ML20215D621
| ML20215D621 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 06/12/1987 |
| From: | Miller S HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3774 OL-3, NUDOCS 8706190083 | |
| Download: ML20215D621 (7) | |
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LILCO, June 12,1987 DOM ETEF UHPr i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
,87 JUN 15 A11 :04 i
Before the Atomic Safety and Licensing Board err.
i B0b i
In the Matter of
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LONG ISLAND LIGHTkNG COMPANY
) Docket No. 50-322-OL-3 l
) (Emergency Planning) l (Shoreham Nuclear Power Station,
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Unit 1)
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LILCO'S RESPONSE TO NEW YORK STATE AND SUFFOLK COUNTY MOTION TO STRIKE PORTIONS OF REBUTTAL TESTIMONY On June 5,1987, the State of New York and Suffolk County filed a joint motion to strike from the May 27, 1987 rebuttal testimony of LILCO witness Edward B.
Lieberman any reference to traffic capacity analysis KLD TR-201A or to the informa-tion contained therein.II New York State and Suffolk County Response to LILCO's Mo-tion For Leave to File Rebuttal Testimony, and Motion to Strike Portions of Rebuttal Testimony (June 5,1987) (" Motion to Strike"). Intervenors' Motion to Strike is premised on its argument that KLD TR-201A is not admissible in evidence because not timely filed and that therefore Mr. Lieberman's reliance on KLD TR-201A in his rebuttal testi-many is an improper attempt to supplement LILCO's direct testimony. Intervenors' Mo-tion to Strike, however, is rendered moot by the Board's Order issued earlier today granting LILCO leave to file KLD TR-201A as an exhibit to its direct testimony.
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The certificate of service on the Intervenors' motion states that the motion was sent to LILCO's counsel by Federal Express on June 5,1987. In fact, it was sent by or-dinary mail on that date and arri'.;ed in Richmond on June 8. (Another copy was sent by Federal Express on June 8 and arrived on June 9.) Because LILCO did not receive the j
Motion to Strike until June 8 and because LILCO received the Board's order c'enying the motion to exclude KLD TR-201A at midday today and had to revise its Response, the best that can be done is to send this Response out today by Federal Express.
8706190083 870612 (D)
PDR ADOCK 05000322 C
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( Memorandum and Order (Ruling on LILCO's Motion to Substitute Written Testimony)
(June 12,1987). Accordingly, Intervenors' Motion to Strike should be denied.
I.
Background
As Attachment S to its direct testimony filed on March 30, 1987,2/ LILCO filed a copy of KLD TR-201, a capacity analysis of the highways in the vicinity of the LILCO reception centers.3I As already set out in LILCO's Motion for Leave to Substitute KLD TR-201A for KLD TR-201 as Attachment S to LILCO's Written Testimony of March 30, 1987 (May 16,1987), at 1-2 n.3, this analysis was based on Mr. Lieberman's estimates of traffic signal phasing. Actual traffic signal phasing data were in the control of the State, and despite a request by LILCO to permit KLD to record these data by the end of the discovery period,U LILCO did not receive the data until just a few days before its direct testimony was due on March 30, 1987. Thus, Mr. Lieberman was not able to in-clude the actual traffic signal phasing data in KLD TR-201.
Af ter his testimony was filed on March 30, 1987, Mr. Lieberman reviewed KLD TR-201 in light of the signal controller data that had only recently been provided by the State. Given the considerable amount of time then lef t before the hearing was sched-uled to begin, Mr. Lieberman and his associates also revised KLD TR-201. The revision, KLD TR-201A, contains corrections to the treatment of right-turn-on-red estimates of 2/
Written Testimony of Charles A. Daverio, Dale E. Donaldson, Edward B.
Lieberman, Roger E. Linneman, Michael K. Lindell, Dennis S. Mileti, and Richard J.
Watts on the Sultability of Reception Centers (March 30,1987).
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LILCO's direct testimony also contained another capacity analysis, KLD TR-192, which is Attachment M thereto. KLD TR-192 was not intended to be a complete and thorough analysis of the intersections in the vicinity of LILCO's reception centers. In-stead, it was a preliminary analysis undertaken for the purpose of assigning evacuating vehicles to reception center routes. See Rebuttal Testimony of Edward B. Lieberman on the Sultability of Reception Centers (May 27,1987), at 12.
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See LILCO's Request to inspect and Record Dial Settings on Certain Actuated Traffic Signal Controllers (March 9,1987),
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Service flow, additional turn movement data, more accurate measurements of lane widths, and additional data on background traffic in the af ternoon and evening time pe-riods.N Mr. Lieberman also altered one of the routes to the reception centers and pro-vided some additional material on traffic control.
KLD TR-201A is not a new analysis, however, but merely a more detailed version j
of KLD TR-201. The vast majority of the report is word-for-word the same as KLD TR-201. In addition, both analyses use the same basic method for collecting and analyz-ing data, the same scenarios for analyzing traffic capacity, and the same basic assump-tions. Both analyses conclude that monitoring rates at the reception centers are the controlling factor in limiting the number of people that can reach the centers in a given period of time and that the roadways in the vicinity of the reception centers can j
handle considerably more traffic than are expected by LILCO to come to those centers in the event of an evacuation of the Shoreham EPZ. More importantly, the service times at each of the reception centers remain unchanged by the revisions in KLD TR-201A. KLD TR-201A, therefore, merely represents a more detailed, more complete version of KLD TR-201.
Nonetheless, in their Motion to Strike Intervenors seek to preclude Mr.
Lieberman from relying on the most current, most complete information available to him. For the reasons set forth below, this Motion should be denied.
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LILCO counsel advised counsel for the State and County by letter of April 10, 1987, that Mr. Lieberman was making changes to KLD TR-201, including corrections to the treatment of right-turn-on-red estimation of service flow. Letter from James N.
Christman to Messrs. Zahnleuter and McMurray, April 10,1987.
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~4' II. The Board's Order of June 12,1987 Has Rendered.
Intervenors' Motion to Strike Moot The un'derlying argument in Intervenors' Motion to Strike is that KLD TR-201A
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may not be admitted into evidence because it was not timely flied. From this, Interve-nors assert that Mr. Lieberman's reliance on KLD TR-201A and on the information a
contained therein is an improper "back door" attempt by LILCO to supplement its di-rect testimony. Since LILCO is attempting to supplement its testimony, argue the In-f tervenors, the testimony is not proper rebuttal.
.This argument was rendered moot by the Board's order of earlier today, which t
strikes down the' supporting premise of Intervenors'. argument - that KLD TR-201A
'yj qt may not be entered as an exhibit in LILCO's direct case. Memorandum and Order
-(Ruling on LILCO's Motion to Substitute Written Testimony) (June 12, 1987). In that order the Board held.that it would " allow the addition of KLD TR-201A to Applicant's
- testimony," as it is not materially different from KLD TR-201 and Intervenors would not be prejudiced by its addition. Id. at 3.
Moreover, despite Intervenors' assertions to the contrary, Mr. Lieberman's rell-ance on KLD TR-201A and the information contained therein is clearly rebuttal testi-T many. It is offered specifically to rebut assertions made by the State's traffic witnesses in their direct testimony. Accordingly, Intervenors' Motion to Strike is without merit.
IIL s An Expert Witness Is Permitted to Rely _on an Analysis in Rebuttal Testimony
-Intervenors argue that Mr. Lieberman may not rely on KLD TR-201A or on the information contained therein in rebutting'the testimony of the State's traffic witness-l es. In essence, Intervenors seek to freeze at a preliminary stage the analysis of an ex-pert witness, and a witness of the party that has the burden of proof at that. This argu-ment is aimed at keeping from the Board the most current wisdom of that witness and at preventing the Board from reaching an informed decision. There is no rule that t
-5 prohibits an expert witness from performing an analysis to support his rebuttal testimo-ny. Hence, even if KLD TR-201A had been a brand new analysis at the time the rebut-tal testimony was due, it would be proper to use it in rebuttal. It is all the more proper in the present circumstances, since it was made available to the Intervenors over two weeks before their rebuttal testimony was due and 52 days before the hearing is to begin.
IV. Conclusion For the foregoing reasons, LILCO respectfully requests this Board to deny Inter-venors' Motion to Strike.
Respectfully submitted James W. Christman Stephen W. Miller Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: June 12,1987 I
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LILCO, Jun312,1987 y
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'87 JUN 15 AH :04 CERTIFICATE OF SERVICE I
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In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S RESPONSE TO NEW YORK STATE AND SUFFOLK COUNTY MOTION TO STRIKE PORTIONS OF REBUTTAL TESTIMONY were served this date upon the following by telecopier as indicated by one asterisk, by Feder-al Express as indicated by two asterisks, or by first-class mail, postage prepaid.
Morton B. Margulies, Chairman **
Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 East-West Towers, Rm. 407 4350 East-West Hwy.
Atomic Safety and Licensing Bethesda, MD 20814 Board Panel U.S. Nuclear Regulatory Commission Dr. Jerry R. Kline **
Washington, D.C. 20555 Atomic Safety and Licensing Board Richard G. Bachmann, Esq. **
U.S. Nuclear Regulatory Commission George E. Johnson. Esq.
East-West Towers, Rm. 427 U.S. Nuclear Regtuatory Commission 4350 East-West Hwy.
7735 Old Georgetown Road Bethesda, MD 20814 (to mallroom)
Bethesda, MD 20814 Mr. Frederick J. Shon **
Atomic Safety and Licensing Herbert H. Brown, Esq. **
Board Lawrence Coe Lanpher, Esq.
U.S. Nuclear Regulatory Commission Karla J. Letsche, Esq.
East-West Towers, Rm. 430 Kirkpatrick & Lockhart 4350 East-West Hwy.
South Lobby - 9th Floor Bethesda, MD 20814 1800 M Street, N.W.
Washington, D.C. 20036-5891 Secretary of the Commission Attention Docketing and Service Fabian G. Palomino, Esq. **
Section Richard J. Zahnleuter, Esq.
U.S. Nuclear Regulatory Commission Special Counsel to the Governor 1717 H Street, N.W.
Executive Chamber j
Washington, D.C. 20555 Room 229 i
State Capitol l
Albany, New York 12224
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Mary Gundrum, Esq.
Jonathan D. Feinberg, Esq.
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Assistant Attorney General New York State Department of i
120 Broadway Public Service, Staff Counsel Third Floor, Room 3-116 Three Rockefeller Plaza 1
New York, New York 10271 Albany, New York 12223 Spence W. Perry, Esq. **
Ms. Nora Bredes William R. Cumming, Esq.
Executive Coordinator Federal Emergency Management Shoreham Opponents' Coalition I
Agency 195 East Main Street 500 C Street, S.W., Room 840 Smithtown, New York 11787 Washington, D.C. 20472 Gerald C. Crotty, Esq.
Mr. Jay Dunkleberger Counsel to the Governor New York State Energy Office Executive Chamber Agency Building 2 State Capitol Empire State Plaza Albany, New Yo:'k 12224 Albany, New York 12223 Martin Bradley Ashare, Esq. **
Stephen B. Latham, Esq. **
Eugene R. Kelly, Esq.
Twomey, Latham & Shea Suffolk County Attorney 33 West Second Street H. Lee Dennison Building P.O. Box 298 Veterans Memorial Highway Riverhead, New York 11901 Hauppauge, New York 11787 Mr. Philip McIntire Dr. Monroe Schneider Federal Emergency Management North Shore Committee Agency P.O. Box 231 26 Federal Plaza Wading River, NY 11792 New York, New York 10278 4
, _ tYd7EAA W
/ ames N. Christman
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Stephen W. Miller Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: June 12,1987
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