ML20138B212
| ML20138B212 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 03/14/1986 |
| From: | Aamodt M AAMODTS, AFFILIATION NOT ASSIGNED, COMMITTEE ON HEALTH ASPECTS & MANAGEMENT OF NUCLEAR |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20138B219 | List: |
| References | |
| CON-#186-447 86-519-02-SP, 86-519-2-SP, LRP, NUDOCS 8603200303 | |
| Download: ML20138B212 (12) | |
Text
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e UNITED STATES OF A$ ERICA 00CKETED h[
NUCLEAR REGULATORY COMMISSI,N USNRC 0
Before the Presiding Board:
'86 M.4R 18 P1 :26 James L.
Kc I l cy, Chairman Glenn O.
Bright Jerry R.
Kline
.-,r E.
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In the Matter of
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Docket No. LRP INQUIRY INTO TilREE MILE ISLAND UNIT 2
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ASLDP No. 86-519-02 SP 3
LEAK RATE DATA FALSIFICATION
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March 14, 1986 lbf MOTION FOR DISMISSAL OF EMPLOYEES ATTORNEYS Marjoric M.
Aamodt Norman O.
Aamodt COMMITTEE ON llEALTil ASPECTS & MANAGEMENT OF NUCLEAR POWER Box 652, Lake Placid, N.Y.
12946 Tel. 518-523-2370 9603200303 860314 PDR ADOCK 05000320 G
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At the'beginning of the pre-hearing conference of
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March 7, 1986, the chairman of the Board, Judge Kelley, stated that the Board found acceptable the attorneys' i
responses of March 3, 1986 (1) to the Board's Memorandum and Order of February 14, 1986 which requested information concerning possible conflicts of interes't in these attorneys' participation in the instant inquiry.
The Board had asked the attorneys to identify who would pay their fees and how they could represent a number of employees who may have conflicting interests.
At the time of the pre-hearing conference, the Aamodts had not yet received the attorneys' responses.
Hence, the Board invited the Aamodts.to submit written comments.
The Aamodts' comments are submitted herewith.
(1)
The law firms, LeBOEUF, LAMB, LEIBY & MacRAE of 1333 New Hampshire Avenue, N.W.,
Suite 1100, Washington D.C.,
20036 and KILLIAN & GEPHART, 216-218 Pine Street, Box 816, Harrisburg, PA 17108, filed RESPONSE OF EMPLOYEES TO MEMORANDUM AND ORDER OF FEBRUARY 14, 1986, signed by Harry H. Voigt.
The firm, ISHAM, LINCOLN & BEALE, 120 Connecticut Avenue, N.W.,
Suite 840, Washington D.C.
20036, filed a letter to the Board signed by James B.
Burns.
The firm,. Hunton & Williams, 2000 Pennsylvania
- Street, P.O.
Box 1535, Richmond Virginia 23212, filed COMMENTS OF GARY P. MILLER ON THE BOARD'S QUESTIONS AND CONCERNS, signed by Gary P.
Miller and AFFIDAVIT OF MICHAEL W.
MAUPIN, signed by same.
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The Aamodts find representation of twenty-six employees by two cooperating firms (2) to be unacceptable.
Despite the attorneys' soif serving assurances (see pp.10-15, It e s p o n s e, Voigt), they, ipso fact.0, cannot represent all clients where anyone. individual's testimony may inculpato anotty_cr client, and may already have.
By selecting attorneys and grouping substantial numbers of employees, Met Ed, its subsidiaries, and
- parent. corporation are in a unique position to protect their own interests in the instant inquiry.
For this reason, this arrangement denies the employees any representation.
See p.8, para.1,2, infra.
The Board recognized the peril of multiple represent-ation in its Memorandum and Order of February 14, 1986, writing (pp.10-11):
"Given the purpose of this proceeding to determine the individual responsibility for alleged wrongful acts, we understand that these twenty-six petitioners (and now parties) are here to protect their separate interest, and not as a group... It appears to us that multiple representation of the employee-parties by a group of attorneys acting jointly may give rise to conflicts of interest...we question whether a group of attorneys acting jointly will be able to give undivided loyalty and vigorous representation to such potentially diverse interests."
(2) 1.cIll(OUP et a l. and K II,I,l AN & GEPilAltT.
i The Board cannot now turn away from this issue
't on the basis of the responses of the attorneys.
See discussion infra (pp.4-8).
Further, the Aamodts find the payments of the attorneys' fees by Metropolitan Edison Company (~ Met Ed' ), its subsidiary, General Public Utilities Nuclear (GPUN), unnamed " sister companies" of Met Edt-or General Public Utilities (GPU), the parent corporation, as admitted by the attorneys (3),to~be unacceptable.
Indisputably, money is a controlling influence.
The Board so acknowledged in its Memorandum and Order (February 14, 1986, pp.10-13):
"...we might, depending upon the details of the fee arrangement, be concerned if those fees were being paid by GPUN or any other f
entity having an interest in the outcome of this inquiry.
In the circumstances, it is obvious that the interest of GPUN and the employees might come into conflict."
(Emphasis added.)
Since GPU and its subsidiaries are paying the attorneys' fees of the employees and since the Board has recognized the conflict of interests created, the Board has made an error by indicating at the pre-hearing conference that the Board is now satisfied with this arrangement.
See Transcript, Statement of Chairman.
(3)
Voigt Response at Attachment 3; Maupin Affidavit pp.1,2; Burns letter in entirety.
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The Board needs to set aside the attorneys' self-serving assurances and look at the facts.
Met Ed, its subsidiaries and GPU selected, suggested, facilitated, and paid (since 1980) the attorneys who claim they represent the employees. See Voigt Response at Attachment 2, Maupin Af fidavit at pp.1,2; Burns letter.
As is clear in the case of the two firms representing the numerous employees, the companies enticed the employees to accept this counsel by only agreeing to indeminification prior to the final disposition of the hearing if these two
, firms were used.
See Voigt Response, Attachment 2.
In fact, the company generously allowed these firms to submit unsubstantiated billing!
See Id., Attachment 3,
p.3, Article 15.
4.
Hereby, the GPU companies have created a vise by which they have attempted to keep the employees' testimony within their grip.
With an array of competent legal firms ready and waiting for posh retainers, the GPU companies selected firms with which they had prior connections and which had other nucicar accounts.
One attorney, Maupin, admitted the other financial relationships his firm had with the GPU family of companies.
Affidavit pp.3,4.
Although the other three firms did not report any connections, their failure to provide any inform-ation, in view of the Board's interest, is tanta-mount to an admission of other financial conflicts.
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Other evidence exists. as well to show that the attorneys are representing the company.
The U.S.
Attorney in the case U.S.A.
- v. Met Ed, David Dart Queen, was well-acquainted with the attorneys who are representing the employees in the instant inquiry.
These attorneys represented the employees in the criminal proceeding.
There was an extensive investigation lasting from March until November of 1983.
From Queen's statement before the court on February 28/29, 1984, it is clear that Queen had little confidence that these attorneys represented the best 1nterests of the employees.
Queen stated that, although
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he had evidence to proceed against individuals, he feared that "a handful" of employees would be made 3
" scapegoat (s)" of the company.
(4)
If Queen believed that the employees would be made scapegoats of the company, then Queen believed that the attorneys were either not representing the best interests of the employees or were incompetent.
Clearly, the attorneys of LeBEOUF et al. and KILLIAN
& CEPHART are competent.
llence, Queen believed that these attorneys were not vigorously representing the best interests of the employees.
(4) p.68, Transcript of Proceedings Change of Plea and Sentencing, February 28 and 29,1984, U.S.A. v. Met Ed, Criminal No. 83-00188.
This page is provided herewith as Attachment 1.
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i That these attorneys were representing the best interests of the company is self-evident, a conclusion supported by additional evidence from the Department of Justice proceeding.
The attorneys threatened the employees that they would withdraw their services if the government provided immunity to the employees.
See Order, Judge S.
- Rambo, April 8, 1981.
(5)
The judge' characterized the attorneys' position as a " potential conflict".
Id.
The government's offer of immunity would c1carly have been in the employees' best interests.
The attorneys' threat to abandon the employees if immunity was provided draws the sharpest line between the attorneys' interests and the employees' interests.
(6) 1 At this present critical juncture for the employees, a provision of immunity from prior testimony would cicarly be in the best interests of the employees.
Their attorneys admit that, "The Employees have serious reservations about the use of prior statements in this' proceeding."
Voigt Response, pp.6,7.
Since the attorneys represented the employees when they provided their prior testimony (7), the attorneys (S) Attachment 1, Voigt Response.
(6) In view of Met Ed's promise of indemnification, prior to resolution of the hearing, only where these attorneys were retained, the attorneys' threat had " teeth".
(7) Ti, - Joigt Response (pp.10-11) described the extent of representation 7
as "in connection with investigationn by three Federal Grand Juries, in four separate Federal court proceedings, in two provinus licensing i
board hearings, and in several different investigations by NRC.
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bear responsibility for the employees' dilemma.
It is, therefore, peculiar, if the attorneys represent the interests of the emplo'yees, that they are not seeking the the clear remedy of immunity from prior testimony.
The attorneys have not requested immunity for the employees.
The attorneys simply request the opportunity
.to tailor the employees' prior testimony.
Further, the attorneys' claims that the GPU companies make no effort to influence the employees' testimony are totally unfounded or downright deceitful.
These
' attorneys appeared in the shadow of another licensing board hearing, that on cheating of operators on NRC examinations, where GPUN attorneys coached the operators appearing as witnesses and misrepresented this interference to the judge.
See Affidavit of Marjorie M.
- Aamodt, provided as Attachment 2 herewith.
The Board is compelled to accept the best evidence concerning the attorneys' conflicts of interest in the instant inquiry.
The attorneys' self-serving claims stand like threads against the whole cloth of evidence presented above.
' These conflicts are of unique importance to the instant inquiry since the company (Met Ed) has been indicted and found guilty (8) for the very acts about which the employees' culpability will now be decided.
Some of the employees to be investigated are executives in the indicted company or sister companies.
Others are intermediate supervisors, and others are operators or auxiliary operators.
Some of these employees are more expendable to the company than are others.
The 4
executives are in the best position to have their interests placed before those of other employees with the companies
'in control of the attorneys.
The " cheating hearing" provides a clear example of how GPU attorneys coached operators to testify to protect the company and how the interests of some of these operators were injured as a result.
Operators and instructors were held accountable for testimony that was inconsistent with the other evidence.
The operators, caught with numerous identical answers, were held accountable for " cheating", because they did not reveal the way the training department administered tests:
with books open, hand-outs available, and discussion among the operators and the instructors.
The fiasco of the cheating hearing, with its evident i
injustices, does not need to be repeated here.
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(8)
Met Ed plead guilty to one charge and nole contendre to the others.
-9 The Board must act promptly to address the best evidence.
As things stand, GPU and.its subsidiaries have the controlling interest in the instant inquiry.
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If the Board allows that control to continue, neither the employees nor the public will experience justice.
The public and this Board should not be hoodwinked by another meaningless NRC-sponsored investigation. (9)
(9) The record of malfeasance in NRC investigations is long. The n
U.S. Attorney described the NRC investigation of the leak rate report falsifications as " utter poppycock", p.63 Transcript, Feb. 27/28, 1984; the NRC's withholding of its verification of the leak rate report falsifications is a matter now in DOJ as is a complaint of two former NRC investigators that the NRC deleted important information from its report of the accident. The NRC's chief investigators of the cheating on tests complained because the director would not enforce NRC's right to exclude GPU management from interviews of the operators.
The NRC has refused to investigate health effects 100's of TMI area residents experienced during the initial days of the TMI accident, although the director of reactor regulation. acknowledged that the
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health effects were classical high-dose radiation effects.
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TilEltEFORE, -
the Aamodts humbly request this honorabic Board to order the attorneys for the employees dismissed, and the employees advised to seek their own attorneys.
Guarantees of immunity from prior testimony should be provided to all non-supervisory employees.
Ilespectfully submitted, ha LMQ itsy
/
Marjorie M. Aamodt Committee on llealth Aspects & Management of Nuc1 car Power Box 652, Lake Placid, N.Y.
12946 Tel. 518-523-2370
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Attachadnt 1
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funds to prosecute and convict.the company.
It also I thin!: -
2 it is self-evident that it provides a punishuent to 3
!!etropolitan Edison through af ter ta:: paynents that vould not 4
have been there had the Court ~only had at its disposal the 5
$85,000.00 in fines.
6 Taking all of that collectively, it is 7
-self-evident that the company is paying nore than-it could 8
have paid under the terns and conditions of.the original
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9 indictment, and I would hope. serves as a substantial 10 deterrent to other nuclear licensees..
11 The conpany was obviously indicted for a reason.
12 It was to serve notice on this and all.other licensees that 13 you can't sluff off the responsibility for corporate activity,
{j 14 on a handful of scapegoat employes.
,15 Ue could have indicted a number of the people l'G whose titles were mentioned in my statement of facts, and ue I 17 would have obviously convicted them.
It would not have l
18 served the public interest because every other licensee l
around the country.would be on notice that th$2 United States 19 20 of America is glad to take a handful of control room i
21 operators and throw them to the dogs and let the company go i
22 unscathed.
23 I think under all of the considerations, the kind 24 of penalty that we have been able to c:: tract is the best 25 available to us and ultimately in the best public's interest a
VICK1 L. FOX. OFFICI AL COURT REPORTER. 801 983. FEDERAL BUILDING. H AppgggypG PA 17108 I
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