ML20212N585
| ML20212N585 | |
| 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 8703130085 | |
| Download: ML20212N585 (10) | |
Text
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LILCO, March 5, IS87 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 PORTIONS OF SUFFOLK COUNTY'S TESTIMONY ON CONTENTION EX 41 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 Dormer, Inspector Philip McGuire and Deputy Inspector Edwin J. Michel on Contention EX 41" on the grounds that it either attempts to reiltigate issues that were raised and settled in earlier litigation on the LILCO Plan, or is unduly repetitious of issues likely to be raised in other testimony filed by Intervenors in this litigation, or is outside the scope of Contention EX 41 and its con.;olidated subparts and therefore irrelevant to any issue still ripe for adjudication. Specifically, LILCO seeks to strike the following portions of Intervenors' testimony on Contention EX 41.
1.
LILCO first moves to' strike the, testimony that begins on page 21 line_3 with the word "Although" and ends on line 12 of that answer with the word " field". This
' testimony argues that an actual accident could occur more rapidly than the accident posed in the February 13 Exercise and as a result, that LERO's response would be "sev-erly impaired" in such a fast-breaking accident. This testimony seeks to resurrect an issue raised and lost by Intervenors in the previous Plan litigation. In the Partial Initial Decision (PID), the Board plainly notes that Suffolk County sought to argue that plans 0703130085 070305 DR ADOCK 0500 2
for mobilization should be able to assure responses to a_Il potential accidents, including
- virtually instantaneous ones. PID, 21 NRC 644, 722-23 (1985). The Board rejected this argument finding that we are satisfied that the LILCO Plan to mobilize its emergen-cy forces over a full spectrum of possible accidents is reason-able even though longer-than-normal public evacuation times might be required for most extreme conditions in that spec-trum.
PID at 725.. Accordingly, this testimony should be stricken under the doctrine of r_es judicata.
2.
LILCO also moves to strike the phrase "according to LILCO" on page 23 line 18 and the phrases "in LILCO's opinion" and "according to LILCO" on page 24 lines 4-5 and 7, respectively. These phrases are objectionable because they imply that the issue of the assignment of road crews has not been previously litigated and resolved. As the cited source of the witnesses' " understanding" indicates, this is not the case. Dur-ing the earlier Plan litigation of Contention EX 66, the field location of road crews was a subject of debate. PID at 810-11. The Board resolved this issue in LILCO's favor, finding that "LILCO's plans for the deployment of road crews in an evacuation are ade-quate." PID at 811. Accordingly, these phrases should be stricken under the doctrine of
_res judicata.
3.
LILCO moves to strike the testimony beginning on page 26 line 24 with the words "Not only" and continuing through page 27 line 5 with the citation " Appendix A at V-2." This testimony seeks both explicitly and by implication to reopen issues relat-ed to the severity of accidents likely to occur during an evacuation and to evacuees' willingness to follow their assigned evacuation routes. Each of these issues was decided adversely to Intervenors in the prior Plan litigation. See PID at 795-96, 811 (expected accident frequency and severity); 790-93 (route compliance). Accordingly, this testi-mony is barred by _res_ judicata and should be stricken.
~
~
1.
Next, LILCO moves.to strike the testimony _on page 27 line 5 beginning
' 4.
with'the word "Given" and proceeding through line 11 with the work " reason". This tes -
-timony seeks to reopen the' issue of when Road Crews should be dispatched into the field. The sequence of mobilization activities and the time required to complete mobi-
,lization was the subject of Contention 27 in the earlier Plan litigation. There, ;the Board accepted as reasonable the mobilization scheme presented in the LILCO Plan.-
PID at 723-25. Accordingly, the cited testimony should be stricken under the doctrine
.of gs ludicata. -
5.-
~LILCO also moves to strike the question and answer beginning on page 27 line 17 and concluding on page 28 line 10. This question and answer raises a generic concern about Road Crews' ability to reach the scene of impediments. This issue was previously raised in Contention 66 in the Plan litigation. See Testimony of Monteith, et al. (Contention 66), ff. Tr. 6868, at 12-14. The Board rejected these arguments finding that "LILCO's planning basis for deployment of tow trucks takes account of possible de-lays in reaching obstructions in a reasonable time." PID at 812. Thus, this testimony i
should be stricken under the doctrine of res _ludicata.
l 6.
LILCO also moves to strike the question and answer beginning on page 28 line 11 and ending on page 29 line 16 as outside the scope of Contention EX 41 and hence irrelevant. This testimony addresses the effect of the mobilization of Road Crews on LERO's ability to convert a stretch of evacuation roadway into one-way flow.
l No fair reading of Contention EX 41 Indicates that this is an issue raised by that con-tention. It is settled NRC case laEthat only issues raised in admitted contentions are the subject of later adjudicatory hearings. 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). The only way that the issue is conceivably raised by Contention EX 41 is if 6
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._4 subpart A is read in isolation from the rest of the contention, which plainly addresses LERO's response to the two roadway impediments. In their response to LILCO's objec-tions to the proposed contentions, Intervenors stated:
Subpart A of Contention EX 41 is not a separate contention which requires its own basis; rather, it constitutes one of the bases for the allegation which comprises Contention EX 41.
... Thus, the data set forth in Subpart A constitute material and important support for the overall thrust of Contention '
EX 41:
namely, that the exercise results demonstrate LILCO's fundamental inability to manage an orderly evacua-tion of the EPZ, because LILCO failed to demonstrate an abil-ity to remove impediments from the roadways in a timely manner.
Response of Intervenors to Objections to the Emergency Planning Contentions Relating to the February 13 Exercise, p. 238 and n. 95 (August 25,1986). Thus, according to In-
'tervenors' own interpretation of Contention EX 41, the cited testimony is irrelevant to
' that contention and should be stricken.
7.
LILCO also moves to strike (1) footnote 20 on pages 51 and 52, (2) the words "if trained, experienced" from page 54 line 3, and (3) footnote 23 on page 57. Each of these pieces of testimony essentially asserts that LERO personnel " lack the training, skill and experience to perform effective traffic control" (p. 51, n. 20). Members of the Suffolk County Police Department made this argument at numerous times dunng the earlier Plan litigation. _Se_e PID at 749. The Board rejected this claim finding that there was "no substantial evidence in support of the Suffolk County claim that the [ traffic control] jobs cannot be performed properly without extensive experience." PID at 750.
Accordingly, the cited testimony should be stricken under the doctrine of gg judicata.
8.
LILCO next moves to strike (1) page 41 line 7 beginning with the words "and other" and ending on line 9 with the words "in this testimony", (2) page 65 line 15 through page 68 line 3, (3) page 78 line 6 and 7 the words "both" and "and the June training drill" and line 12 beginning with the words "In fact," through the last line on the page ending with the words " impediments", and (4) page 79 the paragraph beginning
with the words "In fact" through the end of page 80 line 21. Each of these pieces of testimony seeks to question whether the training that has occurred subsequent to the Exercise has eliminated the difficulties experienced on the day of the Exercise in re-sponding to roadway impediments. As such, LILCO believes that it is outside the scope of issues fairly raised by Contention EX 41. In any event, it is inherently duplicative of factual issues likely to be raised in the litigation of Contention EX 50 - the " training" contention. LILCO previously argued in its objections to proposed Contention EX 50 that the issues raised by that contention were of ten duplicative of other contentions
-and that as a result the contention should not be admitted. See LILCO's Objections to Contentions, pp. 53-56,142-47 (August 15, 1986). The Board decided to admit Conten-tion EX 50 but recognizsd that potential overlaps in factual issues existed and empha-sized that it would " hear evidence only once on each admitted f actual matter in dispute,
regardless of whether it pertains to Contention EX 50 or to some referenced contention that has not been consolidated." Prehearing Conference Order (Ruling on Contentions and Establishing Discovery Schedule), p. 30 (October 3, 19861. Accordingly, LILCO has organized all of its training-related testimony under the rubric of Contention EX 50. In the cited passages, the witnesses have sought to raise training issues not in the context of Contention EX 50, but in Contention EX 41 - a contention referenced in Contention EX 50. In keeping with the Board's order admitting contentions, LILCO suggests that the most efficient way to avoid duplication of factual presentaticns is to strike the ref-erenced testimony as irrelevant to the issues raised by Contention EX 41. Alterna-tively, the Board could decide not to strike the passages and view them as Intervenors' one opportunity to raise all issues about the training of LERO workers to respond to
. roadway impediments. In that case LILCO moves that the Board specifically preclude Intervenors from raising again issues regarding the training of LERO workers to re-spond to roadway impediments in the context of Contention EX 50, but permit LILCO,
3 as it had planned, to address this issue among the issues in its testimony on Contention EX 50.
9.
LILCO also moves to strike the entire answer twinning on page 69 line 18 and proceeding on the top of page 70 except for the word "Yes". The reason is that this answer is unresponsive to the question and hence irrelevant.. Contention EX 22.I con-tends that FEMA should have imposed more than two impediments during the February 13 Exercise. The contention does not allege that the two impediments im-posed by FEMA were themselves deficient. Yet, this is the entire thrust of the answer on pages 69 and 70.
Accordingly, this testimony should be stricken on relevance grouiAs.
In addition, this testir..ony is likely to prove duplicative of testimony presented on Contention EX 21.F. That contention questions the sample chosen by FEMA for observing LERO's ability to respond to roadway impediments. It specifically alleges that other accident locations would have posed more difficult tests of LERO's ability to respond. Therefore, the cited testimony should also be stricken as duplicative of issues to be covered in the litigation of Contention EX 21.
10.
LILCO moves to strike footnote 25 on page 70. In that footnote, the wit-nesses note that they had previously testified that far more than four accidents would be expected to occur during an evacuation of the Shoreham EPZ. What the witnesses do not state in footnote 25 is that the Board recognized an error in the basis for this po-sition and rejected Suffolk County's assertion that a large number of accidents would occur during an evacuation of the Shoreham EPZ. PID at 795-96. Hence, footnote 25 should be stricken under the doctrine of r_es ludicata.
11.
LILCO also moves to strike the words "or other events, including inclement weather" from page 12 lines 7-8 and page 70 line 9 beginning with the words "Even if" through the end of line 11. In both these passages, the witnesses seek to expand their s
. 3 testimony beyond issues of LERO's ability to respond to accidents and other roadway impediments, in order to add " impediments" with profoundly different effects, like in-clement weather. Contention EX.41 contains no language to foreshadow such an ex-pansive reading. Indeed if it did, the expansion would be objectionable as outside the scope of matters tested during the February 13 Exercise. Hence, the cited testimony should be stricken as irrelevant.
12.
LILCO next moves to strike the testimony on page 71 line 10 through page 72 line 15. This t'estimony implicitly seeks to revisit the question of the number of ac-cidents likely to occur during an evacuation of the Shoreham EPZ and, in turn, Plan provisions for responding to roadway impediments. In the earlier Plan litigation, the Board resolved the question of the expected accident rate during an evacuation of the Shoreham EPZ. PID at 795-96. It went further and considered the excess resources that are provided in the LILCO Plan to respond to impediments and concluded that:
LILCO has many additional vehicles it could use to clear road if need be and there is no reasonable basis for thinking that road clearing during an emergency would be hampered by lack of resources with which to respond.
PID at 811. Accordingly, the cited testimony is barred by res judicata and should be stricken.
f
- 13. Finally, LILCO moves to strike the testimony that begins with the question on the bottom of page 72 and runs through page 75 line 6. The sole put pose of this tes-timony,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 conten-tions, 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 does not relate 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 f!ndings can be rebutted in this proceeding, it does not follow that Intervenors have a cart _e
t-3 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 21 line 3 through line 12; 2) page 23 line 18 and page 24 lines 4-5 and 7; 3) page 26 line 24 through page 27 line 5;,
4) page 27 line 5 through line 11; 5) page 27 line 17 through page 28 line 10; 6) page 28 line 11 through page 29 line 16; 7) pages 51-52 footnote 20, page 54 line 3, and page 57 footnote 23; 8) page 41 line 7 through line 9, page 65 line 15 through page 68 line 3, page 78 lines 6, 7 and 12-29, and page 79 line 20 through page 80 line 21; 9) page 69 line 18 through page 70 line 4; 10) page 70 footnote 25; 11) page 12 lines 7-8 and page 70 line 9 through line 11; 12) page 71 line 10 through page 72 line 15; and 13) page 72 line 16 through page 75 line 6 of the Testimony of Assistant Chief Inspector Roberts, et al. on Contention EX 41.
Respectfully submitted, Dodeld P. I
(/
Lee B. Zeu n Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: March 5,1987
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- g LILCO, Mrrch 5,1987 DOCKETED-USNRC.
CERTIFICATE OF SERVICE gr 3R -9 P2 :13 -
In the Matter of yllQE OF SluiltIA4Y LONG ISLAND LIGHTING COMPANY WW6hETmG 1 SERvlCI.
IE (Shoreham Nuclear Power Station, Unit 1)-
e Docket No. 50-322-OL-5 I hereby certify that copies of LILCO'S MOTION TO STRIKE DIRECT TESTIMONY OF ASSISTANT CHIEF INSPECTOR RICHARD C. ROBERTS AND DEPUTY INSPECTOR EDWIN J. MICHEL ON BEHALF OF SUFFOLK COUNTY REGARDING CONTENTION EX'. 34, LILCO'S MOTION TO STRIKE PORTIONS OF SUFFOLK COUNTY'S TESTIMONY ON CONTENTION EX 40 and LILCO'S MOTION TO STRIKE PORTIONS OF SUFFOLK COUNTY'S TESTIMONY ON CONTENTION EX 41 were served this date upon the following by telecopy as indicated by an asterisk (*), Federal Express as indicated by two asterisks (**), or by first-class mail, postage prepaid.
John H. Frye, III, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel
.-Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers 4350 East-West Hwy.
Atomic Safety and Licensing Bethesda, MD 20814 Board Panel a
U.S. Nuclear Regulatory Commission L
Dr. Oscar H. Paris
- Washington, D.C. 20555 Atomic Safety and Licensing Board Oreste Russ Pirfo, Esq.
- U.S. Nuclear Regulatory Commission Edwin J. Reis, Esq.
East-West Towers U.S. Nuclear Regulatory Commission 4350 East-West Hwy.
7735 Old Georgetown Road Bethesda, MD 20814 (to mallroom) i Bethesda, MD 20814 Mr. Frederick J. Shon
- 1 Atomic Safety and Licensing Herbert H. Brown, Esq.
- Board U.S. Nuclear Regulatory Commission Lawrence Coe Lanprier, Esq.
East-West Towers, Rm. 430 Karla J. Letsche, Esq.
4350 East-West Hwy.
Kirkpatrick & Lockhart Bethesda, MD 20814 South Lobby - 9th Floor 1800 M Street, N.W.
Secretary of the Commission Washington, D.C. 20036-5891 Attention Docketing and Service Section U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C. 20555
m i.-
Fabian G. Palomino,' Esq. *
. Mr. Philip McIntire Richard J. Zahnleuter, Esq.
Federal Emergency Management Special Counsel to the Governor Agency Executive Chamber 26 Federal Plaza Room 229 New York, New York 10278 State Capitol Albany, New York 12224 Jonathan D. Feinberg, Esq.
New York State Department of Mary Gundrum, Esq.
Public Service, Staff Counsel Assistant Attorney General Three Rockefeller Plaza Albany, New York 12223 120 Broadway Third Floor, Room 3-116 New York, New York 10271 Ms. Nora Bredes Executive Cocrdinator Spence W. Perry, Esq.
- Shoreham Opponents' Coalition William R. Cumming, Esq.
195 East Main Street Federal Emergency Management Smithtown, New York 11787 Agency 500 C Street, S.W., Room 840 Gerald C. Crotty, Esq.
Washington, D.C. 20472 Counsel to the Governor Executive Chamber
-Mr. Jay Dunkleberger State Capitol New York State Energy Office Albany, New York 12224 Agency Building 2 Empire State Plaza Martin Bradley Ashare, Esq.
Albany, New York 12223 Eugene R. Kelly, Esq.
Suffolk County Attorney Stephen B. Latham, Esq. **
H. Lee Dennison Building Twomey, Latham & Shea Veterans Memorial Highway 33 West Second Street Hauppauge, New York 11787 P.O. Box 298 Riverhead, New York 11901 Dr. Monroe Schneider North Shore Committee P.O. Box 231 Wading River, NY 11792 i
i j
Lee B. Zeug (/
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: March 5,1987 w
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