ML20151G847

Lilco Suppl to 880615 Brief on Discovery Sanctions in Light of Subsequent Developments.* Board Should Reaffirm Dismissal of Realism/Best Efforts Contentions

ML20151G847
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/26/1988
From:	Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#388-6812 OL-3, NUDOCS 8807290258
Download: ML20151G847 (132)

Text

e -. m ~ . , _ . , . , , , , , _ . .__ _ _ _ _ .

6ML ^

l'0LKETED USHHC 18 JL 28 A9:51 FFict S Hv.t l At r CKillhG' SEF M I.

UNITED STATES OF AMERIC BRANCH t NUCLEAR REGULATORY COMMISSION

_Before the Atomic Safew and Licensing Board i

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuc1 car Power Station, )

Unit 1) )

LILCO'S SUPPLEMENT TO ITS JUNE 15 BRIEF ON DISCOVERY SANCTIONS IN LIGHT OF SUBSEQUENT DEVELOPMENTS Hunton & Williams 707 East Main Stmet ,

P.O. Box 1535  !

Richmond, Virginia 23212 l

i July 26,1988 I

l t

h i

' ~ ~ ~ ~

8807290258 880726 gDR ADOCK 05000322 PDR j p 5 03 l

UNITED STATES OF AMERICA NUCLEAR REGliLATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of ) -

) .

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

l LILCO'S SUPPLEMENT TO ITS JUNE 15 BRIEF ON DISCOVERY SANCTIONS IN LIGHT OF SUBSEQUENT DEVELOPMENTS Hunton & Williams 707 East Main Street ,

P.O. Box 1535 I Richmond, Virginia 23212 I July 26,1988

TABLE OF CONTENTS I. Introduction............................................ 1 II. Argument........................-...................... 4

1. Intervenors Have Unwarrantedly Resisted and Complicated Recent Discovery in this Proceeding ...... 4

2. Intervenors Have Frustrated Discovery Throughout this Proceeding by Misconstruction of Issues and Deflection of Legitimate Inquiry........ 7

3. Suffolk County Has Systematically Tnwarted Legitimate Discovery Throughout This Proceeding...... 11 A. County Discovery Abuses Have not Been Limited to Nonproduction of the Emergency Operations , Plan.. 11 I

B. The Suffolk County Emergency Operations Plan Was Never Produced to LILCO Before '

May 1988........................................ 12

4. New York State Has Systematically Thwarted Legitimate Discovery Throughout This Proceeding...... 33 A. The State Knew of, but Failed to Disclose Existence of, the Suffolk County Emergency Operations Plan................................. 33 B. The State Failed to Disclose, or Attempted to Explain Away, State Resources Capable of Being Deployed for Emergency Planning and Response at Shoreham............................ 38 C. The State Failed to Disclose, or Mischar- l acterized, Information that was Inconsistent w!:.n the State's Position....................... 41 D. The State Obstructed Discovery Procedurally.. 43 E. The State's Policy on Shoreham Includes Preventing Emergency Planning in Compliance with Federal Health and Safety Standards........ 48

5. Intervenors' Course of Conduct on Discovery has Been Sufficiently Pervasive, Systematic and Serious to Warrant Dismissing their Realism Contentions on the Merits, and Even Dismissing them as Parties to this Proceeding........................................... 50 Conclusion................................................ 56

LILCO, July 26,1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

. )

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S SUPPLEMENT TO ITS JUNE '15 BRIEF ON DISCOVERY SANCTIONS IN LIGHT OF SUBSEQUENT DEVELOPMENTS I. INTRODUCTION On July 19, at the end of four days of hearings, the Board requested the parties to supplement their June 15 pleadings on the appropriate sanctions to be invoked against Intervenors on the issue of abuse of the discovery process in this proceeding.

The Presiding Officer stated:

The board would request the parties to submit by July 26th, close of business July 26th, any additions to their prior fil-ings which were dated June 15th relating to the proposed sanctions. Any submittals should be based on the record of these proceedings and relate solely to the issue of abuses concerning the discovery process.

(Tr. 22074 (Gleason, J.))

LILCO submits this brief in response to the Board's Order.

As of June 15, the County had only recently disclosed the existence of its basic emergency planning resource document, the Suffolk County Emergency Operations Plan (SCEOP). Intervenors had also refused to permit furtter discovery despite repeated Board orders. On June 10, the Board had indicated its intent (Tr. 20862) to dismiss the i

Intervenors' realism /best-efforts contentions as a sanction for their refusals to comply with Board discovery orders, and, out of concern that the integrity of the proceeding

might have been jeopardized by those refusals, requested the parties' views by June 15 on further discovery sanctions and proceedings.

In its June 15 paper LILCO, af ter outlining the recent history of discovery in this proceeding, supported the Board's determination to dismiss Intervenors' realism /best-efforts contentions. LILCO's arguments were premised both on the merits and on a sanction theory for Intervenors' systematic failure, already apparent, to comply with normal and even Board-ordered discovery.M During the month since, this pattern of resistance by Intervenors to discovery has continued, in a complex series of events requiring the Board to convene virtually weekly teleconferences, issue numerous orders and subpoenas, and finally convene four days of hearings which were in essence Board-superv! sed depositions.

Against the further background of these events and the information developed in them, LILCO believes that the Board's determination to dismiss the realism /best-efforts issues remains correct, and urges the Board to finalize that dismissal for the reasons outlined in LILCO's June 15 pleading, as amplified (on the sanctions front) by the events of the past month.

LILCO also urges the Board to dismiss Intervenors from this entire proceeding  !

l for long-standing and continuous violations of basic good-f aith discovery norms. The events of the past month have required repeated motions, conferences and Board or-ders, and ultimately four days of the Board's and parties' time in hearings. The infor-1 mation developed during the past month, and the process required to elicit it, have also illuminated a systematic pattern of withholding information and deflecting inquiry over the course of this entire six-year proceeding. These matters, too recurrent to be char-acterized as inadvertence or exception, are ample against this background under NRC l 1/ LILCO's Brief on the Appropriate Remedy for the Intervenors' Failure to Comply with Board Orders, June 15,1988.

l i

and federal court decisions to justify the severe discretionary sanction of dismissal of Intervenors from this entire preceeding.2 This brief will proceed in five parts:

1. a distillation of recent events 'primarily since June 15) involving discovery in this proceeding:

2. an analysis of the historical pattern of Intervenors' re-sponses to dLicovery in this proceeding since 1982:

3. a listing and categorical analysis of specific discovery-related abuses by Suffolk County in this proceeding:

4. a listing and categorical analysis of specific discovery-related abuses by New York State in this proceeding: and

5. an analysis of the sanctions appropriate for the abuses described.

Attached to this brief will be five appendices:

1. a witness list from the hearings of July 11-19;

2. an exhibit list from the hearings of July 11-19;

3. an itemization of Suffolk County discovery abuses;

4. an itemization of New York State discovery abuses; and

5. a comparison of the nine fragments of the Suffolk County Emergency Operations Plan received by LILCO over the 1982-83 period with the updated composite document re-ceived by LILCO from Suffolk County counsel on July 9 (LILCO Disc. Ex.10).

I 2/ On June 23, LILCO had urged the Board to consider dismissing Intervenors for the discovery abuses understood as of that time. LILCO's Response to Intervenors' Mo-tion to Vacate (June 23,1988), at 22-23. The Board, f aced in a teleconference the next day with a new proposal from Intervenors presenting various witnesses (whom they had hitherto refused to produce) for Board questioning - found itself "not ready at the present time to make a decision on" LILCO's June 23 request. Tr.20923. LILCO be-lieves that the events of the four weeks since merely substantiate and strengthen the  ;

correctness of LILCO's June 23 request.  ;

_ _ _ _ _ _ _ _ ___ _ - ^ - - - - - - - - - - - - - - ' - - - - - - - - - - - - ' - ~ - - - " - - - - - - - - - - -

D. ARGUMENT

1. Intervenors Have Unwarrantedly Resisted and Comolicated Recent Discovery in This Proceeding The immediate posture of this prcceeding involves three distinct, though related, sets of circumstances and events:

1. Intervenors' continuing refusal to accept this Board's orders of February 29 and April 8,1988, applying the Commission's "realism" rule,10 C.F.R.

S 50.47(c)(1). 52 Fed. Reg. 42,078 (1987). Those orders, applying the realism doctrine, converted Intervenors' "legal authority" contentions into ones which presumed best-efforts response by Suffolk County and New York State to a radiological emergency at Shoreham, and imtituted discovery to explore the nature of that response.  ;

Intervenors' response to those orders, embodied first in an April 13.1988 "Objec-tion" which attached affidavits by officials from the County (Mr. Halpin) and State (Dr. Axelrod), involved the blanket assertions that they would not p;an to respond to a radiological emergency at Shoreham; that they would not authorize LILCO to imple-ment plans for such a response; that in the event of an emergency, they would not co-operate in any plan prepared by any entity other than themselves; and that, in the ab-sence of such a "site-specific" governmental response plan for Shoreham, they could not identify, or "speculate" as to, any governmental resources that might be used to re-spond to an emergency at Shoreham.

L!LCO's unsuccessful efforts to obtain that discoveryU led to the May it prehearing conference, at which the Board ordered Intervenors to answer LILCO'.e out-standing interrogatories, to make .milable certain persons noticed by LILCO for 3/ These are documented in LILCO's "Response to Government's Objection to Por-tions of February 29 and April 8 Orders in the Realism Remand and Offer of Proof."

(April 22,1988) and in LILCO's "Supplement to LILCO's Response to Governments' April 13 Objections . . ." (May 2,1988),

t

5 deposition, and to produce all plans and planning materials for non-nuclear as well as radiological emergencies, within their possession. Tr. 19381-82. Intervenors' continued f ailure to comply in a timely fashion with this order, culminating in their June 9 "No-tice" to the Board that its interpretation of the realism rule had "precluded continua-tion" of this proceeding,W led to the Board's preliminary decision in a teleconference that day to resolve the realism /best-efforts issues adversely to Intervenors as a sanc-tion. Tr. 20862. In that same teleconference the Board also solicited the parties' views on its proposed sanction, Id. Those views are the June 15 pleadings which this brief supplerwnts. -

2. Suffolk County's production for the first time on May 25 (and again, in a l current form, on Jdy 9) of a composite document over 750 pages in length entitled the "Suffolk County Emergency Cyrations Plan" (SCEOP), without any explanation why it had neve? been produced ear!!er. Evidenco developed in four days of hearings held be-tween July 11-19 confirmed various matters alt aady apparent on the f ace of the docu-ment and extrinsic records: that the basic structure and creation of the SCEOP origi-nate with New York State, with multiple county-specific annexes and appendices; that one of its constituent parts, the Suffolk County Disaster Preparedness Plan (SCEOP Annex A Appendix 9), has existed since at least 1981, and the compos;te SCEOP has ex-isted in approximately its current form and size since at least 1982 or 1983, when dis- l i

covery in this proceeding begant that New York State officials knew of the SCEOP, which was tied to receipt of federal funding; that Suffolk County officials believed that

~

they had provided the SCEOP to their outside attorne"s in discovery in 1982 and 1983 in this proceeding; and that LILCO never received the composite SCEOP in formal discov-ery, indeed only received, in toto, about one-fitth of it in 8 or 9 unconnected fragments

, 4/ "Governments' Notice that the Board has Precluded Continuation of the 1

CLI-86-13 Remand," June 9,1988.

l

6-in 1982 and 1983.E A last-minute attempt was made by Suffolk County to impute ,

knowledge or possession of the SCEOP (admittedly outside formal discovery) to LILCO.

While that attempt is irrelevant to the question whether the document should have been produced in formal discovery, the County never established anything beyond what LILCO &dmitted: that a LILCO employee, Norman Kelly, had received the "basic ts ;n-ty plan *'(apparently the 1981 Disaster Preparedness Plan) from a County acquaintance.

Richard Jones, probably some time in the 1965-86 time frame.

3. Intervenors' continued foot-dragging on discovery even following the Board's May 10 and June 10 orders, involving refusals to produce witnesses for depost-tion notwithstanding Board orders and subpoenas, delays in answers to outstanding in-terrogatories, and production to LILCO of a substantial portion of Intervenors' relevant documents literally only on the eve of hearings (July 6 and 7 by New York State, July 7 and 9 by Suffolk County)(these are dates of receipt by LILCO/Hunton & Williams). This course of conduct, which had precipitated the Board's retention of jurisdiction on June 10 over issues relating to frustration of discovery and its potential effect on the integrity of the proceeding, required further orders and teleconferences on June 17,24 and 29, and culminated its four days of Board-supervised depcsitions of 12 witnesses on July 11,12,14 and 19. These proceedings confirmed or revealed the existence of nu-  ;

merous classes of documents relevant to emergency planning which had not been  !

l turncd over previously, and revealed a well coordinated effort by Suffolk County and New York State to apply different standards to Shoreham than to other nuclear power plans in New York State. They also revealed a consistently evasive attitude on the part of expert state and county witnesses on matters within their spheres of expertise, and a i

g/ One of these, the County Disaster Preparedness Plan, is a 54-page document (plus attachments), of ten referred to as the "basic county plan " Tr.21317 (R. Jones),

21548 (Kelly).

continuation of the obstructionist tactics by County and State attorneys that had char-acterized earlier discovery.

2. Intervenors Have Frustrated Discovery Throughout This Proceeding by Misconstruction of Issues and Deflection of Leritimate Inouiry A. Summary

,The past few weeks merely illuminate what has come to be a consistent ap-proach to this proceeding taken by Intervenors through their counsel ever since its in-ception in 1982: first, respond to discovery only in terms of the issues as they define them, whether or not that definition coincided with that of the Board; and second, even within that strained framework, resist or divert disclosure of anything important unless tne sanction for refusal is pereelved to outweigh the harm from disclosure. As the record now indicates, this approach led Suffolk County, for example, to withhold its ,

composite Emergency Operations Plan (LILCO Disc. Exs. 9,10) and abstain from even mentioning its name on this record for six years, until May 24,1988. It led th: Ccunty to avoid disclosure in this proceeding of other County documents, such as the County a

Resource Manual (produced only on July 9) (LILCO Disc. Ex.13), It led the County to withhold from this proceeding important County personnel and resources ranging from f

the Division of Emergency Preparedness to the Planning Department to the Health De-partment, despite their responsibility, actual knowledge or involvement in fact in emergency planning for Shoreham. It led to repeated objection to all kinds of discov-l ery.

This approach led New York State, with its "vary careful" observance of the Governor's policy against Shoreham (Tr. 22066 (Davidoff)), to characterize documents, )

l

such as the State Disaster Preparedness Plan (LILCO Disc. Ex.1), the State Radiologica!

Emergency Preparedness Plan (LILCO Disc. Ex. 6), and its 1987 Guidance on Ingestion Exposure Pathway (LILCO Disc. Ex. 5), that t.re plainly as adaptable to Shoreham as to l

, any other plant, as inapplicable, it led to the withholding of knowledgeable (and I j

l 4

1

potentially favorable) REPG personnel from further evaluation of the Shoreham Plan af ter political positions had shif red in early 1903, and to the nondisclosure of the major role played by SEMO in radiological response in New York State. It led to repeated ob-jection to all kinds of discovery.

B. Intervenors' Stratery and its Evaluation The Intervenors' objective throughout this proceeding has been, and remains, to l prevent the NRC from issuing an operating license for Shoreham, professedly oecause they have concluded that emergency planning adequate to protect public health and safety is impossible for Shoreham. Tr. 21697-703 (Axelrod): Axelrod Dep. Tr. 30-32, ,

65-70, 96-97; Direct Testimony of Patrick G. Halpin on Behalf of Suffolk County (April 13,1988) (Attachment 1 to the "Governments' Objection" dated April 13, 1988).

They have pursued this objective by five principal means:

1. Refusing to engage in emergency planning for Shoreham.

2. Attempting to demonstrate that the planning standards of 10 C.F.R.

S 50.47 have not been or cannot be met.

3. Concealing or mischaracterizing facts, plans, documents and policies that show that applicable emergency planning standards have been or can be met.

4. Purposefully obstructing LILCO from meeting applicable emergency plan-ning standards.

5. Delaying the ilcensing proceedings by all means possible, including each of j the above, i

Intervenors have used each of these means in varying degrees throughout the course of this proceeding, since at least 1983. The first two means are within their lawful rights under federal law.SI As those means have progressively failed the 4 g/ The first means, however, is flatly contrary to state law under Article 2B of the New York Executive Law. That statute, as the recent hearings confirmed, requires a State disaster plan for dealing with, inter alla, radiological accidents at nuclear plants (sections 23, 20(2)(a)), see Tr. 21610-611, 21637-647 (Axelrod), and requires any county i (footnote continued)

Intervenors, however, they have relied increasingly on the third, fourth and fitth means, which are plainly illegitimate.

The third, fourth and fitth means have been manifested in the Intervenors' abuse of the discovery process within recent months. These abuses are summarized below, get sections 3, 4 infra, and Attachments 3 & 4 to this brief. Three of the more note-wor' thy examples by which Intervenors have concealed f acts and obstructed LILCO from showing that it can meet the NRC's standards are (1) the Intervenors' f ailure to reveal the existence or details of the SCEOP, in order to orevent LILCO from showing

~

that its Plan can be successfully interf aced with a gow crantal emergency response:

(2) the Intervenors' ref usals to "speculate" as to any gown:nental resources that might be used to respond to an emergency at Shoreham; and (3) the State's deliberate discon-nection of the RECS lines between Shoreham and the State, on the advice of counse? 5 order to argue in this proceeding that planning standards were not me!, cespite %

DPC Chairman's recommendation that they be reconnected in 1985. Tr. 21710-718 (Axelrod): LILCO Discovery Ex. 41 (admitted Tr. 21718).

The core of the Intervenors' position throughout this proceeding, which has man-ifested itself in recent discovery abuse, is quite simple. And it has remained constant since at least 1983. It is that the Intervenors have tried to preempt the NRC by arrogating to themselves the authority to make the binding determination as to whether emergency planning at Shoreham can adequately protect public health and safety. This core position has progressed through several incarnations since 1983, and it is the key to understanding the discovery abuse of the past several months.

(footnote continued) l

^

plans submitted under that statute (section 23) to do the same, see Tr. 21654-656 (Axelrod). Such plans must, among other things, identify the resources, public and pri-l vate, available for emergency response and provide for their coordination. Jd. N.Y.

Exec. Law S22,23.

4 1

The first incarnation of the Intervenors' claim of preemptive authority over the NRC appeared early in 1983. The County moved to terminate the Shoreham licensing proceeding because the County had determined that emergency planning adequate to protect public health and safety was impossible for Shoreham and, thus, that the Coun-ty would adopt no plan for Shoreham. The Board correctly ruled that it would proceed to evaluate the LILCO Plan.

The second incarnation was the Intervenors' contentions, and ensuing lawsuit in New York state court, that LILCO lacked the "legal authority" to implement its plan; that Intervenors, based on their judgments about radiological safety, would not adept a plan; and thus, again, that their judgments as to radiological safety prevented the NRC from issuing an operating license for Shoreham. This incarnation stalled the liceeng proceeding for years and spawned extensive litigation outside the NRC. It was finally overcome by Gie NRC's remand in CLI-86-13 based on the realism doctrine (that the 5cate and County would in f act respond to an emergency at Shoreham), the NRC's real-ism rule (that state and local governments will respond using best efforts, and will fol-low the utility plan unless they proffer plans of their own or identify the resources and timing thny would use for an emergency response), and the New York Court of Appeals' reversing and vacating of lower court rulings adverse to LILCO on its "legal autht;rity" to implement its plan.

The third incarnation of the Intervenors' claims of preemptive authority over the NRC was their repeated statements that they would not, under any circumstances, implement the LILCO plan or coordinate with LILCO in responding to an emergency.

They claimed that they had so decided definitively, and that neither the NRC nor any-one else could questi" or second guess their decision. This was stated repeatedly and became the sine cua hun of their position in this remand proceeding.

i When the Board rejected this positiot, in its rulings of February 29 and April 8, 1988, yet another incarnation was born. The Intervenors asserted that, because they had no "site-specific" plan for Shoreham, they could not and would not "speculate" as to whether any State or County resources might be available to respond to a Shoreham emergency. S_eg, gl, Governments' Objection and Offer of Proof, dated April 13,1988:

G'overnments' Notice That the Board Has Precluded the Continuation of the CLi-86-13 Remand, dated June 10, 1988. They even went so far as to say that they were pre-cluded by their own laws and policies from making deponents available, in response to repeated Board orders, to testify as to fac't's within their knowledge. Teleconference of June 10,1988 Tr. 20854-857. Intervenors did this to avoid having to admit the exis-tence of State and County resources capable of responding to a Shoreham emergency.

And their laws and policies, again, were the State's and County's own "determinations" that emergencv planning adequate to protect public health and safety is impossible for Shoreham. Sgg, _eA. _id.

Thus, the recent discovery abuse is only symptomatic of.a deeper disease. The core problem remains the Intervenors' insistence, by one means or another, that they, not the NRC, be in f act the final judges of safety issues for Shoreham.

3. Suffolk County Has Systematically Thwarted Legitimate Discovery Throughout This Proceeding 1

A. County Discovery Abuses Have Not Been Limited to Nonproduction of the Emergency ODerations Plan The County's abuse of the discovery process in the Shoreham proceeding extends far beyond their late production of the Suffolk County Emergency Operations Plan on May 25,1988 - nearly six yea _rs af ter LILCO first requested that the County provide "all . . . documents pertaining to the County's plan or plans for dealing with emergencies that do not involve nuclear power."2 Indeed, from the beginning of this 2/ _Se_e LILCO's First Request for Production of Emergency Planning Documents j (June 2,1982). The Licensing Board, rejecting the County's objection that such requests (footnote continued)

proceeding, the County appears to have viewed discovery as being less the fact-finding process envisioned by the Commission's regulations than as another tool to be used to help implement Intervenors' policy that there will be no approved emergency plan for Shoreham.

The County's abuse of the "realism" discovery process has manifested itself in several different ways over the course of the past few months. This pattern of obstruc-tionism can be traced most clearly in the County's:

(1) months-long recalcitrance in producing County personnel noticed for deposition by LILCO. up to and including delibt.r-ate defiance of Board-ordered subpoenas; ,

(2) disingenuous designation of Suffolk County Executive Patrick Halpin as the person "most knowledgeable" of the County's emergency response capabilities for Shoreham emergency, and the County's subsequent obstructionist con-duct during the Halpin deposition; (3) misleading and untimely approach to "answering" LILCO's realism interrogatories; (4) objections, on relevance grounds, to LILCO's requests for production of documents, objections which, in light of prior Board rulings clearly establishing the relevance of such re-quests, cannot be considered to have been made in good f aith; and (5) tactic of producing, virtually on the eve of the recent hearing in Bethesda, and nearP; two months af ter the Board's May 10 order compelling production, numerous documents responsive to LILOC's discovery requests, including the cur-rent version of the County Emergency Operations Plan, as well a 373 page County Resource Manual.

Specific instances of such abuses, to the extent they can be itemized, appear in (footnote continued) were "irrelevant" to the scope of the emergency planning proceeding, ordered the County to produce all documents responsive to LILCO's requests. See Prchearing Con-ference Order (Phase I- Emergency Planning)(July 27,1982). The history of discovery during the Phase I, Phase II, and "realism" phases of the Shoreham proceeding has been previously documented in LILCO's Response to "Suffolk County Response to Licensing Board Discovery Inquiries"(June 1,1988).

. _. . . . y .

l l

1 "Specific Instances of Discovery Abuse by Suffolk County " which is Attachment 3 to this Supplement. A general description of the nature of each category of discovery  ;

l abuse follows.

(1) Refusal to Produce Deponents The history of the County's response to LILCO's attempts to depose knowl' edge-able persons on the matter of the County's "best efforts" response to a Shoreham emer-gency (and, later, on the issue of the non production of the SCEOP) is one that can be described as, at best, calculated footdragging. The chronology of the County's efforts to stonewall legitimate, Board ordered depositions is long and complex; highlights of that enconology are provided in Part II.A of Attachment 3.

While the chronology may be complicated, the bottom line is simple. With re-  !

spect to the "best efforts" issues, LILCO had, as early as April 5,1988, noticed the dep-ositions of five County witnesses (in addition to County Executive Halpin). Only three

' l of those depositions ever took place, and then only af ter the Board was twice force 1 to order the County to produce those persons. One result of this studied defiance on the part of the County was that LILCO was never given the opportunity to explore the sub-stantive depth of knowledge of two critical figures in any expected County response to a Shoreham emergency: Dr. David Harris, the Commissioner of the Department of I i

Health Services, and William Regan, the Director of Emergency Preparedness.E The County's obdurate refusal to produce these two men for "best efforts" depo-sition gives rise to the strong inference that their testimony would have lent credence to LILCO's prima f acie case on realism and supports LILCO's position that the Board, in dismissing the realism contentions, should rule in LILCO's favor on the merits. See l l

l 1/ Mr. Regan retired on or about June 1. He was thereaf ter summoned as a witness l by the Board in the four days of July hearings, but on the subject of f ailures to comply l with the discovery process (particularly as related to the SCEOP) but not on his sub-stantive knowledge of emergency planning.

Public Service C_o_mpany of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477,498 (1978), rev'd on other grounds. CLI-78-14, 7 NRC 952 (1978), cuoting in-ternational Union (UAW) v. NLRB, 459 F.2d 1329,1336 (D.C. Cir.1972); s_e_e also Kerr-McGee Chemical Corooration (West Chicago Rare Earths Facility), LBP-86-4,23 NRC 75,86 (1986)("While the issues raised by the (intervenors) are of great importance, the (intervenors'] recalcitrance (in complying with discoveiy orders] leads to the infer-ence that they do not have anything of importance to contribute to the resolution of these issues.").

Similarly, the County's pattern of behavior with respect to producing persons in connection with LILCO's notices of deposition on the issue of the non production of the Emergency Operations Plan has also been one of defiance, even in the f ace of Board or-ders. The chronology of the County's action in this matter is given in Part II.B of At-tachment 3.

The bottom line is once again simple: despite the Board's ruling during the June 17 teleconference, Tr. 20892-93, that the Intervenors had to comply with the dep-osition schedule which LILCO had requested,E none of the nine County deponents or-dered to appear were ever produced. Intervenors, apparently recognizing no law but their own, chose instead to directly challenge the Board's ruling by filing Governments' Motion to Vacate June 17 Order (June 20,1988).

The County's refusal to honor the Board's June 17 ruling was particularly egre-gious in the case of Richard Roberts and William Regan, whose appearences the Board had commanded through the issuance of subpoenas on June 16, 1988. The County 2/ LILCO had proposed the deposition schedule in LILCO's Brief on the Appropriate Remedy for the Intervenors' Failure to Comply with Board Orders (June 15,1988) at 26.

1.0/ LILCO was forced to seek subpoenas for Messrs. Roberts and Regan due to their retirement from County employment at the end of May,1988. LILCO was not informed by the County of Messrs. Roberts' and Regan's retirements until af ter the fact, despite LILCO's then-outstanding notices of deposition for the two men.

- .- .~ - .-- _

unilaterally cancelled the Roberts and Regan depositions on June 21,1988; only on that same day did the County file a motion to quash the subpoenas. As was noted in LILCO's Response to Motion to Quash Subpoenas (June 22,1988) at 1, the mere filing of the mo-tion to quash did not itself suspend the Board's subpoenas: under 10 C.F.R. 5 2.720(f) the subpoenas remained enforceable until further order of the Presiding Officer of the Board or the Commission. The chronology of the County's defiance of Board-issued sub-poenas is presented in Part II.C of Attachment 3.

(2) Designation of County Executive Halpin as "Knowledgeable" And Obstructionist Conduct by Counsel During Deposition LILCO has already described the obstreperous conduct in which counsel for Suffolk County engaged during the deposition of Suffolk County Executive Patrick G.

Halpin on April 19, 1988, a deposition which was arbitrarily terminated by the County af ter only two hours. S_ee, Supplement to LILCO's Response to Governments' April 13 Objection and Motien in the Alternative to Compel Discovery (May 2,1988) et 14-20 (hereinaf ter "May 2 Supplement"). The Board, in ordering the reopening of the Halpin and Axelrod depositions, itself took note that "the performance of Attorneys Brown, Zahnleuter and Lanpher during the Halpin and Axelrod depositions, based on their de-gree of persistency that was noted, amounted to what appeared to be almost a deliber-ate obstruction effort of the discovery process . . . ." Prehearing Conference (May 10, 1988) (Tr.19381).

A less blatant but equally significant abuse of the discovery process was the County's disingenuous representation of Mr. Halpin as the one County official able to speak, knowledgeably, authoritatively, and on behalf of the Governments on the matters at issue. Further, since the matter at issue here is the intended actions of the Govern-ments, the Governments are entitled to designate the per-sons to appear and speak on their behalf in a legal proceed-ing such as this, and this Board must respect that right.

Letter from Lawrence Coe Lanpher to the Licensing Board (April 15, 1988) at 2-3

(footnote omitted) ("April 15 letter"). Similarly, in the Intervenors' Answers and Addi-tional Objections to LILCO's Second Set of Interrogatorie5 Regarding Contentions 1-2, 4-8, and 10 (April 22,1988), in response to LILCO Interrogatory No.119, which asked "who in the Suffolk County government are most knowledgeable about how the . . .

County would respond to a Shoreham emergency with respect to each of the (realism) functions." the County answered that "Suffolk County Executive Patrick Halpin has been designated to testify regarding the County's response."

As LILCO noted in its May 2 Supplement at 17-20, despite this representation of Mr. Halpin as the person "most knowledgeable" about the County's emergency response capabilities, Mr. Halpin's answers throughout his deposition betrayed an almost abject ignorance of any County emergency plans that could be adapted, And County resources that could be utilized, in responding to a Shoreham emergency. In light of the later revelations about such County documents as the Emergency Operations Plan and the Resource Manual, certain portions of Mr. Halpin's deposition testimony are particularly curious. For instance:

Q. [by Mr. Sisk] Does the County have a general contingency plan for emergencies?

A. I don't know.

Q. Are you aware of any other standard documents or plans or procedures which you would look to follow in responding to I any type of emergency as County Executive?

(Objection omitted)

THE WITNESS: The answer is no.

Halpin Deposition at 11-12. The emergence in this proceeding of the SCEOP, which as-signs an authoritative role to the County Executive in responding to emergencies in Suffolk County,E would seem to cast a shadow on either the veracity or the M/ For example, SCEOP, Annex A Appendix 4 at 2 states that the "County Execu-tive is responsible for: a. Conducting natural and man-made disaster and nuclear at-

- tack emergency operations."

competence of Mr. Halpin's deposition testimony. Either choice, in turn, calls into question the candor of counsel for the County in representing to the Board in the April 15 letter that Mr. Halpin could speak "knowledgeably" and "authoritatively".on such matters (and, that, as a consequence, the depositions of the other County employ-ees noticed by LILCO were unnecessary).

As a related matter in light of the now recognized importance of the SCEOP to emergency preparedness in Suffolk County, the County's refusal ever to identify per-sonnel from its Department of Fire, Rescue and Emergency Services (or its predeces-

~

sor, the' Department of Emergency Preparedness), or the role of this agency, was as misleading as its f ailure to produce the SCEOP and other documents.

(3) Misleading and Untimely Approach to Answering LILCO's Realism Interrogatories On March 24, 1988, LILCO filed its Second Set of Interrogatories and Requests for Production of Documents Regarding Contentions 1-2,4-8, and 10 to Suffolk County, New York State, and the Town of Southampton (hereinaf ter "March 24 discovery re-quests"). Through these interrogatories and requests for documents, LILCO sought gen-erally to (1) discover the f actual bases, if any, for the Intervenors' expected assertion that they could not "generally follow the LILCO Plan" in a manner that would satisfy applicable NRC regulations; (2) explore the nature and adequacy of any County and State response to a Shoreham emergency no.t involving the use of the LILCO Plan,N and (3) examine the bases for certain statements made in affidavits submitted in 12/ See 10 C.F.R. S 50.47(c)(1)(lii).

1.3/ In structuring its discovery requests with respect to these first two purposes, LILCO relied upon the guidance given by the Board in its February 29,1988 Con-firmatory Memorandum and Order, where it stated, that a "determination (by the Inervenors} to respond a.d hoc would be acceptable only if accompanied by specifica-tion of the resources available for such a response, and the actions such a response could entall including the time factors involved." Confirmatory Memorandum and Order at 4.

- -- n

-.= .-

opposition to LILCO's December 18, '987 suramary disposition motions on the "realism" contentions. Under 10 C.F.R. 5 2.740b(b), the Intervenors' answers to LILCO's March 24 discovery requests were due on April 7,1988.

On April 6,1988, the Intervenors filed their Motion for Extension of Time to Re-spond to Realism Discovery Requests, and to Extend Discovery Schedule (hereinaf ter "April 6 Pleading"). In this pleading, made one day before answers were due, the Inter-venors asked for a three-week extension to reply to LILCO's March 24 discovery re-quests.

In retrospect, the April 6 pleading was the first intimation that the County and State had no intention of participating in the "realism" discovery process in the mean-ingful and illuminating way that the Board had envisioned (indeed, had mandated) in its February 29,1988 Confirmatory Memorandum and Order.

Mortover, in retrospect, it oecomes clear that in asking for more time to re-spond to LILCO's March 24 discovery requests, the Intervenors misled the Board as to the County's and State's future intentions with respect to "realism" discovery. In citing one alleged justification for the requested extension, the Intervenors, claiming that "LILCO's Second Discovery Requests are lengthy and complex," stated that "[r]espond-ing to these interrogatories would clearly require substantial time and effort . . . ."

April 6 pleading at 6. The clear implication of the April 6 pleading was that substan-tial, considered responses to LILCO's requests would be forthcoming if only the Board would grant the Intervenors more time.M It soon became apparent, however, that, even as the Intervenors were requesting more time to respond to LILCO's "lengthy and 1 complex" March 24 discovery requests, they were preparing, instead of answers, a l

M/ The Board, in a subsequent teleconference ruling on April 11, 1988, did give the Intervenors an extension: to April 20 to file objections and to April 22 to file substan-tive responses.

l

pleading that was to change the course of the realism proceeding dramatically: their 57 page Objection to Portions of February 29 and April 8 Orders in the Realism Remand and Offer a' Proof (April 13,1988)(hereinaf ter "April 13 Objection").

As LILCO described in detail in its May 2 Supplement at 6-13, when the Interve-nors did finally submit (on April 20 and 22) their objections and answers to LILCO's March 24 discovery requests, they provided virtually no substantive information.E In f act, in response to every LILCO interrogatory designed to elicit information on the na-ture and adequacy of a County and State "best efforts" response to a Shoreham emer-i' gency, the Intervenors "answered' by making direct reference to the position expressed in their April 13 Objection:

The Governments object to the Interrogatory on the ground that it calls for speculation by the Governments. Notwith-standing this objection, the Governments state that, for the reasons set forth in their April 13 Objection and Offer of Proof, they have not adopted any plan, or otherwise trained or planned for responding to a Shoreham emergency. A c-cordingly, they are in no position to provide further respon-sive information.

i e _e.,.g.,

S_ee, Governments' Answers and Additional Objections (April 22, 1988) at Interrog-atories 9-10, 13-17, 19-26, 28-31, 35-38, 40-43, 45-47.

In sum, the conclusion is nearly inescapable that when the Intervenors moved on l

1 April 6 for more time with which to respond to LILCO's March 24 discovery requests, they had no intention of providing the sort of substantive information that they implied would be forthcoming. They wished instead to use the time requested to first finalize i

their April 13 Objection and then use that pleading as the basis for the meaningless an- I swers which they subsequently provided in response to LILCO's legitimate M/ In addition, apart from a single page police notification procedure for the Coun-ty Executive's office, the Intervenors provided no documents, in stark contrast to the literally thousands of pages of documents which the Intervenors produced in the months af ter the Board ultimately overruled their "relevance" objections.

interrogatories. This approach to "answering" LILCO's March 24 discovery requests was misleading-to both the Board and to LILCO and further evidences the appropriateness of severe sanctions.

(4) Bad Faith Relevance Objections

, to LILCO's Recuests for Documents In its March 24 discovery requests LILCO asked for, among other things, a copy of any and all existing plans and procedures for re-sponding to emergencies, whether radiological or nonradio-logical, affecting Suffolk County, including, but not limited to, chemical spills, fires, hurricanes,' explosions, and earth-quakes. Please include any and all plans for dealing with ac-cidents involving shipments of radiological materials to Brookhaven National' Lab, the Shoreham Nuclear Power Sta-tion, hospitale and other medical f acilities, and industrial fa-cilities.

S_ee LILCO's March 24 discovery requests at Interrogatory No.120. In their response to this and 60 other requests for emergency plans and procedures (most of which dealt 1

with Ingestion pathway resynse for nuclear power plants in New York other than i Shoreham), the Intervenors objected to the extent that they seek information about emergency.

planning for nuclear power plants other than Shoreham, the actions of governments other than the Governments, emer-gency plans other than the LILCO Plan, and emergencies 4

other than a radiological emergency at Shoreham. The re-quested information is not relevant to the issue before the Board, which concerns only the nature of a "best efforts" re-sponse to a Shoreham emergency.

lee Governments' Objections to LILCO's Second Set of Interrogatories Regarding' Con-tentions 1-2, 4-8, and 10 (April 20,1988) at 2.N During the May 10, 1988 Prehearing Conference the Board overruled the Intervenors' relevance objections and ordered the production of responsive State and County plans and procedures (Tr. 19382-83). There-af ter, on May 25, 1938, two months af ter LILCO had first propounded its document 16/ A full description of the Intervenors' Objections to LILCO's Second Set of Inter-rogatories is given in LILCO's May 2 Supplement at 6-10.

l' 4

- ,r , - --- - , -w,,,- ,.,,,ev-,,-%,-,re*

--,.,,..,-w-,--,e-----ev..

,-,-y,, # i.- >,w--,,.-,,,wwerwe+- -w,,+owm,*-,--,w,,,,*y--,,-,,vp-a,%mrew,v,.-v=,,.e,-

requests (and nearly three weeks af ter LILCO had filed its realism testimony) the Coun-ty produced its Emergency Operations Plan, the SCEOP.

In its objections to LILCO's realism discovery requests, the County's good f aith is called into question. Objections to interrogatories and document requests are of course contemplated under 10 C.F.R. SS 2.740b(b) and 2.741(c). In the Shoreham proceeding, i

however, prior Licensing Board rulings had already established unequivocally the rele- '

vance of the County's plans and procedures for non-Shoreham emergencies. The pat-tern of the County's objections to discovery requests on relevance grounds - and the Board's repeated rejection of those objections -- are traced in Part I.C of Attachment 3.

In short, the County's insistence on revisiting the "relevance" issue. and to thus l

delay and impede LILCO's discovery rights, further indicates that the County cc'uiders itself, and not the Board, to be the arbiter of first instance la this case. Given its re-l cidivist tendencies,it is evident that the County simply will not comply with the NRC's  !

discovery processes absent direct and repeated Board intervention. This is a course of l

conduct incompatible with responsible participation in an important case.

Late Production of County Emergency Plans l

(5)

On Saturday morning, July 9,1988, virtually on the eve of the recent hearing in Bethesda, LILCO received from Suffolk County additional documents responsive to LILCO's March 24 discovery requests. Included in this shipment of documents was what counsel for the County termed in the accompanying cover letter as a "somewhat up-dated version" of the Emergency Operations Plan (LILCO Disc. Ex.10). The letter fur-ther stated that couroel for the County had only become aware of the existence of this "updated version" during meetings held on Long Island that same week. See Letter from Lawrence Coe Lanpher to K. Dennis Sisk (July 8,1988). Also produced to LILCO for the first time was a 373 page document which counsel for the County represented to be the Suffolk County Resource ;,1anual(LILCO Disc. Ex.13).

The County's July 8 production of documents followed by just two days another shipment of over twenty different emergency plans and procedures which the County had apparently had in its possession for a considerable per.'d of time. A list of the documents which were provided to LILCO under cover of leders dated July 6 and July 8,1988 is given in Part !.B of Attachment 3.EI In a vacuum, tardy production of responsive documents during the discovery pro-cess can sometimes be excused as an oversight. Certainly, in undertaking extensive searches involving a considerable number of documents the County might be entitled to the benefit of the doubt. Given its history of discovery abuses, however, whether the County is now entitled to such consideration is open to question.

Of pt cticular significance is the County's failure to prcduce until now that por-tion of the Resource Manual consisting of the Emergency Broadcast System (EBS) Pro-cedures for the Nassau and Suffolk Counties New York EBS Operational Area. LILCO does not contend that it did not have prior access to this particular document. To the contrary, the EBS procedure for the Nassau and Suffolk Operational Area was submitted as a portion of Attachment 4 to LILCO's Second Motion for Summary Disposition of the EBS Issue (June 20, 1988). What is important !.i that it is now certain that the County has long had access to a copy of the EBS procedure and has even taken steps to update 17/ Coimsel for the County, in the letter accompanying the July 6 (received July 7) shipment, stated that the documents were being produced, "[i]n accordance with the Board's Order on June 29." See Letter from Lawrence Coe Lanpher to K. Dennis Sisk (J'.ily 6,1988). LILCO had, of course, first sought these documents (in the current pro-ceeding) on March 24; the Board had first ordered the County to produce responsive documents during the May 10 Prehearing Conference; and LILCO was forced to seek further Board intervention in order to ensure the County's full compliance with that Order. LILCO's Response to June 24 Teleconference Order (June 28,1988) at 5.

M/ Certain of the documents provided to LILCO on July 6 had already been produced during Phase I and Phase II discovery. While LILCO has not made a definitive compari-son of the documents produced on July 6 and those previously provided, the list given in Part I.B of Attachment 3 is intended to represent only documents not previously pro-duced by the County.

~. . ..- _ _ _ . __.

information in it, including the twenty-four hour newsroom phone number for WCBS in New York City, the primary relay station which LILCO now relles upon, under the "best efforts" principle,in its own Revision 10 EBS procedures.

During the July hearings, the County sought to downplay the importance of the Nassau-Suffolk Operational Area EBS procedure:

MR. LANPHEL Mr. Jones, this document which Mr. Spivey has sought to have introduced, I'd like you to look at that document. Has this document ever been approved as the Suffolk County [EBS] plan?

THE WITNESS: No, sir.

MR. LA NPHER: And you testified it's not part of the Suffolk County Emergency Operations Plan, correct?

THE WITNESS: No, it's a resource for our resources. The purpose of this thing is just so he has a list of radio stations that he could call. We don't have an official EDS station in Suffolk County. ,

MR. LANPHER: Okay. I have no further questions, then. I oppose the introduction. It's not pertinent to the discovery issues which are the focus of this proceeding, and it's not part of the plan. I don't understand why it should be admit-ted in evidence.

Tr.21422-23. The County's argument, disputing the value of the Nassau-Suffolk Opera-tional Area procedure because it had not been formally "approved" as the County's EBS plan, is representative of the Intervenors' longstanding policy to deny that preexisting plans and resources could ever be used for a Shoreham emergency. Given its failure to produce, until July 1988, the most updated version of the Emergency Operations Plan, and its last-minute production of literally hundreds of pages of other emergency plans and procedures, including the County Resource Manual, the County appears to have al-lowed that policy to color their compliance with LILCO's discovery requests and with the Board's orders.

B. The Suffolk County Emergency Operations Plan Was Never Produced to LILCO Before May 1988 The Suffolk County Emergency 0,n= rations Plan (SCEOP) first appeared in this proceeding under cover of a May 24,1988 letter from Lawrence Coe Lanpher, one of Suffolk County's counsel, to LILCO's counsel. Mr. Lanpher's letter contained the fol-lowing agnostic recitation:

I have received from the County a document entitled 'Coun-ty of Suffolk Emergency Operations Plan. I am informed that it is about 750 pages in length - I have not attempted to count. At any rate, it contains a variety of documents, including one entitled ' County of Suffolk Disaster Prepared-ness Plan,' which I presume to be item 2(c) mentioned in your May 10 letter.

The Disaster Preparedness Plan, a 54 page document (plus some 45 pages of documenta-ry attachments and a 10-page Brookhaven township plan appended), was a document known to LILCO from 1982-83 discovery. LILCO's May 10 letter had sought a more up-dated version of that document, if one existed, than the circa 1981 version possessed.

What emerged was a document nearly an order of magnitude larger, containing annexes, appendices, directories and resource listings for every major component of the Suffolk County government.

LILCO informed the Board in open hearing on May 27 (Tr. 20537-42) of the exis-tence and emergence of this composite document, and stated that it had never before been produced in this proceeding and was of obvious significance to the resolution of the realism /best efforts issue. LILCO counsel also stated that LILCO had never been informed of the existence of this document in this iltigation through the discovery pro-cess.N While LILCO could not establish at that time exactly when the document had 1

19/ A history of LILCO discovery requests dating back to 1982 which were intended to have unearthed documents such as the SCEOP, and reasonably should have in the lib- l eral discovery framework contemplated in NRC proceedings, is set forth in Part I.A of .

i l

i came into existence in what form, it was evident that the document had been in exis- '

tence in toto since at least 1985, and that most of it appeared to have existed as far back as the late 1970s. LILCO counsel stated LILCO's belief that LILCO and the pro-cess of development of the realism issue had been significantly prejudiced by the non-disclosure of this docume.it, which revealed both the existence and the results (of l varying degrees of currency) of a countywide plantiing process integrated to some de-gree with State requirements. Tr. 20829-31.

Subsequent events have merely confirmed LILCO's initial perception of the na-ture and significance of the SCEOP, and of its absance from this proceeding. Indeed, subsequent process and analysis have disclosed that the document appears to have ex-isted in virtually complete present form by 1983, when the "Phase II" discovery in this proceeding took place, and perhaps in 1982 as well when the "Phase 1" discovery took place. LILCO's records indicate that it never received the composite 750 page docu-ment; and that what it received in 1982-83 amounted to a total of about 160 pages, scattered among over a half-dozen unrelated fragments with no suggestion that a com-posite document even existed. Subsequent inquiries have also disclosed that New York State knew of the SCEOP and was directly involved in its periodic review and update.

Suffolk County's responses, by contrast, have been of a confession-avoidance-and-diversion nature, and have shif ted with time. From Mr. Lanpher's initial letter of disclosure, the County conceded that the SCEOP existed but asserted that the County believed it had been turned over in discovery in 1982-83 (the County had no discovery records). The County then shif ted ground to attempt to cast doubt on the size and scope of the SCEOP as of 1982-83. Finally, the County has attempted to divert the focus from its own discovery default by suggesting, irrelevantly (and, as it turns out, in-correctly), that LILCO had actual possess'.on or at least notics of the existence of the full SCEOP before the preser:: time. By contrast witf LILCO, the County cannot document any of its arguments,

The overwhelming preponderance of the evidence suggests that the SCEOP ex-isted as a composite. document in present or virtually present form and substance as of 1982-83; that it was never turned over to LILCO in formal discovery notwithstanding orders to do so; and that whatever may have been received informally at some point by a person within LILCO, it was not the complete SCEOP and the ultimate recipient was not even necessarily involved in the Shoreham emergency planning litigation. These matters are specified below.

(1) The SCEOP Existed in Virtually Its Present Form and Sutstance in 1982-83 The evidence that the SCEOP existed as of 1982-83 in present or virtually pres-ent form (subject to updatings of names, addresses and telephone numbers) is overwhelming.

A. Examination of the SCEOP, either as produced in late May 1988 or on the eve of hearings on July 9 (LILCO Disc. Exs. 9,10), reveals a document over 750 pages long. Of these only about 117 pages bear dates later than 1983; of these, some 76 indi-cate that they are updates rather than original, later-added material.EI Thus the

@/ Perusal of the version received by LILCO in May 1988 (LILCO Disc. Ex. 9) indi-cates the following pages to bear date legends later than 1983:

• Annex A. App. 2 Att. D: Lines of Successien,34 pp, updated 4/85

• Annex A, App. 2 Att. E: Command and Control,3 pp. added 7/85

• Annex A, App. 3, EP Channels,5 pp. updated 7/85

• Annex A App. 7 Emergency Directory,34 pp. updated 5/84

• Annex A, App. I, Brookhaven Personnel,3 pp. added 3/83

• Annex A, App.11. EOC Hurricane Procedure,7 (of 17) pages added 7/85 ,

' Annex C, App. 2, CAP Automatic Command Succession,1, page updated  :

7/85

• Annex C [ app unspecified] CAP Locator List Directory, 2 pp. (of mor ' rodated 7/85

• Ana.3x F. App. 3. Health Services 7 pp, added (?) 3/35  ;

• Annex H, Police Services,21 pp added (?) 11/84, updated 4/85 The totals indicated are as follows: total pages apparently added af ter 1983, 41; pages updated,76; pages unchanged since 1983, about 640. These totals am probably not pre-cisely accurate; but their general levels are.

(footnote continued) l l

l

irrefutable evidence of the document itself bespeaks its existence in 1982-83 in sub-stantially if not exactly present form and size.

B. The version of the SCEOP received by LILCO on July 9 (LILCO Disc. Ex.

10) contains a four-page Table of Contents. The first page of that Table bears the dar-1/82. The latter three pages are in a different typescript and bear no date. Even the first page, however, covers the basic New York State plan and Annex A, Appendices 1 through 10 -- over 1/3 of the current bulk of the entire present SCEOP. It is difficult to imagine that every subsequent Annex and Appendix in the SCEOP was not added until af ter that period, hiven the early (1982 and earlier) dates on most of the subse-quently listed material. In any event, despite the irrefutable proof of the existence of these portions of the SCEOP as of 1982, not even all of them were turned over to LILCO in 1982-83 discovery. See Attachment 5.E C. The testimony of the various witnesses who, as Suffolk County officials, l had had custody of one version or another of the SCEOP corroborated that it had grown l substantially since 1980 (Tr. 21570, 21583 (Kelly)), but none denied that it had been in i current form as of about 1982-83. Mr. R. Jones, who took over custody of the SCEOP in i

1984, stated that the only changes between the SCEOP as of 1984 and its update in 1985  :

)

involved updatings of names, addresses and telephone numbers, but no other substantial

)

changes in form of content (Tr. 21377-79, 21389-90); he also confirmed that the plan in (footnote continued) j l

The totals for the currently effective versions of the SCEOP (LILCO Disc. Ex.10) are comparable. While the 17 page Hurricane Procedure (Annex H. Appendix 4) was appar-ently updated af ter Hurricane Gloria in October 1985, all other differences between the changes to LILCO Disc. Exs. 9 and 10 appear to be ministerial.

M/ Additionally, as a matter cf logic, the existence of "Annex A" (as contrasted with plain "Annex") presupposes the existence of further annexes B, C and so forth.

Thus the type faces for Table of Contents do not limit the 1982 contents of the SCEOP to the New York State basic plan plus Annex A.

1984 was "pretty much the one' that was in use" in 1982 and 1983.

4 (Tr. 21383).

Mr. Regan, the haad of the Division of Emergency Preparedness from 1982 until June of 1988, af ter initial memory lapses, confirmed that the contents of the SCEOP "were Ell

- general plans per se when I even got there in 1980." Tr. 21901-03, 21904 (July 19.

1988). He became even more specific:

Q: Having looked at this docunient (LILCO Disc. Ex.10, the SCEOP] can you say that all the plans that are in front of you now were there in some form in 1980. In January 1982?

A: I would say so.

Ld. The SCEOP existed as a recognizable document. in largely its current form and sub-stance (save for miscellaneous updatings) probably in 1982, and certainly in 1983.

(2) The SCEOP Was Not Provided to LILCO in Discovery in the 1982-83 Time Period Mr. Lanpher's May 24 letter suggests nothing as to either the date of origin of the SCEOP or as to whether he believed it had ever been produced before. But against all of the County's post hoc circumstantial protestation of belief that the SCEOP had been previously produced there remain two stark questions: Why,if the County had en-gaged in massive document production and produced the SCEOP in 1982 and 1983, did it voluntarily prodde it again in 1988? And why if the County thought it had produced the SCEOP earlier,. did Mr. Lanpher's very carefully worded May 24 letter make no such suggestion? The caly plausible answer is that it had not been produced earlier, as the following paragraphs show.

1 A. Not one of Suffolk County's own witnesses has a positive recollection of I production of the SCEOP in 1982 or 1983. Suffolk County's witnesses (Messrs. R. Jones, '

Bilello, F. Jones and Regan) each testified that a document search had been performed in 1982 and again in 1983. Messrs. R. Jones, Bilello and Regan think that,the SCEOP was gathered for production at each of those times. Messrs. R. Jones, Bilello and Regan all believed that the document was transmitted to Mr. F. Jones. But none of them has

l l

any specific recollection of gathering or copying the SCEOP itself (Tr. 21320 (R. Jones). i 21449,21451, 21472 (Bilello) Tr. 21887 (Regan)), despite its centrality to the work of the Division of Emergency Preparedness and its maintenance in a one-of-a-kind looseleaf notebook in the Suffolk County EOC. Mr. R. Jones was not even responsible for custody of the SCEOP until 1984 and does not know what was produced before that time (Tr.

21371-72). Mr. F. Jones recalls forwarding all the documents he received to counsel.

but has no specific recollection of forwarding the SCEOP (Tr. 21841).

B. Suffolk County's counsel have no records substantiating their document production in 1982 andi983. Those records were apparently returned to the County in 1985 and have not been recovered or located since. Tr. 21304-05 (Letsche).

C. LILCO has the only records known to exist on the extent of discovery in 1982-83. These consist of two indexes prepared in the normal course of business under the supervision of counsel, listing each individual document received by LILCO in dis-covery in 1982-83. Each document is identified by separate Bates Stamp marking sys-tems employed by counsel for LILCO and for Suffolk County. These indexes were de-scribed in an affidavit submitted by one of LILCO's counsel, James N. Christman, Esq.,

as Attachment 2 to LILCO's June 23, 1988 Response to Intervenors' Motion to Vacate.

The Ind;xes, and a document search to verify them, were provided to all parties and the Board voluntarily by LILCO under cover of a letter from K. Dennis Sisk, Esq., one of counsel to LILCO, on July 9. Those indexes and document search, described in Mr. Christman's affidavit, confirm that the composite SCEOP was never produced to LILCO in discovery in the 1982-83 period.

1 D. The LILCO document indexes contain among their entries each of the I

fragments received from Suffolk County. These were initially summarized in and at-tached to Mr. Sisk's July 9 letter (they were later introduced as Suffolk County Discov-ery Exhibits). They were more precisely summarized in an attachment to a July 18, W

t et- - ---T .-.ym- ----+g ,y c,. wwy,y e ----r-r,m-m y- --r.y--wr

1988 letter from Donald P. Irwin, Esq., one of counsel to LILCO, to the Board. That at-tachment, which is reproduced as Attachment 5 to this brief, documents the following:

1. LILCO never received the composite SCEOP either as one document or as a series of fragments.

2. LILCO received 11 discrete pcrtions of the SCEOP in 1982-83.

3. Three of these portions, including the "basic" Suffolk County Disaster Pre-paredness Plan (Annex A Appendix 9) were received in 1982. Two of these were re-ceived again in 1983. Eight of the 11 discrete portions were received only in 1983.

4. The 11 discrete portions total 161 pages, out of the 762 total in the cur-rent SCEOP (LILCO Disc. Ex.10).

5. Despite the fact that the basic State plan and Annex A are shown by the Table of Contents of the SCEOP to have existed as of 1/R2, not even all of them were prc /ided in discovery in 1982-83.

6. The Suffolk County-originated Bates Stamp numbering sequences for those l portions of the SCEOP do not follow any clear order, indicating that when the County i

(or its counsel) marked fragments of the SCEOP prior to disclosing them to LILCO, they 1 did not mark them as portions of a discrete document.

(3) LILCO Was Never Provided the Composite SCEOP by any Other Means Than by Formal Discovery, l and Does Not Possess it Except as a Result '

of Document Production Since Late May 1988 Suffolk County, as a last-minute means of deflecting attention from its own de-faults, suggested that a LILCO employee, Mr. Kelly, received a covert copy of the en-tire SCEOP at sometime in 1985-86, at that he had acknowledged that receipt at a re-cent lunch. The County's assertions are baseless.

1. There is general agreement that Norman Kelly, a LILCO employee, re-quested and obtained, without any apparent difficulty, a copy of some portion of the SCEOP in the 1985-86 period from its County cLstodian, Mr. R. Jones.E# Beyond that p/ Mr. Jones apparently provided Mr. Kelly with other materials from time to time upon request, despite the Shoreham litigation. Tr. 21550-51 (Kelly).

point, nothing is clear. The evidence conflicts as to whether Mr. Kelly obtained the en-tire plan or just the Disaster Preparedness Plan with potentially some attachments.

Mr. Kelly cannot recall who asked him to obtain the document (Tr. 21566-67) or to whom he gave it, though it "might have been" either William Renz (former LILCO em-playee) or Charles Daverio (a present LILCO employee) (Tr. 21549, 21562, 21568).

Mr. K )lly, though he works in the emergency planning area at LILCO. has never baen invcived in this litigation or discussed it with his supervisors. (Tr. 21557-58).

2. Mr. Kelly recalls requesting "just the basic plan" from Mr. R. Jones in 1985 or 1986 because of time pressure and Mr. Jones' statements that the plan would have to be copied and that, with annexes, the entire plan was "thick as a telephone tx.%k." Tr. 21548. Mr. Kelly picked up the portion of it he had requested the next day af ter it had been copied (Tr. 21548-49). The document was in a brown envelope, which Mr. Kelly examined briefly at the time. (Tr. 21549) Mr. Kelly had first examined the current version of the entire SCEOP in late June about two or three weeks before date of his testimony (Tr. 21559-60). Mr. Kelly was asked two separate times whether the material he had picked up from Mr. Jones in 1985 or 1986 had corresponded to the cur-rent versic.1 of the SCEOP. Each time he answered that, based on his contemporaneous examination of the document he had obtained in 1985 or 1986, the current SCEOP was substantially larger than what he had obtained in 1985 or 1986, which he recalled to have consisted of as just the "basic plan" with, pe: naps, Annex A at tached.

(Tr. 21561-62, 21586-87, 21594-95).EE i

23/ The current version of the SCEOP reviewed recently by Mr. Kelly was copied on i both sides, fr.sking it relatively compact. It was never established whether the docu-ment actually @talt.ed by him in 1985 or 1986 was copied on two sides or one.

(Tr. 21595), though Lh R. Jones of Suffolk County testified that the 10 copies he had nad made in 1985 wert two-sih. (Tr. 21380). If the 1985-86 document recalled by i Mr. Kelly had been copied on only one side the disparity between the document and the i current SCEOP would be all the greater.

4

-i

)

l 1

3. LILCO has conducted a diligent search for the SCEOP in the company's files, and located nothing not otherwise already disclosed. There were projects at LILCO underway in the 1985-86 time period, unrelated to Shoreham, that could have in-volved a need for emergency planning information from Suffolk County. A thorough search of the records of the Shoreham files and of these other project files, and inter-views with all present and former LILCO personnel who could be located, including Messrs. Renz and Daverio, has failed to unearth either documents or a request to Norman Kelly for them. The Affidavit of John A. Weismantle, submitted in signed and notarized form under cover of a letter from Donald P. Irwin dated July 21,1988, ad-dresses this issue.

4. Mr. R. Jona of Suffolk County testified that he had provided Mr. Kelly with one of the 10 copies he had made of the SCEOP for internal-reviev' purposes, in 1985-86. (Tr. 21322, 21329). But Mr. Jones' apparent generosity with photocopying is inconsistent with both Mr. Kelly's recollection (See 1 2 immediately above and Tr. 21548-49) and with Mr. Jones' statements about the limited copying capacity of the Suffolk County Division of Emergency Preparedness. His organization, he stated, is "not in the publishing business, you know" and to copy that EOC master copy is a monumental undertaking.

For some folks, it's nothing, but for me with my little xerox machine - and I didn't think it was necessary that they have the current updated one, you know, a copy of the plan as it existed on May whatever.

Tr.21409.

Mr. Jones was also misinformed about the nature of Mr. Kelly's work at LILCO. He as-serted that "one of (Mr. Kelly's] prime responsibilities is the maintenance and formula-tion of that plan." (Tr. 21327). In f act, Mr. Kelly is not involved in plan formulation at all, nor, except as to ingestion pathway, plan maintenance. (Tr. 21546-47, 21556-57). l l

l 1

On balance, the cire mstances as well as the apparent relative degrees of cred-itility of the witness' cestimony, support Mr. Kelly's version of the f acts in this diver-sionary issue.E'

4. Nen York State Has Systematically Thwarted Ladtimate Discovery Throughout This ProceedlE A. The State Knew of, But Failed to Disclose the Existence of, the Suffolk County Emergency Operations Plan New York State neither produced nor disclosed the existence of the SCEOP dur-ing discovery.E Indeed, the State denied knowledge of the SCEOP at discovery depo-sitions,E at hearings before the Board shortly af ter the Plan was produced to LILCO.E and even at the recent hearings before the Board.EI in his deposition.

Donald DeVito, the director of the State Emergency Management Office (SEMO),

testified that he had no knowledge of any general emergency plan for Suffolk County and that he doubted if anyone in SEMO would know. Dep. Tr. 7, 25 (DeVito). SEMO is the State agency responsible for overseeing and assisting localities with emergency plans for all types of emergencies except nuclear power plant accidents. Ld. 24-25 (DeVito).

)

2_4/ The County's assertion of supposed acknowledgement by Mr. Kelly at a recent  !

lunch of receipt of on SCEOP in 1985 or 1986 also bears on the relative credibility of the witnesses, Mr. Kelly's superior recall of the facts and circumstances of that event (Tr. 21532) combined with the corroboration by Mr. Regan, one of the County's own witnesses, of Mr. Kelly's denial of any discussion of his receipt of the SCEOP in 1985-86 i (Tr. 21889), completely quells this baseless allegation and impugn Mr. Bilello's general credibility.

25/ See Governments' Answers and Additional Objections to LILCO's Interrogatories (April 22,1988) (LILCO Disc Ex. 39); State's Answers to LILCO's Second Set of Inter-rogatories (June 3,1988) (LILCO Disc. Ex. 8).

26/ Tr. 21231-2J 234 (DeVito); DeVito Dep. Tr. 7,25. _Se_e Axelrod Dep. Tr. 66.

22/ Tr. 20549 (Zahnleuter) (denying knowledge of the SCEOP by anyone in the State government).

M/ Tr. 21102 (DeVito); Tr. 21760-761 (Germano); Tr. 21660 (Axelrod). But see Tr.

21983 (Davidof f).

I 1

In fact, however, it is inconceivable that the State did not know about the SCEOP during the course of discovery. The indicia of that knowledge are numeroes:

1. The SCEOP ltself contains sections "prepared by the State." h, LILCO Disc. Ex. 9, pp. K00003-K00033. Indeed, those portions of the SCEOP that were "prepared by the State" reveal . hat the New York State Emergency Operations Plan (the as' s erted predecessor to the NY DEP)"will constitute the one basic document for State and local response to natural, man-made disasters, other emergenies of sufficient magnitude to require a coordi-nated effort, and nuclear attack:" that "(a]ssistance and advice will be provided to local jurisdictions through the District Offices (of the Office of Disaster Preparedness, the predecessor agency to SEMO) for the devel-opment of such Appendices to the Plan and its Annexes as may be re-quired to reflect local conditions and procedures;" and that:

All such material developed by local jurisdictions and any revisions thereto shall be submitted to the Office of Disaster Preparedness promptly upon completfo_n to facilitate State coordination of disaster operat'ons and the rendering of assistance to stricken areas.

i LILCO Disc. Ex.10, pp. K02243-K02244.  !

2. A pleading filed on behalf of the State and County on June 26,1988 stated that SEMO personnel had known of the existence of the SCEOP "for l l

years." See Tr. 21662 (Axelrod), 21226-227 (DeVito), 21760-761 (Germano).

S_ee also 21994-995 (Davidoff).

3.

Suffolk County has received federal funding for emergency planning i

through SEMO for as long as anyone remembers. Tr. 21234-235 (DeVito), i Tr. 21742, 21745-747, 21761 (Germano). This funding flowed through SEMO, and SEMO participated in various Comprehensive Cooperative Agreements by which those funds were allocated and earmarked to local governments. Tr. 21739-742 (Germano).

I

4. A member of SEMO's planning section. Jerry Horton, reviewed at least  !

the Suffolk County Disaster Preparedness Plan in 1981, pursuant to Article 2B of the New York Executive Law. LILCO Disc. Ex.15 (admitted Tr. 21907). Suffolk County witness Richard Jones identified the Suffolk County Disaster Preparedness Plan as the County's "basic plan" which ap-pears as Annex A. Appendix 9 of the SCEOP produced to LILCO in 1988.

Tr. 21306-307 (R. Jones). Mr. Regan could not say which parts of the SCEOP Mr. Horton had reviewed in 1981. Tr. 21913-14 (Regan). It is clea'r, however, that as of 1981 Article 2B required plans complying with it to cover radiological accidents at nuclear plants, Article 28 5 20(2)(a),

though the 1981 Disaster Preparedness Plan purports not to cover such ra-diological accidents LILCO Disc. Ex.10 p. K02425, Tr. 21894-96 (ques-tions by Judge Shon); that Mr. Horton found that the Suffolk County Di-saster Preparedness Plan generally met the requirements of Article 28 LILCO Disc. Ex. 35; and that the "basic plan" portion of the SCEOP that was "prepared by the State" does cover such radiological accidents, g, LILCO Disc. Ex.10, p. K02248 (manmade disasters include nuclear facility accidents).

5. Mr. Davidoff stated that members of the REPG staff, as well as Suffolk County and LILCO representatives, took sections out of the SCEOP at times between approximately 1980 and 1982 as useful resource material for a draf t Suffolk County Radiological Plan for Shoreham.EI M/ LILCO has filed, and stands on, the affidavits of James N. Christman and John A.

Weismantle as to when it first learned of the existence of the composite SCEOP. See Arguments 3.B.2, 3.C.3 above.

l

6. Mr. Davidoff verified a portion of the State's Answers to LILCO's Third Set of Interrogatories, stating that.pertions of the SCEOP were based on an outdated version of what later became the State Disaster Preparedness Plan.

7. The County's witnesses confirmed that SEMO personnel had long known of the existence of the SCEOP. Mr. Regan, in particular, referred to a SEMO representative in the Southern District office in Poughkeepsie.

Mr. Salamone.E

8. The State did not say whether it had looked for documents or made inqu'-

ries of personnel in its Southern District office. See Tr.21103-104 (DeVito): Tr. 21729-730, 21769 (Germano).

9. One of the principal roles of the planning section of SEMO is to assist  !

counties with emergency plans. Tr. 21132, 21136-138, 21233-234 (DeVito).

Tr. 21736-740 see Tr. 21613 (Axelrod).

10. A directory of SEMO personnel is conta'Aed in the County's Resources Manual referenced in the SCEOP. LILCO Disc. Exs.13,14; Tr. 21205-208 (DeVito). The 1987 Suffolk County Emergency Services Direc!ory, which i

3.0/ The "outdated" plan apparently was a document entitled, The New York State Emergency Operations Plan, though none of the State's witnesses, including Mr.

Davidoff, could recall. LILCO Disc. Ex. 25, which is Annex K of the SCEOP, Tr.

21412-414(R. Jones), has a cover page which identifies it as Annex X to the "New York State Emergency Operations Plan", Tr. 21260 (DeVito). See also LILCO Discovery Ex.10, p. K02243-44 (introduction of the SCEOP refers to the State of New York Emer-gency Operations Plan). Mr. Davidoff made clear at the hearings that his verification of the State's answer did not verify the statements of the State's counselin the hearing transcript pages referenced in that Answer. Tr. 22049 (Davidoff).

M/ Tr. 21911-912 (Regan); LILCO Disc. Ex.11; Tr. 21206-21211 (DeVito).

was not produced to LILCO in discovery (though earlier versions of that document are part of the SCEOP. se_e. e.g., LILCO Disc. Ex. 10, pp. K02380-K02411), also lists SEMO personnel and telephone numbers.

11. Some of the State's documents contain points of contact with Suffolk County emergency response personnel, including Mr. Robert Sheppard of the Suffolk County Health Department. See, e.g.. LILCO Disc. Ex. 7.

12. When pressed, virtually all of the State's witnesses acknowledged that

- they would have been surprised if a county in New York the size of Suffolk County had not had an emergency operations plan, or that they generally assumed that Suffolk County had an emergency operations plan.

Tr. 21660, 21663 (Axelrod): Tr. 21983 (Davidoff): Tr. 21760-761, 21765 (Germano); s__e_ e also Tr. 21232-235 (DeVito). SEMO director DeVito also acknowledged that he receives periodic reports from his staff as to the status of planning for counties in the State. Tr. 21130 (DeVito),

13. Mr. DeVito knew in 1987 that Suffolk County's emergency planning would be reviewed in 1988 under the federal Emergency Management Assistance Program, in accordance with a Comprehensive Cooperative Agreement.

Tr. 21234-235 (DeVito). Indeed, Mr. Germano stated that SEMO knew in  !

1985 that all counties in New York receiving or wishing to receive federal emergency planning funds must have their plans reviewed by SEMO by 1988 and brought into compliance. Tr. 21767 (Germano).

14.-

The SCEOP was apparently used by the State and County in responding to hurricane Gloria in the fall of 1985. j_ee Tr. 21622-623, 21660-661 (Axelrod); Axelrod Dep. Tr. 92; Devito Dep. Tr. 31-40 (Mr. DeVito l

l l

1

personally travelled to the forward EOC at the State office building in Hauppauge, in Suffolk County, during hurricane Gloria).

These facts are el record and speak for themst.lves. It is simply impossible for the State to credibly deny knowledge of the SCEOP until May 1988, whether or not any-one within the State physically had a copy of that plan. Se_e the State's Answers to LILCO's Second Set of Interrogatories (June 3,1988): Suffolk County's Answers to LILCO's Second Set of Interrogatories (Jene 3.1988). The State's responses to discovery improperly concealed that knowledge. They also impoperly concealed information on the role and functioning of SEMO, the agency responsible for reviewing the SCEOP.

B. The State Failed to Disclose, or Attempted to Explain Away, State Resources Capable of Being Deployed for Emergency Planning and Response at Shoreham State plans, procedures, and resources for emergency response were of central relevance under the NRC "realism" rule,10 C.F.R. S 50.47(c)(1), and this Board's deci-sions implementing that rule dated February h,1988 and April 8,1988. Those plans, procedures and resources were thus the core issues in discovery in this remand proceed-ing. To avoid revealing f acts and details concerning those resources, the State set up a complex chain of illogic which, as LILCO observed previously, caused the State (as well as the County) to go through the looking glass. LILCO's Brief on the Appropriate Rem-edy for the Intervenors' Failure to Comply With Board Orders (June 15,1988), page 3.

The State's reasoning, as articulated by Dr. Axelrod, went as follows: the State DPC "determined" at one of its meetings, "based on recommendations from staff," that emergency planning adequate to protect public health and safety at Shoreham is impos-sible, Tr. 21700-701 (Axelrod), Axelrod Dep. Tr. 29-32; therefore, the State has not adopted and will not adopt an emergency plan or engage in emergency planning for Shoreham, LILCO Disc. Ex. 34 (Axelrod preilled testimony dated April 13,1988), p. 3, and no County plan exists; the State will not implement the LILCO plan, coordinate

with LILCO, or apparently even talk to LILCO if an emergency occuN. LILCO Disc.

Ex. 34, p. 3, and will not even recognize the existence of the LILCO Plan, Axelrod Dep.

Tr. 65-68; therefore, there is no "site-specific" emergency response plan for Shoreham; and, therefore, it is "impossible" for even the Chairman of the DPC to "speculate" as to whether any of the States resources. even those delineated in detail in State plans, could be used t' respond to an emergency at Shoreham. Tr. 21648-650 (Axelrod); LILCO Disc. Ex. 34. p. 4; Axelrod Dep. Tr. 65-66.93-103.

Each step of this convoluted chain of reasoning is flawed, and its conclusion is not credible.' First, there was no DPC meeting at which the DPC "determined" that emergency planning adequate to protect public health and safety is impossible for Shoreham. Indeed, Dr. Axelrod filed an affidavit resisting discovery in this proceed- l ing in 1984. in which he stated that the DPC never convened a meeting to consider any plan for Shoreham. Tr. 21705-706 (Axelrod). Further, the recommendations of the i DPC staff as of that date were overwhelmingly positive. LILCO Disc. Exs. 51,52. Tr.

22040-041 (Davidoff), and would have resulted in the transmission of the 1982 LILCO emergency plan for Shoreham to FEMA for review and acceptance, LILCO Disc. Ex. 53;

_see Tr. 22041-043,220S6-067 (Davidoff).

Second, the LILCO Plan does exist. It is patterned on the same federal regula-tions and standards upon which the New York State REPP and seven other county plans in the State are built. It contains the "site-specific" information of which the State professes ignorance. The State assertedly maintained its professed ignorance by I

l J_2/ The only DPC consideration of emergency planning for Shoreham which was l proffered by the State consists of a few pages of the Stenographic Record of a DPC meeting on March 3,1983, at which Dr. Axelrod read to the DPC members Governor Cuomo's and Suffolk County Executive Cohalan's positions on Shoreham emergency planning as of that date. The DPC apparently did not vote, made no "determination",

and in f act made no response to Dr. Axelrod's reading of the position papers. LILCO I Disc. Ex. 37, admitted at Tr. 22038.

e w-- >w-c- -.-9 3 p -.-- - e. - % w.eqs se. -vy.-w

. *m-,g.1 --g. y*me--myw.--y w.q,v,,,s--g.- .. -a= w- wy .a-y4.---.y y----g-

l throwing away copies of successive revisions of the LILCO Plan, except for litigation purposes. E&, LILCO eisc. Ex. 34 (Axelrod prefiled testimony, Governor's Affidavit at pages '3-4).

Third, Article 2B recuires the State to have a plan for recponding to radiological accidents (SS 20(2)(a), 22)) and recuires that the plan (1) identify the resources, public

~

and private, for responding to such emergencies and (2) provide for their coordination.

S_ee, e&, Tr. 21636-21641 ( Axelrod). The State has assertedly dodged these require-ments of State law for Shoreham by claiming that it is not an operating plant. The' I

State cannot dodge these requirements if Shoreham is licensed to operate.

~

Fourth, and perhaps most important, the State plainly has extensive resources and response capabilities that could be used for a Shoreham emergency. The State's plans and procedures identify those resources and response capabilities in broad detail; documents produced to LILCO at the eleventh hour prior to the hearing on sanctions, including detailed notification procedures, EBS plans and other matters, flesh them out; and additional documents and facts, such as state agency standard operating procedures applicable to Suffolk County, undoubtedly exist, fee, R&, Attachment 4 hereto.

Dr. Axelrod acknowledged that the NYS DPP and the NYS REPP were issued pursuant to, and comply with, Article 2B, and that Article 2B requires detailed identification of l l

State resources for emergency responses, gge Tr. 21642, 21646-647 (Axelrod). Other docurrants, fee, g&, LILCO Disc. Ex. 5, as well as the working knowledge of State emergency planning and response personnel, can assist the deployment of these re-sources, Finally, the State also failed to disclose, and attempted to deny, State emergency planning capability when a county falls to adopt an emergency plan or employ it in an l l

exercise. The example of Rockland County shows that the State, when it wants to, can l compensate for the nonexistence of a county radlological plan for a nuclear plant by l

. - - - _ - - . _ _ - , , . - . , , , - , , . , a , .,.- ..,..-.c,-, -w ,y. ., , ., , . . - - - w .,,,.--w

(1) preparing or completing the preparation of such a local plan and (2) executing it successfully in a federally observed exercise. See, el, Tr. 21615-620 (Axelrod): Tr.

21989-991, (Davidoff); Tr. 20997 (Papile). But SE Papile, Czech, Baranski Dep. Tr.88-107. The State REPP contains a section for doing just this, LILCO Disc. Ex. 6, pp. III-18 to 111-19, but the State has denied that that section applies to Shoreham, Axelrod Dep.

Tr.86-89.

In short, the State's position in discovery, as well as on the merits, in this re-mand proceeding led it to deny, or attempt to explain away, facts that are or should be obvious 1o all.

C. The State Failed to Disclose, or Mischaracterized, Information That Was Inconsistent with The State's Position The State has played an elaborate shell game, particularly with respect to the State's ingestion pathway and recovery and reentry emergency response capabilities.

Messrs. Papile, Czech and Baranski of the State's REPG filed a lengthy and detailed af-fidavit, dated February 10, 1988. The Board, in its decision of February 29,1988, me-morialized in its memorandum of April 8,1988, relied heavily on the REPG affidavit in denying LILCO's Motion for Summary Disposition of the realism issues in this remand proceeding. Discovery revealed, finally, that substantial portions of that affidavit were misleading.

In this instance, however, the "failure to disclose" consisted primarily of sug-gesting in the REPG Affidavit that detailed plans, procedures and policies existed outside the NYS REPP, when discovery later revealed either (1) that such plans, proce- i l

dures and policies did not in fact exist or (2) that such procedures were generic, not l site-specific, and had not been revealed to LILCO.E# This maneuver obviously M/ The most striking example of the latter is the Germano memorar.dum on inges-tion pathway guidance, LILCO Disc. Ex. 5 (admitted at Tr. 21031), which is a self-l (footnote continued)

deflected the course of this remand proceeding in a substantial way, to the prejudice of the Board and, obviously, LILCO.

The course of this shell game can only be charted, tediously, by tracing  ;

i (1) statements in the REPG through (2) correspondMg interrogatories in LILCO's Second Set of Interrogatories to (3) answers to those specific interrogatories in the State's An-swers dated June 3,1988, an' d of ten thea comparing those answers to (4) other informa-tion not produced, or belatedly produced, to LILCO in discovery. _See. el, Tr. 21669 through 21691 (Axelrod). This tracing is set forth in Attachment 4 to this Brief illus-trated in some detail at the hearings and will not be repeated here.

The State, moreover, failed to put forward knowledgeable witnesses either in 1984, when it entered this proceeding, or in the remand proceeding in 1988. Several knowledgeable State witnesses, many of whom had reviewed a prior version of the LILCO Plan for Shoreham, were initially designated as witnesses for the State in 1984, but were abruptly withdrawr'. _See, e t , Tr. 22013-020 (Davidoff). Mr. Davidoff's professed lack of recollection of those events is surprising, since he was REPG Director during the Shoreham plan review in 1982 and must have ber.n consulted about testifying in 1984. See Tr. 21987-988, 22001 (Davidoff). Those witnesses were evidently with-drawn because their testi:nony, especially on cross-examination as to their review of the Shoreham plan and as to plans for other nuclear plants, would have undercut the State's arguments in the licensing proceeding.

(footnote continued) i described "procedure" for all operating nuclear plants in or near New York State and capable of being incorporated as an annex to county emergency operations plat's. -

LILCO Disc. Ex. 5, pages 1-2t Tr. 21776-777 (Germano). _See Tr. 21689 (Axelrod). Even REPG Director Papile said that this procedure could be adapted for essentially any county in the State. Tr. 21028 (Papile).

i 43- i In this remand proceeding in 1988, the State proffered only Dr. Axelrod's four pages of proposed testimony denying the existence of an emergency response plan for Shoreham, denying that the State would implement the LILCO Plan, and disclaiming any ability to identify any resources that might be used to respond to a Shoreham emer-gency. LILCO Disc. Ex. 34. The State proffered no other witnesses, despite the Board's previous reliance on the REPG Affidavit in denying LILCO summary disposition, and re-sisted producing any other State personnel (including the sponsors of the REPG Affida-vit) even for depositions. The reasons have now become obvious.

- D. The State Obstructed Discovery Procedurally The Intervenors took the position, on the merits and throughout discovery, that their word was the final word as to all substantive issues, defined by them, in the real-ism remand. They also stated emphatically that their position (e.g., "the State will not implement the LILCO Plan or cooperate with LILCO in an emergency at Shoreham")

was dispositive and not subject to question by the NRC or anyone else.b The State M/ "It is without dispute that New York State and Suffolk County have the exclusive and sovereign .iuthority to decide how they will act in response to nuclear puwer plant emergencies. The NRC has no authority to mandate how such governments will act.

The State of New York and Suffolk County have mude their decision for Shoreham."

Governments' Notice That The Board Has Precluded Continuation of the CLI-86-13 Re-mand (June 9,1988) fn, I at 3. "The Governments' decision as to what their best efforts would be is not subject to dispute, second guesses, or rejection by this Board. Neither the Board nor LILCO can speak for or bind the Governments as to their response to a i nuclear emergency or any other conduct within their sovereign powers. . . . [ T]his i Board has no authority to proclaim or otherwise decide that the Governments' response l would be anything other than what the Governments and their duly elected Chief Exec- l utives say." M. at 4. "And it would be inconsistent with the sovereign decision of the I government for this proceeding to go forward in the context of the Board's structuring l it to ignore the decision of the government." Tr. 20850 (Lanpher). "Our position is sim-ply this, the position of the government of Suffolk County, and I believe the New York shares the same one,it's categorically that there will not be an interface with the Long l Island Lighting Company. That there categorically, absolutely will not be an interface which has been expressed repeatedly in legally sustained daments upheld by NRC, the federal courts, Second Circuit Court of Appeals, the highest court of the State of New York. We cannot. We are categorically and inherently precluded from having witness-es sit on - in a deposition or on a witness stand explaining how there will be such an l

(footnote continued) l i

I

_ - , _ , , . _ . - . _ _ a -- a _._ ._ - , .-

1 l

put forth only Dr. Axelrod, and stated that the State was entitled to designate only that witness, who could speak "knowledgeably, authoritatively, and on behalf of the'(State]"

as to the issues in the remand proceeding. Tr. 21706-708 (Counsel for LILCO, quoting from a letter by Intervenors to the Board dated April 15, 1988). Based on this posture, the State repeatedly obstructed discovery by various procedural means, including the following:

1. The State produced no documents, substantive answers to in-terrogatories, or deponents (other than Dr. Axelrod) until it was ordered to do so. Indeed despite Board orders to the County in 1982 and 1983 and a Board order to the State in 1984, the State refused to produce any State emergency plans, or county plans possessed or by or known to the State, whether radiological or nonradiological. The State objected, across the board, to LILCO's Second Set of Interrogatories with respect to such plans. Even af ter the State was or-dered on May 10, 1988, to produce such plans, it refused for weeks to verify or authenticate even the most basic docu-ments: the NYS DPP and the 1987 revision of the NYS REPP; the State did so only on July 5, af ter being ordered specifically to do so. Despite LILCO's notices, no deponent, other than Dr. Axelrod, was proffered until the Board or-dered additional depositions.

(footnote continued) interface and providing substance to the interface which categorically will not be."

Tr. 20854-855 (Brown). See generally Governments' Objection To Portion Of i February 29 And April 8 Orders In The Realism Remand And Offer Of Proof (April 13, )

1988). i l

l l

l m, - , , - - - , - -

2. The State provided inadequate or late responses even af ter Board orders. The State sought an extension to answer LILCO's Second Set of Interrogatories. Af ter obtaining an extension, the State then objected and provided practically nothing. When ordered to provide responses May 10, 1988, the State delayed responding until a specific date was or-dered by the Board. When it responded, fr. accordance with that order, on June 3,1988, many responses were still eva-sive. As to depositions. those taken were arbitrarily trun-cated by the State 3_g/ and were loaded with objections by both the County's and the State's counsel. The Board recog-nized this obstruction in its rulings of May 10, and May 24, 1988.

3. This conduct forced further delay in setting a date for a hearing on the merits and resulted in further Board discov-ery orders.

4. When further depositions were ordered, the State, along with the County, refused to proceed. On June 10,1988, the State joined in the "Governments' Notice" which announced that the State could not and would not proceed with discovery on the merits. The Board, in the June 10 Teleconference, prop-l erly construed the County's position, and its adoption by the '

State, as a refusal to comply with Board discovery orders.

I l

l 31/ Of the State deponents initially noticed, LILCO was able to complete the depost-tion only of Donald DeVito, who professed ignorance of practically every substantive l matter.

l l

i

5. Af ter the Board determined to dismiss the realism conten-tions but to retain jurisdiction over discovery matters, the State joined in additional obstructive pleadings, including a "Motion to Vacate" and a "Motion for Stay." The State re-fused, in the interim, to comply with the Board's Order of June 17 to proceed with depositions.

6. The State then joined in the County's suggestion for a Board-conducted hearing. When the Board ordered such a hearing and ordered other specific items in connection with the hearings, the State engaged in a last-minute production of two large stacks of documents responsive to LILCO's Second Set of Interrogatories, evidently designed to avoid more se-vere sanctions. Thus, documents plainly responsive to LILCO's Interrogatories of March 24, 1988, were not pro-duced until about July 6,1988, af ter a long succession of Board Orders, aborted depositions, teleconferences with the Board, the Board's announcement that it had determined to dismiss the realism contentions, and LILCO's request for dis-l missal of the State entirely from the Shc.eham licensing I proceedings. Why weren't these documents found and pro-l duced earlier? Mr. Germano, for example, testifieci to at '

least two separate document searches within SEMO head-quarters in Albany, which apparently f ailed to revcal a copy l of the SCEOP which had been in SEMO's possession at least since May 6,1988. Tr. 21768-771 (Germano).

7. The State still falle<* to produce other documents in its pos-session which were responsive to LILCO's document request.

These included (1) the SEMO guidance document for inges-tion pathway responses prepared by Mr. Germano. LILCO Disc. Ex. 5, (seg Attaachment 4 to this brief): (2) the 1987 DOE Brookhaven National Laboratory Plan, LILCO Disc. Ex.

43; and perhaps standard operating procedures for various state agencies, including the Department of Health, if they exist, as the REPG Affidavit asserted s_e_e Tr. 22.061-062 (Davidoff) (see Attachment 4 to this brief. LILCO does not know whether other responsive documents may not have been produced, since the State still maintains that the guld-ance document prepared by Mr. Germano is not responsive to LILCO's requests (in spite of what the document cays, Dr. Axelrod's recognition of it as a generic procedure appil-cable to plants identified in LILCO Interrogatory No. 50, Tr.

21689 (Axelrod), and Mr. Papile's recognition that it applied to any county in the State. Tr. 21028 (Papile)).

8. The State's obstructionism continued at the hearings before the Board in Bethesda, Maryland. The State defied a Board order to bring Dr. Axelrod to the hearing, and produced him only under subpoena. The State lodged many objections, or supported objections by the County's counsel, during the course of the hearings. The Board commented on this ob-struction at points in the hearing. h, Tr. 21091-092, 21615-616, 21631, 21711 (Chairman Gleason).

__-~ _ __ __ _ _ _ _ _ _ - .

These procedural maneuvers substantially, and unwarrantably, deflected and de-layed the course of t% $horeham licensing proceeding. They did so at a critical junc-ture in these proceedings, and at an even more critical time for LILCO. All of this warrants dismissal of the State from these proceedings.

E. The State's Policy On Shoreham Includes Preventing Emergency Planning in Compliance With Federal Health And Safety Standards Dr. Axelrod attempted to maintain the position that the State had made a bona fide "dete*mination", through its expert agency the DPC based on recommendations from the REPG staff, that emergency planning adequate to protect public health and safety is imposcible for Shoreham. S_ee, e&, Tr. 21699,21710 (Axelrod). This position, which was articulated in response to LILCO's inquiries in discovery concerning the State's resources under its emergency plans, led to unassailable proof that the State's policy has gone well beyond an act of judgment. It has involved affirmative steps to prevent effective emergency planning for Shoreham in compliance with federal re-quirements for the protection of public health and safety.

The State apparently destroyed or retrieved successive revisions of the LILCO Plan from recipients within the State government, solely so the State could argue that it had no knowledge of the LILCO Plan and thus could not implement it (though se-lected State witnesses knew enough to challenge its adequacy in these proceedings).

S_ee, el, Affidavit of Governor Mario M. Cuomo, pages 3-4, attached and made apart of Dr. Axelrod's proposed testimony in this remand proceeding, LILCO Disc. Ex. 34 (ad-mitted Tr. 21635).

The State deliberately disconnected the Radiological Emergency Communication System (RECS) lines between Shoreham and the State. To prove that a LILCO/ State communications interf ace was feasible, LILCO filed interrogatories asking, inter alla, whether the State would reconnect the lines or permit LILCO to do so. LILCO Disc.

Ex. 29, Interrogatory No.11. The State responded to the interrogatory by saying only

- _ .- - ~ . _ _ . . - . _ _ _ _ . _ _

49 that it would not follow or implement ?he LILCO Plan or coordinate with LILCO in the event 'of an emergency. Governments' Answers and Additional Objections to LILCO's Second Set of laterrogatories Regarding Contentions 1-2, 4-8 and 10 (April 22,1988);

L Tr. 21713-715. Dr. Axelrod attempted to explain that this was done because the lines -

were not needed since there was no plan for Shoreham. Tr. 21711-712 ( Axelrod). When 1 confronted, however, he could not deny that he prepared a memorandum in 1985. In re- '

sponse to a letter from LILCO, which (1) acknowledged that the RECS lines had been 4

disconnected "on the advice of counsel" in con'necticn with litigation with LILCO, (2) that the disconnection of the !!nes placed the State in a "vulnerable situation for emergency notification" as LILCO approached fuel loading and cold criticality testing, and (3) that Dr. Axelrod thus recommended that the RECS liries be reconnected. LILCO Disc. Ex. 41, admitted Tr.21718. The undeniable implications, which were not t.llayed by any redirect examination, are two-fold: first, that the lines would in fact be reconnected if Shoreham were licensed to operate at full power and, second, that the lines were disconnected ori the advice of counse; solely for the purpose of arguing in l

'this proceeding that LILCO could r.ot communicate or coordinate with :he State in the event of an emergency at Shoreham.

Finally, Mr. Davidoff acknowledgea that the REPG staff was "cautioned to be very careful in our work on the license (sic) sites ((.g., on plans for licensed plants]

not to take a position that would be contrary to the Governor's position on Shoreham."

Tr. 22066 (Davidoff). This acknowledgment provides clear insight into why the State has so stolidly resisted producing information about emergency plans for nuclear plantF '

other than Shoreham, and even plans for nonradiological emergencies. It reveals, as other facts have, the State's policy since 1983 to warit off an operating !! cense for  ;

Shoreham by holding Shoreham to standarde not present in federal regulations and not applied to any other nuclear plant in or Nar the State of New York. The February 10

~ - _J

j REPG Affidavit, upon which the Board relied in denying LILCO Summary Disposition.

and the disintegration of that affidavit through discovery, is yet another manifestation of that policy.

In sum, not only the State's means of avoiding discovery, but much of its un-derlying rationallae, have come to the surface through these proceedings. They reveal an approach to litigation incompatible with responsible participation by a major gov-ernment on a serious public matter.

5. Intervenors' Course of Conduct on Discovery Has Been Sufficiently Pervasive, Systematic and Serious to Commend Dismissing Their Realism Contentions on the Merits, But also Dismissing Them as Parties to This Proceeding The Board is empowered by the Commission to enforce the good order and disci-pline of proceedings by any of a variety of means. Statement of Policy on Conduct of Licensing Proceedings, CLI-31-8.13 NRC 452 (1981), (hereinaf ter, "Statement o' u-cy"). This includes the pcwer to dismiss issues or contentions and, in severe cases, the power to dismiss parties nVm a proceeding. Id. at 454. As is demonstrated in this and preceding pleadings, dismissal of the "realism /best' efforts" contentions is overwhelm-ingly supported in this record. In addition, LILCO believes that the history of conceal-ment, denial, footdragging and diversion which have characterized discovery in this proceeding justify the severe sanction of dismissal of Interveras Suffolk County and New York State from this proceeding.

As demon:trated in Parts 3 and 4, above, ar).r as the Board has remarked (Tr.

19381), Suffolk County and the State of New York aave engaged in a six-year long delib-erate, systematic tactic of frustrating and defer. ting the legitimate discovery efforts of LILCO. This "deliberate tactical intransigence" flies in the face of the cbligation of 16 / Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Coro., 602 l F.2d 1062 (2d Cir.1973). See, fn. 4 intra.

l l

I l

1

good faith that undergirds any discovery processE and, indeed, in the f ace of express Commission policy. ("The Commission again endorses the policy of voluntary discov- >

ery. . . ." Statement of Polley, id. at 456.

The remaining question under the Statement of Policy, therefore, is the severity of the sanctions to be imposed. That determination is made by examining the Interve-nors' conduct against six standards:

1. the relative importance of Intervenors' unmet obliga-tions;

2. the potential of their def alcations for harm to ine other parties;

3. the potential of their defalcations for har.n to the or-derly conduct of the licensing proceeding; L whether this occurrence is an isolated incident or a part os a prtern of behavior; s

5. the importance of the safety or environmental con-cerns,and

6. the totality of the circumstances.

These will be briefly examined below, with referencos to their fuller initial treatment in LILCO's June 15 Brief on the Appropriate Remedy for Intervenors' Failure to Comply With Discovery Orders. The facts supporting the arguments here are set forth in the totality of this brief, and will not be repeated here in depth. .

A. Unmet Obligations The hatory of the Intervenors' discovery responses can charitably be described as recalcitrant, delayed, grudging, incomplete, artful and inaccurate. It has been a total and systematic failure to meet any obligation of discovery, much less one of good l l

faith "voluntary discovery" encouraged by the Commission's Statement of Polley. This  ;

M/ Hindmon v. National-Ben Franklin Life Ins. Co. 677 F.2d 617,620 (7th Cir.1982) and Asea v. Southern Pacific Transportation Co.,669 F.2d 1242,1246 (9th Cir.1981).

, - . - . - - - , - .. y , --- -.gg - - -

B factor is central to the determination of approprtite sanctions. Here, where LILCO's ultimate emergency planning burden has involved, in varying forms, establishing the nature of the response'of powerful, hostile governments to an emergency, the refusal of those governments to be forthcoming drastically effects the course of the proceeding.

Indeed, the effect here is perhaps unique in NRC proceedings, since it is those govern-ments, rather than the Applicant or the NRC Staff, that possess that information.

Thus the abuse of discovery on this issue has an unparallelled potential to disrupt or de~

stroy a proceeding. The fact that this proceeding has been in continuous litigation for six years - three of them since the Licensing Board found no impediment to adequate emergency planning except governmental hostility, s_ee LBP-85-32, 22 NRC 410, 427 (1985)- vividly demonstrates the effectiveness of that opposition. Where that opposi-tion has been abusive, as LILCO believes it has been, severe sanctions are warranted.

_See also LILCO's June 15 Brief at 12-13.

B. Potential For Harm to the Other Parties Harm has already occurred. Had Suffolk County and New York State timely and properly disclosed the existence of the myriad of resources and documents de-monstrating their ability to rerpond to natural and man-made disasters, years of expenses of time and money incurred by this Board, LILCO, FEMA and the Staff would have been dramatically pruned. The detailed facts necessary to present the realism ar-gument presuasively would have been avaDable years earlier. This proceed.ing might well have been long finished, and the subsequent political and financial controversy that has imperiled both the Shoreham plant and LILCO's corporate existence cut short years earlier. See also LILCO's June 15 brief at 13-14.

C. Potential for Harm to the Boastfs Process Harm has already occurred. The efficacy of any tribunal depends on its ability to order its own processes and the good faith adherence to them by the parties to the

l 53- '

proceedings. The systematic intractability of the Intervenors makes mockery of these fundamental precepts and, if disregarded, will stand as a signal to others that desperate measures can succeed. $_ee_ also LILCO's June 15 Brief at 14-15.

D. Pattern of behavior The recitations in Parts 3 and 4 do not bear reiteration. Intervenors' conduct is no isolated occurrence. It is, as already noted, a pattern of unrelenting intransigence.

Systematic misconduct requires different, more severe sanctions than do isolated in-f ractions. S_ee also LILCO's June 15 Brief at l'5-17.

E. Importance of Safety or Environmental Concerns it scarcely needs comment that demonstration of emergency preparedness is of utmost importance in this or any Operating License proceeding, and that compilation of

, an adequate record is central to that task. When discovery has been thwarted, particu-larly in the unique environment of this case, the entire process is imperiled. See also LILCO's June 15 Brief at 17-19.

F. Totality of the Circumstance What has been revealed of late is the fundamental strategy of the Intervenors to delay the issuance of the operating license by all available means to the point of defeat, and thus prevent the operation of Shoreham. I In fashioning a sanction, the Statement of Policy indicates that the Board should respond in a measured fashion and tailor a sanction that would mitigate the harm and bring about improved compliance. The aspirations in such a policy for "improved com-pliance" by these Intervenors, af ter six years, must be regarded as forlorn. Improved l compliance for them would mean nothing less than abandoning their entire strategy.E/ An illustration of this point is the fact that during the four-day hearing conclud-ed on July 19, 1988. Suffo,"( County made 225 separate objections over 1108 pages of transcript; the State of New York made 53. And the bulk of these objections were , made in the face of repeated admonitions that they were unnecessary, ill-advised and ' oftensive.

i i l The relevant inquiry, then, is what sanction may be tailored to mitigate the harm that I has been inflicted in the time, money and resources of this Board and the Commission tribunals, LILCO, FEMA and the' Staff, as well as the harm that has been inflicted on the integrity of the Board processes. Given the systematic egregiousness of the Intervenors' conduct, LILCO submits that dismissal of the Intervenors as parties is the only appropriate sanction. Though re-versed on the issue of severity, the Appeal Board in Commonwealth Edison Cornpany (Byron Nuclear Power Station Units 1 and 2), ALAB-678,15 NRC 1400 (1982)lef t intact the Licensing Board's principle that: Where a party's derelictions of duty concerning the fur-nishing of ordered discovery were a pattern of behavior rather than isolated incidents, such conduct resulted in the striking of all its contentions and its dismissal as a party.... Commonwealth Edisen Company (Bryon Station, Units 1 and 2), LBP-81-52,14 NRC 901, 902 (1981) (emphasis added). The rationale for such a severe sanction - the deterrence of others who "might be tempted to such conduct" - was approved by the Supreme Court of the United States in National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976k There is a natural tendency on the part of reviewing courts, properly employing the benefit of hindsight, to be heavily influenced by the severity of outright dismissal as a sanction for failure to comply with a discovery order. . . . But here, as in other areas of the law, the most severe in the spectrum  ! of sanctions must be available . . . in appropriate cases, not ' merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent. 32/ Discovery under the NRC Rules of Practice is sufficiently similar to that under the Federal Rules of Civil Procedure to permit this Board to look to federal court cases  ! for guidance. Consumers Power Co. (Midland Plant Units 1 and 2), ALAB-379,5 NRC l 565, 568 n.13 (1977). See, Dignan and Gad, NRC Practice and Prncedure, Part D.B.1. . (1987). See also Weisberg v. Webster, 749 F.2d 864 (D.C. Cir.1984); Cine Forty-Second l Street Theatre Corp. v. Allied Artists Pictures Coro.,602 F.2d 1062 (2d Cir.1979); and Dellums v. Powell,566 F.2d 231 (D.C. Cir.1977). 1

                   . . -              .                                               . ~.-..- . . . . -                                                                                                                                              . -. . ..

'l

                           '427 U.S. 639, 643.

l If there has ever been an instance in this agency's hit tory of institutionalized frustration of its process by entitles which are responsibl';, powerful and determined, the six-year emergency planning conflict over Shoreham has been it. The intertwined refusals of Suffolk County and New York State either to plan for Shoreham or to reveal  ; a what plans and resources would or could be made available in fact if others sem able to establish the basic feasibility of planning, has turned what is normally a cooperative ef- ' fort (one in which the State and County cooperated in fact for over a decade) into a conflict which has stalemated an agency process, overthrown a local government. near- , ly bankrupted a utility company. The impropriety of these governments' refusals to 4 , provide this information is plain and inescapable. This disastrous scenario is capable of , repetition any time a State and a locality decide, for whatever reasons, to oppose a nu-  ! clear power plant. While that opposition is not illegitimate, the less than candid ap-proach of these parties to discovery in this proceeding, where they themselves held all the cards, is illegitimate. It should not be condoned. The only effective deterrence is i shown by the ultimate sanction for failure to abide by the rules: dismissal from the pro-  : eeeding.

                                                                                                                                                                                                                                                                ~

j f I 4 5 0 t

   - _ _ _ _ _ _ _                   ______________.______._______________._______m__                             _ _ _ _ _ _ _ _ _ _ . _ . . . _ _ _ _ _ _ _ _ _ . _ . _ . _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

_ CONCLUSION For the reasons documented above and in the Attachments to this brief, the Board should reaffirm its dismissal of the realism /best efforts contentions. It should also dismiss Suffolk County and New York State as parties to this proceeding for sys-tamatic abuse of the Commission's discovery process. Respectf ully submitted, ll M i. Y% ~ DorTald P. Itwin Joseph M. Spivey, III James N. Christman K. Dennis Sisk Counsel for Long Island Lighting Company Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: July 26,1988 1

                                                                                                                                                                                                                                                                                                       \
                                                                                                                                                                                                                                                                                                       \

1 i

e- m eM mee -. W ww &e 8 dM emmt4.e a-***e - e e h ATTACHMENT 1

    ..____ _ _ _ - , .. _ .. .__ _ . _ .__                    , ,,_._____,_,, ,_ _ _. , , , ,_, _ _, - _ . ,         , -   - _ , , , _ , y ._, ._.-. .-,. _ ,_ ,-.m-, ,_,____ _ .. ._. , ,

Attachment 1 l

                                                                                   ^

i LIST OF WITNESSES l l SUFFOLK COUNTY l l Suffolk County presented the following witnesses: Witness Position Tr. Location i John B. Bilello Acting Director, Department 21443 of Emergency Preparedness, County of Suffolk Frank R. Jones Supervisor, Town of Islip; 21835 former Deputy County ~ Executive, County of Suffolk Richard W. Jones Radiological Defense Officer, 21315 Division of Emergency Preparedness, County of Suffolk Frank R. Petrone Acting Commissioner, Department 21503 of Fire, Rescue and Emergency Services, County of Suffolk William E. Regan Assistant Director of Public 21877 Safety, Town of Brookhaven; former Director, Department of Emergency Preparedness, County of Suffolk Robert J. Sheppard Radiation Control Officer, 21915 Department of Fealth, County of Suffolk; Liaison Officer, Department of Emergency Preparedness, County of Suffolk I l I l l l l l 1 l

                           ----_---_.__-___-_____________-_---____-____.-_.__0

NEW YORK STATB New York State presented the following witnesses: Witness Position Tr. Location David Axelrod New York State Commissioner of 21603 Health and Chairman of the Disaster Preparedness-Commission Donald Davidoff Director, teld Operations 21981 Management Group, New York State Department of Health Donald A. DeVito Director, State Emergency 21096 Management Office (SEMO), State of New York Anthony J. Germano Chief of Staff, State . 21729 Emergency Management Office (SEMC), State of New York James D. Papile Director, Radiological Emergency 20962 Preparedness Group (REPG), State of New York l t

                                                                                             )

LILCO LILCO presented the following witness: Witness Position Tr. 'ocation Norman Kelly Associate Emergency Planner, 21544 , Long Island Lighting Company. l I i l I i

i e

e I I l . i _ _ _ . _ _ _ _ - - - _ _ - , _ - ~ . _ - . . _ _ . _ _ _ _ _ _ _ _ . . _ , _ _ _ _ _ , - _ _. _ , _ . . . _ - _ _ . , _ . _ _ . - _ .

   -am *,& 4 mw n 4m n e

a ATTACHMENT 2 l l 1 i I i i e

Att"chment 2 DISCOVERY EXHIBITS BY PARTY AND NUMBER LILCO Discovery Exhibit Identified at Admitted at Number Description Transcript Pg. Transcript Pg. 1 New York State Disaster Preparedness 20987 20990 Plan (Revised 9/82) 2 Memorandum f rom Czech to Regan re 2C999 Fisher's Island Plan (7/21/87) 3 Affidavit of James D. Papile, James 21003 previously C. Baranski and Lawrence B. Czech admitted before the Atomic Safety and Licens- 1 ing Board (2/10/88) 4 Presentation on R.E. Ginna Ingestion 21019 Pathway Exercise by Burke, Czech and Watts (10/25/87) 5 Memorandum from Anthony J. Germano 21026 21031 to County Emergency Managers ret Local Government Planning Guidance for Radiological Ingestion Exposure Pathway (8/27/76) 6 New York State Radiological Emergen- 21035 21793 cy Preparedness Plan for Commercial l Power Plants prepared for the Disas-ter Preparedness Commission for the State of New York by the Ra-diological Emergency Preparedness Group (4/87)  ! 7 Bureau of Environmental Radiation 21057 21063 Protection (New York State Depart-ment of Health) Procedure for Ra-diological Emergencies (10/11/84) 8 State of New York's Response to 21083 21696 LILCO's Second Set of Interrogato-rios Regarding Contentions 1-2, 4-8 and 10 (6/3/88) 9 County of Suffolk Emergency Op- 21139 21144 erations Plan (produced to LILCO 5/25/88)

Discovery Exhibit Identified at Admitted et I Number Description Transcript Pg. Transcript Pg. 10 County of Suffolk Emergency Op- 21146 21143, erations Plan (produced to LILCO 21147, l 7/8/88) 213172/ 11 Suffolk County Emergency Directory, 21154 21157, 21492 redacted (revised 8/87) 12 Suffolk County Emergency Directory 21160 I (revised 3/80) l 13 Suffolk County resource information 21205 1 concerning emergency patient air- j lif ts, contacts, emergency equip- ' ment, emergency broadcast proce- , dures, telephone directory and other J emergency information (various dates) j 14 New York State Emergency Management 21211 21211 Office's Emergency Operations Tele-phone Directory (2/1/87) 15 Letter from Jerry Horton to William 21212 21907 Regan re Coments by the CDP Pro-gramming and Planning Section about the 1/1/81 Suffalk County Disaster . Preparedness Plan (5/1/81) l 16 New York's Response to LILCO's Third 21221 22050 Set of Interrogatories and Requests for Production of Documents Re-garding Cor.tentions 1-2, 4-8 and 10 to Suffolk County, New York State and Town of Southhampton (7/5/88) 17 Government's Response to Board Order 21225 of 6/24/88 (6/28/88) 18 Transcript of Deposition of Donald 21231 DeVito (4/29/88) I/ Exhibit 10 was moved for admission into evidence by LILC0 on June 11 (Tr. 21143, 21147), but Judge Gleason agreed with Suffolk County to wait for the testimony of Richard Jones on June 12. Tr. 21147. Mr. Richard Jones authenticated Exhibit 10 (Tr. 21317-325), l but the document was inadvertently not admitted into evidence at that time. l

Discovery Exhibit Idaitified at Admitted et i Number Descriptieg Transcript Pg. Transcript Pg. 19 New York State Disaster Preparedness 21242 Commission Guide to Local Government Disaster Planning (undated) 20 Guide For Preparing A Comprehensive 21263 Emergency Management Plan in New Yor,k, SFNO (2/86) 21 The Basic Plan Component of A County 21243 Comprehensive Emergency Management Plan including Prototype of Standard Format in New York State, SEMO (2/86) 22 Annex B, Local Radiological Protec- 21250 tion Annex to Exh. 21 (revised 12/86) 23 FEMA Guide for Development of State 21252 and Local Emergency Operations Plans CPG l-8 (10/85) 24 FEMA Guide for Review of State and 21252 Local Emergency Operations Plans CPG 1-8A (10/83) 25 Radiological Intelligence Manual - 21260 21412-4152/ Annex K to the Emergency operations Plan of New York State (revised 8/76) 26 Emergency Communications Development 21264 Plan for the County of Suffolk, New I York (sutxcitted 10/25/78 and re- I viewed 11/2/78) 27 Letter from Jessine A. Monaghan to 21360 22074 Karla J. Letsche re Informal Dis-covery Requests (6/29/83) . 28 Letter from Jessine A. Monaghan to 21360 22074 John E. Birkenheier re: Informal Discovery Request of 7/21/83 (7/21/83) 1

 !/    RichardJonesauthenticatedEx$1 bit 25andtestifiedthatitispartoftheSuffolk County Emergency Operations Plan (Exhibits 9, 10). Tr. 21$12-415.

Discovery Exhibit Identified at Admitted Ct Number Description Transcript Pg. Transcript Pg. 29 LILCO's Second Set of Interrogato- 21396 22074 rios and Requests for Production of Documents Regarding Contentions 1-2, 4-8, and 10 to Suffolk County, New York State and Town of Southampton (3/24/88) 30 LILCO's Third Set of Interrogatories 21396 22074 and Requests for Production of Docu-ments Regarding Contentions 1-2, 4-8 and 10 to Suffolk County, New York , State and Town of Southampton , (6/7/88) 31 Emergency Broadcast System (EBS) 21424 21424 Procedures For the Nassau and Suffolk Counties New York EBS Opera-tional Area (no date) J 32 Nuclear Incident Reports on North- 21440 21441 east Utilities Forms Concerning Millstone Units (various dates) 33 State of Connecticut's Radiological 21436 Emergency Response Plan, Annex V, 100 series (8/85) 34 Direct Testimony of David Axelrod on 21626 21635 Behalf of the State of New York (4/13/88) 35 New York Executive Law Article 2-B, 21636 l State and Local Natural and Man-Made { Disaster Preparedness (no date) l 36 Transcript of Deposition of David Axelrod (4/22/88) 37 The Stenographic Record, Proceedings 21702 22038 in the Matter of a Meeting of the New York State Disaster Preparedness Commission {3/2/83) l 38 Affidavit of David Axelrod, M.D., 21704 Chairman of the New York State Di- i saster Preparedness Commission, in l Opposition to LILCO's Motion to Com-pol Expedited Production of Docu~ i ments by New York State (2/27/84) i 1

1 l Discov;ry Exhibit- Id;ntified et Admitted at Ng ter Description Transcript Pg. Transcript Pg. 39 Governments' Answer and Additiona; 21713 i Objections to L'aLCO's Second Set of l Interrogatories Regarding Conten- I tions 1-2, 4-8 and 10 (4/22/88) I 40 Letter from John D. Leonard (LILCO) 21716 to Dr. David Axelrod re: State and County Notification in the Event of an Emergency (12/21/84) 41 Memorandum from Dr. Devid Axelrod to 21717 21718 Mr. Del Giudice re: LILCO Emergency Notification (1/6/85) 42 Letter from Donald A. DeV1.to to the 21801 Honorable Leslie Fitzwater (Yates County) re: Development of Emergen-cy Plans and other Federal Require-ments including Agenda for 6/18/87 Ingestion Pathway Public Awareness Meeting (6/1/87) , 43 Brookhaven Natic.21 Laboratory Emer- 21807 gency Response Plan (revised 7/87) 44 Letter from William E. Regan to 21897 21899 Frank R. Jones re: Request from Patricia Dempsey for Emergency Plan-ning Documents (7/23/82) 45 Memorandum from Mr. Robert Sheppard 21947 to Mahfouz Zaki, M.D. re: 9/5/81 Radiological Emergency Report (9/16/81) 46 Standard Operating Procedures for 21953 Suffolk NAWAS Warning Point (9/78) 47 Memorandum from Donald Davidoff to 22009 REPG Staff re Assignments for Shoreham Local Plan Review (5/17/82) 48 Letter from Fabian G. Palomino to 22018 Donald Irwin re: List of REPG Peo-ple Available to be Deposed (2/6/84) 1 1 l l

     , _ . .               ,- -.    . ~ . .. _ . _ ... - -     _, . _ _ - .        .        _       . , _ , , - ~ - . . .

Discovery Exhibit Identified ct Admitted Et Number Description Transcript Pg. Transcript'Pg. 49 Letter from Fabian G. Palomino to 22019 Donald Irwin re Testimony on Group II Contentions (2/10/84) 50 Letter from William C. Hennessy to 22025 Matthew C. Cordaro, .Ph.D. re Re-ceipt of 5/10/82 Letter and Staff Review of Local Plan (5/17/82) 51 Memorandum from Larry Czech to 22040 22046 Donald Davidoff rei Status of Shoreham Local Plan as of 11/23/62 (11/24/82) 52 Disaster Preparedness Commission Re- 22040 22046 view of Shoreham Offsite Emergency Plan (no date) 53 State of New York Motion to Dismiss 22041 22046 on Grounds of Objections in Point of Law and accompanying Affidavit of Donald S. Davidoff (12/lC/82) 54 Letter from Richard J. Zahnleuter to 22071 22071 1 Ca.nnis Sisk re: Response to Request for SEMO Internal Listing of Germano documents (7/18/88) i i I l 1

a - SUFFOLK COUNTY Discovery Exhibit Identified at Admitted At Number Description Transcript Pg. Transcript Pg. 1 Index of Suffolk County Documents 21333 21342 Provided 8/2/82, Emergency Planning Documents List Provided - Phase II, 1/1/81 Suffolk County Disaster Pre-paredness Plan, 8/80 Flood Disastel Plan - Moriches Inlet Area, Activation Plan of County Emergency Operating Center, Emergency Pre-paredness Plan for Suffolk County Sheriff's Office, Hurricane Disaster Plan for Fire Island - Fire Service, 10/1/81 Emergency Operations Plan, Police Department of Suffolk County Emergency Plan, Procedures for Natu-ral and Man-made Disasters and Nu-clear Attack for Suffolk County, Suffolk County Emergency Directory _. _ _ _ , . - . __ _ _ , ~ _ . _ . - _ _ .

FEMA l Discovery Exhibit Identified at Admitted At Number Description Transcript Pg. Transcript Pg. 1 FEMA Directory of Governors and 21726 State Officials Responsible For Di-saster Operations ~and Emergency Planning, FEMA 9 (5/88) . 1 l

.a l I 1 J b ATTACHMENT 3 4 l 1 l I l l f l

Attacharnt 3 SPECIFIC INSTANCES OF DISCOVERY ABUSE BY SUFFOLK COUNTY I. Document Production A. Nonproduction of Suffolk County Emergency Operations Plan

1. June 2 1982: LILCO serves its First Request to Suffolk County for Production of Emergency Planning Documents. Request No.19 asks for "all documents pertaining to the County's plan or plans for dealing with emergencies that do not involve nucl?ar power."

2. July 1. 1982: Suffolk County files its Response to LILCO's First Request to Suffolk County for Prode -

tion of Emergency Planning Documents. The Cou 4ty objects to LILCO's requests as "irrelevant."

3. July 27. 1982: Prehearing Conference Order (Phase I - Emergency Planning). The Licensing Board orders Suffolk County to produce all existing emergency documents, including non-nuclear emergency planning materials.

4. August.1982: Suffolk County produces various emer-gency planning documents but not the integrated Emergency Operations Plan.

5. June. 2.1. 1983: During "Phase II" discovery LILCO again requests "all documents pertaining to the Coun-ty's organization for coping with emergencies that do j not involve nuclear power."  ;

6. August 22, 1583: Suffolk County objects to LILCO's  !

June 21 discovery requests on relevance grounds.

7. September-October. 1983: Suffolk County provides various emergency plann'ng documents but not the integrated Emergency Oper tions Plan.

8. March 24.1988: LILCO files its Second Set of Inter-rogatories and Requests for Production of Documents Regarding Contentions 1-2, 4-8 and 10 to Suffolk County, New York State, and the Town of Southampton.

9. April 10.1988: Suffolk County files Objections to LILCO's Second Set of Interrogatories Regarding Con-tentions 1-2, 4-8, and 10 ".d refuses to produce documents pertaining to non. :Jiological emergencies.

10. May 10.1988: At Prehearing Conference, Board or-ders Suffolk County to produce all documents respon-sive to LILCO's March 24 interrogatories.

11. May 24.' 1988: Letter from Lawrence Coe La 'pher to K. Dennis Sisk informing LILCO that the Cc; nty has provided counsel for the County a document entitled "County of Suffolk Emergency Operations Plan."

12. May 25,1988: Letter from Lanpher to Sisk enclosing Emergency Operations Plan.

B. Late Production of Documents

1. July 8.1988: Letter from Lanpher to Sisk enclosing copies of the following documents:

a. Updated version of the Suffolk County Emer-gency Operations Plan.

b. Suffolk County Resource Manual.

c. Corrected ccpy of Emergency Preparedness Operational Plan for Plum Island (1980).

2. July 6.1988: Letter from Lanpher to Sisk enclosing copies of the following docLments:

a. Annex B (Local Radiological Protection A nnex).

b. Police Department Annex to Suffolk County Department of Emergeacy Preparedness Plan for a radiological disaster at specified sites (1975).

c. New York State Department of Health Stan-dard Operating Procedures for Indian Point Site (1975).

d. New York State Department of Health Stan-dard Operating Procedures for Nine Mile Point Site (undated).

e. New York State Department of Health Stan-dard Operating Procedures for Ginna Site (1974).

f. Wayne County Radiological Emergency Re-sponse Plan (1977).

l

g. Radiation Emergency Plan, Oyster Creek (Jersey Central Power & Light)(undated).

h. Oswego County Radiological Emergency Re-sponse Plan (1978).

1. Westchester County Radiological Emergency Response Plan (1977). .

J. Emergency Preparedness Operational Plan for Plum Island (1980).

k. - Northeast Utilities Nuclear Incident Reports for Millstone site (completed by personnel from Suffolk County Division of Emergency Preparedness) (1982-88).

1. Emergency Procedures for Nine Mile Point /J. A. Fitzpatrick sites (1972).

m. Table 401.2-C-1 (notification with respect to Waterford Emergency Communications Center)

(1977).

n. Nassau County Emergency Plan, Annex E, Med-ical Service (1974).

o. Nassau County Disaster Control Procedure (1975).

p. Nassau County Emergency Plan (1963).

. q. Monroe County Emergency Response Plan (1985).

r. Suffolk County Police Department Procedures l for "Assemblages and Emergencies"(undated).

{

s. Proposed Changes to New York State Depart-ment of Health Standard Operating Procedures  !

for Shoreham (1975). l

3. June 1.1988: Letter from Lanpher to Sisk enclosing l the following documents:

a. Annex K (Radiological Intelligence Annex) j (1976). .

l

b. New York State Department of Health Stan-dard Operating Procedures for Brookhaven Na-tional Laboratory (1973).

C. Bad Faith Relevance Objections to Discoverv Reouests

1. Phase I Document Discovery County Claims Irrelevance Board Cornoels Production Soffolk County's Response to Prehearing Conference Order LILCO's First Request to Suffolk (Phase I - Emergency Planning)

County for Production of Emer- (July 27,1982) gency Planning Documents (July 1,1982)

2. Phase II Document Discovery County Claims Irrelevance Outcome Suffolk County's Response to County produces documents LILCO's Informal Discovery Re- af ter LILCO notifies Board on quests for July 21,1983 September 23,1983 that it in-(August 22, 1983). tends to move to compel.

Suffolk County's Responses to LILCO Requests of August 8, 1983 (August 31, 1983).

3. "Realism" Document Discovery County Claims Irrelevance Board Compels Production Government's Objections to In Memorandum (April 8,1988),

LILCO's Second Set of Interrog- the Board states that one of the atories Regarding Contentions "genuine issues" to be heard is 1-2, 4-8, and 10 (April 20,1988) the "relevance of emergency plans in other areas of other New York State nuclear f acill-ties." Memorandum at 54.) Prehearing Conference (May 10, 1988) (Tr.19382).

4. Hearings on "Integrity of the Proceeding" Issue In four days of hearings and 1108 pages of transcripts, there were 278 objections by Suffolk' County and/or the State of New York. The vast majority of these objections were on the basis of relevance /outside the .

scope of the proceeding.

I l

    !!. Witnesses /Deoonents                                                                 i 1

A. Refusal to Produce Deponents on Realism Issue  !

1. April 5.1988: LILCO notices five County employees I for deposition,

a. Richard C. Roberts for 4/11/88.

b. Daniel P. Guido for 4/11/88. l

c. Frank P. Petrone for 4/14/88.

d. David E. Harris for 4/15/88.

e. William E. Regan for 4/15/88.

2. April 6,1988: County informs the Board that the five noticed depont..its cannot be made available prior to week of 4/18/88. S_ee e Governments' Motion for Ex-tension of Time to Respond to Realism Discovery Re-quests, and to Extend Discovery Schedule at 10.

3. A pril 7.1988: LILCO moves the Board to compel dep-ositions noticed on April 5. LILCO's Response to "Governments' Motion for Extension of Time to Re-spond to Realism Discovery Requests. and to Extend Discovery Schedule" and Request for Additional Re-lief at 12.

4. April 12.1988: Board orders that "all persons previ-ously or subsequently noticed by any party will be made available for deposition purposes in time for such discovery to be completed by April 22." Con-firmatory Memorandum and Order at 2.

5. April 15.1988: Letter from Lanpher to Board 'an-nounces that the filing by Intervenors of their 4pril 13 Objection and Offer of Proof "obviates" the, need for LILCO to depose anyone other than Halpin and Axelrod. County formally requests that F.spositions of County deponents other than Halpin be cancelled.

6. April 18,1988: Confirmatory Memorandum and Order -

states that the "(dlepositions of additional State and l County witnesses, previously noticed by LILCO, are to I be taken during the period of April 25-29. . . ."

7. April 21, 1988: Letter from Michael S. Miller to James N. Christman sets deposition schedule for l Roberts, Guido, and Petrone but does not include Harris and Regan.

8. April 25 and 26,1988: Depositions of County witness-es Guido. Petrone and Roberts occur as scheduled.

9. May 2. '1988: LILCO's Supplement to Governments' April 13 Objection and Motion in the Alternative to Compel Discovery requests reopening of the Halpin, Roberts, and Petrone depositions, as well as the or-dering of Regan and Harris depositions.

10. May 10.1988: Prehearing Conference. Board orders the reopening of Halpin deposition.

11. May 24,1988: Board Ruling grants LILCO's request to reopen Roberts and Petrone depositions; orders depo- {

sitions of Regan and Harris.

12. May 27,1988: Letter from Lanpher to Sisk, making 1 Halpin available for reopened deposition on June 13, 1988.  ;

13. June 9.1988: Governments' Notice that the Board has Precluded Continuation of the CLI-86-13 Remand is filed.

14. June 10.1988: Teleconference. Intervenors indicate they will not go forward with the depositions ordered by the Board on April 12, April 18, and May 24. Board dismisses realism contentions. Depositions are never reopened or held.

B. Refusal to Produce Deponents on Issues Related to Document Production

1. June 1.1988: LILCO notices the depositions of two additional County witnesses, in light of emergence of Emergency Operations Plan,

a. The "current Chief of Communications and Warning" (who turns out to be a G. Berkeley Bennett) for 6/7/88.

b. John Randolph for 6/7/88.

2. June 3,1988: Letter from Lanpher to Sisk, presenting the County's preferred witnesses for. deposition con-cerning the Emergency Operations Plan.

a. Frank Petrone for 6/13/88.

1 l 1 j l I

l

b. David Harris for 6/14/88.

c. Richard Jones for 6/15/88.

d. John B11ello for 6/16/88,

e. John Randolph (not scheduled).

Lanpher offers Jones and Bilello in place of Regan, who has retired. The deposition of Bennett is charac-terized as "redundant." Roberts, who has retired, is not offered.

3. June 6, 1988: Letter from Sisk to Lanpher and Richard J. Zahnleuter proposes tentative schedule for thirteen depcsitions of Intervenor witnesses.

4. June 7,1988: LILCO notices depositions of two more County employees likely to have knowledge of the Emergency Operations Plan.

a. Robert Sheppard for 6/10/88.

b. Lee Koppleman for 6/10/88.

5. June 8,1988: LILCO reissues notices of deposition for:

a. Regan for 6/14/88.

b. Roberts for 6/15/88.

l

6. June 9,1988: Letter from Sisk to Bohrd announces a 4 discovery "impasse" and requests an immediate ,

teleconference to resolve the dispute. Concurrently, l Intervenors file Governments' Notwe that the Board j has Precluded Continuation of the CLI-86-13 Remand.  !

7. June 10,1988: Teleconference. Intervenors refuse to go forward with depositions. Board therefore dis-misses the realism contentions; Board retains jurisdic-tion over the issue of the non production of the Emergency Operations Plan and other discovery abuses, j

8. June 10.1988: Letter from Lanpher to Sisk suggests that "any talk of depositions seems premature."

9. June 15,1988: LILCO's Brief on the Appropriate Remedy for the Intervenors' Failure to Comply with Board Orders asks that the Board order depositions according to an attached schedule.

l l

10. June 17.1988: Teleconference. Board grants LILCO's June 15 deposition schedule.

11. June 18. 1988: Letter from Donald P. Irwin to l Lanpher confirming the County's refusal to produce l County witnesses for depositions. See Letter from Irwin to Board dated June 20, 1988 informing the Board of this refusal.

12. June 20.1988: Intervenors file Governments' Moden for Licensing Board to Vacate June 17 Order and re-

! fuse to go forward with depositions pending Board ac-tion.

13. June 24. 1988: Teleconferences. Board requests briefs on County suggestion of a hearing on the "in-tegrity of the proceeding"issue.

14. June 29.1988: Teleconference. Board orders hearing on the "integrity of the proceeding" issue. Depost-tions are never held.

C. Refusing to Honor Subpoenas of Roberts and Regan

1. J_une 8.1988: LILCO reissues notices of deposition for:

a. Richard Roberts for 6/14/88. I

b. William Regan for 6/15/88.

2. June 15.1988: LILCO files Application for Issuance I of Subpoenas for Roberts and Regan.

1

3. June 16.1988: Board grants LILCO's request for sub-poenas and orders Roberts to appear on 6/22/88 and {

j Regan to appear on 6/23/88. j

4. June 21,1988: Letter from Sisk to Lanpher confirms j that LILCO has cancelled travel plans to Long Island due to Lanpher's representation over the telephone that day that Roberts and Regan will not appear.

Suffolk County files Motion to Quash Subpoenas.

5. June 22.1988: Letter from Irwin' to Board informs the Board of County's actions in refusing to honor the subpoenas.

LILCO files Response to Motion to Quash Subpoenas.

6. June 29,1988: Teleconference. Board orders hearing on the "integrity of the proceeding" issue. This has the effect of mooting the subpoenas for Roberts and Regan.

7. July 19.1988: . Regan testifies as a witness in the "in-tegrity of the proceeding" hearing.

ATTACHMENT 4 i 1 i 1 1 l 1 i l

i I l I I l Attachment 4 l l l SPECIFIC INSTANCES OF DISCOVERY ABUSE BY NEW YORK STATE I. Document Production A. Suffolk County Emergency Operations Plan: the State's Knowledge Did the State have knowledge of the plan prior to May 1988? Was it responsive to LILCO's questions at depositions and in-te!Togatories?

1. At his deposition, Donald DeVito said he did not know of a Suffolk County disaster plan and probably no one else in SEMO would know if there is one. DeVito Def.,

Tr. at 7,25 (LILCO Discovery Exh.18); Tr. 21231-233 (DeVito). He was unable to explain the review of the Suffolk County disaster plan by Mr. Horton of SEMO in 1981, for compliance with Article 2B of the New York Executive Law. Tr. 21212-216 (DeVito). Mr. DeVito testified that SEMO got the SCEOP on May 6, 1988. Tr. 21103 (DeVito), as a result of a visit by Mr. Horton of SEMO to Suffolk County. Tr. 21129 - 130 (DeVito). See also Tr. 21148-152, 21196-197 (DeVito). The Governments' Response to the June 24 Board Order, dated June 28,1988)(LILCO Discovery Exh.17) states that "Mr. DeVito will testify that SEMO personnel have known for many years that Suffolk County, like other counties in New York, had a plan for dealing generally with emergencies." Mr. DeVito testified he was uncertain whether that 1 statement was correct. Tr. 21226-227. He stated l that to his knowledge no one at SEMO had a copy of i any Suffolk County plan for dealing with emergencies i prior to May 6,1988. Tr. 21228 (DeVito). However, he acknowledged that he had known since at least i l 1987 that the County's emergency planning must be l reviewed by SEMO in 1988 for compliance with feder- i al standards, and a plan meeting those standards must be produced for the County to continue to receive funds. Tr. 21234-235 (DeVito). I

2. Dr. David Axelrod testified that "(n]ot all counties have plans for emergencies," so he could not be sure whether the statement in the Governments' June 28, 1988 response regarding SEMO knowledge of a SC plan was correct. Tr. 21662 (Axelrod). He testified that his "expectation . . . when we were required to I

l l respond to the Gloria situation was that a plan of some kind existed in a county of the size of Suffolk," although he had no personal knowledge of the nature or completeness of a plan. Tr. 21660, 21663 (Axelrod).

3. Anthony Germano testified that he had assumed that i counties, including SC, had emergency plans but he I had no specific knowledge. Tr. 21760-761 (Germano).

Counties must commit to develop a plan in order to receive state / federal funds. Tr. 21,761 (Germano). I 1

4. Donald Davidoff did not participate in the recent pro-duction of documents concerning LILCO's second set of interrogatories. Tr. 21983 (Davidoff). He was aware that SC for many years had a "generic type, all hazards type emergency preparedness plan." Ida He further testified that members of the REPG staff, as well as LILCO were aware of this plan. Tr.

21983-986, 22011-012 (Davidoff). Mr. Davidoff also said emphatically and repeatedly that such a general emergency plan is a good source of information for a county radiological plan. Tr. 22004, 22006, 22023, 22053-056 (Davidof f). Prior to 1984 he was involved with production to LILCO of the NYS DPP, a prior version of the NYS REPP, and seven county radiological plans. Tr. l 21992-993 (Davidof f).

5. Papile testified he knew nothing of the SCEOP until these hearings, Tr. 21040-041, 21045, although he as-sumed that all counties have an Emergency Op-erations Plan. Tr. 21045.

B. Planning Documents Not Produced to LILCO

1. Local Government Planning Guidance for Radiological Ingestion Exposure Pathway, SEMO (8/87) and Cover Memorandum from Anthony Germano to "County Emergency Managers"(collectively the "Germano document"; LILCO Djscovery Exh. 5)

a. LILCO's Second Set of Interrogatories (LILCO Discovery Exh. 29) requested all plans and pro-cedures, whether generic or specific, relating to ingestion pathway response. See LILCO

Discovery Exh. 29,-Interrogatory No. 50. The Germano document, on its face is such a pro-cedure. Tr. 21689 (Axelrod); LILCO Discovery Exh. 5, p. 2 (admitted to record, Tr. 21031). But see Tr. 21730-731 (Germano, denying what the document says on its face). The Germano document also is responsive to: Interrogatory No. 76 which asks for identification of all doc-uments used by counties to prepare for and participate in the Gitla Exercise and

     ' Interrogatory No.123 which asks for the pro-duction of allidentified documents; Interrogatory No. 68 asking for identification and production of all procedures .used by counties in 10-mile EPZ for ingestion pathway; and Interrogatory No. 69 asking for identifica-tion and production of all procedures used by counties in 50-mile but not 10-mile EPZ for in-gestion pathway.

As LILCO explained in its June 23,1988 Re-sponse to Intervenors' Motion to Vacate, the l Germano cover memorandum states the "plan-ning guidance" was "developed to provide  ! generic guidance for counties that are within l the ingestion exposure pathway of operating  ! nuclear power plants in the State and thxse I bordering the State. It includes responsibilities l of local, state and federal governments and the utility." (Emphasis added). LILCO Discovery Exh. 5 at 1. I

b. In its June 3 Response to this interrogatory, the State of New York stated in relevant part "whatever plans and procedures exist are contained within the New York State Ra-diological Emergency Preparedness Plan."

LILCO Discovery Exh. 8 at 3.

c. Letter from Zahnleuter to Sisk dated July 5, i 1988 states at page 2: '

1 "LILCO mischaracterizes the scope of its docu-ment requests and makes incorrect presump-tions about the nature of the SEMO document. The SEMO document is not responsive to LILCO's Second Set of Interrogatories and Doc-ument Requests. In any event, LILCO admits

that it has had possession of the document

            'from another source' and therefore, produc-tion of it we:11d serve no purpose."

d. Paptie testified (Tr. 21026-029,21078-079) that he had received a copy from Mr. Germano, Tr. 21027, and that someone in his office may have been involved in its preparation, Tr. 21079. He identified it as "a planning guld-ance" for County Managers in the 13 counties involved in the 1987 Ginna exercise. See Tr. 21027. Papile said he was unsure whether Mr. Germano intended the document to be used by other counties, but "will say that it could be used by any county in my estimation."

Tr.21028.

e. Axelrod testified that he had never seen the document before the hearings, but confirmed s when confronted with its provisions that it was a generic precedure applicable to the plants listed in Attachment 1 of the document, which includes all operating plants in New York, as well as the plants listed in LILCO Interrogatory No. 50. Tr. 21682, 21690-691 (Axelrod).

Axelrod testified that the document applied to Yankee-Rowe, Millstone, and Oyster Creek. Tr. 21690 (Axelrod).

f. Germano testified that the document is

            "(a}bsolutely not" a state plan or procedure, but "was intended as a guidance document."

Tr. 21730-731 (Germano). He further stated that it is "absolutely not" a county plan or pro-cedure." Tr. 21731 (Germano). It was "never intended for distribution state-wide." I,d_. He agreed that the document "provides generic guidance information." Tr. 21732 (Germano). Contrary to Axelrod, contrary to the text of the document, and contrary to Attachment 1 of the document, Germano testified that it was never intended to apply to Yankee-Rowe, Mill-stone, Haddam Neck, Vermont Yankee, or Oys-ter Creek. Tr. 21733 (Germano), i Germano testified that this document was not relevant to Suifolk County. Tr. 21814 l (Germano). He could not deny, however, that

the document on its face was a "procedure" ap-plicable to all the plants depicted on At-tacnmen 1 of the document, Tr. 21776-777,and confirmed that Attachment I was copied from Procedure K of the NYS REPP, Tr. 21777, which is the generic State. ingestion pathway procedure for all plants in or within 50 miles of New York State. Attachment 1 of the docu-ment shows that parts of Suffolk County are within the 50-mile EPZs of at least the Mill-stone and Indian Point plants.

2. Brookhaven National Laboratory Emergency Response Plan, Department of Energy, rev. 7/87 (LILCO D!scovery i Exh. 43)

a. Interrogatory No.120 of LILCO's Second Set of Interrogatories (3/24/88) (LILCO Discovery Exh. 29) at 39 states:

          "Please provide a copy of any and all existing plans and procedures for responding to emer-gencies, whether radiological or nonradiolo-gical, affecting Suffolk County, including, but not ilmited to, chemical spills, fires, hurri-canes, explosicas, and earthquakes. Please in-clude any and all plans for dealing with acci-dents involving shipments of radiological materials to Brookhaven National Lab, the Shoreham Nuclear Power Station, hospitals and other medical facilities, and industrial facill-ties."

b. In its June 3 Response to this Interrogatory the State of New York responded "Copies of plans that may be responsive have already been pro-vided to LILCO by the State of New York."

LILCO Discovery Exh. 8 at 16.

c. As LILCO noted in its June 15, 1988 Brief on the Appropriate Remedy For The Intervenors' Failure to Compt.y With Board Orders, New York State has not produced this plan to LILCO, and officials at the U.S. DOE have con-firmed that a copy' was sent in July 1987 to New York State to the attention of K. Rimawi.

LILCO Brief at 14.

d. Mr. Davidoff, Commissioner of the Depart- l ment of Health to whom Mr. Rimawi reports, Tr. 22061, testified that he did not know whether Mr. Rimawi had a copy of the BNL l Plan, and that he had not asked Mr. Rimawi  !

whether he had a copy. Tr. 22061 (Davidoff).

e. Letter from Zahnleuter to'Sisk dated July 5, 1988 states at pages 2-3: l "Questions of responsiveness aside, Suffolk County produced this document to LILCO under cover of a June 11etter from Mr. Lanpher so there was no need for the State of New York to produce it again. But with re-gard to responsiveness, LILCO mischaracter-izes the scope of its document request (#120), -

which asked for 'any and all plans for dealir:g with accidents involving shipment of ra-- diological materials to Brookhaven National Lab.' The plan that was sent to the State of New York does not deal with ' accidents involving shipments of radiological materials' to Brookhaven National Lab. In any event, it appears that LILCO already has possession of the document from the primary source (Brookhaven National Lab itself) and, there-fore, production of it would serve no purpose."

f. The "Brookhaven Plan" produced to LILCO by Suffolk County on June 1 is the New York State Department of Health procedures for Brookhaven Laboratory Site dated 10/73 - a very different "plan." The 1987 BNL Plan was not produced to LILCO by the State or the County, nor was it recognized by any of their witnesses. Suffice it to say that the BNL Plan contains details for emergency response roles by the State and Suffolk County with respect to the BNL Site, and was clearly responsive to LILCO's interrogatories.

g. Germano stated that he had never seen the DOE BNL Plan before. Tr. 21808 (Germano).

h. The State refused to make Dr. Rimawi avail-able for deposition in response to LILCO's no-tices.

l 1

l l C. Inconsistencies Between REPG Affidavit and Interrogatory Responses In December 1987 LILCO moved for summary disposition on the realism contentions on the basis that procedures in the L~LCO Emergency Plan could be interfaced with the NYS REPP for adequate response to a Shoreham emergency, par-- ticularly with respect to ingestion pathway and recov- 1 ery/ reentry, l In opposition to LILCO's motion, the Governments filed sev- 1 eral affidavits including the REPG Affidavit (LILCO Discov- l ery Erh. 3). The REPG affidavit stated that there were de- I talled site-specific procedures in addition to the NYS REPP; therefore, Shoreham-specific procedums were required for an adequate response. LILCO's Second Set of Interrogatories sought identification , and production of such plans and procedures, but none were ' produced. ) l

1. Item 1: Site-specific implementation j procedures-State or County responsibility I

a. REPG Affidavit (LILCO Discovery Exh. 3 at 10 1 14)

                                      "Returning to the example of ingestion path-               )

way implementation, the New York State Plan leaves to various State agencies the responsi- , bility of developing implementation proce- l dures. Two major examples of a site-specific implementation procedures are (1) develop-ment of an adequate local communication net-work for use by the ingestion sampling teams, and (2) the establishment cf an adequate op-erations base for the ingestion sampling teams."

b. LILCO Interrogatory No. 97 (LILCO Discovery Exh. 29 at 33)

I "Page 10 of the REPG Affidavit cites two "ex-amples" of site-specific implementing proce-dures that concern an "adequate local commu-nication network for use by the ingection sampling teams," and "an adequate operations base for the ingestion sampling teams." For

1 l l each county in New York State that is located in an ingestion pathway EPZ of a nuclear power plant, identif y (1) the "site-specific im-piementation procedures" for these two "exam-ples," (b) wno is responsible for implementing these procedures, and (c) any training or drills that have taken place concerning these proce ' 1 dures. Provide copies of all documents relating j to these procedures and the training involving , these procedures."

c. June 3 Response. No. 97 (LILCO Discovery Exh. 8 at 13)

                    "(a)   The "site-specific implementing proce-dures" are the responsibility of the counties. Counties work with state agencies, but the "site-specific imple-menting procedures" are actually devel-oped by the counties. See General Ob-jections 1,2 and 3.

(b) Counties are responsible for imple-menting these procedures. (c) Training has occurred in the Ginna area. The State used the New York State Plan and the counties utilized, upon informa-tion and belief, their "site-specific im-piementing procedures."."

d. No county procedures were produced.

e. Germano document (LILCO Discovery Exh. 5 at 2)

                    "The material and operatiaonal data contained within this document reflect the current policies and criteria associated with the ra-diologicalingestion exposure pathway from the operating nuclear power plants located within, as well as bordering the State. Attachment i depicts operating nuclear power plants for which this procedure has been developed."

f. Axelrod testimony: DOH utilizes specific sam-pling protocols. Tr. 21671 (Axelrod); imple-mentation procedures would be lef t to state l 1

l l

agencies. Tr. 21672; specific implementing procedures would be "wlthin the site specific plan . . . that are the appendices to the Ra-dialogical Emergency Plan." Tr. 21681; "Those are the only ones of which I am aware." T r. 21682.

2. Item 2: Existence of detailed procechares beyond the State Plan and County Appendices

a. REPG Affidavit (LILCO Discovery Exh. 3 at 10 1 14)

             "LILCO falls to understand the nature of the New York State Plan, and therefore makes misleading statements such as the New York State Plan is composed of the generic plan and the County appendices. This ignorer the reality that the State Plan depends on the develop-ment of detailed procedures              going beyond the generic Plan and county-specific addenda
             - which implement the tasks identified in the Plan. Returning to the example of ingestion pathway implementation, the New York State Plan leaves to various State agencies the responsibilty of developing implementation                    i procedures."                                                  '

b. LILCO Interrogatory No. 98 (LILCO Discovery ,

Exh. 29 at 34) l "The REPG Affidavit at 10 says there are "de-talled procedures" which go "beyond the gener-ic Plan and county-specific addenda . . . which implement the tasks identified in the Plan." Identify, on a county-by-county basis for each county in New York State that is located in an ingestion pathway EPZ of a nuclear power plant, these detailed procedures, and state which tasks in the State Plan they are used to implement. Provide copies of all such docu-ments."

c. State June 3 Response. No. 98 (LILCO Discov- I ery Exh. 8 at 13) l "The REPG Affidavit at 10 does not state that "there are ' detailed procedures' which go 4

beyond the generic Plan and county-specific agenda' [ sic]." Rather,it states that the State Plan "depends on the development of detailed procedures going beyond the generic Plan and county-specific addenda." These "detailed procedures" are developed by counties and re-tained by them. See . General Objections 1, 2 and 3."

d. No county procedures were produced.

e. Germano document (LILCO Discovery Exh. 5 at 1)

             "The procedures outlined in this document should be utilized in the event of a commercial nuclear power plant incident with a potential for a radiological release which could impact on the ingestion exposure pathway.. The infor-mation contained within this document re-flects the generic responsibilities of County Government as it relates to radiological re-sponse and recovery activities of the State and Federal Government, as well as the commer-cial nuclear power industry. This document can become an appendix to the County all haz-ard Comprehensive Emergency Operations Plan."

f. Axelrod testimony: There are "a variety of procedures . . . identified within a radiologictI emer-gency preparedness plan in the development of subse-quent documents to elaborate upon the plan itself."

Tr. 21683-684 (Axelrod). This information "obviously takes the form of this material (Germano document, LILCO Discovery Exh. 5]." Tr. 21684 (Axelrod).

3. Item 3: Site-Specific plans and agency procedures

a. REPG Affidavit (LILCO Discovery Exh. 3 at 4-5 1 6)

             "As a result, the State could not adequately re-spond to a Shoreham emergency without a de-tailed Shoreham-specific off-site plan ap-pended to the State generic plan, without the training of State and local personnel

i concerning those specifics, without the devel-opment of internal agency procedures, and without the evaluation of State and local per-sonnel during exercises a'id drills."

b. Alerred Dep. Tr. (LILCO Discovery Exh. 36 at 91-92)

      "A State plan for Millstone does not exist. A site-specific plan that involves portions of New York State have been submitted by the State of Connecticut to the State of New York identifying the needs for satisfying the site-specific requirements associated with Mill-stone."

c. LILCO Interrostatory. No. 50 (LILCO Discovery Exh. 29 at 22)

      "Identify all plans and procedures that New York State has and would use, follow, or other-wise rely upon to make ingestion pathway and recovery and reentry response to a radiological emerEency at (a) the Yankee Rowe nuclear power plant (Massachusetts), (b) the Millstone nuclear power plant (Connecticut), (c) the Haddam Neck nuclear power plant (Con-necticut), (d) the Vermont Yankee nuclear power plant (Vermont), and (e) the Oyster Creek nuclear power plant (New Jersey). Indi-cate which of the plans and procedures are site-specific rather than generic. Provide copies of all documents."

d. State June 3 Response. No. 50 (LILCO Discov-ery Exb. 8 at 3) l l

      "For subparts (a) through (e), whatever plans          i and procedures exist are contained within the          i New York State Radiological Emergency Pre-             j paredness Plan for Commercial Power Plants

("New York State Plan") which speaks for itself and needs no summarization."

e. Germano document (LILCO Discovery ~dxh. S at 2,19)

                           "The material and operational data contained within this document reflect the current policies and criteria associated with the ra-diologicalingestion exposure pathway from the operating nuclear power plants located within, as well as bordering the State. Attachment i depicts operating nuclear power plants for which this procedure has been developed."

Attachment 1 includes each of the plants iden-tified in LILCO Interrogatory No. 50.

                          To provide effective public information re-leases to the general public, the New York State Emergency Broadcast System (EBS) can be employed as necessary. The primary means for accessing EBS for dissemination of protec-tive action recommendations will be with the assistance of County officials, pursuant to ex-isting procedures."

f. A_xelrod testimony: Site specific plans are all in the State Radiological Plan. Tr. 21685 (Axelrod). "I am not aware of any other infor-mation that would provide for site specific re-sponse to the plants that are identified in the interrogatory of March 24." Tr. 21688 (Axelrod).

4. Item 4: Detailed State and Local Government Drills Planning. Etc.

a. REPG Affidavit (LILCO Discovery Exh. 3 at 5-618)

                          "It is implicit in LILCO's Motion        primarily via LILCO's silence - that LILCO assumes ef-fective ingestion pathway and/or recovery and reentry activittes could be implemented by State or local yovernment personnel despite the fact that those personnel have not partici-pated in Shoreham-specific drills and exer-cises. From experience at other sites in New York State, we have learned that the only way that State and local government personnel have been able to develop adequate site-specific response capabilities is through de-tailed planning, interfacing and personnel.

l drilling, and exercising. Through detailed State and local government drills and exer-cises, government personnel have learned to work together and to prepare for unexpected events. Absent such site-specific training, the likelihood of an effective response is low."

b. Interrogatory No.72 (LILCO Discovery Exh. 29 at 27-23)

                            "For each county listed in Interrogatory No. 68 and identified in your response to No. 69, iden-tify, for each of the following sub parts, each county that has participated in (a) an ingestion pathway exercise, (b) any drills of ingestion pathway plans and procedures,(c) any training of ingestion pathway plans or procedures, (d) an exercise dealing with recovery and reen-try activities, (e) in any drills of recovery and reentry plans and procedures, and (f) in any training of recovery and reentry plans and pro-cedures. For each subpart, identify the dates that that activity occurred, what plans and procedures were used, and who participated."

c. State June 3 Response, No. 72 (LILCO Discov-ery Exh. 8 at 7)

                            "Wayne and Monroe Counties have particpated in the activities set forth in subparts (a) through (f) in connection with an exercise on October 28 and 29,1987. The New York State Plan, including the Wayne and Monroe County Plans, were used and the appropriate state and county officials identified in those plans par-ticijated. See also the chronology of events leading up to this exercise, which has already been produced to LILCO. See answer to Inter-rogatory No. 76."

( Answer to Interrogatory No. 76 talks about counties' preparation for Ginna Exercise.]

5. Item 5: Need for discussions between County i and State to work out details of a response

                                                                           . - - ,               -e -

a. LILCO Interrogatory No.103 (LILCO Discovery Exh. 29 at 35)

                    "At page 11 of the REPG ' Affidavit it states that the State Plan does not define responsibilities "since the precise details of how a county can respond are only worked out 4                    in discussions" about how the counties can as-sist the State in an ingestion pathay response.

For each county in New York State in an inges-tion pathway EPZ of a nuclear power plant, state when the State has had these "dis-cusssions," who attended these "discussions," and for each county, the "precise details" of the "assistance" that each county will provide the State in an ingestion pathway response. Identify when these "discussions" have been "refined" during "drills, table top exercises, and similar training sessions. . . .""

b. June 3 Response No.103 (LILCO Discovery Exh. 8 at 14-15) j "For a statement of when the State of New York had such discussions, who attended them and what was discussed, see the chronology of events regarding the Ginna Exercise. This teument has already been produced to LILCO.

For countics not involved in the Ginna exer-cise, no such discussions have occurred."

c. LILCO Interrogator 1 No. 69 (LILCO Discovery Exh. 29 at 27) ,

                    "Identify, on a plant-by plant basis, each coun-                             l ty in the ingestion pathway EPZs, but not in the plume exposure EP2s, of each operating                                   i nuclear power plant in New York. For each                                     l county, identify all county plans and proce-dures that would be used, followed, or other-wise relied upon by that county for an inges-tion pathway and a recovery and reentry response to a radiological emergency. If the county does not have plans ano procedures, state how they would respond."

l l l l

 ~ 6e --- ,    ,--w        ,,   n  ---
                                       .m ,-,4 ,s,.wr- ,    --p         w - - - e   w - + - -, -

d. June 3 Response No. 69 (LILCO Discovery Exh.

8 at 7) (Counties are listed for Nine M!!e, Ginna, l Indian Point] l l then... '

           "As explained in General Objections 1, 2, and 3, the State of New York is unable to speculate about what county plans and procedures would actually be "used, followed or otherwise relied upon by that county" or if a county does not have plans and procedures, "how they would respond.""

6. Testimony of state witnesses regarding the existence of plans and procedures other than the State Plan

a. Papile testified about incident reports (or:

           "courtesy notification") as related to emergen-cy notifications or exercises or actual events at nuclear plants, Tr. 21050-053 (Papile). espe-etally for Millstone. Tr. 21052-053 (Papile).

He said that there is a notification listing of where people go during an actual emergency. Tr. 21074-075 (Papile).

b. Devito was emsure whether any standard op-erating procedures exist. Tr. 21123-125 (DeVito).

c. Axelrod testified that there were a variety of procedures or guidance information prepared by SEMO in collaboration with REPG. Tr.

21683-684 (Axelrod). See generally Tr. 21666-696 (Axelrod).

d. Germano testified that there are agency-specific procedures developed and promulgated by state agencies. Tr. 21780 (Germano). He was "aware" that the Dept. of Health (DOH) hu such procedures, but did not know their content. Tr. 21780-781 (Germano). 1.!LCO I Discovery Ex. 7 is one such procedure. Tr. I 21818 (Germano). He did not have specific '

knowledge of other agency procedures. Tr. 21818 (Germano). i l I 1

A . .- .

e. Davidoff testified that the DOH has standard operating procedures Tr. 22061-062 (Davidoff),

and that they refer to all types of emergencies and are state-wide (including SC). Tr. 22062 (Davidoff). D. Late Production of Documents

1. July 21,1988: Letter from Richard Zahnleuter to X. Dennis Sisk enclosing copies of 19 title pages of component procedures for laboratory analysis of in-gestion pathway samples Jarious dates from 4/73 to 4/88).

2. July 6, 1988: Letter from Richard Zahnleuter to K. Dennis Sisk enclosing copies of the following docu- -

ments:

a. State Atlas of Community Water System Sources (1982);

b. New York State Department of Health Bureau of Environmental Radiation Protection, Sample Collection Procedures (undated);

c. New York State Emergency Sampling Kit (undated);

d. State Department of Health Specific Operating Procedures for Indian Point Station (rev. 7/75);

e. State Department of Health Specific Operating r Procedures for Nine Mile Point Site (undated);

f. State Department of Health Specific Operating Procedures for Ginna Site (10/74);

g. Wayne County Response Plan Specific Op-erating Procedures, Emergency Radiation Inci-dents Ginna Site (11/77);

h. Oswego County Response Plan. Nine Mile Point Facilities, Specific Operating Procedures (5/78); q

1. Westchester County Radiation Response Plan, Indian Point Facilities, Specific Operating Procedures (undated);

                                                             -16
                                                                                           . -- ._           ~ ~ _ _ - . . . _ - - _ - , _ _ _ - _ - _ _ .

1

j. Nine Mile Point Site Emergency Plan and Pro-cedures (approx. 8/72);

k. Monroe County Emergency Response Plan

(?/85); and

1. Proposed changes to State Department of Health Specific Operating Procedures -

Shoreham Site (4/75).

3. July 5,1988: Letter from Richard J. Zahnleuter to K. Dennis Sisk enclosing copies of the following docu-ments:

a. New York State Department of Health Proce-dure: RAD 320 (10/11/84);

b. Emergency Communications Development Plan State of New York, County of Suffolk (10/78);

c. Suffolk County Department of Emergency Pre-paredness, Emergency Directory (3/80);

d. Title III Planning Guide and Model Plan, New York State (4/88);

e. Brookhaven Spent Fuel Shipments Notification and Escort Procedure Checklist (2/6/85);

f. The Basic Plan Component of a County Com-prehensive Emergency Management Plan (2/86);

1

g. Annex B, Local Radiological Protection Annex j (12/86)t '

h. New York State Hazardous Materials Emergen-cy Contingency Plan (1/23/86);

i. A Guide To: Local Government Jisaster Plan-ning (undated);

j. Guide for Preparing a County Comprehensive l Emergency Management Plan in New York ,

State (2/86); I

k. Guide for Counties, Hazardous Materials Re-sponse Planning (4/86);

1. Letter from James Papile to Ihor Husar (6/2/88); and

m. Memorandum.from Lee Bates to Robart Travision (2/6/85).

E. Late Authentication of State Plans

1. April 22,1988: Deposition of David Axelrod 4

a. LILCO placed a copy of f.ne generic portion of the New York State Radiological Emergency Preparedness Plan (NYS REPP) before the wit-ness for identification. Dr. Axelrod was unable -

to confirm that the plan as presented repre-sents the complete NYS REPP. Deposition Transcript of David Axelrod (April 22, 1988) (LILCO Discovery Exh. 36 at 52-57).

b. LILCO requested that the State produce either verification that this document is the current version or a current copy. LILCO received neither.

2. April 27,1988: REPG deposition notice specifically requested true copies of the New York State Disaster Preparedness Plan (DPP) and NYS REPP.

3. April 28,1988:

a. Letter from Sisk to Zahnleuter specifically re-quested that he "ensure that the documents in LILCO's deposition notices are available at the depositions."

b. LILCO's First Set of Request for Admissions, request No. 2 specifically asked the State to admit the enclosed document was a true copy of the NYS REPP and if not, to produce one.

4. April 29,1988:

a. Deposition of Donald DeVito: LILCO again was unsuccessful in obtaining either a verification or production of a current copy of both the 18-i

                                          -,_.,__,.,---,---,,---.-,gn--,         , - , - v--. ~   ,. + ,m,- ,,, ,
           -,------,n,     - - - - . -                                     , . ,

NYS REPP and the New York State Disaster Preparedness Plan (NYS DPP). Deposition Transcript of Donald DeVito (April 29, 1988) (LILCO Discovery Exh.18.at 9-11). No docu-ments were produced.

b. Deposition of REPG Panel: LILCO again was unsuccessful in obtaining either a verification or production of a current copy of the NYS REPP and the NYS DPP. Deposition Transcript of Lawrence B. Czech, James D. Papile, and  ;

James C. Baranski (April 29,1988) at 7-16. No documents were produced, and none of the REPG panel members had even been asked by counel to search files and bring responsive doc-uments. M. at 7-8.

5. At his deposition, James Papile said that he didn't know if he had a copy of the current New York State Disaster Preparedness Plan which the deposition no-tice had requested be produced. Vapile Dep. Tr. at

11. At the hearing he testified he had a trae current copy, Tr. 20986, but tried to explain the discrepancy by saying the he "wasn't sure" at the time of the dep-osition, but made sure he got a copy af terwards.

Tr. 20992-993. Furthermore, he knew if he needed a copy he could get one from SEMO "acrus the hall." Ld See also 21067-068 (Papile). Papile testified that counsel did ask him to ' verify that the cooy of the NYS DEPP shown him at his deposition was the correct version. Tr. 21037. He then "drew up another copy of the plan and verified it." M.

6. May 10.1988- i 1

a. Governments' Objections to LILCO's First Set of Requests For Admissions at 2 objected to LILCO's First Request For Admissions on grounds of timeliness and refused to respond.

b. Board ordered the State to produce documents.

7. May 24.1988- l I

a. Letter from Zahnleuter to Sisk producing seven

, documents, none of which were the NYS REPP

                                                     ~

or the NYS DPP for which LILCO sought veri-fication and/or production of current copies.

b. Board again ordered discovery with respect to "relevant responses to interrogatories."

8. June 3,1988:

a. State of New York's Response to LILCO's Sec-ond Set of Interrogatories (LILCO Discovery Exh. 8) failed to produce verification or copies .

of plans.

b. Hearing: State indicated that par: of the SCEOP was based upon the NYS DPP. Tr.

20822-826 (Zahnleuter)

9. June 8,1988: Letter from Sisk to 7 dinleuter re-quested verifications of plans.

10. June 29,1988: Board ordered S* 4!c to verify plans in its teleconference. Tr. 20934-935.

11. J.uly, 5. 1988: State produced verifications of the plans tsy Papile and DeVito.

F. Additional Problems with Verifications of Interrogaterv Responses

1. April 22,1988: Governments' Answers and Additior.31 Objections to LILCO's Second Set of In'.errr.tatories .

Regarding Contentions 1-2, 4-8, and 10 (LIL(,0 Dis-covery Exh. 39) did not include verification Of i P sponses.

2. April 26.1988: Letter from Leugers to Zahnleuter and McMurray requesting verification of the April 22 answers.

3. May 11.1988: Lette.r from Ross to Leugers enclosing verifications of Petrone and Roberts for Govern-ments' April 22 answers.

4. June 3. 1988: Letter from Zahnleuter to Sisk enclosing State of New York Response to LILCO's Second Set of Interrogatories (LILCO Discovery Exh.

8) stating that he would supply a signed verification next week.

5. June 15, 1988: Letter from Zahnleuter to Sisk enclosing verification of Papile to State's June 3 re-sponses.

6. June 5, 1988: State of New York's Response to LILCO's Third Set of Interrogatories and Requests for Production of Documents Regarding Contentions 1-2, 4-8, and 10 (LILCO Discovery Exh.16) including veri-fications by DeVito and Davidoff,

a. Davidoff verified three attached transmittal letters and the following portion of the State's t responses to Interrogatory No.124:

                    "The State of New York's response to LILCO's Interrogatory No.124 is no different than what counsel for the State of New York stated at those places in the transcript: the State of New York provided LILCO with a copy ofa suc-cessor (the New York State Disaster Prepared-ness Plan) of an outdated portion of ;he Suffolk County Emergency Operations Plan under cover of a letter from the State Radiologicai Emergency Preparedness Group to Donald P.

Irwin, dated February 17, 1984, in response to LILCO's February 8.1984 request for the New York State Disaster Preparedness Plan. Copies of this transmittal letter and two related transmittal letters are attached." Davidoff verification attached to LILCO Discovery Exh. 16. At the hearings, Davidoff testified that he was not verifying the statements of counsel at Tr. 20549, 20822-20826 to whch these senten-ces refer. Tr. 22049 (Davidoff). G. Re_ phrasing and Limiting LILCO's Document Production Requests

1. Pa lle testified that he was asked to search for

             ' a;ny document having to do with Shoreham. . . and we were asked for documents such as out-of-state plans, we were asked for documents that referred to specifically other states having to do with ingestion pathway. That's a sample of what we were asked for." Tr. 20,968. He further testified that he only starched for documents he was particularly asked to fearch for. Tr. 20,970. He was unsure whether he

1 l l l was asked to search for only state plain, or also for county plans. Tr. 21n3bSn. ria testified he was never asked to ser;en for the NYS REPP. Tr.21036. l I _See also Tr. 21064-067 (Papile).

2. DeVito testified that he was asked to search for the SCEOP on June 6,1988. Tr. 21101 (DeVito). He also asked his staff to search for "anything and everyting in all sections within the State Emergency Manage-ment Office for any documents that in any way shape or form could be construed as being involved in emer-gency planning and associated with Suffolk County, regardless of subject matter." Tr. 21103-104 (DeVito).

_See also Tr. 21120-124,21217-218 (DeVito). Later Mr. DiVito testified that counsel had conveyed the text of Interrogatory 120 to him by phone. Tr. 21289-290 (DeVito). .

3. Germano testified that SEMO was asked to search for "documents that from the emergency management perspective may affect Suffolk County " Tr..

21729-730,21812,21821 (Germano), but was not asked to search for documents like the SCEOP, Tr. 21768 (Germano).

4. Axelrod testified that he was not involved with the production of documents concerning this matter.

Tr. 21606 (Axelrod). "(T] hose activitle:; were carried out by Counsel along with the Director of the State Emergency Management Office and Radiological Emergency Preparedness Group." Ld. See also Tr. 20968 (Papile); Tr. 21104 (DeVito). H. Examples of Relevance Objections to Discovery Requests

1. "Realism" Document Discovery I State Claims Irrelevance Board Compels Production Governments' Objections to Board Orders of May 10 and LILCO's Second Set of Interroga- May 24,1988. I tories Regarding Contentions 1-2, 4-8, and 10 (April 20,1988)

2. Depositiors Objections in depositions are too numerous and )

l

pervasive to catalog, The Board reviewed the complete transcripts, for example, of the Halpin and Axelrod depositions, and found that the State's and County's counsel have engaged in obstruction of discovery.

3. Hearings on "Integrity of the Proceeding" issue In four days of hearings and 1108 pages of transcript, there were 278 objections by Suffolk County and/or the State of New York. The vast majority of these cbjections were on the basis of relevance / scope of the proceeding.

C. Witnesses / Deponents A. Footdragging in Designating Witnesses -

1. Mhrch 7.1988: The Boare set the hearing and discov-ery schedule on the "best efforts" issue, with the dis-covery period to end on April 5,1988.

2. March 9,1988: LILCO filed its First Set of Interroga-tories asking who the Intervenors' witnesses would be.

3. March 23,1988: The State responded to LILCO's First Set of Interrogatories saying that no witnesses had yet been identified.

4. A pril 5,1988:

a. Letter from Sisk to Zahnleuter requesting identification of witnesses by 2 PM the same day.

b. LILCO's Motion to Impore Witness Designation Cutoff.

5. April 6,1988: Government's Motion for Extension of Time to Respond to Realism Discovery Req' rests, and to Extend Disceovery Schedule states that "the Gov-ernments have not yet decided upon or designated any witnesses on the realism issues, or even decided whether witnesses will be designated." See Govern-ment's Motion at 5.

6. April 7.1988: Letter from Zahnleuter to Christman designating David T. Hartgen as a witness on immate-riality issues, and stated that Dr. Hartgen would to available for deposition the week of April 18.

             . ~ __

l

7. April 12.1988: Confirmatory Memorandum and Order states that "witnesses must be designated in adequate i time for discovery to be completed in connection with their testimony before ( April 22]."

8. . April 13.1988: Governments' Objection to Portiors of Feb. 29 and April 8 Orders in the Realism Remand and Offer of Proof attaching Direct Testimony of David Axelrod on Behalf of the State of New York.

9. April 18,1988: Letter from Zahnleuter to Sisk advis-ing that Dr. Axelrod would be available for deposition at 3 PM on April 22, and Dr. Hartgen from 9 AM -

Noon the same day. B. Refusal to Produce Deponents on Realism Issue

1. April 5,1988: LILCO notices five New York State witnesses for depositions,

a. James C. Baranski, Lawrence B. Czech, and James D. Papile (all of REPG) for 4/12/88.'

b. Donald DeVito for 4/13/88.

c. David Axelrod for 4/13/88.

2. April 6,1988: Governments' Motion for Extension of Time to Respond to Realism Discovery Requests, and to Extend Discovery Schedule.

3. April 7.1988: LILCO moves the Board to compel dep-ositions noticed on April 5. LILCO's Response to "Governments' Motion for Extension of Time to Re-spond to Realism Discovery Requests, and to Extend Discovery Schedule and Request for Additional Re-lief at 12.

4. April 7,1988: Letter from Lanpher to Sisk, states that "no depositions are possible until af ter April 18."

5. April 12,1988: Board orders that "all persons previ-ously or subsequently noticed by any party will be made available for deposition purposes in time for such discovery to be completed by April 22." Con-firmatory Memorandum and Order at 2.

l i

6. April 15.1988:

l

a. Letter from Irwin to Board summarizes status of depositions

b. Letter from Lanpher to Board formally re-quests that depositions of State deponents other than Axelrod be cancelled, stating that the filing of Intervenors' Objections "obviates" the need for LILCO to depose anyone other than Halpin and Axel' A.

7. A pril 16,1988: LILCO formally notices depositions:

a. David T. Hartgen for 4/22/88

b. David Axelrod for 4/22/88 (second notice)

8. A pril 18.1988:

a. Confirmatory Memorandum and Order states that the "[d]epositions of additional State and County witnesses, previously noticed by LILCO, are to be taken during the period of April 25-29. . . ."

b. Letter from Leugers to Zahnleuter requesting dates for depositions of REPG panel and DeVito, pursuant to April 18 Board Order.

9. A pril 22.1988:

a. Letter from Zahnleuter to Irwin re availability of Axelrod and Hartgen.

b. Depositions of Hartgen and Axelrod occur as scheduled. Axelrod deposition is terminated oy the State without LILCO's consent.

10. April 17.1988: LILCO renotices depositions.

a. Donald DeVito for 4/29/88

b. Papile, Baranski, and Czech for 4/29/88

11. April 29.1988: Depositions of DeVito and REPG panel occur as scheduled. REPG deposition is termi-nated by the State without LILCO's consent.

l l l 1 l

12. May 2.1988: LILCO's Supplement to Governments' April 13 Objection and Motion in the Alternative to Compel Discovery requested reopening of Axelrod and REPG depositions.

13. M2y 10, 1988 Prehearing Conference: Board orders AxetM deposition reopened.

14. May 19.1988: Letter from Irwin to Zahnleuter re-questing date for reopened Axelrod deposition.

15. May 24,1988: Board Ruling orders REPG deposition reopened.

16. June 10.1988: In Teleconference Board dismisses re-alism contentions; realism depositions never reopaned or held.

C. Refusal to Produce Deponents on Issues Related to Document Production

1. J_u m 1.1988: LILCO notices depositions.

a. Donald B.Davidoff for 6/8/88

b. Anthony J. Germano for 6/9/88

c. Karim Rimawi for 6/8/88

d. Marvin I. Silverman for 6/9/88

2. June 3,1988: Letter from Zahnleuter to Sisk provides dates for depositions:

a. REPG Panel 6/17/88 IPM

b. David Axelrod 7/7/88 2PM

3. June 6.1988:

a. Letter from Sisk to Lanpher and Zahnleuter proposing deposition schedule for realism wit- {

neSSes. l

b. Letter from Zahnleuter to Irwin alleges that LILCO failed to provide the requisite notice i for depositions of Davidoff, Rimawi, Germano, '

and Silverman. Further, Mr. Zahnleuter argues 1 l l - - --s. , _ . - , . ---e ,. - - - - - - - , e

I that these depositions and the reopening of l REPG are unwarranted due to the completion  ; of the DeVito deposition and the reopening of ' the Axelrod deposition.

4. June 9.1988: Letter from Sisk to Board announces discovery impasse and requests conference call on issue. 1

5. June 10,1988:

a. Governments' Notice That The Board Has Pre-cluded Continuation of The CL1-86-13 Remand objects to depositions.

b. Letter from Sisk to Board requests Board to order depositions on dates noticed by LILCO.

c. In a teleconference, the Board determines to dismiss realism contentions and retains juris-diction over nonproduction of SCEOP and other plans.

6. June 15, 1988: LILCO's Brief on the Appropriate l Remedy For the Intervenors' Failure to Comply With Board Orders asks the Board to order depositions ac-cording to the attached schedule.

7. June 17,1988 Teleconference : Board grants LILCO's June 15 deposition schedule.  ;

8. June 18,1988: Letter from Irwin to Zahnleuter con-firming the State's refusal to produce State witnesses for depositions. See letter from Irwin to Board dated June 20,1988 informing the Board of this refusal.

9. June 20,1988: Intervenors file Motion to Vacate and refuse to go forward with depositions pending Board action.

10. June 24. 1988: In Teleconferences Board requests briefs on County suggestion of a hearing on the "in-tegrity of the proceeding"issue.

11. June 29.1988 Teleconference: Board orders hearing on the "integrity of the proceeding" issue; this ends the struggle over depositions.

l l i D. Arbitrary Time Limits and Abrupt Halting of Depositions

1. Axelrod

a. April 16, 1988: LILCO's deposition notice states that the deposition will continue from day-to-day until completed,

b. April 18.1988: Letter from Zahnleuter to Irwin proffering Dr. Axelrod only on April 22 beginning at 3 PM.

c. April 20,1988: Letter from Sisk to Zahnleuter informing him that LILCO objects to the late starting time for the deposition and intends to continue as necessary until completed,

d. April 22, 1988: Mr. Zahnleuter noted that Dr. Axelrod would have to leave at 5 PM. Dep-osition Transcript of David Axelrod (April 22, 1988)(LILCO Discovery Exh. 36 at 5). Mr. Sisk stated his objection. Ld. at 5, 106-07. The State ended the deposition at 5:12 PM (af ter 2 hours 12 minutes), despite Mr. Sisk's objection.

2. DeVito: State set a time limit of three hours. Depost-tion Transcript of Donald DeVito (April 29, 1988)

(LILCO Discovery Exh.18 at 4-5).

3. REPG: State set a time limit of four hours for the panel and 3-1/2 hours for Papile's portion. Deposition Transcript of Baranski, Czech, and Papile (April 29, 1988) at 4-5. Papile lef t at 4:30 PM. Ld. at 141.

Mr. Zahnleuter ended the deposition at 5:09 PM de-spite Mr. Sisk's insistence that the deposition be con-tinued at this or a later time. Ld. at 166-68. 1 E. Reauiring Subpoena for Areirod to Testify at Hearing

1. July 12.1988:

a. Mr. Zahnleuter asked the Board to reconsider its request that Dr. Axelrod appear on the  !

14th. Tr. 21532 (Zahnleuter). l i

b. The Board refused to do so and ordered the  !

State to produce Dr. Axelrod. Tr. 21533-534 l (Gleason).  !

c. Zahnleuter stated that "Dr. Axelrod declines the Board's request to appear." Tr. 21534 (Zahnleuter). -

d. Judge Gleason then issued a subpoena for Dr.

Axelrod. Tr. 2.'534-535 (Gleason).

2. July 14.1988:

a. Af ter Dr. Axelrod was sworn in, Judge Gleason said "You are appearing here, Doctor Axelrod, under a subpoena issued by the Board on the 13th, I believe." Tr. 21,606 (Gleason).

b. In response, Mr. 7.ahnleuter said "I would also like to state that Doctor Axelrod is appearing here today on his own volition, rather than under the subpoena which was signed by you, Judge Gleason, on Tuesday because the State's position is that the subpoena was not properly served, and that there are other defects with the subpoena. In any event Doctor Axelrod is here under his own volition to respond to the Board's questioning and other parties."

Tr. 21,603 (Zahnleuter). F F. Ot2struction of Depositions and Hearing by Objections

1. Hearings During four days of hearings and 1108 pages of tran-script, the number of objections by Suffolk County and the State of New York were as follows:

a. Suffolk County: 225 objections

b. State of New York: 53 objections

c. Of these 278 objections by Intervenors, 213 )

were overruled.

2. Depositions l

i i

l l I

a. Axelrod: Objections on 35 pages of the 108 page transcript,

b. DeVito: Objections on 43 pages of the 107-page transcript.

c. REPG: Objections on 69 pages of the 168 page transcript.

G. Authority of David Axelrod to testify on behalf of New York State Axelrod testified that his prefiled testimony (LILCO Discov-ery Exh. 34) contained material beyond his diect testimony, namely an affidavit of Gov. Cuomo and a statement by the Gov. Tr. 21627 (Axelrod). However, at page 3 of the testi-mony is a statement that "Governor Cuomo's affidavit is at-tached hereto and made a part of this testimony." Tr. 21627 (Axelrod). Axelrod tried to distinguish between his own "personal testimony" and that of the exhibits by saying that Governor Cuomo's testimony does not represent his state-ments, but are included because of references within his own testimony. & He was not "adopting" the position of the Governor. Tr. 21629 (Axelrod). Rather, in his role he would "carry out the directive and support the positions taken by the Governor." E He did recall stating in a deposition that statements made therein were on behalf of the Gov. and the State. Tr. 21629-630 ( Axelrod). , H. Nonresponsiveness Regarding Radiological Emergency Communication System (RECS) Lines

1. March 24,1988: LILCO's Second Set of interrogato-ries (LILCO Discovery Exh. 29), No. 'I asked five questions with respect to the RECS lines to State of-fices:

                   "a. What is required to make the existing Shoreham RECS lines to the State operational and ' capable of functioning?' (see Affidavit of James D. Papile, May 11,1987 at 314.)

b. If Shoreham were to operate at 100 percent power, would the State permit the RECS lines to be made operational?

30-4

i l I 1

c. Precisely how far is the nearest Shorcham RECS line drop from each of the following of-fices:

(i) REPG in Albany (ii) the State Police Communications Cen-ter in Albany ( 111 ) the State EOC in Albany (iv) the SEMO district office in Poughkeepsie?

d. Will the State permit LILCO, at LILCO's ex-pense, to relocate the RECS lines at each of the above four locations?

e. Would the State permit LILCO, at LILCO's ex-pense, to relocate the RECS lines to each of the above four locations if Shoreham were 11-censed to operate at 100 percent power?"

2. Aoril 22.1988: Governments' Answers (LILCO Dis-covery Exh. 39) stated responses to part of a and ob-jected to parts b,d, and e as follows:

                                   "The State objects to these Interrogatories on the ground that they call for speculation. Not-withstanding this objection, the State answers that, for the reasons set forth in the April 13 Objection and Offer of Proof, the State has not adopted any plan for Shoreham and will not co-operate with LILCO in developing or imple-menting any emergency plan or response. Be-yond these f acts, the State is unable to provide                      l any further information. The County is unable                          l to respond to these Interrogatories which are                          i directed to the State."                                                l

3. July 14.1988: Testimony of David Axelrod

a. Axelrod testified that the RECS lines had teen disconnected between Shoreham and State of-flees in Albany. Tr. 21711 (Axelrod). He did not know when or under what conditions.

Tr. 21712 (Axelrod).

b. On cross examination, Dr. Axelrod did not re-call receiving a letter from Mr. John Leonard of LILCO requesting that the RECS lines be reconnected. Tr. 21715-716 (Axelrod).

c. The December 21, 1984 letter from John Leonard to David Axelrod (LILCO Discovery Exh. 40) notified the State that "LILCO com-menced fuel load in its Shoreham Nuclear

    'ower Station and will proceed to cold criti-111ty testing some th.4e weeks thereaf ter "

Mr. Leonard noted that in the event of an emergency, "LILCO is obligated to notify New York State and Suffolk County . . . (and] the

      . . . (RECS) would be activated for this pur-pose."     Mr. Leonard further noted that if LILCO could not reach the State via the RECS, "LILCO intends to use commercial telephone as an alternate means of communication."

d. LILCO Discovery Exh. 41 is a memorandum from David Axelrod to Mr. Del Giudice dated January 16,1985 re: LILCO Emergency Notifi-cation. Dr. Axelrod stated:

    "The attached letter from LILCO poses a di-lemma for the State Emergency Management Office. We obviously do not wish to suggest any degree of compliance with LILCO for greater participation in their emergency pre-   i paredness activities. On the other hand, the lack of dedicated communication system places us in a vulnerable situation for emergency no-tification. The use of standard telephones is obviously not an acceptable route of communi-   i cation in the event of a real emergency.

During the course of the recent litigation and i with LILCO, we recognized that our dedicated RECS lines were still operative and discon-nected them on the advice of counsel. Because of the potential need for emergency notifica-tion, I would suggest that we reconnect our RECS phones to enable us to receive timely no-tification of any emergencies which might occur during fuel load and cold criticality.

I I will not respond to Mr. Leonard until I have received some indication from you."

e. Dr. Axelrod testified that the signature on the memorandum is his. See Tr. 21716-717 (Axelrod).

I. State of New York's Refusal to identify Resources

1. February 29. 1988: Confirmatory Memorandum and Order (Ruling on LILCO's Motions for Summary Dispo-sition cf Contentions 1-2, 4-8, and 10, and Board Guidance on Issues for Litigation) at 4. The Board made clear that to rebut the LILCO Plan, the State and County must either say what the "projected be-havior of the Governments" would be, or if a response would be ad hoc they must "specif(y) . . . the re-

                                ~

sources available for such a response."

2. March 24,1988: LILCO's Second Sat of Interrogato-ries and Requests for Production of Documents (LILCO Discovery Exh. 29) sought inter alla identifi-cation of resources in the form of plans, procedures, and personnel.

3. April 6.1988:

a. Letter from Leugers to Miller and Zahnleuter l requested that responses to LILCO's Second Set of Interrogatories, due April 7 he sent to ,

LILCO by federal express rallier than U.S. I mall. i

b. GovernmeMJ Motion for Extension of Time to Respond to Realism Requests, and to Extend Decovery Schedule at 6: "LILCO's Second Dis-covery Requests are lengthy and complex, and would require the Governments' to expend sub-stantial time and effort in responding."

4. April 8.1988: Memorandum (Extension of Board's l Ruling and Opinion on LILCO's Summary Disposition i Motions of Legal Authority (Realism) Contentions and l Guidance to Parties on New Rule 10 C.F.R.  ;

S 50.47(c)(1), LBP-88-9, 27 NRC , slip op. at l 24-25. The Board again stated that "Intervenors . . . l l

must specify the resources that are available for a projected response. . . ."

5. ADdi 11,1988: In a conference call, the Board grants the Governments' Motion for an extension of time.

See Confirmatory Memorandum and Order (April 12, 1988).

6. April 13.1988: In written prefiled testimony, David Axelrod stated "I cannot speculate what specific ac-tions the State would take, when they would be taken, or what resources might be available" if Shoreham were licensed and there were a serious accident. Di-rect Testimony of David Axelrod on Behalf of the State of New York (LILCO Discovery Exh. 34 at 4),

Attachment 2 to Governments' Objections to Portions of February 29 and April 9 Orders in the Realism Re-mand and Offer of Proof (April 13, 1988). In Affidavit of Mario M. Cuomo, attached to and made a part of Axelrod's testimony, the Governor said "the State would not use LILCO's resources or turn over to ULCO any State resources, including the State emer-gency broadcast system." Cuomo afficavit at 0

7. April 20,1988: Government's Objections to LILCO's Second Set of Interrogatories Regarding Contentions 1-2, 4-8, and 10. The State of New York and Suffolk County formally objected to 62 of ULCO's 116 inter-rogatories. See Supplement to LILCO's Response to Governments' April 13 Objection and Motion in the i Alternative to Compel Discovery (May 2,1988) at '

6-13 and Att.14. l

8. April 22,1988:

a. Governments' Answers and Additional Objec- 1 tions to LILCO's Second Set of Interrogatories Regarding Contentions 1-2, 4-8, and 10 (LILCO i Discovery Exh. 39). These answers were gen- '

erally nonresponsive to the request for identi-fication of resources. See ULCO's May 2,1988 i Supplement at 6-13 and Att.14. I

b. Deposition of David Axelrod: When ULCO in-quired about the plans and resources available to New York State to respond to radiological emergencies, Dr. Axelrod was evasive and counsel interrupted with objections on grounds

of relevancy. Deposition Transcript of David Axelrod (LILCO Discovery Exh. 36 at 65-66, 93-103).

9. A pril 29.1988:

a. Deposition of REPG: Papile could not specu-late regarding whether the generic portion of the state plan identified resources that could be employed in responding to a Shoreham emergency. Deposition Transcript of Papile, Czech and Baranski at 85-86.

b. Depositon of DeVito: DeVito stated "absent a plan for the purpose, I have absolutely no idea what resource might be called upon to be uti-lized under a whole host of circumstances."

Deposition Transcript of DeVito (LILCO Dis-covery Exh.18 at 96-100).

10. May 2.1988: Governments' Response to LILCO's April 22 Request for Dismissal of the Legal Authority Contentions. The State and County argue that be-cause they have no plan for responding to a Shoreham emergency, "the Governments' cannot state what re-sources would be available or would be used to re- ,

spond to a Shoreham emergency, how they would be  ; used, or how long such a hypothetical response might j take. Such data could be presented, if at all, only if l the Governments had a plan detailing their response." i Governments' Response at 4.

11. May 10.1988: Prehearing Conference - Board re-opened depositions of Halpin and Axelrod, and or-dered responses to interrogatories requesting infor-mation about emergency plans of other nuclear

, f acilities. Tr. 19381-382.

12. May 13.1988: Governments' Response to "Supple-ment to LILCO's Response to Governments' April 13 '

Objection and Motion in the Alternative to Compel vance (y. ofDiscover resources" "The Governments available for responsedo not to denya such rele- i i Shoreham emergency) and to the extent such details are available, the Governments have provided them. However, the Governments reiterate that they can-not create ' details' and listings of 'the resources avall-able for such a response'. . . (1)t is clear that a 'do

l not know' answer is an adequate response under the NRC rules." Id. at 6.

13. May 24,1988:

a. Letter from Zahnleuter to Sisk enclosing seven documents in response to the Board's May 10 Order, and stating that they are "continuing to search for responsive documents and will pro-duce them as appropriate."

b. Board ruling grants LILCO additional discovery ,

with respect to witnesses and relevant re- l sponsas to interrogatories. j

14. June 3. 1988: State of New York's Response to LILCO's Second Set of Interrogatories Regarding Con-tentions 1-2, 4-8, and 10 (LILCO Discovery Exh. 8) in ,

response to May 10 Board Rulings. '

15. June 7.1988: LILCO's Third Set of Interrogatories ,

and Requests for Production of Documents to Suffolk i County, New York State, and the Town of Southampton regarding knowledge and production of the SCEOP.

16. June 9,1988: Governments' Notice That The Board Has Precluded Continuation of The CLI-86-13 Re- ,

mand. Again, the Governments state that they will not "interface" with LILCO regarding resources avail-able for a Shoreham emergency. Governments' No-tice at 1-3.

17. June 10,1988: Teleconference: Counsel states that there can be no interface with LILCO. Tr. 20854-855, 20861. State and County refuse to comply with dis-covery order. Tr. 20860-862. The Board decides to dismiss the realism contentions, but retains jurisdie-tion rgarding discovery matters. Tr. 20862. i

18. June 15, 1988: Governments' Response to Board l Order of June 10, 1988, Concerning The CLI-86-13 l Remand. The Governments again state that they ,

would not interface with LILCO. Governments' Re- l sponse at 2. I l 1 36-

19. June 17,1988: Teleconference: Board compels a:1-swers to LILCO's Third Set of Interrogatories by June 21,1988.

20. June 20,1988: Governments' Motion for Licensing Board to Vacate June 17 Order regarding discovery.

21. June 21,1988: Letter from Sisk to Zahnieuter con-firming a telephone conversation in which the State indicated it would make no further response to Inter-rogatories and document production requests during the pendency of its Motion to Vacate.

22. June 23.1988: Governments' Motion for Stay of June 17 Order regarding discovery,

23. June 24,1988: Teleconference wherein Board decided to hold a hearing on the "integrity of the proceed-ings." Tr. 20923-925.

24. June 28, 1988: Governments' Response to Board Order of June 24,1988 regarding hearings.

25. June 29,1988: Teleconference: Board compels the Governments to answer LILCO's Second and Third Sets of Interrogatories and Requests for Production of Documents, and to verify the NYS REPP and the NYS DPP. Tr. 20934-935.

26. June 30,1988: Board Memorandum and Order (Ruling on Intervenors' Motions to Vacate and to Stay Licens-ing Board's June 17 Order) denying both motions.

. 27. July 5.1988:

a. State of New York's Response to LILCO's Third Set of Interrogatories and Requests for Produc-tion of Documents,

b. Letter from Zahnleuter to Sisk enclosing 13 documents responsive to LILCO's Second Set of Interrogatories. 1 l

28. Testimony of State Witnesses Regarding Resources

a. Papile testified that his knowledge of resources the State possesses for use during a nuclear  !

plant emergency are "(n]ot very thorough . . . I l l

                                                                                                                                                                                          ^ ~ -

That is more the responsibility of SEMO " TR. 20978 (Papile). He has knowledge of ra- t

diological equipment but not personnel.

Tr. 20979 (Papile). He further testified that "we do not have resources in the State to send down there to taka part in an exercise at this time." Tr. 21015 (Papile). "I am on the ra-diological part of, sir, and we do not have the resources for the radiological part. I will give that answer." Tr. 21016 (Papile).

b. DeVito testified that he had no recollection of even participating in a discussion or meeting regarding the ability of the State to respond to a Shoreham emergency. Tr. 21117 (DeVito).

When referred to a statement in his deposition that he doesn't have the kind of expertise to identify State resources that could be em-ployed to respond within the ingestion pathway of Shoreham and asked !f it is still accurate, he responded that "I haven't gained any greater ' expertise as a result of these hearings, coun-selor." Tr. 21236 (DeVito). Within SEMO there is an REP grcup that would know about ra-diological matters. Tr. 21236-237 (DeVito),

c. Axelrod testified that the statement in his tes- l timony that he could not speculate what ac-tions the State would take or what resources i might be available for a Shoreham emergency j is still accurate. Tr. 21,630-631 (Axelrod). I Axelrod was asked three times whether any of the resources in the NYS REPP (LILCO Discov-ery Exh. 6) and the NYS DPP (LILCO Discovery Exh.1) could be used in responding to an emer-gency at Shoreham. Tr. 21648-650. Amid sev-eral objections, his response was:

4

                                                                                                    "(!)n the absence of a site-specific identifica-tion, the resources, the plume modeling, all of the elements that are identified within each of the seven site-specific plans that are attached                                                4 to the Radiological Emergency Preparedness                                                     l Plan, it would be difficult to determine how                                                   l such resources might be made available with-                                                   l
  ;                                                                                                 out clear indications of time, place, all of the elements that would relate to the site-specific issues that would address the Shoreham                                                         I facility." Tr. 21648 (Axelrod).

i I i

          . _ _ _ _ _ . . _ _ _ . , _ _ , _ _ _ . , . _ _ _ . _ _ . . . _ _ _ _ _ . . . _ ~ _ . _ . _ _ . _ _ _ _ _ _ _ _ . . _ _ _ _ _ _ _ _ _ . _ _ . _ _ . - _ , _ _ _ _ _ . _ _ _ _ -

I l

d. Germano testified that Procedure K to the l NYS REPP contains a "listof maps, resources."

Tr. 21778-779 (Germano).

e. Davidoff testified that the SCEOP (LILCO Dis-covery Exh.10)is integrally related to the NYS DPP (LILCO Discovery Exh.1). Tr. 22053 (Davidoff).

29. The DPC's "review" of LILCO's review of Shoreham Plan

a. Axelrod testified that the DPC had never re-viewed a plan for Shoreham, because "there has never been a plan, as f ar as the Commis-sion was concerned." Tr. 21618 (Axelrod). If local plans were submitted for approval, SEMO would keep such records. Tr. 21658 (Axelrod).

He later testified that the determination was mace that no plan can be made for Shoreham. Tr. 21699 (Axelrod). This determination was made in 1983 based cn expert information pro-vided to the Governor and SC. Tr. 21699-700 (Axelrod). In Axelrod's deposition, he said the DPC did make such a determination "based on recommendations from staff " see LILCO Dis-covery Exh. 36 at 30, in a proceeding in which the DPC did evaluate a Shoreham plan. LILCO Discovery Exh. 36 at 29-32; Tr. 21701 (Axelrod). LILCO Discovery Exh. 37 (partial < transcript of March 2,1983 DPC meeting) con-stitutes the entirety of the DPC's deliberations and decisions on this matter. Tr. 21,703 (Axelrod). Then, Axelrod was confronted with his 1984 affidavit (LILCO discovery Exh. 38) which stated that the "DPC itself has never even convened a meeting for the purpose of discussing the work of the DPC Staff per-talning to Shoreham." % at 2; Tr. 21705-706 (Axelrod).

b. Davidoff testified that the REPG staff made an analysis of the LILCO Plan, but issued no find-ing or recommendations to the DPC. Tr. 22022 (Davidoff). He confirmed that the State '

REPG's analysis of the Shoreham plan ws contained in LILCO Discovery Exhibits 51 and 52_,(admitted Tr. 22046), e&, Tr. 22065-067 l I i 39-  ! I 1

          -. pw,,.--,    4  y,  w --- -   - - -  - - -     - , .   - -,r-- ,--.

     .         . ._. ... ..._.                     ._.. __ .                      .-_ _ . _ .                    . = . . ~ . . . . _ _ . . . _ . ,_.                       - _          .

p i i 4 , i W , (Davidoff), and could not deny that the evalua-tion was positive, et, LILCO Discovery ' Exh. 53 (admitted Tr. 22046). i t i a 4 s I

                                                                                                                                                                                             ?

) 4  ! i i ' z r J i i e' , 4 . r d , a 9 1 i t I  ! 1 l

 ,                                                                                                                                                                                          -?

j k i, I l l t 4 4 1 l l i 9 0 3 i lt E p l k )  !

       ~ ~ ~ . y, x- ---,  m..-,-. .,..-.... , ..m-.&,. e.---c.-w.,p.w.,,-,,.-g--.very,,,m,,-,,.,,.%._yww-~                                    m..-p,...y.,.q--~.m.%        .m.r,,_,rp

    .~e - AKa - w A +_nSS,..               ~w a e

ATTACHMENT S i

                                                         .               1 l

l 1 e

                  -        . _ . _ _ _ _ _                 ____________J

I Attachment 5 Sur folk County Bnergency Operations Plan (Version Produced to LILCO on July 8, 1988) Corresponding or Potentially No. of Pages Corresponding Document Produced of Previously Section Title Description; No. of Pages to LILCO in 1982-83 Discovery Produced Document

Table of Contents Four (4) pages A. General 1. Introduction - Prepared by State; Eight (8) pages A. General 2. Basic Plan - Prepared '

by State; Twenty-one (21) pages A. General 3. Legislative .Tuthority - Legal Statutes Signed into Law; Sixteen (16) pages Annex A Command and Control; Eight (8) pages Annex A "Not applicable to tha

,                                                       Appendix 1     County"; One (1) page Annen A           "Not' applicable to the
 ,                                                      Appendix 2     County"; One (1) page Attachments a,b,c l

Corresponding or Potentially No. of Pages ) Corresponding Document Produced Section Title of Previously Description; No. of Pages to LILCO in 1982-83 Discovery Produced Document t l Annex A Succession to Command Emergency Operations Plan One (1) page l Appendix 2 Lines of Succession to the Annex A, App. 2, Att. D (for l Attachment d Local Chief Executive and Police Department'only); i Officials; Thirty-four } follows SC Bates No. 000090 (34) pages (Produced in 1983) I i Annex A Local Law Establishing

Appendix 2 Lines of Succession; q Attachment e Ten (10) pages Annex A Line of Authority; Appendix 3 Six (6) pages Annex A Local Executive Orders;

• Standard Operating Procedure Five (5) pages Appendix 4 Standard Operating for Use 3n the Event of i

Procedure for Use in the Natural Disasters, Man-Made Event of Natural Disasters, Disasters and Nuclear Attack; Man-Made Disasters and SC Bates No. 000266 (Produced , Nuclear Attack; Twenty-one in 1982 and 1983)

(21).pages Annex A Jurisdictions; Appendix 5 Four (4) pages j Annex A EOC Floor Plan;

 ;   Appendix 6   Four (4) pages J

i ) 1 4 1

t l Corresponding or Potentially No. of Pages j Corresponding Document Pro:1uced i Se;. tion Title of Previously Description; No. of Pages to LILCO in 1982-83 Discovery Produced Document Annex A Division of Emergency Department of Emergency Thi.rty-seven Appendix 7 Preparedness Emergency Preparedness Emergency (37) pages Directory; Thirty-one Directory; SC Bates No. (31) pages i 4060213 (Produced in 1982) Annex A Increased Readiness Disaster Action for Appendix 8 Two (2) pages and Attack Warning; County, Townships, and Three (3) pages Villages Governmental and Emergency Prepared-ness Personnel; follows SC Bates No. 000173 (Produced in 1983) Annex A County of Suffolk County of Suffolk Fifty-five Appendix 9 Disaster Prepared- Disaster Prepared- (55) pages ness Plan; Fifty-five ness Plan; Bates No.4010022 i (55) pages (Produced in 1982 and 1983) l Annex A Disaster Relief Act of Appendix 9 1974; Twenty-three i Attachment a (23) pages

, Annex A         Presidential Executive

Appendix 9 Order 11795; Three 1 Attachment b (3) aages

, Annex A         Federal Disaster Assistance Appendix 9    Administration Regulations; 4

Attachment c Twenty-one (21) pages 1 + _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _

_4_ Corresponding or Potentially No. of Pages Corresponding Document Produced of Previously Section Title Description; No. of Pages to LILCO in 1982-83 Discovery Produced Document Annex A I. Brookhaven Township Plan Appendix 9 I. Brookhaven Township Plan Nine (9) pages II. Brookhaven Staff Personnel; II. Brookhaven Staff Personnel; Attachment d Twelve (12) pages SC Bates No. 000633 - ([ oduced in 1983) Annex A Activation of the County Appendix 10 Activation of the County Ten (10) pages Emergency Operating Center; Emergency Operating Center Ten (10) pages SC Bates No. 000863 (Produced in 1983) . Annex A EOC Operation; Appendix 11 Emergency Operating Plan Sixteen (16) pages Thirty-four (34) pages Annex A, Appendix 11; follows Bates No. 000863 (Produced in 1983) Annex A Situation Reports; Appendix 12 Five (5) pages Annex B Adh.inistration Section; Nine f9) pages Annex C Civil Ai.* Patrol; Twenty-two (22) pages Annex D Communici.tions and Warning System; Fifty-one (51) pnges

                                                                                                      - S-Correspostding or Potentially              No. of Pages Corresponding Document Produced            of Previously Section Title Description; Mo. of Pages                                                               to LILCO in 1982-83 Discovery              Produced Document Annex E       Fire Service; Six                                                                       Hurricane Disaster Plan                    Three (3) pages (6) pages                                                                              Fire Island, New York Fire Service; SC Bates No.

001227 (Produced in 1983) Annes F Health Service; Eleven (11) pages Annex G Manpower Service; Ten (10) pages 4 Annex H Police Service; Police Service; follows ' Thirty-six (36) pages Sixteen (16) pages SC Bates No. 000090 i (Produced in 1983) Annex H-1 Sheriff's Department; Emergency Preparedness Seven (7) pages Twenty (20) pages Emergency Operations Plan for Suffolk County Sheriff's Office Riverhead, New York; follods Bates No. 000938

!                                                                                                       (Produced in 1983)

Annex I Public Information Servic e Four (4) pages i Annex J Public Works Ser 't Ten (10) pages

)

_ _ _ _ . _ _ . _ _ _ _ _ . _ _ _ _ _ _ _ _ -

• _ _ - - - _ _ _ _ m -_. ____ _-_ = _ _ _ _ . - _ _ _ _e _ _-__ _ - -_ _-_-_m __ - _ - _ _ - _ _ _ _ _ - .

Corresponding or Potentially No. of Pages Corresponding Document Produced of Previously

  - Section Title Description; No. of Pages     to LILCO in 1982-83 ~11scovery i                                                                                 __

Produced Document ! onnex K Radiological Intelligence , 1 Section (not included with EOP) One-hundred i j and Sixty (160) pages I

 - Annex L        Rescue Service; Fifteen (15) pages Annex M        Resources Section;

! Nine (9) pages Annex N School Service; Twenty-seven (27) pages I Annex 0 Social Services Section; Thirty-seven (37) pages 4 Annex P Community Shelter Plan - 1 "See Volume 2" (not 3 included with EOP) Annex Q Crisis Relocation Plan -

                  "See Volume 3" (not included with EOP)

M AL PAGES: 762 161 i I

LILCO, July 26, 1988'

                                                                            %f CERTIFICATE OF SERVICE '88 4. 28 A9:51 a,                             !

Q "F8:( t s. In the Matter of LONG ISLAND LIGHTING COMPANY

                                                                            $!a'(("E                           .

(Shoreham Nuclear Power Station, Unit 1) l Dceket No. 50-322-OL-3 I hereby certify that copies of LILCO'S SUPPLEMENT TO ITS JUNE 15 BRIEF ON DISCOVERY SANCTIONS IN LIGHT OF SUBSEQUENT DEVELOPMENTS were served this date upon the following by hand as indicated by one asterisk, by Federal Express as indicated by two asterisks, or by first-class mail, postage prepaid. James P. Gleason, Chairman

• Adjudicatory File Atomic Safety and Licensing Board Atomic Safety and Licensing 513 Gilmoure Drive Board Panel Docket Silver Spring,, Maryland 20901 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Jerry R. Kline
• Atomic Safety and Licensira Edwin J. Reis, Esq.
• Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flint North East-West Towers, Rm. 427 11555 Rockville Pike 4350 East-West Hwy. Rockville, MD 20852 Bethesda, MD 20814 Herbert H. Brown, Esq.
• Mr. Frederick J. Shon
• Lawrence Coe Lanpher, Esq.

Atomic Safety and Licensing Karla J. Letsche, Esq. Board Kirkpatrick & Lockhart U.S. Nuclear Regulatory Commission South Lobby - 9th Ficor East-West Towers, Rm. 430 1800 M Street, N.W. 4350 East-West Hwy. Washington, D.C. 20036-5891 Bethesda, MD 20814 Fabian G. Palomino. Esq. ** Secretary of the Commission Richard J. Zahnleuter, Esq. Attention Docketing and Service Special Counsel to the Governor Section Executive Chamber U.S. Nt clear Regulatory Commission Room 229 1717 H Street, N.W. State Capitol Washington, D.C. 20555 Albany, New York 12224 Atomic Safety and Licensing Alfred L. Nardelli, Esq. Appeal Board Panei Assistant Attorney General U.S. Nuclear Regulatory Commission 120 Broadway Washington, D.C. 20555 Room 3-118 New York, New York 10271

                     --        ,  -_ ,    ..     - . - . - , -             - --          -.--    . . - - -- - l

George W. Watson, Esq.

• Ms. Nora Bredes William R. Cumming, Esq. Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Evan A. Davis, Esq.

Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New York 12224 Albany, New York 12223 E. Thomas Boyle, Esq. Stephen B. Latham, Esq. ** Suffolk County Attorney Twomey, Latham & Shea Building 158 North County Complex 33 West Second Street Veterans Memorial Highway P.O. Box 298 Hauppauge, New York 11788 Riverhead, New York 11901 Dr. Monroe Schneider Mr. Philip McIntire North Shore Committee Federal Emergency Management P.O. Box 231 Agency Wading River, NY 11792 26 Federal Plaza 1 New York, New York 10278 Jonathan D. Feinberg, Esq. I New York State Department of Public Service, Staff Counsel Three Roc %efeller Plaza Albany, New York 12223

                                            ._        .      YN Don'111d P. Irwin 1

Hunton & WiHlams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 1 DATED: July 26,1988 e

                  -- -,          .           - + -       ---    ----r    - e}}