ML20215J678

Memorandum & Order (Ruling on Lilco Motion for Leave to File Rebuttal Testimony & Intervenors Motion to Strike Portions of Rebuttal Testimony).* Lilco 870527 Motion Granted.Suffolk County & State of Ny 870605 Motion Denied.Served on 870618

ML20215J678
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	06/16/1987
From:	Margulies M Atomic Safety and Licensing Board Panel
To:	LONG ISLAND LIGHTING CO., NEW YORK, STATE OF, SUFFOLK COUNTY, NY
References
CON-#287-3811 86-529-02-OL, OL-3, NUDOCS 8706250076
Download: ML20215J678 (3)

Text

.-

! ST//

DCkEiU L UNITED STATES OF AMERICA "w-NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD '87 JUN 10 A9 :53 Before Administrative Judges: crrt- ,

00m e s . .n Morton B. Margulies, Chairman 9%v Dr. Jerry R. Kline Mr. Frederick J. Shon SERVED JUN 181987 In the' Matter of Docket No. 50-322-0L-3 (Emergency Planning)

LONG ISLAND LIGHTING COMPANY

) (ASLBPNo. 86-529-02-OL)

(Shoreham Nuclear Power Station, )

Unit 1) June 16, 1987 MEMORANDUM AND ORDER (Ruling on LILC0's Motion for Leave to File Rebuttal Testimony and Intervenors' Motion to Strike Portions of Rebuttal Testimony)

Background:

On May 27, 1987 LILCO filed a motion for leave to file rebuttal testimony by Edward B. Lieberman in response to testimony filed by New York State witnesses David T. Hartgen and Robert C. Millspsugh, Mr. Lieberman's proffered rebuttal testimony addresses the State's criticisms of Mr. Lieberman's capacity analysis contained in testimony filed subsequent to Applicant's direct testimony.

New York State and Suffolk County on June 5,1987 filed a response to Applicant's motion and a motion to strike portions of LILCO's rebuttal testimony. Intervenors do not oppose the LILCO motion except to the extent they deem Applicant to be seeking to introduce supplemental testimony in the guise of rebuttal testimony.

8706250076 870616 2 y PDR ADOCK 050 a

350

f f

fg. ,

2 A

The' disputed testimony involves a recently completed traffic

. analysis prepared by Mr.'Lieberman, designated KLD TR-201A. By a motion dated May 16, 1987, LILCO sought to substitute the KLD TR-201 analysis that'was submitted as part of Applicant's prefiled testimony. Suffolk

- County and New York State opposed the substitution claiming that Applicant was seeking a third' opportunity to perfect its case. By

' Memorandum 6 id Order of June 12, 1987, the' Board permitted Applicant to supplement its testimony by the addition of KLD TR-201A, with the

- condition'that Intervenors be permitted to conduct discovery and to file rebuttal to KLD TR-201A.

On June 4, 1987. Staff filed a response to LILC0's motion to file rebuttal testimony by Mr.- Lieberman. It supported Applicant's position.

The Staff on June 10, 1987 filed a response to Intervenors' motion to strike portions of the Lieberman rebuttal testimony. -Staff opposed Intervenors' motion on' the'same grounds it supported Applicant in its motion to substitute KLD TR-201A for KLD TR-201, i.e., the need to L .

compile a' complete record in the proceeding.

On June 12, 1987 LILC0 filed a response to Intervenors' motion to strike portions of the Lieberman testimony. It argued that the Board's order of June 12, 1987 rendered moot the subject motion of Intervenors to strike that part of the Lieberman rebuttal testimony that relies on KLD TR-201A. Applicant states that the order allows the addition of KLD TR-201A to Applicant's testimony, so that the argument of an improper attempt by LILCO to supplement its-testimony has no validity. It

' further argues that there is no rule that prohibits an expert witness from performing an analysis to support his rebuttal testimony; and even ,

O

r

?

3 if KLD TR-201A had been a brand new analysis at the time rebuttal testimony was due, it would be proper to use in rebuttal.

Board Ruling:

The Board finds, which is not disputed by the parties, that Applicant has established good cause for the submittal of rebuttal I

testimony.

As to Intervenors' motion to strike that part of the rebuttal that relies on KLD TR-201A, as being improper, it has been rendered moot ty the Board order of June 12, 1987 permitting KLD TR-201A to become part of the LILCO testimony. It legitimized the use of the KLD TR-201A analysis in the proceeding and thereby eliminated the basis for Intervenors' motion.

ORDER Based upon all of the foregoing, the Board hereby orders:

1. That Applicant's motion of May 27, 1987 to file rebuttal testimony by Edward B. Lieberman is granted. j

2. That the motion of New York State and Suffolk County of June 5, 1987, to strike portions of the rebuttal testimony, is denied.

FOR THE ATOMIC SAFETY AND LICENSING BOARD s

Morton B.'Marguliesg ChaiFman ADMINISTRATIVE LAW 4UDGE Dated at Bethesda, Maryland this 16th day of June, 1987, t

!