ML19331A288
| ML19331A288 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/22/1977 |
| From: | Hoefling R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007160878 | |
| Download: ML19331A288 (6) | |
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June 22, 1977
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UNITED STATES OF AMERICA.
NUCLEAR REGULATORY COMMISSION
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g BEFORE THE ATCMIC SAFETY AND LICENSING BOARD g;p]
3 609 In the Matter of
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juN CONSUMERS POWER COMPANY
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Docket Nos. _EO-329 Y'k
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. S0-330 (Midland Plant, Units 1 and 2)
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N NRC STAFF ANSWER TO " CONSUMERS POWER COMPANY'S RENEWED MOTION AND SUPPORTING MEMCRANDUM TO STRIKE PORTIONS OF THE TESTIMONY OF DR. RICHARD J. TIMM" Introduction On April 13, 1977, Consumers Power Company (Consumers) filed a " Motion and Supporting Memorandum to Strike Portions of the Testimony of Dr.
Richard J. Timm", a witness sponsored by Al' Intervenors Other Than Dow (Intervenors).
In its April 26, 1977 response, the NRC Staff (Staff) partially supported Consumers' Motion.
The Staff urged that certain legal conclusions and opinions be struck.1/ With regard to the remainder of Consumers' motion dealing with testimony which Consumers claimed beyond
-. the expertise of Dr. Timm, the Staff urged the development of a record on voir dire of the extent of Dr. Timm's qualifications.
Then, the Board and all parties would be in a better position to reach an informed judgment with regard to Consumers' motion to strike.
1/ Staff Response, p. 6.
THIS DOCUMENT CONTAINS POOR QUAUTY PAGES I
8cD71 loo 8N
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At the hearing, the Board overruled Coasumers' motion, subject to the right of any party to move to strike portions of the testimony at the conclusion of the cross-examination.
(Tr. 5254-55).
On June 13, 1977, Consumers renewed its motion, supported, in part, by the record develcped on voir dire of Dr. Timm.
Discussion The Staff stands on its earlier position that portions of the Timm testimony that are clearly legal conclusions and opinions should be struck.
Based on its previously stated position, Staff urges striking the following portions of the Timm testimony as identified by Consumers in its Attachment 3-1.
Pages 12 through 14, 18, 18, and 27 through 28.
2.
Dr. Timm's conclusion on page 42 relating to the scope of the cost-benefit analysis for this proceeding.
3.
Dr. Timm's conclusion on page 82 as to consideration of fuel cycle costs in this proceeding.
With regard to the remainder of Consumers' motion dealing with pages 22-23, 29-32, 34, 78-79 arJ 87-88 (as identified in Attachment A) of the Timm
_ testimony th'e Staff new supports the motion to strike.
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. 7 As was made clear on voir dire, Dr. Timm was not testifyi~ng as an expert in areas dealing with steam generator tube degradation and financial qualifications.
(Tr. 5359-62; 5364-67).
Rather, Dr. Timm was arguing the record evidence in these areas.
This is clear from the following statements by Intervenors' counsel:
Dr. Timm's testimony on the steam tubing issue did not consist of decisions by Dr. Timm, but, rather, by reference by Dr. Timm to statements made by Mr. Heins.
(Tr. 5362).
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I do not think that one has to be a financial expert in order to read what Consumers has said and conclude, for example, that Consumers has had financing problems, and they themselves have said so.
(Tr. 5367).
Dr. Timm, by the admission of his cwn ccunsel, is presenting argument, not testimony.
As such,. the " testimony" is improper for argument is counsel's role and not the role of an expert.
As Dr. Timm is'not providing the record with any expertise in the identified areas but merely arguing the record evidence already there, the " testimony" is improper snd should be struck.
Consumers includes in its motion to strike, Intervenors' Exhibits Mos.
41 through 45.
The Staff has already objected to the admission of Intervenors' Exhibits 41 through 45 into evidences / cn the grounds of relevance.
The Staff thus joins in Consumers' motion to strike these exhibi ts.
S/ ee " Staff Objecticns to Intervencrs' Exhibits and Itotion to Admit S
Evidence" dated June 2, 1977, pp. 6-7.
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Ccnclusion The Staff supports Consumers' motion to strike certain legal conclusions and opinions reached by Dr. Timm in his testimony.
The Staff further supports striking Intervenors' Exhibits Nos. 41 through 45 on grounds of relevance.
Respectfully submitted, 5
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Richard K. Hoefling Counsel for NRC Staff Dated at Bethesdr, Maryland this 22nd day af June,1977 O
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION BEFORE THE ATCMIC SAFETY AND LICENSING BOARD In the Matter of
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329
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50-330 (Midland Plant, Units 1 and 2)
)
CERTIFkCATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWER TO ' CONSUMERS POWER COMPANY'S RENEWED MOTION AND SUPPORTING MEMORANDUM TO STRIKE PORTIONS OF THE TESTIMONY OF CR. RICHARD J. TIMM'", dated June 22, 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 22nd day of June, 1977:
I Frederic J. Coufal, Esq., Chairman Atdmic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Dr. J. Venn Leeds, Jr.
Ms. Mary Sinclair Atomic Safety and Licensing Board 5711 Summerset Street 10807 Atwell Midland, Michigan.48640 Houston, Texas 77096 Dr. Emmeth A. Luebke
. Harold F. Reis, Esq.
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.
I Michigan Division '
Judd L. Baccq, Esq.
Midland, Michigan 48540 Consumers Power Company 212 West Michigan Avenue Mr. Steve Gadler Jackson, Michigan 49201 2120 Carter Avenue St. Paul, Minnesota 55108 a
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N R. Rex 'Renfrew, III, Esq.
Atomic Safety and Licensing David J. Rosso, Esq.
Appeal Panel Isham, Lincoln & Beale U. S. Nuclear Regulatory Commission One First National Plaza Washington, D. C.
20555 Suite 4200 Chicago, Illinois 60603 Docketing and Service Section Office of the Secretary Atomic Safety and Licensing U. S. Nuclear Regulatory Ccamission Board Panel Washington, D. C.
20555 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Norton Hatlie, Esq.
Attorney-at-Law P. O. Box 103 Navarre, Minnesota 55392 i
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suf Richard K. Hoefling 7 j/
Counsel for NRC Staff.
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