ML20112D039

Response to Lilco 850226 Response to 850119 Proffered Testimony Re Designation of Nassau Coliseum as Monitoring & Decontamination Ctr.Certificate of Svc Encl

ML20112D039
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	03/20/1985
From:	Gundrum M, Mark Miller, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:
Shared Package
ML20112C936	List: ML20112C932 ML20112C970 ML20112D039
References
OL-3, NUDOCS 8503220210
Download: ML20112D039 (35)

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'83 ?!M 21 A10:27 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSI@ iC' di Oit fu 00CKfi NU a SERVICI:

Before the Atomic Safety and Licensing B6df84 In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

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SUFFOLK COUNTY AND STATE OF NEW YORK REPLY TO LILCO'S RESPONSE TO FEBRUARY 19 PROFFERED TESTIMONY ON THE DESIGNATION OF NASSAU COLISEUM AS A MONITORING AND DECONTAMINATION CENTER I.- INTRODUCTION On January 28, 1985, this Board granted LILCO's January 11 motion to reopen the evidentiary record for the purpose of assessing LILCO's proffered evidence concerning use of the Nassau Veterans Memorial Coliseum as a monitoring and decontamination center-in the event of an emergency at Shoreham.1/ Pursuant to the Board's January 28 Order, Suffolk County.and New York State, on February 19, 1985, submitted 1/ Memorandum and Order Granting LILCO's Motion to Reopen Record, dated January 28, 1985 (hereinafter, " January 28 Order").

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• l direct testimony concerning the merits of LILCO's designation of the Nassau Coliseum. This testimony was challenged by LILCO on February 26, 1985, when LILCO filed a response to the proffered testimony which essentially asserted that the testi-mony should not be admitted into the record and did not estab-lish the need for further evidentiary hearings.2/

Because LILCO's February 26 Response contained factual and legal misstatements and arguments which required correction and a response,_Suffolk County and New York State, on March 1, 1985, moved for leave to reply to LILCO's Response.3/ A sub-stantive reply was not attached to the County / State March 1 Mo-tion. Nevertheless, on March 5, 1985, LILCO moved to strike the County / State March 1 Motion as an unauthorized substantive reply.1/ On March 6, the County and State replied to the LILCO strike motion, pointing out that there was no basis to construe the County / State March 1 Motion as a substantive reply.5/

2/ LILCO's Response to Intervenors' Proffered Testimony on

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the Designation of Nassau Coliseum as a Reception Center, dated February 26, 1985 (hereinafter, " Response").

-3/ Suffolk County and State of New York Motion for Leave to File Reply to LILCO's Response to February 19 Proffered Testimony on the Designation of Nassau Coliseum as a Moni-toring and Decontamination Center, dated March 1, 1985 (hereinafter, " County / State March 1 Motion").

-4/ LILCO's Motion to Strike Intervenors' Unauthorized March 1, 1985 Pleading, dated March 5, 1985.

5/ Suffolk County and State of New York Reply to LILCO Strike Motion, dated March 6, 1985.

Thereafter, the County and State learned of th'e Appeal Board's February 13, 1985 ruling in Louisiana Power & Light Company (Waterford Steam Electric Station, Unit 3). The Appeal Board's ruling makes clear that "the preferred practice followed in litigation is to tender the document that a party seeks leave to file along with its motion." Given this Appeal Board guidance, the County and State immediately made known their intent to prepare and submit the substantive reply refer-enced in the County / State March 1 Motion, unless otherwise directed by the Board.1/ We have not heard from the Board and, accordingly, pursuant to 10 CFR $2.730(c), the County and State hereby submit this reply to LILCO's February 26 Response. This reply should, consistent with Waterford, be considered by this Board in conjunction with its consideration of the County / State March 1 Motion.

6/. Suffolk County and State of New York Notice of Intention to File Reply Memorandum, dated March 13, 1985.

II. COUNTY / STATE REPLY TO LILCO'S RESPONSE Before addressing LILCO's specific objections to the tes-l timony proffered by the County and State, it is necessary to respond to certain arguments and assertions made by LILCO throughout its February 26 Response. Primary among these is LILCO's persistent dispute with the merits of the testimony proffered by the County and the State. Indeed, LILCO's Re-sponse1and the attachments thereto (especially the affidavits of John A. Weismantle and Edward B. Lieberman, which are At-tachments 1 and 2, respectively), repeatedly make factual alle-gations, draw conclusions and raise arguments properly pursued through cross-examination,-rebuttal testimony, or in post-trial briefs after all relevant evidence has been considered. Such allegations, conclusions and arguments.have one common theme --

that,.in essence, the County and State witnesses are wrong in their factual assertions.and their expert opinions. They, therefore, amount to nothing more than attempts by LILCO's law-yers to argue the factual merits of the county / State testimony.

LILCO's Respense, however, was supposed to deal only with the threshold issues of whether to admit proffered evidence or to have a hearing on admitted evidence. Thus LILCO's dispute

. with the merits of the County / State testimony should be l

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o-disregarded by the Board. However, should the Board consider in any way any of the alleged " facts" or arguments based on such alleged " facts" that are in LILCO's Response or the at-tachments thereto, the County and State must similarly be given the right to respond to such " facts" before any determination is made by the Board concerning further proceedings. Indeed, the Board's own procedures, set forth in the January 28 Order, compel this conclusion.

LILCO also attempts in its Response to argue, in essence, that this Board should strike the testimony proffered by the County and State. The Board certainly did not intend LILCO's Response to be a motion to strike pre-filed testimony (the January 28 Order gives no indication that that was the Board's intent). Accordingly, the. Board should reject summarily LILCO's transparent attempt to color its strike motion in the guise of the response authorized by the January 28 Order. In the alternative,: the Board must provide the County and State with an opportunity to oppose LILCO's unauthorized motion to strike.

Finally, in its Response, LILCO attempts to submit addi-tional evidence in the form of two affidavits and other attach-ments. LILCO's attempt violates this Board's Orders of January l

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4 ("LILCO will file with its Motion [to Reopen] the evidence it proposes to have considered" (Tr. 15,794 (Laurenson)) and January 28, 1985 (emphasis added). The procedure established for LILCO's proposed reopening nowhere contemplated the filing by LILCO of additional or rebuttal testimony, affidavits, or other evidence after it had moved to reopen the record. There-fore, the affidavits o,f Messrs. Weismantle and Lieberman and the other attachments to LILCO's February 26 Response should be disregarded by the Board.

We turn now to specific points in LILCO's February 26 Re-sponse which require a County / State reply.

1. LILCO asserts that since the authenticity of its doc-uments is not addressed by the County's and State's February 19 filing, "those documents are unchallenged" and "therefore should be admitted into the record." Response, at 3. This as-sortion is without merit. Admittedly, the County and State have not challenged the authenticity of LILCO's documents.

However, it cannot seriously be suggested that their substance has not been challenged, in light of the testimony filed by the County and State. In addition, the County / State position on the admissibility of LILCO's documents has been clear from the time LILCO first moved to reopen the evidentiary record: if L__.

those documents are admitted into evidence, the testimony proffered by the County and the State must also be admitted, and an opportunity must be provided for cross-examination of LILCO's witness.

2. LILCO argues that the submission of cross-examination plans only to the Board, consistent with all prior practice in this proceeding, does not comply with the Board's January 28 Order and " denies LILCO the opportunity to respond." Response, at 3. Nonetheless, LILCO filed a 38-page Response, with addi-tional affidavits and other documents attached. Thus, it is absurd for LILCO to assert that it was somehow denied an oppor-tunity to respond to the County / State February 19 filing. It is equally absurd for LILCO to suggest that parties are enti-tied to " respond" to an opponent's cross-examination plan.

3. LILCO argues that the County's and State's February 19 testimony fails to address the merits of LILCO's designation of the Nassau Coliseum as a monitoring and decontamination fa-cility and instead raises issues outside the scope of the Board's January 28 Order. Therefore, in LILCO's view, the County and State are required to meet the Commission's reopen-ing standards and/or standards for admission of new contentions before the February 19 testimony can be found admissible by the

Board. Response, at 3-4 and throughout. This argument is baseless.

Contrary to LILCO's unsupported assertion, the February 19 testimony clearly addresses the merits of LILCO'.s designation of the Nassau Coliseum, precisely the matter identified in the Board's January 28 Order. In addition, the testimony necessar-ily addresses other aspects of LILCO's proposed Plan, since LILCO's designation of the Coliseum has substantial ramifica-tions upon these different aspects of the Plan. LILCO chose to ignore these ramifications in its January 11 submission of evi-dence.~ However, LILCO's failure to address matters which are clearly relevant to existing admitted contentions and the ade-quacy and implementability of LILCO's latest relocation center scheme does not render inadmissibfe perfectly proper testimony on those subjects by the County and State. Rather, LILCO's failure to address these relevant matters merely underscores the inadequacies of LILCO's latest relocation center proposal.

If the-Board were to accept LILCO's truncated view of what is relevant (i.e., LILCO defines the scope of admissible testimo-ny, rather than admitted contentions defining the scope), the Board would commit clear error.

4. LILCO asserts that every piece of the County's and State's testimony is " untimely" (see, e.g., Response, at 6, 11, 14, 17, 20, 26, 29) on the theory that each of the issues raised by the County and State supposedly could have been raised with respect to the relocation centers LILCO had pro-posed in its three earlier relocation center schemes. The spe-clousness of this argument is obvious. Nonetheless, several comments are necessary.

First, none of LILCO's prior relocation center schemes ever involved a concrete reality; LILCO never had an agreement with any of the various facilities it proposed during the peri-od May 1983 through October 1984, as Intervenors stated in their original Contentions 24.N and 24.0. It was clear from the beginning, to all except LILCO, that LILCO's " proposals" to utilize various named facilities were precisely that -- " pro-posals," and nothing else. To have submitted testimony going to the merits of their use as relocation centers -- when, as a threshold matter, they were categorically unavailable for that purpose -- would have been a waste of time and resources.

Thus, the issues addressed in the County / State February 19 tes-timony did not exist, and a discussion of them could not have taken place, until after LILCO came up with (1) a facility that actually purported to be available for use as a relocation

center, and (2) a relocation scheme that was final and related to actually-available real facilities. See Suffolk County and State of New York Proposed Findings of Fact and Conclusions of Law on Offsite Emergency Planning (October 26, 1984), at 421-26, 430-31. Clearly, that did not happen until October 30, 1984, when, for the first time, LILCO produced some evidence that a facility actually might be available for LILCO's use as a relocation center, and indicated that it intended to use the Nassau Coliseum as a " reception center" in an overall reloca-tion scheme also involving " congregate care centers."

Second, it is important to remember that this reopening of the record occurred at LILCO's reauest, and over Intervenors' objection based on LILCO's untimeliness, solely to enable LILCO to attempt to fill a void its own prior failures concerning re-location schemes had left in the evidentiary record. In this context, LILCO's suggestions that Intervenors are " untimely" in responding to LILCO's new evidence and that Intervenors must meet a reopen'ng or late-filed contention standard in re-cponding to LILCO's new evidence are wholly without basis in fact, logic or reason. LILCO cannot have it both ways: either LILCO must rely on the old record (and clearly lose); or all parties (not just LILCO) must have a fair opportunity to liti-gate all facts pertinent to LILCO's latest scheme. Again, to l

r accept LILCO's one-sided view of proper procedures would be to commit clear error.

In sum, given the history of the relocation center litiga-

tion before this Board, it must be concluded that LILCO's "un-timeliness" argument is nothing but a request by LILCO for spe-cial treatment from the Board, and thus an invitation to the Board.to commit error. The relocation center issues were liti-gated in 1984 and the County and State clearly prevailed on those issues. This Board, over County and State objections, ruled in January that LILCO should have yet another chance --

its fourth -- to try and carry its burden of proof. LILCO wants to add to that, however, that the County and State essen-tially are bound to last year's record -- so that any evidence that conceivably might have been thought of last year (but was unnecessary to the County and State prevailing) would now be inadmissible. We repeat that LILCO cannot have it both ways.

'If LILCO is entitled to a new chance to prove its case, the County and State are entitled'to an equal chance to oppose LILCO's case. The concept of untimeliness, therefore, is just a device by which LILCO attempts to buttress its case, rather than a _ justifiable legal principle in this reopened proceeding.

5. LILCO asserts that the testimony of Leon Campo is "outside the scope" of, or " irrelevant" to, this proceeding.

Response, at 4-5. This assertion is based upon LILCO's view that the Board, in reopening the record , only intended to per-mit the parties to submit testimony or other evidence on the merits of LILCO's designation of the Nassau Coliseum, and that, according to LILCO, Mr. Campo's testimony provides no evidence on LILCO's proposed use of the Coliseum, but instead addresses congregate care center issues. This LILCO argument is com-pletely without basis. Whether Mr. Campo focuses on the " con-i gregate care" portion rather than the " reception center" por-tion of LILCO's latest relocation scheme is immaterial. Clear-ly, the fact that the so-called " agreements" between the Red Cross.and proposed congregate care centers, relied upon by LILCO in its documents filed on January 11, do not exist is something that this Board cannot ignore. Indeed, what could be more relevant to a contention that there are no agreements with facilities relied upon for relocation purposes (Contention 24.N) than Mr. Campo's testimony that, in fact, no such agreements exist?1/

7/ Indeed, since Mr. Campo advised the Board in his February 19 testimony that the East Meadow Union Free School Dis-trict had not entered into any agreement with LILCO or the Red Cross to shelter Shoreham evacuees, at least four other school districts have informed the Board that they (Footnote cont'd next page)

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6. LILCO also asserts that Mr. Campo's testimony is un-timely and should therefore be disregarded by the Board. Re-sponse, at'6-10. In essence, LILCO's arguments consist of unsupported, conclusory allegations and wishful thinking that boil down:to nothing but a suggestion that this Board should ignore..the plain facts set forth by Mr. Campo. Obviously, to

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follow LILCO's suggestion would be a plain violation of the

. Board's_ obligations under NRC regulations.

'For example, as'noted by LILCO (Response, at 7), the issue of the availability of the buildings relied upon by the Nassau County Red Cross was touched upon in the August 1984 litigation of one of LILCO's earlier relocation center schemes. At that time, Frank Rasbury, the Executive Director of the Nassau Coun-ty Red Crosn, testified on LILCO's behalf. Mr.-Rasbury's tes-timony included discussion about the agreements that then

_(Footnote cont'd from previous page) also have no agreementsjwith the Red Cross or LILCO per-raitting the use of their facilities to shelter Shoreham evacueos. . Copies of letters written'by the superinten-1 dents of the Garden City Public Schools, the West Hempstead Union Free School District and Oceanside Union Free School District were attached to the County / State March 1 Motion. Attached to this reply is a copy of a similar letter written by the superintendent of the Lawrence Public Schools and recently received by the Coun-ty and State.

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allegedly existed between the Red Cross and various Nassau County entities and organizations to permit the sheltering of persons during " emergencies." Mr. Rasbury testified that it was his understanding, based upon discussions and ongoing con-

. tacts with those entities and organizations, that the buildings offered to the Red Cross would be available for any kind of emergency, including one at Shoreham. See, e.g., Tr.

14,760-62, 14,771-72 (Rasbury). This testimony is directly called into question by Mr. Campo's proffered testimony and by the numerous letters which have been written by other Nassau County school officials and provided to this Board. The Board cannot ignore Mr. Campo's testimony and the questions it raises concerning the reliability of testimony previously submitted by LILCO, particularly since in its January 11 submission, LILCO again purports to rely on these non-existent " agreements."

LILCO attempts to skirt the apparently erroneous Rasbury testimony and its own reliance upon phantom agreements by al-leging that the individual agreements between the Red Cross and the relocation centers on which it relies are a " level of de-tail unneepssary for this Board to scrutinize . . . . Re-sponse, at 7-8, n.4. This assertion is ridiculous, particular-ly in light of the testimony proffered by Mr. Campo and the letters concerning the unavailability of sheltering facilities

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which have been written by other Nassau County school officials. Indeed, how can the availability of the very facil-ities relied upon to comply with 10 CFR $$50.47(b)(8) and

.50.47( b)(10),and NUREG 0654,Section II.J be deemed a mere de-tail? The answer is clear: only if one is bent on ignoring reality and approving LILCO's Plan regardless of LILCO's mani-fest lack of preparedness. The Board should not become a party to LILCO's attempted covarup scheme; nor should it tolerate such irresponsible actions as LILCO would suggest.

Equally ridiculous is LILCO's assertion that Mr. Campo's testimony provides "little in the way of probative evidence regarding relocation centers for Shoreham." Response, at 8.

Mr. Campo's testimony makes clear that "[t]here are numerous reasons "Sieh make [the East Meadow Union Free School District]

inappropriate for'use in the event of a radiological emergency" at Shoreham. See Campo Testimony, Attachment 1. Further, LILCO's lame attempt to attribute the unavailability of the East Meadow school buildings to "the misconception . . . that the congregate care centers would be used for monitoring and decontamination" (Response, at 8, n.5) is without basis. In-deed, the very,same paragraph relied upon by LILCO to support its assertion makes clear that the 3 is no misconception:

rather, there is noingreement for the use of the East Meadow l_ '

facilities "for purposes of monitoring, decontamination, cg-relocation in the event of an emergency at Shoreham." Campo testimony, Attachment 2 (emphasie added).

In short, the Board is now confronted with a record which raises serious doubts as to the availability of facilities to shelter evacuees during a Shoreham emergency and the credibili-ty of LILCO's witness, Mr. Rasbury. Indeed, LILCO itself ac-knowledges the predicament it faces in going so far as to as-sert that "even without agreements, the Red Cross would provide shelter for those needing it during a [Shoreham) emergency."

Response, at 9. Such a statement is unfounded and unsupportable, and merely highlights the need for an evidenti-ary hearing regarding LILCO's newest relocation center scheme.

7. LILCO asserts that the testimony of Dr. James H.

Johnson, Jr. "is not probative." Response, et 11-13. This as-sertion goes solely to the weight to be accorded Dr. Johnson's testimony,.and is based on LILCO's presumption that, upon prop-er cross-examination, Dr. Johnson would have "no basis" for his opinions and no " evidence, literature or studies to support his hypothesis." Response, at 11, 12. LILCO conveniently ignores the fact that in his testimony, Dr. Johnson cites specific sur-veys that support his opinions. Should LILCO wish to probe the 1

bases for such testimony further, it can do so during a hearing. However, at this time, LILCO's conclusory assertion that the testimony "is not probative" must be rejecte? 8./ An argument about how much weight should be accorded testimony is inappropriate in the " response" contemplated by the January 28 >

Order.

8. LILCO also contends that Dr. Johnson's testimony is untimely. Response, at 10-11. LILCO supports this conclusion by reasoning that "Intervenors have known since last July that all relocation centers and any reception center that might be established were to be in Nassau, not Suffolk County." There-fore, in LILCO's view, any concerns regarding the distance of the Nassau Coliseum or any other facility from the plant, including concerns that such distance will increase in the minds of the public the degree of the perceived danger from a Shoreham accident, should have been raised last summer, "either in connection with the congregate care centers, or with the then-undesignated reception center . . . . Response, at 10.

8/ The FEMA informal discovery response (attached to LILCO's

-Response) addresses almost exclusively the location of congregate care centers from plant sites -- not centers for monitoring and decontaminating evacuees, which is the subject of Dr. Johnson's testimony. Accordingly, LILCO's suggestion that the FEMA documents should have been refer-enced by Dr. Johnson (Response, at 13) is without basis.

E.

The County and State need respond only briefly to this LILCO argument. It'is plainly ridiculous for LILCO to assert that any concerns should have been raised by the County or State even before LILCO identified what facility it intended to rely upon as a relocation or reception center. Even though LILCO did assert last summer that it " intended" to rely on unidentified centers in Nassau County, it had announced similar

" intentions" to rely on several different facilities many times before and then changed its mind when those facilities proved to be unavailable. Clearly,_the County'and State had no reason to assume that'the Nassau County " intention" was any more like-ly to_ turn into a reality than LILCO's other proposals that were consistently abandoned. Similarly, there is no require-ment, nor would one make' sense, that an applicant's "inten-tions" -- rather than the contents of its offsite emergency plan -- form the basis for. litigation.

Furthermore, Dr. Johnson's' testimony addresses issues par-ticular to the Nassau Coliseum and its location in relation to the Shoreham plant, including shadow phenomenon data from sur-veys of the population in the area of the Coliseum, and Dr.

Johnson's opinions on why the evacuation shadow will increase

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if LILCO were actually to direct evacuees to the Coliseum for monitoring and. decontamination during a Shoreham emergency.

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This testimony could not have been rendered any earlier, and it does not " simply rehash [] old ' shadow phenomenon' ground," as suggested by LILCO. Response, at 11. It is plainly specific to the particular facility LILCO now intends to rely upon.

Thus, LILCO's claim that Dr. Johnson's testimony is untimely

.should be summarily rejected.

9. LILCO asserts that Dr. Radford's testimony " offers no data" to support his hypothesis that use of the Nassau Coliseum would likely result in an incremental increase in adverse health effects, and that his testimony therefore fails to "ad-vance the record" on the Nassau Coliseum issues. Response, at 13-14.. This assertion is without merit. Dr. Radford's testi-many is based upon his professional opinions and the testimony uof qualified traffic experts (Chief Roberts and Mr. Kilduff).

This Board has previously ruled that the factual support for a witness' expert opinion can properly be premised on the testi-mony of others,9/ and clearly, LILCO can further probe the bases for Dr. Radford's conclusions upon cross-examination.

Again, this LILCO " objection" goes to the merits of the Radford testimony and is improper in the kind of response contemplated 9/

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See, e.g., Order Ruling on Motions to Strike, dated January 16, 1984, at 5-6.

by the January 28 Order. Arguments about the weight and merits of factual and opinion testimony must await a hearing and cross-examination. Therefore, Dr. Radford's proffered testimo-ny must be admitted by the Board.

10. LILCO also asserts that Dr. Radford's testimony is untimely in that it raises concerns that LILCO may not be able to monitor and decontaminate the number of persons who may re-port to the Nassau Coliseum during an emergency at Shoreham.

In LILCO's view, "the issue of LILCO's monitoring and decontamination has already been litigated," and, as a result, this Board should refuse to consider Dr. Radford's concerns.

Response, at 14. However, the mere fact that Contention 77 (thyroid monitoring equipment) concerning LILCO's monitoring equipment procedures nas been litigated does not foreclose lit-igation of issues raised for the first time by LILCO in its new ,

proposal to use the Nassau Coliseum for monitoring and decontaminating Shoreham evacuees. LILCO's proffered evidence of January 11 for the first time revealed that LILCO now in-tends to direct all evacuees to the Coliseum (see Robinson Af-fidavit, Attachment 3). All prior relocation schemes proposed by LILCO involved the use of at least three, and up to five, separate facilities for decontamination and monitoring. Thus, Dr. Radford's concerns relating to the concentration of all

,- .i such activities for all evacuees.in a single facility could not have been earlier raised.

11. -LILCO attacks on a number of grounds the testimony

-proffered by Chief Roberts and Mr. Kilduff. For example, LILCO asserts that the testimony "does little more than talis-manically recite themes that were litigated in the traffic-related contentions (Contentions 23, 65, 66 and 67)"

and, accordingly, is untimely. Response, at 15. The proffered testimony focuses on LILCO!s proposed use of the Nassau Coliseum, and the traffic problems that must be anticipated by evacuees attempting to re ch that facility during a Shoreham accident. None of the previously submitted traffic testimony dealt'at all with the Nassau Coliseum area -- at the time of that litigation, LILCO was proposing to disperse evacuees in three different directions to facilities much closer to the EPZ

'than the Nassau Coliseum. Of course, there are similarities between the " theme" of the proffered testimony and that of tes-timony previously litigated; after all, the purpose of all such testimony is to address the traffic congestion and delays that

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n must be anticipated in the event of a Shoreham emergency. How-ever, the Roberts /Kilduff testimony specifically discusses problems peculiar to the Nassau Coliseum area (see e.g., the Kilduff Testimony, at 4-5, which discusses the problems

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associated with the interchange configuration between the  !

Northern State Parkway and the Meadowbrook Parkway; see also the Roberts Testimony, at 8, which discusses the Coliseum's in-adequate parking capacity). It also contains detailed data regarding driving times between the Shoreham EPZ and the Coli-seum (see the Roberts Testimony, Attachment 1). Such testimony clearly was not, and could not have been, preffered earlier.10/

LILCO also asserts that the testimony of Chief Roberts and Mr. Kilduff is an " attempt to expand planning boundaries beyond the 10-mile EPZ."' Response, at 15. We need only respond briefly to this LILCO argument. First, there is no expansion of the EPZ, as LILCO certainly knows. Thus, LILCO's argument first and foremost is a flimsy strawman. Second, it is LILCO's recent proposal to use a facility located 43 miles from the

--10/ LILCO suggests that concerns about traffic conditions are "largely generic to any relocation center located on Long Island" and thus argues that the Roberts /Kilduff testimony should have been filed earlier. As an example, LILCO as-serts that the testimony could have been filed in connec-tion with its proposal to use SUNY-Farmingdale as a relo-cation center. Response, at 17 and n.10. LILCO, however, never had an agreement to use SUNY-Farmingdale or any

.other facility on Long Island as a relocation center prior to October 1984, by which time the evidentiary record had closed. To have submitted testimony going to the merits of LILCO's proposed facilities, even though they were unavailable for LILCO's use, would have been a waste of time and resources.

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plant that has created the need to address matters well beyond the 10-mile EPZ. Indeed, it can hardly be suggested that be-cause the proffered testimony addresses potential congestion that could affect the use of the Massau Coliseum as a moni-toring/ decontamination center, it is beyond the scope of this proceeding, when LILCO's witness Ms. Robinson also addresses such congestion in the parking lots and streets surrounding the

' Coliseum in her affidavit. Clearly, LILCO simply wants one standard to apply to the admission of its testimony and a whol-ly different standard to apply to deny admission of the testi-mony of the County and State. Such a result is contrary to the Commission's regulations and to basic principles of fairness.

LILCO next argues that the driving times in Chief Roberts' testimony are not linked to NUREG 0654,Section II.J.12. Re-sponse, at 18. However, the time needed to get from a LILCO transfer point (already outside the EPZ) to the Nassau Coliseum must be added to the time necessary to get out of the EPZ (al-ready discussed in litigation of Contention 65, and estimated by LILCO, for the full EPZ, to be between 4-1/2 to 6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-6 months <br />, and by the County and State to be between 12-17 hours) which clear-ly shows LILCO's noncompliance with the 12-hour monitoring time in Section II.J.12.11/

11/ LILCO mischaracterizes Chief Roberts' testimony in its February 26 Response. That testimony does not state that (Footnote cont'd next page) a

- LILCO also asserts that the Roberts and Kilduff testimony

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-is'" factually flawed" because it assumes that all EPZ evacuees will travel to the Coliseum.- Response, at 18. - LILCO's own proffered evidence (Robinson Affidavit, Attachment 3), however, explicitly states that "all evacuees will be directed to go to the Coliseum."' Further, in asserting that the' testimony at-

-tempts-to relitigate issues already litigated (Response, at 18-19), .LIlCO confuses the number of evacuees who ~will likely seek shelter in relocation centers (now proposed by LILCO as separate _" congregate care centers"), with the number of evacuees who will go to the Coliseum to be monitored and idecontaminated. 1&ue first issue was litigated previously and is not-discussed in the February 19 testimony; the second issue was not.

Finally, LILCO acknowledges that the testimony of Chief Roberts regarding the-available parking capacity at the Nassau Coliseum is relevant to the Coliseum's suitability as a moni-toring/ decontamination facility, but nevertheless contends that

-(Footnote cont'd from previous page) two hours is the " maximum driving time to the Coliseum" (Response, at 18); indeed, it makes clear that during an emergency at Shoreham, actual driving times would likely be hours longer than the times compiled by the Suffolk County Police under normal traffic conditions.

the testimony is " premised on the faulty assumption that all EPZ residents will report to the Nassau Coliseum" and should therefore be rejected by the Board. Response, at 19. LILCO's argument'is an impermissible attack upon the merits of Chief Roberts' testimony, which is inappropriate in the response per-mitted by the January 28 Order. An allegation that an oppo-nent's testimony is factually wrong is something that is pursued during a hearing, through cross-examination or submis-sion of rebuttal testimony. Such a bare allegation, however, cannot support a refusal to admit evidence for consideration by the fact finder.

if

-Furthermore, LILCO's argument purports to be based upon the affidavit of Mr. Lieberman which, as previously mentioned, should be disregarded by the Board, since it constitutes unauthorized rebuttal testimony by LILCO. Even if the Li.sberman affidavit were considered, it would not resolve the factual issue before the Board regarding the adequa-cy/ inadequacy of parking at the Coliseum. Rather, it merely

%.kes issue with the expert opinions contained in the proffered testimony of Chief Roberts. Thus, it underscores the need for an evidentiary hearing to resolve such factual disputes between the parties.

e

12. With respect to the testimony of State witnesses Langdon' Marsh and Sarah Meyland, LILCO pe'sistently asserts that the matters raised by these witnessas are " matters for New York State agencies" that~are "not cognizable" in this proceed-ing,.or are " irrelevant to NRC regulations." See, e.g., Re-sponse, at 20, 24, 26, 27, 30, 33-36. LILCO's assertions are plainly wrong. How can LILCO suggest that this Board cannot recognize the fact that LILCO's latest relocation center scheme is illegal because it clearly violates applicable New York State laws? Similarly, how can LILCO suggest that documented potential harm to the public's health and safety resulting from IILCO's latest relocation center proposal is "not relevant to NRC regulations," which are expressly designed to protect the public's health and safety? Whether New York State agencies may independently seek to prosecute violations of New York State law is not the issue. The fact is that this Board, by law, cannot close its eyes to facts which indicate that LILCO's proposal cannot lawfully be implemented and that, if imple-mented, could seriously endanger the residents of Suffolk and Nassau Counties.

13. LILCO also asserts that Mr. Marsh's testimony regarding Nassau County's failure to prepare an environmental assessment, pursuant to ECL $ 8-0109(2) of the New '.'ork State Environmental Quality Review Act ("SEQRA"), for the use of the Nassau Coliseum is untimely, since "[t]he issue of compliance with SEQRA is'the same at any facility designated as a reloca-tion center," yet was never before raised by the County or the State. Response, at 20. We need only repeat what has been said before prior to October 1984, LILCO had no agreement to use any facility as a relocation center and, therefore, to have submitted testimony on the merits of a LILCO proposal which had no basis in reality would have been a waste of time and re-sources. Moreover, since the facilities relied upon by LILCO in its earlier relocation center schemes were known by all ex-cept LILCO to 'ce unavailable for the use proposed by LILCO, there was no reason to discuss the environmental impact of such a proposed use. Accordingly, the proffered testimony, contrary to LILCO's assertion, is timely.

14. LILCO attempts to argue that, as a matter of law, SEORA does not apply to LILCO's proposed use of the Nassau Col-iseum as a decontamination center. Response, at 21-25.

LILCO's arguments, however, are irrelevant and, in any event, incorrect. Moreover, whether LILCO believes that New York's witness, the Executive Deputy Commissioner for the New York State Department of Environmental Conservation, has improperly interpreted or applied the law he is by statute empowered and required to administer and enforce, simply does not matter.

The fact which this Board cannot ignore is that responsible officials of the State of New York have taken the position that LILCO's proposed use of the Nassau Coliseum violates State law, and Nassau County's purported " agreement" to permit LILCO to use the Coliseum is therefore without effect, since without an environmental impact statement, or a negative declaration, Nassau County has no power to permit the use requested by LILCO. Since in its newly submitted evidence LILCO relies upon this purported Nassau County " agreement," this Board must con-sider the evidence submitted by New York Sta' a which demon-strates that the " agreement" is without effect.

15. LILCO baldly asserts, without citation or explana-tion, that "New York State's actions indicate that their [ sic]

primary interest in this issue is to delay further a decision in the emergency planning proceedings." Response, at 24. This assertion is baseless and should be rejected out of hand. Fur-ther, contrary to LILCO's suggestions, the very cases cited by LILCO (Response, at 24, 25) make clear that the four-month lim-itation period for court action relating to SEQRA noncompliance does not even begin to run until after the agency (here, Nassau County) has either issued a negative declaration or performed an environmental impact study -- neither of which has occurred I

l i

yet in this case. See, Ecology Action v. Van Cort, 417 N.Y.S.2d 165, 169 (Sup. Ct. 1979); Town of Yorktown v. N.Y.S.

Dept. of Mental Hygiene, 459 N...S.2d 891, 892 (App. Div.).

aff'd., 466 N.Y.S.2d 965, 453 N.E.2d 1254 (N.Y. 1983).

16. LILCO also attempts to have this Boa.rd ignorrt the testimony of Mr. Marsh regarding the Coliseum's failure to ob-tain a New York State SPDES permit permitting the discharge of wash water after people and vehicles have been decontaminated at the Coliseum. Response, at 25-29. The two grounds relied upon by LILCO are familiar ones: that the issue could have

.been raised earlier, since it would have been the same for any of the relocation centers previously designated by LILCO; and that this matter must be pursued by New York State agencies and is irrelevant to NRC regulations. We will not repeat here our response to these arguments, but rather refer the Board to the discussion"in paragraphs 12 and 13 above.

LILCO also asserts that "no relocation center for any other nuclear plant in New York State has been required to apply for a SPDES permit" (Response, at 27, n.12) or "has been the subject of a state environmental impact statement" (Weismantle Affidavit, 1 1). Not only is this kind of factual argument improper in LILCO's Response, which is supposed to go l

only to the admissibility and need for a hearing, it is also inapposite and misleading. Among other things, LILCO neglects to mention that each of the operating nuclear plants in New York State began commercial operation before the effective dates of both the State Environmental Quality Review Act

("SEQRA") and the Environmental Conservation Water Pollution Control Act. That is not the case for Shoreham.12/

17. LILCO attacks the testimony of Ms. Meyland on a num-bor of grounds. The first ground -- untimeliness -- echoes the same LILCO theme: that the issues raised could have been addressed earlier when LILCO identified other proposed reloca-tion center facilities. Response, at 29, 30-31. Again, rather than to repeat arguments previously made, we merely refer the Board to the discussion above.

LILCO also refers to Contention 81 and argues that the proffered testimony by Ms. Meyland is improper. Response, at 29-33. However, the mere fact that Contention 81 and LILCO's testimony on that contention mentioned " contaminated water" 12/ SEORA became effective on September 1, 1976; the Environ-mental Conservation Water Pollution Control Act (SPDES permit) became effective on August 4, 1978. The licensed plants in New York State are Nine Mile Point I, Ginna, Indian Point II, Fitzpatrick, and Indian Point III, which began commercial operation December 1969, 1970, August 1973, July 28, 1975, and August 30, 1976, respectively.

l

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does not bar the proffered New York State testimony concerning the new, previously undisclosed health threat posed by LILCO's recent proposal to decontaminate potentially thousands of auto-mobiles and persons at the Nassau Coliseum, where contaminated water would threaten the water supply relied upon by residents of Brooklyn, Queens, Nassau and Suffolk Counties.

LILCO further argues that NRC regulations "do not require particular provisions for decontaminating the general public."

Response, at 34. This argument, even if accepted as true (and the County and State do not do so), is beside the point, in the face of the clear threat to public health and safety that is created by LILCO's proposed use of the Nassau Coliseum. Testi-many on that threat is clearly relevant and probative and can-not be ignored by this Board.

t

III. CONCLUSION.

For the foregoing reasons, the County and State submit that the testimony proffered on February 19 should be admitted by the Board and a hearing on the testimony should be held.

Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney H. Lee Dennison Building Veterans Memorial Highway Hauppague, New York 11788 Lawrence Coe Lanpher Karla J. Letsche Michael S. Miller KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 Attorneys for Suffolk County fdWG. Pa/!6 (wa)

Fabian G. Palomino Special Counsel to the Governor Executive Chamber, Room 229 State Capital Albany, New York 11224 Attorney for Mario M. Cuomo, Governor of the State of New York

'W -[X M

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Mary G6ndrum Assistant Attorney General New York State Department of Law March 20, 1985

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'awrence Public Schools

• Pcst Ofte Sox 4S8 Telephone Cedarnest. New Yors 115:6 516 295-2700 Jvm J. Baron

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c, Mr. Morton B. Margulies cc%y, . .: ,

Administrative Law Judge "

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Atomic, Safety & Licensing Board Panel

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 SERyg g g

Dear Mr. Margulies:

I have.recently become aware that the American Red Cross and the Long Island Lighting Company have designated the campus of the Lawrence Junior High School as e. relocation center in the event of a radiological emergency at the Shoreham Nuclear Power Station.

Please be advised that the Lawrence Public Schools have not entered into any agreement with the American Red Cross or LILCO to serve as a relocation center, or as a decontamination and monitoring facility, for a Shoreham emergency. Any such agreement would have to have been approved by us, and no such approval has been granted. The Lawrence School District has entered into an agreement with the American Red. Cross concerning the use of the district schools as mass care shelters, but that agreement does not grant the American Red Cross or LILCO permission to use our campuses as relocation centers, or as decontamination and monitoring facilities, pursuant to LILCO's proposed plan to deal with a radiological emergency at Shoreham.

In addition, the Governor of the State of New York has determined that the State of New York will not participate in the implementation of the off-site radiological emergency response plan for Shoreham proposed by LILCO. In accordance with the Governor's position, the campuses of the Lawrence Public Schools will not be available to the American Red Cross or LILCO for use in implementing the LILCO Plan.

As Superintendent of the Lawrence Public Scho' 3, I am advising

. you that we have not entered into any agreement to serve as a relocation center, or as a decontamination and monitoring facility , in the event of a radiological emergency at Shoreham.

Very truly " urs, y$/h4L- Alvin J. maron AJB:JB SupednteMent c.c. Members of the Board of Education .

s Mr. Carson u:

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i-UNITED STATES OF AMEliICA CJtXETED NUCLEAR REGULATORY COMMISSION UDE Before the Atomic Safety and ,

1 censing Board A!0 :27

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In the Matter of ) cm@;;

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LONG~ ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of Suffolk County and State of New York Motion for Leave to File Reply to LILCO's Answer and NRC Staff's Response to Motion to Admit New Contention, with

. Reply attached, and Suffolk County and State of New York Reply to L1LCO's Response to February 19 Proffered Testimony on the ,

Designation of Nassau Coliseum,as a Monitoring and Decontamination .

Center have been served on the following thin 20th day of March, 1995, by U.S. mail, first class, except as otherwise noted.

Morton B.'Margulies, Chairman

• Edwin J. Reis,,Esq.*

Atomic Safety and Licensing Board Bernard M. Bordenick, Esq.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Com.

Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry R.-Kline

• W. Taylor Reveley, III, Esq. **

Administrative Judge Hunton a Williams Atomic Safety and Licensing Board P.O. Box 1535 U.S. Nuclear Regulatory Commission 707 East Main Street Washington, D.C. 20555 Richmond, Virginia 23212 Mr. Frederick J. Shon

• Ms. Donna D. Duer*

Administrative Judge Atomic Safety and Licensing

-Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Edwnrd M. Barrett, Esq.

General Counsel Mr. Jay Dunkleberger Long Island Lighting Company New York State Energy Office 250 Old Country Road Agency Building 2 -

Mineola, New York 11501 Empire State Plaza Albany, New York 12223 v v-- 4 n-, -- , g- -n + , , w - a- m.- wn----,w --,e --

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Spence Perry,-Esq. Stephen B. Latham, Esq.

Associate General Counsel Twomey, Latham & Shea I

--Federal Emergency Management Agency P.O. Box 398 l Washington, D.C. 20472 33 West Second Street Riverhead, New York 11901 Mr. Brian R. McCaffrey l Long Island Lighting Company. Ms. Nora Bredes  !

Shoreham Nuclear Power Station Executive Director n P.O. Box _618 .

Shoreham opponents Coalition North Country Road . 195 East Main Street Wading River, New York 11792 Smithtown, New York 11787

-Joel Blau, Esq. MHB Technical Associates

.New York Public Service Commission 1723 Hamilton Avenue i The. Governor Nelson A. Rockefeller Suite K Building San Jose, California 95125 Empire State Plaza Albany, New York 12223 Hon. Peter F. Cohalan Suffolk County Executive Martin Bradley Ashare, Esq. H. Lee Dennison Building Suffolk County Attorney Veterans Memorial Highway

.H. Lee Dennison Building Hauppauge, New York 11788 Veterans Memorial Highway t Hauppauge, New York 11788 Fabian Palomino, Esq. **

. Special Counsel to the Atomic Safety and Licensing Board Governor i Panel Executive Chamber U.S. Nuclear Regulatory Commission Room 229 Washington, D.C. 20555 State Capitol Albany, New York 12224

, Docketing and Service Section office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board 1717 H Street, N.W. U.S. Nuclear Regulatory Washington, D.C.

20555 Commission Washington, D.C. 20555 James B. Dougherty, Esq.

3045 Porter Street, N.W. Jonathan D. Feinberg, Esq.

Washington, D.C. 20008 Staff Counsel New York State Public

^

Mr. Stuart Diamond Service Commission Business / Financial 3 Rockefeller Plaza

-NEW YORK TIMES Albany, New York 12223 229 W. 43rd Street

. New York, New York 10036 E

a h

o Stewart M. Glass, Esq. Mary Gundrum, Esq.

Regional Counsel New York State Department Federal Emergency Management of Law Agency 2 World Trade Center, Rm. 4614 26 Federal Plaza, Room 1349 New York, New York 10047 New York, New York 10278

' ~

Michael S'. Miller KIRKPATRICK & LOCKHART 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 DATE: March 20, 1985 4

• By Hand

• • By Federal Express 4

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