ML20084H235
| ML20084H235 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/03/1984 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| OL-3, NUDOCS 8405070492 | |
| Download: ML20084H235 (19) | |
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e RELATED CORRESPONDENCE LILCO, May 3, 1984 00CKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'84 MhY -7 A10:53 Before the Atomic Safety and Licensing Board ~
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In the Matter of )
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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3
) (Emergency Planning (Shoreham Nuclear Power Station, ) Proceeding)
Unit 1) )
LILCO's Motion to Strike
, Portions of Suffolk County's Testimony on Contentions 11 and 15 Suffolk County, on March 30, 1984, filed four pieces of written testimony on Contentions 11 and 15 (conflict of inter-est and credibility):
- 1. Testimony of Arthur H. Purcell, David J.
Olson, Michael Lipsky and Susan C. Saegert Regarding Contentions 11 and 15;
- 2. Direct Testimony of Dr. George J. Jeffers and Anthony R. Rossi on Behalf of Suffolk County Regarding Contention 15.C;
- 3. Direct Testimony of Robert W. Petrilak on Behalf of Suffolk County'Regarding Conten-tion 15.C; and
- 4. Direct Testimony of Nick J. Muto and J.
l Thomas Smith on Behalf of'Suffolk County Regarding Contention 15.C.
Also filed was a fifth piece:
- 5. Testimony of Stephen Cole on Behalf of o
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Suffolk County Concerning Emergency Plan-ning Contention 15.
The schedule for filing motions to strike was set by the Board's granting of the Joint LILCO/Suffolk County Motion for Deferral of Motions to Strike Testimony on Contentions 11 and l 1
1 15, dated April 5, 1984, and by LILCO's service of supplemental I testimony or April 26, 1984. For the reasons set out below, LILCO moves to strike certain portions of Suffolk County's ,
I written testimony pursuant to 10 C.F.R. Section 2.743(c). ;
I. Testimony of Arthur H. Purcell, David J.
Olson, Michael Lipsky and Susan Saegert Regarding Contentions 11 and 15 On pages 10-11: The answer beginning with
"(Purcell, Saegert) The Three Mile Island" on line 3 of page 10 and ending with'"that TMI-II was lost" on line 16 of page 11, in-cluding footnotes 2 and 3 This discusses the behavior of GPU, the utility that oper-ated Three Mile Island 2. The County witnesses' reasoning is that because GPU displayed " behavior that suggests the utility was more concerned with its image and organizational mainte-nance than with objectively presenting information about the severity of the accident," LILCO personnel in LERO might do the same if there were an accident at Shoreham.
We believe this testimony is irrelevant, because the chain:
of reasoning is so tenuous that the evidence (that GPU behaved inappropriately in 1979) simply does not-lead to the conclusion l
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. that the County witnesses would have the Board draw (that LERO officers would behave inappropriately in an emergency at Shoreham).
To accept this reasoning one first has to accept the Coun-ty witnesses' opinion that GPU acted as it did because of a
" conflict of interest." This in itself requires a certain leap of faith. The two instances that the testimony claims show a conflict of interest are (1) a public relations director being appointed spokesman and then expressing anger at suggestions that the utility could not cope with the accident (Purcell et al. testimony 10) and (2) the GPU chairman, two months after the accident, underestimating the time that TMI-2 would be out of service (id. 11). It is hard to see how either of these in-cidents shows some sort of " conflict" that utilities may expe-rience but governments will not; defensiveness about~one's ability to cope with an emergency, for example, has nothing to do with whether a utility rather than a government is involved.
Likewise an inaccurate estimate (three years) of how long TMI would be out of service has only the most tenuous relation, if any, to " conflict of interest."
Assuming, however, that the behavior of these two GPU of-ficials in 1979 is evidence that they felt a conflict of inter-est of the type addressed by Contention 11, one must then go a step further and conclude that LERO officials would experience a similar conflict, and succumb to it, during an accident at
Shoreham, notwithstanding all the differences between GPU in 1979 and LILCO in the future. (For example, GPU was not re-sponsible for offsite emergency planning as LILCO is.)
All things considered, the evidence of what two GPU indi-viduals did in 1979 is simply not probative of what LERO might do in an emergency at Shareham. Rule 401 of the Federal Rules of Evidence defines " relevant evidence." As the notes of the Advisory Committee on the proposed rules point out:
Problems of relevancy call for an an-swer to the question whether an item of ev-idence, when tested by the processes of legal reasoning, possesses sufficient pro-bative value to justify receiving it in ev-idence.
Notes of Advisory Committee on Proposed Rules, Rule 401, Feder-al Rules of Evidence 216 (West 1983). Although Suffolk County will probably argue that this goes to weight rather than admis-sibility, we believe that in this case the chain of logic is so-weak that the evidence is-inadmissible.
On pages 11-12: The answer beginning with "(All) The term ' mind set'" on line 17 of page 11 and ending with "un-workable emergency responses" in line 9 on page 12 This paragraph addresses " institutional biases" in the nu-clear power industry (Purcell et al. testimony:11), says that utility employees are "too close to the source of the problem" (id. 12), and says that familiarity with nuclear power systems-
leads to biases and mind sets (id.). The paragraph appears to have little or nothing to do with the " financial and institu-tional interests" of a utility addressed by Contention 11. It seems to address instead the quite different notion that people l who are knowledgeable about nuclear plants lack objectivity.
Accordingly, it is outside the scope of the contention and l
therefore irrelevant.
On page 14: The second paragraph on page 14, beginning with " Fourth" and ending with "regarding Training" This paragraph says that LILCO personnel lack objectivity and independence because of their " inadequate training." This belongs in the testimony on the " training" issues and is out-side the scope of Contention 11. It should therefore be struck as irrelevant. Also, i f, as the testimony says, the subject "is discussed more fully" in the County's training testimony, then it is " unduly repetitious" here and therefore inadmissi-ble. 10 C.F.R. $ 2.743(c). It is, in the words of Federal Rule of Evidence 403, " needless presentation of cumulative evi-donce."
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. On page 21 and in the Attachments: Foot-note 5 on page 21, beginning with "This desire" and ending with " command and con-trol positions" and Attachment 4 This footnote says that recent reductions in the LILCO work force will cause job insecurity and resentment that in turn may " diminish further the capacity for objectivity of the LILCO employees in command and control positions." Attachment 4 consists of newspaper articles about the effects of the ter-minations.
In the first place, the effect postulated by the footnote is that (1) fear of being fired and (2) resentment because oth-ers have been fired will diminish objectivity. This is a dif-forent issue from the effect of devotion to LILCO's " financial and institutional interests" addressed in Contention 11. The testimony is therefore outside the scope of the contention.
In the second place, as with the testimony about the two GPU officials, addressed above, footnote 5 ic a case in which the probative value of the testimony is so slight that it should be struck as irrelevant. The effects of recent reduc-tions in the work force, as reported in newspaper stories about which the witnesses evidently have no personal knowledge, have so little to do with the workability of an emergency plan that may have to be activated at any time over the 40-year life of the plant that it simply should'not be admitted.
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On pages 26-27: The paragraph beginning in line 10 of page 26 with " Third" and ending in line 17 of page 27 with "short-term disruption" This paragraph says that. emergency decisionmakers are more likely to recommend sheltering than evacuation because shel-tering is simpler and requires less disruption of the communi-ty. So far as we can tell, this point has nothing to do with LILCO's " financial and institutional interests"; any deci-sionmaker would prefer a less disruptive alternative, other things being equal. The paragraph is therefore beyond the scope of Contention 11 and should be struck as irrelevant.
On page 28: Footnote 6, beginning with "For instance" and ending with "LERO" This footnote says that a LERO Director who is a LILCO em-ployee "is less likely to critically challenge the wisdom of recommendations emanating from LILCO personnel at the plant."'
This is irrelevant to the " financial and institutional inter-i ents" raised by Contention 11 (further identified as an incen--
tive to minimize public perceptions of danger). Moreover,-it presumes a fact not in evidence, that the onsite recommenda-tions need to be " critically challenged." Finally, it attempts to reopen the question of the onsite emergency plan; the'recom-mendations.from onsite personnel were a " Phase I" issue and may not be litigated now.
On pages 32-33: The three sentences be-ginning with "That is" in line 3 of page 32 and footnotes 8 and 9, ending on page 33 This testimony goes to the quality of the paper plan, re-gardless of who writes or implements it. It has nothing to do with how the public perceives the author of the plan, which is the subject of Contention 15, as can be seen by contrasting it with the immediately following testimony that begins on page 33.
On pages 35-36 and in the Attachments:
From "In addition" in line 9 on page 35 through "more negative" in line 7 on page 36 and Attachment 5 These portions of the testimony and the newspaper clip-pings in Attachment 5 refer to the Marburger Commission find-ings. This material is inadmissible for the following reasons.
First, to the extent the testimony attempts to establish the contents of the Marburger Commission report, it is inadmis-sible under the "best evidence" rule. The County attempts to prove the contents of a document but does not submit the docu-ment, which is readily available, as evidence.
Second, the Marburger Commission report has so little pro-bative value for the issue of LILCO's credibility with the pub-
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lic that it is properly denied-admission as' irrelevant. The report was the product of a number of people, few of'whom seem to have agreed fully on anything. It is not a consensus I
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document,1/ and, as the various views of the individual commissioners reveal, the conclusions that can be drawn from the report are multiple and varied.
Moreover, since the County's witnesses apparently have no direct personal knowledge of the Marburger Commission delibera-tions, the results cannot be submitted to cross-examination.
The proffered testimony and Attachment 5 therefore run afoul of the hearsay rule, despite the principle that hearsay is ordi-narily admissible in proceedings such as this. A similar issue was raised but left undecided in the Clinton proceeding:
In the circumstances of this case, however, there is no compelling need to reach the difficult question of the extent to which an expert witness in an administrative pro-ceeding may make reference to articles in newspapers and other periodicals without running afoul of the hearsay rule.
Illinois Power Co. (Clinton Power Station, Unit Nos. 1 & 2),
ALAB-340, 4 NRC 27, 31 (1976) (footnote omitted). In this case, given the peculiarly multifarious nature of the Marburger findings, we believe the evidence is inadmissible.
1/ The cover letter from the chairman of the Commission says this:
The tardiness of the report may be attributed to the complexity of these is-sues, to the diversity of views among the Panel members, and to the difficult logis-tics of assembling the Panel members as often as necessary to achieve, if not con--
sensus, at least the mutual recognition that further efforts to achieve consensus would bring diminishing returns, l
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On pages 37-38 and in the Attachments:
The words "St. Andrew's School Board" in the third line from the bottom on page 37; the words "and the Board of Trustees of the New Interdisciplinary School" in line 5 on page 38; and the letter and resolu-tion from St. Andrew's and two letters from the New Interdisciplinary School in Attach-ment 6 These schools are not in the Shoreham ten-mile EPZ. How they view LILCO is therefore irrelevant to the adequacy of the emergency plan.
On pages 37-38: The sentence at the bottom of page 37 beginning with "Each" through the end of the paragraph at the top of page 38, ending with "Shoreham emergency" This part of the testimony recites.that various school board resolutions identify " problems" with LILCO's Transition Plan and conclude that the plan is inadequate or is not "real-istic or workable." This testimony goes to the issue of wheth-er the school boards think that the plan will work, prior to any NRC decision on whether it will work. The theory is that certain school boards' prejudgments about the adequacy of the plan show that school officials would not follow protective ac-tion recommendations under the plan, once the plan was approved by the NRC. The testimony has so little probative value that-it should be struck as irrelevant.
On pages 40-44 and in the Attachments:
All of pages 40, 41, 42, and 43 and page 44 from the top through the words " manage an emergency" in line 6; Attachments 7-11 These portions of the testimony, including Attachments 7-11, are about recent press reports of (1) problems with the emergency diesel generators, (2) the delay and increased costs of Shoreham, (3) allegations of mismanagement made by the staff of the New York Public Service Commission and other agencies, and (4) a reported LILCO policy of not responding to press re-ports. Attachments 7-11 are newspaper clippings on these sub-jects. It is true that on pages 42-44 the testimony attempts to link perceptions about managemont competence to perceptions of credibility in an emergency, but on balance the relevance of such things as the diesel generator problems is so slight that the testimony should be ruled inedmissible.
On page 44: The sentence beginning in line 1 of page 44 with " Third" and ending with
" standards of competence" in line 3 The statement is that " perceptions about LILCO's incompe-tence will also lead to suspicions that LERO personnel have not been trained to acceptable standards of competence." ' This is irrelevant. First, Contention 15 gives no indication that it is about training. Second, once again the chain of cause and effect the testimony postulates is so tenuous that the testimo-ny is not probative. Here the County has inserted " training"
~12-into the chain: newspaper articles lead to public perceptions of incompetence, which leau to " suspicions" of poor training,
- which lead to people's ignoring protective action recommenda-tions in a radiological emergency.
On page 44: The sentence starting on line 3 with "Thus any" and ending with " emergency" in line 6 This sentence is Thus any mistakes made by individual LERO personnel will confirm the existing presupposition that LERO as a whole is in-competent to manage an emergency.
! This goes to the issue of the effects of " mistakes" by individ-ual LERO personnel during an emergency and is outside the scope of Contention 15.
On pages 51-52: The paragraph beginning l
' with " Responding" at the bottom of page 51 and ending with "for LILCO" on line 13 of page 52 This paragraph reads as follows:
Responding to an emergency affecting a community, particularly a radiological emergency, fundamentally requires the use of authority in the command and control of movements of population' segments to areas I of safety. Government is the only entity
- in our society that regularly exercises-au-thority in matters of public safety. Only government officials, typically, can get people out of their homes, order people about, command priority service, and so on.
The exercise of authority means not only issuing sensible orders, but also being able to have confidence that those orders
will be accepted. They will not be accept-ed unless the entity which issues them has been granted the authority to do so and/or is perceived as legitimate and credible by the public and members of organizations which are expected to follow orders. This will not be the case for LILCO.
This paragraph addresses the alleged lack of legal authority raised by Contentions 1-10. It is outside the scope of Conten-tion 15 and therefore irrelevant.
On pages 52-60: The question on page 52 beginning with "Q. Are there any other rea-sons" through the answer on pages 58-60 ending with "their areas of concern and expertise" in line 2 of page 60 This testimony is outside the scope of Contention 15.
Upon close examination, it is apparent that this is Suffolk County's testimony on Contentions 12 and 13, both of which were denied admission by the Board. Special Prehearing Conference Order, slip op. 5 (Aug. 19, 1983).
Among other things, Contention 12 alleged that LILCO per-sonnel would not able to exercise effective command and control because, among other things, they would not be familiar with the " legal and jurisdictional limitations" of "other entitics who may assist or participate in response to a Shoreham emer-gency." The contention went on to say that LILCO personnel -
lack familiarity with " conditions in Suffolk County" and that LILCO personnel do not have training and experience that would give such familiarity. The contention added that "LILCO
. -14 command and control personnel will not be aware of how the var-ious entities, institutions, organizations and the population operate or interact with each other on a day-to-day basis or in an emergency situation."
Contention 13 alleged that LILCO's attempt to exercise au-thority over non-LILCO support organizations " conflicts with the normal chains of command, assignment of responsibilities, and internal operating procedures according to which these or-ganizations function." The contention said that there is no assurance that the procedures set forth in the plan will be followed by non-LILCO organizations, "particularly in the event that the support organization supervisors or the individual emergency workers decide that a different procedure would be better or more appropriate in a given situation."
In the Board's August 19, 1983, Special Prehearing Confer-ence Order, it admitted Contention 15, but only the main' con-tention. The subparts, such as 15,A, are " subsumed within.the main contention and may be treated as reasons in support there-of." By contrast, Suffolk County has used 15.A as a means of resurrecting Contentions 12 and 13. ,
To put it most succinctly, Contention 15 alleges that the
- public will not trust'LILCO's advice, and that members of the Red Cross and other organizations, being members of the public, will also not trust LILCO's advice, and that this will be an additional problem over and above that of the public's l
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. noncompliance. What the tentimony cited above says, on the other hand, is that LILCO personnel will lack intimate, every-day working relationships with support organizations, and that this will hinder a cooperative working relationship in an emer-gency. In short, the testimony is outside the scope of Conten-tion 15 and irrelevant to it. . s a.
In addition, the detailed testimony (from line 12 on page 53 through line 18 on page 57) about the qualifications of a handful of individual LERO workers is the sort of minutiae that are inadmissible under either the Waterford principle or the principle that the probative value is so slight as to be out-weighed by the burden of admitting and hearing it.
On page 58: The words "and fire depart-ments" in lines 10-11 on page 58 The LILCO plan does not rely on fire departments, so the reference to fire departments is irrelevant, notwithstanding the mention of fire organizations in contention subpart 15.A.
On page 59: The words "and the Suffolk County Police Department" in the last two lines of page 59 Since the plan does not depend on the police, the fact that the Suffolk County Police Department does not believe the plan to be workable is irrelevant, notwithstanding the mention of " local law enforcement agencies" in contention subpart 15.A.
On pages 65-66: The entire paragraph beginning with "Second" on page 65 and ending with " workers will be met" in the middle of page 66 This paragraph says that the public's refusal to obey LILCO employees (apparently this refers to traffic guides) will be increased by the employees' inability to answer questions.
The point, that traffic guides will allegedly not be able to provide information, is outside the scope of Contention 15.
On page 66: The sentence beginning "The inability of LILCO's field workers" in line 10 on page 66 and ending with "will be met" on line 13 on page 66 This should be struck for the reason given immediately above.
On pages 68-69: The two paragraphs, be-ginning with "Second, a critical " fact" in line 4 on page 68 and ending with "by-the public" in line 7 on page 69 This says the LILCO traffic guides and security personnel have not had on-the-job training and that the public will know it. This is testimony about the training program and is there-fore outside the scope of Contention 15.
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On pages 69-70: The paragraph beginning with " Third" in line 8 on page 69 and ending with "is most essential" in line 6 on page 70 This testimony addresses the alleged lack of " potential for regular feedback and self-correction that is intrinsic to governmental bureaucracies." This is beyond the scope of Con-tention 15, and the mere mention that the "public will know" about this alleged shortcoming does not cure the inadmissibility.
On pages 75-76: all of page 75 (except the end of footnote 25 at the bottom) and the first five lines of page 76 This testimony says that the LILCO employees assigned to rumor control lack experience, knowledge, and abilities needed to perform those functions. This has to do with training or pesonnel selection, not with LILCO's credibility with the pub-lic. The statements in the testimony that for these reasons they would not be able to " overcome" the problem of LILCO's lack of credibility does not bring the testimony within the scope of Contention 15.
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On page 79: The paragraph beginning with
"(Saegert) The public" in line 4 on page 79 and ending with " read such material" near the bottom of page 79 This paragraph (notwithstanding the mention of the word
" disregard") says that people will not read the brochure, not that they will read it and not believe it. It is thus outside ths scope of Contention 15. Moreover, the testimony that many people around Indian Point said they "had not received" a bro-chure distributed by Consolidated Edison has so little bearing on the question whether people around Shoreham will believe-the LILCO brochure that it should be struck as irrelevant.
II. Testimony of Stephen Cole on Behalf of Suffolk
, County Concerning Emergency Planning Conten-tion 15 On page 14: The first paragraph, beginning with "Recent research" and ending with "the Shoreham plant" The recital of various matters such as cost overruns for Shoreham have so little probative value for the issue of wheth-er the public would follow LERO's protective action recommenda-tions in an emergency that this testimony should be struck as irrelevant.
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> l III. Direct Testimony of Robert W. Petrilak on Behalf of Suffolk County Regarding Conten-tion 15.C On page 2: The sentence "LILCO does not have the authority to direct the actions that would be expected of school districts" on page 2, lines 9-10 The sentence, "LILCO does not have the authority to direct the actions that would be expected of school districts" goes to an issue of " legal authority" (like Contentions 1-10) and not to " credibility." It should be struck as irrelevant, since it is outside the scope of Contention 15.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY BY , 4,
'Jasie s N . Clgfisthn Hunton & Williams P.O. Box 1535 707 East Main Street Richmond, VA 23219 DATED: May 3, 1984
2 LILCO, May 3, 1984 1
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 MOTION TO STRIKE PORTIONS OF SUFFOLK COUNTY'S TESTIMONY ON CONTENTIONS 11 AND 15 were served this date upon the following by first-class mail, postage prepaid or, as indicated by an asterisk, by Federal Ex-press, or, as indicated by two asterisks, by hand:
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.
l Mr. Frederick J. Shon** Edwin J. Reis, Esq.
l Atomic Safety and Licensing U. S. Nuclear Regulatory l Board Commission l U.S. Nuclear Regulatory 7735 Old Georgetown Road Commission (to mailroom) l East-West Tower, Rm. 430 Bethesda, MD 20814 l 4350 East-West Hwy.
l Bethesda, MD 20814
2 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 Fabian G. Palomino, Esq.* P.O. Box 398 Special Counsel to the Riverhead, New York 11901 Governor Executive Chamber Ralph Shapiro, Esq.*
Room 229 Cammer & Shapiro, P.C.
State Capitol 9 East 40th Street Albany, New York 12224 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 Jonathan D. Feinberg, Esq.
8th Floor New York State Department of 1900 M Street, N.W. Public Service, Staff Counsel Washington, D.C. 20036 Three Empire State Plaza Albany, New York 12223 Mr. Marc W. Goldsmith Energy Research Group Spence W. Perry, Esq.
4001 Totten Pond Road Associate General Counsel Waltham, Maseachusetts 02154 Federal Emergency Management Agency MHB Technical Associates 500 C Street, S.W.
1723 Hamilton Avenue Room 840 Suite K Washington, D.C. 20472 San Jose, California 95125 Ms. Nora Bredes Mr. Jay Dunkleberger Executive Coordinator New York State Energy Offica Shoreham Opponents' Coalition Agency Building 2 195 East Main Street l Empire State Plaza Smithtown, New York 11787 I
Albany, New York 12223 l
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S Gerald C. Crotty, Esq. Martin Bradley Ashare, Esq.
Counsel to the Governor Suffolk County Attorney Executive Chamber H. Lee Dennison Building State Capitol Veterans Memorial Highway Albany, New York 12224 Hauppauge, New York 11788 s k _s James N. CpistmAn g 'p Hunton & Williams ,
707 East Main Street P.O. Box 1535 .
Richmond, Virginia 23212 DATED: May 3, 1984
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