ML20214A983
| ML20214A983 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/11/1987 |
| From: | Bachmann R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3477 OL-3, OL-5, NUDOCS 8705200034 | |
| Download: ML20214A983 (7) | |
Text
,
l 3'fil May 11,1987 00LMETED I
USHRC UNITED STATES OF AMERICA
'87 MM 15 N0:05 NUCLEAR REGULATORY COMMISSION 0FF n HEFORE THE ATOMIC SAFETY AND LICENSING BOARD *'"..![.) ~
In the Matter of
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
LONG ISLAND LIGHTING COMPANY
)
)
Docket No. 50-322-OL-5 (Shoreham Nuclear Power Station,
)
(EP Exercise)
Unit 1)
)
NRC STAFF RESPONSE TO LILCO'S MOTION TO LIMIT CROSS-EXAMINATION 1.
INTRODUCTION On May 5,1987, LILCO filed its " Motion to Limit Cross-Examination by New York State and Suffolk County" (" Motion") before the Licensing Boards in both the OL-3 and OL-5 proceedings.
In its Motion, LILCO requests that the Boards limit cross-examination of New York State witnesses by Suffolk County attorneys, and of Suffolk County witnesses by New York State attorneys.
For the reasons discussed below, the Staff supports LILCO's Motion.
II. DISCUSSION LILCO requests that the Board order three forms of limits on cross-examination.
With respect to all contested lasues. (1) that Suffolk County and New York are to conduct their cross-examination of each other's witnesses after the other parties have conducted their cross-examination with their examination limited to the scope of the other parties' cross-examination, and (2) that the County and Stato cross-examination of the County and State witnesses follow the rules for 8705200034 870511 gDM ADOCK0500g2 36f
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direct examination, eg no leading questions; and (3) with respect to Contentions EX 15 and 16 in the OL-5 proceeding, that Suffolk County and New York are to be treated as a single consolidated party. Motion at 1-2.
As basis for its Motion LILCO shows that Suffolk County attorneys have worked with New York State witnesses both in preparation for depositions and in the preparation of direct written testimony. Motion at 2-6.
LILCO further points out that it is plain that the County and the Stato attorneys examined each other's witnesses' testimony before such testimony was filed; that each set of testimony contains cross-references to the other testimony; that Suffolk County attorneys represented that 4
they were entitled to the " joint counsel" attorney-client privilege in t
regard to their preparing New York State witnesses for hearing; and that the witnesses admitted in their depositions of meeting with the other party's attorneys in preparation for hearings. Id.
In addition, in the OL-5 proceeding, the County and the State are sponsoring explicitly combined testimony.1 Thus it is clear that Suffolk County and New York State are not separate and independent parties.
1/
Direct Testimony of James C.
- Baranski, William Lee
- Colwell, Lawrence D. Czech, Gregory C. Minor, James D. Papile, Charles B.
t Perrow, Frank R. Petrone, and Ilarold Richard Zook on Behalf of the State of New York and Suffolk County Regarding Contentions EX 15 and 16 -- the Scope of the Exerciso ( April 6,1987).
i
l
. g The Advisory Committee on the Federal Rules of Evidence O addressed the type of situation which encompasses one where a party has aided in the preparation of another party's witnesses.
Rule 611(c) of the Federal Rules of Evidence, provides in part:
" Ordinarily leading questions should be permitted on cross-examination."
The Advisory Committee on the Proposed Rules of Evidence details that:
The purpose of the qualification " ordinarily" is to furnish a basis for denying the use of leading questions when the cross-examination is cross-examination in form only and not in fact, as for example the " cross-examination" of a party by his own counsel after being called by the opponent (savoring more of redirect)..
Notes of Advisory Committee on Proposed Rules, Rule 611(c); See 10 Moore's Federal Practice I 611.31.
The guidance of the Federal Rules of Evidence la applicable to the instant proceeding, where cross-examination by the County and the State of each other's witnesses is cross-examination in form only.
It would be unfair to the other parties to allow the County and the State to pursue their cross-examination of each other's witnesses where they each took part in preparing these witnesses.
- Further, allowing unfettered cross-examination of these witnesses by parties who took part in their preparation for hearing would prolong the proceedings.
Cross-exami-nation of State witnesses bv the County, and County witnesses by the State, is not permissible.
2/
While the Federal Rules of Evidence are not directly applicable to NRC administrative proceedings, licensing boards often look to thoso
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rules for guidance.
Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAD-717,17 NRC 346, 365 n.32 (1983).
..I
\\ With regard to LILCO's request on the combined State-County testimony,on Contentions EX 15 and 16 (n.1, supra), the Staff supports LILCO's request that Suffolk County and the State of New York be consolidated pursuant to 10 C.F.R. I 2.715a.
It is clear on the face of the testimony that the County and the State have already consolidated their presentation of evidence.
Therefore, their consolidation for purposes of both cross and redirect examination would not prejudice their rights.
III.
CONCLUSION Foi the reasons discussed above, the Board should grant LILCO's Motion by limiting cross-examination by Suffolk County and the State of New York of each other's witnesses and by consolidating the parties for the purposes of examination on Contentions EX 15 and 16.
Respectfully submitted, Richard G. Bachmann Counsel for NRC Staff Dated at Bethesda, Maryland this lith day of May,1987 i
l DXKEll:D
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U%RC UNITED STATES OF AMERICA 87 mY 15 N0:05 NUCLEAR REGULATORY COMMISSIGN 0FFILE r t---'^-
BEFORE TIIE ATOMIC SAFETY AND LICENSING B6ANiilyfjC In the Matter of
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
LONG ISLAND LIGIITING COMPANY
)
)
Docket No. 50-322-OL-5 (Shoreham Nuclear Power Station,
)
(EP Exercise)
Udt 1)
)
CERTTFICATE OF SERVICE I
I hereby certify that copies of "NRC STAFF RESPONSE TO LILCO'S MOTION TO LIMIT CROSS-EXAMINATION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this lith day of May,1987:
Morton B. Margulies, Chairman
- John H. Frye III, Chairman
- Administrative Judge Administrative Judge j
Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Reguktory Commission U.S. Nuclear Regulatory Commission Washington, 1,0 20555 Washington, DC 20555 Jerry R. Kline*
Oscar H. Paris
- Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Frederick J. Shon*
- Jonathan D. Feinberg, Esq.
Administrative Judge New York State Department of Atomic Safety and Licensing Board Public Service U.S. Nuclear Regulatory Commission Three Empire State Plaza Wshington, DC 20555 Albany, NY 12223 Philip McInt*re W. Taylor Reveley III, Esq.
Federal Emergency Management Donald P. Irwin, Esq.
Agency Hunton & Williams 26 Federal Plaza 707 East Main Street Room 1349 P.O. Box 1535 New York, NY 10278 Richmond, VA 23212
O 3 Stephen B. Latham, Esq.
Herbert H. Brown, Esq.
Twomey, Latham & Shea Lawrence Coe Lanpher, Esq.
Attorneys at Law Karla J. Letsche, Esq.
33 West Second Street Kirkpatrick & Lockhart Riverhead, NY 11901 South Lobby - 9th Floor 1800 M Street, NW Atomic Safety and Licensing Washington, DC 20036-5891 Board Panel
- U.S. Nuclear Regulatory Commission Jay Dunkleberger Washington, DC 20555 New York State Energy Office Atomic Safety and Licensing Agency Building 2 g
Appeal Board Panel
- Empire State Plaza U.S. Nuclear Regulatory Commission Albany, NY 12223 Washington, DC 20555 Spence W. Perry, Esq.
Martin Bradley Ashare, Esq.
General Counsel Suffolk County Attorney Federal Emergency Management H. Lee Dennison Building Agency Veteran's Memorial Highway 500 C Street, SW Hauppauge, NY 11788 Washington, DC 20472 Dr. Monroe Schneider Robert Abrams, Esq.
North Shore Committee Attorney General of the State P.O. Box 231 of New York Wading River, NY 11792 Attn: Peter Bienstock, Esq.
Department of Law Ms. Nora Bredes State of New York Shoreham Opponents Coalition Two World Trade Center 195 East Main Street Room 46-14 Smithtown, NY 11787 New York, NY 10047 Anthony F. Earley, Jr.
William R. Cumming, Esq.
General Counsel Ofdce of General Counsel Long Island Lighting Company Federal Emergency Management 175 East Old Country Road Agency Hicksville, NY 11801 500 C Street, SW Washington, DC 20472 Dr. Robert Hoffman Long Island Coalition for Safe Docketing and Service Section*
Living Office of the Secretary P.O. Box 1355 U.S. Nuclear Regulatory Commission Massapequa, NY 11758 Washington, DC 20555 Fabian G. Palomino, Esq.
Joel Blau, Esq.
Richard J. Zahnleuter, Esq.
Director, Utility Intervention Executive Chamber Suite 1020 State Capitol 99 Washington Avenue Albany, NY 12224 Albany, NY 12210
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1 Mary M. Gundrum, Esq.
Barbara Newman New York State Department of Law Director, Environmental Health 120 Broadway Coalition for Safe Living 3rd Floor, Ro6m 3-116 Box 944 New York, NY 10271 Huntington, New York 11743 Christopher M. McMurray, Esq.
James N. Christman, Esq.
David T. Case, Esq.
Donald P. Irwin, Esq.
Kirkpatrick & Lockhart Hunton & Williams South Lobby - 9th Floor 707 East Main Street 1800 M Street, NW P.O. Box 1535 Washington, DC 20036-5891 Richmond, VA 23212 Douglas J. Hynes, Councilman Town of Board of Oyster Bay Town Hall
/
Richard G. Bachmann Counsel for NRC Staff
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