ML20081C754
| ML20081C754 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 03/12/1984 |
| From: | Zeugin L HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| OL-3, NUDOCS 8403150004 | |
| Download: ML20081C754 (15) | |
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LILCO, March 12, 1984 l U Ep m ru n N N o g;cd DOCKETED I'E UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSI.ON.._
'8:4 MAR 14 N0:20 Before the Atomic Safety and Licensing Board
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In the Matter of
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50-322-OL-3
) Docket No.
LONG ISLAND LIGHTING COMPANY (Emergency Planning Proceeding)
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(Shoreham Nuclear Power Station,
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Unit 1)
LILCO'S OPPOSITION TO MOTION OF GOVERNOR MARIO CUOMO FOR LEAVE TO FILE REBUTTAL TESTIMONY ON EVACUATION TIME ESTIMATES CONTENTION 65, I.
INTRODUCTION the State of New York filed a " Motion of on March 8, 1984, for Representing the State of New York, Governor Mario Cuomo, Leave to File Rebuttal Testimony on Contention 65, Evacuation Time (hereinafter NYS Motion) and attached a copy of the Estimates"
" Rebuttal Testimony of Dr. David T. Hartgen and Foster J. Beach III on Behalf of the State of New York Pertaining to Emergency (hereinafter Planning Contention 65, Evacuation Time Estimates"
" Rebuttal" or proffered " Rebuttal").
The State of New York has failed to establish good cause for First, while styled as the filing of the proffered " Rebuttal."
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rebuttal testimony, the proffered testimony is nothing more than a and should, have veilea attempt to introduce evidence that could, been included six weeks ago in New York State's profiled direct Second, the rebuttal testimony does testimony on contention 65.
as narrowed by not focus on issues as they now stand --
i.e.,
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8403150004 840312 PDR ADCCX 05000322 PDR
three successive rounds of testimony filings and two rounds of cross-examination.
As a result, the proffered " Rebuttal" is not rebuttal at all but rather a combination of inaxcusably tardy foundations for the State's January 24 direct. testimony and simi-larly tardy redirect testimony which ignores the narrowing of issues which took place in the successive rounds of filings and in The filing of rebuttal testimony is over two weeks of hearings.
as this Board has observed, one not an absolute right, but rather, one conditioned on the proponent's meeting two tests of relevance, and one of timeliness.1/
The proffered of non-cumulativeness, the NYS motion to admit it should
" Rebuttal" meets none of these; be denied.
II.
BACKGROUND Contention 65 has been the subject of extensive testimony Direct testimony on Contention 65 was originally filed filings.
1983.
the NRC Staff and Suffolk County on November 18, by LILCO, As a result of material contained in those filings and the subse-quent revision of Appendix A to the LILCO Transition Plan, To the extent New York State's motion suggests that this Board has prejudged the admissibilty of this proffered " Rebut-1/
tal" testimony (see NYS Motion at 1 (reference to Board'sThe referenced statement at Tr. 3762)) it is simply incorrect.
statement merely notes:
{T]he State might very well be able to pres-ent this in the form of rebuttal testimony that might be admissible at some later time.
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Tr. 3762 (emphasis supplied).
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supplemental testimony was filed by LILCO and Suffolk County on January 16, 1984.
Hearings on all these pieces of testimony were held for two weeks during mid-January -- January 17-20 and 24-27.
The State of New York was present at and participated in these hearings.
three days before the planned conclusion On January 24, 1984, of hearings on Contention 65, New York State moved without prior On January notice to submit direct testimony on Contention 65.
26, the Board admitted New York State's concededly untimely testi-Following depositions of New York's wit-mony.
See Tr. 3288-93.
1984 LILCO filed Supplemental Testimony on February 10,
- nesses, that was designed to respond to new matters raisad in New York This Supplemental Testimony presented State's direct testimony.
no new analyses or data, but rather relied on information pre-to sented in Appendix A, or produced in discovery months before, refute concerns raised by New York State in its January 24 testi-Hearings were held on New York State's direct testimony and mony.
1984.
At on LILCG'o Supplemental Testimony on February 23 and 24, counsel for Suffolk County, on questioning of the those hearings, attempted to elicit responses from those New York State witnesses, witnesses about data concerning the asserted coarseness of the 3757-76) and EPZ roadway roadway network modeled by LILCO (see Tr.
capacities (see Tr. 3776-79) that the witnesses presumably had in but had not included in their direct testimony.
their possession, The Board sustained LILCO's objections to this after-the-fact attempt to lay a foundation for New York State's direct testimony l
by " friendly cross-examination" (see Tr. 3757-79).
New York then utilized a portion of those data, consisting of a list of since corrected and reconfigured as unmodeled roadways in the EPZ, at the same hearing sessions in proffered " Rebuttal" Appendix C, see Tr. 3815-18 and questioning of LILCO witness Edward Lieberman, New and had the opportunity to utilize the rest of it.2/
3837-43, York State now seeks for the third time to submit those same data in the form of " rebuttal" testimony (see NYS Motion at 1-2).
The test for admissibility of rebuttal testimony has already been addressed by this Board.
In this Board's Memorandum and Order of February 28, 1984,3/ it adopted a four-part test, already established in other cases cited by the Board, which the proponent of rebuttal testimony must meet to establish " good cause" for its admission, as follows:
relevant to an important point in the 1.
direct testimony; arguably relevant to an issue of deci-2.
sional importance in this proceeding; 3.
not cumulative with any other other testimony in the record; and 4.
incapable of being filed in a more timely fashicn.
the Memorandum and Order at 7.
With regard to the fourth showing, 2/
Proffered " Rebuttal" Appendix D, consisting of a large chart, is apparently the same chart that was produced for the first time (Tr. 3696-97).
The undescribed in the hearings on February 23.
" photo log" (proffered " Rebuttal" Appendix E) was stated by New (Tr.
York counsel to be available at the same hearing session.
3707).
Motion and Order on Suffolk County's Motion to File Rebuttal 3/
Testimony of Stephen Cole and Andrea Tyree.
Board added that "[t]he proponent must show that it could not rea-sonably have filed the proffered testimony at some earlier point in the proceeding."
Id. at 8.
Indeed, it The NYS Motion does not meet its fourfold burden.
does not even directly attempt to make these four showings, but rather does little more than parrot the proffered " Rebuttal" and assert factual conclusions that are not necessarily warranted by The motion makes no effort to establish that the that testimony.
proffered " Rebuttal" is not cumulative or could not have been filed earlier, except to assert broadly that it is noncumulative A closer examination of the and timely (see NYS Motion at 6).
motion and the proffered " Rebuttal" reveals that it does not meet the showings required by this Board.
SUBJECTS OF REBUTTAL TESTIMONY III.
New York State asserts that its proffered " Rebuttal" addresses three narro91y focused areas (NYS Motion at 2):
roadway capacities likely to prevail during 1.
at 3);
an evacuation (id.
effect of side friction on capacities (id. at 2.
4); and the detail of KLD's roadway network (id, at 3.
5).
New York State identifies a portion of a single answer in LILCO's Supplemental Testimony as the basis for its asserted need to file That passage, which is rebuttal testimony (see NYS Motion at 2).
part of the general conclusions LILCO's witnesses drew about New j
York's direct testimony, merely states, accurately, that the
. State's January 24 testimony contained " general, unquantified con-I New York State now attempts to use that statement about cerns."
the weakness of its direct testimony to justify introducing a broad variety of information it could and should have submitted with that testimony, which itself was over two months later than the other parties' initial direct testimony.
New York State should not be permitted, nearly two months yet later, to use such a statement to excuse its own tardiness.
Roadway Capacities During An Evacuation 1.
'Zhe proffered " Rebuttal" seeks to present information on the roadway capacity of 23 of the 280 links represented in KLD's mod-The eling analysis (NYS " Rebuttal" at 3 & t.ppendix A thereto).4/
The proffered " Rebuttal" also refers to Appendices D and E, 4/
which allegedly depict these links and support the capacities reported in proffered " Rebuttal" Appendix A (see NYS " Rebuttal" at These appendices were not served on counsel for LILCO nor the Board with the testimony, as is required by the Commission's 3-4).
the testimony states they will be "made regulations.
- Instead, available to the Board and all parties prior to (their] introduc-Interested persons should contact counsel tion into the record.
for New York State to make viewing arrangements" (NYS " Rebuttal" New York State asserts that the photolog data are at 3 and 4).
"readily available" (NYS " Rebuttal" at 8), though its witnesses or even referred to them, naver asserted any reliance on them, either in their January 24 direct testimony or their February 1 If, as apparently was the case, New deposition on that testimony. York State intended to rely on the chart now proposed as
" Rebuttal" tal" Appendix D a:2d on the photolog now proposed as it should have also Appendix E in the February 23-24 hearings,known at that time, when its coun file rebuttal testimony, that these unusual exhibits would be Yet he stat-d nothing either then or in the two weeks relied on.
between the hearing and the filing of this testimony either to at-tempt to figure out how to serve them or aven to notify the other parties of New York State's desire to use them without the re-Given the short quired service.this motion before the resumption of hearings, New York State s "come-and-get-it" approach to " service" of these two appendices is footnote continued how purpose of this part of the testimony, it is asserted, is to sgen-that "the State's estimates of level of service D volumes are From this asser-erally lower than KLD's" (NYS " Rebuttal" at 3).
intersections may not the witnesses sweepingly conclude,
- tion, limit capacities, but rather the roadways upstream of the inter-Finally, the sections may be the limiting factor (see id.).
sti-testimony suggests that the difference between the State s e f a di-mates and KLD's estimates may have resulted from the use o t 4-rectional correction factor for calculating capacities (id. a As is shown in detail immediately below, this portion of the 6).
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proffered " Rebuttal" fails to meet the requirements for a s ow ng of good cause identified by this Board.
is not Relevant T_he NYS " Rebuttal" a.
New York's motion for leave to file the proffered " Rebuttal" Then, apparently to attempt summarizes this testimony on page 3.
f this mate-to establish the relevance and decisional importance o the rial, the motion draws a conclusion that is never presented in namely, "that and does not necessarily follow from it, testimony, KLD's capacity figures are overestimated and KLD's evacuation Evacuation time times are underestimated" (NYS Motion at 4).
New York estimates are the subject of Contention 65, and unless l
State establishes that asserted differences in capacity not on y footnote continued I
Accordingly, LILCO asks totally inappropriate and unacceptable.
documents that the Board not consider statements ab 1
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' they are not rele-but that they affect evacuation times,
- exist, Nowhere does the vant to the resolution of Contention 65.
tion.
In preffered " Rebuttal" attempt to draw this factual connec a review of Appendix A to the proffered " Rebuttal" reveals
- fact, two factors that suggest that this connection cannot be drtwn.
some rradway capacities used by KLD are below those calcu-
- First, Since the lowest link lated by New York State for any given road.
h capacity on a given roadway will act as a bottleneck, and t us limit evacution times on that particular roadway, these lower val-The ues may indicate that evauation times would not be affected.
- Second, NYS " Rebuttal" does not attempt to deal with this fact.
there is no indication that New York State has considered the spe-ii cial traffic control treatments presented in the LILCO Trans t on Plan in producing the roadway capacities that appear in Appendix the New York State Without consideration of these treatments, A.
witnesses have done little more than make an " apples and oranges comparison that is not relevant to determining the reasonableness of LILCO's evacuation time estimates.
The NYS " Rebuttal" is Cumulative b.
The proffered " Rebuttal" is also cumulative of other testi-Dr. Hartgen has already offered his many already in the record.
intersec-opinion on the issue of whether roadway sections between 3786);
tions or the intersections themselves control capacity (Tr.
Supple-the subject was also addressed by Mr. Lieberman in LILCO s 3862).
mental Testimony (pp. 7-8) and in redirect examination (Tr.
New York's proffered " Rebuttal" does nothing more than restate Dr l
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It does not addrest Mr. Lieberman's Hartgen's earlier concern.
statement that a very large proportion of roadway sections control and that this statement could have been con-capacity (Tr. 3862) firmed simply by examining information that was produced during the issue of the effect of two-way discovery (see id.).
- Likewise, flow on capacities was addressed during cross-examination (Tr.
3781 (Hartgen); 3858-60 (Lieberman)).
The proffered " Rebuttal" Rather, it merely does not address Mr. Lieberman's statements.
inexcusably restates Dr. Hartgen's position and thus is, at best, It does not serve to tardy redirect testimony and not rebuttal.
advance discussion as focused through Mr. Lieberman's testicony.
The NYS " Rebuttal" is Untimely c.
Finally, New York's testimony on capacities is simply Nea York's motion does not seek to explain, inexcusably untimely.
nor is it likely it could explain, why the material that is pres-ented in Appendix A to the proffered " Rebuttal" could not have been presented at the time of the filing of New York's direct Indeed, all of the sources were testimony back in January.
readily available far in advance of the filing of that testimony.
The methodology used by KLD to compute capacities was described in detail on pages III-10 to III-33a of Appendix A to the LILCO Tran-1983 sition Plan, and on pages 21-22 of LILCO's November 18, In addition, the input streams for testimony on Contention 65.
KLD's evacuation time estimates, including the data needed to cal-culate capacities, were produced during discovery on August 24, Finally, the sources used by New York State to produce 1983.5/
1983.
Letter, Monaghan to McMurray, August 24, 5/
_10 as the New York State witnesses are its capacity estimates were, "readily available" prior to the preparation fond of pointing out, of any testimony in this case (see NYS " Rebuttal" at'8; NYS Direct New York State's failure to address its Testimony at 10-11).
capacity estimates in its January 24 testimony is inexcusable.6/
The Effect of " Side Friction" on Capacity 2.
The proffered " Rebuttal" also seeks to provide a "nonexhaus-tive" list of State roads in the EPZ with " moderate to heavy side friction" (NYS " Rebuttal" at 6).
The testimony continues by as-serting that the effect of vehicles entering from side roads could 6
and that be significant and therefore needs to be accounted for, KLD has not accounted for these vehicles (id.).
This proffered " Rebuttal" is not relevant to an issue of is cumulative of other testimony, and is decisional importance, untimely.
First, the proffered testimony, even if accurate, establishes only that " side friction" occurs along some State It never roadways under normal traffic speed and flow conditions.
attccpts to demonstrate that side friction will affect traffic Given Mr. Lieberman's flow during an evacuation, and if so how.
lhts is particularly the case with the 20-minute film 6/
containing "photolog data," now sought by New York State to be In their January 24 direct testimony introduced as " Appendix E."
at 10-11, the New York State witnesses describe means of verifying While roadway counters are referred to, roadway capacities.
Nor were they mentioned by nowhere are "photolog data" mentioned.
the State's witnesses in their February 1 deposition on this Thus reference to these data for the first January 24 testimony.
time now is not only inexcusably late but, especially given New York's assertion that they were "readily available," totally improper surprise.
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testimony that such an effect will not occur under evacuation con-ditions (see LILCO Supplemental Testimony at 12-13), New York's failure to even attempt to establish one is fatal to a relevance Thus, New York State has failed in its burden of estab-argument.
11shing the relevance of this testimony.
Second, the proffered " Rebuttal" is cumulative of other These witnesses have previously testimony already in the record.
expressed their concern that side friction may affect capacity and that KLD did not account for this effect in its evacuation time estimates (Tr. 3783-84 (Hartgen)).
In response to this testimony, Mr. Lieberman explained that side friction would have little or no
" unstable" flow expected during an evacuation effect on congested, (LILCO Supplemental Testimony at 12-13), but that nevertheless, at 13-14).
The the DYNEV model accounts for side friction (id.
proffered " Rebuttal" does not advance this discussion, but instead ignores LILC0's testimony and simply restates the New York State witneares' earlier testimony.
The only the proffered " Rebuttal" is untimely.
- Finally, "new" cuidance offered by the State is a non-exhaustive list of roadways (Appendix B) that have been identified as a result of the This roadside devel-roadside development that exists along them.
and could and should opment has obviously not occurred overnight, have been factored into New York State's direct testimony in It is The State has offered no reason why it was not.
January.
inexcusably late.
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Alleged Coarseness of Modeled Network 3.
" is the The third point addressed in the proffered " Rebuttal d l d by KLD.
The alleged " coarseness" of the roadway network mo e ethat were not testimony presents a list of examples of roadways York State included in KLD's evacuation network, but which the New tion (NYS witnesses believe residents will use during an evacua Based on this listing, the wit-
" Rebuttal" at 7-8 & Appendix C).
f travel on nesses conclude that "it is likely that the effects outer runs" these routes are not modeled correctly in KLD s comp In addition, the testimony notes that two signalized (id. at 8).
25A are not represented by nodes in the KLD intersections on Rt.
25A is rep-and that another multiple intersection on Rt.
- network, resented by a single node (id.).
has not In offering this proffered " Rebuttal," New York State its non-cumulative nature, nor its established its relevance, The proffered " Rebuttal" blithely ignores responses timeliness.
d by by Mr. Lieberman to cross-examination questions already pose t
on the inclu-counsel for the State of New York and Suffolk Coun y In response to questions s3veness of the modeled roadway network.
f 55 by counsel for New York State about whether each of a list o ity of road-roadways -- these roadways constitute the vast major
" Rebuttal" -- was ways now listed in " Appendix C" to the proffered in included in the modeled evacuation network, Mr. Lieberman, lready shown addition to pointing out errors in the list, has aincluded in the affirmatively that in an aggregate sense all were lained in modeled network (Tr. 3842).2/ Mr. Lieberman later exp Mr.
Counsel for New York State chose not to question Lieberman to Lieberman on his response and refused to permit Mr. footnote continue 2/
response to questioning by counsel for Suffolk County that "aggre-gate sense" meant that these roads were represented as a source rather than being modeled in a "disaggregate" or individual
- node, manner (Tr. 3853).
The proffered " Rebuttal" does not attempt to dispute or blunt Mr. Lieberman's testimony, and thus fails to show its relevance to either a significant open question in New York State's original testimony or to a matter of decisional impor-tance.
Rather, it merely repeats a position advanced on January 24.
The same is true with respect to the proffered " Rebuttal's" discussion of specific signalized intersections on Rt. 25A (id. at 8).
When questioned by counsel for New York State about the pres-ence of signalized intersection of route 25A, Mr. Lieberman responded by agreeing that there were traffic signals at the two specific intersections identified in New York State's rebuttal testimony (Tr. 3845-46); however, as he explained, traffic signals are not an input to the DYNEV model (id.).
The proffered " Rebut-tal" makes no attempt to rebut this explanation, but merely re-peats matters already raised and responded to in cross-examination of Mr. Lieberman.!/
footnote continued explain in more detail why the listed roadways were not explicitly included in the roadway network.
See Tr. 3841 all of these g/
Though it is not mentioned by New York State, intersections have, in fact, traffic guides at them, which helps explain why it is not necessary to afford the additional modeling treatment suggested by the proffered " Rebuttal."
(Traffic Control Post 140 is at the intersection of Route 25A and Randall Road; TCP 37 is at Route 25A and Broadway; and TCPs 50, 52 and 145 are at the multiple intersection of Routes 25A, 112 and 347.)
14-From this discussion of New York State's proffered " Rebuttal" and testimony already in the record, it is clear that New York State has failed to establish the relevance or non-cumulative nature of this testimony.
the State has again failed to demonstrate why In addition, Appendix C and the arguments contained in this portion of its proffered " Rebuttal" could not have been presented in its direct Indeed, the network that was modeled testimony back in January.
by KLD.is presented in Exhibit 1 to Appendix A to the LILCO Tran-Comparison of that network with a map of roads in sition Plan.
the EPZ would certainly indicate which roads had not been modeled Thus, New York State could easily have included explicitly.
Its attempt to Appendix C in its direct testimony six weeks ago.
New York include it now in rebuttal testimony is simply untimely.
hac not even attempted to excuse this untimeliness.
IV.
CONCLUSION New York State's proffered " Rebuttal" is not rebuttal at all, six weeks after the(fact, for but an attempt to lay a foundation, testimony which was already nine weeks untimely when filed on Nor does it come to grips with the record as focused January 24, by all of the testimony to date, specifically including the hear-r Rebuttal testimony, by its ing sessions of February 23-24.
i and is attempts to refute points advanced by another side,
- nature, properly directed to those issues brought up for the first time in It is not an excuse for l
the last round of testimony.
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ht after-the-fact foundation-laying or redirect examination t a could and should have been undertaken when timely.
New York has failed to demonstrate that its proffered " Rebut-O in tal" is relevant to issues of major importance raised by LILC or of potential decisional importance.
its supplemental testimony, Nor has New York State demonstrated how the proffered " Rebuttal, being simply a more detailed statement of New York State's wit-avoids being inherently cumulative, nesses' views on three areas, nor why this information in each case could not have been sub-mitted on January 24.
LILCO requests that the Board deny the NYS Motion to admit LILCO also requests that the Board, in the proffered " Rebuttal."
its determination, not attribute any evidentiary value to Appen-dices D and E, which were not served on the Board or the parties, nor to any representations about their contents in the proffered
" Rebuttal" or covering motion, Respectfully submitted, LONG ISLAND LIGHTING COMPANY By ~&
~\\ Donald y Ipkin Lee B. Zeugin Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATED:
March 12, 1984
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