ML20235Y853
| ML20235Y853 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/17/1987 |
| From: | Miller S HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20235Y845 | List: |
| References | |
| OL-3, NUDOCS 8707270079 | |
| Download: ML20235Y853 (6) | |
Text
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4 LILCO, July 17,1987 i
'O 1
[C', rl'I f UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION j
87 JUL 20 N0:57 Before the Atomic Safety and Licensing Board
.: p C60. _
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
) Docket No. 50-322-OL-3
) (Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
(
1 MOTION TO STRIKE PORTIONS OF 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 LILCO hereby moves to strike the paragraph on page 7, lines 8-13 of the rebuttal testimony of David T. Hartgen and Robert C. Millspaugh.II In their testimony, the State's traffic witnesses challenge Mr. Lieberman's assumption that evacuees will use two lanes to make lef t turns from southbound Willis Avenue onto the Southern LIE Ser-vice Road and from southbound Route 107 onto Old Country Road, although only one lane at both locations is specifically designated for lef t turns. See State's July 10 testi-mony at 6-7.
In the paragraph that LILCO seeks to strike, Messrs. Hartgen and Millspaugh assert that it would be illegal to make a lef t turn from the through lane at these intersections. The witnesses rely on New York State Vehicle and Traffic Law 55 1160 and 1163 for their position. The Board, however, has consistently held that the applicability of New York statutes is a matter for New York tribunals and is, therefore, beyond the scope of the present proceeding. In addition, the testimony calls for legal conclusions that the State's traffic witnesses are not qualified to make. Finally, this issue is not timely raised.
1/
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)("the State's July 10 testimony").
8707270079 870717 PDR ADOCK 05000322 g
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J' As is of ten true with general application statutes, the meaning of the referenced statutes with respect to specific cases is not clear from the face of those statutes, but instead is subject to interpretation. For instance, it is not entirely clear that these statutes apply in the present case or that exceptions to the statutes (for instance, ex-ceptions for emergency situations) do not apply. Such interpretation is not a proper 1
matter for this proceeding. This Board has consistently held that the interpretation of
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State and local law should be lef t to the State courts.2/ The present testimony is sim-ply another in a series of attempts to argue that New York laws will be used to prevent the public from getting help in an emergency and ought not be considered by this Board.
In addition, neither Mr. Hartgen nor Mr. Millspaugh is qual.ified to offer his opin-ion on the proper legal interpretation to give these statutes. The resumes of these gen-tlemen establish that they are both, by education and profession, engineers, albeit with particular emphasis on traffic engineering matters. See Exhibits 1 and 2 to Direct Tes-timony of David T. Hartgen and Robert C. Millspaugh on Behalf of the State of New York Regarding LILCO's Reception Centers (April 13, 1987). Neither is trained as a lawyer or as a law enforcement officer. It is true that in the past the Board has per-mitted non-lawyers to offer legal interpretations. In those cases, however, it has been the job of those persons to understand the meaning of the law or opinion at issue. Thus, 2/
As a recent example, the Interveners have argued before this Board that the Roslyn and Bellmore facilities are not available as provided in the LILCO Plan because the use of those facilities as reception centers would violate local zoning ordinances.
Suffolk County, State of New York, and Town of Southampton Motion for Reconsid-eration of Schedule (January 22,1987), at 5. Consistent with prior practice, this Board refused to decide the issue, holding that "[t]he fora most competent to make that de-termination [whether the use of the two facilities as reception centers would violate locallaws] are the New York courts. The Board will handle the matter as it did when other New York laws had to be interpreted in this proceeding." Memorandum and Order (Ruling on LILCO's and Interveners' Motion for Reconsideration of Schedule (February 9,1987), at 13. The Board, therefore, ordered that "[u]ntil one or more of the parties obtains such a ruling [ interpreting the local ordinances], this Board will delay making a decision on this issue until it decides all other remaining issues before it."
Id. at 15. Likewise, the interpretation of the New York traffic statutes in the present situation should be lef t to the New York courts.
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- l they have had an adequate basis for interpreting the relevant documents. For instance, emergency planners have been permitted to offer their interpretations of regulations or of NRC opinions regarding those regulations because to engage in emergency planning, these persons must understand the relevant laws. That is not the case here. Neither Mr. Hartgen nor Mr. Millspaugh has demonstrated sufficient background with the rele-vant statutes to offer an opinion on them. Their testimony, then,is nothing more than lay opinion unaided, so far as one can tell, by experience. Accordingly, it is not proper for them to offer their legalinterpretations of the two New York traffic statutes.
Finally, this testimony concerns new material that has not been timely filed.
The lef t-turn movements which Messrs. Hartgen and Millspaugh assert are illegal have been part of the Plan for some time. The State's witnesses admit, for instance, that the double-lane lef t turns were contemplated by Mr. Lieberman in KLD TR-201, which was filed with LILCO's direct testimony on March 30,1987. See State's July 10 testimony at 6.
Rebuttal testimony on KLD TR-201 was due on May 27, 1987. Indeed, Messrs.
Hartgen and Millspaugh criticized Mr. Lieberman's use of double-lane lef t turns in that May 27 testimony.
See Rebuttal Testimony of David T. Hartgen and Robert C.
Millspaugh on Behalf of the State of New York on KLD's Capacity Analysis (KLD TR-201) (May 27,1987), at 7-8. The statutes relied on by the State's witnesses were in effect when that rebuttal was filed. Thus, the appropriate time to raise this issue was in the May 27 rebuttal testimony. The State's attempt to do so now is merely an un-timely effort to supplement prior testimony. Moreover, to raise this issue at this late date, just one week before Mr. Lieberman is scheduled to testify,is manifestly unfair to LILCO.
t 5 Conclusion For the foregoing reasons, LILCO respectfully requests that this Board strike the paragraph on page 7, lines 8-13 from the State's July 10 testimony.
Respectfully submitted,
^
James N. Christman Stephen W. Miller Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: July 17,1987
LILCO, July 17 1987 0
l CERTIFICATE OF SERVICE
'87 JUL 20 A10:57 crs D(t r 8
In the Matter of
!? ' L LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-3 I hereby certify that copies of LILCO'S MOTION TO PRESENT REBUTTAL TES-TIMONY BY DR. MICHAEL LINDELL and LILCO MOTION FOR LEAVE TO FILE SUR-REBUTTAL TESTIMONY OF EDWARD B. LIEBERMAN ON THE SUITABILITY OF RE-CEPTION CENTERS AND LILCO RESPONSE TO STATE OF NEW YORK MOTION FOR LEAVE TO FILE RESPONSE TO REBUTTAL TESTIMONY OF EDWARD B. LIEBERMAN and MOTION TO STRIKE PORTIONS OF 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 were served this date upon the following by hand or telecopier as indicated by one asterisk, by Federal Express as indicated by two asterisks, or by first-class mail, postage prepaid.
Morton B. Margulies, Chairman
- Secretary of the Commission Atomic Safety and Licensing Attention Docketing and Service Board Section U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers, Rm. 407 1717 H Street, N.W.
4350 East-West Hwy.
Washington, D.C. 20555 Bethesda, MD 20814 Atomic Safety and Licensing Dr. Jerry R. Kline
- Appeal Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission East-West Towers, Rm. 427 Atomic Safety and Licensing 4350 East-West Hwy.
Board Panel Bethesda, MD 20814 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Frederick J. Shon
- Atomic Safety and Licensing Richard G. Bachmann, Esq.
- Board George E. Johnson, Esq.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission l
l East-West Towers, Rm. 430 7735 Old Georgetown Road I
4350 East-West Hwy.
(to mailroom)
Bethesda, MD 20814 Bethesda, MD 20814
- - _ -. Herbert H. Brown, Esq.
- Mr. Philip McIntire Lawrence Coe Lanpher, Esq.
Federal Emergency Management Karla J. Letsche, Esq.
Agency Kirkpatrick & Lockhart 26 Federal Plaza South Lobby - 9th Floor New York, New York 10278 1800 M Street, N.W.
Washington, D.C. 20036-5891 Jonathan D. Feinberg, Esq.
New York State Department of Fabian G. Palomino, Esq.
- Public Service, Staff Counsel Richard J. Zahnleuter, Esq.
Three Rockefeller Plaza Special Counsel to the Governor Albany, New York 12223 Executive Chamber Room 229 Ms. Nora Bredes State Capitol Executive Coordinator Albany, New York 12224 Shoreham Opponents' Coalition 195 East Main Street Mary Gundrum, Esq.
Smithtown, New York 11787 Assistant Attorney General 120 Broadway Gerald C. Crotty, Esq.
Third Floor, Room 3-116 Counsel to the Governor New York, New York 10271 Executive Chamber State Capitol Spence 'W. Perry, Esq.
- Albany, New York 12224 William R. Cumming, Esq.
Federal Emergency Management Martin Bradley Ashare, Esq. **
Agency Eugene R. Kelly, Esq.
500 C Street, S.W., Room 840 Suffolk County Attorney Washington, D.C. 20472 H. Lee Dennison Building Veterans Memorial Highway Mr. Jay Dunkleberger Hauppauge, New York 11787 New York State Energy Office Agency Building 2 Dr. Monroe Schneider Empire State Plaza North Shore Committee Albany, New York 12223 P.O. Box 231 Wading River, NY 11792 Stephen B. Latham, Esq. **
j Twomey, Latham & Shea 33 West Second Street P.O. Box 298
)
Riverhead, New York 11901 q
James N. Christman J
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 l
DATED: July 17,1987 1
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