ML102450597
| ML102450597 | |
| Person / Time | |
|---|---|
| Site: | Prairie Island  |
| Issue date: | 09/02/2010 |
| From: | William Froehlich Atomic Safety and Licensing Board Panel |
| To: | NRC/OGC |
| SECY RAS | |
| References | |
| 50-282-LR, 50-306-LR, ASLBP 08-871-01-LR-BD01, RAS 18538 | |
| Download: ML102450597 (7) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
William J. Froehlich, Chairman Dr. Gary S. Arnold Dr. Thomas J. Hirons In the Matter of Docket Nos. 50-282-LR and 50-306-LR Northern States Power Co. (formerly Nuclear Management Company, LLC) ASLBP No. 08-871-01-LR-BD01 (Prairie Island Nuclear Generating Plant, Units 1 and 2) September 2, 2010 MEMORANDUM AND ORDER (Denying Motion in Limine)
On August 23, 2010, the NRC Staff filed a motion in limine to exclude from the evidentiary record the testimony of Christopher I. Grimes, an expert witness for Prairie Island Indian Community (PIIC or Intervenors).1 Specifically, the NRC Staff moved to exclude portions of Mr. Grimes direct testimony (submitted July 30, 2010) and portions of PIIC Exhibit 2, the Declaration of Christopher I. Grimes (dated November 23, 2009).2 The NRC Staff further moved to preclude Mr. Grimes from providing expert testimony on safety culture during the upcoming evidentiary hearing. The NRC Staff maintains that PIIC did not demonstrate Mr.
Grimes qualification to provide expert testimony on safety culture by knowledge, training, or experience, and his testimony is too conclusory to assist the Board in understanding the evidence in this proceeding.3 The Applicant, Northern States Power Company (NSPM), filed a 1
NRC Staffs Motion in Limine Regarding Testimony Filed by the Prairie Island Indian Community (Aug. 23, 2010) [hereinafter NRC Staff Motion in Limine].
2 Id. at 1.
3 Id.
response in support of the NRC Staff motion on August 30, 2010.4 The PIIC filed a response in opposition to the NRC Staff motion on August 30, 2010.5 For the reasons set forth below, the NRC Staffs motion is denied.
A. Background At the upcoming evidentiary hearing, the Board will question the parties about whether or not the safety culture at the Prairie Island Nuclear Generating Plant (PINGP) is adequate to provide reasonable assurance that PINGP can manage the effects of aging during the requested period of extended operation. 6 Intervenors maintain that the Applicant has not provided reasonable assurance that it can sufficiently manage the effects of aging infrastructure for a license renewal, as required by 10 C.F.R. § 54.29(a).7 To support admission of this contention, Intervenors rely on recent NRC inspection reports and enforcement actions to demonstrate a weak safety culture at PINGP.8 In advance of the evidentiary hearing, Intervenors submitted both testimony and a prefiled exhibit from Mr. Grimes to support their position.9 The NRC Staff requests that the Board exclude Mr.
Grimes testimony in A15-16, A18-19, A23, A31-32, A34, A3, A39, A41-45, excluding paragraphs 10, 13, 21, and 24-25 of PIIC Exhibit 2, be excluded from the record.10 B. Legal Standards In 10 C.F.R. part 2 licensing proceedings, the presiding officer rules on offers of proof and decides whether to receive evidence.11 Although not bound by the Federal Rules of 4
NSPMs Response in Support of Staffs Motion in Limine Regarding Testimony Filed by the Prairie Island Indian Community (Aug. 30, 2010) [hereinafter Applicants Response].
5 Prairie Island Indian Communitys Response in Opposition to NRC Staffs Motion in Limine (Aug. 30, 2010) [hereinafter PIICs Response].
6 Licensing Board Order (Narrowing and Admitting PIICs Safety Culture Contention) (Jan. 28, 2010) (ADAMS Accession No. ML100280537) (unpublished).
7 PIICs Response at 2.
8 Id. at 2-3.
9 Grimes Decl., PIIC Exh. 2.
10 NRC Staff Motion in Limine at 3-4.
11 10 C.F.R. §2.319(d).
Evidence, licensing boards often follow their general principles and guidance when determining whether a witness is qualified to present expert testimony.12 Under Rule 702, a witness may qualify as an expert by knowledge, skill, experience, training, or education.13 An expert opinion is admissible 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.14 The experts opinion must be based on the methods and procedures of science rather than on subjective belief or unsupported speculation, but the method for forming his opinion need not be generally recognized in the scientific community.15 If an expert witnesss qualifications are challenged, the proponent of the expert has the burden of demonstrating that the expert possesses sufficient expertise to assist the trier of fact.16 C. Analysis PIIC asserts in its response that Mr. Grimes education, training, and experience as a reactor safety expert will assist the Board in its assessment of the safety culture at PINGP.17 Portions of Mr. Grimes proffered testimony describe his qualifications, training, and experience, which includes 32 years of employment with the NRC and its predecessor, the Atomic Energy Commission. PIIC states that as a former regulator and Senior Executive Service-level manager, Mr. Grimes has extensive experience with reactor oversight, reactor safety reviews and assessments, aging management programs, and the components of safety culture at 12 See, e.g., Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-05-04, 61 NRC 71, 80-81 (2005); 10 C.F.R. §2.319(d).
13 Fed. R. Evid. 702.
14 Id.
15 Savannah River, LBP-05-04, 61 NRC at 80 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-90 (1993)).
16 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), LBP-05-22, 62 NRC 328, 356 (2003) (citing Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 &
2), ALAB-410, 5 NRC 1398, 1405 (1977)).
17 PIICs Response at 5-6.
nuclear power plants.18 PIIC further asserts Mr. Grimes led various evaluations at NRC-licensed facilities, which required attention to and evaluation of the facilities safety procedures.19 Both the Applicant and the NRC Staff concede that Mr. Grimes acquired extensive experience with license renewal and the operation and safety of pressurized water reactors during his career at the NRC.20 However, the NRC Staff complains that Mr. Grimes bachelors degree in nuclear engineering does not provide the necessary educational experience to opine on safety culture and he does not have first-hand knowledge of the facts of this case because he was not involved with the events he described in his testimony.21 We do not find these arguments compelling. Considered alone, a bachelors degree in nuclear engineering may not be sufficient experience to qualify a person as an expert witness on safety culture at nuclear power plants. However, the standard for qualification of expert witnesses is not confined solely to formal education. A witness may be qualified to testify and render opinions based on knowledge, skill, experience, training, or education. PIIC maintains that Mr. Grimes formal education and 32 years of training and experience at the NRC are more than sufficient to make his opinion relevant and helpful to this Boards consideration of the safety culture at PINGP.
Further, no relevant case law suggests that first-hand knowledge through involvement with the events at issue is a requirement for qualification of expert witnesses. Certainly, the Federal Rules of Evidence require some first-hand knowledge for the admission of testimony by lay witnesses, but Mr. Grimes is presented as an expert witness for PIIC. Therefore, we decline to strike portions of Mr. Grimes submitted testimony and preclude him from further participation in this hearing. The Board will evaluate his statements, like those of all witnesses, for what they 18 See PIIC Exh. 2, Grimes test. at A24, A25, A26.
19 PIIC Response at 7-8.
20 NRC Staff Motion in Limine at 3; Applicants Response at 3.
21 NRC Staff Motion in Limine at 3.
are worth in deciding the sole admitted contention. The NRC Staffs motion in limine to exclude portions of Mr. Grimes direct testimony and PIIC Exhibit 2 is hereby denied.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD22
/RA/
William J. Froehlich, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland September 2, 2010 22 Copies of this memorandum and order were sent this date by the agencys E-Filing system to counsel for (1) Applicant NSPM, (2) Intervenor PIIC, and (3) NRC Staff.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
NORTHERN STATES POWER COMPANY )
)
) Docket Nos. 50-282-LR
) 50-306-LR (Prairie Island Nuclear Generating Plant, )
Units 1 and 2) )
)
(License Renewal) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (DENYING MOTION IN LIMINE) have been served upon the following persons by Electronic Information Exchange.
Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Hearing Docket E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission. U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop T-3F23 Mail Stop O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Edward Williamson, Esq.
Administrative Judge William J. Froehlich, Beth Mizuno, Esq.
Chairman Brian G. Harris, Esq.
E-mail: wjf1@nrc.gov Maxwell Smith, Esq.
Mary Baty, Esq.
Administrative Judge Gary S. Arnold Brian Newell E-mail: gary.arnold@nrc.gov E-mail: elw2@nrc.gov beth.mizuno@nrc.gov Administrative Judge Thomas J. Hirons brian.harris@nrc.gov E-mail: thomas.hirons@nrc.gov maxwell.smith@nrc.gov mary.baty@nrc.gov Matthew Rotman, Law Clerk bpn1@nrc.gov E-mail: matthew.rotman@nrc.gov OGC Mail Center : OGCMailCenter@nrc.gov Kara Wenzel, Law Clerk E-mail: kara.wenzel@nrc.gov
2 DOCKET NOS. 50-282 AND 50-306-LR LB MEMORANDUM AND ORDER (DENYING MOTION IN LIMINE)
Xcel Energy Services, Inc. Prairie Island Indian Community 414 Nicollet Mall 5636 Sturgeon Lake Road Minneapolis, Minnesota 55401 Welch, Minnesota 55089 Peter M. Glass, Counsel for Nuclear Philip R. Mahowald, Esq.
Management Company, LLC E-mail: pmahowald@piic.org Joyce A. Gasca Jean Borrett E-mail: peter.m.glass@xcelenergy.com E-mail: Joyce.A.Gasca@xcelenergy.com E-mail: jean.l.borrett@xcelenergy.com Nuclear Management Company, LLC Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N. Street, NW Washington, DC 20037-1122 David R. Lewis, Esq.
Matias F. Travieso-Diaz, Esq.
Stefanie Nelson George, Esq.
Alison M. Crane, Esq.
Jason B. Parker, Esq.
E-mail: david.lewis@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com stefanie.george@pillsburylaw.com alison.crane@pillsburylaw.com jason.parker@pillsburylaw.com
[Original signed by Evangeline S. Ngbea ]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 2nd day of September 2010