ML20245E087

Applicant Objection in Nature of Motion in Limine to Portions of Prefiled Testimony of K Barnicle on Special Populations.* Listed Portions of Testimony Should Be Excluded.W/Certificate of Svc

ML20245E087
Person / Time
Site:	Seabrook
Issue date:	04/19/1989
From:	Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
CON-#289-8507 OL, NUDOCS 8905020013
Download: ML20245E087 (12)

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- DOCKETED i' April 19, 19 89' hic l

p UNITED STATES OF AMERICA '89 APR 24 P3 :38-NUCLEAR REGULATORY COMMISSION rrr1 before the l' ATOMIC SAFETY AND LICENSING BOARD L.

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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' OBJECTION IN THE NATURE OF A MOTION IN LIMINE TO PORTIONS OF THE PREFILED TES t'IMONY OF KATHRYN BARNICLE ON SPECIAL POPULATIONS Applicants object to and move this Board in the nature of a Motion ID Linine to exclude as evidence in this proceeding portions.of the " Commonwealth of Massachusetts Testimony of Kathryn Barnicle on Statements Obtained from School and Special Facilities in the Massachusetts EFZ, Hest and [ sic] Hospitals and the Shriner's Auditorium." In support of their motion, Applicants say that the sections of testimony in question are either not material or relevant to l

any issue presently before this Board (Sections 1 and 2, j infra), or are inadmissible as a matter of law (Sections 3 and 4, infra).

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1. • " #" 8905020013 890419 PDR ADFCK 05000443 T PDR 303

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

(1) Testimony Concernina Withdrawn Contentions.

The Joint Intervenor contentions in this proceeding originally included four contentions which took issue with Applicants' procedures ~for distributing potassium iodide (KI) to special populations: JI 46 Basis G, JI 47 Basis B, JI 49 Basis E.2 (in part), and JI 50 N (in part). In the course of settlement negotiations, however, Applicants pointed out that their KI procedure had.been designed to conform with that of the Commonwealth.1 In light of this clarification, and in exchange for the promise that Applicants would conform to any future changes in the statewide KI policy, the Interveners expressly withdrew all their KI contentions. Joint Stipulation Regarding Status of Admitted Contentions at 9 (February 7, 1989) (hereunder " Joint Stipulation").

Despite the withdrawal of these contentions, the witness has included four statements in her testimony criticizing Applicants' (i.e., the Commonwealth's) KI policy. These sections of testimony are irrelevant to any contention still 1 Deference to state KI policy is the normal NRC H practice. Egg, e.a. Louisiana Power and Liaht comoany (Waterford Steam Electric Station, Unit 3), LBP-82-100, 16 NRC 1550, 1567-68 (1982), aff'd, ALAB-732, 17 NRC 1076 (1983), aff'd, CLI-85-3, 21 NRC 471 (1985); see also Union Electric Company (Callaway Plant, Unit 1), LBP-83-71, 18 NRC 1105, aff'd, ALAB-754, 18 NRC 1333 (1983).

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before this Board, and accordingly should be excluded. They are:

1 (a) Page 38, the first full paragraph on the page; (b) Page 41, the first three sentences on the page; ,

t (c) Page 53, the second paragraph on the page; I I

(d) Page 55, the first full paragraph on the page.

Similarly, the testimony at page 59, the second and third l

sentences, raises an issue concerning TDDs, despite the fact

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1 that that issue was settled more than two months ago on the  !

1 terms proposed by the Attorney General. See Joint Stipulation at 8. These two sentences should likewise be ,

excluded.

f (2) Testimony Beyond the Admitted Contentions.

At twenty-four (24) places, the witness offers hearsay testimony concerning issues which are not within the scope of I

the admitted contentions, and which were not disclosed or discussed in any of the Interveners' responses to Applicants' contention-by-contention interrogatories. These new issues, raised for the first time in the witness's testimony, are not i properly before this Board, and should be excluded. The portions of testimony in question are: i (a) Page 10, the last sentence of the last full paragraph on the page (telephones allegedly inoperable if electricity lost);

(b) Page 16, the last full paragraph on the page (legal authority of principals) ;

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.(c) Page 19, the last full paragraph on the page (legal authority for EBS messages);

(d) Page 22, the first sentence on the page (legal authority and school liability);

i (e) Page 22, first sentence of second paragraph on the page (verification of school liaison

" credibility");

(f) Page 26, last full paragraph on the page (same issue);

(g) Page 31, second and fourth sentences of the second paragraph under James Steam Mill (alleged absence of 24-hour telephone coverage);

(h) Page 32, first full paragraph on page (alleged unsuitability of facility as shelter);

(i) Page 34, second and third sentences of last full paragraph on the.page (same issue) ;

(j) Page 36, last two sentences of first full paragraph on the page-(alleged shortage of wheelchairs at j hospital);

-l (k) Page 40, firct sentence of last paragraph on page I (same issue) ;

(1) Pages 41-42, long carry-over paragraph (24-hour telephone coverage issue);

(m) Pages 43-44, except for first sentence, all of the long carry-over paragraph (facility shelter issue);

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'- (n) ,Page 47, first full paragraph on page, (i) second sentence, and-(ii) from portion of third sentence starting at "and if they were to read" to end of paragraph (same issue) ;

I (o) Page 50, from beginning of second full sentence on the-page to the end of the paragraph (persons dying. q.

of dehydration at congregate-care facility);.

1 (p). Page 52, last paragraph'(facility shelter issue);

(q) Page 62, fifth and sixth full sentences on the f page, beginning at "Mr. Connor stated that" (same.

~ issue);

(r) Page 62, bottom paragraph (24-hour telephone coverage issue);

j (s) Page 63, third sentence on page (facility shelter issue) ;

(t) Page 63, third sentence of third paragraph on page (same issue) ;

(u) Page 64,' third sentence of second paragraph on page (same issue);

(v) Page 65, from second full sentence on page to end of paragraph (same issue);

(w) Page 65, last sentence (refusal of residents to ,

leave);

(x) Page 67, third and fourth full sentences on page

(" adverse reaction" to news of emergency).

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1 (3) Double Hearsav Testimony.

All of Burnicle's testimony is hearsay, and thus is of dubious reliability. In several places, however, the witness reports statements which her interviewees purportedly attributed to other, sometimes unidentified, persons.

In order to be admissible in NRC proceedings, hearsay testimony rNx be demonstrably reliable. Ph133delphia Electric Company (Limerick Generating Station, Units 1 and 2 ) , ALAB-8.1.9 22 NRC 681, 7.18 (1985), Usua31y the reliability of the testimony is tested "through questioning of the witness giving the hearsay." Id. The testimony presented by this witness, however, is third hand, and thus cannot be so tested for reliability. Moreover, the ultimate sources of the hearsay statements are not identified, which again renders them unreliable as a matter of NRC practice.

See Tennessee Vallev Authority (Hartsville Nuclear Plan Units 1A, 2A, 1B and 2B) , ALAb-367, 5 NRC 92, 121 (1977); cf.

Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), LBP-82-56, 16 NRC 281, 321 (1982)

(unreliability of testimony as to rumors).

The double hearsay which should therefore be excluded as unreliable is:

(a) Pages 9-10, carry-over sentence with comment attributed to unidentified civil defense expert; i I

(b) Page 28, middle paragraph, fifth sentence, clause l 1

i beginning "but some [ unidentified) teachers had expressed;"

-(c) Page 62, fourth full sentence on page, which begins "He went on to say."

(4) Testimony as to Facts Not Disclosed in Discoverv.

On October 14, 1988, Applicants specifically asked the ,

Interveners to identify all schools within the EPZ which the i

Interveners asserted, in JI 45 Basis L, would be unsuitable '

as shelters, Applicants' Interrogatories and Request for Production of Documents to All Interveners'and Participating Local Governments Concerning Joint Intervenor Contentions 6 l and 27-63, at 44 (October 14, 1988) [ hereinafter

" Interrogatories"]. The Interveners eventually responded by listing four specific schools, plus "all the schools" or "all public schools" in two EPZ communities. Answers and Responses of the Massachusetts Attorney General to the Applicants' Interrogatories and hequest for Production Concerning JI Contentions 6 and 27-63, at 69 (December 19, 1988) [ hereinafter " Responses"). That list, by its very l

terms, set the limits of the contention being made by the Interveners.

In her testimony, however, the witness at five places discusses alleged shelter inadequacies at schools not j disclosed in Interveners' discovery responses. Having failed )

to include these schools in their discovery responses, or j even to have supplemented their responses later in a timely I

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fashion, the Interveners cannot now expand their contentions to encompass these new purported facts.

The sections of testimony containing school-shelter assertions that were not revealed in discovery are:

~(a) Pages 9-10, the carry-over paragraph; (b) Page 13, the second sentence in the bottom paragraph; (c) Page 14, the fourth sentence in the second full paragraph on the page, beginning at "She stated that if she had to shelter";

(d) Page 27, from the first full sentence on the page to the end of the paragraph; i

(e) Page 30, the last two sentences on the page. l Similarly, Applicants specifically asked:

"Do Interveners assert that the Amesbury and Anna Jaques hospitals are not ' suitable as shelter in a radiological emergency'? If so, please explain in detail why they assertedly are not ' suitable', and state all the facts underlying your answer."

Interrogatories at 49. Interveners responded by denying that they alleged the hospitals to be unsuitable:

" RESPONSE: The assertion that was made under Basis D of JI Contention 46 was that the plan does not provide reasonable assurance that Amesbury and Anna Jaques hospitals are suitable as shelters in a radiological emergency. That Basis did not address the issue as to whether the hospitals could shelter some Dortion of their natient Doculation."

l Responses at 78 (emphasis added).  ;

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• Having' defined the scope of their own contention in this !

discovery response, Interveners cannot now be heard to exceed it, Thus the witness's discussion'of sheltering at Amesbury Hospital, page 40, first paragraph (except.for the first  !

sentence), should be excluded.

CONCLUSION For the reasons stated above, the above-noted portions of Barnicle's testimony should be excluded.

Respectfully submitted, J

J Thomas 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 i 4

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CERTIFICATE OF SERVICE 89 APR 24 P3 :38 I, Jeffrey P. Trout, one of the attorneys for t.he-Applicants herein, hereby certify that on April -19, L19891, l'4 I. '

made service ~of the within document by mailing copies  ;

thereof, postage prepaid, to:

Administrative Judge Ivan W. Smith, Administrative Judge Peter B.

Chairman Bloch, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission 1 Washington, DC 20555 Washington, DC. 20555 Administrative Judge Richard F. Dr. Jerry Harbour Cole Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Administrative Judge Kenneth A. Administrative Judge Emmeth A.

McCollom Luebke 1107 West Knapp Street Atomic Safety and Licensing Stillwater, OK 74075 Board Apartment 1923N 5500 Friendship Boulevard l Chevy Chase, MD 20815 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 l 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 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

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 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 Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03842 Concord, NH 03301

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. )Cc. 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.

Bothell, Washington 98021-9796 Ashod.N. Amirian, Esquire Robert Carrigg, Chairman 145 South Main Street Board of Selectmen r P.O. Box 38 Town Office, Atlantic Avenue Bradford, MA' 01835 North Hampton,'NH 03862 John P.' Arnold, Esquire Attorney General George Dana Bisbee, Esquire Assistant Attorney General Office of the Attorney Gener&1

25. Capitol Street Concord, NH- 03301-6397 Y,

Jef ffey P. Trout

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