ML20095K859

Alabama Power Co Response to NRC Staff Motion to Exclude Certain Surrebuttal Testimony.* Motion Should Be Denied in All Respects.W/Certificate of Svc

ML20095K859
Person / Time
Site:	Farley
Issue date:	04/24/1992
From:	John Miller, Repka D ALABAMA POWER CO., BALCH & BINGHAM (FORMERLY BALCH, BINGHAM, BAKER, WINSTON & STRAWN
To:	NRC COMMISSION (OCM)
References
CON-#292-12849 91-626-02-CIVP, 91-626-2-CIVP, CIVP, NUDOCS 9205060068
Download: ML20095K859 (11)

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COLMETED UNITED STATES OF AMERICA V5t4RC 11UCLEAR REGULATORY COMMISSION BEFORE TIIE ATOMIC SAFETY AND LICENSING BOARD '92 @R 29 (01 :28

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r, , i In the Matter of: ) < . ' '-

) Docket Nos. 50-348-CivP ALABAMA POWER COMPANY ) 50-364-CivP

)

(Joseph M. Farley Nuclear )

Plant, Units 1 and 2) ) (ASL3P No. 91-626-02-CivP)

ALABAMA POWER COMPANY'S RESPONSE TO THE NRC STAFF'S MOTION TO EXCLUDE CERTAIN SURREBUTTAL TESTIMONY On April 16, 1992, the NRC Staf f filed a " Motion In Limine" to exclude from Alabama Power Company's Surrebuttai Testimony certain responses that the Staff believes to be irrelevant or unreliable.

For the reasons stated herein, Alabama Power Company requests that the Board deny the Staff's motion in its entirety.

I. IRRELEVANT TESTIMONY The Staff has argued in its " Motion In Limine" that certain

, testimony of Mr. James E. Sundergill regarding the lack of safety significance of the low levels of silicone oil in the GEMS level transmitters is irrelevant. As the Staff notes, this testimony is in further explanation of page 203 of Mr. Sundergill's Direct Testimony in which he explains that the level transmitters at issue

" provide only a redundant indication." As Mr. Sundergill explains in both his Direct Testimony and his Surrebilttal Testimony, Farley Nuclear Plant has a Reactor-Water Storage Tank level $ndication

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that is the " primary meanr' of obtaining the information provided by the GEMS transmitters. Since Mr. Sundergill's Surrebuttal Testimony again explains that even if the GEMS transmitters failed in a design basis event, no safety signii.*cance attaches, the Staff seeks to have this testimony excluded for the same reasons stated in a motion to strike filed on February 4, 1992.

. On February 6, 1992, Alabama Power Company' filed with the Board a response to the Staff's prior motion to exclude Direct Testimony explaining the lack of safety significance of certain of the alleged violations at issue in this enforcement hearing. In that response, Alabama Power Company discussed in great detail Why considar;uton of actual safety sig*11ficance is relevant in this en' rc men action and why the Board must find safety significance to s hc ,1leged violations before imposing any civil penalty. _

Alabama Power Company's response also specifically discussed <

testimony related to the GEMS transmitters in the Attachment, at t

page 3. Alabama Power company refers the Board to that explanation in its February 6, 1992 response and adopts that discussion as its response to the Staff's current motion.

'" Motion In Limine to Exclude Irrelevant Testimony Submitted L by Alabara Power Company," dated February 4, 1992. 2 1'

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II. UNRELJADLE TESTIMONY A. Comments of Platt Electrician The Staff has also sought to exclude as unreliable certain surrebuttal testimony proffered by Mr. Jesse E. Love and Mr.

David H. Jones regarding installation of the Chico A/Raychem seals.

This testimony refutes allegations made by Mr. Wilson regarding what he believes to b- deficiencies in Alabama Power Company's installation inctructions and methodology. Mr. Wilson argues that the instructions did not require the electrician to perform sufficient surface preparation when installing the Raychem seals and, therefore, the seals were unqualified. He speculates that the pipe fittings used at Farley Nuclear Plant might have " burrs or l

sharp edges that could cut the Raychem naterial," but that the Farley installation instructions did not specifically require that these burrs or edges be smoothed prior to application of the Raychem material. Mr. Wilson also claims that since the installation instructions did not specifically require the electrician to " perform a visual inspection" to confirm that the Chico material actually filled the pipe nipple to the requisite i level, the im tallation instructions must be deficient.

These issues were presented by the Staf f.for the first time -at -

l the hearing in February 1992. Subsequent to the hearing, Mr. Jones and Mr. Love spoke with one of the - electricians Who actually I

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installed the eq;ipment to determine whether the Staff's new concerns had application to Farley 11uclear Plant. This conversation with the electrician, among other th4.ngs, shows that the Staff's speculation regarding the Raychem 11stallation practices is simply baseless. This testimony is clearly relevant.

Furthermore, Alabama Power Corapany maintains that it is admissible.

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The Staf f has acknowledged that hearsay testimony is generally admissible in administrativo proceedings. Alabama Power Company agrees. Hearsay evidence is admissible in administrative proceedings, both under the Administrativ? Procedure Act, 5 U.S.C.

5 556(d), and NRC rules of practice, 10 C.F.R. 5 2.743(c).

Wisconsin Elec . Power Cp_m. (Point Beach 11uclear Plant, Unit 2),

ALAB-78 5 AEC 319, 332 (1972). By longstanding practice, hearsay evidence is generally admissible in NRC adjudicatory proceedings.

E.o., Philadelphia Elec. Co x (Limerick Generating Station, Units 1 and 2), ALAB-863, 25 NRC 2 7 3, 279 (1987); Duke Power Co., (Catawca c Nuclear Station, Units 1 and 2) , ALAB-355, 4 NRC 397, 411-12 (1976)

("[E]Ven were we to agree that [the witness'n] testimony was elitirely hearsay, evidence of that character is generally admissible in administrative proceedings.")

The Staff would exclude the testimony nonetheless, arguing that it is unreliable. However, the Staff argues that it is unreliable solely because it is " based not en their [the witnesses') personal knowledge, but rather on the ' recollections'

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f relayed to them by an unidentified person or persons" -- i.e.,  ;

precisely because it is hearsay. Such circular reasoning provides no reasonable basis for excluding the testimony of Mr. Jones and Mr. Love that speaks directly to concerns on qualification preuented by Mr. Wilson at the February hearing. The fact that this evidence is com; unicateu to th9 Board through the testimony of Mr. Love and Mr. Jones does not automatically render it unreliable.

• Thus, the nature of this evidence of fered by Mr. Love and Mr. Jones only affects the weight the Board should place on the evidence and not its admissibility.2 Further, had the Staff raised theso issues at the 1987 inspection, in the inspection report, in the notice of violation, or in the order imposing civil penalty, or even in its Direct Testimony, the electrician consulted by Mr. Jones and Mr. Love may well have been on Alabara Power Company's witness list so he could provide written Direct Testimony in this proceeding to inform the Board that Mr. Wilson's new concerns are groundless.  ! stead, the Staff withheld these new concerns, or even created them for purposes of this enforcement action, raising them for the first time at the February hearing. Interestingly, the Staff used 2

Though Alabama Power Company believes that Mr. Jones and Mr.

Love's testimony on these issues is completely reliable, Alabama [

Power Company would be happy to have the Plant electricians execute  ;

affidavits stating under oath what they told Mr. Jones and Mr. i Love. However, Alabama Power Company - believes that this is  :

unnecessary since the testimony is reliable and since the Staff is welcome to cross-examine Mr. Jones and Mr. Love to challenge the credibility and reliability of their testimony on these issues. f

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similar conversations as the basis for certain of its Rebuttal Testimony. For example, on page 9 of the Staff's rebuttal testimony on V-type taped splices, Mr. Paulk testifies that a Wyle Laboratories test was conducted in a certain manner. He bases this testimony on " discussions that 1 had with the Wyle person in charge of the test." Apparently the Staff has no difficulty concluding that statements made to Mr. Paulk are reliable, but feels compelled to challenge the reliability of statements made to Alabama Power company witnesses.

The experts spcnsoring testimony in this proceeding are "known." The Alabama Power Campany experts are relying on hearsay, in part, as the basis for their expert opinions concerning the installation . of the Chico A/Raychem seals. Most importantly, however, the witnesses will be available for cross-examination, at which time they can be questioned -about the reliability of the hearsay at issue. Thus, the Surrebuttal Testimony at issue should be ruled admissible and should not be excluded by the Board as unreliable. Alabama Power Company submits that the Board should admit such evidence and assign to it whatever weight the Board deems appropriate.

B. Comment of Decht.el Test Enqineer .

The Staff has also challenged the reliability of Mr. Love's and Mr. Jones' Surrebuttal Testimony on page'95 of Volume II. In

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4 that testirony, the Alabama Power Company witnesses respond to a challenge by Mr. Wilson regarding the significance of pouring the Chico compound into the pipe nipple ver;. u using a tygon tube installation methodology. Mr. Wilson claimed in his Rebuttal Testimony that since a quality control inspector's notes on the Bechtel test qualifying the Chico A/Raychem seals says the Chico compound was " poured" into the nipple, no other method for placing the compound into the nipple is acceptable.

The Staff believes that Alabama Power Company's. testimony conveying to the Board the recollection of an electrician involved in the Bechtel test is unreliable and should be stricken from the record. In that testimony, Mr. Love and Mr. Jones state that "in our conversation with onc of the lead electricians who helped make these seals, he stated that his recollection of the 1981 tests was

, that the Chico was added by injection" (the same method as used in 1

the field at Farley Nuclear Plant). Though Alabama Power company sees no significance between " pouring" and " injecting" the Chico compound into the nipple, Mr. Wilson obviously does. Nevertheless, since Mr. Wilson has raised the issue, Mr. Love _and Mr. Jones are previding the Board with the recollection of a test participant who remembers that the Chico wau nol " poured," but rather " injected" into the pipe nipple during the Bechtel test.

Since Mr. Wilson is the one who raised the issue of how the-l pipe nipple was filled with the Cnico compct.nd during the Bechtel i

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test, it is indeed ironic that the Staff now seeks to have stricken l I

from the record a statement made by an eye witness to that test who  !

has a recollection that addresses Mr. Wilson's concern. Though the Staff is troubit - that this is unreliable testimony, it -[

nevertheless is consistent with and is corroborated by Mr. Love's  !

I own recollection of the testing methodology. (Vol. II, page 95 of  !

Alabama Power Company's Surrebuttal Testimony). Mr. Love's >

corroborating testimony clearly shows *. hat the recollection of the test engineer is reliable. Furthermore,-the Staff will have an i opportunity to cross-examine the witnesses on this testimony if it

• i wishes to challenge the reliability of this testimony. As a  ;

i result, Alabama Power Company submits that the Doard should accept ,

-l this testimony and give to it whatever weight the Board believes is  !

t warranted.  :

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i III. CONCLUSION For the foregoing reasons, the NRC Staff's Motion should be denied in all respects. Moreover, Alabama Power Company would welcome an opportunity for oral argument on this matter at the beginning of the hearing on May 18, 1992.

1 N.p',' k; f!  %~

James H. Miller, III

.s l/y'iY ,, l}?blfT'illi(,r,, ~

David A. Repha /

COUNSEL FOR ALABAMA POWER COMPANY OF COUNSEL:

BALCH & BINGHAM

• James H. Miller, III James H. Hancock, Jr.

Post Office Box 306 Birmingham, Alabama 35201 (205) 251-8100 WINSTON & STRAWN David A. Repka 1400 L Street, N.W.

Washington, D.C. 20005-3502 (202) 371-5700 l

l e t UNITED STATES OF AMERICA ' EM.y U NUCLEAR REGULATORY COMMISSION f

i

'92 APR 29 All :28 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l

. F + io ui n w v.c.

.DOLM thG .'. ti m l[ f In the Matter of: )

) Docket Nos. 50-348 CivP ALABAMA POWER COMPANY ) 50-364 CivP

)

(Joseph M. Farley Nuclear )

Plant, Units 1 and 2) ) ASLBP No. 91-626-02 CivP CERTIFICATE OF SERVICE I hereby certify that copies of " ALABAMA POWER COMPANY'S RESPONSETO THE NRC STAFF'S MOTION TO EXCLUDE CERTAIN SURREBU'ITA L TESTIMONY" relating to the above-captioned proceeding have been setved by Federal Express on the following as indicated by an asterisk and othenvise by deposit in the United l

States Mail, First Class, this 24th day of April,199i:

G. Paul Bollwerk, Ill* James H. Carpenter

• Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission l Washington, D.C. 20555 Washington, D.C. 20555 Peter A. Morris

• Eugene J. Holler, Esq.*

Administrative Judge Office of the General Counsel 10825 South Glen Road . U. S. Nuclear Regulatory Commission Potomac, Mu.yland 20854 Washington, D.C. 20555 l Office of the Secretary (2) Atomic Safety and Licensing Board .

! U. S. Nuclear Regulatory Commission - Panel

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

Attn

Docketing and Service Section Washington, D.C. 20555 Adjudicatory File (2) Office of Comtr!ssion Appellate Atomic Safety and Licensing Board Panel . Adjudication U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. ' 20555 1

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Mr. W. G. Hairston,111 llegional Administrator Southern Nuclear Operating Company, U. S. Nuclear Regulatory Commissio.'-

Inc. Region 11 Post Office Box 1295 101 Marietta Street Birmingham, Alabama 35201 Suite 2900 Atlanta, Georgia 30323 James Lieberman, Director Office of Enforcement U. S. Nuclear Regulatory Commission Washington, D.C. 20555

. . l', r i cf !. t James 11. Miller,111

{ Counsel for Alabama Power Company 1

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