ML20023C197

Reply Opposing Aamodts 830416 Motion to Reopen Record on Mgt Issues.Motion Unclear & Fails to Meet Commission & Aslab Stds.Info Previously Available.Certificate of Svc Encl

ML20023C197
Person / Time
Site:	Three Mile Island
Issue date:	05/09/1983
From:	Trowbridge G METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8305120292
Download: ML20023C197 (14)

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. May 9, 1983 a

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UNITED STATES OF AMERICA *s

]L NUCLEAR REGULATORY COMMISS gw y NQy h$

by ~

BEFORE THE ATOMIC SAFETY AND LICENSIt! P@EAL B flD-hx,*Sl'i(- i

~ ~ . i va In the Matter of )

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289 i I ) (Restart)

(Three Mile Island Nuclear )

Station, Unic No. 1) )

LICENSEE'S REPLY TO AAMODTS' MOTION TO

REOPEN RECORD OF RESTART PROCEEDING 1

On April 16, 1983, the Acmodts filed with the Commis-i sion a document entitled Aamodt Comments Concerning Staff Review of GPU v. B&W Court Trial Transcript and Motions to Re-open Record of Restart Proceeding. The document includes, j among other requests, a motion to reopen the record of the TMI-l

! 'estart r hearing on several management issues. By Order dated May 5, 1983, the Commission referred this motion to the Appeal Board. Licensee's reply is limited to the motion to reopen.

1 The Aamodts' motion was mailed to Licensee in an envelope

, postmarked April 22, 1983, and received in counsel's office, j marked " Postage Due," on April 28, 1983. Licensee's counsel j heard about the Aamodts' motion and picked up a copy from NRC Staff counsel on April 22, 1983.

8305120292 830509 e-PDR ADOCK 05000289 G PDR

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f Licensee notes at the outset that the scope of the Aamodts' motion is unclear. The motion appears to request that portions of the GPU v. B&W trial record and certain other documents be added to the record of the TMI-l restart hearing record, but does not clearly identify some of the material to be added. In any event, however, the motion does not meet the standards laid down by the Commission and the Appeal Board for reopening hearing records and should be denied.

The standards used in determining whether to reopen an evidentiary record are well settled in NRC case law. The motion must be both timely presented and addressed to a signif-icant safety or environmental issue. If an initial decision has been rendered, the movant must establish that a different result would have been reached initially had the material sub-mitted in support of the motion been considered. Moreover, the proponent of a motion to reopen has a heavy burden. Kansas Gas and Electric Company, et al. (Wolf Creek Generating Station, ,

Unit No. 1) , ALAB-462, 7 N.R.C. 320, 338 (1978). See also Public Service Company of Oklahoma, et al. (Black Fox Station, Units 1 and 2), ALAB-573, 10 N.R.C. 775, 804 (1979). The i

Aamodts' motion does not meet these tests. We discuss below i

each of the Aamodts' five claims of "new significant informa-tion."

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1. The Hartman Matter. The Aamodts base their motion first on a portion of the Hartman deposition concerning I

leak rate tests at TMI-2 prior to the TMI-2 accident which was read into the record of the GPU v. B&W trial. The Hartnan allegations are not new. They first came to public attention when WOR-TV, New York, broadcast an interview with Hartman on March 24, 1980, well before the start of the evidentiary hear-ing in the restart proceeding. The essence of his allegations (tampering by operators with leak rate data with the approval F

of their immediate supervisors) was well publicized in newspaper accounts in the Harrisburg area both at the time of Hartman's television interview and at the time NRC referred his allegations to the Department of Justice for investigation.

Mrs. Aamodt also had other knowledge of the allega-tions. In the reopened management hearing she told the Special i

i Master that she had read the I&E interview of Hartman following j the TMI-2 accident. (Tr. 26,346-47) The Hartman allegations on l

leak rate data are contained in that interview. (The I&E inter-view is reproduced in Volume Four of the Faegre and Benson Report on Investigations of Allegations by Harold W. Hartman, Jr. Con-

! cerning Three Mile Island Unit 2. This report has been distrib-I uted to the Appeal Board and interested parties.)

The Aamodts incorrectly state at one point in their motion that l Hartman's allegations refer to Unit 1 operators. (Aamodt motion, *

p. 3) i

l In addition, the NRC's Safety Evaluation Report, in-troduced in the restart hearing, while not providing details of the Hartman allegations, certainly provided sufficient infor-mation to allow the Aamodts to pursue the matter at that time.

Supplement 1 to the SER stated:

A separate investigative effort is being con-ducted by the Department of Justice (DOJ)'in response to concerns regarding falsification of leak rate test data for the Reactor Coolant

! System (RCS) .... During interviews with the J

NRC, the SIG, and the media, allegations raised concerns regarding the principles of compliance with operating procedures and man-agement philosophy and actions. Investigative effort was initially undertaken by the NRC.

l Subsequently, after consultation with the DOJ, the DOJ convened a Grand Jury which is current-ly hearing testimony in this matter. Pending I

completion of the DOJ investigation, the NRC has suspended its inquiry into the matter so as not to interfere with the DOJ investigation.

Neither the Aamodts nor any other intervenor sought to raise the issue of the Hartman allegations during the Manage-l ment phase of the hearing. The Aamodts' allegation (Aamodt l Motion, p. 8, fn. 2)'that the Special Master denied their motion to subpoena Hartman in the Reopened Hearing on cheating is both inaccurate and misleading. Mrs. Aamodt did express dissatisfac-tion when she learned that TMIA, who had first listed Hartman as a potential witness in their trial plan, had decided to with-I draw his name as a witness. Beyond expressing dissatisfaction, however, she made no request to the Special Master to call or

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subpoena Hartman as a witness. Further, she expressed her dissatisfaction solely in terms of the contribution she thought Hartman might make to the subjects of training and NEC oral operator examinations. Nothing was said about leak rate date.

i (Tr. 26346-48; see also Aamodts' Proposed Findings, January 18, i

l 1982, para. 28) t The Aamodts also assert that GPU violated a pre-hearing ruling by the Special Master on October 2, 1981 "that GPU must provide all records subsequent to the TMI-2 accident concerning cheating of any kind" by failing to provide a copy L of its own investigation of the Hartman allegations. (Aamodt j Motion, pp. 19, 25-26) The Aamodts provide no citation for the ruling and no such ruling was ever made or requested.

Licensee's counsel has searched diligently the transcript of the two-day prehearing conference before the Special Master on October 2-3, 1981, and the Special Master's Memorandum and i

Order Following a Conference Among the Parties dated October 8, i

1981. The closest rulings to the Aamodts' imagined ruling ,

, were those relating to the allowable scope of proposed dis-covery requests by the Aamodts to Licensee. The discovery requests all related to possible cheating on various Licensee- ,

administered tests. There were rulings on the appropriate j time period and categories of tests involved, but all rulings i

were concerned solely with cheating or suspected cheating on l such tests.

i f

The Aamodts are inexcusably late in seeking to reopen the record on the basis of the Hartman allegations and have pro-vided no new information not available throughout the course of the restart proceeding. They do not meet the test of "new cignificant information" on which they base their motion to re-open the record.

2. 1978 TMI In-house Management Audit. The Aamodts cite as a second piece of new significant information a 1978 in-house TMI Management Audit introduced as B&W Exhibit 843 in the GPU v. B&W litigation. The audit was conducted at the request of Mr. J. G. Herbein, Vice President-Generation by a team of four Metropolitan Edison Company employees to ascertain the need for improvement in the areas of management effective-ness and efficiency, productivity, employee morale, and others.

Maintenance and training were among those areas reviewed. The audit team conducted interviews with approximately 50 manage-ment and supervisory personnel in the period January 9-20, 1978, and made its report to Mr. Herbein on February 14, 1978. In keeping with its charter the audit team did identify problem areas and made recommendations for corrective actions. None of the problem areas were identified by the audit team as having safety implications.

/

To begin with the 1978 audit report is not new infor-mation. It was placed in Licensee's Discovery Reading Room in Harrisburg prior to the start of the evidentiary hearing and identified as a document relating to Licensee's management of TMI-2 in response to interrogatories by Chesapeake Energy Alli-ance. (Licensee's Response to First Set of Interrogatories of Chesapeake Energy Alliance, March 31, 1980) Copies of Licensee's response to CEA's interrogatories were furnished to the Licens-ing Board and all parties.

The Aamodts make the bold statement without explan-ation or citation, that the 1978 audit report contained

" safety-related deficiencies" improperly withheld from NRC.

Judging from the discussions which follow this statement, the Aamodts appear to base this allegation on deficiencies in the training program _for TMI-2 personnel. However, of the five audit findings dealing with training, only one goes to operator training (the remainder deal with the need for training for engineers, supervisory personnel, maintenance, HP techs, etc.).

The recommendations made for operator training were all the subject of testimony'in the restart hearing and have been im-plelmented'for TMI-1: i.e. change to six shift rotation to allow one training shift; split the training responsibilities separately for each unit; increase number of training instructors.

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F Further, the thrust of the audit criticisms are more directly aimed at Unit 2 problems: " Auxiliary operators are being sent to Unit 2 and they are not fully qualified on Unit 1 .... The training that is being given on Unit 2 is very ineffective and sof much lower quality than that given on Unit 1. The Training Department personnel do not have the time to learn Unit 2 prop'erly in order to teach it effectively." (Audit at page stamped W 45229) Similar criticisms of Unit 2 training were made by most of the post-accident investigations.

Thus neither the 1978 audit report or the information contained therein on weaknesses in the TMI-2 training program are new information-and their significance is de minimum in view of the attention given to training improvements in the restart hearing.

3. Court Chastisement of Robert Arnold for Mislead-ing Testimony. The Aamodts purport to find new significant I

information in exchanges between counsel and with the Court in the GPU v. B&W trial.

The Aamodts first quote the judge as saying in ref-4 e erence to Mr. Arnold's testimony: "The Court finds that (prior testimony) misleading." No such statement appears at

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the transcript page cited by the Aamodts (Tr. 1741), at the immediately preceding or succeeding pages, or in the pages containing the testimony to which the Aamodts refer (Tr.

1690-99). Licensee's counsel has been unable to check the context in which the judge's statement (if made) occurred.

The Aamodts next assert that the Court " scolded" Mr.

Arnold for having described the training situation as " hunky-dory." The Court did not scold or even address Mr. Arnold.

The Court's remark occurred in chambers in the course of ruling

! on the allowability of rebuttal testimony proposed by B&W.

(Tr. 1740-42) The Court ruled that Mr. Arnold's testimony had created the impression that everything was hunky-dory with the training department and that B&W's proposed testimony would be allowed. There is no suggestion of scolding.

Finally, the Aamodts quote the Court as saying with respect to Mr. Arnold's testimony: "We don't need a speech i

here." The statement was made by B&W counsel, not the Court.

The Court merely sustained an objection by B&W counsel to

! testimony by Mr. Arnold which went beyond the immediate ques-(Tr. 1555) tion asked by GPU's own counsel.

The Aamodts' proposal to reopen the record to receive material of so little consequence does not deserve further dis-cussion.

4. B&W-GPU Interface Concerning Plant Procedures.

The Aamodts treat as a new revelation the opening statements of counsel in the GPU v. B&W litigation acknowledging the commonly accepted fact that B&W's expertise in thermodynamics and analysis of plant transients was far greater than Licensee's limited capability. The claim that B&W's superior expertise, implicit in NRC's scheme of regulation and in the selection of witnesses for the restart hearing, constitutes new information is ridicu-lous. The Aamodts also ignore the extensive testimony in the restart hearing as to B&W's participation in the training pro-gram, including B&W simulator training program, B&W assistance in the Operator Accelerator Retraining Program and B&W's develop-ment of Abnormal Transient Operator Guidelines to aid in training TMI-l operators in accident conditions and analysis.

5. Operator Capability for Handling Emergencies.

The Aamodts again treat argument of counsel in the GPU v. B&W trial as new information warranting reopening of the record.

Counsel's argument had to do with the operators' ability to understand the TMI-2 accident at the time it occurred and con-fusing signals and alarms. The Aamodts then proceed to reargue l their proposal of an off-site decision center manned by nuclear I

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experts where all pertinent data would be displayed by remote 1

readout. The arguments of counsel add nothing to the volumes of information that came out of the major TMI-2 accident inves-

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tigations and do not constitute "new significant information."

Respectfully submitted, SHAW, DITTMAN, POTTS & TROWBRIDGE Ad L $ J GedgeF. Trowbridg P.C. g 09ted: May 9, 1983 May 9, 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD ,

In the Matter of )

! )

METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Three M.ile Island Nuclear )

Station, Unit No. 1) )

CERTIFICATE OF SERVICE ,

l A

I hereby certify that copies of " Licensee's Reply to Aamodts' Motion to Reopen Record of Restart Proceeding, dated May 9, 1983, were served upon those persons on the at-tached Service List by deposit in the United States mail, postage prepaid, this 9th day of May, 1983.

r N/

• Y /

becheF. Trowbridge, .C.

Dated: May 9, 1983

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s UNITED STATES OF AMERICA j NUCLEAR REGULATORY COMMISSION ,

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Before the Atomic Safety and Licensing n peal Board 3;\

hw N.'; . '11 In the Matter of ) .

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METROPOLITAN EDISON COMPANY Docket hp

( estar

, (Three Mile Island Nuclear )

l Station, Unit No. 1) ) -

f SERVICE LIST i Administrative Judge Administrative Judge 4

Gary J. Edles, Chairman Ivan W. Smith, Chairman 1 Atomic Safety & Licensing Atomic Safety & Licensing Board Appeal Board - U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Administrative Judge Administrative Judge Walter H. Jordan John H. Buck Atomic Safety & Licensing Board Atomic Safety & Licensing 881 West Outer Drive Appeal Board Oak Ridge, TN 37830 U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C. 20555 Linda W. Little I Atomic Safety & Licensing Board Administrative Judge 5000 Hermitage Drive Christine N. Kohl Raleigh, NC 27612 Atomic Safety & Licensing l Appeal Board Atomic Safety & Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission i Washington, D.C. 20555

! Jack R. Goldberg, Esquire (4) l Office of the Executive Atomic Safety & Licensing

Legal Director Appeal Board Panel i U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission j Washington, D.C. 20555 Washington, D.C. 20555 Docketing & Service Section (3) Robert Adler, Esquire Office of the Secretary Karin W. Carter, Esquire U.S. Nuclear Regulatory Assistant Attorneys General Commission 505 Executive House Washington, D.C. 20555 Post Office Box 2357 -

Harrisburg, PA 17120

John A. Levin, Esquire ANGRY /TMI PIRC' Assistant Counsel 1037 Maclay Street Pennsylvania Public Utility Harrisburg, PA 17103 Commission Post Office Box 3265 Harrisburg, PA 17120 Jordan D. Cunningham, Esquire Fox, Farr & Cunningham Mr. Henry D. Hukill 2320 North Second Street Vice President Harrisburg, PA 17110 GPU Nuclear Corporation .

Post Office Box 480 Ellyn R. Weiss, 5 squire (1)

Middletown, PA 17057 William S. Jordan, III, Esquire (3 Harmon & Weiss Michael F. McBride, Esquire 1725 Eye' Street, N.W., Suite 506 LeBoeuf, Lamb, Leiby & MacRae Washington, D.C. 20006 1333 New Hampshire Avenue, N.W.

Suite 1100 Mr. Steven C. Sholly Washington, D.C. 20036 Union of Concerned S;ientists 134 6 Connecticu- Ave.ma , N.W.

Ms. Louise Bradford Dupont Circle Bldg., Suite 1101 TMI ALERT Washington, D.C. 20036 1011 Green Street Harrisburg, PA 17102 Chauncey Kepford Judith H. Johnsrud Mr. Norman Aamodt Environmental Coalition on R. D. 5 Nuclear Power

> Coatesville, PA 19320 433 Orlando Avenue State College, PA 16801 John Clewett, Esquira l The Christic Institute David E. Cole, Esquire l 1324 North Capitol Street Smith & Smith, P.C.

l Washington, D.C. 20002- 2931 Front Street

. Harrisburg, PA 17110

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