ML20205N671

Motion to Strike Portions of Applicants Prefiled Testimony Submitted by R Mendez,Jh Neisler & Ws Little Re B Little Rorem,Et Al Subcontention 2.Certificate of Svc Encl.Related Correspondence

ML20205N671
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: ML20205N653 ML20205N671
References
OL, NUDOCS 8605020234
Download: ML20205N671 (9)

Text

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'uttAlf_D CORNE.SPONCC*il April' 28, 1986 t

UNITED STATES OF AMERICA 0%KETEC NUCLEAR REGULATORY COMMISFION -SNRC ,

t Before the Atogic Safety and Licpasig egra In the Matter of:  ! ) .

) C [g . ' ' lTARY I COMMONWEALTH EDISON COMPANY ) NO. 50e456N,UI;7 ##l j

) '.

50-457 (Braidwood Nuclear Station, ) '

Units 1 and 2) )

9 INTERVENORS' MOTION TO STRIKE CMRTAIN PORTIONS OF STAFF'S PREFILED TESTIMONY INTRODUCTIOg Intervenors Rorem, et al., move to strike certain portions of Staff's prefiled written testimony on the grounds that these portions fail to meet the requirements for admissibility of evidence in Commission proceedings and the analogtfus standards y

of the Federal Nules of Evidence. Intervenors identify certain portions of the prefiled testimong filed by Staff s witnesses i which muDt 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 Staff's witnesses lack any personal knowledge whatever of the material facts to which they testify,

.g Such testitaony is therefore incospetent. Additionally, certain portions of the testimony are replete with inadmissible hearsay dnd impermissiblyexpressopinionsobtheultimatefacts.

3 As the Licensing Board rtated in its April 21, 1986,

' ' O h500$k PDR 1

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Memorandum and Order (Ruling on Summary Disposition), Slip Op.,

pp. 5-6:

With regard to statements of contested material fact, the witness must be competent as a fact witness, and we understand that, in general, to require persoinal knowledge. As 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 it. 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. Prefiled testimony which fails to meet this standard must be stricken.

NRC Staff Testimony of Rogelio Mendez and John H. Neisler 2

Regarding Bridget Little Rorem, et al. Subcontention 2 Intervenors object to the following portions of the above-mentioned written testimony and move to strike the following

portions, A.10 (entirety beyond the word Yes.)

Neither Mr. Mendez, nor Mr. Niesler have personal knowledge of what, if anything, was told the OC inspectors by other NRC staff, their testimony is therefore hearsay and lacks the personal knowledge requirement. Furthermore, the witnesses' attempt to testify to what the applicant stated it would conduct, is also hearsay.

A.11 (entirety)

Neither Mr. Mendez nor Mr. 'iiesler are competent to testify what applicant notified the staff of, because neither one was present at the second telephone conference. Furthermore, whatever the content of the telephone conversation was and what applicant said is inadmissible hearsay.

A.21 (first full paragraph, 2nd and 3rd sentence of the second paragraph)

Mr. Mendez's recital of what the OC inspectors told him is pure hearsay, and is inadmissible especially in light of the fact that Mr. Mendez and Mr. Niesler did not record responses nor did they conduct a scientific survey or opinion poll which would meet even minimally acceptable scientific standards. See, e.g.

Advisory Committee Notes, Rule 703, Federal Rules of Evidence.

As to Mr. Mendez's testimony respecting what is contained in 3

a OA Audit Report conducted by the applicant, it is inadmissible hearsay and he lacks personal knowledge.

A.22 (entirety)

Mr. Mendez lacks personal knowledge of what LKC did, if anything, correct those deficiencies. The testimony is therefore incompetent and hearsay.

A.28 (second full paragraph beyond the first sentence)

Mr. Mendez's recital of what the OC inspectors said is inadmissible hearsay. See also Argument on A.21.

A.30 (last sentence)

See Argument to A.21 A.33 (second sentence)

See Argument to A.21 A.35 (2nd paragraph 4th, 5th, 6th and 7th sentences)

M r. Mendez's recital of the contents of a Braidwood OA surveillance report is hearsay, especially in that Mr. Mendez was not involved in its preparation.

A.39 (2nd and 3rd sentences)

See Argument to A.21 A.45 (entirety beyond the first sentence)

See Argument'to A.21 A.47 (entirety)

This question is obectionable in that there is no foundation 4

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layed. There is no question or answer establishing that any action was taken to prevent a recurrence. Therefore, the answer to an improper question should also be struck.

A.50 (first paragraph, second sentence, second paragraph, 2nd and Ira sentence.)

What Mr. Dewald said is inadmissible hearsay, this is also the case when Niesler characterizes what LKC management says. The third sentence is merely an impermissible express opinion.

A.53 (second full paragraph, 2nd, 3rd, 4th and 5th sentence of the.3rd paragraph)

See Argument to 21A A.62 (2nd full paragraph, entirety beyond 1st sentence)

See Argument to 21.A A.65 (2nd sentence)

See Argument to 21.A A.68 (first sentence)

See Argument to 21.A A.71 (1 s t , 4th and 5th sentences of 1st paragraph, 1st sentence second paragraph)

See Argument to 21.A A.90 (entirety)

Inadmissible opinion testimony NRC Staff Testimony of William S. Little Pegarding Bridget Little Rorem, et. al Subcontention 2 Intervenors object to portions of the above-mentioned 5

L

written testimony and move to strike the following portions; A.5 (entirety)

Mr. Little lacks the personal knowledge necessary to support his testimony on this point. Furthermore, it is clearly inadmissible hearsay.

A.6 (the 2nd and 3rd sentences)

Lack of personal knowledge, inadmissible hearsay.

A .7 (entirety)

See Response to A.6 A.8 (first three sentences, second full paragraph)

See Fesponse to A.6 NRC Staff (summary) Testimony of William S. Little Pegarding Bridget Little Rorem, Et. Al. Subcontention 2 (OC Inspector Harassment)

Intervenors object to portions of the above mentioned written testimony and move to strike the following portions; A.6 (last sentence)

Mr. Little's testimony is conclusory; speculative and lacks personal knowledge.

6

Conclusion For the foregoing reasons, Staff's written prefiled testi-mony should be stricken to the particular respects herein argued.

Respectfully submitted,

$~

Timothy W. Wright IIIV One of the Attorneys for Intervenors Forem, et al.

Douglass W. Cassel, Jr.

Robert Guild 109 North Dearborn Suite 1300 Chicago, IL 60602 (312) 641-5570 7

i

.)

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)~

COMiONWEALTH. EDISON COMPANY ) Docket Nos. 50-456

) 50-457 (Braidwood Nuclear Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE

,1 hereby certify that I have served copies of Intervenors' Motion To Strike Certain Portions of Applicant's Prefiled Testimony and Intervenors' Motion To Strike Certain Portions of Staff's Prefiled Testimony on all parties to this proceeding as listed on the attached Service List, by having said copies placed in envelopes, properly addressed and postaged, and deposited in the U.S. mail at 109 North

Dearborn,

Chicago, Illinois 60602; except that Administrative Judge Grossman was served via Federal Express ZAP same day service; Mr. Miller was served by messenger, and Mr. Treby by Federal Express overnight delivery, all on this 29th day of April, 1986.

( "W

d -b BRAIDWOOD SERVICE LIST Herbert Grossman, Esq. Michael I. Miller, Esq.

Chairman and Administrative Judge Peter Thornton, Esq.

Atomic Safety.and Licensing Board Isham, Lincoln & Beale U.S. Nuclear Regulatory Commission Three First National Plaza Washington D.C. 20555 Chicago, Illinois 60602 Richard F. Cole Docketing & Service Section Administrative Judge Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washing ton D.C. 20555 Washington D.C. 20555 A. Dixon.Callihan C. Allen Bock, Esq.

Administrative Judge P.O. Box 342 102 Oak Lane Urbana, Illinois 61801 Oak Ridge, Tennessee 37830 Bridget Little Forem Stuart Treby, Esq. 117 North Linden Street NRC Staff Counsel Essex, Illinois 60935 U.S. Nuclear Pegulatory Commission 7335 Old Georgetown Road Thomas J. Gordon, Esq.

Bethesda, Maryland 20014 Waller, Evans & Gordon 2503 South Neil Joseph Gallo, Esq. Champaign, Illinois 61820 Isham, Lincoln & Beale 1150 Connecticut Avenue N.W. Lorraine Creek Suite 1100 Foute 1, Box 182 Washington D.C. 20036 Manteno, Illinois 60950 Region III office of Inspection &

Enforcement U.S. Nuclear Regulatory Commission 799 Roosevelt Road Glen Ellyn, Illinois 60137 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washing ton D.C. 20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington D.C. 20555 u