ML20214T174

State of Ny & Suffolk County Response to Lilco Motion for Leave to File Rebuttal Testimony & Motion to Strike Portions of Rebuttal Testimony.* Portions of Lilco 870527 Testimony Re Kld TR-201A Should Be Stricken.Certificate of Svc Encl

ML20214T174
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/05/1987
From:	Mcmurray C, Zahnleuter R KIRKPATRICK & LOCKHART, NEW YORK, STATE OF, SUFFOLK COUNTY, NY
To:	Atomic Safety and Licensing Board Panel
References
CON-#287-3693 OL-3, NUDOCS 8706100151
Download: ML20214T174 (9)

Text

'3d M June 5, TISrU 1D 87" UNITED STATES OF AMERICA g7 JhN -8 P4;jj NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino BoardvuLet

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)

In the Matter cf )

)

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

) (Emergency Planning)

(Shoreham Nuclear Power )

Station, Unit 1) )

)

)

NEW YORK STATE AND SUFFOLK COUNTY RESPONSE TO LILCO'S MOTION FOR LEAVE TO FILE REBUTTAL TESTIMONY, AND MOTION TO STRIKE PORTIONS OF REBUTTAL TESTIMONY On May 27, 1987, LILCO filed a Motion for Leave to File Rebuttal Testimony (" Motion"). Attached to the Motion was pro-posed rebuttal testimony sponsored by LILCO's witness, Edward B.

Lieberman, pertaining to certain traffic issues. The State of New York and Suffolk County (the " Governments") oppose LILCO's Motion to the extent that it seeks to introduce sucolemental testimony in the guise of rebuttal testimony. Those portions of LILCO's rebuttal testimony should be stricken as improper. With those deletions, the Governments do not oppose LILCO's Motion.

DISCUSSION LILCO has submitted 43 pages of proposed testimony by Mr. Lieberman -- 5 times as much as Mr. Lieberman's direct testi-many -- which purports to rebut the testimony of the State's O

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traffic experts, Dr. Hartgen and Mr. Millspaugh. The Governments' review of the proposed rebuttal testimony reveals that it draws incorrect conclusions based on what appears to be a total lack of understanding, or inadequate review, of the State witnesses' analyses. Time and again the rebuttal testimony makes gros. sly inaccurate characterizations of the State's testimony and misinterprets data. These fundamental errors, however, may be addressed at trial or through further testimony, and thus do not form the basis for this Response. The Governments' review fur- ,

ther reveals, however, that in many instances LILCO is attempting to introduce new evidence which is not rebuttal at all, but which is actually untimely suoolemental testimony intended to expand upon LILCO's limited direct testimony.

Specifically, the Governments object to those portions of LILCO's testimony which rely on a very recently completed anal-ysis conducted by Mr. Lieberman, known as KLD TR-201A. This document was the subject of LILCO's May 16 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 Leave").

As the Governments argued in their Opposition to the Motion for Leavel/ LILCO cannot properly supplement its direct testimony with KLD TR-201A because LILCO did not demonstrate, or even 1/ Suffolk County and State of New York Opposition to LILCO Motion for Leave to Substitute KLD TR-201A for KLD TR-20 (May 26, 1987) (" Opposition").

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attempt to demonstrate, good cause for its failure to submit the new analysis earlier. The Governments will not reargue that point'here, but incorporate their Opposition by reference.

4 Having failed to demonstrate good cause for supplementing its direct testimony with KLD TR-201A, LILCO cannot now do so indirectly by basing portions of its rebuttal testimony on KLD

TR-201A. This "back door" attempt to supplement LILCO's direct 4

testimony is improper. LILCO cannot be permitted to rely on or submit analyses that it should have included in its direct ,

testimony. Indeed, for the reasons. stated in their Opposition, ,.

the Governments will be prejudiced if KLD_TR-201A is admitted at i this late date.

Accordingly, the following passages which cite or rely upon KLD TR-201A should be stricken from LILCO's proposed rebuttal i

testimony:

1. Page 5, in the first full paragraph, begin-

^

ning on line 5, from the words "KLD TR-201A" to the end of the paragraph.

I 2. Page 6, in the second paragraph of the Answer to Question 6, beginning on the second line, from the word "Accordingly" to the end of the paragraph. i

3. Page 7, the first full paragraph in its i

entirety. This paragraph appears to rely on KLD TR-201A although it does not cite that analysis specifically.

4. Page 7, in the last paragraph, beginning on line 5, from the word "Since" through the l citation to KLD TR-201A.

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5. Page 8, in the first paragraph of the Answer to Question 8, in line 9 the words "and KLD TR-201A."

6. Page 9, in the'first paragraph of the Answer to Question 9, beginning on line 8 from the words "In KLD TR-201A" to the end of the paragraph.

7. Page 12,-in the sixth line from the top, the words "and KLD TR-201A."

8. Page 12, in the first full paragraph, the entire last sentence. This sentence appears to make reference to and rely upon KLD TR-201A.

9. Page 12, in the first paragraph of the Answer to Question 14: in the first and second lines, the words "and KLD TR-201A;" in the fourth and fifth lines, the sentence begin-ning with "Indeed" and ending with "12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />."

10. Page 13, in the second line of the Answer to Question 15, the words "Both" and "KLD TR-201A." In the eighth line, the words "In the two KLD reports" (substitute "In KLD TR-201,"). In the last line, the word " reports" should be changed to " report."

11. Page 13, in the first paragraph of the Answer to Question 16, the last three sentences beginning with the words "The actual delay" and ending with the words "in KLD TR-201A."

12. Pages 14-15, in the second paragraph of the Answer to Question 17, beginning on line 7, the sentences beginning with the words "In completing the work" and ending with the words "are expected in an evacuation." In the fourth line on page 15, the words "and TR-201A."

13. Page 15, in the third line of the first para-graph of the Answer to Question 18, the words "and KLD TR-201A."

14. Page 17, the first full paragraph in its-entirety.

15. Page 20, the second paragraph of the Answer to Question 24 in its entirety.

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16. Pages 25-26, beginning on the last line of page 25 from the words "We can handle" to the words "at 26-27."

17. Page 37, the entire Answer to Question 37.

The analyses referenced appear to pertain to' KLD TR-201A.

18. Page 38, the last two sentences beginning with the words "Thus, the service rate" and ending with the citation to "KLD TR-201A at 26."

19. Page 39, the last sentence in the Answer to Question 41. While KLD TR-201A is not cited, i it appears to be the actual source for this statement.

20. Page 41, in the first line, the words "As indicated in Table 2-1 of KLD TR-201A."

21. Page 42, the Answer to Question 44 in its entirety. While KLD TR-201A is not cited as the source, it in fact appears to be the source for this statement.

22. Page 42, in the first paragraph of the Answer to Question 46, the second sentence beginning with the words "In KLD TR-201A" through the words " exceeded there."

If other portions of the proposed rebuttal testimony are later determined to rely on KLD TR-201A, the Governments reserve the right to move to strike those passages as well.

CONCLUSION For the foregoing reasons, those portions of LILCO's pro-posed rebuttal testimony relying on or citing to KLD TR-201A should be stricken. With those portions of LILCO's proposed rebuttal testimony stricken, the Governments do not oppose LILCO's Motion.

Respectfully submitted, Richard J. ter Deputy Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albauf, New York 12224 Attorney for Governor Mario M.

Cuomo and the State of New York Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 v e ,& -

c Christopher M. McMurray KIRKPATRICK & LOCKHART 1800 "M" Street, N. W.

South Lobby - Ninth Floor Washington, D. C. 20036-5891 Attorney for Suffolk County June 5, 1987 o

COL E TE uvmr

\

June 5, 1987-

'87 JWi -8 P4 :11 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,

Before the Atomic Safety andLicensinoBoaYh$Ng!"'b

)

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 NEW YORK STATE AND SUFFOLK COUNTY RESPONSE TO LILCO'S MOTION FOR LEAVE TO FILE REBUTTAL TESTIMONY AND MOTION TO STRIKE PORTIONS OF REBUTTAL TESTIMONY have been served on the following this 5th day of June, 1987 by United States mail, first class, except as otherwise noted.

Morton B. Margulies, Esq., Chairman

• Joel Blau, Esq.

Atomic Safety and Licensing Board Director, Utility Intervention U.S. Nuclear Regulatory Commission N.Y. Consumer Protection Board Washington, D.C. 20555 Suite 1020 Albany, New York 12210 Dr. Jerry R. Kline* 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

( ct; Mr. Frederick J. Shon* Anthony F. Earley, Jr., Esq.

Atomic Safety and Licensing Board General Counsel U.S. Nuclear Regulatory 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 Ea:st Main Street Office Building Richmoad, 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 Dennison 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 Committee Suite "K" Post Office Box 231 San Jose, California 95125 Wading River, New York 11792 Martin Bradley Ashare, Esq. Lawrence C. Lanpher, Esq.*

Suffolk County Attorney Christopher M. McMurray, Esq.

Bldg. 158, North County Complex David T. Case, Esq.

Veterans Memorial Highway Kirkpatrick & Lockhart Hauppauge,'New York 11788 1800 "M" Street, N. W.

Ninth Floor - South Lobby Washington, D. C. 20036-5891 Mr. Jay Dunkleburger Richard G. Bachmann, Esq.*

New York State Energy Office U.S. Nuclear Regulatory Comm.

Agency Building 2 Washington, D. C. 20555 Empire State Plaza Albany, New York 12223

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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, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771 Richard J. uter, Esq.

Deputy Special Counsel to the Governor of the State of New York Executive Chamber, Room 229 Capitol Building Albany, New York 12224

• Via Hand Delivery

• • Via Federal Express June 5, 1987 t

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