ML20215J653

Memorandum & Order (Ruling on Lilco Motion to Strike Testimony of Papile Et Al).* Lilco 870418 Motion to Strike State of Ny 870413 Prefiled Testimony Denied,W/Exception of Testimony on Recordkeeping.Served on 870618

ML20215J653
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/17/1987
From:	Margulies M Atomic Safety and Licensing Board Panel
To:	LONG ISLAND LIGHTING CO.
References
CON-#287-3810 86-529-02-OL, 86-529-2-OL, OL-3, NUDOCS 8706250069
Download: ML20215J653 (5)

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.i s 00L KE TU UNITED STATES OF AMERICA unac NUCLEAR REGULATORY COMMISSION  :

ATON.C SAFETY AND LICENSING BOARD 'O JUN 18 A9 :53 Before Administrative Judges: OFn:-

00Cht : m.. , 6 Morton B. Marculies, Chairman BMFL" Dr. Jerry R. Kline Mr. Frederick J. Shon SERVED JUN J 81537

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In the Matter af ) Docket No. 50-322-OL-3 (Emergency Planning) ,

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

(Shoreham Nuclear Power Station, Unit 1) June 17,'1987

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t MEMORANDUM AtID ORDER (Ruling on LILC0's Motion to Strike

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Testimony of Papile et al.)

Introduction:

On April 18, 1987 LILCO filed a motion entitled "LILCO's Motion to Strike Testimony of Papile et al". The motion is directed at the prefiled testimony of the State of New York submitted April 13, 1987 by

[ James D. Papile, James C. Baranski, and Lawrence B. Czech.

LILC0's reasons for requesting that portions of the testimony be struck is that it addresses issues that have been previously litigated; it draws improper legal conclusions or it addresses matters not required 1

by NRC regulations. The NRC Staff agrees with LILCO and supports its motion.

New York opposes the motion claiming that the testimony does not I address previously litigateri issues; that expert witnesses may interpret section J.12 of NUREG- 06E4 in the light of their status "as emergency planners"; that LILCO's interpretation of record keeping requirements is 8706250069 870617 PDR Q

ADOCK 05000322 PDR p.

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too narrow and that provisions for record. keeping fall within the scope i of the overall adequacy of monitoring procedures;' and that LILC0's provhion for transporting individuals to a hospital when they cannot be decontaminat6d at reception certers is directly relevant to the issue of ,

whether the reception center scheme can be implemented in a way to  :

protect health and safety.

We have previously discussed at length LILCO's argument th'a t matters which have been pieviously litigated should not be considered in ,

this proceeding. Memorandum and Order (Ruling on LILC0's Motion tc Strike the Testimony of Stephen Cole et al.), June 9,1987. We found in that order as we do here without repetition of the analysis that LILC0's 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 also analyzed LILC0's and the NP.C Staff's views on the scope of the proceeding in our previot.s order. We concluded that the Appeal I l

Board's remand order in ALAB-832 required a broader interpr6tation of  !

the scope of this proceeding than LILCO or the Staff would have us find.

We considar requests to strike based on thf s argument in that light.

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3 Board Ruling The Board rules in this section on each of LILCO's individual requests to strike based on the principles summarized er referenced herein.

I. Page 9; paragraph in mid page beginning with "in addition" and ending "from TMI". Denied. The testimony is relevant to the issue of adequacy of monitoring at reception centers which has not been previously decided in this case.

II. Page 8, 11, 12-14; first sentence on page 8; last paragraph on page 11; passage on pages 12-14 beginning with "Using data pertaining" on page 12 and ending "Krimm Memorandum must be rejected" on_page 14.

We rule separately on each request as follows:

1. Sentence on page 8. Denied. e witnesses testimony is given in their capacity as emergency planners who would be expected to interpret the requirements of NUREG 0654 section J.12. The testimony is not impermissible legal opinion.

2. Paragraph page 11. Denied. The witnesses testimony is given in their capacity as emergency planners who would be expected to interpret the requirements of NUREG 0654 section J.12. The testimony is not impermissible legal opinion.

3. Passages on pages 12-14. Denied, The testimony in context is not simply a short legal brief on the Appeal Coard's decision in ALAB-855 and this board's decision in LBP-85-31 as asserted by LILCO.

The witnesses' answer provides their basis for disagreeing with the Krimm Memorandum and the 20% planning basis it suggests. If prior board decisions are a part of that basis, nothing in NRC regulations prevents

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them from saying so. LILCO's objection is to the weight to be accorded the testimony and not to its admissibility.

III.Section III.3, pages 22-23. Granted. The New York testimony i expresses dissatisfaction with LILC0's plans for keeping records of the identities of evacuees passing through the reception centers. LILC0 argues that this issue was not admitted by the Board's December 11, 1986 Memorandum and Order, and that there is no basis in the regulations for a requirement that identities of evacuees be recorded even though such t records might be desirable. New York argues that record keeping is an integral part of monitoring, and it urges the Board to read section J.12 of NUREG-0654 to include record keeping as a regulatory requirement.

The Board agrees with LILC0 that the Papile panel testimony  :

proposing the recording of the " identities of all people going through reception centers for purposes of reuniting families, providing 6ata for medical follow-up, and other such reasons "does not materially relate to the matters at issue in this proceeding. Further, New York has not provided an adequate regulatory basis upon which a board could rely upor, to enforce an order to change the plan or deny an operating license even l if the testimony was accepted as true. Neither has New York provided a rational based on radiological public health and safety why the Board should interpret section J.12 as they urge when the section itself is silent on the matter. New York acknowledged in its response that record keeping is included as an implementing procedure in the emergency plan.

Under the decision of the Appeal Board in ALAB-732, boards are not to litigate implementing procedures in emergency planning proceedings.

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i 5 i Louisiana Power and Light Corepany (Waterford Steam Electric Station, Unit 3.), ALAB-732, 17 NRC 1076, 1106-1107, (1983).

IV. ' Paragraph in middle of page 30 at lines 8-15. Denied. The plan for transporting contaminated persons to hospitals is one element among many that bears on the question of adequacy of reception centers for decontamination which is within the scope of issues admitted by the i Board. Further, the matter at issue does not lack regulatory basis for our consideration because it bears directly on a matter of radiological protection of.public health and safety.

ORDER For all of the foregoing reasons LILC0's motion to strike the testimony of Papile et al. is denied, with one exception. The request to strike testimony which addresses record keeping in section III.3 is granted for the reasons stated above.

FOR THE ATOMIC SAFETY AND LICENSING BOARD hotton B. Margulies, [tiairman ADMINISTRATIVE LAW JU5GE Dated at Bethesda, Maryland this 17th day of June, 1987.