ML20213G149
| ML20213G149 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/13/1987 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#287-3483 OL-5, NUDOCS 8705180144 | |
| Download: ML20213G149 (191) | |
Text
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UNITED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO: 50-322-OL-5 (EP Exercise)
LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
LOCATION:
HAUPPAUGE, NEW YORK PAGES:
5874 - 6063 DATE:
WEDNESDAY, MAY 13, 1987 0/
Wml0 ACE-FEDERAL REPORTERS, INC.
q U
Official Reporters 444 North Capitol Street Washington, D.C. 20001 8705180144 870513 PDR ADOCK 05000322 (202)347-3700 T
PDR NATIONWIDE COVERAGE
91300101 5874 COrysimons
'~'s 1
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UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 5
6
X 7
In the Matter of:
LONG ISLAND LIGHTING COMPANY
- Docket No. 50-322-OL-5 8
(Shoreham Nuclear Power (EP Exercise)
Station, Unit 1) 9
X 10 Court of Claims State of New York 11 State Office Building Third Floor Courtroom 12 Veterans Memorial Highway Hauppauge, New York 11788 13
/
Wednesday May 13, 1987 14 l
The hearing in the above-entitled matter 15 l
reconvened, pursuant to notice, at 9:00 o' clock a.m.
I 16 l
BEFORE:
17 JOHN H.
FRYE, III, Chairman is Atomic Safety and Licensing Board U.
S.
Nuclear Regulatory Commission j
19 Bethesda, Maryland 20555 20 OSCAR H.
PARIS, Member Atomic Safety and Licensing Board 21 U.
S.
Nuclear Regulatory Commission Bethesda, Maryland 20555 22 FREDERICK J.
SHON, Member l
23 Atomic Safety and Licensing Board U.
S.
Nuclear Regulatory Commission 24 Bethesda, Maryland 20555 25 1
91300101 5875 marysimons l
'^
1 APPEARANCES:
.V 2
On Behalf of Long Island Lichting Company:
3 DONALD P.
IRWIN, ESQ.
KATHY E.
B.
McCLESKEY, ESQ.
4 LEE B.
ZEUGIN, ESQ.
MARCIA R.
GELMAN, ESQ.
5 Hunton & Williams 707 East Main Street 6
P.
O.
Box 1535 Richmond, Virginia 23212 7
o On Behalf of Suffolk County:
LAWRENCE COE LANPHER, ESQ.
~
9 SUSAN M.
CASEY, ESQ.
Kirkpatrick & Lockhart 10 South Lobby, 9th Floor 11 Wa hi g on D.C bO36-5891 12 On Behalf of the State of New York:
13 RICHARD J.
ZAHNLEUTER, ES'Q.
3(j Special Counsel to the Governor
s) 14 Executive Chamber Room 229 15 State Capitol Albany, New York 12224 16 On Behalf of the NRC:
17 ORESTE RUSS PIRFO, ESQ.
18 U.
S.
Nuclear Regulatory Commission 7735 Old Georgetown Road 19 Bethesda, Maryland 20814 20 On Behalf of FEMA:
21 WILLIAM R.
CUMMING, ESQ.
Federal EmergencyManagement Agency 22 500 C Street, S.W.
Washington, D.C.
20472 23 24 25
91300101 5876 marysimons i
C O
N T
E N
T S
V 2
VOIR WITNESSES:
DIRECT CROSS REDIRECT RECROSS DIRE EOARD 3
(Panel of Witnesses) 4 DENNIS M BEHR CHARLES A.
DAVERIO 5
JOHN W.
HOCKERT 5961 5980 6
7 EXHIBITS 8
9 LILCO Exercise Exhibit IDENTIFIED ADMITED No. 12 5962 5968,
10 11 12 RECESSES c
Morning Recess 5938 Lunch Recess 5996 i -'
13 Afternoon Recess 6053 14 15 16 17 18 19 20 21 22 23 24 25
!O
91300101 5877 Cuewalsh PROCEEDINGS fx j-V (9:00 a.m.).
2 JUDGE FRYE:
Good morning.
I believe we are all 3
here.
Should we take up the County motion to strike LILCO 4
5 testimony first?
And, we would like to get LILCO's response to 6
the first point they make with regard to the reliance on the 7
draft FEMA documents.
8 MR. IRWIN:
Thank you, Judge Frye, members of 9
the Board.
I will try to be brief because I don't want to 10 ji cut unnecessarily into Mr. Lanpher's time.
I think the argument that is made in the 12 County's motion on references to draft documents -- and by 13 these I understand particularly Guidance Memo'17, Revision 1
~
g and Guidance Memo EX-3 -- go to the weight to be accorded 15 em and not to Geh relevance or oder bases of 16 admissibility.
37 In dealing with the concept of a full 18 participation exercise, we have got an inherently judgmental j9 and interpretative term rather than one which has 20 Prescriptive bounds laid out by a set regulation.
We have 21 guidance being offered by an Agency which is, although 22 expert, a consultant to the ultimate decision-maker.
23 Namely, FEMA is the consultant; the NRC is the decision-24 maker.
And, you have exercises, each one of which differs 25 O
91300101 5878 cuewalsh I
r, 1
in detail from every other.
O 2
Each one of these documents, it was authored by 3
experts, it has gone through normal -- some degree, at 4
least, of normal peer review process, and it has been 5
published, at least, for comment.
6 My basic point is -- and, further more all of 7
them are quite similar in content.
They differ a little bit 8
in nuance, in methodology, and occasionally nuance in 9
detail.
There are three or four out of some 35 or 36 or 34, io depending on how you count them, criteria which tend to 11 migrate in and out from one document to another.
12 But, there is a great deal of continuing 13 consistency to them.
The only real structural aspect in
.,.-i, d,_)
ja which one 's document dif f ers f rbm another -- and here really it's EX-3 that differs from the others -- is that document 15 16 tends to put a hierarchy on them.
It tends to reflect a 17 consensus of at least the authors that some exercise 18 criteria are more central to the evaluator process than others.
39 20 LILCO believes that in this area, which is 21 inherently interpretative and judgmental and reflects 22 consisting consensuses or more balances of opinion, and where there is no, frankly, established true view or 23 24 prescriptive regulation that answers all questions, all of 25 these documents are useful in assessing what can reasonably I(^;
V l
l 91300101 5879 Cuewalsh be understood to be a full participation exercise.
,e i
U 2
And the case which suffolk County cites, namely the Catawba decision, in which a Licensing Board rejected 3
the conclusion of the Staff draft citing study as against 4
the prescriptive regulations of Part 100 is distinguishable 5
for exactly the reason that I just outlined.
The Licensing 6
Board held, and the Appeal Board held, that the Part 100 7
citing criteria were, in fact, the accepted criterion, that g
they were sufficiently specific, that the Staff draft study 9
unless it were given further dignity by the Commission 10 in should not govern.
Here you have less than certain criteria.
You 12 have two agencies involved, and you have an inherently i3
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judgmental situation.
That's why we believe that --
ja JUDGE FRYE:
So you think that would be -- they 15 are useful in determining whether the exercise tested as g
much of the emergency plan as is reasonable achievable 37 without mandatory public participation?
ig MR. IRWIN:
Yes, sir.
They helped shed light on 39 what a continuing body of expert judgment thinks goes into 20 that -- into bounding -- first of all, bounding what all not 21 nly could be in an exercise but also to some extent 22 prioritizing it.
We will come up -- and, the question of 23 prioritizing, that will come up again in the question of the 24 IEAL study.
25
91300101 5880 cuewalsh I
c 1
But, since it is clear that FEMA does not expect 2
every aspect of its criteria to be tested every time, it's 3
important to find out what they think, how consistent the 4
criteria are, and whether they in fact think that some tend 5
to be more important than others.
6 That's the value of these studies, because there 7
is nothing more definitive anyway.
8 JUDGE FRyE:
So, why don't you address the IEAL 9
study?
If you think that the IEAL study is also in the same io category, why don't we pick that up as well?
11 MR. IRWIN:
I will be glad to.
The IEAL study 12 is in a slightly -- it is a slightly different kind of document.
It is in the form of a questionnaire, and a i3
.g R) ja relatively structured one, sent out by a consulting firm in 15 a study prepared by a man who has expertise in emergency 16 planning and addressed to a number of experts in emergency 17 planning, in the federal government, in the state is governments, local governments, and to some extent in the 19 private sector.
But, mostly in federal, state and local 20 governments, asking them to rank the importance of emergency 21 planning exercise criteria.
22 The study was sponsored by or prepared for the 23 Edison Electric Institute, the utility industry trade 24 association.
But, that doesn't necessarily invalidate its contents.
It is worth what it is worth.
And, it is a body 25
[
91300101 5881 Cuewalsh i
again of expert-judgments which reflect the concerns of k'
2 emergency planners, most of whom are in government and 3
responsible forms of emergency plann$ng.
So, it tends to suggest the consensus or 4
5 coalitions of opinion among a significant body of experts in the field, where again there is no absolute prescriptive 6
7 judgment.
JUDGE FRYE:
I guess the problem we have is that 8
we don't see that particular study and perhaps these FEMA 9
10 Guidance Memoranda as going directly to the issue that has ti to be decided as it's defined in the regulations which is, as I read it, whether as much of the plan was tested as is 12 reasonably achievable without mandatory public 13 participation.
y And, then if you look at the footnote it talks 15 in terms of testing enough to verify the capability to 16 respond to the accident scenario.
And, while these p
f particular studies and whatnot may talk in terms of what is 18 important relative to other factors, relative importance of j9 various elements of plans that are tested and so on, they 20 don't seem to go directly to this.
21 MR. IRWIN:
Well, nothing does, Judge Frye.
I 22 mean, if you want to put it to a straight line test you had 23 better knock out everything.
But, you can't do that, 24 f
The regulation, 10 CFR Part 50, Appendix E that 25 O
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91300101 5882 Curwalsh e~f i
you just read me a portion of, is anything but self-V 2
explanatory.
It doesn't list a single one of the criteria.
3 It doesn,'t list a single NUREG criterion or exercise 4
criterion.
.5 You have got to look at what the coordinate body 4
of expertise in this area says is important and tag that 7
along with the fact that nobody says you have to test 8
everything.
So, you've got to ask, well, what are these 9
things that they think are important; and, is there any io explicit or implicit hierarchy among them.
1:
These studies are helpful in drawing those 12 unavoidably judgmental expert conclusions.
And, there is a
- 7--
i3 reason why exercises are going to differ and why these ds)g ja studies help.
Every plant is a little different from every other.
Every exercise circumstance is a little different 15 g
from every other.
17 What you have got to do is in the context of any is individual exercise see if what was done is as good as is j9 possible, and then you stack that up against the available 20 criterion and see just whether it appears reasonable.
It i
is, I submit to you, a reasonable man test, a rule of reason 21 l
kind of test.
22 And, there is no -- there is no point in the 23 24 Board's trying to, or seeking to, avoid that.
It is 25 unavoidable, I am afraid.
That is one of the reasons this
91300101 5883 cuewalsh contention is as difficult as it is, fm i
ls,)
2 JUDGE SHON:
I take it what you are essentially 3
arguing is that phrases such as "as much of the local plans as is reasonably achievable" and " mandate the test as much 4
5 as is reasonably achievable" or "the major observable portions," that this kind of phraseology is indefinite 6
enough, judgmental enough, so that one has to look at a lot 7
f different opinions of what is reasonably achievable or 8
what is a major observable portion.
9 Is that the idea?
10 MR. IRWIN:
That's exactly it, Judge Shon.
- And, ii I suggest that these documents, particularly the ones which 12 are the focus of the dispute this morning, help elucidate 13
)
what are thought by experts to be the major ones and ones as i,
to which priority ought to be given in framing an exercise, 15 given that you can't and shouldn't try to test everyone of 16 the 34 or 35 criteria in each exercise.
37 But, that's exactly right.
18 JUDGE FRYE:
Let me move to the second point, 19 the reliance on the Staff deposit $0n testimony.
It's my 20 understanding that Staff dom tot.
ntend to present any 21 witnesses.
22 MR. PIRFO:
No, sir.
23 JUDGE FRYE:
I think it's the Board's view that 24 the Staff should present some witnesses on this particular 25 O
91300101 5884 cu;walsh i
issue.
After all, we are confronted with the issue of what xj 2
constitutes a full participation exercise, which is a 3
Provision of our regulations.
4 And, I think it would be advisable for the Staff 5
to render its opinion before we reach some sort of a 6
decision at the end of this.
Does that present any 7
Problems?
8 MR. PIRFO:
It doesn't present any problems.
9 Certainly, if the Board is requesting witnesses they will be to provided to the Board.
11 I guess the problem -- addressing the motion for 12 a moment, the problem I have with the motion to strike the j3 Staff's deposition testimony that those witnesses provided
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ja pursuant to 720.H at LILCO's request, and they were there l
essentially to state what the Staff position was.
15 Now, certainly Suffolk County -- I'm not 16 i
quarreling with Suffolk County's right to cross-examine.
37 j
is They had,that right at the deposition.
I'm not saying that f
that was good enough for purposes of the hearing, but the j9 20 Problem I have is I'm not so sure what there is to cross-examine.
21 The witnesses came forward and stated --
22
[
I designated by the EDL to state what their position was on 23 this.
That's sort of the -- how shall I put it -- end of 24 the argument on that.
I mean, they stated what the Staff 25
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91300101 5885
'cu;walsh position was.
That's the Staff position.
I mean, you can 3
ask them at trial is that really, and you can presumably 2
3 probe that.
But, I see any probing of that as being 4
irrelevant.
I mean, they have stated what the Staff 5
position is.
6 MR. IRWIN:
Well, maybe --
7 MR. FIRFO:
I mean, the Staff's position is not 8
to --
~~
9 10 11 12 7
13 ja 15 16 17 18 19 20 21 22 23 24 25 O
91300202 5886 marysimons R
1 MR. IRWIN: Maybe since I was at that deposition I e3 G
2 can add a little bit to this.
Mr. Pirfo is exactly right.
3 The staff witnesses were provided at LILCO's request 4
pursuant to regulations af ter the Board issued its order on 5
December 19th indicating its view that the staff's views 6
would be valuable.
7 LILCO of course has no power to subpoena or 8
compel or otherwise their testimony.
We requested the 9
deposition and it was authorized.
The deposition took one 10 morning and the transcript is approximately 71 pages long.
11 Of those 71 pages my examination of the staff witnesses was 12 approximately 40 pages and Ms. Letsche's is approximately 13 30.
'J-8
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14 The witnesses are experts testifying within 15 their area of expertise and their normal course of duties.
16 They were under oath.
There are all the indicia of 17 reliability, competence and straightforwardness about their 18 testimony that tends to make hearsay testimony admissible.
19 So to the extent that it is hearsay testimony, 20 it is certainly subject to lots of the exceptions to the 21 hearsay rule.
I think it is plainly admissible testimony.
22 Secondly, Suffolk County not only had the right 23 to examine these witnesses, but took it fully.
And if the 24 transcript would be of value to the Board, rather than have 25 the witnesses come up and take additional hearing time, that I
v
-91300202 5887 marysimons ey i
might be something the Board might wish to screen.
O 2
I do think it is obviously the Board's call as 3
to whether it wishes to hear further from these witnesses.
4 But I can tell you they were examined for half a day and 5
-almost as fully by the intervenors as by me and that their 6
views are fairly squarely stated in that transcript.
7 JUDGE FRYE:
Does that satisfy your objection?
8 MR. LANPHER:
Absolutely not, Judge.
9
'I disagree with the characterization, just 10 jumping to that one point, and I guess I haven't finished 11 addressing the other points in the motion.
12 Mr. Irwin mentioned the Board's December 19 l
13 order, and in that order the Board made it clear that it
)
would like to have the staff's views.
That's in a footnote 14 15 and I don't have the exact citation.
16 We fully expected that if the staff testimony or 17
" staff position" was going to come in other than in argument 18 in proposed findings, they would be provided as witnesses.
19 In a discovery deposition you don't pursue all 20 your questions.
Frankly when Mr. Pirfo say, gee, here is 21 the staff position, I don't know what people can do to 22 question it.
Well, obviously we could probe the basis for 23 that staff position.
We disagree with the staff position 24 and we disagree with things in that depesition.
25 If they want to proffer these witnesses, and we O
-91300202 5888 marysimons
<l
>"4 1
are not objecting to them coming in and perhaps they could V
2 be melded in with the FEMA panel ---
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3 JUDGE FRYE:
If they came they would have to i
4 be.,
5 MR. LANPHER:
I didn't address that.
As is 6
clear from our motion, we are not taking the position that, 7
Board, you can't consider evidence.
That is not a proper 8
position to take.
t 9
We are saying if you are going to consider 10 evidence, we have the proper right to cross-examine.
This l
11 is distinguishable from other situations perhaps where 12 depositions are relied upon, but the organization is there 13 testifying.
- I k) 14 We don't have any staff witnesses.
The cross-15 examination of FEMA ~in this case I don't think would be i-16 adequate to probe what the staff thinks because on certain i
17 issues the staff and FEMA have diverged in some views.
18 JUDGE FRYE:
Well, and I think we also indicated 19 that we didn't think FEMA was a proper -- necessarily a 20 primary, I shouldn't say proper, but necessarily a proper
}
21 source of information with regard to this particular matter, f
22 MR. LANPHER:
I think the solution the Board 23 intimated to, let's get them in here -- I mean I can pursue j
i 24 cross-examination on this, but as I made clear in here, it's 25 going to be speculative and the answers of the LILCO 1O a
_. _., _ _ _ -,.. _ _ _ _... ~. _. _ _... _. _. _ _ _ _ _ _.. _. _. _ _ _ _. _ _ _. _. _ _ _ _ _.,. ~., _ _ _ _ _ _,. _.
'913002O2 5889 marysimons pe i
witnesses are going to be speculative.
It's going to take
.Q 2
time and it's not going to be very fruitful and we think it 3
' deprives us of our rights.
4 MR. PIRFO:
The only thing the staff witnesses' 5
deposition does, however, is state what the staff's position 6
is.
I don't understand what there is to probe on that.
The
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7 staff states its' position and it's the staff's position.
8 They come in here and what can they say on cross-9 examination, that we really meant it when we stated our 10 position?
That is not the issue.
11 Whether the staff position is right or wrong is i
12 not the issue here.
The staff stated what the staff's 13 position is.
They were designated by the EDO for this
(
14 deposition and they stated what their position is.
15 The cross-examination right argument at first 16 blush has a lot of appeal.
Sure they are not here and we 4
17 can't cross-examine these folks, but the point is it's not is something in issue.
You have a right to cross-examine ---
19 JUDGE FRYE:
What do you mean it's not in 20 issue?
I don't under stand that.
21 MR. PIRFO:
I guess what I don't understand is 22 why the staff's stating what its position is is something 23 that has to be probed.
If the staff came out with a -- how i
24 should I put it -- a policy paper or an SER or any kind of 25 formal document stating what the staff position is, I don't
()
91300202 5890 marysimons
'I I
understand ---
s; 2
JUDGE FRYE:
Well, let me put this to you.
3 Suppose the staff's position is that this is a full or was a 4
full-participation exercise and we then decide it was not a 5
full-participation exercise and the staff hasn't even 6
weighed in with its point of view.
Where does that leave 7
the staff?
8 It seems to me if you want to preserve your 9
position you need to get it on the record, whatever your 10 position may be.
11 JUDGE SHON:
Even more than that, Mr. Pirfo, I 12 used to have a little sign on my desk that said there is no 13 reason for. it.
It's just our policy.
That was a joke.
i 14 (Laughter.)
15 MR. PIRFO:
Not in this case.
16 (Laughter.)
17 JUDGE SHON:
You can't really say there is no la reason for it, it's just our policy.
Don't these people 19 have a right to examine the reasons behind the policy?
l 20 MR. PIRFO:
I don't see that as an issue.
I l
21 mean the testimony presented by LILCO says this is the 22 staff' position.
It doesn't say and there are good reasons l
23 for this position.
I mean it says there are good reasons l
24 for this position in the context of other questions and 25 other answers.
(
)
I. sv l
3 91300202 5891 ccrysimons Lx i
I'm not resisting -- if the Board is requesting i
,Y 2
these witnesses and, believe me, we are more than happy to 3
provide these if it will assist the tryer of fact, the Board 4
in reaching its determination.
If you want these witnesses, 5
we'll have them here.
I'm not resisting you on that.
I'm 6
just saying that I don't understand where this cross-7 examination is going go aside, as I said earlier, putting 8
these people and did you really mean what you said at your 9
deposition, yes, and that's it, 10 MR. IRWIN:
I have one observation because my 11 only concern about the staff witnesses coming on is bounding 12 the scope of the testimony that they would give once they i3 appear.
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_j 14 I think that we have crossed the bridge that Mr.
15 Pirfo is concerned about because that deposition took half a 16 day and the staff witnesses were in fact asked the basis for 17 their position.
They were asked to compare the Shoreham 18 exercise against other exercises and it was 70 pages of i9 reasonably good expert testimony elicited with my 20 questioning and that of Ms. Letsche.
l 21 I suggest that I provide the Board copies of the l
l 22 transcript so the Board may shape whatever kind of 23 invitation or order it may wish to direct with respect to 24 the staff for further appearance.
I think it is clear that 25-there is likely to be a further appearance.
I O
I
91300202 5892 marysimons
- I 1
JUDGE FRYE:
I think the staff, and I don't want i
J 2
to be in a position of telling the staff what we want them 3
to testify to.
I think they have to make their own decision 4
with regard to that.
I do think those witnesses should be 5
in and should make a presentation, and I think their 6
presentation, or I suppose will amount to the same thing 7
that they testified to in their deposition.
8 But, nonetheless, I don't think it is for us to 9
indicate to the staff what their testimony ought to cover.
10 It's up to them, 11 MR. IRWIN:
I wasn't suggesting the substance, 12 Judge Frye.
I was simply suggesting the Board might have 13 some thoughts about its scope.
4_
14 MR. LANPHER:
Judge, Mr. Pirfo says -- well, I 15 just don't understand his argument because LILCO is 16 proffering these data about the staff as allegedly probative 17 evidence on why you, this Board has ruled that this is full-18 participation evidence.
It's not being offered as a staff 19 position.
It's being offered as supposedly probative 20 evidence in support of reaching a particular kind of 21 conclusion.
22 JUDGE FRYE:
Well, we are going to get the staff 23 witnesses in.
I would suggest it would be helpful if the 24 staff witnesses could submit in advance prepared testimony 25 so we know what it's going to be.
If you want to submit the l,,
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91300202 5893 marysimons ley i
deposition, I suppose you could do that.
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2 MR. PIRFO:
I guess I'm a little perplexed as to 4
3 the staff having made the decision not to present testimony, 4
and now we're saying to present these witnesses.
Well, if 5
you would prefer, we could submit the deposition.
I'm 6
having a little bit of trouble understanding where we are to 7
take the lead as to going beyond the deposition.
8 JUDGE FRYE:
I want to stay out of what the 9
staff witnesses come in and say.
That's none of my business j
10 until they get here and starting saying it.
We can order to 11 put some bounds on what the inquiry is going to be if the 12 staff should submit direct testimony.
I mean this is our i
13 position and we take this position because.
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l ja MR. PIRFO:
Well, that latter question is the l
l 15 question I have the problem with.
I'm not sure that is 16 relevant inquiry going into why the staff takes depositions.
17 JUDGE FRYE:
I don't see how you can avoid the is relevance of it.
i 19 MR. PIRFO:
Well, given those two ---
l 20 JUDGE FRYE:
We've got to make a decision.
We 21 have to finish and close this record and go back to writing 22 a decision.
We are going to have to address the issue, and i
23 it would be very helpful to know why the staff takes the 24 position it takes.
25
91300303 5894
' JcCWalsh I.
l MR. PIRFO:
I guess that's the part of the
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2 inquiry I'm having problems with, why the Staff -- the why 3
the Staff is taking that position inquiry.
4 JUDGE PARIS:
Well, they must have a reason or 5
reasons.
6 JUDGE FRYE:
Is it just your policy; is that it?
7 (Laughter.)
8 MR. PIRFO:
It's not my policy.
9 MR. IRWIN:
Let me suggest -- because Mr. Pirfo 10 was not, I don't recall, at that deposition.
I think the 11 transcript of that deposition illuminates a good deal of the 12 Staff's. expert basis for its conclusions.
I think it may 13 well be an easier inquiry than people may suspect, i~h f
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14 MR. PIRFO:
I'm not saying there isn't a good m
15 basis for that position.
I want to avoid a situation that 16 we are in here spending days inquiring into the --
f 17 JUDGE FRYE:
So do I.
But, I don't see any way 18 you can avoid it, giving the justification for whatever i
19 position the Staff takes.
20 MR. PIRFO:
It's just our policy.
21 (Laughter.)
22 MR. PIRFO:
Okay.
I guess we can talk later 23 about scheduling and --
24 JUDGE FRYE:
Well, it would obviously have to 25 come in in connection with the testimony in June when the f
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91300303 5895 JceWalsh
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1 FEMA witnesses are here.
So, that gives you some time, some v
2 lead time.
3 And, maybe it should follow the FEMA 4
presentation.
That probably would be good.
5 MR. ZAHNLEUTER:
Judge Frye, if LILCO still
~6 intends to submit the deposition transcript I would object 7
to that.
8 MR. IRWIN:
Well, I think that argument has just 9
been mooted.
10 JUDGE FRYE:
I think your argument has been 11 mooted, yes.
12 MR. ZAHNLEUTER:
So, there will be no submittal 13 of a transcript prior to the NRC Staff's witnesses if they D)
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14 choose to attach the transcript?
15 JUDGE FRYE:
That's right.
16 MR. PIRFO:
Maybe I missed something.
I don't 17
. understand why that's unacceptable.
18 JUDGE FRYE:
Nobody said it was unacceptable.
19 MR. PIRFO:
Well, he objected to the --
20 MR. ZAHNLEUTER:
I was just saying I objected to 21 LILCO --
22 MR. PIRFO:
Oh, I'm sorry.
I understand.
You f
23 are right.
It is moot.
I understand what he is saying 24 now.
We won't submit the transcript without the witnesses.
l 25 Okay.
l
%)
i
.l
~
~-
.~..
1.
1:
91300303 5896 JceWalsh 1
MR. LANPHER:
Judge Frye, before we move on to 2
other portions of this-motion or whatever, could I get an 3
understanding.then that -- I think, in essence, what you 4
have done, you have in fact granted our motion on Question 2 5
of Item 2, our motion, Pages 5 through half of Page 7.
6 So, I do.not need to pursue cross-examination of 7
that?
8 JUDGE FRYE:
No, because you will have the Staff 9
witnesses.
=
10 MR. IRWIN:
In other words -- let me make sure I 11 understand it.
i 12 JUDGE FRYE:
Okay.
13 MR. IRWIN:
As I understand it, the Board has 14 denied Mr. Lanpher's motion on that extent and, therefore, i
{
15 he should pursue cross-examination because we expect the 1
16 Staff witnesses, in fact, to appear later as was the case on 17 many other issues where deposition transcripts --
i i
18 JUDGE FRYE:
Well --
l 19 MR. IRWIN:
-- are being used and expert 20 testimony will be presented live later.
i 21 JUDGE FRYE:
I think the point is that if he has 22 questions with regard to the Staff position, he should ask i
23 the Staff witnesses, not the LILCO witnesses, because the --
1 l
24 MR. IRWIN:
But, that is --
25 JUDGE FRYE:
-- Staff witnesses are the ones who
!iO i
'91330303 5897
_'JcCWalsh1 i
will know.
0 2
MR. IRWIN:
But, that is exactly the situation 3
that has occurred already on several other issues and it's 4
an-issue which has arisen even on this contention with a 5
number of FEMA witnesses whom FEMA doesn't even intend to 6
present in support of its own testimony.
7 The Intervenors present in their testimony the 8
deposition testimony of numerous FEMA observers.
And, the 9
practice in this proceeding, as I understand it, has been to 10 permit such deposition testimony where it can be reasonably 11 corroborated later and is expected to be reasonably 12 corroborated later by either the deponents --
13 JUDGE FRYE:
Right.
()
14 MR. IRWIN:
-- or people in that same 15 organization.
16 JUDGE FRYE:
Right.
Right.
17 MR. IRWIN:
So, in other words, this deposition is testimony will remain in --
19 JUDGE FRYE:
Remain in your testimony, yes.
20 MR. IRWIN:
Yes, sir.
Okay.
21 JUDGE SHON:
One thing, Mr. Irwin, a detail.
22 Before we leave, as I think we are going to, the matter of 23 Mr. Hockert and the IEAL report.
24 MR. IRWIN:
Yes, sir.
25 JUDGE SHON:
You had, in your statement this O
i l
k
[
91300303 5898 JecWalsh 7
1 morning, characterized him as I think an expert on emergency 2
planning.
The matters quoted from his deposit' ion in the 3
motion to strike, in Suffolk County's motion to strike, 4
suggest that he really is not such an expert.
5 Would you like to answer that?
6 MR. IRWIN:
I absolutely would.
I had not 7
understood the scope of the Board's inquiry before to go to 8
that.
9 If one looks at other portions of his deposition 10 transcript, one will see on Pages 12 and 13 that since July 11 1983 Mr. Hockert estimates that he has spent approximately 12 45 percent of his time on emergency preparedness issues.
13 Second, that he was involved in the development 14 of the FEMA Rev 10 document.
That's the document that deals 15 with notification exercises.
That's in his deposition at 16 Page 14.
17 Third, that he prepared a draft exercise module 18 on ingestion pathway activities for the Edison Electric 19 Institute.
That's on Page 17 of his deposition.
20 Fourth, that he has conducted both an on-site 21 and an off-site review for Public Service Electric and Gas 22 Company of their emergency preparedness status for the Salem i
23 plant.
And, he also has done -- performed contact work with 24 local governments regarding public services, contact and i
25 interactions with them.
That's at Pages 20 and 21 of his
.Cl) e
91300303 5899 JceWalsh 1
deposition.
2 He also has interviewed numerous exercise 3
reports in connection wi,th his engagement at Salem as part 4
of this work.
That's on Page 26 of his deposition.
5 He has worked for Sandia Laboratory on NUREG 6
0654 type materials for emergency preparedness for special 7
nuclear material licensees.
That's on Page 22 of his 8
deposition..
9 And, he has reviewed the San Onofre emergency to plan on behalf of Southern California Edison Company with 11 regard to alert and notification systems.
That's on Page 24 12 of his deposition.
i3 In short, I think he has four years of 14 reasonably well-founded experience in this field.
- And, 15 thank you.
I'm grateful for the opportunity.
16 JUDGE FRYE:
All right.
Shall we move to the 17 LILCO motion?
18 MR. LANPHER:
Judge --
19 JUDGE FRYE:
Yes, sir.
20 MR. LANPHER:
I would like to respond briefly to 21 some of the matters that were --
22 JUDGE FRYE:
Okay.
Of the points that we raised 23 with them.
Where we haven't raised a point with them, you 24 can assume you don't need to respond.
25 MR. LANPHER:
Fine.
I would like to go back to O
91300303 5900 JceWalsh f"'l s
I the draft documents issue.
And, just briefly, the essence Q
2 of what I hear LILCO's position to be is that the draft 3
documents should be accepted into evidence and the 4
objections that we have proffered go to the weight.
5 And, repeatedly I hear that these are documents 6
prepared by FEMA, these are FEMA documents.
But, they are 7
not adopted by FEMA.
They don't present any position of 8
FEMA at this point.
There is nothing official about them.
~
9 We don't know who the experts were who prepared these 10 documents.
We don't know if they will be adopted or not.
11 So, we are into the world of speculation in 12 according any kind of weight to these documents.
It seems 13 to me that in a proceeding like this we should be, if at all II
'L/
14
-- and, by the way, I want to make it clear that I'm not 15 agreeing that any of these guidance memoranda that have been 16 relied upon by LILCO are relevant.
Our motion to strike 17 goes to these that aren't even adopted.
18 We don't see how you can be in a position of 19 according any weight to such a draft document.
20 Second, LILCO talks about how the decision on 21 Contentions 15 and 16 is an inherently judgmental and 22 interpretative exercise, and that everything that may come 23 to bear is useful in that.
Well, the bottom line is that 24 you've got to look at the regulations.
25 And, that is what has to be -- things have to be
. U' P
91300303 5901 JceWalsh
/~f 1
measured against.
And, they have made no demonstration in
%i 2
their testimony that EP-3 was adopted pursuant to an attempt 3
to interpret Appendix E of Part 50.
4 JUDGE FRYE:
Let me ask Mr. Cumming while we are 5
on this subject.
Have you had a chance to look at this 6
motion that we are discussing?
7 MR. CUMMING:
Yes, sir, I have.
8 JUDGE FRYE:
Can you offer us any guidance with 9
regard to the status of the FEMA documents in question?
10 MR. CUMMING:
GM EX-3 is expected to be adopted 11 by October 1st, 1987 substantially unchanged, as I 12 understand it.
All GM's go through a joint clearance 13 process with the Nuclear Regulatory Commission and are, in
(~'%
(_/
14 fact, concurred in by them.
15 I think that may be what's transpiring right 16 now.
17 JUDGE FRYE:
Are these sort of like regulatory 18 guides so far as NRC is concerned?
19 MR. CUMMING:
May I make one brief comment?
20 Historically, FEMA, based on information received from the 21 Nuclear Regulatory Commission Staff, analogized these to 22 regulatory guides.
And, FEMA is in the process of 23 conforming, including notice requirements and other things, 24 to the stylistic method by which NRC conforms its regulatory 25 guides to its appropriate procedures.
O v
.91300303 5902 Jo;Walsh I
'"N I
And, FEMA will conform with that.
\\_)
2
' JUDGE SHON:
The regulatory guides have a 3
certain and rather specific force.
Mr. Pirfo can correct me 4
if I'm wrong, but in general if a licensee complies with the 5
regulatory guide he is essentially assured of an okay by the 6
Staff.
That doesn't mean that he has to comply with it 7
because he may find other ways to get the Staff's agreement.
8 But, he does have virtually that guarantee that
~
9 the Staff will okay it if the guide is complied with.
Do 10 these guidance memoranda have that same force?
11 MR. CUMMING:
FEMA is fully aware of that 12 interpretation and, in fact, has adopted the same for its 13 own use.
i A--
14 JUDGE SHON:
Thank you.
15 16 17 18 19 20 21 22 23 24 25 RD
91303404 5903 cuewalsh y
Qs i
JUDGE SHON:
The draft memorandum mentioned 1
2 Draft Revision 1 to GM-17.
Is that also still in draft?
3 MR. CUMMING:
That is correct.
4 MR. ZAHNLEUTER:
I would like to briefly add the 5
State of New York's additional comments.
6 Concerning the draft FEMA' reports, I think by 7
definition the draft has no weight, especially when that 8
draft has not been made into a final.
And, if the draft did 9
have weight then the draft would be the final.
And, that's 10 impossible; it's not logical.
11 Regarding the Hockert report, there is no 12 evidence that that report was prepared as a means to define 13 what's in Appendix E.
And, that's the relevant criteria.
14 Anything that is not related to Appendix E is not relevant.
15 Also, with regard to Mr. Hockert's expertise, 16 the point is that he's not an expert in emergency planning 17 objectives for exercises, not necessarily that he's an la expert in emergency planning.
But, it's the element of the 19 objectives that's important in his expertise.
20 JUDGE FRYE:
Mr. Pirfo, do you agree with Mr.
21 Cumming's description of the guidance memorandum?
22 MR. PIRFO:
I have no reason to disagree.
I 23 haven't asked that question specifically of the Staff.
I 24 really don't know what the status of these guidance 25 memorandum are.
l
91300404 5904 cuewalsh
'I 1
JUDGE FRYE:
But, it will ultimately be, in a
2 essence, a regulatory guide, do you believe or not?
3 MR. PIRFO:
That's -- if I had to choose yes or 4
no, I would choose yes at this point.
But, there may be 5
nuances that I'm not aware of, and I am going to have to 6
talk to the Staff about them.
7 JUDGE SHON:
I guess though that here these are a
not and cannot be accorded the dignity of regulatory guides 9
or guidance memoranda or anything, because they have not to gone through the entire process yet.
11 So, the question that I think that I would like 12 to have everyone address really is where, as here, as Mr.
13 Irwin has pointed out, the regulations and the regulatory 7,)
C
14 guides and memoranda and all that sort of thing are not as 15 yet completely crystallized.
There are no bright lines.
16 Is it good, bad or indifferent for us to 17 consider the argumentations and even then the bickerings of 18 experts who are attempting to formulate such guidelines?
19 Is that not the best that there is, that as it 20 may be?
21 MR. PIRFO:
Well, I think it's certainly 22 relevant and that would go to whether it should be stricken 23 or not.
I mean, any argument that it's good, bad or 24 indifferent, as you put it, goes to weight.
And that's, of 25 course, not a basis for striking.
p'
.L 1
=..
91300404 5905 cuewalsh Erw 1
At this point, I simply can't address the ty -
2 question of whether it has gone through the whole. process or 3
not, the entire process.
I'm not sure what the entire 4
process is.
I will have to find out where it is and then 5
what dignity, as you put-it, would be accorded this.
6 JUDGE FRYE:
Normally, the regulatory guides are 7
issued for comment, are they not?
8 MR. PIRFO:
Yes, sir.
9 JUDGE FRYE:
That's what I thought.
And, then 10 after the comments are received Staff adopts them or not, as 11 appropriate.
12 JUDGE SHON:
But, nonetheless, absent real 4
13 regulatory guidance, these represent what the regulators are 14 thinking about at least.
15 MR. PIRFO:
Well, certainly it's clearly 16 relevant.
I mean, there is no -- the Staff, at least, is 1
17 not arguing that these are -- they are drafts.
There is no is question that they are drafts.
I 19 But, they are the thinking on the matter, as you 20 said.
And, any argument that they are drafts in this case 21 goes to weight but not to whether they are --
l 22 JUDGE SHON:
What about that, Mr. Lanpher?
23 MR. LANPHER:
Judge, I think we are getting into 24 a world of speculation frankly with your latest question, 25 whether this is what the regulators were thinking or not
(
5 l
91300404 5906 cuewalsh
' I
,'")
I thinking.
Frankly, that's some of the stuff that I'm
%)
2 intending to probe in my cross-examination, what are the 3
regulators thinking or not thinking, what do these pieces of 4
paper mean, assuming that they are admitted into evidence.
5 Our objection goes much more fundamentally, that 6
when you have a draft document it is inherently unreliable 7
until it has been adopted by an official agency, this kind 8
of a thing.
9 But, one of your questions I think does merit 10 follow-up.
It was something along the lines, Judge Shon, 11 that where you have a regulation that's a bit fuzzy or that 12 you think is a bit fuzzy, isn't it useful to have everyone i
13 in here talking about it, what they think.
you are going to 14 have to make that judgment yourselves.
15 My instinctive feeling, and my client's feeling, 16 is the answer is no.
In that situation, you look at the 17 regulations themselves, you look at what guidance has been la adopted.
But, most fundamentally, given the plain words of 19 the regulations, you have to assess what happened at 20 Shoreham, what was demonstrated at Shoreham.
Was it as much 21 as reasonably achievable?
Did these constitute the major 22 observable portions of the plan?
l 23 By the way, earlier you raised an issue, Judge 24 Shon, I believe along the lines of, well, can't these help 25 us to define what the major observable portions are.
I
913*0404 5907 Cuewalsh i
don't think that there is a dispute over what the major 2
observable portions are.
I believe that's really not the 3
issue.
4 I think more of an issue is the belief of some 5
of our opponents that while you may have a bunch of major 6
observable portions that it is acceptable under Appendix E, 7
Section 4.F.1 to look at those major observable portions a
over a period of time of approximately six years.
It used 9
to be five years; now it's six years.
10 That's where the dispute is.
It's not over what 11 are the major observable portions.
12 JUDGE FRYE:
Do you agree with that?
13 MR. IRWIN:
I. don't.
If Mr. Lanpher is saying
(
14 he believes that every major observable portion of a plan 15 has to be tested every year, no, I don't agree with him on to that.
17 JUDGE FRYE:
Well, he --
is MR. LANPHER:
That's not my --
19 JUDGE FRYE:
is saying that there is no 20 dispute as to what the major observable portions are.
Is gi that so?
22 MR. IRWIN:
If Mr. Lanpher agrees with me that 23 the major observable portions tend to be set out in the 24 expert guidance memoranda that we are trying to have 25 admitted, then we have no dispute.
O
91300404 5908 Cuewalsh i
1 (Laughter.)
2 MR. LANPHER:
Well, the LILCO testimony relies 3
on FEMA's testimony, Judge, which says that the major 4
observable portions are the objectives set forth in PR-1, 5
which we have not moved yet to strike.
6 And, that's the basis for my statement.
I'm not 7
trying to be cute on this.
I don't --
8 JUDGE FRYE:
No.
I didn't think you were.
9 MR. LANPHER:
I don't think we have a dispute in 10 those arens, what are the major observable portions.
And, I 11 think it is inherently a factual matter, not a matter that 12 any of these guidance memoranda help you frankly.
13 Did they exercise as much as was reasonably 14 achievable?
Those guidance memos don't say word Boo about 15 that.
If you will please review them, you will see that.
16 They don't go to that issue.
And, I think those 17 are the --
18 JUDGE FRYE:
Well, that's what I -- that was my 19 supposition, that they didn't.
20 MR. LANPHER:
They just don't address that.
21 And, so I have -- the whole way LILCO characterizes the 22 issue, I otrongly disagree with it.
23 Again, some of this has to wait for cross-24 examination I think to be fair.
But, when you were talking 25 about these two draft documents, you are even farther away
91300404 5909 cuewalsh.
i from the relevance.
And, how you could possibly accord' 2
weight to these documents, I just don't understand.
3 I think you are into a world of speculation and 4
that --
5 JUDGE FRYE:
It just occurred to me that if 6
there was substantial -- let me put it this way, a 7
substantial lack of disagreement is probably a better word 8
for it --
9 (Laughter.)
to MR. LANPHER:
There has never been.
11 JUDGE FRYE:
I don't think there -- to my 12 knowledge and from everything I've heard, there has never 13 been.
But, I would be amazed.
(
14 But,. in any event, if that were to occur as to is what the major observable things are in an exercise, or that 16 are to be exercised, that might go a long way toward 17 simplifying the inquiry that we have to make.
is If, in fact, you are correct, Mr. Lanpher, that 19 the major dispute is as to how often and over what time 20 frame do those things have to be demonstrated in an 21 exercise, then --
22 MR. LANPHER:
And, were they, in fact, 23 demonstrated at Shoreham.
24 JUDGE FRYE:
Well, that's a whole different 25 thing, it seems to me.
91300404 5910
.Cuewalsh R
e";
1 MR. LANPHER:
Well, were attempted to be
%-)
2 demonstrated.
3 JUDGE FRYE:
Yeah.
All we are talking about now 4
is whether they attempted to demonstrate them.
You know, 5
the rest of the case will go to whether or not they were 6
demonstrated.
7 I think it would narrow this considerably.
8 MR. IRWIN:
I agree, Judge Frye.
And, the i'
9 difficulty is that the regulations on their face, the NRC's 10 regulations, don't help in the characterization of what 11 these observable portions are.
12 These documents which are used by FEMA and 13 concurred in over time by the NRC -- and, by the way, which ku/
14 the NRC witnesses in their depositions testified they were 15 familiar with and used and which were used by the RAC 16 process, those documents do help define that.
17 And, in the absence of anything more concrete, 18 contrast the Catawba case, they are the best you've got and 19 you've got to use them.
Otherwise, you are just flying 20 blind.
21 MR. CUMMING:
Judge Frye, if I may make two 22 brief comments.
23 JUDGE FRYE:
Yes.
24 MR. CUMMING:
One with respect to a point of 25 Judge Shon's.
I('T
.o
91300404 5911 Cuewalsh em i
JUDGE FRYE:
Well, let me finish.this point if 2
you are going to -- if we are going to change.
I would like 3
to pursue this for a moment.
4 Do you -- what's your basis for having said that 5
you don't think there is a major dispute with regard to what 6
the major observables are?
7 MR. LANPHER:
Let me get out my cross here.
I 8
will direct you to -- just one moment.
9 JUDGE FRYE:
Sure.
ic i MR. LANPHER:
Well, without being specific on 11 the tastimony, I believe the LILCO witnesues, in essence, 12 state that the 35 or 36 objectives of PR-1 set forth a major i3 observable portion.
(
14 JUDGE FRYE:
Okay.
15 MR. LANPHER:
All right.
I guess when I say 16 that I don't think there is a major dispute, it's not a 17 major dispute in finding out what LILCO believes are the 18 major observable portions.
We will not stipulate 19 necessarily that thore are the only major observable 20 portions.
21 For instance, public education is not -- the 22 brochure issue, so to speak, is not one of the standard 23 objectives in PR-1.
It is an objective that has been more 24 or less standard in Region II of FEMA.
And, you will 25 probably hear more about that later.
O
.m-
---.,.r
1 91300404 5912 cu walsh I' -
1 But, in terms -- I' guess my real point is, I f^3 t /.
2 don't think that that is going to be a difficult issue for 3
the Board to resolve, what are the things that have to be 4
looked at.
You may have to decide is the brochure a major 5
observable portion or not.
6 JUDGE FRYE:
So, there may be some small 7
disputes --
~
8 MR. LANPHER:
There may be some small disputes, 9
but I don't think personally that's the big issue in this.
10 JUDGE FRYE:
Okay.
-11 MR. LANPHER:
I can't stipulate on the record at 12 this time that the PR-1, 35 or 36 objectives, are, in fact, 13 the sum total and all of the major observable portions, just L
14
'as I guess Mr. Irwin pointed out that, you know, exercises 15 differ somewhat and. plans differ somewhat.
16 And, obviously this is the first ever utility 17 plan.
There may be some portions or major observable la portions for this plan that wouldn't be in other plans.
So, 19 things have to be tailored.
20 But, if you are looking at it in a theoretical 21 point of view I don't think there is a big dispute there.
22 We've got some other big disputes, but not on that.
23 MR. IRWIN:
My qualifications -- I would have 24 the same kind of qualifications as Mr. Lanpher but in the 25 other direction.
I am not ready to concede that all of the
91300404 5913 cuewalsh 1
34, 35 or 36 areas which are observable are casssifiable as 2
major.
I 3
One of the functions of EX-3 was to develop an 4
extra hierarchy within.those so that you would have certain f
l 5
core things which presumptively ought to be observed every 6
time and the balance which should be observed as many:as 7
feasible but seeing to it that the balance were all observed f
8 over the period of five or six years.
That's the kind of 9
differences of view that we have.
1 10 And, I think it's a subtle one but it's a pretty 11 important one.
So, I'm not ready to say with Mr. Lanpher 12 that we don't have any major potential disagreements.
I j3 think we are going to have to see.
}"
14 None of the FEMA guidance documents, even the 15 ones that Mr. Lanpher doesn't quarrel with admitting,.say 1
- 16 that you have to observe or exercise everyone of the 34 or 17 35 or 36 items-every time.
And, what is emerging through is the course of the evolution of these documents and 19 experience with exercises, as we understand FEMA and other 20 experts' views, is that there is a consensus that there are 21 certain core ones.
22' And, we will stipulate that those are major.
I 23 They are perhaps the 13 that are in EX-3.
There are others l
24 which you obviously include to the extent you can, and over 25 a period of five or six years you clearly are supposed to I
I 4
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91300404 5914 Cuewalsh
['~)'l r
I include all 35 or 36.
2 That is the structure, as I see it, observing.
3 But, I'm not an expert.
I just read the documents and 4
listen-to my witnesses.
5 So, there are differences in view.
Mr. Lanpher 6
says the public education, although not a feature of the 7
national guidance document, is maybe a matter stressed in 8
Region II.
Well, that's conceivable.
~~
9 So, I think there is some play on both sides.
10 That doesn't --
11 JUDGE FRYE:
But, there seems to be a good deal 12 of overlap.
13 MR. IRWIN:
There is a lot of overlap, and it 14 suggests that you should use the available documents, all of 15 which do have large overlap in themselves.
I mean, 34, 35 16 or 36 ain't bad congruence for four or five evolutions of a 17 document.
18 MR. CUMMING:
Judge Frye, I find my comments are 19 actually --
00 JUDGE FRYE:
Sure.
21 MR. CUMMING:
-- more related to this than 22 perhaps you anticipated.
23 JUDGE FRYE:
Sure.
24 MR. CUMMING:
With respect to one of Judge 25 Shon's previous questions, in fact, one of the reasons that I
,.a
91300404 5915 cuswalsh I
documents go out in draft from FEMA, although they do not go 2
through a full public comment but they are expected to in 3
the future, is that state governments have, in fact, been 4
given a full opportunity to comment on drafts; and, in fact, 5
that's how, in fact, documents have become available in many 6
cases in the draft stage to the public.
7 In fact, we did have some questions as to why 8
utilities were not given an opportunity to comment, because 9
of -- it was because of the past practice that the FEMA 10 focus was on state and local emergency plans.
11 Going onto that, it should be no secret to the 12 Board that FEMA as a long standing practice been on record 13 with respect to the difference between its so-called interim
.O
(_/
14 findings under the MOU and its formal 350 process, which is 15 a process of checking compliance with all criteria of the l
16 NUREG.
And, even the NUREG itself under some decision law l
17 of the NRC, including most recently ALAB 855, there was a 18 question as to what dignity would be given the NUREG much i9 less the GM.
20 If I may just briefly -- and I think it will 21 help the Board understand the focus of what I'm talking 22 about -- cite from a paragraph from a letter that went to 23 the Ceneral Accounting Office on November 28th, 1983, and 24 it's incorporated in a report of August 1st, 1984 called 25 "Further Actions Needed to Improve Emergency Preparedness O
91300404 5916 curwalsh' 7Tl 1
Around Nuclear Power Plants."
The quote is relevant to this
'2 discussion.
3 JUDGE FRYE:
This is a letter from FEMA?
4 MR. CUMMING:
This is a letter from General 5
Guiffrida, then the Director of FEMA, to Dexter Peach of the 6
General Accounting Office.
" FEMA concurs with your general 7
assessment of the Agency's radiological emergency 4
8 preparedness REP program that 'although progress has been I-9 made since the Three Mile Island accident, GAO believes more 10 can and should be done.'
Indeed, FEMA has already addressed 11 and has taken action on most of the concerns raised in this 12 report.
With regard to the GAO's assessment of specific 13 aspects of the REP program, fundamental differences exist la between our respective evaluations of this program.
First-15 of all, the GAO advocates that the Nuclear Regulatory 16 Commission, NRC, not issue operating licenses to utilities 17 until off-site planning and preparedness is evaluated and 18 determined to be in compliance with virtually all the 19 criteria of NUREG 0654/ FEMA-Rev 1.
This expectation does 20 not represent a day-to-day operational objective of the REP 21 program nor the NRC's licensing actions.
While FEMA desires 22 the fullest possible compliance from state and local 23 governments, our objective is to foster the development and l
l 24 enhancement of radiological emergency planning and 25 Preparedness as fully and rapidly as possible within the c
i:
l
-91300404 5917
{_
cuswalsh i
. "~ -
1 constraints of federal, state and local capabilities and l
1
\\
l 2
resources.
Specifically, our objective is to make-l 3
determinations on the adequacy of off-site preparedness on 4
4 the basis of reasonable assurance, not absolute certainty."
5 The point of quoting that paragraph is that 6
there is unfortunately a task before this Board, and that is 7
that you have to analogize to a system of FEMA's to make it 8
pertinent to the NRC regulatory scheme.
They are two 9
different regulatory schemes.
10 The-full 350 process goes on.
In fact, I 11 believe 60 of the 80 operating plants have had a formal 12 finding at this point.
The rest are expected to be 13 completed by the end of 1988.
They are, in fact, operating 14 plants.
15 FEMA is not expert on NRC's regulation, and this a
Board has ruled in its Order that we cannot determine what a 17 full participation exercise is.
However, in the context of 18 that I would bring to the attention of the Board an Order 19 which was issued CLI86-14 originally on January 30th, 1986, 20 which the full Commission talked about the scope of the 21 exercise.
And, I'm going to hand out a copy of that because 22
-I've marked several pages.
23 24
(
25 a
. O i
~~
_ -, -, -,.... -,, _,,, _ _ _ ~,
..__.,m_
.,..___________,_,...___,___,,,_.,_,_._,,.__..m__
m
91300000 5918 marysimons R
(A document was distributed by Mr. Cumming.)
,fS i
\\)
2 MR. CUMMING:
I realize this has already been 3
reported, but I do not have the citation, the NRC citation 4
at hand.
5 If the Board would direct its attention to the 6
top of page 4, I've underlined the phrase "the only elements 7
of LILCO's emergency plan which will be tested are those 8
that LILCO may lawfully do on its own."
9 FEMA has deferred to the expertise of this Board jo with respect to where the restrictions on LILCO were with n
respect to legal authority.
If it cognizant of both the 12 developments in the State and the Federal Courts, but does not believe that those are determinative.
13 L( )
FEMA has continued to highlight or annotate ja 15 elements that could be tested or might be affected by the 16 legal authority issues.
i7 That is for this Board to decide, and I would is respectfully request that our witnesses not be questioned on what their analysis of legal authority is when they 39 20 eventually come on the stand, the reason being they are not 21 lawyers and they are not in fact competent to reach legal conclusions.
22 23 On page 5 again another issue that interrelates 24 to the scope of the exercise is another paragraph of phrase 25 I've underlined that states "In order to test LILCO's
.O
91300000 5919 corysimons planned response to ad hoc governmental participation in an 3
2 actual emergency and to add wore realism to the exercise, 3
federal employees will play the role of such officials during the exercise.
Through this role playing, the NRC is 4
5 attempting to evaluate LERO's capability (1) to accommodate 6
the presence of State and local officials, (2) to support 7
those officials using the resources available through LERO and (3) to provide those officials with sufficient 8
9 information to carry out their state and county 10 responsibilities.
These ' actors,' however, will be ij instructed not to play decision-making roles, not to assume 12 any command and control authority and not to interact with 33 members of the public so as to lead anyone to believe that ja they are actually county officials and not to actually 15 perform any state or local functions exclusively reserved to 16 state or county officials by state or county laws" 37 The reason I'm refreshing your memory with 18 respect to this order is because it does deal with the fact that there is a highly legal aspect to your determinations 19 with respect to both evidence and conclusions on Contentions 20 15 and 16, 21 And FEMA believes that in fact the evidence put 22 f rth should in fact be directed to illuminating the Board 23 24 n that scope issue in that way.
JUDGE FRYE:
We'll move to the LILCO motion to 25 3
7 y,,_,
91300000 5920 carysimons
?-f i
strike.
LJ 2
MR. LANPHER:
Judge, can I say on brief thing in 3
tongue,and cheek I guess thanks to Mr. Cumming, and maybe I 4
should move for admission now of Contentions EX-1 through 5
14, but I guess you probably don't want to reconsider.
6 (Laughter.)
7 JUDGE FRYE:
I don't think so at this point.
g MR. LANPHER:
We haven't gotten those, Judge.
9 JUDGE FRYE:
I'm sure you haven't.
jo MR. LANPHER:
Mr. Cumming makes one good point.
11 FEMA is not an expert on the NRC reg.
12 JUDGE FRYE:
He said that a long time ago.
g MR. LANPHER:
You said that and he's just
- f _q 1_)
repeated that all these guidance memoranda of FEMA are being ja 15 offered as something probative on NRC regs.
How they can be 16 probative or have any weight on NRC regulations when FEMA's 37 counsel and you have already ruled yourselves that FEMA 18 doesn't have that expertise, I don't understand the relevance.
39 20 JUDGE FRYE:
Well, we made our ruling and I don't want to take the time to pull it out.
We made our 21 22 ruling largely in response to Mr. Cumming's concern that 23 FEMA was being put on the spot on that particular issue and we didn't think that FEMA should be put on the spot.
24 Let me move to the LILCO motion to strike and 25 D.
91300000 5921 cnrysimons j
ask you if you would address the first point with regard to bq 2
the qualification of witnesses.
3 MR. LANPHER:
Just one moment and let me 4
rearrange a couple of things here.
5 I would just like to say at the outset that I 6
have received this morning the NRC staff response to the motion to strike.
Apparently it was delivered to Mr. Miller 7
yesterday up here.
g 9
MR. PIRFO:
It was served on May lith as is noted.
I gave Mr. Miller a courtesy copy and I also gave 10 Mr. Lanpher a copy this morning.
ij MR. LANPHER:
I'm not pointing to anything.
I 12 haven't had a chance to review it.
I did not get it in the 13 f')
b office on May lith.
I was in the office on May 12th until ja just before 11 o' clock.
Mr. Miller was trying to get a 15 l
16 P ane last night and forget to leave a copy for me.
17 JUDGE FRYE:
That's on a different topic though.
18 MR. LANPHER:
Yes, but I ---
JUDGE FRYE:
That's on the staff's response to 39 motions to limit cross.
20 MR. LANPHER:
Okay.
I haven't had a chance to 21 1
k at either.
22 MR. ZAHNLEUTER:
Nor have I.
23 MR. LANPHER:
Turning to the LILCO strike 24 m tion, responding even to point 1,
Judge, could take a long 25 O
91300000 5922 marysimons 1-time.
I will try to be brief or relatively brief.
V 2
JUDGE FRYE:
Why don't you skip Petrone and go 3
to the next individual on training, Minor.
4 MR. LANPHER:
Okay, Judge.
Mr. Minor is 5
imminently qualified in our opinion to provide this 6
testimony.
LILCO cites certain things out of the Minor 7
deposition.
In fact, Mr. Minor has appeared as an expert 8
witness on five different times on emergency planning 9
matters, once in the Diablo Canyon proceeding, four times in 10 this proceeding, has noted Item 57 in his resume, he has 11 performed a review of the Chernobyl accident, including the 12 impact on emergency planning, and in fact since 1982 he has 33 been intimately involved in the review of LILCO's emergency I
p'lan and all of its iterations.
I'm not going to say he ja knows as much about it as Mr. Daverio perhaps, but Mr. Minor 15 16 has been intimately involved.
17 I dare say that he has spoken with and worked
.is with prpbably every Suffolk County witness who has been 19 presented on' emergency planning matters in these proceedings 20 since 1982.
He has developed in fact a wealth of expertise 21 on emergency planning matters.
He has reviewed emergency 22 planning plans for Shoreham, Diablo Canyon, Limerick and Seabrook.
23 24 While he has not attended emergency planning 25 exercises, and I would not that Mr. Hockert hasn't either,
91300000 5923 marysimons
{~j}
j and I'm not sure that that's necessarily a criterion, but he s
2 has looked at exercise reports obviously for Shoreham, 3
Indian Point, Diablo Canyon and at least one other plant 4
that he couldn't remember last night when he and I were 5
chatting about this matter.
6 Those are just some of the specific details with 7
respect to Mr. Minor.
8 I w uld like to state one more general comment 9
which applies not only to Mr. Minor, but also to the other 10 witnesses and it harkens back a little bit both to the n
training argument last week, I guess it was last week, and also to some comments of Mr. Irwin this morning.
12 13 There probably is no such thing as a an " expert" O
dss on the Contentions Ex-15 and 16 issues in terms of having ja 15 actual experience in trying to interpret precisely what the w rds are and what the words mean.
16 37 So the concept of expertise on Contentions Ex-15 and 16 I think is. materially different than what perhaps has jg j9 confronted this Board in other proceedings as well as this proceeding itself.
20 There are no litigated decisions, as you 21 mentioned.
We disagree, however, with LILCO that this is a 22 23
" policy issue" or inherently a policy issue so that you need people with policy backgrounds.
By the way, Messrs. Cook, 24 Colwell and Zook I think do bring a policy viewpoint to 25 O
91300000 5924 marysimons Ed certain of these matters, but let me get to them in a i
b 2
moment.
3 What is important on Contentions Ex-15 and 16, 4
and I don't want to repeat, is what happened during the 5
exercise.
Mr. Minor has reviewed very carefully what 6
happened during the exercise.
He was not present at the 7
exercise, but he has reviewed all of the exercise, or many 8
of the exercise documents.
I won't say he has reviewed 100 9
percent of them.
That's pretty hard.
30 A great deal of what they are seeking to strike ii on Mr. Minor's testimony concerns the following kinds of 12 data, background information about what the plan provides i3 and data concerning what happened during the exercise.
5 c[ss/
34 I submit that to present such testimony about 15 what the plan itself provides, that's essential background 16 data so that the Board has a basis to compare what was done 37 with what is in the plan.
18 JUDGE FRYE:
Well, we've got the plant.
MR. LANPHER:
Th6i: s right, but we have a right 39 20 in our direct presentation to ; ghlight for the Board what portions of the plan we think are relevant so that it can 21 22 compare the extent to which those portions of the plan were 23 tested or attempted to be tested.
JUDGE FRYE:
Well now correct me.
I thought 24 25 LILCO was moving to strike all of Mr. Minor's -- all of the
'I)
%s
91300000 5925 marysimons testimony of all of these identified individuals.
Am I s
)
incorrect?
2 3
MR. LANPHER:
you are not incorrect.
That is correct.
So what you're telling me then is that the Minor 4
^
testimony, it basically highlights the parts of the plan you 5
think are important?
6 MR. LANPHER:
And also goes through and pulls 7
together exercise observations and other data to describe 8
9 what was attempted to be done during the exercise.
10 Let me step back again.
Suffolk County's view ij on how you are going to have to make a judgment on whether 12 this was a full participation exercise does not go to whether was a particular objective done or not.
We are 33
()
going to address that in cross-examination, but as is clear 34 fr m ur testimony, we don't think that's the relevant 15 I"9"I#Y' 16 We think what is relevant is what does the y7 jg emergency plan provide, and given what is provided in that emergency plan, did they test the major elements or portions 39 20 it and did they do as much as reasonably was achievable.
of 21 So it's essential that you understand what the plan is.
Mr. Minor's testimony particularly goes to 22 highlighting what is in the plan and, second, what was 23 24 tested or what was attempted to be tested versus that plan.
That is an essential inquiry from our perspective.
25 OV
91300000 5926 marysimons
.[^k i
I haven't tried to do on a percentage basis what 2
Percentage of Mr. Minor's testimony goes to that sort of 3
issue, the background of what is in the plan and what was 4
done, but a very large percent.
And the same goes, by the 5
way, for Messrs. Zook and Colwell.
6 JUDGE FRYE:
LILCO says it doesn't make any 7
difference because you have other witnesses that sponsor 8
these answers.
9 MR. LANPHER:
That's not correct.
I don't know 10 you've marked up your copy of the testimony. I'll got you 11 haven't.
12 (Laughter.)
13 Because it's a big job.
L(
ja JUDGE SHON:
Could you point us to the. areas that Mr. Minor takes care of by himself.
A motion to strike 15 16 Mr. Minor's testimony is a little fuzzy if you don't know 17 exactly which part of the testimony is Mr. Minor's and his 18
- alone, j9 MR. LANPHER:
I can walk you through the whole 20 thing.
21 JUDGE SHON:
I've been looking and so far'I'm up 22 to ---
23 MR. LANPHER:
I've just opened to page 71 just this minute.
If you look at page 71 and this is on school 24 25 Preparedness, question, how many school districts, and this D.V
i 91300000 5927 CCrysimons is background information.
The next question on the next l-i 2
page is how does the LILCO plan deal with schools.
3 Now all of that testimony is moved to be struck.
Mr. Petrone is on it, but I mean he was subject to 4
5 the same motion and you told me don't address Mr. Petrone.
JUDGE FRYE:
Essentially his testimony does the 6
same sort of thing I gather.
7 MR. LANPHER:
That's right, but each of these 8
9 people -- and, by the way, Mr. Petrone was at the exercise and he has lived in Suffolk County, I'm not going to say all 10 his life, but for quite a while, but he was at the exercise ij 12 and he has reviewed the post-exercise assessment report.
He resigned over it and that's water over the dam.
i 13 OA-)
But this is the kind of background testimony at g
pages 71 and 72 of what does the LILCO plan deal with, or 15 J
how does the LILCO deal with schools.
That's essential 16 j7 information to set up the next section of the testimony of-18 what went on during the exercise start at page 73.
- Again, Colwell, Minor, Petrone and Zook testified as to that.
j9 I suggest that these gentlemen don't have to be 20 the world's greatest emergency planning experts to have 21 devised emergency plans to be able to go through the 22 Shoreham record as they have done and pull together such 23 information.
24 S
frankly, when I prefaced my remarks at the 25 I
~ C:)
L
. -.. - -. ~ _.,. -. -..
91300000 5928 marysimons
)
k
i start of this argument on LILCO's motion, I could go a long 2
time or a short time.
LILCO's motion is a blunderbust in 3
terms of striking on qualifications because it does not focus on what kinds of testimony are in fact sponsored by 4
5 these witnesses, and that kind of a blunderbust motion, I 6
would hate to say how long I had to divert from cross-7 examination preparation to try to decipher it myself and 8
it's not very helpful, frankly.
9 That's just an example.
Judge Shon, do you want jo me to give you more examples?
11 JUDGE SHON:
No.
Then I take it you would 12 disagree with the statement at page 22 of the motion to i3 strike which says "Nor are intervenors prejudiced by the p
-La exclusion of the witnesses whose testimony.is proposed to be ja 15 stricken in all significant areas of their testimony on 16 Contentions EX-15 and 16.
The testimony is also sponsored i7 by witnesses whose credentials on this testimony LILCO does 18 not challenge."
39 MR. LANPHER:
Judge Shon, one of the big areas 20 of disagree with LILCO is when they try to tell this Board 21 or us what portions of our testimony are significant.
All 22 right?
JUDGE SHON:
Okay.
23 24 (Laughter.)
25 MR. LANPHER:
Mr. Irwin is a good advocate and OLJ
91300000 5929 marysimons
,-3 i
all that stuff and we almost remain friends over time, but 2
he's just wrong there.
JUDGE FRYE:
Well, I think we can safely assume 3
that there would be a substantial ---
4 MR. LANPHER:
Mr. Zeugin -- he walked out, at 5
least Mr. Zeugin signed it.
Yes, we disagree strongly with 6
that.
7 8
I can go through the testimony to show this kind of stuff.
9 JUDGE SHON:
I guess my original question was a 10 little too narrow.
I had asked what Mr. Minor sponsored, gj 12 and I discovered that what you are giving me was what was sponsored by the four witnesses, all of whom were to be 13 stricken.
y MR. LANPHER:
Those four witnesses, Judge Shon, 15 have reviewed exercise related documents and the plan to 16 37 identify the necessary background and testing data which we ig think are important to present before the Board so that there is a context in which to judge.
39 20 We could have perhaps pursued all this by cross-examination, but we thought it was a lot more useful to put 21 it in in a format that we thought we would crystallize 22 things.
F r a n k l.y, to pursue this with cross-examination, and 23 don't take this as a threat, but I can assure you would take 24 a while.
25
91300000 5930 onrysimons yd i
I don't think, by the way, that many of the i
'1
'~
2 facts which are testified to about what were tested and what 3
were not are terribly much in dispute.
I'm sure some of the 4
adjectives and descriptions are going to be cross-examined 5
carefully by Mr. Irwin and that sort of thing.
6 So it's not going to be perfection there, but 7
the effort in a lot of this testimony by these gentlemen was g
to lay out the background and what was done on February 9
13th.
One of the reasons that was necessary, frankly, was to the FEMA report, notwithstanding its size, is still very ti much a summary document about what happened and what didn't.
12 JUDGE FRYE:
Well, I guess we should move on to 13 Roman II, the matters that are outside the contentions J(
i4 according to LILCO, outside the scope of the contentions.
15 MR. LANPHER:
Yes, sir.
16 JUDGE FRYE:
The first topic being objectives i7 tested versus objectives demonstrated, and I think we are is inclined to agree as a general proposition that we are at 39 this stage with these contentions looking at what was tested 20 and not what was demonstrated.
21 MR. LANPHER:
Well, Judge, there are a number of 22 answers to that.
It's almost impossible, frankly, to 23 distinguish between " testing" and " demonstrating."
If you 24 look at Attachment J to LILCO's testimony as well as 25 Attachment K which is the real thick attachment of all of ID k/
l 4
91303000 5931 marysimons the log excerpts and other kinds of forms, there is a great 3
~'
2 deal of testimony, in our opinion, that by any standard goes 3
to the question of the extent of the demonstration, and to try to persuade the Board that this was the most full 4
exercise ever.
5 I think the question of whether the 6
demonstration was successful is relevant even on Contentions 7
15 and 16, however, though because it's getting into what 8
was in fact demonstrated.
There are two answers on that.
9 10 First of all, you get some objectives that were n
listed, but were in fact for various reasons like school early dismissal were not fully demonstrated or not 12 completely demonstrated.
That goes to the scope of the 33
'( )
exercise and whether there was a full participation y
exer ise.
15 If y u agree with Suffolk County's point of view 16 j7 that one of the essential elements of a full participation 18 is not only the testing / demonstration, but also the observation.
It's not a demonstration or not a test if it's 39 been in a vacuum.
20 21 22 l
23 24 25 O
91300606 5932 JacWalsh The evaluation is critical.
And I will come to the evaluation point that LILCO gets to in a moment.
2 3
The second point I want to make is at the bottom of Page 23, under this objectives tested versus objectives 4
demonstrated, is that LILCO states at the bottom:
The sole 5
6 issue to have been addressed in this testimony is whether the scope of the exercise, the number and types of exercise 7
bjectives tested, meets the commission requirements.
8 9
We disagree strongly with that.
That is set f rth in our testimony.
We don't think that is the relevant 10 33 inquiry.
We don't think that these guidance memoranda are relevant.
12 That is an issue you are going to have to decide 13 whether that is the sole issue.
34 Now, FEMA apparently thinks that is the sole 15 issue.
They said that in their deposition testimony.
I 16 think LILCO cites that in their direct testimony, the FEMA 37 deposition testimony.
18 In fact, they cite it on Page 24 of the Motion, j9 l
but we disagree that that is the correct standard.
20 JUDGE FRYE:
So, you think you have to get into 21 what was demonstrated.
r 22 MR. LANPHER:
Well, that is right.
23 JUDGE FRYE:
Yeah, I understand you saying that, 24 but I don't understand why.
25
9130'0606 5933 Jo;Walsh f-k i
MR. LANPHER:
Because the extent of the D-2 demonstration -- the extent of the demonstration goes to the 3
scope of what was done during the exercise.
4 JUDGE FRYE:
You are saying something like --
5 MR. LANPHER:
I don't see how you can separate 6
testing.
I don't understand, first of all, what LILCO means 7
by, ' testing,' and frankly, I will highlight that so Mr.
8 Irwin can get his people ready, because I want to know what 9
they mean by, ' testing.'
jo But the extend of the testing is' critical to n
understanding whether it is a full participation exercise.
12 Now, we do not in our testimony go through every 13 little bit of where they made mistakes and that kind of
()
stuff.
That is for --
y JUDGE FRYE:
Are you saying something like FEMA 15 only observed three bus drivers, and that is not enough.
Is 16 that the --
y 18 MR. LANPHER:
That is pertinent also to the j 9, extent of the demonstration.
20 JUDGE FRYE:
They only mobilized three bus drivers, so that -- you wouldn't call that mobilization.
21 MR. LANPHER:
That is not enough mobilization, 22 number one, and the next relevant inquiry was:
Did FEMA 23 bserve those three?
24 JUDGE FRYE:
So, really what I understand you 25 f r 'N
. \\_]
91300606 5934 Jo:Walsh f3 3
saying is that you are not arguing that we need to be U
2 concerned about what was demonstrated, but we do need to be concerned about the extent to which various functions were 3
tested.
4 MR. LANPHER:
That is right.
For instance, we 5
have a disagreement, for instance, on school participation.
6 There are 33 schools, I guess, in the Shoreham EPZ.
It is 7
8 apparently LILCO's point of view that a pre-arranged single 9
demonstration with the Shoreham Wading River School District 10 is sufficient demonstration of school preparedness, with no telephone calls even going to any other --
JUDGE FRYE:
Okay, that is one thing.
But if I 12 Come back to my bus driver analogy, you are not, from what h
you are saying I gather, you don't believe that it is 3,
relevant that all three bus drivers got lost.
The three bus 15 drivers that were observed, at this stage of this particular 16 contention.
37 18 The point is, that only three were tested.
MR. LANPHER:
I believe you can have a failed 39 full participation exercise.
If that is what you really 20 mean.
21 JUDGE FRYE:
If you don't believe that, then I 22 am surprised you are here.
23 MR. LANPHER:
I am surprised I am here for other 24 25 O
91300606 5935 JccWalsh-i JUDGE FRYE:
The County takes the position that V
2 this exercise does not demonstrate a capability to provide 3
adequate protection to the public, and so obviously, you 4
have to take the position that the exercise was a failure.
5 JUDGE PARIS:
Mr. Lanpher, I would like to 6
explore the distinction between testing and demonstrating.
7 There were times when I thought that you were 8
defining them as I define them, and then there were times 9
when I wasn't sure, and I look at the -- I distinguish io testing from demonstrating in a scientific way.
13 You conducted tests in an attempt to demonstrate 12 whether something is true or not.
If you demonstrate it, then you -- if the test works, you have demonstrated a 13 i -4 f) phenomenon.
4 y
15 Are you using it in that way?
I conducted tests g
to try to demonstrate some phenomenon.
If it works, I i7 demonstrate it.
If it doesn't work, I demonstrate that it 18 doesn't work.
j9 MR. LANPHER:
Judge, your distinction is not a bad one in the abstract.
I would have to see if you can 20 21 guide me to some portion in our testimony that you would like me to address in terms of that, I would be happy to.
22 I don't think that that kind of distinction is 23 24 made in our testing.
25 The way I used the testing and demonstration, les
-91300606 5936 Jo;Walsh hi again, I have got to go back and look at our testimony to s
i
) -
i 2
deal with your sort of abstract question.
JUDGE PARIS:
At times you seem to be almost 3
reaching that, but I take it you weren't.
4 MR. LANPHER:
That is right; I don't believe I 5
am.
Because I think I am using testing and demonstration 6
much more closely to synonymous, and in the context of this 7
exercise or any full participation exercise.
It is very g
9 difficult to separate the testing from the demonstration, all right?
10 i;
JUDGE PARIS:
Okay.
JUDGE SHON:
I would like to asp you to clarify 12 an ther matter.
Judge Frye's analogy of cesting only a few 13 r)
{_j bus drivers seem to me to fall more under the rubrick of 3,
Contention 21 than of 15 and 16, is this not true?
15 MR. LANPHER:
No, I don't think that is true.
16 Because Contention 21 focuses on -- 21, 15, and 16 are j7 related, first of all.
They are all in the same sort of 18 category when we did all the contentions.
39 20 But Contention 21 goes to the question of whether FEMA had an adequate basis to believe that certain 21 bjectives were satisfied, okay?
22 Now, the same evidence may be used in both 23 Contentions, but in Contentions 15 and 16, the same evidence 24 is utilized in order to make the asgument that they didn't 25 Ov e
,,y
,~.-.-r-e n
r--
91300606 5937 JcCWalsh i
have a sufficient demonstration in terms of mobilizing a 2
sufficient number of people, or they didn't pass all the 3
major elements to the extent reasonably achievable.
I don't 4
have the Reg right in front of me.
5 So, I think it is clear under your earlier 6
rulings that the same evidence can support different 7
propositions.
The bottom line of the Contentions, 21 goes g
to objectives weren't demonstrated. 15 and 16 goes to the 9
question of whether the Appendix E requirements are satisfied.
io ji Now, LILCO's testimony we didn't move to strike 12 on the basis of 21 objection.
LILCO has construed 13 Contentions 15 and 16 as requiring an analysis of L( )
y objectives.
15 Arguably, there testimony under 15 and 16 is 16 more appropriately sponsored under 21.
I think they are i7 entitled to the leeway -- if they can demonstrate anexus to ig 15 and 16 to talk about objectives there, but the focus of 39 the two contentions are really different.
20 JUDGE SHON:
Well, perhaps we will have to discuss that when we discuss Subsection E of this same Part 21 22 II of your Motion to Strike.
That is, whether or not some of it is 23 duplicative of what LILCO sees as Contention 21.
24 MR. LANPHER:
Do you want me to proceed with the 25
\\_h l(
)
91300606 5938 Jc;Walsh J
r~~T next part?
3 V
JUDGE FRYE:
I need to ';ake a break at this 2
point, and I will keep that as brief as I can, and it 3
probably will take me about ten or fifteen minutes, and we 4
will be back in and finish this up.
5 MR. LANPHER:
Is the Board planning after this 6
is finished to go right into the Voir Dire and cross 7
examination without another break.
Do I get my stuff in 8
here or what?
9 JUDGE FRYE:
Where is your stuff; just next door 10 isn't it?
11 MR. LANPHER:
Yes, I have some more stuff to 12 bring in.
What do you want to do.
13 U's JUDGE FRYE:
We will go in immediately, but I
,j think we will need to give the witnesses time to set up.
15 MR. LANPHER:
All right.
Thank you.
g 37 (Whereupon, morning recess was taken at 10:20
. jg a.m.,
to reconvene at 10:31 a.m, this same day.)
JUDGE FRYE:
We will go back on the record, i9 26 please.
21 We w uld like to finish up the argument very quickly, and then we would like to bring in the witnesses 22 and get started on the cross examination, and we want to 23 confer over the lunch break with regard to the various 24 m tions, 25 p.N
i
.91300606 5939 JocWalsh J'k j
But I think we should be able to start this v
2 morning, and.if there comes a question as to whether 3
something is potentially stricken, because it is the subject 4
of a motion, I guess we will deal with that when we get to 5
it 6
MR. PIRFO:
Judge Frye, can I ask one clarifying 7
question first.
I am assuming, and I think the other a
parties probably are, that the areas in which you have not 9
sought --
jo JUDGE FRyE:
I think I know where you are n
going.
To save time, when we go through these, if we don't
-12 think that a case has been made, then that is the end of it so far as we are concerned.
y3 L(
y If we'think that a case has been made, then we 15 ask the other party for a response.
S we had left off, Mr. Lanpher, I guess we 16 j7 covered Point A under II, and we are going to hear from you 18 with regard to the rest of those points under II.
39 I don't know, maybe it would be good to jump 20 ver to, since we were into it to a certain degree anyway, Point E, Contention EX. 21, at this point.
21 i
l 22 MR. LANPHER:
I am not sure there is much more to say.
23 JUDGE FRYE:
Okay.
Well, that is up to you$
24 MR. LANPHER:
Unless Judge Shon has an answer.
25
913C0006 5940 JocWalsh
/-\\
I think the contentions come from different perspectives, j
L) the'same data may support each, and I am happy to answer any 2
3 questions that you may have concerning that.
JUDGE FRYE:
I don't think -- do you have any 4
other questions?
5 JUDGE SHON:
No.
6 JUDGE FRYE:
Okay, fine.
7 MR. LANPHER:
Let me go to Point B, which I will 8
call the FEMA evaluation issue.
9 We think that LILCO is just flat out wrong.
In 10 your December 11 Order, Page 14, you said:
FEMA may be ij questioned on its evaluation on the exercise.
12 Well, 11 FEMA may be questioned about its 13 evaluation of the exercise, other parties certainly have the 34 right to put in testimony concerning FEMA's evaluation.
15 JUDGE FRYE:
Right.
But is that really relevant g
to 15 and 16.
Maybe we have touched on this earlier.
j7 The point that we are concerned about is that it jg is not how FEMA evaluated the function on these contentions, 39 but whether the function was adequately tested.
20 MR. LANPHER:
No, we disagree strongly with 21 that, Judge.
22 The question of evaluation is integrally 23 inv lved in the interpretation of Appendix E.
24 Appendix E talks about observable portions and 25 O
y
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91300606 5941 JoSWalsh
'r~ k the verification.
It is implicit in Appendix E that there i
V 2
must be observations.
It is not enough for LILCO to just go 3
out and have a test of its plan.
FEMA never shows up --
4 JUDGE FRYE:
I grant you that, but the way I 5
read LILCO's motion is going to how FEMA evaluated these 6
matters on the merits, not whether -- this is the three bus 7
driver thing again it seems to me.
8 MR. LANPHER:
These portions do not go to -- we 9
question whether FEMA, in fact, evaluated a lot of these jo
- matters, ii We question whether in any real sense -- for 12 instance, there was an evaluation of school preparedness issues by FEMA.
I mean they missed the bus run because they 13 were talking to the Shoreham Wading River superintendent and 9
15 ther things.
g If you look at the particular items, I am happy i7 to walk through examples in the testimony.
Clearly FEMA 18 evaluation process, your December 11 order says that it is 39 open.
20 Further, I think the FEMA process is clearly 21 pen -- FEMA talks about it.
If you look at Page 92 of its l
22 testimony, it talks about -- they say:
FEMA made every attempt to assure that preparation for and evaluation of the 23 24 exercise was consistent with the parameters and processes established for other full scale exercises evaluated by 25 l
)
i
/
l
91300606 5942 JccWalsh FEMA Region II.
3 JUDGE FRYE:
What you are really saying is this 2
3 testimony goes to the extent of FEMA's observations.
MR. LANPHER:
The extent of FEMA's observations, 4
that is right.
5 JUDGE FRYE:
References to guidance. memoranda 6
post-dating the exercise?
7 MR. LANPHER:
You know, Judge, that strikes me 8
9 as a little short of an outrageous objection, given that LILCO's testimony is replete with draft Ex 3, dated August 10 1986.
jy How LILCO can --
12 13 "Y'
MR. LANPHER:
Do I have to say more.
34 JUDGE FRYE:
No.
,s MR. LANPHER:
Thank you, 16 JUDGE FRYE:
LILCO may want to respond to that.
y7 MR. IRWIN:
Let me respond to that last point ig first.
39 JUDGE FRYE:
Well, let me finish with Mr.
20 Lanpher.
I think he has a couple of more points here.
21 MR. LANPHER:
Do you want me to respond to any 22 thers, Judge?
23 JUDGE FRYE:
Well, Contention 20 and the 24 struchre of de organizadon.
25 O
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~91300606 5943 JccWalsh e-k i
MR. LANPHER:
There are a number of references, L) 2 quite few, to Contention 20.
In your Order of -- I forget 3
she day of which Order this was, I think it was again the 4
December 11 Order, but I may be wrong.
I can go back and 5
check at a break.
6 You said that Contention 20 was being denied 7
admission because these were matters that were covered by 15 and 16.
8 9
The references to Contention 20 are thus proper jo as indicating the kinds of matters which this Board 11 construed as being covered by Contentions 15 and 16.
12 You didn't admit Contention 20.
We are not 13 saying that you did, but your previous order was indicative if)s A,_
y of what you construed 15 and 16 as covering, so the 15 references are proper and quite limited.
16 Jumping to the structure, j7 JUDGE FRYE:
Again, it is quite limited.
18 MR. LANPHER:
Yeah.
JUDGE FRYE:
Well, I misread it.
It is a little 39 more extensive.
20 MR. LANPHER:
Which are you referring to now, 21 22 Judge?
JUDGE FRYE:
F.
The structure of the LERO 23 rganization.
24 MR. LANPHER:
I believe, if you go to Page 29, 25 l
l
91300606 5944 Jo1Walsh it i
is two portions of the testimony that LILCO is moving to strike, pages 17 to 23, and pages-83 and 84, portions on 2
those.
3 But a number of answers on that.
- First, 4
5 consistent with what I understand to be the Board's ruling on-Contention Ex. 50, and this is testimony sponsored by Mr.
6 Mr. Perrow, you did not strike Mr. Perrow's testimony on y
Contention Ex.-50.
You said it is a proper area to be 8
explored in cross examination, and if Mr. Perrow can tie 9
this to the exercise on Contention Ex. 50 or matters 10 jy pertaining to the exercise it would be proper: if not, it w uld have that much less weight, and perhaps be struck.
12 We believe that the same ruling is appropriate 13 here.
This is a matter which must be pursued on cross 14 exam na n, and it is inappropriate to be moving in the 15 abstract to strike it.
Now, the second point is that the LILCO p
rganizational structure as set forth both in the Contention 18 Ex. 50 testimony for a different purpose, and in this j9 testimony, is one of the nature of that structure is 20 instructive to the Board in determining how much of the Plan 21 needs to be exercised in order to be in a position for this 22 Board to make a reasonable assurance finding.
23 Ultimately Appendix E and the requirement for 24 full participation exercise all ties back to the need for a 25 O
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reasonable assurance finding.
\\/
2 And it is Mr. Perrow's testimony that given the 3
complex nature of that organizational structure, and the 4
hierarchy nature of it, it was essential that you take truly 5
at face value the need to test as much as reasonably 6
achievable to test the communication links, test the human 7
inter-actions, because those are key links in such a 8
structure.
9 Now, LILCO argues that this was not tied to the 10 exercise.
in Now, Dr. Perrow's testimony on Page 18, cross 12 references to the earlier testimony having to do expressly with the exercise.
It l's not essential for a witness to 13 F) ja expressly link in the profiled testimony what he says to the two exercise.
15 16 If LILCO wants to probe that, and try to i7 demonstrate that it has no relevance to the exercise, that 18 is a proper subject for cross examination, j9 It is not the proper subject at the outset for a motion to strike.
20 21 JUDGE FRYE:
Let's get Mr. Irwin's response.
22 MR. IRWIN:
Okay.
Let me start with the issue f qualifications of individual witnesses.
I should modify 23 what is written in our motion with one observation; and that 24 4
is that if Mr. Patrone remains on the witness panel, there 25 I
l.%/
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91300606 5946 JOCWalsh is no such thing as an answer sponsored by either Mr.
fg O
-2 Colwell or Zook, which is unaccompanied by another witness.
3 There are only two answered sponsored by Mr.
Minor, which are unaccompanied by another witness.
4 Therefore, if Mr. Patrone remains on the panel, I think my 5
lack of prejudice argument is basically intact, and 6
unrefutable.
7 One of Mr. Minor's answers is, as Mr. Lanpher 8
characterizes it, namely it is a description of matters 9
which are of historical note, and that is Footnote 24 on 10 g
Page 53, and that deals with review of public information g
program.
I am not sure that emergency planning expertise 33
.O Tj is relevant to that answer.
It is sort of background j,
material.
,5 However, his other answers, which is on Page g
150, illustrates exactly the problem that I have with the p
characterization that Mr. Lanpher has made with a number of 18 the answers proffered by Messrs. Minor, Zook, Colwell, and 39 Patrone.
j 20 If one examines Mr. Minor's answer on Page 150, 21 he is describing the details of negotiation of the exercise 22 scenario.
He goes into a description of what appears to him 23 to have been a conscious decision to keep the scenario 3
limited, and whether that is speculation or not is another 25 O
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91300606 5947 JccWalsh (N
i matter.
V 2
Then he gets inte the question of whether, as he 3
reads the regulatory requirements and ingestion pathway 4
demonstration was required in order for this to have been a 5
full participation exercise.
There is just no question but 6
that expertise in the construction of the regulations and 7
interpretive documents, as they relate to what a full 8
participation exercise is, is necessary for him to sponsor 9
that aspect of his testimony, and for the reasons which we jo have outlined, he just simply doesn't have that expertise.
11 Mr. Lanpher said, springing off from the fact l
12 that there is no decisional hagiography on the constructs of exercises, that there is no such thing as an expert on the 13 ah 3 q~
/
size, shape, and dimensions of emergency planning exercises, 14 i
He is wrong about that.
It is the gist of 15 16 expertise, this is an area of involving regulatory policy j7 which has been developing for seven years.
18 There is a cadre of experts around the county i9 who were living with it, shaping it, experiencing it, i
20 evaluating it.
21 Those are the people whose judgments have to be L
listened to.
This is sworn testimony, and serious stuff.
22 Mr. Minor is simply not qualified to proffer an 23 24 pinion based on the Able Lincoln School of Expertise on this kind of material.
25 l
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91300606 5948 Jo:Walsh That is my problem with the' opinions ventured by f -
3
%s Messrs. Patrone, Minor and so forth.
Mr. Patrone has the 2
kind of experience which I don't think qualifies him,'but 3
the Board is in a position to evaluate it.
4 JUDGE FRYE:
Mr. Patrone was the Regional 5
Director.
6 MR. IRWIN:
No question about that.
7 JUDGE FRYE:
Of this Region when the exercise 8
took place, and even though assuming you demonstrated his 9
knowledge to be limited, nonetheless he did hold that yg position.
ij MR. IRWIN:
He was in the seat, no question 12 about that.
These other guys have never even seen the 33
)
chair, and that is the problem.
3, 15 16 17 18 19 20 21 22 23 24 25 O
91300707 5949 cuewalsh y]I r
i If you leave Mr. Petrone on that panel, the only 2
two answers in that whole testimony which are effected are 3
the two that I have just mentioned.
And, one of them Mr.
4 Minor is patently unqualified to sponsor.
That's Point One.
5 Point Two, let's get to the question of the 6
distinctions that exist between testing, demonstration and 7
quality of evaluation, because they are three fundamentally 8
different concepts.
9 Judge Paris hit the nail right on the head, that jo there is a difference between testing and demonstration, ij The nature of the test and the definition of the test, as 12 I've always understood these contentions and as I thought the Board understood them as set out in Contentions 15 and 13 ja 16, what is the nature of the exercise that has to be set up 15 to prove you can do your stuff.
That is Contentions 15 and 16.
16 17 There are a whole slew of other contentions that is go into this litigation, with the exception really of 39 Contention 21, that go to the question, did you demonstrate it.
Did you demonstrate it on impediments?
Did you 20 21 demonstrate it on running the ENC 7 Did you demonstrate it 22 on training?
Did you demonstrate it on a whole raft of ther issues?
That goes to the demonstration.
23 24 The third category is the quality of FEMA's evaluation.
And, to the extent that that is relevant, 25 n
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,._.,,s
-m
91300707' 5950 cuewalsh namely in sample size, that is within the scope of f
3 Contention 21.
2 3
Those are three fundamentally different concepts,-and to ally them in one contention runs the risk 4
5 at least of artificial duplication and at a broader risk of 6
introducing a welter of new issues which were not fairly within the scope of any of the contentions, namely the 7
quality of FEMA's evaluation.
8 9
One has to bear in mind the pattern and dissent f authority in this area.
It starts with the regulations 10 which are not fully amplified or self-explanatory.
They go 3,
then to NUREG 0654, which is a joint NUREG, a joint NRC/ FEMA 12 d
ument.
They have been fully implemented in this series 13 f guidance memoranda which FEMA puts out, which are 14 reviewed by the NRC, and which have a structure under the 15 NRC/ FEMA memorandum of understanding.
g 37 Unless one keeps those things in mind, it is very difficult to sort out the three concepts that I was la just talking about, but you've got to do that.
39 20 Let's talk for a minute about the argument on Contention 20 where Mr. Lanpher's -- that's Item D and the 21 22 references to Contention 20 which was not admitted by the Board.
He says that the references -- acknowledges that 23 24 Contention 20 was not admitted because the matters taken up in it were subsumed or covered within 15 and 16.
That's 25 O
91300707 5951 cuewalsh 5 l.,
i right, and that's where they should stay.
G 2
He says that the references to Contention 20 3
were proper and, in any event, quite limited.
I agree they 4
are quite limited, but I don't think they are proper.
5 Let's look a little bit at Item F, which is the 6
relationship to the -- of the discussion of the LERO 7
organization.
I have two observations on that.
8 Applying the Board's own test in the training 9
contentions, the question is whether the argument on the
'LERO organization is linkable to the subject matter of the jo 11 contention.
There is nothing in the contention which says, 12 as does this organizational theory information, that the test had to be different for Long Island Lighting Company i3 V_ 'l i_s than it had to be for any other applicant because of the y
15 nature of the LERO organization.
That is not a focus of the contentions.
It is g
37 not fairly within the scope of them.
And, I just don't is think you can -- if he can link -- Dr. Perrow is a skilled 39 witness and he can link up almost anything to almost 20 anything else, but unless one of those two things is within l
21 the scope of the contention that doesn't make his testimony relevant.
l 22 i
And, I think that is the real difficulty with 23 i
Item F.
And, I think I will just leave it right there.
24 MR. LANPHER:
Judge, I would like to just reply 25 l
l 1
I
91300707 5952 Cuewalsh
. q]; -
3 very briefly to one or two items. '
f 2
JUDGE FRYE:
Very quickly.
MR. LANPHER:
Mr. Irwin says that there will be 3
no prejudice if only Mr. Petrone were left except for those two questions.
That's just not the case.
As I'm sure the 5
Board is aware, witnesses put together things together and 6
rely on each other.
7 With respect to Mr. Minor's statement on Page 8
150 that Mr. Irwin referred to, that testimony talks about 9
how, as he reads the regulations.
LILCO is permitted to to i;
probe Mr. Minor's reading of the regulations.
Mr. Minor has been reading NRC regulations since 12 the 1960s.
13 He has got a wealth of experience in dealing
' 'u with regulatory issues at the NRC and has been intimately y,
involved in emargency planning issues since 1982.
15 0,
s again is in an area dat goes to 16 weight.
Mr. Irwin, dealing with the qualification of the 18 19 esdmony, never deals WM de pdmary issue Gat I raised, that a huge hunk of this testimony that they move to strike 20 21 with their blunderbuss is going to background data, what was provided in the plan.
22 Mr. Irwin talks about the dissent of authority --
23 24 think those were his words -- from regulations to 0654, I
to guidance memoranda.
Well, that's an issue here.
I don't 25 O
91303707 5953 cu;walsh
'f j
want to belabor the point, but that's an issue whether any
's /
2 of that stuff below the regs is authority at all.
3 The final thing, with respect to Part 2.F, the 4
structure of the organization, LILCO has -- basically this 5
is testimony that is Mr. Perrow's testimony as to why he 6
felt that it was important to have a full test, a really full test.
LILCO has testimony that goes to the point of 7
8 why didn't they think it was important to have a very full 9
test.
jo For instance, if you look at Page 36 at the very ii bottom and continuing to the next full page about schools, 12 they think, oh, given the structure of schools you don't need to have a full test.
Well, they are getting into 33 p)i L.
structure there.
That's properly within the scope.
y, m
15 The question is what is necessary, in this instance, to meet the regulatory requirements.
And, it's 16 j7 the facts that are important.
Mr. Perrow's testimony goes 18 to those issues.
19 Thank you.
JUDGE FRyE:
Let --
20 MR. IRWIN:
Judge Frye, if I may just very 21 22 quickly on two things.
23 Mr. Lanpher has just referred to Mr. Minor and 24 suggests that LILCO ought to probe his testimony and see to its weight and see what is being suggested by it.
If the 25
91300707 5954 cuewalsh Board will look -- and he bases that on Mr. Minor's years of w
reading NRC regulations and documents.
2 3
If the Board will look at Pages 18 and 19 of our motion and the McGuire case you will find the situation 4
exactly on point involving a man named Riley, who was a 5
trained chemist and obviously an experienced layman; and, 6
the Board there, sustained by the Appeal Board, found that 7
technical competence in one area was not applicable to the g
9 area in which his testimony was proffered, and supplemented by " years of reading AEC and NRC documents" could not make 10 gi up for his lack of applied expertise.
I submit that having to probe Mr. Minor, Mr.
12 Colwell or Mr. Zook question-by-question through 150 pages g
f)
(,/
of testimony is a waste of the Board's and the parties' 3,
time.
That's the reason I've got my blunderbuss out.
15 It's the first time I've ever been accused of 16 being a Pilgrim.
I've been called lots of things on this 17 Island, but I will take being a Pilgrim on this occasion, la MR. LANPHER:
I didn't call him a Pilgrim.
y9 (Laughter.)
20 MR. LANPHER:
I might call him something else.
21 MR. ZAHNLEUTER:
Judge Frye, I would like to add 22 that I have nothing to add to Mr. Lanpher's --
23 (Laughter.)
24 JUDGE FRYE:
I think this area has been going on 25
91300707 5955 Cu walsh
-d too long.
r i
I ()
2 MR. ZAHNLEUTER:
But, I don't want that to be 3
construed that the State takes no position, because there is 4
a State witness involved, Mr. Petrone --
5 JUDGE FRYE:
Yes, we understand.
6 MR. ZAHNLEUTER:
-- and I understand there is no 7
need to address that issue.
JUDGE FRYE:
Yes, that's right.
8 9
MR. PIRFO:
May I just have 15 seconds to state jo the Staff's position, and I won't argue further on it ij because I understand the Board's ruling on this as to the 12 qualifications of the various witnesses, and we won't take up any of the Board's time on voir dire with this, 33 i_)
With respect to Minor, we are not arguing with y
his qualifications.
With respect to Mr. Petrone, I think 15 the Staff's position is essentially the same as what I heard 16 the Board voice.
In reading his deposition, we think his i7 la testimony probably should be accorded very little weight, if i9 any.
20 But, the fact is, as the Board said, he was in that seat at that time.
And, therefore, we would have 21 22 Problems with the striking of his testimony.
As to Messrs. Zook and Colwell, the Staff would 23 agree with LILCO's motion, that there is nothing that 24 evinces any qualifications to testify in this matter in 25
. (.
91300707 5956 Cuewalsh
-(f)g their background.
i q-JUDGE FRYE:
Okay.
Let's -- we've still got the 2
problem of the LILCO motion to consolidate.
Have you 3
reviewed that?
4 MR. LANPHER:
I have not reviewed whatever the 5
NRC Staff filed on that, Judge.
6 MR. IRWIN:
The Staff just supported our --
7 JUDGE FRYE:
I think the Staff just supported 8
it.
9 MR. LANPHER:
I'm not saying that there is 10 anything in there that I need to read.
33 JUDGE FRYE:
Let me go through this very 12 quickly, because I don't want to take any more time on U
arguing this.
We have witnesses'out there.
j, 15 y re ec n,
fr m having reviewed this earlier, was that I didn't see or I didn't envision, y,
37 although I'm probably wrong about this because I usually am, 3g that there was anything that looked to Jne like it would create very much of a problem.
The State and the County 19 have filed joint testimony on Contentions 15 and 16 in one 20 package.
21 And, while the witnesses say that they are not 22 23 exactly joint witnesses it seems to me they probably really i
are.
They are being presented as a panel.
24 25 Do you have any substantial problems with Point O
.~
91300707.
5957 cu:walsh h-d 3 in LILCO's motion?
i
.O 2
MR. LANPHER:
Let's be precise.
Where are you?
3 JUDGE FRYE:
Page 9.
4 MR. LANPHER:
Judge, Mr. Zahnleuter and I have 4
-5 talked about this.
He will speak for himself.
6 I would rather not address only Point 3.
I do believe that they are different.
You know, the REPG 7
8 witnesses in particular --
1 j_
9 JUDGE FRYE:
The which witnesses?
jo MR. LANPHER:
The REPG, excuse ne.
R-E-P-G, n
call caps, witnesses appearing on behalf of New York State 12 bring a different perspective and interest frankly than the Suffolk County witnesses.
I can only --
13 L(
y JUDGE FRYE:
Well, I'm not denying the fact --
i l
MR. LANPHER:
Okay.
15 i
JUDGE FRYE:
-- that the State and the County's 4
16 j7 interests may not always completely coincide.
I can imagine jg that they --
39 MR. LANPHER:
Our bottom line position on this 20 is, you ought to deal with things as they come up, number i
one.
21 JUDGE FRYE:
Yeah.
22 MR. LANPHER:
In terms of defending this panel 22 24 when it appears, we both need to be in a position -- both I
Mr. Zahnleuter and I need to be in a position to make 25
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91300707 5958
' cuewalsh jm p
objections.
2 With respect to the LILCO panel, which is about 3
to come up here, I am proposing to take the lead on cross-
[,
examination.
Mr. Zahnleuter, if he has any questions that 4
5 aren't repetitive, as he has-done before, will pursue it.
And, there has been no abuse whatsoever in this proceeding 6
l like that.
7 8
With respect to the last point, we are not 9
proposing to do any cross-examination of each other's
)
witnesses on this panel.
And, I understand we are only 10 ij talking 15 and 16 here in the OL-5 proceeding.
I 12 We cannot represent at this time who would do redirect and maybe depending on the nature of the inquiry by 33 b
)
LILCO or the Staff or the Board we would both need to do 34 redirect, you know, to particular witnesses.
That's getting 15 into the area of speculation at this point.
g
{
MR. IRWIN:
Judge Frye, may I be heard on this j7 one minute?
18 JUDGE FRYE:
Sure.
39 MR. IRWIN:
We've had a lot of experimentation 20 with lawyers going back and forth and the County and State 21 mutual participation in witness panels.
Mr. Lanpher says 22 let's not deal with things until we get to them.
23 l
As a general matter, I agree with that 24 1
proposition.
The difficulty is, we've gotten to it on this 25
($)
i i
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91300707 5959 cuewalsh 5k piece of testimony.
We have dozens of answers that are i
\\J 2
literally sponsored by witnesses from New York State and 3
Suffolk County.
4 Now, I can imagine the situation if I or Mr.
5 Zeugin ask a question finding one objection from Mr. Lanpher 6
and another from Mr. Zahnleuter.
7 JUDGE FRYE:
If this gets to be a problem in the g
course of this testimony, I will deal with it then.
But, so 9
far it has not been a problem.
in MR. IRWIN:
No, sir.
But, you've never had a 11 panel like this --
12 JUDGE FRYE:
That's true.
MR. IRWIN:
-- where they have voluntarily 13 q,
i4 consolidated themselves.
JUDGE FRYE:
That's true.
So, we will just hold 15 this for now.
If it becomes a problem while we are going g
37 through the testimony, we will pick it up at that time.
ig But, I am confident, or I am hopeful anyway, j9 that having set through a number of weeks that it's not 20 going to be a problem.
MR. ZAHNLEUTER:
Again, I want to note for the 21 22 record that my silence should not be construed as no position.
And, I have plenty to say.
But, if I understand 23 24 things right there is no need to say anything now.
JUDGE FRYE:
Do you envision that there might be 25
{
b 91300707 5960 cunwalsh
~f a problem arising?
3 b
MR. ZAHNLEUTER:
I don't envision any problems.
2 And, _I think that the suggestion that Mr. Lanpher just made 3
is reasonable and we haven't encountered problems in the 4
past.
And, I think that I have especially orchestrated my 5
conduct to avoid such problems.
6 JUDGE FRYE:
I think you have.
7 MR. ZAHNLEUTER:
And, I will continue to do 8
that.
9 JUDGE FRYE:
Okay.
Fine.
Let's bring the 10 witnesses in.
i; 12 13 14 15 16 17 18
+
19 20 21 22 23 24 25 O
91303808 5961 marysimons
~(
i Whereupon, V
2 CHARLES A.
DAVERIO 3
DENNIS M.
BEHR 4
and 5
JOHN W.
HOCKERT 6
were called as a panel of witnesses on behalf of LILCO and, 7
Messrs. Daverio and Behr having been previously sworn and Mr. Hockert having been first duly sworn by Judge Frye, were g
9 examined and testified as follows:
jo JUDGE FRYE:
Thank you very much.
in MR. IRWIN:
Judge Frye and Members of the Board, 12 Mr. Zeugin will be handling this witness panel and while I have the mike for the last time, I would like to introduce i3 l d
)
to to the Board Marcia Gelman who is seated immediately to i4 15 my right, an associate in our firm who has worked on this issue also.
16 37 JUDGE FRYE:
Fine.
Thank you.
Happy to have is you, Ms. Gelman, i9 DIRECT EXAMINATION 20 BY MR. ZEUGIN:
21 Q
Gentlemen, let me ask you each to identify 22 yourselves and state your business address for the record.
A (Witness Behr)
My name is Dennis M.
Behr.
My 23 24 address is 366 Veterans Highway, Commack, New York, 11725.
A (Witness Daverio)
Charles A.
Daverio, Shoreham 25 O
913C0808 5962 marysimons Nuclear Power Station, P.
O.
Box 628, Wading River, New i
j York, 11792.
2 A
(Witness Hockert)
John William Hockert, 3
International Energy Associates, Limited, 1717 Louisiana, 4
N.E.,
Suite 20?, Albuquerque, New Mexico, 87110.
.5 MR. ZEUGIN:
- udge Frye, at this time I would 6
like to mark as LILCO Exercise Exhibit 12 a document that is 7
entitled "LILCO's Testimony on Contentions EX-15 and 16" 8
9 that has previously been served on all parties to this litigation.
10 3
JUDGE FRYE:
Okay.
12 (The document referred to was marked LILCO Exercise Exhibit g
g4 No. 12 for identification.)
eY MR. zEuoIN:
en eme me as yo o ntly and, H you 16 would, please answer me collectively, do you have in front 37 of y u LILCO Exercise Exhibit 12 which is entitled "LILCO's 18 39 Testimony on Contentions Ex-15 and 16," dated April 6th, 19877 20 A
(Witness Daverio)
Yes.
21 A
(Witness Behr)
Yes.
22 A
(Witness Hockert)
Yes.
23 Q
As to each of you and the portions of testimony 24 sponsored by you, was it prepared by you or under your 25 O
91300808 5963 marysimona
k i
supervision and direction?
v 2
A (Witness Daverio)
Yes.
3 A
(Witness Behr)
Yes.
4 A
(Witness Hockert)
Yes.
5 Q
Are there any corrections or additions you would 6
like to make to the testimony?
7 A
(Witness Daverio)
Yes, there are.
8 On page 3 in answer to Question 3, the 5th line, 9
the word "one" should be changed to "two," based on a recent to change in the regulation in the last couple of weeks I si believe.
12 Q
And I take it also on that change, Mr. Daverio, 13 the word " year" should be become years?
i4 A
That's correct.
15 On page 7, the 10th line, the words "and soon to be finalized," should be removed, 16 i7 On page 11, the 6th line, between the words is "recent" and " guidance" add the word " draft."
39 And on the next line beginning with the word 20 "Which," remove the rest of that line through the comma, after the word " months."
21 22 One more.
On page 41, the words " nuclear 23 safety" should be removed and the words " recovery and I
24 reentry activities" insert in its place.
25 Those are the only changes I have.
91300808 5964 marysimons JUDGE PARIS:
Where on page 41 is that?
y WITNESS DAVERIO:
I'm sorry, the 6th line, just 2
before the "See" in "See deposition."
3 JUDGE PARIS:
And would you run through the 4
change again, please.
5 WITNESS DAVERIO:
Recovery and reentry 6
activities.
7 JUDGE FRyE:
Should be substituted for " nuclear 8
9 safety"?
WITNESS DAVERIO:
Right.
Take the words jg n
" nuclear safety" out.
1 WITNESS BEHR:
If you could turn to Attachment 12 Q, please.
That's all es.a way at the back of the book.
g
()
It's the second to the last attachment.
The first page in Attachment Q where it says all 15 the way in the upper left-hand corner " FEMA Region 2 full g
participation exercises," Item 2 or Column No. 2 on that j7 matrix where it says IP-3, and underneath that it says 883.
jg i
That should read "383."
y, 20 Now I'm going to go down that column, and you 21 see there is a column of zeros and ones and I'm going to i
make some changes to that column.
If you count down to the 22 third zero in the column across from radio stations, that 23 should be a one.
24 If y u count down to Item No. 10 ---
25 4-y_m
--_,_r___...
._...7,
, m y
,.,n--._-n_m_,-_-,.y.~m,-.,,
,,,,,,-..,7w..
91300808 5965 ctrysimons r~l JUDGE PARIS:
From the top?
Q 2
WITNESS BEHR:
From the top, across from the 3
abbreviation for " evac" or evacuation, that one shouldlbe 4
changed to a zero.
And the one immediately below it should 5
be changed to a zero.
6 Item No. 16 across from Non-Dairy PAR, change 7
that zero to a one, and the item right below it across from Drink Water should also be a one.
8 9
And the number at the bottom of the column, 10 which is now 12, should be changed to 13.
i:
That's all I have.
12 WITNESS DAVERIO:
Just on that change from one 13 to two years, I have the Fed. register reference just to put I ;T a_
ja it on the record.
It's May 6th, 1987 at page 16,829.
JUDGE FRYE:
Thank you.
15 JUDGE SHON:
I'm sort of surprised that you 16 17 changed all the numbers in that particular column and didn't 18 change the column at the extreme right.
WITNESS BEHR:
You mean the average, the norm?
19 JUDGE SHON:
It's listed number of numbers per 20 omission or number of noes.
Is that not affected by the 21 number of noes?
22 WITNESS BEHR:
Yes, it is.
I'll do that later 23 and get back to you on it.
24 JUDGE SHON:
Okay.
25 O
f t
'o t
91300808 5966 marysimons
. Cim MR. PIRFO:
If I may get one clarification.
I j
b 2
missed the one between non-dairy ---
WITNESS BEHR:
Oh, right below non-dairy drink 3
water.
4 MR. PIRFO:
Okay.
Thank you.
5 WITNESS HOCKERT:
On page 3 of the testimony, 6
the third line ---
7 MR. LANPHER:
Just one second, Mr. Hockert.
8 WITNESS HOCKERT:
Replace "to develop an 9
exercise evaluation module for" with "that developed a 10 guidance memorandum for."
I'm sorry, it should be a " draft ij guidance memorandum for."
12 BY MR. ZEUGIN:
13-
/^
\\m,T Q
Just so we are clear, Mr. Hockert, I take it
/*
34 that phrase should now read as corrected "I have managed a 15 project that' developed a draft guidance memorandum for the g
ingestion exposure pathway?
j7 A
(Witness Hockert)
Yes, sir, 18 That's all the changes I have.
j9 Q
Gentlemen, is this testimony as corrected true 20 and correct to the best of your knowledge and belief?
21 A
(Witness Daverio)
Yes.
22 A
(Witness Behr)
Yes.
23 A
(Witness Hockert)
Yes.
24 MR. ZEUGIN:
Judge Frye, at this time I would 2$
(O
_/
O
=
91300808 5967 marysimons f
i move the admission of LILCO Exercise Exhibit 12 into
'J
~
2 evidence.
3 JUDGE FRYE:
Subject to our ruling on the 4
pending motion, do you have any objection, or in addition to 5
your objections stated in your motion do you have any 6
objections?
7 MR. LANPHER:
Subject to the qualification that g
I expressed in that motion which was that there may be 9
additional areas subject to being struck once I proceed with 30 cross-examination.
Other than that, I don't have any ij objection.
e 12 JUDGE FRYE:
Mr. Zahnleuter?
MR. ZAHNLEUTER:
No objection, subject to the 33 IT T d/
ja same qualifications.
JUDGE FRYE:
In fact, that motion was filed on 15 behalf of New York State as well.
16 37 MR. ZAHNLEUTER:
That's right.
18 JUDGE FRYE:
Staff?
i9 MR. PIRFO:
The staff has no objection.
20 JUDGE FRYE:
No objection.
22 JUDGE FRYE:
No objections.
Subject to all those caveats, the testimony will be admitted as LILCO 23 Exercise Exhibit 12.
24 25 i
91300808 5968 marysimons n
(LILCO Exercise Exhibit j
U 2
No 12 previously marked for 3
identification, was admitted 4
into evidence.)
av Ma. zEuoIN:
l 3
l Q
Mr. Hockert, let me ask you if you have in front 6
of you LILCO Exercise Exhibit 1 that has previously been 7
admitted that is entitled " Professional Qualifications of 8
LILCO witnesses on exercise contentions.
9 A
(Witness Hockert)
Yes, sir.
10 3
Q And let me have you look at the information that is contained behind Tab 4 of that document.
Let me ask you 12 is this a current statement of your professional 13 l
,j,
qualifications?
A Yes, sir, subject to one minor correction and a 15 p ssible addition.
On page 3 after that tab, the first line 16 of the third paragraph, the fourth word should be 37 l
" investigation" rather than " investigator."
That's a ig l
typographical error.
39 And, second, since I submitted this information, 20 the Lawrence Livermore National Laboratory has contracted 21 with me to develop a set of exercise objectives for a 22 comprehensive test of their safeguards and security program 23 at the laboratory.
24 Q
Mr. Hockert, just so the record is clear, your 25 b
a
91300808 5969 trrysimons M
change on page 3 in paragraph 3 was to change the word i
g 2
" investigation" to " investigator," is that correct?
3 A
Yes, sir.
4 MR. LANPHER:
Could I ask a clarification.
With 5
respect to Lawrence Livermore, are you making a change to 6
this statement of qualifications init we should be 7
inserting?
8 WITNESS HOCKERT:
I would like to add a sentence 9
at the end of the statement of qualifications that says "We 10 are developing a set of exercise objectives for a 11 comprehensive test of the safeguards and security program 12 for Lawrence Livermore National Laboratories."
BY MR. ZEUGIN:
13 34 Q
With those changes, do you adopt this statement L
15 f professional qualifications as your statement of 16 professional qualifications?
A (Witness Hockert)
Yes, sir.
j7 18 MR. ZEUGIN:
Judge Frye, at this time the 3
witness panel is ready for cross-examination.
20 JUDGE FRYE:
Mr. Lanpher.
21 CROSS-EXAMINATION BY MR. LANPHER:
22 Q
Mr. Hockert, just to follow up with that last 23 24 change that you mentioned of developing the exercise bjectives for safeguards, has that work started?
25
91300808 5970 cc.rysimons
/
A (Witness Hockert)
Yes, sir.
j V
Q Is it relevant to the testimony you're providing 2
in this proceeding?
3 A
It does not directly relate to the testimony that I'm providing in this proceeding.
5 Q
Does it relate in any way, sir?
6 A
Yes.
It's one more example of my qualifications 7
in the planning area and the exercise objective development 8
area.
9 Q
Are those exercise objectives being developed, 10 y
those that you're doing for Lawrence Livermore being developed under Appendix E to Part 50?
12 i
A No, sir.
g Q(x j,
b Q
And you have not developed those objectives yet; is that correct?
15 A
No, sir.
We are in the process right now.
16 Q
When did you begin work on that project?
37 18 That aspect began about a month and a half ago.
A Q
Approximately how much time have you devoted on j9 it in the last month and a half?
20 A
About two weeks.
21 Q
Mr. Behr, you made a correction to Attachment 22 Q.
This wasn't a typographical correction, was it?
23 A
(Witness Behr)
No, it wasn't.
24 Q
Y u in fa t changed the exercise that you were 25
01'300808 5971 airysimons
(~:\\
going to analyze, correct?
i "J
2 A
That's correct.
3 Q
When did you decide that you would have to, 4
change that exercise?
5 A
I believe it was just prior to my testimony on 6
Contention 50.
7 Q
Is that about two weeks ago?
A I believe it was about two weeks ago, yes.
8 9
Q How did it come to pass that you decided to io change the exercise from the 883 exercise to the 383 n
exercise?
12 A
I realized that a mistake had been made in some 33 of the notetaking that was done in the past and that we had
}
indicated that the 883 exercise was full participation and 34 15 thct the 383 exercise was not and indeed it was the pposite.
16 j7 Q
And you discovered this approximately two weeks 18 ago?
A Yes.
39 20 Q
Was this discovery by you in the context of 21 reviewing your testimony?
A Yes.
22 L
Q Can you please explain how you didn't discover 23 this earlier?
24 A
I just didn't notice it.
25 R)
. ~ -
91300808 5972 marysimons pq Q
What didn't you notice, Mr. Behr?
I mean there j
C/
2 is a big difference -- there are different exercise reports and everything; isn't that correct?
3 A
Yes, they are.
4
-Q Prior to the time that you submitted your 5
testimony, which I guess was submitted on April 6th ---
6 JUDGE PARIS:
That's right.
7 BY MR. LAWHER:
8 Q
Thank you.
--- April 6th, had you reviewed this 9
table?
10 A
I had reviewed the table, yes, but I had not ii reviewed the reports in any great detail.
12 Q
Then you didn't prepare this table?
13 A
I prepared the table, yes, I did.
34 Q
How did you prepare the table without reviewing 15 the reports, sir?
16 A
The table was prepared from notes that were j7 taken by another gentleman.
18 Q
Could you please identify that gentleman?
39 A
The gentleman's name is Mr. Stephen Millioti.
20 l
Q S
he alone prepared all of the notes; is that 21 l
correct?
22 A
To the best of my knowledge, that's correct.
23 Q
But you're not sure; is that correct?
24 A
I'm as sure as I can be without having actually 25 i
l
- o
91300808 5973 marysimons i
been there to witness him taking the notes.
2 Q
What was his process in preparing this table?
3 A
He didn't prepare the table.
4 Q
What was his process in preparing the notes?
5 A
My understanding is he read exercise reports and 6
took notes on them.
We gave him the contention to look at 7
and he particularly went into the reports looking at the 8
areas identified in the subparts of Contentions 15 and 16.
9 Q
And he took notes on the Indian Point Unit 3 10 August '83 exercise, correct?
ij A
That's correct.
12 Q
And you reviewed those notes and prepared this table, the original version of the table, the version that 33 ir) d was served on April 6th, correct?
y 9
A That's correct.
15 16 17 18 19 20 21 22 23 24 25
!O
91300909 5974 Je&Walsh
'Q And, you didn't review the exercise report, j
2 however, prior to submitting this testimony?
A (Witness Behr)
Not for purposes of submitting 3
this testimony.
4 5
Q Did you review any of these exercise reports for 6
the purpose of submitting this testimony?
A There were several of them that I did review but 7
t not in any great depth.
8 9
Q Which were those?
i-A I don't recall offhand.
10 Q
I'm talking the entire Attachment Q.
A That's correct.
12 Q
Did you review two, five?
I would like an 33 approximation.
34 MR. ZEUGIN:
Objection.
I think that was asked 15 and answered.
I think Mr. Behr just stated he didn't 16 remember which ones he reviewed, so I don't know how he can 37 answer --
18 l
JUDGE FRYE:
He said he didn't remember which 39 nes, but he said he had reviewed several.
20 Do you have any idea of how many?
21 l
WITNESS BEHR:
I would characterize it as 22 approximately a half a dozen.
23 BY MR. LANPHER:
(Continuing) 24 Q
And, what was the nature of your review, prior
(
25 l
I 91300909 5975 Jo;Walsh e'I) i to preparing this table, of those reports?
- \\_/
2 A
Simply to get some clarification of some of the 3
notes that he took.
4 Q
Subsequent to -- approximately two weeks ago, 5
you discovered that for Column 2, Exercise, Indian Point 3 6
was not the one you wanted in this table, correct?
7 A
That's correct.
8 Q
How did that come about?
9 A
In discussions with various people, particularly ja with respect to the training contention, EX-50, I realized 11 that that -- that the exercise that I had included on the 12 table was the New York State compensating exercise and that it did not include all four counties around the Indian Point 13
'(vh L
site.
y 15 Q
Mr. Daverio, did you have any role in preparing this table?
16 37 A
(Witness Daverio)
No.
The table was prepared is by Mr. Behr.
39 Q
Mr. Hockert, I assume you had no role?
A (Witness Hockert)
That's correct.
20 21 Q
Mr. Daverio, have you reviewed all the exercise 22 reports that are reflected in Attachment Q?
A (Witness Daverio)
No, I have not.
23 24 Q
Have you reviewed any of them?
A Not in respect for this testimony.
Over the 25 P()
.ss
91300909 5976 Jc2Walsh
{[~.
years, I may have read them at different points.
(/
2 Q
Thank you for the clarifJcation.
I mean, for 3
this testimony.
A No, not for this testimony.
4 Q
Well, Mr. Daverio, would it be fair to state 5
that -- well, strike that.
6 7
You are listed starting at Page 45 as a co-sponsor for this testimony which includes the table; isn't 8
that correct?
9 Just look at Page 45.
10 A
Yes.
It includes more than the table.
It also n
12 includes a discussion of different aspects in who Participated, and I had looked at the notes that were 13 generated by Mr. Millioti prior to filing his testimony.
g Q
Okay.
So, you looked at his notes also?
15 A
That's correct.
But, I did not go to the backup 16 documents.
j7 Q
And, you also did not prepare the table.
That 33 was Mr. Behr's --
39 A
Mr. Behr prepared the table, that's correct.
20 Q
Is the only review then of these exercise 21 reports for purpose of this testimony the Millioti notes, 22 y ur review f his notes?
23 A
As far as I'm concerned, that's correct.
24 Q
Mr.
e subsequent to de filing of We 25 t
O
91300909 5977 Jc;Walsh
>~k.
testimony on April 6th, which of these exercise reports in i
).
2 Attachment Q have you reviewed?
3 (The witness is looking at a document.)
4 A
(Witness Behr)
I did review the report that was 5
listed there, the Indian Point 8/83 report.
6 Q
Okay.
7 A
And, of course, the 3/83 report, not to any 8
great detail but just to convince myself that there was 9
indeed an error made.
in And, I believe I did review the Ginna 9/85 ii report, the Nine Mile Point 11/85 report.
12 JUDGE SHON:
Excuse me a minute, Mr. Lanpher.
Mr. Behr or Mr. Daverio, I notice you have taken the In'dian 13 ys du)
Point compensat'ing exercise and excluded it and substituted ja 15 another Indian Point exercise in this case, g
Is it not true that earlier on in previous i7 testimony features of the Shoreham exercise were indeed 18 compared to the India,n Point compensating exercise?
39 WITNESS BEHR:
Yes, that was done.
20 JUDGE SHON:
I thought so.
That's all.
JUDGE FRYE:
He is still working on his answer.
21 BY MR. LANPHER:
(Continuing) 22 Q
Yeah.
I don't know if you had finished your 23 24 previous answer, Mr. Behr.
I had asked, to make it clear, 25 since the filing of this testimony which of the Attachment Q
91300909 5978' JccWalsh exercise reports you have reviewed.
-)
j J
2 I believe you have said the two Indian Point ones, the 8/83 and 3/83; and, you believe you have reviewed 3
the Ginna 9/85; and, you believe you reviewed the Nine Mile 4
Point 11/85.
5 A
(Witness Behr)
That's correct.
And, I also 6
recall I think I did look at I think it was the Perry 11/84 7
report.
8 9
Q Mr. Behr, that is the same report that is the subject of Attachment R, correct?
10 A
Yes.
3; Q
Now, does that complete your answer?
Those are 12 all the reports you have looked at subsequently, subsequent 13 to April 6th?
3, JUDGE PARIS:
Is the Perry exercise on this 15 list?
I can't --
g MR. LANPHER:
It's on the second -- Judge Paris, 37 y u have got to go to the second tabular form of Attachment 18 Q.
It will be the fourth page into Attachment Q.
y, JUDGE PARIS:
Okay.
7
.k you.
l 20 WITNESS BEHR:
Those are all the ones I can 21 recall reviewing subsequent to the submission of the 22 testimony.
BY MR. LANPHER:
(Continuing) 24 Q
And, it's your testimony that prior to 25 b
u
-, _ ~
~..
l 91300909 5979 JosWalsh i
. submitting the testimony you reviewed at most maybe a half a
-2 dozen?
3 A
I would say at most, yes.
And, it wasn't really 4
in the light of reviewing the report, it was more in the 5
light of getting some clarification on some of the notes 4
6 that I had looked at.
7 Q
So, in fact, with respect to those six prior to 8
April 6th you didn't do a comprehensive review of any of them?
you were checking the notes?
9 A
That's correct.
10 n
Q Did you do a comprehensive review of any of the 12 nes, any of the four -- excuse me, five that youLmentioned subsequent to April 6th?
13 t
A I would not call it comprehensive, no.
ja MR. LANPHER:
Judge Shon, I'm going to come back j
15 to this area.
I wasn't planning to get into this g
p initially.
It was with the change of the testimony.
I am is going to go back to some of the voir dire unless the Board 39 wants to follow up on this now, i
20 I will come back to the other exercise --
l JUDGE FRyE:
No.
That's fine.
Go ahead and 21 l
finish.
22 MR. LANPHER:
Unlike my colleague, Mr. Miller, I 23 i
tend to follow my cross-examination plan at times.
Do you 24 want me to advise the Board where I am, or do you intend to 25 i
~, _ _,,.
91300909 5980
-Jc;Walsh follow along?
73 3
-(_)
JUDGE FRYE:
No.
2 MR. LANPHER:
Okay.
3 JUDGE FRYE:
If we change our minds, we will let 4
you know.
5 6
VOIR DIRE EXAMINATION 7
BY MR. LANPHER:
Q Mr. Behr and Mr. Daverio, you co-sponsor 8
9 together a great deal of this testimony.
Is it fair to state that the final portion about the other exercises was 10 ij primarily prepared by you, Mr. Behr?
12 That's the portion starting at Page 43, sir.
(The witnesses are conferring.)
13
()
A (Witness Behr)
I think if we were to break it 3,
down on percentage wise, I would have the greater input, 15 Y***
16 Q
Now, are there -- in terms of the rest of the j7 testimony, did you play equal roles in preparing all of the jg rest of the testimony or were there some portions -- and j9 this goes to both of you gentlemen -- that one or the other 20 took a lead on?
21 (The witnesses are looking through the 22 document.)
23 Gentlemen, let me do this.
Look at Roman I, 24 a
gr un section, starting at Page 3.
You co-sponsor 25 O
91300909 5981 JocWalsh r3 almost all those answers, or all those answers, excuse me, t) i 2
Did one of you prepare that versus the other, or 3
did you both?
4 A
(Witness Daverio)
I think we probably prepared 5
more under our direction and supervision and both of us 6
reviewing it.
I don't think either one of us could be said J
7 to have been the primary author of that section.
s 8
Q Was Mr. Millioti again the primary author?
9 A
No.
There were different inputs into that.
Mr.
in M11110ti's work was strictly on the exercise review.
n Q
Okay.
Roman Numeral II, starting at Page 8, 12 "The February 13, 1986 exercise was a full participation 1
I 13 exercise."
Did either of you take the lead on that section d
or portions of it?
ja A
I think rather than going through each section, 15 16 think our answer to the first Section I would be in I
37 general how all the testimony was prepared that we sponsor.
18 Q
So, with the exception of the last part on other 39 exercises, either of you feel equally competent to present the answers?
20 j
A yes, I believe so.
l 21 22 Q
- Okay, Going back to Attachment Q for one m ment, Mr. Daverio, which of the exercises mentioned in 23 24 Attachment Q have you attended?
A Attended?
25 a
.,-..-s
- - -., - -. _ _. - - - -,.. _ - -. -.,,, -. ~ _... - - - - -,. - -. ~,..-
,.----...w r-.--+
~,e-
91300909 5982 Jo;Walsh Q
Yes.
-s f
- .Q 2
I was at a couple of Indian Point exercises, and A
I can't recall which of those four.
It was probably two of 3
the four, which two I don't recall.
4 I was at the I believe original Nine Mile 5
exercise in September '81; and, I was at a Ginna exercise 6
prior to their accident up there.
And, I can't remember if 7
that was '83 or
'85.
It was one of those two.
It was
'83.
8 9
To the best of my recollection -- well, I was at the Shoreham one.
10 ij Q
Mr. Behr --
A Let me just check the second page.
I don't 12 believe there are any on the second page because they are 13 outside the Region.
j, (The witness is looking at a document.)
15 To the best of my recollection, those are the g
ones I was at.
j7 Q
Mr. Behr, how about for you?
18 A
(Witness Behr)
As far as I can recall, I j9 believe I was at Indian Point 3/82, Indian Point 3/83, Nine 20 Mile 9/81, Fitzpatrick 8/82, Ginna 9/85, Salem 10/84 and 21 Shoreham 2/86.
22 I believe that's it.
23 Q
Thank you, Mr. Behr.
Mr. Daverio, directing 24 y ur attention to the bottom of Page 1 of the prefiled 25
<91300909 5983 Jo:Walsh f-k-i testimony, you state:
"My familiarity with the issues dealt
\\.j 2
with in Contentions EX 15 and 16 stems from my work..." and 3
it goes on to describe three different areas.
4 What issues are you referring to on Page 17 5
(The witness is looking at the document.)
6 A
(Witness Daverio)
The issues dealt with in 15 7
and 16, what wasn't done in the exercise, those kind of issues.
8 9
I believe there also are some contentions that jo got subsumed into 15 and 16 that had some performance ij aspects of the exercise.
The one that comes to mind is the 12 40 minute bus dispatch one.
So, generally those kind of issues were the 13 u
issues we were talking about there.
Q On Page 2, you talk about your experience in 15 developing and implementing the Shoreham plan.
Do you see 16 that testimony?
17 A
Yes, I do.
jg Q
How did that experience relate to your j9 20 understanding of the Appendix E requirements for exercises?
21 22 23 24 25
91301010 5984 cuewalsh-ha A
(Witness Daverio)
If you look at your EX-30, i
t 2
you have some contentions subsumed into 15 and 16 that talk about procedures.
And, that's, you know, just a general 3
statement, that I'm very familiar with the procedures and 4
plan.
5 6
And, based on that, you use some of that 7
knowledge not only to talk about some of your contentions but 8
in developing an exercise you need to have familiarity 9
with the plan and how it works so that you can get the jo exercise objectives to mesh with the plan.
11 So, I think you can say it relates in that direction.
12 Q
But, in developing and implementing the plan, 13
()
did you have any occasion to attempt to construe the Part j,
~
50, Appendix E, full participation exercise requirement?
15 A
No.
16 Q
Okay.
Now, you go on on Page 2 to talk about 17 your role as Lead Controller.
In that -- do you see that jg testimony, sir?
39 A
yes, I see that.
20 Q
In that job, do-you have any occasion to attempt 21 22 to construe the full participation exercise requirement of Appendix E7 I
23 A
You are limiting that sentence to the word i -
24
" exercise?"
Aren't you going to ask me about the rest of 25 f
91301010 5985 cuswalsh j-i it, because if you are going to want the whole sentence it V
2 might be a different answer.
3 Q
Well, let's just talk about your Lead Controller a
job.
5 A
As the Lead Controller, no.
6 Q
Thank you.
Now, we are going to get down to 7
what you want to talk about, your involvement in the 8
preparation of the exercise scenario.
9 Do you see that testimony?
30 A
Yes, I do.
~
11 Q
Now, isn't it correct, sir, that as -- well, you 12 were the lead LILCO person in terms of interfacing with FEMA 13 on the development of the exercise.
7) ss y
Is that a fair generalization?
u A
That's correct.
15 MR. LANPHER:
For the Board's information, I 16 i7 think most of that has been covered in earlier testimony.
I 18 will try not to duplicate.
BY MR. LANPHER:
(Continuing) 39 20 Q
Isn't it true that in your interfacing with FEMA 21 you never discussed with FEMA whether the Shoreham exercise 22 w uld satisfy the Appendix E full participation requirement?
A To my recollection, the only comments we had 23 24 from FEMA concerning the scope of the exercise was that it 25 was going to be handled and be in scope equal to other
91301010 5986 Cu;walsh Region II exercises.
j 2
The words "10 CFR, Appendix E, full 3
participation" did not come up.
Q Is it fair to state that you assumed it would be 4
5 a full participation exercise?
6 It's fair to say that I thought that given A
7 FEMA's representation to me this was going to be like all ther exercises that I assumed it met some of that standard, 8
9 yes, that was part of what they meant by that.
Q But, you never pressed them?
10 A
No, I never asked that particular question.
g 12 Q
Now, how did your involvement in the preparation of the exercise scenario, as referenced at Lines 4 and 5 on Page 2 of your testimony, lead you to familiarity with j,
Appendix E, full participation?
15 16 y
og e conversadons I just mendoned p
to you I had with FEMA in developing the exercise scenario.
Q But, in those conversations there was no express 18 discussion of Appendix E7 39 A
That's correct.
20 Q
Have you ever -- now, those questions all went 21 up to the time of the exercise.
Did you understand that?
22 A
Yes, I did.
23 Q
Have you at any time subsequent to the exercise 24 have any discussions with anyone from FEMA concerning 25 O
91301010 5987
'cu2Walsh fl[
i whether the exercise, the Shoreham exercise, satisfied A i 2
Appendix E7 3
A No.
4 Q
Now, Mr. Behr, prior to the exercise did you 5
ever have any discussions with FEMA whether this would be a 6
full participation exercise as defined in Appendix E?
7 A
(Witness Behr)
Nothing in reference to Appendix 8
E, just many times in discussions with Mr. Kowieski he kept 9
making the point time and time again that this exercise was 10 going to be no different than any other exercise in Region 11 II-12 Q
Now, subsequent to the exercise, 2/86, have you 13 had any discussions with anyone from FEMA concerning whether uj i4 the Shoreham exercise, satisfied the Appendix E requirements?
s A
No, I had not.
15 g
Q Mr. Daverio, have you had any discussions with j7 anyone from the NRC Staff on whether the Shoreham exercise 18 satisfied Appendix E7 A
(Witness Daverio)
Not to my recollection, no.
39 20 Q
And, that question --
A Before and after, I answered that.
21 22 Q
Thank you.
Same question for you, Mr. Behr.
A (Witness Behr)
No, I have not.
23 Q
And, that was before and after the exercise?
24 A
That's correct.
25
91301010 5988 cu;walsh Q
Mr. Behr, turning your attention to Page 2 of f.D j
i 2
your statement of qualifications, you state there that you were involved -- toward the end of the first full paragraph, 3
that you were involved in federal agency interface 5
activities and in the negotiation of exercise objectives with FEMA.
6 Now, that was for Shoreham, right?
7 (The witness is looking at a document.)
8 A
I believe that that sentence is referring 9
specifically for Shoreham, 10 n
Q What was your role in the negotiation of exercise objectives?
12 A
Primarily as an assistant to Mr. Daverio in his 13 fulfillment of that role, and I just partook in discussions j4 with FEMA relat'ing to the exercise objectives and the 15 o der 16 exercises.
j7 ig I might clarify that a little further to say that part of the reason for me doing that was also to 39 fulfill the role that I was playing as the person who was 20 managing the actual technical design of the scenario itself.
21 l
Q What do you mean by the technical design, the 22 things that were going to go wrong at the plant and the time 23 line for that?
r 24 A
That's correct.
25 1
91301010 5989 suewalsh i
Q Mr. Behr, at Page 2 of the testimony, the middle 2
of the page, you say you have participated in a number of 3
FEMA exercises for other plants.
3 What do you mean by participated?
I asked you 4
5 earlier what you had attended.
What do you mean in this 6
testimony, having participated?
A At those exercises that I had identified, I 7
participated in various roles.
I participated in the role j
g 9
as an observer for either the State or the particular county I was involved in.
I may have just been an unofficial 10 11 observer at some of them.
At others I was involved in, as I 12 mentioned previously, negotiating objectives.
And possibly at one of them I may have been 13 involved as an on-site controller.
I think that was the u
Nine Mile Point 11/85 exercise.
15 Q
And, that was an on-site controller?
16 A
As an on-site controller.
p 18 Q
Now, you go on to state in your testimony that, "This experience provides me with a basis to compare the 39 performance of LERO against the performance of other off-20 site organizations..."
21 What do you mean by performance?
How well LERO 22 did, or do you mean something different?
23 A
I mean basically the performance as described by 24 FEMA in their report.
25 01
91301010 5990 Cuewalsh I
Q Is this performance comparison reflected i
anywhere in your testimony?
2 A
I would say that it's reflected throughout the 3
testimony.
4 JUDGE FRYE:
This particular testimony or other 5
testimony, or both?
6 WITNESS BEHR:
Well, I think in this particular 7
testimony the only way that it's reflected is in what was 8
done and what was not done, not in terms of whether it was 9
done well or not done well.
10 I think in testimony on training we got a little ji bit more to the issue of how well things were done.
12 BY MR. LANPHER:
(Continuing) 13 p
\\
Q Now, in the participation that you described y
several minutes ago, participation in these other exercises, 15 did you have any occasion to determine whether any of those g
exercises satisfied Appendix E full participation?
37 Was that part of your job at any of those?
18 A
No.
But, I had no reason to believe that they i9 didn't.
20 Q
But, you didn't make a conscious determination 21 r attempt to make a conscious determination whether the 22 Appendix E full participation requirement was satisfied or 23 n t?
24 A
No, I did not.
25 O
91301010 5991 cuewalsh I )]
i Q
This is the first time you have ever attempted 2
to do that?
3 A
That's correct.
4 Q
Earlier on Page 2, the second line of the answer 5
which you sponsor, Mr. Behr, you talk about providing consulting services for LILCO on emergency planning issues, 6
you provided those since when approximately, 1983 or '847 7
A I believe I started doing that during the Summer 8
of 1982.
9 10 Q
19827 And,.in the course of those consulting ji services, is it your testimony that this is the first time y u have attempted to interpret the Appendix E requirement 12 for full participation exercise?
i3 A
That's correct.
y Q
Now, the next sentence on Page 2 goes on, "My 15 familiarity with the issues raised...," I take it that the 16 issues you are referring to there are the full participation i7 exercise requirements of Appendix E; is that correct?
18 A
I think the issues I'm referring to are i9 primarily the subparts of the contention.
20 Q
Okay.
Then, none of those other jobs gave you 21 familiarity with Appendix E full participation exercise?
22 A
Only with respect to how FEMA Region II was 23 characterizing full participation exercise.
I don't think 24 in any f the discussions I've had with them in my other 25 OV
91301010 5992 cuewalsh A
(
1 jobs the actual mention of Appendix E came up.
3 MR. LANPHER:
Could I have that answer read 2
back, please?
3 (The Court Reporter read the answer as 4
requested.)
5 i
BY MR. LANPHER:
(Continuing) 6 Q
You said in that previous answer -- you 7
mentioned how FEMA Region II was characterizing full 8
participation exercise.
I thought your previous testimony 9
was that you had never had any discussions with anyone from 10 FEMA concerning full participation exercises.
j, Maybe I misunderstood you, 12 A
I think what I had answered was that we had i
13 never discussed full participation exercise with respect to 14 how it's defined in Appendix E.
15 I have had involvement with FEMA in defining --
g at least, maybe what I was assuming to be full participation g
i exercises at other sites.
ig Q
And, that was your work in negotiating j9 bjectives, what would be done during the exercise; is that 20 correct?
21 A
That's correct.
22 Q
But, there was no express discussion at any of 23 those other sites with FEMA concerning will this satisfy 24 i
Appendix E or will it not?
25 lO
91301010 5993 cuewalsh
( ]
i A
That's correct.
2 Q
Now, gentlemen, again Mr. Behr and Mr. Daverio, 3
at a number of places in your testimony you either cite to 4
or rely on FEMA testimony.
5 Have you discussed that FEMA testimony with those FEMA witnesses?
6 7
A (Witness Daverio)
I have not.
(Witness Behr)
No, I have not.
8 9
(Witness Daverio)
I assume you mean depositions in when you use the word " testimony."
ii Q
No.
I --
A Oh, you mean the testimony filed in this 12 proceeding?
i3 i4 Q
That's correct.
A No, I have not discussed that with them.
15 Q
Well, in addition you cite some depositiour cf 16 FEMA.
You have not discussed those with FEMA either?
j7 18 A
No, I have not.
(Witness Behr)
No, I have not.
39 Q
Have you reviewed all of FEMA's prefiled 20 testimony which was submitted some time in March, their 21 Prefiled testimony which includes the discussion on EX-15 22 and 167 23 A
(Witness Daverio)
I have read all their 24 testimony.
25 G
j 91301010 5994 cuewalsh
!O (Witness Behr)
Yes, I have.
V 1
Q Do you disagree with anything in their 2
testimony?
Just focusing on 15 and 16, EX-15 and 16.
3 1
A (Witness Daverio)
I can't recall anything I 4
disagree with at this point.
5 (Witness Behr)
No.
6 Q
If that answer changes over the course of my 7
examination of you, Mr. Daver.to, I trust you will let me 8
know.
9 A
(Witness Daverio)
Okay.
Yes, I will.
10 Q
Do you recall any disagreements?
ij A
(Witness Behr)
It has been awhile since I read 12 the testimony, and I would have to give the same answer and i3 U
the same commitment, that I will let you know.
j, Q
When you reviewed it -- is it true that you 15 reviewed the FEMA testimony to decide what portions you j,
would either rely on or even quote from in your testimony 37 here?
ig A
(Witness Daverio)
When I reviewed the FEMA y9 testimony, I was reviewing it all because I'm on many of the 20 l
i same issues across the board.
I wasn't looking at it for 21 that specific purpose at that time.
22 Q
Well, isn't it true, Mr. Daverio, that at some 23 point in timo you looked at that testimony for the purpose 24 l
f deciding what portion or portions of it you would rely 25 I
91301010 5995 cuewalsh
( ') j i
upon in your own testimony on EX-15 and 16: isn't that 2
correct?
)
3 A
(Witness Behr)
Well, I can tell you how I I /*
reviewed it.
I picked it up and read it, and when I came 4
t 5
across some things that I thought supported our positions I qf.
6 said why don't we use this.
But, it was not explicitly done 7
for the purpose of finding something that we could u?a.
e <
g Q
Well, you used only those things that you 9
thought you could use, right?
in A
(Witness Daverio)
As we saw with Mr. Miller ji last week, there was selective randomness.
12 (Laughter.)
MR. LANPHER:
Mr. Simon is going to have a good 13 x_) _
time with that.
y BY MR. LANPHER:
(Continuing) 15 Q
Mr. Hockert, would you like to comment on 16 37 selective randomness from your statistical background?
A (Witness Hockert)
No, sir.
ig (Laughter.)
99 MR. LANPHER:
Okay.
20 JUDGE FRYE:
Are you about through with your 21 cross on the qualifications?
22 MR. LANPHER:
Well, I haven't started Mr.
23 Hockert.
I was just consulting -- I was going to go to Mr.
24 Hockert sort of voir dire now or I can do it after lunch, 25 i
l l
91301010 5996 cuewalsh whichever you prefer.
3 JUDGE FRYE:
All right.
Let's take our lunch 2
l break now.
And we will pick that up after lunch.
3 MR. LANPHER:
Very well.
4 (Whereupon, the hearing is recessed for lunch at 5
12:05 p.m.,
to reconvene at 1:35 p.m.,
this same day.)
6 7
8 9
10 11 12 13 O
14 15 16 17 18 19 20 21 22 23 24 25 O
91301111 5997 torysimons
. ( ))
i AFTERNOON SESSION 2
(1:35 p.m.)
3 Shall we go back on the record, please.
4 Whereupon, 5
DENNIS M.
BEHR 6
CHARLES A.
DAVERIO 7
and JOHN W.
HOCKERT g
9 a panel of witnesses called on behalf of LILCO resumed their jo seats at the witness table and, having been previously duly 11 sworn by Judge Frye, were further examined and testified 12 further as follows:
JUDGE FRYE:
We're going to pick up with -- is 13 i
it Mr. Hockert or Dr. Hockert?
y WITNESS HOCKERT:
Either.
15 JUDGE FRYE:
Forgive me.
I've been calling you g
17 Mr. Hockert.
ig MR. LANPHER:
Were you going to issue some rulings?
j9 JUDGE FRYE:
Well, I thought that you had 20 I
indicated that you might be making some more motions after 21 22 you finish this voir dire.
MR. LANPHER:
No, if I said that, I misled you.
23 I think I'll be making some more motions, but not 24 necessarily on the basis of voir dire.
I'm happy to go 25
/
91301111 5998 murysimons ahead with Mr. Hockert right now ---
j JUDGE FRYE:
No, why don't you go ahead.
2 MR. LANPHER:
--- unless you are going to strike 3
all his testimony and then we could save time under the schedule.
5
( LaugMer. )
6 JUDGE FRYE:
All right.
7 8
VOIR DIRE EXAMINATION (Resumed)
BY MR. LANPHER:
9 Q
Mr. Hockert, turning your attention to the 10 ij bottom of page 2 and the top of page 3 of your prefiled testimony you indicate that your familiarity with the issues 12 stems from your work in the emergency planning area over the 13 Od past four years.
Similar to my questions to the other two j,
gentlemen, what issues are you talking about in this 15 testimony?
A (Witness Hockert)
The specific issues that I'm j7 addressing are the need for specific exercise objectives to jg be included in all or some exercises and the extent to which j9 the exclusion of one or more exercise objectives that 20 verall negates or diminishes the effectiveness of an 21 exercise.
22 Q
Now with respect to the various work you 23 describe after that sentence at the bottom of page 2 and 24 continuing on page 3, what work besides the IAEL work 25 l
Ov
91301111 5999 mirysimons
()j i
relates at all to that description of the issue?
2 A
Please clarify what you mean by IAEL work.
All 3
this work has been performed as an IAEL employee.
4 Q
Excuse me, IAEL report, the report that is 5
Attachment L to the testimony.
Thank you for.the 6
clarification.
7 A
The development work in FEMA REP 10 is similar 8
work in the nature of developing a set of acceptance 9
criteria for demonstrating that specific objectives have been met.
io 11 The project to develop criteria for preparation 12 and evaluation of radiological emergency response plans and preparedness for nuclear fuel cycle materials licensees is 13 7-,
k_,]
of course an exactly analogous project for that class of non-y reactor licensee, and in that regard we developed a document 15 and guidance very similar to NUREG 0654 for Sandia 16 97 Laboratories under contract to NRC.
ig Q
You were referring to the nuclear fuel cycle facility work, correct?
39 A
Yes.
20 Q
Now you testified during your deposition that 21 j
22 you weren't going to rely on that work in your testimony here.
Are you changing your testimony?
23 A
I'm not relying on that work for the testimony 24 here.
I'm only pointing out that the experience in that is 25
( -).
i l
l l
91301111 6000 Litrysimons p) relevant and transferable to the IAEL report.
3 Q
Did that work have anything to do with Appendix 2
E to Part 507 3
A Only in the sense that it used it as a model and 4
looked carefully at it to see what parts of it were relevant 5
and appropriate for fuel cycle and by-product material 1
6 licensees.
7 Q
Let me focus my question.
Did any of that work 8
focus on that portion of Appendix E to Part 50 which 9
concerns full participation exercises?
10 A
No, it did not focus on that.
It was a much ij broader scope document.
12 Q
S it looked at other portions of Appendix E, 13 but not the full participation portion?
y, A
That's correct.
15 Q
Now you said that you believed that the REP 10 16 work, the FEMA REP 10 work was -- in that FEMA REP 10 work 37 you didn't develop objectives, correct?
jg A
No.
We developed acceptance criteria.
39 Q
And what was your role on the FEMA REP 10 work?
20 A
I was a major author of the document both REP 10 g
and FEMA 43, the predecessor document in terms of 22 structuring the ideas and requirements in the appropriate 23 f rmat as acceptance criteria and writing them in such a way 24 that they could be effectively evaluated.
25
=,. -
, ~. -.,
91301111 6001 CGrysimons
(")J I
i In addition, I participated in a couple of pilot V
2 evaluations of utilities under sort of a draft of FEMA 43 3
that was prior to the published draft to shake down the 4
methodology and see that things worked effectively.
5 Q
Did you actually personally evaluate siren and l
6 notification systems yourself, or did you rely on data 7
supplied from tests that had been performed?
A I'm not certain what you mean by evaluate the g
9 systems.
Do you mean evaluate the hardware?
in Q
Did you go out in the field, for instance, and ii witness the alert and notification tests?
A No, I did not and was not involved in evaluating 12 the hardware portion of the alert notification system in the 13 b
field.
(/_
y Q
And you've never witnessed a demonstration of 15 it?
16 A
That's correct.
I did not witness a j7 demonstration in the field.
ig Q
Have you ever been present at an exercise for a 39 20 nuclear power plant offsite emergency planning exercise?
A No.
21 Q
Y u said, am I correct, that you were a major 22 author of FEMA REP 107 23 A
Principal author, whatever.
There were about 24 three of us at IAEL that drafted it, and then FEMA of course 25 O
91301111 6002 na.rysimons O
revie ea it a
ee Parepri te ca =se -
i Q
Now you say in your statement of qualifications 2
at page 6 that you supported FEMA's qualifications of alert 3
notification systems in the role of a survey statistician.
4 Can you explain what your role was then?
5 A
Yes, sir.
I derived the criteria starting with 6
the criteria in FEMA REP 10 for the statistical sample 7
size.
I review our contractor's work, Chilton Research, in g
terms of sample selection and determined that their 9
Procedures were appropriate for sample selection.
I 10 calculated confidence intervals based upon the sample data ij that was received.
I dealt with issues as they came up that 12 Were Peculiar to specific sites, situations where the EPZ 13 population was so sparse that we couldn't draw as large a 3,
sample as we would like and situations in which we hnd 15 concurrent utility surveys without our survey and sorted 16 that data out into a statistically sound fashion so that 37 FEM could make an appropriate decision about whether or not 18 an alert notification qualified.
39 I also reviewed the questionnaires that were 20 used for the utilities, at least at the beginning, until 21 they became relatively standardized.
22 Q
This is the questionnaires for sampling the 23 Population whether they had heard sirens?
24 A
Yes, sir.
25 O
91301111 6003 COrysimons
()./
/
i Q
And as part of these alert notification tests, J
2 did this include -- do these tests that you've been involved 3
with, maybe not personally at the test, but from which 4
you're obtaining data, did they involve the participation of 5
emergency broadcast system radio stations?
A Yes.
6 7
Q Is that part of the, shall I say, the standard REP 10 repertoire?
8 9
A As required for a qualification test, yes, sir, 10 a qualification demonstration actually, ti Q
Now you stated that you, and this is at page 3 12 of your prefiled testimony and you altered the testimony, you stated that you managed a project that developed a draft 13 34 guidance memorandum on the ingestion pathway.
Do you see that testimony?
15 A
Yes, sir.
16 p
Q I believe you testified during your deposition tnat the ingestion pathway module in fact was never actually gg prepared.
i9 A
That's correct.
That's one of the reasons that 20 I changed this testimony.
The project was intended to 21 22 develop an ingestion exposure pathway exercise evaluation m dule.
What in fact was done was a draft guidance 23 mem randum was developed.
24 Q
What has happened with that guidance memorandum?
25
91301111 6004 t/arysimons A
It was given to the client at Edison Electric 3
and I honestly don't know what's been done with it since.
2 l
That's one of the disadvantages of working as a consultant.
3 once you turn the deliverable over to the client you lost track.
5 Q
S y u don't know if it has ever been relied 6
upon by anybody?
7 A
No, sir, I do not.
8 Q
Did you rely upon that draft guidance memorandum 9
f r any of the conclusions you reach in your testimony here?
10 A
Not specifically.
Only to the extent that that ij experience again allows me to interpret a little better 12 what's in the guidance memorandum.
Q Well, did that assist you to interpret what nstitutes a full participation exercise?
15 A
Marginally at best and probably not.
g Q
Do you have any reason to believe that it's not 37 feasible to develop a guidance memorandum for ingestion 18 pathway exercises?
39 A
I developed a draft.
So I assume that it is 20 feasible to develop a guidance memorandum.
21 Q
Do you know of any reason why you couldn't have 22 an exercise which tested ingestion pathway actione in a 23 Proposed accident scenario?
24 A
I don't know of any specific reason why those 25
91301111 6005
.ncrysimons
( ]
i could not be tested.
I'm not specifically aware of good 2
guidance for testing those at this point in time.
3 Q
But you don't know any reason why that wouldn't 4
be something that could be achieved?
5 A
I don't know of any reason why it can't be done 6
in theory, no, sir.
7 Q
Mr. Hockert, in your statement of 8
qualifications, the first five pages I believe relate to 9
your work at the NRC in various responsibilities.
Is that to correct?
That's up into July of 1983.
i; A
That is correct, sir.
12 Q
And during that time you had no involvement with offsite emergency planning issues; is that correct?
i3
(,/J 34 A
Other than participation from the NRC side in a few NRC exercises; that is correct.
15 Q
NRC safeguards exercises?
16 A
They were exercises involving safeguards issues 37 ig at nuclear power plants.
Q These were not exercises conducted under i9 Appendix E to Part 50?
20 A
No, sir. They were internal NRC exercises as 21 opposed to licensee exercises and offsite exercises.
22 Q
Mr. Hockert, have you reviewed the offsite 23 emergency response plan for Shoreham?
24 A
No, sir.
25
91301111 6006 merysimons Q
What have you reviewed in preparation for your testimony?
2 A
I have reviewed the joint testimony that LILCO 3
has submitted with emphasis on the report that I prepared, 4
the analysis of the objectives which were or were not part 5
of the exercise and the contentions in that area as to 6
whether or not objectives were met or were evaluated or were 7
part of the exercise.
8 I have also reviewed the intervenor testimony 9
and the FEMA testimony.
10 Q
Have you reviewed the post-exercise assessment ij report by FEMA 7 Do you know what I'm referring to?
12 A
I know what you're referring to.
I reviewed it i3 for a very short time prior to my deposition.
I have not 3,
1 ked at it since.
15 Q
If I recall correctly, at the time of your 16 deposition your review of that FEMA report was cursory at j7 best and it mainly focused on reviewing the list of the ig objectives; is that correct?
39 A
That is correct.
I felt that my time was best 20 spent relying on Mr. Behr and Mr. Daverio who were much more 21 intimately involved in the exercise and relying upon their 22 judgments in terms of whether or not objectives were 23 achieved rather than trying to review a report where I was 24 away fr m the situation and trying to infer data in the 25 O
91301111 6007 r.crysimons
(
-i report.
2 Q
You earlier answered a question in which you 3
said you had not reviewed LILCO's plan for Shoreham.
Let me 4
clarify that.
You haven't reviewed any portions of it?
A That's correct.
5 6
Q And you haven't reviewed any of the procedures either?
7 A
That's correct.
8 9
Q Is it correct to infer that you didn't think in ja presenting the testimony here that it was necessary for you it to have a personal understanding of any portion of the plan?
A For the nature of the testimony I'm sponsoring, 12 I believe that's correct.
13 34 Q
Well, you draw conclusions in your testimony, do you not, that for Shoreham you wouldn't need to test all of 15 the most important objectives, and by most important I mean i
16 g
from the IAEL report which is Attachment L?
Isn't that 18 correct, that's one of your conclusions?
A I draw that as a general conclusion for any
,9 exercise and not specifically for Shoreham.
20 Q
Turning your attention to page 29, Question and 21 Answer 33, 22 A
yes, sir.
23 Q
That answer is not related to Shoreham.
That's 24 just a general statement; is that correct?
25 O
i 91301111 6008 marysimons
(]
A That is a general case which includes Shoreham v
f course as a specific instance.
2 Q
And it includes Shoreham as a specific instance 3
without ever reviewing any of the Shoreham plan?
4 A
That's correct because it's a general 5
proposition that is generally applicable.
6 Q
And you've never developed any objectives for 7
any emergency power plant exercise -- offsite emergency 8
exercise?
9 A
That's correct.
10 Q
And you don't consider yourself an expert in 3,
doing that?
12 A
Not in developing objectives, no.
13 Q
In Question and Answer 36 on page 30 of your testimony, the portion that you offered, Mr. Hockert ---
15 A
yes, sir.
16 Q
--- that answer again is a general answer and 37 not relating specifically to Shoreham?
jg A
That's right.
It's a general answer that j9 includes Shoreham as a special case.
20 l
MR. LANPHER:
Judge Frye, I'm going to move on 21 to other portions of the testimony at this time.
I've 22 already made a motion to strike Mr. Hockert's testimony and g
I don't see any reason to reargue that at this point.
24 25 O
91301111 6009 COrysimons
(/j) i MR. LANPHER:
Whenever you get around to ruling,
~
2 I'll be interested.
3 JUDGE FRYE:
Let me ask you when you had planned to address Mr. Hockert's testimony?
4 5
MR. LANPHER:
I'm going to try to address it tomorrow.
6 7
JUDGE FRYE:
And do you think you can complete it tomorrow?
8 MR. LANPHER:
I made a commitment to Mr. Irwin 9
that I would try.
10 ii JUDGE FRYE:
Good.
MR. LANPHER:
Mr. Irwin and I have already 12 talked about that and I'm hopeful of being able to do that j3 ja and am going to try.
I know there has been a past practice, and I'm 15 not intending to devote more time today to asking questions 16 of Mr. Hockert if there is something else that he wants to 37 18 be doing.
I'm not trying to get rid of him, but it's up to him or LILCO whether they want him to be here to listen.
39 JUDGE FRYE:
Well, I think we are going to admit 20 i
Mr. Hockert's testimony.
I don't want to mess up your l
21 22 scheme of proceeding, but if you could deal with him first, I think it might be helpful in your cross-examination.
23 MR. LANPHER:
Well, I need to consult with 24 someone.
25 b
R.j-l t
2
-,,---.,----~,--m_,. _ _
, - - ~ <. - -
--#-w.- - -
my..-.-
l' 91301111 6010 marysimons n-( )
JUDGE FRYE:
But you may need to do other things first.
2 MR. LANPHER:
I need to and also talk with a 3
number of people about a certain line of questions.
a JUDGE FRYE:
Okay.
5 BY MR. LANPHER:
6 Q
Gentlemen, I want to turn your attention, Mr.
7 Behr and Mr. Daverio, to page 43 of your testimony.
8 9
10 11 12 C:)
11 15 16 17 18 19 20 21 22 23 24 25 O
-91301212 6011 JceWalsh
(]
You state in Answer 52, that a sizeable sample i
2 of exercises has been reviewed.
As I understand it, you 3
reviewed Region II exercises and some exercises in other 4
regions that had similar surrounding population densities.
5 My first question is:
What was your criteria 6
for including in your testimony, particularly Region II exercises?
7 A
(Witness Daverio)
In general, what we were 8
9 trying to do with reviewing both Region II and other jo regions, was to come up with what we felt was somewhat a is national look at how FEMA had run exercises in general.
12 We focused on Region II, and New York State in particular, because that is the region we are in, and it 13 A
(_) _
seemed appropriate to look at those probably -- I don't u
remember exactly -- look at those maybe a little more than 15 in a national scheme to get a feel of how this region was 16 i7 handling exercises in general.
is Q
Am I correct that you tried to identify every Region II full participation exercise?
Strike that 39 20 question, Mr. Daverio.
Who decided which Region II exercises would be included in this testimony?
21 A
Well, it was based on a review that Mr. Millioti 22 did based on our instructions to -- based on time available, 23 review as many Region II reports that he could that were 24 considered to be full participation exercises.
25
91301212 6012 JoeWalsh
{w~J')
Q Who gave Mr. Millioti instructions?
j A
I was one of the people who had discussions with 2
him.
3 Q
Who else?
4 A
Mr. Behr also had discussions with him.
5 Q
Who else?
6 A
And counsel.
7 Q
What were Mr. Millioti's instructions with 8
respect to Region II exercises?
9 A
I think I just stated them; to find as many as 10 he could.
And to, in the time available, review those ji reports for us.
12 Q
Y u stated find as many as you could.
As many 13
()
full participation as you could?
y A
Yes.
His instructions was to look for full 15 Participation.
As we state in our testimony, sometimes you 16 have to interpret some of the FEMA Reports to make a i7 J
determination on full participation.
ig Q
Who made that interpretation?
i, A
Mr. Millioti did.
20 JUDGE PARIS:
Then it was Mr. Millioti who made 21 the mistake of confusing the compensating exercise for a 22 full participation exercise at Indian Point 37 23 WITNESS BEHR:
That is correct, sir.
24 JUDGE FRYE:
Is he an employee of your 25
91301212 6013 JoeWalsh f
organization?
l 2
WITNESS BEHR:
No, he is not.
3 WITNESS DAVERIO:
He is an employee of Impell i
4 Corporation.
i 5
JUDGE FRYE:
Impell.
6 WITNESS DAVERIO:
Which is a contractor to LILCO 7
BY MR. LANPHER:
(Continuing) 8 9
Q Mr. M11110ti decided whether particular Region 10 II exercises were full participation, correct?
4:
A (Witness Daverio)
Yes.
Mr. Millioti is the 12 senior division manager level person within Impell, and we gave him guidelines on what we wanted him to look for, what 13 i4 information we wanted back, and he did the review of the documents for us.
15 Q
I just want the record to be clear.
He was the 16 y
one that decided whether a particular exercise was full 18 participation or not?
99 (The witnesses are conferring.)
A (Witness Behr)
There were not too many of the 20 21 exercises that Mr. Millioti could identify on the face of 22 the report as being either full participation or partial participation.
23 24 And we applied a general assumption in those cases that if it wasn't identified as full participation --
25 O
i
)
i I
91301212 6014 JeeWalsh
( )
or if it wasn't identified as partial participation, that it was full.
2 Q
S is it fair to say that you don't know, in 3
fact, whether these are or were full participation 4
exercises?
5 A
In fact, if you into the FEMA Reports and look 6
for that language, in many of them you cannot find that 7
anguage.
8 Q
Well, have you spoken to FEMA regarding whether 9
they consider these to be full participation exercises?
10 A
We did have some conversations with FEMA to ask them if they were, and I believe that in most of the cases 12 the answer was affirmative.
I don't know that we came up with one that was 15 Q
Who had conversations with FEMA?
A I believe the conversations were between FEMA 37 and counsel, ig Q
So this is counsel's testimony?
j9 A
No, it is not.
20 Q
Y u don't have any personal knowledge about 21 whether these were full participation or not, do you?
22 (The witnesses are conferring.)
23 A
Well, a fair number of the exercises that we 24 1
ked at were first exercises, in which a plant either 25 O
91301212 6015
'JoeWalsh
(
]
obtained an operating license, or was allowed to continue to i
2 operate.
3 So, from the language in the law, we can assume -
-I think it is fair to assume that those were full 4
5 participation.
6 But as to others, I did not have any direct 7
conversations with FEMA.
Q Or with the NRC, correct?
8 9
A I believe that is correct.
I don't recall.
io Q
Did you have any such conversations with either tj FEMA or the NRC, Mr. Daverio?
A (Witness Daverio)
No, I did not.
12 JUDGE PARIS:
When you were anking FEMA about 13
( h
( /-
u whether these were full participation exercises, did you ask them about that Indian Point compensating exercise, and did i3 they tell you it was a full participation exercise?
Or do 16 37 you know?
ig WITNESS BEHR:
Well, I don't know if they were asked.
I could tell from getting into the report the fact 39 20 that only one of the four counties participated in that exercise: that it was not full participation.
21 JUDGE PARIS:
yes, I realize that.
But I 22 w ndered if FEMA overlooked that fact when you were talking 23 with them earlier?
24 MR. LANPHER:
Judge Paris, I think the record is 25 (sT
.,.,n
-.,,,.,---.---.-r-
-.-,n..--.
..-,----..n--
91301212 6016 JceWalsh a little confused.
j These witnesses testified that they didn't speak 2
to FEMA; it was counsel that spoke to FEMA.
3 JUDGE PARIS:
Oh.
Excuse me.
4 MR. LANPHER:
I believe.
Isn't that correct?
5 JUDGE PARIS:
Is that what you said?
6 WITNESS BEHR:
That is correct.
)
7 MR. LANPHER:
You are welcome to pursue it.
I g
JUDGE PARIS:
No, never mind.
9 MR. LANPHER:
Shall we put Mr. Irwin on the 10 stand?
n JUDGE PARIS:
Yeah, we could.
12 13 BY MR. LANPHER:
(Continuing) 34 Q
Mr. Behr, which Region II full participation 15 Y
16 A
(Witness Behr)
I don't recall the exact ones, j7 but I believe there was a Salem exercise, and then Oyster jg Creek, there may have been one other.
39 Q
Why weren't they?
20 A
Simply because they were ones that we had 21 identified after we had finished the work, and submitted the 22 testimony.
23 Q
So, it is your testimony that you didn't 24 identify these at all until after April 6th?
25 O
91301212 6017 JoeWalsh f
i A
That is correct.
2 Q
But you can't recall which ones these were that 3
you identified?
A I only recall that they were -- I believe it was 4
5 one Salem exercise, and possibly one or two Oyster Creek.
6 It may ha'.e been the other way around; it may have been two 7
Salem and one Oyster Creek.
l 8
Q Were these identified again by Mr. Millioti?
9 A
No.
I think they were identified by myself and one of the other witnesses on another contention, because io ii they were also left out of that contention as well.
12 Q
And you are referring to Contention 217 A
No. I am referring to Contention 50.
13 y
Q Is it fair to state that the Region II exercises that were not included in your table were simply not 15 included because they hadn't been identified in time?
16 A
That is correct, yes.
j7 la Q
What was the methodology used to identify the Region II exercises in the first place?
39 A
There was no real methodology used.
My 20 understanding is that those exercise reports that Mr.
21 Millioti reviewed for Region II had been obtained earlier by 22 LILCO, and they were handed over to Mr. Millioti, who was 23 informed these are the Region II reports that we want you to y
- 8VI*"'
25 O-
91301212 6018 JoeWalsh
(
j I don't know if there was an assumption in that that they were all of the Region II, or whether the 2
assumption was it was enough of Region II to be, as we say, 3
a sizeable sample, 4
Q Okay.
Gentlemen, turning your attention briefly 5
to Attachment Q, the first page of it, the Hope Creek 6
October '85 exercise, you include that in your Region II 7
exercises.
Is that a mistake?
a A
That is a mistake, in fact.
It was one, I guess 9
-- I don't recall if it was included in the box, but it i
10
,3 probably was.
This is an issue where the plant itself lies in 12 eg n
wever, the EPZ encompasses both Region II and 13 Region III, and I believe that that exercise report was j,
generated by Region III.
15 Q
S that shouldn't be on the first page of this 16 table?
37 A
Probably shouldn't be, because I believe that ig will disqualify it as a full participation exercise as well.
39 Q
Okay, so that is being deleted.
That is not a 20 full participation exercise?
21 A
It only involved the State of Delaware.
It 22 pr bably should not be.
23 Q
S we are clear on Attachment Q, that is column 24 13, correct?
25 l
91301212 6019 JceWalsh
,hIJ-i A
That is correct.
\\s 2
JUDGE PARIS:
That is to be deleted?
3 WITNESS BEHR:
Yes, sir.
4 BY MR. LANPHER:
(Continuing)
Q Mr. Behr, why didn't you find that before?
6 A
(Witness Behr)
You mean before we just brought 7
it up?
8 Q
Before one minute ago?
9 A
I had found it, and I have to admit that it was 10 just an oversight on me not to bring it up.
I didn't think n
it really mattered, because --
12 Q
Mr. Behr, excuse me.
You didn't think it mattered.
You just admitted that it is not a 'ull i3 34 participation exercise, and this table represents that these are full participation exercises.
15 That is pretty material, isn't it?
16 17 A
I guess it is, but this one would tend to skew the results even further toward Shoreham, is i9 Q
Well, let's talk about that.
It had, without 20 going to the report, it had eight omissions according to --
this isn't your count, this is Mr. Millioti's count, right?
21 A
That is right.
22 Q
S,,not withstanding having eight omissions, it 23 wasn't full participation, correct?
24 A
That is correct.
l 25 1
91301212 6020 JoeWalsh
(]
Q Mr. Behr, do you have any other corrections to j
this table before we go further?
2 A
No, I don't.
3 Q
Material or otherwise.
Let us be the judge, 4
okay?
No more surprises.
3 A
To my knowledge those are -- I would not make 6
any other corrections, no.
7 Q
Well, except you are going to fix the last 8
column for the Judges, right?
9 A
I can do that now -- I have to re-fix it again, 4
10 i
I guess, Q
Before we are done, we might even fix it again.
12 Who knows.
Mr. Behr, you testified before, maybe you, Mr.
33 Daverio, that Mr. Millioti -- strike that.
e were a
ng a u
e eg n II exercises 15 that were included.
The subsequent pages of Attechment Q 16 have tables for non-Region II exercises.
37 How were those exercises chosen?
What were the ig criteria?
I recognize you address that at Page 43 of your y9 testimony, but I want to make sure I understand what your 20 criteria were?
21 (The witnesses are conferring.)
22 A
We did use population as a criteria.
We also 23 told them that it was possible that when he got done with 24 the search he may not find a lot of plants that had the same 25 O
91301212 6021 JoeWalsh i
population density, and we just told him that we wanted him 2
to review as many reports as he possibly could, and to use 3
his best judgment in comparing sites to Shoreham.
4 Q
That is not what your testimony says on Page 43, 5
is it?
I read your testimony on Page 43 as including a 6
population density criterion; that is, that the exercises 7
that are reported on Page 44 of your testimony, the non-Region II ones, excuse me, all those sites had population 8
9 densities similar to the Shoreham density.
10 Am I reading your testimony incorrectly?
ij A
That is correct.
j 12 Q
But are you telling me now that that is, in fact, not correct?
Not accurate?
13 O_,!
I A
In general it is accurate, but you might find a ja site or two where someone tright interpret that the 15 population density is not the same.
16 37 Q
Well, what is the population density for the ten la mile Shoreham EPZ, just approximately?
Either of you gentlemen?
99 A
(Witness Daverio)
The population, we use 20 160,000.
Somewhere between 140,000 to 160,000, depending on 21 winter-summer population.
22 Q
Mr. Daverio or Mr. Behr, is it your testimony, 23 lo king at Page 44, that the population around the Vermont 24 yankee Nuclear Power Plant is approximately the same as 25
91301212 6022 JceWalsh
()
around Shoreham ten mile EPZ7 i
A My recollection was that we probably should have 2
included in our testimony that we also, if he had time, 3
asked him to look at some of the first ones done at some 4
ther sites, initial licensing-type ones.
5 And I think that is where you will find some of 6
the earlier ones without high population densities to be 7
coming from.
In the time frame he had, as Mr. Behr said.
g Q
Is it fair to state, Mr. Daverio, you don't 9
recall exactly what Mr. Millioti's instructions were, do 10 you?
11 A
I recall telling him to look at some of the 12 first sites if he had time, but to focus on the higher
'3
(/)
(_
population density ones.
g The first one was some of the sites who had 15 exercises that were for initial licensing.
3, JUDGE FRYE:
Oh, I see.
37 18 19 20 21 22 23 24 25 d
91301313 6023 cuewalsh
[ 'q;;
r-i WITNESS DAVERIO:
Or, initial drills after 0654
\\_/
2 type.
3 JUDGE FRYE:
It was the exercise which would 4
support a full power license?
5 WITNESS DAVERIO:
That's correct.
BY MR. LANPHER:
(Continuing) 6 7
Q In that last answer with Judge Frye, Mr.
Daverio, it would support full power licensing for keeping g
9 the license if you had previously had an OL?
10 A
(Witness Daverio)
Continuing the license, gi that's correct.
12 Q
Would you agree, Mr. Daverio or Mr. Behr, then that the non-Region II plants that are listed on Page 44 do i3 not all have the similar population densities to Shoreham in ja the 10-mile EPZ?
15 A
Looking at them, some do.
Some have higher and 16 some have Jess.
37 ig Q
So, they are really all over the scale, right?
A I think if you look at it, they probably -- if j,
you did some type of look at the range of them, they 20 probably mostly are focusing on the range of Shoreham's 21 population density but there are a few -- Zion, which has a 22 higher population density, and a few like Vermont Yankee 23 that have less.
That's correct.
24 But, I think in general you could probably say 25 C'1
91301313 6024 cuewalsh they are in the range, the others.
i Q
you know where Calvert Cliffs is, correct?
2 A
Calvert Cliffs is down in the Maryland area.
3 I'm not -- I was just using them as examples.
But, you also 4
have Beaver Valley which has the same population density, 5
Millstone which done, Pilgrim which is outside Boston.
6 So, I think we have got a range here.
That's 7
what I was trying to say.
But, I think there are more in 8
the middle than there are on either ends.
9 Q
your testimony is that the Millstone population 10 n
density is approximately 160,0007 A
I said in the range.
It's less.
But, I think 12 Millstone is in the range -- it's one of the higher population density sites, as I recall.
g JUDGE PARIS:
Could you tell us what the range 15 is?
I see Diablo Canyon in there and I don't --
16 WITNESS DAVERIO:
No.
Like I said, I think the p
Diablo Canyon, the 8/81 exercise and some of the earlier 18 ones, were more towards -- it was their first exercise after 39 either the -- to get license like I think the Diablo Canyon 20 exercise was or to keep a license.
21 I think there are -- it appears from my memory 22 and looking quickly through here -- three or four that I 23 wouldn't say are in the 100,000 people population range g
- numbers, 25 m
91301313 6025 suewalsh
(]
JUDGE SHON:
Mr. Daverio, are you suggesting 2
here that there are none or very few that have both the 3
characteristic that they are high population density and that they are either initial or continuing licensing 4
5 exercises?
6 Are they not virtually all both or what?
Are 7
there just a few of them that have both those characteristics?
8 9
WITNESS DAVERIO:
I think there are a few that have both characteristics.
And, without having the ja ij documentation here, some of the early Beaver Valley --
12 Beaver Valley, as I recall, is in the 100,000 people range j3 around its site or a little higher.
And, that 2/82 drill
(
i4 may have been the initial one for that site after 0654.
I just don't know that.
15 So, there may be a couple on here that meet both 16 of the criteria, Judge Shon.
17 ig JUDGE SHON:
There may be some that meet both the criteria?
i9 20 WITNESS DAVERIO:
That's correct.
JUDGE SHON:
Thank you.
21 BY MR. LANPHER:
(Continuing) 22 Q
Mr. Behr earlier you testified that there were 23 24 relatively few exercise reports in which the exercises were explicitly identified as full participation.
Those weren't 25 D-
--. =
91301313 6026 Cuewalsh O
veer ex ct erde. det 1 ta t reir ca r cteriz tie = or i
your testimony?
2 A
(Witness Behr)
Yes.
I believe that's fair.
3 Q
Do you know which exercise reports -- and, 4
that's basically -- well, you say at Page 43, "Some of the 5
exercises reviewed were explicitly identified as being full 6
participation in the FEMA post-exercise report."
7 Do you know which exercises those were?
8 A
I don't have that information with me right now, 9
but I believe I do have.it.
10 Q
That's information that Mr. Millioti developed?
n A
It was part of the information that he was asked 12 to develop, and I believe I do have that.
13 Q
Is it fair to state that you made the assumption then that unless the report explicitly stated that it was 15 not full participation you assumed that it was?
j3 A
(Witness Daverio)
Well, it --
- 7 Q
I will Give You a chance, Mr. Daverio, just one 18 second.
39 A
(Witness Behr)
It's fair to state that although 20 I w uld point out that the two that did come up today were, 21 l
I don't believe -- ct least, I don't recall seeing words in 22
.ne Indian Point report that explicitly said that it was not 23 full participation.
I think I did see those words, although 24 they may not have used the term "not full participation."
25 O
l
91301313 6027 cuewalsh
(})
They may have used words "did not include the participation 2
of the State of New Jersey and its local counties" for the 3
Hope Creek report.
4 Q
Mr. Daverlo.
3 A
(Witness Daverio)
I think while I understand 6
your question, what you said, I think you a little bit mischaracterized it in that we -- and, as we explain at the 7
8 bottom of Page 43 -- diu use some educated judgment in 9
making that judgment in that we were looking at whether they in were initial licensing exercises to allow a plant to operate in or continue to operate.
12 So, we had some reason to make that kind of judgment I believe.
It wasn't just a shot in the dark type 13 y
judgment that I think you were trying to make it sound like.
If you look at most of those exercises, there 15 was a finding by FEMA to allow a plant to operate, or some 16 kind of finding by FEMA.
And, as I understand Appendix E 37 that would be one to conclude that it was full participation is or fully participating if the plant was not shut down or had i9 20 to stop operating.
Q Do you know whether any of those exercise 21 reports had findings by FEMA under Appendix E to Part 507 22 A
They had findings by FEMA I believe, though I'm 23 not a lawyer, tied to --
24 Q
Well, you've been up there enough.
25 1
1
91301313 6028 Cuewalsh f')
(Laughter.)
3 xs A
-- the 350 process which FEMA gives to NRC, 2
which NRC then if they allow them to operate I assume made a 3
finding under Appendix E.
4 Q
So, you are making the assumption that the NRC 5
made findings under Appendix E for all these?
6 A
No.
I'm making the finding that if a plant 7
continues to operate someone had to decide that they met the 8
regulation.
And, the regulation requires that to occur.
9 Q
But, there is no piece of paper on any of these 10 that says they meet Appendix E, is there?
i3 A
I do not know of a page of paper that says 12 Appendix E, but I think one could draw that conclusion.
13 (x
(,)
Q And, that is the conclusion that you --
34 A
That's correct.
15 Q
-- and Mr. Behr drew?
j, A
And we used that as somewhat of an educated way 37 to decide how to make that decision.
18 JUDGE FRYE:
Are you through with this 39 particular line yet?
20 MR. LANPHER:
Yeah.
I'm going to move on.
21 JUDGE FRYE:
Well, I have a question, then.
22 MR. LANPHER:
Go ahead.
23 JUDGE FRYE:
Perhaps I'm just dense but I'm 24 having difficulty with this testimony at the bottom of 43 25 PJ
91301313 6029 cucwalsh r-( m),
3 and the top of 44.
It says --
2 MR. LANPHER:
Judge --
3 JUDGE FRYE:
-- "Some of the exercises reviewed were explicitly identified as being full participation..."
4 5
MR. LANPHER:
-- we can't hear you too well.
JUDGE FRYE:
I'm sorry.
You start out by 6
7 saying, "Some of the exercises reviewed were explicitly identified as being full participation in the FEMA report."
8 9
That's your first sentence, okay.
to But, then you note that some of the others it didn't specify it apparently.
Okay.
12 Then, you say that if there were exercises which served as the initial licensing exercises you assume they 33 were full participation, which would take care of some of a
those others that you've identified.
But, then you go on to 15 say any others which did not specify licensee only or 16 37 partial were also assumed to be full participation.
18 So, really doesn't that mean that anything that didn't say that it was licensee only or partial was, in 39 fact, full participation so far as your classification was 20 concerned?
21 WITNESS DAVERIO:
I think, as Mr. Behr stated, 22 we also tried to identify if it fell outside a full 23 participation exercise in our eyes, i.e., we didn't use the 24 compensating exercise or have removed the compensating 25 O
Il 91301313 6030 cuewalsh
(
exercise because we knew only one of the four counties j
played and we didn't feel that that could be construed to be 2
full Participation.
3 That was, in my opinion, more of a remedial 4
exercise in response to the March '83 exercise.
5 But, I think in general you are correct.
We may 6
have found a couple of the three, the 8/83 being an example 7
f ne that may not have said partial, may not have said 8
full, but we thought we shouldn't include it anyway, because 9
it in our opinion was not full.
There was only one county 10 jj participating.
JUDGE FRYE:
If I understand you correctly, any 12 report that didn't say that it was licensee only or partial 13 was taken by you to be a full participation exercise.
j, ESS DAVERIO:
I understand Gat's what the 15 testimony says.
It's just that we changed this one --
1/>
JUDGE FRYE:
And, then you may have noticed some i7 that shouldn't have been there later and so you took them 18 out.
y9 WITNESS DAVERIO:
That's how we --
20 JUDGE FRYE:
Specifically the Indian Point.
21 WITNESS DAVERIO:
The Indian Point was the only 22 ne I can think of.
But, that was why I answered the way I 23 did, because I could think of that one.
24 JUDGE FRYE:
And, the Hope Creek I guess.
25
91301313 6031 cuewalsh
(}j j
WITNESS DAVERIO:
And, now Hope Creek was the 2
second one.
That's correct.
3 JUDGE SHON:
I would like to ask one other 4
question, too.
The Indian Point compensating exercise was 5
intended to compensate for something.
It was my 6
understanding, perhaps a misunderstanding, that it was to 7
compensate for the fact that Rockland County had not a
Participated in the March exercise.
9 Is that not correct?
19 (The witnesses are conferring.)
ji WITNESS DAVERIO:
As we recall sitting here, 12 there was some participation of Rockland County.
I'm not 33 sure they fully participated in March either, but that FEMA
). ~
u found that deficient and then they had to do the August '83 drill.
15 So, I thought --
16 37 JUDGE SHON:
So that there is some chance that 18 the March exercise was also in some sense, at least, no-39 full participation; is that correct?
WITNESS DAVERIO:
No.
I think the problem may 20 be -- and we've explained it in our testimony and I think 21 22 FEMA has it in theirs and they have said it in deposition --
a full participation exercise can be one that you fail.
The 23 24 3/83 one they had the deficiency of Rockland County identified, so that the 3/83 was the full participation.
25
/~T v
91301313 6032 cuewalsh The August one was the remedial to correct a deficiency from 3
the full participation.
2 At least, that's how I interpret it.
3 JUDGE Sh0N:
And, the deficiency was that 4
Rockland County didn't fully participate; is that right?
5 WITNESS DAVEitIO:
I believe that was one.
I'm 6
not sure if there were others.
7 JUDGE SHON:
This seems to be a semantic knot.
8 But, thank you.
9 BY MR. LANPHER:
(Continuing) 10 Q
Well, gentlemen, if I could follow up on what ij Judge Shon was just asking you about, there was a lack of 12 pa cipadon in de 3/83 Indian Point, rig m 13 Ob Lack of participation by Rockland, correct?
j, A
ness Davedo)
S h ng here, to de best of 15 my recollection, it was -- I'm not sure that all of Roc,kland j3 didn't participate.
There may have been parts of either 37 their police or fire or someone that did participate partly.
18 I'm stretching my memory at this point, Mr.
39 Lanpher.
But, that's my recollection.
But, most of 20 Rockland did not, as I recall.
21 Q
Doesn't the regulation require for a full 22 participation -- excuse me.
Rockland is within the Indian 23 Point plume exposure planning zone, correct?
24 A
That's correct.
25 O
V-t t
91301313 6033 suewalsh
( ))
Q And, doesn't Appendix E require that for a full 2
participation that each local government within the plume 3
3 exposure pathway EPZ participate?
==
~~
Isn't that part of the definition of --
4
~
5 MR. ZEUGIN:
Objection.
Judge Frye, now we are getting into an issue that really is part of Contention 19 6
which is the legal argument over whether state and local 7
participation is important to make something a full g
9 participation exercise.
JUDGE FRYE:
Well, I think it does ask for a 10 I
ii legal conclusion.
MR. LANPHER:
Gentlemen -- excuse me, not 12 gentlemen, Judges, they have provided testimony that the j3 3/d3 exercise of Indian Point was a full participation ja exercise.
They substituted one exercise for another.
15 I have a right to probe why they think it is and g
whether that makes sense under the regulations.
They have i7 la pined, by the way, under the regulation.
JUDGE FRYE:
They have done what under the 39 regulation?
20 HR. LANPHER:
Opined, give an opinion.
21 JUDGE FRYE:
I see.
22 MR. ZEUGIN:
Judge Frye, I would merely note 23 that the witnesses have already answered that question.
The 24 question that Mr. Lanpher just posed goes to the necessity 25 O
91301313 6034 suewalsh O
or aev1== 1oce a ver==e=t v rticivete "aica ta1=* 1 i
legal conclusion which is Contention 19 in this proceeding.
2 JUDGE FRYE:
Well, I am inclined to agree that 3
it is a legal conclusion.
But, I think it's also legitimate 4
to probe with respect to Mr. Daverio's conclusions with 5
regard to whether or not this was a full participation 6
exercise.
7 MR. LANPHER:
Let me --
g JUDGE FRYE:
I am referring specifically to the 9
fact that --
10
~I MR. LANPHER:
I will rephrase the question, jj Judge.
12 JUDGE FRYE:
All right.
13 MR. LANPHER:
All right.
g BY MR. LANPHER:
(Continuing) 15 I
Q Mr. Daverio, sitting right here today you don't g
know, in fact, whether the 3/83 Indian Point was full j7 participation or not, do you?
jg A
(Witness Daverio)
Based on my opinion and j9 i
recollection of events, I would have classified it as a 20 failed full participation exercise, because FEMA went in 21 with the intention of Rockland County participating.
Since 22 they didn't, they failed the full participation exercise.
23 I think that's a statement FEMA has made in 24 their depositions, and I think it's consistent with my 25 O
91301313 6035 cuewalsh (J' j i
thoughts on the process.
2 JUDGE FRYE:
Do you draw a distinction in your 3
own mind between a full participation exercise that was 4
failed because the county didn't participate and one that 5
does not qualify as a full participation exercise in the 6
first instance?
7 WITNESS DAVERIO:
Yes, I do.
If I -- if you 8
would like me to explain, I draw the distinction that the 9
regulations -- and FEMA and NRC could go in and do a full jo participation exercise even if all the counties were n
participating and still have a failure and issue the 12 requisite 120 letter to fix it or we are going to shut the plant down.
i3
()
y So, you can have a full participation exercise and fail it, in my opinion, and have the same effect of not 15 having a full participation exercise.
16 37 But, I do distinguish between the two.
18 JUDGE FRYE:
I'm not sure I understand your distinction.
39 JUDGE PARIS:
Is the distinction that in the one 20 case they at least tried --
21 WITNESS DAVERIO:
On the one case, you set up 22 the objectives and you set up the scenario and you go in to 23 test all the events you want.
You go in with a list of what 24 you are going to test.
And, you fail the test.
25
91301313 6036 cuewalsh
{}
Therefore, you failed a full participation 3
exercise.
2 JUDGE FRYE:
Because the bus company says:
We 3
are not going to participate?
4 WITNESS DAVERIO:
For whatever the reason.
5 JUDGE FRYE:
Okay.
I think I understand what 6
your distinction is.
7 BY MR. LANPHER:
(Continuing) 8 Q
Okay.
So, Rockland you would put in the 9
classification of a failed full participation, right?
10 A
That's correct.
ij Q
Because Rockland didn't participate?
12 A
Because that's what FEMA went in with as an 33
()
objective, to see if Rockland would participate.
You have j,
t 1
k at the objectives, and I believe that was part of 15 it.
16 Q
It's your testimony that the objectives for 3/83 37 Indian Point said Rockland -- called for Rockland to ig participate?
y9 MR. ZEUGIN:
Judge Frye, I think it would if Mr.
20 Daverio has those reports available.
If Mr. Lanpher really 21 wants an answer, he can certainly review the reports and 22 give him an answer.
23 MR. LANPHER:
I would like to get an answer to 24 i
my question.
We will get into some of these, 25 I
l
91301313 6037 cuewalsh
/L' l JUDGE FRYE:
All right.
Does he have the G) '
2 reports?
3 MR. LANPHER:
No.
Well, I would just like to 4
have him answer -- this is just sort of a little side line 5
right now.
We are going to get into a. lot of these reports 6
later, I'm afraid.
7 MR. ZEUGIN:
Judge Frye, I don't know what we 8
accomplish by having a --
9 JUDGE FRYE:
Yeah.
If you are going to ask him jo the question, let him get the --
n MR. LANPHER:
All right.
12 JUDGE FRYE:
Otherwise, you are going to get an "I don't know."
i3 ja (The witnesses are looking at the documents.)
WITNESS DAVERIO:
As I read the exercise 15 objectives, the -- I will just read the first sentence.
g 37 "The off-site exercise objective was to demonstrate the is response and capability of the state and local governments according to existing plans."
i9 And, they do use the word "Rockland" 20 specifically later down on that page, Page 2 of the report, 21 Mr. Lanpher.
22 23 24 25 I
l i
91200000 6038 acrysimons
[')
MR. LANPHER:
Judge Frye, I'm going to have to 3
come back to that exercise report.
I was prepared to go 2
into the other Indian Point exercise report but with the 3
change this morning in the testimony.
JUDGE FRYE:
I see.
5 BY MR. LANPHER:
6 Q
Gentlemen, you mentioned earlier that you gave 7
instructions to Mr. Millioti to review both Region 2 and non-8 Region 2 non-full participation exercise reports.
9 In terms of these instructions, was he told to 10 just review the reports and come up with some sort of a ji comparison with the Shoreham exercise?
12 A
(Witness Behr)
No.
Well, first, let me clarify 13
(- -
something.
We gave him some criteria to go out and review i,
some reports.
One of his tasks after he had gotten into the 15 process was to identify them as being either full 16 participation or non-full participation where he could.
37 Q
That was one of the criteria?
18 A
That was one of the things he was asked to do.
j9 Q
What were the other things he was asked to do?
20 A
He was asked to review the reports, not in 21 comparison with the Shoreham report, but in comparison to 22 the subparts of the contention.
23 Q
Was there any other instruction that he was 24 g ven?
25 V
l
91200000 6039 mtrysimons
( ]
i A
(Witness Daverio)
Not for this testimony, but 2
for other testimony.
While he was doing this work he was 3
asked to look for a number of demonstrations.
4 Q
That's in connection with ---
5 A
Contention 21.
6 Q
I don't want to get into that at this point.
7 A
Neither do I.
(Laughter.)
g 9
Q Maybe we can shorten some of this stuff later on 30 21, if you'll just indulge me for one moment.
in JUDGE FRYE:
What I'm just wondering, frankly, 12 and I'm speculating in my own mind is it seems more and more that there is a good deal of overlap here and we're taking j3 a
these contenclons up separately because the parties decided that's the way they wanted to do it.
Maybe the parties want 15 to rethink that.
I don't know.
16 MR. LANPHER:
Off the record for a second.
j7 18 (Discussion off the record.)
MR. LANPHER:
Back on the record.
I'm sorry.
39 MR. ZEUGIN:
I think the two contentions raise 20 different issues.
15 and 16 really raises issues of whether 21 the given omission from the Shoreham exercise constituted 22 sufficient omissions to make it something less than a full 23 participation exercise.
24 That is a very different basic issue than what 25
l 1
91200000 6040 mnrysimons
()
is being raised by Contention 21 which deals with the sample i
size chosen by FEMA to draw certain conclusions.
2 There is a connection between the two only to 3
the extent that LILCO feels it is probative in each case to 4
compare what FEMA did at Shoreham to what it does at other 5
plants.
I think that is a relevant way to judge whether or 6
not what it did at Shoreham was appropriate, and that's 7
where -- I think that's the only place where the two a
contentions are really joined.
9 MR. LANPHER:
Judge Frye, the only bit of 10 overlap that I would like to pursue today is to find out if g
Mr. Millioti methodology for review of reports was the same 12 with respect to 15 and 16 as it was with respect to 21, and j
maybe when we get to 21 then it can be shorter.
ja JUDGE FRYE:
Well, I'm inclined to think that it 15 might be worthwhile when we get into these overlaps to 16 develop it now, get a record on it and hopefully our j,
memories will not fade too much by the time we get to 21.
18 Now with the understanding of course that the witnesses may 39 not be prepared to answer the question if we're getting too 20 far into 21.
21 MR. LANPHER:
And I may not be ready to ask all 22 the right questions.
But I think there are some methodology 23 issues that won't get any of us too far down the path.
24 MR. IRWIN:
There may well be in that there were 25 O
91200000 6041 mOrysimons
>l
(}s i
common inquiries taken and there is no point in reading a 2
given report more than once.
3 I will add parenthetically that these gentlemen 4
have not yet had a chance to review their testimony on 5
Contention 1.
Indeed, they had only overnight to review 6
their testimony on Contentions 15 and 16.
As the Board 7
knows, Messrs. Behr and Daverio have been on the stand g
continuously for four weeks now.
9 But with that caveat and also bearing in mind in the distinction between a test and a demonstration, which we it discussed in oral argument this morning, I don't have any 12 objection to probing what Mr. Lanpher calls a methodology, which I might use ancther name for, as to what Mr. Millioti i3 u
did pursuant to the instructions he got.
MR. LANPHER:
May I continue?
15 JUDGE FRYE:
Please.
16 MR. LANPHER:
Thank you 37 VOIR DIRE (Resumed) 18 BY MR. LANPHER:
39 Q
As I understand, gentlemen, you gave two 20 criteria to Mr. Millioti, No. 1 identify what ---
21 (Witnesses conferring.)
22 Let me repeat.
I understand there were two 23 criteria, No.
1, identify whether an exercise was full 24 participation and, second, if it was full participation, 25 O
91200000 6042 mnrysimons
/
review the exercise report against subparts of Contentions
%),
j Ex-15 and 16.
Is that a fair summary of the instructions 2
with respect to 15 and 167 3
A (Witness Daverio)
To the best of my 4
recollection, that's what we asked him to do.
5 Q
Is that what you understand he in fact did?
6 A
Yes.
He went through each of the reports and 7
took notes on the areas that were related to the subparts of 8
15 and 16.
9 Q
And his review was based on the FEMA post-10 exercise assessment reports for each of these exercises?
i, A
That's correct.
12 Q
Did he rely on conversations with personnel at g
various utilities or county governments or state i,
g vernmen s?
15 A
I know of no conversations that he had.
16 Q
So his review was based solely on the face of 37 the FEMA assessment report?
ig A
That's my understanding.
19 Q
Was that your understanding, Mr. Behr?
20 A
(Witness Behr)
Yes, sir.
21 Q
And no other documents?
22 A
(Witness Daverio)
None that I know of.
23 A
(Witness Behr)
Not to my knowledge.
24 Q
An w en y u s notes and hanslated Gem 25
91200000 6043 Carysimons
/'d
'~
i into Attachment Q and also used his notes for your testimony
.V 2
at pages 45 and thereafter did you supplement his notes with 3
any other information?
A (Witness Daverio)
I did not.
4 5
A (Witness Behr)
No, I did not.
6 Q
So the source for all this information with 7
respect to other exercises are Mr. M1111oti's notes?
A (Witness Daverio)
Based on our instructions to 8
9 him; that's correct.
jo Q
And his notes in turn were based solely on the it FEMA post-exercise assessment reports?
12 A
That's my understanding.
Q Do you know what portions of the post exercise 13
()
reports Mr. Millioti relied upon?
Did he just focus on the ja objectives?
15 A
(Witness Behr)
No.
I believe he reviewed the 16 g
entire report.
ig Q
Gentlemen, I would like to ask you to have in 39 front of you both your testimony starting on page 45 and 20 Attachment Q.
21 Now for Members of the Board that may be --
22 unless you've got it in two things ---
JUDGE FRYE:
We'll manage.
23 JUDGE PARIS:
We could tear out Attachment Q I 24 25 guess.
v
i 91200000 6044 marysimons (Laughter.)
j BY MR. LANPHER:
2 Q
Do you have them both available?
3 A
(Witness Daverio)
Yes, I do.
4 Q
The purpose of this inquiry is to make sure that 5
I understand how the discussion in your testimony 6
corresponds with is in Attachment Q.
7 Looking at the answer to question 55 on page 45 g
of your testimony you say, "Of the 34 full participation 9
exercises which we reviewed" -- now, first of all, when you 10 say "we reviewed," that really should be Mr. Millioti n
reviewed because you didn't review the 34, correct?
12 A
(Witness Daverio)
Under our instructions he 13 reviewed them for us; that's correct.
g Q
Y u didn't review them?
15 A
That's correct.
16 Q
Ten did not include a siren test.
Now looking y7 Attachment Q, the first thing it says is sirens.
Am I to ig infer that that means siren test, whether an actual siren 39 sounding test occurred during the exercise?
Is that what 20 that means?
21 (Witnesses conferring.)
22 A
(Witness Behr)
Yes, that's what that means.
23 Q
Now looking at page 45, it says eight exercises I
24 did not include EBS system tests.
25 O
I
91200000 6045 marysimons
()j i
What do you mean by EBS system tests?
I'm 2
directing your attention to page 45 right now, gentlemen.
3 (Witnesses conferring.)
4 JUDGE PARIS:
You don't have to consult in order 5
to answer what is an EBS test, do you?
6 MR. LANPHER:
Well maybe they have to consult to 7
understand what their testimony means, JUDGE PARIS:
Well, that may be, but that wasn't g
9 your question really at this point, was it?
You just wanted io to know what an EBS test was.
I don't see why we can't get ji a quick answer to that.
12 WITNESS BEHR:
I believe what we are talking about there is that we couldn't find any evidence that there 33
()
ja was any attempt to use EBS.
BY MR. LANPHER:
i$
Q Now, Mr. Behr, you say I believe what we are 16 i7 attempting to say here.
You don't know what you're is attempting to say, do you?
A (Witness Behr)
I do know -- I'm trying to 19 recall.
It's been a while since I was involved in this, and 20 21 I've been involved in a lot of other things, and I've got a lot of information in my head right now.
I'm trying to 22 recall exactly what that means.
23 Q
I'm not trying to badger you, Mr. Behr.
I feel 24 a little frustrated there, too, because I'm under a time 25
91200000 6046 csrysimons
]
constraint.
i I just want to know what is mean by EBS system 2
test, and if you don't know or if you're not sure, please
-3 just be honest and tell me that.
4 A
I'm trying to recall what we me. ant by that.
5 JUDGE FRYE:
I think we can understand the 6
adversity under which you have labored these past several 7
weeks.
So if you're having trouble recalling it, don't be 8
tuo ashamed to admit that, because I think we all understand 9
that you've been on the. stand for a long time and have to covered a lot of topics and it may not always be easy to n
remember all of the details of the testimony.
12 MR. ZEUGIN:
Judge Frye, certainly if this is 13 important and something Mr. Lanpher wants to delve into, y,
ver the break or over the evening I'm sure Mr. Behr and Mr.
15 Daverio can probably refresh their recollection on a lot of g
it and will have more time to look at some of the specific 37 language about what Mr. Lanpher wants a specific ig explanation.
j9 MR. LANPHER:
Under normal circumstances, Judge 20 Frye, I w uld be happy to do that.
We're not talking 21 i
l scheduling, but I know what you set with Mr. Miller earlier 22 this week and I'm doing my very best ---
23 JUDGE FRYE:
I appreciate that and I appreciate 24 the constraints that you're laboring under.
25 O
I
91200000 6047 nerysimons
]
i MR. LANPHER:
Frankly, I need to get answers.
2 I'll be real honest and up front.
I need answers to some of 3
this ---
4 JUDGE FRYE:
You've talked with Mr. Miller and 5
you also know that we have been very concerned when 6
witnesses have not been forthcoming with answers for that 7
same reason.
So don't worry.
MR. LANPHER:
I'm not blaming Mr. Behr a bit 8
9 here, and under normal circumstances I would do what Mr.
ja Zeugin said, but I'm planning to prepare some additional 13 cross-examination tonight based upon what I get here and 12 it's going to be real difficult.
If this isn't going to be productive, I'll move on to something else.
I'm happy to, 33 s_,
i, but we'll just have to remember that.
MR. IRWIN:
If I can add just something 15 briefly.
I think that might be productive if what Mr.
16 37 Lanpher wishes to do is go through essentially a line-by-is line analysis of a very detailed table.
These gentlemen have been on the stand 39 20 continuously for four weeks, as I indicated.
They were not scheduled to come on until next week.
We've sought 21 repeatedly to get a firm handle on the schedule.
The Board 22 instructed them to be here today because Suffolk County's 23 witnesses announced that they were not prepared to be here 24 today, notwithstanding the regular rotation.
So I think 25
/~T i
O l
l
91200000 6048 n:rysimons
(
that indulgence, if we could, would be useful.
MR. LANPHER.
Judge, I'm not taking them through 2
all of the exercise reports.
I'm just trying to understand 3
what the terms mean.
I will put off going through the 4
exercise reports in large part today.
5 JUDGE FRYE:
Let me try.
6 Mr. Behr, do you recall whether the EBS test 7
that you are referring to is an actual broadcast?
8 WITNESS BEHR:
No.
I believe that would be Item 9
No.
3.
From the best of my recollection, what we instructed 10 Mr. Millioti to look for where that was concerned was actual i;
mention of EBS messages.
g JUDGE FRYE:
So when you're talking about the 13 k/
EBS system test, you're talking about messages being j,
prepared and simulated to be broadcast?
15 WITNESS BEHR:
From what I can remember, that's the case.
And if upon refreshment of my memory I find cat 37 something different, I'll let you know.
,g BY MR. LANPHER:
39 Q
I'm confused.
Judge Frye asked a question which 20 y u agreed to.
No. 2 on page 45, eight did not include EBS l
21 i
system test meant preparation of a message for simulation.
22 that's not a quote, but that's close.
Is that want you 23 understand that to mean?
24 A
ness Be M aradon of a message and 25 O
1 1
91200000 6049
- murysimons
(]
i activities that go into making the decision to prepare the j
2 message, preparing the message, reviewing the mossage, 3
transmitting the message.
4 Q
To whom, sir?
5 A
To a radio station.
We were looking for some 4
6 evidence that that system was tested.
7 Q
Well, what do you mean by test?' You're looking for some evidence.
Was any evidence ---
8 9
A It was part of the exercise.
j go Q
Let me finish the question.
You said you were it looking for evidence that the system was-tested.
Did_you 12 have to test -- would there need to be evidence of preparation of the message, review of th'e message and i3
(
u transmittal of the message to the radio station in order for that to be a "EBS system test" or-would any one of those 15 things, preparation of the message, review of the message or 16 17 transmittal be enough to constitute the test?
l is A
I think from what I recall of what was done, if-j9 any one of those items was done, then. Item No. 2 would have indicated that they tested the EBS system, l
20 i
Q Well, Mr. Behr, you must just be tired because 21 if you look at Attachment Q and you see the EBS message 22 line, and let's go over to Shoreham.
Now I believe that EBS 23 messages were prepared and were reviewed.
They were not 24 transmitted to WALK Radio though, correct?
25
- (:).
l i
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--,.----,e.,--.
-,,, - ~. - - -. - - -, _ -. -, - -. - - - - - - -
i.
- ./
91200000 6050 c rysimons
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A (Witness Daverio)
That's correct.
i
'i Q
At least one of your criteria was carried out, 2
but on Attachment Q you've got'that doNn as an omission for
~
3 Shoreham, correct?
4 A
(Witness Behr)
That's correct.
5 Q
S your earlier answer couldn't have been 6
ac' urate; isn't that correct?
c 7
A I'm going to have to go back and look at it.
8
..j.
+
JUDGE FRYE:' Are we going down each and every 9
ne1 f these items on pages 45', '4 6, 47, 48 and the top of 10 497 11 l
i MR. LANPHER:
Yes, sir.
12 JUDGE FRYE:
Do you have notes, Mr. Behr and Mr.
13 that would help you refresh your recollection on
- Daverio, i,
- 7 15 WITNESS BEHR:
No, I, den't.
16 WITNESS DAVERIO:
We have notes, but not with y7 l
us.
ig JUDGE FRYE:
,I see.
39 JUDGE PARIS':
So we have decided that your 3,
20
/,
Previous definition o,f 'EBS, system test must not be correct 21 because you have a "No" entered for Shoreham and it was 22 certainly done there.
That's what you just described.
Is y
that right?
24 WITNESS BEHR:
Apparently that's right.
25 Ot
^~
s-
I 91200000 6051 marysimons
'} j i
JUDGE FARIS:
So we don't know what EBS system 2
test means.
3 WITNESS BEHR:
I don't recall at this point.
4 MR. ZEUGIN:
Judge Frye, I just don't see how 5
this is productive.
I mean the witnesses obviously ---
6 JUDGE FRYE:
I think we're going to have to get 7
the witnesses' notes if we are going to pursue this line.
Otherwise I think we're spinning our wheels.
8 9
MR. IRWIN:
These gentleman have been trying to jo accommodate an absolutely beastly schedule and, frankly, I it think it would be useful to give them the evening if we want 12 to have detailed questioning on this table to review it.
And if Mr. Lanpher has his questioning organized, which I'm
(]/_
33 sure he does ---
u JUDGE FRYE:
Well, he obviously has it extremely 15 well organized.
16 37 MR. IRWIN:
--- he can proceed to another is subject this afternoon.
I would really appreciate it.
I 19 mean we had planned on being on next week.
As the Board, 20 we've made repeated efforts to be some certainty about the schedule for exactly this reason.
If Mr. Lanpher can move 21 22 on to another subject other than this table, I think that w uld be useful and we'll hopefully be prepared on it 23 tomorrow.
24 25
/)
%)'
. = _.
91301515 6052 JoeWalsh O
JUDGE FRYE:
You have got Dr. Hockert tomorrow.
-V 1
MR. LANPHER:
Well, Dr. Hockert is not going to 2
take all day.
I am going to be up front with you again, 3
Judge Frye.
If I can't pursue this today --
4 JUDGE FRYE:
I understand your position.
5 MR. LANPHER:
-- I'm not going to be able to get 6
through the exercise reports that I think are pertinent y
tomorrow, because I won't know what to ask.
And, I can't do 8
that Monday morning.
9 So, our w nderful schedule is going to go out 10 the window, and maybe that's the way it is.
I hear 3;
everything that Mr. Irwin is saying but just -- weII, it's 12 too much water over the dam on all this scheduling stuff.
13 I will move on to another area if that's what j,
y u want.
And, I think I've got no choice frankly, because 15 we are g ing to spend --
16 JUDGE FRYE:
It seems that there is no choice, j7 because I don't think you are going to get answers to these, 18 going down these charts because they are not going to be y9 able to recall.
20 MR. LANPHER:
Yeah, and I can't cross-examine 21 about this unless I know what they mean.
That's all.
22 JUDGE FRYE:
Yeah.
23 MR. LANPHER:
And, they are tired and maybe they 24 are n t going to be able to do it tonight.
It may be tough,
[
25
91301515 6053 JoeWalsh I
ggj because --
i 2
JUDGE FRYE:
We have been going an hour and a 3
half.
Let's take our 15 minute break at this point, and we 4
will come back and I would think we will probably want to 5
move on to a new topic at that point.
6 (Whezeupon, a recess is taken at 3:00 p.m.,
to 7
reconvene at 3:15 p.m.,
tnis same day.)
JUDGE FRYE:
Let's go back on the record.
We 8
9 have got some questions, Mr. Behr and Mr. Daverlo.
in Who actually wrote the testimony?
ii (The witnesses are conferring.)
12 WITNESS BEHR:
The testimony was written primarily by myself and Mr. Daverio and was edited and j3
]
a reviewed by many people.
There were various drafts of it that we reviewed before it was finalized.
15 16 It was a long process, but I think, you know, we j7 sponsor it as having written it.
ig JUDGE FRYE:
The reason I asked that question j9 was because my recollection, which I guess is in error, was 20 that you had said earlier that you had not written it but that it had been prepared under your supervision.
21 WITNESS BEHR:
There were portions of
.1+
that I 22 did write, okay.
But, if I go back and analyze what I 23 24 riginally wrote and what exists right now, you know, you are not going to find -- you know, it has been reorganized, 25
91301515 6054
-JoeWalsh it has been edited.
j And, that's why I think the characterization 2
that it was written under our supervision is probably the 3
most accurate one.
4 WITNESS DAVERIO:
I've only -- I reviewed it and 5
may have added sentences and comments across it, but I don't 6
claim that I've written anything.
I hold to my earlier 7
testimony.
g I think that's obvious when we said that 9
- earlier, 10 JUDGE PARIS:
Well, Mr. Behr, did you write Page jj 457 Do you know?
12 (The witness is looking at the document.)
_33 JUDGE PARIS:
Or, the answer to Question 55, let 14 me put it that way?
Or, did somebody else write that?
15 WITNESS BEHR:
I don't think I was the author of 16 it, but I did review it.
j7 JUDGE PARIS:
Okay.
18 I
JUDGE FRYE:
This strikes me as the kind of j9 testimony that you might well have someone prepare for you, 20 because it's bean counting to a certain extent, you know.
21 I
Ten doesn't do this and eight doesn't do that.
22 WITNESS DAVERIO:
These exact numbers come out 23 of the work that Mr. Millioti did for us.
24 JUDGE FRYE:
I see.
25
!O M
91301515 6055 JoeWalsh
')j WITNESS DAVERIO:
He counted the beans, as you
/
i 2
say.
And, the only problem we were having, the particular 3
one about the EBS system, we couldn't recall the specific definition he used when he counted them.
4 5
JUDGE FRYE:
What we are wondering is whether we i
6 really need to have Mr. Millioti here in order to understand what he has done.
7 (Pause.)
8 WITNESS DAVERIO:
Oh, is that a question for me?
9 JUDGE FRYE:
Basically, yes.
ja 13 JUDGE PARIS:
No one else seems to want to answer.
Go ahead.
12 (Laughter.)
33 6(_/_
WITNESS DAVERIO:
I was waiting for the pause to ja be --
15 MR. LANPHER:
Judge, I'm not sure that's a 16 37 proper question.
I'm going to object to your question to these witnesses.
18 I think, you know, LILCO had its chance to j9 sponsor witnesses that were knowledgeable, and I'm willing 20 to indulge them because of their tiredness and all that.
I 21 really don't belittle them.
They have been I think very 22 forthcoming today in attempting to answer questions and that 23 sort of thing.
24 But I, too, think we have the wrong panel here.
25 O.
91301515 6056 JoeWalsh And, I'm going to probe that further.
I don't think we have 3
the right sponsors.
And, I'm not sure that some of this 2
testimony should stay in once I'm through with it.
3 And, so I object to the suggestion of bringing 4
in Mr. M1111oti.
Tbey've had their chance.
And, if he did 5
all this work, why the heck isn't he here?
That was a 6
conscious decision obviously.
Maybe we are getting ahead of 7
8 MR. IRWIN:
I think we may be both ahead and 9
behind ourselves, to If Suffolk County hadn't unilaterally announced y3 last Friday that it was not going to provide witnesses on 12 the schedule which had been laid out and understood by g
people, these gentlemen would have had a few days to prepare v
i, f r detailed questioning of the kind they are getting 15 Y'
16 They are doing their best to comply with the 37 18 schedule which the Board ordered and which they are doing their best on.
39 They are answering questions and, of course, 20 LILCO has the discretion to choose witnesses whom it 21 believes to be knowledgeable.
And, these gentlemen are, if 22 n thing else in the world, very knowledgeable.
23 JUDGE FRYE:
Well, the Board --
24 MR. IRWIN:
This exercise is one which requires 25
91301515 6057 JoeWalsh
/5 refreshment of a recollection as to a detailed methodology, i
L)'
2 because that's the kind of questions they are getting.
We 3
are asking for an overnight opportunity which they frankly haven't had to do that.
4 5
And, I do not believe that Mr. Millioti is 6
necessary to this panel.
I definitely disagree with Mr.
7 Lanpher that these are not the right gentlemen to testify on this issue.
g 9
What they do need, and should have, is enough 10 time to get some rest and an opportunity to review their I
li testimony before being subjected to microscopic examination of --
gg JUDGE FRyE:
Well, let me remind you that the j3
(~)
(_,, _
y reason we adopted the schedule that we adopted is because of LILCO's anxiousncss and, to a certain extent, our own 15 anxiousness to get through this proceeding as quickly as we g
,7 can.
ig On the other hand, I think it may have been counter-productive.
It certainly appears to be counter-39 productive to ask these witnesses to have come on this 20 quickly.
21 Now, I suppose at this point about all we can do 22 is give them the rest of the evening to refresh their 23 recollection and see how they go.
I think in saying that, 24 too, Mr. Lanpher, that it appears obvious that our schedule 25 fJ l
1
91301516 6058 JoeWalsh is not likely to be met based on what's happening so far.
MR. LANPHER:
I am going to do my best.
I --
2 JUDGE FRYE:
I'm not criticizing you at all on 3
the way that you have conducted your examination.
I think that has certainly been very businesslike.
5 S
I w uld suggest we give these witnesses the 6
rest of the afternoon and this evening to refresh their 7
recollection, and we will see how it goes tomorrow.
And, if a
it doesn't -- and, you know, if that's not enough time --
9 and I'm not holding this against them -- if you think you 10 need more time, then I think we will just take more time.
ij MR. IRWIN:
I think thai. 's a sensible --
12 JUDGE FRYE:
This is an extremely important 13 l
\\
issue, and it's an issue of first impression.
And this one j,
in particular we want to be sure that we get a record that 15 we can rely upon.
g MR. IRWIN:
I think that's a sensib.le p
suggestion.
And,. let us see whether we can get these jg gentlemen reviewed and rested enough over one even.ng that j9 they can be ready tomorrow.
We appreciate that.
20 We als nce they get their sleep, are prepared 21 to go as long as is necessary because, as we know from 22 previous sallies at this schedule, if we miss much of a 23 click on this thing we are going tc start missing more than 24 a
ck, we are going to miss a big jump in time.
We would 25
91301515 6059 JoeWalsh
[lj i
be getting past the 4th of July and that's a matter which we
%_J 2
would just as soon not have to face.
3 JUDGE FRYE:
Well, I certainly don't want to be here then.
But, I think there is a strong possibility.
I 4
5 think we may have missed the click already.
6 MR. LANPHER:
Judge, when then are you planning 7
to rule on these motions that are pending?
Are you going to be able to rule this afternoon?
8 9
JUDGE FRYE:
Yes.
I don't know why we can't jo rule on that this afternoon.
MR. LANPHER:
Or later, if you want to do it, I 12 can stay around.
But obviously for cross-examination j3 preparation purposes I would like to know.
And, if you are
()_
i4 going to strike any of the governments' testimony I_want to know that, because that for obvious reasons is going to 15 change my cross-examination.
16 g7 So, if we are taking time to prepare I'm sure it jg will help LILCO as well as us.
JUDGE FRYE:
I think that's a reasonable j9 20 request.
Let's see what we can do here.
MR. LANPHER:
But, if you want -- you know, we 21 22 can come back at 4 o' clock if you want.
JUDGE FRYE:
We are not -- I think it's safe to j
23 say -- and would my colleagues correct me if they think I'm 24 in error -- that we are denying the motions, both of them.
25 f
~ ~ > -
i c - ---,,,
n.- - - -, - -.... -.., -. - - - - -.. _,, - - - - - -
~. -.,.. ~ -. -.
. - - ~,
91301515 6060 JoeWalsh Now, let me see if there are exceptions to that.
j (Pause.)
2 We are denying the motion to strike LILCO's 3
reliance on the Staff's deposition testimony on the 4
understanding that Staff is going to have witnesses present.
5 MR. PIRFO:
As long as you brought that up, 6
Judge Frye, I want to make sure the Board understands my 7
representation.
We -- Mr. Schwartz and Mr. Weiss are 8
certainly still employed with the NRC and thus still 9
available.
Whether the EDO, in his --
10 JUDGE FRYE:
I'm not trying to tell the EDO who ij to provide, you know.
12 MR. PIRFO:
I understand.
13 JUDGE FRYE:
Now, I can see that could create a 3,
Problem if the EDO selects not -- or decides not to provide 15 Mr. Schwartz and Mr. Weiss.
So, if that's going to be the 16 case let's find out about that as quickly as we can.
37 MR. PIRFO:
Well, indeed, I have already alerted 18 the office and that process is underway now.
But, I just 39 want to reiterate it here now so --
20 JUDGE FRYE:
Okay.
21 MR. PIRFO:
-- the Board didn't have the 22 impression that I was representing that Mr. Schwartz and Mr.
23 Weiss would be the witnesses.
24 JUDGE FRYE:
No, we didn't.
We understand that.
25
91301515 6061 JoeWalsh g]
i MR. PIRFO:
Okay.
2 JUDGE FRYE:
Although we assumed I suppose that 3
they would be the ones.
4 MR. PIRFO:
Well, I think that's a fair 5
assumption that that probably will be the case.
JUDGE FRYE:
The objection to the Question and 6
Answer 16 is denied.
We thought that was really a nit-pick.
7 The objection to the testimony of Dr. Hockert is g
denied.
I think we have been convinced that we need that 9
sort of information in the record.
10 ii The hospital testimony we believe is background and is not stricken.
~
12 The same is true of the other testimony on the 13
]
Suffolk County motion.
34 MR. LANPHER:
Judge, you did not deal with the 15 aft g d ance memoranda.
16 JUDGE FRYE:
It's denied.
We are going to let j7 that in.
ig Gentlemen, I don't see any need for you to 39 remain here.
I'm sorry to have kept you.
20 (The witnesses are excused.)
21 JUDGE FRYE:
We are denying the motion to 22 disqualify the witnesses that LILCO has made.
23 And, we had quite a bit of discussion about the 24 portion of the LILCO motion that deals with some of the 25 GJ l
91301515 6062 JoeWalsh g
Suffolk testimony going beyond the scope of Contentions EX-3 15 and 16, and I think it's safe to say that while we are 2
denying that portion of the motion we are doing so on the 3
understanding that, in fact, suffolk is not seeking to 4
dem nstrate the test results versus objectives demonstrated 5
-- I'm sorry, not seeking to demonstrate the exercise 6
objectives tested as opposed to the objectives that were 7
0'"***
8 In other words, the --
9 MR. LANPHER:
We are not trying to prove that it 10 failed.
JUDGE FRYE:
That any particular objective 12 resulted in a failing mark.
The only question is whether it 13 was tested, okay.
3, MR. LANPHER:
And, the extent to which it was 15 tested.
g JUDGE FRYE:
That's the next one.
Well, all j7 right, I agree with you.
And, the extent to which it was 18 tested.
39 The same thing is true with regard to B on Page 20 24, that we are not interested in the merits of the FEMA 21 review.
What we are interested in is the extent to which 22 FEMA observed that things were tested.
23 References to FEMA guidance memoranda post-24 dating the exercise, we are denying.
References to 25 9
91301515 6063 JoeWalsh
(]
i Contention 20 -- that is very minimal, and that's denied.
2 We have already discussed the duplication with 3
Contention 21, and I think we are just going to have to deal 4
with that as we go along.
5 Now, the structure of the LERO organization in 6
general denied, but again I think, as LILCO points out, this needs to have it tied to Contentions 15 and 16.
We don't 7
intend to consider it without such a tie.
g 9
Is that helpful?
Probably not.
3o MR. LANPHER:
It's certainly clear.
\\
13 JUDGE FRYE:
Well, if it's clear, that's 12 something.
13 We will be adjourned until 9 o' clock tomorrow fx
(_,)_
morning.
y MR. IRWIN:
Thank you, Judge Frye.
15 MR. LANPHER:
Thank you.
16 j7 (Whereupon, the hearing was adjourned at 3:30 is p.m.,
Wednesday, May 13, 1987, to reconvene at 9:00 a.m.,
19 Thursday, May 14th, 1987.)
20 21 22 23 24 25 O
CERTIFICATE OF OFFICIAL REPORTER O
This is to certify' that the attached proceedings before the' UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of:
NAME OF PROCEEDING:
LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
DOCKET NO.:
50-322-OL-5 (EP Exercise)
PLACE:
HAUPPAUGE, NEW YORK DATE:
WEDNESDAY, MAY 13, 1987 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
(s (TYPED)
GARRETT J. W LSH Official Reporter ACE-FEDERAL REPORTERS, INC.
Reporter's Affiliation s'
Oj A
MYRTLE S.
WALSH N
MARY C SIMONS