ML20040C330
| ML20040C330 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 01/26/1982 |
| From: | Goldberg J, Wagner M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML20040C331 | List: |
| References | |
| NUDOCS 8201270538 | |
| Download: ML20040C330 (8) | |
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STAFF 1/26/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY C0fEISSION BEFORE THE AT0ff!C SAFETY AND LICENSING BOARD In the ifatter of METROPOLITAN EDIS0N COMPANY, ET AL.)
Docket No. 50-289 W
)
(Restart)
N (Three Mile Island Nuclear Station,)
Unit No. 1)
)
RECEIVED
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JAN2 61993 :d NRC STAFF'S REPLY TO AAMODT PROPOSED FINDINGS namp&% YN
- uw 0F FACT AND CONCLUSIONS OF LAW ON ISSUES B
RAISED IN REOPENED THI-1 RESTART PROCEEDING y
'V cn - tr I.
INTRODUCTION According to the schedule to which all parties agreed (see Tr. 26,549-52) and which was approved by the Special Master (Tr. 26,630),
the Licensee was to file its proposed findings of fact and conclusions of law on January 5,1982, the Intervenors, the Commonwealth, and the Staff were to file their proposed findings on January 15, 1982, and the Licensee and Staff could file replies to the parties' proposed findings on January 22, 1982. ~All parties complied with the established schedule except for the Aanodts. On January 11, 1982, the Aamodts requested and received from the Licensing Board an extension of time until noen on January 18, 1982, to file their proposed findings. Based on that exten-sion of time to the Aamodts, the Licensing Board granted the Licensee x
and the Staff an extension of time until January 26, 1982, to reply to I
Aamodts' proposed findings. See Memorandun and Order, January 13, 1982.
On January 18, 1982, with the agreement of the Licensee and the Staff, I
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, the Aanodts were granted another extension of time until 5 p.m. on Janu-ary 18,1982, to file their proposed findings.M The Aamodts offered proposed findings on several procedural aspects of the reopened hearing, as well as on certain portions of Issue 1 (the extent of cheating by operators), on Issue 3 (the adequacy of Licensee's investigation), and on Issue 5 (Licensee management knowledge of, or failure to prevent, cheating).
In this Reply, the Staff will address the major categories of findings proposed by the Aamodts.
The Staff has not prepared a reply to every statement of the Aamodts with which it dis-agrees, or every 1%m of evidence from which it draws different conclu-sfons. The Staff's determination not to reply to each and every finding proposed by the Aamodts should not be taken to imply that the Staff agrees with or adopts those Aamodt findings to which the Staff has not replied.
II.
PROCEDURAL MATTERS 1.
In a section labelled " Reopened Hearing on Cheating", the Aamodts propose several findings whereby the Board would reverse certain rulings of the Special Master, and reopen the proceedings for further hearings.
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Aamodt Proposed Findings of Fact and Conclusions of Law on Issues Raised in Reopened TMI-I Restart Proceeding, dated January 18, 1982
("Aamodt Findings"). On January 20, 1982, the Aamodts filed a
" Motion for Admissibility of Findings" in which they request that additional proposed findings of fact be " admitted," as well as an
" Errata" containing, inter alia, proposed conclusions of law. The Staff has addressed those matters in a separate answer to Aanodts' Motion for Admissibility of Findings.
. 2.
For example, the Aamodts propose that the Board find that the hearing " failed to develop a complete record on the issues considered because of the accelerated pace of prehearing matters as well as that of the hearing." Aamodt Findings, 1 15. The Board declines to adopt such a finding.
To the contrary, the Board has reviewed the voluminous record of the reopened proceeding and finds that the issues to be liti-gated were appropriately defined and that the record constitutes a fully-developed and complete record that enables the Board to make all findings necessary for the satisfactory resolution of the issues in this reopened proceeding.
3.
The Aamodts propose that the Board find that Judge Milhollin's failure to uphold the Aamodts' (oral) motion "to examine the integrity of the hearing" was " gross error". Aamodt Findings, 1 16. They also pro-pose that the Board find that Licensee's counsel violated Judge Hilhollin's secuestration order of November 12, 1981 and the spirit of sequestration.
Id. Both of these matters are now before the Board on a motion filed 2
by the Aamodts / and will be disposed of by means of Board rulings on that motion rather than in findings of fact.
4.
The Aamodts also propose that the Board find that the stipula-tion of confidentiality afforded certain operators as to their identity was violated, and that the stipulation should have been rescinded for Messrs. O and W because their testimony is inconsistent. Aamodt Find-ings, 1 17. The Board declines to adopt such a finding.
Inconsistent
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Notion for Reconsideration or, in the Alternative, fiction for Directed Certification, dated January 8, 1982.
, testimony by two witnesses does not necessarily mean that either of the witnesses is lying or withholding the truth. Moreover, the Board notes that the " pressure of public scrutiny", rather than promoting candor and full disclosure (as the Aamodts state) might well serve to inhibit candor in a situation where one is asked to confess his own guilt or implicate his co-workers in wrongdoing.
5.
The Aamodts propose other findings relating to alleged "defi-ciencies" in the record.
For instance, they allege that the record is deficient because of the failure of any party to recall management witnesses to address the grading results of the October 1981 licensing examination, an action said to be necessary because the examination grading was not complete at the time these witnesses initially testified.
Aamodt Findings, 1 18.
The Board notes that the Aanodts did not request during the hearing that licensee management be recalled for this purpose, and have waived any right to raise that issue here.
6.
Another alleged " deficiency" is the unresolved testimony of Mr. Ward and Messrs. P and Husted. Aamodt Findings, 1 20. The Board has reviewed Mr. Ward's testimony, and agrees with Judge Milhollin that there is no ambiguity in that testimony and that the circumstances of Mr. P's alleged statements to Mr. Ward are " fully described" in Mr. Ward's testimony.
(Tr. 26,693, Tr. 26,996-7 (Milhollin)). fir. Ward appears to have a clear recollection of his interview with Mr. P.
It clearly would have served no useful purpose to recall Mr. Ward for further questioning on this subject.
7.
The Aamodts also propose that the Board find that the time allotted by Judge Milhollin for cross-examination of Licensee and Staff
. witnesses was too short. Aamodt Findings, f 31. Our review of the record, however, shows that it contains a fair measure of repetitious, irrelevant and cumulative testimony prompted by cross, examination. Judge tiilhollIn properly exercised his discretion as presiding officer in furtherance of developing a full and fair record; in many instances he permitted protracted questioning by the Aamodts and others, even when he himself found the lines of questioning unproductive. See, e.g., Tr. 24,433, Tr. 24,437 (Milhollin). We find the record in this proceeding to be full and complete and to contain none of the alleged " deficiencies" cited by the Aamodts.
8.
The Aamodts would have the Board reconvene the hearings and recall Mr. Hukill for questioning on a letter (dated December 18,1981) not even written until after the hearing was adjourned. Aamodt Findings, i 19. The Aamodts would also have this letter, and a prior one dated December 4,1981, incorporated into the record.
I d_. The admissability of those letters, at this late stage in the proceedings, is the subject of a pending motion by intervenor Ti1IA and will not be disposed of herein.
9.
The Aamodts also propose that we find that Professor Charles Holzinger -- who did not testify at the hearing -- is "an outstanding expert in detecting minimal evidence of cheating." Aamodt Findings, f 26.
Since the Aamodts voluntarily decided not to call Professor Holzinger to testify, there is no record on which to base such a finding, and it nust be rejected.
See Tr. 26,545-47 (ffr. Aamodt).
- 10. The Board is asked to characterize as " threats" certain statements by Licensee and Staff that they would respond with counter-witnesses if the Aamodts called as a witness fir. Harry Williams,
4
. a former guard at Tfil. Aamodt Findings, ! 27. Similarly, the Aamodts propose that Licensee and Staff indications that they would have lengthy cross-examination for prop 0 sed witness Prof. Holzinger be found to consti-tute " threats."
Id.
The Board declines to adopt such a finding. The d
Aamodts' proposed characterization of Licensee and Staff action reflects a misconception on the part of the Aamodts as to the legitimate right of the parties to cross-examine witnesses and call rebuttal witnesses when the situation warrants. The Board notes that the discussion of counter-witnesses and length of cross-examination arose in the context of the scheduling of the hearing. See, e.g., Tr. 25,004-7 (Goldberg),
Tr. 25,021 (Blake). Judge fiflhollin correctly ruled against the receipt of Mr. Willians' testimony after a voir dire examination, on the grounds that the evidence was at best of slight probative value and the witness was not credible.
(Tr. 25,032 (iiilhollin)).
The failure of the Aamodts to call Prof. Holzinger as their witness can be attributed only to the Aanadts. See Tr. 26,545-47 (ffr. Aamodt).
III.
EXTENT OF CHEATING
- 11. The Aamodts have proposed a number of findings on the exten-siveness of cheating by operators at TMI.
The allegations of cheating by operators are fully and accurately addressed in Staff Findings 19-77.
The Board finds them well-reasoned and balanced and an accurate explica-tion of the record, and adopts those Staff findings.
12.
The Aamodts propose a series of findings on the subject of the alleged solicitation of Mr. P by Mr. Husted. Aamodt Findings, 11 53-69.
The allegations involving Messrs. P and Husted are fully and accurately
, addressed in Staff Findings 1f 46-02, which the Board has adopted. Only one proposed finding on this F"hject warrants further response. The Aamodts propose that the Board find that Mr. Ward " intentionally withheld" the information that P allegedly told him in the NRC interview. Aamodt Findings, f 58.
For the Board to make such a finding would be a serious matter indeed. The Special ifaster has reported that Mr. Ward appeared to testify candidly, and fully.
The Board has reviewed Mr. Ward's testimony, and agrees with the Special Master. We refect the Aamodts' proposed findings in this regard, and find, to the contrary, that there is no indication that Mr. Ward intentionally withheld information of the alleged incident at the hearing.
IV. ADEQUACY OF LICENSEE'S INVESTIGATION
- 13. The adequacy of Licensee's investigation is fully and accu-rately addressed in Staff Findings 11 103-121.
The Board finds the Staff's findings in this regard to be well-reasoned and an adequate and balanced explication of the record, and adopts those findings.
V.
EXTENT OF LICENSEE CULPABILITY
- 14. The Aamodts have proposed certain findings on the extent of licensee management " knowledge of, encouragement of and negligent failure to prevent" cheating. Aamodt Findings, if 250-254. This issue has been fully and accurately addressed in Staff Findings, 11 122-127.
, The Board finds the Staff's findings in this regard to be well reasoned and balanced and an accurate explication of the record, and adopts those findings.
Respectfully submitted, L$kL't t r<AVCs Mary. E. Wagner)
Coun el for NRC Staff b
C ack R. Goldberg Counsel for NRC Staff Dated at Bethesda, Maryland this 26th day of January,1982.
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