ML102420854
| ML102420854 | |
| Person / Time | |
|---|---|
| Site: | Prairie Island  |
| Issue date: | 08/30/2010 |
| From: | Doris Lewis Northern States Power Co, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-282-LR, 50-306-LR, ASLBP 08-871-01-LR-BD01, RAS 18493 | |
| Download: ML102420854 (6) | |
Text
August 30, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
) Docket Nos. 50-282-LR Northern States Power Co. ) 50-306-LR
)
(Prairie Island Nuclear Generating Plant, ) ASLBP No. 08-871-01-LR Units 1 and 2) )
NSPMS RESPONSE IN SUPPORT OF STAFFS MOTION IN LIMINE REGARDING TESTIMONY FILED BY THE PRAIRIE ISLAND INDIAN COMMUNITY I. INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c) and the schedule set forth in the Boards April 20, 2010 Memorandum and Order (Summarizing Prehearing Conference Call and Amending Hearing Schedule), Applicant Northern States Power Company, a Minnesota corporation (NSPM),
hereby files its response in support of the NRC Staffs Motion in Limine Regarding Testimony Filed by the Prairie Island Indian Community dated August 23, 2010 (Motion). The Motion asks that the Board exclude portions of the Direct Testimony of Christopher I. Grimes dated July 30, 2010 (Grimes Testimony) and PIIC Exhibit 2 Declaration of Christopher I. Grimes (November 23, 2009), from the evidentiary record of this proceeding and further preclude Mr.
Grimes from providing expert testimony on safety culture during the hearing.
NSPM fully supports the Staff Motion. Mr. Grimes is clearly unqualified to testify as an expert on the safety culture at an operating nuclear power plant such as the Prairie Island Nuclear Generating Plant (PINGP), the subject of the contention being litigated in this proceeding.
II. LEGAL STANDARDS The legal standards governing motions in limine in Commission proceedings are patterned after those in the Federal Rules of Evidence, from which guidance is drawn from time to time in appropriate circumstances. Final Rule: Changes to the Adjudicatory Process, 69 Fed.
Reg. 2,182, 2,187 (Jan. 14, 2004). In the area of expert witness testimony, an expert witness opinion is admissible as evidence in Commission proceedings:
only if (1) the opinion would assist the trier of facts in understanding the evidence or to determine a fact in issue; and (2) the opinion is based upon sufficient facts or data to be the product of reliable principles and methods that the witness applied to the facts of the case.
Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-05-04, 61 N.R.C. 71, 80 (2005) (citing Fed. R. Evid. 702) (Savannah River). A proffered witness can only qualify as an expert by his or her knowledge, skill, experience, training, or education. Id. (quoting Fed. R. Evid. 702). The party sponsoring the expert witness bears the burden of demonstrating the experts expertise in the field or area in which the expert offers an opinion. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-410, 5 N.R.C. 1398, 1405 (1977). Thus, [e]xpert opinion is admissible only if the affiant is competent to give an expert opinion and only if the factual basis for that opinion is adequately stated and explained in the affidavit. Savannah River, LBP-05-04, 61 N.R.C. at 81 (citing Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990) and United States v. Various Slot Machs. on Guam, 658 F.2d. 697, 700 (9th Cir. 1981)).
III. MR. GRIMES IS NOT QUALIFIED TO OFFER EXPERT TESTIMONY ON SAFETY CULTURE ISSUES Mr. Grimes resume indicates that at the time of his retirement from the NRC he was responsible for all of the reactor-related rulemaking activities, financial assurance, regulatory analysis, generic communications, generic project management, interoffice coordination, 2
licensing processes, and all of the licensing and inspection activities associated with research and test reactors. PIIC Exhibit 1 at 1. Mr. Grimes earlier activities included completion of the NRCs Systematic Evaluation Program, completion of the licensing of the Comanche Peak nuclear power plant, implementation of the Technical Specification Improvements Program, issuance of the improved Standard Technical Specifications, development of the process for converting licenses to improved technical specifications, development and implementation of the NRCs license renewal process, and improved application of risk-informed decisions in the regulatory process. He was a qualified Incident Investigation Team Leader and Emergency Officer in the NRCs Incident Response Program, and he led the Diagnostic Evaluation Team at the Oyster Creek nuclear plant. Id. None of the work experience listed by Mr. Grimes includes performance of safety culture assessments or evaluations, development of standards for performing such assessments or evaluations, or any other tasks that relate to safety culture.
Mr. Grimes educational background is in Nuclear Engineering, and his experience, as he describes it in his Declaration, includes familiarity with with a broad variety of reactor designs (PIIC Exhibit 2 at ¶ 4), nuclear reactor safety management (id. at ¶ 5), nuclear reactor license renewal and environmental impacts (id. at ¶ 6), rulemaking and regulatory analysis (id. at ¶ 7), and the operation of, and safety analyses associated with, pressurized water nuclear reactors (PWRs) (id. at ¶ 8). Again, while Mr. Grimes experience covers a variety of technical subjects, he does not indicate that he has ever been involved in safety culture determinations.
His failure to cite any prior exposure to safety culture issues is quite telling: one would expect that a safety culture expert would highlight his experience in the area. Mr. Grimes does not.
This is no surprise. The Commission defines safety culture as that assembly of characteristics, attitudes, and behaviors in organizations and individuals which establishes that as 3
an overriding priority, nuclear safety and security issues receive the attention warranted by their significance. Draft Safety Culture Policy Statement: Request for Public Comments, 74 Fed.
Reg. 57525 (2009). Thus, safety culture is an assembly of characteristics, attitudes, and behaviors in organizations and individuals. It is not a technical issue, and knowledge of reactor designs or safety analyses has little, if any, relevance to whether nuclear safety is an overriding priority in an organization. Therefore, any opinion of Mr. Grimes on the status of safety culture at PINGP would not assist the trier of facts in understanding the evidence or to determine a fact in issue regarding safety culture and thus should be excluded.1 For the above stated reasons, the Staff Motion should be granted and Mr. Grimes testimony should be limited as set forth in the Motion.
Respectfully Submitted,
/Signed electronically by Matias F. Travieso-Diaz/
David R. Lewis Matias F. Travieso-Diaz PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Tel. (202) 663-8148 Counsel for Northern States Power Co.
Dated: August 30, 2010 1
Thus, for example, Mr. Grimes is not qualified to offer the opinion that [t]he failure of the applicant to correct the potential damage to the containment integrity resulting from the refueling cavity leaks, the safety culture weaknesses associated with the causal factors described in Information Notice 2009-11, the series of White findings associated with one or both of the PINGP units, the identification of substantive crosscutting issues in the area of human performance, the serious concerns identified by NRC inspectors with the applicants corrective action program, and failure to effectively manage the plant design and effectively resolve potentially the safety-significant flooding issues identified 20 years ago, are all indicative of a weak safety culture at PINGP. Direct Testimony of Christopher I. Grimes (July 30, 2010), A44 at 19-20. Such an opinion must be excluded.
4
August 30, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
) Docket Nos. 50-282-LR Northern States Power Co. ) 50-306-LR
)
(Prairie Island Nuclear Generating Plant, ) ASLBP No. 08-871-01-LR Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that a copy of NSPMs Response in Support of Staffs Motion in Limine Regarding Testimony Filed by The Prairie Island Indian Community, dated August 30, 2010, was provided to the Electronic Information Exchange for service on the individuals listed below, this 30th day of August, 2010.
Administrative Judge Administrative Judge William J. Froehlich, Esq., Chair Dr. Gary S. Arnold Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Email: wjf1@nrc.gov Email: gxa1@nrc.gov Administrative Judge Secretary Dr. Thomas J. Hirons Attn: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Mail Stop O-16 C1 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 secy@nrc.gov; hearingdocket@nrc.gov Email: thomas.hirons@nrc.gov
Office of Commission Appellate Adjudication Philip R. Mahowald, Esq.
Mail Stop O-16 C1 General Counsel, Prairie Island Indian U.S. Nuclear Regulatory Commission Community Washington, DC 20555-0001 5636 Sturgeon Lake Road E-mail: ocaamail@nrc.gov Welch, MN 55089 pmahowald@piic.org Beth N. Mizuno, Esq.
Mary Baty Spencer, Esq.
Brian G. Harris, Esq.
Maxwell C. Smith, Esq.
Office of the General Counsel Mail Stop O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: beth.mizuno@nrc.gov; mary.baty@nrc.gov; brian.harris@nrc.gov; maxwell.smith@nrc.gov
/Signed electronically by Matias F. Travieso-Diaz/
Matias F. Travieso-Diaz