn't you, that it 18 could be a matter of some time before an individual 20 s
seeking confirmation from the NRC or DOE could obtain that 21 confirmation?
A Well, surely it would take some time. I point out that the DOE, again, depending on the time of the 4
accident and so forth, the DOE representative at the EOC might be coming from Brookhaven National Laboratory which
10,527 0 2. suet 1 Q Then, I'm wondering what the relevance of this 2 response is, since only LILCO is going to be implementing 3 this plan.
4 A Well -- ,
5 Q Isn't it true that we are focusing here on LILCO' s
! 6 credibility?
l 7
MR. CHRISTMAN: I object to counsel continually 8 asking the witness what the relevance of their testimony g is. Obviously we all think that the -- the witnesses think to that it is relevan~c to the issue. If counsel thought it
. 11 was irrelevant, he should have moved to strike, or he can 12 argue in his findings if it's irrelevant.
13 JUDGE LAURENSON: The objection is overruled.
14 WITNESS WEISMANTLE: Could you repeat that 15 question, because there was a premise in it that I don't 16 think I agreed with.
17 BY MR. MC MURRAY: (Continuing) 18 0 The LILCO plan, as presently written, provides tg for implementation of that plan so'ely by LILCO, correct?
, 3 A No.
21 Q LILCO is i7 the position of command and control n of that plan, isn't that correct?
23 A That's right. But the plan also indicates that 24 should the State and/or County choose to respond there are 25 Provisions to incorporate them into the on-site -- the
. . . ._ . .. .-. - . - . .~ . .-=1 10,528 1 Local Emergency Response Organization. l
' 3-Suet And assuming they do not choose to respond, then f gg ,) 2 Q 3 the plan calls for LILCO to implement the plan itself, 4 correct?
5 A No. It calls for LERO to implement the plan 6 which is primarily LILCO employees but also DOE, the Coast 7 Guard, Red Cross, et cetera, all has been discussed many 8 times before.
9 Q Also, on'Page 38 in your testimony you state 10 that if the NRC is credible it is reasonable to believe that 11 DOE is also. .
12 What's the basis for that statement, Mr.
13 Weismantle?
14 A Well, I think there are a couple of bases at 15 least. One, DOE is another federal agency that has expertise is in the field of nuclear energy, energy in general and nuclear 17 energy. Another is, as has been discussed with Dr. Barnett 18 in terms of the particular expertise he brings to this pa'nel, 19 and I guess to the extent that people associate National
%L Laboratories with Independent Laboratories on Table 4 and 5, s
21 that lends support to this statement.
22 Q So that the DOE in Brookhaven, in response to 23 that question, you are sort of lumping together, correct?
24 A Yeah. I would say so, in our particular case.
25 Q Do you believe that it is reasonable to assume
- e---we
~~.
l 15/3 10,592 1 A I was referring to perceptions of belief in the 2
emergency information.
3 Q And with respect to my last question then, 4
given that statement that other factors can affect -
5 perceptions of belief in emergency information, how can you 8
say that good information alone, if implemented properly, i
l will overcome low credibility?
j A Because I. understand the characteristics of 8
how it is that people come to believe something in an 10 emergency.
} For example, other factors affect perceptions !
12 l of belief of the emergency information that someone is 13 getting.
I 14 Let me give you an example. Sex, for example.
i 15 l Females -- and this has been documented in some studies, and 16 I am sure I don't remember what the disaster agent was --
17 tend to more readily believe the emergency information 18 that issued than men. That is another factor.
19 That doesn't mean you can't have an emergency s
in a community where there are men because they believe 21 it less. What it means is that the emergency information 22 needs to work harder to have men come to believe the 23 emergency information than it has to work to get women gggg to believe the emergency information.
25 How do you take that into account and how do you 4-e a
15/4 10,593 l I
design a system that can save both female lives and male 2
lives? Well, you do what is necessary to save the men, and 3 in the process you also get the women.
4 It is also much harder to convince old people ,
5 that an emergency is about to happen.
l For some reason --
6 and I am not a psychologist; I don't know that I understand 7
this in terms of how a psychologist might -- older people 8
probably don't want to get up and leave their living room.
9 They are much less likely to really believe that something to bad is going to happen to their home and that they need to 11 leave it. !
12 So they need to hear the information more. So 13 you design a system that gives what we know eventually 14 elicits belief, is confirmation, a system that gives, for 15 example, EBS messages that come out every 15 minutes, that 16 enhances the number of times that they believe it because 17 we know the number of times people hear emergency information, 18 the probability of belief increases.
19 And that happens independent of the initial 20 s
credibility of participants or nonparticipants in the 21 emergency information system.
22 And then we not only get to save men and women, 23 we get to save old ones, too. And we could go right down 24 the list of other kinds of factors that people in studies have 25 found that co-vary with how people process emergency
-. -- - - - . --.---.w =. .:.. . _ - _ _
ig/7 10,633 1
4 Q But not to guarantee that it would be believed, 2
correct?
3 A I wouldn't use the word " guarantee." I would 4
say to maximize the odds that it is believed by most
- I 5 people, 6
i Q On the bottom of page 57, you say, "In fact,
{ 7 there are some who believe that states of fear, anxiety, 8
stress, or whatever other concepts are used to describe 8
motivation are necessary to elicit good warning response."
10 Do you see that?
11 A Yes. !
12 .
Q Are you one of the people adhering to that ,,
13 opinion?
14 A Yes, I am. There also are others.
15 For example, Janis' work -- and he has been 16 writing things on this for quite a long time -- suggests 17
\
that this is necessary to get people to respond to 18 warnings in emergencies.
18 Q And you are assuming that through emergency 20 s information you will be able to manage or control that 21 there is just the right amount of fear and anxiety on the part of the public, correct?
23 A No. I don't believe that social scientists
,ggg can control anything. If we could, we would control 25 the stock market for a couple of years and retire after we i
_ _ . - . - ~ . . - . - . - - . -. - - - - ~a =w -
10,682 1
,,y8-Suet 1 The LILCO plan is -- what we call the LILCO plan, the on-site P
2 plan. We call the LERO plan the off-site plan, r
3 (Witness Weismantle) This covers both. The 4 'first sentence refers to the'on-site plan; the second 5 sentence refers to the EOC, which is part of the Local 6 Emergency Response Plan.
7 I thought your original question went to the 8 seccnd sentence.
9 Q You clarified that for me. With respect to the 10 second sentence, does the LILCO plan contain plans to i
11 integrate the County and State personnel into the decision- ,
i 12 making at the EOC?
13 A Yes. It indicates they would be integrated int 5 14 the decision-making. There is no long procedure, because 15 it would be impossible to write at this time, without having 16 more detail.
17 But as the plan indicates, I think in several 18 places, we would attempt to integrate the County Executive 19 or his representative, for instance, into the EOC.
20 Q So, when you say we have plans, that means you s
21 have intention?
22 A Yes. It indicates it's our intention and our 23 plan explicitly says that. It also talks about policemen, 24 for instance, who might show up and how they would be 2 handled.
.....__1.__ ._..a.._.. _ . . . . .. _ _ m. . -x__c 10,683
,9-Suet 1 How they would be integrated into the traffic 2 plan.
3 Q Let's go to Page 118. This is Dr. Mileti. You 4
state there that pre-emergency education serves as the 5 function of priming the public for a future emergency.
I f 6 Do you see that?
o
! 7 A (Witness tilleti) Yes, I do.
f t
8 Q You state on Page 117 that the accumulated l
I 9 evidence in the social sciences on the function of pre-t to emergency education and other pre-emargency education 11 efforts is clear,.although most would call it inconclusive. g i
12 You then go on to say that these studies have been unable 13 to document that pre-emergency. education efforts for ..
g 14 rare community emergencies make any real or statistical i 15 difference in terms of how the public responds in an actual 16 emergency once it occurs'.
17 Do you see that?
18 A Yes, I do.
19 Q Is it your understanding that the accumulated 20 social science evidence says that pre-emergency education s
21 is effective in serving the function of priming the public 22 for a future emergency?
23 A I think I'm the only one that uses the word 24 " prime" so I wouldn't suspect that any of the publications 25 on this topic would say that in the way you phrased it.
- 1. .- . a n . r - ~ A ** * - ' " ^ ~~ . . _ __w. a.
\ V _ _ , . .
10,804 1
,pSueT if you would look at the next document in the stack I gave 2 you, which is LILCO EP-60.
3 A Yes.
4 O And there is a Page 181 in there. And at the 5
bottom of 181, there is -- the paper reports.on a study by f 6 I Owen and Wendell, 1979, which says it was a study and an j
7 effort to understand why local officials were reluctant to i 8 i cooperate in establishing a local flood warning system, 9 local flood warning systems.
10 And the paper says that over two hundred reasons ;
11 were identified, $
and that the most important and frequent 12 of which centered on the officials' fear of the legal --
13 !
$ liabilities associated with erroneous flood predictions. I 14 A (Witness Saegert) That's what it says. .
! f 15 Q Doesn't that reflect the sort of conflict of 16 interest by public officials?
17 A Well, in this situation they are not mandated 18 legally to establish a flood warning system. And there is 19 no legal structure around it that would change the situation 20 for them.
It would remove the conflict of interest. In 21 this case, they would be acting voluntarily and no clear 22 legal structure.
23 Q
What change in the legal structure would take j l 24 care of the problem?
2 A Well, if there were a law that said there was a M hk.
I
. . . ~ . . - . . - - - - _.____-.-..- - . - -- --- ~ -
10,805 pSueT 1 process for developing a flood warning system, that every 2
county had to go through, or whatever, then I'm sure they ,
3 would not have the same fears about liability. !
And in 4 that case, then a set of procedures to evaluate the i 5 adequacy of the proposal to consider other alternative ;
6 i ways of handling floods and so on would begin to be addres-7 sed through the normal legal process. t 8 Q Same article, Page 182.
g A All right.
10 Q Now that says there, on 182, that the factors 11 involved in efforts to get people to take protective
~
12 measures against natural hazards are many and their inter-13 relationships complex.
f 14 Do you agree with that statement?
15 A You could say that about anything.
16 Q Okay. Then, it must be true about this?
17 A Yes.
18 Q Now, the same authors list, at Page 185 and 186, l 19 some of the factors they are talking about. That is, s
20 six factors about warnings that make a difference in 21 people's behavior, don't they? '
22 Look at Page 185, running over to 186?
23 A Right. !
i 24 Q And those are things like the warning must be 25 clear, the warning must convey the appropriate response,
~ _ . . . - -
W' hwe prcsontitions-on a message encouragmg populatio _
m==*- -~-'""*"" ,'""2""" *
/ n l growth control, found )o segmficant differences. However WE ROLE OF Au1HORiliEE AND there is considerable agreement that for hazard warnings "I"I"**" "
television is more effective than radio (Davenport and Waterstone.1979) and that, as with commercials, prime The focus of most hazard research is on the determina time is the best time (Haefner.1966). There is agreement message; of pubhc response to some kind of educational or warning that a variety of media should be used, as each has its own rarely is the assumed role of " authorities" l
empact (Christensen and Ruch.1978). exammed. Nevertheless. that role is a crucial one as a
'growmg number of Investigators are fmdmg. Anderson i
Sixth, the type of appeal made by the warning must be (1969), in his mvestigations of the dalforences an adaptation i assessed.
threat (or fear), There is now mounting evidence that the use of of two cities to the Tsunarm generated by the Alaskan so common to hazard messages (both I educational and warning), is often misguided. Evans et al. earthquake, found that the success of the warning (1970) have shown that af positive appeal can be more programs was detectly related to the experience asul effective in changing behaviors than a negative one; interpret the hazard themselves. training of the local officials, especially to thest abihty to
- however, this study involved improving teeth-brushing The results of Bruvold's (19781 study of consumer habats, and care must be taken in generahring its results .
attitudes toward residential water conservation programs is Hibgee's (1969) review of fifteen years of studies on theespecially to natur i
have important imphcations for the possible role of locat efficacy of threat appeals. His conclusion is much more authorities. Bruvold found that not only were the most cautious: The effectiveness of threat depends on a number '
strictly enforced programs the most effective; they were also perceived by consumers to be the fairest and therefore of factors, includmg the characteristics of the people i the most acceptable. Unquestionably such findmgs are
, threatened, the nature of the recommendation er made aft .
t the threat, and whether the threat is of a highvel.or lowle linked to the cross feeld consensus that people wdt respond to a warning-will alter thest behavior-af convinced of the j Thus, for example, if a person knows what he should do to seriousness of the problem. The involvement of civic avoid the danger and feels capable of doing it, the negativeauthority and the fact of enforcement are powerful factors 4
appeal of fear may be effective, especially if presented in so persuading the pubhc.
} immediately before the stimulus. Christensen (1979:
- 18) in their study of commumty response to natural hazard
, suggests that hazard campaigns should take a two-step warnmgs, Carter et al. (1979) found, first, that most local approach 3
agencias are not fully prepared to deal with emergencies
- i The ganeeni ongomo med 4 carnps un simundi.e ne imnisevety nese s dsecond, that there was a complete lack of retsable and, i and designed to entience pubhc awaseness about disasis commumcation capabihty between local agencies and the '
es 8
mcluihng such siums as specahc appsopsiano sosponses ae to t k tocal media, necessitating media to depend solely on when awound disastes sisehes When a disasive
. , is imminent nalsonal then hazard e tea agerictos for their infotsuditor) appens 8PP'opnaio acuon be used to peuvide she added moin,as.on to take the Owen and Wendell (1979) report on the National i
Weather Survice's efforI to understand why at was that , [
local officials were reluctant to cooperate en estabhshmg O y
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l i
LILCO Ex. 63 16th & 32ns pgs l
- b. has a tendency to co= plain about symptoms.
- c. rates his/her general level of health as poor rather than good.
- d. says he/she is a person who gets upset often.
i d 2nd Results 1 1
!!ultiple regression analysis was utilized to analyze the relationships ggveen 1) distress (upset, concern about safety and attributing symptoms to I
l pg) and 2) demographic variables, coping, sensitivity to stress and social
,gpport. Analys'es were carried out in four steps. First the relationships geveen demographic variables ,(age, sex, education, incoc:e and marital status) and the three distress measures were studied. Second, relationships between the seven coping strategies and the three distress measures were assessed holding constant (i.e. controlling for) demographic. variables. Third, relationships between the six social support and social roots cleasures and the three distress creasures were assessed holding det:ographic variables constant.
Fourth, relationships between the thirteen sensitivity measures and the three distress measures were assessed again holding constant demographic variables.
In each of the above analyses, relationships to distress in July were studied as well as relationships to change in distress from July to January.
Result s Relationships between the demographic variables and three dependent -
variables in April,1979 are reported in Table 5. Results show that younger persons, women and more highly educated persens were =ost upset during i the crisis in ifarch and April of 1979. !*.arried persess were more distressed and sin;1*e persons were less distressed than widows, separated or divorced Persons. Thus the rank ordering of distress for the three marital status groues was: married persons most distressed; widowed, separated or divorced intermediate; and single persons least distressed. It is interesting to note that wo: ten were more likely than mer ro report symotoms which they
~ );
Summary There is evidence that persons who are younger, more educated ,
married and female were especially distressed during the crisis .
However, these demographic variables did not relate to change in di t s ress over ti=e.
people who actively coped had high distress during the crisis ended and t . I to maintain that distress over time, possibly because th e situation at T:!I remained unresolved and their attempts at coping resultedon. in frustrati There were only a few indicators that social support may e to have help d moderate distress during and after the crisis.
Finally, persons with poor mental or physical health or a tendency toward self-attention and e valuation tended to have high distress scores and to maintain their di t s ress over the nine month period from April 1979 to January,1980.
One possible explanation for this finding is that people with poor physical or mental a he were lth more vulnerable to the stress of Three Mile Island. However, there are "
M alternate explanations for, these findings and it is not possible , with the data available in this study, to decernine which explanation i s correct.
l m
- - _ _ _ _ __ . . . _ . . - - . - . - - l
. . __ ___..._.._c. .u..... .. m m . _: _ .. _
10,921 ,
I f
'g, suet 1 attitudes, believe that nuclear power plants are safe, l
t il 2 believe that radiation is not as dangerous as a lot of 3 other people would believe. Therefore, these people, 4 when faced with. interpreting the information that they get, 1, ,
5 are more likely to interpret it in a way that would minimize 6 the seriousness. i 7 On the other hand,.if you have people who are 8 not associated with the utility, whethave a different mind-9 set',. ithey are. going to be inherently more able. to be 10 objective about thisa So, it's built into the very position 11 of having Company employees having to make this decision.
12 '(Witness Saegert) I would add to that that this is one of the areas in which psychologists have backed uh g l 13 14 the findings of sociologists and looked at the effect of 15 initial hypothesis and cognitive set and role and position I i
16 in an organization and found that all the things that 17 Dr. Cole alleges do occur in a controlled psychological !
18 setting. And that these are fairly predictable effects 19 that will occur out of awareness of the person. ,
20 (Witness Purcell) May I just add that again the l mind-sets, the concept of the mind-set, the ingrained be- l 21 22 lief of not great danger of nuclear power was a major con-6 23 cern of the Kemeny Commission investigation, I think a ;
l 24 major lesson to be learned, a lesson to be studied. The i i
25 Commission came'down very hard on the idea that with the l
JL
_~._ _. .._. .~. _. _. _ .c. _ _._.m_
10,927 .
i i !
event, quite aside from whether or not there is some f JusT 1 3 !
i 2 post incident audit. j i
The characterization yesterday that -- I think '
3 4 there was some discussion about cover-up and so on, just ,'
5 misses that whole - misses the point entirely.
6 JUDGE LAURENSON: Let-me just clarify that. As ;
7 I recall the testimony yesterday, Dr. Lipsky, the point ,
s I think that Mr. Mileti was making is that anybody who was
?
9 in a command and control position would have to know that .
10 when he was making decisions in this event that there would 11 he this follow-up inquiry later on, and th'at that would be l, i
12 within his knowledge at the time that he made the decision.
13 Does that change your conclusion?
{
14 WITNESS LIPSKY: I agree that's what he said. i 15 JUDGE LAURENSON: Can you speak into your 16 microphone?
i 17 WITNESS LIPSKY: We have been alluding to more !
18 subtle kinds of' concerns, excessive delay or delay in l 19 ordering the first stages of some -- of a procedure in the 20 hopes that continuing efforts to correct the situation woula 21 not -- could be contained, could make the eventuality not l l
l 22 occur. And it's our -- it's my belief, and I think the l l
23 others have testified, that this is a concern that is not 24 subject to the realization that indeed there will be 2 scrutiny of these matters during the operation, as was
'a .
g 10,928 alleged, as well as afterwards.
32-Suet t (I
l 2 WITNESS COLE: Can I add to that? What Dr.
3 Mileti says might be true if one was assuming that a
\
4 LERO person would purposely lie or purposely withhold making;a. decision. But that's not the County's position 5 i 6 at alls 7
We are not saying that LERO is going to take .
a information that should lead to a protective action re-g commendation and then purposely not do it. What we are p) saying is that because of the way'LILCO people and LERO
~
11 People.think, that they are going to interpret the data 12 differently.
13 And the fact that people know that their actions ,
l 14 are going to be looked upon with a great deal of scrutiny ,
15 later on won't change that, because they actually think i I'
H5 they are doing the right thing. It's because they are in 17 that inherent conflict of interest position that they might I 18 think they are doing the right thing but actually do the ,
19 wrong thing, an erro which would be less likely to be made ,
I m if the decision was made by a completely independent person s
21 not in that conflict of interest.
WITNESS SAEGERT: I think that just from a 22 i
23 psychological point of view, I would like to add that if 24 you expect something very strongly, you expect that your I
hN 25 chair is going to be in the place it always is in and you
- .. - - - - - . _.u._ _ . _ _ _ _
10,929 ,
7 13-suet 1 have the sense when you sit down that it isn't, your
) 2 first response is not going to be certainty. It's going ,
3 to be: Well, I had better check that out again. !
4 That's like an everyday example. But that's 5 a very strong ingrained way of thinking, that if you have (
6 a strong hypothesis it takes more evidence to disconfirm 7 it.
8 And what we are saying is that when you work 9 within a company that believes in these' kinds of things to and has no mandate, no requirement in any way, to maintain 11 skepticism as their first loyalty really, that that sort _
of habitual thinking will accumulate. And there is no way 12
) 13 that you can get out of that, because it's not some kind ..
I !
14 of a willful activity on a person's part.
BY MR. ZAHNLEUTER: (Continuing) 15 16 Q Dr. Purcell, I address this question to you. ,
17 Can you cite any relevant examples where a recommendation 18 was made during a nuclear emergency and not acted upon be-19 cause of low credibility of the information source? ;
I, A (Witness Purcell) Yes. If we once again go 20 s
21 back to the only significant historical example, the TMI {
22 accident, the Nuclear Regulatory Commission had a great ,
i 23 deal of credibility problen.3 with the Governor of 24 Pennsylvania, particularly due to the -- he had credibility i
problems with them in terms of his perception of them. And 25 l
. - - _ . _ _ - - . . .. L. .-. . :- a -- -:-
10,930 g4-Suet 1 particularly -- and that is documented, particularly after ,
t 1 2 the beginning of the accident. So, on Friday morning of g l I 3 _tha accident, based on what they considered their best 4 knowledge, the incident response team of NRC, which 5' included. Harold Denton who was later to become spokesman 6 for the Governor, sent a recommendation as per a previously j 7 laid out plan to Pennsylvania Emergency Management Agency, 8 which in turn was relayed to the Governor, that recommended 3 an immediate evacuation of the EPZ.
s.
10 The Governor, as he later testified, had noted
, l'l g
11 that' he wasn't sure that was a good source of information s
s 12 and he took a while to check on it. He was very lucky --
N ,
i q j 13 I kind of think he rolled the dice personally, but he was i
14 very lucky. En, called his press secretary. He called '
I f
is again the Manager of the Pennsylvania Emergency Management ,
IJ Agency. And eventually it' turned out that the recommenda- '
i
' 17 tion was based on a bad interpretation of data and, in 18 fact, it was not necessary to evacuate based on NRC criteria' I
i' 19
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1 10,931 g wal 1 But there was a case where there was a 2 significant delay due to -- mainly I think perhaps wholly 3 to lack of credibility of the courese of the data.
4 JUDGE LAURENSON: Let me- also ask a follow up question on that, Doctor Purcell. In light of that 5
6 example you just gave, doesn't that seem to indict 7 governmental decision makers who might be in a similar 8 position, and how would you contrast that with a LILCO 9 person under this plan?
WITNESS PURCELL: Well, I think not necessarily.
10 11 I think that it simply is an illustration of the fact when 12 you have a source with credibility problems -- aW M 13 of information witH"credibilify prW!tfesTirtethlpe "
l 14 a hesitation, perhaps, to act, and I think that is a good 15 illustration of t. hat.
16 BOARD EXAMINATION yg 17 BY JUDGE KLINE:
Q I think I want to follow up on that, too.
18 19 Because it appears to me that there is not a line that m is getting increasingly fuzzy between conflict of interest 21 or credibility of information on one hand, and genuine Zt error on the other.
m That is to say, genuine uncertainty. Now, it j 24 may well be that it is very difficult to mandate by any 25 formal structure, or insulate ourselves against error.
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4al 10,932 72 1
But what we really are after is to find a way to insulate 2 ourselves against conflict of interest.
! 3 I don't know of any way to structure a regulation
! 4 that prevents -- ultimately prevents error of some kind,
- 5 although homefully we can try to attack it. Now, in the t
6 example you gave, isn't this just a question of people 7 acting, in an ad hoc manner, and being genuinely confused.
[ 8 A (Witness Purcell) Perhaps so. But the fact r
9 is that the Governor hesitated to act not because he didn't to believe a number, per se, because he was not sure about i
11 the source of information.
12 Now, inhhhsight, of course, had he wholly 13 -- had he felt wholly comfortable with the source of 14 information, I presume he would have called for the 15 evacuation, and then it might have turned out that he 16 might have taken some heat because of that, but I think 17 the fact is that his actions, and I think the record is clearly shows, were due principally to the fact that he 19 was uncomfortable with the source of information.
20 Q Well, skepticism on information in that case 21 was well founded, wasn't it?
zt A In hindsight it was. But by the procedures Il laid out, it was a legitimate call, et cetera, 24 A (Witness Saegert) I think I would like to 3 speak to that point, if I may. I think that there are