ML20215D624

Memorandum & Order (Ruling on Lilco Motion to Strike Testimony of Radford Et Al).* Motion Denied Due to Listed Reasons.Served on 870616

ML20215D624
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/12/1987
From:	Margulies M Atomic Safety and Licensing Board Panel
To:	LONG ISLAND LIGHTING CO.
References
CON-#287-3754 86-529-02-OL, 86-529-2-OL, OL-3, NUDOCS 8706190085
Download: ML20215D624 (3)

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e 00LKEiE0 L" m UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

'87 JUN /r P3 :48 Before Administrative Judges: cirr e .

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Morton B. Margulies, Chairman N" Dr. Jerry R. Kline Mr. Frederick J. Shon ERVED JUN 161987

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In the Matter of ) Docket No. 50-322-OL-3 (EmergencyPlanning)

LONG ISLAND LIGHTING COMPANY l (ASLBP No. 86-529-02-OL)  ;

(Shoreham Nuclear Power Station, Unit 1) June 12, 1987 MEMORANDUM AND ORDER (Ruling on LILCO's Motion to Strike Testimony of Radford Et A1.),_

Introduction:

On April 18,1987 LILC0 filed a motion entitled "LILC0's Motion to Strike Testimony of Radford g al." The motion is directed at'the prefiled testimony of Suffolk County submitted April 13, 1987 by Edward P. Radford, Gregory C. Minor, Susan C. Saegert, James H. Johnson, David Harris and Martin Mayer.

LILC0's reason for requesting that portions of the testimony be struck is that it addresses issues that have been previously litigated. ,

The NRC Staff agrees with LILC0 and supports its motion. The Staff also-suggests that Intervenors must move to reopen the record before the l challenged portions of testimony could be heard. Suffolk County opposes the motion claiming that it must be denied because it (1) mischaracterizes the testimony; (2) fails to recognize the issues 8706190085 870612 .

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2 specified by the Board; and (3) mischaracterizes the Partial Initial ,

I Decision. j i

4 We have previously discussed at length LILC0's argument that matters which have been previously litigated should not be considered in this proceeding. Memorandum and Order (Ruling on LILCO's Motion to Strike the Testimony of Stephen Cole et al.), June 9,1987. We found in j that order as we do here without repetition of the analysis that LILCO's I argument of prior litigation is misplaced when the ultimate issues in controversy are not the same as in the prior hearings. Thus we will deny requests to strike which rely on that argument unless the testimony attempts to prove a thesis which has been previously decided. The fact that much of the proffered evidence is the same or similar to that relied upon by Intervenors in previous proceedings where it was not persuasive does not affect its admissibility in this proceeding where it is offered for a different purpose.

We specifically disagree with Staff that the record must be reopened to consider the challenged portions of testimony because we l

have heard similar testimony before. Our previous decision did not resolve complex matters of human behavior for all cases and all time.

That decision was limited to the specific issues of emergency planning then before us. The record now stands reopened to hear different issues

( of emergency planning for which it is at least possible that similar evidence would produce a different result than it did in the past.

I Whether it will or not we shall know in due course, but it would be improper to exclude it at the threshold.

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Board Ruling, The Board rules in this section on each of LILC0's individual requests to strike based on the principles sumarized or referenced

-herein.

I. Page 20-28 (all of Section V.B., except a single passage beginning at line 15 page 23 and ending at line 6 page 24). Denied.

This is not a matter of the reopening the old issues of " anxiety and hot tili ty. " The testimony is relevant to the issue of adequacy of reception centers and the monitoring of evacuees at the centers.

II. Pages 30-31, beginning at line 4, page 30. Denied. Again this is not a matter of the reopening of the old issue of evacuee anxieties. The testimony is relevant to the matter of the adequacy of plans for decontamination of evacuees at reception centers. It in turn bears on the issue of the adequacy of the reception centers.

III. Page 38, beginning at line 11. Denied. This also is not a previously litigated matter. The passage is an admissible conclusion of 1 the witnesses which has a rational basis in their testimony that was found to be admissible.

ORDER For all of the foregoing reasons LILC0's motion to strike the testimonyofRadfordetal.isdenied.

FOR THE ATOMIC SAFETY AND LICENSING BOARD  :

. W Morton B. Ma'rguMes, Chhirman ADMINISTRATIVE LAW JUDGE Dated at Bethesda, Maryland this 12th day of June, 1987 1