ML20244D474

Applicant Objection in Nature of Motion in Limine to Admission in Evidence of Prefiled Testimony of Cj High.* Testimony Either Irrelevant to Issue Before ASLB or Barred by Doctrine of Res Judicata.W/Certificate of Svc

ML20244D474
Person / Time
Site:	Seabrook
Issue date:	06/06/1989
From:	Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#289-8753 OL, NUDOCS 8906190079
Download: ML20244D474 (11)

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i1753 TOCKEii.D nupr June 6, 1989 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION f,['[

before the ATOMIC SAFETY AND LICENSING BOARD  ;

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In the Matter of )

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

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

) .Off-site Emergency (Seabrook Station, Units 1 and 2) ) Planning Issues

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APPLICANTS' OILTECTION IN THE NATURE OF A MOTION IN LIMINE TO THE ADMISSION IN EVIDENCE OF THE PREFILED TESTIMONY OF DR. COLIN J. HIGH Applicants object to and move this Board in the nature ,

of a Motion in Limine to exclude as evidence in this proceeding the " Testimony of Dr. Colin J. High on Be. half of  ;

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Attorney General James M. Shannon for the commonwealth of 1

Massachusetts, Concerning Contention JI-56 (Monitoring Rate)" -l

[ hereinafter " Testimony"). In support of their motion,  ;

Applicants say that all of the Testimony is either irrelevant .j to the issues presently before the Board or else is barred by the doctrine of rag iudicata.

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, We SUIDEARY OF TESTDIONY The. Testimony' divides"into'two parts. In the first', the witness calcula'tes the' number of persons.who should be planned to appear at Applicants' reception centers, for radiological 1' monitoring, in twelve hours. .The methodology used by the witness to arrive at his calculation is~the same as that used by Applicants, 1 3., the' formula contained in-this Board's New Hamphshire Parcial Initial Decision.l*

1 Testimony at 4. . Likewise, in most respects thefwitness-factors the same data into his calculations as Applicants have into theirs. . Testimony'at 3-5. In two instances, however, the Testimony uses data which is substantially different. First, the witness uses the " peak of the' peaks" beach vehicle 2 count as his basis for calculating the non-resident population to be input into the calculation.

Testimony at 4. Second, the witness uses the Luloff population projections as his-input for permanent resident population. Testimony at 3.

The second part of the Testimony (pages 5-6, Question l I

and Answer 7) questions the 2.4 person / vehicle beach vehicle l occupancy rate used by Applicants in the New Hampshire l proceedings and here. Postulating a vehicle occupancy rate of 3.0 persons, the witness recalculates the reception center l 1 Public Service connany of New Mm=nshire (Seabrook Station, Units 1 and 2), 28 NRC 667, 703 (1988).  !

2 Id. at 801.

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e monitoring load. Finally, the witness questions (but cites no evidence contrary to) the TEMA 20% assumption that underlies both his and the Applicants' calculations.

ARGUMENT Both parts of the Testimony should be excluded. The first part is irrelevant, since it used two improper inputs:

(1) the " peak of the peak" vehicle count, which as a matter of law is an inappropriate planning basis; and (2) the Luloff population projections, which already have been litigated and rejected. The second part should likewise be excluded because both the issues it attempts to raise are, Igg iudicata.

A. Hich's First Calculation is Irrelevant.

The witness bases his calculation on two critically flawed inputs: a substantially overstated beach vehicle count, and a procedurally incorrect (and again overstated) permanent resident population. These two incorrect inputs are the only material differences between the witness's calculations of monitoring load and Applicants'. Since the Board can determine the impropriety of th'se e two inputs as a matter of law, it can be established that the Testimony does not reflect the actual situation which is presently being i litigated. The witness's calculation -- and the Testimony -- I is therefore irrelevant.

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Turning to the first flawed input, it should be observed  ;

that the number of vehicles present on Seabrook-area beaches was litigated at great length during the New Hampshire phase of those' proceedings. Seabrook,.28 NRC at 795-803.

Applicants argued that the peak vehicle count was 29,293.

. 1 Id. at 797.- 'The Staff found 30,793 beach vehicles.

Id. at 1 798. The Interveners-claimed that the correct number was 38,825. d Id. at 799.

The Board was. persuaded by the analysis of the Staff's

.1 witness, Dr. Urbanik, and found "that.31,000 is an appropriate number for reasonably expectable peak occupancy."

Id..at 802. The Board also observed that "[s]ince neither Applicants nor Interveners have ever observed more than i approximately 27,000 vehicles, a 35,000 number appears quite conservative [iza. over-inclusive) as an. expectable maximum peak occupancy." Id . - To be sure, the Board also postulated 35,000 to 36,000 vehicles as "the ' peak of the peaks'." Id.

The Board observed, however, that this " peak of the peaks" was "an elusive and fleeting moment", and that information concerning it "is not valuable to the protective-action decisionmaker." Id. at 799.

In spite of the Board's skepticism about a beach vehicle count of 35,000 or higher, and despite the clear ruling that 31,000 is the " reasonably expectable peak occupancy", the '

witness uses 35,500 beach vehicles.for his transient-population input. This use of the chimerical " peak of the

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peaks" as a planning basis for radiological monitoring capacity is inappropriate, as a matter of law. The planning i

basis for emergency response should be based upon realistic conditions -- here, the " reasonably expectable" peak, as 4 f

found by the Board -- not on hypothetical situations which would at best be ephemeral and which at worst have already l

been rejected by the Board. Egg, u . Lona Island Liahtina j Comnany (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 NRC 644, 712, aff'd, ALAB-818, 22 NRC 651 (1985), rev'd on other arounds, CLI-86-13, 24 NRC 22 (1986) (worker l 1

notification plan should have a " realistic design basis", i rather than design for " worst-case" scenario).

1 This Board has already found Applicants' monitoring I capacity to be adequate when it was based upon the

" reasonable expectable" peak, as opposed to the " peak of the peaks", beach population, Seabrook, 28 NRC at 712, 716, 724. j That ruling would seem to bar, as Igg iudicata, the witness's 1

attempt to inject the " peak of the peaks." In any event, the decision was correct, and need not be relitigated here.

The second incorrect input used by the witness is the permanent resident population estimate derived from the testimony of Dr. Albert Luloff. That estimate in turn stems from a methodology which already has been considered and rejected by this Board. Egg Applicants' objection in the Nature of a Motion in Limine to the Admission in Evidence of the Prefiled Testimony of Dr. Albert E. Luloff (June 5, i

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L 1989). Use of these Luloff population' figures is barred by the doctrine of rag iudicata. For this reason too, l therefore, the Testimony is rendered irrelevant by its improper inputs.

B. Answer 7 is Barred by Res Judicata.

Even if the rest of the Testimony were relevant and admissible, Question and Answer 7 should be excluded as already litigated. In that answer, the witness claims that the beach vehicle occupancy rate should be at least 3.0 persons / vehicle, rather than 2.4. The witness also briefly l

l attacks the 20 percent assumption used by FEMA as guidance for expected monitoring load. Both of these issues were decided in New Hampshire, and their relitigation now is barred by ran iudicata.

Applicants explained in detail, in'their ETE testimony presented in New Hampshire, the basis for the 2.4 l

person / vehicle number. Egg Applicants' Direct Testimony No. i 7 (Evacuation Time Estimate and Human Behavior in Emergencies), ff. Tr. 5621 at 16-17. The Interveners q presented a panel -- including this'same witness -- who i i

1 directly challenged the 2.4 number, claiming that 2,854 d persons / vehicle was more accurate.3 Egg Testimony of Colin J.

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3 The Interveners also included the 2.4 number in their  ;

cross-examine plan for Applicants' panel, although it is not l

clear that -- despite seven days of cross-examination, by I five different Intervenor lawyers -- the questions were ever asked. Egg Attorney General James M. Shannon's Cross Examination Plan For the ETE Portion of Applicants Direct i Testimony No. 7, ff. 6303 at'12. ~

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High, Thomas J. Adler.and William A.-Befort-on Behalf of the' Attorney General for the-Commonwealth of Massachusetts on SAPL Contention'No. 31', SAPL Contention--No. 34 and Town of Hampton Revised Contention III, ff. Tr. 6849 at 5 n.1; In accepting Applicants' monitoring capacity calculations, as well as ApplicantsETE analysis,-this Board .;

i necessarily (albeit implicitly) accepted the 2.4 persons / vehicle number and rejected'Intervanor's claim of

'2.854 persons / vehicle. Seabrook, 28 NRC-at 724, 803.- The I Interveners may not now bring th's'same' witness back to make the same4 argument'again.

Likewise, this. Board clearly' ruled in the New Hampshire .

1 p proceedings that "the-incorporation of. FEMA's general-guidance requiring emergency plans to preplan for at-least 20% of.the total EPZ population.. . . is reasonable for the i Seabrook EPZ." Seabrook, 28 NRC at 724. The witness's EIS s forma challenge to tha 20% assumption is thus barred by Igg iudicata, and it too should be excluded.

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4 It is interesting to note that the witness applied a '

2.854 numbar 'in New Hampshire, but now seeks' to t use 3.0 or ~ .

higher. Egg Testimony at 6. 2 i

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CONCIBSION For the reasons stated above, the testimony should be excluded.

By.their attorneys,

, E.ah

'Thodas G.-Dignan, Jr.

George H. Lewald Kathryn A. Selleck 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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l 1 t or. g UwFC CERTIFICATE OF SERVICE '89 JUN 12 P3 :33  !

I, Jeffrey P. Trout, one of the attorneys-for.the .

Applicants herein,- hereby certify that:on June 6,1989h, y ;V %$"i 'l made. service of the within document by mailing copies p.ngJ '

thereof, postage prepaid, to:

Administrative Judge'Ivan W. Smith, John P. Arnold, Esquire a Chairman _

Attorney General Atomic' Safety and Licensing George Dana Bisbee, Esquire Board. Assistant Attorney General  ;

U.S. Nuclear' Regulatory Office of the Attorney General (

Commission 25 Capitol Street Washington, DC 20555 Concord,.NH 03301-6397; {<

Administrative Judge Richard F. Mr. Richard R. Donovan Cole Federal Emergency Management- .,

Atomic Safety and Licensing ' Agency. l Board Federal Regional Center j U.S. Nuclear Regulatory 130 228th Street, S.W.

Commission Bothell, Washington .98021-9796 Washington, DC 20555 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 Harmon, Curran & Tousley Board Suite 430 U.S. Nuclear Regulatory 2001 S Street, N.W. Commission Washington, DC 20009 Washington, DC 20555 i 1

Adjudicatory = File. Sherwin E. Turk, Esquire  !

Atomic Safety and Licensing Office of the Executive Legal 1 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 l 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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Philip Ahrens, Esquire Mr. J. P. Nadeau ,

Assistant Attorney General _ Selectmen's Office  !

Department of the Attorney 10 Central Road i 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 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 Gary W. Holmes, Esquire Richard A.'Hampe, Esquire l Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03842 Concord, NH- 03301

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Ashod N. Amirian,; Esquire.

. 145 South Main Street P.O. Box 38 Bradford, MA. 01835

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W d Jeffrey P. Trout.

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