ML20082E434
| ML20082E434 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 11/21/1983 |
| From: | Wetterhahn M CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20082E435 | List: |
| References | |
| NUDOCS 8311280198 | |
| Download: ML20082E434 (7) | |
Text
_
00CNETED USNRC 3
0923 E0 M
't UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
, cc.e e u n
.c i Before the Atomic Safety'and Licensing Board.
In the Matter of
)
)
Philadelphia Electric Company
)
Docket Nos. 50-352
)
50-353 (Limerick Generating Station,
)
Units 1 and 2)
)
APPLICANT'S MOTION TO STRIKE FRANK R. ROMANO'S TESTIMONY ON CONTENTION V-4 On November 14, 1983, Mr. Frank R.
Romano filed the
-testimony of the Air and Water Pollution Patrol ("AWPP") on 1
Contention V-4.
In accordance with the Atomic Safety and Licensing Board's " Memorandum and Order Confirming Prehear-ing Conference Rulings on Status of Certain Parties and Schedule Regarding Certain Contentions" (October 20, 1983),
Applicant hereby moves that this document be stricken on the grounds that it is not competent, material, or relevant
-evidence and that AWPP has failed to demonstrate that Mr.
Romano is qualified to be an expert witness such that he may give the opinion testimony contained therein.
No Qualifications to Give Opinion Evidence The Commission's Rules of Practice do not expressly state the standard for judging whether a prospective witness 1/
Written Testimony by AWPP Relating to Carturetor Ice Contention, V-4, November 14, 1983
(" Testimony").
2 qualifies as an expert.
The Appeal Board, however, has held that the standard incorporated in' Federal Rule 702 is suitable for determining a claim of expert status.2_/
That rule allows a witness qualified as an expert by " knowledge, skill, experience, training, or education" to testify "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue."3_/
The
" possession of the required qualifications by a particular person offered as a witness, must be expressly shown by the party offering him."
2 Wigmore, Evidence S 560, at pp. 640-41 (Ed. 1940)
(empha-sis in original),
quoted in Pacific Gas & Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1& 2), ALAB-410, 5 NRC 1398, 1405 (1977).
AWPP offers Mr.
Romano as its expert witness on l
Contention V-4.
- Thus, in accordance with Commission l
I precedents, AWPP must expressly show that Mr.
Romano possesses the requisite qualifications to make the statements and give the expert opinions contained in his testimony.II AWPP has not done so.
Rather, Mr.
Romano i
l
-2/
Duke Power Co.
(William B.
McGuire Nuclear Station, l
Units 1 and 2), ALAB-669, 15 NRC 453, 475 (1982).
3/
Id.
-4/
While Mr. Romano is not an attorney, the standards for presentation of expert testimony were discussed with him in the context of the motion for summary disposition.
-.,, - ~
states only that he received unspecified
" Bachelor and Master degrees Science at Penn State,"b! the pursuit of which
" inclu,..
courses in took chemistry and physics involving principles of atmospharic composition and behavior."6_/
He does not list or describe the content of these courses.
This vague statement attempts to leave the impression that Mr. Romano is schooled in the principles of meteorology and thus may testify regarding the effects of cooling towers on the atmosphere.
Upon closer examination, however, Mr. Romano is apparently alleging that because he (or anyone else) has taken some basic courses in chemistry and physics, he is qualified to present expert testimony regarding the science of meteorology, in general, and the 1.
operation and effects of cooling towers on the atmosphere, in particular.
This is clearly not so.
Mr. Romano also states that he has "over twenty-five years experience in scientific studies and laboratory work since leaving Penn with experience in water analysis and various State aerial studies 3I However, he fails to specify the nature of the "' aerial studies" or explain whether any of this experience involved meteorological studies or is relevant to proving his expertise in the field.
5/
Testimony at 1.
6/
Id.
7/
Id.
Mr. Romano further states that he is a licensed pi-lot.E!
However, this fact alone does not qualify him as an expert in meteorology, cooling tower
- effects, flight training nor in the operation of aircraft engines.
Neither does the fact that he subscribes to various flying maga-l zines, attends seminars, and is a member of the Airplane Owners and Operators Association.1 Mr.
Rcmano is not 1
l competent to testify on the effects of the Limerick cooling tower plumes on the surrounding air space nor on the effects of these plumes on the potential for carburetor icing.
Opinion testimony is admissible only when presented by an expert witness and " supported by a. rational explanation which reasonable men could accept as more probably correct than not correct."
Nanda v.
Ford Motor Co.,
39 F.2d 213, 219 (7th Cir. 1975), cited in Portland General Electric Co.
.(Pebble Springs Nuclear Plant, Units 1 & 2), " Order Denying Intervenors' Motion to Strike Certain Testimony of Gordon T.
C. Taylor," November 4, 1976.
l Without providing any basis, Mr. Romano dismisses the l.
studies on plume behavior cited in Applicant's memorandum in' disposition.bI He support of its motion for summary 8/
Id.
9/
Id.
10/
Applicant's Memorandum in Support of its Motion for Summary Disposition of Contention V-4 (September 27, 1983).
1.
-asserts that a study must be done of the invisible plume
~
adjacent to the visible plume and states without foundation his -evaluation of the Applicant's testimony regarding conditions ~ in the plume.Nl He
- asserts, again without citation, that the cooling tower plumes will create dewpoint conditions that otherwise might not exist and that these conditions will exist at locations far beyond one-quarter plumes.12/
i mile due to the buoyancy of the Mr.
Romano concludes. that there is a "significant difference between the traveling plume (visible and invisible) and the ambient air" and that "the tower-originated moisture has the capability of inducing carburetor ice far beyond k mile from the reactor."EI Mr. Romano concludes without foundation or explanation that meteorological studies relied upon by Applicant' are not applicable.E!
Again, without providing any support, Mr. Romano asserts that Limerick cooling towers plumes will contribute
" moisture sufficient to change localized ambient air from a non-carburetor-icing condition
,to c carburetor icing condition" and that this condition could exist as much as five to seven miles from-the
~
l l
l i
M/
Testimony at 2.
'12/
Id. at 3.
l-13/
Id. at 2-3 '(last paragraph on page 2 continuing onto page 3).
'M/
M. at 3 (first three full paragraphs).
reactor.E!
This testimony does not meet the Nanda test in that it is not presented by an expert witness supported by a rational explanation which reasonable men are more likely to accept than reject and thus, should be stricken.
In the last paragraph of Page 3 and first full three paragraphs of Page 4,
Mr. Romano purports to speak as an expert with regard to plume-affected airspace and to pilot training regarding the use of carburetor heat.
It is Applicant's position that Mr. Romano is not an expert who can speak to pilot training.
While, Mr. Romano theoretical-ly could testify as to what he was trained to do as a pilot, AWPP has not demonstrated that Mr. Romano has sufficient expertise by training or experience to testify as to the training of other pilots.
These paragraphs should be excluded.
With regard to the October 12, 1982 incident near Cape May, New Jersey, Mr. Romano has no basis for his assertion that the system engine failure was caused by carburetor icing, it being based entirely on speculative hearsay.EI This incident is not material to the contention before the Licensing Board.
Its admission would require cross-examination and rebuttal evidence as to the nature of 15/
Id. (fourth full paragraph).
M/
See Affidavit of Frank R.
Romano Relating to Summary Disposition of Contention V-4 (October 21, 1983).
Item A-3.
the causes of abrupt engine failure and would consume hearing time far in excess of any probative value that this evidence has.
This matter should be excluded.
Finally, the footnote as to the purported statement of "FAA's Ken Peppard" is not competent evidence regarding FAA's position and should be stricken.
Conclusion For the foregoing reasons, the testimony of Mr. Romano should be stricken.
Respectfully submitted, Conner & Wetterhahn, P.C.
Mark J. Wetterhahn Counsel for Philadelphia Elect 1~'.c Company November 21, 1983 i
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