ML20106E413
| ML20106E413 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/08/1985 |
| From: | Scheidt D KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#185-517 OL, NUDOCS 8502130304 | |
| Download: ML20106E413 (15) | |
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- p. gD SUFFOLK COUNTY, FEBRUARY 8;, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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g Before the Atomic Safety and Licensing Board 1
)
In the Matter of
)
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LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL
)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
SUFFOLK COUNTY'S OPPOSITION TO LILCO'S MOTION TO STRIKE TESTIMONY OF DALE G.
BRIDENBAUGH AND GREGORY C. MINOR REGARDING SUFFOLK COUNTY'S EMERGENCY DIESEL GENERATOR LOAD CONTENTION For the reasons discussed below, LILCO's mction to strike t
portions of the County's testimony on the EDG Load Contention
.should be denied in its entirety.
L i
I.A. LILCO objects to the admissibility of the portions of L
the County's testimony that relate to the standard practice at other nuclear plants of providing a significant margin between the maximum emergency service loads and-the maximum rated loads of emergency diesel generators (LILCO Motion at 2-4).
LILCO argues that such evidence is inadmissible because the Board re-fused to admit subpart (b) of the County's proposed EDG Load Contention which-related to margin at other plants, and because this evidence allegedly is irrelevant.
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Although the Board specifically declined to admit as a separate contention subpart (b) of the County's proposed EDG Load Contention relating to margin at other plants (January 18, 1985 Order, at.7-8), that in itself is not a basis for
- excluding the chal.lenged testimony.
The Board previously has indicated thr'. the rejection of a specific contention does not preclude the admission of testimony on the same subject matter if that testimony is relevant to, the admitted portion of the contention.l./
Here, the evidence of margin at other plants is relevant and integral to the County's EDG Load Contention.
Indeed, the Board expressly rejected the admissibility of subpart (b) as h separate contention on the ground that it was,
related to and, in fact was redundant of subpart (a) of the
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contention.
It is true (as LILCO emphasizes) that the Board's Order
- ruling on admissibility of the County's Load Contention states that' consideration of the margin at-other plants would be ir-relevant.
(January 18, 1985 Order at 8).
However, that cannot be construed to be a ruling on the admissibility of-the
)
1/
- See, e.g.,
transcript references cited in Suffolk County's Opposition to LILCO's Motion To_ Strike Portions Of The-Joint Direct Testimony-Of Dr. Robert N. Anderson, et al.,
August 14, 1984, at 10-11.
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evidence here in question; the Board did not even have the testimony before it at the time.
The County's testimony clear-ly demonstrates the relevancy and materiality of that evidence to the admitted contention.
The evidence of margin between the maximum emergency service loads and the maximum rated loads of emergency diesel generators at other nuclear plants demon-strates the accepted interpretation by the nuclear industry and the Nuclear Regulatory Commission of the requirements of GDC 17 as to the sufficient capacity and capability to assure appro-priate responses to postulated accidents.
- See, e.g.,
Testimony-of Dale G.
Bridenbaugh and Gregory C. Minor Regarding Suffolk County's Emergency Diesel Generator Load Contention, January 25, 1985, at 15-17, 20-21.
Such evidence is clearly relevant and material because it demonstrates how GDC 17 has been interpreted and applied in past licensing actions.
- Indeed, such evidence is particularly relevant to the issues in this
. proceeding because GDC 17 does not specify any empirical stan-dards for evaluating the EDGs but, instead, provides only sub-jective guidance.
In these circumstances, the regulatory stan-dar'ds are not totally free from ambiguity, and the past prac-tice of the NRC and industry in interpreting and applying the C
regulation is-the best evidence of what the regulation really means.
..1
4 It is, of course, well settled that considerable deference is to be accorded an agency's interpretation of its own regula-tions.
Thus, in North-Anna Environmental Coalition v. NRC, 533 F.2d 655, (D.C. Cir.'1976), the Court upheld the NRC's inter-pretation of certain regulations based on the testimony of NRC
- Staff members who had been involved in promulgating those regu-lations concerning their intent in doing so.
If such evidence is' relevant and properly considered, then it is clear that evi-dence of.the NRC Staff's application of its regulations (which establishes ti.e NRC's actual practice in interpreting the regu--
.lations) is equally admissible and properly considered here.
In summary, granting LILCO's motion as to this testimony.
would preclude the County from introducing vital evidence con-cerning how the requirements of.GDC 17-have been applied in the past.and, accordingly, low GDC must be' interpreted in the in-stant case.- This evidence is particularly crucial here, be-cause the Staff, without adequate' justification or explanation,
- has taken positions in the SER which.significantly depart-from the established interpretation of GDC 17 requirements.
The ex-clusion ofLsuch evidence would create a gaping hole.in the ad -
4
. ministrative record.and-be clear error.
I.B. LILCO objects to various portions of the County's testimony that refer to uncertainties inherent in the predicted accident scenario, including system degradation and modeling and calculational errors, on the ground that the testimony is outside the scope of the contention, irrelevant, vague and speculative (LILCO Motion at 4-6).
LILCO is mistaken in each of these respects.
First, as discussed above, the fact that the Board rejected the admissibility of a separate contention on an issue does not. preclude the admission of relevant testimony on the same subject matter.
In fact, the Board rejected subparts (a)(v) and (vi) of the proposed Load Contention because it con-sidered those subparts to be too broad and v' ague to satisfy the standards for admissible contentions.
(January 18, 1985 Order, at 6-7).
Vagueness and overbreadth, however, are not grounds for excluding testimony because those concerns can be cured or challenged by cross-examination.2/ In any event, the County's witnesses specifically identify various " uncertainties" to 2]
If indeed the testimony is too-vague to be understood, then LILCO can feel comfortable in ignoring it because it will carry no weight.
Indeed, overbreadth and vagueness are.not referred to at all'in the regulatory standards for admissibility of evidence, 10 CFR Section12.743(c) [rele-vant; material,-and reliable evidence not unduly repeti-tive is admissible].
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which they refer.
If LILCO believes that the County's testimony is without sufficient factual foundation, or based upon erroneous facts, LILCO may resolve its concerns by cross-examination.
See cases discussed in the County's August 14, 1984, Opposition to LILCO's motion to strike, at 3 n.l.
Second, the challenged testimony is highly relevant to the admitted contention and is not overly speculative as LILCO claims.
Indeed, the relevant Regulatory Guide itself acknowl-edges and accounts for " uncertainties inherent in estimates of safety loads" (Regulatory Guide 1.9, at 1.9-2); those uncertainties constitute the basis for the regulatory require-ment of margin.
It is absurd to suggest that testimony
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discussing these uncertainties should be stricken just because the uncertainties cannot be identified and quantified with ab-solute precision.
Indeed, " accidents" would not occur but for u'nforeseen, and often unforeseeable, events.
LILCO's objec-tions are based upon the incorrect assumption in its testimony that LILCO has identified and quantified all possible uncertainties.
The County's testimony refutes that position, and demonstrates that the consideration of uncertainties is not speculation but proper and conservative contingency planning and that margin is required to accommodate those uncertainties.
I.C.
LILCO's objections to the County's testimony concern-ing the absence of a short-time rating for the EDGs (LILCO Mo-tion at 2, 6-7) are absurd.
That testimony does not state, imply, or assume, and the EDG Load Contention does not attack, the concept of a single qualified load.
The County would not challenge the single qualified load for the Shoreham EDGs if it were adequate to encompass all loads the EDGs might reasonably be required to carry.
However, the County contends that LILCO's proposed qualified load is not adequate to accomplish that purpose, as the subject testimony makes clear.
Therefore, the County contends that providing for an overload (i.e.,
jkg "short-time") rating is customary and indeed required in this particular case to accommodate intermittent or accidental loads that will (or conceivably could) cause the EDGs to exceed the single qualified load.
Indeed, Regulatory Guide 1.9 specifi-cally refers to short-time ratings of emergency diesel genera-tors as a guide by which to determine whether a specific diesel generator has adequate load capability and margin to comply with GDC 17.
It is therefore absurd to suggest, as LILCO does, that testimony concerning a short-time rating and the industry practice in the area is "outside the scope of the contention, without regulatory basis, and irrelevant."
On the contrary, the fact that, contrary to generally accepted industry
practice, the EDGs have no overload rating to accommodate cyclic loads and various other loading uncertainties is persua-sive evidence that the EDGs do not comply with GDC 17 require-ments.
II.A.
LILCO moves to strike as speculative answer 18, which states the witnesses' opinion as to why LILCO did not measure all ' >eds in establishing the MESL.
The County believes that the challenged tertimony, as written, is essen-tially argument and properly reserved as such.
Accordingly, the County withdraws answer 18.
1 In contrast, LILCO's objection that answer 17 is specula,
tive is without merit.
In that answer, the witnesses specifi-cally state.the factual basis for their opinion as to whether certain aspects of the integrated electrical test ("IET") ade-quately account for the total loads that may arise during acci-dent conditions.
The testimony demonstrates that the IET can-not be accepted at face value, and that there are valid reasons for believing that the IET did not reflect all such loads.
This is in contrast to LILCO's testimony that the IET reflects realistic load levels.
In short, the County's testimony establishes that the uncertainties about which the County is concerned are not speculatise, but have a substantial basis in fact.
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III. LILCO argues that the County's witnesses lack the qualifications needed to proffer testimony concerning the com-plexity and comprehensiveness of various Shoreham procedures and the likelihood of operator actions and errors (LILCO Motion at_7-8).
To the contrary, both Mr. Minor and Mr. Bridenbaugh are adequately qualified by training and experience to provide expert opinions on these subjects.
For example, as he testified in his deposition, Mr. Minor has significant experi-ence with the design review of control room concepts used in boiling. water reactors.
This experience included analyzing the' likelihood of -operator error in making decisions and undertak- -
ing actions throughout the design process to make the system less vulnerable to operator. error.
- See, e.g.,
Joint Deposition.
of Dale Bridenbaugh and Gregory Minor, December 18, 1984, at
- 4'-6.
In addition, Mr..Bridenbaugh testified to his consider-able experienceEin operator training (the framework of which is a'd the practical _ aspects of plant startup operator procedures) n and checkout,. including conducting formal ~ operator training
- programs and. developing specialized simulator training pro-grams.
Id. at 5.
Furthermore, as set forth in~their profes-sional qualifications which'are part'of this record, both~
Mr. Bridenbaugh and Mr.~ Minor'testifed extensively as expert-
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-witnesses on emergency operating procedures during the Diablo-
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Canyon and Rancho Seco licensing proceeding.
LILCO conveniently ignores all of this pertinent and readily avail-able'information demonstrating the witnesses' qualifications.
Furthermore, LILCO's objections misconstrue the law governing experts' qualifications.
Here, the subject matter of the witnesses' testimony clearly falls within their experience in and overall knowledge of engineering and, therefore, qualifies them as experts.
Holmgren v. Massey-Ferguson, Inc.,
F.
2d 856, 858 (8th Cir. 1975) (discussed in detail in the County'.s September 5, 1984, Opposition to LILCO's August 29 supplemental motion to strike, at 3).
At the very best, all of LILCO's arguments concerning the expertise of the County's wit,
nesses go to the weight to be given to the testimony.
- Clearly, the County's testimony on the complexity and comprehensiveness of the Shoreham procedures, and on the likelihood of operator error and action, is relevant and is based upon the witnesses' knowledge, skill, experience, training and education.
Further-more, this testimony will assist the Board in understanding the
. evidence and the facts in issue.
.IV.
LILCO'.s claim that the testimony on pages.5 to 7 of the County's testimony is irrelevant and unresponsive-(LILCO Motion at 8-9) is specious.
The testimony clearly is relevant because it relates the historical background which gave rise to
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e the EDG Load Contention, specifically discusses the pertinent aspects of Revision.34 to the Shoreham FSAR that are in issue, and lays the foundation for the testimony that follows.
This testimony is responsive to the question because it provides necessary background information for the remainder of the an-swer (to which LILCO raises no objection and therefore im-pliedly concedes is responsive).
In any case, LILCO's argument that the answer is not " responsive" is not a ground for objecting to the admissibility of testimony.
10 CFR
{ 2.743(c).
V.
LILCO objects to answer 30 and portions of answer 29 of the County's testimony on the ground that they constitute an' impermissible challenge to the single failure criterion of GDC 17 (LILCO Motion at 9-12).
Beside mischaracterizing portions
- of the County's testimony as requiring the consideration of multiple, independent failures, LILCO's objections are no more than an unauthorized' reply to the views expressed in the Board's January 18th Memorandum and Order, at 5-6, and in the County's January 25th Response, concerning the inapplicability of the single failure criterion to the EDG Load Contention.
The-Board has, in other contexts, clearly expressed its posi-tion that such supplemental replies are improper and should not be considered.
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O VI.
Conclusion For the foregoing reasons, LILCO's motion to strike por-tions of the County's EDG Load Contention testimony should be l
denied in its entirety.
i Respectfully submitted, Martin Bradley Ashare Suffolk County Department of Law Veterans Memorial Highway Hauppauge, New York 11788 Alan Dynger Joseph J.
Brigati Douglas J.
Scheidt KIRKPATRICK & LOCKHART 1900 M Street, N.W.,
Suite 800 Washington',
D.C.
20036 Attorneys for Suffolk County February 8, 1985 h.
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UNITED STATES OF AMERICA l
~ NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
'85 n m 11 N1.58
)
In the Matter of
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LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL
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(Shoreham Nuclear Power Station,
)
Unit 1)
)
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CERTIFICATE OF SERVICE I hereby. certify that copies of SUFFOLK COUNTY'S OPPOSITION TO.
LILCO'S MOTION TO STRIKE THE TESTIMONY OF DALE G. BRIDENBAUGH AND GREGORY C. MINOR REGARDING SUFFOLK COUNTY'S EMERGENCY DIESEL GENERATOR
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LOAD CONTENTION, dated Feburary 8, 1985, have been served on the following this 8th day;of February, 1985, by U.S. mail, first class, except as otherwise indicated.
~
. Lawrence J. Brenner, Esq.*
M3B Technical Associates
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Administrative Judge 1723 Hamilton Avenue
. Atomic Safety and Licensing Board Suite K U.S. Nuclear Regulatory Commission San Jose,. California 95125
- Washington, D.C.
'20555 E. Milton Farley, III, Esq.*
Dr. George A. Ferguson*
Hunton's Williams
- Administrative Judge P.O. Box 19230-Atomi'c Safety and Licensing Board 2000 Pennsylvania Ave., N.W.
School of. Engineering Washington, D.C.
20036 LHoward University
.-2300' 6th Street, N.W.
Odes L.' Stroupe, Jr., Esq.
Washington; D.C.
20059 Hunton a Williams, 333 Fayetteville Street Dr. Peter A. Morris
- Raleigh, North Carolina 27602 Administrative Judge Atomic: Safety and Licensing Board Mr. Jay Dunkleberger U.S. Nuclear Regulatory Commission New York State Energy Office Washington, D.C.
20555 Agency ~ Building 2 Empire State Plaza
. Edward M. Barrett, Esq.
Albany, New York 12223 LGeneral Counsel Long. Island Lighting Company James B. Dougherty, Esq.
250LOld Country Road
.3045 Porter Street, N.W.
Mineola, New York:
11501 Washington, D.C.
20008 Robert E. Smith, Esq.
Stephen B. Latham, Esq.
Guggenheimer & Untermyer Twomey, Latham & Shea 80 Pine Street.
P.O. Box 398 New York, New York 10005 33 West Second Street Riverhead, New York 11901 Mr. Brian R. McCaffrey
$gg Long Island Lighting Company Mr. John :Gallagher Shoreham Nuclear Power Station Deputy County Executive hhh P.O. Box 618 H. Lee Dennison Building North Country Road Veterans Memorial Highway Wading River, New York 11792 Hauppauge, New York 11788 Joel Blau, Esq.
Mr. Stuart Diamond gg New York Public Service Commission Business / Financial The Governor Nelson A. Rockefeller NEW YORK TIMES ll Building New York, New York 10036
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Empire State Plaza Albany, Ne'w York 12223 Hon. Peter F. Cohalan Suffolk County Executive Martin Bradley Ashare, Esq.
H. Lee Dennison Building Suffolk County Attorney Veterans Memorial Highway rg-H. Lee Dennison Building Hauppauge, New York
- 11788, 15 Veterans Memorial Highway Hauppauge, New York 11788 Fabian Palomino, Esq.i Special Counsel to the Atomic Safety and Licensino Board Governor Panel Executive Chamber U.S. Nuclear Regulatory f., nission Room 229 Washington, D.C.
20555 State Capitol Albany, New York 12224 Docketing and Service Section Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board 1717 H Street, N.W.
U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 l
Edwin J. Reis, Esq.*
Bernard M.
Bordenick, Esq.
Jonathan D. Feinberg, Esq.
Richard J. Goddard, Esq.
Staff Counsel Office of Exec. Legal Director New York State Public 4
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U.S. Nuclear Regulatory Commission Service Commission s
Washington, D.C.
20555 3 Rockefeller Plaza Albany, New York 12223 6
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Stewart M. Glass, Esq.
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Regional Counsel Federal Emergency Management Agency 26 Federal Plaza New York, New York 10278 b
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Douglagj J. Spheidt
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KIRKPATitICK & LOCKHART 1900 M Street, N.W.,
Suite 800 Washington, D.C.
20036 F
F DATE:
7 By Fedehnl Express By Hand'. Delivery 1
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