ML20214G836
| ML20214G836 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 05/15/1987 |
| From: | Zahnleuter R NEW YORK, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#287-3525 OL-3, OL-5, NUDOCS 8705270185 | |
| Download: ML20214G836 (11) | |
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gV 00CHETED USHRC May 15, 1987 UNITED STATES OF AMERICA
'87 MAY 20 P6:07 NUCLEAR REGULATORY COMMISSION OFF r -
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Before the Atomic Safety and Licensing r aard
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Docket No. 50-332-OL-3 In the Matter of
)
(Emergency Planning)
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LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-5
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(EP Exercise)
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(Shoreham Nuclear Power Station,
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Unit 1)
)
)
STATE OF NEW YORK RESPONSE IN OPPOSITION TO LILCO'S MOTION TO LIMIT CROSS-EXAMINATION On May 5, 1987, LILCO submitted a " Motion to Limit Cross-F.xamination by New York State and Suffolk County" ("LILCO's Motion").
The Motion pertained to both the OL-5 Exercise Proceeding and the OL-3 Emergency Planning Proceeding.
Since the Frye Board orally resolved the Motion during the OL-5 Exercise Proceeding on May 13, 1987 by partially denying it and partially withholding judgment, the State of New York directs this response primarily to the OL-3 Emergency Planning Proceeding and the Margulies Board.
I.
INTRODUCTION LILCO's Motion, at 1, sets forth the " precise relief" that LILCO seeks.
From the State of New York's perspective, LILCO B705270185 B70515 PDR ADOCK 05000322 3
PDR.
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P desires'to restrain the State.of New York's-participation in these q
proceedings ~in the following ways, and the StateLof New York' 1
responds with the following summary comments:
Restraints Sought Response by-by LILCO State of New York L l.
The State of New York 1.
The State of'New York should not be allowed.
prefers to interrogate to interrogate County County witnesses after witne.1ses until after LILCO, the NRC Staff and LILCO. the NRC Staff-FEMA have had an oppor-and FUMA have-had an tunity to interrogate opportunity,to them.
However, this interrogate them.
appears to be the.first time in-the OL-3 and OL-S Proceedings that the NRC Staff has' agreed to allcw the State of New York to follow it in the order of questioning - see NRC Staff Response ~to LILCO's Motion to Limit' Cross
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Examination, dated May 11, 1987,-supporting LILCO's Motion.
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'2.
The scope of the State 2.
The State of New York of'New York's questioning opposes this restraint.
of County witnesses should be restricted to whatever
/
. topics LILCO, the'NRC Staff and FEMA choose to inquire into.
3.
The State of New York 3.
The State of New York should not-be permitted generally prefers nototo to ask leading questions.
interrogate County witnesses by asking leading questions.
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.. - 4.
Concerning Contentions-4.
This is a matter that is
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.EX 15 and 16, a single not before the Margulies State and County spokes-Board.
person should cross-examine other parties' witnesses, defend the State's and County's witnesses, and conduct redirect examination of the State's and County's witnesses.
It is apparent from this illustration that the main point of LILCO's Motion, as it relates to the Margulies Board, is to require that the State of New York interrogate-County witnesses only on topics pre 7 ously explored by LILCO, the NRC Staff or 1
FEMA.
Nothing in the NRC's regulations support this kind of novel, convoluted, arbitrary restraint.
To the contrary, 10 CFR Section 2.715(c), as well as due process, guarantees to the State of New York "a reasonable opportunity to participate and to introduce evidence, interrogate witnesses and advise the Commission."
This. regulation plainly says " interrogate witnesses."
It plainly does not say " cross-examine only the Applicant's witnesses" or " interrogate other parties' witnesses only to the extent that the Applicant, the NRC Staff or FEMA interrogates other parties' witne.ses."
Consequently, for this reason and other reasons set forth below, the State of New York opposes LILCO's Motion.
II.
THE MARGULIES BOARD SHOULD FOLLOW THE PRECEDENT SET BY THE FRYE BOARD
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. When confronted by_this Motion and similar oral motions during the OL-5 Exercise Proceeding, the Frye Board chose to either deny the motions or to withhold judgment.
The Margulies Board should do'the Same.
There is no reason for this Board to impose any restraints on the State of New York now.
No County witnesses have appeared; LILCO, the NRC Staff and FEMA have not interrogated them; the State of.New York has not interrogated them; and the State of New York certainly_has not asked any objectionable questions.
LILCO's Motion is classicly premature.
LILCO's Motion should be denied, or, in the alternative, it should be deferred until LILCO presents proper proof that LILCO is aggrieved by a particular question posed by the State of New York.
III. THE LAW OF THIS CASE REQUIRES THAT LILCO'S MOTION BE DENIED LILCO's Motion. proclaims on page 8 that " Cross-examination, of course, is designed to probe the weaknesses in a hostile witness's testimony, not to bolster and supplement a friendly witness's testimony."
The underlying implication in this assertion is that it would be inappropriate for the State of New York to bolster and supplement a friendly witness's testimony.
However, the important point that LILCO misses is that the purpose of interrogation, of which cross-examination is a subset, is to further the interests of the interrogator.
Those interests
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. include bolstering and supplementing a friendly witness's testimony.
This is exactly what the State of New York seeks to achieve if and when it decides to question the_ County's witnesses.
This approach to representing the State.of New York's interests is legitimate and it is consistent with the law of this case.
There are many instances throughout this OL-3 Emergency Planning Proceeding where the State of New York has cross-examined' the County's witnesses and the County has cross-examined the State of New York's witnesses.
At no time did the presiding officer restrict the scope of either the State of New York's or the County's questioning to the scope of LILCO's, the NRC Staff's, or FEMA's questioning.
In fact, the presiding officer went further and allowed the State of New York and the County to question each other's witnesses about LILCO's testimony.
This is the law of the case and it should be continued.
For example, at Tr. 3779-80 (all transcript references are to the OL-3 hearing in 1984), counsel for the County asked a State of New York witness (Dr. Hartgen) the following question:
Q Do you agree with Mr. Lieberman's testimony that side friction will not be a factor in reducing service volume during an evacuation, because during an evacuation... there will be saturation conditions?
LILCO objected on the ground that the question called for rebuttal testimony.
However, the presiding officer (Judge Laurenson) overruled the objection, stating:
e
. I don't see that is going to present any problem.
They are asking Dr. Hartgen to comment on some testimony that has been filed by LILCO.
As another example, at Tr. 6319, counsel for LILCO commented:
I would like to note for the record, however, that LILCO does object to the procedure that has been used, for the first time that I am aware of today, in that the State of New York cross-examined the Suffolk County witness panel, not only with respect to the Suffolk County testimony, but with respect to the LILCO testimony.
Judge Laurenson replied at Tr. 6322:
I believe that LILCO has called upon its own witnesses to comment on other testimony that has been in evidence.
And while this may or may not be permitted in various courts of law, this is a practice that has been, I guess, developed here or at least permitted here to focus on the spedIfIc dispute.
And this is one way to find 8ut where the exact disagreement is.
So, this is a policy that we have gene-ally allowed.
(emphasis added).
Judge Laurenson then added the following at Tr.
6324:
And I don't in any way think that what Mr.
Zahnleuter has done here should be criticized or be inferred to be criticism from the Board.
The fact that he, as an attorney, is permitting witnesses to focus on other testimony that is relevant to a particular issue and to get their input on it, I think is a proper way to bring about some resolution.
(emphasis added).
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LILCO's Motion, at page 8, fn.
5,' refers to an occasion when Judge Laurenson characterized questions posed by_the State of New York's. counsel to a State of New York employee as redirect examination'rather than cross-examination.
LILCO used this citation ~to support its claim that cross-examination is designed L
to probe weaknesses in a hostile witness's testimony, not to bolster and supplement a friendly witness's testimony.
The State of New York, however, does not quarrel with the proposition that the questioning of a party's witness by that party's counsel is redirect examination, not cross-examination.
To the contrary, this example cited by LILCO supports the-State of New York's position that cross-examination may bolster and support a friendly witness's testimony.
In response to an inquiry from counsel for the County as to whether the County would have the right: to cross-examine that same State of New York employee, Judge Laurenson replied, "All parties will have that opportunity" and then he qualified his statement as LILCO alluded to above.
At Tr. 14,969, the County did indeed exercise its right to cross-examine the State of New York employee, unfettered by the scope of questions by LILCO, thr NRC Staff or FEMA.
IV.
CONCLUSION In complex case such as this one, it is difficult to label the t.ypt af interrogation that occurs between parties.
For
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example, where FEMA's witnesses agree with LILCO's witnesses on a particular issue, would LILCO's questioning of FEMA's witnesses
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F e constitute redirect examination, cross-examination or something else?
What about' questioning of LILCO'S witnesses, or even the NRC Staff's witnesses by. FEMA?
The sensible solution is not to deprive'the State of New York of its rights to due process and to interrogate witnesses, but to manage the case as fairly as possible so that all parties'have an equal opportunity to present probative evidence.
The fact that counsel for the State of New York relied on counsel for the County to provide some discovery information to the State of New York's witnesses, and to oversee the technical printing and production of the final written testimony of~those witnesses, is inconsequential.
Likewisc, the fact that counsel for the State of New York authorized counsel for the County to sign his name to the final draft of some pleadings because he was not in Washington, D. C.
is also irrelevant.
These things have nothing to do with the right of a party to elicit probative testimony by interrogating witnesses.
LILCO's Motion should be denied.
Respectfully submitted, h
kh.:v{
Richard J yZahnleuter 3
Deputy Special Counsel to the Governor State Capitol, Room 229 Albany, New York 12224
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DOCKETED-USNRC DATE: Maygy, gg720 P6:07 0FFICE Di-ib.h tu i 00CKElius & SL9vitf.
- UNITED STATES OF AMERICA.
iiRANC" NUCLEAR' REGULATORY COMMISSION Before the Atomic Safety and Licensing Board in the Matter of
)
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322-OL-3
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(Emergency Planning)
(Shoreham Nuclear Power Station,
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Unit 1)
)
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CERTIFICATE OF SERVICE 2
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I hereby certify that copies of STATE OF NEW YORK RESPON3E IN
, TF OPPOSITION To "LILCO's MOTION TO LIMIT CROSS-EXAMINATION" have been (h/
- served on the following this 15th day of May 1987.by U.S. mail, first class, ls; except as noted by an asterisk.
Morton B. Margulies*
Dr. Jerry R. Kline*
Chairman Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East-West Towers East-West Towers 4350 East-West Highway 4350 East-West Highway Bethesda, MD 20314 Bethesda, MD 20814 Mr. Frederick J. Shon*
Spence W. Perry, Esq.*
Atomic Safety and Licensing Board William R. Cumming, Esq.
c U.S. Nuclear Regulatory Commission Office of General Counsel, East-West Towers Federal Emergency Management Agency
- 4350 East-West Highway 500 C Street, S.W., Room 840 Bethesda, MD 20314 Washington, D.C. 20472 1
Anthony F. Earley, Jr., Esq.
Joel Blau, Esq.
General Counsel Director, Utility Intervention Long Island Lighting Company N.Y. Consumer Protection Board 175 East Old Country Road Suite 1020 Hicksville, New York 11801 Albany, New York 12210 Ms. Elisabeth Taibbi James N. Christman*
Clerk Hunton & Williams Suffolk County Legislature 707 East Main Street Sulfolk County Legislature Richmond, Virginia 23212 Office Building Veterans Memorial Highway Hauppauge, New York 11788 Stephen B. Latham, Esq.
Twomey, Latham & Shea Mr. L. F. Britt 33 West Second Street Long Island Lighting Company Riverhead, New York 11901 Shoreham Nuclear Power Station North Country Road Docketing and Service Section Wading River, New York 11792 Of fice of the Secretary U.S. Nuclear Regulatory Commission Ms. Nora Bredes 1717 H. Street, N.W.
Executive Director Washington, D.C. 20535 Shoreham Opponents Coalition 195 East Main Street Hon. Michael A. Lo Grande Smithtown, New York 11787 Suffolk County Executive H. Lee Dennison Building Veterans Memorial Highway Adrian Johnson, Esq.
Hauppauge, New York 11783 New York State Department of Law 120 Broadway,3rd Floor Dr. Monroe Schneider Room 3-ll6 North Shore Committee New York, New York 10271 P.O. Box 231 Wading River, New York 11792 MHB Technical Associates 1723 Hamilton Avenue Lawrence Coe Lanpher, Esq.*
Suite K Kirkpatrick & Lockhart San Jose, California 95125 1900 M. Street, N.W.
Suite 300 Martin Bradley Ashare, Esq.
Washington, D.C. 20036 Sulfolk County Attorney Building 158 North County Complex Richard Bachman*
Veterans Memorial Highway U.S. Nuclear Regulatory Commission Hauppauge, New York 11788 Washington, D.C. 20555 Mr. Jay Dunkleburger Douglas 3. Hynes New York State Energy Office Town Board of Oyster Bay Agency Building #2 Town Hall Empire State Plaza Oyster Bay, NY 11771 Albany, New York 12223 John H.
Frye,* Chairman Oscar Paris
- Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.
S.
Nuclear Regulatory Commission ast West Highay U.S.
Nuclear Regulatory Bethesda, MD 20814 Commission 4350 East-West Towers Bethesda MD 20814
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David' A. Brownlee, Esq. -
Mr.'Stuart Diamond Kirkpatrick & Lockhart Business / Financial 1500 Oliver Building NEW YORK TIMES Pittsburgh, Pennsylvania 15222 229 W. 43rd Street
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Richard J. ZaH'nleuterf sq.
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. Deputy SpeciaMunsel to the Governor Executive Chamber Capitol, Room 229 Albany, New York 12224 (513)474-3522 By Telecopier.-
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