ML20215M110
| ML20215M110 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/08/1987 |
| From: | Latham S, Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3405 OL-5, NUDOCS 8705130091 | |
| Download: ML20215M110 (12) | |
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00CKETED USNRC May 8, 1987 7 MAY 11 P5 :57 UNITED STATES OF AMERICA 0 FF 0 : T ' H : c i.t NUCLEAR REGULATORY COMMISSION 00cnLiuni c v ti.
[T A N ?
Before the Atomic Safety and Licensina Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-S
)
(EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON MOTION TO STRIKE PORTIONS OF FEMA TESTIMONY In accordance with the schedule specified by this Licensing Board, Suffolk County, the State of New York, and the Town of Southampton (" Governments") move to strike portions of FEMA's preflied testimony.
Egg Direct Testimony of Thomas E.
- Baldwin, Joseph H. Keller, and Roger B. Kowleski concerning Emergency Planning Exercise, March 20, 1987 (" FEMA Testimony").
1.
Irrelevant Testimony and Challenges to Board's Decision Admittina Exercise Contention In several places in their testimony, the FEMA witnesses essentially take issue with the admission of particular conten-tions, or subparts, by asserting their belief that issues in those contentions are so-called " planning issues" rather than 8705130091 070500 DR ADOCK 05000 2
gg_3
" exercise issues."
In many cases, this observation about a particular subpart or contention is followed by the additional opinion that subjects are covered by the OL-3 proceeding, or by the PID issued after the 1984 litigation.
In addition, in some cases, such opinions are followed by references to, or quotations from, the PID, and the suggestion that such earlier findings control in this proceeding.
Such opinions are inappropriate in testimony on admitted exercise contentions; they are irrelevant and are not probative on any issue to be decided in this proceeding, nor do the FEMA witnesses in their testimony offer any explanation as to why these irrelevant assertions should be cross examined by other parties or considered by the Board in ruling on the exercise contentions.
Instead, these assertions appear to be merely an attempt to take issue with the Board's decision to admit the exercise contentions, which decision included the finding that, contrary to the FEMA witnesses' assertions, the issues raised by the admitted contentions do in fact relate to the February 13 Exercise and the results thereof.
The arguments made by the FEMA witnesses should have been made in objections to the Board's Prehearing Conference Order, and are not properly included in testimony.
Accordingly, the following portions of the FEMA testimony should be stricken e.
o Reference Contention Testimony to be Stricken
- p. 10 (all) 40.A
" Insofar as the contention asserts that the participants followed the plan, and it is the planning basis which caused the asserted problem, it is FEMA's position that this issue is a planning issue.
FEMA and other parties testified on this issue in 1984.
The'ASLB in its decision (see pages 120 and 121) found no planning defect and concluded that LILCO had taken reasonable steps to minimize the mobilization times for LERO emergency workers.
For a complete discussion of the Board's decision see Section IV.B."
- p. 11, 2nd para.
40.B
" Insofar as the contention asserts that the participants followed the plan, it is FEMA's position that this is a planning issue.
For additional information, see response to CONTENTION EX 40.A."
- p. 14, 2nd para.,
40.E "It is FEMA's position that 1st sent.
this is a planning issue."
- p. 19, 2nd sent.
41.E "The adequacy of plan changes is a planning issue."
- p. 22, last para.
22.A "The new situation is not an exercise issue.
It is a planning issue and has been addressed in the RAC review of Revision 7 and 8 of the LILCO plan.
In addition, the Reception Center issue is the subject of the reopened record under CONTENTION 24 before the l
OL-3 ASLB."
- p. 23, 3rd, para.,
46 As stated in the FEMA response last sent.
to CONTENTION EX 22.A, the reception center issue is the subject of the re-opened hearings before the OL-3 Board."
I f !
. g:
s p.'28, all but 47 "It is FEMA's position that the last sent.
assertions made in all of the parts of this contention are planning issues and are not re-lated to the February 13, 1986 exercise.
It should be noted that all of these issues re-lated to the reception centers are before the OL-3 ASLB.
In fact, in each part of the con-tention there is a reference to Revision 7 of the LILCO plan.
Clearly the contentions are based on assertions concerning a version of the plan which was not exercised.
It should also be noted that the most current revision of the plan is Revision 8 note Revision 7.
The contentions are therefore based on a version of the plan which was not in effect on the day of the exercise."
- p. 29, 1st para.,
49 "It is FEMA's position that all but last sent.
issues regarding evacuee reception centers are currently under review in appeals of ALAB 855.
Also, the OL-3 ASLB has reopened the record on this issue.
Responses to this j
contention and its subparts should therefore be part of the OL-3 Board hearings."
- p. 48, 2nd para.,
38.Q "It is FEMA's position that i
ist sent.
this is a planning issue."
I
- p. 48, 3rd para.,
38.Q "The adequacy of these plan 2nd sent.
changes is clearly a planning issue."
1 I
- p. 55-57 (all) 44 "It is FEMA's position that this is a' planning issue and l
not an exercise issue.
FEMA and other parties testified on shadow phenomenon in 1984.
The i
NRC Atomic Safety Licensing Board in its Partial Initial Decision on Emergency Planning concluded:
...[3 page quota-tion from PID omitted]
The Board's position on evacuation
-. -__=
shadow phenomenon is contained in the Decision,Section I.A.
The NRC rules state that there is'no requirement that there be public participation during an exercise."-
- p. 58, 2nd para.,
22.F "It is FEMA's position that lat sent.
this contention is the same as CONTENTION EX 44 and that both pertain to planning issues not exercise issues."
- p. 71, 2nd para.,
49.C "It is FEMA's position that 1st sent.
this issue is currently being addrersed by the OL-3 ASLB."
- p. 83, last para.,
45.F "The adequacy of plan changes 1st sent.
is a planning issue."
- p. 86, 1st para.,
45.G "The adequacy of plan changes 2nd sent.
is a planning issue."
In addition, the last two sentences on page 70 of the FEMA Testimony,.in the discussion of Contention Ex 40.C, should be stricken because they too are irrelevant to the issues raised in that contention, which involve whether the public was misinformed by LILCO's Exercise EBS messages, and the consequences of LILCO's dissemination of inaccurate information.
The testimony the Governments seek to strike is the following:
"However, FEMA notes that the plan contains two evacuation time estimates; one with traffic control posts staffed and a second with these posts unstaffed.
The additional
-time required to evacuate the 10-mile EPZ with unstaffed Traffic Control Posts is estimated in the plan to be 1.5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br />."
1.
,0 r,
2.
Irrelevant and Improper Testimony on Contentions-Ex 15/16' Finally, the Governments move to strike three portions of
'the FEMA Testimony on Contentions Ex 15/16.
First, at pages 113 2
{
(beginning with the heading " Answer")'through page 115 (ending "For the reasons stated above,"), FEMA quotes from its 1984 testimony on hospital evacuation and also from'the Licensing Board's Partial Initial Decision concerning evacuation of special facilities.
The quotation of prior testimony or a reference to L
prior testimony in this proceeding is proper when it is provided for background or contextual purposes.
In this instance, however, FEMA is quoting its earlier testimony as part of its substantive response to the contention.
That earlier testimony has already been litigated and should not be litigated again in l
this proceeding.
Second, the prior testimony is not relevant and, in essence,' disputes whether the Board should have admitted subparts 16.H, 16 I, and 16.J in the first place.1 As noted i'
above, testimony is not the place to dispute the admission of a contention.
Third, the quotation of the prior Partial Initial
-Decision is not proper testimony, except as background data.
If FEMA believes the Partial Initial Decision is relevant, that is appropriate for findings of fact and conclusions of law, not for prefiled testimony.
Finally, the PID quotation on page 113 is improper because it fails to point out that the portion of the 1
In essence, FEMA appears to be urging that a special facility evacuation contention should not have been admitted because under the LILCO Plan sheltering is the " preferred" protective action for these facilities.
l.
?>
PID dealing with hospital evacuation was subject to a partial reversal by the Appeal' Board.
For all the foregoing reasons, the above-designated portions of the FEMA Testimony at pages 113-115 should be. stricken.
i Second, at page 116 of the FEMA Testimony, FEMA again references its earlier testimony and quotes from the Board's PID relating to school protective actions.
The reference to the prior testimony and the prior decision is improper for the i
reasons described above.
Further, the issue in the instant proceeding concerns the allegation in contention Ex 15.E that procedures for sheltering were not exercised or evaluated during the Exercise.
FEMA responds with references to the position that agreements with schools are not necessary.
That is irrelevant to i
l the issue of.whether in the context of a full participation exer-
~
l cise, procedures for sheltering of school children should have l
been subject to demonstration.
Since the testimony is not rele-v, ant to the issue presented in the contention, it should be stricken.
Third, at pages 132 and 133 and again in one sentence on page 136, FEMA quotes at length from and otherwise references a 1984 General Accounting Office report which urged FEMA to use free play messages in order to introduce surprises into exer-
1 cises.
That hearsay testimony is unrelated and irrelevant to any allegation in Contention Ex 15/16.
FEMA does not attempt to relate the quotation to the contention.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 A
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Lawr'enbe Coe Lanphp" '
Karla J. Letsche Michael S. Miller KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 r
Attorneys for Suffolk County
[
1
.b '
(.l j
v Fabian G.
Palomino Richard J.
Zahnleuter l
Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 l
Capitol Building l
Albany, New York 12224 Attorneys for Mario M. Cuomo, l
Governor of the State of New York l
l l
l l
'l l-
/
(Steph,fn B. Latham
./
Twomey,- Latham & Shea P.O. Box 398
- 33. West'Second Street Riverhead, New York 11901 Attorney for the Town of Southampton...
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9-1 l'
j DOCHETED USNRC May 8, 1987 17 MAY 11 P5 :17 UNITED. STATES OF. AMERICA NUCLEAR REGULATORY COMMISSION OFFILE O. Hg;dAh r t
00CKETanu A sE9vict.
Before the Atomic Safety and Licensino Board-BRANCH
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
)
(EP Exercise)
(Shoreham Nuclear Power. Station,
.)
Unit 1)
)
)
CERTIFICATE OF SERVICE
. I hereby' certify that copies of SUFFOLK COUNTY, STATE OF NEW
- YORK, AND TOWN OF SOUTHAMPTON MOTION TO STRIKE PORTIONS OF FEMA
-TESTIMONY have been-served on the-following this 8th day of May 1987 by U.S. mail, first class, except as otherwise noted.
- JohnLH. Frye, III, Chairman
- Dr. Oscar H.- Paris
- Atomic Safety-and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 i
Mr. Frederick J. Shon*
' William R. Cumming, Esq.
- Atomic Safety and' Licensing Board Spence W.
Perry, Esq.
U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 Federal Emergency Management Agency 500 C Street, S.W.,
Room 840 l
Washington, D.C.
20472 t
f i-4 Anthony F..Earley, Jr., Esq.
Joel Blau, Esq.
General Counsel Director, Utility Intervention Long Island Lighting Company N.Y. Consumer Protection Board 175 East Old Country Road Suite 1020 Hicksville, New York 11801 Albany, New York 12210 Ms. Elisabeth Taibbi, Clerk W. Taylor Reveley, III, Esq.**
Suffolk County Legislature Hunton & Williams Suffolk County Legislature P.O. Box 1535 Office Building 707 East Main Street 6
Veterans Memorial Highway Richmond, Virginia 23212 Hauppauge, New York 11788 Mr. L. F.
Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 l
Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 H Street, N.W.
Smithtown, New York 11787 Washington, D.C.
20555 l
Mary M. Gundrum, Esq.
Hon. Michael A. LoGrande New York State Department of Law Suffolk County Executive 120 Broadway, 3rd Floor H. Lee Dennison Building Room 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York 11792 Martin Bradley Ashare, Esq.
Fabian G. Palomino, Esq.
Suffolk County Attorney Special Counsel to the Governor Bldg. 158 North County Complex Executive Chamber, Rm. 229 l
Veterans Memorial Highway State Capitol Hauppauge, New York 11788 Albany, New York 12224 Mr. Jay Dunkleburger Richard G. Bachmann, Esq.*
New York State Energy Office Oreste Russ Pirfo, Esq.
l Agency Building 2 George E. Johnson, Esq.
Empire State Plaza U.S. Nuclear Regulatory Comm.
Albany, New York 12223 Office of General Counsel Washington, D.C.
20555 l~
r i
l c
.1 t
i David A. Brownlee, Esq..
Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh,' Pennsylvania 15222 229 W.
43rd Street New York, New York 10036 M
Lawrence Coe Lanphir KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - 9th Floor Washington, D.C.
20036-5891 By Hand By Federal Express m.
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