ML19323A585

Comments on ASLB 800325 Order Re Adoption of TMI Alert Deposition Program Concerning Util Mgt & Financial Competence.Question Re Whether Depositions Have Been Productive Should Not Be Addressed by Licensee

ML19323A585
Person / Time
Site:	Three Mile Island
Issue date:	04/03/1980
From:	Trowbridge G METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8004210421
Download: ML19323A585 (6)

Text

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

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

LICENSEE'S COMMENTS ON ASLB MEMORANDUM AND ORDER DATED MARCH 25, 1980 By Memorandum and Order dated March 25, 1980, the Board directed affected parties to comment on the possibility that the Board might adopt as its own TMIA's inquiry into Licensee's management and financial competence by way of dep-ositions of Licensee's employees and ex-employees and might direct the Staff to take depositions to complete TMIA's depo-sition program. Licensee would oppose such a course of action on several grounds.

1. While unaware of any case law in point, we question whether the Board's proposal oversteps the Board's authority to direct Staff actions in the proceeding. Boards can and frequently do call upon the parties, including the NRC Staff,.to develop for hearings subjects of interest to the Board. It is quite a different matter, however, to direct the Staff to pursue a particular method of. discovery and to' pursue a particular line of inquiry, neither of which are-of T

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the Staff's own choosing.

2. We are disturbed at the use the Board proposes to make of the TMIA depositions already completed and to be completed. The Board has indicated that it has begun to re-view the eight depositions already served by TMIA on the Board (but not on the Staff) and intends to review other TMIA depositions as received to determine whether the Board should ,

intercede. Depositions are not part of the record of the hearing unless and until received in evidence. 10 CFR 2.740a(g) .

Cross-examination of the deponent has not been conducted, ob- l jections have not been heard, and opportunity for rebuttal testimony has not been provided. We recognize that the Board's only purpose at this juncture, as stated in its Memorandum and Order, is to determine whether TMIA's inquiries are reasonably calculated to lead to the discovery of evidence necessary to a proper decision in the proceeding. We do not believe it _

i possible, however, for the Board to make that' determination without making some judgments about untested statements not of record in the proceeding.

3. We suggest that the Board's proposal. crosses the line referred to by the Appeal Board in the Midland decision "between rendering indirect financial support to an intervenor

--which we take to be proscribed by Commission policy--and arranging to hear evidence which a Board deems relevant and important for its resolution of a significant contested issue."

In footnote 9 to that decision the Appeal Board suggested caution before accepting written direct testimony-from a

~ Board witness that was previously prepared by him in his capacity as a witness or expert for a partisan in the pro-ceeding. Similar caution should, we believe, be exercised in sponsoring continuation of a line of depositions already well underway along directions established by a single in-tervenor, particularly one who would be invited to partici-pate in and further shape the course of further depositions.

While representatives of Licensee have attended each of the TMIA depositions and may have a better picture  ;

of them than the Staff (which attended only a few deposi-tions), we do not think it appropriate for Licensee to ad-dress the question put by the Board to the Staff as to  !

whether the TMIA depositions have been potentially productive. ;

l Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE l

By }lffy, . M i

.(

Y G[orge F. Trowbridg[

Dated: April 3, 1980 l

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. Lic 4/3/80 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Comments on ASLB Memorandum and Order Dated March 25, 1980," were served upon those persons on the attached Service List by deposit in the United States mail, postage prepaid, this 3rd day of April, 1980.

k W

• jf NeorgeF. Trowbridg[

o . -

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

In the Matter of )

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Thrca Mile Island Nuclear )

Station, Unit No. 1) )

SERVICE LIST Ivan W. Smith, Esquire John A. Levin, Escuire  !

Chairman Assistant Counsel  !

Atomic Safety and Licensing Pennsylvania Public Utility Comm';

Board Panel Post Office Box 3265 {

U.S. Nuclear Regulatory Commission Harrisburg, Pennsylvania 17120 washington, D.C.

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20555 '

Karin W. Carter, Esquire Dr. Walter H. Jordan Assistant Attorney General Atomic Safety and Licensing 505 Executive House Board Panel Post Office Box 2357 881 West Outer Drive Harrisburg, Pennsylvania 17120 Oak Ridge, Tennessee 37830 John E. Minnich Dr. Linda W. Little Chairman, Dauphin County Board Atomic Safety and Licensing of Commissioners Board Panel Dauphin County Courthouse 5000 Hermitage Drive Front and Market Streets Raleigh, North Carolina 27612 Harrisburg,-Pennsylvania 17101 James R. Tourtellotte, Esquire (4) Walter W. Cohen, Esquire Office of the Executive Legal' Director Consumer Advocate U. S. Nuclear Regulatory Commission Office of' Consumer Advocate Washington, D.C. 205E5 14th Floor, Strawberry Square Harrisburg, Pennsylvania 17127 Docketing and Service Section (21)'

Office of the Secretary U. S. Nuclear Regulatory Commission Washington,jD.C. 20555 L

Jordan D. Cunningham, Esquire Karin P. Sheldon, Esquire Attorney for Newberry' Township Attorney for People Against T.M.I. Steering. Committee Nuclear Energy 2320' North Second Street Sheldon, Harmon & Weiss Harrisburg, Pennsylvania 17110 1725 Eye Street, N.W., Suite 506 Washington, D.C. 20006 Theodore A. Adler, Esquire Widoff Reager Selkowitz & Adler . Robert Q. Pollard Post Office Box 1547 609 Montpelier Street Harrisburg, Pennsylvania 17105 Baltimore,. Maryland 21218 ,

Ellyn R. Weiss, Esquire. Chauncey Kepford.

Attorney for the Union of Concerned Judith H. Johnsrud Scientists Environmental Coalition on Sheldon, Harmon & Weiss Nuclear' Power 1725 Eye Street, N.W., Suite 506 433 Orlando Avenue Washington, D.C. 20006 State College, Pennsylvania 16801-Steven C. Sholly Marvin I. Lewis 304 South Market-Street 6504 Bradford Terrace ,

Mechanicsburg, Pennsylvania 17055 Philadelphia, Pennsylvania 19149 Gail Bradford Marjorie M. Aamodt Holly S. Keck R. D. 5 , ,

Legislation Chairman Coatesville, Pennsylvania 19320 Anti-Nuclear Group Representing York 245 West Philadelphia Street York, Pennsylvania 17404 l

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