ML20207E574

Response Opposing Aamodt 860630 Response to Ofc of Investigations Rept & Motion for Summary Disposition.Aamodt Motion Would Circumvent Purpose & Scope of Proceeding. Certificate of Svc Encl

ML20207E574
Person / Time
Site:	Three Mile Island
Issue date:	07/18/1986
From:	Voigt H GENERAL PUBLIC UTILITIES CORP., LEBOEUF, LAMB, LEIBY & MACRAE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20207E553	List: ML20207E546 ML20207E574
References
LRP, NUDOCS 8607220374
Download: ML20207E574 (8)

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UNITED STATES OF AMERICA y((0 NUCLEAR REGULATORY COMMISSION BEFORE THE PRESIDING BOARD 21pll}

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In the Matter of )

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

FALSIFICATION )

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RESPONSE OF EMPLOYEES TO AAMODT RESPONSE TO OI REPORT AND MOTION FOR

SUMMARY

DISPOSITION With an apparent disregard for the Commission order and Notice of Hearing instituting this proceeding, CLI-85-18, 22 N.R.C. 877 (19 8 5) ("Orde r ") , and for the fundamental dictates of fairness that should govern this inauiry, the Aamodts, by the Aamodt Response to OI Report and Motion for Summary Disposition

("Aamodt Motion") filed on June 30, 1986, have moved the Presiding Board "to summarily dispose of the issue of the involvement of the operators at TMI-2 in the falsification of leak rate tests and reports by finding that all operators were 1 Aamodt i involved in/ aware of the leak rate falsifications."

Motion at 5. This motion is intended to " allow the Board and

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parties to focus on the investigation of supervisors and i

managers." Id. at 3. However, as discussed below, the Aamodt Motion would circumvent the purpose and scope of this proceeding, as explicitly set forth in the Order, by summarily D CK O gO hhR G

determining material f acts in dispute, denying the Employees their right to a hearing on the allegations of their misconduct, and addressing issues not authorized by the Order.

Thus, the motion should be denied.

Material Facts in Dispute The purpose of this proceeding is to develop the facts surrounding the alleged falsification of TMI-2 leak rate data "in sufficient detail to determine the involvement of any individual who may now work, or in the future work, at a nuclear facility licensed by the Commission." 22 N.R.C. at 880. In an extremely presumptuous manner, the Aamodt Motion purports already to have developed these facts in sufficient detail to determine that all of the operators were involved in the alleged falsification. The findings of fact set forth in and supporting the motion are ostensibly based on evidence presented in the OI and NRR Reports, yet as the Aamodt Motion acknowledges, the OI Report determined that six operators were not involved in the alleged falsification of TMI-2 leak rate data. Aamodt Motion at 1. In addition, even if one accepts the conclusions of OI concerning other individual operators -

which we do not -- there remain substantial questions concerning the purpose and intent of each individual. Thus, on the face of the motion, there are material facts in dispute.

In any event, the Presiding Board cannot adopt any findings of fact until it has invited all of the parties to this

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L proceeding to file their own proposed findings of fact and conclusions of law after the completion of the hearing. 22 N.R.C. at 883. At that time, the Employees will file proposed findings of fact, which will be supported by the record, that in will challenge many of the conclusions reached by OI and NRR their Reports.

Right to a Hearing The summary determination of material facts in dispute would effectively deny the Employees their right to a hearing on the allegations of TMI-2 leak rate data falsification. The Employees recognize that this proceeding is discretionary and that it will not be used to deny any individual the statutory right to a hearing if a formal enforcement or licensing action is initiated as a result of this proceeding. CLI-86-03, 23 N.R.C. 51, 51-52.

However, this proceeding will be used by the Commission to decide whether it should initiate a formal enforcement or licensing action. 22 N.R.C. at 883-84; 23 N.R.C. at 51. Thus, it is in the interest of fundamental fairness that the Employees receive the hearing authorized by l

for the the Order. This hearing will permit them to present, first time in seven years of NRC, GPUN, and federal grand jury investigations, evidence explaining the events and circumstances associated with the allegations of their misconduct. The witnesses proposed by the Employees must testify, and the questions asked by the Employees must be f

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i answered, before the Presiding Board can adopt valid findings of fact.

Scope of the Hearing The Aamodt Motion urges the Presiding Board to focus on the involvement of management in the alleged falsification of TMI-2 leak rate data by summarily determining material facts in dispute. This objective is consistent with the apparent intent of the Aamodts in intervening in this proceeding. In support of their Petition for Leave to Intervene filed on February 8, they submitted the Aamodt Comments Concerning NRC Staff Review of GPU v. B&W Cour t Trial Transcript and Motions to Reopen Record of Restart Proceeding (April 16, 1983) in Docket No.

50-289-SP (Restart) (" Aamodt Comments") . The Aamodt Comments addressed the involvement of management and, specifically, that of Mr. Robert C. Arnold, in its motion to reopen the record in the TMI-l restart proceeding. The Employees opposed the Aamodt Petition for Leave to Intervene in part on the basis of that interest in Mr. Arnold, who is "outside the scope of [this]

hearing." 22 N.R.C. at 881, see Response of Numerous 1978-79 Employees of Metropolitan Edison Company to Aamodt Petition for I

Leave to Intervene (February 25, 1986) at 4.

l The tenor and content of the Aamodt Motion confirm that the Aamodts are still intent on investigating the involvement of management in the allegations of leak rate data falsification.

Aamodt Motion at 3-5. Such an investigation is outside the scope of this proceeding. The Aamodts request that the

Presiding Board subpoena the minutes of the meetings of the Met However, Ed Board of Directors from March 1978 to March 1979.

in instituting this proceeding, the Commission accepted the determination of U.S. Attorney David Dart Queen that these Directors were not involved in the alleged falsification. 22 N.R.C. at 879, 881. The Aamodts also request that the Presiding Board subpoena Mr. Michael J. Ross. Like the Met Ed Directors, Mr. Ross is outside the scope of this proceeding, id. at 881, because the Presiding Board is directed not to address "any issue regarding any alleged knowledge or involvement" of these individuals. Id.

Aamodt Response to OI Report In reply to the Aamodt response to the OI Report, the Employees respectfully reiterate their objection, which the Presiding Board correctly inferred in its Order of July 3, to the addition of this Report to the record of this proceeding. -

See Response of Employees to Memorandum and Order of February 14, 1986 (March 3, 1986) at 4; Response of Employees to Part II.C. of Memorandum and Order of March 26, 1986 (April 18, 1986) at 4; Response of Employees to Memorandum and Order of May 22, 1986 (June 6, 1986) at 1-2.

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Conclusion For the foregoing reasons, the Aamodt Motion should be denied.

Respectfully submitted, LeBOEUF, LAMB, LEIBY & MacRAE By 4(NN d(

(fartner G Of. Counsel: 1333 New Hampshire Avenue, N.W.

Michael F. McBride Suite 1100 Washington, D.C. 20036 Molly S. Boast James W. Moeller (202) 457-7500 Marlene L. Stein Smith B. Gephart KILLIAN & GEPHART Jane G. Penny 216-218 Pine Street Terrence J. McGowan Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorneys for Numerous 1978-79 Employees of Metropolitan Edison Company

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE PRESIDING BOARD

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In the Matter of )

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

FALSIFICATION )

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CERTIFICATE OF SERVICE I hereby certify that I have served copies of " Response of Employees to Aamodt Response to OI Report and Motion for Summary Disposition" by deposit in the United States mail, first class, postage prepaid to the following persons this 18th day of July 1986:

Administrative Judge James L. Kelley, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge Glenn O. Bright Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge Jerry R. Kline Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

i I

I *

'n .

r Jack R. Goldberg, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Branch (3)

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ernest L. Blake, Jr., Esq.

Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.

Washington, D.C. 20036 James B. Burns, Esq.

Isham, Lincoln & Beale Three First National Plaza Suite 5200 Chicago, IL 60602 Michael W. Maupin, Esq.

Hunton & Williams P.O. Box 1535 Richmond, VA 23212 Ms. Marjorie M. Aamodt 200 North Church Street Parkesburg, PA 19365 Ms. Marjorie'M. Aamodt P.O. Box 652 Lake Placid, NY 12946 D - m.>L.>.a o i James W. Moeller