ML20244C160
| ML20244C160 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/11/1989 |
| From: | Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#289-8459 OL, NUDOCS 8904200069 | |
| Download: ML20244C160 (12) | |
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April 1@,#1989 UNITED STATES OF AMERICA
'89 APR 17-P2 :06 l-NUCLEAR REGULATORY COMMISSION before the
' ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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Docket Nos. 50-443-OL PUBLIC SERVICE COMPANY
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50-444-OL OF NEW HAMPSHIRE, gt 3.1
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(Offsite Emergency (Seabrook Station, Units 1
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Planning Issues) and 2).
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APPIJCANTS ' OBJECTION TO THE NATURE OF A MOTION _I_H LIMINE TC PORTIONS OF I
THE PREFILED TESTIMONY OF MAUREEN MANGAN AND JOHN PAOLILLO-Applicants. object to and move this' Board in the nature of a Motion in Limine to exclude as evidence in this proceeding certain portions of the " Testimony of Maureen Mangan and John Paolillo, on Behalf of Attorney General James M. Shannon, Regarding the. Actual Availability of the SPMC's m
Manned Vehicles and Drivers."
In support of their motion,
-Applicants say that the sections of testimony in question are inadmissible as a matter of law.
ARGUMENT The following portions of Mangan and Paolillo's testimony should be excluded, for the reasons noted:
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(1)
Testimony Excluded By Previous Board Order.
On November 17, 1988, in response to one of the
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i violations,by Mass AG of the protective order entered in this 4
proceeding, this Board ruled that "the Attorney General may not use any information about the bus companies gathered after October 7 as evidence or for cross-examination'in this proceeding."
Memorandum and Order (Rulina on Applicants' Motion for Sanctions) at 9 (November 17, 1988).
The bus companies covered by this ruling include Fox Bus Lines, McGregor-Smith Bus Company, and Hudson Bus Lines.1 Despite the Board's clear ruling, Mangan and Paolillo's testimony contains extended discussion of interviews purported conducted with officials of those three bus companies subsequent to October 7, 1988.
That testimony, having already been excluded by Board order, should accordingly be stricken.
It is:
(a)
Page 22, the last (Paolillo) paragraph; (b)
Page 23, the first (Both) paragraph; (c)
Page 24, the second (Paolillo) and third (Both) paragraph;2 (d)
Pages 26-27, the long carry-over (Both) paragraph; 1
Applicants presume that "the bus companies" are, as in the preceding sentence of the order, the " relevant bus companies", i.e. the eight disclosed by Mass AG on October 7, 1988.
2 The third paragraph is objectionable for another reason as well; see infra (2) (1). _ _ - _ _ _ _ _.
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(e)
Page 27, the first full paragraph on the page.3 (2)
Opinion Testimony as to " Reasonable Assurance".
Mangan and Paolillo are offered by Mass AG as fact j
witnesses (albeit hearsay ones), as to the number of vehicles and drivers which some of the companies contracting with Applicants have allegedly stated that they would provide.
Repeatedly, however, Mangan and Paolillo go beyond reciting hearsay facts, offering their opinions as to the " reasonable assurance" that might be inferred from those purported facts.
This opinion testimony is objectionable, and should be stricken, for at least three reasons: (1) the two witnesses l
do not purport to be experts, or to be otherwise qualified to express such opinions; (2) the opinions in many cases have little or no support in the facts preceding them;4 and (3) it is the role of the Atomic Safety and Licensing Board, and not of Mass AG's paid functionaries, to conclude what " reasonable assurance" can be drawn from the facts put into evidence.
The opinion testimony which should therefore be excluded is:
(a)
Page 8, first full (Both) paragraph on the page; 3
This paragraph is also objectionable for another i
reason.
See infra (2) (n).
4 For example, the witnesses offer no basis whatsoever for their conclusions, at pages 27 and 28, that one bus company "should not be counted on to provide more than about 10-15 buses" and another "probably no more than 10".
Likewise, the witnesses seem to have pulled out of thin air l
their conclusion on page 36 that "A safer and more reliable number to count on would be 60-70 vehicles" for another company.
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(b).
Page 9, first paragraph;
.(c)
Page 10, fourth paragraph, which begins "There appears to be reasonable assurance";
(d)
Page 11, bottom full paragraph, which begins "B& sed on my conversations";
(e)
Page 13, first paragraph; (f)
Page 15, last paragraph, which begins "In conclusion, we conclude";
(g)
Page 18, second paragraph, which begins " Based on what Mr. Breau told us";
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(h)
Page 19, first full paragraph, which begins " Based
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on this information" (i)
Page 20, first full paragraph on page, which begins
" Based on this information";
(j)
Pages 20-21, section entitled " Summary of Ambulance company Investigation";
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Page 23, last (Both) paragraph; (1)
Page 24, last (Both) paragraph;5 (m)
Page 25, third paragraph, which begins "There is no assurance whatsoever";
(n)
Page 27, first full paragraph, which begins " Based on the information";6 (o)
Page 28, second paragraph; (p)
Page 30, first paragraph; 5
See supra note 2 and accompanying text.
6 See supra note 3 eiyl accompanying text. - - _ _ _ - - -
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Pages 31-32, carry-over paragraph;
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Pages 33-34, carry-over paragraph; i
(s).Pages 35-36, carry-over paragraph, a
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Pages 36-38, section entitled " Summary of Bus Company Investigation";-
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1 (u)
Page 38, second full paragraph on page, which
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4 begins "From this conversation."
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(3)
Double and Triole Hearsav, All of Mangan and Paolillo's testimony is hearsay, and l
thus is of dubious reliability.
In several places, however, the witnesses report statements which their interviewees purportedly attributed to other unidentified persons.
5 In order to be admissible in NRC proceedings, hearsay testimony must be demonstrably reliable.
Philadelphia 1
Electric Company (Limerick Generating Station, Units 1 and l
2), ALAB-819, 22 NRC 681, 718 (1985).
Usually the reliability of the testimony is tested "through questioning of the witness giving the hearsay."
Id.
The testimony presented by Mass AG, however, is third or fourth hand, and
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thus cannot be so tested for reliability.
'Moreover, the l
ultimate sources of the hearsay statements are not identified, which again renders them unreliable as a matter l
of NRC practice.
See Tennessee Vallev Authority (Hartsville
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Nuclear Plant Units lA, 2A, 1B and 2B), ALAB-367, 5 NRC 92, 121 (1977); cf. Metropolitan Edison Company (Three Mile
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Island Nuclear Station, Unit 1), LBP-82-56, 16 NRC 281, 321 I
(1982) (unreliability of testimony as to rumors).
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l The anonymous double and triple hearsay which should j
therefore be excluded as unreliable is:
(a)
Page 14, the third full sentence on the page, which begins "He said that a representative of Seabrook responded";
(b)
Page 15, the first full sentence on the page, which begins "A representative of Seabrook did tell";
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(c)
Page 15, middle paragraph, the sentence beginning "He believes that his EMTs";7 (d)
Page 17, second and third sentences on the page, beginning at "However, their only concern";8 l
(e)
Page 17, second paragraph on the page, from "but he feels that 90%" to the end of the paragraph.9 (f)
Page 17, third paragraph, third sentence, clause beginning "but he believes";10 7
Here Mass AG descends to the level of imolied double hearsay, since the testimony does not even contain the third-hand statement (if any)-that purportedly is the basis for that (hearsay) belief.
8 Again this is, at best, implied double hearsay.
9 This section is an excellent illustration of why this double and triple hearsay testimony should be rejected.
Mass AG would put into the record these slurs on the ambulance drivers, calling them mercenaries and cowards, on the strength of third-hand, anonymous statements of dubious accuracy and reliability.
10 Again the statement is at best implied double hearsay.
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(g)
Page 23,-middle of long' paragraph, the sentence beginning "He said he was told";
(h)
Page 29, first sentence in bottom paragraph, which l
begins "According to Mr. Sleeper".
(4)
Testimony As to Emercency Worker Rule Abandonment.
After an extensive review of factual and expert testimony introduced by Applicants and Mass AG in the New Hampshire proceedings, this Board concluded that " fear of radiation will not cause trained emergency workers with emergency-role certainty to abandon those roles."
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-88-32, __ NRC __, at 5 7.96 (1988).
Mass AG now attempts to relitigate this issue by presenting hearsay testimony to the effect that trained professional ambulance personnel will fail to respond to a Seabrook emergency.
This testimony, going as it does to an issue no longer within the jurisdiction of this Board, should be excluded.
The objectionable testimony is:
(a)
Page 15, middle paragraph, the sentence beginning l
"He believes that his EMTs";
i (b)
Page 17, second paragraph, the two sentences which begin at "If an actual emergency";
I (c)
Page 17, third paragraph, third sentence, clause beginning "but he believes";
(d)
Page 17, third paragraph, fourth sentence, the parenthetical; I
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(e)
Page 20, first full sentence on page, which begins "However, he could not guarantee."
(5)
Testimony for Which Underlyina Notes Were Not Produced.
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At 1:00 PM en Monday, Apri1E10, Mass AG produced to Applicants the notes taken by witnesses Mangan and Paolillo during some of the interviews which are described in their testimony.
For fourteen (14) of those interviews, however, i
no notes or other records were produced.
With regards to those fourteen phantom interviews there are two possibilities:
(1) notes exist, but Mass AG has failed to produce them, or (2) no notes exist, and the witnesses' testimony is based solely on their memory of a single short i
conversation that in many cases occurred more than a year ago.
In either case, the testimony concerning these phantom l
interviews fails to meet the threshold test of being demonstrably reliable, and should be excluded.
The undocumented portions of the testimony which should be excluded are:
(a)
Page 8, the 1988 Cataldo Ambulance interview; j
(b)
Page 9, both the 1988 and 1989 Dereck's Ambulance l
interviews; I
(c)
Pages 18-19, the General Ambulance interview; i
(d)
Pages 19-20, the B&L Ambulance interview; (e)
Pages 21-22, both the 1988 and 1989 Weagle Bus interviews; _ _ _ _ _ _ _ _ _
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'(f): Pages-22-23, both the 1988 and 1989 Fox Bus x,
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interviews; (g)_ Page 23, the 1988 Dee Bus' interview; b'
L(h)
Page 24,- the 1988 McGregor-Smith Bus interview; e
'Pages 25-26,.the'1988 Hudson Bus interview; (i)
(j)
Page~27, the 1988'Buckingham Bus interview; E
.(k).Page 38, the Federal Auto interview.
CONCLUSION For the rea' sons stated.above, the above-noted portions.
~of Mangen and Paolillo's testimony should be excluded.
1 Respectfully' submitted, y
./ Y Thoias.G. Dignan, Jr.
George H. Lewald Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Geoffrey C.
Cook Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 l.
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CERTIFICATE OF SERVICE J
'89 APR 17 P2 :07 I, Jeffrey P. Trout, one of the attorneys for the Applicants herein, hereby certify that on April 11, 1989, I made service of the within document by depositing copies thereof ;91th Federal f
Express, prepaid, for delivery to (or, where indithted, by i
depositing in the United States mail, first class postage paid, I
addressed to):
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Administrative Judge Ivan W. Smith Administrative Judge Peter B.
l Chairman, Atomic Safety and Bloch, Chairman, Atomic
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Licensing Board Safety and Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 i
Administrative Judge Richard F. Cole Dr. Jerry Harbour Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board East West Towers Building U.S. Nuclear Regulatory 4350 East West Highway Commission Bethesda, MD 20814 East West Towers Building 4350 East West Highway l
Bethesda, MD 20814 l
Administrative Judge Kenneth A.
Administrative Judge Emmeth A.
McCollom Luebke 1107 West Knapp Street 4515 Willard Avenue Stillwater, OK 74075 Chevy Chase, MD 20815 James H. Carpenter, alternate Robert R.
Pierce, Esquire Technical Member Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Adjudicatory File Sherwin E. Turk, Esquire Atomic Safety and Licensing Office of General Counsel Board Panel Docket (2 copies)
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building One White Flint North, 15th Fl.
4350 East West Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852 e
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- Atomic Safety and Licensing Robert A.
Backus, Esquire
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Appeal Board 116 Lowell Street U.S. Nuclear Regulatory P.
O.
Box 516 j
Commission Manchester, NH 03105
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Washington, DC 20555 l
Philip Ahrens, Esquire Mr. J.
P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road i
f General Rye, NH 03870 Augusta, ME 04333 Paul McEachern, Esquire John Traficonte, Esquire Shaines & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney P.O.
Box 360 General Portsmouth,'NH 03801 One Ashburton Place, 19th Fl.
Bocton, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A.
Canney Chairman, Roard of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801
- Senator Gordon J. Humphrey R.
Scott Hill-Whilton, Esquire U.S. Senate Lagoulis, Hill-Whilton &
l Washington, DC 20510 Rotondi (Attn:- Tom Burack) 79 State Street Newburyport, MA 01950
- Senator Gordon J. Humphrey Leonard Kopelman, Esquire One Eagle Square, Suite 507 Kopelman & Paige, P.C.
Concord, NH 03301 77 Franklin Street (Attn:
Herb Boynton)
Boston, MA 02110 Mr. Thomas F.
Powers, III Mr. William S.
Lord Town Manager Board of Selectmen Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Charles P. Graham, Esquire Office of General Counsel Murphy and Graham Federal Emergency Management 33 Low Street Agency Newburyport, MA 01950 500 C Street, S.W.
Washington, DC 20472 q
1 6m_i_____________ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _. _ _
Gary W. Holmes, Esquire Richard'A..Hampe, Esquire Holmes & Ells Hampe and McNicholas 47.Winnacunnet Road 35-Pleasant Street Hampton, NH 03842 Concord, NH 03301 Mr. Richard R. Donovan
' Judith'H. Mizner, Esquire Federal-Emergency Management
- 79. State Street, 2nd Floor Agency _
Newburyport, MA 01950
-Federal Regional Center; 130 228th Street, S.W.
1 Bothell, Washington 98021-9796 i
Ashod N.'Amirian, Esquire Robert Carrigg, Chairman
'I 145' South Main Street Board of Selectmen P.O. Box 38 Town Office, Atlantic Avenue Bradford, MA 01835 North Hampton, NH 03862 l
Diane Curran,._ Esquire John P. Arnold, Esquire Andrea C.'Ferster, Esquire Attorney General Harmon, Curran & Tousley-George Dana Bisbee, Esquire-l Suite 430 Assistant Attorney General 2001'S Street, N.W..
Office of the Attorney General Washington, DC-20009 25 Capitol 1 Street Concord, NH 03301-6397
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r7sa deffrey P. Trout
(*= Ordinary U.S. First Class Mail)
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