ML20247B195
| ML20247B195 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/19/1989 |
| From: | Trout J PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#289-8635 OL, NUDOCS 8905240043 | |
| Download: ML20247B195 (9) | |
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00CKEiEC MafN,1989 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION {
before the ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL-NEW HAMPSHIRE, et al.
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50-444-OL
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Off-site Emergency (Seabrook Station, Units 1 and 2)
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Planning Issues
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APPLICANTS' OIkTECTION IN THE NATURE OF A MOTION I]! LIMINE TO PORTIONS OF THE PREFILED TESTIMONY OF GEARY W. SIKICH AND JOHN PAOLILID REGARDING TOH/NECNP EX-1 A & B Applicants object to and move this Board in the nature of a Motion ID Limine to exclude as evidence in this Sikich and proceeding portions of the " Testimony of Geary W.
John Paolillo on Behalf of Attorney General James M. Shannon, Town of Hampton, New England Coalition on Nuclear Pollution and Seacoast Anti-Pollution League Regarding TOH/NECNP EX 1 (a) and (b)" (hereinafter " Testimony").
In support of their motion, Applicants say that the sections of testimony in question are either not material or relevant to any issue presently before this Board (Section 1 infra) or are inadmissible double hearsay (Section 2 infra).
JPTSPOBJ.NH 8905240043 890519 PDR ADOCK 05000443 yoJ T
PDR 1
e ARGUMENT The following portions of the witnesses' testimony should be excluded, for the reasons noted:
(1)
Testimony as to School Personnel Other Than Teachers.
The testimony is offered in support of TOH/NECNP Contention 1 Bases A and B.
Testimony at 2, 8.
Those two bases assert that "None of the teachers relied upon under the NHRERP to implement protective actions for scnool children participated in the Exercise," and that "Since none of f
the New Hampshire teachers participated in the Exercise, FEMA could not observe any adequate demonstration of the organizational ability or resources necessary to effect an early dismissal, sheltering, or evacuation, of the school children, even though this demonstration was one of the Exercise objectives."1 The two bases. on their face, deal exclusively with teacher participation in the Exercise.
Moreover, TOH/NECNP defined the bases, in the face of Applicants' and Staff's objections to their admission, as alleging that "none of the New Hampshire teachers participated in the exercise (and]
without these teacherg, none of the protective action procedures for school children were reviewed or tested."
Town of Hampton and New England Coalition on Nuclear Pollution Reply to the Responses of the Staff and Applicants 1
The complete texts of Bases A and B are contained in to the Testimony. - _ _ _ _ _ - _ _ - _ _ _ - _ _ _ _ - _ _ - _ - _ _
4 to Interveners [ sic] Contentions on Graded Exercise, at 4 (October 21, 1988) (emphasis added).
The Testimony, however, ranges far beyond the relatively narrow issue of the need for and extent of teacher participation in the Exercise.
Rather, the Interveners use the Testimony as the vehicle for articulating a wholly new contention, to the effect that " principals or directors at each of the [113] public, private, day care or nursery schools, located in the New Hampshire EPZ, should participate in the Exercise."
Testimony at 12.
This new contention, which neither addresses nor meets the five-factor test of 10 C.F.R. 5 2. 714 (a) (1), should be rejected by the Board.
Those portions of the Testimony which stray beyond the admitted subject of teacher participation should likewise be excluded.
The sections of testimony which should thus be excluded as irrelevant are:
(a) in Answer 7, pages 12-13, the first two paragraphs, and the work "also" in the first line of the third paragraph; (b) in Answer 8, pages 13-14, the third, fourth, and fifth paragraphs, plus the words " principals" and "or other school personnel" in the sixth paragraph; (c) all of Question 9 and Answer 10 [ sic], pages 14-18.
(d) in Answer 10, page 18, the last two sentences -
(i) the words "all Superintendents, each principal _ _ _ - _ _
j or director, and" in the second-to-last sentence.
(ii) the words "except Superintendents" in the last j
sentence.
I (e) in Answer 11, page 19, the entire answer except for the first sentence ("No.") and the last three sentences (beginning at "The June 28, 29 1988 Exercise").
In addition, the only substantive references to Attachments 8, 9, and 10 in the Testimony itself are contained in those portions which are objected to above as irrelevant.
Those Attachments, too, should be excluded.
Since witness Paolillo is on the panel for the sole purpose of sponsoring Attachment 9, he can therefore be excused from the panel and his portions of the Testimony (at pages 1, 2,
5, and 15, plus the reference to Paolillo at the top of page 8) can be excluded as irrelevant.
(2)
Double Hearsav Testimony.
All of Attachments 8 and 9 constitute hearsay, and normally would be inadmissible.2 Four of these six documenta, however, constitute hearsay statements by school officials not present during the Exercise, who simply are commenting on what other individuals have purportedly told them.
The double-hearsay accounts are the Katner deposition 2
Mass AG has not shown that any of the criteria for admission of deposition testimony, per FED. R. CIV.
P.
32(a),
are met by the two depositions that constitute Attachment 8. _ _ - _ _ - _ _ _ _
5 (Attachment 8, pp.95-122) and witness Paolillo's accounts of the Clancy, Joyce, and Tucker interviews (Attachment 9, pp.
149-165).
l In order to be admissible in NRC proceedings, hearsay testimony must be demonstrably reliable.
Philadelphia Electric Comoany. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 718 (1985).
Usually the reliability of the testimony la tested "through questioning of the witness giving the hearsay."
Id.
The testimony presented by witness Paolillo, howevar, is third hand, and thus cannot be so tested for reliability.
Moreover,.he ultimate sources of some of the hearsay statements are not identified, which again renders them unreliable as a matter of NRC practice.
Sig TennesFee Valley Authority (Hartsville i
Nuclear Plan Units 1A, 2A, 1B and 2B), ALAB-367, 5 NRC 92, 121 (1977); gl.
Metropolitan Edison CemoAny (Three Mile Island Nuclear Station, Unit 1), LBP-82-56, 16 NRC 281, 321 (1982) (unreliability of testimony as to rumors).
Accordingly, even if pages95-122 and 149-165 of the-Attachments were relevant (see supra Section 1.), they should nonetheless be excluded as double hearsay.3 3
As to those portions of the interviews concerning events in which the person interviewed did airectly participate, i.e., the " regular" as opposed t o double hearsay, those portions are irrelevani, since they do not deal with teacher participation in the June 1988 Exercise. I 1
CONCLUSION For the reasons stated above, the above-noted portions of the Test'acty should be excluded.
1 Respectfully submitted,
'Thohas 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 02110r2624 (617) 951-7000 i
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- i CERTIFICATE OF SERVICE 1, Jeffrey P. Trout, one of the attorneys fortthe--
Applicants herein, hereby certify that or May 19,01989 I.0"L made service of the within document by mailing copies *7:
thereof, postage prepaid, to:
Administrative Judge Ivan W. Smith, John P. Arnold, Esquire Chairman Attorney General Atomic Safety and Licensing George Dana Bisbee, Esquiro 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 Faderal Emergency Management Ato.nic 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 0;350 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
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 i
Appeal Board Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street Commission P.O.
Box 516 Washington, DC 20555 Manchester, NH 03105 t-
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Philip Ahrens, Esquire hr. J.
P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road l
General Rye, NH G3870 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 1:r. Calvin A.
Canney Chairman, Board of Salectmen City Manager RFD 1 - Box 1154 City Hall Kensington, NH C3827 126 Daniel Street Portsmouth, NH 03801 Senator Gordon J. Humphrey R.
Scott Hill-Whilton, Esquire U.S.
Senate Lagoulis, Hill-Whilton &
Washingron, 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 Hempe 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 da. 20->
7effrgfy P. Trout i
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