ML19224D127

Cincinnati Gas & Electric Motion to Strike Intervenor DB Fankhauser 790601 Testimony for June Hearing.Fankhauser Comments & Conclusions Are Argumentative & Unsupported by Law or Facts.Certificate of Svc Encl

ML19224D127
Person / Time
Site:	Zimmer
Issue date:	06/09/1979
From:	Conner T CONNER, MOORE & CORBER
To:
References
NUDOCS 7907100708
Download: ML19224D127 (6)

Text

, .

\'l!(;

pi7p7

.,C D (v;7;3 g, (g~.-

UNITED STATES OF AMERICA g , M.U NUCLEAR REGULATORY COMMISSION ~ R s 0l I' -

e\ b ' rm t BEFORE THE ATOMIC SAFETY AND LICENSING BOARC-~

6, bY b.'/

In the Matter of ) d

\ ,x eM

) /*-Q[#p64V The Cincinnati Gas & Electric ) Docket No. 50-358 Company, et al. )

)

(Wm. H. Zimmer Nuclear Power )

Station) )

APPLICANTS' MOTION TO STRIKE "INTERVENOR FANKHAUSER'S TESTIMONY FOR JUNE HEARING" On June 1, 1979, Intervenor Dr. David B. Fankhauser filed a document captioned "Intervenor Fankhauser's Testimony for June Hearing." Applicants, The Cincinnati Gas & Electric Company, et al., hereby move that this document be stricken on the grounds that it is not competent evidence, is insufficient and i.. proper on its face, fails to meet the requirements of the Board's Order of April 6, 1979 that written testimony related to Contention 6 be filed by June 1, 1979 and no founda-tion of expertise is shown for opinions indicated therein.

Section 2.743(c) of the Commission's Rules of Practice, 10 C.F.R. Part 2, provides that "only relevant, material and reliable evidence ahich is not unduly repetitious will be admitted."

Moreover, Section 2.743(b) of the Commission's regulations p ro vide s , in pertinent part, that "[t}he parties shall submit direct testimony of witnesses in written form, unless otherwise ordered by the presiding officer on the basis of objections M5 2 N ';

79021ocasg'

. presented." The direct testimony of Dr. David B. Fankhauser in written form, offered as evidence in this proceeding on his admitted Contention 6, was required to be filed on June 1, 1/

1979. The parties to this proceeding were served with a document alternatively designated as "Intervenor Fankhauser's Testimony," "a summary c 'ntervenor Fankhauser's prepared testimony," or " Notes for Testimony" by Dr. Fankhauser. It is clear that, no matter how this document is characterized, it is not written testimony as required by the Commission's rules or the Board's Order. The " Notes" consist largely of incomplete sentences and do not express cohesive thoughts, let alone testimony, on Contention 6.

This matter was specifically dealt with by the Board at the prehearing conference on May 13, 1979. The Applicant noted

he apparent misunderstanding of Intervenor's counsel that only a " summarization of testimony" would have to be i led. In its ruling, the Board was quite clear that a summary would be filed in the response to discovery by May 28, but that "the testimony, nevertheless, would be due on June 1 or June 8 in connection with certain of their contentions." The Chairman in fact interrogated Intervenor's counse] to assure that this point was understood and received an affirmative reply. (Tr. 461-462) Accordingly, 1/ Licensing Board's " Order Determininc Schedule," dated April 6, 1979.

2 L r, JJJ '3 t > C)

l. ! .

no justification exists for the proffering of the present

" Motes."

At the prehearing conference, the Board ruled that Dr. Farkhauser's Contention 1 involving spent fuel was dismissed (Tr. 455) and that for the present hearing only his Contention 6 as to hypothetical dose levels at the Moscow Elementary School would be considered. Nevertheless, the " Notes" submitted by the Intervenor appear to deal entirely with the issue of spent fuel as set forth in Contention 1, except for the last two sentences.

These comments deal with the need for power which is not even a contention sought by or granted to Dr. Fankhauser. The contention of Miami Valley Power Project on the need for the Zimmer plant was dismissed by the Board. (Tr. 445) -2/

The " Resume" of Dr. Fankhauser attached to the " Notes" fails to establish his qualifications as an expert on the calcu-lation of dose levels and thus he may not sponsor this testimony.

The " possession of the required qualifications by a particular person offered as a witness, must be expressly shown by the party offering him." 2 Wigmore, Evidence S560, at pp. 640-41 (ed Ed. 1940) (emphasis in original), quoted in Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

A LAB- 410 , 5 NRC 1398, 1405 (1977). Opinion testimony is ad-missible only when presented by an expert witness and " supported 2/ Even if this matter had remained in issue, Dr. Fank'iaus e r may not submit direct testimony with regard ta anot her intervenor's contention. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ILAB-244, 8 AEC 857, 869 n. 17 (1974), aff'd CLI-75-1, 1 NRC 1 (1975).

2 i-

by a rational explanation which reasonable men could accept as more probably correct than not correct." Nanda v. Ford Motor Co.,

509 F.2d 213, 219 (7th Cir. 1975), cited in Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2),

et al., Docket Nos. 50-514 and 50-515, " Order Denying Intervenors' Motion to Strike Certain Testimony E Gordon T. C. Taylor,"

November 4, 1976, unreported.

In addition to being irrelevant to Contention 6, most of the matters contained in Dr. Fankhauser's " Notes" are incompetent and immaterial being based merely upon unsupported statements or conclusions from newspaper reports and political speeches. No foundation is shown that the authors of the referenced statements had any qualifications to make them, or that they in any way

. elated such statements to Zimmer. Essentially, most of Dr. Fankhauser's comments are simply argumentative and unsupported conclusions which are of no probative value.

For these reasons, the proffered testimony of Dr. Fankhauser should be stricken.

Respectfully submitted, CONNER, MOORE & CORBER d

V/% -i! [c> wun . J-Troy B. Zonner, Jr.

Counsel for the Applicants June 9, 1979 liJ u, s E '? O 7, ai

UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION In the Matter of )

)

The Cincinnati Gas & Electric ) Docket No. 50-358 Company, et al. )

)

(William H. Zimmer Nuclear Power )

Station) )

CERTIFICATE OF SERVICE Strike I hereby certify that copies of " Applicants ' Motion to

'Intervenor dated June 9, 1979,Fankhauser's Testimony for June Hearing, '"

in the captioned matter, have been served upon the 9 th day o ffollowing by deposit in the United States mail this June , 1979:

Charles Bechhoefer, Esq. Michael C. Farrar, Esq.

Chairman, Atomic Safety Atomic Safety and Licensing and Licensing Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Frank F. Hooper, Member Chairman, Atomic Safety and Atomic Safety and Licensing Licensing Appeal Board Panel Board U.S. Nuclear Regulatory School of Natural Resources Commission University of Michigan Washington, D.C. 20555 Ann Arbor, Michigan 48109 Mr. Glenn O. Bright, Member Chairman, Atomic Safety and Licensing Scard Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Charles A. Barth, Esq.

Richard S. Salzman, Esq.

Counsel for the NRC Staff Chairman, Atomic Safety and Office of the Executive Legal Director Licensing Appeal Scard U.S. Nuclear Regulatory U.S. Nuclear Regulatory Ccamission Ccmmission Washington, D.C. 20555 Washington, D.C. 20555 William J. Moran, Esq.

Dr. Lawrence R. Quarles General Counsel Atomic Safety and Licensing Cincinnati Gas & Electric Appeal Ecard -

Company U.S. Nuclear Regulatory Post Office Ecx 960 Ccmmission Cincinnati, Ohio 45201 Washington, D.C. 20555 7Fr '00 JaJ L/U

Mr. Chase R. Stephens Leah S. Kosik, Esq.

Docketing and Service Section Attorney at Law Office of the Secretary 3454 Cornell Place U.S. Nuclear Regulatory Cincinnati, Ohio '5220 Commission Washington, D.C. 20555 John D. Woliver, Esq.

Clermont County Community William Peter Heile, Esq. Council Assistant City Solicitor Box 181 City of Cincinnati Batavia, Ohio 45103 Box 214 Cincinnati, Ohio 45202

& a[4 /

Trdy B. Conner, Jr.

'II

') G

.') J ~f L'G '