ML20245J222
| ML20245J222 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/24/1989 |
| From: | Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#289-8527 OL, NUDOCS 8905040051 | |
| Download: ML20245J222 (12) | |
Text
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POLKE*ED Aprih 249 1989 UNITED STATES OF AMERICA
'89 PPR 27 P4 :12 NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
).
)
PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
)
50-444-OL
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Off-site Emergency (Seabrook Station, Units 1 and 2)
)
Planning Issues
)
)
APPLICANTS' OBJECTION IN THE NATURE OF A MOTION JN LIMINE TO THE ADMISSION IN EVIDENCE OF THE PREFILED TESTIMONY OF DR. DON A. DILIMAN AND SHARON MORIEARTY Applicants object to and move this Board in the nature of a Motion 1D Limine to exclude as evidence in this proceeding the " Testimony of Dr. Don A.
Dillman and Sharon Moriearty on. Behalf of the Attorney General of the Commonwealth of Massachusetts Regarding JI Contention 48"
[ hereinafter " Testimony").
In support of their motion, Applicants say that the Testimony is not material or relevant to any issue presently before this Board.
SUMMARY
OF TESTIMONY The Testimony criticizes, on specific methodological grounds, the manner in which the special needs survey relied JPTDMOBJ.h"d r# iB8M 8?88lha p3 T
upon by Applicants was conducted and verified.
Specifically, the Testimony asserts that "noncoverage error" may exist because of the address lists used to mail out the survey; that " measurement error" may have arisen from vague wording and open-ended questions; and that the response rate was too low due to vagueness, confusion, and impersonalization in the cover letter used, plus general confidentiality concerns.
Then the Testimony criticizes the verification procedure as being eliminative, insufficiently structured, and vague.
Finally, the Testimony projects, primarily from census data, the number of special needs individuals whom the witnesses assert should have been found in Applicants' survey.
ARGUMENT Neither in his contentions nor in his interrogatory answers did the Attorney General for the Commonwealth of Massachusetts [" Mass AG"] Indicate that he was alleging any methodological flaws in Applicants' survey.
The Testimony is thus outside the scope of the contention, as that contention has been stated and further defined and delineated by Mass AG's bases and discovery responses.
Accordingly, the Testimony is irrelevant to the issues put into litigation by i
I the Interveners, and should be excluded.
It is axiomatic that the scope of a contention is I
limited by the stated terms of the contention and its bases.
~
j E.Q.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-899, 28 NRC 93, 97 (1988).
The _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _
]
i l
law is clear that "one purpose of the requirement in 10 i
C.F.R. 2. 714 (b) that the bases of a contention be set forth
)
with reasonable specificity is to put the other parties on j
notice as to what issues they will have to defend against or oppose."
Id.
Given the vague, broad-ranging language of many of the contentions in this proceeding', the existence of specific bases setting the scope of the contentions has been especially important to put Applicants' (and the other parties) on notice as to what alleged flaws in the SPMC were being litigated.
However, Applicants also sought to flesh out the contentions and bases with a comprehensive set of interrogatories, a set which Mass AG characterized (appropriately) as seeking:
disclosure of every fact, document, and potential piece of evidence that the Joint Interveners believe supports their position on each and every contention.
Thus, the Applicants are seeking nothing less than responses that map out the Joint Interveners' case from soup to nuts."
Motion of the Joint Interveners to Extend Time Within Which to Reply to the Applicants' Two sets of Interrogatories and Document Requests Regarding the SPMC Contentions, at 2 (October 27, 1988) (emphasis in original).
Moreover, Mass AG has expressly conceded that his interrogatory responses set the outer limits of his contentions.
Tr. at 18687-88.
Whether one looks to the contention and bases or to the interrogatory responses, however, one looks in vain for any _
i i
hint from Mass AG that Applicants' survey was methodo-logically flawed.
f A.
The Contention - JI 48 I
JI Contention 48 contains Mass AG's allegation that not j
all special needs residents have been identified.
It reads:
"The SPMC is deficient because it has not identified all or even most of the special needs resident population, has not sufficiently assured the security of acquired information about special needs individuals, has not adequately determined the specific assistance needed by identified individuals to cope with a radiological emergency, has not identified other individuals and organiza-tions capable of assisting and the type of assistance required, and has no adequate procedures for assuring that this data is periodically vali-dated.
Thus, the SPMC does not comply with 10 C.F.R. 50.47 (a) (1), 50. 47 (b) (7), 50. 4 7 (b) (10),
- 50. 47 (c) (1), and NUREG-0654, Rev.
1, Supp.
1, Sections II.G and II.J."
The contention statement itself, therefore, does not even mention the survey, let alone suggest any specific methodo-logical flaws in it.
Looking to the bases of JI 48 for some detail to flesh out the general allegation of the contention, one finds that Bases B, C and D deal with the confidentiality of information gathered, the manner of listing information in Appendix M, and identification of outside groups to help with an emergency response.
None of these three bases has anything to do with the methodology of the survey.
Basis A, however, does mention the survey.
Indeed, it alleges that the survey was inadequate, for no less -- and no more -- than two specific reasons.
The Basis reads: _
1 f
l "The plan proposes to conduct periodic special needs surveys by mail.
Plan 3.7.
This method is unreliable for a number of reasons.
All homebound persons in need of special assistance will there-fore not be known to NHY and thus cannot be assisted in sheltering themselves or evacuation in the event of an emergency.
The identification proposal is inadequate in the following respects:
1.
The survey already conducted to identify persons with special needs produced unreliable results because of the wide-spread opposition to Seabrook.
Future surveys will likely produce similarly unreliable results.
a)
Some persons refused to complete forms in protest; b)
Some persons reported that members of their families had special needs when, in fact, they did not; c)
Forms were collected by opposition groups and not sent in.
2.
The deeply-felt and widespread opposition to Seabrook does not engender confidence on the part of special needs persons that the information they might submit will be kept confidential, thereby discouraging submission of such data."
In short, Mass AG alleges that (1) opposition to Seabrook, and (2) suspicion of Seabrook rendered the survey inaccurate.
Nowhere in Basis A are any methodological flaws alleged, such as the Testimony describes.
Nowhere in the Testimony, moreover, is there any mention of the anti-Seabrook issues alleged in the Basis.
The disfunction between the Testimony and the Basis is absolute.
Similarly, the final basis under JI 48, Basis E, makes the same anti-Seabrook attack on the validity of Applicants' verification plan: _ _ _ _ _ _ - _ _ _ _ _
"The proposal provides no reasonable assurance that the information collected will be validated, updated, or maintained, but merely asserts that periodic surveys will be mailed which, for the reasons stated above, is an unreliable method."
(Emphasis added.)
Again the Basis does not refer to any methodological problems, while the Testimony discusses only methodological problems.
On their face, therefore, JI Contention 48 and its bases have nothing to do with the methodological allegations con-tained within the Testimony.
That fact, in and of itself, would determine that the Testimony is 3rrelevant and thus should be excluded.
B.
The Interrogatories The testimony falls outside the language of the contentions and bases.
In this proceeding, however, Mass AG was asked a second time, after the filing of his contentions, to disclose the issues he intended to litigate.
In October Applicants served upon the Interveners a series of interroga-tories in which, as Mass AG put it, Interveners were supposed to " map out (their] case from soup to nuts."
The map returned by Mass AG, however, was devoid of any landmarks pointing to methodological flaws such as are described in the Testimony.
Applicants' interrogatories concerning JI 48 cover pages 52 through 56 of Applicants' Interrogatories and Request for Production of Documents to All Interveners and Participating Local Governments Concerning Joint Intervenor Contentions 6 _ _ _ _ _ _ _ _ _ _ - _ _ _ - _ _ _ _ _ _ _ _.
and 27-63 (October 14, 1988)1 [ hereinafter "Interroga-tories"].
Since Mass AG stated in Basis A that opposition to Seabrook was the cause of any survey flaws, Applicants focused on that issue in the Interrogatories, asking four interrogatories (## 159-163) about such opposition.
- Then, just to be absolutely certain of pinning Mass AG down, Applicants asked a final " clean-up" question:
'*Please state all the facts, other than those discussed in response to the preceding interroga-tories, underlying Interveners' assertion that
" periodic special needs surveys by mail" are
" unreliable for a number of reasons."
Interrogatories at 54.
Mass AG's answer -- which, as noted above, even Mass AG concedes sets the limits of his case -- was breathtaking in its brevity:
" RESPONSE:
Experts in the area of surveys and data gathering have uniformly proclaimed surveys by mail as being among the most unreliable methods of gathering information."
Answers and Responses of the Massachusetts Attorney General to the Applicants' Interrogatories and Request for Production Concerning JI Contentions 6 and 27-63, at 86 (December 19, 1988) [ hereinafter " Responses"].2 As with the contention, there simply is no connection 1
Applicants' Exhibit No. 65.
2 Applicants' E:..ibit No. 66. _ _ _ _ _ _ _ _ _ _ _
1 between this interrogatory response and the Testimony.3 The
~.
Testimony does not allege that mail surveys are generically unreliable.4 Rather, it attacks Applicants' particular survey for a series of specific alleged methodological flaws.
Every one of the alleged facts discussed in the Testimony -- Applicants' reliance on utility and voting lists, the reluctance of special needs people to self-identify, the disproportionate poverty of special needs people, the language and instructions used in Applicants' questionnaires and follow-ups, etc. -- were in existence and known to Mass AG when he filed his Responses on December 19.
Yet not one of those facts is contained in his answer to Applicants' interrogatory.
Mass AG's failure to disclose those facts at that time means either (1) they were never within the scope of.the contention in the first place, or (2) Mass AG deliberately hid the facts he intended to assert.
In either case, the Testimony is built entirely of and on those undisclosed facts.
For that reason, too, it should be excluded.
3 Applicants asked a second " clean-up" question, #170, I
at the end of all the JI 48 interrogatories.
Interrogatories at 56.
Mass AG's response was that all his facts were given in previous answers or in the contention itself.
Responses at 90-91.
~
4 Indeed, one of the witnesses who submitted the testimony makes his living by, inter alia, performing such surveys.
See Testimony at 3 and 5.._.
__________w
f, ;
e.,,
.J CONCLUSION.
^ -
For the reasons stated above,:the Testimony should be excluded.
Respectfully submitted, 1
_ _d hl.beth s9 th'oWas 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
.1
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i
6 M <! a i u L-CERTIFICATE OF SERVICE 5 FR 27 P4 32 I, Jeffrey P. Trout, one of the attorneys for the Applicants herein, hereby certify that on April 247'1989, I.
made service of the within document by mailing copi'es o'
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 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 Board Federal Regional Center 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 i
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 Adjudicatory File Sherwin E. Turk, Esquire Atomic Safety and Licensing Office of the Executive Legal Board Fanel 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 1
I o
O Ashod N. Amirian, Esquire Robert Carrigg, Chairman 145 South Main Street Board of Selectmen P.O.
Box 38 Town Offico, Atlantic Avenue Bradford, MA 01835 North Hainpton, NH 03862 i
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deffr,ey P. Trout
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