ML20206J366
| ML20206J366 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 06/24/1986 |
| From: | Bright G, Kelley J, Kline J Atomic Safety and Licensing Board Panel |
| To: | GENERAL PUBLIC UTILITIES CORP. |
| References | |
| CON-#286-712 86-519-02-SP, 86-519-2-SP, LRP, NUDOCS 8606270137 | |
| Download: ML20206J366 (11) | |
Text
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UNITED STATES OF AMERICA
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g NUCLEAR REGULATORY COMISSION '4 reg Before the Presiding Board: (
JUN 2 51986a-8 C 3 8
James L. Kelley, Chairman aua ff Glenn 0. Bright b.
'*C Jerry R. Kline In the Matter of Docket No. LRP ASLBP No. 86-519-02 SP INQUIRY INTO THREE MILE ISLAND UNIT 2 LEAK RATE DATA FALSIFICATION June 24, 1986
)
SERVED g 61986 MEMORANDUM AND ORDER l
(Concerning Responses to Memorandum and Order of May 22,1986)
All parties filed responses to our Memorandum and Order of May 22, 1986, includirig various coments and objections. Two parties GPUN and Mr. Miller, filed coments on the other parties' responses. The Board's rulings (or coments, as appropriate) on those responses and coments follow.
i 1.
Responses of Employees 1
a.
Objections to NRR Report.
The Employees "make precisely the same objections to the NRR Report and to Mr. Russell as a witness" which they made to Mr. Stier and his Report.
We reject those objections and make the same ruling.
The Employees also complain that our ruling "will needlessly complicate the hearing process" because there are 8606270137 860624
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,4 "potentially significant differences" among the "other investigators" --
i.e.,
Stier, Russell and Christopher.
But this point argues more i
strongly for including the conclusions of the investigators than for excluding them.
It is precisely such "significant differences" among presumably competent investigators that this Board should focus on.
We question whether that will create much more work for the parties j
but, if it does, that is a legitimate cost of the process.
i b.
Proposed Schedule. The Employees suggest starting the hearing 1
on September 9 rather than September 3.
Similarly, the Aamodts suggest i
September 8, citing a prior consnitment. The schedule is amended so that the hearing will commence on Monday, September 8.
The exact time and place will be designated in a later Order.
c.
Additional Witnesses.
The Board is willing to reconsider the Employees' requests for proposed witnesses
- Chung, Wenzinger, Bettenhausen and Keimig ininediately following the testimony of the other technical witnesses, d.
Additional Documents.
The E:nployees' argument appears to be over-broad.
They are to state exactly which portions of OI Report 1-23-011 and NUREG-0680 Supp. No. 5 relate to TMI-1 leak rate testing l
and which they wish admitted. The Employees are also to respond to Mr.
l Miller's filing of June 16 on this subject.
Such response shall be filed by July 14, 1986.
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_ _ _ _ _ _ _ _ _. _ _ ~, _ - -. _
O
. e.
Initial Questions for Witnesses.
Our statement that
" questions going primarily to the weight or credibility of a witness' testimony" may not be previously submitted to the witness -- apparently has been read more broadly by the Employees than we intended.
Perhaps the phrase " questions in the nature of voir dire" conveys our intention more clearly. For example, "What did they teach you in law school about leak rates?" is a typical voir dire question that would not be submitted in advance to the witness.
By contrast, "Do you agree with witness X's analysis of leak rate test 100?" is a technical question, the answer to which would benefit from advance submission to the witness for whom it is intended.
That would be done even if the intent of the questioner were to undercut the weight or credibility of the witness' testimony.
We trust that the foregoing provides helpful clarification, as requested by GPUN. We add that the Board expects to exercise very broad discretion in this area.
We also expect that a greater proportion of questions will be withheld on issues of individual responsibility than on technical issues.
f.
Access to Expert Witnesses.
The Employees continue their complaints about the Board's "no access" rule with respect to expert witnesses Stier and Rockwell, and their associates. The reasons for our ruling were sketched in our Memorandum and'0rder of April 3,1986.
We add here, at the risk of belaboring the obvious, that our "no access" rule is designed not only to promote the fairness and thoroughness of the proceeding, but also the appearance of fairness and thoroughness.
f 1
i
. In the latter regard, that every lawyer in this proceeding is being paid by GPUN or Met Ed, companies which have an obvious stake in the outcome, does little to promote the appearance of fairness and thoroughness in the minds of an interested and skeptical public.
As we will be explaining more fully (see 1 2.a.
below), the Board accepts that situation because we think it necessary and justified under the circumstances.
But we see no reason to exacerbate appearance problems by allowing key expert witness like Stier and Rockwell to be paid (and access to them controlled) by GPUN.
On the contrary, we think it appropriate that the Board step in, as we have, and make them Board witnesses for all purposes in this proceeding.
The Employees have given no persuasive reason why they need informal access to these witnesses.
The experts' work is finished and in the public domain.
If the Employees wish to " pursue either a stipulation or an informal agreement among the experts to limit the issues",
they can accomplish essentially the same thing through questions on the record.
Should that take a little longer than the informal approaches they envision, the Board is willing to take that time in the interest of public, on-the-record resolution of the issues.
The request for reconsideration of our "no access" ruling is denied.
We would be willing to consider a specific proposal for a meeting or meetings of Employees' counsel with Stier and/or Rockwell and/or their technical associates in which all parties would be ensured a fair opportunity to participate.
Any such proposal should be
m-,
, submitted first to the other parties for approval or comment, and then to the ' 'rd.
2.
Responses of the Aamodts a.
Motion to Dismiss Attorneys.
The Aamodts suggest that their pending motion to dismiss attorneys :aust be decided before a schedule can be set. That would be true if we proposed to grant that motion, but we do not.
The Aamodts' motion to dismiss attorneys is denied.
The reasons for this ruling will be supplied at the Board's earliest 1
convenience.
b.
Scheduling.
The Aamodts are alone in suggesting that the entire schedule needs to be postponed by three weeks to correspond to the delay in release of the 01 Report.
We do not believe that that delay has any significant impact on the latter half of the schedule.
However, as noted above, we are post'poning the start of hearing date by one week.
The statements at the top of p. 3 of the Aamodts' response reflect a misunderstanding.
" Phase I" will include individual responsibility as well as technical issues. See Memoranda and Orders of February 14, 1986 at 5 and May 22, 1986 at 3-5.
i t
5 c.
Definition of " Valid" The definition attributed to GPU was first proposed by the Board as a mechanism for management' efficiency when the Board was still contemplating a bifurcated Phase I hearing in which the first part would address only technical matters and not individual responsibility.
That proposed procedure has now been abandoned by the Board in favor of considering both kinds of issues together in Phase 1.
Under the present procedure we see no management advantage in conducting a prior technically based winnowing of the full list of. leak rate tests.
Accordingly, there is no need to adopt in advance a definition of
" validity" that would establish boundaries between technical and responsibility issues and we do not do so, d.
Motion for Return of Sections of NRR Report.
The sections of the Report in question are generally described in the pleadings of the Employees and the Staff.
These descriptions appear to be basically accurate and should fonn a sufficient basis for the other parties' comments on the legal question involved.
For purposes of determining whether a Rule 6(e) F.R. Crim. Proc. violation has occurred, it should not be necessary to have the exact text of the sections in question.
The motion for their return is denied.
e.
Aamodts' Comments Concerning Mr. Stier and Staff Witnesses.
Suffice it to say that the Board wishes to hear from both Mr. Stier and the Staff experts on leak rate questions.
GPUN's letter of May 29 had
& been anticipated in the April 24, 1986 prehearing conference (Tr.
196-97) and was perfectly appropriate under the circumstances.
In our Order of May 30, 1986, we merely asked GPUN to refrain from hiring Stier until the Board had had an opportunity to hire Stier for the same purpose. Order, pp. 3, 8.,
3.
Response of Gary Miller a.
The NRR Report.
Mr. Miller (and Mr. Herbein, see below) object to negative conclusions about " management" and " management personnel," noting that this proceeding is concerned with issues of individual responsibility.
He asks that those ambiguous references be stricken.
This objection is valid.
However, it seems neither practical nor necessary to physically carve these scattered references out of the text of the Report.
Instead, the Board will disregard all undifferentiated references to " management" which might otherwise imply negative conclusions about any particular individual.
b.
Proposed Schedule.
Mr.
Miller accepts the schedule as proposed.
c.
"No Access". Mr. Miller joins Mr. Herbein's request that the "no access" rule not be applied to Mr. Stier with respect to his knowledge of individual responsibility. See p. 8, below.
3 4.
Response of John Herbein, a.
The NRR Report.
Mr. Herbein, like Mr. Miller, objects to undifferentiated negative references to " management." We have sustained that objection, as noted a,bove, b.
Proposed Schedule. Because of a previous trial comitment of his Counsel, Mr. Burns, in late September, Mr. Herbein asks us to delay the start of the hearing until early to mid-October or to recess from mid-September to mid-October.
The request is denied.
This proceeding is already late in getting to hearing.
If several parties had problems with our proposed schedule, we might be forced to consider a later starting time.
Since any starting time is likely to be inconvenient for someone, our inclination is to proceed when only one party objects and that party need not be prejudiced by the decision to proceed.
Mr. Herbein could be scheduled to appear as a witness toward the end of Phase I (probably some time in October), or not until Phase II. Mr. Burns should be available at those times. We believe that some other attorney from Mr. Burns' firm could appear effectively in his stead when Mr. Burns is not available, c.
"No Access" and Individual Responsibility Issues.
Mr.
Herbein, joined by Mr. Miller, objects to the application of the "no access" rule to Mr. Stier's testimony on individual responsibility
5 issues. The point was adverted to in the prehearing conference of April 24 (Tr. 160-62), but not fully discussed. The Board was not focusing on that point in its May 22 Order.
Thus, the question is open.
On the face of it, the Board sees little reason to differentiate between technical and individual, responsibility issues for access purposes.
Although Messrs. ierbein and Miller have raised an objection, neither has offered a detailed statement of grounds.
If they or any other party wish to do so. such grounds are to be filed by July 14, 1986.
Such grounds should include a " workable, non-harassing witness contact procedure" if, as Mr. Burns suggests, one can be devised.
5.
Response of GPUN NRR Report Supporting Documents.
GPUN states that certain documents referenced in the NRR Report were not served with it and were not appropriately redacted.
Mr. Miller raises a similar point in his response.
The Board asked the Staff to review these portions of these responses and advise the Board of the results.
The Staff advises as follows:
(1) Some documents referenced in the NRR Report accompany the 01 Report. The Staff is developing a matrix which correlates references and document locations.
The Staff will provide this matrix to the parties.
l
J (2) The transcript of an interview with M. V.
Cooper was expected to accompany the 01 Report, but it did not.
The Staff will also supply that interview to the parties.
(3) Certain Staff summaries of leak rate tests, referred to in the NRR Report as Enclosure 1, Attachment 5, Part A, have not been served on the parties.
The Staff advises that the substance of these documents is included in the "Chung" Report and has been superseded by the technical evaluation in the NRR Report. Any party wishing to review these docuinents may request copies from Staff Counsel.
Should the foregoing leave questions in the mind of any party, we ask that they discuss them first with Staff Counsel.
01 Report -- Further Comments or Objections.
In our Order of June 6,1986, we neglected to include a deadline by which parties could file comments or objections to the objections or proposals of other parties due on June 23, 1986 concerning the 01 Report.
That deadline will be July 3, 1986. The Board expects to make any necessary rulings on the OI Report by July 11, 1986 Prior Statements and Rule 6(e) Motion.
The Parties' comments 1
I included consideration of GPUN's proposal of May 9, 1986 concerning prior statements. The Board will address that proposal in the near i
i
J future.
Similarly, the pending motion alleging a violation of Fed. L.
Crim Proc. Rule 6(c) will be addressed in due course.
THE PRESIDING BOARD wx Jt es L. Kelley, Chairgen id ADMINISTRATIVE JUDGE hb Glenn 0. Bright
(/
ADMINISTRATIVE JUDGE i fAm gerry R./Klille' ADMINISTRATIVE JUDGE June 24, 1986, Bethesda, Maryland.
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