ML20212N541

Lilco Motion to Strike Direct Testimony of Assistant Chief Inspector Rc Roberts & Deputy Inspector Ej Michel on Behalf of Suffolk County Re Contention Ex 34.*

ML20212N541
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	03/05/1987
From:	Monaghan J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20212N544	List: ML20212N541 ML20212N570 ML20212N585
References
CON-#187-2748 OL-5, NUDOCS 8703130067
Download: ML20212N541 (8)

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LILCO, March 5,1987 t DOLMEIED  !

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USNRC UNITED STATES OF AMERICA .l NUCLEAR REGULATORY COMMISSION i

lil~ MAR P2 :13 i

Before the Atomic Safety and Licensing Board SFFICE GF 5ELAEiARY g 86CKETmG & SEFviCE

, BRANCH In the Matter of ' )

) l LONG ISLAND LIGHTING COMPANY ~ ) Docket No. 50-322-OL-5 '

. ) (EP Exercise)

(Shoreham Nuclear Power Station, )

Unit 1) )

LILC&S MOTION TO STRIKE DIRECT TESTIMONY OF ASSISTANT CHIEF INSPECTOR RICHARD C. ROBERTS -

AND DEPUTY INSPECTOR EDWIN J. MICHEL ON SEII.^.LF OF SUFFOLK COUNTY REGARDING CONTENTION EX 34 I

l Pursuant to 10 C.F.R. S 2.743(c), the Long Island Lighting Company ("LILCO")

Idoves to strike the " Direct Testimony of Assistant Chief Inspector Richard C. Roberts

{ and Deputy. Inspector Edwin J. Michel on Behalf of Suffolk County Regarding Conten-tion EX 34" (hereaf ter "Intervenors' testimony") on the following grounds:

1. The Testimony in Its Entirety Is Barred by Res Judicata Intervenors' testimony concerning the Local Emergency Response Organization's

("LERO's") performance of backup route alerting during the Exercise hinges on the fact that route alerting took longer than 45 minutes. S_ee, g, Testimony at 6-8 (LERO was allegedly required to demonstrate completion of route alerting within 45 minutes);

12-13'(traffiYeongestion would increase the time needed to complete route alerting);

l 13-14 (variations in the size and population density of siren areas may increase the time l

needed to complete notification); and 14-15 (Excraise did not consider time needed to l Verify malfunctioning sirens by telephone survey; this wouki increase notilication l

time). This testimony should be stricken because LERO's backup route alerting system l

l fh o 1 & CKh703000322, 870303 PDR l

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4 and whether it must meet time limitations of 15 minutes or 45 minutes has been liti--

gated and found to be acceptable.

LILCO opposed admission of Contention EX 34,'in part, on the ground that' the issue raised had been decided in the emergency plan proceeding. See LILCO's Objec-tions to Intervenors' " Emergency Planning Contentions" Relating' to the February 13, 1986 Exercise, a't~ 121-122 (Aug.15,1986). The Contention was admitted based appar-

. ently on Intervenors' representation that NUREG-0654, App. 3, at 3-3 includes a 45 m!nute requirement for backup notification. See Memorandum and Order (Ruling on -

INNS Motion for Reconsideration of and Intervenors' Objections to October 3,1986 Pftw;Mg Conference Order), at 21-22 (Dec.11,1986); Suffolk County, State of New York, ard Town of Southampton Objections to Prehearing Conference Order, at 18-20

- (Oct. 27,1986). Intervenors' representation is contrary to the Licensing Board's Partial Initial Decision that no time limit applies to backup notification. See Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1) LBP-85-12, 21 NRC 644, 758-759 (1985), ("PID") aff'd, ALAB-832, 23 NRC 135,143 (1986), petition for review

. granted on other grounds, Order, Docket No. 50-322 OL-3 (Sept.19,1986) (unpublished).

As detailed below, Intervenors' testimony bears out LILCO's objection to the admission of Contention EX 34. No issues are raised by the testimony that were not clearly be-fore the OL-3 Licensing Board when it issued the Partial Initial Decision.

During the earlier emergency plan proceeding, Intervenors argued that Route Alert Drivers are subject to the 15 minute time period for the initial notification

- of the public within EPZ provided for in 10 C.F.R. Part 50 App. E S IV.D.3. See Tr.

5453-54 (Snow); Regensburg et al., ff. Tr. 516, at 13,20-22. It was also argued in that proceeding that backup route alerting is subject to the NUREG-0654, App. 3, at 3-3,45 minute time period for notification of that part of the population which may not have

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received the initial notification. See Tr. 12, 689-90 (Kowieski); Baldwin et al., ff. Tr.

.12,174, at 47-48. Intervenors testified then, as now, that it will take more than the allegedly permissible period of time to detect the failure of sirens, mobilize and dis-

. patch drivers, and drive the siren routes PID at 758-759. Thus, the Licensing Board had before it all of the issues raised in Intervenors' current testimony when it found that it might take "several times'? the 15 minute period to complete the siren backup function. Nonetheless, the Licensing Board held that "NUREG-0654 does not require that backup procedures of this nature be set forth in emergency plans." PID at 759 (quoting Kansas Gas and Electric ' Co. (Wolf ' Creek Generating Station, Unit 1)

LBP-84-26, 20 NRC 53, 67 (1984)). "If no such procedures are needed," concluded the Board, "a fortiori, no standard time limit need be met." PID at 759. Accordingly, the Board found Intervenors' arguments to be "without merit." Id. This conclusion was af-firmed on appeal. Long Island Lighting Company, ALAB-832,23 NRC 135,143, petition for review granted on other grounds, Order, Docket No. 50-322, OL-3 (Sept.19,1986)

(unpublished).

Thus, the central issue of Intervenors' testimony has already been decided on the merits against Intervenors. If there is no time limit for the completion of the siren backup function, the length of time it took to perform that function on the day of the Exercise is irrelevant. Intervenors should not be permitted to relltigate this issue; indeed, such an effort is barred by the doctrine of res iudicata. Accordingly, the Board should strike Intervenors' testimony on Contention EX 34.

2. Testimony on the 45 Minute Time Period is Irrelevant LILCO moves to strike the phrase "and Appendix 3 thereto" on page 3, line 1, and the testimony at page 6, line 14 through page 8, line 12, referencing the 45 minute l

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-l time period for notification on the_ ground that this testimony is irrelevant to the issues raised b'y Contention EX 34. Contention EX 34's allegation that LILCO is incapable of providing prompt notification to_the public in the eveilt of a siren failure as required by the ~ regulations and guidlines rests solely on its textual reference to 10 C.F.R.

. S~50.47(b)(5),10 C.F.R. Part 50 Appendix E S IV.D, and NUREG-0654 S II.E. These regu-lations and guidelines raise only the 15 minute period within which the initial notifica-1-

tion of the public within EPZ is to be made. Intervenors' testimony on an alleged 45 n lute requirement is an af ter-the-fact attempt to expand its own Contention and to judge the Exercise results under a different time limitation - the 45 minute time peri-od set out in the guidance of NUREG-0654, App. 3 at 3.3. Intervenors are bound by the literal terms of their. contention. See Carolina Power and Light Company and North Carolina ~ Eastern Municipal Power Agency (Shearon Harris Nuclear Power Plant),

'A LAB-852, NRC , slip op. at 22 (Oct. 31,1986); Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 505 (1986);

Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-819.-

22 NRC 681, 709 (1985). Intervenors should not be permitted to reframe Contention

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EX 34 through testimony, particularly since they were clearly awsre of the existence of the 45 minute time period from the earlier litigation. Tr.12, 689-90 (Kowieski);

Baldwin et al., ff. Tr.12,174, at 47-48. References to the 45 minute time period should be striken as irrelevant to the issues raised by Contention EX 34.

~ 3. Testimony Incorporating by Reference Testimony From the Emergency Plan Proceeding is Res Judicata and Irrelevant LILCO moves to strike the testimony at page 5, lines 9-17 referencing Suffolk County's testimony during the emergency plan proceedings on the grounds that the tes-timony is barred under the doctrine of res judicata and is irrelevant. This testimony O

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p suggests by its reference that the route alerting provisions of the Plan are "both impractical and unworkable." That issue has already been decided by the Licensing Board, which held that the Plan for route alerting was "a worthwhile and desirable addi-tion to the requirements". PID at 758-59. Res ludicata precludes Intervenors from raising those issues again.

The referenced testimony is also irrelevant. The scope of this proceeding is limited to fundamental flaws in the Plan as revealed by the Exercise. Prehearing Conference Order (Ruling on Contentions and Establishing Discovery Schedule), at 2 (Oct. 3,1986). Contention EX 34 itself is limited to the issues raised by the perfor-mance of three Route Alert Drivers observed during the Exercise. The referenced tes-timony, draf ted long prior to the Exercise, ipso facto cannot deal with the results of the Exercise, and, therefore, is irrelevant to the present proceeding. ' Accordingly, this ,

testimony should be stricken.

4. The Adequacy of Route Alert Maps is Irrelevant

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Footnote 4 on page 10, which addresses an alleged deficiency in the map issued to one of the Route Alert Drivers, should be stricken as not relevant to Contention EX 34. The Contention alleges that the time needed for Route Alert Drivers to per-

- form the siren backup function during the Exercise was excessive. Footnote 4 does not address this issue; instead, it concerns the sufficiency of equipment provided one Route Alert Driver -- a matter nowhere adduced by the Contention. Nor is there any sugges-tion in Ntitrvenors' testimony that the allegedly deficient map affected the time needed to . complete the route. Thus, footnote 4 is wholly irrelevant and should be stricken.

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.. 5. Testimony on Traffic Congestion in The EPZ Is Res Judicata and Irrelevant The _ testimony at page 12, line 9 through page 13, line 6, including footnote 6, should be rejected as res judicata. In the plan proceeding, Intervenors argued that route alert drivers "would be prevented from reporting promptly to duty stations because of traffic caused by evacuees making evacuat'.on and pre-evacuation trips."

PID at 722. The Board rejected Intervenors' dire predictions of delays in mobilization' and held that LILCO's plan to mobilize was reasonable and that their " analysis of the consequences of the inability to mobilize fully under some limited circumstances leads us to reject Suffolk County's concerns about the delaying effects of traffic at specific times of day and other contingent possibilities for delay." PID at 725. Intervenors are barred by res judicata from relitigating this issue.

The testimony should also be stricken as irrelevant. It does not address issues raised by the Exercise. Instead, it involves speculation that in the event of an actual emergency traffic congestion will occur quickly on roads leading to siren routes and on the routes themselves, delaying the Route Alert Drivers attempting to perform the siren backup function, and that persons along the siren routes will stop the Route Alert Drivers, adding additional time to that needed to perform the route alerting function.

Neither of these issues is raised by Contention EX 34 nor were they raised by events in the Exercise. The testimony should be stricken as irrelevant.

6. Testimony on The Length of Time Needed to Complete a Telephone Survey Verification of Sirens and to Notify and Mobilize Route Alert Drivers Is Res Judicata and Irrelevant LILCO moves to strike the testimony at page 14, line 8 through page 15, line 11 and footnote 7 on page 15, on the grounds that it is irrelevent and the issues are res judicata. The Roberts and Michel testimony discusses the Marketing Evaluations'

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t telephone survey, which is'one method used to determine if any sirens have failed to -

. sound.' (The other method is to check the electrical circuits.) For both methods, the time needed to accomplish the verification and its effect on the route alerting process

. ' were litigated and decided against Intervenors in the emergency plan proceedings. PID 4

- at--758-59. Likewise the issues of notification and mobilization of Route Alert Drivers raised here were previously decided against Intervenors. PID at 712, 714-725. Indeed, the Board concluded that LILCO can notify and mobilim Route Alert Drivers in a time- ,

ly fashion. PID at 713, 723-25. Intervenors' testimony should be stricken as unduly rep-etitious and barred as res judicata. <

' Moreover, the testimony is beyond the scope of the issues raised in Contention i

EX 34, which alleges only that the times clocked by Route Alert Drivers during the Exercisa were too long. It should be stricken as irre:evant.

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7. Testimony on Variations In The

. Size of Siren Territories Is Irrelevant i

Intervenors' testimony at page 13, line 7 through page 14, line 7, which asserts

.that the characteristics of a given route may affect the time needed to drive siren routes should be stricken as irrelevant. Contention EX 34 does not raise the issue of variability among routes nor does it suggest that routes driven the day of the Exercise were uncharacteristic. This testimony.is not related to any issue raised by Contention EX 34 nor to events that occurred in the Exercise and should be stricken. In addition, the testimony should be stricken as speculative. The statement that the time taken by the one Route Alert Driver "is probably at least partly explained by the fact that even though the area around siren #26 is corsiderably smaller than are the areas around si-l rens 45 and 89, it is also more densely populated" (emphasis added), is unsupported and should be stricken.

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.- Conclusion For the reasons stated above, LILCO respectfully requests that this Board strike the Direct Testimony of Assistant Chief Inspector Richard C. Roberts and Depu-ty Inspector Edwin J.'Michel on Behalf of Suffolk County Regarding Contention EX 34.

. Respectfully submitted, LONG ISLAND LIGHTING COMPANY jpQ f W '

@ine A. Monaghan Stephen W. Miller c Hunton & Williams P.O. Box 1535 Richmond, VA 23212 DATED: March 5,1987 4

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