ML20083R421

Motion to Strike Air & Water Pollution Patrol 840416 Testimony & Portion of NRC Testimony on Contention VI-1. Certificate of Svc Encl.Related Correspondence

ML20083R421
Person / Time
Site:	Limerick
Issue date:	04/20/1984
From:	Nichols N, Wetterhahn M CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8404240133
Download: ML20083R421 (9)

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' 3 RSATED CORRESPONDENCE jgre c UNITED STATES OF AMERICA

• NUCLEAR REGULATORY COMMISSION APR 23 P3:02 Before the Atomic Safety and Licensing ~ ~ ~ -7 Board tiMs. , Rein @i

.i a t.& SERy In the Matter of ) " RANCH

)

Philadelphia Electric Company ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

APPLICANT'S MOTION TO STRIKE AWPP'S AND A PORTION OF THE NRC STAFF'S TESTIMONY ON CONTENTION VI-l On April 16, 1984, Mr. Frank Romano filed his testimony on behalf of the Air and Water Pollution Patrol ("AWPP") on Contention VI-1.1 In accordance with the Atomic Safety and Licensing Board's " Order Confirming Miscellaneous Oral Record Rulings" (March 15, 1984),- Applicant hereby moves that this document be stricken on the grounds.that it is not competent, material, or relevant evidence, 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 herein and that he has otherwise failed to comply with the Board's requirements regarding submission of testimony. As discussed below, Applicant ' moves that one portion of the Staff's testimony which is beyond the scope of the contention be stricken as well.

-1/ Testimony of - Air ' and Water Polution Patrol -(Romano).

Concerning Contention VI-l (Infractions Related to- -

Welding) (" Testimony")'.

8404240133 840420 PDR ADOCK 05000352 0 PDR

No Qualifications to Give Opinion Evidence 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 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 trial 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 has failed to even include the professional

, qualifications of Mr. Romano, let alone make the requisite i

4 showing regarding those qualifications to allow him to present testimony before this Board. Mr. Romano had, however, previously filed his professional qualifications i

-2/ Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453, 475 (1982).

3/ Id.

i +

1 before this Board with respect to another issue. See ff.

Tr. 6725. Those qualifications state only that Mr. Romano has received unspecified " Bachelor and Master degrees in Science at Penn State," the pursuit of which " included courses in both chemistry and physics." He does not list or describe the content of these courses. Mr. Romano also 4

states that he has "over twenty-five years experience in 3

scientific studies and laboratory work since leaving Penn State --

with experience in water analysis and various aerial studies. Finally, he stated that he has been

" Director of Ambler Laboratories for over 25 years doing science analyses in chemistry and development of tests i

involving atmosphere pressure, elevation above sea level, as it relates to sample volumes in precise work." These qualifications clearly do not indicate any expertise regarding welding or welding quality assurance and therefore his testimony should be struck in its entirety.

AWPP also stated that Dr. Gudmond Iverson, Professor of Statistics, Swathmore College, will be~"a. witness for AWPP as it related to the auditing methods used by the Applicant and audits performed as their scientific ability as it related to Quality - Assurance."b Dr. Iverson . has - filed neither testimony nor professional qualifications. - . Nor -is

)

Dr.-Iverson attempting to-sponsor the testimony filed by Mr. .

4/ . Testimony at J.

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I Romano. Finally, no indication is given that Dr. Iverson is l qualified to give testimony on the subject for which he is being proffered. Having failed to submit the testimony required under 10 C.F.R. S2.743(b) and the Board's requirements regarding submission of testimony, Dr. Iverson should not be permitted to testify in this proceeding.

AWPP also apparently attempts to introduce testimony relating to its assertion that welders at Limerick have been fraudulently qualified.b The Board rejected this issue for lack of basis and specificity in its " Memorandum and Order Confirming Rulings Made at Prehearing Conference" (October 28, 1983). The Board at that time requested that Applicant and Staff file reports supplying information as to how they ensure that welding and welder qualifications meet the design criteria and welding codes and how it is assured that non-qualified welders are not qualified by fraud. . Applicant and Staff complied with this order on January 6, 1984 and January 23, 1984, respectively. Nothing in either of these documents constitutes good cause for the filing of this matter.

The Staff also included 'in the final paragraph (page

23) of its submission testimony relating to welder qualifications and an attachment indicating the results_of

'an - NRC inspection. into this subject. For the reasons i

S_/ Testimony _at I.

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6 detailed above, this testimony and the described attachment should be struck as well.

Finally, AWPP attempts to add a number of alleged to the list of specifications set

" welding infractions" forth for hearing.b These additional listings should be denied. In its October 28, 1983 Order, the Board directed AWPP to file a list of the specifications it relied upon in support of its case by a given date, which was subsequently set as March 6, 1984. It stated that absent a substantial showing of good cause, AWPP's case would be limited to the instances set forth in the required listing. AWPP states in its testimony that its substantial good cause "is the enabling of a more complete record for the safety of the public . " 8_/ No reason is advanced as to why these specifications could not have been filed by March 6, 1984 as required by the Board. Discovery had been open on this contention since it was admitted to this proceeding on October 28, 1983. There is no good reason why these 6/ Testimony at E, F and G.

7/ See " Memorandum and Order Confirming Rulings Made at

~

20, 1984) (slip op. at 3);

Hearing" (January and Order Denying AWPP's Motions for

" Memorandum Extension of Discovery Time and Appointment of Private Detective" (February 28, 1984) (slip op, at 2); and

" Memorandum and Order Ruling on Applicant's Motion to Strike Specific Instances Advanced by AWPP in Support of Contention VI-1" (April 2, 1984) (slip op. at 1-2).

8) Testimony at E.

2.

4 additional matters could not have been included in the required March 6, 1984 filing. The inspection reports AWPP relies upon were made available at the outset of the discovery period. Consequently, these additional matters should not be admitted in support of Contention VI-1.

i For the reasons set forth above, the testimony of AWPP should be struck in its entirety; the testimony of the Staff should be struck as it relates to welder qualification; and Dr. Iverson should not be permitted to testify in this proceeding.

Respectfully submitted, 4

CONNER & WETTERHAHN, P.C.

hed.1. M d l Mad Mark J. Wetterhahn Nils N. Nichols Counsel for the Applicant April 20, 1984 i

I

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, e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

Philadelphia Electric Ccmpany ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies'of " Applicant's Motion to Strike AWPP's and a Portion of the NRC Staff's Testimony on Contention VI-1" dated April 20, 1984 in the captioned matter have been served upon the following by deposit in the United States mail this 20th day of April, 1984:

Lawrence Brenner, Esq. (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 Dr. Richard F. Cole Office of the Secretary Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555

• Ann P. Hodgdon, Esq.

Counsel for NRC Staff Office

• Dr. Peter A. Morris of the Executive Atomic Safety and Legal Director Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

• Hand Delivery on April 23, 1984

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1 Atomic Safety and Licensing Steven P. Hershey, Esq.  !

l Board Panel Community Legal U.S. Nuclear Regulatory Services,:Inc.

Commission Law Center West North i Washington, D.C. 20555 5219 Chestnut Street Philadelphia, PA 19139 Philadelphia Electric Company ATTN: Edward G. Bauer, Jr. Argus Love, Esq..

Vice President & 107 East Main Street General Counsel Norristown, PA 19401

2301 Market Street Philadelphia, PA 19101 Mr. Joseph H. White, III 15 Ardmore Avenue 4

• • Mr. Frank R. Romano Ardmore, PA 19003

. 61 Forest Avenue I

Ambler, Pennsylvania 19002- Robert J..Sugarman, Esq.

i Sugarman, Denworth &-

l Mr. Robert L. Anthony Hellegers

. Friends of the Earth of 16th Floor, Center Plaza the Delaware Valley 101 North Broad Street j 106 Vernon Lane, Box 186 Philadelphia, PA 19107 1

Moylan, Pennsylvania 19065

~ Director, Pennsylvania

Mr. Marvin I. Lewis Emergency Management Agency j 6504 Bradford Terrace Basement, Transportation i Philadelphia, PA 19149 and Safety Building

{ Harrisburg, PA 17120-

Phyllis Zitzer, Esq.

Limerick Ecology Action Martha W. Bush,_Esq.

P.O. Box 761 Kathryn S. Lewis,.Esq.

y 762 Queen Street City of Philadelphia Pottstown, PA 19464 Municipal Services Bldg.

j 15th and JFK Blvd.

! Charles W. Elliott, Esq. Philadelphia, PA 19107 l Brose and Postwistilo

! 1101 Building Spence W. Perry, Esq.-

lith & Northampton Streets Associate General Counsel

, Easton, PA 18042 Federal Emergency j Management Agency Zori G. Ferkin, Esq. 500 C Street, S.W., Rm. 840

[ Assistant Counsel Washington, DC 20472 j Commonwealth of Pennsylvania i Governor's Energy Council 1625 Thomas Gerusky, Director N. Front Street Harrisburg, PA Bureau of Radiation i 17102 Protection l Department of Environmental i Resources

! Sth Floor, Fulton Bank Bldg.

l Third and Locust Streets l Harrisburg, PA 17120 i

• • - Federal Express-l I

)

l I

O Jay M. Gutierrez, Esq.

U.S. Nuclear Regulatory Commission Region I 631 Park Avenue King of Prussia, PA 19406 James Wiggins Senior Resident Inspector U.S. Nuclear Regulatory Commission P.O. Box 47 Sanatoga, PA 19464 Timothy R.S. Campbell Director Department of Emergency Services 14 East Biddle Street West Chester, PA 19380 1

1 Nils N. Nichols l

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