ML20216D126

Memorandum & Order (Ruling on Lilco Motion to Strike Testimony of Dt Hartgen & Rc Millspaugh).* Util Contends That Testimony Seeks to Litigate Road Network from 10 to 40 Miles from Plant.Motion Denied.Served on 870623

ML20216D126
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/22/1987
From:	Margulies M Atomic Safety and Licensing Board Panel
To:	LONG ISLAND LIGHTING CO.
References
CON-#287-3870 86-529-02-OL, 86-529-2-OL, OL-3, NUDOCS 8706300460
Download: ML20216D126 (10)

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'W 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION )

87 JUN 23 A10:31 ,

ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: cru 00cFi s. . .

A' Morton B. Margulies, Chairman M" Dr. Jerry R. Kline Mr. Frederick J. Shon 3ggyg jgN 2 3l987 In the Matter of Docket No. 50-322-OL-3 (EmergencyPlanning)

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

(Shoreham Nuclear Power Station, Unit 1) ) June 22, 1987

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MEMORANDUM AND ORDER (Ruling on LILC0's Motion to Strike the Testimony of David T. Hartgen and Robert C. Millspaugh)_

Introduction On April 20, 1987 LILCO filed a motion entitled "LILC0's Motion to Strike the Testimony of David T. Hartgen and Robert C. M111spaugh." The motion is directed at the prefiled testimony of the State of New York, submitted on April 13, 1987 by the authors named in the motion.

LILC0 cited in its motion four reasons for striking portions of the testimony:

1. The testimony seeks to litigate the road network from 10 to 40 miles from the plant, something that is not contemplated b/ Commission regulations or prior orders of the Licensing Board or Appeal Board.

2. The testimony is based on population projections for the future. The regulations do not require emergency planners to sh1w present capacity for future populations.

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.3. The1 testimony seeks to reopen the already litigated " shadow phenomenon".- In its' specific objections to testimony LILCO also.

, reque ded that. testimony which postulates extravagant scenarios be struck..

Y '4. The testimony-seeks to relitigate other already' litigated

' issues such as road construction..

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The State opposed a11? requests to strike portions of the' testimony.

It defended the challenged testimony as follows:

l'. The road ~ network' testimony is admissible because ths Appeal..

' Board specifically ordered the Licensing Board to consider accessibility

=of. reception centers to evacuees in its remand order. The. testimony is relevant to issues of transportation identified by the Licensing Board

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in Lthis proceeding and LILCO itself has submitted . testimony on

. transportation issues.

-2.. The.- use of projected population figures in its analysis is acceptable because its projections are limited to-five years lfrom now; the'use ;of the projections . injects conservatism into the' traffic

& analysis; LILCO itself does' not use current data on popu1'ations, having g

in the.past used both outdated figures and population projections.

3. LILCO's assertion of inadmissible relitigation of the' shadow phenomenon is wrong because the testimony addresses monitoring seeking behavior which is not the same as the previously-litigated evacuation 4 shadow issue. Further, the testimony is within the scope of issues admitted.by the Board to this proceeding and in any event an expert is entitled to use the data he believes is needed for a complete analysis and it is for the Board to decide what weight to give it.

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4. LILCO's fourth reason ~ for striking testimony based on a  ;

relitigation argument is. wrong because the specific . issue now before us

'has not been litigated before. Further, the testimony addresses the same subject which the Appeal Board ruled should have been admitted in~ 1 the prior ' reception center proceeding, j i

The NRC Staff supports LILCO's motion'to strike for the' reasons l 1

given by LILCO. The Staff also argues that portions of the disputed j i

testimony address evacuation time estimates, vehicle requirements, j adequacy of public information and EBS messages which were issues  !

rejected by. the Board in its Memorandum and Order of December 11, 1986 l

which defined'the-scope of'the. reopened hearing.  !

Discussion j 1

i The Board has consistently denied motions to strike in this proceeding that are based on a relitigation argument if the issue of emergency planning is different than that previously litigated even if j 1

the evidence presented is the same or similar to evidence considered l before. We will continue to take that view in ruling on this motion.

The Board is unconvinced by LILCO's argument that consideration of the road network from 10 to 40 miles creates a de facto 40 mile evacua-tion zone contrary to NRC regulations. This is a reopened proceeding in which we are to consider among other things the accessibility of the

-reception centers to evacuees. The Board identified transportation and traffic problems and adequacy of evacuation routes as matters that were within the scope of the reopened proceeding in its Memorandum and Order of December 11, 1986. We shall therefore admit testimony that addresses ,

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4 the adequacy of. evacuation routes because it is relevant to admitted issues in this case. LILC0 requests the Board to draw at the threshold an impossibly precise line between admissible and non-admissible testimony in a case having a tortuous history of disagreement on that very matter. The prudent course. is therefor e to hear the testimony and '

accord it the weight it deserves. The nature of this hearing is one of j 1

that heard by Judges without a jury. In ruling on the motion, we need' not be'as restrictive as we would be if a jury were involved.

The Board disagrees with LILCO's analysis of Intervenors' reliance on projections of future population or traffic as basis for their conclusion that the reception centers will prove inadequate. LILC0's .j

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belief that " Analyses that attempt to show that the present reception centers cannot handle future populations that (sic) are outside the scope of_ admitted issues. If future developments, such as growth in

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population, increase emergency planning needs, that is a matter to be addressed.in the future" is erroneous because it is in conflict j with NRC case law and Commission policy. In ALAB-732 the Appeal Board i addressed the predictive nature of findings on emergency planning as follows:

. . . At one time, the agency's regulations required a finding that 'the state of onsite and offsite emergency

. preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency' . . . In July 1982, the Comission amended this provision by clarifying that 'the findings on emergency planning are predictive in nature' and by eliminating the reference to the ' state' of emergency preparedness. *-* *

• The Commission emphasized, however, that there should be reasonable assurance prior to license issuance that there are no barriers to emergency planning i implementation or to a satisfactory state of emergency I preparedness that cannot feasibly be removed."

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Louisiana Power and Light Company'(Waterford Steam Electric 3),

- ALAB-732,-17NRC1076,-1103-1104(1983).

l .The ' predictive. nature of emergency planning findings may ring to the advantage,of applicants'-(as it 'did in the case cited)'when it permits applicantsLto commit to future actions to meet. requirements that.

it has'not' met"at the moment 'of irial. The Commission statement makes- o plain however that.we'have a' continuing duty to assure ourselves that there are-no barriers to emergency planning implementation'that cannot'-

be feasibly removed prior.to license issuance. Thus predictive

infonnation potent'ially adverse to a reasonable assurance. finding is;as admissible.in an NRC proceeding as predictive information which. supports siuch a finding. . LILC0 is generally correct in its-assertion that future developments'must be addressed in the future. This.is so however

.y because most of.the future is now unknown to us and therefore not often amenable to precise' assessment. There is nothing in NRC regulations however which would in principle prohibit a board from acting on reliable projections of population or traffic that weighed against issuance of an operating license. ~.The operative word is of course ,

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" reliable". LILCO's objection therefore is to the weight to be accorded testimony-that relies on projections and not to its admissibility. We also conclude that the extravagant scenario argument is one of weight

.not admissibility.-

Board Ruling The Board rules in this section on each of LILC0's individual requests to strike based on the principles discussed above.

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1. Page 7; last paragraph. Denied. Intervenors' views as to how l future growth will affect the reception centers is admissible for the-reasons stated above. Objection is to the weight to be accorded the j

testimony and not to its admissibility.

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2. Page 11, numbers .1 and 2 of the six separate aspects-listed on i i

c page 11 and 12. Denied. The. testimony addresses the adequacy of l evacuation routes which is within the scope of issues admitted by the i Board.

3. Page 13, line 4 and ending page 14, line 4. Denied. .The testimony criticizes LILC0's planning assumption that people w111 follow l the routes LILC0 assumes.as a basis'for the witnesses conclusion'that traffic delays will impede individual's arrival at reception centers.

1 Transportation and traffic problems that might arise as a result of the location of the reception centers are within the scope of issues i

admitted and they have not been decided previously.

4. Page 15, line 8 through to the end of page 15. Denied. The testimony addresses the adequacy of routes between the EPZ and the reception centers which has not been litigated before and is within the j i

scope of issues admitted by the Board. (Page 18, item 1 of the Order). {

I 5. Page 17 first paragraph, and second paragraph extending through the top three lines of page 18. Denied. The principle thrust of the testimony is that LILC0's estimates of background traffic may not be accurate. The testimony is within the scope of admitted issues. As l t

discussed above, we conclude that it would be improper to exclude -

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otherwise admissible testimony because it addresses future projections of traffic. Also, we will not exclude testimony which is arguably j

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= derivative because witne'sses.are entitled to state the bases for their conclusions. 'LILCO's objections.are. to the weight to be ' accorded the .i testimony.and;not to its admissibility. li:

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(6. Page 19 Section D. -Denied. The testimony'is relevant to ..

j Ltrhffic and radiological monitoring issues admitted in this proceeding. . l

'LILCO objects on the grounds that the' testimony is' derivative of-that of o s

other witnesses and that it' seeks to reopen the shadow phenomenon issue. f

.As noted above we deny the request because we expect witnesses to I

-provide basesLfor their conclusions and because the' evidence is offered j

.i for different_ purposes than in_ previous proceedings. j i

7. Page 20',' phrase at' lines;15-16. Denied. The testimony dealing-with the adequacy of intersections 'or ramps on evacuation. routes between the EPZ and the reception centers is within the scope of admitted

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issuest For reasons already stated, we reject the~ assertion'that this

. kind of testimony is an attempt to expand the'EPZ in challenge to NRC regulatior:s.

8. Page.22, beginning with "The delay" in lines 5-6 and ending with " procedure in general" on line 7. Denied. The testimony dealing

.with the consequences of traffic delay addresses one element of i transportation or traffic problems .that might develop that could affect the' utility of the reception centers which is an issue that has not been-previously litigated. ,

z 9. Page 26 and first 6 lines of page 27. Denied. The testimony dealing with the consequences of road repairs addresses one element of transportation or traffic problems that could affect the utility of

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reception l centers which is an. admitted issue-that has not been previously litigated.

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'10. 4 Page'.30, lines 12-13; lines 17-19; phrase.at line 22; phrase beginning on' last 11ne 'of page 30 and carrying over. to page 31. Denisd. --

The.. testimony constitutes a summary of witnesses' opinions which rest' ont evidence we found admissible. ' LILCO's argument that.the testimony is an '

- attempt to relitigate . issues or is an impermissible attempt to' expand--

f the EPZ to:40' miles isLrejected for reasons discussed above..

11. Pagei36, full sentence at the bottom of the page, beginning

,. "The third number."' Denied. We reject LILCO's' argument that. the

. . testimony is an attempt to reopen the issue of s ahdow:p enomenon h or. the-

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usefulness of. opinion polls for reasons' stated'above. The testimony is relevant to whether there are factors that.could. affect the utility of reception centers;

' 12. Page'37,'beginning "in addition" and ending ("Apr11 13, 1987")

at l'ine 8. Denied. We do not' accept LILC0's' argument that the testimony is an impermissible' attempt to relitigate the shadow phenomenon for reasons stated in our discussion of issues.

13. Page-39, last 4 lines on the page describing " DOT 4",

- and " DOT 5". -Denied.- LILCO's objection of extravagant assumptions addresses.the l

. weight to be accorded to the testimony and not its admissibility. For=

' reasons stated above, we reject the prior litigation argument as a reason for, striking shadow phenomenon testimony.

14. Page 41, Lines.7-14. Denied. We. reject LILCO's prior l

litigation argument and its expansion of the EPZ argument for reasons I

stated above.

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, 15. Pagel43-46, beginning line 10 page 43 and ending.on line 3 1 page 46. Denied. We do not accept LILCO's extravagant assumption argument as a _ reason for striking testimony. -The objection is to the h weight'to be accorded and not to admissibility. For reasons stated in our discussion above, testimony that relies on projections raises.-

questions of reliability that goes to weight not of admissibility.  ;

16. Page 48-50, all of 48 except~ footnotes; through.line 9 page I

L !49. Beginning "In both Scenarios 4 and 5," line 21 page 49 through line 5 page 50. Denied. LILC0 requests that DOT 4 and DOT 5 testimony' be stricken for reasons cited previously. We deny the request on the same basis, since we have previously admitted DOT 4 and DOT 5 testimony.

~17. -Page 52, Denied. All requests to strike on this page are denied because they are based on-LILCO's relitigation argument or. extravagant scenario argument which we reject for reasons previously stated.  ;

18. Page 60-63. Denied. LILC0 objects' to any reference to DOT'4 and DOT 5 which we have rejected for reasons _ already stated.

19. Page 74, beginning with "As our analysis demonstrates" line 5 and'ending "its Plan" line 14. Denied. The witnesses sumary of their conclusions is admissible because their testimony'on which the sumary is based has been found to be admissible.

20. Exhibits 7, 8,18 through 21A, 21B, 23, 24, and 27. Denied.

Al'1 requests to strike exhibits are based on LILCO's relitigation argument or its extravagant scenario argument which we have rejected' repeatedly in requests to strike testimony. Since we have not stricken the testimony as requested, we shall not strike the exhibits which relate to it.

10 Eh ORDER f

Based upon all of the foregoing reasons it is hereby ordered that LILCO's motion to strike the testimony of David T. Hartgen and Robert C..

M111spaugh is denied.

FOR THE ATOMIC SAFETY AND LICENSING BOARD Morton B. Ma'rguries. /hairman ADMINISTRATIVE LAW JUtGE Dated at Bethesda, Maryland this 22nd day of June,1987 1

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