ML20082J397

Amended Motion to Strike Portions of Util Testimony on Contentions 25,23 & 65.Testimony Irrelevant,Has No Probative Value,Consists of Hearsay & Is Speculative.Certificate of Svc Encl

ML20082J397
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/29/1983
From:	Letsche K KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20082J388	List: ML20082J384 ML20082J397
References
ISSUANCES-OL-3, NUDOCS 8312020123
Download: ML20082J397 (12)

Text

a 1 T UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board

)

In the Matter of )

)

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

)

(Shoreham Nuclear Power Plant, )

Unit 1) )

)

Amended Suffolk County Motion to. Strike Portions of LILCO Testimony on Contentions 25, 23 and 65 Pursuant to 10 CFR @@ 2.730 and 2.743(c), Suffolk County hereby moves to strike the following portions of the LILCO testi-mony on Contentions 23, 25 and 65:

1. Cordaro et al. on Contention 25 (Role Conflict),

Question and Answer 37, pages 39-40.

2. Cordaro et al. on Contention 25 (Role Conflict),

Question and Answer 38, page 41.

3. Cordaro et al. ?n Contention 25 (Role Conflict),

second, third and fourth paragraphs of Answer 65, pages 78-79 (i.e., the portion of the answer labeled "second").

4. Cordaro et al. on Contention 25 (Role Conflict), last portion of Answer 82 (third full paragraph on page 106 i

through first full paragraph on page 108).

5. Cordaro et al. on Contention 23 (Shadow Phenomenon),

Question and Answer 72, pages 135-136.

6. Cordaro et al. on Contention 65 (Evacuation Time Esti-

mates), last portion of Answer 5 (last paragraph of Answer, beginning on page 16 and continuing to Question 6 on page 17).

Cordaro et al. on Contention 25 (Role Conflict),

Questions and Answers 29, 30 and 31 (pages 29-30) and i Attachment 7.

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7. Cordaro et al. on Contention-65 (Evacuation Time Esti-mates), Question and Answer 20, pages 46-47.

The basis for this Motion is that the referenced portions of LILCO testimony are not' relevant or material to the contentions being discussed, and they provide no probative or reliable evi-dence or data upon which the Board could base a finding relevant to Contentions 23, 25 or 65. Each of the referenced portions of the LILCO tescimony is discussed separately below.

1. Cordaro, et al. on Contention 25 (Role Conflict)

Question and Answer 37, pages 39-40 This testimony by LILCO witnesses Dynes and Mileti app 3ars to be a generalized discourse on stories, rumors, anecdotes, moral tales, oral tradition and lore. The discussion is not particularized in that the " emergencies," " individuals," " role obligations," " anecdotes," and " stories" that are referenced are not identified, nor are any of these items related or tied to this proceeding or the issues addressed by Contention 25.

Indeed, Question 37 does not even seek testimony relevant to this proceeding since it merely asks "Why do people seem to accept so readily the notion that ' role conflict' will be a problem in emergencies?" (Emphasis added.) The response does not provide any basis to connect the general discourse by Messrs. Dynes and Mileti to the opinions or conclusions of the County's witnesses on Contention 25, nor does it allege that any of the evidence relied upon by the County is " rumor" or " lore." The discussion is not probative of the issue presented in Contention 25 -- that

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-is, whether.the LILCO Plan adequately takes role conflict into account. Thus, the testimony is irrelevant to Contention 25 and has no-probative value and should be stricken.

2. Cordaro, et al. on Contention 25 (Role Conflict)

Question and Answer 38, page 41 Question 38 asks the very general question "Do most of the people who have studied disasters agree with Suffolk County, or with you?" on whether role conflict "could be a real problem in a radiological emergency." The responses by LILCO witnesses Mileti and Dynes are equally generalized and not probative on Contention 25.

Dr. Mileti begins his response by noting that he only knows the opinions of "some disaster researchers," which he subsequent-ly identifies as being some attendees at one session of a confer-ence held some time-last summer. He then characterizes what he calls the " consensus" of those attendees. First, this response does not answer the question asked; even if the question seeks l probative evidence, the answer does not provide it. Second, the 1

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response is so general and undefined that it has no probative j value whatsoever. The session " attendees" are not identified; l

j. the substantive content of the " session" is not identified ( i . e .,,

what was the context and content of the " role conflict" that was discussed?); the " consensus" is not defined; there is no basis for Mileti's assertion that role conflict " implies" role abandon-ment for the individuals comprising the " consensus"; "a real issue" is not defined; and " human-made emergencies" are not L.

i defined. Third, the statement is gross hearsay, and no basis is provided to support its reliability. Dr. Mileti's answer is not probative, not material, and not reliable, and should be stricken.

Dr. Dynes' answer is similarly not responsive to the ques-tion, is generalized and is non-probative. The " scholars,"

" researchers" and " emergencies" discussed in the first three sentences of his response are not defined, described, or identi-fied. The final sentence of his response: " Researchers who have had extensive experience in observing emergency behavior (Quarentelli, Dynes, and Drabek) have indicated that role con-flict is a non-problem," is so generalized that it has no proba-tive value. The answer is not related to the issue presented in Contention 25 -- that is, whether the LILCO Plan adequately addresses the problem of role conflict, nor is his discussion even related to radiological emergencies.

3.- Cordaro, et al. on Contention 25 (Role Conflict),

second, third and fourth paragraphs of Answer 65, (i.e., the portion of the response labeled "second")-

pages 78-79 This testimony by LILCO witness Mileti is practically iden-tical to that discussed in paragraph 1 above, with an additional discussion of an " example" of a " myth" involving a man arrested for " looting" his own house. This testimony has no relevance to Contention 25 and has no probative value for the reasons set forth in paragraph 1 above.

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4. Cordaro et al. on Contention 25 (Role Conflict), last portion of Answer 82 (third full paragraph on page 106 through first full paragraph on page 108).

LILCO witnesses Cordaro and Weismantle assert'that some

- LILCO employees have gone "beyond the call of duty" in performing certain tasks and that this " constitutes empirical evidence" that LILCO employees are capable of performing in emergencies. This assertion is neither relevant nor probative of the issues raised in Contention 25. Even if the referenced LILCO employees have performed as described in the LILCO Testimony, there is no basis for asserting that the LILCO employees who will be members of LERO will perform the duties assigned to them in the event of an' emergency at Shoreham. The described actions by LILCO employees

~ did not involve the kind of role conflict that would be experi-enced in a radiological emergency. The safety and welfare of the families of the LILCO employees were not at risk in the inciden'ts described, and the LILCO employees were therefore not confronted with choosing between caring for their families or responding to the emergency at hand. Indeed, most of the incidents described in the LILCO Testimony did not require the LILCO employee to risk his car her own safety. Thus, while admirable, such responses are not probative of the role conflict concerns raised by Suffolk

- County.in this proceeding and do not constitute " empirical evi-dence"'that LILCO emp'loyees would respond as required under the LILCO Plan to an emergency at Shoreham. Further, there is no

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I evidence that the LILCO employees who have performed the rescue I

tasks described by LILCO are even members of LERO. This testi-many has no probative value. i

5. Cordaro et al. on Contention 23 (Shadow Phenomenon),

Question and Answer 72, pages 135-136).

LILCO witnesses Cordaro and Weismantle assert that the Intervenors in this proceeding have put forth "the most deroga-I tory-possible picture of the people of Long Island, alleging that the public will be panicky, hysterical, irrational, selfish, accident prone, larcenous, and defiant of law and authority."

This assertion is not relevant, material or probative and should

'be stricken. The statement is also false. At no time-has Suffolk County characterized the people of Long Island as alleged by LILCO witnesses. There is no factual basis for the witnesses' assertion, nor is any asserted in the LILCO testimony. The words used to describe the people of Long Island in the LILCO testimony are LILCO's; they are not the words of the County. The County takee sharp exception to this gross mischaracterization of its position. This LILCO testimony, which is, in essence, a personal accusation and deliberate mischaracterization of the County's position,-is inappropriate, and should be stricken.

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6. Cordaro et al. on Contention 65 (Evacuation Time Esti-mates), last portion of Answer 5 (last paragraph of Answer, beginning on page 16 and continuing to Question 6 on page 17).

- Cordaro et al. on Contention 25 (Role Conflict),

Questions and Answers 29, 30 and 31 (pages 29-30) and Attachment 7.

LILCO's witnesses state that LILCO's commitment of resources

- to emergency planning was only made necessary by Suffolk County's refusal "to allow its resources to be used for radiological emer-

, gency planning." The paragraph goes on to state that in the opinion of LILCO's witnesses, Suffolk County police officers and other County personnel will "probably" be available to assist in the event of a radiological emergency at Shoreham. This testi-mony is irrelevant to this proceeding.

As stated in the Board's June 10, 1983 Order Limiting Scope of Submissions, this litigation is to focus upon the so-called LILCO Transition Plan. That Plan calls for LILCO to assume the command and control of a Shoreham emergency and to provide all l - necessary offsite response through "LERO," which is composed i

j almost entirely of LILCO personnel. No Suffolk County agencies i or personnel belong to LERO; nor, pursuant to Resolutions 456-

- 1982 and 111-1983, will they be made available to assist LILCO in implementing its Plan. Indeed, it was precisely because the County and other governmental agencies have stated they will not participate in emergency planning for Shoreham that the Board narrowed the scope of this litigation to the LILCO Transition Plan. Thus, the only relevant question before the Board is i

t - e t - t ..e a , , ,1 - e ,,,-,--a y W , , ?nv e -l-,- - -- - , -- h r

_ g-whether LILCO can implement that Plan. Furthermore, LILCO states that it can implement that Plan and that it can do so without County involvement.

Testimony attacking the County for determining that it is impossible to protect the people of Suffolk County in the event of an emergency at Shoreham is not relevant to the admitted con-tentions in this proceeding. Similarly, speculation by LILCO's witnesses about whether County personnel will or will not obey the law is equally irrelevant. LILCO has devised a Plan which it' asserts can be implemented by LILCO and the others relied upon in the Plan. Therefore,-the Board should restrict the testimony in this proceeding to the issue of whether LILCO can and will be capable of implementing the Plan as written, and bar testimony speculating on whether other individuals may or may not be avail-able to assist.

7. Cordaro et al. on Contention 65 (Evacuation Time Estimates), Question and Answer 20), pages 46-47.

The LILCO witnesses address how the Shoreham time estimates compare with evacuation time estimates for other facilities.

This testimony, including Attachment 7, is irrelevant to the issue of whether LILCO's evacuation time estimates for Shoreham are accurate and reliable. There is no admitted contention in this proceeding that deals with time estimates, or evacuation, from other plants. Nor is there any evidence before this Board that estimates from any other plant have any relationship to the issues addressed in the Contentions at issue in this case.

I y k er r/ ,- , g , .- -~ g ,- q -

l 9-Witness Lieberman's answer notes that the time estimates for Shoreham are " comparable" to time estimates for other plants.

However, neither this broad conclusory statement nor Attachment 7 explains how any of the time estimates for other plants were derived, or how such time estimates in their methodology or underlying assumptions relate to the Shoreham plant, the Long Island area, or the contentions in this proceeding. If this irrelevant testimony is not stricken, the County will be com-pelled to examine LILCO's witnesses on the details of the com-parisons addressed in Question and Answer 20 and Attachment 7, the validity of such comparisons, and their pertinence, if any, to the issues raised in Contentions 65 and 23.

Respectfully submitted, David J. Gilmartin, Esq.

Patricia A. Dempsey, Esq.

Suffolk County Department of Law H. Lee Dennison Building Hauppuage, New York 11788 I / l

/1 , QWAMM Lawrence C. Lanpher, Esq.

Karla J. Letsche, Esq.

Christopher M. McMurray, Esq.

Michael S. Miller, Esq.

KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, NW, Suite 800 Washington, DC 20036 Attorneys for Suffolk County 1

Dated: November 29, 1983

UNITED STATLS OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atcmic Safety and Licensing Board

)

In the Matter of )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of Amended Suffolk County Motion to Strike Portions of LILCO Testimony on Contentions 25, 23 and 65 have been sent to the following this 29th day of November, 1983 by U.S. mail, first class, except as otherwise noted.

James A. Laurenson , Chairman Ralph Shapiro, Esq.

Atomic Safety and Licensing Board Cammer and Shapiro U.S. Nuclear Regulatory Commission 9 East 40th Street hashington, D.C. 20555 New York, New York 10016

• Dr. Jerry R. Kline Howard L. Blau, Esq.

, Atomic Satety and Licensing Board 217 Newbridge Road U.S. Nuclear Regulatory Commission Hicksville, New York 11801 hashington, D.C. 20555 ,,

, W. Taylor Reveley, III, Esq.

Mr. Frederick J. Shon Hunton & Williams Atomic Safety and Licensing Board P.O. Box 1535 U.S. Nuclear Regulatory Commissien 707 East Main Street hashington, D.C. 20555 Richmond, Virginia 23212 Edward M. Barrett, Esq.

General Counsel Mr. Jay Dunkleberger Long Island Lighting Company New York State Energy Office 250 Old Country Road Agency Building 2 Mineola, New York 11501 Empire State Plaza Albany, New York 12223 Mr. Brian McCaffrey Long Island Lighting Company Stephen B. Latham, Esq.

175 East Old Country Road Twomey, Latham & Shea Hicksville, New York 11801 33 West Second Street Riverhead, New York 11901 By Hand By Telecopier and Federal Express

Nora Bredes Docketing and Service Section Executire Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.

195 East Main Street Washington, D.C. 20555 Smithtown,.New York 11787 Hon. Peter Cohalan M' arc W. Goldsmith Suffolk County Executive Energy Research Group, Inc. H. Lee Cennison Building 400-1 Totten Pond Road Veterans Memorial Highway Waltham, Massachusetts 02154 Hauppauge, New York 11788 MHB Technical Associates Eleanor L. Frucci, Esq.

1723 Hamilton Avenue Atomic Safety and Licensing Suite K Board Panel San Jose, California 95125 U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555 Joel Blau, Esq.

New York Public Service Comm. Ezra I. Bialik, Esq.

The Governor Nelson A. Rockefeller Assistant Attorney General Building Environmental Protection Bur.

Empire State Plaza New York State Dept. of Law Albany, New York 12223 2 World Trade Center New York, New York 10047 David J. Gilmartin, Esq.

Suffolk County Attorney Atomic Safety and Licensing H. Lee Dennison Building Appeal Board Veterans Memorial Highway U.S. Nuclear Regulatory Comm.

Hauppauge, New York 11788 Washington, D.C. 20555 Atomic Safety and Licensing Jonathan D. Feinberg, Esq.

Board Panel Staff Counsel, New York State U.S. Nuclear Regulatory Commission Public Service Commission Washington, D.C. 20555 3 Rockefeller Plaza Albany, New York 12223

• Bernard M. Bordenick, Esq.

David A. Repka, Esq. Stewart M. Glass, Esq.

U.S. Nuclear Regulatory Commission Regional Counsel hashington, D.C. 20555 Federal Emergency Management Agency Stuart Diamond 26 Federal Plaza, Room 1349 Environment / Energy Writer New York, New York 10278 NEWSCAY Long Island, New York 11747 James B. Dougherty, Esq.

3045 Porter Street, N.h.

Washington, D.C. 20008 Spence Perry, Esq.

Associate General Counsel Federal Emergency Management Agency hashington, D.C. 20472 Mr. Jeff Smith Shoreham Nuclear Power Station P.O. Box 618

, North Country Road Wading River, New York 11792 A>- ~.

Karla/ Jl.~ Letsche V~"

KIRKPATRICK, LOC EART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W., Suite 800 Washington, D.C. 20036 4

CATED: November 29, 1983 i \

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