ML20214N118
| ML20214N118 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/26/1987 |
| From: | Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3541 OL-3, NUDOCS 8706020070 | |
| Download: ML20214N118 (15) | |
Text
.-
w 3
00LKEiEP mao 9E$, 1987 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFILt u E '. : %" :
00CKETmc 4 '2UWif I.
Before the Atomic Safety and Licensina BoppgNCH
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power
)
Station, Unit 1)
)
)
SUFFOLK COUNTY AND STATE OF NEW YORK OPPOSITION TO LILCO MOTION FOR LEAVE TO SUBSTITUTE KLD TR-201A FOR KLD TR-201 On May 16, 1987, LILCO filed a Motion For Leave to Substitute KLD TR-201A for KLD TR-201 as Attachment "S" to LILCO's Written Testimony of March 30, 1987 (" Motion").
For the reasons set forth below, Suffolk County and the State of New York (the " Governments") urge this Board to deny LILCO's Motion.
BACKGROUND During the summer of 1986, LILCO's consultant on traffic matters, KLD Associates, commenced a study of the capacities of the evacuation routes leading to LILCO's three newly proposed reception centers in Nassau County.
Lieberman Deposition, February 24, 1987 ("Lieberman Dep.") at 7.
The study included field surveys, traffic counts, and calculations of intersection
~
8706020070 G70526 PDR ADOCK 05000322 350j) o eDR
capacity purportedly using methodology set forth in the Hiahway Capacity Manual ("HCM").
The result of that study was a report issued on September 26, 1986, entitled " Capacity Analysis of Highways in the Vicinity of Reception Centers for Evacuees From Within the Shoreham Station Emergency Planning Zone."
The report, which will be referred to hereafter by its document number, "KLD TR-192," concludes that except in " extreme" cases, the routes leading to LILCO's reception centers can accommodate the number of evacuating vehicles expected to attempt to reach those reception centers.
On January 14, 1987, this Board, having previously reopened the record to review the adequacy of LILCO's new reception centers, established a schedule to govern this proceeding.1/
Discovery commenced immediately.
Pursuant to certain Government interrogatories and document requests, LILCO provided the Governments with KLD TR-192 and the hundreds of pages of data underlying that analysis.
Upon receiving KLD TR-192 and its underlying data, experts from the State's Department of Transportation spent a great deal of time analyzing and reviewing those documents.
On February 24, 1987, counsel for Suffolk County took the deposition of Edward Lieberman, a Vice President of KLD and LILCO's expert witness on traffic issues.
At his deposition, Mr.
1/
Order (Setting Discovery and Hearing Schedule) (Jan. 14, 1987).
Lieberman expressed some dissatisfaction with the analysis reflected in KLD TR-192 and stated that he intended to conduct a further analysis.
Lieberman Dep. at 4-6, 30-34, 95-96.
Following the deposition, counsel for Suffolk County requested that LILCO produce any further analyses conducted by Mr.
Lieberman.
LILCO responded that it was unlikely that Mr.
Lieberman's analysis would be completed much before the filing date for LILCO's Direct Testimony (March 30, 1987).
Indeed, LILCO provided no further analysis to the Governments until March 30, 1987, when LILCO filed its Direct Testimony on the reception center issues.
That testimony con-
.tained not only KLD TR-192,2/ but also a new analysis, entitled
" Capacity Analysis On Approach Routes To the SNPS Reception Centers," which will be referred to hereafter by its document i
number, "KLD TR-201.n3/
Because.the Governments had been afforded no discovery regarding KLD TR-201, LILCO was requested on April 2, 1987 to provide all of the underlying data pertaining to the analysis.
Those data, consisting of over 1,000 pages and covering many different intersections, were received by counsel on April 6, 1987, and were provided to the State's experts on April 7, 1987, 2/
KLD TR-192 is Attachment "M"
to LILCO's Direct Testimony.
3/
KLD TR-201 is Attachment "S" to LILCO's Direct Testimony. J
=
s Once again, the State's experts were required to spend long
~ hours reviewing and analyzing LILCO's new analysis.
That review
' revealed that KLD TR-201 was substantially different from KLD
'TR-192 in-that KLD TR-201 was more detailed, was. based on differ-ent assumptions, and was derived from computer-based calculations (KLD TR-192 was derived from hand calculations).1/
i LILCO -- apparently still not satisfied with its analysis of route capacities -- now wants a third bite at'the apple.
Accordingly, it seeks leave to substitute KLD TR-201& for KLD TR-201.
Counsel for the Governments learned of this new analysis for the first time on May 8.
As LILCO describes it, KLD TR-201A-contains "certain refinements and some additional data regarding
' background traffic and highway capacity not included in the orig-inal because of time constraints."
Motion at 1.
LILCO also states that the analysis contains a more " refined" capacity anal-ysis-as a result of data regarding actuated traffic signal con-trollers provided by the State shortly before LILCO's testimony was due.
Id.
?
I The Governments' review of KLD TR-201A reveals that LILCO has understated the scope of KLD's revisions.
In fact, KLD TR-201A is a substantial revision of its prior analysis with new in-f l
i/'
KLD TR-201 is focused primarily on an evaluation of the ability of the routes to the evacuation centers to accommodate i
traffic demand consisting of 30% of the EPZ and 100% of normal
{
background traffic.
The study concludes that the roadways can F
handle this demand.
1
/ i
puts and wholly revised tables (compare Table 3-6 of KLD TR-201 to the same table in KLD TR-201A), new text regarding new topics, new charts (see Figures 3-4 and 3-5) and hundreds of pages of new underlying data which will take substantial time to analyze properly.
The bases and origins of its revisions, however, are left virtually unexplained, thus making adequate analysis difficult, if not impossible.5/
LILCO's Motion, in effect, seeks to supplement LILCO's Direct Testimony by introducing, in the guise of a
" substitution," new data, new analyses and new calculations to support Mr. Lieberman's original testimony.
To do this, LILCO is required to demonstrate good cause for its late filing.
LILCO's Motion, however, does not even recognize this standard, much less attempt to explain why it meets the standard.
Rather, the Motion states merely that KLD's revised analysis should be accepted because:
(1) the methodology and conclusions of KLD TR-201A are not different from KLD TR-201; and (2) because the reception center hearing is not expected to commence for another month.
Motion at 2.
On this basis, LILCO claims that the " substitution" it proposes presents no prejudice to the Governments.
5/
The State has not been able to commence this analysis in detail because the State's primary expert witness, Dr. David T.
Hartgen, left for a two-week vacation on the very day that LILCO provided its revised report, without prior notice, to the Governments. -
On the contrary, the Governments will be prejudiced if KLD TR-201A is admitted into the record.
LILCO has had ample oppor-tunity to conduct analyses of the routes leading to the reception centers.
It commenced its analysis in the middle of 1986, and conducted a further analysis during the discovery period.
Indeed, LILCO has had far more time to analyze the specific routes and intersections leading to the reception centers than the Governments have had.
LILCO should not now be granted the opportunity to supplement its analyses even further, so long after its Direct Testimony has been filed.
The Governments will be prejudiced by LILCO's proposed substitution because they will once again be required to devote substantial time and resources to analyze yet another study which LILCO has filed late.
With the hearing of this matter only a month away, the Governments have other matters to attend to in preparation for the hearing.
Furthermore, it is simply unfair to let a party
" substitute" one analysis for another -- out of time and without attempting to show good cause for late filing -- when the other parties have adhered to the filing deadlines established by this Board and not sought the unilateral advantage LILCO now seeks.
Accordingly, LILCO's Motion should be denied. - - -
DISCUSSION A.
LILCO Has Not Demonstrated Good Cause For Filina Sucolemental Testimony A party seeking to file supplemental testimony must demon-strate good cause for filing such testimony out of time.
Ett Memorandum and Order Regarding Motion for Change in Schedule, Request for Conference Call, and Motion to Compel Discovery (Nov. 14, 1983) (interpreting late filing requirements of 10 C.F.R. S 2.743(b)).
LILCO, however, has not demonstrated or even discussed why good cause exists in this instance.
Accordingly, its Motion must be denied.
One of the key elements in determining good cause is a show-ing that the testimony could not have been submitted earlier --
in this case with LILCO's Direct Testimony.
LILCO offers i
virtually no justification for its late filing other than noting unspecified " time constraints."
Motion at 1.
However, a bald assertion of " time constraints" does not justify the late filing of LILCO's new analysis.
All parties in this proceeding have been operating under time constraints.
The Board has set a fast schedule which all parties have been expected to adhere to.
Indeed, with respect to the traffic issues, time constraints have operated most severely against the State's witnesses who did not receive KLD TR-192 4 -
W
{
until four-and-one-half months after it was completed and did not receive KLD TR-201 until LILCO filed its Direct Testimony.
In contrast to the several months in which LILCO has had the i
opportunity to conduct and refine its analysis, the State's l
witriesses had only approximately two months to complete their analyses.
LILCO's pleas of " time constraints" are especially hollow in light of the fact that KLD TR-192 was issued in September of 1986, but Mr. Lieberman did not begin his re-analysis of the issue until after his deposition in late February of 1987.
No reasons are offered for his delay or why the re-analysis of KLD TR-192 could not have been commenced earlier so 4
j that KLD TR-201 could have contained all of the refinements and
{
revisions which Mr. Lieberman deemed necessary when LILCO's Direct Testimony was filed.
The only concrete reason given by LILCO to justify its " time constraints" is that it did not receive certain signal timing data f ro.n the State until five days before LILCO's testimony was due.
Motion at 1 and n.3.
LILCO, however, glosses over certain facts which undercut its argument.
First, LILCO did not ask for the signal timing data until March 9 -- the last week of digeovery.
1d.
It received the data 16 days later -- a reasonable amount of time given the quantity of data requested.
Indeed, under the NRC's discovery rules the State was not obligated to provide the data until 30 days later.
2.741(d).
The signal timing data could have been requested as 1
1 -
early as the summer of 1986, or at the beginning of discovery in January.
LILCO, however, chose to wait until the last minute.
It should not now complain about the consequences of its own 7
delay.
Second, the new signal timing data provide the basis for only part of the many revisions to KLD TR-201A.
LILCO offers no justification for its late filing as to the other new aspects of its analysis.5/
In light of LILCO's utter failure to explain why the late filing of its additional analysis is justified, LILCO's Motion must be denied.
5/
The other aspects of its analysis which do not deal with signal timing include:
1.
Refinements to the prior capacity analysis which were based on additional data taken in the field.
2.
Route ID was altered to separate evacuees in autos from those in buses, thus benefitting the operational performance of both traffic streams.
3.
Additional discussion on the subject of traffic Control.
KLD TR-201A at 5.
In addition, there are many other revisions reflected in KLD TR-201A which are unexplained and do not appear to deal with signal timing data..
f.
l B.
The Governments Will Be Prejudiced By the " Substitution" LILCO Proposes Contrary to LILCO's claims, the Governments will be preju-diced if LILCO's Motion is granted.
The Governments have already spent substantial time reviewing KLD's two prior analyses.
In particular, the State's witnesses have reviewed not only the KLD reports, but also thousands of pages of underlying data.
LILCO now proposes that the Governments be forced to undertake this exercise yet again.
This is unfair and wasteful.
LILCO cannot unilaterally revise its analyses at will after the Board's estab-lished filing deadline.
To permit LILCO to do so would cause 1
hardship to the Governments, which will be required to devote their limited resources once again to review and analyze LILCO's latest efforts to buttress its position.
Furthermore, if KLD TR-201A is admitted, it appears that further discovery will be necessary, including depositions, in order to understand TR-201A sufficiently to conduct effective cross-examination.
This is because the revisions, especially the new input data, are not adequately explained in any of the documents provided to the Governments.
In addition, the State's experts may need to file additional rebuttal testimony to address LILCO's now analysis.1/
However, there is no more time for such 1/
The fact that the State will be offering rebuttal testimony on KLD TR-201 does not justify LILCO's attempt to supplement its testimony.
LILCO, too, has given notice that it intends to submit its own rebuttal testimony of the State's traffic testimony.
Rebuttal testimony is an entirely different matter (footnote continued) -
activities.
The Governments have other matters to attend to in preparing for this trial, which is only a month away, and in handling the ongoing Exercise litigation.
The Governments would be severely prejudiced if they were now required to devote additional time and resources to analyzing LILCO's late-filed analysis.
The Governments would also be prejudiced because they have had to contend with time constraints and thus, in some instances, have been required to restrict their analyses of KLD studies.
The State's witnesses would have benefitted from additional time to conduct their analyses; however, they lived by the rules.
LILCO must be required to do so as well.8/
LILCO's late attempt to introduce new data to bolster its witnesses' conclusions is improper, especially here where no justifiable reason for doing so is given.
Thus, LILCO's Motion should be denied.
(footnote continued from previous page) from supplemental testimony in that it addresses the testimony of the other party.
Supplemental testimony, on the other hand, is new direct testimony.
In LILCO's case, its new testimony could and should have been filed earlier.
8/
The Governments have had to deal in the past with the concept that a plan is a " moving target."
Moving testimony, however, is an entirely different matter and should not be condoned. -
CONCLUSION For the foregoing reasons, LILCO's Motion should be denied.
Respectfully submittec Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 CfTr15topher/. McMurray M
KIRKPATRICK & LOCKHART 1800 "M" Street, N. W.
South Lobby - Ninth Floor Washington, D. C.
20036-5891 Attorneys for Suffolk County b
- y 7
A, Richard J. Zahnledter Deputy Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 i
Capitol Building Albany, New York 12224 Attorneys for Governor Mario M.
Cueno and the State of New York i
Eay 26.__1987 r
I i f b
DCur Tt ?
MaVH26, 1987 UNITED STATES OF AMERICA
'87 MAY 29 P4 :09 NUCLEAR REGULATORY COMMISSION OFF!! -
Before the Atomic Safety and Licensih6C@ddrd,!i< tif f.
u... :p
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3,
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the SUFFOLK COUNTY AND STATE OF NEW YORK OPPOSITION TO LILCO MOTION FOR LEAVE TO SUBSTITUTE KLD TR-201A FOR KLD TR-201 have been served on the following this 26th day of May, 1987 by United States mail, first class, except as otherwise noted.
Morton B. Margulies, Faq., Chairman
- Joel Blau, Esq.
Atomic Safety and Licensing Board Director, Utility Intervention U.S. Nuclear Regulatofy Commission N.Y. Consumer Protection Board Washington, D.C.
20555 Suite Number 1020 Albany, New York 12210 Dr. Jerry R. Kline*
William R. Cumming, Ecq.**
Atomic Safety and Licensing Board Spence W. Perry, Esq.
U.S. Nuclear Regulatory Commission Office of General Councel Washington, D.C.
20555 Federal Emergency Management Agenc-500 "C" Street, S.W.
Room Number 840 Washington, D.C.
20472
Mr. Frederick J. Shon*
Anthony F. Earley, Jr., Esq.
Atomic Safety and Licensing Board General Counsel U.S. Nuclear Reculatory Commission Long Island Lighting Company Washington, D.C.
20555 175 East Old Country Road Hicksville, New York 11801 Ms. Elisabeth Taibbi W. Taylor Reveley, III, Esq.**
Clerk Hunton and Williams Suffolk County Legislature Post Office Box 1535 Suffolk County Legislature 707 East Main Street Office Building Richmond, Virginia 23212 Veterans Memorial Highway Hauppauge, New York 11788 Mr, L. F. Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York 11901 Wading River, New York 11792 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, Third Floor H. Lee Dennisor. Building Room Number 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 MHB Technical Associates Dr. Monroe Schneider 1723 Hamilton Avenue North Shore Comnittee Suite "K" Post Office Box 231 San Jose, California 95125 Wadirg River, New York 11792 Martin Bradley Ashare, Esq.
Fabian C. Palomino, Esq.
Suffolk County Attorney Richard J. Zahnleuter, Esq.**
Bldg. 158, North County Complex Special Counsel to the Veterans Memorial Highway Governor of the State Hauppauge, New York 11788 of New York Executive Chamber, Koom 229 Capitol Building Albany, New York 12224 Mr. Jay Dunkleburger Richard G. Bachmann, Esq.**
New York State Energy Office U.S. Nuclear Regulatory Comm.
Agency Building Two Washington, D. C.
20555 Empire State Plaza Albany, New York 12223.
David A. Brownlee, Esq.
Mr. Stuart Diamond Kirkpatrick and Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 West 43rd Street New York, New York 10036 Douglas J. Hynes, Cottncilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771
$h
/
4 r 1stopbdr
,4. 3cMu~r ray'
~
KIRKPATRICK & LOCKHART 1800 "M" Street, N. W.
South Lobby - Ninth Floor Washington, D. C.
20036-5891
- Via Hand Delivery
- Via Federal Express May 26. 1987- - -
.