ML20010C334
| ML20010C334 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 08/13/1981 |
| From: | Black R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20010C329 | List: |
| References | |
| NUDOCS 8108190360 | |
| Download: ML20010C334 (9) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOM!C SAFETY AND LICENSING BOARD In the Matter of HOUSTON LIGHTING AND POWER COMPANY Docket No. 50-466
( Allens Creek Nuclear Generating Station, Unit 1)
)
NRC STAFF RESPONSE TO APPLICANT'S MOTION TO STRIKE PREFILED TESTIMONY OF DR. MARRACK On August 5,1981, the Applicant filed a motion to strike a suostantial portion of Dr. Marrack's supplemental testimony which was prefiled on July 27,1981 Dr. Harrack is scheduled to testify on August 19, 1931, and the Staff anticipates that motions to strike his testinony will be entertained by the Licensing Board at that time.
However, to aid the Board in its deliberations and with the hope of expediting argument with respect to this motion, the Staff is fi!ing its position on this motion prior to the nearing.
For ease of reference, the Applicant has made motions to strike on a paragraph-by-paragraph basis. We will respond to its motion using the l
same numbered paragraph format.
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It should be initially noted that the NRC Staff was never served by mail with Dr. Marrack's testimony. We learned of the existence of this testimony through Applicant's counsel and received a copy from him on August 3 1981.
8108190360 010013 PDR ADOCK 05000446 O
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Paragraph 1: We support Applicant's motion to strike for two reasons..First, Dr. Harrack's statement that a viable fishery has to be self-sustaining ~is arg=c.t and not testimony.
In addition, statements regarding the absence of a contractual agreement between the Applicant and the Texas Parks and Wildlife Department with respect to the management of the cooling lake are again argument and not expert testimony. Second, we agree with Applicant that Dr. Sa:1ders never stated that "for a sustained desirable sport fishery, the Allens Creek 1.ake will be dependant [ sic] on regular restocking of fish." Dr. Sanders testified that the lake would be a self-sustaining crappie fishery.
See Tr. 5036, 4994-5000.
Paragraph 2: We support Applicant's motion to strike. This paragraph discusses Dr. Marrack's opinion that there is a threat to humans from the ingestion of fish cont-Nted ;;ith mercury. While Dr. Sanders did discuss the mercury loadings in sediment and the process of bioaccumulation and biomagnification (see Tr. 4321-4332,4889-4939),
he did not testify with regard to the possible hazard to humans. He recognized uncertainties in predicting the quantitative potential for heavy metal accumulation in the reservoir and, therefore, the Staff recommended that fish flesh be nonitored to protect against a possible human bealth hazard and the Applicant has committed to this monitoring program.
Dr. Marrack's testimony does not rebut Dr. Sander's testimony regarding the possibility of this potential health hazard.
It merely reiterates what has already been recognized.
In addition, Dr. Marrack's concluding statement that "the.; port fish caught can be reasonably expected not to be suitable for human
consumptinn.
.." is mere speculation not supported by any facts or underlying scientific analysis.
Paragraoh 3: We supt art Applicant's motion to strike. Dr. Marrack is not an expert in the sp:.wning habits of fish (Tr. 4469-73) and his previous testimony on this subject matter has been stricken.
Paragraph 4: We support Applicant's motion to strike. This paragraph discusses "whether there will be encagh shad and other smaller fish to supply the dictary needs of the sport fish." Dr. Marrack concludes that the " data in the FES and the FSFES fail to adequately address this issue." This paragraph should be struck because it is not offerred as rebuttal to Dr. Sanders' testimony.
It cites a lack of data in the FES and the FSFES and,does not reference any inadequacy in Dr. Sanders' testimony.
In addition, we submit that this proferred paragraph is outside the scope of Dr. Idarrack's expertise inasmuch as it discusses the ability of shad to survive, grcw, and reproduce in the cooling lake.
Paragraph 5: We support the motion to strike for the reasons stated by the Applicant.
Paragraphs 6, 7, 8 and 9: We support Applicant's motion to strike.
These paragraphs generally discuss the toxic effects of total residual chlorine (TRC) and "non-TRC reactive compounds." As a basic proposition, Dr. tiarrack appears qualified to testify on this subject matter.
However, since this testimony is offerred as rebuttal testimony to Dr. Sanders, it must rebut specific testimony or assertions made by Dr. Sanders. Therefore, Dr. Marrack's assertion that the decay constant (k value) utilized by Dr. Sar. hrs considers only a single chemical
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-called TRC and does not consider the composite value of all chlorine derivatives and "non-TRC reactive compounds" such as the Trihalomathanes must rebut, in some way, Dr. Sanders' testimony on this point.
Although Dr. Marrack's testimony is difficult to follow, it appears to be premised on a misunderstanding of TRC and a faulty representation of Dr. Sanders' testimony.
Dr. Sander: never testified about a " single chemical" called TRC nor did he attribute the decay constant to such a chemical.
In fact, he has considered the mono, fi, and tri-chloramines and Trihalomethane in the TRC decay rate. See Sanders Testimony, foll. Tr. 3242, p. 8 and Attachment B; Tr. 4740, 4750-53. Accordingly, this testimony must be stricken because it does not rebut any specific testitony of Dr. ' Sanders but merely i'; additive to Dr. Marrack's direct case. The Board did not grant Dr. Marruck leave to bolster his direct testimony in this manner.
Paragraphs 10 and 11: We support Applicant's motion to strike for the reason advanced by the Applicant.
Since nutrient loading is not only a function of water quality and nutrient enrichment, but also of temperature regime, nutrient loading of the cooling lake prior to plant operation is irrelevant. Thus, calculation of construction workers' sewage is immaterial.
Paragraphs 12 through 15: We support Applicant's motion for the reasons set forth by the Applicant.
In eddition, we believe that this testimony regarding the influx of population and industries to the site area is highly speculative and outside of Dr. Marrack's expertise.
P6ragraphs 16 and 17: We support Applicant's motion to strike for the reasons advanced by the Applicant. Again, this testimony is~being i-l
offerred by Dr. Marrack to bolster his direct testimony as opposed to rebutting Dr. Sanders' testimor.y and.should be stricken.
r Paragraphs 18 through 24;_ We support Applicant's motion to strike.
The Staff submits that this testimony is merely argument and not factual testimony that rebuts Dr. Sanders' testimony.
In addition, it is another attempt by Dr. Itarrack to bolster his direct testimony through the guise of rebuttal.
Paragraph 25: We agree with App'icant that this paragraph is arguably responsive and should not be struck.
I Paragraphs 26 and 27: We support App 1; cant's motion to strike.
Although Dr. Sanders did discuss the rate of change, or absolute temperature necessary for told shock in his direct testimony (p.17),
there was no discussion of these issues during cross-examination (Tr. 4701-5083). Thus, Applicant is correct that this testimony is not proper rebuttal as authorized by the Board.
In addition, we submit that Dr. Marrack is not qualified as an expert to testify on the conditions necessary for cold shock.
Paragraph 28: We support Applicant's motion to strike. This paragraph concerns the ratio between game fish to rough fish in heated reservoirs. Dr. Sanders never testified on this ratio but merely indicated that it shifted in favor of game fish in heated reservoirs.
Tr. 4786.
Dr. Schlicht testified that the ratio would be approximately 60% game fish and 40% rough fish in a heated reservoir.
See Tr. 2706, 2888. Accordingly, this testimony appears to rebut the testimony of Dr. Schlicht instead of Dr. Sanders.
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Paragraph 29: We support Applicant's motion to strike for the reason advanced by the Applicant.
Paragraph 30: We support Applicant's motion to strike for the i eason advanced by the Applicant.
Since Dr. Marrack's testimony is in complete accord with Dr. Sanders' testimony, it cannot be considered rebuttal testimony as allowed by the Board. This testimony would have been proper in Dr. Marrack's direct testimony.
Paragraph 31-33: We support Applicant's motion to strike for the reasons advanced by the Applicant.
Paragraph 34: The NRC Staff moves to strike this paragraph.
Although it is conceded that Dr. Sanders discussed the potential for algal blooms in the cooling lake (See Tr. 3123,4310,5014),
Dr. Marrack's testimony should not be consdiered rebuttal because it is nebulous and speculatiee. There is no factual information to support this expert opinion nor is there any indication that Dr. Marrack has any first-hand knowledge of facts that would support his conclusion.
See 2 Jones on Evidence 9 14:19 (1972). The mere fact that blue-green algae has appeared at Lewis Creek cooling lake does not support a conclusion that " algal blooms must be expected at Allens Creek Lake from late April or May until early Autumn...."
Paragraph 35: We support Applicant's motipn for the reasons advanced by Applicant.
In conclusion, the NRC Staff supports Applicant's motion to strike in_ toto *:ith the exception that we would also move to strike E
Parag-aph 34 Respectfully submitted h
$ Richard Black
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Counsel for NRC Staff i
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UNITED STATES OF A!! ERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter Of HOUST0ll LIGHTING AND POWER COMPANY Docket No. 50-466 (Allens Creek Nuclear Generating Station, Unit 1)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO APPLICANT'S MOTION TO STRIKE PREFILED TESTIM 0HY OF DR. MARRACK in the above-captioned pro-ceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 13th day of August, 1981.
Sheldon J. Wolfe, Esq., Chairman
- Administrative Judge Susan Plettman, Esq.
Atomic Safety and Licensing David Preister, Esq.
Board Panel Texas Attorney General's Office U.S. Nuclear Regulatory Comission P.O. Box 12548, Capitol Station Washington, DC 20555 Austin, TX 78711 Dr. E. Leonard Cheatum Administrative Judge Hon. Jerry Sliva, Mayor Route 3, Box 350A
,ity of Wallis, TX 77485 Watkinsville, Georgia 30677 Hon. John R. Mikeska Mr. Gustave A. Linenberger*
Austin County Judge Administrative Judge P.O. Box 310 Atomic Safety and Licensing Bellville, TX 77418 Board Panel U.S. Nuclear Regulatory Comission Washington, DC 20555 Mr. John F. Doherty 4327 Alco'1 bury Street The Honorable Ron Waters Houston, TX 77021 State Representative, District 79 3620 Washington Avenue, No. 362 Mr. William J.' Schuessler Houston, TX 77007 5810 Darnell Houston, TX 77074
- d. Gregory Copeland, Esq.
Baker & Botts One Shell Plaza Houston, TX 77002
Jack Newman, Esq.
D. Marrack Lowenstein, Reis, Newman &
420 Mulberry Lane Axelrad Bellaire, TX 77401 1025 Connecticut Avenue, N.W.
Washington, DC 20037 Texas Public Interest Research Group, Inc.
Brenda A. McCorkle c/o James Scott, Jr., Esq.
6140 Carnell 13935 Ivymount Houston, TX 77074 Sugarland, TX 77478 Mr. Wayne Rentfro Rosemary N. Lemmer P.O. Box 1335 11423 Dak Spring Rosenberg, TX 77471 Houston, TX 77043 Leotis Johnston Car'.o Hinderstein 1407 Scenic Ridge Houston Bar Center Houston, TX 77043 723 Main Suite 500 Houston, TX 77002 Margaret Bishop U.S. Nuclear Regulatory Commission J. Morgan Bishop Region IV, I&E 11418 Dak Spring 611 Ryan Plaza Drive, Suite 1000 Houston, TX 77043 Arlington, TX 76011 Stephen A. Doggett, Esq.
Pryan L. Baker Pollan, Nicholson & Doggett 1923 Hawthorne P.O. Box 592 Houston, TX 77098 Rosenberg, TX 77471 Rc,oin Griffith Carolina Conn 1034 Sally Ann 1414 Scenic Ridge Rosenberg, TX 77471 Houston, TX 77043 fir William Perrenod Atomic Safety and Licensing 4070 Merrick Board Panel
- Houston, TX 77025 U.S. Nuclear Regulatory Commission Washington, DC 20555 Docketing and Service Section*
Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Panel
- Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 O
4tepher/ M. Sohfnki Counsel for NRC Staff