ML20080D440
| ML20080D440 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/06/1984 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL-3, NUDOCS 8402090126 | |
| Download: ML20080D440 (12) | |
Text
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LILCO, February 6, 1984 00CKETED U ?-it C
'84 FEB -8 1110 :13 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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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, )
Proceeding)
Unit 1)
)
LILCO'S ANSWER OPPOSING SUFFOLK COUNTY MOTION FOR LEAVE TO FILE REBUTTAL TESTIMONY ON CONTENTION 23 On February 1, 1984, Suffolk County filed a "Suffolk County Motion for Leave to File Rebuttal Testimony on-Conten-tion 23."
The testimony itself, which was served the following day, is called " Rebuttal Testimony of Stephen Cole and Andrea Tyree on Behalf of'Suffolk County Regarding Contention 23 (Evacuation Shadow Phenomenon)."
It discusses a paper by John Sorensen and Brad Richardson (Suffolk County Exhibit EP-3), re-ferred to below as "the Sorensen paper."
For the reasons stat-ed below, LILCO opposes the County's motion.
The County gives four basic reasons for filing addi-tional testimony at this late date:
(1) Dr. Sorensen was not identified as a LILCO witness until October 31, 1983, and therefore the County did not have an oppor tunity to depose him; 8402090126 840206 gDRADOCK 05000322 PDR
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. (2) The County did not receive a copy of the Sorensen paper until November 10, 1983; (3) The County was hindered by a confidentiality agree-ment that restricted its ability to disseminate the Sorensen paper to its witnesses and others; and (4) The County was surprised by LILCO's reliance on the 3orensen paper because the County thought the paper supported the County's case and not LILCO's.
The standard for introducing rebuttal testimony at this date, as indicated in the Board's Order Confirming Schedule Changes of January 31, 1984, is a showing of " good cause."
Suffolk County has not, and cannot, show good cause, for two reasons:
1.
LILCO advised the County that LILCO was relying on the Sorensen paper on August 8, 1983.
Not until November 9 did.the County request a copy, and when it did LILCO sent a copy by Federal Express the same day.
2.
The Sorensen paper analyzes data published by Cynthia Flynn in 1979.
The same data are refer-enced in the written direct testimony of County
. witnesses Johnson, Ziegler, and Saegert.
The Coun-ty could have analyzed the Flynn data as part of its direct case in November but chose not to.
We will elaborate on these points below.
. t I.
THE COUNTY HAD AMPLE NOTICE OF THE SORENSEN PAPER A.
Identification of the Sorensen Paper The County argues that it received the Sorensen paper too late to address it in its November written testimony.
In fact, as the County notes in footnote 3 on page 3 of its mo-tion, Dr. Sorensen's paper was listed in a bibliography provid-ed to the County on August 8, 1984.
That bibliography, fur-nished in response to a County discovery request, listed the articles on which LILCO relied for its assertion that "the fac-tors determining human response in emergencies are not differ-ent between nuclear and natural hazard emergencies."
Not until November 9, thr~e months later, did the Coun-e ty request a copy of the Sorensen paper.
The County's November 9 request for Dr. Sorensen's paper was sent by telecopier, and the same day counsel for LILCO sent a copy of a confidentiality agreement and the Sorensen paper by Federal Express to counsel for Suffolk County; thus the County received the paper less than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> after it asked for it.
Had the County requested the paper in August, when it was identified during discovery, LILCO would have provided it then.
. d B.
Identification of Dr. Sorensen as a Witness The County argues that the late identification of Dr.
Serensen as a vitness prevented the County from deposing him.
Dr. Sorensen was identified as a witness on October 31, 1983, as soon as LILCO retained him and over two weeks prior to the filing of the Group I testimony.
His resume was provided four days later.
The County did not ask to depose Dr. Sorensen dur-ing the 18 days prior to filing ' testimony.
The County implies that it was discouraged from doing so by the October 14 cutoff date for depositions.
But in the~ past the County has not been reticent about asking for la te discovery.
For example, the County filed a lengthy request for quality assurance documents after LILCO had filed its written testimony on quality assur-ance.
C.
The Confidentiality Agreement As for the confidentiality agreement covering the paper, it did include a clause prohibiting counsel for the County from copying the paper; the County had insisted upon a like clause in the confidentiality agreements it had required LILCO to execute.
But if the County, when it finally requested the Sorensen paper, had identified any additional consultants to whom the paper was to be sent, LILCO would have included ad-ditional copies of the paper and the confidentiality agreement
l
. for those individuals.
Indeed, had the County requested it, LILCO would have sent the papers and confidentiality agreement directly to the County's consultants rather than to counsel for Suffolk County.
In fact, LIL,CO subsequently sent copies of Dr.
Sorensen's paper by Federal Express to the County's consultants directly to avoid delay.
D.
The County's-Surprise Finally, the County argues that it was surpriced by LILCO's testimony on November 18 because the County thought Dr.
Sorensen's paper supported the County's case rather than LILCO's.
It thought so despite the list of documents, men-tioned above, that LILCO,provided~in August:
The County was surprised by LILCO's reliance in its November 18' testimony on Dr. Sorensen's paper to support'its argu-ment concerning the TMI evacuation, since the County believes Dr. Sorensen's data in fact show exactly the opposite of what LILCO contends.
County motion 4.
Indeed, because the Sorensen data in fact support the County's interpretation of the svents at TMI rather than LILCO's, it did not occur to the County witnesses, prior to reading the LILCO testimony, to address a LILCO argument'to the contrary.
County motion 6.
Thus we are now told that before LILCO filed its testimony the County knew that Dr. Sorensen was going to testify for LILCO,-that the County believed that his paper sup-ported the County's case, and yet that the County elected not
..... to discuss or even mention his paper in its direct case.
Nor did the County ask to amend its direct testimony promptly after it read LILCO's testimony in November.
Instead, it waited until a month and a half after cross-examination had failed to shake Dr. Sorensen's testimony and then to file testimony pres-enting its own interpretation of the model discussed in Dr.
Sorensen's paper.
In short, the County's argument that its need to file rebuttal testimony is due to LILCO's tardiness will not with-stand examination.
Nor can the County justify the additional two months (between November and February) it waited before seeking to file supplemental testimony.
Even had the County required a monthl/ to complete its supplemental testimony and had filed it in December, there would have been time to address that testimony in the hearings and cross-examination that took place on shadow phenomenon in December and January.
- Instead, we are now faced with yet another request that would delay the completion cf the " Group I" litigation.
The fact of the matter is that the County is out of time and has not shown good cause.
1/
Although admittedly the matter is not clear, there is no reason to believe that it took a long time to write the Cole-Tyree testimony, once it was begun.
On January 27 Suffolk County had not made a " definite determination" whether to sub-mit rebuttal testimony or not (Tr. 3636).
The County was going to review the record of the past week and make that determina-tion (Tr. 3636-37).
The testimony was completed and filed by February 2.
i
. II.
THE COUNTY HAS LONG BEEN AWARE OF THE TMI DATA ANALYZED IN THE SORENSEN PAPER Even had the Sorensen paper never been made available to the' County, there would have been nothing, so far as we can te.1, to prevent the County from submitting its " rebuttal" tes-timony in November.
The fact of the matter is that Dr.
Sorensen's paper analyzes data collected years before, and made publicly available, by Cynthia Flynn.
The Cole-Tyree testimony presents "some additional analysis of the data presented in Sorensen and Richardson's TMI paper" (Cole-Tyree testimony 6) and notes that:
The variables we used in our analysis are, of course, identical to those used by Sorensen and Richardson and are de-scribed in Table 1 of their paper on page 11.
Cole-Tyree testimony 7.
As page 9 of the Sorensen paper points out, those variables were the ones published by Cynthia Flynn in 1979:
Methods Data and Variables Data for this research were provided by the Nuclear Regulatory Commission through a survey conducted by Mc mtain West Research, Inc. (Flynn, 1979).
The same data limitations, discussed earlier for Flynn (1982),-apply to our analysis.
Eleven variables representing theoretical constructs that are hypothesized to pre-dict the social impact of a technological hazard and which result in a dichotomous behavioral response (i.e.,
evacuation versus no evacuation), were selected.
The variables in the model are described in Table 1.
?+
4 Sorensen paper.(Suffolk County Exhibit EP-3), ff. Tr. 1839, at 9'.
The County was certainly aware of the Flynn data when it filed its direct testimony in November, because three of its
~
witnesses cited those very data.
In their written testimony Drs.. Johnson and Ziegler cited Cynthia Flynn's work as corrobo-rating their own studies of Three Mile Island.2/
Moreover, the County's witness Dr. Saegert included Cynthia Flynn's work in the list of' references attached to her testimony.3/
Since Drs.
Johnson and Ziegler cited the Flynn data as supporting their views, and since they also testified that fear of radiation explains the.so-called " shadow phenomenon" (Ziegler-Johnson written testimony 23-25), there is simply no " good.cause" for now filing an analysis of.the Flynn data that purports to show the.importance of fear of radiation.
Therefore, for-the reasons stated above, LILCO requests that the Licensing Board deny the Suffolk County Motien for Leave to File Rebuttal Testimony on Contention 23.
jbf Direct Testimony of Donald J.
Ziegler.and James H.
Johnson,_'Jr. on Behalf of Suffolk County Concerning Contention 23-(Evacuation Shadow Phenomenon) 9 n.3, citing C.
B.
- Flynn, x
- Three Mile Island Telephone Survey, prepared for the U.S. Nu-clear Regulatory Commission (NUREG/CR-1093), Tempe, AZ:.Moun-tain West Research,. October, 1979.
3/
. Attachment 2 to Direct Testimony of Susan C.
Saegert On Behalf ofSuffolk County'Regarding Contention 65, Evacuation Time Estimates, citing.Flynn,' C.B.-(1979).
Three Mile. Island telephone survey:
Preliminary report -on procedure and find-ings.. Prepared for the Nuclear Regulatory Commission, j,
Washington, D.C.
b~
. III.
IN THE ALTERNATIVE, LILCO REQUESTS LEAVE TO FILE REBUTTAL TESTIMONY OF ITS OWN If the Board decides to admit the County's rebuttal testimony, then LILCO requests leave to file its own rebuttal testimony addressing the same issue.
The County has presented a previously unidentified witness (Professor Tyree) and a new analysis after the hearings are over.
Moreover, this new mate-rial alleges that Dr. Sorensen has misinterpreted his own work.
It is only fair, under these circumstances, to permit Dr.
Sorensen, and Dr. Mileti if he can shed light on the issue, to answer the charges leveled after the heascing by the Cole-Tyree testimony.
Also, if there is to be a rebuttal phase, LILCO re-quests the opportunity to depose Dr. Tyree and to conduct such further discovery as may be necessary to understand ful.'y the analysis presented in the Cole-Tyree testimony.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY
(
y BY D07)!N 0
/5!L0 }U)W kmes N. Chris'tman "athy E.
B. McCleskey Jessine A. Monaghan Hunton & Williams P.O.
Box 1535 707 East Main Street Richmond, VA 23219 DATED:
February 6, 1984
LILCO, February 6, 1984 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S ANSWER OPPOSING SUFFOLK COUNTY MOTION FOR LEAVE TO FILE REBUTTAL TESTIMONY ON CONTENTION 23 were served this date upon the following by first-class mail, postage prepaid or, as indicated by an aster-isk, by hand, or, as indicated by two asterisks, by Federal Ex-press:
James A.
Laurenson,*
Secretary of the Commission Chairman U.S.
Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing East-West Tower, Rm. 402A Appeal Board Panel 4350 East-West Hwy.
U.S.
Nuclear Regulatory Bethesda, MD 20814 Commission Washington, D.C.
20555 Dr. Jerry R. Kline*
Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission East-West Tower, Rm. 427 Washington, D.C.
20555 4350 East-West Hwy.
Bethesda, MD 20814 Bernard M.
Bordenick, Esq.*
David A.
Repka, Esq.
Mr. Frederick J.
Shon*
Edwin J.
Reis, Esq.
Atomic Safety and Licensing U.
S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory 7735 Old Georgetown Road Commission (to mailroom)
East-West Tower, Rm. 430 Bethesda, MD 20814 4350 East-West Hwy.
Bethesda, MD 20814
. Eleanor L.
Frucci, Esq.*
Stewart M.
- Glass, Esq.**
Attorney Regional Counsel Atomic Safety and Licensing Federal Emergency Management Board Panel Agency U. 'S. Nuclear Regulatory 26 Federal Plaza, Room 1349 Commission New York, New. York 10278 East-West Tower, North Tower 4350 East-West Highway Stephen B.
- Latham, Esq.**
Bethesda, MD 20814 Twomey, Latham & Shea 33 West Second Street David J. Gilmartin, Esq.
P.O.
Box 398 Attn:
Patricia A. Dempsey, Esq. Riverhead, New York 11901 County Attorney Suffolk County Department Ralph Shapiro, Esq.**
of Law Cammer & Shapiro, P.C.
Veterans Memorial Highway 9 East 40th Street Hauppauge, New York 11787 New York, New York 10016 Herbert H.
Brown, Esq.*
James Dougherty, Esq.*
Lawrence Coe Lanpher, Esq.
3045 Porter Street Christopher McMurray, Esq.
Washington, D.C.
20008
.Kirkpatrick, Lockhart, Hill Christopher & Phillips Howard L.
Blau 8th Floor 217 Newbridge Road 19001M Street, N.W.
Hicksville, New York 11801 Washington, D.C.
20036 Jonathan D.-Feinberg, Esq.
Mr. Marc W. Goldsmith New York State Energy Research Group Department of Public Service 4001'Totten Pond Road Three Rockefeller Plaza Waltham, Massachusetts 02154 Albany, New York 12223 MHB Technical Associates Spence W.
- Perry, Esq.**
1723 Hamilton Avenue Associate General Counsel Suite K Federal' Emergency Management San Jose, California 95125 Agency 500 C Street, S.W.
Mr. Jay Dunkleberger Room 840 New York State Energy Office Washington,.D.C.
20472 Agency Building 2 Empire State Plaza Ms. Nora Bredes Albany, New York 12223 Executive Coordinator Shoreham Opponents' Coalition 195 East Main Street Smithtown, New York 11787 e
l
. Gerald C. Crotty, Esq.**
Ben Wiles, Esq.**
-Counsel to the Governor Assistant Counsel to the Executive Chamber Governor State Capitol Execu tiva Chamber Albany, New York 12224 State Copitol Albany, New York 12224 Fabian G. Palomino, Esq.**
Special Counsel to the Governor Executive Chamber, Rm. 299 State Capitol Albany, New York 12224 O,yp:
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.' James N. Christman
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Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED:
February 6, 1984
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