ML20058H661

Response Opposing Pl Hourihan Motion for Reconsideration of ASLB Admission Into Evidence of Joint Applicants Exhibit DD Exhibit Correctly Entered Into Evidence,Meets Reliability Test & cross-examination Was Allowed.W/Certificate of Svc

ML20058H661
Person / Time
Site:	Palo Verde
Issue date:	08/05/1982
From:	Dewey L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8208090003
Download: ML20058H661 (12)

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, 08/05/82 UNITED STATES OF 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, Units 1, 2 and 3)) )

NRC STAFF'S RESPONSE TO INTERVEN0R'S MOTION FOR RECONSIDERATION OF BOARD'S ADMISSION INTO EVIDENCE OF JOINT APPLICANTS' EXHIBIT DD I. INTRODUCTION During the Palo Verde Hearing before the Atomic Safety and Licensing Board (" Licensing Board") on July 25, 1982, the Joint Applicants submitted for entry as evidence an independent review of the tests done in regard to its Water Reclamation Facility. Intervenor Patricia Lee Hourihan objected to the admission of this report, designated as Exhibit DD, based on its failure to be produced during discovery and an alleged lack of authentication. The Licensing Board overruled the Intervenor's objections and entered Exhibit DD into evidence. (Tr. 2690.) Pursuant to 10 C.F.R.

Q 2.730, the Intervenor has filed a motion requesting this Licensing Board to reconsider its admission into evidence of Joint Applicants' Exhibit DD. In responding to the Intervenors request, the Staff files this response, taking the position that the Intervenor's objections should be dismissed as Exhibit DD was properly entered into evidence.

DESIGNATED ORIGINAL 8208090003 820805 Certified By Sk) ( N PDR ADOCK 05000528 0807 G PDR

, II. THE INTERVEfiOR'S HEARSAY OBJECTION SHOULD BE DISMISSED AS EXHIBIT DD WAS CORRECTLY ENTERED INTO EVIDENCE A. Rules of Evidence in NRC Proceedings While every party to an NRC proceeding "shall have the right to present such oral and documentary evidence and rebuttal evidence and conduct such cross-examination as necessary for full and true disclosure of the facts" (10 C.F.R. 5 2.743(a)), not all evidence offered by a party is admissible. Section 2.743(c) of the Commission's regulations requires that evidence be " relevant, material and reliable," before it may be admitted into the proceeding.

The Commission's regulations do not expressly address the use and applicability of the Federal Rules of Evidence (" Federal Rules") in resolving evidentiary disputes in NRC adjudicatory proceedings. However, the Commission states in Appendix A to 10 C.F.R. Part 2 that:

In passing on objections, the board, while not bound to view proferred evidence according to its admissibility under strict application of the rules of evidence in judicial proceedings, should exclude evidence that is irrelevant to issues in the case 10 C.F.R. Part 2, Appendix A,V.(d)(7).

In addition, the Atomic Safety and Licensing Appeal Board (" Appeal Board") has stated that it is " guided by the rules and practices of the Federal Courts," although it does not follow the Federal Rules completely.

Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-379, 5 NRC 565,

, 568 n.13 (1977); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),

ALAB-355, 4 NRC 397, 411-412 (1976). Before guidance is taken from the Federal Rules, there must be an " inquiry into whether the situations are truly similar." Midland, supra, 5 NRC at 568 n.13. Therefore, while not dispositive of disputes regarding the admissibility of evidence, the Federal Rules of Evidence may be relied upon to provide guidance as to the resolution of evidentiary disputes in NRC licensing hearings where the substantive policies behind the Federal Rules are relevant in the context of these hearings.

B. Admissibility of Hearsay Evidence In contrast with the Federal judicial rule, hearsay is generally admissible in administrative hearings. See, eg ., Richardson v.

Perales, 402 U.S. 389, 470-10 (1971); Willapoint Oysters v. Ewing, 174 F.2d 676, 690 (9th Cir.), cert. denied, 338 U.S. 860 (1949). This liberal approach to hearsay in administrative proceedings has been incorporated into the Administrative Procedures Act. See Section 7(c), 5 U.S.C. 6 556 (1976).

In NRC proceedings, despite the fact that the hearsay rule used in Federal court proceedings does not strictly apply, evidence still must be

" reliable" if it is to be admitted. 10 C.F.R. 5 2.743(c). Thus, while evidence has on occasion been excluded solely due to its " hearsay" character, Commonwealth Edison Co. (Dresden Station, Units 2 and 3),

LBP-81-37, 14 NRC 708, 730, n.66 (1981), the test of whether evidence is

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reliable is more properly applied. Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA, 2A, IB and 2B), ALAB-367, 5 NRC 92, 121 (1977). o To be admitted into evidence the hearsay evidence must have pro-bative weight. The probative value of the hearsay must be derived in context from the entire record. See, eg ., Richardson v. Perales, supra, 402 U.S. at 408 (hearsay must have rational probative force); Reel v.

United States, 456 F.2d 777 (Ct. C1. 1972) (hearsay must be based on entire record); Hoonsilapa v. INS, 575 F.2d 735 (9th Cir.1978) (hearsay admissible if probative and its use is " fundamentally fair").

C. Admissibility of Exhibit DD The Staff's position is that an analysis of Exhibit DD in the light of the rules of evidence governing NRC licensing proceedings, should result in its inclusion as evidence. This exhibit clearly meets the reliability test of 10 C.F.R. Q 2.743(c) and the Intervenor was accorded a substantial opportunity for cross-examination of Dr. Bingham in regard to the subject matter of the NALC0 report.

As to the report itself, there are a number of indicia of reliability.

The NALC0 report was undertaken under contract to review the .esults of the Applicant's Water Reclamation Si.udies. (Bingham ff. Tr. 2585, pp. 14-15.) Such a study would be expected to have been done and re-ported in a thorough and accurate manner. The thoroughness and accuracy of the report are underscored by their consistency with the Applicants' test results and the subsequent reliance upon these results in developing

, this system for the Palo Verde facility. In fact, the Intervenor does not seriously question the accuracy of the analysis in reporting NALC0's test results and conclusions but merely differs as to the conclusion which NALCO reached.M The Intervenor does question whether this document is what it is purported to be, an analyst's report which was prepared in 1974 and kept in the Applicants' files since then. This challenge is based on the lack of large black numbers on the outside of the NALC0 report as compared to other documents received from the Applicant. (Tr. 2582.) However, in Staff's view this inconsistency was adequately explained by Mr. Bingham who stated that this difference resulted from the fact that the documents came from different files. (Tr. at 2672.) The Intervenor has not provided any reasonable basis to question Mr. Bingham's veracity concerning this explanation.

The NALC0 report is also reliable since there was a knowledgeable witness to sponsor this document. As stated by the Appeal Board, "[t]he presence of . . . a sponser is necessary to permit [a] proffered statement to be meaningfully tested for reliability." Pacific Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant, Unit 2), ALAB-027, 4 AEC 652, 658 (1971). It is the Staff's opinion that Mr. Bingham and Intervenor's cross-examination of him satisfy this requirement. In Diablo Canyon, the Appeal Board excluded evidence based on the lack of a sponsor. However,  !

in that case, the proffered sponsor was a layman seeking to enter data l into evidence which he did not have the expertise to explain. _I d .

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y Intervenor's Motion at 5.

In the present case, the situation is quite different since Mr. Bingham is eminently qualified as an expert witness on this subject.

Mr. Bingham performed the tests that the NALC0 analysis examined and had recently reviewed this report in preparing his rebuttal testimony.

(Tr. 2672.) Therefore, Mr. Bingham would appear to have been sufficiently knowledgeable of this report to afford the Intervenor with adequate op-portunity for a full and complete cross-examination. In fact, counsel for the Intervenor recognized Mr. Bingham's knowledge of the material dealt with in the report, noting that Exhibit DD " supported many of the points that Mr. Bingham was putting across or saying in his testimony."

(Tr. 2685.)

Finally, Exhibit DD should also be admitted under the decision in Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-339, 4 NRC 20. In this case, an expert witness offered testimony based on articles in newspapers and other periodicals.

The Appeal Board allowed this testimony into evidence over the Staff's hearsay objection, stating that:

I m 'ar as we can determine, none of the contents of the source material pointed to by Dr. Riebe, h's been challenged by the applicant or staff as either incorrect or inconsistent with other disclosures in the record. Rather, the dispute seems to center on the conclusions which Dr. Rieber drew from the facts asserted in those sources and elsewhere.

This being so, we see no impediment to our taking into account the Rieber testimony in evaluating those conclusions . . .

M.at31.

Nowhere in the record has the Intervenor challenged the accuracy of these test .results. As in Marble Hill, "the dispute seems to center on

the conclusions" of Exhibit DD. In fact, the Intervenor has stated that she, through her expert witness, Mr. Robinson, was merely challenging "the basic conclusion of the NALC0 Report i.e., that the water reclamation studies provided enough data to formulate a reliable recirculating cooling water treatment program using effluent as cooling water."2_/

In summary, the hearsay rules under the Federal Rules of Evidence are designed to prevent evidence of questionable reliability from being presented to lay jurors who may mishandle this information. We are not before such a tribunal but are before a Licensing Board that has the experience and expertise to weigh this evidence for what it is worth. To exclude this evidence in light of the report's inherent reliability and the Intervenor's opportunity to cross-examine Mr. Bingham would be incon-sistent with the Board's duty under the regulations to allow the pre-sentation of the evidence necessary "for full and true disclosure of the facts." 10 C.F.R. 5 2.743(a). Any inconsistencies due to the document's hearsay nature should be dealt with as a matter of weight given by the Board, based on its probative value on the face of the entire record.

See, Richardson v. Perales, 402 U.S. at 408; Reil v. United States, 456 F.2d at 780. Therefore, it is the Staff's position that Exhibit DD should be admitted despite its hearsay character.

D. The Intervenor Has Waived Her Right To Object To The Admission Of Exhibit DD On Hearsay Grounds During the June 25, 1982 hearing, the only basis furnished by counsel for Intervenor for objecting to Exhibit DD was that this 2] Intervenor's Motion at 5.

document was not provided to the Intervenor during discovery and that in her view the document was not authenticated because it had different type markings on it than other documents previously supplied by the Applicant.

(Tr. 2582-2584, 2684-2685). At no time during the hearing did the Inter-venor object to the admission of this document on hearsay grounds.

Intervenor's hearsay objection was not raised until the subsequent motion for reconsideration was filed on July 16, 1982.

Rule 103(a) of the Federal Rules of Evidence states that error may not be predicated upon an evidentiary ruling unless ". . . a timely ob-jection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context."

The Appeal Board has favorably cited the use of this rule to exclude evi-dentiary objections on appeals raised to it. Florida Power & Light Co.

(St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-335, 3 NRC 830, 842 at n.76 (1976); Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B and 2B), ALAB-463, 7 NRC 341, 342 at n.90 (1978). However, the Board has also disregarded this rule as a matter of discretion when it was concerned "with the substance of the matter." Tennessee Valley Authority (Hartsville Nuclear Plants, Units 1A, 2A, 1B and 2B), ALAB-467, 7 NRC 459, 462 (1978).

Staff believes as a matter of judicial efficiency and fairness that the Board should exclude from consideration the Intervenor's untimely hearsay arguments. The Intervenor received the Exhibit DD and was put on notice Mr. Bingham would sponsor it at least two weeks before he testified.

She thus had ample opportunity to prepare cross-examination. If she had e .

1 any questions about Mr. Bingham's qualifications to sponsor this document, they should have been raised at that time and not now. The expense and time required to reconvene the hearing and ask appropriate questions of i Mr. Bingham to determine if his qualifications satisfy the Intervenor is unwarranted, particularly in light of her failure to object at the hearing.

If however the Board does consider the late-filed hearsay objection, as l previously explained, any objections as to the hearsay character of the document should go to its weight, not its admissibility.

III. UNDER THE NRC DISCOVERY RULES, EXHIBIT DD SHOULD BE ENTERED INTO EVIDENCE Much of the discovery carried on in regard to the Water Reclamation System was done informally, including informal requests for documents.

(Tr. 2581. ) As the Federal Rules of Civil Procedure have no rule governing l such procedures, this Board is free to determine the parameters of this i

f means of discovery. General Electric Company (Vallecitos Nuclear Center I - General Electric Test Reactor), LBP-78-33, 8 NRC 461, ~465 (1978);

Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), LBP-78-37, i

8 NRC 575, 580-81 (1978). Based on the facts of this case, this Licensing i

Board should allow the submission of Exhibit DD into evidence.

First, there is no indication in the record of this case of bad faith on the part of the Applicants in not supplying this information. The f

record indicates that the Applicants answered every request by turning over large amount of documents to the Intervenor. (Tr. 2582, 2583.)

This was particularly true of test results which the Intervenor explicitly requested. (Tr. 2383, 2584.) In addition, the Applicants explained that  :

despite the failure to specify the exact category of documents that were

desired, this report would have been given to the Intervenor except that it was overlooked. Mr. Bingham testified that he had forgotten the report which was produced in 1974. (Tr.2672-73.) He further testified that it was probably not given to Intervenor because it was overlooked'when Bechtel

" combed through eight or so yea s of voluminous files" for documents dealing with the Water Reclamation Facility. (Tr. 2671.) The lack of bad faith in producing this document is supported by the fact that Mr. Bingham did not use it in preparing his direct testi)nony though the report substantially supported his position (Tr. 2685) and that other

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consultant's reports which were not explicitly requested were turned over to the Intervenor. (Tr. 2689.)

Another reason that Exhibit DD should be accepted into evidence is that the Intervenor suffered no great prejudice from failure to receive this document early on in discovery. It is true that, Exhibit DD was not available to the Intervenor for the preparation of' her expert's testimony.

However, this is equally true as regard the Applicants' expert, Mr. Bingham.

Mr. Bingham used this report only in regard to the preparation of his rebuttal testimony. In regard to this testimony, the Intervenor's attorney L., was provided with this exhibit around the 15th of June, providing her ample time to consult with her experts to prepare questions for cross-examination.

Based on these facts, the Staff believes that Exhibit DD should be entered into evidence. To exclude this exhibit, this Board would have to exclude evidence " required for full and true disclosure of the facts,"

10 C.F.R.-6 2.743(a), without good cause. .

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.s IV. CONCLUSION For the above stated reasons, Interven~or's Motion For Reconsideration should be denied.

Respectfully submitted, a A

• tO Lee Scott Dewey

(,

Counsel for NRC Staff )

1 I

Dated at Bethesda, Maryland i this 5th day of August,1982.

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UNITED STATES OF 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, Units 1, 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO INTERVEN0R'S MOTION FOR RECONSIDERATION OF BOARD'S ADMISSION INTO EVIDENCE OF JOINT APPLICANTS' EXHIBIT DD" in the above-captioned proceeding 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 5th day of August, 1982:

Robert M. Lazo, Esq., Chairman

• Administrative Judge Ms. Lee Hourihan Atomic Safety and Licensing Board 6413 S. 26th Street U.S. Nuclear Regulatory Commission Phoenix, AZ 85040 Washington, DC 20555 Atomic Safety and Licensing Dr. Richard F. Cole

• Board Panel

• Administrative Judge U.S. Nuclear Regulatory Comission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Atomic Safety and Licensing Dr. Dixon Callihan Appeal Board

• Administrative Judge U.S. Nuclear Regulatory Commission Union Carbide Corporation Washington, DC 20555 P.O. Box Y Oak Ridge, TN 37830 Docketing and Service Section*

Arthur C. Gehr, Esq. Office of the Secretary Charles Bischoff, Esq. U.S. Nuclear Regulatory Comission Snell & Wilmer Washington, DC 20555 3100 Valley Center Phoenix, AZ 85073 Lynne Bernabei, Esq.

Harmon & Weiss Rand L. Greenfield 1725 I Street, N.W.

Assistant Attorney General Suite 506 P.O. Drawer 1508 Washington, D.C. 20006 Santa Fe, New Mexico 87504-1508 Q  :

W ^J Lee Scott Dewey Counsel for NRC Staff