ML20151C638: Difference between revisions

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                                                                                                   ....,........ ,.              8358 James P. Gleason, Chairman                                                        BY TELECOPIER Dr. Jerry R. Kline Mr. Frederick J. Shon Atomic Safety and Licensing Board East-West Towers 4350 East-West Highway Sethesda, Maryland                  20814 Shoreham EBS Issues Gentlemen:
                                                                                                   ....,........ ,.              8358 James P. Gleason, Chairman                                                        BY TELECOPIER Dr. Jerry R. Kline Mr. Frederick J. Shon Atomic Safety and Licensing Board East-West Towers 4350 East-West Highway Sethesda, Maryland                  20814 Shoreham EBS Issues Gentlemen:
Yesterday, LILCO served Revision 10 to r.he Shoreham Offsite Emergency Plan on the Board and all activo parties to this pro-caeding by Federal Express.                          The contents of Revision 10 are synopsized in the covering letter and matrix secompanying it.
Yesterday, LILCO served Revision 10 to r.he Shoreham Offsite Emergency Plan on the Board and all activo parties to this pro-caeding by Federal Express.                          The contents of Revision 10 are synopsized in the covering letter and matrix secompanying it.
One aspect of Revision 10 relevant to the current proceed-ings is a modification of the Emergency Broadcast System to ac-count for the change in status of radio station WPLR, of which LILCO had notified the Board by letter dated May 16, 1988.
One aspect of Revision 10 relevant to the current proceed-ings is a modification of the Emergency Broadcast System to ac-count for the change in status of radio station WPLR, of which LILCO had notified the Board by {{letter dated|date=May 16, 1988|text=letter dated May 16, 1988}}.
History has indicated that an agreement-based special ESS network is vulnerable to political opposition. Accordingly, Revision 10 shifts primary reliance for EBS coverage for the shoreham Emergency Planning Zone from an agreement-based system tailored for 8horeham to the official New York State EBS plan.
History has indicated that an agreement-based special ESS network is vulnerable to political opposition. Accordingly, Revision 10 shifts primary reliance for EBS coverage for the shoreham Emergency Planning Zone from an agreement-based system tailored for 8horeham to the official New York State EBS plan.
That plan designates the Nassau and Suffolk Counties as a dis-tinct EB8 operational area and establishes a 30-station Long Is-land network anchored on WCBS in New York City. In the event of a radiological emergency at Shoreham, LILCO would utilize the New York State plan to enlist the assistance of the Suffolk County Executive or, in the alternative, New York State, in activating this EBS.              That cooperation would be presumed under the realism principle codified 10 CFR 5 50.47(c)(1).
That plan designates the Nassau and Suffolk Counties as a dis-tinct EB8 operational area and establishes a 30-station Long Is-land network anchored on WCBS in New York City. In the event of a radiological emergency at Shoreham, LILCO would utilize the New York State plan to enlist the assistance of the Suffolk County Executive or, in the alternative, New York State, in activating this EBS.              That cooperation would be presumed under the realism principle codified 10 CFR 5 50.47(c)(1).
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                                                                                                                                                                                                                             .< a .., o % ... * ** ' *
                                                                                                                                                                                                                             .< a .., o % ... * ** ' *
* 7 2 5 0 By Telecopy_and_By Hand Michael J. Missal, Esq.                                                                            Richard J. Zahnleuter, Esq.
* 7 2 5 0 By Telecopy_and_By Hand Michael J. Missal, Esq.                                                                            Richard J. Zahnleuter, Esq.
Kirkpatrick & Lockhart                                                                            Assistant to Special Counsel to South Lobby - 9th Floor                                                                                      the Governor 1800 M Street, N.h.                                                                                State Capitol Washington, D.C.                                        20036-5891                                Albany, New York 12224 EBS Discovery Dear Mike and Rick We received Mike Missal's June 10, 1988 letter regarding EBS discovery over the weekend. As we stated last week and I confirmed in my letter to Messrs. Lanpher and tahnleuter on June 10, we disagree with your interpretation of the Board's order reopening EBS discovery.                                                                The Board's May 26, 1988 bench ruling gives no indication that the reopened EBS discovery period was to be a one-way street, as counsel for Suffolk County now maintains:
Kirkpatrick & Lockhart                                                                            Assistant to Special Counsel to South Lobby - 9th Floor                                                                                      the Governor 1800 M Street, N.h.                                                                                State Capitol Washington, D.C.                                        20036-5891                                Albany, New York 12224 EBS Discovery Dear Mike and Rick We received Mike Missal's {{letter dated|date=June 10, 1988|text=June 10, 1988 letter}} regarding EBS discovery over the weekend. As we stated last week and I confirmed in my letter to Messrs. Lanpher and tahnleuter on June 10, we disagree with your interpretation of the Board's order reopening EBS discovery.                                                                The Board's May 26, 1988 bench ruling gives no indication that the reopened EBS discovery period was to be a one-way street, as counsel for Suffolk County now maintains:
JUDGE GLEASON:                                        Why don't we resolve, at least currently, and provide an opportunity for parties to have discovery with respect                                                                                                                                            -
JUDGE GLEASON:                                        Why don't we resolve, at least currently, and provide an opportunity for parties to have discovery with respect                                                                                                                                            -
to whatever it is you are proposing.
to whatever it is you are proposing.
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Those depositions, while we don't have any agreement as to when they will be conducted, ha-ve been noticed for the week of June 6th, during the exercise, so we would hope to,be able to complete some of our discovery or the discovery we need within the June 13th time frame.
Those depositions, while we don't have any agreement as to when they will be conducted, ha-ve been noticed for the week of June 6th, during the exercise, so we would hope to,be able to complete some of our discovery or the discovery we need within the June 13th time frame.
T r '. 20,667.                                    The State and County persons noticed by LILCO may have knowledge of the technical adequacy of the state Ess.
T r '. 20,667.                                    The State and County persons noticed by LILCO may have knowledge of the technical adequacy of the state Ess.
Suffolk County and the State of New York failed to produce any of the deponents whom LILCO noticed on EBS issues for the week of June 6-10.*/ Instead, in a letter from Mr. Lanpher to me dated June 3, Suffolk County proffered available dates for Richard Jones, County Radiological Division, and John Bilello, Deputy Director, Emergency Preparedness Divison, of June 15, and June 16, respectively.                                                  In response to LILCO's notice of deposition of G. Berkeley Bennett, Mr. Lanpher stated that Mr. Bennett works with Messrs. Jones and Bile 11o at the Emergency Preparedness Division and represented that "(a) deposition of Mr. Bennett would be repetitive and redundant given the Jones and Bilello depositions. They should be able to respond to'all questions." Mr. Lanpher further noted that "I do not yet have any date for Mr. Randolph.                                                    I will contact you about that as soon as possible." Then, in a letter dated June 6, 1988 from Richard Zahnleuter to Donald P. Irwin, Mr. Zahnleuter indicated that Mr. Silverman could be made available on June 17 with the REPG panel, but not separately as LILCO had requested.
Suffolk County and the State of New York failed to produce any of the deponents whom LILCO noticed on EBS issues for the week of June 6-10.*/ Instead, in a letter from Mr. Lanpher to me dated June 3, Suffolk County proffered available dates for Richard Jones, County Radiological Division, and John Bilello, Deputy Director, Emergency Preparedness Divison, of June 15, and June 16, respectively.                                                  In response to LILCO's notice of deposition of G. Berkeley Bennett, Mr. Lanpher stated that Mr. Bennett works with Messrs. Jones and Bile 11o at the Emergency Preparedness Division and represented that "(a) deposition of Mr. Bennett would be repetitive and redundant given the Jones and Bilello depositions. They should be able to respond to'all questions." Mr. Lanpher further noted that "I do not yet have any date for Mr. Randolph.                                                    I will contact you about that as soon as possible." Then, in a {{letter dated|date=June 6, 1988|text=letter dated June 6, 1988}} from Richard Zahnleuter to Donald P. Irwin, Mr. Zahnleuter indicated that Mr. Silverman could be made available on June 17 with the REPG panel, but not separately as LILCO had requested.
                   */            John Randolph, June 7; G. Berkeley Bennett, June 7; and Marvin Silverman, June 9 4
                   */            John Randolph, June 7; G. Berkeley Bennett, June 7; and Marvin Silverman, June 9 4
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Latest revision as of 06:34, 11 December 2021

Response of Suffolk County,State of Ny & Town of Southampton in Opposition to Lilco Second Motion for Summary Disposition of Emergency Broadcast Issue.* Certificate of Svc & Supporting Documentation Encl
ML20151C638
Person / Time
Site: Shoreham File:Long Island Lighting Company icon.png
Issue date: 07/12/1988
From: Latham S, Missal M, Palomino F
KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:
Atomic Safety and Licensing Board Panel
References
CON-#388-6768 OL-3, NUDOCS 8807220072
Download: ML20151C638 (120)
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'88 JL 14 p5 :28 July 12, 1988 UNITED ST f0F.hMERICA NUCLEAR REGULATORV<tEOMMISSION Before the Atomic Safety and Licensina Board

)

Ir. the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power )

Station, Unit 1) )

)

RESPONSE OF SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON IN OPPOSITION TO LILCO'S SECOND MOTION FOR

SUMMARY

DISPOSITION OF THE EBS ISSUE I. Introduction Suffolk County, the State of New York, and the Town of Southampton (the "Governments") hereby respond to LILCO's Second Motion for Summary Disposit-lon of the EBS Issue, dated June 20, 1988 ("LILCO's Motion"). LILCO is once again using a motion for summary disposition as a vehicle both to introduce a new and significantly different Emergency Broadcast System ("EBS") scheme and, at the same time, is attempting to foreclos'a any meaningful 8807220072 080712 PDR ADOCK 05000322 G PDR 3 60

scrutiny of the details of that scheme. As with LILCO's prior attempt to obt.ain summary disposition of its previous EBS pro-posal,l/ this attempt must similarly fail.

In fact, there are even more reasons for denying LILCO's latest attempt for summary disposition of the EBS issue than was the case with LILCO's last attempt. LILCO's Motion outlines an EBS proposal that not only has not been the subject of analysis or review, but is materially different in every way from the proposal that has previously been before the Board and the other parties to this proceeding. The EBS proposal that is outlined in LILCO's Motion initially relies on the New York State EBS net-work, rather than LILCO's own EBS network, to broadcast emergency information to the public. More particularly, LILCO is now relying on WCBS-AM (New York, New York), rather than WPLR-FM (New Haven, Connecticut), to serve as its lead EBS radio station; according to LILCO, WCBS will activate the State EBS, even though WCBS has not agreed to do so, or to participate in any way in the implementat3on of LILCO's Plan. L" mO's new EBS proposal there-fore envisions a new lead station that has not agreed to partici-pate. It also involves a revised network of secondary broadcast stations, and relies upon two new stations--- WCBS and WALK --

rather than WPLR to activate the tone alert radios that have been, or will be, installed by LILCO at special facilities throughout the Shoreham 10-mile EPZ.

1/ LILCO's Motion for Summary Disposition of the WALK Radio Issue, dated November 6, 1987.

LILCO's latest EBS proposal leaves many questions una-nswered, including the continued participation of its previous lead EBS station, WPLR, and the role, if any, to be played by its local or backup EBS network for Shoreham. LILCO's Motion - also raises questions concerning the adequacy of the coverage of LILCO's supposed new lead station, WCBS; moreover, there is the question whether WCBS will even participate in the implementation of LILCO's Plan. What is known is that, to date, WCBS has not agreed to participate. Nonetheless,- despite all these out-standing issues and questions, and others that are addressed below, LILCO cavalierly asks the Board to close its eyes to these matters, and to dispose summarily of the EBS issue. This is something the Board cannot do, for the many reasons discussed below.

LILCO bases its Motion on several factors. First, LILCO claims that there is no longer an admitted EBS contention, be-cause it is no longer relying on WPLR and the local Shoreham EBS.

LILCO's Motion at 3. Second, LILCO states that there is no admitted contention challengiitg the adequacy of the State EBS network. M. Third, LILCO alleges that an admissible contention challenging the adequacy of the State EBS cannot be framed, because the coverage issue has previously been resolved. M. at 4-9. Finally, LILCO claims that the Covernments are precluded from raising interface issues concerning WCBS, e_a . how the i

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4 State or County or LILCO would contact WCBS, 'now WCBS would be activated, etcetera, because these issues are encompassed within realism /"best efforts" Contention 5. Ld . a t 9-10.

None of these factors is persuasi't .'ndeed, even a cursory review of these factors makes clear that LILLO's Mot ion must be summarily rejected as wholly lacking in merit. Moreover, this Board should not tolerate LILCO's latest attempt to foreclose any meaningful review or analysis of its EBS proposal. What LILCO is asking this Board to do, in essence, is to find that the adequacy of its totally new proposal, which (i) is still being developed; (ii) is significantly different from the latest version of its Plan; (iii) does not meet regulatory requirements according to LILCO's own engineering consultants; (iv) has as its lead station WCBS, which has not agreed to participate; and (v) has not been scrutinized or tested, is the proper subject for a motion for summary disposition. These reasons, even if considered singu-larly, defeat LILCO's Motion. When considered together, they highlight and illustrate the plain absurdity of LILCO's attempt to resolve summarily the EBS issues pending before this Board.

First, LILCO's Motion is contrary to this Board's Memorandum and Order, which rejected LILCO's previous attempt to dispose summarily of the EBS issue. Sag Memo"andum and Order (Ruling on Applicant's Motion of November 6, 198'! for Summary Disposition of the WALK Radio Issue) (Dec. 21, 1987) (hereafter, "December 21

4 Order"). In its December 21 Order, this Board stated that "sum-

=ary disposition motions assume other parties in a proceeding have had an opportunity to determine and respond to matters potentially in controversy." December 21 Order at 4. Because L:LCO is now introducing a completely new and different EBS proposal, the Governments, however, have had no opportunity to "determine and respond to matters potentially in controversy."

Moreover, even if tne Governments had had that opportunity, it would be extremely difficult, if not impossible, to determine at this time ' shat '4atters are potentially in controversy, because the EBS propor:al that LILCO describes is highly ambiguous and unclear. For example, based upon LILCO's Motion, it is not clear whether LILCO still relies on WPLR and/or a backup or local EBS Shoreham network. Such matters as this must be clarified, and an opportunity given to the Governments to respond, before summary disposition could even be considered by the Board.

Thus, before this matter proceeds further, LILCO should be required to define more precisely its new EBS proposal. Until such time as TILCO does so, its ambiguous proposal, coupled with its failure to provide the Governments with a fair opportunity to analyze and review those matters "potentially in controversy,"

compel summary rejection of LILCO's Motion.

Second, the Governments agree with LILCO that there is no admitted contention challenging the adequacy of the State EBS network. LILCO's Motion at 3. Blame for this lies with LILCO, however, and not the Governments. LILCO has just introduced its new EBS proposal; as a result, the Governments have not had an opportunity to review and analyze that proposal or to submit contentions challenging its adequacy. Until the Governments have been given an opportunity to do so, LILCO's Motion cannot succeed.

Third, contrary to LILCO's assertion (LILCO's Motion at 3),

the adequacy of the coverage of the State EBS has not previously been resolved. In fact, LILCO's Motion is accompanied by an engineering report prepared by LILCO's consultants that concedes that WCBS' coverage of the 10-mile Shoreham EPZ does not meet regulatory requirements. Sget Engineering Report Re Field Strength Measurement Survey of Radio Station WCBS, New York, New York, dated June 1987, which is Attachment 6 to LILCO's Motion.

As the cornerstone of LILCO's Motion -- the alleged adequacy of tiCBS -- is contested by LILCO's own engineering report, this Board has no option but to reject LILCO's Motion.

Fourth, LILCO's Motion must be denied because it is purely executory in that it makes mere representations without any basis in fact. This Board has already held that proposals that are

executory in nature are not the proper subject for motions for summary disposition.2_/ There is no reason for concluding other-vise with respect to LILCO's Motion.

Fifth, LILCO's Motion must be denied because of significant factual disputes between the parties. The Governments take issue with LILCO's so-called "undisputed" facts, all of which are either disputed, unsupported by the record, misleading or other-wise irrelevant. Sag Statement of Material Facts as to Which LILCO Contends There Is No Genuine Issue to Be Heard on the EBS Issue ("LILCO's Statement"), attached to LILCO's Motion. The Governments submit with this Response their own list of material facts; unlike LILCO's list, however, the Governments' list is comprised of those facts as to which there exists a genuine issue to be heard. Such factual disputes as exist here preclude sum-mary disposition.

Finally, the Governments are not barred, as LILCO has alleged, from raising interface issues concerning WCBS, or any other issues for that matter, because "these interface issues are clearly encompassed within the ' realism /best efforts' Contention 5." LILCO's Motion at 9. WCBS, as well as the other stations that LILCO unilaterally claims will be participating in its latest EBS proposal, are private organizations. Therefore, even 2,/ Egg Memorandum and Order (Ruling on Applicant's Motion of October 22, 1987 for Summary Disposition of Contention 25.C Role Conflict of School Bus Drivers) (Dec. 30, 1987) (hereafter, "December 30 Order").

t

assuming that the Commission's new emergency planning rule pre-sumes that the Governments will follow LILCO's Plan, that rule cannot be so broadly interpreted so as to create a presumption that private radio stations will do so.

Any one of the foregoing reasons, as well as others dis-cussed below, is itself sufficient to compel denial of LILCO's Motion. Taken together, they expose the impropriety of LILCO's attempt to eliminate inquiry into and evaluation of its latest EBS proposal. Thus, this Board has no choice but to deny LILCO's Motion, and, at a minimum, to provide the Governments with an opportunity to submit. contentions and pursue discovery.

II. Apolicable Law The Governments summarized the law applicable to summary disposition in their response to LILCO's motion for summary disposition of Contention 25.C, and will not repeat it here. Egg Answer of Suffolk County, The State of New York and the Town of Southampton to LILCO's Motion for Summary Disposition of Contention 25.C ("Role Conflict" of School Bus Drivers), dated November 13, 1987, at 12-13.

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III. Backa roun_si A detailed chronology of the events leading up to LILCO's Motion was presented in the Governments' Briefing Paper Con-cerning LILCO's Emergency Broadcast System, dated June 20, 1988.s To summarize, on June 11, 1987, the Commission issued a Memoran-dum and order reopening the record on LILCO's EBS proposal as a result of the withdrawal of WALK Radio as LILCO's primary station.1/ The Commission's Order found it "premature to admit contentions on the EBS situation until LILCO provides updated information on public notification procedures which may elicit additional contentions." 25 NRC at 886.

LILCO did provide updated information on its EBS proposal when it moved for summary disposition on November 6, 1987.1/ At that time, LILCO introduced an EBS proposal which relied upon WPLR as its lead EBS station. This Board denied LILCO's November 6 motion on December 21, 1987, and directed the Govern-ments to submit contentions concerning the adequacy of LILCO's WPLR EBS proposal. The Governments submitted a single contention with numerous bases on January 12, 1988, 1/ Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), CLI-87-5, 25 NRC 884 (1987).

1/ LILCO's Motion for Summary Disposition of the WALK Radio Issue, dated November 6, 1987.

Thereafter, over the objection of the Governments, the Board admitted only those portions of the Governments' contention that challenged the adequacy of the WPLR EBS' coverage within the 10-mile Shoreham EPZ. 12a Memorandum and Order (Board Ruling on Contentions Relating to LILCO's Emergency Broadcast System)

(Feb. 24, 1988) (hereafter, "February 24 Memorandum and Order").

Discovery proceeded on that issue, and on April 13, 1988, Suffolk County and LILCO filed their direct written testimony.1/ FEMA's testimony was filed on April 28,5/ and a schedule for trial, which contemplated that the issues relating to the coverage of the WPLR EBS would be heard by the Board on or about May 16, was established.

On May 3, 1988, counsel for Suffolk County wrote counsel for LILCO concerning an April 28, 1988 story that appeared in the Egw Haven Recister reporting the withdrawal of WPLR from LILCO's EBS network. A copy of that letter is Attachment 1 to this Response.

Counsel for Suffolk County noted that LILCO had not yet informed the Board of this development, and, since trial on the WPLR EBS issues was about to commence, requested counsel for LILCO to promptly inform the Board as to the status of its EBS proposal.

1/ Sjlult Direct Testimony of Charles G. Perry, III and Gregory C.

Minor on behalf of Suffolk County Regarding LILCO's Emergency Broadcast System, dated April 13, 1988; Testimony of Douglas Crocker, Ralph E. Dippell and William G. Johnson on the Remanded Issue of the Coverage of LILCO's Emergency Broadcast System, dated April 13, 1988.

5/ Sag Testimony of John J. Boursy, Jr., dated April 28, 1988.

on May 6, LILCO filed its direct written testimony on the so-called realism /"best efforts" issues,l/ in which it revealed for the first time that WPLR intended to withdraw as LILCO's lead EBS station, if LILCO was ever issued a full power license for Shoreham. LILCO's realism testimony, at 52-56. According to that testimony, LILCO therefore no longer intended to rely ini-tially on its own EBS network spearheaded by WPLR-FM, but would rather first attempt to activate the New York State EBS network, with WCBS-AM as the lead station, in the event of a Shoreham emergency.

In filing its realism testimony, LILCO not only introduced a proposed new EBS network, but also introduced new terminology to describe the status of the stations participating in that net-work. What had previously been referred to as the primary or lead EBS station was now referred to as the common point control station ("CPCS"); and, what had previously been referred to as secondary stations were now referred to as primary stations.8_/

Notwithstanding this change in terminology, the responsibilities and functions of the stations in LILCO's proposed EBS network did not change, with one significant exception: according to LILCO, 1/ S_qq Testimony of Dennis M. Behr, Douglas M. Crocker, Diane P. Dreikorn, Edward B. Lieberman, and John A. Weismantle on the "Best Efforts" Contentions EP l-2, 4-8, and 10, dated May 6, 1988 (hereafter, "LILCO's realism testimony").

8,/ No explanation was ever given by LILCO for this change in terminology, but the reason seems 7bvious: LILCO was attempting to conceal WPLR's change of status or even its possible withdrawal from the EBS network then proposed by LILCO.

l

WGLI, which had been a secondary station in LILCO's proposed WPLR EBS network, had agreed to take over responsibility from WPLR as the "CPCS" or lead station in LILCO's new EBS network. LILCO did not adequately explain, however, a number of other aspects of its proposed system, including how the WCBS EBS network would be activated, or how it would interact with the LILCO EBS network that then relied upon WGLI as the lead station.

Thereafter, on May 16, LILCO sent a letter to the Board which disclosed yet additional changes in its EBS proposal. That letter, which is Attachment 2 to this Response, informed the Board, for the first time, that WPLR's continued participation in LILCO's EBS, even as a secondary station, was unclear.

On May 24, LILCO issued Revision 10 to the LILCO Plan.

While Revision 10 indicated that LILCO would initially rely on the New York State EBS, with WCBS as the CPCS or lead station, it also claimed that the "Shoreham local EBS network" would serve as a backup to the State EBS. Significantly, Revision 10 called for WPLR to assume the role of lead station of the "Shoreham local EBS network," as well as to continue to activate the tone alert radios installed (or to be installed) at various special faci-lities, such as schools, hospitals, nursing homes and major employers, throughout the 10-mile Shoreham EPZ. LILCO Plan (Rev.

10), at 3.8-7.

i On May 25, counsel for LILCO sent a letter to the Board discussing these changes in LILCO's EBS proposal, as set forth in Revision 10. A copy of that letter is Attachment 3 to this Response. According to LILCO's May 25 letter, Revision 10 of the Plan provided for "direct activation of the Shoreham EBS through WPLR." LILCO's letter also claimed that Revision 10 "adequately resolve (s) all EBS issues," and asserted that "(a]ny other matters relating to the EBS construct described in Revision 10

<ould be for the Intervenors to raise by a timely contention."

Notwithsta.nding this May 25 letter, on May 26, during hearings before the Board, Judge Gleason raised the EBS issue and expressed his confusion over LILCO's description of its latest EBS proposal, as described in the May 25 letter. Relevant por-tions of the May 26 transcript are attached as Attachment 4 to this Response. In response to questions from the Board, counsel for LILCO continued to claim that "WPLR is still to be a member station and triggers the tone alerts." Tr. 20,425. Counsel for LILCO also asserted that there were no outstanding contentions concerning WCBS but reasoned that hearings could go forward concerning the adequacy of WPLR "if the intervenors wish."

Tr. 20,426. However, when counsel for LILCO was unable to ex-plain adequately LILCO's EBS proposal as set forth in Revision 10, the Board ordered limited discovery to "provide an opportu-nity for (the) parties to have discovery with respect to whatever it is you (LILCO) are proposing." Tr. 20,429 (Judge Gleason).

The Board also ordered the parties to submit a briefing paper shortly thereafter concerning how best to proceed. Isl.

Pursuant to the limited discovery ordered by the Board, Douglas Crocker, LILCO's lead EBS witness, was deposed by Suffolk County on June 13 for the sole purpose of ascertaining the structure and operations of LILCO's latest EBS proposal, as described in Revision 10 to the LILCO Plan. On June 20, the Governmei4s and the NRC Staff submitted briefing papers in re-sponse to the Board's May 26 bench order. LILCO, however, did not do so; rather, it filed a Motion for Leave to File Summary Disposition Motion on the EBS Issue (hereafter, "Motion for Leave"), as well as the Motion for Summary Disposition at issue here.

IV. Discussion A. LILCO's Motion Introduces a Materially Different EBS Proposal That the Governments Have Not Had an Oooortunity to Analyze As noted above, this is LILCO's second attempt to resolve the outstanding EBS issues before the Board through summary disposition. In denying LILCO's first attempt, this Board held that "(1]t can hardly be considered as acceptable procedure that LILCO's plan revisions, unreviewed by other parties and FEMA,

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with new radio stations forming significant links in its emer-gency broadcast responsibilities, could be the subject of a summary disposition resolution." December 21 Order, at 3-4. As the changes in LILCO's latest EBS proposal are even greater than were the changes made by LILCO when it replaced WALK with WPLR as its lead EBS station, it is even more compelling now not to resolve the outstanding EBS issues by way of summary disposition, as LILCO would have this Board do.

Indeed, while LILCO's first summary disposition motion followed LILCO's replacement of WALK Radio with WPLR (as well as the replacement of a few secondary stations), LILCO's most recent proposal not only involves the replacement of WPLR with WCBS-AM as LILCO's new lead station (or as LILCO now refers to it, the "CPCS"), but also essentially calls for an entirely different network of secondary broadcast stations. Moreover, rather than relying on WPLR, LILCO's latest proposal calls for two different stations, WCBS-AM and WALK, to activate the tone alert radios that LILCO has or will install throughout the 10-mile EPZ. Most revealing, however, is that unlike LILCO's previous EBS pro-f posals, none of the stations that LILCO now relies on to partici-l pate in any significant respect in its EBS proposal (WCBS, WALK and apparently WPLR) has agreed to participate in the implementa-tion of that proposal.

I

Thus, LILCO is attempting to have summary disposition granted on a proposal that radically differs from its earlier EBS '

proposal, and it relies on stations that have not only not agreed to participate in the implementation of LILCO's Plan, but, at least in two cases (WALK and WPLR), have affirmatively stated that they will not do so. Hag Attachments 5 and 6 to this Re-sponse, which are letters dated August 8, 1986, and June 6, 1988 from WALK and WPLR, respectively, notifying LILCO of their withdrawal from the EBS networks then proposed by LILCO. As the Governments have not had an "opportunity to determine and respond to matters potentially in controversy", "fairness and proper procedure" require this Board to reject LILCO's latest attempt for summary disposition. Sag December 21 Order, at 4.

B. LILCO's Motion for Summary Disposition Introduces an EBS ProDosal That Is Ambiauous Summary disposition of the EBS issues also cannot be granted for LILCO because LILCO's Motion is ambiguous and unclear in certain critical respects. Perhaps the most significant ambigu-ity is the apparent continued role of WPLR under LILCO's latest proposal. Revision 10, LILCO's latest version of its Plan, clearly states that WPLR will still be the lead station of LILCO's local, or backup, EBS network. LILCO Plan, at 3.8-7.

Moreover, Douglas Crocker, LILCO's primary EBS witness, testified during his recent deposition that LILCO's Plan also relies upon WPLR to activate tone alert radios installed or to be installed

at various special facilities throughout the 10-mile Shoreham EPZ. Se_q Deposition of Douglas M. Crocker, June 13, 1988 (here-after, "Crocker Deposition"), at 48-49.

Notwithstanding these Plan provisions, LILCO's Motion leaves entirely unclear whether LILCO's EBS proposal still continues to rely on WPLR in any capacity. On the one hand, it appears that LILCO is still relying on WPLR. LILCO's Motion, for example, states that "[a]t this point in time, it is not clear what role, if any, WPLR will play." LILCO's Motion at 2. Nonetheless, in the Motion for Leave that accompanied LILCO's Motion, LILCO concedes that WPLR is still included in Revision 10 and that it "would enlist WPLR's services . . . as a last resort." Motion for Leave at 3.

On the other hand, there are statements to the contrary made in LILCO's Motion and elsewhere. For example, LILCO's Motion claims that LILCO "no longer relies on the WPLR system." LILCO's Motion at 3. LILCO also states that "it is likely that future revisions of the LILCO Plan will not include WPLR." J_d. at 4.

Further, in its Motion for Leave, LILCO claims that it "now relies on the State EBS instead of the WPLR-triggered local EBS to broadcast EBS messages and activate tone alert radios."

Motion for Leave at 4. Clearly, therefore, the question remains whether LILCO still relies on WPLR. Only LILCO can answer that t l

question. It is, however, a question which must be answered before the Board could grant summary disposition in LILCO's favor.

In addition to the ambiguity over the participation of WPLR, other questions concerning LILCO's latest EBS proposal . remain unanswered. LILCO's Motion, for example, leaves open the issue whether LILCO's EBS still relles on a local or backup EBS net-work,; and if so, what station is being relied upon to activate that network. Revision 10, for example, states, at page 3.8-7:

The availability of this backup network as a last resort ensures that in case of a problem or delay in activating the WCBS-based EBS, a coordinated and accurate emergency information message can be broadcast to the public.

Revision 10 calls for WPLR to activate the local Shoreham EBS.

As previously hoted, however, LILCO elsewhere claims that WPLR is no longer relied upon by LILCO in any respect. And, it cannot be overlooked that LILCO's Motion completely ignores any discussion of the local Shoreham EBS.

In addition, LILCO's Motion fails to address how the broad-cast receivers at LILCO's secondary EBS stations, relied upon by LILCO to receive and transmit or tape for later re-broadcast LILCO's EBS messages, would be activated. Previously, LILCO relied upon WPLR to perform this function. This aspect of I

LILCO's proposed WPLR EBS was challenged by the Governments, and the issue was deemed appropriate for litigation by the Board in its February 24 Memorandum and Order. The ambiguity surrounding whether and how LILCO now intends to activate the secondary stations' broadcast receivers under its latest EBS proposal provides additional reason for denying LILCO's Motion.

With so many questions sur rounding LILCO's latest EBS pro-posal, this Board cannot grant LILCO the summary disposition it seeks. Accordingly, the Board must summarily reject LILCO's Motion, and refuse to consider the EBS issue further until LILCO submits a proposal that is final and clear in all significant respects.

C. There Is No Admitted Contention Concerning the Adequacy of the State EBS Network Because the Governments Have Not Had an Opportunity to Review and Analyze LILCO's Latest Proposal or to Submit Contentions LILCO claims that the only admitted contention concerning the EBS issue "is of no further significance" and that because there is no admitted contention challenging the adequacy of the State EBS, there are no "genuine issue (s) of material fact" to be heard by the Board. LILCO's Motion at 3. This logic is thoroughly disjointed and highlights the absurdity of LILCO's Motion. In essence, what LILCO argues is that there is no longer an admitted EBS contention to be heard, because LILCO has changed 1

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its EBS proposal. Moreover, because of this change, there are no outstanding contentions to be resolved. Therefore, according to LILCO, summary disposition should be granted.

What LILCO really seeks, of course, is to eliminate the existing admitted EBS contention without litigation, while at the same time preventing the Governments from reviewing and analyzing LILCO's latest EBS proposal and, if appropriate, thereafter filing contentions challenging the adequacy of that proposal.

This Board should not tolerate such a transparent attempt to circumvent the legitimate rights of the Governments to challenge and contest LILCO's proposed EBS. To do so would be clear error.

Rather than following LILCO's advice, what this Board first needs to address is the already-admitted contention concerning WPLR. That contention, which was submitted pursuant to the Board's December 21 Order and modified by the Board's February 24 Memorandum and Order, was essentially limited to the adequacy of l the WPLR EBS network's coverage within the 10-mile Shoreham EPZ.

To be sure, the continuing relevancy of that contention is doubt-ful, in light of the questions previously discussed concerning LILCO's continued reliance on WPLR, and WPLR's apparent with-I drawal from LILCO's EBS network. Indeed, both the NRC Staff and LILCO have conceded that the WPLR issue is "moot".1/

1/ NRC Staff Briefing Paper on the Emergency Broadcasting System Issue, dated January 20, 1988 (hereafter, "NRC Staff Briefing Paper"), at 2; LILCO's Motion at 4.

L k

As all parties agree that the contention concerning WPLR is moot, it appears that there are only two options available to this Boards grant summary disposition for the Governments on the existing EBS contention; or declare the contention moot and, as a matter of law, rule for the Governments. If it turns out in discovery or in later modifications of LILCO's Plan that WPLR is again being relied upon as a participant in LILCO's CBS, then the admitted contention can be resurrected. Until that time, how-ever, there appears to be no reason not to dispose of that con-tention. In the Governments' view, the appropriate course for the Board would be for summary disposition to be granted for the Governments. The Governments are prepared to submit promptly whatever papers this Board feels are necessary in order to imple-ment this recommendation.10,,/

Assuming that this Board disposes of the admitted WPLR EBS contention, however, it does not logically flow, as LILCO sug-gests, that summary disposition should be granted in LILCO's favor because there is no admitted EBS contention. Rather, because LILCO's most recent EBS proposal is so materially different from its previous WPLR EBS proposal, the Governments 10,/ In their June 20 Briefing Paper Concerning LILCO's Emergency Broadcast System, the Governments noted (at page 15) that summary disposition of the admitted WPLR EBS contention was appropriate, but that this Board had prohibited the filing of motions for summary disposition. This Board lifted that prohibition in a Memorandum and Order dated June 21, 1988. However, because there does not appear to be any dispute among the parties that summary disposition of the admitted EBS contention should be granted, the Governments have not filed the appropriate papers, but are prepared to do so if the Board so requests.

must be given, at a minimum, the opportunity to submit conten-tions and pursue discovery on matters raised by LILCO's latest EBS proposal. The NRC Staff has also concluded that at least this much is required. Sag NRC Staff Briefing Paper, at 3. By permitting the Governments to submit contentions, this Board would be following the same approach it took under a similar set of circumstances, when it denied LILCO's last attempt at summary disposition of the EBS issue. Egg December 21 Order.

D. The Adequacy of the Coverage of the State EBS Bas Not Been Resolved In support of its claim that there are no litigable EBS issues remaining, LILCO gives five reasons why the State EBS provides adequate coverage to the 10-mile Shoreham EPZ. LILCO's Motion at 7-9. Each of LILCO's reasons is without merit; in fact, rather than resolving the EBS issues, they illustrate that there are issues yet to be resolved.

First, LILCO notes that WALK Radio and all of the other stations that were part of the original LILCO EBS network are now part of the State EBS. LILCO argues that, since the Board found this network acceptable in the Plan litigation, Lona Island Lichtina Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644, 760, 764 (1985) (hereafter, the "PID"), the adequacy of the State EBS coverage has already been established and judged adequate. LILCO's Motion at 7. Second, LILCO claims that WCBS'

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coverage has already been established in the context of the legal authority contentions. Specifically, LILCO asserts that "Fact" number 17 in LILCO's March 20, 1987 Second Renewed Motion for Summary Disposition of those contentions (hereafter, "Second Renewed Motion") stated that "The CPCS-1 (for the State EBS) has a fifty kw AM station that covers the entire Shoreham 10-mile EPZ," and that this "fact" was admitted when the Governments failed to controvert it in their response to LILCO's Second Renewed Motion. LILCO's Motion at 7 (citing LBP-87-26, 26 NRC 201 (1987)). Third, LILCO contends that the adequacy of WALK Radio was "in effect conceded" by the Governments in their pleadings challenging the WPLR EBS, including their January 12, 1988 EBS contention. LILCO's Motion at 7-8. Fourth, as addi-tional "confirmation" of the adequacy of the State EBS coverage to the Shoreham EPZ, LILCO relies upon a field strength engineering report and an affidavit from its radio engineers, Cohen and Dippell. M. at 8. Fifth and finally, LILCO claims that the Governments' failure to produce State and County per-sonnel for depositions created the presumption that their testi-mony would have been adverse to the Governments' position re-garding the adequacy of LILCO's latest proposed EBS network. M.

at 8-9.

LILCO's reasoning is fundamentally flawed, and none of its five reasons for the allegation that there are no litigable issues concerning the State EBS coverage withstands scrutiny.

For example, the adequacy of the coverage of the State EBS has never been litigated in this proceeding; nor has the adequacy of the State EBS coverage been cunceded by the Governments. In fact, LILCO's own engineering report clearly admits tha". WCBS does not provide adequate coverage to the 10-mile Shoreham EPZ.

Sit LILCO's Motion, Attachment 6.

More particularly, LILCO's claim that the adequacy of the State EBS system's coverage has already been established in the Plan litigation is disingenuous and misleading. The adequacy of the State EBS issue was not litigated in that proceeding; in fact, not even the adequacy of WALK Radio's coverage was liti-gated. Rather, the only contention that was litigated was whether WALK's failure to broadcast on an AM frequency at night made WALK inadequate to serve as LILCO's lead, or primary, EBS station. Sig EP Contention 20, attached hereto as Attachment 7.

Indeed, in the PID, the Board specifically stated that "the range of the stations (WALK-AM and -FM) is not at issue in Contention 20." 21 NRC at 764. LILCO therefore misleads the Board in claiming that the Plan litigation has resolved the adequacy of the State BBS system's coverage.

Moreover, even if the adequacy of WALK Radio had been liti-l gated in the prior Plan litigation, that would not have been dispositive of the issues now before the Board in this pro-ceeding. In the prior proceeding, WALK was the lead station of

the Shoreham EBS network and had agreed to participate in such network. Now, however, WALK is being relied upon only as a secondary station, and it has not agreed to participate in the implementation of LILCO's Plan, as LILCO would have this Board believe. Indeed, WALK has affirmatively withdrawn f rom LILCO's proposed EBS network. In any event, as the roles and responsi-bilities of lead stations and secondary stations are different, the inquiry into the adequacy of those stations is also neces-sarily different. Simply put, any litigation concerning the WALK-triggered EBS network is not relevant to the issues now to be determined by the Board.

It is equally misleading for LILCO to claim that the ade-quacy of WCBS' coverage has been established as a result of the Governments' failure to controvert "Fact" number 17 in LILCO's Second Renewed Motion. LILCO's Second Renewed Motion was not related to any contention concerning the adequacy of LILCO's latest EBS proposal or the adequacy of WCBS' coverage; rather, it was related to the realism /"best efforts" Contention 5. That contention solely concerned LILCO's inability to activate sirens and direct the broadcasting of emergency broadcast system messages.

2 The Governments did not controvert "Fact" 17, or many of the other "facts" offered by LILCO, because they believed that LILCO's "facts" did not address, or ' are

.. irrelevant to, the

important legal authority issues that had to be resolved by the Board before summary disposition could be granted, and certainly were not related to the contention concerning the adequacy of LILCO's EBS proposal. Indeed, in denying LILCO's Second Renewed Motion, the Board found that "the '?nst-efforts' assumption is rebuttable in this case to the extent that it leavas open fAq.

adecuacy of response," 26 NRC at 225 (emphasis added). ,

Moreover, the adequacy of the EBS proposal could not have been decided at the time LILCC's Second Renewed Motion was re-solved against LILCO, because there was no EBS proposal before the Board at that time. When the Board denied LILCO's Second Renewed Motion on September 17, 1987, LILCO had not yet replaced its WALK-triggered EBS with its WPLR EBS proposal, which was first introduced on November 6, 1987, when LILCO's Motion for Summary Disposition of the WALK Radio Issue was filed.ll_/ As there was no EBS proposal before the Board, and WCBS was not being relied upon by LILCO at the time to broadcast emergency information, there was no need to devote the time and resources to address the alleged adequacy of WCBS' coverage.

Therefore, as "Fact" 17 was only related to LILCO's attempt to resolve summarily the legal authority contentions, was not controverted by the Governments at a time when there was no EBS 1l_/ WALK had withdrawn from LILCO's EBS sometime prior to September 16, 1986. Eel Attachment 5 to this Response.

proposal before the Board, and did not relate to or establish "the adequacy of (LILCO's] responsa," it must be disregaried in the context of deciding LILCO's instant Motion.

Furthermore, even if this Board does deem "Fact" 17 related to this proceeding, it still would not establish the adequacy of the coverage of WCBS. "Fact" 17 only claimed that WCBS covers the entire 10-mile EPZ; it is, however, completely silent as to the adecuacy of that coverage. And, as discussed below, LILCO's own engineering report demonstrates that WCBS' coverage falls below minimum standards. Therefore, "Fact" 17, even if cc,n-sidered relevant to.this proceeding, is not dispositive of ques-tions relating to the adequacy of WCBS' coverage.

LILCO's claim that the Governments have "in effect conceded the adequacy of WALK Radio as an EBS broadcaster" (LILCO's Motion at 7) requires but brief comment. This argument is premised on statements made by the Governments in their pleadings challenging the WPLR EBS; in particular, LILCO relies on the Governments' January 12, 1988 EBS contention. Pleadings and proffered conten-tions are not facts, however. Moreover, the contention submitted

( on January 12 only claimed that WALK was more suitable thar NPLR to act as the lead station of an EBS network, not that WALK's coverage was adequate. Furthermore, it cannot be overlooked that l the Board refused to admit any portions of the proffered conten-l o

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tion that compared WALK to WPLR. .SisLq February 24 Memorandum and Order at 4. There is no basis for LILCO to rely on claims that were made, but rejected, by the Board.

As additional "confirmation" of the adequacy of the State EBS coverage to the Shoreham EPZ, LILCO relies upon an engineer-ing report and affidavit prepared by the engineering consulting firm of Cohen and Dippell (attached to LILCO's Motion as Attach-ments 6 and 9, respectively). Neither the engineering report nor tiet affidavit, however, states Chat WCBS provides adequate cover-age of the entire 10-mile Shoreham EPZ. The affidavit only claims that WCBS provides coverage at a level of at least .58 mV/m to the entire 10-mile EPZ, without disclosing the relevance of that level of coverage, or discussing whether this meets FCC regulatory requirements. The engineering report goes one step further, by explaining that regulatory standards require a signal strength of 2 mV/m to serve communities with populations in excess of 2500 persons. The engineering report confirms, more-over, that the EPZ consists of "numerous" communities in excess of 2500 persons, and then attaches a "Measured Service Contours" map that shows that WCBS' 2 mV/m contour may only reach a small (

part of the EPZ. Therefore, based on the Cohen and Dippell engineering report, it appears that the coverage of WCBS to the Shoreham EPZ fails to satisfy FCC regulatory requirements. At a minimum, the issue of WCBS' coverage to the Shoreham EPZ is thus called into question.

LILCO's last reason for claiming that no litigable issue exists with respect to the coverage provided by the State (WCBS)

EBS hinges upon the fact that, derpite LILCO's requests to depose State and County persor.nel knowledgeable about the capabilities and means of activating the State EBS, the Governments failed to produce these witnesses. In LILCO's view, this creates a pre-sumption that the witnesses' testimony would have been adverse to the Governments. LILCO's Motion at 8-9.

This LILCO argument is plainly without merit. First, this Board, in its May 26 bench order, limited discovery to only what was necessary for the Governments to ascertain the nature and scope of LILCO's EBS proposal, as set forth in Revision 10 to LILCO's Plan. The persons whose depositions were noticed by LILCO --

specifically John Randolph, G. Berkeley Bennett, John Bilello and Richard Jones of Suffolk County and Marvin Silverman of New York State -- were clearly not contemplated by the Board's discovery order. See letter of Michael J. Missal to Donald P.

1 i

Irwin and K. Dennis Sisk, dated June 10, 1988 (attached hereto as Attachment 8).

Second, counsel for LILCO announced during a Board telephone conference on June 17 that LILCO was no longer seeking to depose the noticed County and State perscuel on the EBS-related issues before the Board. Tr. 20,890-91. As a result, LILCO cannot now l

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argue that although it no longer desires to depose the witnesses, a presumption that their. testimony would have been adverse to the Governments should nonetheless be created.

For the foregoing reasons, it is clear that the adequacy of the coverage provided by the State EBS to the Shoreham EPZ has not been resolved. Therefore, at a minimum, LILCO's Motion must be denied, and the Governments must be given an opportunity to submit contentions and pursue discovery.

E. LILCO's Motion Is Purely Executory and Therefore Is Not the Proper Subject for a Motion for Summary Disposition This Board has previously held that proposals that are executory in nature require analysis and review and-are not the proper subjeck for motions for summary disposition. Egg December 30 Order. LILCO's Motion is executory in nature, relying upon mere representations not yet demonstrated to be based in fact.

It therefore must fail.

Some of the more significant, factually unsupportable repre-sentations made by LILCO include the following:

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1. LILCO represents th?t WCBS is now being relied upon to notify the public and to activate the State EBS network and the tone alert radios at various special facilities through-out the Shoreham EPZ. LILCO's Motion at 3, S-6. WCBS has not agreed to participate in LILCO's EBS proposal, however.
2. LILCO represents that since the WCBS-triggered State EBS includes WALK Radio, WALK can be relied upon to par-ticipate in the State EBS and to activate tone alert radios at various special facilities throuchcat the EPZ. LILCO's Motion at 5, 7. WALK Radio, however, has specifically withdrawn from participation in LILCO's proposed .EBS network. There is thero-fore no basis for LILCO's assumption regarding WALK's participa-tion.
3. LILCO may Etill be relying on WPLR to activate the backup or local Shoreham EDS network. LILCO's Motion at 2, 4-6.

WPLR has specifically withdrawn from participating in LILCO's EBS proposal, however.

4. LILCO represents that it will recrystallize or replace the tone alert radios so that they can be activated by l WCBS and WALK. LILCO's Motion at 6. However, Douglas Crocker testified during his recent deposition that LILCO's Plan still calls for the tone alert radios to be activated by WPLR. Seg L

Crockar Deposition, at 48-49.

r S. LILCO claims that "the adequacy of the State EBS' coverage of the 10-mile EPZ around Shoreham was deemed admitted' by the Intervenors in the legal authority proceeding." Motion for Leave at 5. This statement is baseless and, as discussed above, erroneous.

6. L LCO claims that the Cohen and Dippell engineer-ing report attached to its summary disposition motion (LILCO's Motion, Attachment 6) confirms that "WCOS itself provides full

! coverage to the Shoreham EPZ." Motion for Leave at 5. As dis-cussed above, this statement is baseless and false.

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Therefore, as LILCO's Motion, and its accompanyinc Motion for Leave, contain significant statements and representa-l l tions that are purely executory and, in many instances, contrary to fact, this Board must deny LILCO's Motion.

I F. LILCO's Statement of "Material Pacts" Is Disouted Attached to LILCO's Motion are 11 "material facts" as to which LILCO claims there are no genuine issues to be heard.

However, as shown below, these "facts" are either disputed, unsupported by the record, misleading and/or irrelevant. More-over, some of these "facts" can neither be admitted nor denied at this time, because the Governments have not had an opportunity to conduct discovery concerning LILCO's latest EBS proposal.

i

Alleaed Fact 1 -

LILCO begins by claiming that it "no longer relies on radio station WPLR or the local Shore-ham EBS as its first-tier EBS broadcaster for the Shoreham station."

This alleged "fact" is, at best, misleading. LILCO's claim that it is no longer relying on WPLR or the local Shoreham EBS as the "first-tier" EBS broadcaster suggests that LILCO is not relying on either to provide emergency information to the public in the event of a Shoreham emergency. Revision 10, however, calls for WPLR to activate the local Shoreham EBS if there are "problems or delayc" in activating the State EBS. LILCO Plan at 3.8-7. Therefore, if there are "problems or delays" in acti-vating the State EBS, WPLR and the local Shoreham EBS network would become the "first-tier" EBS broadcaster, at least according to the latest version of LILCO's Plan.

Alleaed Fact 2 - LILCO next claims that it is "now rely (ing) on the official State EBS for the Nassau -

Suffolk Counties Operational Area to broadcast emer-gency information during a Shoreham emergency."

This alleged "fact" is misleading, because Revision 10 states that LILCO is relying on both the State EBS and the local I Shoreham EBS, not just the State EBS. LILCO Plan at 3.8-6 and 3.8-7. In addition, LILCO's Plan still calls for WPLR, which is 33 -

not a participating station in the State EBS, to activate the tone alert radios installed or to be installed at special faci-lities located throughout the Shoreham EPZ. jLe_q Crocker Deposi-tion at 48-49. Alleged "Fact 2" is also irrelevant because WCBS, the station that activates the State EBS, has not agreed to participate in LILCO's EBS proposal.

Alleaed Fact 3 -

LILCO's alleged "Fact 3" simply identifies WCBS-AM as the station that activates the State EBS, and claims that "WCBS is a fifty kw clear-channel station that operates on a frequency of 880 kHz, 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day."

As the Governments have not yet had an opportunity to con-duct discovery concerning LILCO's latest EBS proposal, the Governments lack an adequate basis to either admit or deny al-leged "Fact 3." The Governments note, however, that alleged "Fact 3" is irrelevant to the issues before this Boa r c' , because WCBS has not agreed to participate in LILCO's latest EBS pro-posal.

Alleaed Fact 4 - LILCO claims that "[t]he State EBS for the Nassau-Suffolk Counties Operational Area is com-prised of about 30 Long Island radio stations, in-

i cluding WALK and all-of the other Long Island stations that were previously (or are currently) participating members in the local Shoreham EBS."

Like alleged "Fact 3," the Governments lack an adequate

-basis to either admit or deny alleged "Fact 4" at this time.

Simply put, the Governments have not had an opportunity to con-duct discovery concerning LILCO's latest EBS proposal. The Governments submit, however, that alleged "Fact 4" is irrelevant, because most of the stations participating in the State EBS have not agreed to participate in the local Shoreham EBS network.

Alleaed Fact 5 -

In alleged "Fact 5," LILCO lists the steps to activate the EBS that the LERO Director of Local Response would implement, pursuant to Revision 10 of the Plan, in the event of an emergency at Shoreham.

Included as a step is the activation of the local Shoreham EBS in the event of "problems or delays" in activating the State EBS.

This allegedly undisputed "fact" is, in fact, disputed by LILCO's own Motion. Revision 10 of the LILCO Plan still relies on WPLR to activate the local Shoreham EBS. LILCO Plan at 3.8-7.

LILCO's Motion, however, claims that "LILCO no longer relies on the WPLR system to bc its EBS broadcaster." LILCO's Motion at 4.

LILCO's Motion further states that "(i]ndeed, it is likely that

future revisions of the LILCO Plan will not include WPLR." 151 Therefore, LILCO's own Motion disputes alleged "Fact 5."

Moreover, alleged "Fact 5" is irrelevant in that WCBS and WPLR, the stations apparently relied upon by LILCO to activate its EBS networks, have not agreed to participate in the implementation of LILCO's Plan.

Alleaed Fact 6 - LILCO claims that it will "rely on the State EBS to activate the tone alert radios that LILCO has provided to schools, special facilities, hospitals and large employers."

This alleged "fact" is not supported by the record. LILCO's Plan still relies upon WPLR to activate the tone alert radios.

Moreover, Douglas Crocker, LILCO's principal EBS witness, con-firmed during his recent deposition that the tone alert radios are still programmed to be activated by WPLR. Sea Crocker Deposition at 48-49. Therefore, alleged "Fact 6" is unsupported by the record; accordingly, it is disputed by the Governments.

Alleced Fact 7 - "Fact 7" alleges that "LILCO will replace or recrystallize all of the tone alert radios so that they can be activated by both WCBS (AM) and t

WALK-FM."

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Alleged "Fact 7," like alleged "Fact 6," is unsupported by the record because Revision 10 calls for the tone alert radios to be activated by WPLR. S_qe Crocker Deposition at 48-49. More-over, this alleged "fact" is purely executory in nature. As such, it is not a "fact" at all.

Alleaed Fact 8 - Alleged "Fact 8" claims that Cohen and Dippell, at LILCO's request, conducted a field strength measurement survey of WCBS for the purpose of deter-mining "the extent of WCBS' actual coverage throughout the 10-mile Shoreham EPZ, taking into account the specific terrain effects between the station and measurement points in the 10-mile EPZ and beyond."

Alleged "Fact 8" is irrelevant to LILCO's Motion, as it only states that LILCO requested a study of the coverage of WCBS.

Alleged "Fact 8" does not address the focus of LILCO's Motion, which is the adequacy of that coverage. Even without the oppor-tunity for discovery, the Governments are able to dispute "Fact 8," based upon the results of the Cohen and Dippell survey, which are reflected in the engineering report attached to LILCO's Motion as Attachment 6. Alleged "Fact 8" is also irrelevant, in that WCBS has not agreed to participate in LILCO's EBS proposal.

Alleced Fact 9 - In alleged "Fact 9," LILCO claims that WCBS-AM operates on a frequency of 880 kHz with a power level of 50 kw, and uses the same non-directional antenna system both day and night. LILCO also alleges that under FCC rules, WCBS is designated as a Class I-A, clear channel station and operates with the maximum permissible power for AM stations. LILCO further alleges that Class I-A stations are protected to their 0.1 mV/m groundwave contour from co-channel stations and to the 0.5 mV/m groundwave contour from adjacent channel stations during the daytime. Moreover, LILCO alleges that during nighttime, Class I-A stations are protected to the 0.5 m/Vm 50% skywave contour from co-channel stations and to the 0.5 groundwave contour from adjacent channel stations. Finally, LILCO alleges that WCBS' O.5 mV/m 50% skywave contour extends approxi-mately 700 miles, and FCC rules preclude nighttime operation of other co-channel stations within this area.

Until the Governments are given an opportunity to conduct discovery concerning LILCO's latest EBS proposal, the Governments lack an adequate basis to either admit or deny alleged "Fact 9."

In the Governments' view, however, alleged "Fact 9" is irrelevant to the issues before the Board, because WCBS has not agreed to participate in LILCO's latest EBS proposal.

Alleoed Fact 10 "Fact 10" alleges that "(ajn analysis of the field strength measurements shows that WCBS pro-vides 24-hour coverage at a level of at least 580 microvolts (.58 millivolts) per meter to the entire 10-mile EPZ around Shoreham "

Like alleged "Facts" 3, 4 and 9, the Governments lack an adequate basis to either admit or deny alleged "Fact 10," because they have not yet been given an opportunity to conduct discovery.

The Governments believe that alleged "Fact 10" is misleading, in that it falls to state that WCBS does not provide coverage to the entire 10-mile Shoreham EPZ pursuant to .FCC requirements. As discussed above, LILCO's own engineering report concedes that the FCC requires coverage of 2000 microvolts (2.0 mV/m) per meter to the more heavily-populated areas of the EPZ. Moreover, alleged "Pact 10" is irrelevant, since WCBS has not agreed to participate in LILCO's latest EBS proposal.

Alleaed Fact 11 - Alleged "Fact 11" claims that "WCBS' signal is of ample strength to activate the tone alert radios dispersed throughout the 10-mile EPZ, since the sensitivity of the AM tone alert radios is 30 micro-volts per meter."

This alleged fact is disputed for some of the same reasons given above with respect to alleged "Fact 10." First, the Governments lack an adequate basis to either admit or deny al-leged "Fact 11," because they have not been given an opportunity to conduct discovery. Second, alleged "Fact 11" is irrelevant, because WCBS has not agreed to participate in LILCO's latest EBS proposal. Third, the Governments dispute alleged "Fact 11,"

because Revision 10 of the LILCO Plan still relies on WPLR to activate the tone alert radios dispersed throughout the 10-mile EPZ. jieg Crocker Deposition at 48-49.

G. Material Issues of Fact Remain to Be Decided As noted above, significant issues of fact remain to be decided concerning not only the structure of LILCO's latest EBS proposal, but also the adequacy of that proposal. Among the questions that must be addressed is whether WCBS will participate in LILCO's EBS proposal; if so, whether the coverage of WCBS is adequate to provide emergency information to the public, activate the broadcast receivers at the secondary EBS stations, and acti-vate the tone alert radios at the special facilities dispersed j throughout the EPZ; whether WPLR is still being relied upon in LILCO's EBS proposal; whether WALK, or any of the other approxi-mately 30 Long Island radio stations that normally participate in i

the State EBS network, but have never agreed to participate in LILCO's proposed EBS network, will do so; and, whether LILCO is

(

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relying upon a local or backup Shoreham EBS network to provide emergency information, and if so, what station will activate that network. A Statement of Material Facts as to Which There Exists a Genuine Issue to Be Heard, which sets forth the above issues and others, is attached to this Response.

H. The Governments Are Not Precluded from Raising Interface Issues Concernina WCBS LILCO claims that the only potentially litigable issues concerning LILCO's reliance on the State EBS are interface issues

-- for example, issues involving how the State or County or LILCO would contact WCBS, how WCBS would be activated, etc. LILCO's Motion at 9-10. LILCO alleges that as these issues are clearly encompassed within the realism /"best efforts" contentions --

specifically, Contention 5 --

the Governments are precluded from raising such interface issues.

LILCO is wrong. The kinds of interface issues raised by LILCO's latest EBS proposal are not part of the "realism" pro-ceeding. The "realism" proceeding focuses on the presumption that the Governments would participate in emergency planning in the event of a radiological emergency at Shoreham. WCBS, and all of the other stations that LILCO unilaterally claims will be par-ticipating in its EBS proposal, are private organizations, how-ever. Even if the Governments asked those stations to broadcast I emergency information, they are under no obligation to do so.

1 1

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l

.n , . + - , . . , , - , p. .- - - . , , , , . - . - - , , . . - . . - - . . --

Thus, even if it is assumed that the Governments would follow LILCO's Plan in the event of a Shoreham emergency -- an assumption the Governments vigorously contest -- the Commission's new rule cannot be so broadly interpreted to create a presumption

.that private radio stations would do so. Accordingly, the Governments are not precluded from raising interface issues concerning WCBS, and, in fact, they are entitled to do so.

V. Conclusion For the reasons stated above, LILCO's Second Motion For Summary Disposition of the EBS Issue should be denied in its entirety. Further, if and when LILCO submits an EBS proposal that is final and clear, the Governments should be given an opportunity to submit contentions and pursue discovery into LILCO's latest EBS proposal.

Respectfully submitted, E. Thomas Boyle, Esquire Suffolk County Attorney Bldg. 158, North County Complex Veterans Memorial Highway Hauppauge, New York 11788 Michael S. fWfler Michael J. Missal

(

KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - Ninth Floor Washington, D.C. 20036-5891 Attorneys for Suffolk County

~

Fabian G. Palomino #g M TAf Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo Governor of the State of New York

~

Stephldn B. L'atham " gg Twomey, Latham & Shea P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton 43 -

STATEMENT OF MATERIAL PACTS AS TO WHICH THERE EXISTS A GENUINE ISSUE TO BE HEARD ON MATTERS RAISED BY LILCO'S RECOND MOTION FOR

SUMMARY

DISPOSITION OF THE EBS ISSUE

1. Whether WCBS will participate in LILCO's EBS proposal.
2. Whether the stations in the State EBS that have not agreed to participate in LILCO's EBS proposal, including WALK Radio, will in fact participate.
3. Whether LILCO's EBS proposal still relies on WPLR, and !

if so, whether WPLR will participate.

4. Whether LILCO's EBS proposal still relies on the local or backup Shoreham EBS network, and if so, what station is being relied upon to activate that network.
5. Whether the adequacy of the coverage of WCBS meets regulatory requirements.
6. Whether WCBS' broadcasting on only an AM frequency satisfies regulatory requirements.
7. Whether the coverage of the State EBS is adequate to satisfy regulatory requirements.
8. Whether WCBS is capable of activating the broadcast receivers at the secondary stations in the State EBS.
9. Whether WCBS is capable of activating the tone alert radios installed (or to be installed) at special facilities throughout the 10-mile Shoreham EPZ.
10. Whether WALK Radio is capable of activating the tone alert radios installed (or to be installed) at special facilities throughout the 10-mile Shoreham EPZ.
11. How would the State or County or LILCO contact WCBS?
12. Whether the procedures established for the State or County or LILCO to contact WCBS are adequate to satisfy regulatory requirements.
13. How would WCBS activate the State EBS?
14. Whether the procedures established for WCBS to activate the State EBS are adequate to satisfy regulatory requirements.
15. Under what conditions would LILCO seek permission from New York State to activate the State EBS?

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16. Under what conditions would LILCO seek permission from Suffolk County to activate the State EBS?
17. Under what conditions would LILCO contact WCBS directly to activate the State EBS?
18. Under what conditions would LILCO attempt to activate the local or backup Shoreham EBS network?
19. What is meant by the term "problem or delay" in Revi-sion 10 to LILCO's Plan, at page 3.8-77
20. Under what conditions will the stations that are part of the local or backup Shoreham EBS network switch their signal source to WCBS?

1 Nf.ht m.

Ju1Mf, 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 88 J1.14 P5 :28 Before the Atomic Safety and Licensina Board ,.

00CK N >4 .

'.f BRANOi

)

-In the Matter of )

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-522-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power )

Station, Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the RESPONSE OF SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON IN OPPOSITION TO LILCO'S SECOND MOTION FOR

SUMMARY

DISPOSITION OF THE EBS ISSUE have been served on the following this 12th day of July, 1988 by U.S. mail, first class, postage prepaid.

James P. Gleason, Chairman Mr. Frederick J. Shon Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commisison U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 James P. Gleason, Chairman William R. Cumming, Esq.

513 Gilmoure Drive Spence W. Perry, Esq.

Silver Spring, Maryland 20901 office of Ceneral Counsel Federal Emergency Management Agency Dr. Jerry R. Kline 500 C Street, S.W., Room 840 Atomic Safety and Licensing Board Washington, D.C. 20472 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 W. Taylor Reveley, III, Esq.

Hunton & Williams i

Fabian G. Palomino, Esq. P.O. Box 1535 i Richard J. Zahnleuter, Esq. 707 East Main Street l Special Counsel to the Governor Richmond, Virginia 23212 Executive Chamber, Rm. 229 State Capitol Anthony F. Earley, Jr., Esq.

Albany, New York 12224 General Counsel Long Island Lighting Company l

Joel Blau, Esq. 175 East old Country Road Director, Utility Intervention Hicksville, New York 11801 N.Y. Consumer Protection Board Suite 1020 Albany, New York 12210 l

l a __ -.

E. Thomas Boyle, Esq. Ms. Elisabeth Taibbi, Clerk Suffolk. county Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Mr. L. F. Britt Long Island Lighting Company Stephen B. Latham, Esq.

Shoreham Nuclear Power Station Twomey,.Latham & Shea North County Road 33 West Second Street Wading River, New York 11792 Riverhead, New York 11901 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coaliticn U.S. Nuclear Regulatory Comm.

195 East Main Street 1717 H Street, N.W.

Smithtown, New York 11787 Washington, D.C. 20555 Alfred L. Nardelli, Esq. Hon. Patrick G. Halpin New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 Mr. Jay Kunkleburger Richard Bachmann, Esq.

New York State Energy Office Edwin J. Reis, Esq.

Agency Building 2 U.S. Nuclear Regulatory Comm.

Empire State Plaza Office of General Counsel Albany, New York 12223 Washington, D.C. 20555 David A. Brownlee, Esq. Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsyvania 15222 229 W. 43rd Street New York, New York 10036 Douglas J. Hynes, Councilman Town Board c' Oyster Bay Town Hall Oyster Bay, New York 11771 Michael S. Miller i

KIRKPATRICK & LCOKHART l 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891 l

2-

KIRKPATRICK & LOCKHART SOUTH Lo2BY . 97H Floor ExcHA*ct Pt.ACI 1800 M STREET, N.W.

TASHINGToN, D.C. 2C045891

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seib 227A100 1428 88UCKI11 AVEM.K MLO41. PL 3)ili namom een nSm m n 4i:2 nux w.w rt oc u ,, m .

TTLFCOMEA (20h M&913) Pf7T580LCH, PA 15222A!M MICHAEL S. MILLER H12135542 aon nseen May 3, 1988 BY TELECOPY 9

James N. Christman, Esq.

Hunton & Williams P.O. Box 1535 707 East Main Street Richmond, Virginia 23212

Dear Jim:

We were informed yesterday by Judge Gleason's secretary that the conference of counsel scheduled for this Wednesday, May 4, has been rescheduled by the Licensing Board until next Tuesday, May 10. We were not provided any reason for the change.

With the prehearing conference now scheduled to take place only a few days before trial on the remand issues is scheduled to begin, we thought that it might make sense to explore the possibility of agreeing upon a trial schedule. Such a schedule would permit everyone to take into account witness availability problems, so that, if at all possible, such problems can be accommodated. In addition, an agreed-upon trial schedule would offer a degree of certainty to-our own lives.

I have spoken with Rick Zahnleuter about approaching you with a' proposed schedule for the remand proceeding, and he is in agreement with the schedule we are proposing. That schedule is as follows:

Dates Issue May 17-20 EBS (LILCO, Suffolk County and FEMA witness panels)

May 24-25 Hospital Evacuation Time Estimates (LILCO, New York i

State, and NRC Staff witness panels) t 1

0

KIRKPATR]CK & LOCKHART James N. Christman, Ecq.

May 2, 1988 Page 2 May 26-27 and June 1-2 Schools (LILCO witnesses)

June _7-8 Schools (Suffolk County school official witnesses)

June 9-10 Schools (Suffolk County role conflict witnesses)

Consistent with past practice, the above schedule contemplates a four-day hearing week, Tuesday through Friday.

This would avoid weekend travel as much as possible. A normal hearing day would begin at 9:30 a.m. and last until approximately 5:00 p.m., with one-and-one-half hours for lunch. As in the past, the hearings would take place on Long Island, presumably at the Court of Claims courtroom in the New York State Office Building.

In developing this schedule, Suf folk County has assumed that the EBS issues would be part of the remanded hearings. We have.

just learned, however, that radio station WPLR-FM has apparently withdrawn from its agreement with LILCO to be the primary station for broadcasting emergency warnings in the event of a Shoreham accident. A copy of an April 28, 1988 story in the New Haven Register, reporting WPLR's withdrawal, is attached. In our view, WPLR's withdrawal, if true, would significantly change the posture of the EBS proceeding since, up until this time, the EBS issues have focused on the adequacy of LILCO's EBS proposal using WPLR as the primary, or trigger, broadcast station. We recognize, however, that LILCO has yet to advise the Licensing Board or the other parties of WPLR's withdrawal and the impact that such would have, in LILCO's opinion, on the upcoming hearings. Thus, the above proposal leaves intact the possibility of having to litigate the EBS issues at this time. We would expect LILCO to make clear its position on the pending EBS matters in the very near future, however, so that proper planning for the remand proceeding can proceed.

As can be seen, the above schedule is based on firm starting dates for each panel of witnesses. This approach worked quite well during last summer's reception center hearings and is desirable so that counsel and the witnesses will know exactly when each issue will be tried. As we agreed last summer, it would be understood that the witness panel dates would not be moved forward, even if the preceding panel finishes ahead of schedule, unless agreed to by the parties. Similarly, a panel would not begin later than the agreed-to date, without the agreement of the parties. In addition, if a party does not complete its cross-examination or redirect examination of a panel

KIRKPATRICK & LOCKHART James N. Christman, Esq.

May 2, 1988 Page 3

  • by the time the next witness panel is scheduled to commence, cross-examination or redirect examination rights would not thereby be extinguished or limited; if such examination is to be continued, however, it would have to be structured in a way that leaves the basic schedule substantially unaffected.

It also must be understood that even if a firm schedule can be agreed to, it may not eliminate all witness availability problems. Accordingly, certain. accommodations and adjustments to any schedule may be necessary to address a particular witness' unavailability or other unforeseen circumstances. For instance, one of the County's school official witnesses is presently unavailable on June 7, when the County school witnesses under the above schedule would be scheduled to appear. We believe that this matter can be resolved, but it must be. recognized that certain accommodations may have to be made. However, the "firm" starting date approach worked well last summer, and we therefore believe that it should be followed here.

You will note that there are no hearings ~ scheduled on May 31, which is the day after Memorial Day. Rather than continuing LILCO's witness panel on the school issues on May 31, we have adjusted our proposed schedide to resume the hearings on June 1; this takes into account travel problems that may arise from the Memorial Day weekend.

Similarly, under our proposal there are no hearings scheduled on June 3. We recognize that this results in a two-day hearing week, but believe that this is preferable than the alternative of beginning the County's school official witness panel on Friday, June 3, and then having to continue that panel on the following Tuesday, June 7.

Finally, it must be recognized that in developing the above schedule, the County has proceeded without the benefit of knowing either when the upcoming FEMA-graded exercise will be scheduled (assuming that one is held), or when the Appeal Board will schedule oral argument on the Frye Board's February 1, 1988 cecision (LBP-88-2). Under no circumstances would the County or the State agree to a schedule that results in the trial going forward concurrently with the exercise or oral argument before the Appeal Board.

l 1

~ 1 KIRKPATRICK & LOCKHART i

James N. Christman, Esq. j May 2,_1988 1

Page'4 i

l Please let me have your thoughts as soon as possible with respect to the schedule set forth above.

J Sincerely, M3chael S. Miller Enclosure cc: Richard J. Zahnleuter, Esq.

William R. Cumming, Esq.

Stephen B. Latham, Esq.

Charles A. Barth, Esq.

9 9

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June 20, 1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licer.sino Board

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

GOVERNMENTS' BRIEFING PAPER CONCERNING LILCO'S EMERGENCY BROADCAST SYSTEM I. INTRODUCTION This briefing paper concerning the status of LILCO's third, and most recent, Emergency Broadcast System ("EBSd) proposal is being submitted pursuant to this Board's bench Order of May 26, 1988. Tr. 20429. That Order was issued as a result of yet another change in LILCO's EBS proposal and LILCO's inability on May 26 to adequately describe the structure and operations of its new EBS plan. Egg Tr. 20424-29. This Board also ordered limited discovery so that the Governments could have an opportunity to ascertain the framewcrk of LILCO's EBS proposal, and the parties could offer recommendations as to how best to proceed.

Discovery has now been completed. To summarize, it appears that LILCO's newest EBS proposal consists of LILCO initially

[i

attempting to activate the New York State EBS network through that network's lead station, WCBS-AM in New York, New York. If that is unsuccessful, LILCO's proposal calls for the activation of its backup EBS network through WPLR-FM in New Haven, Connecticut. Regardless of which EBS network is activated, however, WPLR is relied upon by LILCO to activate the tone alert radios that are installed (or are to be installed) at various special facilities throughout the 10-mile Shoreham EPZ.

Although the interaction between I.-;20'- two alternative EBS networks is confusing and obscure, c. thing is clear: neither WCBS nor WPLR, the two statio/s relied upcn by LILCO to activate its EBS networks, has agreed to participate in any way in LILCO's EBS proposals. In fact, WPLR recently has specifically stated that it will H21 participate in LILCO's EBS proposal, and apparently, despite attempts by LILCO to obtain an agreement with WCBS to serve as LILCO's lead EBS station, that station has similarly refused to do so. Since there are no stations to activate either of the two EBS networks relied upon by LILCO, it must be concluded that LILCO's EBS proposal is not feasible, implementable or workable. Accordingly, this Board must rule &s a matter of law that LILCO does not have an implementable EBS proposal, and should grant summary disposition in favor of the Governments cn the Governments' existing EBS contention. The Governments propose, therefore, that the Board rescind ita Confirmatory Memorandum and Order of February 29, 1988 (barring

further summary disposition motions) and permit the Governments to file such a motion within 10 days of receipt of such Board notification.

II. BACKGROUND On June 11, 1987, the Commission issued a Memorandum and Orderl/ reopening the record on LILCO's EBS plan as a result of the withdrawal of WALK Radio as LILCO's primary or lead EBS station. On November 6, 1987, LILCO filed a Motion for Summary Disposition of the WALK Radio Issue.2/ LILCO's Motion introduced a new EBS proposal, based upon WPLR as the lead EBS station

("KPLR EBS pro'posal").

According to LILCO's Motion, and the' subsequently issued Revision 9 to the LILCO Plan, the functions of WPLR as a lead station were threefold. First, WPLR was to act as LILCO's "Common Point Control Station," a phrase introduced in Revision 9, by directly broadcasting emergency information concerning a Shoreham radiological emergency to the public. LILCO Plan at 3.B-6 (Revision 9). Sec.snd, WPLR wac to activate broadcast receivers installed (or to be installed) at each of the nine secondary stations comprising LILCO's EBS network, which would have enabled these secondary stations either to rebroadcast the 1/ CLI-87-5, 25 NRC 884 (1987).

2/' LILCO's Motion for Summary Disposition of the WALK Radio Issue ("LILCO's Motion").

EBS messages received from WPLR over their own frequencies, or to tape them for latur broadcast. Idi Third, WPLR wt; telled upon to activate tone alert radios installed (or to be installed) at various special facilities, such as schools, hospitals, nursing homes and major employers, throughout the 10-mile Shoreham EPZ.

LILCO Plan, Appendix A at IV-3, -170, -172 and -173.

This Board denied LIf,CO's Motion on December 21, 1987, and directed the Governments to submit contentions concerning the adequacy of LILCO's WPLR EBS proposal. The Governments submitted a single contention with numerous bases on January 12, 1988.

That contention alleged that LILCO's provisions for radio transmission of EBS messages and other emergency information, and for activation of tone alert radios and receivers installed at the secondary EBS stations, were inadequate and failed to comply with relevant regulatory requirements. Notwithstanding these allegations, this Board issued an Order on February 24, 1988, l which essentially limited the scope of the contention to the 1

I adequacy of the coverage of WPLR and to the adequacy of communication of emergency information to persons within the 10-mile Shoreham EP2.3/

l -

l Discovery on LILCO's WPLR EBS proposal ended on March 25, i .

1988. Testimony was filed by the Governments and LILCO on April l

l I

j 3/ Memorandum and Order (Board Ruling on Contentions Relating l to LILCO's Emergency Broadcast System), dated February 24, 1988, l

4 -

g e 13, and by FEMA on April 28, and hearings on this issue were contemplated to begin the following month, on or about May 16.

On May 6, 1988, however, LILCO disclosed that it was now relying upon a significantly different EBS proposal, which would be described in detail in Revision 10 of LILCO's Plan. Among other things, LILCO then revealed for the first time that WPLR had announced to LILCO that it intended to withdraw as the lead station in LILCO's proposed EBS network, if LILCO were ever issued a full power lic'ense. LILCO further explained that WGLI, which had been a secondary station in the WPLR EBS network, had agreed to take over as the lead station in LILCO's EBS network.

Also on May 6, LILCO revealed for the first time that LILCO would not initially rely on its own EBS network , but would rather first attempt to activate the New York State EBS network, with WCBS-AM as the lead station ("WCBS EBS network"). LILCO, however, provided only a very cryptic and confusing description of how the WCBS EBS network would be activated and how it would interact with the LILCO EBS network that now included WGLI as the lead station. Egg Exhibit 1 hereto.

l On May 9, counsel for LILCO notified this Board by letter i that in the event that LILCO received a full power operating license for Shoreham, WPLR would no longer agree to serve as the lead station in LILCO's EBS network. Egg Exhibit 2 hereto for a copy of LILCO's May 9 letter. Counsel for LILCO assured the

Board, however, that. WPLR had agreed to remain in LILCO's EBS network and that it would continue to act as the station that activated "the tone alert radios in the EBS," although it would no: act "as the ' trigger' station for the radio station (s) in the EBS." The letter cor. ceded that LILCO needed to determine "how any restructuring of its EBS will be implemented," but concluded that it was "appropriate and desirable" to proceed with the hearing on the admitted EBS issues. Egg Exhibit 2.

The status of the Governments' EBS contention and the issues raised therein were discussed at a prehearing conferenc'e of counsel on May 10, 1988. Egg Tr. 19325-49.- Counsel for LILCO there argued that the issue of WPLR's coverage should be litigated because although WPLR was not going to be the lead station in LILCO's EBS network, it had agreed to participate in LILCO's proposed EBS in some capacity. However, because counsel for LILCO was unable to explain adequately the structure of its l EBS system or how xt would operate, this Board ordered LILCO to i file a briefing paper concerning the status of its EBS proposal and whether a hearing on the issue should proceed.

{

LILCO did not submit such a briefing paper. Instead, on May l 16, LILCO sent a letter to the Board that once again stated that WPLR would not act as the lead station in LILCO's proposed EBS in the event that LILCO obtained a full pcwer operating license, and, for the first time, informed the Board that WPLR's continued l

1

\

participation in LILCO's EBS, even as a secondary station, was unclear. A copy of LILCO's May 16 letter is attached as Exhibit 3 hereto. LILCO's letter included as an attachment a May 9 letter from counsel for WPLR, which amended WPLR's agreement to participate in LILCO's proposed EBS network. That letter stated, in relevant part:

WPLR-FM, however, will not act in that capacity (primary br.cadcast station) should thn NRC grant licensure to full power. Should the community need then exist in the olant's full oower operation, WPLR would consider servina in a secondary capacity. (Emphasis added.)

On May 24, LILCO issued Revision 10 to the LILCO Plan.

Relevant portions of Revision 10 are attached as Exhibit 4 hereto. While Revision 10 indicates that LILCO will initially rely on the New York State EBS, with WCBS as the lead station, it also claims that the "Shoreham local EBS network" will serve as a backup to the State EBS. However, contrary to previous LILCO representations, Revision 10 does not rely on WGLI as the lead station of the "Shoreham local EBS network." Rather, Revision 10 calls for WPLR to once again assume that role. Indeed, contrary to WPLR's letter of May 9 -- which states that WPLR would only "consider serving in a secondary capacity" -- Revision 10 states that WPLR has agreed, if needed, "to remain a member station" of the Shoreham local EBS and that the other participating stations in the Shoreham local EBS "will tune to WPLR and rebroadcast an l

7 -

EBS message coming from the LERO EOC" upon activation of WPLR's dual tone EBS signal. LILCO Plan, 3.8-7 (Revision 10).

On May 25, counsel for LILCO sent a letter to the Board discussing the changes in LILCO's EBS proposal as set forth in Revision 10. A copy of LILCO's May 25 letter is attached as Exhibit 5. The letter states that Revision 10 provides for the "direct activation of the Shoreham EBS through WPLR." The letter also states that "LILCO believes that these revisions adequately resolve all EBS issues." .

On May 26, however, during hearings before this Board, Judge Gleason raised the EBS issue and expressed his confusion over LILCO's description of its EBS proposal in the May 25 letter.

Relevant portions of the May 26 transcript are attached as Exhibit 6. When counsel for LILCO was unable to explain adequately the proposal, this Board ordered limited discovery with respect to LILCO's EBS p'oposal.1/ The Board also ordered the parties to submit a briefing paper shortly thereafter concerning how best to proceed.

l On June 6, counsel for WPLR sent a letter to counsel for LILCO which clearly and unequivocably stated that WPLR was terminating its agreement to participate in LILCO's proposed EBS 1/ The Board ordered discovery to "provide an opportunity for parties to have discovery with respect to whatever it is you (LILCO) are proposing." Tr. 20429.

4 network.1/ The June 6 letter is attached hereto as Exhibit 7.

According to counsel for WPLR, some type of notice of termination had been given to LILCO on June 3.

III. DISCOVERY Because of the unavailability of LILCO's lead EBS witness, Douglas Crocker, until June 13, the discovery period was extended by the Board to that date. Mr. Crocker was deposed on June 13; in addition, LILCO produced two documents in response to a document request made by the Governments. The Governments bel $ eve that this limited discovery was sufficient to determine the framework of LILCO's EBS proposal, and that nothing more is needed.

Counsel for LILCO initially disagreed with this position, notifying counsel for the Governments that they believed that the limited EBS discovery period ordered by the Board -- a period designed to permit the parties to discover what LILCO was proposing (Egg note 4 above) -- also permitted the depositions of County and State personnel -- specifically, John Randolph, G.

Berkeley Bennett, John Bilello and Richard Jones of Suffolk County and.Marvin Silverman of New York State. Counsel for 1/ The agreement between IILCO and WPLR, dated July 27, 1987, requires either party to give 90 days written notice to terminate the agreement.

_g_

,,, - - , . - - -,m , - --- , - - - - - , y - - - - - - - - - - - , -

Suffolk County informed counsel for LILCO that these proposed-deponents would not be produced, because the discovery contemplated by the Board was limited to determining what LILCO's Revision 10 was all about, and these proposed deponents clearly were not relevant for such purposes. Egg letter of Michael J.

Missal to Donald P. Irwin and K. Dennis Sisk, dated June 10, 1988 (attached as Exhibit 8 hereto). Nonetheless, up until last Friday, June 17, counsel for LILCO stated their disagreement with this position, asserting that these proposed deponents were relevant, because they "may have knowledge of the technical adequacy of the State EBS." Egg, e.a., letter of K. Dennis Sisk to Michael J. Missal and Richard J. Zahnleuter, dated June 13, 1988 (attached as Exhibit 9 hereto).

As previously noted, however, the depositions of County and State personnel were not envisioned by the Board's May 26 Order, and would be a wasted exercise in any event, because none of the proposed deponents has any role in LILCO's Revision 10, is aware of the EBS proposal in Revision 10, or has even seen Revision 10.6/ In fact, during the deposition of LILCO's Douglas Crocker, it was conceded that the only Suffolk County official even 6/ In addition, depositions of the County and State employees identified by LILCO would be inappropriate, because LILCO has already gone through the process of formulating and finalizing the EBS provisions now set forth in Revision 10. As Mr. Crocker stated during his deposition (at pages 70-71), LILCO considers the Revision 10 EBS provisions to be "complete," satisfactory,"

and "reliable." Thus, in LILCO's view, there are no details of its EBS proposal that need to be added. Under tnese circumstances, after-the-fact depositions of County / State employees would be plainly untimely, wasteful and improper.

mentioned in Revision 10 concerning LILCO's EBS proposal was the Suffolk County Executive or his designee. Egg Deposition of Douglas Crocker, June 13, 1988 ("Crocker Deposition") at 21-24 (attached as Exhibit 10). Therefore, whether or not the proposed deponents have any "knowledge of the technical adequacy of the State EBS" is totally irrelevant to the scope of the limited discovery ordered by this Board. Accordingly, they should not be required to be deposed in this proceeding.1/

IV. LILCO's CURRENT EBS PROPOSAL At best as it can be determined by reviewing the latest version of the LILCO Plan (relevant portions of which are ,

attached as Exhibit 4), and as explained during the deposition of Douglas-Crocker, LILCO's current EBS proposal consists of the following general procedures:

1) In the event of a Shoreham emergency declaration, LERO will request that the Suffolk County Executive or his designee activate the State EBS network by contacting WCBS to broadcast EBS messages to the public and to contact the other 1/ In any event, counsel for LILCO announced during the Board telephone conference on June 17 that LILCO was no longer seeking to depose County and State personnel on EBS-related issues. Tr.

20890-91.

stations in the State EBS network to broadcast EBS messages;

2) If the Suffolk County Executive or his designee fails to activate the State EBS, LERO will then request that the State Emergency Management Organization ("SEMO") activate the State EBS network by contacting WCBS;
3) If SEMO fails to activate the State EBS, LERO will then contact WCBS directly to activate the State EBS network;
4) If after some unspecified time there is a ". problem or delay 'in activating" the State EBS network, LERO would then activate LILCO's proposed EBS l

t network, which it refers to as a backup network, I with WPLR as the lead station. To activate l

LILCO's proposed EBS network, LERO would then go l

back to the Suffolk County Executive or his designee and request that WPLR be contacted to issue EBS messages to the public and to contact the other stations in LILCO's proposed EBS network to broadcast EBS messages. If the Suffolk County Executive or his designee fails to activate 1

l

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

.e 1

LILCO's proposed EBS, then LERO would contact WPLR directly; and 5)- Whether or not WCBS or WPLR is used to activate LILCO's EBS, LILCO's EBS proposal presumes that-WPLR will activate the tone alert radios installed (or to be installed) at'various special facilities.

throughout the 10-mile Shoreham EPZ.

LILCO's EBS proposal is therefore dependent upon the participation of WCBS and WPLR to activate the two EBS networks (the State EBS and LILCO's proposed backup EBS) by broadcasting messages to the'public, contacting the stations participating in the EBS networks, and activating the tone alert radios at various special facilities within the EPZ. However, as evidenced by Exhibits 3 and 7 hereto, WPLR has specifically stated that it will not participate in LILCO's EBS proposal, either as a lead station or a secondary station. Indeed, Mr. Crocker confirmed during his deposition that WPLR was no longer participating in LILCO's EBS proposal. Egg, e,q., Crocker Deposition at 80 (attached as Exhibit 11). Mr. Crocker also confirmed that there is no letter of agreement with WCBS to participate in LILCO's EBS proposal (like there had been when WALK and WPLR were the lead i

stations of LILCO's earlier EBS proposals), nor is there any "informal" agreement. Sea Crocker Deposition at 19 (attached as Exhibit 12).

- - ,-,,,,...-e- -,,.~-ma- ,v, m.,--,-q-,,,m-.n,,-,-. _ ,-. ,, ,-----n,-.. . , , , , - ,,~ewn- - - - - -n--

.o .

Therefore, as the radio stations that are necessary for the activation of LILCO's-EBS networks are not willing to participate in LILCO's EBS proposals, it can only be concluded that LILCO's EBS proposals are only a figment of LILCO's imagination. Put another way, because there are no lead stations to activate either one of the EBS networks that LILCO relies upon, LILCO's EBS propesal is not feasible, implementable or workable.

V. THE BOARD SHOULD GRANT

SUMMARY

DISPOSITION OF THE GOVERNMENTS' EBS CONTENTION The EBS contention that this Board has admitted, and which was to be the subject of the previously scheduled hearing, focused primarily on the adequacy of WPLR to act as the lead station of LILCO's EBS network. It would therefore be a waste of .

time and resources to hold a hearing concerning the. adequacy of WPLR, because WPLR has clearly and definitively stated that it will not participate in any capacity in LILCO's proposed EBS network. Additionally, it vould be similarly ill-advised to hold l

a hearing concerning the adequacy of WCBS to serve as LILCO's lead EBS station, because that station has not agreed to l participate in LILCO's proposal.8/

8/ It can be expected that counsel for LILCO may propose resolving the EBS issue in the context of the "realism" proceeding. Such a proposal, however, would be without merit.

l The "realism" proceeding focuses on the presumption that the Governments would participate in emergency planning in the event of a radiological emergency. LILCO's EBS proposal, however, provides for LILCO to activate its EBS networks by contacting WCBS and WPLR directly, if the Governments are unable or (footnote continued)

- 14 _

m It appears to the Governments, therefore, that the only option available to this-Board is to rule as a matter of law that LILCO does not have a feasible, implementable or workable EBS preposal, and to grant summary disposition of the Governments' existing EBS contention. The Governments recognize, however, that this Board has prohibited the filing of motions for summary disposition. Egg Confirmatory Memorandum and Order, dated February 29, 1988. The Board is therefore requested to rescind its prohibition of summary disposition motions, so that the Governments can file the appropriate moving papers within a short period of time -- 10 days would seem appropriate.

VI. CONCLUSION For the reasons set forth above, the Board must rule as a matter of law thac LILCO does not have a feasible, implementable or workable EBS proposal. Thus, the Board should allow the (footnote continued from previous page) unwilling to do so first. Egg LILCO Plan, at 3.8-7 (Revision 10). Therefore, as LILCO's EBS proposal is not dependent upon the Governments' participation, the EBS issue is separate and aparc from any "realism" issue. In fact, counsel for LILCO has previously indicated as much. Egg Tr. 20429.

15 -

Governments to submit a motion seeking summary disposition in their favor on the EBS contention presently before the Board.

Respectfully submitted, E. Thomas Boyle, Esquire Suffolk County Attorney Bldg. 158, North County Complex Veterans Memorial Highway Hauppauge, New York 11788 Michael S'. ' Miller Michael J. Missal KIRKPATRICK & LOCKHART 1800 M Street, NW South Lobby - Ninth Floor Washington, DC 20036-5891 Attorneys for Suffolk County Fabian G. Palomino '/

M Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 l Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo Governor of the State of New York l

Orthl//t/

/ 7 Stephen B. Latham Twomey, Latham & Shea l P.O. Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton

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

c June 20,.1988 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Board

)

In the Matter of )

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

) (Emergency Planning)

(Shoreham Nuclear Power )

Station, Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the GOVERNMENTS' BRIEFING PAPER CONCERNING LILCO'S EMERGENCY BROADCAST SYSTEM have been served on the following this 20th' day of June, 1988 by U.S. mail, first class, unless otherwise noted.

' James P. Gleason, Chairman *Mr. Frederick J. Shon Atomic Safety and Licensing Board Atomic Safety and Licensing Boa'rd U.S. Nuclear Regulatory Commisison U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555

  • James P. Gleason, Chairman
  • William R. Cumming, Esq.

513 Gilmoure Drive Spence W. Perry, Esq.

Silver Spring, Maryland 20901 office of General Counsel Federal Emergency Management Agency

  • Dr. Jerry R. Kline 500 C Street, S.W., Room 840 Atomic Safety and Licensing Board Washington, D.C. 20472 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 **W. Taylor Reveley, III, Esq.

l Hunton & Williams i Fabian G. Palomino, Esq. P.O. Box 1535 i

Richard J. Zahnleuter, Esq. 707 East Main Street Special Counsel to the Governor Richmond, Virginia 23212 Executive Chamber, Rm. 229 l State Capitol Anthony F. Earley, Jr., Esq.

[ Albany, New York 12224 General Counsel Long Island Lighting Company Joel Blau, Esq. 175 East Old Country Road Director, Utility Intervention Hicksville, New York 11801 N.Y. Consumer Protection Board Suite 1020 Albany, New York 12210

E. Thomas Boyle, Esq. Ms. Elisabeth Talbbi, Clerk Suffolk County Attorney Suffolk County Legislature Bldg. 158 North County Complex Suffolk County Legislature Veterans Memorial Highway Office Building Hauppauge, New York 11788 Veterans Memorial Highway- .

Hauppauge, New York 11788 Mr. L. F. Britt Long Island Lighting Company Stephen B. Latham, Esq.

Choreham Nuclear Power Station Twomey, Latham & Shea North County Road 33 West Second Street Wading River, New York 11792 Riverhead, New York 11901 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.

195 East Main Street 1717 H Street, N.W.

Smithtown, New York 11787 Washington, D.C. 20555 Alfred L. Nardelli, Esq. Hon. Patrick G. Halpin New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room.3-ll6 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York l??92 Mr. Jay Kunkleburger

  • Richard Bachmann, Esq.

New York State Energy Office Edwin J. Reis, Esq.

Agency Building 2 U.S. Nuclear Regulatory Comm.

Empire State Plaza Office of General Counsel Albany, New York 12223 Washington, D.C. 20$55 David A. Brownlee, Esq. Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsyvania 15222 229 W. 43rd Street New York, New York 10036 Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771 Michael S. Miller KIRKPATRICK & LCOKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C. 20036-5891

  • Service via hand delivery.
    • Service via telecopy.

2-

\

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

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, ) (Best Efforts Issue)

Unit 1) )

TESTIMONY OF DENNIS M. BEHR, DOUGLAS M. CROCKER, DIANE P. DREIKORN, -

EDWARD B. LIEBERMAN, AND JOHN A. WEISMANTLE ON THE ."BEST EFFORTS" CONTENTIONS EP 1-2, 4-8. AND 10 I

Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 May 6,1988

. . - . . . - . - _ _ _ _ . . . - , _ - - _ . . _ _ _ _ _ _ _ _ . _ _ y, _ -.

~58-companies to move their disabled cars. We cannot see why similar activi-ties would suddenly become illegal in a radiological emergency.

88. Q. Does LILCO ever remove road impedimentsin the course of its business?

A. (Crocker, Weismant!e] Yes. As the attached Affidavit of Charles A.

Daverio shows (page 9), LILCO has in the past been asked by the authorities to tow a stranded vehicle. During his deposition, Chief Roberts confirmed that private entities, such as a utility, can be and have been directed by the police to perform such functions. Roberts deposition, p.151.

Contention 5: Sirens /EBS

89. Q. Please state Contention 5 as rewritten by the Board. -

A. (Behr, Crocker Weismantle) Contention 5 reads as follows:

Whether LILCO's emergency plan and the best efforts response of the State and County governments will sat-isfy regulatory requirements cor.cerning activating si-rens and directing the broadcast and contents of emer-gency broadcast system messages to the public.

April 8 Memorandum at 26.

90. Q. Does the LERO Plan have administrative and physical means for alerting and providing prompt instructions to the public within the plume exposure pathway EPZ?

A. (Behr, Crocker, Weismantle] Yes. The means include sirens and an Emer-gency Broadcast System (EBS).

91. Q. What did the Voorhees plan say about the sirens?

A. (Weismantle) The Voorhees plan contemplated that the siren system would be used to alert the public. Voorhees plan, page 16.

53-

92. Q. How are the LERO sirens activated?

A. (Behr, Crocker, Weismantle) The sirens can be activated from any of three different locations by LILCO or LERO Admitted Fact 7. We antici-pate that the State or County would ask us to sound the sirens as soon as it became necessary to alert the public.

1

93. Q. What would the sirens mean to tne public?

A. (Behr, Crocker, Weismantle) Under the LERO Plan, the sirens alert peo-l ple to tune their radios to the EBS. The public is told this in the annual public education brochure and by a variety of other means.

94. Q. What EBS will LERO use? -

A. (Behr. Crocker, Weismantle) The LERO EBS at this time includes WPLR of New Haven, Connecticut, as the common point control station (CPCS).

i The coverage of this EBS is being separately litigated. Within the past few l

days, however, WPLR has advised us that it will continue as the CPCS only until Shoreham is issued a full-power license. This decision by the station came at a time when the New Haven Board of Aldermen was about to pass a resolution condemning WPLR's participation in the EBS for Shoreham, when a U.S. Congressman was pressuring the station not to participate, and when anti-Shoreham groups were pressuring the station's advertisers.

Af ter Shoreham is issued a full-power Ucense, WPLR is willing to continue as a primary station. WGLI, one of our present primary stations, has agreed to take over as the CPCS. .

Howe,er,in light of the fat:t that LILCO has now twice put together an EE3 and than had to change it, in the future we will rely in the first in-stan :he ordm cy Sttte EBS, with WCBS of New York City as its l .

i Common Program Control Station-1. The details of the system are given in Admitted Facts 14-27. The present procedure. OP!P 3.8.2 5 5.1,4 (Rev. 9). l

.already addresses the possibility of switching from the WPLR system to the WCBS system once an emergency has begun. Included in the WCBS EBS are WALK and the other radio stations in LILCO's original EBS. Accordingly, there is no question that coverage of the entire EPZ is provided.

Accordingly, in the future, if there is an emergency at Shoreham requiring the activation of an EBS, the LERO Director of Local Response will ask the Suffolk County Executive to activate or endorse activation of the WCBS system. Furthermore, the State Plan makes clear that the State Emergency Stanagement Offibe can coordinate the issuance of EBS mes-sages if county personnel have difficulty doing so. State Plan at K-8. The Director will then call WCBS directly and ask it to broadcast a message, which he will be prepared to read over the phone directly onto the air. The LERO Director has copies of the prewritten EBS messages in the LERO Plan with him at all times. Sample 51essage A, a simple warning that an emergency message is to follow (PID. 21 NRC at 757-58). is only three paragraphs long and can be read quickJy.

If there is any undue delay in activating the WCBS system, the LERO Director will ask the County Executive to endorse activating the Shoreham local EBS.

Also, as called for under OPIP 3.8.2 5 5.1.4a, the LERO Coordinator of Public Information, when WCBS takes over as CPCS, will call WPLR and ask it to transmit the two-tone attention signal and inform its listeners to tune to WCBS for further emergency information. This step is to be re-peated each time a new EBS message is issued in order to activate the tone alert radios.

95. Q. How are EBS messages prepared and broadcast under the LERO Plan?

A. (Behr, Crocker, Weismantle] EBS messages are governed by OP!P 3.8.2 (Emergency Broadcast System Activation).

96. Q. How exactly would EBS messages be written with a County and State "best efforts" response?

A. (Behr, Crocker, Weismantle] Prewritten sample EBS messages in OPIP 3.8.2, modified as necessary, would be used. Final decisions on the EBS messages would be coordinated with the County or State, with the County Executive or the State Chairman of the DPC giving the final approval.

97. Q. How much delay in sounding the sirens would you expect the "best efforts" participation of the County and State to cause?

A. (Behr, Crocker, Weismantle] There would be no delay. We would expect that once a decision had been made to broadcast an EBS message, the sirens would be sounded at the same time as the EBS was activated.

98. Q. How much delay in broadcasting EBS messages would you expect the."best efforts" participation of the State and County to cause?

A. (Behr, Crocker. Weismantle] There would be no delay in broadcasting EBS messages either. Again, once a decision had been made on a protective ac-tion, an EBS message would go out immediately af terward to tell the public what they should do. It makes sense that the County and State would want

to tell the public right away about any decisions they had made.

l 1

99. Q. Does the Plan meet the time requirements in NRC regulations?

l

! A. (Crocker, Weismantle] Yes. The Licensing Board has noted two 15-l minute requirements:

l l

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The regulations therefore have two separate 15-minute notification requirements. The first requires the 11-censee to transmit notice of an emergency at the plant to offsite authorities within 15 minutes af ter the emer-gency is recognized. The second requires offsite au-thorities to make a prompt public notification decision and to have the capability to carry out that decision ,

within 15 minutes of their receipt of a notification of emergency at the plant.

P!D,21 NRC at 708. The Board has also found that, for a utility plan, it is LERO that is the offsite authorities" for the purposes of the first 15-minute requirement:

In this unique case State and local officials are not the offsite authorities who will receive the initial .

notification from the Shoreham control room, since New York and Suffolk County are not participating in emergency planning. Instead LILCO plans for that no-tification to be received at its Customer Service Office in Hicksville, New York. LILCO Plan at 3.3-1 to 3.3-4.

P!D,21 NRC at 708-09. The County Police and County EOC (as well as the State, assuming it has reconnected its RECS phones) are notified by RECS phone at the same time as the Customer Service Office.

The second 15-minute requirement covers the time from when a de-cision is made until an EBS message is broadcast. The clock Starts running when an EBS message is approved (that is, when Suffolk County or the State agrees to broadcast it), and the message is supposed to start going out over the air within 15 minutes af ter that.

l Under the LERO Plan, with the "best efforts" participation cf the l State and County,(1) decisions would be made with the participation of the (

County and/or State representatives, (2) an EBS message from the Plan would be prepared with the concurrence of the County and/or State, and (3) l the message would be read over the phone to WCBS and broadcast at the same time. It is this third step, reading the message, that must be begun within 15 minutes.

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...e ..... ....... 72s TELECOPY James P. Gleason, Chairman Dr. Jerry R. Kline

, Mr. Frederick J. Shon Administrative Judges Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Gentlemen This matter treats two issues:

scheduling.

EBS stations and hearing

1. EBS LILC0 confirms a recent development, initially reported in LILCO's written "realism" testimony filed May 6, 1988, regacding LILCO's Emergency Broadcast System (EBS).

WPLR-FM in New Haven, Connecticut currently is the CPCS or "trigger' station in LILC0's EBS.

WPLR-FM has assured LILC0 that proceedings. WPLA has recently informedthrough it will continue as the "trigger" station the licensing LILCo, however, that once LILCO obtains a full power operating license for the Shoreham Nucle.r Power Station (SNPS), WPLR-FM will remain in LILCO's testimony BBS as as a memberstation) a "primary" station only.

(referred to in our realism As a member station, WPLR will continue to act as the station triggering the tone alert radios in the ESS. Movever, it will not act thereafter as the ' trigger

  • station for the radio station in the EBs.

Because NPLR will remain a part of the EBS both before and after licensing, with respect to the evidentiary hearings on remanded issues which are set to begin May 16, 1988, LILCO believes it is appropriate and desirable to proceed with the hearing on the admitted BBS issues regarding the coverage of LILCO's EB8, including WPLR. Once LILC0 determines how any restructuring of its EBS will be implemented, we will promptly so inform this Board and all parties.

HUNToy & WILLI Aus Atomic Safety and Licensing Board

' -May 9, 1988 Page 2

2. Hearing Schedule LILCO also informs the Board that the parties have been discussing a hearing schedule for the remanded school bus. driver, hospital ETE's, and EBS issues. LILCO proposes that the school bus driver issue be heard first, beginning May 16 and ending May 19 or and 27 20; that testimony on the hospital ETE's be heard May 23-24 that the EBS only (the day the NRC's witness will be available): and issue be heard May 25-26 and possibly May 31, if the Board decides to hear the FEMA witness in Washington, D.C.

Counsel for both FEMA and the NRC have agreed to this schedule.

The Intervenors have proposed a schedule beginning May 17 and continuing five weeks through June 10 with EBs being hoard first, hospital heard ETE's next, and the school bus driver issue being last. Intervenors have also stated that they would agree to LILCO's school bus driver witnesses being heard first.

However, they have been unwilling to agree to compress their schedule proposals to fit into anything less than five weeks.

LILCO believes that five weeks of hearings is plainly excessive for the issues now before this Board.

16 as the beginning of the hearing,LILco Son;etold weeks its school ago, inbus response to th driver witnesses to hold open May 16-17 for hearings. LILCO's witnesses have done so and are prepared to proceed on May 16 on the school bus driver issue. LILeo's witnesses on EBS and ETE's May prepared are to proceed the second week of hearings, beginning on 23.

l The short of the matter is that LILCO and the Intervenors have not been able to agree on an order of issues for the hearing, the appropriate length of the hearing, or other matters.

We will be prepared to discuss this matter at tomorrow's prehearing conference if the Board wishes.

Sincerely yours, (

    • I G?M .

Donald P. Irwin /7/

James N. Christman / \

, K. Dennis Sisk '

201/374 cca Service List

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  • May 16, 1988 ..a ..

James P. Gleason, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 EBS Romand Gentlemen:

As this Board knows, LILCO initially crested a specific Emergency Broadcast System network for.the Shoreham Nuclear Power Station in 1983, as part of the offsite emergency plan it developed after Suffolk County reversed its earlier course of cooperation. That network was originally based on a Long Island Station, NALK, which was to serve as the "trigger" station ("Com-non Program Control Station" or 'CPCS-1" station in FCC termino 1- '

ogy). EBS issues involving that network were litigated in the original round of emergency planning litigation decided by the Licensing Board in 1985.

WALK unilaterally terminated its agreement with LILCO in 1986. The only explanation LILCO has ever received for this withdrawal was the hostility of Suffolk County and New York State to emergency planning at Shoreham and to the emergency plan developed by LILCO for Shoreham.

LILCO next cohstructed a successor EBS system, based on

~

WPLR-FM, a station located in New Haven, Connecticut. Recently, following months of pressure from groups based on Long Island as well as in New Haven, events similar to those which took place with WALK two years ago have recurred. In late April, 1988, the New Haven Board of Aldermen enacted a nonbinding resolution urging WPLR to repudiate its agreement with LILCO. The local Congressman, Bruce Morrison, also pressured the station to with-draw.

3,./1 Ann - /

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- ~_ m May 16, 1988 Page 2 Discussion at the May 10 Prehearing Conference concerned the likelihood that WPLR would no longer serve as the 'CPCS-l' sta-tion for the Shoreham EBS following receipt of a full power license. Since the prehearing conference, two sets of develop-ments have continued to unfolds neither has come to a definitive resolution. First, after the prehearing conference LILCO received a letter from WPLR's counsel, Herbert Emanuelson, Esq.,

dated May 9. In the letter, WPLR has again assured LIL.C0 that it will continue to act as the lead or trigger station in the LILC0 EBS until LILCO obtains a full power operating license, but will not do so thereafter. Unlike the situation with WALK, the letter does not exclude WPLR's continued participation in the Shoreham EBS. However, WPLR's letter is not clear as to whether WPLR will remain a member station in the EBS after LILCO obtains a full power operating license.

Second, LILCO currently is making progress on the details of its EBS procedures relying upon the official EBS for the Nassau and Suffolk Counties operational Area, triggered by WCBS. We anticipate being able to notify the Board and the partiesSince shortly as to the interface of this system with the LILCO Plan.

the WCBS-based EBS provides more than adequate coverage of the

, shoreham EP2, this may moot the need to litigate the coverage of l the WPLR-based system.

LILCO has concluded that any Shoreham-specific EBS is likely to be vulnerable to pressure. LILCO will therefore rely primarily on the existing federal EBS for the Nassau and Suffolk l Counties operational Area, based on WCBS in New York City. This system, which is the one on which Long Islanders now rely for warning in every other emergency, and its application to Shoreham will be described in Revision 10 to the Shoreham of fsite Ener-gency Plan, which LILCO expects to issue this week.

LILCO is not withdrawing its testimony on the signal cover-age of the WPLR-based EBS. However, until the circumstances described above are clarified, LILCO believes that it is prema-ture to proceed to hearing at this time on the existing EBS con-tention.

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LILCO regrets that circumstances beyond its control have repeatedly forced reconfiguration of its EBS plans. However, emergency plans always change to adapt to circumstances, and fur-  ;

ther changes will doubtless occur in this plan, perhaps even in this very area, over time.

Sincerely your ,

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Donald P. Irwin James N. Christman K. Dennis Sisk Attachment cc: Attached Service List e

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EMANUELSON AND CHURCH ATTORNEYS AND COUNSELLORS PLEAsE REPLY TO:

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catoazet stata enumen NEW H AVEN' CONNECTICUT o851o wtw Mavtw countetacut oesto ustetet w cwvnen.Jn TELEPaows taosi ssa-eit?

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tr6tpucht. taosi eda esoo Mr. Ira L. Freilicher Long Island Lighting Company 175 East Old Country Road Bicksville, New York 11801

Dear Ira:

This letter is to provide notice that WPLR is amending its June 17, 1987, Agreement with LILCO pursuant to such Agreement as follows:

Until further notice, WPLR-TH will cont'inue service as a primary broadcast station to provide Emergency Public Notification during Shoreham's current licensure. WPLR-FM, however, will not act in that capacity should the NRC grant licensure to full power. Should the cot:n= unity need then exist in the plant's full power operation, WPLR vould consider serving in a secondary capacity.

Sincerely, Herbert L. Emanuelson, Jr.

Counsel for WPLR-FM HIE / gal cc Manuel V. Rodriguez i

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t Emergency Broadcast System (EBS) 1 2 l

, The Emergency Broadcast System, or EBS, is a federally sponsored 3!

network of radio and television stations that provides a ra 4 L maar.s of contacting the public during emergency situations.pid 5

47 C.F.R. Part 73 Subpart G, Section 73.901, et seq. It 6 l operates on Nation,al, State, and Operational Area D eal) levels. */

8 The New York State Emergency Broadcast System is activated by a 9 repast from authorized of ficials to the State's Originating 10 Primary Relay Stations: WABC WNBC and WCBS in New York City. 11 For emergency situations not involving the entire State, local 12 authorities may request activation of the EBS at the Operational 13 Area level through the Common Program Control Station (CPCS) 14 serving the affected area. New York State Emergency Broadcast 15 Operational Plan (July 1981) at 2. Federal regu- 16 System lations perm (EBS)it the EBS at the State and local level to also be 17 hetivated at the discretion of the management of the partici- 18 19 patingofficials, ment broadcast stations, in connect ion with day-to-day emergency situa-even without 20 the req tions posing a threat to the safety of life and property. 21 47 C.F.R. Section 73.935(a). The New York State EBS Plan 22 implementing the federal structure specifically includes 23 "radiological incidents" within this class of life- or property- 24 threatening events. New York State EBS Operational Plan at 2. 25 26 The State-level EBS applicable to Shoreham is the New York 27 State system. The local Operational Area system applicable to 28 Shoreham is the Nassau-Suffolk Counties Operational Area. The 29 New York State EBS Operationsi Plan specifies the composition of 30 and basic procedures for the State and Operational Area systems. 31 32 The EBS for the Nassau and Suffolk Counties Operational Area is 33 comprised of over 30 Long Island radio stations. The New York 34 State EBS Plan designates WCBS in New York City as the primary 35 originating station (referred to as "PRI CPCS-1") for the 36 Nassau and Suffolk Counties operational area. WCBS is a fifty 37 kW clear-channel, 24-hour AM station whose signal provides 38 coverage'over the entire Shoreham 10-mile EPZ. With its cas- 39 cading relays it ensures redundant coverage of the Jhoreham EPZ. 40 Included in the State network is WALK in Patchegue, formerly the 41 CPCS in the Shoreham local EBS. 42 43 In the event of a Shoreham emergency declaration, the Director 44 of Local Response will seek permission from the Suffolk County 45 Executive, or his designee to activate the Nassau-Suffolk Oper- 46 ational Area EBS prior to 1ssuing an EBS message. OPIP 3.1.1, 47 Attachment 10, Step D. In the event that the LERO Director is 48 unable to contact ne Suffolk County Executive or some other 49 responsible County official in a timely manner, the LERO Direc- 50 tor will seek permission from New York State ot activate the 51 EBS through the New York State Emergency Management Office (SEMO) . 52 SEMO is designated by the New York State EBS Operational Plan at 53 4 as being responsible for activating the State level EBS. 54 3.8-6 Rev. 10

The Director of Local Response will request the official WCBS-EBS 1 authentication code for WCBS or, as necessary, other authentica- 2 tion assistance from pertinent County of State officials. If 3 that official is unable to provide the official authentication 4 code information for WCBS in a timely manner, the LERO Director 5 vill, using his best judgement in light of emergency circum- 6 stances, request official permission to contact WCBS directly 7 and will ask WCBS to verify by return phone call,~in accordance 8 with the Nassau-Suffolk Operational Area EBS implementation pro- 9 cedures. The LERO Director, or the LERO Coordinator of Public 10 Information, will then activate the EBS system as detailed in 11 OPIP 3.3.d *nd 3.8.2, Section 5.1.4. LERO's procedures for 12 activating he Nassau-Suffolk Operational Area EBS and broad- 13 casting emergency information conform directly with the existing 14 implementation procedures in the Nassau-Suffolk Operational 15 Area EBS Plan. OPIP 3.8.2, Section 5.1. 4 (b) (1)-(5) . If there 16 is any problem or delay in obtaining authent:. cation with WCBS, 17 the LERO Director using his best judgement, in his discretion 18 will seek permiss[on to activate the Shoreham Local EBS network 19 which is a backup to th2 New York. State system based on WCBS. 20 OPIP 3.1.1, Attachment 10, Step D. 21 22 The Shoreham local emergency broadcast network consists of 10 23 radio stations on Long Island and Connecticut. LILCO's letters 24 of agreement with these stations are contained in Appendix B. 25 All of the Long Island radio stations participating in the 26 Shoreham local EBS network are also participants in the State 27 EBS for the Nassau-Suffolk Operational Area, including WGLI in 28 Babylon. The availability of this backup network as a last re- 29 sort ensures that in case of a problem or delay in activating 30

. the WCBS-based EBS, a coordinated and accurate emergency infor- 31 mation message can be broadcast to the public. 32 33 WPLR radio is an FM band station which broadcasts from Hamden, 34 Connecticut and provides coverage over the entire Shoreham EPZ. 35 WPLR has agreed to serve as the CPCS for the Shoreham local EBS 36 until the issuance.of a full power operating license, and, if 37 needed, to remain a member station thereafter. WPLR has a back- 38 up electrical generator to ensure full power transmission even 39 l during periods of power outages. LILCO maintains a dedicated 40 i telephone line from the EOC in Brentwood to TPIR's studio. . An 41 l EBS message can be provided to WPLR either directly via dedicated 42 line or from another radio station's broadenst signal. Upon 43 activation of WPLR's dual tone EBS signal, the other partici- 44 pating stations in Connecticut and Long Island will tune to WPLR 45 and rebroadcast an EBS message coming from the LERO EOC. 46 47 Because the Long Island radio stations that are part of the 48 Shoreham local emergency broadcast network are also part of the 49 they will switch their source signal to WCBS when 50 WCBS is network,ioning funct as the CPCS for the emergency. The Connec- 51 ticut stations will direct their Long Island listeners to tune 52 to WCBS for emergency information. 53 3.8-7 Rev. 10

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Sample EBS messages used by LERO and details of EBS activation 1 are contained in OPIP 3.8.2. 2 3

Press Conferences .

4 5

Press conferences will be conducted periodically in the Press 6 Conference Room of the ENC. Private and public agency /or organ- 7 ization representatives (i.e. American Red Cross, Suffolk 8 County, FEMA, NRC, State officials, etc. will be invited to 9 join LERO workers at the ENC to participa)te as a panel in all 10 press conferences to provide up-to-date information, respond 11 to any rumor received, and answer any questions the media may 12 have. This panel will also be invited to help disseminate any 13 emergency announcements including accident termination ("ALL 14 CLEAR") announcements. 15 3.8-8 Rev. 10 l

l I

HUNTox & WILLIAws  !

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....,........ ,. 8358 James P. Gleason, Chairman BY TELECOPIER Dr. Jerry R. Kline Mr. Frederick J. Shon Atomic Safety and Licensing Board East-West Towers 4350 East-West Highway Sethesda, Maryland 20814 Shoreham EBS Issues Gentlemen:

Yesterday, LILCO served Revision 10 to r.he Shoreham Offsite Emergency Plan on the Board and all activo parties to this pro-caeding by Federal Express. The contents of Revision 10 are synopsized in the covering letter and matrix secompanying it.

One aspect of Revision 10 relevant to the current proceed-ings is a modification of the Emergency Broadcast System to ac-count for the change in status of radio station WPLR, of which LILCO had notified the Board by letter dated May 16, 1988.

History has indicated that an agreement-based special ESS network is vulnerable to political opposition. Accordingly, Revision 10 shifts primary reliance for EBS coverage for the shoreham Emergency Planning Zone from an agreement-based system tailored for 8horeham to the official New York State EBS plan.

That plan designates the Nassau and Suffolk Counties as a dis-tinct EB8 operational area and establishes a 30-station Long Is-land network anchored on WCBS in New York City. In the event of a radiological emergency at Shoreham, LILCO would utilize the New York State plan to enlist the assistance of the Suffolk County Executive or, in the alternative, New York State, in activating this EBS. That cooperation would be presumed under the realism principle codified 10 CFR 5 50.47(c)(1).

As further alternate backup means of EBS activation, Revi-sion 10 provides for the following

1 HUNToN & WILLI Axs Atomic Safety and Licensing Board May 25, 1988 Page 2

1. direct activation of the official New York EBS upon in-formation directly from LERO, as a matter of WCBS's management discretion, as permitted by FCC regulations; i
2. direct activation of the Shoreham EBS through WPLR upon information directly from LERO, as a matter of WPLR's management discretion, as permitted by FCC regulations.

Details of these changes are set forth in the following pages of Revision 10:

Plan pages 3.8-6 through 3.8-8 Procedures: OPIP 3.1.1, Att. 10, pages 86, 86a OPIP 3.8.2 pages 1, la, 4, 4a.

LILco believes that these revisions adequately resolve all EBS issues. Since access to WPLR remains in the Shoreham offsite plan, the matter of its signal coverage may still be before this Board. Any other matters relating to the E31 construct described in Revision 10 would be for the Interveno'es to raise by.s timely contention (if one can be framed, which LILCO doubts), consistent with Commission regulations and the previous history of this mat-l ter, particularly the Commission's decision in CLI-87-05, 24 NRC l 884 (1987), this Board's Memorandum and Order (Ruling on Co.7 ten-tions Relating to the Emergency Broadcast System) (February 24, 1988) (unpublished), and the facts admitted in connection with

! LILCO's Second Renewed Motion for Summary Disposition of the "Legal Authority" Issues (Contentions 1-10) (March 20, 1987).

l Respectfully subpitted,

,s v , 'e Q Donald P. Irwin James N. Christman K. Dennis Sisk cc Edwin J. Reis, Esq.

William R. Cumming, Esq.

Lawrence C. Lanpher, Esq.

Richard J. Zahnleuter, Esq.

91/6176

E UNITED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:

)

)

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3 (Shoreham Nuclear Power Station, ) (Emergency Plan'ning]

Unit 1 ) (School Bus Driver :ssue)

)

)

)

e Location: Hauppauge, New York Pag -

-)p ;_3,)43)

Date: May 26, 1988 s u m as se ss m a ss e ss em e = = == = = = = =

= = se sa m m en e m m as s o m se s sa ss es se sm an m es u sm em a ss o m ss en e s

- . HERITAGE REPORTING CORPORATION

< oskistA ,wem 1224 L Street, N.W., Sr to det WanWagton D.C.2 45 (182) 628-4008

~= . __

20424 1

position I must state on behalf of my client and I 2

hope the Board appreciates that.

3 JUDGE GLEASON: Gentlemen, you are 4 excused. We appreciate your testimony very much.

5 MR. MILLER: May we take a break?

6 JUDGE GLEASON: We will take a 10 minute 7

break and then come back.

8 (Brief recess.)

9 JUDGE GLEASON: I think we will start 10 with the EBS issue first. I am not sure, Mr.

11 Christman, I have a full understanding of their 12 letter. It appears to be, in some respect, a motion 13 to dismiss an issue or motion at least to say we l 14 shouldn't proceed with the EBS issue. There is a 15 sentence that I really didn't understand. It is the 16 sentence that reads, "In the event of a radiological 17 emergency at Shoreham, LILCO would utilize the New -

18 York State's plan- " on the first page, second to 19 last paragraph-- "would utilize the New York State 20 plan to enlist the assistance of the Suffolk County 21 i

1 executive or in the alternative, New York State 22 activated the EBS." I don't understand that,in light 23 of where the emergency plan is today, that it calls 24 for some effort at direct contact with county 25 executive.

l l

l

? .

20425 1

MR. CHRISTMAN: Well, this is intended ll 2 to merely summarize the provisions of Rev 10, which I 3

think were attached to this, most likely.

4 JUDGE GLEASON: They weren't attached to 5 my copy. Some summary of them was put in the letter 6 itself.

7 I guess really I would like to 8

know--maybe the other parties would to--just wh.at 9 this lette'r represents.

10 MR. CHRISTMAN: The letter repres5nts 11 the following. The current pl6c is-Rev 10, which I 12 think has been served on people by now. In light of '

13 the Rev 10 provision, which makes the primary EBS the 14 ordinary State one, WCBS as the what is called 15 CPSC-1, I believe--in light of that change, the 16 coverage question involving WPLR is, I suppose, a 17 less important issue.

WPLR is still to be a member 18 station and triggers the tone alerts. Therefore, the 19 intervenors may still wish to go forward with that 20 issue of that coverage. But it now involves the ,

21 coverage of what is essentially a backup or 22 supplemental part of the plan.

23 , I suppose what we are saying is that we l 24 anticipate the intervenors will want to go ahead with 25 the coverage question of WPLR, which is still a part

r. , . . -e, - -

. - . , ,. ,,--~y -w.- -m., . .

l.

20426 1

~ of the plan, though as a supplemental part, and we 2 are prepared to go forward with that. We can 3

schedule those hearings if the intervenors wish. As 4

to the rest of the plan, which involves WCBS, there 5 is no outstanding contention.

6 JUDGE GLEASON: Mr. Miller?

7 MR. MILLER: Judge Gleason, it is 8

difficult for me to respond because at this time all 9 I have seen is this two-page letter. I have not seen 10 Revision 10, which I have think has been served in 11 our office in Washington, D.C. but, of course, we 12 have been here. I need to see Revision 10 and' see 13 what Revision 10 says about the EBS. I think at a 14 minimum--I don't quite understand the proposal even 15 still, even after Mr. Christman's comments. Dut I 16 would assume that at a minimum if we were to proceed 17 in some fashion with EBS litigation, given these 18 changes that have occurred, we would have to, at a 19 minimum, begin with some discovery so that we, the 20 county at least, can have a better understanding as 21 to what is going on here, because I am confused.

22 MR. CHRISTMAN: The Board may wish to 23 order discovery. The discove,ry wouldn't go to WPLR.

24 I can tell you now, there is not going to be much to

' 25 discover. It is not as though LILCO has, as far as I I

e

20427 1 know, very many documents about this issue. We are i 2 using new as a primary means of notifying the public 3 what is the standard State EBS, the same one that was 4

described in our second renewed motion for summary 5 disposition, I might add, and some facts about which 6 were admitted by the intervenors.

7 MR. MILLER: For example, Judge Gleason, 8

Mr. Christman referenced the fact WPLR would remain 9

the station that would activate tone alert ra'dios 10 within the EPZ. He says nothing about how LILCO 11 would attempt to activate broadcast receivers at 12 other radio stations within LILCO's proposed EBS 13 network. Is that going to be WPLR? Is it some other 14 radio station? Whatever station that is, is it 15 capable of doing that sort of activation? There are 16 a lot of questions I think that need to be addressed.

17 Frankly, I am not in a position right now to 18 articulate them all for the Board.

19 MR. CHRISTMAN: I had no intention of 20 summarizing REV 10. I think it would be 21 inappropriate and I might get it wrong. Remember, we l 22 had, in addition to the State EBS we now rely on, we l

23 had the two separate Shoreham-specific EBS, the first

\ .

l 24 of which had WALK as its flagship. All of the l

25 stations in the original EBS using WALK as the

+e ,a mm % -*e = w .

20428 1 flagship, which was litigated and resolved, are tied 2 into the State EBS using WCBS as the flagship 3 station.

4 JUDGE GLEASON: Are they all a part of 5 the State system?

6 MR. CHRISTMAN: The WALK--all of the

'7 original stations--

8 JUDGE GLEASON: All of the other 9 stations are--

10 MR. CHRISTMAN: Are part of the State 11 system. And I believe that is probably one of the 12 admitted facts that was attached to our second' l 13 renewed motion,'as a matter of fact. We would have 14 to check, 15 JUDGE GLEASON: Mr. Bachmann, do you 16 have something to add to this?

17 MR. BACHMANN: I am also a little 18 confused about a statement in this letter. There j

19 seems to be some sort of an implication here that if 20 there is to be litigation on EBS it would come under 21 the heading of best efforts or realism argument. I 22 notice at the end of the cut-off paragraph they talk 1

! 23 about cooperation being presumed, et cetera. I am a 24 little bit confused as to exactly what is going on.

25 Of course, I, too, have not seen Rev 10.

l l

L . .

20429 1 MR. CHRISTMAN: I don't think it is part i

2 of the realism litigation, though that is not an 3

unreasonable thing for Mr. Bachmann to say. I do 1

think it is possible the new rule may have a bearing 5 on this issue just as it does on the legal authority 6 contentions.

7 JUDGE GLEASON: Why don't we resolve, at 8 least currently, and provide an opportunity for 9 parties to have discovery with respect to whatever it 10 is you are proposing. We ought to keep that within a 11 relative short period of time. Ten days, let's say.

12 Then at that time, within a period of, let's say, l 13 five days after that, the Board to receive a motion 14 or paper from the parties as to how they want to 15 proceed or if they want to proceed with respect to 16 the issue and the Board will resolve it.

17 Is that satisfactory?

18 MR. MILLER: Judge Gleason, I am 19 responding a little bit in a vacuum because I have 20' not seen Revision 10.

21 JUDGE GLEASON: None of us has.

22 MR. MILLER: All I ask, I think the 23 first step from at least .the County's perspective is 24 to get back to Washington and look at Revision 10 and 25 then, assuming Revision 10 can be reviewed quickly 4,

20430 1 enough, I suppose that your proposal, your schedule 2 could be adhered to. But I would want the caveat 3 that if we get to Revision 10 and it is a fairly 4 broad-ranging revision to the plan, that we may need 5 to come back to the Board and say it is going to take 6 more than ten days for discovery and more than five 7 days after that to put in the paper to the Board, i JUDGE GLEASON: Mr. Christman, the only 9 references in Revision 10 are these two paragraphs on 10 page two of the letter?

11 MR. CHRISTMAN: Are you saying are the 12 only portions of Rev 10 that relate to the E B S'?

13 JUDGE GLEASON: That relate to the EBS 14 issue. You don't know either?

15 MR. CHRISTMAN: I think so, but, you 16 know--

17 JUDGE GLEASON: If they are more

~

18 extensive, if you just telephone the parties and tell 19 them which pages are involved, that will expedite 20 things.

I 21 MR. CHRISTMAN: Every time you do a revision, sometimes if you change a . umber or name, l 22 23 it ripples through and you have 50 pages of changes 24 but it is all a little, bitty minor thing. This is.

25 the substance, this is it, what we described here.

20431 We will certainly do what 1

you su99est, review it. If 2 there is anything they need to know about, they will 3 tell them by phone.

4 JUDGE GLEASON: If there is a problen 5 wi' thin the ten days, we would like to be notitied, 6 We hope to keep it in the ten days.

7 MR. BACHMANN: I am considering the fact 8 that we have got hearings next week, three of those

\

Monday is a I 9 days we will be in the courtroom.

10 holiday. 3 11 JUDGE GLEASON: Just bring--ten days is 4

12 a long period of time. You will be here three days

.i 13 next week. '

i I

14 Mr. Zahnleuter? Were you going to make 15 the same objection?

16 MR. ZAHNLEUTER: I had the same concern.

17 This ten days will occur in the midst of hearings and 18 the exercise and there is an awful lot to do.

19 JUDGE GLEASON: I guess I an assuming 20 that the discovery is not really going to be very 21 lengthy because there' isn't--

22 MR. CHRISTMAN: Judge Gleason, I think I 23 can virtually guarantee that LILCO does not have more 24 documents.

4 25 JUDGE GLEASON: If you need more time,

-~.m.--n enen meancrotomTon/kovword index

', . f f

20432 1 move the Board to grant more time.

I 2 MR. CHRISTMAN: If we, contrary to my

3. firm expectations, produce a large number of 4 documents, of course, there may be good cause but we 5 can resolve that when we come to it.

6 MR. ZAHNLEUTER: It is more than 7 documents. It may entail a deposition which would 8 require an open day in the schedule and that may not 9 occur within ten days. I am not sure because -

10 JUDGE GLEASON: If you have problems, 11 Mr. Zahnleuter, just let us know.

12 The Board has reviewed the filings of 13 the parties concerning the realism issues and the 14 Board's orders of February 29th and April 8th of this 15 year. They include--I will list them--LILCO's prima 16 facie case dated April 1st, the intervenors' 17 objections to the Board's orders and its offer of 18 testimony of Mr. Halpin and Dr. Axelrod dated April 19 13th, LILCO's response to intervenors' objections 20 dated April 22nd, the staff's response to 21 intervenors' objections dated April 28th, the 22 intervenors' response to LILCO's April 22nd response 23 dated May the 2nd, LILCO's supplement to its response 24 of April 22nd, dated May 2nd, the intervenors' reply 25 to the staff's April 28th response dated May 6th, the

7.

20433 1 staff's response to LILCO's supplemental response 2

dated May 13th, and the intervenors' response to 3

LILCO's supplement dated May 13th.

4 In order to maintain some semblance of a 5

schedule, a regular semblance of a schedule in the 6

realism contentions, we are announcing at this time 7

our decision with respect to those filings. That 8

decision is as follows:

9 First, the Board is not dismissing the 10 realism contentions as requested by LILCO and the 11 staff despite the intervenors' failure to produce 12 evidence of the State and Suffolk County's 13 l

prospective responses in the event of a radiological 14 accident at Shoreham. The reason for this ruling is 15 that the interface best efforts responses of 16 Attachment 10 to LILCO's emergency plan have not 17 received an evidentiary foundation, nor have the 18 questions raised previously with respect to it by the 19 Licensing Board and the Commission. Those questions 20 raised by the Lic,ensing Board and the Commission.

21 Two, the Board will neither accept nor 22 reject at the present time intervenors' proffered 23 testimony, Mr. Halpin and Dr. Axelrod, because we 24 consider it premature for any Board action at this 25 time. Such testimony, as well as LILCO's testimony

I EMANUELSON AND CHURCH  !

ATTORNEYS AND COUNSELLORS PLEASE REPLY to maassar6 swAwwsbeow se 20s CHURCM STREET \

NEW HAVaN, CONNEc7ICWT ossio g,, ,,yne, g,ee p i wassaast as sa swwec" new waysw. comweetiewt eesie '

genesar w cmwacw Ja vsta m ews:tatsi ses.eirt snic : s wa =ws6so w June 6, 1988 tie snween senest usw navtw. see setswt easie '

esse m ews.ises ses.ese.

Donald P. Irvin. Esquire Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 Dear Dont I am in receipt of a Memorandum from Manuel Rodrigues relative to a verbal agreement which he reached with you last week with regard to a "June 7-9 exercise" for Shoreham. Pursuant to that agreement, General Communicorp. Inc. (WPLR) as agreed with Long Island Lighting Company (LILCO) as follows:

1. WPLR will not participate in the broadesat over the 1 sit of any signal or test this week or at any time in the future.-

l l 2. A representative from LILCO and the Pederal Energy Management '

Agency (TEMA) will be given access to the studios of WFt1 tomorrow, June 7, 1988, i

3. The representatives of LILCO and TEMA v'.L1 be permitted to

) inspect the so,uipment purchased by LILCO pursuant to the i

July 27, 1987, agreement between WPLR and LILCO.

4 The purpose of this inspection will be to determinat (a) That the designated phone line for Shoreham does operate.

(b) That a message over the phone can be recorded.

(c) That such message could have been broadcast by WPLR, although as noted above, it will not be broadcast. '

(d) That the WPLR operator in charge is f amiliar with the l use of this system.

1

5. Pursuant to the July 27, 1987 agreement, notice was given to i LILCO through you on June 3,1988, that as the result of its sale of the l Shoreham property, the agreenent between WPLR and LILCO vil; terminate l ninety (90) days from June 3, 1988. WPLR shall be under no obligstion to pay LILC0 any amount for the cost of equipment installed pursuant to such agreement and LILC0 will release and discharge WPLR from any and all claims, der. ands, suits and expenses and shall hold WPLR free and 4

4 e

s # ,

f = 1*

EM'ANUELSON ANo CHURCH Mr. Irwin June 6, 1988 Page Two harmless from any claims, demands, suits and expenses resulting from the July 27, 1987 agreement and/or its participation with Shoreham, I would appreciate your signing a copy of this letter indicating LILCO's agreement or signifying such approval on a separate response to this letter.

With base regards I as Sincar1,yyo@s, tb (

llerbdrd L. Emanualson, Jr.

HLE/ gal ec: Manuel V. Rodrigues Peter R. Starr-

  • Douglas Crocker l

l

WALKFik1R5 AM1370 A an S Beck Presocent and General Manager August 8,'1986 Mr. Ira Freilicher Vice President Long Island Lighting Ccepany 175 East Old Country Road Hicksville, New York 11801

Dear Mr. Freilicher:

In acccrdance with the ruling of the Supreme Court of the State of New York (Cuomo, Suffolk, Southa;rpton vs.

LILOO./ Judge Geiler) and on the advice of counsel, we find it necessary at this tire to withdraw from participation in the Shorehar. Ezergency Response Plan.

5iP;erely4 ,

,.fr _'!._-]m Al'an S. Beck

.: resident and General Manager A33:ds ISLAND BROADCASTING COMPANY, INC.

t16t ?S$200

  • P O Bos 23C Pet:M:> pet. Non Yort 117.9

EMANUELSON AND CHURCH ATToRNEYB AND COUNsELL0RB PLEA 88 RapLY 70 aos CNURCH sTMEET "UneUnst w sis"a enw c"es NEW HAVEN. CONNECYlCVf oesto n g, ,'((,,'", ,,,',

oassar w emuasse.n takeawows: ssese seagir, sosc e swanws6so" June 6, 1933 are enveen steser

=ew aavem. e setiev, e eie ense . e. i.ee, ses.es Donald P. Irwin, Esquire Hunton & Williams 707 !ast Main Street P.O. Box 1535 Richmond, Virginia 23212 Dear Dont I am in receipt of a Memorandum from Manuel Rodrigues relative to a verbat agreement which he reached with you last week with regard to a "June 7-9 exercise" for Shoreham. Pursuant to that agreement, General Communicorp Inc. (VPLR) as agreed with Long Island Lighting Company (LILCO) as follows: '

1. WPLR vill not participate in the broadeset over the 1str of any signal or test this week or at any time in the futura.
2. A representative from LILCO and the Federal Energy Management Agency (TD8.A) vill be given access to the studios of W7tR tomorrow, June 7, 1988.
3. The representatives of LILC0 and TEMA v;11 be permitted to inspect the equipment purchased by LILCO pursuant to the July 27, 1987, agreement between WPLR and LILCO.

4 The purpose of this inspection vill be to determinst (a) That the designated phone line for shoreham does operate.

(b) That a message over the phone can be recorded.

(c) That such message could have been broadcast by WPLR, although as noted above, it will not be broadcast.

(d) That the WPLR operator in charge is familiar with the use of this system.

5. Pursuant to the July 27, 1987 agreement, notice was given to LILCO through you on June 3, 1986, that'as the result of its sale of the Shoreham property, the agreenent between WPtR and LILCO will terlainate ninety (90) days from June 3, 1988. WPLR shall be under no obligation to pay LILC0 any amount for the cost of equipment installed pursuant to such a~greement and LILC0 vill release and discharge WPLR from any and all claims, demands. suite and expenses and shall hold WPLR free and O

a

EMANUELSON ANo CHURCH Mr. Irwin  !

June 6, 1988 Page Two l

l harmless from any claims, demands, suita and expenses resulting from the  !

July 27, 1987 agreement and/or its participation with Shoreham.

l I would appreciate your signing a copy of this letter indicating LILCO's agreement or signifying such approval on a separate response to this letter.

With best regards I as Since 1,yyetps,

& ts \

!!arbdrd L. Emanualson, Jr.

HLE/ gal ec: Manuel V. Rodrigues

. Peter H. Starr.

Douglas Crocker

  • 4 l

l l

l l

Contention 20 LILCO intends that EBS messages will be broadcast simultaneously by WALK AM and FM. (Plan at 3.3 6.) However, WALK AM does not operate at night. Therefore, those persons without FM radios (especially people in cars) will be unable to receive adequate information in the event a radiological accident occurs at night, contrary to the require-ments of 10 C.F.R. 5 50.47(b)($).

9

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  • Qo KIRKPATRICK & LOCKHART Sot /rH LOBBY 7TH Floor ExcH Asct PLACE 1800 M STREET. N.T.

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TASHLNGToN. D.C. 20016 5891 m :::#xe to:S 810CKILL A\'t.NL1

\tLAML FL 11111 TTLEPHONI 002) 77&e000 iMi 174 8112 E +402M C N L1 15:0 OLI\]UILDING TILICOPtEA C0:1 ??&9100 P!TT58L1tCH, PA 19::: U!#

114TIAS D@ICT DLAL NLMBEA i4iti nuW June 10, 1988 ,

FEDERAL EXPRESS Donald P. Irwin, Esq.

Dennis Sisk, Esq.

Hunton & Williams P.O. Box 15's 5 707 E. Main Street Richmond, Virginia 23212

Dear Don and Dennis:

Chris McMurray has related to me a conversation he had with you this afternoon concerning EBS discovery. Since Chris had to leave the office, I am responding.

As Larry Lanpher mentioned to Dennis this morning, it is our understanding of the Board's discovery order on EBS matters that that discovery was opened by the Board on May 26 so that the parties could discover what LILCO's Revision 10 proposal is all about. Thus, the Board stated (at page 20429):

Why don't we resolve, at least currently. and provide an opportunity for parties to have

! discovery with respect to whatever it is you are proposing. We ought to keep that within a relative (ly) short period of time. Ten days, let's say. Then at that time, within a period of, let's say, five days after that, the Board (is) to receive a motion or paper from the parties as to how they want to proceed or if they want to proceed with respect to the issue and the Board will resolve it.

Thus, the discovery we are proposing to take concerning Revision 10 (i.e. , the Crocker deposition) is what is contem-plated by the Board's statements on May 26. Subsequently, after

KIRKPATRICK & LOCKHART-JDonald P. Irwin, Esq.

Dennis Sisk, Esq.

June 10, 1988 Page 2 the parties have filed their status 1 reports on June ;20, more discovery may be appropriate, depending.upon the posture of the issue and any decision reached thereon by the Board. In advance of that, however,.the kinds of discovery LILCO is proposing (as I understand it, depositions of Messrs. Randolph, Bennett, Bilello, and Jones of the County and Mr. Silverman of the State)'is-not contemplated by the Board, particularly since these persons obviously have had no role in LILCO's Revision 10 or its local EBS.

As Larry hinted at the start of the conference call today, and as he mentioned to Dennis in a telephone call prior to the conference call, we thought this EBS matter would likely come up during the conference call. For whatever reason, it did not. In the present' circumstances, however, it would be difficult to proceed with more EBS depositions next week in any event.

As you know, Mike Miller and I have shared EBS responsi-bilities. Mike Miller can consult on the telephone, but as of now, I do not know when he will be back in the office. He is certainly unavailable for any travel such as would be entailed to -

prepare witnesses for depositions, etc. It is likely, therefore, that if further EBS discovery is required, other attorneys from the D.C. office will have to get up to speed on the EBS matter.

That will necessarily take some amount of preparation, making it a real hardship to even contemplate extensive EBS depositions next week.

In addition, it is uncl' ear why LILCO desires EBS depositions of the County personnel listed above. As I understand LILCO's Revision 10, LILCO is proposing to rely upon the State EBS system and, as a backup, to use its WGLI/WPLR "local EBS." I do not understand what potentially relevant data might be available~from County personnel regarding Revision 10.

Perhaps as a first step toward attempting to resolve this, you might attempt to explain why the County personnel are pertinent on Revision 10 EBS issues. They were originally noticed on both EBS and "best efforts" matters. Given the

- Board's ruling today on the "best efforts" matters, it seems likely that that proceeding will come to a halt. Thus, these.

deponents would be presented solely for purposes of testimony concerning LILCO's Revision 10 EBS proposal. Again, I do not see how they could have relevant data concerning that proposal and thus cannot see why they should be presented for deposition, even Lif the Board's May 26 oral ruling were construed to allow discovery by LILCO.

KIRKPATRICK & LOCKHART Donald P. .Irwin, Esq.

Dennis Sisk, Esq.

June 10, 1988 Page 3 Please consider these matters and we can discuss them at the Crocker deposition.

Sincerely yours, Michael J. Missal cc: Christopher M. McMurray I

I e

HUNTON Sc WILLIAMS 7o7 East MMN STAT t P. o. Box 1535 ,

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....l'.7.'.'.".$'..... June 13, 1988 "'"ayp;5,,,a ,

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  • 7 2 5 0 By Telecopy_and_By Hand Michael J. Missal, Esq. Richard J. Zahnleuter, Esq.

Kirkpatrick & Lockhart Assistant to Special Counsel to South Lobby - 9th Floor the Governor 1800 M Street, N.h. State Capitol Washington, D.C. 20036-5891 Albany, New York 12224 EBS Discovery Dear Mike and Rick We received Mike Missal's June 10, 1988 letter regarding EBS discovery over the weekend. As we stated last week and I confirmed in my letter to Messrs. Lanpher and tahnleuter on June 10, we disagree with your interpretation of the Board's order reopening EBS discovery. The Board's May 26, 1988 bench ruling gives no indication that the reopened EBS discovery period was to be a one-way street, as counsel for Suffolk County now maintains:

JUDGE GLEASON: Why don't we resolve, at least currently, and provide an opportunity for parties to have discovery with respect -

to whatever it is you are proposing.

Tr. 20,429 (emphasis added).

Further, I stated at the hearing on June 2,1988, that LILC0 has served -

[aldditional noti'ces of deposition which relate to the realism proceeding and some

.of which also overlap and relate to EBS.

There is one identified individual and one 1

8

- ,__ , , - _ , . - ,n , , , , _ , _ , _ _ - . . _ _ _ , . _ - . , , . , , , _ , , , , , , , , . , . _ _ _ _ , _ _ - - - . . ~ - .

HUNTON & WILLI AM S Michael J. Missal, Esq.

Richard J. Zahnicuter, Esq.

June 13, 1988 Page 2 other individual ider.ctf aed by position within the county government who should be knowledgeable about the County EBS and warning systems. We have identified one additional person from the state who should be knowledgeable about those as well.

Those depositions, while we don't have any agreement as to when they will be conducted, ha-ve been noticed for the week of June 6th, during the exercise, so we would hope to,be able to complete some of our discovery or the discovery we need within the June 13th time frame.

T r '. 20,667. The State and County persons noticed by LILCO may have knowledge of the technical adequacy of the state Ess.

Suffolk County and the State of New York failed to produce any of the deponents whom LILCO noticed on EBS issues for the week of June 6-10.*/ Instead, in a letter from Mr. Lanpher to me dated June 3, Suffolk County proffered available dates for Richard Jones, County Radiological Division, and John Bilello, Deputy Director, Emergency Preparedness Divison, of June 15, and June 16, respectively. In response to LILCO's notice of deposition of G. Berkeley Bennett, Mr. Lanpher stated that Mr. Bennett works with Messrs. Jones and Bile 11o at the Emergency Preparedness Division and represented that "(a) deposition of Mr. Bennett would be repetitive and redundant given the Jones and Bilello depositions. They should be able to respond to'all questions." Mr. Lanpher further noted that "I do not yet have any date for Mr. Randolph. I will contact you about that as soon as possible." Then, in a letter dated June 6, 1988 from Richard Zahnleuter to Donald P. Irwin, Mr. Zahnleuter indicated that Mr. Silverman could be made available on June 17 with the REPG panel, but not separately as LILCO had requested.

  • / John Randolph, June 7; G. Berkeley Bennett, June 7; and Marvin Silverman, June 9 4

0 4

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HTSNToy & WILLIAus Michael J. Missal, Esq.

Richard J. Zahnleuter, Esq.

June 13, 1988 Page 3 It was not until my te4ephone conversation with Mr. Lanpher on the afternoon of June 9 that the County first suggested that the Board's May 26 ord.er did not contemplate discovery by LILCo. Your objection, therefore, to producing the deponents noticed by LILCO is raised belatedly. Instead, Mr. Missal's letter of June 10 makes clear that the County's position now is that none of the deponents noticed by LILCO or proffered by the County on EBS issues will be produced.j' As we stated in our letter to the Board dated June 9, the State's and the County's failure to produce deponents has precluded LILCO from completing EBS discovery, as ordered, by June 13.

LILCO should not have to go to the Board for an order every time it seeks discover'. / Accordingly, we will 7.ddress this issus in our briefing paper to be filed June 20, 1988. If you recor, sider your position regarding producing the individvals LILCO has noticed for deposition, please let us know. 'fe are prepared to proceed this week, but we are not prepared to further defer the filing of papers to the Board as ordered on Jitne 20.

Sincerely yours, R. d=nA &#_ /

K. Dennis Sisk 201/374 cc Richard'C. Bachmann, Esq.

William.R. Cumming, Esq.

l l

l '

  • / I have not yet succeeded in reaching Mr. tahnleuter to 3etermine whether Mr. Silverman will be produced on June 17; the State declined to produce him in time for a deposition prior to the June 13 discovery cutoff.

9

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TRAXSCRPT

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OF '?.10CEEDXGS UNITED STATES OF A!! ERICA l 1

NUCLEAR REGULATORY CO!1 MISSION j BEFORE THE ATO!!IC SAFETY AND LICENSING BOARD

_ _ _ - _ _ __ _ _ _ _ _ _ _ _ _ _ _x 1

IN THE tiATTER OF  :

DOCKET NO. 50-322-OL-3 LONG ISLAND LIGHTING CO!!PANY
(Emergency Planning)

(SHOREHA!1 NUCLEAR POWER STATION,  :

UNIT 1)  : (EBS Issue)

____ _ _ ____ __ _____ _ _x P

k DEPOSITION OF DOUGLAS M. CROCKER Hauppauge, New York Monday, June 13, 1988 Acn A 0ERAL REPORTERS, INC.

Stenotypelh7erters 444 North Capitol Street Washington, D.C. 20001 (202) 347-3700 Nationwide Coverage 800-336 6646

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I I c1 01 21

/suew 1 Q When you say you would "speculate that we probably 2 asked for it," what do you base that on?

l 3 A Just general common sense that if you are trying 4 to work something out with somebody, you might formalize it 5 on paper.

6 Q What is, in as much detail as you can provide, 7 LILCO's current EBS system?

8 A It's as described in the Rev 10 to the Plan. We 9 would rely on CBS as the lead statiom which in turn would 10 activate the host of st,ations that are on Long Island and 11 are secondary stations to CBS.

12 Q Does LILCO's current EBS system lead by WCBS i

13 contemplate any participation by suffolk County personnel?

14 A The Plan envisions that when Suffolk County is 15 asked to either activate or give LERO authority to activate A6 the WCBS system that it would. That's Suffolk County's role 17 in that process.

. 18 Q Suffolk County's role is to activate the network; 19 is that correct? -

20 A Or give us the necessary information to do it.

i 21 l Q And, what personnel will be asked to activate the 22 system?

I mean, Suffolk County personnel.

l 1

ace-FEDER AL REPORTERS. INC.

.i k v. . . . . . . .

l 1 01 22 suev 1 A It would be the Suffolk County Executive or his j 2 designee, whoever is the Duty Officer at the time of the i

t 3 emergency.

I 4 Q Aside from the Suffolk County Executive or, ar, yc 5 describe, ' his Duty Of ficer, does LILCO's WCBS EBS system 6 contemplate any participation by Suffelk County personnel?

7 A Well, to the extent that if Suffolk County decide

' 8 to activate it and exchange information with WCBS, then the 9 may draw on their own staff to do more. I can't speak to io that.

11 Q Is that part of the LILCO Plan?

12 A The LILCO Plan does not describe how Suffolk 13 County's internal staff operations would actually-accomplis 14 that. They have standard procedures for doing it.

15 But, those are not incorporated in our Plan.

16 Q The only Suffolk County personnel that is include 17 in the LILCO Plan is the Suffolk County Executive or his 18 designated officer; is that correct?

19 A Well, there is a lot of Suffolk County people 20 involved or referred to in the LERO Plan. In the EBS, the 21 intent is to go through the County Executive or whoever is 22 in charge at the time of the emergency and whatever staff h

pl 01 23

/suew 1 may select. -

2 Q Okay. When you say "whatever staff he may 3 select," in reference to what?

4 A in the LERO Plan, the Director i,s in charge but he 5 has a staff that helps him prepare EBS messages, call the 6 radio stations and do things of that sort. I assume the

7 County government has something similar to that.

i 8 The County Executive may elect to do this all 9 himself. But, I suspect he would have support staff helping 10 him.

11 Q That's not inc]u- 1 in the LILCO Plan; is that 12 correct?

13 A Not explicitly as I laid it out. We count on 14 contacting the Executive or the Duty Officer. How he 15 handles it after that is up to him.

16 Q So, just so the record is clear, the only Suffolk 17 County personnel that is referred to by the EBS portion of 18 the LILCO Plan is the Suffolk County Executive or his Duty l

t 19 Officer?

l 20 A If you have the interface procedure there, we can 21 go through it.

2 Q Sure. This is Revision 10.

ACE-FEDERAL REPORTERS, INC.

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24 D1 01 4i (suev 1 A All right. The language in the procedure says the 2 Suffolk County Executive or his designee. But, designee is, 3 in my mind, synonymous with Duty officer.

4 Q Could you reference the page?

5 A This is OPIP 3.1.1, Page 85 of 90 of Attachment 6 10.

I 7 Q Is that it?

8 A Yeah, that's it.

9 Q How would the -- and I believe you've heard it

[

I 10 testified to this, but just so we can get a new line of 11 questioning going, how would the WCBS EBS network be l

12 activate'd?

13 A on receiving authorization from the Suffolk County 14 Executive or his concurrence that the network should be 15 activated, then the appropriate contacts are made with the 16 radio station. The message and the authentication are 17 provided to the station and they will broadcast it using 18 their normal EBS procedures.

19 Does the Plan -- does the LILCO Plan envision any Q

20 other options if the Suffolk County Executive or'his 21 designee does not give that authorization?

I 2

A Yeah. In the unlikely event, that in my mind is k ACE-FEDER AL REPORTERS. lNC.

%e a TM.\~SCIFT O:? :?:lOCsDINGS UNITED STATES OF A1 ERICA NUCLEAR REGULATORY CO!D1ISSION BEFORE THE ATO!!IC SAFETY AND LICENSING BOARD i

- - -- - - - - - - - - - - - - - - -x IN THE liATTER OF

DOCKET NO. 50-322-OL-3 LONG ISLAND LIGHTING CO!!PANY
(Emergency Planning)

(SHOREHA!! NUCLEAR POWER STATION,  ;

UNIT 1)  : (EBS Issue)

- - - - - - -------------x DEPOSITION OF DOUGLAS M. CROCKER Hauppauge, New York Monday, June 13, 1988 ACE-FEDERAL REPORTERS, INC.

$lttl0tyt k'}Dittr$

444 North Capitol Street Washington. D.C. 20001 (202) 347-3700 Nationwide Coverage .

800 336-6646

l

01 j 80 cew li unnecessary change.

2 If circumstances change later, we might consider 3' using WGLI.

,i 4 Q But, you don't know if WPLR is in the system?

5 They haven't agreed to be in the system based on the May 9th I .

6: letter; is that correct?

7! A They, as indicated in the May 9th letter, are  !

i 8; still willing to serve until we get a license. After that, ,

l 9' they may continue to serve as a secondary. l 10 Depending on the course of what happens with 11

~

WCBS., we may not need another primary station. It's just -- l 12 the decision hasn't been made what to do with WGLI yet. We 13 are waiting for events to unfold.

14 Q But, it's your testimony that WPLR may or may not i

15 participate in the system; is that correct, once a full i

16 power license is --

17 A Yeah. We have no contractual agreement with them l

l 18 past full power licensing.

l 19 It's my understanding they may have some role, l 20 but that's still evolving and still being negotiated, l

l l 21 Q You have said that WGLI may be used as a lead 22 station depending on circumstances. What are you waiting t

l l

ACE-FEDERAL REPORTERS INC.

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~

L. .. . ~ SCRIPT O:? ZROCE3DL ~GS .

UNITED STATES OF A!! ERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATO!!IC SAFETY AND LICENSING BOARD

__ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x IN THE MATTER OF  :

DOCKET NO. 50-322-OL-3 LONG ISLAND LIGHTING CO!!PANY  :
(Emergency Planning)

(SHOREHAM NUCLEAR POWER STATION,  :

UNIT 1)  : (EBS Issue)

. . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ -x l

DEPOSITION OF DOUGLAS M. CROCKER P

o Hauppauge, New York Monday, June 13, 1988 ACE-FEDERAL REPORTERS, INC.

Stentotyp' &qviters 444 North Capitol Street Washington, D.C. 20001 (202)347-3700 Nationwide Coverage 800 336 6646 m - -*s- -

--e-,v- ,- --r,- .,,._,,n,,,_,.,,_,,,,____ _ _,_______,___ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ____

o "

>1 01 19 rsuew 1 A I believe they were to explore CBS's participation 2 in an EBS network dealing with Shoreham.

3 Q What were the results of these conversations?

4 A My sense is that they were generally in the 5 af firmative, that they, you know, would support our ef fort.

6 But, there is no formal agreement.

7 Q What is that sense based on?

I 8 A Conversations with my superiors who relayed the 9 word down.

10 Q But, there is no formal agreement for CBS to 11 participate in the EBS?

12 A Not to my knowledga.

13 Q Is there any documentation concerning CBS's 14 participation in the EBS?

15 A There is the Plan and the Procedures, things of 16 that sort. Is that what you are asking me?

17 Q Other than the Plan and Procedures?

18 A 1m not , ware of anything else.

19 Q I think your testimony is that your sense is that 20 CBS was generally favorable towards participating; is that 21 correct?

22 A Thht's my understanding.

ACE-FEDER AL REPORTERS, INC.

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