ML20137X455

Comments of GP Miller on NRC Questions & Concerns from 860214 Memorandum & Order Ruling on Petitions to Intervene. No Conflict of Interest in Connection W/Proceeding Exists

ML20137X455
Person / Time
Site:	Three Mile Island
Issue date:	03/03/1986
From:	Maupin M GENERAL PUBLIC UTILITIES CORP., HUNTON & WILLIAMS
To:	NRC
Shared Package
ML20137X460	List: ML20137X455 ML20137X463
References
CON-#186-307 LRP, NUDOCS 8603060266
Download: ML20137X455 (7)

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1 i O e March 3, 1986 DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 16 MM? -5 N0 :47 Before the Presiding Board 0FFICL ur ... .

00CKElic 3.'O h In the Matter of

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INQUIRY INTO THREE MILE ) Docket No. LRP ISLAND UNIT 2 LEAK RATE )

DATA FALSIFICATION )

COMMENTS OF GARY P. MILLER ON THE BOARD'S QUESTIONS AND CONCERNS On February 14, 1986, the Presiding Board (Board) issued a Memorandum and Order ruling on petitions to inter-vene and inviting comments from the parties on several questions and concerns. The preliminary comments of Gary 4

P. Miller (Mr. Miller) are set out below. These comments may be supplemented or refined at the prehearing conference scheduled for March 7, 1986.

1. Hearing schedule. -- Mr. Miller has no objection at this time either to a two-phase proceeding or to the tentative schedule set out in the Memorandum and Order.

i The Board's decision on other matters discussed in the Memo-randum and Order, however, may make the tentative schedule unrealistic. For example, if the procedure eventually adopted in the proceeding were to contemplate preparation of written testimony, exchange of the testimony, and 8603060266 860203 ~

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preparation and submission of questions by the parties, it is doubtful that the Board's tentative schedule for begin-ning Phase I (mid-April) could be met.

2. Location of hearing. -- Mr. Miller would prefer that, except in exceptional circumstances, the hearing be held in the Washington, D.C. area.

3. Witnesses and prefiled testimony. -- Taken literally,'the Memorandum and Order would seem to imply that the Board does not intend to call witnesses during Phase I other than parties, public agencies and their employees, and Mr. Stier. Presumably, there are a number of non-party individuals, such as former employees of Metropolitan Edison Company, whose testimony might be required in order to maximize the usefulness of Phase I and minimize the number of new witnesses who might have to appear during Phase II. Mr. Miller, however, has no speci-fic suggestions to make at this time with respect to the identity of witnesses to be heard in Phase I of the hear-ing. Mr. Miller uay have suggestions to make after the list of witnesses referred to in paragraph 5(c) of the Com-mission's Notice of Hearing has been compiled.

As far as the preferred order of witnesses is con-cerned, one issue in the proceeding involves the knowledge

- 0 of on-site management about the leak-rate difficulties encountered, and practices followed, by control room per-sonnel. Logic would seem to dictate that those diffi-culties and practices should be described by the control i

room personnel and understood by the Board before the testi-mony of management personnel, including Mr. Miller, is

, received.

t Mr. Miller has no objection to the proposal to require the submission of written testimony in advance of his appearance. The Board may want to reflect on whether it will require pre-filed testimony of individuals who are non-parties and may not be represented by counsel.

4. Documentary evidence. -- Mr. Miller, of course, 7

has not seen the NRR/OI Report referred to in the Board's Memorandum and order and has no view as to how it might be used. Mr. Miller does not object to the Board's consider-ing all or portions of the Stier Report and the Report of i

the GPU Assessment Panel. Mr. Miller doubts that the Assessment Panel Report will be of much value in answering the issues posed by the Commission in this-proceeding simply because, at least as to Miller, that Report was not based on any independent fact gathering. Indeed, it relied on the Stier Report findings for its factual underpinnings.

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The Stier Report, on the other hand, ought to be par-ticularly helpful to the Board. The Board should use this i

Report to familiarize itself generally with the subject

! matter of this proceeding, as a source of relevant docu-ments, to identify potential witnesses (in addition to the parties, Mr. Stier and the Staff) , and to prepare questions for witnesses.

5. Prior testimony. -- This is a broad and poten-tially complicated subject that can probably be best dealt with in discussions at the prehearing conference or, as the Board suggests, by negotiations among the parties. For now, Mr. Miller has only these observations. First, for a witness who appears at the hearing, it would not seem unreasonable to admit his prior testimony into evidence so long as (a) he is given an opportunity to make and explain any corrections in the earlier testimony and (b) other parties are permitted to have questions put to him about i his prior testimony. Second, insofar as a witness who appears at the hearing is concerned, Mr. Miller would oppose the use of the witness' prior testimony in proposed findings for the purpose of impeaching the witness unless the party proffering the proposed finding has attempted to 0

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O use the material for impeachment while the witness was on the stand.

6. Questions for witnesses. -- If the Board requires a witness to submit written testimony, it should require the other parties to submit written questions for that wit-ness to the Board within a prescribed period of time after service of the written testimony. Requiring service of proposed questions on other parties, of course, would be inconsistent with the usual practice in adjudicatory proceedings where cross-examination plans need not be shared with other parties.

Follow-up questions are more difficult to deal with; no solution is ideal. One approach would be to have the witness step down temporarily after testifying, have the Board and parties consult about follow-up, and recall the witness promptly for necessary follow-up. Another would be to save all follow-up for Phase II, but that would be likely to undermine continuity and cause excessive incon-venience, A combination of the two might be useful:

follow-up would be handled during Phase I as suggested above; parties would then be given an opportunity after completion of Phase I proceedings to review those

proceedings and recommend additional follow-up questions during Phase II.

7. Sequestration of witnesses. -- Mr. Miller has no position on this subject.

8. Role of counsel. -- Objections can be stated orally at the hearing and dealt with swiftly by the Board.

Thus, Mr. Miller knows of no reason why such objections should be categorically forbidden.

9. Role of the NRC Staff. -- Mr. Miller has no com-ment.

10. Ex parte communications. -- It is not clear just what the Board's reference in its Memorandum and Order to

, " limitations . . . generally stated in this paragraph" means. This subject should be explored at the prehearing conference.

11. Possible conflicts of interest. -- Thr. Board should know that, pursuant to applicable state 1<:w, expenses incurred by Mr. Miller in connection with this proceeding, including attorneys' fees, are being advanced.

to him by his employer, Metropolitan Edison Company and two of its sister companies. This arrangement is described in the attached Affidavit of Michael W. Maupin.

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Rule 1. 8 (f) of the ABA Model Rules of Professional Conduct (1984) states that A lawyer shall not accept compensation for repre-senting a client from one other than the client unless:

(1) the client consents after consultation; (2) there is no interference with the law-yer's independence of professional judgment or with the client-lawyer relationship; and

, (3) information relating to representation of a client is protected as required by Rule 1.6.

For the reasons set out in the Affidavit of Michael W.

Maupin, Mr. Miller believes that the requirements of Rule

1. 8 ( f) -- client consent, no interference and confiden-tiality -- are satisfied in this case and that no conflict of interest exists or will exist for his counsel in con-nection with this proceeding.

Respectfully submitted, GARY P. MILLER By h* 7 Michael W. Maupin,louns 1 Of Counsel Michael W. Maupin Maria C. Hensley HUNTON & WILLIAMS P.O. Box 1535 Richmond, Virginia 23212 Dated: March 3, 1986

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