ML20206T156

Suffolk County & State of Ny Motion to Compel Lilco to Provide Sources of Data Relied Upon in Testimony.* Requests Lilco Provide Info Requested in Suffolk County Re Evacuation Plan.Certificate of Svc Encl

ML20206T156
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	04/13/1987
From:	Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20206T059	List: ML20206T053 ML20206T156
References
OL-3, NUDOCS 8704230124
Download: ML20206T156 (13)

Text

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DOCKETED Aprilif,1987 17 MH 21 P4 59 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION , _, ,

GCC8 L i e. . 'd" 11.

Before the Atomic Safety and Licensina Board "

)

In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power )

Station, Unit 1) )

)

SUFFOLK COUNTY AND STATE OF NEW YORK MOTION TO COMPEL LILCO TO PROVIDE SOURCES OF DATA RELIED UPON IN TESTIMONY By letter of April 2, 1987, counsel for Suffolk County requested counsel for LILCO to provide information and documents pertaining to certain data relied upon in LILCO's testimony and which were not previously provided to Suffolk County and the State of New York (the " Governments") in discovery. On April 3, 1987, LILCO refused to provide certain of the information requested by the County. For the reasons set forth below, the Governments hereby move this Board to compel LILCO to provide the requested information.

8704230124 870413 PDR ADOCK 05000322 g PDR

BACKGROUND On March 30, 1987, LILCO submitted to the Board and the parties its written testimony on the reception center issues

("LILCO Testimony").

One of the issues addressed in the-LILCO Testimony is the number of people which LILCO is capable of monitoring. In support of the testimony on this issue, one of LILCO's witnesses, Mr. Daverio, offers certain data regarding the number of people who can be monitored within 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> at other reception centers.

These data purport to show that at some reception centers, there is a capacity to monitor 100% of the EPZ population, while at other reception centers there is a lesser capability. LILCO Testimony at 12. According to Mr. Daverlo, the data are based on " contacts made by my staff with County and utility personnel at several sites." LILCO Testimony at 12.

From these " contacts" he apparently developed the table which is set forth on page 12 of the LILCO Testimony.

As LILCO had not previously produced the data reflected on page 12 of its Testimony (although those data clearly fell within the scope of earlier discovery requests),l/ counsel for the County, by letter of April 2, 1987, requested LILCO to identify the source of the data and to provide all documents reflecting those data. Egg Attachment 1. By letter of April 3, 1987, counsel for LILCO provided two documents (which do not appear to 1/ Indeed, on grounds ofthe data work had been withheld by LILCO during discovery product. Egg Attachment 2.

be fully responsive to the County's request) but refused to identify the source of the data regarding monitoring capabili-ties. Egg Attachment 2. The ground on which counsel refused to provide the information was that disclosure of the source of the data "might subject individuals to harassment and intimidation."

Attachment 2 at 1.

LILCO's asserted grounds are baseless. In effect, LILCO is attempting to introduce hearsay evidence into the record and then preclude the Governments from inquiring into the reliability of that hearsay. Such LILCO efforts to obstruct appropriate discovery and to hinder meaningful cross-examination cannot be condoned. We are filing this motion in order to obtain the necessary data. If the data are not produced, however, the testimony will clearly need to be struck.

DISCUSSION LILCO is attempting to buttress its argument that it need not have the capability to monitor the entirety of the EPZ popu-lation by arguing that at some other reception centers, there is less than 100% monitoring capability. The Governments have already stated their position to the Board regarding the relevance of evidence about reception centers at plants other than Shoreham. However, if such data are nevertheless admissible, the Governments must be provided the opportunity to

- -_ _ . =

explore fully the accuracy and reliability of such data. This is particularly so here, where LILCO is relying on " contacts" with unspecified sources in order to support its position. Such hearsay evidence, if not stricken from the record entirely in upcoming motions to strike, nevertheless is of questionable reliability. In light of that fact, the Go'rernments have the right to explore the validity of LILCO's data, but are being den-ied thnt right by LILCO's intransigence.

LILCO's stated position that disclosure of the sources of its data may subject those sources to harassment or intimidation is utter nonsense. The Board should note that LILCO does not claim that its sources fear intimidation or harassment, or that they have asked for anonymity; LILCO has just taken it upon itself to assert the argument on its own. The Governments may or may not contact the unnamed LILCO sources; but if they do, it will not be for the purpose of harassment or intimidation.

Rather it would be to inquire into the bases for the data and to perform the sort of investigation which is normal and accepted in all forms of litigation.

i The April 3, 1987, letter from LILCO's counsel also asserts that the County and the State have access to information about I

the capabilities of other reception centers and therefore have no substantial need to get the information which they are seeking from LILCO. This is beside the point. Certainly, the County and i

the State have access to information about the capacity of the reception centers and are likely to introduce such information l at trial (assuming the Board rules such data are relevant). The result will be that the Board is confronted with conflicting evidence; LILCO says one thing and the Governments say another.

How can the Board decide which data to give greater weight? The answer is that the Board must permit the parties to explore the reliability of the data on which the other parties rely. This can only be done fairly if the Governments have the information they need to investigate the validity of LILCO's data.

It should also be noted that because the LILCO data were withheld from the Governments until several weeks after the close of discovery, the Governments had no opportunity to explore the validity of those data, or of the documents provided with LILCO's April 3 letter. This makes the need for the information sought by the Governments all the more compelling.

In summary, LILCO is attempting to inject evidence into this hearing without having the reliability of that evidence scruti-nized by the parties and by this Board. LILCO's attempts in this regard are improper and must be rejected by this Board. A party has no right to introduce hearsay data, to hide the source of the data, and nevertheless to ask the Board to rely on such data.

Accordingly, the Board should rule also that if LILCO refuses to divulge the data, its testimony on those matters will be struck.

I CONCLUSION For the foregoing reasons, Suffolk County hereby requests that LILCO provide the information requested in the County's April 2, 1987, letter.

Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 v , . .

Lawrence C. Lanpher Christopher M. McMurray David T. Case KIRKPATRICK & LOCKEART 1800 "M" Street, N. W.

South Lobby - Ninth Floor Washington, D. C. 20036-5891 Attorneys for Suffolk County f

/$. 11a d A t Q Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorney for Governor Mario M. Cuomo and the State of New York l

April 13, 1987 i

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Attachmtnt 1 KIRKPATRICK & LOCKHART SOUTH lob 8Y fTH Floor ExcHApos PLAct 1800 M STRFET. N.W.

WASHINGTON, D.C. 200 % 5891 sin 3274oo0 H28 BluCKE11 AVENUE MLAMI, FL 3313I TELEPHONE 00D 77&9000 005) 3744til TELEX *ece KL DC Ut uco ouvEn autDog)

TELECOPER 004 77&9100 MTT38URCH, PA 15222 5379 CHRISTOPHER M. McMURRAY "

004 7769054 April 2, 1987 VIA TELECOPY James N. Christman, Esquire Hunton and Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212

Dear Jim:

We have received and reviewed LILCO's reception center testimony and find that certain analyses and documents referenced in the testimony have not yet been provided to us.

First, on page 12 of the testimony, Chuck Daverio discusses monitoring capacities at certain plants based on " contacts made by [his) staff with county and utility personnel at several cites." Please identify the county and/or utility personnel contacted with respect to each site, the date such contact was made, and by whom such contact was made. In addition, please provide all documents reflecting such contacts.

Second, on page 18 of LILCO's testimony, Michael Lindell discusses two studies. The first study discussed appears to be his survey of University of Washington students for which we have previously requested, but not yet received, all underlying documentation. With respect to the second (follow-up) study, please provide all documents pertaining to that study to the extent that they were not already turned over either in Doctor Lindell's deposition or in your recent production of further documents from Doctor Lindell.

Third, in light of your letter of March 17, I was surprised to find that Doctor Mileti has, in fact, conducted certain analyses for the purpose of supporting his testimony. Please provide all of the data collected by Doctor Mileti regarding tourist activities in Las Vegas during the atomic bomb tests and all documents reflecting such data. Also, please provide the

KIRKPATRICK & LOCKHART James N. Christman, Esquire April 2, 1987 Page 2 data referred to by Doctor Mileti regarding property values in the Three Mile Island area and all documents reflecting those data.

Fourth, on page 30 of LILCO's testimony, Edward Lieberman cites his most recent analysis of traffic congestion which is referred to as KLD TR-201. While we have received the final report for KLD TR-201, which was attached to LILCO's testimony, we have not yet received the documents reflecting his further analyses, which were within the scope of our earlier request to you for such analyses. We cannot, of course, conduct an adequate review of KLD TR-201 without the underlying data.

Finally, I have reviewed the documentation already provided to us by LILCO and do not see a copy of the information sheet which the traffic guides are supposed to hand out to arriving evacuees. Please provide a copy of that information sheet immediately.

The above documents and information are necessary in order for us to review and analyze the LILCO Plan and LILCO testimony adequately.

this request.

Therefore, I appreciate your prompt attention to Yours truly,

/.

Christopher M. McMurray CMM/ mas

Attachment 2 Huwrox Sc WILLIAMS 707 East MMN STREET P.O. Som 1535 8000 pt ==sv6 vama avc =ve. = w e o toa.se3o Recuwown. VamonwsA eoese soo ,a..a. =ve was==oto= o e aoose =cw von.o ac. ,oen soos, 736t*=oses ace oss esoo f ascamo=c aia see sooo TccennoNE 804 788 8200 trosa ea4s4e ww=? we remet womes=.a sa=a towe n TE L E m 6 844251 e o aos Sees onc

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,aearam, vemo mia aeoso mesomwe6Lt. tresat sset steos f t6 -on. ,os asa as tatape.ons ses est ease res m. 24566.300001 o...ev osas no .o. ... 7 2 7 8 April 3, 1987 VIA TELECOPY Christopher M. McMurray, Esq.

Kirkpatrick & Lockhart South Lobby - 9th Floor 1800 M Street, N.W.

Washington, D.C. 20036-5891

Dear Chris:

This letter responds to your latest request for information; we received it at 5:00 p.m. yesterday and so could not make much progress on responding to it until today.

First, the basis for the statement on page 12 of LILCO's testimony about " contacts made by [Mr. Daverio's] staff with county and utility personnel" are the documents identified as Nos. 5 and 6 in Section III of LILCO's Responses and Objections (dated February 4, 1987) to your first set of interrogatories.

As we said then, both documents are work product; however, we are enclosing them for you in order to avoid a needless dispute. We have redacted the names of individuals from the first of the documents. Your latest request seems aimed at the identity of the people contacted, and we object to producing those names on the grounds stated in our February 4, response to your Interrogatory No. 12, particularly the ground that disclosure might subject individuals to harrassment and intimidation. We might add that, since LILCO's testimony names the counties, and since your client and the State surely have better access to information about the capabilities of those counties than LILCO has, we do not believe you can show any substantial need to get this information from LILCO.

Second, Dr. Lindell has informed us that he does not have access to the raw data files for the first study mentioned in his testimony; the data are stored on a computer at Battelle Memorial Institute. If the data and figures in the Nuclear Safety article are not sufficient for your purposes, Dr. Lindell says that it

1 H UNTON & WILLI AM S Christopher M. McMurray, Esq.

April 3, 1987 Page 2 would be possible to hire someone at Battelle to run all the data on the computer. Please let us know if you wish to bear this expense.

As you know, Dr. Lindell's second study has not been completed. Thus far, we have provided you his summary sheet containing the results of the frequency analysis. This sheet contains all the data Dr. Lindell will be looking at in preparing his manuscript. To copy the frequency data themselves would be difficult, because it would require separating print-out pages that may have data written on the perforated edges. If you feel that the summary sheet is not adequate and that you need the raw data as well, Dr. Lindell can have the six diskettes containing the key-punched data copied, at your expense, and sent to you for your own analysis.

Third, apparently you have misconstrued Jim Christman's letter of March 17, 1987. Dr. Mileti has not conducted additional analyses in support of his testimony. Rather, the data you request are from studies he conducted several years ago, which came to our attention the week-end of March 21. We anticipate having these data, or a citation to where they are publicly available, for you on Monday.

Fourth, as we discussed earlier today, the underlying data for KLD TR-201 will be produced for you on Monday, since you indicate you cannot use them stored on a disk, which could be provided to you tomorrow. Consistent with our past arrangements, we will expect Suffolk County to cover the cost of reproducing the documents.

Fifth, LILCO has not yet written the information sheet to be disseminated to evacuees at the reception centers, i

I hope this answers the questions raised in your letter of yesterday. If you have any further inquiries, please let us know.

Sincerely,

/ -

Mary Leugers 443/735

cc: James N. Christman, Esq.

l Stephen W. Miller, Esq.

• e DOCKETED USNBC Aoril 13, 1987 17 MH 21 P4 :59 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OfflCE CF 1.nt !ar" Before the Atomic Safety and Licensino Board $ffhC

)

In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the SUFFOLK COUNTY AND STATE OF NEW YORK MOTION FOR RESCHEDULING OF RELOCATION CENTER HEARING TO COMMENCE UPON COMPLETION OF EXERCISE LITIGATION and the SUFFOLK l

COUNTY AND STATE OF NEW YORK MOTION TO COMPEL LILCO TO PROVIDE SOURCES OF DATA RELIED UPON IN TESTIMONY have been served on the following this 13th day of April, 1987 by United States mail, first class, except as otherwise noted.

Morton B. Margulies, Esq., Chairman

• Joel Blau, Esq.

Atomic Safety and Licensing Board Director, Utility Intervention U.S. Nuclear Regulatory Commission N.Y. Consumer Protection Board Washington, D.C. 20555 Suite 1020 Albany, New York 12210 Dr. Jerry R. Kline* William R. Cumming, Esq.

Atomic Safety and Licensing Board Spence W. Perry, Esq.

U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C. 20555 Federal Emergency Management Agency 500 C Street, S.W., Room 840 Washington, D.C. 20472

Mr. Frederick J. Shon* Anthony F. Earley, Jr., Esq.

Atomic Safety and Licensing Board General Counsel U.S. Nuclear Regulatory Commission Long Island Lighting Company Washington, D.C. 20555 175 East Old Country Road Hicksville, New York 11801 Ms. Elisabeth Taibbi W. Taylor Reveley, III, Esq.*

Clerk Hunton and Williams Suffolk County Legislature Post Office Box 1535 Suffolk County Legislature 707 East Main Street Office Building Richmond, Virginia 23212 Veterans Memorial Highway Hauppauge, New York 11788 Mr. L. F. Britt Stephen B. Latham, Esq.

Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.

195 East Main Street 1717 "H" Street, N. W.

Smithtown, New York 11787 Washington, D.C. 20555 Mary M. Gundrum, Esq. Hon. Michael A. LoGrande New York State Department of Law Suffolk County Executive 120 Broadway, Third Floor H. Lee Dennison Building Room Number 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite "K" Post Office Box 231 San Jose, California 95125 Wading River, New York 11792 Martin Bradley Ashare, Esq. Fabian G. Palomino, Esq.*

Suffolk County Attorney Richard J. Zahnleuter, Esq.

Bldg. 158, North County Complex Special Counsel to the Veterans Memorial Highway Governor of the State Hauppauge, New York 11788 of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Mr. Jay Dunkleburger Richard G. Bachmann, Esq.*

New York State Energy Office U.S. Nuclear Regulatory Comm.

Agency Building 2 Washington, D. C. 20555 Empire State Plaza Albany, New York 12223

David A. Brownlee, Esq. Mr. Stuart Diamond Kirkpatrick and Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 West 43rd Street New York, New York 10036 Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771 Chfi'sto[5hFr M. McMurray David T. Case

KIRKPATRICK & LOCKHART 1800 "M" Street, N. W.

South Lobby - Ninth Floor Washington, D. C. 20036-5891

• Via Hand Delivery April 13, 1987 I

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