ML20090C781
| ML20090C781 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/11/1984 |
| From: | Monaghan J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| OL-3, NUDOCS 8407130433 | |
| Download: ML20090C781 (11) | |
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' c cg LILCO, Juli 11, 1984 I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
,hG In the Matter of
)
(Il 13 y
A10:52 LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL ) (Emergency Plannificf Proceeding)
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(Shoreham Nuclear Power Station, )
Unit 1)
)
LILCO'S ANSWER OPPOSING SUFFOLK COUNTY'S MOTION TO ADMIT SUPPLEMENTAL TESTIMONY OF DEPUTY INSPECTOR PETER F. COSGROVE AND LIEUTENANT JOHN L.
FAKLER ON BEHALF OF SUFFOLK COUNTY REGARDING CONTENTIONS 39, 40, 41, 44, 98, 99 AND 100
-- TRAINING OF OFFSITE EMERGENCY RESPONSE WORKERS On July 6, 1984, Suffolk County filed "Suffolk County's Motion to Admit Supplemental Testimony of Deputy Inspector Peter F. Cosgrove and Lieutenant John L.
Fakler on behalf of Suffolk County regarding Contentions 39, 40, 41, 44, 98, 99 and 100 --
Training of Offsite Emergency Response Workers."
The testimony itself, which was served the following day, discusses selected comments from the critique forms that had been provided to Suffolk County on June 1, 1984 through discovery.
The County's motion states that the good cause exists for admitting the supplemental testimony on the grounds that the testimony is " relevant, not cumulative, and incapable of being filed in a more timely fashion,"
Motion at 4.
LILCO opposes the County's motion to admit supplemental testimony on the grounds that the supplemental testimony which Suffolk County seeks to admit is contrary to the Board's Order, is not admissible evidence within the meaning of 10 C.F.R.
$ 2.743(c), and fails to meet the standards for the submission of supplemental testimony.
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STATEMENT OF FACTS On April 18, 1984, the County requested production of a num-ber of documents relating to the training contentions.
Included among the document requests was a request for all documents relating to the critiques and evaluations of LERO trainees' performance by drill and/or exercise controllers and/or observers.
.-including all completed drill and/or exercise evaluation forms from LERO drills and/or exer-cises that have been conducted.
On June 1, 1984, after hearing oral argument from the parties on a motion to compel, the Board ordered LILCO to produce the critique evaluation forms.
The Board ruled that the compleued evaluations and critiques were relevant to the testimony and contentions in controversy, but at the same time issued the following caveat:
[T]he mere fact that we find these documents discoverable should not be taken to establish that they are admissible in evidence or that isolated critiques may form the basis for cross-examination at this hearing.
The County is entitled to see these doc-uments to determine if it can establish its contention by showing that the pattern of the critiques is inadequate or that the pattern of the critiques establishes an absence of objective evaluation criteria.
Tr. 9,674 (Laurenson).
On June 1, 1984, pursuant to the Board's Order, LILCO pro-duced all critique forms that had been written by controllers and observers at LERO drills and any existing summaries of those cri-tique forms.
Hearings on the training issue did not begin until eleven days later, on June 12, 1984.
Apparently, during that i
intervening time period, neither the County nor its consultants performed any valid analysis, much less a statistical analysis, of the critique forms to establish a pattern.
Instead, on June 13, 1984, Suffolk County attempted to enter into evidence Suffolk County EP-65, which the Board described as "a selected subset of forms drawn from a much larger collection of such forms."
Tr.
11,559 (Kline).
In a detailed bench ruling on June 14, 1984, the Board denied admission of Suffolk County EP-65.
In its Order the Board reminded the County that it had " cautioned against the inference that these individual evaluations of the drill performance would be admissible as evidence in this case."
Tr. 11,558 (Kline).
The Board further stated that This [ selective subset of forms drawn from a much larger collection of such forms]
is not what the Board had in mind when it said that the. form [s] collectively must exhibit a pattern which might be admissible.
We did not think it necessary to state addi-tionally that any purported pattern that might be shown must be an unbiased one within the statistical meaning of that term.
At a minimum, this would require scruti-ny and a summary of the entire available database and not just a selected subset of that base Clearly a selected subset of such survey forms would be inadmissible for the obvious reasons that subsets could be formed by selection of only those responses which were consistent with the parties' view.
Tr. 11,559-11,560 (Kline).
Subsequent to the Board's ruling of June 14, 1984, denying admission to Suffolk County EP-65, Suffolk County made repeated attempted to place into evidence portions of the critiques through the testimony of the LILCO witnesses.
See Tr. 11,700-708, 11,775-778, 11,802-803, 11,974.
In all cases, LILCO's objections to the admission of such evidence through the testimony of the LILCO wit-nesses were sustained.
The Board ruled that selective subsets of the raw data were not persuasive admissible evidence and that per-mitting the admission of this type of evidence into the record would present a biased result, which would be of no value in the decisionmaking process and which would merely add bulk to the record, both of which the NRC regulations prohibit.
The Board reiterated its conclusion that in order to yield admissible evi-dence based on the critiques, it would take a summary analysis of the data and documents in a statistical form.
- See, e.g.,
11,704-705, 11,707, 11,708.
To preserve for the record the evidence which the County sought to have admitted during the hearings, Suffolk County made two offers of proof pursuant to 10 C.F.R. 5 2.743(e).
See Tr.
11,818-11,830, 11,975-11,978.
In those offers of proof, counsel for the County read into the record selected quotations from cri-tique forms completed by individual controllers and observers and placed in the record eight exhibits which consist of selected subsets of the critique forms.
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ARGUMENT I.
The Supplemental Testimony Is Contrary To The Board's Order In its June 14 Order denying admission of Suffolk County EP-65, the Board had specifically warned that a selected subset of the critique forms would be inadmissible as evidence and that in order to have the critique forms admitted as evidence, the County must establish a pattern through a statistical analysis of all the critique forms.
See Tr. 11,558-11,559 (Kline).
The supplemental testimony which Suffolk County seeks to admit does not purport in any way to be the result of or to embody a statistical analysis of the critique forms.
Rather, the supplemental testimony of Deputy Inspector Cosgrove and Lieutenant Fakler consists simply of a stringing-together of selected quotations from a selected set of the critique forms produced by individual drill and exercise con-trollers, with the selected critique forms themselves appended as attachments.
Indeed, the appended critique forms are virtually identical to the exhibits that the County placed in the record in support of its Offers of Proof.1/
1/
Specifically, Attachment 1 is virtually identical to Suffolk County EP Exhibit 69, described as comments by individ-ual observers regarding inadequate briefings being given to drill and exercise participants prior to the drill or exercise being conducted.
Tr. 11,975 (Miller). is virtu-ally identical to Suffolk County EP Exhibit 71, which was de-scribed as documents regarding problems with communications as-pects of the training program.
Tr. 11,976 (Miller). is virtually identical to Suffolk County EP Exhib-it 72, which was described in the County's offer of proof as documents referencing problems with the use of radio equipment footnote continued j
. s As is detailed in the Statement of Facts above, the County has made repeated attempts to have selected portions of the cri-tique forms admitted as evidence.
The supplemental testimony of Deputy Inspector Cosgrove and Lieutenant Fakler is but another attempt to have admitted the same evidence in the same format.
Despite its title, the County's motion is not one for admission of supplemental testimony, but is in fact a motion for reconsid-eration of the Board's prior rulings.
The Board's prior rulings on the issue of admissibility of selected subsets of the critique forms are clear.
If the County seeks to use the critique forms as evidence then it must, as the Board has ordered, provide a statistical analysis of the critique forms.
The testimony contains no such analysis.
II.
The Supplemental Testimony Is Not Admissible Evidence Under the Commission's Rules of Practice, "only relevant, material and reliable evidence which is not unduly repetitious will be admitted."
10 C.F.R. $ 2.743(c).
The County's supplemen-tal testimony which consists of selected quotations from the continued during drills and exercises.
Tr. 11,976 (Miller).
Attachment 4 is virtually identical to Suffolk County EP Exhibit 74, which was described in the County's offer of proof as documents re-ferencing problems with the emergency worker decontamination facility.
Tr. 11,977 (Miller). is virtually
. identical to Suffolk County EP Exhibit 73, which was described in the County's offer of proof as documents relating to dosimeters not be regularly. checked.
Tr. 11,977 (Miller). is virtually identical to Suffolk County EP Exhib-it 70, which was described in the County's offer of proof as documents referencing inadequate briefings given to observers and controllers.
Tr. 11,976 (Miller).
e-
, h critique forms completed by the individual observers and control-lors and attaches a selected subset of those forms, is unreliable, immaterial and irrelevint.
This Board has ruled repeatedly during the hearings on the training contentions that evidence virtually identical to that contained in the supplemental testimony, which consisted of a se-lective subsets of critique forms, was not admissible evidence.
- See, e.g.
11,558-561, 11704.
The Board stated, and LILCO concurs with the statement, that an isolated selection of comments by in-dividual drill controllers and observers presents a biased record that is of no value to the Board in writing the findings of fact or in writing a decision in the case.
Tr. 11,705, 11708 (Laurenson).
What the County's supplemental testimony presents is precisely such a selected subset of survey forms.
Whether the content of the forms is presented through the direct testimony of Suffolk County's witnesses, which essentially consists of reading selected quotations from the critique forms or through the Attach-ments which consist of a selection of critique forms themselves, the evidence suffers the infirmity of having been selected be con-sistent with the views of a particular party and not taking into consideration whether additional alternative hypotheses could be developed from the same data base.
As the Board stated in its Order, " valid hypotheses cannot be generated by the obviously flawed methodology employed by the County in this instance."
Tr.
11,561 (Kline).
'6 j
For the reasons outlined above, this Board has previously ruled that the evidence the County seeks to present through its supplemental testimony was inadmissible.
The evidence has not changed.
It is no more reliable, relevant or material than it was on June 14 or 15.
The County's motion should be denied on the grounds that the testimony is unreliable, immaterial, and irrele-vant evidence and, therefore, inadmissible.
III. The County Supplemental Testimony Fails to Meet The Standards for Submission of Supplemental Testimony The admission of supplemental testimony or rebuttal testimony must meet a higher threshold than is required for admission of initial testimony; the party must establish good cause for its ad-mission.
This Board has previously noted that, for an adequate showing of good cause, the Board requires that the proper testimo-ny be shown to be:
1.
relevant to an important point in the direct testimony; I
2.
arguably relevant to an issue of deci-sional importance in this proceeding; 3.
not cumulative with any other testimony in the record; and 4.
incapable of being filed in a more.
timely fashion.
See Memorandum And Order Ruling On Suffolk County's Motion To File Rebuttal Testimony of Steven Cole and Andrea Tyree (February 28, 1984).
Even if the proffered supplemental testimony were otherwise admissible, which is it not, the County has failed to establish l
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4
. t good cause for admission of this testimony because it fails to meet the second criterion of the test for " good cause."
The sec-ond criterion requires that the testimony offered be " arguably relevant to an issue of decisional importance in this proceeding."
As the Board noted on the numerous, previous occasions on which it has rejected the County's attempts to admit this same evidence it is not probative and is of no value to the Board in its job of drafting findings of fact and writing a decision in this case.
Tr. 11,555-561 (Kline).
11,704-705, 11,708 (Laurenson).
- Clearly, nonprobative, inadmissible evidence, which the Board itself has stated would be of no value in drafting findings-or its decision, is not " relevant" to an issue of decisional importance in this proceeding.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY NJ h.
//' Donald P.
Irwin v
Jessine A. Monag n
Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 DATED:
July 11, 1984
LILCO, July 11, 1984 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
(Emergency Planning Proceeding)
Docket No. 50-322-OL-3 I certify that copies of LILCO'S ANSWER OPPOSING SUFFOLK COUNTY'S MOTION TO ADMIT SUPPLEMENTAL TESTIMONY OF DEPUTY IN-SPECTOR PETER F. COSGROVE AND LIEUTENANT JOHN L.
FAKLER ON BE-HALF OF SUFFOLK COUNTY REGARDING CONTENTIONS 39, 40, 41, 44, 98, 99 AND 100 -- TRAINING OF OFFSITE EMERGENCY RESPONSE WORKERS were served this date upon the following by first-class mail, postage prepaid, or by hand (as indicated by one aster-isk).
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.*
Oreste Russ Pirfo, 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 Stewart M.
Glass, Esq.*
Regional Counsel Eleanor L.
Frucci, Esq.
Federal Emergency Management Attorney Agency Atomic Safety and Licensing 26 Federal Plaza, Room 1349 Board Panel New York, New York 10278 U.
S. Nuclear Regulatory Commission Stephen B.
Latham, Esq.
East-West Tower, North Tower John F.
Shea, Esq.
4350 East-West Highway Twomey, Latham & Shea Bethesda, MD 20814 33 West Second Street P.O.
Box 398 Riverhead, NY 11901
~ Fabian G.
Palomino, Esq.*
Ralph Shapiro, Esq.
Special Counsel to the Cammer & Shapiro, P.C.
Governor 9 East 40th Street Executive Chamber New York, New York 10016 Room 229 State Capitol James B.
Dougherty, Esq.
Albany, New York 12224 3045 Porter Street Washington, D.C.
20008 Herbert H.
Brown, Esq.*
Lawrence Coe Lanpher, Esq.
Jonathan D.
Feinberg, Esq.
Christopher M.
McMurray, Esq.
New York State Public Service Kirkpatrick, Lockhart, Hill Commission, Staff Counsel Christopher & Phillips 3 Rockefeller Plaza 8th Floor Albany, New York 12223 1900 M Street, N.W.
Washington, D.C.
20036 Spence W.
Perry, Esq.
Associate General Counsel MHB Technical Associates Federal Emergency Management 1723 Hamilton Avenue Agency Suite K 500 C Street, S.W.,
Rm. 840 San Jose, California 95125 Washington, D.C.
20472 Mr. Jay Dunkelberger Ms. Nora Bredes New York State Energy Office Executive Coordinator Agency Building 2 Shoreham Opponents' Coalition Empire State Plaza 195 East Main Street Albany, New York 12223 Smithtown, New York 11787 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 NEL j//
Jessine A.
Monagh Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATED:
July 11, 1984 1