ML20052D070
| ML20052D070 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/30/1982 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8205060244 | |
| Download: ML20052D070 (15) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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50-322. (OL)lj {D LONG ISLAND LIGHTING COMPANY
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Docket No.
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(Shoreham Nuclear Power Station, )
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MOTION OF LONG ISLAND LIGHTING COMPAl{Y
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e SC/ SOC DIRECT TESTIMONY ON CONTENTION 7B'
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jY On April 13, 1982, Suffolk County and the Shoreham Opponents Coalition (hereinafter SC/ SOC or Intervenors) filed a lengthy and prolix piece of direct testimony concerning their Contentien 7B, which this Board had carefully distilled from eight precursor contentions filed by one or the other of Intervenors.1/
Long Island Lighting Company (LILCO or the 1/
This contention, stated at p.12 of the Board's Memorandum and Order of March 15, 1982 and accompanied by an extended and careful discussion thereof (Id. at 2-15), reads as follows:
LILCO and the Staff have not applied an
])SC83 adequate methodology to Shoreham to analyze the reliability of systems, taking into account _sys-f tems interactions and the classification and qualification of systems inportant to safety, to
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determine which sequences of accidents should be considered within the design basis of the plant, and if so, whether the design basis of the plant in fact adequately protects against every such footnote continued 8205060244 820430 PDR ADOCK 05000322 O
. Applicant) moves at this time, prior to the start of question-ing, to strike certain portions of the SC/ SOC testimony, in the areas and for the reasons stated below.
I.
The SC/ SOC Testimony Exceeds the Scope of the Contention Permitted By the Licensing Board.
One criterion for admission of testimony under the Commission's rules of practice, 10 CFR S 2.743(c), is that the testimony be relevant to issues in contention.
It is well set-tied that issues outside the scope of an admitted contention are subject to a motion to strike.
See 10 CFR Part 2, App. A, V(d)(7).
The SC/ SOC testimony violates the limits set by the Board on their Contention 7B in the following respects:
A.
System-by-System Examples Beyond the Scope of Contention 7B:
The Board permitted Intervenors to file testi-mony going to the " general methodology" used by LILCO and the footnote continued sequence.
In particular, proper systematic methodology such as the fault tree and event tree logic approach of the IREP program or a systematic failure modes and effect analysis has not been applied to Shoreham.
Absent such a methodological approach to defining the impor-tance to safety of each piece of equipment, it is not possible to identify the items to which General Design Criteria 1, 2,
3, 4,
10, 13, 21, 22, 23, 24, 29, 35, 37 apply, and thus it is not possible to demonstrate compliance with these criteria.
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- 4 Staff to perform safety evaluations for the Shoreham plant j
(March 15 Order at 13).
The Board concluded that the conten-i tion would have been too vague and lacking an adequate basis if'
-applied to a " substantive. system-by-system analysis".
(Id.)
'The Board therefore restricted Intervenors, if they wished to
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test the methodology by particular applications, to discussion of "a maximum of three examples of plant design'which in their view illustrate the inadequacy of the methodology as alleged in their restated contention" (Id.) (emphasis supplied)
Intervenors have undertaken extended discussion, at i
pages 42-51 of their prefiled testimony, of two examples of their methodological contentions:
water level indicators (an alleged systems interaction problem, pp. 42-47) and'standSy i
liquid control systems (an asserted classification deficiency,
)
pp. 48-51).
While LILCO disagrees with the conclusions of this I
discussion, it does not object to its admission, since the-two j
examples were plainly within the scope of the contention admit-ted by the Board.
However, the following additional examples introduced by Intervenors are clearly beyond the. scope of the contention as admitted by the Board:
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1.
Discussion of main feed water system and main turbine system (p.21, lines 4-16).
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Allegedly improper classification of safety grade systems (p.24, 1.9 through p.30), in-cluding Table IV-1 which examines 31 separate l
systems or components.
3.
Discussion of six sequences for accidents or transients comparing FSAR Chapter 15 design analyses with Emergency Operating Procedures (EOPS), and specifically examining the turbine bypass system (p.35 1.19) and the feed water control system (p.36 1.6).
It also relies on a four-page " Exhibit 4," which lists and pur-ports to classify every system or component identified by Intervenors as pertaining to Chapter 15 or EOPS -- over 60 systems or com-ponents in all.
This comparison of accident evaluation methods is set forth in the entir-ety of 6 V.A.
(pp.31-37) and particularly at pp. 34-37.
4.
Enumeration of nine components or systems which are assertedly misclassified with re-spect to their safety function or not fully included within the list of safety-related equipment set forth in Table 3.2.1-1 of the I
. FSAR.
The components or systems include:
the Turbine Bypass System (pp. 39-40), the Level 8 Trip (pp. 39-40), the Rod Block Monitor (pp.
39-40), and RCIC (pp.39-40), the Feed Water Control System (p.40), the Feed Water Piping System (p.41), the Automatic Depressurization System (p.41), safety relief valves (p.41),
and control rod insertion systems (p.41).
The discussion of these systems permea'tes the dis-cussion in 6 V.B.
(p.38 1.16 through p.41),
and LILCO moves that this entiresection be stricken.
B.
Discussion of Other Plants ( S III.C., p.12 1.8 through p.16 1.15):
Intervenors set forth in this portion of 4r testimony a lengthy, ff conclusory, characterization of the Three Mile Island rg'?id nt (p.12 1.10 through p.14 1.10) and of various "BWR ' r a de ie" (p.15, lines 11-21) and a sum-mary recapitulation (p.15 1.22 through p.16 1.16).
The discus-sion is of an extremely broad nature with no attempt to lay a foundation specific to the Shoreham plant design of the acci-dents described (and accident risks presumed).
There is no argument that any of the plants at which the accidents occurrei i
were licensed in a fashion inconsistent with NRC regulations, l
nor that they and Shoreham are similar in any relevant way.
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Contention 7B as admitted by this Board permits a dis-cussion of alleged inadequacies in the methodology used at Shoreham by LILCO and the Staff.
It does not contemplate a historiography of accidents and transients at TMI or other plants.
Without an allegation that there is either a violation of NRC regulations apparent in these other plants' histories, or a specific showing of their relationship to Shoreham, or a specific area of the contention to which this portion of the testimony can be attributed -- and LILCO believes that none of r
these exist -- LILCO believes that this portion of the testi-mony must be struck as being outside the scope of'the conten-tion admitted by the Board.2/
C.
Discussion of Unresolved Safety Issues ( S VII.B, p.51 1.16 - p.60 1.17):
Systems interaction is a primary focus of SC/ SOC Contention 7B, and is the subject of NRC unresolved safety issue 17.
Thus, while it is not referred to specifi-cally in Contention 7B, its discussion as applied specifically to Shoreham is not definitionally outside the scope of the con-tention.
The same cannot be said, however, of unresolved 2/
The only alternative would be to regard the discussion on these pages as being a generic criticism of the method of licensing evaluation required by the Commission -- a matter, depending on its complexion, either barred by 5 2.758 or more appropriate for rulemaking than for licensing proceedings.
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9 i safety issue 47 (Safety Implications of Control Systems), which is founded neither in Contention 7B3/ nor in even any precursor contention (see Board Order of March 15 at 3,11).
In any event, discussion of unresolved safety issues, whether 17 or 47 or any other, if permitted at all, must be directed to its spe-cific application to Shoreham within the scope of expertise of the witnesses.
The discussion is not so directed but is rather in the nature of a legal brief rather than factual testimony within the scope of expertise of the witnesses.4/
Even its ostensible application to Shoreham is pro forma (See p.
57 lines 3-13 for issue 47, p.60, lines 5-17 for issue 17).
The
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extensive discussion of 9 VII.B should be struck.
II.
The SC/ SOC Testimony Includes Material Which is Conclusory and Without Foundation Contention 7B as admitted by this Board permits, in its last sentence, analysis of the following assertion:
Absent such a methodological approach to defining the important to safety of each piece of equipment, it is not possible to identify the items to which General Design Criteria 1, 2, 3,
4, 10, 13, 21, 3/ Nor is it found in any precursor contention, by contrast to unresolved safety issues 17 (Board Order of March 15 at 3, 11).
4/ This section of the testimony is being objected to separa-tely, in III.A below, on the ground that it constitutes legal argument rather than expert testimony.
. 22, 23, 24, 29, 35, 37 apply, and thus it is not possible to demonstrate compliance with these criteria.
Nowhere in the SC/ SOC testimony is there any kind of systematic discussion of the need for systematic analysis of each of these General Design Criteria.
Nor, more importantly, is there any such discussion of the relationship of these GDC to alleged deficiencies in the Sh'oreham plant.
The first dis-cussion of these criteria occurs in S IX, the Conclusion of the prefiled testimony, where each of the GDC listed in Contention 7B is litanistically referred to along with a conclusory state-ment of its purpose, andthecosmicconclusiondrkwnthat"[i]t is not possible to find that Shoreham has met the above criter-ia until there has been a systematic analysis" of the nature contended for by SC/ SOC.
(SC/ SOC testimony at 74 lines 14-15).
Such conclusory treatment, unsupported by analysis, does not establish al. adcquate basis for expert testimony and should be struck.
III.
Portions of the SC/ SOC Testimony Should Be Struck As Legal Argument Outside the Scope of Expertise of the Witnesses.
The SC/ SOC testimony contains three discussions which contain no factual material or analysis based on the shoreham application and amount, rather, to legal argument urging legal l
conclusions based on case law or regulations.
Such argument is I
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not admissible as expert opinion testimony from technically trained witnesses.5/ The areas in question are the following:
A.
Section VII (p.51 1.17 through p.60 1.17).
This section, objected to above because it is outside the scope of Contention 7B, treats unresolved safety issues A-17 and A-47.
Passing for the moment the legitimacy of the inclusion of these issuee witnia Contention 7B, this section is primarily a legal argument, rather than a technical analysis.
The section begins with a three-page analysis of legal standards and string-quotes or characterizations of the views of persons or organizations not parties to this docket (p.51 1.17 through p.54 1.16).
5/
It is established within this Commission as well as other forums that legal argument does not constitute admissible expert testimony from persons whose expertise lies in other disciplines.
E.g.,
Illinois Power Company (Clinton Power Station, Units 1 and 2), LBP-75-59, 2 NRC 579 (September 30, 1975) at 585-86, reviewed ALAB-340, 4 NRC 27, 31 (July 29, 1976).
This principle is illustrated by Federal Rule of Evidence 702, permitting experts qualified in " scientific, technical or other specialized knowledge" to render opinion testimony in such areas if it "will assist the trier of fact to understand the evidence or to determine a fact in issue...."
(Emphasis supplied.)
The emphasis is thus on usefulness to the trier of fact in that function, and not in areas outside either that function or outside the expert's area of expertise.
While the Federal Rules of Evidence are not binding on this Commission, they nevertheless provide guidance which may be made use of.
Duke Power Company (McGuire Power Station)
ALAB-669, slip op. at 40.
These, plus the traditional re-straint on non-legal experts testifying on matters of law, e.g.,
spellman v. American Barge Line Co.,
176 F.2d 716, 720 (3d Cir. 1949), require exclusion of legal argument masquerad-ing as testimony from witnesses who are put forward on a claim of their technical expertise.
4 Then, after summarizing the Staff's treatment of unresolved safety issues 17 and 47 in the SER, the testimony leaps straight to the conclusions that this treatment is inadequate under the legal standards set forth above, and that neither of these issues can be satisfactorily addressed without the use of methodologies advocated by SC/ SOC.
There is no independent factual information of a technical nature conveyed in this sec-tion.
While not objectionable as legal argument, it is not testimony from technical experts and should not be permitted in this proceeding.
B.
The first portion of the SC/ SOC conclusions (p.72 1.10 through p.74 1.19) consists of one-phrase summaries of the requirements of some thirteen General Design Criteria listed in Contention 7B, and then of the unadorned conclusion that demon-stration of Shoreham's compliance with them is "not possi-ble.
until there has been a systematic analysis.
." of the kind advocated by SC/ SOC.
The recitation of various i
General Design Criteria is not linked by earlier factual dis-cussion to any specific aspect of the Shoreham plant.
Nor are the cited criteria linked to the conclusion which follows their recitation by any kind of detailed analysis.
In short, this material is pure argument, not technical testimony within the scope of expertise of the witnesses.
It should be struck.
. C.
Characterization of the application of the single failure criterion (p.6 1.2 throu'gh p.8 1.4):
Initial portions of the prefiled testimony appraise the consistency of the Shoreham design with the requirements of the single-failure criterion embodied in numerous of the General Design Criteria.
While this type of argument is not inherently improper from technical experts as being of a fundamentally legal nature, the question is one of the thrust and " center of gravity" of the argument.
The SC/ SOC testimony starts out with a recitation of the definition of a " single failure" as used in the GDC (see SC/ SOC testimony at 6, note 8).
However, rather~.than proceed to analyze the Shoreham reactor as against this regulation, SC/ SOC devotes three pages to outlining two distinct sets of glosses on this regulation -- the first on pages six and seven (p.6 1.2 through p.7 1.4), the second immediately thereaf ter (p.7 1.5 through p.8 1.4).
These glosses on a regulation which speaks for itself are pure argument, unsupported by any refer-ence to authority either factual or legal.
They are not tech-nical testimony within the scope of expertise of these witness and should not be admitted.
IV.
Hearsay.
The SC/ SOC testimony is rife with quotations, para-phrases and asserted conclusions from a variety of sources of I
. broadly varying weight.
They are the most fundamental kir.d of hearsay.
Although LILCO does not object to their use as a basis (however sound) for conclusions reached by SC/ SOC, LILCO objects to their admission for the truth of the assertions con-tained in any of these hearsay statements.
A list of such statements or references is attached hereto.
CONCLUSION For the foregoing reasons, the portions of the SC/ SOC testimony referred to above should be struck or should be limi-ted as suggested.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY By
~ Taylor Reveley, III W.
T.
S.
Ellis, III Donald P.
Irwin Hunton & Williams P.
O. Box 1535 Richmond, Virginia 23212 Attachment DATED:
April 30, 1982
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l ATTACHMENT TO MOTION TO STRIKE The following quotations and characterizations are objected to as hearsay, pursuant to Argument IV in the Motion to Strike:
1.
page 4, lines 8-13.
2.
page 9, lines 4-10.
3.
page 12, line 21 through page 13, line 6.
4.
page 12, footnote 15.
5.
page 13, line 12 through page 14, line 5.
6.
page 14, footnote 19.
7.
page 15, lines 17-21.
8.
page 16, lines 1-11.
9.
page 20, footnote 29.
10.
page 45, lines 6-18 and footnote 41.
11.
page 47, footnote 42 12.
page 52, line 17 - page 53, line 4.
13.
page 53, lines 5-10.
14.
page 53, lines 11-20.
15.
page 54, lines 4-15.
16.
page 55, lines 12-15.
17.
page 58, lines 4-13.
18.
page 58, footnote 58.
19.
page 59, lines 1-17.
20.
page 59, footnotes 59-63.
21.
page 61, lines 11-17, lines 20-27 22.
page 62, lines 1-3.
23.
page 62, footnote 62, lines 4-6.
24.
page 66, lines 15-18 and footnote 70.
25.
page 66, lines 19-21 and footnote 71.
26.
page 67, lines 12-23 and footnote 72.
27.
page 68, lines 1-d and footnote 73.
28.
page 70, lines 11-13 and footnote 78.
29.
page 70, lines 13-16 and footnote 79.
30.
page 70, lines 16-18 and footnote 80.
31.
Exhibit 1.
32.
Exhibit 5.
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In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322 (OL)
I hereby certify that copies of Motion of Long Island Lighting Company to Strike Portions of SC/ SOC Direct Testimony on Contention 7B were served upon the following by first-class mail, postage prepaid, or by hand (as indicated by an aster-i isk), on May 1, 1982.
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Lawrence Brenner, Esq.
Atomic Safety and Licensing Administrative Judge Appeal Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Atomic Safety and Licensing Board Panel Dr. Peter A.
Morris U.S. Nuclear Regulatory Administrative Judge Commission Atomic Safety and Licensing Washington, D.C.
20555 Board Panel U.S. Nuclear Regulatory Bernard M.
Bordenick, Esq.
Commission David A.
Repka, Esq.
Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Dr. James H. Carpenter Washington, D.C.
20555 Administrative Judge Atomic Safety and Licensing David J. Gilmartin, Esq.
Board Panel Attn:
Patricia A.
Dempsey, Esq.
U.S.
Nuclear Regulatory County Attorney Commission Suffolk County Department of Law Washington, D.C.
20555 Veterans Memorial Highway Hauppauge, New York 11787 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Herbert H.
Brown, Esq.*
Howard L.
Blau, Esq.
Lawrence Coe Lanpher, Esq.
217 Newbridge Road Karla J.
Letsche, Esq.
Hicksville, New York 11801 Kirkpatrick, Lockhart, Hill, Christopher & Phillips Matthew J.
Kelly, Esq.
8th Floc
- New York State Energy Office 1900 M Street, N.W.
Agency Building 2 Washington, D.C.
20036 Empire State Plaza Albany, New York 12223 Mr. Mark W. Goldsmith Energy Research Group Mr. Jay Dunkleberger 400-1 Totten Pond Road New York State Energy Office Waltham, Massachusetts 02154 Agency Building 2 Empire State Plaza MHB Technical Associates Albany, New York 12223 Twomey, Latham & Shea 33 West Second Street P.O.
Box 398 Riverhead, New York 11901 Ralph Shapiro, Esq.
Cammer and Shapiro, P.C.
9 East 40th Street New York, New York 10016 1
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r Donald P.-Irwin Hunton & Williams 707 East Main Street P.O.
Box 1535 Richmond, Virginia 23212 DATED:
May 1, 1982 1
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