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December 20, 1982

Lawrence Brenner, Esq., Chairman Dr. Richard F. ColeAdministrative Judge Administrative Judge

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

Dr. Peter A. MorrisAdministrative Judge

U.S. Nuclear Regulatory ComissionWashington, D.C. 20555

In the Matter ofPHILADELPHIA ELECTRIC COMPANY

(Limerick Generating Station, Units 1 and 2) |Docket Nos. 50-352 and 50-353 i

Dear Administrative Judges:

The NRC Staff has recently obtained infomation bearing on testimony givenbefore this Board in the captioned matter.

By letter dated December 6,1982, Anthony R. Conte, U.S. Department of theInterior Regional Solicitor in Newton Corner, Massachusetts, has providedStaff the correspondence regarding the testimony of Messrs. McCoy and Millerbefore this Board. A copy of the Fish and Wildlife Service's regulationsregarding the testimony of employees was attached to Mr. Conte's letter.

Pursuant to the Staff's responsibility to infom the Board, we are providingMr. Conte's letter together with the attachments described above.

Sincerely,

Ann P. HodgdonCounsel for NRC Staff

Enclosure:As stated

cc: see next page

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8212220097 821220PDR ADOCK 05000352O PDR

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cc:Walter W. Cohen Robert W. AdlerSteven P. Hershey, Esq. W. Wilson GoodeMr. Frank R. Romano Donald S. Bronstein, Esq.Judith A. Dorsey, Esq. Mr. Edward G. Bauer, Jr.Troy B. Conner, Jr. , Esq. Mark J. Wetterhahn, Esq.Mr. Marvin I. Lewis James M. Neill, Esq.Joseph H. White III Dr. Judith H. JohnsrudThomas Gerusky Dir. Pa. Emer. Mgmt AgncySugarman and Denworth Robert L. AnthonyAlan J. Nogee Atomic Safety & Licensing BoardCharles W. Elliott, Esq. Atomic Safety & Licensing Appeal Panel '

!NRC Docketing and Service Section,

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DISTRIBUTION.!

NRC DocketLPDR

|PDR

FF (2) ,

Christenbury/ScintoHurrayLiebermanRutberg ,

IChandlerVoglerChan ;

Schwencer ;

Martin

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' DESIG"aTED ORIGINAL !

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OELD : 0 ELD zle : : : :--

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NAME : AHo con:am : JRu :Christenbury: : : :

_____:____________:______ ____:____________:____________:.. _________:____________:... _______iDATE : 12/t1/82 : 12//1/82 : 12/dD/82 : : : :

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IN REPLY REFER TO

United States Department Of the I$teriOr.

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OFFICE OF THE SOLICITOROne Gateway Center

Suite 612Newton Corner, M A 02158

December 6, 1982

Ann Hodgdon, Esq.,

U.S. Nuclear Regulatory CommissionWashington, DC 20555

Dear Ms. Hodgdon:

Pursuant to your request, I am enclosing copies of allcorrespondence between the Fish and Wildlife Service andRobert J. Sugarman and between the Service and Joseph Millerand Richard McCoy regarding testimony on the proposed PointPleasant diversion. Also enclosed is a copy of 6 AM 3.1, ,

which sets forth the FWS policy concerning testimony byemployees.

I understand that you will be providing this office withcopies of the written testimony provided by Miller and McCoyand those portions of the transcript which you believeestablish that they participated as experts.

We will be in touch with you when we have received the,

testimony and transcripts.

Sincerely,

,,!u, ~ ,~, .,

ANTHONY R. CONTERegional Solicitor

Enclosures!

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Joseph Miller Delaware River BasinAnadronous Fishery Project

THRlit ARD-Hatchcrics and Fisheries Resources, Region S.

3 c o 9 ,,. jn,cof I* ' Regional Director Region 5 L'^ **

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Permission to Provide Testimony on the Point Pleasant Diversioni

In response to a September 3,1982 request from Rogert J. Sugarman, Attorney,

) At Law, representing Del-AWARE linlimited, I hereby grant you permission to.

I testify at the MRC hearings on the Limerick Generating SBation and associated(

'Point Pleasant Diversion during the week of October 4-8, 1982.,

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b' 1r you have any questions please contact Dan Kimball.,

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Richard McCoya F1shery BiologistaState College Field Office

THRus Field Supervisor, State College Field Office gp ? -' ' ' '

ARD-Habitat Preservation, Region 5

bCT\ gional Director, Region S

Permission to Provide Testimony on the Point Pleasant Diversion,

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In response to a Septc.1ber 3,1982 request fro:a Robert J. Sugarman, Attorney

At Law, representing Del-AWAR2 Unlin:lted, I hereby grant you permission to

testify at the NRC hearings on the Linovick Generating Station and associated

Point Pleasant Diversion during the week of October 4-8, 1982.;.

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If von have any questions please contact Mike Bartlett.

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SEP ? : U62

Nr. Robert J. SugaraanSugarman and DenworthAttorneys at LawSuite 510 Rorth American Building121 Sorth Broad StreetPhiladelphia, PA 19107

Dear Mr. Sugarment

This responds to your Sept ==har 3,1982, letter requesting the testimony ofMessrs. Joscph Miller and Richard McCoy, and associated Point PleasantDiversion during the week of October 4-6, 1982. '

I hereby grant permission for Messrs. Miller and McCoy to answer questio.u ontheir written testimonies, hat please note that the Fish end Wildlife ServiceAdministrative Manual (6AN3.1D(3)) specifies that "an a:Aployee any not testifyas an expert witness for an adverse party in any legal proceeding in which theUnited States is a party or har an interest but may testify as to facts within

'his knowledge." Also please a11ow sufficient time in your schedule for mystatf at the Regional office to review the written testimonies of Messrs.Miller and McCoy before it is submitted to you.

I trust that the participation of these gentlemen will assist in the resolution '

of this case.

Sincerely yours,

('%w 5"""- a C. f.;lic- -l..

ACMIIOReglocal Director

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6 AM 3,1 'yCOVERINDiTAL RELATIONS

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3. Judicial Proceedinas t

'

3.1 Authority for participation. This section prescribes Bureaui

policies and procedures and sets forth Departmental regulations e

on testimony of its employees as witnesses in a judicial oradministrative proceeding. . .

' 'In 4 AM 4.65 authorit;y is delegated to regional diregtors togrant written permission to. employees to testify in judicialproceedings on matters related to Government business or thecontent of official records. |

A. Coordination. When arrangements are made for employee!

participation in legal proceedings, and especially those betweenprivate litigants, this action should be fully coordinated among *

all offices concerned. Expectation of involvement in legal ;

proceedings should be pron:ptly reported to the Washington Of fice '

so that the latter will be prepared to handle inquiry ,on the ,

'

subject. It is also important that the Washington Office unit so ,

notified, alert other Washington Of fice divisions or staf f of fices'

concerned to assure a coordinated action' and response in thesematters.

,

.B. ; Apoearance ar.d t estimony. Since official participation of !employees in judicial proceedings is on matters related to i

ICovernmene buciness, or on the centent of official records, care *

must be taken that the parameters of participation are known...

Perhaps this can best be determined by discussion with counselof the side calling the employee as a witness. Likcvise, counselshould be able to inform of reasons and need for the particular {testimony. In addition, there might be some advance review of , g'

~

the$ material to be covered. s|

In an appearance on the witness stand, an egioyee should keep |this advice in mind: ,

e

1. Be sure the question is understood before giving an answer,. !.

2. Do not be rushed into answering; stay calm and deliberate. (

3. Be as courteous and responsive as possible, |,

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opinion. (An exception might be in the case of cxpert opinions.), ]4 Stick to facts and do not venture into hearsty and

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6A 3.1C. .-

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C. Departwental terutations. The Department's regulations on ktestimony of employees are quoted below from 43 CFR 2.20: ;,

"(a) An officer or employee of the Department shall not J [C|

testify in any judicial or administrative proceeding *

concerning matters reint'ed to the business of the |Government or the contents of official records without k

,

the written permission of the head of the bureau or ioffice, or his designee, or of the Secretary. If the 1

head of a bureau or office, or his designee, concludes jthat permission should be withheld, he shall report the

[matter inmediately to the Secretary for determination, *pand the officer or employee shall appear in gaswer toprocess and respectfully decline to testify, pending the f

yreceipt of instructions from the Secretary, pp the jground that testimony is prohibited by this port.

(b) Any person (including a public agency) wishing an officer '

.

-

or employee of the Department to testify in a ju'dicial or 6administrative proceeding concerning a matter related tokthe business of the Government or the contents of officials '

records must submit a statement in writing, setting forth hj4

gthe interest of the litigent and the information with >

respect to which the testimony of the officer or employee -

of the Department is desired, before permission to..

.'testify will be granted under this section. In the case itof a private litigant, this written statement must be in ' '

the form of an af fidavit. Permission to testify will be Elimited' to the information menticned in the written '*{ $,,

.

y s t at er.ent , or to such portions thereof as the official s;E fgranting the per=ission deems proper. 6 -.h< 3(c) 'Ihe Solicitor of the Department of the Interior mcy ''

exercise all the authority of the Secretary of the Interiorunder this section. " '%

'

7%D. Ceses involving the United States. Regional directors are t.$delegated the authority to permit employees to testify in 4 AM 4.6B. . . ppThis authurity is . exercised in accordance with the following rules: . f ,,*

. :: ;

(1) Written permission of the regional director is required * "g 4 jwhenever an employee is requested 'to testify se an expert ;'g yor non-expert witness for the United States by: the U.S. ..,.{4 ; yAttorney in charge of presenting the case or,ps a non- ;,Qs c,

expert witness by a party adverse to the United States *,'.mexcept as provided in (2) below. Upon such rs3uest, the " ' l' ' ' '

employee notifies the regional director, through channels, .?i,

stating the names of the parties involved in the litigation, ' [" *the matter in controversy, and the nature of the testimony T|ghe expects to give.

Release .6-9, FEB 181969, ,,g, i

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COVERMKENTAL RELATIONS 6 NA 3,'1D(2) "

Judicial Proceedings YN.

(2) Permission of the regional director is not required when iappearing as a witness for the United States or a State k

-and the proceeding concerns: e. 6.

5 i

;, .a ,.(a) Land-condemnation cases arising within the Bureau"

. :'or initiated by the States involving Federal Aid Tyfunds..

*-jq(b) Violations of Federal or State laws Which e:nployees t.

are authorized to assist in enforcing. |, - . .

c i(3) An employee may not testify as an expert witness for an,adverse party in any legal proceeding in attich the United

|States is a party or has an interest, but s;ay testify +as to f acts within -his knowledge,

e

(4) Appearances in behalf of the United States or a Statei

are in duty status and no leave need be taken. No travelauthorization other than the usual blanket or specific "'

f. trip authorization is necessary. Travel expenses and '

& subsistence are reimbursed by the Bureau, except in cases-

i

not arising in the Bureau or Department. In those cases,a

g the expense account is prepared on a special fom furnishedf by the United States marshal and presented to the marshal .!

[sf- for payment, or alternatively, the Bureau may reimburse

:the employee and later collect the amount from the using.4 department or agency (28 U.S.C.1823). No other expenses jf. or fees (ac:ounts allowed as pay for attendance) are t(. ac:epted (19 Comp. Gen. 201). [,

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Cases between private litigants. This section governs appear- gE...

W. ances of an employee in proceedings between private litigants k[. (including States and Cooperators) to testify solely because ~

&C of and in his official capacity, i.e., testimony concerning the $.*l

business of the Government or the contents of official records. {!. This section does not cover cc.ses where an employee is calledf'' as an expert witness.' Such cases are covered in sec.F , below. (s

[[h! 1. , b .. (1) permission to testify. Upon request as provided in k: ti. , 43 CFR 2.20, or on properly being served with a subpoena Ild' in such a case, the employee inraediately reports it to {''

'T the regional director. If the regional director decides +

Af@)k- that permission to testify should be withheld, he icanediately k (

g fN- .reports the matter to the Director for determination and the

employee appears in answer to the subpoena and respectfully ^4 / q,I%; 1. declines to testify in accordance with 43 CFR 2.20 (quoted -

C $ in sec. C , above), pending receipt of instruction from the 'iI N,Director. .i. . ; ...

.NN Release 6-9,FEB 181969. ..e%< wps+ s .

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covrnyrvnt itvT>trTorgs6 AM 3.1E(2) Ii ! l

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h,. - -- - Judicial Proie.df nes '- "-

. . ,if cea:pliance with a subpoena by an employee would '

seriously affect the performance of official duties or ,

require producing documents or filas, the release ofi ,

which is prohibited by Depart wncal policy, the regional 5

director, through the regional or field solicitor, attempts ~I

,

to have the subpoena withdrawn or modified. '

(2) Factual testimony. An employee testifies only as tofacts within his personal knowledge. He must obtain

|the permission of the Director before disclosing anyinformation that is restricted by statute or that would '

violate any Departmental policy or regulation. Extreme- care must be taken to avoid any appearance of favoritism

, etoward a particular individual or group, even though "I>

they may be cooperators. All citizens are entitled to{icipartial, ethical behavior of the highest order fromjBureau employees in the conduct of Governstent business.iA

If an employee is asked a question calling for expert testi- v

(

||mony, he vill decline to answer on the grounds that it is the|Bureau's policy not to permit its employces to act as expert

-- |- vitnesses in cases between private parties. If the court;

then orders him to testify, the employee complies with the j '|.

;

order of the court., ,i

((3) Fees and expenses. In this type case, the employee's 1.

appearance is considered in duty status and no leave need ,d 'be taken. Fees and expenses are accepted, but all amounts a

collected over and above the amount of actual and necessary I

, expenses for travel and subsistence are deposited in theg Treasury as miscellaneous receipts. [

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h COVdODENTAL RELATIONS' '

k.,p . .ga3 3, .

_ Judicial Proceedings- y}'

'

fp ARThe employee furnishes the regional office with a state.

ment of his fees, allowances and expenses, together with u d'i ..

|. .a remittance in favor of the Bureau of Sport Fisheries ...f {and Wildlife for any excess. "y- |

-.

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F. Cases between privateilitigants; expert testimony. Occasionally, ?; b >.

2an employee is asked to testify in favor of a private party, not %because of his knowledge of Bureau operations or Government @. a. 'ibusiness, but because of his individual training or skill in sorne

f"profession, art, science, trade, etc. Such witnesses are called 'M'" expert vitnesses". An expert witness may express an opinion I

either on the basis of his personal knowledge of the facts, or he 4*

r.ay be asked to render an opinion on the basis of a hypothetical -yquestion which assumes facts reasonably within the scope of the ..,

evidence in the record. An ordinary or non-expert witness generally {

,

F

may testify only as to facts within his knowledge. I

Pt 'Bureau employees are nct permitted to appear as expert witnesses 'ffor private litigants, except that they may appear in favor offa cooperator or a State where the Bureau has an interest in theF.4decision to be rendered. 1.itigants are expected to obtain their

;

G expert witnesses from other sources. The reaeona for this policyare: "

. .,

(1) To conserve employees' time for conducting official business. f,

<

.(2) To avoid any impression that the Bureau favors one or the fother of the litigants, p

N i-

.( 3) To assure that any Covernment investment in an employee's h~

experience and training is not diverted to private purposes. Q4only the Director may grant permission to deviate from the policy $

prescribed in this.section. When requesting a deviation from policy, ha regional director submits a full justification as to why a devia- Qtion is desirable in the particular case and his reccurnendationfor decision. g

@$i

G. Cases unrelated to employment. Appearances in private litiga- Ntion cases unrelated to an employee's dutics cr to Governmentbusiness have no official chcracter. An employee may appear ,-

without permission of the regional director, however, he assures $as part of his testimony that he does not purport to represent

[<$,;the Bureau's views or policies. He is charged annual leave or /1 eave without pay for time absent from work. He may collect and Y. -

retain all fees and expenses allowed him. .N

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