ML20151N674
| ML20151N674 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 08/01/1988 |
| From: | Sisk K HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#388-6848 OL-3, NUDOCS 8808090063 | |
| Download: ML20151N674 (38) | |
Text
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LILCO, August 1,1988 00LMETED U3Niir O
'88 AUG -3 P3 :48 UNITZD STATES OF AMERICAS r.
,r NUCLEAR REGULATORY COMMISSION 'i.. <
U O ri t.Nr 4 g.
Before the Atomic Safety and Licensing Board i
In the Matter of
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LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shareb1un Nuclear Power Station,
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Unit 1)
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O LILCO'S REPLY BRIEF ON DISCOVERY SANCTIONS O
O Hunton & Williams 707 East Main Street P. O. Box 1535 O
Richmood, Virginia 23212 August 1,1988 O
O 8808090063 880801
{DR ADOCK 05000322 j
s O
LILCO, August 1,1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
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l LILCO'S REPLY BRIEF ON DISCOVERY SANCTIONS I
Hunton & W111Innte
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707 East Main Street P. O. Box 1535 Richmond, Virginia 23212 August 1,1988
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s TABLE OF CONTENTS i
I.
THE ISSUE BEFORE THE BOARD IS WHETHER INTERVENORS HAVE FAILED TO COMPLY WITH DISCOVERY PROCESSES.................. 1 11.
SUFFOLK COUNTY'S CONCLUSIONS AS TO WHAT THE EVIDENCE ES-TABLISHES REGARDING THE COUNTY'S COMPLIANCE WITH DISCOV-f ERY IN 1982-83 AREFLAWED...................................
4 A.
The Evidence Clearly Indicctes that the SCEOP Did Exist in its Composite Form in 1982-1983...............................
6 B.
Several Important Components of the SCEOP Were Not Produced in
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1982-83..............................................
10 C.
LILCO First Became Aware of the Composite SCEOP in May,1988...
13 III.
NEW YORK STATE HAS OBSTRUCTED DISCOVERY BY NUMEROUS MEANS...................................................
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IV.
OBSERVATIONS ON "FURTHER NRC STAFF COMMENTS."............. 28 V.
S U M M A RY A N D C O N C L U SIO N.................................
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I.
THE ISSUE SEFORE THE BOARD IS WHETHER INTERVENORS HAVE FAILED TO COMPLY WITH DISCOVERY PROCESSES.
The Suffolk County and State of New York Supplement to June 15, 1988 Filing (July 26,1988) (hereinaf ter "Intervenors' Supp."), not suprisingly, attempts to draw an
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exceedingly narrow line around the scope of the recent proceeding befcze the Board, Not only have the Intervenors sought to portray the recent hearings as being ilmited to document disecvery (presumably excluding numerous abuses of the deposition discovery process and evasive interrogatory answers), they also have attempted to confine the
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Board's consideration to the production or nonproduction of the County of Suffolk, State of New York Emergency Operations Plan (SCEOP). See, e.g., Intervenors' Supp.
at 2-3 & n.3; 27-28 & n.18. Intervenors even claim that "it would constitute a denial of
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i due process" for the Board to consider anything beyond the circumscribed issue of the v
1 production or nonproduction of the SCEOP. Ld. at n.18. Intervenors' feigned ignorance of the purpose a.nd scope of the recent hearing, and their claim of lack of "notice", con-veniently ignore several f acts.
First, the Board initially determined to dismiss the realism contentions in a teleconference on June 10, 1988. The immediate reason was the Intervenors' refusal to
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go forward with Board-ordered depositions of State and County personnel.
See, el, Tr. 208S0-862 (Judge G!eason). The Board found that the "Governments' Notice" of that
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date constituted "a refusal to procetx! with the Board's orders on discovery of the real-
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ism issues. Discovery goes much beyond interf ace." Tr. 20862 (Judge Gleason). The Board determined to retain jurisdiction of discovery matters, and specifically the re-cent production of the SCEOP. The purpose of the recent hearing was to provide 1
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. _ _ _ _ _ _ _ _ infermation for the Board to consider in determining the secpe of the sanctions to be imposed against Intervenors, el, Tr. 20932 (Judge Gleason), which would include dis-missal of the realism contentions either on procedural grounds as a sanction or on the merits af ter holding the Intervenors in default, Tr. 20862, 20872 (Judge Gleason), and might include dismissing Intervenors as parties to this proceeding, Tr. 20923 (Judge Gleason).
Second, the Board made it clear when it retained jurisdiction on and af ter June 10 that it was concerned with "whether the discovery requirements have been complied with in this proceeding." Teleconference of June 17,1988, Tr. 20875 (Judge
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Gleason). In response to comments by LILCO's counsel, the Board stated:
Let me say, Mr. Sisk, as I've tried (to] get clear in my responses to Mr. Lanpher, the issue that we're involved in here is whether the discovery reautrements have been complied with in this pro-ceedt,n_g.
This does not only involve in my view the integrity of NRC'S pro-cedural rules of practice, but it does involve substantive matters concerning the rights and responsibilities of parties in these pro-ceedings.
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We have a responsibility - this board has a responsibility to re-solve that matter, to the extent that an administrative board can resolve it. If we are unable to resolve it, we may have' to refer the matter to other levels of the NRC. But that is the principal reason we are retaining jurisdiction.
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We are not attempting to draw a line around the kind of questions I
of the documents we asked. We are drawing a line around the purpose for which this inauiry is being authorized, if it is to be au-thorized.
Ld., Tr. 20875-876 (Judge Gleason) (emphasis added). Indeed, the State's counsel ac-
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knowledged what the Board had said:
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And af ter Mr. Sisk's discuSion, I think you said that the issue would be whether the discovery requirements have been compiled with in this proceeding.
Tr. 20879 (Zahnleuter). The Boe.rd stated that any further depositions would include "exploring the knowledge and lack of knowledge" of State personnel concerning the SCEOP, Tr. 20883 (Judge Gleason), and "whatner ths.re are other plans that should have been produced and have not been produced." Tr. 20885-886 (Judge Gleason).
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The Board further stated:
Certainly those kinds of questions are relevant to this proceeding that we are involved in here, because it raises once again the issue as whether the discovery processes have been complied with.
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So I don't want to just narrow this thing in such a circumscribed manner that it just allows people to say yes or no in a certain issue which doesn't help the overall elevation (sic, evaluation] of the issue and illumination of the issue so we can decide things if we are called upon to decide them.
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Tr. 20886 (Judge Gleason) (emphasis added). While the Board math cleer that "the basic issue is whether state and county emergency plans may have been withheld during the proceeding," Teleconference of June 24,1988, Tr. 20924 (Judge Gleason),
h it also made it repeatedly clear that the scope of the hearing, while narrow, was not confined solely to that issue.
Third, the Board also made it clear that, even as to document discovery, the
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hearing would not be confined to nonproduction of emergency plans. Indeed the Board, in the teleconference on June 29,1988, ordered the Intervenors to produce to LILCO by July 6 "any documents that relate :) emergency plans or relate to things that should have been produced in connection with emergency plans...." Tr. 20934 (Judge Gleason). The eleventh-nour document productions by both the State and the County in resp';,nse to that order were substantial.
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O O Fourth, at the conclusion of the hearing on July 19, 1988, the Board directed the parties to submit "any additions to their prior filings which were dated June 15 relating to the proposed sanctions." Tr. 22074 (Judge Gleason). The June 15 filings, O
of course, addressed the appropriate scope of sanctions based on ubuses of the dis-covery procas, not just nonproduction of the SCEOP. The Board specifically or-dered the parties to address "the issue of abuses concerning the discovery process."
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.r_d.
Finally, and fundamentally, it is beyond the pale for Intervenors to suggest that they are ignorant of or have no "notice" of the specifics of their approach to
-O discovery in this proceeding. They are far mote intimately familiar with their own tactics in discovery than the Board, LILCO, or the other parties will ever be, Thus, Intervenors' attempt to cramp the framework of the Board's analysis on O
sanctions represents yet another attempt by Intervenors to define allissues in this proceeding, and address them, only as they see fit. The Board correctly defined the scope of its inquiry on sanctions, and LILCO's Supplement to its June 15 Brief on Dis-0 covery Sanctions in Light of Subsequent Developments Duly 26,1988) (hereinaf ter "LILCO Supp.") detailed the discovery abuses that have Mn revealed.
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SUFFOLK COUNTY'S CONCLUSIONS AS TO WHAT THE EVIDENCE ESTAB-LISHES REGARDING THE COUNTY'S COMPLIANCE WITH DISCOVERY IN 1982-83 ARE FLAWED.
Intervenors' Supp., with respect to Suffolk County's assertion that it has "fully c mpHed with its discovery obligations," M. at 2, touches on few topics and makes O
few arguments not already addressed in LILCO's Supp. LILCO's Supp., which more accurately and comprehensively characterizes and analyzes the evidence presented O
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during the recent hearing in Bethesda, will therefore be referenced wherever appro-priate. This Reply will not address the County's assertions in detall, point by point; however, certain of the County's arguments do merit particular attention.
The County submits that the evidence from the recent hearing "establishes" four general "f acts." In sum, the County alleges that:
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it is "impossible to reconstruct, or to determine precisely"
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whether the SCEOP existed in its composite form during the 1982-83 discovery periods; that 2.
"the County produced in 1982-83 the "most important" por-tions of the SCEOP, including the Disaster Preparedness Plan, which the County characterizes as being the "heart of the present-day EOP"; that 3.
the County provided more than 7,000 pages of documents to LILCO in 1982-83, that many of these documents were simi-lar in content to pcrtions of the SCEOP, and that this evi-dences the County's good faith intent to produce the SCEOP in 1982-03; and that 4.
LILCO has not only been aware of the existence of the SCEOP "for many yaa:t" but has had a copy of the SCEOP "since at least since 1966" Intervenors' Supp. at 4-7. The County concludes, based on these four "f acts," that there
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is "no basis for finding that Suffolk County failed to produce documents responsive to discovery requests in 1982-83." M. at 7.
The County's conclusion is erroneous because the "facts" on which it is based are not true. First, as LILCO demonstrates in its Supp., the preponderance of the evidence indicates that the SCEOP did exist in substantially its present form at the time LILCO propounded its discovery requests in 1982-83. Second, several of the most crucial com-
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ponent: of the SCEOP (components which clearly were in existence at least in 1983) were not produced to LILCO pPr to May 1988. Third, the f act that the County l
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O O produced a large, undifferentiated assortment of emergency plans and materials in 1982-83 is simply irrelevant to the issue of the County's nonproduction of the SCEOP.
Finally, as is shown tu LILCO's Supp., the clear weight of the evidence establishes that O
LILCO did n_ot receive the composite SCEOP at any time prior to May 1988.
A.
The Evidence Clearly Indicates that the SCEOP Did Exist in its Composite Form in 1982-83 O
In its Supplement, the County argues that there is no clear evidence... that any "integrated" EOP beyond the County's Disaster Preparedness Plan even existed as of 1982-83, much less what such an "integrated" EOP consisted of. Rather, the evidence, at best, is inconclusive as to the O
precise contents and extent of the EOP in 1982-83.
Intervenors' Supp, at 8. This suggestion that "no one can really know" what the SCEOP looked like in 1982-83 more refleats the County's refusal to face the facts than it does O
any absence of f acts. As LILCO stated in its Supp., the "evidence that the SCEOP ex-1sted as of 1982-83 in present or virtually present form (subject to updatings of names, addresst...nd telephone numbers) is overwhelming." LILCO Supp. at 26. It is unneces-O sary to repeat here the documentary and testimental evidence that supports that core clusion. The date notations found on the various parts of the SCEOP, the Table of Con-tents (dated "1/82") appended to the updated version of the SCEOP (LILCO Disc. Ex.
O 10), and the testimony of the County's own witnesses all speak for themselves.
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LILCO Supp, at 26-28.
The County makes little effort to reconcile its position with this conflicting doc-umentary and testim nial evWnce, f r instan e, their anempt to explain away the O
date notations on the SCEOP simply blinks the f acts:
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) Nonetheless, and de%ite the dates and notations which appear on some documents which subseauently became part of the EOP, there la no evidence to establish that as of 1982 or 1983, the County maintained a single integrated document which constituted the County EOP and which contained anything other than the County's
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Disaster Preparedness Plan.
Intervenors' Supp. at 12 (footnote omitted) (emphasis Added). To this argument, the County adds the claim that
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(e]ven the EOP notations on the documents LILCO acknowledges it received in 1982 and 1983 do not necessarily mean that those documents, in f act, were part of the EOP at '. hat time. For exam-ple, Mr. Richard Jones explained that one of the documents in Suffolk County Disc. Ex.1 - the Annex H p!!ce procedure - was a beginning effort by the police to formulate an annex to the EOP.
3 Tr. 21308-89 (R. Jones). Thus, some of t'.le annotated documents r'
may have been only draf ts in 1982-83.
Ld. at 12 n.8.
The County's hypothesis that the Sulfolk County Disaster Preparedness Plan
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(SCEOP, Annex A Appendix 9) more or less constituted the entirety of the SCEOP in 1982-83, and that any annexes in existence during that time period were only draf t ver-sions not integrated into a larger whole, is facially plausible. However, the County's psition cannot be squared with information contained in previously produced discovery documents which demonstrates conclusively that: (1) a document called the Emergency Operations Plan, distinct from and larger than the Disaster Preparedness Plan, existed
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as early as September 1981; and that (2) Annex H, and probably other annexes as well, were already discrete and integrated parts of this Emergency Operations Plan at that time.
l One of the documents contained in County Discovery Exhibit 1 (designated on its first page by S>tifolk County Bates No. 000090), in addition to containing an early ver-sion of police Annex H, also has attached to it a series of memoranda pertaining to the D
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SCEOP and Annex H and sent between members of the Suffolk County Police Depart-ment. One memorandum, dated "18 Sept.1981," from Domhuck Parella to Edmund M.
i Erickson,(Sulfolk County Dates No. 000091-92) reads, in pertinent p;..t t, as follows:
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the above subject (1, Police Service Annex to the Re:
3 Suffolk County Emergency Operations Plan Project #81-R-215], I contacted Mr. Don Terrell, Plans und Training Off t-cer for the Suffolk County Department of Emergency Pre-paredness. Mr. Terrell advised me that this Department's previous annex to the County Emergency Operations Plan i
was good, but some modifications should be riven to the no-ti!! cation crocedure. I advised Mr. Terrell that if I had to elaborate on the notification procedure, I should modify other areas as well. Mr. Terrell stated that he did not know if other areas were affected and that I should contact Mr.
l Bruce McQueen, Executive Director of the New York State Disaster Commission in Albany, N.Y. for further clarifica-tion.
(emphasis added). Elsewhere in the memorandum, Mr. Parella indicates that he had "reviewed the various emergency plans" maintained by the County and notes that
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(p]rimarily we have one major plan, the Suffolk County Emergency Operations Plan.
This plan is maintained by Emergency Preparedness Department and is continuously being updated. The contents of this plan consist of general function overviews from County agencies. This plan is not available to the public. In front of this book is the Suffolk
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County Disaster Preparedness Plan printed ("Jan."] - 1981.
This plan, an overview also, is available to the public.
(emphasis added).M It is thus clear from the Parella memorandum that as of 1981 there
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QM exist an Emergency Operations Plan that was distinct from the Disaster V
During the hearing Mr. R. Jones, at the direction of counsel for the County, read a portion of this memorandum into the record. Tr. 21338-39 (R. Jones, Letsche) While the County apparently believes that the portion of the memorandum which was read
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supports the County's position, when read in its entirety the memorandum in fact de-molishes the County's assertion that in 1982-83 the SCEOP consisted entirely of the Di-saster Preparedness Plan.
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Preparedness Plan, though the Disaster Preparedness Plan was part of the larger EOP.
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F It is alto clear imm the memorandum that despite Mr. R. Jones' testimony (or, l
rather, the County's characterization of that testimony). the version of Annex H pro-vided to LILCO in 1983 was noi a draf t. Rather, as of September 1981, police Annex H was already considered to be a part of the SCEOP and was in the process of being up-dated;it was not being written for the first time.
In sum, the County's conclusion that it is impossible to tell just what the SCEOP consisted of in 1982-83, and that it probably contained little more than the Disaster
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Preparedness Plan, simply falls to account for a vast amount of evidence that points to the opposite conclusion. Moreover, if the County disputes this conclusion, which fol-lows inexorably from the evidence now in the record, then it is incumbent on the Coun-
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ty to provide some evidence that effectively rebuts that conclusion. The County is in custody of the SCEOP and County employees have long maintained it. It was the Coun-ty's responsibility to proffer witnesses who could have spoken definitively about the matters at issue.E Given that the County was apparently unable or unwilling to do so, F
Moreover, the fact that the Disaster Preparedness Plan was available to the pub-11e while the Emergency Operations Plan was not suggests that in 1981 the EOP already
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contained such confidential material as lines of succession / call-up lists (Annex A. Ap-pendix 2. Attachment D), emergency phone numbers (Annex A, Appendix 7) and re-source inventories. In addition, Mr. Parella's observation that EOP "is continuously being updated" is noteworthy because it also indicates the inclusion within the EOP of detailed informatica subject to frequent change. Conversely, the Disaster Prepared-ness Plan contains no such information requiring periodic updating. Indeed, the version of the Disaster Preparedness Plan found in Annex A. Appendix 9 of LILCO Disc. Ex.10 is virtually indistinguishable from the version of the plan provided to LILCO in 1982-83.
F It was revealed for the first tirae at the hearing that a Mr. Donald Terrell, and not Mr. R. Jones, was the County's Plans and Training Officer during the 1982-83 time (Continued) l
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and in light of the uncontroverted documentary evidence which flatly contradicts their position, the County's suggestion now that it is "imoossible to determine" what the SCEOP contained in 1982-83 is indefensible should be rejected.
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B.
Severa11mportant Components of the SCEOP Were Not Produced in 1982-83 The County contends that "there is no dispute that at a minimum, the most im-portant portions of the County's EOP were produced to LILCO in 1982-83 discovery...." Intervenors' Supp. at 5.
This is not true. LILCO coes dispute that what it received in 1982-83 constitutes the "most important" components of the SCEOP as it existed both then and now.SI The County's attempt to define what parts of the SCEOP are or are not important for LILCO is plainly not valid, given the County's re-fusal throughout the course of the Shoreham proceeding to come to grips with the f ac-tual underpinnings of LILCO's "realism" case.
p (Continued From Previous Page) riod and that Mr. R. Jones did not assume that position until mid-1984 (Tr. 21370-71 h
. Jones)). Mr. Bilello testified that he was only "vaguely" familiar with the SCEOP, I
and that while he had seen the document before he was "not knowledgeable of the con-tents of it." (Tr. 21446 (Bilello)).
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Moreover, the County's claim that there is 'no allegation, much less evidence to suggest, that the County failed to produce any plan sought during discovery other than i
the EOP " Intervenors' Supplement at 3 n.3. is incorrect. The last-minute production on July 8,1988 of the Suffolk County Resource Manual, a document containing components dating back to 1980-81 and clearly responsive to LILCO's 1982-83 discovery requests, raises considerable question as to the County's diligence in searching for documents in 1982,1983, and 1988.
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_ The relationship between the contents of the SCEOP and what parts of it LILCO received in 1982-83 discovery is graphically represented in Attachment 5 of LILCO's Supplement. Key portions not produced in 1982-83 include (1) the "Basic Plan" prepared l
by the State;(2) Annex A. Appendix 2. Attachment D (lines of succession to command):
(3) Annex D (Communications and Warning System);(4) Annex !(Public Information Ser-vice); and (5) Annex K (Radiological Intelligence). While this list is by no means exclu-sive, these parts bear particular revelance to LILCO's realism case, and their
-nonproduction in 1982-83 has prejudiced LILCO's ability to prove definitively that case.
For instance, the "Basic Plan," prepared by the State of New York and bearing the date "5/79" (Bates No. K02245-65)E is significant because it establishes that the SCEOP is "fundamentally promulgated" under the authority of New York Executive Law Article 2-B, and that, as such, it includes "nuclear f acility accidents" within its defini-
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tion of disasters that the plan is designed to deal with. This is particularly important as it contradicts the County's position that the "Operations Plan is not for use in re-sponding to any nuclear power plant incide,nt." Egg Suffolk County Response to Licens-
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ing Board Discovery Inquiries (June 1,1988) at 2.
Annex A Appendix 2 Attachment D of the SCEOP (Bates No. K02296-329) con-sists of the of ficiallines of succession (including designated "emergency interim succes-sors") for 35 departments and subjurisdictions within Suffolk County.S/ ncluded are the I
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The references are to the Bates-numbered pages of LILCO Disc. Ex.10,
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It appears that the version of Annex A. Appendix 2. Attachment D found in
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LILCO Disc. Ex.10 has been updated as of 1985. It is indisputable that a version of this section of the SCEOP existed at least as early as 1982-83. One of the documents contained in County Disc. Ex.1 (designated on its cover page by Suffolk County Bates No. 000090) has within it a page that bears the notation "Emergency Operation Plan.
Annex A. App. 2. Att. D" (County Bates No. 000109) and which lists the then-existing line of Juccession for the Suffolk County Police Department.
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- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ office of the County Executive, Department of Fire, Rescue, and Emergency Services, the Division of Emerger.cy Preparedness, and the Department of Healtn Services, all key players in any County response to a Shoreham emergency.
Annex D of the SCEOP is the Communications and Warning System section of the plan. Annex D, which bears a date "7/83" on most of its pagM II is 54 pages long 1
and includes eleven separate appendices, including standard operating procedures, alerting lists, and inventories of the County's communications system and equipment.
The importance of this information to LILCO's realism case is readily apparent.II Annex I, the Public Information section, is short (four pages) but of particular i
importance. Specifically Annex ! indicates that (rlesources and requirements data and such materials as rosters, and emerge.tcy announcements are maintained on a l
current basis and facilities for ther transmission of broadcast material are maintained in a state of constant readiness at the EOC.
SCEOP, Anner I, Appendix 3 at 4. The Suffolk County Resource Manual (LILCO Disc.
Ex.13), not produced to LILCO until July 8,1988, contains the Nassau-Suffolk Counties
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Operational Area Emergency Broadcast System (EBS) Procedures (LILCO Disc. Ex. 31).
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One page (Bates No. K02647) bears a date of "7/82," suggesting that earlier ver-stons did exist.
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During the hearing, counsel for the County stated that in 1982-83 discovery "LILCO got communications plans, which are Annex D to the Suffolk County Emergen-cy Operations Plan." Tr. 21297 (Letsche). The County is mistakent as shown in part C below, the entries in LILCO's document indexes to a "communications section" are not references to any part of the SCEOP, but, rather, to a draf t version of the now-
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repudiated Suffolk County Radiological Emergency Response Plan, developed when the County was working cooperatively with LILCO in developing a Plan for Shoreham. In large part, this draf t communications section dealt prospectively with systems and pre-cedures which the County would have had to have developed prior to Shoreham being licensed to operate.
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- _ _ _ - _ _ _ _ _ In light of LILCO's reliance, under the "best efforts" principle, on WCBS in New York l
City as the primary originating relay station for the Shoreham EBS, the importance of Suffolk County officials having the information and means for contacting WCBS is self-evident. _See LILCO Supp. at 22-23.
The significance of Annex K (LILCO Disc. Ex. 25), the 160 page Radiological In-telligence section of the SCEOP, is similarly apparent, despite the County's attempt to dismiss it as a "1976 document which discusses a civil defense-type ap,oroach to a nu-clear attack" and of "little apparent usefulness." Intervenors' Supp. at 20 n.14. In f act, information found in Annex K establishes that, among other things, the County main-tains a large supply of personnel dosimeters. Such information is certainly relevant to the issue of the County's ability to respond to a Shoreham emergency and s'aggests that County officials and response personnel would not be completely ignorant of things ra-
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diological despite their refusal to plan in advance for Shoreham.EI In sum, crucial portions of the SCEOP were not provided to LILCO until May 1988, and the prejudice which LILCO has suffered because of that fact cannot be
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gainsaid.
C.
The Add!tional Documents Cited by the County Are Not Related to the SCEOP In a transparent effort to play down the harm to LILCO caused by its failure to
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produce the SCEOP in 1982-83, the County seizes upon certain entries in LILCO's l
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While the County testified that Annex K is due to be replaced, Mr. R. Jones stat-ed that "Annex K is simply going to be removed and most of the contents of Annex K will become Anncx B using some of the terminologies, lists of names of trained people l
and things like that that still exist." Tr. 21415 (R. Jones). Mr. R. Jones further j
testified that Annex K is currently a part of the SCEOP and has been "as far back as 1976.' Tr. 21414-415 (R. Jones).
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O 1 O document indexes and states that during the 1982-83 discovery period the County "pro-oueed additional documents that, from their titles and length, at least appear to have contents related to documents which by 1985 had become part of the EOP." Interve-
'O nors' Supp. at 17. The County then goes on to list nineteen documents which it believes may somehow relate to either the SCEOP or components of the SCEOP. Ld. at 17-18.
"It is thus clear and beyond dispute," the County therefore concludes, "that in 1982-83 O
the County produced not only documents which were, or eventually became, parts of the EOP, but also thousands of pages of other documents containing similiar planning information...." Id. at 19.
O As shown below, the County could not be more wrong in its characterization of the nineteen documents it has cited as containing material later incorporated into the SCEOP. The suggestion that the County's production in 1982-83 of these documents O
somehow excuses its failure to provide at that time the composite SCEOP, and miti-gates the harm suffered by LILCO due to its nonproduction, is baseless.
Of the nineteen documents listed in Inter /enors' Supplement at 17-18, almost
- O half are either related to early Q.e., pre-NUREG-0654) County efforts to plan for ra-diological accidents at the then yet-tcrbe completed Shoreham plant, or constitute a portion of the P.adiologien1 Emergency Response Plan developed during the period M
- O 1980-82 when the County was cooperating with LILCO in developing a plan for Shoreham that would satisfy the NRC's regulatory requirements.N 10/
I.e., the six page document entitled "Responsibilities of the Commissioner of the 0
Department of Health Services"; the five page document entitled "Responsibilities of the Commissioner of the Department of Health Services Alert A (Standby);" and the six documents entitled "Annex Procedures for Major Radiation Incidents at Shoreham Nu-clear Power Station."
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!.e., the M page document entitled "Communications Section of plan."
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.O l O The County's argument that these pre-1982, Shoreham-specific documents pro-vided LILCO with useful planning information, comparable if not identical to that ntalM in the SCEOP, cannot be taken serimsly in light of the Canty's aMolute re-
- O pudiation of all rsf its early planning efforts for Shoreham. LILCO could hardly have relied upon or cited the information in these early plans in building its realism case.
For instance, LILCO had no means of verifying whether the factual information contained within these old documents was still current or accurate. Only the SCEOP, the single, composite, official emergency plan represented by the County as being cur-rently in effect, would have provided LILCO with undeniable evidence of the County's O
emergency response capabilities.
Indeed, in its December 18,1987 "realism" summary disposition motion on Con-tentions 5 and 6, LILCO used information from the so-called "Voorhees Plan"M as a O
means of establishing such basic County emergency response resources as the Emergen-cy Operations Center in Yaphank. The County,in response, asserted that while "appar-ently included to support LILCO's assertion that 'the County already has emergen;y re-O sponse capabilities,"' r-atences to the Voorhees Plan "do no such thing" and that they were "totally irrelevant." S_ee Answer of Suffolk County, the State of New York and the Town of Southampton to LILCO's Motion for Summary Disposition of Contentiors 5 O
and 6 (February 10,1988) at 32-33. The County went on to state that the Voorhees Plan was a "nullity," and that (1]t should also be noted that whatever facts or assumptions O
M/
The Voorhees Plan refers to the draf t plan for Shoreham prepared by consultants to the County in 1982 af ter joint planning between LILCO and the County had been halted. The County judged it to be the "best possible plan for Suffolk County, but it a
was rejected by the County legislature, i'O l
l l
lO l
i t were included in that 1982 draf t document may or may not remain true or accurate in 1988. Thus, if LILCO's apparent assumptions about the location of County facilities and who would be in charge of emergencies are based upon the re-jected draf t plan, they are without basis.
I Id. at 33 n.11.
In light of the position taken by the County in response to LILCO's use of infc r-mation in the Voorhees Nan, the County's insinuat' now that LILCO could have ex-I tracted authoritative information (comparable to.nat found in the SCEOP) from the
.even older radiological planning materials that the Co9nty produced in 1982-83 is disin-genuous in the extreme. It represents yet another example of the County's willingness to color any fact or manipulate any argument in its effort to prevent the NRC from I
issuing a full power operating license for Shoreham. See LILCO Supp. at 8-11.
The balance of the documents cited by the County are either generally duplicative of (though not indentical to) the portions of the SCEOP which were pro-duced in 1982-83,N or are a random assortment of miscellaneous, outdated planning materials which, in their fragmented state, present no insight into the County's overall
)
ability to respond to a large-scale emergency.N The County's production in 1982-83 of 13/
I.e., the seven page document entitled "Town of Brookhaven Emergency Pre-paredness Preliminary Fire Island Evacuation Plan"; the 10 page memo regarding "Emergency Operating Center Staffing Pattern"; the 62-page document entitled "Hurri-cane Mitigation Plan for the South Shore of Long Island Planning Board"; and the 11-page document entitled "Fire Island Emergency Operations Plan."
14/
I.e., the one page document entitled "Weekend and Holidays Call System -
Health Services Department - Document Produced Emergency Telephone Numbers";
)
the two page dccument entitled "Emergency Action Plan When Public Water Supply i
Falls"; the 24 page document entitied "Emergency Medical Services Disaster Plan for Suffolk C;unty"; the 12 page document entitled "Suggested Equipment for Response to Hazardous Materials Incidents by the Emergency Services Section, Revised January 1982"; the memo with "Emergency Operations Plan for Suffolk County Department of l
l Parks" totalling 18 pages; and the document entitled "Town of Islip Emergency Pre-l i
paredness Disaster Procedures and Resources Manual."
)
4 these materials, as well as of the various other documents cited in Attachment 1 of In-tervences' Supplement, by no means compensates for its f ailure to provide the SCEOP.
The County uses its references to these documents as chaff, in an attempt to turn the i
focus of this proceeding to what the County did provide to LILCO in 1982-83, rather I
than what it did not.
C.
LILCO First Became Aware of the Composite SCEOP in May,1988 Finally, in an attempt to excuse its own failure to comply with the discovery process, the County maintains that not only was LILCO aware, prior to May 1988, of the existence of the composite SCEOP but that it, in fact, already had a copy of that document, perhaps as early as 1985. Because of this, the County concludes, "there is no basis to find that LILCO was prejudiced even assuming arguendo some inadvertent
)
nonproduction of portions of the EOP in 1982-83." Intervenors' Supp. at 26.
The County's conclusion is predicated essentially on four factual arguments:
(1)
In 1980-81, when LILCO and the County were cooperating in tha Shoreham planning effort, LILCO's emergency planners
)
had access to and used portions of the SCEOP while devel-uping a plan for Shoreham; (2)
Certain of the documents produced to LILCO in 1982-83 bear the notation "Emergency Operations Plan," and LILCO's document indexes reflect that fact; (3)
Norman Kelly, a LILCO employee, was asked by his superiors to obtain a copy of the SCEOP and, in f act, did so obtain a copy of the plan (identical to LILCO Disc. Ex. 9) from the County's Emergency Preparedness Division in 1985 or early 1986; and
)
(4)
LILCO representatives have since the early 1980's attended annual "hurricant Jonferences" conducted by the County, at which discussions have occurred pertaining to the use of the SCEOP in responding to hurricanes.
i l
)
)
- )
Intervenors' Supp. at 20-25.
The County's poGition appears to be that any failure on its own part to produce the composite SCEOP prior to May 1988 is cured by LILCO's own alleged prior knowl-h edge and possession of that document. Even apart from the simple fact that whatever LILCO may or may not have learned or obtained outside the discovery process is irrele-vant to wheth'ar the County complied with its discovery obligations, the County's posi-
)
tion sufic' from three serious shortcomings.
i First, the L'ounty's characterization of LILCO's alleged prior knowledge and pos-l l
session of the composite SCEOP is, in a number of important respects, f actually inaccu-rate. Second, the County's assertion that LILCO knew about the SCEOP as early as 1980-81 is logically incompatible with the County's position that the SCEOP did not 3
exist in its composite form until well af ter that time. Third,in arguing that LILCO had
)
been "put on notice" of the existence of the SCEOP in 1982-83, the County attempts to assign to LILCO the responsibility for ensuring the County's compliance with discovery.
In the f ace of concurrant protestations by the County that it should be given the bene-
)
fit of the doubt that it couped with its 1982-83 discovery obligations in good 'eth and using due diligence, this latter argument is particularly difficult to credit.
(1)
Factual Inaccurseles
)
The most egregious of the County's mischaracterizatiens of the record is its as-sertion that Norman Kelly "did in fact obtain for LERO a copy of the County's EOP,"
and that the "copy he obtained was likely identical to the version which the County
)
produced to LILCO in May 1988, which is LILCO Discovery Exhibit 9."
Intervenors' Supp. at 23-24. As shown in LILCO Supp. at 30-33, the clear weight of the evidence re-futes the County's claim.N It is unnecessary to recite that evidence once again.
)
I LS/
The County's assertion that it is "unrebutted evidence" that in 1985 or 1986, a "high LERO official, likely Mr. Daverio or Mr. Renz, asked Mr. Kelly to obtain a copy of (Continued)
)
) )
Suffice to say, contrary to the County's statement that "it is undisputed that LILCO asked for a copy of the County EOP in 1985 or early 1986, and that it actually has had a copy for at least two and one-half years," Intervenors' Supp. at 24, LILCO vigorously disputes the County's version of the "facts."
The County's characterization of Mr. Davidoff's 'etimony regarding the 1980-81 joint County /LILCO Shoreham planning effort is similarly one-sided and inaccurate.
)
Drawing on Mr. Davidoff's recollectionG from that timr, the County states that "(als a result of the 1980-81 County /LILCO planning etforts, LILCO's emergency planners knew of the County's EOP as it existed at that.ime." Id. at 21. In fact, Mr. Davidoff
)
testified that while he remembers that LILCO's planners had access to the County's "then extant all hazards materials," he could not recall the name of that "all hazard plan," did not know the scope of the planning materials in LILCO's possession, and had
)
"no basis for comparison" to determine whether the materials available to LILCO in 1980-81 were the same as, larger, or smaller than the SCEOP as it exists today (LILCO Disc. Ex.10). Tr. 22004-05 (Davidoff). Thus, even cn its own terms, Mr. Davidoff's tes-3 dnony does not impute any knowledge to LILCO of a Suffolk County Emergency Op-erations Plan or its predecessor, since Mr. Davidoff himself did not recall what source materi21r were being used in the 1980-81 period.W b
(Continued From Prevlcus Page) the County's EOP," In'orvenors' Supp. at 23, mischaracterizes the evidence. la f act, Mr. Kelly testified tl at while it is "possible" that it was either Mr. Daverio or Mr. Renz who asked him to get tne County's emergency plan, (Tr. 21569) (Kelly)), he simply does not recall who made the request. Moreover, the County has utterly failed to confront the evidence presented by the Affidavit of John A. Weismantle (July 21,1988), which establishes that the SCEOP was not in LILCO's possession prior to May 1988. See LILCG Supp. at 32.
16/
None of Suffolk County's or New York State's pleadings prior to Mr. Davidoff's O
July 19 appearance gave any notice that the County would attempt to clicit testimony (Continued)
O
) LILCO likely would have been made aware Finally, the County's suggestion that "EOP through its att
] confer-O e Cer-of the existence of the County'sot supported by the weight of the evidenc.
i presenta-ences, Intervenors' Supp. at 25, s nes" have taken place for years an hat while tainly, such "hurricane conferenc County's own witnesses testified, howev O
detail) tives have attended. Two of the opposed to being specifically discussed in any
(
f the the SCEOP has been referred to as have been generally limited to the use o Tr.
at these conferences, the conversations d not for any other types of disast O
plan in response to hurricanes per s_e, an Moreover, the County has f ailed to es-4 (Regan).
famil-21890-91, 21893-9 21454-55 (Bilello),
dees at these conferences were invo e in tablish that any of the LILCO attenham emergency planning) and, hence, wer ht have lar with the Shoreham litigation (or Shoree of an/ passing references w O
a position to appreciate the significanchensive, integrated County em lan.
been made to the existence of a compre O
LogicalInconsistency ument - its suggestion that LILCO had (2)
A significant portion of the County's argf the SCEOP prio f om a i s by teen "put on notice" of the existence ogument difficult to follow. T breakdown in logic which makes the ar g
diated CEOP to LILCO on the basis of the repu (Continued From Previous Page) he making rebuttal of Mr. Davidof f's claim from him imputing knowledge of the SHowever g
ti cooperative planning process, 1980-81 ll ctions of tha See Depositions of Robert Meunkle (Augus hearing dif ficult.ners in 1982 in connection with this procee Mr. Meunkle and Ms. Palmer, in their reco e LILCO's do not indicate that either the Co i ting mony on this point.16, 1982).
Palmer (August joint County /LILCO planning ef fort, emergency planners directly incorporatel gical plan then b O
generic emergency plan into the radio o O
~ - _ _
O l O
Finally, the County's suggestion that "LILCO likely would have been made aware of the existent,s of the County's EOP through its attendance at (hurricane] confer-ences," Intervenors' Supp. at 25, is not supported by the weight of the evidence. Cer-O tainly, such "hurricane conferences" have taken place for years and LILCO representa-tives have attended. Two of the County's own witnesses testified, however, that while the SCEOP has been referred to (as opposed to being specifically discussed in any detail)
O at these conferences, the conversations have been generally limited to the use of the plan in response to hurricanes per se, and not for any other types of disasters.
Tr.
21454-55 (Bilello), 21890-91, 21893-94 (Regan). Moreover, the County has failed to es-O tablish that any of the LILCO attendees at these conferences were involved in or famil-lar with the Shoreham litigation (or Shoreham emergency planning) and, hence, were in a position to appreciate the significance of any passing references which might have O
been made to the existence of a comprehensive, integrated County emergency plan.
(2)
Lorical Inconsistency A significant portion of the County's argument - its suggestion that LILCO had
.O been "put on notice" of the existence of the SCEOP prior to May 1988 - suffers from a breakdown in logic which makes the argument difficult to follow. The County begins by O
(Continued From Previous Page) from him imputing knowledge of the SCEOP to LILCO on the basis of the repudiated 1980-81 cooperative planning process, making rebuttal of Mr. Davidoff's claims at the hearing difficult.
However, depositions taken of two Suffolk County emergency plan-ners in 1982 in connection with this proceeding do not corroborate Mr. Davidoff's testi-
.O many on this point. See Depositions of Robert Meunkle (August 6,1982) and Laura palmer (August 16, 1982). Mr. Meunkle and Ms. Palmer, in their recollections of the joint County /LILCO planning effort, do not indicate that either the County's or LILCO's emergency planners directly incorporated any portions of the County's then-existing generic emergency plan into the radiological plan then being developed.
O O
) )
asserting that "it was not until the mid-1980s that the EOP grew to tr.e size of LILCO's Discovery Exhibits 9 and 10." Intervenors' Supp. at 9. In the next breath, however, the County makes note of evidence which allegedly shows that both LILCO and its counsel knew or should have known of the SCEOP at least as early as 1982-83.
The evidence is overwhelming that the composite SCEOP existed at the time LILCO first propounded its discovery requests in the Shoreham emergency planning proceeding. Nevertheless, the County disputes that claim. The County, however, can-not argue that information which LILCO may have obtained regarding the County's l
l emergency planning efforts in the 1980-83 time period imputes to LILCO knowledge of a large, integrated emergency plan, a plan which the County denies to have existed during that time. The County cannot have it both ways.
(3)
Attempt to Shif t Responsibility
)
As a slight twist on its argument that LILCO had prior notice of the existence of the SCEOP, the County notes that the materials Suffolk County produced to LILCO in 1982/83 dis-covery included several documents which had typed right on
)
their face an indication that they were, or would in the fu-ture become, a part of the County's EOP.
Intervenors' Supp. at 21. Elsewhere, the County states that LILCO's own indices of the documents produced by the
}
County in the 1982/83 discovery confirm LILCO's knowledge of the existence of the 2OP.... Clearly, LILCO's own words in 1982 and 1983 reveal its knowledge of the existence of the County EOP.
Ld. at 22-23. The County's insinuation, if nct its expressed position, is that LILCO is at least partly responsible for its f ailure to receive the entire SCEOP in 1982-83. It is the County's apparent view that LILCO should have somehow "followed up" once it received documents suggesting the existence of a larger, integrated emergency plan.
)
J
) )
As the County has pointed out, LILCO was sent over 7000 pages of documents, of lengths varying from one page to several hundred pages, in 1982 and 1983. Id. at 15.
These assorted documents, which were sent by the County to LILCO in multiple ship-
)
ments over the course of 1982-83, appeared to bear no particular relationship to each other when they were received in large cardboard packing boxes. Indeed, the County's own Bates stamp numbers do not reveal any logical pattern or sequence between even
)
the various parts of the SCEOP which were provided in 1982-83. Seg, gg., LILCO Supp., Attachment 5.
LILCO's two indices to the documents produced in 1982-83 contain approxi-mately 1100 separate entries. Of these some 1100 different documents, five contained j
notations indicating that they were part of an "Emergency Operations Plan." However, some of the documents now known to have long been a part of the SCEOP, such as the Emergency Services Directory (Tr. 21416 (R. Jones)), and the Disaster Preparedness Plan, were not marked in any fashion that would have suggested their inclusion in a larger whole.
)
In sum, LILCO's ability to have deduced the existence of the SCEOP from the isolated, seemingly unrelated documentary fragments provided to it in'1982-83 is highly questionable. Only in the hindsight provided by the initial emergence of the SCEOP in
)
1988 could the significance of those fragments have become fully known to LILCO.
In retrospect, LILCO's mistake during the 1982 and 1983 discovery periods was not a failure on its part to understand or appreciate wnat it had been provided. Rather, LILCO's error was its reliance on the County's good faith and due diligence to provide
)
all of the documents which LILCO nad requested, and which the Board had ordered to be produced, i
t i
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IU.
NEW YORK STATE HAS OBSTRUCTED DISCOVERY BY NUMEROUS MEANS.
The intervenors' Supp discusses the State's performance in discovery at pages 27-34. It is limited almost exclusively to the nonproduction of the SCEOP. Seg,e&,
Intervenors' Supp. at 28 n.18. Intervenors did this despite the State's counsel's.recogni-tPn that "the issue would be whether the discovery requirements have been complied with in this proceeding." Teleconference of June 17,1988, Tr. 20879 (Zahnleuter) (ac-
)
knowledging Judge Gleason's statement at Tr. 20875). The Intervenors thus ignored the State's discovery obstructions set forth in LILCO Supp. at 33-50 & Attachment 4. Thus, the State's attempt to confine the relevant issue to the State's role in the i
nonproduction of the SCEOP is the central flaw in its argument. This issue was dis-cussed in Part I of this reply brief, and will not be repeated here.
It is of telling importance that the State's obstructions of discovery were wide-
)
ranging, pervasive, and carefully orchestrated. It is also telling that the conduct which
.f prec'pitated the Board's determination on June 10 to dismiss the retlism contentions was the State's and the County's refusal to produce knowledgeable deponents, whom the
)
Board had repeatedly ordered produced. The recent hearings revealed, indirectly but unmistakably, that the State has a wealth of knowledgeable personnel for both ra-s diological and nonradiological planning and response, who know perfectly well how to
)
interface with a utility and specifically with Suffolk County in an emergency.
It would serve little purpose to repeat the summary of the State's discovery ob-structions set forth in LILCO's Supp. LILCO's June 15 Brief and Supplement of July 26 detail both general and specific discovery abuses by the State, including obstruction of
)
depositions; failure to comply with Board discovery orders; unfounded objections and i
evasive answers to interrogatories; nonproduction of responsive documents; late
)
)
) '
production or authentication of responsive documents; and obfuscating or misleading statements in discovery depositions, in interrogatory objections and responses, and in the REPG Affidavit, that were designed to conceal or mischaracterize State resources
)
t and response capabilities. Among these, it is significant that the State undoubtedly 1
knew of the existence and basic contents of the SCEOP for many years, but denied or l
deflected revealing that knowledge throughout discovery. See LIICO Supp. at 33-38 &
h at 1-2. _Se_e also Intervenors' Supp. at 33 n.26 (conceding that "the State l
appears to have reviewed an earlier version of the EOP in 1981 (See LILCO Disc. Ex.
15)"...).
The close historical connection between SEMO and County emergency plan-2[
ners, and the role of SEMO in plans and responses for both radiological and nonradiological emergencies (including nuclear power plant emergencies), shows that a coordinate 6 governmental response to a Shoreham emergency is quite feasible, and the
)
State deflected LILCO's inquiries in that direction in discovery.
Four items in the Intervenors' Supp., however, do merit brief comment:
1.
Intervenors concede that: "In 1988, LILCO's Secor.d Set of Interrogatories
)
and Document Request, dated March 24, 1988, did seek that Plan (the SC30P] from New York State." Intervenors' Supp. at 27. The Intervenors then state that the Cour.ty had produced the SCEOP to LILCO before the State discovered a copy of the SCEOP in
)
its files, assertedly on June 6,1988. This overlooks the f acts that (a) the interrogato-ries also requested identification of responsive documents, LILCO Disc. Ex. 29,N and the State undoubted'.y knew of the existerice of the SCEOP much earlier than June 6, 1988, s_e_e LILCO Supp. at 33-38; (b) the State's initial response to the pertinent
)
17/
See, eA, interrogatory nos. 50 and 120.
)
. interrogatories and document requests (indeed virtually all interrogatories and docu-ment requests) was a blanket relevance objection and f ailure to respond or produce -
an objection not taken in good faith in light of Board orders in 1982, (Prehearing Con-ference Order (Phase I - Emergency Planning) (July 27, 1982)) and 1984 (Order Granting LILCO's Motion to Compel Expedited Production of the New York State Emer-gency Preparedness Plan (February 28,1984)) (the last one directed specifically to the State), ruling that plans for nonradiological emergencies are relevant; and (c) even in l
its June 3,1988, responses to LILCO's Second Set of Interrogatories and Requests for l
i Production, the State repeatedly deflected all questions as to county planning, asserting k
in essence that counties, not the State, have knowledge of county plans, LILCO Disc.
Ex. 8 (admitted Tr. 21696-697).
2.
Intervenors are simply incorrect in asserting that:
)
Beyond tne County's EOP, all New York State documents responsive to LILCO's Second Set of Interrogatories and Document Requests have been provided to LILCO in a timely manner in accordance with the Board's or-ders.
Intervenors' Supp. at 28.
The State's obstructions of discovery are summarized in
)
LILCO's Supp. at 33-50 and Attachment 4 thereto, and the State's procedural obstruc-tions and untimelv responses are detailed at pages 43-48 of the LILCO Supp.. Further, the Intervenors' statement is revealing because it ties timeliness to Board orders. It is
)
an indisputable f act that the State assumed that it had to be ordered by the Board to re-spond substantively to discovery before it would do so. This assumption, however, is simply inconsistent with the NRC's discovery rules which, like the discovery rules in the fcderal courts, are premised on voluntary compliance and should require minimal judicial intervention. The State, for example, failed to produce or authenticate even
)
I
O O the core State radiological plan, the NYS REPP, either in document discovery or in dep-ositions (including those of Dr. Axelrod and tha REPG Panel), until the State was spe-cifically ordered to do so on June 29,1988.N The State's attitude is further revealed by the statement on page 32 of the Intervenors' Supp., that the State's "document search targeted a completion date of thirty days from May 10, 1988," 1 &, the date of the Board's order at the prehearing conference, when LILCO's requests were served on O
March 24.
3.
Intervenor' complain that "LILCO spent extensive time examining Dr. Axelrod and Mr. Davidoff" on "irrelevant" matters during the hearings. Intervenors Supp. at 28 n.18. The matters as to which LILCO inquired, however, were fundamen-tally necessary to reveal fully both the fact of, and the basis for, the State's pattern of discovery otstructions. Those matters, and their importance to understanding the
.O State's discovery abuses, are explained in LILCO's Supp at 8-11, 38-41, 42, and 48-50.
The signal feature of the State's position in discovery, predicated on the evolution of the State's position since 1982, was its obfuscation of State resources for emergency O
planning and responses, both radiological and nonradiological. The State's approach to l
discovery was too systematic, carafully conceived, and interlocking to have been 0
1_g/
To the extent that Intervenors' Supp. at 31 n.22 implies or suggests that LILCO did not reque.st a copy or authentication of the current verion of the NYS REPP be-cause LILCO already had that plan, it is incorrect. LILCO repeatedly sought a copy or authentication of the 1987 version of the generic part of the NYS REPP, LILCO Disc.
Ex. 6 (admitted Tr. 21733), in its Interrogatories, in document requests in connection with depositons, in the depositons themselver, and by pointed letters to the State's c unsel in connection with discovery.
The "components" of the NYS REPP which
'O LILCO's counsel in the school bus driver remand, Ms. Leugers, said she already pos-sessed, were the four county plans appended to the NYS REPP, other than the plans for Orange, Putnam and Rockland Counties.
I i
10 10 1
O O anything other than purposeful. This demonstrates that severe sanctions are war-ranted, and explains why the State wishes to dismiss these matters as "irrelevant."
4.
Intervenors contend that the SEMO guidance document, prepared primari-O ly by Mr. Germano, LILCO Disc. Ex. 5 (admitted Tr. 21031), which was not produced in discovery, was not responsive to LILCO's discovery requests. The well-orchestrated di-rect examination of Mr. Germano by the State's counsel on that point, and cited in the O
Intervenors' Supp. at 28 n.18, simply is not credible. Mr. Germano's explanations were fatally irreconcilable with the text of the document itself, including its Attachment 1, el, Tr. 21730-31, 21776-780 (Germano)k Dr. Axelrod recognized the generic O
1_2/
On direct examination Mr. Germano testified that LILCO Disc. Ex. 5 was intend-ed only as guidance for the 13 counties near the Ginna site. Tr. 21730-731 (Germano) and is not a plan or procedure that New York State has and would use, follow, or other-wise rely upon to make an ingestion pathway and recovery and reentry response to a ra-
.O diological emergency at Yankee Rowe, Millstone, Haddam Neck, Vermont Yankee, or the Oyster Creek nuclear power plants. Tr. 21733 (Germano). On cross examination, however, Mr. Germano testified that Attachment 1 of the document is contained in Procedure K of the NYS REPP, Tr. 21777 (Germano), which is the generic State inges-tion pathway procedure for all plants in or within 50 miles of New York State. He could not deny that the document on its f ace was a "procedure" applicable to all plants O
depicted on Attachment 1 of LILCO Disc. Ex. 5, Tr. 21776-277 (Germano), including Yankee Rowe, Millstone, Haddam Neck, Vermont Yankee, and Oyster Creek.
The Germano document states "The material and operational data contained within this document reflect the current policies and criteria associated with the ra-diological ingestion exposuro pathway from the oporating nuclear power plants located O
within, as well as bordering the State. Attachment 1 depicts operating nuclear power plants for which this procedure has been developed." LILCO Disc. Ex. 5, guidance memorandum at 2. graphically depicts eight operating nuclear power plants: Ginna, Nine Mile, Vermont Yankee, Yankee Rowe, Indian Point, Haddam, Mill-stone, and Oyster Creek.
Though Mr. Germano contended that the SEMO guidance document was not a O
plan or procedure, Tr. 21730-731, the document is a self-described "procedure," LILCO Disc. Ex. 5, guidance memo at 2, states that "This document can become an appendix to the County all hazard Comprehensive Emergency Operations Plan," Disc. Ex. 5, guld-ance memorandum at 1. Indeed, Mr. Germano testified that "The direct quote is really indicating that whatever the county prepared, it's their responsibility that their docu-ment in turn should become an annex to the overall county emergency operations plan."
~W Tr. 21775 (Germano).
'O
O O of the document and its responsiveness to at least one LILCO interrogatory, Tr. 21682, 21686-691 (Avelrod); Mr. Papile said that the document could be applied to any county in the State, Tr. 21028 (Papile); and the document was plainly responsive to several O
LILCO interrogatories. These points are set forth, with record references, in the LILCO Supp at 47 and in Attachment 4 thereto, pp. 2-5.
Thus, the recent hearings illuminated a pattern of unwarranted discovery ob-struction by the State, going well beyond its flat refusal to produce deponents on the i
merits in response to Board orders. This conduct fully justifies the sanctions LILCO has requested.
O IV.
OBSERVATIONS ON "FURTHER NRC STAFF COMMENTS."
LILCO has reviewed the "Further NRC Staff Comments on Imposition of Sanc-tions" (hereinaf ter "Staff Comments") and agrees with the Staff's conclusion that the record of this immediate proceeding shows that the State and County engaged in foot-l dragging and unwarranted denials in discovery, supporting dismissal of the realism con-l l
tentions as a sanction.
lO Two matters need comment, however. First, the Staff is incorrect in its asser-tion (Staff. Comment.s at 3,13) that the testimony of Mr. Davidoff establishes that l
LILCO probably had access to the SCEOP or its then predecessor in the 1980-81 coop-O erative period. Mr. Davidoff, when pinr4ed down on cross-examination, cculd not iden-tify or remember the materials to which LILCO had access in the collaborative period.
Tr. 22004-05 (Davidoff). Moreover, even if, as the Staff suggests, LILCO had had access IO, -
to the "basic" Suffolk County disaster plan during that period, that 50 page plan (LILCO Disc. Ex. 10, Annex. A. Appendix 9) is not the one which contained multiple O.
1
- O
O O informative appendices and hundreds of pages in length. It is the full SCEOP, with its spreao of information, that opens doors and minds; and Mr. Davidoff's testimony does not show, even at f ace value, that LILCO had access to the full SCEOP in 1980-81.
O Second and more basically, the Staff's inability to discern the State's or County's motive or intention may reflect the Staff's lack of full substantive participation in dis-covery and discovery disputes of the pt...iix years, in which the protagonists have been O
LILCO on one side and the State and County on the other, but not the Staff. The Staff has not been an active participant in discovery.
For instance, in 54 instances of motions to compel discovery or other discovery-O related matters that needed to be brought to the Board, the Staff has filed a response on only 23 of them. In many of these instances, the Staff filed a paper stating that the Staff took no position since the matter involved a discovery dispute between LILCO and O
Intervenors. And the Staff has been physically present at less the.n one quarter of the 203 depositions which have been conducted in the emergency planning proceeding since 1982 (the Staff has been present at 46 and absent at 157). At the unes in which it has O
been present it has asked questions at only 18. Those questions consume 67 pages of the total of 24,464 pages of the depositions.
In short, the Staff's comme.nts come tgainst a background of only intermittent
'O involvement in these dfscovery matters, and the Staff's inability to discern intent or motive may well follow from that lack of involvement. To that extent, LILCO believes the Staff's comments need to be discounted on the issue of intent or motive that is rele-Vantt dlSmiSSal f Parties as a sanction.
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i i V.
SUMMARY
AND CONCLUSION When all Is said and done about the content of discovery in the emergency plan-ning proceeding for Shoreham, the following things cannot be gainsaid:
1.
Suffolk Co nty and New York State each have substantial emergenc;'
planning and response organizations operating in nonradiological as well as radiological l
areas pursuant to comprehensive planning documents as well as facility-specific docu-
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ments. In particular, the general capabilities of the ncnradiological organizations (at the State level, SEMO; at the county level, the DEP) and their documents are of special relevance to the ability to demonstrate the realism principle's application in circum-stances where the utility provides the radiological plan and plant-specific information.
The roles of SEMO and the Suffolk County DEP, and of their documents, were matters both the State and County obfuscated by their insistence on focusing on site-specific
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radiological planning, their claims that they had no such plan for Shoreham, and their obdurate refusal to recognize either the existence or the contents of the LILCO Flan.
2.
The Suffolk County Emergency Operations Plan is merely the most con-
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spicuous document among the many raised in connection with the immediate ir.quiry.
Even as to that document, the following matters seem clear:
a.
The SCEOP provides a wealth of organized information about
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Suffolk County emergency planning and response capabilities, b.
Suffolk County's initial argument that matters are too confused to demonstrate anything about the existence or production of the SCEOP in 1982-83 is in-
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correct. There is strong evidence that a unitary physical document - whether it is de-scribed as "integrated," "composite," or otherwise - known as the Suffolk County Emergency Operations Plan existed as of 1982 or 1983.
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. c.
There is some (but not conclusive) evidence that County officials intended to produce the SCEOP to their attorneys for transmittal to LILCO in 1982 and 1983. There is, however, n_o evidence that it was ever actually produced by the Coun-ty's attorneys to LILCO either time, and there is strong documentary evidence (LILCO's document indexes) that it was not produced either time.
d.
Suffolk County's arguments about the SCEOP are not truly in the
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alternative: they are mutually inconsistent. Intervenors argue that LILCO emergency planners had access to the SCEOP in 1980-81 (which presumes it existed), though the testimony of Mr. Davidoff (the only witness to raise the issue, and the last witness at f
the hearings) was inconclusive, Tr. 22004-05 (Davidoff). The County says next that it turned over the entire SCEOP in discovery in 1982 and 1983 (wbich also presumes that it existed), though this is contradicted by LILCO's document indexes. Then the County f
alleges that the SCEOP didn't really exist in 1992-83 as a unitary document (which is
~
t l
belled by the documentary evidence from tables of contents and document-l l
identification labels on the fragments actually prtxkiced, and by the testimony of Coun-ty witnesses, g, Tr. 21412-415 (II. Jones), 21901-903, 29104 (Regan) and if this were l
true, it would excuse LILCO from alleged knowleJge of it at the time). Intervenors then argue that LILCO's emergency planners again obtained access to (or at least
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"knowledge" of) the SCEOP in 1985-86, or episodically through hurricane briefings,
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without ever attempting to explain how or why LILCO, which had the most powerful incentive imaginable to prove the realism argument, failed to ever make use of the
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SCEOP for that purpose.
What one is leit with is the question whether LILCO, having received three frag-ments of the SCEOP in 1982 and another half-dozen in 1983, should have been t
I l
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sufficiently alert to have deduced that they represented pieces of a larger document, and should have somehow divined the content of the larger document, v hen no such document had ever appeared despite repeated requests and orders and when the con-
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cept of planning adaptable to Shoreham was met universally by County and State deni-als that there were any such plans. Under these circumstances the answer is that no entity possessing only these fragments could reasonably have divined the existence of the SCEOP, complete with annexes and appendices, departmental assignments and responsibilities, directories, procedures and lists.
Finally, Suffolk County's repeated attempts to engraf t on LILCO independent
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knowledge of the SCEOP (n, hurricane conferences, cooperative planning with the State, forays by Mr. Kelly, etc.) overlook a fundamental principle: documents produced in the regular course of discovery carry with them the producer's representation that
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they are nuthentic and complete. LILCO is entitled to that representation. While L'LCO's independent knowledge - if it had any - could be relevant to the issue of prej-l udice to LILCO, it is wholly irrelevant to the basic subject matter of this proceeding:
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integrity of the discovery process.
' / / ',
- 1.,
?
O 'O The bottom line is that the County and State did obstruct the course of discovery by various means throughout the course of this proceeding, s_ee LILCO Supp. at 11-50 &,4, in order to cling to their asserted veto power on the merits of the is-
'O sues, see id. at 8-11. Their discovery tactics substantially delayed and deflected the course of this proceeding. LILCO therefore urges the Board to dismiss the Intervenors from this entire proceeding, to find Intervenors in def ault and rule in LILCO's f avor on O
the realism contentions, and to dismiss the realism contentions as a sanction.
Respec ly submitted, O
[1
'Donal6F Irwin Joseph M. Spivey, III K. Dennis Sisk
.O David S. Harlow Counsel for Long Island Company Hunton & V3111ams 707 East Main Street O
P.O. 30x 1535 Richmond, Virginia 23212 DATED: August 1,1988 O
O O
O
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DGlHETED fling LILCO, August 1,1988 l
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'88 g -3 p3 4g 0FTl2.
00Chti q ; f h'7
- s -
BR A h t.y ' "
CERTIFICATE OF SERVICE l
\\
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In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) j Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S BRIEF ON DISCOVERY SANCTIONS were served this date upon the following by hand as indicated by one asterisk, by Federal Ex-l press 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
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Dr. Jerry R. Kline
- Atomic Safety and Licensing Richard G. Bcchmann, Esq. **
Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission One White Flint North Ecst-West Towers, Rm. 42't 11555 Rockville Pike 4350 East-West Hwy.
Rockville, MD 20852
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Bethesda, MD 20314 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 Flcor
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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. Zahaleuter, Esq.
Attention Docketing and Service Special Counsel to the Governor Section Executive Chamber
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U.S. Nuclear Regulatory Commission Room 229 1717 H Street, N.W.
State Capitol Washington, D.C. 20555 Albany, New York 12224 Atomic Safety and Licensing Alf red L. Nardelli, Esq.
Appeal Board Panel Assistant Attorney General
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U.S. Nuclear Regulatory Commission 120 Broadway Washington, D.C. 20555 Room 3-118 New York, New York 10271
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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ George W. Watson, Esq. **
William R. Cumming, Esq.
Ms. Nora Bredes Federal Emergency Management Executive Coordinator Agency Shoreham Opponents' Coalition 500 C Street, S.W., Room 840 195 East Main Street l
Washington, D.C. 20472 Smithtown, New York 11787 Mr. Jay Dunkleberger Evan A. Davis, Esq.
New York State Energy Office Counsel to the Governor Agency Building 2 Executive Chamber Empire State Plaza State Capitol Albany, New York 12223 Albany, New York 12224 Stephen B. Latham, Esq. **
E. Thomas Boyle, Esq.
Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street Building 158 North County Complex P.O. Box 298 Veterans Memorial H.lghway Riverhead, New York 11901 Hauppauge, New York 11788 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 New York, New York 10278 Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Counsei Three Rockefeller Plaza Albany, New York 12223 K. Denbis Sisk h
Hunton & Williams i
707 East Main Street P.O. Box 1535 l
Richmond, Virginia 23212 DATED: August 1,1988 f
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