ML20010A117

Motion to Strike Marrack Prefiled Testimony.Testimony Is Not Specifically Responsive to F Sanders 810205-06 Testimony. Certificate of Svc Encl.Related Correspondence

ML20010A117
Person / Time
Site:	Allens Creek File:Houston Lighting and Power Company icon.png
Issue date:	08/05/1981
From:	Copeland J BAKER & BOTTS, HOUSTON LIGHTING & POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8108110085
Download: ML20010A117 (8)

Text

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Aucust 5, 1981 REldTED CORRESPONDENCE 8 A P

UNITED STATES OF AMERICA h NUCLEAR REGULATORY COMMISSION -

l BEFORE THE ATOMIC SAFETY AND LICENSING BOARD -

AUG 61981 . t.c  ;

\ " , Cf%C: t!w o~a ?

. . :::n

. .a Q In the Matter of S 't, o c.a S / 3 HOUSTON LIGHTING & POWER COMPANY S Docket No. 50-466 ;s S

S

[ 9 (Allens 5tishi Creek

, UnitNuclear 1) Generating S 0

[ N[ '

MOTION TO STRIKE PREFILED Z t '

TESTIMONY OF DR. MARRACK e'%%0/p Q On 5 July 27,1981, TexPirg filed a document entitled ggx g's Supplemental Direct Written Testimony of Dr. Marrack".

This supplemental testimony was to be offered in response to testimony presented by Dr. Frank Sanders on February 5 and 6, 1981. (Tr. 9799-80).-1/For the reasons stated below, Applicant moves to strike the majority of this testimony.

For ease of referer.ce, a copy of the testimony is attached hereto with numbers written beside each paragraph.

A careful review of the testimony and the record shows that in fact this testimony is not specifically responsive to Dr.

Sanders' testimony.

Paragraph 1: The testimony states that "[b]oth Dr. Sanders D

s

/I lf There are only three transcript references in the entire 14 pages of testimony, and even these three references have no apparent relationship to the subject of Dr.

Marrack's testimony. Absent specific and relevant transcript references, counsel for the other parties, and the Board, are left to guess at what portions of Dr. Sanders' testimony are being addressed by Dr. Marrack.

8108110085 810805_

PDR ADOCK 05000466 PDR g

and the Texas Parks and Wildlife Departmnnt both admit that for a sustained desirable sport fishery, the Allens Creek Lake will depend on regular restocking of fish." There is no such admission by Dr. Sanders or the TPWD at pages 4701 to 5083. In fact, Dr. Sanders testified that the lake would be a self-sustaining crappie fishery. (Tr. 5035-36). The testimony is thus offered in response to a statement that was not made and should be stricken.

Paragraph 2: This paragraph discusses the threat to humans from ingestion of fish contaminated with mercury. Dr. Sanders does not testify at pages 4701 to 5083 as to the amount of mercury contamination of fish necessary to cause a health hazard to humans. (Also see the discussion of Paragraphs 31-33, infra.) The testimony is not properly offered sa a response to Dr, Sanders' testimony and should be stricken.

Paragraph 3: The testimony in this paragraph is not reliable or material evidence because Dr. Marrack has previously admitted he is not an exp6rt on the spawning habits of the sport fish that will be in the lake (Tr. 4469-73). Accordingly, this paragraph should be stricken.

Paragraph 4: This paragraph asserts that there will not "be 1

enough shad and other smaller fish to supply the dietary needs of the sport fish." He cites four factors which will limit growth of shad: (1) lack of spawning habitat; (2) limited i

sunlight penetration; (3) power plant cropping; (4) chlorine.

Dr. Sanders did testify that there would be abundant spawning habitat for shad (Tr . 4710). However, for l

l .-- ..

1 the reasons discussed in connection with Paragraph 3, any testimony by Dr. Marrack on spawning habitat is not reliable or material evidence and should be stricken. Indeed, Dr.

Cheatum had to inform Dr. Marrack of the spawning habits of shad (Tr. 4462). Points (2) and (4) were never discussed in terms of their impact on the growth of shad (see Tr.

4724; 4716; 4735; 4740; 4750). Point (3) is beyond the scope of the contention (Tr. 5009-5011). Accordingly, the paragraph should be stricken in its entirety.

Paragraph 5: The testimony in the first seven sentences regarding the state of the record in the absence of the TPWD in this hearing is argumentative and should be stricken.

The last three sentences are legal argument and should be stricken.

Paragraphe 6, 7, 8& 9: Dr. Marrack's testimony in these four paragraphs is premised on the representation that Dr. Sanders testified that his calculation of chlorine decay rates was based on the assumption that there is "a single chemical called 'TRC'." Clearly that was not Dr. Sanders' assumption.

l (See Tr. 4740; 4750). These four paragraphs are thus based on a misrepresentation as to what Dr. Sanders stated and, therefore, all four paragraphs should be stricken.

Paragraphs 10 & 11: These paragraphs should be stricken. The question of water quality in the reservoir prior to plant j operation is irrelevent.

l Paragraphs 12-15: Rather than expressing disagreement with l

Dr. Sanders' calculations, Dr. Marrack has indicated that I

i

he was relying upon Dr. Sanders' calculations for his own conclusions (Tr. 4481-83). His supplemental testimony is obviously nothing more than an effort by Dr. Marrack to change his prior testimony and does not respond to any statement by Dr. Sanders at pages 4701 to 5083. In fact, Dr.

Sanders made no projections of the future growth of Sealy and Wallis. (Tr. 4720). Therefore, this paragraph should be stricken, because it does not respond to any statements by Dr. Sanders regarding future population projections.

Paragraphs 16 & 17: These two paragraphs are offered in response to comments at Tr. 4720 regarding the effects on recreational use of " inadequately treated sewage" and " exotic weed growth and algae bloom," None of these subjects were discussed at Tr. 4720, so this could not be offered in response to Dr.

Sanders' testimony. Moreover, the question of " exotic weed growth" is outside the scope of the contentions. Accordingly, these paragraphs should be stricken in their entirety.

Paragraphs 18-21: These paragraphs are stated to be in response to remarks made by Dr. Sanders at Tr. 4708. However, none of the topics covered in these four paragraphs--chlorine,

(

t temperature, heavy metals, algae - were discussed at Tr.

l 4708. Therefore, this is not offered in responce to Dr.

Sanders' testimony and should be stricken.

l Paragraphs 22-24: Dr. Sanders was never asked any questions that required him to justify the assumption that the lake would support 200 pounds of fish per acre (see Tr. 4983, 5080). Moreover, the transcript reference (Tr. 4732) in Dr.

i 1

Marrack's testimony has -tothing to do with the subject. All that is contained on that page is a question by Mr. Doherty that is totally irrelevant to the calc'ulation of the standing crop of fish in the lake. These paragraphs should be scricken in their entirety because they are not offered in response to Dr. Sanders' testimony.

Paragraph 25: This subject was discussed at Tr. 4751 and Dr.

Marrack's testimoay is arguably responsive.

Paragraphs 26-27,: The subject of cold shock was discussed at Tr. 4775-4782, but there was no discussion of the rate of change, or absolute temperature necessary for cold shock.

Accordingly, this is not offered in response to Dr. Sanders' testimony and these two paragraphs should be stricken.

Paragraph 28: This paragraph should be stricken for the reesons stated in the discussion of Paragraphs 22-24.

Paragraph 29: This paragraph constitutes legal argument and should be stricken.

Paragraph 30: This subject was discussed in Dr. Sanders'

~

! testimony (see Tr. 4825-27), but there is no apparent conflict between the two. It is, therefore, impossible to tell why this testimony is being offered.

Paragraphs 31-33: The testimony in Paragraphs 31 and 32 are obviously intended as a basis for the conclusion in Paragraph 33 which conludes that mercury in fish will be a health hazard to humans. Dr. Sanders' testimony related to the effect of heavy metals on the fish. He did not testify on the effect on humans of eating mercury contami-nated fish. (Tr. 4702; 4747-49; 4766-4770). The Board has

previously ruled that the latter issun is bnyond the scopo of TexPirg's contention (Tr. 4770). Therefore, these para-graphs do not constitute relevant evidence and should be stricken.

Paragraph 34: This subject was discussed at Tr. 5013-14, and Dr. Marrack's testimony is arguably responsive.

Paragraph 35: Contrary to the first sentence of this testimony, Dr. Sanders testified that crappie would spawn to depths greater than eight feet (Tr. 4947; 4960-4963). Accordingly, the testimony is based on misrepresentation of Dr. Sanders' testimony and should be stricken. The testimony should also be stricken for the reasons described in discussion of Paragraph 3.

In sum, Applicant's paragraph by paragraph review .

has shown that only two paragraphs (25 and 34) are relevant, admissable testimony that are arguably offered in response to Dr. Sanders' testimony. The remaining paragraphs contain non-responsive, irrelevant and inadmissable testimony which should be stricken.

Respectfully submitted, OF COUNSEL: ,. 24- /

J Greg g' pelind \,

BAKER & BOTTS ott EV R zell 3000 One Shell Plaza 000 One S ell Plaza Houston, Texas 77002 ouston, Texas 77002 LOWENSTEIN, NENMAN, REIS Jack E. Newman

& AXELRAD Robert H. Culp 1025 Connecticut Ave., N.W. David B. Raskin Washington, D.C. 20036 1025 Connecticut Ave., N.W.

Washington, D.C. 20036 ATTORNEYS FOR APPLICANT HOUSTON LIGHTING & POWER COMPANY UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of S S

HOUSTON LIGHTING & POWER COMPANY S Docket No. 50-466 S

(Allens Creek Nuclear Generating S Station, Unit 1) S CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Applicant's Motion to Strike Prefiled Testimony of Dr.

Marrack in the above-captioned proceeding were served on the following by deposit in the United States mail, postage prepaid, or by hand-delivery this 5th day of August, 1981.

Sheldon J. Wolfe, Esq., Chairman Hon. Frank Petter Ato1ric Safety and Licensing Mayor, City of Wallis Board Panel P. O. Box 312 U.S. Nuclear Regulatory Commission Wallis, Texas 77485

. Washington, D. C. 20555 Hon. Leroy H. Grebe Dr. E. Leonard Cheatum County Judge, Austin County Route 3, Box 350A P. O. Box 99 Watkinsville, Georgia 30677 Bellville, Texas 77418 Mr. Gustave A. Linenberger Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D. C. 20555 Washington, D. C. 20555 Mr. Chase R. Stephens Atomic Safety and Licensing Docketing and Service Section Board Panel Office of the Secretary U.S. Nuclear Regulatory of the Commission Commission

U.S. Nuclear Regulatory Commission Washington, D.C. 20553 Washington, D. C. 20555 i

Susan Plettman Richard Black l David Preister Staff CJunsel Texas Attorney General's Office U.S. Nuclear Regulatcry P. O. Box 12548, Capitol Station Commission Austin, Texas 78711 Washington, D. C. 20555 Bryan L. Baker Brenda McCorkle 1118 Montrose 6140 Darnell Houston, Texas 77019 Houston, Texas 77074

J. Morgan Bisht? W. Matthew Porrcnod 11418 Oak Spring 4070 Merrick Houston, Texas 17043 Houston, Texas 77025 Stephen A. Doggett Wayne E. Rentfro P. O. Box 592 P. O. Box 1335 Rosenberg, Texas 77471 Rosenberg, Texas 77471 John F. Doherty William Schuessler 4327 Alconbury 5810 Darnell Houston, Texas 77021 Houston, Texas 77074 Carro Hinderstein James M. Scott 609 Fannin, Suite 521 13935 Ivy Mount

Houston, Texas 77002 Sugar Land, Texas 77478 i

D. Marrack V. O. " Butch" Carden, Jr.

420 Mulberry Lane City Attorney Bellaire, Texas 77401 City of Wallis P. O. Box A East Bernard, Texas 77435 J

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