ML20214N129
| ML20214N129 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/27/1987 |
| From: | Miller S HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20214N132 | List: |
| References | |
| CON-#287-3538 OL-3, NUDOCS 8706020074 | |
| Download: ML20214N129 (5) | |
Text
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LILCO, May 27,1987 h
00C.KETED USNHC UNITED STATES OF AMERICA
'87 MAY 29 P4 :32 NUCLEAR REGULATORY COMMISSION 1
Before the Atomic Safety and Licensing Board
.} lnk 0
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station,
)
l Unit 1)
)
i LILCO'S MOTION FOR LEAVE TO FILE REBUTTAL TESTIMONY LILCO hereby moves for leave to file Rebuttal Testimony of Edward B.
Lieberman on the Suitability of Reception Centers. Thi.i Testimony addresses issues raised by New York State witnesses David T. Hartgen and Robert C. Millspaugh in their direct testimony and accompanying exhibits filed April 13,1987. Mr. Lieberman's testi-1 i
mony addresses the State's criticisms of Mr. Lieberman's capacity analyses; ~ Mr.
I Lieberman's criticisms of the inputs, methodologies, and results of the traffic analysis presented by the State's witnesses; and Mr. Lieberman's criticisms of the testimony by the State's witnesses concerning the sufficiency of LILCO's reception center sites. Mr.
Lieberman's testimony is clearly proper rebuttal; it responds directly to issues raised by 4
Dr. Hartgen and Mr. Millspaugh in their direct testimony and accompanying exhibits.
~
In its Order setting a schedule for the filing of rebuttal testimony, this Board recognized that it has been " apparent to everyone that there might be a need for filing
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rebuttal testimony." Memorandum and Order (Setting Schedule for Filing Rebuttal Tes-i timony) (May 14,1987), at 3. LILCO submits that the need has arisen in this instance, j
and that LILCO has good cause to file the rebuttal testimony of Mr. Lieberman, for the following reasons.
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' ' i First, the schedule for the filing of direct testimony itself suggests that Mr.
Lieberman's rebuttal testimony is appropriate. Under that schedule, LILCO filed its di-4 rect testimony on March 30, 1987. Intervenors did not file their testimony until two weeks later, on April 13, 1987. Thus, Intervenors have already had an opportunity, in J
their direct testimony, to respond to the direct testimony filed by LILCO. Fairness dic-tates, then, that LILCO be provided an opportunity to respond to the direct testimony i
i filed by the Intervenors.
i Second, LILCO could not have addressed the State's traffic analyses in direct testimony. While LILCO had the opportunity to depose Dr. Hartgen and Mr. Millspaugh, y
along with two other then-designated State witnesses, on March 3,1987, these witness-I es stated at that time that they had just begun to consider the reception center tsues, I
as the following illustrates:
MR. CHRISTMAN: Dr. Hartgen, have you any concerns or criticisms, however preliminary they might be, about the plan to use these three facilities as reception centers?
DR. HARTGEN: As I indicated earlier, we have just begun the analysis. Our preliminary concerns relate to a number of sub-jectareas. Our concerns are primarily in the form of questions i
asked. We have not answered the - answered the issues in enough detail to determine whether the concerns are warranted, but our preliminary reading relates to, as I say, concerns of a number of subjects.
Deposition of Robert C. Millspaugh, Charles E. Kilduff, David T. Hartgen, Ph.D., and 1
l William J. Acquario (March 3,1987), at 15. Furthermore, the State witnesses did not conduct their site visit until March 4,1987, the day af ter their deposition. Thus, LILCO i
was not able to learn any conclusions which the witnesses had reached about the recep-4 tion centers or to explore the results or methodologies of analyses conductcd.
Apart from the deposition, LILCO by requests for documents sought production of, among other things, the State's traffic analyses. See LILCO's First Set of Interroga-tories and Requests for Production of Documents Regarding Reception Centers to r
i i
. ~ _.
Suffolk County and New York State (January 16,1987)II and LILCO's Fourth Request I
I for Production of Documents Regarding Reception Centers Directed to New York State (March 13,1987).2/ No material relating to the State's traffic analyses was produced as a result, however.
LILCO brought this to the attention of the Board six days before the close of dis-covery. See LILCO's Motion to Compel Suffolk County and State of New York to Re-spond to LILCO's Interrogatories and Requests for Production of Documents Regarding Reception Centers (March 7,1987), at 10. Concluding that " parties on each side were in the same predicament," the Board declined to compel production at that time.
i Nonetheless, the Board recognized that rebuttal testimony might be necessary if analy =
ses were not promptly produced.
i With the discovery and hearing schedules fixed and the Board not wanting to alter them so as to delay the proceed-ing it was determined that the outstanding discoverable matters should be provided as promptly as possible and that to the extent it need be, it be introduced in the proceeding by the filing of rebuttal testimony on a showing of good cause.
Memorandum Memorializing Ruling on Motion to Compel Response to LILCO's Interrog-atories and to Produce Docuinents (March 17,1987), at 4.
i As it happened, LILdO did not receive the State's analyses and underlying data until April 13, 1987, two weeks af ter LILCO had already filed its direct testimony. Ac-i cordingly, Mr. Lieberman could not have addressed his concerns with.the inputs, f
methodologies, and results of the State's analyses in his direct testimony.
1/
Request number 8 of that document states:
Please identify and provide a copy of any document not al-
]
ready identified in response to Interrogatory 7 above on
]
i which Intervenors intend to rely in support of their position on the suitability of LILCO's Reception Centers.
I_d. at 8.
i 2/
This requested the State to supplement its answers to interrogatories and re-quests 1-8 of LILCO's First Request.
i i
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4 i 4 The State has sought leave to file rebuttal testimony on one of Mr. Lieberman's t
traffic analyses, KLD TR-201, on nearly identical grounds. See State of New York Mo-1 tion for Leave to File Rebuttal Testimony (April 16, 1987). In that case, though, the State received the traffic analysis two weeks before its testimony was due and the i
underlying data one week before. The State argued, however, that this did not permit suffielent time to fully analyze and respond to Mr. Lieberman's report in its direct tes-4 timony, thereby justifying leave to file rebuttal testimony. LILCO recognized that, de-pending on the exact testimony filed, "[t]he State may have ' good cause' to file some limited rebuttal testimony on the documents produced on April 6."
LILCO's Response i
i to State of New York Motion for Leave to File Rebuttal Testimony (April 27,1987), at 2.
Thus, whatever the merits of the State's showing of " good cause," the State and i
j LILCO would seem to be in agreement that LILCO has good cause for leave to file re-1 j
buttal testimony.
1 As LILCO indicated in its Response to the State's Motion for Leave to File Re-buttal Testimony, Mr. Lieberman could not reasonably have filed his rebuttal testimony at an earlier date. He has had several other commitments, including another NRC pro-ceeding in which he is a witness and including testimony in the Shoreham -05 proceed-ing, which have limited the amount of time available to prepare his rebuttal. Mr.
4 Lieberman has proceeded as expeditiously as possible, given the other demands on his time.
Furthermore, it is still approximately one month before the hearing is scheduled i
to begin. This provides Intervenors ample notice. See 10 CFR S 2.743(b), requiring written testimony to be served 15 days before hearing.
l a
e 1 Conclusion For the foregoing reasons, LILCO respectfully requests this Board to grant leave to file the Rebuttal Testimony of Edward B. Lieberman on the Suitability of Reception Centers.
Respectfully submitted, James N. Christman Stephen W. Miller -
l Hunton & Williams ll 707 E. Main Street P. O. Box 1535 Richmond, Virginia 23212 4
i DATED: May 27,1987 l
1
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