ML19350C721
| ML19350C721 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/18/1981 |
| From: | Baxter T METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8104060633 | |
| Download: ML19350C721 (13) | |
Text
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4 UNITED STATES OF AMERICA (g
NUCLEAR REGULATORY COMMISSION CCOT e
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"A 2 41981 y BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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Docket No. 50-289
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(Restart)
(Three Mile Island Nuclear
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Station, Unit No. 1)
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P fg LICENSEE'S RESPONSE TO UCS S
4 Agog yg OBJECTIONS TO KEATEN-COLITZ-ROSS 4
EFW TESTIMONY AND KEATEN SECOND 1 4
r-SUPPLEMENTAL TESTIMONY ON BOARD QUESTICf h
4' I.
INTRODUCTION On March 12, 1981, UCS filed " Union of Concerned Scientists' Objection To Tentative Schedule For Testimony and Proposed Alternative Schedule," which included, inter alia, UCS's objections to the receipt into evidence of " Licensee's Supplemental Testimony of Robert W.
Keaten, Joseph J. Colitz and Michael J. Ross in Response to Board Question No. 6 (Emergency Feedwater Reliability)," dated November 25, 1980
("Keaten-Colitz-Ross Testimony"), and to " Licensee's Second Supplemental Testimony of Robert W.
Keaten in Response to Board Question No. 6 (Emergency Feedwater Reliability),"
dated March 9, 1981 ("Keaten Testimony").
In a March 13 conference call among the Board, the Staff, Licensee and UCS, Licensee agreed to respond expeditiously to the UCS filing, to allow the Board to rule on the objections before the testimony is formally moved into evidence.
Licensee here 810.4060 633 h
1
. responds to UCS's objections to the receipt into evidence of the two pieces of testimony.
II.
DISCUSSION A.
The Keaten-Colitz-Ross Testimony In its March 12 filing, UCS objects to the receipt into evidence of the Keaten-Colitz-Ross Testimony as " entirely duplicative of testimony presented earlier by witness [es] Capo-danno, Lanese and Torcivia on which UCS did extensive cross-examination."
As discussed in " Licensee's Memorandum of Law In Association With Testimony in' Response to Board Question No.
6" (March 9, 1981), " Licensee's Testimony of Gary R. Capodanno, Louis C.
Lanese and Joseph A. Torcivia in Response to Board Questions 6.a, 6.b, 6.c, 6.g, 6.h, 6.1, 6.j and 6.k"
("Capodanno-Lanese-Torcivia testimony") was filed on October 21, 1980, in response to Board Question 6, as Licensee then understood the Board's concerns as set forth in its September 8, 1980
" Memorandum and Order" and its September 12, 1980 " Memorandum on Board Questions."
However, at the November 5, 1980 hearing session,- on the basis of its review of the Capodanno-Lanese-Torcivia' testimony and the cross-examination of Licensee witnesses Jones and Keaten, the Board informed Licensee that
-its testimony on Board Question 6 did not address all the issues which the Board had intended to be within the scope of the Board Question.
In particular, Licensee had not
1/
construed Question 6.d to inquire about operator action to terminate the " feed-and-bleed" cooling mode.
The Board clarified the issues within the scope of Board Question 6 to include:
a How would the emergency feedwater system, if relied upon, bring the plant to cold shutdown?
If emergency feedwater fails, what are the complexities and problems involved in the operation and termination of the feed and bleed cooling mode?
How is an alternative cooling mode, such as restoration of emergency feedwater, initiated in order to bring the plant to cold shutdown?
See Tr. 4812-13.
On November 25, 1980, in response to the Board's clarification of the scope of Board Question 6, Licensee filed the Keaten-Colitz-Ross Testimony.
The Keaten-Colitz-Ross Testimony thus focuses upon three specific questions, identified by the Board, which the Board determined were not answered in Licensee's orginial testimony on Board Question 6 (and which, in fact, Licensee hadn't even originally understood to be a part of Board Question 6).
While.the Capodanno-Lanese-Torcivia testimony and the Keaten-Colitz-Ross testimony are understandably related, UCS's bald, conclusionary assertions--sans transcript references--that the Keaten-Colitz-Ross testimony is " entirely duplicative of" and "merely reiterates the conclusions of" the earlier testimony, are unsupportable.
1/
Question 6.d:
"What operator action is required to operate in a feed-and-bleed mode following a loss of emer-v gency feedwater?".
, j As UCS points out, Licensee's original witnesses on Board Question 6 did respond to some cross-examination arguably beyond the scope of Licensee's original testimony but within the scope of the clarified Board Question.
However, by the time Licensee presented its original witnesses and their pre-filed testimony on Board Question 6, Licensee had decided to prepare a supplemental piece of testimony to respond compre-hensively to the Board's concerns.
Accordingly, Licensee did not attempt to develop a full record on the clarified Board Question 6 with its original panel.
Moreover, a party is to be afforded certain latitude in the presentation of its case.
A party is generally permitted to elicit from a witness the background information necessary to " set the scene" for the fact-finder.
It is thus to be expected that some general information about the emergency feedwater system elicited from Licensee's original witnesses on Board Question 6 is also included, for the sake of clarity and comprehensiveness, in'the Keaten-Colitz-Ross testimony.
The inclusion of such background information is particularly appropriate in this instance, in light of the technical l
complexity of the issue and the four-month hiatus which has ensued since the presentation of the Capodanno-Lanese-Torcivia testimony.
Since the Board has already indicated that the
'Capodanno-Lanese-Torcivia testimony did not respond to cer-tain of its. questions about the emergency feedwater system, r-
which the Keaten-Colitz-Ross Testimony explicitly addresses, it is at best difficult to appreciate an evidentiary objection founded on repetition.
In any case, even if the Keaten-Colitz-Ross Testimony were truly repetitive of the earlier Capodanno-Lanese-Torcivia testimony, any delay attendant to the admission of the testimony injures only Licensee, and UCS should not be heard to complain.
B.
Keaten's Second Supplemental Testimony In its March 12 filing, UCS also objects to the receipt into evidence of the Keaten Testimony as not " competent."
Speci-fically, UCS complains:
First, Mr. Keaten is not qualified as an expert in statistical or probabilistic analysis nor has he any direct personal experience in analyzing the historical record on feedwater failures.
Therefore, his opinions of the work of others is
[ sic] not probative and inadmissible.
Second, since he relies entirely on the work of others, the bases for the Keaten testimony cannot be cross-examined in any meaningful way.
j
" Union of Concerned Scientists' Objection To Tentative Schedule For Testimony and Proposed Alternative Schedule," at p. 8.
l UCS's objections, framed as formulations of the " hearsay" rule, are not well founded in the law.
The standard for the receipt of evidence in an administrative proceeding is estab-l lished generally by the Administrative Procedure Act, which provides:
Ang oral or documentary evidence may be l
received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repe-titious evidence.
5 U.S.C.
S 556(d) [ emphasis supplied].
The Rules of Practice of the NRC explicitly confer a "right" to present evidence that could be excluded under the Federal Rules:
Every party * *
- shall have the right to present such oral or documentary evidence and rebuttal evidence * *
- as may be required for full and true disclosure of the facts.
10 C.F.R.
S 2.743(a).
That "right" is qualified by section 2.743(c):
Only relevant, material, and reliable evidence which is not unduly repetitious will be admitted.
See Davis, 3 Administrative Law Treatise S 16.5 (2d ed. 1980)
(discussing " Administrative Regulations Concerning Evidence" generally, and the-NRC Rules of Practice specifically at p. 237).
It is thus well settled that evidence of a hearsay character is generally admissible in NRC proceedings.
- See, e.g.,
Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 N.R.C.
397, 411-412 (1976).
Though not framed in the terminology of the applicable administrative standards, UCS's general arguments -- that the l
Keaten testimony is infirm because Mr. Keaten is not an
" expert in statistical or probabilistic analysis" and has no
" direct personal experience" in analyzing feedwater failures, and because the testimony " relies entirely on the work of others" -- may be read as challenges to the reliabl.lity of the Keaten testimony.
While 10 C.F.R.
S 2.743(c) does limit the "right" conferred by 10 C.F.R. S 2.743(a) to evidence which is, inter alia, " reliable," UCS has failed to demonstrate that -
' the.Keaten Testimony is in any sense unreliable, other than to argue the acknowledged hearsay nature of the testimony.
Mr. Keaten does, in fact, have experience 1.s statistical and probabilistic analysis, though the testimony does not present such analyses.
Licensee does not, by the Keaten testimony, seek a finding by the Board of any specific numeric reliability figure.
Rather,.as Licensee's associated Memorandum of Law explains, the purpose of the Keaten testimony, with the Memorandum of Law, is to explain why Licensee believes that the evidentiary record on the reliability of the TMI-l emergency feedwater system is adequate, and need not be further supplemented with quantitative reliability analyses.
See " Licensee's Memorandum of Law I$n Association With Testimony In Response To Board Question Nv.
6,"
(March 9, 1981), at 3-4.
UCS mischaracterizes Mr. Keaten's testimony as relying
" entirely on the work of others."
This is simply untrue.
- See, e.g., Keaten Testimony, at pp. 4-6 (covering matters well within the purview of Mr. Keaten's professional responsibilities t
in his employment).
Even at pages 7 and 8 of his testimony,
?
Mr. Keaten is not blindly relying upon data developed by the Staff.
Rather, Mr. Keaten presents a general, independent critical review of that data, in his position as the GPU Manager of Systems Engineering.
Moreover, the very nature of the issue which Mr.
Keaten addresses requires a witness to go beyond personal knowledge and to review "the work of others," particularly
that of the Staff.
The Keaten Testimony is filed in direct response to the concerns of Admini strative Judge Jordan, expressed at the November 20, 1980 hearing session.
See
" Licensee's Memorandum of Law In Association With Testimony J
In Response To Board Question No.
6" (March 9, 1981), at pp.
3-4.
Those concerns are based upon a review of Staff docu-ments, including NUPEG-0560.
Obviously Licensee cannot produce as a witness a member of the Staff who worked on NUREG-0560.
The very nature of Dr. Jordan's inquiry requires Licensee's witness to address "the work of others."
Similarly, UCS's objection to the Keaten Testimony's reference to the work of Mr. Koppe is unfounded in either the law or the facts of this case.
As discussed above, the mere hearsay nature of this type of testimony does not render it inadmissible in an NRC proceeding as a matter of law.
Nor has UCS presented.any facts which would suggest that Mr.
Keaten's " report" of Mr. Koppe's data is in some way unreliable.
Licensee employed Mr. Koppe as a consultant, and Mr. Keaten thus relied upon Mr. Koppe in the sense that an i
employer generally relies upon an employee.
As this Board has acknowledged on previous occasions, the very nature of the_ testimony presented in NRC proceedings often requires a witness to testify on matters which--as a practical matter--
- necessitate lthe witness's reliance on information presented to him by. employees.
3
4.
Moreover, Mr. Koppe has already testified in this proceeding on the data base on which Mr.'Keaten " reports."
See " Licensee's Testimony of Robert H. Koppe in Response to CLI-80-5, Issues 8 cud 9 (Licensee's Infraction, LER and Operating Experience Hictory)," following Tr. 13,335.
Though UCS chose not to attend certain phases of this procaeding, including the sessions at which Mr. Koppe's testimony was
-presented, Administrative Judge Jordan, and the other members of the Board, as well as the Staff, the Commonwealth, and interested intervenors cross-examined Mr. Koppe extensively, on the record.
The reliability of Mr. Keaten's " report" of Mr. Koppe's data is thus further ensured, in the particular facts of this case, by Mr. Koppe's-earlier testimony in this proceeding.
See, generally, Northwestern Mutual Life Insurance Co. v. Linard, 498 F.2d 556, 559-60 (1974) (testimony of one witness-on statements of another witness admissible where other witness also testified in same proceeding).
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III.
CONCLUSION For all of the foregoing reasons, Licensee submits that the UCS objections to Licensee's testimony, prepared and offered in response to this Board's questions and stated concerns, should be overruled.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
/G A W.
Thomas A. Baxter Delissa A. Ridgway Counsel for Licensee 1800 M Street, N. W.
Washington, D. C.
20036 (202) 822-1000 Dated: March 18, 1981
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Lic 3/18/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart)
(Three Mile Island Nuclear
)
Station, Unit No. 1)-
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Response To UCS Objections.To Keaten-Colitz-Ross EFW Testimony and Keaten Second Supplemental Testimony on Board Question 6" were. served'upon those persons on the l
l attached Service List by deposit in the United States mail, postage prepaid, this'18th day of March, 1981.
I a
A V9Delissa (A. sTidgkay f 1 Dated: March 18, 1981 e
awi
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
SERVICE LIST Ivan W. Smith, Esquire John A. Levin, Esquire Chairman Assistant Counsel Atomic Safety and Licensing Pennsylvania Public Utility Comm'n Board Panel Post Office Box 3265 U. S. Nuclear Regulatory Commission Harrisburg, Pennsylvania 17120
' Washington, D. C. 20555 Karin W. Carter, Esquire Dr. Walter H. Jordan Assistant Attorney General Atomic Safety and Licensing 505 Executive House
-Board Panel Post Office Box 2357
,881 West Outer Drive Harrisburg, Pennsylvania 17120 Oak Ridge, Tennessee 37830 John E. Minnich Dr. Linda'W. Little Chairman, Dauphin County Board Atomic Safety and Licensing of-Commissioners Board Panel Dauphin County Courthouse 5000 Hermitage Drive Front and Market Streets-Raleigh, North. Carolina 27612 Harrisburg, Pennsylvania 17101 James R. Tourtellotte, Esquire. (4)
Walter W. Cohen, Esquire Office of the Executive Legal Director Consumer Advocate
'U..S. Nuclear Regulatory Commission Office of Consumer Advocate Washington, D. C. 20555 14th Floor, Strawberry Square Harrisburg, Pennsylvania 17127 Docketing and Service Section (3)
Office'of the Secretary U. S. Nuclear, Regulatory Commission Washington, D. C.
20555 b
Jordan D. Cunningham, Esquire Wil?.iam S. Jordan, III, Esquire Fox, Farr & Cunningham Harmon & Weiss 2320 North Second Street 1725 Eye Street, N. W.,
Suite 506 Harrisburg, Pennsylvania 17110 Washington, D. C.
20006 Ms. Louise Bradford Robert Q. Pollard TMI ALERT 609 Montpelier Street 315 Peffer Street Baltimore, Maryland 21218 Harrisburg, Pennsylvania 17102 Chauncey Kepford Ellyn R. Weiss, Esquire Judith Johnsrud Harmon & Weiss =
Environmental Coalition on Nuclear 1725 Eye Street, N. W.,
Suite 506 Power Washington, D. C. 20006 433 Orlando Avenue State College, Pennsylvania 16801 Steven C. Sholly.
Union of Concerned Scientists Marvin I. Lewis
.1725 Eye Street, N. W.,
Suite 601 6504 Bradford Terrace Washington, D. C. 20006 Philadelphia, Pennsylvania 19149 Gail Bradford Marjorie M. Aamodt ANGRY R. D.
5 245 West Philadelphia Street Coatesville, Pennsylvania 19320 York, Pennsylvania 17404 Attorney General of New Jersey Attention: Thomas J.
Germine, Esquire Deputy Attorney General Division of Law - Room 316 1100 Raymond Boulevard Newark, New Jersey 07102 i
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