ML20198S129
| ML20198S129 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 06/06/1986 |
| From: | Burns J ISHAM, LINCOLN & BEALE, PENNSYLVANIA ELECTRIC CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20198S111 | List: |
| References | |
| 86-519-02-SP, 86-519-2-SP, LRP, NUDOCS 8606100336 | |
| Download: ML20198S129 (6) | |
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UNITED STATES OF AMERICA 91 UUN 9198 V y(,
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In the Matter of
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Docket No. LRP INQUIRY INTO THREE MILE ISLAND
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ASLB No. 86-519-02 SP UNIT 2 LEAK RATE DATA FALSIFICATION)
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JOHN G. HERBEIN'S COMMENTS ON THE BOARD'S ORDER OF MAY 22, 1986 John G. Herbein, by his attorneys, submits the following comments in response to the Board's Order of May 22, 1986.
Specifically, Mr. Herbein submits comments on:
- 1) the NRR Report; 2) the GPUN proposal regarding use of prior statements; 3 )'
the Board's proposed schedule; and
- 4) the "no access" rule.
1.
The NRR Report j
Mr. Herbein objects to the conclusions of the NRR Report regarding " management."
At numerous points throughout the report, its authors conclude that " management's" standards were " lax and permissive," and that " supervisory and manage-ment personnel" created a poor attitude toward leak rate testing.
Nowhere in the report, however, is there any attempt by the authors to define " management."
The report i
thus stands as a blanket indictment of all employees, including Mr. Herbein, who could be construed as belonging
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w to " management," regardless of individual involvement.
The Board should disregard this indiscriminate attack on management personnel.
In its May 22, 1986 Order, the Board indicated it would attach little or no weight to conc 19sions of Mr. Stier and others regarding individual responsibility:
Indeed, we would give little or no weight to such conclusions themselves.
We will base our conclusions on the best available direct evidence about leak rare falsifica-tions.
However, we are interested in knowing what other investigators have concluded following extensive efforts on the responsibility issues as a means of checking the thoroughness and accuracy of our work.
(Order, at 6).
Accordingly, the NRR Report's conclusions regarding management are entitled to no weight.
Unlike the Stier report, the NRR Report makes no attempt to review individual involvement within the managerial structure and reach specific, supportable conclusions.
While " management" presumably could include any and all personnel who supervise others up to the highest levels of the utility, the report makes no distinction among the managers, and it appears that no one above the level of shift supervisor was inter-viewed.
Thus, the report's broad, undeveloped and undefined condemnation of " management" cannot serve to aid the Board in checking " thoroughness and accuracy."
Therefore, its conclusions with respect to " management" should be given absolutely no weight.
By this objection, Mr. Herbein is not attempting to defend any and all actions by Metropolitan Edison " manage-ment" at TMI-2.
He simply points out that fairness requires that individuals not be found culpable because they belong to some loosely defined group.
Conclusions regarding culpa-bility should be specific, name names, and be supported by the evidence.
Beyond this objection, Mr. Herbein has no further comment on the NRR Report.
2.
The GPUN Proposal Re Prior Statements Mr. Herbein has no objection to GPUN's proposal regarding the use of prior statements.
3.
The Board's Proposed Schedule Mr. Herbein is disappointed by the Board's decision to delay initiation of the hearings until September.
Mr.
Herbein's counsel, Mr. Burns, has a major trial scheduled
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for September 22, 1986.
Mr. Herbein requests, therefore, l
l that the Board either delay start of the proceedings until early to mid-October, or start the hearings in early September and recess from September 15 to early to mid-October.
l The Board earlier scheduled the hearings to begin in the spring of 1986:
first in April (Order, February 14, l
1986), and then in May (Order, April 3, 1986).
Mr. Burns, l
in reliance on the Board's proposed schedules, agreed to a trial date of September 22, 1986 rather than the spring or l
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early summer.
The trial date was firmly set by agreement among the parties because witnesses will be travelling to Chicago from London and Singapore.
It would be difficult, if not impossible, to change the trial date at this time.
The problem is exacerbated by the Board's decision to modify its Phase I-II bifurcation, and open technical witnesses to questions involving individual responsibility.
Mr. Burns was not planning to become as actively involved in the technical phase of the hearings as in the individual involvement phase.
Now that the distinction between the phases no longer exists, Mr. Burns must play a much more active role in the initial hearings.
Mr. Herbein believes Mr. Burns' participation in the hearings is critical to his representation.
Mr. Burns has represented Mr. Herbein for nearly five years on TMI related matters.
Like this pro-ceeding, the September trial is complex and cannot be turned over to a lesser experienced colleague.
Accordingly, Mr.
i Herbein humbly requests that some accommodation be made in scheduling the hearings.
4.
The "No Access" Rule Mr. Herbein also is concerned by the Board's decision to extend the "no access" rule to witnesses testi-l fying as to individual responsibility.
In the May 22, 1986 Order, the Board stated that "the Numerous Employees are I
alone in their objection" to the rule.
This is an apparent I
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oversight of the Board's statements at the April 24, 1986 hearing in response to Mr. Herbein's objection to the "no access" rule.
At the April 24, 1986 hearing, Mr. Burns indicated that Mr. Herbein had no objection to the rule as it applied to the technical issues, but certainly would have trouble with such a rule applying to witnesses testifying on culpa-bility issues.
(Tr. 4/24/86 at 161).
Judge Kelley indicated, in response to Mr. Burns' remarks, that Mr. Stier's testimony in Phase I would only be about technical issues, and that the question of whether the "no access" rule would apply during Phase II would be decided at a later date.
(Tr.
4/24/86 at 161-62).
Under the Board's present plan, however, Phase I witnesses, such as Mr. Stier, will be open to questions concerning individual responsibility (Order, May 22, 1986 at 4).
The Board has thus effectively decided to extend the "no access" rule to Phase II testimony over the objection of Mr. Herbein.
Mr. Herbein respectfully requests that, in the interest of fairness, the Board reconsider its decision and permit parties to communicate with witnesses about questions of individual responsibility.
The individual responsibility issues will involve some subjective interpretation and opinion.
Since it is a cardinal rule of lawyering that one never ask a question one does not know the answer to, attorneys
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should be allowed to discuss questions relating to individual responsibility with witnesses, including the experts, prior to their appearance before the Board.
Surely a workable, non-harassing witness contact procedure could be devised.
Respectfully submitted, JOHN G.
HERBEIN
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On'e of his attorneys James B.
Burns Christopher W.
Flynn ISH1L"4, LINCOLN & BEALE Three First National Plaza Suite 5200 Chicago, Illinois 60602 (312) 558-7500 t
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