ML20206C748

NRC Response to Suffolk County Motion to Strike Portions of Lilco Testimony on Contention Ex 50.* Response Opposes Suffolk County Motion to Strike Portions of Lilco Testimony on Contention Ex 50.Certificate of Svc Encl

ML20206C748
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/01/1987
From:	Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#287-3033 OL-5, NUDOCS 8704130153
Download: ML20206C748 (9)

Text

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3d5M April 11,1987 3 00CMETED USHRC

• UNITED STATES OF AMERICA NUCLEAR REGULATORY COB 1P.11SSION gg ;3g BFFORE TiiE ATOMIC SAFETY AND LICENSING BOARI%FRCE CF SiiHEIAN 00ChLimt; A gimu.

- BRA hui In the Matter of )

)

LONG ISLAND LIGIITING COMPANY ) Docket No. 50-322-OL-5

) (EP Exercise)

(Shoreham Nuclear Power Station, )

Unit 1) )

NRC STAFF RESPONSE TO SUFFOLK COUNTY MOTION TO STRIKE PORTIONS OF LILCO'S TESTIMONY ON CONTENTION EX 50 I. INTRODUCTION Suffolk County moved to strike portions of LILCO's testimony on Contention EX $0, on March 17, 1987. O The motion is directed to (I) portions of the testimony which deal with the FEMA review of excrcises at other nuclear plants; and (2) portions of the testimony that allegedly deal with studies withheld during discovery. Suffolk County further asks that if the motion be denied it be granted additional discovery. For the reasons set out herein the NRC Staff opposes the motion. Ilowever, the Staff believes that LILCO should be ordered to turn over all studies premising the witnesses' testimony at this time so that Suffolk County would have ample time in advance of the witnesses' testinony to review those studies.

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1/ The Staff's attorneys did not know of the motion until after the

!!oard asked for responnes by April 1, 1986, on March 30, 1987.

0704130153 070401 PDH ADOCK 05000322 G PDH j l W

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TT. DISCUSSION A. Testimony On Other FEMA-Graded Exercises The basic question in this proceeding is whether the emergency planning exercise demondrated a fundamental flaw in LILCO's emergency plan. As the Commission stated in providing for this hearing:

. . . Since only fundamental flaws are material licensing issues, the hearing may be restricted to those issues.

. . . We . . . [di:*ect) the Board to admit only those Intervenor contentions which satisfy the specificity and other requirements of 10 C.F.R. I 2.714 by (1) pleading that the exercise demonstrated fundamental flaws in LILCO's plan, and (2) by providing bases for the contentions which, if shown to be true, would demonstrate a fundamental flaw in the plan.

CLI-86-11, 23 NRC 577, 581 (1986).

Under the NRC Regulations, the findings of FEMA on off-site emergency plans are to be given serious consideration. As 10 C.F.R.

I 50.47(a)(2) provides:

, The NRC will base its findings on a review of the i Federal Er:ergency Management Agency (FEMA) findings and determinations as to whether State and local emergency plans are adequate and whether there is reasonable assurance that they can be implemented, and on the NRC assessment as to whether there is i reasonable assurance that they can be implemented...

See also Memorandum of Understanding Between NRC and FEMA Relating to Radiological Emergency Planning and Planning, 45 Fed. Reg. 82713 (December 16, 1980).

This Board faced the question of whether consideration of other i exorcises was relevant to this proceeding and stated:

LILCO correctly points out that the issue of whether this exercise constituted a full participation exercise should not be addressed in a vacuum. Indeed, we believe that information regarding the scope of other full participation exercises is necessary in order to l

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l l intelligently address that issue. While it is true that  !

4 what constitutes an acceptable full participation exercise

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for other New York plants will not necessarily establish I the standard for the Shoreham exercise, it will at a

minimum provide valuable background information. The unique aspects of the Shoreham situation must be taken into account against this background. [ Footnote deleted]

Memorandum and Order (Ruling on LILCO's Motion to compel New York t

State to Answer LILCO's First Set of Interrogatories and For a Protective l.

Order), December 19, 1986, at 5-6.

l The results of the FEMA-graded exercise at other nuclear plants appears to be a matter to be considered in determining whether the

! training lapses claimed amount to a " fundamental flaw" in the LILCO plan end whether the subject exercise was a full participation exercise.

Experience at other plants and how FEMA rated exercises at those plants illuminates the manner in which training lapses at Shoreham should be

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! weighed.

i i Suffolk County at p.6 of its motion cites prior Ecard rulings to show that experience at other plants should not be considered in evaluating the

Shoreham exercise. flowever, immediately before the cited pages the i

Board plainly indicated that it was admitting testimony on emergency

{ planning at other nuclear facilities as bearing on the sufficiency of the i

emergency planning for the Shoreham facility:

j On page 7 the objection is to Question and Answer No. 11 as being not relevant. We deny that because we find that the fact these witnesses know of

no other emergency plan that includes special measures

! dealing with the rituations set forth in Contention 96 is '

i relevant to a decision in the case.

j eee 1

l On page 14 Question 18, lines 4 through the end i of the answer, the objection is that this testimony is i

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4-e not relevant. The testimony in essence is that other emergency plans for New York nuclear power plants have been accepttd without independent backup power supplies for electromechanical ofrens.

We And that testimony to be relevant here, but certainly not dispositive of the question. Therefore, the objection to the irrelevancy is overruled and the motion to strike is denied.

eee On page 20, Question 32, lines 1 and 2, the objectior is to the relevancy of this testimony. Fe find that the type of sirens used by the majority of utilities with nuclear power plants is relevant. This motion to i strike is denied.

On page 21, Question 33, the last paragraph of the answer, the objection is to the relevar.cy of independent backup power supplies for other utilities i with the same type of sirens. Again, this is denied i because we find this to be relevant.

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' eea Tr. 5560-62 (March 30,1984). 2,/

In sum, FEMA's evaluation of training deficiencies as shown by its review of emergency planning exercises at other plants is relevant to the ,

1 issue of whether the exercise here revealed a " fundamental flaw" in the 1

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2/ The testimony Suffolk County cites as being stricken was offered to show that there were State emergency plans for other nuclear facilities in New York. It was not relevant to the subject of the

, contention which dealt with whether there was a State plan for Shoreham. The testimony was stricken on that ground. Tr.

5562-63. See also, Tr. 5563-67. These rulings are not germane to the issues here.

J Shoreham emergency plan and whether the exercise was a full participa-

! tion exercise. It should be admitted into evidence. 3_/

B. The Production of Analyses Predicating Testimony

1. The " Content Analysis" of the FEMA Report.

The LILCO testimony is based in part on a " content analysis" of the FEMA report. LILCO Testimony on Contention 50, at 21-27. Under 10 C.F.R. I 2.740(b)(2), trial preparation materials are discoverable only

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on a showing of substantial need and a showing that a party cannot obtain the material from another source. No other source appears for this

" content analysis." Since the testimony is based in part on the ,

analysis, it appears that Suffolk County has a substantial need for the i

i material in order to prepare for cross-examination and that the material should be turned over to Suffolk County, if it exists in f

documentary form. See Kerr-McGee Chemical Corp. (West Chicago Rare Earth Facility and Kress Creek Decontamination), LBP-86-7, 23 NRC 177, 178-79 (1986): g. Federal Rules of Civil Procedure, Rule 26(b)(4)(A).

j No ground, however, exists to strike testimony on this " content analysis". There would be no prejudice if this material were turned over now, long before the subject testimony is to be given. Further, the ples l F

t 3/

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No case is made for another round of discovery. In "LILCO's Response to Suffolk County, State of New York, and Town of Southampton Second Set of Interrogatories", January 5,1987, LILCO l directly stated that it " intends to rely on information from other ,

i exercises in its testimony on Contentions EX 15,16, 21 and 50." At

3. Those exercises are listed at 2-3. Furthar, in the deposition of

Mary Goodkind (the witness who sponsors the subject testimony), of j January 3, 1987, she stated that LILCO intended to rely on the

results of other exercises in its testimony on Contention EX 50. At

! 78, 96.

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l for further discovery should also be rejected. If Suffolk County felt it needed the document in the past, it should have moved the Board to l require its production under 10 C.F.R. II 2.740 and 2.741 Having not done so it cannot say it wishes to take additional discovery on this analysis, and further delay this "eypedited" proceeding.

2. Testimony on NUREG/CR-3524 Suffolk County claims a failure to mention a paper, "Organisational Interface in Reactor Emergency Planning and Organisation,"

NUREG/CR-3524, during depositions should lead to a striking of testimony which refers to that document on the ground that the witnesses, during depositions, failed to disclose the basis or the theories behind their testimony. However, the witnesses did disclose, during their deposition, the bases and theories behind their testimony insofar as they are re!cvant to NURE0/CR-3524. Dr. Milett indicated in his deposition that he saw hit. testimony on Contention EX 50 focusing on the organisational offectiveness of LILCO to achieve the goals of emergency management.

Milet! Deposition, Jan. 8,1987, eg , at 117-18, 122-23, 148, similarly.

Dr. Lindell also stated his testimony would deal with the organisational effectiveness of LILCO in carrying out emergency planning. Lindell i Deposition, February 5,1987, eg, at 8, 93, 95,101,189. Organlaational i effectiveness in carrying out craergency planning, as the title of  !

NUREG/CR-3524 reveals, is the subject of NURE0/CH-3524. See also Li!,CO's Testimony on Contention EX 50, at 14-15. The Intervenors were thus informed that organlaational effectiveness and organisational I intra-action, the subject of NUMEG/CH-3524 would be a basis of the testimony on Contention EX 50.

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e There was no failure to elucidate the projected basis of the testimony or the theories behind the testimony in the depositions, and no basis exists to strike the proffered testimony that deals with organizational offectiveness, orgsnfzational interrelations, and emergency response and NUREG/CR-3524. O

!!!. CONCLUSION Tor the reasons set forth above, Suffolk County's motion to strike portions of LILCO's testimony on Contention 50 or in the alternative for further discovery should be denied. However LILCO should be ordered to turn over to Suffolk County copies of the " content analysis" and copies of any analysis premised on ?"1RE0/CR-3524, if they exist in documentary I

form.

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Respectfully submitted, M

Edwin J ein Depu Assistant General Counsel t Hethesda, Marylatut Dated this M a#

d ay of April,1987 l ,

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As the basta of the witnessen' testimony on Contention EX 50, organlaational effvetiveness and intra-action was elucidated during i discovery, the claims of surprise are ill-founded: and no further l dincovery should be allowed.

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e 00LMETED ustec UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I y -s P2 39 '

BEFORE THE ATOMIC SAFETY AND LICENSING BOARhF l

In the Matter of ) ,

)

LONO ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-5

) (EP Exercise) l (Shoreham Nuclear Power Station. )

! Unit 1) ) <

1 CE!!TIFICATE OF MERVICE  !

i I hereby certify that copies of "NRC STAFF RESPON8E TO SUFFOLK COUNTY MOTION TO STRIKE PORTIONS OF LILCO'8 TESTIMONY ON CONTENTION EX 50" in the above-captioned proceeding have been served on the following by deposit in the United States mail. first class, or l (*) depoalt in the Nuclear Regulatory Commission's internal mall system, or (") hand delivery, this 1st day of April,1987: r John H. Frye Ill, Chairman ** Joel Blau, Esq.

Administrative Judge Director. Utility Intervention Atomio Safety and Licensing Board fluite 1020 U.S. Nuclear Regulatory Commission 99 Washington Avenue Washington, DC 20555 Albany, NY 12210 Oscar !!. Paris" Fahlen O. Palomino, Esq."

Administrative Judge special Counsel to the Oovernor l Atomic finfety and Licensing Board Executive Chamber '

U.S. Nuclear Regulatory Commission State Capitol Washington, lic 20555 Albany, NY 12224 i

Frederich J. Bhon" Jonathan D. Feinberg. Esq.

Administrative Judge New York 8 tate D6partment of Atomic Safety and Licensing Hoard Public Servloe  ;

U.S. Nuclear Regulatory Commission Three Empire 8 tate Plasa '

Washington, DC 20585 Albany, NY 12223 l Philip McIntire W. Taylor Reveley III, Esq.**

Federal Mmergency Management Donald P. Irwin, Esq.

Agency l'unton 6 Williams 26 Federal Plasa 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10274 Richmond, VA 23212

4 i Stephen B. Latham, Esq. Herbert H. Brown, Esq.

l Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.**

l Attorneys at Law Karla J. Letsche. Esq.

33 West Second Street 1;irkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor l ,

1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel

• U.S. Nuclear Regulatory Commission Jay Dunkleherger Y'ashington, DC 20555 New York State Energy j Oflice i

Atomic Safety and Licensing Agency Building 2 l Appeal Board Panel

• Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY 12223 Washington, DC 20555 Spence W. Perry, Esq.

P.fartin Bradley Ashare. Esq. General Counsel Suffolk County Attorney Federal Emergency Management

11. Loc Dennloon Building Agency Veteran's Memorial !!!ghway 500 C Street. SW I Hauppauge, NY 11788 Washington, DC 20472 Dr. Pfonroe Schneider Robert Abrams, Esq.

North Shore Committee Attorney General of the State P.O. liox 231 of New York Wading River, NY 11702 Attn Peter Blenstock. Esq.

Department of Law Ms. Norn Hredes State of New York Shoreham O ?ponents coalition Two World Trade Center 105 East Ma n Street Room 46-14 Smithtown, NY 11787 New York, NY 10047 Anthony F. Earley, Jr. William R. Cumming, Esq."

General Counsel Ofnce of General Counsel Long Island Lighting Company Fedcral Emergency f,1anagement 175 East Old Country Hoad Agency filcksville, NY 11801 500 C 8treet, SW Wanh!ngton, DC 20472 Dr. Robert Hoffman Long Island Coalition for Safe Docketing and Service Section*

Living Office of the Secretary I'.0. Ilox 1355 U.S. Nuclear Hegulatory Comninnion Massapequa, NY 11758 Washington, DC 20555 Mary M. Gundrum Esq. liarbara Newman New York State Departmont of Law Director, Environmental llealth 120 Hroadway Coalition for Nafe Living 3rd I'loor Room 3-116 Hox 044 Now York, NY 10271 Huntington, New York 11743 hS _

Edwin J. Iple Deputy ,Maintant deneral Counsel