ML19330A141
| ML19330A141 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/26/1977 |
| From: | Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007150911 | |
| Download: ML19330A141 (8) | |
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THIS DOCUMENT CONTAINS
,d P00R QUAUTY PAGES 4/26/77 UNITED STATES OF ' AMERICA NUCLEAR REGULATORY COMMISSION OAR 0_
BEFORE THE ATOMIC SAFETY AND LICE
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In the Matter of
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Docket Nos. 50-329
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50-330 CONSUMERS POWER COMPANY.
)
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(Midland Plant, Units 1 and 2)
NRC STAFF RESPONSE TO LICENSEE'S TO STRIKE PORTIONS OF THE TESTIMONY
_Introduc tion.
Dow Chemical Company (Interve On February 7, 1977, Intervenors other than Several dates have Timm.
filed the written testimony of Dr. Richard J.d cross-examin bee [1scheduledforDr.Timm'sappearanceanhas yet to appear.
Due to a variety of circumstances, Dr. Timm d) by its Order of April 12, proceeding.
The Atomic Safety and Licensing Board (Boar Dr. Timm's app 1977 has re-set May 9, 1977 as the date for E the Licensing B d
Consumers Power Company (Licensee) has move to his appearance.
The i
strike portions of Dr. Timm's testimony pr ord suggests the re Staff supports a part of Licensee's motion anption of the e the motion be held in abeyance pending resum U " Motion and Supporting Memorandum 13, 1977 Timm" filed on April Portions of the Testimony of Dr. Richard J.
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. Discussion Licensee's motion addresses two categories of the Tim testimony which it perceives to be defective. The first category consists of those portions of the testimony which deal with legal, rather than factual, questions.2_/ The second category consists of those portions of the testimony which the Licensee believes fall outside the area of Dr.
Timm's competence as an expert witness.1/
With regard to the first category, the Staff supports the Licensee's motion.
Dr. Timm has been offered by Intervenors as an expert witness and an expert may testify only to those facts and opinions within his area ofexpertise.S And while it may be argued that a particular fact or factual opinion may be beyond the expert's area, it is clear that a legal opinion is always beyond the expert's area.
Legal conclusions and opinion are appropriate subjects of a motion to strike.
The record in this proceeding would be best served by limiting testimony to facts and factual opinions of experts qualified in their particular areas.E 2/ Page 4 of Licensee's motion 1/ Ibid.
O ederal Rules of Evidence, Rule 702, Testimony by Experts.
F N It should be noted that the record in this proceeding is already unduly burdened by the characterizations and statements of Intervenor's Counsel.
See Staff's " Motion for Censure of Myron M.
Cherry" dated March 25, 1977.
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. The Staff has examined each of the portions of Dr. Tim's testimony
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identified by the Licensee as consisting of legal conclusions and supports the Licensee's motion that these portions be stricken.
Dr. Tim's response et pages 12 to 14 / of his testimony is clearly 6
incompetent as it consists of Dr. Tim's personal understanding of the legal issues in this proceeding and the legal positions of the parties.
The incompetence of this portion of Dr. Tim's testimony is highlighted on page 14 where he opines that:
...the conclusion is inescapeable that construction must halt in order to permit a fair and objective analysis of all of the important issues and information.
This is a clear legal conclusion to be reached only after legal argument based on the factual record in this proceeding and upon application of the standards of Coalition for Safe Nuclear Power, et al. v. U.S.A.E.C., et al.
463 F.2d 954 (D.C. Cir., 1972).
Dr. Tim was offered as an expert and his role is limited to providing i
facts and expert opinion based on facts from which it may be argued that a suspension is in order.
But, it is not for Dr. Tim to make such arguments.
i U All page references to Dr. Tim's testimony refer to the underlined portions of his testimony as presented in Attachment A to Licensee's action.
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. On pages 18-19, Dr. Tim carries forward his misplaced role as advocate.
He feels the need to identify the factors and considerations which should guide the Comission in reaching a decision in this proceeding.
Again this portion of his testimony is clear legal argument and should be stricken.
On pages 27-28, Dr. Tim reaches conclusions as to what record evidence is required to support a finding which he considers relevant.
Dr. Tim in essence tells us what the legal issue is, in his view, and then goes on to elaborate on why the record evidence is not adequate to support a finding in Licensee's favor on that issue.
This is pure legal argument and should be stricken.
The Licensee argues in paragraph 6 on page 8 of its motion that certain other portions of Dr. Timm's testimony should be stricken as consisting of legal conclusions.
The Licensee identifies a footnote on page 34 as one such portion. While Dr. Tim does reach an improper conclusion regarding relevancy, the bulk of the footnote deals with expert analysis and opinion and would appear as proper subjects for voir dire and cross-examination.
The Staff would oppose striking this portion of Dr. Timm's testimony.
Dr. Tim's conclusion on page 42 that the one day in 10 year criteria should be subjected to a cost-benefit analysis at the remand hearing is a legal conclusion which should be stricken.
Finally, contrary to the Licensee's position, we think that the bulk of Dr. Tim's testimony
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, on pages 81 and 82 relating to nuclear fuel costs is again purportedly expert analysis and opinion and proper subjects of voir dire and cross-eamination.
However, the last sentence on page 82 of Dr. Timm's testimony, as identified by the Licensee, does deal with a legal conclusion as to Dr. Timm's views on the consideration of fuel cycle costs in this proceeding and should be stricken.
The second category of testimony which the Licensee seeks to be stricken consists of those portions of Dr. Timm's testimony which, in the Licensee's view, are beyond the expertise of Dr. Timm. While the Staff agrees that, based on the professional qualifications presented by Dr. Timm in his testimony, Dr. Timm is testifying beyond his expertise in many areas, this can only be established by voir dire on the record.
Dr. Timm has
.i 4' reached a great number of. conclusions in his testimony.
While in man."
instances, Dr. Timm's expertise in these area does not appear on the face of his testimony, voir dire may indeed establish his competence to testify in these areas.
In the Staff's view, testimony of Dr. Timm identified by the Licensee in paragraphs C, E, F 2nd H of its brief as being beyond the expertise of Dr. Timm, may be proper testimony.
Only voir dire can establish whether this testimony should be stricken.
, Conclusion The Staff supports that portion of the Licensee's motion which seeks to strike portions of the testimony of Dr. Tim as consisting of legal arguments and conclusions which Dr. Tim is not qualified to make.
Specifically, the Staff supports striking the following portions of the Tim testimony as identified by the Licensee in its Attachment A:
1.
Pages 12 to 14, 18 to 19 and 27 to 28.
2.
Dr. Tim's conclusion on page 42 relating to the scope of the cost-benefit analysis for nis proceeding.
3.
Dr. Tim's conclusion on page 82 as to consideration of fuel cycle costs in this proceeding.
With regard to the remainder of the Licensee's motion dealing with testimony which may be beyond Dr. Timm's expertise, the Staff would oppose licensee's motion.
The Licensee's motion i, more properly made upon development of a record or voir dire as to the extent of Dr. Tim's qualifications. At that time the Board and all parties will be in a better position to reach an informed judgment.
Respectfully subm'tted, l' i Nf c-V Richard K. Hoefli g Counsel for NRC $taffe Dated at Bethesda, Maryland this 26th day of April, 1977
s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CONSUMERS POWER COMPANY
)
Docket Nos. 50-329
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50-330 (MidlandPlant, Units 1and2)
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CERTIFICATE OF SERVICE 1 h'ereby certify that copies of "NRC STAFF RESPONSE TO LICENSEE'S MOTION TO STRIKE PORTIONS OF THE TESTIMONY OF DR. RICHARD J. TIMM" dated April 26,-
1977 in the above-captioned proceeding, have been served on the following by deposit in the United States mail, first class or air mail, this 26th day of April, 1977:
Frederic J. Coufal, Esq., Chairman Honorable Curt T. Schneider Atomic Safety and Licensing Board Attorney General U. S. Nuclear Regulatory Commission State of Kansas Statehouse Washington, D. C.
20555 Topeka, Kansas 66612 Dr. J. Venn Leeds, Jr.
Ms. Mary Sinclair Atomic Safety and Licensing Board 5711 Summerset Street 10807 Atwell Midland, Michigan 48640 Houston, Texas 77096 Harold F. Reis, Esq.
Dr. Emmeth A. Luebke Robert Lowenstein, Esq.
Atomic Safety and Licensing Board Lowenstein, Newman, Reis &
U. S. Nuclear Regulatory Commission Axelrad
. Washington, D. C.
20555 1025 Connecticut Avenue Washington, D. C.
20036 Myron M. Cherry, Esq.
1 IBM Plaza L. F. Nute, Esq.
Chicago, Illinois 60611 Dow Chemical, U.S.A.
Michigan Division '
Judd L. Bacon, Esq.
Midland, Michigan 48640 Consumers Power Company 212 West Michigan Avenue Mr. Steve Gadler Jackson, Michigan 49201 2120 Carter Avenue St. Paul, Minnesota 55108
_a c
, R. Rex Renfrow, III, Esq.
Atomic Safety and Licensing David J. Rosso, Esq.
Appeal Panel Isham, Lincoln & Beale U. S. Nuclear Regulatory Comission One First National Plaza Washington, D. C.
20555 Suite 4200 Chicago, Illincts 60603 Docketing and Service Section Office of the Secretary Atomic Safety and Licensing U. S. Nuclear Regulatory Commission Board Panel Washington, D. C.
20555 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Il c
' Richard K. Hoefling
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Counsel for NRC Staff r
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