ML20235Y850
| ML20235Y850 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/17/1987 |
| From: | Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20235Y845 | List: |
| References | |
| OL-3, NUDOCS 8707270078 | |
| Download: ML20235Y850 (5) | |
Text
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4 LILCO, July 17,1987 OW iU LT<
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 JJL 20 NO.57 c r:
OGv Before the Atomic Safety and Licensing Board In the Matter of
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LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
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LILCO MOTION FOR LEAVE TO FILE SURREBUTTAL TESTIMONY OF EDWARD B. LIEBERMAN ON THE SUITABILITY OF RECEPTION CENTERS AND LILCO RESPONSE TO STATE OF NEW YORK MOTION FOR LEAVE TO FILE RESPONSE TO REBUTTAL TESTIMONY OF EDWARD B. LIEBERMAN The State of New York has filed two sets of rebuttal testimony in this case on the traffic analyses prepared by LILCO witness Edward B. Lieberman.I In the first set, filed on May 27, 1987,2/ State witnesses David T. Hartgen and Robert C. Millspaugh present their opinions on KLD traffic analysis TR-201, which is appended to LILCO's di-rect testimony / as Attachment S. The second set was filed one week ago, on July 10, 3
1987.M n Part II of that testimony, the State's traffic witnesses present their opinions I
1/
The State has had another opportunity at rebuttal as well. Under the schedule set in this case, LILCO's direct testimony was due on March 30,1987. The State's di-I rect testimony was not due until two weeks later, on April 13, 1987. The State took ad-vantage of this opportunity to include rebuttal on the two KLD traffic analyses filed on March 30 - TR-192 and TR-201 -in its direct testimony.
2/
Rebuttal Testimony of David T. Hartgen and Robert C. Millspaugh on Behalf of the State of New York Concerning KLD TR-201(May 27,1987).
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Direct Testimony of Douglas M. Crocker, Dale E. Donaldson, Diane P. Dreikorn, Edward B. Lieberman, Michael K. Lindell, Roger E. Linnemann, Dennis S. Mileti, and Richard J. Watts on the Suitability of Reception Centers (March 31,1987) ("LILCO's di-rect testimony").
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Rebuttal Testimony of David T. Hartgen and Robert C. Millspaugh on Behalf of the State of New York Concerning KLD TR-201A and LILCO's Rebuttal Testimony of May 27,1987 (July 10,1987).
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on KLD traffic analysis TR-201A, which is appended to LILCO's direct testimony as At-tachment T. In Part III of that testimony, Messrs. Hartgen and Millspaugh present sur-rebuttal testimony on Mr. Lieberman's rebuttal testimony of May 27,1987.E By order of June 12, 1987, the Board granted the State leave to file Part II. Memorandum and Order (Ruling on LILCO's Motion to Substitute Written Testimony)(June 12,1987), at 4.
The State seeks leave to file Part III in a motion filed with the July 10 testimony. State of New York Motion for Leave to File Response to Rebuttal Testimony of Edward B.
Lieberman (July 10, 1987).
LILCO hereby moves for leave to permit Mr. Lieberman to respond to the opin-l lons of his work by Messrs. Hartgen and Millspaugh in their May 27 rebuttal testimony l
and in Part II of their July 10 testimony. Assuming the Board grants this motion, LILCO l
does not oppose the State's July 10 motion to present surrebuttal testimony of its own, inasmuch as both parties have presented virtually identical cases for leave to file their surrebuttal.E Should the Board deny LILCO's motion, however, LILCO would oppose the State's motion and would move to strike the surrebuttal of Messrs. Hartgen and Millspaugh found in Part III of their July 10 testimony.2/
1/
Rebuttal Testimony of Edward B. Lieberman on the Suitability of Reception Cen-ters (May 27,1987).
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In the normal course, LILCO's response to the State's motion would be due on July 20. On July 15, however, the State requested and the Board granted expedited treatment of the motion. In accordance with the Board's ruling, LILCO hereby responds to the State's motion. Because the State's rebuttal testimony was received by LILCO less than a week ago, however, LILCO has not yet completed its surrebuttal testimony.
It will be filed on Monday, July 20,1987.
1/
By separate motion filed today, LILCO moves to strike a portion of Part II of the l
State's July 10 testimony. LILCO supports that motion regardless of how the issues l
raised in the present motion are resolved.
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I. LILCO Has Good Cause to Present Surrebuttal Testimony of Edward B. Lieberman In both sets of its rebuttal testimony, the State has accused Mr. Lieberman of-making fundamental errors in analyzing the routes leading to the reception centers.
Mr. Lieberman has not yet had an opportunity to respond to those allegations. - Thus, the Board has before it only one side, the State's side, of the dispute over the validity of Mr. Lieberman's analyses. Mr. Lieberman, however, strongly disagrees with the State's characterizations of his work. He stands by his work and is ready to explain the errors the State has made in reviewing that work. The Board may not be able fully to evaluate Mr. Lieberman's analyses, then, without hearing Mr. Lieberman's response. Thus, to en-sure a complete' record on which to make a fully informed decision, the Board should permit LILCO leave to file surrebuttal testimony by Mr. Lieberman. This is particularly important in this instance, since LILCO bears the burden of proof. Simple fairness dic-tates that the party with the burden of proof should be permitted to respond to criti-cisms raised by opposing parties.
Moreover, the State itself has recognized that the present circumstances present good cause to file surrebuttal testimony. In its July 10 motion, the State seeks leave to file its own surrebuttal testimony in nearly identical circumstances.N In support of that motion, the State notes that LILCO filed rebuttal testimony on May 27, 1987, j
challenging the validity of the methodology and data used in State's traffic analysis.
The State adds that it does not agree with Mr. Lieberman's characterization of the State's analysis, and concludes, in language that is equally applicable to the present case, that "[i]f lef t unaddressed, [the] misunderstanding of the State's analysis will
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1 mislead the Board and hamper its attempts to consider the important traffic issues 8/
The only material difference is that the State does not bear the burden of proof in this proceeding.
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before it." Id. at 2. The State adds that "[i]n order for the Board to have a complete record on which to render its decision, the State's response must be admitted." Id. at 3.
Like the State, then, LILCO here is "merely attempting to set the record straight in an area of some considerable technological complexity." Id.
In addition, as is the case with the State, LILCO could not have anticipated the State's criticisms of Mr. Lieberman's analyses. Thus, this surrebuttal testimony could not have been included in LILCO's previously filed testimony. Furthermore, as the State points out, due to the complexity of the issues here, cross-examination is not an entirely adequate vehicle for responding to the State's criticisms. Accordingly, as is the case with the State's surrebuttal testimony, good cause exists here for LILCO to file the surrebuttal testimony of Edward B. Lieberman.E II. LILCO's Response to State of New York Motion for Leave to File Response to Rebuttal Testimony of Edward B. Lieberman There is no fundamental difference between the State's July 10 motion and LILCO's present motion. In both instances, one party seeks the opportunity to respond to criticisms raised by an opponent concerning that party's traffic testimony. Thus, the two motions should be disposed of in the same manner.
LILCO believes that both motions should be granted. Thus, initially, LILCO does not oppose the State's motion. This position, however, is conditional. It would be mani-festly unfair to permit one party to file surrebuttal testimony while denying another equally situated party that same right. Accordingly, should the Board deny LILCO's 2/
LILCO proposes that Mr. Lieberman appear for cross-examination sometime dur-ing the final week scheduled for this hearing. LILCO anticipates that it will take only a day-and-a-half or two days with New York State's traffic witnesses, Messrs. Hartgen and Millspaugh, instead of the three contemplated in the schedule.
Thus, Mr.
Lieberman could appear on July 28, the third day scheduled for the State's panel. He could also appear on Monday, July 27,which is currently open. Finally, LILCO does not intend to examine Dr. Harris, who is currently scheduled for July 30 or 31.
Mr.
Lieberman could appear on either of those dates.
. j motion,' the State's motion must also fail and Part III of the State's July 10 testimony must be stricken.
Respectfully submitted, h '",^
James N. Christman Stephen W. Miller Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: July 17,1987 l
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