ML20205N653
| ML20205N653 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 04/28/1986 |
| From: | Wright T ROREM, B., WRIGHT, T. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20205N657 | List: |
| References | |
| CON-#286-971 OL, NUDOCS 8605020229 | |
| Download: ML20205N653 (12) | |
Text
l MELATED CORRESPONDtM4 qh}
April 28, 1986 UNITED STATES OF AMERICA DOCHETED NUCLEAR REGULATORY COMMISSION USMRC Before the Atomic Safety and LiceN NY -1 N0:11 i
Board In the Matter of:
)
)
0Frfte ar :F oanny 0
COMMONWEALTH EDISON COMPANY
)
NO. 0e r c '50.456_:fi m' y
)
50-457 U
(Braidwood Nuclear Station,
)
Units 1 and 2)
)
INTERVENORS' MOTION TO STRIKE CERTAIN PORTIONS OF APPLICANT'S PREFILED TESTIMONY INTHODUCTION Intervenors Rorem, et al,,,
move to strike certain portions of Applicant's prefiled written testimony on the grounds that these portions fail to meet the requirements for admissibility of evidence in Commission proceedings and the analogous standards of the Federal Rules of Evidence.
Intervenors identify certain portions of the prefiled testimony filed by Applicant's witnesses which must be stricken on the grounds that the competence of the witnesses to testify to the matters stated has not been shown or that the facts set forth would not be admissible in evidence.
In many instances Applicant's witnesses lack any personal knowledge whatever of the material facts to which they testify, such testimony is therefore incompetent.
Additionally, certain portions of the testimony are replete with inadmissible hearsay and impermissibly express opinions on the ultimate facts.
8605020229 860428 DR ADOCK 05000456 PDR 1
()C;)'L>.D I
h * )
4
~
v As the Licensing Board stated in its April 21, 1986, Memorandum and Order (Ruling on Summary Disposition), Slip Op.,
pp. 5-6:
i a
ii With regard to statements of contested l
material fact, the witness must be competent as a fact witness, and we understand that, in general, to require persoinal knowledge.
As i
an administrative board, we can dispense with the personal knowledge requirement with less constraints than a judicial court, to, expedite and facilitate the adjudicatory process, but not to the exclusion of a fair opportunity for_the opponent of the proffered evidence to rebut i t.
Where material facts appear legitimately in dispute and a witness with personal knowledge is readily available, that witness should be offered.
Similarly, when a document is relied upon that is readily available, that too should be presented.
Nor do we agree with Applicant's further implication (id. at 5-7) that the leeway given an expert witness (in both court litigation and administrative proceedings) to base his testimony upon hearsay, if of the type reasonably relied upon by experts in the field, permits him to establish the material facts in dispute although he is lacking in personal knowledge.
His opinions may be arrived at upon information that may not be admissible in evidence, and they will be accepted as expert opinions if reasonably qualified, but those expert opinions cannot substitute for, or establish, the material facts about which the expert witness may lack competence as a fact witness, i.e.,
have personal knowledge.
Thus, as to factual matters which are legitimately in dispute Applicant and Staff are the burden of establishing such facts through a witness with personal knowledge.
Id.,
Slip Op.
at p. 7.
Profiled testimony which fails to meet this standard must be stricken.
1 2
Testimony of Randall Kurtz on Contention 2.C.
Intervenors objejet to portions of the above-mentioned written testimony and move to strike the following portions:
A.9 (first sentence and last three sentences)
Mr. Kurtz's recital of what Mr. Puckett has " repeatedly" said is inadmissible hearsay.
The last three sentences of Mr.
Kurtz's testimony are clearly speculative, conclusary and are made without the requisite personal knowledge.
A.12 (first two sentences under heading:
" Response:" p. 15)
Mr. Kurtz's testimony regarding what Mr. Puckett did or did not consider is both speculative and hearsay.
(the words "small", is describing number of welds in the 7th and 8 th sentences under heading " Response:", pgs. 16, 17)
Mr. Kurtz's characterization of the amount of discrepant welds replaced is an improperly expressed opinion as to an ultimate fact.
It is the Board that must ultimately characterize whether the amount of discrepant work was large or small.
(1st and 2nd Sentence, 2nd paragraph under " Response " p.17)
Mr. Kurtz's testimony regarding what Mr. Puckett said is inadmissible hearsay.
l l
(1st sentence, 2nd full paragraph under " Response:", p. 19) l l
Same Argument as above l
3 L
m (1st sentence 1st paragraph under " Allegation", p. 20)
Same Argument as above (1st sentence 2nd paragraph under " Response:" p. 20)
Same Argument as above (2nd. sentence 2nd paragraph under " Response:" p. 23)
Mr. Kurtz's attempt to guess what was on Mr. Puckett's mind is inadmissible speculation.
(1st sentence, last paragraph under " Response:", p. 23)
M r. Kurtz is without personal knowledge as to what techniques Mr. Puckett utilized.
(1st sentence, 2nd full paragraph under " Response:", p. 24 )
Mr. Kurtz is without personal knowledge as to what Mr.
Puckett's understanding is.
(1st sentence, 2nd paragraph under " Allegation:" p. 26)
Mr. Kurtz is without personal knowledge as to what M r.
Puckett believes.
It is also inadmissible hearsay.
(2nd and 3rd sentences, 2nd paragraph under "Desponse:" p.
26)
The full response to the " Allegation" should also be stricken because it becomes irrelevant and unintelligibic.
Notwithstanding, the 2nd and 3rd sentences should be stricken in that they are impermissible hearsay.
A.13 (last sentence, 4th paragraph under " Response: p. 27) 4
Mr. Kurtz's attempted characterization of the conditions Mr.
Puckett identified are an impermissible conclusion to the ultimate fact, which the Board must find.
(First two sentences, 2nd paragraph under " Response:" p. 28)
Mr. Kurtz is without personal knowledge as to what Mr.
i Puckett understands and, M r. Kurtz's recital of what Mr. Puckett stated is inadmissible hearsay.
A.14 (1st sentence, 2nd full paragraph under " Allegation:" p. 29)
Mr. Furtz's recital of what Mr. Puckett stated is inadmissible hearsay.
(last sentence, 2nd paragraph under " Allegation:" p. 30)
Same Argument as above.
(1st sentence, 3rd paragraph under " Response:" p. 30) l l
Same Argument as above.
(1st sentence, 1st paragraph under " Allegation: p. 31)
Same Argument as above.
(1st sentence, 2nd full paragraph under " Allegations" p. 32)
Same Argument as above.
(1st sentence, 2nd full paragraph, p. 33)
Same Argument as above.
(last sentence, 1st full paragraph, p. 36)
Same Argument as above i
5 1
i l
TESTIMONY OF ANTHONY T. SIMILE ON ROREM SUBCONTENTION 2.C.
Intervenors object to the following portions of the above-mentioned written testimony and move to strike the following portions; A.10 (2nd paragraph, 2nd sentence to end)
Mr. Smile's recital of what he was told by some undisclosed person is inadmissible hearsay.
A.14 (1st paragraph)
Same Argument as A.10.
A.16 (1 sentence, 2nd paragraph, p.
13)
Same Argument as A.10 0.17 A.17 (entirety)
Both the ouestion and answer should be stricken in that the question is improper.
The question incorporates inadmissible hearsay.
No competent foundation.
0.18 A.18 (entirety)
Same Argument as O&A 17, furthermore the 2nd sentence is inadmissible double hearsay.
Q.19 A.19 (entirety) 1 6
V i
Same Argument as O&A 17.
Furthermore, the last paragraph is inadmissible hearsay and an impermissible opinion as to one of the ultimate issues to be decided by the Board.
Q.20 A.20 (entirety)
Same Argument as Q&A 17.
Furthermore, the question and
^
answer should be stricken in that the question calls for impermissible speculation and opinion.
l Q.22 l
A.22 (entirety)
I Question is in improper compounded form.
l I
o.23 A.23 (entirety)
Same as Argument to O&A 22 0.24 A.24 (entirety)
Same as Argument to O&A 22.
Furthermore, the last paragraph on p. 20 and the 1st paragraph on p. 21 is in speculation and inadmissible hearsay.
Testimony Of J.R. Vannier On Contention 2.C.
Intervenors object to the testimony of Mr. Vannier in its entirety as irrelevant and immaterial.
Moreover, there is no l
l competent showing that the coupons, are in fact, those utilized by Mr. Puckett in performing the Level III welding certification practical examination.
t 7
e
Testimony of Thomas Maiman on Contention 2.C.
Intervenors object to the following portions of the above-mentioned written testimony and move to strike the following portions; O.7 A.7 (entirety)
Question and Answer 57 must be stricken in its entirety in that the form of the question is improper.
The question calls for, and the answer gives inadmissible hearsay.
A.8,(3rd sentence, 1st paragraph:
1st sentence, 2nd paragraph, the entire last paragraph)
Mr. Maiman's recital of the LKC managers and Mr.
Fitzpatrick's conversations in inadmissible hearsay.
0.9 A.9 (entirety)
Question and answer 49 must be stricken in its entirety in that the form is improper, it is a compound question.
- Moreover, the second and third sentence is impermissible hearsay.
O.10 A.10 (entirety)
Question and answer #10 must be stricken in its entirety in that there is no foundation for the question.
Nor is there any timeframe associated with the question, it is also vague.
Moreover, the first paragraph is speculative, and conclusory.
Throughout the entire answer, it is replete with unsubstantiated speculation and impermissible conclusions.
8
A.11 (last sentence, 1st paragraph:
2nd sentence, 2nd paragraph)
What Bestco believed is pure speculation and/or hearsay.
Also whether there was a conflict and whether it was growing is impermissible opinion and speculation by Mr. Maiman.
A.12 (last portion of the last sentnece)
Mr. Maiman's attempts to introduce double hearsay (what a OC supervisor heard) must be stricken.
A.13 (1st Sentence)
By qualifying his testimony, Mr. Maiman shows he does not have personal knowledge it is simply inadmissible speculation.
l A.14 (3rd and 4th sentences, 1st paragraph, 1st sentence, last paragraphs)
Mr. Maimann lacks personal knowledge as to "all concerns i
brought to Quality First."
IIis testimony is inadmissibic speculation.
Also, whether " CECO keeps abreast of quality problems or concerns at Draidwood', is certainly an ultimate fact to be determined by the Poard.
A.17 (second sentence)
This is clearly inadmissible hearsay, especially so where the author of the statement is not identified.
l Testimony of Larry Seese on Contention 2.C.
Intervenors object to the following portions of the above-l mentioned written testimony and move to strike the following portions; l
l 9
l 0.7 (entirety)
There is no foundation or time frame for the question.
0.8 A.8 (entirety)
Same as Argument to O&A7.
Furthermore, Mr. Seese does not have the personal knowledge required.
l 0.9 A.9 (entirety) f l
Compound question l
l 0.10 t
A.10 (entirety)
Compound question 0.12 A.12 (entirety)
Same as Argument to O&A 10 0.17 l
A.17 (entirety)
Question is improper and compound 0.18 A.18 (entirety)
Same Argument as O&A 17 0.19 A.19 (entirety)
Same Argument as O&A 17 A.20 (2nd and 4th sentence)
Inadmissible hearsay 10
0.21 A.21 (entirety)
Same Argument as O&A 17 0.24 A.24 (entirety)
There is no foundation laid for this O and A.
It is inadmissible due to form and lack of foundation.
O.26 A.26 (entirety)
Same Argument as O&A 17.
O.28 A.28 (entirety)
Same Argument as O&A 17:
moreover, Mr. Seese has no personal knowledge - he conducted only a limited review.
O.30 A.30 (entirety)
Same Argument as O&A 17 A.34 Mr. Seese concedes he ic not responsible for terminations.
He is simply not competent to testify whether such terminations were retaliatory.
n 11
I conclusion For the foregoing reasons, Applicant's written profiled testimony should be stricken in the particular respects herein agreed.
Respectfully submitted, l
l Timn*hy W.
Wright III '
One of the Attorneys for Intervenors Rorem, et al.
l Douglass W.
Cassel, Jr.
Robert Guild 109 North Dearborn l
Suite 1300 Chicago, IL 60602 (312) 641-5570 i
I i
I l
l l
I l
l l
12 l
r k