ML20210C116
| ML20210C116 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 04/30/1987 |
| From: | Mcmurray C KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20210C122 | List: |
| References | |
| CON-#287-3347 OL-3, NUDOCS 8705060084 | |
| Download: ML20210C116 (23) | |
Text
t 3 347 AbYEIIGO, 1987 ut.in:
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 77 ggy _g gg;$$
Before the Atomic Safety and Licensino Board GFFICE 3-5ho iu '
00CKETiriG t T EvacF.
BRAHUi
)
In the Matter of
)
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Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY
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(Emergency Planning)
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(Shoreham Nuclear Power Station,
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Unit 1)
)
)
RESPONSE OF SUFFOLK COUNTY TO LILCO'S MOTION TO STRIKE THE TESTIMONY OF STEPHEN COLE, ET AL.
On April 13, 1987, Suffolk County (" County") submitted the Testimony of Stephen Cole, Susan C. Saegert, James H. Johnson, Jr., David Harris, Martin Meyer, Gregory C. Minor and Steven C.
Sholly on the adequacy of the planning basis for the three LILCO reception centers
(" Cole et al. Testimony").
LILCO's Motion to Strike Testimony of Stephen Cole, et al.
(" Motion To Strike"),
filed on April 18, 1987, seeks the exclusion of extensive sections of the Cole et al. Testimony.
For the reasons discussed below, LILCO's Motion to Strike is groundless and must be denied in its entirety.
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I.
INTRODUCTION LILCO's Motion to Strike consistently mischaracterizes the nature and purpose of the Cole et al. Testimony.
Indeed, it is evident from the Motion to Strike that LILCO's primary strategy is to attempt to mislead the Board into believing that the issues raised by the County's witnesses in their testimony have been previously addressed.
LILCO tries to accomplish this goal by improperly defining the Cole et al. Testimony as falling under the " generic" rubric of the evacuation shadow phenomenon.
Having set up this straw man, LILCO then proceeds to knock it down.
At other points in its Motion to Strike, LILCO alleges that particu-lar matters have been previously litigated, even though LILCO raises those same issues in its own testimony.
This demonstrates that LILCO's true purpose is merely 'o strike as much unfavorable evidence as possible.
Accordingly, it is necessary to set the record straight in the face of LILCO's contrivances.
The Cole it al. Testimony addresses the most basic question in this proceeding -- the adequacy of the planning basis for the reception centers.
In doing so, it analyzes the number of people who are likely to seek monitoring in the event of a LILCO instruction that monitoring is advisable for some or all of the EPZ.
Nothing could be more relevant to the issues in this proceeding.1/
1/
Indeed, when addressing a motion to exclude similar (footnote continued) ________ __
Only by assessing the magnitude of the public response to a LILCO advisory to report for monitoring can this Board resolve the issues which have been identified for resolution in this hearing.
In particular, the Board must decide the correct planning basis in order to determine whether CILCO's monitoring procedures are adequate; whether reception center staffing is adequate;.the severity of traffic congestion on roads leading to and in the vicinity of the reception centers; and LILCO's ability to implement the reception center procedures in a way to protect the public health and safety.
Egg Memorandum and Order (Rulings on LILCO's Motion to Reopen Record and Remand of Coliseum Issues)
(December 11, 1986) at 16-18.
Because'of the importance of the planning basis to-resolu-tion of the issues in this hearing, all parties, including LILCO, have submitted testimony on the adequacy of the planning basis.1/
However, LILCO now argues that much of the Cole et al.
Testimony should be excluded because it concerns the shadow phenomenon.
This contrivance completely mischaracterizes the Cole et al.
l (footnote continued from previous page) testimony in the OL-5 proceeding, Judge Shon identified this proceeding as the pertinent forum for addressing monitoring 4
i seeking behavior:
"Ib seems to me that the number of people who are going to seek monitoring and decontamination is the subject of another proceeding, not this proceeding."
OL-5 Transcript at 3177.
1/
Egg LILCO Testimony at 3-12; FEMA Testimony at 6-7; the Testimony of Falk Kantor and Lewis Hulman on behalf of the NRC i
Staff (which is entirely devoted to the issue of the appropriate planning basis); and the Direct Testimony of James Papile et al.
l on behalf of the State of New York at 5-15.
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O Testimony.
That testimony specifically addresses the issue of monitorina-seekina behavior -- behavior which is distinct from the evacuation shadow phenomenon and which is clearly relevant to reception center issues identified by this Board -- i.e. who will come to the reception centers for monitoring.
LILCO's attempts to confuse the two behaviors, and thus to claim ret iudicata, are belied by testimony from its own witness and statements by its j
own counsel (see Section II.A, below).
LILCO also moves to strike portions of the Cole et al.
Testimony on the grounds that testimony concerning the public's fear of radiation, the nature of radiation, and meterological conditions at Shoreham involve issues which have been previously litigated.
These arguments also seek to mislead the Board.
In fact, LILCO is simply identifying buzz words which were used in prior Board decisions without any analysis of what evidence was previously submitted and the issues on which it was submitted.
This simplistic approach should be rejected.
An examination of the Cole et al. Testimony shows that the evidence offered here is different than in the previous emergency planning proceedings and is offered on different issues.
LILCO also raises a red herring by emphasizing the fact that parts of the Cole et al. Testimony is similar to testimony offered in the OL-5 proceeding, some of which was stricken there.
That argument has no merit.
The reception center issues are 4
.I,
different from the OL-5 issues and are being heard by a different Board.
This Board is obligated to hear all relevant and material evidence on the reception center issues regardless of whether some of that evidence may have been introduced in a different proceeding for different purposes.
The fact that some similar testimony may have been stricken in the OL-5 proceeding is not dispositive of this Motion to Strike because the issues in the OL-5 proceeding are different from those before this Board.
LILCO's approach in its Motion to Strike is clear -- to deprive the Board of relevant evidence on issues identified as fundamental to this proceeding.
When examined closely, LILCO's Motion to Strike is nothing more than an effort to force accep-tance of LILCO's arbitrary 30% planning basis without considera-tion of evidence demonstrating that the planning basis is inadequate.
The Motion to Strike should therefore be denied.
II.
DISCUSSION A.
Monitoring-Seeking Behavior and Evacuation Shadow Phenomenon Are Distinct The Cole et al. Testimony addresses the issue of monitor-ing-seeking behavior and not the evacuation shadow phenomenon.
LILCO, however, disregards the precise and careful focus of the Cole et al. Testimony and asserts that it should be excluded on the flawed premise that shadow phenomenon is a " generic issue" -.
l
e-e which somehow subsumes monitoring-seeking behavior.
Motion to Strike at 2.
In advancing this argument LILCO not only ignores the Cole et al. Testimony's focus on monitoring-seeking, but disregards the testimony of Dr. Mileti, LILCO's own witness, as well as the previous statements of counsel for LILCO.
Turning first to Dr. Mileti's testimony in this proceeding, he testifies that the two behaviors are distinct:
shadow" and " monitoring shadow"?d/ etween " evacuation Dr. Mileti, is there a difference b Q:
A:
(Mileti)
Yes, there is.
As I discussed in my written testimony in the OL-5 proceeding these are two differ-ent phenomena.
There, shadow evacuation is defined as
" voluntary evacuation of persons not advised to evacu-ate" and monitorina shadow is defined as " voluntary reporting of persons to the reception centers by members of the public not advised to report for such monitoring."
Both these phenomena are discussed in that testimony.
LILCO Testimony at 12.
In addition, in a recent argument before the OL-5 Board, counsel for LILCO also recognized this distinc-tion:
Ms. McClesky:
In terms of the monitorina shadow issue, it is different from evacuation shadow in that evacuation shadow involves get-ting people to flee a risk, and monitoring shadow involves getting them to come after an l
accident to take protective action for them-selves, and there's a difference, and our witnesses are hanov to talk about that at
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" Monitoring shadow" is LILCO's term for monitoring-seeking behavior.
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a OL-5 Transcript at 3181 (emphasis added).
In fact, in the OL-5 proceeding, Dr. Mileti submitted Testimony which precisely set forth the distinction between evacuation shadow and monitoring seeking behavior.3/
LILCO's efforts to merge monitoring and evacuation shadow in its Motion to Strike are thus belied by LILCO's own witnesses and the prior statements of counsel. Both Dr. Mileti and LILCO's counsel recognize that a clear distinction exists between evacuation shadow and monitoring-seeking behavior.
LILCO's efforts to confuse evacuation shadow and monitoring shadow is simply a rhetorical tool designed to deny the Govern-ments their right to present this never-before-litigated issue to this Board.
As such, LILCO's efforts should be disregarded.
$/
Q.
Are " shadow evacuation" and " monitoring shadow" different?
A.
(Mileti) Yes.
Shadow evacuation and monitoring shadow are not the same behavior.
Shadow evacuation, like any form of evacuation, is largely a pre-impact phenomenon from the viewpoint of the person engaging in the behavior.
Shadow evacuation theoretically occurs when people who are " safe" and who are not advised to evacuate perceive that they are not safe; they evacuate voluntarily to avoid the risk that they believe jeopardizes their safety.
Monitoring shadow implies different characteristics than shadow evacuation.
Monitoring shadow is largely a post-impact phenomenon from the viewpoint of the person engaging in the behavior.
Monitoring shadow could theoretically occur and be linked to shadow evacuation only if people who are " safe" and not advised to evacu-ate do in fact evacuate, and later conclude that their evacuation was unsuccessful in its attempt to avoid radiation exposure.
LILCO's OL-S Testimony on Contention Ex 38 (ENC Operations) and Ex 39 (Rumor (Control) at 86.
The Cole gi al Testimony adheres to the distinction between monitoring seeking behavior and evacuation shadow in both sub-stantive content and procedural approach.
As to the content of the testimony, the panel indicates that the " testimony will address the number of people likely to seek monitorino...."
Cole gi gl. Testimony at 9 (emphasis added).
Furthermore, the panel concludes that more than 30% of the EPZ residents will seek monitoring and that "not only will more residents of the EPZ seek monitorino than are advised to do so, but many people from out-side the EPZ will also seek to be monitored."
Cole Testimony at 11 (emphasis added).
The Cole Testimony clearly goes to the number of people who will seek monitoring, not the number involved in the evacuation shadow.
The methodology used in the Cole et al. Testimony is also focused specifically on monitoring, as opposed to evacuation.
In particular, one of the County's witnesses, Dr. Cole, focuses his testimony on a soecific cuestion in his survey which addresses monitoring behavior.
Cole gi al. Testimony at 16.
The testimony then sets forth the results of that survey question, focuses on the reasons for those results and provides depth to those reasons by examining the results of focus groups.
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In short, LILCO mischaracterizes the Count's testimony when it states that County's witnesses are addressing shadow phenomenon.
In light of the statements of LILCO's own witness and counsel, LILCO should know better.
B.
LILCO'S Claims of "Similar" Testimony Are Irrelevant LILCO attempts to obscure the Cole 11 al. Testimony's focus on monitoring behavior by engaging in an elaborate exercise which compares various portions of the testimony to other testimony submitted by a Suffolk County panel in the OL-5 hearing.
Egg
. to LILCO's Motion to Strike.
This exercise is com-pletely misleading and ultimately insignificant, since much of the "similar" testimony goes to the nature and methodology of the survey, and the nature and the results of the focus groups.1/
In other words, most of the so-called "similar" testimony goes to the description of the tools used in both proceedings to provide the basis for some of the witnesses' testimony.
To the extent testimony offered in the OL-5 proceeding is offered at this pro-ceeding, the evidence in this proceeding is offered for com-pletely different purposes and addresses issues specifically 1/
Egg Attachment 1 to LILCO's Motion to Strike.
In particu-lar, the similar testimony on survey procedures is identified at pages 1-4 of the attachment; similar testimony on survey results is identified at pages 5-6 of the attachment; similar testimony on the use of surveys as prediction tools is identified at pages 7-8 of the attachment; similar testimony on focus group tech-niques' at pages 14-19 of the attachment; and similar testimony on focus group comments is identified at pages 21-24 and 26-27 of the attachment. i l
identified.in this proceeding.
This B5ard cannot reject evidence relevant to the issues it has admitted.
Thus, LILCO's complaints about "similar" evidence are misplaced and irrelevant.
LILCO's primary purpose in raising its complaint about "similar" testimony appears to be the elimination of the County experts' survey date.
However, the OL-5 panel, recognizing that the survey issue is based on LILCO's actual emergency messages as disseminated during the Shoreham Exercise found the survey to be probative.
Memorandum and Order (Ruling on LILCO's and Staff's Motion to Strike Suffolk County's Testimony on Contentions Ex. 38, Ex. 39, Ex. 22F, Ex. 44, Ex. 40c and Ex. 49c) (April 17, 1987) ("OL-5 Order") at 4.
Accordingly, LILCO's Motion to Strike l
the Cole survey in the OL-5 proceeding was denied.
Given the holding of the OL-5 Board on the probative nature of the Cole Survey, the Testimony on the methodology and results of the Cole survey should not be striken in this proceeding.1/
f/
To the extent the Cole at al. Testimony on survey procedures and methodology is considered by the Board to be redundant with that submitted and accepted in the OL-5 proceeding, the County i
offers to proceed by way of designation if the Board feels such a procedure would save time.
Under this procedure, LILCO may designate relevant OL-5 transcript portions which contain its cross-examination on "similar" County testimony.
The County would have the opportunity to object to the designations, accept them, or supplement them with other OL-5 transcript portions to assure that all designations are in context.
LILCO could then 4
I supplement its designations by cross-examination on matters not covered in the designated transcript portions.
This procedure is commonly used in civil litigation in cases where depositions are introduced due to the unavailability of live witnesses.
C.
LILCO Has Raised The Issue of Monitoring Seeking Behavior And The County's Witnesses Are Entitled To Address Monitoring Seeking Behavior And The Reasons For Its Occurrence.
Since the early phases of litigation concerning the recep-tion centers, LILCO has raised the issue of the number of people who will seek monitoring.
In particular, LILCO has addressed the reception center planning basis by repeatedly citing to the Memo-randum on NUREG-0654/ FEMA-REP-1 Evaluation Criteria J.12 from Richard W. Krimm, dated December 24, 1985 ("Krimm Memorandum").1/
Indeed, the Krimm Memorandum is attached as Exhibit L to the LILCO Testimony.
The basis for the Krimm Memorandum is an implied recognition that more people may seek monitoring than need to, although the Memorandum's estimate is woefully low.
The Krimm Memorandum sets forth 20% as the appropriate planning basis for the reception centers.
As justification for the 20% figure, the Krimm Memoran-dum begins by noting that in previous emergencies "3 to 20 per-cent of the evacuees went to relocation centers or shelters."
The Krimm Memorandum then chooses the upper end of this range, because "for radiological emergencies, it is reasonable to assume that additional evacuees, to allav their concerns and fear over 1/
Egg LILCO's Responses and Objections to Intervenor's First Set of Interrogatories at 4-5; LILCO's Testimony at 3-4, and 9-10.
The other parties also discuss the Krimm Memorandum when addressing the correct planning basis for the reception centers.
Egg FEMA Testimony at 7; NRC Testimony of Falk Kantor at 5-6; and Testimony of Papile gt al. on behalf of the State of New York at 11-15.
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O radiation, will go to relocation centers whether or not they have been exposed to radiation."
Krimm Memorandum at 1 (emphasis added).
This adjustment in the planning basis is based on the recognition that the behavior described by the County's witnesses is real (although there are obvious discrepancies between FEMA and the County regarding the magnitude of that behavior).
In testifying about monitoring-seeking behavior and the reasons for it (i.e. concerns and fears over radiation), the County's wit-nesses are no more outside the scope of this proceeding than is LILCO's own exhibit, the Krimm Memorandum.
In addition, LILCO has submitted direct testimony on the issue of monitoring seeking behavior.
As discussed above, Dr.
Mileti specifically addressed the distinction between monitoring and evacuation shadow and set forth a rationale as to why, in his opinion, additional people will not seek monitoring at the LILCO reception centers.
LILCO Testimony at 12-15.
Again, the County's witnesses are entitled to address the same issue which LILCO addresses and introduce all of the evidence supporting their position.1/
1/
LILCO has attempted to qualify its testimony by claims that certain unsoecified portions of the testimony were actually out-side the scope of the proceeding and were submitted on a condi-tional basis.
Egg Letter of James N. Christman to the Board dated March 30, 1987.
The monitoring behavior discussion in the Cole gt al. Testimony was aqt identified as being conditionally submitted, and was no doubt admitted to address the planning basis for the LILCO reception centers.
LILCO has thus raised the issue of monitoring shadows and fundamental fairness and the interests of a reasoned decision direct that the Cole et al.
Testimony on monitoring behavior should be admitted.
(footnote continued)
D.
Preexistina Fear f
LILCO also moves to strike testimony which discusses the fear of radiation on Long Island.
In particular, LILCO notes that this' Board's Partial. Initial Decision ("PID"), LBP 85-12, 21 NRC 644 (1985), discusses the public's fear of radiation.
LILCO then concludes that in light of this fact, "further testimony discussing the effect of pre-existing fear on the shadow phenome-non is barred."
Motion to Strike at 15.
Once again, LILCO attempts to obscure the difference between evacuation shadow and monitoring-seeking behavior.
i In the PID, the Board simply ruled that fear would not work as the sole cause of evacuation shadow in the presence of com-plete and consistent information.9/
The evacuation shadow, how-j ever, is not the subject of the Cole et al. Testimony.
- Rather, 1
in the Cole et al. Testimony,-the, fear of radiation is one explanation for monitorina-seekina behavior -- an issue which LILCO's own witness and counsel have recognized is a separate issue from evacuation shadow.
By attempting to exclude testimony (footnote continued from previous page)
Moreover, even if LILCO now contends that the Miletti Testi-mony was conditionally admitted, such a procedure of submitting conditional testimony is not sanctioned by NRC rules and should be rejected.
In effect, LILCO is presenting testimony with the proviso that LILCO can unilaterally exclude it if LILCO believes such exclusion is expedient.
The proper procedure is to move to Strike the opposite parties' testimony when it is submitted.
9/
Egg PID, 21 NRC at 662. _
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on pre-existing fear, LILCO is seeking to exclude an important part of the basis for the County witnesses' conclusions.
Such an effort to exclude relevant evidence should be denied, for it deprives the Board of an opportunity to weigh the conclusions of the witnesses.
III. SPECIFIC REQUESTS TO STRIKE LILCO's Motion to Strike seeks to exclude substantial portions of the Cole gi gl. Testimony.
LILCO has divided its specific objections into Sections A through O.
The County will address each of these sections in order.
A.
Cole et al. Testimony at D.
1 throuch 10 LILCO does not move to strike this testimony regarding the witnesses' qualifications.
B.
Cole et al. Testimony at D.
11 throuch line 4 of o.
12 This testimony merely provides a sur;. mary of the witnesses' conclusions.
LILCO moves to strike the testimony because it addresses " fear of radiation, the usefulness of the opinion polls, and overreaction."
Motion to Strike at 9.
This is a gross distortion of the Cole et al. Testimony, for this portion of the testimony specifically addresses monitoring-seeking - _ -
behavior which has never before been litigated.
For example, the testimony states "not only will more residents of the EPZ seek monitoring than are advised to do so, but many people from out-side the EPZ will also seek to be monitored."
Cole et al.
Testimony at 11.
As stated above, LILCO's own witnesses recognize the relevance of monitoring seeking behavior in this case, and the LILCO Motion to Strike this testimony is meaningless.
C.
Cole et al. Testimony at o.
12 throuch 19 LILCO moves to strike this testimony on the ground that the testimony allegedly repeats a County claim that "Dr. Coles opinion polls show there would be a large overreaction to a radiological emergency."
Motion to Strike at 9.
In particular, LILCO asserts that survey results are not predictive, and evacuation shadow has been previously litigated.
In fact, the testimony at-issue does address the results of a survey Dr. Cole conducted; a survey which the OL-5 Board found probative.
OL-5 Order at 3-4.
Because the specific survey ques-tion referenced in this portion of the Cole testimony goes to the issue of monitoring-seeking behavior (Cole et al. Testimony at
- 16) the results are clearly material to this proceeding.
Furthermore, for the reasons already stated isSection II.A, -.
LILCO's complaints that the testimony addresses the evacuation shadow phenomenon are unfounded.
Thus, this portion of the Motion to Strike should be denied.
D.
Cole et al. Testimony at o.
26 LILCO moves to strike this portion of the Cole et al. Testi-mony on the grounds that it discusses pre-existing fear of radia-tion and its relation to shadow phenomenon.
In particular, LILCO references the PID and claims that fear has been previously decided.
For the reasons stated in Section II.D above, LILCO's argument is without merit.
The Cole, et al. Testimony relates directly to monitoring and this specific testimony explains the reasons for monitoring-seeking behavior -- an issue which has never been litigated.
If the witnesses are not allowed to explain the bases for their conclusions, the Board cannot weigh their testimony.
This portion of the Motion to Strike should therefore be denied.
E.
Cole et al. Testimony at o.
27, Lines 1-5 This testimony sites the experience at TMI as one explana-1 i
tion for monitoring shadow.
LILCO seeks to exclude this testi-mony on the grounds that the response at TMI has been previously litigated.
The referenced testimony, however, simply sets forth an explanation for monitoring-seeking behavior.
LILCO is
_ ~. _ _
attempting to prevent witnesses from describing the bases for-their conclusions.
This effort to deprive the Board of the 1
- opportunity to weigh testimony should be denied.
F.
Cole et al. Testimony at o. 27, Lines 6-19 LILCO moves to strike the remainder of this page of testi-mony on the same grounds set forth in Section III.E.
- However, this testimony is substantially different from that referenced in 4
Section III.E.
The testimony at issue here does not concern TMI, but rather shows how the publications of LILCO witness Lindell support the County witnesses' opinions on monitoring-seeking i
behavior.
The County witnesses are certainly not precluded from using the publications of LILCO witnesses in this manner.
G.
Cole et al. Testimony at o.
28 throuah 29, line 6 In this portion of the Cole et al. Testimony, two of the County's public health experts state that because radiation is colorless and odorless, and thus feared, behavior in the face of l
l a radiation hazard can be analogized to the behavior of those seeking testing for AIDS.
LILCO moves to exclude this Testimony on the grounds (1) the odorless nature of radiation has been previously litigated, and (2) the analogy of monitoring seeking behavior to those seeking testing for AIDS is irrelevant.
Both these arguments are meritless.
Nowhere has the nature of radia-,
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-tion been previously litigated in the context of how it might be a cause of monitoring behavior.
As for LILCO's argument that the AIDS analogy is irrelevant, such a position totally ignores the substance and purpose of this testimony.
If LILCO believes that the situation is not analogous then it can attempt to diminish the weight of that testimony through cross-examination.
- However, it is clear this testimony is relevant and this portion of the Motion to Strike should be denied.
H.
Cole et al. Testimony at D.
29 throuch 30, line 16 LILCO moves to strike this testimony because it concerns the public fear of radiation and because similar testimony was struck by the OL-5 Board.
For the reasons stated in Sections II.B and II.D above, this portion of LILCO's Motion to Strike must be denied.
The fact that the OL-S Board struck "similar" testimony is irrelevant because here the Count's witnesses discuss concerns about radiation in the context of monitoring-seeking behavior --
an issue which has never been litigated before.
I.
Cole et al. Testimony at o.
30 throuch 36 i.
This testimony concerns the focus group interviews conducted by Dr. Cole, one of the County's witnesses.
LILCO moves to strike on the grounds that they reopen the issue of pre-existing l
fear, and are not useful to determine future behavior.
In fact, l
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this evidence is offered to explain and give depth to the Cole survey. findings on monitoring seeking behavior.
As the OL-5 Board found, "To the extent that the focus group testimony addresses the survey results, however, it is admissable as sup-porting evidence."
OL-5 Order at 8.
For these reasons, and as further explained in Section II D above this testimony should not be stricken.
J.
Cole et al, Testimony at D.
36 throuah 41 LILCO moves to strike this testimony because it concerns.
shadow phenomenon and pre-existing fear, and also because it discusses the effect of the Chernobyl accident on the public.
As to the general analyses of shadow phenomenon and pre-existing fear, such testimony is relevant to the issues in this case.
Egg Section II, D above. As for the Chernobyl testimony, the LILCO Motion relies on the OL-5 Order, but such reliance is misplaced.
l The OL-5 Board simply struck testimony which injects "a new ele-ment (the Chernobyl accident) that is unrelated to the exercise."
OL-5 Order at 10 (emphasis added).
The OL-5 Board did not make any decision on whether the Chernobyl accident would affect the number of people who would seek monitoring, which is an issue in this case.
Accordingly, this portion of LILCO's Motion to Strike must be denied..
4 K.
Cole et al Testimony at o.
41 throuch 47 LILCO argues that this testimony improperly raises the issue of LILCO credibility and the. efficacy of EBS messages which have been previously litigated.
Motion to Strike at 20.through 26.
LILCO's complaints, however, are unsupportable.
First, while it is true that the Cole et al. Testimony addresses emergency infor-mation and its effect on monitoring-seeking behavior, those issues were originally raised in LILCO's own testimony.
In particular, Dr. Mileti states that monitoring-seeking behavior would be insubstantial, and states as a reason that
"...EBS mes-sages are so important to encourage those advised to be monitored to do so."
LILCO Testimony at 14.
Likewise, LILCO witness Lindell opines that information would predominate over other factors to minimize monitoring-seeking behavior.
LILCO Testimony at 19.
No proceeding has ever addressed the issue of how emergency information affects monitoring-seeking behavior.
If LILCO believes that the County's testimony on the relation between emergency information and monitoring shadow is incorrect, then LILCO should pursue that theory either through cross examination or the presentation of its own evidence.
- However, all LILCO is seeking to do by this Motion to Strike is to pre-clude the rebuttal of its own evidence and to exclude relevant evidence from Board consideration. __ _ _.,. - -.. - - -., _ - -... _... _ _ _
L.
Portions of Cole et al. Testimony at o.
47 throuah 51 LILCO first moves to strike a citation to caselaw on which the witnesses rely, in part, for their opinion.
However, LILCO offers no reason why the Count's witnesses cannot cite to such caselaw if it forms part of the basis for their conclusions.
LILCO also moves to strike testimony concerning monitoring seeking behavior (Page 50, lines 6-8), but such testimony is clearly relevant to the issue in this case.
Egg Section II.D.
Finally, LILCO also moves to strike the testimony on the origins of the Krimm Memorandum.
The events surrounding the issuance of the Krimm Memorandum are obviously relevant to its credibility.
If LILCO wishes to challenge this testimony, cross-examination is the proper procedure, not exclusion.
M.
Cole et al. Testimony at o.
54 LILCO moves to strike the testimony of County witnesses Gregory C. Minor and Steven C. Sholly on meterological conditions and their relevance to LILCO's planning basis.
Motion to Strike at 26.
The basis for this motion is that the issue of " wind shifts" was previously litigated.
This is a distortion of the record.
Q-Previous proceedings merely addressed who would evacuate if a wind shift occurred and whether a circulac zone should always be evacuated as a protective action measure.
Egg PID, 21 NRC at 778-79.
In this case, however, Messrs. Minor and Sholly are simply responding to testimony submitted by LILCO which infers that the wind will travel in a straight line and thus come into contact with only a narrow band of the EPZ.
Sig LILCO Testimony at 9.
This is a flawed assumption-(and is supported nowhere in the PID), yet LILCO relies on it to conclude that its 30% plan-ning basis is adequate.
The County must be permitted to rebut LILCO's testimony, especially where, as here, the testimony does not attempt to relitigate issues covered by prior decisions.
N.
Cole et al. Testimony at o.
56 throuch 57, line 6 This testimony summarizes the conclusions of the panel on monitoring-seeking behavior and the number of evacuees who will arrive at the reception centers.
LILCO seeks to exclude this testimony on the grounds that it reopens " shadow phenomenon."
As e
discussed above, LILCO's position is without merit.
i O.
Exhibit 8 This is the survey report from which some of the data the witnesses rely upon in offering their cestimony on monitoring-seeking behavior is derived.
For the reasons discussed above, l ;
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the survey and its results were held admissable in the OL-5 proceeding.
The survey and its results are similarly admissable here.
IV.
CONCLUSION For the foregoing reasons, LILCO's Motion to Strike should be denied in its entirety.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney H. Lee Dennison Building i
Veterans Memorial Highway Ha uge, New York 11788 L rdk Christopher M. McMurray David T.
Case KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - Suite 900 Washington, D.C.
20036-5891 Attorneys for Suffolk County April 30, 1987 l
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