CLI-86-13, Decision CLI-86-13 Re Measuring of Util Emergency Plan Against Std That Would Require Protective Measures as Listed.Asselstine Dissenting Views Encl.Util Argument Remanded to Aslb.Served on 860725

Decision CLI-86-13 Re Measuring of Util Emergency Plan Against Std That Would Require Protective Measures as Listed.Asselstine Dissenting Views Encl.Util Argument Remanded to Aslb.Served on 860725

ML20207J983
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/24/1986
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	LONG ISLAND LIGHTING CO.
References
CON-#386-121 CLI-86-13, OL-3, NUDOCS 8607290310
Download: ML20207J983 (21)

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0 SNRc UNITED STATES OF AMERICA

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C0t941SSIONERS:

Lando W. Zach, Jr., Chainnan Thomas M. Roberts James K. Asselstine Frederick M. Bernthal SERVF.D JULQSg

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In the Matter of

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LONG ISLAND LIGHTING COMPANY

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Docket No. 50-322 OL-3 (Shoreham Nuclear Power Station, (Emergency Planning)

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DECISION CLI 13 Before us is Long Island Lighting Company's (LILCO) petition for review of the October 18, 1985 Appeal Board decision holding inadequate as a matter of law LILC0's emergency plan for the Shoreham Nuclear Power Plant. ALAB-818, 22 NRC 651. The Appeal Board based its decision largely on the refusal of New York State and Suffolk County to participate in the planning, and on LILCO's lack of legal authority to implement certain features of its plan. For the reasons explained below, we reverse and remand for further evidentiary hearings on issues raised by LILC0's so-called " realism" and " materiality" arguments. We do not address LILC0's preemption arguments at this time.

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• BACKGROUND x 1.

After having initially supported the licensing of Shoreham, Suffolk s

County later withd'ew its support and moved the Shoreham Licensing Board to r

1 terminate the proceeding on the ground that the NRC could not grant a license for Shoreham in the absence of a government-sponsored emergency plan. The Board denied the motion, reasoning that the agency was required to afford LILC0 an opportunity to show that its utility-only plan was an adequate one. The Ccmmission affirmed, stating that the agency was obligated to consider a utility-only plan. CLI-83-13, 17 NRC 741, 743.

In a later order we also observed that "the [ emergency planning] issues do not appear to us to be categorically unresolvable." CLI 83-17, 17 NRC 1032,

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Subsequently, LILC0 submitted its plan for NRC consideration, and Suffolk fopnty responded with its 97 contentions encompassing 174 pages.

Contentions 1-10 asserted that LILC0 lacked the legal authority to implement certain features of its radiological emergency plan, including the authority to control traffic and to inform the public.I From December 1983 until August 1984, the parties and the Licensing Board operated under an agreement that no evidentiary hearings were required on these " legal contentions." Then, in August 1984, LILC0 submitted a Motion for Summary Disposition on the legal authority contentions, arguing that it should prevail on these contentions for three reasons: first, that State and IContentions 1-10 are set forth in full at 17 NRC 958-963.

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local law were preempted by federal law to the extent that the State and local laws deprived LILC0 of authority to plan for and implement its radiological emergency plan (" Preemption"); second, that even if LILCO lacked legal authority, the State and the County would respond in a real emergency either by implementing the plan themselves or by deputizing LILCO personnel to implement the plan (" Realism");2 and third, that some of the functions which LILCO purportedly lacked authority to implement were not NRC requirements in any event ("Imateriality").

The NRC staff and Intervenors opposed the motion, and the Licensing Board denied it, concluding. that LILCO did not gain via preemption the i

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legal authority it otherwise lacked; that even assuming an emergency response by the State and the County, there was no assurance that the response would be other than ad hoc and uncoordinated with LILCO's actions, f

contrary to the very reason for the emergency planning regulations which I

require advance planning; that while few of the actions listed in Contentions 1-10 were explicitly required by the regulations, these actions were nonetheless necessary to comply with the explicit requirement in section 50.47(b)(10) for plan features which will permit "a range of 2LILC0's basis for its realism argument before the Licensing Board was a December 1983 press release by Covernor Cuomo stating that "if the plant were to operate and a misadventure were to occur, the State and County would help to the extent possible;" before the Appeal Board, the basis was the asserted " undeniable truth" that in an emergency the State and County would respond and would perm 1t LILC0 to implement its plan. Appeal Brief at 45 (June 3, 1985).

protective actions" in the event of an emergency;3 and that LILCO's plan couldn't' be considered an " adequate interim compensating measure" under section50.47(c)(1)becausetherewasnothingintherecordtoindicate that the State or local governments would ever participate in Shoreham emergency planning, and the Board couldn't speculate on what the govern-ments might do if and when Shoreham began full power operation. LBP-85-12, 21 NRC 644 (1985)(hereinafter cited as PID).

In every important respect, the Appeal Board in ALAB-818 agreed with the Licensing Board. 22 NRC 651 (1985).4

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3The Licensing Board found that an uncontrolled evacuation would take longer than a controlled evacuation (about 11 hours1.273148e-4 days <br />0.00306 hours <br />1.818783e-5 weeks <br />4.1855e-6 months <br /> more in good weather, about three hours in inclement weather). From this it concluded that the range of protective actions was impennissibly restricted because sheltering would have to be used in some fast-breaking events, when otherwise evacuation might have been possible.

4The Appeal Board added that

[T]he Board properly rejected LILCO's " immateriality argument.

We recognize that the Coninission's regulations do not spell out the precise manner in which an evacuation is to be ronducted, if necessary. Nonetheless, the Commission has construed its emergency planning regulations to require " provisions for evacuating the public in times of radiological emergencies." We have likewise observed that the Commission's emergency planning [ scheme contemplates that emergency evacuation procedures be developed for the 10-mile EPZ). LILC0 included traffic control as part of its proposed evacuation procedures in light of such requirements. We believe that such inclusion was proper.

In the context of this case, at least, something more is needed than an aspiration that the public will be able to fend for itself in the event an evacuation is required.

ALAB-818, 22 NRC at 677 (footnotes omitted, emphasis added by the Appeal Board).

LILCO petitioned for Coninission review of ALAB-818, and we granted the petition but deferred any further action until the Appeal Board rendered its decision on then-pending Intervenor appeals. Order dated Dec. 19, 1985. Recently, in ALAB-832 (March 26,1986), the Appeal Board resolved all remaining Intervenor appeals, reversing and remanding a few issues to the Licensing Board but staying the remand until the Commission completed its review of ALAB-818 or directed otherwise. The Appeal Board also left undecided LILCO's appeals on three other emergency planning issues.

Below we analyze LILC0's petition for Commission review on the realism and immateriality decisions, leaving for a later time review of the legal authority preemption issues.

In doing our review we have carefully reviewed both Boards' decisions, and all of the extensive briefs that have been filed with both Boards on the realism and materiality issues. While we did not request additional briefing, the parties nevertheless filed several additional papers with us, and we have considered all of them.5 SThese pleadings are: Statement of Suffolk County Executive Peter F. Cohalan (June 23,1986); LILC0's Reply to Unauthorized Pleading filed on June 23 by Suffolk County; LILC0's Motion to Strike Unauthorized Pleading filed on June 23 by Suffolk County (June 30,1986); Statement by Governor Mario M. Cuomo (June 30,1986); Response of Long Island Lighting Company,to Governor Cuomo's June 30, 1986 " Statement"; Letter dated July 7, 1986 from Lawrence Coe Lanpher; Suffolk County's Answer to LILCO's " Motion to Strike Unauthorized Pleading filed on June 23 by Suffolk County" (July 15, 1986); State of New York Response to " Response of Long Island Lighting Company to Governor Cuomo's June 30, 1986 " Statement'."

Intervenors also submitted two pleadings not directly related to the legal authority issues, and we do not consider them at this juncture. See Suffolk County, State of New York, and Town of Southampton Motion for Reconsideration of CLI-86-11 (July 21, 1986); Suffolk County, State of New York, and Town of Southampton Supplemental Answer to LILC0's Petition for Review of ALAB-832 (July 22, 1986).

REALISM LILC0's Arguments LILCO argues essentially that the Boards' holdings would approve only those utility plans which fill minor gaps in State and local government participation, and that this cannot be correct in light of the Comission's denial of the County's 1983 motion to terminate the proceeding, a motion based on the absence of any local government participation in Shoreham planning. The Commission stated in its denial that it was " obligated to consider a utility plan submitted in the absence of state and local government-approved plans...." CLI-83-13,17NRCat743(emphasisadded).

If only minor gap fillers are pemitted, asks licensee, then what was the purpose of the provisions in the NRC Authorization Acts beginning in 1980 permitting NRC consideration of utility plans? The answer, says LILCO, is that these statutes evidence Congress' intent to permit utility-only plans, and that no legislation would have been necessary to pemit minor gap fillers.

LILC0 also argues that the Board erred by failing to presume that State and local officials would fulfill their duties by responding in an emergency, citing New York Executive Law Article 2.b. which requires such l

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6 response, and language in the Conference Report accompanying the FY 1985 HUD-Independent Agencies Appropriations Act favoring such a presumption 7 Moreover, says LILCO, the Board erred in deciding the summary disposition motion by raising sua sconte the question whether a State and local response, if there were one, would be coordinated with LILC0's. The only issue raised by Contentions 110 and by the motion was legal authority. The factual issue of coordination was not raised by the motion or by Contentions 1-10, but by Contention 92, which was not then before the Board. However, even if coordination were a proper question, the record

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shcws that the plan is designed to accomodate previously uncooperative government personnel, according to LILCO.

Staff's and Intervenors' Arguments Staff and Intervenors argue that even assuming that the State and local authorities might themselves respond in an emergency or delegate some l

6See, e.g., Section 25 of the Executive Law, which provides that

"[u]pon the threat or occurrence of a disaster, the chief executive of any political subdivision is hereby authorized and empowered to and shall use any and all facilities, equipment, supplies, personnel and other resources of his political subdivision in such manner as may be necessary or l

appropriate to cope with the disaster or any emergency resulting therefrom."

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"[I]n its review [of emergency plans], FEMA should presume that Federal, State and local governments will abide by their legal duties to l

protect public health and safety in an actual emergency...."

H.R. Rep. No.99-212, 99th Cong.,1st Sess., Reprinted in Cong. Rec. at 15358 (11/13/85).

functions to LILCO, the regulations require comprehensive, cooperative, and detailed preplanning which includes various governmental groups. The current evidentiary record does not reveal what the nature of a local governmental response might be, and thus the Board correctly denied the motion.

As to LILCO's argument that the Board shouldn't have considered the coordination issue in ruling on the summary disposition motion, staff argues that LILC0's motion itself raised factual issues necessary for the Board to resolve, one of them being the coordination question.

Staff and Intervenors also argue that realism and immateriality could have been rejected on procedural grounds since LILC0 and the other parties had litigated from December 1983 to August 1984 on the assumption that LILC0 alone would implement its plan.

Thus LILC0's assertion of the realism theory late in the game was an attempt to prosecute its case on a theory different from that which the parties had litigated, and it was necessary to offer those parties an opportunity to submit evidence on the new theory.

LILCO's Reply to Staff and Intervenors First, the utility argues, the Governor's press release statement that the State and. County would respond in an emergency supports a finding in LILC0's favor on the " realism" issue because the press release is in the evidentiary record, no one has attempted to refute it, there's a pre-sumption that governmental officials will perform their legal duties, and i

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an inference should be drawn against a party who fails to produce evidence in his control which could refute evidence in the record.

Second, LILC0 asserts that the County's response in an emergency would not be ad hoc and uncoordinated because the County Executive has directed county employees to study the plan with an eye to giving advice and assis-tance to the County Legislature. Thus relevant county employees will be familiar wit.h the plan.8 Third, LILC0 asserts that it is not prosecuting its case on a theory different from that litigated initially. At the outset of the evidentiary hearing, applicant sought to litigate several variations of its plan, including a " principle offsite plan" involving County implementation; at the same time, applicant noted that the plan was flexible enough to incorporate county personnel after the onset of an emergency. Despite LILCO's request, the Board pennitted LILC0 to litigate only the LILCO-implemented variation.

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At oral argument before the Appeal Board on August 12, 1985, when the l

County Executive was at odds with the Legislature over Shoreham, counsel representing the Executive supported this LILC0 argument, adding that County personnel were already familiar with plans to deal with natural disasters. Furthermore, despite Justice Geiler's opinion that police powers could not be delegated to private companies, Counsel noted as well that the County charter provides for the appointment of special patrolmen I

in emergencies, and that state law provides for the appointment in emergencies of special deputy sheriffs. Transcript at 83-88.

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Comission Decision There is no doubt that the Comission's emergency planning regulations were generally intended to prevent a recurrence of the situation that arose shortly after the THI-2 accident when, based on the facts as they then appeared, some emergency response was called for but the prior planning and coordination between the utility and local governments proved inadequate.

The emergency planning standards in 10 CFR 50.47(b) and Part 50, Appendix E are premised upon a high level of coordination between the utility and State and local governments.

It should come as no surprise that without governmental cooperation LILC0 has encountered great difficulty complying with all of these detailed planning standards.

However, we intended our rules to be flexible. As we have stated before, we are legally obligated to consider whether a utility plan, prepared without government cooperation, can pass muster. A utility plan might pass muster under 10 CFR 50.47(c). Section 50.47(c) provides for licensing notwithstanding noncompliance with the NRC's detailed planning standards: (1) if the defects are "not significant"; (2) if there are

" adequate interim compensating actions"; or (3) if there are "other compell.ing reasons". The decisions below focus on (1) and (2) and we do likewise.

The measure of significance under (1) and adequacy under (2) is the fundamental emergency planning licensing standard of section 50.47(a) that "no operating license... will be issued unless a finding is made that there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency." The root question

becomes whether the LILCO plan can provide for " adequate protective measures... in the event of a radiological emergency."9 This root question cannot be answered without some discussion of what is meant by " adequate protective measures". Our emergency planning regulations are an important part of the regulatory framework for protect.

ing the public health and safety. But they differ in character from most of our siting and Engineering design requirements which are directed at achieving or maintaining a minimum level of public safety protection. See e.g.,10 CFR 100.11. Our emergency planning requirements do not require that an adequate plar, achieve a preset minimum radiation dose saving or a minimum evacuation time for the plume exposure pathway emergency planning zone in the event of a serious accident. Rather, they attempt to achieve reasonable and feasible dose reduction under the circumstances; what may be 9Under section 50.47(c) a compensating action should be " interim." We have no difficulty calling the LILCO plan " interim." Certainly LILCO intends it as such because it stands ready to cooperate with the governments in preparinl a fully coordinated plan. But County Executive Cohalan and Governor Cuomo deny that they ever would or could cooperate with LILC0 either before or even during an accident, citing both distrust of the utility company and Suffolk County's ordinance prohibiting implementation of LILC0's emergency plan. Statement of Peter F. Cohalan (June 23, 1986); Statement by Governor Mario M. Cuomo (June 30,1986). We simply cannot accept these statements at face value, as we could not automatically accept earlier, similar statements by the County. See January 30, 1986 Comission Memorandum and Order at 6, n.1.

See also, LILC0's Reply to Unauthorized Pleading Filed on June 23 by SuTfolli Ciunty, at 10.

These statements by the Governor and the County executive do not convince us that the LILC0 plan is anything more than an interim plan which likely will be superseded or supplemented by the State and County if Shoreham is permitted to operate at full power. To conclude otherwise would require us to assume that the governments will not seek to improve the protection available for their citizens.

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• reasonable or feasible for one plant site may not be for another. And, in the past, what was reasonable and feasible in a given case depended on the cooperative planning efforts of the utility and State and local govern-ments. But what should we regard as reasonable and feasible for Shoreham, where the governments refuse to cooperate?

In addressing this question the Boards below presumed that the LILCO plan must essentially achieve all that a fully coordinated plan can achieve.

In essence, the Boards defined what is reasonable and feasible for Shoreham solely in tems of the nature of the site and environs without

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regard for the degree of possible government cooperation. This inexorably i

led the Boards to rejection of the LILCO plan on the ground that LILCO l

could not lawfully accomplish all that cooperating governments might in the event of an accident.

We believe that flexibility is called for by the legal requirement that we consider a utility emergency plan.

It is very unlikely that an utility plan could ever pass such a strict test. We could conceivably define what is reasonable and feasible dose reduction for Shoreham solely l

l in tems of what LILC0 itself can reasonably and feasibly achieve, but we are not prepared to do so. Rather, we might look favorably on the LILC0 l

plan if there was reasonable assurance that it was capable of achieving dose reductions in the event of an accident that are generally comparable to what might be accomplished with government cooperation. With this in mind, we turn to LILC0's realism argument.

We assume that LILC0 is prohibited from performing the State or County roles in the following areas:

(1) guiding traffic;

(2) blocking roadways, erecting barriers in roadways, and channeling traffic; (3) posting traffic signs on roadways; (4) removing obstructions from public roadways, including towing private vehicles; (5) activating sirens and directing the broadcasting of emergency broadcast systen messages; (6) making decisions and recommendations to the public concerning protective actions; (7) making decisions and recommendations to the public concerning protective actions for the ingestion exposure pathways; (8) making decisions and recommendations to the public concerning recovery and reentry; (9) dispensing fuel from tank trucks to automobiles along roadsides; and (10) perfonning access control at the Emergency Operations Center, the relocation centers, and the EPZ perimeters.

Some of these areas, such as making decisions and recomrrendations to the public on protective actions, are fundamental to emergency planning.

However, if Shoreham were to go into operation ard there were to be a serious accident requiring consideration of protective actions for the public, the State and County officials would be obligated to assist, both as a matter of law and as a matter of discharging their public trust. See N.Y. Exec. Law, Article 2-B., 9 25.1.

See also H.R. Rep. No.99-212, 99th Cong.,1st Sess. (1985), ouoted in part in note 7, supra. Thus, in evalu-ating the LILC0 plan we believe that we can reasonably assume some "best

effort" State and County response in the event of an accident. We also believe that their "best effort" would utilize the LILC0 plan as the best source for emergency planning infonnation and options. After all, when faced with a serious accident, the State and County must recognize that the LILC0 plan is clearly superior to no plan at all.

Nevertheless, we are unwilling to assume, as LILC0 would have us, that this kind of best effort government response would necessarily be adequate.

In point of fact, there are questions about the familiarity of State and County officials with the LILC0 plan, about how much delay can be expected in alerting the public and in making decisions and recommendations on protective actions, or in making decisions and reconnendations on recovery and reentry, and in achieving effective access controls. The record tells us that an evacuation without traffic controls would be delayed from li to 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />, but how important is this time delay? For which scenarios, if any, does it eliminate evacuation as a viable protective action?

To answer these questions, more information is needed about the shortcomings of the LILC0 plan in terms of possible lesser dose savings and protective actions foreclosed, asseming a best effort State and County response using the LILC0 plan as the source for basic emergency planning information and options. Accordingly., we remand LILC0's realism argument to the Licensing Board for further proceedings in accord with this l

Decision. The. Board should use the existing evidentiary record to the l

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maximum extent possible, but should take additicnal evidence where 10 necessa ry.

IMMATERIALITY As noted above, Intervenors asserted in Contentions 1-10 that LILC0 lacks legal authority to implement certain features of its plan, including controlling traffic. LILC0 argues that with the exception of the alerting and broadcasting functions, the features mentioned in the legal authority Contentions are not required by the regulations -- it is immaterial that LILCO might lack authority to implement them.

Staff and Intervenors opposed the immateriality argument principally on the ground that the inability to impose traffic control would impermissibly restrict "the range of protective actions" available in an emergency.

Intervenors also asserted that the immateriality theory was essentially factual in nature, and thus required further evidentiary hearings.

10Since LILC0 raised factual issues in its summary disposition papers, it was entirely appropriate for the Board itself to have discussed them by addressing coordination issues in its ruling. However, given the pleadings that have been filed on realism, and the further proceedings directed by this Decision, there is no prejudice to the parties even assuming arguendo that LILC0's argument rested on some new " theory" not previously disclosed to the parties.

. Commission Decision While NRC regulations may make no explicit mention of some of these emergency planning measures, such measures may nevertheless be required in order that there be reasonable assurance of adequate protective measures.

LILC0's materiality argument presents issues that are primarily factual rather than legal. The factual issues are subsumed within the scope of factual issues presented by LILCO's realism argument and can be considered by the Board in the remanded proceeding on realism.

CONCLUSION In som, we conclude that LILC0's plan should be measured against a standard that would require protective measures that are generally comparable to what might be accomplished with governmental cooperation.

We also conclude that more information is needed in order to decide how the LILC0 plan measures up to this standard.

In applying additional information to the analysis of the LILC0 plan, the Board should assume that the State and County would in fact respond to an accident at Shoreham on a best effort basis that would use the LILC0 plan as the only available l

comprehensive compendium of emergency planning information and options.

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Finally, we direct the Appeal Board to reconsider its deferral of LILC0's other emergency planning appeals in light of this Decision.

Comissioner Asselstine dissents. His separate views are attached.

It is so ORDERED.,

or the Co ission

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%:Lr *J g gSecretary of, the Comission Samuel J. C Tik g p 4

Dated at Washington, D.C.

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O Dissenting Views of Commissioner Asselstine The Commission's decision today endorses the idea that a nuclear plant may be allowed to operate w;;hout state and local government participation in or cooperation with emergency planning. This decision, in effect, takes the " planning" out of emergency planning and thereby undermines the foundation upon which our emergency planning regulations are based.

The Commission's decision is riddled with assumptions which seem to be sup-ported by nothing more than wishful thinking.

The whole reason for the Commission's emergency planning regulations was the realization after the Three Mile Island accident that in the case of an emergency with the potential for significant offsite radiation releases there would be insufficient time to make arrangements to protect the people living around nuclear plants.

For this reason, the Congress and the Commission felt it essential to require advance planning. This prior planning is designed to ensure that a variety of protective actions are available to respond to serious nuclear accidents and that whichever protective actions ara necessary can be implemented quickly and smoothly.

In adopting its new emergency planning regulations, the Commission expressly recognized that participation in planning by state and local governments and coordination between the governments and the licensee was central to effective emergency planning.

Congress provided, however, that the Commission could consider, in the absence of an approved State or local plan, whether a state, local or

utility emergency preparedness plan, or some integration of these plans, provides reasonable assurance that public health and safety is not endangered by the operation of the plant. Thus, as a purely abstract legal matter, the Commission is correct in saying that we are authorized to consider a utility plan alone. However, that should not end the inquiry.

The Commission must also consider whether the Commission should permit consideration of a utility plan where not only no state or local plan exists, but where the state and local governments refuse to participate in or cooperate with emergency planning.

This is not a case in which one local government or the state government alone has refused to participate in emergency planning and another governmental unit can take up the slack. All of the responsible governmental entities are refusing to participate in any way, shape or form in emergency planning for the Shoreham plant. There will, therefore, be nct governmental preplanning and nct governmental coordination with LILC0.

Moreover, according to the N.Y. courts, LILC0 does not have the legal authority to carry out certain governmental functions which are fundamentIa1 to an emergency response. 3/ All governmental responses will, therefore, be ad hoc even if, as the Commission assumes, the state and local governments do respond in the case in an emergency, and even if, as the Commission assumes, the state and local governments decide to implement the

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I also believe that we should have considered the preemption issues raised by ALAB-818 at the same time we considered the issues decided in this order.

LILC0 plan. El Emergency plans are complicated.

If an emergency plan is to work smoothly, everyone must be familiar with the plan and his or her responsi-bilities under the plan. As the Commission's regulations recognize, this requires governmental cooperation, training, and reher rsal.

Given the positions of the state and local governments in this case, none of these fundamental preparatory steps will be taken.

The question is, then, should the Commission under these circumstances consider a utility plan alone?

I believe not. What the Commission decides today is that a completely ad hoc response by the state and local govern-ments might be sufficient to provide reasonable assurance that there will be adequate protection of the public in the event of an emergency. I can-not conceive of circumstances in which that would be the case. The Commission's decision amounts to a judgment that the core of emergency planning need not exist. The Commission's endorsement of such an idea undercuts the very foundation of emergency planning.

I am equally troubled by another aspect of the Commission's order. The Commission says that LILC0 ought to be given a chance to show that even if the state and local emergency response is ad hoc there will be reasonable assurance that the LILC0 plan is, in the event of an accident, capable of i

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The Commission also assumes that the LILC0 plan is really only an interim compensating measure because once the Shoreham plant is licensed the State or County will see the light and begin to cooperate with LILC0 and participate in emergency planning for Shoreham.

The Commission's assumptions seem to be based on not much more than wishful thinking.

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achieving dose reductions "that are generally co".1 parable to what might be accomplished with government cooperation."

(Order, p.16) Unfortunately, it is not clear exactly what that means. The Commission specifically rejects the Licensing Board and Appeal Board decisions which presumed that the LILC0 plan must be capable of establishing the same level of assurance that a plan with governmental cooperation would achieve.

Is the Comission permitting a lesser level of assurance for the LILC0 plan? For example, if the ad_ hoc nature of governmental response would foreclose certain protective actions, would the Comission still find the LILC0 plan acceptable as long as the' dose reductions would be " generally comparable" to a plan with governmental cooperation? Unfortunately, the Comission does not clearly explain what it intends. The Commission certainly should not be permitting Shoreham to meet a lesser standard of protection for the public than other plants in the country have been required to meet.

I am not convinced that the licensee cculd, in the absence of any governmental cooperation, establish the same level of assurance as if there were a plan coordinated with the state and local governments.

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do not believe that the' Comission should establish a precedent which would l

allow for an ad hoc response on fundamental aspects of emergency planning

-- in this case the core of emergency planning.

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