ML20093L176

Motion to Strike Testimony of R Kessel on Behalf of State of Ny.Witness Incompetent.Related Correspondence

ML20093L176
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	07/27/1984
From:	Monaghan J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20093L123	List: ML20093L120 ML20093L139 ML20093L162 ML20093L176 ML20093L193
References
OL-4, NUDOCS 8407310319
Download: ML20093L176 (6)

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" nt!1,TED Ccrr2 FCHDE.hCEILCO, July 27, 1984 UNITED STATES OF AMERICA

-NUCLEAR REGULATORY COMMISSION CDhETEn UH!ic Before the Atomic Safety and Licensing Board

'84 &T. 30 p3:94 In the Matter of )

) n. r LONG ISLAND LIGHTING COMPANY ) Docket No. SD-322_-OLf41

) (Low Power)" M (Shoreham Nuclear Power Station, )

Unit 1) )

LILCO'S MOTION TO STRIKE DIRECT TESTIMONY OF RICHARD KESSEL ON BEHALF OF THE STATE OF NEW YORK Pursuant to 10 CFR S 2.743(c), the Long Island Lighting Com-

.pany ("LILCO") moves to strike the " Direct Testimony of Richard Kessel on Behalf of the State of New York" (Kessel Testimony) on the following grounds:

1. Paragraph 1.1/ (a)In this paragraph, Kessel alleges that it is not in the public interest to permit contamination of the nuclear facility before uncertainty surrounding its future opera-tion had been resolved. (Kessel Testimony at 4-5). The question of uncertainty concerning the ultimate licensing of Shoreham is not an issue in these proceedings. The Commission has held on at least two occasions that any uncertainty attendant to whether LILCO may receive a full power license for Shoreham does not pre-clude low power testing. Long Island Lighting Company (Shoreham 1/ The paragraph designations in this motion refer to the num-bered paragraphs forming the "several bases for (Kessel's] oppcsi-tion to LILCO's requested exemption." Kessel Testimony at 4. The number paragraphs begin on page 4 of Kessel's pre-filed testimony.

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. Nuclear Power Station, Unit 1), CLI-84-9, 19 : NRC ~ (1984); Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1),

CLI-83-17, 17 NRC.1032 (1983_). As a consequence, Kessel's testi-

' mony,~which addresses the uncertainty that a full power license will be granted and the possible cost of decommissioning Shoreham is. immaterial and irrelevant to the "public interest" issue.

(b)- Additionally and alternatively, Kessel is not competent to testify about the costs of decommissioning Shoreham or the sal-vage value.of fuel or equipment in that he has no background or experience in the nuclear field, engineering or finances. He pur-ports to have no personal knowledge of these facts and is not com-petent "by knowledge, skill, experience, training or education" to testify as an expert. Fed R. Evid. 702. Prior to becoming head of the New York Consumer Protection Board, Kessel had received degrees in political science, had taught " consumer economics" and had spent his career as a consumer advocate. According to his biographical sketch, attached to his testimony, he has spent much of his career organizing surveys about the prices of candy, flow-ers and turkeys. Nothing in his testimony indicates any expertise in the issues before this Board.

2. Paragraphs 2 and 3. (a) Kessel is not competent to offer the testimony contained in these paragraphs. In 1 2, Kessel

, asserts that "LILCO's proposal to accelerate low power testing will probably require additional funds which the Company will t

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obtain b'y reducing non-nuclear related costs, thereb'y impairing its already diminished quality of service." In 1 3 Kessel

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asserts "New. York does not require Shoreham's capacity now-nor for many years in the future." Neither Kessel's biographical sketch nor the summary of his professional qualifications contained in this testimony at pages 1-2 provides any basis for.Kessel's offer-ing opinion or factual testimony on the effect of LILCO's nuclear-related costs on LILCO's non-nuclear operations nor en the need of New York State for power in the future. As stated above, Kessel has no background in the nuclear industry, the utility industry, engineering or the provision of electric service.

(b) Moreover, Kessel's testimony provides no foundation for any opinion by him the.t low power testing at Shoreham will affect in any way the Company's cervice to its customers.

(c) Finally, these paragraphs contain and rely upon inadmis-sible hearsay. Kessel has no personal knowledge of or expertise concerning the quality of LILCO's service as affected by Shoreham or New York State's energy needs. Nor does the Consumer Protec-tion Board have any responsibility for forecasting energy demands, 4

electrical load or the like.2/ To the extent Kessel is relying on reports or opinions of others, his lack of expertise in this area makes it impossible to cross-examine him.

t 2/ For example, conspicuously absent from Kessel's testimony is any mention of the New York State Energy Master Plan.

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.g t 1 x 3_ ~g3* . Paragraphs'4 and 6. (a) tin 11 4 and 6 of Kessel's tes-( \1

'timony,' he ' testifies that LILCO has mismanaged' the Shoreham proj-

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wcp"eltd,.therefore, it woul'd not be in the public interest to q

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, grant LILCO an exemption "particularly when a prudent utility

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, woui4lhave replaced.the defective TDI diesels'with safety grade equipment many years ago." Kessel Testimony at 8. The prudence 1

or imprudence of LILCO's management of the.Shoreham project is not

;-c at issue here. The Commission indicated in its Order of May 16, 1984, that good faith efforts to comply with GDC 17 would be rele-vant to these proceedings. The Commission did not require L.uCO to demonstrate that it had done everything right in attempting to comply with CDC 17. Such a demonstration of good faith is not dependent.upon a hindsight evaluation by an incompetent witness that more could have been done to avoid the problems ultimately discoveredwiththeTDIdifselgenerators. The testimony proferred by Kesse1\ is not relevant to the issue of good faith or any other aspect of public interest which it rurports to address.

(b) Additionally and alternatively, nothing in Kessel's tes-timony or professional qualifications indicates any engineering, ,

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tr, nuclear, financial or business background which would qualify him to express an op[nionLpn the prudency of management decisions by LILCO concerning the TDI. diesel generators or other matters per-tainingto;3hoheha 's' construction or operation. In particular, i .

4* he has no experien'ce).t t raining, education or skill in the o ,

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4 operation, maintenance, design, manufacture or procurement of die-sel generators that would permit him to draw any conclusions about the significance or forseeability of problems with the TDI diesel generators.

4. Paragraph 5. (a) In this paragraph, Kessel asserts "it is inconsistent with the public interest to allow a financially we'akened and nearly bankrupt company to operate a nuclear facil- ,

i ity." Kessel Testimony at 8. This testimony is nothing more than a bald attempt to inject the issue of LILCO's financial qualifica-tions into_the low power licensing proceeding. This Board has ruled unequivocally that general, detailed financial information is not relevant to this inquiry (Tr. 712). The financial or economic hardships referred to under the category of " equities" in the Com-mission's May 16 Order (CLI-84-8, fn.3), is limited to those which the Board is charged with looking at in this proceeding. Those matters include financial or economic impacts of the earlier commencement of activities under a low-power license, compared or con-trasted with the later time that low-power operations could commence as a result of the final decisions of other Boards.

Order Regarding Discovery Rulings, June 27, 1984, at 2-3.

(b) Additionally and alternatively, Kessel has no nuclear, financial or business expertise that would qualify him to render expert or factual testimony concerning the funds necessary to operate a nuclear plant at low power levels or the impact of LILCO's financial condition on its consumers and employees.

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.-/Q' For ' theJ Ueasons '5tated above, LILCO recpectfully requests '

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f that this-Board-strike the Testimony.of Richard Kessel.3/ .

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- Respectfully submitted, A -r

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LONG ISLAND LIGHTING COMPANY

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s 3_/ In-the/i nterest of efficiency, this motion is submitted in

. advance-of,Raesel's appearance on the' stand and is based solely on 4 thfiniatters ippe' arcing in Kessel's pre-filed testimony. If the Board,'permitCKessel to testify, LILCO may raise additional jQ grounds- for stiriking the testimony following voir dire and

f. cross-examinati..o.n of the witness. '

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