ML20151X081
| ML20151X081 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/27/1988 |
| From: | Latham S, Mark Miller, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20151X085 | List: |
| References | |
| CON-#288-6176 OL-3, NUDOCS 8805040051 | |
| Download: ML20151X081 (55) | |
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COLKETED UWC April 27, 1988
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'8B APR 29 N1:32 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFIC' 08 S E Ua. r M <
00CKdmu 4 SEnvlLL j Before the Atomic Safety and Licensino Board BR t.NLH
)
In the Matter of )
)
LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station, )
Unit 1) )
)
GOVERNMENTS' RESPONSE TO LILCO'S MOTION TO STRIKE PORTIONS OF SUFFOLK COUNTY'S TESTIMONY RELATING TO LILCO'S SCHOOLS EVACUATION PROPOSAL I. Introduction and General Resoonse On April 13, 1988, Suffolk County submitted direct testimony, sponsored by representatives of school districts within and near the Shoreham 10-mile EPZ, regarding the issues raised by the Appeal Board's remand of Contention 25.C, including LILCO's new proposal for the evacuation of schoolchildren during a Shoreham emergency.1/ On April 20, 1988, LILCO moved to strike substantial portions of the County's Testimony.2/ The principal 1/ Egg Direct Testimony of Bruce G. Brodsky, Edward J. Doherty, Howard M. Koenig, Nick F. Muto, Robert W. Petrilak, Anthony R.
Rossi, J. Thomas Smith, and Richard N. Suptina on Behalf of Suffolk County Regarding Contention 25.C, dated April 13, 1988 (hereafter, the "County's Testimony").
2/ Egg LILCO's Motion to Strike Testimony of Brodsky, et al.,
dated April 20, 1988 (hereafter, "LILCO's Motion").
8805040051 000427 h I PDR ADOCK 05000322 o PDR
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arguments advanced by LILCO in its Motion are thatt (1) the County is impermissibly attempting to broaden the scope of the remanded Contention 25.C proceeding; (2) the County's witnesses are not competent to sponsor portions of the County's Testimony; and (3) the County's Testimo'.iy presents a challenge to NRC regulations, and as such must be stricken. LILCO's Motion at 1-
- 2. Due to the "extent" of the allegedly improper testimony, LILCO also requests that the Board require the County to resubmit its testimony, "leaving out those portions that are objectionable and impermissible." Id. at 1. For the reasons set forth and discussed in some detail below, LILCO's Motion, with one exception, should be denied in its entirety.2/
In moving to strike the County's Testimony, LILCO congratulates itself for its ability to "skillfully diagnosis" (sic) the "offending portions" of the testimony. LILCO's Motion at 2. Far from reflecting a skillful diagnosis, however, LILCO's Motion really amounts to little more than an artful contrivance, designed not to excise testimony offensive to the NRC regulations and prior Board decisions, but rather to eliminate important and 1/ The one exception relates to LILCO's complaint regarding the County witnesses' testimony concerning the Plan's provisions for sheltering schoolchildren in the event of a Shoreham emergency.
Egg LILCO s Motion at 4-6. Although the Governments continue to believe that sheltering is not a viable or workable option which the schools would be able to implement,Section VII of the County's Testimony ("Sheltering") at page 77, will be withdrawn.
O relevant testimony which LILCO finds offensive to its theory of the case. As demonstrated below, LILCO's arguments are unfounded in both fact &nd law and should be rejected by this Board.
In this Response, the Governments first address LILCO's erroneous claim that the County's Testimony seeks to expand the scope of this remand in a manner contrary to this Board's prior decisions, by "reclamor(ing) issues which have already been litigated and decided in LILCO's favor . . ." LILCO's Motion at
- 2. Each issue LILCO moves to strike as irrelevant, immaterial and barred by tag iudicata is discussed specifically below. Egg Section II.A/ The competency of the County's school official witnesses to address the issues raised by Contention 25.C is discussed in Section III. Finally,Section IV makes clear that the County's Testimony presents no challenge to NRC regulations, notwithstanding LILCO's claims to the contrary.
Before turning to the specifics of LILCO's Motion, however, two comments are necessary. First, it is significant that despite LILCO's attempt to strike substantial portions of the County's Testimony, the NRC Staff has not moved to strike any of 1/ LILCO seeks to stribe the following issues: reception centers for schoolchildren; plans for early dismissal and sheltering; which schools are located within the Shoreham 10-mile EPZ; telephone system overload; role conflict of teachers,and other administrative personnel; the effect of parents trying to pick up their children at school; the student population figures relied upon by LILCO; monitoring decontamination of schoolchildren; and plans for congregated care of schoolchildren.
the testimony- Obviously, therefore, the Staff does not share the concerns expressed by LILCO with respect to the County's Testimony.- Second, LILCO's suggestion that the Board not only should strik'e major portions of the proffered testimony, but also order the County to resubmit the testimony "absent the objectionable material" (LILCO's Motion at 2), is absurd and without precedent in the Shoreham proceeding. To begin with, there is no reason to strike the County's Testimony, and thus, f
there is no reason to have the testimony resubmitted. However, even if portions of the County's Testimony are stricken, the testimony would still have to be submitted as originally proffered, for purposes of appeal.
1 I. The County's Testimony Does Not Attempt to Broaden the Scoce of this Proceedino LILCO claims that the County's Testimony "seeks to expand the scope of this remand" proceeding by attempting to relitigate issues already decided. LILCO's Motion at 2. This argument, which takes many forms and is liberally applied to substantial portions of the County's Testimony, is baseless. The County's witnesses have proffered testimony directly relevant to the issue of the "availability of an adequate number of bus drivers to evacuate schoolchildren during a radiological emergency."
Memorandum and Order (Ruling on LILCO Motion in Limine and Motion 1/ The Staff has sought to strike one portion of the County's prefiled testimony regarding LILCO's proposed emergency broadcast system. Egg NRC Staff Motion to Strike Portion of Testimony of Gregory C. Minor Regarding the EBS Issue, dated April 20, 1988.
O i
i to Set Schedule), dated February 23, 1988 (hereafter, "February 23 Order"), at 3. That testimony provides a frank and candid assessment of LILCO's new proposal for the evacuation of o
schoolchildren as described in Revision 9 of the LILCO Plan.
Such testimony is appropriate and clearly within the scope.of ;
this proceeding, since the issues raised and discussed by the County's witnesses must be decided before this Board can determine whether LILCO's new evacuation proposal adequately protects the safety and welfare of the school populations within the EPZ.
r Even a summary review of the history of the bus driver role conflict issue makes clear that the testimony sought to be !
stricken falls within the scope of the Contention 25.C remand proceeding. In recognition of the need to evaluate the efficacy l of LILCO's new schools evacuation proposal, this Board rejected LILCO's October 22, 1987 motion for summary disposition of Contention 25.C and ordered that an opportunity "to confront" the dimensions of LILCO's new schools evacuation proposal was to be f provided. Memorandum and Order (Ruling on Applicant's Motion of October 22, 1987 for Summary Disposition of Contention 25.C),
dated December 30, 1987 (hereafter, December 30 Order"), at 5.
In so ruling, the Board recognized that LILCO had presented a !
"new arrangement for the supply of bus drivers" in the event of a !
Shoreham emergency, and that "LILCO's (new) plan (was) executory 5-1 1
and . . . require (d) analysis and review." Id. The County's witnesses, in their testimony, have presented that analysis and review.
Prior-to this Board's December 30 Order, the Appeal Board
, had remanded the issue of whether LILCO had adequately planned for the protection of the EPZ school populations. In part, the Appeal Board had stated as follows:
On the record now before us, we similarly.
cannot make a finding that a sufficient number of school bus drivers can be relied upon to perform their duties if an accident occurred at Shoreham. Therefore, we are remanding this matter to the Licensing Board for further exploration. All carties will be free to adduce additional evidence on the issues at minimum, the Licensing Board is to accept the testimony related to the survey of volunteer firemen. Upon review of the evidence presented at the reopened hearing, the Licensing Board should reconsider its prior findings and conclusions regarding the potential for role conflict among school bus drivers.
Lona Island Lichtino Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 NRC 135, 154 (1986) (emphasis added) (footnote omitted).
In accordance with the orders and rulings of the Appeal Board and this Board, the County's Testimony probes the efficacy of LILCO's new school evacuation proposal, as well as adduces "additional evidence" on, and further explores the issue of, the 1
availability of school bus drivers in the event of a Shoreham emergency. Thus, for example, the witnesses explain the purpose for which the County's Testimony is offered as follows:
We are providing testimony regarding whether EPZ school districts have sufficient school bus drivers and buses to carry out protective actions for schoolchildren in the event of a Shoreham accident. Specifically, our testimony addresses the single-wave evacuation of EPZ schools proposed by LILCO in Revision 9 of its emergency plan, as well as the early dismissal of schools proposed by LILCO. The issue concerning the availability of school bus drivers arises in the context of potential "role conflict" among such drivers.
County's Testimony at 31.
In its Motion, LILCO addresses each issue which it believes has already been litigated and decided in its favor. It then lists the portions of the County's Testimony to be stricken. Egg LILCO's Motion at 3-13. The Governments address below each of these issues. In the Governments' view, however, this Board need not do so. Not only EAn the County's witnesses address the issues complained about by LILCO, but they must do so, if the Board is to have before it all relevant information essential to a full and fair determination of the issues raised by Contention 25.C.
4.
I Indeed, the Board need not decide LILCO's relitigation allegations now, but may defer such a decision to the May 16 hearing. Pursuant to the Board's authority to regulate hearing -
procedure, the Board may, in its discretion, rule on the merits of LILCO's claim at trial and strike testimony if it is found to be cumulative or irrelevant. 10 CFR $ 2.757(b). This course of action seems particularly appropriate given the County's response to LILCO's Motion that the purpose for which its Testimony is offered is to delineate the bases for the witnesses' conclusion that LILCO's proposal is inadequate and not an attempt to relitigate already decided claims. With all the evidence before the Board at the hearing, the Board will be better situated to judge the merits of the parties' conflicting claims.
A. The County's School Official Witnesses Are Entitled to Substantiate the Bases for Their Opinions and Conclusions that LILCO's Plan Is Unworkable In claiming that much of the County's Testimony should be stricken because the school official witnesses are attempting to -
relitigate issues that are barred from such relitigation by the doctrine of Lgg iudicata, LILCO mischaracterizes not only the County's Testimony, but also the doctrine of tag iudicata.
Contrary to LILCO's argument, the proffered testimony does not attempt to relitigate any claims previously litigated. It is true that the County's witnesses reference topics, to which LILCO objects, that were the subject of prior litigation. Such topics L
include, for example, LILCO's failure to provide for the reuniting of parents with their children at reception centers.
In doing so, however, the County does not intend to relitigate these issues. Rather, the County's witnesses are merely attempting to provide the reasoning underlying the proffered testimony -- to exclain their position that they would not and could not violate their obligation to safeguard the welfare of their schoolchildren by allowing them to be transported pursuant to any implementation of LILCO's school proposal. This explanation is not an invitation or an attempt to relitigate old issues, and LILCO does this Board a disservice by arguing otherwise. Indeed, it must be presumed that, by attempting to preclude this Board from reviewing the bases for the witnesses' conclusion that LILCO's proposal is inadequate, LILCO seeks to prevent the mere invocation of any phrase that may have formed the basis for prior litigation.5/ LILCO attempts to accomplish this by urging the Board to accept its misinterpretation of the doctrine of tga iudicata.
The doctrine of rga iudicata is only to be given preclusive effect if the claim sought to be litigated is the same as that involved in the prior action and if that claim was actually 1/ Curiously, as discussed below, LILCO does not believe that
- it is similarly bound by the doctrine of rga iudicata; thus, it freely references in its testimony the very same kind of issues that it seeks to strike from the County's Testimony.
i I
litigated.1/
Houston Lichtino and Power Co. (South Texas Project, Units 1 and 2), LBP-79-27, 10 NRC 563, 566 (1979),
aff'd, ALAB-575, 11 NRC 14 (1980).
Contrary to LILCO's argument, tho school evacuation proposal now before this Board is not the s1 e plan or proposal that was litigated in 1983-84. Indeed, as thic Board has itself noted, LILCO is "presenting a new crrcngement for the supply of bus drivers."
December 30 Order at 5.
In the prior proceeding, LILCO relied upon the school bus drivers regularly employed by or under contract to the school districts to implement a multiple-wave evacuation or early 4
dicmissal of the EPZ schoolchildren. In contrast, under LILCO's :
l nSw proposal, LILCO would provide up to 477 drivers 8/ to
(
impicment a one-wave evacuation or early dismissal of cchoolchildren attending schcols within the EPZ. Thus, LILCO cannot claim that issues arising under LILCO's new school 7
of The other elements that must Igg iud 1CA1A will bar subsequentbe present before litigation are: the doctrine must have been determined by a valid and final judgment, the claim and that Egg South Texas Proiect,datormination must have been essential to the prior judgme 10 NRC at 566.
8/
The LILCO Plan in Revision 9, Attachment cnd one of LILCO's witnesses, Mr. Crocker, assert 3a to OPIP that 4773.6.5, drivors will be needed to implement proposal; moreover, both the Plan and Mr.LILCO's one-wave evacuation LILCO plans Crocker represent that of Douglas M. to supply at least that many drivers.
Crocker (February 2, 1988), at page 86. Egg Der)sition In its tootimony, drivors will however, be needed.LILCO has claimed for the first time that 488
- 3. Kolly, Michael K. Testimony of Douglas M. Crocker, Robert Lindell and Dennis S. Mileti on the Remanded Issuo of "Ro]c Conflict" L988 (hereafter of School Bus "LILCO Testimony"), Drivers, dated April 13, at 50.
evacuation proposal are the same as those involved in the prior action, or that the issues now before the Board today have previously been litigated. Simply put, LILCO's new proposal differs fundamentally from LILCO's old plan for the evacuation and early dismissal of schoolchildren. The County's school official witnesses are thus entitled to present their opinions and conclusions regarding LILCO's new and previously unreviewed proposal -- a proposal which arises under new facts, yet to undergo scrutiny by a Licensing Board.
A discussion of the specific testimony that LILCO is attempting to strike on the grounds of Igg iudicata follows.
- 1. The County Is Not Attempting to Relitigate the Issue of the Adecuacy of LILCO's Receotion Centers LILCO moves to strike testimony appearing on page 53, line 5, through 55, line 8, and pages 56 through 57, line 10. In addition, LILCO seeks to strike Attachments 13 and 14 of the County's Testimony. In LILCO's view, such testimony is objectionable because the County is improperly attempting to relitigate the issue of the adequacy of LILCO's reception centers for schoolchildren. LILCO's Motion at 3-4. LILCO is plainly wrong.
L It is, of course, true that in delineating their bases for ,
concluding that LILCO's schools evacuation proposal is unworkable, the County's school official witnesses identify ;
concerns relating to the reception centers which LILCO has designated in its Plan (Rev. 9) for schoolchildren. These l concerns are directly related to LILCO's new proposal in a number of ways, however -- a fact ignored by LILCO in its attempt to strike this testimony.
First, the County's witnesses make note of the fact that "the Nassau County Executive, Mr. Gulotta, has made clear that these facilities [the Nassau County Community College and the i Nassau County coliseum) are a21 available for LILCO's use."
l County's, Testimony at 53. Thus, they attach to their Testimony letters from Mr. Gulotta and a Nassau County Resolution, which make clear the position Nassau County has taken. County's Testimony, Attachment 13. Naturally, the County's witnesses, knowing that Nassau County has expressly refused to make its l facilities available for LILCO's use, find disturbing LILCO's l l I plan to transport schoolchildren to these facilities. They are ;
i 1
thus left with no alternative other than to conclude: "(w)e ;
would never allow our children to be transported to whose l availability is so uncertain." County's Testimony at 53. In '
fact, to uphold their obligation as school officials to protect the safety of their schoolchildren, the County's witnesses could [
reach no other conclusion. !
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Second, in their testimony the County's witnesses note that l LILCO's proposal fails to provide appropriate supervision of the 28,000 schoolchildren that could have to be relocated to LILCO's '
reception centers:
r LILCO's bus drivers would be given responsibility for supervising the children both on the buses and at the facilities, once reached. Even if teachers, who would also be '
subject to role conflict, rode on the bases, they would be in no better position than :
LILCO's personnel to supervise such a large l number of children under the circumstances ;
that would likely exist in the event of a '
radiological emergency.
County's Testimony at 54. f Third, the witnesses express their concern that if students are relocated before being decontaminated, as provided by LILCO's f Plan, those students might contaminate one anothert even if our students somehow manage to escape uncontaminated from the EPZ, they would again ,
face the risk of contamination from contaminated persons relocated to, but not !
decontaminated or monitored, at the Coliseum t or Community College. As children are F reported to be particularly susceptible to i the harmful effects of radiation, this lack .
of planning for decontamination and monitoring is serious.
Id. !
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F Fourth, the witnesses express concern with LILCO's failure to plan for the reuniting of children with their families. Thus, for example, the witnesses postulate the easy-to-imagine situation whereby parents would be unable to locate their .
children among the 28,000 other children relocated to Nassau County facilities by LILCO: I The LILCO Plan also lacks adequate provision ,
for reuniting parents with schoolchildren at the relocation centers. Should children actually be transported pursuant to the LILCO Plan, parents would not readily know to which, if any, relocation center their child had been taken. 1:t is easy to imagine the chaos and confusion that would result from parents converging upon the LILCO-designated relocation centers, in an effort to locate .
their children among 28,000 other children. t In some instances, brothers and sisters will likely be relocated to different facilities.
14 As can be seen, the County's Testimony does not attempt to relitigate the issue of the adequacy of LILCO's reception centers. Indeed, there could be no "relitigation" of LILCO's designated reception centers, since there never has been "litigation" of reception centers for schoolchildren: prior litigation focused on different facilities and/or a different segment of the population (the general public versus ,
schoolchildren). Nor does the proffered testimony defy the Board's prior orders, as LILCO claims. LILCO's Motion at 3. An expression of legitimate and genuine concerns regarding LILCO's l l
O new schools evacuation proposal is not an attempt to introduce evidence in this proceeding on the adequacy, appropriateness or feasibility of LILCO's reception centers for schoolchildren.
Rather, the County's witnesses are simply attempting to explain some of their reasons for why they have concluded that LILCO's new schools evacuation proposal is unworkable. Such testimony is clearly relevant, and material to the issues before the Doard, and is thus admissible. Egg 10 CFR S 2.743.
Moreover, in moving to strike the above-referenced testimony, LILCO misconstrues this Board's February 23 Order.
While this Board did state that "(q)uestions concerning reception centers for school children" are not within the scope of this proceeding" (February 23 Order at 4), the Board did not rule that witnesses would be precluded from even making reference to LILCO's reception centers. Such a ruling would have made no sense, as even LILCO must recognize.
To that end, although LILCO moves to strike an1 reference in the County's Testimony to reception centers, LILCO itself freely references and discusses its designated reception or relocation centers for schoolchildren both in its testimony and in its Plan provisions. For example, Revision 9 of the LILCO Plan identifies and designates, for each EPZ school district, the reception center to which the school population would be evacuated. OPIP 3.6.5, Att. 3. The LILCO Plan further states:
If a Site Area Emergency is declared, schools will be advised to either dismiss their students early or else implement a precautionary evacuation to the School Relocation Centers.
Plan (Rev. 9), Appendix A, at II-20. Further, in its testimony, LILCO's witnesses state:
After the bus is loaded, the school bus drivers will drive to the school relocation center designated for that school in the Assignment Packet.
LILCO Testimony at 56. LILCO references its reception centers for schoolchildren in various attachments to the LILCO Testimony.
For example, Attachment M to the LILCO Testimony, consisting of LILCO's new "draft" of Appendix A, contains tne following statement:
Upon a decision by school officials to evacuate schools in the EPZ, schoolchildren will be transported by bus directly to one of two centers outside the EPZ that have been designated as relocation centers: the Nassau Coliseum or the Nassau Community College.
Facilities at the Coliseum and the Community College are adequate to accommodate all of the approximatley 28,000 children enrollad in public and private schools in the EPZ.
Appendix A, at II-20a (Draft).
Thus, LILCO essentially would have this Board permit it and its witnesses to make reference to LILCO's reception centers for schoolchildren, while barring the County and its witnesses from doing so. LILCO cannot have it both ways. Accordingly, the Board should reject LILCO's attempt to exclude the County's i Testimony which references LILCO's reception centers for schoolchildren, but if it chooses not to do so, the LILCO Testimony on this same subject must also be stricken.
4
- 2. The County Is Not Attempting to Reliticate Early Dismissal Issues Similarly, LILCO complains that some of the County's Testimony "seeks to relitigate the issues of ' role conflict' during early dismissal and LILCO's procedures for early 4
dismissal . . . issues that have been fully litigated and decided in LILCO's favor." LILCO's Motion at 4. LILCO asserts that such I
testimony should be stricken as not relevant to this proceeding and as barred by reg iudicata. 14.1/ Again, LILCO is wrong.
4 It must be kept in mind that the County's witnesses are evaluating a new LILCO proposal for evacuating schoolchildren in j the event of a Shoreham emergency. Some of their statements and
- opinions regarding this new proposal may be similar to statements
! 1/ Specifically, LILCO moves to strike testimony appearing on pages 28, 29, 31, 32, 65, 71, 72-77, 78, 79 and Attachment 10.
1 l
t made and testimony submitted during the litigation of LILCO's old Plan. This may mean, of course, that some of the same flaws and deficiencies identified by the County's witnesses in connection with LILCO old Plan were not remedied by the new proposal and, thus, have surfaced again. Or, it may be that LILCO's new proposal, for whatever reason, is riddled with defects similar to those found in earlier Plan revisions. In either case, the County's proffered testimony is admissible.
Furthermore, in ALAB-832, the Appeal Board held that the parties were "free" in this remand proceeding to "adduce additional evidence" with respect to whether a sufficient number of school bus drivers would be available to transport i P
schoolchildren in the event of a Shoreham accident. 23 NRC at 154. The Appeal Board did agt rule that evidence previously '
brought to bear would be precluded in the remand proceeding. .
Here, the County's witnesses are merely analyzing and reviewing LILCO's "new arrangement for the supply of bus drivers."
December 30 Order at 5. As such, the testimony is squarely within the scope of this remand proceeding.
Not surprisingly, LILCO would have this Board cor.;1rie otherwise. Thus, LILCO claims that even the mere mention of the words "early dismissal" by the County's witnesses should be f
L viewed as an attempt by the County to relitigate the issue of early dismissal. As noted, however, LILCO's new proposal is !
t i
fundamentally different than LILCO's old plan for providing protective actions for schoolchildren. Under the new proposal, LERO buses and drivers will allegedly be available to implement early dismissal; under the old, previously-litigated LILCO Plan, school bus drivers regularly employed by or under contract to the schools were relied upon to implement early dismissal. The witnesses are therefore entitled to evaluate LILCO's new proposal, especially in light of the fact that the protective action of early dismissal is expressly addressed by contention 25.C -- the contention remanded for further hearings by the Appeal Board.
Furthermore, having evaluated LILCO's new proposal, and t
having concluded that implementation of that proposal as it relates to early dismissal would endanger the safety of their schoolchildren, the County's witnesses are entitled to state the bases for that conclusion, which are clearly relevant to this Board's appraisal of the adequacy of LILCO's new proposal. Thus, for example, the witnesses delineate the following concerns:
- a. Risk of Exoosure to Radiation. Regardless of whether regular drivers or LILCO drivers are used, because multiple bus runs are necessary to implement early dismissal, "it would take even longer to transport schoolchildren from schools to their homes. Consequently, there would be a real likelihood that children could be caught in a radiological plume."
County's Testimony at 72-73.
- b. Difficulties in Imolementation. "[T]he implementation of an early dismissal requires central office administration personnel, transportation contractor personnel, teachers and other school district employees to perform decision-making and notification functions, and supervisory and logistical duties, in addition to the transportation of schoolchildren. All these personnel would
'likely be subject to role conflict. Moreover, diffi.lulties in notifying off-duty bus drivers, and the role conflict that would prevail with respect to those drivers who could be contacted, would make it virtually impossible to obtain many drivers."
Id. at 73.
- c. Difficulties Contactino Drivers. "During an early dismissal due to snow, [it is] often very difficult to contact drivers even though the drivers have forewarning of the inclement weather conditions. Many drivers are not at home and thus cannot be reached on their home phone. Moreover, the phone system here cannot handle the heavy volume of phone calls being made during times of inclement weather conditions. (We] typically cannot get a dial tone due to overloading of the phone circuitry systems and am unable to even try to reach my drivers at their homes."
14
- d. Problems with LILCO Drivers. "Third, even if one assumes that LILCO might attempt to send its drivers to ' assist' the schools with early dismissal, it must again be emphasized that we would never allow our children to board buses driven by LILCO omployees. Under LILCO's evacuation proposal, LILCO's drivers would have to follow the printed directions provided by LILCO at the time of the emergency to find the particular school he or she would be assigned to evacuate. For early dismissal, however, these drivers would have to not only locate a particular school, but would also have to follow routes to the children's homes.
This is a difficult task for even our trained regular school bus drivers. Short of asking each child where he or she lives, LILCO's employees would simply be unable to find the homes of our schoolchildren."
Id. at 74.
- e. Early Dismissal would Endancer the Welfare of the Schoolchildren. "[E]arly dismissal does not present a realistic option (whether it is being implemented by regular school bus Jrivers or LILCO drivers) because we would not discharge our children to homes without parental or adult supervision; nor would we choose to relocate our children to locations within the EPZ which may be or might become contaminated. We all have a large percentage of latch key children attending our schools.
Indeed, some school districts do not engage in early dismissals at all for that reason."
- 14. at 75. Such concerns cannot be ignored by the Board. They directly impact the adequacy of LILCO's new proposal for implementing protective actions for schoolchildren. Further, they are squcrely within the scope of Contention 25.C, which expressly addresses the early dismissal issue.
The relevancy of the objected-to testimony is also made clear by the fact that the County's witnesses offer testimony with respect to their first-hand knowledge of what is involved in the implementation of early dismissal. Such testimony vividly illustrates the reasons why the County would not allow LERO drivers to implement early dismissal under the LILCO proposal.
Thus, for example, the witnesses testify that at Longwood, early dismissal requires the driving of at least 317 individual routes; in Riverhead 140 individual routes must be covered; Middle Country requires the driving of 550 individual routes over which more than 5,600 stops must be made; and in Mt. Sinai, drivers must navigate 113 individual routes. County's Testimony at 75.
.Quite simply, the witnesses know that short of asking each child where he or she lives, the LERO drivers would simply be unable to find the homes of the schoolchildren. Again, the purpose of the witnesses Testimony is not to relitigate early dismissal, but to inform the Board why they consider LILCO's new and unecrutinized proposal to be unworkable.
Curiously, based on its claim that the County is attempting to relitigate the issue of early dismissal, LILCO moves to strike the actual text of Contention 25.C from the County's Testimony.
LILCO's Motion at 6 (item 4, seeking to strike pages 31, line 12, through 32, line 22). Specificallf, LILCO moves to strike the following:
Q. What contention is addressed in this testimony?
A. (All) Contention 25.C which states:
Intervenors contend that LILCO Plan fails to comply with 10 CFR SS 50.47(a)(1),
50.47(b)(1), and 50.47(b)(3), because the Plan fails to address the problem of emergency worker role conflict.
Intervenors contend that a substantial number of the emergency workers relied upon under the LILCO Plan will resolve such conflicts by attending to their other obligations prior to, or in lieu of performing the emergency functions assigned to them by LILCO. In the absence of such workers, the LILCO Plan cannot and will not be implemented, and there can be no finding of compliance with 10 CFR 50.47(a)(1), 50.47(b), and 1
NUREG-0654 S II. The emergency workers likely to experience role conflict, the type of conflict, and the effect of such conflict upon the implementability of the LILCO Plan are set forth in Sections A-F below.
Contention 25.C. The LILCO Plan fai'Is to take into account the role conflict that will be experienced by school bus drivers. In fact, a substantial number of school bus drivers are likelj to attend to the safety of their own families before they report (if they report at all) to perform the bus driving duties which LILCO assumes will be performed. Role conflict of school bus drivers will mean that neither school buses nor school bus drivers will be available to implement the LILCO Plan.
Without an adequate number of buses or bus drivers, LILCO will be incapable of implementing the following protective actions:
- 1. early dismissal of schools (necessary under the LILCO Plan to permit schoolchildren to be sheltered or to evacuate with their parents);
- 2. evacuation of schools.
Since the proceeding before this Board arose out of a remand by the Appeal Board of this contention, it is difficult to understand LILCO's desire to strike the text of the contention l itself from the County's Testimony. On its face, this contention l is obviously relevant and material to the outcome of this l
proceeding. Perhaps counsel for LILCO were simply overzealous in l drafting LILCO's Motion. But, whatever the reason, LILCO's attempt to strike the actual text of the remanded contention,
premised on a claim that by including the contention,'the County is attempting to relitigate early dismissal, should be summarily rejected.
- 3. Suffolk County Is Not Attempting to Alter the EPZ Boundary Lines LILCO argues that portions of testimony appearing on pages 13, 39, 66 and 68 of the County's Testimony should be stricken because the County is in some way attempting to change the Shoreham EPZ boundary lines. LILCO's Motion at 6-8. LILCO's argument clearly mischaracterizes the testimony of the County's witnesses.
The purpose of the referenced portion of the County's Testimony is not to alter EPZ boundary lines, but to explain the protective actions that would need to be taken in the e' rent of an emergency and the impac* of those actions on bus and bus driver availability. As t%a itnesses testify, some students are bussed daily to parochial . 3 private schools inside the EPZ. Egg County's Testimony at 13, 66. The school districts would also insist that schools imme.iately outside the EPZ be treated the same as schools inside the EPZ. Id. at 13. These facts render LILCO's bus availability calculations incorrect because fewer school district buses would be "available" to evacuate EPZ schoolchildren than LILCO anticipates to be the case. Thus, the County's school official witnesses testify that in the event of e !
an emergency, they could not siphon off all of their bus and bus driver resources to evacuate only those schools within the EPZ boundary, because they would need some of those resources to evacuate children attending private or parochial schools located within the EPZ or attending schools very near the EPZ boundary line.10/
lE/ In accordance with the decision of the school officials to protect their schoolchildren attending schools near the EPZ, :he County's witnesses testify as follows:
- 1. In Riverhead, Dr. Suprina and Mr. Doherty have children attending four schools within the EPZ and attending other schools located very close to the EPZ boundary line. In the event of radiological emergency, these school officials would attempt to protect all their students:
"We feel it is unrealistic to assume that those schools falling just outside the 10-mile line are somehow ' safe'. Thus, we consider all the Riverhead schools to fall within the zone of potential danger." Id. at 13.
"Further, we could not ignore our non-EPZ schools. As previously noted, these schools are very close to the EPZ boundary line and we consider these schools also to be within the zone of danger. Parents would not believe that their children in those schools are free from risk. Thus, a portion of our bus resources would have to remain devoted to non-EPZ schools." Id. at 68.
- 2. Dr. Brodsky and Mr. Rossi, school officials for Middle Country Central School District, express similar concerns:
(T]he LILCO Plan indicates that all our public schools are outside the 10-mile EPZ. We have difficulty with that, however. The Bicycle Path School, located at 27 North Bicycle Path in Selden, and the New Lane Elementary School, located at 10 New Lane in Coram, appear to be within 10 miles of Shoreham. If not, they are (footnote continued)
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-c Curiously, LILCO also moves to strike the following statement by Mr. Petrilak, who offers testimony for the County in his capacity as a member of the Mt. Sinai Board of Education. As with the testimony discussed above, LILCO claims that this testimony is an attempt by the County to alter the EPZ boundary:
LILCO's Attachment 3a to OPIP 3.6.5 neglects to include our high school students attending school in Port Jefferson. The total Mt. Sinal student enrollment including these students is 2,332, not 1,830 as stated by LILCO.
County's Testimony at 39. Perhaps LILCO is confused. Many of Mt. Sinai's students do in fact attend Port Jefferson High School. Yet, both Mt. Sinal schools and Port Jefferson High
, School are referred to in the LILCO Plan as located within the EPZ and requiring evacuation in the event of an emergency. Plan (Rev. 9), OPIP 3.6.5, Att. 3a. Mr. Petrilak, in so testifying, is merely calling attention to the fact that Mr. Sinal enrollment (footnote continued from previous page) certainly virtually on the edge of the EPZ.
Thus, in our opinion we have children who live in the EPZ, even though they may attend public schools which lie outside the EPZ.
Furthermore, they testify as follows:
(W]e could not release our buses or drivers, notwithstanding the many concerns previously stated, because we would need them for our children. The parents of schoolchildren attending our schools would expect us to get their children home or to attempt to evacuate them if a serious accident occurs. Some of our schools are very close to, if not within, the 10-mile EPZ boundary line. If any event, no one believes that schools beyond the 10-mile zone are free of risk. County's Testimony at 66.
s is greater than the figure stated in LILCO's Plan - presumably because LILCO has overlooked the Mt. Sinal students attending Port Jefferson High School, another EPZ school.
In any event, none of the testimony objected to by LILCO on the ground that the County is seeking to alter the EPZ boundary lines should be stricken. The testimony is relevant to the remanded issues before the Board and, contrary to LILCO's assertions (LILCO's Motion at 6-7), it does not go beyond the scope of the remand, or challenge the NRC's regulations or the Licensing Board's prior planning decision.
- 4. The County Is Not Attempting to Relitigate the Issue of Role Conflict of Teachers and Other Personnel LILCO moves to strike portions of the County's Testimony appearing on pages 28, 48, 52-53, 54, 73, 77, and 79, claiming that the County is "revisiting" role conflict of teachers and administrative personnel and that this "revisitation" is barred by the doctrine of rga iudicata. LILCO's Motion at 8-9. The testimony at issue is not offered to litigate whether teachers and other school personnel will experience role conflict, however, but rather to address whether LILCO's new schools plan will work, given what the school officials know abcut their personnel. Thus, rather than attempting to strike the County's I
Testimony for legitimate reasons, it appears that LILCO merely is attempting to strike the proffered testimony on the ground that it contradicts LILCO's testimony.
The County's Testimony sought to be stricken by LILCO is based on the first-hand knowledge of the County's witnesses, and directly relates to what actions the teachers they know and trust would take in the event of an emergency. The school officials know that, contrary to LILCO's assertions, these teachers and other school personnel would not board the LILCO buses in the event of an emergency. For instance, Mr. Petrilak, Mt. Sinai's School Board member, recalls "an informal survey of Mt. Sinal employees conducted by the Mt. Sinai Teachers Union in 1983" which "indicated that role conflict would be a serious problem during a Shoreham emergency." County's Testimony at 48.
Similarly, Mr. Brodsky and Mr. Rossi of Middle Country School District firmly believe that in an emergency, many of their staff members would abandon their jobs to attend to the safety of their families. Thus, they refer in their testimony to "the likelihood that school personnel, including bus drivers, would experience role conflict." Id. at 28.
In short, based on their daily contact with their teachers and other school personnel, the school officials testifying on the County's behalf believe that LILCO's expectation that teachers will ride the LERO buses offers:
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no solution. . . . [T]eachers and other personnel would likely be as subject to role conflict as other personnel. In our opinion, it is not reasonable to believe that as many as 477 (actually more would be needed when LILCO's underestimation is corrected) school personnel would agree to accompany LILCO drivers during a shoreham emergency. Thus, in accordance with LILCO's provisions, and even assuming buses were available, some of our children would be riding unsupervised and under adverse conditions on overcrowded buses driven by LILCO employees for 30 or 40 miles.
This is unacceptable.
County's Testimony at 52. Thus, the witnesses explain that LILCO cannot necessarily expect teachers or other school personnel to perform the role LILCO has assigned them, and that an unsupervised trip to Nassau County under adverse conditions is unacceptable as it poses too grave a safety risk to the children.
In so testifying, the witnesses are not attempting to relitigate the issue of role conflict of teachers and other personnel, but are merely delineating, on the basis of their first-hand knowledge, another reason for why they have concluded that LILCO's new schools evacuation proposal does not protect the safety of schoolchildren, and is unworkable. As such, the testimony is relevant to the issues before the Board, and should be admitted, notwithstanding LILCO's attempt to strike such testimony.
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- 5. Telechone Overload LILCO mcVes to strike portions of pages 44, 73, and 74 cf the County's Testimony, which refer to difficulties the witne.sses have experienced when attempting to telephone their bus drivers during adverse weather conditions. LILCO specifically claims that (1) the County's witnesses are somehow not competent to testify about events they personally have experienced; and (2) that the County's witnesses are doing nothing more than attempting to reopen the record regarding the nonlitigable issue of telephone overload. LILCO's Motion at 9.
LILCO again mischaracterizes the purpose of the County's Testimony. The purpose of the testimony is not to litigate whether telephone lines will or will not be overloaded. Rather, it is to set forth one reason why the school officials testifying on the County's behalf consider LILCO's schools proposal to be deficient: because they know from their experience that it would be difficult to contact their regular school bus drivers by telephone. Clearly, these witnesses are competent to render such testimony, based upon their experience and the difficulties they have encountered in attempting to telephone their drivers.ll/
11/ Mr. Doherty, for example, proffers the following testimony:
During early dismissal due to snow, I often find it difficult to contact drivers even though the drivers have forewarning of the inclement weather conditions. . . . .(T]he phone system here cannot handle the heavy volume of phone calls being made during times of inclement weather conditions.
(footnote continued) 4' Mr. Rossi, in fact, h2s learned that an early dismissal can only be implemented by avoiding the necesity of having to call up his d' rivers. Thus, he testifies that he is:
able to implement early dismissal due to snow only because, at the slightest hint of winter weather, I pay my drivers to remain at the bus yard. I also call my contractors and suggest that they do the same with their drivers. If I did not do this, I-would never have_enough drivers to implement early dismissal.
County's Testimony at 74. Clearly, the purpose of this testimony is not to reopen the record regarding telephone system overload.
Rather, the testimony seeks to explain the difficulty involved in mustering school bus drivers, even under the mildest "emergency" situations, and explains part of the basis for the conclusion of the County's witneses that few regular school bus drivers would report to drive if an emergency were to occur.
Moreover, it is difficult to understand LILCO's objection to these portions of the County's Testimony, since LILCO itself refers in its testimony to the likelihood that telephone circuitry overload may occur during an emergency, thereby (footnote continued from previous page)
I typically cannot get a dial tone due to overloading of the phone circuitry systems and am unable to even try to reach my drivers at home. At the first sign of any emergency at the Shoreham plant, it is then likely that many people would try to locate friends and family members. Consequently even if some of my drivers were at home, I would be unable to reach them.
County's Testimony at 74.
hampering telephone contact of bus drivers. In evaluating the evacuations that allegedly followed the 19 non-radiological emergencies discussed by the LILCO Testimony, LILCO witnesses Kelly, Lindell and Mileti testify that "difficulties in contactina drivers due to busy teleohone circuits" were experienced. LILCO Testimony at 29. Thus, LILCO is again placing itself in an anomalous position: LILCO seeks to prevent the County from referring to issues that LILCO itself acknowledges and addresses in its testimony. This kind of obviously contradictory position should be afforded little, if any, weight by the Board.
- 6. Parents' Attempts to Pick Up Their Children at the Schools Next, LILCO erroneously claims that the County's witnesses are precluded from expressing their belief that parents would converge upon the schools were an evacuation of the schools attempted. The basis for this objection is that the Licensing Board, in 1985, did not find convergence of parents on the schools to pose particular problems for LILCO under the version of LILCO's Plan litigated during 1983-84. LILCO's Motion at 10.
Accordingly, LILCO moves to strike portions of the County's
, Testimony appearing on pages 28 and 64, line 19, through 65, line 2.
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In so moving, however, LILCO is attempting to extend, without basis, the scope of the decision that the Licensing Board put forth following review of LILCO's old Plan, to cover LILCO's new, unreviewed proposal.12/ A new school evacuation plan is now before the Board. Under that plan, LERO drivers, who have not been approved by the school districts, would be relied upon to implement a one-wave evacuation of the schools and to transport children upwards of 40 miles away to one of two reception centers. Parents are likely to be even more concerned by the prospect of their children being transported long distances by LILCO's employees (who would likely be total strangers to the parents and the schoolchildren) than they were when LILCO planned to have the regular school bus drivers return children to their homes. Parents would be concerned not only about their children's safety, but also about whether they would be able to reunite with their children. Based on these concerns, and others, the County's witnesses offer the followed objected-to testimony:
Further, it would have to be expected that many parents, fearful of the accident at Shoreham, would converge on the schools in an attempt to reunite with their children, adding further to traffic congestion. Even assuming any buses actually arrived at the schools and children boarded those buses, it is unlikely that those buses would leave the parking lots 12/ Even under LILCO's old Plan, this Board acknowledged the i likelihood _that "parents upon notification of an early dismissal l will depart for the school to collect their children." PID, 21 j NRC 644 at 866 (1985).
l promptly as parents would likely board the buses in search of their children. This would add substantially to the chaos and confusion.
County's Testimony at 64-65. Such testimony is appropriate for this Board's review. This Board must consider the logistical problems (such as traffic congestion resulting from the convergence of concerned parents upon the schools) that would likely arise were LILCO's new school evacuation proposal to be implemented. Accordingly, LILCO's attempt to strike this portion of the County's Testimony thould be rejected.
- 7. The County Is Entitled to Point Out the Deficiencies in LILCO's Method of Calculatino School Pooulation Ficures LILCO also moves to strike testimony appearing on pages 37-42 and 67-70 of the County's Testimony, arguing that the County cannot now question LILCO's method of calculating student enrollment figures because: (1) the County did not previously question LILCO's method; and (2) the Board somehow granted its imprimatur to LILCO's method of calculation in its 1985 initial decision. LILCO's Motion at 10-11.
With respect to LILCO's first argument, it is patently absurd to assert, as LILCO does, that the County waived its right to identify the deficiencies in LILCO's student enrollment figure
, calculations under LILCO's new proposal, by failing to object to LILCO's calculation methods under the old LILCO Plan. To begin I
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with, the factual context of the prior proceeding was entirely different.13/ The County did not question LILCO's calculations in 1984, because the method used by LILCO then to calculate the number of students to be evacuated was entirely irrelevant under the old Plan, in which LILCO relied upon the school districts to transport students home using their regular drivers and buses.
Regardless of LILCO's student per bus calculations under the old Plan, the school districts would have placed what they knew to be an appropriate number of children for safe transportation on their buses.
Circumstances have now changed, however, with LILCO proposing to use LERO drivers and to overload buses. Thus, LILCO's method of calculation is now highly relevant. The school officials testifying on the County's behalf make clear that they would never allow buses to be loaded according to LILCO's calculations, because to do so would result in overloading the buses, which would not be safe, particularly for a long 30 to 40 13/ It is interesting to note that LILCO used a different method of student enrollment calculation when it first presented its new school bus driver proposal by moving for summary disposition of l
Contention 25.C. In its October 22, 1987 summary disposition motion, LILCO "simplified the calculation," by using "50 students per bus to determine the number of buses needed." LILCO's Motion i for Summary Disposition of Contention 25.C, dated October 22, 1987, at 13, n.6. Now, however, LILCO assumes 60 students per bus for elementary and middle schools, and 40 students per bus for high schools. LILCO's Motion at 10. Thus, LILCO has not been consistent in its methodology for calculating the number of i
students to be evacuated in the event of a Shoreham emergency.
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mile trip such as to Nassau County.ld/ Looked at somewhat differently under LILCO's new school proposal, LILCO has employed a method for calculating the number of students to be evacuated, and LILCO relies upon its methodology to establish what LILCO believes to be an adequate number of buses and drivers to evacuate the EPZ schools. LILCO has thus put the numbers of buses and drivers it claims are sufficient for evacuating the EPZ schools into evidence. Nonetheless, it attempts to preclude any scrutiny of those numbers.
li/ The witnesses state:
"In our experience, one must be careful about crowding buses even under the best circumstances.
A crowded bus leads to extra noise and confusion, which is very distracting to the driver and poses a potential safety hazard. We are very careful to monitor crowding and would permit it, if at all, only on short trips involving the transportation of elementary students (10 miles or 20 minutes or less) and only when there are several adults, besides the driver, to monitor the situation. For any trip cver 10 miles, we would never load the bus three per seat, but would always place only two students per seat, regardless of the age or size of the students. We would never allow a crowded bus on a long trip, such as to the Nassau Coliseum, no matter how many adults were along. For such a long trip -- especially in the possibly congested conditions of a Shoreham evacuation -- we would not permit more than two children per seat of any age or a maximum of 4A children per bus. LILCO's plan to have 60 children per 20-seat bus is not acceptable and is not safe."
County's Testimony at 41-42.
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The County's witnesses also object in their testimony to LILCO's use of "reduced" rather than actual total enrollment figures to estimate bus requirements. LILCO's recalculation reduces the enrollment figures up to 20 percent. In addition, as the witnesses note, LILCO uses enrollment figures which understate the actual enrollment at the EPZ schools, before reducing that figure by up to 20 percent. As a result, it is virtually guaranteed that LILCO would have too few buses to implement a single-wave evacuation. The County's witnesses are naturally concerned about that fact, and have so testified.15/
LILCO, however, attempts to prevent the errors in its calculations from being disclosed, by claiming that the County is barred fr.om pointing out such errors. Such a claim is totally misplaced. LILCO's errors are relevant to the Board's assessment of the new LILCO school evacuation proposal. Accordingly, LILCO's attempt to strike the referenced portions of the County's Testiraony should be denied.
15/ The witnesses testify that it is more appropriate and prudent to use total enrollment figures to calculate the number of buses needed for a one-wave evacuation of EPZ schools because:
"(e]nrollment at our schools constantly increases. Further, it is simply not possible to predict on any particular day how many children will be absent from school. Moreover, LILCO's use of l enrollment figures that are lower than that of total enrollment is all the more in error because LILCO has generally understated l the actual school enrollment figures for the EPZ schools."
County's Testimony at 38.
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- 8. The County Is Not Attempting to Relitigate the Issues of Monitoring and Decontamination, Concrecate Care Centers, or Limited Road Network LILCO repeats its claim that the County is attempting to relitigate issues which have already been decided at pages 11-13 of its Motion. Specifically, LILCO moves to strike portions of pages 28, 30, 54 and 69 of the County's Testimony. There, the County's witnesses explain that they consider LILCO's new schools evacuation plan to endanger the safety of schoolchildren, because of: (1) LILCO's failure to provide for the monitoring or decontamination of schoolchildren; and (2) the inevitable problem i
of traffic congestion in the event of a Shoreham emergency, particularly in light of the lack of adequate access to Mt. Sinai schools in the event of an emergency. Likewise, Dr. Koenig's mere reference to the fact that his East Meadow District schools are not available to LILCO for use as congregate care centers triggers a relitigation tirade by LILCO. LILCO's Motion at 11-13.
In making these objections, LILCO distorts the County's Testimony and takes it out of context. This is demonstrated as follows.
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- a. Monitorino and Decontamination The County's witnesses are understandably concerned that the LILCO Plan contains no provision for the decontamination or monitoring of schoolchildren prior to their arrival at the Nassau County Coliseum or the Community College. Accordingly, they testify as follows:
As a result, even if our students would somehow manage to escape uncontaminated from the EPZ, they would again face the risk of contamination from contact with contaminated persons relocated to, but not decontaminated or monitored at the Coliseum or Community College. As children are reported to be particularly susceptible to the harmful effects of radiation, this lack of planning for decontamination and monitoring is serious.
County's Testimony at 54. Because of this and other concerns referenced in the testimony, the County's witnesses testify that they would not and could not entrust the safety and welfare of their children to LILCO. The witnesses are therefore merely referring to one more reason leading them to conclude that LILCO's new school evacuation proposal is unworkable.
It is absurd to state, as LILCO does, that the witnesses are attempting to relitigate the monitoring and decontamination issues addressed in the reception center proceeding. LILCO's Motion at 11. There, the inquiry was into the adequacy of LILCO's monitoring and decontamination procedures, and the facilities that had been earmarked by LILCO as reception centers
for the general public. In the instant case, LILCO has failed to provide similar capabilities for the schoolchildren that might have to be evacuated. That is what concerns the witnesses.
- b. Concrecate Care Dr.-Koenig's testimony referring to congregate center arises in the following context:
Q. Have your Districts taken a position regarding the Shoreham plant and/or LILCO's plans for protective action for schoolchildren?
A. (Koenig) The East Meadow District has taken no formal position on Shoreham, ,
except to advise the Red Cross and LILCO that our schools cannot be used as congregate care centers in a Shoreham emergency.
County's Testimony at 27, 30. On its face, LILCO's objection to Dr. Koenig's testimony is without merit. Dr. Koenig is simply stating a face, not attempting to raise for Board review an already-decided issue. LILCO may not appreciate the fact that the East Meadow schools are not available for use as congregate care centers, but attempting to preclude reference to that fact will not change it. LILCO's basis for striking Dr. Koenig's statement of the position taken by his school district is unfounded, trivial and frivolous. No further discussion is warranted.
- c. Limited Road Network Here, as well, LILCO attempts to. alter the reality of the situation by moving to strike any reference in the County's Testimony to facts disadvantageous to LILCO's position. For example, Mr. Petrilak, as a Mt. Sinal School Board member, is keenly aware of the normal daily heavy traffic congestion on the only two thoroughfares leading to Mt. Sinal's elementary and junior high schools. His first-hand knowledge of these conditions leads to his concern that in an emergency, this congestion might hamper or prevent evacuation attempts at the schools. Thus, Mr. Petrilak has testified that:
given the daily heavy traffic congestion on the two roads leading to our elementary and i junior high school (Route 25A and North ;
Country Road) and given the fact that traffic will be infinitely more congested were an emergency at Shoreham to occur, it is highly unlikely that if any buses managed to reach these schools, they would be able to negotiate the left turn onto either Route 25A or North Country Road. Quite simply, were any buses to '
reach the schools, those buses would have a difficult time trying to leave the parking lot.
County's Testimony at 69.
Mr. Petrilak's testimony is not an attempt to relitigate the issue of the limited road network on Long Island; nor is the other passage sought to be stricken by LILCO (page 28, lines 4-5). Indeed, even LILCO has acknowledged in previous hearings
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that coaditions on the roads would be congested. Given that fact, Mr. Petrilak's testimony presents an accurate depiction of one of the reasons why LILCO's proposal would be unworkable.
II. The County's Witnesses Are Competent to Testify on the Matters Presented in Their Testimony LILCO claims that the County's witnesses are "incompetent" to testify regarding: (1) their understanding of the Licensing Board's recent decision on LILCO's training program; (2) what they know to be the position of neighboring school districts regarding LILCO's new school evacuation proposal; (3) their understanding of role conflict and how it pertains to this proceeding; e.nd (4) the 255 bus driver statements referenced in the County's Testimony, some of which were collected at the witnesses' bus yards. LILCO's Motion at 13-16. Each of these arguments is without merit, as will be demonstrated below.
A. The Licensino Board Decision (LBP-88-2)
LILCO moves to strike testimony appearing on page 52 of the County's Testimony, which discusses the fact that LILCO is unlikely to be able to train its bus drivers adequately given the inadequacy of LILCO's training program. The basis for LILCO's objection to this testimony is that "(n]one of Suffolk County's witnesses are legal experts." LILCO's Motion at 14.
1 Accordingly, in LILCO's view, they are not competent to read the OL-5 Board decision and testify as to their understanding of that Board's finding. This is nonsense.
The County's witnesses need not be "legal experts" to understand the ramifications of a Board finding that LILCO's training program is deficient, or "fundamentally flawed." The conclusion of the OL-5 Board is a factual conclusion, based on numerous factual findings that LILCO's training is inadequate in several respects. As the witnesses state:
The recent Licensing Board decision (LBP 2), which questioned the adequacy of LILCO's training program in general, reinforces our belief that LILCO's training program is deficient.
County's Testimony at 52. One need not be a "legal expert" to appreciate the fact that if LILCO's training program is deficient in general, then a specific portion of that program -- e.o., bus driver training -- would likely also be deficient. Thus, LILCO's attempt to strike the witnesses' concerns about tne recent OL-5 Board decision is baseless and should be summarily rejected.
LILCO may examine the County's witnesses at trial regarding their understanding of the decision and its relationship to this proceeding. Based upon that examination, the Board can decide the weight to be accorded this testimony. The objected-to testimony, however, should not be stricken.
O B. The County's Witnesses Are Competent to Testify About the Positions of Other School Districts Recardino LILCO's Schcol Proposal LILCO next claims that the County's witnesses are now barred from addressing their understanding of the positions taken by neighboring school districts regarding the LILCO's new school evacuation proposal because, at the time of LILCO's depositions of the witnesses, they had not discussed LILCO's proposal with other school district officials. LILCO's Motion at 15.
Accordingly, LILCO moves to strike a portion of pages 78-79 of the County's Testimony. LILCO's position is unfounded.
First, the depositions cited by LILCO took place in February of this year. Since the time of their depositions, the witnesses have become familiar with the positions taken by other school districts regarding LILCO's proposal. This familiarization derives from the witnesses discussions with school officials from other districts,ll/ the witnesses' review of resolutions passed 15/ All of the County's witnesses belong to County and State-wide professional associations as a result of their positions as schoo] officials and attend regularly scheduled meetings; topics such as LILCO's school proposal have in the past served as a ,
subject for much consideration at these meetings. Specifically, Dr. Koenig and Mr. Muto attend meetings of the Nassau/Suffolk School Boards' Association. Dr. Suprina is an active member of the New York State Council of School Superintendents, the Suffolk County Organization for the Promotion of Education and the BOCES I Council of Superintendents. The Transportation Directors, Mr. Rossi, Mr. Doherty and Mr. Smith, all attend meetings of the -
Suffolk County Chapter of the New York Association for Pupil Transportation for which Mr. Rossi serves as President. In (footnote continued) l
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by other districts registering opposition to LILCO's school-related Plan provisions, and through the bus driver statements signed by drivers employed by neighboring districts.ll/ Having engaged in discussions with school officials from neighboring districts, and having read the school resolutions and bus driver statements, these witnesses are competent to present the testimony that LILCO seeks to strike.
If LILCO really believes that there are school districts that have actually taken a position contrary to that stated by the County's witnesses, LILCO is free to adduce such evidence at the May 16 hearing. Moreover, LILCO will have ample opportunity on cross-examination to probe the depth of the witnesses' knowledge regarding the position the school districts have taken regarding LILCO's school provisions. The Board can then decide (footnote continued from previous page) general, the Suffolk County Transportation Directors are a close-knit group, and keep abreast of one another's activities.
Egg County's Testimony page at 2-6.
11/ According to the witnesses:
(M)any schools within the EPZ, other than ours, have passed resolutions attesting to their belief that LILCO's school evacuation plan is inadequate.
County's Testimony at 78. Copies of these resolutions are appended to the County's Testimony as Attachment 15; a representative copy of the bus driver statements is Attachment 12 to the testimony.
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the weight to be afforded the objected-to testimony. At this time, however, LILCO's motion to strike the referenced testimony is unfounded, and should be denied.
C. The County's Witnesses Are Qualified to Testify as to Their Understandina of Role Conflict LILCO moves to strike substantial portions of the County's Testimony, on the basis that the witnesses do not possess the requisite expertise to testify regarding their understanding of role conflict. LILCO's Motion at 15-16. Specifically, LILCO moves to strike testimony appearing on pages 32, 44-47, 48, 52-53, 58, and 79. Id. at 16.
In LILCO's view, the County's witnesses are incompetent to testify about their understanding of role conflict because:
"(alny credible ' role conflict' testimony sponsored by these witnesses could only be based on their personal knowledge and experience, but no such testimony is presented. Nor could it be; Suffolk County l has admitted that no such evidence of role l conflict exists."
LILCO's Motion at 16. LILCO is wrong, and seriously misleads i
i this Board by its representations. As LILCO well knows, during depositions taken by counsel for LILCO, at least four of the County's witnesses testified as to their personal knowledge of bus drivers experiencing role conflict.18/
18/ Egg Deposition of Bruce G. Brodsky (February 24, 1988), at (footnote continued)
Moreover, the County's witnesses are familiar with the surveys that have been conducted by Professor Stephen Cole regarding role conflict, having reviewed the firemen and bus driver surveys he conducted in 1982 and in 1988. Further, Dr.
Koenig teaches courses involving the study of role conflict at both New York University and Long Island University. Thus, the County's witnesses are well-versed on the subject of role conflict, and are competent to discuss this subject in their testimony. LILCO, of course, is free to probe on cross-examination the depths of the witnesses' understanding of role conflict. There is no basis for striking the witnesses' testimony at this time, however, and LILCO's attempt to do so should be rejected.
D. The County's Witnesses Are Qualified to Offer Testimony Recardino the Bus Driver Statements LILCO also moves to strike all references in the County's Testimony to statements signed by 255 bus drivers attesting to l
the fact that the signatories would attend to the needs of their families in the event of a Shoreham emergency, rather than report to drive buses.19/ LILCO premises its attempt to strike this l
(footnote continued from previous page) 47-50; Deposition of Anthony R. Rossi (February 18, 1988), at 91-93; Deposition of Richard N. Suprina (February 25, 1988), at 54-57; Deposition of Nick F. Muto (February 29, 1988), at 13-14, 65-66.
19/ Specifically, LILCO moves to strike testimony appearing on pages 45-47 and 79, as well as Attachment 12 to the County's Testimony.
testimony on its claim that none of the County's witnesses "can swear to the origin or reliability of the ' bus driver
. statements'." LILCO's Motion at 13. However, as LILCO was informed by the County during discovery, these statements were distributed at the school bus yards by members of the public, and delivered to counsel for the County.22/ Should LILCO question the reliability of these statements, Transportation Directors such as Mr. Rossi or Mr. Doherty can be examined at trial regarding their recollection of the distribution of these statements at their bus yards, and the'r knowledge of the drivers from their respective school districts who signed the statements. ,
Furthermore, the school bus driver statements are no less reliable or relevant to the issues involved in this proceeding than are the survey documents presented by LILCO through its witness, Mr. Kelly.21/ The County does not know the names of those persons surveyed under the direction of Mr. Kelly, or even the names of those persons who conducted each survey. Moreover, Mr. Kelly has pruportedly surveyed emergency workers at 19 non-radiological emergencies. Clearly, the link between 19 non-radiological emergencies and the matters before this Board is far 2Q/ Egg Suffolk County's Answers to LILCO's Fifth Set of Interrogatories and Requests for Production of Documents Regarding Role Conflict of School Bus Drivers, dated February 27, 1988.
21/ Egg LILCO Testimony at 27-32.
more tenuous than that of the signed statements of Suffolk County school bus drivers and the issue of their availability in a Shoreham emergency. LILCO is free to examir.e the County witness panel on the reliability of the bus driver statements at the hearing, after which the Board can determine the weight that should be afforded this evidence.
Moreover, if the Board wishes, the County is willing to offer the originals of all 255 statements, with the names of the individuals who signed the statements unredacted and intact for the Board to review during an in-camera inspection. The County would also consider disclosing the original statements to LILCO, provided that LILCO would agree to be bound by an appropriate protective order designed to protect the privacy of the individuals who signed the statements.
E. Dr. Brodsky, Mr. Rossi and Dr. Koenig Are Competent and Oualified to Testify in this Proceedino LILCO moves to strike the testimony of Dr. Brodsky, Mr.
Rossi and Dr. Koenig on the ground that "LILCO's school bus driver procedure does not involve the school districts of Mersrs.
Brodsky, Koenig and Rossi." LILCO's Motion at 17.
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l In fact, however, LILCO's school bus driver procedure does involve the school district of Dr. Brodsky and Mr. Rossi. Dr.
Brodsky and Mr. Rossi serve as Middle Country Board of Education member and Transportation Coordinator, respectively. LILCO previously included two of the Middle Country schools (Bicycle Path and New Lane Elementary) in its listing of EPZ schools.
Further, in Revision 9 of its Plan, LILCO refers to Middle Country as having children who reside within the EPZ, for which some protective action must be taken other than returning the children to their homes in the event of an emergency. OPIP 3.6.5, Att. 3. Moreover, as recently as this January, the Middle l Country School District received a letter from LILCO explaining LILCO's new school proposal and advising the school district of the protective actions LILCO would recommend for the Middle Country student population in the event of an emergency. Thus, despite LILCO's assertions to the contrary, LILCO's new school propoect and the LILCO Plan involve the Middle Country schools. ,
4 Further, as made clear by the County's Testimony, Middle Country is responsible for the safe transportation of 891 private and parochial students, many of whom attend EPZ schools. LILCO's new school proposal obviously affects these Middle Country children as well.
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0 In addition, Mr. Rossi, the Transportation Coordinator for the Middle Country School District for the past 15 years, is also the President of the Suffolk County Chapter of the New York Association for Pupil Transportation. County's Testimony at 3.
As President of this Association, Mr. Rossi is familiar with all school bus driver training requirements and school bus safety requirements. He is also familiar with the bus and driver operations of all Suffolk County school districts and the positions these districts have taken regarding LILCO's new school evacuation proposal. Mr. Rossi thus brings considerable knowledge and experience to this proceeding.
Dr. Koenig also brings invaluable knowledge and experience to this proceeding. Dr. Koenig is an active member of the Nassau-Suffolk School Boards Association; his membership in this Association assures his familiarity with the positions taken by Suffolk County schools and EPZ schools in particular regarding LILCO's new school proposal, and Dr. Koenig testifies as to this ,
understanding. Moreover, Dr. Koenig holds a Ph.D. in educational administration and teaches courses concerning role conflict at both New York University and Long Island University; indeed, he devotes class time to the discussion of role conflict in the context of LILCO's Plan. County's Testimony at 5-5. He has also conducted a general review of the work of LILCO sociological witnesses Dennis Mileti and Michael Lindell, and he is familiar
o with the work of Suffolk County witness Stephen Cole, Alan Barton and Ralph Turner. Accordingly, Dr. Koenig is well-qualified and competent to present testimony in this proceeding.
IV. The County's Testimony Does Not Challence the NRC's Reaulations LILCO moves to strike substantial portions of the County's Testimony on the ground that the witnesses' statements that they will not' implement the LILCO Plan are contrary to the NRC's new emergency planning rule. LILCO's Motion at 19-20. In so moving, LILCO ignores pertinent testimony of the school official witnesses which explains what action they would and would not take in the event of an emergency:
Q. Gentlemen, you have made clear that you would not permit LERO drivers to transport your schoolchildren, and that you do not have enough buses to carry out an evacuation on your own, especially given likely role conflict problems. What action would you undertake to protect the safety of your schoolchildren in the event of an emergency at Shoreham requiring evacuation?
A. (All) The LILCO Plan is not workable and fails to protect the safety of schoolchildren.
Each school district has the responsibility for protecting the health and safety of its students while they are at school or being bussed to or from school. We could not and would not turn this responsibility over to LILCO.
In the interest of safety, the only option that might be available to us would be to utilize and rely upon however many of our own bus drivers and buses that would be available.
4 If only a few bus drivers reported to the schools, we might have to utilize those drivers for an evacuation to some location determined at that time, using as many multiple runs as would be necessary. In the interim, we might have to attempt to retain the schoolchildren at the schools.
This is not to suggest that sheltering presents an option preferable to evacuation.
Our buildings generally do not have basements and thus might make poor and inadequate sheltering facilit.ies. The safety risk involved, however, in allowing our schoolchildren to board buses driven by LILCO employees is one which we are not willing to bear, and we would be forced to make do with whatever options remained.
County's Testimony at 70-71.
Thus, LILCO has moved to strike a portion of the testimony wherein the witnesses explain, as precisely as possible, what actions they would take to protect their children in the event of an emergency. LILCO claims that this explanation "challenges the regulations" and is thus impermissible. This claim is absurd.
The County's Testimony makes abundantly clear what the witnesses would do, and what they would not do.- That is precisely what LILCO has been clamoring for. Accordingly, LILCO's objection to the testimony makes no sense, and should be rejected.22/
22/ In claiming that the County's Testimony challenges the NRC's new rule on utility-sponsored plans, LILCO asserts that "statement (s), without more, that LILCO's plan would not be followed flies in the face of the new rule's presumption."
LILCO's Motion at 20. The County's Testimony, however, provides ample reasons for why LILCO's new schools evacuation plan would not be followed. Indeed, the primary complaint made by LILCO in its Motion is that the County's Testimony provides reason upon reason for why LILCO's plan would not be followed, but that such reasons are barred, in LILCO's view, by the doctrine of rga (footnote continued) o e
V. Conclusion For the reasons set forth above, the Board should deny LILCO's Motion to Strike Testimony of Brodsky, et al.
Respectfully submitted E. Thomas Boyle Suffolk County Attorney Bldg. 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 Michael S. Miller Christopher M. McMurray J. Lynn Taylor Kirkpatrick & Lockhart 1800 M Street, N.W.
Washington, D.C. 20036 (202) 778-9000 Attorneys for Suffolk County J d /k62 Fabian G. Palomino Richard J. Zahnleuter Special Counsel to the Governor -
Executive Chamber, Room 229 State Capitol Albany, New York 11224 i
(footnote continued from previous page) iudicata. LILCO cannot have it both ways and, for the reasons expressed above, its assertion that the County's Testimony "flies in the face of the new rule's presumption" should be summarily rejected.
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