ML20107C171
| ML20107C171 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/19/1985 |
| From: | Bernabei L GOVERNMENT ACCOUNTABILITY PROJECT, THREE MILE ISLAND ALERT |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#185-655 SP, NUDOCS 8502210207 | |
| Download: ML20107C171 (5) | |
Text
%55 UNITED STATES OF AMERICA 00CKETED NUCLEAR REGULATORY COMMISSION 3"C BEFORE THE ATOMIC SAFETY AND LICENSING BO Q[OCf0.cfECv~
In the Matter of
)
"Ilj].l Docket No. 50-289 g']
)
METROPOLITAN EDISON COMPANY
)
)
(Restart -- Management..,
(Three Mile Island Nuclear
)
Phase)
Station, Unit 1)
)
^r THREE MILE ISLAND ALERT'S MOTION TO STRIKE PORTIONS OF LICENSEE'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE DIECKAMP MAILGRAM ISSUE Pursuant to 10 C.F.R. S 2.730 Three Mile Island Alert ("TMIA")
moves that the Board strike'certain portions of " Licensee's Pro-posed Findings of Fact and Conclusions of Law in the Form of a Partial Initial Decision on the Dieckamp Mailgram" ("Licencee's l
Findings") on the ground that they are not supported by evidence on the record of this proceeding.
TMIA requests that the following portions be stricken:
(I)
Licensee's Findings, Par. 37, at 25, from "In fact..."
through the end of par. 37, at.26, related to TMIA's Deposition l
of H. McGovern (September 26, 1984) at 32 ("McGovern Deposition").
l (II)
Licensee's Findings, par. 131, at 92, n. 21.
I.
The McGovern Deposition Licensee refers to portions of the McGovern Deposition taken by TMIA on September 26,-1984, in the course of discovery in this
-proceeding.
Licensee listed the McGovern Deposition in a so-called " Notification by Licensee of Intended Joint Mailgram Exhi-8502210207 850219 PDR ADOCK 05000289 G.
bit References and Deposition Stipulations"(November 27, 1984).
f f Tr. 30, 105, at 2-3.
None of the depositions taken during the course of discovery, including the portions of the McGovern Depostion to which Licensee has cited, were included in the Joint Mailgram Exhibits stipulated into evidence by the parties.
Al-though Licensee listed a portion of the McGovern Deposition in its Board Notification, it never moved the Deposition into evidence.
Under the rules established by the Atomic Safety and Licensing Board (" Licensing Board"), Board Notices or Notifications were authorized in order to permit parties to draw the Board's atten-tion to specific items in Joint Mailgram Exhibit t (c) upon which the parties intended to rely in their findings.
The Board established the procedures which the parties were to follow with respect to relying on Joint Mailgram 1 (c) on.the first days of the hearing, November 14, 1983.
Tr. 28, 134-28, 136.
The Board stated, in relevant part, the following:
(A)ny party that wishes to rely on any document or any document in the bound exhibits to bring it to the attention of the Board and the parties that you intend to rely upon these documents in your proposed findings to the Board.
Otherwise, in your proposed findings if you allude to a document and it has never been discussed during the hearing, never been referred to by a witness, never been identified, you may find that we will disregard the document.
Tr. 28, 134.
Joint Mailgram Exhibit 1 was received into evidence with this caveat on November 14, 1984.
Tr. 28, 137.
The McGovern Deposition, however, was not included in Joint Mailgram Exhibit 1 (c), and never moved into evidence by Licen-see.
Therefore, the McGovern Deposition is not in evidence be-
fore this Board and Licensee may not rely on it.
Moreover, the Licensing Board made it clear that Licensee's Notification was merely " notice and not a motion...,"
apparently to indicate that it was not admitting into evidence any exhibits since Licensee had not sought their admission.
Tr. 29, 556.
The Board "ac-cepted" the Licensee's Notification, but clearly did not ex-pressly admit into evidence any of the documents listed in the Notification which were not already in evidence.
Tr. 29, 550-29, 557.
Therefore, Licensee cannot rely on the McGovern Depo-sition in its findings since the Deposition is not in evidence before the Board.
TMIA requests that the Board strike Licen-see's Findings, par. 37 at 25 from "In fact..." through the end of par. 37, at 26.
II.
Dr. Henry Myers' Stipulated Testimony and Attendance at the Hearings In Licensee's Findings, par. 131, at 92, n. 21, Licensee states as follows:
The lack of finding on the Dieckamp mailgram is curious in that the very issue of the Dieckamp mailgram has been perpetuated at the considerable urging of Congressman Udall and Dr. Henry Myers (the Committee's Science Advisor).
Congres-sional interest in this matter has been evident both to the Special Inquiry Group and to the NRC's I&E.
Tr. 30, 661-30, 662, 30, 703 (Gamble);
JME 1(c) (107) at 81.
In fact, even in this pro-ceeding TMIA at one point proposed Dr. Myers as a TMIA witness.
TMIA subsequently withdrew the proposal in return, inter alla for Licensee's agreement to drop interrogatories inquiring into information and support provided TMIA by Dr.
Myers.
See JME 1(a) at 9 Nevertheless, the Board observed that Dr. Myers did attend the hearings during the appearances of key witnesses in this proceeding.
TMIA moves that the Board strike footnote 21 on the basis that
it is unsupported by evidence in the record.
First, Licensee suggests that the Dieckamp Mailgram issue is before this Board "at the considerable urging of Congressman Udall and Dr. Henry Myers."
This statement is patently untrue.
Rather, the Atomic Safety and Licensing Appeal Board remanded the Dieckamp Mailgram issue to this Licensing Board to ensure that the Licensing Board would resolve Board Issue 10 adequately.
Second, Licensee's statement that Dr. Myers "did attend the hearings during the appearances of key witnesses" is an improper subject for Board comment.
The record of these pro-ceedings does not include an attendance list of observers.
Therefore, the attendance of certain individuals at these hear-ings cannot form the basis for Board comment.
Third, Licensee states in Footnote 21:
(T)MIA at one point proposed Dr. Myers as a TMIA witness.
TMIA subsequently withdrew the proposal in return, inter alia for Licensee's agreement to drop interrogatories inquiring into information and support provided to TMIA by Dr. Myers.
See JME 1(a) at 9.
This statement misrepresents the stipulation.
The stipulation does not state that TMIA " withdrew" Dr. Myers "in return for" Licensee's agreement not to inquire into "information and suppo'Jt provided to TMIA by Dr. Myers."
In contrast, TMIA agreed to stipulate to Dr. Myers' proposed testimony in lieu of calling him as a witness because Licensee agreed to stipulate into evidence the repoit of the Majority Staff of the House Committee on Interior and Insular Affairs, " Reporting of Information Con-cerning the Accident at Three Mile Island" (March 1981) ("Udall Report") Joint Mailgram Exhibit 1(c) (144).
TMIA proposed Dr.
Myers' testimony to provide a sponsor for admission of the Udall Report and to place into the record evidence about the temperature at which a zircalloy-steam reaction would occur.
JME 1(a).
Only the stipulation is in evidence before the Board and not the undocumented negotiations between the parties leading up to the stipulation.
Thus, the Board cannot rely on any party's characterization of these negotiations in its decision.
Therefore, TMIA moves that the Board delete footnote 21 from Licensee's findings.
III.
Conclusion For the foregoing reasons, TMIA requests that the Board strike the portions of Licensee's Findings cited above on the ground they are not supported by evidence in the record.
Respectfully submitted, 4 A_n Ly (Berhabei Geor e Shohet Go nment Accountability Project 15 Connecticut Ave., N.W.
Su e 202 Washington, D.C.
20036 (202) 232-8550 Attorneys for TMIA DATED:
February 19, 1985 t
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COVERNMENT ACCOUNTABILITY PROJECT 1555 Connecticut Avenue, N.W Sube 202 Weington, D.C. 20036 (202)232 6 February 4, 1985 f
Ivan W. Smith, Chairman Administrative Judge Atomic Safety and Licensing Board i
U.S. Nuclear Regulatory Commission r
Washington, D.C.
20555 k
Sheldon J. Wolfe Administrative Judge Atomic Safety and Licensing Board I
U.S. Nuclear Regulatory Commission t
Washington, D.C.
20555 F
Gustave A. Linenberger, Jr.
i Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
?
l
Dear Administrative Judges:
I am writing to inform the Licensing Board of what I per-ceive as a serious misrepresentation by Licensee in proposed findings on the Dieckamp Mailgram issue, filed on January 28,
[i 1985, pertaining to, in part, negotiations between licensee attorney Mr. Blake and myself.
Since these proposed findings
[
are part of the public record I think it is important to bring the matter to the Board's and the public's attention at this I;
time.
b g
on page 92, footnote 21, of licensee's findings the fol-(
lowing is stated:
t The lack of finding on the Dieckamp mailgran.
E is curicus in that the very issue of the e
Diechamp mailgram has been perpetuated at the
{
considerable urging of Congressman Udall and g
Dr. Henry Myers (the Committee's Science Advisor).
Congressional interest in this matter E
has been evident both to the Special Inquiry B
Group and to the NRC's I&E.
Tr. 30,661-30,662, f
30,703 (Gamble); JME 1(c) (107) at 81.
In fact, E
even in this proceeding TMIA at one point pro-t posed Dr. Myers as a TMIA witness.
TMIA subse-g quently withdrew the proposal in return, inter p
alla for Licensee's agreement to drop interroga-D tories inquiring into information and support provided to TMIA by Dr. Myers.
See JME 1(a) at 9.
Nevertheless, the B.oard observed that Dr.
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Page Two February 4, 1985 Administrative Judges Letter Myers did attend the hearings during the appear-ances of key witnesses in this proceeding.
First, I would note that the Dieckamp Mailgram issue 'fus currently before this Board as a result of an Appeal Board order romanding the issue.
showing of how Congressman Morris Udall or Dr. Henry MyersLicens influenced, or is in anyway responsible for,that Appeal Board decision.
And, as this Board well knows, the Board itself found the Dieckamp Mailgram important to its resolution of Board Issue 10.
The Commission itself has viewed the mailgram as important to a determination of management integrity and competence.
Transcript of October 14, See 1981 Nuclear Regulatory Commission meeting.
Licensee's representation that Congressman Udall, the NRC oversight committee which he chairs, or the committee staff in some manner improperly promoted the issue as a matter of con-cern to this Board should not be tolerated by this Board.1 i
Secondly, Licensee suggests that Three Mile Island Alert
("TMIA") made some kind of agreement to drop Dr. Myers as a wit-ness and. withdraw his testimony in this proceeding in order to i
avoid answering interrogatories about information or support Dr. Myers provided to TMIA.
Joint Mailgram Stipulation As can be seen from the face of the (or the Modified Joint Mailgram Stipu-lation) TMIA did not withdraw Dr. Myers' testimony but in fact stipulated to this testimony.
was stipulated, discovery concerning that testimony became mootAt the time D and irrelevant to this proceeding.
The Joint Mailgram Stipulation reads, in relevant part, as follows:
The signatory parties agree that acceptance of this stipulation by the Licensing Board will bind the parties at the evidentiary hearing and further obviate TMIA's calling Dr. Henry Myers as a witness in the captioned proceedings.
l Licensee agrees in the captioned proceedings not to depose Dr. Myers, and not to seek documents from Dr. Myers, TMIA or NRC related to Dr. Myers on the Dieckamp mailgram issue.
Licensee further.
has withdrawn a number of outstanding interroga-tories to TMIA.
1Licensee cites David Gamble's testimony as supportive of its characterization.
In fact, Mr. Gamble testified merely that Dr. Myers' concern about this issue, and Victor Stello's direc-tion to resolve this concern, were the reasons I&E reviewed tho issue in the course of its NUREG-0760 investigation.
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P go Three February 4, 1985 Administrative Judges Letter TMIA agreed to stipulate to Dr. Myer's' proposed testimony because Licensee agreed to stipulate into evidence the report of the Majority Staff of the House Committee on Interior and Insular Affairs, " Reporting of Information Concerning the Acci-dent at Three Mile Island (March 1981) ("Udall Report") of which Dr. Myers was the primary author.
Further, licensee agreed to stipulate a technical point on the tem zircalloy-steam reaction would occur. peratures at which a See Stipulation at 9.
TMIA did not draft and did not pursue this stipulation.
To the contrary, TMIA entered into this stipulation largely at the urgining of Mr. Blake, who envisioned that he would have problems obtaining discovery of a House Committee staff member whose tes-timony was been offered in this hearing for the limited purpose of sponsoring the Udall Report.
The background to the stipulation is instructive of how licensee has misled the Board in its description of the stipu-lation.
In a prehearing conference held on September 17, 1984, I informed the Board that TMIA would propose calling Dr. Myers as a witness if arrangements could be made through attorneys for the House of Representatives for him to appear to sponsor
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the Udall Report.
The Board urged the parties to see if they could arrive at some accommodation as to his testimony because of.the sensitivity of agency attempts to compel the testimony-of a staff member of an NRC Congressional oversight committee.
on September 18, I spoke to Steve Ross, attorney for the House of Representatives, who indicated to me that Dr. Myers would be permitted to testify but that his testimony would be limited by restrictions imposed by the Speech and Debate Clause.
Mr. Blake informed me that he visited Mr. Ross in his office the following day, September 19, and was informed as to l
the restrictions on any testimony by Dr. Myers and restrictions on any discovery of Dr. Myers by Licensee.
Mr. Blake, according to my notes of a conversation I held with him later that day, i
stated that he had asked the company if he could propose enter-ing into a stipulation to solve the potential problems with Dr. Myers' testimony.
I indicated to him that I had no problem with that since TMIA intended to call Dr. Myers for the limited purpose of sponsoring the Udall Report and to testify as to the temperature range at which the zirconium-steam reaction occurs.2 l
2Dr. Myers is science advisor to the House Committee on the Interior and Insular Affairs.
He is a physicist and familiar with basic reactor physics, i
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4 8 Page Four 1
February 4, 1985 i
Administrative Judges Letter Within the next two days, Mr. Blake completed drafting the
" Joint Mailgram Stipulation. "
In both drafts of the stipulation which I reviewed, Mr. Blake, not I for TMIA, included sections withdrawing interrogatories concerning Dr. Myers and his testi-mony.
I had previously told Mr. Blake that these interrogatories i
and document requests appeared to me intended not to elicit use-
)
ful or discoverable information but merely to harass TMIA and Dr. Myers.
However, I at no time recommended that they be included in the etipulation or suggested that I would withdraw j
our proposal that Dr. Myers appear as a witness because TMIA feared responding to licensee's discovery requests.
In fact, my legal opinion was then, as now, that the discovery requests simply because moot at such time ac the parties stipulated to Dr'. Myers' testimony.
b Mr. Blake proceeded to expend what I perceived as extensive time and energy to ensure that we entered into a stipulation
. regarding Dr. Myers' testimony.
I played little role, and expended little time or effort, in drafting or reviewing the Joint Mailgram Stipulation.
TMIA's position was that it per-ceived no problem in presenting limited testimony from Dr. Myers 4
on the Udall Report or in answering relevant discovery requests from GPU concerning that limited testimony.
t Licensee's suggestion that TMIA somehow withdrew Dr. Myers' t-testimony in exchange for not having to answer certain interro-gatories is simply knowing misrepresentation.
Finally, it is clear to me that this Licensing Board has no jurisdiction to base findings on observations of individuals who o
attended these hearings.
Moreover, it appeared that on those occas ion when Dr. Myers attended the hearings he was in the company of NRC personnel.
This Board does not have any idea what the purpose of Dr. Myers' attendance was, and certainly could not substantiate the inference urged by the licensee.
l TMIA would consider it just as improper, for example, to I
i rely in its findings on the fact that it~ observed five company i
attorneys in the hearing room during the testimony of Curtis Conrad, in addition to Mr. Conrad's personal. counsel Mr. McBride.
TMIA, therefore, requests that this Board order licensee to amend its Findings to delete footnote 21 on page 92 since it 4
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Administrative Judges Letter currently appears in the public record of this case.
TMIA requests that licensee counsel be admonished that thisFurther, conduct not be repeated in the future.
Sincerely yours, St 1 2.R.s ob Lynne Bernabei Attorney for W hree Mile Island Alert cc TMI Service List 9
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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 SP
)
(Three Mile Island Nuclear
)
(Restart - Mapagament Phase)
Station, Unit No. 1)
)
)
)
I hereby certify that a copy of the foregoing Three Mile Island Alert's Proposed Findings of Fact and Conclusions of Law on Dieckamp Mailgram Issue has been served this 19th day of rebruary, 1985, by mailing a copy first-class, postage prepaid to the following:
l Service List
- Administrative Judge Docketing and Service Section (3).
i Ivan W. Smith, Chairman Office of the Secretary Atomic Safety & Licensing doard U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Cormission Washington, D.C. 20555 Washington, D.C. 20555 l
- Administrative Judge Atomic Safety & Licensing Board Panel Sheldon J. Wolfe U.S. Nuclear Regulatory Commission j
Atomic Safety & Licensing Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission
.vtshington, D.C.
20555 Atomic Safety & Licensing Appeal Board Panel
- Administrative Judge U.S. Nuclear Regulatory Commission Gustave A. Linenberger, Jr.
Washington, D.C.
20555 Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission
- Jack R. Goldberg, Esq.
Washington, D.C. 20555 Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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Thomas Au, Esq.
Office of Chief Counsel Joanne Doroshow, Esq.
The Christic Institute Department of Environmental 1324 North Capitol Street Resources Washington, D.C. 20002 505 Executive House P.O. Box 2357 Harrisburg, PA 17120 Michael F. McBride, Esq.
LeBoeuf, Lamb, Leiby & MacRae i
1333 New Hampshire Avenue N.W.
- Ernest L. Blake, Jr.
Suite 1100 Shaw, Pittman, Potts & Trowbridge Washington, D.C. 20036 1800 M Street, N.W.
Washington, D.C. 20036 Michael W. Maupin, Esq.
Hunton & Williams Mr. Henry D. Hukill 707 East Main Street Vice President Post Office Box 1535 GPU Nuclear Corporation Richmond, VA 23212 P.O. Box 480 Middletown, PA 17057 Ellyn R. Weiss, Esq.
William S. Jordan, III, Esq.
TMI Alert Harmosa, Weiss & Jordan 315 Peffer Street 2001 S Street, N.W.
Harrisburg, PA 17102 Suite 430 Washington, D.C.
20009 Mr. and Mrs. Norman Aamodt R.D.
5 TMI-PIRC Legal Fund Coatesville, PA 19320 1037 Maclay Harrisburg, PA 17103 Ms. Louise Bradford TMI Alert 1011 Gre?n Street Harrisburg, PA 17102
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i ff ib d J., v LyngeBernabei
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