ML20214W573

Memorandum & Order (Ruling on Lilco Motion to Strike Testimony of Cole Et Al).* Lilco 870418 Motion to Strike Cole Panel Denied,W/Exception of Speculative Testimony Contained in Request M.Served on 870610

ML20214W573
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/09/1987
From:	Margulies M Atomic Safety and Licensing Board Panel
To:	LONG ISLAND LIGHTING CO.
References
CON-#287-3709 86-529-02-OL, 86-529-2-OL, OL-3, NUDOCS 8706160085
Download: ML20214W573 (12)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0tWISSION

'87 JUN 10 A9 :54 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: [cN f.m s Y 76 BRAN &

Morton B. Margulies, Chaiman Dr. Jerry R. Kline Mr. Frederick J. Shon SERVED JUN 101987 In the Matter of Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY )

(Shoreham Nuclear Power Station, Unit 1) June 9, 1987 MEMORANDUM AND ORDER (Ruling on LILCO's Motion to Strike the Testimony of Stephen Cole et al.)

Introduction:

On April 18, 1987 LILC0 filed a motion entitled, "LILCO's Motion To Strike The Testimony '.f Stephen Cole, Et A1." The motion is directed at prefiled testimony of Suffolk County, submitted April 13, 1987, by Stephen Cole and others, in a panel, on the issue of the planning basis for Applicant's three reception centers.

The basis given for striking most of the testimony is that it is outside the admitted issues in this proceeding because it addresses matters that have already been litigated in the original emergency planning hearings in 1983 and 1984. Further, it is duplicative of testimony filed in the exercise proceeding (Docket No. 50-322-OL-5) currently being heard.

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Applicant asserts that most of the Suffolk County testimony it seeks to strike is related to what it terms the " shadow phenomenon."

LILCO defines it as a hypothesis that people will not follow emergency advisories because of overeaction and that people will evacuate from areas outside of that from which they were instructed to vacate. LILCO considers the shadow phenomenon as a generic issue that has been exhaustively litigated in the Shoreham proceeding; and that the prior findings are binding on the parties under the doctrine of res judicata.

Applicant claims that the Appeal Board authorized a shadow phenomenon issue to be heard in this remanded proceeding, but that it was limited, in effect, to (1) the notion that the location of the reception centers will affect people's perception of the risk and (2) the notion that people who live in the immediate vicinity of the reception centers will run away when the centers are used for monitoring and decontamination.

Applicant mentioned that its own written testimony goes beyond the scope of the admitted contentions. It explained that its reason for i

doing this was that from the deposition of Intervenors' witnesses it appeared they intended to testify once again to already-litigated matters like shadow phenomenon. LILCO therefore addressed these subjects to some extent as a precaution against the possibility that the Board might reopen the record on some of the already litigated matters.

LILCO advised that the fact that a topic is addressed in LILCO's written testimony cannot be taken as LILCO's view on what the proper scope of the admitted issues is.

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3 Suffolk County submitted a response on April 30, 1987 to the LILC0 motion to strike the testimony, asserting that the motion was groundless and that it must be denied in its entirety.

Intervenor states that the subject testimony addresses the most basic question in the proceeding, the adequacy of the planning basis for the reception centers. In so doing, the testimony 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.

Suffolk County asserts that the testimony of the Cole panel addresses the issue of " monitoring-seeking behavior"--behavior which is distinct from the evacuation shadow phenomenon and which is clearly relevant to reception center issues identified by the Board, i.e., who will come to the reception centers for monitoring. Intervenor claims LILCO misleads by treating the two behaviors as a single one, and then claiming res judicata on the issue. Suffolk County for support of its own position relies in part on the testimony of LILCO's witness Dr.

Mileti in this proceeding, where in his testimony he stated that the behaviors were different. The testimony is as follows:

Q: Dr. Mileti, is there a difference between

" evacuation shadow" and " monitoring shadow"?

A: [Mileti] Yes, there is. As ! discussed in my written testimony in the OL-5 proceeding these are two different phenomena. There, shadow evacuation is defined as " voluntary evacuation of persons not advised to evacuate" and monitoring shadow is defined as " voluntary reporting of persons to the reception centers by members of the public not advised to report for such monitoring."

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Both these phenomena are discussed in that testimony.

LILCO Testimony at 12,13 (March 30,1987).

Intervenor asserts that the Cole testimony clearly goes to the number of people that will seek monitoring and not the number involved in the evacuation shadow. The County further asserts that the survey Dr. Cole made is focused specifically on monitoring as opposed to evacuation.

As to LILCO's claim of similar testimony being offered at the OL-5 hearing, Intervenor states it is irrelevant. The County says the similar testimony goes to the nature and methodology of a survey and the nature and the results involving the focus groups. It was said this only provides the basis for some of the witnesses' testimony.

Intervenor further explains that to the extent testimony offered in the OL-5 proceeding is offered in this proceeding, it is offered for completely different purposes and addresses issues specifically identified in this proceeding. Tha County suggests that LILC0 and Intervenor can work out a procedure for the introduction into this proceeding of any duplicative testimony in the OL-5 proceeding on survey procedures and methodology, if the Board feels it would save time.

Another ground Suffolk County offers for denying the motion to strike is that LILCO raised the issue of monitoring seeking behavior and that the County's witnesses are entitled to address it and the reasons for its occurrence. In support of its position, it cites the Krinn Memorandum which is attached as Exhibit L to the LILCO testimony.

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Intervenor states that in the memorandum, Richard W. Krim of FEMA, sets forth that 20% of the evacuees is the appropriate planning bases for the reception centers. This was the upper end of the range given of 3 to 20 percent of evacuees that proceed to relocation centers or shelters. The upper end of the range was selected in the Krim Memorandum because "for radiological emergencies, it is reasonable to assume that additional evacuees, to allay their concerns and fear over radiation, will go to relocation centers whether or not they have been exposed to radiation."

Intervenor asserts that the County's testimony is no more outside the scope of this proceeding than is LILCO's own exhibit, the Krim memorandum, in discussing evacuees and their concerns and fear over radiation.

As to LILCO's request to strike testimony which discusses fear of radiation on Long Island on the basis that it has already been litigated, Intervenor claims that Applicant is attempting to obscure the difference between evacuation shadow and monitoring seeking behavior.

It further states that LILCO is attempting to exclude an important part of the basis for the County witnesses' conclusions.

Staff filed a response to the LILCO motion to strike on May 4, 1987. Staff for the most part agreed with Applicant's positions. It disagreed with LILCO on the relevancy of testimony dealing with the specific response of people to EBS messages. Testimony was given in the OL-5 proceeding on the number of people that would respond to the messages. Staff concluded the testimony should be admitted. Staff also was of the opinion that it was not objectionable for the experts to

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include legal citations as footnotes to their testimony. It did not agree that the testimony on wind shifts was inadmissible, it being not wholly irrelevant to the issue of whether people might seek monitoring at relocation centers. The Staff did not agree that the opinion poll should be stricken in its entirety, but that those portions which relate to monitoring should be admitted in this proceeding.

Discussion In this remanded proceeding, the issues to be considered for detemining the adequacy of the reception centers are not as narrow as Applicant indicates.

The Appeal Board stated:

...the[ Licensing]Boardshouldhavetaken the issue before it to be whether there were any factors--including the location of the Coliseum relative to the various portions of the EPZ--that might make the facility unsuitable to serve as the sole reception center for EPZ evacuees. On remand, the Board is to revisit the Coliseum issue in the context of that broader scope . . .

(emphasissupplied)

Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1),

ALA8-832,23NRC135,162(1986).

At issue in deciding the motion is the relevancy of the proffered testimony not the weight it is to be afforded in resolving the question that the testimony addresses. The testimony in question is furnished to establish a planning basis for the reception centers which is relevant to the issue of their adequacy. Intervenors' experts are of the opinion that the number of persons must be higher than that which Applicant

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uses. The Cole testimony in reaching that conclusion relies in part on persons who display the monitoring seeking behavior phenomenon. The Cole panel uses studies it has conducted in observing possible behavior toward monitoring. Part of its conclusions are that preexisting fear of nuclear radiation is a causative factor for the monitoring seeking behavior phenomenon.

At this stage of the proceeding enough information has been furnished to indicate that this monitoring shadow phenomenon is difference from the shadow evacuation phenomenon previously litigated and decided in prior Board decisions. Intervenor's experts do continue to rely upon some of the same kind of data and concepts they relied upon in prior litigated matters that were decided in Applicant's favor.

Because a new issue is involved, the prior litigated data and concepts that were used in an attempt to resolve other issues and may be considered disproven, are not ipso facto irrelevant and inadmissible in this proceeding. Intervenors' experts should have the opportunity to prove their thesis on the new issue, even if the methodology was used unsuccessfully previously on a different issue. It may well be that the testimony may again prove unsuccessful, but that is not the issue before us. The question is whether the testimony is relevant and we find it is sufficiently so to deny requests to strike based on the ground that the evacuation phenomenon was previously litigated. Applicant's objection goes to the weight to be afforded the testimony, a question that is not to be determined at this time. The objection is not meritorious on the question of admissibility.

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8 Further, we do not find the testimony objectionable because the experts are entitled to state what they rely upon to support their conclusions on the plan,ing basis. For the Board to come to a proper decision, it should also know the bases for the conclusions of experts.

Without such infonnation, we are deprived of the means for determining how much weight to afford the Cole panel testimony.

The Board makes the same finding in denying the motion and extends it to all facets of the argument of prior adjudication. The same finding is made as to the argument of the prior litigation of the concept that preexisting fear of radiation on Long Island determines the response of the populace.

Because the Board und the parties are fully familiar with the data and concepts that were previously litigated and described in its decision, Applicant need not go back to square one in attempting to disprove Intervenors' position on th'e new issue.

The fact that similar testimony was offered in the OL-5 proceeding and admitted is an insufficient basis for striking the testimony in this proceeding. Unless the testimony in the OL-5 proceeding can be incorporated in this proceeding, the fact that it is also repeated here is sithout significance. Applicant has not identified the means by l

which the OL-5 record would be incorporated in this proceeding.

Problems include the matter of whether'the issues in both proceedings are the same. It is unlikely that they are. LILCO gives no indication of whether it would stipulate to the admission of the testimony including its cross-exainination on it and whether it would expect to l

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conduct additional cross-examination on the direct testimony. Until these questions are answered there is no basis to strike the testimony because it was admitted in the OL-5 proceeding. We have no objection to the parties working out the introduction of the testimony from the OL-5

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proceeding into this one, but until it is accomplished there is no basis to strike the testimony here.

As to those few instances where the testimony was offered in the OL-5 proceeding and not admitted, it has no meaning unless Applicant initially establish that the issues are the same, which it has not done.

Board Rulings The Board rules in this on each of LILCO's individual requests to strike based on the principles discussed above. There follows each of l the requests to strike and the Board's ruling thereon.

B. Page 11 and first three lines of page 12. Denied. The disputed section is admissible opinion of experts. It is not redundant of earlier testimony because Intervenors may rely on previously developed evidence to prove a different thesis than in previous proceedings.

C. Page 12 (from subhead III on) through page 19 (tenth line).

Denied. The testimony addresses the possibility of monitoring over reaction relating to reception centers, an issue which has not been

, tried before in this case. The fact that similar evidence was not persuasive on a different issue heard previously is irrelevant to the l

issue of admissibility in this case.

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l D. Page 26. Denied. The proffered testimony is relevant to the issue of monitoring response which has not been heard previously. It is therefore not redundant.

E. Page 27 (first five lines). Denied. The testimony is relevant to the issue of monitoring response.

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F. Page 27 (Saegert and Johnson answer). Denied. The testimony is relevant to the issue of monitoring response.

G. Page28(all). Page29(firstsixlines). Denied. The testimony is relevant to the issue of monitoring response.

H. Page 29 (starting at line 7). Page 30 (first paragraph),

i Denied. The testimony is relevant to the issue of monitoring response.

I. Page 30 (second paragrart, starting line 16) to page 36 (first 3 lines). Denied. The testimony is relevant to the issue of monitoring response.-

J.Section III.4 (pages 36-41). Denied. The testimony is relevant to the issue of monitoring response. Further the Board l

disagrees with LILCO that reopening the record is necessary for it to hear evidence about the impact of the Chernobyl accident on public fears. The record is of course already reopened to hear evidence on the adequacy of LILCO's reception centers which includes matters that may affect them.

K.Section III.5 (pages 41-47). Denied. The testimony is relevant to the issue of monitoring response. Intervenors may rely on old evidence to prove a new thesis. The fact that similar evidence was not persuasive in past proceedings does not affect admissibility when

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4 11 the ultimate issues are different. LILCO's objection is to the weight to be accorded evidence previously found to be inadequate. LILCO ultimately may be correct on the issue, but we cannot determine that at the threshold.

L.Section III.6. LILCO moves to strike only a few passages from this section as follows:

a. Citation to caselaw in footnote 28. Denied. There is no showing that it is not a matter within the expertise of the witnesses.

b. Sentence in lines 6-8 on page 50. Denied. The sentence reflects admissible opinion of an expert.

c. Paragraph on pages 50-51 (beginning " Finally" and ending "a Shoreham license"). Granteo. This section is stricken because it is mere speculation by the witness about the motives of others. It is not reliable evidence.

M.Section III.7 on page 54 (beginning "LILCO's Environmental Report" on line 15 and ending with "during an accident" at the end of thepage). Denied. The testimony is relevant to provide a basis for the opinion of experts on wind shifts. LILCO does not object to witnesses conclusions of site meteorology.

N.Section IV (" Conclusions"). Denied. Expert's summary of opinion is admissible when it summarizes admissible testimony.

l 0. Exhibit 8. Denied. The exhibit supports admissible testimony and is itself admissible.

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n 12 ORDER Based upon all of the foregoing, it is hereby ordered that LILCO's motion to strike testimony of the Stephen Cole panel is denied, except to the extent it seeks to strike speculative testimony contained in request M. which is granted.

FOR THE ATOMIC SAFETY AND LICENSING BOARD Morton B. Margulies, E 1 airman ADMINISTRATIVE LAW JUBbE Dated at Bethesda, Maryland this 9th day of June,1987

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