ML20058G399

Answer Opposing Pl Hourihan 820716 Motion for Reconsideration of ASLB Admission Into Evidence of Joint Applicants Exhibit Dd.Exhibit Authenticated & Cannot Be Excluded Under Hearsay Objection.W/Certificate of Svc

ML20058G399
Person / Time
Site:	Palo Verde
Issue date:	07/29/1982
From:	Bischoff C BISCHOFF, C.A., JOINT APPLICANTS - PALO VERDE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8208030311
Download: ML20058G399 (14)

Text

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k0 UNITED STATES OF AMERICA jp g _

NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD O n .' . ,

In the Matter of ) -

ARIZONA PUBLIC SERVICE ) Docket Nos. STN 50-528 COMPANY, et al. ) STN 50-529

) STN 50-530 (Palo Verde Nuclear )

Generating Station, Units )

1, 2 and 3) )

)

JOINT APPLICANTS' ANSWER TO INTERVENOR'S MOTION FOR RECONSIDERATION OF BOARD'S ADMISSION INTO EVIDENCE OF JOINT APPLICANTS' EXHIBIT DD Joint Applicants Arizona Public Service Company, Salt River Project Agricultural Improvement and Power Dis-trict, Southern California Edison Company, Public Service Company of New Mexico, and El Paso Electric Company hereby answer Intervenor Patricia Lee Hourihan's Motion for Recon-sideration of Board's Admission into Evidence of Joint Applicants' Exhibit DD,M dated July 16, 1982. Intervenor requests in her Motion that the Board strike the exhibit from evidence or, in the alternative, that the Board reopen the hearing to allow Intervenor to cross examine the author of the exhibit. Intervenor bases her request on the grounds that Exhibit DD (1) is hearsay evidence not properly authen-t M Exhibit DD is sometimes referred to herein as the "Nalco Report".

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ticated by Joint Applicants and (2) was not produced in response to Intervenor's discovery requests. For the rea-sons which follow, Intervenor's Motion is totally without merit and should be denied.

I. JOINT APPLICANTS' EXHIBIT DD WAS PROP-ERLY AUTHENTICATED Intervenor's initial argument is based on a con-fused combination of the hearsay and authentication objec-tions. These two objections are completely separate and are based on distinct evidentiary principles.

In partial support of her authentication objec-tion, Intervenor argues that Joint Applicants' witness Bingham "could not properly authenticate the document [be-cause] [h]e could not testify to the research methods, data base, or process of analysis in the report." (Motion at 3).

Apart from the fact that Mr. Bingham was not asked to testify to such matters, Intervenor's allegation, even if true, does not establish that Exhibit DD is not authentic.

The requirement of authentication is satisfied if evidence is provided which is sufficient to support a finding that the document is genuine and what it purports to be. (Federal Rules of Evidence ("FRCP") 901(a)). It was not necessary for Mr. Kronmiller, the author of the Nalco Report, to authenticate the document because the testimony of a sub-scribing witness is not necessary to authenticate a writing.

i (FRCP 903). Rather, the authentication requirement may be s

satisfied by any one of a number of means. Several illus-trations are provided in Rule 901(b) of the Federal Rules of Evidence. One such method is the testimony of a witness with knowledge. (FRCP 901(b)(1)). In this case Mr. Bingham testified that Bechtel contracted with the Nalco Chemical Company ("Nalco") to perform an independent review of the Circulating Water Test Facility and Bench Scale laboratory testing methodologies and results, that he had received Nalco's report, and that Exhibit DD is Nalco's report.

(Bi ngham, Tr. ff. 2585, pp. 14-15; Tr. 2670).

In addition, it is universally accepted that a prima facie case of authenticity of a document is made by showing that the offered document was received in response to a communication sent to the claimed author. (9 ALR 984, 989). Here, as testified to by Mr. Bingham, Bechtel had contracted with Nalco to perform the independent review.M Mr. Kronmiller's letter of July 26, 1974, together with his report, were received in response to Bechtel's request for the independent review. This evidence was sufficient to establish the authenticity of Exhibit DD.E E Exhibit DD recites the date of such contract as May 1, 1974.

M Intervenor's comment (Motion at 4) that the Nalco Report does not appear to have been maintained in regular Bechtel files because it did not have large black numbers on the 1

i side, "as do all other Bechtel documents," together with her related remarks, misrepresent the facts and testimony in (footnote continued)

II. INTERVENOR IS PRECLUDED FROM USING A HEARSAY OBJECTION TO SUPPORT HER MOTION Intervenor also argues in her Motion that Exhibit DD should be excluded as hearsay evidence. This Motion is the first time that Intervenor has raised an objection to Exhibit DD on grounds of hearsay.S/ Intervenor's failure to object on such grounds at the time Exhibit DD was offered into evidence bars her from now relying on the hearsay argument.

M (footnote continued) this case. First, not all Bechtel documents provided to Intervenor had black numbers along the side. An obvious example is Joint Applicants' Exhibit BB. Second, contrary to Intervenor's assertions, Mr. Bingham did not testify that "the numbers were taken off by the microfiche system in the Los Angeles office." (Motion at 4, n.1). Mr. Bingham testified that "[i]n our L.A. office we use microfiche, and there we tend to clean up the documents as much as we can."

(Bingham, Tr. 2672). Third, and also contrary to Inter-venor's assertions, there is no evidence in the record, either at page 2674 of the transcript or elsewhere, that the original Bechtel documents with numbers along the side came from nearby Bechtel offices in Arizona. (Motion at 4, n.

1).

It should also be noted that a copy of Exhibit DD with black numbers along the side was available to Inter-venor at the hearing. (Tr. 2687). In fact, counsel for Intervenor was given a copy of Exhibit DD with numbers along the side on June 25, 1982, after the hearing was adjourned.

S/ At the time Exhibit DD was offered, Intervenor objected on the grounds that the document was not properly authenti-cated. (Tr. 2684). Intervenor also objected on the grounds that the document was not turned over during discovery.

(Tr. 2684, 2688-89).

t The law is clear that objections which are not specific and timely are waived. McCormick, Law of Evidence

$52 (1954).

" Principles of equity and fairness do not permit a party to ' remain mute and await the outcome of an agency's decision and, if it is unfavorable, attack it on the ground of asserted procedural defects not called to the agency's attention when, if in fact they were defects, they would have been cor-rectable . . . . '" Censumers Power Com-pany (Midland Plant, Units 1 and 2),

ALAB-123, RAI-73-5 331, 333 (1973),

quoting First-Citizens Bank and Trust Co. v. Camp, 409 F.2d 1086, 1088-89 (4th Cir. 1969).

In Florida Power & Light Company (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-335, NRCI-76/6 830 (1976), one of the intervenors' exceptions to the Licensing Board's partial initial decision was that certain documents should not have been admitted into evidence. The Appeal Board stated:

"While their claim is not well taken in any event, their failure to object below bars their raising the claim before us." (Id. at 842 n. 26). Because Intervenor failed to object on hearsay grounds at the hearing, she has waived the right to now raise the objection before the Board.

III. EXHIBIT DD SHOULD NOT BE EXCLUDED UNDER THE HEARSAY CBJECTION Even assuming that Intervenor had timely objected to the admissich of Exhibit DD on hearsay grounds, the

,. Board's decision to admit Exhibit DD should stand. Hearsay evidence is generally admissible in administrative pro-

ceedings. Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, NRCI-76/10 397, 411-12 (1976).

This principle follows from s556(d) of the Administrative Procedure Act which provides: "Any oral or documentary evidence may be received, but the agency as a matter of policy shall prcvide for the exclusion of irrelevant, im-material, or unduly repetitious evidence." (5 U.S.C.

5556(d)). This Board adhered to such principle throughout this proceeding by consistently ruling in favor of admitting hearsay. (See, e.g., Tr. 2203-04, 2251-52). The Board stated that the fact that the evidence is hearsay goes to the weight of the evidence. (Tr. 2252).

Although Intervenor states that hearsay documents are "sometimes" admitted into evidence in administrative proceedings, she adds that "they generally will not be admitted if their substance is challenged by other parties or they are in some way inconsistent with other disclosures in the record. " (Motion at 4-5, citing Illinois Power Com-pany (Clinton Power Station, Units 1 and 2), ALAB-340, 4 NRC 27, 31 (1976)). Intervenor then states that her witness on water quality challenged the basic conclusion of the Nalco Report and that Joint Applicants' witness Bingham contra-dicted the facts presented in the Nalco Report. (Motion at 5).

i The argument made and authority cited by Inter-venor in this regard fall far short of an adequate basis for excluding Exhibit DD. First, the clinton Power case does not provide the rule of law that Intervenor is advocating.

In Clinton Power, the Appeal Board, on appeal of a partial initial decision, took into account testimony of the inter-venors' witness that had been stricken by the Licensing Board. The stricken testimony had referred to various hear-say documents. The Appeal Board stated that it did not need to reach the question of the extent to which a witness may make reference to documents running afoul of the hearsay rule. It stated that the dispute centered not on the docu-ments, but on the conclusions of the witness. It noted that "none of the contents of the source material. . . has been challenged by the applicant or staff as either incorrect or inconsistent with other disclosures in the record." (4 NRC at 31). In no sense can the Appeal Board's statement be read as establishing a rule of law that documents which are so challenged are inadmissible. The Appeal Board simply was not presented with the question of whether hearsay evidence challenged by the other parties should be excluded. Further-more, even if its statement could.be so read, the Appeal Board cites no authority for such a rule.

Second, Intervenor's assertion that Mr. Bingham's testimony contradicted portions of Exhibit DD is another instance of her misrepresenting the testimony of a witness.

i The testimony at pages 1300-1302 of the transcript was limited to the galvanic corrosion tests and thus would not apply to the corrosion investigations respecting the heat exchanger tubes. Exhibit DD clearly refers to varying tube flow velocities in the context of the heat exchanger tubes.

Accordingly, Mr. Singham's testimony is not inconsistent with other disclosures in the record. As to the conflicting testimony of Intervenor's witness Robinson, it suffices to say that it is for the Board to weigh such evidence in arriving at its decision.

Intervenor's basic complaint seems to be that the admission of Exhibit DD was prejudicial to her case because she could not cross-examine Mr. Bingham on the substance of the document. (Motion at 1, 2). Joint Applicants strongly dispute Intervenor's position on this point. Exhibit DD was in the hands of the Intervenor for more than a week prior to her cross-examination of Mr. Bingham. If Inter-venor deemed it important to inquire into all of the facts underlying Exhibit DD, she should have subpoenaed the author of the Nalco Report. Her failure to do so precludes her from now complaining that she was denied the right of cross-examination. See Richardson v. Perales, 402 U.S. 389, 402, 410, 28 L. Ed. 2d 842, 853, 857 (1971).

In addition, as already noted, the Board consis-tently admitted hearsay in this proceeding. To the extent that Intervenor was denied cross-examination, it should be recognized that both Joint Applicants and the Staff were also denied such opportunity on several occasions.

IV. JOINT APPLICANTS WERE NOT OBLIGATED TO PRODUCE EXHIBIT DD DURING DISCOVERY Intervenor's second major argument is that Joint Applicants should be barred from introducing Exhibit DD into evidence because the document was not produced during dis-covery. (Motion at 6). In support of her argument Inter-venor refers (1) to the interrogatories served by her on May 26, 1981 and (2) to various requests made by her after April 22, 1982, the date when Intervenor's present counsel filed an appearance in the proceeding.

As to the May, 1981 interrogatories, Intervenor refers to numerous interrogatories requesting information on the onsite Water Reclamation Plant. These interrogatories are identified in Attachnent A to Intervenor's Motion.EI Joint Applicants were certainly not obligated to produce the Nalco Report in response to any of the identified interroga-tories. The Nalco Report was an independent review of the Circulating Water Test Facility and Bench Scale test method-ologies and results. (Bingham, Tr. ff. 2585, p. 15). No stretch of the imagination can bring this report within the relevant scope of interrogatories concerned solely with the onsite Water Reclamation Facility.

Intervenor also refers to three interrogatories 5/

requesting all documents (i) prepared by Joint Applicants in

/ Attachment A is not a quotation of the identified inter-rogatories, but rather a condensed, and, in at least one in-stance, inaccurate, summary of the interrogatories.

5/ Interrogatories 336, 337, 341.

A A

s connection with this proceeding, (ii) Joint Applicants intended to rely on in this proceeding, and (iii) used to prepare the FSAR and ER-OL. At to (i), Joint Applicants were not obligated to produce the Nalco Report because it was not prepared in connection with this proceeding, meaning 4, .a hearing. As to (ii), Jcint Applicants identified and pro-vided Intervenor with a' copy of the Nalco Report shortly after determining that it would be used in this proceeding.-

As to (iii), Joint Applicants were not obligated to identify the Nalco Report because it was not used to prepare either the FSAR or ER-OL. . \

Finally, as to Intervenor's last-minute attempts at discovery on the eve of the hearing, Joint Applicants were not obligated to produce anything. Under 10 CFR 52.740(b)(1), "no discovery shall be had after the beginning of the prehearing conference 1 eld pursuant to $2.752 except upon leave of the presiding officer upon good cause shown."

(Emphasis added). The prehearing onference referenced in 52.752 was held on 1(ovember 13,'1981. - Because the time for discovery ended on . November 18, 1981, Joint Applicants simply were not obligated to ' respond to any discovery requests after that time.

Notwithstanding the end of discovery on Novem-ber 18, 1981, Intervenor, after retaining her present coun-i ,

,- sel, made many informal discovery ' requests beginning on April 23, 1982, just one (1) working day before the start of s

'1 m

the hearing. Joint Applicants made a good faith effort to respond to these informal requests. As acknowledged by Intervenor herself, Joint Applicants provided "at least 500 documents" within three days of Intervenor's counsel's initial request. (Motion at 6) . At no time during the course of these informal requests did Joint Applicants understand the requests to include documents respecting independent reviews of the Circulating Water Test Facility and Bench Scale tests.

Based on the foregoing, there is no basis to Intervenor's claim that Joint Applicants improperly withheld

\

I Exhib'it DD from her. The document did not fall within the scope of any of Intervenor's discovery requests made prior to November 18, 1981.E Further, Joint Applicants were not obligated to produce any document requested after such date, and, in any event, the Nalco Report did not fall under any of the informal requests made after April 22, 1982.

~

l M As discussed at page 10, supra, Joint Applicants did provide Intervenor with a copy of the Nalco Report in a timely manner, e'

V. CONCLUSION Based on the discussion provided in Parts I through IV hereof, Intervenor's Motion should be denied.

Respectfully submitted

$ Ybr Arthur C. Gehr /

Charles A. Bischoff 3100 Valley Bank Center Phoenix, Arizona 85073

,i Attorneys for Joint Applicants Dated July 29, 1982 i

w I

UNITED STA"ES GF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ARIZONA PUBLIC SERVICE ) Docket Nos. STN 50-528 COMPANY, et al. ) STN 50-529

) STN 50-530 (Palo Verde Nuclear Generating )

Station, Unite 1, 2 and 3) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of " Joint Applicants' Answer To Intervonor's Motion For Reconsideration Of Board's Adraission Into Evidence Of Joint Applicants' Exhibit DD" have been served upon the following listed persons by deposit in the United States mail, properly addressed and with postage propaid, this 29th day of July, 1982.

Docketing and Service Section l U.S. Nuclear Regulatory Commission l

Washington, D.C. 20555 l

l Chairman, Maricopa County Board of Supervisors 111 South Third Avenue Phoenix, Arizona 85004 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission l Washington, D.C. 20555 Robert M. Lazo, Esq.

Chairman, Atomic Safety and Licensing Board

,- U.S. Nuclear Regulatory Commission l

Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dr. Richard F. Cole Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

. Dr. Dixon Callihan Union Carbide Corporation P. O. Box Y Oak Ridge, Tennessee 37830 Lee Scott Dewey, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Edwin J. Reis, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Rand L. Greenfield, Esq.

Assistant Attorney General P. O. Drawer 1508 Santa Fe, New Mexico 87504 Lynne Bernabei, Esq.

Harmon & Weiss 1725 I Street, N.W.

Suite 506 Washington, D.C. 20006 Arthur C #Gehr 9

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