ML20150C610
| ML20150C610 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/14/1988 |
| From: | Mccleskey K HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#188-5882 OL-5, NUDOCS 8803210112 | |
| Download: ML20150C610 (491) | |
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[f 9 D LILCO March 14, 1988 00LKETED 05Nis c
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UNITED STATES OF AMERICA
) NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )
)
l LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5 I' ) (EP Exercise)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S BRIEF ON APPEAL FROM THE FEBRUARY 1,1988 PARTIAL INITIAL DECISION ON THE EMERGENCY PLANNING EXERCISE
)
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l Hunton & Williams l 707 East Main Street
) P.O. Box 1535 Richmond, Virginia 23212 DATED: March 14,1988 l
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! a803210112 880314 2 PDR ADO.K 050
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O LILCO March 14, 1988 O
UNITED STATES OF AMERICA O NUCLEAR REGULATORY COMMISSION Before the Atomic f afety and Licensing Appeal Board O
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station, )
O Unit 1) )
LILCO'S BRIEF ON APPEAL FROM THE FEBRUARY 1,1988 PARTIAL INITIAL DECISION ON THE EMERGENCY PLANNING EXERCISE 0
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Hunton & Williams 707 East Main Street O P.O. Box 1535 Richmond, Virginia 23212 DATED: March 14,1988 lO O
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O TA BLE OF CONTENTS O
Page I N T R O D U C TIO N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 O STA T E M E N T O F F A C TS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ARGUMENT.................................................... 10 I. The Licensing Board Erred by Not Conducting the Limited Review Ordered by the Commission in CLI-86-11. . . . . . . . . . . . . . . 10 O
A. The LicensingBoard Incorrectly Applied the Funda-mental Flaw Standard Set by the Commission in C LI- 8 6 - 1 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
- 1. The Board's Sliding Standard for "Fundamental o Flaw"..................................... 10
- 2. Contentions Improperly Admitted . . . . . . . . . . . . . . . . 20
- a. Rumor Control EX 39 . . . . . . . . . . . . . . . . . . . . 20 g b. Training EX 5 0 . . . . . . . . . . . . . . . . . . . . . . . . . 21
- 3. Inconsistent Application of the Board's Funda-mental Flaw S tandard . . . . . . . . . . . . . . . . . . . . . . . . . 22
- a. Mobilization EX 4 0 . . . . . . . . . . . . . . . . . . . . . . 23 O
- b. Public Information EX 38 and 39 . . . . . . . . . . . . 27
- 1) E N C A ctivities . . . . . . . . . . . . . . . . . . . . 28
- 2) The Board's Conclusions . . . . . . . . . . . . . 31 O
a) Timely EBS Copies . . . . . . . . . . . . 31 b) Responses During Press B riefings . . . . . . . . . . . . . . . . . . . 32 O c) EB S M essa ges . . . . . . . . . . . . . . . . 34 d) Shadow Phenomenon . . . . . . . . . . . 25
- c. Training E X 5 0 . . . . . . . . . . . . . . . . . . . . . . . . . 36 B. The Board Exceeded Its Jurisdictional Authority in O Admitting Certain Evidence and in Rendering Its Final Decision ................................... 38 0
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- 1. The Board Failed to Treat the Prior Emergency Planning Litigation as Final Agency Action . . . . . . . . . 40
- a. Impediments EX 41 . . . . . . . . . . . . . . . . . . . . . . 40 O b. Mobilization EX 4 0 . . . . . . . . . . . . . . . . . . . . . . 42
- c. Public Infarmation EX 38 and 39 . . . . . . . . . . . . 44
- d. Training EX 5 0 . . . . . . . . . . . . . . . . . . . . . . . . . 44 O 2. The Board Erred in Falling to Base its Funda-mental Flaw Determinations Solely on Factual Evidence from the February 13 Exercise . . . . . . . . . . . 46
- 3. The Board Improperly Construed the Decision in the Planning Litigation to Grant It Unlimit-g ed Jurisdiction Over Training Issues . . . . . . . . . . . . . . . 49 II. The Board's Decision Is Not Supported by Substantial Evi-den ce in t he R ecord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 A. There Is No Basis for the Fundamental Flaw Findings O n Com munica tions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
- 1) EOC Communications: The Impediments . . . . . . . . . . . 51
- 2) E NC Communica tions . . . . . . . . . . . . . . . . . . . . . . . . . 59 i
g 3) Lateral Communications . . . . . . . . . . . . . . . . . . . . . . . 60
- 4) Communications As a Training Problem . . . . . . . . . . . . 60 B. There Is No Basis for the Board's Conclusion that the Training Program Is Fundamentally Flawed .............. 61 III. The Board Failed to Articulate Its Rationale With Sufficient Clarity and Precision ................................... 63 CONCLUSION .................................................. 69 0
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l O l TABLE OF AUTHORITIES Page O
Federal Decisions Greater Boston Television Corporation v. FCC, 444 F.2d 841 (1970) . . . . . . . . . 64, 65
.O L ng Island Lighting Co. v. County of Suffolk,628 F. Supp. 654
( E . D . N .Y . 19 6 S ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Permian Basin Area Rate Cases, 390 U.S. 747 (1968) . . . . . . . . . . . . . . . . . . . . . . . 65 Union of Concerned Scientists v. NRC,735 F.2d 1437 (D.C. Cir.1984),
o cert. denied, 4 69 U.S.1132 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim WAIT Radio v. FCC, 418 F.2d 1153 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Wingo v. Washington, 395 F.2d 633 (D.C. Cir.1968) . . . . . . . . . . . . . . . . . . . . . . . . 65 O
NRC Decisions Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant),
LBP-85-49, 22 N RC 899 (1985) . . . . . . . . . . . . . . . . . . . . . . . . 14,18,19,31,46 O
Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant),
LB P-86-11, 23 N R C 2 9 4 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 37, 38, 48 Long island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LB P-8 2-115,16 N R C 1923 (19 82) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
'O Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
l A L A B-788, 2 0 N RC 1102 (198 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
A L A B-818, 22 N RC 651 (1985) . . . . . . . . . . . . . . . . . . . . . . . ........... 5
!O j Lop o Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
! LB P-8 5-12, 21 N R C 6 4 4 (19 85) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim l
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LB P-85-31, 2 2 N R C 410 (19 85) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
'O Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
l A L A B-8 32, 23 N RC 135 (198 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 l
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-iv-J Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
A L A B-8 4 7, 2 4 N R C 4 2 (19 8 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
C LI-8 6-11, 2 3 N R C 3 7 7 (198 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim O
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
C LI-8 6-11, 2 4 N R C 22 (198 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-87-32,26 NRC ( Dec . 7 , 19 8 7 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6 O
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-88-2, 28 NRC ( Feb. 1, 19 8 8) . . . . . . . . . . . . . . . . . . . . . . . . . . passim Northern States Power Co. (Prairie Island Generating Plant, Units 1 and 2), A L A B-10 4, 6 A E C 17 9 (197 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 O
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-82-70,16 NRC 756 (1982) ............................ 11 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),
A L A B-4 2 2, 6 N R C 3 3 (19 7 7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64,65,69 O
Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2),
A L A B-7 8, 5 A EC 319 (197 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Regulations 0
10 C .F. R . S 5 0.5 4(s)(2)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,18 10 C . F . R . 5 2. 7 6 2 (d )( 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 10 C.F.R. S 2.734 15 O ................................................
Miscellaneous Q NUREG-0654 ................................................ 20,29 Consolidated RAC Review (Dec. 15, 1986) ............................... 8 45 Fed. Reg. 55,402 (Aug.19,1980) ................................... 11 0 46 Fed. Reg. 61,134 (Dec.15,1981) ................................... 11 O
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-v-0 4 7 Fed. Reg. 3 0,2 32 (July 13, 19 8 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,13 4 8 Fed. R eg. 16,691 ( A pril 19,198 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 5 2 Fed. Reg. 4 2,0 7 8 (Nov. 3, 19 8 7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 O
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-vi-O IDENTIFICATION OF ERRORS OF FACT OR LAW THAT ARE THE SUBJECT OF THE APPEAL General O
- 1. The Board adopted an improperly broad definition of a "fundamental flaw" that did not comport with the Commission's mandate in CLI-86-11.
- 2. The Board did not apply its overly-broad standard for a "fundamental flaw" in a consistent manner throughout its decision.
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- 3. The Board failed to articulate with sufficient clarity and precision the bases and reasons for its conclusions.
- 4. The Board's all-encompassing "communications" "fundamental flaw" is based on isolated and unrelated events that do not reveal a systemic or pervasive pattern.
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- 5. The Board's conclusion that LERO is composed of "amateurs" who may never reach a satisfactory performance is factually baseless and ignores the testimony of expert FEMA witnesses that the LERO performance was comparable to that at other first exercises.
O Contention EX 41 (Response to Impediments)
- 6. The Board's finding that the LILCO Plan is "fundamentally flawed" because it dor . not permit lateral communications among field workers lacked f actual basis and failed to treat the prior emergency planning decision as res judicata.
O . The 30ard erred in finding a "fundamental flaw"in LERO's response to two road-Ty impediments based solely on the problems created by a single exercise par-ti .ipant.
- 8. The Board improperly based its finding of a "fundamental flaw" in LERO's re-sponse to two roadway impediments on actions taken in post-exercise drills rath-
.O er than during the Shoreham exercise.
Contention EX 40 (Staffing of Traffic Control Posts)
- 9. The Board's finding of a "fundamental flaw" in mobilization of LERO Traffic Guides ignored proffered testimony on the significance of the mobilization delays Q on public health and safety.
- 10. The Board incorrectly based its "fundamental flaw" decision on non-exercise-related testimony that was prev!ously considered and rejected during the prior emergency planning litigation.
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Contention EX 38 and 39 (Public Information)
- 11. The Board erred in admitting Contention EX 39 (Rumor Control) because the Contention's alleged factual bases, even if accepted as true, did not establish the requisite degree of effect on public health and safety to constitute a "fundamen-g tal flaw."
- 12. The Board found "fundamental flaws" in the public information area without re-gard to the public health and safety consequences of the identified exercise problems.
g 13. The Board's "fundamental flaw" finding was partly based on a criticism of prescripted EBS messages that were reviewed and accepted during the prior planning litigation.
Contention EX 50 (Training) 0 14. The Board erred in admitting Contention EX 50 (Training) bec u;se the facts al-leged, even if accepted as true, did not establish a sufficient p attern for finding a fundamental flaw in the LERO training program.
- 15. The Board misapplied its fundamental flaw test in concluding that the LERO training program was "fundamentally flawed."
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- 16. The Board improperly based its conclusion that the LERO training program was fundamentally flawed on arguments that were considered and rejected in the prior planning litigation.
- 17. The Board based its conclusion that the LERO training program was fundamen-O tally flawed largely on events that did not occur on the day of the Shoreham ex-ercise.
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O INTRODUCTION O
Pursuant to 10 C.F.R. 5 2.762(b), the Applicant Long Island Lighting Company (LILCO) submits this brief supporting its position on appeal from the Atomic Safety and 4 Licensing Board's "Initial Decision (Emergency Plan Exercise)" (the "PID"), dated February 1,1988. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-88-2, 27 NRC (Feb.1,1988).M In the PID, issued almost two years af ter the C emergency planning exercise it considers, the Licensing Board concluded that the February 13,1986 Shoreham exercise demonstrated fundamental flaws in the Shoreham offsite emergency plan relating to (1) communications within the EOC, among field O workers, and at the ENC; (2) timely staffing of traffic control posts; and (3) training.
PID at 251-52.E For the reasons stated below, these determinations should be re-versed.
O The Licensing Board had before it 3,218 pages of pre-filed testimony on 13 num-bered contentions, all with subparts, from 34 witnesses who were cross-examined dur-ing 53 hearing days, resulting in 8,694 pages of transcript and 149 exhibits. Seven O months af ter the hearings ended, the Licensing Board issued a 263 page opinion on the exercise that did not precisely define "fundamental flaw," apply the "fundamental flaw" concept as articulated by the Commission in CLI-86-11, state clearly what the "funda-O mental flaws" are in the LILCO Plan, or describe the reasons why the asserted defects are "fundamental flaws" at all.
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.O y The Licensing Board's December 7,1987 Partial Initial Decision addressed Con-tentions EX 15,16, and 21 on the scope of the exercise. Long Island Lighting Co.
1 (Shoreham Nuclear Power Station, Unit 1), LBP-87-32, 26 NRC (Dec. 7,1987).
l That decision is the subject of a separate appeal now pending before this Board.
2/ These are the "fundamental flaws" summarized at the end of the PID. There are lO various other discussions of matters apparently considered to have constituted "funda-mental flaws." See PID at 3-4, 62-64, 84-88, 157-50, 161-68, 170-71, 183-84, 215-17, 231-33, 250-52. It is of ten unclear from the opinion which events supported a particu-l lar flaw, or even what the flaw was.
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O The Licensing Board focused, as Intervenors did, on a series of isolated perfor-mance problems on the day of the exercise, rather than on whether any "fundamental flaw" in the emergency plan itself had been revealed by the exercise. In doing so, the O
Board went outside the mandate set for it by the Commission. It admitted contentions that did not meet the threshold test of "fundamental flaw" defined by the Commission in its threshold guidance for the Shoreham exercise proceeding. CLI-88-11,23 NRC 577
'O (1986). It used a definition of the nonregulatory term "fundamental flaw" that was inore expansive than either Union of Concerned Scientists v. NRC,735 F.2d 1437 (D.C.
Cir.1984), or the Commission's guidance in CLI-86-11. It then applied its own defini-O tion without regard to the effect of given exercise problems on public health and safety
- the very core of the Commission's "fundamental flaw"standard. It revisited planning issues that had been previously litigated, had become the subject of final agency action, O
and were not affected by exercise events. It improperly relied upon post-exercise training reports to support its "fundamental flaw" conclusions on training issues. It ig-nored the Commission's realism rule, 52 Fed. Reg. 42,078 (Nov. 3,1987), in drawing its O
conclusions. And it prepared an opinion that f ailed to articulate its rationalla with req-uisite clarity and precision.
In determining the "communications flaw," for example, the Licensing Board fo-O cused primarily on one event sequence: the inaction of one person, the Evacuation Route Coordinator, following his receipt of the free-play messages. His inaction, how-ever, was an isolated performance problem on the day of the exercise. Indeed, the O
Board concluded that, af ter FEMA notified the Evacuation Coordinator of the impedi-ments, LERO's response to them was adequate. Yet the Board took the Evacuation Route Coordinator's inaction and, without explanation, parlayed that single individual's O
response into two "fundamental flaws," one in communications and the other in the training program.
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The Board grouped isolated problems in exercise response throughout the day under the organizational heading "communications" in an attempt to support its find-ings. But it grouped items that are inconsistent in kind under this heading. For exam-O ple, it is true that Rumor Control workers and media representatives did not receive timely copies of EBS messages because copiers at the Emergency News Center broke down. In a gross sense, that breakdown was a "communications" problem. But the in-O ability to provide timely copies of EBS messages at the ENC was not reltted in any way to the Evacuation Route Coordinator's actions at the EOC. And neither event shared common characteristics with the Board's criticisms of a few phrases in the sample EBS O
messages included in the LILCO Plan. There was no record basis for a finding of root "communications" problems from these isolated, unrelated events.
As to training, the Board used that category as a catch-all for every imperfect action, no matter what its seriousness, during the day of the exercise. Nowhere in its 263 page decision did the Licensing Board explain why these undifferentiated perfor-mance inadequacies revealed a "flaw" in the LERO training program. The Board in-O stead satisfied itself by stating that those performance "flaws""probably" reflected an inadequate training program. S_ee, e.g., PID at 232-33. The bare conclusion by the Board seems to have beer. that any performance deficiency reflected a training prob-
[ lem. That conclusion is ne .ar intuitively apparent nor explained in the Board's opin-ion. Nor did the Board explain how the LERO training program was "fundamentally flawed" in light of the fact that expert FEMA witnesses, who had observed numerous O exercises, testified that LERO's performance was comparable to that at other first ex-eccises.
l The Licensing Board also found a "flaw"in the Plan with regard to the mobiliza-
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' tion of LERO Traffic Guides. But one of the three staging areas followed the LILCO l
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o Plan and mobilized within the time allotted in the Plan; at the other two staging areas 1 1
the mobilization, while not completely timely, was substantially so. The Board did not explain how, when one out of three staging areas met the mobilization times, and the delays at the other two were known and limited in extent, those delays indicated a "fundamental flaw" in th3 Plan itself. And the Board excluded entirely any considera-tion of the effect on public health and saf ety that tardy mobilization might have had.
O Finally, the Licensing Board inexplicably included in its decision gratuitous dis-cussions regarding its fears and doubts about any other than a conventional governmen-tal organization implementing an emergency plan effectively. For example, the ques-O tion of whether in the abstract a utility plan could be effective was litigated at length in this proceeding, and it was determined that it could be. It was inappropriate for the Licensing Board to retroactively surmise otherwise, particularly af ter having ignored rJ;
.O irrelevant testimony that compared the Shoreham exercise results to other FEMA-graded exercises, which established LERO's performance as comparable.
What the Licensing Board did in its decision on the February 13, 1986 exercise
'O was conduct a de novo review of emergency planning for Shoreham. Coming at the end of five years of emergency planning litigation, the Board's 263 page opinion was not well placed. The Licensing Board in effect subjected LILCO to a kind of civil double O
jeopardy.
STATEMENT OF FACTS On June 20,1985, the NRC Staff, at LILCO's request, asked FEMA to conduct an exercise to test offsite emergency preparedness at Shoreham based upon the LILCO Plan.W On February 13, 1986 a team of 38 federal evaluators observed and graded O
3/ Emergency preparedness for Shoreham has been in virtually continuous litigation before the NRC since 1982. Onsite preparedness was addressed in "Phase One" of the (Footnote Continued) lO
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LERO's performance pursuant to that Plan, in a one-day exercise held between 5:30 a.m. and 4:00 p.m. TM exercise was designed and intended by LILCO and FEMA to be
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Shoreham emergency planning proceeding, when Intervenors Suffolk County, the Shoreham Opponents Coalition, the North Shore Coalition, and the Town of Southampton raised issues about LILCO's onsite emergency plan, as well as those ele-lO ments of offsite preparedness for which LILCO has responsiblity and which could be lit-igated at that time, before the preparation of an offsite plan. Those matters were re-solved in November 1982 when the Intervenors refused to go forward with the litigation and were held in default. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-115,16 NRC 1923 (1982).
lO Offsite preparedness was extensively considered in Licensing Board proceedings in 1983 through 1985 ("OL-3 Board"). Intervenors Suffolk County, the Shoreham Oppo-nents Coalition, the Town of Southampton, the North Shore Coalition, and New York State raised issues regarding virtually every aspect of the LILCO Plan. Af ter hearing 86 witnesses during 80 days of hearings, amassing a record of over 15,714 transcript l pages plus 7,519 pages of pre-filed written testimony, the OL-3 Board issued a partial initial decision on offsite emergency planning. See Long Island Lighting Co. (Shoreham ,
lO Nuclear Power Station, Unit 1), LBP-85-12,21 NRC 644 (1985). That decision included l
findings of fact and conclusions of law on issues of human behavior, credibility, conflict of interest, EPZ boundary, LERO workers, training, notification, information to the public, sheltering, protective action recommendations, evacuation, special f acilities, schools, ingestion pathway, loss of offsite power, strike by LILCO employees, and legal O authority. Af ter further hearings on relocation centers, the OL-3 Board issued a concluding partial initial decision on emergency planning, ruling on the relocation cen-ter issues and on whether the LILCO Pian provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency at Shoreham. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
LBP-85-31,22 NRC 410 (1985). The Board held that there is not "anything unique about O the demography, topography, access routes or jurisdictional boundaries in the area in which Shoreham is located. To the contrary, the record f alls to reveal any basis to con-clude that it would be impossible to fashion c d implement an effective offsite emer-gency plan for the Shoreham plant." I_d. at 427. The Board noted that it was unable to find reasonable assurance, largely due to Suffolk County's and New York State's refusal to participate in emergency planning. Ld. Portions of these decisions on offsite emer-O gency planning were appealed. For the most part, these appeals were denied and the Licensing Board's decision has become final agency action; certain aspects, including those involving LILCO's legal authority to implement its plan under the "realism" and "immateriality" theories, were reviewed by the Commission and were remanded for fur-ther consideration before another licensing board, where they are now pending. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1) CLI-86-13,24 NRC O 22 (1986); ALAB-832, 23 NRC 135 (1986); ALAB-847, 24 NRC 42 (1986); ALAB-818, 22 NRC 651 (1985).
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.O 6-O sufficient to satisfy the Commission's licensing requirements for nuclear plants. The State of New York refused to take any part in the exercise. The only involvement by Suffolk County was an attempt to block the exercise by enacting a criminal ordinance o
against participation in it. The ordinance was enjoined as unconstitutional some sixty hours before the exercise. Long Island Lighting Co. v. County of Suffolk, 628 F. Supp.
654 (E.D.N.Y.1986).
O The February 13, 1986 exercise of the Shoreham offsite emergency plan was, as the Licensirig Board acknowledged, "as comprehensive as any conducted in FEMA Re-gion II up to that time." Long Island Lighting Co. (Shoreham Nuclear Power Station, O
Unit 1), LBP-87-32, 26 NRC , slip op. at 51 (Dec. 7,1987). The exercise objectives, which had been set by FEMA and approved by the NRC Staff, included 2dl of the 35 FEMA exercise standard objectives and seven additional objectives not included within C
the 35 standard objectives. The standard objectives not included in the exercise were excluded at FEMA and NRC direction; during the scenario preparation, LILCO expressed its willingness to demonstrate any and all of the standard objectives. See LILCO EX 15 and 16 Testimony at 18; Tr. 6837 (Daverio).E The Shoreham exercise included unprecedented involvement of emergency workers. A full complement of over 1,100 emergency response workers from the O
Shoreham Local Emergency Response Organization, consisting of LILCO employees and
- 4/ The number of FEMA standard objectives exercised at Shoreham varies depend-
'O ing upon how one counts them. This matter was addressed in detailin LILCO's Appeal Brief on Contentions EX 15 and 16. Appeal Brief at 12 and n.16 (Jan.19,1988).
!/ Pursuant to 10 C.F.R. 5 2.762(d)(1), portions of the record upon which LILCO relles in support of its assertions of error are included in a one-volume attachment to this brief. Portions of the record pertinent to Contentions EX '.S and 16 were sub-
'O mitted as an attachment to LILCO's Appeal Brief on Contentm,15 and 16, dated January 19, 1988.
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( O contractors, working with support organizations such as the American Red Cross, the U.S. Coast Guard, the U.S. Departmont of Energy, and various bus, ambulance, and other service companies, participated. M1 LERO personnel called for in the LILCO c
[ plan were actually mobilized during the exercise and, as the scenario dictated, were dispatched to perform their emergency functions to the maximum extent possible with-out affecting the general public. Thus, c'uring the exercise all 165 traffic guides LO specified in the LILCO Plan were sent to their traffic control posts with all necessary traffic control equipment. All 333 bus drivers for evacuation of the transit-dependent population in the Shoreham EPZ drove to their assigned bus routes either in actual O buses or their own cars. LILCO EX 15 and 16 Testimony at 18-19. Sixty route alert drivers were mobilized. LILCO EX 21 Testimony at 8-11. All LERO facilities, including the Emergency Operations Center (EOC), the Emergency News Center (ENC), the three O
staging areas (Port Jefferson, Riverhead, and 9atchogue), the Emergency Worker Decontamination Facility (EWDF), and the general population reception center were l activated. See FEMA EX Exh.1 at x-xix,9-24.
O In addition, the Coast Guard received notification from and communicated with LERO on both the primary and back-up communications modes throughout the exercise, l
l simulated establishing a maritime safety zone for the water part of the EPZ, and simu-O lated making an emergency radio broadcast to all ships on the distress frequency. They also dispatched a patrol boat. LILCO EX 15 and 16 Testimony at 33-34. Bus and ambu-lance companies were tested. FEMA EX Exh.1 at 20-21. Ambulance drivers were dis-O patched to simulate the evacuation of special facilities. FEMA EX Exh 1 at 43. The American Red Cross participated by activating and manning two congregate care cen-ters and by providing a Red Cross Coordinator, v'ho was at the LERO EOC. LILCO ,
O EX 15 and 16 Testimony at 42-43. The Department of Energy sent field monitors to simulate sampling techniques in the field. FEM A EX Exh.1 at 20.
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O in short, the exercise scenario included the mobilization of approximately 1,100 LERO workers, the activation of all LERO facilities, and a simulated response to the exercise scenario that escalated accident events over a period of about 11 hours1.273148e-4 days <br />0.00306 hours <br />1.818783e-5 weeks <br />4.1855e-6 months <br />. This response involved virtually every facet of the LILCO Plan, and literally thousands of communications within each LERO facility, between the facilities, and among LERO and other organizations. FEMA witnesses stated that the exercise was "equal to or greater in scope" than other Region II "full participation" exercises, both in terms of LERO personnel mobilized and in terms of the number of FEMA standard objectives tested. FEMA EX Testimony at 105; Tr. 7545-46 (Kowleski).
The results of the exercise are sot forth in a post-exercise assessment issued by the Federal Emergency Management Agency on April 17,1986 ("FEMA Report" or "FEMA EX Exh. 5"). In its report, FEMA listed four deficienc!es resulting from the ex-ercise.N FEMA did not reach an overall finding regarding the February 13,1986 exer-cise.
In a motion dated March 7,1986, Intervetiors requested that the Commission ad-O vise the parties to this proceeding of their procedural responsibilitics concerning any hearings on the February 13, 1986 exercise. LILCO and the NRC Staff responded later at montn; LILCO requested the appointment of a Board to haar the exercise-related matters and conduct expedited hearings. Three months later, on June 6,1986, the Commission ordered "immediate initiation of the exercise hearini *o consider evidence j which Intervenors might wish to offer t: _.ow that there is a fundamental flaw in the 10 l
l 6/ The FEMA Post-Exercise Assessment dated April 17, 1986 listed five deficienc-les. However, as part of its report on Revislans 7 and 8 to the LILCO Plan, which were designed tc, fix exercisa problems, the FEnf A Regional Assistance Committee down-lg graded one exercise "deficiency" to an "area requiring corrective action." FEMA Con-
! solidated RAC Review, Table 3.6, at 1-4 (Dec.15,1986).
10 1
1 _ .. _ _ . _ - --__- --. _ . _ _ . - - - - _ - - .
O L'LCO Emergency Plan;" dhected the chairman of the Atomic Safety and Licensing Board Panel to appoint a Board to do so, mappointing members cf the earlier Board if available; and d!Jected the newly-appointed Board "to expedite the hearing to the maxi-
'Q mum extent consistent with fairness to the parties, and to issue its decision upon the completion of the proceeding." Long Island Lighting Co. (Shoreham Nuclear Power Sta-tion, Unit 1), CLI-86-11,23 NRC 577,582 (1986).
40 The litigation of the exercise issues proceeded. On August 1,1986, the Interve-
, nors submitted 162 pages of contentions, numbered one through 50 and each with nu-merous subparts. Af ter initial winnowirig and consolidation by the Board, the final, "of-e fiolal" version of the contentions admitted by the Boaro was some 104 pages long. The hearings on the remalrdng contentions began on March 10,1987, nine months af ter the Commission's order in CLI-86-11 for expedited hearings, and continued over the course
- O of fc.tr months, until June 18,1987, when the record was closed.
Out of the vast array of exercise activities and the extensive record LILCO was required to develop to respond to the expansive contentiors admitted, the Licensing O Board focused on these few, isolated events: an Evacuation Route Coordinator's failure to pass on impediment messages at the EOC; mechanical failures of two copying ma-chines at the ENC; two answers from a LERO sNkesperson at the ENC which the D Board viewed es incomplete, taken from a day's press briefings; two remarks from a Brookhaven National Laboratory scientist at the ENC; mobilization times for some of the LERO Traffic Guides (without regard to the public safety effect their tardiness O might or might not have had); the f ailure of a few field workers to exactly follow their assigned routes and to read their dosimetry; and three phrases from EBS messages. The Licensing Board's conclusion that the exercise revealed "fundamental flaws" in the O Shoreham plan rested largely on these few activities culled from 11 hours1.273148e-4 days <br />0.00306 hours <br />1.818783e-5 weeks <br />4.1855e-6 months <br /> of exercise simulatica by over 1,100 people.
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ARGUMENT I. The Licensing Board Erred by Not Conducting the Limited Review Ordered by the Commission in CLI-86-11 0
The Licensing Board professed to adopt the "fundamental flaw" test of CLI-86-11 in this proceeding. However, a closer review of its decision reveals that, as a practical o matter, the Board failed to stay within its jurisdictional mandate, and as a result l (1) adopted an improperly broad definition of a "fundamental flaw," (2) applied that standard inconsistently throughout its opinion, of ten without regard to the public health o and safety effects of a given exercise event, (3) revisited issues that had been resolved during the prior planning litigation and that were not affected by exercise events, and l
(4) conferred upon itself unfettered jurisdiction to consider yet again the LERO training
.O program. In short, the Board put itself in the tole traditionally reserved to FEMA and the NRC Staff as evaluators of exercise performance, all without benefit of FEMA's and the Staff's experience and without having attended the exercise.
9 A. The Licensing Board Incorrectly Applied the Fundamental Flaw Standard Set by the Commission in CLI-86-11
- 1. Tne Board's S11dinst Standard for "Fundamental Flaw" LILCO agrees with the Licensing Board that its charge was to determine wheth-O er there were any "fu'idamental flaws"in the LILCO Plan disclosed by the exercise liti-gation. LILCO disagrees with the Licensing Board 1.1 important respects, however, about what the term "fundamental flaw" means.
O LILCO defined a "fundamental flaw" at hearings as folicws:
A fundamental f'aw is a pervasive, systemic, conceptual flaw in a plan that, because it substantially affects public health and safety, would prevent issuance o' - 'icense if lef t O untended. A fundamental flaw is not readL. cerectable by equipment or training or simple, straightforward plan changes, but requires more basic changes to a plan because it is a fundamental defect in the way an emergency plan is conceived.
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PID at 7. LILCO urged the Board in findings to apply a three part test in determining whether a fundamental flaw had been established: (1) Was the alleged flaw fundamen-tal, that is, would the ulleged flaw have substantially affected the health and safety of O
the public? (2) Was the problem identified systemic or pervasive, rather than merely one or more isolated problems occurring on the exercise day 7 And (3) was the problem susceptible of correction only through substantial, potentially far-reaching revision of O
the written erargency plan, rather than readily correctable changes such as additional training or the purchase of new equipment? LILCO Pronosed Findings at 8-9, Aug. 3, 1987.
O LILCO's "fundamental flaw" concept is well grounded in Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.1984) and the Commission decisions flowing from it. Following the promulgation of the Commission's detailed emergency planning O
regulations in August 1980, 45 Fed. Reg. 55,402 (1980), emergency plan exercises were initially treated as essentially confirmatory items that were only on rare occasions sub-ject to litigation. S_ee, e&, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power
'g
! Plant, Units 1 and 2), LBP-82-70,16 NRC 756 (1982). Indeed, in December 1981, the Commission proposed a rulemaking that defined exercises as part of the pre-operational inipection process but not a necessary element for an initiallicensing decision. 46 Fed.
10 i Reg. 61.134 (1981). In proposing this change, the Commission discussed its views of ini-tial exerciseF:
The nature of NRC's regulatory oversight should be more or lO less constant throughout the license term, and there should be no special significance attached to the actual state of im-plementation preparedness at the time just prior to license frauance . . . . Of course, there should be reasonable assur-ance prior to license issuance that there are no barriers to emergency planning implementation or to a sattsfactory Q state of emergency preparedness that cannot fewbly be re-moved.
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Id. at 61,135 col.1. In July 1982, the Commission adopted the rule change, noting as a basis the predictive nature of its review of emergency plans and emergency prepared-ness. 47 Fed. Reg. 30,232 (1982).
O The Union of Concerned Scientists petitioned for reconsideration of that rule. In oenying the petition, the Commission provided a more detailed explanation for its deci-sion to exclude exercises from litigation prior to initial license issuance. The Commis-O sion began by reiterating that Licensing Board findings on emergency planning issues are predictive in nature and added:
The full-scale exercise is actually an indicator of two O factors: the state of emergency preparedness at the time the exercise is conducted, and whether the emergency plan and the planning process are fundamentally sound. If the outcome of the exercise showed that the plan and the un-derlying judgments about its adequacy and capability of im-plementation were seriously flawed - as opposed to details O of its implementation in that exercise not reflecting on the l overall adequacy of the plan and its capability of imple-mentation - reopening of the hearing record might be ap-propriate, coupled, of course, with delay of the full power authorization.
l O **** ,
Moreover, deficiencies in the full-scale offsite exer-cise would not be suitable subjects for the adjudicatory setting. As explained above, the function of the licensing board is to determine whether the emergency planning ef-lO forts reflected in the plan and its underlying bases and re-I view meet the Commission's regulations. If some detail of a plan, e_.L. a hard telephone link to a State emergency office, does not operate properly during the exercise, the approprl-ate action is to remedy the problem by concrete action, not hold a hearing and hear the testimony of experts on why the 10 system f ailed on tne day in question. If it should occur, how-l ever, that some key aspect of the plan turns out to be inade-
! quate or unworkable, or the judgments reflected in the plan-l ning process are untenable, or major revisions will be necessary, the hearing could be reconvened upon a showing that the Commission's standards for reopening have been O met.
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48 Fed. Reg. at 16,693 cols.1 and 2.
The Union of Concerned Scientists challenged the rule in the U.S. Court of Ap-peals for the District of Columbia. On May 25,1984, the court vacated the rule. Union ,
O of Concerned Scientists v. NRC, 735 F.2d 1437 (f .C. Cir.1984), cert denied, 469 U.S.
1132 (1985). There, the Court ruled that the NRC must afford the opportunity for a hearing on the results of emergency planning exercise.s because the Commission regards O
the exercise as a material factor in making its licensing decisions. While the court re-jected the NRC's arguments that the exercises should be treated as part of preoperational testing of nuclear plants and therefore should be conducted in the post-
'O adjudicatory phase of licensing, % at 1441,1447, the court accepted the NRC's charac-terization of the role of exercises in the licensing process. The NRC argued, and the court accepted, that the exercise comes at the end of a long process of review and O
evaluattan, including adjudicatory hearings, about the state of emergency planning at a l
l power plant. Ld. The confirmatory nature of exercises was recognized in the rule pro-mulgated by the NRC and subsequently successfully challenged in the UCS case. The 10 court explained that The Commission distinguished such fundamental defects jus-tifying reopening of a hearing from those "which only re-flect the actual state of emargency preparedness on a par-O ticular day in question."
@ at 1441, quoting 47 Fed. Reg. 30,233 (1982). Emphasizing the fundamental nature of the defects to be identified in an exercise, if any, the court went on to note:
O Although in any particular licensing proceeding, the exercise may not raise any material issues about the adequacy of the preparedness plans, the Commission cannot and does not argue that assessment of these e::ercises is immaterial to its licensing decision.
i
!O & at 1445 (empharis added). Thus, the case turned upon the Commission's concession that the exercise asses:. ment could be a material f actor in licensing decisions.
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The Commission argued througLcut !!1 brief in Un'on of Concerned Scientists that exercises should be treated as part of the preoperational testing of nuclear plants in the post-adjudicative phase of licensing, % at 1446, and that "the exercise is only n
relevant to its licensing decision to the extent it indicates that emergency prepared-ness plans are fundamentally flawed, and is not relevant as to minor or a_d hoc problems occurring on the exercise day." & at 1448. The court, while rejecting the Commis-O sion's proposed procedure, nevertheless accepted the Commissicn's proposed substan-tive test. In ruling that the NRC must afford interested parties an opportunity for a hearing on an exercise, the Court stated that it "in no way restrict (s) the Commis-O sion's authority to adopt this (fundamental flaw) as a substantive licensing standard,"
and noted that "[u]nder that standard, the NRC could summarily dismiss any claim that did not raise genuine issues of material fact about the fundamental nature of the emergency preparedness plans."II Ld. The court emphasized that "emergency pre-paredness exercises . . . are evaluated to ensure that they do not reveal any fundamental inadequacies in the nature or implementatior. capacity of emergency pre-O paredness plans." & at 1451 (emphasis added).
Following the decision in UCS, the NRC considerN exercise results in Carolina Power & Licht Co. (Shearon Harris Nuclear Power Plant), LBP-85-49, 22 NRC 899 lO (1985). There, the Licensing Board adopted the "fundamental flaw" test articulated in i
l UCS:
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1/ Even so, the dissent in UCS clearly and prophetically pointed out the possibilities O
for delay inherent in such litigation. UCS, 735 F.2d at 1454-56 (MacKinnon, J., oissent-ing).
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we think these (exercise] contentions should be considered in light of the fact that they are arising at the end of a lengthy public evaluation process - a process designed to surface serious planning defects - and relatively close to the expected operation of the facility.
O Id. at 909. And in appointing a Licensing Board to consider the results of the Shoreham exercise, the Commission reiterated its intent to limit the scope of exereire litigation to an examination of whether "fundamental flaws" were revealed during the exercise:
O Under our regulations and practice, Staff review of exercise results is consistent with the predictive nature of emergen-cy planning, and is restricted to determining if the exercise revealed any deficiencies which preclude a finding of rea-sonable assurance that protective measures can and will be O taken, i.e., fundamental flaws in the plan. Since only funda- i mental flaws are material licensing issues, the hearing may be restricted to those issues.
Long Island Lighting Co. (Shoreham Nuclear Power Station Unit 1), CLI-86-11, O 23 NRC 577,581 (1986)(emphasis added).
i Thus, the UCS case establishes the baseline for determining whethcr there exists l
a "fundamental flaw". It is clear from UCS, Sh_earon Harris, and CLI-86-11 that the O court and the NRC recognized that an exercise came at the end of a long process of 1
regulatory and adjudicatory review of emergency plans; that the concept of exercise litigation should be reviewed broadly with an eye toward whether the exercise disclosed O major, fundamental problems in an emergency plan sufficient to justify reopening a hearing record; and that the NRC was content to apply the much stricter reopening standard before litigating an exercise.E Clearly it was contemplated that it would be a O rare case indeed in which a "fundamental flaw"in an emergency plan would be Iavealed 8/ That standard, set out at 10 C.F.R. S 2.734, permits reopening only upon tiraely raising of a "significant" safety or environmental issue and then only upon "de-O monstrat(lon)" that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.10 C.F.R. S 2.734(a).
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for the first time during an exercise. LILCO went into the February 13,1986 exercise in precisely the posture contemplated in the UCS case:its plan had already been scruti-nized by FEMA and the NRC Staff, and litigated at length befere Licensing and Appeal O Boards and the Commission.
Intervenors' proposed definition of "fundamental flaw," by contrast, ignored UCS and the prior litigation in this case, and asked instead that the Licensing Board review O
the February 13,1986 Shoreham exercise as if there had never been any prior review of the LILCO Plan. It is clear from UCS that the exercise litigation was to be viewed as a final step, not a first step, in reviewing the emergency plan, and that it was to be used O
to identify fundamental flaws in the plan - not isolated problems of implementation as a result of individual actions on the day of the exercise. Nevertheless, Intervenors de-fined "fundamental flaw" as follows:
'O Exercise results, events, . . . and/or omissions which singu-larly or with other results, events, or omissions, preclude a finding ci reasonable assurance that adequate protective
- measures can and will be taken on the basis of the LERO plan. Thus, they reflect problems in the plan and/or its im-iO Plementation which would preclude a reasonable assurance finding.
Tr. 8919-20 (Intervenor counsel). Intervenors' definition bears little resemblance to the l
Commission directive in CLI-86-11, where the Commission focused on the predictive O
nature of emergency planning and restricted exercise review to identification of funda-mental flaws in the plan. Intervenors focused upon single events that reflected perfor-mance on the day of the exercise, and not patterns that revealed a fundamental flaw in O
the plan itself.
In its February 1,1988 PID, the Board addressed for the first time the standard ,
for a "fundamental flaw" that it would apply in deciding the exercise proceeding which had been before it for over a year.N The Board failed to clearly articulate that l 9/ In ruling on Intervenors' proffered contentions on the Shoreham exercise, the O Board stated, without elaboration, that it was adopting the "fundamental flaw in the (Footnote Continued)
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standard.
The Licensing Board cited CLI-86-11. PID at 16. The Board agreed with the first element of LILCO's definition (health and safety), PID at 10, and with the second ele-O ment (systemic or pervasive) "to the extent that it stands for the proposition that the failure demonstrated by the exe.cise must be pervasive as opposed to a minor or !Ld hoc problem." I_d. The Board apparently rejected the third element of LILCO's proposed O
test (not readily correctable). It rejected LILCO's distinction between FEMA deficiencies on the one hand, which do not necessarily require f ar-reaching changes to a plan to remedy, and LILCO's fundamental flaw concept, which would apply only to O
potentially far-reaching revisions of the written emergency plan. The Licensing Board found, as urged by Intervenors, that there was "no basis on which to draw any mean-ingful distinction between a fundamental flaw and a deficiency," althcugh it stated O
that, if anything, in its view the FEM A definition of a deficiency is more serious than an NRC fundamental flaw. PID at 7,9.E!
O (Footnote Continued From Previous Page) plan" criterion for the admission of contentions. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Prehearing Conference Order (unpublished), pp.1-4 (October 3,1986). In adopting the "fundamental flaw" standard, the Board merely as-10 serted that it was following the Commission's directive and the UCS decision. Id. at 1
2-4.
M/ TM Board's conclusion that the definition of a "fundamental flaw" is broader than that of a FI:MA "deficiency" is contrary to the logic of NRC regulations. Section i 50.54(s)(2)(ii) provides operating plants with four months to correct "deficiencies" iden-iO tified in the state of emergency preparedness. (Since the state of emergency prepared-ness is judged in FEMA graded exercise, the "deficiency" in S 50.54(s)(2)(ii) is syn-onymous with a FEMA deficiency.) If the deficiencies are not corrected at the end of that period, the Commission will determine what enforcement action is appropriate, including, but not requiring, the shutdown of the facility. Thus, if FEMA "deficiencies" do not require the prompt shutdown of an operating facility,it cannot follow as a mat-
!O ter of logic that a "fundamental flaw," which automatically prevents the issuance of an operating license, can be defined as being broader than a deficiency. Intervenors urged (Footnote Continued) l
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)
O Other than the information that can be gleaned by the Board's application of the test in its opinion, the observations summarized above are the extent of the Board's parsing of the "fundamental flaw" test. To properly find a "fundamental flaw," the Board must have found that an essential component of the plan was flawed conceptu-ally: "minor or ad hoc problems occurring on the exercise day" are not fundamental flaws in an emergency plan. Carolina Power & Light Co. (Shearon Harris Nuclear O
Power Plant), LBP-85-49,22 NRC 899 (1985); LBP-86-11,23 NRC 294 (1986). Problems "which only reflect the actual state of emergency preparedness on a particular day in question" are not fundamental flaws. UCS, 734 F.2d at 1448.E The Board's O
(Footnote Continued From Previous Page) explicitly, Intervenors' Proposed Findings at 12 n.16, Aug. 3,1987, and the NRC Staff lO seemed to argue implicitly, see NRC Staff Proposed Findings at 142, Sept.11,1987, that a "fundamental flaw" was the same as a deficiency u defined by FEMA. If that is so, the NRC need not have gone to the trouble of arguing, and the D.C. Circuit of find-ing in Union of Concerned Scientists, that there was a concept called "fundamental flaw" that might be shown as a result of an exercise. It a fundamental flaw is the same as a deficiency, the NRC has in effect abdicated its entire responsibility on emergency lO planning to FEMA. But common practice shows that that is not the case; FEMA de-
! cides in the course of evaluating exercises that deficiencies exist, but plant licenses are not automatically revoked. Indeed,10 C.F.R. S 50.54(s)(2)(ll) normally gives licensees four months to correct deficiencies in their state of emergency preparedness; af ter that time, if the deficiency is still not corrected then the Commission can order the plant shut down or take other appropriate enforcement action. That is because FEMA
.O is looking at only one piece of the process: a postulated accident plus a one-day re-sponse. The NRC, on the other hand, must consider emergency planning exercises in context: as demonstrations of the final layer of many layers of safety systems at nucle-ar power plants, and a layer that is correctable at that.
Finally, it is clear from UCS that neither the NRC in argument nor the D.C. Cir-O cuit in its dccision viewed deficiencies as equivalent to fundamental flaws. Both the Staff and the Court of Appeals went out of their way to define a fundamental flaw; both discussed at length the FEMA process that was part of the ultimate decisioamaking process on emergency planning adequacy leit to the NRC, and nowhere does that decision suggest that a FEM A defic.ency equals a fundamental flaw.
O M/ The third part of the LILCO test, whether the problem is readily correctable, sheds light on whether the problem identified is a minor, ad hoc problem on a particular
(/ootnote Continued)
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applications establish that it failed to distinguish properly between exercise perfor-mance and the integrity of the emergency plan.
The Board in its application broadened the "fundatnental flaw" test so as to apply O
it to plan implementation as distinguished from the plan itself. This extrapolation is in-consistent with the only relevant precedent - Union of Concerned Scientists, Shearon Harris, and CLI-86-11. All three of these casns concern the revelation in exercises of O
"fundamental flaws" in a plan itself, not in performance on the exercise day. Union of Concerned Scientists, 735 F.2d at 1437; CLI-86-11, 23 NRC at 581; Shearon Harris, 22 NRC at 909-910. The Board's conception of the "fundamental flaw" test also ignores O
the predictive nature of emergency planning findings and the NRC's view that an exer-cise is not "relevant as to minor or g hoc problems occurring on the exercise day."
Union of Concerned Scientists,735 F. 2d at 1443.5
'O It w::s not the Licensing Board's mandate to make a d_e novo reasonable assurance finding as to the adequacy of the LILCO Plan. Rather, its limited task was to review the Februnry 13,1986 exercise events in the context of previous plan reviews, and de-termine whether that exercise revealed any fundamental flaws in the LILCO Plan that, (Footnote Continued From Previous Page)
!O day, or a systemic, pervasive problem in the plan. In the Shearon Harris proceeding the Licensing Board summarily disposed of the two admitted ex?rcise contentions on the ground that the exercise problems were readily correctable. See Shearon Harris, LBP-86-11,23 NRC at 397-407.
O 12/ Conceivably, systemic, pervasive problems in plan implementation on the day of the exercise, resulting in problems that could seriously affect the health and safety of the public in an emergency, could indicate a fundamental flaw" in the Plan provisions relating to training. As discussed in detail below, however, the sorts of problems of im-plementation raised on the day of the Shoreham exercise did not point to a fundamental flaw in the training program, but rather to g hoc problems resulting from individual
.O behavior that are easily correctable and would not have affected the public health and safety.
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at least until corrected, would preclude a finding of reasonable assurance. CLI-86-11, 23 NRC at 581. The Board failed to so limit itself.
- 2. Contentions Improperly Admitted
.O As a result of its failure to focus on the distinction between flaws in the concep-tual plan and exercise performance, the Board admitted enntentions that should have been excluded from the proceeding, including Contentions EX 39 and 50.
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- a. Rumor Control EX 39 LILCO opposed the admission of Contention EX 39, which alleged a variety of failures in responding to rumors and questions from individual callers, because the con-O cerns raised in it, even if true, do not constitute a fundamental flaw in the LILCO Plan.
"LILCO's Objections to Intervenors' Emergency Planning Contentions Relating to the February 13,1986 Exericse," at 27 (Aug.15,1986).
O NUREG-0654, S II.G.4.b provides that an emergency plan should contain arrange-ments for dealing with rumors. However, the rumor control function, which is part of the onsite orgnization, is not the primary component cf the public information system.
O The EBS network and siren system are the primacj means to warn the general public of an emergenc/ and provide pertinent protective action recommendations. Press briefings at tne ENC provide the print, radio, and television media with deta!!ed onsite O and offsite information, which in turn is relayed to the public to provide a second par-allel source of information and to correct misinformation that may be generated. The rumor control function serves only as a third layer of information dissemination, O
providing a means for individual members of Qe public to have their specific questions answered during an emergency. Accordingly, the rumor control function is not a pri-mary means of communication with the general public and therefore shortcomings in O its execution are not likely to affect the health and safety of the general public to the degree necessary to constitute a "fundamental flaw."
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Certainly, those observed on the day of the exercise did not. The allegations in the contention refer to (1) LILCO call boards' and district offices' inability to respond with timely information because they had not received timely copies of the EBS mes-sages as they were issued, and (2) Intervenors' quibbling with certain responses to ques-tions such as the press wanting to go to the plant, and persons wanting to eat lobsters caught the morning of the accident. No impact on the general public as a result of these answers was alleged. Thus, the threshold question of the fundamental flaw test -
does it affect the public health and safety? - was not met,
- b. Training EX 50 0
A more significant error was the admission of Contention EX 50 on training, which resulted in 293 paces of preflied written testimony,10 days of hearing and 78 pages of decision by th i Licensing Board. Both the NRC Staff and LILCO objected to O
the admission of Contention EX 50 as a duplicative list of allegations contained in other contentions submitted by Intervenors, strung together with a conclusion that the LERO training program was flawed. The NRC Staff in its objections noted that Intervencrs O
did not allege in Contention EX 50 "detects that would demonstrate ti.at the training program is flawed conceptually," and that the FEMA Report provided no basis for Inter-venors' assertions that LERO personnel lacked basic knowledge and information to im-O plement the Plan and procedures, or that LERO persor.nel overall failed to follow them during the exercise. NRC Staff Response to Proposed Emergency Planning Contentions Relating to the February 13, 1986 Exercise at 45 (August 15,1986) (emphasis added).
O LILCO pointed out in its objections to Contention EX 50 that by grouping together indi-vidual exercise actions under some rubric such as "surpriso events" or "dosimetry," In-terianors attempted to transmute triviality into substance.$ ee S "LILCO's Objections 0
1_3/ The Licensing Board's decision suffers from the same defect.
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O to Intervenors' Emergency Planning Contentions Relating to the February 13,1986 Ex-2 ercise" at 53-56 (Aug.15,1986).EI The Licensing Board admitted this extensive con-tention af ter only two paragraphs of unenlightening discussion of (P the redundant na-O ture of the contention to others submitted by Intervenors and (2) FEMA's assertion during the planning phase that the adequacy of training was reviewed as a result of the exercise. Prehearing Conference Order (unpublished), slip, op at 29-30 (Oct. 3,1986).
O In Contention EX 50 no pattern was alleged to establish, if true, a potential effect on the public health and safety and therefore a fundamental flaw in the LERO training i
program.
O 3. Inconsistent Application of the Board's Fundamental Flaw Standard One element of the test for a "fundamental flaw" is clear: the "flaw" alleged O must, as a threshold matter, affect the public health and safety. PID at 10. The Li-censing Board ignored that threshold element of the fundamental flaw test in admitting Contentions EX 40, 38 and 39, and 50. For that reason alone, the Board's decision on O those contentions must be reversed.
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l M/ Intervenors' training contentions are reminiscent of the Shoreham QA/QC issues,
'O in which Intervenors attempted to establish a "pattern of breakdowns in the QA pro-gram." There, Intervenors argued that "every deficiency, however minor, reflects an
- attitude or lack of discipline that undermines confidence that the QA program has been successful." Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),
ALAB-788, 20 NRC 1102,1141 (1984). The Licensing Board and Appeal Board then re-t jected Intervenors' argument, noting that quality assurance review involves two sepa-O rate inquiries: (1) whether deficiencies have been uncovered and corrected, and (2) whether a generic problem exists that could affect the health and safety of the pub-lic. Ld.
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- a. Mobilization EX 40
- In analyzing Contention EX 40, the Licensing Board ignored the need to search for public health and safety effects that might have resulted from delays in mobiliza-n tion of LERO Traffic Guides, and focused instead on an incorrect reading of the Licens-ing Board's decision in the prior planning litigation.
In most exercises, the offsite organization mobilizes only those field workers O
that FEMA wishes to observe. Tr. 8515-16 (Kowleski). During the Shoreham exercise, however, LERO called out its ent're complement of field workers, which comprised ap-proximately 150% of the number of workers actually needed to carry out the LILCO Plan. LILCO EX 40 Testimony at 3. The full staff of 165 traffic guides needed to man
, all traffic control points was fully processed at the staging areas and dispatched in the field. M. Thus, the exercise provided a literal and accurate picture of LERO's ability to mobill:e its traffic guides.El '
The accident simulated at the Shoreham exercise was a fast-breaking one, prog-ressing rapidly from the declaration of a site area emergency to an evacuation recom-
- 0 mendation. The initial evacuation recommendation was made at 10:24, approximately two hours af ter the Traffic Guides had first been contacted at the declaration of site i
j area emergency and told to mobilize at the three staging areas.
O Mo':J1::ation from the the Patchogue staging area was prompt. There,18 of the 28 traffic control posts, including all of the "critical"EI ones, were fully manned by O
15/ The Shoreham plan calls for Traffic Guides, upon initial notification, to mobilize at cre of three preassigned staging areas (Patchogue, Port Jefferson, Riverhead).
There they are briefed, issued equipment, and dispatched to designated intersections in the EPZ upon issuance of a public evacuation recommendation, with the goal of arriv-ing on station by about the onset of substantial evacuation traffic (about one hour af ter o a public evacuation recommendation is issued).
l IQ/ LILCO witness Lieberman, a traffic engineer who had designed the traffic-t related aspects of the LILCO Plan, defined "critical" traffic control posts as those l
(Footnote Continued)
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11:25, about three hours af ter the site area emergency was declared and approximately the time that congestion would have been anticipated to begin along the roads in the Shoreham EPZ. LILCO EX 40 Testimony at 13. By 11:40, just an hour and sixteen O
minutes af ter the evacuation recommendation was made, all traffic control posts staffed from the Patchogue staging area were fully manned. Ld. at 14.
The mobilization of traf!!c control posts staffed from the Port Jefferson staging O
area took longer than the mobilization of posts staffed from Patchogue. Port Jefferson Traffic Guides assigned to critical traffic control posts began arriving at their posts at 11:25, or approximately one hour af ter the evacuation recommendation was given.
'O LILCO EX 40 Testimony at 14-15, Att. C.; see Intervenors EX 40 Testimony at Att.11.
By 11:58, approximately one half-hour af ter the anticipated onset of congestion, all but two critical traffic control points had been manned. The last critical traffic control O
point was manned at 12:13, 49 minutes af ter the anticipated onset of congestion. Ld.
The manning of non-critical control points took considerably longer, with the last Port Jefferson traffic control point manned at 13:26. Ld. at 14.EI O (Footnote Continued From Previous Page) l having the greatest effect on public health and safety. "Critical" traffic control posts (1) increase the capacity of highway sections, (2) serve a heavy volume of traffic and l serve traffic evacuating from within the two-mile zone, and (3) in a few instances, l
i serve more than one evacuation path, with the Traffic Guide helping to ensure that the lO capacity of each evacuation path is fully used. LILCO EX 40 Testimony at 10.
l E/ During the exercise, Traffic Guides reporting to the Port Jefferson staging area were instructed not to park in areas adjacent to the power station, so as not to disturb l normal plant operation, although they would park in those areas in an actual ra-l diological emergency. LILCO EX 40 Testimony at 16. Instead, they parked in a more O remote lot about 10 to 15 minutes by foot from the Port Jefferson power station. Id.
l As a result, in an actual emergency the time needed to man the traffic control posts would have been reduced by 20-30 minutes.
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The logs recording the times at which Riverhead Traffic Guides reported to their traffic control posts were lost. LILCO EX 40 Testimony at 16. The Riverhead Traffic Guides who were dispatched at the first recommendation to evacuateN were given their control point assignments between 10:52 and 11:08. LILCO EX 40 Testimony at 17, At'. E.3; see Tr.1658 (Weismantle). In the planning litigation, the Licensing Board found that af ter receiving their assignments, Traffic Guides would have taken about 10 O
minutes to obtain equipment and between five to 40 minutes (with an average of 20 minutes) to travel from the staging areas to traffic centrol posts. LBP-85-12,21 NRC at 719, 723, 725. Using these times, then, the Riverhead Traffic Guides would have manned their posts during the period from 11:07, less than one hour af ter the evacua-tion recommendation was made, until 11:58, one hour and thirty-four minutes af ter that recommendation was made. LILCO EX 40 Testimony at 17.
The Board began its analysis of these facts by correctly recognizing that the "controlled" evacuation time estimates in the LILCO Plan assumed that Traffic Guides would be substantially in place about one hour af ter an evacuation recommendation is
,O made.N However, the Board then transformed this assumption without basis into a i
l 18/ The evacuation simulated during the February 13,1986 exercise occurred in two lO waves. The first began at 10:24 and affected 15 of the 19 zones in the Shoreham EPZ.
The second wave began at 11:46 and involved the remaining four zones. All of the traf-fic control posts manned out of Patchogue and Port Jefferson were staffed as a result of the initial evacuation recommendation. Most of the Riverhead traffic control points were manned in the first wave as well. though some were mannad as a result of the second evacuation recommendation. LILCO EX 40 Testimony at 11.
1_9/ The LILCO Plan contains two sets of evacuation time estimates used in making protective action recommendations. The "controlled" evacuation time estimates as-s"me that Traffic Guides are in piace at the time they are able to influence evacuation l times - approximately one hour af ter an evacuation recommendation is made to the l
general public. The "uncontrolled" estimates assume that all traffic control points re-O main unmanned throughout the evacuation. To the extent Traffic Guides man their posts only later than one hour af ter an evacuation recommendation, then the evacua-tion time for the general public would begin to shif t from the "controlled" toward the l "uncontrolled" timo estimates. LILCO EX 40 Testimony at 6-10; see_ also LBP-85-12,_
21 NRC at 720,724.
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- O rigid but-for test for a "fundamental flaw."N In so doing, the Board expressly aban-doned its own "fundamental flaw" test, stating:
Nor can we accept LILCO's invitation to consider whether
- 0 the delay would have had a significant effeet on public health and safety.
PID at 85 (emphasis added). The Board then declined to consider evidence, submitted by LILCO at the Board's specific request, showing that the delay in mobilizing Traffic Guides experienced during the exercise would have had no effect on the total popala-tion dose received by the EPZ residents. PID at 86 n.23. It also ignored LILCO's uncontested testimony that, had an evacuation actually taken place, the delay in O
20/ The Board makes this transformation as a result of its incorrect reading of the prior planning Board's decision on LlLCO's "immate:.iality" argument. See PID at 85-86.
Essentially, LILCO's "immateriality" argument contended that NRC regulations do not O require traffic control nor do they specify acceptable evacuation times. Instead, they require only accurate evacuation time es'.imates for use by decisionmakers in an emer- :
gency. Because the difference in total evacuation times between the presenco of the detailed traffic plan in the LILCO Plan and ng traffic plan at all was 90 minutes (subse-quent refinements in the LILCO Plan have reduced this difference to 35 minutes), the presence of traffic guides did not materially increase public health and safety and g hence, were not a necessary element of the LILCO Plan. The OL-3 Doard disagreed, finding that the difference of 90 minutes in evacuation times could reduce the options available to the decisionmaker and could have an effect on total population dose in some accident sequences. LBP-85-12,21 NRC at 917.
In so finding, the OL-3 Board did not hold that LILCO was reautred to achieve a o controlled evacuation. Indeed, it recognized that under some accident sequences, a controlled evacuation was impossible. Ld. at 723-25. Likewise, the OL-3 Board,in con-sidering LILCO's "immateriality" argument on remand, rejected Intervenors' argument that LILCO is required to have a traffic control plan and permitted further proceedings on the later evacuation time estimates. Memoranclum and Order (Denying in Part and Granting in Part LILCO's Motion for Summary Disposition of Contention 1,2, and 9 -
0 Immateriality) at 6-8 (March 11,1988). Thus, the exercise Licensing Board misinter-preted the prior planning decision.
In any case, LILCO did not argue on Contention EX 40 that it was not required to have any Traffic Guides mobilized in any given time frame. Instead,it argued that mo-bilization on the day of the exercise would have delayed total evacuation times by 19 minutes, nd that that small extension of total evacuation time would not have had a 0 significant effeet on public health and safety. ,
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.O manning traffic control posts would have added a total of 19 minutes to the 10-mile EPZ controlled evacuation time estimates and would not have changed protective ac-tion recommendations for the EPZ. LILCO EX 40 Testimony at 8-9. The Board's f ailure to consider the health and safety consequences of the delay in mobilization of Traffic Guides is reversible error.
In addition the Board found that one of the three staging areas met the one-hour iO time limit assumed in the Plan, and acknowledged that the other two came close. PID at 84. Given this exercise performance, the Board committed reversible error in f alling to explain how the Plan could be fundamentally flawed, or why these Traffic Guide mo-O bilization delays are not merely a readily correctable problem, requiring simply more practice at the two staging areas that were slow in mobilizing their Traffic Guides.
- b. Public Information EX 38 and 39 0 On Contentions EX 38 and 39, the Board concluded that four shortcomings in the public information area allegedly either constituted "fundamental flaws" in themselves or contributed to one "fundamental flaw" (it is not clear which from the opinion):
O (1) failure to furnish timely copies of EBS messages to media at the ENC;(2) failure to furnish timely copies of EBS messages to rumor control personnel in the district offices and call boards; (3) f ailure of the LERO spokesperson to answer one question on the de-O tails of the impediments, to mention sheltering of cows as part of a report on protec-tive actions, and to correct certain misstatements by a Dr. Brill, and (4) certain inconsistencies in the wording of EBS messages. PID at 139, 157-158, 169-171.
O in considering these four problems, the Board did not even discuss, much less de-termine, that each would have substantially affected the public health and safety. To the contrary in each case the Board failed to state any reasoned basis for labeling the O problem a fundamental flaw or part of one. These incidents, taken together or singly, did not rise to a fundamental flaw.
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ENC Activities 1.
During the exercise the emergency classification levels were declared onsite at
, the following times: unusual event at 5:40, alert at 6:17, site area emergency at 8:19.
and general emergency at 9:39. LILCO's Proposed Findings at 132. The first EBS mes-sage was broadcast (simulated; at 6:52, the ENC was declared operational at 8:25, and l the first press conference began at 8:40. Id. The ENC is an onsite (LILCO) facility, but
) offsite (LERO) public information personnel also report and function there. Ld. at 132, n.56. Thus, press conferences included both LERO and LILCO spokespersons, and each had his own staff. Ld. During the course of the day the ENC issued 11 EBS messages,19
) LILCO press releases, nine LERO press releases, and held seven live press briefings, 1
each lasting an average of 20 minutes, including question and answer sessions between the LERO and LILCO spokespersons and press representatives.UI LILCO EX 38 and 39
) Testimony at Atts. B, D, E, and P. In aodition, LILCO witnesses testified that LILCO and LERO personnel interacted with the press before and af ter press briefings. Tr.
3534, 3751-52 (Robinson). LERO news releases generally paralleled the information
> given out in EBS messages.
The facts relied on by the Board are as follows: ,
(1) Coping Delays: Early on during the exercise, two of the copiers at the ENC
) malfunctioned. The result was a lag in providing hard copies of EBS messages to the l
I press throughout the day. Thus, each EBS message contained dated information at the time it was released to the media at the ENC.
r (2) Rumor Control: In addition, LILCO's rumor control personnel received late copies of EBS messages because of the copier breakdown. LILCO EX 38 and EX 39
) 21/ A transcript of the taped press briefings was attached to LILCO's testimony on Contentions EX 38 and 39.
)
Q Testimony at 24.E (3) News Conferences: One of the key functions of the ENC is to gather togeth-er in one place the sources of information during an emergency so that there can be
- O coordination of those sources. See NUREG-0654, S II.G.4. As part of the LILCO Plan to i
provide consistent and credible information to the public from a variety of sources, the onsite organization asked representitives from several organizations to come to the
'O ENC. During the course of one of the press briefings, a Dr. Brill, a scientist from Brookhaven National Laboratory, was present. He commented on the health effects of the simulated release. In doing so, he made an error in assuming that the "weathering O
factor" was threefold when the factor stated in the Plan is 0.7. This led him to esti- l mate a dose of 60 millirems per hour instead of the correct dose,126. Also, he contradicted LERO's evacuation recommendation in effect at that time by stating that lO although he lived in the affected zone, in all likelihood he would not evacuate given the current situation. LILCO EX 38 and 39 Testimony at Att. P, p. 58-59. Dr. Brill's state-l ment concerning evacuation was immediately corrected by the LILCO news manager O
af ter the close of the official press conference. Tr. 3572 (McCaffrey).
As to impediments, at the 12:47 news conference one of them - the gravel truck impediment - was erroneously reported to have been cleared by the LERO O
22/ Rumor controlis an onsite function run exclusively by LILCO personnel. LILCO EX 38 and 39 Testimony at 52. LILCO's rumor control network is headquartered in the ENC, with response personnel manning each of LILCO's eleven district offices and four O customer service call boards. Ld. Under the LILCO Plan, members of the public are in-structed to call any of the district offices or call boards with their questions during an emergency; if the rumor control personnel at those offices cannot answer the questions themselves, they forward the questions in an established chain of command to the ENC, and, if necessary, others until the questions are answered. Ld. at 52-56. Although rumor control personnel are instructed to attempt to answer every inquiry received, O the main function of rumor control is to spot potential rumors (usually indicated by two or more questions on the same topic) and to dispel them with corrective announce-ments at the ENC. Id. at 51-56.
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.O spokesperson. Tr. 3538-40, 3543-45 (Robinson). At the 1:48 press conference, the LERO spokesperson noted that the other impediment - involving a fuel truck - was blocking the affected roadway and that traffic was being rerouted, but the O
spokesperson was unable to answer questions about whether fuel was leaking or the condition of the truck. LILCO EX 38 and 39 Testimony at 44-45.
(4) EBS Messages: The 11 EBS messages that were simulated during the exercise O
were marked-up versions of the sample EBS messages in the Plan. S_e_e LILCO Plan at OPIP 3.8.3, Att. 4. These sample messages had already been litigated during the emer-gency planning litigation and approved as part of that litigation. 21 NRC at 698. Inter-
.O venors highlighted and the Licensing Boatd mentioned the following inconsistencies in the EBS messages: EBS message number two stated that "a very minor release has oc-curred," and, later in the same message, stated that a release was "not imminent".
O LILCO EX 38 and 39 Testimony at 14-15. In EBS message number seven, the message stated that the expected thyroid dose was 40% of the EPA evacuation guidelines "at 10 miles downwind of Shoreham;"it went on to advise, however, that "if you were outside iO the 10 mile emergency planning zone, there is no reason to take action." LILCO EX 38 and EX 39 Testimony at Att. B. EBS message number two also told the public they need take no action beyond determining which zone they were in, but at the same time rec-O ommended sheltering milk producing animals, thus potentially raising the question for listeners of whether humans were in some danger if animals needed sheltering.E O In addition, the Licensing Board discussed three items in the EBS messages:
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(1) some of the messages gave "dose projections" while the local news releases and the LILCO spokesperson in the news conferences spoke in terms of "dose rate projections,"
see LILCO EX 38 and EX 39 Testimony, App. E and P; Tr. 3695, 3699 (McCaffrey);
(2) the messages described the releases in terms such as "small," "minor," "major," "sig-O nificant" without quantification of those terms, M. at App. B; and (3) the messages stat-ed the emergency classification that had been declared and that it was one of four clas-sifications, without giving the hierarchy of the current classification, M. at App. B.
PID at 167. It is unclear from the opinion whether the Board included these items in its "fundamental flaw."
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