ML20087G468
| ML20087G468 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/16/1984 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20087G471 | List: |
| References | |
| OL-3, NUDOCS 8403200031 | |
| Download: ML20087G468 (71) | |
Text
.
LILCO, March 16, 1984 IlELMED-...ESPONDENCQ 90C;M U O n ti-UNITED STATES OF AMERICg NUCL7AR REGULATORY COMMISSIOdMS 19 A?0:47
~ ..
L Before the Atomic Safety and Licensing Board In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
. ) (Emergency Planning (Shoreham Nuclear Power Station, ) Proceeding)
Unit 1) )
LILCO'S RESPONSE TO SUFFOLK COUNTY AND NEW YORK STATE MOTIONS TO STRIKE PORTIONS OF LILCO'S GROUP II-A TESTIMONY On March 9, 1984, Suffolk County filed its "Suffolk County Motion to Strike Portions of LILCO's Group II-A Testimo-ny" (hereinafter " County Motion"), and New York State filed its
" Motion of Governor Mario Cuomo, Representing the State of New York, to Strike Portions of the ' Testimony of Matthew C.
Cordaro and John A. Weismantle on Behalf of Long Island Lighting Company on Phase II Emergency Planning Contention 92 (State Emergency Plan)' and Statement of Governor Mario Cuomo, Representing the State of New York, in Support of the 'Suffolk County Motion to Strike Portions of LILCO's Group II-A Testimo-ny" (hereinafter " State Motion"). For the following reasons, LILCO opposes the County's and the State's motions. We take up the County's generic arguments in part I of this response, and the County's and State's objections to particular portions of the LILCO testimony in part II of this response.
5403200031 840316 PDR ADOCK 05000322 0 PDR b
r
_2-I. The County's Generic Arguments
?
In part I of its motion Suffolk County makes five argu-ments that it says render inadmissible " multiple portions" of LILCO's testimony. We address below those five arguments in the order in which the County makes them.
A. So-Called " Legal Conclusions" Suffolk County claims that opinions by LILCO witnesses that portions of the emergency plan meet NRC regulations or-guidelines are improper " legal conclusionc" and should be struck. Here the County ignores both the nature of NRC regula-
- tion and the nature of tne witnesses' testimony itself. The County would have the Board ignore the practical fact that the people who build, operate, and regulate nuclear power plants, and the people who develop provisions of emergency plans, most of whom are not lawyers, do so in accordance with NRC regula-tions and guidelines. Indeed,,this Board -- of which two mem-bers are not lawyers -- will be called upon to decide whether the LILCO Transition Plan complies with NRC regulations and guidelines. When management planners and technical. experts de-sign particular provisions of an emergency plan for a nuclear plant, .they do so-with'whatever NRC guidance exists before them, and the principal objective that guides them is to meet l
l l' l
l
6
, - ns NRC standards. In parti'cular, guidelines like NUREG-0654 are as much technical requirements as lega's ones. It is senseless to propose that the people who in fact apply these regulations and guidelines be prohibited from testifying as to how they have applied the regulations and guidelines and whether they think they have complied with them.
The fundamental flaw in the County's argument is re-vealed by the following passage from the County's motion to strike:
It would be proper for (LILCO's experts]
to testify regarding what is provided in the LILCO Plan or to quote the regula-tions, and even to state khat they understand the regulations to require.
However, it is for the Board to determine whether LILCO has complied with the regu-lations and to provide an interpretation of regulatory requirements.
(County Motion at 4) (emphasis in original). LILCO and the County apparently agree on the obvious proposition that it is ultimately for the Board and the Commission to decide what the regulations require and whether the LILCO Transition Plan complies with the regulations. That decision will-be facili-tated by the testimony of experts as to how they believe the regulations and guidelines have been applied in developing the LILCO Transition Plan. Indeed, the County, recognizing that it is necessary for experts testifying in NRC proceedings to
i i
_4 discuss applicable regulations and guidelines in order to pro-vide the framework for their testimony, asserts that it is proper for such experts to testify concerning "what they understand the regulations to require." (County Notion at 4)
(emphasis in original). For purposes of ruling on the admissi-bility of the expert's testimony, there is simply no practical distinction between the statements "I understand that the regu-lations require . . ." and "the regulations require . . ."; in either case, the witness is laying a foundation and framework for his testimony which, altogether too obviously, is not bind-ing on the Board as a conclusion of law. Implicit in any wit-nes=' statement as to applicable regulatory standards is that he is reflecting his understanding of the standards. The Coun-ty would have the Board convert the admissibility of the testi-mony into a transparent game of " Simon Says," by striking por-tions of LILCO's testimony which do not incant "I understand .
." while retaining the County's experts' opinions as to regu-latory requirements simply because they are preceded by the County's proposed incantation.
The County's motion to strike divides LILCO's alleged transcressions as to statements of " legal conclusions" into three categories. The first category includes instances where LILCO witnesses express their view that specific provisions of
-_ _ _,4 ___ ._. ~ . . __ ___ _.. . _ _ _
1
] ,
the LILCO Transition Plah comply with specific regulatory re-4 quirements. As noted above, there is no reason in logic or law to exclude this testimony.
The County's second category includes instances.where l i LILCO witnesses "have attempted to interpret what the regula-tions or other laws require." (County Motion at 4). Most of the specific instances cited by the County (County Motion at
)
4-5) involve explanations as to why certain provisions of the h
i LILCO Transition Plan were drafted as they were, or responses to contentions which themselves state or imply conclusions as to regulatory requirements. Certainly the LILCO witnesses are entitled to explain why specific provisions of the LILCO Tran-sition Plan were developed _as they were, and to state why they disagree with the County's contentions.
1 The County's, final category includes instances where l
l LILCO witnesses " cite to decisions in other emergency planning E
proceedings." These instances are much closer to " quoting reg-ulations," which the County maintains would be proper (County-
- Motion at 4), than they.are to " purely legal citation . . . for l post-trial attorney briefs" (see County. Motion-atf6);-the por--
tions of testimony the County seeks to strike only' report spe-cific conclusions of the cited decisions. These citations.are used to explain why specific provisions of the LILCO Transition i
Plan are framed the way they are.
i l
l ' ~h
< .__ .- ..-,e.. - _.--.-,,....,,,,-m,,--.. _ - . . - . - , - - . . , - L _a._?-,,._- .
. = _ _ . .
In short, the LILCO testimony is proper in that it pro-vides a framework for the testimony of LILCO's experts. If, however, the Board sustains the County's motion to strike al-leged " legal conclusions," then additional portions of the County's testimony must also be struck for the same reason.
LILCO moved to strike certain portions of the County's testimo-ny that stated legal conclusions only on the ground that the l County's statements of regulatory requirements were without basis because they were incorrect as a matter of law, not sim-ply because the County's witnesses-purported to make statements as to regulatory standards. See, e.g., LILCO's Motion to Strike Portions of the Direct Testimony of Deputy Chief Inspec-tor Richard C. Roberts, et al. on Contentions 24.T and 59, page 1-2. If LILCO witnesses are not permitted to state what they believe applicable regulations and-guidelines require and how those requirements have been applied in developing the LILCO Transition Plan, then the County's witnesses should not be per-mitted to state what they " understand" regulations and guidelines to require (see, e.g., Direct Testimony of Deputy Inspector Regensburg, et al., Regarding Contentions 20 and 55-S8, p. 4, lines 1-8).
1 1
, - , , e .* -
,y . -.vy -e, y ---*i ,- , w~,
6 " O Similarly, in a number of instances in the County's tes-timony, County witnesses are asked to state whether they agree with certain contentions, which contentions themselves contain express or implied assertions as to regulatory requirements.
In each such instance, of course, the County's witnesses state that they agree with the contention (see, e.g., Direct Testimo-ny of Deputy Inspector Regensburg, et al., Regarding Conten-tions 20 and 55-58, pp. 5-6, 13, '2, 24). If LILCO's witnesses are not permitted to testify that they disagree with the Coun-ty's contentions because the LILCO witnesses do not believe ap-plicable standarcs require certain things, then certainly the County's witnesses should not be permitted to testify that they agree with contentions that assert that provisions of the LILCO Transition Pl.in are "in violation of" expressly stated or im-plied regulatory standards (see, e.g., id.). If the County's motion to strike " legal conclusions" is granted, LILCO will promptly provide the Board with a list of additional portions of the County's testimony that must be struck in order to pro-vide parity of treatment of LILCO and County testimony.
B. ' Pre-1982 Planning Efforts The County claims that testimony about efforts by Suffolk County plannere on which the present LILCO Transition
-8 j
Plan is based are "not pertinent" to the contentions in this proceeding.
LILCO disagrees. The pre-1982 planning efforts by the County are relevant for two reasons. First, they are relevant as useful background information. For example, when the Coun-ty's testimony repeatedly says that "LILCO's" EPZ boundary is inadequate in one way or another, it obviously is useful to have on the record that the boundary was drawn by Suffolk Coun-ty planners in consultation with New York State officials.
Second, the information about.what Suffolk County plan-ners did pre-1982 is useful as rebuttal to Suffolk County's present position. It cannot be used in the customary sense as
" prior inconsistent statements" of individuals on cross-examination, because Suffolk County has elected not to present as witnesses any of the people who were involved in the pre-1982 planning effort. Howaver, it does point out unexplained inconsistencies in position over time of professionals per-forming the same or comparable functions or analyses in the normal course of business for the same organization. The most .
efficient way to get it into the record, then, is to include it as part of LILCO's testimony, sponsored by LILCO witnesses who, as a matter of fact, were themselves involved in the pre-1982 planning with the Suffolk County planners or who supervise other LILCO employees who were involved.
l l
l l . - - - , , ,
Suffclk County also suggests that using only its pre-1982 planning efforts, and not its later work by outside con-sultants, is somehow misleading. This is not the case. In the first place, to the extent that the later work is relevant and 2
admissible in this proceeding, Suffolk County itself can be ex-pected to present it. More important, Suffolk County ignores one crucially important distinction: the planning done by Suffolk County pre-1982 was guided by NRC regulations and guidelines; the later planning effort that Suffolk County now chooses to rely on did not purport or attempt to comply with NRC guidance but applied completely different standards devel-oped by Suffolk County itself. The short of the_ matter is that the pre-1982 planning efforts in large part are relevant to compliance with NRC regulations and guidelines, and thus to this proceeding, while the later efforts in large p rt are not.
C. Other Nuclear Utilities Suffolk County next alleges that LILCO improperly at-tempts to introduce evidence regarding other nuclear facili-l ties. LILCO understands that Suffolk County does not want the Beard to hea'r that LILCO is.doing as much as or more than other-utilities in the country. That is not, however, a reason for striking LILCO's testimony.
l l
I r - - - -
, r-- - - - - - - r >
Information about how the regulations and guidelines have been applied elsewhere is relevant to how they should be applied at Shoreham. The application of the rules by the NRC Staff and by other licensing boards creates a sort of " common
- law," which sheds light on what the standards mean in practice.
And, as is well known, the way in which an administrative agen-cy interprets its rules is relevant to what those rules mean.
Suffolk County's argument would allow every other nuclear power plant in the country to meet the regulations in a certain way, and yet would prevent LILCO from meeting the same regulations in the same or a more comprehensive way. Suffolk County is, of course, free to make that sort of argument, but it should not be given the unfair advantage of striking the evidence that-shows its arguments are contrary to NRC practice.
By a combination of its araument that LILCO. witnesses e
should not be allowed to give " legal opinions" and its argument that LILCO should not be allowed to introduce evidence of what other utilities do to comply with NRC regulations, Suffolk County attempts to limit the information before the Board about what the NRC requirements mean to only.those things that have made their way through the litigation process and have been ad-dressed in reported NRC decisions that can be cited in a legal '
brief. Restricting the Board in this manner would be most-r n g .m, -- , - r,,n
unwise. While many of Suffolk County's objections to provi-sions in the LILCO Transition Plan are at a level of detail that have not been brought to the forefront in reported deci-sions, provisions similar to those in the LILCO Transition Plan have b'een incorporated into other approved plans that LILCO witnesses have reviewed or, in some cases, have helped to de-velop. Preventing LILCO witnesses from testifying as to these facts would shut off highly probative evidence as to the ac-ceptability of provisions of the LILCO Transition Plan.
Finally, the County's suggestion that LILCO witnesses are " incompetent" to testify as to similarities between the LILCO Transition Plan and other plans misses the mark. LILCO witnesses have looked to other plans in devising and evaluating the LILCO Transition Plan. They are competent to testify as to the content of any provisions of any other plans they have re-viewed. If the County believes provisions in other plans are not comparable to provisions in the LILCO Transition Plan, the County may test the witnesses' conclusions or point out any
~
differences in cross-examination; indeed, that is one of the principal uses of cross-examination.
l D. " Speculation Regarding Future Events" Suffolk County also seeks to prohibit LILCO from testi-fying about what it will do in the future. Apparently what the County is doing is rearguing its earlier motion to " define the data base," a motion it has already lost. See Suffolk County Motion for Change in Schedule (Nov. 9, 1983). Its present mo-tions to strike should be denied for the same reasons that its request to " define the data base" was denied earlier. See Mem-orandum and Order Regarding Motion for Change in Schedule.etc.
(Nov. 14, 1983).
Apart from that, the County's proposal is intemperate.
In the first place, it goes against the principle, well estab-lished in NRC case law, that emergency planning findings are
" predictive." For that matter, emergency planning by its na-ture involves people testifying about what they will do in-the unlikely and highly speculative event of an emergency at a nu-clear power plant.
In the second place, the County's argument apparently seeks to pin LILCO down to emergency planning provisions that are less effective than they could be. If LILCo. identifies ways in which the emergency plan could be improved, then it must be allowed to make those improvements. The public health and safety demand nothing less. If LILCO is allowed to make i
4 l
1 improvements, then it must Le allowed to tell the Board what really will be done, rather than what outdated documents say will be done. What Suffolk County wants LILCO to do is either to stop trying to improve the protection of the public or to give incorrect testimony based on outmoded plans. The latter would probably violate NRC law; the former, while it would give Suffolk County a tactical litigation advantage, has nothing else te recommend it. It is based on a false view of the NRC hearing process as a game in which both players start with a
{ certain number of pieces and are limited to those same pieces throughaat.
The County may be objecting simply because it is more difficult to litigate a plan that changes from time to time.
This problem is inherent in NRC practice. Moreover, had Suffolk County itself not caused over a year's del'ay in this
. proceeding while it fruitlessly pursued its own emergency plan-ning, and had it not scrapped, without warning, previous years of emergency planning work, then perhaps the offsite emergency-plan, whether the County's or LILCO's, would today be more of a finished product (it can never be rendered completely unchanging). But that is not the case, and Suffolk County must now live with the fruits-of its own activities, as the rest of us must.
l l
l L >
E. Dr. Cordaro The County then moves to strike Dr. Cordaro as a witness from all LILCO panels. This, of all the County's current re-quests, comes perhaps the closest to being frivolous.
The County makes a number of strong statements about how pitifully unqualified Dr. Cordaro is:
Dr. Cordaro must be struck as a witness on these answers because Dr. Cordaro does not quality as a[n] expert on emergency planning matters.
LILCO has the burden of demonstrating that Dr. Cordaro is qualified to sponsor this testimony and such demonstration should have been in the testimony or in Dr. Cordaro's statement of qualifica-tions. Since it is nowhere to be found, LILCO has failed to demonstrate that Dr. Cordaro is qualified and he must therefore be struck.
Dr. Cordaro, however, is not a planner.
To our knowledge, he has never been in-volved or participated in any way in emergency planning or in any other aspect of planning which would render him quali-fied to provide the foregoing testimony.
County Motion at 17, 18. Curiously, the County does not cite its own voir dire examination of Dr. Cordaro, during which he said this, among other things:
1
l l l l
Witness Cnrdaro [ sic] I've been in-volved in various ways in emergency plan-ning for some 15 years. Initially, when Shoreham was in the construction permit licensing stage, I did review and con-tribute to sections of the preliminary safety analysis report on emergency plan-ning. I did provide some testimony, not a significant amount in those days, in construction permit hearings, in the NEPA phase of the hearing, addressing emergen-cy planning issues. I did get involved from an emergency planning basis on the siting of Shoreham, looking at 10 CFR 100 1ssues, whether indeed the plant would meet the siting criteria, dose levels. I did perform independent ce.lculations on the transport time distribution of ra-diological accidents and what their im-pact health-wise would be very early on in the project itself. I did teach a graduate course at New "ork Polytechnic Institute which had, as one of its con-cepts, and addressed the technical fac-tors associated with umergency planning.
I am the Chairman of the Atomic In-dustrial Forum Technical Advisory Group for the National Environmental Studies Project, which is right now carrying on a study of emergency planning, evacuation sheltering, and technical factors associ-ated with that.
I have interfaced with Federal, State, local regulatory bodies and gov-ernmental bodies in emergency planning ,
for some 15 years, and have testified in many proceedings on emergency planning.
Tr. 843-44 (December 6, 1983). The short of the matter is that the County had an opportunity to discredit Dr. Cordaro's quali-fications and failed.
l
l i
Equally important, the test of a witness's qualifica-tions to testify is ultimately whether he can contribute to the record -- that is, whether he can answer the questions put to him. Suffolk County has failed notably to point out any areas l
in which Dr. Cordaro displayed a significant lack of knowledge upon questioning duting the " Group I" litigation. Even less is the County able to establish that Dr. Cordaro will not be able to provide answers to questions on the Group II-A testimony.
If the County believes Dr. Cordaro lacks knowledge of the is-sues, it can attempt to establish that by cross-examination.
Other weaknesses in the County's position come to mind t
as well. For example, the County did not move to strike Dr.
Cordaro from any of the Phase 7. onsite emergency planning tes-
- timony, nor did it move to strike him fron the Phase II Group I' i
testimony on " role conflict," " shadow phenomenon," or evacua-tion timo estimates. The County has decided quite belatedly-that Dr. Cordaro is unqualified.
Finally, part of Suffolk County's complaint appears to
- be simply that Dr.~Cordaro has a management position and that, while he is responsible for emergency planning, he is not in-volved with day-to-day details. This is, of course, no reason to strike a witness. Indeed, in our experience,1some licensing boards have insisted on witnesses from upper management in I
l l
1
order to assess management's attitudes, objectives, and prio-rities. There are plenty of other witnesses who are 'volved with day-to-day details; Dr. Cordaro is uniquely able to offer a higher management perspective on emergency planning , issues.
The motion to strike him from the witness panels has no merit whatsoever.
~
1 II. The County's and State's Objections to Particular Portions of the LILCO Testimony Part II of Suffolk County's motion addresses " discrete additional reasons for striking particular portions" of LILCO's.
testimony. In part II of this answer we will proceed document-by document and address both the County's generic objections and its " discrete additional reasons." In addition, we address the State's objections, all of which go to LILCO's testimony on Contention 92, in conjunction with the County's objections to testimony on that contention.
LILCO Testimony on Contention 20 LILCO's testimony on Contention 20 contains question 6, wh:.ch poses the question "How does LILCO propose to comply with 10 C.F.R. Section 50.47(b)(5)?" Suffolk County seeks to strike that part of LILCO's response to the question (p. 4, Ans.'6,
~
first sentence) in which LILCO witnesses state that "the LILCO
Transition Plan complies with 10 C.F.R. Section 50.47(b)(5) through its Prompt Notification System and the Emergency Broad-casting System" based on the County's generic argument that it is a legal conclusion (County Motion at 3). The statement made by LILCO witnesses is not a legal conclusion concerning the in-terpretation or scope of regulations but, rather, reflects the way in which LILCO and its emergency planners have attempted to ccmply with the requirements of 10 C.F.R. Section 50.47(b)(5).
Suffolk County moves (County Motion at 4) to strike page 6, answer 13, lines 1-2 of the LILCO Contention 20 testimony on l
the ground that it is a legal conclusion. This single sentence is simply a general introduction to the three sentences th'at follow, which the County does not seek to strike and which are clearly based on past events and information about FCC prac-tice. For this reason, and the generic reason stated in part I.A above, the County's motion to strike should be denied.
Suffolk County moves (County Motion at 14) to strike lines 13-21 on page 6 of LILCO's testimony on Contention 20.
The County alleges that "LILCO's discussion on a procedure and other matters it expects to establish with WALK is unreliable and purely speculative." The County moves to strike-page 8, answer 15, the last sentence of the testimony because
"[d]iscussion of future EBS agreements is speculative." As a
+
. r , - ,-
this Board is well aware, LILCO is in the process of finalizing certain procedures and negotiating agreements with additional I
outside organizations. The testimony in question is not specu-lative, because it documents what LILCO is currently doing and states LILCO's expectations based on those regulations.
Finally, the County moves (County Motion at 18) to.
i strike Dr. Cordaro from the witness panel on Contention 20 based on its generic argument that he is unqualified. LILCO opposes that motion on the grounds stated in part I.E, above.
LILCO Testimony on Contention 21 and 21.C a
Suffolk County seeks to strike (County Motion at 4) the statement in LILCO's testimony on Contentions 21 and 21.C that 4
"[t]he regulations and guidelines do not suggest that LILCO.
should provide special emergency planning information in Spanish when there are only 292 Hispanic residents (of over 100,000 residents) in the EPZ who speak English poorly or not at all" (p. 7, Ans. 7, lines 1-5). The County alleges that this testimony improperly interprets what the regulations and guidelines require. LILCO disagrees. The testimony merely states that the regulations and guidelines do not include lan-guage that would require LILCO to provide special emergency planning information in Spanish. Moreover, as emergency
planners, LILCO witnesses are required to apply the guidelines and regulations to draft emergency plans; clearly, within that 4
context, they have an cpinion as to whether the LILCO Transi-tion Plan complies with what is understood by the industry to be the scope of the regulations and guidelines.
LILCO Testimony on Contenti_on 22.D Suffolk County moves to strike (County Motion at 4) two portions (p. 6, Ans. 5, all; p. 21, Ans. 29, lines 3-8) of the testimony on Contention 22.D on the ground that the opinions by LILCO witnesses are improper legal conclusions. First, Suffolk County states that all of the ansuer to question 5 appearing at page 6 of LILCO's testimony on Contention 22.D should be struck. An examination of the answer to question 5 demon-strates, however, that the LILCO witnesses are simply stating their understanding of what NRC regulations and guidelines tell them to do. As noted in part I.A above, the County's own mo-tion states that "[i]t would be proper for them [the LILCO wit-3 nesses) to testify regarding what is provided in the LILCO Plan or to quote the regulations, and even to state what they' understand the regulations to require."
f l
~
Also, sentence 2 of the response to question 5 states that "the regulations and guidelines do not state that the boundary of the EPZ should be extended to include entire polit-ical or jurisdictional subdivisions." This is not a legal con-clusion; it is the observation that the regulations "do not state" that the boundary of the EPZ must include entire politi-cal or jurisdictional subdivisions, and thus a statement of what the witnesses understand the regulations to requ'.re.
In addition, sentence 3 of the response to question 5 states that emergency planning principles, as well as the guidelines and regulations, suggest that the EPZ boundaries should follow the list of identifiable landmarks outlined above. As emergency planners, LILCO witnesses are qualified to testify concerning what emergency planning principles require in an emergency plan. The County's motion to strike page 21, answer 29, lines 3-8 is subject to the same response (see part I.A above).
Suffolk County has moved (County Motion 9) to strike substantial portions of the testimony on Contention 22.D on the 4
ground that discussion of how Suffolk County and New York State planners set about arriving _at an EPZ boundary is not relevant to the issue raised.by the contention:
pp. 9-10, Q&As 10-12
- p. 10, Q&A 14 4
y '~r=
- p. 15, lines 7-10
- p. 22, last sentence Attachments 4 and 5 Contrary to the County's statements, the history of the LILCO EPZ boundary is relevant. What is evident from LILCO's testi-mony and Suffolk County's testimony is that planners must exer-cise judgment when defining a 10-mile EPZ boundary, that plan-ners may define the exact location of a 10-mile EPZ boundary I
differently, and that there is not only one appropriate bound-ary. Since the options as to exactly where the 10-mile EPZ boundary should be drawn are numerous, the fact that Suffolk
- County planners and New York State planners agreed that the LILCO EPZ boundary, as currently configured, comported with 1
good emercency planning principles is relevant to the issue of whether LILCO's boundary is proper.
Suffolk County also seeks (County motion at 11-12) to
~
strike LILCO's testimony (p. 7, Q&A 7 and Attachments 1-3) con-cerning other nuclear power plants where municipal boundaries are crossed by the EPZ boundary on the ground that LILCO wit-nesses are not competent to testify regarding other plants and that such testimony is not relevant to the contentions that have been admitted. Again, LILCO witnesses, as emergency plan-ners, must maintain an awareness of how regulations and guide-lines are applied in the industry. Therefore, they maintain an i
awareness of how other nuclear facilities apply the emergency planning regulations and guidelines. Likewice, the fact that the regulations have been applied in a certain fashion in other nuclear power plants is evidence that this is accepted emergen-cy planning practice and, if the plant has been licensed, that it is accepted NRC practice. Thus, planning in other plants is relevant to the issues raised by the contentions.
In part II.J of its Motion (County Motion at 28),
Suffolk County seeks to strike LILCO's testimony (Q&A 17, last two paragraphs (pp. 13-14) and Attachments 8-10) concerning the various boundaries present in Suffolk County, such as school districts, fire districts, water districts, sewer districts, and postal zones. The County's basis is " lack of relevance."
As is clearly illustrated by LILOO's testimony, however, these
.are not the only " jurisdictional" boundaries in the County of Suffolk. There are many overlupping boundaries by which resi-dents of Long Island define where they reside. These addition-al boundaries are clearly relevant as to what should be'consid-ered significant, readily recognizable' landmarks for defining the boundary of the EPZ. Therefore, these paragraphs and at-i tachments are relevant to the issue of where the EFZ boundary should be drawn.
LILCO Testimony on Contention 24,
. - -t e
l The County has moved to strike certain portions of LILCO testimony on Contention 24 on the grounds that it is specula-tive, irrelevant, and unreliable because it allegedly (1) " constitutes improper speculation regarding future events,"
(2) includes Dr. Matthew C. Cordaro as a witness where he is unqualified to testify, (3) discusses community ambulances available in the EPZ although those ambulances are not relied upon in the LILCO Plan, and (4) provides information regarding the Red Cross's pursuit of relocation centers. Each of the County's arguments is addressed in turn below.
First, the County has moved to strike the following sen-tence from LILCO's testimony: "[ijn addition, LILCO is fi-nalizing similar contracts in the next few days with Guardian -
Ambulance Service, Inc., Nassau Ambulance Service, Inc., and Orlando Ambulance and Ambulette Service, Inc." (p. 9, last paragraph, first sentence). This testimony is offered in re-sponse to Contention 24.G, which alleges that LILCO has not ob-tained agreements for the number of ambulances and ambulettes relied upon in the LILCO Transition Plan. The sentence Suffolk County seeks to strike is relevant to Contention 24.G. The witnesses do not " speculate" as to future events, but.merely indicate in that sentence that negotiations regarding addition-al ambulances were ongoing at the time the testimony was
- g a w - ~ c y >~w
submitted, and puts all parties on notice that additional agreements will be forthcoming. (When these agreements are signed, LILCO will submit them to supplement its testimony on Contention 24 so that the testimony remains accurate and up-to-f date.) The County also moves to strike, as speculative, the statement by LILCO witnesses that "a permanent location nearby 1
[the Shirley Drive-In] will be found (for use as a transfer point]" (p. 17, lines 13-14). This sentence is being offered -
in response to Contention 24.1, which alleges that LILCO does not have agreements with owners of designated transfer points not owned by LILCO. In the LILCO Transition Plan, the Shirley.
Drive-In is listed as a transfer point. The witnesses, in their testinany, explain a change that has occurred since Revi-sion 3 of the Plan, by accurately stating that the Shirley.
Drive-In is not available for use as a transfer point. That statement, standing alone, leaves a~ gap as to what transfer point will be used instead, so the witnesses note that the Brookhaven Fire District has been used during drills as a tem-porary substitute, and that LILCO is finding a permanent ~1oca-tion nearby. This is not " improper speculation" as alleged by the County in its motion to strike. It is a statement of fact by the witnesses who are working to continue'to improve the LILCO Transition Plan.
i I
I Second, the County moves to strike Dr. Cordaro from the panel on Contention 24. Contention 24 deals with the various agreements that the County alleges LILCO has not obtained and needs in order to have an effective emergency plan. Dr.
Cordaro is the LILCO officer ultimately responsible for seeing that the LILCO Transition Plan can and will be implemented. He is, therefore, familiar with all of the issues raised in Con-tention 24 and has ultiniate responsibility for seeing that the agreements the County discusses in Contention 24 are obtained if, in fact, they are needed to assure-a successful emergency plan. In addition, as noted above in part I.E of this re-sponse, the County has attempted to discredit Dr. Cordarr dur-ing cross-examination, has failed to do so, and has not shown any basis for its statement that his participation " adds noth-ing to the testimony being offered."
Third, the County seeks to strike the following passage in the LILCO testimony on the ground that it is irrelevant to Contention 24.G because LILCO does not rely in its Plan on com-munity ambulances:
Q. Are there other sources of ambulances in the community?
A. Yes. Many of the towns and town vol-unteer fire districts within 20 miles of Shoreham have community ambulances (Attachment 22 to this testimony lists these ambulances). There are a
4 total of 61 additional ambulances that are available.for use in an emergency. While LILCO does not in-tend to rely upon community ambu-lances, special facilities and indi-viduals may call for assistance from their community embulance services.
It is to be expected that at least some of the services would respond.
But even if they do not, LILCO has contracted for sufficient ambulances.
(p. 13-14, Q&A 14). Contention 24.G questions whether LILCO will have sufficient ambulances to respond during an emergency.
In considering whether the numbers of ambulances for which LILCO has contracted are sufficient, it is pertinent that there 9
, are additional ambulances available in the community that would not be committed to LILCO and that might be relied upon by.the facilities needing ambulances to transport patients during an '
emergency. The testimony, therefore, is relevant. In addi-tion, the County suggests that the testimony'is not probative, i
material, or reliable because it consists of LILCO's specula-tion that community ambulances would be available in an emer-gency. In fact, the-testimony identifies the number of ambu-lances that would be uncommitted and available in the community and states that these are the-ambulances that nursing and adult homes call on a day-to-day basis when they require ambulance service. The witnesses then-draw the logical inference from; this information that-it is likely that some of the nursing and
~
l .
< - ' v -' ~
adult homes would rely upon these ambulance services in an emergency as well, thus lowering the number of ambulances re-quired to be provided by LILCO. The testimony is relevant, 4
probative, and material, and there is no reason to believe that it is unreliable. Therefore, the County's motion to strike this portion of the testimony should be denied.
Fourth, the County seeks to strike certain portions of LILCO's testimony in r2sponse to Contention 24.0 on the grounds that it is speculative, irrelevant, and unreliable. Contention 24.0 alleges that because Suffolk County refuses to allow Suffolk County Community College (SCCC) to be used as a reloca-tion center, "there is no relocation center designated for a significant portion of the anticipated evacuees." The portions-of the testimony that the County _ seeks to strike are quoted below.
The Suffolk County Red Cross is pursuing agreements for facilities within Suffolk County sufficient to house anticipated evacuees. If for any reason sufficient Suffolk County facilities are unavailable, LILCO has an understanding
' with Nassau County Red Cross to provide sufficient' relocation centers. Suffi-cient capacity will be available to house evacuees who need public shelter, whether Suffolk County allows SCCC at Selden to
-be used as a relocation center or not.
(See LILCO's testimony in response to Contention 74 and 75.)
In LILCO's view, the real issue regarding relocation centers is whether sufficient capacity will exist, not whether Suffolk County will allow the Red Cross to use SCCC at Selden during an emergency. That issue is discussed in response to Conten-tion 74 and 75.
LILCO has also obtained a letter of un- ,
I derstanding with the Nassau County Red Cross to provide relocation centers. The letter is Attachment 27 to this testimo-
, ny. As explained in response to Conten-tion 74 and 75, the Nassau Red Cross re-location centers are available to be used as backup relocation centers. If-for whatever reason, the Suffolk Red Cross is unable to provide sufficient relocation centers, the Nassau Centers will ue used.
The Director of Disaster-Services for the Nassau County' Red Cross participated in
- the February 15 LERO Drill.
i s (p.,24, line 7 through the end of the paragraph; p. 24, last 3 lines, to the end of the first' paragraph on p. 25; Ans. 32. p.
26, first full paragraph, to the end'of Ans. on p. 27; and At-tachment 27.) .
The County asserts that this testimony " includes no
. stated basis" for the discussion of-the Red Cross's actions.
[ .IIn fa t, the testimony is supported by;1etters of understanding
~
'with the Nassau and Suffolk County Chapters of the'American Red s- . , . .
Cross, as well as by numerovs discussions and contacts between 1
N 1
s a '
e 4
u_. *
~ -
+
N.
representatives of the Red Cross and LILCO witnesses. If Suffolk County wishes to explore the basis for the testimony regarding the Red Cross, it may do so on cross-examination.
There is no basis for Suffolk County's statement that LILCO's -
testimony "is speculative and unreliable." In fact, it is sup-ported by the Attachment the County seeks to strike.
The County alco asserts that this testimony is irrele-vant because " Contention 24.0 deals only with LILCO's designa-tion of the SCCC as a relocation center in the LILCO Plan." As noted in LILCO's testimony and as indicated by the portion of Contention 24 cited above, the logical conclusion from Conten-tion 24.0 is tha'_ there is not sufficient relecation center ca-pacity without the use of SCCC; otherwise, the unavailability of it would be without consequence. The testimony that Suffolk County seeks to strike refutes that proposition. Suffolk Coun-ty's continued insistance that LILCO must have agreements di-rectly with the facilities that are to be provided as shelters under the direction of the Red Cross is not a statement of un-alterable fact, but a statement of the County's view of what emergency planning should entail. It is for the Board to de-termine whether LILCO's plan regarding facilities is adequate.
LILCO's testimony seeks to establish that the LILCO Transition Plan is adequate. LILCO seeks to establish that, in part, by 1
4
, , ,c-~ -- - ~ , -
l I
i i
noting that because agreements with certain facilities between the Suffolk County Red Cross and the facilities have not yet been obtained, LILCO also has sought assistance from Nassau County Red Cross so that it will have a backup if the Suffolk County Red Cross facilities are unavailable for any reason.
This is reliable testimony relevant to the issue of whether LILCO will, in fact, have sufficient capacity in relocation centers. It should not be struch.
LILCO Testimony on Contention 26 The County seeks co strike Dr. Cordaro from sponsoring answers along with other members of the witness panel on Con-tention 26 (County Motion, Attac_hment 2, Item 5). For the rea-
, sons stated in part I.E. of this response, Dr. Cordaro is qual-ified to co-sponsor the various answers. Dr. Cordaro has knowledge of various aspects of the communications portions of the LILCO Transition Plan and thus is qualified to sponsor ei-ther the entirety of, or portions of, all of the answers to which he is ascribed.
The County seeks to strike questions and answers 65-70 on pages 27-28, solely because,-the County asserts, workers in the LILCO Customer Service Office will not perform the duties assigned to'them because of alleged " role conflict" and fear for their own safety (County Motion at pp. 20-21). The LILCO l
testimony demonstrates that the workers in the Customer Service Office are qualified to, and have the capability to, perform the tasks assigned to them. The Hicksville Customer Service Office is locatcd well outside the 10-mile EPZ.
The County has raised the alleged " role conflict" issue in separate conten-tions that already have been litigated. The county is simply trying to reargue its own view on that issue, rather than invoking even a colorable basic for a motion to strike. The County's argument has no merit.
Next, the County seeks to strike the answer to question 79 on page 31 on the ground that it states a " legal conclusion" (County Motion at 5). The answer, which consists simply of the word "No," is to the effect that there is no 15-minute require-ment in Section IV.D.3 of 10 C.F.R. Part 50, Appendix E, that states that LILCO must have the capability of notifying emer-gency response personnel within 15 minutes. Thus, the answer-simply reports what is stated in a specific section of the reg-ulations cited in Contention 26.A.2. For the reasons set forth in part I.A. of this response, the County's motion to strike should be rejected. (The County apparently agrees with all of the LILCO witnesses' statemencs as to regulatory requirements on page 30 of LILCO's testimony on Contention 26, because the County did not move to strike those'statementa.)
1 Finally, the County has moved to strike the last two sentences of the answer to question 110 on pages 42-43 under the County's generic heading as to " Improper Speculation Re-garding Futuro Events" (County Motion at 15). For the reasons set forth in part I.D. of this response, this testimony is rel-enant and should not be struck.
4 LILCO Testimony on Contention 27 Suffolk County seeks to have this Board strike three portions of LILCO's testimony on Contention 27:
)
(1) page 26, lines 14-20 (County Motion at 5);
(2) page 8, lines 9-13 (County Motion at 15); and (3) page 26, last 4 lines and all of page 27 l (County Motion at 15).
For the reasons detailed below, Suffolt County's motion to strike is without basis and should be denied.
First, Suffolk County argues that page 26, lines 14-20 should be struck because it is assertedly an attempt to draw a legal conclusion. Contrary to Suffolk County's characteriza-tion, the cited passage does not seek to draw a legal conclu-sion but rather indicates that LILCO's planning approach fol-lows the guidance offered by NUREG-0396. As such,.the statement is useful to explain why the mobilization sequence for LERO workers presented in the LILCO Trancition Plan was chosen. Further, NUREG-0396 is not a " legal requirement" with i
1 which emergency plans must comply; rather, i t is a guidance document for preparing those plans. Accordingly, citation to NUREG-0396 and the presentation of a direct quotation 2l rom it are not " improper legal conclusions" that should be struck.
Second, Suffolk County asserts that page 8, lines 9-13 should be struck because they contain " improper speculation re-garding future plan revisions" (County Motion at 15). This ob-jection is addressed in part I.D of this response. It is worth noting, however, that the County's attempt to strike this par-ticular passage reveals that it seeks to have the LILCO Plan frozen in time. Suffolk County's request to strike a portion of page 8 would leave a portion of LILCO's answer that states that improvements to the time needed to mobilize LERO workers have been identified and that their implementation "has been, and will continue to be an ongoing process." (LILCO Testimony on Contention 27 at 8, lines 5-9). Suffolk County would then to strike the following passage:
. . . as further drills are conducted, LILCO will revise either the Plan or its procedures to conti,nue to minimize mobili-zation times consistent with the efficient implementation of the Plan, and to improve the Plan's flexibility.
This passage is a logical extension of the previous idea and mere-ly identifies that future changes will be made by amending the Plan and Procedures. Suffolk County's motion with' regard to page 8, lines 9-13 should be denied.
I I
1 i
! I l
l r s ,
, r- . , , ., -e- -
Finally, Suffolk County seeks also to strike the last 4 lines of page 26 through the end of LILCO's testimony on Conten-tion 27, on the ground that it is " improper speculation regarding future plan revisions." For the reasons discussed in part I.D above, this request should be denied. The cited testimony contains a commitment by LILCO to include evacuation time esti-mates for an " uncontrolled" evacuation in the procedure used to determine the proper protective action recommendation -- OPIP 3.6.1 (LILCO Testimony on Contention 27 at page 26, line 23 to page 27, line 7). This commitment is certainly not " speculation" about future events. Indeed, if the County's desire is to avoid speculation about futura Plan reti:icus, the proper approach, with regard to this particular commitment, is not to seek to strike it, but rather to request that the Board condition its approval of the LILCO Transition Plan ca the implementation of this change.
Accordingly, the County's request to strike should be denied.
LILCO Testimony on Contentions 28-32, 34 First, the County moves to strike Dr. Cordaro from spon-soring answers to numerous questions (County Motion, Attachment 2, Item 7). For the reasons stated in part II.E of this Response, Dr. Cordaro is qualified to co-sponsor the answers to which he is ascribed. The example highlighted by the County in this regard is
. . . ._- _ .- . = - -- . _=.
instructive. The County asserts that Dr. Cordaro is not qualified to discuss " technical aspects of LILCO's proposed communications system" because he is not "a communications engineer" or "an elec-trical engineer" (County Motion at pp. 18-19). The County points to the answer to question 25 on page 19 of LILCO's testimony on Contentions 28-32 and 34. That answer is co-sponsored by witness-es Cordaro, Daverio, Hobbs, and Renz. The first part of the an-swer discusses simplex frequencies. The last sentence of the an-swer, however, states that "under the current LILCO Transition Plan the appropriate staging area is the point for communications to and from field personnel." Dr. Cordaro is certainly qualified to discuss the organization of communications under the LILCO Transition Plan. Witnesses Hobbs and Renz are qualified to dis-
. cuss simplex frequencies. There is no requirement that each and every witness sponscring a given answer be qualified to express an expert opinion on each and every aspect of the answer, so long as each witness is qualified to support relevant portions of the an-swer. Thus, the County's objection is frivolous.
Second, the County seeks to strike various portions of the testimony on the ground that they allegedly state " legal conclu-sions. These portions are listed on pages 3-5 of the County's Mo-tion to Strike. As set forth by the County, they are:
, - ~ , emn , -.--+-.r w a , . . - , ..--p,. --
r
4
- p. 3, last line, through p. 4, line 3
- p. 4, Ans. 4, line 8, sentence starting "In fact . . . .
- p. 4, Ans. 4, lines 21-22, sentence
. starting "There is no requirement . . . .
- p. 7, Ans. 8, all
- p. 8, first full sentence (lines 3-5)
- p. 8, last 3 lines
- p. 9, Ans. 10, all after quote of conten-tion
- p. 10, Ans. 11, lines 7-10, beginning "There is . . . ."
- p. 11, Ans. 13, lines 1-6, ending with
"...and maintained."
l
- p. 26, Ans. 32, word "Yes"
- p. 26, Ans. 33, word "No" pp. 32-33, Ans. 43, all pp. 36-37, Ans. 49, lines 1-3, ending with ". . .of activities exist."
County Motion at pp. 3-5. For the reasons set forth in part I.A. of this Response, the County's objection should be re-jected.
Third, the County moves to strike certain portions of LILCO's testimony (p. 4, lines 12-17; p. 8, lines 19-24; p. 10, lines 15-20; and Attachment 1) under the County's generic i
l l
heading " Improper Speculation Regarding Future Events" (County Motion at 15). For the reasons stated in part I .D of thi s Re-sponse, the County's objection is frivolous.
Finally, the County moves to strike the following sen-tence on page 20 of LILCO's testimony:
To address the example used by the inter-venors, Traffic Guides need not communi-cate directly with each other to insure coordinated information concerning traf-fic conditions.
(See Motion to Strike, pp. 21-22). The County asserts that LILCO's witnesses are not competent or qualified to make this statement because they allegedly "are not qualified to provide expert testimony on matters regarding traffic control func-tions...." (id.). The statement by LILCO's witnesses, howev-er, is that traffic guides need not communicate directly with each other to insure coordinated information concerning traffic l
conditions. The statement is sponsored by communications ex-perts and designers of the LILCO Transition Plan. The remain-der of the answer-(Ans. 26, pp. 19-20 of the LILCO testimony) explains why direct communications'between traffic guides is unnecessary to insure coordinated'information. The witnesses certainly are competsat and qualified to draw this conclusion from the stated bases. The County apparently is attempting to strike the statement by the LILCO witnesses simply because the ;
1
County's witnesses disagree. Indeed, it is LILCO's view that the County's witnesses on this issue, who have asserted that traffic guides must be able to communicate with each other under the circumstances that would be involved in implementing the LILCO Transition Plan, themselves have no qualifications er reliable basas for making their assertion. Indeed, unlike the LILCO witnesses who have explained why traffic guides need not communicate with each other, the County's witresses simply make the bald assertion, time and again, that the traffic guides must be able to communicate with each other. The County's ob-jection to LILCO's testimony is without merit.
LILCO Testimony on Contentions 55-57, 59 The County seeks to strike lines 1-3 of the answer to question 10 appearing on page 12, as well as lines 1-4 of the response to question 18 appearing on page 19, on the ground that the answers reach legal conclusions. LILCO disagrees for the reasons stated in part I.A above. In addition, in both cases cited by the County, the testimony merely points out that ,
the regulations do not contain certain language. Similarly, the County objects to LILCO's response to question 13, lines 1-5 and all of the answer in response to question 21 as reaching legal conclusions. Both of-these answers merely paraphrase the l
2 1
i i
regulations. The County moves to strike the second sentence of the LILC^ "tnessee' response to question 14 as reaching an im-proper legal conclusion. As emergency planners, LILCO witness-es are required to apply the regulations and guidelines virtu-ally on a daily basis and are competent to testify about the content of the regulations. Finally, the County objects te LILCO's testimony contained in lines 9-18 in response to ques-i tion 25 on the ground that citation by LILCO witnesses to deci-sions in other emergency planning proceedings is irrelevant.
LILCO disagrees. Such testimony concerning how other licensing boards have interpreted regulations and what the understanding is in the industry of NRC' interpretation of the regulations is
{
highly relevant. LILCO witnesses, as emergency planners, must be familiar with the interpretations placed upon the regula-tions and guidelines by licensing beerds so.that, as emergency planners, they can accurately apply the regulations as the li-i censing boards have interpreted them.
Suffolk County objects to the second sentence of answer 12, all of answer 25, and Attachments 3 and 4, on the alleged ground that LILCO's testimony refers to plans at other nuclear facilities. For the reasons stated in the response to the mo-
, tion to strike the testimony on Contention 22.D above, LILCO.
witnesses are competent to testify and such testimony is l
l e -
,, , - - - , , 4 . a n , , .n
-o .
i, l
t relevant to the issues raised in the contentions. In addition, the County's suggestion that the LILCO witnesses are not compe-I tent to testify as to LILCO's letter from the U.S. Coast Guard
! (County Motion at 12) smacks of people living in glass houses throwing stones. Major portions of the County's testimony on Centention 59 hinges on informal " conversations" with unspecified U.S. Coast Guard " representatives." If LILCO wit-nesses are not competent to testify as to U.S. Coast Guard com-mitments to LILCO that are specified in writing by a' named Coast Guard representative, then the major portions of the County's testimony on Contention 59 that rely on conversations l with unnamed Coast Guard representatives a. fortiori is not com-petent and should be struck.
t Suffolk County alleges that reference to procedures that j are under development but are not in the Plan should'be struck 1
l as speculative. First, any procedures developed by LILCO's System Operations Department to ensure prompt restoration of
- the power to the siren system following a widespread loss of
, power generation are not required to be included in'the LILCO
}
j Transition Plan. Neither the regulations nor guidelines re-quire that a backup power supply be provided for the sirens and
- therefore, such procedures need not be included inLthe Plan.
Second, as discussed at length above, an emergency plan is.a t
')
7--
"living" document which can never be rendered completely unchanging.
LILCO Testimony on Contention 58 The County has moved to strike the following portions of LILCO's testimony for Contention 58 based on the generic argu-ments indicated below.
A. Cordaro, et al., Improper attempt to Answer 10, page 9 provide a legal con-clusion B. Cordaro, et al., Improper attempt to Answer 14, page 11 provide a legal con-clusion .
C. Cordaro, Answers Cordaro not qualified 6-15 to sponsor answers For the reasons given in parts I.A and I.E above, the County's Motion as to these passages should be denied.
The County also has moved (County Motion at 31-32) to strike the second and third sentences of answer 13 of the tes-timony on Contention 58, in which the witnesses estimate that verification calls to special facilities would take about two minutes per phone call, or about 45 minutes for all special fa-cilities. The County's argument is that-there is "no basis" for the estimate and that the witnesses are not qualified to estimate how long a phone call will take. The "no basis"
argument is simply the County's way of dicagreeing with LILCO's testimony. It is r4 dispute about the facts and not a ground of inadmissibility. If the County wants to probe the basis for the estimate, it can do so by cross-examination.
The argument that emergency planners are not qualified to estimate how long a phone call will take is frivolous. The
~
County does not say what kind of expert it thinks is needed to make such an estimate. It can try, if it wishes, to show on cross-examination that the witnesses are not able to estimate the duration of phone calls.
LILCO Testimony on Contention 66 Suffolk County seeks to have this Board strike four por-tions of LILCO's testimony on Contention 66:
(1) page 13, lines 4-8 starting with "The presence . . . (County Motion at 6);
(2) page 12, first tua sentences of Answer 9 (County Motion at 12);
(3) page 13, first full sentence at top of page (County Motion at 13-14); and (4) page 15, footnote 1 (County-Motion at 14).
For the reasons detailed below, Suffolk County's motion to strike is without basis and should be denied. .
1 First, Suffolk County attempts to strike page 13, lines !
l 4-8 on the_ ground that it assertedly attempts, improperly, to
s .
draw a legal conclusion. To determine the appropriateness of the statement in question one must examine the language of Con-tention 66.D and LILCO's entire answer to question 10. Conten-tion 66.D states:
D. The LILCO Plan does not provide for snow removal. (See FEMA Report at 11, cit-ing non-compliance with NUREG 0654,Section II.J.10.k). Rather, the Plan assumes that
" snow removal will be provided by local organizations in their normal fashion dur-ing an emergency." (Plan at 2.2-5). This assumption is unwarranted. LILCO has no agreements with local jurisdictions or
~ other entities within and'around the EPZ to provide snow removal services during an emergency, nor can it assure that local personnel assigned to snow removal duties will perform those functions during an emergency, for the reasons cited in Conten-tions 15, 25 and 27.
A review of the contention reveals that it quotes from the LILCO Transition Plan and then proceeds to attempt to rebut that statement by assuming as a given that an agreement with local governments is required to assure snow removal during an evacuation. The sentence from LILCO's testimony Suffolk County seeks to strike merely responds to the implicit assumption of the contention by explaining why LILCO has'not sought to enter agreements with local governments. .Suffolk County's attempt to strike this sentence from LILCO's testimony'is inconsistent with its failure to strike similarly " offensive" language from the testimony of New York State witness Gibbons on Contention i
l
)
l
\
l
1 66.D. 1.adeed, the question and answer on the top of page 3 of Mr. Gibbons' testimony can be interpreted as his agreement that LILCO is legally required to have agreements with local govern-ments. Suffolk County's own testimony on Contention 66 is sim-ilarly " offensive" (see Testimony of Assistant Chief Inspector Monteith, et al. on Contention 66 at 5 (answer to whether wit-nesses agree with Contention 66)). If the Board were to strike the statement in LILCO's testimony, then these statements should also be struck. In addition, if read in the context of the previous sentence, the sentence in question merely states the witnesses' " understanding" of the applicable law; hence, under Suffolk County's own test (see County Motion at 4), the testimony should not be struck.
Second, Suffolk County argues that the first two senten-ces of answer 9 on page 12 should be struck because they dis-cuss "other evacuation plans without even identifying them" and because they assertedly make no effort to tie these plans to the contention (County Motion at 12). The County's proffered reasons for striking these sentences are meritless. The first sentence Suffolk County seeks to strike clearly states "[o]ther evacuation plans with which we are familiar. . ." Thus, LILCO witnesses have provided a discrete basis for their subsequent statements. The County will be free to question those
- =
1 witnesses on what other plans they had in mind when they drafted the statement in question. The County is simply wrong if its motion to strike is really an assertion that LILCO is 2nder an obligation to provide an exhaustive list of these plans in its testimony. In addition, the linkage of Luese statements to Contention 66.C is obvious: they are designed to
~
demonstrate that emergency plans are not deficient simply because they do not contain provisions relating to how people will be transported out of the EPZ should they become involved in accidents. Accordingly, Suffolk County's motion should be denied.
Third, Suffolk County seeks to strike the first sentence on the top of page 13 on the ground that the witnesses' "sub-jective belief . . I is irrelevant to the question of whether local governments have agreed to, and will in fact, provide such service, which is the issue raised by the Contention."
(County Motion at 28). Simply, Suffolk County would have this 1
Board judge the admissibility of the statement in question against its own, incorrect, standard. The County would have this Board assume that LILCO must have agreements with local governments regarding snow removal. Read in the context of the entire answer, .the sentence in question lays the groundwork for the assertion that LILCO does not agree with the County's l
l l
l alleged premise of Contention 66.D -- namely, that LILCO must enter into an agreement with local governments on snow removal.
As such, it is not a " subjective belief" about what local gov-ernments will do, but rather an explanation of the statement that appears in the LILCO Transition Plan. Suffolk County's reference to this Board's earlier ruling granting Suffolk Coun-ty's motion to strike a portion of Contention 65 is inapposite.
~
In that case, the material struck was a tangential statement relating to LILCO's belief that County personnel would respond during an emergency and assist LERO workers in the evacuation of the EPZ. The LILCO witnesses added, as Suffolk County noted in its November 28, 1983 motion to strike, that the LILCO Tran-sition Plan could be implemented without County involvement (see November 28 Motion at 8). By contrast, the County has raised in the language of Contention 66.D the issue of khether
&greements must be entered into with local governmants re-garding snow removal. The testimony presented by LILCO is di-rectly relevant to that question.
Finally, Suffolk County argues that the footnote on page 15 should be struck since it is a " rehash" of testimony already submitted on Contention 65 (County Motion at 29). Read in context, this statement assints in providing bases for the statement in the text where it is signaled. Accordingly, Suffolk County's motion to strike is meritless.
LILCO Testimony on Contention 67 Suffolk County seeks to have this Board strike three portions of LILCO's testimony on Contention 67:
(1) page 20, lines 19-27 (County Motion at 13-14);
(2) page 16, lines 8-13 (County Motion at 15); and 4
(3) page 10, lines 11 through page 11, line 6 (County Motion at 29-30).
For the reasons detailed below, Suffolk County's motion to strike these three portions of Contention 67 is without basis and should be denied.
First, Suffolk County argues that the testimony on page 20, lines 19-27 should be struck because it assertedly involves im-proper speculation about future events. The testimony in question recognizes that the list of transfer points contained in-Appendix A, and used as the basis for the bus schedules that appear in Ap-pendix A, may not be the ultimate list. It then provides examples of two transfer points that have been or may be moved short dis-tances. Clearly this testimony is not improper speculation about future events as the County suggests; rather, it recognizes changes in transfer point locations that are presented in other testimony filed by LILCO (see LILCO Testimony on Contention 24 at 16-18) and relates that information to the bus schedules that are
1
. . )
the subject of Contention 67. In addition, the Caunty's request to strike is internally inconsistent because it does not attempt to strike subsequent testimony that explicitly refers to Conten-tion 24 or that offers the following conclusion about the effect of moving transfer points:
None of the relocations effected or contemplated to date affects the accuracy or logistics of the bus schedules set forth in Appendix A.
Accordingly, this request is without basis and should be denied.
Second, Suffolk County seeks to strike page 16, lines 8-13 on the ground that it involves " speculation about what LILCO may do if there are excess buses." (County Motion at 15). For the reasons discussed in part I.D. above, this request should be de-nied. LILCO would only add that the total number of buses needed i'
to implement all parts of the LILCO Transition Pltn is the subject of Contention 24.F, and that this statement provides useful back-ground for the litigation of that contention.
Finally, Suffolk County seeks to strike page 10, line 11 through page 11, line 6 on the grounds that the passage "is blatant hearsay which is not reliable, meaningful or probative."
(County Motion at 29-30). First, the County's requested relief is
'far too broad. Virtually all of the cited testimony (particularly pnye 10, line 21 to page 11, line 4) refers to readily ascertain-able and verifiable facts that are a matter of public record, such
ss railroad time schedules. For this material, the County's hear-i say objection is inappropriate, and accordingly, the County's mo-tion to strike should be denied. Second, the County's motion does not recognize that the hearsay rule is not strictly enforced in administrative proceedings. Indeed, Suffolk County's motion is really an argument about the weight to be accorded the testinony, and not its admissibility. Suffolk County complains that the phrases "very few" and "very low" are subject to a " wide range of interpretation," yet the County has made no attempt to use avail-able discovery procedures to pursue the bases for these phrases, or to obtain the details of how they were procured. During the litigation of Contention 65, thds Board was confronted by a simi-lar request to strike by counsel for the Sta e of New York re-garding wind shift data (see Tr. 2766-72). It responding to that ora'_ motion, the Board correctly noted that the proper approach is to examine all the' foundations for the testimony, and only after that examination is complete should a ruling be made. In this case, the County has failed to examine any of the foundations for these statements, and therefore its motion to strike is-premature.
For these reasons, the County's request to strike should be de-nied.
a I
)
4 l
1 LILCO Testimony on Contention 73.A The County moves (County Motion at 15 and Attachment 2) to strike the following based on its generic arguments:
A. Cordaro, et al., lines Improper speculation 9-14, page 9 regarding future events B. Cordaro, et al., Improper speculation lines 11-15, page regarding future 13 events
- C. Cordaro, Answers Cordaro not qualified 4-10 to sponsor answers For the reasons given in parts I.D and I.E above, the Coun-ty's motion as to these passages should be denied.
The County also moves (County Motion at 22) to srike the first two sentences of answer 7 on page 9. The County's argument about the pejorative use of " disabled" and " handicapped" simply takes issue with LILCO's characterization of the County's posi-tion. In point of fact, LILCO's characterization is perfectly ,
l accurate; the County's notion that handicapped people cannot be trusted to decide for themselves if they need help is, like the County's view of'how people will behave in an emergency, pater-1 nalistic and insulting. But that is not important; what is impor-tant is that one party is perfectly entitled to characterize an-other party's position in order to show it to be wrong. That is
I l
all LILCO has done here. The Count.y's objection is nothing more than that it disagrees with LILCO's characterization, and that is no basis at all for a motion te strike.
The County next argues that a witness needs to be a certain type of expert to make the statement that people who do not think they are handicapped should not be considered handicapped for emergency planning purposes. The County does not say what kind of
" expertise" it thinks would be necessary to make such a statement, but presumabiy it views' the statement as coming within the ex-pertise of physical therapists, social workers, or the like. In fact, nothing of the kind is involved. The statement, particular-ly when read in the context of the surrounding sentences, is a statement about emergency planning needs and nothing else. It also is an explanation of why LILCO's emergency planners have taken a particular approach to identifying the handicapped. It is, therefore, both probative and within the expertise of the wit-nesses.
LILCO Testimony on Contention 73.B The County has moved (County Motion, Attachment 2) to strike Dr. Cordaro from answers 7-14, 16, 18 and 19 of LILCO's testimony on Contention 73.B. For the reasons set out in part I.E above, the motion should be-denied.
The County also has moved to strike the last two sentences of answer 10, in which the witnesses estimate that it would take
- about 45 minutes for five LERO workers to call handicapped persons at home, based on an estimate that each call would take three
! .ainutes. Once again, the County alleges that estimates of the du-ration of phone calls are without " basis" and outside the ex-1 pertise of the witnesses. And again, the answer is that the Coun-ty is quarreling with the evidence and can explore the matter on cross-examination if it chooses.
I j LILCO Testimony on Contention 74 Suffolk County seeks to strike certain portions of LILCO's i testimony on Contention 74 on the grounds that (1) it constitutes 4
testimony on prior County planning, (2) it introduces new informa-1 tion outside the scope of the Plan, (3) Dr. Cordaro is not.quali-fied to testify on the issue, (4) testimony regarding the Red Cross's activities is not probative or reliable, and (5) statements by New York State and FEMA regarding the relocation centers in the Plan are not relevant.
First, Suffolk County seeks to strike page 12, lines 4-10 of the LILCO testimony.on Contention 74, which reads as follows:
)
6
"[ilt should be remembered that NUREG-0654 is merely a guideline and not a requirement. See Long Island Lighting Company (Shoreham i
l
)
, Nuclear Power Station, Unit 1), LBP-83-22, 17 NRC 608, 616 (1983);
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit
- 1), ALAB-698, 16 NRC 1290, 1296-1298 (1982)." LILCO offers this testimony in response to Contention 74, which states that two of the three primary relocaton centers designated in the LILCO Plan j "are only 3 miles beyond the EPZ boundary contrary to the requirements of NUREG 0654,Section II.J.10.h" (emphasis added).
The testimony the County seeks to strike is directly relevant to the County's contention. The witnesses merely note that contrary to the contention, NUREG-0654 is a guideline; they then give their basis for that statement by citing two NRC cases. This is not ir-relevant, nor is it " purely legal citation" as asserted by the l County in its motion to strike.
Second, the County seeks to strike page 8, line 5,.through.
page 11, end of answer 10, plus Attachments 6 through 11, on the ground that it is irrelevant to Contention 74 because it refers to County planning and-not LILCO' planning. This is LILCO's testimony in response to the question "[d]o you think that SCCC at Selden and SUNY at Stonybrook are satisfactory relocation centers for li-censing purposes even through they are less than 5 miles beyond the EPZ?" (LILCO Testimony at 7.) The LILCO witnesses describe the reasons why they think these relocation centers are.satisfac-i
' ~
tory even given their location. Contention 74 challed'ges the l
l 1
i l
relocation centers due to their location. Pages 8 through 11 of the LILCO testimony describe how these relocation centers were chosen and how they came to be in the LILCO Transition Plan. The bases for selecting the relocation centers are also described in Attachments 6 through 11, which are as follows:
Attachment 6 -- Contract between LILCO and Suffolk County to prepare an offsite emergency plan.
Attachment 7 -- Deposition of Lee D.
Koppelman dated October 6, 1983, pages 44 through 48.
Attachment 8 -- Report on relocation cen-ters by the Suffolk County Department of Planning to the New York State Nuclear Emergency Planning Group, dated April 29, 1981.
Attachment 9 -- Letter from New York State Nuclear Emergency Planning Group to Region II of the Federal Emergency Man-agement Agency (FEMA), dated May 19, 1981.
Attachment 10 -- Letter from FEMA Region II to New York State Nuclear Emergency Planning Group, dated June 4, 1981.
Attachment 11 -- Letter from Suffolk County Department of Planning to the New York State Department of Health, dated September 2, 1981.
The testimony and attachments show that prior to the County's abandoning its planning efforts for Shoreham, the County, the State, and FEMA considered the relocation centers and had no J
1 1
objections to their location. The fact that the County and the State, who now challenge the location of these centers, did not object to them and generated documents that formed the basis for LILCO's choosing these relocation centers for its Plan is relevant evidence.
The County alleges in its motion to strike that "the ad-mission of this ' evidence' will vastly expand this litigation, as it will necessitate the presentation of evidence to negate the implications of LILCO's testimony -- namely that the LILCO relocation centers are satisfactory to the County." This is nonsense. It is clear from the face of the contention that the County now alleges that the LILCO centers are not satisfactory to it. In explaining why the centers are satisfactory, LILCO is entitled to describe its basis for choosing the centers.
Part of its basis was documentation at the County and State levels regarding the high quality of the centers. That infor-mation should not be struck from LILCO's testircony.
Third, Suffolk County asks this Board to strike any ref-erence tc the letter of understanding obtained with the Nassau County Red Cross, and the discussion of the relocation centers available in Nassau County for use during an emergency at Shoreham, on the ground that steps LILCO "may or allegedly will take in the future" are " improper speculation regarding future
t events." The agreement between the Nassau Red Cross and LILCO is not speculation about anything that is to take place in the future. It is a description of an agreement, which exists and is attached to the testimony, stating that the Nassau County Red Cross will provide relocation centers if they are needed.
The tectimony supports the letter of agreement by also noting that a member of the Nassau County Red Cross staff has partici-pated in the LERO drill. The witnesses testifying on Conten-tion 24, who are emergency planners for LILCO and are charged
, with updating and implementing the LILCO Transition Plan, state in their testimony that the Nassau Centers will be used in the Plan ~should the Suffolk County centers be unavailable prior to operation of Shoreham above 5% power. This is not speculation, but relevant evidence regarding LILCO's ability to assure that sufficient relocation centers will be available. The County is free to cross-examine the LILCO witnesses regarding the use of the Nassau Centers or the nature of the agreement between LILCO and Nassau County.
Fourth, the County once again seeks to strike testimony by Dr. Cordaro, in this case as to relocation centers. Dr.
Cordaro is familiar with pertinent emergency planning regula- .
)
tions and it is his corporate responsibility within LILCO to see.that sufficient relocation centers are provided-for in the
LILCO Transition Plan. For the reasons stated above in part I.E of this response, the County's motion is without merit.
Fifth, Suffolk County also seeks to strike the following sentence from the LILCO testimony on Contention 74: "[t]he Suffolk County Red Cross has not yet finalized written agree-ments with the relocation centers listed in the LILCO Transi-tion Plan, but those are the centers the Red Cross is consid-ering to provide shelter during an emergency at Shoreham."
(LILCO Testimony on Contention 74 at pages 5-6.) The County asserts that this testimony is not probative or reliable, is not material to the contention, and can only be properly of-fered by the Red Cross. As explained by LILCO's witnesses and supported by the letter of understanding and the statement of Suffolk County's role in response to an emergency that is at-tached to LILCO's testimony on Contention 74, the Red Cross ob-tains letters of agreement for rhelters to be used during an emergency. LILCO is working with the Red Cross as part of its ongoing planning effort and therefore is aware of what the Red Cross is doing regarding shelters. LILCO witnesses are quali-fied to state what they know the Red Cross is doing and what planning efforts are taking place. The County can explore the-reliability of this testimony during cross-examination. It is-not necessary, however,_although the County would prefer it, v- - t =
that.LILCO introduce in this proceeding witnesses from every single organization that will take part in an emergency re-sponse, nor would it be a good use of the parties' and the Board's time.
As with all other phases of the construction and qualification of a nuclear power plant, certain koy witnesses in emergency planning must be relied upon to describe the work of many. The LILCO witnesses on Contention 74 have worked with the Red Cross and are aware of what the Red Cross is doing.
'They are perfectly qualified to discuss the location of reloca-tion centers, and the Red Cross's role in finding them. This testimony should not be struck.
Finally, the County moves to strike questions and an-swers 9 and 10, and Attachments 9-11, of LILCO's testimony on Contention 74, arguing that they are outside the scope of the contention. The attached documents consist of descriptions by County and State employees of the relocation centers relied on in the LILCO Plan; the testimony the County seeks to strike de-scribes these documents. The basis upon which LILCO chose the relocation centers in the Tranaition Plan is, in part, the County and New York State documents the County wishes to strike. These documents are relevant. In addition, LILCO sub-mits that it is material evidence that while the County and New York State now challenge the location of the centers they
previously expressed no concerns whatsoever regarding the relo-cation centers, and in fact supported the choice of these cen-ters despite their location.
LILCO Testimony on Contention 75 Contention 75 deals with the capacity of relocation cen-ters. The County seeks to strike the first two paragraphs of answer 6, pages 5-6, and Attachments 1 and 2 of LILCO's testi-mony on Contention 75 on the grounds that (1) it contains im-proper legal citation, (2) it contains improper assertions based on sociological materials that the witnesses are not qualified to testify about, (3) it improperly designates prior County planning documento, (4) it speculates on future behavior by mentioning the Nassau County relocation centers, and (5) Dr.
Cordaro is not qualified to testify on this issue. The first two of these assertions are addressed below. The remaining three have already been addressed above in response to chal-lenges to testimony on Contention 74, and will not be repeated.
As to the County's argument on improper legal citation, Contention 75 alleges that-the LILCO Plan provides no estimates of the number of evacuees who may require shelter during an emergency, and does not show that the buildings' designated as shelters have adequate capacity and facilities such as food,
shower, toilet, and space. Contention 75 also cites NUREG-0654, II.J.12, but makes absolutely no mention of the registra-tion or monitoring of evacuees at relocation centers in the text. The sentence in the LILC0 testimony that the County seeks to strike states: "[t]his standard [NUREG-0654, II.J.121 addresses the registration or monitoring of evacuees at reloca-tion centers; it is not pertinent to Contention 75." This is not a case of "LILCO witnesses attempting to interpret what the regulations or other laws require," as asserted in the County's motion at 4. It is a statement by the witnesses, who are fa-miliar with NUREG-0654 II.J.12 and Contention 75, that NUREG-0654, II.J.12 is improperly cited in Contention 75. Their tes-timony should not be struck.
The County also seeks to strike as improper legal cita-tion LILCO's testimony on pages 8-9, where LILCO witnesses state in response to the question "[w]hy do you think that 20%
is an appropriate number for use in planning?" the following:
And in In Re Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Sta-tion, Unit 1) LBP-82-48, 15 NRC 1549, 1589 (1982), the Board found that
[ijndividuals leaving the plume exposure zone may in many c ses go to friends' homes or some other location and not to a-relocation center. Approximately 20% of an evacuating population will proceed to a relocation center.
i Contention 75 asserts that LILCO has not designated the number of evacuees.that will require shelter in an emergency, and that LILCO does not have sufficient capacity at the relocation cen-ters designated in the Plan. In response 13) this contention, the LILCO witnesses have des'ribed c how many evacuees they think I
will require shelter in. an emergency. They have chosen 20% as their planning basis. In the answer that the County seeks to strike, they are describing the reasons why they chose 20%.
The citation and quote in the sentenets that the County wishes to strike is the NRC case law on which LILCO is relying for its J
20% capacity. This testimony is not, as the County asserts,
" purely legal citation" (County Motion at 6). It is given as the part of the basis for the planning that LILCO is doing and therefore should not be struck.
The County also seeks to strike (County. Motion at 25) the first^two paragraphs of answer 6, pages 5-6, and Attaah-ments 1 and 2 of.LILCO's testimony on Contention 74, as'outside the expertise of the witnesses. In this testimony, LILCO wit-nesses explain, in response ia) the question "[h]ow many persons l are estimated to' seek shelter in a relocation center?" (LILCO j Testimony at 5,), that "[o]rdinarily, evacuees prefer not to go {
to public relocation centers, but stay instead in the homes of 4
family or friends or in a hotel" (LILCO Testimony at 5). ;Their e
bases for this assertion are two studies, one by Quarentelli and Dynes, the pertinent portions of wnich are Attachment 1 to the testimony, and the other by Hans and Sell for EPA, the per-tinent portions of which are Attachment 2 to the testimony.
While the LILCO witnesses, as the County asserts in its motion to strike at 25, are not social scientists or psychologists, their testimony is not incompetent. Regarding capacity, the LILCO witnesses indicate that they have researched the issue and have found in two studies that most evacuees in disasters have gone to public relocation centers. These studies have been provided to the County and are part of the bases upon which LILCO chose 20% as the capacity it must provide for at {
I relocation centers. The testimony is probative of the basis on which capacity was chosen for the Plan. If the County doubts the reliablity or the testimony, it can cross-examine the wit-nesses regarding their reliance on these reports. If the Coun- l ty has a basis to doubt the studies relied upon by LILCO plan-ners, it can seek to file rebuttal testimony challenging the studies. The County's argument for striking the testimony --
that LILCO's witnesses are not social scientists or psycholo-gists and therefore presumably are not qualified to testify about what they read in reports by social scientists and how they use those reports in their planning efforts -- goes, if
anything, to the weight that the testimony should be given.
That is not a reason to strike it.
LILCO Testimony on Contention 77 The County moves (County Motion, Attachment 2) to strike Dr. Cordaro from answers 6-8, 12, and 14 of the LILCO testimony on Contention 77. For the reasons recited in part I.E above, the motion should be denied.
LILCO Testimony on Contention 92 Both Suffolk County and New York State have moved to strike portions of LILCO's testimony on Contention 92 dealing with the New York State Plan. The County has moved to strike portions of the testimony on the asserted grounds that it im-properly includes legal conclusions, citations to plans at oth9r facilities, testimony that Dr. Cordaro is not qualified to sponsor, irrelevant information regarding the New York State Plan and speculation about the State's possible response during s
an actual emergency at Shoreham. The State has moved to strike virtually all of LILCO's testimony on Contention 92 on the grounds that it is irrelevant, speculative, and constitutes ad hominem statements that are not admissible in.this proceeding.
Suffolk County's and the State's grounds for to striking testi-mony on Contention 92 can be reduced to four objections:
(1) the testimony contains assertedly improper legal conclu-sions, (2) Dr. Cordaro's qualifications, (3) discussions of other facilities and plans used at other facilities, and (4) it includes assertedly speculative and ad hominem statements.
Each of these will be discussed below.
First, Suffolk County seeks to strike page 4, answer 7, last two lines and all of page 5 of LILCO's testimony on Con-tention 92 on the ground that it constitutes interpretation by LILCO witnesses of what regulations or other laws require. The testimony the County seeks to strike recites regulations and the State's interpretation of those regulations as stated in the portions of the New York State Plan attached to the testi-j many. It does net constitute an interpretation by the LILCO i
1 witnesses of those laws, but is merely_a description of how the State has interpreted its laws and applied them to every nucle-i ar power plant in New York except Shoreham. Contrary to Suffolk County's assertion, the LILCO witnesses are not "at-tempting to interpret what the regulations or other laws re-quire." Therefore, this testimony should not be struck.
Second, the County once again seeks to strike Dr. l Cordaro from the witness panel. As the member of LILCC's man-agement responsible for seeing that the LILCO Transition Plan is developed and implemented properly, Dr. Cordaro has reviewed l
l
a J documents over the years and has interacted with officials at all levels government regarding emergency planning for Shoreham. He is familiar with the New York State Plan and with the specific areas where that Plan is taken into account in the LILCO Plan. There is no basis for the County's assertion that he is not qualified to testify on these issues. The County is entitled to cross-examine him regarding his familiarity with the issues; for these reasons, .ind the reasons stated in part I.E of this response, they have shown no basis for striking him from the panel.
The mainstay of the County's and the State's complaints t regarding LILCO's testimony on Contention 92 is that it consti--
tutes irrelevant information regarding other New York plans and what the State might do in an emergency. Both the County and the State incant repeatedly that the focus of this proceeding is "on the LILCO Plan," and therefore that mention of any other plans is irrelevant (County Motion at 26, State Motion at 2).
But it is the County that has raised in the first instance the issue of the New York State Plan, not LILCO, and it is the State that supports the County's Contention 92. 'That conten--
tion provides as follows:
i
There is no New York State emergency plan to deal with an emergency at the Shoreham plant before this Board. (See Plan, at Attachment 1.4.2.) In addition. the LILCO Plan fails to provide for coordination of LILCO's emergency re-sponse with that of the State of New York (assuming, arguendo, such a response would be forthcoming). (See FEMA Report at 1.) In the absence of a State emer-gency plan for Shoreham, there could be no finding of compliance with 10 CFR Sec-tion 50.47(a)(2), 50.47(b), or NUREG 0654,Section I.E, I.F, I.J or II.
[ Footnote ommitted.]
This contention asserts that (1) there is no New York State Plan, and that (2). assuming for a moment that the State would respond in an actual emergency, LILCO's Plan fails to provide for coordination of LILCO's emergency response with that of the State of New York, The contention requires LILCO to assume that New York State would respond and to explain what that response might be and how New York State's response would be coordinated with LILCO's. Neither the County nor the State, however, want LILCO to use any document other than the LILCO Transition Plan to explain on what basis LILCO provides for coordination of what kind of response-from the. State, or why there is no New York State emergency plan before this Board.
.In any event, LILCO witnesses do not " speculate" as to whether the State will or will not respond, but simply quote the Gover-nor of New York's public statements on that issue.
. . l I
In response to Contention 92, LILCO is entitled to file with this Board and offer into evidence the State of New York's Plan; to discuss what tasks set out in the State Plan are per-formed by LERO personnel in the LILCO Plan because the State has thus far refused to do at Shoreham what it does at other power plants; and to measure what LILCO is doing at Shoreham against what the State has accepted at other nuclear power plants in New York. None of LILCO's testimony on Contention 92 should be struck.
LILCO Testimony on Contentions 93-95 These contentions involve alleged loss of offsite power; the County filed no testimony on them. The' County moves to strike Dr. Cordaro from sponsoring several answers in LILCO's testimony (County Motion, Attachment 2, Item 19). For the rea-sons set forth in part I.E of this response, the County's ob-jection to the answers co-sponsored by Dr. Cordaro has no merit.
The County also moves to strike various portions of LILCO's testimony (p. 14, last two lines; p. 15, top two lines;
- p. 20, Ans. 32, lines 1 and 2; p. 21, lines 11-14) on-the i
ground that this testimony allegedly is irrelevant becauseEit discusses provisions in plans at other nuclear facilities (County Motion at 13). For the reasons set forth in part I.C-
.. ~.
i of this response, this testimony is clearly relevant. It is i
certainly relevant to know that plans for other nuclear power plants in New York and eleewhere do not have independent backup power supplies for electro-mechanical sirens, and that electro-mechanical sirens are used by the majority of other utilities for warning systems for nuclear power plants. This demonstrates that the LILCO Transition Plan is in accordance with plans that have been approved not only under NRC practice, but also that provisions like those in the LILCO Plan are contained in the approved plans of utilities and local govern-ments in the State of New York. The County apparently wishes to impose a double standard, supported by the State of New York (which, as an active participant in this proceeding, has stated that it supports the County's contentions), which would find every other plan in the State of New York and arr>und the coun-try acceptable, yet would reject identical provisions in the LILCO Transition Plan. The County's objection to LILCO's tes-timony on the asserted ground of irrelevance is absurd.
The County moves to strike the last two lines of page 15 and the top five lines of page l' of the LILCO testimony be-cause it allegedly " speculates" as to power restoration proce-dures for the sirens that, as the LILCO testimony states, are now -being developed by LILCO's Syste.ta Operations Department k
, o (County motion at 16; LILCO Testimony at 15-16), under the County's generic heading of " Improper Speculation Regarding Fu-ture Events." This example reinforces LILCO's position, set forth in part I.D of this response, that the County's Motion on this ;round has no merit. The LILCO testimony states that l these procedures are now being developed. If the County wishes to probe the state of development and nature'of these proce-dures, it may do so on cross-examination. i l
Finally, the County objects to the answer to question 30 (
l on page 19 on the ground that it purports to interpret regula- l l
tions and hence draws an " improper legal conclusion" (County Motion at 6; see County Motion at 13). For the reasons set forth in part I.A of this response, the County's objection i
should be rejected. The answer by the LILCO witnesses, in ef--
fect, paraphrases a specific regulatory requirement referred to in a previous answer, and explains which specific provisions of the LILCO Transition Plan are provided to fulfill that require- l ment.
LILCO Testimony on Contention 96 The County moves to strike the following testimony on the basis of its generic arguments:
= %
1 Cordaro, et al., Attempt to provide a-second sentence of legal conclusion Answer 10, page 6 Cordaro, et al., Testimony about other Question and Answer nuclear facilities 11, page 7 Cordaro, Answers Cordaro not qualified 8-21 to sponsor answers For the reasons recited in parts I.A, I.C, and I.E above, the t
3 motion should be denied.
LILCO Testimony on Contention 97.B The County moves to strike Dr. Cordaro from Answers 6-12 of LILCO's testimony on Contention 97.B. For the reasons re-cited in part I.E above, the motion should be denied.
IV. Conclusion For the reasons stated above, LILCO requests that the County's Motion to Strike Portions of LILCO's Group II-A Testi-mony be denied.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY
(
By ! ." '
- f ~' N! **
?
{? j .
James N. Christman. ,
One of Counsel.for LILCO
e o Hunton & Williams 707 East Main Street Post Office Ecx 1535 Richmond, VA 23212 DATED: March 16, 1984 l