ML20052C094
| ML20052C094 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/30/1982 |
| From: | Rawson R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8205040357 | |
| Download: ML20052C094 (14) | |
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2 STAFF 4/30/82 UNITED STATES OF AMERICA p
NUCLEAR REGULATORY COMMISSION g
AECgmy O
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 2
M4P3
-3 In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322 m
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(Shoreham Nuclear Power Station,
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Unit 1)
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NRC STAFF MOTION TO STRIKE PORTIONS OF INTERVENORS' PREFILED TESTIMONY ON CONTENTION 7B I.
INTRODUCTION The NRC Staff moves, pursuant to 10 C.F.R. 5 2.730, to strike portions ofIntervenors'prefiledtestimonyonContention78.1/ Those portions of the "Propos.ed Direct Testimony of Marc W. Goldsmith, Susan J.
Harwood, Ri. chard B. Hubbard and Gregory C. Minor on Behalf of Suffolk County and the Shoreham Opponents. Coalition," dated April 13, 1982, which the Staff seeks to have stricken and not introduced in evidence in this proceeding are listed by page and line in the Appendix attached hereto.
The Staff submits that those portions of the prefiled testimony cited.in the attached Appendix are irrelevant and not proper testimony in that:
1/
they address matters that are beyond the scope of Contention 7B as admitted by the Licensing Board in its Memorandum and Order dated March 15, 1982; or 2.
they constitute legal argument and conclusions rather than relevant, material and reliable factual evidence or expert testimony; or 1/
As explained in Appendix A to 10 C.F.R. Part 2 at V.(d)(7), a motion to strike is an aporopriate procedural vehicle for objecting to the admission into. evidence of irrelevant matter in prepared test,imony.
DESIGNATED ORIGINA Certified By b N O
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they are not relevant to any issue which is admitted for litigation in this proceeding.
These grounds for the Staff's motion are discussed separately below.
II. ARGUMENT A.
The Prefiled Testimony As Beyond The Scope of Contention 7B In.its Memorandum and Order..., dated Marcl '15,1982, the Licensing 3
Board admitted its own reformulation of three pairs of contentions submitted for litigation by Intervenors Suffolk County and the Shoreham Opponents Coalition. This reformulated contention was designated Contention 7B. Memorandum and Order, dated March 15, 1982, at 12-13.
An important limitation was imposed by the Licensing Board on Intervenors' evidence in support of this contention.
While the Board found there to be " sufficient basis to permit inquiries into LILC0's and the Staff's methodology of safety systems analysis, there is not at this time the basis for' commencing, on the record of this proceeding, a system by system analysis or physical irspection..."
Id. at 12.
Accordingly., the Board directed that any examination of the application of the Staff's and LILC0's methodology to particular systems be limited to discussion of "a maximum of three examples of plant design which in their view illustrate the inadequacy of the methodology as alleged in the restated contention."
Id. at 13.
Intervenors'prefiledtestimonyonContention7Bb1Ithelyignores
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the Board's limitation and discusses: literally dozens of examples of what they believe are inadequacies in the methodology used by the Staff and LILC0 in reviewing and classifying Shoreham's structures,
4 -4 systems and components.
A partial listing of the systems cited by Intervenors includes the following:
main feedwater system (p. 21) main turbine (p. 21) main steam isolation valve leakage control system (p. 27) reactor water cleanup system (p. 28) turbine bypass system (pp. 35, 39) feedwater control system (pp. 36, 40) level 8 trip (pp. 39-40, 56) rod block monitor (pp. 39-40)
RCIC (pp. 39-40) automatic depressurization system (p. 41) control rod drive system (p.41) water level indication system (pp. 42-48) standby liquid control system (pp. 48-51)
Beyond this partial list, Intervenors cite 50 components which allegedly
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demonstrate inconsistencies between quality group and quality. assurance categories in LILC0's classification (p. 24), 31 instances which allegedly show inconsistencies between quality assurance and seismic categories in LILCO's classification (p. 27) and a total of 63 items as to which NRC requested expansion 6f the Shoreham classification table (pp. 28-29).
Intervenors have attempted to open through their prefiled testimony precisely the system-by-system analysis which the Board precluded at this time in its order admitting Contention 7B because Intervenors had failed to provide a sufficient basis for such an analysis.
Intervenors informed counsel for the Staff and LILC0 that they had chosen only two systems against which to test the methodology used at Shoreham rather than three as permitted by the Board -- the water level indication system and the standby liquid con, trol system.
Those two systems are highlighted in the prefiled testimony at pages 42 through 51. The Staff submits, however, that the dozens of systems otherwise discussed throughout the prefiled testimony are not oper subjects fo'r litigation at this time as the
-4 Board clearly outlined in its March 15, 1982 Memorandum and Order.
Accordingly, all such testimony (as listed in the attached Appendix) should be stricken as beyond the scope of the contention as admitted and therefore irrelevant.
The Staff further submits that those portions of Intervenors' prefiled testimony relating to an allegedly inadsquate resolution for Shoreham of unresolved safety issue A-47 (pages 54-57) and those portions of the testimony raising any issue about multiple failures (pages 12-16) should also be stricken as beyond the scope of the contention as admitted by the Board.
Unlike unresolved safety issue A-17, which was raised in SOC Contention 7B and the Board's March 15, 1982 Memorandum and Ord r, unresolved safety issue A-47 has been introduced into this proceeding for the first time by Intervenors' prefiled testimony.
Similarly, multiple failures were not raised by Intervenors and were not mentioned by the Board in admitting Contention 7B.
It is far too late for Intervenors to be amending Contention 7B to include allegations about a previously uncited unresolved safety issue and related matters.
The prefiled testimony concerning A-47 and multiple failures should be stricken in its entirety.
B.
The Prefiled Testimony As Legal Argument and Conclusions Rather Than Aomissible Evidence A reading of Intervenors' prefiled testimony on Cont'ention 7B reveals that what has been filed is in large part a legal brief rather than factual evidence or expert opinion about disputed factual issues.
Page after page recites language from the Commission's regulations and gives Intervenors' interpretation of the proper construction of those regulations and the requirements they purportedly impose on LILCO.
- See,
e.g., pp. 3-8, 10-12, 63.
While the Staff certainly welcomes the exposition of Intervenors' case which is provided, that exposition is not proper evidence in this proceeding and should not be admitted as such.
The Commission's Rules of Practice establish the following requirement with respect to the admissibility of evidence:
"Only relevant, material, and reliable evidence which is not unduly repetitious.will be admitted.
Immaterial or irrelevant parts of an admissible document will be segregrated and excluded."
10 C.F.R. @ 2.743(c).
The portions of Intervenors' prefiled testimony on Contention 7B cited in the attached Appendix do not satisfy that requirement.
" Evidence," as that term is comonly used, consi,sts of facts.
It may also include expert opinion on factual matters.
'" Evidence" does not include legal argument when it amounts to a brief and there is no need to clutter what will eventually be a very lengthy record with argument of the type contained in the portions of the prefiled testimony cited in the attached Appendix.
The Appeal Board very recently held that Federal Rule of Evidence 702 provides an appropriate standard for judging whether a prospective witness qualifies as an expert in NRC proceedings.
Duke Power Co.
(William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC (slipop.at40-41, March 30,1982).
As the Appeal Board explained:
"[T] hat rule allows a witness qualified as an expert by[i]f
' knowledge,
skill, experience, training, or education' to testify '
scientific, technical, or other specialized knowledge will assist the trier of fact, to understand the evidence or to determine a fact in issue.'
The accompanying Advisory Comittee notes state that
'whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. '
Notes of Advisory Committee on Proposed Rules, 28 U.S.C.A., Federal Rules of Evidence, fol. Rule 702."
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Id_.
In a decision relying in part on Federal Rule of Evidence 702, the Licensing Board in Illinois Power Co. (Clinton Power Station, Units 1 and2),LBP-75-59,2NRC579,586-588, granted a motion by Staff counsel to strike portions of prefiled testimony which contained le conclusions regarding EPA water law.2/ The same result shoulo a reached by this~ Licensing Board with respect to the cited portions of the I
prefiled testimony, i
While some citation of the regulations is necessary to put testimony in a proper context, page upon page of legal argument and conclusions is not permissible.
If Intervenors wish to introduce portions of the Standard Review Plan, Regulatory Guides or other i
documents to provide a basis for proposed findings or supporting
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argument, they are free to do so under normal evidentiary rules.
It is unnecessary and improper, however, to permit the introduction of a legal brief as testimony where fact is closely intertwined with interpretation and argument.3/
The discussion of unresolved safety issues A-17 and A-47 (at pages 51-60) provides a clear example of the type of prefiled testimony to which.the Staff is objecting on the grounds that it crosses the line between admissible evidence and. legal argument. After quoting several i
-2/
The Licensing Board also struck portions of the testimony as improper hearsay evidence. This result was questioned by the Appeal Board on appeal, but the Appeal Board did not question the principle that legal conclusions could be stricken from prefiled testimony.
Clinton, ALAB-340, 4 NRC 27, 30-31 (1976).
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A closely-related but legally separate issue is whether these witnesses are competent to testify on certain of the matters contained in the prefiled testimony.' The Staff may assert such an argument if still necessary after conducting voir dire examination.
7-authorities regarding the importance of systems interaction problems and statements contained in the Staff's Safety Evaluation Report for Shoreham, the prefiled testimony at pages 52 and 54 cites Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 and 2),
ALAB-491, CCH Nuc. Reg. Rptr. 5 30,321 (1978) and concludes that the.
Staff has left unanswered "the North Anna inquiry of why it allegedly is acceptable to permit operation of Shoreham with this issue unresolved and with no apparent progress toward resolution." Prepared Direct Testimony..., at 54-55.
It is unnecessary and improper to have this legal argument concerning unresolved safety issues in the evidentiary record where it can be cited a_s_ fact in support of proposed findings and conclusions.
The Safety Evaluation Report will be a part of the factual record.
The argument as to whether the Staff has satisfied the requirements of North Anna for any unresolved safety issue which is properly in litiga-tion here can and should be made when proposed findings are submitted.
C.
The Prefiled Testimony As Irrelevant Two principal areas of the prefiled testimony must be stricken as irrelevant to any issue admitted for litigation in this proceeding and therefore not admissible under 10 C.F.R. 5 2.743(c).
Section III.C of the prefiled testimony (at pages 12-16) presents an argument that multiple-failure accidents have occured at operating reactors.
The Staff has already argued that multiple failure are beyond the scope of the contention as admitted by the Board and that this section of the prefiled testimony sho'uld be stricken for that reason. The section is also vulnerable to a. broader attack on its relevance.
This proceeding 9
concerns the licensing of the Shoreham nuclear facility of LILCO.
It does not involve Three Mik Island-2, Dresden II, or Browns Ferry and the Licensing Board should not permit this proceeding to digress into renewed litigation over each of those facilities.
The second area of irrelevant matter in the prefiled testimony appears'in Section VIII (at pages 60-72).
Intervenors there argue that other methodologies are available to supplement the design basis approach utilized by LILC0 for Shoreham and that there are additional categories of classification which should be utilized at Shoreham. The Staff submits that the relevant issue here is whether the methodology utilized by the Staff and by LILC0 in reviewing Shoreham is appropriate to ensure compliance with the regulations. This issue does not require an open-ended inquiry into the preferability or feasibility of alternative methodologies. The applicant in this proceeding must demonstrate compliance with the Commission's regulations in order to obtain an operating license. Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003, 1006-11 (1973), aff'd, CL1-74-2, 7 'EC 2, aff'd sub nom. Citizens for Safe Power v. NRC, 524 F.
2d 1291,1299-1300 (D.C. Cir.1975); Public Service Co. of New Hampshire,.
et al. (Seabrook Station, Units.1 and 2), ALAB-422, 6 NRC 33, 42-43 (1977); see NRC Policy Statement, 45 F.R. 41738 (June 20g 1980).
If there has not been compliance, no license should issue. What must be explained.is what was done and whether that ensures compliance with the regulations.
- . III.
CGNCLUSION Substantial portions of the prefiled testimony submitted by Intervenors on Contention 7B are beyond the scope of the contentien as it was admitted by the Licensing Board, constitute legal argument rather than admissible evidence or are otherwise irrelevant.
For the reasons discussed above, the portions of the prefiled testimony listed in the attached Appendix should be stricken and not admitted as evidence in this proceeding.
Respectfully submitted, f-Richard J. Rawson Counsel for NRC Staff Dated at Bethesda, Maryland this 30th day of April,1982.
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APPENDIX A.
Portions of " Proposed Direct Testimony..." which are beyond the scope of contention 78 as admitted in this proceeding:
Page Lines 12 8 "A most serious..."
through 16 15 "...and prudent."
21 1-16 "LILCO's....public."
22 20 "Indeed...."
through 30 end of Table IV-2 31 16 "From this correlation..."
through 37 22 "... equipment".
38 23 "For example..."
through 41 and ".... Table 3.2.1-1."
55 3 " Task A-47...."
through 57 13 "....and these studies."
62 13 "Past experience...."
through i
63 5 "....not desirable."
B.
Portions of " Proposed Direct Testimony..." which constitute legal argument and conclusions rather than relevant, material and reliable factual evidence or expert testimony:
Page Line 3
1 "The NRC's..."
through 8
16 "...particular GDC.11j" 9
13 "The application..."
through 11 10 "...public safety."
51 20 "In previous..."
through 60 17 "... control systems."
63 16 "The NRC's...."
through 63 20 "... systems.67/"
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Portions of " Prepared Direct Testimony..." which are otherwise irrelevant:
{
Page Line i
12 8 "A most serious..."
through 16 15 "...and prudent."
j 60 20 "LILC0 has..."
through I
72 8 "...be reclassified."
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4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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LONG ISLAND LIGHTING COMPANY Docket No. 50-322
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(OL)
(ShorehamNuclearPowerStation,
)
Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF MOTION TO STRIKE PORTIONS OF INTERVENOR'S PREFILED TESTIMONY ON CONTENTION 7B" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asteris'k, by deposit in the Nuclear Regulatory Commission's internal mail system, or, as indicated by double asterisks, by express mail, or, as indicated by triple asterisks, by hand delivery, this 30th day of April, 1982:
Lawrence Brenner, Esq.*
Ralph Shapiro, Esq.
Administrative Judge Cammer and Shapiro Atomic Safety and Licensing Board 9 East 40th Street U.S. Nuclear Regulatory Commission New York, NY 10016 Washington, D.C.
20555 Dr. James L. Carpenter
- Administrative Judge Howard L. Blau, Esq.
Atomic Safety and Licensing Board 217 Newbridge Road U.S. Nuclear Regulatory Commission Hicksville, NY 11801-Washington, DC 20555 Dr. Peter A. Morris
- W. Taylor Reveley III, Esq.
Administrative. Judge Hunton & Williams Atomic Safety and Licensing Board P.O. Box 1535 U.S. Nuclear Regulatory Commission Richmond, VA 23212 Washington, DC 20555 Matthew J. Kelly, Esq.
Staff Counsel New York Public Service Commission 3 Rockefeller Plaza Albany,.NY 12223 i
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- Stephen B. Latham, Esq.
John F. Shea, III, Esq.
Twomey, Latham & Shea
- Herbert H. Brown, Esq.
Attorneys at Law
' Lawrence Coe Lanpher, Esq.
P.O. Box 398 Karla J. Letsche, Esq.
33 West Second Street Kirkpatrick, Lockhart, Hill, Riverhead, NY 11901 Christopher & Phillips 1900 M Street, N.W.
8th Floor Atomic Safety and Licensing Washingtpn, D.C.
20036 -
Board Panel
- U.S. Nuclear Regulatory Commission Docketing and Service Section*
Washington, D.C.
20555 Office of the Secretary U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board Panel
- U.S. Nuclear Regulatory Commission Washington, DC 20555 c
i Richyto J. Rawson Counsel for NRC Staff e
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m COURTESY COPY LIST Edward M. Barrett, Esq.
Mr. Jeff Smith General Counsel Shoreham Nuclear Power Station Long Island Lighting Company P.O. Box 618 250 Old County Road North Country Road Mineola, NY 11501 Wading R,iver, NY 11792 -
Mr. Brian McCaffrey MHB Tech'nical Associates Long Island Lighting Company 1723 Hamilton Avenue 175 East Old Country Road Suite K i
Hicksville, New York 11801 San Jose, CA 95125 flarc W. Goldsmith Hon. Peter Cohalan Energy Research Group, Inc.
Suffolk County Executive 400-1 Totten Pond Road County Executive / Legislative Bldg Waltham, MA 02154 Veteran's Memorial Highway Hauppauge, NY 11788 David H. Gilmartin, Esq.
Suffolk County Attorney ~
- Mr. Jay Dunkleberger.
County Executive / Legislative Bldg.
New York State Energy Office Veteran's Memorial Highway Agency Building 2 Hauppauge, NY 11788 Empire State Plaza Albany, New York 12223 9
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