ML20087G880

Memorandum in Opposition to Lilco 840309 Motion to Strike Portions of Testimony of Saegert on Contention 73.A. Certificate of Svc Encl.Related Correspondence

ML20087G880
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	03/16/1984
From:	Letsche K KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY
To:
Shared Package
ML20087G767	List: ML20087G762 ML20087G772 ML20087G778 ML20087G795 ML20087G813 ML20087G818 ML20087G833 ML20087G863 ML20087G880
References
OL-3, NUDOCS 8403200159
Download: ML20087G880 (9)

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RELAiED C0fniESF0HDENCE, 000KETED UltiRC UNITED STATES OF AMERIC34 IIAR 19 Al0:52 NUCLEAR REGULATORY COMMISSION OFTKT Gr SEcgpe 00CMLIlm;& SF n Before the Atomic Safety and LicensintABoard'

)

In the Matter of -)

)

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

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

)

SUFFOLK COUNTY MEMORANDUM Nx s

IN OPSOSITION TO LILCO'S MOTION TO STRIKE PORTIONS OF THE TESTIMONY OF SUSAN SAEGER'r ON CONTENTION 73. A In its Motion to Strike Portions of the Testimony of Susan Saegert Concerning Emergency Planning Contention 73.A, dated March 9, 1984 (hereinafter, " Motion"), LILCO seeks to strike two portions of the Direct Testimony of Susan Saegert on Behalf of Suffolk County Concerning Emergency Planning Contention 73.A --

Evacuation of the Homebound, dated March 2, 1984 ( 'inafter, "Saegert testimony"). For the reasons set forth below, LILCO's motion should be-denied.

The first portion of the Saegert testimony which LILCO seeks to strike is on page 5 of the testimony. It consists of the underlined language in the following paragraph:

Moreover, as I will discuss in more detail in my testimony on Contentions 15 and 16, people are unlikely to. read material they N 159 840316 PDR ADOCK 05000322 9 PDR ._

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receive in the mail, if they do not perceive it as being immediately important to them, or if they view the sender's credibility as beIng low. Both of these perceptions are likely with respect to information sent by LILCO.

Therefore, it is likely that many handicapped residents of the EPZ would not return post-cards becauss they would never read either the postcard or the accompanying letter or brochure.

LILCO moves to strike the three lines of testimony because "there is no mention of LILCO's alleged lack of credibility in Contention 73.A. Moreover, LILCO's credibility is already the' subject of Contention 15." Motion at 2.

LILCO's observation that Contention 15 concerns LILCO's lack of credibility is true. Indeed, Professor Saegert noted that fact herself in the portion of the paragraph which LILCO does not seek to strike. However, the mere fact that the word

" credibility" is used in a paragraph contained in testimony on Contention 73.A does not mean that the' sentence containing that word is beyond the scopt of Contention 73.A and should be stricken.

2 LILCO's objection is totally without basis.

The referenced portion of Professor Saegert's testimony addresses subpart 1 of Contention 73.A, which alleges that "many people who will require-assistance will not return the postcards to LILCO." Professor Saegert, in the paragraph at issue,. dis-cusses two reasons-why people are unlikely to read the material they receive from LILCO in the~ mail, and one of them happens to be related to the public's view'of the credibility of the sender-of that information.- The clause and sentence which LILCO' seeks L _

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to strike are clearly relevant to subpart 1 of Contention 73.A and neither the fact that they have the word " credibility" in them, or the fact that Professor Saegert will discuss the issue of credibility.in more detail in her testimony on contention 15 constitutes a basis for striking those portions of her testimony on Contention 73.A. The LILCO Motion should be denied.

LILCO also seeks to strike the paragraph beginning on page 5 and carrying over to page 6 of the Saegert testimony. The asserted basis for this motion is: "This testimony is outside the scope of Contention 73.A because it is clearly designed to support a contention that has been proposed but not yet admitted into the proceeding." Motion at 3. LILCO's assertion is in-accurate and, in any event, beside the point. The relevant inquiry with respect to the admissibility of testimony in an NRC. proceeding, as LILCO itself notes in the beginning of its Motion, is whether the testimony is probative, material and relevant to an admitted contention. The paragraph which LILCO-seeks to strike directly addresses Contention 73.A. Whether or not the comments contained in that paragraph may also be per-tinent or relevant to other proposed, admitted, or not admitted contentions is completely.beside the point. The fact'that those comments are relevant.to Contention 73.A is the;only' issue before this Board. A review of-the contention'and the portion of the Saegert testimony at issue reveals that there is no basis l . for~ striking.that testimony.

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The testimony which'LILCO seeks to strike is the following:

Furthermore, even for tihose people who did read the brochure, th'e information in the i

, brochure'about-what would-be done for handicapped: people may be'too vague to lead j those.needing assistance to wantLto rely on

! the unidentified "LERO" for such ass'. stance.

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Obviously such. individuals are unlikely to-return postcards.

(Saegert testimony _at 5-6) This paragraph addresses,the portion t.

4' of Contention 73.A-which states that "many people who will re-quire assistance will not return the' postcards to LILCO because

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they do not . . . (e)~ desire.to' rely on LILCO assistance in the event of an emergency."b! Professor Saegert points out that the description of the assistance to be provided may be insufficient

• to lead many persons needing assistance to be willing.to rely t f on LILCO to provide it.2_/

1 i ' Clearly, Professor Saegert's observation is relevant'to-t i- Contention 73.A.1. There is'no basis upon which to strike.that.

testimony. '

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i 1! At the time Contention,73.A was drafted, LILCO's-proposed

, information. brochure did not refer to "LERO" in describing-who would provide assistance to the' handicapped, and therefore.-

~the word 'LILCO" appears in the contention.- Professor _Saegert,

. obviously, was

referring _to Revision 3.of the brochure when-

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she prepared-her testimony on. Contention 73.A,1 and thereforei .

used the term "the unidentified 'LERO.'" in describing: the/ in- .

, formation that-would be available,Hsince thatiis'the reference

^in the current; version of the brochure. ,

-!' Contrary to LILCO's assertion in its Motion,cthe point made~ l

t. .in;the..Saegert testimony is'different;from;the proposed modi ' -l

-fied Contention'16.N.c The Saegert. testimony discusses the 1 7

description:ofathe-assistance that would;be provided'to the

. .I handicappedi. Contention _16.N discussesithe references to LERO,

'the provider;of'the' assistance. As1noted?above,,however, any- '

. relationship <between? thef Saegert testimony _ and ~any: other conten- '

tion 11s not

materialftos the-issue presented"by..the LILCOl Motion; c,

~toLStrikebecause'the Saegert testimony.is; relevant;to'ContentionE  :'

~73.A ,

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__. _ _p -, ly . .; . &, .. . :. - . -

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Finally, LILCO's observation that, in its view, "the remedy" for the problem raised in this portion c.: Professor Saegert's testimony "would be to revise the brochure," and therefore this portion of Professor Saegert's testimony should be stricken from [

her testimony on Contention 73.'A is without basis and also be-  !

side the point. First, there is no reason to believe that a j revision in the brochure would necessarily change.the decisions 1

of handicapped persons concerning their willingness to rely on LILCO or LERO to provide assistance to them. Accordingly,

'l Professor Saegert's opinion that some handicapped individuals will not return postcards could very well remain unchanged despite revisions in LILCO's brochure. Moreover, and to the point, the supposed " remedy" for an issue in a contention is not the stan-dard by which a motion to strike is decided. Simply because a brochure revision may, in LILCO's view, be relevant to an issue f

raised in a particular contention, does not mean that testimony on that issue is beyond the scope of the contention in which it is raised.

LILCO's Motion to strike portions of the Saegert testimony.

2 should be denied in its entirety.

Respectfully submitted, Martin-Bradley Ashare

Suffolk County-Department of Law i- Veterans Memorial IItghway Hauppauge New York 111788

.g l0h LaVrehce Coe Lan 5er Karla'J.'Le.tsche KIRKPATRICK, LOCKHART, CHILL,- -

l CHRISTOPHER & PHILLIPS

-1900.M; Street,'N.W.,LSuitef800 Washington, D.C. 20036

,  ; Dated: ' March:16,;1984: Attorneys for Suffolk' County

o ry n!! DEN N

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1 UNITED STATES'OF AMERICA I

NUCLEAR REGULATORY COMMISSION Before the Atomic Safety nnd Licensing Board 4 1

) )

In the Matter of )

)

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

) (Emergency Planning) i (Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE l

I hereby certify that copies of: 1

1. Suffolk County's Resp 9ase to'LILCO's Motion.to Strike r j Portions of the Direct Testimony of Philip B. Herr on

Contention 22.D -- Inadequacy of LILCO's EPZ; I

2. Suffolk County's~ Response to LILCO's Motion to Strike the Direct Testimony.of' Deputy Chief / nspector Richard I

C. Roberts,.et al. on Contentions 24.T and 59;

3. Suffolk County-Memorandum in Opposition to LILCO's j Motion to Strike Portions of the Testimony of David.

- Harris =and Martin Mayer on Contentions 24.G and 75;

4. Suffolk County's Response to LILCO's Motion to Strike

. . Portions of Direct Testimony on-Behalf of Suffolk County

Regarding Emergency Planning Contention 26;

5. Suf folk County's Response to LILCO's Motion to Strike Portions of Direct Testimony on Behalf of Suffolk County Regarding Emergency-Planning Contentions 28,;29, 30, 31, l ;32 and 34; 1

6. Suffolk. County's Response to LILCO's Motion to Strike Portions of Direct Testimony on Behalf of Suffolk County

Regarding Emergency' Planning l Contentions 55-58;

7. .Suffolk County's Response to LILCO's Motion (to Strike Portions of The Suffolk County. Police Department

Witnesses Testimony oncEmergency Planning Contention'66;.

8. Suffolk County Response to.LILCO's Motion to Strike Portions of' State of Newi York Testimony on Contentions 66.D,67,.73 and.97.B; and ,

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9. Suffolk County Memorandum in opposition to LILCO's Motion to Strike Portions.of the Testimony of Susan Saegert on Contention 73.A..

were served this 16th day of March, 1984 by U.S. mail, first class, except as otherwise noted'toLthe following:

James.A. Laurenson, Chairman Ralph Shapiro, Esq.

Atomic Safety =and Licensing Board Cammer.and Shapiro U.S. Nuclear Regulatory Commission 9 East 40th Street Washington, D.C. 20555 New York, New York 10016 Dr. Jerry R. Kline -

Howard L..Blau, Esq.

Administrative Judge .

217 Newbridge Road Atomic Safety and Licensing Board Hicksville, New York.ll801 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 W. Taylor Reveley, III, Esq.

Hunton & Williams Mr. Frederick J. Shon P.O. Box 1535 Administrative Judge 707. East Main Street.

Atomic Safety and Licensing Board Richmond, Virginia 23212 U.S. Nuclear Regulatory' Commission Washir.gton, D.C. 20555 Mr. Jay Dunkleberger New York State Energy. Office Edward M. Barrett, Esq. Agency Building 2 General Counsel - EmpireLState Plaza Long Island Lighting Company .. Albany, New York 12223 250 Old Country. Road Mineola, New York 11501 James'B. Dougherty, Esq.

3045 Porter Street, N.W.

Washington, D.C. 20008 Mr. Brian McCaffrey _ Stephen B. Latham, Esq..

Long Island Lighting Company Twomey,'Latham & Shea Shoreham Nuclear Power Station P.O.? Box 398-P.O. Box 618 33 West Second Street-North Country Road Riverhead,-New York.11901 Wading River,-New York-11792

. Marc W.. Goldsmith:

EnergyJResearch~ Group, Inc.

1400-1 Totten Pond-Road.

Waltham,. Massachusetts;02154. -

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Joel Blau, Esq. MHB Technical Associates New York Public Service Commission 1723 Hamilton Avenue The Governor Nelson A. Rockefeller Suite K-Building San Jose, California 95125 Empire State Plaza

, Albany, New York 12223 Hon. Peter F. Cohalan Suffolk County Executive Martin Bradley Ashare, Esq. H. Lee Dennison Building Suffolk County Attorney Veterans Memorial Highway H. Lee Dennison Building Hauppauge, New York 11788 Veterans Memorial Highway Hauppauge, New York 11788 Stuart Diamond Environment / Energy Writer Atomic Safety and Licensing NEWDAY Board Panel Long Island, New York 11747 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of the Secretary Atomic Safety and Licensing Docketing and Service Section Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory 1717 H Street, N.W. Commission Washington, D.C. 20555 Washington, D.C. 20555 Bernard M. Bordenick, Esq. Jonathan D. Feinberg, Esq.

David A. Repka, Esq. Staff Counsel U.S. Nuclear Regulatory Commission New York State Public Washington, C.C. 20555 Service Commission 3 Rockefeller Plaza Albany, New York 12223 Stewart M. Glass, Esq. Nora Bredes Regional Counsel Executive Director Federal Emergency Management Shoreham opponents Coalition Agency 195 East Main Street 26 Federal Plaza, Room 1349

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Smithtown, New York 11767 New York, New York 10278 Spence Perry, Esq.

Eleanor L. Frucci, Esq. Associate General Counsel Atomic Safety and Licensing Federal Emergency Management Board Panel Agency U.S. Nuclear Regulatory Commission Washington,.D.C. 20472 Washington, D.C. 20555 f

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• • Fabian Palomino, Esq.

Special Counsel to the Governor Executive Chamber State ~ Capitol Room 229 Albany, New York 12224 Michael S. Miller KIRKPATRICK, LOCKHART, HILL, CHRISTOPHER & PHILLIPS 1900 M Street, N.W., Suite 800 Washington, D.C. 20036

• By Hand

• • By Federal Express I

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_ _ _ __________________.- ____ _ _ _ - . _ _ _ _ _ _ _ _e .. _ _ _ _ _ _ _ .