ML20065U020

Response Opposing NRDC & Sierra Club 821020 Motion for TB Cochran Qualification as Expert Interrogator.Qualifications as Expert Not Demonstrated.Related Correspondence

ML20065U020
Person / Time
Site:	Clinch River
Issue date:	10/29/1982
From:	Bergholz W, Edgar G ENERGY, DEPT. OF, PROJECT MANAGEMENT CORP.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20065U023	List: ML20065U020 ML20065U024 ML20065U028 ML20065U032
References
NUDOCS 8211030346
Download: ML20065U020 (9)

Text

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'82 00T 29 P2:46 T~ 7, 7 ' W:Hin10/29/82 l;. J. SEkr;t

'l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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UNITED STATES DEPARTMENT OF ENERGY )

PROJECT MANAGEMENT CORPORATION ) Docket No. 50-537 TENNESSEE VALLEY AUTHORITY )

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(Clinch River Breeder Reactor Plant) )

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APPLICANTS' RESPONSE TO INTERVENORS' MOTION FOR QUALIFICATION OF THOMAS B. COCHRAN AS AN EXPERT INTERROGATOR The United States Department of Energ'y and Project Management Corporation, for themselves and on behalf of the Tennessee Valley Authority (the Applicants), hereby respond to Intervenors' Motion for Qualification c f an Expert Inter-rogator under 10 C.F.R. % 2.733, dated October 20, 1982.

10 C .F.R. % 2.733 gives the Board the discretion i

to permit "a qualified individual who has scientific or technical training or experience to participate on behalf of

[a] party in the examination and cross-examination of expert witnesses." Such participation is permitted pursuant to Section 2.733 if "it would serve the purpose of furthering the conduct of the proceeding" and upon a finding, inter alia:

8211030346 821029 PDR ADOCK 05000537 G PDR g,Ung y u

g 2-That the individual is qualified by scientific or technical training or experience to contribute to the develop-ment of an adequate decisional record in the proceeding by the conduct of such examination or cross-examination....

Section 2.733 further provides that the use of such an expert interrogator "shall be limited to areas within the expertise of the individual. . . ."

Applicants oppose the motion for the following reasons:

1) Intervenors have not demonstrated the quali-fications of Dr. Thomas B. Cochran to serve as an expert interrogator.

2) Intervenors have not shown that the granting of their motion will further the conduct of these proceedings.

Intervenors Have Not Demonstrated Dr. Cochran's Qualifications To Serve As An Expert Interrogator Intervenors request that Dr. Cochran be qualified as an expert interrogator in order to conduct cross-examina-tion on Intervenors' Contentions 1, 2, 3, 4, 5 (b) , 6, 7 (a) ,

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7(b) , 8, and 11, (excluding 1(b), 3(a) and 11(a)) J- Yet,

-1/ Intervenors' Motion at 2. Intervenors also represent that, pursuant to 10 C.F.R. 5 2.733, counsel will be responsible for the conduct of cross-examination.

Applicants wish to emphasize that should the Board permit Dr. Cochran to question, Intervenors' counsel remains solely responsible for the form of questions and for responding to all objections raised by opposing parties.

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Intervenors provide the Board with no basis for finding that Dr. Cochran has the " scientific or technical training or experience" to provide the specific " expertise" necesscry to cross-examine on any of those contentions.

Neither the Intervenors' Motion nor the Cochran affidavit directly relate Dr. Cochran's expertise to any specific contentions in this proceeding. The Motion itself, relying on the attached affidavit, merely vaguely asserts that Dr. Cochran "is qualified by scientific and technical training and experience to contribute significantly to the development of an adequate decisional record in the proceed-ing by the conduct of such cross-examination." !

The affidavit, for the most part, contains state-ments which indicate that Dr. Cochran has an academic back-ground in physics, has a general familiarity with nuclear energy and reactor safety, and has participated in the CRBRP licensing proceedings. The affidavit states that Dr. Cochran has testified before legislative and regulatory panels, but fails to state the nature of the testimcny, or the use made of that testimony by the panels.3 / Most importantly, the affidavit does not provide any basis for concluding that Dr. Cochran has the necessary training and experience called 2/ Id.

4 3/ Cochran Affidavit at 2-3.

for by 10 C.F.R. $ 2.733 relating to any specific contention areas.

Even taken in its most favorable light, Dr. Cochran's affidavit makes no claim which in any way demonstrates any expertise regarding Contentions 4 (safeguards) , 5 (site characteristics), 7 (alternatives) and 8 (decommission-ing). As to Contentions la, 2 and 3, Dr. Cochran's "exper-tise" seems to be that he has a Ph.D. in physics, has testi-fled before Congress and a German commission concerning some unspecified topics and has some general experience with mathematical modeling and computer programming.

With regard to Contention 11, Dr. Cochran's

" expertise" seems to be based on an M.S. thesis on Radiation Chemistry, three months of some unspecified on-the-job training which took place approximately twenty years ago, a titular position as campus Radiation Safety Officer (for which no description is provided) and co-authorship of two radiation standards petitions to the NRC, at least one of which was based on the discredited " hot particle" hypothesis l

1 (see below) . Again, none of these claims presents any demonstration of expertise relating to the specific subject matter addressed by Contention 11.

Dr. Cochran's testimony at the August 23-27, 1982 l

Hearings raise some measure of real doubt as to his "exper-l tise" in radiation protection matters. In Dr. Cochran's 1

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Part II testimony regarding dose guideline values, he merely deferred to the testimony of Dr. Morgan and Dr. Cobb. Hear-ing Transcript, TR 3077-3083. The only radiation protection matter in which Dr. Cochran claimed expertise was the " hot particle hypothesis," TR 3083-3085, a theory which has been 4/

uniformly rejected by the NRC,- the Environmental Protec-5/ 6/

tion Agency- and the scientific community.-

10 C.F.R. 5 2.733 contemplates that the use of an expert interrogator for cross-examining expert witnesses "shall be limited to areas within the expertise of the indi-vidual." As demonatrated above, the Board has been given no reason to believe that Dr. Cochran his any expertise in the specific subjecc matter areas which will be considered at the next phase of hearings.

The Conduct Of The Proceedings Would Not Be Furthered By Oualification of Dr. Cochran Intervenors claim that cross-examination conducted by Dr. Cochran "would be in the best interest of all parties, would contribute to the efficiency, speed and utility of the proceedings and would be helpful to the Board by focusing 4/ 41 Fed. Reg.15371 (April 12,1976) .

5/ 42 Fed. Reg. 1288 (January 1977).

-6/ See National Academy of Sciences, Ad Hoc Committee on

" Hot Particles" of the Advisory Committee on the Bio-logical Ef fects of Inhaled Radionuclides (1980); Hear-ing Transcript, TR. 2084-85.

6-and sharpening the cross-examination on several highly tech-nical areas." Intervenors' motion, however, provides little foundation for those sweeping assertions.

Intervenors contend that the only way Intervenors would be able to conduct cross-examination during the next hearing phase without being " severely prejudiced" would be for Dr. Cochran to conduct it. The basis for that conten-tion seems to be the lack of advance preparation by Inter-8/

venors' counsel for the August 23 - 27 hearingst- The Board and all parties are entitled to presume that Inter-venors will be represented by competent, well prepared counsel. A " relevant technical background" which Inter-venors' counsel cleims to lack is unnecessary for effective cross-examination, if counsel has adequately prepared and has been provided with sound technical input of sufficient clarity that counsel can use it to formulate questions for i

cross-examination.

l 7/ Intervenors' Motion at 2.

--8/ Any disadvantage suffered by Intervenors at the August l

23-27 hearings was solely of Intervenors' making.

t Intervenors waited until the opening day of hearings to request that Dr. Cochran be allowed to cross-examine and then the only justification presented was that they had assumed, without any foundation, that he would be allowed to do so. Hearing Transcript TR 1244-1246.

, After the Board prohibited Dr. Cochran's persistent l

whispering in counsel's ear, TR. 2114, counsel con-

[

ducted cross-examination with no apparent difficulty.

l l . _. . .

The issue of whether Dr. Cochran's participation as a technical interrogator will in any way meaningfully contribute to the development of the record is, of course, a matter for the Board's discretion. That discretion should be exercised, however, in light of the Board's prior direct experience with and knowledge of Dr. Cochran, especially his participation in oral arguments before the Board at meetings 9/

of counsel,- his appearances as an expert witness at the hearings and his participation in depositions during dis-covery in these proceedings.

The depositions conducted by Dr. Cochran have fre-quently been characterized by questioning which is argumen-tative, redundant and non-technical. His testimony as an expert witness in the August hearings, on several occasions, 11/

was argumentative and non-responsive.--

It should be emphasized that Intervenors' request, if granted, will place Dr. Cochran in roles which,are inher-ently in conflict. Intervenors ask that Dr. Cochran be allowed to act as an objective commentator in the role of an

-9/ See, e.g. , Transcript of Prehearing Conference (August 2, 1982) TR 792-794.

--10/ See, e.g., Deposition of Edward Branagan, (October 13, 19T2), a copy of which is attached.

---11/ See ge..., Transcript of August 23 -27 Hearing, TR 2955-7937, 2976-2982. See also, TR 2195-2196.

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expert witness-- and as an advocate in the role of an expert interrogator. Although Applicants do not doubt the ability of the Board to ultimately control the nature and scope of Dr. rachran's cross-examination or to distinguish between exper testimony and gratuitous statements by an interrogauor, some justification must exist to subject these proceedings to the continuing potential for delay and con fusion. Since Intervenors have failed to advance that justification, it is difficult to conceive how the Board can exercise its discretion to grant the instant motion.

Conclusion Intervenors have not demonstrated that Dr. Cochran is qualified to act as an expert interrogator for any of the specific contentions in this proceeding. Nor have they presented any reason to believe that well prepared counsel with competent technical support could not adequately repre-l l sent Intervenors' interests. Furthe rmore , Intervenors have not shown how the proceedings will be furthered if Dr. Cochran is allowed to act as an expert interrogator. In fact, in i light of experience to date in these proceedings, it is more reasonable to conclude that allowing Dr. Cochran to cross-

---12/ An expert witness is not an advocate but rather a pro-fessional who is to testify objectively. Pacific Gas i and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-600,12 NRC 3,12 (1980) .

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examine would have a delaying, if not disruptive, in flu-ence. Applicants therefore oppose Intervenors' motion to qualify him pursuant to 10 C.F.R. $ 2.733.

Respectfully submitted, George L 4 dgar Attorney for g

Proj ect Management Corporation

'? MK x Warren E. Bergholz//J .

Attorney for the 4. .

Department of Energy DATED: October 29, 1982