ML20150F778
| ML20150F778 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/11/1988 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#388-6788 OL-3, NUDOCS 8807190047 | |
| Download: ML20150F778 (118) | |
Text
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O UNITED STATES j
NUCLEAR REG'JLATORY COMMISSION summmmmmmmmmmmmmmmmmmmmmmmmm..........
In the Matter of:
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LONG ISLAND LIGHTING COMPANY
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Docket No.
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50-322-OL-3 (Shoreham Nuclear Power Station,
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Unit 1)
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l O
EVENING SESSION
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l TAGES:
21175 dirough 21290 f
PLACE:
Bethesda, Maryland i
DATE:
July 11, 1988
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....................................................m
,O 8807190047 880711 PDR ADOCK 05000322 PNU
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T HERITAGE REPORTING CORPORATION O
Q$ledefReportsPr 1228 L Senet, N.W., Sehe 400 WasMageon, D.C. 20005 (2espasases
1 21175 1
UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
(~T 2
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In the Matter of:
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3
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Docket No.
LONG ISLAND LIGHTING COMPANY
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50-322-OL-3 4
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(Emergency Planning)
(Shoreham Nuclear Power
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5 Station, Unit 1)
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6 EVENING SESSION
- Monday, July 11, 1988 7
East-West Towers Building 8
4350 East-West Highway Bethesda, Maryland 9
The above' entitled matter came on for further 10 hearing at 6:01 p.m.
11 BEFORE:
HON. JAMES GLEASON, Chairman of the Board 12 For the Board:
13 JUDGE JERRY KLINE JUDGE FRED SHON 14 APPEARANCES:
(
On behalf of Applicants:
16 DONALD P.
IRWIN, ESQ.
17 JOSEPH M. SPIVEY, III, ESQ.
K.
DENNIS SISK, ESQ.
18 Hunton & Williams 707 East Main Street, P.O. Box 2535 19 Richmond, Virginia 23212 20 21 22 23 24 25 Heritage Reporting Corporation i
(202) 628-4888 i
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APPEARANCES:
(cont' d)
()
2 On behalf of the Intervenors:
3 RICHARD J.
ZAHNLEUTER, ESQ.
Deputy Special Counsel to the Governor 4
Executive Chamber, the Capitol, Room 229 Albany, New York 12224 5
KARLA J.
LETSCHE, ESQ.
6 J. LYNN TAYLOR, ESQ.
LAWRENCE LANPHER, ESQ.
7 Kirkpatrick & Lockhart 1800 M Street, N.W.
8 Washington, D.c. 20036-5891 9
On behalf of the Nuclear Regulatory Commission:
10 LISA CLARK EDWIN REIS 11 MITZI YOUNG NRC Staff Counsel 12 Washington, D.c.
20555 13 On behalf of t he Federal Emergency Management Agency:
14 WILLIAM R. CUMMING, ESQ.
()
15 500 C Street Washington, D.C.
20472 16 17 18 19 20 21 22 23 24 25 heritage Reporting Corporation
/'T (202) 628-4888 U
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RQHIEHIa VOIR 2
WITNESSES:
DIRECT CROSS REDIRECT RECROSS plEE 3
Panel:
4 James D. Papile Donald A. DeVito 5
By Ms. Young 21271 By Mr. Cumming 21276 6
By Mr. Lanpher 21284 7
I EXHIBITS 8
9 EXHIBITS:
IDENTIFIED RECEIVED DESCRIPTION 10 LOCA Discovery:
11 No. 13 21205 June 11, 1980 Status Report 12 No. 14 21211 21211 Pages K02056, K02057, 13 K02076 14 No. 15 21212 May 1, 1981 letter to Regan from Horton
[)
15 No. 16 21221 July 5, 1988, "State oof l
16 New York's Response to LOCA's Third Set of 17 Interrogatories and Request for Production of 18 Documents" 19 No. 17 21225 June 28, 1988, "Government's Response to 20 Board Order of June 24, 1988" 21 No. 18 21231 Notice of Deposition and 22 Deposition dated April 29, 1988 23 No. 19 21242 Guide to Local Government 24 Disaster Planning 25 Heritage Reporting Corporation (202) 628-4888
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4 21177A 1
EXHIB ITS
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3 IDENTIFIED RECEIVED DESCRIPTION EXHIBITS:
LOCA 4
Discovery:
5 No. 20 21243 Guide for Preparing a County Comprehensive 6
Emergency Management Plan in New York State 7
No. 21 21243 Basic Plan Component of a 8
County Comprehensive Emergency Management Plan 9
No. 22 21250 Annex B 10 No. 23 21252 Guide for Development of 11 State and Local Emergency Operations and Plans 12 No. 24 21252 Interim Guidance 13 No. 25 21260 Radiological Intelligence 14 Annex K, August 1976
()
15 No. 26 21264 Emergency Communications i
Development Plan, State of I
16 New York, County of Suffolk 17 18 19 20' 21 22 23 l
l 24 25 Heritage Reporting Corporation (202) 628-4888
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Q I'll ask you to turn a little bit forward into the
(~)-
2 section that's entitled "General, Number 2, Basic Plan",
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3 prepared by the state, and turn to page 3 of the document.
4 There is a listing on that page which refers to 5
the types of disasters.
Under the disaster types, under 6
Item 1, it lists "natural disasters include but are not 7
limited to flood, drought, abnormal tide, fire, hurricane, 8
earthquake, tornado, wind storm or other storm, landslide or 9
other catastrophe".
10 Under Item 2, it refers to "manmade disasters 11 included but are not limited to nuclear facility accidents, 12 rail, truck or aircraft accidents, accidents at chemical, 13 fuel or explosive production plans", so forth.
14 There's then a listing under Item 3 for nuclear 15 attack.
16 How, Mr. DeVito, doesn't that appear to you to be 17 a plan which encompasses. comprehensive responses to 18 emergencies and not simply civil defense plans?
19 MR. Lanpher.
Judge, please, can I object to this, 20 the question, and to this line of questioning?
Two bases.
21 Number ons.
Mr. DeVito has said that he has not 22 reviewed this plan and, thus, these questions are asking for 23 the witness to speculate.
24 Number two.
This line of inquiry does not relate
(')
25 to the issues that this Board defined for interrogation in Heritage g
ration
i 21179 1 'this proceeding, even with the leeway that the Board feels
/^)
2 it must give.
He has not tied this to any discovery issue.
(/
3 MR. GLEASON:
Your second point may be valid.
I
\\
4 just cannot evaluate it at the present time, Mr. Lanpher.
5 The first point, this man is in a very, very l
6 responsible position in the state of New York with respect l
7 to emergencies, and he's certain to be asked for his opinion l
8 of that section.
9 MR. LANPHER:
Then, I request that he be advised 10 to read this entire section of the document to get a full 11 understanding because he's being --
12 MR. GLEASON:
One page and he went over natural j
13 disasters, manmade disasters, nuclear attack.
If you'd like I
(~)
k-14 some time to read it, why, please ask for it.
I'll 15 certainly grant it.
16 MR. LANPHER:
Judge, please, with all respect, 17 this state prepared portion is twenty-one pages, I believe.
I 18 MR. GLEASON:
He was just asking him about a 19 certain section.
20 MR. LANPHER:
Well, but there are other portions 21 about statutory authority and Item 3 right below goes to 22 civil defense matters.
So, there's a lot of inter-related 23 things, and if you want to get his opinion and have them 24 have any substance at all, I think you have to review it
()
25 all.
He hasn't done that.
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MR. GLEASON:
Let me -- this may be a good time to N
2 take a review as to where we are, and I don't want to
(~A 3
interrupt this, but I do want to see where we're heading as 4
far as the time is concerned.
5 MR. SISK Judge Gleason, I am, unfortunately, 6
proceeding much more slowly than I had hoped to. I have, I 7
believe, approximately ten more documents, ten or twelve 8
more, to show this witness, and where I'm trying to go with 9
this is to show the states and SEMOs likely had knowledge of 10 the existence of a sub-battalion plan of some sort for many, 11 many years, and I believe it may implicate state knowledge 12 of the Suffolk County Emergency Operations Plan.
13 MR. GLEASON:
If you will just go with me a 14 minute, we'll go off the record.
I think I heard thunder.
15 MR. LANPHER:
Would you consider taking a short 16 break, also?
17 (Discussion off the record.)
18 MR. GLEASON:
It appears to us, if I could have 19 your attention a moment, that Mr. Sisk has ten more 20 documents that are going to take some time, and I wonder 21 whether -- we think maybe we ought to take an hour and go 22 have some dinner and come back, if we can get out there 23 without being thunder struck.
24 MR. LANPHER:
Maybe someone ought to go look and
()
25 see if it's possible.
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MR. GLEASON:
I don't know how we're going to be
(}
2 able to get to the third witness tonight.
3 MR. LANPHER:
What is the Board anticipating the 4
schedule.is for tonight, if I may ask?
5 MR. GLEASON:
Well, we'd come back and we would 6
run certainly until we got through with Mr. DeVito.
As much 7
time as that takes and then we'll have to see where we are 8
with respect to the remaining witne: nes.
It doesn't appear 9
to me like we're going to be able to get to Mr. Jamano 10 tonight.
11 MR. SISK:
Judge Gleason, I doubt that we will be 12 able to get to Mr. Jamano tonight.
I would suggest that 13 perhaps we take a ten or fifteen minute break, catch our O
14 breath, and try to finish. I will try to move as fast as I 15 can, but I do have a number of documents that I think are 16 important to the questioning, and I don't believe it will 17 take as long for Mr. Jamano.
I 18 I have spoken with Mr. Spivey, who will be 19 questioning the three county witnesses tomorrow.
If we 20 start with Mr. Jamano first thing in the morning, we think 21 we can conclude tomorrow upon the schedule of witnesses.
22 MR. IRWIN:
I also have a report from the front i
l 23 which is that it's coming through at a rapid clip and 24 there's large powerful wind and heavy rain outside, and I
()
25 don't think anybody wants to go anywhere right now.
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MR. ZARNLEUTER:
I think Mr. DeVito would (V'T 2
appreciate it if we would continue.
I think he would like 3
to leave for Albany tonight if it's possible.
4 Mr. Jamano, however, informed me that after we all 5
decide that the state's three witnesses would be appearing 6
here today, that he made commitments for tomorrow, and those 7
commitments are in Albany, and I'm not too sure without 8
talking to him of what the nature of the commitments are.
9 I don't think he's available tomorrow.
10 MR. GLEASON:
That is up to the state. That is 11 your problem. Once this thing starts, why, you're obligated 12 to produce witnesses.
13 (Pause) 0)
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14 MR. GLEASON:
Mr. Sisk, can you give a kind of a 15 upward bound as to how long it will take you to conclude Mr.
16 DeVito?
17 MR. SISK:
Judge Gleason, if I'm able to proceed 18 by way of showing him documents without going into detail as 19 to the content of the documents, if there are -- if we' re 20 not interrupted by where the documents come into the record, 21 which has not been our experience so far, I think I have 22 between an hour and an hour and a half. That's my guess.
23 MR. GLEASON:
Let's take a fifteen-minute break 24 and then we'll resume.
l
()
25 (Whereupon, a recess was taken.)
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MR. ZAHNLEUTER:
Judge Gleason, Mr. Jamano is
(~N; 2
outside waiting, and he has told me that his commitments
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3 tomorrow are important.
He's teaching and there's a large 4
group of people, sixty people, that are attending his 5
lecture.
6 What I'd like to propose is that Mr. Jamano return 7
on Thursday morning and provide his testimony at that time.
8 Thursday is a lighter day with Dr. Axelrod and Mr. Kelly 9
being the only witnesses scheduled.
I think that would be a 10 convenient reasonable solution to this problem.
11 MR. SISK:
Judge Gleason, so long as the 12 sequestration order remains in effect throughout the time we 13 have.
14 MR. GLEASON:
If you would advise him again of the 15 terms of that sequestration order, that he's not to be 16 talking to any witnesses.
17 MR. ZAHNLEUTER:
About the subject matter of this 18 inquiry,
19 MR. GLEASON:
Well, about anything that's 20 transpired during this session.
21 MR. ZAHNLEUTER:
If I may take a minute and I'll 22 tell him and he'll be on his way.
23 MR. G*TASON:
All right.
24 MR. ZAHNLEUTER:
T'11 he very quick,
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25 (Pause)
Heritage g
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21184 1
MR. GLEASON:
All right, Mr. Sisk.
r3 2
BY MR. SISK:
)
3 Q
Mr. DeVito, I believe the last question was can 4
you tell from reviewing the Suffolk County Emergency 5
Operations Plan and the particular sections that I've shown 6
you earlier whether this is what appears to be in your 7
professional judgment a strictly nuclear attack plan.
8 A
No, it does not.
Upon reviewing some of these 9
pages, counsel, it appears to me that what we have here is 10 an excerpt of what was probably an earlier version of the 11 state's disaster preparedness plan.
12 That suspicion hit me as you were talking and I 13 was reviewing the first couple of pages.
So, I compared it
\\s) 14 even with some of the language in the documents you gave me 15 that is the current version, and I noticed some similarities 16 in language.
17 So, what I would assume has occurred is that in 18 part of its own local effort to develop an emergency 19 operations plan, that what Suffolk County did was it took a 20 portion of that document, the older version of the state's 21 disaster preparedness plan, where it thought that it suited 22 its purpose for its document, and I can't get into the mind 23 of the Suffolk County planners, decision-makers, and 24 apparently they substituted that as a portion here.
()
25 Your Honor, if I may, it became -- at least it Heritage Reporting Corporation (202) 628-4888
21185 1
seemed to me and forgive me if I ramble a little bit, that
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2 there is some confusion that exists with respect to what in 3
the hell all these problems are with respect to civil 4
defense and other types of emergency planning.
5 And if I may, I would like to clarify that, at 6
least attempt to clarify that, and I have some difficulty 7
understanding it sometimes myself.
8 The first goes to an issue that you raised a 9
moment ago, Mr. Sisk, about the state having this document 10 or should have been aware that it had this document, the 11 alleged Suffolk County plan.
The state did not have it. The 12 State Emergency Management Office did not have that document 13 prior to May 6th and there's no reason for it to have had O
14 t!aut deca.ae.;L pior t; 1:ay Cth.
15 Let me clarify.
The system that was developed 16 years ago with respect to this entire area of concern was 17 exclusively civil defense-oriented.
Now, I can't speak to 18 what the historic experience was with the development of 19 plans and the numbers that may have existed out there and 20 whether they were or were not filed with the State of New 21 York.
I'm not aware of any requirement to do that, and to 22 my knowledge, there is no such file of plans for local 23 governments at the state.
24 But going back to the time that I came on board
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25 and this whole planning effort was singularly focused, there Heritage Reporting Corporation (202) 628-4888
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was no attempt within the Office of Disaster Preparedness,
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2' other than in meeting its responsibilities to the 3
Commission, to provide staff services at the -- under the 4
direction of the Secretariat.
5 There was no attempt to do widespread planning.
6 There was an understanding of the need to do planning a.nd, 7
in fact, Article 2 (b) of the Executive Law says that, but it 8
does not mandate that plannir.g, and the state has never 9
provided funds to do that planning.
10 So, it was left to each jurisdiction to do its own 11 plans in satisfaction of Article 2 (b) of the Executive Law, 12 Now, whether they did or did not do those, the 13 state office, not having responsibility in that area, did O
id net rtterpt to err? rent %' c=*=3 eg and to ensure that there 15 was on hand copies of any local government plans that may 16 have existed.
17 The focus, as I said, at the state level was 18 strictly on this technical nuclear attack preparedness 19 issue, the crisis relocation planning effort.
20 When I got involved in the process, there was a 21 change in attitude on the part of the Federal Emergency 22 Management Agency with respect to policy interpretation, and 23 sections, I guess, of the federal law in which Congress said 24 that you can use these monies, these monies meaning the
()
25 civil defense funds, for the purposes of doing other things Heritage Reporting Corporation (202) 628-4888
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that might enhance public safety, provided those other
(}
2 things did not detract from, and there's more language than 3
that, but that's the essence of it, detract from the civil 4
defense effort, it was okay to do those things, and thus 5
began this process that I talked about, the integrated 6
emergency management system process.
7 That process gave us the opportunity to dovetail 8
the suggestions within Article 2 (b) of the Executive Law 9
that each municipality should have an emergency plan with 10 the funded process, one hundred percent federally funded 11 process, that heretofore had been single-issue oriented, and 12 now it could be mado more general.
13 So, we married these two up, and it was somewhere O
14 in the time frame of ' 84, perhaps '85, but somewhere in that 15 time frame, 1984.
From our perspective then, that is the 16 first time that the State Emergency Management Office, at l
17 least under my tenure, became focused on emergency plans 18 developed at the county level.
l 19 I emphasize county because there are other EMA i
l 20 jurisdictions, outside emergency management assistance 21 programs, whereby municipalities get funding from the 22 Federal Government, that are not counties.
There are, in l
23 fact, I believe, nine cities that are so ennaged.
j 24 Our focus had to be, we thought, on the county
()
25 level first, and to incorporate any city concerns within the Heritage Reporting Corporation (202) 628-4888
21188
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' county construct, and we began a schedule of working with (v')
2 various counties, using the federally-funded population 3
protection planning staff, to work with local government 4
omergency. management assistance-funded staff, to develop 5
what we believe would be credible emergency operations 6
plans, addressing all issues, incluaing the attack issue,
. the nuclear attack issue, which was the centerpiece of why 8
the Federal Government had this program to begin with.
9 So, a schedule was worked out and agreed upon with 10 the Federal Emergency Management Agency. For those counti.es 11 that had been completed and not all counties are 12 participants, so we don't have all county plans at this 13 juncture, for those counties that had been completed, we l't 14 probably have plans in the office. Those would be the 15 completed emergency operations plans pursuant to this new 16 program.
17 For those counties that had not yet been completed 18 or were not EMA participant programs, we wouldn't have a 19 copy of the plan and we wouldn't be requesting a copy of the 20 plan, no interest, until we could get the funds to start the 21 planning effort in that particular locality.
22 This year began the effort in Suffolk County, l
23 among others, and that's the first time we became aware that 24 there was a document called an Emergency Operations Plan, O
t _j 25 previously reveloped, in Suffolk County, and we accepted s
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that docament delivered to us as a base for examining es 2
compliance with the federal guidelines, and that where b
3 deficiencies would exist, then my staff working with the 4
county staff would enhance, upgrade, expand, modify, 5
whatever was necessary, those deficiencies to bring it into 6
compliance with our interpretation of the FEMA guidance as 7
contained in the appropriate civil preparedness guides.
8 I say ours because there is no c6rtification 9
procecs.
I do not go forward to FEMA and say, this plan is 10 e.cceptable to the state of New York in satisfaction of this 11 requirement.
What I simply do is accept the plan in 12 satisfaction of the requirement and make its presence aware 13 to FEMA.
They may choose or not to to c>me in and examine A)
(m 14 that plan to determine what their impression or 15 interpretation of is as regards compliance with the 16 appropriate civil preparedness guide.
17 To my knowledge, there is no federal certification 18 of those plans as having met the guidance, at least I have 19 never received any formal document from FEMA saying County 20 X's plan is hereby determined to have satisfied the federal 21 guidance.
It just doesn't happen that way, not that 22 formalized program, and I remind you, it's a federal 23 program.
24 Our concern is that the municipality, which is,
/^%
25 after all, the front line in any disaster omergency V
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situation, is dealing with the issue as they deem
' (') ;
2 appropriate to der.1 with the issue, s-3 Our concarn is that the federal guidelines have 4
been satisfied.
5 I hope that clears up whether or not we had or 6
should have had a Suffolk County plan.
We did not have and-7 there was no reason for us to have it prior to the initial 8
staff contact with Suffolk County on this year's population 9
protection planning effort.
10 Q
Mr. DeVito, didn't you state earlier that Suffolk 11 County had been receiving federal funds from FEMA as long as 12 you've been with either the Office of Disaster Preparedness 13 or --
0 14 A
Emergency Management Assistance funds, yes.
15 Q
Since at least 1982?
16 7.
Since at least my tenure, yes.
17 Q
And do those fur.ds flow directly from the Federal 18 Government to the locality?
19 A
They go through the state office as an 20 administrative agent, but the funds are earmarked for local 21 government.
22 In fact, there is a distribution formula, if you 23 will, that says that the state is entitled only to a maximum 24 of one-third with two-thirds of the funds being disbursed to
()
25 participating emergency management assistance communities.
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Q Ckay. And that allocation that you're talking 2
about is an allocation that the Federal Government j%./
3 determines?
4 A
For each municipality 1 5
Q Yes.
6 A
The allocation to the state is a Federal 7
Government determination and inherent within that allocation 8
to the state is the two-thirds share for local governments.
9 Q
Okay.
So, then, the state determines how much of 10 the two-thirds share will go to the local governments, is 11 that right?
12 MR. LANPHER:
I object to the question.
13 Judge Gleason, we've gone a long time on this, and
()
14 now we're back into the funding. I don't think this relates 15 whatsoever to the issue identified by the Board to be 16 exaruined, namely whether there was compliance with discovery 17 requirements.
18 The hour is getting late and I think LOCA has had 19 long enough on this.
So, I object.
20 MR. GLEASON:
Where are you heading, Mr. Sisk?
21 MR. SiSK:
Judge, I'm heading where I said I was 22 before the break.
23 MR. LANPHER:
Well, is there any reason to 24 disbelieve what Mr. DeVito just attempted to explain very
(}
25 forthrightly, that the state didn't have this document Heritage Reporting Corporation (202) 628-4888
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before they got it in May and they produced it?
("/
T 2
MR. GLEASON:
Well, let him continue.
N 3
BY MR. SISZr 4
Q Mr. DeVito, does the state or does FEMA determine 5
the allocation of funds to particular local governments?
6 MR. LANPHER:
I object.
That's the exact same 7
thing, Judge, and I thought we weru going off at least on 8
some different tangent.
This funding is just not relevant.
9 MR. GLEASON:
Well, let him answer and let's see 10 if it is or not.
11 THE WITNESS:
To understand that, you have to go 12 back a number of years before we got into this cooperative 13 agreement situation.
14 BY MR. SISK:
15 Q
I'd rather not do that, if you can answer my 16 question directly.
I'd rather just know whether the state 17 emergency management office determines which local 18 governments will get how much money out of those federal 19 funds.
l 20 A
It's not quite as simple as that, Mr. Sisk.
21 Q
Does it change over time?
22 A
Because there is an historic precedent that 23 establishes a base, and that base may have absolutely 24 nothing to do with objective factors, such as population or
()
25 level of risk or things of that nature.
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Q All right.
Well, let's start in 1984 then.
As of 2
that time, was FEMA the agency that decided how much money
,\\L.)
3 would go to any particular local?
4 MR. LANPHER:
I object. Judge.
He's not connected 5
6 MR. SISK:
This is the date of the state's initial ocument production.
7 t
8 MR. GLEASON:
Well, I'm going to deny the 9
objection.
Let him continue because I don't know where it's 10 heading, Mr. Lanpher. Let's just see, please.
11 Go ahead. Answer if you can.
12 THE WITNESS:
The point of whether or not the 13 state determines is an academic exercise because there is, (3
s,/
14 as I was trying to say, the historic precedent back to a i
15 tima when there was more money available for civil defense 16 that, when funding was made available to localities, those 17 who chose to participate and provided their share of the I
18 funding up to a maximum of fifty percent, is what the 19 Federal Government imagined, they received virtually l
20 whatever they asked for, and there was no real connection to l
21 my mind, and again this predates my tenure, between 22 population base, level of risk, vulnerability, perhaps not 23 even to the quality of effort, but again that's a value 24 judgment, and I'm looking back historically.
25 So, a certain base line was established for those
[}
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communities that chose to participate in the EMA program, f-s 2
Emergency Management Assistan m program.
U 3
As funding became less, as there was reductions on 4
the federal side, as more participants got involved in the 5
EMA program, then a particular municipality's share would be 6
lessened, and what we attempted to do in that situation was 7
to share the pa n since we try to be as equitable as we can 8
in reduction.
9 BY MR. SISK:
10 0
Mr. DeVito, if I may, I don't really care about 11 the mechanics, what I care about is who the decision-maker 12 is.
13 the state determine whether the local s
(_)
14 governments get the federal money for local disaster 15 planning?
16 A
only in the sense of our judgment as to whether or 17 not the state -- the locality is making a best faith effort 18 to accomplish the work plans withirs the guidelines 19 established bf FEMA in the cooperative agreement.
20 Q
And the work plan involves planning for 21 emergencies in some sense, is that correct?
22 A
Might involve an emergency operations planning 23 effort under the population section planning program, 24 depending upon the year in question.
25 Q
Are they able to pass funds through to a local if
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it's not engaging in any emergency planning?
. fN '
2 MR. LANPHER:
I object to the question.
J 3
Mr. Sisk ought to call FEMA as a witness if he 4
wants to pursue this.
5 Judge, you defined the issue, You said the basic 6-issue is whether state and county emergency plans may have 7
been withheld during the proceeding, and if such plans were 8
withheld, what were the circumstances surrounding the 9
withholding.
That's at 2924.
Those were your words, Judge 10 Gleason.
11 I think we have to live within the words.
12 MR. GLEASON:
I had those words in mind and 13 recited them three different times.
The objection is (n
's )
14 denied.
I don't know where he's going, but I'm trying to 15 give him an opportunity to get there and get somewhere 16 that's meaningful.
17 Please proceed.
18 BY MR. SISK:
19 Q
Mr. DeVito, does the Federal Government permit the 20 state to pass on through to a local government that is not 21 engaging in emergency planning in accordance with FEMA 22 guidelines?
23 A
If a jurisdiction that is a recipient of EMA 24 funding chooses not to do an emergency operations plan and
()
25 they are not all scheduled in any given year, it is a Heritage Reporting Corporation (202) 628-4888
21196 1
pie'emeal operation dependent upon the number of reqources 2
and funds available, if they choose not to do it, then I 3
don't know what FEMA would do since we have no historical 4
precedent in that regard.
5 As far as EMA assistance funding is concerned, any 6
recipient of EMA funding must eventually do a population or 7
an emergency operations plan under population protection 8
planning effort.
9 Q
Mr. DeVito, was anyone within the Office of 10 Disaster Preparedness -- do I have the title correct?
11 A
The predecessor organization?
12 Q
Yes.
13 A
SEMO?
Yes, you do.
14 Q
Was anyone within the ODP or SEMO aware of the 15 existence of any Suffolk County disaster plan prior to May 16 of 19887 17 A
Apparently not, at least not in terms of the 18 executive office nor in terms of the planning section 19 because there was no expectation that Suffolk County would i
20 deliver that document on May 6th of 1988.
So, there was no 21 awareness that it existed.
It was provided to staff.
22 That's our first indication of that.
I i
23 I asked if anybody had been aware of that document 24 at the time that it was delivered to me, and that was when I
()
25 got the answer that the first time we became aware of it was Heritage Reporting Corporation (202) 628-4888
21197 1
May 6th.
2 Q
So, is your answer that, to your knowledge, no one
'b v
3 that you have discussed the matter with at SEMO was even 4
aware of the existence of any type of Suffolk County 5
emergency plan until May of 19887 6
A That is correct, to my knowledge.
7 Q
Now, why did Mr. Horton -- strike that.
8 Did Mr. Horton travel to Suffolk County on May 9
6th, 1988, simply not knowing whether there was any Suffolk 10 County disaster plan or emergency plan of any kind?
11 A
It would be irrelevant as to whether there was or 12 wasn't.
He would travel there anyway to initiate the 13 process of an emergency operations plan development. That's l) 14 part of the process, to meet with county officials, to make 15 known to them the requirement and then to establish with 16 them a working relationship to the development of the 17 product.
18 In this case, when Mr. Horton went there, he was 19 provided by someone a copy of this alleged Suffolk County 20
-ECP.
21 Q
Mr. DeVito, do you have any idea how Suffolk 22 County obtained the portions of the plan which we have just 23 loo?:ed at, the introduction prepared by the state and the basic plan prepared by the state, do you have any idea how 24 l
{}
Suffolk County would have obtained this material?
25 Heritage Re$artinE Corporation (20 ) 628 4888 l
1
21198 1
A I have no idea how or where they got it at all.
2 Q
Do you know whether the Office of Disaster 3
Preparedness was at that time, that is in 1979 or 1980, 4
providing any kind of assistance or guid.nce to local 5
governments for preparation of disaster plans?
6 A
Not to my knowledge, no.
7 Q
And is that because you simply don't know?
8 A
And I wouldn't think so because, again, remember 9
what I had said earlier, that was the period of time when 10 the focus was on crisis relocation planning and Suffolk 11 County was not one of the counties that was involved in that 12 process at that time.
13 Q
Do you know when Suffolk County first became 14 involved in crisis relocation planning or did they ever 15 become involved?
16 A
No.
This is the first planning effort pursuant to 17 federal programs that we have undertaken with Suffolk 18
- County, 19 MR. GLEASON:
How about with the other counties?
l 20 THE WITNESS:
I'm sorry, sir?
21 MR. GLEASON:
I say how about with other counties 22 in the state?
L l
23 THE WITNESS:
Did we work with them on other 24 plans?
l I
()
25 MR. GLEASON:
Heritage Reporting Corporation (202) 628-4888
-1 21199 1
THE WITNESS:
Yes, sir, as part of this same em 2
planning effort, b
3 MR. GLEASON:
When did that start?
4 THE WITNESS:
Well, I don't know what the real 5
genesis of the crisis relocation planning effort was.
It 6
was in existence when I came on board, but it was --
7 obviously had not progressed very far since part of that a
8 process had only delivered at best one prototype plan and 9
three drafts in three metropolitan areas.
10 So, in any event, it was terminated and we began 11 the process in other counties, and with the exception of 12 non-EMA jurisdictions, we should be completed this year with 13 EMA participants, and then we'll be working with FEMA as to
(~,
(m) 14 where the planning program goes beyond that.
15 BY MR. SISK:
16 Q
Mr. DeVito, the Suffolk County plan, as you 17 testified, is literally now being reviewed and revised and i
18 rewritten by Suffolk County and your personnel within SEMO, 19 is that correct?
l 20 A
It's being reviewed now and in the not too distant l
t 21 future, I would hope within the next couple of weeks or so, 22 my staff will again visit Suffolk County to meet with 23 officials there to discuss their view as to where the plan 24 meets the federal guidelines, where it does not meet the 1
25 federal guidelines, and the recommended course of action te
/{ }
i Heritage Rep rting Corporation (202) 628-4888
21200 1
bring it in to full compliance with the federal guidelines.
(
2 Q
And did you say earlier that crisis relocation 3
planning had not advanced very far when it came to the 4
Office of Disaster Preparedness in 1982?
5 A
That's correct.
6 Q
Did you also say that it's no longer a viable 7
concept as of today?
8 A
That is correct.
9 Q
So, it was sort of a transitory phenomenon in 10 time, is that correct?
11 A
There seems to have been a great deal of that in 12 this business.
13 Q
But that did involve evacuation planning?
O 14 A
That was part of the. locus of that particular 15 effort.
Movement of people at risk to areas of lesser risk.
16 Q
Now, you stated that the State Emergency 17 Management Office -- I'm sorry.
You stated that Article 18 2 (b) of the Executive Law did not mandate local planning, is 19 that correct?
20 A
That's my personal view. It does not mandate it.
21 Q
It does, however, mandate state planning, does it 22 not?
23 A
It --
24 MR. LANPHER:
I object.
It calls for a legal
()
25 conclusion.
Iferitage Reporting Corporation (202) 628-4888
^
21201 1
MR. GLEASON:
Well, this is a very high-ranking g) state official who ought to be qualified and ought to have 2
(s/
3 knowledge to answer that question. Objection denied.
4 Answer the question, please.
5 BY MR. SISK:
6 Q
Does Article 2 (b) to your understanding as 7
Director of SEMO mandate that state planning?
8 MR. LANPHER:
I object. That's t i
planning for 9
whao purpose, sir?
10 MR. SISK:
The witness can qualify it anyway he 11 wishes.
12 MR. LANPHER:
Well, I object to the question --
13 MR. GLEASON:
Do you understand the question?
Do e.
14 you understand the question?
15 THE WITNESS:
I'm having some, admittedly, some 16 difficulty with it because of the word "mandate".
17 BY MR. SISK:
18 Q
Does Ar* icle 2 (b) require the preparation of the 19 disaster preparedness p'.an that we discussed earlier?
20 A
Yes.
21 Q
And does that disaster preparedness plan, under 22 Article 2 (b), have to have certain characteristics and 23 components, doesn't it?
24 A
It's been awhile since I reviewed Article 2 (b),
25 but I believe there are some general guidelines as to what
(}
Heritage Reporting Corporation (202) 628-4888
21202 1
ought to be in the emergency plan.
2 Q
And that would include the types of disasters that 3
are supposed to'be covered and so forth?
'4 A
I believe there is a statement in there of the 5
general nature that alludes to the kinds of things that 6
might confront government officials.
7 Q
Now, if a local government elects to prepare a 8
disaster preparedness plan, you said it was not mandated, 9
but if a local government elects to do that under Article 10 2 (b), does the stata emergency management office assist with 11 that kind of plan development?
12 A
Not unless it were done in concert with the 13 existing population protection planning effort.
()
14 Q
So, 15 A
We don't have the resources to do that.
16 Q
Okay. So, plan preparation at the local level then 17 could be an integrated planning to design to meet both t
18 Article 2 (b) and civil defense and types of things that ycu 19 talked about under the federally-funded programs, is that 20 correct?
21 A
I believe I already stated that.
22 Q
Okay.
And --
23 A
That would be the intent. Whether it was achieved 24 or not is another point.
25 Q
Okay.
Does the state emergency management office Heritage Reporting Corporation (202) 628-4888
21203 1
review local plans that are prepared for compliance with C-2 Article 2 (b) ?
O 3
MR. LANPHER:
I object to the question.
This is 4
not relevant, Judge Gleason, to the inquiry.
5 MR. GLEASON:
It is relevant in my opinion.
So, 6
the objection is denied.
7 MR. LANPHER:
Would you please --
8 MR. GLEASON:
Respond to the question, please.
9 MR. LANPHER:
Judge Gleason, very respectfully, 10 I'd like to *. lave the rationale of why your previous order 11 doesn't control.
12 MR. GLEASON:
I've already gone through that once 13 and perhaps twice with you.
The difficulty, Mr. Lanpher, is O
14 you' re just not accepting my reasoning.
15 Now, --
16 MR. LANPHER:
Judge Gleason, I'm accepting your 17 words, that we relied upon.
18 MR. GLEASON:
-- you're not accepting the 19 reasoning that I cited to you at several different occasions l
l 20 today, and all you're doing is wasting all of our time right 21 now.
l 22 The objection is denied.
Please respond to the l
23 question.
24 THE WITNESS:
Could you restate the question,
()
25 please?
Her.itage Reporting Corporation i
(202) 628-4888 I
21204 1
BY MR. SISK:
2 Q
Does the state emergency management office review
,_U 3
the local disaster preparedness plans that are prepared for 4
compliance with ArticAe 2 (b) of the Executive Law?
5 A
Formally?
6 0
In any sense.
7 A
Formally, we don't.
We rely on the compliance 8
with the civil preparedness guide of the Federal Government.
9 That is, after all, the funded effort.
But, certainly, we 10 are not unfamiliar, at least my staff is not unfamiliar with 11 what would be outlined in Article 2 (b) of the Executive Law, 12 and I would assume that since good planning concepts are 13 good planning concepts, regardless of the legislation or
()
14 regulation covering them, that they would be part of their 15 deliberations in analyzing any such document.
16 Q
Does the state emergency management office then 17 evaluate these plans against FEMA criteria in any informal 18 sense?
19 A
In a more formal sense with respect to the 20 population protection planning effort than the Executive 21 Law, Article 2 (b) effort, because that is the basis for the 22 funding.
23 We would review it as I have stated several times 24 to determine that our view, collective view is as regards 25 compliance with the operative federal guidance.
Heritage Reporting Corporation (202) 628-4888
21205 1
Q Mr. DeVito, I'm now going to hand you a document
(}
2 that is entitled "Rosources Manual".
3 MR. SISK:
I will vouch for the record that that 4
is also a document recently produced to us by Suffolk 5
County.
6 In Mr. Lanpher's cover letter producing it 7
recently, I.believe Mr. Lanpher stated that this is not 8
technically a part of the Suffolk County Emergency 9
operations Plan, but is referred to in that plan and, 10 therefore, was being produced in the production late last 11 week.
12 If Mr. Lanpher needs to correct that, that's fine.
13 I would ask that this document be marked for p
14 identification rs LOCA Discovery Exhibit 13.
15 MR. GLEASON:
It's so marked.
16 (The document referred to was 17 marked for identification as 18 LOCA Discovery Exhibit 13.)
19 BY MR. SISK:
i 20 Q
Mr. DeVito, the document that's now identified as 21 LOCA Exhibit 13 begins with a county inter-office memorandum l
l 22 to Director William E. Regan from Major Bruce Jewel.
It's 23 dated June 11, 1980, and it is -- it says "Status Report".
i l
24 There are a number of documents contained within l
()
25 this manual. If you'd like to look quickly at it, I think I Heritage Reporting Corporation (202) 628-4888 L
21206 1
know the answer to this question.
()
2 Have you seen this document before?
3 A
I think you've answered your own question.
The 4
answer is no.
5 Q
Now, I'll ask you to turn. There are numbers in 6
the upper right-hand corner, which I will represent are 7
nunibers that have been affixed by the Hunt and Williams law 8
firm.
9 If you will turn to the page A02056. That's in 10 roughly the middle of that manual.
Do you recognize that 11 document which begins "State of New York Division of 12 Military and Naval Affairs, State Emergency Management 13 Office, Emergency Operations Telephone Directory"?
b 14 A
Yes, sir, I do.
15 Q
What is that document?
16 A
It's, as the name implies, it's the telephone 17 directory.
It provides the names, phone numbers, locations 18 of emergency management personnel around the state.
19 Q
If you will turn to the second page of that 20 document, page number A02057, in the lower left-hand corner, 21 that appears to bear a date, 2/1/87.
22 Do you see that date?
(
22 A
Yes, sir, I do.
24 Q
Do you recognize this document bearing that date?
()
25 A
I can't attest to any specific version of this.
Heritage Reporting Corporation (202) 628-4888
21207 1
This is an on-going directory that is updated.from time to 2
time, and I'm sure there are later versions than this one.
!3
('/
3 0
'Is this a document that is maintained by your 4
agency in the ordinary course of its business?
5 A
Yes, it is.
6 0
Will you turn to about the middle of that 7
directory, in the upper right-hand corner, there's a page 8
A02076?
The page number on the document itself is document 9
-- is page D-1.
10 It also bears the date 2/1/87 in the lower left-11 hand corner.
12
.That purports to describe state headquarters 13 staff, state emergency management office.
Do you recognize
()
14 that particular listing?
15 A
Yes, sir.
It's sceewhat familiar. Again, I can't 16 attest to the specific data on a specific date.
17 Q
Does it identify you and Mr. Jamano under the l
18 heading "Executives"?
19 A
Yes, sir, it does.
20 Q
Are those your office numbers, telephone numbere?
21 A
That is correct.
22 Q
And over on the right-hand side, immediately 23 opposite that, there's a title "Planning" and that lists, 24 among others, Mr. Hirshkowitz and Mr. Horton.
25 Are those two gentlemen properly identified in Heritage Reporting Corporation (202) 628-4888
21208 1.
that document as members of your planning section?
2 A
Yes, they are.
O 3
Q And is Jerry D.
Horton the gentleman who obtained 4
a copy of the Suffolk County Emergency Operations Plans from 5
the county?
6 A
That is my understanding, yes.
7 Q
Do you know how this document came into the 8
possession of Suffolk County?
9 A
I have no idea. We do distribute these directories 10 as a matter of course, and, so, I would assume that that's 11 the way we received it.
q 12 MR. SISK:
Judge Gleason, tomorrow, we intend to
~
13 proffer this entire document as to be admitted into the
()
14 record.
15 For ease, it may be better to do the entire 16 document the same time, but I would like at this time to 17 move at least for admission of the telephone directory and 18 at least the specific pages that this witness has just 19 icantified.
20 I believe he has personally authenticated --
21 MR. GLEASON:
Want to give me those pages again?
22 MR. LANPHER:
I don' t understand what you' re 23 moving.
24 MR. GLEASON:
Is that what you' re moving?
Just 25 the pages *:nat he has identified?
Heritage ReMrting Corporatier.
(202) 628-4888
21209 1
MR.
SIS..'
Judge Gleason, if -- I would like to
(}
2 move admission of the pages K0:.056 to establish what the 3
document is, K02057 to establish the first page --
4 MR. GLEASON:
Let's go a little slower. Ua.at's the 5
first one?
6 MR. SISK:
I'm sorry.
It's the cover page.
7 K02056.
Page A-1 simply establishes the first page of the 8
document.
K02057. And the organizational list of K02076, 9
which is page D-1, the witness just identified.
10 MR. GLEASON:
All right.
Is there objection?
The 11 first page is three pages, I believe.
12 MR. SISK:
Four.
13 MR. GLEASON:
And the cover.
O 14 MR. SISK:
Three and the cover, Judge Gleason.
15 MR. GLEASON:
All right.
16 MR. SISK:
The cover page, A-1 and D-1.
17 MR. GLEASON:
So, it's K02056, K02057, K02076.
18 MR. SISK:
Correct.
19 MR. GLEASON:
Is there objection?
20 MR. LANPHER:
Suffolk County objects, Judge 21 Gleason. There is no stated pur7ose for the proffer. This 22 document was produced in discovery.
The fact that it was i
23 produced, I don't understand why it needs to come into 24 evidence.
()
25 This is a document that was produced in discovery.
l Heritage Re m rting Corporation (202) 628-4888
]
21210 1
MR. SISK:
Judge Gleason, it was produced last 2
- Saturday,
,sh 3
MR. GLEASON:
All right.
I'll abstain the 4
objection for having it admitted into evidence.
5 MR. LANPHER:
Well, you understand, we do object.
6 You're overruling our objection?
7 MR. GLEASON:
Yes, I do understand your objection.
8 MR. ZAHNLEUTER:
I also object on the basis that 9
it proves nothing in relation to what the issue is in this 10 proceeding.
11 MR. GLEASON:
There are many things in the record 12 that don't prove anything, Mr. Zahnleuter.
13 BY MR. SISK:
[
f) 14 Q
Mr. DeVito, how long has Jerry Horton been in the i
15 planning section of the state emergency management office?
16 MR. LANPHER:
I object. That's not pertinent.
17 MR. GLEASON:
One minute before we proceed.
18 Those referenced pages are to -- are just pages 19 out of Local Discovery Exhibit Number 13.
l 20 MR. SISK:
Perhaps we should designate the pages l
21 as Discovery Exhibit 14, and I'll move the --
l 22 MR. GLEASON:
All right.
I think that would be l
23 better.
24 MR. SISK:
Fine.
Move the admission on that 25 basis.
Heritage Reporting Corporation l
(202) 628-4888
~
l 21211 1
MR. GLEASON:
All right.
Those pages will be
(}
2 referred to as Discovery Exhibit, LOCA Discovery Exhibit 3
Number 14 and admitted on that basis.
4 (The document referred to was 5
marked for identification as 6
LOCA Discovery Exhibit 14, and 7
was received in evidence.)
8 MR. GLEASON:
All right.
Now, proceed, please.
9 BY MR. SISK:
10 Q
Mr. DeVito, how long has Mr. Horton been a member 11 of the planning section of the state emergency management 12 office or its prodecessor, the Office of Disaster 13 Preparedness?
O 14 MR. LANPHER:
Objection.
I s*ated an objection, 15 too, and then you had an inquiry, Judge.
16 MR. GLEASON:
What's the objectior. to that 17 question?
18 MR. LANPHER:
The objection to that question is 19 that it's unrelated to the stated purpose of this 20 proceeding.
21 MR. GLEASON:
Well, it may or may not be.
T 4.s l
22 objection is denied.
l 23 Please answer the question.
Mr. Horton has 24 already been identified as a fairly key person in the
()
25 transmission of documents here.
HeritageRe$ortingCorporation (20 ) 628-4888
21212 1
THE WITNESS:
Mr. Horton was on the ODP staff when S
2 I joined it.
)
3 MR. SISK:
Okay.
Mr. DeVito, I will now ask that 4
the following document be marked for identification as LOCA 5
Discovery Exhibit 16 -- 15.
It's Number 15.
It is a 6
letter, dated 1 May 1981, on the letterhead of the State of 7
New York, Division of Military and Naval Affairs.
It is to 8
Mr. William E.
Regan, Director of Suffolk County Department 9
It is signed by Jerry Horton, 10 Director of Programming and Planning or appears to be signed 11 by Jerry Horton.
12 MR. GLEASON:
The document will be designated as 13 LOCA Discovery Exhibit Number 15.
O
(/
14 (The document referred to was 15 marked for identification as 16 LOCA Discovery Exhibit 15.)
17 MR. SISK:
I will vouch for the record that this 18 is one of the documents that was produced by Suffolk County, 19 I believe, in 1982, but in an earlier discovery in this 20 proceeding.
21 BY MR. SISK:
22 Q
Mr. DeVito, have you ever seen that letter before?
23 A
No, sir, I have not.
24 Q
Can you scan it momentarily?
(}
25 A
I'm reading it.
Heritage Rep rting Corporation (202) 628-4888
k 21213 1
(Pause) f3) 2 BY MR. SISK:
t
(
s 3
Q Having reviewed the document, Mr. DeVito, can you 4
determine from having read it, I unders*and now for the l~
5 first' time, what its' significance is?
l' 6
A On the face of it, what it appears had occurred 7
was that this document called "Disaster Preparedness Plan",
l 8
date indicated, was reviewed by Mr. Horton and he found some 9
areas of non-consistency with some programs and overall 10 complimented the plan.
11 Q
Mr. DeVito, the letter begins with the section 12 "The Suffolk County Disaster Preparedness Plan, dated 1 13 January 1981, has been reviewed by the ODP Programming and O
14 Planning Section.", is that correct?
15 A
That's what it says.
16 Q
And there are numerous references in this letter 17 to Article 2 (b) of the New York Executive Law, is that 18 correct?
19 A
That's correct.
20 Q
Does the letter also at the end suggest that the 21 county development submit diligent town disaster procedures 22 in accordance with Article 2 (b) to support the county plan?
23 A
It states that.
24 Q
And prior to that, you had no knowledge of this
()
25 particular document?
Heritage Rep rting Corporation (202) 628-4888
t
'j a
21214 1
A No. I've never seen it before.
2 Q
Is it -- excuse me a moment.
{}
3 (Pause) 4 BY MR. SISK:
5 Q
Mr. DeVito, the first paragraph of that letter 6
also states "The plan is compatible with the provisions of 7
Article 2 (b), Section 23, Local Disaster Preparedness 8
Plans", is that correct?
9 A
That's what it states.
10 Q
And paragraph 5, it states "If this plan will-11 include civil defense functions,.there will be a great deal 12 of additional information needed", and it refers to certain 13 things, including crisis relocation, which you alluded to A
14 earlier, is that correct?
15 A
That is correct.
16 Q
Now, can you explain for me why the Office of 17 Disaster Preparedness conducted this review of the Suffolk 18 County Disaster Preparedness Plan, if you know, based on the 19 functions you've assumed as the head of CDP and SEMO?.
20 MR. LANPHER:
I object.
21 MR. ZAHNLEUTER:
I object.
l 22 Judge Gleason, I must make --
l 23 MR. GLEASON:
Who went first?
24 MR. ZAHNLEUTER:
I prefer to go first because Mr.
()
25 DeVito is the state witness.
l l
Heritage Reporting Corporation (202) 628-4888 i
21215 1
I must object to this because it comes down to a (3
2 matter of due process, and had we known this issue in this s_/
3 proceeding would have involved things that occurred in the 4
early 1980s, we might have been better able to prepare for 5
substantive questions about substantive reviews and 6
substantive plans.
7 But we weren't apprised of that as an issue in 8
this proceeding.
We were apprised of a different issue, 9
which I stated and Mr. Lanpher stated many times, and that 10 was the production or non production of emergency plans.
11 This doesn't show anything abouc that issue, and, 12 indeed, there's no showing going back to what I said in my 13 opening statement that there's a discovery request that A
14 pertains to this document.
15 So, I object because this line of questioning is 16 beyond the scope of this proceeding, and it's important to 17 the state of New York because it's a matter of due process.
18 MR. LANPHER:
Judge Gleason, I am going to join in 19 that objection, but, further, with respect to this letter 20 and the questions Mr. Sisk is pursuing, this witness has l
l 21 said he has no knowledge about this letter.
l 22 So, the question calls for speculation.
l 23 MR. GLEASON:
I think that's a more germane l
24 objection, and on that basis, I have to grant it, unless you
()
25 want to restate the question srwe.how.
l Heritage Reporting Corporation (202) 628-4888 l
4
.21216 1
MR. SISK:
Judge Gleason, I will vithdraw the 2
proffer until we get Mt. Regan on the stand.
3 BY MR. SISK:
4 Q
Mr. DeVito, let me ask you about one item relating 5
to the content of this letter.
6 Under Item 4,
-- excuse me.
7 (Pause) 8 BY MR. SISK:
9 0
I'm sorry. I misidentified it. Under Item 1, there 10 ss a reference to a statemen' that i.he plan is patterned on
- 1 the local radiological emergency response plans and standard 12 operr, ting procedures for activation of the otate emergency 13 operations center.
14 Do you have any idea what that means?
15 MR. LANPHER:
I object. Same objection, Judge.
16 MR. GLEASON:
H6 may ask that question.
He's an 17 expert.
See if he has any opinion as to what it means.
18 Go ahead.
19 THE W7TNESS:
I know who
% says, but I don t 20 know what Mr. Horton wc1 addresaing in his judgment.
BY MR. SISK:
you know what he's referring to by the state Q
s.
Siiological emergency response plans?
s, I do not.
24 e
(hf 25 cir. DeVito, have you participated in the answers Beritage Reporting Corporation (202) 628-4888 1
21217 1 -to recent discovery in this proceeding and, specifically, 2
have you participated at all in the providing of documents
(-)
3 in response to -- I'm sorry -- in providing substantive 4
answers of any sort to LILCO's second set of 5
interrogatories?
6 MR. SISK:
I will vouch for the record. Those were 7
filed on June 3, 1988.
You may not have participated, but 8
I'd like the record to reflect whether you did or not.
9 MS. YOUNG:
Excuse me, Did you say answers?
10 MR. SISK:
The answers to the second set of 11 interrogatories filed on June 3, 1988.
12 MR. LANPHER:
Is that what haa been marked LOCA 13 Exhibit 8 for identification?
()
14 MR. SISK:
For identification and not yet 15 admitted.
16 THE WITNESS:
I don't know what you're referring 17 to.
Can you be more specific?
18 BY MR. SISK:
19 Q
Were ycu involved in any respect in responding to 20 discovery in this proceeding prior to June 6th, 1980?
21 A
Again, I have no recollection, I think I said this 22 before, of being asked to doli.ver any documents prior to the 23 time I was asked the question about the Suffolk County plan 24 and then, as my memory serves me, and I wi13 admit that's 25 dragging out somewhm.c since my day started about 4:30 this Heritage Reporting Corporation (202) 628-4888
'21218 1
morning, that the request for anything that we had came
(~N 2
after I had made Mr. Zahnleuter aware that we did have in
.% )
3 our possessica and had had since May 6th the Suffolk County 4
Emergency Operations Plan.
5 MR. LANPHER:
Judge Gleason, I think that the 6
witness clearly must be confused.
As ~ recall the question, 7
it was had he been involved in any discovery prior to June 8
6th. I don't have the exact date, but he was deposed by you, 9
Mr. Sisk, in April?
10 MR. SISK:
In responding to the written discovery.
11 MR. LANPHER:
Well, I don't want the record to be 12 confused. He was deposed on a Friday morning. I remember it 13 in Albany.
'14 THE WITNESS:
And I do, too, and I don't remember 15 the date, but, Your Honor, I apologize.
These legal terms 16 have absolutely no relevance in my lexicon.
So, I don't --
17 when he's talking about these various interrogatories, I 18 don't know what dates you're referring to.
19 MR. SISK:
Let me try to clarify by placing a 20 couple of doc..ments before the witness.
21 For the record, the deposition was April 29, 1988, 22 and we all recall it.
23 I'll ask Mr. DeVito if he can identify the 24 documents that have been marked for identification as LOCA
()
25 Exhibit 8, which is the answers to New York State and LOCA's Heritage Reporting Corporation (202) 628-4888
.n 21219 1
second. set of interrogatories, dated June 3, 1988.
2 MR. GLEASON:
Mr. Sisk, I presume at some time, O
3 you or one of your associates will present us with a copy of 4
that exhibit.
5 MR. SISK:
I thought that had been done.
I 6
apologize.
7 MR. GLEASON:
We' re talking about the 8
interrogatories, the second set of interrogatories?
I don't 9
believe so.
10 MR. LANPHER:
It was not passed out.
We happen to 11 have our own version.
12 (Pause) 13 MR. SISK:
What I just handed out is actually two
()
14 documents.
One is dated June 3, 1988.
Mr. Zahnleuter i
15 indicated that verification would follow.
The verification i
16 followed on June 15, 1988, and it was a verification by Mr.
17 Peele. That came in under the cover of a letter from Mr.
18 Zahn1 outer that was attached.
19 So, if we could consider this collectively e.s LOCA l
20 Exhibit 8 for identification, that would be fine.
21 MR. GLEASON:
It is so designated.
22 BY MR. SISK:
23 Q
Nu n, referring to the document that bears the date 24 June 3, 1988, in the upper right-hand corner, have you ever 25 seen that document before?
O' l
Heritage Reporting Corporation (202) 628-4888 l
l
a 21220-1 A
I have no remembrance of having seen this before.
2 MR. GLEASON:
I didn't hear your answer.
3 THE WITNESS:
I don't recall having seen this 4
before, Your Honor.
5 BY MR. SISK:
6 Q
Do you.racall being consulted at all prior to this 7
time in responding to written discovery requests?
Prior to 4
8 this time, I mean prior to June 3, 1988.
9 MR. ZAHNLEUTER:
Mr. Sisk, do you mean you as in 10 Mr. DeVito personally?
11 MR. SISK:
bht. DeVito personally.
12 MR. ZAHNLEUTER:
Gr SEMO?
You said Mr. DeVito 13 personally?
14 MR. SISK:
Yes.
15 BY MR. SISK:
16 Q
Do you recall, Mr. DeVito, personally having been 17 consulted to respond to written discovery prior to June 3, 18 19887 19 A
No, I don't recall that dialogue having taken 20
- place, l
l 21 Q
And what you do recall, though, is the contact 22 being mace with respect to the Suffolk County Emergency
(
23 Operations Plan on June 6th, 19887 l
l 24 A
I remember that date because I made a special note l
()
25 of it beca2se of the existance of that plan in my He;itage Reporting Corporation i
(202) 628-4888 l
- n
m-21221 1
headquarters, and I didn't know about it, and that's when I
(}
2 ascertain that it was May 6th that it was provided.
3 Q
Now, do you know whether anyotie on your staff at 4
the state emergency management office was consulted in 5
responding to written discovery, such as these 6
interrogatories, prior to June 3, 19887 7
A Not to my knowledge.
8 MR. SISK:
Now, I'm new going to hand you a 9
cocument and ask that it be marked for identification as 10 LOCA Exhibit, I think we're up to 16.
11 This document is entitled "State of New York's 12 Response to LOCA's Thi.*d Set of Interrogatories and Request 13 for Production of Documents".
It bears in the upper right-O 14 hand corner a date, July 5, 1988.
15 BY MR. SISK:
16 Q
Mr, DeVito, for the record, it contains e 17 verification which is signed by Mr. Davidoff and another 18 verification which I believe is signed by you.
19 Can you identify that document for me?
20 MR. GLEASON:
Excuse me a minute.
This document 21 will be designated as LOCA Discovery Exhibit Number 16.
22 (The documet referred to was 23 marked for identification as 24 LOCA Discovery Exhibit 16.)
()
25 MR. ZARNLEUTER:
Judge Gleason, the document has Heritage Reporting Corporation (202) 628-4888'
~
]
21222 1
just been identified actually by Mr. Sisk, and, so, I would
(}
2 seek a clarification about what the nature of the question 3
is seeking an identification from Mr. DeVito.
4 MR. SISK:
I'm asking him to identify the 5
document, the entire document initially, if he can.
6 BY MR. OISK:
7 Q
Can you tell me what it is?
8 a
I don't remember the formal designations here, but 9
I recall some of the languag0 that's contained herein.
So, 10 I've seen it before.
11 Q
Have you read this document in its entirety prior 12 to today?
13 A
Yes.
O 14 Q
And let me ask you to turn to your verification.
15 As I understand it, your verification is limited to the last 16 three sentences of the response to Interrogatory Number 125, 17 is that correct?
18 A
That is correct.
19 Q
Let me ask you te turn back to -- let me ask you 20 this.
Could you turn back to the answer to Interrogatory 21 Number 124, and I believe a portion of that answer was 22 verified by Davidoff, not by you?
23 Let me ask you whether you reviewed the statements 24 made by counsel that are referred to in the transcript of
()
25 the NRC proceeding on page 3 in response to Interrogatory Heritage Reporting Corpcration (202) 628-4888
21223' 1
Number 124.
9 2
Have you reviewed those portions of the O
3 transcript?
4 A
Generally, when I went over this document.
5 MR. LANPHER:
Could I ask for a clarification?
Is 6
the question whether Mr. DeVito looked at the trial 7
transcript or looked at this answer?
8 MR. SISK:
Looked at the trial transcript.
9 THE WITNESS:
No, sir.
i 10 BY MR. SISK:
11 Q
Now, let me direct your attention to the sentence 12 after the reference to the trial transcript,.and
.13 specifically the portion following the colon.
It says, "The
()
14 State of New York provided LOCA with a copy of a successor 15 New York State Disaster Preparedness Plan of an outdated 16 portion of the Suffolk County Emergency Operations Plan",
17 etc.
18 Mr. DeVito, is that information true to your 1.9 knowledge?
20 A
Yes, it is, and I believe we covered that earlier 21 in both constructs.
22 Q
Okay.
Now, but you have not reviewed the 23 statements of counsel that were referred to, that is, the 24 specific statements that are referred to as being in the 25 transcript of the hearing?
Heritage g
ration
R 21224.
1 A
I have not' reviewed the transcript of the hearing.
(}
2 Q
Okay.
Now, Mr. DeVito, let me hand to you --
3 well, let me do this.
4 MR. SISK:
Let me move admission of the entire 5
document, if possible, so that we don't have to wait for Mr.
6 Davidoff to verify it, into the record at this point.
7 If the state insists on waiting for Mr. Davidoff 8
to confirm his verification, that will be fine, I suppose.
9 It may be easier to do it now because the verification is 10 under oath and in writing.
11 MR. GLEASON:
Does the state insist on waiting for 12 Nr. Davidoff?
13 MR. ZAHNLEUTER:
The State of New York is willing O
~
14 to stipulate that Mr. Davidoff's verification is true and 15 correct and, indeed, that was the understanding that we 16 provided.
17 There is no challenge to Mr. Davido f f' s 18 verification.
I don't really understand what the nature of 19 this offer into evidence of these responses is.
20 I mean, I stipulate that the state asserts this 21 document, and I stipulate that it's verified as stated 22 within.
23 MR. SISK:
Judge Gleason, I believe the contents 24 of those responses may become important.
()
25 MR. GLEASON:
Pardon?
Heritage Rep rting Corporation (202) 628-4888
21225 1
MR. SISK:
I believe the contents of those
{}
2 responses may become important.
3 MR. LANPRER:
I suggest, therefore, that we defer 4
ruling on this proffer until we find out if this is material 5
at all to this_ proceeding.
I don't understand the relevance 6
at this time, Judge.
7 MR. GLEASON:
When are you going to make that kind 8
of an effort, Mr. 31sk?
9 MR. SISK:
Very quickly, I hope.
10 MR. GLEASON:
Well, let's move on then.
11 MR. SISK:
Now, Mr. DeVito, I'm next going to hand 12 you a document and ask that it be marked as LOCA Discovery 13 Exhibit 17, a document, dated June 28, 1988, and entitled 14 "Government's Response to Board Order of June 24, 1988".
15 MR. GLEASON:
This document will be designated as 16 LOCA Discovery Exhibit Number 17.
17 (The document referred to was 18 marked for identification as 19 LOCA Discovery Exhibit 17.)
20 BY MR. SISK:
21 Q
Mr. DeVito, if you'll turn to page 10 af this 22 document, at the top of page 10, there is a paragraph that 23 begins with "Donald DeVito".
I'll ask that you read that 24 paragraph from that point down to the next heading, "LOCA".
()
25 (Pause)
Heritage Reporting Corporation (202) 628-4888 i
21226 1
BY MR. SISK:
2 Q
Mr. DeVito, is it true that SEMO has authority to O
3 review state and local government emergency plans for non-4 nuclear emergencies?
5 A
Depending on how you interpret authority.
Do we 6
have a legal authority to pass judgment on those plans?
No.
7 We' provide advice, counsel, coordination, that sort of 8
thing.
9 Q
But, that is, for local government emergency plans 10 for non-nuclear emergencies, is that correct?
11 A
Generally speaking, yes.
12 0
What do you mean by generally speaking, yes?
13 A
That as a general process for an office, like the
()
14 state emergency management office, that we would do that 15 kind of thing under today's program management.
That may 16 not have always been the case.
I can't attest to that.
17 Q
As long as you have been with SEMO cr ODP?
18 A
For those counties that have been involved in the 19 population protection planning effort, yes.
20 Q
Now, let me ask you to read he next sentence.
It 21
- states, "Mr.
DeVito will testify that Sbwa personnel have 22 known for many years that Suffolk County, like other 23 counties in New York, had a plan for dealing generally with 24 emergencies."
(~T 25 Mr. DeVito' is that correct?
\\j Heritage Reporting Corporation (202) 628-4888
w 21227 1
A I don't think I could so testify.
{}
2 MR. GLEASON:
I didn't hear your response, 3
THE WITNFSS:
I don't believe I could make that as 4
an absolute statement, that SEMO personnel have known for 5
many years that Suffolk County had a plan for dealing 6
generally with emergencies nor did I say that for any county 7
in the state.
8 As I've indic ated earlier, _ the effort that we have 9
undertaken in the last several years has been designed to 10 make that a very true statement, but I can't attest 11 absolutely that that's correct.
12 BY MR. SISK:
l 13 Q
Mr. DeVito, there's -- the next sentence states O
~
14 that
-- well, let me ask you this.
Do you know whether 15 SEMO personnel have known for many years that Suffolk County 16 has a plan for dealing with generally with emergencies?
17 A
Not to my knowledge, and I've never asked that 18 question.
19 Q
Would Mr. Hirshkowitz be in charge of that?
20 A
Again, his program is narrowly focused on the 21 population protection planning effort, and he may or may not 22 be aware of such an issue.
In any event, we did becomo 23 aware of it on May 6th.
24 Q
Mr. DeVito, the nex sentence states that he,
()
25 referring to Mr. DeVito, "would also testify that a copy of Heritage Renorting Corporation (202) 628-4888
21228 1
the county operations plan was located in SEMO files in June r-2 6th, 1988, and that this copy was received from Suffolk (g/
3 County on May 6th, 1988."
4 I'll stipulate that's what you said earlier.
5 Now, in that statement, there's -- it refers to 6
"this copy was received from Suffolk County on May 6th, 7
1988."
8 To your knowledge, did anyone within SEMO have a 9
copy of any Suffolk County plan for dealing with emergencies 10 prior to May 6th, 1980?
11 A
To my knowledge, no, because the specific question 12 I asked when the document was made known to me was when did 13 we get this.
14 Q
Mr. DeVito, the next sentence says, "He would 15 testify that the state obtained that copy in connection with 16 a SEMO review of non-nuclear emergency plans in early May 17 1988c and not in connection with any Shoreham-related 18 matcers."
19 Mr. DeVito, is that true?
20 A
That is correct. That's in conjunction with the 21 planning effort that I described earlier.
l 22 0
Okay. And what is meant by "a SEMO review cf non-23 nuclear emergency plans"?
24 A
That's the process that I was describing earlier,
()
25 where staff would visit a community that was scheduled to Heritage Rep rting Corporation (202) 628-4888
m=
1 21229 1
participate in population protection planning effort, and
("T 2
that's the opening part, to meet with local officials and
'v' 3
determiqe what is/what isn't, and what the program is all 4
about.
5 It's not -- I think to categorize it as a SEMO 6
review of emergency plans is really not a correct statement.
7 Rather, it is the initiation of the planning process. Then, 8
of course, if any documents were delivered that purported to 9
be a plan or the draft of a plan or particular portions of 10 what one would hope to be a plan, we would start conducting 11 that review at that time.
12 13 O
14 15 16 17 18 19 20 21 22 l
l 23 24
()
25 Heritage Reprting Corporation (202) 628-4888
F h
21230 O
(,/
1 MR. GLEASON:
Excuse me.
That's what you were 2
testifying you were doing with respect to this. accounting 3
4 THE WITNESS:
That's correct.
5 BY MR. SISK.
6 Q
This plan which you way was obtained by Mr. Borkman 7
was obtained on May 6, 1988, and you did not personally learn 8
of it until June 6, 1988, is that right?
9 A
That's correct.
10 Q
Do you recall being deposed on April 23, 1988 in 11 this proceeding in Albany-in a certain conference room?
12 A
I remember the occasion but not the date.
If you 13 say it was the 29th, I'll accept that.
14 MR. SISK:
I vouch for that for the record.
15 BY PE. SISK:
16 C
At that time do you recall my asking you whether 17 there is a Suffolk County disaster plan that is either 18 included within or referenced in the New York State disaster 19 preparedness plan?
20 A
I don't remember the specific question.
As you will 21 recall, there were a number of them.
22 Q
Let me ask one of my associates to hand you a copy 23 of the deposition transcript dated April 29, 1988.
24 (Pause) 25 Q
I am not at all certain it will be necessary to Heritage Reporting Corporation (202) 628-4888
21231 1
. admit this, but perhaps we had better mark it for 2
identification.
It's a LOCA Discovery Exhibit #18.
3 0
.Along with the deposition I would like to have 4
marked with it as part of Exhibit (18, the notice of 5
deposition which was bound in with that deposition as Exhibit 6
- 1.
7 (Pause) 8 MR. KLINE:
Both the notice of deposition and the 9
deposition itself will be marked as LOCA Discovery Exhibit 10
- 18.
11 (The document referred to was 12 marked for identification as 13 LOCA Exhibit #18.)
(~)
14 BY MR. SISK:
15 Q
Referring specifically to item two on the notice of 16 deposition, that item requests that you bring to the 17 deposition a true copy of the current New York State disaster 18 preparedness plan, specifically including any and all 19 portions, appendices, attachments, or exhibits that involve 20 what pertain to Suffolk County, and specifically include any 21 Suffolk County disaster drawing.
22 On page seven of your deposition tranocript, I asked 23 you a question about that particular item on the deposition 24 notice.
The question at the top of page seven, line five, 25 states "Mr. DeVito, is there a Suffolk County disester plan r~s
'\\_)
Heritage Reporting Corporation (202) 628-4888
4 r<
21232 O) -
t-1 that is either included'within or referenced to the New York 2
State disaster preparedness plan?"
Your answer was, "To my 3
know2 edge, no."
4 There is then a'following question, "Do you know 5
whether there is such a document?"
Followed by an-objection.
6 Followed by the question, "Do you know whether such a document 7
exists or is referenced in the New York State plan?"
Your 8
answer was, "I do not believe so, no."
9 Mr. DeVito, at the time you made that statement, I 10-gather you were unaware of the existence of any Suffolk County 11 disaster preparedness plans.
Is that correct?
12 A
Obviously, or my answer would not have been what it 13 is.
O 14 Q
If we turn to page 25 of the deposition, there's a 15 question beginning on line six that says, "Mr. DeVito, do you 16 know whether Suffolk County has, as you called it, a broad-17 baced disaster preparedness plan?"
Your answer was, "No, I
18 don't.
You'd have to check with Suffolk County on that.
19 The next question is, "Is there anyone within the 20 State Emergency Management office who would know the answer to 21 that question?"
Your answer is, "I would doubt it.
I would 22 doubt it because remember that this process is of relatively 23 recent vintage over the last several years.
24 Theru's another paragraph that follows that.
There 25 is then a question near the bottom of the page, "Who within Heritage Reporting Corporation (202) 628-4888
1
.21233 f) 1 the State Emergency Management Office is responsible for 2
providing assistance to local governments with respect to 3
these broad-based disaster preparedness plans?"
There is an 4
objection at that point.
You answered, "Be a little more 5
specific. I'm trying to give you as concrete an r.nswer as I 6
can get, but..."
7 There is.then a question, well Joc rae ask you, is 8
there anyone in the State Emergency Management Office who is 9
responsible for providing state assistance to J ocal 10 governments in preparing the broad-based local disaster 11 preparedness plan.
12 Your answer was, "In the final analysis I would be, w
13 after all, while one might be able to delegate authority, you 14 cannot delegate responsibility.
So in the final analysis, I'm 15 responsible for that, but I do have a staff and a plan that is 16 engaged in those types of activities.
17 There is then a question, "Who s'. thin the planning 18 section is engaged in those types of activ/. ties?"
The answer 19 is, "There are a number of people, about seven or eight, at 20 this point.
21 Question, "Could you give me the names of those 22 people to the best of your recollection?"
Answer, "My section 23 chief is Richard Herskewitz. He's my Chief of Plannina.
I 24 would depend upon him to advise me as to what activities had 25 taken place in any given year and what the status of those Heritage Reporting Corporation (202) 628-4888 l
J
k e
Y 21234 O
1 miehe he in anv elven vear.-
c 2
There is then, Mr. DeVito, reference furth3r down 3
-about the federally funded programs that we've been talking 4
about today.
5 Mr. DeVito, at the time you provided thcee answers 6
on April 29, 1988, were you aware that anyone fron your 7
planning section was planni g to go down to Suffolk County to-8 assist with the preparation of a general disaster plan?
9 A
I had no specific date that that would occur, but I 10-knew that was a normal part of the process, that that would-11 occur at some point.
12 Q
Did you know that Suffolk County was on the agenda, 13 so to speak, for 1988?
(
14 A
For the Population Protection Planning Loard?
15 0
Yes.
16 A
Yes.
17 Q
And you knew that based upon having been briefed by 18 Mr. Herskewitz?
19 A
And based upon negotiation sessions with the Federal 20 Emergency Management Agency.
21 Q
When did those negotiation sessions with the Federal 22 Emergency Management Agency begin?
23 A
They take place prior to the start of the federal 24 fiscal year.
25 Q
When would that have been?
In 1987?
()
Heritage Reporting Corporation l
(202) 628-4888
[
,v a
21235 1
A Right.
2 Q
So as of 1987 you and Mr. Herskewitz knew that 3
Suffolk County would be up for a review of some sort as to, or 4
some assistance in preparing a broad-based general disaster 5
plan?
6 A
Should they choose to do so, yes.
They can not 7
participate in the program.
8 Q
And the-consequence of not participating is that 9
they get-no money, is that correct?
10 A
They don't get the Emergency Management Assistance 11 funding.
- 1:2 Q
But they had been receiving that funding, I believe 13 you stated, up to that point.
Os 14 A
That's correct.
15 0
So failing to participate would have resulted in 16 Suffolk County losing that money, is that correct?
17 A
If the Federal Emergency Management Agency chose to 18 w.ithhold it on that basis.
19 Q
SEMO would not make that decision?
20 A
That's not our choice.
21 Q
FEMA would?
22 A
FEMA would.
23 MR. GLEASON:
Let's take a five minuto recess 24 pAease.
25 (Whereupon, a brief recess was taken.)
O Heritage Reporting Corporation (202) 628-4888
(
7n in 8
l -
21236 O
D 1
MR. GLEASON:
We're ready, Mr. Sisk.
2 BY MR. SISK:
1 3
Q Mr. DeVito, while you have your deposition before 4
you could you turn to page 1007 5
(Pause) 6 Q
There is a question on page 100 beginning at Line 7 7
which states, "Mr. DeVito,'does the statement radiological
-8 emergency preparedness plan identifying the-state resources 9
that could be employed to respond within_the ingestion pathway And 10 of Shoreham in the event of an emergency at Shoreht 11 your answer was, "I believe I've indicated on more than one 12 occasion, counselor, I am not an expert in the state's 13 radiological emergency preparedness plan.
That is precisely.
14 why we have' established in this state a Radiological Emergency 15 Preparedness Group to deal with those kinds of issues', because 16 they are such specific issues, so I don't have that kind of 17 expertise."
18 Mr. DeVito, does that remain an accurate answer to 19 your question that was asked at that time?
20 A
I haven't gained any greater expertise as a result 21 of these hearings, counselor.
22 Q
Doec anyone within the State Emergency Management 23 office have the kind of expertise you're referring to with 24 respect to resourcos that could be employed?
That is state 25 resources that could be employed to respond within the O
Heritage Reporting Corporation (202) 628-4888 I...
21237 1
ingestion pathway of Shoreham?
2 A
With respect to ingestion pathways generally, we do 3
have a radiological section and they obviously have expertise 4
in radiological matters.
They assist and work with the 5
Radiological Emergency Preparedness Group who has the 6
fundamental responsibility for any power generating facility.
7 So in the construct of your question, should there be reason 8
to do so they would be the person who would be responsible for 9
that effort, the REP Group.
10
-Q Do you have a radiological section within the State 11 Emergency Management Office?
Is that correct?
12 A
Yes sir.
13 Q
Who is the head of that section?
O 14 A
One Lee Batis.
Their focus is, again, on the civil 15 defense issues.
16 Q
Those are then the civil defense experts as it were 17 within the State Emergency Management Office?
18 A
That is correct.
19 Q
Is Mr. Germano a part of that group?
20 A
No, not at the present time.
21 Q
Was he formerly a part of that group?
22 A
That's where he was before he became the Chief of 23 Staff.
24 Q
So there are still personnel within SEMO who have 25 civil defense responsibilities, is that correct?
Heritage Reporting Corporation (202) 628-4888
21238 s _
1 A
That is correct.
2 Q
Do those people engage in any kind of review or 3
coordination with local governments on civil defense planning?
4 A
As they would pertain to their particular area of 5
expertise.
6 Q
What do you mean by as it would pertain to their 7
particular area of expertise?
8 A
Since the focus of most civil defense planning as 9
required by the Federal Emergency Management Agencies on the 10 nuclear attack issue, then obviously there are nuclear issues 11 associated with that and that would be the area where they 12 would focus.
13 Q
Did you consult with any of the members of that 14 radiological section to see if they had any prior knowledge.of 15 the Suffolk County emergency operations plan prior to May of 16 1988?
17 A
The general requirement was to all sections to 18 provide me anything they had that might pertain, however 19 remotely, to the issue of discovery.
20 Q
When you say the request was to all sections, was 21 that by written memorandum that you sent out requesting that 22 documents be produced or found?
23 A
No, it was word of mouth.
24 Q
Mr. DeVito, do you know whether Mr. Germano has any 25 expertise with respect to state resources that could be O'
Heritage Reporting Corporation (202) 628-4888
21239 1
employed to respond within the ingestion pathway?
2 MR. LANPHER:_ I object.,
I suggest that we cover 3
that with Mr. Germano when-he is here.
4 MR. GLEASON:
He's his boss, so let him respond to 5
it.
6 THE WITNESS:
He has a general level of expertise in 7
many areas associated with the Emergency Management Office, 8
and that's part of the reason I made him Chief of Staff.
And 9
as he comes out of the radiologic section, radiological 10 defense section, one would assume that he has some particular 11 expertise in that regard.
12 BY MR. SISK:
13 Q
Has Mr. Germano to your knowledge engaged in O
14 training of local government personnel with respect to 15 radiological responses?
16 MR. LANPHER:
I object to that question, Judge 17 Gleason.
Training --
18 MR. GLEASON:
Where is this going, Mr. Sisk?
19 MR. SISK:
Let me try to focus it.
20 BY MR. SISK:
21 Q
Do you know whether Mr. Germano has engaged in any 22 training of Suffolk County personnel with respect to 23 radiological responses?
24 MR. LANPHER:
The same, I didn't finish my objection 25 before, Judge Gleason.
Training is not an issue in this Heritage Reporting Corporation (202) 628-4888
21240
()
1 proceeding.
We've had disagreements about scope, but we're 2
way outside the scope here.
This doesn't relate to production 3
of documents or di covery issues.
I think it's time to stop 4
this.
5 MR. GLEASON:
Mr. Sisk?
6 MR. SISK:
It relates to state planning, and 7
particularly to state planning that might have informed our 8
realism argument with respect to Suffolk County.
9 MR. LANPHER:
Judge Gleason, with all respect, that 10 wasn't an answer.
11 MR. GLEASON:
That takes us beyond the scope.
12 Proceed.
13 BY MR. SISK:
O)
'N_
14 Q
Mr. DeVito, does the State Emergency Management 15 Agency of the New York State Disaster Preparedness Commission 16 issue guidance documents to assist local governments in 17 preparing disaster plans?
18 NR. LANPHER:
Can I have that question read back?
19 I'm sorry.
I didn't hear it.
Or could you repeat it?
20 BY MR. SISK:
21 Q
Ooes the State Emergency Management Office or the 22 State Disaster Preparedness Coinmission issue guidance 23 documents to local governments to assist them in preparing 24 local disaster plans?
25 A
When we can.
Heritage Reporting Corporation (202) 628-4888
n 21241 1
Q Are you familiar with the document --
2 MR. GLEASON:
Excuse me, I didn't hear the answer.
3 THE WITNESS:
When we can.
We can't do it all the 4
time, we just don't have the resources to deal with providing 5
guidance documents end upon end.
That's the general gist of 6
what we would provide, is an overall guidance document.
Some 7
sort of direction as to what people would consider development 8
of a plan.
9 MR. GLEASON:
Have you provided such guidance?
10 THE WITNESS:
On a number of occasions --
11 MR. GLEASON:
As a matter of fact have you provided 12 such guidance?
13 THE WITNESS:
On a number of occasions in the past.
14 MR. GLEASON:
On a number of occasions.
Statewide?
15 THE WITNESS:
For example, we have provided, the 16 county has met a Hazardous Materials Planning Guide. Again, 17 these are not to in any way be interpreted as boilerplate 18 plans.
They are simply advice and counsel to jurisdictions as 19 to what they ought to be considering should they choose to 20 develop a hazardous materials plan. We've done that on a 21 number of subjects.
22 BY MR. SISK:
23 Q
Mr. DeVito, I will now hand you a document that I'd 24 like to have marked as LOCA Discovery Exhibit #19.
It's title 25 is a "Guide to Local Government Disaster Planning."
It bears I ')
Heritage Reporting Corporation (202) 628-4888
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i 21242
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1
'the logo of the New York State Disaster Preparedness 2
Commission.
3 MR. SISK:, I'd like to consider at this point, three 4
documents as a group to expedite. The next document which I'd-5
'like to have marked, perhaps we'd better mark that one --
6 MR. GLEASON:
Let's at least mark the documents one 7
at a time.
8 MR. SISK:
This document bears a number on the front 9
page in the upper right hand corner, LOO 915.
That, for the 10 record, is an_ identifying number placed on the document by 11 this law firm.
12 MR. GLEASON:
That document will be marked as LOCA 13 Discovery Exhibit fl9.
14 (The document referred to was 15 marked for identification as 16 Exhibit (19.)
17 MR. SISE:
The next document I will ask be marked as 18 LOCA Discovery Exhibit (20 is --
19 MR. LANPHER:
Just a second, Mr. Sisk.
My document 20 which we're supposed to mark as Exhibit #19, you'll be 21 sympathetic, 1-3-5-7-9.
22 MR. SISK:
Oh no.
Mine goes 1-2-3.
Have we 23 miscopied those?
24 (Pause) 25 MR. SISK:
Mr. DeVito, the next document which I'd Heritage Reporting Corporation
~'
(202) 628-4888
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s W-l 21243 1
like to have marked as LOCA Discovery Exhibit #20 is entitled 2
"Guide for Preparing a County Comprehensive Emergency 3-Management Plan in New York State."
4 The second page of that document in the lower left 5
hand corner states "SEMO -- February 1986."
6 MR. GLEASON:
This document will be-designated as 7
LOCA Discovery Exhibit $20.
8 (The document referred to was 9
marked for identification as 10 Exhibit #20.)
11 MR. SISK:
The next document which appears to be 12 related to the other two is entitled the "Basic Plan Component 13 of a County Comprehensive Emergency Management Plan." On the O
14 second page its title is "Prototype of Standard Format with a 15-Basic Plan Component of a County Comprehensive Emergency 16 Management Plan in New York State."
in the lower right hand 17 corner, that too has a designation of "SEMO -- February 1986."
18 MR. GLEASON:
That wil' be designated as LOCA 19 Discovery Exhibit #21.
20 (The document referred to was 21 marked for identification as 22 Exhibit #21.)
23 BY MR. SISK:
24 Q
Mr. DeVito, can you identify those documents?
And 25 if you need to break them up go right ahead, but I'd like to
( )-
Heritage Reporting Corporation (202) 628-4888
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see if you can identify all three.
2 A
They are general planning guidance to be made 3
available to local governments to assist them should they 4
choose to complete a comprehensive emergency plan.
5 Q
Does SEMO prepare these documents?
6 A
Yes sir.
7 Q
If you refer to the document --
8 A
Recognizing, of course, that some of the inserts may 9
be extracted from other documents.
For example, there is some 10 federal guidance in one of these documents that was obviously 11 taken out of a broader based federal planning guide and 12 incorporated in the county planning guide.
13 Q
Mr. DeVito, are these documents prepared by your 14 agency in the ordinary course of the agency's business?
15 A
Not every year.
It just depends on what our work 16 schedule is from one year to the next as to what we can devote 17 resources to.
18 Q
Were these documents initially created in February 19 1986?
20 A
I don't recall the actual dates when all of this was 21 undertaken.
You made reference to some dates.
I would assume 22 that it was around that time frame or immediately preceding 23 that this process unfolded.
24 Q
Was there any type of guidance document or manual 25 relating to county disaster plans or local disaster plans O
Heritage Reporting Corporation (202) 628-4888
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i:
21145 i
()
1 which was issued by SEMO which pre-dated these documents?'
2 A
The overriding guidance, as I have indicated 3
earlier, would come from the federal and civil preparedness 4
guides since it is in compliance with that program that these 5
efforts are attempted.
6 Q
Were there any earlier versions of state documents 7
like these?
8 A
I have no recollection of that.
9 Q
Who within SEMO is responsible for preparing this 10 kind of guidance document?
11 A
The planning section.
12 Q
That's Mr..Herskewitz's section?
13 A
That is correct.
14 Q
Does Mr. Horton assist with that?
15 A
That is correct.
16 Q
If you'll turn to the document that has been 17 identified as Exhibit (20, it's the one that begins "Guide for 18 Preparing County Comprehensive Emergency Management Plan in 19 New York State."
20 If you'll turn to page one of the document, in the 21 middle of the page it says, "A comprehensive plan consists of 22 the following components:" and then it follows with a list of 23 plan compenents.
It refers on page two to a requirement for 24 annexes.
Page two refers specifically to specific plan 25 requirements related to an emergency function such as
()
Heritage Reporting Corporation (202) 628-4888
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1 evacuation.
2 Are those components required parts of a 3
comprehensive county plan?
4 MR. LANPHER:
Judge Gleason, I object. He hasn't 5
linked this at all to the issue in this proceeding regarding 6
the production of plans or procedures.
7 MR. GLEASON:
Maybe he's going to tie it up.
Let 8
him proceed, or we'll be here all night, Mr. Lanpher.
9 MR. LANPHER:
Or the Board could sustain my 10 objection.
We don't have to be here all night.
11 MR. GLEASON:
Well that's one way of looking at it.
12 But I'm going to deny it, so let him proceed.-
13 BY MR. SISK f\\-
14 Q
Mr. DeVito, are these required components of a 15 county comprehensive disaster plan?
16 A
There are no required components since the state 17 does not mandate planning.
There are elements that are 18 suggested in a variety of documents as being good form to have 19 an effective emergency plan.
The overriding concern is the 20 guidance direction that is provided in the civil preparedness 21 guides from the Federal Emergency Management Agency for plans 22 to satisfy specific criteria in o.ider to be eligible for the 23 funding associated with the overall program.
24 Q
Let me ask you to turn to page five of that 25 document.
It lists annexes.
Annex B is entitled
()
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{(_)
1 "Radiological Protection."
Is that simply a suggested portion 2
of a local plan?
3 MR. LANPHER:
Excuse me, you said page five.
Didn't 4
you mean page seven?
5 MR. SISK:
I meant page five.
6 MR. LANPHER:
Okay.
7 THE WITNESS:
Those are the types of things that the 8
federal government would expect in compliance with the civil 9
preparedness guides and the kinds of things that ought to be 10 considered in order to provide broad-based public protection.
11 For example, the hazardous materials annex is a 12 reasonable kind of thing to consider in this day and age.
I 13 remind you that the thrust here is to attempt to come up with 14 an overall document and then have specific orientation 15 contained in other documents.
16 BY MR. SISK:
17 Q
What about the annex for, the suggested annex or the 18 mass evaluation management, is that something FEMA encourages 19 local governments to include?
20 A
That is something that FEMA all too often emphasizes 21 to the exclusion of other approaches.
22 Q
Mr. DeVito, the next document, LOCA Exhibit #21 23 which is labeled on the second page "Prototype of Standard 24 Format for the Basic Plan Component," etcetera.
Is this 25 intended to be just a draft form of a plan for the local
()
Heritage Reporting Corporation (202) 628-4888
21248 O
1 government to simply fill in the blanks?
2 A
No..We don't particularly encourage the boilerplate 3
approach.
What we're attempting to do is recognizing that 4
many jurisdictions in New York State do not have fully 5
established emergency management offices.
In some counties, 6
for example, there's only a part time director.
We're trying 7
to provide as much assistance administratively as we can so 8
that those who don't have perhaps the wherewithal to go into 9
an extensive planning effort would at least have a guide to 10 follow in the development of their particular plan.
11 Q
This document in the introduction refers to 12 directions set out in Section 23 of the New York Executive 13 Article IIB and FEMA Plan Criteria presented in CPG 1-8A.
Are
)
J 14 those the types of requirements or the types of suggestions 15 that SEMO is now recommending for inclusion in local plans in 16 order to qualify for the emergency management assistance 17 funding?
18 A
Yes, but it goes beyond that.
It's to encourage the 19 development of such coordinated documents to protect the 20 public.
21 Q
Mr. DeVito, there is a component in this plan which 22 is entitled Annex B.
It appears very near the end of the 23 document, I think approximately 10 or 11 pages from the end of 24 the document.
It's entitled "Local Radiological Protection 25 Annex."
It states, "Revised 12-86."
Heritage Reporting Corporation (202) 628-4888
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21249 1
Is this a recommended portien of a local disaster 2
plan?
3 A
Again, it's the kinds of things that should be 4
considered in the development of a radiological annex at the 5
local level.
6 Q
But it's not a plan or a draft section of a plan per 7
se?
8 A
No, it's not intended to be that at all.
9 Q
Mr. DeVito, if you refer to the end of this 10 document, page 10, there is a reference to the New York State 11 radiological response plan, the CPG 1-8 Guide, and to CPG 1-8A 12 Guide.
The first reference is, I suppose, to the radiological 13 component of the state disaster plan, is that correct? The 14 radiological emergency response plan, or radiological 15 emergency preparedness plan.
16 A
That's correct.
17 Q
Are the CPG documents FEMA guidance documents?
18 A
Yes they are.
19 Q
Do you know the dates of those FEMA guidance 20 documents?
21 A
No, I'm afraid I don't.
22 MR. SISK:
Judge Gleason, the only portion of these 23 documents that I would like to move to adniit at this time is 24 the Annex B of Exhibit (21 since the witness, I think, has 25 answered the questions with respect to what these documents Heritage Reporting Corporation (202) 628-4888
cm 21250 l
are and what they're supposed to do.
It's not necessary to 2
put them in full text.
3 The Annex B, we should perhaps designate as LOCA 4
Exhibit #22 and I'll move its admission into the record 5
separately.
6 MR. GLEASON:
It will be so designated.
7 (The document referred to was 8
marked for identification as 9
Exhibit #22.)
10 MR. SISK:
I will vouch for the record, well let me 11 just simply move that it be admitted at this time.
12 MS. YOUNG:
Excuse me, Judge Gleason.
I notice that 13 Annex B has occasional words that are blurried in our copy.
14 Page two.
15 MR. SISK:
My copy is legible.
If anyone's is not, 16 we'll replace it.
17 MR. LANPRER:
Mine is illegible.
18 MS. YOUNG:
There are portions throughout.
19 MR. SISK:
Let me just proffer one copy for the 20 record, and if people would like to pass it around, that's 21 fine.
22 MR. GLEASON:
Is there objection to its admission to 23 the record?
24 MR. LANPHER:
Judge Gleason, this is part of a large 25 document which I haven't had an opportunity to review in full.
Heritage Reporting Corporation (202) 628-4888
4 21251 O.
xf 1
I'd like a chance to review it before I 2
MR. SISK:
Let me make my proffer.
All three of these documents were produced to LOCA in discovery either on 4
July 5 or July 6, we received _them on either July 6 or July 7 5
by Federal Express from the State of New York.
We did not 6
have them prior to that time.
7 MR. GLEASON:
Do you still want to look it over?
8 MR. LANPHER:
I do.
I frankly don't understand why 9
a portion is being moved into evidence.
Am I correct that you 10 want to move in LOO 87 through 807 11 MR. SISK:
870.
12 MR. LANPHER:
870 through 80.
I haven't reviewed 13 the entire document and this is one 12 page portion of the 14 whole document, so I'd like an opportunity to look at it 15 overnight.
16 MR. GLEASON:
All right, let him look at it 17 ove night then and we'll take care of it tomorrow.
18 MR. LANFRER:
Thank you.
19 MR. SISK:
I would like a clean copy to go to the 20 reporter.
If someone else would provide it.
We do have 21 another clean copy, so that will be fine.
22 MR. LANPHER:
Was this separately marked then as an 23 exhibit?
24 MR. GLEASON:
It's marked as Exhibit #22.
()
Heritage Reporting Corporation (202) 628-4888
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'l 21252 1
BY MR. SISK:
2 Q.
Mr. DeVito,-I will now ask one of my associates to 3
hand to you a document from the Federal Emergency Management 4
Agency, actually two documents from the Federal Emergency 5
Management Agency.
One bears the logo in the upper right hand 6
corner, "CPG 1-8/ October 1985."
Its title is "Guide for 7
Development of State and Local Emergency Operations and 8
Plans."
9 There is then a document that bears t.e designation 10 in the upper right hand corner "CPG 1-8A/ October 1985."
It 11 states "Interim Guidance, guide for the review of state and 12 local emergency operations plans."
fs 13 (Pause) d 14 Q
Do you recognize those documents?
15 MR. LANPHER:
Is this going to be one exhibit or 16 two?
17 MR. SISK I apologize. Let me ask that they be 18 marked as Exhibit #23 and Exhibit #24.
CPG 1-8 as Exhibit #23, 19 and CPG 1-8A as Exhibit #24.
20 MR. GLEASON:
They are so marked.
21 (The documents referred to were 22 marked for identification as 23 Exhibits #23 and #24.)
24 BY MR. SISK:
25 Q
Do you recognize these documents?
O Heritage Reporting Corporation (202) 628-4888 i
t 21253 O>
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1 A
I haven't looked at them in some time, but they 2
appear to be what they purport to be.
3 Q
What is that?
4 A
The civil preparedness guides I have been referring 5
to during this hearing.
6 Q
These documents are issued by FEMA?
7 A
That is correct.
8 Q
Does your agency receive these documents or 9
documents like this in the ordinary course of its business?
10 A
That is correct.
11 Q
Do you know whether your agency has received copies 12 of these particular guides in the ordinary course of its 13 business?
14 A
In terms of the date, the October 1985 version?
15 Q
In terms of the designation CPG 1-8 and 1-8A.
16 A
Yes.
17 Q
But you're not clear as to which version may be in 18 your office's files?
19 A
I would assume that as a matter of routine, whatever 20 the timing may be, that the Federal Emergency Management l
21 Agency when these documents are printed up will disburse them 22 to the states.
I have seen documents like this.
Whether they 23 were the '85 version or not I don't specifically recall. I I
24 don't review these on a daily basis.
But the normal scheme of 25 things would say they would be distributed to us.
)
Heritage Reporting Corporation (202) 628-4888 l
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21254
' '.O
. \\/
1 Q
Mr. DeVito, if you will refer to the document that 2
has been designated as Exhibit (24, can you refer to page-2-17 3
A Which one is #24?
4 Q
The shorter document.
1-8A.
5 A
The page again?
6 Q
2-1.
7 Under EOP Review it states, "State Emergency 8
Management Agency personnel are required to review EOP's by 9
completing the EOP Orosswalk specified in this chapter for 10 each EOP that is updated by an EMA participant jurisdiction 11 and for each EOP that is developed by a non-EMA participant 12 jurisdiction."
13 Mr. DeVito, does this refer to the review by your 14 c"fice of each county EOP that is either updated or developed 15 initially?
16 MR. LANPRER:
Judge Gleason, I object.
This is 17 Cross-Examination about a FEMA guidance document.
It is not 18 responsive to discovery.
I don't know where LOCA got it, and 19 it's not germane to the issues that this Board is supposed to l
20 be considering about whether the state and county complied l
23 with discovery.
22 MR. GLEASON:
What is the purpose for using this 23 document, Mr. Sisk?
24 MR. SISK:
Judge Gleason, I'm trying to determine 25 whether the State Smergency Management Office in fat is Heritage Reporting Corporation i
(202) 628-4888
21255
(~Y
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1 required to review local plans periodically in order to ensure 2
federal funding in accordance with these documents.
5 Specifically I will then ask the witness whether any 4
predecessorsoto this document exist, and take it from there.
5 MR. LANPHER:
But federal funding has nothing to do 6-with the issues presented, and Mr. DeVito has made very clear 7
in a lot of earlier testimony that the state of New York did 8
not review the Suffolk County plan earlier in the context of 9
these CPG documents.
10 MR. GLEASON:
If there is a general effort to try to 11 determine if there are other plans that have been reviewed --
12 MR. LANPHER:
Why don't they ask Mr. DeVito?
g-13 MR. GLEASON:
He may have his own way of getting 14 about asking him, so we'll just have to be patient.
15 MR. LANPHER:
Could I understand your ruling then?
16 If this is a pursuit of attempting to find out if there are 17 other plans the state should have produced then the inquiry is 18 acceptable?
19 MR. GLEASON:
I don't want to respond to that 20 question right at the moment.
I don't know where his inquiry 21 is leading.
All I suggested is one possible area it could 22 lead to.
Then it would be acceptable.
I will concede that.
23 MR. LANPHER:
I didn't hear him saying that.
I 24 heard him say it was going to be about funding, sir.
25 MR. GLEASON:
I understand that.
But generally O
Heritage Reporting Corporation (202) 628-4888
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/D
~#
1 people pay attention to funding requirements in government.
2 At least I've found it so.
Let him proceed and see where it 3
-goes.
4 Proceed, please.
5 BY MR. SISK:
6 Q
Does this refer to, the sentence I've just read you, 7
does that refer to your agency's or does that relate to your 8
agency's review of local emergency operations plans which are 9
either updated or developed for EMA funding?
10 A
That's a process I explained to you earlier.
It's 11 worked out on the basis of a work plan that's negotiated on an 12 annual basis.
13 Q
How many local government plans in the state of New
~
14 York are reviewed annually?
15 MR. LANPHER:
Object.
Irrelevant.
16 MR. GLEASON:
Objection denied.
Please respond.
17 THE WITNESS:
That would depend upon the amount of 18 funding and the amount of staff associated with that funding 19 that is available in any given year.
20 BY MR. SISK:
21 Q
Since you have been there in 1982, do you recall how 22 many local government plans or emergency operation plans have 23 been reviewed by your agency?
24 A
There are some 71, as I recall, EMA jurisdictions, 25 57 EMA jurisdictiona.
At the conclusion of this year, all of O
Heritage Reporting Corporation (202) 628-4888
21257 f'\\
'~
~ 1 those will have been completed.
2 Q
Does that mean that every plan in the state, every.
3 local emergency plan in the state has been reviewed by your 4
office since you have been with SEMO?
5 A
No, it means that all of those jurisdictions that 6
are EMA participants will have completed their emergency-7 operations plan requirement in accordance with the population 8
protection planning program by the end of this fiscal year.
9 Or if there is some associated work effort with any one of 10 those plans that cannot be completed for whatever reason, that 11 additional workload would be negotiated with FEMA into next 12 fiscal year should they concur with and accept the basis for r-13 the delay.
(>)
14 Q
And it was your testimony that this year is the 15 first year that Suffolk County's plan has been reviewed as 16 part of that process?
17 A
Yes sir.
18 Q
Is it the first time your office has ever reviewed 19 the Suffolk County plan, to your knowledge?
20 A
You're speaking of the --
21 Q
Whether it is in conjunction with this federally 22 funded process or otherwise.
23 A
To my knowledge, yes, but that's said in the context 24 of that letter you showed me earlier.
25 Q
Okay.
Heritage Reporting Corporation (202) 628-4888
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y 21258 gx(,)
1 MR. GLEASON:
Excuse me, Mr. Sisk.
Mr. DeVito, can 2
you educate me as to why planning for Suffolk County with the 3
large number of people it has would be so delayed in 4
comparison with all these other 57 entities, their plans?
5 THE WITNESS:
Part of it, of course, is a failure on 6
the part of the fedTral government to provide sufficient funds 7
to do enough of these plans in the short term part of the 8
process.
9 MR. GLEASON:
I thought you indicated you were going 10 to have all 57 done this year.
11 THE WITNESS:
No, 57 will be completed this year.
12 The process has been ongoing for several years.
The dilemma, 13 of course, is the availability of funds, the availability of 14 staff to do the effort, and then working out a work plan to do
_s that.
There are probably as many variations as to who should 16 go in what order as there are communities to be considered.
17 MR. GLEASON:
Wouldn't you say that it looks like it 18 appears that Suffolk County is at the end of the line of the 19 review process?
20 THE WITNESS:
No.
Suffolk County in conjunction 21 with several other counties that are being done this year will 22 complete the EMA jurisdictions, assuming that they are done on 23 time.
From that point on, where we go with non-EMA 24 jurisdictions, and I remind you as I stated earlier, there are 25 a number of those, and how many of the existing EMA
()
Heritage Reporting Corporation (202) 628-4888
w 21259 (D
1 jurisdictions that have already completed their emergency 2
operations plans, might be reviewad for update, I have 3
absolutely no idea.
That's a process tha' will have to be 4
negotiated with the Federal Emergency Management Agency, 5
MR. GLEASON:
How many EMA jurisdictions are there?
6 THE WITNESS:
Fifty-seven.
7 MR. GLEASON:
And Suffolk County is one of three 8
that is going to wind up the review of the EMA jurisdictions?
9 THE WITNESS:
It's one of several. Suffolk County 10 and I believe there are about five or six others.
11 MR. GLEASON:
Can you name them?
12 THE WITNESS:
I was afraid you might ask me that.
(g 13 Yates County, Nassau County, Albany County.
There are a V
14 number around the state.
15 MR. GLEASON:
Proceed, Mr. Sisk.
16 BY MR. SISK:
17 Q
Mr. DeVito I will now ask that my associates hand to 18 you a fairly thick document that was produced recently in 19 discovery by Suffolk County.
It is entitled "Radiological 20 Intelligence Annex K."
It bears a date of August 1976.
21 (Pause) 22 MR. SISK:
I'll ask that that be marked for 23 identification as LOCA Exhibit #25.
For the record, that was 24 produced under cover of a letter dated June 1, 1988 from Mr.
25 Lanpher.
O Heritage Reporting Corporation (202) 628-4888
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1 MR. GLEASON:
Is this to be raarked, Mr. Sisk?
2 MR. SISK:
I'm sorry.
Exhibit #25, 3
MR. GLEASON:
It will be marked as LOCA Discovery 4
Exhibit #25.
5 (The document referred to was 6
marked for identification as 7
Exhibit {25.)
8 BY MR. SISK:
9 Q
Mr. DeVito, have you ever seen that document'before?:
10 A
No sir, I have not.
11 Q
Its cover states that it is Annex K to the Emergency-12 Operc.tions Plan of New York State.
It is under the logo of 13 the State Civil Defense Commission, State of New York,
-)
%)
14 Division of Military and Naval Affairs, Radiological 15 Intelligence Section.
16 Your agency, the State Emergency Management Office 17 and its predecessor, the Office of Disaster Preparedness, are, 18 is the word operationally, part of the Division of Military 19 and Naval Affairs?
20 A
To simplify it let's say administrative 1y.
We're a 21 part of that because our operation line goes through the 22 chairman of DPC as I indicated earlier.
23 Q
I believe you stated earlier you don't know whether 24 the New York Civil Defense Plan as it existed prior to 1982 25 was entitled Emergency Operations Plan of New York State, is s'
Heritage Reporting Corporation (202) 628-4888
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Jt 21261.
1 that cori'ect?
l
'm 2
A That doesn't seem to be consistent in my mind.
i 4
3 Q
This doesn't refresh your recollection at all?
1 4
A
-No.
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6 7
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21262 T20 1
In the radiologic annex to any effort that
.( }
2 involved the Federal Civil Defense Program.
3 Q
Mr. DeVito, is that still true today?
4 A
(DeVito) I believe it is, but I couldn't swear 5
absolutely that Annex K is still the radiologic annex.
That 6
seemed to be an administrative item of convenience for the 7
federal programs.
8 Q
And who would know?
Would that be the people in 9
your radiological division?
10 A
(DeVito) Yes.
That would be their area of 11
_ responsibility.
12 Q
Mr. DeVito, have y)u personally participated in 13 any exercises for nuclear pla:.6.s in the State of New York?
14 MR. ZAFNLEUTER:
Objection.
()
15 MR. LANPHER:
Objection.
How is that relevant --
16 JUDGE GLEASON:
Would you repeat the question, 17 please?
18 BY MR. SISK:
19 Q
Have you personally participated in any exercises 20 for nuclear planta in the State of New York?
21 JUDGE GLEASON:
Object to that?
22 MR. LANPHER:
And the objection is that 23 Mr. DeVito's participation or non-participation is 24 absolutely irrelevant to the issues in this proceeding.
25 JUDGE GLEASON:
It is certainly relevant to the Heritage Reporting Corporation (202) 628-4888
{}
4 21263 1
issue of how knowledgeable he is in doing -- carrying out
()
2 his assignments.
3 MR. LANPHER:
But that wasn't the issue.
4 JUDGE GLEASON:
That is possible utilization for 5
the answer to that question.
The objection is denied.
6 BY MR. SISK:
7 Q
Have you?
8 A
(DeVito) Ever?
9 Q
Yes.
10 A
(DeVito) Yes.
11 Q
Have you ever seen a gentleman named Robert 12 Shepherd in any of those exercises?
13 A
(DeVito) The name does not ring a bell with me.
14 MR. SISK Judge Gleason, I'll leave that simply
)
15 marked for identification.
We'll come back to that tomorrow I
16 with this other county witness.
17 JUDGE GLEASON:
All right.
How much more do you 18 have, Mr. Sisk.
19 MR. SISK:
Very little I am pleased to say.
20 BY MR. SISK:
24 Q
Mr. DeVito, I will now hand to you a document 22 entitled, "Emergency Communications Development Plan, State 23 of New York, County of Suffolk."
This also I will vouch for 24 the record is a document recently produced in discovery by l
25 the State of New York.
l Heritage Reporting Corporation
(~}
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JUDGE GLEASON:
Mr. Sisk, have you given that an I')
2 exhibit number?
U 3
MR. SISK:
That should be marked for 4-identification as LILCO Exhibit 26, LILCO Discovery Exhibi':
5 Number 26.
6 JUDGE GLEASON:
It is so designated.
7 (The document referred to 8
was marked for identificacion 9
as LILCO Discovery Exhibit 10 Number 26. )
11 MR. SISK:
I will vouch for the record that this 12 document, too, was produced either Wednesday or we received 13 it either Wednesday or Thursday of last week from the State 14 of New ' fork.
O (j
15 BY MR. SISK:
16 Q
Mr. DeVito, do you recognize that document?
17 A
(DeVito) No, I do not.
Not this particular one.
18 Q
What do you mean by not this particular one?
19 A
(DeVito) Well, I recognize some of the forns 20 contained herein as part of a generalized communications 21 process for identifying frequencies and call signs and the 22 like, but I don't recall having seen the Suffolk County 23 version of it.
24 Q
Do personnel within your office, the State 25 Emergency Management Office, maintain documents of this type Heritage Reporting Corporation (202) 628-4888
,u 21265 1
for particular counties?
()
2 A
(DeVito) I have a communications and warning 3
section that contains a series of documents of this type.
4 Q
And who heads up your communications and warning 5
section?
6 A
(DeVito) A gentleman by the name of Bruce Houston.
7 Q
And do you know whether Mr. Houston was consulted 8
prior to the past couple of weeks to respond to document 9
requests in this proceeding?
10 A
(DeVito) You mean prior to the June 6th 11 conversation with counsel?
12 Q
Yes.
13 A
(DeVito) Not to my knowledge.
14 JUDGE GLEASON:
Mhat was the answer?
)
15 THE WITNESS:
(Deivito)
Not to my knowledge, Your 16 Honor.
17 JUDGE GLEASON:
Fas he one of those persons that 18 you -- by spreading the word of mouth context?
19 THE WITNESS:
(DeVito)
Yes, sir.
That was post 20 the conversation with counsel in which he indicated that 21 this discovery proceeding was ongoing and that we needed to 22 produce <:ertain documents and all the rest of that.
So, he 23 would have been one of those individuals te whom I had said 24 anything, whatever it is, let the lawyers sort it out.
25 BY MR. SISK:
Heritage Reporting Corporation
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Q Do you know, Mr. DeVito, whether this document was
()
2 produced from your agency's files?
3 A
(DeVito) I don't know specifically whether this 4
one was.
You say it was provided by the State, so, 5
therefore, my assumption would be that it was.
6 Q
And does Mr. Germano have any responsibility for 7
this type of document?
8 A
(DeVito) Only in the brcadest possible sense that 9
an administrative chief would get involved in that process.
10 Q
But this is a type of document that is maintained 11 by personnel within SEMO's files.
Is that correct?
12 A
(DeVito) Yes, as I recall it is.
13 Q
Now, if you will turn to -- the easiest way to 14 look up in the right-hand corner for the page number LOO 473.
(
15 On that page, there is something called Form G, "Emergency 16 Public Information System."
And it refers to Emergency 17 Broadcast System Stations.
It is under the heading in the 18 upper right-hand corner, "State of New York, Suffolk 19 County."
It identi42es under item (1) call sign, WCBS, New 20 York City, New York.
21 It has a column labeled "Area" which says, Nassau 22 EOC.
Can you tell me what that -- can you interpret what 23 that page means for me, Mr. DeVito?
24 A
(DeVito) Well, apparently, it's an identification 25 of the location and call signs of stations that are Heritage Reporting Corporation (202) 628-4888
W 21267 1
participating in that area in the Emergency Broadcast N
2 System, at least those that were back in October of 1978.
. (U 3
Q If you will turn to page LOO 477, Mr. DeVito, just 4
a few pages later, that's entitled, "Form H.
Radiological 5
Monitoring."- And that lists a reporting system, service 6
organization or KFMS.
Do you know, can you interpret what 7
that page means for me?
8 A
(DeVito) No, I can't.
9 0
Could that be a list of radiological monitoring 10 locations within Suffolk County?
11 MR. LANFHER:
I object.
It calls for speculation.
12 MR. ZAHNLEUTER:
I object.
13 MR. LANPHER:
He said he couldn't interpret it.
14 JUDGE GLEASON:
Well, you know, I not as afraid of
()
15 the answers in speculation as you attorneys are.
So, the 16 objection is denied 17 MR. ZAHNLEUTER:
The question isn't being afraid, 18 Judge Gleason, it is not probative evidence.
19 JUDGE GLEASON:
Well, concern about the probative 20 value of it.
Let's put it that way.
21 Please respond to the question.
22 THE WITNESS:
(DeVito)
I thought I had with all 23 due respect, Your Honor, I don't know.
24 MR. SISK:
Judge Gleason, I would like to offer 25 this in evidence, but I think in light of this witness's Heritage Reporting Corporation (202) 628-4888 O
L
21268.
1 inability to identify the specific document, it might be 7'T 2
easier if counsel for the State could make some proffer as V
3 to whether this was actually produced from SEMO's files.
4 JUDGE GLEASON:
Mr. Zahnleuter?
5 MR. ZAHNLEUTER:
I can stipulate that the State of 6
New York produced this document.
And I obtained it from the 7
SEMO group.
8 MR. SISK:
BecSars of the issues implicated by 9
this document, its very.
- 1. 5 production, I would move its 10 admission as being squarely within the scope of this 11 proceed:ng.
12 MR. ZARNLEUTER:
Well, I object.
T' *e are no 13 issues implicated by this documen3.
This doc,v ', was 14 produced and it doesn' t show any evidence of any kind
()
15 regarding production or non production of plans.
As a 16 matter of fact, Mr. Sisk's question'.ng went to the 17 substantive nature What does this page mean?
That as we 18 have been instructed to weight is a sign that this inquiry 19 does not relate to the scope of this proceeding.
He did not 20 go anywhere with his question.
So, this document is 21 irrelevant.
22 JUDGE GLEASON:
Do you intend to query Mr. Germano 23 concerning this document?
24 MR. SISK:
Yes, I do.
25 JUDGE GLEASON:
I suggest that you wait and raise Heritage Reporting Corporation (202) 628-4888 O
21269 this point.
j 2
MR. SISK:
Very well.
3 BY MR. SISK:
4 Q
Mr. DeVito, are you aware of any radiological 5
emergency response planning within Suffolk County for 6
radiological incidents at any nuclear power plant?
7 MR. LANPHER:
I object to the question as vague.
8 What does he mean by any radiological emergency response 9
planning?
I don't know what he means.
10 JUDGE GLEASON:
Do you know what he means, 11 Mr. DeVito?
12 THE WITNESS:
(DeVito)
I would asstwa that any 13 means of any type and my answee is I'm not aware.
14 BY MR. SISK:
3 15 Q
Are you aware of any radiological emergency J
16 response planning for Fisher's Island in New York?
17 A
(DeVito) No.
18 Q
Mr. DeVito, do you know whether any documents that 19 you have produced to counsel for the State of New York based 20 on the review by your agency were withheld from production 21 to LILCO?
22 MR. ZAHNLEUTER:
I can represent as counsel who 23 was responsible for document production --
24 JUDGE GLEASON:
Just a minute.
You are not a 25 witness here.
And do you want a response from the lawyer or Heritage Reporting Corporation (202) 628-4888
~3b l
ll'
21270 1
do you want it from the witness?
()
2 MR. SISK:
I would just like the witness to say if 3-he knows.
He may not know.
4 BY MR. SISK:
5 Q
But, to your knowledge, Mr. DeVito, do you know 6
whether all of the documents that you produced to 7
Mr. Zahnleuter were produced to LILCO?
Do you know?
8 A
(DeVito) No.
I would assume you would have to as 9
Mr. Zahnleuter.
10 Q
Did you have any discussions with anyone within 11 your office about whether a particular document should or 12 shouldn't be turned over to Mr. Zahnleuter?
13 A
(DeVito) I'll go back to what I said half a dozen-14 times, it seems.
My instructions were that anything that we
)
15 had that might be considered as germane to the issue of 16 emergency planning in Suffolk be provided to counsel.
And I 17 would prefer to err on the side of providing too much and 18 let you lawyers sort out what's appropriate and what's not.
19 Q
Sensible.
Did you make any inquiry of your 20 Poughkeepsie Southern District Office at that time?
21 MR. LANPHER:
I object to the question as vague.
22 What kind of inquiry is he talking about?
l 23 MR. SISK:
About production of documents.
24 THE WITNESS:
(DeVito)
No, not specifically.
I 25 conveyed that to my headquarters staff.
Heritage Reporting Corporatio.
l ()
(202) 628-4888 1
21271 1
MR. SISK:
Judge Gleason, I'm sorry it's taken 2
half the evening, but that's all I have.
,s(j 3
JUDGE GLEASON:
Any questions on the part of the 4
staff?
5 MS. YOUNG:
Just a handful.
6 JUDGE GLEASON:
Just a handful?
7 MS. YOUNG:
Yes.
8 JUDGE GLEASON:
Please proceed.
9 MR. SISK:
Is that the number of questions that 10 ascribes to or the difficulty of them?
11 CROSS-EXAMINATION 12 BY MS. YOUNG:
13 Q
Just a quick follow up on Mr. Sisk's last question 14 or last series of questions.
Did you or your staff prepare 15 a list of the documents that you turned over to counsel for 16 the State of New York production?
17 A
(DeVito) I believe there was a transmittal 18 memorandum that had a listing on it, but that's kind of hazy 19 in my mind at this juncture.
20 Q
You don't recall whether you or your staff 21 prepared a listing of the documents that you found 22 responsive to that --
23 A
(DeVito) I seem to recall a listing.
And if it 24 was in the transmittal document, that's where I'm getting a 25 little hazy.
But that sounds like a reasonable thing to do.
Heritage Reporting Corporatien (202) 628-4888
21272 1
And, hopefully, we had done that.
2 Q
Do you know whether you or your staff have 3
retained a list of the documents that you turned over --
4 A
(DeVito) In any transmittal that we would have 5
sent'out, I am sure we would have an office copy of that.
6 Q
Was Mr. Horton involved in the search for 7
documents that you directed in June?
8 A
(DeVito) I couldn't aay that he was specifically 9
because the direction went to his chief.
One would assume 10 that everybody within the planning section would have been 11 requested to provide the same information.
12 Q
I believe counsel for LILCO showed you LILCO 13 Discovery Exhibit 17, which was the government's response to 14 the court order of June 24, 1988.
Do you still have that in I')
15 front of you?
U 16 A
(DeVito) Would that be the one identified as 17 Docket 18 No. 50-322-OL-37 19 Q
Yes.
Can you turn to page 10 of the document?
20 Mr. Sisk asked you a series of questions about the 21 summary of what your testimony would be regarding the 22 board's inquiring concerning production of planning 23 documents.
Did you review this document before it was 24 served to the parties in this proceeding?
25 A
(DeVito) No.
This is the first time I've seen in.
Heritage Reporting Corporation (202) 628-4888 O
. ~. -
21273' 1
Q Thank.you.
Could you turn to LILCO Exhibit-15 O
2
.hich.as a letter-to william neagan from aerry. cordon dated 3
May 1st, 19817 podo.
4' A
(DeVito) You' re right.
These chairs are 5
uncomfortable.
E20 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 l-22 l
23 24 l
25 l
l i
Heritage Reporting Corporation f
(202) 628-4888 l
9
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21274
t21rct Q
I believe that Mr. Sisk asked you a series of
,,j '
2 questions which disclosed that at least Mr. Thornton who t
3 signed the letter had reviewed a version of the Suffolk 4
County advanced preparedness plan dated in January of 1981, 5
is that correct?
6 A
(DeVito)
That is what the letter says.
7 Q
And in response to a series of questions asked by 8
Mr. Sisk, you indicated that you were not aware of whether 9
SEMA or the predecessor agency had reviewed any Suffolk 10 County disaster plan?
l 11 A
(DeVito)
SEMA has not.
What I indicated was that i
12 prior to my tenure that I was not aware of any program to do 13 that.
And it would not surprise me one way or the other.
14 But I did not see that in looking back and attempting to
(
15 analyze what the emergency management programs in New York l
16 State were like in the past, and that there was any pattern 17 for doing that on a consistent basis.
18 Q
But does the information in this letter lead you 19 to conclude that such review was being done prior to l
20 SEMA?
21 A
(DeVito)
No.
What it leads me to conclude is 22 that in this instance that it was done.
It could have been l
23 strictly at the request of the county, and perhaps that is l
24 the way that the system worked in those days.
I really 25 could not tell you.
l l
l Heritage Reporting Corporation l
(~T (202) 628-4888 s/
i l
l I
t
21275 1
Q So the language in here that points to compliance
()
2
_with Article 2 (b), Section 3, the local disaster 3
preparedness plan, does not lead you to conclude that review 4
of such plans were routine at that time?
5 A
(DeVito)
Which section are you referring to, the 6
last paragraph?
7 Q
If you look at paragraph one and also the 8
concluding paragraph that starts "in general" on page two.
9 A
(DeVito)
I would not and did conclude from this 10 that it was a pro forma kind of a thing.
It was a 11 continuing effort for each and every county and state.
12 Q
If you could find Discovery Exhibit 19.
13 A
(DeVito)
Yes, ma'am.
14 Q
Do you know when this document was prepared?
()
15 A
(DeVito)
No, I do not.
16 Q
Do you have any idea what the designation at the 17 top PP-1 is?
13 A
(DeVito)
I was wondering the same thing when I 19 saw it.
I do not know.
20 Q
I hesitate to get into this area, as there will be 21 an objection from counsel for the state and county, but one 22 quick question.
23 Can you tell me in what period S'2ffolk County 24 received emergency management assistance funds?
25 A
(DeVito)
No.
Heritage Reporting Corporation
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Q To your knowledge, did they receive su funds 2
prior to May of 1988?
~(D
's' 3
A (DeVito)
Well, yes.
As I indicated to counsel's 4
questions earlier, I have been on board since April of 1982.
5 And as my memory serves me, they received emergency 6
management assistance funding that whole period.
7 MS. YOUNG:
That concludes the staff's questions.
8 JUDGE GLEASON:
Mr. Cummings.
9 MR. CUMMINGS:
I have a few questions, 10 Judge Gleason.
11 CROSS-EXAMINATION 12 BY MR. CUMMINGS:
13 Q
Mr. DeVito, are you familiar in your position with 14 Title 44 of the Code of Federal Regulations?
15 A
(DeVito)
That is the one that contains some of 16 the outlines with Public Law 93-2887 17 Q
Yes.
I am not asking you to be specifically 18 familiar.
Even I as a lawyer for the agency do not know it~
19 all.
I want to read several definitions.
It is in the 20 nature of determining exactly what you do in your position.
21 The first definition is from 44 CFP,205.212.
It is the 22 definition of the term governor's authorized representative.
23 "The governor's authorized representative means 24 the person named by the governor in the federal / state 25 agreement to execute on behalf of the state all necessary Heritage Reporting Corporation (202) 628-4888 GU
21277 1
1 documents for disaster assistance, and to evaluate and to
()
2 transmit local government eligible private and non-private 3
facility and state agency requests for assistance to the 4
regional director following a major disaster or emergency 5
declaration."
6 Have you ever been a governor's authorized 7
representative?
8 A
(DeVito)
Yes, I have.
9 Q
And are you typically the person who would in fact 10 sign as the governor's authorized representative, or would 11 it be some that you would designate?
12 MR. LANPHER:
I object to the question.
I do not 13 understand the relevance of this to this proceeding.
14 MR. CUMMINGS:
You are going to find out.
15 JUDGE GLEASON:
Well, let us proceed.
The 16 objection is denied.
Let us proceed and see where he is 17 going with it.
18 THE WITNESS:
(DeVito)
The question was?
19 BY MR. CUhMINGS:
20 Q
Are you typically the person that the governor 21 designates to act as the authorized representative?
22 A
(DeVito)
In the last several disasters, that has 23 been the case.
24 Q
How many presidential disasters have you 25 participated in as the governor's authorized representative?
Heritage Reporting Corporation
()
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A (DeVito)
Seven.
('l-2 Q
And what disaster plan or what state plan were you
.%J 3
using when you responded to those disasters if any?
4 A
(DeVito)
I guess that the best way to say that is 5
that the state disaster preparedness plan is a guide, and 6
each event that occurs carries with it its own set of 7
circumstances.
And based on those circumstances and the 8
availability of personnel, and resource availability, and 9
the location of the disaster, and there are entire litany of 10 things that could probably be counted, that would determine 11 the specific course of action.
The pla as themselves do not 12 contain that level of specificity.
13 0
You are saying that you did not respond under a 14 specific plan, but basically made an ad hoc determination
/~N
(,)
15 that it was appropriate?
16 A
(DeVito)
What I am saying is that the plan that 17 you referred to as the state disaster preparedness plan is a 18 guidance document.
It is not a document that contains 19 within it an entire litany of specific actions to be taken 20 by specif4~ organizations.
Rather what it does is it 21 outlines general areas of responsibilities for the member 22 agencies of the Disaster Preparedness Commission.
23 And within that context then, we would respond l
24 based upon the particular needs at the time, and the 25 particular direction that we might receive from the governor l
l Heritage Reporting Corporation
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21279 1
or his agent.
()
2 Q
So within the broad outlines of the plan, given 3
that it does not have the level of specificity that would go 4
down to the ultimate nth degree, you did respond in 5
accordance with your plan, is that your statement?
6 A
(DeVito)
We clearly responded, yes.
7 JUDGE GLEASON:
Did he answer your question?
We 8
know that you responded.
Did you respond according to your 9
plan?
10 THE WITNESS:
(DeVito)
In accordance with the 11 general guidance that is contained within the plan; yes, 12 sir.
13 BY MR. CUMMINGS:
14 Q
And you have authority or your designee has r^g
(,/
15 authority to deviate from that plan, is that correct?
16 A
(DeVito)
Well, one of the fundamental axioms of 17 a~ rgency management is that Murphy was an optimist.
And if op, rating within that context then, there is always an ad aoc response to many situations.
20 Q
With respect to another definition, this is for 21 Part 300, Section 302 (c) of Title 44, "State disaster 22 preparedness coordinator means the person designated by the 23 governor or by state law as responsible for overall disaster 24 preparedness program coordination or management."
25 Are you that person designed by the governor, Heritage Reporting Corporation
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21280 1
either by the governor, or in some sort of written order, or
(~)
2 by law?
)
s_
3 A
(DeVitc)
No, not specifically designated by 1
4 written order or by law.
But within the context of the 5
definition that you have just provided, as I understand it, 6
and again I am trying to interpret what you are saying, I 7
would be that person as the director of the office.
But in 8
any given disaster by state procedure, a state coordinating 9
officer could be designated as someone else, who would then 10 become the responsible agent for the governor and the 11 Disaster Preparedness Commission in that particular 12 disaster.
13 Q
Well, as background, Part 300 deals with disaster 14 preparedness assistance for basically plans.
The passage of
()
15 the Disaster Relief Act of 1974 provided an initial grant,
.6 as you stated in your testimony, an annual $25,000 update 17 each year for the disaster preparedness plan.
In that plan, 18 it calls fer a state disaster preparedness coordinator.
19 Does your current plan call for the director of 20 SEMA to be that coordinator?
21 MR. ZAHNLEUTER:
I object.
Counsel is testifying, 22 and that is not even a question.
23 MR. CUMMINGS:
I believe it is, Judge Gleason.
I 24 am asking about the state plan, and he is the state 25 coordinator.
Heritage Reporting Corporation
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JUDGE GLEASON:
The objection is denied.
Answer
-()
2 the question, please.
3 THE WITNESS:
(DeVito)
Again by way of background 4
to' illustrate the system.
When the governor declarea a 5
state of disaster emergency in the state, which is as you 6
know counsel is generally required before the federal 7
government will entertain a request for presidential 8
assistance under Public Law 92-288, at that juncture on 9
declaration of a state of disaster emergency, a state 10 coordinating officer is appointed or designated.
That may 11 be me, and that mTy be somebody else, depending upon the 12 nature of the disaster.
13 Now on some seven occasions, gubernatorial 14 declared disasters that subsequently became presidential (n_)
15 disaster declarations, I was so designated.
On the other 16 hand, in a couple of other disasters that were very issue 17 specific, such as drought and such as coastal erosion, other 18 individuals were designated at the state coordinating 19 officer.
20 BY MR. CUMMINGS:
21 Q
That answer goes to the first term that I was 22 dealing with.
23 What I am really asking now is under the disaster 24 preparedness plan who is charged by the cocernor in some 25 sort of written order with keeping it updated and current, Heritage Reporting Corporation
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ti 21282 1
is that you?
1
()
2 A
(DeVito)
That is my office, yes.
And as its 3
director, I would be resjonsible for that.
4 Q
The next section of the regulation that I am going 5
to read to you is from Part 302, Title 44, Section 6
302.3 (b) (2).
"Each sub grantee jurisdiction shall have a 7
local EOP," that stands for emergency operations plan, 8
"which conforms with the requirements for plan content as 9
set forth in CPG 1-3, and CPG 1-8, and CPG-1-8 (a), which has 10 beer improved by the local chief executive or authorized 11 official and accepted by the governor or other authorized 12 state official as being consistent with the state's EOP."
13 Are you the authorized state official who would 14 accept those local emergency operation plans?
()
15 A
(DeVito)
I think that ties to what we have l
16 talking about in this whole process.
That the EMA 17 jurisdiction, the racipient jurisdictions, would develop 18 plans as part of the basis for them receiving the funding.
19 That process is coordinated through my population protection 20 planning section, which is commonly referred here as tne 21 planning section.
And one of the responsibilities that we l
22 have is to that cross-walk in CPG 1-8 (a).
l 23 And I believe that ties to what you are 24 referencing there.
Although without the specific language l
25 in front of me, maybe I am getting a little bit afield.
But i
Heritage Reporting Corporation (202) 628-4888 l
l
~
,l 21283 1
I believe that is tbc fccus of what you are driving at.
And
['j) 2 that would be that particular office.
r 3
0 And in your position, you would be expected to be 4
familiar with the federal regulations?
5 A
(DeVito)
Insofar as any executive can be familiar 6
with the host of federal regulations that seem to govern 7
everything that we do.
8 Q
Is your position funded in part by the federal 9
government?
10 A
(DeVito)
Yes, it is.
11 Q
And is Mr. Germano' s ' ?
12 A
No, it is not.
13 MR. CUMMINGS:
Thank you.
I have no further 14 questions.
(~j\\
g_
15 JUDGE GLEASON:
Mr. Zahnleuter.
16 MR. LAMPHER:
Can I go first?
17 JUDGE GLEASON:
Yes.
Choose among yourselves. I 18 sometimes identify you as being together, but I am 19 constantly reminded that you are not.
So since it is the 20 state's witness, I have to defer to him.
21 Va. LANPHER:
Just a couple of questions.
22 MR. ZAHNLEUTER:
Excuse me.
Before we do this, I 23 am not sure.
That by allowing Mr. Lanpher to ask questions, 24 I am not allowing myself to ask questions?
I want to make a 25 note that I do have a few questions for Mr. DeVito.
Heritage Reporting Corporation
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JUDGE GLEASON:
We need to have this night wind 2
up.
We'were not inclined to exclude you because he is going
(~j v
3 first.
4 MR. ZARNLEUTER:
Okay, thank you.
5 CROSS-EXAMINATION 6
BY MR. LANPHER:
7 Q
Mr. DeVito, following up just on the last question 8
from Mr. Cummings.
And I do not have the language of the 9
regulation, but my recollection is that there was some talk 10 of some state official accepting, I believe that it was the 11 word accept was used in the regulation, accepting a county 12 plan.
13 Do you recall that language in the regulation?
14 A
(DeVito)
Not from the regulation, but from Mr.
()
15 Cummings' recitation of it.
16 MR. LANPHER:
Was that a fair sumn.ary, 17 Mr. Cummings?
18 MR. CUMMINGS:
I believe that the word is accept.
19 MR. LANPHER:
Okay.
20-BY MR. LANPHER:
21 Q
Have you accepted, has SEMA accepted the Suffolk 22 County emergency operation plan?
23 A
(DeVito)
Not at this time.
24 0
You mentioned that you have been in charge of 25 seven disasters where the president has declared them to be Heritage Reporting Corporation
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1 21285 1
disasters, is that correct?
(~)')
-2 A
(DeVito) That is correct.
3 Q
Were any of those nuclear power plant accidents?
4 A
(DeVito) None of them.
5 Q
Earlier you were shown Exhibit 15.
That is the 6
letter from Mr. Thornton to Mr. Regan.
And you were asked 7
questions concerning testimony that you gave on 8
April 29 in your deposition where you stated at page 7 of 9
that deposition that you did not know whether any such 10 document, and going back, included a Suffolk County disaster 11 plan exists.
12 Do you recall that deposition testimony?
13 A
(DeVito)
I saw it a moment ago; yes, sir.
And at the time that ou gave that deposition 14 Q
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15 testimony, that was truthful, correct?
16 A
(DeVito) That is still truthful.
17 Q
Did they show you during that deposition Discovery 18 Exhibit 15 for identification dated May 1, 19817 19 A
The Thornton to Mr. Regan?
20 Q
Yes.
21 A
No, sir.
22 Q
I believe that the record will show that Mr. Sisk 23 stated before he asked questions that that letter was 24 provided by Suffolk County discovery in 1982 or 1983.
25 A
(DeVito)
That is correct.
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Q So it was in their possession.
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2 A final question.
Early in Judge Gleason's 3
questioning of you, there was a question about your 4
relationship with the DPC.
5 Is it not true that on a day to day basis that the 6
Disaster Preparedness Commission really has no functien, 7
that they just meet once of twice a year?
8 A
(DeVito)
They meet twice a year.
And the 9
membership of the Disaster Preparedness Commission consists 10 of the heads of some seventeen state agencies.
- Clearly, 11 those men and women have other things to occupy their daily 12 responsibilities both statutorily and fiscally.
And the 13 Commission's concerns only come to their attention 14 periodically.
A
(,/
15 Q
Is it fair to state then that the DPC deals almost 16 exclusively with policy issues that are brought to its 17 attention either by you or by the field?
18 A
(DeVito) I am not a lawyer, so interpreting the 19 law is kind of difficult.
But in my reading of it, that is 20 what I see, that they are a policy body, and not a working 21 group on a daily basis.
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JUDGE GLEASON:
Doesn't the executive law and the
(';]
executive emergency laws spell out the responsibilities of 2
s 3
the Disaster Commission?
4 MR. LANFRER:
It spells out a number of policy-5 orientations, as I read it.
~6 JUDGE GLEASON:
Well, now, wait -- it doesn't talk 7
policy; it talks about responsibilities, doesn't it?
And 8
doesn't it lay those responsibilities on the shoulders of 9
the Disaster Preparedness suppression?
10 I'm trying to visualize in my mind's eye the 11 specific charges contained therein, and if I can, I'd rather 12 refer to it a little, when that.
13 JUDGE GLEASON:
Then have it referred to.
14 MR. SISK:
I have a copy of it right here.
(+)
15 MR. LANPHER:
I think it's in some of these 16 documents here.
17 MR. SISK:
I only have one and it is marked up.
18 There are a number of charges here that are part and parcel 19 of the kinds of services that my office provides on behalf 20 of the Commission, so that the Commission membership, par 21 ag, is not involved in these activities, except as a follow 22 on to efforts that I or other working groups operating on 23 behalf of the Commission may undertake.
24 JUDGE GLEASON:
All that does is tell me the way 25 you're operating.
It doesn't tell me what that loss is.
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And my question was, was it the law itself that places
/n) 2 responsibility on the Commission.
%)
3 MR. LANPHER:
Then I object to the question 4
because you're asking for a legal interpretation and I don't 5
think that's an appropriate question.
6 JUDGE GLEASON:
You're the one who pursued this 7
area.
8 MR. LANPHER:
No, I asked a specific question 9
regarding the DPC acts on a day-to-day basis; whether it 10 acts at all.
11 JUDGE GLEASON:
As opposed to the Commission.
12 MR. LANPHER:
That's the same thing.
DPC and the 13 Commission are the same thing, Judge.
14 JUDGE GLEASON:
All right, they're the same thing
/(,)
15 and you don't have to remind me that they're the same thing; 16 and I was just following up as to what the actual 17 responsibilities were.
Because as we started out this 18 discussion, as I indicated, it appeared from the kind of 19 questions that Mr. Zahnleuter was asking and the responses 20 that Dr. Xera was a kind of a supernumerary.
He was just 21 there; and after all, you presented him as one of your 22 witnesses in the realism issues.
So I presume he's a man of 23 some substances; and I assume he's a man of some 24 responsibilities..
25 MR. LANPHER:
I just have a responsibility to Heritage Reporting Corporation (202) 628-4888
21289 1
speak on the Governor's behalf, that's right.
D 2
JUDGE GLEASON:
All right, the law says what it
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says.
l 4
Anyway, let's go on because I think we all know 5
what the rule is.
Ask your questions, Mr. Zahnleuter; it's 6
getting late.
7 MR. ZAHNLEUTER:
Mr. DeVito, interrogatory 120 8
from Local's second set of interrogatories of March 24, 9
says, "please provide a copy of any and all existing plans 10 and procedures for responding to emergencies whether 11 radiological or non-radiological affecting Suffolk County, 12 including but not limited to chemical spills; fires; 13 hurricanes, explosions, and earthquakes.
Please include any 14 and all plans for dealing with accidents involving shipments r^3()
15 of radiological materials of Brookhaven National Lab, the 16 Shoreham Nuclear Power Stations, hospitals and other medical 17 and industrial facilities."
18 Do you recall in the course of your document 19 production and search ever having this interrogatory read to 20 you or provided to you by way of a copy?
21 THE WITNESS:
You conveyed it initially to me 22 through a phone call that I don't remember the precise 23 timing of that phone call, whether it was at the same time 24 that it was -- it may have been at the same time, June 6, 25 that you asked me about the Suffolk County plan issue.
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But in any event, I remember a phone conversation N
2 initially; and then subsequently at some later date, having
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3 seen correspondence that recounted all of those things.
And
- I 4
that was the basis of my telling the staff to come.up with I
5 anything and everything; I didn't care what it was, to 6
provide for discovery purposes.
7 MR. ZAHNLEUTER:
I proffer that responsive 8
documents that SEMA produced were produced to LOCO.
I have 9
no questions.
10 JUDGE GLEASON:
All right.
We're going to start a 11 little bit later tomorrow, about 9:30; and we want hopefully 12 to have a response back on Mr. Shepherd by tomorrow, and we 13 thank you for your testimony.
14 THE WITNESS: (Devito)
I thank you for your
(
15 courtesy, Your Honor.
16 (Whereupon, at 9:09 p.m.,
the hearing was 17 recessed, to reconvene Tuesday, July 12, 1988, at 9:30 a.m.)
18 19 20 21 22 l
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1 CERTIFICATE 2
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3 This is to certify that the' attached proceedings before the 4
United States Nuclear Regulatory Commission in the matter of:
5-
.Name: Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1) 6 7
Docket Number: 50-322-OL-3 8
Place: Bethesda, Maryland 9
Date: July 11, 1988 10 were held as herein appears, and that this is the original 11 transcript thereof for the file of the United States Nuclear 12 Regulatory Commission taken stenographically by me and, 13 thereafter reduced to typewriting by me or under the direction 14 of the court reporting company, and that the transcript is a 15 true and accurate rd of h
o oing proceedings.
16
/S
/
4 l
17 (signature typed):
Daniel W. Skidmore 18 Official Reporter 19 Heritage Reporting Corporation 20 21 l
22 23 24 i
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