ML20214W599
| ML20214W599 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/08/1987 |
| From: | Zeugin L HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3723 OL-5, NUDOCS 8706160096 | |
| Download: ML20214W599 (11) | |
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)N 3773 utCO, aune 8,1987 4
DOCKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 JUN 11 A10:16 Before the Atomic Safety and Licensing Board
{,
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-5
) (EP Exercise)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S REPLY TO SUFFOLK COUNTY'S MOTION TO FILE REBUTTAL TESTIMONY ON CONTENTIONS EX 15/16 On June 1,1987, Suffolk County filed a motion seeking to submit rebuttal testi-mony by Dr. Simon on Contention EX 15/16. "Suffolk County Motion for Leave to File Rebuttal Testimony," June 1,1987 (hereinaf ter "SC Motion"). The Board should deny that motion because Suffolk County has failed to establish good cause for acceptance of the testimony and because the motion is untimely.
Licensing boards have formulated a variety of tests for determining whether good cause has been demonstrated to accept late-filed rebuttal testimony. In general, those tests have focused on the relevance and significance of the proffered testimony and on its timeliness. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), Unpublished Memorandum and Order (Motion to file rebuttal testimony in the OL-3 proceeding) (February 28, 1984); Consumers Power Co. (Big Rock Point Plant),
LBP-82-8,15 NRC 299, 335-37 (1982); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-75-34,1 NRC 626, 675-76 (1975). Here, Suffolk County's proffered rebuttal testimony passes neither test.
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Suffolk County's motion contains a muddled discussion of the relevance, signifi-cance and timeliness of the proffered rebuttal testimony in an attempt to establish 4
good cause for its acceptance. Suffolk County begins by arguing that "the need for re-buttal testimony arose af ter Suffolk County's cross-examination of the LILCO Conten-tion EX 15/16 panel." SC Motion at 1.
In support, Suffolk County claims that during l
cross-examination Dr. Hockert revealed, for the first time, that the weights given to the FEMA exercise objectives in the IEAL Report " corresponded to some physical reali-ty." Id. Later, Suffolk County adds that it did not know, prior to the filing of its testi-mony on April 6, that Dr. Hockert would make use of the weighting factors in the IEAL Report to draw conclusions about whether the February 13 Exercise was a full partici-pation exercise. Id. at 2-3.
Suffolk County contends that Dr. Simon's proffered testi-i j
mony demonstrates "that Dr. Hockert's conclusions are not supportable based upon the
-methodology of Dr. Saaty which is utilized in the IEAL Report." Id. at 1-2.
- Finally, 4
Suffolk County contends that following the May 14 cross-examination of Dr. Hockert,it has diligently prepared the proffered rebuttal testimony. See SC Motion at 5-6.
These claims do not establish good cause for acceptance of the proffered testi-j mony.
First, Suffolk County is incorrect in claiming that only following cross-examination did the need for rebuttal testimony become apparent. Suffolk County as-serts, without citation to any transcript reference, that Dr. Hockert expressed the view that "the weights or values ascribed to standard FEMA objectives in the IEAL Report
[
corresponded to some physical reality." SC Motion at 1. In fact, Dr. Hockert made no such statement. The only colloquy on the subject occurs at transcript pages 6135-36.M 1/
For the Board's convenience a copy of those pages is attached to this reply as Attachment A.
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. There, Dr. Hockert explained that the Saaty methodology had previously been validated by asking a series of questions about physical processes where people's perceptions could be judged against actual physical' measurements.
Based on those studies, Dr. Hockert commented that he had "a fair degree of confidence" that the method would work in areas that did not involve physical processes such as the ranking of FEMA's exercise objectives. On this point, the proffered testimony seeks to " rebut" an issue of Suffolk County's own making and hence is not acceptable rebuttal testimony at all.
Suffolk County's next claim that it did not know that Dr. Hockert would rely on the weighting factors contained in the IEAL Report to draw conclusions about whether the February 13 Exercise was a full participation exercise (SC Motion at 2-3)is refuted by an examination of the transcript from Dr. Hockert's deposition. In the first place, as Suffolk County admits, SC Motion at 2, Dr. Hockert clearly explained at his deposi-4 tion on February.6,1987 that exercise objectives of similar weights could be interchanged in a given exercise. But Dr. Hockert went much further than Suffolk County's acknowledgement. He also explained that the testing of less important objec-tives could offset the failure to test a more important, " core" objective. Hockert Dep, at 38. Even more on point to the issues raised in Suffolk County's motion, Dr. Hockert i
explained to Mr. Lanpher on several occasions that he planned to draw judgments about whether the Shoreham Exercise was a full participation exercise based on whether a sufficiently large percentage (on a weighted basis) of objectives had been tested.
Hockert Dep. at 106-07,117-19, and 122-23. Indeed, the questions and answers quoted l
I
- e on pages 3-4 of Suffolk County's Motion certainly put Suffolk County on notice that Dr. Hockert would follow the approach about which they now claim surprise. Suffolk 4
County could have raised its concerns about that approach in its direct testimony.2/
It I
did not do so and its attempt to do so now is untimely.M Suffolk County also attempts to downplay its untimeliness by suggesting that it I
did not know the precise details of Dr. Hockert's testimony following his deposition. SC Motion at 5. While LILCO agrees that Dr. Hockert had not completed the precise cal-culations that he discussed during his cross examination of May 14, see Tr. 6148-72, this 2/
Suffolk County has anticipated arguments learned about during discovery else-where, for instance in Contention EX 21, where a section was directed at rebutting an i
argument expected to be advanced by Dr. Dennis Mileti in LILCO's direct testimony.
When LILCO did not advance the argument in question, Suffolk County withdrew that portion of its direct testimony rather than have LILCO sponsor rebuttal testimony, 3/
In footnote 1 on page 2 of its Motion, Suffolk County argues that it learned of Dr. Hockert's anticipated testimony only at the very end of the discovery period and that given the press of other work it could not consider the late designation of a new I
witness on Contentions EX 15/16. These claims are baseless. In fact, Suffolk County received the IEAL Report on January 12, 1987. By reviewing that report, Suffolk County should have gotten at least an inkling that Dr. Hockert believed that the weighting factors for given objectives could be summed for various reasons. See IEAL Report at 4-2, 4-4 and 4-5 (Attachment L to LILCO's Testimony on Contention EX 15/16).
Suffolk County's claim that it did not have time to designate another witness to rebut Dr. Hockert's views is similarly baseless. Dr. Simon had already been designated as a witness on the closely related Contention EX 21; thus Suffolk County had only to i
note that he would also be a witness on Contentions EX 15/16. Indeed, in the case of Mr. Minor, Suffolk County originally designated him as a witness on only subpart 15.I of Contention EX 15. When Suffolk County filed its testimony on Contentions EX 15/16 -
i two months af ter Dr. Hockert's deposition - it had changed the scope Mr. Minor's testi-mony so that he was then testifying on all parts of Contentions EX 15/16.
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. particular testimony is not even a subject of Dr. Simon's proffered testimony. Instead, Dr. Simon argues that methodologically the weightings of objectives contained in the IEAL Report cannot be used to substitute given objectives for others or to sum objec-tives to draw conclusions about whether a full participation exercise was conducted.
Simon Testimony at 4.
Thus, this argument is nothing more than a smoke-screen for Suffolk County's untimely filing.
A review of Dr. Simon's proffered testimony reveals that it does not " demon-strate" that Dr. Hockert has misapplied Dr. Saaty's methodology, as the motion to file claims.
See Simon Testimony at 2-4.SI Rather, it consists solely of sweeping, unexplained conclusions. Such testimony is hardly likely to be "decisionally significant in light of the record already made." Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-75-34,1 NRC 626-675 (1975). Hence, Suffolk County has failed to establish good cause for its filing.
Finally, even if the Board accepts that the rebuttal testimony could not have been anticipated until af ter cross-examination was conducted, Suffolk County has unduly delayed in offering its rebuttal testimony to LILCO's detriment and that testimo-ny should be rejected as untimely. Over 2) weeks passed since Dr. Hockert's cross-examination before Suffolk County filed, without any prior notice, what is at most 3 y
The last paragraph of Dr. Simon's proffered testimony, Simon Testimony at 4-5, i
does not even deal with the question of whether Dr. Hockert misapplied Dr. Saaty's methodology. Instead, it directly attacks Dr. Saaty's methodology arguing that it failed to make allowances for chance variations. Since Intervenors received the IEAL Report on January 12,1987, this claim is untimely.
6 pages of testimony. Given the hearing schedule that has been imposed by the Board and the fact that the Board specifically asked all parties at the May 26 hearing whether there were any matters of which it should be aware, Suffolk County's failure to inform anyone that it intended to submit this rebuttal testimony makes its current filing all the more untimely. Indeed, if the Board accepts the rebuttal testimony then LILCO may be forced to have Dr. Hockert or perhaps some other witness appear to reply to Dr. Simon's rebuttal testimony. Suffolk County's unreasonable delay should not be con-doned by the Board.
WHEREFORE, LILCO respectfully requests that the Board deny Suffolk County's motion to file rebuttal testimony on Contentions EX 15/16.
Respectfully submitted,
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96
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Donhld P. I g
Lee B. Zeu Counsel for Long Island Lighting Company 3
I i
Hunton & Williams
~
707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 y
DATED: June 8,1987 i
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ATTACHMENT A Uh11ED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO: 50-322-OL-5 (EP Exercise)
LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
LOCATION:
HAUPPAUGE, NEW YORK PAGES:
6064 - 6245 DATE:
THURSDAY, MAY 14, 1987 a
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ACE-FEDERAL REPORTERS, INC.
~W OfficialReporters 444 North CapitolStreet
'd Washington, D.C. 20001 el (202)347-3700 d
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NATIONWIDE COVERACE
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'9140 07 07 6135 cwalsh 1
Q Now, I understand the comparisons that were 2
developed in your study, Mr. Hockert --
3 JUDGE PARIS:
Excuse me, Mr. Lanpher.
Can you 4
identify the page again?
5 WITNESS HOCKERT:
The weighting factors are on 6
Page 43 of the study.
7 BY MR. LANPHER:
(Continuing) 8 O
As I understand your study, you asked a series 9
of comparative questions in order to derive the relative 10 importance of particular objectives versus each other; is 11 that correct?
12 A
(Witness Hockert)
That is correct.
13 0
Now, is it correct that from that process one 14 can discern the relative rank or order of objectives 15 according to your testimony?
16 A
Yes, sir.
17 0
And, you relied upon the sort of underlying 18 authority or methodology of a Dr. Saaty.
Is that how you 19 pronounce it?
20 A
Yes, sir.
21 O
S-a-a-t-y.
Now, does anything in Dr. Saaty's 22 work -- is it Dr. Saaty?
23 A
Yes.
24 0
-- speak to the question of whether the weights 25 themselves correspond to physical amounts?
ace FEDERAL REPORTERS, INC.
202 347 3700 Nationwide Coverage 800-336-6646
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9I40 07 07 6136 cwalsh 1
A It depends upon the problem.
Dr. Saaty has done 2
a -- and in one of the references in there, there is a 3
demonstration of circumstances in which the weights do 4
correspond to physical processes.
5 For example, he did a comparison by this method 6
of relative intensities of light at different directions 7
based on individual judgment which matches quite nicely with 8
the invert square law.
9 He did another set of comparisons of relative 10 distances among major cities which again with the hierarchal 11 structure and the judgment of individuals who had, you know, 12 travelled and were reasonably knowledgeable about geography 13 correlated quite nicely with the exact. distances.
14 So, when there is a good correlation with a 15 physical measure that can be independently measured, this 16 methodology appears to compare quite nicely.
17 0
So, you in fact need to have some pretty precise 4
18 corresponding factors in order to verify the methodology; is 19 that correct, in order to ascribe precise physical weights?
20 A
No, sir.
I believe that what it amounts to is 21 that the methodology works and gives quite precise answers 22 in those cases where there are physical cross-checks.
23 Therefore, we can have a fair degree of confidence that it 24 will work in other areas also.
25 ACE. FEDERAL REPORTERS, INC.
202 347 3700 Nationwide Coverage 800-336-6646
o LILCO, June 8,1987 q'
DCL KE TO Uwic CERTIFICATE OF SERVICE 87 JLN 11 N0:16 1
In the Matter of 0FM u
LONG ISLAND LIGHTING COMPANY 00cKE W s i m'IU (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-5 I hereby certify that copies of LILCO'S REPLY TO SUFFOLK COUNTY'S MO-TION TO FILE REBUTTAL TESTIMONY ON CONTENTIONS EX 15/16 were served th date upon the following by telecopy as indicated by an asterisk, Federal Express as indi-cated by two asterisks or by first-class mail, postage prepaid.
John H. Frye, III, Chairman
- Atomic Safety and Licensing Atomic Safety and Licensing Board Panel i
Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers 4350 East-West Hwy.
Oreste Russ Pirfo, Esq.
- Bethesda, MD 20814 Edwin J. Reis, Esq.
U.S. Nuclear Regulatory Commission Dr. Oscar H. Paris
- 7735 Old Georgetown Road i
Atomic Safety and Licensing (to mallroom)
Board Bethesda, MD 20814 U.S. Nuclear Regulatory Commission East-West Towers Herbert H. Brown, Esq.
- 4350 East-West Hwy.
Bethesda, MD 20814 Lawrence Coe Lanpher, Esq.
Karla J. Letsche, Esq.
Kirkpatrick & Lockhart Mr. Frederick J. Shon
- South Lobby - 9th Floor Atomic Safety and Licensing 1800 M Street, N.W.
Board Washington, D.C. 20036-5891 U.S. Nuclear Regulatory Commission East-West Towers, Rm. 430 Fabian G. Palomino, Esq. *
'1 4350 East-West Hwy.
Richard J. Zahnleuter, Esq.
Bethesda, MD 20814 Special Counsel to the Governor Executive Chamber Secretary of the Commission Room 229 Attention Docketing and Service State Capitol j
Section Albany, New York 12224 U.S. Nuclear Regulatory Commission i
1717 H Stmet, N.W.
Mary Gundrum, Esq.
Washington, D.C. 20555 Assistant Attorney General 120 Broadway l
Atomic Safety and Licensing Third Floor, Room 3-116 Appeal Board Panel New York, New York 10271 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
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Spence W. Perry, Esq.
- Ms. Nora Bredes William R. Cumming, Esq.
Federal Emergency Management Executive Coordinator Agency
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Shoreham Opponents' Coalition 500 C Street, S.W., Room 840 195 East Main Street Washington, D.C. 20472 Smithtown, New York 11787 Mr. Jay Dunkleberger Gerald C. Crotty, Esq.
New York State Energy Office Counsel to the Governor Agency Building 2 Executive Chamber Empire State Plaza State Capitol Albany, New York 12223 Albany, New York 12224 Stephen B. Latham, Esq. **
Martin Bradley Ashare, Esq.
l Twomey, Latham & Shea Eugene R. Kelly, Esq.
33 West Second Street Suffolk County Attorney P.O. Box 298 H. Lee Dennison Building Riverhead, New York 11901 -
Veterans Memorial Highway Hauppauge, New York 11787 Mr. Philip McIntire Federal Emergency Management Dr. Monroe Schneider Agency North Shore Committee i
26 Federal Plaza P.O. Box 231 New York, New York 10278 Wading River, NY 11792 i
Jonathan D. Feinberg, Esq.
New York State Department of Public Service, Staff Counsel Three Rockefeller Plaza Albany, New York 12223 i
& A L,~
LTed B. Ze g
Hunton & Williams 707 East Main Street j.
P.O. Box 1535 l
Richmond, Virginia 23212 1
j DATED: June 8,1987 l
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