ML20206C572
| ML20206C572 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/30/1987 |
| From: | Barth C NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3034 OL-5, NUDOCS 8704130092 | |
| Download: ML20206C572 (11) | |
Text
3. nst March 30,1987 DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~8I APR -8 P2 :38 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFFIC: GF 3Ecmgp 00CKETitn,. ovar'
'In the Matter of
)
BWM
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
NRC STAFF MOTION TO STRIKE THE PROFFERED TESTIMONY OF SUFFOLK COUNTY ON CONTENTIONS EX 38, 39,- 22F, 44, 40.C AND 49C AND TO DENY ADMISSION OF SAID TESTIMONY On March 13, 1987, the County of Suffolk prefiled proffered testimony by Philip Evans, Ford Rowan, Stephen Cole, Susan C. Sargent, Elizabeth F.
Loftus,
David Harris and Martin Mayer (Testimony) regarding Contentions EX 38, 39, 22F, 44, 400 and 49C.
These contentions reflect Intervenors' views as to alleged deficiencies incurred during the recent emergency exercise.
The Staff moves pursuant to 10 C.F.R.
I 2.743(c) and 10 C.F.R. Part 2, Appendix A, V(d)(5) to strike much of the proffered testimony and to deny its admission into evidence in this proceeding for the reasons set forth below.
~
The proffered testimony consists of several sections, with the overall theme being that the applicants cannot supply timely or accurate information to the public. First the Intervenors assert that LILCO cannot disseminate accurate and timely information to the news media. They then assert that LILCO's rumor controls are ineffective.
The next section addresses Emergency Broadcast System [EBS) messages and alleges that l
when news of a problem at Shoreham occurs Long Island residents will l
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k begin to evacuate.
The basis of this part of the Testimony is Dr._ Cole's
~
telephone survey and meetings he'had with people who live on Long.
Island. - Finally, the Testimony asserts that a larger number of people would, in the event of an emergency, report to monitoring stations than planned for by LILCO.
(1) Much of the Testimony Is Not Relevant To The Emergency Exercise and Raises Matters Which Were Litigated and Previously Resolved The purpose of this phase of the Shorcham hearings is to resolve issues raised by Intervenors arising out of the recent emergency exercise (see Testimony p.10).
It is not to retry matters formerly litigated or try matters that could have been litigated in the 1983-1984 hearings.
The Licensing Board, in admitting contentions in - this proceeding, stated:
This proceeding, like any other, has no place for duplicative contentions, whether all of the repeti-tiveness occurs in the proposed contentions currently i
being filed or whether the contention-now being filed repeats that which has previously been litigated...
IIearing requirements are not at odds with disallowing a contention from being litigated more.than once and i
not permitting the relitigation of the same factual matters.
Prehearing Conference Order, October 3, 1986, at 9.
In arguments before the Commission on establishment of a Licensing Board to hear exercise issues, all the parties agreed that "no contention will be admitted 1
if it involves issues which were or could have been litigated earlier."
Response of the State of New York, Suffolk County and the Town of Southampton to LILCO's Motion for Establishment of Licensing Board and at 25 Institution of Expedited Procedures for Exercise Litigation,"
l i
l l
_3_
(quoting, in agreement, from LILCO's' Motion, at 11), March 24,1986.1_/
Thus, it is plain that no testimony may be given here on issues which were or could have been litigated in the extensive emergency planning hearings that were previously hcId in this proceeding.
Testimony about the adequacy of EBS messages and public reaction thereto does not depend upon the exercise, but upon the adequacy of the-EDS messages.
Similar messages were set out in the LERO plan at the time of the prior hearing.
- g. LER Plan O.P.I.P l 3.8.2, Rev. 2 (OL-3, Tr.1470 ff., Testimony of Cordaro, e_t al., Attachment 8); LERO Plan, t
O.P.I.P. I 3.8.2, Rev 5 (Testimony, Attachment 8). The public did not hear these messages during the exercise, and obviously did not react to them.
Data similar to that presented in Tables 1-4, Testimony, 4 -- which deals with the first, second, fifth and seventh EBS messages in the LERO plan and the percentage of the population of Long Island which would commence evacuation -- existed and could have been presented in the prior proceeding. EI Indeed, all the Testimony based on the messages used during the exercise and their effect on the public could have been litigated earlier.
-1/
See also, NRC Staff's Response to Intervenors' Motion Concerning PTocedures Related to the Shoreham Exercise and Applicant's Motion for Establishment of Licensing Board and Institution of Expedited Procedures for Litigation of Emergency Planning Issues, at 8-10.
-2/
Dr. Cole has previously presented a very similar survey premised upon similar speculations as to future actions as a result of the EBS messages in the LILCO plan.
The - Licensing Board gave it no predictive value.
Similar circumstances exist here. Here, as there, the public has not been provided with - educational and training information.
Therefore, a survey of reactions of individuals lacking such information has no predictive value.
See LBP-85-12, 21 NRC 644, at 666-667 (1985).
4
' o-655 el sg. (1985).
The testimony here, as it does not involve public reactions observed during the exercise but only hypothetical responses to messages in the LERO plan, could have been presented in the earlier litigation on the LERO plan. it may not be presented at this time.
Further, the testimony commencing at
- p. 140 is almost entirely composed of conjecture and speculation as to future public evacuation reaction if LILCO should declare an emergency.
As we have stated, public participation and public reaction were not. tested as a part of the recent emergency exercise.
No issue of fset in dispute among the parties j
can crise regarding public reaction as it was not tested, noi required to j
be tested, as a part of the emergency exercise. As the Intervenors have stated in another context:
"Since this function was not tested during the exercise, it is impossible to judge how adequate it might be....
It sounds to us like speculation and hardly something that can be termed a result of the Exercise." (Testimony p. 60).
Similarly, the proffered. testimony going to Contention EX 44, alleging that confused or conflicting information could lead to a substantial voluntary evacuation, is not premised upon events that happened during exercise. Litigation in this proceeding must'be premised -
on conduct of the exercise.
The opinions of selected Long Island i
residents concerning messages which in format and general content were contained in the LERO Plan, and which they did not hear during the exercise, do not address the events of the exercise. See, Attachments to Suffolk County Testimony.
Rather, these opinions seek to address the adequscy of portions of procedures in the LERO plan, and clearly could have been or were litigated previously.
4
The attempt to relitigate adequacy of the EBS messages (and - the 1
. evacuation shadow phenomenon) commences early and permeates the entire j
testimony.
The following portions of the testimony do not relate to the matters which were revealed by the exercise, but to matters that could have been raised before, and they should be stricken:
Page 49, line.
1st question to page 52, line 15 Page 67, line 14 to page 71, line 5 Page 143, line 4 to page 248, line 3 a
Page 248, line 4 to page 262, line 14 insofar as it addresses public response to EBS messages Page 271 to page 286.
o 1
The relitigation of decided matters and the litigation of matters that could have been put into dispute in the 1983-1984 hearings is precluded by.
4 Board order.
Proffered testimony which does not depend upon the exercise should be strichen and denied admission.
(2) The Testimony Is Beyond The Scope Of 10 C.F.R. I 50.47 Offsite emergency planning is required for the plume. exposure pathway emergency planning zone (EPZ), here within an approximate ten-mile radius of the Shoreham facility.
10 C.F.R. 8 50.47(b)(1) and (c)(2).
See, ALAB-832, 23 NRC 135,146.
Almost all, of the proffered Testimony relates to speculating on what evacuation reactions might be in the future by all the inhabitants of Long Island, approximately 811,320 households plus transients, not to those in the EPZ alone.
See e g,
155, 160, 164.
Planning for the ingestion pathway is not here involved.
There are no NRC or FEMA regulations or requirements for emergency i
J, planning of evacuation beyond the EPZ.
The proffered Testimony may not be admitted for the purpose of demonstrating failure to plan for such populations and should be stricken in its entirety.
(3) Improper Use Of Depositions Throughout the ' Testimony, quotations from depositions of individuals other than the Suffolk County witnesses are used.
The use by Inter--
venors of those deposition quotations is improper.
It constitutes hearsay.
See Rule 801(c), Federal Rules of Evidence.
All such use of selected quotations from depositions should be stricken from the proffered Testimony and denied admission into evidence.
The Intervenors make no -
showing that the deponents are unavailable (Rule 804, Federal Rules 'of Evidence) and no showing as to why such carefully selected hearsay quotations are admissible.
The fact that the deponents will also be witnesses for LILCO does not make such testimony admissible.
If the improper quotations, used by Intervenors out of context, are necessary-and germane to Intervenors' direct case, they can call these persons as witnesses or, if relevant, bring out the desired _ statements on cross-examination.
However, Intervenors' search through voluminous.
depositions for a favorable phrase here and there out of context is not-i acceptable.
The depositten. quotations ~ are still excludable hearsay.
Following is a list of citations, with page numbers in the Testimony, of 1
I the deposition quotations that should be stricken: McCaffrey, pp. 43 and 44; Patterson,
- p. 54; Robinson, pp. 59 and 60; Robinson and Mileti, pp. 86-88; Rc,binson, p. 89; McCaffrey, pp. 91 and 135; and Watts and Lieberman, p.150.
(4) Hearsay Should Be Excluded Dr. Cole presents testimony on what individuals - told him in three meetings he held with persons who reside in the EPZ or elsewhere on-
-Long Island, and on the conclusions he drew from talking to those
~
people.
See Testimony at 172 ff.
Dr. Cole calls these meetings focus groups and seeks to incorporate selective parts of what was said at these meetings by unidentified persons and the conclusions he drew from those statements, into his testimony.
Id.
Hearsay, if reliable, is admissible in NRC proceedings.
Duke Power Company (Catawba Nuclear Station, Units 1 & 2), ALAB-335, 4 NRC 397 (1976). The Appeal Board has held that an expert may rely upon the work of other experts, Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319, 322 (1972), ' and this - is hearsay.
Rule 801(c), Federal Rules of Evidence, defines hearsay and Rule 803(18) provides an exemption for an expert who relies upon work of another expert.
However, the group meeting hearsay does not fit the categories of hearsay which are acceptable in NRC proceedings.
The interview statements are only out-of-context derogatory quotations by unidentified persons from personal interviews conducted by Dr. Cole. The hearsay is unreliable and certainly does not fit into the categories of hearsay permitted by the Appeal Board.
See Catawba and Point Beach, supra.
The hearsay quotations from unknown persons do not come within the exceptions permitted by Rule 803 of the Federal Rules of Evidence.
The hearsay statements of the persons in these groups is quoted at:
175-177; 181; 194-197; 202-204; 207; 210-214; 216-218; 220-221; 227-235; 237-238; 246; 269-270; 280-201; and, 283.
The testimony, at 170-240,
.=
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. l's 2
273-28f, which is based on this hearsay, is no more. reliable than the heusay itself, and must be stricken along with the. quotations.
(5) Testimony Based On Newspaper Reports of Polls Should be Excluded Testimony based on newspaper articles does not have - enough reliability to be admitted into evidence.
It 'is hearsay.
Dr. Cole's.
testimony in regard to the affect of the Chernobyl accident on the public is wholly dependent on a newspaper report of a public opinion poll.
See,-
262-270, 283-284.
Dr. Cole did not conduct the poll.
The fact that the testimony is based on a newspaper report of a poll does not make the testimony any more reliable than any other testimony based on a newspaper article and it may not be admitted.
(6) Testimony on Monitoring Residents From Outside the EPZ Should be Excluded The testimony, commencing at page 273 and going to page 286, seeks -
to demonstrate that large numbers of residents from outside the. EPZ i
would seek monitoring at reception centers.
There is no requirement to provide monitoring of such persons under Commission regulations, and, further, any issue on the need to monitor non-EP7. residents does not arise from the exercise.
This testimony is therefore irrelevant to any flaws which might be raised under Contention EX 49C concerning registering and monitoring EPZ evacuees.
b
-g-Conclusion For all of the above reasons, the noted proffered testimony of Philip Evans, Ford, Rowan, Stephen Cole, Susan C.
Sargent, Elizabeth F.
Loftus, David Harris and Martin Mayer should be stricken and denied admission into evidence in this proceeding.
Respectfully submitted, MM Charles A. Barth Counsel for NRC Staff Dated at Bethesda, Maryland this 30th day of March,1987 4
4 s
.a 00&ETED USNRC '
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 ' APR -8 P2 :38 BEFORE THE ATOMIC SAFETY AND LIC:!NSING BONk].gtgf BRANCH In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power Station,-
)
Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF MOTION TO STRIKE THE PROFFERED TESTIMONY OF SUFFOLK COUNTY ON CONTENTIONS EX 38, 39, 22F, 44, 40.C AND 49C AND TO DENY ADMISSION OF SAID TESTIMONY" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or (*) deposit through the Nuclear Regulatory Commission's internal mail system, or (**) by telecopier, this 30th day of March,1987:
i John H. Frye III, Chairman **
Joel Blau, Esq.
Administrative Judge Director, Utility Intervention Atomic Safety and Licensing Board Suite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Oscar H. Paris **
Fabian G. Palomino, Esq.**
Administrative Judge Special Counsel to the Governor Atomic Safety and Licensing Board Executive Chamber j
U.S. Nuclear Regulatory Commission State Capitol Washington, DC 20555 Albany, NY 12224 Frederick J. Shon**
Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza Washington, DC 20555 '
Albany, NY 12223 Philip McIntire W. Taylor Reveley III, Esq.**
Federal Emergency Management Donald P. Irwin, Esq.
Agency Hunton & Williams 26 Federal Plaza 707 East Main Street Room I349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212
2 Stephen B. Latham, Esq.
Herbert H. Brown, Esq.
Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.**
Attorneys at Law Karla J. Letsche, Esq.
33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor j
1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Building 2 Appeal Board Panel
- Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY 12223 Washington, DC 20555 Spence W. Perry, Esq.
Martin Bradley Ashare, Esq.
General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Dr. Monroe Schneider Robert Abrams, Esq.
North Shore Committee Attorney General of the State P.O. Box 231 of New York Wading River, NY 11792 Attn: Peter Bienstock, Esq.
Department of Law Ms. Nora Bredes State of New York Shoreham Opponents Coalition Two World Trade Center 195 East Main Street Room 46-14 Smithtown, NY 11787 New York, NY 10047 Anthony F. Earley, Jr.
William R. Cumming, Esq.**
General Counsel Office of General Counsel Long Island Lighting Company Federal Emergency Management 175 East Old Country Road Agency Hicksville, NY 11801 500 C Street, 3W Washington, DC 20472 Dr. Robert Hoffman Long Island Coalition for Safe Docketing and Service Section*
Living Office of the Secretary P.O. Box 1355 U.S. Nuclear Regulatory Commission Massapequa, NY 11758 Washington, DC 20555 Mary M. Gundrum, Esq.
Barbara Newman New York State Department of Law Director, Environmental Health 120 Broadway Coalition for Safe Living 3rd Floor, Room 3-116 Box 944 New York, NY 10271 Huntington, New York 11743 8
Charles A. Barth Counsel for NRC Staff I
v