ML20079K689
| ML20079K689 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 01/05/1983 |
| From: | Earley A HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8301100114 | |
| Download: ML20079K689 (20) | |
Text
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l Dgj{cQ LILCO, January 5, 1983
'83 J:?!-7 f00 :31 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322(OL)
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(Shoreham Nuclear Power
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Station, Unit 1)
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MOTION TO STRIKE THE TESTIMONY OF DR. FRANCISCO J.
SAMANIEGO ON TORREY PINES TECHNOLOGY'S INDEPENDENT VERIFICATION OF SHOREHAM NUCLEAR POWER STATION I.
Background
Long Island Lighting Company ("LILCO") files this MOTION TO STRIKE because Dr. Francisco J.
Samaniego and his testimony fail to satisfy the requirements for the introduction of expert testimony.
Specifically, (1) Dr. Samaniego is not properly qualified to offer testimony criticizing Torrey Pines Technology's Independent Inspection and Verification of Shoreham Nuclear Power Station ("TPT's Verification") and (2) his testimony will not assist the ASLB in evaluating the TPT Verification.
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8301100114 830105 PDR ADOCK 05000322 O
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On December 21, 1982, Suffolk County filed the direct testimony o.f Richard B. Hubbard and Dr. Samaniego on the TPT Verification.
Dr. Samaniego sponsors only a small parc of that testimony.
In the portions of the direct testimony that he i
does sponsor, Dr. Samaniego, offering himself as an expert in statistics, attacks the substantive findings of the TPT Verification.
The sole basis of this attack is an alleged failure on the part of TPT to use statistical techniques in its sampling methodology.
Cross-examination of Mr. Hubbard and Dr. Samaniego by way of deposition began on December 27, 1982, and continued through December 28, 1982.
During that cross-examination, it became evident that Dr. Samaniego, admittedly possessing exper-tise as a statistician, does not have the knowledge, either through formal training or practical experience, necessary to offer helpful or meaningful opinions on the adequacy of a con-struction verification of a nuclear power station.
As his deposition confirms, Dr. Samaniego (1) has no general knowledge of nuclear power plants or Shoreham; (2) has never studied, reviewed, designed, attempted to design or had any personal experience whatsoever with a statistically-based methodology for measuring or verifying the effectiveness of the quality assurance program or the adequacy r
l of the construction process for a nuclear power station;
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4 (3) does not know whether anyone else has developed or implemented a methodology for measuring or verifying the effectiveness of the quality assurance program or the adequacy of the construction process for a nuclear power station using statistically-based methodology; and, (4) has very limited knowledge of the Torrey Pines Report.
Consequently, he is not qualified to offer an opinion on the use of statistical methodologies in a construction veri-fication program, nor is he qualified to testify about the adequacy of non-statistical methodologies.
Moreover, without regard to his qualifications, his lack of familiarity with any aspect of nuclear power plants, including construction veri-fications, confirms that any testimony he offers would not meet the standard required for admission of expert testimony.
II.
Standard for Allowing Expert Testimony Before an ASLB l
Because the Commission Rules of Practice do not state a standard for allowing the introduction of expert testimony, the l
standard found in Rule 702 of the Federal Rules of Evidence 1/
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1/
Federal Rule of Evidence 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to (Footnote cont.'d) L
had been adopted for that purpose.
In the Matter of Duke Power Company (William B. McGuire Nuclear Station, Units 1 and 2),
ALAB-669, 15 NRC 453, 475 (1982).2/
Under the standard in Rule 702, an expert is allowed to testify and offer his opinion on a particular subject only where he is qualified by his knowledge to offer an opinion on that subject and where that opinion will assist the trier of fact to understand the evidence or determine a fact in issue.
Bridger v. Union Ry.,
355 F.2d 382, 387 (6th Cir. 1966); 11 Moore's Federal Practice $ 702.02 (1982).
As the following excerpts from his cross-examination deposition demonstrate, Dr. Samaniego fails to satisfy either of these requirements.3/
(Footnote cont.'d) determine a fact in issue, a witness quali-fied as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
2/
Although not directly on point, McGuire involved a profes-sional chemist proffered as a witness on " hydrogen burning or detonation."
Affirming exclusion of the witness, the Appeal Board focused on the actual issues in controversy and the witness' expertise in relationship to those issues.
As this Motion demonstrates, a similar focus in this case makes unmistakably clear that Dr. Samaniego's testimony should be rejected.
3/
References to the cross-examination deposition of Mr.
Hubbard and Dr. Samaniego will be referred to throughout as "Dep. Tr." followed by the appropriate page number.
III.
Dr. Samaniego Does Not Have Sufficient Knowledge To Offer an Expert Opinion on the Adequacy of TPT's Verification TPT's Verification involved a comprehensive, in-depth examination of the construction of Shoreham.
TPT reviewed the complete construction process, beginning with the procurement of items according to design requirements and examining the process through final construction inspection and turnover to startup.
During its review, TPT expended over 35,000 manhours examining the entire construction control process, a broad selection of documents, 37 systems, 75 pipe welds, over 1600 material certifications, all but one of the lifts of the pri-mary containment concrete, 2640 large bore pipe supports, and the results of 53 preoperational tests.
Testimony of Louis D.
Johnson Regarding Torrey Pines Technology's Independent Verification of Shoreham Nuclear Power Station at 5-7.
Dr. Samaniego attacks the conclusions reached by TPT because, in his opinion, TPT did not use a statistically-or probability-based sampling methodology.
Hubbard-Samaniego Testimony at 27-30.
Dr. Samaniego makes his attack, however, without any knowledge whatsoever regarding the subject matter of TPT's Verification.
Dr. Samaniego has no general knowledge regarding nuclear power plants or Shoreham: ~
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Q.
Prior to your involvement in this matter, Mr. Samaniego, have you had occasion
'l to consult in any fashion with respect to an ongoing or prospective licensing or construc-tion permit hearing in front of the Nuclear Regulatory Commission?
A.
No, I haven't had direct experience with that kind of consulting or role, although, I must say in this case, I've been asked to comment on statistical -- general statistical methods and sampling techniques in particular and that has been an area that I've consulted fairly extensively in.
Q.
As a general matter, though, when you say it's -- you have consulted in these areas, I gather these areas do not involve the nuclear industry.
A.
That's true.
This is my first project I've been involved in in the nuclear area.
Dep. Tr. at 8, lines 9 through 24.
Q.
(By Mr. Powell)
Mr. Samaniego, have you ever been to a nuclear power station?
A.
No.
Q.
Can you identify the type of nuclear reactor at the Shoreham Nuclear Power Station?
l A.
No, and I would in fact attempt to avoid getting enmeshed in details of that sort.
The specific areas of engineering expertise that might in fact have full knowledge -- yield full knowledge of a nuclear power plant, and Shoreham in particu-lar, are quite separate from discussion of statistics on which my testimony is con-cerned.
Dep. Tr. at 45, lines 13-23..-
Q.
(By Mr. Powell)
I take it, then, Mr.
Samaniego, that you have not reviewed Chapter 17.1 of the Shoreham FSAR?
A.
That's correct -- as far as I can recollect.
Q.
Have you reviewed the LILCO and Stone
& Webster Quality Assurance manuals with respect to Shoreham?
A.
No, I haven't.
Q.
I take it, then, that you do not know what elements comprise the quality assurance program at Shoreham?
A.
I don't know them in their entirety, this is correct.
Q.
How are you familiar with them partially?
A.
Through my examination of testimony filed in this case.
I've seen, read a vari-ety of references to QA procedures in various settings.
Dep. Tr. at 60, lines 14 through 26.
Q.
Mr. Samaniego, what is an E&DCR --
and by that I mean capital E-ampersand-capital D-capital C-capital R?
A.
I attempted to decipher these common pseudonyms at one time, and I think this is one I did manage to locate a definition for.
If I'm not mistaken, the "D" stands for discrepancy, but I -- I would just be guessing at this point if I tried to reconstruct what that -- what that pseudonym means.
Q.
Do you happen to know what the --
pardon me, were you finished, sir?
A.
-- reconstruct what that pseudonym means..
Q.
Do you happen to recall whether an E&DCR would be a design document?
i A.
I don't recall.
Dep. Tr. at 63, lines 2 through 15.
Dr. Samaniego has never studied, reviewed, designed or I
attempted to design, or had any personal experience whatsoever with a statistically-based sampling methodology for measuring either the effectiveness of quality assurance programs or the adequacy of the construction process for a nuclear power station:
Q.
...Am I correct that you have no experience in preparing a statistically-based sampling methodology specifically relating to the design, construction or operation of a nuclear power station?
A.
I have no experience prior to my involvement in this case, that's right.
Q.
Mr. Samaniego, in looking at your resume, which is attached to the direct tes-timony that you and Mr. Hubbard filed, I see that you are a prolific man.
Can you tell me whether any of these papers or publications specifically relate to the applicability of statistics and statistically sampling studies for the design, construction or operation of a nuclear power station?
A.
No, they do not.
Q.
I gather from your resume and from Page 2, I believe, of your testimony, that you have consulted a fair amount.
Prior to your involvement in this case, has any of your consulting activity specifically related to the applicability of statistics and statistically-based sampling methodologies to the design, construction or operation of a nuclear power plant? 1
A.
No, I have not.
Q.
For how many years have you taught, Mr. Samaniego?
A.
I have -- I taught high school level, mathematics, since 1967 through 1970, and I've taught at university -- at the uni-versity level since 1971.
Q.
Have any of your courses that you have ever taught specifically referenced the applicability of statistically-based sampling methodology to an inspection or verification of the design, construction or operation of a nuclear power station?
A.
Only very obliquely.
I have taught courses in reliability theory, and certain experiments in.the area of life testing are relevant.
I've used examples of, for ex-ample, experiments involving radioactive material.
But with that kind of minor excep-tion, the answer would be no, my teaching does not generally involve that kind of activity.
Q.
Have you ever undertaken to design a statistically-based sampling methodology for a design or construction review or veri-fication of a nuclear power station?
A.
No, I haven't.
Q.
Have you ever undertaken to design a l
statistically-based sampling methodology for a quality assurance verification of a nuclear power station?
A.
No, I haven't.
l Dep. Tr. at 36, line 28 through page 38, line 16.
In addition to his own inexperience with respect to construction verification sampling methodologies, Dr. Samaniego does not know whether anyone has developed a methodology for '.
measuring or verifying the effectiveness of the quality assurance program or the adequacy of the construction process for a nuclear power plant using statistically-based sampling methodology:
Q.
(By Mr. Powell)
Mr. Samaniego, I gather that other than what Mr. Hubbard has just made reference to, you were not previously aware of any statistically-based sampling methodology that was designed solely for the purpose of a design review of a nuclear power station; is that not correct?
A.
That's true.
Dep. Tr. at 39, lines 19 through 25.
Dr. Samaniego has not even attempted to learn if there is a standard practice in the nuclear industry with respect to construction verification methodology:
Q.
(By Mr. Powell)
Mr. Samaniego, other than the examples given by Mr. Hubbard, the relevance of which I by no means concede, are you aware of any statistically-based sampling methodology having been utilized in any veri-l fication or inspection process of the con-struction or quality assurance programs of a nuclear power station?
A.
I would have to answer no.
But then it must be clear to you that my -- the range of applications that I've been involved with have not included nuclear power plants in the past, so it may or may not be standard practice to use statistical methods in l
nuclear power plants.
I would like to add I
that I think that it should be standard practice even if --
Q.
I'm confident of that.
t l
A.
-- even if it is nowhere used today..
Q.
When you say that it may or may not be used, then any -- I gather you're saying you don't know whether it is?
A.
I -- I -- I don't know what the state of the art is at the present time.
I am only familiar with Shoreham -- I mean, in depth I'm only familiar with the Shoreham case and i
the Torrey Plant report and related material.
Q.
So your testimony, then, that statistically-based sampling methodologies should be used in these types of veri-fications is not based on your actual experi-ence or your familiarity with anyone else's actual experience in utilizing such methodologies; is that not correct?
A.
In the nuclear power plant area.
Q.
Yes, sir, that's what I'm interested in.
A.
Okay.
It's based solely on my inspection of the practices related to the current report by Torrey Pines Technology and practices at the Shoreham Plant in general.
Dep. Tr. at 41, line 14 through page 42, line 16.
Despite the fact that he has an admitted lack of knowl-edge regarding the construction of nuclear power stations, or independent verifications of that construction, Dr. Samaniego spent less than ten (10) hours reviewing TPT's final report, forming his conclusions regarding their methodology, and drafting the testimony he filed on December 21, 1982:
Q.
(By Mr. Powell)
Mr. Samaniego, when did you first see the Torrey Pines Final Report?
A.
December 17th. e
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Q.
December 17th?
A.
Yes.
Dep. Tr. at 15, lines 24 through 28.
Q.
Do you recall what day of the week December 17th was?
A.
I can in a moment.
Q.
Let me show you my pocket calander [ sic]
for 1982 and --
A.
Friday.
Q.
And your testimony was submitted on the following Tuesday, December the 21st, is that not correct?
A.
I believe that's right.
Q.
Can you estimate for me the number of hours you spent reviewing the Torrey Pines Final Report prior to the submission of your testimony on December 21?
A.
I spent, I'd say, five hours examining the report.
I read certain por-tions in complete detail and surveyed others.
Q.
Can you identify for me the portions that you read in complete detail?
We've got two versions of report here, if you'd like to take a moment.
Please feel free to do so.
WITNESS SAMANIEGO:
Okay.
I read the Executive Summary, which is Volume I of the report; I read a good portion of Volume II, was particularly interested in tasks B, C, and D, since those were the primary areas in which sampling methodology seemed to be employed; I read portions of the rest of the reports in Volume II; I did not examine Volume III, which reports on particular findings.
I also examined the testimony of Louis Johnson on the Torrey Pines Report, and in fact have cited it in my testimony.
Q.
(By Mr. Powell)
When did you first see Mr. Johnson's testimony?
A.
I first had access to it again on the 17th.
Q.
Did you have a chance to review Mr.
Novarro's testimony?
A.
I did glance at that.
Q.
I gather you read Mr. Johnson's in its entirety?
A.
I did.
Q.
Did you read Mr. Novarro's in its entirety?
A.
I skipped portions of Mr. Novarro's testimony that dealt with findings.
Those types of -- that type of discussion did not have much statistical content.
j Q.
Can you estimate for me the amount of l
time you spent with the testimony submitted to Messieurs Johnson and Novarro?
A.
I don't know, less than an hour, maybe an hour.
Q.
And would that be in addition to the time you spent with the Torrey Pines Report, or included within it?
A.
I guess it's -- it's all collected.
I spent roughly five hours on the 17th becoming familiar with the written material on which my testimony is based.
Q.
Do I correctly gather, then, that you did not attempt to draft your testimony until the 17th? f
A.
That's right.
Q.
I sense you may have had something you wanted to add.
Please feel free to do so.
A.
I should say that I took Mr.
Johnson's testimony -- I was in San Jose on the 17th developing -- looking at these reports and developing testimony and I took with me material, including Johnson's testi-mony and the executive summary, to develop possible further comments before the testi-mony was filed.
I had discussions with the attorneys on Monday, the 20th and we finalized the testimony at that time.
There was some additional thought and study in addition to the effort on the 17th.
Q.
Again, sir, can you estimate the num-ber of hours you spent in preparing the tes-timony in addition to what you spent on the 17th?
And when I say "in preparing the tes-timony," I also mean in reviewing the Torrey Pines Report and the Johnson testimony.
A.
Yes.
I perhaps spent three to four hours over the weekend, including discussions on Monday.
Dep. Tr. at 20, line 13 through line 28; page 21, line 5 through page 23, line 26.
Dr. Samaniego attacks the conclusions of TPT, which he I
believes are based upon the use of experience and judgment, yet I
did not review the resumes of TPT's personnel:
Q.
(By Mr. Powell)
Mr. Samaniego, have you had a chance to review in any fashion the resumes of the Torrey Pines personnel involved in their verification effort?
A.
Only Mr. Johnson's resume.
Dep. Tr. at 70, lines 17 through 20.
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1 Dr. Samaniego justifies his total lack of knowledge regarding the subject of his testimony, and his total' lack of effort to acquire any of that knowledge, by stating that he can attack TPT's methodology without any knowledge of the object of I
their study.
In fact, despite not being familiar with the sub-t jects to which they might be applied, Dr. Samaniego believes that his opinions regarding sampling methodology are applicable i
in all contexts, no matter what the circumstances:
Q.
So is it your testimony, then, that the science of statistics is broadly appli-cable to anything?
A.
Any -- that's right.
I -- my testi-l mony is that -- my answer on this question is that the practice of statistics is applicable to any situation where one wants to make gen-eral conclusions about a population of sub-jects, based on studying a subgroup of those i
subjects, and the subjects can be virtually i
anything.
Q.
And is it also your testimony that the variety and complexity of the subject matter is essentially irrelevant with respect to the question whether statistical methodology can be effectively applied to that subject matter?
WITNESS SAMINEGO [ sic]:
I would say it
-- it is irrelevant with regard to the gen-eral applicability of statistics.
The spe-cial -- special methods may be required for the analysis of such a population, but there are well-defined methods within the discipline of statistics to deal with it.
Dep. Tr. at 34, line 28 through page 35, line 11 and page 36, line 3 through 8.,
Q.
For a statistician such as yourself to render an opinion regarding the suitabil-ity of a particular subject matter to statistically-based sampling methodology, am I not correct that your view is that the statistician need not have a detailed famil-iarity with the complexities involved in that subject matter?
By way of explanation, I i
gather that you've already said that you would rely on someone else to inform you in that regard.
All I want to know is in your opinion, as a statistician, do you need to know those details in order to make an initial judgment whether statistically-based methodology can appropriately be used?
A.
Okay.
I would say that I would feel quite competent in making the judgment with regard to suitability.
Q.
In the absence --
A.
In the absence of detailed familiar-ity with the subject matter.
Some familiar-ity, of course, is required, but I would still say that a statistician can make judg-ments about the suitability and applicability of statistics quite independently.
1 Dep. Tr. at 48, line 19 through page 49, line 10.
The fallacy in Dr. Samaniego's justification is that it is an opinion without a foundation.
Dr. Samaniego's opinions regarding construction verification methodology have no basis l
given his total lack of knowledge regarding the construction l
process at Shoreham -- or at any nuclear power station.
He simply asserts that statistical methods are applicable to any population and he does not need to know anything about nuclear plant construction, nuclear plant construction verification inspections or sampling techniques used in such verification i t
inspections to conclude that such verification inspections are invalid unless statistical sampling methods are used.
In short, contrary to Dr. Samaniego's assertions, it is impossible for him to know whether his opinions validly apply to subjects about which he has no knowledge.
Without this knowledge, Dr.
Samaniego is not qualified to give the opinions contained in his testimony.
IV.
Dr. Samaniego's Testimony Will Not Assist The ASLB in Evaluating TPT's Verification In addition to lacking the requisite knowledge to give the opinions that he asserts in his direct testimony, Dr.
Samaniego's testimony cannot offer any assistance in evaluating TPT's Verification.
As the previous section demonstrates, Dr.
Samaniego has no substantive knowledge concerning nuclear power plants or the details of TPT's Verification Program.
Consequently, any discussion of statistical methodology can only be done in the abstract.
But the Board is not asked to decide the abstract question of whether statistical methods may l
l theoretically be applicable to all human endeavors.
Nor is the Board called upon to consider whether statistical sampling methodologies could have been used by TPT.
Rather, the Board must address the question whether the Torrey Pine methodology is an appropriate means of verifying the adequacy of the con-t struction of a nuclear power plant.
Clearly, Dr. Samaniego has l
O nothing to offer on this question.
Thus, his testimony is of little or no assistance to the ASLB in making an objective evaluation of TPT's Verification.
V.
Conclusion For the foregoing reasons, the testimony of Dr.
Samaniego on TPT's Verification should be struck and he should not be permitted to testify on this matter.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY By
'2,
h, 6?
Mf Couns T.
S.
Ellis, III Anthony F. Earley, Jr.
W.
Jeffery Edwards Hunton & Williams Post Office Box 1535 Richmond, Virginia 23212 Counsel i
l r l
LILCO, January 5, 1983 CERTIFICATE OF SERVICE i
In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322 (OL)
I hereby certify that copies of LILCO's MOTION TO STRIKE THE TESTIMONY OF DR. FRANCISCO J.
SAMANIEGO ON TORREY PINES TECHNOLOGY'S INDEPENDENT VERIFICATION OF SHOREHAM NUCLEAR POWER STATION were served upon the following by first-class,
mail, postage prepaid, by Federal Express (as indicated by an asterisk), or by hand (as indicated by two asterisks):
Lawrence Brenner, Esq.**
Secretary of the Commission Administrative Judge U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Panel Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board Panel U.S. Nuclear Regulatory Dr. Peter A. Morris **
Commission Administrative Judge Washington, D.C.
20555 Atomic Safety and Licensing Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Dr. James H. Carpenter **
Administrative Judge Daniel F. Brown, Esq.
Atomic Safety and Licensing Attorney Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555
Bernard M. Bordenick, Esq.**
David J. Gilmartin, Esq.
David A. Repka, Esq.
Attn:
Patricia A. Dempsey, Esq.
U.S. Nuclear Regulatory County Attorney Commission Suffolk County Department of Law Washington, D.C.
20555 Veterans Memorial Highway Hauppauge, New York 11787 Herbert H. Brown, Esq.**
Stephen B.
Latham, Esq.*
Lawrence Coe Lanpher, Esq.
Twomey, Latham & Shea Karla J. Letsche, Esq.
33 West Second Street Kirkpatrick, Lockhart, Hill, P.
O.
Box 398 Christopher & Phillips Riverhead, New York 11901 8th Floor 1900 M Street, N.W.
Ralph Shapiro, Esq.*
Washington, D.C.
20036 Cammer and Shapiro, P.C.
9 East 40th Street Mr. Mark W. Goldsmith New York, New York 10016 Energy Research Group 4001 Totten Pond Road Howard L. Blau, Esq.
Waltham, Massachusetts 02154 217 Newbridge Road Hicksville, New York 11801 MHB Technical Associates 1723 Hamilton Avenue Matthew J. Kelly, Esq.
Suite K State of New York San Jose, California 95125 Department of Public Service Three Empire State Plaza Mr. Jay Dunkleberger Albany, New York 12223 New York State Energy Office Agency Building 2 Empire State Plaza Albany, New York 12223 W<
6%_
Ant'hony F. Fgrie M r.
g Hunton & Williams 707 East Main Street P.O.
Box 1535 Richmond, Virginia 23212 DATED:
January 5, 1983 I
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