ML20099L375
| ML20099L375 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 11/28/1984 |
| From: | Trowbridge G GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20099L378 | List: |
| References | |
| CON-#484-347 SP, NUDOCS 8412010104 | |
| Download: ML20099L375 (5) | |
Text
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November 28, 1984
- n DCCKETED U3MC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'n n.m I
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
\\
1 In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-2893k#
)
(Restart Remand (Three Mile Island Nuclear.
)
on Management)
Station, Unit No. 1)
)
LICENSEE'S REPLY TO TMIA MOTION FOR DIRECTED CERTIFICATION At a prehearing confcrence held on November 9, 1984, in connection with the Dieckamp mailgram issue, the Licensing Board ruled against TMIA's motions, both dated November 1, 1984, to admit in evidence the deposition of fermer Commission-er Peter A. Bradford and to permit the testimony of former Com-missioner Victor Gilinsky without prefiling written testimony.
On Nov, ember 19, 1984, TMIA filed with the Appeal Board a motion to consider and reverse the Licensing Board's rulings.
Licensee opposed before the' Licensing Board TMIA's November 1 motions with respect to the deposition of Mr.
l t,
Bradford and the testimony of Dr. Gilinsky and for the same S
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.o reasons opposes TMIA's request to consider and reverse the Li-i i
censing Board's rulings.
Licensee's objections to the TMIA mo-tions were fully set forth in Licensee's Response to TMIA's Mc-tion to Admit Deposition of Peter A. Bradford as Testimony and
~
Licensee's Response to TMIA's Motion for Leave to Present Tes-timony of Victor Gilinsky on Dieckamp Mailgtam Issue Without Prefiling Written Testimony, both dated November 8, 1984.
Copies of Licensee's November 8 responses are attached hereto for the convenience of the Appeal Board and Licensee will not repeat in this filing the arguments already presented to the Licensing Board.
This reply will confine itself to new matters contained in TMIA's motion for directed certification.
1.
TMIA argues that because the Licensing Board has ad-mitted testimony by Mr. Dieckamp bearing on the accuracy of his mailgram and his integrity, the Licensing Loard should also have allowed opinion testimony by Mr. Bradford and Dr. Gilinsky on the ultimate issues in the proceeding.
The distinction be-tween Mr. Dieckamp's testimony and the proposed testimony of the former Commissioners is clear.
The Licensing Board has em-phasized that the issue before it is the issue of Mr.
Dieckamp's personal integrity.
(Tr. 28,314)
The question of Mr. Dieckamp's personal integrity obviously involves the ques-tion of his knowledge and analysis of accident events and per-ceptions.
On that question Mr. Dieckamp is an indispensable witness.
Mr. Bradford and Dr. Gilinsky have nothing to offer T
~but their personal analyses of the very facts and documents the Licensing Board will be called upon.to analyze and decide.
TMIA has not established that they have anything to offer as to Mr. Dieckamp's state of mind.
2.
TMIA also argues that because the Licensing Board has admitted testimony by Mr. Lowe which include,d his opinion of Mr. Dieckamp's charact'er and integrity, Mr. Bradford and Dr.
Gilinsky should be permitted to give their opinions on the same subject.
The situations are entirely different.- Mr. Lowe testified to his close association with Mr. Dieckamp over a pe-riod of years and especially in the hectic month following the accident.
He was well qualified as a character witness.
The only stated contacts between Dr. Gilinsky and Mr. Dieckamp were an alleged discussion at the May 7, 1979 briefing of the Udall Committee at TMI and subsequent " discussions" which, judging by TMIA's motion to the Appeal Board, consisted solely of discus-sions in the course of public Commission meetings.
(Memorandum in Support of Motion for Directed Certification, p.
8)
The only stated contacts by Mr. Bradford with Mr. Dieckamp were at Commission meetings.
3.
TMIA continues to ignore the prejudice to Licensee in not having prefiled testimony by Dr. Gilinsky, stating that Dr.
Gilinsky was unwilling to prefile testimony on TMIA's behalf.
Dr. Gilinsky could hardly have objected, however, to a request directed to him by the Licensing Board itself asking for q l
i
prefiled testimony, either at the instancelif Licensee or on the Board's own initiative.
TMIA effectively precluded this possibility-by waiting until the deadline set by the. Licensing Board for written prefiled. testimony before requesting an ex-ception for Dr. Gilinsky.
(See in more detail attached Licens-ee's Response to TMIA's, Motion for Leave to,Present Testimony of Victor Gilinsky on Dieckamp Mailgram Issue Without Prefiling Written Testimony, p. 2) 4.
TMIA offers Mr. Bradford's deposition in part to rebut the soundness and conclusions of the Staff's investiga-tion and report (NUREG-0760) on accident information flow, including the Dieckamp mailgram.
The Licensing Board has al-ready ruled, however, that NUREG-0760 is to be admitted in evi-dence only for facts contained in the report and that the par-ties may not rely on its conclusions as evidence in the proceeding.
(Tr. 29,01E-17)
There is no call for Mr.
Bradford's second-hand kr.owledge and opinion on the soundness of the Staff investigatiore.
5.
TMIA characterizes the Licensing Board's rulings as "the Board's application of the Ethics in Government Act to bar the testimony of two former WRC officials."
.(Memorandum in Support of Motion for Directed Certification, p. 14)
In fact the Board expressly declined to interpret the Ethics in Govern-ment Act.
Instead, while supporting its rulings as consistent 1
l with the basic intent behind the Act and its regulations, the 4 '
l
... ~.
~
Board based its rulings on elementary principles of fairness and the inadmissability of testimony by witnesses offering their status as prior Government officials but not the ex-pertise to justify the admissibility of their opinions.
(Tr.
27,842, 27,843, 27,848, 27,851-2, 27,855, 27,'865)
Licensee respectfully requests that thE Appeal Board deny TMIA's motion for directed certification of the Licensing Board's rulings.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE f/}ffj d
~ 0'e~o r g d F. Trowbridge, f.C.
Counsel for Licensee Dated: November 28, 1984,