ML20214G419
| ML20214G419 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/18/1987 |
| From: | Case D KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3516 OL-3, NUDOCS 8705270063 | |
| Download: ML20214G419 (13) | |
Text
'Af/6 00tKETE0 tisHRC May 18, 1987 UNITED STATES OF AMERICA NUCLEAR RECULATORY COMMISSION BeforetheAtomicSafetyandLicensinoBdWMhj,hcb.jN.,.
OFF!d D E j'
)
In the Matter of
)
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Docket No. 50-322-OL-3 LONG ISLAND LIGHTING COMPANY
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(Emergency Planning)
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(Shoreham Nuclear Power Station,
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Unit 1)
)
)
RESPONSE OF SUFFOLK COUNTY TO LILCO'S MOTION TO LIMIT CROSS-EXAftINATION LILCO's Motion to Limit Cross-Examination by New York State and Suffolk County (the "LILCO Motion") requests that.both this Board and the Frye Board enter an order limiting Suffolk County's cross-examination of New York State witnesses and the State of New York's cross-examination of Suffolk County witnesses.
In particular, the Motion seeks to restrict any Suffolk County cross-examination of all New York State witnesses on all contested issues by (1) preventing Suffolk County from examining State witnesses until after the cross-examination of other parties; (2) limiting Suffolk County's examination of State 8705270063 B70518 ADOCK05000g2 l
PDR O
Y
witnesses;to-the scope of the other parties' cross-examination; and (3)~ prohibiting Suffolk County from asking_ leading
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questions.1/
The' foundation for LILCO's Motion is extremely tenuous..
i Af ter reviewing ther ' direct testimony and the discovery requests of Suffolk County and the State of New York, LILCO reaches the unremarkable conclusion that Suffolk County and the State of-New
~
York have cooperated with.one another in this litigation.
On this limited basis, LILCO urges that this Board impose-a crior restraint on Suffolk County's cross-examination of the State of f_
New York's witnesses.
In the absence of a prior restraint, LILCO argues, such-cross-examination would allow Suffolk County "in effect to supplement their direct testimony without good cause and without notice to other parties."
LILCO Motion at 2.
1/
LILCO's precise request is:
)
1.
With respect'to all contested issues, Suffolk County l
should not be allowed-to examine New York State
-witnesses-(and New York State should not be able to p
examine Suffolk County witnesses) until after the l
cross-examination by LILCO, the NRC' Staff, and FEMA; examination by Suffolk County counsel (or New York State counsel) should then be limited to'the scope of ll the cross-examination by LILCO, the NRC Staff, and FEMA.
2.
With respect to all contested issues, examination of State witnesses by County counsel (and of County
[
witnesses by State counsel) should follow the rules of direct examination -- for example, no leading l
questions.
t t
LILCO Motion at 1.
The LILCO Motion also seeks consolidation of Suffolk County and the State of New York in Contentions EX15 and EX16 of the OL-5 proceeding -- a request which is not relevant to this proceeding.
I
LILCO's Motion must be denied as a groundless effort to alter NRC practice and the customary practice in this matter.
Indeed, with regard to the OL-5 proceeding, this Motion was argued before the Frye Board on Wednesday, May 13, 1987.
The Frye Board denied LILCO's Motion that came day, finding no record of abuse by the State of New York or Suffolk County and holding that the best way to address LILCO's concerns was to deal with the cross-examination as it occurred.
OL-5 Transcript at 5956-5960.2/
With respect to this proceeding, Suffolk County urges that this Board follow the rationale of the Frye Board and deny LILCO's Motion.
l/
The following transcript excerpt encompasses the Frye Board ruling:
" JUDGE FRYE:
If this gets to be a problem in the course of this testimony, I will deal with.t then.
But, so far it has not been a problem.
MR. IRWIN:
No, sir.
But, you've never had a panel like this --
1 JUDGE FRYE:
That's true.
l MR. IRWIN:
-- where they have voluntarily consolidated themselves.
JUDGE FRYE:
That's true.
So, we will just hold this for now.
If it becomes a problem while we are going through the testimony, we will pick it up at that time.
But, I am confident, or I am hopeful anyway, that having set
[ sic]-through a number of weeks that it's not going to be a problem.
OL-5 Transcript at 5959.
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I.
LILCO'S MOTION IS PREMATURE r
Under NRC practice each Intervenor has the right to cross-examine witnesses.
Consolidated Edison Co. of New York (Indian Point, Unit 2) and Power Authority of the State of New York (Indian Point, Unit 3), LBP-83-29, 17 NRC 1117, 1120 (1983).3/
In addition, it has been the customary practice on the Shoreham emergency planning hearings that each party has the right to cross-examine the other parties' witnesses.
Yet, LILCO now seeks a prior restraint on County cross-examination because the County and the State have cooperated in the past.
LILCO's Motion, however, is not based upon evidence of past abuse of' County cross-examination of New York State witnesses.
Rather, it is based on speculation.- Such speculation does not support the extraordinary relief LILCO seeks.
LILCO contends that the County's cross-examination should be limited because County cross-examination of State witnesses will constitute " additional direct testimony."
LILCO Motion at 8.
This argument is without merit because, to the extent Suffolk County cross-examines a State of New York witness, Suffolk County's cross-examination is generally limited by the scope of 3/
The exact language of the Indian Point Board was, " Cross-examination, though subject to restriction, is a fundamental right conferred on parties to formal adjudication in NRC proceedings by the Administrative Procedure Act and by the Commission's Rules of Practice."
Consolidated Edison Company of New York (Indian Point, Unit 2) and Power Authority of the State l
of New York (Indian Point, Unit 3), LBP-83-29, 17 NRC 1117, 1120 (1983)..-.
the direct examination.
Houston Lichtina & Power Co. (South Texas Project Units 1 and 2), ALAB 799, 21 NRC 360, 378 (1985).
It is therefore difficult to understand the logic of LILCO's argument that the County will be in a position to introduce new direct testimony through cross-examination of State witnesses.
To the extent a party seeks to cross-examine beyond the scope of direct testimony, the Board can rule on the specific question at that time, when it will be in a better position to address the propriety of the cross-examination at issue based on the specific question and the procedural context in which the question is asked.1/
However, given the dearth of evidence of either past or potential abuse, it would be entirely premature for the Board to enter a blanket prohibition of the type requested by LILCO.
In short, a ruling such as LILCO contemplates is clearly premature and should therefore be denied.
Whether cross-examination of a favorable witness unfairly prejudices another party, whether a question introduces new direct testimony, and whether leading questions are permissible are all decisions which depend on the specific question and its context.
As the Frye Board recognized, such rulings should not be made in a vacuum, but should await specific challenges at trial.
1/
Indeed, in the earlier Shoreham emergency planning litigation, counsel for the State of New York cross-examined County witnesses about testimony of a LILCO witness.
The Board ruled that such an effort to focus the testimony and find exact areas of disagreement of a witness was not improper cross-examination and permitted counsel to go beyond the direct testimony of the witness.
OL-3 Transcript at 6319-6324.._-
1-e
.II..LILCO' PRESENTS NO BASIS FOR LIMITING CROSS-EXAMINATION The bulk of LILCO's Motion is a lengthy exerc'ise designed to show that the State of New York and Suffolk County have worked-together.
To this end, LILCO points out that the testimony of-County witnesses and State witnesses occasionally contain cross-I references to each others' conclusions; that Suffolk County-attorneys have, on occasion, met with New York State witnesses; and that.Suffolk-County has claimed the "' joint counsel' attorney
. client privilege."
This exercise is only tangentially relevant.
i-to the consideration of whether to deprive a party of its right l
to cross-examine before.the hearing even starts.
The issue of depriving a party of its right to cross-examine depends not on instances of congruent testimony, but on whether the parties.have substantially the same interest and would not be prejudiced by 1
such a procedure.
See Consumers Power Company (Midland Plant, f
~
Units 1 and 2), 17 N.R.C.
987, 993 (1983).
The State of New York and Suffolk County are separate parties.and it is of limited relevance that their witness panels i
may have congruent testimony, occasionally cite each.other, or p
that counsel have exercised a joint defense privilege.
- Indeed, 7
if the key consideration in limiting cross-examination were congruent testimony, then all parties would engage in an exhaustive search of the record to find such congruent testimony 4
so they could move to limit examination accordingly.
In a t
i
complicated matter such as this, the result of such an effort would be absurd.
For example, using LILCO's logic, Suffolk County could seek to limit the LILCO, FEMA, and NRC Staff cross-examinations because the LILCO testimony, the FEMA testimony and the NRC testimony all cite and rely on the Krimm Memorandum in discussing the planning basis for the reception centers.1/
Similarly, one expert's cross citation of another expert's testimony is irrelevant to the issue of whether a party should be permitted to cross-examine a particular witness.
Any expert can rely on or adopt the testimony of another expert as a basis for reaching their conclusion.
The nature and degree of one experts' reliance on another experts' opinion or finding is a matter for cross-examination, which will permit an assessment of the weight of the testimony.
Such cross-citation is not, however, a basis for limiting the examination rights of one party.
For instance, the County experts reference and cite with approval some of the published work of LILCO witness Michael Lindell.5/
Whether the use of Mr. Lindell's conclusions support the conclusions of the County witnesses is a matter for cross-examination, but it is irrelevant to LILCO's ability to cross-examine the County witnesses.
5/
Egg LILCO Testimony at 3-4, and 9-10; FEMA Testimeny at 7, and NRC Testimony of Falk Kantor at 5-6.
5/
Egg Testimony of Stephen Cole, Susan C. Saegert, James H.
Johnson, Jr., David Harris, Martin Meyer, Gregory C. Minor and Steven C. Sholley (April 13, 1987) at 23-25; 27.
In addition, because counsel for the County and the State of New York may have worked together at some point does not mean that examination rights should be restricted.
Indeed, the evidence in the OL-5 proceeding is that en at least one occasion LILCO and the NRC Staff worked jointly in preparing a pleading, yet the LILCO and Staff examination rights have not been 1:.mited as a result.1/
Similarly, the use of the joint defense privilege by Suffolk County and the State of New York is not material to the limitation of cross-examination rights.
The joint defense privilege simply permits parties to share information without that sharing being construed as a waiver of any attorney-client, work product or other privilege.
Egg S.N. Stone and R.S.
Liebman, Testimonial Privileces, at $1.55 (1983).
The joint defense privilege does not reflect joint representation, nor is it a basis for limiting cross-examination rights at trial.
Thus, LILCO has raised a red herring by identifying various incidents of congruent testimony, cross citation and the use of joint defense privilege.
The State of New York and Suffolk 1/
Egg the discussion on page 3 of the Response of Suffolk County, State of New York and the Town of Southampton to the LILCO and NRC Staff Objections to the Emergency Planning Contentions Relating to the February 13 Exercise ( August 25, 1986).
In particular, the Intervenors show that certain portions of the LILCO and NRC Staff Objections to the Emergency Planning Contentions Relating to the February 13 Exercise were verbatim copies.
Because the LILCO and Staff filings were made on the same date, it is certain that LILCO gave the Staff an advance copy of all or part of the filing. -- - -
County are different parties, and in the absence of some prejudice to LILCO, each party should be permitted to cross-examine all witnesses.
As was set forth above, LILCO cannot show that permitting the County and State to engage in cross-examina:lon of each others witnesses has caused prejudice in the past.
- Moreover, LILCO cannot even show that such prejudice might occur in the future.
LILCO's Motion therefore presents no basis for the Board to limit cross-examination and its lengthy review of purported State and County cooperation should be seen for the irrelevant smoke screen that it is.
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III. CONCLUSION For the reasons stated above, LILCO's Motion should be denied.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney H. Lee Dennison Building Veterans Memorial Highway Hau auge, New York 11788 ha~
Christopher M. McMurray David T. Case KIRKPATRICK & LOCKHART 1800 M Street, N.W.
South Lobby - Suite 900 Washington, D.C.
20036-5891 Attorneys for Suffolk County May 18, 1987 -
00f.hETEC May 18, 15NY UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Of f tCE OF --
Before the Atomic Safety andLicensinaIgiffgglCi
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the RESPONSE OF SUFFOLK COUNTY TO LILCO'S MOTION TO LIMIT CROSS-EXAMINATION have been served on the following this 18th day of May, 1987 by United States mail, first class, except as otherwise noted.
Morton B. Margulies, Esq., Chairman **
Joel Blau, Esq.
Atomic Safety and Licensing Board Director, Utility Intervention U.S.
Nuclear Regulatory Commission N.Y. Consumer Protection Board Washington, D.C.
20555 Suite 1020 Albany, New York 12210 Dr. Jerry R. Kline**
William R. Cumming, Esq.**
Atomic Safety and Licensing Board Spence W. Perry, Esq.
U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C.
20555 Federal Emergency Management Agency 500 C Street, S.W.,
Room 840 Washington, D.C.
20472
s Mr. Frederick J. Shon**
Anthony F.
Earley, Jr., Esq.
[
Atomic Safety and-Licensing Board General Counsel I
U.S. Nuclear Regulatory Commission Long-Island Lighting Company l
Washington, D.C.
20555' 175 East Old Country Road l
Hicksville, New York 11801 Ms. Elisabeth Taibbi W. Taylor Reveley, III, Esq.*
Clerk Hunton and Williams i
Suffolk County Legislature Post Office Box 1535 Suffolk County Iegislature 707 East Main Street i
Office Buildicg Richmond, Virginia 23212 Veterans Memorial Highway
]
Hauppauge, New York 11788 i
Mr. L. F. Britt Stephen B. Latham, Esq.
Long Island Lighting Company Twomey, Latham & Shea Shoreham Nuclear Power Station 33 West Second Street North Country Road Riverhead, New York-11901 Wading River, New York 11792 Ms. Nora Bredes Docketing and Service Section 3
Executive Director Office of the Secretary I
Shoreham opponents Coalition U.S. Nuclear Regulatory Comm.
195 East Main Street 1717 "H" Street, N. W.
Smithtown, New York 11787 Washington, D.C.
20555 Mary M. Gundrum, Esq.
Hon. Michael A. LoGrande New York State Department of Law Suffolk County Executive j
120 Broadway, Third Floor H.
Lee Dennison Building
}
- Room Number 3-116 Veterans Memorial Highway New York, New York 10271 Hauppauge, New York 11788 I
MHB Technical Associates Dr. Monroe Schneider i
1723 Hamilton Avenue North Shore Committee Suite "K" Post Office Box 231 j
San Jose, California 95125 Wading River, New York 11792 Martin Bradley Ashare, Esq.
Fabian G. Palomino, Esq.*
3 Suffolk County Attorney Richard J.
Zahnleuter, Esq.
Bldg. 158, North County Complex Special Counsel to the Veterans Memorial Highway Governor of the State Hauppauge, New York 11788 of New York l
Executive Chamber, Room 229 j
Capitol Building Albany, New York 12224 i
Mr. Jay Dunkleburger Richard G. Bachmann, Esq.**
New York State Energy Office U.S. Nuclear Regulatory Comm.
Agency Building Two Washington, D. C.
20555
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Empire State Plaza l
Albany, New York 12223 2
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- - - -. - - - - - - - - - A
David A. Brownlee, Esq.
Mr. Stuart Diamond Kirkpatrick and Lockhart Business / Financial 1500 Oliver Building.
NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 West 43rd Street New York, New York 10036 Douglas J. Hynes, Councilman Town Board of Oyster Bay Town Hall Oyster Bay, New York 11771 C-M 4'-
David T. Case KIRKPATRICK & LOCKHART 1800 "M" Street, N. W.
South Lobby - Ninth Floor Washington, D. C.
20036-5891
- Via Telecopy
- Via Hand Delivery May 18, 1987 l
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