ML19331A818

Memorandum in Support of Util 770621 Motion Seeking to Strike Portions of Rj Timm 770526 Affidavit Re Util Rebuttal Testimony.Contrary to Timm Competence as Expert Witness, Affidavit Deals W/Legal Questions.Certificate of Svc Encl

ML19331A818
Person / Time
Site:	Midland
Issue date:	06/21/1977
From:	Gibbs M, Renfrow R, Rosso D CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19331A815	List: ML19331A814 ML19331A818
References
NUDOCS 8007230848
Download: ML19331A818 (9)

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(3 LJ 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

) 50-330 (Midland Plant, Units 1 and 2) )

)

)

MOTION AND SUPPORTING MEMORANDUM OF CONSUMERS POWER COMPANY TO STRIKE PORTIONS OF THE AFFIDAVIT OF RICHARD J. TIM'-i IN RESPONSE TO RE3UTTAL TESTIMONY FILED BY CONSUMERS POWER. COMPANY AND THE NUCLEAR REGULATORY COMMISSION STAFF Consumers Power Company (" Licensee") moves the Atomic Safety and Licensing Board (the " Board") to strike those portions of the " Affidavit of Richard J. Timm in

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Response to Rebuttal Testimony Filed by Consumers Power Company and the Nuclear Regulatory Commission Staff" (Timm Affidavit), filed on behalf of Intervenors other than Dcw Chemical Company on May 26, 1977, which are legal conclusions and therefore irrelevant and not within the expertise of the witness. The portions of Dr. Timm's Affidavit which sre the subject of this motion to strike are detailed below, and include material in Paragraphs 36 and 43. Attachment A to .

this Motion consists of a copy of the pages in cuestien en which have been unferlined the portions which Licensee moves to strike.

.8007230$$

s I. Applicable Evidentiarv Standards Licensee's objections are directed to the fact that portions of the Timm Affidavit deal with legal, rather than factual questions and are therefore irrelevant.

Furthermore, they are not admissible as legal questions do not fall within Dr. Timm's areas of competence as an expert witness. . -

The basic principle regulating the admissibility of evidence is set forth in 10 C.F.R. 52.743(c) as follows:

Only relevant, material and reliable evidence which is not unduly repetitious will be admitted.

Immaterial or irrelevant parts of an admissible document will be segregated and' excluded so far as is practicable.

The NRC regulations also state that "[i}rrelevant material prepared testimony submitted in advance under 52.743 (b) may be subject to a motion to strike," SV(d) (7) of Appendix .

A to 10 C.F.R. Part 2.

Although the Federal Rules of Evidence are not strictly applicable to administrative proceedings, which have generally been subject to less stringent evidentiary requirements, Atomic Safety and Licensing Boards have tradi-tionally looked to the Federal Rules for guidance in inter' preting and applying the Commission's evidentiary rules.

See, e.g., Illinois Power Company, (Clinton Power Station, Units 1 and 2, L3P-75-59, NRCI-75/9, pp.579-630 (September '

1 30, 1975). '

The Federal Rules' definition of " relevant evidence" provides an appropriate benchmark for judging what is relevant I

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und r 10 C.F.R. S2.743(c):

' Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the deter-mination of the action more probable or less probable than it would be without the evidence. Rule 401. Definition of 'Rele-vant Evidence' (emphasis supplied) .

The clear import of the rule is that evidence must relate to a fact that is of concern in the proceeding, rather than.to the legal issues involved.- As Professor moore states in his -

treatise, "If an issue is one of law it is the subject of judicial notice and byond the domain of evidence,' 10 J.

Mcore, Federal Practice S400.0l[1], at IV-3 (2d ed. 1976).

The principle that testimonial opinien of law should be excluded is similarly endorsed by Professor Wigmore, VII J.

Wigmore, Evidence S1952, at 81-82 (3d ed. 1940).

A further examination of the Federal Rules confirms .

the view that testimony, including the opinion testimony of -

both expert and lay witnesses, must be related to the facts at issue in the case:

If scientific, technical, or other special-ized knowledge will assist the trier of fact to understand the evidence or to deter-mine a fact in issue, a witness cualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise.

Rule 702. Testimony of Experts (emphasis supplied).

4 If the witness is not testifying as an expert, his testimony in the form of opin-ions or infererces is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to clear under-standing of his testimony or the deter-mination of a fact in issue. Rule 701, opinion Testimony by Law Nitnesses (emphasis supplied).

s Baend upon ths abova rules, and the basic definition of relevant evidence, it is clear that the speculations of a non-lawyer witness on legal issues have no place in the record of an administrative proceeding.

Additionally, speculations on the law, even if they were relevant to this proceeding, are beyond Dr. Timm's competence as a witness. As Rule 702 demonstrates, a witness must be qualified by knowledge, skill, experience, training ~

or education in order to give expert opinions. As Dr. Timm is not a lawyer, he is clearly not qu:lified to testify as an expert in this area.

II. Application of Evidentiary Standards to Dr. Timm's Affidavit A. The first paragraph to which Licensee objects deals with Dr. Timm's view of the law regarding whether sunk costs may be considered in restriking the cost-benefit balance for the Midland Plant. (Timm Affidavit at Paragraph 36.) The witness' understanding of what the Court of Appeals has prescribed in this area is not a relevant fact in this proceeding; such speculation on the law by a lay witness should be stricken as irrelevant, for it is well-established that testimony with regard to the status of the law is beyond the domain of evidence.

Although Federal Rule 701 contemplates opinion testimony by lay witnesses in certain situations, Dr. Timm's testimony in the areas in question does not meet the Rule's two prerequisites, see Rule 701, supra. Furthermore, an analysis of Rule 701 makes clear that it was not directed at situations such as this, where an expert in one area attempts to testify on matters outside of his area of expertise. See 11 J. Moore, Federal Practice 5701.02, at VII-4-8 (2d ed. 1976).

3. Similarly, Dr. Timm offers legal conclusions as to whether continued construction of the Midland Plant forecloses reasonable alternatives to that facility and as to the effect of continued construction on the remanded hearings. Such discussion does not pertain to relevant facts in the proceeding and is beyond Dr. Timm's area of competence as an expert witness. Thus, it should be stricken

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from the Affidavit. '

IZI. Conclusion For the reasons set forth above, Licensee moves that the specified portions of the Affidavit of Richard J.

Timm for Intervenors other than Dow, as illustrated in Attachment A to this Motion, be stricken from the record in this proceeding.

Respectfully submitted, -

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40David J. -

GD 6 '6&

Rosso 6

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R. Rex Renfrow, III L

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i 0 Marrha E. Gibos )

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{L~-- l Caryl A. Bartelman #} {g Attorneys for Consumers Power Company Isham, Lincoln & Beale One First National Plaza Chicago, Illinois 60603 June 21, 1977

f, increase in coal cos ts would be possible without affecting the fundamental conclusion of Exhibits 46 and 46R.

36.

Finallv. Mr. Brzezinski's assertion (in cara2rach 13 of his rebuttal affidavit) that we should "take into account the... net cos t of abandoning the Midland facility" in this proceeding is incorrect.

Mr. Brzecinski's statement is merelv another way of claiming thaIt " sunk cost's" should be considered.

But everyone in this oroceeding knows that the Court of Appeals has expressly directed that sunk costs- not be considered in restrikinn the cost-benefit analvsis. Similarly, although Mr.

Brzezinski states in paragraph 13 of his rebuttal affidavit that he wishes to take into account the cost of " replacement power,"

he is silent concerning the need also to take into account the added life expectancy of the alternative facility. As I indicated in paragraph .32 o f this affidavit, it can be estimated for .

working purposes that those two items will cancel each other out.

Response to Rebuttal Testimony of Arnold H. Maltz

37. The bound rebuttal testimony of Mr. Melt:

concerns my testimony (at pages 65 - 69 of my direct tes timony ,

and at pages 5595 - 5640 of the trans crip t) that Mr. Keeley failed to consider the time value of money in his cost of delay analysis.

Mr. Melta does no t ques tion the fact that Mr. Keeley failed to take the time value of money into account; however, Mr. Melt questions some of the calculations which I used to arrive at my estimate of the difference in the cost of delay analysis uhich results if the time value of money is taken into Attachment A

since recalculating the figures in the way desired by Consumers and the Staff yields only minor differences in the results.

Accordinciv, I reaffirm the conclusion, reached in my direct testimonv, that construction of the Midland facility should be suscended pend nc the outccme of full remanded hearings. As I pointed out in my direct testimony, each day of continued construc-tion inevitably tends to fore'close reasonable alternatives to the :tidland facilitv. Unless construction is halted cendine the remanded hearines, full and realistic consideration of those alternatives at the hearines will beccme difficult if not impossible, and the hearines will be no more than an academic exercise, since at their conclusion no one will realistically be in ?. cosition to imolement the alternatives which presently exist.

44. The papers attached to this affidavit, consisting of Table A and Attachments B1, B2, 33, C, and D, which are hereby made a part of this affidavit, were prepared by me and are true and accurate to the best of my knowled.ge and belief.

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Ricnarc .I. ,Timm i

Subscribed and sworn to before me this,26th day of May. 1977 m

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Gotary Ptisil.C 1

Attachment A 1

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3 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

. ) 50-330 ,

(Midland Plant, Units 1 and 2) )

)

)

CERTIFICATE OF SERVICE I hereby certify that copies of the attached " Motion and Supporting Memorandum of Consumers Power Company To Strike Portions of the Affidavit of Richard J. Timm In Response To Rebuttal Testimony Filed By Consumers Power Company and The Nuclear Regulatory Commission Staff" and " Request For Leave to ~

File ' Motion ... Staff' Out of Time", dated June 21, -1977 in the above-captioned proceeding, have been served on the following by deposit in the United States Mail, first-class, postage pre-paid, this 21st day of June:

Frederic J. Coufal, Esquire Atomic Safety and Licensing i

Chairman Appeal Board Atomic Safety and Licensing U.S. Nuclear Regulatory Comm.

Board Panel Washington, D.C. 20555 U.S. Nucl. tar Regulatory Comm.

Washington, D.C. 20555 Mr. C. R. Stephens Chief, Docketing & Service Section Dr. J. Venn Leeds, Jr., Esq. Office of the Secretary 10807 Atwell of the Commission Houston, Texas 77096 U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555

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Dr. Emmeth A. Luebke, Esq. Lawrence Brenner, Esquire Atomic Safety and Licensing Counsel for NRC Staff Board Panel U.S. Nuclear Regulatory Comm. ,

U.S. Nuclear Regulatory Comm. Washington, D.C. 20555  !

Washington, D.C. 20555 L. F. Nute, Esquire Myron M. Cherry, Esquire Legal Department One IBM Plaza Dow Chemical U.S.A.

Suite 4501 Michigan Division Chicago, Illinois 60611 Midland, Michigan 48640 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Cogm. .

Washington, D.C. 20555 f, l ,

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'( kj Martha E. Gibbs

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Counsel for Consumers Power Company Isham, Lincoln & Beale One First National Plaza Chicago, Illinois 60603 312/786-7500 June 21,1977

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