ML20082E447
| ML20082E447 | |
| 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 8311280201 | |
| Download: ML20082E447 (14) | |
Text
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00CKETED USNRC 13 50V 23 h10i41 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION CFF'C' CE SEC"'IW' r,CCn'.lE b.Sb i i i-
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Before the Atomic Safety and Licensing Board In the Matter of
)
)
I Philadelphia Electric Company
)
Docket Nos. 50-352
)
50-353 (Limerick Generating Station,
)
Units 1 and 2)
)
APPLICANT'S MOTION TO STRIKE TESTIMONY OF ROBERT L. ANTHONY AND BEVIER HASBROUCK ON CONTENTIONS V-3a & V-3b Introduction On November _ 14, 1983, Messrs. Robert L.
Anthony and Bevier Hasbrouck filed testimony on Contentions V-3a and V-3b.1 Pursuant to the Atomic Safety and Li?.3nsing Board's
" Memorandum-and. Order Confirming Prehearing Conference Rulings on Status of Certain Parties and Schedule Regarding Certain Contentions" (October 20, 1983), Applicant moves that this tertimony be stricken on the grounds that it does not represent competent evidence and that no foundation of expertise is shown for the opinions contained therein.
l 1/
Testimony of Robert L. Anthony for Himself and Friends of the Earth on Contentions V 3a and V 3b, November 14, 1983; Testimony of Bevier Hasbrouck on Contentions V 3a and V 3b for Anthony / FOE (November' 14, 1983).
8311280201 831121
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PDR ADOCK 05000352 O
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Legal Analysis The Commission's Rules of Practice do not expressly state the. standard for judging whether a prospective witness 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 1
rule allows a witness qualified as an expert by " knowledge, skill, experience, training, or education" to testify "[il 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 l
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).
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 l
Motor Co.,
509 F.2d 213, 219 (7th Cir.
1975),
cited in l
Portland General Electric Co. (Pebble Springs Nuclear Plant,
-2/'
Duke Power Co.
(William B.
McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453, 475 (1982).
3/
Id.
l
2 Units 1 & 2), " Order Jenying Intervenors' Motion to Strike Certain Testimony of Gordon T. C. Taylor," November 4, 1976.
Mr. Anthony's Testimony Despite the fact that Mr.
Anthony states that his testimony is not submitted as the testimony of an expert witness,A!
the testimony that he would sponsor is indeed that of an expert.
He has not demonstrated that he has the necessary expertise to sponsor this testimony.
In his testimony, Mr.
Anthony purports to provide analyses of
" typical" or " representative" pipeline accidents and the consequences of such accidents in the vicinity of the Limerick facility.b!
By his own admission, he is a retired f
Art Therapist with ten years' experience in citizen environmental advocacy.6_/
He is neither a petroleum, civil i.
or mechanical engineer nor a statistician, competent to establish what a typical pipeline accident is.
Nor is he competent to provide testimony as to the applicability of the accidents he has listed to a determination of the possibility or severity of an accident of the ARCO or 4/
Id.
at 1.
His characterization of himself as a
Moordinator" does not enhance his ability to sponsor the evidence.
Mr. - Anthony has not only gathered material; he purports to analyze and characterize its meaning and significance.
Such tasks require expertise in the underlying discipline or disciplines.
5/
Id. at 2-3.
6/
Id. at 1.
-. _ - _ ~... _ - -,
Columbia Gas pipelines and their effect on the Limerick Generating Station.
In his testimony, Mr. Anthony states that there are ten transmission pipelines within a five' mile radius of the Limerick nuclear reactors.1!
He further states that "the whole ' nexus ~of ten lines within five miles of the reactors constitute the potential for damage to the plant in case of rupture and explosion and fire which, we believe, should have been a decisive factor in veto of this site for a nuclear plant."8,/
No basis is provided for these assertions
- nor does he provide any specific analysis of any pipeline other than the ARCO and Columbia Gas pipelines.
This testimony is not probative of any matter contained in Contentions. V-3a and V-3b and thus, should be stricken as irrelevant and immaterial.
Mr.
Anthony asserts that the location of the ARCO pipeline is thought to be from 1400 to 1600 feet away from the Station.E!
Mr. Anthony has not shown that he is an expert in surveying nor otherwise qualified to determine the pipeline location.
This testimony should also be stricken.
7/
Id. at 1.
Mr. Anthony does not assert that the failure
'of these pipelines could cause a greater effect on the Limerick Station. than either the ARCO or Columbia pipelines.
8/
Id.
1 9/
Id.
Under the subtitle "PECo's Responsibility,"
Mr.
Anthony asserts that. the Applicant should have contacted the ten pipeline operators he alleges to be in the vicinity of the Limerick facility and that failure to do so is evidence of
" careless disregard of public safety." El This assertion is argumentative and without probative value and should be stricken.
Mr. Anthony further alleges that the answers provided by Applicant to certain discovery requests are false and thus, that Applicant's credibility has been undermined.EI The credibility of Applicant,
- however, is not a proper subject for the direct testiltony of Mr. Anthony.
At most, it is a matter which can be raised on cross-examination of Applicant's panel.E!
Under the rubric "Intervenor's Research," Mr. Anthony states that FOE has researched the " risks to the plant from plant."EI pipeline accidents which could damage the He then lists what he calls typical examples of pipeline accidents from the records of the Materials Transport
- Bureau, U.S.
Department of Transportation and of the 10/
Id.
11/
Id. at 1-2.
12/
See generally Fed.
R.
Evid.
608 (b) ;
3 Weinstein, Evidence S608[5]
(1982); McCormick, Evidence 542 (2d ed. 1972).
13/
Id. at 2.
National Transportation Safety Board.EI Mr. Anthony has not shown why the examples listed are typical.
Neither has he demonstrated that he is qualified to evaluate pipeline accidents and determine which ones are " typical."
- Moreover, he has not shown why these examples relate to the pipelines in the vicinity of the Limerick facility.
- Thus, this testimony under the headings " Records from U.S.
Department of Transportation" and " Conclusions from Pipeline Accident Records" should be stricken as irrelevant and immaterial and not supported by the testimony of an expert.E!
Under the subtitle " Conclusions from Table 2,"
Mr.
Anthony asserts (1) that he has listed six " representative" natural-gas pipeline breaks,El (2) that the Licensing Board should require records for all the pipelines within a 5-mile radius of the facility, (3) that the Licensing Board should require an evaluation of the worst-case accident for the pipelines closest to the plant, (4) that PECO's record as a gas pipeline operator should be investigated, and (5) that the Board should be provided with the " details of the fatal pipeline break of 1/27/71 in West Conshohocken."
This testimony should be stricken as irrelevant and immaterial.
l I
14/
Id.
15/
Id. at 2-3.
16/
As noted earlier, Mr.
Anthony is not competent to establish what a " representative" natural gas pipeline break is.
l l
Mr. Anthony's testimony does not establish his direct case on the admitted contentions.
Rather, Mr. Anthony's alle-gations, contained in a document labelled " testimony," are little more than a request that the Board conduct an inves-tigation for Mr. Anthony.
In addition to being an improper request that the Board conduct an investigation, these alle-gations are irrelevant, immaterial, and without foundation.
This section should be stricken.
Mr. Hasbrouck's Testimony Accompanying Mr. Anthony's testimony of November 14, 1983, was the testimony of Mr. Bevier Hasbrouck purporting to calculate overpressure on the reactor building from a rupture in the ARCO pipeline which sprayed a patch of rough brambles, tall grass and 40 foot trees for a radius of 185 feet.NI Mr.
Hasbrouck does not have the necessary expertise to support this testimony.EI Despite the fact that Mr. Hasbrouck states that he received a B.A.
degree in physics in 1947 and subsequently took graduate courses in physics, this educational background alone, completed some I
30 years ago, does not make Mr.
Hasbrouck competent to E/
Hasbrouck Testimony at 1.
l 18/
It is not clear whether Mr. Hasbrouck is seeking to incorporate a document entitled " Scenario for #1010 Pipeline Rupture and Gas Release for Anthony and FOE (V-3 a, b. ) " appended to the response to the motion for summary disposition in his testimony.
Even were it to be so considered, as discussed in the
- text, Mr.
l Hasbrouck has not shown the expertise to sponsor it.
t t
-g.
pipeline break and its determine the characteristics of a potential consequences.
All of Mr. Hasbrouck's experience has been in experimental nuclear physics, computers, and accounting.
His accounting experience with ARCO is not relevant to his purported expertise to determine the characteristics and potential consequences of a pipeline break.
Based on the information provided, it is clear that Mr. Hasbrouck may not testify as an expert on Contentions V-3a and V-3b.EI In his testimony, Mr. Hasbrouck hypothesizes a number of events necessary to cause an explosion of the type he predicts.N/
By his own admission, Mr. Hasbrouck states that these are "merely assumptions" and have no evidentiary weight. 2_1,/
Mr. Hasbrouck seeks to make pronouncements as to
" convection currents," and breezes, which are in actuality the meteorological aspects of the analysis for which he has 19/
In its Memorandum and Order Denying Applicant's Motions for Summary Disposition of Contentions V-3a and V-3b and V-4 (November 8, 1983)
(slip op. at 10, n.2), the Licensing Board noted that FOE has only summarily presented Mr. Hasbrouk's qualifications and that FOE "shall provide a full written statement of professional qualifications for its witnesses at the time its written direct testimony is filed."
FOE has not complied with this directive, filing only the briefest statement.
For this
- reason, the testimony of Mr.
Hasbrouck should be stricken.
2_0,/
Hasbrouck Testimony at 1-2.
0 21/
Id. at 2.
l l
expertise.2_2_/
This material should be stricken.
shown no Neither has he shown the expertise necessary to testify as to the intensity and effects of detonation.2_3/
The analysis presented on page 4 of Mr. Hasbrouck's testimony purports to relate to the effects of the detonation of the Columbia Gas pipeline on the Station.
Neither contention granted to FOE extends to this matter.
Contention
'V-3a is specific to the ARCO pipeline.
Contention V-3b speaks only to deflagration and not detonation.EI Mr. Hasbrouck provides no scientific basis for his particular assumptions; this material is neither reliable nor probative and should be stricken.
Mr.
Hasbrouck clearly is not competent to analyze pipeline ruptures generally and to apply the consequences of any pipeline rupture to the Limerick facility in particular.
As such, his entire testimony should be stricken as unreli-able.
22/
Id.
l l
l 23/
Id. at 3.
I 24/
This observation is true for the entire document captioned " Scenario for #1010 Pipeline Rupture and Gas Release" with the possible exception of Item 19 which is conclusory, without foundation, and not supported by sufficient expertise.
This document should be excluded in its entirety.
Notes Added to Testime,ny On November 17, 1983, Applicant received a document entitled " Notes Added to the Testimony of Robert L. Anthony and Bevier Hasbrouck of 11/14/83 on Contentions V 3a and V 3b" which purports to add the contents of the National Transportation Safety Board accident reports identified in Exhibits A through E to the testimony.
These documents have still not been provided to the Board and parties.
- Thus, intervenor has failed to serve the testimony in accordance with the Board's Memorandum and Order.E For this reason, these exhibits should be stricken in their entirety.E Conclusion In sum, Applicant moves that the documents entitled
" Testimony of Robert L.
Anthony for Himself and Friends of the Earth on Contentions V 3a and V 3b,"
" Testimony of Bevier Hasbrouck-on Contentions V
3a V
3b for Anthony / FOE," and " Notes Added to the Testimony of Robert L.
1 Anthony and Bevier Hasbrouck of 11/14/83 on Contentions V 3a and V 3b" and all referenced documents be stricken as 25/
Philadelphia Electric Co.,
(Limerick Generating Station Units 1
and
- 2),
" Memorandum and Order Confirming
~
l Prehearing Conference Rulings on Status of Certain Parties and Schedule Reg,_' ding Certain Contentions,"
(October 20, 1983).
l 1
26/
FOE seeks to make all exhibits part of the testimony of Mr. Hasbrouck, but has not shown he has the expertise to sponsor such exhibits nor their relevance to his testimony.
irrelevant, immaterial, and not sponsored by a witness with sufficient expertise.
Respectfully Submitted, Conner & Wetterhahn, P.C.
Mark J. Wetterhahn Counsel for Philadelphia Electric Company November 21, 1983 l
l l
l l
t
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00LKETED USNRC 13 NW 23 N0:41 UNITED STATES OF AMERICA
. NUCLEAR REGULATORY COMMISSIONFFICE OF SECRtTAl 00CKETING & SERVirl.
BRANCH In the Matter of
)
-)
Philadelphia Electric Company
)
Docket Nos. 50-352
)
50-353 (Limerick Generating Station,
)
Units 1 and 2)
)
CERTIFICATE OF SER'/ ICE l
I hereby certify that copies of " Applicant's Motion to Strike Frank R.
Romano's Testimony on Contention V-4" and
" Applicant's Motion to Strike Testimony of Robert L. Anthony and Bevier Hasbrouck on Contentions V-3a & V-3b" both dated November 21, 1983, in the captioned matter, have been served upon the following by deposit in the United States mail this 21st day of November, 1983:
i
- Judge Lawrence Brenner (2)
Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Docketing and Service Section Judge Richard F. Cole Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission
(
U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555
- Ann P. Hodgdon, Esq.
Counsel for NRC Staff Judge Peter A. Morris Office of the Executive Atomic Safety and Licensing Legal Director Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission i
Commission Washington, D.C.
20555 l
Washington, D.C.
20555 Hand Delivery
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Atomic Safety and Licensing Steven P. Hershey, Esq.
Board Panel Community Legal U.S. Nuclear Regulatory Services, Inc.
Commission Law Center West North Washington, D.C.
20555 5219 Chestnut Street Philadelphia, PA -19139 Philadelphia Electric Company ATTN:
Edward G. Bauer, Jr.
Angus Love, Esq. 101 East Vice President &
Main Street Norristown, PA General-Counsel 19401 2301 Market Street Philadelphia, PA 19101 Mr. Joseph H. White, III l
15 Ardmore Avenue
- Mr. Frank R. Romano Ardmore, PA 19003 61 Forest Avenue Ambler, Pennsylvania 19002 Robert J. Sugarman, Esq.
Sugarman & Denworth Suite Mr. Robert L. Anthony 510 North American Building Friends of the Earth of 121 South Broad Street the Delaware Valley Philadelphia, PA 19107 106 Vernon Lane, Box'186 Moylan, Pennsylvania 19065 Director, Pennsylvania Emergency Management Agency Mr. Marvin I. Lewis Basement, Transportation 6504 Bradford Terrace and Safety Building Philadelphia, PA 19149 Harrisburg, PA 17120 Phyllis Zitzer, Esq.
Martha W.
Bush, Esq.
Limerick Ecology Action Kathryn S. Lewis, Esq.
P.O. Box 761 City of Philadelphia 762 Queen' Street Municipal Services Bldg..
Pottstown, PA 19464 15th'and JFK Blvd.
Philadelphia, PA 19107 Charles W. Elliott, Esq.
Brose and Postwistilo Spence W. Perry, Esq.
1101 Building lith &
Associate General Counsel Northampton Streets Federal Emergency Easton, PA 18042 Management Agency 500 C Street, S.W.,
Rm. 840 Thomas Y. Au, Esq.
Washington, DC 20472 Assistant Counsel Commonwealth of Pennsylvania Thomas Gerusky, Director DER Bureau of Radiation 505 Executive House Protection P.O. Box 2357 Department of Environmental Harrisburg, PA 17120 Resources Sth Floor, Fulton Bank Bldg.
Third and Locust Streets Harrisburg, PA 17120 Federal Express 4
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Jay M. Gutierrez, Esq.
U.S. Nuclear Regulatory Commission Region I 631 Park Avenue King of Prussia, PA 19406 Zori G. Ferkin Commonwealth of Pennsylvania Governor's Energy Council P.O. Box 8010 1625 N. Front Street Harrisburg, PA 17105
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b Mat $/ J. Wetterhahn i
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