ML20078R830
| ML20078R830 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/10/1983 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20078R833 | List: |
| References | |
| ISSUANCES-OL-3, NUDOCS 8311150316 | |
| Download: ML20078R830 (29) | |
Text
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i-LILCO, November Iggn@fgp USHRC 53 k@ 14 d2:00 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g,gn.- m,s~-'
W W.
Before the Atomic Safety and Licensing Board In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning Proceeding)
(Shoreham Nuclear Power' Station, )
Unit 1)
)
LILCO'S REPLY TO SUFFOLK COUNTY'S MOTIONS FOR DE' LAY OF ITS TESTIMONY FILING i
i.
I.'
INTRODUCTION
.LILCO replies preliminarily here to the two papers filed last evening by Suffolk County,1/ which counsel for LILCO re-ceived after the close of normal business hours.
Each of these motions seeks, in differing ways, a two-month delay for Suffolk I
County to complete and file its testimony, now due on November 1/
The briefer of these papers, captioned "Suffolk County Re-quest for Conference Call,." concerns the County's unilateral at-tempt to shift certain admittedly Group I testimony matters relating to Contentions 23 and 65 to the Group II testimony fil-ing schedule.
The lengthier of them, "Suffolk County Motion for Change in Schedule with Respect to Contentions 65, 23.D and 23.H and for Board Order Clarifying Which Revision of the LILCO Plan is'to be Litigated" (hereinafter, "SC Traffic Motion") likewise requests that the County (but not LILCO) be relieved of its November 18 testimony filing obligation, along with certain other relief.
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o e 18, on substantial portions of Group I issues.
This reply.will perforce be less detailed than the County's unannounced filings
-tempt, or than would be possible with more time; however, the County has requested expedited consideration by the Board, and LILCO agrees that this matter should be disposed of expedi-tiously.
LILCO's response to the SC Request for Conference Call, set forth more fully in Part II below, may be summarized very simply as follows:
The SC Request is an improper attempt by the County to ef-feet a unilateral shift in a schedule adopted by this Board on the basis of a compromise proposal previously agreed to by all the parties.
In fact, the contentions now slated for testimony filing on November 18 -- the " Group I" issues -- are precisely the ones the County indicated its willingness to file testimony on by then (LILCO would have preferred a significantly broader group of issues).
The County does not dispute that the material it seeks to reschedule is Group I material.
The County was pre-sumably aware, or should have been, of the implications of its agreement respecting scheduling at the time it entered into it.
Its attempt to renege on this agreement, on no stronger basis than its retrospectively perceived convenience, should be summa-rily rejected by the Board.
,_~.
s-
.- i The SC Traffic Motion requires a somewhat more complex re-sponse, which is set forth more fully in Part III below, and may be summarized a's follows:
I
'1.
LILCO rejects categorically and explicitly the County's groundless insinuations that LILCO or its counsel have either af-firmatively deceived the County or quietly lulled it into aiming its testimony at a false target.
The County has known for sever i al months from letters, discovery, and conversations with LILCO and others that a Revision 2 was in the works, and its claims of-surprise can only be regarded as theatrical.
2.
Revision 2 does contain a variety of t.ypes of changes.
LILCO went to considerable effort to characterize them accurately in the covering letter accompanying Revision 2 (SNRC-973, Pollock to Denton, November 7,s1983).
That letter points out, at page 3, Paragraph 2, the important changes affecting the " Group I" con-tentions:
principally, the use of helicopters as route spotters and the abandonment of forcible evacuation perimeter control 2/
The County's protests come with particularly ill grace con-sidering the history of this proceeding and the County's oft-repeated representations, between March 1982 and February 1983, that it was working in its own emergency plan and would present it as soon as it was finished, only to surprise LILCO and all other parties in February 1983,.with its sudden, unilateral, and totally unforeshadowed conclusion, embodied in a Resolution of the' County. Legislature and a speedy implementing order from the County Executive, that emergency planning was impossible and that the Suffolk County government would actually dedicate all of its vast resources to opposing the possibility of emergency planning for Shoreham.
measures.
These changes have two relevant attributes.
- First, the County knew about at least one and, LILCO believes, both of them well prior to the filing of Revision 2.
Second, in any event their impact is easy to perceive and does not take substan-tial time to evaluate.
The fact that these changes may eliminate what the County may have considered to be substantial bases for criticism of the Transition Plan is no reason for complaint about them if the purpose of this proceeding is to determine whether the Transition Plan can result in feasible emergency planning.
The County simply is disagreeing, apparently, with LILCO's char-acterization of the other categories of changes to the Plan as not materially affecting Contentions 23, 25 and 65.
As is summarized in item 3 immediately below and developed in more detail in Part III, the County is simply incorrect on these remaining bases of complaint.
3.
The County's remaining substantive complaints -- those about areas not stated by LILCO to materially affect Contentions 23, 25 and 65 -- are, in a word, ill-taken.
The time-constrained circumstances of this Reply do not afford the ideal circumstances for responding on the merits.
Further, since LILCO cannot tell what has been sent by the County under seal to the Board by way l
of draft testimony, it is impossible to tell with any precision what of its efforts the County considers to have been wasted.3/
l l
3/
LILCO notes with more than casual interest the County's as-sertion (SC Traffic Memo at 11-13) that substantial efforts by l
(footnote continued)
O.
However, as is shown in more detail in III below, each of the County's complaints is baseless for one or more of the following reasons:
a.
The complaint proceeds from an inaccurate premise, which would either have been disclosed by a more careful reading of Revision 2 or cleared up by a telephone call to LILCO's coun-sel.4/
This is the case, for instance, as to the entire category of asserted m:.ssive changes in control point locations and con-trol strategies in Appendix A, Figure 8.
No control strategies have been changed.
Probably a net of 20 to 30 control points, of more than 200, have been moved short distances and a few, beyond the 10 mile EPZ, have been dropped.
But no evacuation routes whatever have been changed, no evacuation time estimates have been changed.
In short, all Revision 2 does is enhance the anal-ysis already presented.
b.
The complaint proceeds from the County's failure to make use of the massive amounts of material disgorged by LILCO in depositions, document production and responses to (footnote continued)
Suffolk County Police Department have been wasted.
At the time LILCO deposed SCPD witnesses on the traffic issues in early September, all of them professed to have done, as yet, no de-tailed'aork on the Transition Plan.
4/
LILCO invited such a conference call in a November 9 letter (Irwin to Letsche), attached as Exhibit I hereto.
I interrogatories.
This is true, for instance, as to the complaint about allegedly changed roadway capacities.
c.
The complaint reflects either ignorance or misinter-pretation of the Transition Plan as supplemented by discovery.
The lengthy discussion in the Traffic Motion of the functioning of the evacuation model reflects only the base case set forth in the Plan.
It totally neglects additional analyses by LILCO con-cerning non-use of special control mechanisms to supplement ordi-nary traffic signals, the possibility of noncompliance with routing recommendations, and varying degrees of shadow effect.
All of these have been provided to the County in document discov-ery and discussed in depositions; all of them lend flexibility and perspective to the base-case analyses presented in the Plan itself.
4.
The County's criticism of improvements to the Transition Plan is, at best, unconstructive.
If the goal of this proceeding is to see whether a feasible emergency plan for Shoreham can be developed despite the County's hostility, then there is no valid reason for attempting to freeze the plan artificially at some less than optimal stage.
The Plan is, and should be, a living document to be continually improved, and of whose development all parties will be kept timely informed.
5.
The County's suggestion that LILCO be punished by being required to file its testimony nearly two months before the l
0.
County does is ludicrous.
If anything, LILCO should be commended for having attempted, as it has with long, hard work, to put to-gather a comprehensive, timely revision to the Transition Plan and present it coherently at one time with an explanatory cover document.
The capriciously punitive remedy which the County seeks would be worth considering only if LILCO had been material-ly disingenuous in its approach to preparing the Transition Plan, though its harshness would not make it necessarily appropriate even then.
The fa.? 4 - that LILCO has been straightforward with the County in presenting the County not only with accomplished work but work in progress'-- more than the County can claim, see Part III.A below -- and the County has not been prejudiced in fact or in its preparation of testimony on Group I issues.0/
This aspect of the County's prayer for relief should be rejected outright.
II.
THE " REQUEST FOR CONFERENCE CALL"
~
The "Suffolk County Request For Conference Call" asks for a l
conference call to discuss Suffolk County's proposal to file S/
The fact is that another alternative for LILCO would have been to file testimony on November 18 based on Revision 1, but explicitly forecasting, and resting on, ideas expected to be in-l cluded in a forthcoming Revision 2.
LILCO rejected this alterna-l tive in favor of preparing and serving Alternative 2 as soon as poss!ble, notwithstanding the information already presented on l
discovery, to-enable the other parties to see it before filing testimony.
l l
.certain of its testimony that relates both the Group I and Group II issues with the Group II testimony.
According to the Cotaty, the testimony in question is to be sponsored by Messrs. Finlayson, Radford, and Minor and concerns the potential consequences of an accident at Shoreham and the likely health effects of an accident.
According to the County, this testimony will relate "directly and primarily" to Conten-tions 61, 6 4., 67, 69, 71, 72, and 73 and will also be related to "small portions of Contentions 23 and 65."
The County believes that the " consequence analysis and health effects portion of Con-tentions 23 and 65 are easily severable -- in terms of trial --
from the remainder of those contentions.
The County does not go into any detail about what its conse-quences testimony will be about, but one thing is clear:
the County proposes (1) to file testimony that is admittedly relevant to Group I issues some two months after the Group I testimony is to be filed or (2) now, after agreeing to the present division of l
issues, to renegotiate that division.
It would be quite improper to allow the County to file part l
of its Group I testimony two months late.
If LILCO receives the l
testimony on time, on November 18, it may well be that LILCO will structure.its cross-examination of the County's Group I witnessec differently, depending on the contents of the County's conse-quence analysis testimony.
LILCO may also prepare its own
witnesses for cross-examination by the County differently than if it had not~seen the County's testimony.
And LILCO may begin i
preparing rebuttal testimony, if such is needed, two months ear-lier than it would be able to under the County's proposal.
The two months' time may be important, for thus far LILCO has had little chance to learn the substance of the County's case on consequences analysis.
Counsel for Suffolk County instructed its witness, Mr. Minor, not to answer questions about that case during his deposition:
i SUFFOLK COUNTY COUNSEL:
Let me interject here an objection.
First of all, I will proffer for the record that Mr. Minor and Dr. Finlayson have i
had discussions, as Mr. Minor stated, about con-sequence' analysis, and.some of those have con-cerned the Shoreham Plant.
However, I am going to instruct the witness not-to answer any further with respect to de-scriptions of any of the analysis or discussions that he and Dr. Finlayson have had insofar as those are discussions that have taken place at the request of_the County's attorneys in connec-tion with the preparation of litigation in this case.
m.
LILCO COUNSEL:
Do you know, and this is only if you do know this, is Dr. Finlayson doing any in-dependent analysis that you're aware of about the Shoreham Plant?
l SUFFOLK COUNTY COUNSEL:
I object to the ques-tion and instruct the witness not to answer on the basis of my prior statement concerning at-torney work product.
Deposition of Gregory Minor, October 7, 1983, Tr. 25, 28.
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Allowing the litigation of "small portions" of Contentions 23 and 65 to be delayed two months is just as improper as al-lowing the County to file part of its testimony late.
The par-ties have gone forward so far based on the agreement reached among them, and ratified by the Board, some time ago.
LILCO in preparing testimony and is prepared to file it on November 18 in accordance with that schedule.
The County has cited no basis for its request for dispensation more persuasive than its tardily perceived convenience.
To allow the County to change the plan at this late date is impermissible, and the Board should reject the County's request.
III.
THE SC TRAFFIC MOTION i
In its Traffic Motion, filed last evening, Suffolk County expresses " outrage" over the fact that LILCO recently filed Re-vision 2 to the offsite emergency plan.
Suffolk County asks for two forms of relief.
First, it asks for a two-month delay in the time for it (but not LILCO) to file its testimony on certain traffic issues (Contentions 65, 23.D, and 23.H).
Sec-ond, it asks the Board to order that the offsite emergency plan be frozen in time so that the County will not have to cope with l
future revisions.
For the reasons set out below, LILCO opposes j
this motion.
A.
The County's Request To " Define The Data Base" We will address the County's proposal to freeze the emer*
gency plan in time first, because that is the most pernicious part of the County's proposal.
The precise County request is as follows:
The foregoing circumstances relating to Revision 2 of the LILCO Plan compel the County to ask the Board to define as pre-cisely as possible what the data base is --
that is the Plan -- which is to be litigated in this proceeding.
Such definition is es-sential if we are to avoid having a con-stantly moving target which affects not only the analyses and testimony which are being prepared by the parties, but also the record upon which the Board will base its findings.
Traffic Motion at 19.
This request is, LILCO submits, fundamentally unreason-able.
The LILCO Transition Plan -- indeed any emergency plan -- is a living document.
It changes over time as planning efforts progress and as circunstances change.
As the Commis-sion has said, emergency planning is a " fluid process, requiring regular updating, testing, and adjustment."
Consolidated Edison Co. of New York, et al. (Indian Point, Unit Nos. 2 and 3), CLI-83-16, 17 NRC 1006, 1011 (1983).6/
6/
The NRC licensing process too is a " dynamic one."
Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 1), ALAB-728, 17 NRC 777, 790 (1983).
In an analogous con-text the Appeal Board said that there is no hint in the FEMA /NRC Memorandum of Understanding of " freezing" either FEMA or the li-(footnote continued)
The changes that make up Revision 2, for example, came about in a number of ways:
during drills and exercises weak-nesses in-the procedures became evident for the first time; as planners worked with the plan, typographical errors were spot-ted; and of course changes had to be made as negotiations went forward with outside organizations that are a part of the plan.
1 (For example,' letters of agreement recently negotiated were in-cluded in Revision 2, and a number of the changes were necessi-a tated by recent discussions with the Department of Energy about the titles of the DOE personnel who will have emergency re-sponse duties.)
As each change (such as the above) that needs to be made comes to the attention of an individual in the LILCO emergency planning implementing organization, he completes a change form
~
1 and sends it to a. central location.
These change forms are ac-cumulated until there are a sufficient number of them to justi-fy issuing a formal revision to the plan.
These changes cannot be postponed indefinitely.(such as until after litigation l
ceases), because training, including drills and exercises, is ongoing and.must accurately reflect the plan.
LILCO is engaged I-(footnote continued) l l ~
censing proceeding to earlier and likely outmoded information.
l Southern California Edison Co. (San Onofre Nuclear Generating l
Station, Units 2 and 3), ALAB 717, 17 NRC 346, 380 (1983).
l l
I
. 9 not just in litigation after all but in implementing and improving an emergency plan for the protection of the public health and safety.
The timing of improvements to the plan sim-ply cannot be adjusted for the convenience of Suffolk County.
I!
.All this is to say that revisions to the LILCO Transition Plan have been made in the past, and more will be made in the future; indeed, we can virtually guarantee there will be a Re-vision 3 in the months ahead, though no one can foresee exactly when it will be issued.
A number of other observations bear on this issue, and we set them out here because.it is so important that the emergency plan not be artificially frozen in its present (or worse, a past) state.
The first is that it is probably the rule, rather than the exception, that emergency plans change during the course of litigation.
That is one of the reasons that emergen-cy planning findings, unlike other findings by NRC licensing boards, are " predictive" in nature.
See Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1103-04 (1983); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 1), ALAB-730, 17 NRC 1057, 1066 (1983).
The Indian Point Special Proceeding board recently faced this problem:
In particular, the proceeding was investigatory in nature, and we were charged with evaluating the level of emergency planning and preparedness at Indian Point; the level of planning and
4c preparedness,..however, was evolving so rapidly that.the adjudication, subject.to the formal procedures of 10 CFR Part 2, was unable to keep 4
pace.
Recommendations to the Commission, Consolidated Edison Company of New York, et al. (Indian Point, Unit No. 2), ASLBP 81-466-03-SP, 18 NRC __, slip op. 22 (October 24, 1983).
The second point to be made is that the reason each Revi-sion to the LILCO Transition Plan is as detailed as it is, is that the planners are being particularly thorough.
Many of the recent changes were to the implementing procedures, which are e
not supposed to be litigated.
The Waterford Appeal Board said that "the Commission never intended the implementing procedures to be required for the ' reasonable assurance' finding and thus to be prepared and subject to scruti,ny during the hearing."
Louisiana Power and Light Co. (Waterford Steam Electric Sta-tion, Unit 3), ALAB-732, 17 NRC 1076, 1107 (1983).7/ The level of detail required is, in fact, only the "overall concept of operation and essential elements" of advance planning.
Cincinnati Gas & Electric Co_._ (Wm. H. Zimmer Nuclear Power.Sta-tion, Unit No. 1), ALAB-727, 17 NRC 760, 770 (1983).
The I
i The Board was referring to an applicant's onsite procedures 7/
and based its. finding on a requirement that such procedures be 1
submitted to the NRC Regional Administrator no less than 180 days before the operating license is issued.
But there is every rea-son to believe the same principle holds for offsite, planning procedures.
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County complains essentially that it is receiving too much in-I formation, and this is because LILCO is producing more informa-tion than is usually provided in these proceedings.
The third point is that the County is in no position to complain, considering its past conduct.
After ov.ar a decade of cooperation with LILCO on emergency planning, in February, 1982 the County repudiated a contract with LILCO and embarked on a new effort to prepare a draft emergency plan, an effort that totally excluded LILCO.
Despite repeated requests by LILCO, the County stubbornly refused to permit LILCO to have any part in the planning process or any access to emergency planning in-formation.
This refusal included fighting LILCO's discovery efforts in " Phase I" of this proceeding; it included going to court to try to enjoin LILCO from going forward with offsite planning.
After eight months' work, during which true offsite plan-ning ground to a halt, the County's consultants produced a draft plan which by its own admission required further "devel-opment."
This was an understatement.
The further development that was needed included such items as implementing procedures;
' written agreements with hospitals, relocation facilities, gov-ernmental agencies, and the like; training, exercises, and drills for emergency workers; resolution of the question wheth-er bus drivers, firemen, and other emergency workers would
report for work during an emergency; public education; and in-tegration with the State and LILCO plans.
On February 18, 1982, the Suffolk County Legislature repu-diated its consultants' draft plan, and at that point LILCO was forced to prepare and implement an entire offsite plan under greater burdens than any planners have ever had to face before.
Under these circumstances.Suffolk County cannot reasonably com-plain that LILCO's new offsite plan is not a finished product.
n The fourth point is that Suffolk County is far and away better off at this point in the litigation, having received the latest Revision as soon as it was issued, than is LILCO, which is laboring under the burden of having virtually Suffolk Coun-I ty's entire case' hidden by claims of attorney-client privilege and. attorney work-product doctrine.
The attached letter (Irwin to Lanpher, November 2, 1983) (Exhibit 2 hereto), received by counsel for Suffolk County a week ago and not answered, illus-trates the problem and forms the basis for LILCO's Motion to 4
Compel Production of Documents being filed herewith.
The last point is that Suffolk County well knew that the LILCO Transition Plan is an evolving document and indeed that a revision was forthcoming..For example,.on October 17, 1983, LILCO counsel wrote counsel for the County pointing out that an i
" upcoming revision" of the plan would designate an additional person as Director of Local Response.
Earlier than that, in
our letter to the Board of July 21, 1983, advising that Revi-sion 1 would be forthcoming, we said as follows:
As is the case with all planning documents, LILCO expects to update the plan from time to time to reflect new information, FEMA and NRC Staff Reviews and suggestions from the emergency planners as they work with the plan.
Letter of July 21, 1983, from LILCO counsel to the Licensing
- Board, 2.
The letter to the Director of the NRC Office of Nu-clear Reactor Regulation from LILCO of July 28, which was served on all the parties, said the same thing.
We have no doubt that it is in the County's interest to prevent further revisions to the plan, because those revisions are made to improve the plan; indeed, a number of the Revision 2 changes were made in the hope of eliminating altogether some of the Group II contentions.
Whether the County welcomes im-provements to the plan or opposes them depends on whether the County is interested in the merits of the plan or simply in winning its case.
i l
B.
The Nature of the Revision 2 Changes In its motion, Suffolk County sweepingly asserts that Re-l f
vision 2 creates a "new data base" for issues raised in Conten-f tions 65, 23.D. and 23.H, Traffic Motion at 2.
The County goes l
on to allege that this new data base renders " major portions of 1
i i
the analyses, es
_ons, discovery and testimony.
com-pletely irrelevant," Traffic Motion at 6.
These assertions are simply not supportable upon examination of the material contained in Revision 2.
Suffolk County's concerns about the material contained in Revision 2 are premised largely on Figure 8 of Appendix A to the LILCO Transition Plan, which lists the traffic control posts and the control tactics to be used at each post.
Suffolk County asserts that changes in Figure 8 have extensively changed the traffic control scheme, Traffic Motion at 9, and in turn, the entire routing scheme for evacuation traffic, see Traffic Motion at 11.8/
In fact, no control tactics have been changed ir, Figure 8.
Some additional traffic posts have been added to Figure 8 and other posts, mostly in areas outside the EPZ, have been eliminated, but these changes have absolutely no effect on the routing of traffic at the designated intersec-tions.
This is plain from the text of the plan itself, as amended.
Instead, the major change in Figure 8 is a re-formatting of previous information.'/
8/
On pages 10 and 11 of its motion, Suffolk County implies that Table XII of Appendix A has been changed in Revision 2.
This is simply wrong:
No changes were made to Table XII in Revi-sion 2.
9/
The figure was reformattcd because of misunderstandings that had arisen regarding the meaning of the narratives contained in Revision 1 of Figure 8.
Thus, contrary to the County's implicit conclusion on pages 12 and 13 of its Motion, the formal changes, (footnote continued)
1 L. -
A review of other parts of Appendix A confirms that the changes to. Figure 8 were essentially cosmetic.
For example, none of the route maps, contained on pages IV-87 to -178, were
- changed in Revision.2, thus providing clear confirmation that the routing scheme had not been changed.
In addition, the evacuation time estimates contained in Table XIV were totally unchanged, suggesting that no model runs were revised, and hence that no routes were changed.10/ Again, all of these mat-ters are evident on the face of Appendix A.ll/
4 (footnote continued) r which include explicit consideration of every possible movement at an intersection, were designed to improve understanding of the Figure.
To spare Suffolk County the task of " interpreting the l
skeleton-like" content of the-new Figure 8, LILCO represents and stands ready to attest by affidavit (not possible to have pre-pared overnight) that no substantive changes were made to any posts not added or deleted by Revision 2.
The approximately 20
- new control posts in Revision 2 fall into two categories: posts that have been moved small distances to increase their effec-tiveness, and new posts added to facilitate flow.
Given the small number of these posts, the nature of the control tasks to be performed at them, and the total absence of their effect on
' routing assignments, they simply cannot be credibly argued to have a material impact on testimony on Contentions 65, 23.D and 23.H.
l 10/
It is important to note that the traffic control post infor-mation contained in Figure 8 represents the real-world applica-tion of the routing assignments produced by the traffic model.
Thus, if changes were made in Figure 8, then one would expect
- corresponding changes in the model runs and their results.
11/
It is apparently these changes on which_the County relies for the assertion tnat' massive amounts of work by the Suffolk County Police Department, apparently described in a submittal (footnote continued)
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- l In addition to its ostensible concerns about Figure 8, Suffolk County also recites a litany of other changes contained in Revision 2 which it claims are significant.
As is shown im-mediately below, the County is incorrect:
First, Suffolk County cites the " flashing lights" language contained in Figure 8 to argue that a totally new control tac-tic is being applied, Traffic Motion at 15.
These flashing lights are nothing more than small flashers which will be hooked onto every third cone to improve cone visibility at night.
Second, Suffolk County notes changes in roadway capacities contained in Table IV of Appendix A and argues that its consul-tants will require additional time to review these changes to understand their bases, Traffic Motion at 16.
In the deposi-tions of the County's traffic consultants, counsel for LILCO asked on numerous occasions about any concerns these witnesses may have about the traffic capacities contained in Table IV.
(footnote continued) sent under seal to the Board but not made available to LILCO on discovery or otherwise, have been rendered obsolete overnight.
-For the reasons stated in the text, LILCO strongly doubts that this work, whatever its value, has been materially affected.
In addition, LILCO notes that during their depositionu in early September, each of the police traffic officers deposed --
. Roberts, Monteith, McGuire -- either indicated his lack of knowl-edge of~any roadway capacity or control strategy studies by the SCPD, or was instructed by counsel not to answer questions.
The responses to these questions repeatedly suggested that l
while these witnesses may have had some instinctive concerns about capacity values reported in Table IV, their review had not been very detailed, and they could not point to specific disagreements with the stated capacity of given roadways.
- See, e.g.,
Deposition of Philip Herr Tr. 152-154, Deposition of Bruce William Pigozzi Tr. 67-68, and Deposition of Peter A.
Polk Tr.96-106.
The County's sudden interest and assertion of need for additional time to review these capacity changes is striking, given these earlier discovery answers.
In addition, in Discovery Request 25 of July 18, 1983, Suffolk County re-quested'"all data used to compute the intersection and link capacities" in Appendix A.
This information was supplied on August 5, 1983; and coupled with the description appearing on pages III-10 to -16 of Appendix A, enabled Suffolk County, from that date on, to calculate exactly each of the capacities that appear in Revision 2 of Table IV of Appendix A.
The County ap-parently never did so.
The County should not be heard now, three months later, to complain that it was unfairly surprised by the changes in Table IV.12/
12/
Suffolk County's description of the changes in roadway capacitias in Table IV leaves the reader with the impression that significant increases have been made to roadway capacities in the EPZ network.
This is not the case.
Only 6 of the approximately 190 link capacities-in Table IV were increased, and a greater number were reduced -- one roadway by a factor of 5.
Of the six capacities that were increased three were increased by a factor (footnote continued)
i Third, the County cites numerous changes in the offsite procedures as an additional ground for seeking a filing delay, Traffic Motion at 16-17.
Examination of this argument reveals its superficial nature, even assuming the pertinence of offsite procedures to litigation, since in fact, the changes in the off-site procedures largely mirror changes made in Appendix A and other parts of the Plan.
The long and short of it is that the County's cries of an-guish over the effect of Revision 2 on '.ts preparation of tes-timony on traffic-related issues are saseless, and its argu-ments should be rejected in entirety.
IV.
CONCLUSION The changes to the Transition Plan in Revision 2 do not require lengthy analysis:
the effects of those that relate ma-terially to the traffic contentions (23.D, 23.H, 65) are readi-ly ascertainable; the others do not have a material effect.
(footnote continued) of two or less, to levels still equal or below levels suggested by the Highway Capacity Manual 1965 for comparable roadways.
The remaining three roadways were increased in capacity by factors of 3 to 3.6.
The increase in two of these roadways was strictly ac-ademic since during a planned evacuation no traffic would be ex-pected on.these links.
The capacity of the third roadway was in-creased to reflect the use of two lanes on an access ramp to the Long Island Expressway; again, this increase was within the lim-its recommended by highwa.y capacity manuals.
Nor has Suffolk County been surprised by Revision 2 in fact.
Further, there is no constructive basis for " freezing" the Transition Plan at any arbitrary stage of its development.
Thus the County's Traffic Motion should be denied in entire-ty.13/
Similarly, the relief sought by the County's " Request for Conference Call," being based on nothing more substantial than the County's arbitrary notion of its own convenience, should be denied.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY
/
R Doniid P.
Irwin James N. Christman Lee B. Zeugin Kathy E. B. McCleskey Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATED:
November 10, 1983 13/
If the Board, out of an abundance of caution, were to deter-mine that some deferral of the filing date for Contentions 23.D, 23.H, and 65 is advisable, it should consider permitting a de-ferral of_ testimony on these issues of not more than 14 days for all parties, with corresponding slippage of other internal prehearing deadlines for these issues only.
This would still permit hearings to start on December 6 on behavioral issues, 2nd ensure a backlog of prefiled testimony ready for litigation when hearings resume on January 3, 1984.
EXHIBIT 1 HUNTONSC WILLIAMS 707 ras? MAIN statti P.o.somes35 Racaown,Vsmozar:A aaals
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November 9, 1983 c,..6
....,... 8357 Karla J. Letsche, Esq.
BY TELECOPIER Kirkpatrick, Lockhart, Bill, 1
Christopher & Phillips i
1900 M Street Eighth Floor Washington, DC 20036
Dear Tip:
l This responds to your letter of the 7th concerning I under-Revision 2 to the Shoreham Transition Baergency Plan.
stand that you received copies of it on November 8, since Larry Lanpher told Kathy McCleskey yesterday that you and Chris McMurray had spent a couple of hours going over it.
A "roadmap" cover letter, addressed to Barold R. Denton (SNRC-973, dated November 7, 1983), should have accompanied Revision l
2 as received by you.
As that letter indicates (page 3, 1 2)),
only a relatively small portion of Revision 2 relates to the
" Group I" contentions, these pages have been separated from the others, and the areas of change are clearly marked.
If you have any questions about Revision 2, please give me, Jim Christman or Kathy McCleskey a call.
l Sinc ely yours, V
Donald P. Irwin 91/730 cc:
Bernard M. Bordenick, Esq.
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Noveaber 2, 1983
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Lawrence Coe Lanpher, Esq.
BY FEDERAL EXPRESS Kirkpatrick, Lockhart, Bill, Christopher & Phillips L
1900 M Street, N.W.
Eighth Floor Washington, D.C.
20036
Dear Larry:
In recent discussions about the likely content and struc-ture of emergency planning testimony, I have communicated to l
you LILCO's concern about the possibility of significant and prejudicial surprise to LILCO in the positions to be taken by the County in its testimony ~, and even more in studies, raports t
This and other documentation t'o be attached to such testimony.
apprehension is based on the County's extensive resort to the attorney work product privilege in interrogatories and deposi-tions, on matters relating to subjects within the scope of the As a result it has been frequently very County's contentions.
difficult, and sometimes impossible, to ascertain even the wit-nesses' views on specific aspects of LILCO's transition plan, The attached summary of auch less the bases for thobe views.
the County's assertions of privilege in discovery provides a qualitative sense of the extent of the County's use of this means of avoiding discovery, i
LILCO has not sought to compel production of the totality of the matters on which a privilege has been itsserted because, t
[
in some cases, the assertions appeared tenable when made on the Nev-basis that work was apparently in progress at that time.
ertheless, it would not be surprising if some of the matters within the assertions of privilege had since become suffi-ciently polished topical reports or analyses to be used as at-i tachments to or citations in the County's direct testimony.
Some of these may have been completed by now; others will, I expect, be finished in the coming weeks.
(
. HUNTON St WILLIAMB d
This letter does not request production of all materials as to whic~n a privilege has been asserted.
It does r2 quest the timely production of topical reports, studies or other docu-ments relating to those matters on which a privilege was as-sorted, when such documents are completed.
If such documents are completed now, they should be provided now rather than de-laying until the profiling of direct testimony, in order to avoid unnecessary and unfair surprise.
I am aware of your view that the discovery rules impose a duty to supplement or correct an answer only where subsequent events make it appear that the original answer was incorrect Even if your understanding of the rules' minimum when given.
requirements is correct, which I do not concede, they do not address the current situation, in which witnesses are appar-ently still developing their views during the course of discov-ery and there is a substantial interval between the close of discovery and the filing of testimony.
Assume, for example, that a witness, when asked a question on a given subject on deposition, had answered that he had generated no specific in-formation on that subject; then when asked whether he was con-ducting any work on the subject or had any views on it, had been instructed not to answer on the basis of priv11eger that at the time of the deposition he had been in the process of ob-taining information on that' subject; and that such information was subsequently reduced 'to writing in a topical report, study, Un3er your theory, the first time analysis or other document.
another party would be entitled to learn of the witness' infor-mation or views, or even what type of information he was ob-taining, would be when direct testimony was filed, despite at-Such a sequence of events tempts to discern them in discovery.a frustration of the intended would be, in my judgment,There are remedies for surprise result-purposes of discovery.
ing from such a course of events, but none of them is as desir-able as the avoidance of surprise.
On behalf of LILCO, I therefore request that the County make available to LILCO upon completion any written studies, reports, analyses or other documents, formal or informal, pre-Pared by or under the direction of the County's witnesses on emergency planning issues, that relate to matters on the at-tached list, an.to which discovery has been prevented by the LILCO is willing, of course, to do assertion of a privilege.
the same for the County; indeed, I am not presently aware of any studies, reports or analyses prepared or being prepared by or under the direction of LILCO's witnesses and relating to matters inquired of or discovery by the County, which have not I am not referring to already been turned over to the County.
every group of papers generated on any of these subjects, just I.
Henrow C2 WILLIAwo i
)
to documents which, by their nature, could be used to support or oppose another party's position on the issues to which they relate, and which are intended to be used either as attachments to testimony, cited references in testimony, or substantiveArbitrarily, I w portions of, testimony.
these documents to those completed in 1983.
I would appreciate hearing your response to this request at your earliest convenience.
Sincerexy yours, Dona d P. Irwin 91/730 Attachment t
A f Discovery Objected to on the Basis of the work Product Privilege i
Traffic Model Johnson /Ziegler followup 63 9/16/83 10 Mile EPZ Traffic Analysis Interrogatories 3 and 4 8/25/63 Interrogatory 5d 9/19/83 Interrogatory 7d 9/19/83 Tr. 33-34, 57 Kanen Tr. 123-124, 127 Herr 20 Mile EPZ Traffic Analysis Interrogatory 3 and 4 8/25/83 Interrogatory 5d 9/19/83 Interrogatory 7d 9/19/83 c
Tr. 33-34 Kanen
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Evacuation Time Estimates Interrogatory Sa, 5b, 5c 9/19/83 l
Interrogatory 5d 9/19/83 9/19/83 Interrogatory 7d Tr. 33-34, 70, 79-81, 85-89 Kanen Tr. 175-178 Berr Tr. 43-44 Pigozzi Tr. 131-132, 142-143, Polk 166-168, 170 Evacuation of Special Facilities Interrogatory 6a, 6b, 6f 9/19/83 Interrogatory 6d 9/19/83 Tr. 88-89 Kanen Barris Tr. 50 Mobilisation Tr. 70 Kanen Tr. 158-159 l
Folk
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Role Conflict Interragatory 7d 9/19/83 Command and Control Interrogatory 7d 9/19/83 Sheltering Interrogatory 8a, 8b, 8c 9/19/83 Interrogatory 8d 9/19/93 Minor Tr. 76 Radiological Monitoring Interrogatory Sa, 8b, 8e 9/19/83 Interrogatory 8d 9/19/83 Consequence Analyses Interrogatory 8a, 8b, 8e 9/19/83
(
Interrogatory 8d 9/19/83 Minor Tr. 25-26, 28-29, 39-40, 61-63 Surveys Johnson /Ziegler followup 93, 67 9/16/83 Saegert Tr. 147-150, 153 Special Facilities Tr. 50, 74-75, 79, 86-91 Barris View of LILCO Transisition Plan Saegert Tr. 142-143 Public Information Tr. 147-150, 166 Saegert
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