ML20205F706
| ML20205F706 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 08/15/1986 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#386-356 OL-5, NUDOCS 8608190302 | |
| Download: ML20205F706 (154) | |
Text
$$sEMD UNITED STATES OF AMERICA 40 43 NUCLEAR REGULATORY COMMISSIOg0 gy,-
Itn(;); Riau y ORAP;fWiri, Before the Atomic Safety and Licormirw Board In the Matter of
)
)
LONG ISLAND IlGHTING-COMPANY
) Docket No. 50-322-OL-5
) (EP Exercise)
(Shornham Nuclear Power Station,
)
Unit 1)
)
LILCO'S OBJECTIONS TO INTERVENORS'
" EMERGENCY PLANNING CONTENTIONS RELATING TO THE FEBRUARY 13.1986 EXERCISE" J
1 Hunton & WlHlams 707 East Main Street P.O. Box 1535 Richalond, Virginia 23212 August 15, 1986 l
8608190302 86031S PDR ADOCK 05000322 G
PDR b
V DOCHETED USNRC
~86 AUG 18 A10:43 UNITED STATES OF AMERICA 0FFICE nr u.
NUCLEAR REGULATORY COMMISSION)0CMETING'/ M',)h~
BRANCH Before the Atomic Safety and Licensing Board In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-5
) (EP Exercise)
(SWnm Nuclear Power Station,
)
Unit 1)
)
LILCO'S OBJECTIONS TO INTERVENORS'
" EMERGENCY PLANNING CONTENTIONS RELATING TO THE FEBRUARY 13.1986 EXERCISE
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 August 15, 1986 l
i J
TABLE OF CONTENTS I.
Standards For Admissible Contentions In This Proceeding............... 2 A.
No Fundamental Flaw.................................... 2 B.
Challenges the Scenario.................................. 7 C.
Challenges FEM A Review................................. 7 D.
Lack of Specificity...................................... 8 E.
Lac k of Basis.......................................... 9 F.
Not Based on Exercise...................................
10 G.
Reopens Old Issues.....................................
11 H.
P h ase I..............................................
12 I.
Redundant
......................................13 J.
P rea m ble............................................
14 K.
Citations to Exercise Objectives...........................
14 L.
Summary of Types of Objections...........................
15 II.
Major Objections By Subject Matter..............................
17 A.
Legal Authority (EX 1-7).................................
18 B.
Realism (EX 8-14,18.A.18.B)
.............................20 C.
Notification (EX 15.A,15.B,15.H.16.B,16.C,16.D,16.E, 18.C(iv), 20.A, 20.B, 20.D, 22.J, 24, 33, 34, 45.C)................
22 D.
Public Information (ENC Operations)(EX 20.C,38,39, 4 2.C, 4 2.G, 4 5. F.)......................................
2 6 E.
Hospitals and Special Facilities (EX 15.D,15.K,16.H, 16.I,16.J,18.C(ll), 20.E, 20.H, 20.I. 21.D, 22.E. 22.G, 47)..........
28 F.
Schools (EX 15.E.15.F 15.G,16.E,16.F.16.G,18.C(v),
20.E, 20.F, 20.G, 21.C 22.B 22.C, 22.D, 26, 30, 42.B.
45.B................................................32
--w- -,,,.-,
-n-
~
G.
Ingestion Pathway (EX 15.I,16.A, 37)........................
37 H.
GUARD v. NRC Issue (EX 15.J. 48)
.........................42 I.
Relocation Centers (EX 15.L,16.N,20.L,20.M,22.A, 22.K, 31, 32, 44.B, 44.C, 44.F, 46, 47, 49......................
43 J.
Recovery /Re-entry (EX 15.M).............................
49 K.
Training (EX 27, 28, 42, 45, 50)
............................53 L.
Buses (EX 16.K,18.C(1), 20.J, 21.B, 22.H).....................
57 M.
Evacuation (EX 21.F. 25, 29, 41, 42.A, 45.A
...................58 N.
Mobilization (EX 40.A. 40.B, 40.D, 41.A 41.D, 42.F, 43 (pref ace), 4 3. A)........................................
61 O.
Dose Assessment (EX 23, 35, 36, 45.D)........................
65 P.
Shadow Phenomenon (EX 22.F. 40.C, 40.D, 41.C, 43.B, 4 4, 4 9. C ).............................................
6 7 III.
Summary of Objections (both those in Section II and all others) contention-by-contention......................................
72 IV.
No Objec tions.............................................
14 8 V.
Conclusion...............................................
14 8 4
1986 LILCO, Augustd5,N.
's UNITED STATES OF AMERICA ED NUCLEAR REGULATORY COMMISSION
? Als yg A10:43 Before the Atomic Safety and Licensing B6ard ~
/
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S OBJECTIONS TO INTERVENORS'
" EMERGENCY PLANNING CONTENTIONS RELATING TO TIIE FEBRUARY 13,1986 EXERCISE" On August 1,1986, Intervenors Suffolk County, the State of New York, and the Town of Southampton filed their " Emergency Planning Contentions Relating to the February 13, 1986 Exercise." These contentions address, or purport to address, the emergency planning exercise conducted by the Federal Emergency Management Agency (FEMA) on February 13, 1986. For the reasons stated below, LILCO objects to many of the contentions.
Even with five and a half months to review the exercise results, and despite having had numerous observers at the event and thousands of documents to examine, the Intervenors have produced contentions that are almost all inadmissible. The con-M tentions are little more than a recycling of the FEMA Report on the exercise plus a long series of restatements of issues already litigated. Where there has seemed to be a legitimate issue, given the pleading standards of the NRC, LILCO has not objected. But these legitimate issues are few and far between. Af ter years of agency review and 1/
FEMA, Post Exercise Assessment of the February 13, 1986 Exercise of the Shoreham Nuclear Power Station Local Offsite Radiological Emergency Response Plan
( Apr.17,1986).
i hearings the Board now has the duty to focus its efforts on potentially serious matters, not flyspecks. Accordingly, LILCO asks in this pleading that the Board throw out virtu-ally all the contentions except for three (specified later in this pleading) about LERO's handling of traffic impediments, speed of mobilization of traffic guides, and transmittal of information from the Emergency News Center (see Section IV below).
These objections are organized as follows.Section I sets out the legal standards for the admissibility of contentions in a proceeding such as this one and explains the various types of objection (eg, lack of basis and specificity, f ailure to plead a "funda-mental flaw"). Sections II and III contain the actual objections.E Section IV lists the contentions to which LILCO does not object.
I. STANDARDS FOR ADMISSIBLE CONTENTIONS IN THIS PROCEEDING The 11 types of objection made in this pleading are explained in Sections A through J below.
A. llo Fundamental Flaw First and foremost, the contentions, to be admissible, must allege a " fundamental flaw" in LILCO's offsite emergency plan (hereinaf ter "the Plan"). This principle is now firmly established. The Commission traditionally has viewed emergency planning exer-cises as relevant only to the extent that they reveal fundamental defects in the way an emergency plan is conceived. Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir.1984), cert. denied,105 S.Ct. 815 (1985). Such defects must be distinguished from those minor ad hoc problems "which only reflect the actual state of emergency 2/
The objections in Section II are organized by subject matter, matched as nearly as possible to the subject-matter areas in the proceeding to date. The goals of Section II are to illuminate redundancy and to help place the contentions in the context of is-sues already litigated and decided. The objections in Section III proceed contention by contention, applying themes brought out in Section II and adding any contention-specific arguments.
-- preparedness on a particular day in question." M. at 1441. Accordingly, contentions al-leging a fundamental flaw and satisfying other contention requirements should be ad-mitted; however, contentions alleging only " minor or readily correctable problems" should be rejected. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant),
LBP-85-49,22 NRC 899,910 (1985).E 4
In this very case the Commission ordered these proceedings to consider any evi-dence Intervenors might wish to offer "to show that there is a fundamental flaw in the i
I LILCO emergency plan." Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-11, slip op. (June 6,1986). The Commission directed this Board to admit only those contentions that satisfy the specificity requirements of 10 CFR S 2.714 by (1) pleading that the exercise demonstrated fundamental flaws in LILCO's Plan and (2) providing bases for the contentions which, if shown to be true, would demonstrate a fundamental flaw in the Plan. I_d. at 5. In accord with the Commission's order, LILCO proposes the following three part test for use in determining whether a fundamental l
flaw has been alleged.
i First, obviously the alleged flaw must be " fundamental." What is fundamental i
about an emergency plan is the protection of the public health and safety. Therefore, the threshold test should be this: if the exercise had been a real emergency, would the alleged " flaw" have substantially affected the health and safety of the public?
3 l
3/
The only applicable case precedent for contentions about an exercise is Shearon Harris. In that case, the board rejected at the outset all but two proffered exercise contentions, and the remaining two were eliminated at the summary disposition stage.
See Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-85-49, 22 4
NRC 899 (1985); LBP-86-11,23 NRC 294 (1986). The contentions alleged extensive de-fects in notification of emergency response personnel, communications, emergency medical services, decontamination training, siren activation, rumor control, dose as-sessment, use of the EBS, radiation survey training, hard-copy transmission of informa-tion, and emergency assistance to boaters and campers. Only the communications and EBS contentions were admitted, and they were thrown out on summary disposition. All others failed to allege problems which, even if demonstrated f actually, would amount to fundamental flaws in the emergency plan.
l l
Second, the contention must allege a systemic or pervasive series of defects, rather than merely one or more isolated and essentially independent problems. The contention must allege that an essential component of the plan is flawed conceptually;
" minor or ad hoc problems occurring on the exercise day" are not a proper subject for litigation. See Shearon Harris,22 NRC at 909-10. In particular, a contention is not ad-missible simply because it lists a number of allegedly similar problems. Performance of a certain function should be evaluated in its entirety, not according to the sheer num-ber of alleged errors.
Y by means of addi-Third, the alleged problem must not be readily correctable tional training, the purchase of new equipment, or some other reliable and verlflal;1e method. The alleged defect must be fundamental; that is, it must be susceptible of cor-rection only through substantial, far-reaching revision of the written emergency plan.
One cannot conclude that there is a fundamental flaw simply because FEMA has found a " deficiency" or other shortcoming. FEMA classifies problems it observes during an exercise as " deficiencies," " areas requiring corrective actions" (ARCAs), or " areas recommended for improvement." See FEMA Guidance Memorandum EX-1, Remedial Exercises (July 15, 1985). Under FEMA's definition and usage, none of these character-izations automatically corresponds to the NRC concept of " fundamental flaw." Thus In-tervenors cannot rely on such labels as authority for the proposition that a certain TEMA finding is a fundamental flaw in the LILCO Plan.
Definitionally, individual "ARCAs" and " areas recommended for improvement" do not constitute " fundamental flaws." FEMA defines "ARCA" as a " demonstrated and observed inadequacy of state and local government performance which, although its y
However, " fundamental" flaw does not mean " irremediable" flaw.
Obviously there may be flaws that, while they are " fundamental" if not corrected, can be cor-rected.
-.-,,---.y-
. correction is required during the next scheduled biennial exercise, is not considered by i
itself to adversely impact public nealth and safety." FEMA Guidance Memorandum at j
EX-1. An " area recommended for improvement" is a problem area observed during an exercise that is not considered to adversely impact health and safety. Id. at 1-2. Nei-ther of these terms indicates a problem that adversely affects public health and safety, and neither indicates a conceptual flaw in the plan that renders the emergency re-J sponse unimplementable. Thus, neither constitutes a fundamental flaw that is a proper subject of hearings.
Moreover, even a " deficiency" does not automatically constitute a fundamental flaw.
FEMA defines deficiencies as " demonstrated and observed inadequacies that would cause a finding that offsite emergency preparedness was not adequate to provide reasonable assurance that appropriate protective measures can be taken to protect the health and safety of the public." FEMA Guidance Memorandum EX-1 at 1.
Although this classification obviously denotes a more serious problem than an ARCA, a deficien-cy is not necessarily the same thing as a " fundamental flaw." Obviously some problems meeting the definition of " deficiency" may be easily correctable. If a deficiency is de-monstrably correctable, FEMA does not require a remedial exercise.E g/
A remedial exercise is presumptively required for any deficiency in the following areas:
l 1.
Assignment of responsibility:
1 2.
Alert and notification methods and procedures; l
3.
Emergency communications; 4.
Public education and information; i
5.
Accident assessment; i
6.
Protective response:
7.
Radiological exposure control; and l
8.
Medical and public health support and services.
But a remedial exercise need not be undertaken if correction of the deficiency can be demonstrated by other remedial actions. FEMA Guidance Memorandum EX-1 at 2.
I i
It is the case, however, that a " deficiency" found by FEMA makes it more likely that a fundamental flaw exists.
In this proceeding FEMA has identified five
" deficiencies" affecting four areas.
In three of these areas (which include four deficiencies), LILCO believes there is a basis for an admissible contention and that In-tervenors have succeeded in pleading one. Hence, although LILCO disagrees with Inter-venors on the merits of these issues, LILCO has not objected to three contentions where the Intervenors have focused on the deficiencies (see Section 3 below).
It should not be expected that very many contentions will survive the "funda-mental flaw" test, particularly atter an exercise that was, by and large, an outstanding success like the February 13 exercise of the LILCO Plan. The contentions, af ter all, come before the Board "at the end of a lengthy public evaluation process - a process I
designed to surface serious planning defects." Shearon Harris,22 NRC at 909. In the case of Shoreham this process has been particularly thorough. Before the exercise ever began LILCO had already made countless changes to the Plan, including those prompted l
by experience in drills, those required by prior emergency planning litigation, and those j
designed to meet Intervenors' objections. It is therefore quite surprising to see 162 1
j pages of contentions, and not at all surprising that most of them do not meet the funda-mental flaw test.
i i
It is true that most, if not all, of the contentions recite that there is a "funda-mental flaw." But more than a mere incantation of these words is required to make an l
admissible contention, else the requirement would be of no effect except as a trap for l
uninformed advocates who failed to recite it unawares. Rather, the nature of the al-
]
leged flaw, as set out in the contention, must be examined to see if it might truly be a fundamental flaw, assuming the facts are as the contention states them. In most cases the Board will find that the facts recited in the contention, even assuming them proved, do not by any stretch of the imagination constitute a fundamental flaw, hence the large number of "No Fundamental Flaw" objections in this pleading.
l l
i l
1 I
1 B. Challenges the Scenario Many of the contentions claim simply that the exercise did not test at al! (or in sufficient detail) one or another feature of the LILCO Plan. To these contentions LILCO objects because they " challenge the (exercise] scenario," not the Plan itself.
This objection is a particular type of "no fundamental flaw" objection (see above), since it makes the obvious point that a failure to test some part of a plan is not, as a matter of logic, a flaw in the plan itself. As the Commission statcd, a contention must plead "that the exercise demonstrated fundamental flaws in LILCO's Plan." CLI-86-11, slip op. at 5 (emphasis added). Accordingly, Intervenors'" failure to test" contentions should be rejected.
This is not to say that the adequacy of the FEMA-approved scenario is com-pletely immune from ASLB review. It would be possible to have an admissible contei.-
tion alleging that the scenario was so deficient that it simply failed to live up to the standard the NRC requires for its ultimate licensing decision. But to be admissible such a contention would have to allege, with adequate basis and specificity, at least that the scenario was materially different from other FEMA-approved scenarios at other nucle-ar plants. This standard Intervenors have failed to meet.
C. Challenges FEM A Review The contentions that " challenge FEMA's review" are really challenges to FEMA and NRC regulations. They directly challenge the adequacy or validity of FEMA's re-view and evaluation process.
It is FEMA's assigned duty to observe and evaluate exercises of radlological emergency plans and to report its findings to the NRC. Se_e 44 CFR SS 350.9 (a),
351.20(f). Just as a contention challenging the adequacy of the NRC Staff's review of an application does not present a litigable issue in an operating license proceeding, Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812,22
1 NRC 5,55-56 (1985), neither does one challenging FEMA's review of an exercise. FEMA has substantial experience in evaluating emergency plans and exercises, and its assess-ment process should not be open to attack in exercise hearings.
In Shearon Harris, for example, the licensing board gave substantial deference to FEMA's technical findings regarding the exercise. The board cited the rule in 10 CFR S 50.47(a)(2) that FEMA findings on questions of adequacy and implementation capabili-ty constitute a rebuttable presumption in NRC licensing proceedings. Slicatim Tiarris, 22 NRC at 910. Acknowledging that that regulation is not directly applicable at the contention stage, the board nevertheless found that the regulation " implies that a Board should give a FEMA finding of adequacy or correctability some deference at the con-tention stage." Ld. Accordingly, naked attacks on FEMA's evaluation criteria and con-clusions should be rejected at the outset.
The " Challenges the Scenario" and " Challenges FEM A's Review" objections are of course similar; both apply to contentions whose thrust is to find fault with the exercise and not the Plan, with the test rather than what is being tested. And in some cases the contentions are not clear enough to reveal whether the " Challenges the Scenario" or
" Challenges FEMA's Review" applies. Accordingly, in many cases the two objections will be lumped together in Sections 11 and III below.
D. Lack of Specificity
" Lack of specificity" means that the contention is not sufficiently precise to fairly apprise the other parties of what is to be litigated. The purpose of the specif-icity requirement is twofold: to demonstrato that further inquiry into the matter being raised is warranted and to put the parties on notice as to what they will have to defend against or oppose. Carolina Power & Light Co. (ll.B. Robinson Steam Electric Plant, Unit 2), Docket No. 50-261-OLA (April 12,1983) (unpublished). A useful rule-of-thumb is to ask what type of evidence would have to be presented to either support or refute l
the contention. In the case of the Intervenors' contentions, sometimes one simply can-not tell.
Thus, LILCO objects to contentions couched in vague, murky language. LILCO is entitled to know exactly what issues it is being confronted with and which facts Inter-venors believe they should be entitled to litigate in order to show that a fundamental flaw exists in the LILCO Plan. This is particularly the case where, as here, (1) the scope of the proceeding is narrow,SI (2) Intervenors are represented by experienced counsel,Il and (3) they have had months of time and abundant documentation to help them write their contentions.
E. Lack of Basis LILCO objects to many of the contentions because they fall adequately to set forth a basis. The basis for each contention must be set forth with reasonable speci-ficity.10 CFR S 2.715(b). A contention must be rejected if it falls to allege facts that tend to show the existence of the asserted problem. Intervenors must give a " reason-able explanation or plausible authority" for factual assertions.
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-81-24,14 NRC 175, 184 (1981).
Although Intervenors need not detail the evidence that will be offered in support of proffered contentions, Mississippi Power & Light Co. (Grand Gulf Nuclear Station, s/
The Board acknowledged in its recent order that this proceeding is merely an offshoot of the EP litigation," involving a very limited issue, the matter of establishing fatal flaws in the LILCO emergency plan as disclosed by the emergency planning exer-cise." Memorandum and Order (Objections to Prehearing Conference Order), ASLBP No. 86-533-01-OL, slip op, at 5 ( August 1,1986).
2/
Intervenors twice previously have written extensive sets of contentions - in Phase I and on the core emergency planning issues - and are well-schooled in NRC practice and procedures. Contentions drawn by counsel experienced in NRC practice are required to exhibit a high degree of clarity and specificity. Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit No.1), ALAD-279,1 NRC 559,577 (1975).
Units 1 and 2), ALAB-130, 6 AEC 423 (1973), they are not allowed to file vague, unparticularized contentions and then try to flesh them out later. Duke Power Co. (Ca-tawba Nuclear Station, Units 1 and 2), ALAB-687,16 NRC 460 (1982). Finally, an inter-venor must make a good-faith effort to understand underlying documents and to trans-fer that understanding to contentions with clearly articulated bases. See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ASLBP No. 82-471-OL, slip op.
(May 21,1986).
In the exercise contentions, Intervenors have sometimes failed to allege facts that, if true, would support the conclusion they want the Board to reach. A good (if re-petitive) example is EX 20.G/21.C/30/42.B/45.B, which alleges that a bus sent to the Ridge Elementary School took three hours to arrive. But Intervenors fail to allege that this would have affected the public health and safety by causing the school children to be delayed beyond the normal evacuation time. Nor could they allege this crucial f act, because even a three-hour delay of this sort would leave the bus ample time to evacu-ate the school children within the same time period as the general public.
F. Not Based on Exercise In this particular proceeding the most frequent " lack of basis" objection is that a contention is not based on the FEMA exercise. A sine qua non of a contention in this.
proceeding is that it be based on something revealed by the exercise of February 13, 1986. As this Board noted in its August 1,1986 Memorandum and Order (Objections to Prehearing Conference Order), the scope of this proceeding is to consider evidence to show," based on the emergency planning exercise," that there is a fundamental flaw in I
the LILCO Plan (slip op, at 2-3). The issue is establishing flaws in the LILCO Plan "as disclosed by the emergency planning exercise" (slip op. at 5).
G. Reopens Old Issues In many cases the contentions do not reflect an effort by Intervenors to point 1
out discrete problems revealed by the exercise. Instead, Intervenors have used the ex-ercise events merely as a vehicle to dredge up and relitigate issues that have been liti-gated previously. Accordingly, LILCO objects to all contentions that raise issues that have already been litigated, that could have been litigated in earlier proceedings,N or J
that are now pending before other forums such as the Appeal Board or the Commission.
In most cases the issues raised here were litigated during the core emergency planning hearings. Perhaps the best example of this is EX 22, which spans 17 pages. It asserts that the exercise was premised on false assumptions, each of which is detailed i
I in a subpart. All each subpart represents is a restatement of a previously litigated issue, eA, school plans (B), availability of school bus drivers (C), reception centers for 4
)
the general and school populations (A, D), the " shadow phenomenon" (F), etc. Other glaring examples are Intervenors' attempts to resurrect the issues of overloaded tele-phone lines (EX 22.J) and the GUARD v. NRC issue of planning for offsite "contami-i I
nated injured" people (EX 15.J 48). Intervenors cannot be permitted to relltigate issues 4
simply because the Plan hrs been exercised.
l There are five %parate sets of issues that have already been litigated or are being addressed in other forums and are therefore outside the scope of this proceeding:
1.
Issues decided by the ASLB and affirmed in ALAB-832; 2.
" Legal authority" issues, now before the Commission and the courts; 3.
Three issues of which LILCO has asked Appeal Board review, and which are still before the Appeal Board (conflict of in-i terest, State plan (EP 92), and the number of people who l
might come to the reception center);
3/
In Union of Concerned Scientists the D.C. Circuit held that the NRC could limit j
cxercise hearings "to issues - not aircady litigated - that it considers material to its j
decision." 735 F.2d at 1448.
4.
Factual issues about the suitability and accessibility of the Nassau Coliseum, the EPZ size, hospital reception centers, and role conflict of school bus drivers, remanded by the Ap-peal Board but held in abeyance by the Appeal Board and Commission; and 5.
The " Phase 1" issues (onsite plan and interfacing portions of the offsite plan - like the sirens - that could have been lit-igated in 1982-83).
H. Phase I A specific type of " Reopens Old Issues" objections the " Phase I" objection applies if the contention raises an issue that should have been raised in the onsite portion of this proceeding:
... Phase I emergency planning was defined to include not only onsite matters, but also matters such as gaps in siren coverage within 10 miles of the Shoreham plant, notification of and communications with ofIsite response organizations, arrangements and training for offsite assistance resources needed onsite (el, medical and fire services), and assess-ment and monitoring by LILCO of actual or potential onsite and offsite radiological releases and doses.
Memorandum and Order Denying Suffolk County's Motion to Terminate the Shoreham Operating License Proceeding, LBP-83-22,17 NRC 608, 645 (1983). The Phase I issues were those "within LILCO's responsibility to perform whether it be onsite or offsite."
Prehearing Conference of April 14,1982, Tr. 796; see also Tr. 797-802. They were the issues " currently capable of final resolution" even without an offsite plan. Prehearing Conference Order (Phase ! - Emergency Planning) at 2 (July 27,1982); s_ee also Prehearing Conference Order at 7 (April 20,1982). They were to include the "first channel of communication, if you will, from the utility to the governmental authori-ties." Tr. 7225-26 (July 20,1982). They were to focus on LILCO's communications with the "first line" of authorities and on the forms of backup communications avullable.
Prehearing Conference Order (Phase 1 - Emergency Planning) at 11 (July 27,1982).
. ~..
Three years ago, the Board made clear that Phase Iissues could no longer be liti-gated in this proceeding:
... we will not consider any contention addressing LILCO's onsite plan or other matters which either were the subject of a previously admitted Phase I contention or clearly were within the permissible scope of the Phase I emergency plan-ning litigation.
Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-22,17 NRC 608, 645 (1983); see also Memorandum and Order Denying Suffolk County Motion for Leave to File Contentions Regarding Onsite Emergency Planning (Aug. 5,1983). LILCO objects to all such contentions as a reprise of what has gone before.El 4
I. Redundant As was the case with the 207 pages of EP contentions,N! the EX contentions are t
excessively repetitious. Intervenors have transformed what could have been about fif-teen pages of contentions into a 162 page agglomeration of repetitious, cross-referenced, unnecessarily complex verbiage. The same issues are raised over and over again with perhaps a word or sentence changed to indicate what Intervenors will argue is a different context or emphasis. For example, Contention EX 15.B alleges that the cxercise demonstrated a fundamental flaw in the Plan because procedures for notifying people in the water portion of the EPZ were not exercised. Contention EX 16 alleges 2/
LILCO recognizes that the "Not Based on the Exercise," " Reopens Old Issues,"
and " Phase 1" objections might easily be lumped together and called something like "r_es ludicata" or "outside the scope of this proceeding." All three apply to contentions the thrust of which is to raise issues that are independent of the results of the February 13 exercise. Nevertheless, LILCO has maintained the three separate objections because each of them represents a slightly different way of looking at the problem that proves l
useful in particular instances.
M/
To distinguish them from the August 1,1986 EX Contentions about the exercise, this pleading will use the convention "EP Contention" to refer to the offsite conten-tions dated July 26, 1983, and revised January 12,1984. (These are printed at 21 NRC 958-1030.)
l
.__ the exercise demonstrated a fundamental flaw because the Coast Guard was not asked to exercise its function of notifying people in the water portion of the EPL Conten-tion EX 20 alleges a fundamental flaw because FEMA did not review actions taken to demonstrate notification of the public on the water portion of the EPZ. All of these f
contentions say the same thing.
LILCO objects to such redundancy. There is ample precedent in this proceeding for denying admission of repetitive contentions. See Special Prehearing Conference a
Order (Ruling on Contentions and Establishing Schedule for Discovery, Motions, Briefs, Conference of Counsel, and Hearing), slip op. at 7,13, 24, 26 (Aug.19,1983).
In particular, LILCO objects to contentions that incorporate other contentions by reference. Examples are EX 17 (citing EX 15 and 16), EX 18.A (citing EX 15 and 16),
and EX 18.C (citing EX 16), and EX 50 (citing EX 27,28,33-43 45, and 49).
l J. Preamble l
Some of the contentions include a preamble, which Intervenors use to insert i
mini-briefs about their theory of the case or to give their opinions on what applicable i
policies ought to be. See, e_.L, Contentions EX 1-7,8-14. Others include prefatory ma-terial that looks just like a preamble. Such preambles and other superfluous material j
i are not admissible and indeed have been excluded before in this very proceeding. See Special Prehearing Conference Order (Ruling on Contentions and Establishing Schedule for Discovery, Motions, Briefs, Conference of Counsel, and Hearing), Docket No.
I j
50-322-OL-3, slip op. at 7 (Aug.19,1983). In cases in which a preamble or similar pref-l atory material should be stricken on this ground, LILCO has made the " Preamble" objec-tion.
i K. Citations to Exercise Obiectives In addition to the generic types of objection described above. LILCO objects generally to Intervenors' references to the exercise objectives. Intervenors of ten allege in their contentions that certain specified exercise objectives were not met. Their ref-erences to the exercise objectives are for the most part unhelpful and unreliable, of ten citing objectives that have nothing to do with the facts from the exercise recited in the contention.UI Because of this unreliability, and because citatfor.s to objectives are un-necessary in light 01 the " fundamental flaw" criterion, the Board should strike all refer-cnces in the contentions to exercise objectives.
L. Summary of Types of Objection For ease of reference, here is a summary of the types of objection that are made in this pleading:
No Fundamental Flaw - The contention alleges a flaw or flaws that (1) would not impair public health and safety, (2) are isolated, minor, or ad hoc, or (3) are easily correctable.
Challenges the Scenario / FEMA Review - The contention either al-leges a flaw in the exercise scenario, not in the emergency plan, or challenges how thorough the FEMA observers were or how they characterized or evaluated their observations.
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For example, in Contention EX 20.J Intervenors challenge FEMA's failure to re-view (1) the time needed to evacuate the transportation-dependent population of the EPZ, (2) the actual availability of the 333 buses used to evacuate the entire EPZ, and (3) the appropriateness of the protective action recommendation for the transportation-dependent population. Intervenors then claim that because of these omissions FEMA's conclusions with regard to objectives EOC 12 and 16 and FIELD 9 (for the Port Jefferson and Riverhead staging areas) were incorrect. The cited objectives require demonstrations of LERO's ability to receive and interpret radiation dose projections and actual field measurements and then to make protective action recommendations based on applicable PAGs (EOC 12), of LERO's " organizational ability to manage" an orderly evacuation of the EPZ (EOC 16), and of a sample of resources needed to implement an orderly evacuation (FIELD 9).
Even a quick comparison of these objections with FEMA's alleged omissions shows the disjunction of Intervenors' pleading.
_ Lack of Specificity - The contention is not sufficiently precise to alert the reader to what Intervenors seek to litigate.
Lack of Basis - The contention does not state a sufficient factual basis.
Not Based on Exercise - The contention is not based on anything that happened during the FEMA exercise.
Reopens Old Issues - The contention repeats an issue that was liti-gated or could have been litigated or that is now before the Com-mission or the Appeal Board.
Phase I - The contention raises an issue that was ripe for litigation in the " Phase I" part of this proceeding (that is, issues about the onsite emergency plan and offsite issues, like the adequacy of the sirens and tone alert radios, that could have been litigated in 1982-83).
Redundant - The contention repeats other contentions.
Preamble - Preambles and other background material or argumen-tative material are inadmissible.
II. MAJOR OBJECTIONS BY SUBJECT MATTER Section II organizes the contentions according to subject matter. As will be seen, the contentions are much more numerous than the basic factual issues, arising out of the FEMA exercise, that they attempt to raise. (For example, the single, simple f act that the U.S. Coast Guard did not actively participate in the exercise is expanded into four different contentions, EX 15.B.16,18.C(iv), and 20.) To make the issues more manageable, LILCO has divided them into 16 categories (eg, hospitals and special fa-cilities, training, relocation centers) based on the core facts involved, similar to the categories used by this Board in its Partial Initial Decision. Once the contentions have been separated into the smaller number of factual pigeonholes, a single objection can citen be applied to several contentions at once.
Section III, on the other hand, is organized not by subject matter but contention-by-contention in numerical order.
Also, it lists in summary fashion all LILCO's objections to each contention, not just the ones from Section II that apply to several contentions at once.Section IV contains a list of contentions to which LILCO does not object.
The 16 categories of contentions in Section II are the following:
A.
Legal Authority B.
Realism C.
Notification D.
Public Information E.
Hospitals and Special Facilities F.
Schools l
G.
Ingestion Pathway H.
GUA RD v. NRC Issue I.
Relocation Centers J.
Recovery / Reentry K.
Training L.
Buses M.
Evacuation N.
Mobilization O.
Dose Assessment P.
Shadow Phenomenon
Each category will be discussed in its turn below.
1 A. Laral Authority (EX 1-7) i In Contentions EX 1-7, the " legal authority" contentions, Intervenors assert that i
the exercise identified the " fundamental flaw" that certain important functions (chiefly evacuation command and control, and making and implementing protective action rec-l cmmendations) in the LILCO Plan are illegal under the March 28,1985 Partial Declara-tory Judgment and February 20,1985 opinion entered in Cuomo v. Long Island Lighting Co., Consol. Ind. No. 84-4615 (N.Y. Sup. Ct., slip op., Feb. 20, 1985), aDDeal Dending.
i Contentions EX 1-7 should not be admitted because (1) the issues raised in them have f
already been litigated and (2) the exercise sheds no light upon the legality of the LILCO i
l Plan, and therefore the issues are not within the scope of this proceeding.
ReoDens Old Issues Intervenors ask this Board in Contentions EX 1-7 to relitigate the legal authority contentions previously considered by the Board in EP Contention 1 (guiding traffic),2 1
(blocking roadways, erecting barrlers in roadways, and channelling traffic),5 (directing broadcasting of EBS messages), and 6, 7, and 8 (making decisions and recommendations to the public concerning protective actions, ingestion exposure pathway, and recovery l
and reentry). See PID,21 NRC at 958-63. The Board should decline to reopen these is-1 sues. Many pages of briefs have been filed with this Board, the Appeal Board, the Com-3 mission, and the courts on the issues of LILCO's authority to perform certain key emer-gency response functions absent government participation. This Board and the Appeal 1
l Board ultimately ruled against LILCO on those issues.
Long Island Lighting Co.
i (Shoreham Nuclear Power Station. Unit 1), LBP-85-12, 21 NRC 644, 895-919 (1985),
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Briefing was completed last winter; oral argument is anticipated sometime this j
fall.
I i
I aff'd, ALAB-818, 22 NRC 651 (1985). The Commission has pending before it LILCO's appeal on the preemption argument in response to the legal authority contentions and has remanded for further proceedings the realism and immateriality arguments, Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, slip op. (July 24, 1986). As to LILCO's authority under State law to perform the activities listed in Contentions EX 1-7, the New York Supreme Court has ruled against LILCO: LILCO's ap-peal is pending. Should Intervenors wish to brief further the legal authority issues, those forums are the appropriate places for them to do so. Indeed, given the plethora of paper already filed on these issues, it is difficult to understand what light might be shed by further briefing.
Lack of Basis / Lack of Specificity It is difficult, too, to know what precisely Intervenors contemplate litigating under EX 1-7, and for that reason EX 1-7 lack basis and specificity. If they purport to raise the issue of LILCO's legal authority to perform the challenged functions under State law, that is before the New York courts in Cuomo, supra; if it is LILCO's legal au-thority under federal law that Intervenors wish to address, that is before the Commis-sion. If the purpose of the contentions is to establish that the challenged activities are required to meet NRC regulations, LILCO long ago conceded that they are, excepting the traffic control functions mentioned in Contentions EX 5 and 7. (Even so, the exer-cise shed no light on the legality of traffic control.) And to the extent that Intervenors are suggesting that the exercise was somehow illegal, that issue was decided against In-tervenors in LILCO v. County of Suffolk,628 F.Supp. 654 (E.D.N.Y.1986).
Not Based on the Exercise Contentions EX 1-7 are also inadmissible because they do not establish a flaw in the LILCO Plan " disclosed by the emergency planning exercise."
See Long Island Lighting Co. (Shoreham Nuclear Power Station Unit 1), LDP 86-533-01-OL (Aug.1
. _. 1 1986). The contentions stand for the proposition that certain activities LILCO contem-plates under the Plan would be illegal under Cuomo v. LILCO if implemented in an ac-tual emergency by LILCO alone. The exercise shed no light on that issue, and Interve-nors offer no new information based upon the exercise in support of Contentions EX 1-7. Those contentions, therefore, are not litigable in this proceeding.
B. Realism (EX 8-14,18.A.18.B)
Nine contentions address LILCO's " realism" argument - the principle that in a real emergency, everyone (particularly the Suffolk County and New York State govern-ments) would do his best to protect people. The obvious " realism" contentions are EX 8-14; others include EX 18.A and 18.B. These look much like an effort to see how many different ways one or two basic ideas can be restated. In essence, they allege lit-tie more than that the State and County did not participate in the exercise.
1.
Assigning Responsibilities to State and County Contentions EX 10 and 14 in part address the Plan, without regard to the exer-cise, claiming that the Plan does not assign specific responsibilities to the State and local governments. In essence, EX 10 and 14 are as follows:
The Plan does not establish or assign " specific 10 emergency responsibilities of State and local governments"; the Plan, as exercised, did not demonstrate the State and local governments' conduct or performance of " primary responsi-bilities for emergency response."
The exercise did not involve the " active par-14 ticipation" of the governments, and the Plan does not assign " primary responsibilities for emergency response to the govetnments."
Not Based on Exercise Parts of EX 10 and 14 are inadmissible because they are not based on the exer-cise. They allege rather that the Plan should be written to assign certain responsi-bilities, a claim that could be made even if there had not been an exercise.
__ No Fundamental Flaw They also do not raise the possibility of a " fundamental flaw" in the Plan. It is unnecessary for LILCO to specify here the precise responsibilities of government offi-cials in the LILCO Plan. It suffices to say that the concept of the Plan is to be flexible enough to accommodate whatever steps the Intervenors may take on the day of an cmergency; at that time LILCO would work with whomever the County and State desig-nated to be in charge. This is the essence of the " realism" principle. Thus, the " flaw" alleged by the contentions is really a strength, and an important feature, of the Plan.N Lack of Specificity Finally, EX 10 and 14 lack specificity because they do not specify what
" responsibilities" should be assigned or to whom.
2.
" Passive" Role of State and County Simulators The rest of EX 10 and 14, as well as EX 8, 9,11,12,13,18.A, and 18.B. claim that the simulated State and County personnel did not take a sufficiently active role in the exercise:
l EX 8 The exercise scenario did not call for the gov-ernments to use their emergency powers or
" carry out major portions" of the response.
The government simulators did not assume 9
command or control, interact with the public, or seek to perform governmental functions.
The scenario stipulated that the governments 11 would not activate their emergency powers and authorities, would not assume responsibill-ty for protective action decisions, and would not take any actions to implement such deci-sions.
13/
These Objections do not take up the effect of the Commission's July 24 decision, CLI-86-13, on the realism argument. Certainly that decision's holding that Intervenors would make use of the LILCO Plan, as the best available resource, in an emergency can only tend to simplify the range of circumstances for which LILCO must be prepared.
_ _ _ i.
The scenario stipulated that state and local 12 governments, as simulated, would remain " pas-sive observers."
The exercise did not involve the " active par-13 ticipation" of the governments, and so the ex-ercise was not an exercise of actual govern-ment actions.
18.A -
The scope of the exercise was so limited it could not yield meaningful results. As detailed in Contentions 15 and 16, there was a lack of required governmental participation."
There was no participation by Suffolk County, 18.B the State of New York, or Connecticut.
Challenges the Scenario / Lack of Specificity These contentions are inadmicsible first, because, they allege a deficiency in the i
FEMA-approved scenario, not in the Plan. In essence they do little more than claim that the State and County did not participate in the exercise. This is not a flaw in the Plan but rather a groundrule of the exercise.
j Second, these contentions lack specificity, since they do not specify what roles should have been taken by the State and local government simulators.
i C. Notification (EX 15.A.15.B.15.H 16.B.16.C,16.D, 1
16.E.18.C(iv). 20. A. 20.B. 20.D. 22.J. 24, 33, 34, 45.C)
)
Intervenors' numerous contentions raise only four issues challenging the LILCO Plan's ability to notify the public and support organizations: (1) prompt notification system, (2) notification of boaters, (3) overload of commercial telephones, and (4) route l
alerting. Not one of the issues raised by these sixteen contentions is litigable as part of this proceeding.
l 1.
Prompt Notification System i
Intervenors charge that the existence, operability, and adequacy of the prompt l
notification system, which consists of sirens, tone alert radios, and the EBS system, was not tested during the exercise and, therefore, that the Plan is fundamentally flawed t
(see Contentions EX 15.A,16.C.16.D. 20.A. 20.B. and 24).
l Pham I Intervenors are attempting to revive issues about the adequacy of the siren sys-tem and tone alert radio system that were addressed and dismissed in Phase 10 of the proceeding as a sanction for Intervenors' defiance of a Board order. See Memorandum and Order Confirming Ruling en Sanctions for Intervenors' Refusal to Comply with Order to Participate in Prehearing Examination, LBP-82-115,16 NRC 1923 (1982). In-tervenors are estopped by the decision in Phase I from raising these issues now.
Challenges the Scenario / FEMA Review In addition, these contentions should be dismissed because the fact that the siren system was not sounded and LILCO's EBS system did not broadcast during the exercise does not indicate that there is a " fundamental flaw" in the LILCO Plan. During the ex-crcise on February 13, 1986, LILCO personnel demonstrated their ability to implement all steps necessary to activate the prompt notification system short of actually sound-ing the sirens and airing an EBS message. The mechanical capabilities of the system will be tested; LILCO has agreed to conduct a full test of the prompt notification sys-tem that can be monitored by the NRC staff and FEMA. See Lette. from John D.
Leonard, Jr., to Harold R. Denton (June 20,1986, SNRC-1269, Enclosure 1 at 4). In ad-dition LILCO's siren system and tone alert radio system must pass muster under i
M/
The adequacy of the sirens and tone alerts was clearly a " Phase 1" issue. For ex-ample, Phase I Contention 2 stated:
LILCO intends that individuals situated within a 10-mile ra-dius of the plant will be alerted to a radiological emergency l
through 89 sirens and approximately 150 tone alert receivers (Plan at 6-11 through 6-12: Wyle Laboratories Report WR 82-10 at 4-3). LILCO's system, known as the " Prompt Notifi-cation System," is inadequate to effectively notify the popu-lation which may be affected by a radiological emergency and thus falls to meet the requirements of 10 C.F.R.
SS 50.47(b)(5) and (6),10 C.F.R. Part 50, App. E. Item D.2 2
and NUREG 0654, items II.E and F....
._ FEMA-REP-10, " Guide For the Evaluation of Alert and Notification Systems For Nucle-ar Power Plants" (1985).
2.
Notification of Persons in the Water Portion of the EPZ in Contentions EX 15.B 16.B,18.C(iv), and 20.D, Intervenors allege that the LILCO Plan is fundamentally flawed and that there can be no finding of reasonable as-surance because procedures for notification and issuance of protective action recom-mendations to persons in the water portion of the EPZ were not implemented during the exercise.
No Fundamental Flaw The fact that not every aspect of LILCO's Plan to notify persons in the water portion of the EPZ was implemented on the day of the exercise does not establish a fundamental flaw in the Plan itself. While the Coast Guard did not broadcast a message on marine band radio or sweep the water portion of the EPZ for waterborne traffic (the ability of the Coast Guard to perform these tasks is unchallenged), it did receive notifi-cation from and communicate with LERO on both the primary and backup communica-tions modes throughout the exercise. Rather than establishing a fundamental flaw in the Plan, the exercise established that LILCO has the " organizational ability" to man-age an evacuation of the water portion of the EPZ.
3.
Overload of Commercial Telephones I
Contention EX 22.J alleges that the LILCO Plan is fundamentally flawed because it relies on commercial telephones which "are subject to overload."
Phase ! Issue Intervenors have once again attempted to circumvent all doctrines of finality El of the adequacy and reliability of commercial telephones, and to resurrect the issue 15_/
Phase ! Contention 15 stated:
(footnote continued) 4
_-_..._.__,__._.___._____.-__m_
which was dismissed as a sanction in Phase I and repeatedly raised and dismissed in Phase II. See Memorandum and Order Confirming Ruling on Sanctions for Intervenors' Refusal to Comply with Order to Participate in Prehearing Examination, LBP-82-115, 16 NRC 1923 (Dec. 22,1983); Special Prehearing Conference Order Ruling on Conten-tions and Establishing Schedule for Discovery, Motions, Briefs, Conference of Counsel, and Hearing), Docket No. 50-322-0L-3, slip op. at 15-16 (Aug.19,1983); Tr. 4003, 4005-11, 4272-74, 5510-13 (Judge Laurenson). Intervenors should not be permitted to relitigate this issue in the context of Contention EX 22.J.
Not Based on Exercise Nothing in the February 13 exercise shed any light on the issue of overloaded phone lines. Accordingly, EX 22.J is not based on the exercise at all.
l (footnote continued)
The Plan relies completely for communication with off-site national, state, and local reeponse organizations upon telephone communications (e.g. 7.2.1 through 7.2.8) and on a low powered UHF Radio Based Station with a VHF Radio Based Station (7.2.10).
It fails to meet the criteria of 10 CFR 50.47(b)(2)(5)(6),10 CFR 50 Appendix E. IV Paras D(3) and E(9) and NUREG 0654, Appendix 3, Para C(1),in the following respects:
A.
Insofar as the Plan relles on telephone communications (7.2.1 through 7.2.8), it does not take into account the possi-bility of (1) a power outage, (2) sabotage and (3) overload.
This omission is especially significant because the Plan de-scribes the Hotline as the " primary means for notification of the State and County of emergency conditions at Shoreham."
(7.2.1; see also 5.4).
C.
The Plan relies on commercial telephone lines as "the pri-mary communication link" for hospitals, Coast Guard, and DOE (7.2.4). These lines will become overloaded in an emer-gency, thus preventing communication with these vital offsite organizations.
(Footnotes omitted.)
l l
(
. 4.
Notification of the Public by Route Alerting No Fundamental Flaw LILCO objects to the admission of Contentions EX 16.E, 21.A, and 34, all of which allege that LILCO will be unable to provide prompt backup notification to the public in the event of a siren failure. Backup notification for the siren system is not required by NUREG-0654, nor are there any commitments for time of completion in the Plan or Procedures; thus, there is no basis for a finding of inadequhey. See PID, 21 NRC at 759. Consequently, provisions for backup notification methods are not essential ele-ments of an emergency plan the lack of which could constitute a fundamental flaw; in-stead, they are a refinement in planning that provides added assurance.
D. Public Information (ENC Operations) (EX 20.C. 38, 39, 42.C, 42.G, 45.F)
Intervenors have offered a series of contentions (EX 20.C, 38, 39, 42.C, 42.G, and 45.F) alleging that the exercise revealed fundamental flaws in the flow of public infor-mation either because information was not released in a timely manner to the press at the ENC (Contention EX 38) or because LILCO was slow and/or inaccurate in re-sponding to individual questions and rumors (Contention EX 39).
No Objection to EX 38 (to some extent)
LILCO does not oppose the admission of Contention EX 38 to the extent that the 1El and (2) enumerated problems (1) involve communications of the offsite organization are alleged to collectively disclose a systemic problem in the dissemination of informa-tion.N 16/
LILCO opposes the admission of subparts A and O of Contention EX 38 because they involve the onsite organization. LILCO also opposes the ac':nission of subpart K because it seeks to reopen an old issue.
11 /
As noted above in the discussion of legal tests for a " fundamental flaw," an indi-vidual incident identified in Contention EX 38 would not, by itself, indicate a funda-(footnote continued) i
- - - -. ~. - - -. -..
_ No Fundamental Flaw However, LILCO-opposes the admission of Contention EX 39 (and Contentions f
EX 42.G and 45.F, which repeat EX 39) on the ground that the concerns of the conten-tion, even if accepted as true, do not constitute a fundmental flaw in the LILCO Plan.
Contention EX 39 alleges a number of failures in responding to rumors and questions from individual callers.
NUREG-0654, S II.G.4.b provides that an emergency plan should contain arrangements for dealing with rumors.
However, the rumor control function is not the primary component of the public information system. At the top, the EBS/ siren system serves to warn the general public of an emergency and provides pertinent protective action recommendations. Next, the press briefings at the ENC serve to provide the print, radio, and television media with detailed onsite and offsite information which in turn is relayed to the public to provide a second source of information and to correct misinformation generated by rumors.
The rumor control function detailed in the LILCO Plan serves as a third layer of infor-mation, providing a means for individual members of the public to have their specific questions answered during an emergency. Accordingly, the rumor control function is not a primary means of communication with the public and is not likely to affect health and safety of the general public.EI Therefore, Contention EX 39 does not present a fundamental flaw and must be denied admission.
(footnote continued) mental flaw worthy of admission. Further,in not objecting to the admission of Conten-tion EX 38, LILCO does not concede the admissibility of Contentions EX 42.G and 45.F.
Indeed, those contentions, which reference Contention EX 38, are redundant of that contention and should be denied.
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The truth of this assertion becomes obvious when one considers the minute fac-tual issues the Board would need to resolve to rule on Intervenors' proposed contention.
For example, item C(li) would require the Board to determine whether an individual was correctly informed that a lobster was edible given the facts known by the LILCO re-sponder.
_.__,.,..-_m_..-
m-_.
_ _ _ _ _ _ E. Hospitals and Special Facilities (EX 15.D,15.K.16.H,16.I, 16.J.16.L.18.C(ii), 20.E 20.H. 20.I 21.D. 22.E. 22.G. 47)
Hospitals and special facilities are the subject of Contentions EX 15.D and K, 16.H, I, J and L,18.C(ii), 20.E, H, and I, 21.D, 22.E and G, and 47. These contentions are in large part redundant of one another, but when the repetition is weeded out four issues are lef t.
The four issues are: (1) emergency planning for hospitals, (2) demon-stration of monitoring and decontamination, (3) lack of agreements, and (4) availability of ambulance and ambulettes.
1.
Emergency Planning for Hospitals Reopens Old Issues In Contentions EX 15.D,16.H 20.E, and 22.G Intervenors attempt to relitigate portions of the Plan. detailing how protective actions are made for hospitals and the ad-equacy of LILCO's sheltering preference for hospitals. This is especially apparent in Contention EX 15.D, which alleges a fundamental flaw in the Plan because procedures for evacuating the EPZ hospitals EI were not exercised.
The fact is that evacuation is only a backup protective action for hospitals, to be recommended only if the primary protective action - sheltering - is determined to re-sult in an excessive dose in a particular emergency. This feature of the Plan appropri-ately weighs the facts that the hospitals are located at the edge of the 10-mile EPZ, their masonry construction provides a high degree of radiation shielding, and evacua-tion might produce detrimental effects (including increased risk of trauma) to patients.
In most scenarios, the hospitals would not be evacuated, and planned ad hoc evacuation is appropriate.
M/
There are two hospitals in the EPZ, John T. Mather Hospital and St. Charles Hos-pital. Central Suffolk Hospital is a quarter-mile outside the 10-mile EPZ, but because of its close proximity LILCO includes it for planning purposes. The Suffolk Infirmary, though technically not a hospital, possesses many of the same characteristics of a hos-pital, and so LILCO treats it as such in the Plan.
I In any case, emergency planning for hospitals has already been litigated. FEMA found this aspect of the Plan acceptable, PID, 21 NRC 644 at 846, and the Licensing Board agreed. Id. at 844-46. Although the Appeal Board reversed and remanded on this issue, ALAB-832,23 NRC 135, the Appeal Board ordered the remand held in abeyance pending further Commission direction. Id. at 163. The NRC recently directed contin-ued deferral of the remanded issues until further order. CLI-86-11, slip op. at 2 (June 6, 1986).
In short, Intervenors should not be permitted to relitigate the generic issue of protective action recommendations for hospitals simply by asserting that the evacua-tion option was not actually implemented during the exercise. That issue is pending be-fore the Commission and is inappropriate for litigation in these exercise proceedings.
2.
Demonstration of Monitoring and Decontamination Challenges the Scenario / FEMA Review /No Fundamental Flaw / Lack of Basis Contentions EX 15.K and EX 47 assert that FEMA failed to test, and therefore that LERO failed to demonstrate, adequate procedures for monitoring and decontami-nating evacuees from special facilities who would be sent to special recep-tion / relocation centers. Leaving aside the fact that these contentions challenge the scenario, and that failure to test or review does not demonstrate a flaw in the Plan, the contentions lack basis because it is clear that the monitoring and decontamination function was tested. The monitoring and decontamination procedures are exactly the f
same regardless of whether the person being monitored is an eme'rgency worker, a gen-eral population evacuee, or a special f acility evacuee. The only difference is the loca-tion at which monitoring and decontamination take place.
According to OPIP 3.9.2, S 3.2, LERO monitoring personnel are dispatched to the special facility reception centers. Once there, they follow the same procedures that monitoring and decontamination personnel follow everywhere.
Monitoring and l
decontamination procedures were thoroughly exercised and reviewed at the Coliseum 1
and at the EWDF; therefore this function was adequately tested and Contentions EX 15.K and EX 47 fall to allege a basis which, even if demonstrated factually, would re-veal a fundamental flaw in the Plan.
3.
Lack of Agreements with Reception Centers for Special Facilities Population Reopens Old Issues In Contentions EX 16.J,20.H(1) and (ii), 20.I(ii), and 22.E, Intervenors attempt to relitigate the issue of the need for agreements with reception centers for special facill-ties. That issue was litigated extensively before this Board and was ruled on by this Board and Appeal Board. With respect to hospitals, the Licensing Board found that LILCO had done all that could reasonably be required in its attempt to find relocation centers for hospitals that might be evacuated. PID,21 NRC at 840.N With respect to nursing and adult homes, the Board found the Plan deficient be-cause reception centers for those facilities had not been identified and no supporting agreements existed, stating that "it will be necessary for LILCO to identify reception centers for special facilities... and to support this identification with letters of agree-ment prior to operation of Shoreham at full power." Id.
Since Contentions EX 16.J 20.H(1) and (11), 20.I(111), and 22.E attempt to reopen the lack of letters of agreement with reception centers for hospitals and other special facilities, they should not be admitted. Those issues have been fully litigated and decid-ed and are therefore not litigable in the context of the February 13 exercise.
l 20/
The Appeal Board reversed and remanded on the issue of relocation centers for hospitals, holding that the Board should have required LILCO to fulfill the same plan-ning obligations with regard to possible hospital evacuation that it imposed in connec-tion with nursing and adult homes. ALAB-832, 23 NRC 135,154-57 (1986). However, the remand of this issue is in abeyance pending further order by the Commission. See CLI-86-11, slip op. (June 6,1986).
1 l
1 I
4.
Availability of Ambulances and Ambulettes Reopens Old Issues Intervenors attempt to characterize as a serious defect the mattcc of whether FEMA verified the number of ambulances and ambulettes actually available to LERO on the day of the exercise (Contentions EX 16.L,18(C)(li), 20.H, 20.I(iii) and (iv). These contentions constitute yet another attempt to reopen an issue that has already been lit-igated. The number of available ambulances clearly was litigated before the Licensing Board. See PID,21 NRC at 828-32. The Board found that "LILCO has adequate ambu-lances and ambulettes under contract to conduct an evacuation of special facilities and I
the handicapped at home within the 10-mile EPZ in the event of an emergency at I
Shoreham." 21 NRC at 830.
Moreover, the fact that these ambulances and ambulettes are to be provided ac-i cording to the terms of signed contracts is significant. As the Board noted, there is "no basis for thinking the contracts were signed falsely or that the services could not be provided." 21 NRC at 831. Therefore, regardless of whether FEMA actually verified that the number of ambulances and ambulettes which LILCO has under contract were actually available, the fact remains that those vehicles are the subject of signed con-j tractual agreements. It is a red herring for Intervenors to assert that a fundamental i
1 kij Contention 20.I contains other irrelevant assertions as well.
For example, st;bsection (v) asserts that FEMA failed to review the actual availability of additional apbulances (with drivers and technicians) from volunteer fire companies and volunteer t
anbulance companies. The Board found that there are 61 additional ambulances be-lo'nging to towns and volunteer fire districts within 20 miles of Shoreham that could be called by special facilities if needed. LILCO does not rely on them, however, because it has an adequate number of private ambulances under contract for emergency purposes.
21 NRC at 829. Whether or not FEMA verified the number of such vehicles during the t
exercise is irrelevant to the results of the exercise. Moreover, the contention fails to b
allege a fundamental flaw in the Plan in that, even if FEMA did not verify the number f
of additional ambulances available, that fact is insignificant because LILCO has more than erough ambulances under contract to implement effectively its evacuation contin-4 gency.
n,.
flaw was demonstrated because their availability was not ritualistically verified. The issue has been litigated and decided and is inappropriate for inclusion in this proceed-ing.
F. Schools (EX 15.E,15.F,15.G,16.E 16.F,16.G,18.C(v),
20 E. 20.F. 20.G. 21.C. 22.B 22.C. 22.D. 26, 30, 42.B. 45.B)
Intervenors have submitted a series of contentions addressing emergency re-sponse for school children pursuant to the LILCO Plan. For the most part, these con-tentions challenge aspects of emergency planning for school children that have been previously litigated before this Board and are pending in Intervenors' appeal before the i
Commission. The one fact referred to in these contentions that comes out of the exer-cise - that a bus sent in response to a free play request from the Ridge Elementary School was delayed - is an isolated incident that does not provide a basis for Interve-nors' assertions of a fundamental flaw in the Plan. In addition, several of the conten-tions impermissibly challenge the exercise scenario. Thus, these contentions should be rejected.
Reopens Old Issues Intervenors challenge a variety of aspects of school planning and response in their contentions. The single thought underlying these contentions is Intervenors' de-sire to litigate their argument that schools in the EPZ are not planning for sheltering, early dismissal, or evacuation in a Shoreham emergency, and therefore that the LILCO Plan is inadequate. But there is no " fundamental flaw" here. The Board, the Appeal Board, and the Commission are all fully aware that some school districts oppose the LILCO Plan. Indeed, school officials testified on that very matter on behalf of Interve-nors. Thus, these new contentions are not based on the emergency planning exercise, but merely repeat assertions made beginning in 1983 before this Board and litigated over the past three years.
To illustrate, the issues about which the Intervenors complain in these new contentions, and that have been previously litigated before this Board, are listed below; the new contention on each issue (EX) and the corresponding prior contention on each issue (EP) are indicated in parentheses following each issue:
School officials are not capable of implementing shel-tering actions and lack resources to do so (EX 15.E, 16.E; EP 24.E, 25, 61.C).
School officials are not capable of implementing early dismissal in a Shoreham emergency and do not have the resources to do so (EX 15.F,16.F, 20.F(iv); EP 24.E, 25, 69).
School officials are not capable of implementing an evacuation response and lack the resources to do so (EX 16.G, 20.G(v); EP 24.E, 25, 70, 71.A(2)).
Schools are not cooperating and will not cooperate in an emergency to implement early dismissal, shel-tering, or evacuation of school children; no plans for a Shoreham emergency response exist (EX 15.G, 18.C(v), 20.G, 22.B; EP 24.E 61.C, 69, 70, 71.A(2)).
No school relocation centers have been identified (EX 20.G(1), 22.D; EP 24.N, 70).
School bus drivers would not be available during an emergency response to transport school children (EX 20.F(iii),20.G(iv),20.N(iii),22.C; EP 24.M. 25.C).
The number of buses necessary to accomplish early dismissal of school children (EX 20.F(i); EP 24.F(2 &
3), or evacuation (EX 20.G(li); EP 24.F(2 & 3), 70, 71.A(1),71.B(2)) was not considered in the exercise.
The availability during a Shoreham emergency of that number of buses (EX 20.F(ii),20.G(ill); EP 24.F(2 & 3),
70, 71.A.1, 71.B(2)) was not considered in the exer-cise.
The time necessary to accomplish an early dismissal (EX 20.F(v), EP 69.C) or evacuation (EX 20.G(vi); EP 71.B(1 & 2)) was not considered in the exercise.
The issues listed above were decided by this Board in its Partial Initial Decision.
Essentially, the Board found that, while it would be helpful for schools to pre plan for sheltering, early dismissal, and evacuation during an cmergency at Shoreham, it was not fatal to the Plan that schools are not now participating in planning, because State-required school emergency plans, designed for all sorts of emergencies, coupled with LILCO's planning efforts, provide adequate assurance that school children would be protected in a Shoreham emergency. Specifically, the Board found as follows:
LILCO need not obtain written agreements with schools that they would implement the LILCO Plan, and the written emergency plans for schools required by New York State provide reasonable assurance that adequate protective measures can and will be taken in an emergency for school children. Ld. at 858 (EP Contention 24.E).
School officials will do what is best for children on the basis of available information in an emergency.
While preplanning by schools might enhance dose sav-ings gained from sheltering, schools could implement sheltering without preplanning. Ld. at 862 (EP Con-tention 61.C).
The time necessary to complete early dismissal has been adequately considered in the LILCO Plan; early dismissal would be accomplished in a timely fashion.
Id. at 864-66 (EP Contention 69.C).
Existing school emergency plans coupled with infor-mation provided by LILCO make the plan for school evacuation workable. M. at 870 (EP Contention 70).
" Role conflict" would not prevent teachers and school bus drivers from responding to help school children in an emergency. M. at 676-78 (EP Contention 25).
1 School children would be adequately supervised in an evacuation. Id. at 677 (EP Contention 25); 871 (EP Contention 71.A.2).
There is no relocation center for school children des-Ignated in the Plan; LILCO has committed to finding one. Ld. at 860 (EP Contention 24.N).
The LILCO Plan provides reasonable assurance that an adequate number of bus drivers will be available for early dismissal of evacuation of school children.
Ld. at 859 (EP Contention 24.F.3).
There are enough buses relied on as outlined in the Plan to meet school commitments and evacuation of the general population. Id. at 825-27 (EP Contention 24.F(2)).
1 1 School buses needed for evacuation of school children would be available to school districts. Id. at 871 (EP Contention 71.A(1)).
LILCO has not demonstrated adequately the time necessary to evacuate children because no school re-location center has been identified. Id. at 872-74 (EP Contention 71.B(2)).
Many of these issues are now pending in Intervenors' appeal before the Commission.
The exercise contentions containing them do not raise new information arising out of the exercise of the LILCO Plan that might bear on these issues. Therefore, those con-tentions are not litigable in this proceeding.
Challenges the Scenario / FEMA Review To the extent that Intervenors challenge the scenario in Contentions 15.E,15.F, f
15.G.16.F,16.G,18.C(v), 20.E, 20.F, 20.G 21.C, 22.B 22.C, and 22.D because the pre-i viously litigated issues listed above were not examined in it, they also fail to assert l
valid contentions. First, these contentions should be rejected because they question the l
adequacy of the scenario and therefore fall outside the scope of this proceeding. As discussed in Section I.B above and Section II.G below, FEMA does not, and is not obli-gated to, test every aspect of a particular plan in each exercise that is held on that j
plan. And in the instance of schools, the fact of the matter is that no further light j
would have been shed on the adequacy of the LILCO Plan by including these items in the exercise scenario. As noted above, the Board has already ruled that LILCO's reli-ance upon pre-existing sheltering and early dismissal plans is appropriate, despite lack of school participation.
Second, to the extent that Intervenors allege that issues previously litigated and determined by the Licensing Board should have been tested, they are attempting to relitigate issues that they have already lost (for example, on the adequacy of the num-ber of buses for evacuating school children) or for which LILCO has committed to amend the Plan to fix (for example, identification of relocation centers for school l
1 l
l I
(hildren). Third, to the extent that Intervenors challenge in these contentions the sce-nario premises supported in the Plan and by this Board's decision on school issues, Inter-venors ask FEMA to adopt assumptions that this Board has already ruled are wrong. For all these reasons, these contentions should not be admitted.
No Fundamental Flaw As to the remaining contentions (EX 20.G, 21.C, 30, 42.B, and 45.B), discussing the Ridge Elementary School free play message, Intervenors have focused upon an iso-lated incident and have attempted to create several contentions out of it. During the exercise a free play message was given requesting that LERO send a bus to aid the evacuation of children from the Ridge Elementary School. Some time elapsed before the bus arrived at the Ridge Elementary School. This single incident, which is easily correctable, does not serve as a basis for the sweeping assertions in these contentions regarding LERO's inability to respond in an emergency, communicate within LERO, or evacuate school children. Nor does it identify a " fundamental flaw" in the LILCO Plan, for two reasons.
First, as noted above, under the LILCO Plan, school children are evacuated pri-marily using the school buses normally used to take them home each day and in emergencies pursuant to school early dismissal plans. As a back-up, LERO can provide additional buses to aid school evacuation if requested to do so by school officials. The Ridge free play message was designed to test this back-up capability of LERO, not the primary method of evacuation using the buses contracted for by schools.E Even if one assumes for the sake of argument that the response to the Ridge free play message was somehow inadequate, the identification of this alleged inadequacy in a back-up ca-pability cannot, by definition, denote a fundamental flaw in the Plan, because it sheds no light on whether the primary capability is adequate.
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Thus. Intervenors' assertions that the free play message was contrary to the pro-visions in the LILCO Plan are wrong.
f Second, Intervenors have not adequately pleaded that a fundamental flaw is identified by the LERO response to the Ridge free play message. To do so, they must allege that the bus delay in arriving at the school was so great that the children waiting for that bus would not have lef t the EPZ within the evacuation time estimate provided in the Plan. This they have not done. And the facts they do allege do not support a fundamental flaw allegation. Even assuming that the three-hour delay cited in their contentions is accurate, that would have lef t at least two hours for the bus to reach the edge of the EPZ within the time estimates in the Plan - ample time for the children to have been evacuated. Therefore, these contentions should be rejected.
G. Ingestion Pathway (EX 15.I.16.A. 37)
No Fun *mantal Flaw / Challenges the Scenario / FEMA Review Intervenors argue in Contentions EX 15.I,16.A, and 37 that the absence of mea-sures specifically intended for the ingestion pathway beyond 10 miles in the February 13 exercise renders the exercise concept invalid, demonstrates LILCO's nonfulfillment of certain exercise objectives, and demonstrates a fundamental flaw in LILCO's emer-gency plan. Intervenors assert that these conclusions follow from (1) the fact that New York State did not participate in ingestion pathway response and that Connecticut did not participate beyond answering telephone calls (Contentions EX 15.I.16.A); and (2) the fact the LERO did not activate ingestion pathway response measures beyond 10 miles from the plant and otherwise allegedly failed to take adequate ingestion pathway measures within the 10 mile EPZ (Contention EX 37). For the reasons outlined below, these contentions do not raise matters constituting a fundamental flaw in the LILCO Plan and thus do not present issues litigable in this proceeding.
As Intervenors' contentions note, arrangements for protection of persons and food chain are required in an ingestion pathway, defined as being a circle approxi-mately 50 miles in radius around the plant. 10 CFR S 50.47(c)(2). As the underlying
_ document supporting the regulations recognizes, the time available to implement mea-sures for the ingestion pathway EPZ is greater than that for the plume exposure (10 mile) pathway, both because of the nature of the actions (protection of food chain) and because of the greater distances involved. NUREG-0654 at 21-22 (Example 3).
At Shoreham the ingestion pathway includes portions of New York State and Connecticut. The measures proposed by LILCO to meet these requirements w 're chal-lenged by Intervenors in numerous contentions before the Licensing Board, where they were resolved favorably to LILCO. PID,21 NRC at 875. Thus there can be no question about the sufficiency of the basic measures proposed by LILCO for the ingestion path-way EPZ.
Intervenors' ingestion pathway contentions do not raise issues litigable in this proceeding for the following reasons:
1.
They Do Not Allege That Any of the Actions (or Asserted Inactions)
Respecting the Ingestion Pathway EPZ Reveal Fundamental Flaws with the Shoreham Emergency Plan.
Contention EX 16.I points to the regulatory requirement (10 CFR S 50.47(b)(10))
that "a range of protective actions for the ingestion exposure pathway appropriate to the locale have been developed." As the Licensing Board's Partial Initial Decision shows, those measures have been developed for Shoreham. Thus quarrels with the man-I ner of their demonstration in an exercise amount either to quarrels with the exercise l
scenario or to complaints about the scenario's implementation in the exercise.
1 As potential complaints about the scenario, the contentions fail on their face.
As was pointed out in Section I.B above, an alleged shortcoming in a scenario does not, as a matter of logic, necessarily fundamentally impeach an emergency plan. Further, the absence of any given item from a scenario is not itself necessarily a shortcoming in the scenario. It would be impossible to test each and every aspect of an offsite emer-1 gency plan in an exercise, and scenarios do not attempt such impossible tasks. Thus, in
i order to properly plead that a scenario lacks an element that must be demonstrated in order to avoid a presumption that a fundamental flaw exists in a plan, its proponent must at least plead the centrality of that element to the implementability of the plan, meeting the requirements of specificity and basis, and not merely argue, as has been done here, that its absence impeaches the plan. Otherwise, Intervenors will, by a pleading trick, be able to reverse their burden of going forward with allegations showing how an exercise demonstrates the existence of fundamental flaws in an emer-gency plan, into one where a licensee must demonstrate why an alleged gap between in-tervenors' interpretation of the regulations and the results of an exercise, with respect to any plan attribute, does not constitute a fundamental flaw, regardless of whether a FEMA-approved scenario even called for demonstration of that attribute.
As specifically applied to the participation of the State of Connecticut (Conten-tions EX 15.I,16.A), there is no allegation that Connecticut did not participate to the degree requested of it, or that it would not or could not have participated further if re-quested. (Parenthetically, it should be noted that Connecticut, with four operating nu-clear power plants within its borders and two in New York less than 50 miles from its boundary, is no stranger to ingestion pathway response; neither is New York State, with five operating plants, two of which it owns and operates, and another 12 within 50 miles, as listed in the New York State Radiological Emergency Response Plan.) Nor is the absence of participation by New York (Contention 15.1) a defect; it is a ground rule that New York can change at any time, and one that was presumed in the basic con-cept of the exercise.
With respect to the fact that the ingestion pathway measures taken by LILCO were restricted to dairy animals within the 10-mile EPZ (Contention 37), there is no al-legation that in the time frame postulated for the exercise - several hours involving the development of an accident and an evacuation of the 10-mile EPZ - the measures taken with respect to the ingestion pathway were inadequate. As the regulatory struc-ture underlying the inhalation dose regulation notes, ingestion-pathway measures con-cern the food chain and are longer-term than those for the inhalation pathway. There is no allegation, much less a specific one supported by basis, in the contentions dealing with the extent of LERO's response to the facts and circumstances of the exerc'.se sce-nario that LERO's ingestion pathway response was so inadequate as to indicate a funda-mental flaw in the Plan.
2.
Intervenors' Ingestion Pathway Contentions Presume an Invalid Construction of the Exercise Objectives.
Intervenors' contentions on the ingestion pathway wrongly presume that specific ingestion pathway areas were even supposed to be evaluated in the February 13 exer-cise. Thus they refer in Contention 15.I to Objectives EOC 9 and 12, and in Contention 37 to Objectives EOC 8 and 12, apparently to bolster the argument that the exercise was intended to demonstrate an ingestion dose capability. They do not, and it was not.
Those objectives, as reprinted in the FEMA Post-Exercise Assessment, April 17,1986 at 9ff., read as follows:
- 8.
Demonstrate that the appropriate officialis in charge and in control of an overall coordinated response including decisions on protective action recommendations.
89.
Demonstrate the ability to coordinate the emergency response with County and State officials. (Role of State and/or County officials will be simulated by the FEM A desig-nated personnel.)
12.
Demonstrate the ability to receive and interpret dos-age projection information, and to determine appropriate measures, based on PAGs and information received from the Brookhaven Area Office (BHO).
- Demonstration of this objective is affected by the legal au-thority issue.
Unfortunately for Intervenors' argument, none of these objectives can be used to
support the proposition that performance for the 50 mile EPZ was inadequate, since the cxercise never contemplated a full-scale 50-mile EPZ demonstration. None of these objectives makes any reference to an ingestion pathway EPZ.
No other objective makes any reference to an ingestion pathway EPZ. Several (e.g., Objectives EOC 15, 1
16, 18, 20) refer to the 10-mile EPZ, however, suggesting that as a context of perfor-mance. Further, the reference in Objective EOC 9 to simulation of State and County officials should have excepted the State of Connecticut if measures involving the Con-necticut portion of the ingestion pathway EPZ were to be included, since Connecticut has not refused to cooperate in emergency planning for Shoreham. But Connecticut is not even listed as a participant in the exercise (FEMA Post-Exercise Assessment at 111).
Thus the fact that Connecticut was not called upon to participate substantively in ingestion pathway activities (though the State did respond when telephoned) and the fact that LERO did not initiate any food-chain protective activities other than auto-matic ones (protection of milk within the 10 mile EPZ, undertaken whenever a release occurs) was merely a function of the design by FEMA of the exercise objectives, which did not include ingestion pathway response actions.
In short, Intervenors are complaining about the objectives and structure of the exercise promulgated by FEMA, not about anything during the exercise which ostensibly did or could have revealed a fundamental flaw in the Plan.
3.
Exclusion of Ingestion Pathway Issues from the Scope of the Exercise Objectives Was Proper The objectives and implementing scenario for the February 13 exercise bear the sponsorship of FEMA, which is an expert agency charged with taking the lead in offsite emergency planning for nuclear facilities, and whose technical findings have prima facie presumptions of validity in NRC proceedings. Exclusion of ingestion pathway ac-1 tivities is consistent with FEMA regulations, which do not require states occupying the ingestion pathway (50 mile) EPZ around a nuclear power plant, but not its inhalation i
~
_ pathway (10 mile) EPZ, to participate in every exercise for such plants. In fact, the regulations require such state participation only every five years in ingestion pathway activities. 44 CFR S 350.9(b)(4).
The NRC's regulations adopt this FEMA policy,10 CFR Part 50 Appendix E, IV.F.3(e). Indeed, when the NRC revised its emergency planning regulations in 1984 to diminish the required frequency of exercises, it did so out of the growing experience with emergency planning exercises, its finding that state governments typically per-formed adequately and were required to respond to a variety of emergencies on a con-tinuing basis anyway, and its conclusion that the hitherto required frequency of exer-cises was not necessary to maintain adequate readiness. 49 Fed. Reg. 27,733, 27,734-35 (July 6,1984).
FEMA practice reflects its regulatory structure. Not every FEMA graded offsite exercise has an ingestion pathway component.
Further, the states within the Shoreham ingestion pathway EPZ - New York and Connecticut - fully conform to the norm of qualification to perform offsite response. Neither New York State nor Con-necticut is a stranger to offsite emergency planning, including ingestion pathway re-sponse: Connecticut has four, and New York State five, operating nuclear plants al-ready; each has a FEMA-approved emergency plan.
H. GUARD v. NRC Issue (EX 15.J. 48)
Reopens Old Issues 1
In Contentions EX 15.J and 48, Intervenors seek to raise issues about the plan-ning requirements for offsite " contaminated injured individuals" identified in 10 CFR S 50.47(b)(12). This is nothing more than another attempt to litigate issues related to the D.C. Circuit's decision in GUARD v. NRC,753 F.2d 1144 (D.C.Cir.1985). The Board has previously rejected the admission of such issues, and should do so again.
I l,
_.....,-___________..____._._,.__.__-.m-
__ On February 25,1985, Intervenors moved to admit a new contention premised on the meaning of " contaminated injured individual" contained in S 50.47(b)(12). LILCO and the NRC Staff opposed this motion, arguing that resolution of the D.C. Circuit's de-cision in GUARD v. NRC was a generic licensing issue best left for the Commission.
On May 16,1985, the Commission issued a statement of policy which concluded in per-tinent part:
Licensing Boards (and, in uncontested situations, the staff) may find that applicants who have met the requirements of 5 50.47(b)(12) as interpreted by the Commission before the GUARD decision and who commit to full compliance with the Commission's response to the GUARD remand meet the requirements of S 50.47(c)(1) and, therefore, are entitled to a license conditional on full compliance with the Commis-sion's response to the GUARD remand.
50 Fed. Reg. 20,892, 20,893 col. 3 (May 21,1985). Relying on this statement of policy, this Board denied Intervenors' motion to admit a new contention. Memorandum and Order Denying Suffolk County's and New York State's Motion to Admit New Contention (Aug. 21,1985).
That ruling was upheld on appeal, see Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 152 (1986), and is now I
pending before the Commission as part of Intervenors' appeal of ALAB-832.
Contentions EX 15.J and 48 merely restate Intervenors' earlier contention that was denied admission. Indeed, the four subparts of Contention EX 48 are identical, or l
Virtually identical, to the subparts of Intervenors' earlier contention. As a result, the Board should summarily reject Contentions EX 15.J and 48 as attempts to relitigate a settled issue.
I. Relocation Centers (EX 15.L,16.N. 20.L. 20.M.
- 22. A, 22.K, 31, 32, 44.B 44.C 44.F 46, 47, 49)
Fourteen contentions address some aspect of relocation centers.E The LILCO I
M/
In addition EX 18.C(lii) alleges that not enough Red Cross personnel participated j
in the exercise. This is objected to in Section III below.
Plan calls for central " reception centers" where evacuees can be registered, monitored, and decontaminated if necessary, and for " congregate care centers" where they are l
sent if they need food, shelter, and clothing. Of the fourteen contentions about reloca-j i
tion centers, five are about congregate care centers (EX 15.L 16.N 20.M 22.K, and 32); three are about the Nassau Coliseum reception center (EX 20.L,22.A,'and 46); two are about the ability to monitor evacuees (EX 31 and 49); three are about the alleged ef-feet of the " shadow phenomenon" on the need for a relocation center (EX 44.B, C, and F); and one is about relocation centers for special f acilities like schools, nursing homes, and hospitals (EX 47).
The contentions, boiled down to their essence, are these:
Congregate Care Centers 22.K, 32 -
Congregate care centers are not listed in the plan; agreements for them are not in the plan.
15.L,16.N,- Congregate care centers.
20.M were not actually activated during the exercise, and only two of them were involved.
Reception Center 20.L -
The Nassau Coliseum relocation center was not dem-onstrated thoroughly.
22.A, 46 -
The Nassau Coliseum is no longer available because the Nassau County Board of Supervisors have with-drawn it.
31, 49.A -
Monitoring took too long (up to 4-5 minutes instead of the 90-second average stated in the Plan).
49.B -
The alternate monitoring plan was not demonstrated.
44.B. 44.C.- Because of the " shadow phenomenon,"
44.F, 49.C mo ple than planned will use the reception cen-24/
It is not entircly cicar whether EX 44.B and C refer to reception centers, con-gregate care centers, or both.
._ j i
47 -
Reception centers for schools, nursing homes, and hospitals were not 1.
Many of the Relocation Center Issues Are Not Based on the Exercise Many of these relocation center contentions simply have nothing to do with the l
February 13 exercise. (Indeed, only EX 31 and 49.A, which allege that it took too long
.l to monitor simulated evacuees, are based on the exercise results.) Contentions EX l
22.K, 32, 22.A, 46, 44.B, 44.C, 44.F, and 49.C in particular, are not " based on the emer-gency planning exercise."El EX 22.K and 32, for example, both allege that the congre-i gate care centers are not listed in the Plan and that there are no agreements for the use of them in the Plan. This has nothing to do with the exercise.
Likewise, Contentions EX 22.A and 46 claim that the Nassau Coliseum is no longer available, because the Nassau County Board of Supervisors has declared that it is not available without their prior consent.E These contentions are irrelevant to the exercise, which showed that the Coliseum is quite adequate as a reception center.
They raise a new issue not based on the exercise.
Similarly, Contentions EX 44.B. C, F and 49.C are about the " shadow phenome-non." They allege that there will be a shadow phenomenon, and that this will have all sorts of impacts on response in an emergency, including (among other things) straining the resources of reception centers. (These contentions are written to cover congregate care centers as well as relocation centers.) They attempt to connect this to the exer-cise by claiming that the exercise should have assumed such a shadow phenomenon and M/
As this Board noted in its August 1,1986 Memorandum and Order (Objections to Prehearing Conference Order), the scope of this proceeding is to consider evidence to show " based on the emergency planning exercise," that there is a fundamental flaw in the LILCO Plan (slip op. at 2-3). The issue is establishing flaws in the LILCO Plan "as disclosed by the emergency planning exercise" (slip op. at 5).
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LILCO has announced that it will replace the Coliseum with different reception centers.
)
i l
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_. - - _ _. used that assumption in the scenario. Again, this is a quarrel with the scenario; it is not based on the exercise results.
2.
Many of the Contentions Revisit Old Issues By the same token, many of the relocation center contentions are inadmissible because they try to reopen issues already litigated. For example, EX 22.K and 32 are simply an effort to reopen the congregate care center issues and are thus indistinguish-able from attempts to reopen the record on the issue that have been rejected by both the Licensing Board and the Appeal Board. Intervenors argued (in their Proposed Find-ings, for example) that LILCO was required to submit letters of agreement for congre-gate care centers. See Suffolk County and State of New York Proposed Findings of Fact and Conclusions of Law on Offsite Emergency Planning (Oct. 26,1984), at 429-30.
The Board disagreed, holding that "it may place its confidence in the Red Cross for the assessment of the adequacy of the shelters." CPID, 22 NRC 410, 422 (1985); see also ALAB-832, 23 NRC 135,161,162 (Appeal Board affirms exclusion of testimony that dealt with the "already fully litigated 1.3 sues concerned with designated shelters").
Likewise, Contentions EX 44.3, C, and F and 49.C are an attempt to reopen the
" shadow phenomenon" issue (EP Contention 23), and an attempt to raise an issue that is now before the Appeal Board, namely 'he number of people who might come to the re-ception center.EI See ALAB-832; Appeal Board Order of July 28,1986 (unpublished).
EI alleges that reception centers for schools, nursing homes, Contention EX 47 and hospitals were not demonstrated. Again, this is an attempt to reopen an issue al-ready addressed by the Board and Appeal Board. The Board concluded that the lack of E/
In addition to the shadow phenomenon issue and the relocation center issue, Contention EX 44 works in the "ad hoc expansion" of the emergency response that is part of its contention that the EPZ should be expanded (EP Contention 22). This is an-other issue the remand of which is being held in abeyance pursuant to CLI-86-11.
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It is also redundant of EX 16.J,20.H(1),20.H(ii),20.I(li), and 22.E.
.___._-_.__._.m---_
reception centers for nursing homes and schools was a remediable defect. See PID, 21 NRC at 840, 860; CPID, 22 NRC 410, 430 (items 6, 8) (1985). The Appeal Board re-quired the same treatment for hospitals. ALAB-832,23 NRC 135,156-57 (1986). LILCO has asked for review of this latter decision, and the remand has been kept in abeyance j
by the Commission until further order. CLI-86-11.
)
Contention EX 46 presents a brand new theory that should have been raised long ago. It alleges that the location of the reception center determines the nature of virtu-ally the entire rest of the emergency plan. This claim is preposterous. As Intervenors have complained so frequently, LILCO has been forced to change the relocation centers several times because Intervenors themselves have managed to make facilities unavailable. In none of these cases was the rest of the Plan affected in any fundamen-tal way.
This new theory is an issue outside the scope of this limited proceeding. As this Board said in its Memorandum and Order (Objections to Prehearing Conference Order) of August 1,1986:
Governments' claim that the elimination of the Coliseum as a reception center is of such magnitude that there is no point to the exercise and therefore this proceeding should be discontinued, is also not a proper one for inclusion in the proceeding.
Slip op at 3. While this ruling does "not preclude Intervenors from filing contentions involving the elimination of the Coliseum as a reception center, to be considered on the merits," Contention EX 46 is essentially the same issue that was declared outside the scope of this proceeding.
3.
There is No Fundamental Flaw Contentions EX 22.K and 32 are also inadmissible because they do not allege a
" fundamental flaw" in LILCO's Plan. They complain that an updated list of congregate care centers, and agreements to use them, are not in the Plan. But the Red Cross keeps l
... ~.. -,
a list of centers, and supporting agreements, in its own files, and the failure to copy that list into the Plan can hardly be called a fundamental flaw.
Underlying Contentions EX 22.K and 32 (and 15.L,16.N, and 20.M), of course, is Intervenors' desire to litigate their argument that some congregate care centers on the Red Cross's list are unwilling to be included in a Shoreham Emergency Plan. But there is no " fundamental flaw" here. The Board, the Appeal Board, and the Commission are all fully aware that some school districts oppose the emergency plan; indeed, school of-ficials testified on this very matter. Some districts have accordingly refused to commit in advance to let their facilities be used for a Shoreham emergency. Nevertheless, there is no reason to doubt that the Red Cross will be able to operate congregate care centers in a real emergency. The Licensing Board approved the Red Cross's standards for selecting congregate care centers and directed the NRC staff to be sure that the existing agreements for such centers are up-to-date. Beyond that, there is simply no reason to dwell on how the Red Cross goes about its business with respect to facilities that are, af ter all, well outside the EPZ and designed to deal with nonradiological prob-lems.
4.
Many of the Contentions Challenge the Scenario Many of the relocation center issues simply say that some feature of the Plan was not exercised. For example, Contentions EX 15.L,16.N, and 20.M complain that congregate care centers were not actually activnted in the exercise and that too few of them were involved. Contentions EX 20.L,47, and 49.B are also of this type; for exam-ple, Contention EX 20.L claims that the operation of the Coliseum was not demon-strated thoroughly enough. Like so many other of the contentions, these are complaints about the exercise scenario, not the Plan; they do not allege any flaws in the Plan itself.
m 5.
The Time Reauired for Monitoring Is Not a Fundamental Flaw Contentions EX 31 and 49.A both claim that the simulated monitoring during the exercise was slower than that postulated by the Plan, and therefore that in a real emer-gency the requisite number of evacuees could not be monitored in the 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> desig-nated by NUREG-0654. This contention is based on the ARCA on pages 81-82 of the FEMA report:
AREA REQUIRING CORRECTIVE ACTION
==
Description:==
On several occasions, personnel ra-diological monitoring took approximately four (4) to five (5) minutes per individual, which is considerably longer then the ninety (90) seconds specified in the LERO Procedures (NUREG-0654, II, J.12).
Recommendations: All monitoring personnel assigned to the Reception Center should be trained to monitor individuals within ninety (90) seconds as prescribed in the LERO Procedures.
FEMA Report S 2.9.
These contentions (really this contention, since it is only one) are the only relo-cation center contentions that are based on the exercise results. They are still, howev-cr, inadmissible. The reason is that the slower-than-expected performance of monitors is not a " fundamental flaw" in the Plan. At worst all it means is that more monitoring personnel need to be appointed or that they need to practice moving the monitoring probe faster. It has nothing to do with a " fundamental" flaw in the Plan.
J. Recovery /Re-entry (EX 15.M)
Contention EX 15.M alleges that the exclusion of recovery and re-entry activi-ties from the February 13 exercise has two effects: first, that it precludes a finding of reasonable assurance that protective action measures can and will be taken to protect the public as required by 5 50.47(a)(1) of the Commission's regulations; and second, that it demonstrates, ipso facto, a fundamental flaw in the Shoreham Plan. The contention states nothing further. It also fails to state an admissible issue.
__ LILCO has provided for recovery and re-entry activities in its emergency plan and procedures. In general concept, these arrangements recognize that recovery and re-entry operations occur at the very end of emergency response activities, following completion of population evacuation and any other short-term protective measures.
They involve the designation and composition of a Recovery and Re-entry Committee consisting of representatives both from LERO and from affected participating govern-ments, and checklists of general considerations to be examined by the Committee.
OPIP 3.10.1. The governmental actors designated for the Recovery and Re-entry Com-mittee include, as available, representatives from FEMA, EPA, DOE, and from affected l
State and County agencies. M.,15.1.
In recognition of the delayed and situation-specific nature of recovery and re-entry activities, explicit preparations were not at-tempted in the Shoreham emergency plan.
Intervenors challenged this structure, asserting that more specific procedures should be required to be in place in advance. Intervenors also contended that the re-entry dose threshold contemplated by the Plan should be lowered. Both of these is-sues were tried before the Licensing Board, which found.in favor of LILCO on both of them. LBP-85-12, 21 NRC 644, 878-882 (1985). The Board's appraisal of pertinent re-covery and re-entry considerations is illuminating for appropriate disposition of Con-i tention EX 15.M:
The Board notes at the outset that recovery and l
re-entry activities will be undertaken after an accident and i
an evacuation have occurred. It is fair to conclude that the public would be safe from radiation exposure at the time l
that consideration of recovery and re-entry was undertaken.
There is no basis in the testimony for concluding that the Recovery Action Committee would face an urgent question of public health and safety. When the Committee begins its i
delibetations, the immediate health-or life-threatening emergency would be over. The Committee would have time to deliberate and decide what it should recommend.
21 NRC at 880.
Thus the Board, in its decision upholding LILCO's recovery and re-entry plan, specifically took note of the fact that the activities required of LERO and the participating governments would follow short-term protective action measures, and of the fact that they would not be constrained by the types of time pressures charac-terizing shorter-term measures.
Against this background, Contention EX 15.M should be dismissed at the thresh-old for the following reasons:
No Fundamental Flaw The contention proceeds from one undeniable and nondispositive fact: that re-covery and re-entry activities were not specifically included within the scope of the Shoreham exercise. From that fact, the contention depends on two serial inferences:
first, that the absence of this element from the exercise prevents the NRC from draw-ing a 5 50.47(a)(1) finding of implementability; and second, that the inferred inability to draw a S 50.47(a)(1) finding reveals a fundamental flaw in the LILCO Plan.
As this objection shows, the absence of recovery and re-entry from the exercise is not, on its face, a fundamental defect in the Shoreham Plan and is not alleged on the face of the pleading to be one. Coupling it with two untenable inferences does not cure this fatal pleading problem.
The contention does not allege that adequate recovery or re-entry provisions have not been made by LILCO; indeed, such an allegation would be unconvincing in light of the Licensing Board's decision. Nor does it allege why or how the absence of a recovery and re-entry demonstration from the exercise, without more, impugns the Board's earlier finding that acceptable planning measures had been taken. As has been noted elsewhere in these objections, the scope of an exercise is within the initial con-trol and discretion of FEMA, and no exercise can possibly test the complete range of emergency response activities; hence the absence of any one area or any group of areas is not necessarily a flaw in the exercise or the plan it is testing.
. The outright absence of recovery and re-entry procedures from a plan might in-dicate defects in its implementability or constitute a fundamental flaw, though the predicate for such an allegation does not exist in this case. In any event, it does not follow that the absence of any given demonstration element from an exercise inher-cntly demonstrates the unimplementability of the plan, or reveals a fundamental flaw
'n it. Thus the contention's sole material allegation simply does not even allege, as a pleading matter, that which is required for admissibility, given the record in this case.
It is not improper for a Board to rely on undisputable facts to determine that a pleading threshold has not been met. By contrast with the beginning of a case, where all parties are proceeding on a tabula rasa and a Board might feel constrained not to ex-amine facts as bases for decisions until the summary disposition stage, this case has a long record. Further, judicial economy makes it proper for a Board not to ignore rele-vant information of record at any time. Here, that fund of information includes the Board's previous approval of a recovery and re-entry plan; the fact that there are not time pressures associated with this activity; the fact that the Committee to be set up under the Plan includes various governmental actors who are not strangers to nuclear regulation or safety; the fact that FEMA determines the initial scope of exercises; and the fact that no specifics, other than the absence of the demonstration at issue, have been pleaded by Intervenors.
Challenges the Scenario / FEMA Review Challenges to the scenario for the February 13 exercise are not definitionally improper in all cases. However, since FEMA is vested with authority and responsibility for determining the proper scope of emergency response, challenges to the scope of a scenario approved by it should include at least an explanation why the particular aspect being complained of does in fact reveal a fundamental flaw in emergency planning. On its face, the contention does not contain any such explanation, and is thus deficient as a pleading matter.
g 1
Lack of Basis / Lack of Specificity An essential allegation for a contention such as this is that the act or omission complained of reveals a fundamental flaw in the LILCO Plan. However, the naked alle-gation itself is not sufficient: while detailed trial-type evidence need not be pleaded, sufficient basis and specificity must be included to put the reader on adequate notice to understand the argument being made. In this case, as is noted above, there is simply no attempt to connect the naked allegation about the absence of recovery and re-entry ac-tivities with its significance to emergency planning.
Finally, the contention relles solely on the fact that recovery and re-entry activ-ities were not demonstrated in the exercise. No other facts are pleaded or relied on. If FEMA is legally required to include within the scope of every planning exercise every planning element of NUREG-0654 and every provision of 10 CFR S 50.47(b), then Inter-venors are correct in their contention. If FEMA is not so burdened, and enjoys the lati-tude accorded an expert agency within the scope of its expertise, then the contention not only fails to raise any triable factual issues, it fails as a matter of law.
K. Training (EX 27, 28, 42, 45, 50)
No Fundamental Flaw In five repetitive contentions (Contentions EX 27, 28, 42, 45, and 50) Intervenors allege, by citing a series of primarily minor and/or irrelevant events, that the February 13 exercise revealed fundamental flaws in the LILCO training program. Although the list of errors alleged in the contentions is unarguably lengthy, in reviewing the admissi-bility of the contentions the Board should judge the individual incidents in light of their overall significance to the training program as a whole and should keep in mind FEMA's assessment of the exercise as generally showing that the LILCO Plan can be imple-mented. When viewed in the appropriate context, the contentions are inadmissible as f alling to state a fundamental flaw.
These contentions as a group possess the following characteristics:
1.-
The items they cite in support of their specific subparts' allegations are, for the most part, minor.
2.
Those relatively few items cited in support of their specific subparts which are of any real potential significance in their own right are consistently cited Gisewhere, in contentions dealing with their actual merits. For instance, LERO's reac-tion to road impediments (cited to in Contentions EX 42.A, 45.A, and 50.A-C) is also treated on the merits in Contentions EX 40.B and E (to whose admission LILCO has not objected).
3.
Substantive materials (especially adduced in support of Contentions EX 42, 45 and 50) are not necessarily even discussed in the contentions' text, but may be simply incorporated by reference.
These include Exercise Objectives, FEMA deficiencies (or, more frequently, the less important ARCAs and areas of suggested im-provement listed in the FEMA Report), and cross-references to other contentions.
These references are not merely citations to authority for material discussed in text, but substantive incorporations by reference. In this fashion the contentions sweep within their folds large amounts of material which cannot be adequately policed, and therefore cannot be intelligently accepted, at the initial pleading stage.
4.
The contentions all require at least one level of factual inference as an organizing principle.
For example, Contention EX 27 requires the inference that school bus drivers were inadequately trained in radiation dosimetry. Contention EX 28 requires a similar inference for ambulance and ambulette drivers. Contention EX 42 requires the inference that LERO personnel received consistently flawed training, and hence consistently reacted improperly to surprise events. Contention EX 45 requires the inference that LERO personnel are not sufficiently trained to obtain, process and communicate information properly. In each case the vast majority of matters adduced Gither directly or by reference in support of these inferred propositions are trivial and not litigable under a " fundamental flaw" test. The upshot of this approach is an at-tempt to bootstrap matters which themselves are of little intrinsic significance into something more major by spurious organization.
5.
Contention EX 50, while sharing the same general characteristics as the other contentions in this group, is in a more extreme category of its own. While the other contentions incorporate by reference individual findings from the FEMA Report, EX 50 incorporates whole other contentions (it refers to, apparently for basis support, a total of fif teen other contentions - EX 27, 28, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 45, and 49). While other contentions require one level of inference to sustain tneir basic propositions EX 50 requires two, since the inferred propositions from the incorpo-rated contentions are merely the building blocks for its allegations. Its dragnet ap-proach smacks of a conspiracy charge. If it is admitted, its web of connections with other contentions would presumably permit litigation of a whole host of issues which, if addressed on their own merits, would not necessarily have passed the threshold pleading tests for this proceeding. In short, Contention EX 50 is a carefully laid artifice for evading the " fundamental flaw" requirement established by the Commission for this proceeding. If it is admitted, it will matter little what the Board has ruled as to the ad-missibility of other contentions, for they will have been sneaked back in under cover of Contention EX 50.
Each of the contentions in this group attempts to transmute triviality into sub-stance by spurious organization.E This is one reason why LILCO has discussed each of 2_9/
Intervenors' training contentions (particularly EX 50) are reminiscent of the Shoreham QA/QC proceeding,in which Intervenors were unable to support their charge of a " pattern of breakdowns"in the QA program. Intervenors argued there that "every deficiency, however minor, reflects an attitude or lack of discipline that undermines confidence that the QA program has been successful." ALAB-788, 20 NRC 1102,1141 (footnote continued)
._. the matters raised in the subparts of each of these contentions on its own merits in Section III of these Objections: if the items individually do not merit consideration on their own as evidence of fundamental flaws in the Shoreham Plan revealed by the exer-cise, they should not be granted such status by dubious virtue of being combined with other similarly minor matters. LILCO believes that only those matters raised in these contentions which warrant litigation on their own merits - 1&, in a manner not depen-dent on their relationship with other items in the contention - should be admitted; and only then, if the results of that litigation suggest an opportunity to draw further judg-ments, should other items now raised in the contentions be considered for admission. In no event should allegations merely incorporated by reference, whether from other con-tentions or the FEMA Report or elsewhere, be admitted as a portion of any contention.
Each of the potentially substantialitems raised by these five contentions - particular-ly, the treatment of impediments, mobilization issues, and public information issues -
has been raised on its own merits in other contentions which treat them head-on.
LILCO has not objected to the admission of each of these issues for straightforward merits treatment. These issues - and any other issues which the Board admits, if it chooses to - should be admitted in the context of the contentions which treat them substantively, not in the context of these derivative contentions. In the meantime, Contentions EX 27,28, 42, 45, and 50 should be rejected in entirety.
(footnote continued)
(1984). In that analogous situation, the Licensing Board and Appeal Board rejected In-tervenors' argument and noted that quality assurance review (similar to the purpose of the FEMA exercise) involves two separate inquiries: whether deficiencies have been uncovered and corrected, and whether a generic problem exists that could affect the health and safety of the public. Id.
i
.-. L. Buses (EX 16.K.18.C(i). 20.J. 21.B. 22.H)
Like the series of contentions on ambulance availability (see Section II.E), Inter-venors have sought to claim that the exercise scenario and FEMA's review of the exer-cise were defective because they did not verify the actual availability of the 333 buses used to evacuate transportation-dependent residents of the EPZ. Specifically,Interve-nors allege (1) that twelve bus companies or yards did not participate in the exercise (Contention EX 16.K), (2) that the nine companies or yards that did participate did so in a liniited manner (Contention EX 18.C(i)), (3) that FEMA failed to verify the availability of 333 buses designated for evacuation of the entire transportation-dependent popula-tion of the EPZ (Contentions EX 20.J and 22.H), and (4) that when FEMA observed bus operations it did so in a limited manner that precluded generalizations about LERO's overall bus operations (Contention EX 21.B).
i Reopens Old Issues In essence, the first three of these allegations (Contentions EX 16.K 18.C(i),
20.J, 22.H) seek only to relitigate the adequacy of LILCO's letters of agreement with 1
bus companies. These agreements were the subject of EP Contention 24.F.2, which was resolved in LILCO's favor. PID,21 NRC at 825-27.N Further review and verification of these letters of agreement would serve no useful purpose.
30/
Indeed, Intervenors' claim in Contention EX 22.H that bus availability is hindered by prior obligations to schools was expressly rejected by the Board in its decision on EP Contention 24.F.2. There the Board stated:
The Board is not disturbed by the fact that many of the j
buses under contract have prior commitments to schools be-cause (1) these buses would become available af ter making their school rounds, (2) large numbers of buses under con-tract exist outside the EPZ that could be released to LILCO's use by school administrators, and (3) the bus companies themselves have additional buses that could be requested on an ad hoc basis.
PID,21 NRC at 827. Thus, contrary to Intervenors' claims, it was not the scenario that was premised on a f aulty assumption but rather Intervenors' contention.
I
-.., -... ~., -. -,,. _ - - _.
_ _ - - - - - - - - - _ _ _ -, - -.. _. - - -. - - - ~ - - - - - - - _ _. _. _ _ _, _ - - - - - - - - - _, -
Challenges the Scenario / FEMA Review / Lack of Basis In addition to being an impermissible attack on FEMA's review process (see Sec-tion I.C), Contention EX 21.B's criticism of FEMA's review is premised on only a selec-tive portion of the pertinent facts. What Intervenors observed but fail to state is that all bus routes were run during the exercise. Thus,333 bus drivers drove from their re-spective transfer points to bus companies, and then to their assigned transfer points f
where they were assigned to run all of the routes specified in the LILCO Plan. The only difference between these drivers and the eight drivers observed by FEMA is that the bulk of drivers did not pick up buses, but rather drove their own cars. Finally, it is im-portant to note that the eight bus drivers observed by FEMA were chosen completely at random. See FEMA Report at 58. Thus, Contention EX 21.B is without factual basis and must be denied admission.
M. Evacuation (EX 21.F. 25, 29, 41, 42.A. 45.A)
Intervenors raise three basic issues about those portions of the exercise designed to test LERO's ability to provide for the steady flow of evacuation traffic during an emergency. First, Intervenors question LERO's ability to respond to two hypothetical accidents (Contentions EX 21.F. 25, 29, 41, 42.A, and 45.A). Second, Intervenors also challenge the number of impediments simulated during the exercise as insufficient to reflect the number that would occur during an actual emergency (Contentions EX 21.F and 22.I). Third Intervenors allege that FEMA's review was inadequate because it did i
not observe sufficient numbers of traffic guides or traffic guides actually directing traffic (Contentions EX 20.K and 21.E). Of these three issues, only the first warrants admission.
No Objection to a Single Consolidated Contention Intervenors have fragmented their challenge to LERO's response to two traffic impediments !nto a number of largely duplicative factual pieces (Contentions EX 21.F.
(
-5 9-25,29,41.B, and 45.A) as well as a series of contentions that seek to explore the rea-sons for LERO's less-than-perfect response (Contentions EX 41 (preface), 42.A, and 45.A). Such piecemeal litigation serves no useful purpose. LILCO does not object to the admission of a single contention that discusses the adequacy of LERO's response to the impediments.
One contention would allow all factual events which composed LERO's response to be discussed in one place. Those events could then be examined to determine whether or not a fundamental flaw exists in the LILCO Plan, and if one does, what the exercise teaches about how that flaw can be remedied.
To this end, LILCO suggests that Contention EX 41.B is the most appropriate place to litigate these issues because it includes the most complete list or factual cvents involving the impediments and because it seeks to litigate the fundamental ques-tion of the adequacy of LERO's response to the two roadway impediments. Contentions EX 24.F,25, and 29 raise f actual issues contained in Contention EX 41.B. and hence can simply be dismissed as duplicative of that contention. Contention EX 45.A raises essen-tially the same f actual issues as presented in Contention EX 41.B. The differences are that (1) subsections EX 45.A(1) and (11) contain factual assertions that go beyond those identified in EX 41.B(ll) and (1), respectively, and that (2) subsection 45.B(lii) alleges facts not contained in Contention EX 41.B. To the extent these three subsections al-lege facts not contained in Contention EX 41.B. LILCO does not object to the addition of those facts to Contention EX 41.B. Contention EX 45.A can then be dismissed as duplicative. Finally, Intervenors' efforts in Contentions EX 41 (preface),42.A and 45.A to explore the reasons for the problems in LERO's response to the two impediments can all be litigated under the present language of Contention EX 41.B. Hence, those con-tentions should be dismissed as redundant.
Reopens Old Issues Intervenors' claims that the exercise was flawed because it did not hypothesize a sufficiently large number of accidents (Contentions EX 21.F and 22.1) are merely efforts to relitigate issues tried and lost in EP Contention 65.D. In EP Contention 65.D, Inter-l venors presented a variety of evidence, including Suffolk County accident statistics, in an attempt to demonstrate that large numbers of accidents would occur during an evac-i uation. The Board rejected those claims, finding that "LILCO has established that the number of incidents are few, that the evacuation time is insensitive to a modest fre-quency of incidents and that means of mitigation are reasonably available." PID, 21 NRC at 798. Thus, Contentions EX 21.F and 22.I are attempts to reopen earlier litiga-tion and should not be admitted.b Lack of Basis /No Fundamental Flaw / Redundant /Rcopens Old Issues Finally, Intervenors contend that FEMA's review was inadequate because it did not include a large enough sample of traffic guides or actual observation of traffic di-j rection (Contentions EX 20.K and 21.E). These contentions are inadmissible because i
they lack factual basis, are duplicative of Contention EX 40.B and do not raise funda-mental flaws with the LILCO Plan. Intervenors' challenge to the number of traffic guides observed rests on the bald statement that reviewing 32 of 165 traffic guides was "too small" a sample. Intervenors offer no statistical or other reason why 20% of all traffic guides is too small a sample, particularly given the fact that all traffic posts were manned during the exercise and that the 20% sample was randomly chosen by FEMA.
d 3_1/
In Contention EX 22.! Intervenors attempt to offer new accident statistics for the period of February 6-20,1986, presumably to show that many accidents would occur during an evacuation. This proffered evidence should be rejected as an improper at-tempt to reopen the record on EP Contention 65.D. However, even if accepted, the proffered evidence proves nothing. Like earlier Suffolk County evidence, the new acci-dent rates merely unte the number of accidents that occurred over the specified two-week period. The number of vehicle miles traveled that produced that number of acci-dents is not provided. Thus, as the Board concluded in the PID, s_ee 21 NRC at 796, no reliable accident rate can be calculated from the proffered evidence.
. Intervenors' justifications for a more complete review either raise issues covered in other contentions or issues that, even if factually correct, do not reveal flaws in the j
LILCO Plan. The claim that Riverhead traffic guides were late in arriving at their i'
posts (EX 21.E) is the subject of Contention EX 40.B and is best litigated there. The fact that some traffic guides did not know the location of the Reception Center is not an important factor since the primary purpose of traffic guides is to expedite the flow Cf evacuation traffic, not to answer drivers' questions. Indeed, EBS messages and other public information would clearly indicate the location of the Reception Center. Final-ly, the fact that radio communications may have been " difficult" from the Port Jefferson staging area does not mean that communication was impossible or that the
" difficulties" resulted in improper implementation of the LILCO Plan. Thus, these com-munication difficulties do not raise fundamental flaws in the Plan.
Intervenors' allegations that FEMA should have reviewed actual traffic direction by LERO traffic guides (EX 20.K and 21.E) ignores the earlier extensive training litiga-tion. There, the Board concluded:
the preponderance of the evidence establishes that the job of traffic guide is not so complex that it cannot be learned l
within the time allocated in Dr. Babb's training program.
The Board finds no substantial evidence in support of the Suffolk County claim that the jobs cannot be performed properly without extensive experience.
PID, 2L NRC at 749-50. Intervenors fail to explain how in light of this conclusion FEMA's failure to observe traffic guides actually directing traffic could have led to the i
discovery of a fundamental flaw in the LILCO Plan. Intervenors' proposed contention is nothing more than a thinly veiled attempt to relitigate training issues.
A N. Mobilization (EX 40.A. 40.B. 40.D.
- 41. A. 41.D. 42.F. 43 (pref ace). 43.A)
In parts of Contentions EX 40-43, Intervenors have raised issues about the time-liness of the mobilization of LERO workers. Intervenors' a!!egations focus on three
- l groups of LERO field workers - traffic guides, bus drivers, and road crews. With re-4 j
gard to these workers, Intervenors seek to litigate four basic issues:
- 1) whether the exercise demonstrated a fundamental flaw in the LILCO Plan because traffic guides were not at their posts "during the entire evacuation process" (Contentions EX 40 (preface) and 42.F);
- 2) whether the exercise results demonstrated that LERO cannot mobilize its field workers in a timely manner (Con-tentions EX 40.A, 40.B. 41.A, 42.F, and 43 (preface));
- 3) whether voluntary evacuation by EPZ residents prior to an evacuation order would further delay the mobilization of LERO workers (Contentions EX 40.D, 41.D, and 43); and 1
1
- 4) whether mobilization delays led to incorrect EBS mes-sages that would affect public confidence (Contentions EX 42.F and 43.A).
Of these issues, only the second is admissible, and only to the extent mobilization times exceeded those specified in this Board's Partial Initial Decision on emergency planning issues.
1 Reopens Old Issues Intervenors contend that the exercise demonstrated a fundamental flaw in the l
LILCO Plan because traffic guides were not at their posts throughout the entire evacu-ation (Contentions EX 40 (preface) and 42.F). These contentions are based on the
]
premise that the Plan and the evacuation time estimates contained in the Plan assume that traffic guides will be at their posts at the issuance of an evacuation recommenda-i
]
tion. As prior litigation and this Board's Partial Initial Decision make clear, this prem-ise is incorrect. The Partial Initial Decision states that "(m]odeling work on traffic assumes that traffic guides will be in place when congestion begins to occur approximately 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> af ter the order to evacuate." 21 NRC at 720 (emphasis added).
i j
Thus, the proposed contentions seek to reopen a settled issue. As a result, they must be denied admission.
l 4
Mek of Basis In another series of contentions (EX 40.A, 40.B, 41.A, 42.F, and 43 (pref ace)), In-tervenors suggest that the exercise results indicate that LERO did not and cannot mobi-lize its field workers in a timely manner. As factual bases for this assertion, Interve-nota present a piecemeal collection of manning levels for periods from one to two hours following the declaration of a Site Area Emergency (Contentions EX 40.A,41.A, and 43 (preface)) and from the time a General Emergency was declared (Contentions EX 40.A, 40.B. 41.A. and 42.F). As draf ted, only Contention EX 40.B is admissible for litigation.
The other proposed contentions are inadmissible since they fall to allege delays in mobi-lization that exceed previously accepted standards and, as a result, present only a con-fusing array of irrelevant manning levels.
The standards for judging the timeliness of mobilization are clearly identified in the PID. There, the Board concluded "that LILCO could substantially complete its mo-bilization in about 3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />" following the declaration of a Site Area Emergency. PID,21 NRC at 723. With regard to traffic guides the relevant mobilization standard is wheth-er they are at their posts by approximately one hour af ter an evacuation recommenda-tion, since that is the time when congestion begins to develop and guides are of aid in l
l cxpediting evacuation traffic. See id at 720. Similarly, as Intervenors note in the l
pref ace to Contention EX 43, the standard for judging bus driver mobilization is wheth-cr buses are dispatched from transfer points according to the appropriate schedule, but
)
in no case are they to be dispatched on their routes until at least one hour af ter the cvacuation recommendation. OP!P 3.6.4, S 5.3.4. Since the standards for judging traf-fic guide and bus driver mobilization depend on the issuance of an evacuation recom-mendation, it must be noted that during the exercise an evacuation recommendation was not made simultaneously with the declaration of a General Emergency (09:39). In-l stead, the evacuation recommendation was first broadcast in an EBS message at 10:24.
By these standards, only Contention EX 40.B alleges facts, that if true, indicate mobilization times longer than those previously accepted by the Board. Contentions EX 40.A and 41.A list manning levels at various times soon af ter the declaration of a Site Area Emergency but not at the relevant time - three hours af ter the Site Area Emer-gency declaration. These two contentions also present manning levels at the time a General Emergency was declared - a useless fact in judging mobilization. Contention EX 42.F is devoid of factual basis. There, Intervenors merely assert that traffic guides were not at their posts until "well af ter" the evacuation recommendation; that bus driv-ers were not dispatched until "over two hours" af ter a Site Area Emergency and "over one hour" af ter a General Emergency; and that road crews, route spotters and route alert drivers "were also delayed" in carrying out their duties. Finally, in the preface to Contention EX 43, Intervenors present a meaningless array of bus driver mobilization times, but curiously, the contention never explicitly states that mobilization was un-timely. Instead, the contention shif ts focus and seeks to relttigate the issue of when buses should begin their routes - an issue litigated in EP Contenticn 67. Accordingly, Contentions EX 40.A,41.A 42.F, and 43 (preface) should be denied admission.
Reopens Old issues intervenors also seek to litigate whether mobilization would be even further de-layed as a result of voluntary evacuation from the EPZ (Contentions EX 40.D,41.D, and 43). This issue was already litigated and disposed of by this Board in EP Contention 27.
In its Partial Initial Decision, the Board noted "[t]he County further speculates that traffic congestion would likely increase as the severity of the accident increased be-cause of volunteer evacuation, even if no order to evacuate had been given." PID,21 NRC at 721. The Board rejected that argument, concluding that:
Our analysis of the consequences of the inability to mobilize fully under some limited circumstances leads us to reject Suffolk Ccunty's concerns about the delaying effects of traf-fic at specific times of day and other contingent possibilities for delay.
l M. at 725. Under the doctrine of res _iudicata, Contentions EX 40.D and 41.D and the penultimate paragraph of Contention 43 must be denied admission.
Reopens Old Issues /Not Based on Exercise Finally, Intervenors allege that since traffic guides were not at their posts at the declaration of a General Emergency (Contention EX 42.F) and buses did not begin run-ning their routes at the issuance of the evacuation recommendation (Contention EX 43.A), EBS messages were issued which were incorrect and should have been revised.
l These contentions seek to raise an issue that could have been raised in earlier emergen-cy planning litigation but was not. Accordingly, they are untimely and foreclosed by the doctrine of res judicata.
As noted above, LILCO has always stated, and it was perfectly clear in earlier litigation, that traffic guides were to be at their posts approximately one hour af ter the evacuation recommendation and that bus routes would not be run sooner than one hour af ter the evacuation recommendation. Furthermore, the content of EBS messdges was the subject of extensive discussion in the litigation of the " shadow phenomenon" con-tentions. Thus, the operative facts were in place at the time of the earlier emergency i
planning litigation. Had Intervenors been concerned about the correctness of EBS mes-sages in the one-hour period following the evacuation recommendation, they could have raised those concerns. Their failure to do so precludes them from doing so now.
1 O. Dose Assessment (EX 23, 35. 36. 45.D) in Contentions EX 23,35,36, and 45.D, Intervenors challenge certain aspects of f
i the process followed at the EOC during the exercise for determining LERO protective action recommendations (PARS). NRC regulations and the onsite and offsite plans re-quire onsite personnel to communicate each PAR to the offsite organization, and offsite personnel to consider it in determining the recommendation to be communicated to the public. Pursuant to the onsite plan for Shoreham, onsite personnel recommend a i
L
, protective action based on conditions at the plant, dose projections, field measurements when available, and various other factors, of ten using a computer model onsite to aid the process. Pursuant to the offsite Plan, LERO's Radiation Health Coordinator at the EOC independently considers dose projections based upon conditions reported from the plant (using a computer model virtually identical to the one used onsite) and actual field measurements as they become available, and determines, based upon a variety of fac-tors, a PAR. Early PARS are based on plant conditions; release and field data are taken into account as they become available. Contentions EX 23, 35, 36, and 45.D focus on three PARS communicated from the onsite organization to LERO during the exercise:
(1) sheltering for zones A-M, Q, and R at 9:47 a.m., (2) evacuation for those zones at 9:58 a.m., and (3) evacuation for zones N, O, P and S at 11:25 a.m. Recommendations (2) and (3) were adopted within LERO at 10:10 and 11:46 a.m., respectively.W in Contention EX 23 Intervenors assert that a LERO error of reporting extrapo-lated dose data as actual measurements identifies a " fatal flaw" in'the LILCO Plan; in EX 35, that the fact that no calculations were done by LERO between receipt of the onsite PARS and LERO's decision about what PARS to communicate to the public (a pe-riod of 12 minutes for the first recommendation and 21 minutes for the second) estab-lishes that LERO cannot "make independent assessments, evaluations, judgments, or de-terminations as to protective action recommendations": in EX 36, that a change in PARS based on wind shif ts "may" have been "more appropriate" than the action taken
(
by LERO during the exercise; and in EX 45.D. that minor discrepancies on the dose as-sessment status board in the EOC and an arithmetical error by a field monitor misplacing a decimal point, which was corrected within five minutes of its having been made, establish gross communication and training problems within LERO.
32/
these recommendations were communicated to the public in EBS messages ap-proved at 10:24 and 11:59, respectively.
_ No Fundamental Flaw These contentions should be denied, because they do not identify a " fundamental flaw" in the LILCO Plan. What Intervenors have done is string together a few isolated, minor, and easily corrected discrepancies in an attempt to challenge LERO dose assess-ment capabilities. What is more telling, however, is that nowhere have Intervenors Glaimed that the LERO PARS established during the exercise were wrong iven the sce-nario data. In fact, FEMA found that the onsite and offsite organizations " demon-strated good judgment in making correct PAG determinations," and that the LERO PARS "were consistent with the EPA PAGs for child thyroid dose which was the appro-priate dose pathway for this exercise scenario." FEMA Report at 33.
Similarly, while Contentions EX 23 and 45.D complain of the manner in which l
Information was displayed on the status board in the EOC, Intervenors do not identify I
or even allege that the display resulted in serious errors by LERO in determining PARS and implementing them. Nor do they allege in Contention EX 35 that LERO did not do independent calculations in determining PARS; they simply assert that during the few minutes between receipt of onsite recommendations and LERO determinations, it does not appear that independent calculations were made.EI These facts, even if true, do not establish a fundamental flaw in the LILCO Plan. Consequently, Contentions EX 23, 35,36, and 45.0 should not be admitted.
P. Shadow Phenomenon (EX 22.F. 40.C. 40.D. 41.C. 43.D. 44. 49.C)
In Contentions EX 22.F. 40.C. 40.D. 41.C 43.B. 44, and 49.C. Intervenors allege that (1) the exercise scenario erroneously excluded the " shadow phenomenon" from sce-i nario assumptions and (2) LILCO exercise response establishes a fundamental flaw M/
Of course, even a cursory understanding of emergency planning and the exercise scenario indicates that early assessments are, of necessity, based upon plant conditions j
only and therefore that no " calculations" need be undertaken.
I l
resulting from LERO's " demonstrated inability to provide accurate, clear, consistent and non-conflicting information to the public." None of these contentions should be ad-mitted, because (1) to the extent they challenge the assumptions in the scenario, they are impermissible, (2) LILCO's response in the exercise does not provide the basis for Intervenors' assertion that the so-called " shadow phenomenon" is a fundamental flaw in the LILCO Plan, and (3) the issue raised in these contentions - that the shadow phe-nomenon would derall emergency response - has been litigated previously in this pro-ceeding. Finally, EX 22.F. 40.C. 40 D. 41.C 43.B. and 49.C merely repeat EX 44 and should therefore be struck as redundant of EX 44.
ReoDens Old Issues First, the contentions are not admissible because the issue raised in them - that shadow phenomenon may be a difficulty in responding to a real emergency - has al-ready been litigated before this Board in the prior emergency planning proceeding.
Contentions EX 22.F,40.D, 41.C 43.B. 40.C. 44 and 49.C merely echo the shadow phe-nomenon EP Contention 23 in which Interventes alleged that LILCO has f ailed to take into account adequately the evacu-ation shadow phenomenon.... A substantial portion of the population, upon learning of the existence of an emergency at Shoreham, will decide to evacuate.... Voluntary evacu-ation will result in a much larger number of people at-tempting to evacuate... than is assumed by LILCO and its evacuation time estimates... voluntary evacuees will in-crease substantially the demand for relocation services....
PID, 21 NRC at 972-74. Thus, Intervenors' current allegations regarding the shadow phenomenon, including (1) their challenge to assumptions in the Plan that allegedly are crroneous due to the shadow phenomenon, (2) their assertion that in a real emergency people would evacuate before LILCO would be able to accommodate that activity, and (3) their insistence that various f acilitle: and responses would be inadequate as a result of the additional people from the shadow were all contained in the shadow phenomenon contention previously litigated.
LILCO argued in response to EP Contention 23 that overreaction would not be great because it could be limited or controlled by disseminating information giving peo-ple accurate perceptions about the emergency, and that, in any event, while some j
l cverreaction might occur, it is not a threat to public health and safety. See PID,21 NRC at 656. This Board ruled as follows:
(R]easonable people need and will seek information on which to base their actions, particularly in the urgent condi-tions of emergency. If the information is inadequate or con-flicting, they may act inappropriately. If it is complete and consistent, they will accept it and use it as intended.
... The Board has found that the public will respond in predominant numbers in accordance with the emergency information it receives. Before acting, people will seek in-formation beyond the first notice that an accident has occurred. They will pause to consider what they have heard.
The Board knows from previous findings that their individual decisions as to the best course to follow will not likely form a perfect consensus. Thus, some will evacuate even though not advised to, whereas most will not. We see nothing in I
this that is in conflict with NRC regulations or guidance on emergency preparedness.
Since the Board finds that the scenario postulated in the contention will not occur to a sig-nificant degree we need not say more about the postulated consequences.
... LILCO has adequately demonstrated that a ratio-nal public will behave predominantly in accordance with public information that is disseminated at the time an emer-gency happens.... LILCO has given adequate consideration to the evacuation shadow phenomenon in its emergency planning process.
!d. at 662,668, and 670.
Not Based on Exercise / Lack of Basis Second, from the Board's findings quoted above it is evident that the only arguably admissible contention on shadow phenomenon that Intervenors might raise is that LERO's performance in the exercise establishes that LERO will not disseminate in-formation to the public as contemplated in its Plan. But Intervenors have not alleged any information resulting from the exercise that would support their allegation that the shadow phenomenon is a fundamental flaw in the LILCO Plan. While they baldly assert that the exercise establishes "LILCO's demonstrated inability to provide accurate, clear, consistent and non-conflicting information during even a simulated emergency" (Contention EX 44, p.134), thereby suggesting that the shadow phenomenon would be a proble'n in an actual emergency, they do not give a single example of the information LERO allegedly provided during the exercise that " demonstrates" LILCO's " inability."
In fact, the EBS messages to the public created during the exercise were based upon the messages in the LILCO Plan, which were litigated at length and approved by the Board.
Because Intervenors have suggested no basis for the premise of these contentions, they are not admissible.
Challenges the Scenario Third, in these contentions Intervenors complain that had the exercise scenario taken shadow phenomenon into account, and "the activities of the LILCO players in re-sponse had actually been taken, evacuation activities by members of the public, both inside and outside of the EPZ, would actually have started much earlier" (Contention EX 22.F p. 70). According to Intervenors "such evacuation would have had a substan-tial impact on the ability of LILCO players to actually perform the various activities undertaken or simulated by them during the exercise"(Contention EX 22.F p. 71.) This notion is echoed in the other contentions on the shadow phenomenon, for example in EX 44, where Intervenors assert that "the LILCO plan, as exercised on February 13, l
' fails to take into account or deal with at all, the substantial impact of such voluntary evacuation upon LILCO's ability to implement the Plan"(Contention EX 44, pp.132-33).
In these contentions Intervenors attempt to challenge the scenario assumptions, which tre based on the NRC regulations, NUREG-0654, FEMA guidelines, and the LILCO Plan, by suggesting that (1) the scenario should have instructed players to assume that people were evacuating without being instructed to do so and that (2) the scenario is defective because, if the exercise had required actual evacuation of the EPZ by people living there, the shadow phenomenon would have been revealed as a problem, and therefore a flaw in the Plan would have been identified.
These arguments challenge the basis of FEMA scenarios generally. The Board has already ruled that the shadow phenomenon is not a problem with the LILCO Plan.
And exercises do not include evacuation by the population as though there were an ac-tual emergency. It is all very well for Intervenors to postulate that, had the scenario been dinerent, LERO would not have responded as effectively as it did to the scenario as it was written, but such speculation does not make an admissible contention. Inter-venors' complaint about the constraints of the scenario go to the very nature of exer-cises and are therefore not a proper matter to be litigated in this proceeding. They in-sist that FEMA must insert in the scenario shadow assumptions that the Board already ruled are wrong in response to EP Contention 23.
Redundant For all these reasons, Contentions EX 22.F, 40.C, 40.D, 41.C, 43.B. 44, and 49.C should not be admitted. Moreover, all but EX 44 should be struck as redundant.
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I a
III.
SUMMARY
OF OBJECTIONS (BOTH THOSE IN SECTION II AND ALL OTHERS) CONTENTION-BY-CONTENTION EX 1-7 1.
Preamble 2.
Reopens old issues 3.
Lack of. basis 4.
Lack of specificity 5.
Not based on exercise Contentions EX 1-7, the " legal authority" issues, are merely an attempt to relitigate issues of law pending in other forums. In addition, the exercise shed no light on these issues, so the contentions lack basis and do not disclose a fundamental flaw based upon the exercise. They raise purely legalissues that are pending elsewhere.
EX 8-14 1.
Preamble Contentions 8-14, the " realism" contentions, are not admissible for the reasons discussed in Section II.B.
EX 8 1.
Challenges the scenario / FEMA review 2.
Lack of specificity EX 9 1.
Challenges the scenario / FEMA review 2.
Lack of specificity 3.
Redundant of EX 8 4
EX 10 1.
Not based on exercise l
2.
No fundamental flaw 3.
Lack of specificity EX 11 1.
Challenges the scenario / FEMA review 2.
Lack of specificity 3.
Redundant of EX 8 EX 12 1.
Chaltanges the scenario / FEMA review 2.
Lack of specificity 3.
Redundant of EX 8 EX 13 1.
Challenges the scenario / FEMA review 2.
Lack of specificity 3.
Redundant of EX 8 EX 14 1.
Not based on exercise 2.
No fundamental flaw 3.
Lack of specificity 4.
Redundant of EX 8,10 EX 15 1.
Lack of basis 2.
No fundamental flaw 3.
Challenges the scenaric/ FEMA review In Contention EX 15 Intervenors present a list of items that they claim both in-dividually and collectively impugn the February 13 exercise. As alscussed in Sections I.B and II.G above, such challenges to the exercise scenario should be rejected absent factual allegations that the Shoreham exercise scenario was substantially different from other scenarios. Contention EX 15 is void of any such allegations and. hence, is inadmissible.
- EX 15.A 1.
Challenges the scenario / FEMA review 1
2.
Phase I 3.
No fundamental flaw 4.
Lack of basis 5.
Redundant of EX 16.C,16.D,20.A,20.B,24 LILCO objects to subpart 15.A of Contention EX 15 on a number of grounds.
First, the contention improperly challenges the adequacy of the exercise scenario.
Second, as addressed above (see Section II.C), the contention is an attempt to revisit the adequacy of the prompt notification system. That issue is r_s fudicata. Memoran-e dum and Order Confirming Ruling on Sanctions for Intervenors' Refusal to Comply with Order to Participate in Prehearing Examination, LBP-82-115,16 NRC 1923 (1982).
Third, the fact that the siren system was not sounded and.LILCO's EBS system did not air an emergency message in the exercise does not indicate that there is a fun-damental flaw meriting litigation. During the exercise held on February 13, 1986, LERO personnel implemented the steps necessary to activate the prompt notification system short of actually sounding the sirens and having the EBS system transmit the ap-propriate message. LILCO has agreed to demonstrate the mechanical capabilities of the prompt notification system prior to commercial operation. (See Letter from John Leonard to Harold Denton (June 20,1986, SNRC-1269, Enclosure 1 at 4).) Intervenors' claim (EX 15.A, Second para.) that such a test would not demonstrate the ability of LILCO's offsite response organization to integrate the activation of the prompt notifi-cation system and that it would not demonstrate that the LILCO Plan could be imple-mented is without basis.
Finally, Contention EX 15.A is redundant. Contentions EX 16.C.16.D. 20.A, 20.B and 24 raise the same issue.
EX 15.B 1.
Challenges the scenario / FEMA review 2.
No fundamental flaw 3.
Redundant of EX 15.H.16.B.18.C(iv),20.D LILCO objects to Contention EX 15.B on the following grounds. First, the con-tention is an improper challenge to the adequacy of the exercise scenario. Second, as discussed above (see Section II.C), the exercise did not demonstrate fundamental flaws in LILCO's Plan for notification of and issuance of protective action recommendations to the members of the public in the water portion of the EPZ. The U.S. Coast Guard participated in the exercise (FEMA Report at 9) and communicated with LERO from the Eaton's Neck Coast Guard Station by marine radio and by telephone (FEMA Report at 29). The fact that the Coast Guard did not actually. broadcast a message on the ma-
~
rine band radio or sweep the water portion of the EPZ to notify waterborne traffic does not indicate a fundamental flawt the Board does not need to institute litigation to take notice of the fact that the Coast Guard during the normal course of its duties has ample, Cxperience in use of the marine band radio and its boats to notify water-borne traffic in the area covered by the Shoreham EP2. Finally, Contention EX 15.B is redundant of Contentions EX 15.H,16.B,18.C(lv), and 20.D.
EX 15.C 1.
Lack of specificity 2.
Reopens old issues This contention is objectionable as vague and lacking in specificity. Intervonors argue that the exercise was deficient because it did not include a demonstration of
"(p]rocedures for public education and dissemination of information to the public." In-tervenors attempt to give meaning to this broad statement by citing OPIP 3.8.1 and parts of the Plan and Appendix A. OPIP 3.8.1 is an all-inclusive procedure which de-scribes the procedures for disseminating emergency planning information throughout a
! plant's operational life and provide procedures for transmitting information to the public during an actual emergency. These latter EOC and ENC activities were the sub-ject of extensive testing and observation during the exercise and are thus inconsistent with the premise of Contention EX 15.C.
If Intervenors intended this contention to apply narrowly to the public informa-tion brochure and other information that is transmitted to the public during a plant's life, then the contention is inadmissible as an attempt to relltigate earlier contentions.
The adequacy and readability of the public information brochure was the subject of EP Contention 16 (see PID, 21 NRC at 768-770); posters and telephone book inserts were the subject of EP Contention 18 (sgg id. at 765-766). As a result, the only conceivable question that remains is whether these materials have been actually distributed. LILCO has pledged to do so before exceeding 5% power.
4 EX 15.D 1.
Challenges the scenario / FEMA review 2.
No fundamental flaw 3.
Reopens old issues 4.
Lack of specificity Contention EX 15.D alleges that the scope of the exercise was too narrow be-cause it did not require the evacuation of the three hospitals and the Suffolk Infirmary.
It does not, however, allege any associated harm. It therefore constitutes an improper challenge to the adequacy of the exercise scenario and is inappropriate for litigation in these proceedings. In addition, it falls to allege a fundamental flaw in the Plan because i
the fact that hospital evacuation procedures were not exercised demonstrates nothing about the adequacy of the LILCO Plan insofar as it concerns protective actions for hos-pitals. A failure to test does not constitute or even indicate a fundamental flaw in the Plan. Further, the subject of emergency planning for hospitals was fully litigated be-l fore the Licensing Iloard. See Section !!.E.1 above. Finally, Contention EX 15.D lacks l
specificity because it does not particularize what procedures allegedly were not exer-cised. Neither does 15.D specify what is meant by "the capability of implementing" a hospital evacuation. It is unclear exactly what functions were allegedly excluded from the exercise and which functions Intervenors think should have been exercised.
EX 15.E 1.
Reopens old issues 2.
Challenges the scenario / FEMA review For the reasons discussed at length in Section II.F above, this contention is not admissible because (1) the adequacy of procedures for sheltering school children, and the ability of schools to implement sheltering, was previously litigated and (2) sugges-tions that this issue should have been included in the exercise impermissibly challenge i
the scenario.
EX 15.F t.
Reopens old issues 2.
Challenges the scenario / FEMA review For the reasons discussed at length in Section II.F above, this contention is not admissible because (1) the adequacy of procedures for early dismissal, and the schools' ability to implement it, was previously litigated and (2) suggestions that this issue should have been included in the scenario impermissibly challenge the scenario.
EX 15.G 1.
Reopens old issues 2.
Challenges the scenario / FEMA review For the reasons discussed at length in Section II.F above, this contention is not admissible because (1) the adequacy of procedures for evacuation based in part on early dismissal was previously litigated and (2) suggestions that this issue should have been in-cluded in the exercise impermissibly challenge the scenario.
m_
-r.
78-EX 15.H 1.
Challenges the scenario / FEMA review 2.
Redundant of EX 15.B,16.B,18.C(iv),20.D 3.
Lack of specificity 4.
Lack of basis 5.
No fundamental flaw Contention 15.H is not admissible, for reasons clearly noted in Section II.C above. First, it improperly challenges the adequacy of the FEMA-approved scenario.
Second, Contention EX 15.H is redundant of Contentions EX 15.B 16.B.18.C(iv) and 20.D. Third, as no facts have been alleged that indicate any problem with LERO's abili-ty to implement protective action recommendations "for the public on the waters of the plume exposure EPZ, or for transients on beaches or in parks or similar areas in the EPZ", the Board should dismiss this contention as lacking sufficient specificity and basis. Fourth, the contention does not raise a fundamental flaw. Although the nebulous language of the contention makes it difficult to ascertain the precise issue raised by In-tervenors, if one assumes that their allegation of fun,damental flaw is based on "no dem-onstration of any ability to effect an evacuation of the water portion of the EPZ" the facts of the exercise show the contrary. The Coast Guard, which is responsible for no-tification of waterborne traffic, was contacted by LERO on both the primary and back-up modes of communication and was kept informed of the progress of the hypo-thetical accid 2nt (FEMA Report at 9,29). With respect to notification "for transients Cn beaches or in parks or similar areas in the EPZ," those persons are notified via the prompt notification system, which includes the siren system and the Emergency Broad-cast System.
EX 15.I 1.
No fundamental flaw 2.
Challenges the scenario / FEMA review 3.
Lack of basis The burden of Contention EX 15.I is that the exclusion of New York State and Connecticut from ingestion pathway activities in the February 13 exercise defini-tionally prevents the NRC from being able to reach a finding of reasonable assurance and thus inherently reveals a fundamental flaw in the Shoreham Plan. Neither the logic r.or the conclusion of the assertion follow. As is noted in more detail in Section II.G above, the scenario for the Shoreham exercise was approved by FEMA, an expert agen-cy with jurisdiction over emergency planning matters. The degree of involvement of New York State and Connecticut in the exercise was consistent with FEMA's review of the exercise scenario. Thus the contention merely amounts to a complaint, without any stated basis, about the scenario approved by FEMA. The omission of ingestion pathway activities from the exercise and of involvement of state governments is consistent with other one-day FEMA emergency planning exercises in FEMA Region II and elsewhere, and with NRC.and FEMA regulations. Finally, to the extent that state-level prepared-ness for ingestion pathway activities is, needed, both New York State (with five op-crating nuclear power plants) and Connecticut (with fcur) already have multiple opportunities to develop their facility with these relatively long-term, essentially ge-j neric, non-site-specific efforts; and NRC and FEMA regulations require participation by affected states in ingestion pathway activities for any given site only once every five years. The degree of preparedness implicit in this requirement is easily satisfied by these states' other activities already. Thus there is no basis laid for an assertion of a i
fundamental flaw in the Shoreham Plan from the omission of New York State and Con-necticut from ingestion pathway activities.
4 EX 15.J 1.
Reopens old issues 2.
No fundamental flaw As noted above in Section ll.H. this contention is inadmissible because It seeks to l
)
retry issues already resolved in prior proceedings. Even if this contention were not J
precluded by the doctrine of res judicata, it must still fail because Intervenors have failed to demonstrate that the immediate failure to provide treatment to offsite con-taminated individuals constitutes a " fundamental flaw" in the LILCO Plan (see Section I.A above).
EX 15.K 1.
No fundamental flaw 2.
Challenges the scenario / FEMA review 3.
Lack of basis Contention EX 15.K falls to allege a fundamental flaw in the Plan because a failure to exercise the function of monitoring and decontamination of special facility cvacuees, even if established, demonstrates nothing about the adequacy of LILCO's Plan in regard to that function. A failure to test does not constitute or even indicate a fun-damental flaw in the Plan. Moreover, this contentica lacks the requisite basis because it alleges no facts or source'of facts from which one could determine that radiological monitoring and decontamination of evacuees was not sufficiently demonstrated. In fact, that function was amply demonstrated. See Section II.E.2 above.
Finally, Contention 15.K alleges that the scope of the exercise was too narrow to obtain meaningful results because it did not require the demonstration of monitoring and decontamination at reception centers for special facilities. It therefore constitutes an improper challenge to the adequacy of the FEMA-approved scenario.
EX 15.L 1.
Not based on exercise 2.
Challenges the scenario / FEM A review 3.
No fundamental flaw 4.
Redundant of EX 16.N 20.M 5.
Reopens old issues Contention EX 15.L alleges that the exercise did not demonstrate congregate care centers. As with most of the relocation center issues, discussed in detail in Sec-tion II.I above, EX 15.L is not based on anything that happened at the exercise but rath-er on the argument that the exercise failed to test everything. There is no "fundamen-tal flaw" in the Plan revealed by what is simply Intervenors' disagreement with how the cxercise was conducted.
i EX 15.M 1.
No fundamental flaw 2.
Lack of basis 3.
Lack of specificity 4.
Challenges the scenario / FEMA review The burden of Contention EX 15.M is that the exclusion of recovery and re-entry activities from the scope of the February 13 exercise is an omission sufficient to pro-vent the NRC from reaching a finding of reasonable assurance and thus reveals a funda-mental flaw in the Shoreham Plan. The contention neither details the manner in which this exclusion so, fatally impeaches the exercise nor explains the basis for the assertion.
Neither the logic nor the conclusion of the contention follow. As is explained more fully in Saction II.J above, recovery and re-entry activities were deliberately excluded from the scope of this one-day exercise by FEMA, an expert agency with jurisdiction in emergency preparedness. The contention amounts to a quarrel, without stated basis, with the exercise scenario. Further, the omission does not give rise to any tenable as-sertion of a fundamental flaw in the Shoreham Plan. As has already been established in this litigation, LILCO's proposed recovery and re-entry measures are adequate,
. LBP-85-12, 21 NRC 644, 878-82; and one portion of the Licensing Board's decision on that issue involves the finding that recovery and re-entry activities are not even con-templated until evacuation and all other applicable short-term protective action mea-sures have been completed and the affected population is safe. Id. at 880. Thus the time pressures affecting short-term protective measures do not apply to recovery and l
i re-entry activities. Further, the governmental actors involved, particularly State and I
federal agencies, are no strangers to nuclear safety or regulation. In short, there is no basis'elther asserted or possible for a conclusion that the omission of recovery and re--entry matters from the scope of the exercise constitutes a fundamental flaw in the Plan in an area already approved by the Licensing Board.
EX 16 1.
Challenges the scenario / FEMA review 2.
No fundamental flaw 3.
Lack of basis Contention EX 16 presents a list of entities or organizations whose alleged non-perticipation in the exercise is said to " individually and collectively" condemn the exer-cise. Aside from the fact that Contention EX 16 largely restates Contention EX 15, Contention EX 16 is just another bare challenge to the exercise scenario for which In-tervenors have failed to allege the necessary basis as discussed in Section I.B. Conten-tion'EX 16 should be rejected at the outset.
EX 16.A 1.
No fundamental flaw 2.
Challenges the scenario / FEMA review 3.
Lack of basis The burden of Contention EX 16.A is that the absence of the State of Con-necticut from ingestion pathway activities (other than responding to a telephone call) in the February 13 exercise contributed to such a limited scope of exercise that the NRC cannot reach a finding of reasonable assurance and thus a fundamental flaw exists in the Shoreham Plan. Neither the logic nor the conclusion of the assertion follow. As l
is noted in more de. tail in Section II.G above, the scenario for the Shoreham exercise was approved by FEMA, an expert agency with jurisdiction over emergency planning matters. The degree of involvement of Connecticut in the exercise was consistent with FEMA's review of the exercise scenario. Thus the contention merely amounts to a complaint, without any stated basis, about the scenario approved by FEMA. The omis-sion of Connecticut from any substantive involvement in ingestion pathway activities during the exercise is consistent with other one-day FEMA emergency planning exer-cises in FEMA Region II and elsewhere, and with NRC and FEMA regulations. Finally, to the extent that state-level preparedness for ingestion pathway activities is needed, Connecticut (with four operating nuclear power plants; already has had multiple opportunities to develop its facility with these relatively long-term, essentially generic, non-site-specific efforts; and NRC and FEMA regulations require participation by af-fected states in ingestion pathway activities for any given site only once every five years. The degree of preparedness implicit in this requirement is easily satisfied by Connecticut's involvement with other plants already. Thus there is no basis laid for an assertion of a fundamental flaw in the Shoreham PJan from the nonparticipation of Connecticut in ingestion pathway activities.
EX 16.B 1.
No fundamental flaw 3.
Redundant of EX 15.B 18.C(iv),20.D 3.
Lack of specificity 4.
Lack of basis 5.
Challenges the scenario / FEMA review First, as addressed in detail in Section II.C, no fundamental flaw was established by the exclusion from the exercise of actual notification and issuance of protective ac-tion recommendations to persons in the water portion of the EPZ. Second, LILCO ob-jects to any interpretation of Contention EX 16.B that alleges a fundamental flaw based on the " willingness" of the Coast Guard to implement the Plan. LILCO has a letter of
(
agreement (Plan at App. B-8) with the Coast Guard that confirms the Coast Guard's willingness and intent to provide notification and implement protective action recom-mendations in the water portion of the EPZ. This issue was decided as part of the l
_ __ Phase II litigation. PID, 21 NRC at 761. The issue of the Coast Guard's willingness to implement the LILCO Plan is res judicata and law of the case; Intervenors are barred from reclamoring the issue in the exercise litigation. Third, LILCO objects to Conten-i tiGn EX 16.B as redundant of Contentions EX 15.B,18.C(iv), and 20.D. Fourth, Conten-tion EX 16.B is inadequately specific for LILCO to ascertain the issue being raised by the contention; no facts are alleged that show the existence of a problem. Signifi-cantly, the portions of the Plan Intervenors claim are fundamentally flawed are tasks routinely performed by the Coast Guard in its normal course of duties. Finally, the l
contention alleges a flaw in the exercise scenario rather than in the Plan.
EX 16.C 1.
Redundant of 15.A,16.D, 20.A, 20.B, 24 2.
PhaseI 3.
No fundamental flaw 4.
Lack of specificity 5.
Lack of basis G.
Challenges the scenario / FEMA review LILCO objects on several grounds. First, Contention EX 16.C is redundant of Contentions EX 15.A,16.D,20.A,20.B, and 24, all of which allege that the LILCO Plan is fundamentally flawed because the existence, operability, and adequacy of the prompt notification system was not tested during the exercise. Second, as explained in detail in Section II.C above, Contention EX 16.C raises an issue that is not cognizable in the exercise litigation because it was raised, addressed, and dismissed in Phase I of emer-gency planning. It is r_es.iudicata and law of the case. Third, the contention does not raise a fundamental flaw in LILCO's Plan. Fourth, LILCO objects to Contention EX 16.C on the ground that it lacks sufficient specificity and basis to show the existence of a fundamental flaw. Finally, the contention alleges a flaw in the exercise scenario rather than in the Plan.
l
._. ___ EX 16.D 1.
Redundant of EX 15.A,16.C,20.A,20.B,24 2.
No fundamental flaw 3.
PhaseI 4.
Reopens old issues 5.
Lack of specificity 6.
Lack of basis 7.
Challenges the scenario / FEMA review First, Contention EX 16.D is redundant of Contentions EX 15.A,16.C,20.A,20.B, and 24, all of which allege the existence, operability, and adequacy of the prompt noti-fication system was not tested during the exercise and, therefore, that the Plan is fun-l damentally flawed.
Second, LILCO objects, as detailed in Section II.C above, on the grounds that the contention does not raise a fundamental flaw and that the issue was addressed and dis-missed in Phase I as a sanction for Intervenors' intentional failure to comply with the~
Thus, the issue is r_es iudicata and law of the case; it cannot be orders of the Board.
es relitigated here. Third, Contention EX 16.D lacks sufficient specificity and basis to ap-prise LILCO of the issues raised by the contention. Finally, Contention EX 16.D, like the rest of EX 16, challenges the exercise scenario.
EX 16.E 1.
No fundamental flaw 2.
Reopens old issues 3.
Lack of specificity 4.
Lack of basis 5.
Challenges the scenario / FEMA review Contention EX 16.E alleges that the fact that Marketing Evaluations, Inc., did not participate in the exercise demonstrates a fundamental flaw in the LILCO Plan.
First, as described in Section II.C above, Contention EX 16.E, along with Contentions l
EX 24.A and 34, essentially raise the issue of whether LILCO will be able to provide prompt notification to the public in the event of a siren failure. Backup notification for the siren system is not required by NUREG-0654; consequently, provisions for
.. backup notification methods are not essential elements of any emergency plan. It fol-Icws that a decision not to exercise such a non-essential element of an emergency plan could not constitute a fundamental flaw. Second, to the extent that subpart 16.E is 1
read to raise the issue of the " willingness" of Marketing Evaluations, Inc. to implement LILCO's Plan, that issue is governed by the letter of agreement and was decided during Phase II. Intervenors should not be permitted to revisit Marketing Evaluations' will-ingness to implement the LILCO Plan. Finally, the contention lacks sufficient specif-icity and basis. It alleges merely that Marketing Evaluations did not participate in the exercise. The mere nonparticipation of Marketing Evaluations in the exercise cannot be characterized as a fundamental flaw.
EX 16.F 1.
Reopens old issues 2.
Challenges the scenario / FEMA review 3.
No fundamental flaw In Contention EX 16.F Intervenors attempt to relitigate the issue of school par-ticipation in planning for a Shoreham emergency by complaining that not all schools in the EPZ participated in the exercise. As discussed in Section II.F above, the Board has previously ruled on the adequacy of school preparedness despite some schools' opposi-tion to Shoreham. In addition, by merely alleging that not all schools participated in the exercise, Intervenors (1) challenge the scenario and (2) fail to identify any funda-mental flaw in the LILCO Plan as a result.
EX 16.G 1.
Reopens old issues 2.
Challenges the scenario / FEMA review 3.
No fundamental flaw In Contention EX 16.G Intervenors attempt to relitigate the issue of school bus driver availability. As discussed in Section II.F above, the Board has previously ruled on the adequacy of provisions for school bus drivers in the LILCO Plan. In addition, mere-ly by alleging that not all school bus drivers participated in the exercise, Intervenors (1) challenge the scenario and (2) fail to identify any fundamental flaw in the LILCO Plan as a result.
EX 16.H l
1.
No fundamental flaw l
2.
Redundant of EX 15.D 3.
Reopens old issues Contention EX 16.H fails to allege a fundamental flaw in the Plan because the lack of participation by hospital officials demonstrates nothing about the adequacy of the LILCO Plan in regard to its provisions for making protective action recommenda-tions for hospitals. A failure to include a certain function or group of players in an ex-crcise, even if established, does not constitute or even indicate the existence of a fun-damental flaw in the Plan. To the extent Intervenors argue that it is fatal that hospital officials did not participate in the exercise, they implicitly attack the generic issue of hospital emergency planning. See Section II.E.1 above.
In addition, Contention EX 16.H is redundant of Contention EX 15.D. Contention EX 15.D alleget a fundamental flaw because some unspecified evacuation procedures for hospitals allegedly were not exercised. If LERO did not-engage the hospitals in evacuation procedures, then obviously the hospital officials did not participate in the exercise, at least in regard to evacuation. To the extent Contention EX 16.H repeats what is implicit in EX 15.D., it is redundant and should be rejected.
EX 16.I 1.
No fundamental flaw 2.
Lack of basis 3.
Challenges the scenario / FEMA review Contention EX 16.I falls, as discussed in detail in Section II.E above, to allege a fundamental flaw in the Plan because the lack of participation in the exercise by actual nursing and adult home officials, even if established, demonstrates nothing about the adequacy of the LILCO Plan in regard to its provisions for making protective action recommerdations for such facilities. Contention EX 16.I also constitutes a bald attack cn the FEMA-approved scenario.
Moreover, this contention lacks basis because it does not allege facts or sources of facts from which it could be judged significant or even relevant that most actual nursing home officials did not participate in the exercise. Indeed, the fact is that three such facilities participated: Oak Hollow Nursing Center, Crest Hall Health Related Fa-cility, and Riverhead Nursing Home. In all other cases, call-ups of nursing homes were simulated, and LERO successfully demonstrated its ability to handle messages from and dispatch emergency vehicles to two special facilities in the EPZ. See FEMA Report at 36,43.
EX 16.J 1.
Reopens old issues 2.
No fundamental flaw 3.
Challenges the scenario / FEMA review Contention EX 16.J. serves merely as a vehicle for Intervenors to attempt to relitigate the issue of reception centers for evacuees from special facilities. That issue was litigated before the Licensing Board. See Section II.E.3 above. In addition, Conten-tion EX 16.J falls to allege a fundamental flaw in the Plan because the lack of partici-pation in the exercise by officials from potential special reception centers demon-strates nothing about the adequacy of the Plan.
Lack of - participation by such personnel, even if established, does not constitute or even indicate the existence of a fundamental flaw in the Plan. Contention EX 16.J also constitutes an impermissible challenge to the scenario.
EX 16.K l
1.
No fundamental flaw 2.
Reopens old issues 3.
Challenges the scenario / FEMA review This contention is inadmissible because it challenges the scenario and does not present a fundamental flaw in the LILCO Plan. Intervenors merely allege that some bus companies were not requested to participate in the exercise. What they do not al-lege is why this is significant to show a " fundamental flaw" in LILCO's Plan. What they also do not allege, and can not allege, is that valid letters of agreement are not in force with those companies. See PID,21 NRC at 825-27. If Intervenors seek to use this con-tention to challenge the adequacy of those letters of agreement, then the contention is 4
again inadmissible as an attempt to relitigate EP Contention 24.F.2 (see Section II.L).
EX 16.L 1.
No fundamental flaw 2.
Reopens old issues 3.
Challenges the scenario / FEMA review Contention EX 16.L fails to allege a fundamental flaw in the Plan because the fact that some ambulance companies did not participate in the exercise demonstrates nothing about the adequacy of LILCO's Plan. Lack of participation by such companies, even if established, does not constitute or even indicate the existence of a fundamental flaw in the Plan. Moreover, this contention plainly attacks the scenario and lacks basis because it is unclear why it is significant or even relevant that many actual ambulance companies did not participate.
Contention EX 16.L merely repeats the issue of the availability to LILCO of am-bulances and ambulettes during an emergency. See Section II.E.4 above.
i EX 16.M 1.
Reopens old issues Contention EX 16.M, like most of the " realism" contentions (see Section II.B tbove), complains that the scope of the exercise was too limited because the local gov-crnments did not participate. However, EX 16.M is distinct in that it specifies the fol-1: wing functions that were not simulated in the exercise:
1.
Local law enforcement 2.
Emergency fire and rescue services 3.
Snow removal 4.
Traffic control on the roads surrounding the Nassau Coliseum 5.
Traffic control, parking supervision, and security at the Nassau Coliseum The references to local law enforcement, " emergency fire and rescue services,"
and " snow removal" are simply restatements of contentions that have already been ruled inadmissible or litigated and decided against Intervenors. The contention about police, fire, and rescue services is precluded by an earlier Board ruling. EP Contention 24.Q in the " Revised Emergency Planning Contentions" of July 26, 1983, read as fol-lows:
Contention 24.Q. The LILCO plan appears to rely upon local law enforcement agencies to provide security in evacuated areas.
(Plan at 2.2-4; Appendix A at IV-82).
- However, LILCO has no agreements with police departments to pro-vide such security in the event of a radiological emergency.
Thus, despite LILCO's recognition of the necessity for "secu-rity patrols to prevent vandalism or theft,"(Appendix A, at IV-82), the Plan fails to provide for such patrols. In the ab-sence of such agreements, there can be no assurance that the LILCO Plan or the protective actions contemplated in the Plan can or will be implemented.
Revised Emergency Planning Contentions at 67-68 (July 26,1983). The Board denied the admission of this contention with the following words:
i l
l i
___ _ i 1
24.Q is denied. This subcontention assumes the Suffolk County Police will fail to perform a regular police function.
There is no basis to assume that the Suffolk County Police, contrary to their normal duties, would refuse to provide rea-sonable and appropriate protection in the event of any type of emergency in the County.
Special Prehearing Conference Order (Ruling on Contentions and Establishing Schedule for Discovery, Motions, Briefs, Conference of Counsel, and Hearing), slip op. (August 19, 1983). For the same reasons, a contention (EP Contention 53.A) about security to prevent vandalism and thef t in vacated neighborhoods was also denied. I_d. at 20. And for the same reason Contention EX 16.M should be denied.
Similarly, the issue of snow removal has already been decided by the Licensing Board and affirmed by the Appeal Board. PID, 21 NRC at 813-15, aff'd as to this issue, ALAB-832,23 NRC 135 (1986).
Likewise, the part of Contention EX 16.M about traffic control and other police supervision at and around the Nassau Coliseum are simply issues that were not admitted for litigation by the Board. Order, May 6,1985 (unpublished); Memorandum and Order, June 10,1985 (unpublished). The Appeal Board has ordered them admitted, ALAB-832, 23 NRC at 161-62, but LILCO has requested Commission review of this Appeal Board decision, and the Commission has directed the Licensing Board to continue to defer the remand proceedings until further order. CLI-86-11, slip op. at 2. Moreover, LILCO will shortly replace the Coliseum with other facilities. It would therefore be inappropriate to reinstate this issue in the guise of an exercise issue.
EX 16.N 1.
Not based on exercise 2.
Challenges the scenario / FEMA review 3.
No fundamental flaw 4.
Redundant of EX 15.L 5.
Reopens old issues EX 16.N alleges that the scope of the exercise was too limited because
-. i i
congregate care centers were not activated and demonstrated during the exercise. This contention is not based on the exercise. It is based on the fact, quite apart from the Gxercise, that some owners of congregate care centers have said that they do not want their facilities to be part of the Shoreham Plan. Intervenors have tried several times to persuade the NRC to relitigate this issue and have failed every time; this contention is simply another such try.
Also, the allegation that the scenario did not call for the congregate care cen-ters to be demonstrated is a challenge to the scenario. Moreover, it fails to allege a fundamental flaw, because no one seriously doubts the ability of the Red Cross to find and operate relocation centers and because the Board has ordered the NRC Staff to verify that the Red Cross has up-to-date agreements for congregate care centers.
i EX 17 1.
Not based on exercise 2.
Challenges the scenario / FEMA review 3.
No fundamental flaw 4.
Redundant of EX 15,16 1
Contention EX 17 raises the purely legal argument that, accepting the truth of Intervenors' allegations that the scenario excluded important elements and did not in-clude participation by a number of support organizations, then the exercise violated 10 CFR S 50.47(b)(14) and 10 CFR Part 50, App. E, S IV.F. This contention should not be accepted for litigation. It raises only purely legal issues, none of them amounting to a potential fundamental flaw in the LILCO Plan, and it is not releted to the exercise re-sults. Finally, to the extent the contention relies on Contentions EX 15 and 16 for its factual bases, it is duplicative of those contentions and suffers from the same objec-tions raised regarding them, i
.. _. EX18 1.
Redundant 2.
Challenges the scenario / FEMA review Contention EX 18 simply alleges that the February 13 exercise was so limited that it "could not... yield valid or meaningful results," because some entities and peo-ple either did not participate or did not participate as fully as they might have. In subparts A thru C (with C itself having six subparts), the Intervenors list these entities:
A-The entities and individuals in EX 15 and 16 (which list virtually every entity addressed by the Plan)
B-Suffolk County, the State of New York, and the State of Connecticut C-Bus companies, ambulance companies, the Nassau County Red Cross, U.S. Coast Guard, the Shoreham-Wading River School District, and Nassau County, all of which participated but, in the Intervenors' view, not fully enough.
All these contentions are inadmissible, first, because they are redundant of other con-tentions, as detailed below.
Second, they are inadmissible because they challenge the FEMA-approved sce-nario. It is evident that, for the purposes of this litigation, Intervenors would claim that the exercise was inadequate unless it called up every emergency organization, 6very worker, and every vehicle available. No exercise does this, and the LILCO exer-cise was unremarkable in this respect. Nowhere in Contention EX 18 do Intervenors claim that the scenario for this exercise was different in kind from the scenarios at other such exercises.
EX 18.A 1.
Challenges the scenario / FEMA review 2.
No fundamental flaw I
3.
Redundant of EX 8-14, 15, 16
__. Contention EX 18.A says that the exclusion of elements, entities and individuals in EX 15 and 16 resulted in a lack of required governmental participation and a failure of the exercise. This contention has no factual content or basis of its own, apart from EX 15 and 16, and is redundant of them.
EX 18.B 1.
Challenges the scenario / FEMA review 2.
Redundant of EX 8-14,18.A 3.
" Connecticut" reference redundant of Ex 15.I,16.A 4.
No fundamental flaw Although Contention EX 18.B is by and large a repeat of the earlier " realism" contentions, it adds the word " Connecticut," which repeats the complaint of Conten-tions EX 15.1 and 16.A. Contention EX 18.B is also inadmissible because it attacks the exercise scenario rather than addressing a possible fundamental flaw in the Plan.
EX 18.C 1.
Reopens old issues 2.
Challenges the scenario / FEMA review Contention EX 18.C says that the exercise did not ensure that emergency organi-zation personnel are familiar with their duties. It is inadmissible for the reasons given below.
EX 18.C(l) 1.
No fundamental flaw 2.
Reopens old issues 3.
Challenges the scenario / FEMA review This contention does not present a fundamental flaw in the LILCO Plan. Inter-venors merely state that nine bus companies were ready to make four buses available.
They do not allege that these four buses were the only buses available at each company.
Thus, Intervenors have offered no facts to impugn the letters of agreement with bus companies contained in the LILCO Plan. Indeed, as noted in Section II.L above, these l
-- 4 letters of agreement were the subject of litigation in the earlier emergency planning proceedings. Attempts to relitigate their adequacy is now foreclosed. Finally, Conten-tion EX 18.C(i) seeks to challenge the exercise scenario.
EX 18.C(li) 1.
Redundant of EX 16.L 2.
Reopens old issues 3.
No fundamental flaw 4.
Challenges the scenario / FEMA review Contention EX 18.C(ii) is repetitious of EX 16.L. In fact, it is part and parcel of i
EX 16.L. Contention EX 16.L complains that the listed ambulance companies did not participate in the exercise. Contention EX 18.C(ll) complains that although two ambu-lance companies participated, that participation was too limited.
Contention EX 18.C(ii) also implicitly attempts to litigate,the number of ambulances and ambulettes I
available to LILCO. That issue should not be relitigated here. See Section II.E.4 above.
Contention EX 18.C(li) also fails to allege a fundamental flaw in the Plan, be-cause the fact that only 12 vehicles from Medibus, Inc. and Stat Equipment Corp. were
)
sent out (instead of the full contingent of 57) demonstrates nothing about the adequacy of the LILCO Plan. The fact that only a sample of resources was actually exercised does not demonstrate a fundamental flaw in the Plan; indeed, it is FEMA's usual prac-tice to test only a sample of resources. Finally, Contention EX 18.C(ii) constitutes an improper attack on the adequacy of the scenario because it was allegedly not a " full participation" exercise.
EX 18.C(lii) 4 1.
Challenges the scenario 2.
No fundamental flaw 3.
Lack of basis Contention EX 18.C(lii) alleges that not enough Red Cross personnel participated in the exercise and that therefore the exercise cannot " ensure that they are familiar e
,--n, with their duties." This contention is inadmissible. First, it is simply another quarrel with the FEMA scenario, not the Plan. Second, the contention does not allege a "funda-mental flaw"; by no stretch of the imagination can the number of Red Cross personnel at a particular exercise fairly be called a fundamental flaw in the Plan.
Third, the contention is irrelevant and lacks basis, because it is not the purpose of the FEMA graded exercise to " ensure that Red Cross personnel are familiar with their duties." Indeed, Intervenors have conceded as much. They have conceded that
" role conflict" is not likely to be a problem for the Red Cross. Suffolk County and State of New York Proposed Findings of Fact and Conclusions of Law on Offsite Emergency Planning, at 97 (Oct. 26,1984). In doing so, they proposed a finding that the Red Cross are " trained and organized" for setting up relocation centers. Id. And Suffolk County's own witness conceded "it is [not] inappropriate for LILCO to rely on the American Red Cross because the American Red Cross has a good record in dealing with all sorts of natural disasters." Tr.14,878 (Harris.)
EX 18.C(iv) 1.
No fundamental flaw 2.
Redundant of EX 15.B LILCO objects to Contention EX 18.C(iv) on the ground that a fundamental flaw in the Plan is not established by the fact that not every aspect of LILCO's Plan to noti-fy persons in the water portion of the EPZ was implemented on the day of the exercise (see Section II.C above).
EX 18.C(v) 1.
Reopens old issues 2.
Challenges the scenario / FEMA review EX 18.C(v) challenges the scope of the exercise for testing response by schools.
As discussed above in Section II.F, this contention is inadmissible because it questions i
_ the adequacy of school planning, which has been previously litigated, and challenges the exercise scenario.
EX 18.C(vi) 1.
Redundant of EX 16.M 2.
Challenges the scenario 3.
Reopens old issues Contention EX 18.C(vi) says that the participation by Nassau County in the exer-cise was limited to certain phone calls and that the Nassau County government did not receive briefings provide traffic control on public 4
roads near the Nassau Coliseum provide traffic control.and supervise parking at the Coliseum provide security at the Coliseum provide social service assistance.
]
Thus EX 18.C(vi) is redundant of EX 16.M, which also alleges (among other things) that i
Nassau County police did not participate in the exercise to provide traffic control on the roads surrounding the Coliseum and traffic control, parking supervision, and securi-ty at the Coliseum. Moreover, it is inadmissible because it alleges a flaw in the scenar-10 and not the Plan and because it essentially restates the Nassau Coliseum issues that are held in abeyance pursuant to CLI-86-11, slip op. at 2.
EX 19 1.
Challenges the scenario / FEMA review 2.
No fundamental flaw 3.
Not based on exercise Contention EX 19 raises the purely legal argument that FEMA's unwillingness to supply an ultimate finding that the LILCO Plan provides reasonable assurance of pro-tection of the public health and safety evidences a fundamental flaw in the Plan, and d
__ that this flaw is revealed by FEMA's adherence to this position in reviewing the February 13 exercise. The contention should not be accepted for litigation. It raises only pure legal issues, none of them amounting to a potential fundamental flaw with the Shoreham Plan, and it is not related to the exercise (as distinguished from any other as-pect of the Shoreham Plan).
As Intervenors note, FEMA has always been unwilling to make an ultimate find-ing that the Shoreham Plan prepared by LILCO provides reasonable assurance of pro-tection of the public health and safety. The reason, FEMA has always stated, is that its cvaluative framework, that of its regulations in 44 CFR Part 350, presumes state and local governmental involvement. The absence of that involvement at Shoreham defini-tionally precludes FEMA's ability to draw such a finding.E FEMA's inability to draw an affirmative finding on protection of the public health and safety at Shoreham is not dispositive, however, for several reasons:
4 1.
FEMA's agnostic position is determined by its Part,350 regulations, which presume state and local participation in offsite emergency planning and which FEMA has construed to permit it to draw ultimate affirmative judgments about protection of the public health and safety only when there is such participation.
2.
Ultimate determination of the adequacy of offsite emergency prepared-ness in this proceeding has never been governed by FEMA's Part 350 regulations, how-cver, but rather by the Memorandum of Understanding (MOU) between FEMA and the M/
Frank Petrone's personal position, referred to in Contention EX 19 - that be-cause of the absence of state and local governmental involvement with emergency planning at Shoreham there was n_ot reasonable assurance of protection of the public o
health and safety - obviously goes a step further than the agency's agnostic position, and was repudiated by the agency at the time. Even Mr. Petrone conceded, however, that his was a policy position based oa the absence of state and local government par-ticipation in Shoreham emergency planning, rather than on any particular factual mer-its of LERO's performance of emergency functions in the February 13,1986 exercise or any other specific aspects of the Shoreham Plan.
=_
-f !
NRC, published in the December 16, 1980 Federal Register, 45 Fed. Reg. 82,713. Under the FEMA-NRC MOU, FEMA continues to provide the NRC with its technical expertise on emergency planning evaluation, but the ultimate licensing responsibility for drawing health and safety judgments on offsite emergency preparedness rests with the NRC.
MOU,1 II.4 (NRC), id. at 82,714, col. 2. This is consistent with the NRC's regulations, which afford to FEMA findings a presumption, but a rebuttable and not a conclusive one, of validity.10 CFR S 50.47(a)(2).
3.
The history of this exercise has been consistent with the proposition that the NRC bears ultimate responsibility for determination of the adequacy of offsite emergency preparedness. The exercise was planned, scheduled and conducted with FEMA's participation, notwithstanding FEMA's unwillingness to draw an affirmative ul-timate conclusion. If Intervenors' theory about the effect of FEMA's policy position had been regarded as dispositive by FEMA, surely that agency would have regarded the ex-crcise as inherently an exercise in' futility and would not have participated. To the contrary, however, FEMA assisted in the exercise including planning the roles of per-sons simulating ad hoc participation by governmental officials in emergency resnonse.
4.
The NRC's view does not require advance state and local governmental participation in emergency planning and response. The Commission has received nu-merous motions by Intervenors during the past three and a half years seeking to termi-nate this proceeding, or to obtain other forms of ultimate relief, predicated on the naked fact of their refusal to participate in emergency planning for Shoreham; the Commission has repeatedly denied them. Most recently, in CLI-86-13, (July 24,1986)
I i
i the Commission directly endorsed and remanded for any necessary factual proceedings
)
the " realism" and " immateriality" arguments propounded by LILCO in the face of refus-al by New York State and Suffolk County to participate in emergency planning at Shoreham.
Both of those arguments accept the possibility that, in proper factual
-100-circumstances, an emergency plan will be found acceptable despite the unwillingness of state and local governments to participate in advance planning for radiological emergencies for a particular power plant.
In short, Intervenors' argument poses only the legal and policy issues inherent in FEMA's self-imposed limitations under its Part 350 regulations. Contrary to tne con-tention's suggestion, those issues are not determinative of this proceeding, as a result of i
the NRC-FEMA MOU,10 CFR S 50.47(a)(2) of the Commission's regulations, and the Commission's recent decision in CLI-86-13. As a result, FEMA's technical findings are admissible as expert conclusions, with a rebuttable presumption of validity; its unwillingness to draw an ultimate conclusion about adequacy of protection of public health and safety is simply not determinative of this or any aspect of the proceeding.
Further, the effect (or lack thereof) of FEMA's position is totally independent of the exercise: FEMA has taken this position in its RAC reviews of the Fhoreham Plan and in every other forum where it seemed relevant to the agency. Thus the contention falls to raise any potentially fundamental flaw with the Shoreham Plan, and is not related to the conduct of the exercise. It should be dismissed.
EX 20 1.
Challenges the scenario / FEMA review 2.
No fundamental flaw 3.
Redundant of EX 15,16 4.
Reopens old issues Contention EX 20 is redundant of Contentions EX 15 and 16, merely restating that " FEMA failed to review" the listed items. Intervenors once again challenge the FEMA-approved scenario, and FEMA's evaluation process as a whole, by listing proce-dures or activities which FEMA allegedly did not test or observe. As in Contentions EX 15 and 16, Intervenors fall to claim anywhere that the scenario for this exercise was materially different from and inferior to the scenarios used at other exercises.
-101-Moreover, in many instances the Intervenors merely resurrect previously litigated is-sues. For these reasons, Contention EX 20 is inadmissible.
EX 20.A 1.
Redundant of EX 15.A,16.C,16.D,20.B,24 2.
Phase I 3.
Challenges the scenario / FEMA review 4.
Lack of specificity 5.
Lack of basis This contention is redundant of Contentions EX 15.A,16.C,16.D, 20.B, and 24, all of which raise the issue of the adequacy of LILCO's prompt notification system. The adequacy of the prompt notification system, including the tone alert radio system, was addressed and dismissed in Phase I and is.r_e_s _iudicata (see Section II.C, above). Second, LILCO objects to Contention EX 20.A as a challenge to the exercise scenario. Third, Contention EX 20.A does not allege facts with sufficient specificity to apprise LILCO of the issues raised. Hence, the contention fails to provide a basis for the allegation that FEMA's failure to revie,w the existence, operability, or adequacy of tone alert ra-dios constitutes a fundamental flaw in the LILCO Plan.
EX 20.8 1.
Redundant of EX 15.A,16.C,16.D,20.A,24 2.
Phase 1 3.
Reopens old issues 4.
No fundamental flaw 5.
Challenges the scenario / FEMA review LILCO objects to subpart 20.B on a number of grounds. First, the contention is redundant of Contentions EX 15.A.16.C,16.D,20.A, and 24, which all raise the issue of whether the failure to test the existence, operability, and adequacy of the prompt noti-fication system during the excrcise constitutes a fundamental flaw. Second, as dis-cussed at length in Section II.C, the adequacy of the prompt notification system was decided in Phase I and may not be relitigated. Third, the specific issue of "LILCO's pro-cedure involving actions by WALK personnel, implementation of WALK Radio internal
-102-procedures, and communications and interactions between WALK Radio personnel and LILCO" was decided during the Phase IIlitigation. See PID,21 NRC at 764.
EX 20.C 1.
Challenges the scenario / FEMA review 2.
No fundamental flaw This contention is an improper attempt to litigate the adequacy of FEMA's re-view process (see Section I.C). The open briefings mean that all those present will share the information no matter what organization they represent. In addition, the sharing of information among different speakers at the ENC (NUREG-0654,5 II.G.4.b) is not an inherently essential function that gives rise to a litigable " fundamental flaw."
Hence, the contention should be denied admission.
EX 20.D 1.
Challenges the scenario / FEMA review 4
2.
No fundamental flaw 3.
Redundant of EX 15.B 4.
Lack of basis First, Contention EX 20.D, which alleges that FEMA did not review measures to notify and evacuate the water portion of the EPZ, is inadmissible because it challenges the adequacy of the exercise scenario. Second, the contention does not plead a funda-mental flaw in the Plan itself (see Section II.C). Third, there is no basis for the state-ment that " FEMA did not review any actions taken to implement or to demonstrate the ability to implement notification to persons in the water portion of the EPZ." In fact, FEMA did observe the use of both primary and backup communication systems with the Eaton's Neck Coast Guard Station (FEMA Report at 29) and found that "the LERO EOC met the exercise objective of demonstrating the organizational ability to manage an or-derly evacuation of all or part of the 10-mile EPZ including the the water portion (EOC)." FEMA Report at 34.
-103-EX 20.E.
1.
Redundant of 16.H,16.I 2.
Challenges the scenario / FEMA review 3.
No fundamental flaw First, Contention EX 20.E is duplicative of Contentions EX 16.H (concerning nonparticipation of hospital officials) and EX 16.I (concerning nonparticipation of nursing / adult home officials). Second, Contention EX 20.E challenges the adequacy and validity of FEMA's evaluation process, not the LILCO Plan, and therefore is not based on the exercise.
Third, Contention EX 20.E fails to allege a fundamental flaw in the Plan because a decision by FEMA not to review LERO's ability to identify, contact, and communicate with hospital and other special facility officials, even if established, demonstrates nothing about the adequacy of LILCO's Plan in regard to that activity. A failure to re-view a certain function does not provide any basis for the assertion that a fundamental flaw exists in the Plan. Moreover, Contention EX 20.E lacks basis in that LERO's abili-ty to identify, contact, and communicate with special facilities was indeed tested. The fact that FEMA may not have reviewed this activity does not show a fundamental flaw in the Plan.
EX 20.F J
1.
Reopens old issues 2.
Challenges the scenario / FEMA review Contention EX 20.F alleges that the school participation in the exercise was not sufficient, and that the exercise did not adequately test various aspects of school re-sponse. For the reasons described in detail in Section II.F above, the contention is not admissible because it attempts to relltigate school issues and challenges FEMA's review of the Plan.
i t
-104-EX 20.G 1.
Reopens old issues 2.
Challenges the scenario / FEMA review 3.
No fundamental flaw Contention EX 20.G rehashes previously litigated schools issues and impermis-sibly challenges FEMA's review of the LILCO Plan. The contention also points to the LERO response to the Ridge free play message as indicating a fundamental flaw in the LILCO Plan. In fact this did not indicate a fundamental flaw, because (1) it tested a backup capability and (2) Intervenors have not alleged that school children would not have been evacuated in a timely fashion. See Section II.F above.
EX 20.H 1.
Challenges the scenario / FEMA review 2.
Reopens old issues 3.
No fundamental flaw 4.
Redundant of 16.J.16.L.18.C(ll)
First, Contention EX 20.H, like the other subparts of EX 20, constitutes a direct challenge to the adequacy and validity of FEMA's evaluation process. To the extent Contention EX 20.H attacks the sample of functions observed by FEMA, and not any-thing LERO did wrong, it constitutes an improper issue for litigation in these proceed-ings.
Second, to the extent Contention EX 20.H attempts to litigate the issue of re-ception centers for special facilities (see especially subparts (1) and (ii)), it revisits an issue previously litigated. See Section II.E.3 above; to the extent Contention EX 20.H attempts to litigate the number of ambulances and ambulettes available to LILCO, it again resurrects a previously litigated issue. See Section II.E.4 above.
Third, just as in other Contention EX 20 subparts, Contention EX 20.H fails to al-lege a fundamental flaw because a decision by FEMA not to review certain functions does not demonstrate a flaw in the Plan. Finally, to the extent Contention EX 20.H
-105-raises the issue of reception centers for special facilities, it is repetitive of Contention EX 16.J; to the extent it raises the issue of the availability of ambulances and cmbulettes it is repetitive of Contentions EX 16.L and 18.C(ll).
EX 20.I 1.
Challenges the scenario / FEMA review 2.
Reopens old issues 3.
No fundamental flaw 4.
Redundant of 20.H.16.J,18.C(ii),20.H Contention EX 20.I constitutes a direct challenge to the sufficiency and validity cf FEMA's evaluation process, rather than a criticism of LERO activity during the ex-crcise. To the extent Contention EX 20.I attempts to raise the issue of reception cen-ters for special f acilities (see especially subpart (ii)), it revisits an issue previously liti-gated. See Section II.E above. To the extent EX 20.1 attempts to relitigate evacuation time estimates for special facilities (see subpart (1)), it is an attempt to reopen an issue previously litigated and decided. PID,21 NRC 644 at 835-38. To the extent EX 20.I at-tempts to relitigate the issue of the number of ambulances and ambulettes available to LILCO (see subparts ill & iv), it resurrects an issue previously litigated and decided. See Section II.E above.
Contention EX 20.I fails to allege a fundamental flaw in LILCO's Plan because the fact that FEMA did not review certain functions, even if established, in no way re-veals a flaw in the Plan.
To the extent Contention EX 20.I raises the issue of reception centers for special facilities, it is duplicative of Contentions EX 20.H and 16.J; to the extent it raises the issue of the availability of ambulances and ambulettes it is repetitive of Contentions EX 16.L.18.C(ll), and 20.H.
l t
I
-106-EX 20.J 1.
Challenges the scenario / FEMA review 2.
Reopens old issues 3.
No fundamental flaw This contention challenges the adequacy of FEMA's review of the exercise (see Section I.C); it does not allege fundamental flaws in the LILCO Plan. None of the three observations cited by Intervenors was a critical omission by FEMA. First, the amount of time needed to evacuate the transportation-dependent population could only have 1
been tested by having everyone in the EPZ evacuate the area, and exercises of emer-gency plans simply do not require tott mass participation. Second, the availability of buses was the subject of extensive titigation in earlier emergency planning proceedings (see Section II.L). No purpose would have been wrved by FEMA's explicitly reviewing the letters of agreement again. Third, protective action recommendations for the transportation-dependent portion of the EPZ are the same as those for the population with access to cars. See OPIP 3.6.1. Accordingly, there is no reason to look indepen-j dently at the protective action recommendations for the transportation-dependent pop-
~
ulation.
1 EX 20.K 1.
Lack of basis 2.
No fundamental flaw 3.
Reopens old issues As noted in Section II.M this contention is inadmissible because it does not in-volve a fundamental flaw in the LILCO Plan. In addition, this subpart merely seeks to revisit already resolved training issues.
EX 20.L 1.
Challenges the scenario / FEMA review 2.
Reopens old issues
-107-EX 20.L alleges that FEMA did not review the functions of the Nassau Coliseum reception center that would be necessary if more than 100,000 people were advised to report there. This is a challenge to FEMA's review, rather than to the Plan. It also ap-parently seeks to raise issues about the adequacy of the Coliseum that are now pending i
before the Appeal Board or held in abeyance pursuant to CLI-86-11.
EX 20.M 1.
Not based on the exercise 2.
Challenges the scenario / FEMA review 3.
No fundamental flaw 4.
Redundant of EX 15.L and 16.N EX 20.M alleges that FEMA did not review LILCO's ability to identify, activate, or staff congregate care centers. This is, once again, a challenge to the exercise sce-nario and to FEMA's review. It is not based on the results of the exercise at all, but on an allegation that the agency did not do its job properly. Moreover, it does not allege a fundamental flaw, because it is not LILCO but the Red Cross that identifies, activates, f
and staffs congregate care centers, and there has never been any serious issue in this j
proceeding (apart from the Intervenors' persistent attempts to claim that congregate care centers are not available) about the Red Cross's ability to do so.
EX 20.N 4
1.
Challenges the scenario / FEMA review f
2.
No fundamental flaw l
3.
Reopens old issues First, EX 20.N, which alleges that FEMA's review of personnel rosters was an in-adequate means of determining whether adequate staffing levels could be maintained j
throughout the course cf an emergency, is an improper challenge to the adequacy and validity of FEMA's review. Second, the contention does not allege a fundamental flaw because a decision not to review actual availability of staff does not produce facts that demonstrate a staffing problem. In addition. EX 20.N(iii) seeks to relitigate letters of agreement with ambulance and ambulette companies, which pledge that personnel will
-108-be available to operate the ambulances and ambulettes required under the Plan ( PID,21 NRC at 831-32), and to relitigate as well the Red Cross staffing of reception and con-gregate care centers (CPID 22 NRC at 419-20).
EX 20.0 1.
Challenges the scenario / FEMA review 2.
Lack of basis 3.
No fundamental flaw In Contention EX 20.0 Intervenors argue that because LERO knew the day on which the exercise would occur, its response was significantly improved. This conten-tion is inadmissible on a number of grounds. First, Intervenors have not alleged, nor could they factually, that FEMA's announcement of the exercise date was a departure from normal agency practice. Indeed, exercise dates are always announced; in some exercises players are even pre-positioned. Second, Intervenors have offered no factual justification for their bald claim that knowledge of the exercise date had "a significant impact" on LERO mobilization. Thus, the contention lacks factual basis. Finally, even if mobilization was improved by knowing the exerclie date, Intervenors have failed to offer any basis for believing that absent that improvement, a fundamental flaw would have been revealed in the LILCO Plan.
EX 21 1.
Challenges the scenario / FEMA review 2.
No fundamental flaw 3.
Redundant 4.
Reopens old issues Contention EX 21 asserts that because the sample of activities reviewed by FEMA was too small, no valid generalizations or conclusions could be drawn from the exercise. The primary reason this contention is inadmissible is that it is nothing more than a baseless across-the-board assault on the scenario and the FEMA Report. Inter-venors merely attack the way FEMA does its job. Such an attack is not a permissible subject of litigation.
-109-Moreover, not only are several subparts redundant of issues raised in other con-tentions, but parts of Contention EX 21 attempt to raise previously litigated issues as well. For all of these reasons, Contention EX 21 should not be admitted.
EX 21.A 1.
Redundant of EX 16.E 2.
No fundamental flaw 3.
Challenges the scenario / FEMA review In Contention EX 21.A Intervenors allege that FEMA's observation of three of the 60 route alert drivers was too small a sample to justify FEMA's conclusion that ex-ercise objectives FIELD 5, SA 9, and EOC 15 were met. First, LILCO objects to Con-tenticn EX 21.A as redundant of Contentions EX 16.E and 34. Second, EX 21.A does not raise a fundamental flaw. Since backup notification for the siren system is not required by the regulations, provisions for backup notification are not essential elements of an emergency plan the lack of which could lead to a fundamental flaw. (Moreover, objec-tive EOC 15 does not apply to route alert drivers, because the 15-minute prompt notifi-cation requirement is not applicable to them. (PID, 21 NRC at 758-759.) Third, EX 21.A is objectionable as an improper challenge to the adequacy of FEMA's review of the exercise.
EX 21.B 1.
Lack of basis 2.
No fundamental flaw 3.
Challenges the scenario / FEMA review As discussed in Section II.L, this contention is without factual basis. In addition, it does not reveal a fundamental flaw in the LILCO Plan. Intervenors have failed to al-lege that the actions of the eight drivers in any way prevented the bus transportation plan from being executed as scheduled. Finally, the contention is inadmissible because it is a challenge to FEMA's review process.
1
-110-EX 21.C 1.
Reopens old issues 2.
Challenges the scenario / FEMA review 3.
No fundamental flaw In Contention EX 21.C, Intervenors once again raise the Ridge free play message to challenge, impermissibly, the validity of FEMA's review of the Plan and the lack of school participation in emergency planning. See Section II.F, above.
EX 21.D
. 1.
Challenges the scenario / FEMA review 2.
No fundamental flaw 3.
Redundant of 20.H Contention EX 21.D alleges nothing about LERO's performance during the exer-cise. It merely attacks the exercise itself by asserting that no valid generalizations could be drawn from observing a partial sample of ambulance /ambulette procedures.
Contention EX 21.D is an improper attack on the scenario and therefore is inappropri-
' ate for litigation in these proceedings. Even if it were established that the sample of ambulance /ambulette resources reviewed by FEMA were too small, that conclusion would demonstrate nothing about the adequacy of LILCO's Plan, much less demonstrate a fundamental flaw in the Plan. Finally, Contention EX 21.D is repetitive of Conten-tion EX 20.H in that they both attack the validity of conclusions drawn from review of only one ambulance and one ambulette. See Section U.E.
EX 21.E 1.
Lack of basis 2.
No fundamental flaw 3.
Redundant of 40.B 4.
Challenges the scenario / FEMA review 5.
Reopens old issues As detailed in Section II.M, this contention lacks factual basis and does not raise fundamental flaws in the LILCO Plan. The contention is also redundant of Contention EX 40.B.
-111-EX 21.F 1.
Reopens old issues 2.
No fundamental flaw 3.
~ Challenges the scenario / FEMA review c
4.
Redundant of EX 41.B This contention questions the manner in which FEMA assessed LERO's ability to respond to roadway impediments. To the extent the contention questions the number of accidents likely to occur during an actual emergency or how those accidents will af-fect evacuation time estimates, it is inadmissible as an attempt to relitigate issues re-solved in EP Contention 65. To the extent it assails FEMA's review and grading of LERO's response, it is inadmissible both because it does not raise a fundamental flaw in the LILCO Plan and because it is redundant of Contention EX 41.B, which LILCO feels is the most logical place to discuss LERO's response to the roadway impediments as well as the implications of that response. See Section II.M above.
EX 22 1.
Challenges the scenario / FEMA review 2.
Reopens old issues 3.
No fundamental flaw 4.
Redundant 5.
Not based on exercise Contention EX 22 asserts that events at the exercise were premised on false as-sumptions, and therefore FEMA's findings and conclusions lack basis. LILCO objects to this contention primarily because it constitutes a bald attack on the scenario and FEMA's review process.
In addition, most of the subparts merely represent restatements of previously litigated issues that Intervenors seek to relitigate in the guise of exercise events. Such assertions clearly do not raise new issues based upon ex-l crcise events. Moreover, Contention EX 22 in large part is redundant of other conten-tions. It should be rejected.
-112-EX 22.A 1.
Not based on the exercise 2.
Reopens old issues EX 22.A simply argues that the Nassau Coliseum is not available for use in the Plan. This is a contention based, not on anything that happened at the exercise, but on external events. It is also an issue that is now before the Commission.
EX 22.B 1.
Reopens old issues 2.
Challenges the scenario / FEMA review Contention EX 22.B challenges the scenario because of lack of school participa-tion, and attempts to reopen issues already litigated.
EX 22.C 1.
Reopens old issues 2.
Challenges the scenario / FEMA review 3.
Not based on exercise Contention EX 22.C, which alleges that the scenario inaccurately assumed that a sufficient number of bus drivers would be available for school children, impermissibly challenges the scenario and raises an issue previously litigated and now on appeal. See Section II.F above. In addition, the "new information" of " signed certifications" men-tioned in the contention (p. 66) is not information based on the exercise and therefore the contention is outside the scope of this proceeding.
EX 22.D 1.
Reopens old issues 2.
Challenges the scenario / FEMA review 3.
Not based on exercise Contention EX 22.D alleges that there are no reception centers for school chil-dren identified in the Plan. This issue was already litigated. The contention merely at-tempts to re11tigate lack of school participation.
-113-EX 22.E 1.
Reopens old issues 2.
Redundant of EX 20.I(ii),20.H(1),20.H(ii),16.J
^
3.
Challenges the scenario / FEMA review 4.
No fundamental flaw Contention EX 22.E constitutes yet another attempt to relitigate the issue of reception centers for special facilities. That issue was fully litigated before the Licens-ing Board. See Section II.E.3 above. Contention EX 22.E. is also repetitive of Conten-tions EX 20.I(ii), 20.H (i and 11), and 16.J.
Insofar as it condemns the whole exercise because it was allegedly based on
" false assumptions," Contention EX 22.E is an improper attack on the validity and ade-quacy of FEMA's scenario. In addition, Contention EX 22.E fails to allege a fundamen-tal flaw in LILCO's Plan as demonstrated by the exercise. This contention merely uses '
an assertion that the exercise was based on false assumptions to resurrect previously litigated issues that Intervenors believe reveal fundamental flaws in the Plan. The con-tention fails to allege facts tending to show that the exercise events revealed a funda-mental flaw in the Plan.
EX 22.F 1.
Reopens old issues (shadow phenomenon) 2.
Not based on exercise / lack of basis 3.
Challenges the scenario / FEMA review 4.
Redundant of EX 40.C, 40.D, 41.C, 43.B, 44, 49.C 5.
No fundamental flaw For the reasons discussed in Section II.P. above, Contention EX 22.F, raising the issue of the shadow phenomenon, is not admissible.
EX 22.G.
1.
Reopens old issues 2.
Redundant of 15.D,16.H. 20.E(1),20.E(ii) 3.
No fundamental flaw 4.
Challenges the scenario / FEMA review
-114-Contention EX 22.G attempts to relitigate LILCO's emergency planning for hos-pitals, which was fully litigated. See Section II.E.1 above. To the extent Contention 22.G implies that EPZ hospitals would not listen to or follow LERO's suggestions on pro-tective actions, it constitutes an attempt to relitigate credibility, which was already cxtensively litigated. See PID,21 NRC at 687-691.
In asserting that "the exercise failed to demonstrate the resources or capability of accomplishing" a hospital evacuation, and in challenging proposed protective actions for hospitals, Contention EX 22.G is repetitive of Contention 15.D. In regard to the as-l sertion in Contention 22.G that "LILCO never consulted with any hospital officials," it is repetitive of Contentions 16.H and 20.E(1) and (11). In addition, Contention EX 22.G does not allege facts tending to show that certain events during the exercise revealed a fundamental flaw in the Plan. Instead, Intervenors use the fact of an exercise to relitigate credibility and hospital planning.
Finally, Contention EX 22.G improperly challenges the adequacy and scope of the scenario by asserting that the exercise was flawed because it failed to test hospital evacuation and was based on allegedly incorrect assumptions.
EX 22 H 1.
Reopens old issues As noted in Section II.L above, Intervenors have previously litigated the effect of prior school commitments on bus availability. Their arguments were rejected by this Board. PID, 21 NRC at 827. Therefore, this contention should be rejected as an at-tempt to reopen earlier emergency planning contentions.
EX 22.I 1.
Reopens old issues
(
-115-As discussed in Section II.M above, the number of accidents likely to occur during an actual emergency was the subject of EP Contention 65.D. Contention EX 22.Iis an inarimissible attempt to reopen that issue.
EX 22.J 1.
Phase I 2.
Lack of basis 3.
Not based on exercise First, LILCO objects to this entire contention as an improper attempt to relltigate the issue of commercial telephone overload, which was dismissed as a sanc-tion in Phase I and was repeatedly dismissed in Phase II of the emergency plan litigation (see Section II.C above). Second, LILCO objects to the allegation that no backup means i
of communication is provided for a number of the entities listed in subparts (1) - (vil) on both a factual and legal basis. The issue of prompt notification of non-LILCO emergen-cy support organizations and personnel, including hospitals, reception and relocation centers, bus companies, ambulance companies, FEMA, Connecticut, Nassau County, New York Telephone Company, the Coast Guard, the FAA, and Brookhaven National Laboratory by commercial telephones was litigated as part of Phase II. The Board con-cluded that "Suffolk County's criticism of LILCO's Plan to alert supporting organizations... border [ed] on the disingenuous and frivolous.... The notification plan is fundamentally simple; it requires nothing more than agency-to-agency telephone calls, the mechanics of which are in daily use.
There is no basis whatever for concluding that such calls cannot be made in an emergency. Contention 26.E is without merit." PID,21 NRC at 715-716. Intervenors again disingenuously argue that no backup means of communication is available for a number of non-LILCO support organizations.
In f act, backup means exist. In addition to commercial telephones, the following means of communication are available: ambulance companies (radio); hospitals (tone alert ra-dios); nursing homes (tone alert radios); special facilities (tone alert radios); and U. S.
Coast Guard (marine band radio).
-116-EX 22.K 1.
Reopens old issues 2.
Not based on exercise 3.
No fundamental flaw EX 22.K alleges, once again, that congregate care centers will not be available for use under the Plan. This is an attempt to reopen the issue of the availability of con-gregate care centers. See Section II.I above. It is based, not on anything that happened at the exercise, but on external events. And it alleges no " fundamental flaw," because the NRC Staff has already been ordered to verify that the Red Cross has up-to-date agreements for congregate care centers.
EX 23 1.
Preamble 2.
No fundamental flaw Contention EX 23 alleges a fundamental flaw in the LERO Plan due to LERO personnel reporting " extrapolated dose data as actual measurements at other dis-tances." As discussed in Section II.D above, this discrepancy does not identify a funda-mental flaw in the Plan; Intervenors have not alleged inaccurate PARS or other harm having come from this easily correctable error.
EX 24 1.
Preamble 2.
Phase I 3.
No fundamental flaw 4.
Redundant of EX 15.A 5.
Challenges the scenario / FEMA review Intervenors allege that the decision not to activate the siren system during the exercise, which FEMA noted as EOC ARCA 7, precludes the finding that LERO can and will provide "early notification to the public" and thus precludes a finding of reasonable assurance. First, Contention EX 24 is an inadmissible attempt to relitigate the issue of the existence, availability and adequacy of the siren system that was decided in Phase !
-117-(see Section II.H above.) Second, the decision not to sound the siren system does not raise a fundamental flaw in the LILCO Plan. As discussed at length in the FEMA Re-port at 34, the objective of demonstrating the capability for providing both an alert system and an informational or instructional message to the population throughout the 10-mile EPZ within 15 minutes was simulated and was met. The procedures required by OPIP 3.3.4 governing activation of the prompt notification system were implemented with only the final step of sounding the siren done by simulation. Thus, all that remains to be confirmed is the mechanical action of testing the siren system. LILCO has com-mitted to test the siren system in the future. See Letter from John D. Leonard, Jr. to Harold R. Denton (June 20,1986), SNRC-1269, Enclosure 1 at 4.
EX 25 1.
Preamble 2.
Redundant of EX 41.B.
l 3.
Challenges the scenario / FEMA review This contention is duplicative of other contentions relating to LERO's response to two roadway impediments and hence inadmissible. The factual issue raised in this contention is duplicative of Contention EX 41.B(ill)(b). The contention is also inadmis-sible because it does not allege a fundamental flaw in the LILCO Plan but rather takes issue with the way FEMA characterized its observations. See Section II.M above.
EX 26 1.
Preamble 2.
Reopens old issues 3.
Challenges the scenario / FEMA review Contention EX 26 challenges the scenario because not all schools participated in the exercise to implement protective actions. This contention attempts to relitigate the adequacy of school planning, as explained in Section II.F above.
1 l
l l
l
-118-EX 27 1.
Preamble 2.
No fundamental flaw 3.
Redundant of EX 50.G 4.
Lack of basis 5.
Lack of specificity Contention EX 27 should be rejected in entirety. First, it does not allege a fun-damental flaw; the problem is minor and readily correctable by providing the school bus drivers with training in the use of dosimeters and KI. LILCO has already committed to provide training in basic principles of radiation, dosimetry use, and KI and to provide personal dosimeters and KI tablets to all school bus drivers. SNRC-1269, Enclosure 1 at
- 5. Second, EX 27 is redundant of Contention EX 50.G which alleges that LILCO failed to provide training to persons and organizations relied on for implementation of its Plan and is similarly defective.
Finally, the contention's conclusion that "these deficiencies preclude a finding that protective actions for school children can and will be implemented as required by 10 C.F.R. S 50.47(b)(10)".is without basis in the f actual allegations in the contention. See Section II.K, above.
EX 28 1.
Preamble 2.
No fundamental flaw 3.
Reopens old issues 4.
Redundant of EX 50.G 5.
Lack of basis 6.
Lack of specificity The contention should be rejected in entirety. First, the alleged defect is not a fundamental flaw; as noted in the FEMA Report, the problem is an isolated rather than a pervasive one (only some of the ambulette drivers were unsure) and is readily cor-rectable with further training. FEMA Report at 44-45. Second, Contention EX 28 seeks to relltigate the issue of whether protective actions for special facilities and homebound people can and will be implemented.
The ambulance companies have
-119-executed letters of agreement which provide that vehicles and trained personnel will be available in an emergency at Shoreham. PID,21 NRC at 754,828-831. Finally, Con-tention EX 28 is redundant of Contention EX 50.G and is similarly deficient. See Sec-tion II.K above.
EX 29 1.
Preamble 2.
Redundant of EX 41.B 3.
Challenges the scenario / FEMA review This contention is duplicative of other contentions relating to LERO's response to two roadway impediments and, hence inadmissible. The factual issue raised by this contention is duplicative of Contention EX 41.B(ill)(a). The contention is also inadmis-sible because it does not allege a fundamental flaw in the LILCO Plan but rather takes issue with the way FEMA characterized its observations. See Section II.M above.
EX 30 1.
Preamble 2.
Reopens old issues 3.
No fundamental flaw In Contention EX 30 Intervenors again cite the response to the Ridge free play message, here to assert that evacuation cannot be implemented and that communica-tion within LERO is inadequate. This isolated incident does not support those sweeping assertions. See Section II.F above.
EX 31 1.
No fundamental flaw EX 31 alleges that monitoring took 4-5 minutes rather than the 90 seconds stated in the Plan. This does not allege a " fundamental flaw." At worst it is a matter of addi-tional training or of supplying a larger number of monitoring personnel. See Section II.I above.
-120-1 EX 32 1.
Reopens old issues 2.
Not based on exercise 3.
No fundamental flaw 4.
Redundant of EX 22.K EX 32 alleges, once again, that congregate care centers are not available. This is another attempt to reopen the already litigated issue of the availability of congregate care centers. It is not based on the exercise, but on the unwillingness of some facility owners to have their facilities included in the Plan. And it is not a " fundamental flaw" because the NRC Staff has already been ordered to verify that the Red Cross has up-to-date agreements for congregate care centers.
EX 33 1.
Reopens old issues 4
2.
No fundamental flaw 3.
Phase I Contention EX 33 says that LILCO did not notify government simulators within j
15 minutes af ter declaring an emergency and failed to demonstrate timely notification of Nassau County and Connecticut. It is objectionable because it attempts to resurrect j
an issue that has already been litigated. The basic premise of the contention "that l
LILCO is incapable of providing prompt notification to state and local governmental 4
agencies within 15 minutes af ter declaring an emergency, as required by 10 CFR Part 50 Appendix C, Section IV.D.3," was decided already. The Board found that the "first
[15 minute notification requirement] requires a licensee to transmit notice of an cmergency at the plant to offsite authorities within 15 minutes af ter the emergency is recognized. The second requires offsite authorities to make a prompt public notifica-tion decision and to have the capability to carry out the decision within 15 minutes of their receipt of notification of emergency at the plant." PID,21 NRC at 708. Conten-tion EX 33 raises the issue of the first 15-minute notification requirement, which runs from the declaration of an emergency at the plant to notification of offsite authorities.
As the Board recognized:
4
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e
-121-
)
i In this unique case, State and local officials are not J
the offsite authorities who will receive the initial notifica-tion from the Shoreham control room, since New York State and Suffolk County are not participating in emergency plan-ning. Instead, LILCO plans for that notification to be re-ceived at its Customer Service Office in Hicksville, New York.... The County concedes that the initial notification message can feasibly be transmitted within 15 minutes. Tr.
4665 (Snow). The Board finds that the initial notification from the plant to the Customer Service Office at Hicksville is complete at the time that the office receives notification from the plant.
PID,21 NRC at 708-09 (1985), aff'd as to this issue, ALAB-832,23 NRC 135 (1986).
Contention EX 33 is inadmissible, also, because it does not allege a " fundamental flaw." There is nothing " fundamental" in the fact that government simulators were not notified within 15 minutes after declaring an emergency, since there is no evidence that this had any adverse effect on the simulated emergency response at all. Moreover, both New York State and Suffolk County have access to the RECS line, which is the same dedicated telephone line used to provide initia1 notification to the LILCO Custom-cr Service Operator. The adequacy of the first channel of communications from the utility to the government was a " Phase I" issue and is not appropriate for litigation now.
EX 34 1.
No fundamental flaw 2.
Reopens old issues 3.
Redundant of EX 16.E First, backup notification for the siren system is not required; thus, the speed with which this nonessential backup notification is accomplished does not raise a funda-mental flaw. Contrary to statements in Contention EX 34, the regulations and guidance cited do not apply to backup notification methods, but only to initial prompt notifica-tion, which FEMA in the exercise and the Board in Phase II found could be completed within about 15 minutes. If backup procedures are provided, no time limit need be met.
PID,21 NRC at 759: see also Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit No.1), LBP-84-26,20 NRC 53,67 (1984).
-122-Second, Intervenors are barred by the decision in Phase II (PID, 21 NRC at 758-759) from litigating the issue of how long backup notification may take.
EX 35 1.
No fundamental flaw 2.
Reopens old issues Apart from the above objections to Contention EX 35, which are discussed in de-tail in Section II.O above, the following words in the third sentence:
which contemplate that command and control decisions, including protective action recommendations, will be made by officials of State and local governments, and not by the licensee plus the citation to LBP-85-12 that ends the first paragraph (p. 89), are independently objectionable for a different reason. To the extent that Intervenors mean by the words quoted above to raise the issue of " conflict of interest" (EP Contention 11), that issue, as established by their own citation to LBP-85-12, is on appeal and therefore is outside the scope of this litigation.
EX 36 1.
No fundamental flaw As discussed above, in Section II.0, Intervenors' challenge in EX 36 to dose as-sessment does not postulate a fundamental flaw in the Plan.
EX 37 1.
No fundamental flaw 2.
Challenges the scenario / FEMA review 3.
Lack of basis The burden of Contention EX 37 is that the fact that LERO players did not, dur-ing the February 13 exercise, undertake ingestion pathway activities beyond those nec-essary to protect dairy animals in the 10-mile EPZ constitutes a failure to comply with various procedures and regulations, and demonstrates a fundamental flaw in the
-123-Shoreham Plan. Neither the logic nor the conclusion of the assertion follow. As is noted in more detail in Section II.G above, the scenario for the Shoreham exercise was approved by FEMA, an expert agency with jurisdiction over emergency planning mat-ters. It simply did not contemplate 50-mile ingestion pathway activities; indeed, the protection of dairy animals within the 10-mile EPZ is merely an automatic artifact of early inhalation-exposure pathway (10-mile) EPZ protective actions. Thus the conten-tion merely amounts to a complaint, without any stated basis, about the scenario ap-proved by FEMA. All of the " failures" complained of - respecting protection of the milk pathway beyond 10 miles (EX 37.A), animals other than dairy animals within 10 miles (EX 37.B), and other food chain items (EX 37.C)- merely follow from the defined scope of the exercise. The omission of ingestion pathway activities during the exercise is consistent with other one-day FEMA emergency planning exercises in FEMA Region II and elsewhere, and with NRC and FEMA regulations. Finally, to the extent that state-level preparedness for ingestion pathway activities would be contemplated by any ingestion pathway activities, New York State (with five operating nuclear power plants) and Connecticut (with four) already have multiple opportunities to develop their facility with the relatively long-term, essentially generic, non-site specific efforts as-sociated with the ingestion pathway; and NRC and FEMA regulations require participa-tion by affected states in ingestion pathway activities for any given site only once cvery five years. The degree of preparedness implicit in this requirement is easily satisfied by New York State's and Connecticut's involvement with other plants. Thus there is no basis laid for an assertion of a fundamental flaw in the Shoreham emergency plan from the absence of ingestion-pathway activities from the February 13 exercise scenario.
4
-124-snn No objection except 1.
Parts A and O are Phase I 2.
Part K reopens old issues and does not allege a fundamental flaw As notad above (see Section II.D), LILCO does not object to the admission of this contention to the extent that the enumerated items collectively allege a problem in transmitting timely and accurate information to the press at the ENC. LILCO does otr ject to the admission of subparts A and 0, on the grounds that they involve the onsite staff at the ENC and are hence foreclosed by Intervenors' earlier default on onsite is-sues. Subpart A is an onsite contention because prior to the ENC being declared opera-tional it is the responsibility of the onsite organization to transmit the appropriate in-formation to the press. Subpart O relates to onsite operations because it discusses the release of LILCO Press Releases - releases issued by the onsite organization. Finally, LILCO objects to the admission of Subpart K on the grounds that the identity of congre-gate care centers is not supposed to be released to the public, in order to keep the pub-lic from bypassing monitoring and decontamination. This was the subject of earlier liti-l gation in EP Contentions 24.0, 74, and 75. Thus, Subpart K is an improper attempt to reopen a settied issue.
EX 39 I
1.
No fundamental flaw i
As noted above (see Section II.D), the proposed contention concerns a
)
nonessential function and, hence, does not raise a fundmental flaw meriting litigation.
1 EX 40 1.
Reopens old issues 2.
Lack of basis in addition to being subject to the generic objection to Intervenors' use of i
... -.. ~
-125-preambles (see Section I.J above), the preface to Contention EX 40 is further flawed because it proceeds from the improper assumption that the LILCO Plan contemplates that traffic guides will be at their posts at approximately the time a recommendation to evacuate is given (see Section II.N). Thus, the contention lacks basis and seeks to re-open a previously settled issue. Accordingly, it should be denied admission.
EX. 40.A 1.
Lack of basis As discussed in Section II.N above, the factual comparisons offered in this subpart are inapt for demonstrating that mobilization of traffic guides was untimely.
Consequently, the contention lacks basis and should be denied admission.
EX 40.B No objection, with a qualification.
LILCO does not object to the admission of this contention. But LILCO believes it is admissible only to the extent that it alleges that some traffic posts were not manned within one hour of the appropriate evacuation recommendation (see Section II.N above).
EX 40.C 1.
Reopens old issues 2.
Not based on exercise / lack of basis 3.
Challenges the scenario / FEMA review 4.
Redundant of EX 22.F, 40.D, 41.C. 43.B, 44, 49.C 1
The contention lacks basis. In addition, as discussed in Section II.N above, Inter-venors could have raised this issue long ago without reference to any exercise. Finally, the EBS message was true; the sample EBS message in OP!P 3.8.2 says that " Trained traffic guides will direct you along evacuation routes." OPIP 3.8.2 at 41 of 63 (emphasis added); see also Id. at 49 of 63.
l
-126-EX 40.D 1.
Reopens old issues 2.
Not based on exerci.se As discussed in Section II.N, Intervenors seek to relitigate the issue of whether voluntary evacuation from the EPZ will delay the mobilization of LERO workers. Since this issue has already been resolved by the Board, the contention is inadmissible.
EX 40.E No objection.
This subpart does not allege that the exercise revealed a fundamental flaw in the LILCO Plan, but rather seeks to challenge the remedy LILCO has implemented for fur-ther improving the mobilization of LERO traffic guides. Since LILCO has not objected to the admission of Contention EX 40.B, it does not object to the admission of this subpart so long as it is first demonstrated in Contention EX 40.B that a fundamental flaw exists in the LILCO Plan.
EX 41.A 1.
Lack of basis This contention is inadmissible because it falls to allege appropriate factual bases to establish that there is a fundmental flaw in the LILCO Plan's provisions for re-moving obstructions f rom roadways. First, the contention recites a variety of manning levels for road crews following the declaration of a Site Area Emergency. As noted in Section II.N. the facts proffered by Intervenors are irrelevant to determining the time-11 ness of road crew mobilization. Second, the contention presents a series of factual as-sertions about the dispatch times for road crews. However,Intervenors have not estab-lished a linkage between those dispatch times and a_ny road crew's ability to respond in a timely manner to the two impediments. Thus, Intervenors have failed to plead the appropriate f actual chain to demonstrate tbat road crew mobilization makes removal of roadway obstructions impossible. Accordingly, the contention is inadmissible.
l
-127-EX 41.B No objection.
LILCO does not object to the admission of this contention, provided that all the factual aspects of LERO's response to the traffic impediments are explored in this sin-gle contention.
EX 41.C 1.
Not based on exercise 2.
Redundant of EX 22.F, 40.C, 40.D, 43.B, 44, 49.C 3.
Challenges the scenario / FEMA teview 4.
Reopens old issues (mobilization, shadow phenomenon) 5.
No fundamental flaw 6.
Lack of basis EX 41.C does not raise issues related to the February 13 exercise. Instead, the contention essentially seeks to argue that road crews should be mobilized and in place well in advance of the declaration of a Site Area Emergency. As such, it attempts to raise issues that should have been litigated in earlier proceedings as part of EP Conten-tion 27. See Section II.N above.
EX 41.D 1.
Reopens old issues 2.
Redundant of EX 40.D,43 (preface)
As discussed in Section II.N, the Licensing Board has already found that early spontaneous evacuation is unlikely to have any significant effect on mobilization. 21 NRC at 721, 725. This contention, like EX 40.D and 43, merely attempts to reclamor this issue.
EX 41.E No objection.
i
-128-Assuming Intervenors are able to demonstrate that LERO's response to the traf-fic impediment revealed a fundamental flaw in the LILCO Plan in Contention EX 41.B, then LILCO does not object to the admission of EX 41.E, since it relates to the remedy for that flaw.
EX 42 i
1.
No fundamental flaw 2.
Lack of basis
- 3.
Reopens old issues Contention EX 42 as a whole presumes that which must be established by its subparts: that there exists within LERO an organizational dysfunction that prevents it from reacting successfully to unexpected events. To the extent - which is major -
that those incidents cited in its subparts as illustrative of this alleged organizational dysfunction are themselves trivial, their agglomeration does not establish the conten-tion's major proposition. Thus this contention should not be admitted unless and untilit has been established that its potentially significant subparts individually disclose " fun-damental flaws" in the Shoreham Plan.
Moreover, the contention's suggestion that the number and variety of surprise Gvents would be substantially greater and presumably more difficult to accommodate in a real emergency than in the February 13 exercise is without stated basis, and as it re-lates to the conduct of an evacuation, it inherently attempts to reopen traffic issues al-ready decided by the Licensing Board in the PID. Finally, the suggestion that the num-i ber of surprise events in the exercise correlates with the scenario's authorship it is totally irrelevant and without stated basis in the contention. The prefatory language of Contention 42 should be rejected as a whole and the admissibility of the subparts of the contention considered in terms of the " fundamental flaw" and other basic pleading 1
groundrules of this proceeding.
l i
-129-EX 42.A 1.
Lack of basis 2.
Redundant of EX 41.B Contention EX 42.A inaccurately attempts to link the FEMA Report with Inter-venors' allegations; nowhere does the FEMA Report state that LERO was unable to deal with unexpected situations. The reference to the FEMA Report should be stricken as without basis. To the extent LERO's response to the two roadway impuliments raises a valid contention, they are considered in connection with Contention EX 41.B the ad-mission of which LILCO has not objected. This redundant contention should not be ad-mitted. See Section II.M above.
EX 42.B 1.
Lack of basis 2.
No fundamental flaw 3.
Redundant of Contentions EX 20.G,21.C,30, and 45.B Contention EX 42.B should not be admitted. The allegation of this contention is that LILCO's response to a free play request for a school bus to evacuate 40 school chil-dren from the Ridge Elementary School was unacceptably delayed and shows an inca-pacity to deal with surprise situations. The facts pleaded for the allegation do not dis-close a fundamental flaw, are without basis, and are redundant of four other contentions. As is explained in more detail in Section II.F above, the contention does not disclose a fundamental flaw. LERO is not the primary transportation mechanism for evacuation of school children; theh customary transportation arrangements are.
The request to LERO was merely for backup. Second, the timing of the evacuation from the Ridge School was such that even accepting as true the alleged three-hour delay in the bus's arrival there, the children would have been loaded onto it and out of the EPZ before the end of the normal evacuation time (approximately five hours) -
i.e., within the time frame for the rest of the acceptable protective actions for the
-130-general public. Finally, it is simply not the case that the bus did not arrive at the Coll-seum; while recordkeeping at the Coliseum did not distinguish that bus from remaining general population buses, other documentation indicates that the bus did arrive at the Coliseum upon timely completion of its evacuation route.
EX 42.C 1.
Lack of basis 2.
No fundamental flaw 4.
Redundant of EX 39 This contention should not be admitted. Neither the FEMA Report nor the facts in Contention EX 39 provide a factual basis for this contention's allegation that rumor control staff are incapable of responding to unexpected situations: both the FEMA Re-port and Contention EX 39 concern only the delay of transmitting information to rumor control. This contention is merely a shorthand attempt to piggyback onto matters -
themselves not rising to the level of " fundamental flaws" - raised directly in Conten-tion 39. Whatever substance there is to the allegation is made in EX 39. Thus Conten-tion EX 42.C should be rejected as duplicative of EX 39 and is also subject to the same objections as EX 39. See Section II.D above.
EX 42.D 1.
No fundamental flaw 2.
Reopens old issues 3.
Redundant of EX 21.E This contention should be dismissed as not raising a fundamental flaw. First, the ability of the traffic guides to inform persons in the EPZ about the location of the re-ception center is not part of the emergency plan. As was also explained in the re-sponse to Contention EX 21.E. the primary function of traffic guides is to facilitate the movement of traffic at intersections, not to converse with evacuees. Evacuees will have public education materials that include this information as well as EBS messages.
-131-Second, the allegation about traffic guides' not being aware of PAG exposure limits and the chain of command for exceeding them sets out only a half-truth whose basis as a
" fundamental flaw" is undemonstrated in the contention and is refuted as a potentially systemic problem by FEMA's own Post-Exercise Assessment. As is stated in the FEMA Report at 29, "most of the emergency workers evaluated were aware of the chain of command for authorization of exposure in access of the general public PAGs, as well as the fact that this would be an additional voluntary act." See Section II.M above.
EX 42.E 1.
No fundamental flaw 2.
Redundant of EX 21.B This contention is objectionable because it does not establish a fundamental flaw. The contention takes out of context statements in the FEMA Report and thereby 1
attempts to allege a programmatic failure of the training program by identifying some instances where bus drivers failed to carry out the full extent of their responsibilities.
This information must be examined in the context of all bus drivers evaluated. It is true that, of the four bus drivers evaluated at the Patchogue staging area, one per-formed as expected while the performance of the other three was deficient (FEMA Re-port at 64-65). Ilowever, all four other bus drivers randomly selected by FEMA were found to be well trained and able to follow their procedures (FEMA Report at 58,74).
Thus, the FEMA Report demonstrates that while there were a few similar instances of bus drivers not fully performing their jobs under the Plan, there was no pervasive pat-I torn of problems. In addition, the contention is redundant of Contention EX 21.B. See i
Section !!.L above.
EX 42 F 1.
Redundant of EX 40.A. 41.A,43 2.
Lack of basis
-132-3.
Not based on exercise 4.
Reopens old lasues (EBS messages)
This contention should be rejected in its entirety for the reasons listed above, which are explained more fully in the discussion of mobilization contentions in Section II.N.
EX 42.0 1.
Lack of basis 2.
Redundant of EX 38 3.
No fundamental flaw Contention 42.G should be dismissed as without basis. The contention alleges summarily that ENC personnel were unable to deal with surprise events, but the facts incorporated from Contention EX 38 concern only the availability of timely and accurate information at the ENC.
Whatever issues in Contention EX 42.G may conceivably tend to demonstrate a " fundamental flaw" in the Plan can be litigated in the context of Contention EX 38 (to most of which LILCO has not objected).
EX 43 1.
Lack of basis 2.
Reopens old issues 3.
Redundant of EX 40.D. 41.D As discussed in Section II.N above, the factual comparisons offered in this subpart are inapt for demonstrating that mobilization of bus drivers was untimely.
Consequently, the contention lacks basis and should be denied admission. In addition, to the extent the penultimate paragraph seeks to reittigate the issue of whether voluntary evacuation from the EPZ will delay the mobilization of LERO workers, the contention is inadmissible as a rehash of EP Contention 27 (see Section II.N), and redundant of Contentions EX 40.D and 41.D.
-133-EX 43.A 1.
Reopens old issue 2.
Not based on exercise As discussed in Section II.N, Intervenors could have challenged the content of EBS messages in prior litigation. Their failure to do so prevents them from doing so now.
EX 43.B 1.
Reopens old issues 2.
Not based on exercise 3.
Challenges the scenario / FEMA review 4.
Redundant of EX 22.F 40.C,40.D 41.C, 44,49.C 5.
Lack of basis Here again Intervenors challenge the scenario based upon shadow phenomenon assumptions previously litigated. For the reasons discussed in Section II.P. this conten-tion is inadmissible.
EX 44 1.
Reopens old issues (shadow phenomenon) 2.
Not based on exercise / lack of basis 3.
Challenges the scenario / FEMA review In Contention EX 44, Intervenors attempt to relitigate the so-called " shadow phenomenon" by alleging without basis that the exercise (1) demonstrated LILCO's in-ability to communicate clearly to the public and (2) was flawed because the shadow phenomenon was not assumed to be a problem. As discussed in Section II.P above, In-tervenors litigated. extensively the way that the shadow phenomenon is taken into ac-count in tLe LILCO Plan. They mercly attempt to revisit those issues by quarreling with assumptions approved by the Board. Nor do they allege any exercise response to support their contention.
The six subparts of EX 44 (A-F) are said to be " examples" of elements of the Plan that would te affected by the shadow phenomenon. Subpart A refers to virtually every
-134-feature of the evacuation plan (vehicles, routes, bus drivers, traffic guides, e_tc.); B, C, and F refer to relocation centers; C addresses as well the staging areas and EOC; D ad-dresses public notification and information (including EBS messages); and E addresses notification and mobilization of emergency workers. Moreover, EX 44 incorporates by reference Contentions EX 38,39,40.C and D,42.D,43.A, and 45, and raises the issue of LERO's ability to " expand its response on an ad hoc basis," which is part of another issue, now on remand but held in abeyance, as to whether the ten-mile EPZ should be cxpanded.
In short, Contention EX 47 apparently seeks to relitigate not only the shadow phenomenon, but just about every other major issue that was litigated in the original Cmergency planning hearings. Like Contention EX 50, EX 44 is a grab-bag contention that incorporates within itself virtually all the issues that have already been resolved.
EX 45 1.
Redundant of EX 50.C 2.
Lack of basis 3.
Lack of specificity 4.
No fundamental flaw Contention EX 45 is redundant in its entirety with other contentions. To the ex-tent that it may deal with potentially valid concerns, they are already raised by other contentions, as is illustrated below. LILCO opposes its admission in its entirety (with the !!mited exception of incorporation of facts relating to the treatment of impedi-ments contained in subpart 45.A. as described in and limited by the discussion in Section ll.M above).
EX 45.A 1.
Lack of basis 2.
Redundant of EX 41.8 LILCO does not object to the incorporation of specific factual information
-135-dealing with the handling of roadway impediments into Contention EX 41.B, as dis-cussed in Section II.M above. LILCO does object to the introduction of this contention for any other purpose. LILCO moves in any event to strike the second sentence of EX 45.A as without basis. Nothing in the FEMA Report or in the Phase II record, in which traffic and the probability of traffic impediments were exhaustively litigated, indicates that impediments similar to the ones in the February 13 exercise "would occur in sub-stantial numbers."
EX 45.B 1.
Lack of basis 2.
Redundant of EX 20.G,21.C,30 l
3.
No fundamental flaw The allegation of this contention is that LERO's response to a free play request for a school bus to evacuate 40 school children from the Ridge Elementary School was unacceptably delayed and shows an incapacity to communicate adequately. To the ex-tent that the contention fairly raises an issue, it is the ability of LERO personnel to I
mobilize and dispatch bus drivers, not the ability to obtain and communicate informa-tion (see FEMA Report at 38,66). Even as to the proper issue, the facts pleaded for the allegation do not disclose a fundamental flaw, are without basis, and are redundant of four other contentions.
As is explained in more detail in Section II.F above, the contention does not dis-d close a fundamental flaw. LERO is not the primary transportation mechanism for evacuation of school children; their customary transportation arrangements are, and the request to LERO was merely for backup. Second, the timing of the evacuation from the Ridge School was such that even accepting as valid the alleged three-hour i
delay in the bus's arrival there, the children would have been loaded onto it and been out of the EPZ before the end of the normal evacuation time (approximately five hours)
-i.e., within the time frame for the rest of the acceptable protective actions for the I
I 1
1
._,.m.,___._,_._,._._..__..__m
_ _ _ _ _ _ _ _ _ _.., _.. _ -. _ ~ _ _, _ -. _ _.
-136-general public. Finally, it is simply not the case.that the bus did not arrive at the Coll-seum; while recordkeeping at the Coliseum did not distinguish that bus from remaining general population buses, other dccumentation indicates that the bus did arrive at the Coliseum upon timely completion of its evacuation route.
EX 45.C 1.
No fundamental flaw Contention 45.C does not raise a fundamental flaw. Any problem raised by the failure to notify FAA and the LIRR during' the exercise is minor and readily correctable (see SNRC-1269 Letter, Enclosure 1 at 2).
EX 45.D 1.
No fundamental flaw The issue raised by EX 45.D does not constitute a fundamental flaw and is readily correctable. First, the problem with the EPZ Dose Assessment Status Board's f ailure to distinguish between DOE-RAP monitoring data and LILCO field monitoring data can be readily remedied by changing the Dose Assessment Board (FEMA Report at 29-30).
LILCO has agreed to that change (see SNRC-1269, Enclosure 1, at 2).
Second, the contention raises two instances in which field data were incorrectly reported at the EOC. In one instance the error was corrected within five minutes, while the other took two and one-half hours to identify and correct. These two in-stances neither individually nor collectively show a fundamental flaw in the LILCO Plan. The fact that two instances of incorrect reporting were noted (out of literally hundreds of reports made) does not establish a pattern of reporting problems. Further, LILCO has agreed to review LERO and DOE practices concerning the transmission of field data to ensure better coordination and accurate recording and use of field data (see SNRC-1269 Enclosure 1, at 3).
l l
-137-EX 45.E 1.
No fundamental flaw 2.
Lack of basis Contention EX 45.E raises essentially two issues, neither of which shows a funda-mental flaw in the Plan: first, that the LERO Director occasionally lef t the command j
room and was not available to take calls over the dedicated phone in the EOF and that, in his absence, the secretary did not take a written message and communicate the in-formation to him immediately; and second, that the EOC command room did not have status boards. Both of these problems are minor and readily correctable. Indeed, the FEMA evaluators did not list these items as deficiencies or even ARCAs, but only as areas recommended for improvement. Moreover, the contention lacks basis for the statement that these failures "substantially impair the ability of command personnel to perform their duties."
EX 45.F 1.
Redundant of EX 38 and 39 2.
No fundamental flaw To the extent that this contention raises potentially litigable issues, it is redun-dant of Contention EX 38; in other respects it is redundant of Contention EX 39 and, like that contention, is inadmissible as failing to raise a fundamental flaw.
Ex 45.G 1.
No fundamental flaw 2.
Lack of basis 3.
Statement that "more traffic guides would be attempting to make radio communications" lacks basis 4.
Reopens old issues LILCO objects to Contention 45.G on the ground that all of the incidents listed there are dissimilar events and do not establish any pattern of problems that would in-dicate a fundamental flaw in the training program. Indeed, not one of the instances
-138-listed as supporting the allegations of Contention 45.G indicates a fundamental flaw in the Plan or was considered to be a deficiency by FEMA.
In addition, LILCO objects to Contention EX 45.G(1) as lacking basis, mischaracterizing the contents of the FEMA Report, and failing to raise a fundamental flaw. The FEMA Report at 56 clearly indicates that there were occasionalinstances of poor reception on the traffic guide radio and that on occasion noisy transmissions inter-fered with the conversations of personnel in the communications room. Both were minor instances; FEMA rated this problem merely as an " area recommended for im-I provement." Intervenors are disingenuous when they characterize communications be-tween the Port Jefferson staging area and traffic guides as " difficult due to poor radio reception" and disrupting "other essential communications."
Also, the statement that "in an actual emergency... many more traffic guides would be attempting to make radio communications with the staging areas involved" is completely without basis. All traffic control points were manned the day of the exer-cise and communicated with the staging area.
Finally, this contention attempts to reopen an issue already litigated, and liti-gated exhaustively. EP Contentions 28-33 and 24.L contested the adequacy of LILCO's proposals for communications among emergency response personnel, and they were re-solved in LILCO's favor. PID,21 NRC at 727-39.
The contention attempts to make something out of nothing. It should be re-jected.
-139-i EX 45.H 1.
No fundamental flaw Contention EX 45 (p.136) asserts generally that LERO and its supporters are "un-able to obtain, identify, process, and transmit essential information and data offec-tively, accurately, appropriately, and on a timely basis." Subpart 45.H alleges that the EOC and staging areas were unable to transmit consistent or accurate information re-garding the availability of assistance from the Suffolk County police department during the exercise. Contention EX 45.H is not admissible because it does not allege a "funda-mental flaw." At most, the contention addresses a minor misunderstanding regarding whether the simulated County had or had not offered to provide police help. Since the LERO traffic guides mobilized (and would always mobilize) whether or not county po-lice were available, the alleged miscommunication had no adverse effect on the simu-lated response at all.
EX 46 1.
Not based on exercise 2.
Reopens old issues EX 46 is based, not on the exercise, but on recent resolutions of the Nassau County Board of Supervisors withdrawing the Coliseum from the LILCO Plan. The con-tention is mainly a vehicle for Intervenors' new theory that the location of the recep-tion center is the linchpin of the entire Plan, an issue that is outside the scope of this narrow proceeding.
EX 47 1.
Redundant of EX 15.K 2.
No fundamental flaw 3.
Not based on exercise 4.
Reopens old issues 5.
Challenges the scenario / FEMA review 6.
Lack of basis
-140-Contention EX 47 alleges that the plans to register, monitor, and decontaminate evacuees of special facilities (like nursing and adult homes), hospitals, and schools are inadequate. It alleges, first, that LILCO failed to demonstrate the ability to register, monitor, and decontaminate these people; second, that the proposalin Revision 7 of the Plan for monitoring these people is inadequate for a variety of reasons detailed in subparts A through E; and third, that registration and monitoring of the various special populations were not actually carried out at the exercise.
This contention is inadmissible, first, because it is a quarrel with the FEMA-approved scenario, and, second, because it is not based on the exercise. Also, it seeks to raise issues about the procedures for registering and monitoring special populations that should have been raised in the hearings two yeats ago.
Finally, Contention EX 47 falls to allege a fundamental flaw in the LILCO Plan.
See Section II.E above. The thrust of the contention is that the exercise failed to test the registering, monitoring, and decontamination of people evacuated from special fa-cilities. But since the procedures for registering, monitoring, and decontamination are the same for these people as for the general public, there is no fundamental flaw.
Subparts A-E of EX 47 allege a series of ways in which LILCO's Revision 7 pro-posal to improve the Plan is, in Intervenors' view, flawed. These complaints are about details of the Plan that by no stretch of the imagination are " fundamental flaws."
EX 48 1.
Reopens old issues 2.
No fundamental flaw 3.
Redundant of EX 15.J Contention EX 48 is inadmissible on the same two grounds identified in Conten-tion EX 15.J above: (1) the contention seeks to raise already settled issues (see Section II.H) and (2) the contention does not identify a " fundamental flaw" in the LILCO Plan.
In addition, this contention is inadmissible as redundant of Contention EX 15.J.
i i
-141-EX 49 Contention EX 49 claims that LERO is incapable of registering and monitoring an adequate number of people. Each of the three subparts of the contention is inadmis-sible for the reasons stated below.
EX 49.A 1.
No fundamental flaw 2.
Redundant of EX 31 EX 49.A says that monitoring one evacuee took up to five minutes during the ex-crcise, instead of the 90 seconds asserted in the Plan. For the reasons given in Section II.I above, this is simply not a fundamental flaw.
EX 49.B 1.
Challenges the scenario 2.
No fundamental flaw EX 49.B says that the alternate monitoring plan to call up additional monitoring personnel from INPO, other power plants, and other entities was not demonstrated dur-ing the exercise. This is simply a challenge to the FEMA-approved scenario. It is not possible, or required, to exercise every feature of a plan at every exercise. Merely al-leging that some feature or other was not tested in a particular exercise therefore does not therefore make an admissible contention. Moreover, a contention addressing an
" alternate" plan designed to be used only in extreme, highly unlikely circumstances does not address anything " fundamental," particularly when all it can allege is that the alter-nate was not tested.
EX 49.C 1.
Reopens old issues (shadow phenomenon) 2.
Redundant of EX 22.F, 40.C, 40.D, 41.C, 43.B. 44, 49.C 3.
Challenges the scenario EX 49.C alleges, citing Contention EX 44, that the large amount of
-142-
" voluntary evacuation" will mean that more people would report for monitoring than r_re expressly advised to do so. This contention is inadmissible because it seeks to re-1 open issues already litigated and now before other forums. In particular, it attempts to raise the " shadow phenomenon" issues and the issue of the number of people that might come to the reception center for monitoring but not for shelter, which is now before the Appeal Board on LILEO's appeal of the Concluding PartialInitial Decision. In addi-tion, it is a challenge to the scenario, and it is redundant to the other " shadow phenom-enon" contentions.
EX 50 1.
Preamble 2.
Lack of specificity 3.
Lack of basis 4.
No fundamental flaw 5.
Redundant of contentions cited therein Contention EX 50 is a house-of-cards exercise in pleading by reference, with nothing of substance in the contention itself. It should be refused admission in its en-tirety for the reasons set out in Section II.K above. In addition, the preface / preamble should be stricken in its entirety as inadmissible under the law of this case (see Section I).
Further, LILCO objects on a number of grounds to the concept, in the pref-ace / preamble and incorporated in the subparts of the contention, that "each 'deficien-cy' and each 'ARCA' identified by FEMA, plus each additional error committed during the exercise and identified in other contentions" provides a basis for Intervenors' alle-gation that there is a fundamental flaw in the training program. First, not every error, ARCA, or deficiency indicates a training problem. Second, as is discussed in Section I above, ARCAs and lesser errors clearly do not constitute fundamental flaws, and even deficiencies may not not be fundamental flaws.W In reviewing the admissibility of 35/
FEMA defines "ARCA" as a demonstrated and observed inadequacy which, al-though its correction is required during the next scheduled biennial exercise, is not con-sidered by itself to adversely impact public health and safety. Guidance Memorandum EX-1, at 1.
-143-this contention the Board should keep in mind FEMA's assessment of the exercise and not become involved in simply counting the examples of training failures relied on by the Interve9rs. See M PID, LBP-83-57,18 NRC 445,579 (1983). Indeed, the overall l
l success of the FEMA exercise is a testament to the fact that, as a whole, the training program was successful in training LERO members to perform jobs ranging from the Director of Local Response to traffic guide.
Finally, LILCO objects to pleading by reference to lists of other contentions and FEMA findings, on the ground that it does not provide adequate specificity and basis.
Where the subparts of Contention EX 50 are redundant and derivative of other conten-tions which treat an alleged problem more directly, Contention EX 50 should automat-ically be struck pending establishment that the matter raised in the other contention does indeed constitute a " fundamental flaw."
EX 50.A 1.
Redundant of EX 38,39,41,42 2.
No fundamental flaw 3.
Lack of basis First, Contention EX 50.A is redundant of EX 38, 39, 41, and 42. Second, the contention is objectionable as lacking in specificity and basis. As this Board recently noted, "the intervenor has the burden of presenting contentions with adequate specif-icity." Memorandum and Order (Objections to Prehearing Conference Order), Docket No. 50-322-OL-5, ASLBP 86-533-01-OL, slip op. at 6 (August 1,1986). Here Intervenors have not alleged defects that would demonstrate that the training program is flawed conceptually. Moreover, a number of the ARCAs cited bear no relationship to the training program; for example, EOC ARCA 9 deals with the fact that only the Shoreham-Wading River School district participated in the February 13 exercise. Simi-larily, PSA ARCA 8 recommended that more detailed maps and clearer descriptions of pick-up points for the non-institutionalized, mobility-impaired be provided to drivers.
-144-EX 50.B 1.
Lack of specificity 2.
Lack of basis 3.
Redundant of EX 33, 35-39, 41, 42, 45 The contention lacks specificity and basis and is derivative and redundant. Here Intervenors baldly allege that LILCO's training program has been ineffective in training LERO personnel to follow and implement the Plan and procedures and cite a grab-bag of contentions, deficiencies, and ARCAs as supporting that conclusion. The FEMA Re-port provides no basis for the contention that LILCO personnellacked the basic knowl-edge and information to implement the Plan and procedures or that LERO personnel, overall, failed to follow and implement the Plan and procedures. To the contrary, the conclusion most readily drawn from the FEMA Report is that, overall, LERO personnel adequately implemented the LILCO Plan and Procedures. In addition, LILCO notes that a number of the ARCAs cited do not even relate to training and, therefore, do not pro-vide a basis for the contention. For example, EOC ARCA 2 concerns the need to notify the LIRR, and EOC ARCA 7 concerns the fact that LILCO decided not to activate the siren system.
EX 50.C 1.
Redundant of EX 34-39, 41, 42, 45 2.
Lack of specificity 3.
Lack of basis 4.
No fundamental flaw First, Contention EX 50.C is redundant and derivative of numerous other listed contentions. Second, the contention lacks specificity and basis. Intervenors do not al-lege facts in support of their allegation but merely cross-reference other contentions, deficiencies, and ARCAs. As stated before,Intervenors bear the burden of draf ting the contentions with adequate specificity and must allege a systematic problem or pattern I
of defects, rather than merely a group of isolated and independent problems. Here
= - - _
-145-l again the ARCAs and deficiencies individually do not constitute fundamental flaws, and many do not appear to be related at all to the training program. For example, EOC ARCA 9 states that only the Shoreham-Wading River School District participated in the exercise.
EX 50.D 1.
Redundant of EX 41,42,45 2.
Lack of basis 3.
Lack of specificity First, this contention is purely redundant and derivative of other listed conten-tions (EX 41, 42, 45). Second, the contention lacks basis and specificity. Intervenors' references to other contentions and to deficiencies in the FEMA Report do not meet In-tervenors' burden of presenting the contention with adequate specificity. Moreover, the individual references to deficiencies and ARCAs do not support the contention. For example, PJSA ARCA 1, which states that one bus driver neglected to read his DRD during the seventy-five minutes he was in the EPZ, is totally unrelated to the training of LERO personnel to follow directions given by superiors during an emergency.
EX 50.E 1.
Redundant of EX 34-43, 45 2.
Lack of specificity 3.
Lack of basis First, this contention is purely redundant and derivative of numerous other listed contentions. Second, for the reasons described in the objections to Contentions EX 50.A through 50.D, the contention lacks specificity and basis. Even the individual FEMA conclusions cited are not supportive. For example, EOC ARCA 2 concerns the need for procedures for notifying the LIRR in the Plan. Riverhead ARCA 1 addresses the need to post the time of new information on status boards.
-146-EX 50.F 1.
Redundant of EX 37, 38, 40.C, 43.A 2.
Lack of basis 3.
Lack of specificity First, the contention is redundant and derivative of numerous contentions. Sec-ond, Contention EX S0.F lacks basis and specificity on the grounds set forth with re-spect to the other subparts of Contention EX 50. Further, numerous references to the FEMA Report do not even support the contention: ENC D 1 concerns the insufficient copying capabilities at the ENC, and ENC ARCA 2 concerns the insufficiency of maps and displays in the media room. These equipment problems bear no relationship to v hether LERO personnel were effectively trained.
EX 50.G 1.
Redundant of EX 27,28 2.
Lack of basis 3.
Lack of specificity First, Contention EX 50.G is purely redundant and derivative of Contentions EX 27 and 28. Second, Contention EX 50.G lacks specificity and basis on the grounds de-scribed in previous objections to other subparts of Contention EX 50.
EX 50.H 1.
Redundant of EX 42,45 2.
Lack of basis 3.
Lack of specificity 4.
No fundamental flaw First, the contention is redundant and derivative of Contentions EX 42 and 45.
Second, it lacks basis and specificity for the reasons discussed in the other sub parts of-Contention EX 50. Third, the second sentence is objectionable on another level as com-pletely lacking in basis. Nothing in the exercise tends to show the existence of the as-serted problem, and Intervenors give no reasonable explanation or plausible authority for the factual assertions. Fourth, Contention EX 50.H does not raise a fundamental f
-147-flaw. Here, the FEMA Report contradicts Intervenors' allegation that there is a funda-mental flaw in the LERO training program in the area of dosimetry, exposure control, KI, and related areas. At page 68, the Report states that most of the emergency workers evaluated... demonstrated knowledge and use of dosimetry and actions required in re-sponse to certain readings as called for in OPIP 3.9.1. How-ever, there were exceptions.... Most of the emergency workers evaluated were aware of the chain of command for authorization of exposure in excess of the general public PAGs as well as the fact that this would be an additional voluntary act. (See also FEMA Report at 59,45,76-77).
EX 50.I 1.
No fundamental flaw LILCO objects to this contention as failing to allege a fundamental flaw in the Plan as revealed by the exercise. As discussed in detail in Section I, Intervenors' at-tacks on LILCO's commitment to improve some of the specific functions complained about inherently fall to raise fundamental flaws.
4 s
-148-IV. NO OBJECTIONS LILCO does not object to EX 38 (other than A O, and K)(to the extent that the enu-merated problems involve communications of the offsite organization (LERO) and collectively disclose a systemic problem in the dissemination of informa-tion)
EX 40.B. 40.E (to the extent mobilization times exceeded those specified in the PID)
EX 41.B, 41.E (with the additions noted in Section II.M above).
V. CONCLUSION For the reasons stated above, LILCO requests that the Board admit only those Gxercise contentions listed in Section IV above.
itespecttuuy sucmitted, s
DonaTd P. Irwin James N. Christman Lee B. Zeugin Kathy E.B. McCleskey Jessine A. Monaghan Scott D. Matchett Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: August 15, 1986 4
LILCO, August 15, 1986 i
CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-5 I hereby certify that copies of LILCO'S OBJECTIONS TO INTERVENORS'"EMER-GENCY PLANNING CONTENTIONS RELATING TO THE FEBRUARY 13,1986 EXER-CISE" were served this date upon the following by hand before noon as indicated by an asterisk, by Federal Express as indicated by two asterisks, or ty first-c. lass mail, post-age prepaid.
Morton B. Margulies,
- r Chairman Ator.ic Salaty and th:ensing Atomic Safety and Licensing A ppeal Board Panel Board G.S. Nucicar Regulatory U.S. Nuclear Regulatory Commission Commission WE,stricgton, D.C. 20555 East-West Towers, Rm. 407 4350 East-West Hwy.
Atcmic Safet'l and Licensing Bethesda, MD 20814 Board Panel U.S. Nuclear Regulatory Dr. Jerry R. Kline
- Commission Atomic Safety and Licensing Washington, D.C. 20555 Board U.S. Nuclear Regulatory Barnard M.13ordenick, Esq.
- Commission Creste Russ Pirfo. Esq.
East-West Towers, Rm. 427 Edwin J. Reis, Esq.
4350 East-West Hwy.
U.1 Nuclear Regulatory Bethesda, MD 20814 Commission 7735 Old Georgetown Road Mr. Frederick J. Shon *
(to mailroom)
Atomic Safety and Licensing Bethesda, MD 208:4 Board U.S. Nuclear Regulatory Herbert H. Brown, Esq.
- Commission Lawrence Coe Lanpher, Esq.
East-West Towers, Rm. 430 Karla J. Letsche, Esq.
4350 East-West Hwy.
Kirkpatrick & Lockhart Bethesda, MD 20814 Eighth Floor 1900 M Street, N.W.
Secretary of the Commission Washington, D.C. 20036 Attention Docketing and Service Section Fabian G. Palomino, Esq. **
U.S. Nuclear Regulatory Special Counsel to the Commission Governor 1717 H Street, N.W.
Executive Chamber Washington, D.C. 20555 Room 229 State Capitol Albany, New York 12224 l
1
4 Albany, New York 12223 William E. Cumming, Esq.
Marj Gundrum, Esq.
Associate General Counsel As.sistant Attorney General Federal Emergency Management 2 World Trade Center Agency Room 4614 500 C Street, S.W.
New York, New York 10047 Room 840 Washington, D.C. 20472 Spence W. Perry, Esq.
- General Counsel Ms. Nora Bredes Federal Emergency Executive Coordinator
~ Management Agency Shoreham Opponents' Coalition 501 C Street, S.W., Room 840 195 East Main Street Washington, D.C. 20472 Smithtown, New York 11787 Mr. Jay Dunkleberger Gerald C. Crotty, Esq.
New York State Energy Office Counsel to the Governor Agency Building 2 Executive Chamber Empire State Plaza State Capitol Albany, New York 12223 Albany, New York 12224 Stewart M. Glass, Esq. **
Martin Bradley Ashare, Esq. **
Regional Counsel Eugene R. Kelly, Esq.
Federal Emergency Management Suffolk County Attorney Agency H. Lee Dennison Building 26 Federal Plaza, Room 1349 Veterans Memorial Highway New York, New York 10278 Hauppauge, New York 11787 Stephen B. Latham, Esq. **
Dr. Monroe Schneider Twomey, Latham & Shea North Shore Committee 33 West Second Street P.O. Box 231 P.O. Box 298 Wading River, NY 11792 Riverhead, New York 11901 Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza
}
Donald P. Irwin Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: August 15, 1986