ML20206S776

Memorandum & Order (Ruling on Lilco & Staff Motions to Strike Suffolk County Testimony on Contentions Ex 38,Ex 39, Ex 22F,Ex 44,Ex 40C & Ex 49C).* Lilco Motion Re Preexisting Fear Granted.Served on 870420

ML20206S776
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/17/1987
From:	Frye J, Paris O, Shon F Atomic Safety and Licensing Board Panel
To:	LONG ISLAND LIGHTING CO., NRC OFFICE OF THE GENERAL COUNSEL (OGC), SUFFOLK COUNTY, NY
References
CON-#287-3160 86-533-01-OL, 86-533-1-OL, LBP-85-12, OL-5, NUDOCS 8704230051
Download: ML20206S776 (11)

Text

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. 3%d DOCKETED MC UNITED STATES OF AMERICA NUCLEAR REGULATORY COPNISSION l ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges gic,Eg,{Egt,Jg John H Frye, III, Chaiman Dr. Oscar H. Paris Mr. Frederick J. Shon SERVED APR 201987 In the Matter of Docket No. 50-322-OL-5 (EPExercise)

LONG ISLAND LIGHTING COMPANY (ASLBP No. 86-533-01-OL)

(ShorehamNuclearPowerStation, Unit 1) April 17, 1987 MEMORANDUM AND ORDER (Ruling on LILC0's and Staff's Motions to Strike Suffolk County's Testimony on Contentions Ex 38. Ex 39, Ex 22F, Ex 44, Ex 40C, and Ex 49C)

On March 30 and April 6 respectively, Staff and LILCO filed motions to strike the above testimony. These motions raise a variety of arguments. We heard Suffolk County's oral response and the argument of all the parties on April 8.

Both motions attack Suffolk's attempt to introduce a survey,

" Reaction of Long Island Residents to LILC0's Response to an Accident at the Shoreham Nuclear Power Plant", prepared by Social Data Analysts, 8704230051 PDR 870417 O ADOCK 05000322 PDR 350p

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Inc. in February of this year.I This survey consisted of interviews with 492 residents of Nassau County, 629 residents of Suffolk County residing outside the EPZ, and 379 residents within the EPZ.2 The questions used in the survey were based on LILCO's responses during the exercise, particularly the first, second, fifth, and seventh EBS messages. Although the survey notes that the EBS messages were too long and complex to use in their entirety, the actual wording was either used in its entirety or faithfully summarized.3 Dr. Stephen Cole, President of Social Data Analysts Inc. and the sponsoring witness for the survey, describes its purpose as follows:

The aim of the survey was to find out what Long Island residents would do if there were an accident at Shoreham to which LILCO responded by preparing and broadcasting the successive EBS messages used during the Exercise. Thus, while in the past, research conducted on Long Island concerning the reaction of residents to a potential nuclear accident at Shoreham was necessarily more general and based upon hypothetical protective action advisories, this time LILCO's actual demonstrated response to a Shoreham accident--that performed on the day of the Exercise--was available and was used in the survey. ... [T]he purpose of this survey was to obtain some general estimates of the size of the group that would evacuate, in response to the actual messages--including their tone and situation-specific information--which LILCO showedduringthegxerciseitwouldusetorespondtoareal Shoreham accident.

1 See Attachment 14 to Suffolk's testimony on these contentions.

2 M. at 6.

3

. at 10-14.

4 Prefiled testimony of Stephen Cole, e_t al... at 153.

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Thus the survey addresses the so-called " evacuation shadow phenomenon" which LILC0 and Staff correctly maintain was litigated earlier and disposed of in the Partial Initial Decision (PID).5 Suffolk seeks to avoid the consequences of this fact by relying on the fact that this latest survey utilizes the EBS messages actually employed during the exercise.6 Earlier poll results were considered in PID and were judged to confirm that a pre-existing fear of radiation existed in the population surrounding Shoreham.7 In addition, the PID concluded with regard to polls as follows:

The polls, however, did not and could not supply respondents with the urgent tone and situation-specific infomation that would be publicly available in a real emergency. The missing information is precisely that which LILC0 says it will disseminate in an emergency. All of the the polls, therefore, treated the public as if it was likely to act in a simple stimulus-response mode and that all that was necessary was to measure degrees of response. ... None of the polls measured likely public response under LILCO's plan to manage the response by broadcasting situational information at the time of an emergency. The most the polls show is that the projected response is likely if there was no information disseminated. Without the inclusion of the information in the questions the Board cannot attribute literal predictive value to the results. ... The more reasonable conclusion is simply that the stated intention to evacuate in the future is a surrogate for currently held beliefs and attitudes that are based on scant current knowledge. These attitudes have not been influenced, however, by the additional information that 5 LBP-85-12,21NRC644,655-71(1985).

6 See statement of Karla J. Letsche, counsel for Suffolk, in opposition to the motions. Tr. 3082-91.

7 LBP-85-12, 21 NRC 644, 666 (1985).

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would become available at the time of an accident. The poll results have no literal predictive validity because the residents of Suffolk and Nassau Counties do not now have that additional information that respondents determine their actions in an emergency.gould need to The poll which Intervenors now seek to introduce as evidence was based on the infonnation contained in the EBS messages broadcast during the emergency exercise. To the extent that the exercise simulated reality, the poll, if properly conducted and analyzed, should tell us how the public would have responded to LER0's EBS messages.

The PID also concluded, with regard to emergency messages, as follows:

The ability of LILC0 to manage an offsite emergency response is heavily dependent on its ability to frame appropriate messages and to disseminate them to the public. We find here only that LILCO has taken account of the need for public notification and has prepared to meet that need. ... If for any reason confused or conflicting information was disseminated at the time of an accident, the Board accepts that a large excess evacuation on Long Island could materialize.g The post-exercise poll now offered as evidence may provide a quantitative evaluation of the extent to which the EBS messages broadcast during the exercise provided information which the public regarded as confusing or conflicting. It also may go to LILCO's ability to frame appropriate messages and to disseminate them to the public, and 8

M.at666-7.

9 M.at670.

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hence reflect on LILC0's ability to manage an offsite emergency response.

We conclude, therefore, that the testimony on the post-exercise poll now offered by the Intervenors is directly relevant to the admitted sentence from EX 44. It should be adnitted and subjected to the test of cross examination, from which this Board can detemine the weight to be given it. Therefore the motions to strike the poll testimony are denied.

LILCO also specifically objects to Suffolk's testimony on  ;

preexisting fears of radiation which exist in the population.10 g, LBP-85-12 considerable consideration was given to this topic. There it was concluded that:

Pre-accident fear of radiation exists in the general population. ... Pre-accident fear of radiation is not by itself a direct cause of evacuation in a radiological emergency. Instead, this fear helps shape how people use information and perceive the threat during an accident. ...

We adopt this finding from LILCO's testimony because of its reasonableness and because we do not accept the notion that people caught in an emergency situation simply abandon reason and respond blindly to the preexisting fear. The Board can hardly imagine that anyone would evacuate in a radiological emergency unless fear of radiation preexisted as part of the common knowledge. However, we concluded that reasonable people need and will seek information on which to base their actions, particularly in the urgent conditions of emergency.

If the information is inadequate or conflicting, they may act inappropriately. If it is complete and consistent, they will accept it and use it as intended. ...

10 While Staff does not specifically identify this topic, it seems clear that Staff also objects on the ground that it was previously litigated.

t The Board's reasoning does not discount the reasons cited by Suffolk County in support of the proposition that considerable fear of radiation exists among members of the public. ... We agree that fear exists. The evidence, however, does not override all other information given during an emergency.31 From the :beve, it is evident that the question of preexisting fear has been litigated. The only question remaining for this limited proceeding is whether infonnation furnished by LILCO during the exercise was inadequate or conflicting. This is consistent with our October 3 Prehearing Conference Order in which we indicated that the substance of Contention Ex 22F, the only Contention in this group of contentions which raises the preexisting fear issue, would be dealt with under Contentions Ex 38 and Ex 39 and need not be separately admitted.

Indeed, Contention Ex 22F raises this issue only as one of six cited reasons why an evacuation shadow would occur in a real emergency. This is hardly sufficient ground to relitigate this issue under the umbrella of contentions which challenge the sufficiency of LILCO's public infonnation during the exercise.12 Therefore LILCO's motion is granted with respect to preexisting fear.

11 LBP-85-12, 21 NRC 644, 662-63.

I Counsel's ar ument to the contrary assumes that Contention Ex 22F was separate y admitted, which is not the case. Further, it ignores the fact that the Board accepted in LBP-85-12 Suffolk's position that preexisting fear will motivate people to evacuate.

The question remaining for this part of the proceeding is whether LILC0 demonstrated in the exercise that it could provide clear and nonconflicting infonnation to the public.

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LILCO and Staff object to the testimomy that recounts the results of certain so-called " focus group" sessions conducted by Dr. Cole.

Dr. Cole explains the purpose of the focus groups as follows:

... in order to understand better the essential quantitative answers given by the sample of Long Island resident who responded to the survey, I conducted some qualitative group interviews, sometimes called " focus groups." Perhaps one of the most important conclusions to be drawn from an analysis of the transcripts of the focus groups is that the EBS messages prepared by LILC0 and used during the Exercise bring out deep-seated fear of being exposed to radiation released during an accident at Shoreham, a fear which g held by a significant segment of the Long Island population.

LILC0 raises three objections to this testimony: first, that just as the surveys cannot now be used to predict the public's response to an emergency, neither can focus groups; second, preexisting fears of radiation have already been the subject of litigation so that focus l

group studies may not be offered for this purpose; and third, the focus group studies carry no semblance of statistical validity and consequently are suspect. Staff takes the position that these studies are hearsay which does not fit within any of the categories of hearsay which are admissible in NRC proceeding.

Counsel for Suffolk offered a somewhat different basis for admitting the focus group studies than that put forkord in Dr. Cole's 13 Testimony of Dr. Stephen Cole at 171-72.

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4 testimony. Counsel described them as being offered to show to show that LILC0's public announcements were likely to confuse the public.14 Because preexisting fear is not admissible, it follows that testimony on the focus group studies is inadmissible as supporting evidence on preexisting fear. To the extent that the focus group testimony addresses the survey results, however, it is admissible as supporting evidence. Moreover, we disagree that the focus group results are inadmissible hearsay; indeed, results from interviews constitute basic data in sociological research. Like the poll results, the focus group results can be tested by cross examination. Then we will be able to judge precisely how much weight should be given the evidence. The motions to strike the focus group studies are denied in part and granted in part.

Staff objects to the use of quotations from depositions in Suffolk's testimony, on the ground that they constitute impermissible hearsay. Counsel for New York State pointed out that the deposition references to which Staff objects are not the only such references that have been made by the parties and suggested that it would be appropriate to treat the references in question as hypotheticals subject to later connection when the witnesses in question appear.15 Counsel's suggestion is meritorious and is consistent with the Board's treatment 14 See Tr. 3101.

15 See Tr. 3106.

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l of similar problems in this phase of the proceeding. To the extent than any party's references to depositions are questioned on cross, the references will be treated as hypotheticals subject to connection to facts of record. Staff's motion in this regard is denied.

Staff also objects to some of Dr. Cole's testimony which it believes is based on newspaper polls and to testimony concerning the monitoring of persons from outside the EPZ. Staff's objections are largely moot in light of our rulings which appear below. To the extent that they are not moot, they are denied. While the polls in question were done for Newsday, Counsel infonns us that they were done by Dr. Cole.16 In addition, Staff has lodged a general objection to the effect that the testimony "... relates to speculation on what evacuation reactions might be in the future by all the inhabitants of Long Island,

... not to those in the EPZ alone."I We have reviewed the testimony and do not find Staff's objection meritorious; it is denied.

In our review of the testirrony, it became apparent that a substantial portion was based on an erroneous interpretation of the status of Contention EX 22F and some of the matters decided in the PID.

We noted above that, contrary to Suffolk's position, we had not admitted Contention EX 22F. Just as the reference in that contention to preexisting fear is not sufficient to justify relitigating that issue, 16 See Tr. 3108-09.

17 See motion, p. 5.

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the contention's reference to LILC0's credibility does not justify relitigating the latter. Consequently, we are sua sponte striking the portions of Suffolk's testimony (as indicated in the Attachment) which raise again the credibility and preexisting fear issues and which inject a new element (the Chernobyl accident) that is unrelated to the exercise.IO Finally, we wish to draw the parties attention to the fact that all the testimony stricken by the Memorandum and Order is striken because it is beyond the scope of this phase of the proceeding. Thus LILCO and FEMA should review their testimony and excise any on the same topics.

It is so ORDERED.

THE ATOMIC SAFETY AND LIC ING BOARD Y

Fr8derick J. Shon V

ADMINISTRATIVE GE (Ub Oscar H. Paris ADMINISTRATIVE JUDGE

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John H.(Frye, III, Chairman M ISTRATIVE JUDGE Dated in Bethesda, Maryland  ;

this 17th day of April,1987.  !

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10 In order to provide the parties with advance notice of our rulings, a message was Rapifaxed to them on Thursday afternoon, April 16, 1978. A copy of that notice is attached. It states our rulings in detail.

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ATTACHMENT h s

April 16, 1987 Rapifax message for parties to Shoreham OL-5 proceeding:

LILCO's and Staff's motions to strike Suffolk's testimony on Contentions EX 38, EX 39, EX 22.F. EX 44, EX 40.C and EX 49.C are granted as follows:

1. The testimony referenced on page 6 of LILCO's motion pertaining to preexisting fears is stricken; and

2. The testimony concerning the focus group interviews is stricken to the extent that it relates to preexisting fears.

In all other respects, the motions are denied.

The Board has reviewed the testimony and sua sponte strikes the following:

1. Beginning at the last paragraph on page 223 through the carryover paragraph on page 241;

2. Beginning at the first full paragraph on page 248 through ,

page 254;

3. Beginning at the second full paragraph on page 262 through page 270;

4. Beginning at the first paragraph on page 276 through page 278; and

5. Beginning at the first paragraph on page 280 through the

second paragraph on page 286.

A Memorandum and Order will issue tomorrow, April 17, explaining the Board's rulings.

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