ML20082H739

Motion to Strike or for Discovery on & Rebuttal to Testimony of Listed Suffolk County School Teachers on Contention 25.D Re Role Conflict for Early Dismissals from Schools.Testimony Unreliable.Certificate of Svc Encl

ML20082H739
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/28/1983
From:	Mccleskey K HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20082H731	List: ML20082H728 ML20082H735 ML20082H739
References
ISSUANCES-OL-3, NUDOCS 8312010268
Download: ML20082H739 (27)

Text

i LILCO, November 28, 1983 00CKETED UstlRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION- -

'83 NOV 30 A10:46 Before the Atomic Safety and Licensing Board

'In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-3

) (Emergency Planning (Shoreham Nuclear Power Station, ) Proceeding)

Unit 1) )

LILCO's Motion to Strike or for Discovery and Rebuttal on the Testimony of Juanita Zuckerman, Joseph A. Staltzer, Ronald Posnack, Georgiana S. Fisher, Bruce R. Kagan, William F. Bautz, Lynn Capobianco, Anthony Fiorelli, Patricia Ann Liano, Marguerite De Santis, Lester Kiehn, Howard Katzoff on Behalf of Suffolk County Regarding Emergency Planning Contention 25.D The Long Island Lighting Company (LILCO) hereby moves the Board to strike in its entirety Suffolk County's written testi-many from school teachersl/ on role conflict and its effect on early dismissals from schools. This testimony is entitled "Di-rect Testimony of Juanita Zuckerman, Joseph A. Staltzer, l

William F. Bautz, Lynn Capobianco, Anthony Fiorelli, Patricia Ann Liano, Marguerite De Santis, Lester Kiehn, Howard Katzoff i On Behalf of Suffolk County Regarding Emergency Planning Con-l l tention 25.D." (We will refer to it as "the teachers' testimo-l j ny" for short.) In the alternative, LILCO moves that the Board f

1/ Actually, witness Fisher states that she is a former teacher and now President of the Parent Teacher Organization in the Miller Place Union Free School District. Testimony of Juanita Zuckerman et al. at 1. The remaining witnesses state that they are teachers. Id. 1-2.

8312010268 831128 PDR ADOCK 05000322 G PDR

r-grant additional discovery on this testimony in the form of document requests and depositions from each of the witnesses, i

and that the Board allow LILCO the opportunity to file rebuttal

~ testimony at the close of hearings on the Group I issues, should LILCO choose to do so.

The bases for this motion are: (1) the testimony prof-fered by the witnesses is unreliable and therefore irrelevant and (2) LILCO has been unfairly disadvantaged by the testimony, because these witnesses were not identified by the County dur-ing discovery in this proceeding and because the witnesses rely in part on documents that were requested but not produced dur-ing discovery.

Contention 25.D reads as follows:

The LILCO plan fails to take into account the role conflict that is likely to be expe-rienced by teachers, other school employees, and crossing guards. In fact, a substantial number of such personnel are likely to at-tend to the safety of their own families rather than remaining at the schools or at their posts in the event of an emergency.

Accordingly, there is no assurance that under the LILCO Plan adequate personnel will be available to supervise children, including those required to walk home, dur-ing the early dismissal process, during school evacuations, or in the event that children are sheltered in the schools. As a ,

result, the following protective actions could not and would not be implemented: )

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1. early dism,issal of schools;

2. sheltering of school children in schools;

3. evacuation of schools.

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1 The teachers' testimony makes essentially three points in connection with Contention 25.D. LILCO would summarize the three points as the following propositions:

1. In the event that the schools in the EPZ were to im-plement their early dismissal plans in response to a ra-diological emergency at Shoreham, many of the teachers in each of the witnesses' school districts (Boces I, Boces II, Central Island Central School District, Miller Place Union Free School District, Mount Sinai Union Free School District, Port '

Jefferson Union Free School District, Rocky Point Union Free School District, and Shoreham-Wading River Central School Dis-trict)2/ would leave school children unattended and go home to be with their families.

2. Were a general emergency to occur, and an evacuation of children from Shoreham-Wading River School to relocation centers advised, teachers would not be available to supervise children on buses and at relocation centers due to role con-

. flict.

3. This lack of teachers at schools, on buses, and in re-l location centers would result in frightened children, confu-sion, and chaos, exposing students to unacceptable risks due to the lack of supervision.

l 2/ Each witness is testifying with respect to his or her own school district. Testimony of Juanita Zuckerman et al. at 2.

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Under the NRC's rules of practice, testimony must be rele-vant to the issues in contention. 10 CFR Section 2.743(c).3/

And irrelevant testimony is the proper subject of a motion to

' strike. See 10 CFR Part 2 Appendix A. V(d)(7). The Board has the power to implement these provisions, both through its gen-eral power to regulate the conduct of a hearing, 10 CFR 5 2.718, and through the specific authority under 10 CFR 5 2.757(b) to strike argumentative, repetitious, cumulative, im-material, unreliable, or irrelevant evidence. The Board's gen-eral power under 2.719 also allows the Board to strike testimo-ny as a remedy for surprise as has been occasioned here.

Alternatively, LILCO asks that the Board, pursuant to its 2.718 powers and to 10 CFR 5 2.743(a), and in accordance with Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), slip op. 5-6 (October 7, 1983) order discovery in the form of (1) depositions of each of these wit-nesses as soon as possible and no later than Friday, December 23,4/ and (2) amendments to be completed by December 10 by the

! County to responses to LILCO's document requests and i

3/ Title 10 CFR Section 2.743(c) provides:

Only relevant material, and reliable evidence which is not urduly repetitious will be admit-ted. Immaterial or irrelevant parts of an ad-missible document will be segregated and ex-cluded so far as is practicable.

4/ If necessary, the County should be required to produce j

more than one witness per day for deposition, and to schedule depositions of two witnesses simultaneously on any given day.

interrogatories, to include pertinent information from these newly-designated witnesses. In addition, LILCO requests the opportunity to file rebuttal testimony at the close of litiga-

. tion of the Group I issues.

j In.Diablo Canyon, the Board had ordered that all discovery should close on September 28. The applicant requested on

September 29 that the Board bar several of the intervenors' ex-pert witnesses from testifying because those witnesses were identified in supplemental interrogatory answers just prior to, or after, the September 28 date, thereby foreclosing the appli-cant's opportunity to depose the witnesses. In the alterna-tive, the applicant sought leave to depose the newly-named wit-nesses. Testimony was due to be filed on October 17. The Board ruled that exclusion of witnesses was not appropriate under the circumstances, but allowed the depositions requested by the applicant, and ordered the intervenors to amend all i

previously-filed responses to document requests and interroga-tories to account for the newly-designated witnesses. Failure to timely comply was to result in exclusion of the witnesses from the hearing.

LILCO believes, as is detailed in part II of this motion, that the County's filing testimony by witnesses not identified at all during discovery or prior to filing testimony, the Coun-ty's failure to provide documents requested in discovery on which it later relied in that testimony, and the unreliable na-ture of the testimony combine to create circumstances

distinguishable from those in Diablo Canyon and warranting ex-clusion of the witnesses rather than relief in the form of ad-ditional discovery. But should the Board deny the motion to

. strike, LILCO would welcome the opportunity to probe the Coun-ty's newly-designated witnesses' views through additional dis-covery.

Part I below discusses the unreliability of the teachers' testimony and part II the surprise occasioned by the County's failing to identify these witnesses and to produce certain documents prior to filing testimony.

I.

The definition of " relevant evidence" from Rule 401 of the Federal Rules of Evidence is as follows:

Rule 401. Definition of " Relevant Evidence".

" Relevant Evidence" means evidence having any

( tendency to make the existence of any fact that is of consequence to the determination of the l action more probable or less probable than it l would be without the evidence.

There is no question but that if the teachers' testimony is true, their testimony is "of consequence to the determination of the action." But the teachers' testimony does not have "any tendency to make the existence of any fact . . . more probable or less probable than it would be without the evidence." In l

that sense, the teachers' testimony is irrelevant and should be struck.

The teachers' testimony purports to represent what would be the behavior of teachers within the EPZ should an emergency dismissal be advised for the schools during an emergency at Shoreham. One reasonably could view as reliable testimony rep-resenting a particular position regarding teachers' behavior during an evacuation if (1) the witness attempts to establish himself as an expert in relevant aspects of the behavioral sci-ences and therefore shows he is qualified as an expert witness -

to testify on teacher behavior, (2) the witness is shown to represent statistically a larger group, and the witness testifies as to the views of that group, (3) the witness is a teacher in the 10-mile zone who is stating his or her personal views regarding response to a postulated emergency. None of the teachers testifying on behalf of the County fall into any one of these three categories.

First, the schoolteacher witnesses do not purport to be expert witnesses in the area of human behavior and do not at-tempt to identify themselves as such. They state that they are I

teachers associated with particular school districts within the 10-mile zone. Therefore, the teacher witnesses do not fall into the first category listed above.

Second, there is no indication whatsoever in their testi-mony that these twelve individuals can reliably be viewed to represent some larger group. There is no evidence to indicate that these witnesses statistically represent the views of the l population of teachers in the EPZ,5/ or that they were j

5/ For example, the witnesses testify that based upon discus-sions with teachers and statements made at meetings, the wit-

[

recruited for testimony in any way other than by Suffolk County seeking out teachers who would support the County's contention that teachers will experience role conflict. It continues to be LILCO's view, as stated in its testimony in response to Con-tention 25, that representations of future behavior in a postu-lated emergency can not be used to accurately predict behavior )

l during an emergency. But assuming for a moment that such pre-dictions are to be accepted as accurate, one must at least es-tablish that representations made by individuals can be i

reliably generalized to the group. This the County has not l done or even attempted to do.

l Third, these witnesses could conceivably reliably repre-sent their own predicted behavior as teachers in response to a postulated emergency (with the exception of witness Fisher, who no longer teaches). If one believes that predictions of future behavior in an emergency can be used to predict response during an actual emergency, presumably these witnesses could at the least shed light on their own behavior and the problems that behavior is likely to cause in an emergency in each witnesses' school districts. But none of the individuals testifying have stated that they personally would not remain with the school (footnote continued) nesses know that teachers with their own children would proba-bly leave school in an emergency to care for their children.

Testimony of Juanita Zuckerman, et al. at 6.

children in the event of an emergency at Shoreham. Therefore, their testimony cannot be viewed to represent even their per-sonal views on role conflict. In addition, if this were part of their purpose, the opportunity for limited appearances is the appr~opriate vehicle for individuals wishing to express their views regarding the licensing of a plant, not the formal proceeding, even if these individuals are given the opportunity to file testimony by intervenors such as Suffolk County. Con-sequently, even if these witnesses' testimony was taken to rep-resent their own views and nothing more, it should be struck.

Presuming that the teacher witnesses are not being held 1

r out as experts and are not representing their individual views, I

j but are put forward to represent the views of school teachers ,

I generally within their school districts, the deficiency as to l their ability to represent statistically the group's views could be explored through discovery. Unfortunately, the County l

has barred this avenue from LILCO.p/

II.

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Because LILCO has been denied the opportunity of discovery I

regarding these witnesses, this testimony should be struck.

5/ One might argue that LILCO can probe on cross-examination these witnesses' ability to represent the view of a larger i group. LILCO views cross-examination as a poor substitute for

! discovery (if it can be viewed as a substitute at all). Con-ducting discovery during cross-examination is an inefficient

use of hearings time.

DePpite the fact that Contention 25.D plainly states that "the LILCO plan fails to take into account the role conflict that is likely to be experienced by teachers, other school em-ployees and crossing guards," and that "a substantial number of such personnel are likely to attend to the safety of their own families rather than remaining at the schools or at their posts in the event of an emergency," the Countv failed to identify any of the school teacher witnesses prior to filing testimony.

The first time LILCO knew of these witnesses was when the Coun-ty filed the teachers' testimony on November 18, 1983.

At the County's instance, lengthy discovery was conducted in this proceeding over a period of approximately four months prior to the filing of testimony, including document production and numerous depositions. Even after the cutoff of formal dis-covery on October 14, 1983, the parties continued to exchange documents and information informally, including identifying ad-ditional witnesses by letter as those witnesses became known to each of the parties.2/ At no time during discovery did the County suggest that school teachers would be presented as wit-nesses to buttress Contention 25.D or any other contention.

Instead, the County timely identified only behavioral expert witnesses to testify in connection with the role conflict issue.8/

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l 7/ A more detailed discussion of the discovery completed to l

date by the parties appears in LILCO's Motion for Discovery On l and Rebuttal to Polk, filed today.

8/ In a letter dated November 10, 1983, eight days before testimony was due to be filed, the County identified six new 1

(footnote continued)

- ~. .-. . - - .

Had LILCO known of these witnesses earlier, there is no question but that LILCO would have attempted to pursue repre-sentations made by these witnesses that they speak for teachers

-in the EPZ by deposing them in discovery, propounding interrog-atories, and requesting pertinent documents. Presumably, the background of these witnesses, the nature of their testimony, the way they were solicited, and whether they statistically represent the views of other people within the 10-mile EPZ could have been probed through that discovery. It is also pos-sible that LILCO might have included witnesses of its own to rebut these witnesses' testimony. Unfortunately, these wit-nesses are testifying upon Group I issues, which are due to come to trial in a week. LILCO is disadvantaged by the Coun-ty's having filed testimony from a group of witnesses that were (footnote continued)

I witnesses -- school district superintendents -- who also would i be testifying on Contention 25. (The school superintendents' testimony is the subject of a motion for discovery and rebuttal filed this day by LILCO.) The County indicated in its November 10 letter that additional changes to the County witnesses, if any, would be identified as soon as the changes were known.

l LILCO stated in a reply letter on November 14 that any addi-tional changes at that point to the County's witness list would be unacceptable because of the lateness of the designation and closeness to the filing of testimony. Nothing more was heard from the County regarding its witnesses until testimony was filed, when the heretofore unannounced school teacher witnesses were included.

The County has since informed LILCO that the decision to file the teachers' testimony was made on the evening of November 17. The County has also provided LILCO with documents entitled " Resume" for each of the teacher witnesses. These documents are attached.

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not identified during the lengthy discovery process and in fact were unknown to LILCO until the day testimony was filed.

In addition, at least one of the two surveys referenced in

.the teachers' testimony at pages 7 and 8 was not provided to the County in discovery. LILCO was entitled to these studies in response to its request of July 21, 1983 for "[a]ny docu-ments addressing the question of whether County personnel or other people who might be needed to perform emergency functions will perform their duties in an emergency, or whether for some reason (for example, role conflict or fear for their own safe-ty), they will fail to perform their duties or delay in per-forming them." The County replied to LILCO's request on August 19, 1983 but did not include the surveys cited at pages 7 and 8 of the teachers' testimony.9/

i 9/ It is possible that the County may have provided the November 1982 study; the reference in the testimony to that study is so vague that if the study was provided, LILCO is un-able to identify it as such.

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Conclusion LILCO respectfully requests that the Board strike in its entirety the teachers' testimony filed by the County. Alterna-tively, LILCO requests that the Board allow LILCO an opportuni-ty (1) to depose these witnesses, (2) to request documents rel-evant to their testimony, and (3) to file, at the close of the hearings on the Group I issues, rebuttal testimony in response to the teachers' testimony on Contention 25.D.

Respectfully submitted, BLE8 D1%b Jdmes p. Christhan

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Kathy E. B. McCleskey Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23219 DATE: . November 28, 1983 f

....,.-_._y. . - . _ . . . , _ . - . _ , . - . . - . . , . .,, ,

RESUME William F. Bautz 15 Locust Avenue Miller Place, New York 11764 EDUCATION:

Houghton College (B.A.)

State University of New York at Stony Brook (M.S.)

POSITION:

1971-Present- Teacher, Mt. Sinai Union Free School District l

RESUME Lynn Capobianco 227 Edgewood Avenue Smithtown, New York 11787 EDUCATION:

Hood College, Frederick, Md. (B.A.)

C.W. Post College Center, Long Island University (M.A.,M.S., -

and M.L.S.)

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POSITION:

Librarian, Mt. Sinai Union Free School District

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RESUME Marguerite De Santis 33 Artist Lake Boulevard

- Middle Island, New York 11953 EDUCATION:

Adelphi University (B.A.)

State University of New York at Stony Brook (M.A.)

POSITION:

1974-Present Teacher, Port Jefferson Union Free School District l

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RESUME Anthony Fiorelli 19 Forrest Avenue Centereach, New York 11720 EDUCATION:

State University of New York at Stony Brook (B.A.)

Hofstra University (.M . A . )

POSITION:

1971-Present Teacher, Mt. Sinai Union Free School District f

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RESUME Georgiana S. Fisher

. 27 White Birch Circle

, Miller Place, New York 11764 EDUCATION:

State University of New York at Oswego (B.A.)

Adelphi University (M.A.)

POSITIONS:

President, Parent Teacher Organization of the Miller Place Union Free School District Retired school teacher

RESUME ,

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Bruce A. Kagan 7B Country Club Drive Coram, New York 11727 -

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EDUCATION:

University of Buffalo (B.A.)

C.W. Post College Center, Long Island University (M.A.)  :

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POSITION:

1968-Present Teacher, Miller Place Union Free School District c

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i RESUME t

Howard Katzoff

, 33 Artist Lake Boulevard i , Middle Island, New York 11953 -

N EDUCATION:

Queens College (B.A.)

Hofstra University (..A.) M POSITION:

1975-Present Teacher, Shoreham-Wading River

Central School District l

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b RESUME Lester Kiehn 46 Mahogany Road Rocky Point, New York 11778 EDUCATION:

State University of New York at Stony Brook (B.S. and M.S.)

POSITIONS:

1972-Present Teacher, Rocky Point Union Free School District President, Rocky Point Teachers Association t

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RESUME Patricia Ann Liano 24 Rita Crescent Road Commack,New York 11725 EDUCATION:

State University of New York at Stony Brook (B. A. and M.A.)

POSITION:

1970-Present Teacher, Mt. Sinai Union Free School District I

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RESUME Ronald Posnack 4 Wyngate Lane Coram, New York 11727 EDUCATION:

Queens College (B.A.)

C.W. Post College Center, Long Island University (M.A.)

POSITIONS:

1975-Present Teacher, Middle Island Central School District Second Vice President, Middle Island Teachers Association l

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RESUME Joseph A. Stalzer 4 32 Groveland Park Boulevard Sound Beach, New York 11789 EDUCATION:

Suffolk County Community College City College of New York State Certified Vocational Teacher POSITION:

1979-Present Teacher, BOCES II I

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RESUME, Juanita Zuckerman 391 Old Farmingdale Road

- W. Babylon, New York 11704 i EDUCATION:

Dowling College (B.A.)

Adelphi University (M.S.)

POSITION:

1977-Present Teacher, BOCES I i

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b LILCO, Novenbar 28, 1983 f CERTIFICATE OF SERVICE In the Matter of .

LONG ISLAND LIGHTING COMPANY 00(g W// h (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-32 2-OL-3 33 sn,, _

I hereby certify that copies of "L{pCO'snur Jy g lh r Motio Dis-covery on and Rebuttal to the Testimony o efg'i,a'gdRossi, r

Muto and Smith, Campo, and Petrilak on Contention 25 -- Role Conflict" and "LILCO's Motion to Strike or for Discovery and Rebuttal on the Testimony of Juanita Zuckerman, Joseph A.

Staltzer, Ronald Posnack, Georgiana S. Fisher, Bruce R. Kagan, William F. Bautz, Lynn Capobianco, Anthony Fiorelli, Patricia Ann Liano, Marguerite De Santis, Lester Kiehn, Howard Katzoff on Behalf of Suffolk County Regarding Emergency Planning Con-tention 25.D" were served this date upon the following by first-class mail, postage prepaid, or (as indicated by one as-terisk) by hand, or (as indicated by two asterisks) by Federal Express.

Jar. ?s A. Laurenson,* Secretary of the Commission Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory l Commission Atomic Safety and Licensing i East-West Tower, Rm. 402A Appeal Board Panel l 4350 East-West Hwy. U.S. Nuclear Regulatory Bethesda, MD 20814 Commission Washington, D.C. 20555 Dr. Jerry R. Kline*

Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East-West Tower, Rm. 427 Washing ton, D.C. 20555 4350 East-West Hwy.

Bethesda, MD 20814 Bernard M. Bordenick, Esq.*

l David A. Repka, Esq.

Mr. Frederick J. Shon* Edwin J. Reis, Esq.

Atomic Safety and Licensing U. S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory 7735 Old Georgetown Road Commission (to mailroom)

East-West Tower, Rm. 430 Bethesda, MD 20814 l 4350 East-West Hwy.

I Bethesda, MD 20814

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a Eleanor L. Frucci, Esq.* Stewart M. Glass, Esq.**

Attorney Regional Counsel Atomic Safety and Licensing Federal Emergency Management Board Panel Agency U. S. Nucleer Regulatory 26 Federal Plaza, Room 1349 Commission New York, New York 10278 East-West Tower, North Tower 4350 East-West Highway Stephen B. Latham, Esq.**

Bethesda, MD 20814 Twomey, Latham & Shea 33 West Second Street David J. Gilmartin, Esq. P.O. Box 398 Attn: Patricia A. Dempsey, Esq. Riverhead, New York 11901 County Attorney Suffolk County Department Ralph Shapiro, Esq.**

of Law Cammer & Shapiro, P.C.

Veterans Memorial Highway 9 East 40th Street Hauppauge, New York 11787 New York, New York 10016 Herbert H. Brown, Esq.* James Dougherty, Esq.*

Lawrence Coe Lanpher, Esq. 3045 Porter Street Christopher McMurray, Esq. Washington, D.C. 20008 Kirkpatrick, Lockhart, Hill Christopher & Phillips Howard L. Blau 8th Floor 217 Newbridge Road 1900 M Street, N.W. Hicksville, New York 11801 Washington, D.C. 20036 Jonathan D, Feinberg, Esq.

Mr. Marc W. Goldsmith New York State Energy Research Group Department of Public Service 4001 Totten Pond Road Three Empire State Plaza Waltham, Massachusetts 02154 Albany, New York 12223 MHB Technical Associates Spence W. Perry, Esq.**

1723 Hamilton Avenue Associate General Counsel l Suite K Federal Emergency Management i

San Jose, California 95125 Agency 500 C Street, S.W.

Mr. Jay Dunkleberger Room 840 New York State Energy Office Washington, D.C. 20472 Agency Building 2 Empire State Plaza Ms. Nora Bredes Albany, New York 12223 Executive Coordinator Shoreham Opponents' Coalition 195 East Main Street Smithtown, New York 11787 D u w E S f) W fe u Khthyp.B. ~Mc'C16dkey Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: November 28, 1983