ML20108B513
| ML20108B513 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/01/1985 |
| From: | Blake E GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#185-904 SP, NUDOCS 8503070327 | |
| Download: ML20108B513 (16) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION s t &, %' Si e f n "
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In the Matter of
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METROPOLITAN EDISON COMPANY
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Docket No. 50-289
)
(Restart Remand (Three Mile Island Nuclear
)
on Management)
Station, Unit No. 1)
)
LICENSEE'S RESPONSE TO 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 I.
Introduction On February 19, 1985, TMIA filed a Motion to Strike Por-tions of Licensee's Proposed Findings of Fact and Conclusions of Law on the Dieckamp Mailgram Issue. TMIA asks the Board to strike a portion of Licensee's Proposed Finding 37 and footnote 21 of Licensee's Proposed Findings.
As explained below, Li-censee believes the challenged portions of its findings were appropriate and could be relied on by the Board.
In any event, however, even if the Board were to decide not to rely on these particular findings, the Board should not strike them.
8503070327 850301 PDR ADOCK 05000289 U
T TMIA first moves the Board to strike the portion of para-graph 37 in Licensee's January 28, 1985 findings that discusses the deposition of Hugh McGovern conducted by TMIA during dis-covery in this proceeding.1/
As its basis, TMIA argues that the portion of the McGovern deposition clearly was not received into evidence.
TMIA Motion, at 2-3.
It, however, is not as clear as TMIA suggests.
Licensee believed when it submitted its findings that the excerpt from the McGovern deposition was admitted into evidence and thus relied on it in its findings.
See LIC PF 37.
Given TMIA's motion, Licensee has reviewed the relevant portions of the record.2/
Although we certainly can-not subscribe to TMIA's view that the Board clearly did not admit the fifteen-line excerpt from McGovern's deposition, it is by no means clear in retrospect that the Board did admit it.
Briefly, the circumstances are as follows.
-During its cross examination of Mr. Dieckamp, TMIA re-ferred him to a statement in a chronology dictated by TMI-2 op-erator Hugh McGovern on March 29, 1979.
TMIA suggested that the statement indicated that at the time of the pressure spike o
on March 28th, McGovern did not question that it indicated a 1/
TMIA correctly identified the portion of Licensee's find-ings which quote and rely on TMIA's September 26, 1984 deposition of H. McGovern.
See TMIA Motion, at 1.
2/
Licensee has reviewed in this regard: Tr. 28,672-82; Tr.
28,953-957; Tr. 29,075-79; Tr. 29,256-69; Tr. 29,435; Tr.
29,439-64; Tr. 29,535-59; Tr. 30,103-05. -
real increase in pressure.
See Tr. 28,682.
Licensee chal-lenged TMIA's characterization of the McGovern chronology, since McGovern had himself explained to TMIA during its ques-tioning of him in a deposition that TMIA was incorrectly reading his statement and that he did not at the time of the spike believe it was real.3/
Licensee was also concerned that in its questioning of Mr. Dieckamp TMIA also made no mention
.of a May 4, 1979 (pre-mailgram) Meted interview of McGovern, in which McGovern explained his belief that the spike was an elec-trical malfunction somehow connected with the loss of electri-cal buses.4/
Accordingly, in order to ensure a complete record, Licensee indicated that it intended to refer in pro-posed findings to the May 4, 1979 McGovern interview and pro-posed that the relevant portion of TMIA's McGovern deposition be stipulated into evidence.
Tr. 28,953-54.
TMIA indicated an initial unwillingness to accept Licensee's proposal, based on l
l what it characterized as " licensee's outright refusal to stipu-late any portion of any deposition."
Tr. 28,957.
The Board, l
however, intimated that it hoped the matter would be resolved not on the basis of a " quid pro quo," but rather on the basis l
of "what is necessary for a reliable and complete evidentiary l
l record."
Tr. 28,757.
l l
3/
See TMIA deposition of H. McGovern (Sept. 26, 1984) at 32, quoted in LIC PF 37.
4/
JME 1(c)(21) at 7-8, quoted in LIC PF 38. _
i Licensee subsequently reduced to writing and provided to the Board and Parties its notification and proposed stipula-tion.
Notification by Licensee of Intended Joint Mailgram Ex-hibit-References and Deposition Stipulations (Nov. 27, 1984).
'See Tr. 29,435.
At this juncture, TMIA argued that its deposi-tion _of McGovern was of little relevance (Tr. 29,450-451), but it did not reiterate a demand for a guid pro quo.5/
TMIA also l questioned the timeliness of Licensee's notice.
Tr. 29,456-57.
There followed intermingled arguments on the McGovern deposi-tion:with more general observations regarding timely _notifica-tion to the Board and other parties of an int.ention by one party to rely in its findings on portions of the-fourteen-volume Joint Mailgram-Exhibit 1(c).
Having heard considerable argument regarding both the McGovern deposition excerpt in particular and the general ques-tion of need for. timely notifications of an intention to rely on the Joint Mailgram exhibits, the Board ruled.
See Tr.
29,535-42.
With respect to the Notification of November 27th by Licensee and TMIA's arguments on timeliness, the Board stat-ed:
5/-
Indeed, in the interim, Licensee and TMIA had agreed to stipulate into evidence portions of TMIA's depositions of Walter Creitz and Richard Lentz.
Tr. 29,066-69, 29,257.
Licensee had also provided TMIA with other proposed depo-sition stipulations responsive to-the discussions of TMIA's requests during the_ November.13 Prehearing Confer-ence.
Tr. 29,256.
"Well, with this particular narrow thing, no problem.
If [ counsel to TMIA] feels that she was hurt by [ Licensee's] failure to do it on direct, or when Mr. Dieckamp was here, no problem.
He can come back, you know, for that purpose."
Tr. 29,542.
TMIA apparently accepted the Board's decision on timeliness, not seeking subsequently to have Mr. Dieckamp re-turn for additional questions.
With respect to Licensee's November 27th Notice and the approach to be utilized generally in the proceeding regarding notice to other parties, the Board stated:
So, that would be the bottom line, that when you have the other side of the story and it's relevant, even though it's rele-vant on another sub-issue, you sh:uld be allowed to follow through and have a com-plete record.
And it should be done at the earliest time.
So, in general, (Licensee's November 27, 1984] notification is accepted.
Now we have particular questions about it.
Do you have any questions?
Any questions where we are now?
Tr. 29, 5429/
In this context, it was Licensee's understanding when it submitted the findings that the Board had accepted not only the s/
TMIA points to the Board's use of the term " accepted" and distinguishes it from admitting evidence.
Use of the term
" accepted" is not dispositive.
The Board used " accepted" elsewhere in receiving evidence.
See, for example, Tr.
29,708 where the Board " accepted" portions of Lentz and Creitz depositions as their stipulated testimony. -
notification of Joint Mailgram Exhibit references, but also the pertinent portion of TMIA's deposition of McGovern.
We saw the Board's ruling as furtherance of its repeated concern for a complete and reliable record.7/
In retrospect, that under-standing could have been wrong.
Licensee did not at the time take up the Board's invitation to ask questions;' Licensee did not seek clarification.
As TMIA correctly points out, the McGovern deposition is not a part of the Joint Mailgram Exh.
1(c) and reliance on it by the Board would require both that it be admitted into evidence and that it be noticed by a party.
Notice is definitely not a problem here -- these fifteen lines of text were very specifically discussed with Licensee stating it intended to rely on them and the purpose of that reliance.
7/
The Board considered the fairness to the parties as well (Tr. 29,260):
The intent is that no item of evidence be received unless the significance of it is known at the time it is received, and the purpose for which it is being received is known.
And it doesn't matter how that comes about.
If the witness testifies about it, and gets his perspective through that channel, fine.
If he gets the per-spective through arguments of counsel, timely made, fine.
But again, it is the objective that we are trying to achieve, and that is no item of information be received in the record and then be later used for purposes that no one had any forewarning about.
It is simply a matter of due notice and opportunity to confront all items of evidence.
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i I
The issue as TMIA properly points out, is whether this deposi-tion excerpt was admitted.
Licensee believed that it was and relied on it.
In retrospect, it is not at all clear.
However, regardless of whether or not the Board intended to accept the McGovern deposition excerpt into evidence, Li-censee submits that no portion of its proposed findings should be stricken.
In the event the Board determines that the quoted portion of the McGovern deposition is not in evidence, the Board should simply ignore it.
The Commission's Rules of Prac-tice do not provide for a motion to strike proposed findings.
See 10 C.F.R.
S 2.754.
Compare 10 C.F.R.
S 2.762(g) (which ex-plicitly provides for a motion to strike an appellate brief that is not in compliance with the provisions of that section);
10 C.F.R.
S 2.757 (authorizing the presiding officer to strike argumentative, repetitious, cumulative or irrelevant evidence).
While the Board has authority to grant such a motion under the general power of the presiding officer to regulate the course of the hearing (10 C.F.R. 5 2.718), it is discretionary and need not be exercised here.
Cf. Texas Utilities Generating Co.
(Comanche Peak Steam Electric Station, Units 1 and 2),
LBP-83-55, 18 N.R.C.
415, 419 (1983) (ruling that extra-record material need not be struck since such material may be ignored by the Board in reaching its decision).
See also FRA S.P.A.
v.
Surg-O-Flex of America, Inc., 415 F.Supp. 421, 427 (S.D.N.Y.
1976)..
\\
The Appeal Board has suggested that a motion to strike may_
be'an appropriate vehicle to challenge a submission as insuffi-cient, improper, untimely, or unauthorized.
Tennessee Valley Authority-(Hartsville Nuclear Plant, Units lA, 2A, 1B and 2B),
ALAB-409, 5 N.R.C.
1391, 1396-97 (1977).
In Hartsville, the Appeal Board indicated parenthetically that a scandalous sub-mission was an example of an " improper" submission that might be struck.3/
Hartsville, supra, ALAB-409, 5 N.R.C.
at 1397.
See, also, Texas Utilities Generating Co, (Comanche Peak Steam
-Electric Station, Units 1 and 2), LBP-81-25, 14 N.R.C. 241-45 (1981) (striking motions and responses that contained ad hominem attacks and amounted to no more than bickering);
Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), LBP-81-34, 14 N.R.C.
637, 678 (1981) (strik-ing an affidavit as scurrilous).
Beyond this, NRC precedent provides little elucidation, and these cases have no applica-tion to the instant question.
Some guidance may be derived from the Federal Rules of Civil Procedure but this, too, suggests no need'to strike.
-Fed.
R. Civ. P.
12(f) provides for the striking from pleadings of " redundant, immaterial, inpertinent, or scandalous matter."
g/
An example of an " unauthorized" submission which was stricken is Cincinnati Gas & Electric Co. (William H.
Zimmer Nuclear Station), LBP-79-22, 10 N.R.C.
213, 218 n.5 (1979) where a licensing board struck a reply to a re-sponse to a motion as unauthorized by 10 C.F.R. 5 2.730(c).
4 However, in Federal practice, the application of this provision is limited:
Motions to strike alleged redundant, imma-terial, impertinent or scandalous matter are not favored.
Matter will not be stricken from a pleading unless it is clear that it can have no possible bearing upon the subject matter of the litigation.
If there is any doubt as to whether under any contingency the matter may raise an issue, the motion should be denied.
Even if the allegations are redundant or immaterial, they need not be stricken if their presence in the pleading cannot prejudice the ad-verse party.
-2A J. Moore, MOORE'S FEDERAL PRACTICE 1 12.21, AT 2429-31 (2D ED. 1984).
TMIA's motion is devoid of any argument that TMIA would be prejudiced by denial of its motion.
TMIA's second request is that footnote 21 of Licensee's Proposed Finding be stricken as unsupported by evidence.
TMIA Motion at 4.
This echos an earlier request by TMIA in its let-ter of February 4, 1985, which letter is attached without ref-erence to the instant TMIA Motion.
TMIA first states " Licensee suggests that the Dieckamp Mailgram issue is before this Board
'at the considerable urging of Congressman Udall and Dr. Henry Myers.'"
Id. at 4.
This characterization is inaccurate as Li-censee explained in response to TMIA's earlier letter on the same subject.
See Letter from E.
Blake to Licensing Board, dated February 24, 1985.
Licensee made no suggestion that Con-gressman Udall or Dr. Myers influenced either the Licensing or Appeal Board.
Rather, Licensee referred to the consideration l
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t.
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of the mailgram issue by the Special Inquiry Group and the NUREG-0760 investigations -- consideration that predates the remanded proceeding.
Licensee cited evidence in the record showing that the Dieckamp mailgram issue was examined by the Special Inquiry Group and then by the NUREG-0760 interviewers in response to requests by Congressman Udall and Dr. Myers.
In addition to the Rogovin/Frampton Memorandum responding to ques-tions by Congressman Udall (Joint Mailgram Exhibit 1(c)(107)),
Licensee referred to the following testimony of David Gamble during examination by TMIA:
Q.
In Mr. Stello's memorandum to Mr.
Moseley, which I believe is attached as Ex-hibit 2 to your testimony, it states that the date due for the completion of the in-vestigation was June 6th, 1980.
Do you know why that date was extended?
A.
I wasn't party to the exact decision to extend that date, but I know that there were, in addition to the initial meetings of the task group, which is reflected in Mr. Moseley's April 18, 1980 memorandum, there were other discussions concerning the scope of this investigation which appeared to add to what the task group felt they should cover in this investigation and my opinion at the time was that those meetings and additional tasks were the reason that this date was extended.
I am speaking here of meetings such as the one I attended with a representative of the staff of the Committee on Interior and Insular Affairs of the House of Representa-tives in which Mr. Stello personally accompanied the task group to this meeting and discussed with this staff member what items should be covered in this investigation.
! l I
i I
L
^
Q.
And did Mr. Stello give additional di-rections concerning expanding the scope of the investigation?
A.
Although I couldn't recall the exact directions, I recall conversations from Mr.
Stello in which he admonished the task group to ensure that this investigation was comprehensive and that this be an investi-gation to cover all aspects and not leave open areas of question.
Mr. Stello clearly wanted this investigation to be comprehen-sive and to include all these areas of con-cern.
Q.
All these areas of concern meaning the items that were identified in his memoran-dum which is Exhibit 2 to your testimony, or.were there other areas?
A.
I believe I interpreted his statements to include the areas of concern of the Congressional staff member as well.
Q.
We..,
what additional areas of concern did this Congressional staff member ex-press?
A.
I couldn't recall them all, but the one that specifically stands out in my mind and obviously is a concern to this Board is the Dieckamp mailgram issue which was a particular concern to that staff member and that was discussed at some length.
Tr. 30,660-62.
Q.
Now if I understand your testimony, Mr. Gamble, this memorandum did not include a delineation of the Dieckamp mailgram issue as one area of inquiry; is that cor-rect?
A.
I don't believe it did.
Q.
And it is your understanding that somehow through subsequent discussions be-tween the House Committee staffer and NRC personnel, including Mr. Stello, that the issue became delineated as one the IE task group was to address?
~
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=
A.
Right.
My sense of that is it kind of evolved as an issue through the discus-sions.
There were numerous discussions with this House staff member and this issue kind of grew out of those discussions.
Q.
Okay.
And who is the House staff member to whom you refer?
A.
Dr. Henry Myers.
Tr. 30,703(emphasis supplied).
Accordingly, Licensee submits that its finding is supported by evidence.
TMIA also takes issue with Licensee's observation that Dr.
Myers attended the proceeding.
TMIA in effect argues that the Board can neither comment on its own observations nor indicate who attended the hearings.
TMIA cites no support for such a position; Licensee has found no cases on point.
It bears not-ing however that observing Dr. Myers' attendance does not re-quire taking attendance of every member of the general public as TMIA suggests.
Dr. Myers is not just any member of the gen-eral public by virtue both of his position and his interest in the subject matter.
Finally, TMIA claims that footnote 21 is based in part on what it-characterizes as a misrepresentation of the Modified Stipulation of the Parties on Mailgram Evidence.
TMIA refers to Licensee's statement that "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."
TMIA Motion at 4.
TMIA.
ignores Licensee's use of the term " inter alia" and attacks this statement on the grounds that there were other elements of the stipulation.
The stipulation, however, speaks for itself and indicates that Licensee's withdrawal of the interrogatories was indeed part of the agreement.
Modified Stipulation of Par-ties on Mailgram Evidence, ff Tr. 27,896, at 9.
See also let-ter from E. Blake to the Board (February 14, 1985).
Accordingly, Licensee submits that its footnote 21 was ap-propriate and could be relied upon by the Board.
Surely it should not be stricken. Matter should be stricken from a pleading when it has no possible relation to the controversy.
Augustus v. Board of Public Instruction, 306 F.2d 862, 868 (5th Cir. 1962).
That is not the case here.
If the Board disagrees with Licensee's position, it may simply choose not to adopt Licensee's proposed finding.
It need not and should not strike footnote 21 from Licensee's proposed findings.
For the reasons stated above, Licensee submits that TMIA's Motion to Strike Portions of Licensee's Proposed Findings of Fact and Conclusions of Law on the Dieckamp Mailgram Issue should be denied in toto.
l Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE Y
Ernest L.
- Blake, Jr.,'
P.C.
David R.
Lewis l
l Counsel for Licensee l
l Dated: March 1, 1985 L _
r f
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Docket No. 50-289 SP METROPOLITAN EDISON COMPANY
)
(Restart)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Response to 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", dated March 1, 1985, were served on those persons on the attached Service List by deposit in the United States mail, postage prepaid this 1st day of March, 1985.
l? /NAk b; Ernest L.
Blake, Jr.,
P.C.
Counsel for Licensee DATED: March 1, 1985
c
(
t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289 SP
)
(Restart Remand on Management)
(Three Mile Island Nuclear
.)
Station, Unit No. 1)
)
1 SERVICE LIST Nunzio J. Palladino, Chairman Administrative Judge U.S. Nuclear Regulatory Commission John H. Buck Washington, D.C.
20555 Atomic Safety & Licensing Appeal Board Thomas M.
Roberts, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Administrative Judge James K. Asselstine, Commissioner Christine N. Kohl U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Appeal Washington, D.C.
20555 Board U.S. Nuclear Regulatory Commission Frederick Bernthal, Commissioner Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
~20555 Administrative Judge Ivan W.
Smith, Chairman Lando W.
Zeck, Jr., Commissioner Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Administrative Judge Administrative Judge Gary J. Edles, Chairman Sheldon J. Wolfe Atomic Safety & Licensing Appeal Atomic Safety & Licensing Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555
t Administrative Judge Mr. Henry D. Hukill Gustave A. Linenberger, Jr.
Vice President Atomic Safety & Licensing Board GPU Nuclear Corporation U.S. Nuclear Regulatory Commission P.O. Box 480 Washington, D.C.
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Mr. and Mrs. Norman Aamodt Office of the Secretary R.D.
5 U.S. Nuclear Regulatory Commission Coatesville, PA 19320 Washington, D.C.
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20555 Joanne Doroshow, Esquire Atomic Safety & Licensing Appeal The Cnristic Institute Board Panel 1324 North Capitol Street U.S. Nuclear Regulatory' Commission Washington, D.C.
20002 Washington, D.C.
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Gover ment Accountability
-Jack R.
Goldberg, Esq. (4)
Office of the Executive Legal
'555 Connecticut Avenue Washington, D.C.
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Harmon, Weiss & Jordan Thomas Y. Au, Esq.
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Suite 430 Office of Chief Counsel Washington, D.C.
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505 Executive House
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Harrisburg, PA 17120 Suite 1100 Washington, D.C.
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William T. Russell Hunton & Williams Deputy Director, Division 707 East Main Street of Human Factors Safety Office Of NRR P.O. Box 1535 l
Mail Stop AR5200 Richmond, VA 23212 U.S. NRC Washington, D.C.
20555 i
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