ML20027B238
| ML20027B238 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/13/1982 |
| From: | Mccleskey K HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8209160571 | |
| Download: ML20027B238 (52) | |
Text
, .
00LKETED USNPC 1
12 MP 15 N0:52 1 t LILCO, Septembe{0b '
BRANCH UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 (OL)
)
)
(Shoreham Nuclear Power Station, )
Unit 1) )
LILCO'S REPLY TO SUFFOLK COUNTY'S OBJECTIONS TO LILCO'S MOTION TO COMPEL PRODUCTION OF EMERGENCY PLANNING DOCUMENTS I.
On June 2, 1982, LILCO served on Suffolk County LILCO's first request for production of emergency planning documents; on June 22, 1982, LILCO served its second request. Suffolk County responded to the first request on July 1, 1982, object-ing to many of the requests as irrelevant, as burdensome, or as s ,tg documents protected by intragovernmental privilege.1/
1/ The County filed its response to LILCO's second request on August 4, 1982. Under 10 C.F.R. 2.710 and 2.741(d), the (continued on next page)
$[kh O l
O See "Suffolk County's Response to LILCO's First Request to Suffolk County for Production of Emergency Planning Documents" at 3, 5, 7, 9, and 13. Over these objections, the Board ruled that Suffolk County was to produce "all existing emergency planning documents, whether they related to LILCO's or Suffolk County's planning efforts." Board Order of July 27, 1982 at 23; see Tr. 7404-05. Documents in the County's direct posses-sion were to be produced by July 26, 1982; documents held by consultants were to be produced by August 3, 1982. Tr.
7416-17; July 27 Order at 25.
During the course of production, the County in letters dated August 11, 1982 and August 24, 1982 identified sixty-two documents it was withholding under claims of attorney-client privilege, work product doctrine, and intragovernmental priv-ilege. In response to the August 11 letter, LILCO filed a motion to compel on August 23, 1982, seeking the documents listed in the August 11 letter. LILCO supplemented that motion on August 25, 1982, to include the documents listed in the August 24 letter.2/ Pursuant to the Board's direction, the l
l (continued from previous page)
County had thirty-two days within which to respond. The County's response was out of time.
2/ LILCO received on September 3 a third list of documents being withheld by the County. The Board instructed the County during a September 10 conference call with the par-(continued on next page)
parties discussed each document being withheld. As a result of these discussions, twenty-seven of the sixty-two items were deleted from LILCO's objections. Suffolk County filed a response on August 31, 1982 to LILCO's motion to compel, objecting to production of the remaining documents.3/
The County's August 31 objections to LILCO's motion to compel are addressed below. The legal bases of the privileges claimed by the Countya 're discussed in part II, and are applied in part III to the documents being withheld.4/
(continued from previous page) ties to send this list, along with the documents being withheld, to the Board for possible in camera review.
3/ The Board subsequently asked the County to reexamine the documents to determine whether parts of them could be pro-duced by deleting privileged portions. The County declined to produce any parts of the documents.
4/ LILCO's August 23 motion to compel addressed the timelines of the County's production of documents as well as the documents withheld. At the time the motion to compel was filed, the County had produced documents on July 26, August 5, August 9, August 14, and August 16 (all but the first date are beyond the time limits set by the Board in its July 27 Order), and had refused to set a date certain by which the remaining documents would be produced. The County has now completed its production. However, three items in response to the County's discussion of the time-liness of its production merit mention.
First, Suffolk County states that LILCO was advised that "there was potentially a vast volume of documents that might be construed to fall within LILCO's document requests." For that reason, LILCO offered to inspect the documents on Long Island and to accept aeditional docu-ments on August 6, three days past the last day for pro-(continued on next page)
4 l
l II. l Title 10 C.F.R. 6 2.740(b)(1) defines the scope of dis-covery in NRC proceedings as follows:
I Parties may obtain discovery regarding any !
matter, not privileged, which is relevant to the subject matter involved in the pro-ceeding, whether it relates to the claim or defense of the party seeking discovery or to i
(continued from previous page) ,
duction as set by the Board. LILCO requested several times that the County provide a list of the documents withheld. The list was provided on August 11. By that time, the County had refused several times to inform LILCO as to when it planned to complete document production.
'; LILCO filed its motion to compel using August 11 as the "date of response" under 10 C.F.R. 62.740(f)(1). The County states that LILCO's motion was filed out of time.
! LILCO did not file a motion to compel on August 3 upon the County's refusal to provide the remaining documents (and a list of the documents being withheld) because LILCO was hopeful that the parties would work out the discovery dis-putes without having to resort to filings with the Board.
Second, the County quotes out of context from LILCO's let-i ter of August 5, 1982, regarding narrowing of requests.
! (That letter is attached to LILCO's motion to compel.)
Third, the County suggests that due to the vast amount of material it was required to produce in response to LILCO's requests, it was not possible to produce the documents on time. The County has produced 4,818 pages of emergency planning material in response to LILCO's requests. LILCO provided 4,800 pages of emergency planning material in
- response to the County's requests, as well as thousands of pages of material related to the quality assurance and health and safety issues. The documents were provided by LILCO within t.he time allowed by NRC regulations or as ordered by the Board.
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the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable mat-ter.... It is not ground for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
The NRC rules governing discovery between parties are to be construed liberally. Illinois Power Company (Clinton Power Station, Unit 1), LBP-81-61, 14 NRC 1736 (1981).
[A]n important reason for allowing discovery is to eliminate, insofar as possible, the element of surprise in modern litigation.
The underlying concept is to shorten the actual trial, with its attendant expense and inconvenience for all concerned, while increasing the parties' ability to develop a complete record for decisional purposes . . .
. Stated another way, "[i]n modern adminis-trative and legal practice, pretrial dis-covery is liberally granted to enable the parties to ascertain the facts in complex litigation, refine the issues, and prepare adequately for a more expeditious hearing or trial."
Pennsylvania Power and Light Company and Allegheny Electric Cooperative, Inc. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 322-23 (1980), quoting Pacific Gas and Electric Company (Stanislaus Project), LBP-78-20, 7 NRC 1038, 1040 (1978). The County seeks to avoid producing certain documents by claiming that the attorney-client privilege, the i
work product doctrine or an intragovernmental privilege applies to the documents. These doctrines are addressed in turn below.
Attorney-Client Privilege It appears that the County invokes the attorney-client privilege pursuant to 10 C.F.R. 5 2.740(b)(1) ("[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding").5/
The attorney-client privilege is the oldest of the testimonial privileges, 8 Wigmore, Evidence S 2290 (McNaughton rev. 1961);
its purpose is "to encourage clients to make full disclosure to their attorneys." Fisher v. United States, 425 U.S. 391, 403 (1976). As noted by the County in its objections at 5, a frequently-quoted formulation of the privilege appears in United States v. United Shoe Machinery Corporation, 89 F. Supp.
357, 358-59 (D. Mass. 1950):
The privilege applies only if (1) the asser-ted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) 5/ This rule, like the other NRC rules governing discovery between parties, derives from the Federal Rules of Civil Procedure. Pennsylvania Power and Light Co. and Allegheny Electric Cooperative Inc. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB 613, 12 NRC 317, 322 (1981).
by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or-(ii) legal services or (iii) assistance in some legal proceeding, and not (d).for the purpose of committing a crime or tort; and (e) the privilege has been (a) claimed and (b) not waived by the client.6/
The privileged information must be " essential to the lawyers' performance of legal services." Burlington Industries, Inc. v. Exxon Corp., 65 F.R.D. 26, 40 (D. Md.
1974). "The privilege only protects disclosure of commun-ications; it does not protect disclosure of the underlying facts by those who communicated with the attorney."
Unichn Co. v. United States, 449 U.S. 383, 395 (1981).
While information within the scope of the privilege is rigorously protected, see 8 Wright and Miller, Federal Practice and Procedure S 2017 (1972), all the elements of the privilege must be met to obtain its protection.
Work Product Doctrine The County also seeks to withhold certain docu-ments under the work product doctrine, which a stated in 10 C.F.R. S 2.740(b)(2) as follows:
6/ Wigmore's Treatise provides a similar formulation, pref-aced by the author's warning that the phrasing of the gen-eral principle "so as to represent all its essentials, but only essentials . . . is a matter of some difficulty." 8 Wigmore, Evidence S 2292 (McNaughton rev. 1961).
A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (b)(1) of this section and prepared in anticipation of or for the hearing by or for another party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that I
the party seeking discovery has substantial need of the materials in the preparation of
! this case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the presiding officer shall protect against disclosure of the men-tal impressions, conclusions, opinions, or legal theories of an attorney or other repre-sentative of a party concerning the pro-ceeding.7/
In contrast to the attorney-client privilege, which protects confidences of the client, the work-product doctrine is designed to protect the lawyers' mental impressions and opinions. Under 10 C.F.R. S 2.740(b)(2), two questions must be addressed: (1) whether the document the County seeks to with-hold constitutes " trial preparation materials" and (2) whether LILCO has shown " substantial need of the materials in the prep-aration of [its) case", and that it is " unable without undue hardship to obtain the substantial equivalent of the materials by other means."8/
(
, 7/ The doctrine originated in Hickman v. Taylor, 329 U.S. 495 (1947), and has been codified in the federal discovery rules. See Fed. R. Civ. P. 26(b)(3).
8/ The Appeal Board has recognized that 10 C.F.R. $ 2.740 is patterned after and parallels Rule 26 of the Federal Rules (continued on next page)
Governmental Privilege The County is also withholding documents under a claim of " executive privilege, which is the privilege against disclo-sure of interagency or intra-agency documents containing advi-sory opinions, recommendations, and deliberations." County Objections at 7. The cases cited by the County to support its claim in the main involve the assertion by federal agencies of a statutory exemption under the Freedom of Information Act (FOIA), and therefore are not applicable here. See, e.g.,
Market Committee of the Federal Reserve System v. Merril, 443 U.S. 340, 360 (1979); N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 141, 150 (1975).
Presumably, the County is relying upon the "unless l privileged" language of 10 C.F.R. 5 2.740(b)(1) to argue that the NRC discovery rules incorporate some sort of common-law,
{ non-statutory governmental privilege. But LILCO has not found j
l l (continued from previous page) 1 of Civil Procedure. Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-196, 7 AEC 457, 460 (1974).
Accordingly, the legal authorities in federal court deci-sions involving Rule 26 illuminate, and provide appropri-ate guidelines for interpreting, the discovery standards l set forth in the Commissions's rules. Boston Edison l Company ' Pilgrim Nuclear Generating Stating, Unit 2),
LBP-75-30, 1 NRC 579, 581 (June 6, 1975), cited in Allied-General Nuclear Services (Barnwell Fuel Receiving l
and Storage Station), LBP-77-13, 5 NRC 489,492 (1977).
l
any NRC decisions applying a governmental privilege, and the County has cited none.9/
It is settled that governments enjoy a common-law privilege for writings that include military or diplomatic secrets of state, based upon the potential harm to the public which might result from disclosure of such information. Aaron Burr's Trial, Robertson's Rep. I, 121, 127, 186, 255, II, 536 (1807) (subpoena duces tecum issued by Marshall, C.J., to President Jefferson, stating that nothing before the court indicated it would be contrary to the public interest to pro-duce correspondence between the President and General Wilkinson); Totten v. United States, 92 U.S. 105 (1985) (action by former Union spy for services during Civil War was denied to avoid endangering secrecy of such employments). Some courts, absent a statute, have extended the privilege to other situ-ations where disclosure may be injurious to the public health; others express doubt whether the privilege should be expanded, 9/ The attorney-client privilege and the privilege for ccm-mercial information, as incorpcrated into the NRC dis-covery rules through 10 C.F.k. $ 2.740(b)(1), have been addressed by the Appeal Board. See, e.g., Kansas Gas &
Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-327, 3 NRC 408 (1976). Protection of governmen-tal documents is frequently addressed in NRC proceedings
-- but only in the context of discovery between the NRC and a party, which is governed by special discovery rules.
See 10 C.F.R. $$ 2.720, 2.740a, and 2.790.
given the statutory privileges, standard attorney-client privilege, and work product doctrine which often protect infor-mation sought from governments. Cf. L.ited States v. Leggett &
Platt, Inc., 542 F.2d 655 (6th Cir. 1976); see also 8 Wigmore, Evidence (McNaughton rev. 1961) $ 2378, n. 7.
When the gove:nment is a litigant, it waives any non-statutory privilege covering government materials and is sub-ject to discovery rules. United States v. Proctor and Gamble 1
Co., 356 U.S. 677, 681 (1958); United States v. Cotton Valley Operators Committee, 9 F.R.D. 719 (W.D. La. 1949). The County is participating as a party in this proceeding (not, for ex-ample, as an interested County pursuant to 10 C.F.R. $
2.715(c)). It has therefore waived any privilege that may have applied to its documents.
Even if the Board were to find there exists a govern-mental privilege under 10 C.F.R. $ 2.740(b)(1) of the sort advanced by the County, and that the privilege has not been waived by the County's participation as a party to this pro-ceeding, the County has not demonstrated how the public inter-est would be harmed if the material it is withholding were dis-closed. Additionally, any privilege that may exist is quali-fied; LILCO may obtain the documents by showing need. United States v. Capitol Services, Inc., 89 F.R.D. 578 (1981).
a III.
Each of the documents listed in the County's objections is discussed below.10/
Group I includes the following documents, withheld based on attorney-client and intragovernmental communication privileges:
I.1 A letter from Patricia A. Dempsey, Assistant County Attorney, to Robert C. Meunkle, dated February 3, 1982, regarding use of school buses and school building in case an evacuation is required.
I.2 A letter from Robert C. Meunkle to Patricia Dempsey, dated February 24, 1982, regarding school district participation during a radiological emergency.
I.3 A letter from Robert C. Meunkle to Patricia A.
Dempsey, dated April 30, 1981, regarding legal documents neces-sary to guarantee avaliability of facilities, equipment and services required for an evacation plan.
I.4 A letter from Richard A. Strang, Deputy Commissioner, Department of Transportation, to Patricia Dempsey, dated August 20, 1980, regarding time estimates for evacuation.
l l
l l 10/ The County grouped the documents within each letter by ihe
! privilege it is asserting. (Group I, for example, con-l tains those documents listed in the County's August 11 letter that are being withheld based upon attorney-client and intragovernmental communications privileges; Group VI
, contains documents listed in the County's August 24 letter withheld based on those same privileges.) LILCO has num-bered the documents consecutively (1 through 34) in the l order listed in the County's objections. The group num-bers assigned by the County have been retained as well.
Items 1, 2, and 4 appear to contain facts, not privi-leged communicatons, regarding the County's emergency planning contentions. It does not appear that the information in items 1, 2, and 4 was routed through Ms. Dempsey "for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding." United Shoe, 89 F. Supp. at 359. Therefore, a component of the attorney-client privilege is lacking, and these documents should be provided by the County.
Further, it appears that item 4 is directly responsive to the NRC's July 2, 1980 request for evacuation times. (See the sixth item listed on page four of the County's August 11, 1982 letter.) If item 4 was prepared in response to the NRC's request, it was not held as confidential by the client, and no privilege exists. If Ms. Dempsey sent Mr. Reagan's response to the NRC, any privilege that may exist has been waived.
Finally, it is not clear that Mr. Reagan is properly considered a client within the meaning of the privilege. See Upjohn, 449 U.S. at 390.
As to item 3, to the extent that document contains information as well as requests.for legal advice, the portions covered by the privilege should be blocked out and the remain-der of the document provided, l
l Items 1 through 4 are also claimed under an intragover-nmental communication privilege. The County has not demonstra-
! ted how the public interest would be harmed if these items are disclosed. Therefore, the items should be produced.
i Group II contains the following documents, withheld under the work product doctrine:
II.5 PRC Voorhees' notes on LILCO's emergency plan.
II.6 Memorandum to Dr. Edward P. Radford from Chris McMurray, Counsel to Suffolk County, dated May 25, 1982, regarding Dr. Radford's review of the LILCO plan.
II.7 Comments on the Shoreham Nuclear Power Station emergency plan authored by Dr. James Johnson. ,
II.8 A letter from Dr. Kai T. Erikson to Christopher '
M. McMurray, dated May 13, 1982, regarding Dr. Erikson's review' -
of the LILCO plan.
s .
II.9 A letter from Christopher M. McMurray, Counsel to. '
Suffolk County, to Dr. Kai Erikson, dated May 3, 1982, regarding a review of LILCO's plan. -
II.10 A letter from Christopher M. McMurray, Counsel s
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to Suffolk County, to James H. Johnson, Jr. , dated April 21, 1982, regarding a review of the LILCO plan.
II.11 A letter to Herbert Brown, Counsel to Suffolk o County, from James H. Johnson, dated July 26, 1982, regarding a review of Suffolk County's plan.
The County argues regarding these documents that LILCO cannot demonstrate need since the consultants involved "were made available for deposition by LILCO where their view regarding the LILCO plan could be examined." County Objections at 10. However, Dr. Erikson stated the following in his
1 X deposition,.when asked whether he had any opinion or conclusions about the LILCO plan: "I had several. I don't
^
have with me mater 1al that will allow me to be specific." Tr.
at 112. (Pages 110-113 are' attached.)11/ Dr. Johnson, in i
3 response to questions on his opinion related to the LILCO plan,
,_ stated he had prepared a critique of the plan. Tr. at 140.
(Pages~.139-147 are attached.) LILCO was not able to question Dr. Johnson about the contents of the critique, because counsel 4-for'the County asserted the material was covered by attorney-
- client privilege. In rasponse to questions about the LILCO plan, Mr. Kanen stated he couldn't recall "the very issues" he found deficient in the plan, but that he had drafted a set of
! questions about the plan. LILCO thinks that item 5 may be com-prised of Mr. Kanen's questions.
LILCO was unable to obtain details from these witnesses on their views of the LILCO plan. Having shown need, and an inability to obtain through depositions the information con-tained in the documents being withheld, LILCO is entitled to l the documents.
i i
i s
l 11/ The transcripts have not yet been corrected and signed by l the County's witnesses.
1
Group III contains the following documents, withheld under the intragovernmental communication privilege:
III.12 A document authored by Fred Finlayson titled
" Criteria for Establishing EPZ Boundaries".
III.13 A memo to Frank Jones, Deputy County Executive, from Philip B. Herr, dated May 12, 1982, regarding radiological emergency response plan demographics.
III.14 Meeting notes authored by Peter Polk regarding review of LILCO on-site plan.
III.15 Meeting notes authored by Peter Folk, dated April 29, 1982, regarding Suffolk County radiological emergency response plan.
III.16 All Steering Committee minutes.
III.17 A letter to Dr. Lee Kopelman, Executive Director, Nassau/Suffolk Regional Planning Board, from Richard A. Strang, Director of Traffic Safety, dated February 23, 1981, regarding legislation regarding emergency response planning.
It appears item 13 may represent Mr. Herr's views on certain aspects of emergency planning. In response to ques-tions regarding the LILCO plan, Mr. Herr was unable to answer
! questions in any detail, and counsel for Suffolk County objec-l l ted to certain questions. Tr. at 145-149, 159-165 (attached).
The County should provide item 13 to LILCO because it contains information for which LILCO has a substantial need, and which l
was unavailable to LILCO in depositions.
l LILCO seeks production of the documents contained in Group III for the reasons previously stated. In addition, item 12 appears to be unrelated to any intragovernmental communication and should not be withheld on that basis.
0
Group IV consists of the following documents, withheld under a claim of attorney-client privilege:
IV.18 Memorandum from Frank R. Jones, Deputy County Executive, to Herbert H. Brown, Esq., dated April 16, 1982, regarding supplements to March 29 draft emergency evacuation documents submitted to NRC.
IV.19 A letter from Christopher M. McMurray to Patricia Dempsey, Esq., County Attorney's office, dated May 10, 1982 regarding scope of services for Kai Erikaon and Jim Johnson.
Again, it does not appear from the description of item 18 that Mr. Brown is acting in his capacity as a lawyer in receiving supplements that were subsequently made part of the public record, nor did Mr. Jones apparently intend his communi-cations to be privileged. Thus, this document is not properly within the attorney-client privilege.
As to item 19, LILCO has attached a letter which may be the same item being claimed. The letter in LILCO's possession.
is part of a legislative appropriations package and as such is l
in the public record.
- Group V contains the following documents, withheld l under a claim of work product
I V.20 Letter from Philip B. Herr to Christopher McMurray, Attorney, dated July 6, 1982, regarding panel on behavior under stress.
V.21 Letter from Christopher M. McMurray to Dr. Fred Finlayson, dated July 15, 1982, regarding LILCO testimony on PRA.
V.22 Letter from Christopher M. McMurray to Robert J.
Budnitz, dated July 15, 1982, regarding LILCO testimony on PRA.
V.23 Letter from Christopher M. McMurray to Dr. Fred Finlayson, dated July 13, 1982, regarding social survey.
V.24 Letter from Fred C. Finlayson to Christopher M.
McMurray, dated July 1, 1982, regarding interaction with authors of SAI and PL&G reports.
V.25 Letter from Christopher M. McMurray to Dr. Fred Finlayson, dated June 18, 1982, regarding documents pertaining to LILCO's consequence analysis.
These documents are not properly claimed under the work product doctrine because they are not trial preparation mate-rials. With the exception of number 20, the documents were prepared by persons that the County has represented are working on developing the County plan, not litigating the LILCO plan.
The County should produce these documents.
Group VI contains the following documents, withheld under the attorney-client and intragovernmental communications privileges:
[
1 VI.26 Memorandum from Patricia A. Dempsey to Frank R.
i Jones, dated January 27, 1982, regarding the development of the l County's radiological emergency response plan, interface between the County attorney's office and the Department of Planning, and the role of the legislature in the preparation of the County's plan.
VI.27 Memorandum from Patricia A. Dempsey to Frank R.
Jones, dated March 12, 1982, regarding Judge Brenner's order that all parties produce any draft plans prepared for its emergency planning efforts.
VI.28 Memorandum from Chris McMurray to Frank Jvnes, Chairman SCRERP Steering Committee, dated May 6, 1982, regarding the SCRERP personnel.
o VI.29 Letter from Peter A. Polk to Christopher M.
McMurray, dated August 4, 1982, regarding establishment of EPZ boundaries.
For the reasons previously stated, County planning documents should not acquire a privileged status merely because the County's attorneys have been involved in the planning pro-cess. To the extent the Board finds these documents contain any privileged material, the material may be deleted and the remainder of the documents produced.
Group VII contains the following documents, withheld under a claim of intragovernmental communication privilege:
VII.30 Activity report by Kathleen Goode, Suffolk County Executive's Office, dated June 18, 1982, regarding meet-ing between PRC Voorhees and Department of Emergency Preparedness.
VII.31 Memorandum from Charles R. Skinner to Frank Jones, Deputy County Executive, dated June 21, 1982, regarding public education about SCRERP.
VII.32 Memorandum from Charles R. Skinner to Frank Jones, Deputy County Executive, dated June 21, 1982, regarding meeting with Director of Fire Safety Ron Buckingham.
VII.33 Activity report by Kathleen Goode, County Executive's Office, dated June 4, 1982, regarding SCRERP Steering Committee meeting.
VII.34 Activity Report by Kathleen Goode, County Executive's Office, dated July 1, 1982, regarding meeting of Steering Committee.
For the reasons previously stated, these documents should not be accorded privileged status.
I
LILCO asks that the Board require Suffolk County to provide these documents, if necessary deleting any material the Board deems privileged.
Respectfully submitted, kHwEh.fi% w James N.' I Kathy E.jChristmax B. McCleskey Hunton & Williams 707 East Main Street P. O. Box 1535 Richmond, Virginia 23212 DATED: September 13, 1982
{
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i
LILCO, September 13, 1982 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322 (OL)
I hereby certify that copies of LILCO'S REPLY TO SUFFOLK COUNTY'S OBJECTIONS TO LILCO'S MOTION TO COMPEL PRODUCTION OF EMERGENCY PLANNING DOCUMENTS was served upon the following by first-class mail, postage prepaid, by Federal Express (as indicated by an asterisk), or by hand (as indicated by two asterisks), on September 13, 1982:
Lawrence Brenner, Esq.** Atomic Safety and Licensing Administrative Judge Appeal Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U . '.i . Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel Dr. Peter A. Morris ** U.S. Nuclear Regalatory Administrative Judge Commission Atomic Safety and Licensing Washington, D.C. 2055 Board Panel U.S. Nuclear Regulatory Bernard M. Bordenick, Esq.**
- Commission David A. Repka, Esq.
Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Dr. James H. Carpenter ** Washington, D.C. 20555 Administrative Judge l Atomic Safety and Licensing David J. Gilmartin, Esq.
Board Panel Attn: Patricia A. Dempsey, Esq.
U.S. Nuclear Regulatory County Attorney
, Commission Suffolk County Department of Law Washington, D.C. 20555 Veterans Memorial Highway Hauppauge, New York 11787 s
v-,. - . , - , . ,. - . , . - ,-,-m-.~,--.,,--en..~- .-,,----a . - - , -
- . - . - , , <,,-.---.-,----e.- -- - - - - - - -
Secretary of the Commission Stephen B. Latham, Esq.*
U.S. Nuclear Regulatory Twomey, Latham & Shea Commission 33 West Second Street Washington, D.C. 20555 P. O. Box 398 Riverhead, New York 11901 Herbert H. Brown, Esq.**
Lawrence Coe Lanpher, Esq. Ralph Shapiro, Esq.*
Karla J. Ltesche, Esq. Cammer and Shapiro, P.C.
Kirkpatrick, Lockhart, Hill 9 East 40th Street Christopher & Phillips New York, New York 11901 8th Floor 1900 M Street, N.W. Howard L. Blau, Esq.
Washington, D.C. 20036 217 Newbridge Road Hicksville, New York 11801 Mr. Mark W. Goldsmith Energy Research Group Matthew J. Kelly, Esq.
4001 Totten Pond Road State of New York Waltham, Massachusetts 02154 Department of Public Service Three Empire State Plaza MHB Technical Associates Albany, New York 12223 1723 Hamilton Avenue Suite K Mr. Jay Dunkleberger San Jose, California 95125 New York State Energy Office Agency Building 2 Empire State Plaza Albany, New York 12223 Respectfully submitted, l LONG ISLAND LIGHTING COMPANY l
B. ,la E. AA. .yYAA-Hunton & Williams -.
707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: September 13, 1982 l
l
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s . xAntM D6Postfib d g 1 ')3 12.9 t;1o 1 (Discussion off the record.)
2 THE WITNESS: Yes, I reviewed that document.
3 BY MR. ErriARDS:
4 0 Did you read that document in light of the
, 5 regulatory recuirements that it must meet?
i' 6 A No. I did not. There are many issues in that plan 7 that I f eel were not within my area for judgment.
B Q On those areas that are within your areas of 9 judgment or exoertise, did you evaluate that plan with 10 respect to the regulatory requirements?
11 A I attemoted to do so', yes.
12 O Can you olease list for me with respect to the C
13 original LILCO plan those areas that you felt were deficient '
{ } 14 in meeting the regulatory recuirements?
! w .
l .' 15 MR. MC MURRAY: This is of course to the best of 16 his ability to recall that plan.
17 VR. EDWARDS
- All cuestion sare to the best of his
- 18 ability.
l-19 THE WITNESS: I cannot recall the very i ss ues .
l I
i 20 generated a set of questions at the time about the plan. The 21 one that I do recall was an item where NUREG 654 and 22 Accendix 4 recommends the determination and reporting of an cAce 9edezaf cReporten, .Onc.
444 NORTH C APITOL STREET W A SHINGTO N, D.C. 20001 I
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NATIONWIDE COVER AGE l
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9 130 i
evacuation time from the entire EPZ and that time estimate 2 'w'as not included in the plan.
3 BY MR. EDWARDS:
4 0 Did other employees of PRC Voorhees read that 5 that you know of -- read the original LILCO plan to I
6 determine whether it met the regulatory requirements with 7 resoect to those areas in which they had an expertise?
8 A Yes. Mr. Peter Pulk.
, 9 0 Who is Mr. Pulk?
10 A He is a senior associate with PRC Voorhees.
11 O What is his area of expertise?
12 A He is a transportation planner that has been 13 involved in evaluation studies and off-site emergency 14 . planning on many of the projects that we spoke of earlier in 15 this deoosition.
16 0 Do you know whether Mr. Pulk. generated a set of 17 Questions about LILCO's plan with respect to the regulatory 18 requirem en ts ?
19 A No, he did not t no.
20 0 Do you know whether your set of questions ended up 21 being contentions that were filed by Suffolk County?-
22 MR. MC MURRAY: I will object to that question.
c0cc- 9ederal cReporteu, Linc.
444 NORTH C4 PITOT. STREET W ASHIN GTO N. D.C. 20001 (202 347 3700 N ATIONWIDE COVE R AGE
. _ _ _ _ _ _ _e_d
S3 10 131 Mio 1
I think that evades the attorney work product orivilege.
2 THE WITNESS: I believe some of the cuestions may 3
have become part of a contention, but not in a verbatim kN 4 context.
5 9Y MR. EDWARDS:
6 0 Other than the one area that you soecifi cally 7
mentioned, do you remember any other areas that you 8 ouestioned about that plan?
9 A Most of the other cuestions I recall are questions 10 of where the information did not allow me to exercise a l1 judgment on adequacy or inadequacy.
12 O And when you say "information," are you referring 13 to information within the emergency plan itself?
14 A That's correct.
15 0 Are you also referring to the emergency clan 16 implementing procedures?
17 A Yes.
0 18 You have reviewed those?
19 A Yes.
20 0 In reviewing the July version of LILCO's emergency 21 i
olan, have any of the questions that you raised originally 22 been alleviated by that revision ?
l c0cc- 9ederaI cAeporten, .Onc.
444 NORTH C APITCL STREET W A S HINGTO N, D.C. 20001 (202) 347 3700 N ATIONwlDE COVER AGE
.c -
i f.
h-j :3 11- 132 j Nio I A I have not had the occortunity to go throuch that 2 document in detail to check the list of questions in 3
connection with the time estimate for the entire EPZ.
'h 4 I do not believe that was changed in the July version of 5 the plan.
6 0 Do you intend to review the revision to LILCO's 1
7 olan to determine with respect to the other cuestions that j
' i 8 vou raised that the reasons you raised those cuestions have I 9 been allevia ted?
P Tl 10 A Yes. '{
1 11 0 Do you have a time f rane in which you intend to do 4
12 that?
13 A We would exoect to do that within the next 10 14 days.
g' g r
t 15 0 If I were'to.ask you, sir, your areas of epxertise 16 with resoect to LILCO's plan, that you feel that you can
! 17 evaluate what areas would that be?
I C 19 A Primarily the areas in which activities in the 1
i 19 on-site plan area credicated upon certain off-site l
20 conditions and in certain areas of public alerting.
,c 21 0 Do you know whether you will be testifying on
?? those areas at che hearings in front of the ASLB?
r r
b cAce- Je.:leza{ cReporten, Snc.
e wAsEdEro'[ECI*I"El' o i
. .m,w.m.
$ N ATIONWIDE COVER AGE e
d b
1 EerysoN bgpos'ITid 10 Ol ',
!!O Tor 1 AFTERN00M SESSION 2
(1820 p. m.)
3 Whereupon, 4
KAI T. ERIKSON 5
resumed the stand and, having been previousy duly sworn, was 6
examined and testified further as follows:
7 EXAMINATION (continued) 8 BY MR. RUDLIN:
9 0 Dr. Erikson, you indicate you have reviewed the
] 10 LILCo emergency plan.
l 11 A The on-site emergency plan, right.
12 MR. MC MURRAY: Exeuse me, Mr. Rudlin, can we 13 make a distinction between the LILCo Plan Revision 1 and the 14 LILCo Plan Revision 2 which came out in July?
15 MR. RUDLIN:
1 If that's a distinction that the 16 witness needs to make.
17 THE WITNESS: 'It is.
I have read I but not 2.
19 BY MR. RUDLIN:
19 0 You have not read the LILCo emergency plan that 20 is dated, I believe, June 28, 1982?
21 A If that's the plan in multiple volumes?
22 O Yes.
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444 NORTH CAPITOL STREET WA SNINGTON. O.C. 20001 402, 347-3700 N ATIONWIDE COVER AGE
10 02 111
? Tor 1 A I haven't read that yet, no.
2 0 Okay. Have you had a copy of the revised LIL7o 3 emergency plan furnished to you?
4 A Yes , I have.
5 0 You simply have not yet had the opportunity to 5' review it, I take it?
l V It was sent to an address, a different 7 A es.
8 address from the one I have been occupying for the summer 9 which nobocY could have known.. So I haven't actually had 10 physical a ccess to it.
11 0 Do you plan on reviewing.it?
12 A 1 would assume so.
13 0 Do you know when you are going to be reviewing 14 it?
15 A S oon .
16 0 What is the ourpose of your review of the LILCo 17 emergency plan?
19 A I would review it In consultation with other 19 people so I can only -- so all I can give you is a very 20 general answer that I would look at it to see whether 1 21 thought it satisfactorily met the needs of the. people of the 22 county.
l 1
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444 NORTM CAPITCL STREET W A S HIN G 'O N. D.C. 20001 G00 347 3700 N ATIONWlDE COVER AGE
01003 .112 BRIor 1 0 Satisfactorily in the sense, from your 2 perspective as a sociologist?
, 3 A Yes. Yes.
4 0 . For instance, you do not have the background or
.5 expertise to judge evacuation times?
6 A No.
7 O And you are not an expert.with respect to knowing 8 what an adequate evacuation time is or not?
9 A Right.
10 0 Now, in your review of the first draf t of the 11 LILCo emergency plans, did you reach any opinions.
12 conclusions, or impressions about that plan?
13 A I h.ad several. I don't have with me material 14 that will allow me to be specific but I thought as a general 15 proposition that the plan did not sufficiently address the 16 question of the kinds of - of the degree to which people 17 who are expected to be called upon in an emergency would 18 experience conflict with other responsibilities they had and 19 I didn't think it addressed the question as to how the 20 particular people of Suffolk County would respond to very 21 general kinds of directives because no one at that point in 22 time had asked the question of -- had done a psychological l
9 a
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444 NORTN CAPITOL STREET WASHINGTON. D.C. 20000 tacts 347 3700 N ATIONWIDE COVER AGE i -
-. _. .. _.-, _ _ _ . - _ - _ - - - - . . , . . _ . _ , , . , . , . _ _ . . - - . , , , , _ , . - _ - . . , _ . . . . . _ ~ . _ . , . . _ _ _ ,
I 1
0 10 04 .113 l
BRTor I and social profile of that population.
2 O You have reviewed other emergency plans done by 3 utilities for nuclear facilities is that right?
4 A Yes.
5 0 I believe you said Diablo Canyon?
6 A Yes.
I l
7 0 Indian. Point?
8 A Indian Point, there's a number of them. And I i
9 have reviewed some of that large number.
10 0 Are the deficiencies that you have just generally 11 described with respect to the Shoreham plan the same type of 12 deficiencies that you found in these other emeroency plans?
13 A Very generally speaking, yes.
14 0 From what you know of Shoreham and its vicinity 15 and what you know of the other nuclear facilities and the 16 emergency plans that you have reviewed, are there any 17 significant distinctions in the deficiencies between the
]P emergency plans for the various facilities?
19 A This plan is not strictly comparable with the 20 others that I have reviewed and the reason I paused a moment 21 ago is I was trying to remember whether I had ever seen 22 another on-site emergency plan, and I think all the other i
cAce- 9ederal cReporteu, Dnc.
444 NORTH C APITOL STREET W A9 MINGTON. D.C. SM01 (2021 347 3700 N AnONWIDC COVER AGE
m EnutPATRIC3C, LOCmu.RT HILL, CHRICTOPH.ER Sc PHT.LLIPS ir..,iw-n. mc-1900 M Srazzr, N. W.
WAE1EINGTON, D. C. 20036 -
arwosra reas; se.roco y emwnemos u stras manazanz i- .sospoo. a avrcason am .n. uma et ameo carras scu.n p o r.... erna.a. = === .m.no. , .mai. .
202) 452-8391 * * *
- May 10, ,1982 1
EXPRESS MAIL Patricia Dempsey, Esq.
County Attorney's Office H. Lee Dennison Building veterans Memorial Hignway - -
Hauppauge, New York 11788
Dear Pat,
Enclosed please find the proposed scope of services for Kai Erikson and Jim Johnson who will be conducting the social surveys for the RERP as well as assisting us in litigation of LILCO's emergency plan. As we discussed by phone today, Dr. Stephen Cole of Stoneycrook, who will be doing the actual.
polling for the survey, will be contracting separately with you for his services.
Please note alsc that Drs. Erikson and Johnson will be enlisting the aid of some other experts who are named in the proposal.
Please contact me if you have any questions regarding the enclosed.
Yours trulv.,
W Christopher M. McMurray
'CMMcM:hmw Enclosures cc: Kai Erikson z:
Jim Johnson Eh C y r I?-" E -- .:
. = = . _ .~..
- c t - E'~ ( 71 93 9 ""~
- =.~
-~ == I m.
y q,, 3..
d N.
m
- lh!?RA bEPositie 10 12 145 RTcus 1 THE WITNESS: Do you want to rephrase the question 2 and get an answer? I 3 MR.'POWELL: You can answer the question.
4 THE WITNESS: Yes.
5 RY MR. POWELL 6 0 What is "orogram design"?
7 A Program desion is the design of the things which 9 one does, in this case in orecaring a olan arranged over 9 time, and distributed over who does what.
0 10 By " plan," do you mean emergency plan?.
11 A Yes, sir, in this case.
12 0 In oaragraph 2. You say, "In a ddition. I will, if 13 recuested as above, consult on matters relating to on-site 14 emergency clanning - .." Have you been requested?
15 A Yes.
16 0 Have you then consulted on matters relating to 17 on-site emergency olanning7 ,
18 A Yes.
19 0 Would you describe for me what you mean when you 20 say on-site emergency planning?
?1 A As I understood it at the point at which this
/
22 document was drafted, it was those asoects of emergency
(
c0ce- 9ederal cReporters, .One.
444 NORTH CAPITOL STREET WASHINGTON. D.C. 20001 (301) 347 3700 N ADONWlOE COVER AG d
% ._ j
70 to 13 146 39Teus I olanning for which the apolicant. as ocoosed to the county, 2
has the primary resoonsibility for orecaration and which are 3
( metters that deal with measures to be taken onsite in 4
resoonse to, or in anticioation of, some form of incident.
5 0 Describe for me if you will, then, what you have 6 done with resoect to on-site emeroency planning?
7 MR. MC MURRAY: I object to that. That gets into 8
work oroduct orivilege, and also attorney-client orivilege.
9 and I will instruct the Wi tness not to answer that question.
10 BY MR. POWELL:
11 Q Mr. Herr, do you chose to follow Mr. McMurray's 12 instruction?
13 A Yes. I do. -
( 14 MR . POWE LL: Rather than receatino again what I 15 have already put on the record. I will merely make reference 16 to it is to my oosition on your instruction not to answer.
17 SY MR. POWELL:
IB 0 Mr. Herr, in that same caragraph, at the center of 19 the first oege, you refer to "other ma tters in contention."
20 Have you been requested to consult on other matters in 21 contention?
22 A I don't believe so.
( .
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ha NORTH CAPITO8. SUt E ET WA SHINGTON. D.C. 20001 (202) 347 3700 N ATIONWTOE COVER AGE
) 11 Of 147 3RTeus 1 0 Has there been any informal discussion between you 2 and reoresentatives of the county that might lead you to 3 believe that in the future you will be called upon to I- 4 consult on other matters in contention?
5 MR. MO '4URRAY I'll object to that question on 6 relevance.
7 THE WITNESS: No.
8 BY MR. POWELL:
9 0 But you would do so if asked?
10 A If it seemed reasonable and we had relevant 11 caoacities and budget and so on, sure.
12 0 You refer at the end of that caragraph to "related 13 litigation." What do you mean by related litigation?
. 14 A This whole letter was written by me. To be very
(
15 clear, I'm not an attorney and I get confused as to what 16 these words.mean. And again, they really had the same 17 intent as nas related matters." That is, not to foreclose 13 flexibility in what the client might seek in seeking 19 whatever helo I.might give.
20 0 When you wrote this letter in April 1982, were you 21 aware of any related litigation?
22 A No, sir, I wasn't.
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h4 NORTM CAPITOL SMtEET WASHINGTON. O.C. 20001 (202: 347 3700 N ATIONWIDE COVER AGE E
11 02 143 Icua i O Are you currently aware of any related litigation?
2 A No. I'm not. I think there may be some, but I'm 3 not cognizant of it.
4 0 I take it, then, that you had not been requested 5 to consult with resoect to any related information?
6 A Maybe I di dn't understand the question, but j 7 nothina that I'm cognizant of.
S O Mr. Herr. thq next caragraph in Herr Deoosition 9 Exhibit 3, indicates that you first visited the site on
, 10 Aoril 13. I take it that's the oower station?
1 11 A I believe I meant " site 8' much more broadly and 12 really meant Suf folk county as the site.
13 0 Have you ever had occasion to go to the oower 14 station? - .
15 A Yes. I have.
16 0 How many times have you been there?
17 A Once.
l 19 0 When was that?
l 19 A I believe it was April 13.
20 0 Were you given a guided tour?
21 A No, sir, I was not.
22 O Who did you visit the site with?
l l
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Add NORTH C A PITOL STMEET WASHINGTON. D.C. 2000t (201 347 3700 N ATIONWIDE COVER AGE
1 n 11 03 149 97Tcus 1 A If --
2 0 If you can recall.
3 A If I can recall, to the best of my recollection I
'- 4 visited the site with reoresentatives from Voorhees' 5 Associates and perhaps Attorney McMurray.
6 MR. MC MURRAY: Excuse me, may I make something 7 clear? How are you defining site? Inside the f ence 8 boundarv or inside the reactor building and structures like 9 that --
10 MR. POWELL: I sucoose by " site " I mean within 11 the owner-controlled. zone which is, I forget how many feet 12 that is.
13 MR. MC MURRAY: You're talking within the fence
( 14 boundaries or whatever? Not beyond where vou drive voQr car 15 to to the gate, for instance, and just looking at the olant?
16 BY MR. POWELL:
17 0 Nell, whv don't we ask the Witness how many times 13 have you been within a 1000 yards of the power station?
'19 A Why' don't you ask it another way, if I might? Why l 23 don't you ask me how many times have I been inside the 21 fence?
1 22 0 How many times have you been inside the fence? !
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444 NORTH CAPITOL STREET WASHINGTON. DA 3 MCI (2021 347 3700 N ATIONWIDE COVER AG E
11 13 159 Tcus 1 entiretv?
2 A That's correct.
3 0 Are you half-way through it? Quarter of the way 4 through it? Most of the way through it?
5 A I have reviewed the plain document itself from one 6 end to the other, quick 1v. I have reviewed some, but not 7 all, of the documents which are incoroorated by reference.
S O Such as?
9 A The training manuals, the exercise manuals, the 10 Wilev Report, and I haven't yet had an ooportunity to focus 11 that review in substantial depth in any of the selected 12 parts of the whole of it.
13 14 15 16 17 E 19 19 20 21 22 cAce- 9ederal cReporten. Dnc.
444 NORTH C APITCL STREET W A S HIN GTO N. D.C. 20001 i2014 347 1700 N ATIONWIDE COVER AGE
) 12 01 160
- kj0RT I O Have you had occasion to review it sufficiently to 2 develop an opinion regarding -its overall adecuacy in light 3 of the regulatory standards that you have indicated you have
(
4 revi ewed?
5 A I think the answer is no. I think it's oremature
- to form conclusions.
7 0 Have you had occasion to form an ooinion with S resoect to the. adequacy of any carts of the plan as ocoosed 9 to the entire olan?
10 A I think the same comment. I think it's oremature il to have done that.
12 O So at this point in time, you don't have anv 13 ooinion at all with resoect to the adecuacy of any
( 14 particular part of the olan or with respect to the entire 15 plan?
16 A That's correcti that I don't have any conclusions 17 with regard to any parts of it.
IS O Have you had an ooportunity to review Suff olk 19 County's emergency olanning contentions?
20 A Yes, I have.
21 O Before I get further into the contentions, have 22 you develooed any tentative, as ocoosed to. final opinions.
(
cOce- 9edera( c.Reporten, One 444 NORTH CAPITOL STREET W ASHINGTON. D.C. 20001 G02p 347 3700 N ATIONWlOE COVER AGE
_.___a
) 12 02 161 sk j99T I with resoect to adequacy of either the LILCO emergencv plan 2 as a whole or any of its parts?
3 A I would say no. I really haven't formed even a
( 4 tentative conclusion regarding either the whole or the 5 parts.
~
6 0 Have you had occasion to assist in the draf ting or l 7 preoaration of any of Suffolk County's emergency olanning 8 contentions?
l 9 A My hesitation is over memory rather than content.
10 I don't believe -- I don't believe that I contributed to l
11 that.
12 Certainly not in any substantial way.
13 0 Do you anticioate participating in any redrafting g
14 of any of Suffolk County emergency planning contentions?
15 A. I wasn't even aware that they were subject to 16 being redrafted.
l 17 0 When was the last time you reviewed the Suffolk l
18 County emergency olanning contentions?
19 A This past weekend.
20 0 Can you identify for me -- strike that.
?! Have you be en assigned by the county any particular 22 resconsibility with respect to the county's position as l
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cAce- 9edeza[ cReporten, Sac Me NORTN CAPITOL SUtEET W A S HIN GTO N. D.C. 20001
~
G01p M7 37MI NAUCNWlOE COVER AGE
D-12 04 163 at19RT 1 MR . POWE LL: Mr. McMurrav', will you sticulate for 2 the record that that is an a ccurate rendition of 397 3 And oerhaos we can read it into the record?
4 MR. MC MURRAY: Let me comoare it with my version
(
5 of 3B first.
6 (Discussion off the record.)
7 MR. MC MURRAY: We will stipulate that that is an 8 accurate version of contention 38. of course noting that the 9 underlinings under several words and the marginal notes are 10 not part of 38.
11 BY MR. POWELL:
12 O Mr. Herr, will you then read for the record those 13 several lines which sopear to be B.?
14 A "Furthermore LILCO has failed to adequatelv
(
15 demonstrate that ground transoortation (Plan at 6-21 A) is 16 adouate for conveyance of contaminated individuals to 17 Central Suffolk Hosoital under the congested traffic or 18 radiological conditions that might exist during a l
19 radiological emergency.
20 "Thus. LILCO has failed to satisfy 10 CFR Paragraph l
21 50. 47 ( 6 ) ( 12 )', 10 CFR Part 50, Accendix E. It em IV.E. 6, and 22 NUDEG 0654, It en I I.L. 4.2' /
l
(
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I 444 NORTN C APITOL STR EET W A SHIN GTO N. D.C. 20001 G01s 347 3700 N ATIONWIDE COVER AGE
1
- l
) 12 03 162
- kjBRT I embodied in any of these contentions? l 2 A No.
3 MR. MC MURRAY: I'll object to that question and k 4 ask the Court to strike that answer.
5 MR. POWELL: What'was the answer?
~
6 THE WITNESS: Was I not to answer?
7 MR. MC MURRAY: I have stated my objection. j l
9 THE WITNESS: No, I have not been assigned any )
9 resconsibility in it. l 10 BY MR. POWELL: l 11 0 Mr . He rr , Su ff ol k County's a tt orn eys , in a l e tt er 12 to ari associate of my firm, suogested that you have been, or l 13 may be assigned resoonsibility with resoect to three of the 14 emergency olanning contentlons.
[
15 One of these, and it's the only one I intend to focus on 16 for the moment, is number 39. Let me just give you a copy 17 of 38 from my file.
IS The maroinal notes are mine, and I'm not going to ask you 19 about them. I just want you to read the paraaraph that is
'O delineated B. on this oage, and tell me if you recognize i
?! that?
l l 22 A Yes. I do.
~~
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444 NORTH C APITCL STREET W A S HI N GTO N, D.C. 20001 G022 347-3700 l NATIONwtDE COVER AGE l l
1
) !? 05
- 164 skj99T 1 0 Mr. Herr, do you agree with that statement that 2 vou have just read into the record, which is Suffolk County 3 Emergency Plan Contention 3B?
('
4 A I haven't --
5 MR. MC MURRAY: I'll object to that question. It 6 coes to an issue directly at controversy -- in controversy 7 at the moment.
9 MR. POWELL: That's why I'm asking him. That's 9 why I thought we were here.
10 BY MR. POWELL:
11 0 Do you acree with that Mr. He rr?
12 MR. MC MURRAY: I'll just note my objection.
13 THE WITNESS: I haven't formed a conclusion about
( 14 that contention.
l 15 BY MR. PONELL:
l 16 0 Does the second line plan at 6-21 A mean anything 17 to you in carticular?
18 A No, it doesn't -- it does.
19 MR. MC MURR AY: Excuse me. I think Mr. Herr just j 20 said it does mean something.
21 THE WITNESS: To the degree it means anythino, my 1
1 22 recollection is that I was confused by it because when I 1
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444 NORTH CAPITOL STREET W A S HIN GTON. D.C. 20001 GOtt 347 3700 N ATIONWIDE COVER AGE
393 12 06 165 s'< 199T 'l looked at my copy of the plan, I didn't find ground i
2 transoortation materials at 6-21A, if my memory serves me 3 co rre ctly.
I
- s. 4 BY MR. POWELL:
i 5 0 Were you aware that Suffolk County counsel 6
identified you as a witness who would be knowledgeable with 7
resoect to Suf folk County Contention 3B?
9 MR. MC MURRAY: I'll object to that cuestion.
9 That goe:
to attorney work product, and the attorney-client l 10 privilege.
Il MR. POWELL: I disagree with you.
12 BY MR. POWELL:
13 0 Were you aware, sir?
g 14 A I had been inf ormally informed that there was a 15 set of contentions, that I was likelier to be called on as 16 an expert than others.
17 But that's how I took i t, that it is conditional, and IB deoending on whether others -- these were more or less 19 acoropriate for my involvement.
20 BY MR. POWELL:
21 Q What was included in that set?
22 A I can't tell you that.
L cAce 9ederaf cReptten, Onc.
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. . o ONN60N M h 4i T/OM 12 06 139 T I acoearing before the board to have a ruling on this matter 2 in connection with the resumption of the deoosition.
- 3 And I will further ask that the board enjoin the county 4 from reimbursing Vr. McMurray any of those expenses.
5 BY MR. SPIVEY:
i 6 0 When did you review the on-site olan, what you 7 have celled the on-site plan Dr. Johnson?
9 A During the month of Mav.
l 9 Q And when .did you look at the county's plan?
10 A It may have been during the month of April. I 11 don't really recall.
12 MR. SPIVEY: It just occurs to me. I'm going to 13 ask for a further sanction, too, and that is to prohibit i
14 Dr. Johnson from filing any testimony in this ma tter.
(
15 And to prevent him from appearing for examination or 16 cross-examination at any proceeding before the boardt and 17 also to prevent the filing of any testimony and the 18 aopearance of his colleagues who have assisted him in the 19 study that is currentiv ongoing.
20 BY MR. SPIVEY: ,
?1 O In reviewing the on-site plan and in reading the 22 county's olen. Dr. Johnson, did you see any areas where the
(
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444 NORTM CAPf?OL STREET WAFMtMSTON. D.C. 30001 SeaJ S47 3700 MATIOMWIOg COVERAGE
12;07 140
- - 7T 1 two aopeared to come together?
\- 2 I think the term that's use that I disoise is 3 minterface"?
(
4 A When I read the two olans. I didn't look at them 5 in that regard.
6 0 What was your puroose in looking at what you had 7 called the on-site olen?
8 A I was asked to write a review of it based on mv 9 expertise.
10 0 Did you do that?
11 A Yes, I did.
12 O And where is that?
13 A It has been submitted to you, as .I understand it.
( 14 in the -
15 MR. MC MURRAY: Obj e. :.ti on. That's getting into 16 attorney work oroduct.
17 BY MR. SPIVEY -
19 0 Is it your understanding it has been submitted to l 19 the aoolicant. Dr. Johnson?
20 A As f ar as I know. I have submitted it per their 21 reouest. /
22 MR. MC M'JRR AY: Let me state for the record that t
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aad NORTN CAPITOL STUREET WASNIMSTON. D.C. 30009 .
m 347 3700 NATIONWIDE COVERASE
141
> 12 09
' 7T I Dr. Johnson, oursuant to the board's order that Suff olk
(
2 County's r.onsultants turn over all their written material'.
3 sent various items from its files.
I 4 One was a criticue of Lilco's plan, which we withheld 5 hecause it consists of a ttorney work product and also 6 infringes on the attorney-client orivilege.
7 So therefore, it has not been turned over.
3 BY MR. SPIVEY:
9 0 Dr. Johnson, have you submitted any other 10 documents to the county or its attornevs to date, other than il the one you have just described?
12 A Prior testimony and all of the communications, 13 letters --
14 0 Prior testimony shere?
t
(
15 A San Luis Obispo, the Diablo Canyon hearing.
16 MR. MC MURRAY: Let me state for the record that 17 that has been turned over.
IS BY MR. SPIVEY:
19 0 Does' that include the deposition that was taken of 20 you in that proceedino?
21 A I don't think so. No, it didnt'.
l 22 0 Dr. Johnson, should you ever determine to publish l
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'?T 1 in an academic endeavor the surveys that are underway in 2 Suff olk County, would you expect them to go before a oeer 3 review?
4 A ,
They would have to.
5 0 And what's your basis for saving they would have 6 tn?
l 7 A That's the only way you can get oublished in 8 adademic journalst the ones that are acceotable.
9 0 In undertaking to draf t such a report - strike 10 that.-
l 11 Have you ever been a part of a oeer review grouo?
12 A Have I ever reviewed?
13 0 Yes, sir.
. / 14 A Yes, I have.
! t ,
15 0 As a cart of oeer review?
16 A Yes.
17 0 In looking at the type of recort, or the tvoe 'of 19 publication that may come out of this Suffolk . County survey, 19 would you be sensitive to the language that was used?
20 A By whom?
?! O 8ty yourself.
22 A Yes. As a social scientin I am very careful i
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, 12 10 343 7T 1 with the lancuage that I use.
2 0 For exemple, if you had a choice of the word 3 "olight" or " situation." which one would you choose?
4 A In what context?
5 0 Any context.
6 A It deoends on the context of the writing, the word 7 that I would choose. I may not use either one.
9 0 Well I'm outting a hypothetical to you, and the 9 hypothetical is if you had to choose and were limited to the 10 words " plight" or "sitiration," which one would you chnose?
11 A Situation.
12 0 And if you had to choose between the verbs " flee 13 or fled" and " departed." which ene would you choose?
14 A Departed. ,
15 0 With resoect to this critique that you wrote, 16 which has been furnished to your counsel, when was that 17 prepared? ,
18 MR. MC MURRAY: Objection. That's attorney work 19 products also infringes on the attorney-client orivilege.
'20 MR. SPIVEY: I don't intend to ask him abo'ut the 21 contents. since vou asserted the privilege. I just went to 22 know when it was orepared.
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'9T I THE WITNESS: May. I believe. Or first of June.
2 May-June, some Aere in there.
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4 3 01 145 us I BY MR. SPIVEY:
2 O And what did von have resort to, other than the 3 document itself wen you creoared it? Your criticue? {
4 A My exoertise.
5 Q Did you refer to any learned journals or l 5 oublications?
1 7 A Yes, I did. Indirectiv, ves.
9 O Did vou call on them from memory, or did you have 9 occasion to ao oick.uo a tome?
10 A Well, I looked at things to make sure what I 11 recalled from memorv is correct.
I? O And tell me in as much detail as you can recall, 13 what reference works you consulted.
14 A Works by different resegrchers. Works that have 15 acceared on Three Mile Island, including our own survev 16 work.
17 Q Approximately how long was this document? Mnw l
19 many osges?
19 A Three neces I think.
20 0 And when did you turn this over to counsel?
l ?1 A Annin, late May, eerly June.
22 MR. MC MU9 RAY: I'll o5 ject to this line of l
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13 02 146 Tcus I questionina again. I think you're infrincing again on the 2 work oroduct orivilege.
3 BY MR. SPIVEY:
[ 4 O Can you tell me why it was oreoare'd?
5 MR. MC MURRAY: 05jection.
l 9 TME WITNESS: It was requested.
7 9Y MR. SPIVEY:
9 0 By whom? 4 9 A The law fir,.
10 MR. MC Mf1RRAY: Objection.
Il BY MR. SPIVEY:
j I? O The law firm, you said?
13 A Yes.
. 14 0 Dr. Johnson, in your review of what you have 15 ,
called the on-site olen, did you detect env deficiencies ?
~
16 A Yes. I did.
17 0 Mhet were they?
19 A There was NUREG 0654. recuires some estimate of 19 the time it takes to evacauste the populetion be included in 20 the plan. That was non-existent. NUREG 0654 requires some 21 mechanism for dealing with ri ors he included in the olan.
22 T5at was non-existent. The olen assumes that amercenev
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l 13 93 147 7 us I resconse eersonnel rescend oromotiv to cells for s 2 assistence. Empirical evidence suogests that that mav not 3 be forthcoming.
4 Q Anvthing else?
5 A That's it.
6 0 Dr. Johnson. could you just exosnd for me what the 7 deficiency was that you detected with respect to evacuation 6 times?
9 A They didn't socear.ln the olen, the coov that J 10 hed, at that oofnt.
11 0 Have you ever heard of an outfit called the Esset 12 Corocration?
13 A No. I haven't.
14 0 Have you ever done any work for them?
{
15 A No, I haven't.
16 O Dr. Johnson, looking at the on-site olen within i
17 vour area of excertise, does the Shoreham facility oresent i
IS any obstacle to a workable olen that could not be worked out
?9 by good faith effort?
20 MR. MC MURRAY: I'm unclear on the ouestion. Good
?! f aith effort on whose cart?'
22 MR. SPIVEY: On everyone involved with the olan's i
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