ML20245D186
| ML20245D186 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/19/1989 |
| From: | Fierce A MASSACHUSETTS, COMMONWEALTH OF |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20245D183 | List: |
| References | |
| OL, NUDOCS 8906270007 | |
| Download: ML20245D186 (11) | |
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UWrc UNITED STATES OF AMERICA
'89 JWI 21 pg 37_
NUCLEAR REGULATORY COMMISSION 1
Gir;-
'before the 00Chih f "]-
Du l
ATOMIC SAFETY'AND LICENSING BOARD
)
In the Matter of
)
Docket Nos. 50-443-OL
)
50-444-OL PUBLIC SERVICE COMPANY OF
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NEW HAMPSHIRE, et al.
)
(Off-site Emergency
)
Planning Issues)
'Seabrook Station, Units 1 and 2)
)
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June'19, 1989 l{
1 MASSACHUSETTS ATTORNEY GENERAL'S OBJECTION IN THE NATURE OF A MOTION IH: LIMINE TO THE SUPPLEMENT TO APPLICANTS'
)
REBUTTAL TESTIMONY NO. 16-l l
The Massachusetts Attorney General (" Mass AG") hereby moves
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l the Board, in.the nature of a motion in limine, to exclude as '
evidence in this proceeding the " Supplement to Applicants' Rebuttal Testimony No. 16 (Interaction of Commuter Traffic Flow and Evacuation Traffic Flow Within the Seabrook EPZ)" (the
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" Testimony").
For the reasons set forth below in' Paragraph 1, I
the entire Testimony should be excluded.
For-the reasons set.
forth in Paragraph 2, portions of the testimony should be excluded if the entire. Testimony is not excluded.
1.
The Entire Testimony Should Be Excluded.
While it is labeled a Supplement to Applicants' Rebuttal Testimony No. 16, this Testimony is simply an effort by the 1
ADDCK 05000443[
8906270007 890619 PDR T
PDR L_-____-__-_
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Applicants to bolster at the eleventh hour the returning commuters' arguments which the Applicants made-in their filing dated January 25, 1989.1 1
In fact, upon close examination, one finds that this new Testimony, dated June 13, actually incorporates almost' everything that was in the earlier filing (the Affidavit),
1 expands on some of the points made there,.and then adds 1
substantial commentary about some new ETE runs.
Clearly, this June 13 Testimony is not a " Supplement" to Applicants' No. 16 (Evacuation Time Estimates), which did not discuss returning commuters' issues.
Nor has any." supplement" to that Testimony been requested or-allowed.
Instead, it is a l
last minute attempt to re-craft the Applicants'. filing of l
1 January 25, 1989, on th eve of its cross examination, which is scheduled to occur during the week of June 19-23, 1989.
This filing has not been authorized by the Board.
After j
the Board, in its order of May 5, 1989, sought proposals from the parties for resolving the factual dispute raised by the I
previously filed affidavits of Mr. Lieberman and Dr. Adler, the Board heard from the parties as a matter of preliminary business on May 15, 1989.
While the Board leaned on the Applicants to some extent to take the Mass'AG's data (available from Social Data Analysts) and attempt to model returning l
1/
That filing consisted of (1) " Applicants' Memorandum Regarding Interaction of Commuter Traffic Flow and Evacuation Traffic Flow Within the Seabrook EpZ", and (2) an " Affidavit of '
Edward B. Luberman Regarding Interaction of Commuter Traffic Flow and Evacuation Traffic Flow Within the Seabrook EpZ." -
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commuters in a way that might satisfy the Commonwealth, the.
Board's intent with respect to the single remaining issue before it was clear -- the Board expected the previously filed-I Adler and Lieberman affidavits to be received as testimony and l
l that Dr. Adler and Mr. Luberman would then each be cross j
examined.
Tr. 21007, 21011, 21015-21016.
The. Board most j
certainly did not.give the Applicants permission to take their own data, do further ETE runs on the narrow issue before the Board, and then submit further testimony on that issue at the eleventh hour, right before cross examination on the previously.
filed affidavits was scheduled to commence.
This last minute substantive substitution of prefiled j
testimony should not be allowed.
At no other point in these off-site hearings has a party,been able to make more than minor corrections to prefiled testimony.
Substantially supplementing testimony at the eleventh hour has not been permitted, and for good reason.
It prejudices the opposing parties in their 1
ability to prepare for and conduct a meaningful' cross examination.
The Mass. AG received this Testimony on June-13, 1989, and immediately requested copies of the new IDYNEV runs from the Applicants.
We received those runs on June 15 and sent them by Federal Express to our expert, Dr. Adler, that day. oOn June 17 Dr. Adler advised us that the effort required to review whether those runs have been conducted fairly will be' substantial and' would take approximately two weeks to complete if (1) he were
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unobligated with other commitments, and (2) he were provided l
with the new version of the IDYNEV model used to produce these runs.
The largest other commitment facing Dr. Adler is that during the entire week of June 19_23 he needs to bn present in Boston at the hearings before this Board in order to present three (3) pieces of testimony (traffic guide training, ETEs, and returning commuters) and to assist the Mass AG in the cross examination of opposing witnesses.
Even without having other commitments, however, Dr. Adler would still be unable to review these IDYNEV runs because they have been done on a substantially different version of the IDYNEV model than the compiled version provided to him by KLD in 1987.
This new version incorporates the TRAD model, has a variable capacity reduction factor, and uses a new set of links and hodes which Dr. Adler has no means of identifying.
Before he can begin any meaningful review of these new runs, he must be provided with the new version of the IDYNEV model and a new link /hode map.
For all these reasons, Dr. Adler cannot present his findings to the Mass AG, or rebuttal testimony to this Board, before Wednesday, July 5, 1989.
Until such time as Dr. Adler has had a chance to review these IDYNEV runs thoroughly, and has been able to advise the Mass AG, the Mass AG will not be ready or able to conduct a cross examination of the Applicants' new returning commuters' testimony.
Forcing the Mass AG to cross examine that panel now, or in the next few days, will seriously
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prejudice the ability of the Mass AG to conduct a meaningful l
l cross examination.
This substantial upgrading of the Applicants' January 25, 1989, returning commuters' testimony should be excluded from evidence.
It is testimony which could have been filed then and
'I was not, and the day when Applicants' January 25 testimony is 1
to be cross examined is too near to permit this upgraded testimony to pinch hit for it.
Should the Board permit this new Testimony to be filed now, the Mass AG moves that it be scheduled for cross examination no sooner than July 6, 1989.
(This date assumes that the new version of IDYNEV is provided to Dr. Adler's office by no later j
j than June 21, 1989.)
The Mass AG also moves that he be allowed I
to file any necessary rebuttal on or before July 7, 1989.
2.
The Followina Portions Of The Testimor.v Should Be Excluded.
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Eart IV.A (o0. 6-8)
This section describes the difficulty in modeling all i
commuter trips, including trips generated outside the EpZ.
Such a discussion of all commuter trips is not relevant to the one narrow returning commuters' issue, over which the Board has retained jurisdiction, that of commuter trips which originate near the center of the EpZ and pass through certain l
l constraining roadway sections in the same direction as the l
l evacuating beach population.
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part V (portions listed below) (op. 12-26) 1 This section contains numerous, references to or analyses of j
i commuter trips which cross exacuating traffic streams.or flow j
opposite to them.
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i The issue
-f returning commuters whose trips home cInaa the 1
flow of evacuating traffic has not been retained by the Board,.
nor has the issue of commuters traveling aaainst the evacuation flow been retained.
These issues are res judicata.
Comments here about cross flows and counter flows (and their impact on' l
ETEs) generated by commuters wh'o live only in the EpZ should be-1 excluded.
~(Such impacts can be fully. assessed only by looking l
at all commuters, including those who work outside the EpZ.)
J These comments are~found at the following locations-I the last lines on p.
12, and. the first two. lines cui p.
]
13 1
I the sentence beginning on line 10 of p.
16 and the following sentence 1
the entire paragraph beginning on the bottom of p.
16 and carrying over to p.
17 the sentence which begins on line 13 of p.
17 the paragraph (one sentence) which begins on line.16 of p. 17 the first three full paragraphs on p.
18 the sentence beginning on line 14 of p.
19 i
the paragraph which begins on p. 24 and ends at the top of p. 25 the first full paragraph on p. 25 the last paragraph on p. 25 i
a
J the summary table on p.
26, which purports to show the combined impedance from cross flow and "same direction" flow.
Part VI (oo. 26-28)
This section describes the impacts of evacue mobilization times on ETEs, another issue over which the Board has not retained jurisdiction.
It should be excluded in its entirety.
Part VII (oo. 28-36)
This section describes a sensitivity study which looks at the combined impacts of cross flow as well as "same direction" flow on the ETEs for the summer beach population.
As noted above, the Board has not retained jurisdiction of the cross flow issue; yet this sensitivity study argues that the combined impacts of cross flows and "same direction" flows are of no consequence.
It should be excluded in its entirety because it is unable to focus on the one issue over which the Board has retained jurisdiction, and it thoroughly re-opens the whole cross-flow issue.
Part VIII (n. 37-39)
This section comments on a separate data base acquired from Dr. Adler.
This data base was provided to the Applicants for l
their use in doing ETE runs for the Commonwealth's own use.
Those runs were to have examined the impacts of all returning j
commuters on ETEs; so the table has a much wider focus than the one issue retained by the Board.
This analysis of the l
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so-called MAG data base is irrelevant to'the resolution of that-one issue, and it.should be excluded.
' Respectfully submitted,.
JAMES M.
SHANNON, ATTORNEY-GENERAL FOR THE COMMONWEALTH OF MASSACHUSETTS dL R. %
By:
Allan R. Fierce Assistant Attorney General' Nuclear. Safety Unit' Department of the Attorney General One Ashburton Place Boston, Massachusetts 02108 (617) 727-2200 Dated:
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UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD.
Orn",
Before the Administrative Judges:
Occi(7 am i -liidi;
.i.
ERM Vi Ivan W.
Smith, Chairman Gustave A..Linenberger, Jr.
Dr. Jerry Harbour l
t
)
In the Matter of
)
Docket Nos. 50-443-OL
)
50-444-OL 3
l PUBLIC SERVICE COMPANY
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(Off-Site-EP)
OF NEW HAMPSHIRE, EI AL.
)
)
(Seabrook Station, Units 1 and'2)
)
June-19,.1989
)
CERTIFICATE OF SERVICE
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I, Allan Fierce, hereby certify that on June 19, 1989, I'made
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service of the MASSACHUSETTS ATTORNEY GENERAL'S OBJECTION IN THE l
NATURE OF A MOTION IN LIMINE TO PORTIONS OF THE PREFICED TESTIMONY OF THOMAS URBANIK II ON JOINT INVERVENOR CONTENTIONS 4 AND 7A, TES'JIMONY OF DR. THOMAS J. ADLER ON BEHALF OF JAMES M. SHANNON, i
ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSE77&, CONCERNING l
CONTENTION JI-56, RECEPTION CENTER PARKING, and MASSACHUSETTS ATTORNEY GENERAL'S OBJECTION IN THE NATURE OF.A MOTION IN LIMINE l
THE SUPPLEMENT TO APPLICEt?TS' REBUTTAL TESTIMONY NO.
16 via Federal
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u Express Mail as indicated by [*],
hand delivered as indicated by
[**]
and by First Class Mail on June 19, 1989 to:
- Ivan W.
Smith, Chairman
- Kenneth A. McCollom
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Atomic Safety & Licensing Board 1107 W. Knapp St.
l U.S.
Nuclear Regulatory Stillwater, OK 74075 Commission l
East West Towers Building
- Docketing and Service 4350 East West Highway U.S.
Nuclear Regulatory Bethesda, MD 20814 Commission Washington, DC 20555
- Dr. Richard F.
Cole Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814
- Robert R.
Pierce, Esq.
- Thomas G. Dignan, Jr., Esq.
Atomic Safety & Licensing Board Katherine Selleck, Esq, U.S. Nuclear Regulatory Commission Ropes & Gray East West Towers Building One International Place 4350 East West Highway Boston, MA 02110 Bethesda, MD 20814
- H.
Joseph Flynn, Esq.
- Sherwin E. Turk, Esq.
i Assistant General Counsel U.S.
Nuclear Regulatory j
Office of General Counsel Commission
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Federal Emergency Management Office of the General. Counsel Agency 15th Floor 500 C Street, S.W.
11555 Rockville Pike Washington, DC 20472 Rockville, MD 20852 Atomic Safety & Licensing Robert A.
Backus, Esq.
Appeal Board Backus, Meyer & Solomon 7
U.S. Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03106 Atomic Safety & Licensing Board Jane Doughty U.S. Nuclear Regulatory Commission Seacoast Anti-Pollution League
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Washington, DC 20555 5 Market Street Portsmouth, NH 03801 l
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Charles P.
Graham, Esq.
Barbara St. Andre, Esq.
Murphy & Graham Kopelman & Paige, P.C.
33 Low Street 77 Franklin Street Newburyport, MA 01950 Boston, MA 02110 Judith H. Mizner, Esq.
R.
Scott Hill-Whilton, Esq.
79 State Street Lagoulis, Hill-Whilton 2nd Floor
& Rotondi Newburyport, MA 01950 79 State Street Newburyport, MA 01950 Dianne Curran, Esq.
Ashod N. Amirian, Esq.
Harmon, Curran, & Towsley 145 South Main Street Suite 430 P.O.
Box 38 2001 S Street, N.W.
Bradford, MA 01835 Washington, DC 20008 Senator Gordon J.
Humphrey Senator Gordon J. Humphrey U.S. Senate One Eagle Square, Suite 507 Washington, DC 20510 Concord, NH 03301 (Attn: Tom Burack)
(Attn: Herb Boynton)
John P.
Arnold, Attorney General Phillip Ahrens, Esq.
Office of the Attorney General Assistant Attorney General 25 Capitol Street Department of the Attorney Concord, NH 03301 General Augusta, ME 04333 William S. Lord Board of Selectmen Richard Donovan Town Hall - Friend Street FEMA Region 10 Amesbury, MA 01913 130 228th Street, S.W.
Federal Regional Center Bothell, WA 98021-9796 COMMONWEALTH OF MASSACHUSETTS JAMES M.
SHANNON ATTORNEY GENERAL WM C<-
Allan R. Fierce
/AD AssistantAttorneyGenera)l Nuclear Safety Unit l
Department of the Attorney General l
One Ashburton Place Boston, MA 02108-1698 i
i (617) 727-2200 l
DATED:
June /q, 1989
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