ML20236E636
| ML20236E636 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 07/28/1987 |
| From: | Mcmurray C KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20236E639 | List: |
| References | |
| CON-#387-4139 OL-3, NUDOCS 8708030032 | |
| Download: ML20236E636 (6) | |
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00C^: July 28,! 1987 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensino Board
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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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SUFFOLK COUNTY MOTION FOR RECONSIDERATION OF RULING ON SUFFOLK COUNTY EXHIBIT 2,1 Suffolk County moves this Board for reconsideration of the July 21, 1987 ruling denying admission of Suffolk County Exhibit 22 for identification (" Exhibit 22") into evidence.
Binding precedent of the Appeal Board contradicts the ruling of this Board and provides authority for the admission of the proffered exhibit into evidence without a sponsoring witness.
See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-520, 9 NRC 48 (1979).
In light of this clear precedent, which requires that Rule 902 of the Federal Rules of Evidence be applied in NRC proceedings, this Board's July 21 ruling was in error and should be reversed.
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BACKGROUND During the County's cross-examination of LILCO's witness, Edward B.
Lieberman, on July 21, 1987, Suffolk County offered into evidence Suffolk County Exhibit 22.
Tr. 18542.
The exhibit is a letter signed by the County Executive of Nassau County and the six Nassau County Supervisors, stating that Nassau County facilities, including the Nassau County Medical Center and the Nassau County Police Department, shall not be available for use j
by LILCO as part of its emergency plan.
Exhibit 22 bears a raised seal and the signature of a Nassau County official certifying that it is a public document of Nassau County.
A copy j
of Exhibit 22 is attached hereto as Attachment 1.
The County moved for admission of Exhibit 22 into evidence pursuant to Federal Rule of Evidence 902(1) and (2) which provide, in essence, that extrinsic evidence of authenticity need not be provided as a condition precedent to the admission of a public document bearing the seal of one authorized to certify the I
authenticity of such a document.
See also Notes of Advisory Committee regarding Rule 902.
Despite this Board's many previous rulings which have noted that this is an administrative hearing, and thus have applied evidentiary standards less stringent than
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those applied in federal courts, the Board declined to apply Rule 902 here.
Instead, the Board applied a more stringent standard than is used in federal courts, ruling that " absent a witness to tell us what (Exhibit 22] means, the Board will not accept it."
Tr. 18566.
In making this ruling, the Board committed error and broke with clear Appeal Board precedent on the matter.
DISCUSSION Federal Rule of Evidence 902 Permits Admission of Exhibit 22 Into Evidence Without Extrinsic Testimony Rule 902 of the Federal Rules of Evidence permits the admission of Exhibit 22 into evidence without extrinsic testimony by a sponsoring witness.
Rule 902 is binding upon NRC adjudicatory boards.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAD-520, 9 NRC 48 (1979)
(attached hereto as Attachment 2).
In Seabrook, the applicant offered a municipal code into evidence without a sponsoring witness.
The proffered exhibit bore the seal of the jurisdiction and the attestation of a town clerk.
In admitting the document into evidence the Appeal Board applied Rule 902, stating: ____ _ ___ _
We perceive no good reason why Rule 902 should not be followed in NRC adjudicatory proceedings.
Id. at 49.1/
!f'u r the rmo r e, the Appeal Board ruled that any questions regarding materiality or relevance may be left to argument in i
post-hearing submission.
Id. at 49-50 and n.2.
Thus, in the l
instant case, any questions regarding the materiality or relevance of Exhibit 22 -- if any such questions exist - go to 1
the weight, not the aditissibility, of the exhibit and can be
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argued in'the parties' respective findings.
Such questions, l
however, cannot preclude the admission into avidence of Exhibit 22.
See id.
.c 5 Gl/
It is important to note that the Appeal. Board did not rest its decision on the fact'that the documente at: issue was a copy of
-municipal ordinances.
Indeed, the Board declined to apply
. federal case law holding that ordinances arelthe proper subjects l
for. judicial notice.
Rather, the Appeal Board'de'cided to rest its decision on the much broader provisions of Rule 902 which apply to all documents which are properly < sealed oz = certified.
The Appeal Board admitted the document into evidence on the basis that it was a public document that was certified -- not that the document at issue consisted of municipal ordinances.
ALAB-520, 9 l
NRC at 49.
Accordingly, the Seabrook case cannot be distinguished from the instant case on the basis of the type of document at issue.
In both instances the documents at issue are public documents bearing the appropriate seal and certification; thus, Rule 902 is applicable and mustabe applied in both 4
. instances.-
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J In any event, the relevance of Exhibit 22 was plainly established by the cross-examination of Mr. Lieberman, as well as by LILCO's written testimony admitted by the Board.
That testimony demonstrates that LILCO relies upon police control (to be provided by the Nassau County Police Department under the LILCO Plan), and the implementation of specific traffic control strategies to effect the LILCO emergency plan.3/ r <hibit 22, however, indicates that the Nassau County Police Department is not available for purposes of the LILCO Plan.
Thus, the County has e: tablished a proper foundation and the exhibit should be admitted into evidence.
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For instance, Mr. Lieberman's testimony established that his analysis assumes police control to direct traffic movements which might not be made in the absence of police control.
- See, e.a.,
Tr. at 18539-18541.
l In addition, the Surrebuttal Testimony of Edward B.
Lieberman (July 20, 1987), at 3-4, explicitly concedes the reliance on police control. _
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CONCLUSION Based on the foregoing, Suffolk County respectfully requests reconsideration of the Board's ruling excluding suffolk County Exhibit 22.
Respectfully submitted, Martin Bradley Ashare Suffolk County Attorney Building 158 North County Complex Veterans Memorial Highway Hauppauge, New York 11788 s
ehffs'tophe'r' M.'
McMu r r&y Ronald R.
Ross KIRKPATRICK & LOCKHART 1800 "M"
- Street, N.W.
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South Lobby - Ninth Floor Washington, D.C.
20036-5891 Attorneys for Suffolk County July 28, 1987 k _ - _ _ _ _ _ _ - _ _ _ _ _ _ _ -