ML20212N570
| ML20212N570 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/05/1987 |
| From: | Zeugin L HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20212N544 | List: |
| References | |
| OL-5, NUDOCS 8703130077 | |
| Download: ML20212N570 (7) | |
Text
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. LILCO, M:rch 5,1987 -
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S MOTION TO STRIKE PORTIOriS OF SUFFOLK COUNTY'S TESTIMONY ON CONTENTION EX 40 Pursuant to 10 C.F.R. S 2.743(c), Long Island Lighting Company ("LILCO") hereby moves to strike portions of the " Direct Testimony of Assistant Chief Inspector Richard C. Roberts, Inspector Richard Doriner, Inspector Philip McGuire and Deputy Inspector Edwin J. Michel on Contention EX 40" on the grounds that it either attempts to relitigate issues that were raised and settled in earlier litigation on the LILCO Plan, or is unduly repetitious of other testimony filed by Intervenors in this exercise litigation, or is outside the scope of the contention and therefore irrelevant to any issue still ripe for adjudication.
Specifically, LILCO seeks to strike the following portions of Intervenors' testimony on Contention EX 40.
1.
The first portion of testimony that LILCO moves to strike is the question and answer that begins on the top of page 17. This question seeks to elicit the witnesses' concurrence that the traffic control strategies and techniques presented in the LILCO Plan " require the Traffic Guides to be mobilized and dispatched to their Traffic Control Posts prior to an evacuation order." In-the concurring answer -the -
g witnesses provide their views on the assumptions LILCO allegedly made in formulating G
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- r-4 the LILCO Plan. This question and answer addresses issues that are unrelated to the
. February 13 Exercise and that were previously raised and rejected by the Board in the m
earlier Plan litigation. In the' PartialInitial Decision ("PID"), the Board' stated that:
The County insists -that in order for ' evacuation to be effective, the full roster of personnel required for emergency response must. be at ' their posts before - the beginning of evacuation. Tr. 7426-27 (Herr.).
PID,'22 NRC 651, 722-23 (1985); sgg also Tr. 7000-02 (Monteith), 7493 (Herr). The Board
- then went on to reject these arguments. ' See PID at 723-25. - Accordingly, this testimony is barred by res judicata and should be stricken.
2.
' Similarly, on page 19 lines 15 and 16 the phrase "none were at their posts in the field" should be stricken as attempting to raise an issue that has been previously resolved. The phrase is part of a sentence that defines the state of mobilization of Traffic Guides at the time a General Emergency was declared. The implication is that Traffic Guides should have been in the field at that time. Yet, on page 14 of their testimony the witnesses correctly note that the Plan provides that Traffic Guides are
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to be dispatched from the staging areas when an evacuatilon recommendation is given.
It is uncontested that an evacuation recommendation was not given until 45 minutes af ter the declaration of a General Emergency on the day of the Exercise. Thus, the phrase in question seeks only to reopen the issue of when Traffic Guides should be i
dispatched into the field, seg PID at 722-25, and paragraph 1, supra, and should, accordingly, be stricken.
3.
For identical reasons, the first sentence in the answer on page 21 should be stricken or at a kninimum revised to eliminate the implication that Traffic Guides should have been dispatched before an evacuation recommendation was given.
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4.
' LILCO also moves to strike the' question and answer that appears'on the'
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top of page 20. This question and answer seeks to argue that an actual accident could Loccur more rapidly then the accident posed during the February 13 Exercise and that in such a fast-breaking. accident the mobilization of Traffic Guides would " severely impair" LERds response.
Again, the' witnesses have sought ~ to rehash an issue previously addressed in the Plan litigation.' In the PID, the Board plainly identifies that Suffolk County sought to argue that plans for mobilization should be able to assure response to all accidents, including even extremely fast-breaking ones. PID at 722-23.
The Board rejected this argument, finding that we are satisfied that the LILCO Plan to mobilize its i
emergency forces over a full spectrum of possible accidents - is reasonable even though longer-than-normal public evacuations times might be required for most extreme conditions in that spectrum.
Accordingly, the duestion and answer on the top of page 20 should be PID at 725.
i stricken under the doctrine of res judicata.
5.
Next, LILCO moves to strike the proffered testimony that begins on the top of page 24 and continues through page 28 line 20. This testimony discusses the two roadway impediments imposed by FEMA during the February 13 Exercise and LERO's response to those impedim~ents. The testimony is objectionable for two reasons. First, the testimony is duplicative of other testimony offered by Intervenors on Contention EX 41 - a contention which specifically deals with LERO's response to the roadway 1
impediments. See Testimony of Roberts, et al. On Contention EX 41 at 30-50. In its October 3,1986 "Prehearing Conference Order (Ruling on Contentions and Establishing Discovery Schedule)," this Board ruled that "it will hear evidence only once on each factual matter in dispute." October 3 Order at 30. Since the testimony in question seeks to raise facts related to the roadway impediments in more than one contention, it should be stricken as duplicative.
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'Second, the proffered testimony is irrelevant to Contention EX 40. Nowhere in Contention EX 40 is there a suggestion that LERO's mobilization of Traffic Guides was untimely because of the roadway impediments imposed by FEMA. It is settled NRC
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caseLlaw that only Issues fairly raised by a contention are the subject of later adjudicatory proceedings. Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant), ALAB-852, slip op. at 22 (October 31,1986); Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819,22 NRC 681,709 (1985). Furthermore, the proffered testimony proceeds from the assumption that severe traffic accidents
- requiring rerouting will occur very early in an evacuation and hence_ required traffic guides to be at their posts to implement any rerouting strategy. This issue is unrelated to the Exercise results and instead presents a planning issue that Intervenors could and should have raised in the earlier Plan litigation. FEMA could have chosen to inject the two impediments at any time in the evacuation process. It chose to introduce them at the beginning of that process so that its field evaluators could evaluate more than one field function.
See Deposition of Christopher L. Saricks, pp. 31-32, 46-48.
The questions of whether and when accidents will occur and of how severe they will be ar'e '
planning issues unrelated to the results of the February 13 Exercise. Accordingly, Intervenors'. concern should have been raised la the earlier planning litigation; it is now untimely and should be stricken from the rubric of Contention EX 40.
6.
LILCO also moves to strike (1) the clause beginning on page 30 line 10 with the word "Even" and ending on line 12 with the word " disagree" and (2) the language beginning on page 31 line 11 with the word "when" and ending on line 14 with the word "true". Both passages seek to argue that in an actual emergency the mobilization of LERO Traffic Guides would be delayed because of congestion on roadways caused by early voluntary evacuees and by pre-evacuation travel.
In Contention EX 40.D.
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- c Intervenors sought to raise the issue of congestion caused by early voluntary evacuees.
The-Board denied admission to that subpart, finding that the. issue had been "already.
- litigated and settled." October 3 Order at 22. Suffolk County should not now be allowed'to reintroduce that issue under the guise of other subparts of Contention EX 40.
The effect'of pre-evacuation travel on mobilization was also litigated and settled in earlier litigation. PID at 722, 724. Accordingly, the cited passages are barred by the doctrine of res judicata and should be stricken.
7.
LILCO also moves to strike the testimony beginning with the question on page 31 proceeding through page 37 line 19. In this testimony, the witnesses have once again strayed for events of the February 13 Exercise to attempt to revisit issues already considered and resolved in prior litigation. On these pages, the witnesses reargue that LILCO incorrectly assumed that evacuees would not deviate from their assigned routes (Testimony at 31-32),.that traffic channelization techniques provided in the LILCO Plan would not be effective (Testimony at 32-34), that failure to implement the traffic control treatments in the Plan before an order to evacuate was given would make their implementation impossible (Testimony at 34-36), that LERO Traffic Guides lack the training and experience to implement the traffic strategies contained in the LILCO
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Plan (Testimony at 35), and that certain traffic control strategies are " illogical and in ppropriate" (Testimony at 36-37).
These issues were all decided adversely to Intervenors in the prior proceeding.
PID at 790-92, 794 (Board, rejected Suffolk County's arguments about route compliance as " unpersuasive"); PID at 805-07 (Board noted Suffolk County Police Department concerns about channelization techniques and specific traffic controls strategies used at given intersections; stated it had "no cause to reject the police experience on these matters"; but then dismissed these arguments finding that LILCO's sensitivity analyses demonstrated that Intervenors' concerns
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" simply do not have the asserted effects on the overall [ roadway] network"); PID at 722-23 (Board rejected Suffolk County Police Department argument that LERO would lose control of roadway networks in Traffic Guides were not 1.1 place when evacuation order was given); and PID at 749-50 (LERO Traffic Guides have been given sufficient training to perform their assigned tasks).
Accordingly, this testimony should be stricken under the doctrine of res judicata.
8.
Finally, LILCO moves to strike the testimony that begins with the question on the bottom of page 37 and runs through page 39 line 18. The sole purpose of this testimony is to take issue with the way FEMA graded certain objectives in its Post-Exercise Assessment Report.
As this Board recognized in its Order admitting contentions, the. inquiry in this litigation is limited to the question of whether the Exercise revealed fundamental flaws in the LILCO Plan. See October 3 Order at 2.
The cited testimony in no way relates to this question; instead, it seeks to challenge, in a wholesale manner, FEMA's grading of the Exercise. While it is true that FEMA's factual findings can be rebutted in this proceeding, it does not follow that Intervenors have a carte blanche right to question any item in the FEMA Report. Instead, that right only extends to factual matters related to an alleged fundamental flaw.
Accordingly, this testimony should be stricken as irrelevant.
WHEREFORE, LILCO respectfully requests that this Board strike:
1) page 17 line 1 through line 22; I
2) page 19 lines 15 and 16; 3) page 21 line 7 through line 10; 4) page 20 line 1 through line 15; 5) page 24 line i through page 28 line 20; 6) page 30 line 10 through line 12 and page 31 line 11 through line 14;
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7) page 31 line 18 through page 37 line 19; and 8) page 37 line 20 through page 39 line 18 of Testimony of Assistant Chief Inspector Roberts, et al. on Contention EX 40.
Respectfully submitted, M27-Donhld P. I g
Lee B. Zeu Hunton & Wl111ams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: March 5,1987 O
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