ML19225A295

Commonwealth of Ma Objections to Admission of Boston Edison 780802 Legal Opinions During 790611 Hearing.Certificate of Svc Encl

ML19225A295
Person / Time
Site:	05000471
Issue date:	06/07/1979
From:	Burt L MASSACHUSETTS, COMMONWEALTH OF
To:
References
NUDOCS 7907180773
Download: ML19225A295 (5)

Text

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UNITED STATES OF AMERICA

'EV NUCLEAR REGULATORY COMMISSION .

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,/ n , , .,3 Befcre the Atomic Jafety and Licensing Board (gf

, JUN 111978 7 -

NP4 PUPLIC DOCDEXT . ...

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) og In the Matter of: ) p

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BOSTON EDISON COMPANY, et al. )

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(Pilgrim Nuclear Generating ) Docket No. 50-471 Station, Unit 2) )

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MEMORANDUM OF THE COMMONWEALTH OF ?GSSACHUSETTS IN SUPPORT OF ITS OBJECTION TO THE ADMISSION OF APPLICANT'S LEGAL OPINION TESTIMONY.

During the hearings on May 31, 1979, the Applicant announced its intention to present as witnesses the out-of-state counsel who author ed the four legal opinions 1ttached to the August 2, 1978 letter from R. M. Butler /BECo. to W. H. Regan, NRC (See, Tr. 9859-9878). Upon objection of the Commonwealth, these legal opinions had not been introduced in evidence as part of Applicant's Exhibit 14 or Staff's Exhibit 52 (See, Tr. 9622-9624, 9651-52, 9654-9662).

At the close of the hearings on June 1, 1978, counsel for the Applicant again raised its desire to make these out-of-state counsel available for cross-examination of their legal opinions in the forthcoming hearing on Monday, June 11, 1979 (Tr. 10, 188, 10, 99[ sic]). The Ccmmonwealth continues to press its objection to the admission of these documents or any other testimony on the laws of neighboring New England states.

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It is a well-established principle of evidence that a witness may not give his or her opinion on questions of domestic law.

See McCormick, Evidence, Sec. 12, 2d Ed., 1972. The reasons for this rule are self-evident. The judge, or in this case, the Licensing Board, is charged with the exclusive duty of making conclusions of l a <' . Such conclusions can be based on factual evidence in the record, and other f acts of which the decision-maker can take of ficial or judicial notice, i.e., statutes, regulations, judicial and adminis-trative decisions. See 10 CFR Part 2, S 2.7.43(h).

Opinions on the law are within the province of counsel to make by way of argument. It is, after all, the job of a lawyer to be an advocate, not an " expert", on how the law should be interpreted in view of the interests of his client.

The four legal opinions attached to the August 2, 1978 letter are no more than pure arguments of counsel. They contain inter-pretations of various statutes, some legislative history, and specu-lations as to the possible obstacles to be encountered by a foreign utility in complying with the laws of New Hampshire, Vermont, Rhode Island and Connecticut. As such, these legal opinions do not consti-tute factual expert testimony upon which the Board could determine the extent of the legr.1 and constitutional barriers potentially posed by siting the Filgrim 2 facility outside of Massachusetts.* /

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Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 NRC 503, 540 (1977); ALAB-471, 7 NRC 477, 490-498 (1978); CLI-78-14, CLI-78-14, 7 NRC 952, 976-977 (1978) Gradford, concurring in part and dissent-ing in part).

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The Commonwealth submits that such " legal testimony" is inadmis-sible as evidence, and would be more appropriately reserved for the Applicant's final trial memorandum in this proceeding. Certainly, nothing can prevent the Applicant from seeking assistance from out-of-state counsel in the preparation of its final brief.

The Board has indicated that it can take official notice of the relevant state statutes and that the parties may argue their respective interpretations of the law in their briefs (Tr. 9863-9878). The Commonwealth believes this procedure is both the correct and the most practical manner in which to proceed on this matter.

For the above-stated reasons, the Commonwealth respectfully requests the Board to sustain its objection to the introduction of the four legal opinicns attached to the Applicant's letter of August 2, 1978 or related legal testimony by the authors of such opinions.

Respectfully submitted, K$

LAURIE BURT Assistant Attorney General Commonwealth of Massachusetts Environmental Protection Division One Ashburton Place, 19th Floor Boston, Massachusetts 02108 (617) 727-2265 Dated at Boston, Mass.

June 7th, 197F YbEJ gl;ly a -

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of: )

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BOSTON EDISON COMPANY et al. )

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(Pilgrim Nuclear Generating ) Docket No. 50-471 Station, Unit 2) )

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CERTIFICATE OF SERVICE.

I, LAURIE BURT, hereby certify that the foregoing

" Memorandum of the Commonwealth of Massachusetts in Support of Its Objection to the Admission of Applicant's Legal Opinion Testimony" has been served on the following by depositing copies thereof in the United States Mail, first class postage prepaid, this 7th day of June 1979:

EDWARD LUTON, ESQ. BARRY H. SMITH, ESQ.

Chairman, Atomic Safety and MARCIA E. MULKEY, ESQ.

Licensing Board Of fice of the Executive U.S. Nuclear Regulatory Commission Legal Director Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 DR. A. DIXON CALLIHAN Union Carbide Corporation Atomic Safety and Licensing Board P. O. Box Y Panel Oak Ridge, Tennessee 37830 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 DR. RICHARD F. COLE Atomic Safety and Licensing Board WILLIAM S. ABBOTT, ESQ.

U.S. Nuclear Regulatory Commission 50 Congress Street, Suite 925 Washing on, D.C. 20555 Boston, Mass. 02109 Atomic Safet' ; and Licensing Appeal OFFICE OF THE SECRETARY Board Cocketing and Service Section U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 MR. DANIEL F. FORD MR. AND MRS. ALAN R. CLEETCN 1208 Massachusetts Ave. 22 Mackintosh Street Cambridge, Mass. 02138 Franklin, Mass. 02038 435 070 h

HENR'i HERRMANN, ESQ. Dale G. Stoodley, Esq.

151 Tremont Street Boston Edison Comp;any Boston, Mass. 02111 800 Boylston Street Boston, Mass. 02199 Chief Librarian Plymouth Public Library George H. Lewald, Esq.

North Street Ropes and Gray Plymouth, Mass. 02360 225 Franklin Street Boston, Mass. 02110 EEWARD L. SELGRADE Deputy Director Governor's Massachusetts Office of Energy Resources 73 Tremont Street Boston, Mass. 02108 LAURIE BURT Assistant Attorney General Commonwealth of Massachusetts Environmental Protection Division One Ashburton Place, 19th Floor Boston, Massachusetts 02108 (617) 727-2265 4 'JJr g' l,9

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