ML20215M034

Memorandum & Order (Ruling on Govt Motion to Strike Portions of Lilco Testimony on Suitability of Reception Ctrs).* Intervenors Motion to Strike Portions of DE Donaldson & CA Daverio Testimony Denied.Served on 870511

ML20215M034
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/07/1987
From:	Margulies M Atomic Safety and Licensing Board Panel
To:	NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY
References
CON-#287-3422 86-529-02-OL, 86-529-2-OL, OL-3, NUDOCS 8705130069
Download: ML20215M034 (9)

Text

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USNRC-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 7

ATOMIC SAFETY AND LICENSING BOARD

'87. MAY 11 kl :15-Before Administrative Judges: OFFICE C Er 4-DOCr"'hv.nf "Q. < 3 Morton B. Margulies, Chairman Dr. Jerry R. Kline Mr. Frederick J. Shon . SERVED MAy 111987 .

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In the Matter of ) Docket No. 50-322-0L-3 (Emergency Planning)

LONG ISLAND LIGHTING COMPANY (ASLBPNo. 86-529-02-OL)

(Shoreham Nuclear Power Station, Unit.1) May 7, 1987 .

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MEMORANDUM AND ORDER

> (Ruling on Governments' Motion to Strike Portions ,

of LILCO's Testimony on the Suitability of Reception Centers)

Introduction:

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On April 20, 1987, Intervenors filed a motion pursuant to 10 C.F.R. 2.743(c) to strike portions of the written prefiled testimony of Dale E. ,

Donaldson and Charles A. Daverio, who are presented as witnesses for ,

LILCO. LILCO, in an answer filed April 24, 1987, opposes the motion.

In this Memorandum and Order, we deny Intervenors' motion to strike.

a. The Donaldson Testimony The disputed Donaldson testimony involves his statement that he was t

part of a three-man team that drafted a document that was the precursor

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of NUREG-0654 and that their draft was used by a FEMA /NRC Steering Consnittee as a basis for NUREG-0654. He further stated that when they wrote the precursor document, they did not have a specific number of people in mind that would have to be monitored in a radiological 8705130069 870507 PDR ADOCK 05000322 G PDR

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emergency, however, they believed that only a small percentage of the.

EPZ would require monitoring. y Intervenors argue that the Donaldson' testimony should be stricken as-irrelevant, imaterial and prejudicial. Governments claim that there .

is no evidence presented-in the LILCO testimony that Donaldson's and his  ;

co-drafters' beliefs were in any way incorporated in Section J.12 of -

NUREG-0654. Donaldson's testimony was that his group's intention was that offsite emergency plans should include some capability of monitoring the general public. The idea, however, was not contained in ,

single clause like J.12 but rather was implicit throughout the group's. ,

draft.

Intervenors assert that the LILCO testimony establishes no link between the " precursor" document and the language or intent of Section They claim that in the absence of such a link the Donaldson' ,'

J.12.

testimony is both irrelevant and immaterial. They also claim his role as a co-drafter of the precursor document does not qualify him to address whether LILCO's emergency plan and procedures comply with Section J.12 of NUREG-0654, as there is no evidence that he had any input whatsoever on the issue.

Intervenors assert the best evidence rule requires the production

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of the precursor document and that his recollection is not the best evidence of the precursor document. They claim his recollections are hearsay and are thus unreliable and will only serve to mislead the

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Board. The Governments argue that the absence of the precursor document -

will deny them the ability to conduct effective cross-examination of Mr.

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t Donaldson and that the Board will have little evidence on which to assess the credibility of the testimony.

LILC0 claims Intervenors' argument on relevance goes to the weight of the testimony rather than its admissibility. They state Mr.

Donaldson can be cross-examined on why he thinks his document was a basis for NUREG-0654. ,

Applicant claims the Donaldson testimony is but a link in the chain of the evidence it is presenting and this part of his testimony cannot be viewed in isolation. They discount any reliance on Duke Power Co.

(Catawba Nuclear Station, Units 1 and 2), ALAB-335,-4 NRC 397, 416 (1976), where a staff " working paper" was found to have no legal .

significance for any NRC regulatory purpose. Apparently the working _

s paper was offered in the proceeding because it contained matter at variance with an existing regulation.

LILCO argues that Mr. Donaldson's experience of working on the precursor document is also relevant because it bears on his qualifications to testify. t LILCO asserts that the best evidence rule does not bar the Donaldson testimony.- So far as LILC0 knows the precursor document does not exist so that under the best evidence rule, other evidence of the contents of a writing is admissible. Furthermore, Applicant states that the best evidence rule applies to proving the content of the terms of a writing. Here the precise contents of the precursor document are not as important as the intent of the drafters, and Mr. Donaldson's testinony is the best evidence of that.

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Finally, LILCO argues that Intervenors will not be prejudiced by the Donaldson testimony; they have shown no reason why a missing document prevents them or the Board from asking questions.

b. The Daverio Testimony The disputed Daverio testimony is that given in response to a question on the monitoring capacity (in terms of percent of EPZ <

population) of relocation centers for certain nuclear plants in New York State other than Shoreham. Witness Daverio produced a table with data, ,

and in an introduction stated it was, "[b]ased on contacts made by my. ,

staff with county and utility personnel at several sites."

Intervenors assert that the Daverio testimony consists of at least three levels of hearsay, which is inherently unreliable. They state that hearsay testimony is only properly admissible in administrative proceedings where it is accompanied by sufficient indicia of reliability. Furthermore, Intervenors' claim that LILCO's refusal to identify the sources contacted make the hearsay testimony even more unreliable. The Governments would have the Daverio testimony stricken as unreliable hearsay testimony that is also prejudicial to Intervenors.

They assert that they are denied the opportunity to conduct an appropriate investigation of the basis of the table for purposes of effective-cross-examination.

Lastly, Intervenors claim that the monitoring capacities of relocation centers for selected New York State nuclear facilities other than Shoreham are also irrelevant to the proceeding. They state that the Board has defined the scope of the hearing to be the adequacy of

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LILCO's provisions for monitoring at its reception centers. Intervenors consider the monitoring capacity at other locations to have no bearing as to this proceeding.

LILC0 argues that Intervenors' complaint about multi-leveled hearsay being inherently unreliable goes to the weight of the testimony and not its admissibility. Applicant asserts that the names of the people from whom LILCO got its information are not important nor are they essential to Intervenors' case. It states it is not credible that j the Intervenors are not able to independently verify or rebut LILCO's information about the capabilities of New York counties.

LILC0 is concerned about harassment and intimidation of the people.

who supplied the information. They suggest that Intervenors develop information on the data by cross-examination to show it is unreliable i

and entitled to little weight.

As to the matter of Intervenors' claim that information on  :

I reception centers for nuclear facilities other than Shoreham is irrelevant, LILCO asserts the argument has already been tried and rejected many times in this proceeding.

Applicant would have the Board deny Intervenors' motion to strike the cited portions of LILCO's written testimony.

Discussion The Board finds that the Donaldson testimony is not irrelevant, immaterial or prejudicial. -

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1. His- testimony on the s'o called precursor document and-its relationship to Section J.12 of NUREG-0654 is relevant and material because it goes to his qualifications to testify as an expert 'on the

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-issue of the number of people that are'to monitored in a radiological emergency. . Even should it ultimately be determined that he had no input . 4 into Section J.12, it does not bar the admissibility of the testimony. ,

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An expert need not take part in the formulation or preparation _ of a .

document for the expert to express an admissible opinion about it.

We see. the foregoing prin' ciple followed in another area of Mr. _ ,

Donaldson's prefiled testimony. Mr. Donaldson was unchallenged in the '

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i answers he gave to Questions 13 and 14 of his prefiled testimony,.where he expressed an opinion on the reasonableness of a FEMA guidance memorandum on the capacity of relocation centers. LILCO testimony at ,

9-11. In the opinion, he relied upon a section in NUREG-0654. At no I

. point was there any assertion that Mr. Donaldson had anything to do with .

the preparation of the FEMA memorandum or the NUREG section that he  ;

relied upon.

Whether or not Mr. Donaldson had any input into Section J.12, in .

the area at. issue, is a factor to be considered in weighing his testimony on the interpretation of that section. It is not a basis for striking his testimony as irrelevant and immaterial.

The Governments' claim that there is no evidence presented in the -

LILC0 testimony that Donaldson's and his co-drafters' beliefs provided a basis for NUREG-0654 is incorrect. Mr. Donaldson's testimony provides evidence on the point. Again, it is a matter as to how much weight it 1

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't should be given. - Because the testimony is not independently supported does not mean it should be struck. Its admissibility is not affected  ;

for that reason.

We do not find the Catawba case to have any applicability. It appears to involve the attempted use of a " working paper" to counter a ,

Commission regulation. The situation is completely different than the one before us.

The absence of the original precursor document should not result in ,

striking the testimony. The best evidence rule does provide that in f

proving the terms of a writing, where the terms are material, the original must be produced unless it is shown to be unavailable for some _ _

reason other than the serious fault of the proponent. E.Cleary(ed.)

McCormick on Evidence 704 (3d ed. 1984).

Here the express terms of the document do not appear to be material . The idea that emergency plans should include some capability -

for monitoring the general public was testified to by Mr. Donaldson as ,

being " implicit in a number of provisions throughout our draft." LILd0 testimony at 8. Further, it appears the original document is not obtainable. Under the rele other evidence can be provided to establish the contents of the writing. This certainly could come from the testimony of one who participated in drafting it. Although such evidence is not as beneficial as having the original document, Intervenors have the ability to cross-examine one of its preparers. It is not so disadvantageous a sit'uation as to prejudice Intervenors.

We find that Intervenors have not sustained their burden to strike the Donaldson testimony.

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In regard to the Daverio testimony, the Board, in' a Memorandum and Order issued April 30, 1987, ordered Applicant to make available to Intervenors the information and documents Intervenors seek in their April 13, 1987 motion to compel, that underlie the table Mr. Daverio presented in answer to Question 16, and his' introduction to'it. It includes the identification of the individuals that furnished the data.1 The foregoing action should remove Intervenors' cause for complaint. It should permit them "the opportunity they desire to -

conduct an appropriate investigation of the basis of the table for effective cross-examination."

Hearsay testimony is admissible in administrative proceedings where-

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f it is accompanied by sufficient indicia of reliability. Information that can be used to confirm the reliability of the testimony is to be furnished to Intervenors, which should settle the matter. [

Intervenors' claim that the monitoring capacities of relocation.

centers in New York other than for Shoreham are irrelevant to this proceeding is incorrect. This Board previously ruled that the matter.is relevant, something Intervenors wholly failed to mention. See Memorandum and Order (Ruling on LILCO's March 18, 1987 Motion to Compel)

(March 25,1987), at 4; Memorandum Memorializing Ruling on Motion to Compel Response to LILCO's Interrogatories and to Produce Documents  ;

(March 17, 1987), at 4.

J I The order was conditioned on the entry of a protective order that is to shield the individuals that furnished the data from possible harassment, intimidation or pressure.

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9 The Board finds that the subject Daverio testimony should not be ,

stricken.

ORDER Based upon all of the foregoing, it is hereby Ordered that Intervenors' motion of April 20, 1987.to strike portions of LILCO's testimony on the suitability of reception centers is denied.

FOR THE ATOMIC SAFETY AND LICENSING BOARD Mbr' ton B. Margulies,fhairman ADMINISTRATIVE LAW M DGE Dated at Bethesda, Maryland this 7th day-of May, 1987 ,

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