ML20027C590

Motion to Strike MT Masnik Testimony Due to Prejudice,Bias & Fact That Testimony Not Based on Fes.Related Correspondence

ML20027C590
Person / Time
Site:	Limerick
Issue date:	09/27/1982
From:	Sugarman R DEL-AWARE UNLIMITED, INC., SUGARMAN & ASSOCIATES
To:	NRC COMMISSION (OCM)
References
ISSUANCES-OL, NUDOCS 8210180224
Download: ML20027C590 (3)

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, UNITED STATES OF AMP g bM lll NUCLEAR REGULATORY C IION AA CF In the Matter of 22 OCT 14 P3:37 rp

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Philadelphia Electric Company .

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GCKElillG & SERV!Ci 50-352-OL 50-353-OL gY', /[ gg (Limerick Generating Station, Units 1 and 2)

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MOTION TO STRIKE THE TESTIMONY OF DR. MICHAEL T. MASNIK Del-AWARE Unlimited, pursuant to the Board's order, , c files its motion to strike the testimony of Dr. Michael T.

Masnik and avers as the basis thereof, the following:

1. Prior to conducting any study of this matter, Dr.

Masnik told NWRA consi21 tant Harold Brundage that he had no problem with the project and would not see any problem with it going ahead. Brundage wrote a letter concerning these statements by Masnik to his client, which letter is attached as Exhibit A. In these circumstances, Masnik, having made up his mind prior to conducting his study, cannot ,

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regarded as a creditable witness.

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2. Prior to being employed by the NRC, Masnik was -

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employed by Ichthyolgical Associates, which employed  :

Brundage, the consultant to NWRA. IA has also frequently I been' a consultant to Philadelphia Electric Company. The

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relationship between the two companies was underlined by +

Masnik's decision to go to IA's-

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' <, - headquarters and discuss the matter with Brundage before i

\- conducting any investigation of the matter, and indeed proceeds to rely on Brundage (E.g., A-7) despite his prior relationship with IA, his commitment to Brundage, and Brundage's affiliation.

3. Masnik, also ignored the fact that Brundage's opinionrehardingShortnoseSturgeonwasbasedonanassumed river velocity of 1.0 fs or more at all times past the intake, and m'isstates his conclusions, despite this matter hav.ing been fully been explored. (Q7)

4. Masnik deliberately overstates the conclusion of Brundage and the Endangered Species Act 7 $ Consultation -

Biological Opinion. (AB) He ignores that fact that- NMFS states that their conclusion is based on presently available information, which is sparse, and assumes a river flow velocity of I fs.

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5. The proposed witness also bases his testimony on the " lack of observed spawning in the vicinity", and deliberately ignores the fact that there has been no effort to observe such spawning in the area. (A9)

6. The witness biases his opinion by using "mean

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monthly discharges" as the relevant discharge for evaluating water flow in the intake relative to the' river, whereas the fish survive on minimum instantaneous discharges. (A14)

7. Masnik's testimony is not based on a final environmental Impact Stateme'nt, as required by 10 C.F.R. $

51.52, WHEREFORE 2

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- . For the foregoing reasons, the testimony df witness l Masnik would be misleading, is unqualified, and would be i

, inappropriate being received by the Board, and should be j excluded.

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ROBERT J. SUGARMAN c 1

l Attorney for Del-AWARE

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Unlimited, i

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September 27, 1982 l l

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