ML20244D379

Applicant Objections in Nature of Motion in Limine to Portions of Prefiled Testimony of Captain D Breton & Jv Gelder on Behalf of Seacoast Anti-Pollution League (Sapl) Re Sapl Contention EX-12....* W/Certificate of Svc

ML20244D379
Person / Time
Site:	Seabrook
Issue date:	06/08/1989
From:	Cook G PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#289-8751 OL, NUDOCS 8906190022
Download: ML20244D379 (10)

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DOCKETED- l U5hi?C 1 June -' 8, 1989.

'89 'JLN 12 PS :19-UNITED STATES OF AMERICA

grql NUCLEAR REGULATORY COMMISSION #" ' W before the ATOMIC SAFETY AND LICENSING BOARD .t

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)- i In the Matter of ~) -

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL  !

NEW HAMPSHIRE, et al. ) 50-444-OL

) i (Seabrook Station, Units 1 and 2) ) -(Off-site Emergency I

) Planning Issues)

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APPLICANTS' OBJECTION IN THE NATURE OF'A MOTION IH LIMINE.TO PORTIONS OF THE PREFILED TESTIMONY OF CAPTAIN DANIEL BRETON AND JOHN VAN GELDER, }

l FIREFIGHTERS FOR THE TOWN OF SALEM, NEW-HAMPSHIRE- l'

!~ ON' BEHALF OF THE SEACOAST ANTI-POLLUTION LEAGUE,

, . REGARDING'SAPL CONTENTION EX (RECEPTION / DECONTAMINATION CENTERS)

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Applicants object to and move this Board in the nature I of a motion in limine to exclude as evidence in this proceeding portions of the " Testimony of Captain Daniel ~ j l

Breton and John Van Gelder, Firefighters for the Town of I Salem, New Hampshire on Behalf of the Seacoast Anti-Pollution 1 League, Regarding SAPL Contention Ex-12 (Reception /

Decontamination Centers)" [ hereinafter "the Testimony"). In support of their motion, Applicants say that the sections of testimony in question are not material or relevant to any issue presently before this Board.

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4: 1 ARGUMENT The following portions of.the witness's' testimony should' be excluded, for the reasons noted:

1) Testimony Beyond the Scope of the Contention.

(a)' 'Trainina.

At four places in the testimony,.the witnesses ~ allege that certain New Hampshire firefighters have not received

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training on how to respond'to a radiological emergency and .,

that-those who have been trained would not be able to recall' -4 and use~successfully the training they have received:1 a) page 4, question 10 and its answer; I b) page 5, question 14 and its answer-

-i c) pages 6-7, question 19'and its' answer; d) page 7, question 20 and its answer.

SAPL Contention EX-12 contains no allegation that reception center personnel, including firefighters, are insufficiently or inadequately trained. Instead, the basis'to SAPL EX-12.

raises issues of timing, administrative efficiency, and general confusion. SAPL'did not raise:the issue of training at any time before the start of hearings. The sections of the Testimony which allege that " training insufficiencies":

were' encountered during.the. FEMA Graded-Exercise are outside-

.the scope of any admitted contention or basis and should therefore be excluded.

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h (b) Humbers and scope.

Two additional portions of the Testimony address issues ]

that are irrelevant to SAPL EX-12 or address matters directly excluded by the Board. In question 12 and its answer, on page 4, the witnesses assert that they do not know how many 5

evacuees they should be prepared to receive. But the issue of how large a number of people might appear at a reception center in an actual radiological emergency is irrelevant to a demonstration during an exercise of the capability to monitor people.1 Furthermore, through question 24 and its answer, on ,

pages 7-8, witness Breton opines on the scope of the exercise as it involved the Salem Reception Center. The Board, when it admitted SAPL Contention EX-12, specifically ruled that j i

"the scope aspect of the contention is rejected." Memorandum and Order (Rulina on June 1988 General Exercise Contentions, J l

at 61-62 (Dec. 15, 1988). Questions 12 and 24,-as well as '

their answers, should be excluded because they introduce i allegations that are beyond the scope of the admitted contentions. I 1

If the Testimony here is designed to question indirectly the FEMA guidance that reception centers must be able to receive 20 percent of the EPZ population, such a challenge, having already been raised, litigated, and decided, II. 5011-22, 5089-5140; Public Service Comoany of New Hampshire (Seabrook Station, Units 1 and 2), LBP-88-32, 28 NRC 667, 711-15 (1988), is foreclosed by issue preclusion.

2) Testimony On Human Behavior That'Is Foreclosed bv Commission Rule and Res Judicata.-

The Testimony in three places questions whether' fire fighting personnel'would respond during a radiological-emergency. Question 8 and its answer, on page 3, suggest-that, because Salem has a Memorandum of Agreement permitting its firefighters'not to participate in any radiological or decontamination operations after June- 28,-1988, no Salem on-duty or off-duty firefighters would respond during an actual emergency at Seabrook Station. In question 13 and its answer, on page 4, the witnesses first_ repeat this assertion while simultaneously'saying that any. response would be limited to on-duty firefighters. Then, they offer the hearsay testimony that "some" firefighters'have-told them that they would "go home" even if'they were'on duty.

Finally, in question 25 and its answer, on page 8,: witness Breton states that he would respond onlyEif he were on duty q during an emergency and witness Van Gelder states that he  :

would leave his post even if he were on duty.

The Nuclear Regulatory Commission, however, has directed licensing boards to reject any claim by local officials that they would refuse to act.in the event of an actual <

radiological emergency. Notice of Final Rule. Evaluation of the Adecuacv of Off-Site Emeraency Plannina for Nuclear Power Plants at the Operatina License Review Staae Where State and/or Local Governments Decline to Participate'in Off-Site Emeroency Plannino, 52 Fed. Reg. 42,078 (Nov. 3, 1987). Sgg

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also Lona Island Lichtina Co..(Shoreham Nuclear: Power-Station, Unit 1) , CLI-86-13,- 24 NRC 22,129 n.9 (1986); id.,

CLI-86-14, 24 NRC 36, 40 n.1.(1986).: ' Fire department-officersLand the fire; fighters they supervise are clearly-local officials.. Thus, the portions of the Testimonyj described above,'in which the witnesses limit or forswear their responsibility'for the'preservationfof life in a.

radiological emergency,'should be excluded.

In addition, the sections-of the Testimony described above are foreclosed by I2g iudicata because the issue of human behavior during emergencies was litigated-and decided in the New Hampshire phase oc the Seabrook hearings.

In NRC practice, as in the federal courts, rgg iudicata will usually2 bar the litigation of an issue if four criteria i

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are met: (1) the parties are the same or'in privity; (2)-

the issue is the same; (3) the issue'was in Cact litigated

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and ruled upon; and (4) that ruling was material and relevant j to the dispostion of.the earlier action. Carolina Power and 4 Licht concany (Shearon Harris Nuclear Power. Plant), ALAB-837, 23 NRC 525, 536-37 (1986); Houston Lichtina and Power Comoany (South Texas Project, Units 1 and 2), LBP-79-27, 10 NRC 563, 1

l 2 The NRC, like all federal tribunals,.will' apply the  ;

doctrine of rjui iudicata "with a sensitive regard for any ,i suonorted assertion of. changed circumstances or'the possible existence of some speqial'public interest factor in the ,

particular case." Alabama Power Co. (Joseph M. Farley Nuclear Plant,' Units 1 and 2),.ALAB-182, 7 AEC 210, 216, l remanded on other nroundri, CLI-74-12, 7 AEC 203 (1974) (emphasis added) .

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566 (1979), aff'd, ALAB-575, 11 NRC 14 (1980). A party may not revive an issue simply by advancing a new argument concerning it which that party just as readily could have raised in the prior litigation. Egg Shearon Harris, 23 NRC at 537 n.37.

Each of the four res iudicata factors applies to the Testimony. SAPL was a party to the New Hampshire hearings, and it shares the other Interveners' interest in preventing the plant from being licensed. The issue -- whether local officials or community leaders would refuse to act in the event of an actual radiological emergency -- is the same.

The issue was litigated and decided in New Hampshire. Tr.

3945 and ff.; Seabrook, 28 NRC at 728-29. And the Board's rejection of any claim by local officials that they would refuse to act in the event of a radiological emergency certainly was material and relevant to the Board's overall finding that a " therapeutic community" can be expected to emerge in the Seabrook EPZ during an emergency. Seabrook, 28 NRC at 746. The doctrine of rgs iudicata thus applies to bar the questions and answers numbered 8, 13, and 25 from admission into evidence.

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CONCLUSION For the reasons stated"above, the' portions of'the-Testimony described should be excluded.- ]

'l By.their' attorneys, l

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, fVy Thomas G'.aDiggan, Jr.. u-George'H. Lewald-

.Kathryn A. Selleck. -3 Jeffrey-P.: Trout Jay.Bradford. Smith-Geoffrey:C. Cook-William L. Parker.

Ropes & Gray-One International Place Boston,.MA 02110-2624-(617) 951-7000 i

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i CERTIFICATE OF' SERVICE .E9 JN 12 P5 :19 l

I, Geoffrey C. Cook, one of the attorneys for-the 989 Applicants made serviceherein,.hereby of the within.certify that on June document.by mailing85]Sdhied [L(gaI Q l thereof, postage prepaid, to:

Administrative Judge Ivan W. Smith,. ' John P. Arnold, Esquire Chairman Attorney General  ;

. Atomic Safety and Licensing ' George Dana Bisbee,. Esquire ]

Board Assistant Attorney General i U.S. Nuclear Regulatory Office of the Attorney General Commission .25 Capitol. Street Washington, DC 120555 Concord, NH' 03301-6397-Administrative Judge Richard F. Mr. Richard R. Donovan Cole Federal Emergency Management Atomic Safety and. Licensing Agency- I Board Federal Regional Center '

U.S. Nuclear Regulatory 130 228th Street, S.W.

Commission Bothell, Washington 98021-9796 Washington, DC 20555 1 Administrative Judge Kenneth A. Judith H. Mizner, Esquire McCollom 79 State Street, 2nd Floor 1107 West Knapp Street Newburyport, MA- 01950 Stillwater, OK 74075 ,

Diane Curran, Esquire Robert R. Pierce, Esquire Andrea C. Ferster, Esquire Atomic Safety and Licensing i Harmon, Curran & Tousley . Board Suite 430 U.S. Nuclear Regulatory  ;

2001 S Street, N.W. Commission Washington, DC 20009 Washington, DC .

20555 Adjudicatory File Sherwin E. Turk, Esquire Atomic Safety and Licensing Office of the Executive Legal Board Panel Docket (2 copies) . Director l U.S. Nuclear Regulatory U.S.-Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03105 '

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6 Philip'Ahrens,. Esquire Mr. J. .P.

Nadeau-Assistant Attorney General Selectmen's Office Department of-the Attorney 10 Central Road 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 Flr.

Boston, MA 02108 Mrs. Sandra Gavutis. 'Mr. Calvin A. Canney Chairman, Board of Selectmen. City Manager RFD 1 - Box 1154 City Hall Kensington, NH 03827 126-Daniel Street Portsmouth, NH 03801 Senator Gordon J. Humphrey R. Scott Hill-Whilton,' Esquire U.S. Senate .Lagoulis, Hill-Whilton &

Washington, DC 20510 Rotondi (Attn: Tom Burack) 79 State Street Newburyport, MA 01950 ,

1 Senator Gordon J. Humphrey Leonard Kopelman, Esquire i 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 Managnment 33 Low Street' Agency Newburyport, MA 01950 500 C Street, S.W.

Washington, DC 20472 l i

Gary W. Holmes, Esquire Richard A. Hampe, Esquire 'l Holmes & Ells Hampe and McNicholas -l 47 Winnacunnet Road 35 Pleasant. Street ,

Hampton, NH 03842 concord, NH 03301 j 1

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Ashod N. Amirian, Esquire 145 South Main Street '

P.O. Box 38 Bradford, MA 01835 Y 4/ $_

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