ML20214G485

Suffolk County,State of Ny & Town of Southampton Motion to Strike Portions of Lilco Testimony on Contention Ex 21.* Requests Portions of Util 870406 Testimony Re Contention Ex 21 Be Striken as Not Relevant.Certificate of Svc Encl

ML20214G485
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/19/1987
From:	Latham S, Letsche K, Palomino F KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY, TWOMEY, LATHAM & SHEA
To:	Atomic Safety and Licensing Board Panel
References
CON-#287-3517 OL-5, NUDOCS 8705270081
Download: ML20214G485 (17)

Text

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OCLKETED usNHC May 19, 1987

'87 NAY 21 P4 :25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 0FFILL.s a m iu. r 00CXET,rm f. 3Esvict Before the Atomic Safety and Licensino Board UAEM

~

)

In the Matter-of

)

)

LONG ISLAND LIGHTING COMPANY

)

Docket No. 50-322-OL-5

)

(EP Exercise)

(Shoreham Nuclear Power Station,

)

Unit 1)

)

)

SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON MOTION TO STRIKE PORTIONS OF LILCO'S TESTIMONY ON CONTENTION EX 21 Suffolk County, the State of New York, and the Town of Southampton (" Governments") hereby move to strike portions of LILCO's Testimony on Contention Ex 21, submitted to the Board on April 6, 1987, (hereinafter, the "LILCO Testimony").

The portions of the LILCO Testimony which the Governments seek to strike are identified below, as are the grounds for this Motion.

I.

PORTIONS OF THE LILCO TESTIMONY PURPORTING TO RELY-ON REPORTS FROM OTHER EXERCISES IS NOT RELEVANT, RELIABLE, OR PROBATIVE l

First, the Governments seek to strike the portions of the LILCO Testimony in which LILCO's witness Mr. Daverio, relying on the FEMA Post Exercise Reports

(" FEMA Reports") for 38 other exercises held at different times and in different parts of the l

8705270081 870519

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i country, sets forth the number of " demonstrations" of particular response functions or resources which allegedly occurred during those-38 other exercises.

The Governments. seek to have the Board strike these portions of the LILCO Testimony for two reasons.

First, what did or did not occur at other exercises simply is not relevant to the narrow issue presented by Contention Ex 21.

Second, as had been made manifest already in these proceedings, the FEMA Reports do not lend themselves readily to the type of numerical analysis which the LILCO Testimony purports to present.

They constitute inherently. unreliable evidence on such matters, and therefore, testimony relying on them is not probative.

A.

The Data LILCO Presents Relating to Other Exercises, Even if It Were Reliable, Is Not Relevant to Contention Ex 21 The thrust of Contention Ex 21 is that FEMA's conclusions that certain identified objectives were met or partly met during the Shoreham Exercise, are invalid.

The Contention alleges that these conclusions are invalid because, even with respect to the events and activities which FEMA did observe, the samples FEMA reviewed were too small to support valid generalizations.

It alleges, further, that in many instances, FEMA's observation of the sample under review was too limited (whether because of constraints arising from the scenario, or as a result of FEMA's limited resources) to support FEMA's conclusions about the capability of the sample observed.. _. _

.Thus, Contention Ex 21 relates solely to the events, the activities, and the samples observed by FEMA at the Shoreham

. Exercise.

The issue presented by Contention Ex 21 is:

are FEMA's conclusions about those events, those activities, and those samples valid?

Demonstrations which may have occurred or been observed at other exercises, held at different sites,. based on different plans, and according to different scenarios, cannot assist-in answering that question.

The 38 other exercises supposedly reviewed by Mr. Daverio can shed no light on this inquiry.

Thus, the portions of the LILCO Testimony devoted to toting up and characterizing events at these other exercises is not relevant or probative.

Furthermore, the Board's rulings that consideration of matters relating to other exercises may be relevant in the context of other contentions, do not apply with respect to Contention Ex 21.

For example, Contentions Ex 15/16 deal with whether what happened during the Shoreham Exercise constituted a

" full participation exercise" under the NRC's regulations.

The Board ruled that in determining the definition of a " full participation exercise," and in deciding whether that regulatory requirement was met by the Shoreham Exercise, other exercises could be informative.

The issue raised by Contention Ex 21, however, does not involve defining a regulatory requirement, as to which information, concerning how such requirement was defined elsewhere, could at least arguably be relevant aad probative.

Rather, Contention Ex 21 raises issues specific only to the -..

Shoreham Exercise:

whether.the-particular size of the samples reviewed by FEMA ~during that Exercise was sufficient to permit FEMA to reach the generalizations it made and the conclusions it reached about (a) the implementability of the LILCO Plan, and (b)~whether LILCO satisfied the Shoreham exercise objectives.

Events at other exercises have nothing to do with such Shoreham Exercise-specific FEMA conclusions or their validity.

LILCO's testimony on other exercises is, therefore, not relevant to or probative on the issues raised by Contention Ex 21, and should be stricken.

B.

The FEMA Reports Supposedly Relied Upon in the LILCO Testimony Do Not Lend Themselves to the Type of Numerical Analyses LILCO Has Attempted in Portions of Its Testimony

The purpose-of the FEMA Report for a given exercise is not to state in a straightforward way every incident and demonstra-tion-that occurred during an exercise.

Rather, it is an l'

~

interpretive document.

The views and viewpoints of a number of different evaluators, located at different places during the exercise, are compiled.

From such a compilation, a narrative is

.then composed --'a narrative which may contain only so many facts as.are necessary to form a substructure for the conclusions

-reached by the evaluators and set'forth in the final report.

Thus, the reporting of individual events and activities in these documents.is not -- and is not intended to be -- exhaustive.1 i

i 1

That such is the case has been proven in this proceeding.

i In order for the Governments to determine what actually happened at the Shoreham Exercise, it was necessary not only to obtain the

1, -

,.}

-Moreover, to the extent that the reports do focus on dis-

~

crete events _and' demonstrations, they do so only to illustrate certain. conclusions (such as, for example, conclusions about the integrated response capabilities offa number of different jurisdictions and organizations lying within-a particular EPZ).

Thus, some events are highlighted, while others may be~ ignored, or reported in vague, general, or elliptical terms,~because for the purpose o'f the conclusion being reached, it is not necessary to go-into detail.

As a result, it is hardly surprising that the reports do not lend themselves to exercises in counting.

This aspect of the FEMA Reports has been recognized by LILCO's own witnesses who have read the reports.

As Mr. Daverio stated in explaining his review of one of one of the: Attachments to_the-Contention 15/16 testimony,(an attachment based on the

" facts" contained in_ FEMA Reports):

We_did this based on our experience with the training testimony and general ~ knowledge that judgments have to be made in interpreting the FEMA reports to get'the-answers yes or no.

t This analysis was meant to look at the FEMA reports, make judgments and try to get the best data, because each region is different, and based on whether it was done in '81 or '86 it could be different.

(Tr. 6070-71).

i Similarly, counsel for LILCO has recognized the difficulties i

inherent-in relying upon the FEMA Reports for matters of fact:

critique forms filled out by every evaluator who was at the i

Exercise, but also to depose many of the evaluators.

And, even despite such discovery, gaps remain in the Governments' knowledge

-- and in the knowledge of the other parties -- about precisely what did and did not occur during the Exercise.

i i

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^

_ _ __ ~ _._. _ _ _. _ _. _ _. _ _. _. - _. _ _ _ _. _ _ _. _. _, _,. _ _.. _ _ - - - _

I

-The. point-that'they were making, and Mr.

-Daverio was making in terms of the exercise judgment,-is that the FEMA reports.themselves Jare not-encyclopedic.

The methodology they used is inherently not reduceable to total exactitude.

(Tr. 6092).

And yet, it is just such exactitude which portions of the LILCO Testimony.on Contention 21 purport to have somehow derived from FEMA reports.

Clearly, there is no basis for this Board to accept as

~

reliab1e or probative evidence the LILCO Testimony based on other FEMA exercise reports.

Indeed, the LILCO Testimony itself reveals that the purported precision somehow derived from the 4

other exercise reports is spurious.

For example, the. portion of the' testimony which precedes the table intended to total up the demonstrations of school buses at the 38 other exercises, states that " twelve [ FEMA-Reports] provided insufficient data to 7

determine if schools were part of the exercise or not."

LILCO Testimony, at 17.

Similarly, "Of the 38 exercises reviewed by LILCO, only 24 contains sufficient information to determine how many traffic control points were either activated or observed."

LILCO Testimony, at 22.

In short, the purpose and nature of FEMA Reports are such that the documents simply do not lend themselves to the type of "beancounting" which LILCO attempts in its Contention Ex 21 Testimony.

The problems inherent in any attempt to so use the FEMA Reports are compounded by the acknowledged' fact that the reports vary over time, between regions, and between sites.

If 4 1 4

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.o every report were consistent with every other report, it might be theoretically possible to equate, with some certainty or confidence, a lack of mention in a FEMA Report with a lack of demonstration at an exercise.

Even the most casual look at only a few FEMA Reports reveals, however, that such consistency is not the case.

Some reports list expected demonstrations at the beginning of the report, some do not.

In their text, some reports will consistently refer to an activity as simulated, while others will label it simulated in one place but fail to so characterize it elsewhere in the report.

The way that the reports are divided into " Executive Summaries" and then narratives about each jurisdiction which participated in the exercise can lead to overreporting of incidents in some cases and underreporting in others.

Reportage of demonstrations in the report may be an artifactlof the number of federal observers at the exercise and where they are located, rather than a true indication of what occurred during the exercises.

Furthermore, each individual evaluator is free to exercise his judgment in deciding what to report, and how extensively.

Clearly, FEMA Reports were not designed to provide the material for exercises in counting, or for the types of comparisons LILCO seeks to make.

It is not their purpose.

It is not their function.

The reports do not lend themselves to the use LILCO has put them, and they are inherently unreliable evidence on the points LILCO has sought to extract from them.

3 Furthermore, if the LILCO Testimony seeking to set forth numbers of demonstrations at other exercises is not stricken, it will be necessary for the Governments to probe during cross examination how and on what basis LILCO interpreted vague language in the reports, how and by whom " judgments" were made in arriving at the numbers included in the LILCO Testimony, and the bases (or lack thereof) for such judgments.

It will also be necessary for the Governments to attempt to go behind the reports which LILCO has left out of each table to determine what actually happened at those exercises.

The game is not worth the candle.

For the foregoing reasons, the Governments ask the Board to strike the following portions of the LILCO Testimony:

p.

5, full paragraph (beginning "In this respect")

p. 8, first paragraph pp. 11-12, Question and Answer No. 10 pp. 15-16, Question and Answer No. 13

p. 17, Question and Answer No. 15

p. 19, Question and Answer No. 17

p. 22, Question and Answer No. 20

p. 23, Question and Answer No. 22 Attachment B II.

PORTIONS OF THE LILCO TESTIMONY ADDRESS ISSUES NOT RAISED BY, AND OUTSIDE THE SCOPE OF CONTENTION EX 21 AND ARE THEREFORE IRRELEVANT Substantial portions of the LILCO Testimony should be stricken because they discuss matters which are irrelevant to the _ _.

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4 issues raised by Contention Ex 21 and'its subparts.

In most g

instances, these portions of the LILCO Testimony begin by criticizing the contention itself, for allegedly failing to address a matter.which LILCO wishes to address.

That criticism 3

'is then followed by a discussion of that matter which LILCO has 4

just finished acknowledging is not within the scope of the.

contention.

In each instance, the LILCO Testimony is irrelevant,,

3 precisely because the matter is outside the scope of Contention Ex 21.

-In addition, the matters LILCO attempts to interject into Contention Ex 21 were in fact addressed in other contentions, and, accordingly, in other testimony already heard by this Board.

Thus, the testimony we identify and seek to have stricken in-this section is, in general, cumulative as well as irrelevant to Contention Ex 21.

A.

Contention Ex 21 Raises One Narrow Issue, Directly Tied to Snecific FEMA Findinos and Conclusions j

Contention Ex 21 is relatively narrow and very specific.

It i

does not purport to challenge every FEMA conclusion about the I

Exercise, nor does it purport to challenge the size of every sample observed by FEMA.

Rather, it identifies certain soecific i

j FEMA conclusions and generalizations, relating to certain

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specific Exercise objectives, concerning the capabilities of i

certain soecific personnel or entities, and alleges that those conclusions and generalizations are invalid because the samples upon which they were based were too small to permit the conclusions drawn by FEMA.

The scope of Contention Ex 21 is J i a

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FEMA-observed " samples," which are identified in that' contention and its subparts.2 i

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B.

LILCO's Testimony Ignores Contention Ex 21 and Addresses Unrelated Issues Concocted by LILCO

~We list below all the portions of the LILCO Testimony which should be stricken because-they relate to subjects which are outside the scope-of Contention Ex.21.

We discuss in detail here just a few examples for' illustrative purposes.

The first instance of LILCO's using its testimony to criticize the contention and discuss matters other than those raised in the contention-occurs in the answer to Question 7, i

beginning on page 6 of the LILCO Testimony.

There Mr. Daverio states that "the contention is flawed systemically.in at least three ways, which will be illustrated issue by issue in the

-course of this testimony."

He then details his criticism of the i

. contention.

First, he asserts'that it does not identify "what Intervenors would consider adequate samples, nor even how they would apply accepted statistical methods to determine what would l

have constituted sufficient samples." (LILCO Testimony, p. 7).

Such criticism.of the contention has no place in expert 2

As this Board is aware, many of the FEMA conclusions about

[

other Exercise objectives are the subject of other contentions, l-as are matters relating to LILCO's " demonstrations" of numerous portions of its Plan not covered by Contention Ex 21.

Those 1.

conclusions and exercise results, however, are challenged in other contentions on grounds other than the insufficiency of the i

size of samples observed by FEMA.

Therefore, a discussion of them is not relevant to Contention Ex 21 which raises the sample size issue, and has no place in testimony on that contention. !

' testimony; moreover, the Intervenors' substantive testimony on Contention Ex 21 includes detailed discussion of such matters, which is precisely where such discussion belongs.

Second, Mr. Daverio asserts that "the contention misper-ceives the role of field sampling," and then he criticizes the contention for focussing on FEMA's observation of field activi-ties, rather than focussing, in addition, on FEMA's observations of other activities, such as " initial information gathering and evaluation," "decisionmaking capabilities," " initial call-out,"

and " mobilization."

(LILCO Testimony, p. 7)

Again, Mr.

Daverio's attempt to criticize or re-write Contention Ex 21 in his testimony is improper.

As a review of Contention Ex 21 and the Exercise objectives and FEMA conclusions cited in that contention makes clear, by and large that contention does not purport to address FEMA conclusions or' exercise results relating to decision-making, information gathering, initial callout, or mobilization activities.

FEMA conclusions and Exercise results dealing with those matters are addressed in other contentions, and are challenged on grounds stated in those other contentions, not on the basis of insufficient sample size.

Whether LILCO likes it or not, Contention 21 deals with only a limited number of specificelly identified field activitlei, and the capabilities of LERO personnel and others supporec ;

6.tonstrated by those activities.

The scope of Contention Ex 21 is limited to the i.

E A

Exercise objectives and FEMA's conclusions, drawn from its observations of the activities, which are cited in the contention.

Thus, for example, a discussion'of FEMA's observation of decisionmaking, information gathering, initial call-out, or mobilization relating to Route Alert Drivers (agg LILCO Testimony at p. 9,

10) has nothing to do with FEMA's conclusions which are the subject of Contention Ex 21 subpart A -- that is, the conclusions, derived from FEMA's observation of three Route Alert-Drivers driving their routes, relating to LILCO's ability to

. provide notification of the public in the event of siren failure.

[

fdut Objectives EOC 15, Field 5 and SA 9, and FEMA Report at 57, 64 and 74, all cited in Contention 21, subpart A.

It is those conclusions, about the Exercise objectives identified in the contention (and not conclusions about the separate objectives relating to decisionmaking, information gathering, communication f

or mobilization) which are the the only appropriate subject of testimony on Contention Ex 21.

The LILCO Testimony contains similar " criticisms" of Contention Ex 21, and similar discussions of irrelevant i -

demonstrations, FEMA observations, and conclusions, with respect i

. to each of the contention subparts, as identified in the list l

which follows.

All such portions of the LILCO Testimony should i

be stricken as outside the scope of Contention Ex 21 and therefore irrelevant.3 3

Some of the discussion contained in the listed portions of the LILCO Testimony is descriptive of how the LILCO Plan is intended to work and, therefore, arguably is " background" infor- !

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p. 6, last sentence, through p. 7

p. 9, second sentence:("In the first place

..."),

through p. 10, line 6

p. 12, second sentence of Answer 11 ("Agdin,

..."),

through p. 13, line 18

p. 13, line 25, through p. 14, line 3

p. 18, second sentence, through second paragraph

p. 19, Answer 18, second sentence ("Once again,

"),

through p. 20, line 12 III. ADDITIONAL PORTIONS OF THE LILCO TESTIMONY SHOULD BE STRICKEN AS IRRELEVANT, CUMULATIVE, OR NON-PROBATIVE Finally, several portions.of the LILCO Testimony should be stricken as irrelevant to the issues raised'by Contention Ex 21, cumulative of other testimony already admitted on other conten-tions, or simply not probative on issues material to Contention Ex 21.

They are listed below.

Testimony to be Stricken Reason

p. 10, last paragraph, Cumulative (Cont. Ex 34) through p. 11, line 2

p. 11, Answer 9 Cumulative (Cont. Ex 34) pp. 16-17, Answer 14 not probative of sampling issue raised in Contention Ex 21; irrelevant; cumulative (Conts.

15/16, 50) l mation.

The Governments nonetheless believe it is appropriate to strike such discussion from the Contention Ex 21 Testimony be-cause such " background" is contained in other testimony and is simply not relevant to the narrow issue presented in Contention Ex 21.

i. _. _. _.. _

n 6

p. 20, last paragraph, Irrelevant; not probative through p. 21, line 9

p. 21, Answer 19, second Cumulative (Cont. Ex 50);

paragraph, through p. 22, irrelevant; not probative line 8 Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 Lawr6nde Coe Lanpher f Karla J.

Letsche

/

Susan M. Casey KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C.

20036-5891 Attorneys for Suffolk County 0_.

A ian G.

Palosino

/

Richard J. Zahnleuter Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224 Attorneys for Mario M. Cuomo, Governor of the State of New York A Ao M

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B. LaTham v Twom Latham & Shea P.O.

Box 398 33 West Second Street Riverhead, New York 11901 Attorney for the Town of Southampton _ _ _ _ _ - _

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~87 MY 21 P4 f26

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' UNITED STATES OF AMERICA

[0 b

NUCLEAR REGULATORY COMMISSION

. BRANCH Before the Atomic Safety and Licensino Board-i-

)

In the Matter of

)

)

' LONG ISLAND LIGHTING COMPANY

)

Docket No. 50-322-OL-5

)

(EP Exercise)

(Shoreham Nuclear Power Station,

)

Unit 1)

)

)

CERTIFICATE OF SERVICE 1,

- I hereby' certify that copies of SUFFOLK COUNTY, STATE OF NEW YORK, AND TOWN OF SOUTHAMPTON MOTION TO STRIKE PORTIONS OF LILCO'S TESTIMONY ON CONTENTION EX~21 have been served on the following this~19th' day of May, 1987 by U.S. mail, first class, except as otherwise noted.

I John H. Frye, III, Chairman

• Dr. Oscar H. Paris *

~ Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S.

Nuclear Regulatory Commission Washington, D.C.

20555 Washington, D.C.

20555 Mr. Frederick J. Shon*-

William R. Cumming, Esq.*

Atomic Safety and Licensing Board Spence W. Perry, Esq.

U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.

20555 Federal Emergency Management Agency 500 C Street, S.W., Room 840 Washington, D.C.

20472 i

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Anthony F. Earley, Jr., Esq.

-Joel Blau, Esq.

General Counsel-Director, Utility. Intervention Long Island Lighting Company N.Y. Consumer Protection Board 175 East Old Country Road Suite 1020 Hicksville, New York 11801 Albany, New York 12210 Ms. Elisabeth Taibbi, Clerk W. Taylor Reveley, III, Esq.*

Suffolk County Legislature Hunton & Williams Suffolk County Legislature P.O. Box 1535 Office Building 707 East Main Street Veterans Memorial Highway Richmond, Virginia 23212 Hauppauge, New York 11788 Ms. Nora Bredes Docketing and Service Section Executive Director Office of the Secretary Shoreham Opponents Coalition U.S. Nuclear Regulatory Comm.

195 East Main Street 1717 H Street, N.W.

Smithtown, New York 11787 Washington, D.C.

20555.

Mary M. Gundrum, Esq.

Hon. Michael A. LoGrande New York State Department of Law Suffolk County Executive 120. Broadway, 3rd Floor H. Lee Dennison Building Room 3-116 Veterans Memorial Highway 4

New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Committee i

Suite K P.O. Box 231 San Jose, California 95125 Wading River, New York-11792 i

Martin Bradley Ashare, Esq.

Fabian G. Palomino, Esq.

Suffolk County. Attorney Richard J. Zahnleuter, Esq.

4 l

Bldg. 158 North County Complex Special Counsel to the Governor Veterans Memorial Highway Executive Chamber, Rm. 229 Hauppauge, New York 11788 State Capitol Albany, New York 12224 l

George E. Johnson, Esq.*

Stephen B. Latham, Esq.

U.S. Nuclear Regulatory Comm.

Twomey, Latham & Shea Office of General Counsel 33 West Second Street Washington, D.C.

20555 Riverhead, New York 11901 l

l i

I

David A. Brownlee, Esq.

Mr. Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500. Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W.

43rd Street New York, New York 10036 l

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Karla J. Letsche KIRKPATRICK & LOCKHART 1800 M Street, N.W.

South Lobby - 9th Floor Washington, D.C.

20036-5891 By Hand m.

--.